Matters for Consideration

Matters for Consideration

Rule 16(c)(2) hands the judge an agenda. At any pretrial conference, the court "may consider and take appropriate action on the following matters," and a long list of topics follows.¹ The earlier sections asked who must come to a conference and what authority they must bring. This section asks what those people may do once the meeting begins.

The operative word is may. The same word decides whether a conference is held at all, because Rule 16(a) permits but does not require the court to order lawyers to appear,² and it governs every topic on the list. No topic is compulsory, so a judge raises as many or as few as the case demands, and no single conference need touch them all. The rule also pairs two verbs: the court may consider a matter and may take appropriate action on it, which lets the judge decide and direct as well as listen.³ A broad, permissive list suits the variety of cases that reach federal court. A simple two-party dispute needs a few topics at most, and a long fixed agenda would spend everyone's time on matters the case never presents. A sprawling action with many parties and hard proof problems needs several tools at once, and a short agenda would leave the judge without authority to use them.

A question that treats a listed topic as mandatory is therefore testing the verb. The list authorizes; the judge chooses.

The topics look miscellaneous, running from formulating the issues to limiting the time allowed to present evidence, yet one aim runs through them. Each helps pare the litigation down to the issues, claims, and defenses truly in dispute, so that the court wastes no time on matters better suited to dismissal, settlement, or summary judgment.⁴ The aim echoes two purposes that Rule 16(a) names: early and continuing control of the case, and discouragement of wasteful pretrial activity.⁵ It also explains the order of what follows. Issues and pleadings come first because liberal pleading leaves a complaint saying little about what the parties will actually fight over.⁶ Evidence and admissions, discovery and motions, trial planning, and complex cases come next. Settlement appears on the list as well, but the limits on the judge's role in it are sharp enough that it receives its own section later in this chapter.

Narrowing Issues and Pleadings

Two topics on the list work as a pair. The court may consider and take appropriate action on "formulating and simplifying the issues, and eliminating frivolous claims or defenses,"⁷ and on "amending the pleadings if necessary or desirable."⁸ The first reaches the substance of the case: which claims and defenses remain alive and what questions of fact and law they present. The second reaches the documents that state those claims and lets the court see that the pleadings match the case as it now stands. Together they make the dispute both smaller and more accurate.

The conference carries this work because the pleadings cannot. Liberal pleading requirements let a complaint plead several theories and an answer assert several defenses without either side committing to the evidence behind them, so the pleadings alone do not reveal what will actually be tried. That is why the pretrial conference has become the mechanism by which a case crystallizes and takes structure. Discovery supplies the missing information, and once it is complete, counsel talking informally with the judge can agree on which issues are in dispute and plan the trial around the witnesses and evidence each side really intends to use.⁹ The conference converts what the lawyers have learned into a shorter list of issues, and that list is what the court will manage and the factfinder will decide. A shorter list also saves effort directly. A claim that no one still presses would otherwise keep costing something, as witnesses are prepared, exhibits copied, and jurors instructed on a question nobody contests.

Timing explains why this work comes late. A conference held before discovery can help frame the issues and keep the cost of discovery in check. One held after discovery is essentially complete is the logical point for the final cut, because each side then knows the strengths and weaknesses of its case and which issues and facts it will contest and which it will concede.¹⁰ The parties can then either settle on an informed basis or narrow the trial to what is genuinely disputed.

Each half of the first topic has its own job. Formulating and simplifying the issues means identifying the points genuinely contested and setting aside the rest, and conferences are used to define the issues and facts in contention and to weed out extraneous issues.¹¹ Eliminating frivolous claims or defenses removes positions with no basis at all. Simplifying also catches positions that once had a basis and that no one now intends to pursue, which is the usual result when counsel, after discovery, agree on what is really in dispute.¹² At this stage the judge sees the case only through counsel's descriptions, so the lawyers' candor about what remains viable supplies the raw material for both jobs.

The scene shows both topics working in sequence. Simplifying the issues removed the two abandoned claims, and amending the pleadings made the complaint say what the case now is, so that anyone who later reads the file finds three live claims and not five. The amendment topic is flexible because its test is whether amendment is "necessary or desirable," which lets the court cure a real defect or simply make the pleadings fit the case.¹³ Amendment can subtract, as it did here, or restate a position that the discovery record has changed. A party's own request to add a claim late is a different matter. Scheduling conferences commonly fix a deadline for amending the pleadings,¹⁴ and once the court has set one, a schedule may be modified only for good cause and with the judge's consent.¹⁵

The limit on all of this is that narrowing removes what is baseless or abandoned and leaves in place what the parties genuinely dispute. A judge who hears counsel describe conflicting witness accounts and then announces which witness is more believable has gone past the first topic. The conference is a conversation between lawyers and judge, not a trial, and the judge has no power to determine issues of fact there.¹⁶ A party that disputes a fact remains entitled to try it.¹⁷

The rule lists summary adjudication as its own topic, and the topics as a group share a commitment to focusing the case on matters truly in dispute while sending the rest toward dismissal, settlement, or summary judgment.¹⁸ A claim like the buyer's can end before trial by summary adjudication only when no triable issue remains.¹⁹ That is the line separating the two scenes above. The plaintiff's two abandoned claims left the case by concession, while the buyer's claim could not leave on the judge's choice between two witnesses.

Whatever issues survive the conference carry forward. The final pretrial conference covers defining the issues in dispute, and the final pretrial order that follows resolves questions of trial procedure and sets the stage for presenting the case.²⁰ A pretrial order measures the dimensions of the lawsuit, in the trial court and on appeal, and it may be modified "only to prevent manifest injustice," with the burden on the party seeking the change.²¹ A claim or defense dropped at the conference or left out of the order is therefore hard to revive, and counsel who stay silent while the issues are formulated risk losing positions they meant to keep. Later sections take up the order's contents and the manifest-injustice standard in detail.

Evidence and Admissions

Two connected topics on the list concern proof. The court may consider and take appropriate action on "obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence,"²³ and on "avoiding unnecessary proof and cumulative evidence, and limiting the use of testimony under Federal Rule of Evidence 702,"²⁴ the evidence rule governing expert testimony. Both belong to the permissive menu, so a judge raises them when the case calls for it. They share one aim, which is to reduce the proof the trial must absorb, and the most direct way to reduce it is for the parties to agree on what no one genuinely contests.

A trial exists to resolve the facts the parties actually dispute. Proof of an uncontested matter, such as the genuineness of a signed contract or the qualifications of an expert, consumes courtroom time and leaves the decision no better informed. A stipulation, meaning the parties' agreement that a fact is undisputed, leaves less to be tried and may shorten the trial. So does agreement on the conditions for admitting evidence, such as an expert's qualification to testify or a document's authenticity.²⁵

Authenticity shows the point well. Showing that a document is what its proponent says it is can require formal proof, and formal proof of authenticity may prove troublesome, time consuming, and expensive even where no legitimate doubt about genuineness appears to exist.²⁶ A stipulation to authenticity removes the need for that proof, so the proponent no longer has to call a foundation witness, someone who can vouch for the document, to get it in.

A conference held after discovery is a natural place to seek that agreement, because each side then knows which facts it will contest and which it is willing to concede.²⁷ A formal route also exists. Under Rules 36 and 37(c)(2), a party may serve a written request that the adversary admit the genuineness of a described document. If the adversary unreasonably fails to answer or object within the time allowed, genuineness is admitted. If the adversary denies genuineness and the requesting party then proves it at trial, the requesting party may apply for an order requiring the adversary to pay the reasonable costs of making that proof.²⁸ The conference adds a judge to the room, and the cost consequence of a groundless denial gives lawyers reason to concede what they cannot honestly dispute.

The second half of the first topic lets the court rule in advance on the admissibility of evidence.²⁹ Conferences are used for exactly that, along with eliminating unnecessary items of proof, determining the authenticity of documents, and requiring lists of the documents and witnesses each side will present.³⁰ Deciding early matters because lawyers prepare differently once they know what the jury will see. A ruling made before trial reduces surprise and lets counsel build the presentation around the issues truly contested. A lawyer told that an exhibit will be excluded can stop planning the trial around it, and an opponent told that it will come in can stop preparing to fight it.

The next topic applies the same aim to the proof that remains after the agreements are made.³¹ Unnecessary proof is proof of a matter no one disputes, and cumulative evidence is additional proof of a point that other evidence already establishes, so each uses time without adding to what the factfinder knows. The conference can reach both because the court may require lists of the documents and witnesses each side plans to present, and the lists let the judge see the overlap before trial begins.³² The reference to Rule 702 extends the same limiting power to expert testimony: two experts asked to say the same thing, for example, add cost without adding information.

None of this compels agreement. The court may press for stipulations and may rule in advance on admissibility, but it cannot force a party to stipulate to facts it genuinely disputes. The purpose of the process is to acquaint the parties and the court with the issues and to uncover points of agreement, not to club the parties into submission.³³ A party keeps its right to try the facts it disputes.³⁴

A genuinely disputed question of authenticity therefore stays alive for trial, while an undisputed one drops out by agreement or by advance ruling. The same line governs cumulative evidence: the court trims repetition and leaves a party's only proof on a contested point in place. The earlier section on authority to stipulate completes the picture. Counsel at the conference must be able to agree on the party's behalf, but a party's refusal to agree on a point it genuinely disputes remains its own to make. A later section on the limits of judicial authority develops this boundary in full.

Discovery and Motions

The court may consider and take appropriate action on "controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37."³⁶ That language reaches the whole fact-gathering phase, from the disclosures parties owe without being asked to the depositions, written questions, and document requests that follow. The topic sits on the same permissive menu as every other, so a judge takes it up when the case calls for it. The reason to do so is cost. A conference held before discovery helps keep the cost of discovery in check,³⁷ and a judge who shapes the sequence, timing, and extent of discovery while the case is young sets limits before the money has been spent.

The conference does not start from a blank page. Before it, the parties meet and confer under Rule 26(f), a requirement that brings electronic discovery issues to the surface early so that expensive, time-consuming disputes can be prevented. Once identified, any potentially problematic electronic discovery issues must be ready for discussion at the Rule 16 conference.³⁸ The scheduling order must then include provisions for the disclosure or discovery of electronically stored information (ESI) and for any agreement the parties reach on asserting privilege or protection claims after production.³⁹ A lawyer who arrives substantially unprepared, or who does not participate in good faith, risks sanctions under Rule 16(f)(1)(B).⁴⁰ Two purposes that Rule 16(a) names bear most directly on discovery: establishing early and continuing control so that the case is not protracted for lack of management, and discouraging wasteful pretrial activities.⁴¹

Control takes concrete forms. An early scheduling conference commonly sets deadlines for stages such as automatic disclosure, document production, and depositions,⁴² and a series of conferences may schedule discovery and fix deadlines for pretrial motions.⁴³ The order in which discovery proceeds can also save money. If a single question could end the case, discovery on that question first lets the parties learn the answer before paying for the rest. If damages discovery runs first, the same money may go to a case that a legal ruling later removes.

The referral in that scene has its own line in the rule. The court may consider "referring matters to a magistrate judge or a master."⁴⁴ A magistrate judge is a judicial officer who assists the district judge, and a master is an appointed officer who helps with a particular task, so either can take a matter off the district judge's desk. A district judge who decides every dispute personally has less time for the rulings only that judge can make, and conferences are an ordinary place to raise referral.⁴⁵ The item itself says nothing about which matters may be referred, so it is best read as a topic the judge may raise with counsel.

Summary adjudication comes next. The court may consider "determining the appropriateness and timing of summary adjudication under Rule 56."⁴⁶ Appropriateness asks whether a summary judgment motion makes sense in this case at all, and timing asks when the motion should come relative to discovery. A motion filed before the needed evidence exists invites a demand for more discovery, and one filed after all discovery ends saves little of the expense it was meant to avoid. The conference lets the judge fit the motion date into the discovery plan, as the judge did in the scene above. The judge's power to grant the motion at the conference is limited separately: a pretrial judge may grant summary judgment if no triable issues remain, but has no power to determine issues of fact.⁴⁷ A finding at an informal conference about whose account is true would rest on nothing that has been tested.

An essay question in which a judge announces which of two conflicting accounts is true, and then enters judgment, is testing that limit.

Pending motions are the last topic in this group. The court may consider "disposing of pending motions."⁴⁸ An undecided motion delays the case in its own right, because lawyers hold other work until it is resolved or draft papers without knowing what the case will include. The conference gives the judge a point at which to rule on what is outstanding, and the final pretrial conference in particular may cover resolving pending motions.⁴⁹

These four topics share a function. Each helps the court pare the case down and clear the docket, so that time and money go to matters truly in dispute and not to matters better resolved by dismissal, settlement, or summary judgment.⁵⁰ Phasing discovery, choosing when to move for summary judgment, sending disputes to another officer, and ruling on accumulated motions each reduce what the court and the parties must do before trial. The same purpose marks the boundary: reducing the work gives the judge no authority to decide what the parties are entitled to try.⁵¹

Planning the Trial

The court may consider and take appropriate action on "identifying witnesses and documents, scheduling the filing and exchange of any pretrial briefs, and setting dates for further conferences and for trial."⁵³ That topic opens a group of five that look past the conference to the trial itself: the form and content of the pretrial order, separate trials, early evidence on a manageable issue, and time limits on the presentation of evidence follow it. Together they let the judge decide in advance what the trial will contain, in what order its issues will be heard, and how long it will last. Each is permissive, like the rest of the list. The reason to plan at all is that surprises cost the most at trial. Once a jury is seated and witnesses are waiting, an unexpected exhibit or witness costs everyone's time at once, while the same problem raised at a conference costs a few minutes.

These topics come to a head at the final pretrial conference, where the trial plan is formulated. Rule 16(e) requires the presence of an attorney who will conduct the trial,⁵⁴ so the lawyer who makes these decisions is the lawyer who will live with them.

The first topic works by making each side show what it plans to present. The court may require lists of the documents and witnesses to be offered at trial,⁵⁵ and the final pretrial conference may then approve exhibits, resolve challenges to the admissibility of evidence, and determine what witnesses will testify.⁵⁶ The mechanism is exposure. A lawyer who must write down every witness and exhibit, and who receives the same list from the other side, learns before trial what the opponent will offer, so disputes over admissibility and duplicate witnesses surface at the conference table and not in front of the jury.

The topic also concerns the calendar. The court is not limited to a single conference and may call several as the nature of the case indicates, and the rule lets it fix the date of each along with the date of trial.⁵⁷ A trial date set early gives everyone a target to work backward from: the lawyers can schedule depositions, expert work, and motions to finish in time, and the court can arrange its docket around a known day. The dates bind. A schedule may be modified only for good cause and with the judge's consent,⁵⁸ and a party that ignores a date set by a scheduling or other pretrial order risks sanctions for failing to obey it.⁵⁹ The sanctions themselves, and the limits on how severe they may be, come later in this chapter.

The court may also consider and act on "determining the form and content of the pretrial order."⁶⁰ That order records the trial plan. After the final pretrial conference the judge issues an order that resolves questions of trial procedure and sets the stage for presenting the case,⁶¹ and a pretrial order measures the dimensions of the lawsuit in the trial court and on appeal.⁶² Deciding at the conference what the order will say therefore settles in advance what the trial may include. The order's controlling effect and the standard for changing it belong to later sections. This section needs only the point that form and content are matters the judge may settle at the conference.

Separate trials supply a second tool. The court may consider ordering a separate trial under Rule 42(b) of "a claim, counterclaim, crossclaim, third-party claim, or particular issue."⁶³ The reasoning follows from sequence. If everything is tried together, the trial lasts as long as all the proof put end to end. If one issue could dispose of the whole case, hearing it first lets the court learn the answer before the remaining proof is offered. Rule 42(b) governs the separation itself, and the conference is where the possibility is raised.

Early evidence moves in the same direction by a different route. The court may consider "ordering the presentation of evidence early in the trial on a manageable issue that might, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c)."⁶⁴ Rule 50(a) is the judgment as a matter of law available when a jury is deciding, and Rule 52(c) is its counterpart when the judge is; both are only pointers here. The two topics differ in what each moves. A separate trial splits the proceeding in two, while early evidence keeps one trial and brings a piece of the proof to the front, so the court can test early whether a single discrete issue decides the case. The word manageable confines the item to an issue that can be presented briefly and cleanly.

The court may also consider "establishing a reasonable limit on the time allowed to present evidence."⁶⁵ The court's calendar is finite and shared with every other case on the docket, and without a limit the length of a trial is set by whichever side has the most to say and the means to say it. A cap also forces counsel to rank their proof, so the strongest witnesses on contested points get the time and repetitive ones are cut, which carries forward the aim of avoiding cumulative evidence. The rule's own word is reasonable: a limit must leave each side a fair opportunity to present what it needs on the issues it genuinely disputes. A limit sized to the real proof in the case is within the topic, while one so tight that a party cannot present a disputed claim is not.

All five tools share a boundary. They govern when issues are heard, in what order, and for how long, and an order that removes a disputed issue from trial lies outside them. Federal judges may require the attendance and good-faith participation of parties and lawyers at a conference, but they cannot coerce a party by pretrial order to forgo trial.⁶⁶ The conference also cannot serve as a substitute for trial, and the judge presiding at it has no power to determine issues of fact.⁶⁷

When an exam stem has a judge sequence, shorten, or compress a trial, ask whether the order shapes how the trial runs. An order telling a party that it may not try an issue it genuinely disputes is a different order, and no topic on the menu authorizes it.

Complex Cases and the Catchall

The court may consider and take appropriate action on "adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems."⁶⁹ The topic sits on the same permissive list as the rest, so the judge decides whether a case warrants it, and the word potentially lets that decision rest on the prospect of difficulty at the outset. Each named feature strains the ordinary timetable in its own way. Many parties multiply the claims, cross-claims, and discovery requests. A hard legal question can make an early ruling worth more than months of fact gathering. Unusual proof, such as a mass of technical evidence, can overrun a trial plan built for a simple dispute. An ordinary scheduling order and a conference or two suit an ordinary case and leave a sprawling one under-managed, which is the gap this topic fills.

Courts fill that gap mainly by adding management, and the most common addition is more conferences. The court is not limited to one, and in highly complex litigation several may be appropriate, with the first held before discovery to handle preliminary matters and to schedule the discovery and pretrial phases.⁷⁰ A series of conferences can schedule discovery, set deadlines for pretrial motions, and structure the trial. This kind of intensive management has been especially critical in class actions and multidistrict litigation.⁷¹

This topic should not be confused with a different one. The topic on special procedures to assist in resolving the dispute applies only when authorized by statute or local rule, and it covers devices such as mediation, non-binding arbitration, and non-binding summary jury trials.⁷² The complex-case topic carries no such condition. It concerns managing a difficult action, and nothing in it ties the judge to a statute or local rule. Nor does the topic oblige a judge to build elaborate machinery for a suit between one plaintiff and one defendant over a single invoice. The topic answers a need, and where the need is absent the ordinary scheduling order is enough.

The list ends with a residual topic: the court may consider and take appropriate action on "facilitating in other ways the just, speedy, and inexpensive disposition of the action."⁷⁴ The words in other ways make it residual, so a step that serves those aims falls within it even if no specific topic names the step. The practical reason is plain. No list anticipates every management problem that a varied docket produces, and without a catchall a judge who met an unlisted problem would have to wait for a party's motion before addressing it. Rulings on the remedies that might be awarded, which conferences have been used to make,⁷⁵ show the kind of matter such a clause can reach. Because conferences may decide so wide a range of matters, and because those decisions will control the trial, counsel need to be fully prepared on all aspects of their cases at the final pretrial conference.⁷⁶

The word just matters as much as speedy. The topic authorizes management that serves speed and economy, but it does not make speed the only goal. Before a court dismisses a case for ordinary misconduct, it must consider whether the suit has any possible merit. A court of appeals faulted a district court that dismissed a case without considering the likely merits of the claims, where the defendants had never moved for dismissal or summary judgment before the final pretrial conference and had willingly taken part in settlement negotiations.⁷⁷ Later sections take up sanctions in detail.

The words of the action supply the other limit. The topic authorizes management that serves the disposition of the pending lawsuit, and a dispute the parties have never asserted as a claim is not part of that lawsuit. A judge may therefore work toward disposing of the action before the court but may not treat the conference as a forum for resolving a separate disagreement that no one has pleaded.

A judge asked instead to rule at that conference on the remedies available on the invoice claim stands on different ground, because that question belongs to the pending action. An exam stem that invokes the catchall to justify a ruling therefore asks one question: does the matter bear on how the action actually before the court will be disposed of?