What Is a Pretrial Memorandum: Contents, Filing, and Rules

A pretrial memorandum is a document each side files before trial that previews, in a structured way, the facts it intends to prove, the legal issues in dispute, the witnesses it will call, and the exhibits it will offer. In federal civil cases, the authority for judges to require one comes from Federal Rule of Civil Procedure 16, which lets courts manage pretrial preparation and shape the trial plan.¹ The exact format varies by court and by judge, so the local rules and the assigned judge’s standing order drive what yours needs to look like.

What Goes Inside a Pretrial Memorandum

There is no universal template, but most memorandums combine the same core sections. The specifics depend on local rules, the judge’s preferences, and whether the case is civil or criminal.

Statement of Facts and Legal Issues

Most memorandums open with a factual summary. Some courts want each party to present its own version of events. Others require the parties to work together on a single statement separating undisputed facts from contested ones. A federal bankruptcy court in the Western District of New York, for example, requires separate lists of undisputed and disputed material facts along with the case’s procedural history.² In criminal cases, courts may instead ask for a neutral case statement suitable for reading to the jury during selection.³

The legal-issues section identifies the statutes and cases each side relies on and explains how they apply to the disputed facts. In bench trials, parties may also submit proposed findings of fact and conclusions of law telling the judge what to decide and why.²

Witness and Exhibit Lists

The memorandum lists every witness the party plans to call, with a short summary of expected testimony and an estimate of how long each will take on the stand. Courts normally expect you to separate witnesses who will definitely testify from those you may call depending on how trial unfolds.³

Exhibit lists work the same way. Each document, photograph, or other item gets a number or letter, a short description, and a relevance statement.³ Before filing, the parties are expected to confer about which exhibits can be admitted by agreement and which draw objections.

Stipulations

Stipulations are facts both sides agree are true. Once stipulated, they don’t need to be proven at trial. Common examples include the authenticity of documents, the qualifications of expert witnesses, and background details like dates and locations that nobody actually contests.

Jury Instructions and Trial Logistics

In jury trials, the memorandum typically includes proposed jury instructions — the legal principles the judge will read to jurors before deliberation. The parties meet beforehand to try to agree on them, and disagreements get flagged for the judge.³ Many courts also expect an estimated trial length, proposed verdict forms, and any motions in limine, which are requests to exclude certain evidence before trial begins.

When It’s Filed and What the Judge Does With It

A pretrial memorandum is normally filed after discovery closes but before trial starts. Rule 16 lets courts set the schedule for exchanging pretrial briefs and for further conferences and trial dates.¹ Some courts want it weeks in advance; others set the deadline just days before the final pretrial conference.

Once filed, it becomes the centerpiece of the final pretrial conference. Rule 16(e) requires that conference to be held as close to the start of trial as is reasonable, and at least one attorney who will actually try the case for each party must attend. A party without a lawyer must appear in person.¹ The judge and attorneys use the time to work through trial logistics, resolve evidentiary disputes, and explore settlement.

After the conference, the judge issues a pretrial order. This is where the memorandum’s practical weight shows up: the order typically incorporates the stipulations, witness lists, exhibit lists, and legal issues from the memorandums into a binding document that controls the rest of the case. Under Rule 16(e), the court can modify that order only to prevent manifest injustice.¹ Leave a witness off your list or omit an exhibit, and you may not be allowed to use them at trial.

Joint Filing or Separate Filings

Some courts require each party to file its own memorandum. Others require a single joint pretrial statement. Rule 16 gives judges broad authority over the form and content of pretrial submissions without mandating one approach.¹ Local rules or the judge’s standing order decide which format applies in your case.

A joint statement forces cooperation. It typically asks the parties to agree on undisputed facts, identify contested issues, and present competing positions side by side in one document. Separate filings give each side more room to frame the case on its own terms, but they can produce overlapping or contradictory presentations the judge has to reconcile.

Local Rules and the Judge’s Standing Order Control the Details

The biggest mistake with a pretrial memorandum is assuming it looks the same everywhere. Federal courts, state courts, bankruptcy courts, and specialized courts all set their own requirements, and individual judges within the same court often maintain standing orders that add to or change what the memorandum must include.

The U.S. Tax Court, for example, requires petitioners in regular cases to file a pretrial memorandum using a specific form attached to the court’s Standing Pretrial Order. In small tax cases, called S cases, filing one is encouraged but not required.⁴ Some courts cap the length of pretrial memorandums; others specify font, margins, and other formatting details. The only reliable way to know what your court expects is to pull the local rules for that court and check the assigned judge’s individual practice requirements on the court’s website.

Consequences of Not Filing or Filing Poorly

Skipping the pretrial memorandum, or filing one that’s incomplete, can trigger serious sanctions. Under Rule 16(f), a court can sanction a party that fails to appear at a pretrial conference, shows up substantially unprepared, or disobeys a pretrial order. Available sanctions range from barring a party from presenting certain evidence to striking claims or defenses entirely, and in extreme cases entering default judgment.¹

On top of those penalties, the court must order the noncompliant party, its attorney, or both to pay the other side’s reasonable expenses, including attorney’s fees, caused by the failure, unless the noncompliance was substantially justified or an award would be unjust.¹ Courts don’t treat these deadlines as suggestions. A missing or sloppy memorandum tells the judge you aren’t ready for trial, and that impression is hard to undo.

1
Legal Information Institute. Federal Rules of Civil Procedure Rule 16 – Pretrial Conferences; Scheduling; Management
2
United States Bankruptcy Court, Western District of New York. Sample Pre-Trial Statements Requirements and Format
3
United States District Court Northern District of Illinois. Pretrial Memorandum and Procedures for Criminal Cases
4
United States Tax Court. Guidance for Petitioners: Things That Occur Before Trial