Recognizing the difficulty of remembering preferences and procedures for each Judge, this memorandum is intended to guide daily business in Courtroom 8A. We hope that you find these suggestions helpful, and share them freely with all counsel in your case and within your law firm.
I. PROFESSIONALISM
Professional behavior best serves your clients and this Court. Each Judge on our court received nearly 2000 new-filed cases during 2007. No one has time for, or patience with, unnecessary contention that increases cost or delay for litigants, or wastes the court’s limited resources.
If you find yourself in a dispute with other counsel, please step back and pick up the phone, or schedule a face-to-face meeting rather than file an inflammatory motion.
Note that the “Introductory Statement on Civility” published at the front of the Local Rules for the United States District Court for the Southern District of Ohio has universal applicability.
II. CONTACT WITH COURT STAFF
If you have questions about the following procedural matters in Courtroom 8A , feel free to call the persons indicated below.
| SECRETARY |
Vanita Sipe |
462-6281 |
General Inquiries. |
| BAILIFF |
Sharon Lynch |
462-5898 |
Contact about case scheduling including reporting status of cases coming up for trial or reporting cases are settled; requests to have cases referred to arbitration or mediation; requests for new trial dates as explained in § III(A) below; or other general inquiries. |
| STAFF ATTORNEY |
Adam E. Crowell |
462-5890 |
To request status conferences, or oral argument on significant motions; or to inquire about court procedures or pending motions. |
| MAGISTRATE |
Tim Harildstad |
462-5995 |
To request transfer of a matter for a jury trial or other proceeding (such as a damages hearing on a default judgment.) |
| COURT REPORTER |
Carol Jung |
462-3765 |
To order transcripts. |
III. CONTINUANCES AND AMENDED CASE SCHEDULES
A(1). Motions to amend the Civil Case Schedule should either be submitted in person at a status conference with the court, or filed with the Clerk’s Office. Please be sensitive to the Local Rules governing presumptive time to trial for various types of cases, and invest your best effort to comply. Be certain to talk to all other counsel before approaching the court.
(2). Stipulations or “Agreed” Entries are not sufficient to postpone case deadlines or trial dates in Courtroom 8A. Motions for continuance of a trial date, absent true emergency, must be in writing and should be sought well before the Final Pre-trial Conference or trial date. If you have a case that genuinely appears likely to require a trial, alert chambers as soon as you know so that we can do our best to allow adequate time for pretrial proceedings, and we try to assign a “hard” trial date.
Any continuance Motion should affirmatively state: 1) whether, following consultation with all other counsel, the change is opposed, and 2) specific reasons supporting a continuance (and if applicable an amended Case Schedule to re-open discovery.)
B. Filings made in the Clerk’s Office often require 4 – 6 weeks to physically get into the court file, or otherwise reach chambers. Accordingly, when urgent attention is genuinely needed please deliver time-stamped copies of motions along with a proposed Entry for the Judge’s signature to Chambers 8A.
Proposed continuance Entries in civil cases should contain blank lines for both a new Final Pretrial date and a new Trial date, plus any other deadline changes anticipated. Normally, if the trial date is postponed a Final Pre-trial will be scheduled for the week before trial. If there is no opposition to the continuance or new Case Schedule, submit the time-stamped Motion and an Agreed Entry approved by all parties to enable the Court to make a prompt determination. If counsel would like input as to new trial or pre-trial dates, they should consult each other, then place a conference call to the Bailiff or otherwise indicate their conflicting vacations or court assignments. Otherwise, new dates are assigned at the Court’s discretion.
C. Decisions regarding trial continuances or changes to the Case Schedule are made giving consideration to the complexity and age of the case, prior efforts of counsel to move the case to timely resolution, the amount in controversy, and the presumptive time limit for the case under Local Rule 37.
IV. MOTIONS AND MEMORANDA
A. Counsel must obtain leave of court prior to filing a Motion or Memorandum out of rule or beyond the motion deadline in the Case Schedule. Leave to file Motions late in a case may jeopardize the trial date and may be denied for that reason alone. Contact opposing counsel first; however, do not expect that a Stipulation among counsel will change any deadline absent court approval.
B. Page limits (Local Rule 12) serve a salutary purpose given the heavy docket. Ordinarily, counsel should edit tightly and live within the page limits.
To assist in meeting page limits, unless otherwise advised in a specific case counsel should assume no briefing is necessary on the legal standards for Motions filed under Civil Rules 12, 26, 37, 56 or 60(B).
In responding to a Civ. R. 56 Motion, it is valuable to have counsel initially and specifically identify precisely what, if any, material disputes of fact are asserted to exist that preclude summary judgment, with citations to the depositions or other parts of the record that contain such facts.
C. The Court reserves the right to disregard pages of memoranda beyond the limits set in the Local Rules, absent prior leave to file longer documents.
D. Civil Motions filed under ordinary practice with the Clerk’s office normally will, approximately 30 days after filing, be pulled and forwarded to chambers for review and decision. Motions under submission are prioritized taking into consideration the trial date or other time urgency. If you wish the Judge to receive a courtesy copy of Motion papers, please drop them off in the “In Box” for Courtroom 8A. If there is some unusual urgency about a particular Motion, please contact the Staff Attorney so the matter can be addressed.
E. Stipulations of fact are valuable tools for both pretrial motions and trials. Ordinarily, authentication of documents, lists of names of participants, dates contracts were made, meetings were held, or other events relevant to a suit occurred, and similar essentially undisputed background facts can be pinned down by stipulation to aid the court and jury in learning about a case without unnecessary delay, and without prejudice to anyone’s rights. Stipulations of uncontested facts are, therefore, strongly encouraged. Counsel should talk to each other about stipulations to simplify discovery, pretrial motion practice, and trial.
F. Note that, in addition to the Ohio Rules of Civil Procedure, Local Rule 47.01 requires counsel to make every effort to resolve discovery disputes prior to involving the court. This obligation is enforced in Courtroom 8A. The court also expects counsel to consult one another before filing motions in limine or other trial-related papers. A surprisingly high percentage of such motions are eliminated when counsel discuss the perceived issue, saving the parties’ money and the court valuable time.
V. CONFERENCES AND ORAL ARGUMENT
This court does not hold routine pretrial conferences in civil cases. Ordinarily the court does not hear oral argument on motions.
However, in cases of multiple parties or other complexity, or those seen as very likely to actually go to trial, the court will hold a status conference or Final Pretrial Conference upon request. The court will also hear oral argument on significant motions upon request through the Staff Attorney, or where the court deems it helpful. Before contacting the court it is useful for counsel to consult one another about potential hearing dates. Otherwise, the party requesting a conference or an oral argument will be asked to work out an agreeable date and advise the court before it is formally docketed.
Most Final Pretrial and Status conferences occur at or after 4 p.m. to allow trials to progress into late afternoon. Contested motion hearings requiring witnesses, or oral arguments on significant motions are usually scheduled for Fridays when the court is not in trial.
Normally the court expects out-of-town (including pro hoc vice) trial counsel to attend all court proceedings in person rather than by telephone, or using local counsel. (There is no conference telephone capability in Courtroom 8A.) Unless otherwise ordered, clients and insurance representatives need not attend pretrial or status conferences in person.
VI. PRE-TRIAL CONFERENCES – CIVIL CASES
Civil pretrial or status conferences are ordinarily conducted by the court.
Pre-trial Statements in accordance with Local Rule 41.04 are required at Final Pretrial Conferences held immediately before trial. Please bring a separate list of your trial Exhibits for the court’s use to the Final Pretrial Conference and at trial.
Several days before the Final Pretrial Conference, trial counsel must confer in person about their case. In addition to exchanging pre-marked trial Exhibits and exhibit lists, counsel should consider the jury charge specific to their case; whether they will waive a jury and/or have the case heard by the Magistrate and a jury; the minimum number of days anticipated to conclude the trial, and whether time limits will be useful to keep matters moving; the number of parties and witnesses participating in trial; any special scheduling needs; any motions to be addressed prior to commencing trial; and deposition transcripts or videotapes filed with the Clerk’s office that need to be retrieved, and for which evidentiary rulings must be made before editing and presentation during trial.
VII. TRIAL PROCEDURES
A. Ordinarily trials commence at 9:00 a.m. and recess for the day around 4:30 p.m. These hours can be altered somewhat to accommodate witness schedules. While guilty pleas are sometimes taken in criminal cases and, occasionally, other business of Courtroom 8A must be conducted during breaks or over the noon hour, once a jury is sworn we make it a priority to keep jury trials moving to completion. Please plan accordingly.
B. Motions in Limine are strongly discouraged. They may be filed only after discussion in good faith among counsel, and after counsel certify they have exhausted reasonable efforts to resolve the issue(s). The court seeks to avoid unnecessary motions over mundane matters, unfair gamesmanship, and the extra cost or delay sometimes caused by eleventh-hour motions.
C. Trial briefs are not required. Counsel may submit copies of key cases or short memoranda addressing novel legal issues, or highlighting specific concepts deemed essential to deciding the case or charging the jury.
D. The court reserves the right to exclude Exhibits not pre-marked and exchanged among trial counsel prior to trial.
F. The court gives an oral charge before opening statements to orient jurors about their role. The final jury charge is submitted in writing in all cases.
The court has a standard set of “boilerplate” instructions covering the burden of proof, credibility, rules for deliberating, and other matters common from case to case. However, trial counsel are required to consult and prepare case-specific portions of the charge. Merely saying “we’ll just use OJI” leaves far too much work to complete and may delay trial. Counsel are responsible for assisting the court with a sensible charge tailored to their specific case, and must do so in a timely fashion so that the charge can be completed without delaying the jury.
G. Local Rule 27.13(F) sets out “Rules on Voir Dire.” Because juror questionnaires are available, lengthy voir dire is usually unnecessary.
Do not argue your case. Do not ask for any “commitment” from prospective jurors in voir dire. Furthermore, individualized questioning of jurors is permitted only in response to an affirmative answer to a prior question, or as prompted by a response on a juror’s questionnaire.
The court usually empanels 8 jurors plus 2 alternates in civil cases. Consider a modified federal system, by stipulating to eliminate alternate jurors entirely, allowing all 10 jurors to deliberate (with a verdict from 8 of 10, or 7 of 9, or 6 of 8, if any jurors are lost during trial).
Challenges are normally exercised outside the presence of the jury.
H. Examination of witnesses beyond re-direct or re-cross is not permitted.
I. Stipulations should be presented as early as possible during trial to avoid unnecessary questioning thereafter.
J. Juror note taking is permitted.
K. Questions from jurors during trial are not permitted.
L. This court does not “qualify” witnesses as an “expert” so please do not ask during trial. If there are Daubert issues, counsel should address them with each other and, if appropriate, seek a Daubert hearing well prior to trial.
M. Display of Exhibits to the jury in opening statement, or before formal admission is permitted absent objection by opposing counsel. However, be certain to share all such material with other counsel before displaying it.
O. Trial counsel are expected to remain available on ten (10) minutes notice during jury deliberations.
P. The court sometimes imposes time limits on opening statements, voir dire, closing argument and the overall presentation of evidence where counsel are unable to closely manage the anticipated duration of their case. Jurors are ordinarily summoned for two-week period, and staying within that time frame is essential in all but the most complex trials. To further assist in case management at trial this court strongly discourages presentation of duplicative expert witnesses.
Q. Refer to participants, including your own client(s), as “Mr.” or “Ms.” or use other appropriate titles such as “”Dr.” Do not refer to adult witnesses by first names in open court.
VIII. RUNNERS
ALL proposed Entries should be place in the DROP BOX located in the back hallway next to 8A Chambers. Once signed, they will be returned to the table for pick up, filing with the clerk, and service on all parties or counsel.
It is counsel’s obligation to assure that the original document is filed with the Clerk, and that copies are promptly served upon all counsel or parties in the case. The only copies of Entries mailed by the Court are those generated by this Court.
If documents have been dropped off for the Judge’s review and do not reappear on the table within a day or two, this indicates that the Judge has not had an opportunity to review them due to a trial or other pressing matters. If, after a reasonable time you or your runner find it necessary to check with the Bailiff, please have the case number, case caption, title of document and date dropped off to assist us. Our Bailiff receives hundreds of documents every week and cannot be immediately familiar with each one that passes over her desk.
Ordinarily, please first check the table to see if an Entry has been signed—rather than calling the Bailiff. This will alleviate a backlog of calls on matters that can be performed by your runner.
IX. MEDIATION/ARBITRATION
If counsel desire to submit a case to mediation with Magistrate Harildstad, simply call our Bailiff and advise that counsel are in agreement. The paperwork will be prepared and forwarded to the proper offices. The court also encourages use of private mediators whose schedules may be more accommodating.
DO NOT wait until an approaching trial date to initially ask for mediation or other ADR. Few cases will be continued for this reason.
X. FORECLOSURES
Firms representing clients in foreclosure actions should be diligent in obtaining proper service. Please note that once a Judgment Entry is journalized the case is terminated from our active trial docket. This does not mean that it is dismissed.
XI. SETTLEMENTS
Consistent with Local Rule 22, Counsel must call the Bailiff as soon as possible to advise when a case has been settled. This Court normally has multiple trials scheduled every day; such notice enables the Court and attorneys in other pending cases to plan appropriately. Furthermore, prompt notice avoids unnecessary work on motions after a matter has already been settled.
Normally a formal notice is sent by chambers confirming settlement, and advising that counsel have 20 days to file a final Judgment or stipulation of dismissal. In matters requiring approval from the Probate Court or other unusual circumstances, more time will be allotted. If the final document is not timely received, the Court will dismiss the case pursuant to Local Rule 25.03.
XII. PHONE CALLS TO CHAMBERS
Once you have left a message on the Bailiff’s voice mail, please wait for a return call unless the matter truly is urgent.
If the Court is in trial or has a large criminal docket, it may be a few days before you receive a return call. Our Bailiff receives numerous calls on any given day, so please be patient. CALLING SEVERAL TIMES IS NOT NECESSARY. Usually our Bailiff is more readily available after 1:30 p.m.
XIII. MISCELLANEOUS MATTERS
A. Judge Frye does not favor “boilerplate” confidentiality/protective orders, particularly those that seek to place virtually all discovery material under some nondisclosure status even when agreed upon by counsel. Please recognize that material used for case-dispositive pretrial rulings or at trial is, ordinarily, a matter of public record. Furthermore, unless trade secrets or other truly private material is involved the extra delay involved in handling material filed here at the court “under seal” rarely is justified.
B. If in doubt about our procedures, please ask. In the long run you will probably avoid inconvenience for everyone. However, ex parte conversations with court staff must be limited to procedural matters.
C. While gifts at the Holidays are no doubt completely well intentioned they raise potential difficulties under ethics rules. To avoid such issues, please do not leave gifts for anyone in Courtroom 8A. |