Prepare objections to your opponents’ witnesses or exhibits.If counsel agree to the Final Pretrial Stipulation, hand-deliver the original to all counsel for their signatures. 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.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. Always volunteer to draft the Final Pretrial Stipulation.You are not required to disclose rebuttal witnesses. Any attempt to add new witnesses afterwards normally will be denied by the court. Make sure, too, that your list is complete. As with exhibits, insist on a complete list from opposing counsel. The final pretrial stipulation is designed to pin down a final witness list.Insist on actually seeing these materials and seek court enforcement of disclosure deadlines to make sure you are not surprised at trial. Often, counsel is unprepared to exchange “trial ready” exhibits and demonstrative evidence before the pretrial conference.Avoid those areas or limit your discussion of them during the conference. Make a list of the areas about which you have information and opposing counsel does not.
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To avoid revealing too much, review your proof outline, your trial plan, and your FRCP 26(a) disclosures. The stipulation process requires cooperation with opposing counsel, but it does not require you to divulge your trial strategy.This is a trial preparation exercise, for your benefit and your eyes only. Caution: Do not show this draft to opposing counsel. It helps you to see the case as a whole, before trial, and reduces the chance of omissions or mistakes later. 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. Prepare a complete draft of the entire Final Pretrial Stipulation – including your opposing counsel’s parts – before the pretrial planning conference.These can be helpful in identifying potential grounds for stipulations. Review the answers to the Requests for Admissions and Interrogatories propounded to the opposing party.Many district courts have created a form or sample documents to use in creating the final pretrial stipulation. Review FRCP 16(c)(2)(A)-(P), which lists specific matters to be considered at the pretrial conference.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.Īccomplished 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
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Often, though, as the trial date looms, attorneys fail to take full advantage of this opportunity. 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. Take Advantage of the Pretrial Planning Conference
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