Pretrial Statements Explained
Relatively unfamiliar to the general public, pretrial statements, sometimes referred to as "joint pretrial orders" by lawyers, are brief documents drafted by the attorneys for the parties before a trial begins. The "statement," which is usually done in a single document, may include stipulations, a statement of undisputed facts, undisputed issues, disputed issues, exhibit lists, witness lists (often with a short summary of their proposed testimony) and sometimes other documents.
In complex commercial cases, they can be almost microscopic in their detail. For example, an exhibit list could run several pages and include more than 300 exhibits. The exhibits would not just be referenced by number, but would include a short description of what the exhibit consists of (especially if it is an email, a fax or something that doesn’t have an obvious name), who the alleged author or sender is, and even where it might be physically located. This level of detail makes it easy for the attorneys to know in advance what will be at issue, as well as gives the judge an easy way of identifying what each party is going to present to the trier of fact.
It is important to note that the statements are not presented to the judge until the trial begins, and they are typically never seen by a jury – if even a judge sees them. The nature of litigation is that facts and issues evolve, and the pretrial statements are just the last document filed before trial. As litigation heads toward a trial, documents between the attorneys act as "roadmaps" for where their case will go once the judge enters the courtroom, whether a jury trial or a bench trial . So pretrial statements consist of documents that simplify the process of trying a case and creating "checklists" of what each attorney intends to present. In short, they map out and facilitate the presentation of proofs so that there is no wasted time at trial.
Before the trial itself begins, the attorneys meet and confer to review all of the information included in the pretrial statements. If all or some of the information is agreeable to both parties, the attorneys will stipulate (or agree) as to the hundreds of issues that they are willing to concede, thereby eliminating any need for evidence by the other party. For instance, the attorneys may agree that the defendant was the sole manufacturer of a product, that it sold such products to the plaintiff and in fact, that the plaintiff installed such products. All of those facts would have to be proven by the plaintiff if the defendant were to take an aggressive approach with the defense.
The pretrial statement eliminates some of the most time-consuming and often-misunderstood aspects of litigation. They streamline the presentation of the proof – whether documentary evidence or witness testimony – by giving the judge a simple "roadmap" of facts that should not require proof but are relevant to the resolution of the dispute. Pretrial statements combine the evidence, the witnesses, the undisputed facts, the law and the legal contentions into a single document that is presented to the judge and/or jury at the very beginning of trial.
What to Include in Your Pretrial Statement
The purpose of a pretrial statement is to introduce and provide the court with a roadmap on how the case is expected to unfold — it allows the parties to come prepared to the pretrial conference or trial. Each pretrial statement can be formatted differently, based on preferences of the court, but there are certain key components that are in all pretrial statements:
Factual Background
The factual background is intended to give the judge a brief overview of the facts of the case. In many courts, clients are given a pretrial statement worksheet by their attorney, which will provide the parameters of each section. The factual background will briefly discuss the facts of the case, all information necessary to frame the issues for the hearing, and the nature of the dispute. In some counties, the district attorney’s office provides a suggestion of what to include in the factual background.
Legal Issues to Be Decided by the Court
A pretrial statement will generally include a section on legal issues to be decided by the court. In most cases, the parties will stipulate to the law, but in cases where there is a dispute as to the legal standard to apply to the facts, this section can be very helpful to the court. For example, a child support case may include a dispute about whether to apply the low-income adjustment or the full child support formula. If the parties wish to argue about this issue, that should be included in the legal issues to be decided by the court so that the court will be prepared to hear the relevant evidence at the trial.
Witnesses
In most pretrial statements, there will be a section to list the witnesses. Some courts will allow the parties only to list the witnesses they expect to call in their case, but in other courts, a witness may be called by either party. Witnesses should be listed with a short description of their expected testimony.
Exhibits
List exhibits you intend to present at trial. For example, in a child custody and visitation case, you might include photos of the minor children, or therapists’ reports. Each county will have its own pretrial rules, but you must be familiar with both local and state rules in order to prepare them correctly.
How to Create a Winning Pretrial Statement
First, do not mistake the pretrial statement for a mere restatement or even summary of the pleadings. The court simply wants you to summarize your case in an organized, comprehensive, and concise manner. The court will likely impose some consequences if you fail to show up at the pretrial conference or fail to submit this written document.
Consider this step-by-step process to draft an effective pretrial statement:
First, review all relevant documents to see whether they have been exchanged by the parties per Rule 26 of the Federal Rules of Civil Procedure. Also, determine whether disclosure of relevant information has been completed per Rule 16. Your exchange of relevant documents should come well before your memorandum.
Second, memorize your organizational scheme and stick to it. Your instant recall of your organizational scheme will give you the flexibility to deviate from it. Without memorizing your scheme, you could find yourself too constrained by rigidly applying it. There are three major parts to your memorandum:
- factual background;
- discovery issues, including a statement that all parties have complied with Rule 26; and
- legal arguments.
Third, use as few subheadings as possible. If you have an entire page of headnotes, you could try applying them as subheadings instead. It’s okay if a subheading is longer than a line. Keep in mind, however, that at most, the subheading will probably be half that amount. When you have to use subheadings, try keeping the subheading title short, unless you can’t help it; then make it one line max.
Fourth, when you have to cite cases, confirm that you are citing them accurately by comparing your citations to the legal authority in Westlaw or Lexis.
Fifth, confirm that your cited cases say the same thing you are saying.
Sixth, cite authority to bolster your positions. Be careful to use primary authority – citations to cases or statutes. You can opt not to cite secondary authority.
Seventh, do not state that all parties have the same legal arguments. Refrain from premising statements on the absence of case law on point.
Eighth, remember that you are presenting your case to a judge. If you can trust your judge, trust him or her enough to treat your judge as a judge and not as a jury. Don’t fall into the trap of arguing as if your judge is a jury.
Ninth, keep in mind that length is not tantamount to quality.
Tenth, once you have drafted your memorandum, put it aside for about a day. Come back and read it again, and revise it until it flows smoothly and naturally.
Pretrial Statement Mistakes and How to Avoid Them
When juggling multiple pretrial deadlines at once, it’s not unusual for lawyers to struggle with completing pretrial statements. But don’t let your frustration lead to subpar statements.
The biggest mistakes I see in pretrial statements (and when preparing motions in advance of trial) involve failing to meet both affirmative and negative obligations:
Two examples of affirmative obligations are:
Two examples of negative obligations are:
To summarize, the rules require parties to affirmatively disclose information and take care not to omit either affirmative or negative information.
The most common mistake is to guess at the meaning of a rule when it’s unclear and then fail to disclose information that may be required (failure to anticipate the procedural rules). The best way to avoid this is to put your duty to "anticipate procedural rules" into your litigation checklist. In other words, make it your policy to research the law before making any assumptions about how a rule should be applied.
Another common mistake is to underestimate the amount of time a pretrial statement will take to prepare. Do yourself a favor and build in time in advance of the deadlines to prepare thorough pretrial statements. You never know, the trial judge may not be accommodating in giving you an extension to fix matters.
One more common mistake is to fail to recognize that you have to set forth the evidence you "expect" to introduce at trial. Do not wait until the trial to "find out" what would have gone into your pretrial statement otherwise.
And finally, document mistakes and omissions. This does not mean to document them as a basis to later argue that a pretrial statement should have included something later overlooked. This means to document the omissions because it is your duty to identify them at the earliest opportunity (i.e., moving to compel supplemental disclosures). Without documenting the omissions, it could create a waiver argument if you ever seek to discuss them later. Remember, you cannot gum up the works with motions (like motions for sanctions) during trial or at least until you notice the error. So make sure to set a system for documenting errors.
Pretrial Statement Sample
As defined above, a pretrial statement is a written document filed in Arizona state and federal courts which summarizes the parties’ positions, identified people who have discoverable information as to their claims and defenses, and identifies exhibits and witnesses which parties intend to use at trial. Under the Rules, a sample statement is provided which is required to be used. Notwithstanding the fact that the rules provide a sample, we will provide an example of a sample. Please note that these are not our actual cases or clients, nor an actual presentation of either sides’ case. This is purely for illustrative/educational purposes only.
1. NATURE OF THE CASE AND RELIEF SOUGHT Statement of facts describing the nature of the action. Plaintiff KR, Inc. ("KR") is the developer of the Hypo-X drug which eliminates bacterial infections and leaves the body with all other normal flora intact and thriving. Defendant IAC is a pharmaceutical research company and holder of several patents in the drug field, including the relevant patent for the production of Hypo-X. The two entered into a partnership involving the distribution of Hypo-X. KR, Inc. claims that IAC has unlawfully terminated the parties’ agreement. Plaintiff’s Claim: Plaintiff seeks the termination of the parties’ agreement and an injunction requiring Defendant to sell or otherwise license the formula for the Hypo-X drug to Plaintiff. Defendant’s Claim: defendant denies that it breached its agreement with plaintiff , and asserts that it provided the formula to plaintiff for production. Defendant now agrees with plaintiff’s claims about the drug’s effects. 2. TRIAL WITNESSES Witnesses identified by each party. Plaintiff’s Witnesses: KR, Inc., 123 LA Road, Scottsdale, AZ 85255 Larry Baud, mfr. production supervisor of KR, Inc. – 321 Foo Bar Drive, Tempe, AZ 85285 IAC, 921 Airport Road, Phoenix, AZ 85034 Claimant’s Claim: after receiving a memorandum and PDF file from Defendant, Plaintiff KR, Inc. begins mass production of the Hypo-X drug. 3. EXHIBITS A list of exhibits to be offered at trial by each party. HT-123 Formula provided by Defendant IAC. 4. ESTIMATED TIME OF TRIAL Estimate of the time each party expects the trial to require. Plaintiff and Defendant agree that the trial will last approximately 2 days. 5. CONTESTED AND UNCONTESTED FACTS Factual matters to which the parties have agreed but disagree on the characterization. Defendant asserts and Plaintiff agrees that the formula for the drug was in Defendant’s possession and provided to Plaintiff in its entirety via IAC’s production staff via email and in hard copy. 6. NARROWED ISSUES Contested matters remaining for the Court/Trier of Fact to decide. The parties’ agreement has been broken. 7. CUSTODY OF CHILDREN For divorcing parents, information regarding children subject to an Order of Protection. Not applicable 8. DISCOVERY Any outstanding discovery issues. None. 9. MISCELLANEOUS Any other matter relevant to the case. None.
The Legal Significance of a Pretrial Statement
Since a pretrial statement has the potential to severely impact the outcome of the trial, all litigants should carefully consider the type of statements that they include within them. A party may not be able to later argue that statements contained in the pretrial statement should be excluded from evidence at trial because of hearsay or other inadmissibility objections. As such, litigants should draft their pretrial statements very carefully to account for the information actually supported by admissible evidence. Although California law does allow pleadings, signed declarations, and affidavits to be admissible at trial as well as in a pretrial statement (see Evidence Code § 1721), it can be a gamble to attempt to introduce such documentary evidence at trial in spite of such provisions. Furthermore, a responding litigant can seek to exclude a pretrial statement that is used at trial on the grounds that it was never introduced into evidence (i.e. via the witness testifying to the document and properly authenticating it or other means). In this way, a litigant’s pretrial statement can help the moving party to solidify the issues at trial and can bind the responding litigant to issues that they may wish to later contest at trial. As such, a pretrial statement holding a litigant’s feet to the fire as far as the statements made therein is an important component of drafting a pretrial statement to fully maximize its legal use and impact. A pretrial statement acting as an admission can be exceedingly damaging to either litigant’s case because of the Clients Rules of Civil Procedure’s express provisions allowing pretrial statements into evidence (as opposed to under more restrictive rules as stated above). A pretrial statement in which a litigant admits to facts from which the other party can thereafter argue inferences unfavorable to that litigant can be extremely detrimental to that party’s case. Litigants must also keep in mind that pretrial statements can act to limit the scope of the litigation. This is because a pretrial statement can create judicial estoppel when the litigant seeks to later rely upon a fact or contention in opposition to the pretrial statement. In this way, the pretrial statement can be a useful tool to eliminate extraneous issues and/or to box in the other litigant’s tactical strategies. In other words, the proper use of a pretrial statement can have a serious and significant impact on the tactics and strategies employed by the parties at trial.
How to Win at Pretrial Statements: Tips for Success
Start drafting your statement as early as possible. Don’t wait until a few days before your hearing to try to figure it out. You’ll need time to consider the information and facts you’d like to include, and then to put everything together in a logical sequence. Be concise. Space is limited to two pages for each party, so say as little as possible to get your message across. When you’re ready for review after a draft, edit out anything that you don’t absolutely need. If you’re still worried about meeting length requirements, there are useful word count tools built into most word processing programs – they’ll give you a total word count and an exact character number. Cite evidence or exhibits sparingly. You’re not briefing the court on your case or presenting a full argument – while it’s helpful to provide a few sources that explain or support your position on liability or damages , your statement should center on your narrative. Be objective. Providing too much incident detail or comments about the other party’s conduct can be off-putting and make you seem self-serving. Proofread for spelling and grammar. Don’t skimp on this step! Typos, errors and messy text will give the impression that you have spent little time on your statement, and will be counter-productive at your hearing – your credibility will be diminished if you lack attention to detail or are perceived to be hosting a last-minute scramble. Check your local rules. While a one-page, double-spaced limit is standard procedure for pretrial statements in most states, state and local rules vary somewhat. Just to make sure you’re up to date.