Early Meeting of Counsel

The early meeting of counsel initiates the discovery period. This is important because we want to get the documents, particularly the interviews of the involved officers and any video footage, and then take the depositions of the involved officers before any other depositions are taken in the case. After the defense appears in the case, you should reach out to the defense counsel and ask to schedule the early meeting. Typically, however, the defense counsel will only agree to hold the early meeting of counsel after the judge sets a scheduling conference and/or after the defense answers the complaint. The judge will issue a scheduling order that provides (1) a date for the scheduling conference in court, (2) a date by which the parties must meet and confer to agree on a discovery plan, and (3) a format for what needs to be included in the joint report.

Rule 26 Scheduling Conference Report

The scheduling conference report proposes the schedule of dates in the case, including the discovery cutoff and the trial date. The report must be filed jointly. The categories of information to be included in the report, as well as the events for which dates must be selected are listed below. The judge will typically issue a chart that lists all the events for which the judge wants proposed dates, with suggested time frames (i.e., the final pretrial conference will occur 2 weeks prior to the trial date).

Categories in Joint Scheduling Report

1. Statement of the Case: This will be separated between Plaintiffs’ statement and Defendants’ statement
2. Subject Matter Jurisdiction: The court has supplemental jurisdiction over the state law claims.
3. Legal Issues: List out the issues pertaining to Plaintiffs’ claims for relief.
4. Parties and Evidence
5. Damages: Plaintiffs cannot typically give a specific estimate of damages, but if there are medical bills and/or funeral and burial expenses, you can list those.
6. Insurance: The defense will fill this in.
7. Motions: If we don’t know the names of the involved officers, we need to state that we intend to file a motion to amend. We should also list in this section that we request a minimum of two weeks to oppose any dispositive motion.
8. Manual for Complex Litigation: This does not apply.
9. Status of Discovery: Typically discovery wouldn’t have started at the time of the filing of the report.
10. Discovery Plan: Discuss the depositions we intend to take and the written discovery we intend to propound.
11. Discovery Cut-off: This date should fall prior to the last day to file a motion for summary judgment. Some judges request a proposed date for the fact discovery cutoff in addition to an all discovery or expert discovery cutoff.
12. Expert Discovery: Propose dates for the initial and rebuttal expert disclosures.
13. Dispositive Motions: The last dates to file and hear a motion for summary judgment should be sufficiently in advance of the pretrial filing deadlines.
14. Settlement/Alternative Dispute Resolution: We typically agree to use the attorney settlement panel, which is free for the first 3 hours, and we would also agree to private mediation. Rick Copeland, our preferred mediator, is on the list of mediators who participate in the attorney settlement panel pro bono for 3 hours.
15. Trial Estimate: Our typical excessive force trial lasts between 5 to 7 days.
16. Trial Counsel
17. Independent Expert or Master: This does not apply to our cases.

Events for Which the Parties Propose Dates

• Jury Trial—check Dale’s trial calendar for a clear date about one year out.
• Final Pretrial Conference—this date falls 2 weeks prior to trial.
• Last Day to Conduct Settlement Conference—this date should fall about 4 weeks out from the last day to hear dispositive motions.
• Last Day to Hear Non-Discovery Motions—this pertains to the MSJ. This date should be sufficiently in advance of the pretrial filing deadlines.
• All Discovery Cutoff—this date should fall prior to the last day to file a dispositive motion so that we have all the deposition transcripts we need to oppose the motion.
• Initial Expert Disclosure—this date should be at least 2 months prior to the final or expert discovery cutoff and about 2 months prior the last day to file MSJ.
• *Rebuttal Expert Disclosure—*this date should be at least 3 weeks after the initial expert disclosure so we have time to retain a rebuttal expert.
• Last Date to Amend Pleadings or Add Parties—we want this date pushed out as far as possible.

Initial Disclosures

Prior to the scheduling conference, the parties must exchange the information they possess relative to their claims and defenses. For us, that includes several of the documents that we would have collected during the pre-lit workup and investigation. Ask the defense counsel during the early meeting whether they want to exchange the actual documents at the time that the initial disclosures are made. Typically, the defense won’t actually produce the documents; rather, the defense will list categories of documents that exist and will list individuals with discoverable information. For that reason, we need to propound a Request for Production of Documents right away to actually obtain copies of the documents that the defense lists in their initial disclosures.