Massachusetts Civil Procedure Rule 16:
Pre-Trial Procedure: Formulating Issues
In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:
(1) The simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(4) The limitation of the number of expert witnesses;
(5) The advisability of a preliminary reference of issues to a master;
(6) The possibility of settlement;
(7) Agreement as to damages; and
(8) 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 conference, the amendments allowed to the pleadings, 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 or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.
Effective July 1, 1974.
(1973) Although in recent years, the Superior Court has been unable to make consistent systematized use of pre-trial conferences, the device is well-worth preserving, regulating, and encouraging. Coupled with the liberal discovery provisions in the Rules, pretrial procedure can simplify and expedite every type of litigation. The basic principle of Rule 16, including the trial judge’s power to modify the pre-trial order “to prevent manifest injustice,” are quite familiar. Gurman v. Stowe-Woodward, Inc., 302 Mass. 442, 444-445, 19 N.E.2d 717, 718 (1939) and cases cited; Mitchell v. Walton Lunch Co., 305 Mass. 76, 80, 25 N.E.2d 151, 154 (1940).
The word “master” as used in Rule 16(5) includes an auditor. See Rule 53(a). The changes in Rule 16(5) from Federal Rule 16(5) are designed to reflect Massachusetts practice. Because an auditor’s findings are by their very nature evidence utilizable before a jury (see, e.g., Roth v. Rubin Bros., 344 Mass. 604, 607, 183 N.E.2d 856, 858-859 (1962)), it has not been considered necessary to say so. Rule 16(6) and Rule 16(7), taken from Superior Court Rule 58, are designed to emphasize that agreements about money, in either partial or full resolution of the dispute, are the most valuable by-products of a pre-trial system.