Thinking Outside the Civil Case Box: Reformulating Pretrial Conference Laws
Parness, Jeffrey A.
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The civil case box generally described in written civil procedure laws references only presented claims and their named parties, including representative attorneys and agents tied to recovery or liability. Yet in many civil cases there must also be determined unpresented claims (i.e., insurance coverage) and nonparty interests (i.e., contingent or expert witness fee recovery). Unrepresented claims and nonparty interests should be processed, like presented claims, with a view toward "just, speedy, and inexpensive" resolutions. Such resolutions can be facilitated through pretrial conferencing. Written pretrial conference laws should be amended to encompass all that may be settled or tried in civil cases. These laws, for example, should speak to who may be directed to attend judicial settlement conferences and the role of trial courts in later enforcing settlements in the very cases in which they occurred.