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Meet and Confer

For those who still think that litigation must always be conducted in an adversarial manner–that litigants must oppose anything suggested by the other side, and bring every dispute before the court for resolution–consider that the courts are telling you otherwise. It’s not just that the courts routinely encourage settlement, and discourage trials; it’s also that they have changed the rules to compel efforts at negotiating rather than seeking judicial resolution of problems that occur during the course of a lawsuit. It’s almost as though the courts don’t believe in the process they are designed for, because they are requiring you to engage in a different process first.

Meet and confer requirements have been around for a long time with respect to discovery disputes. Litigators understand that judges don’t want to be bothered with the laborious and nit-picky task of deciding whether parties have given adequate responses to interrogatories and document requests. They don’t want to referee attorneys’ conduct during depositions. They don’t want to order people to turn over information that they should have turned over voluntarily. Lawyers see the sense of requiring efforts to resolve those problems without the court’s assistance before filing a motion to compel or for a protective order.

But many lawyers trained with an adversarial mindset treat the meet and confer requirement as just another opportunity to engage in combat rather than give-and-take. Many “meet and confer” sessions are initiated by letters that take the form of an ultimatum rather than an invitation to negotiate. Many lawyers think they can satisfy the meet and confer requirement by sending such letters without even having a telephone meeting with their adversary, and without making any effort to explore consensual resolutions. That type of conduct, because it is not a good faith effort at an informal resolution of the dispute, has been held to violate the rule. Obregon v. Superior Court, 67 Cal.App.4th 424 (2d Dist. 1998). Nevertheless, adversarial habits are hard to break, and many lawyers continue to treat the meet and confer requirement as merely a hurdle on the way to an inevitable motion to compel, a motion that can only be avoided by the other side’s capitulation to the aggrieved party’s demands.

The obligation to meet and confer, which applies to nearly every motion filed in federal court, has been extended this year in the California state system to apply to demurrers as well as discovery motions. C.C.P. Section 430.41. Like discovery motions, demurrers are another form of motion disliked by many judges. Demurrers rarely do much to move the case along, usually resulting only in an amended complaint, but do give the parties an opportunity to spar over the adequacy of their compliance with arcane pleading requirements. I’m not saying that pleading sufficiency is never important, but I am saying that most of the time, the parties should be able to work out these pleading issues without the assistance of a judge. That is what the courts are now telling parties they must do. If we heed the spirit as well as the letter of these rules, then lawyers and litigants should be attempting to resolve all aspects of their disputes in a constructive, problem-solving manner.

Four Clients

The wise client approaches the initial consultation with a lawyer with some ideas of what the client is trying to accomplish and with some perspective on his or her own situation. For such clients, the lawyer should be prepared to explain carefully how the process is likely to unfold, and help the client better understand their options. A lawyer can be confident that a wise client will listen carefully and trust the lawyer’s advice. But not all clients are wise.

The simple client, for example, will come in for an initial consultation feeling aggrieved and agitated but uncertain what they are trying to accomplish or how to go about it. For example, an individual might believe they have been fired from their job unfairly, but have no idea what remedies might be available or whether they are worth pursuing. These clients tend to spew out a long, convoluted story that recounts in great detail all of the circumstances giving rise to their injury. For such clients, the lawyer must try to listen patiently, but their legal training teaches them to sift through the story trying to find elements of potential legal claims in it, while ignoring other parts that do not support a cognizable claim. Lawyers often try to educate this kind of client on those elements, in an effort to get them to focus on facts that are necessary to proving available legal claims. The lawyer might point out, for example, that unfair business decisions are not necessarily actionable, unless they were made for an improper purpose, such as discrimination based on age or sex or ethnicity. That prompts the client to see the story in a somewhat different way. In the process, a lot of what the client initially thought was important gets left on the cutting room floor, and the resultant story, while legally coherent and based on facts that that lawyer and client think they can prove, may not end up satisfying all of the client’s concerns.

Lawyers might be better advised to figure out an appropriate way to present the client’s actual grievances to the other side, rather than compressing them into a narrative judged only by whether it states a provable legal cause of action. Because, after all, most of the time the merits of the legal claims are never going to be finally adjudicated anyway, since the vast majority of cases end up getting resolved by negotiated agreement. And to reach that negotiated agreement we often have to bring back into the picture some of the client’s concerns that got left out of the initial framing of a legal complaint. Those concerns might even prove more compelling to the other side than the story the law encourages parties to contrive.

Then there is the wicked client, who comes to a lawyer having already framed their problem into the shape of a legal dispute. What they want to know is how their claim is going to be decided. Are they right or wrong in thinking that the court is going to favor their obviously justified actions, and punish the dastardly conduct of the other side? Or less often, they might express worries that the court will find them liable for their actions. For these clients, the lawyer’s training teaches them to advise the client on the merits of their legal claims and defenses, and the factors that might affect their adjudication. Even though lawyers hedge their bets with many caveats and uncertainties, they also need to show the client that they are capable of acting as a strong advocate for their cause. They must show sympathy for the client’s view, and they must try to make the strongest case they can, even while pointing out potential obstacles along the way. What the client hears from this discussion usually tends to vindicate their initial point of view. They now feel armed with even more legal arguments that they can use to vanquish their adversary. They tend to discount the facts and arguments that might favor the other side.

What lawyers should more often be emphasizing to this latter group of clients, however, is that in the vast majority of cases, it is unlikely that any court or tribunal is ever going to determine the merits of their dispute. Because, as stated above, cases tend to get resolved by negotiated agreement. So the wicked client’s belief that they are going to win the case may not be as important as they think. Instead of pounding the other side with the righteousness of their cause, they should be thinking of what tools they can use to help bring the case to a favorable resolution. The wicked client needs a better understanding of how the other side views the dispute, and how to satisfy the other side’s needs and interests to bring the case to resolution.

Finally there is the client who does not know how to ask. This client may be shell-shocked: injured in an accident, facing separation from a spouse, feeling deceived in a business transaction. The lawyer needs to answer questions for this client that the client does not even know how to formulate. At the same time, the lawyer should try to help this client articulate their own needs, otherwise the lawyer is in danger of presuming knowledge of what the client wants, and substituting his own ideas of what the client’s goals should be for the client’s actual goals.

Even though there are four (at least) kinds of clients, just like there are four kinds of children addressed at the seder table–and most clients, like most children, combine aspects of all four types–they are all really asking the same question, which is what does this all mean and what is my part in it. And we should be trying to give them all the same answer, which is that to resolve a conflict, the client needs to help figure out what interests and needs are most important to them, develop some perspective about the situation, and help guide the dispute to resolution.

Spotlight

The new movie Spotlight might be about the most exciting drama that could be made about filing a motion to unseal court records. (Some viewers might say that the movie is also about how a team of investigative journalists uncovered widespread pedophilia in the Catholic Church in Boston, but the legal fight to obtain access to sealed documents was of course the part of the story I focused on.)

Confidentiality agreements often serve the short-term interests of the parties to a particular dispute: An enterprise accused of wrongdoing has a strong interest in keeping its alleged wrongful actions secret, both to protect its reputation and to dissuade others from suing. At the same time, individuals bringing such accusations have an incentive to agree to requests for secrecy, which are often demanded in exchange for settlement payments. In this film, such confidentiality agreements are portrayed as a shameful practice that allowed the Church to cover up crimes for decades and keep predators at large. The legal system’s complicity in the sort of confidentiality that allows evidence to be suppressed, criminals to be spirited away, and victims to remain in the shadows, is portrayed as an obstacle that must be overcome in order to allow justice and healing for abuse victims.

We should, however, distinguish the kinds of protective orders and confidentiality agreements that had to be defeated in the Church abuse cases, from the need to conduct settlement negotiations in private, without fear that admissions or offers might be used against parties in that particular case.

I have been involved in efforts to protect the confidentiality of settlement negotiations–mediation confidentiality in particular. Confidentiality is essential to the practice of mediation and to settlement negotiations in general, as the evidentiary bar against the admissibility of settlement negotiations encourages parties to speak candidly without fear that their offers and admissions may be used against them in later court proceedings. Without the shield of confidentiality, parties might be reluctant to engage in spirited settlement negotiations, and cases might be less likely to resolve in a consensual manner. Without the protection of confidentiality, parties are more likely to be forced into adversarial confrontation, and less likely to find a cooperative means of obtaining resolution. Without an evidentiary rule against the admissibility of settlement negotiations, parties are more likely to move back toward needlessly destructive litigation.

While the confidentiality of settlement negotiations generally deserves strong protection in individual cases for the benefit of those parties, courts must still be mindful of the over-use of protective orders and other efforts to hide wrongdoing in individual cases from public view. This is where the courts have to balance the interests of the public, including the interests of other potential victims of wrongdoing, against the desires of the parties in a particular case to keep the terms of their settlements confidential. Parties and their attorneys should also be mindful of the potential over-use of protective orders and settlement confidentiality provisions, which can create traps even for the parties in a particular case, and which may also harm the public interest.

As shown by my last few posts, Spotlight is only the most recent in a spate of movies this year featuring powerful legal themes. We are fortunate to have such a feast of thoughtful legal dramas.

stanley-tucci-spotlight-movie

Trumbo

After the title character is seen getting fired and blacklisted in the new movie Trumbo, I’m thinking, as most lawyers would, that he should sue! Dalton Trumbo was a highly paid screenwriter under contract to MGM at the time, and would seem to have a clear case of breach of contract. So why doesn’t he go to court to seek the damages that are presumably due him?

The answer comes later in the movie, after the legal strategy that the so-called “Hollywood 10” were pursuing in response to being cited for contempt of Congress, goes awry. That strategy, which relied on eventual reversal of the contempt finding by the Supreme Court, fell apart after Justice Rutledge, one of the Court’s liberals who the Hollywood 10 were counting on for reversal, passed away.

 

While fighting that legal battle, Bryan Cranston’s Trumbo is confronted by a composite character called Arlen Hird, played by Louis C.K., who stands in the movie for the more militant members of the group. Hird still thinks they should sue the studios who are enforcing the blacklist. At that point, Trumbo argues forcefully that filing suit would only lead to defeat. He recognizes that no matter how strong the legal arguments, the courts would undoubtedly find some way of denying their claim. He decides that it’s better not to fight that particular battle, than to fight and lose.

 

So what is the appropriate legal strategy for a character victimized by unjust and illegal actions, but unable to find recourse in the courts or the court of public opinion? The answer turns out to be laying low, biding his time, and resorting to subterfuge to survive. And eventually finding vindication.

Bridge of Spies

The beleaguered legal profession should be gratified by the new Cold War thriller Bridge of Spies, based on the true story of the prisoner exchange for U2 pilot Gary Powers. Unlike most movie portrayals of attorneys, this one casts its lawyer-hero, James Donovan (played by Tom Hanks) in a highly favorable light. Though we first see someone who appears to be a typical insurance company lawyer making clever legal arguments about whether an accident involving five motorcyclists should be considered a single “incident,” even when he does that, Donovan is able to impress by tying those arguments to a higher purpose.

When Donovan is asked to defend an accused Russian spy, he takes his ethical responsibilities, and his devotion to the Constitution and to his client’s interests, as seriously as any lawyer would wish to perform them, and performs to the highest professional standards. Compare James Donovan to the fictional Atticus Finch, an idealistic role model who has served as an inspiration to many lawyers. Both took on hopeless cases, and both strove to uphold the rights of a reviled defendant. But it must be said that although Finch performed nobly by exposing the community’s racism, his shaming of the jury may not have served his client all that well in the end. We should probably admire the real-life hero Donovan even more, because he comes up with the winning argument that saves the life of a client who was probably not so innocent.

At the same time, like Atticus Finch, he reminds the community of the ideals they are supposed to stand for. At home, Donovan has to endure the disapproval of his neighbors for taking on the defense of a hated spy. But all it takes is a tour of postwar Berlin with our hero to appreciate his viewpoint that upholding the rule of law is the only thing protecting us from descending into the fear, crime and oppression prevalent on the other side of the Iron Curtain.

Not only does DoHanksnovan turn out to be a highly skilled trial lawyer, he also shows himself as an effective negotiator. He does that by understanding well both the limits and the extent of leverage he had over his adversaries. Donovan also knew his client well enough to understand his value to the Russians, and had built up the kind of trust with his client that enabled him to achieve even greater success in the end.

All in all, a perfect combination of street smarts and idealism. And a perfect combination of knowing what it takes to win, and what it takes to negotiate a mutually beneficial result with one’s adversary. Truly an inspiring story.