The eve of trial has finally arrived. Just one last proceeding before the big event: A final case management conference. Many courts require a final conference as a way of compelling the parties to complete many tasks that would otherwise take up time at trial. Even though you are in the midst of trial preparation, don’t overlook the importance of preparing for this last pre-trial hurrah.
Counsel facing a final case management conference should prepare by using this checklist of 20 questions to consider:
___ 1. Does the trial judge’s knowledge about any party or witness require that the judge be disqualified?
___ 2. Should the parties explore settlement possibilities?
___ 3. Can the issues be narrowed or modified by stipulations or motions?
___ 4. Are there any potential time constraints for a party, counsel, or the judge, e.g., because of other commitments of counsel, a witness, or the court?
___ 5. If not addressed at earlier case management conferences, have issues raised by the pleadings been resolved? E.g.:
- Have named or fictitious parties been served, dismissed, or answered, or are they in default?
- Have any defaults been entered?
- Have any causes of action been dismissed?
- Have any law and motion, discovery, or summary judgment proceedings resulted in the dismissal or striking of any pleading or portion of a pleading or the adjudication of any factual or legal positions?
- Are cross-complaints, setoffs, credits against judgment, liens, or pleadings-in-intervention pending?
___ 6. Is there any indication that the trial should be bifurcated? E.g.:
- Should liability be tried separately before damages?
- Are there any special defenses (e.g., statute of limitations, prior judgment, another action pending, or other grounds for abatement) that should be tried first?
- Are there any equitable defenses (e.g., laches, “unclean hands,” waiver, or equitable estoppel) that need to be tried separately?
___ 7. What method for marking exhibits should be used? Check with the clerk of the trial department as well as the judge to determine the judge’s preference on marking exhibits.
___ 8. Are there motions in limine that have not been decided? Will judge decide motions before trial or on first day of trial?
___ 9. In jury trials:
- What are the proposed areas for voir dire interrogation?
- What should be included in the brief statement outlining the case given by the trial judge to the jurors?
- Are the parties willing to stipulate to fewer than 12 jurors?
- How many alternate jurors will be selected and how will they deliberate?
- Should jurors who express a desire to not sit for a long trial be excused?
- How will multiple parties share the jury selection process? How many challenges will each side be permitted?
___ 10. What jury instructions does each party propose?
___ 11. Will any party request dismissal of one or more causes of action or parties?
___ 12. Are the parties willing to stipulate to those facts that lack substantial controversy?
___ 13. Will the parties stipulate to waive foundation and other objections on exhibits, tests, or experiments?
___ 14. Does any party intend to file motions in limine to exclude specified evidence or references to it?
___ 15. Are any unusual or critical legal or evidentiary issues anticipated by parties?
___ 16. Does any party plan to move under Evid C §777 to exclude witnesses from the courtroom when they are not testifying?
___ 17. Does the court intend to order preparation of a daily transcript of the trial proceedings? Will parties have “real time” transcription of the proceedings?
___ 18. Does the court intend to limit the length of opening statements, closing arguments, or any other portion of the trial proceedings?
___ 19. Will the court allow reference to exhibits or demonstrative evidence during opening statements?
___ 20. What technology will be used in the courtroom? How will parties share equipment, such as computers and monitors used to show evidence to jurors?
These twenty questions may not be much fun to play as the old “twenty questions” game, but they will make sure that you are well prepared for your final case management conference.
For a discussion of the final case management conference, as well as material on all of the issues raised by this checklist, go to CEB’s California Trial Practice: Civil Procedure During Trial, chap 6. Case management conferences are also covered extensively in California Civil Procedure Before Trial, chap 40.
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