This list is based on our firm’s extensive pre-trial conference experience both conducting and consulting on pre-trial conferences.
- Persuasion. The goal of the pre-trial conference is to persuade the Judge to see the case your way and to express a judicial impression to the other parties.
- Concise. Judges are extremely busy, often with multiple pre-trials, each pre-trial having multiple pre-trial conference briefs. Simply put, they don’t have time to read long pre-trial conference briefs and they don’t have lots of time to discuss your case. An effective pre-trial conference memorandum is only a few pages long and an effective pre-trial brief may be 50 – 100 pages, but the shorter the better (length somewhat hinges on the length of pleadings, key documents and expert reports included in the brief).
- Parties. Parties / clients need to be prepared for the pre-trial conference. They should have a solid grasp of their case, its strengths and weaknesses, a realistic case valuation, have reviewed the pre-trial conference briefs and know what to expect at the pre-trial conference. It is not the Judge’s role to educate the parties / clients.
- Witnesses. Pre-trial conference briefs should have a list of witnesses, including the party / client, lay witnesses, participant experts and rule 53 experts.
- Experts. Expert reports are due before the pre-trial and should be contained in the pre-trial conference brief. The pre-trial conference memorandum should summarise an expert report in 1 paragraph or less.
- Documents. A focused selection of key documents can be included in the pre-trial conference brief.
- Unlike mediation. Pre-trial conferences are not like mediation. While there is the potential to settle the case, pre-trial is not the time for a drawn out haggle over positions.
- Rule 49 offers. Rule 49 offers should be exchanged prior to the pre-trial conference so they can be reported to the presiding Judge. The rule 49 offers should be realistic and beatable, reflective of thoughtful case valuation.
- Trial management. It is necessary to be familiar with the types of trial management issues that may arise at a pre-trial conference. Reviewing witness lists and estimating the length of trial is one of several trial management issues.
- Reputation. Pre-trial conferences are great opportunities to get to know Judges, as they cannot preside at trial and the atmosphere is somewhat relaxed. Pre-trial conferences should be conducted bearing in mind that a trial on another case may be before the same Judge.
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