Speed Dating With An Elephant:A Successful In-class

Discovery Exercise

Jan Baker bakerjm3@law.sc.edu

Amy Milliganmilligal@law.sc.edu

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.

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 -examine information 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.

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

Discovery Night – The “Speed Dating” Plan

Round One1. Draft Requests• Interrogatories and

Request for Production

2. Serve Requests

Round Two1. Receive Requests

from opposing party

2. Answer requests from opposing party

3. Serve Responses

Discovery Night - Instructor Prep

• Prepare case file materials• Prepare discovery log• Coordinate deadlines for serving requests and

responses

Sample Discovery Log

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

Discovery Night – Associate Prep

• Discussed rules for drafting requests and responses:– Clarity– Attention to detail– Need for instructions and definitions– Non-argumentative tone

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.

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)

What came next?

• Collective “whew.”

• Discovery Motion: motion to compel the production of mental health records based on information disclosed in discovery responses.

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

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

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.

For More Information About Toni and Flora . . .

www.oneluckyelephant.com

RIP David Balding, who passed away on May 9.