A bulldog. A shark. A fighter. Relentless. To many lay people, and even some attorneys, terms like these are what come to mind when asked what makes a good trial lawyer. And there is some truth there. All lawyers are required to zealously advocate for their clients. It says so right there in the comments on ABA Model Rule of Professional Conduct 1.3.
But this mind-set, along with the zero-sum nature of litigation, can lead trial lawyers to engage in oppositional behavior for its own sake. This elevates the tactical question of “Can I win this point?” over the more important strategic question of “Will fighting on this point contribute to achieving my client’s goals?” A good trial lawyer knows that giving ground on a discrete issue may do no harm and can even yield surprising benefits. Here is a story from my practice that illustrates this point.
A few years ago, I represented an individual in a product liability case against a large national corporation. Opposing counsel’s discovery requests were a textbook example of overreach. Many of the interrogatories and requests for production sought information that was irrelevant (even under the relaxed relevancy standard of contemporary practice), personally invasive, and not reasonably limited in time. I believed that I could make valid objections to over half of the discovery requests that, if challenged on a motion to compel, would result in their being either disallowed entirely or scaled down dramatically.
Before drafting the objections or moving for a protective order, I discussed the discovery requests with my client. I determined that none of the information requested in the interrogatories would harm his case or cause him personal embarrassment, and that he had access to only a few dozen pages of material responsive to the requests for production. Then I did something that went against every trial lawyer instinct within me: I provided full responses to the defendant’s discovery requests, without any objections at all.
After serving the responses, I copied the defendant’s discovery requests, switched the names around, and served them on opposing counsel. A few weeks later, I received the defendant’s responses, which included objections and refusals to answer most of the requests, on the same grounds I had identified when reviewing them on behalf of my client. I called the opposing counsel and pointed out that the discovery requests he had objected to were essentially the same ones he had served on my client. Therefore, his objections were tantamount to an admission that he served discovery requests on my client knowing that they lacked a proper foundation under the discovery rules. I politely left unsaid the logical conclusion of the statement . . . “and that is sanctionable behavior.”
For his part, the opposing counsel was surprised and chagrined. He had used a prefabricated set of discovery requests from his firm’s case files without reading through them thoroughly, and he did not recognize them as such when I sent them back. A few weeks later, I got complete responses to the discovery requests, which yielded ample information to evaluate the claims and reach a reasonable settlement. I would not have been able to achieve that result if I had unthinkingly followed my first instinct to object to the discovery requests because I could “win” on the objection, without considering whether such a “win” would actually benefit my client.
Since my initial experiment, I have used this approach several more times—always with excellent results—and I heartily recommend it in cases where (1) your opponent controls the bulk of the discoverable material, or full production will not otherwise be problematic for your client; (2) responding fully to the other party’s discovery requests will not prejudice your client’s interests; and (3) your client understands that he or she has valid objections and knowingly waives them.
This incident has also taught me to bring a critical eye to creating my own discovery requests. When propounding discovery, I first ask myself whether and how the information sought is likely to help my client. If I cannot easily answer these questions, that doesn’t necessarily mean that I won’t issue the request—because sometimes discovery is necessary to determine the extent of the information I don’t possess—but rather that I should be cautious. I try to tailor requests to the specific facts of the case, avoiding generalized inquiries where possible. And most importantly, I ask, “What objections would I raise if the opposition propounded this request to my client?” If there are several good answers to that question, I generally avoid making the request.
The principle of discarding the “fight first” mind-set pays dividends in every aspect of litigation, not just discovery. While achieving success in litigation inevitably overlaps with denying success to the opposition to some extent, it is a mistake to regard the two as interchangeable. Denying the other party what they want should be a means to an end, not an end it itself.
