Discovery sanctions affirmed for game playing; lawyer claims duty to be zealous -- "even at peril to myself."

The opinion's here.  It deals with all-too-typical petty game playing during discovery, and the opinion is appropriately dismissive of the behavior of plaintiff's counsel.  (For example, when hit with an interrogatory requesting a statement of "economic damages" -- which is a statutory term of art in California and is, for example, incorporated in the official form interrogatories -- the plaintiff's lawyer responded, essentially (I'm paraphrasing), with, "since you didn't specifically cite the statute defining 'economic damages,' I must assume you have some other unknowable definition in mind.")

What caught my eye was the reported response of the plaintiff's counsel to the appellate opinion that was so dismissive of his behavior.  Unfortunately the whole article is behind a registration wall.  The quote:

"I wasn't sanctioned.  My client was sanctioned.  Nobody has ever suggested that I did anything wrong.  And my job under the rules of ethics is to be my client's zealous advocate -- even at peril to myself."

You could use that quote as a PR exam question and ask the students to critique each sentence! 

Comments

[Brad Wendel]

This is the #1 reason why the expression "zealous advocacy" needs to be purged from the discourse of legal ethics. It makes lawyers think their job is to be attack dogs or, more theoretically, to defend client interests rather than protect client entitlements.

I take the point, btw, made forcefully by Monroe Freedman and others, that in some contexts the problem facing clients is that their lawyers are insufficiently zealous. That's true in particular for indigent criminal defendants. Maybe it's okay to remind lawyers representing those clients that they have obligations of competent, diligent, vigorous, loyal representation. Talking in terms of a general obligation of "zealousness," however, has caused many misunderstandings in legal ethics, and this nitwit lawyer's quote is a prime example of one of them.

[Alberto Bernabe]

Here is the link to the opinion itself: http://www.courtinfo.ca.gov/opinions/documents/A123168.PDF

[Monroe Freedman]

Brad,

I don't think abandoning a traditional ethic -- zealous advocacy -- is going to do anything to enlighten the nitwits among us. He might just as easily have said that he was following Brad Wendel's ethic by being "vigorous." Or, indeed, that it was his obligation to protect his client as he did as an "officer of the court."

As you anticipate, I think that the appalling lack of adversarial representation in indigent criminal defense -- consistently referred to as a "crisis" by one responsible authority after another for four decades -- can only be worsened by reassuring the hacks (and the judges who knowingly reappoint them in order to move their calendars) that zealous advocacy is no longer even an aspiration.

[Monroe Freedman]

Also, I will have to remember (and teach to my students) an interesting forensic technique. It goes like this:

Forget about the merits of your position, or the pernicious effects of rejecting it. If we don't reject it, some nitwit will misunderstand it and do something stupid.

Thus: We have to get rid of the First Amendment, because if we don't, some nitwit will misunderstand it and shout "Fire!" in a crowded theater.

The potential is limitless.

[john steele]

Here's how I teach the point. Through 'roles,' like litigator, counselor, negotiator and evaluator, lawyers undertake substantive duties to non-clients, duties that cabin the lawyer's duty of warm zeal to the client, duties that prohibit the lawyer from taking some acts that she might otherwise do for the client's benefit.

The quoted lawyer shows close to zero appreciation of those duties.

Brad, I'm a fan of zeal, properly understood. But when I read that quote there was a second or two when I would have purged the phrase as well.

[Monroe Freedman]

Ironically, there seems to be more misunderstanding about the meaning of zeal among those who oppose it than among those who favor it.

Lord Brougham never advocated violation of law in the name of zeal. His client had been charged with adultery. He threatened, if the the charges weren't dropped, to show that she couldn't have been an adulterer because her "husband" was a bigamist, having secretly married another woman before purporting to marry her. Yes, such a revelation would have had extremely serious political and social consequences, but it was up to others to forestall them, and they did.

I part from Henry Brougham and John Steele on one point. When I teach the subject to my students, I add to the list of limitations on zeal -- i.e., obedience to the law and the disciplinary rules -- concern for one's loved ones. (Do I sense a bunch of "aha's!" and "gotcha's!" coming?)

[asdffasd]

Based on the facts in the judicial opinion, plaintiff's counsel was appropriate and should not have been sanctioned.

The judge objected to three actions by the plaintiff's counsel: (1) not using a statutory definition of "economic damages"; (2) demanding interrogatories not refer to previous interrogatories; and (3) requiring written confirmation that defendants wanted to use the statutory definition, and requesting and additional 30 days notice.

As to (1), the phrase "economic damages" is indeed extremely vague. There are multiple definitions out there, depending on how indirect or contingent the damage must be. That plaintiff cited one of these definitions is not necessarily evidence that defendants had accepted this definition. Moreover, the plaintiff did not, according to the opinion, substitute an "unknowable" definition, but in fact substituted a specific definition. It is frankly difficult to assess plaintiff's position without knowing a bit more about the litigation but on its face the objection may be reasonable.

As to (2), however, the plaintiff seems to have a very strong argument on the merits. The California Civil Code requires interrogatories to be full and complete in itself, and the special interrogatory number 2 referred to the answer in special interrogatory number 1.

The judge objected to the plaintiff's reasoning by disregarding the literal language of the applicable statute in favor of its supposed legislative history and purposes. Anything can be proved with enough time to research legislative history, and it is hardly sanctionable for an attorney to rely on statutory text and not legislative history. The judge also ignored that a purpose of the rule is to ensure there is enough time to answer each interrogatory. Where an interrogatory answer depends on another interrogatory answer, the one may simply not be ready in time to answer the other. The rule also insures it is simpler to respond to interrogatories, as they can be partitioned. Whether or not the purposes of the rule applied here, the point is that the defendants did violate a clear statutory rule of discovery, and plaintiffs were right to object.

Finally, the most improper of the judge's inferences is that plaintiff's meet-and-confer behavior as to the definition of economic damages was improper. Plaintiff agreed to use the statutory definition, but required defendant to put his request in writing and afford an additional 30 days to respond. There is nothing improper about wanting orally-agreed to terms set forth in writing. This is hardly onerous, it requires 15 minutes of time to draft and fax a letter. And the 30 days to respond is needed because the definition of economic damages is changed, so the plaintiff has to research the damages under the new damages.

[asdfasdf]

Just to reiterate, it does sound to me like the plaintiff's argument that "economic damages" was undefined may well have been frivolous. But I cannot be certain from the facts adduced in the judge's opinion. If it was frivolous, then sanctions would be warranted.

If the argument was not frivolous, however, then the further fact that the plaintiff's attorney wanted the definition that was used to be in writing as well as 30 more days to respond does not in itself appear to be abusive.

Furthermore, based on the judge's opinion, I did not find the argument that interrogatory 2 was not "full and complete" because it referred to the results of interrogatory 1 necessarily to be frivolous or even incorrect. The judge seemed to read interrogatory 2 as referring only to the text of interrogatory 1, but I think the better reading was that it referred to the answer to interrogatory 1, in which case I think it may not have been full and complete.

I have not independently reviewed the case law or the case, and am basing these assessments purely on the information in the judge's opinion upholding sanctions.

[Cheap Computers Canada]

The lack of adversarial representation in criminal defense is surely turning into a critical situation.