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Rule 16 – Pretrial conference; scheduling; management

May 14, 2021 | Civil Procedure, West Virginia

(a)Pretrial conferences; objectives. – In any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences before trial for such purposes as:

(1) Expediting the disposition of the action;
(2) Establishing early and continuing control so that the case will not be protracted because of lack of management;
(3) Discouraging wasteful pretrial activities;
(4) Improving the quality of the trial through more thorough preparation; and
(5) Facilitating the settlement of the case.
(b)Scheduling and planning. – Except in categories of actions exempted by the Supreme Court of Appeals, the judge shall, after consulting with the attorneys for the parties and any unrepresented parties, by a scheduling conference, telephone, mail or other suitable means, enter a scheduling order that limits the time:

(1) To join other parties and to amend the pleadings;
(2) To file and hear motions; and
(3) To complete discovery.

The scheduling order also may include:

(4) The date or dates for conferences before trial, a final pretrial conference, and trial; and
(5) Any other matters appropriate in the circumstances of the case.

A schedule shall not be modified except by leave of the judge.

(c)Subjects for consideration at pretrial conferences. – At any conference under this rule consideration may be given, and the court may take appropriate action, with respect to:

(1) The formulation and simplification of the issues, including the elimination of frivolous claims or defenses;
(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, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence;
(4) The avoidance of unnecessary proof and of cumulative evidence; and limitations or restrictions on the use of testimony under Rule 702 of the West Virginia Rules of Evidence;
(5) The appropriateness and timing of summary adjudication under Rule 56;
(6) The control and scheduling of discovery;
(7) The identification of witnesses and documents, the need and schedule for filing and exchanging pretrial briefs, and the date or dates for further conferences and for trial;
(8) The advisability of referring matters to a commissioner or master;
(9) The possibility of settlement or the use of extrajudicial procedures to resolve the dispute;
(10) The form and substance of the pretrial order;
(11) The disposition of pending motions;
(12) The need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;
(13) An order for a separate trial pursuant to Rule 42(b) with respect to a claim, counterclaim, cross-claim, or third-party claim, or with respect to any particular issue in the case;
(14) An order directing a party or parties to present evidence early in the trial with respect to a manageable issue that could, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c);
(15) An order establishing a reasonable limit on the time allowed for presenting evidence; and
(16) Such other matters as may facilitate the just, speedy, and inexpensive disposition of the action.

At least one of the attorneys for each party participating in any conference before trial shall have authority to enter into stipulations and to make admissions regarding all matters that the participants may reasonably anticipate may be discussed. If appropriate, the court may require that a party or its representative be present or reasonably available by telephone in order to consider possible settlement of the dispute.

(d)Final pretrial conference. – Any final pretrial conference shall be held as close to the time of trial as reasonable under the circumstances. The participants at any such conference shall formulate a plan for trial, including a program for facilitating the admission of evidence. The conference shall be attended by at least one of the attorneys who will conduct the trial for each of the parties and by any unrepresented parties.
(e)Pretrial orders. – After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control the subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.
(f)Sanctions. – If a party or party’s attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party’s attorney is substantially unprepared to participate in the conference, or if a party or party’s attorney 47 fails to participate in good faith, the judge, upon motion or the judge’s own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), and (D). In lieu of or in addition to any other sanction, the judge may require the party or the attorney representing the party or both to pay reasonable expenses incurred because of any noncompliance with this rule, including attorney’s fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

W.Va. R. Civ. P. 16