Civil Practice Guidelines

Judge Millers' case management conferences may be held telephonically upon the parties’ agreement and request to the Court.  All other conferences or hearings will be in person unless otherwise ordered.

I.       General

Civil practice in Courtroom 5A is governed by the Ohio Rules of Civil Procedure, Local Rules of this Court, and these Civil Practice Guidelines. Counsel and unrepresented parties are expected to know these rules and guidelines and are expected to abide by them.

II.      Ex Parte Communications

A.     Counsel and unrepresented parties are reminded that Court Staff are unable, both legally and ethically, to engage in unilateral (or ex parte) communications.

B.     Counsel and unrepresented parties are reminded that Court Staff cannot, and will not, provide legal advice.

III.     Case Scheduling

A.     If a party wishes to change a date in the controlling case schedule, that party must move to amend the controlling case schedule. The case schedule may not be amended by stipulation of the parties.

B.     The Court prefers joint or unopposed motions to amend the case schedule. They are ripe immediately upon receipt by the Court, and the Court can rule upon them immediately. An opposed motion to amend a case schedule will not be ripe until at least the time for response (and maybe even reply) has passed. See Civ. R. 6(C)(1); Local Rule 21.01.

IV.      Conferences

A.      Case Management Conferences (CMCs)

In certain civil actions assigned to Courtroom 5A, the Clerk’s Original Case Schedule will include a Case Management Conference (CMC) with the Court that is scheduled early in the case. After a CMC, the Court will enter a Case Management Order (CMO) that outlines any matters discussed, including a new case schedule and a formal discovery plan. CMCs may be conducted by the Judge, the Magistrate, or the Staff Attorney. CMCs will typically be scheduled for times in the afternoon. By default, CMCs are in person and in chambers, but parties are encouraged to request that the CMC in their case be conducted by telephone. In order to request a CMC by telephone, the requesting party must do the following:

  1. Contact all counsel and unrepresented parties to obtain global consent to a telephone CMC at least 24 hours prior to the scheduled CMC;
  2. Email the Staff Attorney (with all parties copied) to confirm the global consent;
  3. Provide a call-in number to the Court and to all parties, reserving at least 1 hour for telephone conference as several conferences may be scheduled for the day.

The rules governing CMCs are set forth in Civ. R. 16(A)–(C), Civ. R. 26(F), and Local Rule 16.01. Counsel and unrepresented parties are expected to be familiar with those rules, including the 2020 amendments thereto. Nonetheless, the Court wishes to emphasize the following within these Civil Practice Guidelines:

1.      Parties’ Rule 26(F) Conferences

The parties must meet, confer, and discuss the matters set forth in Civ. R. 26(F)(2), (3) no later than 21 days before the CMC. This is a conference among the parties, and the Court itself does not participate. If one or more parties refuse to participate in the conference, the remaining parties are not absolved of their obligation to do so.

2.      Parties’ Joint Rule 26(F) Reports

After their Rule 26(F) Conference, the parties must jointly prepare and file a report with the Court regarding the matters set forth in Civ. R. 26(F)(2), (3). A template for a “Rule 26(F) Conference Report and Proposed Joint Discovery Plan” can be found on the Court’s website with Local Rule 16. Although the rule states that the Rule 26(F) report must be filed within 14 days after the parties’ Rule 26(F) Conference, the Court insists that Rule 26(F) reports be filed with the Court no later than 7 days before the CMC. If one or more parties refuse to participate in the Rule 26(F) conference or in preparing the Rule 26(F) report, the remaining parties must still jointly—and timely—file the report.

B.      Final Pretrial Conferences (FPTs)

In certain civil actions assigned to Courtroom 5A, there will be Final Pretrial (FPT) Conferences. FPTs will be conducted by the Judge. They will typically be scheduled for times in the afternoon. Unless otherwise ordered by the Court, FPTs will be conducted in person (either in chambers or in the courtroom).

The rules governing FPTs are set forth in Civ. R. 16(E) and Local Rule 16.04. Counsel and unrepresented parties are expected to be familiar with those rules, but the Court wishes to emphasize the following within these Civil Practice Guidelines:

1.      Parties’ Joint FPT Conferences Among the Parties

The parties must meet, confer, and discuss the case and the potential trial at some time prior to the scheduled FPT. The Court strongly encourages parties complete their joint conference no later than 21 days before the FPT. This joint conference is a conference among the parties, and the Court does not participate. If one or more parties refuse to participate in this joint conference, the remaining parties are not absolved of their obligation to do so.

2.      Parties’ Joint FPT Statements

The parties must also file a Joint FPT Statement no later than 7 days prior to the FPT. If one or more parties refuse to participate in the joint conference or in preparing the statement, the remaining parties must still jointly—and timely—file the statement. The Joint FPT Statement shall include the following:

a.     A clear identification of Chief Trial Counsel for each party. Chief Trial Counsel shall be fully authorized to act and negotiate on behalf of their party;

b.     A detailed explanation of the factual and issues raised by the case and of the parties’ respective positions with respect to those issues;

c.     A detailed explanation of any evidentiary questions raised by the case and of the parties’ respective positions with respect to those questions;

d.     A listing of all witnesses genuinely expected to testify;

e.     A listing of all exhibits genuinely expected to be offered, excluding those intended solely for impeachment, illustration, or rebuttal;

f.     An itemization of all special damages to be claimed;

g.     A statement that the parties do or do not consent to try the case to a Magistrate and a jury;

h.    A description of any trial procedures requested, including:

(A)     Whether the case is one in which issues should be bifurcated;

(B)     Whether a jury view will be requested;

(C)     Whether a jury trial, if previously demanded, will now be waived; and

(D)     The estimated number of days required for trial;

i.     A statement of the status of settlement negotiations.

3.     The parties must come to the FPT fully prepared. Being prepared includes participating in the Parties’ Joint FPT Conference and in preparing the Parties’ Joint FPT Statement. The parties must also come to the FPT fully authorized to negotiate settlement. If the real party in interest is an insurance company, common carrier, corporation, or other legal entity, the representative appearing at the FPT Conference must have full settlement authority. 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; or (c) other sanctions as the Court deems appropriate.

C.     Ad Hoc Conferences (aka Status Conferences)

The Court welcomes conferences with the parties on an as-needed basis. Parties can request ad hoc status conferences by contacting the Court's staff attorney (preferably by email).

Parties seeking such an ad hoc conference should first confer amongst themselves to propose an agreeable date (or dates) to the Court. Ad hoc conferences may be conducted by the Judge, the Magistrate, or the Staff Attorney. They will typically be scheduled for times in the afternoon.

V.     Discovery

Civ. R. 26(C), Civ. R. 37(A)(1), Civ. R. 45(C)(2), and Local Rule 26.01 all require parties to make reasonable efforts to resolve their discovery disputes by agreement prior to filing motions with the Court. These obligations are enforced in Courtroom 5A. If a discovery dispute has developed between the parties, and the parties cannot resolve it themselves after a genuine and reasonable effort, the parties should contact the Court and request an ad hoc status conference. Generally, if a discovery motion is filed before such a conference is requested, the Court will presume that the movant has not engaged in sufficient efforts to resolve the matter informally.

Even when 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. The parties are reminded that material used for case dispositive pre-trial rulings or during the trial will ordinarily be a matter of public record.

VI.     Motions Practice

A.     Extensions

Deadlines for certain types of motions are set forth in the Ohio Rules of Civil Procedure, the Local Rules of this Court, case scheduling orders. The general briefing schedule for 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. Motions deadlines and briefing schedules may not be changed by stipulation of the parties.

B.     Urgent Motions

As noted above, timing with respect to motions practice is generally governed by Civ. R. 6(C)(1). That means, absent extensions to the briefing schedule, an unopposed motion will not likely ripen for a decision until at least 14 (maybe 21) days after the motion has been filed. If a party seeks faster action from the Court, the Court strongly encourages that party to discuss the issue with opposing counsel and (if possible) file a joint or unopposed motion with a proposed entry.

Parties are also reminded that, when a filing is submitted to the Clerk’s Office, that filing does not immediately reach Courtroom 5A and could take several days to be received by the Court. Consider this when filing a motion for which urgent attention is necessary. If such attention is genuinely necessary, email the Court’s Secretary or 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.

C.     Contacting the Court

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. The parties are discouraged from contacting Court Staff with such inquiries.  

D.     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. The Court reminds the parties that, under Local Rule 12.03, a motion for leave to file a long brief must be filed no later than 7 days prior to the time for filing the brief.

VII.     Mediation

If counsel desire to submit their case with the Magistrate, simply call the Court’s Staff Attorney and let them know. The Court also encourages the 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. 

VIII.     Trial Procedures

A.     The Court will try to commence civil trials at 9:30 a.m., and will recess at around 4:30 p.m.   Because it is difficult to time out an exact stopping point for any day, parties are advised to plan on a 4:30 p.m. recess and to be prepared for a hard stop at 5:00 p.m. The jurors’ first lunch break will be 90 minutes so that jurors can acclimate themselves to the various offerings around the courthouse. After that, lunch breaks will be 75 minutes. Of course, these hours of operation can be altered to accommodate jurors and witnesses. Other business of the Court may be conducted during breaks, but once a jury is sworn, the Court makes it a priority to keep the trial moving to completion. Please plan accordingly.

B.     Trial witnesses can be taken out of sequence for the convenience of the witnesses, subject to objection by opposing counsel.

C.     Motions in Limine (MIL) must be filed at least 7 days before trial. Late MILs will not be considered without a showing of extraordinary circumstances and excusable neglect.

MIL Responses are due 3 days after the motion is filed. There are no replies.

Once it is filed, copies of the MIL briefing should be emailed to the Court’s Staff Attorney immediately.

MILs should be filed only after there has been a good-faith discussion of the issues among the parties, and the moving party must certify they have exhausted all reasonable efforts to resolve the issue(s) without a motion.

D.     Trial Briefs are not required. Parties may submit short memoranda addressing novel legal issues or highlighting specific statutes or appellate decisions deemed central to deciding important substantive or evidentiary issues in the case.

E.     Trial Exhibits must be pre-marked, copied, and exchanged prior to the FPT. Trial counsel are responsible for eliminating duplicate exhibits (and should consider appropriate use of “Joint Exhibit” designations). Formal matters such as authenticity and foundation should be discussed well before the start of the trial.

Parties must bring a separate list of their Trial Exhibits for the Court's use during trial.

The Court reserves the right to exclude Trial Exhibits that have not been pre-marked or exchanged among the parties prior to the FPT.

F.     The Final Jury Instruction will be submitted in writing to the Jury 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. Nonetheless, the parties are required to discuss and prepare the case-specific portions of the jury instructions. In preparing those instructions, the parties should identify the source material and any changes they have made therefrom.

Unless an earlier date is specified elsewhere, the parties are required to meet and confer in person about the case-specific parts of the jury instruction no later than 3 business days prior to the start of trial. Merely saying “we will just use OJI” or something of similar import is not a meeting or a conference, and it leaves far too much work to be completed during the trial itself. The parties are responsible for assisting the Court with a sensible and accurate jury instruction, and the Court expects them to provide their proposed instructions to the Court no later than the first day of trial. Of course,  changes to the proposed instructions are likely to be made as the trial unfolds, but making an honest and timely effort to prepare the charge prior to trial ensures that the final jury instruction will be completed without any delay to the jury.

G.     The parties are asked to review Local Rule 27.13 (F) for general “Rules on Voir Dire.”

Do not argue your case to the jury panel during voir dire. Do not ask for a “commitment” or a “promise” from a prospective juror during voir dire. Individualized questioning of jurors is permitted only in response to an affirmative answer to a more generalized question or as prompted by a response on the juror’s questionnaire.

H.     The Court usually empanels 8 regular jurors and 2 alternate jurors in a civil case. Before the prospective jurors enter the courtroom, two seats within the jury box are randomly chosen by the parties. Those seats designate the alternate jurors. Although the Court and the parties will know who the alternate jurors are, the jurors themselves will not be told who among them is an alternate until it is time to begin deliberation.

I.     Examination of witnesses beyond re-cross will generally not be permitted.

J.     Juror notetaking will be allowed, but jurors may take notes only during the presentation of evidence.

K.     Juror questioning during trial will not be allowed.

L.     The Court will not affirmatively “qualify” any witness as an “expert.”

If there is an admissibility challenge to the opinion testimony of a proffered expert witness, that challenge should be raised as early as possible. If such an issue arises only after the trial has begun, the challenging party must alert the Court to voir dire the witness and to make it admissibility determination outside the presence of the jury.

M.     Absent an objection, a party will be permitted to display exhibits to the jury in opening statement or before a formal admission is permitted. Again, be certain to share all such matters with the opposition before displaying any exhibit.

N.     Trial Counsel or unrepresented parties are expected to be available on ten minutes notice during jury deliberations. Trial Counsel or unrepresented parties should always leave their cell phones number with the Court’s Bailiff.

O.     The Court reserves the right to impose time limits on voir dire, opening statements, closing argument, and the overall presentation of evidence. Jurors are ordinarily summoned for a one-week/one-trial period. Staying within that time frame is essential in all but the most complex trials.  

P.     The parties are to refer to all participants as "Mr.", "Ms.", “Dr.” or some other appropriate title rather than by their first names in open court. This is true for everyone, including attorneys referring to their own clients.  

IX.     Settlement Conferences

A.     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. When notice of settlement received, the Court will create an entry giving the parties 30 days to file an entry of dismissal of the case. This time period may be extended for good cause shown.