Better Litigating Through Pretrial Agreements

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Clients and commentators often criticize the pace, burden, and expense of litigation, principally discovery. They are right. Many lawyers seem to engage in discovery for the sake of engaging in discovery. Opposing counsel fight bitter fights over discovery issues that have no bearing on the results of the case. All too often, the fruits of discovery turn out to be wasted—unused or unusable at trial.

Too often, at the beginning of a new case, lead counsel will turn over discovery and other pretrial work to junior attorneys who do not have the judgment to know what is important or who are afraid of not turning over every rock. The junior attorneys will mechanically go about the task of asking for every document, noticing the deposition of every witness, and asking every conceivable question at the depositions. They will get crosswise with their opposing counsel, and silly discovery disputes will abound.

This is a problem for everyone involved in litigation.

For the client paying its attorneys by the hour, the cost of inefficient discovery comes right out of its pocket, and the burden and cost of discovery can contribute to the desire to settle, even when settlement is not warranted.

The cost of inefficient discovery can be an enormous burden for contingent-fee attorneys. Time-consuming discovery disputes are—or at least should be—anathema to the contingent-fee lawyer, who profits from handling cases efficiently.

For the hourly lawyer, protracted and costly pretrial proceedings may seem like a boon. But they’re not. Hourly clients first look for attorneys who can efficiently handle their cases. They are not likely to rehire the lawyer who bills hundreds of hours for taking dozens of depositions that end up on the cutting room floor when trial arrives.

Some commentators have suggested that discovery is inherently burdensome under the rules as they exist in American courts. That’s wrong. The Rules of Civil Procedure do not require attorneys to take dozens of depositions or to file motions to compel over every document. And lawyers can make their own rules—pretrial agreements—that enhance the efficiency of each case.

Lead counsel (not junior associates) should discuss pretrial agreements at the very beginning of the case, before discovery picks up steam. At our firm, we have 15 discovery agreements we propose at the beginning of most cases, as well as a few agreements relating to pretrial motion practice and trial. Our experience has shown that these agreements work to reduce the cost and burden of litigation while keeping the focus on the eventual trial of the case. The key has always been to attempt to reach agreement on as many of these items as possible before discovery begins. Once you are in the heat of battle, what appears to be good for one side is often assumed to be bad for the other—making it hard to reach an agreement. Thus, we have proposed the below agreements.