§ 3.02 PRETRIAL STAGES: CIVIL CASES

• Jurisdiction: United States

§ 3.02. PRETRIAL STAGES: CIVIL CASES

[A] Pleadings

The Rules of Civil Procedure use "notice" pleadings,³ which require only a short and plain statement of the claim.⁴ A civil suit begins with the filing of a complaint.⁵ A summons along with the complaint is then served on the defendant,⁶ who is required to respond with an answer.⁷ Unless the party is unsure, the answer must either admit or deny the averments in the complaint.⁸ Failure to deny may result in an admission.⁹ Affirmative defenses must also be set forth in the answer,¹⁰ and a counterclaim may also be required.¹¹

The pleadings can affect the admissibility of evidence. Rule 401 requires evidence to be relevant to a fact that is of consequence to determining the action. Claims not asserted in the pleadings are not issues in the case, and therefore evidence directed toward those claims is not relevant under Rule 401.

Once the pleadings are closed, a party may move for a judgment on the pleadings.¹² If the case proceeds, a pretrial conference will be scheduled.

[B] Pretrial Conference

Pretrial conferences often have a significant impact on evidentiary matters. First, the conference may be used to obtain (1) admissions that will avoid unnecessary proof, (2) stipulations regarding the authenticity of documents, and (3) advance rulings on the admissibility of evidence.¹³ Second, restrictions on the use of experts under Rule 702, which governs the admissibility of expert evidence, may be imposed.¹⁴ Third, the court may issue orders directing a party to present evidence early in the trial with respect to a manageable issue that could, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or for a judgment on partial findings under Rule 52(c).¹⁵ Finally, orders establishing reasonable limits on the time allowed for presenting evidence may be issued.¹⁶ Suppose the judge requests that all the exhibits be marked for identification and then says, "I will admit them all unless there is an objection." Failure to object is a waiver.¹⁷

[C] Discovery

The central purpose of pretrial discovery is to produce a fair trial by preventing "trial by ambush." In addition, pretrial discovery sharpens the issues, perhaps reducing the length of the trial. Discovery also may induce settlements, always a goal in pretrial litigation. Information subject to discovery is not limited to admissible evidence.

Compared to criminal cases, discovery in civil litigation is quite extensive. Rule 26(a) provides for the initial disclosure of (1) the names, addresses, and telephone numbers of persons likely to possess discoverable information (unless that information is to be used solely for impeachment); (2) the inspection of documents and tangible things in the party's control; (3) the computation of damages, including supporting documentation; and (4) the inspection of insurance agreements.¹⁸ Additional discovery is obtained through interrogatories¹⁹ and physical examinations.²⁰

In terms of evidence law, depositions and requests for admissions, as well as provisions on expert witnesses, are the most important aspects of discovery.

[1] Depositions

Civil Rule 30 governs depositions by oral examination.²¹ They are taken under oath or affirmation and recorded. The rule provides that examination and cross-examination of a deponent may proceed as permitted at the trial under the Federal Rules of Evidence, except Rules 103 and 615.²² Rule 615 governs the exclusion of witnesses from trial while other witnesses are testifying.²³ Witnesses can be separated during discovery as well.²⁴ Rule 103(a) requires that objections be made in a timely fashion at trial. Civil Rule 30 includes its own provision on objections.²⁵

The more important provision is found in Rule 32, which deals with the waiver of certain objections by failing to make them at the deposition.²⁶ Objections that might have been corrected by the opposing party if made at the time of the deposition cannot be raised at trial. The rationale is fairness. Had the objection been made at the deposition, the opposing party may have been able to rephrase the question and elicit admissible evidence. By the time of trial, that opportunity may be lost.

Trial use of depositions. Rule 32 specifies several conditions under which depositions may be used at trial. First, a deposition could be used to impeach a witness as a prior inconsistent statement.²⁷ There are two evidence rules governing this type of impeachment.²⁸ A second use would be as former testimony, an exception to the hearsay rule, if the deponent is unavailable at the time of trial.²⁹ Third, any statement of a party or an agent of a party made at a deposition may be admitted against that party as an admission of a party opponent; such admissions are exempted from the hearsay rule.³⁰ Fourth, a deposition could be used to refresh a witness's recollection if the witness has a lapse of memory.³¹

[2] Experts

Another significant part of discovery involves the identity of expert witnesses and their reports:³²

The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years,

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