In two previous articles we talked about the steps in initiating a lawsuit and what goes on in the phase known as discovery. Now we will talk about what happens just before the actual trial, and what you might expect if your lawsuit has gotten to this point.
First of all, be aware that different types of cases may have different rules. For instance, in Florida, a medical malpractice claim requires a mandatory settlement conference at least 3 weeks before the trial. These are mandated with the hope that there will a settlement, eliminating the need for trial. Family law cases are often ordered to mediation prior to actual trial. Your specific case may have rules different than the ones we discuss here, and the time frames are subject to the judge’s orders, so they may vary a bit. Make sure you ask your attorney if you have any questions on this.
The Last Months Before Trial
During the countdown to the trial there are a number of tasks the attorneys must complete. They must submit witness lists and the list of any exhibits they plan on using at trial. All depositions and any other discovery, including medical examinations, must be completed prior to the pre-trial conference. The witnesses must be contacted and notified of the date and time of the trial, and expert witnesses must be put on notice of the scheduling of their testimony.
There is a lot of preparation before trial actually begins, and even though settlement discussions are ongoing, the attorneys must prepare as if they are headed to trial. This preparation involves a number of meetings, conferences and quite a bit of paperwork. The notices and other paperwork must be filed in a timely manner in order for the case to progress smoothly to trial.
Case Management Conference
According to the Florida Rules of Civil Procedure, a judge or either party may convene a Case Management Conference at any time after the responsive pleadings are due. There may be more than one of these scheduled to take care of matters, depending on how the litigation is progressing.
Among the actions taken at a Case Management Conference are to:
(1) schedule or reschedule the service of motions, pleadings, and other papers;
(2) set or reset the time of trials;
(3) coordinate the progress of the action if complex litigation factors are present;
(4) limit, schedule, order, or expedite discovery;
(5) schedule disclosure of expert witnesses and the discovery of facts known and opinions held by such experts;
(6) schedule or hear motions in limine;
(7) pursue the possibilities of settlement;
(8) require filing of preliminary stipulations if issues can be narrowed;
(9) consider referring issues to a magistrate for findings of fact; and
(10) schedule other conferences or determine other matters that may aid in the disposition of the action.
In any event, there is always a pre-trial conference between the judge and the attorneys which serves a number of purposes (and a number of these are similar to the Case Management Conferences). Some of the matters addressed include:
1) the simplification of the issues;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof;
(4) the limitation of the number of expert witnesses;
(5) the potential use of juror notebooks; and
(6) any matters permitted under subdivision (a) of this rule.
Prior to this pre-trial conference the attorneys must work together to draft a pre-trial conference order to submit to the court regarding issues of agreement. Matters not agreed on are left blank pending resolutions arrived at during the pre-trial conference.
Just Before Trial
Typically five days before trial, (or whenever the judge’s trial order mandates) the attorneys for the parties must meet and do the following:
a) mark all exhibits for identification and prepare a chronological exhibit list for use of clerk and court at trial (actual exhibits and documentation evidence shall be available for inspection.
b) admit or not admit as evidence and list specific objections, if any;
c) stipulate as to any matter of fact and law about which there is no issue to avoid unnecessary proof;
d) review all depositions which are to be offered for any purpose other than impeachment to resolve objections to the portions to be offered in evidence;
e) discuss the possibility of settlement;
f) submit an itemized statement of special damages plaintiff expects to prove;
g) discuss and complete any other matters which may simplify the issues or aid in the speedy disposition of this action, its pre-trial conference and trial.
Possibility of Settlement
You may have noticed that “discuss the possibility of settlement” appears time after time in the pre-trial process. Keep in mind that somewhere between 90% – 95% of all civil cases settle before trial. Also keep in mind that a case can settle at any time, including “on the courthouse steps” right before trial, or even in the midst of a trial. The door to settlement is always open, and our civil litigation system tries to encourage settlement of claims to preserve our precious judicial resources. Trials are expensive and time-consuming, and in cases where liability and damages are clear, perhaps not necessary.
Another point of all this pre-trial work, besides encouraging settlement, is to minimize the amount of time a trial will actually take. There is no sense arguing in court about whether a party is liable to an injured party if that issue is clear from the facts – it is a waste of time and money. Stipulations can be made on such matters as liability, medical expenses and property damage. This allows time for the real issues to be explored thoroughly and in a focused manner.
You might be wondering if you have to attend all these conferences and meetings, and for the most part, the answer is no – your attorney takes care of that business on your behalf. You might be required to be available by phone during these times (your attorney should notify you if this is the case) if settlement looks promising and they need your consent on an agreement. Occasionally a judge orders the parties to attend in the hopes a settlement can be reached, but this is not common.
Stay tuned for our final article in this series – The Trial!