Some questions for you litigators out there:

The last time you were slogging through an all-day, multi-lawyered deposition of a reluctant witness, or preparing your own witness by walking him through hundreds of documents page by page, or fishing through 14 overflowing file cabinets for a probably non-existent smoking gun, or cranking dozens of boilerplate interrogatories through the word processor, did it feel like a good use of your time? And your client’s money?

Did you enjoy your long day’s journey into the night? Was it fun? Was it illuminating? Did it bring your case closer to a just resolution? Did it make any difference at all?

Or was it just a waste?

My unscientific sampling of big-case litigators suggests that a lot of them feel that a large "percentage of the time they spend on discovery is unproductive tedium or pointless gamesmanship-needlessly prolonged because they cannot risk leaving any stone unturned, or because vexatious adversaries play hardball, or because the party with more resources is waging a war of attrition, or because the judge won’t manage the case or take it to trial, or because the need to rack up billable hours creates incentives for overkill, or just because that’s the way it’s done.

The discovery process is a monster out of control, devouring billions of dollars and countless hours of lawyers’ time in cases that would be better settled or tried with far less ado. Most litigators know this. But many seem resigned to spending a good portion of their lives suffering through wasteful discovery.

Now comes Judge William Schwarzer, director of the Federal Judicial Center, with a proposal to set them free, to eliminate the excesses of adversarial discovery, and to make lawsuits quicker and cheaper.

He would change the federal rules to impose "a system of mandatory early and ongoing reciprocal disclosure, replacing all discovery other than what the court specifically orders."

Under the Schwarzer system, your adversary would be obliged-under pain of sanctions-to show you the most damaging evidence in his client’s files without making you first guess at what to ask for or comb through haystacks of documents. And before an adversary could depose a dozen of your corporate client’s executives about everything under the sun, he would first have the burden of showing the judge a particularized need for each deposition.

This proposal, which the judge details in a 6,000-word article in the December-January issue of Judicature, has no official standing and has so far drawn little notice. But it isn’t just another well-intentioned idea for incremental tinkering or encouraging judges to penalize discovery "abuse," which, zealous advocacy being what it is, is often hard to distinguish from plain old discovery.

Rather, this is a blueprint for radical change-far more radical than the discovery reform proposals now before a committee of the Judicial Conference of the United States. And it is being advanced by a highly respected jurist with 14 years’ experience on the U.S. District Court in San Francisco and 24 years as a big-firm litigator before that.

The good news is that the Schwarzer plan would make law practice more stimulating, more efficient, and more likely to produce fair results. By vastly reducing cost and delay, it would greatly improve public access to civil justice.

The bad news (for lawyers, that is) is that law firms would stand to make less money-a lot less.

The existing discovery rules already give judges power to prevent discovery from spinning out of control, but too few judges use it. Most are too overwhelmed with heavy criminal caseloads, or too reluctant to enforce murky definitions of discovery abuse, to dig into the civil suits pending before them and take control.

So the opposing lawyers, virtually unsupervised, tend to fill the time battering one another with exhaustive discovery requests seeking every conceivable piece of relevant information.

All the incentives push toward overkill: Clients and in-house counsel put a high priority on winning their cases whatever the cost; litigators don’t want to risk missing anything that could conceivably help them or to hand over anything likely to help the other side; those willing to use hardball tactics often have an advantage over those inclined to openness and restraint, and those who want to hold down their clients’ litigating costs; and prolonged, expensive discovery is vital to the economics of many big law firms.

The larger problem is not blatant "abuse" of discovery; it is these systemic incentives to overuse it and turn it into an adversarial game.

Judge Schwarzer’s system is designed to reverse the incentives by requiring parties who seek discovery to justify it to a judge, thereby forcing judges to take control of their cases. "Under the disclosure system, there will be no place to hide for judges indifferent to case management," he says.

When filing suit, a plaintiff would be required to submit to the defendants with his complaint copies of all known "material" documents and things, and the names and addresses of all persons believed to have material information, and a summary of all material information known to be possessed by persons under the plaintiff’s control. The category of information subject to disclosure would be narrower than that which is subject to discovery now.

Defendants would be obliged to do the same in filing their answers. And as the case proceeds, all parties would have a continuing obligation to supplement their disclosures as they became aware of new facts or new issues. They would have to certify with each disclosure that they had handed over everything then known to be material.

Non-compliance would invite judicial sanctions, and corner-cutting would undermine a party’s credibility in court.

When in doubt about whether information must be disclosed, any party could seek a court ruling to clarify its obligations. Discovery against an adverse party would be allowed only by court order based on a showing of "particularized need." Judges could impose conditions such as time limits and defined areas of inquiry for depositions. Such judicial involvement, in the context of prior disclosure, would serve to define and narrow the issues.

Since everyone’s "cards will be face up on the table at the outset," Schwarzer says, "the game playing associated with discovery" would be eliminated, along with much of the incentive to litigate. Parties could not proceed in the hope that information adverse to their case would remain undiscovered through their adversaries’ failure to ask precisely the correct questions or their own cleverly narrow interpretations of discovery demands. Cases would settle more quickly.

The present system tells lawyers, in effect, "when in doubt, demand more discovery." The disclosure system would reverse that presumption.

One likely cost of changing to such a disclosure system would be the loss of some relevant information that exhaustive discovery might have ferreted out.

But it is very doubtful that this would produce unjust results anywhere near as often as does the current discovery system, which is so costly that it stacks the deck in favor of those better able or more willing to endure prolonged trench warfare, and often makes it uneconomical for parties with valid claims of under, say, $150,000 to go to federal court at all.

And while the Schwarzer disclosure system would depend on the good faith of lawyers and parties, and thus be vulnerable to concealment of material information by those who act dishonorably, this is equally true-perhaps even more true-of the current discovery system.

The greatest obstacle to the Schwarzer proposal is that it would deliver a major hit to the revenue base of large law firms, perhaps leading to widespread layoffs. This prospect suggests that if the idea gets the serious attention from policy-makers that it deserves, it will be buried under an avalanche of well-crafted objections by many of the nation’s leading litigators.

Come to think of it, imagine what a major shrinkage of big-firm litigation departments could do to the revenue base of publications like this one.

Come to think of it, it’s probably a lousy idea.