Chapter 12: Discovering Discovery

[Lawyers in civil practice spend an amazing amount of their time fighting over "discovery," much of it tedious almost beyond belief, and almost all of it pointless - but you never know in advance which part isn't pointless.]

Discovery is the phase of litigation during which the parties figure out how much a case is "worth"—the appropriate settlement figure.  It's a period of pretrial jousting that allows the parties to sound out the other side, calculating their odds of prevailing at trial and estimating the seriousness of failure.  By multiplying the estimated odds of victory against the projected dollar range of a verdict, the lawyers can come up with a ballpark figure for a settlement.  Discovery, in practical terms, is a highly stylized form of negotiation.  It's kabuki negotiation, in which the lawyers put on masks and make stereotyped gestures. ...

Another function of discovery is to give the parties something to file motions about.  If one party thinks the responses it received to its document requests, interrogatories, or deposition questions were excessively evasive, it files a motion to compel discovery.  If the party thinks the other side's requests, et cetera, are too broad, it files a motion for protective order.  Regardless of how the matter is presented, judges are strongly inclined to "split the baby"— rather more like Shlomo in Joseph Heller's God Knows, who was really ready to cut the baby with a sword, than the King Solomon of legendary wisdom.  So usually the parties have to go through a supplementary or substitute round of discovery in response to the judge's orders, which opens up the possibility for a second round of motions. 

In this way, discovery means that instead of going to court to resolve the parties' dispute at trial, as in the old days, lawyers go to court to resolve their own disputes in a series of pretrial hearings.  Discovery has grown into a way to deal with a big legal dispute by surrounding it with lots and lots of little ones, all of which must be addressed first.  It's like sending out dozens of tugboats to guide an ocean liner into port, then requiring the liner to wait in the bay as all the tugs are docked.