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April 14, 2006

Update to SLM No. 1: Rule 36, Requests for Admission - More Than A Discovery Tool

Re: SLM No. 1, Rule 36, Requests for Admission, David Fischer, over at Antitrust Review and in Porter Wright's DC office, pointed out something useful--especially for firms (like his, mine) which are active in Michigan, Ohio, Kentucky and Tennessee:

There is another reason to love requests for admission: in some, but not all, federal circuits, requests for admission are not considered tools of discovery. As a result, in courts in those circuits, you can serve requests for admission after the close of fact discovery. See, for example, Misco, Inc. v. United States Steel Corp., 784 F.2d 198, 205 (6th Cir. 1986). See also 8A Charles Alan Wright et al., Federal Practice and Procedure ยง 2253 (2d ed. 1994) (Rule 36, strictly speaking, may not set forth a discovery procedure at all because a party does not seek to discover a fact or opinion through a request for admission. Instead, a request seeks to have a party concede the genuineness of a fact or opinion that the requesting party believes to be settled.).

Posted by JD Hull at 10:24 PM | Comments (0)

April 12, 2006

Sensitive Litigation Moment-No. 1: "Lonely" Rule 36, Fed. R. Civ. P.

From the standpoint of both the client and its trial lawyer, Rule 36 of the Federal Rules of Civil Procedure, "Requests for Admission", can get things moving in the pretrial discovery process. And to an adversary who isn't familiar with Rule 36 or goes to sleep, it can be a real jolt because of the potentially severe consequences of failing to respond within 30 days. In a nutshell, Rule 36 permits you to serve on another party a request to admit the "truth of any matters" or "genuineness of any documents" described in the request. On factual matters, since Rule 36 is limited only by the liberal precepts of Rule 26, you can ask the other side to admit a wide range of "matters": (1) key but uncontested facts and (2) damaging facts. Failure to answer (i.e., "Admitted" or "Denied") or competently object to the request within 30 days results in the matter being deemed admitted and "conclusively established".

Talk about a wake up call for the other side. In some federal district courts you can immediately file the admissions with the clerk. However, ironically, historically Rule 36 has been used by trial lawyers way less often than other written discovery tools, like interrogatories (Rule 33) and requests for production of documents (Rule 34). Nothing bad happens if you don't meet the 30-day deadlines for these rules--just goofy "lawyer-centric" phone calls, requests for extensions, angry letters, and motions to compel under Rule 37. All of which is usually unproductive and makes even sophisticated corporate clients nuts. But opponents ignore Rule 36 at their peril. Rule 36 is also useful to authenticate documents. Finally, and importantly, you can also combine the requests with related interrogatories and document requests to ensure that the discovery process keeps moving.

Coming soon: Sensitive Litigation Moment-No. 2: The "Miracle" of Rule 56(f), Fed. R. Civ. P.

Posted by JD Hull at 09:03 AM | Comments (0)

April 11, 2006

Kane: Visit Your Client At Work.

It makes perfect sense--and hardly anyone talks about it. But are we doing it? Visiting your client (GCs, CFOs, execs, plant managers) at work is a good way to get a 3-D sense of what your client does, and to learn more about its look, feel and "culture". It's also a great idea for showing you value the client, and that you want more of its business. Tom Kane at The Legal Marketing Blog says it all in his post "Client Site Visits Result In Work". My humble two cents: site/office visits are particularly important at the beginning of a new relationship or new project. As Tom mentions, don't bill it--but you still need to do it. See this fine post by Tom Kane.

Posted by JD Hull at 09:31 AM | Comments (0)

"That Lawyer Dude's" Advice to GCs on Costs, Real Quality and Real Life.

"That Lawyer Dude" (a/k/a Anthony Colleluori), and a few others, have commented on the April 7 post on Exemplar Law Partners and/or another post of the same day, One GC's View of the Billable Hour, in which James Holden, the San Diego-based GC of Rhino Linings USA, Inc., also held forth. Lively comments followed both posts. That Lawyer Dude's comments, reprinted in part below (click here for the whole thing), has some provocative but smart advice for GCs including a plea to them I've heard before: chuck your large law firm "litigators" and start hiring "trial lawyers". Overall, TLD's comments and his passion on the issue grabbed me. Although I didn't agree with his suggestion that firms should negotiate hourly rates (I think you do this rarely, and only in the expectation of high volume work), and a couple of other points, TLD got me thinking:

Most general counsel bring the hourly bill mess on themselves with their C/Y/A attitude. Stop bringing everything to the biggest, baddest, firm and start looking to smaller and better run firms that will appreciate your work. Look for firms where the partners and senior attorneys actually work on your case rather than review the work of others (or more precisely their billing sheets.) Stop thinking that the only lawyers you can entrust your affairs to have 100+ years combined experience. Stop Using Litigators and Start Finding Trial Lawyers.

Want to cut costs? Give bonuses to firms that come under your budget (note I said yours, not theirs). If they want your work in the future, they won't sacrifice your case for the bonus. On the other hand they will have an idea of what you think the case is worth. Stop looking for attorneys based on RFP and start looking at the bar journals, the seminars, and the court house scuttlebutt. (In other words get out of your chair and get to work looking.) Small or medium-sized firms do not spend time doing an RFP's....

Further, set a reasonable time period for the case to come to trial. It is unlikely that a case that is around 9-12 months will get billed as many hours as opposed to one that is around 18-24 months.

Demand a discovery PLAN that you must approve (not the same as a discovery schedule.) Find out how and what counsel is going after and see that they stick to the plan or change it with your permission only. Demand to do some of the work in house.

The billable hour is unfortunately the best way a trial law firm can be sure it will be around next year. Trial work has too many variables to predict how much a case will cost. It is a fallacy, at least on the small/medium firm level, to believe that the firm is seeking to churn its hours. There are a lot of clients to keep happy. Without the guarantee that a client will pay for work year after year, the firm cannot afford to neglect one client for another....

Negotiated rates, oversight, realistic budget goals, deadlines, and discovery plans, along with an open mind to new and different types of trial counsel, can cut litigation costs and provide success in the litigation. More work for General Counsel? Maybe. Worth the extra effort? Only General Counsel's year end bonus will tell.

Posted by JD Hull at 02:31 AM | Comments (0)

April 10, 2006

Blawg Review #52 - If this doesn't sell you on lawyers blogging, nothing will.

This week's Blawg Review is hosted by David Giacalone at his f/k/a. A lawyer who despite his D.C. antitrust and Harvard Law pedigree cares about good writing and does it very well, David in Blawg Review #52 reveals as usual the wondrous range of possibilities in substance, creativity and tone blogging can offer. And the guy has an opinion about a thing or two. As regular readers know, David's site, while substantive and sometimes edgy, mixes law, ethics, politics and poetry (haiku, and he even has a primer for the unwashed). Finally, f/k/a is always beautifully done. It won the 2005 Blawg Review Award for Creative Law Blog.

Posted by JD Hull at 07:34 AM | Comments (0)