Wednesday, November 30, 2011

Take Two Aspirin


When a case is proceeding along the litigation track, instead of collaboration or mediation, chances are better than good that the client will receive requests for discovery.  For those of you lucky enough never to have been involved in a legal dispute, discovery is a scripted game in which each side has the right to obtain information from the other.  Some of that information may take the form of written answers to written questions.  Some of it is providing documents in response to written requests.  Some of it is admitting or denying written statements.  Some of it is verbally answering verbal questions.  The first three types are the most common, and the responses are due to the other side in thirty days, not a lot of time.  The client may be asked up to 30 written questions, and the number of documents that may be requested is limitless.  Needles to say, discovery is overwhelming and unpleasant.  What we have told our clients in the past is to break up the task into smaller chunks and do a little bit each day until it's done, because that will make it easier.  Turns out we've been wrong.
In Chapter 6 of The Upside of Irrationality, Dan Ariely discusses human adaptation.  His conclusion is that if you are doing something unpleasant, you adapt to the experience.  Once you take a break, however, two things happen:  first, the adaptation to the unpleasant event goes away; and second, because you remember it as unpleasant, it is harder to start the activity up again.  Actually, this is easier to explain when you look at it in reverse.  Imagine doing something pleasurable, like soaking in a hot tub.  Feels good, doesn't it?  Now imagine you need to get out to get a drink of water.  How does the hot tub feel when you get back in?  Does it feel like a continuation of what you felt when you got out for the drink, or does the deliciousness of the warm water on your cool skin feel even better than when you first entered the tub?  If you're like most people, getting back in the tub feels even better than it did at first.  You remembered the hot tub as a good feeling, but your body "forgot" exactly how it felt when you got out, so you were primed for it to feel even better getting back in.  With discovery, it stinks doing it, and stopping short of completion simply primes you for it to feel horrible to pick it up again.
Moral of the story is to just pick up that discovery and get it done.  Don't baby it, don't deal with it in small doses.  Just do it.  It will be less painful, and reducing pain is what we're all about here in the Trenches.

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