Stephen D. Susman
Susman has been a trial lawyer for over 40 years and has been an innovator in creating a litigation boutique, championing fee arrangements that pay lawyers for result not effort, and promoting less costly and time-consuming ways of preparing and trying jury cases. For his full resume, go to view my bio.
How It Came About
In the mid-90s, as a member of the Texas Supreme Court Advisory Committee, I served as the chair of the Discovery Subcommittee that completely rewrote the Texas discovery rules. Through that experience I learned about the inefficiency of the rule-making process. First, it is very difficult to come up with a procedural rule that fits every civil case, both simple and complex. Second, rule-making requires the consensus of large numbers of judges and trial lawyers, most of whom are reluctant to change the way they have done business, and usually results in the adoption of a rule that is the lowest common denominator and not very innovative. Frustrated with the rule-making process, I asked myself why opposing counsel couldn’t make their own rules by agreement: rules that fit their particular case and rules that were intended to make litigating less expensive and stressful for both sides. Hence, for over a decade, the lawyers in my firm have been producing and refining agreements to suggest to the other side.
At first, we began with Pretrial Agreements directed at the discovery phase of litigation. We tried to come up with ideas that would likely be acceptable to both sides, that would not inherently benefit either the plaintiff or defendant. We learned immediately that our chance of getting agreement depended on our getting the other side to consider these ideas in the abstract, before a dispute arose. So our practice is to send these to opposing counsel as soon as all counsel on both sides make an appearance. Some of our agreements (e.g. no letter writing or numbering of deposition exhibits) were so obvious that we rarely had anyone disagree. Some (e.g. making expert drafts and expert/counsel communications undiscoverable) have found their way into recently adopted federal or state rules.
Several years ago, we realized that the same approach—trial by agreement—would work when it comes to the trial. So we began developing and proposing to opposing counsel, before the trial began, a series of Trial Agreements (or at least subjects for agreement) that would govern the trial. More so than our Pretrial Agreements, the Trial Agreements require the cooperation of the trial judge, but we were amazed at how willing most judges are to trying something that counsel agrees upon.
Over the years, I have spoken and written about the benefits of Pretrial and Trial Agreements. My colleagues in the trial bar and most judges have been very receptive to the idea. Lawyers in my firm have obviously made a record in each case of what has been agreed to. Over the years, the agreements have been modified, because there is always a way to build a better mousetrap.
The idea for this website is to create a forum where trial lawyers, in-house counsel, clients and judges can discuss improvements, agreements covering other subjects and keep some record of what works and what doesn’t.