Purposes of Pretrial Conferences

Judicial Management Before Trial

Purposes of Pretrial Conferences

In any federal action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences “for such purposes as” Rule 16(a) goes on to list.¹ The phrasing makes the list illustrative, not closed. The conference itself is a meeting of the attorneys, sometimes the parties, with a trial judge or a magistrate judge who holds certain judicial powers, and its job is to focus the controversy before trial.²

The operative verb is may. A federal judge may order a conference on the court’s own motion or at a party’s request, and no party can compel one.³ Many states go the other way: some require the court to hold a conference whenever a party demands it, and some local rules require one in every case. Mandatory use has generally been rejected, because a conference wastes time in a simple case and the procedure will not work unless the judge believes it will be useful.⁴

The rule also says “one or more,” and the court may call several conferences as the case requires. In highly complex litigation several may be appropriate.⁵ A first conference often comes before discovery, to settle preliminary matters and to set deadlines for later stages such as preliminary motions, disclosure, document production, depositions, summary-judgment motions, and amendment of the pleadings.⁶ A conference at that point helps frame the issues and keeps the cost of discovery in check.⁷

The second scene needed no one’s permission, and the first scene shows why a bar examiner would test the opposite. A lawyer who insists on a conference as of right in federal court is mistaken, because the judge decides and a request only invites the decision.

The rule gives judges this much initiative because the older model gave them almost none. Under the traditional model, still followed to a degree in many state courts, the court plays a largely passive role: the parties file the pleadings, conduct discovery, open settlement talks, and seek trial when they are ready, and no judge reviews pending cases on any schedule.⁸ The volume of litigation has pushed federal judges away from that hands-off stance. They now monitor discovery and disclosure, limit the issues at pretrial conferences, and set deadlines for discovery and trial.⁹

The shape of modern litigation made the passive judge impractical. Expanded joinder of parties and claims, virtually unlimited discovery, less informative pleadings, and increasingly complex and protracted cases created a need for greater judicial intervention to focus controversies before trial.¹⁰ The conference is where that focusing happens. After discovery, lawyers talking informally with the judge can agree on what is actually in dispute, and they can plan the trial because they know what evidence and witnesses they intend to introduce.¹¹

The device is not old. The pretrial conference was unknown at common law; it began in 1929 in Wayne County, Michigan, as a way to relieve an extremely congested court calendar, and it entered the federal rules in 1938 as Rule 16.¹² Until 1983 the federal rule reached only the eve of trial, where conferences clarified the major issues to be tried. Because only a small number of cases ever reach trial, that power gave courts little control over the major part of litigation.¹³ The 1983 rewrite retitled the rule from “Pre-Trial Procedure, Formulating Issues” to “Pretrial Conferences; Scheduling; Management.” It encouraged judges to use conferences to schedule the whole pretrial process, including pleading amendments, discovery, and motions, and to keep apprised of the attorneys’ progress.¹⁴ Amendments in 1987, 1993, 2006, 2007, and 2015 have followed.¹⁵

The 1983 revision also gave the judge a tool that does not depend on a meeting. Rule 16(b) calls for a scheduling order, which encourages the court to become involved in case management early, but it does not require a pretrial conference.¹⁶ The scheduling order is the management device a judge generally cannot skip, and the next section takes it up.

Rule 16(a) turns the managerial idea into five named purposes:

• Expediting disposition of the action.¹⁷
• Establishing early and continuing control so that the case will not be protracted because of lack of management.¹⁸
• Discouraging wasteful pretrial activities.¹⁹
• Improving the quality of the trial through more thorough preparation.²⁰
• Facilitating settlement.²¹

The second and third purposes answer the passive-judge problem most directly, and they carry particular weight in discovery. A judge who takes control early and keeps it stops the case from drifting for want of management, and a judge who discourages wasteful pretrial activity keeps the cost of discovery down.²²

The fourth purpose is best served late in the case. A conference held after discovery is essentially complete and shortly before trial comes at the moment when each side should be thoroughly familiar with its strengths and weaknesses and know which issues and facts it will contest and which it will concede.²³

Settlement is the purpose the rule has pushed hardest. As amended in 1983 and 1993, Rule 16 emphasizes settlement as a goal, directly or through alternative dispute resolution, in order to relieve crowded court calendars and the costs of trial.²⁴ Commentators warn that settlement outcomes are susceptible to non-merits factors, including judicial coercion that may rest on a court’s limited knowledge of the facts, and studies of whether pretrial procedures actually reduce delay and cost are inconclusive.²⁵ The rule’s own verb is facilitating, and the later section on limits on judicial authority asks how far a judge may go beyond that.

No single meeting has to pursue all five purposes. An early conference leans toward control and scheduling, while a final conference leans toward trial preparation and settlement.