Speed Dating With An Elephant: A Successful In-class Discovery Exercise

1. Speed Dating With An Elephant:A Successful In-class Discovery Exercise Jan Baker bakerjm3@law.sc.edu Amy Milligan milligal@law.sc.edu

2. First, some context. • Writing in Law Practice - 3 hour summer course. • Two law firms representing opposing parties in civil litigation. • Focus on pre-litigation drafting.

3. Important Course Objectives • To expose students to the drafting skills private practice lawyers need to handle a case in the course of civil litigation; • To enable students to build on the legal writing and research skills they learned in the first year; • Teach students to -examineinformation in its original form and discern information relevant to the litigation; -make strategic decisions about litigation based on the client’s expressed goals, the facts of the case, and the law; -foster the interpersonal skills needed to work cooperatively and collegially with attorney colleagues, opposing counsel, and support staff.

4. Assessment Tools – all in 7 weeks. • Cover Letter and Résumé • Memo to File re: Client Interview • Partner Conference (in class exercise) • Researched Email Office Memorandum • Client Advice Letter • Complaint (Plaintiffs) • Answer (Defendants) • Discovery Assignment (in class drafting) • Motion and Supporting Memorandum (Protective Order for Mental Health Records) • Mediation Statement • Settlement Agreement, Release, Stipulation, and Final Memo to Partner

5. Discovery Night – The “Speed Dating” Plan Round One Round Two Receive Requests from opposing party Answer requests from opposing party Serve Responses • Draft Requests • Interrogatories and Request for Production • Serve Requests

6. Discovery Night - Instructor Prep • Prepare case file materials • Prepare discovery log • Coordinate deadlines for serving requests and responses

7. Sample Discovery Log

8. Discovery Night – Associate Prep • Assigned reading on discovery practice • Discussed good discovery practice: • Rules and purpose • Importance of written discovery • Scope, objections, and privilege • Standards and deadlines • Strategy and discovery plan

9. Discovery Night – Associate Prep • Discussed rules for drafting requests and responses: • Clarity • Attention to detail • Need for instructions and definitions • Non-argumentative tone

10. Discovery Night – The Drafting Process • Worked in teams to develop proposed interrogatories and requests for production from our client. • Used Google Docs and worked together to produce one document for each type of request. • Served opposing counsel. • Followed same process for responses.

11. Skills!!! • Working under deadline pressure • Editing • Teamwork • Experiencing peer adversary match-up • Evaluating reasonable v. unreasonable requests (on both sides) • Evaluating holes in pleadings (on both sides)

12. What came next? • Collective “whew.” • Discovery Motion: motion to compel the production of mental health records based on information disclosed in discovery responses.

13. Adaptable Exercise? Yes! • Works in one class or two • Team drafting helps this exercise work for large or small classes • Fits into litigation timeline or works well as a stand-alone, in-class drafting exercise

14. What worked? • Technology • Drafting teams • Quick pace = boredom buster • Giving students leadership roles • Reflection on drafting skills, not only for discovery, but also for pleadings

15. Instructors’ Notes • A lot of prep, but totally worth it. • Group work helps make their work load manageable (and yours!). • Self and peer-assessment make your work load manageable.

16. For More Information About Toni and Flora . . . www.oneluckyelephant.com RIP David Balding, who passed away on May 9.