Virtually all lawsuits, including criminal cases, have a series of stages: investigative work that may be done before the case is filed, filing and serving the case, exchanging initial disclosures of evidence, discovery, pretrial motions and hearings, a final pretrial conference, trial, and possibly appeal. The length of time that each stage may take in any given case can vary depending on the circumstances. In many cases, one side wishes to move to trial quickly and the other side wishes to delay trial, so there is a tension between the adversaries in each stage of the case about whether and when to move on to the next phase of the case. To make sure that each side has enough time to complete necessary work for each stage and ensure that neither side drags out the stages, judges can enter a special order called a "scheduling order."
A scheduling order establishes firm deadlines for completion of certain tasks by each side to a case. In Oklahoma state courts, scheduling orders are defined by a special rule called Rule 5 of Rules for District Courts of Oklahoma. Rule 5 explains the purposes of these orders and even includes a standard form. Either side may request a scheduling order, or the judge may enter one even if neither side has requested it. In federal court, it is common for judges to enter scheduling orders at the beginning of a case.
A scheduling conference is a court hearing for the lawyers to present their proposed deadlines for each stage of the case. Scheduling conferences are generally uneventful and often unnecessary, because in most cases the lawyers can agree to proposed deadlines between themselves without going to court and simply present an agreed scheduling order to the judge for approval. If the lawyers cannot agree about deadlines, then a scheduling conference is a place where the lawyers can make argument to the judge about how much time they need for any particular part of the case.
Pros and Cons of Scheduling Orders
A scheduling order can help ensure that a case moves forward, especially when the other side has incentive to delay the case and try to avoid trial. Although the deadlines in a scheduling order are not supposed to be easily changed, some judges will allow the attorneys to essentially ignore the deadlines, while other judges will take a very rigid approach to the deadlines. The deadlines in scheduling orders must be treated seriously, even though the approach to scheduling orders varies by judge.
Sometimes a deadline in a scheduling order cannot be met. In most circumstances, the lawyers can agree to move the deadline and present an agreement to the court to reschedule the deadline. There are different legal standards for moving a scheduling order deadline before the deadline has passed versus when the deadline has already passed. In other words, if discovery was ordered to be completed by a certain date and one side needs more time, it is much easier for them to move the deadline if they ask for more time before the deadline expires as opposed to waiting until after the deadline passes then asking for more time. If a deadline is approaching that cannot be met, the problem must be addressed right away.
Our Approach to Scheduling Conferences and Scheduling Orders
Our process for handling cases is designed to ensure that our cases are well put together and ready for a trial as soon as possible. In many cases we do not request a scheduling order because we have worked up the case well enough that the necessary stages are evident and obvious to all the participants. However, sometimes we ask for a scheduling order when we anticipate that the other side is going to play games to try to drag out a case. For instance, as part of our process we generally include a packet of evidence, discovery requests and a settlement offer as part of the paperwork that the other side receives from us in the beginning of a case. By doing this work, we knock out several stages of the typcial litigation process all at once.
Unfortunately, we have had cases where we gave out our evidence, issued discovery requests, received their responses, and we made a settlement offer. Then, when we requested a trial, the other side claimed for the first time that "discovery is not complete" and sent our client discovery requests, months after the case was initiated, and months after they should have already engaged in discovery.
A scheduling order can sometimes preempt and avoid bad behavior by requiring lawyers to issue their discovery early in the case, preventing them from trying to re-start stages of litigation to avoid trial.
We ask our clients to attend every hearing in their matter when possible so they can fully participate and be informed about developments in their case. Although scheduling conferences are routine events that only take a few moments, we invite our clients to attend and hear the deadlines that are issued so that they understand the judge's expectations for progress in their case.