Tuesday, July 27, 2010

Trial Management Order (Litigation Checklist)

This trial management order (TMO) checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  This checklist addresses the Colorado-specific Trial Management Order requirements of C.R.C.P. 16, which diverge somewhat from the Federal Rules.
- Responsible attorney must file TMO no later than 30 days before trial.
- Order must be signed by lead attorney for each party and include a place for the court's approval.
- Parties must work to agree on as many elements of the TMO as possible, and should designate elements on which they cannot reach agreement as "disputed."
- The TMO should contain the following sections (See example TMO, below, for sample language):
 -- A "Statement of Claims and Defenses" by each party.
 -- A section setting forth "Stipulated Facts."
 -- A list of any "Pretrial Motions" still pending before the court.
 -- A statement regarding "Trial Briefs," including whether they will be filed and the filing schedule.
 -- An "Itemization of Damages or Other Relief Sought," including a computation of any economic damages, set forth by every claiming party.
 -- "Identification of Witnesses and Exhibits--Juror Notebooks," including:
  --- Witness List: attached to TMO, list as "may call" or "will call," and whether accepting or objecting to experts
  --- Exhibits: attach list, using numbers for plaintiff and letters for defendant, as well as notation if opposing party objects to authenticity, and if the opposing party stipulates to the authenticity.
  --- Juror Notebooks: proposal for items to be included.
  --- Deposition and other preserved testimony: see checklist on designation and objection to preserved testimony.
 -- A section addressing "Trial Efficiencies and Other Matters," which is an opening for general discussions of trial efficiencies, but must include a statement that the parties have considered "ways in which the use of technology can simplify the case and make it more understandable."
Thoughts & Best Practices:
- If there are any disputed sections of the TMO, consider filing a Notice to Set Trial Management Conference at the time of filing the TMO to resolve these issues as far in advance of trial as possible.
- Consider requesting a TMO conference to discuss subtleties and courtroom specific procedure, such as audio/visual set-up and preferences of the judge.
- Where preserved testimony will play a significant role, especially the playback of video depositions, consider highlighting to the judge the importance of rulings on objections to preserved testimony in time to prepare an admissible video clip for trial (and to avoid the challenges of editing/fast-forwarding/muting on the fly to account for rulings on objections while a videotaped deposition is playing).
- Depending on the motions practice to date and the parties intentions regarding filing trial briefs, the statement of claims and defenses in the TMO may be the first or best opportunity to set up your story for the judge.  Accordingly, it should not be merely a dry recitation of claims or defenses.
- Consider reaching an agreement as to sequestration of witnesses in the proposed TMO.  Additionally, where one party has more than one corporate representative, it is worth considering whether more than one representative (and potential witness) will be allowed at counsel table and exempt from sequestration.
Example Forms:
- Click Here for Example Trial Management Order (Locked)
- Click Here for Publicly Editable Trial Management Order (Please feel free to make improvements to this form, and comment below to describe what changes were made)
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
This trial management order checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.

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