Attendance and Authority

Rule 16(c)(1) governs who must come to a pretrial conference and what they must be able to do once there.¹ Its first sentence requires a represented party to authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at the conference. Its second sentence lets the court, if appropriate, require a party or its representative to be present or reasonably available by other means to consider possible settlement.² The settlement sentence belongs with the settlement material later in this chapter, so this section takes up the first. Authority is worth nothing unless counsel arrive and come ready to work, and so attendance comes first.

Compulsory Attendance and Preparation

Once the court has called a pretrial conference, the attorneys must attend.³ The judge decides whether to call a conference; after the order issues, the lawyers have no comparable choice, because a direction to appear binds them like any other order. Rule 16(f) confirms the point by authorizing sanctions when a party or its attorney fails to appear at a scheduling or other pretrial conference.⁴ The compulsion makes sense given what a conference is for. A meeting any lawyer could skip would reach only the lawyers willing to come, and the lawyer with the most reason to resist narrowing the case or accepting a timetable would be the likeliest to stay home.

Attendance alone does not make a conference useful, so the court may also require preparation, usually including a special pretrial-conference memorandum filed in advance.⁵ The procedure for a particular conference is largely within the judge’s discretion, and local court rules often supply the details, so the contents and timing of a memorandum vary from court to court.⁶ A memorandum forces counsel to think through the case before arriving and gives the judge a written starting point, so the meeting is spent on the real disputes. Rule 16(f) reaches this expectation as well. The rule originally spoke only of directing the attorneys to appear; it now also authorizes sanctions when a party appears but is substantially unprepared to participate or does not participate in good faith.⁷

Presence answers the order to appear; it does not show that the lawyer came ready to take part in good faith. Sanctions can scale with the lapse. They run from costs assessed against a party who is late filing a memorandum to default or dismissal for failure to prosecute in the event of complete nonattendance, failure to file a required memorandum, or failure to obey the pretrial order.⁸ Rule 16(f) separately reaches a party or attorney who fails to obey a scheduling or other pretrial order.⁹ The sanctions material later in this chapter develops these grounds and their limits.

Authority to Stipulate

Attendance and preparation set the stage; the first sentence of Rule 16(c)(1) says what the prepared lawyer must be able to do once the conference begins. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion.¹¹ A stipulation is an agreement between the parties that a fact is undisputed, or on the conditions for admitting evidence such as a document’s authenticity or an expert’s qualifications, and it leaves less for the trial to decide.¹² An admission concedes a point the other side would otherwise have to prove.¹³ Each narrows the proof, and each helps at the conference only if the lawyer who offers or accepts it can bind the client on the spot. Because only the client can give counsel that power, the rule puts the duty on the party. Because the sentence concerns what counsel can do, it does not by itself require the client to come; party presence falls under the second sentence, taken up with settlement later.

Authority in the room matters for a mechanical reason. When counsel must answer each proposal with a promise to check with the client, the meeting only postpones the work it was called to do, and a judge who built a timetable around it finds the issues no narrower than before. Authority at the table makes the conference the place where agreements are made, and it lets the judge plan the trial around them.

The phrase “matters that can reasonably be anticipated for discussion” sets the measure of that authority, and the agenda in Rule 16(c)(2) shows what is reasonably anticipated. The court may take up formulating and simplifying the issues, amending the pleadings, obtaining admissions and stipulations about facts and documents, and controlling and scheduling discovery, among other items.¹⁴ Discovery is a topic the rules have since elaborated: amendments in 2006 and 2015 emphasized the discovery and preservation of electronically stored information, agreements on privilege and work-product protection, and the handling of discovery disputes.¹⁵ Counsel should expect a discovery discussion to touch those subjects. Authority confined to a single topic, such as the authenticity of documents, would leave counsel stranded when the judge asks about an amendment or a discovery deadline. The word reasonably keeps the duty workable, because a party cannot be expected to authorize concessions on a subject no one could have foreseen.

The rule asks for at least one authorized attorney, so a firm may send a team and need not empower every member. The text says nothing more about who that lawyer must be, but courts commonly fill the gap: many require the attorneys who will present the case at trial, or at least one who knows the case and has full power to make admissions of fact and enter into stipulations.¹⁶ The federal rules themselves require an attorney who will conduct the trial to attend the final pretrial conference, when a trial plan is formulated, a point taken up when that conference is reached.¹⁷ The preference for trial counsel follows from how the agreements are used. The lawyer who will carry the case into the courtroom knows which facts will really be contested, while a substitute may lack that knowledge. Some courts also require someone at the conference who has settlement authority, a different power from authority to stipulate.¹⁸

The failure in that scene belongs to the client, who did not equip counsel, which is why the rule addresses the party and not only the lawyer.

The authority the rule demands is a power to agree, and it imposes no obligation to agree. The rule lists obtaining admissions and stipulations about facts and documents among the matters the court may consider, so stipulation is something the conference explores and cannot compel.¹⁹ Federal judges may require the attendance and good-faith participation of lawyers and parties, but they lack authority to require stipulations to facts or the settlement of claims.²⁰ A party remains entitled to try the facts it genuinely disputes. Judge Clark, the father of the Federal Rules, described pretrial as a way to acquaint the parties and the court with the issues, uncover points of agreement, and shorten and simplify trial, not “to club the parties . . . into submission.”²¹ Counsel who arrives with full authority and declines to stipulate to a fact the client genuinely disputes has therefore violated nothing, a line the limits section later in this chapter develops.