How To Not Make Judges Hate You


Rock, paper, scissors . . .
Pick one, unless you are Bart,
‘cuz nothing beats rock!

One of my all-time favorite eDiscovery cases (which isn’t actually about eDiscovery) came out a few years ago out of the somewhat-obscure Middle District of Florida. On June 6, 2006, in Avista Management, Inc., vs. Wausau Underwriters Insurance Co., Judge Gregory Presnell ordered two Tampa lawyers who had been unable to resolve their dispute over the location of an upcoming deposition to meet at the end of the month on the courthouse steps and “[A]t that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.” The winner of this engagement shall be entitled to select the location[.]”

One could presume that the order was motivated by Judge Parnell’s desire to provide the USARPS (motto: “America’s Official Rock, Paper, Scissors League”) with what is almost certainly its first – and last- opportunity to opine publicly about the dangers posed to our civil litigation system from the unregulated use of weapons of mass gaming: “I guarantee you right now,” Mr. Leshem [head of the US Rock, Paper, Scissors League] said, “that both lawyers will open with paper. Lawyers open with paper 67 percent of the time, because they deal with so much paper.”

Mr. Leshem offered to officiate the match. “What I don’t want,” he said, “is some rogue element of rock-paper-scissors coming down from the bench. When the law takes rock-paper-scissors into its own hands, mayhem can occur.”

Of course, arguing over the location of a deposition has nothing to do with eDiscovery . . . except that it does, really. The case illustrates the extent to which judges desperately despise dealing with discovery disputes (“Thank you, Alex, I’ll take Alliteration for $400”). The real message here, the one that is likely motivated by the hidden 90% of the case history iceberg, is to make it clear to all lawyers that if you are going to act like children, the courts will treat you like children.

Don’t just take my word for it; one Florida lawyer’s comment to The Wall Street Journal Law Blog’s coverage in 2006 said as much with just a few pithy words: “Many lawyers act like they are in kindergarten, and this order treats them appropriately.” Indeed, it was noted by other (somewhat) local lawyers that the two disputing lawyers had offices in the same building, just four floors apart. This is the level of petty squabbling that will lead a judge to call you out for creating (further quoting Judge Presnell’s order): “Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts.”

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eDiscovery provides far too many opportunities for exactly this type of petty squabbling—and the obvious bad consequences. Remember, when you are before a judge fighting over whether the ASCII delimiters in your production must follow Concordance or Ringtail defaults, you are dealing with a judge who almost certainly did not grow up with technology like this, had to learn it all late in life and probably is secretly scared of all this stuff. For too many judges, eDiscovery is not just a simple game of rock, paper, scissors, but rather something more like this:

Or, perhaps, it’s something even more, with aliens, nukes, and monkeys and about 27 or so other odd sorts of things added in for good measure.

There are, of course, a number of judges who do seem to enjoy presiding over eDiscovery disputes; you see them regularly show up at all of the conferences, write nuanced eDiscovery analyses, and issue key opinions. However, by “some” judges, I actually mean “about a dozen.” Run a Google search for “eDiscovery judge” and you will find the same names showing up over and over again. eDiscovery industry types have been saying, for years, that “judges are starting to get eDiscovery” but there are 677 federal district court judges and 571 full and part time federal magistrate judges (though according to the Federal Magistrate Judges Association, three of those have to also serve as clerk of court — judges you don’t want to annoy because they can deny your motion and then go “misplace” the file). Thus, there seem to be an awful lot of Federal Court Judges who are NOT speaking, NOT writing, and just NOT generally-caring-all-that-much about eDiscovery. None of this is even counting the state court judges . . . in part because I don’t think anyone has actually ever tried to count them all.

So, if acting like a petulant preschooler is bad, how can you avoid angering the judge so badly over manufactured eDiscovery disputes that you get cited in an order that exposes your childishness across the globe?

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Well, for starters, you can try to work out your dispute with the other side.

Yes, really.

I am not suggesting that you break out your acoustic guitar and invite your opponent over to a bonfire to sing the Sedona Cooperation Proclamation to the tune of “Kumbaya.” Lawyers are, in fact, paid to “zealously represent” our clients. On the other hand, “zealous” is not a synonym for “dumb.” Picking fights you cannot win and that will likely hurt your credibility with the judge is dumb. Besides, if you can’t work things out with opposing counsel, and even if you know that from that start, it’s incredibly important to show the judge that you tried—because you almost certainly will need to show that you tried. Otherwise, you’re more likely than not simply going to be sent back to Go (do not collect $200) and told by an irritated judge to go “meet and confer” with the other side before the court will even hear your motion.

If, after the meet and confer – even one that was doomed from the start – you still can’t work out the issues with the other side and have to go to the judge, don’t just whine that the other side is being unreasonable. Instead, present a plan that cuts the Gordian knot and moves things forward. Be affirmative. Be reasonable. And for maximum effect, be the first to bring a reasonable proposal to the table, because that lets you set the ground of discussion. Numerous psychological studies, along with several Malcom-Gladwell books posing as such, have shown that people tend to fixate on whatever facts are presented to them first, even if unconsciously so. In psychology, this is known as the Anchoring Effect, and it was first identified as a critical negotiating strategy back in 1974 by two famous psychologists, Amos Tversky and Daniel Kahneman. It’s not just a lawyer parlor trick; Kahneman won the Nobel Prize for his and Tversky’s research, and they don’t award that in Law.

If you can do all this—that is, act like a grown-up and minimize the time a judge needs to decide your dispute, you stand a good chance of not having being ordered to play kid’s games on the courthouse steps. Because, as with document review, it’s only just a matter of time before robots steal our jobs at rock, paper, scissors as well.

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