I’ve been buried in big data for the last week, so look forward to my annual pilgrimage to our nation’s capital for the Georgetown University Law Center’s Advanced E-Discovery Institute, starting Thursday. Some years the GULC AEDI is good, and some years it’s great; but, every year it’s a boisterous class reunion for the Sedona Bubble Boys and Girls for whom the Institute has become an unmissable event.
Though I mourn the Institute’s waning efforts to teach the “e” in e-discovery, the 2013 Institute nonetheless retains its two finest features: the opening case update and the closing judicial round table. No other conference brings together a bigger, brighter constellation of e-discovery “rock star” judges than Georgetown.
This year, I’m gratified to be a part of a new track dedicated to teaching cooperation in practice, offered by the GULC in conjunction with The Sedona Conference®. It’s a taste of the two-day Sedona Conference Cooperation Training program in which I served on the faculty in Phoenix last February.
I was initially dubious about the prospect of teaching cooperation to lawyers. It brought to mind the old caveat about trying to teach a pig to sing (it wastes your time and it annoys the pig). But as the excellent faculty in Phoenix worked with the mix of naive newbies and grizzled veterans in attendance, I came to appreciate that there are indeed cooperation strategies that can be learned.
I’ve long taught the mechanics of a successful Rule 26(f) Meet & Confer: the preparation and inquiry that must precede the conference(s), the questions that should be posed and fielded during the conference(s) and the specific issues that must be put to bed in a proposed joint discovery plan following the conference(s). But I’ve come to see the need to instill cooperation strategies, too; helping lawyers hold in check their pugnacious proclivities and embrace smarter ways to get to “yes.” Sun Tzu doubtlessly said it better, but adversarial processes work best when you devote your energy and resources to the battles that matter most. Cooperation promotes that.
Here are some of the questions I hope our faculty will be pondering as we assess the attendees seeking to demonstrate their cooperation strategies this week:
- Does counsel act in a manner calculated to promote candor and cooperation? Here I mean, e.g., courtesy, respect, dialogue and avoidance of confrontation without purpose. Such behavior is manifested in speech, demeanor and body language.
- Does counsel actively listen to the other side?
- Is counsel forthcoming about discovery sources, forms, metrics and methods?
- Does counsel prevent disagreements on particular issues from becoming impediments to broader progress?
- Does counsel furnish complete, accurate and comprehensible information–including, as appropriate, strategic disclosure of problems–in a manner tending to build trust?
- Does counsel manifest a clear and practical set of objectives for the conference?
- Does counsel share the meeting or seek to control it?
- Does counsel supply a plan or framework for moving forward constructively and, if so, is such plan or framework presented rigidly or flexibly?
- Is counsel combative or argumentative when proposals are rejected?
- Does counsel incorporate and communicate incentives to the other side?
- Does counsel offer any concessions, disclosures, testing or sampling tending to demonstrate cooperation and candor?
- Does counsel endeavor to identify standards and goals on which the parties can agree (e.g., Sedona Conference Principles)?
- Does counsel demonstrate practical strategies to get to “yes?”
- Is counsel assertive and confident without being overbearing, combative or confrontational?
- Does counsel appear knowledgeable and decisive or unprepared, uncertain and inclined to delay and defer agreement?
I hope to instill in the participants the recognition that we don’t cooperate and promote transparency to help the other side. We do it because of the genuine and significant benefits it affords our side. It allows us to move forward with greater safety and certainty, conserves money and time and forestalls misdirected effort. Moreover, cooperation supplies useful intelligence about an opponent’s knowledge, capabilities and expectations. Finally, cooperation builds trust, and trust fosters the ability to secure concessions and resolutions.