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These materials give specific information about the procedures that a litigant must follow in a suit in the San Antonio Division of the United States District Court for the Western District of Texas. Different requirements may apply under the Local Rules and standing orders of other federal courts outside the Western District of Texas. Also, the information presented in these pages is for educational purposes only, and does not constitute legal advice. Every case is different, and the correct legal answer always depends on the facts of the individual case. If you want a legal opinion about your own case, you should seek help from a licensed attorney.The pre-trial order is a packet of information that quickly orients the judge to every important aspect of the case. Because you started the lawsuit, it is your duty to file a proposed pre-trial order by the deadline set in the scheduling order (usually two weeks before the trial date). Failing to submit a proposed order on time could cause you to lose the lawsuit or suffer other sanctions by the judge. Pre-trial orders are described in Rule 16(b) of the Federal Rules of Civil Procedure and Rule CV-16 of the Local Rules for the Western District of Texas.
The pre-trial order is important for several reasons. First, the judge has hundreds of cases pending at any one time, and probably will not take time to think about many of the details of your case until the day of trial. Many judges rely very heavily on the pre-trial order to get an idea of what to expect in the trial. Also, preparing the order helps you organize all of the details and issues you have to consider for the trial. And finally, a well-done pre-trial order will show the defendant that you are prepared to fight as hard as possible to win, increasing the chances that the defendant will offer you a good last-minute settlement.
Appendix B-2 of the Local Rules contains a form for the pre-trial order. You should also check with the judge's law clerk to find out if the judge in your case has a special form for the pre-trial order (most judges have their own preferred form). If you don't understand parts of the pre-trial order, look at the explanations in the attached sample, and check the Federal Rules of Civil Procedure and the Local Rules for more information. Also, you could ask the district clerk to allow you to examine the pre-trial order in a recent employment law case before the judge, as a model for what you submit.
As with the scheduling order, the Local Rules require the parties to try to agree on a proposed pre-trial order. You should begin working on the order at least a month before it is due. To prepare the order, go through each item in the form and fill in the information, to the best of your ability. It may be helpful to go look at the district clerk's file on your case, which contains thorough records about all the pleadings and motions that have been filed, and all the orders that have been entered. Once you have filled in the form to the best of your ability, provide a copy to the defendant (at least one week before the order is due) and politely ask the defendant to complete the parts that apply to the defendant. Then put the order in final form, get the defendant to sign it, and file it with the court.
If you cannot agree with the defendant's attorney about the form of the order, you should file a proposed pre-trial order that contains everything the parties were able to agree to put in the order. You should also includes a full explanation of any parts of the order that are a source of conflict or disagreement. If the defendant does not respond in sufficient time to allow you to finish the order, submit what you have and explain what happened to the court.
Here's a blow-by-blow explanation of the pre-trial order form found in the Local Rules for the Western District of Texas:
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
| YOUR NAME, Plaintiff | ) |
| ) | |
| v. | ) |
| ) | |
| DEFENDANT(S) NAME(S), Defendant(s) | ) |
PRE-TRIAL ORDER
A pre-trial conference was held in the above-entitled cause before Honorable JUDGE's NAME, on DATE OF PRE-TRIAL CONFERENCE. Plaintiff appeared pro se. DEFENDANT'S ATTORNEY appeared as counsel for the defendant.
1. The following jurisdictional questions were raised and disposed of as hereinafter indicated:
A "jurisdictional question" is a question about whether the court has legal authority to hear the case. A jurisdictional question comes up when either side argues that this case (or any part of the case) does not belong in this particular court, but belongs instead in state court or in the federal court of a different state. Any jurisdictional issues probably would be raised by the defendant in the answer or in a Motion to Dismiss made under rule 12 of the Federal Rules of Civil Procedure, so you should ask the defendant to provide a statement of these issues. If you yourself have raised a jurisdictional issue (in response to a counterclaim, for example), describe the issue in one sentence. If no jurisdictional question has been raised, say so.
2. The following disposition was made of pending motions or other similar matters preliminary to trial:
This item requires you to tell the court what motions were made in the case and what the judge did in response. (NOTE: Many pre-trial order forms simply require you to list only the motions that haven't yet been decided.) Here, you would list every motion that has been made by either side, the date on which it was made, the date of the court's order granting or denying that motion, and a brief phrase describing what the court did in the order. If any motion is still pending, state that it is pending. Check with the district clerk to see if you can get a printout listing the motions and the status of each motion.
3. In general, the plaintiff claims:
In one or two brief paragraphs, summarize the case and each of your legal claims. For example:
Plaintiff Mary Smith, a 55-year-old woman, was fired from her job as a professional secretary 3 months after defendant Bob Jones became her supervisor and six months before her retirement benefits vested. During the 3 months Smith worked for Jones, Jones made statements indicating that he would rather have a younger woman working as his secretary. Smith was replaced by a 25-year old woman with no prior secretarial experience. Smith was unable to find work after her termination, and learned that Jones had told one prospective employer Smith was a "stuffy, uncooperative employee who just didn't measure up to the job." In this suit, Smith alleges the termination constituted (1) age discrimination in violation of the Age Discrimination in Employment Act and the Texas Human Rights Commission Act and (2) sex discrimination in violation of Title VII of the Civil Rights Act and the Texas Commission on Human Rights Act. Smith also asserts that Jones's statement to her potential employer was defamation under the common law of Texas.
4. In general, the defendant claims:
This section will be a brief summary of the defendant's claims. Check with the defendant's attorney to find out what the defendant wants to put here, since this is the defendant's part of the order. It is OK if you disagree with what the defendant says here -- you're not admitting anything to the court by putting this in the pretrial order.
5. The following facts and issues not in genuine dispute are established by the pleadings or are established by the stipulations or admissions of counsel:
This is the place to list the "non-controversial" facts in the lawsuit that are relevant to your legal claims. These might include, for example, the fact that you were employed by the defendant, your rate of pay and any benefits you received,the number of employees employed by the defendant, the dates when you began and ended your employment, and other similar facts described in the pleadings, admitted in response to a "Request for Admissions," or otherwise agreed to by both sides.
The purpose of agreeing on undisputed facts is to cut down on the amount of evidence the parties have to offer at trial.
6. The contested issues of fact are:
This asks for a list of the disputed fact questions in the lawsuit--that is, the facts either side needs to prove in order to win, that the parties still disagree about.
Fact issues involve questions about what happened in a particular case. The issues you list will be specific to the lawsuit. If an element of your claim is not established by a fact listed in #5, above, you should include contested fact issues for each of the facts that will help to establish that element. For example:
- Did Plaintiff's supervisor, Mr. Jones, intend to retaliate against the Plaintiff when he issued a written disciplinary notice to her on August 8, 1997?
- Was the Defendant's "business reason" for Plaintiff's termination merely a pretext for unlawful discrimination?
- Did Defendant have notice of the alleged acts of sexual harassment by Mr. Roberts before the Plaintiff was instructed on March 3, 1995, to attend an out-of-town conference with Mr. Roberts?
- What economic damages did the Plaintiff suffer as a result of the termination?
7. The contested issues of law are:
This asks for a list of the disputed legal issues in the suit. Legal issues involve questions about what the law means in a given fact situation. You can find these issues in the pre-trial motions that remain pending. For example:
- Is evidence of the short time period between the plaintiff's report of sexual harassment and her receipt of a disciplinary write-up evidence of retaliatory intent for purposes of Title VII?
- If the evidence conclusively establishes that the employer's "legitimate business reason" for terminating the plaintiff was false, is the plaintiff entitled to summary judgment on his Title VII claim?
- Does an employer have notice of sexual harassment, when the employee who suffers the harassment complains to a co-worker, who reports the employee's complaint to a supervisor?
- Is loss of credit reputation a recoverable element of economic damages under Title VII?
8. The following exhibits were marked and received in evidence.
[You should attach to your proposed order a list of the Plaintiff's exhibits and a list of the Defendant's exhibits.]
Except as otherwise indicated, the authenticity of the exhibits on the accompanying lists has been stipulated, but they are to be received subject to objections of the opposing party, if any, at the pre-trial conference, to their relevance and materiality. If other exhibits are to be offered and their necessity can be reasonably anticipated, they will be submitted to opposing counsel at least ten days prior to trial. Written stipulations with reference to all exhibits exchanged or identified have been prepared as required by Local Rule CV-26.
To prepare your exhibit list, gather together all the documents you may need to use at trial to prove your case. Local Rule 26(b) explains how to mark and number the exhibits. Prepare a list, beginning with Exhibit P-1, that briefly describes each item. Give this list to the defendant, together with a copy of each exhibit, and ask the defendant to indicate any objections to the documents. When your list is in final form, you will note any objections beside each item on your list.
Meanwhile, the defendant will have prepared its own exhibit list for you to review. You should have copies of all the documents. First, check through the list to confirm that each documents is genuine and that it hasn't been altered. If you are suspicious that a document has been falsified, indicate to the defendant that you will not stipulate to the authenticity of the document. "Stipulating to the authenticity" of a document simply means agreeing that the document is what the opponent says it is, rather than a forgery, and that it hasn't been altered. Stipulating to authenticity does NOT mean that you agree to the truth of whatever is said in the document.
For example, let's say the defendant wrote you a letter on March 6th responding to your accusation and now wants to use that letter as an exhibit. If the copy marked as an exhibit is identical to the letter you received, you would stipulate to its authenticity, even if you disagreed with its contents.
This sample pre-trial form provides that objections based on relevancy and materiality -- basically, objections to using the information contained in the exhibits -- are reserved for later consideration by the court. Sometimes, though, the judge's pre-trial order form requires you to list ALL objections to the defendant's exhibits (not just authenticity objections). In that case, you will also need to examine each document in the defendant's exhibit list to see if the defendant's use of the document would violate the Federal Rules of Evidence. You would then list the appropriate objection(s) for each questionable exhibit, stating the reason for the objection. The most common objections are: (1) the evidence is not relevant to any material issue in the case (Fed. R. Evid. 402); (2) any probative value of the evidence is outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, waste of time, or cumulativeness (Fed. R. Evid. 402); (3) the document contains inadmissible hearsay (Fed. R. Evid. 801); (4) information in the document is protected by a privilege, such as the attorney-client privilege; and (5) the evidence is character evidence offered to prove conduct consistent with the alleged character trait (Fed. R. Evid. 404).
9. Proposed jury instructions for a general charge on behalf of each party are attached hereto.
Jury instructions are instructions that the judge reads to the jury to explain the law that applies to your case (see Fed. R. Civ. P. 51).
These instructions are usually found in form books (called "pattern jury instructions") available in a law library. Often, the judge's law clerk can tell you which form book the judge prefers to use. You will need to include jury instructions on each of your legal claims, as well as instructions on the issue of damages.
10. All amended pleadings have been filed.
You should have filed any amended pleadings by the deadline set out in the court's scheduling order, which comes before the deadline for your pretrial order.
You do not need to fill in additional information here unless you plan to try to file an additional amended pleading for some reason.
11. The following additional matters, to aid in the disposition of the action were determined:
If the parties and/or the judge have reached an agreement (or made a decision) about anything having to do with the way the trial will happen, you would describe the arrangements here. For example, the judge might have decided to hear the evidence and decide the issue of liability, before taking evidence and making a decision on damages.
12. The probable length of the trial of this case is _____ days.
How long the trial lasts depends on how many witnesses will be called, and how long they will testify. Most jury trials last from 2 to 5 days. If the jury isn't chosen in advance, it usually takes half a day in federal court to pick the jury. You should then figure out how many witnesses will probably be called (often, only some of the witnesses listed in the Pre-Trial Order will actually be called at trial). Think about how long you will need to question each witness, and double your estimate to allow time for questioning by the other side. The court is usually in session for 7 hours a day, unless they judge tells you otherwise.
13. If a non-jury case, the proposed findings of fact and conclusions of law of each party are attached hereto.
If there will be a jury trial, you do not need to attach anything in response to this item. If the case will be decided by the judge alone, without the participation of a jury, you will need to attach proposed findings of fact and conclusions of law. See Fed. R. Civ. P. 52.
Findings of fact are the court's decisions about which facts are true in the case. They should include your undisputed facts, described in items 5 of the pre-trial order, as well as the disputed facts that you hope to prove, found in item 6 of this pre-trial order. They should also include any other facts that support a judgment in your favor, such as the dollar amount of the damages you suffered.
Conclusions of law are the court's decisions about how the law applies to the facts of a case. They will include the questions of law, described in item 7, answered in a way that favors you. They should also include findings that the employer's actions violated the laws under which you made your legal claims. Your proposed jury instructions can help you identify each of the legal conclusions to put in your proposed conclusions of law.
14. A list of the names of all witnesses (except those to be used for impeachment only) for each party, together with a brief statement as to what their testimony will be, is attached hereto.
Attach your list all of the witnesses you want to use at trial, as well as the list provided by the defendant. ("Impeachment" witnesses are witnesses you bring in at the last minute only to prove that certain evidence offered by the defendant is false. If you do not list a witness here, you will only be allowed to call that witness for impeachment purposes.) After each witness's name, describe in 1-4 sentences what the witness will testify about. For example:
Jane Smith will testify about discriminatory statements she overheard and about the Plaintiff's mental anguish during the last month of his employment.
15. All discovery in this case has been completed.
Include this statement if discovery is, in fact, completed. Otherwise, explain what remains to be done.
16. An attorney's conference, as required by Order Preliminary to Pre-Trial Conference, was held on ______________________________.
If the judge ordered a conference and it took place, fill in the date here. Otherwise, state that no conference was ordered, or explain when the conference will take place.
17. Each party has advised the other with respect to all deposition questions and answers to be offered in evidence, and objections thereto have been furnished and are ready for presentation to the Court at the pre-trial conference.
If depositions were taken in your case and you think you may need to use the depositions at trial, you will need to make a list of the deposition excerpts you want to use. Give the name of the person who testified at the deposition, the date of the deposition, and the beginning and ending page and line numbers for each excerpt you want to use. Give this list to the defendant. Then, just as you did with the exhibit lists, review the defendant's list of deposition excerpts to see if you have any objections. If you do, make a note of your objections on the defendant's list, and plan to present this to the judge.
18. Memorandum briefs have been furnished to the Court and opposing counsel with respect to all unusual questions of law.
A "brief" is a written statement given to the judge that summarizes the facts of the case and the pertinent laws, with an argument explaining why the law as applied to these facts means the judge should make a decision in your favor. A "memorandum" brief or "trial" brief is a document you file with the court to let the judge know about the legal background of an issue that may come up during the trial.
Sometimes, the judge will ask for a memorandum brief. You can also file a memorandum brief if you believe there are any unusual legal questions raised in your case. It is a good idea to file a response to any memorandum briefs filed by your opponent.
19. A list of questions each party desires the Court to ask prospective jurors on voir dire examination is attached hereto.
"Voir dire" questions are questions the court asks potential jury members to uncover any potential bias or prejudice, or anything else about a juror's personality, that would make you reluctant to have that person sit on the jury. For example, if you are a union member, you might want the court to ask the jurors how they feel about unions, so that you can weed out jurors who would be hostile to you because of your union membership. See Fed. R. Civ. P. 47.
20. The parties hereto are (are not) willing to enter into an agreement with reference to the disqualification of jurors.
Fill in "are" or "are not" as appropriate.
21. Counsel for all parties have familiarized themselves with respect to the Local Court Rules, particularly Rules AT-3, AT-5, CV-7 and CV-16.
Review these rules so that the statement is truthful.
22. Counsel participating in the pre-trial proceedings have full authority to accomplish the purpose of Rule 16, Federal Rules of Civil Procedure, and Local Rule CV-16
This statement simply means that whoever will be participating in the pre-trial conference have the authority to make binding decisions for their side. Since you're representing yourself, it's not an issue for you. Include the statement anyway.
23. Non-resident counsel have designated a local attorney as may be required by Local Rule AT-3.
Again, this statement is not relevant to a pro-se litigant, but should be included.
24. All parties are (are not) ready for pre-trial and trial.
Both sides should be ready. But if either side is not yet ready to meet with the judge for the pre-trial conference or to start the trial, you will need to include a statement saying who's not ready and when they anticipate being ready.
25. The possibility of a compromise settlement has been fully discussed and explored.
Include this statement if it's true. If not, explain why it's not true.
26. This case was ordered set down on the (non-jury) (jury) calendar for ______________.
Check with the district clerk to find out how to complete this item.
27. No definite setting was made, but it is estimated that it will be reached for trial about _________________________.
Check with the district clerk to find out how to complete this item.
Dated this _______ day of ____________________________, 19__, at ___________________, Texas.
| _____________________________________ |
| United States District Judge |
APPROVED:
_________________________________
Plaintiff, pro se
__________________________________
Counsel for Defendant
© 1998 Bexar County Legal Aid Association
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