preserving the record

Charles P. Seheeler, Esq.John C. Dougherty, Esq.Piper & Marbury

November, 1991

Examolfi

ds f 1r

B333imiiian

n Bef

^••15fcE=I***Eel

l.Z04307B:10/24/91

1-609348

"In exceptional circumstances,especially criminal cases, appellatecourts, in the public interest, may, oftheir own motion, notice errors towhich no exception has been taken ifthe errors are obvious, or if theyotherwise affect the fairness,integrity, or public reputation ofjudicial proceedings." United StatesV. Atkinson, 297 U.S. 157, 160 (1936).

Counsel should not rely upon the plain errorrule, however, in failing to object or offerproof in any situation.

Roias V. Richardson. 703 F.2d 186, 190-92(5th Cir. 1983). Defense counsel*s use ofthe term "illegal alien" to describeplaintiff in personal injury case warrantedreversal of judgment in favor ofdefendants. Although there was no objectionat trial, the remark was "highly prejudicialand a blatant appeal to jury bias"ammounting to plain error.

A motion for judgment notwithstanding the verdictwill not lie unless it was preceded by a motionfor a directed verdict at the close of all theevidence. See Fed. R. Civ. P. 50(b).

This topic will be covered in a separate outline.

PRETRIAL PROCEDURE

Andrew Jay Graham, Esq.Kramon & Graham

November, 1991

luahiaiyawB . r

T3 Tv

SCHEDULING AND CASE MANAGEMENT

A. Scheduling.

1. Scheduling order.I

Under Rule 16(b) the judge or magistrate

judge, when authorized by a District Court rule,

after consulting with the attorneys and any

unrepresented parties shall enter a scheduling

order that limits the time:

(1) to join other parties and to amend

pleadings ?

' (2) to file and hear motions; and

(3) to complete discovery.

This Rule is mandatory. It is optional for

the judge to include in the scheduling order the

date or dates for conferences before trial, a

final pretrial conference and trial.

This scheduling order shall issue as soon

as "practicable" but in no event more than 120

days after the filing of the complaint. This

schedule shall not be modified except by leave

of the judge or magistrate and upon a showing of

good cause. Note that the scheduling order is

supposed to be entered after consulting with the

attorneys and unrepresented parties and that*

this consultation is supposed to take place by

f •3Vajpretrtal.pro

02:jmu:11/18/91:431/a:pretPial,pro

means of a schedullti? conference, telephone,

mail or other suitable means, giving the court

considerable discretion concerning the lengths

to which it wishes to go in terms of this

consultation.

2. Counsel's reaction to scheduling order,

a. Dates should be noted on the calendar.

b. Parties and witnesses should be notified

promptly of dates which will require their

attendance.

c. When the Scheduling Order presents problems

(conflicts with other matters, discovery

strategy, etc.), counsel should consult,

agree on appropriate modifications and

obtain the court's consent thereto.

d. Failure to obey a Scheduling Order will

result in sanctions.

3. Changes to scheduling order.

Only with leave of Court,

4. Failure to comply.

Sanctions.

Pretrial Conferences.

1- Number of conferences.

The court may require one or more

scheduling or status conferences.

02:jniH:11/18/91:431/a;pretrial.pro

Subi acts.

Subjects discussed include simplificfition

of issues, amendments, identification of

witnesses, settlement, obtaining admissions and

advance rulings on evidentiary issues. Attorney

must have authority to stipulate and make

admissions.

Counsel*s duties.

Counsel has a duty to be prepared, to

attend, and to participate in good faith. Rule

16(f) provides that if a party or party*s

attorney fails to obey a scheduling or pretrial

order or fails to appear or the party or the

party's attorney is substantially, unprepared to

participate, or fails to participate in good

faith, the judge either upon motion or his own

initiative may make such order as is just,

including any of the orders provided in Rule

37(b)(2)(B), (C) and (D). In lieu of or in

addition to any other sanctions the judge may

require the party or the attorney representing

the party or both to pay the. reasonable expenses

incurred because of any non-compliance with the

Rule, including attorney's fees, unless the

judge finds that the non-compliance was

siibstantially justified or that other

circunstances make the award of expenses unjust.

4. Special situations.

Where the case is entitled by statute to

expedited treatment or where the case will

involve lengthy discovery, counsel should

reguest a conference with the court as early as

possible after the case is filed.

C. Final Pretrial Conference.

1. Timing.

As close to trial as is reasonable.

2. Subi ects.

Rule 16 sets forth matters to be covered at

pretrial conference. Counsel should be prepared

to discuss factual and legal issues of. the case,

matters to which they will stipulate, a program

to facilitate the admission of evidence, the

witnesses to be called and possibilities of

settlement. Trial counsel must be present.

3. Responsibilitv for preparation of pretrial

order.

Local Rule 106 provide that plaintiff's

attorney shall draft and submit to other side

fifteen days before due, but all counsel are to

participate in formulation of order.

02: Jmu: 11/18/91:4 3631/a:pretrial.pro

€

4. Contents of pretrial order.

Statements by both sides of facts upon

which they will rely to prove claims or

defenses, amendments required of pleadings,

issues to be abandoned, stipulations, details of

damage claims, listing of documents to be

offered at trial, listing of experts and their

specialties and other pretrial relief which

either side requests.

5. Time estimates for trial.

It is the obligation of counsel for both

sides to provide the court with a realistic

estimate of the time required for trial.

AMSNDMSNTS

A. Permissible Amendments.

02:jmH!l1/18/91;431/a:pretrial.pro

A party may amend his or her pleading once as a

matter of course at any time before a responsive

pleading is served or, if a pleading is one to which

no responsive pleading is permitted and the action

has not been placed on the trial calendar, the party

may so amend it at any time within twenty days after

it is served. Otherwise, a party may amend only by

leave of court or by written consent of the adverse

party.

B. Standards.

Leave to amend shall be freely given when

justice so requires.

A party shall plead" in response to an amended

pleading within the time remaining for response to

the original pleading or within ten days after

service of the amended pleading, whichever period may

be longer.

D. Amendments After Trial.

Rule 15(b) permits an amendment of pleadings to

cause them to conform to the evidence adduced at

trial. The Rule also provides that if issues were

not raised by the pleadings but were tried by the

expressed or implied consent of the parties, they

shall be treated as if they had been raised in the

pleadings, and there shall be granted such amendments

to the pleadings as may be necessary to raise these

issues. Such amendments after the trial has occurred

shall be made by motion at any time, even after

judgment. The failure so to amend does not affect

the results of the trial of these issues.

E. Relation Back.

Rule 15(c) provides that when a claim or defense

asserted in the amended pleading arose out of the

02:iniH:11/18/91:431/a:pretrial.pro

conduct, transaction or occurrence attempted to be

02:jmw:11/18/91;431/a:pretrtal.pro

set forth in the original pleading, the amendment

relates back to the date of the original pleading.

An amendment changing the party against whom a claim

is asserted relates back if the foregoing provision

is satisfied and, within the period provided by law

for commencing the action against the party to be

brought in by amendment, that party (1) has received

such notice of the institution of the action that the

party will not be prejudiced in maintaining his

defense and (2) knew or should have known that, but

for a mistake concerning the identity of the proper

party, the action would have been brought against the

party. This Rule is effective until December 1,

1991.

As of December 1, 1991, subsection (c) shall

provide that the pleading relates back to the date of

the original pleading when (1) relation back is

permitted by the law that provides the statute of

limitations, or (2) the claim or defense asserted in

the amended pleading arose out of the conduct,

transaction or occurrence set forth or attempted to

be set forth in the original pleading, or (3) the

amendment changes the party or the naming of the

party against whom a claim is asserted if the

foregoing provision (2) is satisfied and, within the

period provided by Rule 4 for service of the summons

1

and complaint, the party to be brought in (A) has

received such notice of the institution of the action

that he will not be prejudiced and (B) knew or should

have known but that for a mistake concerning the

identity of the proper party the action would have

been brought against him or her.

F. Supplementij^l Pleadings.

Rule 15(d) provides that upon a motipn of a

party, the court may permit the party to serve a

supplemental pleading setting forth transactions or

occurrences or events which have happened since the

date of the pleading sought to be supplemented.

Permission may be granted even though *^e original

pleading is defective in its statement of a claim..

The adverse party needs to plead to the supplemental

pleading only if the court by order so specifies.

III. COUNTERCLAIM

A. Rule 13.

1. Compulsory.

A compulsory counterclaim must be asserted.

A counterclaim is compulsory•if it arises out of

same transaction or occurrence. However, if

unavailable third parties are required,

assertion excused.

02:jnM:11/18/91:431/a:pretrial.pro

40

2. Permissive.

Any claim against opposing party not

arising out of transaction or occurrence mav be

asserted.

THIRD PARTY PRACTICE

A. Rule 14.

02:jfnH:11/18/91:431/a;pretrial.pro

1. Provisions.

Claims against any third party who is or

may be liable to third party plaintiff for all

or part of plaintiff's claim against third party

plaintiff. .

2. Timing.

File within ten days of serving answer.

Otherwise, court approval on motion.

3. Rights of third party defendant.

Third party defendant may assert against

plaintiff and against third party plaintiff any

claims arising out of the siibject matter of the

third party claim.

4. Defenses.

Third party defendant may assert against

plaintiff any defenses available to third party

plaintiff. •

5. Severance.

Any party may move for severance or

separate trial of third party claim.

DISCOVERY

1. Scope.

02:jmw:11/18/91:431/a:pretrial.pro

The scope of discovery is any matter, not

privileged, which is relevant to the subject

matter of the pending action. The information

need not be admissible, so long as it is

reasonably calculated to lead to the discovery

of admissible evidence.

Special attention should be paid to the

discovery of experts and their opinions. Rule

26(b)(4).

Insurance.

A party may obtain discovery of the

existence and contents of any insurance

agreement under which any person or company may

be liable to satisfy part or all of a judgment

in the case. The information concerning the

insurance agreement is not, of course,

necessarily admissible in evidence simply

because it is discoverable. Rule 26(b)(2).

Supplementation.

With certain exceptions, a party that wants

the other party to supplement previous discovery

responses should request supplementation prior

02:jrnH:11/18/91:431/a:pretrial.pro

to trial. Rule 26(e). Under Rule 26(e) a party

who has responded to a request for discovery

with a response that was complete when made is

under no duty to supplement except as follows:

a party is under a duty seasonably to supplement

the response to a question directly addressed to

the identity and location of persons having

knowledge of discoverable matters and the

identity of each person expected to be called as

an expert witness, the subject matter on which

the expert is expected to testify and the

substance of his testimony. A party is also

under a duty seasonably to amend a prior

response if the party obtains information on the

basis of which he or she knows that the response

was incorrect or the party knows that the

response, though correct when made, is no longer

true and the circumstances are such that a.

failure to amend the response is in substance

knowing concealment. A duty to supplement may

also be imposed by order of court, by agreement

of the parties or through new requests for

supplementation of prior responses filed by any

party.

5. Court control.

The court has control over the frequency

and extent of use of discovery methods to keep

the discovery proportionate to the size and

needs of the case. Rule 26(b) The frequency or

extent of use of the discovery methods provided

shall be limited by the court if it determines

that the discovery is unreasonably cumulative or

duplicative or that it is obtainable from some

other source that is more convenient or less

burdensome or expensive, or if the party seeking

discovery has had ample opportunity by discovery

to obtain the information or if the discovery is

unduly burdensome or expensive taking into

account the needs of the case, the amount in

controversy, 1imitations on the party's

resources and the importance of the issues at

stake in the litigation. The cour^: may act upon

its own initiative in this regard.

6. Good faith.

Signing by counsel of discovery requests,

responses or objections certifies that it is

necessary, reasonable and not in bad faith.

Violation will subject the party and counsel to

sanctions. Rule 26(g).

02: joM:11/18/91:4 4431/a:pretrial.pro

02:jfnw:11/18/91:431/a:pretrial.pro

There is np priority of discovery, but

counsel can obtain necessary protection through

a protective order. Rule 26(d). Rule 26(d)1

provides that methods of discovery may be used

in any sequence and the fact that one party is .

conducting discovery shall not operate to delay

in the other party's discovery; i.e., there is

no rule that the first party to have commenced

discovery shall complete any portion of it

before the other party is entitled to proceed

with discovery.

Discovery conferences.

The Court shall hold a discovery conference

upon the motion by any attorney. Attorney must

include statement of issues, proposed plan,

limitations proposed on discovery, other

proposed orders and a statement showing that

reasonable efforts to reach agreement failed.

Depositions.

1. Timing.

Generally, the plaintiff may not take

depositions until 30 days after service of the

complaint. Rule 30(a). Leave of court is not

required to take a deposition before the

expiration of a thirty day period if the person

k'

02: Jnw: 11/18/91:431/a:pretrial.pro

to be examined is about tp go out of the

district and more than one hundred miles from

the place of trial or is about to go out of the

United States. Then notice must set forth the

facts supporting that contention and the

attorney must sign it, subject to Rule .11

sanctions. The deposition may not be used

against the party, however, if the party shows

that when he or she was served with the notice,

he or she was unable through the exercise of

diligence to obtain counsel to represent him or

her at the taking of the deposition.

2. Telephone depositions. ^ ,Telephone depositions pan be taken upon

stipulation or by court order. Rule 30(b). The

deposition is deemed taken in the district where

the deponent answers the questions. •

3. objections.

Objections during depositions are not

necessary unless they go to a matter which can

be cured if raised at that time. Rule 32(d).

4. video depositions.

Video depositions may be taken under Rules

26 and 30. Transcript should be obtained in

addition to tape. Several local companies

provide service.

46

Ei ..•- -

-^>.1

1-';• -

02:jtTiw:11/18/91:431/a:pretrial.pro

Place,

A person to whom a subpoena for the taking

of a deposition is directed may be required to

attend at any place within one hundred miles of

the place where he or she resides, is employed

or transacts business in person or is served, or

at such other convenient place as may be fixed

by the court.

Fees.

Subpoenas for witnesses must be accompanied

by a check for the witness fee and mileage.

Rule 45(b).

Service.

Subpoenas are not served by the U.S.

Marshal. Counsel must make private

arrangements.

New Rule 45.

Completely re-writes the subpoena rule.

Important changes include: Attorneys can issue

subpoenas themselves and can be "fined" for

abusing the process; subpoenas may be issued to

compel production from non-parties, without

noting a deposition; the party summoned has 14

days to object, and, if objection is made, the

discoverer may seek judicial enforcement; and

provides for imposition of appropriate

m'[I

Ir

condlliions on depositions, etc., to protect,

inter alia, trade secrets and unretain^d

experts* opinions.

9. New Rule 34.

New Rule 34 allows Rule 34 requests for

production to be made directly upon a non-party

by subpoena.

10. Pre-litiaation.

Rule 27 allows depositions before action is

filed or pending appeal to perpetuate testimony.

Verified petition shall be filed in District

Court in district of residence of expected

adverse party. Petitioner must show that he/she

±o i)e ^ ^par^ dn ^ f<?dpra1. antinn Jaut Is

presently unableF to~ commence' it^ mustr fefctALij- Lh^

subject matter, must state the facts that

petitioner desires to establish and the reasons

for perpetuating it, must identify the persons

petitioner expects to be adverse parties and

must identify persons to be examined and the

substance of the testimony expected.

Court can issue order authorizing such

depositions to perpetuate testimony.

Petitioner shall then serve a notice on

each person named in the petition as adverse,

together with petition, indicating that petition

02: Jrm:11/18/91:4 4831/a:pretrial.pro

^ 02: jiTw; 11/18/91:4^ 31/a:pretrial.pro

will apply for order. Note specific time

limitations regarding service of notice.

Such depositions may be used at trial of

svibseguent action.

Phvsical and Mental Examinations.

1. Rule 35.

Under Rule 35 Court may order physical or

mental examination of party if mental or

physical condition in controversy. Good cause

must be shown on notice to person to be examined

and all parties. Must specify time, place,

manner and conditions of examination. Non-

moving party and person examined entitled to

copies of report.

2. Qualifications of examiner.

Under new Rule, any suitably licensed or

certified examiner. Court may assess

credentials of examiner. Purpose of Rule to

encourage exercise of discretion by court, which

can question qualifications.

Discoverv Disputes.

1. Discoverv issu^.

Party may raise discovery issue by motion

to compel pursuant to Rule 37.

02:jnM:11/18/91:431/a:pretriel,pro

Local Rule 104(7) provides that counsel

shall confer with one another about discovery

disputes and make sincere attempts to resolve

them. The court will nob consider any discovery

motion unless the moving party has filed a

certificate reciting the particulars of the good

faith efforts to resolve the dispute or his or

her attempts to hold a conference without

success. Local Rule 104(8) provides that a

party who contends that answers to

interrogatories or requests for production are

inadequate, shall serve a motion to compel

within twenty days of his receipt of the

response. A memorandum shall indicate the

alleged insufficiency of the response. The

opposing party shall serve a memorandum in

opposition within fourteen days, and a reply

memorandum may be filed eleven days thereafter.

The parties file with the court notices of

service of the motion and memorandum but not the

motion and memorandum themselves. The parties

can extend additional time to one another

without court approval, so long as this does not

conflict with the scheduling order. The parties

must then confer. If they fail to resolve their

differences during the conference, the parties

seeking the motion to compel shall file the

certificate required by Local Rule 104.7 and the

original and two copies of the motions and

memoranda.

3. Costs.

Costs may be assessed against loser.

4 • Nost<

Local Rule 104(3) provides that the

existence of a discovery dispute as to one

matter does not justify delay with respect to

any other discovery. However, the filing of a

motion under 12(b)(2) does stay discovery except

as to facts relating to the issues raised in the

motion.

E. Discovery Conference.

1. Request.

Upon request by counsel under Rule 26,

court may conduct discovery conference.

SUMMARY JUDGMENT

A. Timing.

02:jmw:11/18/91:431/a:pretrial.pro

Party asserting, a claim may move for svimmary

judgment at any time after expiration of 20 days from

commencement of action for partial or complete

judgment upon a claim, counterclaim or cross claim.