The importance of using the tools of the legal trade

A discredited politician from the 1930s was fond of quoting an expression that children regularly hear: “If at first you don’t succeed, try, try again.” Hopefully, I’m not discredited and hopefully that credo stands for something of value and use.

I was thinking about it when I was forced to bring yet another motion in court against a recalcitrant, reluctant, and difficult defendant. That defendant, who I’m suing as a result of a severe accident, has been, to my way of thinking, withholding documents. These documents should have been produced in response to a request for production. (Please see Rule 34 of the Massachusetts Rules of Civil Procedure). They are not privileged and are highly relevant to my client’s personal injury case.

Sometimes, of course, you deal with defendants who don’t want to produce incriminating information despite an obligation to do so. Believe me, they have an obligation if the document request is properly phrased and crafted and doesn’t infringe on privilege. (Of course, I am assuming that they are relevant but the rules broadly define relevance in the discovery phase of a case.) Well, in this particular case, again a very serious accident, I wanted to get records of a certain meeting that may have been held. This meeting would show that the defendant had ample notice of problems with the kind of machinery involved. This is therefore a key piece of evidence. After sending a document request and then a motion to compel only to be followed by another motion to compel and yet another motion to compel, I finally got some satisfaction and relief.

At 5:00 the night before the final two depositions in the case, the defendant produced a nine page document, actually a memo, describing a mandatory meeting which demonstrated that they had full knowledge of the risks of the product that was the subject of the suit. As a result of that persistence, I like to think I’ve gotten information that might constitute a “smoking gun”. If it weren’t for persistence, that revelation of documents would not have been forthcoming. Persistence pays off. In another context a mediator has said to my clients “if you be patient, I’ll be persistent.” I like that saying and I like that sentiment.

I think your lawyer has an obligation in the right case to pursue certain avenues all the way. It’s not like going down a rabbit hole. On the contrary, it can lead to a gold mine of information in my opinion. The temptation on the defendant’s part is often to put up walls or barriers to the ready access of information. Those tactics are not what is contemplated by our Rules of Civil Procedure because they were instituted, in part, to avoid “trial by surprise.” I imagine “trial by surprise” was how it was done in the old days. That is not a shock because there was such limited discovery in those old days. A person suing was limited to written interrogatories, not the most effective means of establishing the facts. I imagine it must have felt as if the deck was stacked against the plaintiff. Thankfully, we are in a dramatically different age, one where the rules governing the behavior of litigation is vastly different. Moreover, technology allows us to learn a lot about everyone, including adversaires. When looking for a lawyer, make sure you find one who is persistent and avails himself/herself of all of the modern tools, whether they be the tools of the legal world or those of any number of other sources.