Wednesday, August 19, 2015

Reality intrudes -- a programming note

Two years ago, with the Cook County Democratic Party's slating meeting at the Hotel Allegro, steps from my office, and steps from the Daley Center, I was able to sit in and observe as much as of the judicial slating process as any outsider could. I had one matter to cover in the course of the two-day session, and I was able to run to court and run back without missing much of anything.

This year, however,the slating meeting, which began yesterday, is at the Erie Cafe, on the west end of the River North area. Neither my office nor the Daley Center has moved, and I have too much on my desk to permit me the luxury of attending.

It would be one thing if there were useful, productive legal work on my desk. After all, the practice of law is my day job -- this blogging enterprise may be fun for me and informative for my readers, but blogging won't pay my bills.

But the truth is, the red-hot, five-alarm emergencies on my desk are mostly discovery matters.

The discovery matters on my desk break down into two categories -- (1) needless and pointless form discovery and (2) discovery deployed as a "tactical game," notwithstanding the Supreme Court's admonition against that sort of thing in Williams v. A.E. Staley Mfg. Co., 83 Ill.2d 559, 416 N.E.2d 252, 256 (1981).

Of course, since 1981, the Supreme Court has gone into the business of prescribing form discovery....

There was one time, back in the early 1980s, when I personally saw something in discovery that dramatically impacted the outcome of a case: I was the junior associate in my firm, tasked with slogging through the medical records subpoenaed in a personal injury case, when I came across a nurse's note recounting how hospital security had to be dispatched to fetch back the supposedly-seriously-injured patient-now-plaintiff who'd slipped away from his bed... and into a nearby tavern.

I haven't seen anything half as good since. And I've seen far too many discovery requests and responses and piles and piles of subpoenaed records.

As a solo practitioner, I'm still looking. I have to: I have no junior associates or paralegals on whom to dump the thankless task of completing form discovery responses. So, while I'm very grateful for the uptick in paying legal work, my current caseload (in my experience, the mix changes over time) includes a lot of litigation matters, all in the discovery phase. Because I have to do the discovery myself I see first-hand the effect that "discovery" of things already known and/or really unimportant to the disposition of a case has on the cost of litigation. Discovery deployed as a tactical weapon is even more costly -- and injurious to our stated professional goals of civility and access to justice.

But these are issues to take up when the workload permits.

Meanwhile, I've had some rumors from inside the slating meeting about who will be on the list when the list is announced -- but no one, as yet, has volunteered to go 'on the record.'

When I have some results to report, I will do so.

But, for now, however, reality intrudes, and I have discovery issues to which I must attend.

No comments: