RULE 166. PRE-TRIAL CONFERENCE
In an appropriate action, to assist in the disposition of the case without undue expense or burden to
the parties, the court may in its discretion direct the attorneys for the parties and the parties or their
duly authorized agents to appear before it for a conference to consider:
(a) All pending dilatory pleas, motions and exceptions;
(b) The necessity or desirability of amendments to the pleadings;
(c) A discovery schedule;
(d) Requiring written statements of the parties' contentions;
(e) Contested issues of fact and the simplification of the issues;
(f) The possibility of obtaining stipulations of fact;
(g) The identification of legal matters to be ruled on or decided by the court;
(h) The exchange of a list of direct fact witnesses, other than rebuttal or impeaching
witnesses the necessity of whose testimony cannot reasonably be anticipated before
the time of trial, who will be called to testify at trial, stating their address and
telephone number, and the subject of the testimony of each such witness;
(i) The exchange of a list of expert witnesses who will be called to testify at trial, stating
their address and telephone number, and the subject of the testimony and opinions
that will be proffered by each expert witness;
(j) Agreed applicable propositions of law and contested issues of law;
(k) Proposed jury charge questions, instructions, and definitions for a jury case or
proposed findings of fact and conclusions of law for a nonjury case;
(l ) The marking and exchanging of all exhibits that any party may use at trial and
stipulation to the authenticity and admissibility of exhibits to be used at trial;
(m) Written trial objections to the opposite party's exhibits, stating the basis for each
objection;
(n) The advisability of a preliminary reference of issues to a master or auditor for
findings to be used as evidence when the trial is to be by jury;
(o) The settlement of the case, and to aid such consideration, the court may encourage
settlement;
(p) Such other matters as may aid in the disposition of the action.
The court shall make an order which recites the action taken at the pretrial conference, the
amendments allowed to the pleadings, the time within which same may be filed, and the agreements
made by the parties as to any of the matters considered, and which limits the issues for trial to those
not disposed of by admissions, agreements of counsel, or rulings of the court; and such order when
issued shall control the subsequent course of the action, unless modified at the trial to prevent
manifest injustice. The court in its discretion may establish by rule a pretrial calendar on which
actions may be placed for consideration as above provided and may either confine the calendar to
jury actions or extend it to all actions.
Pretrial proceedings in multidistrict litigation may also be governed by Rules 11 and 13 of the Rules
of Judicial Administration.
RULE 166a. SUMMARY JUDGMENT
(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to
obtain a declaratory judgment may, at any time after the adverse party has appeared or
answered, move with or without supporting affidavits for a summary judgment in his favor
upon all or any part thereof. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as to amount of
damages.
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is
asserted or a declaratory judgment is sought may, at any time, move with or without
supporting affidavits for a summary judgment in his favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the
specific grounds therefor. Except on leave of court, with notice to opposing counsel, the
motion and any supporting affidavits shall be filed and served at least twenty-one days before
the time specified for hearing. Except on leave of court, the adverse party, not later than
seven days prior to the day of hearing may file and serve opposing affidavits or other written
response. No oral testimony shall be received at the hearing. The judgment sought shall be
rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other discovery
responses referenced or set forth in the motion or response, and (ii) the pleadings,
admissions, affidavits, stipulations of the parties, and authenticated or certified public
records, if any, on file at the time of the hearing, or filed thereafter and before judgment with
permission of the court, show that, except as to the amount of damages, there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law
on the issues expressly set out in the motion or in an answer or any other response. Issues not
expressly presented to the trial court by written motion, answer or other response shall not
be considered on appeal as grounds for reversal. A summary judgment may be based on
uncontroverted testimonial evidence of an interested witness, or of an expert witness as to
subject matter concerning which the trier of fact must be guided solely by the opinion
testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free
from contradictions and inconsistencies, and could have been readily controverted.
(d) Appendices, References and Other Use of Discovery Not Otherwise on File. Discovery
products not on file with the clerk may be used as summary judgment evidence if copies of
the material, appendices containing the evidence, or a notice containing specific references
to the discovery or specific references to other instruments, are filed and served on all parties
together with a statement of intent to use the specified discovery as summary judgment
proofs: (i) at least twenty-one days before the hearing if such proofs are to be used to support
the summary judgment; or (ii) at least seven days before the hearing if such proofs are to be
used to oppose the summary judgment.
(e) Case Not Fully Adjudicated on Motion. If summary judgment is not rendered upon the
whole case or for all the relief asked and a trial is necessary, the judge may at the hearing
examine the pleadings and the evidence on file, interrogate counsel, ascertain what material
fact issues exist and make an order specifying the facts that are established as a matter of law,
and directing such further proceedings in the action as are just.
(f) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made
on personal knowledge, shall set forth such facts as would be admissible in evidence, and
shall show affirmatively that the affiant is competent to testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be
attached thereto or served therewith. The court may permit affidavits to be supplemented or
opposed by depositions or by further affidavits. Defects in the form of affidavits or
attachments will not be grounds for reversal unless specifically pointed out by objection by
an opposing party with opportunity, but refusal, to amend.
(g) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing
the motion that he cannot for reasons stated present by affidavit facts essential to justify his
opposition, the court may refuse the application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be taken or discovery to be had or may
make such other order as is just.
(h) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time
that any of the affidavits presented pursuant to this rule are presented in bad faith or solely
for the purpose of delay, the court shall forthwith order the party employing them to pay to
the other party the amount of the reasonable expenses which the filing of the affidavits
caused him to incur, including reasonable attorney's fees, and any offending party or attorney
may be adjudged guilty of contempt.
(i) No-Evidence Motion. After adequate time for discovery, a party without presenting
summary judgment evidence may move for summary judgment on the ground that there is
no evidence of one or more essential elements of a claim or defense on which an adverse
party would have the burden of proof at trial. The motion must state the elements as to which
there is no evidence. The court must grant the motion unless the respondent produces
summary judgment evidence raising a genuine issue of material fact.
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