The Evidence Ruling at Pretrial in the Federal Courts

Rule 16 of the Federal Rules of Civil Procedure, 1 adopted in 1938, made the pretrial conference available to federal district courts. 2 The pretrial conference was originally introduced in the United States to clear congested court dockets;' a primary purpose of the pretrial procedures created by Federal Rule 16 remains pruning away unnecessary proof and 1 This rule provides:In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider(1) The simplification of the issues;(2) The necessity or desirability of amendments to the pleadings;(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;(4) .The limitation of the number of expert witnesses;(5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;(6) Such other matters as may aid in the disposition of the action.The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.The court in its discretion may establish by rule a pretrial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to nonjury actions or extend it to all actions. 2 In the quarter century since its inauguration pretrial has gained wide acceptance among federal judges as a worthwhile procedural innovation.See, e.g., 3 MooIE, FEERAL PRACricn § 16.06 (2nd ed.1964); Kaplan, Remarks, 29 F.R.D. 462 (1962).The pretrial conference has also been adopted in some form by forty four states.RosEN-BERG, THE PRETarL CoNFrENcE AND ErFacrrv JusTicE 210 (1964).While this Comment is not directly concerned with pretrial procedure in the states, many states have pretrial rules with provisions similar to those of Federal Rule 16.Id. at 210-15.Some states have a pretrial rule virtually identical with Federal Rule 16.See IhsTrnmu or JODIcAL AsmnasSTRAT0io, FEDERAL RorwEs or CIVum PROCEDnm-I mACT ON STATE, PRoCEDmmR 1 (1962); Clark, Two Decades of the Federal Civil Rules, 58 CoLurm.L. REV.435 n.2 (1958).What is said here about federal pretrial, therefore, may well be applicable to pretrial in a substantial number of the states.3 HoLrzorF, N.w FEDERAL PaocarnmR Am =m CouRn s 53-55 (1940); Lousell, Discovery and Pretrial Under the Minnesota Rules, 36 Mnm.L. Ray.633, 661-62 (1952).Contrary to the belief of pretrial's early supporters, recent empirical studies indicate that pretrial may not effectively conserve judicial time.RosaunxRo, op.cit.supra note 2, at 45-53; Comment, California Pretrial in Action, 49 CArr.L. Rav.909, 918-20 (1961).Pretrial has perhaps been more successful in improving the quality of trial and eliminating surprise from the adversary process.ROSEwBERG, op.cit.supra note 2, at 28; Loulsell, Book Review, 53 CALaO.