Rules of Civil Procedure Aren't Necessarily Civil
| Publication year | 1991 |
| Pages | 1119 |
| Citation | Vol. 20 No. 6 Pg. 1119 |
1991, June, Pg. 1119. Rules of Civil Procedure Aren't Necessarily Civil
Most freshmen law students could tell you that the Rules of Civil Procedure are designed to govern the prosecution and discovery of claims, narrow those claims and present them for trial. What they cannot fully appreciate is that the rules are often used for collateral purposes---to obfuscate, delay and oppress. The direct result is the decline of professionalism in the learned art of trial advocacy, a malady earmarked by the abuse of the Rules of Civil Procedure and the discovery rules embodied therein.
A random review of the motions and cross-motions in typical Denver District Court files gives new life to Charles Dickens' description of trial practice.
On such an afternoon, the various solicitors in the cause, some two or three of whom have inherited it from their fathers, who made a fortune by it, ought to be---as are they not? --- ranged in a line, in a long matted well (but you might look in vain for Truth at the bottom of it) between the registrar's red table and the silk gowns, with bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters' reports, mountains of costly nonsense, piled before them.(fn1)
Heaping "mountains of costly nonsense" upon opposing litigants has become a tool which practitioners employ almost as a matter of course. The report of the CBA Task Force on Professionalism ("Task Force")(fn2) discloses that:
1) a significant number of Colorado lawyers use lengthy form interrogatories in circumstances in which shorter, specifically drafted questions would suffice;
2) resort automatically to formal discovery and subpoenas without first attempting to obtain materials informally;
3) routinely seek attorney's fees and other sanctions before facts are discovered which support such requests;
4) draft and serve discovery as a means to bury the opponent with paperwork and stultifying costs; and
Having prepared and served the "nonsense," we fortify it by refusing to stipulate to undisputed facts and otherwise engage in generally obdurate behavior.(fn3)5) prosecute claims which clearly lack merit in the proverbial "shotgun" approach to litigation.
Therefore, it should come as no real surprise that lawyers have become increasingly frustrated as trial practitioners, often lamenting to their cohorts that the practice "has changed" or "it just isn't worth it anymore." Many bar association studies(fn4) performed on the heels of the American Bar Association's 1986 Report on Professionalism(fn5) conclude that today's practice of law lacks professionalism:
--- Law schools do not teach professionalism. Instead, they teach students how to think like law professors and not necessarily like lawyers. Law students simply are not prepared to practice as trial lawyers.
[Please see hardcopy for image]--- There is a shrinkage of civility among lawyers. The "Rambo" style of practice is in vogue and litigating often involves a barrage of civil rules and discovery abuses which are not aimed at narrowing issues or preparing for trial.
--- The practice of law is no longer an art, it is a business dedicated to making money. There are too many lawyers and too few dollars. Attorneys are asked to bill unreasonable numbers of hours which precludes their community involvement and pro bono work.
--- The bench has not been diligent in fostering professionalism in the courtroom. Judges are perceived as too lenient.
These are the problems which have not only become a lament about the practice of law, but also summarize the frustrations and challenges faced by trial lawyers. The contemporary practice at times seems to have evolved to a point of complexity and stress that is nearly unmanageable. All lawyers today are pressured to bill at minimum levels designed to fuel increasingly bigger budgets and overhead. Some new associates report that they are expected to bill between 1,800 hours and 2,400 hours per annum. At eight hours per day, a 2,400-hour requirement imposes a six-day week for fifty weeks of each year.
Senior lawyers are also expected to bill increased hours to justify their existence. They are left with less time to supervise and train new lawyers. New lawyers have little or no time to take part in bar-related activities designed to enhance their profession.
Technology is also partly to blame for degrading the level of legal practice. Facsimile machines, computers and high speed copiers assure that the parries and thrusts of opposing counsel can be answered virtually instantaneously. Often, responses are propelled through the electronic media before lawyers have a chance to cool off and objectively evaluate their responses.
The sheer masses of paper that lawyers are capable of producing are all funneled to the courtroom where judges must sit amidst them. They simply cannot carefully evaluate all motions. Because they do not have time to reflect on matters, short minute orders without detailed explanations result.
These problems concern the Civil Rules and Discovery Abuses Subcommittee and set the stage for its work. This subcommittee has been charged with the responsibility to work with the Colorado Supreme Court Rules Committee in...
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