PRE-TRIAL CONFERENCES,
SCHEDULING ORDERS, AND OTHER CASE MANAGEMENT ORDERS
Scheduling
Fed. R. Civ. P. 16 gives
federal courts broad authority to structure and schedule pretrial proceedings
and trial. Rule 16(b) requires the court
to enter a scheduling order that limits the time for joining parties and
amending pleadings, filing motions, and completing discovery.[1] The scheduling order may also modify the time
for making disclosures under Rule 26(a) and (e)(1),
limit discovery, set dates for pre-trial conferences and trial, and include
“any other matters appropriate in the circumstances of the case.”[2] But the key is an early and firm trial date.
--Trial
setting
Time limits are essential in
streamlining complex cases. One instance
of limiting time—setting a firm trial date early and sticking to it later—has
almost universal commendation. As the Manual
for Complex Litigation points out, “in litigation involving experienced
attorneys working cooperatively, a firm but realistic trial date may suffice if
coupled with immediate access to the court for disputes that counsel cannot
resolve.”[3] The Civil Litigation Management Manual
endorses “the setting of a firm trial date as part of the early case management
approach” and “adher[ing]
to that date as much as possible.”[4]
The trial setting should
give diligent parties and counsel just enough time to prepare the case for
trial. Long hiatuses between key
events—the initial pre-trial conference, submission of summary judgment
motions, and trial—are a great enemy of efficiency. These breaks cause everyone to forget the
details of the case and force the participants to do the same preparation over
and over. An early trial date keeps the
participants constantly up-to-date on the case, minimizes loss of momentum,
encourages settlement, and enhances the trial’s quality.
A trial date forces parties
and their counsel to think carefully about how to resolve the case and what
resources to devote to resolving it.
Lawyers will have to ask themselves questions like: What evidence do I need to prove or rebut the
plaintiff’s claims or the defendant’s defenses?
How can I find out if the evidence exists and who has it? How can I get it? What discovery can I do without? How should I staff the case? What steps can I take to put the case in the
best posture for settlement? What is the
range of likely outcomes if the case goes to trial?
Parties will want to ponder
the same questions plus additional ones such as these: How much will getting
the case to judgment cost me, both in terms of out of pocket expenditures and
in terms of distraction from my business?
How do those costs compare with what I would likely get or give up in
settlement? As a
result of trial and judgment?
The trial setting also
creates the framework for time limits during the pre-trial phase. The discovery cut-off, the due dates for
expert reports, the deadline for filing dispositive
motions, and all the other pretrial time horizons must take the trial date into
account. Less obviously but more
importantly, the amount of time until trial influences the resources that
parties and counsel choose to expend on the pretrial phase. A deposition that would last two days without
the discipline of a not-too-distant trial date may take only a few hours with
it. A second, third, or fourth set of
interrogatories may prove, on reflection, non-essential. And perhaps informal discovery methods—such
as witness interviews, review of public records, and Internet searches—may
become more attractive.
Those who disfavor reasonable
trial settings do so either because they do not trust the federal courts to
produce just outcomes on the merits or because they do not want just
outcomes. Both groups aim at keeping a
case alive in order to give it a slow and expensive death. “O, that way madness
lies; let me shun that; no more of that.”[5]
Case management
Fed. R. Civ. P. 16(a) permits a
court to convene pre-trial conferences for purposes of “(1) expediting the
disposition of the action; (2) establishing early and continuing control so that
the case will not be protracted because of lack of management; (3) discouraging
wasteful pretrial activities; (4) improving the quality of the trial through
more thorough preparation; and (5) facilitating the settlement of the case.”[6] Subparagraph (c) of the rule empowers the
court to consider, and take appropriate action with respect to, 16 categories
of “subjects” at a pre-trial conference.[7] Subparagraph (e) mandates that the court
“shall” enter an “order reciting the action taken” at the pre-trial conference;
that the order “shall control the subsequent course of the action unless
modified by a subsequent order”; and, in the case of a final pre-trial order,
“shall be modified only to prevent manifest injustice.”[8] The following sections suggest methods for
streamlining a case before trial.
--Challenges
to pleadings
Fed. R. Civ. P. 12(b)(6) authorizes a party to challenge a pleading on the
ground that it fails to state a claim on which the court may award relief.[9] A motion under Rule 12(b)(6)
must establish beyond doubt that the party whose claim it challenges may not
prove any set of facts that would justify relief.[10] A successful motion under the rule may
eliminate legal and factual issues and therefore reduce the scope of future
proceedings, particularly discovery and trial.
Whether or not to seek a partial dismissal turns on the impact
that the dismissal would have on those future proceedings. The dismissal of one count of a
multiple-count complaint, for example, may cost tens of thousand of dollars to
obtain but may not narrow the scope of discovery at all.[11] Unless a motion for partial dismissal would
result in savings that more than offset the cost of bringing it, do not draft
it. As with discovery motions, the hope
of obtaining collateral benefits—such as hurting your opponent—should not
influence your decision.[12]
--Requests for
preliminary injunctive relief
Commercial litigation often
involves requests for preliminary injunctions, particularly in cases alleging
theft of trade secrets, infringement of other intellectual property (including
patents, copyrights, and trademarks), and violation of covenants not to
compete. Fed.
R. Civ. P. 65 governs applications for an order
enjoining a person or persons from engaging in such wrongful conduct pending
trial on the merits.[13]
The availability of
preliminary injunctive relief may materially expedite resolution of a
case. Rule 65 specifically authorizes
courts to “order the trial of the action on the merits to be advanced and
consolidated with the hearing of the application” for preliminary injunction.[14] Indeed, appellate courts have encouraged
district courts and parties to proceed to trial on the merits as expeditiously
as possible in lieu of prosecuting an interlocutory appeal challenging the
grant or denial of a preliminary injunction.[15]
--Markman
hearings in patent cases
The process of “construing”
the “claims” in a patent affords an important means to advance patent
litigation towards resolution.[16] An early Markman[17]
hearing often will allow the parties to adjust their dispute in light of the
court’s interpretation of the patent claims.
That is because many patent disputes raise the question of whether the
often arcane language in a patent “claim” has a particular meaning and,
therefore, covers the device or process that the plaintiff accuses of
infringement. The parties may thus avoid
the frequently gargantuan expense of litigating the other patent issues.
--Expert discovery and Daubert challenges
Commercial lawsuits, almost
without exception, require expert testimony of some kind.[18] Subjects include the definition of relevant
product and geographic markets in antitrust cases; market efficiency and loss
causation in securities fraud cases;[19]
infringement of intellectual property in patent, copyright, and trademark
cases; and damages in practically all commercial cases.
Expert evidence presents
modest opportunities for expediting and streamlining litigation. Disclosure of experts and expert discovery
typically happen relatively late in commercial litigation, so resolving the
question of admissibility of the experts’ opinions under the requirements of Daubert[20]
will not usually permit early resolution of the dispute by settlement or
judgment. The admissibility question
often remains in doubt until the district court resolves Daubert
challenges to expert evidence. The court
and parties may therefore want to schedule a Daubert
hearing a month or more before the trial date.
--Summary judgment
Under Rule 56, the court may
grant summary judgment on claims or defenses before trial.[21] The court must conclude that the party
opposing a motion for summary judgment has failed to present evidence that
would, at trial, raise a genuine issue of material fact in support of that
party’s claims or defenses and therefore entitle the party to submit the claims
or defenses to the finder of fact for decision.[22]
Some commercial cases
present distinct issues that a court may resolve early under a Rule 56
motion. In one case, for example, the
district court dealt first with the question of whether severability clauses in
insurance policies allowed the insurers to rescind.[23] But, as with motions to dismiss, think
carefully about whether bringing a summary judgment motion really will produce
time-and-effort savings that substantially
outweigh the cost.
Next Issue: Trial
Copyright
© 2005 Thomson * West. All rights
reserved. Used with permission.
[1] Fed. R. Civ.
P. 16(b); see generally Chapter 27 “Scheduling and Pretrial Conferences and
Orders”.
[2] Fed. R. Civ. P. 16(b).
[3] Manual for Complex Litigation,
Fourth § 10.13.
[4] Civil Litigation Management Manual
2.
[5] King Lear, Act 3, Scene 4. Despite the significance of a trial setting,
Rule 16(b) does not require that scheduling orders include one.
[6] Fed. R. Civ.
P. 16(a); see Chapter 27 “Scheduling and Pretrial Conferences and Orders”.
[7] Fed. R. Civ. P. 16(c).
[8] Fed. R. Civ. P. 16(e).
[9] Fed. R. Civ.
P. 12(b)(6); see Chapter 6 “Responses to Complaints”
[10] Conley v. Gibson, 355
[11] Worse, it may also block use of evidence that would damage the plaintiff’s credibility on the remaining claims.
[12] See supra § X:15.
[13] See Chapter 13 “Provisional Remedies”.
[14] Fed. R. Civ.
P. 65(a)(2).
[15] See, e.g., Lakedreams
v.
[16] See Chapter 63 “Patents”.
[17] The name comes from Markman
v. Westview Instruments, Inc., 517 U.S. 370 (1996),
in which the Court held that interpretation of claims in patents presented a
question of law for the courts rather than a fact question for juries.
[18] See Chapter 23 “Selection of Experts, Expert Disclosure and the Pretrial Exclusion of Expert Testimony” and Chapter 35 “Expert Witnesses”.
[19] See Dura
Pharmaceuticals, Inc. v. Broudo, 125
[20] See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) (establishing standards for evaluating
admissibility of experts’ opinions).
[21] See Chapter 25 “Summary Judgment”.
[22] Celotex Corp. v. Catrett, 477
[23] In re HealthSouth Corp.,
308 F. Supp. 2d 1253, 1267 n.24 (N.D. Ala. 2004) (refusing to grant summary
judgment for insurers).