§16.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§16.8STRATEGIC AND PRACTICAL CONSIDERATIONS

Strategic and practical considerations of CR 16 and Fed. R. Civ. P. 16 are discussed below.

(1)Preliminary decisions

Determine first whether to pursue a pretrial conference or pretrial order; they are not always necessary or desirable. Although normally there is very little "down side" to either a pretrial conference or order (except, perhaps, for the time investment), the efficacy may depend on the differing perspectives of the parties. For example, the plaintiff may either oppose a pretrial order or seek entry of a very broadly drafted one. The defendant, on the other hand, may want to force the plaintiff to a very specific pretrial order so that the defendant can limit the plaintiff's ability to later change his or her case. A pretrial conference may be particularly beneficial in multiparty litigation, exhibit-intensive matters, or cases with a significantly adversarial discovery process.

When deciding whether to pursue a pretrial conference, consider local rules. The local rules in each county will control the practical aspects of pretrial procedure, and some local rules are specific and detailed. In some counties, the required exchanges of information and identification of issues may eliminate the need for a pretrial conference or order. The diligent use of discovery also can eliminate any disputes as to witnesses, exhibits, and the issues for trial.

(2)Specific topics for discussion in pretrial conference and inclusion in pretrial order

Consider the following issues for discussion and/or inclusion in the pretrial conference and order.

(a)Amendments to pleadings

By the time of the pretrial conference, you should not need to amend pleadings. In fact, in some counties, local rules impose deadlines for amending pleadings. See King County LR 16. If a party needs to amend the pleadings, however, and has not raised the issue earlier, he or she should certainly raise it at the pretrial conference. See Chapter 15.(Rule 15. Amended and Supplemental Pleadings) of this deskbook.

(b)Admitted or disputed facts

In cases in which a pretrial order is entered, the essential factual contentions should be set out as either "admitted" or "disputed" facts. To this end, the attorneys should make a good faith effort to admit those facts that cannot be controverted so that the issues for trial are as narrowly denned as possible.

(c)Expert witnesses

If the local county rule imposes no earlier deadline on identification of experts, this issue should be addressed in the pretrial order and, if necessary, at the pretrial conference.

The expert's name, address, area of expertise, and the general expected nature of his or her testimony should be set forth in the pretrial order. Many courts hold that if a witness is not disclosed at a pretrial conference and the opposing party objects to his or her appearance, the court may exclude such expert's testimony at trial. See, e.g., Vasquez v. Markin,46 Wn.App. 480, 492, 731 P.2d 510 (1986), review denied, 108 Wn.2d 1021 (1987) (expert's testimony excluded when party failed to disclose pursuant to pretrial order and testimony would be cumulative, raising no new issues); see also Alvarez v. Mauney,175 So.2d 57 (Fla. App. 1965). In one case, the court excluded the expert as a witness even though opposing counsel made no objection to the nondisclosure. Rose v. Yuille,88 So.2d 318 (Fla. 1956). In many cases, however, the objection will be considered waived if not asserted. See §16.8(3), below, regarding modification of the pretrial order at trial.

(d)Exhibits

The court should determine the position of each party regarding the opponent's exhibits and attempt to resolve any disputes about exhibits at the pretrial conference, if possible. Each side should bring to the conference copies of all exhibits that will be offered at the time of trial, or a list of them. The court may require disclosure of all exhibits even if the local rules do not. Syracuse Broad. Corp. v. Newhouse,295 F.2d 269 (2d Cir. 1961). The failure of a party to disclose exhibits may result in their exclusion from evidence at trial. Paradigm Sales, Inc. v. Weber Marking Sys.,880 F. Supp. 1247 (N.D. Ind. 1995).

The court may ask at a pretrial conference for the attorneys to address their opponents' exhibits. Be prepared, therefore, to state objections to the introduction of any exhibit and to argue the legal issues raised by the objections. Failure to make a proper objection may result in its waiver. See Wabash Life Ins. Co. v. Senitt,181 So.2d 22 (Fla. App. 1965). A party cannot be required to disclose an exhibit that is "work product," however, unless the party intends to offer it into evidence for purposes other than impeachment. Collier v. McKesson,121 So.2d 673 (Fla. App. 1960).

Exhibits may be marked at the time of the pretrial conference using a system that combines all exhibits into one set of exhibit numbers; stipulations concerning the authenticity of photocopies are appropriate.

Practice Tip: Inquire at the pretrial conference regarding intended use of computer-generated exhibits and presentations and equipment that will be required at trial to

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