1. General Statement
a. Lawyers should make reasonable
efforts to conduct all discovery by agreements.
b. A lawyer should not use any form of discovery, or the
scheduling of discovery, as a means of harassing opposing counsel
or his client.
c. Requests for production should not be excessive or designed
solely to place a burden on the opposing duration and
unpleasantness of any case.
2. Scheduling lawyers should, when practical, consult with opposing counsel before scheduling hearings and depositions in a good faith attempt to avoid scheduling conflicts.
3. Discussion
a. General Guidelines
(1) When scheduling hearings and
depositions, lawyers should communicate with the opposing counsel
in an attempt to schedule them at a mutually agreeable time. This
practice will avoid unnecessary delays, expense to clients, and
stress to lawyers and their secretaries in the management of the
calendars and practice.
(2) If a request is made to clear time for a hearing or
deposition, the lawyer to whom the request is made should confirm
that the time is available or advise of a conflict within a
reasonable time (preferably the same business day, but in any event
before the end of the following business day).
(3) Conflicts should be indicated only when they actually exist
and the requested time is not available. The courtesy requested by
this guideline should not be used for the purpose of obtaining
delay or any unfair advantage.
b. Exceptions to General Guidelines.
(1) A lawyer who has attempted to
comply with this rule is justified in setting a hearing or
deposition without agreement from opposing counsel if opposing
counsel fails or refuses promptly to accept or reject a time
offered for hearing or deposition.
(2) If opposing counsel raises an unreasonable number of calendar
conflicts a lawyer is justified in setting a hearing or deposition
without agreement from opposing counsel.
(3) If opposing counsel has consistently failed to comply with
this guideline, a lawyer is justified in setting a hearing or
deposition without agreement from opposing counsel.
(4) When an action involves so many lawyers that compliance with
this guideline appears to be impractical, a lawyer should still
make a good faith attempt to comply with this guideline.
(5) In cases involving extraordinary remedies where time
associated with scheduling agreements could cause damage or harm to
a client's case, then a lawyer is justified in setting a hearing or
deposition without agreement from opposing counsel.
As an additional resource, The American College of Trial Lawyers updated its Codes of Pretrial and Trial Practice Codes in 2009. The American College of Trial Lawyers was founded in 1950 and is composed of the best of the trial bar in the United States and Canada. Fellows are carefully selected from among those who represent plaintiffs and those who represent defendants in civil cases; and those who prosecute and those who defend persons accused of crimes. The College speaks with a balanced voice and strives to improve and elevate the standards of trial conduct, the administration of justice and the ethics of the profession. The Codes of Pretrial and Trial Practice can be found here: The Codes of Pretrial and Trial Practice.
PDF of Standards of Litigation Conduct