Do We Need “Meet and Confer” Rules?

One of the ideas that surfaced in the lively discussions at the OBA’s Civil Litigation program which I co-chaired last week, was the importance of “face time” between counsel, as a means of improving communication, reducing hostility and keeping lawyers focused on the efficient and economical resolution of disputes.

The view was expressed that counsel sometimes adopt a tone in emails that they would not use in person. Someone has described this as “courage from a distance”.

At the break I was introduced to a California practitioner in the audience who informed me that the rules of procedure in that jurisdiction require lawyers to “meet and confer” to attempt to resolve discovery issues.

Lawyers are required to file a declaration confirming they have done so. The California Code of Civil Procedure provides :

2016.040. A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.

There are serious sanctions for breaching this rule. One contributor to the California Continuing Education of the Bar blog warns:

“Take your responsibility to meet and confer very seriously because there’s a big stick associated with it: the court must impose monetary sanctions on any party or attorney who fails to meet and confer in good faith, even if the party subject to the sanction prevails on the discovery motion. CCP §2023.020.”