1 This process yielded only 177 completed questionnaires because in three interview sessions two attorneys participated simultaneously.Google Scholar

2 The questionnaire that guided the interviews is reproduced in appendix A.Google Scholar

3 The first article was Wayne D. Brazil, Views from the Front Lines: Observations by Chicago Lawyers About the System of Civil Discovery, 1980 A.B.F. Res. J. 217.CrossRefGoogle Scholar

4 Appendix B describes in detail how the attorneys were selected.Google Scholar

5 According to several lawyers there also can be considerable differences within the state system in how discovery functions, e.g., between the courts in Cook County and those in the less densely populated part of the state, where trial dockets are substantially less crowded and pretrial procedures are less infected by delay.Google Scholar

6 The two differences between the Illinois and the federal systems of discovery that the interviewed attorneys mentioned most often were (1) the fact that in the law division of the state courts discovery disputes are resolved by specialist motion judges, whereas in the federal system one judge is responsible for all stages of each case and either that judge or a magistrate rules on the discovery controversies that arise in given litigation and (2) unlike the Federal Rules of Civil Procedure, the Illinois Supreme Court Rules distinguish “a discovery deposition” from “an evidence deposition,” the latter being usable for more purposes at trial than the former. See Ill. Sup. Ct. R. 202, 212.Google Scholar

7 See Brazil, , supra note 3.Google Scholar

8 Lawyers who expressed their general assessment of how well the discovery system is working in any of the following words or phrases qualified for the “clearly positive” category: “excellent,”“quite well,”“very good,”“very well,”“well,”“good,”“fine,”“very workable.” There were a few attorneys who did not use any of these words or phrases but who were placed in this first category because they clearly expressed a solidly positive attitude toward the current system of discovery (e.g., one respondent who was placed in this category said the system is “overall effective and efficient”).Google Scholar

9 Attorneys who articulated their evaluation of the system as a whole in any of the following words or phrases qualified for the “clearly negative” category: “bad” or “badly,”“terribly abused,”“awful,”“very badly,”“terrible,”“abused horrendously,”“abused more often than not,”“poorly,”“lousy,”“stinks,”“abused,”“not well,”“not very well,”“not terribly well,”“not as effective as it should be.” As in the “clearly positive” category, there were a few respondents who did not use any of these words or phrases but who were placed in this category because they expressed a clearly negative overall evaluation of the operation of the current system (e.g., one attorney qualified for this category by beginning his answer to the open-end questions about the system and its problems by declaring that discovery “costs a fortune, wastes time [and] doesn't work to the ends of justice”).Google Scholar

10 This middle category is the largest of the three and includes attorneys whose general attitudes toward discovery cover a relatively wide range of views. Respondents were placed in this category when they expressed mixed feelings about how well discovery is working or when they offered obviously qualified endorsements (e.g., by saying discovery works “fairly well” or “moderately well” or “as well as can be expected,” or by saying it works “pretty well” or “pretty good” while simultaneously pointing out substantial problems) or when they expressed only a passive or halting acceptance of the system (e.g., by characterizing it as “mediocre” or “o.k.” or “adequate” or as showing “room for improvement”).Google Scholar

11 This change in tone sometimes occurred while the attorneys were responding to the first general question about how discovery was working, before the interviewer asked if there were any problems with the current system. In other interviews the change did not occur until more specific questions encouraged the lawyers to focus on potentially troublesome aspects of the discovery process.Google Scholar

12 For example, one lawyer said, in the same sentence, that the system generally works “well, but can be horribly abusive.”Google Scholar

13 See section VII infra. Google Scholar

14 See section VIII infra and Brazil, supra note 3, at 245–51.Google Scholar

15 Of 175 attorneys, 170 said they were having difficulty discovering the information they needed in one or more of their active civil cases. See also pp. 832–46 infra. Google Scholar

16 The median percentage of time during the five years preceding the interviews committed to plaintiffs' matters by attorneys in the “positive” group was 50 percent; the figure for lawyers in the “negative” group was 36 percent.Google Scholar

17 The median year of first admission to a bar for attorneys in the positive group was 1961; that year for lawyers in the negative group was 1966.Google Scholar

18 The question that produced this data was phrased: “During the past five years, approximately what is the median or typical size (measured by amount of judgment or settlement or amount realistically in dispute) of the cases on which you have worked?”Google Scholar

For a variety of reasons many lawyers found this question very difficult to answer. The range of the value of the cases on which some attorneys worked was very large. In addition, some lawyers typically were responsible for modest sized cases but had committed a substantial percentage of their time to one very large lawsuit. Other attorneys said that a sizable portion of their time was consumed by actions in which relatively little money changed hands but whose economic impact was considerable, e.g., suits for injunctive relief or civil rights actions aimed primarily at establishing precedents rather than recovering damages.Google Scholar

Because of situational variables such as these, the figures which reflect median size cases are rough approximations, reliable only for broad comparisons based on large differences.Google Scholar

19 The question that produced this data was phrased: “During the past five years approximately what percentage of your time in civil litigation has been consumed by matters filed in federal court–-and what percentage has been consumed by matters filed in state court?” Few attorneys had difficulty answering this question.Google Scholar

20 To identify principal client types, the interviewers asked the attorneys: “Focusing on your work in civil litigation over the past two years, has any one type of client or institution been the source of more than ten percent of your litigation work during that period?” Attorneys who answered in the affirmative then were asked: “Would you please identify the client types?” and “What percentage of your work has each client type produced?”Google Scholar

For purposes of grouping attorneys by the kinds of clients they served, all of the following client types were treated as “large corporations”: larger manufacturing or retailing corporations (distinguished from smaller, privately owned businesses or corporations), transportation or utility corporations, banks, other commercial services corporations, and diversified or conglomerate corporations.Google Scholar

“Professionals (doctors, lawyers, architects, engineers, etc.)” are defined as a separate type of client and are not treated as “individuals” for purposes of grouping and comparing lawyers in the sample.Google Scholar

21 The data reported in figure 4 was produced by the following question: “In your practice in civil litigation during the past five years, what are the principal kinds of cases you have handled?” Most of the attorneys were not asked the follow-up question, which was designed to identify areas of specialization. The following kinds of responses were treated as “miscellaneous torts”: “torts” or “personal injury” matters (other than those arising out of automobile accidents–-for which a separate category was created), “slip and fall.”“premises,”“property damage,”“dram shop,” and “libel” or “slander.” The “antitrust” category also included “trade regulation” and “unfair commercial competition.” Lawyers were treated as doing “securities” work when they used that word or any of the following phrases in response to this question: “lob–5,”“stockholders' derivative actions,”“corporate opportunities,”“breach by corporate officers or directors of fiduciary obligations.” Appendix C, which describes the entire sample, lists each major “type” of case and the number of attorneys who said that type was among the principal kinds of matters on which they had worked during the preceding five years.Google Scholar

22 Appendix D describes the 17 subgroups.Google Scholar

23 Attorneys who committed 80 percent or more of their time to matters filed in state court were placed in the subgroup of “predominantly state court” respondents; similarly, lawyers who committed 80 percent or more of their time to matters filed in federal court were placed in the “predominantly federal court” subgroup.Google Scholar

24 A type of client that produced 50 percent or more of a lawyer's work was defined as “principal” or “dominant.”Google Scholar

25 Thirty-seven of the 47 predominantly plaintiffs' lawyers reported that individuals produced 50 percent or more of their work (the median of these percentages was 97 percent). Only 1 of these lawyers identified large corporations as a principal client type (and large corporations produced only 25 percent of that lawyer's work).Google Scholar

In sharp contrast, among the 62 predominantly defendants' attorneys only 3 said that individuals accounted for 25 percent or more of their work, whereas 20 reported receiving 23 percent or more of their work from large corporations and an additional 21 said that insurance companies generated 55 percent or more of their business.Google Scholar

26 The median size firm in which the attorneys in the predominantly plaintiffs' group practiced was 5 lawyers, whereas for the attorneys in the defendants' group it was 66.Google Scholar

27 See fig. 7 infra. Google Scholar

28 See the profiles of the subgroups in appendix D and note that higher percentages of defense lawyers (than plaintiffs' attorneys) identified antitrust, commercial contracts, and securities matters as among their principal types of cases.Google Scholar

29 For the attorneys in the plaintiffs' group the median percentage of time consumed by matters filed in federal court was only 10 percent, whereas that figure was 34 percent for the lawyers in the defendants' group.Google Scholar

30 As suggested in the introduction to this article, the median size of lawyers' cases appears to be the most reliable single predictor not only of degree of disaffection with the way the discovery system is working but also of the likelihood in any given case that various kinds of obstacles (including tactical maneuvering) will impede the information exchange process. The strong correlations between percentage of time consumed by federal court matters, on the one hand, and, on the other, general negative assessments of the discovery system and the likelihood of experiencing difficulties with discovery, seem to be primarily a function of the fact that in federal court the typical civil cases tend to be much larger and more complex than they are in state court.Google Scholar

31 The median percentage of time committed to matters filed in federal court was 42 percent for the attorneys in the more experienced group and 40 percent for the lawyers in the less experienced group.Google Scholar

32 See the profiles of subgroups in appendix D.Google Scholar

33 The median size case for the lawyers in the senior group was S250,000, while for the less experienced litigators it was $50,000. This difference between these two subgroups was substantially smaller than the difference in median size cases between subgroups in five of the other sets of subgroups. See fig. 7 supra. Google Scholar

34 See the profiles of subgroups in appendix D.Google Scholar

35 The median percentage of time committed to plaintiffs' matters was 40 percent for the more experienced litigators and 50 percent for the less experienced lawyers.Google Scholar

36 Comparing the profiles of the attorneys in the more experienced and the less experienced groups also reveals, however, some inconsistencies with the patterns established in the other sets of subgroups. On the basis of the patterns described above, differences in three situational variables would support a prediction that the more experienced group would be moderately more negative about the discovery system (instead of moderately more positive) than the less experienced group, Perhaps most significant, the median size case for the senior group was larger than it was for the less seasoned litigators. While relative to other sets of subgroups the degree of that difference was relatively small, in absolute terms it was not insignificant (the median size case for the senior group was $250,000, while for the less experienced lawyer it was $50,000). Litigators in the senior group also appeared to represent large corporations and defendants somewhat more often than did the less experienced attorneys, although the differences between groups with respect to these variables was not sizable. See the profiles of the subgroups in appendix D.Google Scholar

Because the recording and categorizing of the lawyers' general assessments was an imprecise process, and because the differences between these two subgroups in overall evaluations of discovery were so slight, it may well be that the inconsistencies described in the preceding paragraph are insignificant. If not, the following considerations may help account for them. Thirty-two percent of the lawyers in the subgroup of less experienced lawyers indicated that civil rights actions were among their principal types of cases–-a higher percentage than in any other subgroup. In sharp contrast, only 1 of the attorneys in the senior group (3 percent) indicated that civil rights litigation consumed a sizable percentage of his time. This difference between the two groups is significant because attorneys who did civil rights work were among the more critical of the overall effectiveness of the discovery system. General assessments of how well discovery is working were recorded for 26 of the 29 attorneys who identified civil rights actions as among their principal types of cases. While only 3 (12 percent) offered clearly positive evaluations, 11 (42 percent) expressed clearly negative views. The remaining 12 (46 percent) had mixed general impressions of the system.Google Scholar

One factor that may help account for the relatively negative assessments of the discovery system by attorneys who litigated civil rights matters may be that the defendants in such actions often are governmental entities. Thirty-five of 105 responding attorneys identified “governmental bodies” of various kinds as among the types of parties from whom discovery was noticeably more difficult than from others. Large corporations were the only other kinds of parties mentioned with anything like comparable frequency. Several attorneys also volunteered complaints about problems they had encountered trying to discover information from governmental opponents, blaming such factors as unresponsive bureaucratic attitudes and poor records management. In addition, some government lawyers reported having difficulty securing the full cooperation of the departments or agencies they had defended, citing, among other things, the departments' reluctance to be completely open with their own counsel and their resistance to producing all relevant documents.Google Scholar

Another hypothesis that might explain the more negative views of discovery expressed by the less experienced attorneys is that younger lawyers may have greater expectations of the discovery system (as well as of the larger process of dispute resolution) than have more seasoned litigators. The less experienced lawyers may have reached a less complete accommodation with the system as it in fact operates. If younger lawyers expect more of the system, their more negative assessments of it may be more a function of disappointment than of differences in experience. One senior litigator made a related observation that appears to support this hypothesis. He suggested that when asked for an overall impression of how well discovery is working, older lawyers are apt to compare the current system to its historical predecessor: a process that permitted very little discovery of any kind. Thus when asked how things are, an older and a younger lawyer may be likely to answer by comparing their perceptions of the current system to two quite different alternatives: the older lawyer using as a basis for comparison a discredited system with next to no discovery and the younger lawyer using the purer model he associates with a “perfect” system of justice.Google Scholar

37 Hickman v. Taylor, 329 U.S. 495, 507 (1947); for a description of similar views by other courts and by the drafters of the federal discovery rules, see Wayne D. Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 Vand. L. Rev. 1295, 1298–1303 (1978).Google Scholar

38 The 17 subgroups whose responses were compared are listed in appendix D.Google Scholar

39 This was the subgroup of predominantly plaintiffs' attorneys, i.e., those who committed 75 percent or more of their time to plaintiffs' matters. There were 47 such lawyers in the sample.Google Scholar

40 While the median of the percentages for the 164 respondents was 30 percent, the mean was 37 percent.Google Scholar

41 The median for this subgroup (39 of 42 responding) was 50 percent; the mean was 56 percent.Google Scholar

42 The median for this subgroup (37 of 39 responding) was 24 percent; the mean was 26 percent.Google Scholar

43 The data in fig. 10 and elsewhere in this article reflect the medians of the percentages provided by the respondents in each group. The means of the percentages are consistently higher for these responses as well as for a great many others reported in this article. Differences between means and medians are reported where they seem particularly noteworthy. The fact that so many of the means are higher than their corresponding medians suggest that some respondents experience some problems much more often than other respondents in the subgroups.Google Scholar

For the subgroup whose dominant client type was individuals the mean of these responses was considerably higher: 27 percent.Google Scholar

44 These percentages ranged from a low of 66 percent for the lawyers who committed 80 percent or more of their time to matters filed in federal court to a high of 85 percent, the median figure for two subgroups: attorneys in firms of 120 or more lawyers and litigators who represented defendants 75 percent or more of their time. The modest differences between subgroups formed no pattern; e.g., the subgroups associated with smaller cases did not consistently report smaller (or larger) percentages than the subgroups associated with larger cases.Google Scholar

45 Eight of the 29 lawyers in this group who answered this question said that opponents failed to discover arguably significant information in 85 percent or more of the cases they had tried in the five-year period.Google Scholar

46 This difference between the plaintiffs' group and the defense group may suggest that plaintiffs generally have more to discover than defendants.Google Scholar

47 One of this project's goals was to explore lawyers' attitudes toward the effectiveness of the discovery system. Answers to these questions help expose such attitudes. Since part of what these questions explore is the subjective state of mind in the responding attorney, the answers offered by some lawyers could be informed as much by their personality traits as by objective evidence. Answers so informed obviously cannot serve independently as reliable guides to reality. There are many circumstances, however, when a lawyer's feeling that evidence remains “out there” but undiscovered can be well grounded, e.g., when an opponent has successfully asserted a privilege or for some other reason refused to comply with a discovery request or when economic pressures compel a premature termination of discovery efforts.Google Scholar

48 Median of the percentages provided by the responding lawyers was 30 percent; the mean was 41 percent.Google Scholar

49 See fig. 11 supra. Google Scholar

50 This is another difference between the plaintiffs' group and the defense group that may suggest that plaintiffs generally have more to discover than defendants. See text at note 46 supra. Google Scholar

51 The groups (1) whose median size case was $1 million or more, (2) whose principal types of cases included securities matters, (3) whose dominant client type was large corporations, and (4) who practiced in firms of 120 or more lawyers.Google Scholar

52 As we discovered during some of the early interviews, the first of these two questions is not free from ambiguity: a few lawyers construed it to include information from their own clients by which they were surprised at trial as well as new evidence from opponents. While it is not clear how many attorneys so construed the question, the number probably is small, in part because the interviewers often orally clarified the focus of the inquiry and in part because the median percentages produced by the follow-up question were surprisingly low.Google Scholar

53 The median number of cases the lawyers in the less experienced group had tried was 15; that figure for the more experienced group was 151. The median number of trials for the other subgroups ranged between 18 (for lawyers whose median size case was $1 million or more) to 100 (for attorneys who committed 80 percent or more of their time to matters filed in state court).Google Scholar

54 As a few respondents pointed out, the first of these questions assumes that attorneys who perceive that opposing counsel failed to uncover something from their deponent can know what caused that failure. In many instances such an assumption would be unjustified. It often might be difficult to determine whether opposing counsel's failure to elicit certain testimony during a deposition was attributable to how the deponent was prepared, the shortcomings of the lawyer taking the deposition, economic constraints, or some combination of these factors. A few of the litigators in the sample attempted to isolate the instances in which they were relatively confident that it was their preparation of the witness that caused the nondisclosure. Because some respondents tried to limit their answers to such instances, the data as a whole understate how often deposing counsel fail to elicit significant testimony.Google Scholar

55 The median of the percentage responses was 50 percent; the mean was 47 percent.Google Scholar

56 The interviews included several similarly framed questions that asked for impressions about how often other attorneys were motivated by specified purposes (the responses to most of these questions are discussed in subsequent sections of this article). The interviewers prefaced these questions by explaining that they were designed only to ascertain opinions (a “pure opinion survey”) and not to establish the frequency in the “real world” of the phenomena under discussion.Google Scholar

The interviewers also prefaced these questions by saying: “In giving us your impressions about other attorneys please draw upon all of your sources of information about how other lawyers conduct civil litigation; do not confine your answers to observations you have made in the cases in which you have been directly involved.Google Scholar

57 This question was not well phrased. Its structure probably encouraged some attorneys to assume that the two identified factors were the only possible explanations and that they were mutually exclusive, i.e., that the sum of the two figures sought had to be 100 percent. Moreover, the wording of the question does not make clear whether the first of the two possible causes was intended to embrace only unintentionally inadequate discovery by opposing counsel or such failures plus discovery efforts that economic pressures forced opponents to leave incomplete. Given these ambiguities, the percentages the lawyers offered in response to this question are reliable only for the purpose of comparing the relative roles of privileges, on the one hand, and, on the other, unexplained limitations in opponents' discovery.Google Scholar

58 See pp. 840–43 infra. Google Scholar

59 Time constraints prevented the interviewers from asking the entire sample this question.Google Scholar

60 See pp. 840–43 infra. Google Scholar

61 One of our respondents reported a deposition practice that may help account for this kind of failure. In this lawyer's words, “the other side is afraid to ask questions they don't know the answer to.”Google Scholar

62 See Brazil, , supra note 3, at 245–51.Google Scholar

63 Interestingly, several lawyers praised (and none condemned) the performance of the judges in the state court's equity division, which appears to be less overburdened than the much criticized law division. The equity division also assigns one judge to each matter from initial filing through trial, unlike the law division, which sends all discovery disputes to motion judges.Google Scholar

64 See Brazil, , supra note 3, at 226–29.Google Scholar

65 The next section of this article includes data about the extent to which cost inhibits attorneys in conducting discovery.Google Scholar

66 There were notable exceptions to this generalization. One lawyer, for example, claimed that “Small inventors are harassed by large corporations with endless and costly discovery …. The system is its own worst enemy in terms of cost because you are allowed to discover everything.”Google Scholar

67 The interviewers asked 154 attorneys if their “prediction of the cost of discovery ever caused [them] to decide not to accept a civil case.” Sixty percent (93 lawyers) said yes. That percentage was substantially higher in the subgroups of attorneys whose cases tended to be smaller and less complicated, e.g., it was 79 percent for the subgroup of lawyers who handled tort actions arising out of auto accidents.Google Scholar

Time constraints permitted the interviewers to pose the follow-up question to only 69 of the 93 lawyers who said the cost of discovery had led them to turn away one or more cases. That question asked the lawyers to estimate the number of cases, during the preceding five years, they had “declined in large measure because of how expensive [they] predicted discovery would be.” Not surprisingly, the numbers consistently were much larger for the smaller case litigators than for lawyers whose typical cases were large. The median number for the subgroup who did auto personal injury work, e.g., was 50, while for the lawyers whose principal cases included antitrust matters the figure was only 5. Moreover, the mean figures for the smaller case subgroups were dramatically larger than the medians, reflecting the fact that among smaller case attorneys, some turned away many more cases than others because of the foreseeable cost of discovery. In the group who handled tort cases arising out of auto accidents, e.g., while the median number of cases declined on this ground was 50, the mean was 133.Google Scholar

68 See pp. 839–41 infra. Google Scholar

69 A few lawyers reported a closely related type of conduct that they probably would not classify or define as evasion. It consists of an attorney pressuring witnesses whose testimony will hurt his client to be unavailable for depositions.Google Scholar

70 See Brazil, , supra note 3, at 233.Google Scholar

71 For purposes of calculating the number of complaints about major problems, however, we treated overdiscovery as a distinct phenomenon. We added to the harassment column (in addition to the lawyers who explicitly used that word) the attorneys who complained about overproduction of documents in response to discovery requests or about opponents who used discovery to “spend [them] into submission” or otherwise intentionally to impose pressures on them.Google Scholar

72 See Brazil, , supra note 3, at 235–45.Google Scholar

73 There is a substantial body of material about civil discovery. The results of an early major effort to examine the operation of the discovery system are reported in William A. Claser, Pretrial Discovery and the Adversary System (New York: Russell Sage Foundation, 1968). More recently, the Federal Judicial Center has sponsored additional empirical studies of some aspects of discovery. See, e.g., Paul R. Connolly, Edith A. Holleman, & Michael J. Kuhlman, Judicial Controls and the Civil Litigative Process: Discovery (Washington. D.C.: Federal Judicial Center, 1978). The Federal Judicial Center also has published a useful survey of recent literature about discovery: Daniel Segal, Survey of the Literature on Discovery from 1970 to the Present: Expressed Dissatisfactions and Proposed Reforms (Washington, D.C.: Federal Judicial Center, 1978).Google Scholar

74 Fig. 17 reports the medians of the percentages for each group; the means frequently were higher.Google Scholar

75 The interviewers also asked the attorneys about an eighth potential obstacle: “Insufficient information or technical expertise to frame all the necessary questions or requests.” The responses indicated, however, that this kind of difficulty rarely was significant. Only 49 percent of the lawyers in the sample said this factor ever had impeded their discovery. And the litigators who composed that 49 percent reported that “insufficient information or technical expertise” had been a source of difficulty in only 10 percent (median) to 19 percent (mean) of their cases.Google Scholar

76 This difference between smaller and larger case litigation is consistent with and may be a function of the fact that tactical maneuvering reportedly plays a larger role in bigger lawsuits. See section VI infra. Google Scholar

77 See Brazil, , supra note 37, at 1311–31.Google Scholar

78 Speaking generally, one attorney admitted that “for tactical reasons you [sometimes] … hold something good or bad back till the last minute.”Google Scholar

79 Hickman v. Taylor, 329 U.S. 495, 507 (1947).Google Scholar

80 Some lawyers did complain about conduct they clearly would place on the “dishonesty” side of the line, e.g., coaching clients to say they “don't recall” damaging information that they do recall, concealing the whereabouts of witnesses, shredding or hiding documents, and manufacturing documents. One lawyer went so far as to assert that “manufacturing evidence for parties is so common it would shock the average person.”Google Scholar

81 The experience of at least one lawyer clearly belies this generalization. According to this respondent, whose work primarily involved antitrust and securities matters, there is a “direct linear relationship between the amount of money at stake and the difficulty of discovery. There is a dollar threshold above which many attorneys feel it is permissible to lie.”Google Scholar

82 Six of 159 responding lawyers reported that their opponents responded in “bad faith” in 80 percent or more of their cases.Google Scholar

83 See Brazil, , supra note 3, at 226–29.Google Scholar

84 See note 67 supra. Google Scholar

85 In virtually every case both the attorney-client privilege and the work-product doctrine “account for [an attorney] not discovering or not pursuing some information.” In almost every case clients discuss matters in confidence with their lawyers and lawyers prepare some documents that could qualify as work product. Opposing counsel probably would like to know what lawyer and client say to one another in confidence about the case and probably would like to have copies of whatever documents the lawyer drafts while preparing the case for possible trial. Neither these conversations nor these documents, however, are discoverable. And it is the attorney-client privilege and the work-product doctrine that account for this kind of information either not being discovered or not being pursued.Google Scholar

Comments provoked by the questions about privileges elucidate this fact of civil litigation life. Some attorneys pointed out that formal assertions of privilege rarely were necessary in their practice because the lawyers usually understood what kinds of communications or documents the privileges protected and, therefore, rarely asked for undiscoverable material. In a similar vein, other litigators indicated that they never tried to discover what was in a statement opposing counsel had secured from his client, even though they would have liked to have known the contents of such documents. Such observations show that the mere existence of the privileges blocked, tacitly and invisibly, the exchange of information between parties.Google Scholar

It follows that if all the attorneys in the sample had responded to the literal phraseology of the questions that asked them to estimate the percentage of their cases in which privilege had “accounted for [them] not discovering or pursuing some information,” all (or virtually all) of the answers would have been “100 percent.” A few lawyers may have taken the words of the questions literally. Ten of 113 responding attorneys reported that the attorney-client privilege impeded their discovery in 100 percent of their cases. Similarly, 8 of 158 respondents said some other doctrinal protection of information was an obstacle to discovery in 100 percent of their cases. The substantially smaller percentages offered by the vast majority of the litigators, however, indicate that they were not strict constructionists.Google Scholar

86 The fact that a few lawyers apparently responded to the literal phrasing of the question (and indicated that privileges accounted for the inaccessibility of information in 100 percent of their cases) skews (upward) the median and mean percentages. The number of lawyers who so construed these questions was small enough, however, not to invalidate the data, at least for the purpose of making comparisons between differently situated litigators.Google Scholar

87 The median percentages for the other “large case subgroups,” however, ranged between 20 and 40 percent, measurably lower than the 50 percent figure for the attorneys whose median size case was $1 million or more.Google Scholar

88 E.g., the median size case for the sample as a whole was $150,000, but that median was $501.000 for the 38 lawyers who reported that tactical considerations induced them not to pursue some information in 33 percent or more of their cases.Google Scholar

89 The modest differences between the percentage figures for the larger and the smaller case attorneys might well reflect little more than the fact that since larger cases involve more discovery they also necessitate more decisions that tactics could affect.Google Scholar

90 The means for some of the subgroups of attorneys who tended to have larger cases were: 39 percent for lawyers whose median sue case was $1 million or more; 34 percent for lawyers whose principal cases included antitrust matters; 35 percent for lawyers whose principal cases included securites actions; 27 percent for attorneys who devoted 80 percent or more of their time to matters filed in federal court; and 37 percent for attorneys who received 50 percent or more of their work from large corporate clients.Google Scholar

91 For the auto personal injury subgroup the median was 40 percent and the mean was 48 percent. For most of the other subgroups the medians ranged between 26 and 33 percent while the means fell between 39 and 45 percent.Google Scholar

92 See pp. 192–93, 797–99, 833–34 supra. Google Scholar

93 There may be inferential support for this possibility in a remarkable parallel between the responses (viewed in the aggregate) to this question and to the two questions that were intended to focus on the results of the information exchange process. The question that asked the attorneys to estimate the percentage of the cases they had settled during the preceding five years believing an opponent had not discovered arguably significant information from them produced, for the sample as a whole, a median of 30 percent and a mean of 37 percent. Similarly, the question that asked for estimates of the percentage of cases they had settled suspecting another party had relevant information they had not discovered produced a median of 30 percent and a mean of 41 percent. And the question that sought estimates of the percentage of the lawyers' active cases in which they had had difficulty discovering needed information produced a median of 30 percent and a mean of 41 percent. Of course, this dramatic convergence of estimates, made in response to questions separated in the interviews by many other inquiries, could be merely fortuitous. That possibility, however, does not reduce the temptation to infer that the virtually identical aggregate answers to these three questions reflect what is, in fact, the likelihood in any given case that the discovery system will distribute the significant information evenly among the parties. If these lawyers' estimates are to be believed, the system leaves at least one party at an informational disadvantage in about one case in every three. And in high stakes litigation that result is likely in every other case.Google Scholar

94 By casting a wide net, this definition prevented time-consuming semantic sparring and reduced the odds that differences of opinion about how to characterize various purposes would result in an understatement of the scope of the general phenomenon.Google Scholar

95 A few attorneys asked whether the desire to acquire information in a logical and efficient sequence qualified as a “tactical purpose” as that phrase was used in the question. The interviewers told these lawyers not to consider such an objective tactical.Google Scholar

96 In addition to jockeying for the most desirable position in a sequence of depositions of experts or clients (the usual objective being to depose an opponent's people before he deposes yours), our respondents offered some interesting examples of scheduling for tactical purposes. One attorney said that in more than one case he had intentionally postponed most of the important depositions, then “telescope” scheduled them (all in a very brief time span) right before the close of the discovery period in order to create an excuse to postpone a trial he did not want to proceed as originally set. Other lawyers admitted that on occasion they had intentionally noticed depositions at times they knew were extremely inconvenient for opposing counsel–-either to create leverage to bargain for some favor or in the hope that the firm representing the opposing party would have to send a lawyer to the deposition who was inexperienced and unfamiliar with the case and who, therefore, would be less capable of preventing the taking of inadmissible testimony in an “evidence” deposition (see note 6 supra). Google Scholar

97 See also the discussions of evasion and of deposition preparation at pp. 833–38, 850–58.Google Scholar

98 One lawyer whose practice primarily involved small cases but who occasionally litigated more substantial matters reported that he used discovery relatively little (and then only in a simple, straightforward manner) in his small cases, but that he was very conscious of tactics and aggressive with discovery in his larger cases. As an example of his style in the larger cases he said he tried to use “evidence depositions” to “sneak up” on his opponents–-by scheduling them at strange times and very early in the litigation, before his opponents understood the cases or took them seriously.Google Scholar

99 Lawyers provided the following examples, among others, of the ways they had used discovery tools for purposes of delay: (1) filing, or asserting in depositions, countless technical objections and refusing on grounds of vagueness to comply with discovery requests, (2) serving unnecessarily lengthy sets of interrogatories or document production demands that consumed opponents' time or provoked disputes, and (3) asking for documents or testimony that an opponent was known to be especially sensitive about and, therefore, likely to resist disclosing. One attorney described this last tactic simply when he said: “To slow things down you ask for things that will create arguments.”Google Scholar

100 The median of the responses was 25 percent; the mean was 34 percent.Google Scholar

Some of the attorneys in the sample pointed out that the backlog in the civil trial docket of the law division of the state courts in Chicago was so severe (about five years) that there was less temptation to use discovery to “slow things down” than there might be in a system in which trial dates were more pressing. This observation may help account for the fact that big case lawyers admitted using discovery for purposes of delay more often than their smaller case counterparts. Big case attorneys tended to spend a substantially higher percentage of their time (than small case attorneys did) on matters filed in federal court, where trial dates were available much earlier than in the state court system. See appendix D.Google Scholar

101 The consistently higher “means” reflect the fact that wide ranges of responses were reported within subgroups; the desire to slow things down affected discovery decisions for some attorneys in a much higher percentage of their cases than for others, even though the lawyers were by some measures similarly situated.Google Scholar

The big case lawyers, in the aggregate, also thought that “other lawyers” used discovery to “gain time” or to delay an action more often than the smaller case lawyers thought they did. For example, of the attorneys whose median size case was $25,000 or less, 29 percent thought that “other attorneys”“seldom” used discovery to slow things down; 34 percent of this group thought other lawyers used discovery for that purpose “moderately often,” and 37 percent thought that others were so motivated “quite frequently.” Among the attorneys whose median size case was $1,000,000 or more, the comparable estimates of how often other attorneys used discovery to delay an action were respectively, 10, 46, and 44 percent.Google Scholar

102 See table D1.Google Scholar

103 Id. Google Scholar

104 See Brazil, , supra note 3, at 228–29.Google Scholar

105 A few attorneys even admitted having chosen this course. One said, e.g., that he and a client simply decided not to acknowledge the existence of clearly discoverable information because to do so would have been disastrous for the client's case and might have exposed the client to criminal liability. The lawyer did not invoke his client's Fifth Amendment privilege against self-incrimination; it is not clear whether he even considered its applicability. Another attorney intimated that it was not beyond the pale “even [to] lie about temporarily losing a document.”Google Scholar

106 There is some support for this proposition in that when asked whether any tactical purposes “other than … gaining time or imposing work burdens on opponents” had affected how they had used discovery devices, 108 of the 112 responding attorneys (% percent) said yes.Google Scholar

107 One attorney asserted that clients “take a dim view of discovery and want their attorneys to spring something on opponents.”Google Scholar

108 Some of these successes apparently consisted of a client “educating” a lawyer who was unfamiliar with an industry so that he could perceive the proprietary value and trade secret status of certain information.Google Scholar

There is reason to suspect that the percentages reported in this paragraph understate how often clients persuade their lawyers to resist disclosure. Some attorneys intimated that admitting that their clients could pressure them into taking questionable positions would reflect badly on their professional ethics and on their capacity to control the professional dimensions of the attorney-client relationship.Google Scholar

109 See pp. 824–27 supra and Brazil, supra note 3, at 245–51.Google Scholar

110 As fig. 24 shows, there is one subgroup of predominantly smaller case attorneys to which this generalization does not apply. Seventy-one percent of the lawyers who received 50 percent or more of their work from individuals said they did not receive adequate help during discovery from the courts. It is not clear why the attorneys in this subgroup were more unhappy with the courts than were the attorneys in the other subgroups of predominantly smaller case lawyers. The known characteristics of the lawyers in this subgroup do not seem to differ substantially enough from the characteristics of the attorneys in the other three subgroups to account for this measurably higher level of disaffection.Google Scholar

111 If the lawyers appeared not to understand this question the interviewers offered an example of one of the forms such involvement might take: “a judicially conducted discovery conference early in the litigation.” The Supreme Court's recent amendments to the Federal Rules of Civil Procedure provide, in paragraph (f) of Rule 26, for a “discovery conference” for which parties may move “any time after commencement of an action.” The amendments that included this provision took effect on Aug. 1, 1980.Google Scholar

112 Thirty-six of 40 who responded favored more frequent use of sanctions.Google Scholar

113 Four lawyers refused to select one of the three options, instead offering observations that could not be categorized. These responses were excluded in calculating the percentages reported in the text.Google Scholar

114 Thirty-eight percent of the defendants' attorneys and 42 percent of the attorneys who primarily represented large corporations favored narrowing the scope of discovery, while among the plaintiffs' lawyers and the attorneys who primarily represented individuals the figures were 23 and 22 percent, respectively.Google Scholar

115 Responses were not recorded for five attorneys and another five could not make up their minds. These ten attorneys were excluded when the percentages cited in the text were calculated.Google Scholar

116 This belief has several bases. One is the fact that several interviewed attorneys expressed this view. Another is the reportedly modest role clients play in determining what happens during the discovery stage of litigation. It also seems significant that the rules of discovery that apply in Illinois courts and those that apply in the federal District Court for the Northern District of Illinois contain no differences that would make discovery more onerous or difficult in the federal system. Finally, we subjected some of the data to a modest cross–tabulation analysis that focused on the relative importance of two factors: (1) the size of cases (dollar value) and (2) the court system in which suits were litigated. While the analysis we conducted cannot “prove” which of these two factors plays the larger causal role, its results suggest that size of case is a more reliable predictor of problems with discovery. The cross–tabulations show, for example, that big case lawyers who worked primarily on federal court matters did not consistently report more difficulty with discovery or more tactical use of discovery tools than did big case lawyers whose practices involved substantial work in state courts.Google Scholar

117 See Brazil, , supra note 3, at 226–29.Google Scholar

118 Experiments with such “tracks” for smaller cases are being sponsored by the Colorado Supreme Court and by the American Bar Association's Action Commission to Reduce Court Costs and Delay.Google Scholar

119 Because this project was conceived as a “pilot.” its staff did not try to make the sample “representative” of the litigation bar in Chicago.Google Scholar

120 See, e.g., their two articles The Legal Profession: Client Interest, Professional Roles, and Social Hierarchies, 76 Mich. L. Rev. 1111 (1978), and The Organization of Lawyers' Work: Size, Intensity, and Co-Practice of the Fields of Law, 1979 A.B.F. Res. J. 217.Google Scholar