Illinois Association of Defense Trial Counsel
P.O. Box 7288, Springfield, IL 62791
IDC Quarterly Vol. 11, No. 4 (11.4.38)
Civil Affairs
By: Darlene Strickland and Eugena A. Whitson-Owen
Moore & Maisel, Chicago
“So let us begin anew—remembering on both sides that civility is not a sign of weakness, and
sincerity is always subject to proof.”
—John F. Kennedy, Inaugural Address
Friday, January 20, 1961
Personal Consultation and Reasonable
Attempts to Resolve Differences
At the core of civility is respect – for ourselves, for each other, and ultimately for our justice
system. At the core of our system is the fair representation of opposing perspectives and
interpretations. As lawyers, we are called upon in this system to fulfill two roles that carry an inherent
tension. We must both vigorously represent the differing interests of our clients and yet cooperate with
one another in the truth-seeking process. Each role requires its own skills and striking a balance
between the two presents one of the most challenging aspects of our profession. Neither is less
important. If we fail at either one, so does the system. Nonetheless, it is apparent that our profession
accords more respect and effort to the former rather than the latter. We are better trained at
obfuscation in the name of representation, than we are at communication in the name of cooperation.
Modern practice places too little emphasis on, and devotes too little time to, developing working
relationships with opposing counsel toward cooperation. As a result, incivility too often becomes the
hallmark of relationships with opposing counsel, rather than cooperation. Nowhere is this more
apparent than during the discovery process.
The problem is by no means new. The Illinois Supreme Court has long been admonishing parties
for failing to cooperate in discovery and has urged the bar “to use the tools of discovery in a manner
consistent with their purposes rather than for purposes of obstruction and harassment.” Spiller v.
Continental Tube Co., 95 Ill. 2d 423, 431 (1983). See also Ostendorf v. International Harvester Co.,
89 Ill. 2d 273, 282 (1982); Williams v. A.E. Staley Manufacturing Co., 83 Ill. 2d 559, 564-65 (1981);
People ex rel. General Motors Corp. v. Bua, 37 Ill. 2d 180, 197 (1967).
Neither is our resort to abusive discovery tactics and incivility something new. When an attorney
attempts to use discovery rules and sanctions as weapons in a war of inconvenience, instead of
the truth-seeking purposes for which they were designed, he does a disservice not only to the
court and his colleagues at the bar, but also to his client, since his pettifogging makes more
difficult a realistic review of the merits of the client’s claim or defense.
83 Ill. 2d at 565. Unfortunately the court’s words have lost none of their relevance.
The consequences of our failure to foster cooperation with each other was foretold by the Illinois
Supreme Court 35 years ago: “[T]he increasing complexity and volume of present-day litigation
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Illinois Association of Defense Trial Counsel
P.O. Box 7288, Springfield, IL 62791
IDC Quarterly Vol. 11, No. 4 (11.4.38)
involves frequent recourse to discovery procedures, [and seeking judicial intervention in discovery
before consultation between counsel and good faith efforts to resolve differences] would serve only to
inhibit pretrial settlements, increase the burden of already crowded court calendars, and thwart the
efficient and expeditious administration of justice.” Williams at 83 Ill. 2d 559; paraphrasing Monier v.
Chamberlain, 35 Ill. 2d 351, 357 (1966). Although the additional complexities of litigation in the
twenty-first century may seem to have put a solution further beyond our grasp, we have found that
many suggestions for achieving civility and cooperation during discovery revolve around a common,
and surprisingly simple, theme. That theme is to adhere to the two main requirements of Illinois
Supreme Court Rule 201(k) – “personal consultation and reasonable attempts to resolve differences.”
Rule 201(k) provides:
The parties shall facilitate discovery under these rules and shall make reasonable attempts to
resolve differences over discovery. Every motion with respect to discovery shall incorporate a
statement that counsel responsible for trial of the case after personal consultation and reasonable
attempts to resolve differences have been unable to reach an accord or that opposing counsel
made himself or herself unavailable for personal consultation or was unreasonable in attempts to
resolve differences.
S. Ct. Rule 201(k) (West 1995).
Paragraph (k) was added to Rule 201 in 1974. Rule 201(k) was amended in 1995 to remedy several
discovery problems associated with modern litigation. Language was added to encourage attorneys to
try and resolve discovery disputes on their own without court intervention and to require attorneys
responsible for trial of the case to have or attempt a personal consultation before initiating a discovery
motion. For example, the rules committee cited the problem of junior attorneys, who are not
ultimately responsible for cases, perpetuating discovery disagreements. S. Ct. Rule 201, Committee
Comments, Paragraph (k) (West, 1995).
Certain developments in modern-day practice are adding even more impediments to meeting these
requirements. We are increasingly pressured to spend less time and apply more technology to many
areas of our practice. The result in some instances is an over-application of artificial intelligence and
an under-application of human intelligence. The problem sometimes begins with the discovery
requests, themselves. To save time and money, we rely more and more on forms generated with little
or no lawyer input. Standard plaintiff interrogatories are sent to co-defendants, auto interrogatories are
issued in construction cases, notices of depositions for irrelevant witnesses are sent. Time is wasted,
delays compound and frustrations build.
We cannot satisfy the requirement for personal consultation between counsel responsible for trial
by unilateral communication via form letters generated by computer and support staff. Nor can we
consult personally when voice-mail systems and staff are used as gauntlets to direct communication
with trial counsel. A reasonable attempt to resolve
differences cannot be achieved by a barrage of cryptic e-mails. Rather, this attempt requires the
exchange and understanding of ideas between lawyers who know their case.
To be more successful in our roles as truth-seekers, we must view the call for personal consultation
and a reasonable attempt to resolve differences as vehicles for building a relationship of trust and
respect that will last the life of each case. We must make them more than obligatory and formulaic
steps to be taken before seeking judicial intervention. Some of our colleagues have made the
following suggestions to bring civility, cooperation and more meaning to the discovery process:
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Illinois Association of Defense Trial Counsel
P.O. Box 7288, Springfield, IL 62791
IDC Quarterly Vol. 11, No. 4 (11.4.38)
• Make it your practice to have a telephone conference with opposing counsel at the beginning
of each new matter simply for purposes of introduction, general discussion of the case or
initial pleading questions.
• Personally consult with opposing counsel to discuss the informal exchange of information
and documents before initiating written discovery. This could lead to early settlement or help
in formulating written discovery requests that are meaningful to the case.
• In more complex cases, follow the model under Rule 26(f) of the Federal Rules Of Civil
Procedure and set up a conference among counsel before initiating discovery to develop a
discovery plan.
• Personally discuss, with the goal of resolving, your objections to written discovery with
opposing counsel before drafting them.
• Confer to avoid anticipated areas of contention before difficult depositions take place.
• Finally, approach each consultation civility and as an opportunity to build a working
relationship with opposing counsel that will lead to a better understanding of the case for all
concerned.
Most of these measures are procedures that can be as easily incorporated into law practices as are
diaried status reports to a client.
So let us begin anew by reminding ourselves, as well as our clients, of the importance of devoting
time to cooperation and civility in discovery. “Discovery is intended as, and should be, a cooperative
undertaking by counsel and the parties, conducted largely without court intervention, for the purpose
of ascertaining the merits of the case and thus promoting either a fair settlement or a fair trial.”
Williams, 83 Ill. 2d at 566. At the core of our success, as well as that of our clients, is our ability to
participate in the discovery process with civility and cooperation.
ABOUT THE AUTHORS:
Darlene Strickland is a partner with the Chicago firm of Moore & Maisel. She concentrates her practice in
the areas of product liability, construction liability and premises liability, including third-party assaults. Ms.
Strickland received her J.D. from Loyola University School of Law in 1992. She is a member of the
American and Women’s Bar Associations as well as IDC and DRI.
Eugena A. Whitson-Owen is the senior associate at Moore & Maisel. She is a 1996 graduate of John
Marshall Law School. Ms. Whitson-Owen concentrates her practice in the areas of general commercial
litigation, medical device and toxic torts liability and appellate advocacy. She is also an adjunct professor at
John Marshall Law School where she teaches Legal Writing and Appellate Advocacy. She is a member of
IDC and DRI.
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