From the Fourth District Court of Appeal
In a recent opinion, the Fourth District Court of Appeal reminded litigants that the pretrial stipulation “is surely one of the most coveted and effective pretrial devices enjoyed by the trial court and all involved parties.” Stressing the “tremendous efficacy” of “The Pretrial Stipulation” (lead capitals intended by the Court), the call is out to the trial bar to remember that the pretrial stipulation is “a powerful blueprint that fully enables a well-run and fair trial… and should be strictly enforced.”
“The final agreed upon ‘executive summary’ [is] what the impending trial is about and [sets] the specific issues that remain on the table,” Justice Ciklin wrote. “[M]ost importantly,” he continued, “is that the issues to be tried become ‘memorialized in The Pretrial Stipulation’ and only those issues are officially considered to be an issue for trial.”
In an opinion from 2011, the Court took the insurer’s trial counsel to task for improper “gotcha” trial tactics for pushing the trial court to include in the jury instructions an issue that had clearly been resolved by agreement in the stipulation. In reversing judgment for the insurer on an abuse of discretion standard, the Court wrote that the trial court had “impermissibly abandoned the stipulation.”
The Fourth District placed blame for the abandoned stipulation squarely on the shoulders of trial counsel, opining that the justice system depends upon lawyers as officers of the court. By abandoning that role and engaging in gamesmanship by failing to honor the stipulation, they violated their responsibilities. The Court relied on Broward Circuit Court’s Local Rule 9 that states that “stipulated facts require no proof at trial” and that the form of a filed joint pretrial stipulation consists of a “statement of disputed issues of law and fact to be tried.”
The Court holds the trial bar to a high standard once the Pretrial Stipulation has been agreed and filed as required by Rule 1.200 and Local Rule 9. Litigants should take the time and care to ensure that the issues they intend to present at trial are properly presented in the stipulation, or they may be deemed as waived, including factual and legal issues as well as objections to the admissibility of documents and witnesses’ testimony, and other matters.
There may still be the ability to correct a later perceived error contained within the filed Pretrial Stipulation. The standard is high, but matters may be withdrawn from the stipulation “by making a reasonable motion to withdraw the pretrial stipulation by a showing of good cause.” A heavy burden is placed on the requesting litigant and such relief will be denied where it appears that the stipulation was voluntarily undertaken and there is no indication that the agreement was obtained by fraud, misrepresentation, or mistake of fact.
Conversely, the trial court has the discretion to decide issues that are outside of the agreed stipulation where reaching such an issue is implicit or necessary to resolve issues that are properly before the court. In one case the pretrial stipulation did not contain any stated issue as to the final disposition of the sales proceeds following the resolution of who actually owned real property to the true former owner. That order “was a necessary consequence” based on the court’s determination of the true property owner, an issue that was included in the pretrial stipulation. Thus, the circumstances of the case can permit the trial court to determine an omitted issue as a natural extension of the stated issues.
Even though pretrial stipulations are to be strictly construed, they are also “not to be construed technically, but rather in accordance with their spirit and in furtherance of justice.” The art of agreeing to the pretrial stipulation is in having clear understanding of the issues that must be included in the trial, without inadvertently waiving issues that would ultimately prove important for success.
Because the Pretrial Stipulation is intended to bind the parties to the issues presented, the parties’ agreement to the stipulation must be made with extreme care and advocacy. Trial counsel would be well served during the negotiation and preparation of the Pretrial Stipulation to be mindful of Chief Judge Ciklin’s view that “the trump card upon which all parties to any litigation can virtually always rely is the Pretrial Stipulation.”
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