Appellate Judges

Benchbook for U.S. District Court Judges (Civil Section 6.01)

Before issuing a scheduling order, most judges find it advisable to hold a case-management conference to learn more about the case.

LIT COMMENTARY

What’s interesting here is the value of the scheduling conference – which holds great weight according to the FJC  – but not so in the Burke’s experiences in S.D. Texas District Court. The Burkes attended their hearing, where they were present for 2 cases at this hearing, Burke v Ocwen and Burke v Hopkins, which took the court a grand total of 3 minutes and where the clerk advised that Magistrate Judge Peter Bray was just scheduling the docket dates and setting the trial date – nothing else.

This, after the Burkes traveled from Kingwood and opposing counsel from Austin, Texas. The Burkes were fully prepared to present, if necessary, and they had folders of information ready for this conference and copies for opposing counsel and the court. However, the clerk refused to take them as unnecessary based on what he’d intimated.

Y’all see, the fact is that federal courts hope that litigants, especially pro se are ‘no shows’ to this very important conference. If you fail to show, your case is dismissed and it’s very difficult to get it back on the docket if you want to fight the dismissal order. It’s a ruse and a known scheme by the courts to quickly end your civil case. Don’t fall prey to their traps. Make sure you attend the conference.

Benchbook for U.S. District Court Judges

SIXTH EDITION

Federal Judicial Center
March 2013

The Federal Judicial Center produced this Benchbook for U.S. District Court Judges in furtherance of its mission to develop and conduct education programs for the judicial branch. This Benchbook is not a statement of official Federal Judicial Center policy. Rather, it was prepared by, and it represents the considered views of, the Center’s Benchbook Committee, a group of experienced district judges appointed by the Chief Justice of the United States in his capacity as chair of the Center’s Board. The committee was assisted by Federal Judicial Center staff.

6.01       Civil case management

Fed. R. Civ. P. 16 and 26

  1. The judge’s role
  2. Initial case management (pre-Rule 16 conference)
  3. Rule 16 case-management conferences and orders
  4. Ongoing case management
  5. Final pretrial conference
  6. Conclusion

Introduction

This section is designed to provide guidance for managing both simple and complex civil cases. It includes actions that are required by rule along with factors to consider, alternative methods, and recommendations that experienced judges have found to be helpful. Not all of the recommendations given will be appropriate for every case, and judges should tailor the advice to the case at hand. Also, a district’s local rules may recommend or require a different practice or procedure, or even use different terminology.

Magistrate judges routinely handle many of the pretrial functions referred to below (see infra section II), and the term “judge” is meant to include both district and magistrate judges.

I.     The judge’s role

The Civil Rules contemplate that the judge will be an active case manager. The rules apply across case types and sizes, but different cases have different pretrial needs. Some cases may require extensive discovery and motions practice, while others may involve little or no discovery or pretrial motions. The Civil Rules provide a flexible template to be tailored to the needs of each case.

The judge and the parties share case-management responsibility. The parties exercise first-level control and are the principal managers of their cases, but they do so under a schedule and other limits established by the judge. Many parties will not manage, or will manage in ways that are disproportionate to the needs of the case, or will otherwise frustrate the just, speedy, and inexpensive determination of the action. Judges may meet their own responsibility for the efficient resolution of cases both by guiding the parties to sound self-management and by intervening to impose effective management when necessary.

Active judicial case management is an essential part of the civil pretrial process. No party has the right to impose disproportionate or unnecessary costs on the court or the other side. Many parties and lawyers want and welcome active judicial case management, viewing it as key to controlling unnecessary cost and delay.

 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)                                189

Section 6.01: Civil case management

Active case management does involve additional judge time at the start of the case, but it pays valuable dividends. It ensures that the case will proceed under an efficient but reasonable schedule, that time and expense will not be wasted on unnecessary discovery or motions practice, and that court and lawyer time will be devoted to the issues most important to the resolution of the case. When lawyers know the judge will be managing them, they are more likely to engage in sound self-management. Early attention to case management may also identify potential problems before they arise or ad- dress them before they worsen. Active case management promotes justice by focusing the parties and the court on what is truly in dispute and by reducing undue cost and delay.

There are three stages of pretrial case management:

  1. activities before the Rule 16 conference and/or order;
  2. holding a Rule 16 case-management conference and issuing a case-management order; and
  3. ongoing case

II.   Initial case management (pre-Rule 16 conference)

The Rule 16 case-management conference between the lawyers and the judge is the primary opportunity for the judge to assess the pretrial needs of the case in time to craft an appropriately tailored case-management order. The effectiveness of the Rule 16 conference depends in large part on the in- formation the parties provide. Rule 26(f) requires the parties to confer and prepare a discovery planning report to use in the Rule 16 conference with the court. The judge can take steps to promote the parties’ effective use of Rule 26(f).

  1. Rule 26(f) discovery planning conference and report
    1. R. Civ. P. 26(f) requires the parties to confer at least 21 days be- fore the scheduling conference is to be held or a scheduling order is due under Rule 16(b), except in proceedings exempted from the Rule 26(a)(1)(B) initial disclosures or when the court orders otherwise.
    2. The parties must, among other things, consider the nature and basis of their claims, discuss their expected discovery needs, and make a good-faith effort to agree on a proposed discovery plan, which they must submit to the court within 14 days.
    3. The Rule 26(f) conference and report serve two One is to have the parties discuss discovery before engaging in it, to prevent a “shoot first, ask questions later” approach. The second is to generate information for the court to consider at the Rule 16 conference in determining the reasonable pretrial needs of the case.

 

190                          BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Section 6.01: Civil case management

  1. Initial case-management orders (pre-Rule 16 conference)
    1. Too often, the lawyers’ Rule 26(f) conferences are As a result, the reports supply little useful information to the court. To improve the quality of the Rule 26(f) process, some judges issue initial case-management orders that spell out the topics the judge expects the parties to discuss at their Rule 26(f) conferences and ad- dress in their Rule 26(f) report. The order can also make clear that the judge will be asking about these topics at the Rule 16 case- management conference, creating an incentive for the lawyers to carry out their Rule 26(f) obligations responsibly.
    2. Consider issuing an order (or developing case-management guidelines) that structures the parties’ initial planning activities in order to facilitate an effective and efficient case-management conference with you The order or guidelines can be a standardized form issued by your staff when the Rule 16 case-management conference is scheduled.
    3. Consider reminding the parties that Rule 26(f) requires them to dis- cuss issues relating to discovery of electronically stored information and advising them that you will ask about such issues at the Rule 16(b) case-management
    4. Consider reminding the parties that Rule 26(b) and (g) require their discovery activities to be proportional to the needs of the case and that you will ask about proportionality at the Rule 16(b) case-management
  2. Supplementing the Rule 26(f) agenda for the parties
    1. Your order or guidelines can also direct the parties to discuss at their Rule 26(f) conference matters that go beyond those listed in Rule 26(f), and to address those matters in their Rule 26(f) report or in a separate pre-Rule 16 conference A district’s local rules may have specific requirements for the conference.
    2. Possible topics—for discussion or report or both—could be anything that will aid in your assessing and managing the case, including
      • the basis for federal-court subject-matter jurisdiction;
      • a brief description of the facts and issues in the case;
      • the status of any initial settlement discussions or a statement of whether the parties will engage in initial settlement discussions; and
      • any other case-management topics listed in Rule 16(c)(2).
    3. One factor to consider is that supplemental discussions or supple- mental pre-Rule 16 conference reports will increase the parties’ up- front costs and burdens of While some judges effectively

 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)                                191

Section 6.01: Civil case management

use supplemental submissions, other judges prefer to raise these topics at the Rule 16(b) conference if appropriate for the case. Each judge must determine how best to balance the costs and benefits of additional pre-Rule 16 conference requirements in different types of cases.

III.  Rule 16 case-management conferences and orders

Before issuing a scheduling order, most judges find it advisable to hold a case-management conference with the lawyers—and sometimes the parties—to learn more about the case. The exchange with the lawyers, preferably face-to-face but by telephonic conference if circumstances require, is usually much more valuable for the court and the lawyers than just reviewing the parties’ report. The exchange provides the court with the information it needs to develop a scheduling order or case-management order that is tailored to the needs of the case. The Rule 26(f) report, even when well done, is typically no substitute for a live dialogue in which a judge asks questions, probes behind the parties’ representations, and fills in gaps.

A tailored case-management order can address several critical areas:

  1. the issues to be resolved and the best methods for resolving them in a timely and efficient manner;
  2. the scope of discovery, the best methods for the timely and cost- effective exchange of information, and limits on the amount and type of discovery allowed in the case;
  3. procedures the parties must follow in the case, such as procedures for obtaining the court’s assistance in resolving discovery disputes;
  4. whether and when the parties might participate in processes de- signed to facilitate settlement; and
  5. a schedule for the topics addressed
  1. Rule 16(b) minimum requirements
    1. The district judge—or a magistrate judge when authorized by local rule—must issue a basic scheduling order in every civil case unless it is in a category of cases exempted by local
    2. The basic scheduling order must set four deadlines:
      • to join new parties;
      • to amend the pleadings;
      • to complete discovery; and
      • to file
    3. The judge must issue the scheduling order as soon as practicable, but in any event within 120 days after any defendant has been served or 90 days after any defendant has appeared, whichever occurs first.

 

192                          BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

 

Section 6.01: Civil case management

  1. Rule 16(b) case-management orders; case-management conferences
    1. Most judges issue orders that go well beyond the minimum basic deadlines required by Rule 16(b). A Rule 16(b) order that pro- vides extensive case management may be styled as a scheduling or- der; the label used is not controlling.
    2. As noted earlier, most judges hold a Rule 16 conference with the lawyers, either face-to-face or by conference call, to learn about the case in order to issue a scheduling order/case-management order tailored to the case. In some cases, it will be clear in advance that such a conference is not necessary. In some categories of suits, the pretrial needs do not vary by case. In that event, the court can issue a scheduling order based on established practice as informed by the parties’ Rule 26(f) submissions. In general, however, it is better to hold a case-management conference, either in person or by telephone, even if the parties agree on deadlines and no motions are pending. The conference often reveals information and issues not apparent to the parties or the judge in the submissions. That information and those issues are often important in preparing a tailored case-management order.
    3. The length of the conference will depend on the complexity of the case and the scope of the matters to be addressed. In many cases, 20 to 30 minutes should be adequate to explore the matters discussed below. More complicated cases will probably require more time. Cases that might seem simple and organized often turn out to have unforeseen complications and call for a longer conference to get them on a productive and efficient path. Allotting enough time for every conference maximizes the benefits of early case management.
    4. Judge The judge who is conducting the pretrial activities should lead the conference.
    5. Party Consider whether represented parties should be present at the case-management conference. Having the parties present can make it easier to identify the issues and can greatly add to a meaningful discussion of the litigation costs and the importance of limiting pretrial work to what is reasonable and proportional to the case. Note that some districts have a local rule that requires the par- ties to meet and discuss settlement or ADR before the pretrial conference.
  2. Addressing merits issues
    1. Narrowing the The pleadings often fail to clearly identify what claims or defenses—or elements of claims or defenses—are genuinely in dispute. The case-management conference is an ideal time

 

 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)                                193

Section 6.01: Civil case management

to probe the parties’ contentions to determine what issues actually need to be resolved.

  1. Initial Because initial disclosures are required in most cases, it is useful to ask counsel whether initial disclosures have been exchanged and, if not, include that in the scheduling order.
  2. Motions to The case-management conference is an important opportunity to address any pending motions to dismiss and deter- mine whether the plaintiff intends to file an amended complaint that might moot the need to resolve a pending motion. Consider discussing with counsel other ways of limiting dismissal motions and whether it may be better to address the issues by summary judgment than by pleading challenges. For example, if a party wishes to raise a statute of limitations issue, it may be better to address that in a summary judgment motion after some discovery rather than by a motion to dismiss.1
  3. Staging Explore whether there are any threshold issues that should be resolved first. Where appropriate, phase the pretrial proc- ess (including discovery) so that critical or case-dispositive threshold issues are resolved before the parties begin work on other issues.
  4. Consider asking counsel whether they will stipulate to facts that do not appear to be genuinely contested. Such stipulations can streamline the issues to be resolved and can eliminate the need for costly discovery on uncontested issues.
  5. Explore the need for experts. Counsel often say they need experts in cases or on issues but, on examination, it is apparent that experts are neither needed nor appropriate. If experts are needed, deadlines should be included in the case-management order for expert disclosures, reports, and discovery, and for the filing of motions raising Daubert challenges under Rule 702 of the Federal Rules of Evidence if those are expected. Such motions should not be deferred until the final pretrial conference.
  6. Class If the case is styled as a class action, the conference is often the best time to set dates for class certification motions and to establish a process for any certification discovery that may be needed. The conference provides an effective opportunity to explore with counsel the relationship between, and possible overlap of, dis-
  1. Consider establishing a process for the submission of premotion letters or for pre- motion conferences before a party can file a motion to dismiss or for summary judgment. Such motions can be expensive and time-consuming for both the parties and the court. Some judges have found that a premotion letter or conference requirement avoids or limits mo- tions to dismiss or for summary judgment without the need for full briefing, or clarifies and focuses the issues for those motions that do proceed to full briefing.

 

194                          BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Section 6.01: Civil case management

covery on class certification and on the merits, the limits that should be imposed on class-certification discovery, and staging discovery to decide the certification motion before proceeding to other merits discovery.

  1. Addressing discovery issues
    1. Managing Excessive discovery is one of the chief causes of undue cost and delay in the pretrial process. The case-management conference can help ensure that discovery proceeds fairly and efficiently in light of the needs of the case. Although you should ask the parties what discovery they need and how much time they will need to do it, do not rely solely on what the parties say in the Rule 26(f) discovery plan. Even if the parties agree, that does not guarantee that discovery will be proportional or proceed on a timely basis.

Remember that parties are not entitled to all discovery that is rele- vant to the claims and defenses. The judge has a duty to ensure that discovery is proportional to the needs of the case. Under Rule 26(b)(2)(C), the court must limit discovery that would be “unreasonably cumulative or duplicative” or when “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”

  1. When needed, consider these techniques for imposing proportionality limits on discovery:
    • limiting the number of depositions (or their length), interrogatories, document requests, and/or requests for admission;
    • identifying whether discovery should initially focus on particular issues that are most important to resolving the case;
    • phasing discovery so that the parties initially focus on the sources of information that are most readily available and/or most likely to yield key Guide the parties to go after the “low hanging fruit” first;
    • limiting the number of custodians and sources of information to be searched;
    • delaying contention interrogatories until the end of the case, after discovery is substantially completed; and
    • otherwise modifying the type, amount, or timing of discovery to achieve
  2. Evidence Rule 502 non-waiver Consider whether to enter a “non-waiver order” under Federal Rule of Evidence 502(d). This or- der, which does not require party agreement, precludes the assertion of a waiver claim based on production in the litigation. It avoids the

 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)                                195

 

Section 6.01: Civil case management

need to litigate whether an inadvertent production was reasonable. By reducing the risk of waiver, the order removes one reason parties conduct exhaustive and expensive preproduction review. Many par- ties still are not aware of this opportunity for reducing the cost of discovery by reducing privilege review.

  1. Electronic Because electronic discovery is often a source of dispute, excessive costs, and delays, it can be important to ask whether the parties have considered any issues on discovery of electronically stored information (ESI). While the parties have a duty to discuss the discovery of ESI at their Rule 26(f) conference and include it in their Rule 26(f) report, experience shows that many lawyers do not.

If they have not already done so, see if the parties can reach agreement on basic electronic discovery issues, including the following:

  • the form in which ESI will be produced (i.e., native format, PDF, paper, ). The form of production can affect whether the mate- rial produced will include metadata and whether it will be computer searchable;
  • whether to limit discovery of ESI to particular sources or custodians, at least as an initial matter (see the “low hanging fruit” principle above); and
  • whether to seek agreement on search terms or methods before conducting computer searches to identify responsive
  1. Explore whether the parties have discussed the preservation of discoverable information, especially ESI. See if the parties can reach agreement on what will be preserved. If there are disputes, it is important to resolve them quickly to keep the case on track and avoid spoliation issues later. The principles of reasonableness and proportionality that guide discovery generally apply.
  2. Resolving discovery Consider requiring the parties to present discovery disputes informally (e.g., via a telephone conference or a short letter) before allowing the parties to file formal discovery motions and briefs. Many courts have found that they are able to resolve most discovery disputes using these less formal—and considerably less expensive and less time-consuming—methods. These courts do not allow counsel to file motions to compel or for sanctions before get- ting the judge on the phone (with a court reporter or a tape machine) to discuss the issue. Many courts find that they are able to resolve most discovery disputes over the telephone and that simply being available encourages the parties to resolve many disputes on their own.

 

196                          BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

 

Section 6.01: Civil case management

  1. The discovery process is adversarial in the sense that the adversaries make choices about what information to seek and how to seek it. But that does not mean that lawyers cannot cooperate or that they must act in a hostile and contentious manner while conducting discovery. It is helpful to let the parties know that you expect them to be civil, to find ways to streamline the discovery process where possible, and to avoid needless cost and delay.
  1. Addressing settlement or other means of alternative dispute resolution
    1. Most courts will ask about the prospects of settlement and whether it would be useful for the parties to have an early settlement conference before the magistrate judge or another adjunct of the
    2. Some judges set a deadline in the scheduling order by which parties must engage in face-to-face settlement talks (whether assisted by a neutral or not), and require the parties to file a short status report on settlement talks after the This may prompt the parties to address settlement sooner than would otherwise occur. However, judges should be attuned to the parties’ views on settlement discussions. Sometimes counsel are prepared for early settlement discussion. But at other times, counsel will want to hold off discussing settlement until they have learned more about the case.
    3. Consider discussing whether the parties would be interested in pursuing other forms of alternative dispute resolution, such as early neutral evaluation, private mediation, nonbinding arbitration, or a summary jury
  2. Trial date and joint pretrial order
    1. Most courts set a trial date in the scheduling order and try to adhere to Empirical data show that setting a firm trial date and sticking to it when possible is one of the best ways to ensure that the case moves forward without undue cost or delay.
    2. Consider whether a simpler and less costly joint pretrial order would suffice for the For example, for some cases, it is sufficient to have the parties submit exhibit and witness lists, proposed voir dire questions, and proposed jury instructions.

IV. Ongoing case management

Case management does not end when the case-management order is entered. Not all cases will require active ongoing case management, but many will. It is helpful to make clear up front that you stand prepared to re-engage when needed.

  1. Scheduling future conferences
    1. At the initial case-management conference, consider whether to schedule one or more follow-up These may include in-

 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)                                197

 

Section 6.01: Civil case management

terim pretrial conferences to manage discovery and resolve any disputes, schedule deadlines for potential summary judgment motions, or narrow the issues. These may also include a conference at the end of discovery to identify remaining issues, hear oral argument on motions if that would be helpful, and address any problems that presenting proof at trial may raise.

  1. In cases with heavy or contentious discovery, some judges schedule a standing discovery conference at set periods (e.g., once a month). This ensures that time is available to address any Experience shows that the lawyers often call shortly before the regularly scheduled conference date to cancel it, as the impending conference date motivates them to resolve the issues on their own.
  2. In cases with extensive electronic discovery, the judge and the parties often adopt an iterative approach, in which the parties initially limit discovery to specific sources or custodians, deferring until later the decision whether to pursue further. In cases that follow that approach, it is advisable to schedule a follow-up discovery management conference in advance, subject to cancellation if it is not needed.
  3. If you have deferred exploring settlement or other alternative dis- pute resolution activities until the parties have conducted discovery, it may be advisable to schedule a conference after the initial discovery to reassess the prospects of settlement or other resolution activity.
  1. Modifying the litigation schedule
    1. In some cases, it may be necessary to modify the schedule set in the initial case-management Under Rule 16(b)(4), any modification requires an order and a finding of good cause.
    2. Only the judge can modify the case-management The parties cannot extend the schedule on their own, even by agreement. It is common for the parties to seek a modification by stipulation, but the stipulation has no force of its own and should not be adopted automatically because of the need to determine whether there is good cause for the proposed modification.
    3. Modifying the case-management order requires a good-cause show- The dominant factor is whether the existing schedule cannot reasonably be met despite the diligence of the party seeking extension. If that party has not been diligent in meeting the schedule, good cause to extend it may be lacking.
    4. Effective case management requires holding the parties and their lawyers to reasonable Parties and lawyers who disregard reasonable deadlines interfere with the “just, speedy, and inexpen-

 

198                          BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

 

Section 6.01: Civil case management

sive determination of every action and proceeding.” Fed. R. Civ. P. 1. When judges adhere to the schedules they have imposed and en- force the good-cause requirement for modification, cases tend to be resolved more efficiently.

  1. Addressing issues promptly
    1. Addressing disputed issues promptly is the key to capitalizing on early case-management work and keeping the case If the parties contact chambers with an issue, prompt attention—whether by conference call, a quickly scheduled case-management conference, or other means—can help keep the parties and the schedule on track.
    2. The way a dispute or motion is decided will often define or limit the pretrial activities to For example, the way a motion for summary judgment is decided might dramatically narrow the issues in the case and therefore affect the scope of discovery. The way a dis- covery dispute is resolved also affects the cost, burden, and time of discovery. The prompt resolution of motions and disputes that inter- sect with the management of the case can be critical to reducing costs and delays.
    3. Rule 16(f) provides tools for promoting the purposes of Rule 16 and for enforcing the court’s case-management

 

V.   Final pretrial conference

  1. A valuable case-management tool

Rule 16(e) states that a court may hold a final pretrial conference to “formulate a trial plan.” While not mandatory, a final pretrial conference is strongly encouraged. It is the judge’s primary way to ensure that the lawyers and the parties are prepared to try the case and that the trial starts and ends on time, and to avoid surprises. The final pretrial conference allows the judge, with the parties and counsel, to identify the legal issues that still need to be resolved. It also provides an opportunity to identify and address problems that otherwise might disrupt, delay, or unnecessarily complicate the trial.

  1. Scheduling the conference and setting the agenda
    1. Timing and The purpose of the final pretrial conference is to plan the trial. Rule 16(e) provides that it must be held “as close to the start of trial as is reasonable.” Rule 16(e) also addresses who should be in attendance, stating that each party must be represented at the conference by at least one attorney who will conduct the trial, or by the party if unrepresented. Many judges require the attorneys who will take the lead at the trial to be present.
    2. Final pretrial conference For a final pretrial conference to be effective, the lawyers and parties must prepare in advance. To facili-

 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)                                199

 

Section 6.01: Civil case management 

tate that, many judges issue final pretrial conference orders that identify the specific steps the lawyers and parties must complete and the documents they must file before the conference. These steps and documents are designed to make the lawyers focus on what is actually needed to try the case. The final pretrial conference order does not have to be one-size-fits-all. The court can tailor or adapt the order to be sure that the steps the lawyers and parties are required to take are appropriate for the case, address the information needed for the trial, and do not unnecessarily increase the expense and burden of trial preparation.

  1. Requiring the parties to submit materials before the conference

Most judges require the parties to prepare and submit materials in advance of the final pretrial conference, although specific practices vary both by district and by judge. Some districts have local rules, while others leave the matter to each judge. When local rules exist, they typically still allow for tailoring by the judge who will try the case. The two most important things to decide are what matters the judge wants the parties to address and the form the submissions should take.

  1. Matters to be addressed in the preconference The judge may ask the parties to address any matters that will help in planning the trial. The following items illustrate the types of matters judges of- ten ask the parties to address in preconference submissions:
    • Factual Require the parties to identify the factual issues to be resolved at trial and to provide a brief summary of the party’s position on each issue. This requires the parties to think through the trial ahead of time and enables the judge to discuss the nature and length of the trial and resolve issues that may simplify the trial.
    • Legal Require the parties to identify disputed legal issues that must be resolved in connection with the trial. This prepares the judge to address those issues and, if possible, to decide them before trial.
    • Rule 26(a)(3)(A) Rule 26(a)(3)(A) requires the parties to make pretrial disclosures on three topics. The parties must
      • identify their trial witnesses, separately identifying those they expect to present and those they may call if the need arises;
      • designate any witness that will be presented by deposition transcript or videotape; and
      • identify their documents and trial exhibits, separately identifying those they expect to offer and those they may offer if the need

 

200                          BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Section 6.01: Civil case management

Rule 26(a)(3)(B) provides that these disclosures are due 30 days before trial unless the court sets a different due date. Many judges alter the deadline by ordering the parties to make their disclosures as part of the preconference submissions.

  • Marking To ensure that the evidence is ready for trial and to minimize surprises, consider requiring the parties to exchange not only lists of exhibits, but actual copies of exhibits marked for introduction into evidence.
  • Rule 26(a)(3)(B) requires opposing parties to list objections to the use of a deposition under Rule 32(a), as well as any objection—together with the grounds for it—to the admissibility of trial exhibits. With the exception of objections under Federal Rules of Evidence 402 and 403, objections not so made are waived unless excused by the court for good cause.

These objections are due 14 days after the pretrial disclosures are made, unless the court sets a different deadline. Consider including in the final pretrial conference order instructions on how the parties should make any such objections.

  • Motions in Many judges require parties to file and brief motions in limine before the final pretrial conference. The judge has discretion to place page or number limits on the motions in limine that are filed. Resolving motions in limine at the final pretrial conference defines the issues and evidence to be presented at trial.
  • Voir Consider requiring the parties to submit proposed voir dire questions and a joint statement of the case to be read to the jury panel during voir dire.
  • Jury instructions. Consider requiring the parties to submit pro- posed preliminary and final jury
  • Consider requiring the parties to submit proposed verdict forms or jury interrogatories.
  • Findings of fact and conclusions of In a bench trial, consider requiring the parties to submit proposed findings of fact and conclusions of law.

As noted earlier, there is no one-size-fits-all requirement. In cases that are simple or straightforward or in which the stakes are small, an elaborate joint proposed pretrial order may not be needed. In such cases, consider conferring with the lawyers about tailoring the pre-conference submissions, including any joint proposed pretrial order, so that they are limited to what the court and parties reasonably need for a fair and efficient trial.

 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)                                201

Section 6.01: Civil case management

  1. Form of the preconference Many judges require the parties to prepare and submit a joint proposed pretrial order that incorporates all of the matters they are required to address. Some judges prefer a shorter joint proposed pretrial order and additional matters, such as motions in limine, proposed voir dire questions, or proposed jury instructions, to be addressed separately, either in attachments or as freestanding submissions.

The deadlines for submission should allow time for the parties to prepare and submit any materials that respond to other submitted materials. For example, time is needed to see and review the other side’s exhibits and deposition designations before submitting objections to those exhibits and designations.

  1. Conducting the final pretrial conference
    1. Narrowing and refining issues; ruling on motions in With the parties’ preconference submissions, the judge works with the parties to narrow and refine the issues for trial. Ruling on motions in limine may be an important part of this work. Narrowing and refining the is- sues and ruling in advance on as many issues as the record permits allow the court and parties to conduct the trial more efficiently and within the time allotted on the court’s calendar.
    2. Resolving other evidentiary issues
      • The final pretrial conference provides an opportunity to preadmit exhibits if there will be no objections or if the court is able to resolve the objections and rule on admissibility under Federal Rule of Evidence
      • The final pretrial conference can also be used to address evi- dence-related matters, such as which witnesses may be in the courtroom during the trial under Federal Rule of Evidence 615, the mode of questioning under Rule 611, and identifying exhibits suitable for summaries under Rule
    3. Other issues related to conducting the trial. The final pretrial confer- ence can address any other issues regarding the conduct of the trial, including
      • the order of presenting evidence, particularly if multiple parties are involved;
      • possible bifurcation of the trial;
      • witness-scheduling issues, such as calling witnesses out of order;
      • how to present depositions or electronic evidence;
      • the need for interpreters;
      • special equipment needs; and
      • jury
202                          BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Section 6.01: Civil case management

  1. Firm trial dates and fixed trial If the court has not previously set a firm trial date, that date should be set at the final pretrial conference. The order scheduling the conference can advise attorneys to come with their calendars and with information on the availability of their witnesses and clients. Once the issues and evidence have been identified, the judge, in consultation with the parties, can determine the length of the trial. Consider entering an order limiting the time for the trial, such as by allotting a specific number of trial hours to each party. The adage that work expands to fill the time available applies fully to trials. Trials with established time limits tend to be more focused and more efficient.
  2. Educating parties on the court’s trial Many judges use the final pretrial conference to educate lawyers and parties on the court’s trial practices, such as the extent of lawyer participation in jury voir dire; whether re-cross-examination generally is allowed; or whether jurors are permitted to take notes, to have copies of exhibits, or to submit questions to witnesses. It may also be helpful to educate the lawyers about the court’s expectations for the conduct of trial counsel. For example, the judge can educate the parties about proper practice for marking and presenting exhibits, for approaching witnesses, or for the use of courtroom equipment. Such an education can be particularly valuable for trials involving pro se litigants.
  3. Promoting If a final pretrial conference covers the kinds of issues identified above, parties leaving such a conference will never know more about their dispute, short of trial, than they do at that moment. The final pretrial conference may provide a valuable opportunity for settlement. Some judges encourage the parties to engage in settlement talks after the final pretrial conference and before trial.
  1. The final pretrial order
    1. Issuing the final pretrial After the final pretrial conference, the judge should issue a final pretrial order that reflects the decisions made during the conference. The final pretrial order should clearly identify the issues to be decided at trial, the witnesses to be called, the exhibits to be offered in evidence, and objections preserved for trial. The order should also reflect evidentiary or other rulings made by the judge for trial. A firm trial date should be fixed, as should the length of the trial, where appropriate. Judges may use a proposed final pretrial order submitted jointly by the parties, as modified by the judge, or an order written or dictated specifically for a particular case.
    2. Modifying the final pretrial order
      • By adhering to the final pretrial order—that is, by holding the parties to the issues, evidence, objections, and schedule identified at the final pretrial conference—the judge can help avoid

 

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)                                203

Section 6.01: Civil case management

surprises and ensure that the trial will be completed in the time allotted.

  • Rule 16(e) provides that “[t]he court may modify the order issued after a final pretrial conference only to prevent manifest injus- ” This is a higher standard than the “good cause” test found elsewhere in Rule 16 and is intended to reflect the relative finality of the final pretrial order. It may be useful to restate this standard in the final pretrial order itself.

VI. Conclusion

Case management, beginning early, is essential to controlling costs and burdens of discovery and motions practice, particularly given the challenges of electronic discovery issues. Ongoing judicial management as the case de- velops, which ends in a careful and thorough final pretrial conference, will reduce delays and unnecessary costs and increase the likelihood that the case will be resolved on terms that reflect the strength and weaknesses of the merits, rather than the desire to avoid disproportionate discovery or the costs of an unnecessarily protracted trial. Effective case management is a critical part of achieving “just, speedy, and inexpensive” case resolutions.

References

Civil Litigation  Management  Manual (Judicial Conference  of  the  United States, 2d ed. 2010)

Federal Judicial Center’s Case Management Seminar Materials

Steven S. Gensler, Federal Rules of Civil Procedure, Rules and Commentary (2011)

Manual for Complex Litigation, Fourth (2004) Moore’s Federal Practice, vols. 3 and 6

Wright, Miller & Kane, Federal Practice & Procedure, vol. 6A (2010) Wright, Miller & Marcus, Federal Practice & Procedure, vol. 8 (2010)

Other FJC sources

The Elements of Case Management: A Pocket Guide for Judges (2d ed. 2006) Managing Class Action Litigation: A Pocket Guide for Judges (3d ed. 2010)

Managing Discovery of Electronic Information: A Pocket Guide for Judges (2d ed. 2012)

204                          BENCHBOOK FOR U.S. DISTRICT COURT JUDGES (March 2013)

Benchbook for U.S. District Court Judges (Civil Section 6.01)
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

Copyright © 2020 Laws In Texas. | All Rights Reserved.

To Top