Many litigants, particularly in highly contested divorce or custody modification actions, often insist that their case will never settle, and will ultimately need to proceed to a trial. In fact, only a very small portion of such cases which are filed in the Massachusetts Probate and Family Court proceed to a trial. This is due in part to one of the most important court dates for both lawyers and litigants alike: the pre-trial conference.
Before any case, no matter how contentious, can be assigned a trial date, all parties and counsel must attend a pre-trial conference before the judge assigned to their case. The parties are typically given notice of the date of the pre-trial conference several months in advance, when the court issues a “pre-trial notice and order.” This document is, in fact, an order from the court, and it imposes obligations upon both parties. Most pre-trial orders require the parties to meet in person in advance of the pre-trial conference date to attempt to settle the case, and to submit detailed pre-trial memoranda to the court, but the orders are by no means uniform across the Massachusetts Probate and Family Court. For example, some judges might require that the mandatory settlement meeting occur at least one week before the pre-trial conference, whereas others will allow it to happen at a later date. Pre-trial orders also include a detailed list of all of the topics which must be addressed in the pre-trial memorandum, including the documents which must be attached. Again, the specific requirements can vary greatly from judge to judge, meaning that it’s important for even an experienced attorney to read the pre-trial order carefully to ensure that his or her client’s pre-trial memorandum complies with the judge’s order.
Many litigants who are not represented by attorneys fail to understand the importance of the pre-trial conference and, as a result, do not comply with the requirements of the pre-trial notice and order. This can be a problem because the litigant may not be adequately prepared to make a presentation to the judge on the date of the pre-trial conference. In theory, both sides should be ready to present their case to the judge at that time, including succinctly and clearly informing the judge of all of the remaining contested issues which are preventing settlement, and giving the judge information, both orally and within the body of the pre-trial memorandum, concerning a potential trial on the matter – names of witnesses each party intends to call, exhibits they intend to introduce, and how many days need to be reserved for trial, to provide a few examples. In fact, if a judge concludes on the date of the pre-trial conference that the only witnesses at the trial are the parties, or that an immediate trial is appropriate, he or she may choose to conduct the trial on the spot.
The pre-trial conference can also provide an opportunity for the parties to engage in further in-person settlement discussions, and it is often the best chance for the case to settle before trial. This is because, after reviewing the memorandums and hearing arguments from both sides, judges will often give the parties feedback from the bench concerning some of the contested issues. The judge is not allowed to decide the case based on the limited arguments presented at the pre-trial conference, and he or she cannot represent that his or her opinion at the pre-trial conference will be the same as his or her opinion following a trial. Nonetheless, a judge’s initial impression of the case, or some particular aspect of it, can often push the parties towards settlement. For example, if the major contested issue in the case was an alimony order, and the judge informed the parties at the pre-trial conference that he or she did not find the wife’s arguments concerning her inability to earn income to be credible, that feedback could nudge the wife, however reluctantly, towards revisiting settlement discussions rather than risking her luck at trial.
If the case seems like it can be settled, perhaps because the parties’ positions are not very far apart, some judges will even order the parties to go out in the hallway and talk – i.e. engage in settlement discussions – before returning to the courtroom for a second call. Accordingly, it is beneficial for the parties to be prepared to utilize the pre-trial conference date to enter into an agreement for judgment on their case. Even if a full agreement cannot be reached, the parties can negotiate and file a partial judgment concerning all of the matters they agree on, which will reduce the number of issues to be decided at trial. After returning to the courtroom, if the case still has not settled completely, the judge will typically assign trial dates from the bench, thus concluding the pre-trial conference.
Whether the case ultimately settles, or whether the parties leave the courthouse with trial dates, the pre-trial conference is an unavoidable step in litigation within the Probate and Family Court. Rather than begrudging the need to appear in court and expend legal fees, litigants should view the pre-trial conference as a valuable opportunity to present their side of the case to the judge or, in the alternative, to resolve the case in its entirety.
For more information about pre-trial conferences, or any other aspect of litigating a case in the Massachusetts Probate and Family Court, please contact one of the divorce and family law litigators of Fitch Law Partners, LLP.