As children, most of us stood there in front of a new world with uncapped curiosity and boundless enthusiasm for life. Early on, our parents taught us how important it was to get along with others, say “please” and “thank you”, and always try to work out a conflict through cooperation. Then, some of us go to law school, become lawyers -- and suddenly, those life lessons go out the door! As lawyers, we're taught the value of strategic thinking in every aspect of what we do; almost as if every new matter is a new game of chess against a new opponent. We are taught that our opposing counsel is really our adversary and we argue motions, and as such, we up the gamesmanship and perhaps hide some of our pawns. The idea of cooperation between lawyers, therefore, tends to naturally get lost by the wayside.
However, cooperation between lawyers is not what you think. In fact, in order to dispel you of every notion of what cooperation may be, I will opine below that in order to get to a place in which we, as lawyers, can argue the actual merits of a case and not about file types, databases, and search terms, we must understand what’s precluding us from cooperating, the benefits to cooperating, and interestingly enough, what is happening in our brains when we’re asked to negotiate terms of a Discovery Plan.
What is this word you speak of? I'm a lawyer!
First, let’s take a look at the fascinating etymology of the word as I think it’ll help frame the discussion here. Dictionary.com defines it as “an act or instance of working or acting together for a common purpose or benefit; joint action.”
The origin of the word cooperate comes from the Late Latin word cooperārī, which means "to work with or combine". The Latin word operārī means "to work". When you put it together, the word really means “working together” for a common benefit.
In a study by scientists Mirre Stallen and Alan Sanfey entitled, “Cooperation in the brain: neuroscientific contributions to theory and policy”, they define cooperation as “any behavioral act that entails a degree of self-sacrifice to further the greater good”.
The question for counsel for both plaintiffs and defendants becomes this: what exactly is the common benefit and the greater good for which counsel would be working together for?
It’s all in your head (really, it is!)
Here’s where it gets really fascinating for us as lawyers. Cooperation is really all in your head — to be more specific — it’s literally in your brain. While I didn’t get a degree in neuroscience, studying how the brain works can help nearly everyone in every profession as every interaction humans have are tied to a few very specific areas in our brain that is reacting to some event.
In his marvelous book, "Brain Rules", Dr. John Medina talks about how humans are the only animal that has learned to apply analytical thinking to every day actions in life. In one example, he talks about how early humans learned that to survive, we learned how to cooperate early on. For instance, if one person wanted to take down a wooly mammoth it would be impossible. However, if there were two or three people, coordinating behavior, acting in a way that entailed some degree of self-sacrifice to further the greater good (lots of meat for everyone), the mammoth isn't in control any longer. In other words, as Median notes in his book, early humans learned to cooperate -- "creating a shared goal that takes into account our allies' interests as well as our own. In order to understand our allies' interests, we must be able to understand others' motivations, including their reward and punishment systems. We need to know where their 'itch' is. To do this, we constantly make predictions about other people's mental states.”
But where does this natural and instinctive behaviour come from? What's clear is that brain scientists have not figured out our brain (just yet). It's a highly complex organ. However, what we do know is that the ventral striatum and ventromedial prefrontal cortex (aka the VMPFC) is what controls your ability to collaborate. The VMPFC is located in what is affectionately known as the “Mammalian Brain”. Basically, it controls your emotional response. If someone makes you mad, sad, happy, madly in love, etc -- it’s essentially a response that is controlled by this area of the brain. It processes your emotions and decides within 5 to 7 seconds whether or not to funnel the data over to the neocortex.
The neocortex is really important because it controls what we often associate with lawyers: logic and reasoning. But, I bet you didn’t realize that even when you thought you were making decisions based on “logic and reason”, they were really an emotional response! No matter what, every decision you make starts with an emotional reaction. If you've heard of the "fight or flight" mode, that's when the mammalian brain takes over and shuts down the neocortex. Of course, I hope that never happens between lawyers in court! If you want to read more about this, I highly suggest reading “Brain Brilliant: Increase Your Personal and Professional Profit” by AmyK Hutchens.
Next to elephants, chimpanzees and ants, humans are the one mammal that knows how to collaborate better than any other species on earth. In an experiment to test elephant’s ability to collaborate, University of Cambridge professor Joshua Plotkin said that "Intelligent species must learn to adapt to their changing environments, solve problems, cooperate — all of this requires great flexibility in behavior." History professor Yuval Noah Harari, author of Sapiens: A Brief History of Mankind wrote that "only Homo sapiens can cooperate in extremely flexible ways with countless numbers of strangers."
Scientific research has shown over and over again that “human beings are a social species that relies on cooperation to survive and thrive." What’s more, additional studies show that even in "difficult situations, the desire for cooperation would appear to often be nascent and the evidence suggests that we are naturals at it, given the opportunity." What we can all deduce from some of this really cool science is that choosing not to cooperate actually goes against the grain of our genetic
With this understanding, the question then becomes this: if humans are naturals at cooperation, then why don’t we do it more in the legal profession?
“Cooperative Adversarialism” (Yes, I coined that!)
“Cooperative Aversarialism” is really no different than “coopetition”. In other words, it’s being a strategic advocate on behalf of your client while at the same time, cooperating where it makes simple, logical sense — like at a discovery conference. Why doesn’t it happen more often then? One can easily opine a few reasons for this, but quite simply: it’s ingrained in the vernacular we’ve used as lawyers for thousands of years!
First, let's take a look at the word we use to describe our opposing counsel: our adversary! The word adversary dates as far back as the Old Testament, and since those early days, the word has always been defined as an "unfriendly opponent" or “enemy".
Second, historically, we have been taught to be “zealous advocates” on behalf of our clients. But, the word zealous dates back to the 14th century and has been defined as a “passionate ardor in pursuit of an objective” or "zealot" (which is also akin to an extreme faction). It may not be so crazy to deduce that a lawyer, being a zealous advocate on behalf of her client, who has an adversary, might just lend itself to inherently not wanting to cooperate!
Retired Judge David Waxse reminds us in his excellent article, “Cooperation: What it is and why do it” that the phrase "zealous advocate" actually an archaic phrase.
Judge Waxse said, in part: “Lawyers and judges should consider that the ABA Model Rules of Professional Conduct removed the former ethical obligation for zealous advocacy from the ABA Model Code of Professional Responsibility when the ABA Model Rules of Professional Conduct replaced the Code in 1983.”
It is notable that the phrase “zealous advocacy” only appears in the Preamble to the ABA Model Rules, and is very specific in how it is referenced. The Preamble states that as advocates, we are supposed to “zealously assert the client's position under the rules of the adversary system" (emphasis added). Later in the preamble it states that while being a zealous advocate, we must also maintain "a professional, courteous and civil attitude toward all persons involved in the legal system.”
Ten years ago, the Sedona Conference handed down what I thought to be one of the most common sense publications I ever read: "The Cooperation Proclamation". In just three pages, it reiterated what our parents taught us as toddlers: be courteous to others and always try to work out conflict through cooperation. More specifically, the Sedona writers showed that there is a distinction between zealous advocacy and adversarialism. Being a zealous advocate and being adversarial is a distinction with a difference.
The Cooperation Proclamation said, in part, that while attorneys are “retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner.” Further, “it is not in anyone’s interest to waste resources on unnecessary disputes, and the legal system is strained by ‘gamesmanship’ or ‘hiding the ball,’ to no practical effect”.
Furthermore, the Proclamation goes on to say that a lawyer's "combined duty is to strive in the best interests of their clients to achieve the best results at a reasonable cost, with integrity and candor as officers of the court. Cooperation does not conflict with the advancement of their clients’ interests - it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict”
But there’s inherently a problem with the theory of cooperating with opposing counsel at a discovery conference if that lawyer doesn’t understand e-discovery. How can lawyers come “prepared” to a discovery conference and expect to cooperate — especially in the face of dramatically increasing data volumes, changing privacy regulations, ever growing unstructured data and ephemeral data, and rapidly changing technology that collects, processes, culls, searches, reviews and produces ESI — without having knowledge of, or retaining an expert with the appropriate knowledge to discuss e-discovery?
Let's Apply Neuroscience and 'Cooperative Adversarialism' to E-Discovery
For purposes of this article, I’ll skip past all of the trends reports that tell us how much data we are creating every day and how scary it is to capture various data types — especially ephemeral messaging. I’ll fly past how costly e-discovery is making litigation. I’ll also gloss over all of the scary case law that talks about how judges continually lambast and sanction attorneys for their intentional and unintentional e-discovery misgivings.
I’ll also resist talking about how some lawyers still don’t fully understand what the R. 502(d) clawback provision is and why it is so important. I also won’t dive into the revisions in the Federal Rules that hones in on e-discovery.
But, wait, isn’t that the point?
I travel all over the country giving education presentations. I’ll never forget one trip to New York where I had just quoted the Cooperation Proclamation when a senior partner interjected and said that it appears that eDiscovery is being treated as more of a sword than a shield. In other words, it was his view that there are more motions being filed by tech savvy lawyers alleging eDiscovery violations just to drive up costs so as to prevent the other side from arguing the actual merits.
Yet, contrast that with another partner at a law firm in South Carolina who told me that if he cooperates with opposing counsel, his client would think he was a “weak attorney”. Not cooperating allows him to appear as if he’s a zealous advocate — and allows him to make his billing quota by arguing e-discovery. True story!
All of this reminds me of a great quote in the Metropolitan Corporate Counsel magazine by Doc Schneider, a partner at King & Spalding law firm: “The legal system ought not to make e-discovery so burdensome that people with a meritorious claim are deprived of their ability to win.” There are a lot of arguments by judges and lawyers alike that cooperating is akin to being “weak” or “showing all their cards”. I've even heard some lawyers say that "hiding the ball" helps to increase their billable hour quota for the year! However, cooperating with opposing counsel to ensure a speedy and efficient process in litigation and being a “zealous advocate” are not mutually exclusive.
To prove this point, let’s review some crucial rules that apply here. First, Rule 1 of the Federal Rules of Civil Procedure starts out with the basic principle that every Rule contained therein should be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” In order to comply, attorneys must have a modicum of knowledge relative to e-discovery, or at a minimum, retain experts who are knowledgeable.
The need to have this knowledge comes right out of Rule 1.1 of the ABA Model Rules of Professional Responsibility, which discusses lawyer competency. I have said it before that in order to to maintain competency, one must understand e-discovery in order to more effectively secure a just and speedy proceeding. In fact, when you read Rules 3.1 through 3.9 of the Model Rules, it speaks generally to the idea that being an ethical advocate on behalf of the client, working with opposing counsel, telling the truth, and not willingly hiding the ball from opposing counsel or the courts is part of being a professional advocate. Essentially, expeditious litigation should not come at the expense of gamesmanship.
There are so many critical questions early on in every matter that must be answered in both a Rule 16 Pretrial Conference and a Rule 26(f) Discovery Conference such as:
How is the data stored?
Where is the data stored?
What are the file types?
How was the data stored?
Is there ephemeral messaging involved?
Are custodians creating, storing, and editing corporate data on consumer-grade apps such as Dropbox?
Is there a data retention and destruction policy in place and is it being adhered to appropriately?
How much will it cost and how many vendors will it take?
Is the search proportional to the total value of the case?
Am I subject to sanctions if I don't get this right?
And, the list can go on!
If we apply what we have learned thus far, if an attorney walks in to a conference unprepared and unknowledgeable to answer the voluminous questions that must be answered, cooperating becomes an unfathomable task! The mere task of having to talk about e-discovery for some lawyers can throw the limbic brain right into overtime!
It is unquestionable that without having the right education, having an intellectual and analytical debate over e-discovery may cause some lawyers to make unfortunate "irrational" or "illogical" decisions when the fear gets funneled down to the neocortex. It’s not wonder why there may be issues cooperating with opposing counsel!
One reason why we see combative behavior as opposed to collaborative behavior is because of the sword and shield metaphor noted above. In other words, tech savvy lawyers using discovery motion proactive alleging e-discovery violations simply to drive up costs so as to prevent the other side from arguing the actual merits is both what I would consider combative adversarialism and proves my argument for attaining more education.
Here’s the good news. Becoming more well versed in e-discovery does not require you to be an expert. Organizations like the Association of Certified E-Discovery Specialists (ACEDS) is a perfect example of an organization committed to educating legal professionals. Their certification exam is the “Gold Standard” (pun intended) in e-discovery knowledge. Chapters are forming all across the country to bring the legal community together to teach valuable concepts on e-discovery to others. I should know, as I recently started the Kansas City chapter.
Plus, there is never a shortage of service provider sponsored webinars to learn various different points of view on important and emerging trends in e-discovery. Other organizations such as Consero, ACC, ILTA, LegalTech, ALA, CLOC, and many others are giving out education. Even if you don’t plan on taking the ACEDS exam, attaining a modicum amount of knowledge and/or working with someone who already has the knowledge such as in-house Litigation Support Directors or trusted and vetted service providers is the way of maintaining competence in a highly complex digital world. What’s more, it will absolutely prevent your limibic brain from going into “fight or flight” response at a discovery conference.
Technology changed how we perform discovery, which changed how we solve problems, which also changed how we cooperate. The age of paper discovery dumps has been replaced by digital data dumps in the terabytes and new competency is required to have effective discourse in cooperation and proportionality.
Stated succinctly in a report on trends in e-discovery, just because "the justice system is adversarial by design does not mean litigants and their counsel should approach every issue in an adversarial way … [as] clients and counsel who refuse to cooperate in discovery may increasingly find themselves facing sanctions”.
Cooperation is not the antithesis of being a zealous advocate, but rather, part of the genetic makeup of what it means to be a litigator. Cooperative Adversarialism doesn’t mean that you cannot play nice with opposing counsel in the discovery process.
Walking into a discovery conference without having the requisite amount of knowledge on e-discovery is doing both your client and injustice and further clogs the court docket. Trying to create a strategic discovery plan when either side doesn’t have the requisite knowledge is like having a battle of wits with someone unarmed. Of course, this can be cured with a spoonful of education.
Hutchens, in her book "Brain Brilliant, said it best:" “By understanding how your emotions influence your thought processes you increase your ability to make better decisions for yourself and you increase your ability to positively influence the decision making process of others. (Known as the art of persuasion and not to be misconstrued as manipulation.)”
About the Author
Daniel Gold is a veteran e-discovery and technology leader with 16 years experience. During his tenure, Gold has consulted with some of the largest law firms and corporations in the country on how to be more productive in and efficient when it comes to e-discovery. A graduate of Syracuse University College of Law, Gold served as a judicial law clerk in the Superior Court of New Jersey and then went on to work as a litigator. He then transitioned from the practice of law to consultative sales. Gold has held held senior level sales positions, served as a Solution Architect, and also the Vice President of an IT serve provider firm. Gold is currently the President of the Kansas City ACEDS chapter, frequently educates legal professionals through CLEs, and is an avid writer on the advancements in legal technology.