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Civil discovery rule changes described by @swlaw attorney

“No (More) Fishing” may be one way to describe changes to federal discovery rules.

­­As you likely know, important changes were recently made to the Federal Rules of Civil Procedure, including changes in the discovery realm, captured in Rule 26.

In late January, Snell & Wilmer partner Mitch Klein wrote about the amendments, particularly in regard to environmental and natural resource litigation.

He is some of what he said in his well-written blog post:

“Previously, parties were entitled to conduct discovery regarding anything that might be ‘reasonably calculated’ to lead to relevant and admissible evidence. In practice, this led to some parties deposing witnesses and subpoenaing documents with only a tenuous relationship to the real issues of the case. This kind of behavior caused significant costs and delays in litigation.”

Snell & Wilmer partner Mitch Klein

Snell & Wilmer partner Mitch Klein

“In environmental and national resource litigation, abusive discovery conduct typically results from parties without any real evidence looking for some (fishing expeditions), deep-pocketed parties trying to overwhelm their adversaries under a pile of documents and/or multiple and lengthy depositions, or parties who have no real idea what they were doing and are trying to figure it out along the way.”

“The new rule now requires an analysis of ‘proportionality.’ Rather than seeking everything but the kitchen sink, a party conducting discovery has an obligation to show why the discovery is reasonable under the facts and circumstances of the case.”

You should read the whole thing here.

Of course, I’ve been around long enough to know there’s more than one way to look at rule changes. And when I see phrases like “abusive discovery,” “fishing expeditions,” and “everything but the kitchen sink,” I would guess at least a few lawyers would want to characterize things differently.

So today I wonder:

  1. Should we cover this topic in Arizona Attorney Magazine? and
  2. How would you describe the discovery rule changes? As Mitch did, or otherwise?

Write to me at arizona.attorney@azbar.org.

Pile of documents stack up high waiting to be managed

Needles and haystacks are often a metaphor for civil discovery.

Arizona lawyer—and our arts competition music winner—Stu De Haan made a devilish argument about free speech and freedom of religion.

Arizona lawyer—and our arts competition music winner—Stu De Haan made a devilish argument about free speech and freedom of religion.

If politics and religion are two topics we should never discuss in polite company, the Phoenix City Council seems like the ideal place to address both.

This week has seen a firestorm of hellish indignation over the news that a group of satanists petitioned the Phoenix city clerk’s office to offer the “invocation” at an upcoming City Council meeting. After reviewing the request and the fact that municipalities cannot be in the business of “picking winners and losers” when it comes to deities, it OKed the request.

As Phoenix City Attorney Brad Holm said in a statement, “Consistent with the U.S. Supreme Court’s direction, the city cannot dictate religious viewpoints or the content of a prayer.”

Imagine that—following the law.

Cue the choirs, celestial and otherwise.

Read a news story about the devilish quandary here.

To the surprise of almost no one, there is not unanimous agreement with the decision—though the February 17 meeting will likely be standing-room only due to the controversy.

One Phoenix councilman said it’s “a dumb idea,” and another insisted the Satanists should have been denied and simply let them sue. Knowing there’s often fire where there’s smoke, media are all over this. Here’s a video news story:

I confess I’m surprised by the uproar. I’ve been in that chamber many times, and I’m pretty sure I’ve spotted Lucifer at numerous zoning hearings. And who hasn’t smelled the distinct odor of sulfur as countless variance requests are rubber-stamped? Or maybe I need to get my eyes and nose checked.

Wherever you stand, this is a fantastic lesson in the First Amendment, playing out right in the heart of our state. You’re welcome, America.

Stu De Haan and his instrument in Arizona Attorney Magazine, May 2015.

Stu De Haan and his instrument in Arizona Attorney Magazine, May 2015.

And yes, there is an even more intimate legal angle to this. Spokesman and legal adviser to the Satanic Temple (and a “Satanic Templar”) is Arizona lawyer Stu De Haan. And here at Arizona Attorney Magazine, we are a big fan of him—and his music.

Those with good memories will recall that Stu was the winner in the Music category in our 2015 Creative Arts Competition. He appeared on our cover and inside pages, and we featured “Don’t Get Stuck in a Roadside Ditch” online. That song is by his band Scar Eater, “a five piece post-hardcore band from Tucson.”

As Stu described his song, “This song is about facing fears, shedding one’s negative past, and embracing an aggressive but positive outlook on the inevitable difficulties of life.”

You can read more what I wrote about Stu, and listen to “Roadside Ditch,” here.

Arizona Attorney Magazine May 2015 cover arts competition winnersA final thought: It bears noting that Stu and his fellow Satanic Templar Michelle Shortt are traveling north from Tucson to deliver an invocation—and make a point, I suppose—because the Tucson City Council gets to the work of its meetings without bothering with a prayer of any kind. No muss, no fuss.

Imagine that—focusing on governing.

As we head into our Friday, please enjoy “Sympathy for the Devil” by the Rolling Stones. “Pleased to meet you; hope you guess my name.”

Have a terrific—and free-speech-filled—weekend.

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A new Phoenix Compliance Assistance Program aims to assist residents whose civil fines have led to the loss of a driver's license or worse.

A new Phoenix Compliance Assistance Program aims to assist residents whose civil fines have led to the loss of a driver’s license or worse.

This week, the City of Phoenix and its Municipal Court announced a new program that aims to counter situations that have too often have led people into financial straits and even into the justice system.

The new “Compliance Assistance Program” is “designed to give residents with past-due traffic fines a path to repay the debts and work towards restoring driving privileges.”

The past year has provided numerous examples from around the country in which residents faced financial ruin and increased interaction with police because of an accumulation of unpaid tickets, fines, and penalties. But these issues didn’t just face residents of Ferguson, Missouri, or other newsworthy places; they face residents of Arizona cities too. The Phoenix program is a salutary effort to address those problems; you can read more about it here.

As Megan Cassidy reports:

“The Compliance Assistance Program is designed to break what can become a crippling cycle of fines and subsequent driving penalties: Unpaid fines can lead to a suspended license. And driving on a suspended license can lead to criminal charges and jail time for the working poor. As of Dec. 31, Phoenix was owed more than $283 million in overdue municipal fines, fees and restitution dating back decades. As many as 6,000 people currently have their licenses suspended because of delinquent Phoenix fines.”

Phoenix City Councilwoman Kate Gallego

Phoenix City Councilwoman Kate Gallego

Quoted in the story and a key driver of the change is Phoenix City Councilwoman Kate Gallego.

“We want people to be able to pay their fines in a sustainable way,” she said. “If you push people to the brink of their financial ability, the consequences are more negative.”

New Chief Presiding Municipal Judge B. Don Taylor came into the job via a contentious process, but his advocacy for these changes is a welcome sign for a progressive court, one that has substantial daily interactions with residents. Though the program is just a first step, residents should be heartened by the actions of Judge Taylor and Councilwoman Gallego, who “said she made reforming the Municipal Court system a priority in her decision-making when the City Council selected a new presiding municipal judge last year.”

As Judge Taylor says in the Arizona Republic story, “It’s really providing a mechanism that people haven’t really had before. I think creating something that will allow them to be compliant, get the license back, really helps them be in a good place.”

If the name Don Taylor sounds familiar, it may be because he’s a longtime lawyer, former prosecutor, and even a story-subject in Arizona Attorney Magazine. In 2007, we spoke with him as he worked at the International Criminal Tribunal at The Hague.

Congratulations on the new program.

Attorney B. Don Taylor in the February 2007 Arizona Attorney, describing his work at The Hague.

Attorney B. Don Taylor in the February 2007 Arizona Attorney, describing his work at The Hague.

"The Jury" (1861) by John Morgan: Persuading a jury is one important quality of an expert witness. What else do you value?

“The Jury” (1861) by John Morgan: Persuading a jury is one important quality of an expert witness. What else do you value?

We’re working hard on our March issue of Arizona Attorney Magazine, which largely will focus on expert witnesses. So important and relevant is the topic, in fact, that we are building an entire separate magazine to hold the content. In a historic move for us, that special issue and our regular March issue will by “polybagged” together and mailed to readers. I think you’re going to like it!

But all of this focus makes me wonder about your own experience with expert witnesses. So please (please!) send me a quick note that answers any or all of the following questions:

  • The one great thing an expert witness can do to ensure their value to you and your case.
  • The one sucky thing an expert witness can do that is guaranteed to send you into paroxysms of anger.
  • The one thing you would advise fellow lawyers to do better that would assist the lawyer–expert relationship. (After all, you’ve got to admit that the problem may be on the lawyer end of the equation!)

Your quick comments and/or anecdotes (without naming names, I’m assuming) are welcome in the comments section or via email to me: arizona.attorney@azbar.org. I’d appreciate hearing any insight you can share.

The witness box is only one place an expert can demonstrate show his or her value.

The witness box is only one place an expert can demonstrate show his or her value.

road sign What can make a judge frown upon receiving a request for attorneys' fees?

What can make a judge frown upon receiving a request for attorneys’ fees?

A fee award, cut in half.

You may have done a spit-take when you read this story, about a judge in Texas who granted an award of attorneys’ fees, but halved the awards in two instances.

As the Texas Monthly reports:

“[David] Harper and his fellow lawyers only got half of what they wanted from [U.S. District Judge Jane] Boyle in fees. She cut their $1.2 million request down $600,000 in a recent order in Spear Marketing Inc. v BancorpSouth Bank.”

Discretion being the better part of valor, the attorney himself complained hardly at all, noting that judges “have broad discretion in making attorney fee determinations.”

Maybe it was the $600 an hour being claimed that set the judge off. Or, who knows, there could be many other things that occurred—or didn’t occur—in the lawsuit that informed her decision.

Time and money, the lawyer's calculus. justice scales clock time money lawyer attorney fees

Time and money, the lawyer’s calculus.

In any case, the judge found that the fees were “unreasonably inflated.” Meaning, I suppose, that the more proper course is to reasonably inflate them.

Whatever led to her decision, it had to be a rude wake-up call to the lawyers, who, for planning purposes, probably had certain million-dollar expectations. Who doesn’t like predictable outcomes, after all?

As you dear readers are pretty discreet yourselves, you likely will not reply to my own query to you: Have you been in a fee-award situation in which the judge made such a drastic *gulp* adjustment? Or, put more charitably, what are your best practices for submitting an attorneys’ fee affidavit that garners the judge’s support?

Come to think of it, that could make a terrific magazine article, one that folks would rip out and save.

Write to me at arizona.attorney@azbar.org.

basketball denied tumblr_mucwilVVxM1rc9kago1_400 Win your case. Check. Persuade judge you deserve a fee award. Check. Take the shot, and ...

Win your case. Check. Persuade judge you deserve a fee award. Check. Take the shot, and …

Earlier this month, women lawyers and law students filed an amicus brief that told the story of their own abortions and the value that reproductive rights played in their careers.

Earlier this month, women lawyers and law students filed an amicus brief that told the story of their own abortions and the value that reproductive rights played in their careers.

The legal battle over reproductive rights continues to be much in the news. And the heat got turned up this week when Planned Parenthood filed a lawsuit over an antiabortion ‘sting’ video-maker. As the Washington Post reports:

“Planned Parenthood filed a federal lawsuit Thursday against the maker of a series of undercover videos released last year that sought to prove that the women’s health organization illegally profits by selling tissue from aborted fetuses.”

You can read about the allegations here.

But that reminded me, in an in-case-you-missed-it spirit, that a remarkable brief was filed at the U.S. Supreme Court in early January. As reported in the National Law Journal:

“More than 100 female lawyers joined in a brief to tell the U.S. Supreme Court about their own abortion experiences and why their reproductive freedom was pivotal to their personal and professional lives.”

“The extraordinary brief, filed last week, was signed by former judges, law professors, law firm partners, public interest lawyers and law clerks, though none who clerked for the high court itself.”

A Texas case may be "the most important Supreme Court battle over abortion in a generation."

A Texas case may be “the most important Supreme Court battle over abortion in a generation.”

The case, Whole Woman’s Health v. Cole, comes out of Texas, which enacted restrictions on abortion clinics “that could result in shuttering many facilities. [Abortion advocates] claim the regulations pose an ‘undue burden’ on women’s rights.”

Read the whole story (and the brief) here.

Wherever you stand on the question of abortion, this advocacy and the attempt to persuade the Justices are noteworthy. As the story says, attorney Janice Mac Avoy is an attorney who volunteered to tell her own story and to be a lead party on the brief. She pointed out that the drafting in the brief “responds to ‘storytelling briefs,’ often filed on the other side, that relate the stories of women who have regretted their abortions.”

Legal history is filled with examples of parties adopting the strategies of opponents. Time will tell whether this amicus brief, and the many others filed, are ultimately persuasive. “Set for argument on March 2, the case is viewed as the most important abortion rights case in nearly a decade.”

Have a terrific—and persuasive—weekend.

Opponents and supporters of Planned Parenthood demonstrate Tuesday, July 28, 2015, in Philadelphia. Anti-abortion activists are calling for an end to government funding for the nonprofit reproductive services organization. (AP Photo/Matt Rourke)

Opponents and supporters of Planned Parenthood demonstrate Tuesday, July 28, 2015, in Philadelphia. Anti-abortion activists are calling for an end to government funding for the nonprofit reproductive services organization. (AP Photo/Matt Rourke)

This month, attorney Clint Bolick was selected as a new Arizona Supreme Court Justice by Gov. Doug Ducey.

This month, attorney Clint Bolick was selected as a new Arizona Supreme Court Justice by Gov. Doug Ducey.

It cannot be easy to select a new state supreme court justice. So much is involved in the job that a panel must weigh a broad array of talents and experiences. And at the end of the day, the old adage applies: You can’t please everybody.

Clint Bolick is a longtime litigator for the Goldwater Institute and an occasional columnist for Arizona Attorney Magazine. (Read a few of his pieces where he discussed courts, judges, and legal services here, here, and here. And he discusses a book on immigration reform he coauthored with Jeb Bush here.) And now he can add Arizona Supreme Court Justice to his roster of accomplishments (though I’m sure columnist will always be his favorite achievement!)

You can read news stories about his appointment by Gov. Doug Ducey here, here, and here.

Arizona_Supreme_Court_SealThose also up for the job had ample experience as appellate judges, which the new Justice lacked. That, plus his previous advocacy litigation, meant that his selection was not met with unanimous positive reviews. (for a negative take, here is E.J. Montini’s column in the Arizona Republic.)

Whatever your view of his appointment, I was pleased to watch Clint Bolick’s interview as he sat before the appointments panel (and I urge you to watch it here). Sitting in the hot seat, Clint did extremely well. He did not appear there as a man who lacks the skill and experience for the job. Nor did he overcompensate by appearing prideful about his litigation record. Instead, he was—and is—soft-spoken and self-effacing. And that has been my experience of him as a colleague and writer.

If there is an entry for “disarming interview” in the dictionary, he would occupy the spot.

Of course, none of that means you will necessarily be pleased (or disappointed) in his subsequent opinions. His judicial record will now roll out over a course of years. Until then, I congratulate Justice Bolick and wish him the best.

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