UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
Choose an item. DIVISION
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Plaintiffs, }
}
v. }
} Case No.: Case Number.
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}
Defendants. }
}
PRETRIAL SCHEDULING ORDER
On _____, the court held a pretrial scheduling conference in this matter.
Appearing at the conference were ___.
Consistent with the discussion at the conference, the court SETS the
following deadlines.
I. Jury/Bench Trial
The jury/bench trial will commence on ___. The trial is expected to take ___
days.
II. Witnesses
The parties must file witness lists on or before ____.
1. Live Witnesses
a. Unless specifically agreed by the parties in writing or allowed by the court for
good cause shown, the parties shall be precluded from offering substantive
evidence through any witness not included on the party’s witness list. The listing
of a witness does not commit a party to have that witness available at trial or to
call that witness to testify, but it does preclude the party from objecting to the
presentation of that witness’s testimony by another party.
b. Objections to live witnesses are due on or before ____.
c. Objections shall be stated with specificity and cite legal authority. Objections not
made within such time, other than objections under Federal Rule of Evidence 402
and 403, shall be deemed waived in the absence of good cause shown.
2. Depositions
a. The court will accept the parties’ written agreement to use a deposition at trial
even though the witness is available. In the absence of such an agreement, parties
must comply with Federal Rule of Civil Procedure 32.
b. If a witness will be presented by deposition, the party designating that witness
must provide the courtroom deputy and opposing counsel with an electronic, text
searchable copy of the deposition with the proffered trial testimony highlighted.
This submission shall be made at the same time as the filing of the witness list.
c. An opposing party may serve an objection to the use of deposition testimony
under Federal Rules of Civil Procedure 32 or 26(a)(3)(B), a list of additional
pages of the deposition to be used, and/or objections to specific designations on
or before ____.
d. Objections shall be stated with specificity and cite legal authority. Objections not
made within such time, other than objections under Federal Rule of Evidence 402
and 403, shall be deemed waived in the absence of good cause shown.
3. Videotape Depositions
Where a party wishes to present deposition testimony by videotape at trial, it
must follow the procedure set out above in § 2. Once cross designations and
objections are resolved, the party offering the videotape at trial shall edit the video
to include only those portions of the deposition the jury will view. The final video
exhibit shall be produced to opposing counsel the Thursday before trial. Any
objections to the final video should be presented to the court the Friday before trial.
4. Bench Trials
In a non-jury trial, depositions offered as a trial exhibit shall attach to the front
of the exhibit a summary of what each party intends to prove by the deposition
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testimony with citations to the line and page. The exhibit shall highlight all lines
proffered by any parties.
III. Exhibits
1. Pretrial Exhibit Lists
All parties must file exhibit lists using the court approved form (Word version
available on the court website at http://www.alnd.uscourts.gov/clerks-office-forms)
on or before ____. A description of a document on an exhibit list is provided only
for identification; it is not an admission or otherwise evidence regarding the
document. The court urges counsel to be judicious in determining which documents
are relevant to necessary elements of the case.
Objections to exhibit lists must be filed on or before ____. Objections shall
be stated with specificity and cite legal authority. The relevant evidence upon which
the objection is based shall be attached to the objection as an exhibit.
The parties are reminded that the Judiciary’s privacy policy restricts the
publication of certain personal data in documents filed with the court. The policy
requires limiting Social Security and financial account numbers to the last four
digits, using only initials for the names of minor children, and limiting dates of birth
to the year.
The parties are reminded that they will not be allowed to use at trial any
exhibit not disclosed in accordance with Federal Rules of Civil Procedure 26(a)
or 26(e), unless the failure was substantially justified or the offering party can
show that its failure to disclose was harmless. See Fed. R. Civ. P. 37(c)(1).
2. Demonstratives
Demonstratives do not need to be included on a party’s pretrial exhibit list.
Plaintiff’s demonstratives will be identified with the prefix “PD,” starting with PD-
1. Defendant’s demonstratives will be identified with the prefix “DD,” starting with
DD-1.
Except in the case of closing demonstratives, parties must exchange all
demonstratives by 6:30 p.m. the Wednesday before trial. Any objections must be
served within 24 hours. The parties must attempt to resolve objections through a
meet and confer. If there are still outstanding objections, the objecting party must
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file a motion no later than 9:00 a.m. Friday morning. The parties must provide an
exact color copy of the demonstrative as an exhibit to any motion filed.
In the case of closing demonstratives, parties must exchange demonstratives
by 6:30 p.m. the night before the session in which they will be used. Any objections
must be served by 8:30 p.m. The parties must attempt to resolve objections through
a meet and confer. If there are still outstanding objections, the objecting party must
file a motion no later than 6:00 a.m. the following morning. The parties must provide
the demonstrative as an exhibit to the motion.
3. Joint Trial Exhibit List
Counsel shall be prepared to argue all outstanding objections at the pretrial
conference.
The parties shall provide two flash drives containing a joint trial exhibit list
and separate files consisting of each premarked exhibit to the Courtroom Deputy
contemporaneously with the submission of their proposed pretrial order. The Trial
Exhibit List shall comply with § IV of the Civil Administrative Procedures Manual
for CM/ECF (https://www.alnd.uscourts.gov/sites/alnd/files/AL-N%20Civil%20
Administrative%20Procedures%20Manual.Revision.05-18-2021.pdf) and Judge
Axon’s trial exhibit list requirements contained in Attachment A. The parties shall
also send a Word version of the trial exhibit list to the chambers inbox at
[email protected].
4. Motions in Limine
Motions in limine must be filed on or before ____ Each motion must be
accompanied by a supporting memorandum. The court expects the parties to file a
separate motion in limine for each issue or piece of evidence a party seeks to exclude.
The parties should not file an omnibus motion. If the court would need to review the
evidence to rule on a motion in limine, the party seeking exclusion must attach the
evidence that the party seeks to exclude.
As to each matter counsel seeks to exclude, counsel shall indicate whether the
exclusion is “opposed” or “unopposed” by counsel for the other side. Parties must
meet and confer about their opposition to each motion in limine. Parties are
encouraged to resolve evidentiary issues by stipulation whenever possible.
Responses in opposition to the motions in limine must be filed on or before ____.
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Within three days after briefing is complete, the parties must jointly provide
the court with an electronic file with separate folders containing text searchable
copies of: (1) a motion in limine; (2) the response to that motion in limine; and
(3) any corresponding exhibits separated by exhibit slipsheets.
5. Damages
On or before ___, each party claiming or seeking damages or equitable relief
must file a list itemizing all damages and equitable relief being claimed or sought.
The list must show the amount requested and, where applicable, the method and
basis of computation. Any objections to damages must be filed within two weeks of
service.
6. Sealed Evidence
If a party anticipates presenting evidence that they contend must be sealed,
the parties must file a notice notifying the court on or before ____. If the court has
previously sealed the evidence in the case (e.g., as part of the summary judgment
evidentiary record), the parties should include that information in their notice to the
court but do not have to provide unredacted versions of the documents again.
Where a party has not previously moved to seal the evidence in the case, the
party should file a motion to seal on or before ____________ and provide chambers
with a copy of the exhibit without any redaction. The party moving to seal the exhibit
must follow the procedure outlined in the Civil Administrative Procedures Manual
for CM/ECF (https://www.alnd.uscourts.gov/sites/alnd/files/AL-N%20Civil%20
Administrative%20Procedures%20Manual.Revision.05-18-2021.pdf).
All parties are reminded that there is a presumptive constitutional public right
of access to judicial records. Comm’r, Ala. Dep’t of Corr. v. Advance Loc. Media,
LLC, 918 F.3d 1161, 1166 (11th Cir. 2019); Chicago Tribune Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310 (11th Cir. 2001). The parties
cannot overcome that presumption by agreeing in a protective order, or through an
unopposed motion to seal, that the document may be filed under seal. See, e.g.,
Advance Loc. Media, LLC, 918 F.3d at 1166. Nor does a designation of a document
as confidential, standing alone, sustain the burden of establishing good cause. To
overcome the presumption, the party moving to seal must established that good
cause warrants sealing the record. See id. at 1169; Callahan v. United Network for
Organ Sharing, 17 F.4th 1356, 1363 (11th Cir. 2021).
Objections are to a motion to seal are due on or before ____.
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IV. Jury Charges and Verdict Form
On or before ____, the parties shall file a single, joint proposed jury charge,
including all necessary instructions, or definitions applicable to the specific issues
of the case.
a. Each requested instruction must be numbered and presented on a separate sheet
of paper with authority cited.
b. In their joint proposed jury materials, counsel are to include all necessary
instructions or definitions, specifically including: (1) the elements of each cause
of action and defense asserted; (2) legal definitions required by the jury; (3) items
of damages; and (4) methods of calculation of damages. Counsel are to use the
Eleventh Circuit Pattern Jury Instructions, or appropriate state pattern jury
instructions, as modified by case law or statutory amendments, wherever
possible. Any deviations must be identified and accompanied with legal
authorities for the proposed deviation.
c. Even if the parties, in good faith, cannot agree on all instructions, definitions or
questions, the parties should nonetheless submit a single, unified charge. Each
disputed instruction, definition, or question should be set out in bold type,
underlined or italicized, and identified as disputed. Each disputed item should be
labeled to show which party is requesting the disputed language. Accompanying
each instruction shall be all authority or related materials upon which each party
relies. The parties shall email the unified charge in Word format, to the
chambers email address at
[email protected].
d. Together with the joint proposed jury charge, the parties must file a joint
proposed verdict form. The court expects that shortly after the close of
evidence, the parties will submit any amendments to the proposed jury charge
and verdict form required by the evidence presented at trial.
V. Proposed Voir Dire Questions
The court conducts a preliminary voir dire before the parties’ voir dire. To
assist with this process, the parties should provide the court with a list of people,
places, and institutions that are likely to be mentioned during the trial. The questions
posed by the court are contained in Attachment B. To the extent that the parties all
agree on additional, more specific questions they would like the court to ask, the
questions should be submitted on the Friday before trial by 5:00 p.m.
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VI. Final Pretrial Conference
The court sets a final pretrial conference for ____. During the pretrial
conference, the parties shall be prepared to present argument on all outstanding
motions and objections. Within two days after the pretrial conference, the parties
shall submit to the chambers email address at
[email protected] a
proposed pretrial order in Word format that substantially complies with the draft
pretrial order contained in Attachment C .
VII. Trial Briefs
To the extent necessary, the court will grant leave to file a trial brief at the
pretrial conference.
VIII. Guidelines for Conduct of Trials
The parties must read and comply fully with each provision contained in
Attachment D – Guidelines for Conduct of Trials.
DONE and ORDERED this
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Attachment A
JUDGE AXON’S TRIAL EXHIBIT LIST REQUIREMENTS
Judge Axon requires that all parties submit a joint exhibit list to be used at
trial. Please be sure to:
1. Number each exhibit sequentially.
2. The numbers for each exhibit should be assigned in the following order:
a. Exhibits to which admission is stipulated;
b. Plaintiff’s exhibits;
c. Defendant’s exhibits.
3. Mark each exhibit as follows:
Case Number
[Date] Jury Trial
Exhibit No. ____
4. Prepare a PDF of each individual exhibit. Two flash drives containing
individual PDFs of each exhibit, named according to its exhibit number,
should be provided to the courtroom deputy on the day the parties submit
their proposed pretrial order.
Attachment B
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DIVISION
, }
Plaintiffs, }
}
v. }
} Case No.:
, }
}
Defendants. }
}
VOIR DIRE
The court will ask the following questions to each member of the venire:
1. Community/City where you presently live
a. Other communities where you have lived in the past
5 years
2. Present Employment
a. Name of Employer
b. Where
c. What Duties
d. How Long Employed
e. Other Employment in the last 5 years
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3. Education
4. Marital Status
a. Spouse’s Employment
b. What Duties
c. How long
5. Adult Children within Northern District
a. Employment
b. Spouse/Spouse’s Employment
6. Your experience as a PARTY in a court case
a. Defendant/Plaintiff
b. Jury Verdict
7. Your experience as a WITNESS in a court case
a. Type of case
b. Defense/Plaintiff
c. Year
8. Your experience as a JUROR in a court case
a. Type of case
b. Defense/Plaintiff
c. Year
9. Typical source of news
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10. Do you have a bumper sticker on your car?
a. Describe bumper sticker
11. Are you a member of an organization or club that is not
affiliated with your employment/profession?
a. Name of organization
b. Leadership roles
12. Anyone related by blood or marriage to the Plaintiff? (If
Corp., is anyone or their immediate family an officer,
director, stockholder, or employee of Plaintiff?)
a. Does anyone know the Plaintiff?
13. Anyone related by blood or marriage to the Plaintiff’s
counsel? (If Corp., is anyone or their immediate family an
officer, director, stockholder, or employee of Plaintiff’s
counsel?)
a. Does anyone know Plaintiff’s counsel?
14. Anyone related by blood or marriage to the Defendant? (If
Corp., is anyone or their immediate family an officer,
director, stockholder, or employee of Defendant?)
a. Does anyone know the Defendant?
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15. Anyone related by blood or marriage to Defendant’s
counsel? (If Corp., is anyone or their immediate family an
officer, director, stockholder, or employee of Defendant’s
counsel?)
a. Does anyone know Defendant’s counsel?
16. Have you or anyone in your immediate family been
represented by any of the attorneys here?
17. Have you or anyone in your immediate family retained
[the attorneys’ law firms]?
18. Anyone who knows me?
19. Is there anyone here who knows of any reason why you
cannot be fair to both sides?
20. [insert questions any party wishes the court to ask and to
which there are no objections]
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Attachment C
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
Choose an item. DIVISION
, }
Plaintiffs, }
}
v. }
} Case No.: Case Number.
, }
}
Defendants. }
}
PRETRIAL ORDER
The court held the final pretrial conference in this case on ____. Consistent
with the discussions held on the record at the conference, the court ENTERS the
following rulings.
1. Parties and Trial Counsel. Any remaining fictitious parties are hereby
STRICKEN. The parties and designated trial counsel are correctly named as set out
below: [Include a line and designation for each party in the case.]
Parties: Trial Counsel:
[Name of the Plaintiff(s] [Name of Counsel]
[Name of the Defendant(s)] [Name of Counsel]
2. Nature of the Action, Jurisdiction and Venue.
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(a) The nature of this action is as follows: [For example,
employment discrimination; Fair Labor Standard Act, breach of
contract, etc.]
(b) The court has subject matter jurisdiction of this action under [List
each statute, rule or case claimed to authorize the court’s subject
matter jurisdiction in this action].
(c) All jurisdictional and procedural requirements prerequisite to
maintaining this action [have/have not] been met.
(d) Personal jurisdiction and/or venue [are/are not] contested. [If
personal jurisdiction or venue is contested, briefly set out the
relevant arguments.]
3. Pleadings. The following pleadings have been allowed:
[List pleadings in the order in which they were filed and allowed. Do not include
pleadings that have been stricken or otherwise disallowed. See Fed. R. Civ. P.
7(a) for a list of allowable pleadings.]
4. Statement of the Case.
[Taken from statement of facts submitted by parties before pretrial
scheduling conference]
5. Contentions of the Parties
[Taken from the contentions submitted by parties before the pretrial
scheduling conference .]
(a) Plaintiff’s Contentions
(b) Defendant’s Contentions
6. Stipulated Facts The parties stipulate to the facts set out in Exhibit A to
this Pretrial Order. [In a separate document identified as Exhibit A, please
separate out each stipulated fact in numbered paragraphs. These facts will be
read to the jury in advance of opening argument]
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7. Trial Exhibit List. Consistent with § III(3) of the Pretrial Scheduling
Order, a thumb drives containing a .pdf document of the joint trial exhibit list and a
separate file for each premarked exhibit has been submitted to the Courtroom
Deputy. Additionally, a Word version of the joint trial exhibit list has been submitted
to chambers via email. The joint trial exhibit list is incorporated here by reference.
8. Witness List [identify all witnesses and separate into the following
categories]
(a) Live Witnesses
(b) Deposition Testimony
(c) Video Deposition
9. Damages
The damages sought in this action are as follows: [using the same format as
plaintiff’s initial damages submission, provide the list of damages and equitable
relief claimed with any necessary revisions to reflect rulings made during the
pretrial conference].
10. Proposed Jury Instructions. The proposed jury instructions are set out
in Exhibit B. The parties reserve all objections set out therein.
10. Voir Dire Questions. The parties do not object to the court asking the
questions set out in Exhibit C during voir dire. [Exhibit C should include all
questions set out in Attachment B to the pretrial scheduling order along with
any additional questions the parties agree on]
DONE and ENTERED this ____
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Attachment D
GUIDELINES FOR CONDUCT OF TRIALS
These guidelines reflect the standard practices of this court in the trial of
cases. They do not alter the rules of civil or criminal procedure, the rules of
evidence, or local rules.
1. Hours. Trials ordinarily commence at 9:00 a.m. and continue until
approximately 5:00 p.m., Mondays through Fridays.
a. Punctuality. You, your client, and your witnesses should be
present and ready to proceed promptly at the appointed time, both
at the beginning of the day and after recesses. Counsel should be
present at the courthouse at least 30 minutes before the beginning
of each trial day to avoid delays and to be available to discuss
unanticipated problems.
b. Recesses. A witness whose examination has not been
completed at the time of a recess or adjournment should be back
in the witness box at the time trial is scheduled to resume.
c. Requests for changes. Make known to the court as soon as can
be anticipated any requests for changes in the trial schedule,
including those relating to religious holidays or arising because
of unavailability of witnesses.
d. Conferences. In jury cases, the judge may hold a brief
conference in chambers at the end of the trial day or before the
trial commences or resumes, or both, at which time counsel can
discuss the schedule of witnesses and documents and any
anticipated evidentiary problems. Alert the court reporter if you
want to have some motion, argument, proffer, or other matter
placed on the record during the conference.
e. Settlement discussions. Although settlements should occur to
the extent possible before the trial is scheduled to begin, counsel
are encouraged to discuss settlement as the trial progresses.
These discussions should, however, ordinarily be conducted
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during recesses and adjournments. Do not assume that the court
will delay the start or resumption of trial for such discussions.
Advise the court if at any point you believe the court's assistance
might be helpful in arriving at a settlement.
2. Selection of jury.
a. Voir Dire. At the conclusion of general voir dire by the court,
counsel will be allowed 20 minutes per party to conduct their own
voir dire.
b. Size. The size of the jury in civil trials ranges from six to
twelve, taking into account such factors as the expected length of
trial and the number of jurors available for that and other
scheduled trials. Absent special agreement by the parties, only a
unanimous verdict of all selected jurors not excused or
discharged for good cause may be received.
c. Peremptory challenges. The number of peremptory challenges
to be allowed will depend upon (1) the number of jurors not
excused or challenged for cause and (2) the size of the jury to be
selected. For example, if 18 jurors remain after any challenges
for cause, the court might allow each side five peremptory
challenges to select a jury of 8 or might allow each side four
peremptory challenges to select a jury of 10. Peremptory
challenges are exercised by indicating on a form (provided by the
court) the name and juror number of the person(s) so challenged.
When completed, these forms are shown to the court and
opposing counsel at the bench, outside the hearing of the panel;
at this time, the court can consider any "Batson" issues. Subject
to consideration of any "Batson" issues, the peremptory
challenges shown on the lists will be accepted by the court. Jurors
not peremptorily challenged by either side will, in the order in
which they were presented, be deemed as selected, up to the
number of jurors previously determined by the court. As an
example, for a jury of eight, the first 8 jurors not peremptorily
challenged by either side will constitute the jury.
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3. Opening statements. Opening statements are limited to 20 minutes per party.
Although a description of the basic claims and defenses and of the principal
factual disputes between the parties is usually helpful, do not be argumentative
and do not in jury cases refer to disputes about questions of law. In non-jury cases,
opening statements are frequently omitted or limited to stating what claims and
defenses are being pursued and what witnesses will be called.
4. Witnesses. Cooperative witnesses not immediately needed should, to the extent
practical, be placed “on call.” However, you remain responsible for having
sufficient witnesses available in court so that, absent developments that could not
have been reasonably anticipated, the trial may proceed during the normal trial
hours without the need for adjournments or lengthy recesses to obtain further
witnesses. Since defendants should be ready to proceed with their evidence
promptly at the conclusion of the plaintiff’s presentation, plaintiff’s counsel
should keep defendants’ counsel advised as to when they expect to complete their
presentation of evidence.
a. Order. Counsel are expected to cooperate in resolving
scheduling problems, including agreement in most circumstances
for a witness to be called out of the normal order, even if the
testimony of another witness is interrupted. Such
accommodations are the norm for physicians and other similar
professionals called as witnesses and may be appropriate for
other witnesses with personal, family, or occupational conflicts.
Counsel are also expected to cooperate in placing "on call" those
employees of another party whose absence would disrupt such
party's normal business activities.
b. Production. Do not ask opposing counsel to produce a witness
or a document in a way that might suggest to the jury that such
counsel would be concealing evidence if the witness or document
is not produced. Address such requests to opposing counsel (or,
if necessary, to the court) in a manner that will not be heard by
the jury.
c. Oaths. The courtroom deputy ordinarily administers an
oath/affirmation to the witnesses and immediately asks their
name and place of residence. If you know that the standard
questions might be inappropriate (for example, the witness is in
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prison), so advise the deputy before the witness is called to the
stand.
d. Release. Witnesses should be released from further attendance
or subpoena as soon as they are no longer needed. After
testifying, a witness shall be deemed as released by consent
unless counsel or the court indicates that the witness should not
be so excused. You should not consent to release of a witness if
you will later offer in evidence a prior inconsistent statement
about which the witness was not examined or if you wish to make
a proffer of testimony of that witness to which an objection was
sustained.
e. Exclusion. Requests under Federal Rule of Evidence 615 for
exclusion of witnesses from the courtroom should be made
before examination of the first witness begins, preferably before
opening statements. Be alert for witnesses arriving during trial
and inadvertently coming into the courtroom. Although the Rule
does not prevent talking with excluded witnesses during recesses
about their expected testimony, do not in such discussions
disclose the courtroom testimony given by other witnesses. After
testifying and provided they will not be recalled, witnesses are no
longer subject to the Rule and may remain in the courtroom.
5. Examination of witnesses. Absent physical disabilities, examination of a
witness should ordinarily be conducted while the witness is seated in the
witness box and counsel is standing at the lectern.
a. Approaching clerk’s desk or witness box. Permission of the
court to approach the clerk’s desk or the witness box is not
necessary if for the purposes of submitting or obtaining an
exhibit, handing an exhibit to the witness, or conducting
examination about an exhibit when counsel needs to be next to
the witness during the examination. Return to the lectern after
such examination is finished.
b. Other locations. Request permission of the court if you wish
the witness to step from the witness box (for example, to display
an injury, to prepare a sketch, or to identify objects in a
photograph). Assist the court in assuring that your voice and that
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of the witness are sufficiently loud to be heard and that opposing
counsel’s view is not obstructed.
c. Depositions. As you use or read from a deposition, indicate the
page and line number of the starting and stopping points.
Colloquies and objections of counsel should ordinarily be
omitted, as should questions that are rephrased or changed prior
to the answer being given. When the deposition refers to an
exhibit, counsel may, in addition to the identification used in the
deposition, indicate the exhibit number used during the trial.
Persons asked to read the deponent's testimony should do so fairly
and impartially. Depositions are not ordinarily read aloud in non-
jury cases; you should submit to the court well before the trial is
completed a list of the portions you want the court to read.
d. Harassment. Treat witnesses with courtesy, even when
conducting vigorous impeachment. Do not shout at, ridicule,
harass, or unfairly embarrass a witness. Use temperate language
when requesting the court's assistance to control or direct a
witness who is giving unresponsive or argumentative answers.
6. Objections. Rise before (or as) you object; this draws the attention of the court
and other counsel to you and should alert the witness not to answer until your
objection is ruled upon. While standing, state that you are objecting and specify
concisely the ground(s) of your objection (for example, “hearsay,” “irrelevant,”
“lack of personal knowledge,” “leading question”). Do not make a speech or
argument to the jury. Do not disparage opposing counsel or the witness. Do not
attempt to summarize other evidence. Do not suggest an answer to the witness.
a. Response by offeror. The person who asked the question
should not interrupt the person making the objection except to
withdraw the question or if the objection itself is being made in
an improper manner (for example, as an argument to the jury or
to suggest an answer to the witness). After the objection has
been stated, you may indicate if the evidence is being offered
only for a limited purpose or only against certain parties.
b. Argument on the objection. Neither counsel should present
arguments regarding the objection unless authorized or invited
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by the court. If you wish to be heard in argument, request the
court’s permission.
c. Continuing objection. In some circumstances you may be
allowed to have a “continuing objection” to a particular line of
inquiry, and therefore, you may not have to repeat your objection
to a series of questions. Typically, this occurs when your
objection on the grounds of relevancy is overruled and you wish
to make a relevancy objection to further questions on the same
subject.
d. Anticipating evidentiary problems. Evidentiary questions
which may involve extended discussion and argument should be
anticipated and called to the court’s attention at the start or end
of the trial day so that the question can be adequately considered
without having to interrupt the trial schedule.
7. Special equipment. Audio-visual equipment should be brought into the
courtroom and tested before or after trial hours or during a recess. You are
responsible for seeing that the trial is not substantially delayed while such
equipment is being set up. Make arrangements with the courtroom deputy if you
need special access to the courtroom.
8. Closing arguments. Unless otherwise allowed by the court, closing arguments
are limited to 30 minutes to the side. Counsel for the party having the burden of
proof shall be the first to present closing argument and may reserve a portion of
the allotted time (not in excess of initial time taken) to respond to the other
parties’ arguments. A party seeking damages and who is permitted to divide its
time of argument should address both liability and damages issues in its initial
argument. Do not express your own personal opinions about the facts. Do not
invite jurors to return a verdict as if they were in the position of one of the parties.
You may leave the lectern, but keep your voice sufficiently loud to be heard by
other counsel, the judge, and the court reporter.
9. Instructions. Persons are not ordinarily permitted to enter or leave the
courtroom during the time the court is instructing the jury. The court will provide
counsel with an opportunity to present objections or exceptions to the instructions
outside the hearing of the jury and before the deliberations begin either at the
bench or after excusing the jurors from the courtroom. Counsel are expected to
21
remain in general attendance at the courthouse while the jury is deliberating; the
failure to do so may be treated as a waiver of any right to object should the jury
request and be given supplemental instructions.
10. Other Matters of Proper Decorum and Conduct.
a. Do not argue with or disparage other counsel in the hearing of
the jury. In most situations, the court's permission should be
obtained before counsel engage in dialogue between themselves
in the courtroom. Side comments between counsel should be
limited to situations in which such conversations are intended to
facilitate the fair and efficient conduct of the trial and not for any
tactical advantage; they should, moreover, be done in a respectful
and courteous manner that does not detract from the dignity of
the proceedings. In-court offers to stipulate should ordinarily be
made only if previously agreed upon or if counsel has reason to
believe the offer would have been accepted if made outside the
courtroom.
b. All should rise and remain standing and quiet while court is
being formally opened. Counsel should rise and remain standing
while examining a witness, making an objection, presenting a
motion, request, or argument, or otherwise addressing the court.
At other times while court is in session, remain seated.
c. Address or refer to witnesses or other parties using their
surname.
d. While opposing counsel is presenting a matter to the court or
the jury or is examining a witness, other counsel and their clients
or associates should not engage in conversation or activity at
counsel table or otherwise move about the courtroom in a manner
that might be distracting.
e. Indicating agreement and disagreement. No one should by
words, facial expressions, or other conduct indicate personal
agreement or disagreement with what is being said by the court,
the jury, an attorney, or a witness. Counsel are responsible for
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assuring that their clients and the friends or supporters of their
clients are warned about such behavior.
f. Attendance. Parties are not required to remain in continuous
attendance during civil trials. To facilitate arranging for the
attendance of witnesses and procuring documents, attorneys
may, without need for permission from the court, enter and leave
the courtroom during the trial from time to time if their client
remains represented by co-counsel. Such movements should,
however, be done in an unobtrusive and non-distracting manner.
Paralegals not expected to testify may, without the need for
special permission from the court, be inside the railing to assist
counsel.
g. Findings under Federal Rule of Evidence 104(a). Do not
disclose to the jury in any manner the findings of the court made
under Federal Rule of Evidence 104(a) in connection with
questions of admissibility. For example, do not argue to the jury
that you were allowed to present evidence of A’s statement
because the court found under Federal Rule of Evidence
801(d)(2)(E) that A and B were engaged in a conspiracy.
Similarly, do not ask in the presence of the jury for the court to
“recognize” a witness as an “expert” or as “hostile.”
h. Smoking, eating, and drinking. Smoking, eating, and drinking
(other than water) are never permitted in the courtrooms.
i. Cellular telephones; recording devices. Keep cellular
telephones in an “off” position while in the courtroom. Recording
devices may be used in the courthouse only with express
permission of the court.
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