Cost of Discovery
While recently browsing around on a web site where current and former clients rate and critique lawyers, I saw a comment that piqued my interest. The lawyer in question was downgraded by the client for charging what was perceived to be an exorbitant fee (around $2,000) to take some written discovery and conduct a deposition. (Written discovery is the process of asking the other side questions in writing that they must answer under oath; generally speaking, written discovery is followed up by verbal questioning under oath, which is known as a deposition. Depositions can run 15 minutes to 15 volumes (days!).)
In the review in question, the client was upset because at trial it turned out that the lawyer only used a small fraction of this discovery at time of trial. There are proper and improper uses of discovery, and discovery is one area in which litigation costs can skyrocket out of control. However, if your lawyer sends out 100 questions and/or requests for documents in written discovery, and takes a 4-hour deposition, your lawyer will probably end up with a large volume of background information that cements the facts of your case, and he/she may unearth have one or two written questions and the same number of deposition passages (per deposition) that are directly put in front of a jury at time of trial. As a lawyer, you are successful if you get one or two written questions and one or two deposition passages (per deposition) that are useful at time of trial.
To me, the criticism of the lawyer in question comes down to an issue of communication between the lawyer and the client. As a lawyer, you oftentimes do not know what is going to be useful as you are going through the discovery process. Your job is to be thorough in collecting information, and then later on review to be thorough again so you can create your case. If a jury saw every piece of paper exchanged in discovery they would walk into court, fall asleep 10 minutes later, and wake up as instructed on breaks and when it is time to go home. At the same time, it is important that a client understand what information is being sought through discovery and how much obtaining the information will cost. Having such an understanding as the case progresses will prevent the feeling afterwards that the lawyer overworked the file, and/or that the lawyer obtained too much useless information. I would argue that no information obtained through discovery is useless, but simply that a cost-benefit analysis should be utilized and if costs are an issue then the information sought must be prioritized.
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