The year 2019 marks two milestones for me. I turned 50 years old, and in the fall I will celebrate 25 years as a member of the Florida Bar. In recent years I have noticed some changes in the practice of law, some of which may be based on changing customs and norms and others which unfortunately seem to reflect on a growing lack of civility and professionalism among lawyers. Here are my thoughts on a few of these issues.

Deposition Objections: Form and Substance Are Not the Same

Did you ever ask opposing counsel in a deposition why they objected to the “form” of your question, and learn that the only basis for the objection is relevance or calls for speculation. Form objections do not include relevancy, lack of predicate or foundation, or calls for speculation; those are trial objections and lawyers sometimes make them in depositions. However, “object to the form” means that the form of the question is improper. For example, it is compound or leading. Form objections must be made at the deposition to preserve them for trial or they are waived.

One of the many good articles on this subject is available in our Florida Bar Journal: “Let's Get Objective About Objections,” J. Evan Gibbs, III, Vol. 90, No. 7, July/August 2016. The trial lawyers section of the Florida Bar also produces a Civil Practice Discovery Handbook, which was last updated in 2016 and has good information on discovery objections and other discovery issues. It is available on the trial lawyers sections' website.

Serve, Don't File, Discovery Requests

There seems to be a growing belief among lawyers that discovery requests and deposition notices must be filed, and that they are invalid if they are not. The Florida Rules of Civil Procedure, however, do not require the filing of discovery requests or responses, or deposition notices. See, e.g., Rules 1.340(a) and 1.350(b), Fla.R.Civ.P. If you review the Florida Rules that concern discovery, you will find that only Rule 1.340(e) references a “filing” requirement, and it relates only to notices of serving interrogatories (but not the interrogatories themselves). See Rule 1.340(e) (“A certificate of service of the interrogatories must be filed, giving the date of service and the name of the party to whom they were directed.”).

I am not sure why the rules have this caveat (if you do, I would love to hear from you), but two things are clear. First, this is the only filing requirement related to discovery requests and responses and, second, courts expect us lawyers to conduct discovery without court intervention. It is for this reason that discovery requests and responses, as well as deposition notices, are generally only to be filed in connection with a motion to compel. Granted, some lawyers may argue that filing discovery requests eliminates all uncertainty about whether and when you served the discovery. However, your discovery requests, responses, objections or notices are not any less valid because they were not filed, as they are not required to be filed in the first place.

Your Place or Mine

When I started practicing law, it was common practice and courtesy for lawyers to agree to the depositions of the parties in their respective lawyers' offices. The plaintiff was deposed in the plaintiff's lawyer's office, and the defendant was deposed in the defendant's lawyer's office (provided of course that both were located in the county where the case was filed or the defendant resides, or as otherwise required by the rules). It seems that these days very few lawyers are willing to agree to such practice and courtesy, which is a shame.

Ask First, File Later

Finally, I have also noticed in recent years an increase in state court practice of parties who file motions for extension of time to respond to complaints and discovery requests without first contacting the opposing counsel to request—and obtain consent for—an agreement on the extension, do not attempt to set such motions for hearing and do not seek agreement from the opposing party even after filing the motion. Oftentimes, the requests sought are lengthy, such as for an additional 30 days to respond to the complaint or discovery at issue.

Notably, the Local Rules of the Southern District of Florida specifically require that lawyers confer with the opposing party “prior to filing any motion in a civil case” except for certain enumerated motions, such as motions to dismiss or for summary judgment. See Local Rule 7.1(1)(a)(3), S.D.Fla.L.R. The Florida Rules of Civil Procedure should incorporate a similar requirement.

In addition to exhibiting a lack of professionalism and civility, such practice also harms the parties, as the parties (i.e., our clients) are presumably paying their lawyers (those not working on a contingency fee of course) to file motions for extension of time that may be unnecessary. And, contingency fee lawyers could seek compensation for such unnecessary motions in fee petitions should their client be the prevailing party on a claim that provides an entitlement to attorney fees. By way of comparison, when lawyers act professionally and civilly, requests for reasonable extensions of time are almost always resolved in just a few moments with a phone call that is perhaps confirmed by the lawyers in a short email or letter, or, when appropriate, an agreed order.

Don't get me wrong. Sometimes a deadline is inadvertently missed and a lawyer feels compelled to immediately get something on file to protect their client. But this should be the exception, and not the rule.

Call First, Send Email Later

At 50 years old, and 25 years into my practice, I now feel OK—although not necessarily happy—that I can talk about the practice of law with reference to the time “when I was a young lawyer.”  Back then, email was the exception, not the rule, and lawyers communicated with each other “the old fashioned way”—by phone or in person.

Speaking directly with opposing counsel allowed us to develop relationships and establish rapport and credibility with opposing counsel that made problem solving, and ultimately case resolution, easier. This simply cannot be accomplished via email, where the tone and intent of a message is often misinterpreted.

To that end, there is a reason why many Judges today insist that lawyers actually speak to each other by phone or in person before allowing a hearing on a contested motion to proceed. It is simply not possible to effectively resolve or at least narrow issues through email alone. While it may sometimes be faster to return a call with an email, or initiate communication via email, there is no substitute for talking directly with your opposing counsel.

This of course is not to say that lawyers should never use email. I use it all the time, and it certainly has made the practice of law easier in many ways. For example, sometimes I will send opposing counsel a list of discovery issues that I want to discuss by phone, which makes the ultimate meet and confer call more productive, as the opposing counsel has a chance to consider the issues and confer with their client before the call.

In the end, one of the most rewarding aspects of practicing law are the relationships we develop with our clients and colleagues. Your opposing counsel today could be the lawyer that refers you a case tomorrow, helps you with a legal issue in an unrelated case, or is your opposing or co-counsel in another case down the road. The time you invest getting to know that lawyer, whether on the phone, over coffee or lunch, or just chatting in the courthouse, will pay dividends for your clients and for you for years to come.

I would love to hear your thoughts on the above issues. Feel free to send me an email at [email protected], call me at 954-933-4400, or, if you are in Lighthouse Point, call me for lunch (on me)!

Marc A. Wites is the founder of The Wites Law Firm, which is located in Lighthouse Point. He represents plaintiffs in personal injury and wrongful death actions, class actions and insurance claims. Wites also is the author of two well-known annual publications on Florida law, including “The Florida Litigation Guide” and “Florida Causes of Action.”