§16.6 Analysis

• Jurisdiction: Washington

§16.6ANALYSIS

This section will discuss the various requirements of CR 16 and how they have been construed and applied.

(1)General

In many respects, CR 16 has successfully created efficiencies in trial procedure. There is evidence that pretrial conferences improve the quality of justice rendered by improving the preparation and presentation of cases, tending to eliminate trial surprise, and enhancing the settlement process. See 6A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1522 (3d ed. 2010). In other respects, however, the rule has not been as helpful as anticipated. Although amendments to the Federal Rules of Civil Procedure in 2006 added the disclosure or discovery of electronically stored information to the scheduling order, further amendments to both Fed. R. Civ. P. 16 and CR 16 are necessary to encourage further pretrial management to meet the needs of modern litigation. One significant criticism of rule 16 has been that its application results in overregulation of some cases and underregulation of others. In simple cases, litigants have found pretrial requirements burdensome and unnecessarily expensive. As one commentator observed: "[T]here has always been some question whether the time and effort consumed by the pretrial conference might not offset the benefits it supposedly yields and a concern that the time of judges and lawyers better can be spent in other pursuits." 6A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure §1522, at 305-06. This may be especially true for pretrial procedures that occur long before trial.

Problems also have occurred with the pretrial orders issued as a result of the rule 16...