Extended Discovery Is a Key Feature of Legal Progress

Friday, March 9, 2012

Page 7

IN MY OPINION (Column)

Extended Discovery Is a Key Feature of Legal Progress

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

The last half of the last century has brought unbelievable changes to the law and thereby the practice of law. Changes have been so substantial that the 2012 admittees would hardly recognize what it was like to be a lawyer between 1950 and 1999.

Although we had discovery in the first half of the 20th century, none of the discovery statutes had expanded the right of one litigant to force other litigants to disclose what is in the bag.

The “gotcha” element which flourished on surprise is abolished. Trial by ambush is no longer the rule. To a large extent, the ebullient trial lawyer of the Spencer Tracy generation has been replaced by the diligent plugging lawyer who performs, edits and reads all discovery.

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What is discovery? It is the ascertainment not just of the truth, but of all the truth. One side can today discover everything which is not hammered to the wall. If it tends simply to lead to discoverable evidence, one can find out about it. The only immune facts are those which are by law privileged. Except for those, as Cole Porter would have said, “anything goes.”

There are, of course, by-products which are good and bad. Sanctions, even leading to contempt, have been and can be imposed. The system can and does lead to abuse. Valuable judicial time and effort can be consumed. This has led to the enactment of new rules limiting discovery rights according to dates and number of questions.

What has been the overall effect? Cases have settled which never before had been settleable. So much so that the acrimony between low threshold lawyers which had been engendered has to a large extent been reduced. Hence, while there has been a reduction of caseloads, there has also been the extinction of the classic trial lawyer so frequently depicted in the movies.

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The overall effect of discovery, consisting of depositions, interrogatories, requests for admissions (not strictly discovery) or inspection has been beneficial to the taxpayer, the community and the pursuit of justice.

Individual rights have substantially increased litigation which in prior years did not exist. So have defenses, i.e., privacy and constitutional rights. Were it not for the streamlining accomplished by discovery, there is no limit to the avalanche of litigation and ensuing costs of the operation of courts. Hence, extended discovery is essential—no longer a luxury.