Best practices for joint pretrial statements

Joint pretrial statements—final pretrial orders in federal court—are *crucial*. They define the legal and factual issues for trial. That is true even if those issues differ from the pleadings. But I often encounter the same problems with them. Unfortunately, that leads to more work as you’re approaching trial—so just when time is its most precious! Here are some ideas to help make your JPS better.

First, don’t sweat making it an evocative piece. This isn’t the place to persuade; it is a more mechanical document than your pleadings, motions to dismiss, motions for summary judgment, and such. Identify the material disputed issues, but don’t take time explaining why your version of events is more believable or persuasive. For example, an issue may be, “Did Dr. Jones adhere to the standard of care when performing the XYZ procedure on Plaintiff Smith?” You don’t need to also explain why your experts are right and the other experts are wrong. Another issue could be, “Was the Smith Group an association-in-fact enterprise under RICO?” You don’t also need to spend pages explaining the evidence you’ll use to show the enterprise existed.??

Be reasonable, of course. I’ve seen people go too far in the other direction and write only, “Defendant disputes Plaintiff’s position and will put Plaintiff to strict proof.” You need to give me more than that!??

Second, focus on the nuts and bolts, like exhibits. List actual exhibits, too, not just undefined categories like, “Photographs.” One purpose is to ensure we’re defining actual trial exhibits so the parties can sort out objections or stipulate to admissibility. So if you’re using exhibits, either list them individually or make identifiable groups, such as, “Accident scene photographs (20), group A.” You’ll have provided those 20 photographs to your opponent so everyone knows what that exhibit it. And maybe everyone will agree to admit those photographs but a disagreement exists about group B.??

For similar reasons, don’t list purported exhibits like, “All discovery in the case” or “All disclosure statements.” Those aren’t meaningful exhibit designations. How could anyone know which of the dozens or hundreds of discovery/disclosure documents you intended to use? Plus, those designations literally mean one exhibit comprising hundreds or thousands of pages from different sources. If any part is inadmissible, the entire thing is inadmissible. It also signals your judge that you haven’t focused on trial preparation. Those types of placeholders may work in disclosure statements, but the JPS isn’t the place for them. Likewise, including “any exhibit listed by any party” isn’t an exhibit designation. We want to get one list with actual exhibits and any objections.

Trial is where you’ll persuade and make your exhibits come alive. The JPS is more like an owner’s manual for trial. Good luck!