10.3 Pre-Trial and Trial Practice

Discovery built the record. Trial practice is how that record is shaped, admitted, and argued. The PCCE wants the Rule 16 order, the difference between a jury and a bench trial, the two kinds of jury challenges, and a clean line between what the attorney says in court and what the paralegal prepares and tracks.

Rule 16 conferences, the pretrial order, and motions in limine

FRCP 16 authorizes the court to order attorneys and unrepresented parties to appear for one or more pretrial conferences. The court must issue a scheduling order as soon as practicable, and ordinarily within the earlier of 90 days after any defendant has been served or 60 days after any defendant has appeared, unless the judge finds good cause for delay (Rule 16(b)(2)). That order limits the time to join parties, amend pleadings, complete discovery, and file motions, and it may modify the timing of disclosures, set ESI protocols, and adopt agreements under FRE 502. A schedule may be modified only for good cause and with the judge’s consent (Rule 16(b)(4)). The later final pretrial conference produces a pretrial order that controls the course of the action unless the court modifies it to prevent manifest injustice (Rule 16(d)–(e)). Witnesses and exhibits omitted from that order are often out.

A motion in limine is a pretrial request for an evidentiary ruling — typically to exclude (or sometimes to admit) identified evidence before the jury hears it. It is a motion, not a pleading (Chapter 9). Typical topics: a 404(b) other-act, a 403 photo, an unpleaded expert theory, a late-disclosed witness, or a settlement communication. Winning in limine is how you keep a Rule 403 problem from being “un-rung” in opening. Losing, or getting a deferred ruling, is how you write a pocket brief and a sidebar card into the trial notebook.

Rule 26(a)(3) pretrial disclosures — the witnesses a party expects to present and those it may call if the need arises, plus exhibit lists — are ordinarily due at least 30 days before trial, unless the court orders otherwise. Objections to the opposing list are due within 14 days. Those disclosures feed the Rule 16(e) order. Do not treat them as optional extras the partner will “handle later.”

Trial notebooks, checklists, and the forum choice

A trial notebook (digital or paper) is the paralegal’s operating system:

• pleadings, the live pretrial order, and the motions in limine with the court’s rulings
• witness list with contact information, sequestration status, and expected order
• exhibit list with numbers, sponsoring witnesses, and admission status
• deposition designations and counter-designations
• jury instructions and verdict-form drafts
• outlines for opening, each direct and cross, and closing
• a checklist for each day: who is on deck, which exhibits move, which outstanding rulings remain

Jury trial versus bench trial is not a vibe. Rule 38 preserves the Seventh Amendment right to a jury on claims that carry it, but the right is waived unless a party demands it as the rule requires (timely writing, served and filed). Rule 39 then sets the case for jury trial on the demanded issues unless the parties stipulate to a bench trial or the court finds no federal right to a jury. In a jury trial the jury finds facts and applies the court’s instructions. In a bench trial the judge finds facts (often with Rule 52 written findings) and reaches conclusions of law. Demonstratives, 403 fights, and the length of openings all change with that audience. Do not assume every federal civil case is tried to a jury.

Jury selection — voir dire, cause, and peremptories

Voir dire is the questioning of prospective jurors. Rule 47 lets the court examine the jurors or permit the parties to do so, and the court may consider using a jury questionnaire. The point is to uncover bias, relationships, and inability to serve.

Two challenge tools:

Batson v. Kentucky and later cases forbid using peremptories to exclude jurors because of race (and J.E.B. v. Alabama extends the equal-protection bar to gender). A Batson objection shifts the striking party to a neutral explanation; the court then decides whether the strike was discriminatory. Exam trap: Batson is not a substitute for a cause challenge, and a cause challenge is not a peremptory.

Openings, closings, direct, and cross

The attorney delivers the opening statement and the closing argument. The paralegal does not. Opening is a roadmap of the evidence the jury will hear — not a time to argue inferences or to vouch. Closing is when the attorney argues what the admitted evidence means and how the instructions apply. A paralegal who stands up to open, close, or examine a witness is engaged in the unauthorized practice of law.

What the paralegal does prepare:

• a timed opening outline tied to the first-day exhibits and a demonstrative timeline or liability graphic the court has approved or the parties have agreed
• a closing notebook with admitted-exhibit call-outs, deposition quotes the court has allowed, and the verdict-form questions
• direct-examination outlines that use non-leading questions on disputed facts (who, what, where, when, how, describe) and that walk the sponsoring witness through each exhibit’s foundation
• cross-examination outlines that use leading questions, prior inconsistent statements, 608/609 material, and the exhibit the witness cannot escape

Direct examination is the questioning of a witness the party called. Cross-examination is the adverse questioning that follows, generally limited to the subject matter of the direct and matters affecting credibility, though the court may allow inquiry into additional matters as if on direct (FRE 611(b)). Redirect and recross stay inside the scope the court allows. Leading questions are ordinarily allowed on cross and when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party (FRE 611(c)).

Exhibits, demonstratives, and witnesses

An exhibit becomes evidence only after it is marked, authenticated, offered, and admitted (or rejected). The paralegal’s job is the tracking grid: number, description, offered by, objection, ruling, and which witness had it. Demonstratives (timelines, animations, blow-ups) may be used as pedagogical devices even when they are not themselves admitted, if the court allows them; do not confuse a demonstrative with a substantive exhibit that goes to the jury room.

Fact witnesses testify from personal knowledge (FRE 602). Expert witnesses testify under 702 and must have been disclosed under Rule 26(a)(2). A hybrid treating physician may be both. Sequestration (FRE 615) lets a party request — and requires the court, on request or on its own, to order — that witnesses be excluded so they cannot hear other witnesses’ testimony. The rule does not authorize excluding a party who is a natural person, a designated officer or employee of a party that is not a natural person, a person whose presence a party shows to be essential, or a person authorized by statute to be present. The paralegal enforces the order in the hallway: the next witness does not sit in the gallery “just to see how it is going.”

Rule 45 trial subpoenas bring nonparty witnesses and documents to court. Rule 43 generally requires testimony in open court, with remote testimony allowed in appropriate circumstances for good cause in compelling circumstances and with appropriate safeguards.

The paralegal in the courtroom

The in-court role is logistics, tracking, and notes — not advocacy:

1. Exhibit tracking — mark, offer, ruling, published to the jury, withdrawn.
2. Witness logistics — arrival, sequestration, order, interpreters, and the next-day call.
3. Notebooks — hand the attorney the right outline, the right impeachment transcript page, and the court’s in-limine ruling.
4. Notes — a usable record of testimony, sidebar rulings, and homework for the evening war-room.
5. Technology — the presentation system, the published exhibit, and the backup paper copy when the screen fails.

Worked path. Thirty days before trial the pretrial order lists eight fact witnesses, one retained expert, and 62 exhibits. A partner says: “You open on the timeline, I’ll take the expert, and strike that nurse on the panel — she works for the defendant hospital.” Translate. You do not open. You finish the timeline demonstrative, confirm the expert’s 702 file and 26(a)(2) report are in the notebook, and tell the attorney the nurse is a for-cause problem (employment by a party) before anyone spends a peremptory. Calendar FRE 615 so the expert and the fact witnesses are not sitting together in the gallery, and build the exhibit grid so that when the judge says “received,” you can find that number in two seconds.