(1) After the initial case management conference, do you generally schedule any further conferences?
(E.g., status conference near or shortly after the close of fact discovery)
Salinger, J. During the initial case management conference, I typically will schedule another conference at the point when parties should know whether they will be seeking summary judgment. Sometimes that is at the end of fact discovery, and sometimes it comes after expert disclosures are complete.
Krupp, J. Yes. I will generally set a second Rule 16 conference or status conference 30-60 days before the end of fact discovery. The circumstances of a particular case may also warrant other case management conferences before trial (e.g., after a mediation, a stay of proceedings, an interlocutory appeal, the addition of a new party, a change in counsel, a material amendment of a pleading, etc.).
Squires-Lee, J. I will schedule a next date after the fact discovery cut-off that we collectively decide on at the Rule 16 conference.
Barry-Smith, J. I follow the same practice identified by Judge Krupp in BLS1.
(2) When do you typically schedule the final pretrial conference?
Salinger, J. We want to have the final pretrial conference as soon as all other pretrial work on the case is complete. If there is not going to be any summary judgment motion, that should be right after fact and expert discovery is complete. If one or more parties seek summary judgment, the final pretrial conference should take place soon after those motions are decided.
If your case is ready for a final pretrial conference that has not yet been scheduled, contact the session clerk (after speaking with opposing counsel, of course) and ask for one.
Krupp, J. The final pretrial conference should be held, and trial scheduled, as soon as the case is ready for trial. If a summary judgment motion is not definite, I will sometimes set a final pretrial conference date at the Rule 16 conference, and will schedule the summary judgment motion to be heard on the date set for, and either in lieu of or in addition to, the final pretrial conference.
Squires-Lee, J. I agree with Judge Salinger.
Barry-Smith, J. I follow the same approach identified by Judge Salinger. If the parties are ready to set a trial date but no final pretrial conference has been set, they should contact the clerk.
(3) At what point in the process do you set the trial date?
Salinger, J. I will usually not set the trial date until discovery is complete and any summary judgment motions have been decided. The next event will be a final pre-trial conference, requiring submission of a joint pretrial memorandum in advance; that is when I will set the trial date. The best way to get an earlier trial date is to finish discovery and dispositive motion practice without undue delay.
In the BLS we give everyone a firm trial date, and do not schedule multiple trials at the same time. That system would break down if we set a trial date before we know whether the case is heading for trial.
Krupp, J. I usually set the trial date at the final pretrial conference. In cases that are particularly cumbersome to schedule (e.g., cases that involve many parties, many out-of-state witnesses, many lawyers, speedy trial act issues, or a number of difficult-to-schedule expert witnesses, etc.), I will set the trial date at the case management conference. Often the duration of trial at that stage is a rough estimate, which must then be refined at the final pretrial conference.
Squires-Lee, J. I follow the procedure Judge Salinger detailed in BLS2.
Barry-Smith, J. I follow the same approach as Judge Krupp. The BLS has unusual flexibility when it comes to scheduling trial dates. If there is a good reason to set one earlier than the final pretrial conference (e.g., exceedingly difficult schedules for attorneys or witnesses), one or both parties can explain that to the clerk and a trial scheduling conference can be held.
(4) What information do you require parties to provide at pretrial conferences? Do you have a form or order regarding filings for the pretrial conference?
What degree of evidentiary detail do you prefer or require in the pretrial memorandum?
Salinger, J. I use the standard final pretrial conference order. Please make clear what claims and counterclaims are to be tried, and what issues you will need me or the jury to decide at the end of the trial. If it is a jury case, the joint description of the dispute to be read to the jury should be short and easy to absorb, providing only enough information for jurors to figure out whether they can approach the case with an open mind and be fair to both sides. As I discuss below, don’t forget to flag any choice of law issues as well as affirmative defenses that must be resolved at trial. In the summary of anticipated evidence, I want just enough detail to give me a rough idea of what the trial will be about. I like to read the joint pre-trial memo before the final pretrial conference.
Krupp, J. I use the standard form. I read the joint pretrial memorandum for several specific purposes. I want the parties to have prepared a robust description of the case to be read to the jury. Preparing this statement requires collaboration. It should contain facts about the case, and a description of each party’s respective arguments, in order to help the parties and the court detect relevant juror bias. When I receive a joint pretrial memorandum in which the parties have not been able to agree to a joint statement of the case, it loudly signals a problem between counsel. I want a real witness list, not a list of the 100 names of people who appear in the discovery. I want to know what work has to be done by the parties and the court in order to get the case to trial (e.g., pending motions, issues with experts, witness availability issues, anticipated motions to narrow the issues to be tried, counts that will be dismissed, etc.). And I am looking for a meaningful estimate of the duration of trial.
Squires-Lee, J. The joint pretrial memorandum should be fulsome and enable any judge to understand the case, the issues, the evidence, and the forthcoming trial upon review. It should attach all expert disclosures, so everything is in one place. A joint case description and realistic witness list is required. I too expect information about any outstanding issues to get the case ready for trial.
Barry-Smith, J. I use the standard form and expect that my review of the joint pretrial memorandum will provide me a realistic picture of what to expect at trial. The legal issues portion may be quite important to certain trials, but that does not mean each legal issue should include a multipage argument; it suffices to identify the issue and provide an overview of your argument. Presumably those legal issues will be the subject of a motion in limine or a different motion at or before the final trial conference. The pretrial memo is an opportunity to highlight the legal issues that will need attention—sometimes at the final pretrial conference, more often at the final trial conference, or sometimes not until jury instructions at the end of trial. Parties should identify those issues but need not include their full briefing, which will come later.
(5) Do you follow the standard pretrial schedule form or do you have a different preference or practice for pretrial scheduling?
How far ahead of trial will you schedule motions in limine and request the submission of jury instructions, exhibit lists, verdict forms, and other pretrial items?
Salinger, J. I always like to have a final trial conference, usually a week or two before trial. If you have unusually complex or difficult motions in limine that will take some time to decide, I will want to receive and hear argument on those motions further in advance of trial; in such a case, coordinate with opposing counsel and ask for a scheduling conference so we can work out a plan to get that done.
I will want to receive all voir dire requests, motions in limine with any opposition or other response, and proposed special verdict forms at least a few days before the final trial conference. The sooner that you can get me proposed jury instructions, the better.
Parties should confer before preparing and serving motions in limine, as required by Superior Court Rule 9C, to narrow areas of disagreement. I often receive motions in limine to exclude evidence that the opposing party does not intend to offer, or to impose some other restriction or requirement that the other side also thinks is a good idea. That is not a good use of anyone’s time.
Also, I want all motions in limine to be filed together with any opposition or other response. The parties may want to agree on shorter response times for motions in limine than are specified in Superior Court Rule 9A, but there is no motion-in-limine-exception from the procedural requirements in Rule 9A.
For jury-waived and other non-jury trials, Judge Squires-Lee and I now use the same procedural order in BLS2.
Krupp, J. I use the standard pretrial schedule form.
At the final pretrial conference, I will usually schedule a final trial conference a week or more before trial, depending on the anticipated issues; and will schedule the filing of motions in limine and motions related to voir dire a week or two before the final trial conference. Motions for voir dire should address whether a party is requesting a precharge to the prospective jurors during jury selection, or to the impaneled jurors before opening statements. In other sessions, I have allowed motions in limine to be filed directly, without complying with Superior Court Rule 9A, provided the motions are served on opposing counsel sufficiently in advance of the final trial conference so counsel can determine whether to oppose the motion. Increasingly in BLS cases, I have been ordering motions in limine and motions related to voir dire to be filed pursuant to Superior Court Rule 9A.
In cases involving thorny legal issues, I appreciate receiving jury instructions and the parties’ proposed verdict form early, although an early submission of instructions often must be supplemented or revised during the trial.
Squires-Lee, J. Final trial conference should be a week or two before trial. I expect all motions in limine, proposed jury instructions, requests for lawyer conducted voir dire, and agreed-to or competing special verdict forms a week in advance of the final trial conference with all motions in limine served and filed under Rule 9A or a shorter, agreed-upon timeframe, and Rule 9C.
Barry-Smith, J. At the final pretrial conference, I will schedule trial and a final trial conference to occur one or two weeks in advance of the trial date. I use the standard trial form, which requires, and I expect, all motions in limine, voir dire requests and jury instructions (and special verdict clips) to be submitted ay the final trial conference. One exception is that if Daubert-Lanigan motions may be scheduled earlier than the final trial conference, as discussed above. How much time we spend at the final trial conference discussing all of those submissions depends on the case. At the final trial conference, I will always discuss with the parties: i) all matters of scheduling; ii) the empanelment process, including the attorneys’ specific roles and questions to prospective jurors; and iii) motions in limine, which will be decided at or shortly after the final trial conference.
(6) Do you typically encourage the parties to pursue ADR? If you do so, when and how do you typically do it?
Salinger, J. I encourage mediation, not arbitration.
I regularly ask counsel what they are doing to help their clients resolve their dispute, and encourage mediation if that seems helpful.
Historically, when some parties think of ADR they have in mind private arbitration, believing that it can reduce costs and lead to a fairly quick and final decision. With agreement of the parties, however, a BLS bench trial can offer all the benefits of arbitration without losing the benefits of appearing before a Superior Court judge who is assigned to sit in the BLS.
Some corporate counsel are replacing arbitration clauses in commercial contracts with provisions that require any dispute to be resolved in the BLS with specified limits on discovery, a waiver of any right to a jury, a waiver of any right to detailed factual findings with an agreement that the judge will decide the case by answering special questions agreed-to by the parties, and perhaps even a limitation on appellate rights. Other attorneys handling a dispute with a contract mandating arbitration are proposing that both sides instead agree to file the case in the BLS.
If the parties want to streamline the litigation process in order to achieve benefits of ADR while adjudicating their dispute in the BLS, I am happy to work with them to do so.
Krupp, J. I generally ask the lawyers at a Rule 16 conference and at a final pretrial conference whether they have discussed resolving the case, including through the use of ADR. In situations where I will not preside over a case at trial, I have conducted judicial mediations in cases that are close to trial.
Squires-Lee, J. I frequently ask the parties about whether they have mediated or plan to mediate the case. I also offer judicial settlement conferences with my colleagues in BLS1 or who set in the time standards sessions. Judicial settlement conferences can be very helpful in resolving cases and the parties, if interested, should not hesitate to ask about them when they appear before me. I always make clear that delays in scheduling mediation will not delay the trial.
Barry-Smith, J. I encourage mediation and will ask at the Rule 16 conference and final pretrial conference whether you have made efforts to resolve the case.
(7) Typically, will you stay proceedings if the parties pursue ADR?
Salinger, J. Yes, so long as it is not on the eve of trial.
Krupp, J. Yes, but generally I will not continue a trial to allow ADR.
Squires-Lee, J. It depends. There is normally enough time between the final pretrial conference and the final trial conference and trial for the parties to pursue mediation without moving the trial date.
Barry-Smith, J. Typically, yes. If very close to trial, I will encourage the parties to have discussions and see if they might resolve the case, but am unlikely to continue trial to provide the months likely necessary to schedule and conduct a mediation.
(8) Do you have any other tips or preferences for pretrial practice?
Salinger, J. Here are a few more suggestions.
Contract Interpretation. If you are trying a case that turns on the meaning of a contract, you should raise any disputes or questions about contract interpretation before trial. Sometimes these issues are best resolved on a motion for summary judgment long before trial. But if they have not been, you may need to file a motion in limine asking the Court to decide whether particular provisions are ambiguous and will need to be construed by the factfinder at trial, or are unambiguous and will need to be explained by the judge to the jury or themselves. And, of course, if the judge concludes that a disputed contract provision is unambiguous you need to know before trial how the judge construes the contract. You do not want to discover in the middle of a trial that your theory of the case is inconsistent with the judge’s interpretation of your client’s contract.
Choice of Law: I prefer to know well before trial if the law of some other jurisdiction will govern part or all of the issues at trial. If there is a dispute as to choice of law, please raise it in a motion in limine and make sure that motion gets heard more than a few days before trial. If there is agreement that some other jurisdiction’s law governs, please make that clear in the joint pre-trial memorandum and flag it for me during our final trial conference.
Affirmative Defenses. Similarly, if any affirmative defenses as to which the defendant has the burden proof will have to be decided at trial, note them in the joint pre-trial memo and remind me of them during the final trial conference.
Admissibility of Evidence: I agree with what Judge Kazanjian wrote in a prior version of these Bench Notes. “Prepare your case with the laws of evidence in mind. Do not wait until you are in the middle of trial and the other side objects to start thinking about how the evidence you are seeking to admit is admissible.”
Krupp, J. No.
Squires-Lee, J. I agree with Judge Salinger. In addition, the parties should discuss their proposed evidence to streamline the trial. Agreement on exhibits is encouraged. The parties should review all applicable evidentiary rules in advance of trial.
Barry-Smith, J. Prepare your case with the laws of evidence in mind. Parties should know the basis for admissibility of each piece of evidence you expect to arise at trial. Also prepare your case with the audience in mind—focusing the jury, or judge, on what you believe they need to know and understand to decide the case. That approach often may not involve all the vast information that the attorneys have learned during the course of the litigation.
| Date published: | April 1, 2022 |
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| Last updated: | January 14, 2026 |