FEDERAL PRETRIAL PROCEDURE
Alexander Holtzoff*
of judicial administration, legal technicalities and law's delays have beset mankind since the dawn of history. We are told in the
Book of Exodus that Moses was admonished by his father-in-law,
Jethro, to reorganize his system of administering justice because he had
been handling the matter inefficiently. Aristophanes lampooned legal
technicalities in "The Clouds." Shakespeare dubbed them "the sharp little
quillets of the law." In Hamlet's soliloquy, he listed law's delays as one
of the great evils of mankind.
In Anglo-American jurisprudence no outstanding endeavors were made
to solve these problems and to meet these difficulties until about a century ago. At that time a far-reaching step was taken in the State of New
York by the introduction of code pleading and its substitution for the
outmoded common law pleading. Other states followed the lead of the
Empire State in this respect. Unfortunately, code pleading while discarding the technicalities of its common law predecessor accumulated
numerous technicalities of its own and likewise became a problem. In
the 1870's England completely reorganized its judicial structure, abolished
the outdated forms of pleading, and introduced new and simplified procedure. In 1938, the Supreme Court of the United States under the
authority of an Act of Congress promulgated the Federal Rules of Civil
Procedure which completely abrogated the preexisting practice and substituted a unified, simple pleading and practice for all of the United
States district courts. In 1946 a similar result was reached in connection
with Federal criminal procedure.
The Federal Rules of Civil Procedure first introduced pretrial into
the Federal courts. Rule 16, which relates to this innovation, authorizes
every United States district court to use pretrial practice, in whole or in
part. It should be observed that it was made optional for each Federal
court to determine whether to avail itself of pretrial practice. The
reason for its being made optional is that at the time when the Rules
were drafted pretrial was still in an experimental stage and the eminent
Advisory Committee that framed the Rules evidently felt that it should
not be made mandatory at that time.
What is pretrial procedure? In its ultimate analysis it is simply a conference between opposing counsel, conducted under the supervision and
guidance of the court, for the purpose of crystallizing issues, eliminating
PROBLEMS
* Judge of the United States District Court for the District of Columbia.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 11
matters that are not actually in controversy, and stipulating as many facts
as can be agreed upon. One perhaps may enquire why this idea is considered novel and important. The answer is that a great many inventions
and advances appear to be perfectly obvious after they are attained, although no one had thought of them previously. Numerous instances of
this type are found in the field of patents. For example, the man who put
the hump into the hook-and-eye made a marketable and useful article
out of something that had not been successful previously.
Pretrial had a curious and interesting origin. It was developed in the
State courts in Detroit in about 1929, without any intention or idea that
anything new was being created. At that time the Detroit courts were
many years in arrears in their dockets and the judges were looking for
some means to keep up with their litigation. It. was decided to call all
non-jury cases, one by one, and hold a short conference in each instance
with a view to simplifying and shortening the trial, and possibly disposing
of the case entirely. The plan proved to be a tremendous success and
pretrial was on its way. Boston, Los Angeles and Cleveland then experimented with similar procedure. The Advisory Committee of the Supreme
Court which drafted the Federal Rules of Civil Procedure had these
examples before it, and authorized, as has been stated, the introduction
of pretrial in the United States district courts.
One of the pioneers in making use of the Rule was the United States
District Court for the District of Columbia, which within a year after
the Rules became effective introduced pretrial for practically all civil
cases on a mandatory basis and prescribed a Rule to that effect. Since
that time numerous Federal courts have adopted pretrial practice as a
mandatory matter for all civil cases. Others have prescribed it for cases
of selected types, while others utilized it for specific cases either on motion
of counsel or on the initiative of the judge. Unfortunately, there are
some that are not making very much use of pretrial.
The Judicial Conference of the United States has created an active
Committee whose function it is to promote the use of pretrial throughout
the Federal judicial system. This Committee has accomplished a great
deal in this direction.
Unfortunately, in this respect the State courts have lagged behind the
Federal judiciary. Pretrial practice has not been used in the state tribunals to the same extent to which it has been adopted in the Federal
courts. The Section of Judicial Administration of the American Bar
Association has an active Committee the function of which is to advance
the use of pretrial~in the state courts. This Committee, too, has accomplished a great deal in that direction. It may be said that in general the
1962]
FEDERAL PRETRIAL PROCEDURE
Federal courts have led the progress for procedural reform, both on the
civil and on the criminal side. About one-third of the states have adopted
the Federal Rules of Civil Procedure and more, no doubt, will accept
them from time to time. A millenium will be reached one of these days
when all of the states will use the Federal civil procedure, so that law
students will have to learn only one type of civil practice instead of
both Federal and their local procedure.
As has been stated, the United States District Court for the District
of Columbia adopted pretrial for practically all civil cases on a mandatory basis. Under the local practice, which is governed by the local rules,
there is a single calendar of all civil jury cases, and another list of civil
non-jury cases. When a case is reached for trial, it is assigned to the first
available judge. Under the pretrial practice, as it prevails in the District
of Columbia, before a case is actually reached for trial, it is set down
for pretrial. This procedure applies to all civil cases except actions
against the Commissioner of Patents to review his denials of applications
for patents. Until recently one judge was always assigned to conduct
pretrials. As all assignments of judges in that court rotate every three
months, the pretrial judge was not necessarily the judge before whom
the case would eventually be tried. In fact, it would be the exception
rather than the rule under that system for the same judge both to pretry
and try a case. After the case was pretried and the pretrial order entered,
it was set down on the list for assignment for trial. While it has been the
aim of the court to maintain an interval of two to three weeks between
pretrial and trial, this has not always been possible and sometimes a
somewhat longer period elapses depending on the length of trials of
preceding cases, and other similar circumstances.
Recently the Court instituted a system whereby a Pretrial Examiner
and an Assistant Pretrial Examiner devote their entire time to conducting
pretrial proceedings. This innovation has resulted in two advantages:
it liberated one additional judge for trial work; and it created a continuity and a permanence in the manner in which pretrials are conducted.
The actual procedure followed in the United States District Court for
the District of Columbia, in this connection, is as follows. All court
calendars are managed by an administrative official known as the Assignment Commissioner. His work is so voluminous and exacting that he has
to have a considerable staff to assist him. His office sets down civil cases
for pretrial in turn as they are reached. A notice of the date of pretrial
is sent to counsel. Generally, printed postcards are used for that purpose.
Counsel are encouraged to confer informally with each other prior to
the pretrial hearing in order to exchange views and enter into as many
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 11
stipulations as can be reached without the aid of the court. Counsel for
each party are required to prepare prior to the pretrial a detailed written
statement. This statement must be served on opposing counsel and the
original submitted to the pretrial examiner in advance of the hearing.
The contents of this statement are prescribed in detail in printed instructions to counsel issued by the pretrial examiner with the approval of the
court. Among other things that are covered in the statement are requests for specific stipulations. At the pretrial hearing each counsel
makes an oral statement setting forth his theory or theories of the case,
both as to the facts and the law, as well as indicating what stipulations
he requests on the one hand and what stipulations he is willing to make
on the other. The various items are then discussed orally under the
guidance of the pretrial examiner, who at the conclusion of the hearing
prepares a pretrial order setting forth the results of the pretrial. This
order indicates what facts are admitted and what facts are in dispute;
the specific issues of fact and law to be determined at the trial, in as
concrete and succinct manner as practicable; and stipulations of fact
which eliminate the necessity of producing proof at the trial. The order
also indicates what issues are not in dispute and are to be eliminated from
the controversy. Each counsel has a right to file objections to the pretrial
order within five days and such objections are then heard by the pretrial
judge. The filing of objections, however, is the exception rather than
the rule.
The role of the judge or the examiner, as the case may be, in conducting pretrial hearings, is entirely different from the judge's function at the
trial. In order that pretrial may be a success and be productive of results, it is essential that the official conducting the pretrial actually participate and frequently take the initiative in leading the discussion and
suggesting matters to be accomplished. Often he has to interrogate
counsel somewhat pointedly in order to crystallize the precise contentions
of the parties, to screen out the unessential and extraneous matters, and
to frame in a concrete manner the specific issues to be tried. Frequently
he suggests topics for stipulation and indicates the desirability of
stipulating certain facts that are not really in controversy.
A few examples may illustrate what is sought to be accomplished at
pretrial. One of the matters is the formulation and narrowing of the
issues. As an illustration, an average case to recover damages for personal injuries arising out of an automobile collision may be taken. It
will be borne in mind that the forms of pleading under the present rules
are very general. This is true of the form of complaint in a negligence
case, contained in the appendix to the Federal Rules of Civil Procedure,
1962]
FEDERAL PRETRL4L PROCEDURE
sometimes facetiously referred to as "the Boylston Street form," because
the accident is alleged to have taken place on Boylston Street in Boston,
and the writer knows of no other city that has a Boylston Street. It
alleges merely that the collision took place on Boylston Street on a specific
date, that it was caused by the negligence of the defendant, and that as
a result the plaintiff was rendered sick, sore and disabled. At pretrial
the plaintiff is required to state in detail precisely what he claims actually
occurred. His version of the accident is then summarized in the pretrial
order. He is then called upon to specify what negligence he claims on
the part of the defendant. While a general allegation of negligence is
sufficient in a pleading, by the time that the case is reached for pretrial
the parties are required to have sufficiently prepared their case in order
that they may take a definite position, thereby eliminating the possibility
of surprise at the trial. The plaintiff might say, "We claim that the
defendant ran through a red light," or, "He was going at an excessive
rate of speed and was not giving full time and attention to his driving,"
and so on. These specifications are set down in the pretrial order and
thus the defendant is apprised specifically what the plaintiff claims and
the evidence at the trial will be limited to matters within the specification.
Similarly, if the defendant claims contributory negligence as a defense,
he is called upon to specify with precision as to what the alleged contributory negligence consists of. For example, he might say that he
denies the plaintiff's allegation that he ran through a red light, that on
the contrary, the light was green, and that he further claims that the
plaintiff was guilty of contributory negligence. As an example he might
specify the contributory negligence by alleging that the plaintiff was
proceeding at an excessive rate of speed, or that it was the plaintiff who
ran through a red light. Again, all these matters are stated in the pretrial
order.
The plaintiff is required to state what he claims as his injuries and
what his damages are. If he claims any permanent injuries, he is required to specify them with a considerable degree of particularity in
order that the defendant may be prepared to meet the testimony in support of his contentions. He is required to specify his pecuniary or special
damages. It is not sufficient for him to say he spent so much money
for medical and hospital bills. He is required to itemize the expenditures.
In a supposititious case which I am using as an illustration, the plaintiff
may respond to the defendant's contention, "If I was guilty of contributory negligence, I rely on the doctrine of the last clear chance in the
following respect." This, too, is of course recorded in the pretrial order.
To take another supposititious case, an action for breach of contract
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. I11
might be taken as an illustration. At pretrial the plaintiff would be required to state whether the contract on which the suit is brought was oral
or in writing; if the former, when and where it was made and what conferences took place which formed the alleged contract; if the latter,
what the documents forming the contract were. The defendant might
respond by stating that the alleged conversations did not take place; or,
that the alleged writings were signed by an agent who acted beyond his
authority, and the like. Again, the plaintiff would have to specify in detail
the manner in which he computes his damages.
As has been stated, the first aim of pretrial is to crystallize, specify
and narrow the issues to be tried, eliminating all matters not actually in
controversy. The second objective is to endeavor to stipulate facts and
thereby eliminate the necessity of proof at the trial. For example, in an
automobile accident case, street measurements if they are of any importance can be stipulated, thereby avoiding the necessity of subpoenaing
government employees to prove the width of a street, which unnecessarily
consumes the time of the court, causes needless expense to the parties, and
temporarily takes a government employee away from work that he ought
to be doing. Such matters as whether there were traffic lights, and
whether they were in operation at the time of the accident, are frequently
the subject of stipulation. Among other items that lend themselves to
similar treatment are loss of plaintiff's time from his work, and the
amount of wages or salary that he was earning at the time. In an action
to recover damages for wrongful death, the age of the deceased, his employment and his earnings at the time of his death, his marital and
family status, the names and ages of his dependents, and the amount
of contributions that the deceased made for the support of his family,
can often be stipulated in whole or in part.
One of the important aspects of stipulations of facts is the concession
of authenticity of documents. To revert again to the supposititious
accident case, the plaintiff at pretrial will be required to produce his
medical and hospital bills for the examination of his adversary. In most
cases the authenticity of the bills will be stipulated, and they will be
initialed in order that they can be introduced in evidence at the trial
without formal proof. In a contract action, the contract or a series of
letters forming the contract, can be authenticated and stipulated. All of
these illustrations indicate the extent to which stipulations can be made.
They are practically unlimited except by the ingenuity and cooperation
of counsel. In connection with stipulations, the official presiding at pretrial must actively participate and frequently take the initiative and make
suggestions as to possible stipulations. Experience shows that by this
1962]
FEDERAL PRETRIAL PROCEDURE
means many more stipulations are entered into than if the matter is left
to the initiative of counsel.
Obviously the results of a pretrial are necessarily to shorten the actual
trial by eliminating proof as to issues that are discarded in the sifting
process, and as to facts that are stipulated at the pretrial hearing. More
than that it frequently saves considerable expense to the parties in making production of proof unnecessary. A pretrial in order to be effective,
however, must be thorough and must explore every possibility. The
deftness, the patience and the firmness coupled with tact of the judicial
officer presiding at the pretrial, are important factors in attaining these
objectives. A purely perfunctory pretrial is a sheer waste of time.
In this connection, it seems appropriate to discuss certain aspects of
pretrial as they affect long and protracted cases such as, for instance,
antitrust actions. Trials of cases of this type are burdensome because
one case may immobilize a judge for weeks and months. The writer
has found from his personal experience that days and weeks of trial can
be eliminated by stipulating the authenticity of documents during the
pretrial hearing. In an antitrust case there may be several hundred, or
even sometimes several thousand, documents to be offered in evidence.
Merely to make formal proof of each one, 'even if it takes only a few
minutes per document, will consume days at the trial. At the pretrial
documents can be produced and inspected, and their genuineness and
authenticity can be stipulated. Formal proof then will not have to be
introduced at the trial, and the documents can be readily offered in evidence as the case progresses. In stipulating to the authenticity of documents, the parties may, of course, reserve objections as to their relevancy,
and this is frequently done, thereby limiting the stipulation to a waiver
of formal proof.
There are two ways of conducting a pretrial. Many judges conduct
pretrials formally in the courtroom in the same manner as a trial. There
are other judges who conduct pretrial hearings informally in chambers.
Both have proved successful. The mode to be employed is a matter of
choice with the judge. Personally the writer prefers the formal type
of pretrial hearing: first, because the informal conference is more likely
to be wasteful of time than in a formal proceeding in the courtroom;
and, second, because the parties at an informal conference are less likely
to be impressed with the importance of the pretrial, its significance, and
its binding effect. They are also less likely to enter into stipulations than
if the formal method is used.
The pretrial must be regarded as a formal and important stage in the
litigation, at which attendance of counsel is compulsory. Failure to ap-
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol.II
pear should result, and it does in the District of Columbia, in a notation
of a default with all of its usual consequences. The pretrial order is regarded as binding on the parties at the trial. During the first few years
after pretrial was introduced, pretrial orders were at times treated somewhat cavalierly and were often silently ignored at the trial. The Bar
has come to realize, however, that they are binding and must be adhered
to at the trial. The pretrial order, of course, is subject to amendment for
good cause shown. A motion to amend may be made before the pretrial
judge, or the pretrial examiner, in advance of trial. In extreme instances
it may be amended at the trial if the ends of justice so require, provided
the opposing party is not prejudiced or taken by surprise. In the last
mentioned contingency, the amendment may be allowed on condition
that the moving party consent to a mistrial and a continuance. Obviously,
such matters are within the discretion of the trial judge.
It must be observed in this connection that the Federal Rules of
Civil Procedure, particularly the rules relating to discovery and to pretrial, have greatly modified the adversary system, which is a notable
feature of Anglo-American jurisprudence. Until modern procedure was
introduced in our own times, counsel for the respective parties felt it
their duty to deal with each other at arm's length. Their attitude was
that it was not their function to help each other. On the contrary, each
counsel had a right to sit back and leave it to the opposition to prove
its claim or its defense, as the case might be. The Federal Rules of
Civil Procedure have changed this philosophy. While we still maintain,
and no doubt will always continue, the adversary system because it is
the crux of the common law, nevertheless at present each party is required to disclose whatever information is in its possession and has a
bearing on the controversy to be tried irrespective of which side is aided
or prejudiced by the disclosure. There is, of course, an exception for
privileged communications. Much of the disclosure is obtained by the
discovery weapons provided by the Rules; much of it takes place at
pretrial. By the time the pretrial is reached, counsel is required to
have his case so well in hand that he must be able to take specific positions as though the trial were about to open. He must also be willing
to disclose whatever may be helpful in deciding the ultimate issues. At
times moral suasion on the part of the presiding judicial officer is needed
to elicit stipulations. Much, therefore, depends on the personality of
the presiding judicial officer. Actually, pretrial is a difficult and onerous
task for the judge or the examiner. In fact, it is at times more exhausting
and fatiguing that the conducting of the trial itself, even though it is
less picturesque and less interesting.
1962]
FEDERAL PRETRIAL PROCEDURE
While the sole purpose of pretrial is, as has been described, to narrow
and crystallize in a concrete form issues to be tried and to stipulate as
many facts as possible, one of the frequent, unintended by-products of
pretrial is an increase in the percentage of settlements of cases. Many
cases are settled either immediately after a pretrial, or more often some
time between pretrial and trial. The reasons for this result are obvious.
Frequently a pretrial constitutes the first occasion on which opposing
counsel have an opportunity to meet and mutually discuss the case. As
a result of the exploration conducted at the pretrial hearing, each counsel
gets his opponent's point of view which perhaps he did not have before.
He begins to discern the weaknesses of his own side, and to perceive the
strong points of his adversary's case. He is likely to become more
amenable and more desirous of settlement. This is one of the side contributions that pretrial makes to diminishing the law's delays.
In the District of Columbia, a custom gradually developed for the
judge after the pretrial hearing is finished, to explore with counsel the
possibility of a settlement, if the judge sees that this is what counsel
would like to have him do. On numerous occasions when the writer was
conducting pretrials, and the hearing was at an end, counsel would enquire of the court whether the court would not discuss settlement. This
immediately led to a settlement discussion. Most lawyers would rather
settle their cases than try them, but frequently they hesitate to initiate
a negotiation to that end lest this course be misconstrued as an indication
of weakness. When both stand before the court, neither is likely to feel
that he is showing any sign of weakness if he is ready to discuss settlement. It must be emphasized, however, that it is not the purpose of
pretrial to settle cases. Settlements are purely a by-product and a side
issue.
Unfortunately, the term "pretrial" has on occasion been used rather
loosely for something that is not a pretrial at all. Some busy courts
have a periodic call of cases on the docket either for the purpose of
ascertaining their status or for the purpose of assisting in arriving at
compromises and settlements. This activity is obviously commendable,
but it is a misnomer to apply the term "pretrial" to it, and does an
injustice to pretrial since it creates an erroneous impression in the minds
of many lawyers as to what constitutes a pretrial.
As is always the case with improvements and reforms, there has been
some opposition to the introduction of pretrials into courts where they
have not existed before. Much of it is due to inertia and apathy which
confronts all attempts to improve or reform any aspect of life. The
affirmative opposition, and there is some, generally comes from those
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol.II
lawyers who have a misunderstanding of what pretrial is. Strangely
enough, this attitude is occasionally displayed by lawyers whose principal
practice consists of defending negligence cases, and they have been heard
to say that they would not let the court "browbeat" them into settlements. As has just been indicated, this attitude is based on a misconception of pretrial practice. Generally after pretrial is introduced and has
been in operation for some time, most of the hostility and antagonism
vanish, and many opponents become its champions. It has been the
day-to-day observation of the writer that in the District of Columbia
most trial lawyers who are in court constantly, have not only become
accustomed to pretrial, but like pretrial and desire to see every case
pretried in a thorough manner.
There has been considerable discussion, from time to time, as to the
possible application of pretrial practice to criminal cases. Rule 16 of
the Federal Rules of Civil Procedure, which relates to pretrial, has no
counterpart in the Federal Rules of Criminal Procedure: there is no
pretrial rule in the Federal Rules of Criminal Procedure. The Advisory
Committee of the Supreme, Court which drafted the criminal rules,
discussed the subject at some length and the Final Draft of the proposed
rules that it submitted to the Supreme Court contained Rule 15 providing
for pretrial procedure, which was very similar to Rule 16 of the Federal
Rules of Civil Procedure, with the limitation, however, that it shall not
be invoked in the case of any defendant who was not represented by
counsel. The Supreme Court omitted this rule in the rules which it
finally promulgated. This was one of the very few changes made by the
Supreme Court in the final draft reported by the Committee. The
objections raised to the rule in the Committee discussions were that
defendants in criminal cases should not be required to make stipulations,
and that the pretrial rule might result in moral pressure being applied
occasionally in order to induce stipulations. While the writer does not
share this view, the Supreme Court evidently felt that because of the
controversial nature of the matter, it would be better to omit the proposed rule. The absence of a rule on the subject does not, however,
prevent the court from suggesting a pretrial in any particular case if
counsel consent to conduct such a hearing. This would have to be done
before the jury is empaneled, and even before a jury panel is in the
courtroom. In fact, the better course is to conduct such a pretrial some
time before the trial.
The writer has used pretrial in criminal antitrust cases, necessarily
with the consent of all counsel, while he has done so in civil antitrust
cases without inviting the consent of counsel, under Rule 16. This
1962]
FEDERAL PRETRIAL PROCEDURE
procedure proved to be very useful. In one antitrust case in which
counsel made the prediction that the trial would consume about six
weeks, the actual trial time was reduced to about eight trial days, as a
result of a series of thorough and exhaustive pretrial sessions, accompanied by the use of discovery under the guidance of the court, especially
requests for admissions.
Cases involving the use of mails to defraud and similar offenses in
which there may be voluminous documents to introduce in evidence,
are a very fruitful field for the use of pretrial for the purpose of identifying documents and waiving formal proof, thereby considerably shortening
the trial. Necessarily, in such instances, the active cooperation of counsel
is indispensable. Experienced, able, and far-sighted counsel generally are
glad to cooperate for obvious reasons.
The English courts have a practice that corresponds to pretrial. It
has been in existence for a great many years and is known as "Summons
for Directions." The hearing of a summons for directions is conducted
before a standing master of the court, who devotes his entire time to
this and similar activities. Unlike the American pretrial practice, however, the hearing of an English Summons for Directions takes place at the
very opening of the litigation, generally before issue is joined. The
writer has sometimes thought that the ideal system would be one where
there are two pretrials-one at the initiation of the litigation, and the
second, as now, shortly before the trial. The obvious objection to this
course is that it would create too great a tax on judicial manpower. In
protracted cases, however, such as antitrust cases, this idea is substantially followed, because most judges to whom such cases are assigned
institute pretrial sessions promptly after jurisdiction over the defendant
is obtained, and continue such sessions from time to time until shortly
before the trial commences.
Thus, in the course of about thirty years, an innovation that had
humble beginnings has grown to a point where it has become one of
the mainstays of progressive judicial procedure. It is one of the important weapons by which cases are expedited, congestion of dockets
mitigated, and what is more important the element of surprise is
eliminated and the cost of trials reduced, thereby enhancing the type
of justice meted out by the courts.