PRACTICE TIP #1: It states the obvious to remind the practitioner that different

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1 PRETRIAL PROCEDURES AND REQUIREMENTS: GETTING OFF TO THE RIGHT START 1 COURT S AUTHORIZATION TO REQUIRE PRETRIAL CONFERENCES Pre-trials are authorized by Fla. R. Civ. P. APretrial Procedure@ 1.200(b)-(d). 2 While covered under the same rule, case management conferences 3 are substantively and procedurally different than pretrial conferences (a) Unlike a case management conference a pre-trial can only be set once case is at issue. Pre-trials are used to simplify the issues for trial. Cooke v. Insurance Co. of North America, 652 So.2d 1154 (Fla. 2 nd DCA 1995) At least twenty day notice of a pretrial hearing is required Fla. R. Civ. P (c) PRACTICE TIP #1: It states the obvious to remind the practitioner that different judges will conduct different types of Apre-trials.@ Some are not even pretrial conferences in the true sense of the rule. The attorneys should ascertain at the beginning of the case what Atype@ of pretrial will be required, who is expected to attend, what will occur at the conference, what the judge seeks to accomplish at the pretrial conference, and what the potential consequences will be for failure to comply with the requirements under this particular judge. In the Ninth Judicial Circuit there is a AUniform Order Setting Case For Jury Trial; Pre-Trial Conference and Requiring Pretrial Matters to be Completed@ (UNIFORM ORDER). WHY HAVE PRE-TRIALS ANYWAY? 1 Any cases or authorities cited in the outline should be confirmed, before utilizing, as to validity, or continued validity, of the citation and their application to the principle(s) for which they are cited. 2 Note that Fla. R. Civ. P (b) allows the Court the option of conducting a pretrial conference. However, if a party moves for a pretrial conference, the language becomes mandatory (AY the court Y shall on the timely motion of any party) and a pretrial conference must be conducted. 3 Further, specific case management conferences and procedures for designated complex cases are set forth under Fla. R. Civ. P for Complex Litigation which was first adopted in June 2009.

2 Judicial perspective: From the Court=s judicial perspective, a pretrial assists the Court in assuring the orderly presentation of the trial when it is called for trial. Issues can be identified; the certainty, or lack thereof, that the trial will proceed as scheduled can be determined; the length of the trial can be estimated; the size of the jury pool that will be required can be approximated; special provisions that may be required for the presentation of the case can be discussed; and any trial requirements that the judge wants to impart to the litigants can be shared. In summary, it provides the Court with some more direct control of her/his docket. PROFESSIONALISM POINTER: It should be remembered that the Court has a finite number of a days each year that the Court can actually try cases. If it is a two week trial docket, the Court may have 20 to 40 cases set for that docket. Obviously all of those cases can not be reached on that limited docket. The Court will use the pre-trial to determine which cases more than likely will need to be tried and line those cases up in an effort to make the best utilization of the limited trial time available. Accordingly, counsel should be mindful and keep the Court advised of the actual likelihood of a case being tried on that docket versus it being resolved. PRACTICE TIP #2: One of the most dangerous assumptions to make is that if counsel are not ready for the trial, the Court will grant a continuance. Such an assumption, at least in this author=s opinion, is almost legal negligence per se should a client be damaged as a result of that lack of preparation. Many judges will not consider motions to continue at pre-trial; still others will not continue a case once it was set B even joint motions -- especially if it was set with agreement of all counsel. Remember, the Uniform Order Setting Case For Jury Trial; Pre-Trial Conference and Requiring Pretrial Matters to be Completed sets forth in paragraph #8 that A[a]ll discovery shall close on the day prior to the pretrial conferencey.@ 2

3 Counsel=s perspective: The attorneys can benefit greatly from a detailed order requiring a pretrial conference, compliance therewith, a resulting order entered after the pretrial conference (Order on Pretrial Conference, or Pretrial Conference Order) and a court that will enforce compliance with the order. Predictability as to (1) what witnesses will be called, both fact and expert, (2) what exhibits may be offered, (3) what those exhibits will look like and what the contents of those exhibits will be, (4) what the non-trial objections 4 will be to those exhibits, (5) what facts will be agreed to and stipulated to, (6) what issues of law will be raised, (7) the number of jury strikes that each side will have, and (8) what the venire will be told about the case at the time of jury selection is extremely helpful in final trial preparation. Surprises about expert testimony can be eliminated for the most part. Jury instruction requirements will be clear as well as any division specific requirements of the particular judge in front of whom this case will be tried. In summary, for counsel the issues should be crystallized and the discovery completed prior to the pretrial conference This allows the parties to have a good feel for when and if the case can be resolved without having to spend the actual funds and time necessary for the final trial preparation. WHAT IS REQUIRED IN THE NINTH CIRCUIT? 4 Some objections to exhibits are trial specific, such as relevancy, and may need to be made at trial in light of the predicate that is laid or not laid. Other objections must be made at the Ameeting of attorneys and pro se litigants@ if they are to exhibits that are to be used for trial or these objections may be considered waived. See, UNIFORM ORDER &7, '(a)2. 3

4 The Courts have determined that the goal of the UNIFORM ORDER is to accomplish four general things: set dates for the trial and pre-trial, establish cutoff dates for pretrial matters, establish submittal dates, and set forth the consequences for failing to comply with the UNIFORM ORDER 5. Fla. R. Civ. P (c) requires that [o]rders setting pretrial conferences shall be uniform throughout the territorial jurisdiction of the court. Setting Dates: It has been said that the establishment of a date for trial is the most effective way to move a case forward. It is the selection of the trial date, and with it the concomitant pre-trial date, that starts the pretrial process. All other dates draw their relevancy and existence from these two dates. Different judges follow a multitude of different procedures for selection of trial and pre-trial dates. Some just place a case that has been noticed for trial 6 on the next available docket. Others require a hearing to choose the date. Still others attempt to approximate how long it will take for a case to be ready for trial, and use that Aguess@ to plug the trial into the Court=s calendar. Whatever the process, it is critical that the trial lawyers understand what system the judge and the judicial assistant utilize. 5 Some divisions have division specific guidelines that either enhance, modify or supplement the requirements of the uniform order. In addition, the newly revised UNIFORM ORDER provides that DIVISION SPECIFIC GUIDELINES. A copy of the additional guidelines applicable to the division in which this matter will be tried is attached as Exhibit A. All counsel are charged with reading and being familiar with the contents thereof and complying therewith. 17, UNIFORM ORDER, Revised September A notice for trial does not tell the Court when the case will be ready to be tried. It just tells that Court that the case is Aat issue.@ Ironically, the rule does require that the notice state how long the trial will be, whether it is a jury or non-jury trial and whether the trial is on the original action or a subsequent action. Fla. R. Civ. P (b). A party filing a Notice of Trial under has a right to have the trial set and the fact that discovery still needs to be completed and/or summary judgments heard is not a deterrent to the setting of the trial. Parkinson v. Kia Motors Corporation, 54 So.3d 604 (Fla. 5 th DCA 2011); Rolle v. Birken, 994 So.2d 1129 (Fla. 3 rd DCA 2008); Gracia v. Lincare, Inc., 906 So.2d 1268 (Fla. 5 th DCA 2005) 4

5 PRACTICE TIP #3: If a notice for trial is filed without consultation with the other side and the court, counsel are essentially turning control of the setting of the case to the Court. The better practice is to obtain a copy of the Court=s trial schedule for as far out as possible as well as a copy of his/her dates for pre-trial. An in person meeting with opposing counsel with a copy of the available trial dates should allow both counsel to choose a date that is sufficiently in advance to complete discovery and ensure the predictability of the trial date. A notice for trial can then be drafted noting the case is at issue but jointly requesting a specific trial date and pretrial date in the Notice. As important is the selection of the pretrial date. This date usually follows from the trial date that was selected. Once again judicial philosophy and practice dictate when the pretrial will be set and from that the practitioner may draw some inference of the purpose of the pre-trial. Some judges use a pre-trial as a Adocket call@ or a Asounding of the docket.@ Others utilize the pretrial as an actual hearing lasting from 15 to 30 minutes or longer. Pretrial may occur one or two weeks before the trial or even a month or more before the trial. It is absolutely critical that the lawyer know what will happen at the pretrial and what is expected of the attorney. PRACTICE TIP #4: For a pretrial to be truly a pretrial and be meaningful it should occur a sufficient time prior to the trial date to allow for errors or emergencies to be resolved prior to trial. It may be that a party will have to formally move for a pretrial conference and lay out specifically in the motion what she/he would like the Court to accomplish at the pretrial conference pursuant to Fla. R. Civ. P (b). At the conclusion of the pretrial conference the moving party should prepare and submit an order to the Court for entry as required under (d). In the unlikely event that the judge will not set a pretrial conference, or not a meaningful one, the attorney may need to move under 1.200(a) for a case management conference. Alternatively, a request to designate the case as Complex Litigation under Fla. R. Civ. P which contains explicit requirements for multiple conferences can be made assuming the case qualifies. 5

6 Establish Cutoff Dates For Pretrial Matters: UNIFORM ORDERS establish cutoff dates. The dates are for setting and completion of mediation, disclosure of witness and experts, completion of discovery and testing, filing and hearing of motions, and meeting with all counsel to go over matters. These dates should be calendared, anticipated, and adhered to religiously. It is these dates that serve as the backbone of the pre-trial order, the pretrial hearing and subsequently the trial. Failure to adhere to these requirements can, and many times will, result in significant sanctions up to and including dismissal of the cause of action or entry of a judgment against the defendant. The cutoff dates have a domino effect. Many times the disclosures and discovery dates are staggered to allow opposing experts to respond to plaintiff s and defendant s allegations. Once a cutoff date is missed, it has the effect of throwing all other dates contained in the order off balance leading to an eventual request for a continuance B and many times a denial of same. When considering and establishing cutoff dates unintended and unforeseen delays must be anticipated. If discovery is by interrogatories and/or requests to produce, the possibility of incomplete answers or objections being interposed must be anticipated to allow sufficient time for a motion or a hearing if the matter cannot be resolved. A failure to appear at a deposition or lack of responsiveness at deposition or an outright refusal to answer must be considered when planning a deposition schedule. The same with a request for a compulsory medical examination under Fla.R.Civ.P (a)(1)(a) if an objection is lodged and hearing is necessary or required under 1.360(a)(1)(B) The pretrial order will require motions to be filed and heard prior to certain dates. The lawyer must recognize that a court=s hearing calendar can be filled 6

7 months in advance, and a last minute request for hearing may not be able to be honored. Other motions, such as summary judgment require that a certain amount of time be given opposing counsel before a hearing may occur on the motion. PRACTICE TIP #5: When possible it is wise to have a secretary or paralegal log in all Acutoff@ dates in your calendar immediately upon receipt of the UNIFORM ORDER. ATickler dates@ should also be logged well in advance of the upcoming required actions reminding both the attorney and the assistant that these dates are rapidly approaching. Keep in mind should an ultimate sanction be imposed because of failure to comply with a pre-trial requirement, the client may not have lost their cause of action; they may just have a new defendant in their new legal negligence claim! Establishment Of Submittal Dates: While maybe not as critical as the cutoff dates, the establishment of submittal dates also may affect the eventual outcome of the trial. Trial courts like to be prepared for the trial they are about to begin. Their dockets are so large that -- sometimes in excess of 6000 cases the courts cannot physically prepare for every trial knowing that the vast majority will not go forward. Therefore, schedules of when things need to be submitted to the court have been developed. The UNIFORM ORDER directs presentation of trial briefs, jury instructions and the AJoint Pretrial Statement@ within certain time frames. For example, under the new jury instructions, judges are permitted, maybe encouraged, to provide the jury with preliminary jury instructions after voir dire and prior to opening statements. If one party has submitted timely proposed instructions and one has not the Court may be inclined to use the one in its possession albeit with some modifications by the Court. Likewise if a legal issue arises at the beginning of the trial and the judge has reviewed the one trial brief that was timely submitted but 7

8 not the other, which was late filed or not yet submitted, the advantage to the one party is obvious. PRACTICE TIP #6: While not generally required, a short, succinct trial brief with the attached highlighted case law is always appreciated by the Court and most times very helpful to the Court and to your client. Sanctions/Consequences, Fla. R. Civ. P (C): While it should never be a factor encountered by a trial attorney, failure to comply with a UNIFORM ORDER or an Order issued at pretrial can result in the imposition of sanctions. A judge=s willingness to sanction a party will vary a great deal. Some judges consider orders setting pre-trials to be absolute and demand strict compliance with time frames and deadlines. Others are more forgiving. It is critical that the attorney know how a judge will react to failure to comply with the Court=s order. Failure to comply with a pretrial order can be handled as a contempt sanction. However, failure to attend a pretrial has additional and specific sanctions. Fla. R. Civ. P (c) provides, A[o]n failure of a party to attend a conference, the court may dismiss the action, strike the pleadings, limit proof or witnesses or take any other appropriate action.@ In Travelers Insurance Co. v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978) the Second District expanded the sanctions available under Rule to failure to comply with pretrial orders, not just failure to attend. ANevertheless, we are unwilling to hold that the court cannot strike a party=s pleadings for the willful and flagrant failure of his attorney to comply with this or any other legitimate order.@ Rodriguez at 465. Courts have been authorized to issue a variety of sanctions for various violations. First Republic Corp. v. Hayes, 431 So.2d 624 (Fla. 5 th DCA 1983) These 8

9 include: (1) failure to submit a pretrial list and appear, Bernuth Marine Shipping, Inc. v. Integrated Container Services, Inc., 369 So.2d 424 (Fla. 3 rd DCA 1979), (2) failure to have someone with authority to settle at the hearing as ordered, Masons Concrete of Crystal River, Inc. v. Corbin Well Pump & Supply, Inc., (Fla. 2 nd DCA 1978), (3) failure to comply with court order allows dismissal of the action, Warriner v. Ferraro, 177 So.2d 723 (Fla. 3 rd DCA 1965), (4) to exclude witness for failure to disclose identity of witnesses, Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981), and (5) even though no surprise is shown, experts may be excluded for failure to have had him listed in compliance with the pre-trial order. County of Brevard v. Interstate Engineering Co., 224 So.2d 786 (Fla. 4 th DCA 1969) However, excluding an expert is an extremely serious sanction which the Court should only order when prejudice is shown on the record. While there is a wide discretion on the part of the court to impose sanctions and enforce its pretrial order and procedures, the discretion is not unbridled. The sanction must be commensurate with the offense. While the party can suffer the consequences of the attorneys inaction or non compliance, the courts have long suggested that the attorney should bear the consequence. Quoting the Florida Supreme Court in Beasley v. Girten, 61 So.2d 179 (Fla. 1952), the Third District pointed out: The court unquestionably has power to discipline counsel for refusal or failure to meet the requirements of the rule. Such refusal may warrant a citation for contempt or a lesser degree of punishment, but it is our view that the major punishment for such delicts should ordinarily be imposed on counsel rather than on the litigant. First Republic Corp. at 627. THE PRETRIAL CONFERENCE ITSELF 9

10 Make certain that you have either attended or observed a pretrial with this judge before conducting the one on your own case. If that is not possible, speak with the JA, the clerk and the deputy so you will be knowable as to what to expect. Most judges will have multiple pre-trials set at the same time and even a detailed pretrial hearing will move fast. When attending a pretrial conference (1) be on time, (2) be prepared and (3) be the person who is required to be at the pretrial conference. If you have complied with all pretrial requirements file a pretrial compliance so stating and bring a copy for the Court. Generally a joint pretrial statement is required to be filed. Preferably file it prior to the pretrial conference, but in any event bring an extra copy for the Court. Know in advance what the Court will want to know and/or cover at the pretrial conference and be prepared with the responses. Some judges will simply want to know if you are ready for trial. Others may inquire as to some or all of the following and hold you to the responses at the time of trial: See for example Judge Kest s Order Controlling Trial and Pre-Trial Checklist Attached. 1- Is there an agreed statement of the case to be read to the jury? 2- Is this a jury or non-jury case? 3- Will there be a court reporter? Who will hire the court reporter? 4- When will the rule of sequestration be invoked? 5- Will an interpreter be necessary? For whom? Who will hire the interpreter? 6- Have all exhibits been: exchanged? initialed? marked for ID or in evidence? 7- Have demonstrative aids been: exchanged? initialed? marked for ID? 8- What is the status of Mediation? Continued settlement possibilities? 9- What depositions are to be used at trial? Video? Objections and Designations? 10

11 10- Have stipulations been entered regarding custodians, admissions, etc? 11- Have motions in limine been filed? Discussed? Briefed? Scheduled for Hearing? 12- Are trial briefs going to be filed? 13- What is the estimated time for each party for: Voir Dire? Opening? Closing? 14- Will there be a need for the court to take judicial notice? Of what? Filed yet? 15- Will there be any audio/visual requirements? Has A/V been contacted? 16- The Court will give opening and closing instructions as follows: 17- How many strikes per side are requested? What size venire will be necessary? 18- Is their any last minute unforeseen discovery outstanding? 19- Will a scene visit be required? Who is arranging and paying for it? 20- Experts testimony will be controlled as follows: Comment [c1]: Are you going to list any???? Importantly, a pretrial order must be issued after the pre-trial. Fla. R. Civ. P (d) AThe order shall control the subsequent course of the action unless modified to prevent injustice.@ (Underlying supplied) Many times judges will not issue an actual pretrial order. It is suggested that an order be prepared that accurately reflects what transpired at the pretrial conference and be submitted to the Court. While not required, consider having a court reporter at the hearings if the judge is going to establish perimeters for the presentation of evidence at the trial. PRACTICE TIP #7: Bring your secretary, assistant, paralegal and/or trial partner with you to the pre-trial hearing. It is critical that you and they be aware of what is expected at trial and how things will proceed. The court may discuss how exhibits will be handled and marked, the requested size of the venire panel, how voir dire and jury selection will occur, how jury instruction will be handled and other trial requirements. 11

12 The Court will assume that trial counsel knows and will remember what was said a pretrial and, therefore, an additional set of eyes and ears are most helpful. It is also a good time for the paralegal to meet with the clerk and develop and understanding how the exhibits will need to be marked and presented. Contingent on advance scheduling, it may be a time for counsel and his/her team to visit the courtroom in which the case will be tried so counsel has a feel for this specific courtroom and what is, and is not, available. Judge John Marshall Kest August 2011 (Copyrighted) 7 7. Comments, recommendations, practice tips and professionalism pointers are solely those of Judge John Kest. When appearing in front of a specific judge, each attorney should check with that judge for the individual procedures, policies and requirements of that judicial division or judge. 12