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The Goddess of Discovery Arrives in the Blogosphere

A criminal defense lawyer I know used to ask me "just exactly what is it that you 'litigators' do everyday anyway?'"

What we do, my friend, is discovery.  

Discovery. 

Saying that discovery is part of litigation practice is like talking about the wet part of the ocean.

How do you know when you're finally finished with legal practice?  When do the heavens open up and angels descend with the news that you've finally done enough and may now go and do that which you truly love? 

It's usually a discovery moment.

For one of my former law partners, it came on the heels of a five page meet and confer letter.  Single spaced.  When my friend's secretary came into her office with the written response, the expression on her face ranged between shock and amusement. 

"You're not really going to send this, are you?"

"Yes, I am.  Let me sign it."

"No no no no no no no.  I can't let you do this."

"Yes you can.  Let me sign it."

"Pleeeezzzzzzzzzzzzzzzzzz."

"Sign."

Here's the response that struck fear into the heart of an overworked legal secretary: 

Whatever.

And yes.  She sent it.

For those of you who have not yet reached the promised land of Discovery Whatever, I've got very very very good news for you.

The Discovery Referee Speaks!  And she is a Goddess.  Goddess Kathy Gallo to be exact.

Yesterday's post reminds us what we ought to know intuitively during our first deposition - the Court Reporter is the Goddess of the Deposition (my own stories of first encounters with the Sphinx of the Transcript are here)

The tale Kathy tells is likely the most outrageous but certainly not the most uncommon example of attorney incivility to court reporters that I've seen in a long long time.  That post, and the ones that precede it lead me to believe that Kathy will preside at the top of the ABA Law Blog 100 before I can finish saying "thank god I got out before e-discovery."

I know of only one discovery referee who rivals my affection and respect for Kathy -- the brilliant,  persistent and omnipresent Eli ("and your backup argument would be?") Chernow.  Eli swore my dad in as Superior Court Commissioner before I went to law school.  That alone gives him a warm place in my heart.  He also let my step-son (then my paralegal) ask his first deposition questions in an antitrust action that had become so over-heated we needed the wise calm of a discovery umpire to get us from, "could you spell your name for the Court Reporter" to "I have no further questions of this witness."  Only my step-son (now at Irell) and Eli ever did understand the complicated Rand statistical study that underlay the plaintiffs' conspiracy allegations.

The Court Reporter

As Kathy rightly notes - the Court Reporter is the Goddess of the Deposition and don't you go forgetting it.  The Court Reporter is your very own home court advantage or you greatest nemesis.   You think the Sphinx of the Conference Room doesn't talk to her friends, the Discovery Referee, or opposing counsel if you disrespect her?  You think she doesn't have the discretion to transcribe or not transcribe every "um," "uh," and "arrrrrrr, um, uhhhhhh" you mutter as you struggle with the guy who says "yes," "no," "I don't know," and, "I don't understand your question, could you please rephrase it" for hours, even days on end. You think she can't make marking your own documents as exhibits the hell that populated your young adult law school dreamscape?  You think the Court Reporter in incapable of taking revenge?  

Think again.

How Do I Get from My First Admonition to My Final Discovery Motion without Humiliation?

Until a couple of weeks ago, the answer to this question was - you don't.  The only way to learn how to mark an exhibit, how to speak to a court reporter, know whether she actually strikes anything from the record, respond to a foundational objection, how to mark an exhibit without shame, how to respond to the other side's instructions not to answer and how to lead your professional life without yourself becoming a screaming  A**hole, was to first make a complete and utter fool of yourself.  That's how we learn to become lawyers young men and women.

Now that the Goddess of Discovery has arrived on the shores of the blogosphere, however, you might, just might, avoid humiliation and become a lean, mean discovery machine by clicking on Kathy's RSS feeder and reading her posts every single day.

Got it?

Got it!

Now go get 'em champ!

Comments (1)

Read through and enter the discussion by using the form at the end
Joe Markowitz - July 27, 2010 8:38 PM

One reason that discovery comprises so much of civil litigation practice is to keep law firm associates busy. When I was a law firm associate, I did spend a lot of my days doing discovery and discovery motions. Now that I don't have any associates to keep busy, I don't spend nearly as much time doing discovery, and I am no less prepared for trial or settlement. I never send meet and confer letters. If I need to meet and confer, I pick up the telephone. If my adversary sends me a meet and confer letter, I write a short response back saying that I will do anything within reason to avoid discovery motions, including amending any interrogatory answer they do not find sufficient, and negotiating any other discovery problem. I hardly ever file discovery motions anymore, and if my adversary files one, my response is that their motion was unnecessary because I offered to negotiate any discovery problem they had.

If we view discovery as an opportunity to create issues to litigate about, discovery can be as time-consuming as we want. If we instead view discovery as an opportunity to negotiate, it need not be terribly time-consuming. And if we limit what we ask for in discovery to the things we need to prepare for trial, we need not spend our lives doing discovery.

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