A proposed amendment to Fed. R. Civ. P. 30(b)(6) is drawing fire from the defense bar and their clients. Here is the proposed amendment: FRCP 30(b)(6).

Here is the Lawyers for Civil Justice’s comment: Lawyers for Civil Justice Comment.

Lawyers for Civil Justice is a national coalition of corporations, law firms and defense trial lawyer organizations. Based on their comments, it’s a group that thinks discovery is about gamesmanship and keep-away instead of exchanging relevant information.

The current problem with Rule 30(b)(6) in practice is companies and their lawyers often do not prepare the 30(b)(6) witness for the deposition. This results in the questioner getting a lot of “I don’t know” answers.

The witness does not know because he wasn’t adequately prepared or the plaintiff didn’t give fair notice of the topic. The corporation does know. The 30(b)(6) witnesses’ job is to provide the information the company knows, regardless of whether the witness knew it.

And it doesn’t have to be that hard. There have been times when defending 30(b)(6) depositions where I ask for a recess and tell the witness the answer so they can say it on the record. What did the plaintiff lawyer say? Thank you.

Instead of preparing or going and finding out, many defense lawyers stand pat on “I don’t know.” In my opinion, that’s a mistake that could rise to the level of malpractice if “I don’t know” gets broken off in the company at trial. If the topic was fairly noticed, the defense lawyer might should interject that we’ll work on getting an answer for you.

Something is needed to address the problem. The proposed amendment takes a crack at it.

The LCJ comment is kind of stupid. It asserts that the amendment allows plaintiff lawyers to have a say in the identity of 30(b)(6) designees. It doesn’t.

It argues that what is really needed is a 10 topic limit to 30(b)(6) depositions. It’s not.

I list a lot of 30(b)(6) topics to help the company prepare witnesses for the deposition. I can give you 5 topics. But good luck preparing your witnesses for my questions. Limiting to 10 topics will make the problem of unprepared witnesses worse.

I can’t help but think that what these people really want is to abolish Rule 30(b)(6). Make it impossible to pin a company down.

A lawsuit is supposed to be about resolving a dispute between the parties. But many lawyers–particularly East Coast big firm lawyers–think litigation is a game of keep-away chess.

They don’t want to cooperate in discovery because, how can they win the case in discovery by turning over the evidence? Much better to resist providing information that should be included in mandatory disclosures.

Better yet, object to every single interrogatory and request for production. Yes, objecting to the request for production asking for your trial exhibits looks stupid and screams insecurity. But that’s how many lawyers under the age of 60 were trained. Tell them it’s stupid and they look at you like you said the Earth is flat.

It doesn’t matter if the amendment is enacted or not. The gamesmanship in litigation has become too ingrained in the profession to stop. And it slowly gets worse.

It doesn’t help that at least one side’s attorneys have a financial interest in gamesmanship, since it increases attorney fees.

I recently came across this Above the Law post by Michael McDonald about the shrinking legal market.

McDonald points out that there are 35% (3,500) fewer publicly traded companies in the U.S. than there were in 1997. This hurts the legal economy because there are fewer potential clients.

All but the mega-firms suffer:

The result is that it’s probably harder today to be a mid-sized or moderately large law firm than it used to be. And that trend is unlikely to reverse. Given that trend, it’s also likely that the legal industry will become more bifurcated over time – a hundred or so very large law firms and many small law firms, with few midsized firms in the middle. That structure has important implications for the profitability of a legal career in the future.

I strongly suspect that this trend has hurt Mississippi law firms. It’s yet another factor (of many) that makes it increasingly difficult to sustain a law firm in the state.

I recently came across this Above the Law post by Michael McDonald about the shrinking legal market.

McDonald points out that there are 35% (3,500) fewer publicly traded companies in the U.S. than there were in 1997. This hurts the legal economy because there are fewer potential clients.

All but the mega-firms suffer:

The result is that it’s probably harder today to be a mid-sized or moderately large law firm than it used to be. And that trend is unlikely to reverse. Given that trend, it’s also likely that the legal industry will become more bifurcated over time – a hundred or so very large law firms and many small law firms, with few midsized firms in the middle. That structure has important implications for the profitability of a legal career in the future.

I strongly suspect that this trend has hurt Mississippi law firms. It’s yet another factor (of many) that makes it increasingly difficult to sustain a law firm in the state.

I recently came across this Above the Law post by Michael McDonald about the shrinking legal market.

McDonald points out that there are 35% (3,500) fewer publicly traded companies in the U.S. than there were in 1997. This hurts the legal economy because there are fewer potential clients.

All but the mega-firms suffer:

The result is that it’s probably harder today to be a mid-sized or moderately large law firm than it used to be. And that trend is unlikely to reverse. Given that trend, it’s also likely that the legal industry will become more bifurcated over time – a hundred or so very large law firms and many small law firms, with few midsized firms in the middle. That structure has important implications for the profitability of a legal career in the future.

I strongly suspect that this trend has hurt Mississippi law firms. It’s yet another factor (of many) that makes it increasingly difficult to sustain a law firm in the state.

I recently came across this Above the Law post by Michael McDonald about the shrinking legal market.

McDonald points out that there are 35% (3,500) fewer publicly traded companies in the U.S. than there were in 1997. This hurts the legal economy because there are fewer potential clients.

All but the mega-firms suffer:

The result is that it’s probably harder today to be a mid-sized or moderately large law firm than it used to be. And that trend is unlikely to reverse. Given that trend, it’s also likely that the legal industry will become more bifurcated over time – a hundred or so very large law firms and many small law firms, with few midsized firms in the middle. That structure has important implications for the profitability of a legal career in the future.

I strongly suspect that this trend has hurt Mississippi law firms. It’s yet another factor (of many) that makes it increasingly difficult to sustain a law firm in the state.

The NE Daily Journal reports that the plan of three Tupelo men to rob and kidnap Circuit Judge Paul Funderburk was foiled before it got out of the Huddle House:

Three Lee County men were arrested Monday after law enforcement uncovered a plot to kidnap Circuit Court Judge Paul Funderburk.

According to Lee County Sheriff Jim Johnson, a concerned citizen overheard the men talking at a Tupelo restaurant Sunday.

“During the conversation, they were talking about robbing a home owned by Judge Funderburk,” Johnson said. “During the conversation, they said if the judge was at home, they would kidnap him as well.

“The concerned citizen notified authorities. We were able to get surveillance video from the restaurant and interviewed folks to determine the information was credible.”

The quick investigation ended when two suspects were arrested at a local motel. The third man was arrested at a Tupelo residence.

My Take:

Cobra Kai dojo instructor James Dutschke thinks those guys are stupid.

How could that plan go wrong? From planning the heist in a restaurant to targeting a public servant, these guys were not on their criminal game.

Home invasions in Mississippi often don’t go well for the invaders. There seems to be a big home field advantage for the homeowner, who typically comes out blasting and is a better shot than a dope fiend.

I’m going to go out on a limb and predict that if they had tried this and Judge Funderburk was home, they would not have kidnapped him. A more likely scenario: a couple of dead bad guys with the third “getting away” for about, oh, half an hour.

This may come as news to the criminal element, but most judges who send people to prison take personal security seriously. It’s not going to be much different that trying to rob a cop. You probably have a better odds of pulling off the heist if you just stick up the restaurant you are planning this in.

Here is what I predict these guys will hear a lot of as they adjust to life behind bars: “man, you guys sure are dumb.”

Judge Primeaux had this post last week titled “What You Get to Decide as Attorney.” The post examined who gets to decide what in litigation: the lawyer, or the client.

This is an issue for all lawyers, but particularly defense lawyers, as Anderson pointed out in a comment:

This can get particularly annoying when the client is a company that employs its own lawyers (or outside counsel) to ride herd on one’s handling of a case. Lawyers from out of state whose name won’t be on the pleadings can get downright cocky about what a Rambo one ought to be in a court they’ll never set foot in.

Bingo. Here’s a story.

A decade or so ago I was trying a defense case with several other lawyers. Riding herd over us was an in-house attorney from New York. Apparently, they practice law differently in New York. Professionalism is not in vogue.

The in-house lawyer insisted that I ‘go after’ plaintiff’s counsel by personally attacking him. I refused. He got mad. It got heated. I was unwilling to, as Judge Primeaux states, trade my reputation for a fee.

In the end, we won the trial. The in-house lawyer even complemented my cross examinations–even though it wasn’t how they do it in New York.

So did that company ever hire me again? No, they didn’t. Coincidence? Who knows.

Plaintiff lawyers are quick to criticize defense lawyers’ Rambo discovery tactics that–likely–are being driven by the client. “I would never represent a client who tries to tell me how to do my job,” they say. But that’s much easier for a plaintiff lawyer to say who works on one-off cases where the clients almost never repeat.

But the analysis on the defense side can me much tougher:

• What about for a defense lawyer who does a lot of work for the client?
• What if the client represents a big chunk of the firm’s business?
• What if several lawyers and even more support staff basically work entirely for that one client?
• What if refusing to do what that client says may jeopardize the client keeping the business with the firm?
• What if losing the client would lead the firm to having to lay-off several associates and support staff?
• What if families who are counting on the lawyer maintaining a book of business will suffer if the firm loses the client?

How do you weigh it then? It’s a tough decision no matter what.

This is another reason why attorneys should be less inclined to criticize opposing counsel. We aren’t in opposing counsel’s shoes. We don’t know what’s going on. We don’t know that sometimes what the lawyer is doing is client driven–and the lawyer hates it.

And we certainly don’t know what it’s like to be in that lawyer’s shoes. So maybe we should ease up on the criticism of fellow attorneys. It’s a tough profession.

I’m not sure what the worst thing about litigation is: losing or (some) clients. A great client makes practicing a pleasure. A bad client can ruin your life for as long as the case is pending. Dealing with these issues is a tough balancing act. And I don’t have the solution.