April 12, 2019 view from the bench

Final Pretrial Conference: Are You Ready?

Improve the "quality of the trial through more thorough preparation"

By Hon. Karen L. Stevenson

I recently finished a civil jury trial. The lawyers on both sides did a fine job. The jurors were attentive, and the verdict reflected thoughtful consideration of the evidence and careful adherence to the jury instructions. In a word, it went smoothly.

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This was not a coincidence. It was the result of a thorough final pretrial conference with the parties. One of the express purposes for pretrial conferences listed in Rule 16(a)(4) of the Federal Rules of Civil Procedure is “improving the quality of the trial through more thorough preparation.” Here are some tips on preparing for your final pretrial conference.

Before the PreTrial Conference

In federal court, your trial judge will issue a trial order outlining deadlines for filing trial-related documents. These will include motions in limine, witness lists, exhibit lists, proposed agreed jury instructions, disputed jury instructions, memoranda of fact and law, special verdict forms, and a brief agreed statement of the case to be read to the prospective jurors during jury selection. Take great care in preparing these documents. They are key in framing what’s relevant and what’s not.

The parties will also submit a proposed final pretrial conference order. Under Rule 16, the pretrial conference order should discuss the estimated time for trial, whether it will be a jury or bench trial, any stipulated facts, the remaining claims and defenses to be tried, any unresolved discovery issues, the witnesses expected to testify (and how long), and whether any party seeks bifurcation of issues for trial. Be sure to review the operative pleading and rulings on any motions for summary judgment so that your final pretrial conference order accurately lays out the remaining claims and defenses.

If disputes remain about any of those issues, note that in the final pretrial conference order so that your judge can address it at the conference. To pull all this together, you must have discussions with opposing counsel. Although trial is the ultimate adversarial event, preparing for the final trial conference requires robust professional collaboration among the lawyers.

Final Pretrial Conference: Have a Checklist

Even after filing the trial documents, it is helpful to make a checklist of topics to discuss with the judge during the conference itself.

These are all critical issues that may not be addressed in your final written trial filings. Do not wait until the first day of trial to find out how your judge wants to proceed.

Finally, alert the judge to any changes that may be needed in the proposed pretrial conference order. Otherwise, at the end of the conference, the judge will likely enter exactly what the parties submitted as the final order governing the trial.

I typically make my own checklist for the final pretrial conference. But don’t rely on the judge’s checklist. Make your own and refer to it during the conference to make sure everything you need to know gets discussed.

Don’t “Hide the Ball”: Alert the Court to Potential Problems

Judges don’t like surprises—especially in the middle of trial. If there may be problems with witness availability or needing to take a witness out of order, the final pretrial conference is the time to alert the judge. Raise it now, not on the morning your witness is supposed to testify! Will a witness need an interpreter or special accommodations for physical disabilities? Raise these needs at the conference.

Also clarify whether witnesses who have not testified will be excluded from the courtroom until they are excused. Will you be using any graphics or digital presentation as part of your opening? Let the court know what you are planning. Show it to opposing counsel so they can object if need be, and the judge can rule on any objections in advance.

Of course, emergencies happen. But an emergency is not the same thing as knowing your expert is not going to be available as scheduled and asking the court at the last minute to suspend the proceedings for a half-day until your witness arrives. Not a good look—to the judge or the jury. The judge will likely ask the attorneys to provide their cell phone numbers so the court can reach them. If the court does not raise it, ask for contact information for the courtroom deputy or bailiff so that you have a way to reach the court if something untoward happens.

Tackling these logistical issues at the final pretrial conference will mean fewer sidebars or recesses where the jury must wait in the jury room while the lawyers and the judge hash out the issue before testimony can resume. Judges are very concerned with respecting the jurors’ time and do not look favorably on avoidable delays during the trial.

Technology: Plan Ahead

Another critical issue to discuss at your final pretrial conference is courtroom technology. What is available? Do you know how to operate it? Do you need to bring any of your own equipment? Do you need someone else at the counsel table to help you with your technology? Let the judge know. If you are using any digital displays of evidence—test, test, and retest your laptop or presentation platform to make sure it is going to operate the way you want it to when you are in front of the jury. Nothing trips up trial lawyers like uncooperative or unfamiliar technology. Videos that don’t play. Exhibits that don’t display. Zoom features that don’t work. In my last trial, one attorney was displaying an exhibit for the witness and her computer froze. For nearly five minutes, the jury was staring at her screensaver: a very cute, but totally irrelevant, picture of her toddler son.

In our district, all courtrooms have LED screens for the jurors and witnesses to view exhibits. We also have information technology professionals who will train lawyers to use the courtroom equipment. This is time well spent.

The final pretrial conference is a critical opportunity for the judge and the lawyers to set the framework for the trial. Careful, thorough preparation for the conference will ensure that your trial goes smoothly.

Your pretrial conference checklist should include:

  • Voir dire procedures—how will the judge conduct jury selection? Will the court do all the questioning? Will the attorneys be allowed to ask questions? If so, how much time will each side have? Will the scope of attorney voir dire be limited in any way, for example, to questions relating to bias? Can the attorneys submit proposed voir dire questions for the court’s consideration? How many jurors will be empaneled? What will be the seating arrangements in the courtroom? How will the court handle “for cause” excusals? How many peremptories will each side have?
  • What will be trial hours each day?
  • Will the parties have a set amount of time to put on their case-in-chief?
  • How much time for opening statements and closing argument?
  • How will the court resolve disputed jury instructions?
  • When can exhibits be published to the jury?
  • Any changes to the parties’ proposed special verdict form?

 

Hon. Karen L. Stevenson is an associate editor for Litigation News.

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Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).