Creating the Effective Pretrial Stipulation Under Civil Case Management
Imagine that your legal assistant reminds you that the deadline is fast approaching to file a joint pretrial stipulation in your upcoming jury trial. You have prepared several in the past in similar cases, so you retrieve an old form, make a few changes to align with the named parties in the case, and forward it to opposing counsel for review. The next day, you receive minor revisions. You finalize the document, circulate it for signature, and e-file it. Three months later, you are in a jury trial. During the charge conference, you are surprised to see that you have stipulated to applicability of the version of a statute that predated your incident. In the joint pretrial stipulation, you have also included a proposed jury instruction conforming to the old version of the statute. Opposing counsel, whose client is in a better position under the old version, argues that she prepared her case understanding that you agreed to the applicability of the old version. She argues that you should be bound by your agreement. You respond that it was clearly a mistake. You are incredulous when the trial court enforces it.
In the past few years, Florida state trial courts have become heavily involved in on-hands case management in civil cases. Differentiated case management has now become the norm as trial courts strive to efficiently and expeditiously resolve cases while providing the parties their day in court. An integral part of effective case management is to encourage parties to reach stipulations on facts and issues that are not disputed, as well as agreements concerning the matters to be tried. Stipulations are an increasingly important aspect of the entire litigation process. Indeed, one Florida appellate court has referred to the “tremendous efficacy” of the pretrial stipulation, “a powerful blueprint that fully enables a well-run and fair trial.”[1] Each of Florida’s 20 judicial circuits has at least one administrative order outlining the differentiated case management process, and most require parties to submit stipulations that will govern the trial of the case. The circuits refer to these pretrial agreements by various names, including joint pretrial stipulations, mutual pretrial stipulations, or simply as pretrial stipulations.
However, across the state, courts facing stringent case management requirements are more frequently called upon to deal with the enforcement of these agreements. Moreover, many stipulations are, frankly, often not well thought out, but are made in a rush to comply with pretrial requirements. As a result, parties frequently ignore their own filed pretrial stipulations, often at their peril.[2] This column considers the history of pretrial stipulations, their enforceability, and the possibility of amending or avoiding them.
Florida’s Stipulation History
In 1887, the Florida Supreme Court issued a decision regarding the rights of a railroad company to take land during the construction of a new line. The pertinent issue on appeal was an agreement the parties had purportedly reached about when the trial would be held. The agreement between the attorneys, however, was made verbally and not memorialized of record. In response to this conflict, the court stated,
no agreement between parties or counsel, as to a trial of a cause, is of any effect before the court, unless the evidence of it is in writing, and subscribed by the party (or his attorney) against whom it is alleged, or is made in open court, and noted by the judge in his minutes.[3]
This decision suggests that if these agreements are to have effect, they must be properly submitted of record. Importantly, however, the court did not state that a stipulation would not be enforced. In fact, the court ruled the exact opposite, but the court required that the stipulations be submitted in writing or made on the record in open court. This early decision demonstrates that the Florida Supreme Court understood the powerful effect of these stipulations: The trial courts should not accept or enforce them unless they are of record.
The rationale for encouraging pretrial stipulations may be obvious. In an often quoted Florida Supreme Court case issued almost four decades later, the court recognized the importance of pretrial stipulations: the “making of such stipulations… should be encouraged rather than discouraged, to facilitate the progress of causes and save the time of the courts.”[4] A common justification for favoring stipulations is the efficiency of the entire trial process.[5] This is because stipulations are designed to “simplify, shorten or settle litigation and save costs to the parties, and the time of the Court.”[6] In short, agreements to agree should make the process easier for everyone.
The Florida Supreme Court considered pretrial stipulations once again in Esch v. Forster, 123 Fla. 905, 168 So. 229 (1936). Here, the parties stipulated to the disputed issues. After an adverse result, the plaintiff argued on appeal that the trial court should have let the plaintiff argue a different “theory” of the case, rather than just the stipulated “issue.” The court disagreed, finding that the record showed that the “agreement was entered into by the parties in good faith,” and without any evidence of “fraud, misrepresentation, or mistake.” The court held that when parties stipulate to the issue to be tried, such a stipulation “amounts to a binding waiver and elimination of all issues not included.”[7]
We fast-forward several decades later. In the ensuing years, the issue of pretrial stipulations has been addressed numerous times. Notwithstanding seemingly clear caselaw supporting the enforceability of these stipulations, the issue came before the Fourth District Court of Appeal more than nine decades after Esch in the case of Central Square Tarragon LLC v. Great Divide Insurance Company, 82 So. 3d 911 (Fla. 4th DCA 2011). In this case, the parties filed a joint pretrial stipulation limiting the issues to be tried to the amount of damages to be paid by the insurer. Further, the parties stipulated that the insured had assigned to plaintiff the insured’s rights to the proceeds. Nevertheless, at the close of evidence the insurer argued it should be entitled to a directed verdict because the plaintiff failed to produce proof of an assignment. Notwithstanding the parties’ pretrial stipulation precisely on this point, the trial court allowed the verdict form to contain a question requiring the jury to find whether a valid assignment existed. The appellate court found this clear error, reminding the trial court and the parties that pretrial stipulations are to be strictly enforced. Further, the appellate court viewed this as a matter of “integrity,” concluding that insurer’s counsel had “abandoned [his] role” as an officer of the court by failing to honor the stipulation and instead engaging in gamesmanship.[8]
The requirement of a pretrial stipulation is not without some criticism. Some claim the only matters of agreement rarely reach beyond “minutiae,” and as a result are not meaningful.[9] This criticism, however, falls flat. Even if the parties stipulate only to minor matters, these agreements can assist the trial court to avoid getting bogged down with housekeeping issues and instead focus on material matters in play. This should result in a more efficient litigation process. Further, and perhaps more importantly, the process of preparing a joint pretrial stipulation assists the parties in taking a realistic view of the case, often moving the parties forward to settlement.
As seen in the discussed cases, pretrial stipulations can delineate not only the facts without dispute, but also the precise legal issues to be addressed by the court. For instance, the process of preparing a joint pretrial stipulation can often lead the parties to conclude that the only true dispute is one of law, thus, eliminating the need to put the case on a jury trial calendar. They can further require that the parties advise who their witnesses will be,[10] what exhibits will be used, and what evidentiary objections the parties have to exhibit. They can also mandate that the parties submit proposed jury instructions and a verdict form, a substantial time-saving exercise for the court. The increasing civil caseload in Florida courts necessitates efforts to streamline litigation, and requiring parties to submit pretrial stipulations certainly has a role to that end. Stipulations have long been a dimension of litigation in Florida, and recent cases certainly show no sign of bucking that trend.[11]
Enforceability
Stated simply, “stipulations of the parties are normally binding.”[12] When parties agree to facts of the case or to issues to be tried, those agreements will be strictly enforced.[13] For example, when a stipulation limits what can be argued during trial, as in Central Square Tarragon, courts look at the stipulation as a binding waiver and elimination of all issues not included.[14] Moreover, stipulations are not limited to the trial of the case — they may also be used to address pretrial preparation. For instance, when an agreement extends the time attorneys may take depositions, it is enforceable against both parties.[15] Parties can even stipulate to the law that will be applied to the determination of the case, even if the particular statute is no longer in effect.[16] Although stipulations may seemingly mirror contracts in their mechanics (a meeting of the minds between two parties), they are enforceable even though the agreement may lack consideration.[17] A stipulation binds the parties, as well as the trial court, any appellate court addressing the case,[18] and any retrial of the case.[19]
On occasion, the parties may disagree on interpretation. Unclear or vague stipulations may not be enforced. In McGoey v. State, 739 So. 2d 31 (Fla. 3d DCA 1999), one attorney believed a stipulation barred only specific statements a person made, while opposing counsel believed all statements were barred. The appellate court found the stipulation unclear and too vague to be enforced, but in light of the confusion, the appellant was entitled to a new trial.[20] However, perfect clarity is not required. Stipulations “are not to be construed technically, but rather in accordance with their spirit and in furtherance of justice.”[21] They will be interpreted “in the light of the circumstances surrounding the parties, and in view of the result that they were attempting to accomplish.”[22] As an example, in Travelers Insurance Company v. VES Service Company, 576 So. 2d 1349 (Fla. 1st DCA 1991), the appellate court ruled that the pretrial stipulation was an admission to a set of facts, not a complete concession of liability, as it would not have made sense for the defendant to concede liability in that case.[23] When it comes to interpretation, courts apply “the same principles for interpreting written contracts” even though a stipulation does not require all the elements of a contract to be enforceable.[24] Further, the court will only look at the intentions of the parties if the language is unclear.
Amending or Withdrawing a Stipulation
When parties seek to avoid a stipulation, they face a significant hurdle in getting over strict enforcement. A party cannot unilaterally nullify a stipulation.[25] The Florida Supreme Court has referred to these agreements as solemn and binding.[26] Further, trial court judges cannot simply exercise mere discretion in deciding whether to abandon or amend a stipulation.[27] Nevertheless, the hurdle is not necessarily insurmountable.
Florida law recognizes circumstances that may warrant rescission or amendment of a stipulation. First, the request must be made by motion with supporting affidavit.[28] The standard is one of good cause, and the request must be “seasonably and properly brought to the Court’s attention.”[29] Further, in looking at good cause, the court must focus on whether withdrawing the stipulation is necessary to prevent injustice.[30] The Florida Supreme Court has held, in essence, that good cause to avoid a pretrial stipulation arises only upon “fraud, overreaching, misrepresentation or withholding facts by the adversary or some such element that would render the agreement void.”[31] A later decision noted that stipulations made under duress or mistake can be amended or withdrawn.[32] Seeking to withdraw a factual stipulation based on mistake would likely require the party to show that facts conflicting with the agreement were later discovered,[33] and that the opposing party would not be prejudiced.[34] If a party believes a stipulation entered was made via fraud, duress, or mistake, the party “must make a reasonable motion to withdraw the stipulation supported by an affidavit showing good cause.”[35] Courts have also stated that they will not enforce stipulations if they are bad public policy or contrary to “good morals.”[36]
As noted, one other situation in which a court will not enforce a stipulation is if the intentions of the parties are not clear. In McGoey, the parties interpreted the stipulation differently. The court in that case found that good cause existed not to enforce the stipulation because there was no “meeting of the minds between the parties.”[37] Also similar to contract law, “it is never a court’s function to rewrite the terms of an agreement to make it more reasonable.”[38] However, regardless of the intentions of the parties, a trial court cannot enforce a stipulation when the court does not have subject matter jurisdiction over the matter. That being said, facts probative of jurisdiction may be stipulated.[39]
Unfortunately, many attorneys wait until the eve of trial, or even at the trial itself, to seek to renege.[40] Certainly, the parties that wait until this point face a difficult challenge in meeting the requirement of seasonably bringing the matter before the court. Often, parties have new attorneys come into a case as trial counsel, and these attorneys bring a change in trial strategy. A change in trial strategy or trial counsel, however, is not good cause to avoid a pretrial stipulation.[41] Neither is failure of counsel to read the stipulation before signing it.[42]
Why This Matters
Decades ago, the Florida Supreme Court addressed the philosophy behind the enforcement of pretrial agreements in Smith: “[i]f such stipulations, when reasonable and made in good faith, are not respected and enforced by the courts, counsel and litigants would hesitate to enter into them.”[43] Moreover, effective case management requires that parties bring before the court only those issues that truly need resolution. Attorneys too often draft and submit a joint pretrial stipulation with the regard of a necessary but unimportant exercise. Trial courts increasingly face the incredulity of parties when the parties attempt to argue that they did not mean to agree to a particular fact or issue.
Prior to trial, parties have numerous opportunities to amicably resolve the case. By the time a case gets before a jury, the parties have engaged in a substantial amount of work — meeting with the client, drafting pleadings, gathering evidence, engaging in discovery, and preparing for and attending hearings. Stipulating to undisputed facts and issues to be tried certainly can reduce that workload, particularly if done consistently as a matter of good practice. But it is also important to look at this from the court’s perspective. Judicial efficiency may be the best argument for requiring a pretrial stipulation, as trial courts are expected to handle thousands of cases each year. Hearing time should be used for those matters that truly require the judge’s attention. Attorneys should make well-considered pretrial stipulations, articulated clearly and properly as required by the operative pretrial order. Doing so should hopefully make the litigation process smoother for everyone.
[1] Palm Beach Polo Holdings v. Broward Marine, Inc., 174 So. 3d 1037, 1038-39 (Fla. 4th DCA 2015).
[2] See Dunscombe v. Smith, 139 Fla. 497, 504, 190 So. 796, 799 (1939) (admonishing counsel not to seek to “ignore or attempt to evade” pretrial stipulations without “formal motion”).
[3] Palatka & I.R. Ry. Co. v. State, 23 Fla. 546, 550, 3 So. 158, 160 (1887).
[4] Smith v. Smith, 90 Fla. 824, 833, 107 So. 257, 260 (1925).
[5] See generally Esch v. Forster, 123 Fla. 905, 911-12, 168 So. 229, 231-32 (1936). See also Palm Beach Polo Holdings,174 So. 3d at 1039.
[6] Dunscombe, 139 Fla. at 505, 190 So. at 759. See also Dortch v. State, 137 So. 3d 1173, 1174 (Fla. 1st DCA 2014) (when a stipulation was entered into to “expedite the trial of the cause”).
[7] Esch, 123 Fla. at 911, 168 So. at 231.
[8] Central Square Terragon, 82 So. 3d at 913-15.
[9] See, e.g., Fed. R. Civ. P. 16 (Notes of Advisory Comm. on Rules — 1983 Amendment).
[10] Palm Beach Polo, 174 So. 3d at 1038 (noting the benefit of a pretrial stipulation designating witnesses).
[11] Dania Beach Boat Club Condominium Association, Inc. v. Forcier, 290 So. 3d 99, 101 (Fla. 4th DCA 2020); 2K S. Beach Hotel, LLC v. Mustelier, 291 So. 3d 158, 160-61 (Fla. 1st DCA 2020); LE Publications, Inc. v. Kohl, 298 So. 3d 642, 646, 646 n.1 (Fla. 4th DCA 2020); Palm Beach Polo, 174 So. 3d at 1039 (where the court held stipulations “should be strictly enforced”).
[12] Spitzer v. Bartlett Bros. Roofing, 437 So. 2d 758, 760 (Fla. 1st DCA 1983).
[13] Palm Beach Polo, 174 So. 3d at 1039; Esch, 123 Fla. at 911, 168 So. at 231; Johnson v. Johnson, 663 So. 2d 663, 665 (Fla. 2d DCA 1995).
[14] Central Square Terragon, 82 So. 3d at 914. See also Broche v. Cohn, 987 So. 2d 124, 127 (Fla. 4th DCA 2008), quoting Esch, 123 Fla. at 911, 168 So. at 231.
[15] Penney v. First Trust & Savings Bank, 102 Fla. 185, 187, 135 So. 805, 806 (1931).
[16] Dania Beach Boat Club, 290 So. 3d at 102 (In this case, the appellate court viewed the issue as one of waiver.).
[17] Esch, 123 Fla. at 911, 168 So. at 231. See also McGoey v. State, 736 So. 2d 31, 34 (Fla. 3d DCA 1999) (in which the appellate court used contract law to address the “meeting of the minds” requirement of a stipulation).
[18] Id. at 34.
[19] Dortch, 137 So. 3d at 1177.
[20] McGoey, 736 So. 2d at 35.
[21] Fed. Land Bank of Columbia v. Brooks, 139 Fla. 506, 516, 190 So. 737, 741 (1939).
[22] Travelers Ins. Co. v. VES Service Co., 576 So. 2d 1349, 1350 (Fla. 1st DCA 1991).
[23] Id. at 1350-51 (taking issue with the trial court’s “expansive” reading of the stipulation).
[24] Wiener v. The Country Club at Woodfield, Inc., 254 So. 3d 488, 491 (Fla. 4th DCA 2018) (referencing McGoey’s language of a mutually assented agreement between parties); McGoey, 736 So. 2d at 34-35 (analyzing enforceability using Williston on Contracts).
[25] Dortch, 137 So. 3d at 1176.
[26] Penney, 102 Fla. at 187, 135 So. at 806.
[27] Central Square Tarragon, 82 So. 3d at 914 (noting that the trial court impermissibly abandoned the stipulation).
[28] Esch, 123 Fla. at 912, 168 So. at 231; Dortch, 137 So. 3d at 1176.
[29] Smith, 90 Fla. at 833, 107 So. at 260. See also Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403, 444 (1902) (noting the requirement to give “notice in sufficient time to prevent prejudice” when an inadvertent stipulation has been made).
[30] Central Square Tarragon, 82 So. 3d at 914.
[31] Steele v. A.D.H. Building Contractors, Inc., 174 So. 2d 16, 19 (Fla. 1965).
[32] Gunn, 252 So. 2d at 3-4.
[33] See Carnegie Steel Co., 185 U.S. at 444.
[34] See id.; Penney, 102 Fla. at 187, 135 So. at 806 (noting that a party should generally not be able to avoid a stipulation when it “has been acted upon” by the other party).
[35] Henrion v. New Era Realty IV, Inc., 586 So. 2d 1295, 1298 (Fla. 4th DCA 1991). See also Johnson, 663 So. 2d at 664-65.
[36] Esch, 123 Fla. at 911, 168 So. at 231.
[37] McGoey, 736 So. 2d at 34-35.
[38] Marin v. Aaron’s Rent to Own, 53 So. 3d 1048, 1050 (Fla. 1st DCA 2010).
[39] See United States v. Iguaran, 821 F.3d 1335, 1337 (11th Cir. 2016); Cunningham v. Standard Guar. Ins. Co., 630 So. 2d 179, 181(Fla. 1994).
[40] State ex rel. Alfred E. Destin Co. v. Heffernan, 47 So. 2d 15, 17 (Fla. 1950).
[41] 2K South Beach Hotel, 291 So. 3d at 160-61; Marin, 53 So. 3d at 1050; Henrion, 586 So. 2d 1298 (where plaintiff attempted to change its theory from negligence to breach of contract).
[42] See Wolk v. Resolution Trust Corp., 608 So. 2d 859, 860 (Fla. 5th DCA 1992).
[43] Smith, 90 Fla. at 833, 107 So. at 260.
Robert W. Lee is a Broward County court judge, currently serving as administrative judge of the county court. He earned his B.A. from Jacksonville University, M.A. from California State University, and J.D. with honors from the University of Florida. He is currently a member of the Judicial Management Council.
Yair S. Bengio is a 2024 J.D. candidate at Nova Southeastern University. He earned his B.S. in biochemistry from The City College of New York. He served as a judicial intern to Judge Lee in the summer of 2023 researching insurance and real estate litigation issues.
This article is submitted on behalf of the Solo and Small Firm Section, Cristina Alonso, chair, and Michelle Garcia Gilbert, editor.
