Therefore one hundred victories in one hundred battles is not the most skillful. Seizing the enemy without fighting is the most skillful. War is of vital importance to the state and should not be engaged carelessly. Sun Tzu, The Art of War, 6th Century B.C.

All trial lawyers would agree that unnecessary discovery disputes represent the single most negative aspect of practicing law. They are expensive, aggravating, time-consuming and often times unnecessary. Common examples include unprofessional conduct during the course of a deposition, a scorched-earth approach calculated to bury the opposition with mindless written discovery, and file-churning to generate attorney’s fees. But sometimes there are legitimate disputes, assertions of privilege for example, that create a stalemate. And sometimes these problems are ongoing. When this happens, it is helpful to use a Discovery Referee.

As a Discovery Referee under CCP § 638 or § 639, I can quickly identify the issues, provide ways to move through the dispute and get the parties pointed back in the right direction. Metaphorically, it is not unlike the experiences of Morihei Ueshiba, who founded the martial art of Aikido in the late nineteenth century. Ueshiba described the submission of an opponent as an energy unifying art that would re-direct the aggressor to the right path. I have found that once the true nature of the dispute is revealed, and discussed, there are effective ways to re-direct the parties on a course that eliminates the dispute and, of course, ensures that each lawyer is able to fully and zealously represent his or her client all within the law.

In my experience, the parties “come around” after a session or two and actually start working better with one another. Although they may continue to have disputes on some level, the parties usually experience an improved level of professionalism which, in turn, creates a genuine opportunity to resolve future problems informally. I have found this to be true for disputes over written discovery as well as deposition conduct. If the parties continue to need help, however, I can assist by requiring briefs and issuing an order that allows the parties to move forward.

If you find yourself at war, consider using a referee. It can save time, money, and unnecessary grief that might be plaguing your case. Know your enemy, know yourself.