Cooperation and Litigation: Thoughts on the American Experience

Abstract

This paper introduces the question of cooperation in litigation in three pieces. First, I will try to reflect at a very general level on why we might want litigators to be pretty adversarial, and recoil somewhat at their trying instead to be cooperative. Second, I will sketch very briefly and in great generality the sorts of problems that seem to arise when laws command cooperative behavior, which should make us cautious about moving too far toward legal commands to cooperate. But these situations are distinguished by the fact that judges ultimately do not have the authority to decide the things on which the law aspires to encourage the parties to cooperate. Finally, I will recognize that twenty-first century litigation — particularly involving e-discovery — makes substantial and substantive cooperation essential and effective. Against that background, it seems that the distinctive thing about the topics on which judges now press for cooperation is that they are matters on which the judge can enter an order resolving the issue if the parties do not agree.