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The author is a U.S. Magistrate Judge, Chicago.
In 1921, Learned Hand lamented the “atmosphere of contention over trifles, the unwillingness to concede what ought to be conceded, and to proceed to the things which matter.” Things are no better today. Recently, Judge Sam Sparks of the Western District of Texas, fed up with the shenanigans of the lawyers in a case before him, entered an order inviting them to a “Kindergarten Party.” The order promised that there would be “many exciting and informative lessons, including how to telephone and communicate with a lawyer, enter into reasonable agreements about deposition dates, . . . and an advanced seminar on not wasting the time of a busy federal judge . . . because you are unable to practice law at the level of a first-year law student.”
The problem of lawyer misbehavior in discovery is easily stated. The answer has proved elusive. Sanctions have been only partially effective because many judges don’t want to be bothered with what they consider a collateral matter. Lawyers get the message, and they are also fearful that they will be on the receiving end of a sanctions motion in the future. And so, nothing changes.
Until now. Steve Susman and Johnny Carter believe they have an answer.
In “Better Litigating Through Pretrial Agreements,” the authors recommend that at the beginning of a case, senior lawyers craft a pretrial agreement setting the ground rules for resolving disputes from discovery through the trial.
The authors begin with the obvious: Much discovery is unnecessary, distracting, and expensive. As they put it, “silly
discovery disputes . . . abound,” and w pg 25 lawyers “get crosswise with their opposing counsel.” Depositions are a fertile source of conflict notwithstanding Rule 30(c)’s prohibition of coaching and instructing witnesses not to answer. And lawyers continue to “confer” with deponents in the middle of a question, despite the obvious impropriety of doing so. LM Insurance Corp. v. ACEO Inc., 2011 WL 2937300 (N.D. Ill. 2011). All these problems can be avoided by a pre-trial agreement that spells out what is and is not permissible.
Susman and Carter advocate agreements dealing with the timing of document production, the form in which electronically stored information will be produced, how inadvertent production of privileged documents will be handled, the length and number of depositions, the sharing of various costs, service by email to prevent purposeful delays, the rolling production of documents, protective orders, and a number of other issues that routinely arise and are the subject of needless disputes.
Be careful, however. Some of the proposed arrangements, such as briefing schedules and page limits for motions, require the court’s approval. The same is true of agreements regarding voir dire questions and providing for note-taking and the asking of questions by the jury. Although you will need the court’s approval of these agreements, it will seldom be denied
and will be in accord with modern practice. See James Holderman, Trying the ABA’s Principles for Juries and Jury Trials, 33 Litigation 8 (Spring 2007).
Susman and Carter’s invaluable suggestions should be embraced by all lawyers and encouraged by all judges. Their experience proves that cooperation among counsel will help to significantly reduce costs and minimize pointless and corrosive arguments. And that will enhance your professional life and might even allow you to make a friend out of an adversary.