Is Law An Effective Way To Analyze And Solve Problems?

II. Fact Finding In The Adversarial Process

In trial courts, juries and sometimes judges resolve disputed facts.

Idealized View: The idealized view of the adversarial legal system taught in law school ethics classes depends on parties having roughly equal access to the underlying information. It depends on both sides having similar resources – time and money – to hire attorneys of similar skill and experience. In litigation, there often are differences in the information and resources available to each side. Many aspects of this adversarial system result in it not being the most logical, accurate, or efficient system for determining disputed facts.

Information Gaps: One party typically has better access to facts than other party by virtue of their relationship to the situation that caused the dispute. For example, in a products liability case, the manufacturer will likely know more than the plaintiff about the design or production processes that may have caused defects. The plaintiff will likely know more about the circumstances that gave rise to the injury. Criminal defendants will usually know more about their crimes than victims or police.

Discovery and the Games Attorneys Play:

The litigation system allows each side to learn relevant information from the opposing side through the discovery process, where a lawyer can force the opposing side to produce relevant documents and allow witnesses to be interviewed. To be successful in discovery, an attorney often must know what exact questions to ask.

Each party has goal of using any legal means to prevent other party from finding damaging information. Normally this means an attorney will find out what he can about a case from his own clients and friendly witnesses, then use this information to outmaneuver the other side through numerous tactical decisions. The attorney does not have to reveal this information to the opposing side due to attorney-client and work product privilege. Therefore, the side with more information, by sharing it with his attorney, gets to make full use of it for tactical purposes; yet the opposing side does not get this same benefit. The opposing side can only gain some of that information through the cumbersome discovery process.

The discovery process is very document intensive.

One way to outmaneuver the opposition is to “prepare” clients and friendly witnesses prior to being interviewed by the other side during discovery. Prior to these interviews, a client's attorney can explain to him what the legal issues are, and what facts the other side will try to find to prove their case. The client or friendly witness can then answer the other side's questions in ways that are technically correct, but volunteer as little information as possible. Only if that other side can figure out what specific questions to ask will they uncover the necessary information. If they don't know in advance what to ask, they may not be able to uncover all relevant information.

Attorneys craft discovery requests as broadly as possible, in part to force opposing counsel to spend more time producing all documents. Meanwhile, in responding to requests to produce documents, counsel will commonly bury harmful documents among numerous files of less significant documents. Each side will generally produce documents at the latest possible time allowed by the court in order to minimize the opportunity for opposing counsel to examine the documents. Thus when there is an information gap between what each side knows, attorneys can turn the discovery process into a prolonged shell game. Where the information gap is small, such as when the same facts are available to both parties, the value of attorney-client and work product privilege are reduced. There is less room for strategic maneuvers, and the case is more likely to settle or be decided on legal questions.

Access to Counsel Versus Restrictions From Conflicts:

Ideally, many lawyers see themselves as problem solvers. Their ability to solve problems will usually be enhanced if they have experience solving similar types of problems in past work. They may have a better sense on how strong their client's legal position is. They will have a better idea of what types of solutions will best accommodate the goals of both their client and opposing parties. That will allow disputes to be resolved with less expense and disruption to all parties involved. These advantages will be most significant where the underlying subject matter is complicated, and where few attorneys are likely to possess relevant experience.

Yet these area situations where rules on conflicts of interest or confidentiality may prevent the attorney from taking the case in the first place. During the representation, a client has a legitimate interest in knowing the attorney will make the best case on his or her behalf. Yet when applied to former clients or cases where clients are not directly adverse, these rules may need to be limited to accommodate the goal of allowing clients access to their counsel of choice. For example, counsel with the relevant degrees and experience with technical subject matter, such as in a patent or products liability case, are most likely to have worked for other parties whose technologies are similar and possibly even compete in some way.

Land use attorneys can face similar constraints from conflicts of interest. There are likely to be a limited number of pieces of land being developed at a particular time. They are likely to share the same road capacity, the same school capacity, and may compete in the marketplace. Yet there are also likely to be a limited number of land use attorneys who are familiar with the intricate details of a city or county's land use code, and who understand the nuances of what motivates planners and elected official to approve novel projects. In order to limit the danger that a conflict will arise, attorneys willing to invest the time to become proficient in this area are likely to limit their business only to larger customers who have repeat business. These factors may limit the availability of experienced attorneys to new or small-scale clients who don't have repeat business to offer.

Neighborhood and environmental groups can face an even tougher time finding local attorneys who specialize in land use or environmental law. Few groups in most places can promise a steady stream of business, and often work for such a group will conflict in some way with a paying development client elsewhere. For example, an interpretation of a local zoning rule may help one neighborhood group, yet hurt a developer whose project across town lies in that same zoning designation.

Conflicts can also pose severe limits in small communities. There are likely to be a very limited number of attorneys who are familiar with the social or cultural attitudes of a place, are familiar with the local judges, and have the substantive legal knowledge to efficiently handle a particular type of claim. In small communities, seemingly unrelated matters could pose conflicts. For example, an attorney incorporating a business may be disqualified from representing a business partner's wife in a subsequent divorce because the attorney had access to that partner's financial records. The party that must either use out-of-town counsel unfamiliar with the local judiciary or must hire counsel without experience in the relevant type of matter may be at a serious disadvantage.

Policy Solution To Conflicts Problems: One solution is to narrow the definition of what is considered a conflict of interest for former clients and what constitutes confidential information for former clients. Most states prohibit representation in the “same or similar matter”, language that is vague and leaves some discretion to judges and bar officials. MRPC 1.9. Most states exempt information from confidentiality requirements for former clients once it is “generally known.” More recently, some judges have broadened the definition of “generally known” to include most things in public records or that a reasonable lawyer or subject matter expert could find out. These trends are positive developments if the legal system is to ensure that both sides can have access to specialized, experienced counsel of their choice.

Another possibility for certain business and technical situations would be to exempt “residual” information retained in the attorney's memory after some period of time elapses. This approach is already used for some business or technical workers. It would ensure a time limit on how long an attorney's human capital could be tied up by a matter for a former client.

Expert Witnesses

The witness stand in a trial courtroom.

Each party can consult an unlimited number of expert witnesses in order to find ones who will testify favorably. The number of experts consulted is limited only by the number of experts who are available and willing to consult, and the time and money the client can afford to spend on the case. A side with more resources generally has an advantage since it can interview more experts, and thus is more likely to find one who will testify favorably. Attorneys usually have to disclose an expert to the other side and make that expert available for questioning only if the expert will be called to testify.

Meanwhile ethics rules prevent other experts who were consulted but will not used at trial from now testifying for the other side. For this reason, some experts will refuse to even consult with an attorney, unless they believe that the attorney is in a position to provide future business. Where many cases are somewhat intertwined, experts will often pick only one side to do business with, such as the plaintiff side or the defense side in products liability cases.

Thus as one side consults more experts in a specialized field, it may become more difficult for the other side to retain the most desirable experts: those in the needed technical specialty, are located nearby, and are familiar with the litigation process. This other side then must then expend more money to find less desirable experts: those outside the specialty, who are located inconveniently, or lack experience as an expert witness in the litigation system.

Final Thoughts On Fact Finding

Most of the litigation tactics above obscure the ability of the system to accurately resolve disputed facts. They give the greatest benefit to the side with the most to hide. In a civil suit, this side may be a plaintiff who wishes to hide his own conduct that led to an catastrophic event, or a defendant that wishes to hide his own negligence. The tactics allow a side with sufficient resources to delay or obstruct, thus raising the cost of litigation. These realities often force the other side to settle for something far less favorable to what the law may entitle them to. This system often does not seem like a logical, efficient, or accurate method of resolving factual disputes.

Some of these tactical games that drag out litigation could be reduced by scaling back the scope of privileges. With fewer evidentiary privileges, there would be less of an information gap between the opposing attorneys. Thus it would be less likely that an attorney could gain an informational advantage and then use it to outmaneuver the other side. Perhaps that would result in a faster, fairer, and more efficient litigation system.