What You Can and Can't Do by Stipulation

• Author: Karen L. Stevenson
• Pages: 18-19

pposing counsel just c alled to propose that the

parties stipu late to certain facts or evidence in

the case. A stipulat ion seems like a good idea

to avoid motion practice. But before ag reeing

to stipulate, make su re you understand the c on-

sequences of the propose d agreement. Stipu lations are valu-

able tools for litigants but should b e used skillf ully.

An Eective Way to Satisfy R ule 1

Rule 1 of the Federal Rule s of Civil Procedu re requires that

the court and t he parties cons true, administer, and employ

the rules of civi l procedure “to secu re the just, speedy, and

inexpensive deter mination of every action and proceed ing.”

Consistent with Ru le 1, judges are usually h appy when the

parties ag ree on something w ithout needing to have full

brieng or a hear ing on the issue.

What You Can Do by Stipulation

A stipulation is simply an ag reement between the partie s. To

be effective, t he stipulation must be in writing and sig ned by

the judge or made on the record in op en court. One of the

most common uses is a s tipulated protective order t hat gov-

erns the procedu res for handling c ondential i nformation

disclosed duri ng discovery. Before the court can approve the

stipulation, the propo sed order must include a stateme nt of

good cause as to why the in formation requires c ondential

treatment. Fur ther, condential designation for pur poses of

discovery wil l not necessarily govern the treatment of suc h

documents at tr ial.

Parties can a lso stipulate to admitted facts. I n a contract

dispute, for example, t he parties may stipulate as to the

existence of the cont ract, the parties to that contrac t, and

the date of its execution. Pa rties may also stipulate that a

key witness ser ved in a particu lar role or held a certain title

during a speci ed time period if these facts a re relevant and

undisputed. Adm itted facts do not need to be proven at trial,

making tri al shorter and less costly.

Before stipulatin g to admitted fact s, make sure you have

thoroughly reviewed t he underlying evidence, including

relevant documents a nd deposition testimony, to be sure

What You Can and Can’t Do

by Stipulation

By Hon. Karen L . Stevenson, Litigation Ne ws Associate Editor

© Getty Image s

18 | SECTION OF LITIGATIO N

Published in Litigation News Volume 46, Number 3, Spring 20 21. © 2021 by the American Bar A ssociation. Repr oduced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

VIEW FROM THE BENCH