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Sunday, December 11, 2011

A Holiday Editorial on Getting Litigants to Play Nicely: "No, Virginia, There is No Cooperation Fairy."

It’s safe to say that judicial urging and the 2009 Sedona Conference “proclamation” calling for cooperation in the discovery process apparently has not had quite the effect of a Mafia Commission edict.  

Surprising?

Litigators are adversarial.  Trial attorneys more so.  Civil litigation often involves issues that are complicated.  Many times parties cannot be sketched in black or white.  Charcoals are needed. 

And yet, litigation lawyers, often unconsciously, adopt a “there’s us, and there’s them” outlook, adopting their clients, and saying things like “we didn’t do anything wrong” when discussing the actions of their clients.
It’s stitched into the litigation fabric and into attorneys.  Not to mention the fundamental mandate about zealous advocacy.

So, how realistic is it to expect attorneys to compartmentalize in such a way?

Sure, in some cases real cooperation does—and will-- happen.  But as someone more cynical than myself might point out, those cases probably never should’ve gotten to a judge anyway.  

But for the greater number of Hatfield and McCoy litigations (and given the lack of civility in legal practice more and more mundane fare takes on the appearance of a blood feud), will judicial or policy group proselytizing alone prompt any measure of voluntary compliance?

True, I concede, there is the apocryphal Christmas Truce during WWI.  A better lesson for the judiciary probably comes from Cnut.  One can’t simply order back the tide.  

Asking lawyers to --  from their perspective and possibly that of their clients -- forego their deep-rooted sense of responsibility to the best interest of their clients, not to mention the likely reaction of clients themselves to their lawyers making concessions, is proving to be too much.  There is to some extent, as they say in business compliance circles, a misalignment of incentives.  And when this happens, best laid plans “gang aft agley”.

A fundamentally different approach has to be considered. Think honest broker.

Now, the holiday is upon us, and it’s a natural time to sentimentalize… to wax hopeful.  But as Franklin Pierce Adams of the Algonquin Roundtable observed about December 26th:  “Christmas is over, and business is business.”

So with the end of the holidays soon upon us, let me bluntly argue for the end of the age of innocence,  for the acceptance of a certain reality, and invite a discussion on addressing the problem differently:

“No Virginia, there is no cooperation fairy.”

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