TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, December 4, 2008

Updated (x2): Miller on the Wal-Mart Suit

Ron Miller comments on the five-minutes-after concept in high-profile cases, where suits are filed immediately. 

It seems to me that having the suit filed has (at least) one benefit: it potentially gives the decedent's family's lawyer discovery powers that much more quickly, to be able to get access to information before memories fade, etc.  Perhaps the negatives Ron notes outweigh any benefit from filing so quickly.

Update: Walter Olson comments further, questioning (quite reasonably) whether the ability to get discovery is actually used, or if it's just a way to get a press hit.

Another update: Eric Dinnocenzo provides a lengthier commentary.


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I know that this is not spot on to this post, but the question which you posed sparked something in my brain. From my persepective, suits get filed quicker for two reasons: 1) preservation of physical evidence and 2) because a determination has been made that non-litigation methods of resolution will be inadequate or futile.

However, the thought that the question was sparked was about the whole process of discovery. The more I go through the discovery process, the more I think that it is all nonsense. The whole process of crafting interrogatories is just an excuse for billables. In my limited experience (six years now in California), the only valuable tools in discovery are requests for production of documents and deposition.

Part of the reason that discovery is so futile lies with the attorneys. A good attorney will say as little as possible in response to any interrogatory, giving just enough evidence so as to avoid a Union Bank type Motion for Summary Judgment. Also, when faced with a tough request for admission, they will demurrer to it, giving only objections.

The other part of the problem lies with the courts. Too often, the discovery calendars seem to be set up to avoid hearing the discovery problems at all. When you get to the person hearing the matter, you typically end up in front of a commissioner who does not want to make a decision, and if they do make a decision, it will be the least definitive statement possible when it comes to ordering the production of discovery, sanctions, or costs.

That being said, I still make my discovery requests. Have to give the insurance defense lawyers something to bill for.

Posted by: Bill | Dec 4, 2008 12:39:11 PM