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What things should you agree to at the start of a civil case?

By Ernie the Attorney

When a case first gets going it's easy for lawyers to agree to how the case will be handled. So that's the best time to agree on a case specific method of handling certain housekeeping issues, or other matters.  The Federal Rules of Civil Procedure have the mandatory Rule 26(f) conference which say that "the parties must confer as soon as practicable ? and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b)."

What sort of things should be discussed at this conference?  I'm going to start with one suggestion. I know that there are many and I invite everyone to add their thoughts. After we get all of the thoughts together I'm going to start a new blog post (or maybe a wiki) that lists all of the suggestions on one neat package that may be of benefit to other lawyers.

Here's my suggestion, which occurred to me after I got a great comment to a post where I equated the bulky paper deposition notices that I kept getting to spam.  I had suggested that it would be better if people just served these notices by email.  An astute commenter made the point that this is possible under Rule 5:

"Rule 5 is on point here, which says that a paper, including a notice, is served by "sending it by electronic means if the person consented in writing ? in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served." Fed. R. Civ. P. 5(b)(2)(e)."

So my proposal would be to: (1) agree with counsel in writing that service of pleadings and notices could be accomplished by email.  The rule makes it clear that the service would not be effective if the email bounces back (i.e. you would have "learn[ed] that it did not reach the person to be served.")

So what are your recommendations for things to discuss in the initial meet & confer? (Let's assume that we're in federal court so we can use the Federal Rules as our guideline; later on we can tailor the list to state courts).

Just click on the comment link below to add your thoughts.

Full post as published by Ernie the Attorney on September 18, 2009 (boomark / email).