This system is based on the clash of opposing parties.
The clash is regulated by rules.
The system is presumed to yield good results if everyone adheres to the rules.
Deciding to Litigate and Frivolous Litigation
The decision to engage in litigation requires careful consideration.
Frivolous litigation is a concern regulated by rules of professional conduct and civil procedure.
Understand the principles behind rules preventing frivolous litigation.
Distinguish between frivolous litigation and litigation instituted for improper motives.
Lawyers may face disciplinary and procedural sanctions for either.
Underlying Values of the Adversary System
Consider the letter to the editor about William Kunstler (a prominent civil rights lawyer). Research Kunstler if you're unfamiliar.
The letter questions the American legal system's effectiveness and concept of justice.
The author suggests the goal of a criminal trial should be to find the truth.
The author implies Kunstler was wrong in how he litigated for his clients.
However, the American justice system is based on values that don't always prioritize discovering the truth.
Example: motion to suppress evidence, based on values more important than truth.
The Role of Litigators: Pretrial Litigation and Discovery
Litigators spend most of their time on pretrial litigation, specifically discovery.
Most cases settle without trial.
The duties of lawyers in discovery are crucial.
Ethics in America: Discovery in a Product Liability Case
Discussion of a PBS program, Ethics in America, featuring lawyers discussing a fictional product liability case.
The case involves Hot Products, a company that makes space heaters (specifically, the Hot Boy model).
Hiram Powers, the CEO, consults with counsel about a memo from safety engineer Nelly Barnes.
Nelly is concerned about fires potentially caused by the Hot Boy due to a faulty shutoff mechanism when the heater tips over.
Fixing the issue with an emergency shutoff would significantly increase the product's price and alter the market structure.
Powers hasn't made a decision to shift the product because it's not clear enough a problem exists.
Counsel advises that the company could face liability if someone gets hurt, especially with notice from Barnes' memo.
Powers claims the memo is the only copy and was delivered to him directly by Nelly.
Another counsel suggests the CEO may get a zealous prosecutor who wants to prosecute your criminals too for some sort of reckless conduct and recommends stopping and considers a recall.
Discussion of whether the counsel should challenge the CEO's business decision.
One lawyer suggests going to the board of directors.
Birnbaum suggests tough decisions are made alone by Powers, showing a memorandum that includes:
Nelly's description of difficulties.
An estimate of 40 fires per year if Nelly's claims are correct.
Potential deaths (maybe six).
Estimated lawsuit settlements of $200,000 each.
High costs of repositioning or recalling the product.
Conclusion: Better to study the problem further and keep producing.
Note: The kind of people that use these hot boys cheap space heaters, they're not really into lawsuits that much.
This memo is described as a "smoking gun document" that could lead to punitive damages if discovered in civil litigation.
Discussion about whether to destroy the memorandum.
Destroying documents can be worse than finding them because juries may infer the document contained damaging information.
Advice given not to create memos like that in the first place.
Erase the document if you always override things that you've written to yourself as a general matter.
No law broken if the CEO destroys the memo (in any jurisdiction known).
Destruction of the memo can be performed tactically, but the firm will deal with the aftermath if it is discovered.
It is legally permissible because it's purely tactical but ethically wrong to get rid of it.
Judge Scalia agrees with the legality of destroying the document at this point.
It becomes illegal to destroy a document once it's subpoenaed or noticed in discovery.
A lawyer recommends only answering the asked question directly and not to volunteer and expand on answers.
Also, only answer if you're sure that you know the answer.
Key Questions for Further Consideration
At what point does a valid and reasonable defense to discovery become improper gamesmanship?
Where is the line between zealous advocacy and conduct prejudicial to the administration of justice?
Articulate the principles upon which the adversary system of litigation is based.