Concept
Pretrial Orders
Pretrial conference and order
Pretrial Orders
A pretrial conference can simplify the issues, eliminate frivolous claims or defenses, and secure stipulations about facts and documents.1 Unless someone writes those results down, they survive only in the memories of the people who attended an informal meeting, and memories differ. Rule 16(d) supplies the writing. After any conference under the rule, the court should issue an order reciting the action taken, and “[t]his order controls the course of the action unless the court modifies it.”2
The two sentences of Rule 16(d) do separate work. The first creates the record, so that each lawyer, and any judge who later picks up the file, can read what was decided instead of recalling it. The second gives the record its force. An order that controls the action becomes the measure for every later step, and a party who disobeys it risks sanctions under Rule 16(f)(1)(C), a ground this chapter takes up later.3
Three questions follow from those sentences. What does the order contain, and who writes it? What does it mean for the order to control, especially against the pleadings that came before it? And when may a final order be changed? The third question has a standard of its own, manifest injustice, which differs from the good-cause test for changing a schedule under Rule 16(b)(4).4 A later section of this chapter sets the two side by side.
Contents and Preparation
Rule 16(d) tells the court to “issue an order reciting the action taken.”5 The phrase describes a written record of what the conference produced: a ruling by the judge, an agreement among counsel, or a direction about how the case will proceed. Secondary authority reports that the federal rule and most of its state counterparts require the order, although some state pretrial regulations do not.6 Either way, the order is the document that a later reader, including a judge who never attended the conference, consults to learn what was decided.
A typical order does four things:
- It recites the rulings the judge made and the matters counsel agreed on at the conference.7
- It incorporates all admissions and stipulations of the parties.8
- It lists the issues remaining for trial.9
- It notes any requirements for filing statements or lists of evidence and witnesses.10
Each item writes down a product of the conference. The list of remaining issues records what formulating and simplifying the issues accomplished, and the incorporated stipulations record what the effort to obtain admissions about facts and documents accomplished.11 Writing them down matters because an agreement held only in memory can be remembered two ways, and a fact both sides conceded can drift back into dispute on the morning of trial. A stipulation in the order needs no proof. The issue list marks the edge of the trial, since the issues it names are the issues the parties will try. The witness and exhibit requirements put each side’s intended proof on the record before trial begins.
The conference typically comes after discovery, and that timing is what makes the order useful. By then counsel, talking informally with the judge, can agree on the issues actually in dispute and plan the trial around the evidence and witnesses they know they will offer.12 The order records what they agreed.
The order also carries the conference’s work forward to trial. It preserves what the conference accomplished and spares the parties from repeating it there, and it matters most when the judge who held the conference will not try the case.13 Courts differ on whether the pretrial judge should also try the case. When the judges differ, the trial judge lacks the expertise the pretrial judge gained, and the pretrial judge has less incentive to become fully familiar with the case.14 A judge new to the case then relies on the order to show which facts are agreed, which issues remain, and which witnesses to expect.
Among the matters a court may address at a conference, Rule 16(c)(2)(J) includes “determining the form and content of the pretrial order.”15 A judge can settle the order’s design while all counsel are present: what it must contain, whether the lawyers must file witness and exhibit lists, and who will draft it.
The method of preparing the order is within the court’s discretion. Frequently the court requires all counsel to draft a proposed order and present it for approval, and if counsel cannot agree, the court formulates its own.16 Counsel know best what they agreed to, so they hold the first pen, and the court’s power to write its own order means a dispute over wording cannot leave the case without one. One district’s standing order shows the method fixed in advance. Immediately after the final conference, an attorney for the plaintiff prepares an order reflecting the action taken and the agreements made, unless the lawyers agree otherwise at the conference. Counsel for every other party approve it by signing, and the court enters it on submission, which should come within two weeks of the conference. The case is then added to the trial calendar.17 Another judge may assign the drafting differently.
Now change the facts. The plaintiff’s lawyer insists that a misrepresentation theory remains for trial, and the defendant’s lawyer answers that the plaintiff abandoned it at the conference.
The two scenes differ in who writes the text and agree in legal effect. A draft prepared by counsel remains a proposal until the court acts on it, because Rule 16(d) speaks of the court issuing the order and the standing order above has the court enter the approved draft.18 An exam answer that treats counsel’s signed draft as binding before the judge has entered it skips that step.
The final pretrial order carries the heaviest consequences, because it comes last. After the final pretrial conference, the judge issues an order that resolves issues of trial procedure and sets the stage for presenting the case to the jury.19 The trial will follow whatever that order records, so a lawyer must read a proposed order closely before signing it, a point the next subsection develops.
Controlling Effect
The last sentence of Rule 16(d) gives every pretrial order its force: the order “controls the course of the action unless the court modifies it.”21 The sentence follows any conference, so a scheduling order, a mid-case management order, and the final pretrial order each control what they cover until the judge changes them. Control means that the written order marks the boundaries of what happens next. The lawyers’ recollections of the meeting cannot move those boundaries, and neither can pleadings filed months earlier.
The final order has a further protection. Rule 16(e) allows the court to modify the order issued after a final pretrial conference “only to prevent manifest injustice.”22 The next subsection explains how a party meets that standard, and the point here is its effect while the order stands. A party who wants to change a pretrial order carries a heavier burden than a party who wants to amend a pleading, because the two documents do different jobs.23 The pleadings open the case, and the order shapes the trial, so courts hold the order in place more firmly.
The firmness rests on reliance. The pleadings are the first device for giving notice of the issues, and discovery uncovers the evidence, but the final pretrial order takes the last pretrial cut at the issues, claims, and defenses and often identifies the witnesses and exhibits.24 By the final conference discovery is ordinarily complete, and counsel know what evidence and witnesses they will offer.25 A party can therefore treat the order as the game plan for trial: which witnesses to prepare, which exhibits to assemble, which positions the other side has dropped. If matter outside the order could enter on request, the opponent who planned around the order would absorb the surprise, and the party who ignored the order’s limits would profit from ignoring them. Enforcing the order protects the purpose of the final conference, an economical and efficient trial “without chance or surprise.”26
The same reliance explains why the final order supersedes the pleadings.27 A complaint and an answer are drafted early, and they may contain claims or defenses that the parties drop once discovery shows what the evidence will support. The order is the last statement of what remains, so the issues and defenses of the lawsuit are defined by its terms.28 The effect runs both ways. A claim pleaded at length but missing from the order has left the case, and a defense listed in the order is tried even if the answer treated it thinly. A student who assumes the pleadings still define the trial after a final order has issued will miss both results.
Rule 16(e) says nothing about an attempt to offer a claim, defense, witness, or exhibit that the final order omits, so an answer that attributes exclusion to the rule’s text misdescribes it. The exclusionary effect is an inference from two provisions read together. Rule 16(d) says the order controls unless the court modifies it, and Rule 16(e) permits modification of a final order only to prevent manifest injustice. Matter the order omits can therefore be kept out of trial unless the court modifies the order.29 Courts describe the result as waiver, and witnesses, exhibits, claims, or defenses omitted from a final pretrial order will typically be excluded from trial.30 “Typically” is accurate because the omitting party may move to modify the order, and the showing that motion requires is the subject of the next subsection.
Omissions have different causes, and the differences explain why the rule leaves so little room for excuse. Some are simple oversight. A lawyer whose claim or defense is failing at trial may try to substitute an omitted one that the trial record might support. The most serious cause is deliberate ambush: a witness left off the list on purpose, so that the opponent never deposes that witness, with the ambusher gambling that the court will allow the testimony to avoid manifest injustice.31 A court that excused omissions on request would treat the careless and the calculating alike, and it would reward the calculating, because an ambush pays only if the order gives way.
Disobeying a pretrial order can cost a party in several ways. The court may strike a defense, exclude evidence, or, in an extreme case, dismiss the action.32 The first two follow directly from the order’s controlling effect, while dismissal is reserved for extreme cases, a limit that a later section develops. Failing to obey a scheduling or other pretrial order is also a listed ground for sanctions under Rule 16(f)(1)(C).33 The trial judge has a further reason to hold the line, since instructions given or evidence introduced outside the scope of the order may produce a mistrial or a reopened case after appeal.34
Because the order controls so firmly, the time to dispute its terms is before the evidence begins. Objections to a pretrial order are waived if they are not raised at the outset of trial, and on appeal they lead to reversal only if the order was an abuse of the trial court’s discretion.35 A lawyer who watches the trial proceed on the order’s terms and complains only after an adverse verdict has let the opponent and the court rely on a plan that could have been challenged while the challenge still mattered.
Modifying a Final Order
Rule 16(e) ends with the sentence that governs any request to change the trial plan after the final conference: the court “may modify the order issued after a final pretrial conference only to prevent manifest injustice.”37 The preceding subsection explained that a claim, defense, witness, or exhibit left out of that order will ordinarily be excluded. A party who wants omitted matter admitted therefore has one route, a motion to modify, and this sentence supplies the test. The word only makes the sentence a limit on the court’s power, and manifest injustice is a demanding threshold, so the question is never whether the movant would simply like to add something.
The movant bears the burden of proving the manifest injustice that would otherwise occur.38 That burden is heavier than the one for amending a pleading, and some courts require a substantial showing of cause and require any possibility of prejudice to the opposing party to be overcome.39 The difference follows from the jobs the documents do. The final order takes the last pretrial cut at the case, so a party may ordinarily rely on it.40 That reliance is why the inquiry centers on the opposing party: the test focuses primarily on prejudice and surprise to that party, and how much prejudice there is depends on whether time remains to meet the new matter.41 The standard is still not absolute. Because the order defines the issues and defenses, “total inflexibility is undesirable.”42
Davey v. Lockheed Martin Corp., a Tenth Circuit decision, shows the standard at its hardest edge. Susan Davey sued her former employer, Lockheed Martin, for discrimination and retaliation. On the Friday before a Monday trial, Lockheed asked to add a defense to punitive damages, that it had made a good-faith effort to comply with Title VII, and it rested the defense on a recent Supreme Court decision.43 The trial court refused the defense as “fundamentally unfair to the plaintiff,” because Davey had had no opportunity to conduct discovery on it.44
The ruling rested on reliance. Davey had banked on the final order in preparing her case, and a brand new, fact-intensive defense added at the last minute, with no prior opportunity for discovery, would upset that reliance.45 Lockheed went to trial without the defense, so the order that protected Davey’s preparation cost Lockheed an argument it considered important enough to carry to the court of appeals.
On review of a denial like this one, the Tenth Circuit asked four questions drawn from an earlier case: whether the opposing party faced prejudice or surprise, whether that party could cure any prejudice, whether including the new issue would disrupt the trial, and whether the party seeking modification acted in bad faith.46 The treatise’s general statement of the doctrine adds the movant’s own side of the ledger. The proponent of omitted matter must show that exclusion would substantially prejudice it, that any prejudice to the opponent can be cured or alleviated, that modification will not disrupt the court calendar, and that it acted in good faith.47 Courts weigh these considerations together and do not treat any single one as an element, so the motion is best analyzed as a fixed sequence of questions put to the same facts.
Timing does the most work in the second step, because it determines which cures exist. A motion to add a defense several months before trial may allow the court to reopen discovery, so that the opponent can depose the new witness or collect evidence to meet the defense. A final pretrial order, however, comes as close to the start of trial as is reasonable, and the only cure is sometimes a continuance.48 A continuance may not repair what the opponent has lost, which is the preparation it built on the order.
Davey runs a similar defense through the same sequence on the last possible day. The prejudice was substantial, because the defense turned on facts about which Davey had no discovery. The ability to cure was poor, because with trial days away the only realistic cure was a continuance, and a continuance would not give back the preparation Davey had built on the order. On the fourth question Lockheed fares better, since it rested the defense on a recent Supreme Court decision, which looks like a response to new law and not an ambush, although it asked only days before trial. The factors point in different directions, which is why a motion like Lockheed’s is decided by weighing and no mechanical rule settles it.
One question remains: could the court have met Davey’s concern without excluding the defense? The general statement of the doctrine asks whether prejudice can be cured or alleviated, so the search for a cure is part of the standard.49 A continuance is one candidate, and limited discovery on the defense before the jury hears it is another. Whether either would have worked on a three-day timeline is exactly what the weighing decides.
An exam question about a late motion to add a defense, witness, or exhibit to a final pretrial order tests these steps in sequence, and the usual wrong answer applies the liberal policy for amending pleadings. The good-cause test for changing a schedule is a different standard, aimed at the deadlines in a scheduling order.50 A later section sets the standards side by side.