Pretrial procedures - Pretrial conference and order

Learning Outcomes

This article examines the procedures governing pretrial conferences and orders under the Federal Rules of Civil Procedure (FRCP), primarily Rule 16. It clarifies the purpose and timing of scheduling conferences and final pretrial conferences, outlines the contents and binding effect of scheduling and pretrial orders, and details the standards for modifying these orders and the potential sanctions for noncompliance. After studying this material, you will be equipped to identify the key requirements and consequences associated with pretrial management under FRCP 16 on the MBE.

MBE Syllabus

For the MBE, a thorough understanding of pretrial management under FRCP 16 is necessary. This includes familiarity with scheduling orders, pretrial conferences, and the final pretrial order. You should be prepared to:

• Identify the purpose and required contents of a scheduling order under FRCP 16(b).
• Recognize the standard for modifying a scheduling order ("good cause").
• Understand the objectives and scope of matters discussed at pretrial conferences under FRCP 16(c).
• Appreciate the significance and binding effect of the final pretrial conference and order under FRCP 16(e).
• Recall the strict standard for modifying a final pretrial order ("manifest injustice").
• Identify the grounds for imposing sanctions related to pretrial conferences and orders under FRCP 16(f).

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

Federal Rule of Civil Procedure (FRCP) 16 governs pretrial conferences, scheduling, and management. Its primary goal is to streamline litigation, manage cases efficiently, and facilitate settlement or improve the quality of the trial. Rule 16 outlines procedures for early judicial involvement in managing the case timeline through scheduling orders and for focusing the issues and evidence closer to trial through pretrial conferences, culminating in a final pretrial order that shapes the trial itself. Understanding the different types of conferences and orders, their requirements, effects, and modification standards is essential for the MBE.

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

Unless exempted by local rule (e.g., for 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. This order typically sets deadlines for:

• Joining other parties.
• Amending the pleadings.
• Completing discovery.
• Filing motions.

The order may also include dates for pretrial conferences, a trial date, and other relevant matters. It aims to control the pace of litigation early on.

Timing

The court must generally issue the scheduling order as soon as practicable, but usually within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.

Modification

Once entered, the scheduling order controls the course of the action. It "may be modified only for good cause and with the judge's consent." [FRCP 16(b)(4)] This standard requires the party seeking modification to show that, despite diligence, the deadline could not reasonably be met.

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.

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 the diligence of the party seeking modification. Simply being busy with other cases generally does not constitute diligence in meeting court-ordered deadlines. Unless Plaintiff can show she was diligent in pursuing discovery before the deadline and the need for amendment only became apparent after June 1 despite that diligence, good cause is likely lacking.

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

The court may direct attorneys and unrepresented parties to appear for one or more pretrial conferences. These conferences serve various purposes, including:

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

Matters for Consideration

At any pretrial conference, the court may consider and take appropriate action regarding:

• Formulating and simplifying issues, including eliminating frivolous claims or defenses.
• Amending pleadings.
• Obtaining admissions and stipulations about facts and documents.
• Avoiding unnecessary proof and cumulative evidence.
• Determining the appropriateness and timing of summary adjudication under Rule 56.
• Controlling and scheduling discovery.
• Identifying witnesses and documents, scheduling exchanges of pretrial briefs, and setting dates for further conferences and trial.
• Settlement possibilities and alternative dispute resolution.
• The form and content of the pretrial order.
• Disposing of pending motions.
• Adopting special procedures for complex issues.
• Ordering separate trials under Rule 42(b).
• Establishing a reasonable limit on time allowed for presenting evidence.
• Other matters aiding in the disposition of the action.

Attendees

At least one attorney for each party (or the unrepresented party) must attend any pretrial conference. The attending attorney must have the authority to make stipulations and admissions about all matters reasonably anticipated for discussion. If appropriate, the court may require a party or its representative to be present or reasonably available by phone to consider possible settlement.

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

The court may hold a final pretrial conference to formulate a trial plan, including a plan for the admission of evidence. This conference is held as close to the start of trial as reasonable and must be attended by at least one attorney conducting the trial for each party and by any unrepresented party.

Following this conference, the court issues a final pretrial order. This order details the decisions made and agreements reached at the conference, often listing witnesses to be called, evidence to be presented, and stipulations.

Key Term: Final Pretrial Order An order entered after the final pretrial conference under FRCP 16(e) that controls the subsequent course of the action, including the trial plan, unless modified by the court.

Effect and Modification

The final pretrial order controls the course of the action unless modified by the court. Critically, this order may be modified only to prevent manifest injustice. [FRCP 16(e)] This is a much stricter standard than the "good cause" standard for modifying scheduling orders. It reflects the importance of finality and preparation as trial approaches. Parties are generally held to the witnesses, evidence, and theories identified in the final pretrial order.

Worked Example 1.2

Plaintiff sued Defendant for breach of contract. The final pretrial order listed three witnesses Plaintiff intended to call. Two days before trial, Plaintiff located a new witness, Eve, who has highly relevant testimony corroborating Plaintiff's claim. Plaintiff moves to modify the final pretrial order to add Eve as a witness. Defendant objects, arguing surprise and inability to prepare for cross-examination. How should the court rule?

Answer: The court should deny the motion unless Plaintiff can show that failing to allow Eve's testimony would result in "manifest injustice." This requires balancing the importance of Eve's testimony and Plaintiff's diligence against the prejudice to Defendant (surprise, inability to prepare). Given the late stage, the surprise to Defendant, and the likely disruption, courts are generally reluctant to modify the final pretrial order absent truly exceptional circumstances demonstrating manifest injustice. Plaintiff would need a strong justification for the late discovery of Eve.

Sanctions (FRCP 16(f))

The court has broad authority to impose sanctions if a party or attorney:

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

Sanctions may include those authorized by FRCP 37(b)(2)(A)(ii)–(vii) (e.g., striking pleadings, dismissal, default judgment) and requiring the disobedient party or attorney (or both) to pay the reasonable expenses, including attorney’s fees, incurred because of noncompliance, unless the noncompliance was substantially justified or other circumstances make an award unjust.

Key Point Checklist

This article has covered the following key knowledge points:

• FRCP 16 governs pretrial conferences and orders, aimed at efficient case management.
• Scheduling orders (Rule 16(b)) set early deadlines and require "good cause" for modification.
• Pretrial conferences (Rule 16(c)) address various matters to streamline the case and facilitate settlement.
• The final pretrial conference and order (FRCP 16(e)) control the course of the trial.
• Modifying a final pretrial order requires showing it is necessary to prevent "manifest injustice."
• Failure to comply with Rule 16 or its orders can result in sanctions (Rule 16(f)), including payment of expenses and potentially case-dispositive sanctions.

Key Terms and Concepts

• Scheduling Order
• Final Pretrial Order