Susman Agreements: Clarity for the Rules of Civil Procedure

• Pages: 20-21
• Date: 01 January 2023
• Author: Daniel P. Elms
• Subject Matter: Civil Law

Imagine if the Federal Rules of Civil Procedure had been

written by normal human people instead of lawyers.

What would they look like? I suspect there would be

more emphasis on clarity so that any nonlawyer could

readily understand what they mean. The Rule 8 man-

date of “short and plain statements” from litigants sometimes

feels like an amusing irony, and the Rules themselves do not

always take this advice.

I also suspect there would be a focus on functionality. As

written, the Rules set forth what can, and sometimes must,

happen for a lawsuit to get from cradle to grave. But there are

as many Rules intended to frustrate that progress as there are

to encourage it. A lawyer or party might fairly side-eye the

claimed objective in Rule 1 to ensure the “just, speedy, and

inexpensive determination of every action and proceeding.”

The complexity of the Rules is not an accident. They

rightly want to ensure that both sides of a case are given

enough swords and shields so that each is equipped for a fair

ght. But the practical-minded lawyer (or client) might prefer

efciency and practicality over the Rules’ myriad intricacies.

For some lawyers and for some cases, checkers works better

than chess.

Suggestio ns from a Trial Legend

Stephen D. Susman is a legal legend in Texas and elsewhere.

He was a nearly awless 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:

1. Discovery disputes w ill be resolved with a phone call

between lead counsel.

2. Depositions wil l be taken by agreement and limited i n

number and length .

3. No objections at deposition s.

4. The partie s will share the same court rep orter and

videographer.

5. Papers will be ser ved by email on all counsel.

6. Documents wi ll be produced on a rolling basis.

7. Each side will pick ve c ustodians for production of

ESI.

8. Production does not waive priv ilege.

9. Each side may select up to 20 doc uments from the

other side’s privilege log for in ca mera inspection.

10. The parties will pro duce ESI in native , searchable

format.

11. The parties wi ll ask the court to choose a protective

order.

12. Exhibits will be sequentially numbered.

13. The parties will share t he expense of imaging deposi-

tion exhibits .

14. Neither side will be entit led to discovery of communi-

cations with coun sel or draft expert reports .

15. The parties will agre e to limited rig hts to take expert

depositions.

Same Will Yiel d Same, So Thin k Dierent ly

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 efciency.

The core brilliance of the Susman Agreements is that they are

easily understandable by both human beings and trial law-

yers—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 per-

haps less contentious than they once were (e.g., Nos. 5 and

10). But consider how much hand-ghting still routinely

occurs regarding the items addressed in, for example, Nos. 1,

3, 7, 9, and 11.

If you nd yourself working on the fth revision of lan-

guage 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 solu-

tion rather than positioning themselves to play Rules-based

gotcha sometime later.

Litigation L egos: Build W hatever You Want

One of the true benets 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

Susman Agreements: Clarity for the

Rules of Civil Procedure

By Daniel P. Elms, Litigation News Editor-in-Ch ief

WINTER 202 3 • VOL. 48 NO. 2

20 | ABA LITIGATION SECTIO N

CIVIL PROCEDURE UPDATE

Published in Litigation News Volume 48, Number 2, Winter 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or

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