Chapter 16: Pretrial

Pretrial conferences and pretrial orders under Federal Rule 16 establish scheduling, narrow issues, and create a procedural bridge from pleading and discovery into trial — and skilled advocates use these conferences not just for compliance but as opportunities for advocacy, settlement leverage, and judicial dialog.

Chapter 16

Pretrial Orders

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Life is just one damned thing after another.

Frank Ward O’Malley

§ 16.1 Pretrial Conferences

and Orders Generally

One facet of civil litigation must, if only by its name, be included in a book on pretrial litigation: the pretrial conference. An innovation of the Federal Rules of Civil Procedure adopted way back in 1938, the pretrial conference has had an important, although at times somewhat ill-defined, role in federal civil litigation since then. The pretrial conference has now become a standard part of state-court litigation as well.

An adjunct to the pretrial conference is the pretrial order. Most pretrial conferences are either preceded or followed, or both, by a pretrial order. These orders serve widely differing roles: in some courts merely notifying the parties of the scheduling of an upcoming pretrial conference and in others creating onerous burdens of preparation and submission of all materials for trial. Other pretrial orders merely record the events at a pretrial conference, while others follow the conference and create additional burdens.

One reason for placing this chapter at the end of the book is that the subject seems a logical segue to the study of trial practice. Pretrial orders and preparation for pretrial conferences involve activities that are essentially trial activities, such as identifying and marking trial exhibits, stipulating to facts, identifying and listing witnesses (sometimes in the order in which they will be called), and submitting proposed jury instructions or findings of fact. These activities are normally part of trial, but pretrial orders may require that they be done prior to trial.

Pretrial conferences also present the same opportunities for advocacy presented both by the various pretrial proceedings discussed above and by trial. Even in courts that do not routinely hold pretrial conferences, a party may be able to have the court hold a conference by requesting it. That request may be an effective means to permit meaningful settlement discussions to take place. If an opposing attorney has indicated that a settlement proposal is unacceptable to a client, a pretrial settlement conference may be especially useful. A judge may be in a unique position to give the parties a perspective on the proposed settlement needed to make the party realize settlement is appropriate.

LLMs can help counsel prepare for pretrial conferences and orders by automating drafting, and summarizing key discussions, as well as ensuring compliance with court rules. GenAI-backed tools can generate pretrial orders based on case details and judicial preferences. Additionally, GenAI can transcribe pretrial conferences, summarize key rulings, and highlight unresolved disputes, making it easier for attorneys to track action items for further submissions.

Beyond documentation, GenAI can assist in trial preparation by organizing exhibits, drafting stipulations, and structuring witness lists. If the LLM has access to legal databases (e.g., opinions, orders), the tools can also assess judicial preferences by analyzing past rulings, helping attorneys refine their approaches. In settlement discussions, GenAI can help assess damages, compare past settlements, and suggest negotiation strategies. The tools can also cross-check submission against court rules, flag potential issues, and ensure all filings meet procedural requirements.

§ 16.2 The Pretrial Conference

Rule 16 of the Federal Rules of Civil Procedure establishes the outlines of the power of a court to hold pretrial conferences. One of the major purposes of pretrial conferences, settlement, is discussed in the previous chapter. Other purposes may be more important, and preparation for the other aspects of pretrial conferences can certainly be more time-consuming.

The federal rules initially intended the pretrial conference to provide the court with an effective means of exercising control over civil actions. The rule was viewed as necessary in part because of the relaxation of pleading requirements, liberalization of joinder of claims and parties, and the broadening of discovery under rule practice. Pretrial conferences seek to return some focus to the proceedings.

The variety in what can and does transpire at different pretrial conferences is almost impossible to describe. Notwithstanding that disclaimer, here goes. First, differences exist in the agendas for pretrial conferences based on the stage of the litigation. Many courts have traditionally held initial pretrial conferences early in an action, often shortly after the pleadings have closed. These early pretrial conferences are also sometimes called “status” or “scheduling” conferences. These conferences differ considerably from pretrial conferences held later in the action. The “status” pretrial conference frequently establishes various deadlines for completing discovery, submitting motions, and marking the case as “ready for trial.” Settlement may be discussed, although it is rarely the focus of the early conference.

Fed. R. Civ. P. 16(b) requires the court to issue a scheduling order. The scheduling order must limit the time:

  1. To join other parties.

  2. To amend the pleadings.

  3. To complete discovery.

  4. To file motions.

The rule permits the court to do the following (but does not require any of these for any case):

(i) modify the timing of disclosures under Rules 26(a) and 26(e)(1);

(ii) modify the extent of discovery;

(iii) provide for disclosure or discovery of electronically stored information;

(iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced;

(v) set dates for pretrial conferences and for trial; and

(vi) include other appropriate matters.

Pretrial conferences held later in the lawsuit usually have much broader agendas. Fed. R. Civ. P. 16(c)(2) provides a nonexclusive list of subjects that may be covered. The rule states:

At any pretrial conference, the court may consider and take appropriate action on the following matters:

(A) formulating and simplifying the issues, and eliminating frivolous claims or defenses;

(B) amending the pleadings if necessary or desirable;

(C) obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence;

(D) avoiding unnecessary proof and cumulative evidence, and limiting the use of testimony under Federal Rule of Evidence 702;

(E) determining the appropriateness and timing of summary adjudication under Rule 56;

(F) controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37;

(G) identifying witnesses and documents, scheduling the filing and exchange of any pretrial briefs, and setting dates for further conferences and for trial;

(H) referring matters to a magistrate judge or a master;

(I) settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule;

(J) determining the form and content of the pretrial order;

(K) disposing of pending motions;

(L) adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;

(M) ordering a separate trial under Rule 42(b) of a claim, counterclaim, cross claim, third-party claim, or particular issue;

(N) ordering the presentation of evidence early in the trial on a manageable issue that might, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c);

(O) establishing a reasonable limit on the time allowed to present evidence; and

(P) facilitating in other ways the just, speedy, and inexpensive disposition of the action.

Among additional specific subjects that may be covered at a pretrial conference but are not directly mentioned in the rule are the following:

  1. The necessity or desirability of a further conference of the parties prior to a formal pretrial conference.

  2. Method of jury selection and number of peremptory challenges by individual parties in multi-party cases.

  3. Proposed voir dire questions.

  4. Requested preliminary instructions to the jury.

  5. Specification of theories of claims or defenses.

  6. Specification of special damages.

  7. Identification of any statutes, regulations, or ordinances applicable to the claims or defenses or relied upon by any party.

  8. Identification of all expert witnesses and exchange of reports.

  9. Limitation on the number of expert witnesses.

  10. Disclosure of interested parties or insurers.

  11. List of scheduled witnesses for each party.

  12. Disclosure and review of real evidence exhibits.

  13. Disclosure and review of any demonstrative evidence and visual aids for the trial (e.g., charts, models, photos).

  14. Planned use of presentation equipment (document camera, video monitors, laptop presentations).

  15. Requested jury instructions.

Between what the rule specifically provides for and what may be considered under the broad language of the rule, there is little that cannot be considered at a pretrial conference. Most of the matters to be considered will be disclosed in the pretrial order setting the conference. Prudent counsel will also check with other attorneys to determine how the particular judge handles pretrial conferences.

The courts in pretrial conferences wield great power. The court may enter orders at pretrial conferences even in the absence of a motion by the parties. For example, if a court has the power to dismiss an action for failure to comply with the rules under Fed. R. Civ. P. 41(b), it may exercise that power by dismissing the case at a pretrial conference.^[1]^ Similarly, the court may be able to grant a directed verdict at a pretrial conference if the evidence adduced during discovery is patently insufficient to survive a motion for directed verdict at trial.^[2]^ These results represent extreme pretrial conference outcomes.

Obviously, it is a good idea to attend a scheduled pretrial conference. The United States Supreme Court has recognized that an action can be dismissed for failure to attend a pretrial conference, and courts ordering pretrial conferences tend to take them seriously.^[3]^ The lawyers trying the case must attend and parties may attend or be available.

Some pretrial conferences are more “pre” than others. Although pretrial conferences are generally thought of as separate proceedings held some weeks or months before trial, pretrial conferences can, and frequently are, held on the day of trial. This timing is particularly appropriate in courts using a master calendar system of assigning cases for trial, since the morning of trial will be the first time the trial judge is known. A pretrial conference at the time of trial is used for the same purposes as one held months before trial. In addition, this last-minute conference may be useful for resolving issues the attorneys or court did not think of at the earlier stages of the litigation.

The variety in format of pretrial conferences extends as well to the mechanics and formality of the conference. Some judges hold the conferences in open court, others prefer to hold pretrial conferences in chambers. Even in chambers some judges approach the matter very formally, allowing each attorney to make a “presentation” in turn, while other judges turn immediately to discussion between the parties of various particular matters. For example, the judge may ask each attorney why more than one expert witness is necessary, then promptly rule that only one expert per side will testify, and then move on to the next issue.

Settlement may be the first thing brought up by the judge, or it may be the last. Some judges will not bring up settlement until they have heard from the parties, but will not decide anything until settlement has proven fruitless or hopeless. This practice increases each party’s uncertainty about the litigation, and presumably may make them more receptive to compromise.

Decorum at a pretrial conference must be suitable to the circumstances. The attorney’s behavior must always be respectful and cooperative, and a conference held in chambers may lend itself to a more informal presentation than is appropriate in open court.

§ 16.3 Pretrial Orders

Pretrial orders are orders entered as part of the pretrial conference procedures. Pretrial orders include orders entered prior to a pretrial conference that establish the conference agenda or mandate certain preparation by the parties. Other pretrial orders are entered during or following the conference. Some pretrial orders direct the parties to prepare a joint, or agreed, pretrial order to be entered subsequently by the court. Some judges have forms used solely for memorializing pretrial conference discussions; other judges summarize the discussions at the pretrial conference in an “order” made on the record rather than in a written order. Regardless of its form, a pretrial order may be very important to later aspects of the case. AI can assist with composing and reviewing an order.

Generally, the burdens imposed by a pretrial order are commensurate with the complexity of the litigation. In simple, two-party litigation the court may not even enter a pretrial order or may enter a standard form order. If a pretrial order is entered in such cases, it is usually limited in scope. In complex, multi-district or multi-party litigation, the court may enter a series of complex pretrial orders.^[4]^ We have included below a sample pretrial order that fits somewhere in the middle of the spectrum. It is less burdensome than some of the orders issued in complex litigation, but imposes significant burdens on the parties. Most of this work is the acceleration of various aspects of trial preparation. The order does not require counsel to prepare things that they would not otherwise do, but requires them to prepare such things as witness lists, exhibit lists, requested instructions and trial briefs long before trial.

In many complex cases the court will enter a Case Management Order or CMO that deals with a wide variety of issues relating to how the case will be managed. Many judges will encourage the parties to meet and confer on the terms of a CMO and even in the absence of a judicial invitation, it probably makes sense to do so. The parties may be able to deal with matters such as the schedule for the litigation, ground rules for depositions, mechanisms for exchanging and reviewing documents, the staging of motions, and a virtually unlimited array of similar matters.^[5]^ In class actions and other complex cases, the parties may also be well served by agreeing on the appointment of a special master to assist in resolving pretrial disputes expeditiously. Pretrial orders often establish deadlines for the litigation that should not be ignored. [Fed. R. Civ. P. 16(b)(4)](https://www.westlaw.com/Document/NC29248D0B96211D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NC29248D0B96211D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) allows a schedule established in a pretrial order to be modified only upon a showing of good cause and the consent of the judge.^[6]^

The most important aspect of pretrial orders, however, is their binding nature. Unless the court permits an order to be modified, the order controls the conduct of all further proceedings in the litigation. Thus, the pretrial order’s statement of the issues to be litigated becomes a binding statement of what will be the scope of the trial. If other issues are litigated without objection, the order will be deemed modified by consent just as pleadings will be deemed amended by consent.^[7]^ In most cases, however, the order does fix the scope of the litigation and controls the later proceedings, so it is important to ensure that the order is acceptable. One occasionally surprising feature of a pretrial order is that its statement of the issues to be tried in a case can supersede the pleadings.^[8]^ It is therefore important that the order be given careful attention from counsel.

Sample Pretrial Order

IN THE UNITED STATES DISTRICT COURT

STANDING ORDER RE PRETRIAL ORDER

(The Pretrial Memorandum described in Rule 21(c) of the Local Rules of Civil Procedure is NOT required.)

Item One: If after a settlement conference it appears that the case will not settle, the Final Pretrial Conference shall be held as scheduled by the Court. Counsel are hereby directed to confer in advance of such pretrial conference for the purpose of preparing a Pretrial Order, which Order shall be delivered to the Judge’s chambers, in duplicate, prior to the date of the pretrial conference unless otherwise directed.

The aforesaid Pretrial Order shall consist of one document, shall be signed by all counsel, and shall reflect the efforts of all counsel. It is the obligation of plaintiff’s counsel to initiate the procedure for preparation and completion of this Final Pretrial Order.

The Final Pretrial Order, as filed, shall govern the conduct of the trial of the case. Amendments to this Order shall be allowed only in exceptional circumstances to prevent manifest injustice.

Item Two: After the Final Pretrial Conference, the Pretrial Order shall be signed by the judge. The case shall then be ready for trial.

Item Three: The Pretrial Order shall be prepared on the attached form with addenda as required (an original and one copy for the Court, one copy for each counsel).

IN THE UNITED STATES DISTRICT COURT

) CIVIL ACTION

) NO. _______

FINAL PRETRIAL ORDER

This matter having come before the Court at a pretrial conference held pursuant to Rule 16 of the Federal Rules of Civil Procedure, and _______ having appeared as counsel for the plaintiff(s) and _______ having appeared as counsel for the defendant(s), the following Order is hereby entered:

PART I: WITNESSES, DEPOSITIONS, ANSWERS TO INTERROGATORIES, AND PLEADINGS

(Only the witnesses listed herein will be permitted to testify at the trial. Any objections to a witness must be noted by opposing counsel. Only those depositions, answers to interrogatories and pleadings listed herein will be admitted into evidence; any objections of opposing counsel to such use will be deemed waived if not set forth herein.)

A. Plaintiff’s Witnesses

  1. The plaintiff intends to call the following witnesses in regard to liability:

  2. The plaintiff intends to call the following witnesses in regard to damages:

  3. The plaintiff intends to offer into evidence the following portion(s) of the deposition, pleadings and/or answers to interrogatories:

  4. The defendant waives all objections to the receipt into evidence of the above deposition, pleadings and/or answers to interrogatories except as follows:

B. Defendant’s Witnesses

  1. The defendant intends to call the following witnesses in regard to liability:

  2. The defendant intends to call the following witnesses in regard to damages:

  3. The defendant intends to offer into evidence the following portion(s) of the deposition, pleadings and/or answers to interrogatories:

  4. The plaintiff waives all objections to the receipt into evidence of the above deposition, pleadings and/or answers to interrogatories except as follows:

C. Expert Witnesses

(No expert shall be permitted to testify unless listed below. No expert shall be permitted to testify unless disclosure of the expert and opinions has been provided consistent with [Fed. R. Civ. P. 26](https://www.westlaw.com/Document/NCBF83860B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCBF83860B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). No opposing counsel shall be permitted to question his qualifications as an expert unless the basis of objection is set forth herein. No expert witness will be permitted to testify unless all opposing counsel, prior to the date of this Order, have been informed in writing as to the substance of said expert’s testimony.)

  1. Plaintiff’s expert witnesses and identification of writing containing substance of testimony:

  2. Defendant’s objection to the qualifications of plaintiff’s expert is:

  3. Defendant’s expert witnesses and identification of writing containing substance of testimony:

  4. Plaintiff’s objection to the qualifications of defendant’s expert is:

PART II: EXHIBITS

(Only the exhibits listed below shall be introduced at the trial. Any objection to an exhibit, and the reason for said objection, must be set forth herein or it shall be deemed waived. All parties hereby agree that it will not be necessary to bring in the custodian of any exhibit unless an objection to this procedure is set forth below.)

A. Plaintiff’s Exhibits

  1. Plaintiff intends to introduce the following exhibits into evidence (list by numbers with a description of each exhibit):

  2. Defendant objects to the introduction of plaintiff’s exhibit (set forth number of exhibit and grounds for objection):

B. Defendant’s Exhibits

  1. Defendant intends to introduce the following exhibits into evidence (list by numbers with description of each exhibit):

  2. Plaintiff objects to the introduction of defendant’s exhibit (set forth number of exhibit and grounds for objection):

PART III: FACTS

A. Stipulation of Facts

(Set forth a comprehensive stipulation of all uncontested facts in narrative form. Said stipulation shall include all answers to interrogatories and admissions which facts are agreed to by all parties. Said stipulation shall be read into the record as the first evidence at trial.)

B. Plaintiff’s Contested Facts

  1. Plaintiff intends to prove the following contested facts in regard to liability:

  2. Plaintiff intends to prove the following contested facts in regard to damages:

C. Defendant’s Contested Facts

  1. Defendant intends to prove the following contested facts in regard to liability:

  2. Defendant intends to prove the following contested facts in regard to damages:

PART IV: LAW

A. Plaintiff

  1. Plaintiff’s statement of the legal issues in this case:

  2. Plaintiff’s statement of the law applicable to the aforesaid legal issues:

B. Defendant

  1. Defendant’s statement of the legal issues in this case:

  2. Defendant’s statement of the law applicable to the aforesaid legal issues:

PART V: MISCELLANEOUS

(Set forth any additional stipulations of counsel and/or orders concerning the trial of this case.)

PART VI: JURY/NON-JURY TRIALS

A. Jury Trials

  1. Unless stated to the contrary herein, the issues relating to liability shall be severed and tried to verdict. Thereafter, all issues relating to damages will be tried before the same jury. The decision concerning bifurcation of the trial will be made by the Court at the pretrial conference as a result of an informed exercise of discretion on the merits of the case.

  2. Requests for instructions to the jury shall be submitted, in duplicate, to the Court prior to the commencement of a jury trial. There is reserved to counsel the right to submit additional requests for instructions during the course of the trial on those matters that cannot reasonably be anticipated.

B. Non-Jury Trials

  1. Unless stated to the contrary herein, the issues relating to liability shall be severed and tried to verdict. Thereafter, all issues relating to damages will be tried. The decision concerning bifurcation of the trial will be made by the Court at the pretrial conference as a result of an informed exercise of discretion on the merits of the case.

  2. Requests for Findings of Fact and Conclusions of Law shall be submitted, in duplicate, to the Court prior to commencement of the trial. There is reserved to counsel the right to submit additional requests during the course of the trial on those matters that cannot reasonably be anticipated.

Amendments to this Pretrial Order will not be permitted except where the Court determines that manifest injustice would result if the amendment is not allowed.

Date:Judge
Practice Problems and Assignments

Follow the directions from your professor in completing an assignment.

  1. You represent Mike Mullarkey as his suit against Denial Mutual Insurance Co. (Case N) is ready for the Final Pretrial Conference. What do you want to accomplish at the Conference? What are your settlement objectives and how should you pursue them? What are your litigation objectives if the case does not settle? What do you want in the Final Pretrial Order? What information and impressions are you going to try to convey to the Judge?
  2. Alternatively or in addition to your work on Question No. 1, complete the Sample Pretrial Order above as you would if representing Mullarkey.
  3. Having been retained as counsel for defendant Gravitas Grinch on behalf of ProTectCo Property & Casualty Insurance Co. (pursuant to its duty to defend the policyholder who has been sued, even if the insurer is simultaneously trying to deny coverage via a declaratory judgment action), you are approaching the Final Pretrial Conference in Case O (Estate of Dara Domestic v. Gravitas Grinch). What do you want to accomplish at the Conference? What are your settlement objectives and how should you pursue them? What are your litigation objectives if the case does not settle? What do you want in the Final Pretrial Order? What information and impressions are you going to try to convey to the Judge?
  4. Alternatively or in addition to your work on Question No. 3, complete the Sample Pretrial Order above as you would if representing Grinch in the Domestic v. Grinch litigation.
  5. You represent Igor Investor and a class of customers in litigation against TechTrust Wealth Management (Case P) as the Final Pretrial Conference Approaches. What do you want to accomplish at the Conference? What are your settlement objectives and how should you pursue them? What are your litigation objectives if the case does not settle? What do you want in the Final Pretrial Order? What information and impressions are you going to try to convey to the Judge?
  6. Alternatively or in addition to your work on Question No. 5, complete the Sample Pretrial Order above as you would if representing the Investor Class
  7. You represent TechTrust Wealth Management defending the Igor Investor class action (Case P) as the Final Pretrial Conference Approaches. What do you want to accomplish at the Conference? What are your settlement objectives and how should you pursue them? What are your litigation objectives if the case does not settle? What do you want in the Final Pretrial Order? What information and impressions are you going to try to convey to the Judge?
  8. Alternatively or in addition to your work on Question No. 7, complete the Sample Pretrial Order above as you would if representing the TechTrust Wealth Management.

Engage in similar pretrial conference and order work in a case assigned by your Professor. Follow your Professor’s directions about AI.

  1. *See *Buss v. Western Airlines, Inc., 738 F.2d 1053 (9th Cir. 1984). ↑
  3. [Link v. Wabash R.R. Co.](https://www.westlaw.com/Document/I18d030d89bea11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I18d030d89bea11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 370 U.S. 626 (1962)](https://www.westlaw.com/Document/I18d030d89bea11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I18d030d89bea11d9bdd1cfdd544ca3a4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
  4. The Manual for Complex Litigation Fourth provides suggested procedures for holding pretrial conferences and using pretrial orders in complex litigation. The Manual includes sample orders. Additional examples are contained in David F. Herr, Annotated Manual for Complex Litigation Fourth (West 2020). ↑
  5. David F. Herr, Annotated Manual for Complex Litigation Fourth, App. A (West 2020), includes numerous sample CMOs from a wide variety of types of actions. ↑
  6. See, e.g.,* **[Petrone v. Werner Enterprises, Inc](https://www.westlaw.com/Document/Ib0b7da80eb7911e9be36860eb2f983f8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ib0b7da80eb7911e9be36860eb2f983f8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)*[., 940 F.3d 425 (8th Cir. 2019)](https://www.westlaw.com/Document/Ib0b7da80eb7911e9be36860eb2f983f8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ib0b7da80eb7911e9be36860eb2f983f8/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(court abused discretion by extending deadline when no showing of good cause was made). ↑
  7. See,* e.g., *Gorby v. Schneider Tank Lines, Inc., 741 F.2d 1015 (7th Cir. 1984). ↑
  8. See,* e.g., **[Murphy-Sims v. Owners Insurance Co.](https://www.westlaw.com/Document/I8e03dc5033e011eaac0ee4466ee51240/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I8e03dc5033e011eaac0ee4466ee51240/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)*[, 947 F.3d 628 (10th Cir. 2020)](https://www.westlaw.com/Document/I8e03dc5033e011eaac0ee4466ee51240/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I8e03dc5033e011eaac0ee4466ee51240/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)(plaintiff held to have waived claims not in order, despite having included them in the complaint). ↑