The meandering road to discovery reform illustrates, among other things, the ineffectiveness of an atomized profession that lacks either sufficient understanding of the adversary system or the resources and forcefulness to address the practical impact of adversarialism. In some ways, lawyers reforming litigation can be characterized as poorer investigators than the sixsome who examined the elephant. The elephant sleuths were guilty of isolation and ignorance. Lawyers and policy makers not only exhibit a lack of information and empathy, but also often show an unwarranted distrust of or contempt for the elements of the profession with which they disagree. Unfortunately, however, the distrust is often earned.
In raising these concerns, I make rather elastic use of the now popularized “cultural literacy” term to mean: (1) basic knowledge; (2) understanding of legal cultures or subcultures such as the “culture” of trial lawyer customs; and (3) tolerance among legal subcultures such as the degree of cooperation among the bench, the bar, Congress, and the executive. In my view, the profession’s frequent lack of such cultural literacy undermines both the operation and reform of civil litigation.
27 Val. U. L. Rev. 313 (1993).
Stempel, Jeffrey W., "Cultural Literacy and the Adversary System: The Enduring Problems of Distrust, Misunderstanding and Narrow Perspective" (1993). Scholarly Works. Paper 197.