Professional behavior best serves your clients and the Court. 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.
Ex Parte Communications
Counsel and unrepresented parties are reminded that Court staff are unable, both legally and ethically, to engage in unilateral, or ex parte communications, or to provide advice regarding legal rights or duties. Counsel should set up conference calls with opposing counsel and unrepresented parties before calling the Court. Opposing counsel and unrepresented parties should be “cc’d” on all emails with Court staff.
Parties can request status conferences through written motions or by contacting the Court's staff attorney. Normally, the Court will require the party and/or counsel requesting the conference to confer with other parties and/or counsel to find an agreeable date before setting the conference. Conferences are normally conducted in-person and in the mornings.
Telephone conferences are permissible if the Court's permission is obtained before the conference. However, it will be the parties' responsibility to arrange a conference call. Prompt attendance is always required
Civil pretrial or status conferences may be conducted by either the Court, the Magistrate, or the Staff Attorney. Final Pre-Trial Conferences are in-person.
Pursuant to Loc. R. 41.03, counsel shall come to the Pre-Trial fully prepared and authorized to negotiate toward a settlement of the case. If the real party in interest is an insurance company, common carrier, corporation, or other legal entity, then the representative appearing must have full authority to negotiate the claim or claims to the full extent of the plaintiff’s demand.
Pre-trial Statements in accordance with Local Rule 41.04 are required and must be filed on or before the day of the Final Pre-Trial Conference.
Prior to the Final Pretrial Conference trial counsel must confer about: their willingness to 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, and 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 presentation during trial.
In the event of the failure of counsel to appear, failure to be prepared, or other non-compliance with Loc. R. 41, the Court may dismiss the action for want of prosecution, enter default judgment, and/or impose sanctions.
A. It is necessary to obtain leave of court prior to filing a Motion or Memorandum out of rule or beyond the deadline set 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. 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 those page limits.
To assist in meeting page limits, unless otherwise advised in a specific case counsel should assume that no briefing is necessary on the legal standards for Motions filed under Civil Rules 12, 26, 37, 56 or 60. In responding to a Civil Rule 56 Motion, it is most useful for the court to have counsel initially and specifically identify precisely what, if any, material disputes of fact are asserted to exist.
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. Except as provided in Loc. Rs. 21 and 55, briefing of motions is controlled by Loc. R. 21. Accordingly, motions are generally not reviewed until 28 days after they are filed.
In the event that the matter requires more urgent attention, counsel shall promptly notify the Staff Attorney. The Court strongly encourages advance discussion with opposing counsel prior to filing time-sensitive motions to seek agreements/stipulations on both the subject of the motion and any briefing deadlines.
E. Stipulations of fact are valuable tools for both civil motions and civil trials.
Ordinarily, authentication of documents, lists of names of participants and dates of events relevant to a suit, and similarly undisputed background matters aid the court and jury in learning about a case with unnecessary delay, and without prejudice to any party’s rights. Stipulations of uncontested facts are strongly encouraged. Counsel should talk to each other about stipulations in order to simplify pretrial motion practice and trial.
The discovery process should be extra-judicial. Pursuant to Civ. R. 37, before filing any discovery motions, counsel shall make reasonable efforts to resolve the dispute. The Court generally will not hold conferences or hearings on discovery disputes without counsel first filing a motion and certifying therein the efforts to resolve the matter.
If counsel desire to submit their case to mediation with Magistrate Browning, simply call our Staff Attorney and advise that counsel are in agreement 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.
Consistent with Local Rule 22, Counsel must call the Staff Attorney or Secretary as soon as possible to advise when a case has been settled.
This Court normally has multiple trials scheduled every day and such notice will enable the Court and attorneys in other pending cases to plan appropriately. Furthermore, prompt notice avoids unnecessary work on a case by the court after the matter has already settled.
Normally a formal notice will be sent by chambers confirming settlement, and advising that counsel have 30 days to file a final Entry or stipulation of dismissal. In matters requiring approval from the Probate Court or other unusual circumstances, more time will be allotted. If the final Entry or stipulation is not timely received, the Court will dismiss the case from the active docket, pursuant to Local Rule 25.03.
Continuances or Amended Case Schedules
A. Motions to amend the 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.
B. Stipulations or “Agreed” Entries are not enough to postpone civil trials in Courtroom 4A 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. 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 enough time for pretrial proceedings, and try to assign a “firm” trial date.
Any such 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).
C. Proposed Entries 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 two weeks 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 an immediate determination. If counsel would like input as to new trial or pre-trial dates, they should place a conference call to the Staff Attorney or otherwise indicate their conflicting vacations or court assignments. Otherwise, new dates will be assigned at the Court’s discretion.
D. Decisions regarding trial continuances or changes to the Case Schedule are made solely by the Judge, giving consideration to the complexity and age of the case, plus prior efforts of counsel to move the case to timely resolution.
A. Ordinarily trials commence at 9:30 a.m. and recess for the day around 5:00 p.m. These hours can be altered somewhat to accommodate witness schedules. Pleas in criminal cases or other business of Courtroom 4A is sometimes conducted during the noon hour, but once a jury is sworn we make it a priority to keep jury trials moving to completion. Please plan accordingly.
B. Trial witnesses can be taken out of sequence for the convenience of the witness, subject to objection by opposing counsel.
C. Motions in Limine must be filed at least 7 days before trial absent a showing of extraordinary circumstances. Responses are due 3 days after the motion in limine is filed. Copies should be e-mailed to the Court (please call chambers for the appropriate e-mail address). Such motions are strongly discouraged. They may only be filed after discussion in good faith among counsel, and after counsel certify they have met and exhausted efforts to resolve the issue(s). The Court also seeks to avoid unfair gamesmanship, extra cost, or delay caused by eleventh-hour Motions in Limine.
D. Trial briefs are not required. Counsel may submit short memoranda addressing novel legal issues, or highlighting specific statutes or appellate decisions deemed central to deciding the case.
E. Trial Exhibits must be pre-marked, copied, and exchanged prior to the Final Pretrial Conference. Trial counsel are responsible for eliminating duplicate exhibits (and should consider appropriate use of “Joint Exhibit” designations) and discussing formal matters such as authenticity well before the start of trial.
Please bring a separate list of your trial Exhibits for the court’s use to trial.
The court reserves the right to exclude Exhibits not pre-marked and exchanged among trial counsel.
F. The final jury charge ordinarily is submitted in writing in all cases.
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. However, trial counsel are required to discuss and prepare the case-specific portions of the charge. Identify any changes from OJI or other standard form instructions.
Unless an earlier date is specified in a pretrial order in your case, all trial counsel are obligated to meet and confer in person about the case-specific parts of the jury charge no later than 7 business days before the start of trial. Merely saying “we’ll just use OJI” leaves far too much work to complete during trial. Counsel are responsible for assisting the court with a sensible and accurate charge, and must do so in a timely fashion so that the charge can be completed without delaying the jury.
G. Review Local Rule 27.13(F) for the “Rules on Voir Dire.” Because juror questionnaires are available, lengthy voir dire is unnecessary. Thirty to forty minutes per side normally is adequate.
Do not argue your case, or ask for a “commitment, or promise” from prospective jurors in voir dire. Furthermore, individualized questioning of jurors only is permitted 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.
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. The court does not rule on the qualification of expert witnesses absent specific objection to specific questions. If there are Daubert issues counsel should address them with each other and, barring agreement, with the court at the Final Pretrial Conference.
M. Display of Exhibits to the jury in opening statement, or before formal admission is permitted absent objection by opposing counsel. Again, be certain to share all such matters with all other counsel before displaying any exhibit.
O. Trial counsel are expected to be available on ten (10) minutes notice during jury deliberations. Always leave your cell phone number with the bailiff.
P. The court reserves the right to impose time limitations on the presentation of evidence where counsel are unable to manage the anticipated duration of their presentations. The court discourages presentation of duplicative expert witnesses.
Q. Refer to participants, including your own client(s), as “Mr.” or “Ms.” or other appropriate title such as “”Dr.” rather than by first names in open court.
Counsel are reminded of the obligations in Loc. R. 96 regarding title insurance. Firms representing clients in foreclosure actions should 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. Please see attached Instructions to Counsel on Foreclosure Cases.