Rule 16. Pretrial Conferences; Scheduling; Management
(a) Pretrial Conferences; Objectives. (1) All procedures before trial shall be governed by Appendix G. (2) In any action, the court in its discretion by appropriate order may direct the attorneys for the parties and any unrepresented parties to confer and/or exchange:
(i) lists containing the names and addresses of all witnesses they respectively expect to call at trial;
(ii) lists of the documentary exhibits which they respectively intend to offer at trial;
(iii) written statements of material matters of fact as to which they respectively believe there is no substantial controversy;
(iv) written statements of issues of fact and law they respectively believe are in dispute; and
(v) such other matters as may be directed by the court.
(3) 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 or to arrange a telephone conference, or conferences for such purposes as:
(i) expediting the disposition of the action;
(ii) establishing early and continuing control so that the case will not be protracted because of lack of management;
(iii) discouraging wasteful pretrial activities;
(iv) improving the quality of the trial through more thorough preparation;
(v) facilitating the settlement of the case; and
(vi) such other matters as may aid in the disposition of the action.
(b) Scheduling and Planning. After the initial status report or conference, the court shall 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.
(c) Subjects To Be Discussed at Pretrial Conferences. The participants at any conference under this rule may consider and take 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;
(5) 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;
(6) the advisability of referring matters to a master;
(7) the possibility of settlement or the use of extrajudicial procedures to resolve the dispute;
(8) the form and substance of the pretrial order;
(9) the disposition of pending motions;
(10) 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; and
(11) such other matters as may aid in the 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.
(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 the 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, except that after the final pretrial conference the court may recite the contents of its order, other than scheduling matters, on the record. The pretrial 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 fails to participate in good faith, the court, upon motion or its 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), (D). In lieu of or in addition to any other sanction, the court shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorneys' fees, unless the court finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.
Amended General Order No. 13
The United States Court of Federal Claims is sensitive to rising litigation costs and the delay often inherent in the traditional judicial resolution of complex legal claims. While the mandates of due process inevitably place limits on how expeditious a trial of a complex issue can be, there are no such limits when parties voluntarily seek noncompulsory settlements. Since justice delayed is justice denied, it is an obligation of this court to further the settlement process in all ways consistent with the ultimate guarantee of a fair and complete hearing to those disputes that cannot be resolved by mutual consent. Courts are institutions of last resort and while preserving that "last resort" as a sacred trust, they should insure their use only when other methods of dispute resolution have failed. In response to these concerns, the court is implementing three methods of Alternative Dispute Resolution: Settlement Judges, Mini-Trials, and Third-Party Neutrals. The methods to be used in the Court of Federal Claims are described in the "Notice to Counsel" attached to this Order.
IT IS ORDERED, effective this date, that the Notice to Counsel shall be distributed as follows:
(1) to counsel for all parties in cases currently pending before the Court of Federal Claims, and
(2) to counsel for all parties in cases filed after the date of this Order.
November 8, 1996
By the Court
Chief Judge
NOTICE TO COUNSEL
Alternative Dispute Resolution Techniques
In response to rising litigation costs and the delay often inherent in the traditional judicial resolution of complex legal claims, the United States Court of Federal Claims is implementing three methods of alternative dispute resolution (ADR) for use in appropriate cases. The Court of Federal Claims encourages all reasonable avenues toward settlement of disputes, including the usual dialogue between the trial judge and counsel. Implementation by the court of these ADR methods does not preclude use by the parties of other ADR techniques which do not require court involvement.
The ADR methods outlined below are both voluntary and flexible, and should be employed early in the litigation process in order to minimize discovery. Both parties must agree to use the procedures. Because these procedures are designed to promote settlement and involve the application of judicial resources, however, the court views their use as most appropriate where the parties anticipate a lengthy discovery period followed by a protracted trial. These requirements typically will be met where the amount in controversy is greater than $100,000 and trial is expected to last more than one week.
When both counsel agree and wish to employ one of the ADR methods offered, they should notify the presiding judge of their intent as early as possible in the proceedings, or concurrently with submission of the Joint Preliminary Status Report required by Appendix G. The presiding judge will consider counsels' request and make the final decision whether to refer the case to ADR. If ADR is considered appropriate, the presiding judge will refer the case to the ADR Administrator 1) for assignment to a Court of Federal Claims judge who will act as a settlement judge or preside over a mini-trial, or 2) for the appointment of a third-party neutral. If the case is referred to an ADR judge, that judge will exercise ultimate authority over the form and function of each method within the general guidelines adopted by the court. Accordingly, the parties will promptly meet with the assigned ADR judge to establish a schedule and procedures for the technique chosen. Should none of these techniques produce a satisfactory settlement, the case will be returned to the presiding judge's docket. Except as allowed by Federal Rule of Evidence 408, all representations made in the course of the selected ADR proceeding are confidential and may not be used for any reason in subsequent litigation.
I. General Provisions
A. Administrator. There will be an ADR Administrator who will assign cases as well as facilitate the program. The Administrator will also keep statistics for each judge who volunteers to participate in the program on the number of pending ADR cases and the disposition of ADR cases.
B. Training. All judges, as well as third-party neutrals shall be properly trained in the handling of ADR matters.
C. Consent. Consent of all parties is required in order for a case to be referred to ADR.
D. Judicial Involvement. The Administrator will assign ADR cases only to judges who have agreed to participate in the program.
II. Settlement Judge
In many circumstances, settlement can be fostered by a frank, in-depth discussion of the strengths and weaknesses of each party's case before a neutral advisor. Although this alternative can be used successfully at any stage of the litigation, it is suggested that it be adopted as early in the process as feasible to eliminate unnecessary cost and delay. Moreover, the agenda for these meetings with the settlement judge should remain flexible to accommodate the requirements of the individual cases. Through this ADR method, the parties will gain the benefit of a judicial assessment of their settlement positions, without jeopardizing their ability to obtain an "impartial" resolution of their case by the presiding judge should settlement not be reached.
III. Mini-Trial
The mini-trial is a highly flexible, expedited procedure where each party presents an abbreviated version of its case to a neutral advisor (a judge other than the presiding judge), who then assists the parties in negotiating a settlement. Because the mini-trial similarly is designed to eliminate unnecessary cost and delay, it should be adopted before extensive discovery commences. This ADR technique, however, should be employed only in those cases which involve factual disputes and are governed by well-established principles of law. Cases which present novel issues of law or where witness credibility is a major factor are handled more effectively by traditional judicial methods.
Although the procedures for each mini-trial should be designed to meet the needs of the individual case, the following guidelines are appropriate in most circumstances:
(a) Time Frame-The mini-trial should be governed by strict time limitations. The entire process, including discovery and trial, should conclude within one to three months.
(b) Participants-Each party should be represented by an individual with authority to make a final recommendation as to settlement and may be represented by counsel. The participation of senior management/agency officials (principals) with first-hand knowledge of the underlying dispute is highly recommended.
(c) Discovery-Any discovery conducted should be expedited, limited in scope where feasible, and scheduled to conclude at least two weeks prior to the mini-trial. Counsel bear a special responsibility to conduct discovery expeditiously and voluntarily in a mini-trial situation. Any discovery disputes which the parties cannot resolve will be handled by the mini-trial judge. Discovery taken for the purpose of the mini-trial may be used in further judicial proceedings if settlement is not achieved.
(d) Pre-Hearing Matters-At the close of discovery, the parties should meet with the mini-trial judge for a pre-hearing conference. The parties normally should provide for exchange of brief written submittals summarizing the parties' positions and narrowing the issues in advance of the hearing. The submittal should include a discussion of both entitlement and damages. Contemporaneously with the exchange of the written submittals, the parties should finalize any stipulations needed for the hearing and, where applicable, exchange witness lists and exhibits. The parties also should establish final procedures for the hearing.
(e) Hearing-The hearing itself is informal and should generally not exceed one day. The parties may structure their case to include examination of witnesses, the use of demonstrative evidence, and oral argument by counsel. Because the rules of evidence and procedure will not apply, witnesses will be permitted to relate their testimony in the narrative, objections will not be permitted, and a transcript of the hearing will not be made. The role of the mini-trial judge similarly is flexible and may provide for active questioning of witnesses. Each party should present a closing statement to facilitate the post-hearing settlement discussions.
(f) Post-Hearing Settlement Discussions-At the conclusion of the informal hearing, the principals and/or counsel meet to discuss resolution of the dispute. The mini-trial judge may play an active role in the discussions, or be available to render an advisory opinion concerning the merits of the claim.
IV. Third-party Neutrals (eighteen-month pilot program)
After entry of an order referring a case to ADR, the parties may request the ADR Administrator to appoint a third-party neutral from a limited panel of experienced attorneys trained to handle ADR. The third-party neutral shall have no conflict of interest and shall either have experience in alternative dispute resolution or shall have expertise in the subject matter of the lawsuit. The third-party neutral will meet with the parties and attempt to resolve the dispute.
At the conclusion of an eighteen-month trial period, this program will be reviewed and modified accordingly.
V. Comment
The court welcomes further input from the bar and general public on this Notice to Counsel and Amended General Order No. 13. This input will be considered, along with the initial practical experience under the Order in a continuing effort to further the effective administration of justice.