If handled correctly, the pretrial planning conference and the final pretrial stipulation can be used to narrow the facts and legal issues for trial; to authenticate documents and evidence; to lay a foundation for questions for certain witnesses (using factual stipulations); and to greatly decrease the cost of litigation for the client. Often, though, as the trial date looms, attorneys fail to take full advantage of this opportunity. Rather than viewing the pretrial conference and final stipulation as a chore or yet another item on your “to do” list before trial, think strategically about the time and expense required to establish the facts necessary for your client to win each point, and consider whether you can get the opposing side to stipulate to some fact or piece of evidence that reduces that time and expense.
Accomplished federal trial attorney, Nancy Pridgen, offers these practical suggestions to help you make the most of these important pretrial events:
Before the Pretrial Planning Conference
- Review FRCP 16(c)(2)(A)-(P), which lists specific matters to be considered at the pretrial conference. Many district courts have created a form or sample documents to use in creating the final pretrial stipulation. Check the rules in your jurisdiction.
- Review the answers to the Requests for Admissions and Interrogatories propounded to the opposing party. These can be helpful in identifying potential grounds for stipulations.
- Prepare a complete draft of the entire Final Pretrial Stipulation – including your opposing counsel’s parts – before the pretrial planning conference. Preparing a complete draft of the stipulation forces you to focus on the facts, evidence and legal theories at issue in your case; and to anticipate your opponent’s witnesses and exhibits. It helps you to see the case as a whole, before trial, and reduces the chance of omissions or mistakes later. Caution: Do not show this draft to opposing counsel. This is a trial preparation exercise, for your benefit and your eyes only.
At the Pretrial Planning Conference
- The stipulation process requires cooperation with opposing counsel, but it does not require you to divulge your trial strategy. To avoid revealing too much, review your proof outline, your trial plan, and your FRCP 26(a) disclosures. Make a list of the areas about which you have information and opposing counsel does not. Avoid those areas or limit your discussion of them during the conference.
- Often, counsel is unprepared to exchange “trial ready” exhibits and demonstrative evidence before the pretrial conference. Insist on actually seeing these materials and seek court enforcement of disclosure deadlines to make sure you are not surprised at trial.
- The final pretrial stipulation is designed to pin down a final witness list. As with exhibits, insist on a complete list from opposing counsel. Make sure, too, that your list is complete. Any attempt to add new witnesses afterwards normally will be denied by the court. You are not required to disclose rebuttal witnesses.
After the Pretrial Planning Conference
- Always volunteer to draft the Final Pretrial Stipulation. This allows you to choose the language and to gain a detailed knowledge of the contents and meaning of the stipulation, which will be exceedingly helpful at the final pretrial conference with the court.
- Once you draft a final version of the stipulation, send copies to all counsel and allow enough time – at least five working days – for them to respond. If counsel agree to the Final Pretrial Stipulation, hand-deliver the original to all counsel for their signatures.
- Prepare objections to your opponents’ witnesses or exhibits. File your objections within the time specified by local rule or the court’s pretrial order. Any objections not filed within the allotted time usually are waived, except those based on relevancy.
- Address any frivolous claims or defenses asserted by the other side that the court may dispose of in the Final Pretrial Order. FRCP 16(c)(2)(A). Sign the Final Pretrial Stipulation and file it with the clerk of the court. Some judges require a courtesy copy to be filed with the court as well. Check with the court clerk and consult your local rules for guidance.
- Send copies of the signed, filed Stipulation to all parties.
Nancy B. Pridgen is the author of Preparing for Trial in Federal Court. Ms. Pridgen is a partner and managing member of Monnolly Pridgen LLC. She focuses her practice on federal employment litigation, with a specialty in ERISA litigation. Ms. Pridgen has litigated a wide array of federal cases throughout the country, including complex commercial litigation, securities, insurance, tax, immigration, antitrust, constitutional and common-law torts, and civil appeals. Ms. Pridgen earned her law degree from Vanderbilt Law School, where she served as a Managing Editor of the Vanderbilt Law Review and was named NAWL’s Outstanding Woman Law Graduate for her class.
Preparing for Trial in Federal Court is a complete federal practice guide that offers step-by-step guidance for every phase of federal litigation, from pleading and discovery through trial and appeals. This single-volume book is loaded with practice-tested tips and strategic advice, and supported by more than 130 forms you can modify to fit the specific facts of your case.