Key Points

• The District of New Jersey adopted a uniform Final Pretrial Order (FPTO), standardizing trial-preparation requirements across Newark, Trenton, and Camden.
• The FPTO requires early identification of trial issues, witnesses, exhibits, objections, and evidentiary support—often in hundreds of pages.
• The FPTO can be amended only to prevent “manifest injustice,” necessitating early and comprehensive pretrial preparation and development of trial strategy.

A Plan for Trial

In a Notice to the Bar, the Court said the new uniform FPTO is intended to “alleviate existing burdens on attorneys, litigants, and the Court that often arise from relying on variable forms throughout the vicinages.”

The FPTO governs a Court’s (and the parties’) plan for trial. Once entered, the FPTO controls the trial plan and can be amended only to prevent “manifest injustice.” Litigants who wait too long to prepare may find key issues, proofs, and objections locked out before trial begins. In the DNJ, a proposed FPTO is jointly submitted by the parties, which the Magistrate Judge (and District Judge) review closely before the Magistrate Judge enters the order.

Although both the Federal Rules of Civil Procedure and Local Rules refer to FPTOs, neither provides detailed guidance fundamental to preparation of this document which ultimately controls what is the climax of litigation: trial.

FRCP 16(e) provides “The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence … The court may modify the order issued after a final pretrial conference only to prevent manifest injustice.” FRCP 16(d) provides “After any conference under this rule, the court should issue an order reciting the action taken. This order controls the course of the action unless the court modifies it.”

While FRCP 16 provides that an order “reciting the action taken” at the final pretrial conference must issue, the specific format of the FPTO is not specified. The Local Rules provide a few passing references to final pretrial orders but similarly do not provide detailed guidance and largely leave the details of FPTOs to the individual judge’s discretion.

One District, Three Vicinages

The DNJ is one district with three vicinages, organized based on geography: Newark, Trenton and Camden. Although the DNJ’s local rules apply equally across all three vicinages, there is some variability in the specific procedures for implementing the Federal Rules of Civil Procedure and DNJ’s Local Rules.

The Final Pretrial Order was previously a prime example of this variation. Prior to the creation of the uniform FPTO, the three New Jersey vicinages varied in their implementation of the FPTO. For example, judges in Camden previously tended to utilize a single model pretrial order template. Judges in Trenton tended to use one model FPTO, but that general template was not uniform among the judges. In Newark, the FPTO typically depended on the individual preferences of the assigned judge.

This could be particularly challenging in the context of patent litigation, where FPTOs in the DNJ routinely run into the hundreds (and even thousands of pages) due to the inclusion of all potential exhibits, deposition transcripts, and other required statements.

The newly created uniform FPTO addresses the prior variation among model FPTOs, unifying the three vicinages in their general approach to this critical aspect of federal litigation.

The new FPTO includes 16 sections:

1. Summary of the Case, including jurisdiction and nature of the action, claims and counterclaims;
2. Summary of Legal Issues, including all issues for trial (whether agreed to by the parties or not);
3. Miscellaneous, including stipulations for trial procedures, requests for judicial notice, prior judicial decisions that impact trial (e.g., summary judgment), choice of law issues, and notices required by law (e.g., FRE 807);
4. Pending/Contemplated Motions, whether dispositive, in limine, or otherwise);
5. Stipulation of Facts;
6. Contested Facts;
7. Witnesses;
8. Expert and Specialized Lay Opinion Witnesses;
9. Depositions;
10. Exhibits and Objections;
11. Non-Jury Trials, including directions for trial briefing;
12. Jury Trials, including trial briefing, voir dire questions, jury instructions, verdict sheet, and neutral statement of the case, and requests for charges to the jury;
13. Bifurcation;
14. Estimated Length of Trial;
15. Trial Date; and
16. Trial Counsel.

Practitioners should not be fooled by the length of this form and assume that it can be hastily assembled on the eve of the deadline. As noted above, it can run hundreds or thousands of pages once completed and requires coordination with opposing counsel to efficiently exchange sections and streamline issues before the document will be ready to submit to the magistrate.

In addition, as cautioned by the newly adopted form FPTO (and as stated in FRCP 16(e)), once the FPTO is entered by the Magistrate Judge, amendments are not permitted unless the court determines that “manifest injustice would result if the amendment is disallowed.”

Thus, following the uniform FPTO and ensuring parties have comprehensively included their evidence and proofs remains critical.

Paul W. Kalish and Jonathan J. Madara are members of the IP Litigation team in Fox Rothschild’s Princeton, NJ office and write about patent litigation decisions in the District of New Jersey. Contact Paul at pkalish@foxrothschild.com or 609.895.6751 and Jonathan at jmadara@foxrothschild.com or 609.844.7428.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the authors and not necessarily this law firm or its clients.