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What is a Pretrial Memorandum?

By Leigia Rosales
Updated May 16, 2024
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When a court case is scheduled for trial, the judge often needs to have a basic understanding of the issues in the case. A pretrial memorandum is often submitted to the judge before a trial to explain the position or argument of the party. In addition, a pretrial memorandum often has a list of witnesses expected to testify and a brief synopsis of what they will be testifying to at the trial. Technically, any memorandum submitted to the court prior to a trial could be called a pretrial memorandum; however, the term most commonly refers to a memorandum submitted in preparation for trial.

A pretrial memorandum may be requested by a court in a civil or criminal case that is scheduled for trial. As a rule, both sides are required to submit a memorandum to the judge a few days or weeks before the trial. Although the concept is the same, the information contained in a criminal case memorandum will differ from the information contained in a civil trial memorandum. In both cases, however, the memorandum will include any stipulations agreed to by the parties.

In a civil pretrial memorandum, the judge will be looking for the basic theory of the case from the plaintiff's perspective or the theory of defense from the defendant's perspective. For instance, in a lawsuit based on a breach of contract, the plaintiff would include the reason that he or she believes that the defendant breached the contract. In a defendant's memorandum, the judge is looking for what the defendant's defense is to the alleged breach. In addition, the pretrial memorandum will include a list of witnesses that the party intends to call at the trial.

In a criminal case, the prosecutor and the defendant may be required to submit a memorandum prior to trial. The prosecutor's memorandum will focus on what the defendant has been charged with and what evidence is available to prove those charges. In the United States, a defendant is not required to present any evidence in his or her defense because the burden is entirely on the prosecution to prove guilt. As a result, a defendant's memorandum will rarely focus on any actual defense to the crime. Instead, a defendant's memorandum may simply include a list of witnesses expected to testify on the defendant's behalf.

A pretrial memorandum may also be submitted to decide pretrial issues such as a motion to dismiss in a civil case or a motion to exclude in a criminal case. There are some issues in a legal case that can decide the outcome short of trial and are, therefore, addressed prior to a trial setting. In a criminal case, for example, if the defendant is successful on a motion to exclude, then evidence which the prosecution was intending to use at trial to convict the defendant may not be admissible.

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