The typical pre-trial conference is a conference attended by counsel and a judge or other judicial officer a few weeks before the trial date. I propose to deal briefly with the United States experience before turning to the English and Canadian situation generally, and then to refer in detail to the position in the Province of Nova Scotia.
In the United States the pre-trial conference became prevalent with its introduction into the Federal Rules of Civil Procedure in 1938.10 It has since been adopted in one form or another in most State jurisdictions as well as in the federal district courts.11
As enumerated in Rule 16 of the Federal Rules the principal functions of a pre-trial conference are to consider: (1) the simplification of the issues; (2) the necessity or desirability of amendments to the pleadings; (3) the possibility of obtaining admissions of fact and of documents, so avoiding unnecessary proof, (4) the limitation of the number of expert witnesses; (5) the advisability of a preliminary reference of issues to a Master for findings to be used as evidence when the trial is to be by jury; and (6) such other matters as may aid in the disposition of the action. In some jurisdictions the pre-trial conference has been devised primarily to promote settlement, but the more common view is that a pre-trial conference is not properly a device for that purpose, although settlement may in some instances be a by-product of pre-trial.12
It is difficult to make statements of general application about the use of pre-trial conferences in the United States. In most State jurisdictions the device has application State-wide although in some States it has effect only in metropolitan areas. In some jurisdictions pre-trial conferences are mandatory but, in many, the use of pre-trial is within the discretion of the trial judge. Also, the nature of the pre-trial conference varies widely from jurisdiction to jurisdiction. In some courts it is used regularly but in a perfunctory way whereas, in others, it is employed intensively. The conference may be conducted either formally or informally by the judge in open court or it may be held in chambers. Usually it is a conference with only the judge and counsel in attendance although in some conferences the parties may also be present. Generally a formal pre-trial order, embodying the agreements and stipulations of counsel, is prepared by the judge, either as his own summary or as a result of proposals by counsel for the respective parties. At the trial, the order of the judge at the pre-trial conference normally constitutes part of the official file or record of the case and, in most jurisdictions, that order is binding on the trial judge unless he permits amendment. There may also be varying .Policies concerning the time at which a pre-trial conference is held, but the trend is to hold the conference when the case is nearing trial.
The usefulness of pre-trial conferences is a matter on which there is little agreement. The view that trials are shortened and settlement rates increased has been expressed by many judges in the United States based upon personal observations of the operation of pre-trial. Maurice Rosenberg’s study of pre-trial conferences in New Jersey, the only major scientific study so far, does not support these claims.13 Professor Rosenberg selected 1500 personal injury cases to be tried by jury as a control group and 1500 such cases at random as an experimental group. The rule, making pre-trial mandatory, was suspended for the experimental group, and pre-trial was not held in cases in that group unless requested. Pre-trial conferences, as usual, were held in all cases in the control group.
The Rosenberg study found that pre-trial conferences did not shorten trial time and did consume substantial amounts of judicial time. Further, the study showed that there was no increase in the number of cases settled before trial, although it must be recognized that the major goal of the pre-trial conference in that State was not the promotion of settlements but the clarification of issues. The study revealed, however, an improvement in the quality of trials following pre-trial - the lawyers were better prepared, a clear presentation of the opposed viewpoints was more common, gaps and repetition in the evidence were reduced, and tactical surprise was curbed.
The pre-trial conference has generally not taken root in Common Law countries outside the United States. The procedure followed in England is known as the “summons for directions”. The major purpose of this proceeding is to consolidate in one hearing various interlocutory applications. A secondary objective is to obtain admissions and stipulations and generally prepare the case for trial.
In Canada, the Provinces of British Columbia, Alberta and Nova Scotia have rules of general application authorizing the holding of pre-trial conferences. In British Columbia the procedure was, at its inception in 1961, to be used at the option of counsel and was rarely invoked. More recently, in Vancouver, it has been decided that every case which is estimated to take two days or more must be submitted to a pre-trial conference. The judge assigned to the case does not preside at the trial conference. It seems that the savings in time have been considerable. In Alberta, pre-trial was introduced in 1969. Being invoked only at the instance of counsel, it is rarely used, but has been effective in a number of complex cases. The rule authorizing the use of pre-trial conferences in Nova Scotia was, adopted in 1968 and provides for a pre-trial conference at the request of either party or at the direction of the court. At the end of 1975 pre-trial conferences were being conducted in 75 per cent of all cases in the Supreme Court of Nova Scotia.14
The pre-trial conference in Nova Scotia is probably the most successful pre-trial conference in the Common Law countries, outside the United States. I have, therefore, chosen this conference for detailed examination. The information below is drawn from personal discussions with Chief Justice Gordon Cowan of the Trial Division, Supreme Court of Nova Scotia, and from material he provided for me.
The procedure in Nova Scotia is governed by Rule 26 of the Nova Scotia Civil Procedure Rules. This rule, which is based on Rule 16 in the Federal Rules of Civil Procedure, is applicable in all cases, whether jury or nonjury, and regardless of the expected length of the trial. If it appears that a case is likely to be long the judge will, in the absence of an application by counsel, suggest that a pre-trial conference take place. The conference generally takes place two weeks before the trial. It is felt that, if held earlier, counsel are not prepared but, if held close to the trial, the positions of the parties have tended to harden, witnesses have been subpoenaed and there may be a feeling that matters ought to be thrashed out in court rather than at the pre-trial conference.
In Nova Scotia the judge assigned to the case normally conducts the pre-trial conference. The advantage of having the same judge preside at the pre-trial conference and at the trial is obviously that he is well acquainted with the case and is better able to deal with questions arising during the course of the trial. The objection is that, if there has been some discussion of settlement in which the judge has been involved, it would be difficult for him to be impartial and uncommitted during the trial. The general feeling is that, if the judge does take an active part in promoting discussion of settlement, it is desirable that a different judge preside at the trial when no settlement is reached. The Chief Justice leaves the decision with counsel. In any case, whether settlement is discussed or not, a request that another judge hear the case is automatically granted. It is of interest that over the seven years of the experiment no request has been made.15
The court does not regard the obtaining of settlements as the main purpose of the pre-trial conference. It is stressed that the main purposes are the definition and simplification of the issues, obtaining admissions of facts and documents, and exploring other matters which may avoid unnecessary proof and wastage of time. It is not uncommon for the subject of settlement to be raised at the conference. If the subject is raised, the presiding judge will usually suggest that the parties may wish him to leave in order that they may have a free discussion in his absence. In rare cases disclosure will be made to the judge concerning the negotiations for settlement by the parties and even as to the differences in money terms. In certain cases the parties may ask the judge to indicate generally the way in which he would decide, assuming certain facts are established. The judge leaves it to the parties to raise the question of settlement and only if the parties ask the judge to remain and listen to the discussion will he do so.
A pre-trial conference is held in an informal way in a judge’s conference room. The judge and counsel are present.
It is usual to start with the statement of claim and to ascertain what matters are agreed and what contested. It often appears that the defendant will not admit an allegation in the statement of claim in the form in which it is stated but is prepared to admit it subject to certain qualifications and reservations. Sometimes he is prepared to admit it provided that the plaintiff agrees to call certain witnesses or company officers and make them available for cross examination. A similar procedure applies to a consideration of the statement of defence.
The second matter for consideration is the listing of documents, the admission of copies or originals and the making of admissions as to the sending and receipt of such documents. Although the Nova Scotia Rules provide for full disclosure of documents prior to trial it is found in many cases at pre-trial conferences that important documents have not been disclosed.
The third matter for discussion is whether there is a preliminary question of law which can be submitted and decided in advance of the trial. Whilst a question of law can be submitted by consent without a rule providing for pre-trial conferences, it has been found that the existence of the rule tends to make it easier to have these questions raised and submitted in advance.
The fourth question which arises at times is whether, in cases where there are questions both of liability and damages, the trial can be split. It may be possible to have liability determined in the first instance, deferring the hearing as to damages until after the question of liability is decided. In many cases, once the question of liability is resolved, the question of damages can be settled.
After discussion has taken place concerning the various matters raised, a memorandum is dictated by the judge. Some judges use their secretaries or a court reporter and dictate a memorandum in the presence of counsel. In some cases a memorandum is dictated following the conference. When the memorandum is typed, the judge signs sufficient copies to provide one for the court file, one for each of the parties and one for himself.
The Chief Justice is convinced of the value of the pre-trial conference. His impression is that the Bar generally and judges of the County Court and of the Trial Division of the Supreme Court using the procedure regard the pre-trial conference as worthwhile. It is felt that, as counsel are compelled by this procedure to narrow and define the issues preparatory to trial, the procedure shortens the trial and facilitates settlements. In addition, it has been found that the conference at times identifies a case which is not ready for trial; hence, in advance of the trial date, the case may be postponed for a week or two or even longer, but always to a definite date. It is an incidental advantage that the pre-trial conference may be held informally, as the realization that it can be ordered stimulates opposing counsel to hold early, and often fruitful, discussions.
It is surely significant that, although the procedure did not commence until 1968, it was invoked in 20 per cent of all cases in 1971 and, by late 1975, in 75 per cent of all cases. The interests of counsel and judges is readily demonstrable: two-thirds of the conferences are requested by counsel, and one-third by the judge assigned to hear the case.16
In New South Wales there is no provision in the Supreme Court Rules for the holding of a pre-trial conference in the Common Law Division. The major step in pre-trial procedure is known as the “directions hearing” which is provided for in Part 26 of the Rules. That procedure commenced on 3 March, 1975. Common law actions were initially listed for directions before a judge; but, more recently, they have been listed before a Master of the Common Law Division. Since early in 1976 the legal representatives of the parties have been required to appear before a Deputy Prothonotary in the first instance. If there is no preliminary issue in dispute the Deputy Prothonotary lists the matter for hearing. He has no power to make orders and, if any preliminary matter is contested, the case must be referred to a Master for directions. Once the Master has resolved all preliminary issues, the case is returned to the Deputy Prothonotary who lists the matter for hearing.
The hearing for directions is set in train by the Prothonotary who, about eight weeks beforehand, notifies all parties in writing of the date fixed for the directions hearing. In respect of claims for damages for personal injuries it is required that the plaintiff serve on the defendant’s solicitor a schedule, in triplicate, not less than six weeks before the date fixed for the directions hearing. The schedule indicates briefly the essential allegations proposed to be made at the final hearing of the proceedings. Medical reports, accounts, receipts and other documents must be annexed to the schedule.
The contents of the schedule vary from case to case but, basically, the schedule presents the substance of all claims to be made: for example (1) particulars of the negligence or other cause of action; (2) particulars of injuries sustained; (3) particulars of all continuing disabilities; (4) details of all out-of-pocket expenses and, if those expenses are continuing, a statement to that effect; (5) details of loss of income and, if applicable, the name and address of each and every employer during the 12 months preceding the accident with details of net earnings during that period of employment; (6) the identity of each and every employer since the accident, if applicable, with details of periods of employment, capacity in which employed and net earnings; and (7) particulars of alleged loss of earning capacity and future economic loss including, where appropriate, the names and identity of comparable earners relied upon by the plaintiff and the rates of pay claimed to be applicable to those earners.
A statement is entered by the defendant’s solicitor in the space provided in the schedule against each allegation that the particular allegation is “admitted”, “denied” or “not admitted”. If any allegation of contributory negligence is made by the defendant, particulars of the contributory negligence are specified in the space provided in the schedule. Not less than three days before the day fixed for the directions hearing, the original of the completed schedule is required to be filed by the defendant’s solicitor and a copy served on the plaintiffs solicitor.
If, in a claim for damages for personal injury the schedule has not been duly completed or if, at a directions hearing in any common law claim the legal representatives are not fully instructed on all relevant matters, or if the Master is for any reason not satisfied with the progress made at the directions hearing, then a date for hearing may not be fixed and the Master may make whatever orders regarding costs or otherwise he considers justified. Upon the satisfactory conclusion of the directions hearing a date for final hearing, approximately eight weeks ahead, is fixed.
Scale costs on a party and party basis, in respect of the appearance at the directions hearing, including costs reflecting the work involved in preparing the schedule in accident cases, are allowed on taxation. Where counsel attends at the directions hearing a special conference fee of $30.00 is allowed on taxation. In the event of settlement of an action at or after the directions hearing this special conference fee is allowed to counsel in addition to the full brief-on-hearing fee (assuming a brief-on-hearing has been delivered), plus any other properly incurred fees.
The general purpose of the directions hearing in New South Wales, and of the pre-trial conference in Nova Scotia, is to prepare the case for trial. Pre-trial in both cases is designed to strip the case of all confusing and extraneous issues and to get to the heart of the matter so that it may be properly and efficiently determined. There the similarity ends. It is true that the directions hearing ensures that the pleadings are in order, that discovery has taken place and that the parties are ready for trial; in short, it provides the occasion for stock-taking. However, the directions hearing is a weak and incomplete substitute for the pre-trial conference. The hearing for directions is standardized and perfunctory, consuming only a few minutes in most cases. In practice the hearings are attended by solicitors who have generally not briefed counsel and who are therefore rarely in a position to discuss the issues or to negotiate a settlement.
On the other hand, pre-trial conferences in Nova Scotia may last an hour or more where the case discussed is long and complex. It takes time for the judge and counsel to probe the case in depth and-to narrow the issues for trial. It is not surprising that the New South Wales hearing for directions contributes little, either to the preparation of a case for trial, or to the production of a settlement. On the other hand, an effective pre-trial conference in Nova Scotia may not only shorten the hearing, in some cases substantially, but may also lead directly or indirectly to a settlement of the dispute.
I recommend the introduction of a new rule to the effect that, in any proceedings in the Common Law Division, the court may itself, or on application of any party, direct the parties to appear before it for a conference. At that conference the matters to be considered would include - the simplification of the issues; the necessity or desirability of an amendment to any pleading, affidavit or notice; the possibility of obtaining admissions of facts and of documents that will avoid unnecessary proof; the limitation of the number of expert witnesses; and any other matter that may aid in the disposal of the proceedings. The proposed rule might also provide that, following the conference, the court may make an order reciting the results of the conference and giving such directions as the court deems advisable. A further feature of the proposed rule would be that the order, when entered, should control the subsequent course of the proceedings, unless modified at the trial or hearing to prevent injustice. The conference should be held two weeks before the trial. In general, its procedural aspects might follow those used in Nova Scotia, at least in the early stages of the experiment.
In my view, the conference should be conducted by a Master of the Common Law Division, not a judge - notwithstanding that the judge might be different from the one presiding at the trial. Some believe that, wherever possible, the pre-trial conference ought to be conducted by the same judge who is to hear the case. One argument in support of this view is that, for reasons of economy, the judge who masters the essentials of the case at pre-trial is best equipped to preside at the trial. A further argument is that settlement negotiations are a natural by-product of the pre-trial conference where the status of the judge provides the “clout” that is so effective in encouraging settlements.
The latter contention points up the problem of appointing a judge to conduct pre-trial conferences. The primary aim of the pre-trial conference is to narrow and define the issues for trial. But the conference also is an ideal forum for the discussion of settlement. The atmosphere for settlement is probably never better than at pre-trial.17 Indeed, I believe that the. presiding officer has a responsibility before, during and after a pre-trial conference to encourage the parties to effect a settlement. However, active participation by a judge in settlement negotiations would be a departure from his ordinary judicial function. A judge is not a conciliator; he ought not to be put in the position of usurping the proper function of counsel, whose duty it is to advise his client as to the most appropriate disposition of his case. For this reason it seems to me to be essential that a Master, not a judge, should preside at the pre-trial conference and over any settlement negotiations which may ensue.
A substantial number of the cases brought in the Common Law Division are running-down cases in which the Government Insurance Office is the real defendant. Almost all of the remainder are personal injury cases arising out of factory or building accidents, accidents on public transport, or accidents on premises where the plaintiff was not an employee of the defendant. Apart from these cases there are defamation cases, building cases, other contract cases, professional negligence cases, assault cases and others. Mr. Kevin Quinn, Deputy Prothonotary of the Supreme Court of New South Wales, informs me that approximately 60 per cent of all cases are set down to last one day or less. Most of these cases are running down cases. Of the remainder approximately 20 per cent are set down to last two days or less, while those cases expected to last three days or more constitute no more than 20 per cent of all cases. In my view it is not enough to wait for counsel to request pre-trial. Experience suggests that this will not happen very often, although the Nova Scotian experience showed that, once pre-trial was made mandatory in certain cases, counsel requested it in a substantial number of other cases (two-thirds of all cases where a pre-trial conference was conducted). The problem is, therefore, to determine which cases should be selected for pre-trial.
I do not envisage that, in New South Wales, a pre-trial conference would be held in 75 per cent of cases, as in Nova Scotia. Indeed, the cases selected for a pre-trial conference should be limited in number, particularly at the inception of the scheme. The case would have to be sufficiently prepared for a full assessment of liability and quantum to be made; counsel would therefore have to be fully briefed, and an appropriate scale fee would be payable to solicitors and counsel. The Evershed18 and Winn Committees commented adversely upon the expense of using counsel in pre-trial conferences. The Winn Committee concluded that the adoption of the pre-trial conference would so complicate, delay and increase the cost of litigation that it should be rejected.19 But the Committee did examine the suggestion that a pre-trial conference should “always or usually” be held.20
My investigations overseas do not support such a wide use of the pre-trial conference. Whilst, in the United States, the pre-trial conference is frequently employed there is a trend away from making it mandatory. The pre-trial conference in the United States generally figures prominently in the conduct of complex cases, and it is with this type of case that the greatest benefits have been discernible. In my view, therefore, pre-trial conferences should at first be scheduled for those cases expected to occupy three days or more. Depending on the results of that experiment, some consideration should be given to scheduling a pre-trial conference for those cases expected to occupy two days. However, scheduling pre-trial conferences for cases occupying one day or less would be simply a waste of time and money.
The choice of a Master who has a sympathy for, and interest in, pre-trial and settlement conferences is absolutely essential to the success of the experiment. Pre-trial would require hard work on the part of the Master and of counsel because it involves “digging” into the case so as to uncover its essentials. The pre-trial conference is useless if the parties merely go through the formalities. Chief Justice Gordon Cowan recognizes that a good deal of the success of the practice depends upon the individual judge. This view is shared by others in the United States to whom I spoke on the subject of pre-trial. A judge who understands the system and who wants to make it work is able to narrow and define the issues. He can then allow the parties to agree, with or without reservations, to most of the relevant facts, leaving other facts in issue. The system works only as effectively as the one who works the system.
Footnotes
10. Karlen, Procedure Before Trial in a Nutshell, (1972) pp. 217-218.
11. The Improvement of the Administration of Justice, American Bar Association, (1971) p, 78.
12. Ibid.
13. Rosenberg The Pre-trial Conference and Effective Justice (1964).
14. Cowan Pre-trial Procedure in the Province of Nova Scotia, (20 October, 1975) p. 2.
15. Id. pp. 3-4.
16. Id. p. 2.
17. The State Trial Judge’s Book, National Conference of State Trial Judges, (1969) pp. 87-89.
18. Final Report of the Committee on Supreme Court Practice and Procedure (Cmnd. 8878)
(1953) para. 217.
19. Report of the Committee on Personal Injuries Litigation (Cmnd. 3691) (1968), paras 353-355.
20. Id. para. 353.
