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July 2016 Executive Director’s Letter: What Can A Lawyer Do?

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Lockwood_KarenThe corners and boundaries of civilian violence are changing. I am going to talk about just one incident to illustrate.

Last night in Dallas, amid a peaceful demonstration against police shootings (largely by white officers), there was a sniper. He was African-American. He shot the police. He shot towards and at the largely black group marching for justice, and at an important voice against urban violence – Black Lives Matter. His shots hit their mark.

They cannot hit our freedom to assemble, or our non-violent demonstrations and marches. They must not. Nor can they hit the peaceful movement calling for just and appropriate police action. What is more, this unique Dallas event showed how good relationships among police officers and African Americans can look in urban centers. Police-Black Citizens strife was not at play in the demonstration itself. Yes, it was the topic. No, there was little of no such rivalry or aggression in Dallas demonstration. Quite the opposite, the officers dressed without riot gear, used and benefited from good credibility and relationships they have worked hard to develop, and worked as humans and professionals to maximize the peaceful (and effective) event.

So, the police officers are to pay? Of course not.

This cross-cutting of race, violence, protest, and freedom of speech exemplify a cauldron of actions based on automatic bias in our country. (You can think immediately of other examples in the political realm.) This event is unique. With that come an opportunity and a responsibility.

The opportunity is for us to use this moment to discuss bias and assumptions nationally. Indeed, shortly after the event and in the time since I wrote this blog, social media and new outlets have raised some of those issues. But we can hold the moment for longer than a news flash. We must combat the thinking that some groups in our diverse and heterogeneous society — a cultural trait which is our national treasure – are more privileged than others to hold sway, exert power, and predominate simply as a matter of privilege. No one group has a “propensity” to violence or a uniform viewpoint of what is right.

The responsibility accrues from our special status as members of the bar. The Dallas shootings situation deserves our reflection as lawyers. But we must act too, in our own cultures and communities. We swore to uphold our Constitution and to preserve and pursue justice. What inspiration for action do we gain from the Dallas events?

In the same vein, as a clergyman, Reverend Jeff Hood shared his insights that morning after. He was there in Dallas. In fact, he was one of the organizers of the day’s successful demonstration. At the front of the march, he was one of the first to hear the sniper’s shooting. He told NPR:

“Ultimately, I spent those three hours talking to people, asking the question, ‘Why? Why? Why is this happening?’ The only answer I know now, and the only answer I knew then, was turn to love, we’ve got to turn to love, we’ve got to stop shooting.” (Rev. Jeff Hood, Dallas, July 8, 2016, reported in CNN report 7-8-2016

As lawyers, and as citizens with that special knowledge and duty, what is it that lawyers are trained for, and good at, that our national society needs? You know how to answer. Share your answer with me and with each other

If clergy citizens can call for love and find ways to encourage it, lawyer citizens can call for what? How about personally acting locally and constantly to call for –

  • Interpersonal respect that fuels open discussions, listening skills, and cohesion necessary to draw out our differences tolerably (and long enough to think, rather than react with violence).
  • Self-awareness of hidden presumptions (starting with ourselves as examples).
  • Accountability for one’s beliefs and generalized judgments (in us as well as our candidates).
  • Real conversation among disparate groups (locally; just start conversing).
  • Teaching the Constitution, why it works, and how we risk sacrificing it (for all ages, and community-based).

These are things we lawyers are good at. Are we using those talents as opportunities?

Karen_ShortSig

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

An Overview of the 2015 Amendments to the Federal Rules of Civil Procedure

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written by NITA guest bloggers Tereza Horáková and Michael J. Dale

I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics.

This quote comes from the 2015 Year-End Report on the Federal Judiciary issued by the Chief Justice John G. Roberts. Chief Justice Roberts[1] was addressing the protracted, antagonistic, and wasteful discovery practices often present in today’s litigation. The eradication of such practices became the main focus of the Amendments to the Federal Rules of Civil Procedure that went into effect on December 1, 2015 (hereinafter the 2015 Amendments). The 2015 Amendments represent one of the most significant changes to the Federal Rules of Civil Procedure in years. In the words of Chief Justice Roberts himself, they provide a concrete opportunity for actually getting something done[2].

While the 2015 Amendments address several topics, the most important changes affect Rule 26 defining the scope of the discovery and, most notably, electronic discovery. This post provides an overview of the impact and meaning of the 2015 Amendments to Rule 26 and how it will affect everyday federal litigation practice.

Return of Proportionality
A potential game changer with respect to discovery practice is the re-introduction of proportionality. The 2015 Amendments restore six proportionality factors to their original place in Rule 26(b)(1) and point out that parties must consider proportionality in all aspects of discovery. In particular, the Rule 26 was amended, with deletions stricken through and additions underlined:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. [3]

Proportionality: Not a New Concept
The proportionality factors were first adopted in 1983 as an integral part of the scope of discovery provisions, with the objective to deal with the problem of overdiscovery and encourage judges to be more active in identifying and discouraging discovery overuse[4]. Ensuing amendments separated the proportionality language from the integral scope of discovery provision into a separate paragraph[5]. While the 1993 amendments made clear that the separation was intended merely for ease of reference and explicitly encouraged their active judicial use, the courts were nevertheless reluctant to limit the use of the discovery devices[6]. The amendments adopted in 2000 incorporated an otherwise redundant cross-reference and further urged the courts to apply the proportionality limitations, albeit to no avail[7].

It was the 2015 Amendments that finally brought a change. Before the 2015 Amendments, the proportionality factors appeared in subsection Rule 26(b)(2)(C), which governs court-ordered limitations on discovery and, therefore, operated as a limitation used in motions for a protective order[8]. The return of the proportionality factors to their original place in Rule 26(b)(1) makes them again an express component of the very definition of the permissible scope of discovery[9].

Underlying Reasons for the 2015 Amendments
The reasons for doing so are directly connected to the explosion of discoverable information. The technological progress of the last decades has created ample opportunities for abuse of discovery tools as instruments of delay or oppression[10]. With the advance of e-discovery, its cost apparently often exceeds its utility and the potential for abuse is ever more present[11]. As a consequence, one of the goals of integrating proportionality into the definition of discovery in the Federal Rules of Civil Procedure is to reduce its costs and remind both the courts and parties what should and should not be discoverable in any case[12].

The 2015 Amendments further advocate for active judicial involvement and supervision especially early in the case[13]. However, judicial activism is also advised later on in cases where parties cannot overcome on their own important differences leading to ineffective case management[14].

“The Point Is to Make Sure We Don’t Look Just at the Dollars”
The 2015 Amendments point out that monetary stakes are only one of the proportionality factors to be considered[15]. In fact, the courts should approach the factors in an evenhanded manner. Discovery requests addressed to an impecunious party do not automatically foreclose discovery, just as a party’s wealth does not justify limitless requests[16]. Similarly, important personal or public issues often connected to public policy such as discrimination or First Amendment cases must be taken into consideration even if they are involved in litigation over small or no amounts of money at all[17]. Moreover, the 2015 Amendments recognize that some cases involve an information asymmetry where a party seeking discovery of information may know little in comparison to the other party[18]. This asymmetry may justify one party bearing heavier discovery costs than the other.

Deleted Provisions
While the 2015 Amendments added some language, they also deleted three sections of the Rule 26(b)(1) for various reasons.

First, it is the enumerative list of discoverable matters [19] (“. . . existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter”). The Advisory Committee on Civil Rules has explained that the list is so deeply entrenched in practice that the language is simply redundant. Nevertheless, the list of discoverable matters remains the same regardless of eradication of the express language of Rule 26(b)(1)[20].

Second, the 2015 Amendments omit the provision authorizing the court, for good cause, to order discovery of any matter relevant to the subject matter involved in the action. As it turns out, the scope of discovery with respect to matter relevant to a claim or defense and matter relevant to the subject matter in fact overlaps and the latter was rarely employed[21].

Third, the 2015 Amendments modified a problematic phrase regarding relevant but inadmissible information that appears reasonably calculated to lead to the discovery of admissible evidence. The “reasonably calculated” test was sometimes incorrectly interpreted as a general scope of discovery tied to the probability of discovering admissible evidence which in effect eliminated all other limits[22]. The language is now replaced with a direct statement that information within the scope of discovery need not be admissible in evidence to be discoverable, such as hearsay testimony solicited during a deposition[23]. In this way, Rule 26(b)(1) makes clear that discovery of nonprivileged information not admissible in evidence remains available as long as it is otherwise within the scope of discovery[24].

Relaxation of the Early Discovery Moratorium
Another important change in the 2015 Amendments concerns the time for serving a request for production under Rule 26(d). Prior to the 2015 Amendments, a party could not usually serve any discovery requests before meeting for a conference under Rule 26(f), which typically happens months after a complaint is filed[25]. The 2015 Amendments allow requests for production to be served as soon as twenty-two days after service of process regardless of whether the Rule 26(f) conference already took place[26].

The aim of allowing early requests for production was to make Rule 26(f) conferences more productive. Specifically, negotiations at the conference may be more fruitful with the knowledge gained from each party’s initial set of requests for production, thus facilitating a more focused discussion[27]. On the other hand, it is arguable whether parties will seize this new opportunity because doing so would provide the opposing party more time to prepare objections[28]. Furthermore, the early requests may turn out to be inconsistent with agreements later concluded at the Rule 26(f) conference[29].

Effect on (Pending) Matters
Although it would be premature to jump to conclusions as to the impact of the 2015 Amendments, there are already some signs that courts have been making use of the amended Rule 26 and its proportionality principles. For example, in Henry v. Morgan’s Hotel Group, a court in the Southern District of New York declined to grant a Rule 45 subpoena because the discovery request for “all documents and communications” was determined to be overly broad and the requested information was not relevant to the disputed issues[30].

Similarly, in Gilead Sciences v. Merck in the Northern District of California, the court declined to grant additional discovery[31]. The court found that no reason had been provided to doubt the proof tendered by the plaintiff, and given the cost and potential delay, additional discovery on that topic was precisely the kind of disproportionate discovery that Rule 26 was intended to preclude[32].

Conclusion
While it is undeniable that the 2015 Amendment stirred up the litigation waters of federal court discovery, its true impact on practitioners and litigants and potential to reshape certain discovery practices remains to be seen. Finally, further information about the 2015 Amendments may be found in the entire amendments packet sent to Congress.

————————————————————————————————————————-

Tereza Horáková is a graduate of Charles University, Prague, Czech Republic, and a dual degree student at Nova Southeastern University College of Law where she is a research assistant to Professor Michael J. Dale. She can be reached at tereza@hotmail.cz.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

[1] John G. Roberts, 2015 Year-End Report on the Federal Judiciary 11 (2015).

[2] Id.

[3] Fed. R. Civ. P. 26(b)(1).

[4] See Fed. R. Civ. P. 26 Advisory Committee’s Notes to 2015 Amendment (hereinafter 2015 Notes).

[5] Id.

[6] Id.

[7] Id.

[8] Leeron Morad, Andrew Bramhall, Digging Through The New Federal Rules of Civil Procedure, Law360 (May 26, 2015), http://www.law360.com/articles/654798/digging-through-the-new-federal-rules-of-civil-procedure (hereinafter Law 360).

[9] Id. 17, 2015), http://www.metrocorpcounsel.com/articles/32726/just-follow-rules-frcp-amendments-could-be-e-discovery-game-changer.

[10] 2015 Notes.

[11] Jennifer A. Brennan, Hon. John M. Facciola, Hon. Mary M. Rowland, Just Follow the Rules! FRCP amendments could be e-discovery game changer, Metropolitan Corporate Counsel (Jul. 17, 2015), http://www.metrocorpcounsel.com/articles/32726/just-follow-rules-frcp-amendments-could-be-e-discovery-game-changer.

[12] Law 360.

[13] 2015 Notes.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Law 360.

[19] 2015 Notes.

[20] Id.

[21] Id.

[22] Id.

[23] Jennifer A. Brennan, Wendy Butler Curtis, FRCP Amendments: The Early Returns Courts Show Signs of Heeding the Call for Early and Active Management, Metropolitan Corporate Counsel (Mar. 3, 2016), http://www.metrocorpcounsel.com/articles/33591/frcp-amendments-early-returns-courts-show-signs-heeding-call-early-and-active-managem.

[24] Id.

[25] Law 360.

[26] Fed. R. Civ. P. 26(d).

[27] Law 360.

[28] Id.

[29] Id.

[30] Henry v. Morgan’s Hotel Grp., Inc., No. 15-CV-1789 (ER)(JLC), 2016 WL 303114, at *2 (S.D.N.Y. Jan. 25, 2016).

[31] Gilead Scis., Inc. v. Merck & Co, Inc., No. 5:13-CV-04057-BLF, 2016 WL 146574 (N.D. Cal. Jan. 13, 2016).

[32] Id.

June 2016 Executive Director’s Letter

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Lockwood_Karen“Everybody has the power for greatness, because greatness is determined by service.” –MLK

Leading NITA these past three and a half years, is a privilege of a lifetime. Why?

Why leave a fine-tuned 30-year career for parts unknown? Why leave a rich professional and personal life in DC, friends, law partners, farm and urban condo, children; why? Every friend asked that, back then. My pithy answer: “I love NITA.”

This morning, I deviated from my ritual skimming of the day’s Washington Post feeds, snared by news of Jimmy Page’s testimony: “Stairway to Heaven” was not, it turns out, composed at Bron-Yr-Aur. (Good story.) I could not resist clicking on the story’s concert videos of “Stairway.” (Wow; still wow, after all these years.)

It is that deviation that launched this reflection on service, greatness, and NITA. You see, after “Stairway,” the video that automatically loaded showed me Michelle Obama and Oprah Winfrey on stage. Their wide-ranging conversation drew me in. Three days ago, at the United State of Women conference, before an audience of 5000 women and men, they paused to discuss service, fame and greatness.

Now I admonish you: Resist the urge to save time by reading news summaries. Instead, watch the whole video. That conversation is not about sound bites on “men” (swagilicious though they may be), or “women” (wise though they can be). That fabric of their conversation gives everyone reasons to reflect.

Bringing me to my theme today: I left behind a “life well-planned” to take on NITA’s top position for the reasons that Martin Luther King taught, and “Mrs. O” and “Ms. O” reflected upon: “Everybody has the power for greatness, because anybody can serve.” It is not about fame. Simply put, I at NITA want to make you Great.

NITA is about service. Using Dr. King’s syllogism, NITA is this:

  • Through inconvenience we learn commitment.
  • Through commitment we perfect our service.
  • Through service we become great.
  • Through greatness we improve justice.

To you who do not yet know NITA well, you need to. Lawyers who passionately believe in how our courts and hearing rooms achieve justice through due process must . . .must . . . join up with NITA. We are a force.

To you who teach NITA every year, you know why your commitment means so much to you personally. You are great, every one of you. The lawyers in your programs see you work magic, bringing your witness and argument skills to them, and teaching them that they too can learn to do that. The drugs of gratitude and on-the-spot change, which NITA teachers enjoy in every program, feed our teaching service. Teaching for NITA builds our individual sense of greatness, and secures our understanding of NITA’s fame.

Please call me — NITA’s doors are wide open to new faculty who are great trial lawyers. Mid-career, aspiring, or already famous, if you have teaching talent it belongs with us.

“Greatness is determined by service.” I am here to serve our mission. Our faculty passionately teaches for the same reason. Your soul to will sing at the difference you can make for justice as a member of our NITA network.

Karen_ShortSig

 
 
 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

NITA Movie Review: Give ‘Em the Old Razzle Dazzle

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Written by guest blogger Judge McGahey

chicagoSince the Tonys were just recently awarded, I decided that this month I would review an Oscar-winning musical comedy about the law and lawyers, based on a not-very-well-received Broadway musical. Chicago won the Oscar for Best Picture in 2002 and on screen it’s a singing and dancing extravaganza. But because of its phenomenally cynical view of the law and lawyers, I find it more than a little depressing, too.

The film centers on three characters: Roxie Hart (Renée Zellweger), Velma Kelly (Catherine Zeta Jones) and their flamboyant lawyer, Billy Flynn (Richard Gere.) Roxie and Velma are aspiring entertainers, both are accused of murder, both are facing the death penalty – and both are guilty. It’s Flynn’s job to make sure that neither woman is convicted and he how does it makes up the core of the movie. Flynn uses flagrant pre-trial publicity, bombast, show biz tactics, sex, manufactured evidence and outright perjury dazzle.” All of this is done in a highly colorful, visually striking and richly entertaining way.

In addition to the three principal actors, the movie features a stellar supporting cast including Queen Latifah, John C. Reilly and Christine Baranski. Rob Marshall directed and the screenplay was by Bill Condon. Chicago’s direct ancestor was that Broadway play of the same name, but it also includes in its family tree two earlier Hollywood movies, Chicago (1927) and Roxie Hart (1942), which starred Ginger Rogers (but wasn’t a musical.) That 1927 film was based on a story by a Chicago crime reporter about two real murders that she’d covered.

Chicago was well-received by both audiences and critics. As noted, it won Best Picture in 2002. Zeta-Jones won the Oscar for Best Supporting Actress, and there were also Oscars awarded for Best Art Direction, Costume Design, Film Editing and Sound Mixing. On top of that, Zellweger was nominated for Best Actress, Queen Latifah was nominated for Best Supporting Actress, Reilly was nominated for Best Supporting Actor, Marshall was nominated for Best Director, and there were additional nominations for Best Adapted Screenplay, Best Original Song, Best Cinematography and Best Art Direction. The movie made a pot-load of money worldwide for Miramax.

But for all the enjoyment I get watching Chicago, I still can’t help but feel uncomfortable about its take on the law and lawyers. Chicago plays to the worst aspects of the public’s distrust of lawyers and the legal system. There is no doubt that both Roxie and Velma are guilty and there is also no doubt that Flynn knows it. He will stoop to anything to win and it’s clear that winning is all that matters to him. A courtroom victory depends only on the entertainment value the lawyer and client can provide to the jury, portrayed as a bunch of idiots interested only in looking at Roxie’s legs.

At the start of her trial, Flynn explains all this to Roxie in the song that gave this review its title:

Give ’em the old Razzle Dazzle
Razzle dazzle ’em
Give ’em a show that’s so splendiferous
Row after row will grow vociferous
Give ’em the old flim flam flummox
Fool and fracture ’em
How can they hear the truth above the roar?

Make sure to watch Chicago. I’m sure you’ll love it like I do. But as we laugh and sing along with Chicago, we need to remember that our goal as trial lawyers must always be to make sure everyone hears the truth above the roar.

NITA’s Public Service Training at Southern University Law Center

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Written by guest blogger and NITA SULC Public Service Program Director Jude D. Bourque

The recipes for all great gumbos have a few common steps. Gather the right variety of ingredients, pick your preference of proteins-seafood, sausage, chicken, prep the cooking, throw in your favorite spices, take time to let the gumbo simmer, gather fun people to enjoy the feast, serve it with a smile, and enjoy.

In May, Southern University Law Center in Baton Rouge hosted a NITA Public Service Trial Skills Program for Legal Service attorneys in Louisiana. The new SULC Chancellor John Pierre working with NITA secured a program that taught 32 public service attorney and 16 SULC law students a dynamic trial skills program.

The NITA faculty included the Masters of NITA teaching: the legendary Peter Hoffman, the award winning Elizabeth “Beth” Sher, the dynamic Professor Stephanie Ledesma and Professor Jayme Cassidy, and the inspirational Debra Seaton-Chinaka. For the Professionalism/Ethics session, Judith Roberts inspired the group in an interview session about her journey to Hope Manor. The SULC Trial Advocacy professors and local attorneys including Greg Landry, Patricia Jones, and Karl Bernard, assisted in the teaching. The program emphasized the “learning by doing” philosophy by scheduling multiple sessions for each trial skill. NITA’s library of online lectures supplemented the creative and dynamic live instructions and demonstrations from the NITA faculty. The participants were performing almost the entire time to maximize their learning.

The best gumbos stick to the tried and true basics. Access to Justice. Promise fulfilled. Learning by doing. Award winning team assembled. Masters of NITA teachers. Cutting edge videos. Energy, skills, talent. A few side trips for seafood gumbo, grilled oysters, fried catfish, crawfish etouffee, pralines, boudin balls, and grilled fresh fish. Feeding the souls of our legal community.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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