Thou Shalt Not Dwell on the Trees

The full commandment is Thou Shalt Not Dwell on the Trees Rather than the Forest. Sadly this is a disease  many lawyers catch. It is often seen in young lawyers, and in lawyers billing on an hourly basis, but it is not confined to these lawyers. The disease continues throughout the career of abusive lawyers who use incessant  dwelling within the trees to wear down an opponent.

The problem with dwelling on the trees is it wastes time, is usually of plot, and judges hate it.  This is because little is gained when the lawyer overly focuses on procedural and discovery issues that have little or no relevance to the merits of the case. Dwelling in the trees rather then the forest is seen in:

Nonsense Affirmative Defenses. These include “Failure to State a Claim” in a solid lawsuit where the merit of the pleading is certain; “Insufficiency of Service” where service has been obtained; “Failure to Mitigate” despite plaintiff diligently attacking injuries;  and,”Failure to Join a Party” in a simple two party case. The list goes on-the tree dweller throws out affirmative defenses despite the fact they will never be argued.

Abusive or Meaningless Discovery. This is seen in the interrogatories of the tree dweller. Typical abusive/meaningless questions include: Questions on specifics of medical treatment when the answers are in the medical records that are being produced; slightly changed “repeat questions” that call for same information already given;  and, questions about past medical conditions or problems that have nothing to do with the area of the body injured in the case.

Discovery Games. Refusing to provide discovery answers or documents by standing on a technical language or  a drafting mistake when the discovery sought is still clear to the non producing party; Ignoring discovery deadlines on purpose forcing the issue up to the brink of a motion to compel;  and, making technical discovery objections thereby forcing a discovery motion.

Trial Games. Refusal to cooperate with opponent during trial on matters that have nothing to do with the merits of the case but do have a lot to do on efficiently moving the case through trial.

All of the above dwelling in the trees issues are non existent when the lawyers live in the forest. This means they have a handle on the substantive facts and law of the case, they cooperate on producing documents opposition is entitled to, and they cooperate on timing issues in the trial so it moves efficiently.

    8 Responses to “Thou Shalt Not Dwell on the Trees”

    1. Roxanne says:

      Pat,

      I really enjoy your posts – very informative.

      Roxanne

    2. Actually I read it yesterday but I had some thoughts about it and today I wanted to read it again because it is very well written.

    3. Francisco Bisker says:

      I’m so happy you wrote about this. Will you be adding to it in the future?

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    6. Merissa Enke says:

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