Litigation & Advocacy · 10-16% of the exam
14.1.3Discovery, court rules, and trial conduct (Rule 3.4(c)–(e))
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- Rule 3.4(c)–(e) — Court orders, discovery, and trial conduct
Rule 3.4(c)–(e) requires compliance with tribunal rules and discovery obligations, and bars substituting personal authority for the record at trial.
Why
Tribunal rules and discovery obligations only work if compliance is not quietly optional, and a trial only tests evidence if the advocate's own standing stays out of the scales. Without these limits a factfinder would end up weighing how confident a lawyer sounded instead of what the record showed.
Plain English
Don't knowingly disobey a tribunal's rules, except by open refusal asserting no valid obligation exists. Don't make frivolous discovery requests or fail to try diligently to comply with legally proper ones.
At trial, don't allude to matters you don't reasonably believe relevant or that admissible evidence won't support, don't assert personal knowledge of facts in issue unless testifying, and don't state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.
Rule
Rule 3.4(c)–(e) — Court orders, discovery, and trial conduct
Court orders and rules (3.4(c)):
A lawyer shall not knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.
Quiet non-compliance is prohibited. An open, declared challenge is permitted.
Two points on discovery (3.4(d)), and the second is an omission rather than an act:
A lawyer shall not make a frivolous discovery request.
A lawyer shall not fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.
Three points on prohibited trial conduct (3.4(e)), and the third branches into four:
Alluding to any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.
Asserting personal knowledge of the facts in issue, except when testifying as a witness.
Stating a personal opinion as to:
- the justness of a cause;
- the credibility of a witness;
- the culpability of a civil litigant; or
- the guilt or innocence of an accused.
Permitted: "The evidence shows X." Prohibited: "I believe X" or "I know the defendant is guilty."
Trap
Questions · 2
Q 01ch14-e05
Question 1 of 2 · Rule 3.4(e)
Attorney defended Defendant, who was accused of setting fire to a shuttered cannery. The proof at trial was circumstantial, and Attorney had come to believe, after months of work on the file, that the fire was an accident. In closing argument Attorney reviewed the timeline, told the jury that the evidence showed no accelerant was ever found, and then added that after reading every page of the file Attorney personally knew Defendant did not start the fire. Attorney did not testify as a witness at any point. The jury convicted. Is Attorney subject to discipline?
Keys 1 to 4 choose.