Monday, March 29, 2010

Alternatives to the adversary system?

Here is the link to an interesting comment suggesting the need to change our approach to discovery disputes.

The problem? Here is how the author describes it: "Lawyers continue to become enmeshed in lengthy, adversarial discovery actions, believing them to be advocacy for their clients -- a path that increasingly leads to standoffs that must be resolved by the court. As a result, plaintiffs frequently prevail in their efforts to portray recalcitrant defendants as guilty parties who attempt to hide misdeeds by refusing to provide relevant information, when in fact much of that information is innocuous and ultimately will be discovered. Unfortunately, this "trial by discovery" has been honed as a tactic to divert attention from the merits of a case and onto presumed discovery failings, and -- in extreme cases -- as leverage for settlements."

The solution? Rethinking traditional discovery strategies to something along the lines of the "Sedona Conference Cooperation Proclamation" which holds that "cooperation in discovery is consistent with zealous advocacy" and which calls for cooperative, collaborative, transparent discovery and a refocusing of litigation toward the substantive resolution of the dispute."

For more information on the Sedona Conference and links to its documents, go here.

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