Pretrial

What happens at this stage

If your case survives summary judgment, you’re going to trial. The pretrial phase is where the court and both parties prepare for it. This phase is mechanical but demanding — miss a deadline or fail to disclose something and it may be excluded at trial.

Pretrial conference (Rule 16)

The court holds a pretrial conference to:

• Narrow the issues for trial
• Discuss settlement (the judge will push hard — trials are expensive for everyone)
• Set deadlines for pretrial submissions
• Address any remaining motions

Some judges hold multiple conferences. Some do it all in one. The pretrial conference often produces a pretrial order — a binding document that controls what happens at trial. Once the pretrial order is entered, it supersedes the pleadings. If a claim, witness, or exhibit isn’t in the pretrial order, it may be excluded.

Motions in limine

“In limine” means “at the threshold.” These are motions filed before trial asking the court to rule on the admissibility of specific evidence. Both sides file them.

Motions you might file

• Exclude prior criminal history — defendants will try to introduce your arrest record to attack your credibility. Move to exclude under FRE 403 (unfair prejudice outweighs probative value) or FRE 404 (character evidence generally inadmissible).
• Exclude “he was drunk” testimony without foundation — if no breathalyzer, no FST, and no medical evidence, opinion testimony about intoxication may lack foundation.
• Admit body camera footage — authenticate it early so there’s no dispute at trial.
• Exclude settlement discussions — FRE 408 prohibits using settlement negotiations as evidence.

Motions defendants will file

• Exclude damages evidence — if you didn’t disclose medical bills or expert reports during discovery
• Exclude witnesses not disclosed — Rule 26(a) and 26(e) require timely disclosure. Undisclosed witnesses get excluded.
• Limit your testimony — defendants may argue you can’t testify about legal conclusions or opinions outside your personal knowledge
• Exclude “prior bad acts” of officers — defendants will fight hard to keep prior complaints and disciplinary records out. You’ll argue they’re relevant to pattern/practice, notice, or motive.

Exhibit and witness lists

The pretrial order requires both sides to submit final lists of:

• Witnesses you intend to call (with a brief description of expected testimony)
• Exhibits you intend to introduce (with a brief description)

If a witness or exhibit isn’t on your list, the court will likely exclude it at trial. No surprises.

Exhibit preparation

Each exhibit must be:

• Authenticated — you must be able to prove it is what you say it is (FRE 901)
• Relevant — it must make a fact more or less probable (FRE 401)
• Not excluded — it must survive hearsay objections, privilege claims, and FRE 403 balancing

Organize your exhibits early. Number them. Create a binder. The judge and jury will refer to them by number.

Jury instructions

Both sides propose instructions the judge will read to the jury before deliberations. These instructions tell the jury what the law is and how to apply it to the facts.

In § 1983 cases, pattern jury instructions exist for most claims:

• Fifth Circuit Pattern Jury Instructions (if you’re in the Fifth Circuit)
• Your circuit’s equivalent pattern instructions
• Specific instructions for qualified immunity, excessive force, false arrest, etc.

You can propose modifications to pattern instructions, but courts generally stick to the patterns. Submit yours early and be prepared to argue for any modifications.

Settlement pressure

This is when settlement pressure reaches its peak. The court wants to clear its docket. The defendants want to avoid a jury verdict. You may want certainty.

What to consider

• Any settlement is voluntary — you don’t have to accept.
• The court can’t force a settlement — but judges can be very persuasive.
• Evaluate your risk — a guaranteed $X is sometimes worth more than a 50% chance of $2X and a 50% chance of $0.
• Don’t settle just because you’re tired — that’s what the delay was designed to achieve.
• Non-monetary terms matter — policy changes, training requirements, admissions. Sometimes these matter more than money.
• Get it in writing — any settlement must be a written agreement. Verbal agreements are unenforceable for most purposes.

What to expect

The pretrial phase typically lasts 1-3 months. It feels like cramming for an exam while also building the exam. You’re preparing witness outlines, organizing exhibits, writing motions in limine, drafting jury instructions, and responding to the defendant’s pretrial motions — all simultaneously.

This is the stage where having an attorney (even limited-scope) makes the biggest difference. If you can hire one for trial prep and trial only, this is where to spend the money.

Timeline

• Pretrial conference: scheduled by court (typically 2-8 weeks before trial)
• Motions in limine: due per pretrial order (typically 2-4 weeks before trial)
• Exhibit/witness lists: due per pretrial order (typically 2-4 weeks before trial)
• Proposed jury instructions: due per pretrial order
• Pretrial order: entered after conference, controls trial