RULE 16. SCHEDULING AND PLANNING, PRETRIAL, AND FINAL PRETRIAL CONFERENCES AND ORDERS

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Rule 16.06: Sanctions.

If a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37.02. In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust. [As amended by order filed February 1, 1995, effective July 1, 1995; and by order effective July 1, 1997; and by order entered January 29, 1999, effective July 1, 1999.]

Advisory Commission Comments.

The rule introduces into state practice the familiar pre-trial procedures used in the federal courts. The use of the procedure lies within the discretion of the court.

Advisory Commission Comments [1995].

The revisions here are similar to the 1983 revisions to Fed. R. Civ. P. 16, which were designed to make the rule more effective in encouraging and enabling judges to manage the pretrial stages of litigation. Subsection 16.01 provides for scheduling and planning conference and orders, but unlike the federal rule, the judge's use of these devices is not mandatory. Subsections 16.02 and 16.03 expand the purposes of pretrial conferences beyond the current rule's focus on the trial to include various issues of pretrial practice. The final two sentences of subsection 16.03 clarify the authority of the judge to require the participation of persons having authority to enter into stipulations and, in an appropriate case, authority to settle the dispute. Subsection 16.03 recognizes that it is not always feasible, particularly when a governmental entity is a party, for the court to require the presence of a person with on-the-spot settlement authority, in which case the court may choose to require the participation only of a person who has a major role in recommending settlement. Subsection 16.06 specifies the judge's authority to sanction parties for failure to participate appropriately in pretrial conferences.

Advisory Commission Comments [1997].

The new language allows a party to request a pretrial conference if the trial judge does not otherwise schedule one.

Advisory Commission Comments [2003].

The new language in the next to last sentence of Rule 16.01 is designed to encourage judges to make serious efforts to reduce the time that jurors are required to be at the courthouse when not directly involved in the case. When entering scheduling orders, judges should take this factor into consideration.

The new language in Rule 16.02(6) is designed to encourage judges to make serious efforts to reduce the time that jurors are required to be at the courthouse when not directly involved in the case. Pretrial conferences may greatly facilitate the efficient use of juror time by encouraging the pretrial resolution of evidentiary and other issues and the early preparation of jury instructions and juror notebooks.

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