Mark Bennett has been a fixture at the highest levels of the US legal system for decades. Fresh out of law school, he successfully brought the very first case he ever accepted before the Rehnquist Supreme Court in the mid-70s. In 1994, after serving a brief stint as a US magistrate, he assumed a position as US district court judge in Sioux City, Iowa, where he eventually served as chief judge years later.
But it was not until last summer, when he imposed peculiar, industry-ruffling sanctions on a respected trial attorney at a major firm that his views came to the attention of the wider legal community. In what has since become a well known decision that lambastes the state of modern discovery, he required that lawyer to create a firm-wide training video that makes amends for “obstructionist” deposition conduct — a characterization the firm strongly refuted.
An appellate court reversed that ruling in August.
Published below is the first part of Logikcull’s interview with Judge Bennett, where we ask him about the details of that case and his broader opinions about the state of the US justice system and the general inclinations of its practitioners.
One may perhaps draw conclusions from his statements and published opinions as to the judge’s own preferences and inclinations. While we appreciate and very much respect his opinions, we do not by publishing this conversation endorse them.
Logikcull: Let’s set the stage by reading a passage from one your recent opinions. The case is Security National Bank of Sioux City Iowa v. Abbott Laboratories, which is now a very well known case because you imposed a novel sanction where you, as a penalty for abusive deposition conduct, required the attorney in the case before you to create a training video and then distribute it to her firm.
The beginning of that opinion reads, “Something is rotten, but contrary to Marcellus’s suggestion to Horatio, it’s not in Denmark. Rather, it’s in discovery in modern federal civil litigation right here in the United States.”
The opinion goes on, “Discovery—a process intended to facilitate the free flow of information between parties—is now too often mired in obstructionism. Today’s ‘litigators’ are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process…. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught.”
As we were discussing prior to this recording, that case is ongoing so we can’t discuss it in detail. But, judge, I do want to ask, it’s been a while since you wrote that, do you stand by the opinion?
Hon. Mark Bennett: I stood by that opinion since I was in private practice, years before I wrote it. That’s what happens. I’ve written a few law review articles that mention the rise of the “litigation industry” and that’s what it’s all about, you know? It’s all about abusive discovery, ridiculous amounts of discovery — 99 percent of which never winds up in trial.
“Something is rotten… in discovery in modern federal civil litigation right here in the United States.”
Logikcull: Well, so let me ask you about that. I think the number is one or two percent of federal cases go to trial, which would seem to suggest — and you can tell me if I’m wrong — that discovery has become the de facto dispute resolution mechanism in US courts. Do you think that’s a fair assessment?
Bennett: I think that’s a fair assessment. Certainly summary judgment is now the holy grail of litigation because most cases are won or lost at summary judgment. But you know, before we had the Rules of Civil Procedure in 1938, we essentially had trial by ambush. And now we have trial by avalanche. But the interesting thing was, when we had trial by ambush, a much higher percentage of cases went to trial. Now that we have trial by avalanche, very few cases go to trial because the parties simply can’t afford to go to trial because discovery has become way too expensive.
So the cure is rather obvious to me: dramatically reduce the amount of discovery, which would reduce the delay of litigation, the cost of litigation. I mean, it’s really not that complicated. This Abbott case is a good example. I’m not gonna talk about the sanction order, but I’ll talk about what happened at the final pre-trial conference. I was out of town and I came back and my chambers, which are very large… When I walked in the door on a Sunday morning, there were boxes floor to ceiling everywhere I could see in my chambers. I had no idea what they were! On Monday when my judicial assistant came in, I said, “What are all these boxes?” She says, “Those are your exhibits for your upcoming Abbott trial.”
The exhibit list was thicker than the Sioux City phone book! I think the exhibit list was over 500 pages long! So here’s what I said at the final pre-trial conference. They had a bunch of lawyers there of course because that’s usually how big firms operate. And I asked who the lead lawyer was and they told me. And I looked at him and I said, “Well how many of these documents are you ever gonna mention in your closing argument?” And I got this huge blank stare. He was kind of young — a young lawyer. Nice guy.
And so I said, “Have you ever given a closing argument in federal court?” “No.” I said, “Well I guess you want to know how many exhibits you’ll use. What’s the maximum number of exhibits you think you can use in an hour closing argument, because that’s all your getting?” “25” or something, he said. I said, “I doubt if you’ll mention 10 of them!” So why do we have 5,000 exhibits? None of them are going to be relevant to anything that happens in the trial, or very few of them are.
That’s your typical big case. That’s what it looks like. They do all this incredible discovery. The exhibit lists are longer than the Sioux City phone book. And I’m not gonna let a jury be subjected to that because that would be, what I’m calling in a new article, cruel and usual punishment. And I’m just not going to subject juries to that.
“That’s your typical big case. That’s what it looks like. They do all this incredible discovery. The exhibit lists are longer than the Sioux City phone book.”
Logikcull: So you said that this lawyer you’re referring to was a young lawyer — obviously inexperience, hasn’t presented a closing argument before. How would he even know any better? It seems like there’s an education failing there.
Bennett: Oh, that’s a great point! He doesn’t know any better because that’s the way he’s trained — to discover everything to death, largely in search of the smoking gun which practically never exists. But it is how young lawyers are trained, and they don’t have enough trial experience to know better. But the more seasoned trial lawyers who’ve tried cases do know better.
I tried an equally complicated product liability case right around the same time as the Security National Bank case. The defense lawyer was from a mid-sized firm and he had very few documents. He didn’t object to anything (during depositions). No discovery disputes. The trial went smoothly. And when the other side wanted more time for opening arguments, he said, “Fine, they can have part of my time. I don’t need all my time.” Both parties were on the clock, because I put parties on the clock in civil cases. He was a true trial lawyer — he just wanted to get to the heart of the matter. And he got a favorable verdict.
But it wasn’t all this litigation to death, litigation industry-type approach to the case.
“He doesn’t know any better because that’s the way he’s trained — to discover everything to death, largely in search of the smoking gun which practically never exists.”
Logikcull: Let me ask you about something you mentioned earlier, and then we’re going to move along here. But you mentioned two terms, “trial by avalanche” and “trial by ambush.” Can you just briefly describe what you’re talking about?
Bennett: Sure. The old “trial by ambush” was before they had rules of discovery so you basically went to trial with whatever exhibits and evidence you could find on your own and both sides went to trial. There wasn’t any duty to disclose. No mandatory disclosures. No expensive discovery. No expensive production of documents. That’s how civil cases were tried before the Federal Rules of Civil Procedure went into effect in 1938.
I distinguish that with what I call “trial by avalanche,” where you do document dumps with hundreds of thousands of documents that really have little or no relevance to the case. Now part of that is the (fault of) the plaintiffs’ because their document requests are so overly broad, and defendants, in trying to accommodate that, give many documents — most of which have absolutely nothing to do with the central issue in the case. So those are the two extremes: trial by ambush where you get nothing from the other side, and trial by avalanche where both sides dump everything and the world on each other and leave them to figure out what is relevant or what might be admissible at trial.
As told to Robert Hilson, a director at Logikcull. Robert can be reached at email@example.com.
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