A lawsuit or criminal trial can be a complicated proceeding, taking months to resolve and, in some cases, even years. The process could turn into a free-for-all and never wrap up if the court didn’t monitor the proceedings, schedule steps along the way, and attempt mediation and compromises to help matters settle out of court.
A pretrial conference, referred to in some courts as a pretrial hearing or a status conference, lays the groundwork and establishes a timeline for a criminal case or civil suit. Some courts require pretrial conferences in civil cases, but either party to a suit can usually request one or more as well. The exact rules can differ from case to case and even from judge to judge.
When Are They Scheduled, and Who Attends?
Pretrial conferences usually take place at the beginning of a case, but always after all pleadings have been filed and before trial. They’re typically attended by the plaintiff, the defendant, their attorneys and the judge, but attorneys can appear without their clients in some cases. Some states allow a magistrate or civil court officer to sit in for the judge.
The Pretrial Memorandum
Both sides are typically required to file a memorandum with the court before the first pretrial conference, identifying their witnesses and listing the exhibits they intend to enter into evidence at trial. These documents give the judge a summarized idea of the contents of the case and the issues that must be dealt with at the case management pretrial conference.
Read More: What Is a Pretrial Conference in a Child Custody Case?
Types of Pretrial Conferences: Case Management
A case management conference is a type of pretrial conference that happens very early in the proceedings. The judge will typically create a calendar during this conference with deadlines for each side to finalize certain pretrial actions. The deadlines are entered into a scheduling order.
The judge might also pencil in a proposed trial date at this point, but the date is rarely set in stone. It’s more like a goal if everything proceeds according to schedule.
The judge will also identify the crux of the case at this conference – issues and facts that the defendant and the plaintiff disagree on to a significant degree. Some of these issues might potentially be resolved at the conference, taking them off the table, such as whether certain information is legally admissible at trial or if certain witnesses can and should testify. The sides can stop bickering about these matters and move on to other trial preparations.
An Opportunity for Pretrial Motions
Motions can be made at these early conferences as well, such as for summary judgment – one side believes that the other has no supportable case whatsoever and asks the judge to therefore dismiss the case.
The judge can rule right then and there, or he or she might want some time to take the matter under advisement. If so, another conference will be scheduled when the judge delivers his opinion, or the judge will order that the motion issue will be resolved at trial or in a separate court hearing.
Settlement Conferences and Mediation
The judge might order a settlement conference if it appears at the first pretrial conference that the parties might be able to resolve their dispute through arbitration or mediation. Courts in some states require this step for certain types of cases like custody disputes, sometimes even before the first pretrial conference.
Mediation involves a neutral third party who attempts to guide the parties to a negotiated agreement or settlement. The neutral third party can actually issue a decision in arbitration, but the decision can be appealed. The matter can proceed to trial anyway if either litigant is particularly unhappy with it.
In other cases, the judge might mediate the case personally at the conference or prompt each side to submit a proposed settlement in an effort to achieve resolution without a trial. The judge might indicate how he or she is likely to rule at trial given the current facts of the case. However, the opinion isn’t binding, and it could well change at trial when and if additional evidence is presented. The judge’s pretrial conference opinion merely gives the plaintiff and the defendant some food for thought as to what they’re up against if the case proceeds to trial.
Streamlining the Trial: The Issue Conference
An issue conference can take place when and if it becomes clear to the judge that the parties are not going to settle – one or both of them really wants to go to trial, or their positions are just too far apart to find any middle ground. This conference is often attended by only the judge and the lawyers involved in the case, not their clients.
Each side will “stipulate” to certain facts presented by the other or agree to “admissions of fact” or admission of certain evidence. For example, Joe and Sally might be involved in a custody dispute because Sally wants to relocate out of state with their children, and Joe doesn’t want them to go. Sally’s attorney might stipulate or agree that Sally intends to live in Poughkeepsie, New York, at a certain future date. The exact location won’t be disputed at trial because it’s effectively taken off the table when Sally’s lawyer agrees that she wants to go to Poughkeepsie, not Sacramento.
Removing issues like this and eliminating facts that must be litigated streamline the actual trial proceeding, so there’s not as much left to be decided at that time. In fact, judges in some states can deliver a decision on the spot at the issue conference, ordering a trial to be conducted right then and there if eliminating certain issues leaves very little to be decided. The judge can’t issue a decision without conducting a trial, however, even if it's spur of the moment.
Pretrial Conferences in Criminal Court Proceedings
These rules and types of pretrial conferences are common in civil litigation, but criminal court proceedings can be different. Some criminal cases do include pretrial conferences for DUI or pretrial conferences for domestic violence cases, however, at which the prosecutor might propose a plea bargain and the accused defendant can accept it or negotiate its terms.
Criminal Court Preliminary Hearings
Preliminary hearings are common in criminal cases, but these aren’t technically considered to be pretrial conferences because they take place in a courtroom where parties are placed under oath. A whole slate of different, less relaxed, rules can apply.
Preliminary hearings are similar to pretrial conferences, however, in that the judge will decide if sufficient evidence exists against the defendant to charge him with the crime and proceed to a trial. Both the prosecution and the defense place all their cards on the table for the judge to decide at a pretrial conference, for example, whether a crime really was committed, and whether evidence suggests that it was likely committed by the defendant.
In all cases, pretrial conferences in civil and criminal litigation outline what everyone can expect going forward, so the case can move through the judiciary system in a timely manner.
- American Bar Association: How Courts Work
- LegalMatch: What to Expect at a Pretrial Hearing
- Fitch Law Partners: What Happens at a Pre-Trial Conference?
- U.S. District Court, District of Kansas: Rule 16.2 Pretrial Conferences
- Legal Information Institute: Rule 16 Pretrial Conferences; Scheduling; Management
- The McKinney Law Group: What Happens at a Pretrial Conference?
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.