After reading Sleazy in Seattle (click to access), please comment here to each of the following questions. These questions are taken directly from the article and your answers should refer to the arti

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After reading


Sleazy in Seattle



(click to access

), please comment here to each of the following questions. These questions are taken directly from the article and your answers should refer to the article and to your text reading as appropriate.

  1. How does the behavior of the attorneys at Bogle and Gates raise concerns about legal ethics in this case?

    Include specific examples from the discovery process

    .
  2. What do you think of the attorney’s duty to “zealously advocate” for their clients in this case? Do you agree with the experts that the behavior of the law firm was appropriate and responsible, or do you agree with Washington State Supreme Court’s interpretation, and why?
  3. Reflect on your course UCOR 2910: “Ethical Reasoning in Business,” or any other ethics course you took in the UCOR. Depending on when you took it, and who your professor was, you may have used different terms or a different framework to think about ethical values. But you likely can at least appreciate these five values:


    • Autonomy

      : a person’s ability to govern herself and to order her own life (as the ethicists say, to be an ‘end in herself’) implies that she must not be used as a means to an end that she did not choose (most closely associated with deontology)

    • Non-pain/Pleasure

      : a person’s capacity to experience pain or pleasure implies that I must not cause him pain unnecessarily (most closely associated with utilitarianism)

    • Equality

      : a person must not be regarded or treated as inferior to or superior to other persons

    • Cooperation

      : when people cooperate, they form trust, and living in a high- trust environment makes possible many of the things we associate with a good life (most closely associated with contractarianism)

    • Character Excellence

      : I should want to be the kind of person who enjoys doing ethical things and doesn’t enjoy doing unethical things. If so, I am a person with an excellent or virtuous character, and this is widely regarded as a source of personal well-being. However, by doing unethical things, I may harm or corrupt my own character (most closely associated with virtue ethics)

Which values ought you to focus on if you were a manager at Fisons, the pharmaceutical company in the case? What course of action would you have taken if you were the manager and you were aware of the case specifics regarding drug testing and what the company knew about the effects of taking the drug?

After reading Sleazy in Seattle (click to access), please comment here to each of the following questions. These questions are taken directly from the article and your answers should refer to the arti
1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 1/27 D S le a z y In S e a ttle by Stuart Taylor, Jr isco very is th e b rea d a n d b u tter o f m o st b ig -firm litig a to rs. B u t th e m o st im p o rta n t a n d eth ica lly sen sitive d ecisio n s th e m a k e-ch o o sin g w h en a n d h o w to a vo id d isclo sin g d a m m in g evid en ce to a d versa ries-a re a lm o st a lw a ys veiled in secrecy. N o w a n a n o n ym o u s w h istle-b lo w er in a ca se n ea r S ea ttle h a s h elp ed g ive a s a revea lin g g lim p se in to h o w litig a to rs reco n cile th eir d u ties to b e zea lo u s a d vo ca tes w ith th eir d u ties n o t to b e w h o res. It’s n o t a p retty p ictu re a n d it in vo lves o n e o f S ea ttle’s la rg est a n d m o st p restig io u s firm s. The covered-up corporate docum ent that the w histle-blow er leaked in M arch 1990 led to an agreem ent this January by Seattle’s 200-law yer B ogle & G ates and its client Fisons C orp. to pay $325000 in sactions for discovery abuse, one of the largest such aw ards ever. B y m isleading its adversaries to avoid producing dam ning docum ents in its client’s files, B ogle provided a textbox exam ple of the need for discovery reform s even m ore far-reaching than those that w ere adopted last year by the federal judiciary-reform s that are still under attack in C ongress. (O n w hich m ore below .) W hat prom pted the settlem ent w as a unanim ous W ashington Suprem e C ourt decision last Septem ber 16, and the prospect of an evidentiary hearing on rem and that w ould have m ade B ogle’s conduct look even w orse than it looks in the court’s sternly w orded opinion. 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 2/27 The seven justices held that B ogle & G ates and its client, a B ritish-ow ned pharm aceutical com pany w ith U .S. headquarters near R ochester, had used “m isleading” discovery responses to hide tw o I “sm oking gun docum ents” from law yers for a 3-year-old girl w ho suffered perm anent brain dam age as a result of taking a i Fisons asthm a drug in 1986, as w ell as from law yers for the girl’s pediatrician, w ho had filed a cross-claim against Fisons. Since the decision, B ogle has been forced to adm it for the first tim e that it had had the sm oking gun docum ents since l 1987 and had advised Fisons to w ithhold them -w hile at the sam e tim e, in the suprem e court’s w ords, m aking statem ents to opposing counsel “that all relevant docum ents had been produced.” These statem ents w ere accom panied by artfully w orded discovery responses that B ogle later claim ed (in a rationale rejected by the court) should have put its adversaries on notice that relevant docum ents w ould be produced only if found in a particular : Fisons product file W hat m akes the case im portant is not so m uch that one big law firm w as capable of engaging in conduct that stunk so badly but that it w as able to find 14 leading liti gation experts to sw ear that this conduct sm elled just fine to them , and to persuade a special m aster and tw o superior court judges that this is the w ay the adversary system is supposed to w ork. It’s also rem arkable that the W ashington State B ar A ssociation is not, it con firm s, even investigating the conduct of G uy M ichelson and K evin B aum gardner, the tw o B ogle partners w ho stand accused by opposing counsel of having m ade representations (under oath, in one case) to their representation (under oath in one case) to their adversaries and the superior court that w ere “deliberately or recklessly false and intended to deceive.” The court record bears out the accusations. The expert flotilla included $500-an-hour Yale Law professor 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 3/27 G eoffrey H azard Jr., perhaps the nation’s m ost prom inent legal ethics expert [see “H azardous D uty Pays,” page 60], and leading W ashington State litigators including ten fellow s of the prestigious A m erican C ollege of Trial Law yers, of w hom tw o are also past presidents of the W ashington State B ar A ssociation. A ll 14 experts said that B ogle’s conduct had been nondeceptive and ethically proper; m ost suggested that such conduct w as standard operating procedure in the adversary system ; and three suggested that B ogle’s conduct had been required by the law yers’ “ethical obligation to zealously represent their client,” in the w ords of Payton Sm ith, chairm an of the litigation departm ent of D avis W right Trem aine, Seattle’s largest law firm . You be the judge of w hether B ogle’s conduct w as honest, w hether such practices are the norm , and-if they are- w hether they ought to be. B ogle and Fisons w ere initially exonerated of discovery abuse by the special m aster overseeing discovery in the case and by tw o successive superior court judges, including Judge Stuart French of Snohom ish C ounty Superior C ourt (north of Seattle), w ho presided over the 1990 trial of the underlying tort case. Judge French rejected a m otion for sanctions and signed an opinion (drafted by law yers for B ogle and Fisons) finding that all of the discovery responses had been “reasonable and proper,” and that “the conduct of Fisons and its counsel… w as consistent w ith the custom ary and accepted litigation practices in the bar of this com m unity and this state” C ustom ery or not, “the conduct in this case sinks. “in the w ords of Stephen Saltzburg, a G eorge W ashington U niversity law professor w ho pressed the pediatrician’s claim that Fisons and B ogle should be sanctioned and w on it on appeal. “The conduct of Fisons and B ogle explains w hy so m any ordinary people have losaith in the litigation system and the adversary 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 4/27 process, and believe that law yers are untrust w orthy,” as Saltzburg argued in one legal brief. B U SIN E SS A S U SU A L? B ut B ogle’s experts m ay have been right, I fear, insofar as they suggested that m any and perhaps even m ost litigators engage under cover of darkness in the kind of conduct that is fortuitously brought to light in this case. If so, then the discovery process has been clogged by a culture of evasion and deceit that accounts for m uch of its grotesque w astefulness, and the adversary system has been perverted from an engine of truth into a license for law yerly lies. A sked for B ogle’s com m ent on the case, R ichard W allis, the m anaging partner, says: “It is our view that the Suprem e C ourt’s decision is a ‘course correction’ for the entire legal profession… B ogle & G ates-like other firm s in this state-w ill now pursue discovery on behalf of our clients in a m anner consistent w ith this ruling. It is our position that B ogle & G ates w as, in this case, operating in good faith w ithin the standards of practice follow ed by attorneys in this state at the tim e these discovery responses w ere m ade.” W allis stresses a speech last N ovem ber in w hich W ashington Suprem e C ourt justice R obert U tter characterized the decision as “revolutionary” and said that “in fairness, it should be noted that defense counsel… did not have the benefit of advance notice about the court’s expansive interpretation” of counsel’s obligations in discovery. N o such w ords in m itigation of B ogle’s conduct appear in the court’s opinion. A sked for Fisons’s com m ent, associate general counsel B arry B erger said: “I have a high personal and professional regard for B ogle & G ates, but as the docum ents w e and they filed in the case indicate, w e essentially relied on advice of counsel… I 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 5/27 think B ogle & G ates gave the advice in good faith and it w as relied on in good faith.” B ogle and Fisons blam e Joel C unningham of Seattle’s W illiam s, K astner & G ibbs (w ho brought the pediatrician’s cross-claim against Fisons) and the injured child’s law yers (including Paul Lu-vera, the top plaintiffs law yer in the state) for the decisions by B ogle and Fisons no to hand over the sm oking gun docum ents. C unningham “had only him self to blam e,” W illiam H elsell of Seattle’s H elsell, Fetterm an, M artin, Todd & H okanson, w ho represented B ogle & G ates and Fisons in the sanctions proceeding, told the state suprem e court. H elsell, a m uch- adm ired leader of the Seattle bar and B ogle’s litigation experts claim ed that C unningham and the injured child’s law yers failed to ask the right questions or to press their adversaries hard enough for responsive answ ers. D id they? R ead on TH E U N D E R LYIN G FA C TS In January 1986, 3-year-old Jennifer Pollock, a child w ith m ultiple health problem s, suffered seizures and perm anent brain dam age as a result of being treated w ith Fison’s Som ophyllin O ral Liquid for her serve lung disease (including asthm a) at a tim e w hen she also had a viral infection. The product’s m ain active ingredient is a generic drug called theophylline. The cause of Jennifer’s brian dam ages w as (the litigation established) that the theophylline in her blood soared to toxic levels as a result of ther viral infection. Jennifer’s parent filed a products liability suit against Fisons along w ith a m alpractice suit against D r. Jam es K licpera, the E verett, W ashington, Pediatrician w ho had prescribed the drug. H e and his insurer cross-claim ed against Fisons, alleging that the com pany had know n, and had failed to w arn 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 6/27 him , that theophylline posed a serious risk of nervous system dam age w hen used to treat children w ith viral infections. Fisons defended on the grounds that (am ong other things) it had disclosed all know n risks, and that D r. K licpera had caused Jennifer’s injuries by negligently failing to m onitor her theophylline levels and prescribing an overdose. In O ctober 1986 C unningham , D r. K licpera’s counsel, served Fisons w ith four brief requests for production of docum ents, including this: “Produce genuine copies of any letters sent by your com pany to physicians concerning theophylline toxicity in children.” SM O K IN G G U N N O . 1 This fit one of the sm oking gun docum ents like a glove: a June 1981 letter sent by Fisons’s m anager of m arketing and m edical com m unications, C edric G rigg, to a select group of 2,000 physicians around the country (not inducing D r. K licpera). A ddressed “D ear D octor,” and entitled “R e: Theophylline and V iral Infections,” the letter w arned that it “can be a capricious drug,” G rigg stressed a published study show ing “life- threatening theophylline toxicity w hen pediatric asthm atics on previously w ell tolerated doses of heophylline contract viral infections.” The letter, w hich w as approved by high-level Fisons executives, prom oted another Fisons product for treatm ent of asthm a, called Intal, as safer than com peting drugs based on theophylline. The docum ent certainly sounded like it cam e w ithin the discovery request. A nd here is how Fisons’s N ovem ber 1986 discovery response, prepared by B ogle law yers, read: “Such letters, if any, regarding Som ophyllin O ral Liquid w ill be produced at a reasonable tim e and place convenient to Fisons and its counsel of record.” (E m phasis in original.) So you m ight think the letter w ould be produced. 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 7/27 B ut in fact, Fisons and B ogle-w hich says it first learned in M arch 1987 about the 1981 G rigg sm oking gun letter-decided not to produce it, then or ever. A nd later, they argued that they had acted properly because they had had no obligation to produce it. (See if you can guess the Fisons-B ogle rationale; then look under the “R ationales for C oncealm ent” subhead below to see if you w ere right.) C unningham , the pediatrician’s law yer, says (as did Jennifer Pollock’s law yers) that Fisons and B ogle m isled him into believing that there w ere no docum ents responsive to his request. “I expected that I w ould get an honest answ er to an honest question,” he recalls. B ut he did not get the 1981 G rigg letter until M arch 15, 1990-som e 40 m onths after his request, and three years after B ogle got the letter-w hen the anonym ous w histle-blow er sent it to C unningham via U .S. m ail. B y that tim e, B ogle and Fisons had parried m any m ore discovery requests, and D r. K licpera had settled the brain-dam aged child’s m alpractice suit for w hat am ounted (after various contingencies) to a $500,000 paym ent by his insurer. The leak of the 1981 G rigg letter prom pted the court- appointed special m aster in charge of discovery in the case, Peter B yrnes, to dem and on M arch 28, 1990, that B ogle and Fisons stop playing gam es and hand over-the next day-any other theophylline-related docum ents of w hich they had copies at hand. (B yrnes, a form er B ogle & G ates partner, w as chosen w ith C unningham ’s assent.) B yrnes said that Fisons’s “nonresponse” to C unningham ’s request w as “troubling,” but that “the plaintiff w as not w itho… D iscovery is the bread and butter of m ost big-firm litigators. B ut the m ost im portant and ethically sensitive decisions the m ake-choosing w hen and how to avoid disclosing dam m ing evidence to adversaries-are alm ost alw ays veiled in secrecy. 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 8/27 N ow an anonym ous w histle-blow er in a case near Seattle has helped give as a revealing glim pse into how litigators reconcile their duties to be zealous advocates w ith their duties not to be w hores. It’s not a pretty picture and it involves one of Seattle’s largest and m ost prestigious firm s. The covered-up corporate docum ent that the w histle-blow er leaked in M arch 1990 led to an agreem ent this January by Seattle’s 200-law yer B ogle & G ates and its client Fisons C orp. to pay $325000 in sactions for discovery abuse, one of the largest such aw ards ever. B y m isleading its adversaries to avoid producing dam ning docum ents in its client’s files, B ogle provided a textbox exam ple of the need for discovery reform s even m ore far-reaching than those that w ere adopted last year by the federal judiciary-reform s that are still under attack in C ongress. (O n w hich m ore below .) W hat prom pted the settlem ent w as a unanim ous W ashington Suprem e C ourt decision last Septem ber 16, and the prospect of an evidentiary hearing on rem and that w ould have m ade B ogle’s conduct look even w orse than it looks in the court’s sternly w orded opinion. The seven justices held that B ogle & G ates and its client, a B ritish-ow ned pharm aceutical com pany w ith U .S. headquarters near R ochester, had used “m isleading” discovery responses to hide tw o I “sm oking gun docum ents” from law yers for a 3-year-old girl w ho suffered perm anent brain dam age as a result of taking a i Fisons asthm a drug in 1986, as w ell as from law yers for the girl’s pediatrician, w ho had filed a cross-claim against Fisons. Since the decision, B ogle has been forced to adm it for the first tim e that it had had the sm oking gun docum ents since l 1987 and had advised Fisons to w ithhold them -w hile at the sam e tim e, in the suprem e court’s w ords, m aking statem ents to opposing counsel “that all relevant docum ents had been produced.” These statem ents w ere accom panied by artfully 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 9/27 w orded discovery responses that B ogle later claim ed (in a rationale rejected by the court) should have put its adversaries on notice that relevant docum ents w ould be produced only if found in a particular : Fisons product file W hat m akes the case im portant is not so m uch that one big law firm w as capable of engaging in conduct that stunk so badly but that it w as able to find 14 leading liti gation experts to sw ear that this conduct sm elled just fine to them , and to persuade a special m aster and tw o superior court judges that this is the w ay the adversary system is supposed to w ork. It’s also rem arkable that the W ashington State B ar A ssociation is not, it con firm s, even investigating the conduct of G uy M ichelson and K evin B aum gardner, the tw o B ogle partners w ho stand accused by opposing counsel of having m ade representations (under oath, in one case) to their representation (under oath in one case) to their adversaries and the superior court that w ere “deliberately or recklessly false and intended to deceive.” The court record bears out the accusations. The expert flotilla included $500-an-hour Yale Law professor G eoffrey H azard Jr., perhaps the nation’s m ost prom inent legal ethics expert [see “H azardous D uty Pays,” page 60], and leading W ashington State litigators including ten fellow s of the prestigious A m erican C ollege of Trial Law yers, of w hom tw o are also past presidents of the W ashington State B ar A ssociation. A ll 14 experts said that B ogle’s conduct had been nondeceptive and ethically proper; m ost suggested that such conduct w as standard operating procedure in the adversary system ; and three suggested that B ogle’s conduct had been required by the law yers’ “ethical obligation to zealously represent their client,” in the w ords of Payton Sm ith, chairm an of the litigation departm ent of D avis W right Trem aine, Seattle’s largest law firm . 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 10/27 You be the judge of w hether B ogle’s conduct w as honest, w hether such practices are the norm , and-if they are- w hether they ought to be. B ogle and Fisons w ere initially exonerated of discovery abuse by the special m aster overseeing discovery in the case and by tw o successive superior court judges, including Judge Stuart French of Snohom ish C ounty Superior C ourt (north of Seattle), w ho presided over the 1990 trial of the underlying tort case. Judge French rejected a m otion for sanctions and signed an opinion (drafted by law yers for B ogle and Fisons) finding that all of the discovery responses had been “reasonable and proper,” and that “the conduct of Fisons and its counsel… w as consistent w ith the custom ary and accepted litigation practices in the bar of this com m unity and this state” C ustom ery or not, “the conduct in this case sinks. “in the w ords of Stephen Saltzburg, a G eorge W ashington U niversity law professor w ho pressed the pediatrician’s claim that Fisons and B ogle should be sanctioned and w on it on appeal. “The conduct of Fisons and B ogle explains w hy so m any ordinary people have losaith in the litigation system and the adversary process, and believe that law yers are untrust w orthy,” as Saltzburg argued in one legal brief. B U S IN E S S A S U S U A L ? B ut B ogle’s experts m ay have been right, I fear, insofar as they suggested that m any and perhaps even m ost litigators engage under cover of darkness in the kind of conduct that is fortuitously brought to light in this case. If so, then the discovery process has been clogged by a culture of evasion and deceit that accounts for m uch of its grotesque w astefulness, and the adversary system has been perverted from an engine of truth into a license for law yerly lies. A sked for B ogle’s com m ent on the case, R ichard W allis, the m anaging partner, says: “It is our view that the Suprem e 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 11/27 C ourt’s decision is a ‘course correction’ for the entire legal profession… B ogle & G ates-like other firm s in this state-w ill now pursue discovery on behalf of our clients in a m anner consistent w ith this ruling. It is our position that B ogle & G ates w as, in this case, operating in good faith w ithin the standards of practice follow ed by attorneys in this state at the tim e these discovery responses w ere m ade.” W allis stresses a speech last N ovem ber in w hich W ashington Suprem e C ourt justice R obert U tter characterized the decision as “revolutionary” and said that “in fairness, it should be noted that defense counsel… did not have the benefit of advance notice about the court’s expansive interpretation” of counsel’s obligations in discovery. N o such w ords in m itigation of B ogle’s conduct appear in the court’s opinion. A sked for Fisons’s com m ent, associate general counsel B arry B erger said: “I have a high personal and professional regard for B ogle & G ates, but as the docum ents w e and they filed in the case indicate, w e essentially relied on advice of counsel… I think B ogle & G ates gave the advice in good faith and it w as relied on in good faith.” B ogle and Fisons blam e Joel C unningham of Seattle’s W illiam s, K astner & G ibbs (w ho brought the pediatrician’s cross-claim against Fisons) and the injured child’s law yers (including Paul Lu-vera, the top plaintiffs law yer in the state) for the decisions by B ogle and Fisons no to hand over the sm oking gun docum ents. C unningham “had only him self to blam e,” W illiam H elsell of Seattle’s H elsell, Fetterm an, M artin, Todd & H okanson, w ho represented B ogle & G ates and Fisons in the sanctions proceeding, told the state suprem e court. H elsell, a m uch- adm ired leader of the Seattle bar and B ogle’s litigation experts claim ed that C unningham and the injured child’s law yers 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 12/27 failed to ask the right questions or to press their adversaries hard enough for responsive answ ers. D id they? R ead on T H E U N D E R L Y IN G F A C T S In January 1986, 3-year-old Jennifer Pollock, a child w ith m ultiple health problem s, suffered seizures and perm anent brain dam age as a result of being treated w ith Fison’s Som ophyllin O ral Liquid for her serve lung disease (including asthm a) at a tim e w hen she also had a viral infection. The product’s m ain active ingredient is a generic drug called theophylline. The cause of Jennifer’s brian dam ages w as (the litigation established) that the theophylline in her blood soared to toxic levels as a result of ther viral infection. Jennifer’s parent filed a products liability suit against Fisons along w ith a m alpractice suit against D r. Jam es K licpera, the E verett, W ashington, Pediatrician w ho had prescribed the drug. H e and his insurer cross-claim ed against Fisons, alleging that the com pany had know n, and had failed to w arn him , that theophylline posed a serious risk of nervous system dam age w hen used to treat children w ith viral infections. Fisons defended on the grounds that (am ong other things) it had disclosed all know n risks, and that D r. K licpera had caused Jennifer’s injuries by negligently failing to m onitor her theophylline levels and prescribing an overdose. In O ctober 1986 C unningham , D r. K licpera’s counsel, served Fisons w ith four brief requests for production of docum ents, including this: “Produce genuine copies of any letters sent by your com pany to physicians concerning theophylline toxicity in children.” S M O K IN G G U N N O . 1 This fit one of the sm oking gun docum ents like a glove: a June 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 13/27 1981 letter sent by Fisons’s m anager of m arketing and m edical com m unications, C edric G rigg, to a select group of 2,000 physicians around the country (not inducing D r. K licpera). A ddressed “D ear D octor,” and entitled “R e: Theophylline and V iral Infections,” the letter w arned that it “can be a capricious drug,” G rigg stressed a published study show ing “life- threatening theophylline toxicity w hen pediatric asthm atics on previously w ell tolerated doses of heophylline contract viral infections.” The letter, w hich w as approved by high-level Fisons executives, prom oted another Fisons product for treatm ent of asthm a, called Intal, as safer than com peting drugs based on theophylline. The docum ent certainly sounded like it cam e w ithin the discovery request. A nd here is how Fisons’s N ovem ber 1986 discovery response, prepared by B ogle law yers, read: “Such letters, if any, regarding Som ophyllin O ral Liquid w ill be produced at a reasonable tim e and place convenient to Fisons and its counsel of record.” (E m phasis in original.) So you m ight think the letter w ould be produced. B ut in fact, Fisons and B ogle-w hich says it first learned in M arch 1987 about the 1981 G rigg sm oking gun letter-decided not to produce it, then or ever. A nd later, they argued that they had acted properly because they had had no obligation to produce it. (See if you can guess the Fisons-B ogle rationale; then look under the “R ationales for C oncealm ent” subhead below to see if you w ere right.) C unningham , the pediatrician’s law yer, says (as did Jennifer Pollock’s law yers) that Fisons and B ogle m isled him into believing that there w ere no docum ents responsive to his request. “I expected that I w ould get an honest answ er to an honest question,” he recalls. B ut he did not get the 1981 G rigg letter until M arch 15, 1990-som e 40 m onths after his request, and 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 14/27 three years after B ogle got the letter-w hen the anonym ous w histle-blow er sent it to C unningham via U .S. m ail. B y that tim e, B ogle and Fisons had parried m any m ore discovery requests, and D r. K licpera had settled the brain-dam aged child’s m alpractice suit for w hat am ounted (after various contingencies) to a $500,000 paym ent by his insurer. The leak of the 1981 G rigg letter prom pted the court- appointed special m aster in charge of discovery in the case, Peter B yrnes, to dem and on M arch 28, 1990, that B ogle and Fisons stop playing gam es and hand over-the next day-any other theophylline-related docum ents of w hich they had copies at hand. (B yrnes, a form er B ogle & G ates partner, w as chosen w ith C unningham ’s assent.) B yrnes said that Fisons’s “nonresponse” to C unningham ’s request w as “troubling,” but that “the plaintiff w as not w ithout fault” in failing to clarify the response. H e denied a m otion for discovery sanctions against B ogle and Fisons. B ut, the special m aster said to the B ogle law yers in a telephone conference, “m y hunch is that you have already pulled them out… and they’ve already been assem bled som ew here.” H is hunch w as right. B ogle law yers had copies of the tw o sm oking guns and other theophylline-related docum ents in Seattle. S M O K IN G G U N N O . 2 A second docum ent, produced at the sam e tim e, w as a July 1985 m em o from the sam e C edric G rigg to a Fisons vice- president, w hich obliterated w hatever rem ained of Fisons’s failure-to-w arn defense. The m em o began: “A n alarm ing trend seem s to be surfacing in the m edical literature and as a m anufacturer of theophylline 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 15/27 products w e need to be aw are of it… [There has been] a dram atic increase in reports of serious toxicity to theophylline in 1985 m edical journals.” The m em o w ent on to state that m any doctors w ho prescribe theophylline prod- prom otional letters as ” ‘D ear D octor’ letters” in internal com m unications. “D U C K IN G A N D D O D G IN G ” B ogle’s 14 experts convinced Judge French of the legitim acy of the B ogle-Fisons rationales. A nd, during the January 1991 oral argum ent in the trial court on the discovery abuse issue, W illiam H elsell, counsel for Fisons and B ogle, m ade a virtue of such concealm ent by asserting that it w as required by principles of legal ethics: “A ll experienced trial law yers do som e ducking and dodging in connection w ith discovery. A nd w hy do they do that? W e do it because w e have a duty to our client… w ithin the bounds of honesty, to not give the opposition one piece of paper that they don’t clearly and specifically ask for.” O f course, in this case B ogle’s adversaries did clearly and specifically ask for the 1981 sm oking gun docum ent, and arguably the 1985 docum ent as w ell-or at least their requests w ould be read that w ay by anyone w hose com prehension of E nglish had not been w arped by years of exposure to the bizarre herm eneutics of discovery practice. You can judge from the excerpts in the box below w hether B ogle law yers engaged only in perm issible “ducking and dodging”-or w hether their statem ents w ere, in Saltzburg’s w ords, “deliberately or recklessly false and intended to deceive.” T H E S U P R E M E C O U R T R U L E S The W ashington Suprem e C ourt w ould have no part of B ogle’s 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 16/27 argum ents on the discovery issues, how ever. In its Septem ber 16 decision, the court upheld the $1.1 m illion aw ard to D r. K licpera for injury to reputation as w ell as the fee aw ard, though reversing the pain and suffering aw ard. M ore significantly, it also reversed, as an abuse of discretion, Judge French’s refusal to aw ard sanctions under the state’s civil rule regarding discovery abuse, w hich the suprem e court w as construing for the first tim e. “The drug com pany avoided production of these theophylline- related m aterials, and avoided identifying the m anager of m edical com m unications [C edric G rigg] as a person w ith inform ation about the dangers of theophylline, by giving evasive or m isleading responses to interrogatories and requests for production,” the court held. It refused to accept the if-it-isn’t-in-the-right-file-under-the- right-nam e-w e-w on’t produce-it ploy, noting that none of the parties had ever specified that the discovery w ould be lim ited to docum ents in the “Som ophyllin O ral Liquid files,” or that docum ents concerning theophylline risks w ould be w ithheld if they w ere filed elsew here or did not contain the w ords “Som ophyllin O ral Liquid.” N or had any party ever suggested that that w as w hat Fisons m eant w hen it undertook to produce only responsive docum ents “regarding Som ophyllin O ral Liquid,” the court held. The court also cut through the tw isted argum ent that the G rigg docum ents regarding the dangers of theophylline-based drugs w ere not docum ents “regarding Som ophyllin O ral Liquid” because they w ere not in that product’s file, saying that “a docum ent that w arned of the serious dangers of the prim ary ingredient of Som ophyllin O ral Liquid is a docum ent regarding Som ophyllin O ral Liquid.” A fter all, the court pointed out, Fisons m arketed this and its three other Som ophyllin products as brand-nam e em bodim ents of theophylline. 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 17/27 It added that, in light of the elaborate series of pretexts offered by Fisons and B ogle for their acts of concealm ent, “it appears clear that no conceivable discover request could have been m ade by the doctor that w ould have uncovered the relevant docum ents. The objections did not specify that certain docum ents w ere not being produced. Instead, the general objections w ere follow ed by a prom ise to produce requested docum ents. These responses did not com ply w ith either the spirit or the letter of the discovery rules.” C hief Justice Jam es A ndersen’s opinion also stressed that “a spirit of cooperation and forthrightness during the discover process is necessary for the proper functioning of m odern trials.” H e said that “conduct is to be m easured against the spiructs “m ay not be aw are of this alarm ing increase in adverse reactions such as seizures, perm anent brain dam age, and deaths,” and that the standard dosage level endorsed by (am ong others) Fisons w as “a significant ‘m istake.” G rigg concluded: “This ‘epidem ic’ of theophylline toxicity [w ould justify a] corporate decision to cease prom otional activities w ith our theophylline line of products.” This m em o, and a num ber of other docum ents containing dire w arnings by G rigg about theophylline, w ould (as the state suprem e court held) have com e to light m uch earlier if B ogle and Fisons had responded candidly to any one of several discovery requests m ade by the plaintiffs. U ltim ately, Fisons bought its w ay out of the law suit by the injured child and her fam ily for a w hopping $6.9 m illion in A pril 1990, less than a m onth after it had to cough up the sm oking gun docum ents. This am ount set a local record. It also constituted an adm ission by Fisons and B ogle of the devastating im pact that the previously w ithheld docum ents w ould have had at trial. B ut D r. K licpera, furious at the cover-up of such vital evidence, pressed on w ith his cross-claim , seeking sanctions 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 18/27 for discovery abuse and asserting that he w ould not have agreed to his ow n settlem ent w ith the injured child’s fam ily had he know n of the sm oking gun docum ents. In July 1990, after a m onthlong trial, a jury decided for the doctor on m ost of his failure-to-w arn claim s. The jury displayed its disgust w ith Fisons and B ogle by aw arding D r. K licpera-w hose evidence of actual dam ages w as pretty thin, and w hom the jury found to be 3.3 percent contributorily negligent-a generous $3.3 m illion. This included $1.1 m illion for injury to his professional reputation and $2.1 m illion for pain and suffering. (Punitive dam ages are not recoverable in the state.) Judge French com pounded the blow by hitting Fisons w ith a $450,000 attorneys’ fees aw ard to D r. K licpera, although he rejected the doctor’s discovery abuse m otion. It w as this case that landed before the state suprem e court and prom pted its decision against B ogle and its client. R A T IO N A L E S F O R C O N C E A L M E N T In defending against these claim s, Fisons and B ogle & G ates insisted that their nondisclosure of the sm oking gun docum ents had been proper. Their rationale as to the June 1981 sm oking gun letter-w hich w as indisputably covered by C unningham ’s O ctober 1986 request for production-w as that Fisons’s inclusion of the lim iting phrase “regarding Som ophyllin O ral Liquid” in its N ovem ber 1986 response had im plicitly served notice on C unningham that Fisons objected to producing docum ents responsive to his request, no m atter how relevant, unless they w ere kept in its “Som ophyllin O ral Liquid files.” Fisons and B ogle also seem ed to interpret “regarding Som ophyllin O ral Liquid” as excluding any docum ents (w herever filed) regarding the drug’s prim ary ingredient 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 19/27 unless the brand nam e w as cited. A ll copies of the tw o sm oking guns w ere (Fisons has claim ed, w ithout contradiction so far) in the files for one of its other drugs, Intal, and those docum ents did not m ention Som ophyllin O ral Liquid by nam e. B ogle and Fisons also claim ed that they had served notice to the sam e effect on all parties by m aking a general objection from the outset of discovery to “all discovery requests regarding Fisons products other than Som ophyllin O ral Liquid,” and they asserted that Jennifer Pollock’s counsel had sim ilarly lim ited the scope of discovery in their requests by defining “the product” as Som ophyllin O ral Liquid. B ogle m anaging partner R ichard W allis stresses in w ritten responses to questions for this story: “This lim itation on the scope of discovery w as first enunciated by our attorneys [in N ovem ber 1986] before they learned of the existence of any of the Intal [sm oking gun] docum ents… W hen w e learned [in 1987] of the existence of the various Intal docum ents, the issue then becam e w hether w e w ere under an affirm ative obligation to take the initiative and expand the existing product scope of discovery to include the Intal files. … W e concluded in good faith that w e did not have such an affirm ative obligation under the discovery rules, and in view of our obligation to represent our client.” B ut the devious thing about B ogle’s conduct w as not its N ovem ber 1986 insertion of the phrase “regarding Som ophyllin O ral Liquid” into its response to a request for production; it w as B ogle’s unilateral and secret-and strained- interpretation of that phrase as a license to w ithhold docum ents highly relevant to the safety of Som ophyllin O ral Liquid if they happened to be found in files other than those designated by Fisons as “Som ophyllin O ral Liquid files.” W ith this surreptitious, self-serving sem antic gam bit, B ogle and its client w ithheld the crucial docum ents w hile leading their adversaries to believe no such docum ents w ere w ithheld. 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 20/27 A nother docum ent request, from the injured child’s law yers, seeking “any w arning letters including ‘D ear D octor’ letters or w arning correspondence to the m edical professions regarding the use of the drug Som ophyllin O ral Liquid” also seem s clearly to cover the June 1981 sm oking gun letter, the suprem e court stressed. In fact, B ogle later assured opposing counsel and the court that it had produced any relevant “D ear D octor’ letters.” To explain aw ay this particular w hopper, after the leak of the June 1981 letter, B ogle supplem ented its tw isted interpretation of “regarding Som ophyllin O ral Liquid” w ith another, even m ore astonishing contention: It argued that the June 1981 letter-w hich begins “D ear D octor” and w arns of “life-threatening theophylline toxicity”-w as not a “D ear D octor” letter! H ow so? B ecause, B ogle has contended, this is a “term of art referring to a w arning letter m ailed at the FD A ’s request to all physicians in the U nited States.” Therefore, B ogle suggests, its assurances that any relevant “D ear D octor” letters had been disclosed, and that there w ere no such letters, w ere true. O n its face this is an excessively narrow and legalistic gloss on the phrase. M oreover, Fisons’s officials had in fact referred to the 1981 G rigg letter and sim ilar it and purpose of the rules, not against the standard of practice of the local bar… M isconduct, once tolerated, w ill breed m ore m isconduct, and those w ho m ight seek relief against abuse w ill instead resort to it in self-defense.” The suprem e court rem anded the case to Judge French to determ ine the am ount of sanctions and w ho should pay, w ith instructions to assess an am ount “severe enough to deter these attorneys and others from participating in this kind of conduct in the future.” O n rem and, B ogle strenuously opposed dem ands by D r. K licpera’s counsel for a public evidentiary hearing at w hich 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 21/27 B ogle partner G uy M ichelson, other B ogle law yers, and Fisons officials could be cross-exam ined about their conduct and about such questions as w hen various people at Fisons and B ogle had learned of the sm oking gun docum ents and how m uch B ogle had been paid. B ogle sought to preem pt the need for any such hearing by filing an afliclavit in w hich M ichelson said he had advised Fisons not to disclose the 1981 and 1985 sm oking gun docum ents, of w hich he adm itted-for the first tim e-he had know n since (respectively) M arch and N ovem ber 1987. B O O L E A N D F IS O N S S E IT L E Finally, in late January, B ogle and Fisons bought their w ay out of a public hearing by agreeing to pay $325,000 in discovery abuse sanctions to D r. K licpera’s insurer, and to state publicly that B ogle adm itted that i had violated the rules, and said it had “taken steps to ensure that all attorneys at B ogle & G ates understand that the rules . . . m ust be com plied w ith in letter and spirit.” M anaging partner W allis says the firm “im m ediately” circulated copies of the decision “to all of our attorneys w ho litigate in any fonn,” and follow ed up w ith m andatory training sessions w here four partners discussed the legal and practical im plications for discovery. The firm still suggests to reporters and others, how ever, as it has all along, that the suprem e court had changed the discovery rules on it in the m iddle of the gam e. The state bar gives a sim ilar rationale for its decision to do nothing about the case. So Fisons has already paid out m ore than $10 m illion-$6.9 m illion to the Pollocks, $1.5 m illion to D r. K licpera, its share of the $325,000 in discovery abuse sanctions to his insurance com pany, and fees rum ored to exceed $2 m illion to B ogle & G ates and H elsell-for its handling of a law suit that Fisons could have settled for $1.5 m illion (according to law yers close to the case), had it conducted a responsible defense from the start. 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 22/27 H ardball litigation-for w hich B ogle & G ates is know n in the Seattle legal com m unity-doesn’t alw ays pay. B ut often it does. A s the doctor’s law yer, Saltzburg, says of Fisons and B ogle & G ates: “They alm ost got aw ay w ith it.” A nd they w ould have if not for the anonym ous w histle-blow er w ho m ailed the first G rigg m em o to C unningham . A nd even though they didn’t get aw ay w ith it this tim e, the sanctions aw ard apparently forced B ogle to disgorge only a sm all fraction of its fees from Fisons. M ichelson and B aum gardner are still in good standing at the firm . A L E G A L C U L T U R E O F D E C E IT It w ould be easy to dism iss this sad story as sim ply one episode of rogue law yering by a single big law firm and its client. B ut it’s m ore than that, judging by the parade of leading lights that stepped up to defend B ogle. In the view of B ogle’s 14 distinguished litigation experts (and of Judge French), the kind of ducking and dodging that took place in this case is a routine aspect of the discovery process, and is perm itted and (som e say) even required by the rules of professional ethics. E xam ples: •R oy M oceri of Seattle’s R eed M c-C lure, a leader in the state bar association, sw ore: “M ost of the bar of this state w ould be subject to sanctions at one tim e or another” if Fisons and B ogle w ere sanctionable for their “nonresponsive answ er” to C unningham ’s request for theophylline docum ents. •D avid B oerner, a legal ethics professor at the U niversity of Puget Sound Law School, w rote: “The ‘practitioners’ see discovery as a part of, not an exception to, the adversary system … Tendentious, narrow , and literal positions w ith regard to discovery are, in m y opinion, both typical and expected in the civil discovery process.” •Jerry M cN aul, head of the litigation departm ent at Seattle’s 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 23/27 C ulp, G uterson & G rader, w ho often represents plaintiffs, said that Fisons’s responses to discovery requests w ere “typical of those that I routinely find defendants m aking in m ajor litigation.” •Yale’s G eoffrey H azard said that or the basis of his lim ited review of the case “it w ould be unreasonable to expect Fisons to review non-Som ophyllin O ral Liquid files in responding to [C unningham ‘s] request [for theophylline docum ents],” and that “I do not find evidence of discovery abuse or unethical conduct by Fisons or its counsel.” H azard added: “A n aw ard of sanctions is reserved for clear abuses of the discovery process w here reasonable m inds cannot differ on the issue. In responding to discovery requests, the rules do not require the responding party to be generous or to volunteer inform ation that m ay be helpful to the other side.” C O N D O N IN G IN JU S T IC E “W hat surprised m e about the case,” say: D r. K licpera’s law yer, Joel C unningham “is that they w ere able to get highly respected law yers to sign declarations saying the conduct w as all right… .I saw people w hom I highly respect say, ‘H ey w e do this all the tim e.’ I doubted m yself; little bit through this. I thought, ‘W ell m aybe I’m naive. M aybe I’ve been unfair to these guys.’ B ut I w ould com e back to thinking, ‘This just can’t be the w ay of practice law , and if it is, it’s just totally w rong, and it’s the reason w e spend our lives in court arguing over discovery.” The conduct that these experts con done-after describing it in highly euphem istic term s-is not just a law yers’ gam e. It causes real injustice, by denying essential evidence to w ronged parties like the Pollocks and D r. K licpera. The discovery process, and indeed the legal process fail in their m ost basic functions w hen they fail to unearth such highly relevant docum ents, and thus allow the truth to be concealed, denied, and perverted. 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 24/27 “B oth as a law yer and a law teacher I had a special interest in this case,” Stephen Saltzburg recalls. “A s a law teacher, I w as alm ost sick to m y stom ach every tim e I thought about the possibility that law schools w ould have to add to their skills training program s courses in how to m islead judges and other law yers and how to m ake m isleading statem ents rather than true ones… . “I could not im agine having to criticize a student doing an exercise for being can did, honest, and forthcom ing, and to dem onstrate how to be m isleading, false, and deceptive. W ere I to lose, I feared 1 w ould be required to do just such a dem onstration, at least if m y students w ere going to be able to fight for their clients the w ay other law yers fought for theirs.” It is no answ er-or, at least, no defense of the system -to say, w ith B ogle and its experts, that the process failed here only because the law yers for D r. K licpera and the Pollocks did not do their jobs. A ssum e, for the sake of argum ent, the validity of B ogle’s claim that Joel C unningham , Paul Luvera, and their colleagues should have fram ed their discovery requests m ore artfully, or should have sensed that Fisons w as hiding som ething behind its sly am biguities. (In fact, m ost of their key discovery requests w ere sim ple, precise, lucid, and narrow ly tailored.) So w hat? W hy should w e tolerate a discovery system that w orks w ell only w hen the law yers invoking it display uncom m on brilliance in fram ing just the right questions, uncom m on cynicism about their adversaries’ candor, and an uncom m on w illingness to go to court to rem ove any possible am biguity in an adversary’s response? “Their contention, as far as I can gather, is that I w as naive or lazy,” says Joel C unningham , “and if that’s true, I claim the right to be naive, if that m eans you expect people to tell the truth.” 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 25/27 In fact, Fisons-B ogle counsel W illiam H elsell described C unningham as “a rising star in our profession” in his January 1991 argum ent. H elsell also called the plaintiffs attorneys “as good law yers as w e have in w estern W ashington.” So, by H elsell’s account, this w as a case in w hich both sides had first-rate law yers; in w hich m assive discovery proceeded over m ore than three years; and in w hich the corporate defendant nonetheless w ould have m anaged to keep the sm oking gun docum ents hidden forever but for the random act of a w histle-blow er. H ow could that be? H elsell’s explanation, and that of B ogle’s other experts, is that som e of the best law yers in the state som ehow “didn’t do their hom ew ork.” Som ething is very w rong w hen even first-rate law yers cannot contrive discovery requests exquisite enough to prom pt their adversaries to cough up highly relevant docum ents that the defense law yers have in hand. This is the central lesson of the Fisons case, regardless of w hether you blam e the system ’s failure on unethical (but apparently com m onplace) conduct by one side or on insufficient vigilance by the other side. There is also som ething egregiously w asteful about a system in w hich law yers seeking discovery m ust assum e, if they w ant to protect their clients, that their adversaries w ill resort to evasion, obfuscation, cleverly concocted am biguities, and other trickery to avoid disclosing dam aging docum ents. For if that is the assum ption, those seeking discovery m ust do w hat B ogle’s experts say Joel C unningham should have done: take deposition after deposition, serve interrogatory after interrogatory, and file m otion after m otion, in a costly w ar of attrition to sm oke out evidence that should be obtainable through a few straightforw ard questions to opposing counsel. Finally, it is perverse for the legal system to create such strong incentives to com e up w ith rationalizations for hiding evidence. 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 26/27 F IX IN G T H E S Y S T E M The root cause of discovery abuse, and of the w aste that it entails, is the persistence of raw adversary principles and instincts in the context of a discovery system in w hich law yers are supposed to exchange all relevant, nonprivileged inform ation in “a spirit of cooperation and forthrightness,” in the w ords of C hief Justice A ndersen. A nd the solution is to reform the discovery process by m aking crystal clear the obligations of litigants and counsel to hand over the m ost relevant inform ation to their opponent: w ithout playing endless gam es over w hether just the right question has beer asked. A m odest step dow n this road has now been taken by the federal judiciary, w ith the adoption (effective last D ecem ber 1) of discovery reform s including a requirem ent (at the option of the various U . S district courts) that parties identify or produce clearly relevant docum ents (and certain other inform ation) to one another a the outset of a case. Yet these new federal discovery rule: have inspired such a rem arkable storm of opposition, from such a broad array of litigators-the plaintiffs trial bar, the corporate defense bar, and a raft of other groups-that C ongress alm ost vetoed them before they took effect, and m ight still, conceivably, repeal them . W hat explains the breadth of this opposition? Self-interest, for one thing: The w aste associated w ith discovery as w e know it is m easured in billable hours, and any reform that cuts dow n on such w aste w ill cost law firm s a pile of m oney. M oney aside, m any law yers sincerely believe that the m andatory disclosure rule w ould put them at cross-purposes w ith their clients-for exam ple, by forcing them to volunteer dam aging evidence even if it is relevant only under theories o liability that m ight never have occurred to opposing counsel. 1/11/2015 Sleazy In Seattle | Stuart Taylor, Jr. http://www.stuarttaylorjr.com/?p=15593#more-15593 27/27 They also fear that turn-it-all-over obligation w ould deter law yers from asking probing questions of their clients for fear of finding skeleton in closets that they w ould then be obliged to throw open to their adversaries. Perhaps so. B ut w hat w ould be so bad about that? W hy shouldn’t w e put law yers at cross-purposes w ith clients w ho are seeking to conceal relevant evidence? N ote that here w e’re talking about corporate clients seeking to avoid civil liability, not about individual crim inal defendants squirm ing in the grip of the state. The rules should be designed to achieve higher purposes than ensuring the w ealth and com fort of law yers by helping them facilitate fraud. A nd w hy shouldn’t w e require litigants to bring relevant evidence to light regardless of w hich side it helps? Sure, this m ight reduce the advantages that skilled, diligent law yers have over sloppy, lazy law yers. B ut litigation rules should be aim ed at aw arding victory to the party w ith the best case, not the one w ith the best law yer. The glory of the adversary system has been its pow er to illum inate the truth by harnessing the skills of zealous advocates for opposing parties to dig out relevant facts and to clarify w hich inferences judges and juries can reasonably derive from a full factual record. The sham e of the adversary system has been its degeneration into a pretext for law yers to hide facts, so as to pervert the truth. It’s tim e for those w ho care about the system to m ake it clear that the duty of zealous advocacy neither requires nor perm its law yers to be cover-up artists.

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