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Free Minds & Free Markets

No Secrets

If you get arrested, you have the right to remain silent. But if you get sued, they have ways of making you talk.

If your ex-spouse sues you for custody of your children, you may open the mail one day to find one of the standard-form information demands ("interrogatories") from the widely used lawyers' handbook Bender's Forms of Discovery. It contains 207 questions to answer under oath. The actual number is quite a bit higher than 207, however, because many questions are divided into a), b), c), and so on.

Question number 58 asks, "Are there any regular visitors to your home?" If so, number 59 wants to know "a) Name and address of each regular visitor; b) each person's occupation; c) The frequency with which each person visits your home; d) How you met each person." You must then tell what happens when each friend stops by, with separate entries for when their children come along and when they do not.

After a long section exploring the drinking habits of you and everyone else in your household comes "Social and Political Ideologies. 118. Are you a member of any associations, organizations or clubs?" You must tell how long you have been a member of each group, what you do there, and so forth. The section probing matters of race and national origin is long and unnerving, but it is outdone by the section titled Religious Beliefs: "142. Do you believe in a Supreme Being? 143. How would you describe this Supreme Being?…How often do you attend church?"

The sheer protraction of litigation, being stuck in it for years while the ruinous legal fees bleed away, is not its only terror. Another is the loss of privacy. Most people have secrets: some off-the-books income, a bad habit that's hard to break, an irregular romance. Even persons with clean records and easy consciences are loath to reveal their bank statements and tax records or to repeat the private opinions and behind-the-back utterances they have vented about colleagues and friends. Trade formulas, customer data, and inside knowledge of markets can be crucial, sometimes the most crucial, assets of a business or organization.

Cross-examination—questioning by a hostile lawyer—has long been one of the most feared ordeals in the law. Many a blameless litigant has settled rather than face such grilling. That is one reason criminal defendants enjoy absolute protection against having to testify against themselves, without adverse inference being drawn. But those caught up in civil litigation enjoy no such protection, whether plaintiffs, defendants, or bystander witnesses.

Fortunately, there is one big safeguard for the target of cross-examination at trial: A judge is sitting there. One of the essential roles of a trial judge is to keep lawyers on the straight and narrow by preventing brutal or overly intrusive questioning. Lifting a judicial eyebrow is often enough to curb dubious conduct, but another control is more systematic and reliable. Judges enforce rules of evidence.

The exclusion of irrelevant evidence is the great defense of privacy in litigation. Most of us can take comfort in the thought that our most embarrassing secrets aren't very relevant to whatever litigation we might land in. If your custody case were at trial, for example, a judge would soon call a halt to lengthy questioning about your religious affiliations, friends, and drinking habits unless it were leading up to a major disclosure. The opposing lawyer would not be allowed to fish around for hours in hopes that an eccentric spiritual belief or ne'er-do-well acquaintance would turn up.

The famous old textbook rules against opinion and hearsay also reduce both the time spent on the stand and the painfulness of what is said there. They let you concentrate on telling what you yourself have seen, said, and done, with a minimum of occasions for ratting on your friends or disclosing your personal views of the characters of your in-laws or boss.

The power entrusted to lawyers to compel answers to questions under oath is so extraordinary that for nearly all of legal history it was essentially limited to pleadings and trial, the two times when judges supervised lawsuits. Lawyers have all sorts of reasons to want to force their opponents to confess information at other times and places. But the old system gave them few and meager chances to carry out such advance discovery of evidence.

Most notably, they could ask a judge's permission to conduct the sort of interview known as a deposition. The idea was simple and the limitations revealing. Some witnesses won't make it to trial. Some die, some sail over the seas to far places; some go mad, like Miss Flite in Bleak House, from the litigation itself or more natural causes. To avoid losing the testimony of such witnesses, lawyers could request court permission to ask them sworn questions before a notary or other officer.

On the rare occasions when lawyers could take depositions, it was under drastic conditions. Of course, their questions had to be relevant and admissible under the rules of evidence. Some courts, hewing to the principle that discovery was a last resort, forbade lawyers to compel the admission of facts they could learn elsewhere. Another rule permitted lawyers to ask only for evidence that supported their own case, not their opponent's. The point of the own-case-only rule was to foil perjury. To reveal the whole of one's evidence would teach a dishonest opponent exactly what he could get away with saying.

Thus matters stood for a very long time. A few minor rules aided discovery: For example, lawyers could ask that their opponents be made to present for inspection certain documents of obvious relevance to their case, such as a contract their client had signed. But for the most part they had to rely on what they could glean from friendly witnesses, their own investigations, and whatever the other side revealed in negotiations.

Over the years, state expanded the realm of discovery. New York's Field Code of 1848, for instance, allowed lawyers to pose both oral and written questions purely to help prepare their case, without asking court permission. A few states went even further. In principle, these were startling innovations: The old right to remain silent until one stood before the judge was turning into something like an obligation to pipe up on demand. In practice, the difference was not earthshaking, mostly because for many years reformers were careful to retain the controls on what lawyers could ask.

The more discovery lawyers were allowed to do, the better they seemed to like it. The legal thinkers of the New Deal were quite smitten with its virtues. It averted the need to draw out laboriously at trial facts that could be agreed on earlier. Unleashing wider discovery, they solemnly predicted, would make litigation even more efficient. The sooner lawyers learned the truth, the cheaper they would find it to prepare their cases, and the more likely they were to settle.

In 1938, the Roosevelt administration devised the first unified code of procedures for federal courts. The new Federal Rules of Civil Procedure, which continue in modified form to this day, helped touch off America's eventual litigation explosion. Earlier rules, by and large, had discouraged people from filing lawsuits unless and until they were sure the facts would back them up. The new spirit could be described as one of "sue first and verify later." Under the modem rules, to quote Yale law professors Fleming James, Jr., and Geoffrey Hazard, Jr., "persons who may not know whether or how they were wronged" [emphasis added] can sue without apology or explanation.

No one wanted to send all those suits-on-suspicion to trial. And so the legal system would have to provide some way for eager litigants who hoped they had a valid claim to "use discovery to find out—'the fishing expedition,'" as James and Hazard put it. And the 1938 rules opened up a new and unprecedented scope for such expeditions.

The logistics differed little from those of the earlier codes. Lawyers could demand oral and written disclosures without a court's say-so for purpose of frank discovery. The great difference was in what they could ask. University of Michigan professor Edson Sunderland, who drafted the new discovery procedures, began by tossing out the own-case-only rule. Moreover, the questions no longer had to be relevant to the issues actually in dispute, so as long as they related somehow to the litigation's subject matter, whatever that might mean. This allowed no end of probing on matters that were not being raised as a legal issue or had already been fully conceded. More astounding, lawyers could demand hearsay, opinion, or other information that was not admissible at trial, so long as they could argue that it might lead them to other facts that they could use at trial. Before 1938 a few questions were clearly permitted and most others were out of bounds; afterward, the litigators could venture broadly, save for a few shrinking areas of privacy protection ominously labeled "privilege."

"Anything goes," complained California lawyer Moses Lasky. "Attorneys must inquire into everything and prepare for everything, because no court will tell them where to stop or permit them to stop an adversary. The waste of time and money is immense."

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