Federal Judicial Center

pocket guide series

Third edition
federal judicial center

pocket guide series

The Elements of Case Management

Third Edition

William W Schwarzer

Alan Hirsch

Federal Judicial Center

2017

This Federal Judicial Center publication was undertaken in furtherance of the 

Center’s statutory mission to develop educational materials for the judicial 

branch. While the Center regards the content as responsible and valuable, this 

guide does not reflect policy or recommendations of the Board of the Federal 

Judicial Center.

Dedicated to

Judge William W Schwarzer

1925–2017
first printing
v

Contents

Preface, vii

Introduction, 1

The Rule 16 Conference, 3

Timing and procedural matters, 3

Establishing jurisdiction and identifying pivotal issues, 5

Attorneys’ fees, 6

Setting dates for future proceedings, 7

Settlement, 8

The judge’s role, 8

Discovery, 10

Motions, 12

The Final Pretrial Conference, 13

Defining and narrowing the issues, 13

Previewing the evidence, 13

Considering limits on the length of the trial, 14

Establishing the ground rules for the trial, 14

Considering the use of special procedures, 14

Exploring once more the opportunities for settlement, 15

Trial, 16

Starting the trial, 16

Helping the jury, 17

Instructions, summations, and deliberations, 18

Bench trials, 19

Using the Court’s Resources, 21

Related Readings, 22

vii

Preface

Judge William W Schwarzer, who served as director of the Federal 

Judicial Center from 1990 to 1995, wrote the first edition of this brief 

handbook in 1991 with the assistance of former Center staff member Alan Hirsch. In 2006, my immediate predecessor, Judge Barbara 

Jacobs Rothstein, contributed additional material reflecting the 

growing impact of electronic discovery and other technological innovations on the nature and cost of civil litigation. 

I have undertaken a similar effort in this third edition, primarily 

to emphasize the point—one that animated the 2015 Amendments 

to the Federal Rules of Civil Procedure—that just, speedy, and inexpensive resolution of disputes depends upon engaged and active 

judicial case management. Judge Schwarzer recognized this reality 

many years ago, and his practical advice remains valuable today. For 

that reason and for many others, this third edition appropriately is 

dedicated to his memory.

Jeremy D. Fogel

Director, Federal Judicial Center 

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Introduction

Rule 1 of the Federal Rules of Civil Procedure describes the goal of 

the judicial system: “to secure the just, speedy, and inexpensive determination of every action.” If judges are to achieve this goal despite 

limited judicial resources and the rising cost of litigation, particularly 

discovery, they must manage the litigation process.

Case management means different things to different people, and 

there is no single way to do it. In fact, there are substantial differences 

of opinion about many of the subjects we discuss here. But there is 

general agreement that case management, in essence, involves trial 

judges using the tools at their disposal with fairness and common 

sense (and in a way that fits their personalities and styles) in order to 

achieve the goal described in Rule 1. These tools include the Federal 

Rules of Civil and Criminal Procedure, the Federal Rules of Evidence, 

local rules, some provisions in Title 28, and the inherent authority of 

the court. Although judges operate in an environment largely shaped 

by local practice and custom, innovation and adaptation to circumstances also contribute to effective case management.

Faced with busy dockets, some federal judges say that they simply 

don’t have time to meet with lawyers to discuss case management. In 

fact, however, a relatively modest amount of a judge’s time devoted to 

case management early in a case can save very significant amounts of 

time later on. Saving time also means saving costs, both for the court 

and for the litigants. Judges who think they are too busy to manage 

cases probably are too busy not to. Indeed, the busiest judges with the 

heaviest dockets are often the ones most in need of sound case-management practices. 

This manual briefly describes techniques that judges have found 

effective in managing their cases at various stages of the litigation process. It begins with a discussion of the Rule 16 conference, outlining 

how proper use of this conference enables judges to establish control 

of cases at the outset. It then provides separate discussions of several 

items on the Rule 16 agenda—settlement, discovery, and motions—

that continue to play an important role in case management after 

the conference and are, in any event, important enough to warrant 

discrete consideration. The manual next turns to case management 

during the final pretrial conference, and then the trial itself. Finally, 
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it discusses how judges can make the most effective use of the court’s 

human and material resources. For more detailed analysis of techniques for managing civil litigation and samples of orders and other 

forms some judges and courts have used, refer to the Civil Litigation 

Management Manual, Second Edition (Judicial Conference of the 

United States 2010).

This manual is not intended to suggest that there is one preferred 

approach to case management. Its suggestions are offered as food for 

thought—a foundation for thinking about techniques and methods 

that will best suit the individual judge. Finally, a word of caution: 

local rules and the law of the circuit may affect some of what is said 

here.
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The Rule 16 Conference

A judge’s initial contact with the lawyers normally comes at the Rule 

16 conference, known in some districts as a preliminary pretrial conference, scheduling conference, or status conference. The purpose of 

the conference is to launch the case-management process. The specific rules or practices in each district will influence the precise nature 

and scope of the conference. Regardless of variations, however, the 

culture of each court should further the central principle underlying 

Rule 16: that a judicial officer take charge of the case early on and, 

together with the lawyers, establish a program appropriate for its just, 

speedy, and inexpensive resolution.

In some courts, that judicial officer will be the judge to whom the 

case is assigned. Becoming familiar with the case early helps the judge 

manage it effectively and, if necessary, try it more efficiently. In some 

courts, however, magistrate judges supervise the pretrial process. 

For this to work well, the magistrate judge needs the assigned district judge’s backing. The district judge and magistrate judge should 

reach a general understanding about the management of the case at 

the outset and coordinate periodically. Lawyers should not get the 

impression that appealing the magistrate judge’s case-management 

rulings is likely to be advantageous.

Timing and procedural matters

Rule 16 requires the court to issue a scheduling order within 60 days 

after the appearance of a defendant or within 90 days after the complaint has been served on a defendant. It is advantageous to schedule 

the first conference as early as possible, before the lawyers become 

bogged down in discovery or motions. Though some cases obviously 

require less attention than others, it makes good sense to schedule 

conferences in all cases with potential discovery and motion activity. 

Some types of cases, such as government collection cases or Social 

Security appeals, usually are so routine that no conference is needed.

Rule 16 conferences should not be perfunctory scheduling exercises. Judges who use conferences in that way miss out on its substantial benefits. The conference should be a moment of truth for 

the pleader and an opportunity for thoughtful discussion among the 

parties. The lawyers responsible for the case—not junior associates—
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should be there and should be prepared to explain their claims and 

defenses and to discuss future proceedings.

Although Rule 16(c) provides an agenda for the conference, judges 

may think of additional items appropriate for a particular case. Many 

judges issue a standard status conference order in advance, notifying 

the lawyers of what is expected of them. Many judges ask the lawyers 

to submit a joint case-management statement prior to the conference, 

summarizing the essentials of the case in simple terms, stating their 

position on the various agenda items, and proposing a joint scheduling plan. In addition to laying the groundwork for a complete and 

specific conference agenda, this procedure requires lawyers to prepare 

for the conference, to think about the case, and to reach agreements. 

This kind of analysis often eliminates meritless claims or defenses. A 

judge’s reputation for insisting that lawyers be on top of a case from 

the beginning works wonders in reducing dockets and moving them 

along. Of course, the judge too should be prepared for the conference, 

having read the pertinent pleadings and the lawyers’ statements.

In some cases, it also can be advantageous to have the parties present. This gives them an opportunity to hear opposing counsel and to 

learn firsthand what may be involved in the litigation, including the 

likely cost. Such knowledge can engender a more receptive attitude 

toward settlement. On the other hand, there is a risk that clients’ presence will discourage candor on the part of the attorneys, or that some 

clients will attach too much significance to casual remarks. In some 

cases, it may be advantageous to have the parties available at the courthouse though not necessarily present during all of the conference.

While some judges hold Rule 16 conferences in open court with 

a court reporter present, others hold them in chambers and off the 

record, encouraging greater informality and a more searching and 

productive discussion. 

Some conferences (and even motion hearings) can be conducted 

by telephone, saving time and money. But there is much to be said for 

having the case’s first conference in person, bringing the lawyers and 

the judge face to face. Quite often, lawyers will not have talked to each 

other about the case beforehand. Bringing them together to engage 

with the litigation early on is one of the most useful aspects of case 

management.
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Establishing jurisdiction and identifying pivotal issues

The primary objective of the Rule 16 conference is for the judge and 

the lawyers to discern what the case is really about. Pleadings often do 

more to obscure the real issues than to identify them. Before getting to 

the issues, however, the judge should always explore subject-matter jurisdiction, the absence of which is, of course, a non-waivable defect. It 

sometimes happens that the absence of jurisdiction is not recognized 

until well into a case—occasionally not until the appeal. The pretrial 

conference can prevent proceedings that will later prove fruitless.

Once federal jurisdiction has been established, the most important 

function of the conference is the identification of pivotal issues. This 

process reduces many seemingly complex cases to simple, clearly defined disputes that can be resolved more easily than appeared at first. 

For example, the Rule 16 conference may reveal that the plaintiff’s 

right to recover ultimately turns on whether a legal defense bars the 

claim. Resolving that defense by motion, or perhaps by a separate 

trial, can save time and expense.

Detecting the underlying issues in dispute sometimes requires 

vigorous questioning of the attorneys by the judge to get beyond the 

pleadings. Parties may raise assorted claims or defenses that create 

the impression of a complex lawsuit when, upon probing, it turns 

out that the entire case hinges on a straightforward factual or legal 

question—or no triable issue at all. 

The Rule 16 conference is also a time for the judge to address 

the need for, and possible limitations on, the use of expert testimony 

under Rule 702 of the Federal Rules of Evidence. Under the Supreme 

Court’s decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 

509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 S. Ct. 

137 (1999), the district judge is the gatekeeper who must pass on the 

sufficiency of proffered evidence to meet the test under Rule 702. 

The court should use the conference to explore in depth what issues 

implicate expert evidence, the kinds of evidence likely to be offered, 

and potential areas of controversy. For more on the management of 

expert evidence, see Manual for Complex Litigation, Fourth, ch. 23, 

469–516 (Federal Judicial Center 2004).

An important function of the conference is to disclose just what 

relief the plaintiff seeks—what damages it expects to prove and on 
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The Elements of Case Management, Third Edition

what basis, and what other relief is sought. This helps to define what 

is at stake in the litigation. Undertaking this process at the outset can 

substantially reduce discovery. A commercial dispute, for example, 

may turn on an ordinary business record that has never been shown 

to the opponent. No discovery is needed. The judge can direct that 

the record be made available promptly and that the lawyers report 

back by telephone on a specified date. Similarly, if a defendant pleads 

all of the boilerplate defenses, the plaintiff may be in the position 

of having to conduct costly and unnecessary discovery; by using the 

conference to clarify which issues are genuinely in dispute, the judge 

can prevent such waste.

The Rule 16 conference should also be used to screen out cases or 

claims that lack any factual basis. While notice pleading means that 

parties need not allege all the evidentiary detail, it does not entitle 

them to litigate issues for which they have no evidence. Parties may 

not look wholly to discovery to make a case or defense. There must be 

some showing of a factual basis, or at least a strong likelihood of one, 

as a condition for permitting a party to go forward.

Careful definition of issues early in a case may also disclose issues 

susceptible to resolution by summary or partial summary judgment. 

Discussion can reveal some threshold legal issue that may not have 

appeared clearly to the lawyers or perhaps was swept under the rug by 

one of them. Judges who familiarize themselves with a case can usually determine whether there are disputed evidentiary facts requiring 

trial or whether the issue can be resolved on motion.

The conference not only lays the groundwork for motions but 

also provides an invaluable opportunity to identify and assess the 

proportionality of the discovery needed before motions can be made, 

thereby avoiding premature motions and building the foundation for 

proper ones. The conference can streamline or head off the filing of 

summary judgment motions that involve disputed factual issues and 

would only waste the parties’ money and the court’s time. 

Attorneys’ fees

The Rule 16 conference can also reduce future litigation over attorneys’ fees. After disputes on the merits are resolved, and an award of 

attorneys’ fees is indicated, parties often bitterly dispute the proper 
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amount of such fees. They contest the amount of time that should 

have been or was in fact spent on the case and argue about what is 

a reasonable billing rate. Such disputes can be prevented or at least 

reduced if the judge lays down ground rules and establishes appropriate record-keeping requirements at the beginning of the case.

Setting dates for future proceedings

Rule 16 directs the judge to set dates for completion of discovery, filing motions, joining other parties, and amending the pleadings. The 

judge may also modify the times for disclosure under Rule 26 and 

the extent of discovery, and set dates for a final pretrial conference 

and trial. It is important that these dates be set at the outset of the 

case if feasible. Sometimes not enough is known about a case to set 

meaningful dates, and another conference may be necessary. Some 

judges set firm discovery cutoff and trial dates at the first conference 

and never depart from those dates. Such rigidity can be effective for 

disposing of civil cases rapidly, but it is not always practical for courts 

whose heavy criminal dockets may affect trial dates for civil cases. 

However, most judges agree that a firm trial date is the most effective 

tool in case management. Therefore, every effort should be made to 

keep the scheduled trial date.

Judges should always set a firm date for the next event in the case, 

be it another conference, the filing of a motion, or any date requiring 

action by the lawyers. Every case in a judge’s inventory should have a 

specific date calendared that will bring it to the court’s attention.

Setting a firm schedule at the conference is no substitute for defining and narrowing issues. Focusing lawyers’ attention on the issues 

from the outset avoids unnecessary discovery, promotes early settlement, prevents pointless trials, and, where a trial is needed, furthers 

efficiency and economy. 
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Settlement

The Rule 16 conference also should explore the possibility of settlement, and in most cases it should include a specific discussion of an 

appropriate time for and process of alternative dispute resolution. 

Most cases will eventually settle anyway, but often only after unnecessary cost, delay, and judicial effort. The traditional settlement on the 

courthouse steps, after much discovery and motion activity, not only 

is wasteful but also leaves the parties feeling dissatisfied with their 

experience as litigants. Judges should try to facilitate early settlement 

where practical.

Lawyers are generally not in a good position to evaluate settlement possibilities at the first conference, knowing too little of the 

case. Once the issues have been identified and narrowed, however, 

relatively little discovery may enable them to make a reasonable evaluation. The deposition of the plaintiff and perhaps the defendant or 

a key witness, and the exchange of a few documents, may be all that is 

necessary. This can be readily arranged, and the lawyers can be directed to return at a specified date if they have not settled. Such “phased 

discovery” frequently leads to an early settlement. 

At the outset of a case, lawyers have rarely thought much about 

damages. Judges should focus attention on this subject early because 

it is crucial to a realistic evaluation. Many lawyers give insufficient 

consideration to the economics of their case, plunging into litigation 

without making a cost–benefit calculation. A client may have a meritorious claim, but the time and money necessary to establish it may 

be out of proportion to the potential reward. The Rule 16 conference 

should provide lawyers with a “reality check,” and discussion about 

settlement should focus their attention on what would be an acceptable outcome for the client.

The judge’s role

It is useful for a judge to inquire about settlement whenever meeting 

with the lawyers. Lawyers are often interested in settling (particularly 

in view of the rising cost of litigation), but may consider raising the 

subject an admission of weakness. A judge’s questions offer a graceful 

opening.
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Different judges take different approaches to settlement. Some 

judges become actively involved in settlement negotiations in their 

own cases, thinking that another judge would lack the necessary familiarity. Others choose not to, believing it may compromise them 

if the case goes to trial. This is a legitimate concern, because participation in the negotiations sooner or later may require the judge to 

evaluate and express a view on the strength of a claim or defense. 

Doing so will jeopardize the appearance of impartiality in future 

proceedings, and may cause both the judge and the parties to feel 

uncomfortable. This is less of a problem in a jury trial than in a bench 

trial. Nevertheless, in all cases, unless both parties urge the judge to 

act as settlement judge and waive disqualification, there is much to 

be said for recruiting a colleague on the court—another district judge 

or a magistrate judge—as a settlement judge. Many courts also have 

established alternative dispute resolution (ADR) programs, to which 

cases may be referred.

Of course, settlement is not desirable in every case. The dispute 

may involve a principle of importance to the parties or an issue whose 

resolution on the merits will help guide the conduct of other parties. 

Moreover, a party with a meritless claim should not be assisted in 

extracting a nuisance settlement by threatening protracted and costly 

litigation. Judges who are actively involved in settlement negotiations 

should be sensitive to such considerations and should avoid using 

their position of authority to apply undue pressure on parties to settle. Judges should facilitate, not coerce, settlement.
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Discovery

Discovery, while often a critically important means of getting at the 

truth, also is probably the single greatest source of cost and delay in 

civil litigation. Judges can do much to mitigate this problem. Rule 

26(b) gives judges great power and discretion to control discovery. 

This power can be used to prevent duplication, to require lawyers to 

use the least expensive way to get necessary information, including 

discovery of information stored electronically, and, particularly in 

light of the 2015 amendments to Rule 26(b), to keep discovery costs 

from becoming disproportionate to what is at stake in the lawsuit. 

At the initial conference, the judge should review the lawyers’ 

discovery plans with these considerations in mind and keep the discovery program in line with the objectives of Rule 26(b). Judges generally should not use valuable conference time to develop a detailed 

discovery plan with the lawyers. Instead, the lawyers should be asked 

to propose an agreed-upon plan, which the judge should review with 

care. Although the civil rules limit the number of depositions and interrogatories and the length of depositions, the court may alter those 

limits. The judge should therefore require justification as to the need 

for particular discovery and explore alternatives for getting information less expensively. Abuse of the discovery process is a ground for 

sanctions, but sanctions will rarely be needed when sound case management is applied.

Special care is required to manage expert discovery. The parties 

will usually exchange experts’ reports before their depositions are 

taken—the reports can focus the deposition, and may even obviate 

the need for it. An expert should not be permitted to testify at trial 

unless he or she has been made available for deposition before the 

trial. Therefore, in some cases it makes sense to defer expert discovery 

until other discovery is completed, giving the parties a clearer sense 

of what expert testimony may be needed.

Some district judges assign supervision of discovery matters 

to magistrate judges. Whoever handles discovery disputes should 

have a program for keeping them under control. The most effective 

method may be having the judicial officer available to resolve any 

discovery dispute by telephone. This is particularly effective when a 

dispute develops during the taking of a deposition. Knowing that the 
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The Elements of Case Management, Third Edition

judge is only a phone call away has a wonderful tendency to make 

lawyers more reasonable. It is surprising how quickly disagreements 

are resolved when they must be presented to the judge in a succinct 

statement. Telephone conferences eliminate the opportunity to use 

discovery disputes to obstruct the litigation. Establishing this procedure at the outset of a case greatly reduces the number of discovery 

disputes.

Many districts have local rules that preclude the filing of discovery motions unless the parties certify that they have met and conferred in a good-faith attempt to resolve the dispute. Even without 

such a rule, the judge can require that such a conference take place, 

and such practices are expressly encouraged in the 2015 Committee 

Notes to amended Rule 26(b).
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Motions

Motions play an important role in litigation. They can prevent unnecessary trials or at least narrow issues so as to expedite trials. 

Pointless motions, however, waste time and money; whenever possible, the judge should discourage them. The classic example is the 

Rule 12(b)(6) motion for failure to state a claim. More often than not, 

the asserted defect is readily cured by an amendment. At the Rule 16 

conference, the judge can ask the parties to specify any grounds they 

might have for such a motion and can determine in advance whether 

a defect is curable. Curable defects should generally be brought to 

the opponent’s attention before a motion is filed. Similarly, lawyers 

should be discouraged from filing Rule 11 motions. There is a tendency to misuse this rule, which generally should be directed only at 

abusive conduct.

A hearing is unnecessary if a motion is routine and the outcome 

obvious. If the motion presents a difficult or close issue, the lawyers 

should come to court to answer questions and address the judge’s 

concerns. Local rules or the Rule 16 scheduling order will provide a 

schedule for filing motions and oppositions. The time limits should 

be observed so that the judge has sufficient time to prepare for a hearing, if there is to be one. 

If at all possible, the judge should be prepared to decide the motion from the bench. Most disputes do not become easier to resolve 

once taken back to chambers. In fact, as time passes the matter becomes cold, and the judge will need more time to refresh his or her 

recollection. While the litigants are entitled to the court’s best effort, 

they will generally prefer a prompt decision to a perfect but belated 

one.

Trial courts should write no more than necessary, but often the 

legal issue involved in a summary judgment motion may be of great 

importance to the case before the court and to other cases. In those 

cases a written opinion is necessary. Otherwise, ruling from the bench 

orally after argument will be adequate and expeditious.
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The Final Pretrial Conference

The final pretrial conference can be valuable in two respects. First, it 

is the last good shot at settlement. Second, it is a dress rehearsal for 

the trial. Delay and expense in civil litigation result not only from 

unnecessary trials but also from trials lasting too long and involving 

too many witnesses and exhibits. At the final pretrial conference, the 

judge and the lawyers can ascertain in advance what issues have to be 

tried and what evidence is necessary. This will also help ensure that 

the lawyers are prepared for trial.

Despite its potential, some judges treat the final pretrial conference as little more than a scheduling conference to set the final trial 

date. Others go to the opposite extreme and require preparation of 

elaborate statements, summaries, and stipulations. There is much to 

be said for a middle course: doing whatever is necessary, given the circumstances of the case, to lay the groundwork for a fair and efficient 

trial. Here are some of the agenda items the judge should consider.

Defining and narrowing the issues 

The judge should have attempted to define and narrow the issues 

at the initial conference, but by the time of the final pretrial conference everyone will have a clearer understanding of the case. This 

conference presents the last and best opportunity to prevent waste of 

valuable trial time on pointless or undisputed matters. A good way 

to focus the issues is to require the parties to submit proposed jury 

instructions (or proposed findings of fact and conclusions of law in 

bench trials) that set forth clearly the governing rules of law and the 

factors controlling their application.

Previewing the evidence

By hearing and ruling on motions in limine, the judge can head off 

admissibility disputes during trial. The final pretrial conference provides an opportunity to hold a hearing under Rule 104 of the Federal 

Rules of Evidence to determine the admissibility of expert testimony 

under Daubert, and to exercise the authority conferred by Rules 403 

and 611. The judge can bar duplicative testimony (by limiting each 

side’s expert or character witnesses, for example). So, too, the judge 

can eliminate testimony about matters not in dispute. For example, 
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there is no point in having a handwriting expert if there is no dispute 

over who was the writer. Many foreseeable objections to testimony—

such as hearsay objections—can be resolved before trial, as can issues 

concerning the permissible scope of opening statements.

Proposed exhibits should be previewed with a view to holding 

down their number and volume. There is little point in inundating jurors with a mass of exhibits beyond their capacity to read and absorb. 

(In post-trial interviews, jurors often complain that the lawyers presented too much evidence.) The judge may suggest that voluminous 

exhibits be redacted to eliminate unnecessary portions and cumulative exhibits be eliminated. Sometimes information from numerous 

exhibits can be presented in a summary exhibit (as authorized by 

Federal Rule of Evidence 1006). Previewing proposed exhibits can 

also save valuable trial time, since the judge can rule on evidentiary 

objections and receive into evidence unobjectionable exhibits. 

Considering limits on the length of the trial

Trials that last too long are costly, exhaust jurors, and hinder comprehension. When a trial threatens to be protracted, some judges find 

it useful to limit the number of witnesses or exhibits each side may 

offer. Other judges sometimes limit the amount of time allowed each 

side for direct and cross-examination, using a chess clock or similar 

means to keep a running account of the time used by each party. 

Such limits can be helpful to the court and the parties but should be 

imposed with care and only after consultation with counsel.

Establishing the ground rules for the trial

The final conference can fix the procedures for trial, including the 

conduct of voir dire and method of jury selection, the order of witnesses, and daily trial schedules.

Considering the use of special procedures

The judge can discuss with counsel and determine the propriety of 

bifurcation, the return of sequential verdicts by the jury, use of special verdicts or interrogatories, and any other phasing arrangements 

or special procedures that may be appropriate.
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Exploring once more the opportunities for settlement

Now that the parties are completely familiar with the case, they may 

be ready to settle if the judge provides the opening.

* * *

The results of the final pretrial conference should be memorialized in a pretrial order. To save time, the judge can dictate the order to 

the court reporter at the end of the conference with counsel present.
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Trial

At trial, the court’s management power transcends the authority 

specifically conferred by rules, statutes, and decisions. The judge has 

broad inherent power over the management of cases, attorneys, and 

parties. That inherent power, employed judiciously, enables the court 

to do what is necessary to produce just, speedy, and economical trials.

Although case management brings judges into areas that were 

once entirely controlled by lawyers, the judge should be careful not to 

take the case away from the lawyers. While the court can and should 

set limits, define issues, and establish ground rules, it should leave 

the case to be tried by the lawyers. The judge needs to appreciate that 

the lawyers have obligations to their clients, obligations that at times 

will be in tension with the court’s objectives. Also, the lawyers know 

the case better than does the judge, who is managing many cases. The 

judge’s task is to bring about a reasonable accommodation by formulating a framework within which the adversary process will function 

constructively. What follow are suggestions for managing the various 

stages of trial.

Starting the trial

The process of selecting jurors varies somewhat from court to court. 

The court may seat from six to twelve jurors, depending on the expected length of the trial, and all jurors remaining when the case goes 

to the jury will participate in the deliberations.

Rule 47 gives the judge the choice of personally conducting the 

voir dire or leaving it to the lawyers. Most judges conduct the voir 

dire themselves in order to expedite jury selection. Doing it oneself, 

however, obligates one to do a thorough job. The judge may have 

members of the venire complete questionnaires before voir dire, 

which can facilitate more focused questioning. It is not enough for 

the judge to ask perfunctory or conclusory questions. Prospective jurors should be questioned individually and invited to give narrative 

answers about their work, interests, and attitudes on critical matters. 

This can be done without taking undue time, especially with customized, case-specific questionnaires. In addition, Rule 47 requires 

that the attorneys be allowed to supplement the examination directly or by submitting questions to the judge. Attorneys will appreciate 
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the opportunity to ask the jurors supplemental questions directly. 

Permitting them to do so need not take much time. The judge can 

limit the time for supplemental questions and not allow repetitious 

questions, and the extra time will be well spent if it helps avoid mistrials by ferreting out potential problem jurors.

More and more judges have come to recognize the value of giving 

at least basic instructions to the jury before the trial begins. (Some 

even give instructions before the voir dire, on the theory that prospective jurors will then be better able to respond to questioning.) 

Pre-instructions inform jurors about how the trial will be run, how 

they are to conduct themselves, how to treat the evidence received, 

and other ground rules. Pre-instructions also educate jurors about 

the case—the elements of the claims and defenses, and the questions 

they will have to decide. 

Helping the jury

Since jurors are the people expected to decide the case, judges ought 

to make every effort to help them in this often difficult task. Assisting 

jurors has become increasingly important in an era of complex litigation. Judges cannot afford to be passive or permissive. They should 

take various steps to help the jury perform its function well.

Judges should see to it that jurors are treated with respect and 

consideration. They are entitled to no less, having made a substantial sacrifice to perform a taxing public service. Trials should start 

on time. Lengthy recesses should be avoided. Jurors should not be 

sent out to wait while the lawyers argue; matters the jury should not 

hear can generally be taken up before the start or after the end of the 

trial day or during a recess. Bench conferences and other trial interruptions should be minimized. Sentencings, pleas, and other matters 

should be scheduled so as not to disrupt the trial.

The trial should move smoothly, without interruptions or surprises. It is helpful to confer with counsel at the end of each day to 

preview the next day’s witnesses and exhibits, to anticipate evidentiary and other problems, and to make sure the lawyers will not run 

out of witnesses.

The lawyers should be encouraged to speak (and have their witnesses speak) clearly and in plain language. As witnesses testify about 
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exhibits, lawyers should help jurors follow by using visual aids. The 

judge should not hesitate to explain to the jurors any procedures that 

might be confusing and to recap the progress of the case.

Other aids to jury understanding are also worth considering. 

Most judges, for example, permit jurors to take notes (subject to appropriate instructions). Some judges prepare notebooks for the jurors containing the names and identification of witnesses and other 

helpful information. Some judges have found that allowing jurors to 

submit questions in writing can assist jury comprehension.

Instructions, summations, and deliberations

If the lawyers submit their requested jury instructions or charges at a 

pretrial conference, the judge will have time to organize and simplify 

them as the case progresses, and to supplement or modify them in 

response to developments during the trial and the lawyers’ supplemental requests. This procedure enables judges to settle instructions 

quickly at the close of the evidence and move promptly to final arguments.

Obviously, it is important to make sure the jury understands the 

jury instructions. The instructions should be written in plain language, not legalese. Judges should not hesitate to rewrite the lawyers’ 

requested instructions in simple, well-organized prose. Rather than 

being thrown together and read in random order, instructions should 

be carefully organized in a sequence that reflects the logic of the case. 

Instructions should be kept brief; a juror’s attention span is not unlimited. The court should not give an instruction, even if requested, 

unless it is needed—too many instructions, given out of habit, merely 

cause confusion.

Federal Rule of Civil Procedure 51 permits the judge to instruct 

the jury before or after closing arguments. Many judges find that instructing before the arguments saves time by making it unnecessary 

for the lawyers to preview the instructions in their arguments; this, in 

turn, reduces the likelihood of objections. Having heard the instructions first, the jury may get more out of the attorneys’ arguments. 

The lawyers should be encouraged to keep their closing arguments 

brief—rarely should they exceed one hour per side.
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The Elements of Case Management, Third Edition

It is difficult for a jury to understand and remember the judge’s 

instructions after having heard them only once. Accordingly, most 

judges now give a copy of the charge to each juror to take into the 

jury room. Experience suggests that doing so does not increase the 

difficulty of reaching a verdict. Storing electronic copies of common 

jury instructions and adapting them as necessary to the particular 

case allows a judge to conveniently produce a set of instructions.

The judge should make sure that before any exhibits are sent to 

the jury room, they have been carefully checked by the courtroom 

deputy and all counsel. It is critical that no extraneous documents, 

such as excluded exhibits, are seen by the jury.

Reasonable people differ about the desirability of special verdicts 

or general verdicts combined with special interrogatories. These devices may reduce the risk of having to retry the entire case following 

a partially successful appeal, but they increase the risk of inconsistent 

verdicts. Special verdicts must, therefore, be drafted with great care 

and the aid of counsel.

During deliberations, the jury may send questions to the judge 

or ask for further instructions. The judge should always consult with 

counsel before responding and respond only on the record. Where 

possible, the jury ought to be given the help it needs to arrive at a verdict, but within limits—for example, the judge should avoid getting 

involved in lengthy read-backs of testimony. When one is requested, the jury may be asked to narrow its request to specific testimony. 

Some judges instruct jurors at the beginning of the case that readbacks will not be available, so the jurors must listen carefully.

When the jury advises that it is deadlocked, the judge faces a difficult choice. A mistrial should not be declared until it is clear that 

the deadlock is hopeless. While it is appropriate to encourage the jury 

to try a bit longer—the longer the trial, the longer the jury should 

be given—the judge must not exert undue pressure. The judge may 

wish to consult instructions to deadlocked juries (“Allen charge”) 

that have been approved by the court of appeals. 

Bench trials

Although a bench trial is subject to fewer formalities, it should not 

be allowed to proceed in a careless and disorganized fashion. Since 
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The Elements of Case Management, Third Edition

the judge will be the one to decide the case, he or she has an interest 

in keeping it under control, limiting the testimony and exhibits to 

what is essential, and having the evidence presented in an orderly and 

comprehensible manner. Judges should not receive evidence on the 

assumption that it can be sorted out back in chambers. Once the trial 

is over, the judge will be occupied by other things, and by the time he 

or she gets back to it, the case will be cold.

Except when there are serious issues of credibility, the judge can 

have the parties submit much of the direct testimony of their own 

witnesses in the form of narrative written statements. These can be 

received at trial in lieu of direct testimony, subject to objections, supplementation, and cross-examination. This will improve the quality 

of the record on both the direct and the cross-examination, save time, 

and help the judge reach a decision.

As soon as the evidence has been received, the judge can have the 

lawyers argue the case as they would in a jury trial. Post-trial briefs 

should be avoided, except in cases involving complex legal issues. If 

at all possible, the judge should be prepared to dictate an opinion to 

the court reporter at the end of the closing arguments.
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The Elements of Case Management, Third Edition

Using the Court’s Resources

Effective use of the human and material resources available to the 

judge underlies every stage of case management. While the precise 

use of judicial assistants, deputy clerks, and law clerks depends on 

each judge’s style, a few considerations apply universally.

The position of courtroom deputy clerk has enormous (and often 

unrealized) potential. Courtroom deputy clerks should not simply 

receive and file papers. They can be administrative assistants, managing the judge’s calendar and communications with lawyers. Some 

judges assign this duty to their judicial assistants. In either case, it is 

important that lawyers understand the proper channel of communication and that someone on the court staff be prepared to manage 

it. That person should let the lawyers know what is expected of them 

and should keep the judge apprised of developments in the case—

such as whether it appears likely to settle and whether the lawyers are 

prepared.

Law clerks, generally heavily burdened by the motion calendar 

and other research demands, must be used efficiently. Unless properly instructed and supervised, they may invest vast amounts of time 

on research that is appropriate for law reviews but of little use to the 

court. Judges should always define the specific problems on which 

they need help, making sure the clerks understand the practical context in which the problems arise. Judges should touch base with law 

clerks to ensure that they are on the right track and discourage the 

generation of unnecessary memos and other papers.

Many forms of technology are available to help judges be more 

efficient, revise their clerks’ work, and keep track of their docket and 

calendar. Personal computers in chambers and the court’s case management/electronic case filing system (CM/ECF) are invaluable tools 

for caseload management. Evidence presentation aids and other types 

of courtroom technology can help attorneys to present their cases 

and jurors to understand the evidence. Judges should learn about the 

technologies available in their courts and make use of them. 
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The Elements of Case Management, Third Edition

Related Readings

The following publications provide additional information on case 

management. Copies are available on request.

Awarding Attorneys’ Fees and Managing Fee Litigation, Third 

Edition (Federal Judicial Center 2015)

Civil Litigation Management Manual, Second Edition (Judicial 

Conference of the United States 2010)

Effective Use of Courtroom Technology (Federal Judicial Center 

and National Institute for Trial Advocacy 2001)

Guide to Judicial Management of Cases in ADR (Federal Judicial 

Center 2001)

Managing Class Action Litigation: A Pocket Guide for Judges, Third 

Edition (Federal Judicial Center 2010)

Manual for Complex Litigation, Fourth (Federal Judicial Center 

2004)

Reference Manual on Scientific Evidence, Third Edition (Federal 

Judicial Center 2011)

For bankruptcy judges:

Case Management Manual for United States Bankruptcy Judges, 

Second Edition (Judicial Conference of the United States 2012)
The Federal Judicial Center

Board 

The Chief Justice of the United States, Chair 

Magistrate Judge Tim A. Baker, U.S. District Court for the Southern District of 

Indiana 

Judge Curtis L. Collier, U.S. District Court for the Eastern District of Tennessee 

Chief Judge Barbara J. Houser, U.S. Bankruptcy Court for the Northern District of 

Texas 

Judge Kent A. Jordan, U.S. Court of Appeals for the Third Circuit 

Judge Kimberly J. Mueller, U.S. District Court for the Eastern District of California 

Judge George Z. Singal, U.S. District Court for the District of Maine

Judge David S. Tatel, U.S. Court of Appeals for the District of Columbia Circuit

James C. Duff, Director of the Administrative Office of the U.S. Courts 

Director 

Judge Jeremy D. Fogel 

Deputy Director 

John S. Cooke 

About the Federal Judicial Center 

The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the 

recommendation of the Judicial Conference of the United States. 

By statute, the Chief Justice of the United States chairs the Center’s Board, which 

also includes the director of the Administrative Office of the U.S. Courts and seven 

judges elected by the Judicial Conference. 

The organization of the Center reflects its primary statutory mandates. The 

Education Division plans and produces education and training for judges and 

court staff, including in-person programs, video programs, publications, curriculum packages for in-district training, and Web-based programs and resources. The 

Research Division examines and evaluates current and alternative federal court practices and policies. This research assists Judicial Conference committees, who request 

most Center research, in developing policy recommendations. The Center’s research 

also contributes substantially to its educational programs. The Federal Judicial 

History Office helps courts and others study and preserve federal judicial history. 

The International Judicial Relations Office provides information to judicial and legal 

officials from foreign countries and informs federal judicial personnel of developments in international law and other court systems that may affect their work. Two 

units of the Director’s Office—the Information Technology Office and the Editorial 

& Information Services Office—support Center missions through technology, editorial and design assistance, and organization and dissemination of Center resources.