The Wish List of A Civil Practitioner
Author: MURRAY I. WEINER
Like every practitioner, or at least every practitioner who sends bills to his clients or must otherwise justify his time and efforts, I am constantly amazed by the tremendous expense of dispute resolution. In an effort to make a small dent in the cost of litigating civil cases, I offer the following suggestions -- if implemented, these may reduce the cost to the parties and a source of frustration for the bench and the civil bar.
Wish No. 1: Do Away with Discovery Disputes!
Proper preparation of a civil case requires at least minimal discovery. Discovery is time consuming and expensive. Discovery disputes usually are resolved by agreement, or quite frequently by the acquiescence of the party requesting discovery. Often we decide the person withholding the document or information is correct. Other times we decide that it is simply not worth the fight. However, when you believe the withheld information is discoverable and may be essential to your case, and the other side will not relinquish it, your only option is to ask the Court to intervene. You then are forced to do two things. First, you must spend time and money explaining in a pleading why (or why not) information buried under some distant rock is material to the dispute. Second, you must wait, and wait, and wait some more. And why do you wait? Because discovery disputes are just as annoying to the Court as to everyone else, and because in the grand scheme of things, discovery disputes usually are given the lowest priority.
Wrong! Time is money. Elevate the resolution of discovery disputes to priority number one. Six months of treating discovery disputes seriously, and our Courts will not have to deal with a frivolous discovery dispute for years.
My suggestion? Ban the filing of pleadings other than certificates of compliance under C.R.C.P. 37(a)(2), and hold hearings on the record within fifteen (15) days of receiving notice of a discovery dispute. Divisions of our Court who handle civil cases can set aside one-half hour at 7:30 a.m. and set all discovery disputes that arise in that division at the next hearing date. Require in person attendance, follow the rules precisely, and enforce the sanctions set forth in C.R.C.P. 37 and 11.
Before long judges with civil dockets will find themselves with a quiet half-hour twice a month without interference from the bar. Better yet, discovery will actually be accomplished without Court intervention. Litigants will spend less, and there will be more time for the Court to focus on other more important matters.
I am aware that in all civil cases Judge Miller issues an "Order on Discovery Protocol" which addresses many discovery issues and problems confronted by the civil bar. Great idea! The Order is clear and well-written. Division 16 also requires a status conference on all discovery disputes prior to the filing of a motion to compel. Unfortunately, however, priorities being what they are, it can take a long time to get a status conference to resolve the discovery dispute.
Elevate resolution of discovery disputes to the top of the list and let=s see what happens.
Wish No. 2: No More Fee Hearings!
Who among us enjoys fee hearings? Expensive torture for all involved. I recently attended a lengthy fee hearing in another judicial district. What an awful experience. I listened to an expert tell the judge that the work in question could have been done by any first year lawyer, that everything should have been done differently, and that the fees in this complex commercial dispute between two very large business entities were wildly excessive. Who was the terrible attorney who "did too much" and should have done it all differently? It was me -- the lawyer who won the case, and whose client received an award of attorneys' fees as the prevailing party pursuant to a written contract. The Court awarded my client almost all of his fees (which award was significantly more than the compromise amount offered to avoid fighting over fees). However, did we really have to suffer the additional considerable expense of a half day hearing with dueling experts on the reasonableness and necessity of the fees?
I am not naive. We cannot do away with fee hearings. Yet, one simple court-imposed requirement may eliminate many of them. Consider requiring any party challenging the hourly rate or amount of an award sought by a party entitled to attorneys=' fees to produce along with his fee objection a copy of the bills sent by the attorney or firm to the client in the case, along with a statement signed pursuant to the requirements of C.R.C.P. 11, disclosing the total fee charged to that party. Attorneys whose hourly rate is at or near the rate of the attorney hired by the prevailing party, or whose total fees approximate those of the attorney seeking an award will think long and hard before filing an objection. If the amount of work required by both sides was approximately the same, and the bills are also approximately the same, the objecting side will not have any credibility with the court. Even if the bills are not identical, an objecting attorney who is aware that his bills will be subject to the same level of scrutiny as those of the prevailing party will likely make an effort to settle the fee dispute rather than expose himself to the kind of scrutiny he desires to inflict on the prevailing party.
In fee hearings, the prevailing party faced with an objection to the amount of fees often asks to see the bills of the other side. The court rarely grants such a request. Make production of the bills of the objecting party a condition precedent to the filing of a fee objection, and let's see if we can all avoid a fee hearing or two.
In sum, I do not really believe we can do away with discovery disputes. At the same time, however, I do believe the above (and other) suggestions may help to relieve the bar, the bench and our clients of some unnecessary trouble and expense.
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