Massachusetts Pre-Trial Memorandum: Contents, Filing, and Sample

A Massachusetts pre-trial memorandum is a joint document that both sides in a Superior Court civil case must file at least three business days before the final pre-trial conference. Its contents are governed by Massachusetts Rule of Civil Procedure 16 and, in detail, by Superior Court Standing Order 1-88, Appendix B.¹ The document has to cover ten specific categories, and omissions carry consequences: a witness you forget to list can be barred from testifying at trial.²

The word “joint” is not optional. Counsel for both sides must confer and combine their positions into a single filing. Where the parties disagree on a point, each side puts its own statement inside the relevant section rather than filing separately.

If your case is in District Court or another department, check that department’s own standing orders. What follows applies to Superior Court.

What the Memorandum Must Contain for a Jury Trial

Standing Order 1-88 Appendix B lists ten categories of required content:²

A statement of agreed facts, formatted so it can be submitted as a trial exhibit.
A brief statement from each party describing what it expects the evidence to show.
An agreed case description to be read to prospective jurors during impanelment.
All significant legal issues (including evidentiary disputes), each party’s position, and supporting authorities. Copies of authorities must be attached, except for reported Supreme Judicial Court and Appeals Court decisions.
The name and address of each fact witness for each party.
Detailed expert witness disclosures (see below).
Estimated trial length, specified in half days or full days.
An itemization of all special or liquidated damages claimed.
A written certification that counsel have discussed settlement and whether the case is suited for mediation or another form of alternative dispute resolution.
A statement on whether the parties have consulted about case-management options under Superior Court Rule 20(h)-(i), and which provisions are agreed on or still under consideration.

One point trips people up: for fact witnesses, only the name and address are required. You do not need to summarize what a fact witness will say. Substantive disclosures are reserved for experts.

Expert Witness Disclosures

For every expert, the memorandum must include:²

Full name, address, and qualifications.
The subject matter on which the expert will testify.
The substance of all facts and opinions the expert will offer.
A detailed summary of the grounds for each opinion.

Two procedural questions belong in this section as well: whether any party intends to conduct an expert deposition under Mass. R. Civ. P. 26(b)(4), and whether any party plans to file a Daubert-Lanigan motion challenging an expert’s admissibility. If such a challenge is anticipated, state when the motion will be filed and the anticipated basis.²

Bench Trials

For a jury-waived case, the memorandum includes the same items with one exception: the agreed case description for impanelment is not required, since there is no jury selection.²

There is a further shortcut. If all parties agree to a bench trial and waive the right to detailed written findings under Superior Court Rule 20(h), the memorandum can also skip the agreed facts, the evidence summaries, and the case description (items one through three), and no one has to file proposed findings of fact. Without that waiver, proposed findings of fact remain a separate filing obligation.²

Exhibit Lists Are Filed Separately

The exhibit list does not go in the pre-trial memorandum. It is a separate filing due no later than five business days before the scheduled trial.²

To prepare it, counsel from both sides meet and review every exhibit and visual aid either party plans to use, then sort everything into two groups: stipulated exhibits both sides agree are admissible, which get pre-marked and introduced at the start of trial, and contested exhibits where at least one party reserves the right to object.²

Formatting, E-Filing, and Service

Standing Order 1-88 does not prescribe a particular typeface or font size. Most practitioners use a 12-point professional font such as Times New Roman. Check the presiding judge’s individual session rules for any additional requirements on font, page limits, or presentation.

Supreme Judicial Court Rule 2:02 sets general formatting standards for papers filed with the court: legibly typed, double-spaced, on standard letter-sized paper, with a left margin of at least one and three-quarters inches and a right margin of at least one inch. Documents that fail to meet these standards can be struck on motion.³

The first page needs a caption identifying the court, the division, the full case name, and the docket number. The final page needs the filing attorney’s signature, Board of Bar Overseers (BBO) number, and contact information.

Electronic filing is governed by Superior Court Standing Order 1-23. All e-filed text documents must be in searchable PDF format. Convert directly from a word processor rather than printing and scanning. Any scanned document must be made searchable using optical character recognition at a resolution of at least 200 dots per inch, in black and white. No PDF may be locked or password-protected.⁴

Serve the memorandum on all other parties when you file it. For parties registered with the e-filing system, electronic service through the system satisfies the requirement. For parties who are not registered, use conventional methods such as hand delivery or mail. Include a certificate of service with the date and method of delivery.

Consequences of Omissions

The clearest penalty in Standing Order 1-88 applies to witnesses. If you fail to list a witness in the pre-trial memorandum, the court can bar that witness from testifying at trial. The only exceptions are when the need for the witness could not reasonably have been anticipated beforehand, or when other good cause exists.²

Rule 16 provides that the pre-trial order “controls the subsequent course of the action” unless modified to prevent manifest injustice.¹ A memorandum that leaves out required information can produce a pre-trial order that restricts your ability to present certain evidence or raise certain arguments later. Courts also have inherent authority to impose additional sanctions for noncompliance, which can include awarding attorney’s fees to the opposing party.

Sample Outline for a Jury Trial

The following tracks the structure required by Standing Order 1-88 Appendix B.² For a bench trial, drop Section III. If all parties waive detailed written findings under Rule 20(h), Sections I through III and proposed findings of fact can also be dropped.

Caption. Court name, division, case name, and docket number.

Section I. Agreed Facts. Undisputed facts, formatted so the court can admit the statement as a trial exhibit.

Section II. Each Party’s Evidence Summary. A short statement from the plaintiff describing what the evidence will show, followed by the defendant’s statement. Each party drafts its own portion.

Section III. Case Description for Impanelment. An agreed summary read aloud to prospective jurors during selection. Jury trials only.

Section IV. Legal Issues and Authorities. All significant legal and evidentiary issues, each party’s position, and supporting case law. Attach copies of cited authorities except reported SJC and Appeals Court decisions.

Section V. Fact Witness List. Name and address of each fact witness, organized by party.

Section VI. Expert Witness Disclosures. For each expert: name, address, qualifications, subject matter, the substance of all opinions and facts, and a detailed summary of the grounds for each opinion. Include statements on any pending expert deposition requests and any planned Daubert-Lanigan challenges.

Section VII. Estimated Length of Trial. Joint estimate, specifying half days or full days.

Section VIII. Damages Itemization. Line-item breakdown of all special or liquidated damages claimed.

Section IX. Settlement and ADR Certification. Certification that all counsel have discussed settlement and whether the case is suited for mediation or other alternative dispute resolution.

Section X. Case-Management Provisions. Statement on whether the parties have consulted about options under Superior Court Rule 20(h)-(i) and which provisions, if any, are agreed on.

Signature Block. Filing attorney’s signature, BBO number, address, phone number, and email.