Pretrial Orders: Preserving Claims and Defenses, Drafting Errors and Pitfalls, Lessons Learned From Case Law

A live 90-minute CLE webinar with interactive Q&A

Tuesday, March 17, 2020

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, February 28, 2020

or call 1-800-926-7926

This CLE webinar will alert trial counsel to the dangers of a poorly prepared pretrial order, including waiver of claims and defenses. This seemingly innocuous document, which can be downloaded from court websites and then be treated as a perfunctory "fill in the blank" excercise, can kill a case if not drafted properly.


Under Fed. R. Civ. P. 16(e), once a court formulates its trial plan and issues an order, "the court may modify the order issued after a final pretrial conference only to prevent manifest injustice." As explained in Rule 16's comments, "Once formulated, pretrial orders should not be changed lightly." The PTO supersedes the pleadings and controls what can and cannot occur during the trial. PTOs vary not only between districts, but between judges within districts, so trial counsel cannot rely solely on a previously used PTO.

In the past few years, U.S. Courts of Appeal upheld trial courts that relied on the content (or lack thereof) of pretrial orders to dismiss claims and defenses active the entire case, permit claims and defenses that were never in writing until the PTO, and eliminate a party's ability to try a case to a jury. These decisions are not outliers; instead, they underline the importance of taking the PTO seriously.

Understanding the PTO process goes beyond being a best practice for trial attorneys. Once counsel is secure in its side of the PTO, it can scour the opposition's PTO for disasterous errors. Yet, courts have "broad discretion" to rule on the "integrity and purpose" of the pretrial order.

Listen as this panel of trial veterans provides guidance not only as to the law governing PTOs, but as to the real-world consequences of poor drafting--which can be used for, or against, the client.



  1. Understanding the pretrial order
    1. Fed.R.Civ.P. 16
    2. Local rules
    3. Judges' practices
  2. Process of drafting
    1. Dealing with seemingly repetitive sections
    2. Preserving error
  3. Consequences
    1. Loss of claim or defense
    2. Gain of claim or defense
  4. Practical pointers


The panel will review these and other essential matters:

  • Varied PTO practice between districts and judges
  • Steps to follow in drafting and completing the PTO
  • The law governing PTOs, and the traps therein


Cohan, Louis
Louis R. Cohan

Cohan Law Group

Mr. Cohan’s experience includes breach of contract, securities litigation, fraud, injunctive relief, punitive...  |  Read More

Michael R. Dunham
Michael R. Dunham

Dunham Legal Group

Mr. Dunham has been a trial lawyer for 15 years. He has extensive trial experience in a wide variety of civil...  |  Read More

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