Second Chances

Good lawyers turn down good cases every day.

When a lawyer decides not to take a case, it doesn’t mean that the case doesn’t have merit.  When a lawyer obtains a successful result on a case that another firm had declined, it doesn’t mean that the first firm was wrong.  The decision about whether or not to represent a client is highly personal for most contingent fee lawyers, just as many clients may prefer one lawyer over another based on a feeling of comfort or confidence that’s difficult to articulate.

It’s well known that if you ask several different people who all witnessed an event to describe what they saw, they’ll all remember the event slightly differently.  Some will remember details that others missed.  Others will have different reactions to certain conduct, often based on their own life experiences.  And, in essence, lawyers evaluating cases are like observers to an event.  They will give varying weight to different factors, and the end result may be that one lawyer is very excited about pursuing a case that another lawyer turned down.

When we look at a case, we look at basic legal and economic elements: Was someone negligent? Did negligence cause an injury? Is there a reasonable likelihood that the claim will be successful, and that the recovery will be sufficient to cover the cost of bringing the case?  As sympathetic as we may feel for a potential client’s situation, if we don’t feel we can achieve a significant benefit for the client, it doesn’t make sense to take the case.

But a firm’s experience with a particular type of case may allow it to understand potential areas of liability that may not be obvious to other firms.  Particularly in medical malpractice cases, important information may be found in sources that aren’t part of the paper medical records: radiology studies, pathology specimens, videotapes of procedures, and computer documentation.  Many lawyers are unaware that these sources of patient data exist, let alone how to go about finding and interpreting them.  And this lack of knowledge may cause the firm to decline a case that has substantial merit.

The same principles apply to many other types of personal injury cases, where such electronic evidence as security videos, cell phone records, and data recorders may make it possible to prove a case that seems impossible on its face.  And sometimes, it’s just a matter of visiting a scene to understand how an event happened, or talking to multiple witnesses in search of one who may have seen a crucial detail.  Some firms are less apt to take cases that require this type of intensive investigation.

We frequently take cases that other firms have turned down.  And I’m sure that other firms have taken cases we declined.  Getting a second legal opinion, like  second medical opinion, is often well worth the time and effort.

E-Discovery Coming to a Court Near You

Massachusetts state court practitioners will soon come face-to-face with the reality of new e-discovery rules.  Once the province of federal courts and complex business cases, e-discovery will become a reality for all due to amendments to the Massachusetts Rules of Civil Procedure slated to take effect on January 1, 2014.

The most significant provision of the new Rules, an amendment to M.R.C.P. Rule 26(f), permits any party to request a conference within 90 days after the filing of the first responsive pleading by a defendant.  The request must be in writing, and the conference (either telephonic or in person) must take place within 30 days of the request.

The key to this provision is the requesting party’s right to a conference, so long as the request is timely made.  If no request is made within 90 days, any party may request a conference at a later time, and may ask the court to conduct the conference if the opposing parties do not agree.  The ability to require the opposing party to participate in an early conference is a powerful tool that gives significant leverage to the party seeking the electronically stored information.  Rule 26(f)(2)(C) outlines the topics to be covered at the conference, covering such common issues as preservation, form of production, production of metadata,  privilege issue, and how the costs will be allocated.  The new Rule permits a party seeking information to identify and preserve electronic evidence at the outset of the litigation, and reduces the risk that the information will be destroyed in the ordinary course of business operations.

Rule 34(b)(C) governs the actual production of electronic data.  Essential for recipients of large amounts of data, the rule requires the producing party to organize the information in a sensible manner, and permits the requesting party to specify the form in which the data is to be produced.  Rule 45(f) creates similar rights and obligations for information being produced in response to a subpoena.

While the obvious targets of mandatory conferences will be business, hospitals and other organizations that maintain data in electronic form, the new Rule may be equally useful to parties seeking electronic information created or received by individuals.  Many parties are starting to attempt to obtain personal emails, Facebook and My Space postings, and other social media data.  The individuals from whom this data is sought are highly unlikely to have formal purging or retention policies, and thus this information is apt to change or disappear at any moment.

A pre-suit preservation letter may accomplish some of the same purposes as the new Rules amendments, particularly with respect to preventing the routine destruction of electronic information as a result of ordinary business practices.  However, the right to an early conference is, at least in theory, much more powerful, as it provides the requesting party with a quick and inexpensive method of identifying what electronic data exists, without the delays and obstruction common in response to blind discovery requests.

Read the text of the new Rule changes here.

Taking Aim at Discovery Abuse

A recent Superior Court opinion strikes a blow at the widespread tactic, especially among defendants, of submitting routine blanket objections to discovery requests.  Associate Justice Edward McDonough issued the ruling in O’Brien v. American Medical Response of Massachusetts, Inc., sharply criticizing the practice, and indicating his intent to impose monetary sanctions on the defendant.

The defendant in O’Brien had responded to requests for its driver’s personnel file and investigative reports with the vague statement that, “We are not authorized to provide any further documents in response to your letter.”  No privilege log was produced, nor were the withheld documents identified or itemized in any way.

The court found that the defendant’s attempt to withhold these documents was completely unjustified, noting that although some of the information might be inadmissible at trial as relating to subsequent remedial measures, the question of admissibility was not determinative of the existence of a privilege.  The court noted that the defendant could not “(a) withhold documents, (b) arrogate to itself the role of sole arbiter of the document’s admissibility, and (c) then use its own self-serving inadmissibility ruling as an excuse or pretext to continue to withhold the documents as irrelevant.”  Rather harsh language that sounds almost as if it was drawn form the plaintiff’s motion papers!

The judge was likewise critical of the defendant’s attempt to withhold the cellphone number of its ambulance driver—under the guise of protecting the driver’s “privacy”—observing that this information is obviously discoverable in a case involving a commercial driver.  The court noted that the defendant had refused to produce the telephone number until after the plaintiff had prepared and filed a motion to compel.

Judge McDonough’s language should be quoted early and often by plaintiffs facing discovery obstruction:  “Obviously, surrendering discoverable documents—or revealing their existence for the first time—only when confronted with a motion to compel—is hardly [the] proper way to conduct discovery.  Discovery is not a game of “hide the ball” until your opponent is forced to take you to task on inappropriate and baseless objections.”

More opinions like this would go a long way toward simplifying the discovery process and reducing wasted effort.  Most defendants have no incentive whatsoever to provide full responses to discovery requests; they often gain a tactical advantage by concealing information that would be harmful to the defense.  Even the process of motions to compel favors defense counsel, who derive a financial benefit from opposing such motions and providing further responses, all at their regular hourly rate.  Plaintiff’s counsel, on the other hand, who is generally working on a contingent fee basis, normally receives no compensation for the extra work required to obtain what should be provided automatically.  A few heavy sanctions imposed on recalcitrant defense counsel would remove the financial incentive and reduce the practice of routine obstruction.

Although not germane to the central issues of discovery obfuscation, the Court’s ruling also addresses the scope of discovery when an expert intends to rely on a computer simulation.  In response to the defendant’s refusal to produce the actual simulation, the Court noted that fair disclosure was required to enable the plaintiff to assess the validity of the simulation, and included the actual simulation itself, as well as the name of the program used to create it, and all documents which were used to supply input data, including otherwise privileged medical records.

Read Judge McDonough’s opinion in O’Brien v. American Medical Response here.