Tom Melsheimer and Stephen Susman 2015-09-30 02:48:24
A professional approach improves results and saves the jury system. For many years, we have advocated for improving the conduct of civil litigation. Along with a few of our peers, we have worked to ensure that the litigation process, particularly the jury system, is an efficient and preferred tool for conflict resolution and is used to promote the effectiveness of a jury trial by embracing a process known as “trial by agreement.”1 To do otherwise is to abandon our constitutionally protected right to a jury trial in favor of “for hire” private arbitration. One serious impediment to an efficient and intelligent jury trial is discovery abuse. Discovery abuse, in the form of misconduct by counsel in the deposition process, has received increased attention from the courts. For example, on July 28, 2014, U.S. District Judge Mark Bennett of the Northern District of Iowa issued sanctions against a trial lawyer to correct excessive speaking objections, unfounded objections, and coaching of witnesses. While Judge Bennett’s sanction was recently reversed on procedural grounds by the 8th Circuit, we remain convinced that the discovery process must be improved with more guidance from the bench as to how it should be conducted when problems arise. Lawyers must not simply be told that their conduct was wrong but they must also be told how to correct their mistakes. Further, there is no doubt that there are many instances of discovery inefficiencies and misconduct, particularly during depositions, that are never even brought to the court’s attention. Federal Rule of Civil Procedure 1 provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Unfortunately, “speedy and inexpensive” is often the exception, not the rule, in modern civil litigation. We have previously noted that “lawyers have driven up the cost of litigation by unnecessary motion practice, unneeded discovery, and a failure to seek cost-saving agreements and protocols.”2 These practices make the prospect of case resolution by a jury more expensive, more remote in time, and, therefore, less likely to occur.3 We believe that unprofessional and inefficient litigation conduct is a leading cause of the disappearance of the jury trial.4 Never-ending disagreements, objections, and strategic contests for their own sake prevent the parties from reaching the merits of the case. This leads to a greater distrust of lawyers and the civil justice system. Litigation inefficiencies are not harmless if a case actually makes it in front of a jury,5 where such tactics “will manifest themselves in an excessive use of exhibits, unnecessarily lengthy deposition testimony, and a bloated interrogation process that, in our experience, leads to the single most repeated comment by jurors after a trial has concluded: ‘There was too much repetition.’”6 Experienced trial lawyers know that the vast majority of discovery never makes its way to court, which is another way of saying that most of what happens in discovery is not important to the outcome of the case.7 Yet too much effort is dedicated and too much money is spent on discovery. Many lawyers have a tendency to live by the assumption: “If the other side likes it, I don’t.”8 Litigation is slow and expensive because lawyers waste so much time fighting. Not only does this drain clients’ pocketbooks but it also imposes a strain on courts that do not have time to sort out all of the disputes that are generated by pre-trial posturing. We advocate for a renewed commitment to civility and efficiency. The “trial by agreement” approach aims to supplement the Federal Rules of Civil Procedure with agreements that will reduce the amount of pre-trial wrangling that gums up the litigation process. We advocate many pre-trial agreements, such as (1) limiting the number and length of depositions (beyond the limits already found in the Federal Rules of Civil Procedure); (2) requiring discovery disputes to be resolved on the phone by the lead trial lawyers instead of (as often happens) by a letter-writing campaign between junior lawyers; (3) streamlining document production by having each side pick a limited number of witnesses from which a broad document production will be made; (4) encouraging quick entry of a protective order covering confidential information and documents; and (5) agreeing to forgo expensive privilege reviews and abusively broad privilege claims in favor of a liberal snap-back of inadvertently produced privileged documents and automatic, but limited, court review in camera of questionable privilege log entries. The entire concept of “trial by agreement” is based on the principle of allowing a jury to evaluate the case on its merits. We have identified the following practices that should be considered for every trial: (1) trial time limits; (2) juror questions; (3) interim arguments; (4) preliminary substantive jury instructions; (5) juror discussion of evidence before the conclusion of trial; and (6) juror questionnaires. Each of these allows a jury to decide a case more intelligently and efficiently. By engaging in a “trial by agreement” approach, both parties will allow their case to be effectively understood by the jury (and the judge), will save court resources by avoiding useless and time-consuming disputes, and will reduce the expenditure of fees and costs by both sides. The professionalism we endorse is an example of something that “tastes good and is good for you.” By seeking to agree on as many things as possible in discovery and trial, civility and professionalism will necessarily increase. That’s a good thing in itself. And in our experience, such agreements will also improve the qualitative functioning of the jury system, which does not have spokespersons or lobbyists. Lawyers must protect and defend it. They can best do so by limiting their disputes, bringing cases to trial more quickly, and trying those cases more intelligently. Many of the comments and ideas in this article are similarly expressed in our article Trial by Agreement: How Trial Lawyers Hold the Key to Improving Jury Trials in Civil Cases, 32 Rev. Litig. 431 (2013), and in the amicus brief we filed in a matter that was recently decided by the 8th Circuit (No. 14-3006). NOTES 1) See generally Stephen D. Susman, About Pretrial Agreements, Trial by Agreement, http://trialbyagreement.com/about/about-pretrial-agreements. 2) See Stephen D. Susman & Thomas M. Melsheimer, Trial by Agreement: How Trial Lawyers Hold the Key to Improving Jury Trials in Civil Cases, 32 Rev. Litig. 431, 434 (2013). 3) See id. 4) See Patrick E. Higginbotham, The Disappearing Trial and Why We Should Care, Rand Review (2004), available at http://www.rand.org/publications/randreview/issues/summer2004/28.html (last visited Sept. 8, 2015) (“Because judges and lawyers are increasingly unskilled and inexperienced in the mechanics of a trial, the measure of what is relevant in discovery itself has become blurred at best.”). 5) See Susman & Melsheimer, Trial by Agreement, at 434. 6) Id. 7) Id. at 438. 8) See Id. THOMAS M. MELSHEIMER is managing principal in the Dallas office of Fish & Richardson. STEPHEN D. SUSMAN is the founding partner of Susman Godfrey. He established and serves as executive director of the Civil Jury Project at NYU School of Law.
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