30 June 2009

Civil Litigation At Its Worst

A Monday decision by the Colorado Supreme Court, decided by a 4-2 margin, over whether a sanction for discovery violations and related misconduct by lawyers in civil litigation was too harsh (the majority ruled that it was), nicely illustrates what civil litigation looks like when the pre-trial process gets ugly, despite (or perhaps because of the fact) that the underlying case was a fairly low stakes affair. The damages sought in the case had a principal amount of about $23,000 (the dividing line between the limited jurisdiction county court and the general jurisdiction district court is $15,000) in what appeared to all of the judges involved at trial and on appeal, to be a relatively simple case with only a few couple of seriously disputed facts.

While the ruling was highly fact specific and hence has only modest precedential application, appellate rulings on pre-trial procedure are rare, so the impact may be disproportionate.

No one on the Colorado Supreme Court believed that sanctions of some kind were not justified in the case, but the Court stuggled with how to balance deciding the case on the merits whenever possible with the desire to give trial judges enough authority to encourage lawyers and their employers not to behave badly.

While the case was won by the side receiving the harsh sanction, one has to question whether the win was worth the fallout involved in being identified as someone who behaved badly in pre-trial litigation in a publicly reported Colorado Supreme Court decision, which amounts to the moral equivalent of a public reprimand, to that lawyer, who will still probably end up paying the monetary sanction that was upheld, will still probably get stiffed on the client's bill in the case, and may still experience retaliation from judges and opposing counsel who might otherwise not have been aware of the incident in future cases.

Also, while the trial judge's sanction relating to the merits of the underlying case was not upheld on appeal, that same trial judge will preside at trial if the case goes to trial, and going to trial before an unhappy judge who has wide discretion on many matters is rarely a desirable propect for a client or that client's lawyer.

In the same shoes (and I am not in the same shoes), I would probably have simply agreed to indemnify the client for any losses suffered in this relatively a low stakes case by an unfavorable ruling on the merits as a discovery sanction. Indeed, the basic premise behind to adversary system in civil litigation, which makes less sense in criminal litigation where malpractice settlements rarely make a defendant whole, is that money paid in a malpractice suit, or under the threat of a malpractice suit, from an attorney who is probably not judgment proof, allows a client to be made whole, even when the client is punished by a judge for a mistake or misconduct that is really the client's lawyer's fault.

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