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Bulletin Winter 2016

injury and no future medicals, there is little reason to take a doctor’s deposition. The parties should agree that the medical records and bills can be admitted without testimony. Really, has anybody ever gotten someone in the medical profession to testify that the medical bills were not reasonable? Discussion and application of the principles of proportionality in cases of all sizes ... also has benefits for the Bench and Bar. In other Standard Track cases that are a little more complex, the total number of depositions necessary and justified may be six or eight -- not six for each party. Perhaps a deposition of the plaintiff, a Rule 30(b)(5)&(6) deposition of the defendant corporation, a couple of eyewitness or important fact witness depositions, one expert for each side and a doctor’s deposition -- 7 depositions, not 12. Even in Complex Track cases the number of depositions that are really necessary should be discussed in a meaningful way, as opposed to just selecting an arbitrary number. How many Rule 30(b) (6) depositions will really be necessary? One, two, three? How many experts will really be needed by each party and will it be necessary to take their depositions? A lot of really good trial lawyers are relying on the Rule 26(b)(4) information on some experts and are not taking their depositions. In many cases, your experienced trial lawyers know what a particular type of expert says in a particular type of Civil Procedure request for production, or request for admission.” No depositions are allowed absent order of the Court. Discovery in cases assigned to the Standard Track is limited to six depositions per party and each party is limited to “100 single-part discovery request items.” There are no discovery limitations in Complex Track cases, other than as may be imposed by the Court. Unfortunately, it is commonly assumed that there is an absolute right for each party to take six depositions in the Standard Track cases and an absolute right to take an unlimited number of depositions in Complex Track cases. These assumptions are, of course, erroneous pursuant to the wording of the Birmingham Differential Case Management Plan, and also Rules 1(c), 26(b)(2)(B), and 26(f) of the Alabama Rules of Civil Procedure. The problem is, that through oversight, inadvertence or becoming numbed by routinely going through the motions of a discovery conference, the amount of discovery that is really needed, or that is really proportional, is not being discussed between the lawyers or at most of the scheduling conferences. Indeed, the standard scheduling order put into place for the Tenth Judicial Circuit does not contain provisions which would require the parties to have a serious discussion about discovery limitations. The closest thing is the final paragraph which provides blanks for special provisions applying to the case. In many Standard Track cases, each party does not need six depositions. Take the soft tissue car accident cases as an example. A reasonable length deposition should be taken of the two drivers and any plaintiff who was not a driver. Investigating police officers and eyewitnesses will usually talk to you and do not need to be deposed. Since there is no permanent case, and what cross-examination is necessary at trial. An expert deposition is not always necessary. Of course, I would be remiss not to recognize that lawyers are hesitant about agreeing to any discovery limitations. The fear is always there that you will not discover something important to your case. However, the Differential Case Management Plan provides a backstop that should ease this fear. The discovery limitations for the Standard Track may be relieved by the Court upon request by a party. So, if you underestimate the number of depositions you will need, which may happen on occasion, the Court can readily correct your mistake. Members of the Bar are charged with zealously representing our clients and to always put our clients’ interests first. Discussion and application of the principles of proportionality in cases of all sizes and complexity accomplish that. But it also has benefits for the Bench and Bar. The Plaintiff ’s Bar will benefit, because it will once again be able to file smaller cases for deserving clients rather than taking a handout from an insurance company that is pennies on the dollar of the client’s real damages, or turning away such clients because of the economics of the system. The Defense Bar will benefit. You can bill more hours since the Plaintiff ’s Bar as a whole will file more cases than the few big advertisers who are settling most cases without filing. Finally, with application of proportionality principles, cases will move through the court system faster, and with less expense, while recovering higher revenues from filing fees. G Lloyd Gathings is a principal with Gathings Law in Birmingham. Birmingham Bar Bulletin/ Winter 2016 19


Bulletin Winter 2016
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