Why Play by the Rules?

The  movie drunk with the knife once famously said to  actor Paul Newman,  “There ain’t no rules in a knife fight!”. Paul’s character had asked him, the much larger man holding the knife, who was getting ready for the barroom brawl, for “the rules”, and upon getting that answer, Paul’s character kicked the drunk in the balls and picked up the knife, ending the fight.

The practice of law has rules.

“Mr. Hunter, why do you insist I answer “discovery questions” posed by the other side,  when the other side does everything to avoid answering ours?”

This is a fair question that I am frequently asked. It reminds me of my sons’ high school soccer days when we could see other team’s coaches were teaching the grabbing of jerseys and overreacting to slight fouls, and how World Cup soccer players faked injuries late in games. 

And then there are the Barry Bonds, Lance Armstrongs, Tiger Woods, and Roger Clemons of the world. Tiger’s new Nike ad says, “Winning Cures Everything.” Does it?

More simply put, “Why follow the rules when the other guy is cheating (and seems to be getting away with it) ?

Recently, in the State Bar Journal, WV Supreme Court Chief Justice Menis Ketchum II posed the problem as follows:

In the waning years of my four decades of law practice, and in the last three years reviewing appellate records, it has become apparent to me that a perverse culture of obstruction has developed regarding pusillanimous interrogaory objections and prefatory instructions. This culture condones and encourages lawyers to rely on the discovery process (the way lawyers obtain information from the other side under the “discovery rules” of the WV Rules of Civil procedure.) as a means of abusing an opponent. The strategy of many lawyers is “give as little as possible so [your opponent] will have to come back and back and back and maybe will go away or give up. These lawyers will do anything to keep from having to appear in front of a jury.
Justice Ketchem goes on to dissect the behavior of the lawyers who are part of this culture. I agree with him completely, and have written about “Disengenuous Lawyers” and “Short-sighted Lawyers” in this blog.
My answer to my client is:
1. By answering the questions completely, and reserving only privileged or confidential material, the other side is helping us to prepare our case, and we are showing the other side that we have a strong one. Acting like  you have something to hide just motivates the other side to dig harder.
2. And, as silly as it may sound to my cynical colleagues who want to win at any cost, I am an officer of the Court who has taken an oath to respect the Court and its rules. That’s what I intend to do.
3. I explain to my client that this abusive behavior is the very behavior that caused the divorce or controversy in the first place, and that lowering ourselves to the other side’s level is not the best course of action.
4. I promise my client that if the other side is foolish enough to take us on in a contested trial, I will punish them, within the rules, for the way they have behaved. The Court is the referee, and if the referee sees a cheater, he knows how to deal with him, most of the time anyway.

5. I also persistently and consistently follow the rules in working to get the other side to give us what we are entitled to, costing that party money and grief until he gives us what we ask or the Court can see  he is hiding it.

The “discovery rules” require the other side to answer most reasonable questions. An objection based on “relevance” does not allow the other side to refuse to answer, although the lawyer “culture” described by Justice Ketchum does just that.
A partial or incomplete answer is a failure to answer, but try to convince my  “disengenuous” colleagues of this.
A claim not to have a document that the party can readily get from his employer or bank or credit card company is a refusal to answer.
Some lawyers are just too lazy to push the client to get the answers or the documents. Some do not care. And some, quite frankly, are cheaters.
Perhaps you think one of those cheaters will be better for you, but remember this:
1. The cheater will cheat you. Why do people who have affairs with married people think that person will be faithful to them? I never understood this.
2. The cheater does not care about you, or your children, or your family, or the greater good. The cheater cares about………….the cheater of course.

This post was written by Burton Hunter

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