Pretrial and Trial

12.1. Case-specific pretrial and trial management. The Court may modify the deadlines and requirements in this rule as the circumstances of each case dictate. 12.2. Trial date. The Court will establish a trial date for every case. The Court may establish that date in the Case Management Order or otherwise. The Court ordinarily will not set a trial to begin fewer than sixty days after the Court issues a ruling on any post-discovery dispositive motions. Trial dates should be considered peremptory settings. Any party who foresees a potential conflict with a trial date should advise the Court no later than fourteen days after being notified of the trial date. In addition, after the Court sets a trial date, counsel of record should avoid setting any other matter for trial that would conflict with the trial date. Absent extraordinary and unanticipated events, the Court will not consider any continuance because of conflicts of which it was not advised in conformity with this rule. 12.3. Pretrial process. The following chart sets forth standard pretrial activity with presumptive deadlines. 45 days before pretrial hearing Trial exhibits (or a list of exhibits identified by Bates number if the exhibits were exchanged in discovery) and witness lists served on opposing parties 30 days before pretrial hearing Deposition designations opposing parties served on 21 days before pretrial hearing Pretrial attorney conference 31 TOC Rule 12 Deposition counter-designations and objections to deposition designations served on opposing parties Supplemental trial exhibit and witness lists served on opposing parties 17 days before pretrial hearing Objections to trial exhibits served on opposing parties 14 days before pretrial hearing Motions in limine and briefs in support, if any, filed and served Proposed pretrial order filed and served 7 days before pretrial hearing Responses to motions in limine filed and served No later than 14 days before trial Pretrial hearing 7 days before trial Trial brief, if any, filed and served Proposed jury instructions filed and served findings and Proposed conclusions of law, if necessary, filed and served fact of Submit joint statement of any stipulated facts 12.4. Pretrial attorney conference. for conducting a pretrial conference. At the conference, the parties should discuss the items listed in the Court’s form pretrial order. Lead trial counsel (and local counsel, if different) for each party must participate in the conference. The conference may be an in-person conference or conducted through remote means. Counsel are responsible 12.5. Proposed pretrial order. Counsel are responsible for preparing a proposed pretrial order. Appendix 5 to these rules contains a Proposed Pretrial Order template. The parties are encouraged to use the form order to prepare their own order but may also deviate from the form order as the nature of the case dictates. The proposed order should generally include the following items: (a) stipulations about the Court’s jurisdiction over the parties and the designation and proper joinder of parties; 32 TOC Rule 12 (b) (c) (d) (e) (f) (g) a list of trial exhibits (other than exhibits that might be used for rebuttal or impeachment) and any objections to those exhibits; the timing and manner of the exchange of demonstrative exhibits or any proposed exhibits not produced in discovery including whether demonstrative exhibits will be used in opening statements; a list of trial witnesses, including witnesses whose testimony will be presented by deposition; a list of outstanding motions and motions that might be filed before or during trial; a list of issues to be tried, noting (if needed) which issues will be decided by the jury and which will be decided by the Court; the technology that the parties intend to use, including whether that technology will be provided by the Court or by the parties; (h) whether the parties desire to use real-time court reporting and, if so, how the parties will apportion the costs of that reporting; (i) (j) (k) (l) any case-specific issues or accommodations needed for trial, such as use of interpreters, use of jury questionnaires, or measures to be employed to protect information that might merit protection under Rule 26(c)(vii) of the Rules of Civil Procedure; a statement that all witnesses are available and the case is trial-ready; an estimate of the trial’s length; and a certification that the parties meaningfully discussed the possibility and potential terms of settlement at the pretrial attorney conference. 12.6. Deposition designations. If a party desires to present deposition testimony at trial, then the party must designate that testimony by page and line number of the deposition transcript. A party served with deposition designations may serve objections and counter-designations; the objecting party must identify a basis for each objection. All designations, counter-designations, and objections should be exhibits to the proposed pretrial order. In addition, the party that designates deposition testimony to which another party objects must provide the presiding judge with a chart in Microsoft Word format that lists (i) the testimony offered to which another party objects, (ii) the objecting party, (iii) the basis for the objection, and (iv) a blank line on which the presiding judge can write his or her ruling. 12.7. Pretrial hearing. The Court will conduct a pretrial hearing no later than fourteen days before trial. Lead counsel (and local counsel, if different) for each 33 TOC Rule 12 party must attend the hearing. The Court may order a party with final settlement authority to attend the pretrial hearing, but no party will be required to attend unless ordered by the Court. The pretrial hearing may include any matter that the Court deems relevant to the trial’s administration, including but not limited to: (a) (b) (c) (d) (e) (f) a discussion of the items in the proposed pretrial order; argument and ruling on any pending motions and objections, including objections to exhibits and deposition designations included in the proposed pretrial order; the resolution of any disagreement about the issues to be tried; unique jury issues, such as preliminary substantive jury instructions, juror questionnaires, or jury sequestration; the use of technology; the need for measures to protect information under Rule 26(c)(vii) of the Rules of Civil Procedure; and (g) whether any further consideration of settlement is appropriate. 12.8. Final pretrial order. The Court will enter a final pretrial order. 12.9. Motions in limine. Unless the Court orders otherwise, briefs regarding motions in limine are not required if the grounds for the motion are evidenced by the motion itself. Opening and response briefs may not exceed 3,750 words. Reply briefs will only be permitted in exceptional circumstances with the Court’s permission or at the request of the Court. The Court may elect to withhold its ruling on a motion in limine until trial, and any ruling the Court may elect to make on a motion in limine prior to trial is subject to modification during the course of the trial. 12.10. Jury instructions. (a) (b) Timing. When filing proposed jury instructions, a party must also e-mail a copy of the proposed jury instructions in Microsoft Word format to the judicial assistant for the presiding Business Court judge. Issues. In addition to the form as provided below, the jury instructions must state the proposed issues to be submitted to the jury. (c) Form. (1) Every instruction should cite to relevant authority, including but not limited to the North Carolina Pattern Jury Instructions. 34 TOC Rule 12 (2) (3) (4) (5) Each party should file two different copies of its proposed instructions: one copy with the citations to authority, and one copy without those citations. Proposed instructions should contain an index that lists the instruction number and title for each proposed instruction. Each proposed instruction should be on its own separate page, should be printed at the top of the page, and should receive its own number. The proposed instructions should be consecutively numbered. If the parties propose a pattern jury instruction without modification to that instruction, then the parties may simply refer to the instruction number. If the parties propose a pattern instruction with any modification, then the parties should clearly identify that modification. (d) Preliminary instructions. The parties may further propose that the Court provide the jury preliminary instructions prior to the presentation of the evidence. In that event, the parties must provide the proposed form of any such preliminary instructions and the parties’ proposal as to the time at which such preliminary instructions will be presented. 12.11. Proposed findings of fact and conclusions of law. The Court may require each party in a non-jury matter to file proposed findings of fact and conclusions of law. 12.12. Trial briefs. Unless ordered by the Court, a party may, but is not required to, submit a trial brief. A trial brief may address contested issues of law and anticipated evidentiary issues (other than those raised in a motion in limine). The trial brief need not contain a complete recitation of the facts of the case. A party may not file a brief in response to another party’s trial brief unless the Court requests a response. Unless otherwise ordered by the Court, a trial brief is not subject to the word limits for briefs under BCR 7. 12.13. Stipulated facts. If the parties intend to file a joint statement of any stipulated facts other than any stipulated facts listed in the proposed pretrial order, then the parties must file the statement before the trial begins. The statement should also explain when and how the parties propose that the stipulations be presented to the jury. If the parties cannot agree on when and how the stipulated facts should be presented to the jury, then the Court will decide this issue before jury selection. History Note. 372 N.C. 911; 372 N.C. 844; 381 N.C. 886. 35 TOC Rule 13