In the 12 years I have been on the superior court, no matter has more frequently been the subject of discussion at judges' meetings than that of the Rule 62 preliminary pretrial conference. The basic issues that have been debated over and over again are whether it is really necessary to have these conferences and whether they serve a useful purpose. What has prompted the continuing debate are the strongly-held yet widely divergent views on this subject held by members of the bench and bar.

Superior Court Rule 62 provides that, unless otherwise ordered by the court, a structuring conference shall be held in every civil and equity case entered on the court's docket. In some counties which use a differentiated case management system, structuring conferences are not held for certain categories of very simple cases (e.g. collection actions). Instead, in these cases, the clerk merely issues a scheduling order which establishes various deadlines and sets a trial date. There are also other categories of cases (mostly administrative appeals) in which structuring conferences are not routinely scheduled.

For the vast majority of cases in which a structuring conference is held, the conference normally is scheduled sometime between 60 and 120 days after the case is filed. Counsel or pro se parties are required to attend the structuring conference. Ten days prior to the conference each party must file a summary statement outlining the claims, defenses and legal issues likely to arise in the case.

The purpose of the structuring conference is to familiarize the court with the case, establish a discovery schedule and dates for trial and alternative dispute resolution (ADR), discuss issues or motions that may be presented to the court for resolution, and explore the possibilities of settlement. Following the conference, the court will issue a scheduling order confirming the agreements reached or rulings made at the conference.

Some judges and lawyers take the view that the preliminary structuring conference requiring the personal attendance of counsel or of pro se parties is largely a waste of time. They assert that more often than not, particularly in cases where there is counsel on both sides, the parties are able to agree in advance on a discovery schedule and trial and ADR dates. They further argue that it is almost always too early in the case (discovery probably not even having begun) to have any worthwhile discussion of settlement. As a result, the conferences often are little more than a five-minute pro forma meetings with the judge that just as easily - and at considerable savings of time and expense - could be handled either by means of a telephone conference between counsel and the court or, even more efficiently, by the parties simply submitting an agreed-upon scheduling stipulation to the court for its approval.

Other judges and lawyers hold an equally strong view that requiring the personal attendance of counsel or pro se parties at the preliminary structuring conference serves important purposes. The proponents of this view argue that requiring personal attendance compels the lawyers or parties to focus upon the case at an earlier stage than would otherwise occur, and also requires that they make more realistic assessments of how long discovery will take and when the case can be scheduled for trial. Adherents of this view assert that it is far more difficult to later claim mistake or changed circumstances as a basis for altering the discovery schedule or seeking a continuance of trial when the lawyer or litigant committed to the schedule in person before the judge than when he or she merely filed a form with the clerk's office.

Moreover, a number of judges and lawyers dispute the notion that there is little chance for having productive settlement discussions at the initial structuring conference. In fact, several senior members of the superior court bench have indicated that they have had considerable success in resolving cases at the Rule 62 conference, especially in cases involving pro se parties. (This may result, at least in part, from the fact that the judge often will be able to debunk a pro se litigant's unreasonable expectations about what can or cannot be achieved through the litigation process.)

The superior court judges again reviewed the Rule 62 issue at their meeting in early December 2004. As might be expected, those judges who are more adept at fostering settlement and/or are more inclined to do so are generally the ones who feel most strongly that the present format of the rule should remain in place, while the judges with less confidence in their settlement abilities or who otherwise feel constrained to take a less active role in settlement are more amenable to changing the rule's requirement of personal attendance at the structuring conference.

Following vigorous discussion, it was the consensus of the judges that no changes should be made to the rule, but that litigants who have reached agreement on all scheduling-related issues should be encouraged to move to hold the structuring conference telephonically as authorized by Superior Court Administrative Order 32.

On September 2, 1997, then Superior Court Chief Justice Joseph P. Nadeau issued Superior Court Administrative Order 24. This administrative order applied only to cases filed in the Grafton County Superior Court. It provides authority for holding both preliminary pretrial conferences and non-evidentiary motion hearings telephonically in cases where all parties agree to the procedure. A request for a telephonic conference or hearing must be made by motion (either a separately filed motion or a separate prayer for use of the telephone procedure included within the substantive motion), which must indicate that all parties consent to a telephonic hearing. A request for a telephonic structuring conference must be made no later than 60 days following the return date of the action. Telephonic hearings or conferences can be held with or without a record as the parties or the court may desire (although it must be noted that, at present, providing a record for in-chambers hearings may be difficult in some locations). The party filing the request for a telephonic hearing or conference is responsible for making the necessary arrangements for the conference (including providing the court with conference call numbers and codes, in cases where a commercial telephone service is utilized). Telephonic hearings or conferences may not exceed 15 minutes in duration.

Following an approximately two-year trial period during which the above procedures were used with great success in Grafton County, on May 27, 1999, Chief Justice Nadeau issued Administrative Order 32. This order, which became effective July 1, 1999, extended the availability of telephonic preliminary structuring conferences to all superior courts throughout New Hampshire.

Administrative Order 32 also imposed the following additional requirements where the telephonic procedure is to be used: (1) summary statements and either proposed orders from the parties or a stipulation must be filed prior to the conference date; (2) the hearing must be conducted by trial counsel (if counsel has been retained), who must have authority to address all issues including settlement; and (3) counsel or pro se parties must have their calendars available so that future events, including the trial date, can be scheduled with certainty.

These administrative orders provide a ready mechanism for practitioners to avoid the necessity of personally attending the preliminary structuring conference in many - if not most - routine cases where the parties are in agreement on scheduling issues and where neither side believes there is any real likelihood of productive settlement discussions with the judge. The use of the telephone procedure would seem particularly apropos in cases where counsel or pro se parties would have to travel long distances to appear at the courthouse.

Despite their usefulness in reducing time and expense to counsel and litigants, my perception is that the telephonic conference process is greatly under-utilized. Of course, because of the disparate views among the judges, there undoubtedly will be situations in which a judge will deny a request for a telephonic conference even when all parties agree to the use of this procedure. Lawyers should not be discouraged if and when this happens, since, as noted earlier, judges who insist on your personal presence at the conference presumably are the ones who are most adept at fostering early settlements.

In closing, I encourage members of the bar to review the above administrative orders and to avail themselves of the advantages of telephonic structuring conferences in all cases where this procedure is appropriate.

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