Surviving the Last 90 Days before Trial
Or, Getting Motions, Discovery, and Orders Ready for Trial Without Letting Anything Slip By
David A. Chaumette
I. SCOPE OF ARTICLE
This paper addresses preparing for trial, with a particular focus
on the preparations needed during the last ninety days before the
trial begins. As with so many things in litigation, it is sometimes
convenient to think of the components needed as persons,
papers, and other things. That’s the structure of this paper. Please
keep in mind that this paper is just an overview. Each case is different
and the facts and posture of the specific case will change
how some of the tips contained in this article.
II. THE TRIAL TEAM
Having the right team in place is probably not something to be
fixed in that last ninety days. That said, it is also important that
your team’s utility be maximized. What follows are some suggested
roles for each member of the team.
A. The office manager or secretary
If the trial is out of town, this person has several critical roles.
For example, an out-of-town trial will need some kind of out
of town office close to courthouse. That office—and it may
just be your hotel room—will need a fax machine, a computer,
high-speed printer and scanner, copy machine and highspeed
internet connections. It is also helpful to have similar
setups in each attorney’s hotel room so that the trial team can
communicate instantly with each other and opposing counsel.
It also allows you to do legal research without going to a law
library.
B. The paralegal
The paralegal has several important duties as well. Among
them are:
1. Review (and if necessary update) Case Information
Sheet to include names and phone numbers of all courtroom
personnel and of opposing counsel’s trial offices;
2. Visit the courtroom before the trial begins, review the
judge’s webpage on the internet (noting all specific procedures
and rules outlined there), prepare sketch of courtroom,
obtain necessary audio-visual equipment;
3. Determine whether other cases or hearings are set for
trial at same time or immediately preceding our case which
could cause trial to be postponed or delayed;
4. Supervise the marking of deposition excerpts and the
editing of video.
5. Know what the mles about which counsel gets which
table and be prepared to arrive early the first day of trial to
stake claim to best counsel table.
6. Find out about availability of real time reporting from
the court reporter and, if not, determine from the rest of
the trial team if there are portions of the trial (voir dire,
opening statements, or other trial excerpts) that will need
to be transcribed during the course of the trial;
7. Determine how the court conducts voir dire and what
the role of the attorneys is in jury selection;
8. Makes sure the deposition corrections are marked on all
copies;
9. Forget detailed deposition summaries; 2-pagers should
have been done within 24 hours of the completion of each
deposition;
10. Prepare witness files, including:
a. Deposition transcript
b. All prior sworn statements, including interrogatories
and Requests For Admissions
c. Documents the witness authored
d. For experts, their reports and any prior writings,
studies or testimony.
11. Make sure jury trial demanded and jury fee paid, unless
we have decided not to request a jury trial.
12. File any business records affidavits proving up trial
exhibits (Tex. R. Evid. 902(10)) at least 14 days prior to trial.
13. Supplement all discovery requests, particularly those
seeking the identity of persons with knowledge or experts.
a. Specifically verify with each witness identified that
interrogatory answers correctly show the person’s name,
address, and phone number.
b. Confirm with attorneys and experts that interrogatory
answers correctly describe each expert’s opinions and
bases of those opinions.
c. If you are late with your supplementation, consider
your best arguments on good cause, including inadvertence
of counsel, lack of surprise, uniqueness of the
excluded evidence. Tex. R. Civ. P. 193.6(a), 195.6(b).
However, these factors do not guarantee that late supplementation
will be overlooked.
14. Incorporate all deposition exhibits in the hot chronology
set.
a. Once lead counsel has selected your trial exhibits,
non-exhibits may be removed from chronology. i. All trial exhibits, yours and theirs, should be put in
chronological order.
ii. Use color coding scheme, circling exhibit number,
to indicate which are not objected to, which you or
the other side have objected to, and, eventually,
which have been admitted.
b. Hopefully, by this time, all deposition exhibits will
have been marked only once, simply as Exhibit_____.
Get that agreement from the other side before the first
deposition. See list of Pretrial Agreements.
15. Contact all trial witnesses.
a. Provide each his deposition and tell him to read and
highlight, in
i. different colors, troublesome answers and erroneous
ones. As to the former, they will be discussed
with lead counsel during witness prep.
ii. As to the latter, they should be corrected immediately
and a letter sent the other side, although videotaped
depositions limit the ability to deny saying
something you said.
b. Schedule trial prep and notify witness of probable
appearance date.
c. Keep future witnesses updated on probable appearance
date.
16. Subpoena witnesses that will not attend voluntarily.
C. The Trial Lawyers
The trial lawyers will have many things to consider once tria
begins. Therefore, it is critical to eliminate as many issues as
possible before trial to simplify the trial itself. Among the
items that should (or must) be handled ahead of time are:
1. Develop a Trial Plan.
a. You will need a plan on how you will utilize your time
for opening, closing, direct and video depositions before
you begin.
b. And at the end of each day, you should update your
plan based on how much time you have used.
2. Review ABA’s Civil Trial Practice Standards (1998) so you
can make intelligent decisions on issues like note-taking,
interim arguments, juror questions, preliminary instructions
and then have some authority to use with the trial
judge.
3. Prepare for voir dire, either with questions to ask the jury
or, in some cases, the juror questionnaire itself.
4. Prepare the witness list, and decide on order.
a. The first cross is often the most exhaustive, and best,
so try to serve up a non-controversial witness to begin
with.
b. If you represent the plaintiff, however, consider having
your first witness respond to statements made by
defense counsel in opening.
c. Never underestimate the power of calling an adverse
witness early in your case, before he is educated and
when you can make early speeches during cross.
d. End with a strong witness.
5. Select courtroom representative, usually the person who
knows the most and has the most to gain by watching and
learning.
6. Decide which attorneys will have speaking roles at trial
and divide up the witnesses to prepare Q&As and cross (in
the latter case, guessing in the first instance who the other
side will call).
7. Select Trial Exhibits.
a. Decide which exhibit to use with each witness.
b. Make sure you can authenticate and prove up each
disputed exhibit.
8. Decide on demonstrative aids and in-court equipment,
including juror notebook contents, potentially key documents,
witness profiles and photos if available, agreed-upon
glossary and agreed-upon simplified timeline.
9. Update chronology.
10. Prepare short bench memos on anticipated evidentiary
problems.
11. Prepare pretrial order.
a. The most important part is the statement of the case
to be read to the jury before voir dire.
b. Don’t waste time with stipulations/admissions.
12. Designate deposition testimony.
a. Limit video deposition designations as much as possible.
b. Pick your designations from the videos rather than
reading transcripts.
c. Color-code yours, theirs and any responses.
IV. WORKING WITH WITNESSES
A. Your Witnesses
1. Basic Instructions to All Witnesses:
a. If the witness will testify about facts and records, he
or she should be familiar with those facts and records.
b. The witness should dress in normal business attire for
court (neat, but not overdressed).
c. The witness should bring the trial subpoena to court
(if applicable).
d. In most cases, non-party witnesses will be instructed
to remain outside of the courtroom until ready to testify
under “the rule.”
e. The witness should speak clearly and loudly and look
at the jury when testifying.
f. The witness should listen to each question asked and
be sure that he or she fully understands it before testifying.
g. If the witness does not understand a question, the
witness should be instructed to say so. Never guess
about the meaning of a question.
h. The witness should be instructed to answer only the
question asked—then stop. However, if an explanation
to a “yes” or “no” question is required, then the witness
should say so.
i. In most cases, the witness should not testify about
what someone else told him or her (hearsay).
j. The witness should avoid equivocal answers (“I think
so”); instead, the witness should provide definite
answers (“yes”).
k. The witness should be instructed to ask for a break if
he or she feels tired or fatigued during testimony.
l. The witness should answer all questions honestly and
truthfully.
2. For Direct
a. Witness preparation will vary depending on the circumstances
of the case and the witness.
i. Prepare a short outline of what you want to cover.
ii. Select exhibits you wish to cover with the witness.
b. Consider the use of demonstratives to avoid leading.
If you must agree to exchange demonstratives with the
other side, limit it to providing the other side with
demonstratives used in opening and cross 24-hours in
advance. Do not agree to exchange demonstratives used
for cross.
c. Then prepare Q&A.
i. Incorporate the bad documents and hardest questions.
ii. Give your witness plenty of opportunity to rewrite.
iii. Tell story in chronological order.
iv. Keep questions short so the witness, rather than
you, tells the story.
v. Use enough questions to avoid requiring your witness
to make speeches and requiring you to lead.
3. Cross-Examination
a. Provide witness your idea of the trial testimony —particularly the hardest questions.
b. Review that witness’s deposition, first without and
then with the witness.
c. Practice cross on video, if possible.
B. Adverse witnesses
1. Prepare short list of what you really hope to establish.
2. Index witness deposition, with highlights.
3. Select and highlight exhibits to impeach with.
4. Write questions.
a. Do not fear open-ended ones.
b. Use cross to argue your case.
c. Remember that to impeach you must ask the question
in the same wording.
C. Expert Witnesses
1. Deadline for Designating an Expert — Federal Court
a. FRCP 26(a)(2) — establishes a schedule for making
initial disclosures about testifying experts.
i. The deadlines for disclosure may be directed by
court order. FRCP 26(a)(2)(C).
ii. If not addressed by the scheduling order, a party
must designate experts and supply the information
required by FRCP 26(a)(2)(A):
(a) Initial expert disclosures under FRCP 26(a)(2)
must be made by the date set by the court or stipulated
to by the parties, which must be at least 90
days before trial.
(b) Parties must disclose the testimony of rebuttal
experts within 30 days of disclosure of the other
party’s witnesses on the same issue.
2. Challenging an Expert Witness—Federal Standard
a. FRE 702—If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training
or education may testify thereto in the form of an
opinion or otherwise, if
(1) the testimony is based on
sufficient facts or data,
(2) the testimony is the product
of reliable principles and methods, and
(3) the witness
has applied the principles and methods reliably to the
facts of the case.
b. FRE 703
i. The facts or data in the particular case upon which
an expert bases an opinion may be those perceived or
made known to the expert at or before the hearing.
ii. If of a type reasonably relied upon by experts in
the particular field in forming opinions or inferences
upon the subject, the facts or data need not be
admissible in evidence in order for the opinion or
inference to be admitted.
iii. Facts or data that are otherwise inadmissible shall
not be disclosed to the jury by the proponent of the
opinion or inference unless the court determines that
their probative value in assisting the jury to evaluate
the expert’s opinion substantially outweighs their
prejudicial effect.
c. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993)
i. Established the trial judge as the “gatekeeper” for
expert testimony
ii. Expert testimony must be both reliable and relevant
iii. Daubert’s Checklist for Determining Reliability:
(a) Whether the theory or technique has been
tested
(b) Whether it has been subject to peer review
(c) Its known or potential rate of error
(d) The existence of standards controlling its operation
(e) The degree to which it has been accepted in
the relevant scientific community
iv. Non-judicial uses made of the theory or technique
(addressed by Ninth Circuit and later by the Texas
Supreme Court)
d. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)—expanded Daubert to encompass all types of expert testimony.
e. Weisgram v. Marley Co., 528 U.S. 440 (2000)—reversal—not remand—is appropriate remedy when expert
testimony admitted at trial is found inadmissible on
appeal.
3. Deadlines for Designating an Expert—Texas Courts
a. TRCP 195.2 governs the designation of testifying
experts.
i. Establishes a schedule for responding to requests
for disclosure about testifying experts.
ii. A party seeking affirmative relief must identify its
testifying experts within 30 days of the services of the
request for disclosure or 90 days before the end of
discovery period, whichever is later.
iii. A party not seeking affirmative relief must identify
its testifying experts within 30 days after the service
of the request for disclosure or 60 days before the
end of the discovery period, whichever is later.
4. Challenging an Expert Witness—Texas Standard
a. Texas Rule of Evidence 702—If scientific, technical, or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in
the form of an opinion or otherwise.
b. TRE 703
i. The facts or data in the particular case upon which
an expert bases an opinion or inference may be those
perceived by, reviewed by, or made known to the
expert at or before the hearing.
ii. If of a type reasonably relied upon by experts in
the particular field in forming opinions or inferences
upon the subject, the facts or data need not be
admissible in evidence.
c. The Robinson Standard
i. The Texas Supreme Court adopted and applied
Daubert in Texas. El. du Pont de Nemours & Co. v.Robinson, 923 S.W.2d 549 (Tex. 1995).
ii. Robinson analysis applies to all expert testimony,
not just scientific testimony. Gammill v. Jack
Williams Chevrolet, 972 S.W.2d 713 (Tex. 1998).
d. The gatekeeper function requires an inquiry into
whether the expert’s qualifications actually extend to the
precise issue at hand. Broders v. Heise, 924 S.W.2d 148
(Tex. 1996).
e. Courts emphasize “flexibility” in the Daubert/Robinson
analysis you may add your own factors to expose
strengths or weaknesses in a particular expert’s testimony.
5. Procedural Issues
a. Case law and rules of evidence do not mandate that a
Daubert challenge be made before trial.
i. The Texas Supreme Court has held:
(a) A party must object before trial when the evidence
is offered
(b) An objection made after the jury verdict is too
late
(c) An objection made when the witness begins
his testimony is timely
(d) An objection to an expert’s testimony immediately
after cross examination is timely.
ii. You should always consider local rules, pretrial
scheduling orders, and strategic issues in determining
when to make the challenge.
b. When a party challenges an opponent’s expert witness,
the burden shifts to the opponent to prove that the
expert is qualified.
c. The movant must insist on a hearing outside the
presence of the jury and preserve error if the trial court refuses.
d. The movant must preserve error when the expert is
allowed to testify and at all appropriate times thereafter,
including a motion for new trial.
6. Parties should always anticipate issues that may be
raised by testimony at trial that are not within an expert’s
area of expertise.
V. THE DOCUMENTS
A. A Quick Overview.
1. Review your pleadings.
a. Are all necessary parties joined and before the court?
b. Are the actual issues in the case included in the pleadings?
c. If parties or issues need to be added, the pleadings
may require amendment.
d. This would also be a good time to review your opponent’s
pleadings as well.
2. Review the status of pretrial preparation.
a. Written Discovery.
i. Depositions
ii. Interrogatories
iii. Document Requests
iv. Requests for Admissions
b. All Exhibits (including demonstratives)
c. Other Pretrial Filings
i. Trial briefs
ii. Proposed jury instructions and questions
iii. Is the jury charge in order?
d. Other Evidential Documents
i. Summaries of voluminous documents.
ii. Business records affidavits (Texas).
B. The Jury Charge
1. The jury charge shows where the issues really are.
a. Use pattern instructions where available.
b. Annotate to instructions given in other cases, not to
language of opinions.
c. Consider preliminary instructions.
2. The jury charge issues are reviewed de novo on appeal
and these issues still present the best appellate points.
a. Sterling Trust Co. v. Roderick Adderley, No. 03—1001
(Tex. Sup. Ct. June 17, 2005)—Court charged jury with
an instruction that tracked the Texas Securities Act
(“TSA”). Supreme Court held that the instruction failed
to inform the jury that aiding and abetting liability
under the TSA requires that the aider must be subjectively
aware of the primary violator’s improper activity.
b. Arthur Andersen LLP v. United States, 125 S.Ct. 2129,
2135—36 (2005)—U.S. Supreme Court reverses conviction
based upon faulty definition of knowing contained
in the jury instructions.
C. Pretrial Motions
1. Be sure that pretrial motions have been timely made and
ruled upon if applicable.
2. There may be several outstanding, including motions
related to:
a. Personal jurisdiction
b. Subject matter jurisdiction
c. Motions to strike or modify the pleadings
d. Joinder of parties and/or claims
e. Provisional remedies such as injunctions
f. Motions to dismiss (federal)
g. Motions for summary judgment
D. Motions in Limine
1. Motions in limine permit a party to identify, before trial,
certain evidentiary rulings that the court may be asked to
make.
2. Motions in limine nominally prevent opposing counsel
from introducing prejudicial evidence in front of the jury.
Can be overused and formulaic.
3. No federal or Texas rule govern motions in limine.
a. Check local rules and court’s scheduling order for
deadline to file.
Generally, motions in limine should be filed and ruled
upon at the pretrial conference and before voir dire.
b. Motions in limine should be in writing and served on
all parties.
4. Remember that the trial court’s ruling on a motion in
limine is not a ruling that admits or excludes evidence—it
merely prevents a party from raising an issue or offering
evidence without first approaching the bench for a ruling.
If you want a pretrial ruling that actually excludes evidence,
you should file a motion to exclude.
5. Common topics for motions in limine:
a. The fact that settlement discussions have or have not
taken place or that settlement offers have or have not
been made.
b. The fact that the motion in limine has been filed or
that the parties have sought to exclude evidence offered.
c. The fact that the plaintiff ’s attorneys have a contingency
fee agreement.
d. The size or geographic location of the parties’ law
firms.
e. Any attempts to elicit privileged testimony.
f. Any attempts in the presence of the jury to ask a
party’s attorney to produce documents, stipulate to any
fact, or make any argument.
g. Any testimony by a party’s expert concerning his or
her discussions with another expert.
h. Any evidence that a party’s expert was represented by
the party’s counsel in a post lawsuit.
i. Any mention of a witness’s financial status when not
relevant to the case.
j. Any comment by the adverse party’s attorney that
informs the jury of its effects of its answers to the questions
in the charge.
k. Any mention that the party is/was involved in other
lawsuits or legal disputes.
I. Any mention from the adverse party’s attorney
regarding his or her personal opinion about the credibility
of a witness.
m. Any comment that attempts to impose liability upon
or arouse prejudice against a party simply because the
party is a corporation.
n. Any comment or reference to a defendant corporation
as “foreign” or “alien” or any similar comment that
may draw upon the prejudices of the jury toward defendant
corporation’s home country.
o. Any comment to the jury that the court can reduce
the amount of the jury’s award.
p. Any comment regarding who pays the damages, or
whether defendant will pay the damages.
q. Any mention that the defendant is covered by liability
insurance.
6. Before filing a motion in limine, be sure to review the
rules of evidence that govern exclusion of evidence. Any
evidence that the rules classify as inadmissible may be
made the subject of a motion in limine.
E. Trial Briefs
1. Permitted by most courts, but not overly utilized.
2. Brevity and clarity are important, so the issues discussed
in each brief should be narrowly tailored.
3. On smaller trial teams, it might be helpful to outline
these issues before the trial begins.
4. Reviewing any motion for summary judgment filed in
the case (or the related response) could provide good fodder
for trial briefs.
5. Statement of Facts may be included but not necessary.
6. Arguments should be supported by authorities and subdivided
into logical headings if possible.
F. Opening Statement
1. Keep it chronological, if possible.
2. Keep it simple and relatively high level, except for the
crucial facts (and not every fact is crucial). The jury doesn’t
have the background to understand extensive detail.
3. Develop around three themes that you will return to
throughout trial.
4. Write it out, so you can solicit input from your client,
and other trial team members.
5. Find out how much time you have, and time yourself.
6. Prepare to use a PowerPoint presentation that includes
simple diagrams, charts and bullet points you wish to
make. If you have great documents that speak for themselves,
and that have already been admitted, use them.
G. Stipulations Before Trial
1. Any fact may be stipulated between the parties.
a. Can be used to avoid cumbersome and/or boring testimony
during trial.
b. Can be used to focus and streamline the testimony of
witnesses.
2. Other stipulations may be made between the parties.
a. Authentication of evidence
b. Accuracy and/or admissibility of exhibits
c. Claims that have been dropped following discovery
d. Amount of special damages
e. Others
3. Stipulations may be read into the record or may be written.
4. Stipulations may be incorporated into the pretrial order
signed by the judge.
H. The Pretrial Order
1. Federal Court
a. It may also be helpful to contact the judge’s chambers
to determine if he or she has a preferred format for the
pretrial order. Be sure to ask if the Court wants the document
on a disk—and in what format on that disk.
b. Common elements in a pretrial order are:
i. A succinct statement of the basis of jurisdiction
and venue and whether these issues are in dispute.
ii. Whether a jury trial has been demanded.
iii. Whether there are any requested amendments
to
pleadings, dismissals of the case as to unserved parties,
additions or substitutions of parties, or disposition
as to defaulting parties. (Proposals should be
included)
iv. The elements of monetary damages claimed by
each party and the kind and general terms of any
other type of relief requested by any party.
v. A plain concise statement of the undisputed facts
(separately numbered)
vi. Plaintiffs assertion of disputed facts
vii. Defendant’s assertion of disputed facts
viii. Issues of law that are expected to be in controversy
ix. A listing of previous substantive motions
x. Witness list
(a) Include experts
(b) Include deposition witnesses
(c) Does not necessarily include impeachment or
rebuttal witnesses on the list
xi. Any stipulations relating to the nature or number
of experts to be called by either side
xii. Exhibit list
(a) List all exhibits stipulated to be
admissible/joint exhibits
(b) List plaintiffs proposed additional exhibits
(c) List defendant’s proposed additional exhibits
xiii. Trial date, estimate of trial time
xiv. Proposed voir dire examination questions
xv. Requests for jury instructions
xvi. Any other appropriate matters that will aid in the
disposition of the action
c. Generally, a pretrial order will not be changed except
upon further order of the court.
i. Courts can regard the information in the pretrial
order as replacing the allegations—and the claims—
in the pleadings. If you forget something, it may be
gone.
ii. The legal standard generally applied to applications
to modify the pretrial order is whether the
change is needed to prevent “manifest injustice.”
Bettes v. Stonewall Ins. Co., 480 F.2d 92,93 (5th Cir.
1973).
iii. Several factors should be considered for modification:
(a) the degree of prejudice that will occur if the
order is not modified
(b) the prejudice to the opponent if modified
(c) the extent of the delay
(d) the effect of the amendment on the schedule
for the trial or continuation of the proceedings
(e) availability of other remedial measures to
lessen the impact of the change.
d. The pretrial order is not binding until it is signed by
the court.
e. Courts want this filing to be joint, and typically the
plaintiff has the responsibility to assemble the document
and get it on file in a timely fashion. If a party does not
meet with its obligations, the other parties should document
this and note that failure in the pretrial order that
does end up on file. That said, the parties should really
strive to make this work.
2. State Court
a. In state court, these orders may not be required.
b. The pretrial order must recite the actions taken and
the rulings made at the pretrial conference.
c. In most cases, the pretrial order includes:
i. the actions taken at the pretrial conference
ii. the pleadings that can be amended and the deadline
to amend
iii. any agreements made by the parties
iv. whether the case will be tried to the court or to a
jury.
d. The pretrial order controls the procedure for the case.
Neither the court nor the parties can disregard the pretrial
order.
e. The court may modify the pretrial order to prevent
“manifest injustice.” Trevino v. Trevino, 64 S.W.3d 166,
170 (Tex. App. San Antonio 2001, no pet.).
f. Modification must be done in writing or on the
record. Susanoil, Inc. v. Continental Oil Co., 516 S.W.2d
260,264 (Tex. App.—San Antonio 1973, writ ref d n.r.e.).
I. Authentification of Business Records (Texas)
a. The rules of evidence allow for self—authentification
of certain evidence.
b. Business Records may be self—authenticated by the
filing of an affidavit pursuant to TRE 902(10).
c. Other documents may be authenticated through witness
testimony.
J. Voluminous Records pursuant to TRE 1006 and FRE 1006
1. The contents of voluminous writing, recordings, or photographs,
otherwise admissible, which cannot conveniently
be examined in court may be presented in the form of a
chart, summary, or calculation.
2. The originals, or duplicates, shall be made available for
examination or copying, or both, by other parties at a reasonable
time and place.
3. The records must be available to the opponent for a reasonable
opportunity to afford inspection and cross—examination.
Duncan Dev., Inc. v. Haney, 634 S.W.2d 811, 812—13
(Tex. 1982).
4. The supporting documents must themselves be admissible
in evidence. Id.
5. The court may order that they be produced.
K. Trial Subpoenas
1. Directs person to attend proceedings as a witness
2. Governed by FRCP 45:
a. Required contents of a subpoena
b. Service requirements
c. Protection of persons subject to subpoenas
d. Duties in responding
e. Contempt if disobeyed without adequate excuse
3. FRCP 45(a)(2)—“A subpoena commanding attendance
at trial or hearing shall issue from the court for the district
in which the hearing or trial is to be held.”
4. FRCP 451b)(2)—“a subpoena may be served at any place
within the district of the court by which it is issued, or at
any p1ace without the district that is within 100 miles of the
place of the deposition, hearing, trial production, or
inspection specified in the subpoena or at any place within
the state where a state statute or rule of court permits service
of a subpoena issued by a state court of general jurisdiction
sitting in the place of the deposition, hearing, trial,
production, or inspection specified in the subpoena. When
a statute of the United States provides therefor, the court
upon proper application and cause shown may authorize
the service of a subpoena at any other place.”
5. FRCP 45(b )(2) also indicates that a subpoena directed to
a witness in a foreign country should be issued pursuant to
the manner prescribed in 28 U.S.C. § 1783.
a. Check Local Rules—Some courts provide forms for
trial subpoenas and subpoenas for documents. Always
check the local rules and forms.
VI. PRETRIAL CONFERENCES
A. There may be one or more pretrial or status conferences
before trial (depends largely on court and judge). Pretrial conferences
are used by courts to monitor discovery, progress
being made in the case, and other activities. The majority of
these conferences will be very brief, particularly early on in the
case. A final pretrial conference is usually held shortly before
trial (or on the eve of trial). The items discussed at that conference
may include:
1. Substance of the pretrial order may be discussed,
2. Court will usually review the mechanics of the trial,
3. Time for the start of the trial,
4. Estimates concerning the duration of the trial and other
timing issues,
5. Stipulations as to facts and issues,
6. Witness issues, particularly the availability of third party
witnesses,
7. Evidentiary dispute, and
8. Jury instructions/questions.
B. Particular Rules/Procedures in Federal Courts
1. The Pretrial Conference — FRCP 16
a. “Any final pretrial conference shall be held as close to
the time of trial as reasonable under the circumstances.
The participants at any such conference shall formulate
a plan for trial, including a program for facilitating the
admission of evidence. The conference shall be attended
by at least one of the attorneys who will conduct the
trial for each of the parties and by any unrepresented
parties.” FRCP 16(d).
b. “After any conference held pursuant to this rule, an
order shall be entered reciting the action taken. This
order shall control the subsequent course of the action
unless modified by a subsequent order. The order following
a final pretrial conference shall be modified only
to prevent manifest injustice.” FRCP 16(e).
c. The court will usually schedule the pretrial conference
on its own.
i. A party can request a pretrial conference by filing
a motion stating its reasons for requesting the conference.
ii. A conference cannot be waived by consent of the
parties.
d. The court can require the parties and/or their lawyers
to attend a pretrial conference. FRCP 16(a); Lucien v.
Breweur, 9 F.3d 26, 28 (7th Ci 1993).
i. Lawyers who attend must have the authority to
enter into stipulations and make admissions regarding
all matters in the case. FRCP 16( c); Ergo ScL, Inc.
v. Martin, 73 F.3d 595 598 n.4 (5th Cir. 1996).
ii. The conference may be held by telephone, by mail,
in the judge’s chambers, or in the courtroom. Lucien,
9 F.3d at 28.
e. Scope of the Pretrial Conference—FRCP 16(c) lists
matters the district court can consider during the course
of the pretrial conference. Issues commonly considered
are:
i. Simplification of issues—attorneys must make a
full and fair disclosure of their views on what the real
issues of the trial will be. Some local rules require the
parties to provide a statement of issues.
ii. Pleading amendments
iii. Stipulation and admissions
iv. Limitations on evidence and expert testimony
v. Non trial disposition—settlement/summary judgment.
lf your client is not interested in settlement,
inform the court before the entry of a court order on
pretrial settlement conferences—the district court
cannot coerce an offer or settlement. However, sanctions
may be awarded against the attorney or party
who violates a court order regarding mediation
and/or settlement.
vi. Discovery
vii. Witness list—court may order the parties to
exchange a list of witnesses or potential witnesses
viii. Exhibits and objections
ix. Pretrial briefs
x. Trial date and schedule
xi. Advisability of referring certain issues to a magistrate
xii. Resolve pending motions
xiii. Special rules for complex trials
xiv. Separate trials
xv. Resolution of limited issues
xvi. Order of interrogation and length of trial
xvii. Any other matters that will facilitate the just,
speedy and inexpensive disposition of the action
2. District courts vary widely in how they use FR.CP 16/pretrial
conferences.
a. Many districts and individual judges within districts
have adopted local rules, instructions, or informal practices
with respect to how they handle pretrial conferences.
b. Counsel must comply with FRCP 16 and the court’s
local rules and practices.
3. Final Pretrial Disclosures are due at least 30 days before
trial, unless the evidence is to be used only for impeachment
purposes. FRCP 26(a)(3).
a. The parties must disclose:
i. the name, address, and telephone number of each
person the party expects to call as a witness, separately
from those the party may call as a witness if the need arises.
ii. the designation of witnesses whose testimony is
expected to be provided by deposition and deposition
excerpts.
iii. An appropriate identification of each document
or exhibit, including summaries.
iv. Always check local rules to see if any additional
documents or items are required to be disclosed.
v. Objections to the opposing party’s pretrial disclosures
must be filed within 14 days after the disclosures
are made, unless otherwise directed by the
court. FRCP 26(a)(3).
vi. Failure to file pre—trial disclosures:
(a) Opposing party may move to compel disclosure
and seek sanctions for nondisclosure.
(b) Nondisclosure of expert witnesses may result
in their exclusion from testimony at trial.
C. Particular Rules/Procedures in Texas Courts
1. TRCP 166—gives trial judges the power to control pretrial
matters and assist in settling cases.
2. Purpose of pretrial conference in state court roughly
same as that in federal court—i.e., to narrow the issues and
aid in the final disposition of the case.
3. Texas courts may establish a pretrial calendar “by rule.”
TRCP 166.
4. Always check the local rules for automatic deadlines for
motions, pleadings, discovery, etc.
5. A pretrial conference may be scheduled by the court or
by motion of the parties.
a. To request a pretrial conference, the party should file
a motion stating the reasons for the request.
b. A party cannot force the trial court to conduct a conference—it is purely discretionary. Taiwan Shrimp Farm
Village Ass’n v. U.S.A. Shrimp Fann Dev., 915 S.W.2d 61,
69 (Tex. App.—Corpus Christi 1996, writ denied).
6. Scope of the Conference
a. TRCP 166 — court may consider any matter that may
aid in the disposition of the action
b. The trial setting is commonly made in the pretrial
order.
c. The court may set deadlines for pleadings that supersede
the deadlines in TRCP 63.
d. The court may set discovery deadlines.
e. The court may require the parties to argue pending
motions.
f. The court may required the parties to confer and file a
joint pretrial status report.
g. The court may require the parties to attempt to narrow
issues of fact and law.
h. The court may require the parties to exchange information
about experts, witnesses, and exhibits.
i. The court may require the parties to prepare proposed
jury questions and instructions.
j. The court may encourage the parties to settle.
7. The pretrial conference may be held by telephone, by
mail, in the judge’s chambers, or in the courtroom.
Koslow’s v. Mackie, 796 S.W.2d 700, 703 (Tex. 1990). The
court can compel attendance at the pretrial hearing.
8. Objections made at the pretrial conference usually do
not preserve error at trial. Clark v. Trailways, Inc., 774
S.W.2d 644, 648 n.2 (Tex. 1989). A party should always
renew the objection at trial.
9. Unless modified at the pretrial conference, pretrial disclosure
obligations are governed by TRCP 194.
a. TRCP 194.2—Lists categories of information which
must be disclosed:
a. correct name of the parties
b. contact information for potential parties
c. legal theories and factual bases of claims/defenses
d. economic damages information
e. persons with knowledge of relevant facts, and a brief
statement of theft connection with the case
f. expert disclosures
g. medical records and bills (if applicable)
h. A party may supplement its discovery responses as
late as 30 days before trial TRCP 193.5(b).
i. A witness not timely identified in the disclosures may
be excluded from testifying at trial. TRCP 193.6(a).
VII. THE FINAL BENCH CONFERENCE BEFORE TRIAL
A. Usually occurs just before the prospective jurors are
brought in and the case begins.
B. Good time to remind the court of any particularly important
or sensitive issues previously discussed or ruled upon.
C. Also a good time to alert the court of any last minute
scheduling changes or problems.
D. Motions may be renewed at the bench one final time.
B. Many judges will ask for a preview of the expected course of
the day of trial at this time.
VIII. CONCLUSION
This paper has focused on the preparations for the last ninety
days before the trial begins. It is a truly hectic time, but some
preparation and guidance, you will be successful. Good luck.
Author’s Note:
This paper is based in very large part on two prior works: one by
Charles Schwartz of Skadden, Arps, Slate, Meagher & Flom LLP,
and one by Steve Susman of Susman Godfrey. Using their papers as
a guide, putting this one together was a snap. My thanks to both for
that guidance and assistance.
Mr. Chaumette is an attorney with the Houston firm of Shook,
Hardy & Bacon LLP.
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