Massachusetts Pre Trial Conference

Pretrial Conference, Pretrial Hearing and Pretrial Memo

A Pretrial Conference is a critical hearing that allows the court to determine which issues will be most important at trial and gives the Parties an opportunity to settle some or all dispute in their case. Only a small amount of cases filed will actually make it to trial. 

What is a Pretrial Conference:

Before being given a trial date, the Parties to a Massachusetts family law case must take part in a Pretrial hearing with the judge presiding over the case. The Parties are usually notified of the date of the Pretrial hearing by the issuance of a court order called a Pretrial Notice and Order. 

Pretrial Notice and Order: 

The Pretrial Notice serves several functions:

1. Orders the Parties to meet sometime before the Pretrial hearing in an attempt to settle the case early and avoid trial
2. Orders the Parties to submit Pretrial Memos

The specific obligations imposed on the Parties by the Pretrial Notice and Order may vary. 

What Happens During a Pretrial: 

During the Pretrial hearing, the judge will enter on the record any agreements the Parties have reached, and those will become binding agreements. The judge will also address the issues that still need to be resolved before the case can be settled, as well as, any witnesses you intend to call at trial, any evidence you plan to enter into the case, and the number of days the court should reserve for trial, among other things. 

The Pretrial hearing will also give you and the other Party another opportunity to discuss unresolved issues in person and to settle these issues before a trial. This will be facilitated by the judge going over the Memo, hearing oral arguments from both Parties, and then giving you feedback on contested matters. 

The judge is not allowed to decide or rule on disputed issues at this hearing, but will rather set those issues for a trial or evidentiary hearing. So, you should not use your time at the Pretrial hearing to argue why the judge should side with you or why the other Party is wrong. Instead, you should use the time to try to reach an agreement with the other Party on any outstanding issues. 

While the judge is not allowed to decide the case at the Pretrial hearing and cannot guarantee that his or her opinion on certain matters will be the same after a trial, his or her feedback may influence you to do more to reach an agreement with the other Party on one or more of the outstanding issues. 

Concluding the Pretrial: 

If it looks like the case may be settled easily, the judge may order you and the other Party to step out and discuss the unresolved issues before being called back into the courtroom. Even if you cannot reach an agreement on all of the unresolved issues, you may be able to file a partial judgement on the issues that have been resolved, thereby by reducing the number of issues that need to be resolved at trial. 

In some cases, for example, when the only witnesses are the Parties themselves, the judge may decide to conduct the trial then and there. Therefore, you should be fully prepared at the Pretrial hearing to enter into an agreement for judgement on your case. However, if after being called back to the courtroom, there are still unresolved issues, the judge will set a date for trial, which typically concludes the Pretrial hearing. 

Four-Way Meeting: 

When involved in a court cases with a Pretrial Conference, the client and attorney will be required to meet the opposing party at least seven (7) days before the Pretrial Conference, this meeting is the Four-Way Meeting. The purpose of this meeting is to try to settle the case before trial. Four-way Meetings are not always required if the case involves a domestic violence restraining order or protective order. 

It is possible to resolve some issues during the Four-Way Meeting, the remaining issues will continue to litigate others. 

EX: You may resolve parenting issues and leave disputes over property division, alimony or child support unsettled. 

If the Four-Way Meeting was successful and the Parties were able to resolve each of the contested issues, the attorney will draft a separation agreement. 

Pretrial Memo: 

At least three days before the Pretrial Conference, both Parties must submit a written memorandum to the court and the opposing party. The Pretrial Memorandum is a legal pleading to assist the court in better understanding each Party’s position regarding issues that need to be resolved. The Pretrial Memo must summarize all of the points the Party plans to argue at trial, as well as, any witnesses and evidence they plan to enter into the case. 

The point of the Pretrial Memo is to outline the client’s position and present their story in the best light. 

A Pretrial Memo generally includes:

1. Parties and counsel
2. General description of claims and defenses of the Parties 
3. Plaintiff’s/Defendant’s position on the case
   1. 1. 1. Custody/parenting time 
         2. Child support 
         3. Asset division allocation 
         4. Martial home 
         5. Opposing counsel 401k/retirement 
         6. Opposing counsel stocks/SSAR’s and RSU’s 
         7. Extracurricular activity expenses 
         8. Health care coverage 
         9. Life insurance 
         10. Debt allocation/attorney’s fees 
4. Uncontested facts 
5. Contested facts
6. Status of discovery
7. Schedule of exhibits 
8. List of witnesses
9. List of expert witnesses
10. Estimated trial time
11. Written offer of proper regarding factors to G.L.c. 208, 34, 48-55
    1. 1. 1. Length of the marriage 
          2. Conduct of the Parties during the marriage 
          3. Ages of the Parties 
          4. Health of the Parties and children 
          5. Marital life style 
          6. Educational and vocational skills of the Parties 
          7. Health Care coverage
             1. Employment and employability/opportunity of the respective Parties for future acquisition of capital assets and income 
12. Representation of good faith negotiation