Friday, September 30, 2016

Meet and confer

For those who still think that litigation must always be conducted in an adversarial manner--that litigants must oppose anything suggested by the other side, and bring every dispute before the court for resolution--consider that the courts are telling you otherwise. It's not just that the courts routinely encourage settlement, and discourage trials; it's also that they have changed the rules to compel efforts at negotiating rather than seeking judicial resolution of problems that occur during the course of a lawsuit. It's almost as though the courts don't believe in the process they are designed for, because they are requiring you to engage in a different process first.

Meet and confer requirements have been around for a long time with respect to discovery disputes. Litigators understand that judges don't want to be bothered with the laborious and nit-picky task of deciding whether parties have given adequate responses to interrogatories and document requests. They don't want to referee attorneys' conduct during depositions. They don't want to order people to turn over information that they should have turned over voluntarily. Lawyers see the sense of requiring efforts to resolve those problems without the court's assistance before filing a motion to compel or for a protective order.

But many lawyers trained with an adversarial mindset treat the meet and confer requirement as just another opportunity to engage in combat rather than give-and-take. Many "meet and confer" sessions are initiated by letters that take the form of an ultimatum rather than an invitation to negotiate. Many lawyers think they can satisfy the meet and confer requirement by sending such letters without even having a telephone meeting with their adversary, and without making any effort to explore consensual resolutions. That type of conduct, because it is not a good faith effort at an informal resolution of the dispute, has been held to violate the rule. Obregon v. Superior Court, 67 Cal.App.4th 424 (2d Dist. 1998). Nevertheless, adversarial habits are hard to break, and many lawyers continue to treat the meet and confer requirement as merely a hurdle on the way to an inevitable motion to compel, a motion that can only be avoided by the other side's capitulation to the aggrieved party's demands.

The obligation to meet and confer, which applies to nearly every motion filed in federal court, has been extended this year in the California state system to apply to demurrers as well as discovery motions. C.C.P. Section 430.41. Like discovery motions, demurrers are another form of motion disliked by many judges. Demurrers rarely do much to move the case along, usually resulting only in an amended complaint, but do give the parties an opportunity to spar over the adequacy of their compliance with arcane pleading requirements. I'm not saying that pleading sufficiency is never important, but I am saying that most of the time, the parties should be able to work out these pleading issues without the assistance of a judge. That is what the courts are now telling parties they must do. If we heed the spirit as well as the letter of these rules, then lawyers and litigants should be attempting to resolve all aspects of their disputes in a constructive, problem-solving manner.