Pretrial Conferences, and Pretrial Disposition of Case

Question 1

Pretrial Conf. Concept

Answer 1

Resolution of case can be facilitated by informal meeting before trial or settlement.
Court can do anything that can advance resolution or settlement of the case
1. Can attempt to get parties to make stipulations
2. Require specification of the witness
3. Rule on pretrial matters
4. Admit or exclude evidence
5. Require settlement negotiations
6. Can send parties to alternative dispute resolutions (non-binding mediation)
7. Can sanction for non-participation

Question 2

Pretrial order

Answer 2

Plaintiff usually required to draft pretrial order and send to defendant; requirements can be onerous. Controls actions unless modified to prevent injustice

Question 3

Series of pretrials

Answer 3

Varies with jurisdiction; court is required to have a docket control order early in the case

Question 4

New Management

Answer 4

Various requirements of plans, pretrial orders

1. Tracking
2. Differential case management
3. Staging
4. Fast tracking
5. enforcement
6. adjudication by deadline

Question 5

Tracking

Answer 5

Putting cases in different categories

Question 6

Differential case management

Answer 6

Different management plans for each one

Question 7

Staging

Answer 7

Doing some issues before others

Question 8

Fast tracking

Answer 8

Try the case before x date

Question 9

Adjudication by deadline

Answer 9

Has claim precluded by missed date

Question 10

Summary judgment

Answer 10

If pleading, discovery, affidavits show show no genuine issue of material fact and movant entitled to judgment as a matter of law; Movant show there is no reasonable way opponent can prevail. Note Celotex: A defendant can carry burden without affidavits or proof, by showing that plaintiff can’t produce legally sufficient evidence. Defendant must obtain discovery of all plaintiff’s evidence to do this, otherwise defendant can’t show that plaintiff can’t prove it.

Question 11

Affidavits of inability

Answer 11

May be able to prevent summary judgment by filing affidavit of inability to obtain evidence that may be obtainable in the future.

Question 12

For summary judgment, court can’t

Answer 12

resolve credibility or make fact inferences.. If facts left open, court cannot grant summary judgment.

Question 13

Affidavit requirements

Answer 13

Substituted for evidence, and affidavit show matters that would be admissible under the rules of evidence.

Question 14

Dismissal

Answer 14

Voluntary & Involuntary; with & without prejudice

Question 15

Voluntary dismissal

Answer 15

plaintiff non-suits the case

Question 16

Involuntary dismissal

Answer 16

can be done as a sanction, for want of jurisdiction, etc.

Question 17

Dismissal with prejudice

Answer 17

case has been determined on merits and decided against plaintiffs; cannot bring claim again (res judicata)

Question 18

Default Judgment

Answer 18

On defendant’s failure to plead or defend as required by rules, clerk enters “default”; can be judgment by clerk or court

Question 19

Default judgment by clerk

Answer 19

if liquidated (sum is certain; i.e. promissory note)

Question 20

Default judgment by court

Answer 20

If not liquidated. Court may require proof of damages (usually by affidavit)

Question 21

Setting aside default judgment

Answer 21

Under certain conditions

1. Existence of arguable defense on merits or disagree with amount of damages;
2. Excusable neglect
3. within 1 year of default