Should We Return to Trial by Ambush?: Reflections on Discovery Reform

Stephen D. Susman, Esq.

One of the reasons that the public in general — and politicians in particular — are down on the civil justice system is that it costs too much money and takes too much time to get a case to trial. I spent an unpleasant morning watching a little of the Microsoft trial. It's proceeding at a snail's pace and boring beyond belief. I was appalled to learn that the judge plans to let the case drag out through February. The Microsoft lawyers are clearly apostles of the Irving Young School of Cross Examination. They never ask a question to which they do not know the answer. They ask only leading questions that are carefully crafted paraphrases of what the witness was asked to testify to in his deposition. There's no spontaneity. There's no suspense.

Obviously, all the key witnesses have already been deposed on videotape. And the judge, in an effort supposedly to speed things up, has required that the direct testimony come in through vehicle of a prepared statement rather than by direct Q&A. One wonders why the judge just doesn't watch the videotapes and dispense with the trial altogether.

The Microsoft trial is a good example to me of how litigants with unlimited resources and the opportunity to engage in "scorched-earth" discovery are able to devour judicial resources. It's a type of monopolization that is as pernicious as any that Microsoft is accused of — monopolization of the courthouse. And it's hard to see how this kind of trial promotes the search for truth. The lawyers know exactly what to expect. The witnesses are thoroughly coached. Everything is canned, and nothing is candid.

Who or what is to blame, then? We lawyers (and judges) have allowed pretrial discovery to get out of hand in the interest, supposedly, of eliminating surprise at trial. On the other hand, I think most efforts at so-called "tort reform" ultimately result in legislatures' and courts' closing the courthouse door to those with legitimate causes of action. But because I think trial by ambush is better than trial by ordeal or no trial at all, I favor all kinds of limitations designed to reduce the time and expense of pretrial and the length of trials.

Extensive use of jury research has taught trial lawyers that the kind of proposals I'm about to make can be adopted with little, if any, sacrifice on the quality of justice or the predictability and result of verdicts. For instance, a summary jury trial or a mock trial may take only a couple of hours; each lawyer makes an argument and maybe shows a few snippets of videotape. In those situations jurors inevitably reach the same decision that they reach after days and weeks and months of "real" trial. That's why mock trials are so useful and used by all trial lawyers because they are extremely predictable. The fact of the matter is that jurors hate depositions — even video ones. They distrust all experts. They make up their minds largely on the basis of their personal perceptions: whether a witness is honest, evasive, argumentative, candid, or competent. Jurors focus on the bare-bone story lines of what the case is about, not on the lawyer's details for which the parties have spent hundreds of thousands of dollars in discovery.

I suspect that if you counted up the deposition lines that ever saw the light of day in a courtroom, it would be something less than two percent. Even when you use a deposition for impeaching a witness by a prior sworn statement, it usually misfires. You have to be a very, very good lawyer and get the witness square between the eyes to make impeachment by prior sworn statement effective.

So if we reach the same result in a few hours with jurors in a mock trial that we reach after weeks and months of a "real" trial, maybe we're doing something wrong. Maybe we ought to limit the length of trial and allow lawyers to discover only as much as is necessary to put on during an abbreviated trial.

Here are some proposals I would make, and none of them are really revolutionary. Many jurisdictions have adopted them.

First, I think depositions should be limited both by the number of depositions and by the duration. I think it would be a rare case when more than fifty hours of depositions would be needed, and I think it would be extremely rare when you need to depose a particular witness for more than three or four hours. If you know what you want when you go in and you don't ask the witness to tell the history of mankind since the beginning of time, you can ask questions effectively. You can get right to the heart of the matter. And you can find out generally what you need to have a fair trial: What's this guy's general pitch going to be? What's his story line? I don't want to know all the details. I just want to know kind of where is he coming from.

Speaking objections at depositions designed to coach witnesses, or to run out the clock on time-limited depositions, should be strictly prohibited. The deposition conference room should be made as closely to resemble the courtroom as possible. And most smart lawyers are using videotape in lieu of stenographers altogether because it's much cheaper to videotape a deposition. I mean, we don't need stenographers any more, but there's a powerful court reporting lobby that keeps them on the scene. But in any event, what goes on in that conference room should be exhibited to the jury because lawyers are not going to act up in the presence of a jury during cross-examination. And if they do act up, the jury should see it.

The overall amount of time allowed for discovery and trial should also be limited. Lawyers will fill the amount of time given to them to pretry a case by doing unnecessary make-work in the interest of increasing the profits per partner of their firms. So I believe we should limit the amount of time that these children can be children by saying that you should discover a case in six months or seven months or eight months, and maybe the amount of time you get should be in some way limited or correlated with what is being asked for in the pleading. So that the greedier you are, the more discovery you can be subjected to.

I think litigants should get their day in court — not weeks or months. Therefore, judges should limit trials to a certain number of hours per side, and many are doing that now. And with shorter trials and less discovery, firm trial dates should be set at least a year after the case is filed and not moved when set.

On the subject of mandatory disclosure — which is very popular now in some jurisdictions — I think it should only be used as a substitute for other discovery devices, not as a supplement to other discovery devices. I think it is terribly wasteful in the federal system where we have mandatory discovery once a lawsuit is filed, and then you still have the same old request for production, interrogatories and depositions that you always had. It hasn't saved any time. It's doubled the amount of effort and time.

Another one of my rules would be that only lead counsel in the case could take a deposition, but I'm not suicidal. However, I would propose that only lead counsel in a case can communicate with the other lead counsel about discovery disputes. Take the disputes out of the hands of the youngest associates, and make the Steve Sussmans talk to the Steve Sussmans of the world. More importantly, prohibit us from writing letters to each other — it just makes me sick when I see lawyers in my firm write these letters. They somehow think that judges want to read them when they're attached as exhibits to briefs, which they don't. So make all communication about discovery matters between the lead counsel and no letters back and forth.

Another proposal — and it's just amazing to me why we don't have it in this country — would be for all courts in all jurisdictions to have nationwide subpoena power. After all, we have jet planes that go from coast to coast. It's not hard any more in this day to go from Texas to Louisiana or California. And not having subpoena power means that you can't get witnesses available for trial and does encourage much unnecessary pretrial discovery. If I could be assured that witnesses from California or Arizona would come to Houston, Texas for a trial at my expense, then it would not be necessary to take all these depositions. I think a rule we should impose which is different than the standard rule in effect is that if a witness is "available," i.e., if the witness is subject to being subpoenaed in this nationwide subpoena system, then you cannot use their deposition for any purpose other than impeachment. So you can't bore a jury by playing a video or reading a deposition when the witness can be subpoenaed live.

Interrogatories should be abolished. At trial, each side should be limited to 100 exhibits. If you identify a trial witness and do not call that trial witness, you should have to pay the other side's expense of deposing him.

Finally, I believe that pretrial orders should be used only to limit the disclosure of trade secrets or current highly sensitive competitive information. It is absolutely stupid that so many protective orders say that whatever is discovered can only be used for purposes of this case. It is not enough to me that something produced is embarrassing. That does not justify a protective order that prevents its use in another case and that requires reinventing the wheel when we have lawsuits repetitively filed involving the same subject matter throughout the country.

These are a few suggestions. Many jurisdictions, as I say, are adopting them. And, again, I'm not in favor of trial by ambush. But I think we ought to go in that direction because I think that surprise is a wonderful vehicle for the search for truth. If you want to find out someone's real answer to a question, don't tell them you're going to ask them the question three weeks in advance and let them think about the answer. You ask it au naturel and see what kind of response you get. And I also think that the non-leading, open-ended question is the most effective way to cross examine witnesses.

I believe with these proposed limitations and rules, we will have more cases tried, and therefore not every business person will find it necessary to put in their contract some mandatory dispute resolution provision that requires resolution disputes other than by a jury trial. And courts will not be so enamored with the idea of making everyone mediate their cases and settle their cases because the courts aren't trying them. Judges in this country today are not trying cases, and they're certainly not trying very many civil cases. They don't like it. It takes too long. It's amazing to me. So let's limit the length of trials and make them try cases, and let's get the business of dispute resolution done.

* Mr. Susman is a founding partner of Susman Godfrey L.L.P., a Houston, Texas law firm practicing commercial litigation.


2001 The Federalist Society