Wednesday, January 11, 2012
Discovery has been a neglected subject in law schools. When I was in law school, there was one case and about four pages of text on this topic in my Civ. Pro. Book, and it is not much better today. Yet, discovery is one of the most important issues for litigators in practice. Discovery is the foundation for settling a case, terminating a case, or trial. Cases are often won or lost based on discovery. Strategy is very important in the discovery process, but lawyers are usually required to learn discovery strategy on the job by trial and error.
This lacuna has now been well-filled by Discovery Practice by David I.C. Thomson (Lexis/Nexis 2010), which is part of the Skills & Values Series. Thomson organizes the book around each of the major discovery devices, including how to answer discover. In each chapter, he gives an excellent introduction to each topic, presents the federal rules, then has exercises applying the topic of that chapter. There are also on-line materials, which supplement the hard-bound ones. Each chapter relates to a products liability problem at the end of the book, and they require students to write interrogatories, respond to interrogatories, etc. In the alternative, professors can use their own big problem. Thomson recommends that the professor pair up students so that each student has someone to serve and respond to.
There is a wealth of information in each chapter concerning discovery techniques, strategy for using that technique, and the ethics of discovery. The information contained concisely here would take years for a litigator to learn in practice. I am especially impressed by the great amount of strategy advice, as well as the concentration on the ethics of discovery.
I highly recommend this book. This book can be used as a text for a discovery course or as a supplement to a civil procedure class, a pretrial litigation class, or a trial practice course. It would also be of great value to practitioners who were not lucky enough to have had someone like Professor Thomson in law school.
Nevertheless, some might question whether a discovery course should be taught in law school. I have already set out above the great value of a discovery course to new litigators. Big clients today are often reluctant to pay for the services of first- and second-year associates, but they might be more willing to do so if the associates were better trained in discovery. Equally important, as I have stated before, skills courses don’t just teach skills; they teach doctrine, and students learn doctrine better when they have to apply it. It takes detailed knowledge of both the doctrine and facts of a case to draft useful interrogatories or requests for production of documents. Similarly, students have to use their legal reasoning skills in drafting and responding to discovery that goes beyond what is usually required in law school. Finally, is there a better place to learn discovery ethics, which is an essential part of discovery, than in a discovery class?
I would love to see a class that combined a subject like products liability and discovery. The students could learn the doctrine from a normal casebook on products liability, then they could apply what they have learned to discovery exercises using Professor Thomson’s book.