Bar Journal - December 1, 2002
New Hampshire Bar Association Litigation Guidelines
Adopted By The New Hampshire Bar Association Board of Governors on December 2, 1999
The following is a set of Litigation Guidelines adopted by the Board of Governors of the New Hampshire Bar Association to serve as aspirational goals for its members. The guidelines represent a means of maintaining civility in New Hampshire trial practice. While certain of these Litigation Guidelines do not have the force of law or court rule, Bar members are encouraged to incorporate the spirit of the guidelines into their legal practices. These guidelines are intended to proclaim that conduct that may be characterized as uncivil, abrasive, abusive, hostile or obstructive, impedes the fundamental goal of resolving disputes rationally, peacefully and efficiently. Such conduct tends to delay and often to deny justice.
Those guidelines set forth herein which are aspirational only are not to be used as a basis for litigation, liability, discipline, sanctions or penalties of any type.
1. CONTINUANCES AND EXTENSIONS OF TIME
- First requests for reasonable extensions of time to respond to litigation deadlines, whether relating to pleadings, discovery or motions, should ordinarily be granted as a matter of courtesy unless time is of the essence. A first extension should be allowed even if counsel requesting it has previously refused to grant an extension.
- After a first extension, any additional requests for time should be dealt with by balancing the need for expedition against the deference one should ordinarily give to an opponent's schedule of professional and personal engagements, the reasonableness of the length of extension requested, the opponent's willingness to grant reciprocal extensions, the time actually needed for the task, and whether it is likely a court would grant the extension if asked to do so.
- A lawyer should advise clients against the strategy of granting no time extensions for the sake of appearing "tough."
- A lawyer should not seek extensions or. continuances for the purpose of harassment or prolonging litigation.
- A lawyer should not attach to extensions unfair and extraneous conditions. A lawyer is entitled to impose conditions such as preserving rights that an extension might jeopardize or seeking reciprocal scheduling concessions. A lawyer should not, by granting extensions, seek to extract a concession disproportionate to the relief requested.
2. SERVICE OF PAPERS
- The timing and manner of service of papers should not be used to the disadvantage of the party receiving the papers.
- Papers should not be served sufficiently close to a court appearance so as to inhibit the ability of opposing counsel to prepare for that appearance or, where permitted by law, to respond to the papers.
- Papers should not be served in order to take advantage of an opponent's known absence from the office or at a time or in a manner designed to inconvenience an adversary, such as late on Friday afternoon or the day preceding a secular or religious holiday.
- Service should be made personally or by facsimile transmission when it is likely that service by mail, even when allowed, will prejudice the opposing party.
3. WRITTEN SUBMISSIONS TO A COURT, INCLUDING BRIEFS, MEMORANDA, AFFIDAVITS AND DECLARATIONS
- Written briefs or memoranda of points and authorities should not rely on facts that are not properly part of the record. A litigant may, however, present historical, economic, or sociological data if such data appear in or are derived from generally available sources.
- Neither written submissions nor oral presentations should disparage the intelligence, ethics, morals, integrity or personal behavior of one's adversaries, unless such things are directly and necessarily in issue.
4. COMMUNICATIONS WITH ADVERSARIES
- Counsel should at all times be civil and courteous in communicating with adversaries, whether in writing or orally.
- Letters should not be written to ascribe to one's adversary a position he or she has not taken or to create "a record" of events that have not occurred.
- Letters intended only to make a record should be used sparingly and only when thought to be necessary under the circumstances.
- Unless specifically permitted or invited by the court, letters between counsel should not be sent to judges.
- Counsel should not lightly seek court sanctions.
- Depositions should be taken only where actually needed to ascertain facts or information or to perpetuate testimony. They should never be used as a means of harassment or to generate expense.
- In scheduling depositions, reasonable consideration should be given to accommodating schedules of opposing counsel and of the deponent, where it is possible to do so without prejudicing the client's rights.
- When a deposition is noticed by another party in the reasonably near future, counsel should not notice another deposition for an earlier date without the agreement of opposing counsel.
- Counsel should not attempt to delay a deposition for dilatory purposes but only if necessary to meet real scheduling problems.
- Counsel should not inquire into a deponent's personal affairs or question a deponent's integrity where such inquiry is irrelevant to the subject matter of the deposition.
- Counsel should refrain from repetitive or argumentative questions or those asked solely for purposes of harassment.
- Counsel at deposition should limit objections to those that are well founded and necessary for the protection of a client's interest Counsel should bear in mind that most objections are preserved and need be interposed only when the form of a question is defective or privileged information is sought or to enforce a limitation on depositions or evidence directed by the court or to present a motion pursuant to Fed.R.Civ.P. 30(d).
- While a question is pending, counsel should not through objections or otherwise, coach the deponent or suggest answers.
- Counsel should not direct a client to refuse to answer questions unless they seek privileged information or are manifestly irrelevant or calculated to harass. Counsel shall not direct the deposition conduct of a non-client witness.
- Counsel shall not make any objections or statements which might suggest an answer to a witness or which are intended to communicate caution to a witness with respect to a particular question. There should be no lengthy or narrative objections. Counsel's statements when making objections and any explanation of the objection, if any is necessary, shall be succinctly stated, without being argumentative and without attempting to suggest to the witness any particular or desired response. Further explanation of the objection should be provided only if opposing counsel requests clarification, and such further explanation should be succinctly and directly stated. Where more extensive discussion is required on the record, counsel should consider excusing the deponent during such discussion.
- Counsel should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer. Parties and their counsel are expected to act reasonably, and to cooperate with and be courteous to each other and to deponents at all times during the deposition, and in making and attempting to resolve objections.
- Opposing counsel shall provide to the witness' counsel a copy of all documents shown to the witness during the deposition. The copy shall be provided either before the deposition begins or contemporaneously with the showing of each document to the witness. The witness and his or her counsel do not have the right to discuss documents privately before the witness answers questions about them.
6. DOCUMENT DEMANDS
- Demands for production of documents should be lim ited to documents actually and reasonably believed to be needed for the prosecution or defense of an action and not made to harass or embarrass a party or witness or to impose an inordinate burden or expense in responding.
- Demands for document production should not be so broad as to encompass documents clearly not relevant to the subject matter of the case.
- In responding to document demands, counsel should not strain to interpret the request in an artificially restrictive manner in order to avoid disclosure.
- Documents withheld on the grounds of privilege should comply with local rule and current case law requirements of a detailed privilege log.
- Counsel should not produce documents in a disorganized or unintelligible fashion, or in a way calculated to hide or obscure the existence of particular documents.
- Document production should not be delayed to prevent opposing counsel from inspecting documents prior to scheduled depositions or for any other tactical reason.
- Interrogatories, while an appropriate discovery tool, should never be used to harass or impose undue burden or expense on adversaries.
- Interrogatories should not be read by the recipient in an artificial manner designed to assure that answers are not truly responsive.
- Objections to interrogatories should be based on a good faith belief in their merit and not be made for the purpose of withholding relevant information. If an interrogatory is objectionable only in part, the unobjectionable portion should be answered.
8. MOTION PRACTICE
- Before filing a motion, counsel should engage in more that a mere pro forma discussion of its purpose in an effort to resolve the issue.
- A lawyer should not without good reason force his or her adversary to make a motion and then not oppose it.
9. DEALING WITH NON-PARTY WITNESSES
- Counsel should not issue subpoenas to non-party witnesses except in connection with their appearance at a hearing, trial or deposition. (RSA 516:3)
- Deposition subpoenas should be accompanied by notices of deposition with copies to all counsel. (RSA 517:4; RSA 516:4; RSA 516:5)
- Where counsel obtains documents pursuant to a deposition subpoena, copies of the documents should be made available to the adversary at the adversary's expense even if the deposition is cancelled or adjourned.
10. EX PARTE COMMUNICATIONS WITH THE COURT
- A lawyer should avoid ex parte communication on the substance of a pending case with a judge (or his or her law clerk) before whom such case is pending. (Rule 3.5 N.H. Rules of Professional Conduct)
- Even where applicable laws or rules permit an ex parte application or communication to the court, before making such an application or communication, a lawyer should make diligent efforts to notify the opposing party or a lawyer known to represent or likely to represent the opposing party and should make reasonable efforts to accommodate the schedule of such lawyer to permit the opposing party to be represented on the application, except that where the rules permit an ex parte application or communication to the court in an emergency situation, a lawyer should make such an application or communication (including an application to shorten an otherwise applicable time period) only where there is a bona fide emergency such that the lawyer's client will be seriously prejudiced by a failure to make the application or communication on regular notice.
11. SETTLEMENT AND ALTERNATIVE DISPUTE RESOLUTION
- Except where there are strong and overriding issues of principle, an attorney should raise and explore the issue of settlement in every case as soon as enough is known about the case to make settlement discussions meaningful.
- Counsel should not falsely hold out the possibility of settlement as a means for adjourning discovery or delaying trial.
- In every case, counsel should consider whether the client's interest could be adequately served and the controversy more expeditiously and economically disposed of by arbitration, mediation or other forms of alternative dispute resolution.
12. TRIALS AND HEARINGS
- Counsel should be punctual and prepared for any court appearance.
- Counsel should always deal with parties, counsel, witnesses, jurors or prospective jurors, court personnel and judicial officers with courtesy and civility.