Pretrial procedures - Pretrial conference and order

Learning Outcomes

This article explains the pretrial management framework under Federal Rule of Civil Procedure 16 as it is tested on the MBE. It identifies how the Rule 26(f) discovery-planning conference feeds into the Rule 16(b) scheduling conference and scheduling order, and what deadlines and provisions a valid scheduling order must contain, including timing requirements and modification for good cause. It explains the purposes and typical subjects of pretrial conferences under Rules 16(a) and 16(c), the required attendees, and the need for counsel with authority to make stipulations and address settlement. It details the function of the final pretrial conference and the final pretrial order, emphasizing how the order supersedes the pleadings, controls issues, witnesses, and exhibits at trial, and may be altered only to prevent manifest injustice. It also analyzes the court’s sanction power under Rule 16(f), including incorporation of Rule 37(b) sanctions, and how courts evaluate failures to appear, failures to participate in good faith, and violations of pretrial orders. Throughout, the article highlights common MBE traps and distinctions among good cause, manifest injustice, and sanction standards.

MBE Syllabus

For the MBE, you are required to understand pretrial procedures in federal court, with a focus on the following syllabus points:

• FRCP 16(b) scheduling conferences and scheduling orders (timing, required contents, and effect).
• The relationship between the Rule 26(f) discovery-planning conference and the Rule 16(b) scheduling order.
• FRCP 16(c) pretrial conferences, including their purposes and the types of matters that may be addressed.
• FRCP 16(e) final pretrial conferences and the final pretrial order, including how the order supersedes the pleadings.
• The different modification standards: “good cause” for scheduling orders versus “manifest injustice” for final pretrial orders.
• FRCP 16(f) sanctions for failing to appear, failing to participate in good faith, or disobeying pretrial orders, and the range of sanctions available (including incorporation of Rule 37(b) sanctions).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Under FRCP 16(b), a scheduling order setting deadlines for joinder, motions, and discovery must generally be issued by the court:
   1. Only upon motion by a party.
   2. After consulting with the parties, usually within 90 days after any defendant has been served or 60 days after any defendant has appeared.
   3. Within 30 days of the filing of the complaint.
   4. Only after discovery is complete.
2. The standard for modifying a final pretrial order under FRCP 16(e) is:
   1. Good cause shown.
   2. Only to prevent manifest injustice.
   3. Substantial justification.
   4. Within the court's broad discretion.
3. Which of the following is LEAST likely to be a primary purpose of a pretrial conference under FRCP 16(a)?
   1. Promoting settlement.
   2. Expediting the disposition of the action.
   3. Adjudicating the merits of disputed factual issues.
   4. Improving the quality of the trial through more thorough preparation.

Introduction

Rule 16 is the central pretrial management rule in the Federal Rules of Civil Procedure. It authorizes judges to shape the litigation from an early stage, rather than waiting passively for the parties to control pace and scope. The rule operates through three mechanisms:

• A Rule 26(f) discovery-planning conference between the parties.
• A Rule 16(b) scheduling order that sets the basic timetable for the case.
• One or more Rule 16 pretrial conferences, culminating (often) in a final pretrial order that governs the trial.

On the MBE, you will not be asked to draft a scheduling order or pretrial order, but you will be asked to recognize what these orders must contain, how binding they are, when they can be changed, and what happens when a party or lawyer ignores them.

Key Term: Pretrial Conference
A court-directed meeting of the attorneys (and sometimes parties) under Rule 16 to manage the case—clarifying issues, planning discovery and trial, and encouraging settlement.

Key Term: Rule 26(f) Conference
A required meeting of the parties “as soon as practicable” to discuss their claims and defenses, preservation of evidence, initial disclosures, and a discovery plan, which precedes and informs the Rule 16(b) scheduling order.

Understanding how these steps fit together is essential to seeing the logic of Rule 16 and spotting exam traps, especially the different modification standards and sanctions.

The Scheduling Conference and Order (FRCP 16(b))

Purpose and Relationship to Rule 26(f)

Before the court issues a scheduling order, the parties must hold their Rule 26(f) conference and submit a written discovery plan. The court then uses that plan—along with its own assessment of what is needed—to issue a Rule 16(b) scheduling order.

Key Term: Scheduling Order
A court order issued early in litigation under FRCP 16(b) that sets deadlines for major case events like joinder, amendments, discovery, and motions, and that can be modified only for good cause with the judge’s consent.

The scheduling order is sometimes called a “case management order.” It is designed to:

• Fix a clear litigation timetable.
• Prevent indefinite delay in adding parties, amending pleadings, and completing discovery.
• Encourage early motion practice (e.g., summary judgment) that may narrow or dispose of the case.

Unless exempted by local rule (for example, certain categories of simple cases), the court must issue a scheduling order after receiving the parties’ Rule 26(f) report or after consulting with the parties.

Required and Permitted Contents

FRCP 16(b)(3)(A) requires the scheduling order to limit the time for:

• Joining other parties.
• Amending the pleadings.
• Completing discovery.
• Filing motions (including summary judgment motions).

In addition, FRCP 16(b)(3)(B) allows the order to address many optional matters, such as:

• Dates for additional pretrial conferences and a trial date.
• Modification of timing and extent of certain discovery (e.g., more or fewer depositions).
• Agreements about electronic discovery.
• Procedures for dealing with privilege or work-product issues (e.g., clawback orders).
• Limitations on the length or number of depositions and interrogatories.

On the MBE, the fact pattern may describe an order that sets some but not all of these deadlines. The key is that it must at least limit the time for joinder, amendments, discovery, and motions to qualify as a Rule 16(b) scheduling order.

Timing

The scheduling order must be issued “as soon as practicable,” but in any event:

• Within the earlier of 90 days after any defendant has been served with the complaint, or
• 60 days after any defendant has appeared.

This timing is a favorite MBE detail—memorize it.

The court may hold a scheduling conference with counsel before issuing the order, but the rule allows the order to be issued “after receiving the parties’ report” or “after consulting with the parties’ attorneys and any unrepresented parties,” which can include telephone or video conferences.

Effect of the Scheduling Order

Once entered, the scheduling order “controls the course of the action” unless modified. In practice, that means:

• Parties are bound by its deadlines absent modification.
• Failure to comply can lead to sanctions under Rule 16(f) and, by incorporation, Rule 37(b) sanctions.
• Other orders (e.g., discovery orders) and later pretrial orders are typically layered on top of, not in place of, the scheduling order.

Modification: The “Good Cause” Standard

Rule 16(b)(4) provides that a scheduling order “may be modified only for good cause and with the judge’s consent.”

Key Term: Good Cause
A standard that focuses on the moving party’s diligence; good cause to modify a scheduling order exists when the party, despite acting reasonably and diligently, could not meet the deadline.

The key is diligence, not just inconvenience. Courts ask:

• Did the party begin discovery and motion practice early enough?
• Did new facts arise that could not reasonably have been discovered earlier?
• Did the party promptly seek modification once the problem became apparent?

Simply being busy, forgetting a deadline, or changing litigation strategy rarely constitutes good cause.

Worked Example 1.1

Plaintiff sued Defendant in federal court. The court issued a scheduling order setting a deadline for amending pleadings for June 1. On June 15, Plaintiff moved to amend the complaint to add a new claim based on facts discovered during a deposition taken on June 10. Plaintiff's counsel states she was extremely busy with other cases before June 1. Should the court allow the amendment?

Answer:
Likely no. Plaintiff must show “good cause” to modify the scheduling order’s deadline under Rule 16(b)(4). Good cause focuses on diligence. The fact that counsel was busy with other cases does not show diligence in this case. Plaintiff waited until June 10 to take the deposition; if that delay was unreasonable in light of the case schedule, good cause is lacking. Unless Plaintiff can show that she diligently pursued discovery and could not reasonably have discovered the basis for the new claim before June 1, the court should deny the motion.

Worked Example 1.2

Assume the same facts as in Worked Example 1.1, except that Plaintiff scheduled the deposition for May 20, but Defendant’s witness twice requested rescheduling for health reasons, leading to a June 10 date. Plaintiff promptly moved to amend on June 15. Does that change the analysis?

Answer:
Yes. Here Plaintiff can argue that she diligently tried to complete the deposition before the deadline and that the delay was outside her control. Plaintiff promptly sought amendment after learning the new facts. Many courts would find good cause in these circumstances and modify the scheduling order to allow the amendment.

Pretrial Conferences (FRCP 16(a), (c))

After the scheduling order is in place, the court may require the parties to attend one or more pretrial conferences. These conferences are flexible tools; Rule 16(a) and (c) provide a broad list of purposes and topics.

Purposes of Pretrial Conferences

Rule 16(a) lists key purposes, including:

• Expediting disposition of the action.
• Establishing early and continuing control.
• Discouraging wasteful pretrial activities.
• Improving trial quality through preparation.
• Encouraging settlement.

Notice that “adjudicating the merits of disputed factual issues” is not listed. The conference is about managing the case, not deciding it.

Matters for Consideration at Pretrial Conferences

Rule 16(c)(2) gives a nonexclusive list of matters that may be addressed. Common MBE-tested items include:

• Formulating and simplifying issues, including eliminating frivolous claims or defenses.
• Amending pleadings to reflect the real issues in dispute.
• Obtaining admissions and stipulations about facts and documents to narrow what must be proved.
• Avoiding unnecessary proof and cumulative evidence, saving trial time.
• Determining appropriateness and timing of summary judgment or other dispositive motions.
• Controlling and scheduling discovery, including limits on scope or sequence.
• Identifying witnesses and documents, setting deadlines for exchanging exhibit lists, witness lists, and pretrial briefs.
• Discussing settlement and alternative dispute resolution procedures.
• Deciding motions in limine or other pending motions that affect trial.
• Ordering separate trials of claims or issues under Rule 42(b).
• Setting trial time limits to keep the trial focused.
• Addressing “any other matters appropriate in the circumstances.”

On the exam, if you see a judge using a pretrial conference to streamline issues, set limits on evidence, or encourage settlement, that is almost certainly authorized by Rule 16(c).

Attendees and Authority Requirements

Rule 16(c)(1) requires that at least one attorney for each party (or the unrepresented party) attend any pretrial conference. Importantly, the attending attorney must have authority to make stipulations and admissions about all matters reasonably expected to be discussed.

The court may also direct a party or its representative to be present or reasonably available by telephone or other means for settlement discussions.

If an attorney appears without adequate authority—e.g., cannot meaningfully discuss settlement or stipulate to facts—the court may treat this as a failure to participate in good faith, triggering Rule 16(f) sanctions.

The Final Pretrial Conference and Order (FRCP 16(e))

Purpose and Timing

As trial approaches, the court may hold a final pretrial conference. This is usually held as close to the start of trial as is reasonable. It is more focused than earlier conferences:

• The aim is to formulate a trial plan, including the order of proof and the admission of evidence.
• The court expects the parties to have completed discovery and to know their witnesses, exhibits, and legal theories.

The conference must be attended by:

• At least one attorney who will actually conduct the trial for each party, and
• Any unrepresented party.

The Final Pretrial Order

Following the conference, the court issues a final pretrial order that memorializes what was decided.

Key Term: Final Pretrial Order
An order entered after the final pretrial conference under FRCP 16(e) that governs the later course of the action—including issues to be tried, witnesses, exhibits, and stipulations—unless modified to prevent manifest injustice.

Typical contents include:

• A statement of the issues of fact and law to be tried.
• Claims and defenses that remain in the case (and, by implication, those that have been abandoned).
• Lists of witnesses each side intends to call.
• Lists of exhibits each side intends to offer.
• Stipulations of fact and authenticity.
• Any agreed time limits or trial structure.

Crucially, the final pretrial order supersedes the pleadings. Matters not preserved in the order are generally deemed waived, even if they were pleaded in the complaint or answer.

Effect and Modification: The “Manifest Injustice” Standard

Rule 16(e) provides that the final pretrial order “controls the course of the action” unless modified, and that it may be modified only to prevent manifest injustice.

Key Term: Manifest Injustice
A strict standard for modifying a final pretrial order; modification is permitted only when adherence to the order would result in a clear and serious unfairness, considering the importance of the change, the movant’s diligence, and the prejudice and disruption to the opposing party and the court.

Manifest injustice is a significantly higher bar than good cause. Factors courts often consider include:

• The importance of the evidence or issue to the moving party’s case.
• The explanation for the failure to include it in the pretrial order (i.e., diligence).
• The potential prejudice to the opposing party (e.g., surprise, inability to prepare).
• The impact on trial schedule and judicial resources.

Worked Example 1.3

Plaintiff sued Defendant for breach of contract. The final pretrial order identified liability and damages as issues and listed certain witnesses and exhibits. It did not mention a possible fraud claim that Plaintiff had pleaded but then largely ignored in discovery. The day before trial, Plaintiff moves to amend the final pretrial order to include the fraud claim, arguing that the facts overlap with the contract claim and no additional discovery is needed. Defendant objects. How should the court rule?

Answer:
The court should deny the motion absent a very strong showing of manifest injustice. The final pretrial order supersedes the pleadings; claims not included are generally waived. Plaintiff had ample opportunity to preserve the fraud claim and failed to do so, which suggests a lack of diligence. Adding a new claim on the eve of trial risks unfair surprise and could alter the scope of trial. Courts are reluctant to modify the final pretrial order this late unless the omission resulted from factors beyond the party’s control.

Worked Example 1.4

Plaintiff sued Defendant for personal injuries. The final pretrial order listed a treating physician as a witness and summarized his expected testimony. Two days before trial, the physician suffers a medical emergency and cannot appear. Plaintiff promptly moves to modify the final pretrial order to add a different physician who has reviewed the records and can offer similar testimony. Defendant objects, arguing prejudice. What result?

Answer:
The court is more likely to find manifest injustice here. Plaintiff acted diligently throughout and the problem arose unexpectedly. The substitute testimony appears important to Plaintiff’s case and is closely related to evidence already disclosed. The court could mitigate prejudice by allowing Defendant a brief continuance or limited additional discovery. Under these circumstances, modifying the final pretrial order to prevent manifest injustice is appropriate.

Sanctions (FRCP 16(f))

Rule 16(f) gives the court robust sanction authority to enforce pretrial orders and conference obligations. Sanctions may be imposed if a party or attorney:

• Fails to appear at a scheduling or pretrial conference.
• Is substantially unprepared to participate in the conference or does not participate in good faith.
• Fails to obey a scheduling or other pretrial order.

Key Term: Rule 16(f) Sanctions
Sanctions a court may impose for violations of Rule 16, including failure to attend, failure to participate in good faith, or failure to obey pretrial orders; sanctions can range from fee-shifting to case-dispositive penalties.

Types of Sanctions

Rule 16(f)(1) authorizes “any just orders,” including the sanctions listed in Rule 37(b)(2)(A)(ii)–(vii), such as:

• Striking pleadings in whole or part.
• Staying further proceedings until an order is obeyed.
• Dismissing the action or proceeding in whole or part.
• Rendering a default judgment against the disobedient party.
• Treating certain facts as established for purposes of the action.

In addition, Rule 16(f)(2) requires the court to order the party, its attorney, or both to pay the reasonable expenses—including attorney’s fees—incurred because of the noncompliance, unless:

• The noncompliance was substantially justified, or
• Other circumstances make an expense award unjust.

Note that willfulness is not strictly required; even negligent failure to comply can justify sanctions, though severe sanctions like dismissal or default usually require a showing of willfulness or bad faith.

Worked Example 1.5

The court orders the parties to appear at a pretrial conference. Defendant’s attorney fails to appear and offers no explanation. Plaintiff’s counsel traveled from out of town and incurred significant expenses. Defendant’s attorney later explains that he “forgot to calendar the conference.” What sanctions are appropriate?

Answer:
At a minimum, the court should order Defendant’s attorney (or Defendant, or both) to pay Plaintiff’s reasonable expenses, including attorney’s fees, caused by the failure to attend, because the failure was not substantially justified and there is no indication that an expense award would be unjust. The court may also issue additional sanctions, such as requiring the attorney to personally attend future conferences or limiting future extensions. Forgetfulness does not constitute substantial justification.

Worked Example 1.6

Plaintiff repeatedly ignores the scheduling order’s discovery deadlines, producing key documents months late and failing to supplement responses. Despite warnings, Plaintiff’s noncompliance forces Defendant to postpone depositions and to incur additional costs. Defendant moves for sanctions, including dismissal. How should the court analyze this request?

Answer:
The court may impose sanctions under Rule 16(f) and by reference to Rule 37(b)(2)(A). Given the repeated, unjustified violations despite warnings, the court may consider serious sanctions, including issue preclusion, evidence exclusion, or even dismissal. Before imposing dismissal, most courts require findings of willfulness, bad faith, or fault, and a determination that lesser sanctions would be ineffective. The court is likely to at least award fees and costs and may also preclude Plaintiff from using certain late-disclosed evidence at trial.

Key Point Checklist

This article has covered the following key knowledge points:

• Rule 16 is the main pretrial management rule and works in tandem with the Rule 26(f) discovery-planning conference.
• A Rule 16(b) scheduling order must limit the time for joinder, amendments, discovery, and motions, and must be issued within 90 days after service on any defendant or 60 days after any defendant appears.
• The scheduling order controls the course of the action and may be modified only for good cause and with the judge’s consent, with diligence as the central consideration.
• Pretrial conferences under Rule 16(a) and (c) are used to streamline issues, manage discovery, improve trial preparation, and encourage settlement; they can address a broad range of case-management matters.
• The final pretrial conference produces a final pretrial order that supersedes the pleadings, specifies issues to be tried, and controls the trial.
• Modifying a final pretrial order requires a showing that modification is necessary to prevent manifest injustice, a more demanding standard than good cause.
• Rule 16(f) authorizes sanctions, including those set out in Rule 37(b)(2)(A), for failure to attend conferences, failure to participate in good faith, or failure to obey pretrial orders, and ordinarily requires fee-shifting unless the violation was substantially justified.

Key Terms and Concepts

• Scheduling Order
• Pretrial Conference
• Final Pretrial Order
• Rule 26(f) Conference
• Good Cause
• Manifest Injustice
• Rule 16(f) Sanctions