Suggestions from a Trial Legend
Stephen D. Susman is a legal legend in Texas and elsewhere. He was a nearly flawless trial lawyer and once said that “the only thing he couldn’t deal with in the courtroom was a lie.” This is partly false because few could match Mr. Susman’s ability to tease out, expose, and capitalize on a witness trying to deceive him or a jury. Mr. Susman “dealt with” courtroom lies such that the prevaricator almost always regretted his or her choice.
Mr. Susman died in a tragic bicycle accident in 2020. But his professional legacy included sharing his thoughts and experiences in ways to improve the legal system and to make all of us better lawyers. In 2011, Mr. Susman and his law partners put together a simple and straightforward list of proposed agreements between counsel—the Susman Agreements—that was intended to streamline the discovery, pretrial, and trial processes:
- Discovery disputes will be resolved with a phone call between lead counsel.
- Depositions will be taken by agreement and limited in number and length.
- No objections at depositions.
- The parties will share the same court reporter and videographer.
- Papers will be served by email on all counsel.
- Documents will be produced on a rolling basis.
- Each side will pick five custodians for production of ESI.
- Production does not waive privilege.
- Each side may select up to 20 documents from the other side’s privilege log for in camera inspection.
- The parties will produce ESI in native, searchable format.
- The parties will ask the court to choose a protective order.
- Exhibits will be sequentially numbered.
- The parties will share the expense of imaging deposition exhibits.
- Neither side will be entitled to discovery of communications with counsel or draft expert reports.
- The parties will agree to limited rights to take expert depositions.
Same Will Yield Same, So Think Differently
These agreements presume that both sides are willing to let go of some of the tricks and traps offered by the Rules and commit themselves to simplicity, practicality, and efficiency. The core brilliance of the Susman Agreements is that they are easily understandable by both human beings and trial lawyers—because some of us can lay claim to both descriptions.
It is true that amendments to the Rules have at least partly addressed some of these issues (e.g., Nos. 8 and 14), and practice technology has evolved so that others are perhaps less contentious than they once were (e.g., Nos. 5 and 10). But consider how much hand-fighting still routinely occurs regarding the items addressed in, for example, Nos. 1, 3, 7, 9, and 11.
If you find yourself working on the fifth revision of language for attorneys-eyes-only designations, asking the court to select a protective order might begin to make a lot of sense. Or if the transcript from your last deposition contains more lawyer bickering than witness testimony, you might consider doing away with deposition objections altogether. And I won’t mention, except that I will, the teeth-grinding discussions (or motions to the court) about which and how many document custodians the other side should search for responsive documents. All of these are solvable problems, but only if the parties are willing to commit to an up-front solution rather than positioning themselves to play Rules-based gotcha sometime later.
Litigation Legos: Build Whatever You Want
One of the true benefits of the Susman Agreements is that they need not be static. Parties can choose to eliminate those they are uncomfortable with or include additional agreements to further streamline the pretrial processes. Counsel might think about their biggest pretrial headaches from previous cases and figure out an agreement that would avoid them, or at least limit their likelihood. It’s a good bet your opponent has suffered the same headaches, or even more brutal ones that have not yet afflicted you, and would be willing to commit to an ounce of prevention.
One interesting thing about the Susman Agreements is that they focus on how certain things will happen and say almost nothing about when they will occur. The latter is the proper province of the court’s scheduling order. But while the court sets the deadlines for the case, the parties can agree on exactly what they will do, and will refrain from doing, by those deadlines. What the parties are required to do leaves much more gray area than their deadlines to do it, and the Susman Agreements fill those areas with a clarity that the Rules sometimes lack.
Remember That You Are Agreeing to These, Too
Parties can certainly ask the court to order the Susman Agreements as part of a scheduling or case management order. But they don’t have to. If a party has consented in writing to the Susman Agreements, that party will get no traction in later complaining to the court about the deal that was struck—whether those agreements are part of a court order or not.
When I’m drafting written discovery, I try not to ask for any documents or information that I would not likewise be willing to produce without objection. Trust me here: Trying to defend a discovery objection is not fun when you’ve asked for basically the same information from the other side. This logic also applies to the Susman Agreements. Do not enter into them unless you and your client are willing to behave and operate accordingly. The surest way for your adversary to weasel out of the deal is to point out that you have failed to live up to them.
There Is Power in the Message
The Susman Agreements are, to be sure, a practical tool. They embrace clarity and simplicity in how parties will handle things. But there’s a meta aspect, too. The lawyers who propose them, or who agree to them, are communicating that they don’t want or need to play the frustrating and inefficient games that the Rules sometimes permit. Those lawyers believe in their case, their ability to discover it, and their ability to try it. The Susman Agreements challenge lawyers and clients to leave the trick plays in the locker room, and beat your opponent based on your ability to develop compelling themes, get the reasonable discovery you need, and try your case.
It is entirely unsurprising then that Mr. Susman would be the one to lay down that challenge.