Opinion
September 1, 1964
HANDBOOK FOR EFFECTIVE PRETRIAL PROCEDURE
MEMBERS OF THE JUDICIAL CONFERENCE COMMITTEE ON PRETRIAL PROCEDURE
FOREWORD
In compliance with the directions of the Judicial Conference of the United States, the Committee on Pretrial Procedure was designated to prepare a statement of the "Essentials of Pretrial." This Handbook for Effective Pretrial Procedure is the result. The members of the subcommittee who have worked to develop the handbook believe that it sets forth briefly and concisely all of the elements necessary for successful pretrial practice.We believe also that the statement is sufficiently general to be of assistance to the new judge and the veteran alike. Experience has taught that directions which are overly specific tend to become unduly restrictive and thereby lose a great deal of their usefulness. Therefore, the aim of the subcommittee was to survey thoroughly the area of pretrial procedure and then to set out our findings in general terms. We felt that this approach would allow each judge sufficient latitude in devising his own specific methods for insuring the pretrial conduct of litigation in accordance with the Federal Rules of Civil Procedure.
SUBCOMMITTEE ON THE PREPARATION OF THE HANDBOOK FOR EFFECTIVE PRE- TRIAL PROCEDURE JUDGE IRVING R. KAUFMAN, Chairman Court of Appeals, Second Circuit CHIEF JUDGE JOE EWING ESTES Northern District of Texas CHIEF JUDGE WILLIAM E. STECKLER Southern District of Indiana
HANDBOOK FOR EFFECTIVE PRETRIAL PROCEDURE INTRODUCTION
The Federal Rules of Civil Procedure for the United States District Courts, adopted by the Supreme Court of the United States in 1938, brought about significant changes in the processing of cases in the courts and the conduct of litigation by attorneys. As a result traditional concepts of the role of the court in all phases of litigation have undergone modification. Most importantly there has developed out of the rules a new art and science in the field of judicial administration commonly referred to as "pretrial procedure."This new science proceeds from the system of liberalized pleadings and discovery established by the rules. In providing a reliable means for the development of a law suit, these liberalized rules are to a large extent self-operative. When used properly they tend to promote efficient judicial administration; when misused or abused, they tend toward delay and resulting hardship on both the court and the litigants. In keeping with the duty of the court, as the representative of society, to settle the strife of litigation through the "just, speedy and inexpensive determination of every action" the Judicial Conference of the United States believes that under the Federal Rules of Civil Procedure the pretrial supervision of litigation by the court is required.
As we shall see there are varied procedures and techniques that may be employed for insuring effective pretrial procedure and the district judge should employ those techniques which, through experience, are shown to be most effective in dealing with the local problems in his district. The pretrial prerequisites to the effective management of the judicial business of a district court, without which successful pretrial procedure cannot be practiced, are:
(1) The early exhaustion of discovery necessary for trial.
(2) Adequate notice by the court of what is to be required of counsel by way of preparation, and cooperation among counsel in the pretrial exchange of information.
(3) An effective pretrial conference to define issues, to secure stipulations, and to plan for trial.
(4) An adequate pretrial order.
A. PRETRIAL PREPARATION: ROLES OF COURT AND COUNSEL.
The Federal Rules of Civil Procedure possess a unity which, in the normal course, makes each procedural step a prerequisite for the procedure to follow. An adequate knowledge by all parties with regard to the factual basis of the litigation, achieved usually through the discovery process, is the first step. It is for the parties, of course, to determine the extent of the use to be made of discovery. The court need be concerned only that the discovery processes are "exhausted" promptly, expeditiously and in advance of further procedural steps in the litigation.
Discovery
Some courts have found it convenient to require the "exhaustion of discovery" through the device of setting time limits; other courts (where dockets are current), by setting cases for prompt trial. Time limits are established in various ways: (1) by local rule of court requiring the completion of discovery, usually within 90 days after issue is joined, and prohibiting any further discovery thereafter except with permission of the court; (2) by direction to counsel at a preliminary conference held shortly after issue is joined; or (3) by a written notice given in advance of a conference, hearing, or trial. Experience has demonstrated that the failure to "exhaust" discovery at an early date needlessly consumes the time of court and counsel and is inimical to the administration of justice.
Role of the Court
The success of the Federal system of liberalized pleadings, discovery, and the use of pretrial procedures, the purpose of which is "converting a lawsuit from a game of maneuver and surprise into a rational, orderly search for truth and right", rests in large part upon the cooperation of the members of the bar. But it is clear that its ultimate success is dependent upon the active leadership of the judges. Experimentation and exhaustive study have established that pretrial can play a large role in attaining these goals. However, it must be understood that the judge is the key to effective pretrial. He must be enthusiastic himself about the value of this procedure, he must assume the positive function of instructing the bar in the proper use and value of pretrial procedures and he must constantly pursue these ends.
The Continuing Education of the Judiciary in Improved Procedures by Justice William J. Brennan, Jr., Proceedings of the Seminar on Practice and Procedure Under the Federal Rules of Civil Procedure, Boulder, Colorado, 1960, 28 F.R.D. at Page 43.
In order to establish the proper context for the pretrial conference, sufficient attention should be given to the notice of the conference by which the judge informs counsel of the agenda for the forthcoming hearing. If the attorneys are merely informed that they are going to meet with the judge, without any further details, chances of successful accomplishments are slight. Some lawyers do not approach the pretrial conference with the spirit necessary to make it effective. Thus, the preparation for the conference will be inadequate unless the court makes known just what is expected of counsel.
The Pretrial Conference Notice
There is no standard form of pretrial notice which can be utilized in every case. Facts and circumstances differ and thus call for different notices in different situations. Generally, the notice should be geared to the ends sought to be attained at the conference.
It is essential that the attorneys appearing at the conference be those who will try the case. If counsel has a sufficient reason for not appearing, then an associate may appear, provided he is thoroughly familiar with the case and is fully authorized to act in all respects and, if need be, ultimately to try the case. The same requirement should be enforced in cases involving the Federal government. If pretrial is to be effective, it is necessary that the attorneys in attendance have full authority to stipulate, and if the occasion arises, to settle.
Prior Meeting of Counsel
The Conference should not constitute the first meeting between counsel. Rather, counsel should meet before the conference, so that they will have had an opportunity to reach agreement on the items which will be raised at the conference. For example, counsel should attempt to iron out between themselves any disputed issues of fact or law, stipulations, names, addresses and number of witnesses. In general, they should pretry the case first between themselves, without the assistance of a judge. Experience has shown that this makes for a more orderly and expeditious conference before the court.
Pretrial Statements
It is of the utmost importance that the court also be well informed as to all the essentials of the case. To further this end, counsel should be required to submit typewritten memoranda to the court prior to the conference. In general, the plaintiff should briefly set forth in the memorandum what he expects to prove in support of his claim; the defendant, in turn, should state how he intends to prove his defenses. Each side should give a brief statement of the applicable law upon which it relies, and should support these by citation to authority.In addition, these memoranda should include a list of all exhibits intended to be offered at the trial; a sufficient description of each exhibit; and a statement of the purpose for which each is being offered. Counsel should further specify those documents that will be conceded to be genuine or those as to which a concession is requested. To facilitate this, they should exhibit to each other at the preliminary meeting "all documents and things embraced within Rule 34 of the Federal Rules of Civil Procedure or intended to be offered at the trial by each party represented."
Additional Discovery
A pretrial conference in the ordinary case should be conducted only after discovery has been exhausted. However, where a case is still in the discovery stages when the conference is held, those requested items which have not yet been obtained should be listed and any objections counsel may have to production should be stated with clarity and supported by citations to authority.
Additional Requirements
Counsel should be informed that any amendments to the pleadings, or abandonment of issues raised in the pleadings, will be considered at the conference. Counsel should further be informed that they should be prepared to make stipulations of fact as to liability or damages and discuss the separate trial of such issues. The conference agenda should also include any matters on which an admission is sought.
To aid in the promotion of an orderly trial each side should be required to submit to the judge and opposing counsel at the pretrial conference a list of the witnesses it expects to call, as well as the specialties of the experts who will be called. Then, at the conference, any witnesses whose testimony would be merely cumulative, or not sufficiently significant to warrant the expense of attendance, may be eliminated. In many instances counsel can be induced to stipulate as to the testimony of a witness, such as a custodian of hospital records or of x-rays.
Finally, any other pretrial relief which is sought should be discussed in an effort to shorten the trial time and, if possible, arrive at an equitable settlement of the case.
Generally, an effective pretrial conference should include the above mentioned items. There may, of course, be instances where some flexibility in the content of the notice is in order. The judge must determine what type of notice each case warrants. For example, if the notice is too complex, and the case is a simple one, it may serve to confuse the issues and the ultimate objective may be lost.
Early Pretrial Conference to Plan Discovery
In a case where there will be both an early and a late conference, the judge must alter his notice accordingly, to conform with the purpose of the respective conferences. The early pre-trial is designed to enable the judge to set the attorneys on the right track as they prepare their cases for trial. The discovery process and motions under Rule 12, Federal Rules of Civil Procedure, are of primary concern at this meeting. In order to insure an orderly discovery period without any undue hardship to the litigants, the judge must try, with the aid of counsel, to narrow the issues so that all discovery will be directed towards these issues and will not involve any unnecessary expense to the litigants. All pretrial motions should be heard by the judge at this conference. The judge should also set time-tables for the attorneys with respect to the commencement and conclusion of discovery and the commencement of trial. Experience has shown that attorneys, regardless of their prior attitudes, will make a conscientious effort to meet target dates set by the judge.
The late pretrial conference is designed to assure that all previous efforts of court and counsel to simplify the case will not be wasted. The issues as finally formulated should be specified with particularity. Counsel should also submit all jury instructions or interrogatories to be requested, although leave should be granted to file others when permitted by the Federal Rules of Civil Procedure and when required to prevent injustice.
Planning the Conference
In all pretrial conferences, whether early or late, it is wise procedure for the judge to have a prepared checklist of the matters he wishes to discuss, so as to avoid omission of any important items.When a series of conferences is held, the judge must plan each meeting carefully in advance and notify counsel of the agenda. It cannot be over-emphasized that a successful pretrial conference will take place only if the judge is completely familiar with the case, and each meeting is well organized. A conference lasting 30 minutes may often save hours of trial time. The keystone to such success is preparation.
B. AN EFFECTIVE PRETRIAL CONFERENCE General Considerations
There is no magic formula or precise blueprint for a successful pretrial; indeed, the conference itself cannot be a rigid, formalistic device but requires rather a large dose of flexibility for maximum effectiveness. The conference may be either formal or informal, and can be held either shortly after issue has been joined or immediately prior to trial. In selecting the proper procedure, the judge must necessarily be guided by consideration of the type and posture of the case before him and his docket as a whole.
The Protracted Case
In the "big" case which appears to involve difficult and complex issues, a formal conference will generally be advantageous, since the size and complexity of the case requires tighter control by the judge. Such a conference is best conducted in a courtroom, for the more relaxed atmosphere of the judge's chambers may encourage lawyers to become more diffuse and less intent on the business at hand.
The Informal Conference
Although exercised more subtly, the informal conference also requires a large amount of judicial control. Lawyers are generally not willing to disclose their positions or the nature of their contemplated discovery in advance and, as experience indicates, they will be less enthusiastic over the prospects of target dates for the completion of discovery and the commencement of trial. Yet, these are essential elements of a successful pretrial conference and must be met if the conference is to produce any significant results.
Scheduling
Proper scheduling of the conference is of great importance. For example, in the "big" case it is essential to schedule early or exploratory conferences so that the judge can familiarize himself with the case and establish an orderly discovery process at a saving of both time and money to the parties. Even in the ordinary case some courts have achieved excellent results with an early conference shortly after issue is joined, as well as with a later conference immediately preceding trial.
Since the "big" case has been the subject matter of separate consideration in the Handbook of Recommended Procedures for the Trial of Protracted Cases, we shall not deal further with it here. See 25 F.R.D. 351.
Whether or not an "early" or "exploratory" pretrial conference is held, it is necessary to hold a conference before the case goes to trial. Generally a date between one and three weeks prior to trial and after the completion of discovery is suggested. At the early conference the parties can, at a minimum, agree to stipulate as to such matters as the authenticity of certain documents and the names, addresses and number of witnesses to be called; begin to formulate with particularity the issues of fact and of law to be tried; and agree as to any additional matters which would aid in the disposition of the action. At the same time the court may hear any pending motions.
Conducting the Conference in the Ordinary Case
At the actual conference it is most important that the judge act positively so as to foster the proper attitude on the part of the attorneys. They must be impressed with the importance of the conference and advised, quite candidly, that an attitude of cooperation is necessary.
The judge must determine whether to hold the conference in chambers or in a courtroom on the basis of an evaluation of the size and complexity of the case and the attitudes of the attorneys. As has been noted, the more formal atmosphere of the courtroom often brings about better results in the "big" cases. But the advantages of formality must be weighed against the free "give-and-take" attitude among counsel during a hearing in chambers. Sometimes, however, a judge will be confronted with attorneys who appear to be fencing with each other and engaging in dilatory tactics. In such a situation, in order to impress upon them that the conference is a step in a judicial proceeding, it may be wise to use the courtroom with a reporter present to make a record of the conference. Here too there can be no rigid mold for the conference. It must be adapted to the facts in the particular case, the personalities and attitudes of the attorneys; and ultimately the sound judgment of the court must prevail.
Use of a Court Reporter
It is generally advisable not to have a court reporter make a record of the conference, unless the case is a large and complex one and a complete record is desired. Attorneys are less inclined to enter into a free discussion of the case when they are "on the record". However, it is advisable to have a reporter available so that when counsel are ready to put their agreements on the record, this can be done with dispatch. Many judges find it helpful to dictate their pretrial order directly into the record. In any event, counsel should be assured that relief will be granted from any commitments improvidently entered into at the conference, when such a change of position is necessitated by circumstances arising subsequent to the conference.
The presence of the parties at the conference should be a matter of discretion with the judge and the attorneys. Generally, this practice should not be encouraged since it may serve only to confuse and obstruct formulation of the issues. But, if they are necessary for a stipulation or a grant of authority to settle the case, counsel should arrange to have their clients readily available.
Initiating Discussion at the Conference
At the conference the judge must take the initiative and overcome the natural reluctance of counsel to make concessions. The conference should open with a brief summary by each side of their respective positions. The judge, being completely familiar with the case, should seek to probe the weaknesses of each party's case and seek to discover areas in which there are no real factual or legal disputes; he should seek to eliminate the "dead wood" of frivolous claims and defenses and dispose of any issues which do not concern the actual rights of the litigants. Lawyers tend to be completely subjective in viewing their cases. Often they need the objectivity of the judge to point out the fallacies of their contentions. This is a delicate task for the judge and he will be successful only if he is thoroughly prepared.
Securing the Definition of Issues and Stipulation of Facts
The next step is to secure stipulations of fact developed by the discovery process, state the controlling propositions of law, and obtain any admissions the parties are willing to make as to liability, damages, or other matters. At this point court and counsel should be ready finally to clarify and define with particularity the basic issues for trial which remain still in conflict. Documents can be marked for identification at this time and consent to their admission into evidence obtained. In this manner technical evidentiary objections can be eliminated.Settlement
When these matters are concluded, the judge should discuss the time for commencement of trial, make an estimate of the probable length of the trial and discuss any other matters which may arise in the case. The selection of an early trial date has proven conducive to and, for the most part, essential to a successful pretrial conference. It is also fruitful of compromise settlement, for it is well known that nothing settles law suits like setting them for trial. Whether the setting is made for a date certain, or is made contingent upon the progress of a trial calendar, counsel should be made aware that trial is imminent.
Finally, the judge may approach the task of determining whether there is a possibility of settlement. Experience has shown that many cases are settled at this juncture, since the attorneys have become well aware of the relative strengths and weaknesses of their cases and are thus amenable to settlement discussion. However, it should never be forgotten that settlement is merely a by-product of the pretrial conference and not its prime purpose.
C. THE PRETRIAL ORDER
The accomplishments of the pretrial conference will be lost if a proper pretrial order is not entered. The prime purpose of the order is to govern the future progress of the case. The type of order that will be prepared is a matter of discretion with the judge. There are three basic methods which can be utilized:
(1) The pretrial notice can inform the attorneys that one party (usually the plaintiff) is to present to the court at the conference a "Proposed Pretrial Order." This should be shown to the opposing party prior to the meeting so that any objections can be made. The order can be finalized at the meeting.
(2) The judge can dictate the order directly into the record at the conference or shortly thereafter. This method assures the inclusion of all pertinent items. If a record is made of the entire conference, the minutes can be adopted as the pretrial order.
(3) At the conclusion of the conference the attorneys can be directed to meet within a specified time and draw up an order which is to be submitted to the court, or the judge can prepare the order and the attorneys given a reasonable period of time in which to file any objections they may have.
Attorneys often have difficulty in settling an order between themselves. Regardless of the method used, the judge must carefully direct its formulation and entry. It should be well noted that in the multi-judge districts, often the judge who pre-tries the case does not sit at the trial, so that the order must be as clear and concise as possible if it is to be of any value.
D. SUMMARY
In summary, it is once more to be emphasized that the principal objectives of pretrial must never be obfuscated. The words of Chief Judge Alfred P. Murrah well express the ends to be accomplished:
Pretrial procedure is a common sense method of sifting the issues and reducing the delays and expense of trial so that a suit will go to trial only on questions as to which there is an honest dispute of fact or law.
Pretrial Procedure, A Statement of Its Essentials, by Honorable Alfred P. Murrah, 14 F.R.D. 417.
In short, we must seek to strip each case to its essentials, require (1) the stipulation of matters in which there is no dispute, (2) the specification of issues with particularity, and (3) the formulation of an efficient trial plan, so that the court and jury may expeditiously determine the rights of litigants without diversion by technical objections, unnecessary exhibits, testimony of cumulative witnesses, or any other extraneous considerations. We must discharge our judicial responsibility for use of "the pretrial discovery-deposition mechanism * * * along with the pretrial hearings under Rule 16, to narrow and clarify the basic issues between the parties * * *" and to assure "mutual knowledge of all the relevant facts * * * so that civil trials in the federal courts no longer be carried on in the dark."
Hickman v. Taylor, 329 U.S. 495, 500-501, 507-508, 67 S.Ct. 385, 91 L.Ed. 451.
Local rules, court orders, and forms, setting forth pretrial directions to counsel, are appended hereto:
1. Calendar Rules 13, 14, and 16 of the United States District Court for the Southern District of New York, a master calendar court.
2. Suggested local rules for pretrial, notice of pretrial conference, and form of pretrial order, United States District Court for the District of New Jersey, an individual assignment court.
3. Notice of preliminary pretrial conference, memorandum to counsel regarding discovery motions, notice and order for pretrial and trial, by an individual calendar judge, United States District Court for the Northern District of Texas, an individual assignment court.
4. Notice and standing order re: Pretrial conference in Judge Robson's court, form of pretrial order, United States District Court for the Northern District of Illinois, an individual assignment court.
5. Notice of pretrial conference and order expediting trial, United States District Court for the Southern District of Indiana.
6. Pretrial order, United States District Court for the District of Utah.
See Pretrial Conference-A Study of Methods, by Honorable William F. Smith, Proceedings of the Seminar on Procedures for Effective Judicial Administration, 29 F.R.D. 191, at pages 348 and 353.
APPENDIX 1 CALENDAR RULES 13, 14 and 16 OF THE UNITED STATES DISTRICT COURT for the SOUTHERN DISTRICT OF NEW YORK
RULE 13. PRE-TRIAL CONFERENCE
(a) Pre-Trial — Specially OrderedAfter joinder of issue and at any time before the cause appears on the Assignment and Pre-Trial Conference Call, the Chief Judge, on written notice and for good cause shown, may set the cause for pre-trial conference for a day certain. The deputy clerk for calendars shall thereupon mail a notice of the conference to the attorneys of record. The notice shall be in the form set forth in Rule 13(b)(1) below, except that the attorneys shall conform their respective memoranda to the type of cause at hand, and to the stage of the proceedings at the time of Conference.
(b) Part I Pre-Trial Conference
At the Assignment and Pre-Trial Conference, the Part 1 Judge shall informally pre-try all causes before they are placed upon the Ready Day Calendar, unless such causes have previously been pre-tried before a judge.
The notice in the Law Journal shall designate the conferences "Assignment and Pre-Trial Conferences" and shall indicate that the attorneys are required to meet in advance of and in preparation for the pre-trial conference in accordance with the requirements set forth in the court order received in advance by the attorneys of record. (See Rule 13(b)(1) below).
(1) Preparation for Pre-Trial Conference and for Trial
When a case is advanced to one of the Reserve Calendars, the following notice in the form of a court order, shall be forwarded by the deputy clerk for calendars to the attorneys of record, over the signature of the then presiding Part 1 Judge.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK _____________________________X Plaintiff -against- Civ. _______________ Defendant ORDER _____________________________X The attorneys in the above captioned action are hereby notified that this case will shortly be called for Pre-Trial Conference and Assignment pursuant to Calendar Rules 6 and 13. Counsel will be notified by the deputy clerk for calendars of the exact time and date of this Conference.The following steps are to be taken in preparation for such Conference and failure to comply with these requirements may lead to the imposition of penalties contained in Calendar Rule 16.
I. Within seven (7) days of the date of this order, trial counsel must be appointed by all parties and the designation thereof shall immediately be filed with the Clerk of the Court.
II. Counsel are advised that by the filing of a note of issue, or the failure to make objection thereto, they have certified to the Court that all discovery matters have been completed and the case is in all respects ready for trial.
III. Within fifteen (15) days of the date of this Order, the attorneys for all parties shall meet together at a convenient time and place for the purpose of arriving at stipulations and agreements, all for the purpose of simplifying the issues to be tried. At this Conference between counsel, all exhibits should be exchanged and examined and counsel shall also exchange a list of the names and addresses of all witnesses to be called at the trial including therein the specialties of experts to be called. Each side shall then prepare a pre-trial memorandum which shall be filed with the deputy clerk for calendars not later than twenty-five (25) days from the date of this Order. If agreement can be reached, this memorandum may be prepared jointly between counsel and so submitted.
The memorandum shall be as concise as possible, and shall state the date the conference between the attorneys was held, and cover the following items:
(a) A brief statement as to federal court jurisdiction.
(b) A brief statement of the positions of the respective parties including therein any relevant and material facts as to which there is no dispute.
(i) With respect to negligence cases, the plaintiff should set forth:
Acts of negligence claimed.
Specific laws and regulations alleged to have been violated.
A statement as to whether the doctrine of res ipsa loquitur is relied upon, and the basis for such reliance.
A detailed list of personal injuries claimed.
A detailed list of permanent personal injuries claimed, including the nature and extent thereof.
The age of the plaintiff.
The life and work expectancy of the plaintiff, if permanent injury is claimed.
An itemized statement of all special damages, such as medical, hospital, nursing, etc., expenses, with the amount and to whom paid.
A detailed statement of loss of earnings claimed.
A detailed list of any property damage.
In wrongful death actions, the further information as follows:
Decedent's date of birth, marital status, including age of surviving spouse, employment for five years before date of death, work expectancy, reasonable probability of promotion, rate of earnings for five years before date of death, life expectancy under the mortality tables, general physical condition immediately prior to date of death.
The names, dates of birth, and relationship of decedent's dependents.
The amounts of monetary contributions or their equivalent made to each of such dependents by decedent for a five-year period prior to date of death. A statement of the decedent's personal expenses and a fair allocation of the usual family expenses for decedent's living for a period of at least three years prior to the date of death; amount claimed for care, advice, nurture, guidance, training, etc., by the deceased, if a parent, during the minority of any dependent.
* * * * * *
The defendant shall set forth any acts of contributory negligence claimed, in addition to any other defenses he intends to interpose.
(ii) In contract cases, the parties should set forth:
Whether the contract relied on was oral or in writing.
The date thereof and the parties thereto.
The terms of the contract which are relied on by the party.
Any collateral oral agreement, if claimed, and the terms thereof.
Any specific breach of contract claimed.
Any misrepresentations of fact alleged.
An itemized statement of damages claimed to have resulted from any alleged breach, the source of such information, how computed, and any books or records available to sustain such damage claim.
Whether modification of the contract or waiver of covenant is claimed, and if so, what modification or waiver and how accomplished.
(iii) In the event this case does not fall within the above enumerated categories, counsel shall, nevertheless, set forth their positions with as much detail as possible.
(c) The facts that are not admitted and that, therefore, will be litigated. This shall be a concise recital of all evidentiary and ultimate facts which each party contends, still remain at issue to be litigated at trial.
(d) Any amendments required of the pleadings.
(e) Any tender of issues in the pleadings that are to be abandoned.
(f) A brief statement with respect to the applicable law, containing therein citation to all cases and statutes relied upon.
(g) A list of all the exhibits each party expects to offer at the trial, with a description of each exhibit sufficient for identification, the purpose for which it is offered and a specification of any objections counsel may have. If no such specification is noted, it will be presumed that counsel has no objection to the introduction of these exhibits.
(h) A list of the witnesses which each party intends to call, along with the specialties of experts to be called.
IV. On the day of the Conference counsel for the plaintiff shall submit to the Court a "Proposed Pre-Trial Order" in accordance with the form set forth in Calendar Rule 14(a)(1) in-sofar as it is applicable.
V. Counsel shall be prepared to discuss any other pre-trial relief sought.
VI. Counsel are cautioned to obtain prior authority from their clients to enter into stipulations at the Pre-Trial Conference with reference to the facts and issues in the case.
SUBSEQUENT TO PRE-TRIAL
At least one day before a case is actually scheduled to go to trial, there shall be submitted to the trial judge, unless notified to contrary, the following:
(a) Marked pleadings as required by General Rule 6(b).
(b) A trial brief by each party. The brief shall contain a clear and concise statement of the facts and law relied upon. Briefs must be typewritten, and shall be double-spaced, except for quotations. Copies of all foreign statutes involved should be supplied, together with references to the sources thereof.
(c) In non-jury cases proposed findings of fact and conclusions of law by each party, the citation or citations, if available, for each proposed conclusion of law.
(d) In jury cases by each party requested charges to the jury covering the issues to be litigated, together with appropriate citations of authority for each request.Dated: _______________ _______________ U. S. D. J. _____________________________________________ (2) Records of Compliance
The deputy clerk for calendars shall advise the Part 1 Judge of all memoranda which have not been submitted on the due dates. The Part 1 Judge shall impose sanctions immediately upon such notification, unless the attorney shall have submitted an affidavit prior to this time setting forth good and sufficient reason why the memorandum has not been submitted. The Part 1 Judge may notify the attorney to appear before him to explain further the reasons for counsel's failure to comply with this rule.
The deputy clerk for calendars shall keep the following record for each case: Date of Preliminary Conference between Attorneys:
____________________________________ Pre-Trial Memorandum Due: _____________________________ Pre-Trial Memorandum Received: ________________________ Conference held in Part I: ____________________________ Pre-Trial Order entered: ______________________________ The memoranda and proposed orders to be submitted by counsel will be made part of the official court file along with the pretrial order entered by the Part 1 Judge.(c) Settlement
The matter of settlement may be discussed at the pre-trial conference but the discussion shall not be mentioned in the order entered on the pre-trial conference. If an attorney for a party-fails to appear at a pre-trial conference, the pre-trial judge may act as in the case of a non-appearance for trial.
RULE 14. THE PRE-TRIAL ORDER
(a) At any pre-trial conference held pursuant to Calendar Rule 13, the judge shall make an order which shall recite the action taken at the pre-trial conference, to which order the attorneys shall affix their signatures with respect to stipulations and agreements set forth in the order. The order when entered shall control the subsequent course of the action unless modified by the pre-trial judge, or by the trial judge, to prevent manifest injustice.
The pre-trial judge in his discretion may enter an order in accordance with any of the categories set forth below:
(1) The judge may enter an order in the following form subject to such additions and modifications as he may deem advisable:
(Caption)
The parties to this action or their attorneys having appeared before the court at a pre-trial conference pursuant to Rule of Civil Procedure 16, the following action was taken:
(i) It is ordered that the following amendments to the pleadings are allowed: ___________________________ __________________________________________________ (ii) The parties agreed that the trial of this action shall be based upon the pleadings as amended, except that the following issues raised by the pleadings are aban- doned: __________________________________________________ __________________________________________________ (iii) The parties stipulated the following facts: __________________________________________________ __________________________________________________ (iv) The parties agreed that the following documents, which were marked for identification, may be received in evidence: _____________________________________ __________________________________________________ (v) The parties agreed to limit the number of expert wit- nesses as follow: ________________________________ __________________________________________________ (vi) The parties agreed that the following are all of the claims for damages or for other relief in this action, as of the date of this conference: _______________ __________________________________________________ __________________________________________________ (vii) The parties also agreed on the following matters: __________________________________________________ (viii) The issues to be tried are formulated by the court as follow: __________________________________________ __________________________________________________ Note: Blank copies of the pre-trial order may be ob- tained at the office of the deputy clerk for calendars. (2) The judge may enter the "Proposed Pre-Trial Order" submitted by the plaintiff pursuant to Calendar Rule 13(b)(1).(3) The judge may dictate into the record, in the presence of the attorneys, all actions taken at the conference. This shall be transcribed by the court stenographer and signed by the judge and shall constitute the pre-trial order.
(4) The judge may prepare and sign any other memorandum of the actions taken at the conference, which shall be entered as the pre-trial order.
RULE 16. SANCTIONS
In the sound discretion of any judge of this court, one or more of the following sanctions may be imposed for failure to comply with the Calendar Rules:
(a) Preclusion Orders
Where counsel has failed to complete trial preparations prior to his filing of a note of issue or permitting the filing thereof pursuant to Calendar Rule 5, counsel may be precluded from offering specific evidence or from raising certain issues where said evidence was obtained or said issues were first raised after the note of issue was filed.
(b) Dismissal or Default
Failure of counsel for any party to appear before the court at pre-trial conference or to complete the necessary preparations therefor, or to be prepared for trial when assigned, may be considered an abandonment or failure to prosecute or defend diligently, and judgment may be entered against the defaulting party either with respect to a specific issue or on the entire case.
(c) Imposition of Costs on Attorneys
If counsel fails to comply with any of the Calendar Rules and the judge finds that the sanctions in sections (a) and (b) above are either inadequate or unjust to the parties in light of the facts or circumstances, he may, in addition to, or in lieu of, such sanctions assess reasonable costs directly against counsel whose action has obstructed the effective administration of the court's business.
APPENDIX 2 SUGGESTED LOCAL RULES FOR PRETRIAL, NOTICE OF PRETRIAL CONFERENCE AND FORM OF PRETRIAL ORDER, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY A. SUGGESTED LOCAL RULES FOR PRETRIAL I. Pretrial may be requested of the court at any time. All cases shall be pretried unless the same is waived by order of the court.
II. Counsel shall complete all discovery procedures and prepare the case for trial within six months after issue is joined, unless shortened or enlarged by order of the court. Violation of this rule will subject parties to dismissal of the action, or other appropriate penalty.
III. Plaintiff's counsel, at least ten days prior to pretrial hearing, shall hold a conference with defense counsel and, on or before date of pretrial, submit to the court a proposed pretrial order in accordance with these rules. If such order is full and complete and requires no hearing before the court, pretrial hearing will be waived by the court.
IV. It is the duty of counsel to bring to the attention of the court prior to pretrial hearing any motions in the case not disposed of.
MATTERS TO BE COVERED BY PRETRIAL STIPULATION
The proposed pretrial order submitted by counsel to the court shall contain statements of agreements and disagreements concerning the following:
1. Questions to be propounded to the jury as to their legal qualifications.
(a) Requests of counsel for peremptory challenges in excess of the number provided by Section 1870, Title 28, U.S.C. and Rule 47(b) of the Federal Rules of Civil Procedure.
2. A short and succinct statement by plaintiff as to his cause of action.
3. A short and succinct statement by defendant as to all defenses (enumerating all special defenses urged) and as to any cross-bill a short and succinct statement of the same, and all other matters in connection therewith hereby required of plaintiff.
4. Lists of documentary evidence to be offered by each side upon the trial, as follows:
(a) All documents to be offered by the plaintiff to which no objection shall be made, numbered serially as plaintiff's exhibits.
(b) All such documents to be offered by plaintiff to which objection is made, numbered serially to follow (a) above and objection urged thereto, such documents to be produced at pretrial.
(c) All documents to be offered by defendant and admitted in evidence without objection, numbered serially as defendant's exhibits.
(d) All documents to be offered by defendant to which objections are made, numbered serially to follow (c) above together with objections urged thereto, such documents to be produced at pretrial.
5. Where only comparatively small portions of documents are to be admitted in evidence only a copy of the portions to be admitted shall be offered. Where practicable, summaries of the contents of documents shall be put in evidence in lieu of the documents.
6. Names of witnesses whose depositions will be offered and objections, if any, to the use of the depositions in lieu of the presence of the witness.
(a) Objections by each party to any portions of the depositions to be offered by opposing counsel to be ruled upon at pretrial.
(b) Summary of the contents of depositions to be read to the jury where the depositions exceed fifty pages in length, or where directed by the court.
(c) When ordered by the court indication by counsel offering depositions of the portions to be read and indication by opposing counsel of the portions required to be read in the same context.
7. Requests to charge shall be made in triplicate and each request shall be contained on a separate paper, numbered seriatim. One copy shall be served on opposing counsel, one copy filed by the court with the clerk, and the other copy retained by counsel offering the same with notation thereon as to action of the court in regard thereto.
Any additional requests to charge may be made as to matters arising during the trial.
This procedure allows the court when receiving a large number of requests from each side, to arrange the same in the proper order to be given, and to eliminate duplications and repetitions.
RULES FOR DAMAGE SUITS
While the foregoing rules pertain to all trials, the following are applicable in damage suits.8. Plaintiff's counsel (and in case of a cross-bill, defense counsel) shall enumerate the following unless fully alleged in the pleadings.
(a) All of the acts of negligence relied upon and all rules, regulations, statutes and ordinances allegedly violated.
(b) All rules, regulations, statutes and ordinances relied upon by either party by way of comparative negligence or contributory negligence.
(c) Contentions of the parties if there is any dispute as to the agency of the driver of either plaintiff's or defendant's vehicle.
(d) A plat of the scene of the accident, formal or informal, showing the location and width of highways, all pertinent physical objects and all distances (particularly length of vision involved). The same shall be prepared by plaintiff's counsel and submitted to defense counsel who shall agree thereto or make any objections desired.
9. All items of special damages sought by the plaintiff not contained in the pleadings shall be enumerated, such as bills for medical attention, hospitals, repairs to automobiles, lost wages, earnings and profits, and all documents in connection therewith treated as referred in Rule 4 above.
(a) In all actions involving alleged permanent injuries or death a full statement shall be made as to the age and alleged expectancy, and the probable duration of the injuries, and
(b) Full details as to wages or salary of the person injured, and where self-employed a full explanation of the proof to be relied upon to show earnings, including books, records and income tax returns.
10. As to the trial there shall be stated:
(a) Names of witnesses which each party will definitely have present at the trial, with a brief statement as to nature of their testimony as to negligence, damages, etc.
(b) Names of witnesses which parties may intend to use at the trial.
(c) Estimated time to be required for both the plaintiff and defendant to present their case.
(d) Whether there shall be a general verdict or special inter-rogatories to the jury.
(e) Whether the trial should be made separately on any particular issue.
11. Any other matters desired to be covered by any counsel.
12. The pretrial order may be amended by the court at any time upon motion to prevent manifest injustice. B. NOTICE OF PRETRIAL CONFERENCE
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY NEWARK, N.J. June 26, 1961 TAKE NOTICE: Pursuant to Rule 16 of the Federal Rules of Civil Procedure, 28 U.S.C.A., pretrial conferences will be held in the cases listed on the annexed calendar on the date and at the time indicated. (Courtroom No. 5, Post Office Building). It is required that the conference be attended by an attorney authorized to enter into such agreements and stipulations as may be appropriate, preferably the attorney who is to try the case.THE ATTORNEYS FOR THE RESPECTIVE PARTIES ARE HEREBY DIRECTED TO:
1. Confer in advance of the pretrial conference and to report to the Court at the time of the conference on the prospects of settlement.
2. Submit to the Court the following:
(a) A written stipulation or statement of the uncontested facts.
(b) A written statement which shall contain, under proper topical heading, the following: A concise summary of the essential facts; a recital of the contested issues of fact and law; an itemized statement of special damages; and the names and addresses of prospective witnesses.
(c) Written exhibits and printed documents which will be offered in evidence at the trial of the action.
(d) Written waivers of claims or defenses which will be abandoned.
NOTE: The pretrial conference can be more expeditiously conducted if the attorneys for the respective parties will, prior thereto, exchange the written statements required under subdivision (b) and permit the inspection of exhibits and documents to be submitted as required under subdivision (c).
AT THE PRETRIAL CONFERENCE THE COURT WILL CONSIDER:
1. Preliminary motions addressed to the pleadings.2. Applications for leave to amend pleadings.
3. The simplification of issues.
4. The limitation on the number of expert witnesses.
5. The prospects of settlement.
6. The desirability of trial briefs.
7. Such other matters as may aid in the disposition of the action.
Where the case is terminated by settlement or otherwise, prior to either the pretrial conference or the assigned trial date, the attorneys for the respective parties shall make prompt report to the Clerk of the Court.
BY ORDER OF THE COURT.
Michael Keller, Jr. Clerk BY: Edward T. Healey, Jr. Deputy Clerk C. FORM OF PRETRIAL ORDER UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Plaintiff(s) Civil Action No. vs. PRETRIAL ORDER Defendant(s) This matter having come before the Court at a pretrial conference held pursuant to Rule 16 of the Federal Rules of Civil Procedure, 28 U.S.C.A.; andhaving appeared as counsel for the plaintiff(s), and
having appeared as counsel for the defendant(s);
the following action was taken:
NATURE OF ACTION AND JURISDICTION
This is an action for _____ and the jurisdiction of the Court is invoked under Section of Title U.S.C.A. The jurisdiction of the Court is (not) disputed. The question of jurisdiction was decided as follows:
Breach of Contract, personal injury, etc.
If jurisdictional question is raised and decided, recite action taken by the Court.
The following stipulations and statements were submitted, ordered filed, and made a part of this order:
(a) A written stipulation or statement of the uncontested facts;
(b) A written statement of the contested issues of fact and of law filed on behalf of the plaintiff(s);
(c) A written statement of the contested issues of fact and of law filed on behalf of the defendant(s);
(d) Written waivers of claims and defenses which have been abandoned by the parties.
The foregoing were modified at the pretrial conference as follows:
(If none, recite "None").
PLAINTIFF(S) (A)
The following exhibits were offered by the plaintiff(s), received in evidence, and marked as herein indicated:(Identification number and brief description of exhibit)
(B)
The following exhibits were offered by the defendant(s) and marked for identification. There was reserved to the plaintiff(s) the right to object to their receipt in evidence on the grounds stated:(Identification number and brief description of exhibit. State briefly ground of objection, e. g., competency, relevancy, materiality).
The following additional action was taken:
(Amendments to pleadings, agreements of the parties, disposition of motions, etc., if necessary. If no such action was taken, recite "None").
LIMITATIONS AND RESERVATIONS (A)
The plaintiff(s) is limited to _____ expert witnesses, whose names shall be disclosed to the defendant(s). The defendant(s) is limited to _____ expert witnesses, whose names shall be disclosed to the plaintiff(s). There is reserved to each of the parties the right, however, to offer rebuttal testimony of other expert witnesses if necessary.(B)
There is reserved to each of the parties the right to further supplement the list of witnesses upon application to the Court, and for good cause shown, and upon disclosure of the names and addresses of the additional witnesses.
(C)
There is reserved to each of the parties the right to call such rebuttal witnesses as may be necessary, without prior notice thereof to the other party.
(D).
The probable length of trial is _____ days. The case will be listed on the trial calendar for the week _____ of, the case to be tried when reached.
IT IS ORDERED that this pretrial order may be modified at the trial of the action, or prior thereto, to prevent manifest injustice. Such modification may be made either on application of counsel for the parties or on motion of the Court;
IT IS FURTHER ORDERED that requests for instructions shall be submitted to the trial court at the commencement of the trial, but there is reserved to counsel for the respective parties the right to submit supplemental requests for instructions during the course of the trial or at the conclusion of the evidence on matters that cannot be reasonably anticipated.
____________________ JUDGE Date: APPROVED AS TO FORM AND SUBSTANCE. _______________________ Attorney for Plaintiff(s) _______________________ Attorney for Defendant(s) NOTE: Where a third-party defendant is joined pursuant to Rule 14(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. the pretrial order may be suitably modified: the initial page may be modified to reflect the joinder.APPENDIX 3 NOTICE OF PRELIMINARY PRETRIAL CONFERENCE, MEMORANDUM TO COUNSEL REGARDING DISCOVERY MOTIONS, NOTICE AND ORDER FOR PRETRIAL AND TRIAL, BY AN INDIVIDUAL CALENDAR JUDGE, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS United States District Court NORTHERN DISTRICT OF TEXAS DALLAS, TEXAS 75221 CHAMBERS OF JOE EWING ESTES CHIEF JUDGE Re: Civil Action No. NOTICE OF PRELIMINARY PRETRIAL CONFERENCE TO ALL COUNSEL OF RECORD Gentlemen:
All parties are directed to appear on the _____ day _____ of 1964, at o'clock, m., at a Preliminary Pre-trial Conference in the above captioned action. At such conference questions concerning the pleadings, jurisdiction, venue, pending motions and the possibility of settlement will be considered; the issues of fact and law will be explored and their simplification and formulation with particularity will be commenced.
Within 15 days from this date, counsel for all parties will confer at a convenient time and place to discuss these matters and to exchange known exhibits and names of known witnesses.
Counsel will bring to the Preliminary Pretrial Conference stipulations as to material matters not considered to be in genuine dispute and lists of known witnesses and documents which may be offered in evidence.
The Court's "Memorandum to Counsel Regarding Discovery Motions" is enclosed.
Very truly yours, United States District Judge [EXPLANATORY NOTE TO JUDGES:The above notice is issued between 60 and 90 days after the commencement of the action or, where discovery or a Rule 12 motion is filed, at such earlier time as the court's docket will permit.]
PRETRIAL MEMORANDUM TO COUNSEL REGARDING DISCOVERY MOTIONS CIVIL ACTION NO. ___ IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION The purpose of the Federal Rules of Civil Procedure is the "just, speedy and inexpensive" determination of every action. Rule 1.In Hickman v. Taylor, 329 U.S. 495, 500-501, 507-508, 67 S.Ct. 385, 91 L.Ed. 451, the Supreme Court stated:
"The pre-trial deposition-discovery mechanism established by Rules 26 to 37 is one of the most significant innovations of the Federal Rules of Civil Procedure * * * The new-rules * * * invest the deposition-discovery process with a vital role in the preparation for trial. The various instruments of discovery now serve (1) as a device, along with the pre-trial hearings under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, relative to those issues. Thus civil trials in the federal courts no longer need be carried on in the dark.
"* * * (T)he deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of `fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession" before the trial * * * "thus reducing the possibility of surprise. But discovery * * * has ultimate and necessary boundaries. As indicated by Rules 30(b) and (d), limitations inevitably must be imposed when it can be shown that the examination is being conducted in bad faith or in such a manner as to annoy, embarrass or oppress the person subject to the inquiry. And as Rule 26(b) provides * * * when the inquiry touches upon the irrelevant, or encroaches upon the recognized domains of privilege."
Professor Moore, 4 Moore's Federal Practice, pp. 1014-1016, has enumerated the benefits of discovery in capsule form:
"1. It is of great assistance in ascertaining the truth and in checking and preventing perjury.
"2. It is an effective means of detecting and exposing false, fraudulent, and sham claims and defenses.
"3. It makes available in a simple, convenient, and often inexpensive way facts which otherwise could not have been proved, except with great difficulty and sometimes not at all.
"4. It educates the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging settlements out of court.
"5. It expedites the disposal of litigation, saves the time of the courts, and clears the docket of many cases by settlements and dismissals which otherwise would have to be tried.
"6. It safeguards against surprise at the trial, prevents delays and narrows and simplifies the issues to be tried, thereby expediting the trial.
"7. It facilitates both the preparation and the trial of the cases."Rule 37 lists the consequences of refusal to make discovery.
Under Rule 41(b) failure to comply with pretrial directions justifies dismissal, or payment of adversary's costs and attorney's fees; 28 U.S.C. Sec. 1927 makes counsel liable for increased costs "unreasonably and vexatiously" incurred by attorney's action. Bardin v. Mondon, 2 Cir., 298 F.2d 235; 5 Moore (2) par. 41.12, p. 1040; Link v. Wabash R. R. Co. (1962), 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734. Ohliger v. United States, 2 Cir., 308 F.2d 667, upholds dismissal for failure to respond to interrogatories. Rule 7(b)(2) makes Rule 11 regarding effect of attorney's violations of Rule 11 applicable to motions and other papers, 29 F.R.D. 311.
In an excellent article on "Tactical Advantages from the Use of Discovery," 27 Tenn. L. Rev. 323, 331, Dean Wicker has said:
"There is usually no point in objecting to a failure of the other lawyer to give the required type of notice, when you know that he is legally entitled to the requested information and is determined to get it. One of the earmarks of a lawyer who gets along well with his fellow lawyers and his clients is that he courteously complies with all requests for the doing of acts which he knows that ultimately he can be compelled to do * * * One of the by-products of the procedural system of full disclosure * * * is that attorneys become accustomed to showing their hands to their adversaries, and eventually take pride in using that kind of machinery for arriving at settlements or trying cases on the merits."
In Berger v. Brannan, 172 F.2d 241, 243 (10 Cir. 1949), cert. den. 337 U.S. 941, 69 S.Ct. 1519, 93 L.Ed. 1746 (1949) the Court said:
"The spirit of a pre-trial procedure is not only to call the parties together and ask them to stipulate as to all matters concerning which there can be no dispute, but to compel them to stipulate and agree as to all facts concerning which there can be no real issue. The Court has a right to compel the parties to do this."
I am sure that counsel will neither seek improper nor obstruct proper discovery. I trust the foregoing will enable you to resolve the discovery problems in this case yourselves. Counsel will confer promptly and use their best efforts to this end. If you are unable to settle these matters, you will advise the Court and a preliminary pre-trial conference and hearing of the motions will be set immediately. Each side will bring to the pre-trial conference and hearing of discovery motions a brief and concise memorandum of authorities for and against each specific type of document, line of interrogation, or other discovery item in dispute.
__________________________________ CHIEF UNITED STATES DISTRICT JUDGE [EXPLANATORY NOTE TO JUDGES:The memorandum above is mailed to counsel by the Clerk immediately after the filing of a discovery motion.
This pretrial memorandum to counsel regarding discovery motions has been adopted verbatim for use in Judge Edwin A. Robson's court in the United States District Court for the Northern District of Illinois. See Appendix 4.]
NOTICE AND ORDER FOR PRETRIAL CONFERENCE AND FOR TRIAL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ORDER
IT IS ORDERED that the attached Pretrial Notice shall be mailed to counsel for all parties in all cases scheduled for pretrial and trial during the ___________________ Term of Court, with the Court Calendar listing such cases; and that counsel shall do and perform the matters and things set forth in such notice.ENTERED this __________ day of _______________________, 196_.
________________________________________________ UNITED STATES DISTRICT JUDGE [EXPLANATORY NOTE TO JUDGES:Counsel's failure to comply with pretrial directions justifies dismissal under Rule 41(b), or payment of adversary's costs and attorney's fees. 28 U.S.C. § 1927 makes counsel liable for increased costs "unreasonably and vexatiously" incurred by attorney's action. Bardin v. Mondon, (2 Cir. 1961, Kaufman, J.) 298 F.2d 235; 5 Moore (2d) par. 41.12, p. 1040; Link v. Wabash R. R. Co., (1962), 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734; Nasser v. Isthmian Lines, (2 Cir. 1964, Kaufman, J.) 331 F.2d 124; Trans World Airlines, Inc. v. Hughes, (2 Cir. 1964, Lumbard, C. J.) 332 F.2d 602.]
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS PRETRIAL NOTICE
TAKE NOTICE:
Prior to the pretrial conference, counsel will complete all discovery.
Counsel for all parties in all cases listed on the attached pretrial and trial calendar are directed to confer at their earliest convenience for the purpose of arriving at all possible stipulations and the exchange of documents and names of witnesses (except those for impeachment only) which will be offered in evidence at the trial. These conferences of counsel will be held prior to the pretrial hearings in order that counsel for all parties can furnish each other a statement of the real issues each party will offer evidence to support, eliminating any issues which might appear in the pleadings about which there is no real controversy and including in such statement issues of law as well as ultimate issues of fact from the standpoint of each party. Counsel for plaintiff will then prepare a proposed pretrial order for presentation to the Judge for entry at the pretrial hearing. The order will set forth:
(1) any jurisdictional question.
(2) any question raised by pending motions,
(3) a concise summary of the ultimate facts claimed (a) by Plaintiff, (b) by Defendant, (c) by other parties.
(4) facts established by pleadings or by stipulations or admissions of counsel,
(5) contested issues of fact,
(6) contested issues of law,
(7) exhibits (except documents for impeachment only) to be offered in evidence by the parties respectively,
(8) witnesses for all parties (Indicate which will be called in the absence of reasonable notice to opposing counsel to the contrary and which may be called as a possibility only). In the event there are other witnesses to be called at the trial, their names and addresses and the general subject matter of their testimony will be reported to opposing counsel prior to trial. This restriction shall not apply to rebuttal witnesses, the necessity of whose testimony cannot reasonably be anticipated before the time of trial.
(9) any requested amendments to the pleadings,
(10) any additional matters to aid in the disposition of the action,
(11) the probable length of the trial.
All motions must be supported by a brief memorandum of authorities filed with (or included in) the motion. All motions not determined on the moving papers will be heard at a pretrial conference.
The attorneys who will try the case will familiarize themselves with pretrial procedures and come to the conference with full authority to accomplish their purpose: simplifying and defining the triable issues, expediting the trial, and saving expense. See Rule 16, Federal Rules of Civil Procedure, Title 28, U.S.C.A.; 3 Moore's Federal Practice, par. 16.01 to 16.21; 1A Barron Holtzoff Federal Practice and Procedure, par. 471-473; 23 Federal Rules Decisions pp. 129-130; Personal Injury Litigation in Texas pp. 287-306.
Counsel will report to the Court at the time of the conference on the prospects of settlement.
Should a party or his attorney fail to appear at the pretrial or to comply with the directions set out above, an ex parte hearing may be held and judgment of dismissal or default or other appropriate judgment entered or sanctions imposed.
At least one day before a case is scheduled to go to trial, there shall be submitted to the Court (a) requests for jury instructions and issues in JURY cases or (b) proposed findings of fact and conclusions of law, with citations of authorities for each proposed conclusion of law, in NON-JURY cases.
BY ORDER OF THE COURT.
JOHN A. LOWTHER, Clerk By ___________________ Deputy [EXPLANATORY NOTE TO JUDGES:The above Pretrial Notice is issued after fair opportunity for completion of discovery and after the case has been set for final pretrial conference and for trial on dates specified in the combined Pretrial and Trial Calendar for each term of court. This notice (with the calendar attached) is served three or four weeks prior to commencement of final pretrial conferences, which are scheduled from one to three weeks before commencement of trials.]
APPENDIX 4 NOTICE AND STANDING ORDER RE: PRETRIAL CONFERENCE IN JUDGE ROBSON'S COURT, FORM OF PRETRIAL ORDER, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS UNITED STATES DISTRICT COURT CHICAGO, ILLINOIS 60604 CHAMBERS OF JUDGE EDWIN A. ROBSON Tel.: 828-5454 To all Counsel of RecordGentlemen:
The cause listed on the enclosed minute order is set for preliminary pre-trial in my chambers at the time and on the date therein designated.
I am enclosing my standing order pertaining to pre-trial conferences. You will pay particular attention to Section I.
If for good cause a representative of your office acquainted with all of the details of the case is unable to attend, a motion must be made at least one week in advance of the date to have the preliminary pre-trial continued.
For your information, I am enclosing a statement of my attitude on discovery.
Thank you for your cooperation.
Yours truly, EDWIN A. ROBSON [EXPLANATORY NOTE TO JUDGES:The pretrial memorandum to counsel regarding discovery motions used by Chief Judge Joe E. Estes in the Northern District of Texas, set out in Appendix 3, has been adopted verbatim for use in Judge Robson's court.]
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
STANDING ORDER RE: PRE-TRIAL CONFERENCES IN JUDGE ROBSON'S COURT I. A preliminary pre-trial conference will customarily be held on notice between sixty and ninety days after filing of each Civil Cause assigned to Judge Robson. At such conference counsel should be prepared to discuss any questions con- cerning the pleadings, jurisdiction, venue, pending motions, etc., as well as the probable length of discovery and the possibility of settlement of the case. At the conclusion of such conference, a date for a report on status will be set if the case is not disposed of by settlement or otherwise. II. A final pre-trial conference will be scheduled by the Court approximately thirty days prior to the date it is estimated that the case will be reached for trial. III. Notice of such final pre-trial conference will be given to all counsel in sufficient time, customarily not less than ten days, so that they may, and they are hereby directed to, confer in advance of such pre-trial conference for the following pur- poses: A. Enter into a written stipulation or statement of all un- contested facts. B. Enter into written stipulations or statements as to the undisputed qualifications of all expert witnesses. C. Examine and mark all exhibits which any of them in- tend to introduce at the trial. D. Agree as to the authenticity and admissibility of such exhibits so far as possible and note the grounds for objection to any not so agreed upon. E. Explore the prospects of settlement. IV. At such final pre-trial conference, which shall be attended by attorneys representing all parties and authorized to enter into such agreements as may be appropriate, presum- ably the counsel who are to try the case, counsel shall sub- mit to the Court the following: A. The written stipulation or statement of the uncontested facts. B. Schedules of all exhibits which will be offered in evi- dence at the trial together with an indication of those agreed to be admissible and the grounds for objection to any not so agreed upon. Only exhibits so listed shall be offered in evidence at the trial except for good cause shown. C. Brief written statements which it is recommended that counsel exchange prior to the conference and which shall contain under proper topical headings, the fol- lowing: 1. A concise summary of the essential facts. 2. A recital of the contested issues of fact and law. 3. An itemized statement of special damages. 4. The names and addresses of all prospective wit- nesses. Only witnesses so listed will be permitted to testify at the trial except for good cause shown. D. Written waivers of claims or defenses, if any. V. At such final pre-trial conference the Court will consider: A. The simplification of the issues. B. The necessity or desirability of amendments to the pleadings. C. The separation of issues. D. The limitation of the number of expert witnesses. E. The desirability of trial briefs. F. The prospects of settlement. G. Such other matters as may aid in the disposition of the action. VI. At the conclusion of such pre-trial conference, an appropri- ate order will be entered reflecting the action taken at such conference and the case added to the Court's Trial Calen- dar. Failure of counsel to appear at any scheduled pre- trial conference or otherwise to comply with the provisions of this order may result in dismissal or default as may be appropriate. ________________________________ Judge Date:FORM OF PRETRIAL ORDER
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ) ) ) ) ) Plaintiff(s). ) Civil Action No. ) ) ) ) PRETRIAL ORDER ) ) Defendant(s). ) This matter having come before the Court at a pretrial conference held pursuant to Rule 16 of the Federal Rules of Civil Procedure, 28 U.S.C.; andhaving appeared as counsel for the plaintiff(s), and having appeared as counsel for the defendant(s); the following action was taken:
NATURE OF ACTION AND JURISDICTION
This is an action for _____ and the jurisdiction of the Court is invoked under Section _____ of Title _____ U.S.C. The jurisdiction of the Court is (not) disputed. The question of jurisdiction was decided as follows:
Breach of Contract, personal injury, etc.
The following stipulations and statements were submitted, ordered filed, and made a part of this order:
(a) A written stipulation or statement of the uncontested facts;
(b) Written stipulations or statements setting forth the qualifications of the expert witnesses to be called by each party;
(c) A written list or lists of the potential witnesses to be called by each party;
(d) A written statement of the contested issues of fact and of law filed on behalf of the plaintiff(s);
(e) A written statement of the contested issues of fact and of law filed on behalf of the defendant(s);
(f) Written waivers of claims or defenses which have been abandoned by the parties.
The foregoing were modified at the pretrial conference as follows:
(If none, recite "none")
PLAINTIFF(S) (A)
The following exhibits were offered by the plaintiff(s) received in evidence, and marked as herein indicated:
(Identification number and brief description of each exhibit)
(B)
The following exhibits were offered by the plaintiff(s) and marked for identification. There was reserved to the defendant(s) the right to object to their receipt in evidence on the grounds stated:
(Identification number and brief description of each exhibit. State briefly ground of objection, e. g., competency, relevancy, materiality).
DEFENDANT(S) (A)
The following exhibits were offered by the defendant(s), received in evidence, and marked as herein indicated:
(Identification number and brief description of each exhibit)
(B)
The following exhibits were offered by the defendant(s) and marked for identification. There was reserved to the plaintiff(s) the right to object to their receipt in evidence on the grounds stated:
(Identification number and brief description of each exhibit. State briefly ground of objection, e. g., competency, relevancy, materiality).
The following additional action was taken:
(Amendments to pleadings, agreements of the parties, disposition of motions, etc., if necessary. If no such action was taken, recite "None").
LIMITATIONS AND RESERVATIONS (A)
The plaintiff(s) is limited to _____ expert witnesses, whose names have been disclosed to the defendant(s). The defendant(s) is limited to _____ expert witnesses, whose names have been disclosed to the plaintiff(s). There is reserved to each of the parties the right, however, to offer rebuttal testimony of other expert witnesses if necessary.(B)
There is reserved to each of the parties the right to further supplement the list of witnesses upon application to the Court, and for good cause shown.
(C)
There is reserved to each of the parties the right to call such rebuttal witnesses as may be necessary, without prior notice thereof to the other party.(D)
The probable length of trial is _____ days. The case will be listed on the trial calendar, to be tried when reached.
IT IS ORDERED that this pretrial order may be modified at the trial of the action, or prior thereto, to prevent manifest injustice. Such modification may be made either on application of counsel for the parties or on motion of the Court;
IT IS FURTHER ORDERED that requests for instructions shall be submitted to the trial court at the commencement of the trial, but there is reserved to counsel for the respective parties the right to submit supplemental requests for instructions during the course of the trial or at the conclusion of the evidence on matters that cannot reasonably be anticipated.
______________________________ Judge Date: APPROVED AS TO FORM AND SUBSTANCE. ________________________________ Attorney for Plaintiff(s) ________________________________ Attorney for Defendant(s) NOTE: Where a third-party defendant is joined pursuant to Rule 14(a) of the Federal Rules of Civil Procedure the pretrial order may be suitably modified: the initial page may be modified to reflect the joinder.*
APPENDIX 5 NOTICE OF PRETRIAL CONFERENCE AND ORDER EXPEDITING TRIAL, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA
UNITED STATES DISTRICT COURT Southern District of Indiana ) ) CIVIL NO. ____________________ ) ) NOTICE OF PRE-TRIAL CON- ) FERENCE AND ORDER EXPE- ) DITING TRIAL The above case is hereby assigned for pre-trial conference pursuant to Rule 16, F.R.C.P., at Room _____, United States Courthouse, ____________________, Indiana, on _______________, 196 ___, at __________ o'clock ___M.The parties through counsel are ORDERED to do each of the following things, where applicable, prior to such date, unless the time fixed be extended for good cause shown by affidavit:
(1) Meet with each other in order to exchange lists containing the names and addresses of all witnesses expected to be relied upon at trial, other than witnesses intended to be used solely for the purpose of impeachment or rebuttal, within __________ days from the date of receipt hereof. The names and addresses of witnesses discovered subsequent to such exchange of lists shall be furnished to opposing counsel forthwith upon discovery.
(2) Complete all discovery, including physical examinations.
(3) Display to each other all items intended to be offered as exhibits, and all items supporting claims for special damages, whether admissible as exhibits or not (i. e., copies of income tax returns, repair bills, etc.).
(4) Enter into a written stipulation, stipulating to the fullest possible extent the issues, undisputed facts, authenticity and admissibility of exhibits, and any and all other matters which will expedite the trial of the cause by reducing formal proof. SUCH WRITTEN STIPULATION WILL BE PRESENTED TO THE COURT AT TIME OF THE CONFERENCE. Failure to present such a stipulation will be construed to indicate that counsel have not met in compliance with this direction, unless otherwise explained to the Court's satisfaction.
(5) Make a good faith effort to settle the case.
Each party should be represented at the conference by the attorney who expects to try the case. Pending motions, if not ruled upon sooner, will be disposed of at the conference.
ALL OF WHICH IS CONSIDERED AND ORDERED This __________ day of __________, 196_.
___________________________________ United States District JudgeAPPENDIX 6 PRETRIAL ORDER, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION Plaintiff(s) ) No. ____________________ ) ) v. ) (Form of) ) ) Defendant(s) ) PRE-TRIAL ORDER Pre-trial conference before ____________________, United States District Judge, onAppearances for plaintiff(s):
Appearances for defendant(s):
1. Jurisdiction was conceded by counsel and found by the Court to be present. (If otherwise, strike out foregoing).
2. In general, the plaintiff(s) claim(s):
3. In general, the defendant(s) claim(s):
4. The following facts are established by admissions in the pleadings or by stipulations of counsel at the pre-trial conference:
5. The contested issues of fact are:
6. The contested issues of law, in addition to those implicit in the foregoing issues of fact, are: (Or) There were no special issues of law reserved other than such as are implicit in the foregoing issues of fact.
7. There were received in evidence:
(a) Plaintiff's exhibits:
(b) Defendant's exhibits:
(c) Except as otherwise indicated, the authenticity of received exhibits has been stipulated but they have been received subject to objections, if any, by the opposing party at the trial as to their relevancy and materiality. If other exhibits are to be offered and their necessity reasonably can be anticipated, they will be submitted to opposing counsel at least ten days prior to the trial.
8. Witnesses: (Indicate which will be called in the absence of reasonable notice to opposing counsel to the contrary, and which may be called as a possibility only).
(a) Plaintiff's witnesses:
(b) Defendant's witnesses:
(c) In the event there are other witnesses to be called at the trial, their names and addresses and the general subject matter of their testimony will be reported to opposing counsel at least ten days prior to trial. This restriction shall not apply to rebuttal witnesses, the necessity of whose testimony reasonably cannot be anticipated before the time of trial.
9. If the case is to be tried to a jury, it is directed that requests for instructions be submitted to the Court at the commencement of the case, subject to the right of counsel to supplement such requests during the course of the trial on matters that cannot reasonably be anticipated.
10. The following additional matters to aid in the disposition of the action were determined:
11. This pre-trial order has been formulated after conference at which counsel for the respective parties have appeared. Reasonable opportunity has been afforded counsel for corrections or additions prior to signing by the Court. Hereafter, this order will control the course of the trial and may not be amended except by consent of the parties and the Court or by order of the Court to prevent manifest injustice. The pleadings will be deemed merged herein. In the event of ambiguity in any provision of this order, reference may be made to the record of this conference to the extent reported by stenographic notes, and to the pleadings.
12. Possibility of settlement of this case was considered __________________.
13. The probable length of the trial of this case is _____ days. The case was set down for trial (with) (without) a jury on __________ at _____ o'clock ___m. (Or) No definite setting was made, but it is estimated that the case will be reached for trial about ____________________.
Dated this __________ day of __________, 19__.
______________________________________________ United States District Judge (Use alternate forms below depending upon whether counsel jointly approved this completed order at the pre-trial conference or the proposed order was completed thereafter and mailed to counsel). APPROVED: Counsel for Plaintiff(s) Counsel for Defendant(s) A copy of the proposed pre-trial order was sent by mail to counsel of record on _______________ with notice that it would be signed and filed at the expiration of three days after service if no objections or suggestions were received.No objections or suggestions have been received. (Or) Suggestions have been received and approved by the Court and incorporated herein.
Dated this _______________ day of _______________, 19__.
____________________________ Judge's Secretary