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Rule 16 – Pre-trial Procedure: Formulating Issues

May 13, 2021 | Civil Procedure, Indiana

(A) When required-Purpose. In any action except criminal cases, the court may in its discretion and shall upon the motion of any party, direct the attorneys for the parties to appear before it for a conference to consider:

(1) the simplification of the issues;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(4) a limitation of the number of expert witnesses;
(5) an exchange of names of witnesses to be called during the trial and the general nature of their expected testimony;
(6) the desirability of using one or more types of alternative dispute resolution under the rules therefor;
(7) the desirability of setting deadlines for dispositive motions in light of the date set for trial; and
(8) such other matters as may aid in the disposition of the action.
(B) When called-Notice-Participants. Unless otherwise ordered by the court the pre-trial conference shall not be called until after reasonable opportunity for the completion of discovery.

(1) Notice. The clerks shall give at least thirty [30] days’ notice of the pre-trial conference unless otherwise directed by the court.
(2) Participants. At least one [1] attorney planning to take part in the trial shall appear for each of the parties and participate in the pre-trial conference.
(C) Conference of attorneys. Unless otherwise ordered by the court, at least ten [10] days prior to the pre-trial conference, attorneys for each of the parties shall meet and confer for the following purposes:

(1) Exhibits. Each attorney shall mark for identification and provide opposing counsel an opportunity to inspect and copy all exhibits which he expects to introduce at the trial. Numbers or marks placed on such exhibits shall be prefixed with the symbol “P/T”, denoting its pre-trial designation. When the exhibit is introduced at the trial of the case, the “P/T” designation will be stricken and the exhibits must also indicate the party identifying same.

Exhibits of the character which prohibit or make impracticable their production at conference shall be identified and notice given of their intended use. Necessary arrangements must be made to afford opposing counsel an opportunity to examine such exhibits.

(2) Exhibit stipulations. Written stipulations shall be prepared with reference to all exhibits exchanged or identified. The stipulations shall contain all agreements of the parties with reference to the exchanged and identified exhibits, and shall include, but not be limited to, the agreement of the parties with reference to the authenticity of the exhibits, their admissibility in evidence, their use in opening statements, and the provisions made for the inspection of identified exhibits. The original of the exhibit stipulations shall be presented to the court at the pre-trial conference.
(3) Fact stipulation. The attorneys shall stipulate in writing with reference to all facts and issues not in genuine dispute. The original of the stipulations shall be presented to the court at the time of the pre-trial conference.
(4) Exchange list of witnesses. Attorneys for each of the parties shall furnish opposing counsel with the written list of the names and addresses of all witnesses then known. The original of each witness list shall be presented to the court at the time of the pre-trial conference.
(5) Discuss Administrative Rule 9(G) issues that may arise during the proceedings.
(6) Discuss settlement. The possibility of compromise settlement shall be fully discussed and explored.
(D) Preparation for conference of attorneys and pre-trial. Each attorney shall completely familiarize himself with all aspects of the case in advance of the conference of attorneys and be prepared to enter into stipulations with reference to as many facts and issues and exhibits as possible.
(E) Duty to arrange conference. It shall be the duty of counsel for both plaintiff and defendant to arrange for the conference of attorneys at least ten [10] days in advance of the pre-trial conference.
(F) Refusal to stipulate. If, following the conference of attorneys, either party determines that there are other facts or exhibits that should be stipulated and which opposing counsel refuses to stipulate upon, he shall compile a list of such facts or exhibits and furnish same to opposing counsel at least two [2] days in advance of the pre-trial conference. The original of the list shall be presented to the court at the time of the pre-trial conference.
(G) Witnesses or exhibits discovered subsequent to conference of attorneys and before a pre-trial conference. If, after the conference of the attorneys and before the pre-trial conference, counsel discovers additional exhibits or names of additional witnesses, the same information required to be disclosed at the conference of the attorneys shall be immediately furnished opposing counsel. The original of any such disclosures shall be presented to the court at the time of the pre-trial conference.
(H) More than one pre-trial conference. If necessary or advisable, the court may adjourn the pre-trial conference from time to time or may order an additional pre-trial conference.
(I) Witnesses or exhibits discovered subsequent to pre-trial conference. If, following the pre-trial conference or during trial, counsel discovers additional exhibits or the names of additional witnesses, the same information required to be disclosed at the conference between attorneys shall be immediately furnished opposing counsel. The original of any such disclosure shall immediately be filed with the court and shall indicate the date it was furnished opposing counsel.
(J) Pre-trial order. The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleading, and the agreements made by the parties as to any of the matters considered which limit the issues for trial to those not disposed of by admissions or agreement of counsel, and such order when entered shall control the subsequent course of action, unless modified thereafter to prevent manifest injustice. The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided, and may either confine the calendar to jury actions or non-jury actions or extend it to all actions.
(K) Sanctions: Failure to appear. If without just excuse or because of failure to give reasonable attention to the matter, no appearance is made on behalf of a party at a pre-trial conference, or if an attorney is grossly unprepared to participate in the conference, the court may order either one or both of the following:

(1) the payment by the delinquent attorney or party of the reasonable expenses, including attorney’s fees, to the aggrieved party; or
(2) take such other action as may be appropriate.

Ind. R. Civ. P. 16