Pretrial and Trial Agreements – Saving Money Through Thinking and Planning

Forbes recently published a fascinating article about Steve Susman’s thoughts on saving money in litigation. 

The article reports that Susman has launched a website called "Trial by Agreement" that "provides a sort of 0pen-source repository of pre-trial agreements that lawyers can use to reduce the often needless expense of electronic discovery, depositions and tit-for-tat motions."

The "Trial by Agreement" website has form pretrial agreements and trial agreements that lawyers can use in their own cases.  Here is a list of the proposed pretrial agreements:

#1 Discovery Disputes Will Be Resolved with a Phone Call Between Lead Counsel.
#2 Dep#1 Trial Agreement – Date for Exchanging Real Live Witness List
#3 The Parties Will Share the Same Court Reporter and Videographer.
#4 Papers Will Be Served by E-Mail on All Counsel.
#5 Documents Will be Produced on a Rolling Basis.
#6 Each Side Will Pick Five Custodians for Production of Electronically-Stored Records.
#7 The Parties Will Ask the Court to Choose a Protective Order.
#8 Exhibits Will Be Numbered Sequentially.
#9 The Parties Will Share the Expense of Imaging Deposition Exhibits.
#10 Neither Side Will Be Entitled to Discovery of Communications with Counsel or Draft Expert Reports.
#11 Production Does Not Waive the Privilege.
#12 Each Side May Select up to 20 Documents from the Other Side’s Privilege Log for In Camera Inspection.

Here are the proposed trial agreements:

#1 Trial Agreement – Date for Exchanging Real Live Witness List
#2 Trial Agreement – Length of Trial and Time
#3 Trial Agreement – Deposition Designations
#4 Trial Agreement – Deposition Counter-Designations
#5 Trial Agreement – Agreed Motion in Limine
#6 Trial Agreement – Deadlines to Exchange Exhibit Objections
#7 Trial Agreement – Unobjected-To Trial Exhibits Deemed Admitted
#8 Trial Agreement – Party-Produced Exhibits Deemed Authentic
#9 Trial Agreement – Proposed Jury Questionnaires
#10 Trial Agreement – Agreed Juror Notebook
#11 Trial Agreement – Juror Participation
#12 Trial Agreement – Juror Questions
#13 Trial Agreement – Notifying Parties of Live Witnesses
#14 Trial Agreement – Demonstrative Exhibits
#15 Trial Agreement – Agreed Jury Instructions
#16 Trial Agreement – Court to Instruct Jury Before Final Arguments
#17 Trial Agreement – Request Real-Time Reporting
#18 Trial Agreement – Shared Audio – Visual Equipment & Electronic Versions of Displays
#19 Trial Agreement – Amount of Interim Argument

What a wonderful service Steve and his team as Susman Godfrey have provided.   Every trial lawyer knows that there is simply too much unnecessary expense incurred in the collection of evidence and preparation of a case for trial.  It simply makes sense to reach agreement on certain matters early, and this draft agreements facilitate that process.

The hangup?  Fear.   People in general, and lawyers in particular, are afraid to try something different.  It is much easier to do what has always been done, regardless of how foolish it is.

All that being said, Steve and his team are saying what needs to be said.  We must continue to push the envelope to reduce the cost of litigation.

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