Trial Preparation

The trial on paper

By the time a jury is picked for a civil trial in Volusia County, the lawyers have already written the trial down. The Seventh Judicial Circuit’s pretrial procedures for civil actions (opens in a new tab), last updated in January 2023, make them meet first. Then they file one joint pretrial statement, signed by every lawyer in the case. It says what the jury will be told the case is about, which facts nobody disputes, and which facts the jury must decide. It lists the exhibits each side will offer, with the other side’s objections noted beside them, and the witnesses each side expects to call. The federal court for Volusia County, the Middle District of Florida’s Orlando Division, asks for the same kind of document under its own local rule.

Each part of that statement is the end of a line of work, and much of that work can be a paralegal’s. This reading walks through the statement part by part and asks two questions of each: where does it come from, and who on the trial team builds it? The simulation in the activity asks the same two questions with six weeks left before trial.

The dates behind the statement

The joint pretrial statement is the last paper in a line of dates, and the case management order sets most of them. Florida Rule of Civil Procedure 1.200, rewritten effective January 1, 2025, has the court put each case on a track within 120 days after it begins. The court must issue a case management order by then too, and its deadlines must be strictly enforced unless the court changes them. In the Seventh Circuit, the chief judge’s uniform case management order (opens in a new tab) puts a case with a jury demand on the general track. Its projected trial period comes no later than 18 months after the case is filed.

The order counts its discovery dates back from docket sounding, the circuit’s name for the calendar call before the trial period. In a general-track case, a party seeking relief discloses its expert witnesses 120 days before docket sounding, and the other side discloses its experts 90 days before. Every party discloses its fact witnesses 60 days before. Written discovery must be served 45 days before docket sounding, and all discovery closes 10 days before it. Motion deadlines count from the trial instead. A dispositive motion is due 120 days before the trial period, and a challenge to an expert 60 days before. Most other pretrial motions, including a motion in limine, are due 30 days before trial.

The trial date itself comes later. Under Rule 1.440, the court must enter an order setting the trial period at least 45 days before the projected period in the case management order. The trial period must then begin at least 30 days after that order is served, unless the parties all agree otherwise. The Seventh Circuit’s posted form of that order sets a two-week trial period and a docket sounding, and it incorporates the pretrial procedures.

Two documents mean two sets of numbers, and here they differ. The 2023 procedures give a party seeking relief 75 days before docket sounding to name its experts, and they allow a challenge to an expert by motion in limine up to 30 days before trial. The 2025 order says 120 days and 60 days. The procedures settle the conflict themselves: where they are inconsistent with a case management order, the case management order governs. A plaintiff’s calendar built from the older document alone would miss the expert deadline by 45 days.

Federal court keeps a different clock. Under Federal Rule of Civil Procedure 26(a)(3), each party makes its pretrial disclosures at least 30 days before trial, unless the court orders otherwise. Objections are due 14 days later, and one not made by then is waived, with a few exceptions. Rule 37(c)(1) bars a party from using a witness or information it failed to disclose, unless the failure was substantially justified or harmless.

The witness list and the Bingers’ expert

Florida’s rule on witness lists comes out of a fight over one expert. In 1976, Robert and Beverly Binger sued King Pest Control for damages from an automobile accident. The trial court ordered both sides to exchange witness lists at least 20 days before trial. The Bingers named their main witnesses and added a line promising whatever impeachment or rebuttal witnesses they might need. More than a month before trial, King Pest Control added an expert in accident reconstruction, Burton Murrow of the University of Miami. The Bingers deposed him four days before trial.

They had already hired their own expert, Daniel R. Wells, a physics professor, several weeks before trial, and Wells reviewed Murrow’s deposition. They never listed him. At trial, after the defense rested, the Bingers called Wells over King Pest Control’s objection. He testified that the facts Murrow had been given could not support an opinion on the vehicles’ speed or the distances they traveled. The jury assessed the Bingers’ damages at $50,000, reduced to $37,500 for their own comparative negligence.

The Fourth District Court of Appeal reversed and ordered a new trial. In Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981) (opens in a new tab), the Florida Supreme Court approved that decision over one dissent. An order to exchange witness names, the court held, requires a party to list every witness it reasonably foresees calling, “whether for substantive, corroborative, impeachment or rebuttal purposes.” A catch-all line for unnamed witnesses is not disclosure. A trial court may exclude an unlisted witness, the court said, and the choice should turn mainly on whether the surprise prejudices the other side. Bad faith, the chance to cure the surprise, and disruption to the trial count too. The Bingers knew who Wells was and what he would say, and they held him back to surprise Murrow. That intentional nondisclosure prejudiced King Pest Control, and the new trial stood.

For more than forty years, Florida’s district courts applied Binger. Several read it to require a finding of prejudice before a judge could exclude a late witness. The 2025 rules point the other way. Rule 1.200 now says case management deadlines must be strictly enforced. New Rule 1.380(d) bars a witness a party failed to identify in its required disclosures, unless the failure was substantially justified or harmless. That is the federal test. In Crecelius v. Rizzitano, No. 6D2024-2217 (Fla. 6th DCA Feb. 27, 2026) (opens in a new tab), the Sixth District held en banc that a trial court may exclude experts disclosed after a case management order’s deadline without finding prejudice. It certified that its decision conflicts with decisions of the First, Second, Third, and Fourth Districts. On August 3, 2026, the Florida Supreme Court agreed to review Wal-Mart Stores East, L.P. v. Wynn, No. SC2026-0611 (opens in a new tab), a Sixth District case that raises the same question. Until it rules, the standard can depend on where the case is tried.

Either way, a witness listed on time raises neither question. The Seventh Circuit’s procedures ask for what Binger asked for: every fact witness a party in good faith expects to call, impeachment and rebuttal witnesses included, filed 60 days before docket sounding. Absent good cause, an unlisted witness does not testify, and exhibits work the same way. Here the two systems part. The federal disclosure under Rule 26(a)(3) leaves out evidence meant only for impeachment, and the Volusia list does not.

A list gives a witness permission to testify, but it does not bring the witness to court. A subpoena does that. Under Rule 1.410, anyone authorized to serve process, or any nonparty adult, may serve it, and a witness who ignores it without an adequate excuse may be held in contempt. The Seventh Circuit adds a practical edge: a missing witness is no ground for a continuance unless a subpoena was served, or attempted, at least 10 days before trial. And when a witness is out of state or cannot be reached by subpoena, Rule 1.330 lets the court allow a deposition in place of live testimony.

What the rest of the statement settles

The meeting that produces the statement comes first. No later than 10 days before docket sounding, trial counsel must meet, in person or by telephone. They examine and initial every exhibit and agree on which come in without objection. Each remaining objection, with its grounds, goes on a copy of the exhibit list. An objection not noted there is waived, and a listed exhibit no one objects to is admitted. They mark on the witness lists who will actually testify and which depositions will be used. They try to settle, stipulate to the facts that need no proof, and agree on a short statement of the case for the judge to read to the jury.

Then the plaintiff’s attorney drafts the joint statement, and every attorney signs it. Where the sides disagree about a part, the statement sets out both views. Its parts track the meeting: the statement of the case, the admitted facts, and any issues from the pleadings the parties have abandoned. It lists the issues of fact for trial, framed the way an interrogatory verdict would ask them, and the issues of law, procedure, or evidence the judge must decide. Last come the special damages each claimant will try to prove, the annotated exhibit and witness lists, the number of peremptory challenges, and an estimate of the days the trial will take.

Two of those parts lead straight to other work. The issues of fact become the questions on the verdict form, and the verdict form sits beside the jury instructions. The procedures make each party submit proposed instructions and a verdict form by docket sounding, each instruction on its own numbered page with its supporting authority. In a negligence case the starting point is the 401 series of the Florida Standard Jury Instructions (opens in a new tab). The issues of law and evidence, in turn, are what a motion in limine asks the judge to decide before the jury hears anything.

The statement goes to the judge by docket sounding, or at the pretrial conference if the court sets one. Under Rule 1.200, the court may call that conference once a case has an actual trial period, and must on a party’s timely motion. Its agenda, from the issues for trial to the final jury instructions and verdict forms, overlaps the statement.

The federal version follows the same logic under a different name. The Middle District’s Local Rule 3.06 (opens in a new tab) has the parties meet at least 14 days before the final pretrial conference, or another date the judge sets. At least 7 days before it, they file a final pretrial statement “that will govern the trial.” It asks for things the Volusia form does not, among them the basis for the court’s jurisdiction, the substance of each expert’s testimony, the pending motions, and whether more settlement talk would help. Federal Rule 16(e) lets the judge change the order entered after a final pretrial conference only to prevent manifest injustice. The Eleventh Circuit’s pattern jury instructions supply the general charge in federal court, but they have no instruction for a Florida negligence claim, so that part is still drafted from Florida law.

Who builds it, and who signs it

Much of what goes into the statement is work a paralegal can do under a lawyer’s supervision. That includes the annotated exhibit and witness lists, a first draft of the proposed instructions from the standard set, and the itemized special damages. It also includes the subpoenas and the calendar that ties it all together. A trial notebook can follow the same parts, so the paper filed with the court and the binder at counsel table match.

What a paralegal cannot do is make the calls inside those parts: which witnesses to call, which objections to press, which issues to abandon, or whether a stipulation helps the client. The comment to Rule 4-5.3 of the Rules Regulating The Florida Bar (opens in a new tab) says an activity that requires the lawyer’s independent judgment cannot be delegated to a nonlawyer. The same rule makes the lawyer review and answer for a paralegal’s work. That boundary is the one the activity calls the unauthorized practice of law. The Seventh Circuit’s case management order draws part of it on its own: the conferral required before most pretrial motions must be done by counsel, “not staff.” A client’s question about a settlement offer goes to the lawyer too, because advice about the offer is legal advice, and Rule 4-1.2 leaves the decision itself to the client.

Six weeks out

In the activity, Part 1 sends you to these rules and the two Seventh Circuit documents, and then the Simulator seats you across from the supervising attorney with six weeks to go. Build the plan from the dates, and say who owns each task before you promise it. A paralegal can build most of the statement. The lawyer signs it.