Demented Students Digress About Discovery

–From Janet Rae Montgomery, Stanford Law School, Date of event: 1973

By second semester, the demented students had been sorted out by the grades from the first semester—the demented ones were the ones with the As. The professors had also sorted out the ones it was safe to call on and the ones best left alone.

A visiting professor from the University of Chicago was teaching Civil Procedure, taking us through the federal rules of discovery. Usually this professor would have about five of us dangling in his Socratic questions, bouncing from one to the next of us.

The question of the day was: why were the written documents of the defendant readily available in discovery when it took a specific court order for blood or other corporeal evidence to be taken? Isn’t a diary recording our most secret thoughts at least as important as a blood sample? Why should Mr. Smith’s personal thoughts and records be at the mercy of a fishing expedition, when his DNA wasn’t?

Class was winding down. The five of us were wriggling on the line struggling to satisfy the professor’s demands, and all of us were failing. The bell rang. Books were being packed up but we weren’t going to be allowed to leave until this question had been answered. Then a hand went up.

Jonathan, a smile on his face and a gleam in his eye that I could see even from ten chairs away, decided to give it a shot.

“Well, professor, I guess the people who wrote these rules thought it was more important to be able to get into a person’s papers than into his pants.”

The Socratic method was never used in that class again.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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