Rule 703.Final Pretrial Procedure; Formulating Issues

Rule 703 is the last conference before trial.

Getting one

The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. And it must be held if requested by any party in writing at least 21 days before trial, or if the court orders one at any time.

That is a right, not a request. One party's timely letter obliges the conference.

Who attends, with what authority

Parties and, if represented, their attorneys must attend unless excused. And at least one attorney for each party must have authority to enter into stipulations and make admissions regarding all matters the participants may reasonably anticipate discussing. Sending someone who has to telephone for instructions does not satisfy the rule.

The memorandum

The court may direct the attorneys, or any self-represented party, to submit a pretrial memorandum containing substantially the information in Rule 704. All parties will file one no later than 3 days before the conference or as directed.

Exhibits and witnesses

The court may order the parties to file a list of potential trial exhibits and the names and addresses of all witnesses who may testify. Anything discovered after the disclosure date must be supplemented, indicating the date it was discovered — the date makes the lateness auditable. The court may exclude any untimely disclosed witness or exhibit, except for good cause shown and to prevent injustice.

That standard is more forgiving than Rule 401(h)'s flat bar on witnesses not disclosed 42 days before trial, and more forgiving than Rule 417(e)(1)'s "substantially justified or harmless". The looser standard here does not displace either — it governs exclusion of what this conference required.

The order, and objecting to it

After the conference the court may issue an order reciting what was done, the amendments allowed, and the parties' agreements, and limiting the issues for trial to those not resolved by admissions or agreements. That order controls the subsequent course of the action unless modified at the trial to prevent manifest injustice — a deliberately high bar.

Which is why the last provision matters: any party may file written objections within 14 days of service, and those objections must be heard before trial in the same manner as a motion.