This is what a lawsuit looks like: Party Discovery

After the plaintiff files his Complaint and defendants file their Answer, the next (and longest) phase of civil litigation is referred to as discovery.  The name evokes excitement and adventure.  For example, Captain George Vancouver of the Royal Navy commanded H.M.S. Discovery in the 1790s as he explored and mapped the Pacific Northwest coastline.  Vancouver named numerous local landmarks after his crew (including Joseph Whidbey, Peter Puget, and Joseph Baker), his employers (the Lords of Admiralty), and his moods (Deception Pass and Useless Bay).  I have fond memories of exploring the full-scale replica of the Discovery at the Royal BC Museum during elementary school field trips in the 1970s.    

Lawyers are much less exciting.

The purpose of discovery in litigation is for each side to gather relevant evidence about the case, both to potentially use at trial if the judge determines it is admissible, but also to explore the strengths and weaknesses of each party’s factual and legal positions.  When I was a very young lawyer, discovery involved a lot of gamesmanship and hiding the ball.  In one notorious case while I was in law school, the Supreme Court of Washington sanctioned my first Seattle law firm after its pharmaceutical company client failed to produce a smoking gun document, later leaked by a whistleblower.  In the last twenty-five years, however, both the rules and legal culture have changed.   A few jurisdictions either relish or can only afford “trial by ambush,” allowing for little or no effective pre-trial discovery.  But today most civil litigants and counsel are expected to be forthcoming, and to avoid unnecessary expense or delay.  Judges, like the parents of squabbling children, hate being dragged in to resolve petty discovery disputes.  Nevertheless, there still are clients who think there must be some kind of “bad document” privilege allowing them to withhold relevant evidence.  And, sadly, there are still lawyers who are willing to enable them.  Even within the technical demands of the rules, some attorneys try to wear their opponents out with exhausting and intrusive demands, or unnecessarily voluminous responses.  Fortunately, the shared goal of resolving cases on their merits generally prevails in the courts where I have litigated.

Of course, time and money are finite resources, and everyone needs to make strategic and tactical choices in discovery.  The process remains adversarial – you need to ask good questions, and your opponent is entitled to raise valid objections.  And vice versa.  Everyone should be able to expect reasonable answers.  Eventually.  Some parties just need a little nudging. 

Like my kids’ summer vacation, at the beginning of the lawsuit it seems like the discovery phase will go on forever.  Then lawyers inevitably procrastinate, scrambling to finish all discovery before the cutoff date in your case schedule.   Civil Rule 26 (Washington conveniently follows the order and most of the substance of the Federal Rules of Civil Procedure) describes the general principles governing the parties’ exchange of discovery requests and responses.  Each party may obtain party discovery from every other party regarding any matter which is relevant to the lawsuit, other than privileged materials (such as communications with your lawyer, spouse, doctor, or priest).  However, discovery should not be “unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.”  (The rules governing the parties’ efforts to gain additional information through third-party discovery are discussed in this episode.)  [Ed. note: Yes, I know the hyperlink to the future doesn’t work.  Yet.]

Specific civil rules regulate each of the various discovery tools lawyers invented over the years.  Requests for production, governed by Rule 34, are the discovery work horse.  Regardless of whether a case involves a contract dispute, discrimination, or personal injuries, lawyers and jurors want to see the paper trail.  When I started my career at a big law firm, clients still spent a fortune paying lawyers to review warehouses full of archived paper or microfilmed documents.  Our firm represented Exxon in numerous lawsuits arising from the 1989 Valdez oil spill.  Many of the young lawyers who started with me spent months or years living on expense accounts in Anchorage’s few hotels, gaining weight and losing spouses. 

Over time, the emphasis in discovery turned to gathering “electronically stored information,” which fortunately for both clients and young litigation attorneys has become increasingly efficient to manage.  Rule 34 also applies to parties’ much rarer requests to inspect other types of tangible things or real property.  For example, when I was a patent litigator, judges and jurors would scratch their heads examining the various plumbing devices, counterfeit Hollywood merchandise, wrinkle-free shirt sleeves, and helicopter parts that the parties produced in discovery.

Rule 33 governs interrogatories, which is a fancy term for written questions.  Interrogatories allow for more tailored inquiries and more precise answers than you can get from staring at a cryptic email chain.  In our court, parties can propound up to forty interrogatories.  Each “distinct subpart” is a separate interrogatory.  This generates Talmudic numerology disputations, because the responding party can choose to stop answering interrogatories once it counts to forty.

The most powerful discovery tool is taking depositions, governed by Rule 30.  Depositions are simultaneously a dress rehearsal for the witness’ trial testimony, as well as a way to set up (or luck into) gotcha soundbites you hope to use effectively with the judge or jury later.  More importantly, depositions are an opportunity to gather key evidence in real time – without having to wait thirty days after posing each question before you read the witness’ sworn answer, no doubt overthought and lawyer-edited to death by then.  As the author of the foremost treatise on evidence observed a century ago, cross-examination is “the greatest legal engine ever invented for the discovery of truth.”  Effectively examining an essential witness at deposition adds more value for a client than lining up some hot shot trial counsel.  A great deposition means there won’t be any trial, or that the trial (or settlement) will be on your terms.

Depositions usually take place in conference rooms.  You can tell from the room’s view whether you are in the offices of a big law firm, a successful plaintiff’s boutique, a private lawyer further down the food chain, a nonprofit advocate, or a government agency.  The view might instead be a reminder you’re still on the road, renting space in a strip mall from some random local process server.  As we did on three occasions when the Gay Softball World Series case took me to Atlanta, Chicago, Dallas, Denver, Houston, Memphis, Minneapolis, Portland, San Francisco, and Seattle.  (Click here for Roger’s GSWS Quiz.)

The lawyers I know refer to depositions as “deps.”  Deps are apparently called “depos” at certain other locations along the legal food chain, or around the country, that I’ve managed to avoid.

Legend has it my defunct former firm’s law library included a VHS tape labelled “Preparing for Your Deposition” that was guaranteed to wipe anyone’s memories clean.  Like in a horror movie, or Bill Gates’ deposition in the Microsoft antitrust case.  Hopefully a good lawyer will instead tell you (1) listen carefully to the question, (2) let the questioning lawyer completely finish talking, (3) pause so every other lawyer, particularly yours, has a chance to make an objection for the record (but of course never for the purpose of coaching witnesses before they answer), (4) make sure you understand the question, (5) take as much time as you need, and (6) honestly answer (7) only that one question.  Number 6 is the most important.  Then (8) stop talking.  No speeches, arguing, or crosstalk, that’s for Oscar campaign clips or self-destructive CEOs who are more loquacious than Bill Gates.  Finally, (9) don’t use grunts, murmurs, and nonverbal signals in your answer.  It’s hard on the hired court reporters, and results in a confusing written transcript.

At the time and place identified in the notice of deposition previously sent to all parties, the court reporter swears in the witness, then starts recording what everyone says with both a microphone and a high-tech stenographic machine.  With proper notice, the deposition may also be videotaped.  The lawyer who “noted” the deposition gets to go first in asking direct examination questions to the opposing party’s witness, or their own witness if the purpose of the deposition is to preserve testimony from someone who won’t be available at trial.  If there are other parties to the lawsuit, on direct each of their lawyers may ask additional questions of interest to that party.  If the witness comes from the opposing party, the lawyer for that side may choose to ask questions at this time.  That counts as “cross examination” for purposes of keeping track of whose turn it is to interrogate the witness, but usually not in the Perry Mason-gotcha-with-leading-questions-to-a-hostile-witness sense.  If you are personally represented at your deposition by a separate lawyer, he or she may also elicit testimony that will give you an opportunity to follow up on prior questions, or to clarify your answers. 

Each attorney can introduce new exhibits to show to the witness, or can ask questions about previously-identified exhibits.  Like an elegantly hosted meal upstairs at Downton Abbey, a smooth deposition is made possible by the minions who located and collated reams of potential exhibits.  As a copy of a new dep exhibit is passed to each lawyer, the court reporter briefly takes her hands off the stenography machine – remember to stop talking for a moment – in order to mark and number the original exhibit.  It may now be shown to the witness.  Afterwards, the court reporter will take the marked original away.  Forever.  Never bring a cherished document or family keepsake into the conference room during a deposition if you suspect there’s the slightest chance some lawyer will snatch it and ask the court reporter to mark it as an exhibit.  Truly painful to watch.

During the dep, direct testimony is followed by cross, then redirect, then re-cross, in a vicious cycle till everyone is worn down, or time runs out.  Otherwise the structure of depositions is much less formal and much more meandering than trial testimony.  During discovery, the standard is not whether it would be appropriate for the lawyer to ask the same question at trial, but whether the “information sought appears reasonably calculated to lead to the discovery of admissible evidence.”  Most objections during a deposition are made for the purpose of preserving and documenting the objection for the record.  The judge will rule on disputed objections later only in the unlikely event anyone ever wants to draw attention to a specific scintillating exchange with this particular witness. 

If the objection involves privilege, a lawyer may instruct the witness not to answer.  Often at this point someone threatens to walk out of the deposition, or to try calling the judge’s chambers, but they seldom follow through.  Meanwhile, the witness waits patiently for the lawyers to finish bickering, then tries to answer the question.  If anyone can remember it.  Next comes the eternal refrain “can we have the court reporter read back the question?”

Depositions are either a big production, or a huge production.  A simple dep is the equivalent of putting on the annual middle school play.  Trust me.  I have taken or defended countless depositions in twenty-five years, and just last month I was tasked with designing the program and then attending opening night of “Dorothy in Wonderland.”  As with even the most amateur theatrical endeavor, every dep consumes an immense amount of time and energy, both in preparation and in performance.  Deps can be also more intrusive and unpleasant than in-your-face experimental improv, and they last even longer.  And each dep cost a fortunate to mount, like the iffy off-Broadway premiere of a vanity project musical.  Afterwards, choosing to have the court reporter transcribe the deposition testimony – often overnight – costs as much as producing an original cast album.   In the very largest cases, key depositions require vast conference rooms and multiple broadband connections to accommodate a cast of thousands, mostly lawyers billing various clients for listening vigilantly as each waits to say “No questions from ________ at this time.” 

In our normal-sized superior court case, the local rules allow each party to take “no more than 10 depositions, with each deposition limited to one day of seven hours; provided, that each party may conduct one deposition that shall be limited to two days and seven hours per day.”  Guess who gets to be the double-feature deposition witness in our case.

But that’s enough lawsuit talk until our next episode.  In the meantime, here are Defendants’first set of discovery requests to me, and here are my responses thirty days later.  Defendants’ responses to my first set of requests for production are due tomorrow…. 

Click here for more information about my lawsuit against Ogden Murphy Wallace PLLC and Patrick Pearce

Fuzzy things

When Post Traumatic Stress Disorder hit me in Fall 2015, the most visible symptom was trichotillomania –  the compulsion to pull out your hair.  I was already familiar with this disorder, which afflicts less than 2% of the population (predominantly women), because I have had a mild case since high school.  At particularly stressful times, without realizing it, I yank at the hair behind my ears.  Pulling my hair out was just another one of the anxiety symptoms I “successfully” coped with during decades of high-functioning dysfunction.

Then PTSD amplified my trichotillomania exponentially.  Every day, all day, I struggle to stop myself from ferociously rubbing my forehead and pulling out the hair on my scalp.  Most of the time I’m unaware it’s happening.  But eventually I notice my arm is blocking my vision, or I feel my forehead throbbing.  By the end of the day my scalp is raw.

Trichotillomania is not just for people living with PTSD, although there is a high correlation.  The Trichotillomania Learning Center, now rebranded as the “TLC Foundation for Body-Focused Repetitive Behaviors,” has a helpful website.  Google sends you to ghastly Pinterest photos of women who have mowed broad bald swaths across their skulls, or compulsively plucked and then eaten their eyebrows and eyelashes.  (Yes we know it’s gross.)  Although my own version of this compulsion hurts and makes me terribly self-conscious, I am relatively fortunate.  As a middle-aged dad with thinning hair, my localized handiwork is pretty inconspicuous.  I just have to avoid posting Facebook selfies showing how my hairline has receded more on the right side than the left, leaving a reddened patch of skin in its place.  Hopefully no one notices me too much as I poke away during the day.  Other than my children, who delight in calling out “Hands, Papa!”  

People embrace various techniques to cope with trichotillomania.  I found my fuzzy things serendipitously.  Long ago I had a favorite stress squeezeball, a miniature blue and green Earth I’d gotten as a lefty marketing promotion somewhere.  It was just the right size and soothing squishiness.  So when the scalp-rubbing began driving me crazy, I went to the basement and sorted through all the kids’ old balls to see if I could replace my lost globe.  I felt like Goldilocks, frustrated to discover each was too hard, or soft, or big, or small.  Finally, I found one that felt just right – but it wasn’t a ball after all.  It was a balled-up oversized pipe cleaner, left over from some forgotten art project.  I now buy them in bulk at Michael’s craft store, then cut each up into eight-inch strips.  They’re soft and squeezable, but you can also fiddle with them, or use them to tie up your fingers.  They work pretty well at keeping my hands occupied, or at grabbing my attention as I see them approach my forehead.  But they’re not 100% effective.  And they eventually wear out after a few heavy-duty hours, breaking up into fuzzy fragments with sharp metal protrusions.  In a pinch I once tried using regular-sized pipe cleaners, but they just poked me.  I still end most days with a sore forehead, but it could be worse.

When I was still general-counseling at the university, I felt much less self-conscious during meetings if I fiddled with my fuzzy things rather than picking at my forehead.  For further camouflage – and to impress my mother with my penny-pinching – I bought only the brown ones.  They’re $1.99 for a 6.5 foot brown strand at Michael’s, rather than $2.99 for the more luxurious colored ones.  And on some level the boring brown ones felt a little less obtrusive. 

For more than a year, I left a trail of tattered brown fuzzy remnants behind me.  Last summer when Vancouver Men’s Chorus travelled to Denver to sing at the quadrennial festival of LGBT choruses, one of my friends from Seattle Men’s Chorus retrieved a brown fuzzy he’d found on the sidewalk in front of his hotel.  The shallows at our favorite beach on Whidbey Island are filled with short brown seaweed strips at low tide, so it looks like all my brown fuzzies have swum back to find me.

One day I ran out of brown fuzzy things at work, and had to rely on one of the kids’ purple ones during an important presentation.  It made me feel like a peacock with OCD.  I felt compelled to take the opportunity afterwards to privately come out to an important client about my disability, convinced he must have been staring at me throughout the meeting.  Of course he hadn’t noticed anything, but he was gracious nonetheless.  (It turns out the parents of self-conscious teens were right all along – most people are too busy worrying about themselves to pay attention to you.)

Even if they weren’t too oblivious to notice my fuzzy things, most folks in the Pacific Northwest are much too polite (and passive-aggressive) to comment on others’ kinks if they did notice.  Except for baristas and children.  And other anxious people.  Like the Uber driver who let me hold her squeeze ball.  Or last fall, when a stranger in the grocery line admired my fuzzy thing, then showed me the elaborate metal clockwork device she uses to sooth herself.   She claimed she’d made it herself, but it looked like she’d actually broken it off the set of Wicked.  (It turns out she was prescient – fidget spinners are this year’s pet rock or Pokemon Go.  I tried stealing my early-adopting daughter’s metal spinners, but they don’t work for me.)

After I gave up on salvaging my job and chose to come out publicly as a person living with mental illness, I abandoned my cheap brown fuzzy things.  Instead, I started splurging on the fluffy green ones.  They’re more comfortable, last longer, and green has always been my favorite color.  And I don’t want to hide any more.

Soon after my PTSD symptoms erupted in 2015, I started rehearsing for my last concerts with Seattle Men’s Chorus.  The commute from Bellingham was miserable, but I wanted to be part of Dennis Coleman’s final holiday concert before he retired after 35 years.  And to earn my 15 year chorus pin.  Then as my symptoms continued to get worse, I began to worry that I wouldn’t be able to perform on stage without either pulling out my hair or fiddling with fuzzy things.  Fortunately, it turned out I can make it through actual performances without any embarrassing incidents.  (TMI:  so far sex is the only other time I’m sufficiently focused to evade trichotillomania.)

I began rehearsals with Vancouver Men’s Chorus in January 2016, just as things with my abusive former colleague were really going to hell.  I soon upped my fuzzy thing consumption like a chain smoker on Death Row.  By the time our first concert approached, I was fiddling with two or three fuzzy things at a time.  I could tell our conductor was alarmed, but also that he was much too gracious and Canadian to say anything to me.  So I took Willi aside and assured him I would be fine during performances.    

Willi was right to be concerned.  PTSD also amped up my social anxiety, particularly around gay men.  The result is an awkward paradox – besides my family, spending time in Vancouver with my chorus brethren has been the brightest spot in the darkness, but it’s also excruciating.  I spend most of my nonsinging time alone clinging to the wall, and go through more fuzzy things in an evening of rehearsal or socializing with the chorus than I consume in several days of ordinary life.  But it’s still worth it.  And despite living through a series of biblical plagues over the last two years, and despite being resigned to my bleak professional and social prospects here in Bellingham, I can’t quite give up being hopeful.  (It’s probably yet another curse.)  Chorus helps. 

This month I again performed with Vancouver Men’s Chorus in six sold-out shows on Granville Island.  Closing night was amazing, even though by the final curtain I had lost all my green fuzzy things.  (I suspect my friend Jon stole the last one.)  The audience was marvelous, we sang particularly well, I remembered more of my choreography than ever, and the kids were with Jason and Brenden for another week.  Rather than slink away home, I decided I was brave enough to go out to the bar with everyone afterwards, even without any fuzzy things.

Numbers is a longstanding institution in Davie Village, a neighborhood bar that welcomes all types to several floors of dancing, pool, drinking, talking, and karaoke.  I have been coming to Numbers since I graduated from law school, which is longer than my drinking buddy Jon has been alive.  And I have many happy memories from the place, mostly from the early nineties before the Internet ruined gay life, and before having children made me too tired for carousing.  But now those happy Vancouver memories include closing Numbers for my first time ever – further surprised to discover the bar now has a liquor license that goes till 3 am.  I had a blast, drinking and chatting with friends and strangers.  (But not flirting or dancing.  Baby steps.)   After entering the karaoke booth to cheerlead several divas from the chorus, arguably I even participated in karaoke for the first time.  But only if you count harmonizing along with half the chorus in Whitney Houston’s “I Wanna Dance With Somebody.”  Which I don’t, because I’m both gay and suffer from compulsive disorders.  Like trichotillomania.  

In any event, I had another great night at Numbers.  And for the first time in over a year, despite being surrounded by other gay men, I went for more than five waking hours without either pulling my hair or clinging to my fuzzy things.

As with so many faery midsummer night fantasies, the next morning I woke up with life back to normal, clutching at fuzzy green straws.  But I can dream.

I am Kimmy Schmidt

Last month Netflix released the third season of Unbreakable Kimmy Schmidt, the alarmingly funny new show from the creators of 30 Rock.  It’s your typical fish-out-of-water-in-the-big-city story, except in this case our eponymous heroine spent the last fifteen years before moving to New York trapped in an underground bunker with an apocalyptic preacher.  Last year co-star Tituss Burgess sang a couple of concerts with Seattle Men’s Chorus, and proved to be a talented and humble guest.  The entire cast is marvelous, but the writing is the real star.  As Slate’s reviewer observed, the show’s dark, smart, and zany humor is too indigestibly dense for extended binge-watching.

Before diving into the new season, I realized I hadn’t watched the last few episodes of Season 2, including a standout guest arc from co-creator Tina Fey.  She plays Dr. Andrea Bayden, a distinguished Manhattan shrink.  Except Kimmy first encounters her in the episode “Kimmy Meets A Drunk Lady!,” when Andrea pours herself into Kimmy’s late night Uber after yet another wild night on the town.   It turns out uptight “Day Andrea” is used to waking up in strange locations with no memory of “Night Andrea” or her antics.  (As Day Andrea says, “It’s called compartmentalizing, and it’s not a problem, because I know the words to describe it.”)  Eventually “Night Andrea” manages to take over the body full time, so by the end of the season Kimmy loses her therapist to one last bender and then rehab.

As a person living with PTSD, I recognized some of the vestiges of Kimmy’s trauma even before meeting Dr. Andrea.  In an earlier episode, she runs into a survivor of the war in Afghanistan who mistakes her for a fellow veteran.  Kimmy survived fifteen years in the bunker with the Reverend and her sister wives by cultivating spectacular coping mechanisms.  Those same habits turn out to be only mildly maladaptive in the show’s surreal version of Manhattan.  But as one of the Andreas points out, “When you shove your problems down, they’re gonna bust out in weird ways.”  Like Kimmy’s pattern of responding to attempts at intimacy with a knockout punch.

What I found most interesting from Dr. Andrea’s intervention is that Kimmy also suffers from codependency.  Andrea quickly zeroes in on unresolved issues from childhood that are interfering with Kimmy’s ability to enjoy healthy relationships.  So Kimmy tracks down her long-lost mother, played by Lisa Kudrow.  Mom is off attempting to set roller coaster riding records at Disneyworld.   (Mom’s explanation for her odd hobby:  “Sometimes you just want to scream your head off, and a roller coaster is the only place no one looks at you weird.”)

Kimmy’s PTSD and her codependency are connected.  If Kimmy had a different kind of mother, she would never have fallen into the Reverend’s clutches.   Quite literally – Kimmy finally remembers the Reverend encountered her alone after her classmates left her in the dust walking to high school, because her harried under-aged single mom never taught Kimmy to tie her shoelaces.

After sharing several exhilarating rides, frank talk, and old-fashioned high fives, Kimmy realizes she didn’t come to Florida to confront her mother after all.  Instead, she says, “There’s nothing I can do that will unkidnap me, or fix my childhood.  And I just have to accept that.”  Me too.

I’ve never been to Disneyworld myself, even though I love roller coasters.  (It’s a family joke that when my parents finally went to Florida years ago, only my spoiled youngest brother got to go with them.)  I’ve been waiting for my one of my scaredy-cat children to go on rides with me.  Unfortunately, Oliver is the shortest kid in third grade.  Maybe I should take my mom for her 75th birthday instead.