REVISED September 2011
[Note: Throughout, material in brackets is provided as guidance to counsel as to the Court’s
practices and/or the matter that needs to be addressed in the Proposed Final Pretrial Order.]
PROPOSED FINAL PRETRIAL ORDER
This matter comes before the Court at a final pretrial conference held pursuant to Rule 16
of the Federal Rules of Civil Procedure and Local Rule 16.3.
Plaintiff(s) Counsel: [List name, address, telephone number, and e-mail address(es)]
Defendant(s) Counsel: [List name, address, telephone number, and e-mail address(es)]
I. Nature of the Case
[The parties should prepare a brief statement of the nature of the case (personal injury,
federal tort claim, breach of contract, patent infringement, etc.) including the claims of the
parties. The principal purpose of this statement is to assist the Court in explaining the case to
prospective jurors upon selection of a jury.]
II. Jurisdiction
This is an action for [state the remedy sought, such as damages or injunctive or
declaratory relief].
The jurisdiction of the Court is not disputed [or, if the issue has not previously been
raised, the basis on which jurisdiction is contested] and is based on [state the statutory,
constitutional, or other basis of jurisdiction].
III. Facts
A. Uncontested Facts
The following facts are not disputed or have been agreed to or stipulated to by the parties:
[This section should contain a comprehensive statement of the facts which will become a
part of the evidentiary record in the case and which, in jury trials, may be read to the jury at the
beginning of the evidentiary portion of the trial.]
B. Contested Facts
[Identify the facts in issue, with a brief statement of what each party intends to prove in
support of its claims and/or defenses. These summaries should be sufficient to identify for the
Court the essential facts in issue and to fairly notify the other parties of what counsel expects to
prove at trial.]
IV. Issues of Law
[Include a statement of the issues of law which any party contends remain to be litigated,
and a citation of authorities relied upon by each party.]
[The Court will preclude a party from seeking relief based on claims and defenses not
described in the draft pretrial order.]
V. Witnesses
[Indicate which witnesses will testify in person and which by deposition. Any witness
not listed will be precluded from testifying, absent good cause shown. Indicate if there are any
objections to a witness and, if so, briefly state the basis for the objection.]
[In the absence of an alternative agreement between the parties, witnesses will be
sequestered. Also, unless the parties reach an alternative agreement, the order of the
presentation of evidence will follow the burden of proof.]
A. List of Witnesses the Plaintiff Expects to Call
1. Expert witnesses
2. Non-expert witnesses
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B. List of Witnesses Defendant Expects to Call
1. Expert witnesses
2. Non-expert witnesses
C. List of Witnesses Third Parties Expect to Call
[If there are any third parties to the action, they should include an identical list of
witnesses as that contained in Parts A and B above.]
D. Testimony by Deposition
[Counsel should confer prior to the pretrial conference to determine which testimony will
be offered by deposition (including video tape depositions), to agree on the designation of those
portions of the depositions to be offered into evidence, and to identify objections. If there are
objections that will need to be resolved, counsel will submit the transcript and a summary of the
objections with the draft pretrial order. All irrelevant and redundant material, including colloquy
between counsel and objections, will be eliminated when the deposition is read or viewed at
trial.]
VI. Exhibits
A. Exhibits
[The parties are to provide a list of pre-marked exhibits that each party intends to offer
at trial, along with citations to the Federal Rules of Evidence to note any objections thereto
lodged by any other party. Exhibits not listed will not be admitted unless good cause is shown.
Exhibits not objected to will be received into evidence by the operation of the Final Pretrial
Order without the need for additional foundation testimony.]
On or before the first day of trial, counsel will deliver to the Courtroom Deputy a
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completed AO Form 187 exhibit list for each party.
A party will provide exhibits to be used in connection with direct examination by 3:00
p.m. the day before their intended use, and objections will be provided no later than 7:30 p.m.
the night before their intended use. If good faith efforts to resolve the objections fail, the party
objecting to the exhibits shall bring its objections to the Court’s attention prior to the witness
being called to the witness stand.
B. Demonstrative Exhibits
The parties will exchange demonstratives to be used in opening statements by 8:00 p.m.
two nights before opening statements. The parties will provide any objections to such
demonstratives by 12:00 noon on the day before opening statements.
A party will provide demonstrative exhibits to be used in connection with direct
examination by 3:00 p.m. the day before their intended use, and objections will be provided
no later than 7:30 p.m. the night before their intended use. If any of the demonstratives change
after the deadline, the party intending to use the demonstrative will promptly notify
the opposing party of the change(s).
The party seeking to use a demonstrative will provide a color representation of the
demonstrative to the other side in PDF form. However, for video or animations, the party
seeking to use the demonstrative will provide it to the other side on a DVD or CD. For
irregularly sized physical exhibits, the party seeking to use the demonstrative will provide a
color representation as a PDF of 8.5 x 11 copies of the exhibits.
This provision does not apply to demonstratives created during testimony or
demonstratives to be used for cross examination, neither of which need to be provided to the
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other side in advance of their use. In addition, blow-ups or highlights of exhibits or parts of
exhibits or testimony are not required to be provided to the other side in advance of their use.
If good faith efforts to resolve objections to demonstrative exhibits fail, the objecting
party shall bring its objections to the Court’s attention prior to the opening statements or prior to
the applicable witness being called to the witness stand.
VII. Damages
[Include an itemized statement of all damages, including special damages.]
VIII. Bifurcated Trial
[Indicate whether the parties desire a bifurcated trial, and, if so, why.]
IX. Motions in Limine
[Motions in limine shall not be separately filed. All in limine requests and responses
thereto shall be set forth in the proposed pretrial order. Each party shall be limited to five (5) in
limine requests, unless otherwise permitted by the Court. The in limine request and any response
shall contain the authorities relied upon; each in limine request may be supported by a maximum
of three (3) pages of argument and may be opposed by a maximum of three (3) pages of
argument, and the party making the in limine request may add a maximum of one (1) additional
page in reply in support of its request. If more than one party is supporting or opposing an in
limine request, such support or opposition shall be combined in a single three (3) page
submission (and, if the moving party, a single one (1) page reply), unless otherwise ordered by
the Court. No separate briefing shall be submitted on in limine requests, unless otherwise
permitted by the Court.]
X. Discovery
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Each party has completed discovery.
XI. Number of Jurors
There shall be eight jurors. The Court will conduct jury selection through the “struck
juror” method, beginning with the Court reading voir dire to the jury panel in the courtroom,
continuing by meeting with jurors individually in chambers and there addressing any challenges
for cause, and concluding back in the courtroom with peremptory strikes.
XII. Non-Jury Trial
[If the parties desire a detailed opinion from the Court post-trial, counsel should include a
proposed post-trial briefing schedule in the draft pretrial order.]
In their initial briefs, each party shall provide proposed Findings of Fact, separately
stated in numbered paragraphs, constituting a detailed listing of the relevant material facts the
party believes it has proven, in a simple narrative form. In their initial briefs, each party shall
also provide Conclusions of Law, with supporting citations.
XIII. Length of Trial
[The trial will be timed. Indicate the number of hours the parties request for their trial
presentations.]
Time will be charged to a party for its opening statement, direct and redirect
examinations of witnesses it calls, cross-examination of witnesses called by any other party, and
closing argument. The Courtroom Deputy will keep a running total of trial time used by counsel.
XIV. Amendments of the Pleadings
[Indicate any amendments of the pleadings desired by any party, along with a statement
whether the proposed amendment is objected to and, if objected to, the grounds for the
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objection.]
XV. Additional Matters
[List here any additional issues requiring resolution prior to trial, including whether the
parties anticipate requesting that the courtroom be closed to the public for a portion of any
specified witness’ testimony.]
XVI. Settlement
[Provide a certification that the parties have engaged in a good faith effort to explore the
resolution of the controversy by settlement, including a description of the overall extent of such
efforts and identification of the date of the most recent substantive discussions regarding
settlement.]
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IT IS HEREBY ORDERED that this Final Pretrial Order shall control the subsequent
course of the action, unless modified by the Court to prevent manifest injustice.
DATED: ___________________________
___________________________________
The Honorable Christopher J. Burke
UNITED STATES MAGISTRATE JUDGE
APPROVED AS TO FORM AND
SUBSTANCE:
___________________________________
ATTORNEY FOR PLAINTIFF(S)
___________________________________
ATTORNEY FOR DEFENDANT(S)
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