The Final Pretrial Conference

The Final Pretrial Conference

Rule 16(e) lets the court hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence.¹ Most of the pretrial tools in this chapter point toward discovery. Amendments in 2006 and 2015, for instance, emphasized electronically stored information, agreements about privilege and work-product protection, and the handling of discovery disputes.² The final conference turns the court's attention from discovery to the trial itself.

Most cases survive dismissal and summary judgment, and those not settled during discovery continue toward a trial on the merits. As discovery nears completion, the court will usually hold a conference to resolve pending motions, address evidentiary issues, encourage stipulations on undisputed facts, determine the issues and witnesses for trial, explore settlement, and set a final schedule.³ The judge may take up any matter relevant to planning the trial: the issues in dispute, the exhibits, challenges to the admissibility of evidence, the witnesses who will testify, the possibility of settlement, pending motions, and the order in which evidence will be presented.⁴

Rule 16(e) uses two verbs, and the difference between them is the first thing to learn. The court may hold a final conference, so no case is required to have one. A conference that is held must be held as close to the start of trial as is reasonable, and it must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party.⁵ The rule leaves to the judge the question whether a meeting is worth holding, since a simple case may not need one. It fixes timing and attendance in mandatory terms because those two features decide whether the meeting can produce a plan the court can rely on.

The timing command rests on what lawyers know at each stage of a case. A court is not limited to one pretrial conference, and in highly complex litigation several may be appropriate. The first of a series may precede discovery, where it helps frame the issues and keeps the cost of discovery in check. A conference held after discovery is essentially complete, shortly before trial, does different work, and it is logical for a reason that explains the rule: each side is by then thoroughly familiar with the strengths and weaknesses of its case and knows which issues and facts it will contest and which it will concede.⁶ A trial plan needs those decisions, and a conference held earlier asks the lawyers to guess. The rule measures how close to trial the conference must fall by reasonableness, not by a number of days, and the court may also set the dates for further conferences and for trial.⁷

The attendance sentence is the part of the rule most likely to be tested, usually by sending the wrong lawyer to the meeting. For each party, at least one attorney who will conduct the trial must attend, and so must any unrepresented party.⁸ Many courts ask of pretrial conferences generally either the attorneys who will present the case at trial or at least one who knows the case and holds full power to make admissions and stipulations.⁹ Rule 16(e) uses the stricter measure: the trial lawyer, and not merely a well-informed substitute. The final conference produces commitments about the trial itself, such as which witnesses will be called, which exhibits offered, and which objections pressed. The lawyer who will carry those commitments into the courtroom knows which of them are real and can promise performance on the spot. A substitute who must telephone the trial lawyer before answering each question turns the meeting into a rehearsal for a later one.

The words at least one let a firm send a team, so long as the lawyer who will conduct the trial is among them. The words for each party mean that every side needs its own trial lawyer present, so the plaintiff's attendance does not cover a defendant who has retained separate counsel. A party with no lawyer appears personally, because no one else can speak for that party and a plan for presenting the case cannot be formed without the person who will present it. Nothing in the sentence requires a represented party to attend. A judge who wants a client present, or someone with settlement authority, as some courts require,¹⁰ must look to the settlement powers treated earlier in this chapter, because Rule 16(e) does not supply them. An order that sets the conference and directs counsel to appear is a pretrial order, so a lawyer who disregards it risks sanctions for failing to obey a scheduling or other pretrial order.¹¹ The sanctions that courts have imposed for nonattendance range from costs to default or dismissal for failure to prosecute, and the sanctions sections below return to them.¹²

Preparation is what lets a conference held this close to trial finish its work in one sitting. A court may require pre-conference preparation, usually including a special pretrial-conference memorandum.¹³ Rule 16(c)(2) also lets the court act on identifying witnesses and documents and on scheduling the filing and exchange of any pretrial briefs.¹⁴ A lawyer who commits to a witness list has ordinarily done the informal trial preparation, such as interviewing the potential witnesses who have firsthand knowledge of the facts, that makes the commitment possible.¹⁵ With the lists in hand, the conference can be used to obtain admissions and stipulations about facts and documents, which avoids unnecessary proof, and to rule in advance on the admissibility of evidence.¹⁶ Those two tools are how the plan to facilitate the admission of evidence is carried out.

The conference produces a written order. One standing order shows the mechanics. Immediately after the final conference, an attorney for a plaintiff prepares an order that reflects the action taken and the agreements made, unless the conference assigns that task otherwise. Counsel for all other parties approve the order by signature, and the court enters it on submission, which should come within two weeks of the conference unless otherwise agreed.¹⁷ The judge's final pretrial order resolves questions of trial procedure and sets the stage for presenting the case to the jury.¹⁸ That order measures the dimensions of the lawsuit, at trial and on appeal, and the court may modify it only to prevent manifest injustice, a burden that rests on the party seeking the change.¹⁹ The sections that follow take up the order's contents, its controlling effect, and that modification standard.