PREPARATION OF FINAL PRETRIAL ORDER
For Civil Cases Before Judge Gilbert
The parties shall jointly prepare and submit a Final Pretrial Order containing the
following components, absent prior modification by the Court. Non-compliance with any
of these requirements will subject a party and/or counsel to the imposition of sanctions.
An original and one (1) copy of the Final Pretrial Order shall be submitted delivered to
Chambers.
Contents of the Pretrial Order
The subjects discussed below should be addressed in separate, tabbed and
numbered sections of the Pretrial Order. The Pretrial Order either should be placed in a
three-hole binder or clipped at the top left corner of the document, with tabs on the right
side.
1. Jurisdiction. A concise statement of the basis for federal subject matter
jurisdiction, and if jurisdiction is disputed, the nature and basis of the dispute.
2. Claims. A concise joint statement (1 or 2 short paragraphs) of the claim(s) of
the plaintiff(s), defense(s) of defendant(s), and all counterclaims and cross claims and the
defenses to them. In a jury trial, this statement will be read to the jury during voir dire.
3. Relief sought. An itemization of the damages and other relief sought.
4. Contested Issues. A concise, numbered list of the contested issues of fact
and/or law.
5. Witnesses. A list of names and addresses of all witnesses including experts:
(a) who will be called; (b) who may be called; (c) whose deposition will be used. In a
jury trial, this list will be read to the jury during voir dire. Any witness not listed in the
Pretrial Order will be precluded from testifying absent a showing of very good cause,
except that each party reserves the right to call such rebuttal witnesses (who are not
presently identifiable as rebuttal witnesses) as may be necessary.
a. Objections. A statement of any objections to the calling of any witness,
including expert witnesses. Objections not made in the Pretrial Order will be
deemed waived absent a showing of good cause. If the objection is the subject of
a motion in limine, the Pretrial Order may simply refer to the motion and need not
repeat the grounds stated in the motion.
b. Depositions. For each witness whose deposition will be used, the party
that intends to call that witness shall submit the witness’s deposition transcript
with the testimony the party intends to read to the jury highlighted in yellow. The
opposing party shall highlight its counter-depositions in pink. Any party that
objects to the other party’s designations shall submit a list of its objections by
page and line number and the basis for the objection. The opposing party shall
submit its response to such objections. This can be done in separate documents or
in a side-by-side presentation in a Word table or Excel spreadsheet. The basis for
an objection and the response shall be stated as succinctly as possible with
appropriate citations to evidentiary rules or case law. Objections not made in the
pretrial order will be deemed waived absent a showing of good cause. If the
Court will be called upon to rule upon objections, a copy of the deposition is to be
provided with the pretrial order.
6. Exhibits. A schedule of all exhibits a party may introduce at trial, as well as
any demonstrative exhibits or evidence, identified by trial exhibit number, with a brief
description of each exhibit. Any exhibit not listed in the Pretrial Order will be excluded
from evidence. Joint exhibits should be denominated “JX,” plaintiff’s exhibits, “PX” and
defendant’s exhibits, “DX.” Copies of the exhibits should be included with the Pretrial
Order, if practical, or submitted in a separate binder or folder.
a. Objections. A statement of any objections to each exhibit. Objections
not made in the Pretrial Order will be deemed waived. The parties should follow a
similar format for objections to exhibits as is outlined above for deposition
designations.
b. Exhibits to be displayed to jury. If an exhibit is to be displayed to the
jury, the party intending to display the exhibit must make sufficient copies for all
jurors or must use an enlargement or projection of the exhibit.
7. Type and length of trial. A statement of whether the trial will be a bench trial
or jury trial, and a realistic estimate of the length of the trial. A typical trial day before
Judge Gilbert will begin at 9:30 a.m. and end at 4:30 or 5 p.m., with a break of
approximately 60 to 75 minutes for lunch and 15 minute mid-morning and mid-afternoon
breaks.
8. Proposed findings and conclusions. For a bench trial, proposed findings of
fact and conclusions of law. The parties shall confer about proposed findings of fact and
law as to which they agree and submit those to the Court. Each party also shall submit its
separate proposed findings of fact and conclusions of law. Proposed findings shall be
submitted on a CD formatted in a relatively current version of WordPerfect or Word.
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9. Proposed voir dire questions. For a jury trial, proposed voir dire questions.
Judge Gilbert often uses a written questionnaire as the initial basis for voir dire. Sample
jury questionnaires with general questions used in all cases and questionnaires tailored
for particular cases are available on Judge Gilbert’s court website or from Chambers.
The parties should include any particular voir dire questions they want asked in their the
Pretrial Order. If any question proposed by an opposing party is objected to, the objection
should be noted in the Pretrial Order.
10. Proposed jury instructions. For a jury trial, proposed jury instructions are to be
included both in the written Pretrial Order and on a CD, in WordPerfect or Word format.
When there is a Seventh Circuit pattern jury instruction on point, that instruction should
be used absent a very good reason for not doing so.
a. Agreed instructions. The parties are directed to confer and agree upon
jury instructions to the extent possible prior to the submission of the jury
instructions to the Court. Agreed proposed instruction should be marked as such
and shall be numbered consecutively.
b. Disputed instructions. Proposed instructions that are not agreed shall
be numbered, shall identify the proponent of the instruction, and shall include
supporting authority. Objections to any proposed instructions must be set forth in
writing and shall include supporting authority.
11. Stipulations. A listing of any stipulations agreed to by the parties, including
stipulations regarding the presentation or admissibility of evidence.
12. Settlement status. A statement summarizing the current status of settlement
negotiations and whether the parties believe a pretrial settlement conference would be
productive.
13. Trial Briefs. Trial briefs are required as part of the Pretrial Order in bench
trials. Ordinarily, Judge Gilbert will not accept trial briefs in a jury trial, unless he has
granted a prior motion to file such a brief or ordered the filing of a trial brief sua sponte.
Any trial briefs shall be limited to 15 pages without leave of court.
Motions in limine
The Court will set a schedule for the filing of motions in limine when it sets dates
for the filing of the Pretrial Order. These motions and responses should not be bound with
the Pretrial Order. They should be filed separately on the CM/ECF system. Two (2)
courtesy copies of any motions in limine shall be delivered to Chambers in accordance
with the Local Rules.
Judge Gilbert discourages the filing of “boilerplate” motions in limine or motions
that address matters not in dispute. Any motion in limine filed by a party must be
accompanied by a statement that the party has conferred with the opposing party and has
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determined that the matter upon which a ruling is sought is actually in dispute – that is,
that the opposing party actually intends to offer the evidence that the movant seeks to
exclude. If the meet-and-confer process results in agreement that certain matters are
inadmissible, that agreement should be memorialized in a stipulation to be provided to
Judge Gilbert in the Pretrial Order (see paragraph 11 above) or at the final pretrial
conference.
Absent prior leave of court, each side is limited to a total of five (5) motions in
limine.
Daily / expedited transcript and real-time reporting
Any requests for daily or other expedited transcripts and real-time reporting must
be made at least seven (7) days prior to trial so that an appropriate court reporter can be
assigned to the trial.
Evidence projection systems
The Court has a limited number of evidence projection systems which may or
may not be available depending on how early a request is made. Any such request should
be made to Judge Gilbert’s Courtroom Deputy. Parties will be permitted to use their own
projection systems, upon reasonable terms, if a request is made in advance of trial.
Instructions for compiling final pretrial order
Plaintiff’s counsel has the responsibility to prepare the initial draft of the Pretrial
Order and must provide a draft to defendant’s counsel no later than twenty-one (21) days
before the date the Pretrial Order is due. Defendant’s counsel must respond in writing to
plaintiff’s draft by no later than fourteen (14) days before the Pretrial Order is due,
including any objections, changes, and additions to plaintiff’s draft, as well as
defendant’s portions of the draft Pretrial Order (e.g., defendant’s witness list, exhibit list,
and objections to exhibits and deposition testimony listed by plaintiff). The parties must
meet and confer by no later than seven (7) days before the Pretrial Order is due to discuss
their respective drafts and to reach agreement to the extent possible. Any non-compliance
with these requirements will subject a party and/or its counsel to imposition of sanctions.
Following the meet-and-confer process, it is responsibility of plaintiff’s counsel,
with full cooperation from defendant’s counsel, to assemble the Pretrial Order for
submission. The Pretrial Order should be submitted filed on the CM/ECF system with a
cover page setting for the case caption and the title FINAL PRETRIAL ORDER. The
cover page must: (a) recite that each of the foregoing categories of materials is included;
(b) must state that “This Order will control the course of the trial and may not be
amended except by consent of the parties, or by order of the Court to prevent manifest
injustice;” and (c) must be signed by counsel for each of the parties and contain a space
for the Judge Gilbert’s signature.
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Pretrial conferences
Often, the Court will hold an initial pretrial conference with lead trial counsel to
discuss case theories, trial plan, anticipated motions in limine and other pretrial matters.
The purpose of this conference is to resolve issues that can be resolved easily and to
provide the Court with a better sense of the case particularly when Judge Gilbert was not
involved substantially in pretrial discovery or other proceedings.
The Court will set a date for the final pretrial conference at least three weeks
before trial. The purpose of this conference is to avoid surprises and to simplify the trial.
At the conference, Judge Gilbert will address pending motions in limine, objections to
witnesses and exhibits, and contested jury instructions, and will discuss trial procedures
and scheduling. Lead trial counsel fully prepared and with authority to discuss all aspects
of the case must attend. The parties need not attend the pretrial conference unless
settlement will be discussed at the conference. The parties, however, are welcome to
attend the pretrial conference with their lawyers if they wish to do so.
Date: 7/28/17 ENTER:
Jeffrey T. Gilbert
United States Magistrate Judge
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