Earlier this year, the Civil Rules Committee amended Rule 53.08(1) of the Rules of Civil Procedure, which had previously provided for flexibility for counsel in producing expert reports at pre-trial conferences[1]. The flexibility built into the old Rule was creating limitations for the effectiveness of pre-trial conferences as counsel would frequently not have expert reports completed at the time the conferences took place, limiting the court’s ability to work towards early settlement. Furthermore, the flexibility often resulted in adjournments of fixed trial dates as the required evidence, if not available at pre-trial conferences, was often not available at the time of the trial. The amendment to the Rule aims to strengthen the value of the pre-trial conference and avoid costly trial adjournments in both time and court resources.
Under the old Rule, if you did not have an expert report completed and served within the required time frame (not less than 90 days before the pre-trial conference or in the case of a responding report, not less than 60 days before the pre-trial conference[2]) prior to your pre-trial conference, Rule 53.08(1) directed the court that “leave shall be granted on such terms as are just and with an adjournment if necessary unless to do so will cause prejudice to the opposite party or undue delay in the conduct of the trial."
As a result, either one or both parties in a dispute would often attend pre-trial conferences without expert reports in hand, limiting the value of the conference for their clients and the courts.
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