Home >  Young Lawyers Journal: Pretrial Procedure in State and Federal Court: 90 Days before Trial: Part 2 By Anthony J. Anscombe Anthony J. Anscomb

Young Lawyers Journal: Pretrial Procedure in State and Federal Court: 90 Days before Trial: Part 2 By Anthony J. Anscombe Anthony J. Anscomb


Young Lawyers Journal: Pretrial Procedure in State and Federal Court: 90 Days before Trial: Part 2 

By Anthony J. Anscombe 

Anthony J. Anscombe is a Partner at Sedgwick, Detert, Moran & Arnold LLP in Chicago 

   This article is the second installment of a two-part primer on state and federal pretrial procedure during the 90 days before trial. In the 90-day period preceding trial, review what you have learned and evaluate what it means for your client's position. Also, confront new procedural requirements associated with trial. Most of these coalesce around the final pretrial conference.

 

Knowing the Rules

 

At the outset of your trial preparation, it is critical to know the rules that apply to your case and what your judge will expect of you. Comply with the court's procedures. Failing to do that creates a poor impression and may adversely affect your case. Both the District Court and the Circuit Court have their own local rules and standing orders, and individual judges have their own requirements and preferences.

   In Cook County, the official local rules set forth a few requirements relating to discovery and motion practice. In Circuit Court, it is the standing orders of individual judges that offer the most important sources of pretrial procedural guidance. Obtain these from your judge's chambers. They provide information on pretrial motion practice, trial submissions and trial dates.

   In the Northern District, local rules provide important information applicable to all judges. In particular, LR 16.1 sets forth procedures relating to case management, final pretrial conferences and final pretrial orders. The Final Pretrial Order demonstrates the comprehensive scope of pretrial disclosures required in federal court. In addition to the Local Rules, each judge has a webpage devoted to individual courtroom procedures. See List of Northern District of Illinois Judges and Magistrates, available at http://www.ilnd.uscourts.gov/judge/judicial.cfm. Some individual judges have modified their pretrial procedures from those set forth in the Local Rules. Other judges provide information relating to the manner in which they interpret the FRCP and Local Rules.

   Finally, learn what you can about your judge's temperament, preferences and manner of conducting a trial. In state or federal court, you can derive valuable insight by consulting other practitioners who have tried cases before your judge. The jury verdict reporters will give you the names of lawyers with trial experience before your judge. If you know the identity of your trial judge sufficiently far in advance, monitor the conduct of an ongoing trial.

 

Getting Ready for the Final Pretrial Conference

 

At some point in the 90 days before trial, your judge will convene a final pre-trial conference. Generally, the conference will focus on informing the court about the case, identifying the relevant evidence, and determining how the trial will be conducted.

    In Cook County, if you have a single assignment calendar judge, the final pretrial conference may occur several days to several weeks before the scheduled trial date. On the other hand, if you reach the top of the "black line" and all parties agree to an immediate assignment, you can have your final pretrial conference on the morning of your first day of trial. Whenever it occurs, be ready to present the court with a trial brief, motions in limine, exhibit and witness lists, jury instructions, and verdict forms, and be ready to discuss any additional matters important to your case.

   In the Northern District, under FRCP 16(d) and the Northern District's Standing Pretrial Order, the court will schedule a final pretrial conference "as close to trial as reasonably practical." The parties will usually know the date of this conference far in advance (often at the time of their initial scheduling conference), and the court will look askance at efforts to reschedule it. The court will also schedule a date for submission of a proposed final pretrial order. This order, submitted to the court before the final pretrial conference, must append a statement of contested issues of law and fact, an exhibit list that includes demonstrative evidence, witness lists, lists of depositions to be read and objections to be ruled upon, an itemized statement of damages, trial briefs, proposed jury instructions, verdict forms, a statement summarizing the nature of any settlement discussions, a projection of trial length, a proposed order of issues for trial, proposed voir dire, and other matters relating to the conduct and content of trial. The order also requires the parties to have submitted all motions in limine no later than the date of filing the proposed order. The final order as adopted by the court at the final pretrial conference will become binding on the parties and will control the scope and conduct of trial.

   Many of the judges in the Northern District have published individual requirements relating to pretrial orders and conferences. Familiarize yourself with them.

 

Pretrial Submissions

 

You need prepared a wide variety of trial materials prior to your final pretrial conference. They include:

 

Trial Briefs

 

A trial brief is one of the most important submissions that you will prepare for your final pretrial conference; it provides context. Indeed, your judge may have little or no familiarity with your case. Your trial brief should introduce your case and contentions and should set forth an authoritative statement of the supporting law.

   In Cook County, no countywide rule requires the submission of a trial brief, although the standing pretrial orders of many judges do. Even if your judge does not require a trial brief, you should still prepare one. Such briefs can play an essential role in educating the court to the key issues in the case. Where a judge has specifically requested a trial brief, it should respond to all of the court's requests and observe the court's page limitations. A trial brief should include an introduction to the parties and their counsel, a procedural history of the case, a description of the relevant facts and evidence, an analysis of the legal issues, a summary of damage contentions, and anything else you want the court to know. Be persuasive but not overbearing.

   The Northern District requires the submission of a trial brief in advance of the final pretrial conference. For jury trials, the standard form of final pretrial order requires the submission of a trial brief which provides a "full and complete disclosure of the parties' respective theories of the case." Specifically, the trial brief must set forth (a) the nature of the case; (b) the contested facts the party expects the evidence will establish; (c) the party's theory of liability or defense based on those facts and on uncontested facts; (d) the party's theory of damages or relief; and (e) the party's theory of any anticipated motion for directed verdict. Significantly, the trial brief comes to supplant the operative pleadings, as the court states that "[a]ny theory of liability or defense not set forth in the parties' trial briefs will be deemed waived." Briefs may not exceed 15 pages without prior approval from the court. In bench trials, the court requires a proposed statement of "Findings of Fact and Conclusions of Law."

 

Evidentiary Submissions

 

In anticipation of your final pretrial conference, you will also need to have fully analyzed what evidence you will submit at trial, and be prepared to disclose specific information to the court and your opponent.

   In Cook County, your judge will probably have a standing order that details his or her requirements. The court will likely direct you to submit, at minimum, a list of exhibits (including anticipated objections), a witness list, and designations of any evidence deposition testimony to be read, along with transcripts that allow the court to rule on any objections.

   In the Northern District, under the Standing Order Establishing Pretrial Procedure, the court requires that the parties exchange exhibits in advance of the Final Pretrial Conference and attempt to resolve any disputes as to their admissibility. As part of the proposed pretrial order, the parties must submit a schedule of exhibits and demonstrative evidence, and all must exhibits be marked for identification before trial. The parties must submit a list of witnesses with a statement of objections to the calling or disqualification of any witness. The parties must also designate deposition testimony to be read and identify any objections to it.

 

Motions in Limine

 

At the final pretrial conference, the court will also want to address any disputes as to the admissibility of evidence. If you anticipate significant objections to your opponent's evidence, address those objections by way of a motion in limine. Common areas for objection include the exclusion of irrelevant, confusing or prejudicial evidence; objections to the qualifications, foundation or reliability of expert opinion testimony, i.e.: "Frye" and "Daubed" challenges; and motions calculated to prevent litigation abuse. Keep motions in limine few in number and as short as possible.

   In Cook County look to your judge's standing order on submitting motions in limine. Many judges require that the parties exchange motions in limine and submit opposing papers in advance of the pretrial conference. Plan to give your opponent copies of your motions sufficiently far in advance of trial that your opponent has time to consider and respond to them. The court will not want to take up motions that your opponent has not had a fair opportunity to address. The more complicated your motion, the more lead time you should give your adversary and the court.

   In the Northern District, Section 2(m) of the Final Pretrial Order requires that all motions in limine be filed on or before the date for filing the Final Pretrial Order. The court will set a briefing schedule.

   Once the court rules on the motions, reduce the rulings to a written order; prevent confusion and the risk of a mistrial. If the court has denied your motion in limine, object orally at time of trial, or you will waive your objection. If the court has granted a motion to exclude some of your evidence, make sure that the record reflects that you have made a sufficient offer of proof for later review by the appellate court.

 

Motions Dealing with Trial Structure and the Order of Proof

 

In certain cases, you will also want to submit briefing in advance of the final pretrial conference to address trial structure and the order of proofs. For example, in Circuit Court, you may want the court to split the trial of law counts and equitable counts pursuant to Supreme Court Rule 232, order separate trials of discrete counter or third party claims pursuant to 735 ILCS 5/2-614(b), or sever certain causes pursuant to 735 ILCS 5/2-1006. The Federal Rules have analogous procedures: FRCP 18(a), FRCP 21 and FRCP 42(b).

   In Illinois, authority for novel trial procedures is ambiguous, but your chances of getting a bifurcated trial order will improve if the parties can agree. In federal court, the Manual for Complex Litigation suggests that the staging of trials may be appropriate where issues can be fairly adjudicated in isolation, and may expedite the proceeding. In the Northern District, the model form of final pretrial order allows the parties to agree to bifurcate liability and damage issues, and authorizes a motion for bifurcation where the parties cannot agree.

 

Voir Dire

 

At the pretrial hearing, the court will address jury selection. As part of your preconference research, ask other members of the bar about their experience with your judge, or call the judge's clerk to find out how the judge handles voir dire.

   In state court, Illinois Supreme Court Rule 234 provides that the court shall conduct voir dire but may allow the parties to question jurors directly. In Cook County, jurors complete a service card that provides some basic biographical information. Under Cook County Rule 5.3, counsel may view these before or during voir dire.

   In federal court, FRCP 47(a) allows the court to question jurors, and may also allow the parties to do so. Under L.R. Appendix 1, Form of Final Pretrial Order (2) (i) (iii), counsel must provide the court with a list of questions they want the court to use in voir dire. Additionally, many of the Northern District judges have posted on their web pages a list of proposed voir dire questions.

 

Jury Instructions

 

Prepare instructions by the time of the final pretrial hearing. In state court the judge has the option to instruct the jury on certain topics before opening statements. Also, counsel will want to know the final instructions before closings so that they can use the instructions in argument.

   In Cook County, practitioners must comply with 735 ILCS 5/2-1107, Ill. Sup. Ct. Rule 239, and the standing orders of the trial judge. Where available, Illinois Pattern Instructions ("IPI") are required. Where no IPI instruction exists, draft an instruction that is "simple, brief, impartial, and free from argument." Deliver a copy of your proposed instructions to the court and opposing counsel. The court may request additional instructions. The court will hold a hearing prior to closing argument pursuant to 2-1107(c) at which it will settle the instructions.

   In Federal Court, FRCP 51 requires parties to file and serve proposed instructions to the court and every other party no later than the close of evidence, and at such reasonable earlier time as the court may require. The court must notify the parties of the instructions selected, and give them an opportunity to object before the court instructs the jury. Instructions must be presented to the court at time of the final pretrial conference.

 

Verdict Forms

 

The court will also likely require you to have completed verdict forms by the time of the final pretrial conference.

   In Cook County, consider using special interrogatories where you want to test the jury's general verdict against its finding on certain ultimate facts. The jury's response to a special interrogatory will control its general verdict. It should not ask evidentiary questions but questions that relate to ultimate issues of fact upon which the verdict will depend. The procedure for tendering and objecting to special interrogatories is the same as for jury instructions.

   In federal court, the jury may return a general verdict, a special verdict, or a general verdict with answers to interrogatories. FRCP 49. The first and last are much the same as in state court. A special verdict requires the jury to answer a series of questions and requires it to return a verdict as soon as it answers an intermediate question in a manner that exculpates the defendant. Follow local rules and the instructions of your assigned judge.

 

A Word on Civility in Trial Practice

 

Trial and the 90 days leading up to it are busy and stressful times. All members of the bar have an obligation to comport themselves in a professional manner, and to ensure the integrity of the trial process.

   The Illinois Supreme Court has recognized the importance of civility through its continuing legal education requirement in the area of professionalism. The Northern District recognizes the importance of cooperation in trial preparation, as the Standing Order Establishing Pretrial Procedure 6(a) imposes on counsel a duty to "offer their full cooperation and assistance to fulfill both the substance and spirit of this standing order."

   As a practical matter, civility helps make trial practice a more rewarding experience for all involved. Litigation is naturally competitive, but it need not be at the expense of courtesy. Our courts are not just "halls of justice," but also work environments where integrity and professional courtesy aid success rather than hinder it. In the scurry of trial preparation, do not lose your sense of humor, or forget that paybacks are hard, and you will find it easier to achieve the result you want for your client.


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