- Judge Andy Miller
- Civil Practice Guidelines
Civil Practice Guidelines
As of May 1, 2022, a standard case management order will be issued in lieu of attending the case management conference set by the Clerk’s Original Schedule; case management conferences are now available upon the parties’ request. All final pre-trial conferences are held in-person unless otherwise ordered.
1. The Court Rules and Guidelines
Civil litigants in Courtroom 5A are expected to know and to follow the Ohio Rules of Civil Procedure; the Local Rules of Practice of the Franklin County Common Pleas Court, General Division; and the Courtroom 5A Civil Practice Guidelines.
2. A General Warning to Unrepresented Parties in Courtroom 5A
While individuals have the right to represent themselves in a civil matter, they place themselves at a great disadvantage by doing so. The law can become complicated quickly, even during what may otherwise seem like an uncomplicated matter. A party’s failure to know or to follow the law in a civil case can result in an adverse action, including a judgment, against that party. Under Ohio law, parties proceeding in civil cases without counsel cannot be granted any special consideration merely because they are representing themselves. They must be held to the same standard as those who are represented by licensed attorneys. Accordingly, the Court advises any unrepresented parties to a legal proceeding in Courtroom 5A that their interests will be much better served by retaining counsel.
3. No Legal Advice
Under no circumstances will the Court or its staff provide legal advice. Do not contact the Court or its staff for recommendations as to a specific course of action to take in a pending or impending civil matter.
4. Generally, No Ex Parte Communication
Subject to the limited exceptions allowed by Rule 2.9 of the Ohio Code of Judicial Conduct, neither the Court nor its staff will engage in ex parte communications with a party to a pending or impending civil matter.
5. Strong Preference for Email Over Telephone
If a party needs to communicate with the Court or its staff about a pending or impending civil matter outside the context of a filing, a conference, a hearing, or a trial, the Court strongly prefers emails to the 5A Staff Attorney over telephone calls. Not only does email establish a record of the communication, it allows the sender to copy all other parties and thus avoid ex parte communications. Although telephone calls are generally discouraged, they are permissible when extraordinary circumstances require them.
6. The Case Schedule
A. The Original Case Schedule
The Original Case Schedule for a civil action is automatically generated by the Clerk of Courts when that civil action commences. It is an important tool meant to help the Court and parties to achieve a timely disposition of the case and to meet the case management guidelines of the Rules of Superintendence for the Courts of Ohio. Unless and until the Original Case Schedule is amended, the deadlines set forth therein (except the Trial Assignment, discussed later) are binding on the parties.
B. Amended Case Schedules
The Original Case Schedule can be amended upon the Court’s own initiative or upon a motion, but the Court will treat the amendment of even a single date or deadline in the Original Case Schedule as an
amendment of the entire Original Case Schedule. Thus, upon amendment, the Original Case Schedule will be replaced and superseded by a First Amended Case Schedule. Unless and until the First Amended Case Schedule is further amended, the deadlines set forth therein (except the Trial Assignment, discussed later) are binding on the parties. Any amended case schedule thereafter will be appropriately titled as the Second, Third, etc., Amended Case Schedule.
C. Motions to Amend a Case Schedule
As noted above, a motion requesting a change, extension, or continuance of even a single date or deadline in the operative case schedule (whether original or amended) is a motion to amend the entire case schedule. Proposed amended case schedules filed with such motions should be appropriately titled as First, Second, Third, etc.; and should include the new dates and deadlines requested as well as maintaining (i.e., repeating) the dates or deadlines that are not being changed.
1. Preference for Joint or Unopposed Motions
The Court strongly encourages the parties to discuss case schedule amendment motions before filing and to file (when possible) either joint motions signed by all parties or unopposed motions that tell the Court to expect no opposition. Joint and unopposed motions can be ruled upon quickly. On the other hand, motions that might be opposed cannot be ruled upon until the nonmovants have been given the opportunity to file their oppositions.
The Court encourages proposed case management schedules, but it will decline any proposed entry that is not: (1) submitted with a filed motion (even if it is a joint or unopposed motion); and (2) not signed by the person who authored/prepared it.
2. Required Standards for Case Schedule Amendment Motions
If a date to be amended has not yet passed, the movant need only show cause for the amendment sought. See Civ. R. 6(B)(1). The Court will generally presume good cause for such timely filed motions.
Conversely, if the date to be amended has already passed, the movant must now show: (a) cause for the amendment sought; and (2) excusable neglect for the delay in seeking the amendment. See Civ. R. 6(B)(2). The Court will not presume excusable neglect when considering such late-filed motions, and the Court will generally deny such motions if they fail to even acknowledge or address the movant’s tardiness.
7. Initial Disclosures & Supplementation
Civ. R. 26(B)(3)(a) now requires civil litigants to make certain disclosures early in a case without waiting for a specific discovery request. These initial disclosures need not be filed with the Court. They must be based on information that is reasonably available to the party at the time the disclosures are due, and the party is not excused from making these initial disclosures because it has not fully investigated the case, because it challenges the sufficiency of another party's disclosures, or because another party has not made its disclosures.
It is the policy of the Court to issue a Case Management Order early in most of its civil cases. Therein, the Court regularly orders civil litigants to timely supplement their disclosures when and if: (a) they obtain new information that renders their prior disclosures incomplete; and (b) that new information has not otherwise been made known during the discovery process (i.e., of such form and of such specificity as to be the functional equivalent of a supplemental disclosure). The Court considers the failure to supplement
disclosures to be the same as a failure to supplement discovery responses under Civ. R. 26(E). Thus, the failure to supplement disclosures may expose the failing party to the sanctions identified in Civ. R. 37(C)(1), including the exclusion of nondisclosed evidence or witness testimony.
8. Expert Disclosures from Healthcare Providers
The disclosure of expert witnesses in civil actions is now governed by Civ. R. 26(B)(7). When a healthcare provider is to be called as an expert, the disclosing party may rely on Civ. R. 26(B)(7)(d) to substitute that provider’s records for an expert report. Nonetheless, that party must disclose the specific issues upon which the healthcare provider is expected to opine as an expert (e.g., damages, the extent thereof, causation, lifecare plan, etc.). The party must also take reasonable steps to remove immaterial healthcare provider records (e.g., documents about unrelated treatments or medical issues) from the disclosure.
9. Resolving Discovery Disputes
Civ. R. 26(C), Civ. R. 37(A)(1), Civ. R. 45(C)(2), and Loc. R. 26.01 all require parties to make reasonable pre-motion efforts to resolve their discovery disputes. These obligations are strictly enforced in Courtroom 5A. Discovery motions made without first making such reasonable pre-motion efforts will often be denied, without prejudice, for that reason alone.
More specifically, a motion to compel discovery requires a “certification” that the movant has made good faith pre-motion efforts to resolve the dispute. See Civ. R. 37(A)(1). Similarly, a motion for a protective order requires a “statement” reciting such reasonable pre-motion efforts. See Civ. R. 26(C). Discovery motions that do not contain these required certifications or statements will also be summarily denied, without prejudice.
A. Status Conference Required
If the parties to a discovery dispute have met, conferred, made a good faith effort to resolve it, but remain at odds, they should contact the 5A Staff Attorney to request a pre-motion discovery status conference. Prior to this status conference, the parties should attempt to narrow their dispute as much as reasonably possible, and each party should submit a proposed order to the 5A Staff Attorney (via email) that explains specifically what that party would like the Court to order. If the parties do not reach an agreement at this pre-motion discovery status conference, the Court will set a briefing schedule for future discovery motions practice. If a discovery motion is filed after such a pre-motion discovery status conference, the movant need only note that fact in its certification or statement to establish good faith pre-motion efforts to resolve the dispute. Conversely, if a discovery motion is filed without there having first been a pre-motion discovery status conference, the Court will presume that the movant has not yet engaged in all good faith pre-motion efforts to resolve the dispute. As such, the motion will likely be denied without further discussion.
B. Status Conference Not Required
A common discovery dispute involves discovery responses or disclosures that are simply past due, and the requesting party needs a Court order compelling the responding party to provide those responses or disclosures by a specific date certain. In such situations, a pre-motion status conference is not necessary. Still, the Court notes that a single threat to involve the Court if the responding party does not respond by a specific day does not constitute good faith pre-motion efforts to resolve the dispute. Conversely, providing the past due disclosures or responses only after a properly supported discovery motion has been filed may still expose the late responding party to discovery sanctions.
C. Agreed Confidentiality/Protective Orders
Even when they are agreed to by the parties, the Court does not favor “boilerplate” confidentiality orders or protective orders, particularly those that attempt to place virtually all discovery material under some form of nondisclosure status. Parties submitting such agreed orders are reminded that material used for case dispositive pre-trial rulings or during the trial will ordinarily be a matter of public record.
10. Motions Practice
Deadlines for most motions are set forth in the Ohio Rules of Civil Procedure, the Local Rules of this Court, and original or amended case scheduling orders in a particular case. The general briefing schedule for all motions can be found in Civ. R. 6(C)(1).
If a party wishes to change a motion or briefing deadline, that party must move the Court for an extension of the deadline. Motion and briefing deadlines may not be changed by stipulation of the parties.
When moving to extend any deadline, the parties are reminded of the following:
1. Deadlines Not Yet Passed
If the deadline to be extended has not yet passed, the movant need only show cause for the extension. See Civ. R. 6(B)(1). The Court will generally presume good cause for such timely filed motions.
2. Deadlines That Have Already Passed
If the deadline to be extended has already passed, the movant must show cause for the extension and excusable neglect for the delay in seeking it. Civ. R. 6(B)(2). The Court will not presume excusable neglect when considering such late-filed motions, and the Court will generally deny such motions if they fail to even acknowledge or address the movant’s tardiness.
B. Motions That Need Urgent Attention
If a party needs immediate action on a motion, the Court strongly encourages that party to first discuss the matter with opposing counsel and (if possible) file either a joint motion or an unopposed motion with a proposed entry. Joint motions are those to which all parties have agreed and that all parties have signed. Unopposed motions are those in which one or more parties have not joined but to which those parties are not opposed. Such a motion affirmatively states that all parties have been consulted and that there will be no opposition. If a motion could be opposed, the Court must allow time for an opposition under Civ. R. 6(C)(1).
Moreover, there is often a delay between the time a motion is submitted to the Clerk’s Office and the time it reaches Courtroom 5A. The delay exists even with electronic filing, and it can be as long as several days. Consider this when filing motions for which urgent attention is genuinely necessary. In such situations, email the 5A Staff Attorney; provide them with the case name, case number, and title of the filing; and let them know that urgent attention is needed. Do not elaborate any further. Copy the other parties on the email.
C. Proposed Entries
The Court encourages proposed entries on simple matters (extensions, case schedule amendments, etc.), but it will decline to approve any proposed entry that is not: (1) submitted with a filed motion (even it is a joint proposed entry); and (2) not signed by the person who authored/prepared it.
D. Contacting the Court About Pending Motions
Once a motion is filed, briefed, and under the Court’s consideration, the Court will provide a decision on the motion in due time. The Court’s consideration will not be hurried by repeated calls to “check on the motion’s status” or to “see where the Court is” with a motion. Parties are discouraged from contacting the 5A Staff Attorney with such inquiries. Nevertheless, if a delayed decision on a pending motion is affecting the parties’ ability to follow the current case schedule, the parties are encouraged to seek an amended case schedule from Court and to cite the delayed decision as the cause. If a delayed decision is making it difficult for the parties to continue their discovery or to engage in meaningful settlement discussions, the parties should notify the 5A Staff Attorney of that via email communication.
E. Page Limits
To assist in meeting the page limits set forth in Local Rule 12, parties should assume that no briefing is necessary regarding the standards of decision for motions filed under Civ. R. 12, 26, 37, 56, 60.
In the absence of prior leave to file a long brief, the Court reserves the right to disregard the pages of any motion, memoranda, or brief that go beyond the limits set forth in Local Rule 12. Remember, a motion for leave to file a long brief must be filed no later than seven days prior to the time for filing the brief. See Loc. R. 12.03. A motion filed after that deadline has passed must show cause for the requested leave and excusable neglect for the delay in seeking it. Civ. R. 6(B)(2). The Court will not presume excusable neglect when considering such late-filed motions, and the Court will generally deny such motions if they fail to even acknowledge or address the movant’s tardiness.
11. Final Pretrial Conferences
The Final Pretrial Conference is critical to the just and expedient disposition of a civil case, to the realistic determination of the necessity for a trial, and to ensure that such a trial (if necessary) is conducted as smoothly and as fairly as humanly possible. The procedure and expectations for a Final Pretrial Conference are governed generally by Civ. R. 16(C)(2), Civ. R. 16(E), and Loc. R. 16.04. The Court expects counsel to be familiar with all of the obligations created thereby and with the following guidelines regarding Final Pretrial Conferences.
A. Initial Warning About Preparation Before a Final Pretrial Conference
Parties are expected to engage in a fair amount of preparation for a Final Pretrial Conference (see below), and the failure to be fully prepared for a Final Pretrial Conference can result in dismissal of a case for want of prosecution, a default judgment, or other sanctions the Court deems appropriate. See Loc. R. 16.04.
If a party comes to a Final Pretrial Conference unprepared, the Court will likely adjourn the conference summarily, amend the case schedule so as to continue the Final Pretrial Conference to a later date, and instruct the unprepared party on their obligations under the rules and these guidelines. The Court will, however, also consider dismissal, default, or other sanctions if: (a) the Court has reason to believe the lack of preparedness is willful, wanton, or reckless; or (b) a continuance would subject a prepared party to
either substantial hardship or undue prejudice. Repeated failures to come to a Final Pretrial Conference unprepared will give the Court sufficient reason to consider dismissal, default, or other sanctions.
B. Final Pretrial Continuances
A Final Pretrial Conference may be continued, but the continuance of a Final Pretrial Conference is actually an amendment to the existing case schedule. See Guideline 6.C, above. If a party cannot come to the Final Pretrial Conference prepared or believes that the Final Pretrial Conference would not be productive when scheduled, that party is encouraged to seek an amendment to the case schedule that continues the Final Pretrial Conference. It is far better to seek a continuance of the Final Pretrial Conference ahead of time than it is to appear at the pretrial conference unprepared or prepared only to tell the Court that the matter should be further continued.
C. Final Pretrial Attendance
The Final Pretrial Conference must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party. Parties who are represented by counsel are welcome, but not required, to the attend Final Pretrial Conference. If the real party in interest is an insurance company, common carrier, corporation, or other legal entity, then a representative from that entity must attend the Final Pretrial Conference as well, and that representative must have full authority to negotiate the claim or claims to the full extent of any relevant demand.
D. Joint Pretrial Statements
Local Rule 16.04 requires the parties to a civil action to prepare and file a Joint Final Pretrial Statement with the Court as part of their preparation for the Final Pretrial Conference. The Court considers the failure to file such a pretrial statement to be a failure to prepare for the Final Pretrial Conference itself.
1. Pretrial Statements Should Be Joint Statements
The parties are required to meet, confer, and discuss the case and the potential trial at some point prior to the scheduled Final Pretrial Conference so that they may prepare and file a Joint Final Pretrial Statement with the Court. This conference is one among the parties, and the Court does not participate in it. If one or more parties refuse to participate in this joint conference or in the joint preparation of a pretrial statement, the remaining parties are not absolved of their obligation to do so. In those rare circumstances, the participating parties may submit a non-joint pretrial statement to the Court, and they should note the non-participation of the non-joining party or parties. A pretrial trial statement that is not joined by all parties to the case and does not explain the absence of the non-joining parties will be deemed insufficient.
2. Timing of the Joint Pretrial Statements
Joint Final Pretrial Statement must be filed with the Court no later than 24 hours before the Final Pretrial Conference itself. Otherwise, they are of little use to the Court for purposes of the conference. Moreover, parties are reminded of the delay between the filing of a document and its actual receipt by Courtroom 5A. See Guideline 10.B, above. Joint Final Pretrial Statements must be emailed to the 5A Staff Attorney at the same time they are filed with the Clerk.
3. Contents of the Joint Pretrial Statements
The Joint Final Pretrial Statement shall include the following:
· A clear identification of Chief Trial Counsel for each party. Note that Chief Trial Counsel shall also be fully authorized to act and negotiate on behalf of their party at the Final Pretrial Conference;
· A detailed explanation of the factual and legal issues raised by the case and of the parties’ respective positions with respect to those issues;
· A detailed explanation of any evidentiary questions or disagreements raised by the case and of the parties’ respective positions with respect to those questions or disagreements;
· A list of all witnesses that the parties genuinely expect to testify;
· A list of all exhibits that the parties genuinely expect to offer, excluding those exhibits intended solely for use as impeachment;
· An itemization of all special damages to be claimed;
· A statement as to whether the parties do or do not consent to try the case to a Magistrate;
· A statement as to whether the parties do or do not wish to try the case to a jury;
· A description of any special trial procedures requested, including:
- Whether the case is one in which issues should be bifurcated;
- Whether a jury view will be requested;
- The estimated number of days required for trial;
· At least two alternative recommended dates upon which the trial can begin (the Court prefers to begin trials on Mondays); and
· A statement about the status of settlement negotiations.
E. Final Warning About Preparation Before a Final Pretrial Conference
Parties must come to a Final Pretrial Conference fully prepared, and full preparation includes the timely submission of a Joint Final Pretrial Statement. Moreover, the parties must also come to the Final Pretrial Conference fully authorized to negotiate settlement. Failure to appear, to be fully prepared, or to be authorized may result in: (a) dismissal of the case for want of prosecution; (b) default judgment in favor of a party asserting a claim; or (c) other sanctions as the Court deems appropriate. See Loc. R. 16.04
12. Trial Practice
A. The Trial Assignment Date
The Trial Assignment Date in the Case Schedule is not a definite date upon which a trial is expected to begin in the case. Contrary to other dates on in case schedule, the Trial Assignment Date is more aspirational. At the Final Pretrial Conference, the parties and the Court will choose a “Definite Set Trial Date,” and that will be the definite upon which the trial of a case is expected to be begin.
B. Trial Preparation
1. Motions in Limine
Motions in Limine must be filed at least seven days before trial. Late motions will not be considered without a showing of good cause and excusable neglect. Responses are due three days after the motions are filed. After filing a motion or response, the party should also email a copy to the 5A Staff Attorney. No replies will be permitted, and hearings on motions in limine will generally held the first morning of trial while the Court and the parties await on a jury venire.
Motions in limine should be filed only after the parties have engaged in a good-faith discussion of the issues. The Court does not look kindly on pretrial motions seeking to exclude evidence that another party never intended to introduce.
2. Trial Exhibits
Trial Exhibits must be pre-marked, sufficiently copied, placed in appropriate binders, and exchanged among the parties prior to opening statements. The Court reserves the right to exclude Trial Exhibits that have not been pre-marked, sufficiently copied, placed in appropriate binders, or exchanged among the parties prior to opening statements.
a. Joint Exhibits
Joint Exhibits are those marked exhibits for which all parties have agreed. They are strongly encouraged. Marking duplicate exhibits for more than one party greatly confuses the jury and the record. It also wastes a lot of trial time. Of course, a Joint Exhibit does not necessarily have to be an exhibit that all parties intend to use, offer, or admit. A Joint Exhibit is merely one to which all parties can agree. Joint Exhibits must be identified as such (e.g., Joint Exhibit 1, Joint Exhibit 2, Joint Exhibit 3, etc.) and placed in a separate Joint Exhibit Binder. A copy of that binder must be provided to the Court, the 5A Court Reporter, the 5A Staff Attorney and each party prior to opening statements. A single copy of the Joint Exhibit Binder must also be prepared for the witness stand.
b. Parties’ Exhibits
If a party wishes to use, publish, or admit an exhibit to which at least one other party will in any way object, that exhibit cannot be a Joint Exhibit, and it must be considered the proffering party’s exhibit. Such exhibits must be marked with the designation of the party proffering them and appropriate numbers or letters (e.g., Plaintiff’s Exhibit 1, Plaintiff’s Exhibit 2, etc., or Defendant’s Exhibit A, Defendant’s Exhibit B, etc.). Each party’s exhibits must be placed in a separate exhibit binder, and a copy of that binder must be provided to the Court, the 5A Reporter, the 5A Staff Attorney, and each party prior to opening statements. A single copy of each party’s exhibits binder must also be prepared for the witness stand.
3. Jury Instructions
The Court uses a standard set of “boilerplate” instructions covering the burden of proof, credibility of witnesses, rules for deliberating, and other matters common from case to case. The Court will provide the parties with a copy of these boilerplate instructions at the Final Pretrial Conference. The parties are required to discuss and prepare case-specific jury instructions. For each instruction provided—even if it is an agreed-upon instruction—the parties must provide some citation to the authority that supports it.
The parties are encouraged to find agreement wherever possible and to narrow their disputes to only those specific instructions over which there is an honest and relevant disagreement. In those situations, each party is to provide a proposed instruction and to support their proposed instruction with binding and/or persuasive authority.
The parties must submit a “complete” set of proposed jury instructions to the Court before the first day of trial. Merely providing a statement the parties in to “just use OJI” or something of similar import will not do, and it leaves far too much work to be done during the trial itself.
There will likely be changes to the proposed instructions as the trial unfolds, and the Court will not decide final jury instructions until just prior to closing arguments. Still, an honest and timely effort to prepare most of the jury instructions prior to trial will prevent a tremendous waste of actual trial time.
C. Trial Schedule
Because it is impossible to schedule a trial with any sort of precision in advance, the following should be considered a general statement of expectations for a one-week jury trial in Courtroom 5A.
1. The First Day
On the first day of trial, the Court will order a jury venire from the Jury Commission at 8:30 am, and that venire will reach Courtroom 5A sometime between 10 am and 12 pm. Counsel and clients should report to Courtroom 5A no later than 9:00 am and should be prepared to discuss various pretrial matters with each other and/or the Court until it is time to seat the venire. During this time period, the Court may also handle other matters on its docket so as not to interrupt the trial once it is formally begun.
Ideally, the first day of a jury trial in Courtroom 5A will include voir dire, jury selection, providing the chosen jury with some preliminary instructions, and opening statements. Admittedly, that is an ambitious first-day schedule, so the Court is prepared to accept starting the second day of trial with opening statements.
The jury will be given an hour for lunch on the first day of trial, and there will be a “hard stop” at 5 pm. A “hard stop” means that the Court reserves the right to cut off argument or examination mid-sentence at or after 5 pm if need be, and counsel is expected to plan accordingly.
2. The Following Days
After the first day, a jury trial in Courtroom 5A is 9 am to 5:30 pm for the parties. For the jury, the day is 10 am to 5 pm. During the first hour of each day (i.e., 9 am to 10 am), counsel should be prepared to discuss whatever court business needs to be discussed outside the presence of the jury. The Court may also handle other matters on its docket during this first hour.
The jury will then hear argument or evidence from 10 am to 12 pm, at which time they will be released for an hour lunch break. The noon lunch time is not a “hard stop,” but counsel should plan on it and find an acceptable stopping point around that time. If necessary, the parties and their counsel may also discuss trial matters with the Court outside the presence of the jury during this lunch hour.
The jury will return at 1 pm to hear argument or evidence for 1 hour and 50 minutes. At 1:50 pm, the trial will adjourn for a 10-minute recess to allow the trial participants to stretch their legs and/or use the
facilities. This 1:50 pm break time is not a “hard stop,” but counsel should plan on it and find an acceptable stopping point around that time.
The jury will return at 2 pm to hear argument or evidence again until 5 pm. This 5 pm closing time is a “hard stop,” meaning that the Court reserves the right to cut off an argument or examination mid-sentence at or after 5 pm if need be, and counsel is expected to plan accordingly. Sometime around halfway through this last three-hour session of the day, the jury and trial participants will be given a short break, which could be as short as standing and stretching out legs for a moment or as long as a 10-minut restroom break.
The last half hour of the day (i.e., 5 pm to 5:30 pm) is reserved for additional time (if needed) to discuss trial matters outside the presence of the Court.
The Court will allow a day to go longer than 5 pm if the jury is willing to stay. If it appears that going longer than 5 pm may be the only way to avoid a second week of trial, the Court will put the question to the jury, and the Court will respect the jury’s decision.
3. Once Deliberations Begin
Once jury deliberations begin, the Court will allow the jury to largely dictate the schedule. They can choose to adjourn their deliberations for the day at any time after 5 pm, up to and including 9 pm. Trial Counsel or unrepresented parties are expected to be able to return to Courtroom 5A on ten minutes notice at any time during which the jury is deliberating. Trial Counsel or unrepresented parties should always leave their cell phone numbers with the 5A Staff Attorney.
D. Voir Dire and Jury Selection
1. Rules on Voir Dire
Civil litigants in Courtroom 5A are instructed to review the “Rules on Voir Dire” outlined in Loc. R. 27.13(F).
2. Regular Jurors & Alternates
As a general matter, the Court will almost always empanel 8 regular jurors and 2 alternates in a civil case. Before the prospective jurors enter Courtroom 5A, two seats within Courtroom 5A’s jury box will be randomly selected by the parties. At the end of jury selection, the two jurors sitting in those selected seats will be the alternates. Although the Court and the parties will know that those jurors are alternate jurors, the jurors themselves will not. Alternate jurors will be treated as regular jurors throughout the trial, and they will only be designated as alternates when it is time for the jury to deliberate. Alternate jurors will be sequestered in reserve should they be needed before verdict.
3. Time for Voir Dire
The Court will begin voir dire with its own examination, which should take no longer than 30 minutes. Each party will then have the opportunity to conduct an examination. Although questions should be asked collectively of the entire panel whenever possible, the time limit for a party’s examination will be based on the total number of prospective jurors in the venire. In most civil cases, the Court will request a total of 25 jurors for a venire, and it will give each party 2 minutes per prospective juror (or 50 minutes total) to examine the entire panel.
E. Miscellaneous Trial Practice Guidelines
1. Time for Opening Statements
Unless good cause for more time is specifically shown beforehand, the Court will limit each party’s opening statement to 30 minutes.
2. Time for Closing Arguments
Generally, the Court will not limit a party’s closing argument unless it becomes necessary to do so. If the Court does limit closing argument, it will do so only after the parties have rested and be given an opportunity to discuss the matter. If the Court limits closing argument, it will do so equally for all parties.
3. Calling Witnesses
When a party calls a witness, that party need only identify the witness it wishes to call. The 5A Bailiff will retrieve the witness from outside the courtroom or from within gallery, escort them to the witness box, and swear them in. The calling attorney should not leave the well to retrieve the witness called.
4. Limits on Witness Examination
Absent extraordinary circumstances, the Court will not permit the examination of a witness to extend further than re-cross examination. Moreover, only one attorney per party will have the floor for each witness.
5. Juror Notetaking
Jurors will be allowed to take notes during opening statements, the presentations of evidence, and closing argument.
6. No Juror Questioning
Jurors will not be permitted to question witnesses.
7. No Qualifying Expert Witnesses
The Court will not affirmatively “qualify” any witness as an “expert” in front of the jury. If there is an admissibility challenge to the opinion testimony of a proffered expert witness, that challenge should be raised as early as possible and must be made outside the presence of the jury. In fact, the best time for such a challenge would be through a pre-trial motion in limine. Nonetheless, if such an issue arises only after trial has begun, the challenging party must alert the Court as soon as possible so it can arrange an admissibility hearing outside the jury’s presence.
8. Exhibits During Opening
If a party intends to display an exhibit to the jury during an opening statement, that party must inform the others of its intent, determine whether there are any objections, and bring the matter to the Court’s attention before the start of opening statements. If there is a dispute, and the Court only learns about the dispute after opening statements have begun, the Court will likely sustain the objection and prohibit the display of the exhibit.
9. Speaking Objections Prohibited
If an objection or response thereto cannot be expressed in less than a legal phrase or term of art, counsel should request a side bar with the Court. Moreover, counsel should state their objections and responses flatly, without an argumentative tone, and to the bench (instead of opposing counsel).
10. Referring to Individuals
Do not refer to individuals by their first names. Instead use their preferred titles (i.e., Mr., Mrs., Ms., Dr., Rev., Officer, Sgt., etc.) followed by their last names.
If counsel wish to submit their case to a Magistrate for mediation, simply call the 5A Staff Attorney and let them know. The Court also encourages the use of private mediators whose schedules may be more accommodating. Parties are warned not to wait until an approaching trial date to ask for or try mediation or other methods of alternative dispute resolution.
14. Notice of Settlement
Consistent with Local Rule 22, counsel must call the 5A Staff Attorney or 5A Secretary as soon as possible to notify when a case has been settled. When the Court receives notice that a case has been settled, the Court will, by order, give the parties thirty days to file an entry of dismissal of the case. This time period may be extended for good cause shown, but if it passes without extension or dismissal, the case will be dismissed by order of the Court.