Cooperation does not mean collaboration

By | 17th May 2012

I enjoyed my life as a commercial litigation lawyer.

Early in my career, I learned that the most important person in my working life was not the client, important as the client clearly was, nor the partner for whom I worked, although it was certainly important to have a good working relationship with him (in my experience it was always “him” in those days). No, the most important person in the office was the managing clerk.

I suspect I am right in saying that there is no such animal today. Today, with its all graduate entry into the profession and the obsession with paper qualifications often to the detriment of any real understanding of how to make things happen, law firms are full of paralegals, contract lawyers, trainees (not articled clerks) and other apparently brilliantly qualified individuals.

In the dim and distant past, there was a small and highly skilled group of people who really knew the nuts and bolts of the litigation process. They were not partners, nor solicitors, indeed in many cases, they had no formal qualifications at all but they were a mine of detailed information about the rules and how to interpret them. Most importantly in my case was their friendship with all and sundry “down at the Courts” as a result of which they appeared capable of arranging for summonses I had failed to have issued, to be issued without fuss and within the relevant time limits even if the resulting document was covered in rather more red stamps than I had hoped!

Many are the times I recall hearing those comforting words “Don’t worry, Charles, I’ll pop down and see Fred and he’ll sort it out!” Where are those arbiters of common sense today?

Of course, I was trained in the days when the very idea of cooperation was anathema to any self respecting City litigation lawyer. I admit to enjoying the game of snakes and ladders which was how I regarded the deliberate use of the rules to frustrate an opponent. But gradually, things changed and the era of laying your cards on the table dawned.

Or did it? More accurately, I should ask, has it dawned yet? And if not, why not? After all, cooperation does not mean collaboration, does it?!

Most people accept, (at least I hope I am right about this), that litigation takes too long and is too expensive. The part of the process which tends to engage lawyers in the most time, and therefore to cost their clients the greater part of the fees for the whole case, is the handling and disclosure of documents. Not surprisingly, therefore, attempts have been made across common law jurisdictions to limit the number of documents to be disclosed (and our own Jackson reforms pencilled in for April 2013 are on the point) and to seek methods by which the collection, analysis and review of documents may be speeded up so as to reduce the overall costs of the litigation.

Some of you will have heard of the Sedona Conference Cooperation Proclamation. Briefly the proclamation issued in 2009 starts with the following words:

“The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (“ESI”). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes—in some cases precluding adjudication on the merits altogether—when parties treat the discovery process in an adversarial manner [sic]. Neither law nor logic compels these outcomes.”

His Honour Judge David J. Waxse is a United States Magistrate Judge in the District of Kansas. He has written an article in the Richmond Journal of Law & Technology entitled Cooperation—What is it and why do it?” [PDF – 18pp]Honestly, I cannot see such an article being written by an English or Scottish judge. It is a remarkable discussion of what cooperation means both from a scientific point of view drawing on research which shows why human beings cooperate with one another and from the litigation context via Sedona, the ABA rules, the Model Rules of Professional Conduct and the Federal Rules of Civil Procedure.

I urge you to read the whole article which is highly instructive. Frankly we could all do with a dose of its wholesome common sense. As a taster, Judge Waxse says that most people learn about cooperation at school and considers that some would benefit from the list for elementary school teachers as follows:

SHARE when you have something that others would like to have.
TAKE TURNS when there is something that nobody wants to do, or when more than one person wants to do the same thing.
COMPROMISE when you have a serious conflict.
DO YOUR PART the very best that you possibly can. This will inspire others to do the same.
SHOW APPRECIATION to people for what they contribute.
ENCOURAGE PEOPLE to do their best.
MAKE PEOPLE FEEL NEEDED. Working together is a lot more fun that way.
DON’T ISOLATE OR EXCLUDE ANYONE. Everybody has something valuable to offer, and nobody likes being left out.

With judges like this and heavyweight reports such as the Rand report on Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery [PDF – 169pp] already referred to by me in my previous post [Globalisation, 8th May, 2012] it is difficult not to feel optimistic that, in the end, the world of litigation will become a saner, more efficient and cost effective place.