Category Archives: Pretrial Agreements

Pretrial Agreements Made Easy

These agreements will make life easier for both sides and do not advantage one side over the other. Waiting until you are in the heat of battle to try to reach these agreements, one side or the other will feel disadvantaged. #1 Discovery Disputes Will Be Resolved with a Phone Call Between Lead Counsel. #2 Depositions Will Be Taken by Agreement and Will Be Limited in Number and Length. #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 …


#1 Pretrial Agreements – Communication Technology

Discovery Disputes Will Be Resolved with a Phone Call Between Lead Counsel. One of the most counter-productive litigation activities is the discovery dispute letter.  Lawyers write these multi-page, single-spaced tomes not for the purpose of working out discovery disputes, but to create a record for an eventual motion to compel.  Such a letter typically generates a response in kind from opposing counsel, and then a reply, then a sur-reply.  In short, the parties draw battle lines instead of working toward an agreement. Counsel should not engage in discovery disputes for the purpose of engaging in discovery disputes.  Instead, counsel should …


#2 Pretrial Agreements – Depositions Procedures

Depositions Will Be Taken by Agreement and Will Be Limited in Number and Length. Some counsel try to gain an advantage by unilaterally noticing depositions or by overstrategizing the issue of whose witnesses will be deposed first.  These issues tend to waste time while having no impact on the outcome of a case. The parties should agree at the beginning of the case that depositions will be taken by agreement, with no unilateral deposition notices.  Moreover, the parties should agree to alternate witnesses – plaintiffs’ witness first, defendants’ second, plaintiffs’ third, defendants’ fourth etc. Lawyers tend to take too many …


#3 Pretrial Agreements – Same Court Reporter – Videographer

The Parties Will Share the Same Court Reporter and Videographer. Counsel often fail to cooperate on the selection and negotiations with a court reporting firm. This is a mistake. The parties can easily cooperate to choose a court reporting firm at the beginning of the litigation. If counsel can promise the firm that it will handle court reporting and videography for every deposition in the case, the firm should be willing to provide a discount in return for the right to transcribe all depositions. Counsel can also cooperate to solicit competitive bids from multiple court reporting firms. This cooperation at …


#4 Pretrial Agreements – Motion For Summary Judgment

Papers Will Be Served by E-Mail on All Counsel. Some lawyers still do not serve papers by e-mail unless required by the rules.  Their reluctance may in some circumstances be motivated by misguided tactical considerations; they want their opposing counsel to go a few days without realizing that an important motion has been filed.  This is particularly a problem in state-court jurisdictions where there is no e-filing. Such tactical maneuvering does not yield a better outcome at trial.  It is unnecessary and counter-productive.  The parties should agree at the beginning of every case that all papers will be served by …


#5 Pretrial Agreements – Documents Produced On Rolling Basis

Documents Will be Produced on a Rolling Basis. There is no real advantage to be gained for either side in posturing over when documents will be produced.  And delays in document production can only lead to inefficiencies and fights about collateral issues. The parties should agree to produce documents on a rolling basis as soon as they have been located and copied.  If copies are produced, the originals should be made available for inspection upon request. One commendable procedure is used in the United States District Court for the Eastern District of Texas.  In that district, judges expect the parties …


#6 Pretrial Agreements – Pick Five Custodians For Production

Each Side Will Pick Five Custodians for Production of Electronically-Stored Records. Electronic discovery has become the most expensive and time-consuming part of the pre-trial practice in most cases.  But pre-trial agreements can help to reduce the burden. Electronic discovery is so burdensome because requesting parties seek overbroad production of electronic documents, and because producing parties try to conduct a relevance and privilege review of every single electronic document.  In some large cases, each side will end up having several young lawyers spend weeks on end conducting relevance reviews of dozens of custodians’ electronic files.  This is extremely expensive, and not …


#7 Pretrial Agreements – Ask Court to Choose a Protective Order

The Parties Will Ask the Court to Choose a Protective Order. Sometimes discovery is bogged down from the very beginning when the parties cannot agree on the form of a protective order.  This is particularly a problem in patent infringement cases and other big-stakes matters involving sensitive business information. Sometimes the parties will negotiate a month or two trying to reach agreement on the language of a protective order, to no avail.  When that occurs, the parties have wasted several weeks and their clients’, or their own, time and money. Most judges have a good sense of what they think …


#8 Pretrial Agreements – Sequential Exhibit Numbering

Exhibits Will Be Numbered Sequentially. It becomes apparent that many litigators are not thinking about trial when they start numbering deposition exhibits.  It is a particularly annoying practice to number exhibits separately for each deposition.  When this is done, the same document can end up being Smith-1, Jones-4, and Johnson-14 once the parties get to trial.  Alternatively, the plaintiffs and defendants can continue the numbering from deposition to deposition but have a separate set of plaintiffs’ exhibits and defendants’ exhibits.  Plaintiffs-14 and defendants-14 then will be different documents. Exhibits should be numbered at deposition with the ultimate goal in mind …


#9 Pretrial Agreements – Share the Expense of Imaging Deposition Exhibits

The Parties Will Share the Expense of Imaging Deposition Exhibits. Just as the parties should cooperate in selecting a court reporting firm, they should cooperate and share the cost of imaging all deposition exhibits.  There is no advantage to anyone – except perhaps companies which image documents – of the parties failing to share costs in this manner.