Young Lawyers Journal: Pretrial Procedure in State and Federal Court: 90 Days before Trial: Part 1
By Anthony J. Anscombe
Anthony J. Anscombe is a Partner at Sedgwick, Detert, Moran & Arnold LLP in Chicago
Getting ready for trial can be a challenging experience, as you obsessively recheck the completeness of
your evidence, and prepare to tell your client's story to the jury. The thoroughness of your efforts directly affects the likelihood of your success, and avoiding unpleasant surprises is a top priority.
This article provides an overview of important procedural requirements that attend trial preparation
in Circuit Court and District Court in the three month period before trial. This article will appear in two
consecutive monthly installments. The first part focuses on "consolidating your position." The second
part will address trial preparation itself, with a focus on the final pretrial conference.
90 Days to Go - Consolidating Your Position
At 90 days before trial, trial looms before you, and practitioners must review, carefully scrutinizing the
entire case. The record is now about as complete as it will be. You need to ensure the trial will cover all
of the issues favoring your client's interests. You need to ensure sure full compliance in discovery and
that your evidence satisfies your burden of proof. This is also a time to decide among trial, dispositive
motion, or favorable settlement.
The Issues to be Tried and the Scope of the Pleadings
As a general rule, if a claim or defense is not in the pleadings, it will not be part of the trial. In both
state and federal court, it is crucial to fully express your client's position. Of course, you should not wait
until 90 days before trial to do this. Judges, state and federal, do not like amendments close to trial, as
they can extend discovery and cause delay. Evaluate your pleadings continually during discovery and
seasonably amend as warranted by the receipt of new information. If you wait, your amendment may
prejudice your opponent, and the Court may deny your motion. Decisions to grant or deny amendment
are reviewed under an abuse of discretion standard and are difficult to disturb on appeal. Loyola Acad-
emy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273-74, 586 N.E.2d 1211, 1216 (1992); Bohen v. City
of East Chicago, Ind., 799 E2d 1180, 1185 (7th Cir. 1986).
Circumstances can and do, however, necessitate amendment close to trial. In state court, 735 ILCS
5/2-616(c) provides "[a] pleading may be amended at any time, before or after judgment, to conform to
the proofs, upon terms as to costs and continuance that may be just." Illinois favors the liberal amend-
ment of pleadings and favors the disposition of cases on their merits. The State's fact-pleading requirement, in particular, imposes on litigants an obligation to allege the specific factual basis for their contentions, and often such facts only come to light well into the course of the case. Especially in situations
where discovery close to trial has produced new evidence to support claims or defenses, Circuit judges
will generally look favorably on motions to amend. In ruling on such motions, courts will consider
whether the proposed amendment 1) will cure a defect; 2) will prejudice or surprise the other parties; 3)
is timely sought; and 4) whether the movant has had other opportunities to amend. Loyola Academy,
146 Ill. 2d at 273, 586 N.E.2d at 1215-16. An undue delay in seeking an amendment can constitute a
waiver of the claim or defense. Dever v. Simmons, 292 Ill. App. 3d 70, 75, 684 N.E.2d 997, 1001 (1st Dist.
1997).
In Federal Court, Federal Rule of Civil Procedure ("FRCP") 15(a) provides that leave to amend "shall
be freely given when justice so requires." Federal Courts also favor resolution on the merits. Foman v.
Davis, 83 S.Ct. 227, 230, 371 US 178, 181-82 (1962). However, amendment will be denied where the
court concludes that the movant has delayed unduly, has acted with dilatory intent, or the amendment
will prejudice the adversary. See, e.g., Sanders v. Venture Stores, Inc., 56 F.3d 771, 775 (7th Cir. 1995);
Garner v. Kinnear, 37 F.3d 263, 269 (7th Cir. 1994); Figgie Int'l, Inc. v. Miller, 966 F.2d 1178, 1180-81 (7th
Cir. 1992).
Federal judges usually set firm dates at the outset of the case for the completion of discovery and
trial. As a result, federal judges often tend to be less forgiving of delay than their state counterparts. On
the other hand, in contrast to Illinois' fact-pleading requirements, FRCP 8 requires notice pleading only.
For plaintiffs, stating claims broadly is much easier. For defendants, FRCP 8(c) does not require much
more than boilerplate in the allegation of affirmative defenses. Williams v. Jader Fuel Co., 944 F.2d 1388,
1400 (7th Cir. 1991).
Completion of Discovery
State and federal court case management orders almost certainly set dates for the close of all discovery.
At 90 days before trial, 11th-hour discovery requests or disputes will not favorably impress your judge.
Illinois Supreme Court Rule 218(c) requires that the court order all discovery completed by 60 days before trial. While parties sometimes stipulate to invade the 60-day period, courts may be unwilling to intervene in disputes or enforce requests during this period.
In Federal Court, the Court's scheduling order will have set a date for the completion of discovery.
Section 4 of the Standing Order on Pretrial Procedure states: "Discovery must be complete by the discovery closing date." Under FRCP 29, while parties may generally stipulate to continuances of discovery
deadlines, they must seek court approval for any continuance that could run beyond the time for completion of discovery.
There will almost always be some discovery activity in the 90 days preceding trial. Review your discovery responses and document production to ensure that you have disclosed all that is required. Under
both Illinois and federal procedure, parties have an ongoing duty to seasonably supplement their discovery responses. Failure to do so can lead to impeachment or evidence sanctions.
In state court, pay particular attention to your expert disclosures under Illinois Supreme Court Rule
213(f)(2) and (3). Under Rule 213 (g), the Court will not allow an expert to testify to any opinions not
previously expressed in a 213(f) interrogatory response or in a discovery deposition. Ensure that all opinions and all bases on which your expert will rely appear in either the discovery responses or in the depositions.
Similarly in federal court, FRCP 26(a)(2)(C) and 26(e)(1) require that parties supplement their expert
disclosures to reflect information not contained in the original expert disclosures or expert depositions.
Failure to do so can result in evidence exclusion. Also, if the court has not set a time for disclosure of
rebuttal expert opinion witnesses, you need to make sure that you disclose to your adversary any rebuttal evidence you intend to produce. Under FRCP 26(a)(2), rebuttal disclosures must be made within 30
days of an opposing expert's Rule 26(a)(2) disclosure. Certain federal judges have particular requirements
regarding rebuttal witnesses.
Ensuring the Availability of Evidence at Trial
Witnesses and Documents
As trial draws near, make sure that you can present the witnesses and documents you need to prove
your case.
Live testimony is favored over deposition testimony. Inform your client and employee witnesses of
the trial date as soon as you learn it yourself. Your witnesses should know that they will be needed and
avoid scheduling conflicts. If a retained expert will be unavailable, you may need to retain a different
expert.
With respect to witnesses that you do not control, subpoena them a reasonable time before the
scheduled trial date. Where the witnesses are third parties, it is often a good idea to let the witnesses
know that they will be receiving a subpoena. Lay persons can find the service of a subpoena intimidating, but less so if they know about it beforehand. Extending that courtesy will help keep your witness
cooperative with you.
In state court, Supreme Court Rule 237 allows parties to subpoena witnesses for trial and also to
demand that the opposing parties produce officers, directors or employees at trial. Requests pursuant to
Rule 237 may include demands to produce the originals of documents and tangible things produced in
discovery. You may also avoid having to demand the production of original documents by issuing timely
(before the close of discovery) requests for admission to overcome hearsay objections and establish the
authenticity of documents. Rule 237 is not, however, a discovery device, and a party cannot use it to obtain material that will not be relevant to the trial. Bearden v. Hamby, 249 Ill. App. 3d 779, 782, 608 N.E.2d
282, 284 (1st Dist. 1992). Expect a challenge if you use a Rule 237 demand to seek materials which you
did not obtain during discovery.
In District Court, the Federal Rules do not contain a procedure requiring parties to produce witnesses and materials at trial without the necessity of a subpoena. FRCP 45 controls the issuance of trial subpoenas, and permits a request for production of documents. You may use timely requests for admission
to overcome potential objections to forms of documentary evidence, obviating the need for trial subpoenas of original documents held by your opponent. Federal courts do not favor the use of trial subpoenas as last minute discovery devices.
Deposition Testimony
Invariably, witnesses become unavailable, necessitating the use of deposition testimony at trial. In state
court, "unavailability" is defined by Illinois Supreme Court Rule 212(b). Where your witness becomes, or
is likely to become, "unavailable," you will need to schedule an evidence deposition under Rule 202. If
your witness becomes unavailable after the close of discovery, you and your opponent will need to
come to an agreement as to the scheduling and terms of the evidence deposition, or you will need to
ask for the Court's assistance. You will need to explain the need for the deposition and rebut an opponent's claim of poor planning. Most judges favor accommodations necessary to ensure the disposition of
cases on their merits.
In federal court, if you learn that a witness may become "unavailable" to testify at trial before taking
that witness's deposition, you need a stipulation from your opponent or an order from the court allowing a deposition to go forward after the close of discovery. The Federal Rules do not differentiate between discovery and evidence depositions, but allow any deposition to be used in evidence given witness unavailability. FRCP 32 (a) sets forth the circumstances in which deposition testimony may be used
at trial.
Dispositive Motions to Avoid Trial or Narrow its Scope
At 90 days before trial, if not sooner, you need to consider whether your case presents triable issues.
"Consolidating your position" includes evaluating the evidence and determining whether motion practice
can resolve or narrow the case. By this juncture, you know not only your evidence, but all of your adversary's evidence, including expert opinion testimony. Judges are unlikely to defer dispositive rulings on
the ground that your opponent has had an inadequate opportunity to conduct discovery. Dispositive
motions thus have an optimal chance of success, and play a very important role in focusing the court,
and the parties, on the evidence.
Indeed, even if a motion for summary judgment does not resolve the case, it can provide leverage
for settlement, educate your judge as to weak claims, or provide a valuable preview as to how the court
will rule on key issues. Motions for partial summary judgment (also known as "summary determination of
major issues") can also play an important role in trial preparation. They can often remove issues from the
case, thereby reducing trial time and expense. They can also serve much the same purpose as motions in
limine, allowing you to exclude irrelevant evidence that could confuse or inflame the jury. They have the
added advantage of allowing an earlier ruling than usually achieved through a motion in limine.
In state court, procedures governing the filing of motions for summary judgment and "summary determination of major issues" appear at 735 ILCS 5/2-1005, and at Illinois Supreme Court Rules 191 and
192. For a thorough treatment of state court practice, see Jennifer Duncan-Brice et al., Illinois Pretrial
Practice (2002). However, two aspects of local practice require special mention. First, under Local Rule
2.1(f), the Law Division requires that parties present motions for summary judgment not later than 45
days before the trial date, unless the court has provided otherwise. Second, many, if not most, judges
have imposed a page limit on briefs filed in support of or in opposition to motions -- typically 15 pages.
Some judges will allow longer briefs, but you should never file a longer brief without express leave of
court. If you think you will need additional space, you should seek leave to file a brief of greater length
sufficiently far in advance of the due date. As a general matter, you will need to present a compelling
explanation of the need for more pages, and ask only for what you need.
In District Court, FRCP 56 is, itself, relatively straight forward, but dispositive motion practice in the
Northern District does contain several important differences compared to Illinois state practice.
Practitioners seeking or opposing summary judgment must strictly comply with the requirements of
Local Rule 56.1. This local rule requires that the moving party submit a "statement of material facts as to
which the moving party contends that there is no genuine issue and that entitle the moving party to
judgment as a matter
of law." This statement, usually referred to as a "separate statement of undisput-
ed material facts," must set forth in numbered paragraph format all factual averments necessary to the
motion, with citations to supporting evidence found in the affidavits or other evidentiary matters. Failure
to present this separate statement constitutes grounds for the denial of the motion. LR 56.1 also limits
the moving party to no more than 80 separately-numbered undisputed material facts, and requires that
the moving party include in a separate statement facts supporting federal jurisdiction and venue in the
Northern District.
A party opposing summary judgment must respond directly to the moving party's separate statement by identifying whether die fact is truly undisputed, and, if disputed, by identifying admissible evi-
dence on which it bases its response. Failure to controvert the moving party's separate statements results in deemed admissions. Courts of the Northern District routinely grant summary judgment where
the opposing party fails to controvert the moving party's separate statement. See, e.g., In re Motorola
Securities Litigation, 2007 WL 487738 (N.D. Ill. 2007). The opposing party may also submit its own separate statement of additional facts requiring that summary judgment be denied, with a limit of 40 such
"additional facts." The moving party must respond directly to the opposing party's statement of additional facts, citing evidence on which it controverts the additional facts. The court will deem "admitted"
all additional facts not controverted by the moving party.
Under Local Rule 7.1, the Northern District has adopted a uniform limit of 15 pages on briefs. Federal judges will often be more receptive to requests for additional space than their state counterparts, but
the same admonitions apply: seek leave before your filing date and do not test the court's patience. Also, most of the judges in the Northern District have their own requirements regarding summary judgment motions which you absolutely must consult. You can find these requirements on your judge's web
page on the Northern District website.
Settlement
Ninety days before trial should not be the first time that you consider settlement, but it is often the "last
best chance" for informal resolution. The complete record allows both sides to make well-informed decisions about the value of the case. Also, a looming trial date will often cause clients to reconsider emotional or hard line positions taken before the prospect of trial time, business interruption, appeals, and a
remote payday seem real.
Whether you find yourself in state or federal court, the Court will attempt to facilitate settlement discussions. Of course, willing parties may not need the Court's assistance, and can always settle on their
own or pursue ADR through a private service such as JAMS or AAA. However, the state and federal court
systems each offer formal programs to foster settlement.
In Cook County, the parties can ask their calendar or motion judge to hold a settlement conference.
Alternatively, the Court has implemented two court-sponsored mediation programs pursuant to Illinois
Supreme Court Rule 99. The Law Division and Chancery Division both offer "Court-Annexed" mediation
programs that allow litigants to receive the assistance of a neutral in resolving their dispute. See Local
Rules 20.01 et seq. and 21.01 et seq. Both mediation programs allow the parties the freedom to select
their own qualified mediator, or, failing agreement, allow the court to appoint a mediator of its choosing. If the parties do not enter the program voluntarily, the Court can sua sponte order them to participate (although it will entertain motions for relief from court ordered mediation.).
Under the Northern District's Standing Order Establishing Pretrial Procedure, the Court will require
the parties to address the possibility of settlement at their initial scheduling conference. The Standing
Order also requires the parties to undertake good faith settlement discussions prior to the submission of
the final pretrial order. Individual judges have their own procedures for promoting settlement.
District Court judges will often preside over settlement conferences in matters pending before them,
except in cases that will involve a bench trial, in which instance your judge will probably refer the matter
to another judge of the district. In many cases, you will have the option to request a mediation with a
magistrate judge. Several of the magistrate judges are truly experts at conducting settlement negotiations, and will devote substantial effort to getting cases resolved. Indeed, several of the magistrates have
posted settlement guidelines on their web pages that offer useful advice on how to condition your client
for settlement, and how to approach mediation sessions.
Conclusion
The 90 day period preceding trial is a time for evaluating what you have done in the case so far, and
how that evidence affects your prospects going forward. You need to make sure that you can present
your case to the trier of fact, but you should also consider whether trial is necessary and in your client's
best interests. With careful attention to the procedural requirements of the state and federal courts in
which you practice, you can consolidate your client's position and move forward in the manner that best
serves your client's interests. The next portion of this article will address trial preparation, and getting
your case ready for the trier of fact.