(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.).
Kazanjian, J.: Yes. It may depend on the case, but I will likely follow Judge Krupp’s practices in BLS1.
Ricciuti, J.: Same as Judge Salinger. The parties should not hesitate to ask for a conference when it would be helpful.
(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.
Kazanjian, J.: As soon as discovery is complete and any Rule 56 motions are done.
Ricciuti, J.: Same as J. Salinger, except that I strongly encourage the parties to seek final pre-trial conferences if it will facilitate earlier disposition, such as when scheduled expert discovery is no longer needed.
(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. 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 give cases trial dates far 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.
Kazanjian, J.: I will generally set the trial date at the final pretrial conference. However, sometimes it is helpful to schedule a trial date earlier in the case.
Ricciuti, J.: Same as Judge Salinger.
(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. 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. Like Judge Kazanjian, 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.
Kazanjian, J.: I urge counsel to spend time in advance working together on the joint pretrial memorandum. It should represent counsel’s best effort to resolve any disputed issues. You really should be able to agree on a statement of the case. The statement of the case is not the place for partisan advocacy. You should present a realistic witness list. I like to read the joint pretrial memo before the conference, so please do not wait to file it until you get to court.
Ricciuti, J.: I agree with my colleagues. Like them, I expect, and will strongly urge, the parties to eliminate unnecessary witnesses and issues through stipulations, agreements, dismissal of claims or defenses and the like. Witness lists should reflect expected witness (not, for instance, record keepers, who are almost always unnecessary), and realistic estimates of trial days needed. I also expect the joint pre-trial memo in advance of the conference.
(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.
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.
Kazanjian, J.: I will schedule a final trial conference a week or two before the scheduled trial date. I usually do that at the final pretrial conference. I will also inquire at the final pretrial conference if you intend to file any evidentiary or complex motions in limine, such as Daubert motions. You need to be prepared at the final pretrial conference to alert the court about any such motions. I will schedule a hearing for those motions in advance of the final trial conference. Motions in limine should be filed a week before the final trial conference. They should be filed pursuant to Superior Court Rule 9A. Parties should also file requests regarding voir dire, jury instructions and proposed verdict slips the week before the final trial conference.
Ricciuti, J.: I agree with Judge Salinger and strongly agree that every pre-trial motion, including motions in limine, are subject to Rules 9A and 9C. Like Judge Krupp, I prefer to receive jury instructions and any related motions on difficult legal issues as early as possible, preferably at the final pre-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.
Kazanjian, 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.
Ricciuti, J.: I will affirmatively ask the parties what efforts have been made to resolve the case at any pre-trial hearing, so the parties should be prepared to answer this question at any point. In some cases, I have had the parties themselves, not just their counsel, appear in court where appropriate to discuss ADR.
(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.
Kazanjian, J.: Yes, but not on the eve of trial. I will not necessarily continue a final pretrial conference based on a last-minute representation that the parties have decided to mediate the case. If you seek a continuance or stay of any kind due to a decision to mediate, please note the date of the mediation in your motion.
Ricciuti, J.: Generally yes, and sometimes on the eve of trial if the facts support that result and the parties show that the benefit is worth the cost of the delay.
(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.
Krupp, J.: No.
Kazanjian, J.: No.
Ricciuti, J.: Same as Judge Salinger. In addition, I will want to discuss early on the circumstances under which whether younger lawyers will be given opportunities to participate at trial.
| Date published: | April 1, 2022 |
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