This is the second of a three-part interview with United States District Judge Mark Bennett. In the first installment, we unpacked some of the factors and precipitating behavior that prompted Bennett to level one of the the more headline-grabbing discovery sanctions in recent memory.
Here we parse the difference, as he puts it, between "trial lawyers" and "litigators," define the role of the judiciary in resolving discovery disputes, and reminisce about the early days of personal computing. Judge Bennett's philosophy might strike some readers as idealistic, but it provides much needed perspective from someone who succeeded in the profession before it was marked by gridlock, inefficiency and combativeness. It also gives insight into the fairly scathing views of at least some faction of the judiciary on the state of modern discovery.
Logikcull: What impact do you think the huge increase in data volume has had on access to justice? It seems like, and I think this is what you've laid out, on the one hand you have smaller parties who can't afford to handle discovery dumped on them by the other side. And on the other hand, there's a greater chance that large parties will settle meritless claims simply because they aren't worth the money it will take to preserve and gather and search and produce all this information. Is that a fair assessment?
Hon. Mark Bennett: Yes, that's an excellent assessment and one I agree with. And it works both ways. This isn't a defense-plaintiff issue. Both sides are guilty of abuse of discovery practices.
Logikcull: So again, what's the implication for access to justice?
Bennett: Well, the implication for access to justice is that parties with meritorious claims have a harder time getting their cases to trial because of the way we've morphed from a trial lawyer approach, where the trial lawyers go to the heart of the matter, don't take so many unnecessary depositions, don't engage in unnecessary discovery -- just go to the heart of the matter and either settle or go to trial. But with the system we have now, once you get through discovery, nobody can afford to go to trial.
"WITH THE SYSTEM WE HAVE NOW, ONCE YOU GET THROUGH DISCOVERY, NOBODY CAN AFFORD TO GO TO TRIAL."
Logikcull: Alright, judge, let me read again from your opinion [in Security National Bank of Sioux City v. Abbott Laboratories], this time quoting from Judge Paul Grimm and David Yellen.
"The truth is that lawyers and clients avoid cooperating with their adversary during discovery—despite the fact that it is in their clear interest to do so—for a variety of inadequate and unconvincing reasons. They do not cooperate because they want to make the discovery process as expensive and punitive as possible for their adversary, in order to force a settlement to end the costs rather than having the case decided on the merits."
So let me ask, if discovery can indeed be used as a weapon, and an effective weapon, to wear down the opposing side and force a settlement -- to your point, it happens all the time -- why is it in a lawyer's interest to cooperate?
Bennett: Because it's in a lawyer's best interest to get a case resolved as inexpensively and as fairly as possible for their client. So, I hate to use myself as an example, but when I was in private practice, I had an open file policy. So I would say to the other lawyer, before you do your formal discovery, here's what I'm gonna do. I've already taken testimony from all the key witnesses that I was ethically allowed to take statements from. That's attorney-client work product. I'm going to give you those statements. I don't have to. But I'm going to give them to you up front because I'm gonna show you the strength of my case.
I also have some key documents. I'm going to give you those. In fact, you can come look through my file and see anything in it except my notes for cross examination and my attorney-client privileged documents, but I'll probably be glad to wave privilege at some point so you can see that as well. But I'm not gonna do it until I know I can trust you. So I very seldom engaged in formal discovery.
And if lawyers today had that kind of approach -- said "Here are the key documents. This is what we need to be talking about. Here are our defenses. Here's why we think we can support them." -- if they talked to each other and voluntarily exchanged information, you could reduce the cost of litigation by over 95 percent. And so it's in your client's best interest to do that.
"IF LAWYERS TODAY TALKED TO EACH OTHER AND VOLUNTARILY EXCHANGED INFORMATION, YOU COULD REDUCE THE COST OF LITIGATION BY OVER 95 PERCENT."
[raising his voice] Why do attorneys always hide behind attorney work product? It's in your client's best interest to waive the work product privilege and give that information to the other side. I mean, if I'd taken statements of witnesses that are work product and they totally undermine the other side's claims or defenses, why wouldn't I want to give them that at the beginning of the case to show them where the truth lies? Why would you want to hide the ball? It perplexes me to no end! Just because you can, it's in your client's best interest to hide the ball? I don't think so!
Logikcull: Judge, let me ask you this, because it's something you bring up again in the Abbott Laboratories opinion, which is about the role of the courts in mediating discovery disputes. What role do you think judges should play in assuring that discovery is, as Rule 1 says, "just, speedy and inexpensive"?
Bennett: Well, we play an important role because it's obvious that today's... I'm distinguishing here between trial lawyers and litigators because they approach things very differently. If you have two evenly matched lawyers and they're lawyers that actually go to trial, they tend not to have discovery disputes. And if they do, they're incredibly few, they're highly focused, very targeted over maybe one or two document requests, very narrow. But if you have litigators, they're fighting about everything. And particularly if they're being paid by the hour, they're encouraged to fight about everything.
And so judges have to be vigilant to try to nip that in the bud and resolve disputes as quickly and as inexpensively as possible.
"IF YOU HAVE LITIGATORS, THEY'RE FIGHTING ABOUT EVERYTHING. AND PARTICULARLY IF THEY'RE BEING PAID BY THE HOUR, THEY'RE ENCOURAGED TO FIGHT ABOUT EVERYTHING."
Logikcull: Let's turn to the issue of legal technology. You've been an innovator in that area for a long time. You helped design, develop and test case management software early in your judicial career. You were also instrumental in the remodeling of the main court room there in Sioux City, where you're talking to us from, which has been outfitted with a state-of-the-art evidence presentation package. It's now possible in your courtroom to take real-time witness testimony from around the world. And I believe your courtroom has become a model for many others around the country.
Where did this fascination with technology come from?
Bennett: Well it came from my early experience starting my own law firm. I thought that one of the ways we could leverage the small size of our law firm was by having cutting-edge technology. So my two partners and I, when we first started our law firm, we spent $50,000 -- which in 1976 was a lot of money for lawyers just starting out -- to buy desktop computers from an IBM promo tape. They hadn't even been built yet! And so we were the first law firm in Iowa to have desktop computers. And it allowed us to have a relatively high volume practice efficiently. So I've always been into using technology in the law.
"MY TWO PARTNERS AND I, WHEN WE FIRST STARTED OUR LAW FIRM, WE SPENT $50,000 IN 1976 TO BUY DESKTOP COMPUTERS FROM AN IBM PROMO TAPE."
And in our high-tech courtroom, all the exhibits are shown to the jurors electronically, and now, we're one of the few courts that has high technology in the jury deliberation rooms so that the jurors can see all of the exhibits and data that has been admitted into evidence -- even audiotapes or videotapes. We've made it so simple that any juror who knows how to turn on a computer can run the system.
We'll take a trial that in most districts would take three weeks and try that trial in five to seven days because I don't allow paper in the courtroom. It's all done electronically.
As told to Robert Hilson, a director at Logikcull. He can be reached at firstname.lastname@example.org.