PRACTICE STANDARDS
For Civil and Criminal Matters Before
William J. Martínez
United States District Judge
U.S. District Court for the District of Colorado
Courtroom A801
Chambers A841
Alfred A. Arraj U.S. Courthouse
901 19th Street
Denver, CO 80294-3589
Telephone: 303/335-2805
Facsimile: 303/335-2144
E-mail:
[email protected]
“Justice, sir, is the great interest of man on Earth.” Daniel Webster, 1845
Revised and effective 1 December 2022
COMMONLY OVERLOOKED STANDARDS
II.D.2: Procedures for seeking extensions of time (augmenting
D.C.COLO.LCivR 6.1).
III.C.1: Page limitations.
III.D: Procedures governing Rule 12 motions to dismiss (superseding
D.C.COLO.LCivR 7.1(b)(2)).
III.F.4: Appropriate and inappropriate responses to factual allegations in
summary judgment briefing.
III.G.3 & H.1: Timing of motions in limine and Rule 702 motions.
IV.A.3: Requests for civil trials exceeding 5 days.
TABLE OF CONTENTS
I. INTRODUCTION .................................................................................................. 1
A. Purpose and Authority ............................................................................... 1
B. Relation to Local Rules .............................................................................. 1
II. GENERAL PROCEDURES .................................................................................. 1
A. Applicable Rules ........................................................................................ 1
B. Communications with Chambers ............................................................... 1
C. Pretrial Matters Handled by the Magistrate Judge ..................................... 2
D. Deadlines ................................................................................................... 2
E. Citations ..................................................................................................... 3
F. Testimony by Telephone or Video Conference .......................................... 3
III. MOTIONS PRACTICE AND FILING OF REQUIRED NOTICES ......................... 4
A.
General ...................................................................................................... 4
B.
Separate Motion Required ......................................................................... 4
C.
Page Limitations ........................................................................................ 4
D.
Special Instructions Concerning Motions Brought Under Fed. R. Civ. P. 12
................................................................................................................... 5
E. Special Instructions Concerning Motions Brought Under Fed. R. Civ. P.
15(a) .......................................................................................................... 6
F. Special Instructions Concerning Motions for Summary Judgment ............. 6
G. Motions in Limine ....................................................................................... 8
H. Motions Under Fed. R. Evid. 702 ............................................................... 9
I. Fed. R. Civ. P. 72 Objections and Responses ......................................... 10
J. Oral Argument and Evidentiary Hearings................................................. 10
K. Notice of Supplemental Authority............................................................. 11
L. Sur-Reply or Supplemental Brief/Notice .................................................. 11
M. Motions to Bifurcate Trial ......................................................................... 11
IV. FINAL PRETRIAL CONFERENCE AND FINAL TRIAL PREPARATION
CONFERENCE ............................................................................................................. 11
A. Final Pretrial Conference ......................................................................... 11
B. Final Trial Preparation Conference .......................................................... 12
C. Notice of Settlement in Civil Cases After Trial Has Been Set (Settlements
Not Requiring Court Approval) ................................................................. 16
D. Notice of Settlement in Civil Cases After Trial Has Been Set (Settlements
Requiring Court Approval) ....................................................................... 16
V. COURTROOM PROCEDURES FOR TRIALS AND HEARINGS ...................... 16
A. Hard Copy Transcripts ............................................................................. 16
B. Realtime Reporting .................................................................................. 17
C. Trial Setting.............................................................................................. 17
D. Reserved ................................................................................................. 17
E. Trials ........................................................................................................ 17
1. General Scheduling Matters .............................................................. 17
2. Opening Statements .......................................................................... 17
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3. Examination of Witnesses ................................................................. 17
4. Bench Conferences ........................................................................... 18
5. Closing Arguments ............................................................................ 18
F. Exhibits .................................................................................................... 18
G. Depositions .............................................................................................. 19
H. Witness Lists............................................................................................ 20
I. Glossary of Technical .............................................................................. 20
J. Trials to the Court .................................................................................... 21
K. Selection of Juries in Civil Jury Trials ...................................................... 21
L. Batson Challenges ................................................................................... 22
M. Selection of Juries in Criminal Jury Trials ................................................ 22
VI. JURY INSTRUCTIONS, STATEMENT OF THE CASE, AND VERDICT FORMS
22
A. General Information ................................................................................. 22
B. Stipulated Instructions & Statement of the Case...................................... 22
C. Disputed Instructions ............................................................................... 23
D. Authority for Stipulated and Disputed Instructions ................................... 23
E. Special Procedure for the Party Objecting to a Disputed Instruction ....... 23
F. Form of Submission ................................................................................. 24
G. Jury Instruction Conference ..................................................................... 24
H. Juror Notes & Instructions........................................................................ 24
VII. MOTION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR
PRELIMINARY INJUNCTION....................................................................................... 24
VIII. STANDING ORDER FOR CERTAIN EMPLOYMENT CASES .......................... 25
IX. SPECIAL INSTRUCTIONS FOR CRIMINAL MATTERS ................................... 26
A. General Information ................................................................................ 26
B. Deadlines ................................................................................................. 26
C. Reserved ................................................................................................. 26
D. Order to Confer Regarding Discovery Motions ........................................ 27
E. Expert Disclosures ................................................................................... 27
F. Plea Agreements ..................................................................................... 27
G. Notices of Disposition .............................................................................. 28
H. Joint Motions............................................................................................ 28
I. Hearings .................................................................................................. 28
1. Change of Plea Hearing .................................................................... 28
2. Sentencing Hearing & Related Filings ............................................... 29
3. Final Hearing on Petition on Supervised Release ............................. 29
J. Superseding Indictments ......................................................................... 30
K. Motions to Suppress ................................................................................ 30
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I. INTRODUCTION
A. Purpose and Authority
1. These Revised Practice Standards are adopted to secure the just,
speedy, and inexpensive determination of every action. Except as otherwise provided,
they shall apply to all matters addressed by the Court on or after 1 December 2022.
These Revised Practice Standards may be further revised without notice and may be
modified by orders entered in specific cases. They have the force and effect of the
orders of this District Court, and are to be cited as “WJM Revised Practice Standards”.
2. Failure to follow the Local Rules of Practice for the United States
District Court for the District of Colorado (the “Local Rules”) or the procedures outlined
herein may result in an order striking the noncompliant filing or otherwise addressing the
noncompliant action. Repeated failure to follow these procedures may result in an order
granting other proper relief, including sanctions.
B. Relation to Local Rules
The procedures outlined in these Revised Practice Standards are in
addition to the requirements set forth in the Local Rules.
II. GENERAL PROCEDURES
A. Applicable Rules
Those appearing in the District Court must know and follow:
1. The Federal Rules of Civil Procedure and/or the Federal
Rules of Criminal Procedure;
2. The Federal Rules of Evidence;
3. The Local Rules; and
4. The Electronic Case Filing Procedures (Civil and Criminal).
B. Communications with Chambers
1. For information about the status of a motion or document, please
utilize the CM/ECF system, or contact my Docket Clerk, Tram Vo, at 303/335-2100.
2. For information about courtroom technology, trial preparation, use
of depositions, the submission of trial exhibits and witness lists, or the use of exhibits at
trial, please contact my Courtroom Deputy Clerk, Heidi Guerra, at 303/335-2102.
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3. If you need to reach my Court Reporter or wish to order a
transcript, please contact Mary George at 303/335-2109.
4. For other information or assistance, you may contact my Chambers
at 303/335-2805. Please do not contact my Chambers about substantive matters.
My staff is not authorized to give legal advice or grant oral requests over the telephone.
5. Ex parte communications: Unless specifically authorized, neither
counsel nor pro se litigants may communicate about a case by letter or telephone call to
the Court. All communications must be made in the form of a motion, brief, notice, or
status report, and must be served on all opposing counsel and pro se parties.
C. Pretrial Matters Handled by the Magistrate Judge
The Magistrate Judge and I will work together as a team to manage your
case and administer justice to the best of our abilities. Among other responsibilities
s/he has in your case, the Magistrate Judge will generally manage pretrial discovery
and adjudicate any pretrial discovery disputes which might arise. I reserve the right,
however, to handle any pretrial matters that I deem necessary, including matters
relating to pretrial discovery disputes. I strongly encourage the parties to consult the
Court’s Electronic Discovery Guidelines and Checklist, available on the Court’s website
at http://www.cod.uscourts.gov/CourtOperations/RulesProcedures/
ElectronicDiscoveryGuidelinesandChecklist.aspx.
D. Deadlines
1. Fed. R. Civ. P. 6 controls the computation of all time requirements
in these procedures, and shall apply to all pretrial motions filed in criminal cases.
2. Motions for Extension of Time
a. Motions seeking an extension of time to file a document, or
for the continuance of a hearing, must be sought by way of an appropriate written
motion filed as far in advance of the deadline or setting as possible. All such motions
must clearly establish good cause for the requested extension or continuance.
b. In a civil case, service on the client, as required by
D.C.COLO.LCivR 6.1(c), must be noted in the Certificate of Service and must identify
the individual(s) who received such service, including, if appropriate, the name and title
of any individual who received service on behalf of a client that is not a natural person.
c. Absent a compelling reason: (a) no motion for an extension
of time to file a document shall be considered unless it is filed on or before the original
filing deadline date; and (b) no motion for continuance of a hearing shall be
considered unless it is filed on or before the court business day preceding the
original hearing date.
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3. Due to the extraordinary disruption to the Court’s calendar caused
by the rescheduling of trials, motions for continuance of a trial date (jury or bench) are
heavily discouraged and will rarely be granted. Such motions will be denied absent a
showing of substantial good cause arising out of truly compelling circumstances. For
purposes of this Practice Standard, “substantial good cause” does not include
previously scheduled trial settings unless that trial is before a judicial officer of this
Court.
E. Citations
1. Citations shall be made pursuant to the most current edition of THE
BLUEBOOK: A UNIFORM SYSTEM OF CITATION, or a comprehensive equivalent, such as THE
INDIGO BOOK: AN OPEN AND COMPATIBLE IMPLEMENTATION OF A UNIFORM SYSTEM OF
CITATION (https://law.resource.org/pub/us/code/blue/IndigoBook.html).
2. General references to cases, pleadings, depositions, or documents
are insufficient if the document is over one page in length. The parties shall provide
specific references in the form of precise citations, including page number or paragraph
number to identify those portions of the cases, pleadings, depositions, or documents
relevant to the argument presented.
F. Testimony by Telephone or Video Conference
1. Together with Fed. R. Civ. P. 43(a) for trials and 43(c) for motions,
this Practice Standard governs requesting and taking testimony by telephone or video
conference. A party may request that testimony be presented by telephone or video
conference at a trial or hearing. A request for presentation of testimony by telephone or
video conference shall be made by written motion or stipulation filed at least 7 days
before the trial or hearing at which testimony is proposed to be taken by telephone or
video conference. For hearings set with less than 7 days’ notice, counsel should call
chambers as early as possible once the hearing is set to advise of the intent to file such
a motion, and thereafter should file the motion as far as possible in advance of the
hearing date.
2. I will determine whether in the interest of justice the testimony may
be taken by telephone or video conference. The granting of such motion is also subject
to the availability of necessary equipment. If I order testimony to be taken by telephone
or video conference, I may also issue such orders as are appropriate to protect the
integrity of the proceedings. Due to problems I have experienced with testimony by
cellphone, any order approving a request for telephonic testimony also usually includes
a directive that the witness be available via a landline telephone number. Any party
intending to move for leave to present telephonic testimony shall keep this practice in
mind.
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III. MOTIONS PRACTICE AND FILING OF REQUIRED NOTICES
A. General
1. Parties need not submit a proposed order with their motion. If I
would prefer to have a proposed order, you will receive an e-mail or telephone call from
my Chambers.
2. Motions with separately filed briefs or memoranda in support are
discouraged. I prefer the motion itself and all supporting arguments to be contained
within a single document. Relatedly, all exhibits filed in support of a motion must be
appended as separate, individual attachments to that pleading. For example, Exhibit 1
should be filed as ECF No. 1-1, Exhibit 2 as ECF No. 1-2, etc. In no event, however,
will a separate motion and brief in support thereof be accepted unless they are filed
contemporaneously.
3. Exhibits to a motion, response, or reply must be filed on the same
calendar day as the motion, response, or reply. Exhibits filed on a later day may be
summarily stricken.
4. If parties file what they deem to be an “emergency” motion, they
must call Chambers or e-mail
[email protected] at the time the
motion is filed.
5. If a motion filed on the docket becomes moot for any reason, the
party who filed the motion is directed to file a brief statement informing the Court of this
fact and the reasons the motion is now moot.
B. Separate Motion Required
All requests for the Court to take any action, make any type of ruling, or
provide any type of relief must be contained in a separate, written motion. A request of
this nature contained within a brief, notice, status report or other written filing does not
fulfill this Practice Standard. This requirement applies to all civil and criminal actions.
Although the requirement applies to cross-motions for summary judgment, the
requirement does not apply to objections to summary judgment evidence (see III.F.4,
below) unless the objecting party is seeking total or partial exclusion of expert testimony
under Federal Rule of Evidence 702. This requirement also does not apply to requests
to convert a Fed. R. Civ. P. 12(b)(6) motion to one for summary judgment; such a
request should instead be included in the response to the Fed. R. Civ. P. 12(b)(6)
motion (see also III.D.3, below).
C. Page Limitations
1. All page limitations stated below are inclusive of all text except for:
(1) the table of contents and/or table of authorities (if included—I do not require these
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items); (2) the attorney or party signature block(s); and (3) the certificate of service. To
the extent a party files a motion and a separate brief or memorandum in support, the
combined length of both documents shall not exceed the stated page limitation (but see
WJM Revised Practice Standard III.A.2, above).
Motions for Summary Judgment other than Early Partial See III.F.7.
Motions for Summary Judgment
Motions in Limine See III.G.2.
Rule 702 motions Motion and Response
Briefs:
10 pages; Reply: 5 pages.
Fed. R. Civ. P. 72 Objections Objection and Response:
10 pages.
APA, bankruptcy, and ERISA appeal merits briefs Opening and Response
Briefs: 50 pages; Reply
Brief: 25 pages.
Habeas Corpus Briefs (e.g., 28 U.S.C. §§ 2241, 2254, Motion and Response: 30
and 2255) pages; Reply Brief: 15
pages.
ALL OTHER motions (including Early Partial Summary Motion and Response
Judgment Motions) Briefs: 15 pages; Reply: 10
pages.
2. Exceptions to the above page limitations will be made only in
exceptional circumstances where I decide that the complexity or numerosity of the
issues compel a motion, brief, objection, or response of greater length. Permission to
file such papers of greater length shall be sought by way of an appropriate motion filed
in advance of the deadline for filing the brief. A motion requesting such permission
must include sufficient detail to allow me to discern the necessity of additional pages.
D. Special Instructions Concerning Motions Brought Under Fed. R. Civ. P. 12
1. In my view the overuse of Rule 12 motions unreasonably delay the
progress of civil litigation. Motions brought pursuant to this Rule are strongly
discouraged if the defect is correctable by the filing of an amended pleading.
Notwithstanding D.C.COLO.LCivR 7.1(b)(2), counsel must confer prior to the filing of a
Rule 12 motion to determine whether the deficiency (e.g., failure to plead fraud with
specificity) can be corrected by amendment, and should exercise their best efforts to
stipulate to appropriate amendments. If such a motion is nonetheless filed, counsel for
the movant shall include in the motion a conspicuous statement describing the specific
efforts undertaken to comply with this Practice Standard. Counsel are on notice that
failure to comply with this Practice Standard may subject them to an award of attorney’s
fees and costs assessed personally against them. This applies equally to plaintiffs and
defendants. A party that defends against a Rule 12(b)(6) motion to dismiss by asserting
facts not alleged in the complaint/counterclaim violates this Practice Standard. This
Practice Standard shall not apply in cases where the non-movant is proceeding pro se.
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2. All Rule 12 motions shall state in the caption or in the opening
paragraph under which rule or subsection thereof such motion is filed. All requests for
relief under any part of Rule 12 must be brought in a single motion.
3. If a motion to dismiss is filed pursuant to Rule 12(b)(6) and matters
outside the pleadings are presented with the motion, the motion shall include a brief
statement addressing whether the motion should be converted to a motion for summary
judgment.
E. Special Instructions Concerning Motions Brought Under Fed. R. Civ. P.
15(a)
A party who files a motion for leave to file an amended pleading shall
attach as exhibits a clean copy of the proposed amended pleading and a redlined copy
of the proposed amended pleading compared against the original pleading.
F. Special Instructions Concerning Motions for Summary Judgment
1. In my view the overuse of motions filed pursuant to Fed. R. Civ. P.
56 in this District unreasonably delays the progress of civil litigation. Counsel are well-
advised to avoid reflexively filing a motion for summary judgment.
2. Subject to any other order I might enter in a particular case with
regard to motions filed under Fed. R. Civ. P. 56, each party shall be limited to the filing
of a single motion for summary judgment, usually but not necessarily filed at the
conclusion of pretrial discovery. In addition, however, no later than 30 days after entry
of the initial scheduling order, a party may also file one early motion for partial summary
judgment (“Early Motion for Partial Summary Judgment”) which presents a substantial
and well-supported argument for final disposition of all claims, significantly reducing the
claims or issues in the case, or the amount of discovery required, or for materially
affecting the settlement calculus. To be clear, a party may file both one early motion for
partial summary judgment and one motion for summary judgment. However, no party
may file a second motion for summary judgment, or a second Early Motion for Partial
Summary Judgment, without prior leave of court, which shall be granted in only the
most extraordinary circumstances.
3. All motions for summary judgment, including Early Motions for
Partial Summary Judgment, must contain a section entitled “Movant’s Statement of
Material Facts.” This Statement shall set forth in simple, declarative sentences, all of
which are separately numbered and paragraphed, each material fact the movant
believes supports movant’s claim that movant is entitled to judgment as a matter of law.
Each statement of fact must be accompanied by a specific reference to supporting
evidence in the record.
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4. Any party opposing the motion for summary judgment, or an Early
Motion for Partial Summary Judgment, shall provide a “Response to Movant’s Material
Facts” in its brief, admitting or denying the asserted material facts set forth by the
movant, as follows:
a. The admission or denial shall be made in paragraphs
numbered to correspond to movant’s paragraph numbering.
b. Any denial shall be accompanied by a brief factual
explanation of the reason(s) for the denial and a specific reference to supporting
evidence in the record.
c. The opposing party may not “deny” an assertion on grounds
of evidentiary inadmissibility or other reasons for inadmissibility (including immateriality,
irrelevance, lack of authenticity, lack of foundation, incompleteness, waiver, or
estoppel). The opposing party “may object that the material cited to support or dispute
a fact cannot be presented in a form that would be admissible at trial,” Fed. R. Civ. P.
56(c)(2), and any party so objecting must include a concise explanation of its objection,
but the party must still admit or deny the factual substance of the assertion.
d. The opposing party may not deny an assertion for lack of
knowledge, unless (i) in response to an Early Partial Motion for Summary Judgment and
such denial is made in good faith, or (ii) the party states within the body of its response
a well-grounded request for additional discovery under Fed. R. Civ. P. 56(d) and
attaches the affidavit or declaration required by that Rule.
e. The opposing party may not “admit” an assertion in terms
such as “Admitted that John Doe claims such-and-such,” unless the assertion itself is
framed in terms of what John Doe “claims.” The opposing party must admit or deny the
factual substance of the assertion.
f. The opposing party may not respond that a quoted or
summarized document “speaks for itself,” or similar concepts. The opposing party must
admit or deny the substance of the assertion, including, for example, an admission or
denial that the document has been quoted or summarized accurately.
g. The opposing party may not refuse to admit or deny, unless
such refusal is supported by a recognized privilege.
5. If the party opposing the motion for summary judgment, or the Early
Motion for Partial Summary Judgment, believes there are additional disputed questions
which have not been adequately addressed by the movant, the party shall, in a separate
section of the party’s brief styled “Statement of Additional Disputed Facts,” set forth in
simple declarative sentences, separately numbered and paragraphed, each additional
material disputed fact which undercuts movant’s claim that movant is entitled to
judgment as a matter of law. Each separately numbered and paragraphed fact shall be
7
accompanied by specific reference to evidence in the record supporting the fact or
demonstrating that it is disputed.
6. If a reply brief is filed pursuant to D.C.COLO.LCivR 56.1, it shall
contain:
a. A separate section titled “Reply Concerning Undisputed
Facts,” containing any factual reply which movant cares to make regarding the facts
asserted in movant’s motion to be undisputed. Any such factual reply shall be made in
separate paragraphs numbered to correspond to the movant’s motion and the
opposing party’s response and shall be supported by specific references to material in
the record, including material attached to the reply, if necessary.
b. A separate section titled “Response Concerning Additional
Disputed Facts” admitting or denying the additional disputed facts set forth by the non-
moving party. All of the requirements of III.F.4, above, apply to this Response
Concerning Additional Disputed Facts.
7. Page limitations:
a. An Early Motion for Partial Summary Judgment, the
response thereto, and any reply, are governed by the default page limitations stated in
the table found at III.C.1, above.
b. A traditional summary judgment motion (i.e., one usually but
not necessarily filed after the close of discovery), and the response thereto shall not
exceed 30 pages. Any reply shall not exceed 15 pages.
c. The parties are free to apportion their allotted number of
pages between the various factual sections, on the one hand, and legal argument
sections, on the other, as they see fit.
G. Motions in Limine
1. A motion in limine is a request that the Court exclude certain
evidence that the moving party expects an opposing party to offer at trial. Motions in
limine are permitted. A proper motion in limine (i) presents a substantial evidentiary
question that likely requires more careful consideration than is normally possible in the
middle of a trial, (ii) attaches the relevant portions of any exhibit the party seeks to
exclude, and/or (iii) quotes the expected testimony the party seeks to exclude, or
illustrative examples of such testimony, or summarizes such testimony if no transcript is
available (e.g., from a deposition or prior hearing). A motion in limine that does not
meet these requirements may be denied out of hand. A motion in limine that is a veiled
motion for summary judgment may also be denied out of hand. A motion seeking
exclusion of expert testimony under Rule 702 is governed separately (see III.H, below).
Those motions in limine which depend for their resolution upon the context in which the
8
evidence is offered will almost certainly not be ruled upon until trial.
2. Each party shall be limited to one motion in limine. Each such
motion shall be limited to 10 pages, and each response thereto shall be limited to 5
pages. No reply brief in support of a motion in limine will be permitted. In cases
with multiple plaintiffs and/or multiple defendants, only one motion in limine or one joint
motion in limine per side shall be permitted. In these cases, the motion or joint motion
shall be limited to 12 pages, and the joint response thereto shall be limited to 6 pages.
No reply brief in support of a joint motion in limine will be permitted. Motions or
responses in excess of the foregoing page limits will be permitted only upon a showing
of substantial good cause. Upon the filing of a motion, or joint motion, in limine, I will
promptly set a deadline for filing the response thereto, which generally will be shorter
than that permitted under Local Rule and well in advance of the date of the Final Trial
Preparation Conference.
3. Prior to filing a motion in limine, in civil and criminal cases, counsel
for the moving party must confer, or make reasonable, good-faith efforts to confer, with
opposing counsel in an effort to resolve the disputed matter. The motion will include a
description of all such efforts made, as well as a summary of the nonmovant’s position
on the relief sought. All motions in limine must be filed no earlier than 70 days before
the Final Trial Preparation Conference and, in civil cases, no later than 21 days prior to
the Final Trial Preparation Conference. In criminal cases, all motions in limine must be
filed no later than 10 days prior to the Final Trial Preparation Conference. I note that
the Final Trial Preparation Conference is not the same as the Final Pretrial
Conference held before the Magistrate Judge.
H. Motions Under Fed. R. Evid. 702
1. In my experience, many Rule 702 motions are veiled dispositive
motions, in the sense that the moving party seeks to exclude expert evidence and
thereby leave the opposing party without evidence necessary to prove an element of its
claim or defense. In most circumstances, such a tactic contradicts the strong
preference for deciding cases on their merits. Moreover, the vast majority of purported
Rule 702 arguments go to weight and not admissibility. Therefore, to the extent a Rule
702 motion has arguable merit and would leave the opposing party without evidence
necessary to prove an element of its claim or defense, I may, in my discretion, sua
sponte consider whether to grant leave to the non-movant to supplement the challenged
expert opinion(s). A party considering filing a Rule 702 motion should carefully weigh
whether it is better to reveal its challenges early and potentially give the opponent a
chance to correct deficiencies before trial, or to save its challenges for cross-
examination at trial.
2. The following deadlines apply to any motion made under Federal
Rule of Evidence 702, including under Daubert and related cases, regardless of how the
motion is styled (i.e., whether styled as a motion to strike, a motion to exclude, or
otherwise):
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a. In civil cases, such motions must be filed no later than 70
days (10 weeks) before the Final Trial Preparation Conference, unless the motion
challenges expert evidence submitted in support of summary judgment briefing, in
which case the motion must be filed contemporaneously with the summary judgment
response or reply, as appropriate. This practice standard concerns only the filing
deadlines for Rule 702 motions and should NOT be interpreted as permitting more than
one Rule 702 motion for any expert witness.
b. In criminal cases, such motions must be filed no later than
the deadlines set forth in Section IX.E, below.
3. All Rule 702 motions shall:
a. Identify with specificity each opinion the moving party seeks
to exclude and the specific ground(s) on which each opinion is challenged, e.g.,
relevancy, sufficiency of facts and data, or methodology.
b. Specifically state whether an evidentiary hearing is being
requested. If the motion includes such a request, the movant shall discuss why the
applicable law compels an evidentiary hearing.
4. In any response to a Rule 702 motion, the non-moving party shall
specifically address the issue of whether the circumstances do or do not require an
evidentiary hearing.
5. Rule 702 motions requiring an evidentiary hearing may be referred
to the assigned Magistrate Judge for hearing and decision.
6. A Rule 702 motion shall not be styled as a “motion in limine.”
I. Fed. R. Civ. P. 72 Objections and Responses
1. In order to provide a parallel opportunity to respond to an objection
as is provided under Rule 72(b), parties may file a response to an objection made under
Rule 72(a) within 14 days after being served with a copy of the objection.
2. In conformity with Rule 72, no reply in support of an objection
made under either Rule 72(a) or Rule 72(b) will be accepted.
J. Oral Argument and Evidentiary Hearings
While oral argument and/or evidentiary hearings on motions may be
requested by a party, they will be scheduled at my sole discretion. Preference in
scheduling oral argument on a contested motion will be given in those instances in
which at least one party certifies to the Court that said oral argument will be handled by
an attorney of record in the case who has eight years or less of legal experience.
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K. Notice of Supplemental Authority
A notice of new relevant authority may be filed if the supplemental
authority was issued after briefing on a motion has closed. Such a notice shall be
limited to the case title, citation, date of decision, and a single-sentence reference to the
issue to which the movant believes the new decision pertains (including a citation to the
location in previously filed briefing where the issue has been raised). No comment,
briefing, or responsive comment as to the significance or interpretation of the decision
may be made absent further order from me.
L. Sur-Reply or Supplemental Brief/Notice
No sur-reply, supplemental brief, or supplemental “notice of authorities” for
decisions issued before briefing on a motion has closed, or the substantial equivalent
thereof, may be filed without prior leave of Court granted for good cause shown.
M. Motions to Bifurcate Trial
Any motion to bifurcate trial must be filed no later than 21 days before the
date on which the proposed Final Pretrial Order is due.
N. Notice of Scheduled Settlement Conference/Mediation
Within one week of scheduling a settlement conference with a U.S. Magistrate
Judge or a mediation with a private mediator, the parties shall file a Notice of Scheduled
Settlement Conference or Mediation with the Court which includes the date of the
settlement conference. No later than three court days after the settlement conference
or mediation, the parties shall file a Notice of Outcome of Settlement
Conference/Mediation with the Court which includes the outcome of their efforts and
both sides’ positions regarding whether continued settlement negotiations would be
fruitful.
IV. FINAL PRETRIAL CONFERENCE AND FINAL TRIAL PREPARATION
CONFERENCE
A. Final Pretrial Conference
1. Unless ordered otherwise, the Final Pretrial Conference will be
conducted by the Magistrate Judge assigned to the case. The Proposed Final Pretrial
Order shall be prepared in accordance with the Instructions for Preparation of Final
Pretrial Order as set forth in the “Instructions Final Pretrial Order” which can be found
on this Court's Website under the link for Forms http://www.cod.uscourts.gov/
CourtOperations/RulesProcedures/Forms.aspx.
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2. Voluminous Evidence: In preparation for trial, parties shall either:
(1) redact voluminous evidence to reflect only the relevant portions and portions
necessary for context; or (2) consistent with the requirements of Fed. R. Evid. 1006,
prepare and offer charts, summaries, or calculations to communicate the contents of
voluminous evidence to the Court and jury. Although a complete original or copy of the
evidence on which a redacted exhibit or Rule 1006 chart, summary, or calculation is
based need not be offered and admitted into evidence, such underlying evidence must
itself be admissible and available to the parties for examination or copying and for
production to the Court if so ordered.
The parties shall include any redacted evidence or Rule 1006 chart,
summary, or calculation they intend to use at trial in the list of exhibits set forth in the
Final Pretrial Order and in the exhibit copies exchanged following the Final Pretrial
Conference. The voluminous evidence on which such redacted, summary, chart, or
calculation exhibit is based shall be identified in an appendix to the exhibit list and such
underlying evidence shall be made available to the other parties at the time the parties
exchange exhibits.
3. Should the parties request a trial in a civil case lasting longer than 5
days, counsel and/or pro se parties shall contact Chambers not later than 3 days after
entry of the Final Pretrial Order in order to schedule a status conference with me. At
this status conference the parties will address the reasons they believe a trial longer
than five days is necessary. No trial in excess of 5 days will be set in a civil case until
such a status conference is conducted.
B. Final Trial Preparation Conference
1. I will preside over the Final Trial Preparation Conference, which
generally will be scheduled approximately 2 weeks before trial in civil cases, and
approximately 1 week before trial in criminal matters. Counsel who will try the case, as
well as all pro se parties, must attend the Final Trial Preparation Conference in person.
Failure of trial counsel or pro se parties to attend the conference in person may result in
sanctions, including, without limitation, vacating the trial date, striking claims or
defenses, awarding attorneys’ fees, and/or counsel not in attendance at the Conference
not being permitted to try the case.
2. The Final Trial Preparation Conference is counsel’s opportunity to
invite my attention to any significant problems or issues which need to be resolved or
addressed before trial, or which may arise during the course of trial. At the Final Trial
Preparation Conference, I will inform counsel whether and as to which specific issues
contemporaneous trial briefs will be permitted pursuant to WJM Revised Practice
Standard IV.B.8. In addition, at this Conference, counsel shall be prepared to address
each of the following matters, as appropriate to the case at bar:
a. Length of opening statements beyond the presumptive 20
minutes per side allowed by these Revised Practice Standards;
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b. The timing and presentation of witnesses and evidence;
c. Anticipated evidentiary issues, including the need for
scheduling of hearings outside the presence of the jury;
d. Stipulations as to fact or law;
e. Anticipated trial testimony via deposition, including
compliance with WJM Revised Practice Standard V.G;
f. Any outstanding motions;
g. The identity, and title or capacity, of all lawyers, parties, and
assistants (legal and technical) who will be seated at counsel and supporting tables
during trial; and
h. The continuing viability (if any) of settlement discussions.
Finally, at the Conference I will review with counsel the parties’ compliance with the
filing requirements set forth in WJM Revised Practice Standard IV.B.4, below.
3. At Final Trial Preparation Conferences held in criminal cases
specifically, I will also discuss the following items with counsel:
a. Compliance with any Discovery & Scheduling Order
requirements regarding notice of intent by the prosecution to introduce evidence
pursuant to Fed. R. Evid. 404(b);
b. Seating of the alternate juror(s) as it relates to following the
Criminal Jury Selection Protocol I will use in criminal trials; see WJM Revised Practice
Standard V.M, below; and
c. Civilian dress and seating location of the defendant, as well
as whether s/he will be required to be restrained other than at the ankles, feet, or legs.
4. In all cases, civil and criminal, counsel for the parties shall file the
following materials not later than 7 days prior to the Final Trial Preparation Conference:
a. A Final Witness List (using the form below) containing (i) the
name of each witness to be called, (ii) the proposed date of testimony, and (iii) the
anticipated length of the witnesses’ direct and cross examination testimony (the parties
must therefore work together ahead of time to provide cross-examination estimates to
each other). The parties must indicate whether witnesses are designated as “will
call” or “may call” witnesses. In addition, there shall be no duplicate witnesses. If
more than one party designates the same witness, only one party shall list that witness,
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and that party shall include the words “cross-designated” or “cross-designated by [party
name(s)]” (as appropriate) after the witness’s name. For a cross-designated witness,
the estimate of cross-examination time shall account for my practice of excusing
compliance with Fed. R. Evid. 611(b) as to such witnesses and requiring the cross-
examining attorney to also present his or her direct examination of that witness during
the time allotted for cross-examination. Witnesses not listed in the Final Pretrial Order
may not be included in the Final Witness List without prior leave of Court for substantial
good cause shown.
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Case No. Date:
Case Title:
FINAL WITNESS LIST
(Plaintiff/Defendant)
WITNESS & DATE PROPOSED LENGTH OF TESTIMONY
Direct: Cross: Total:
Direct: Cross: Total:
Direct: Cross: Total:
An editable copy of this form is available at http://www.cod.uscourts.gov/
JudicialOfficers/ActiveArticleIIIJudges/HonWilliamJMartinez.aspx.
b. A Final List of Proposed Exhibits (using the form below).
Plaintiff’s Exhibits shall be numbered (1, 2, 3, etc.) and Defendant’s Exhibits shall be
lettered (A, B, C, etc.). If Defendant has more than 26 proposed exhibits, it shall use
every letter (A-Z) for the first 26 exhibits, and it shall then mark the remaining exhibits
A1 through A99, B1 through B99, etc. Defendant shall not use double or triple letters
for any of its exhibits (e.g., AA, BB, or AAA, etc.). In addition, there shall be no
duplicate exhibits (i.e., exhibits listed on both Plaintiff’s and Defendant’s exhibit lists).
The parties shall stipulate to the authenticity and admissibility of exhibits to the
maximum extent possible and indicate all stipulated exhibits on the list submitted before
the Final Trial Preparation Conference. This practice standard supersedes Fed. R.
Civ. P. 26(a)(3)(B).
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FINAL LIST OF PROPOSED EXHIBITS
CASE NO.________________ PLAINTIFF’S LIST_____ DEFENDANT’S LIST____ THIRD PTY DEFTS. LIST____
CASE CAPTION:______________________ vs. ______________________ PAGE NO. ________ DATE____________
LIST PLAINTIFF’S EXHIBITS BY NUMBERS (1, 2, 3, etc.) and DEFENDANT’S BY LETTER (A, B, C, etc.)
EXHIBIT WITNESS DESCRIPTION AUTHEN- STIP OFFER REC’D REFUSED RULING COMMENTS/
NO./LTR TICITY RSVD. INFO.
Please retain all column headings on all separate pages of this form included in a
party’s exhibit binder(s). An editable copy of this form is available at http://www.cod.
uscourts.gov/JudicialOfficers/ActiveArticleIIIJudges/HonWilliamJMartinez.aspx.
c. Proposed voir dire questions. On the morning of the first day
of trial I will inform counsel whether they are precluded from asking any of their
proposed voir dire questions, and at that time I will also inform the parties of the length
of attorney voir dire questioning that will be permitted. Apart from reasonable follow up
questions, counsel will not be permitted to ask questions during attorney voir dire which
I have not previously approved.
d. In civil cases, any stipulated or proposed amendments to the
Final Pretrial Order for consideration by the Court. The Final Pretrial Order will not be
amended without prior leave of Court to prevent manifest injustice.
e. A brief and concise list of issues and/or motions that
require resolution prior to, or at, trial. Do not repeat here issues raised in a party’s
motion in limine and/or trial brief, if any.
5. See V.G, below, for procedures and deadlines related to deposition
designations.
6. See VI.A–F, below, for procedures and deadlines related to jury
instructions.
7. In trials to the Court, the parties shall also submit Preliminary
Proposed Findings of Fact and Conclusions of Law, no later than 7 days before the
Final Trial Preparation Conference. The parties shall file their proposed findings of fact
on CM/ECF and submit in editable (Word or WordPerfect) format via electronic mail to
[email protected] (preferably in Arial, 12 point format). The
parties shall follow the formatting requirements for their proposed findings of fact as
specified in WJM Revised Practice Standard III.F.3.
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a. Findings of Fact: To the maximum extent possible, the
parties shall stipulate to the material facts. Proposed findings of fact should be stated
as nearly as possible in the same order as their anticipated order of proof at trial. To
the extent that the parties cannot agree on one version of facts, each party shall submit
their own proposals and underline all disputed facts.
b. Conclusions of Law: Conclusions of law need not be
underlined even if disputed. Counsel shall key their closing arguments to their
preliminary proposed findings and conclusions so as to point out the evidence upon
which they rely to support their proposed findings and conclusions.
8. I will determine at the Final Trial Preparation Conference whether
trial briefs will be accepted from counsel in any particular case. If so, the parties shall
contemporaneously file their trial briefs within such time and page limits as I shall direct,
addressing only those issues as to which I have stated I am seeking input. No
responsive or reply trial briefs shall be accepted.
C. Notice of Settlement in Civil Cases After Trial Has Been Set (Settlements
Not Requiring Court Approval)
To avoid undue disruption to my calendar, I will not vacate a final trial
preparation conference, a civil trial setting, or any of its attendant deadlines, on account
of a settlement until the parties file either:
1. A Stipulation of Dismissal; or, in the alternative,
2. A Stipulated Notice of Settlement that includes, at a minimum,
specific statements that (i) a settlement has been reached by all parties; (ii) a meeting of
the minds has been reached as to all material terms of the settlement; and (iii) the
settlement will finally and fully resolve all remaining claims in this action.
D. Notice of Settlement in Civil Cases After Trial Has Been Set (Settlements
Requiring Court Approval)
If a settlement requires Court approval, I will not vacate a civil trial setting
or any of its attendant deadlines unless and until the parties file a motion for preliminary
approval of the proposed settlement.
V. COURTROOM PROCEDURES FOR TRIALS AND HEARINGS
A. Hard Copy Transcripts
If you require hourly or daily copy transcripts for a trial, you must make
arrangements with my Court Reporter at least 10 days before trial. If you require hourly
or daily copy transcripts for a hearing or oral argument, my Court Reporter appreciates
as much advance notice as is possible.
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B. Realtime Reporting
If you require realtime reporting to your laptop or other electronic device
during the course of a trial, hearing, or oral argument, you must consult with my Court
Reporter prior to the date of the proceeding to ensure that all technical issues have
been resolved prior to commencement of the proceeding.
C. Trial Setting
In civil cases, my staff will set dates for both a Final Trial Preparation
Conference and for Trial following entry by the Magistrate Judge of the Final Pretrial
Order. In criminal cases, my staff will set the case for a Final Trial Preparation
Conference and Trial following the Discovery Conference with the Magistrate Judge.
D. Reserved
E. Trials
1. General Scheduling Matters
Unless directed otherwise, trials will generally be set Monday through
Friday, with occasional settings in other matters scheduled at the beginning or end of a
trial day. On the first day of trial, counsel must be present at 8:30 a.m. to go over any
final matters before trial begins. On subsequent trial days counsel must also be present
in the courtroom no later than 8:30 a.m. A normal trial day in my Courtroom begins at
8:45 a.m. and will continue until 5:00 – 5:15 p.m. The Court will recess for a lunch
break as well as short mid-morning and mid-afternoon breaks.
2. Opening Statements
Opening statements shall generally be limited to 20 minutes per side
unless, in my discretion, a short amount of additional time is required, particularly in
cases with numerous parties.
3. Examination of Witnesses
The restrictions regarding leading questions in Federal Rule of Evidence
611(c) are meant to ensure, to the greatest extent practicable, that testimony on direct
examination is the witness’s testimony, not the lawyer’s. Although I tolerate an
occasional leading question on direct examination when it is useful to move the
witness’s testimony along, I otherwise readily sustain a “leading” objection unless I am
satisfied that the witness falls under Rule 611(c)(2) and is in fact a hostile witness. This
is the approach I take at trial even in the case of cross-designated witnesses.
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4. Bench Conferences
Bench (or “side bar”) conferences are discouraged and will be minimized.
Matters that may otherwise justify a bench conference should ordinarily be raised either
before or after the trial day, or during a break, and outside the jury’s presence.
5. Closing Arguments
After all the evidence is presented, I will inform counsel how much time
will be allotted for closing arguments. The length of the trial is not necessarily
determinative of the amount of time counsel will be given to argue his or her case.
Plaintiff (or the Government in a criminal case) may use no more than 1/3 of its allotted
time in rebuttal. Counsel must inform the Courtroom Deputy Clerk how you will divide
your argument and whether you want a warning before your time expires.
F. Exhibits
1. I require counsel and pro se parties to meet and confer in
person prior to the Final Trial Preparation Conference or evidentiary hearing, to review
the lists of exhibits they expect to offer into evidence. To the maximum extent possible,
the parties are directed to stipulate to the authenticity and admissibility of their proposed
exhibits. All such stipulations should be indicated on the Final List of Proposed Exhibits.
2. Please provide three copies of your Final List of Proposed Exhibits
(as filed on CM/ECF, displaying the CM/ECF header, and displaying the column
headings on each page) to my Courtroom Deputy Clerk on the morning of trial or prior
to an evidentiary hearing. All exhibits must be marked with exhibit labels which identify
the case number and exhibit number or letter. Counsel and pro se parties are
encouraged to mark exhibits in a simple fashion to make a cleaner record. For clarity of
the record, each exhibit shall consist of one document and not a group of documents as
one exhibit.
3. Original Exhibits: At the start of every trial or evidentiary hearing,
the parties shall submit a set of original exhibits to my Courtroom Deputy Clerk in three-
ring binders, each no larger than three inches wide. These are the exhibits to be used
by the witnesses. Please include all exhibits in these binders, including those as to
which there is no stipulation on admissibility. In addition:
a. A label shall be placed on the spine of each binder that
shows the volume number and which exhibits are contained within each binder.
b. Each original exhibit shall bear an extended tab showing the
number or letter of the exhibit.
c. Each document including any attachments thereto shall be
paginated.
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4. Copies of Exhibits: In addition to the original exhibit binder(s), the
parties shall provide copies of exhibits to the Court as follows:
a. Regardless of whether the proceeding is a bench trial, jury
trial, or an evidentiary hearing, the parties shall each submit their exhibits on a flash
drive for the Court Reporter. If an exhibit cannot be presented in digital form on a flash
drive, the party shall contact my Court Reporter (see II.B.3, above) to discuss an
alternate format.
b. Jury trials: Submit one copy of all exhibits in three ring
binders, each no larger than three inches wide. These copies shall be submitted in the
same format as the original exhibits. This is the set of exhibits to which I will refer in the
course of jury trials.
c. Bench trials and evidentiary hearings: Submit two copies of
all exhibits in three ring binders, each no larger than three inches wide. These copies
shall be submitted in the same format as the original exhibits. These are the exhibits to
which I and my law clerk, will refer in the course of bench trials or evidentiary hearings.
5. Exhibits for Jurors: Due to the technological equipment available in
the courtroom, exhibit notebooks for jurors are no longer permitted.
6. Use of Exhibits at Trial or Evidentiary Hearing: The Courtroom
Deputy Clerk will present the exhibit binder(s) to the witnesses. This will permit
examining counsel to state simply: “Please look at Exhibit No. 1”. Counsel need not
approach the witness as part of this examination process.
G. Depositions
The use of depositions is governed by Fed. R. Civ. P. 32 and the following
procedures. All original deposition transcripts should be delivered to the Courtroom
Deputy Clerk before the start of trial by the party in possession of same.
1. Videotaped Depositions: If videotaped deposition testimony is to
be used, the Court and all parties must be given at least 10 days advance notice. The
party offering the testimony must arrange any necessary technological equipment.
2. Deposition Testimony: The following requirements govern the use
of depositions as testimony at trial:
a. Use with Live Witnesses: Unless otherwise permitted for
good cause shown, including purposes provided for under Fed. R. Evid. 801(d)(1), if
any party will be calling a witness to testify in person at trial, testimony by that witness
via deposition on behalf of any party for substantive (as opposed to impeachment)
purposes will not be allowed. However, pursuant to Fed. R. Civ. P. 32(a)(3), this
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Practice Standard does not apply to a party’s use of an adverse party’s deposition
testimony.
b. All Trials: Not later than 21 days prior to trial, counsel shall
exchange with each other their designation of anticipated deposition and videotape
deposition testimony. Plaintiff’s designations shall be highlighted in yellow and
Defendant’s designations highlighted in blue. In sufficient time to allow for the filing of
final objections with the Court as set forth in WJM Revised Practice Standard V.G.3
below, subsequent to the original exchange, counsel shall notify opposing counsel of
any counter-designated deposition testimony, exchange objections to all designated
testimony, and make a good-faith attempt to resolve such objections.
c. Jury Trials: The party offering non-videotape deposition
testimony is required to provide a person to read the answers from the witness stand at
trial.
d. Court Trials: At the Final Trial Preparation Conference I will
determine how depositions will be used at trial. In general, depositions will not be read
in open court in bench trials.
3. Objections to Use of a Deposition: If any party objects to any
deposition designations, then not later than 7 days prior to trial, the parties shall jointly
file with the Court a single marked-up transcript of their respectively designated
deposition testimony, highlighted as set forth above, along with the objections thereto
highlighted in red, and with a notation as to the basis for the objection. I will endeavor
to notify the parties of my rulings on these objections the morning of the first day of trial
or of the evidentiary hearing. If the parties’ respective deposition designations are, in
the aggregate, in excess of 100 pages, they shall submit said designations to Chambers
in hard copy form in 3 ring binders with the appropriate color highlighting, in addition to
filing them with the Court in the customary electronic fashion via CM/ECF. The only
pages of a deposition transcript which need be provided to Chambers and/or filed
electronically are those pages in which the actual designations appear, along with such
additional pages or portions of pages immediately before and after such designations as
may be reasonably necessary to provide the Court with the proper context for its rulings.
H. Witness Lists
Prior to the commencement of every trial or hearing, each party shall
provide the Courtroom Deputy Clerk with four copies of its Final Witness List (as filed on
CM/ECF, and displaying the CM/ECF header).
I. Glossary of Technical Terms
If testimonial evidence is expected to include more than the isolated use of
technical, scientific, or otherwise unusual verbiage or acronyms, at the beginning of the
trial or hearing, counsel offering such evidence shall provide the Court, as well as the
Court Reporter and all opposing counsel or parties, with a glossary of all such terms.
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J. Trials to the Court
1. In all trials to the Court, a comprehensive résumé or curriculum
vitae, marked and introduced as an exhibit, generally will suffice for the determination of
an expert witness’s qualification.
2. In trials to the Court wherein no party orders a trial transcript within
10 days after the conclusion of the trial, then not later than 21 days after such trial has
concluded, each party shall file Final Proposed Findings of Fact, Conclusions of Law,
and Proposed Orders and/or Judgment on CM/ECF and submit in editable (Word or
WordPerfect) format via electronic mail to
[email protected]
(preferably in Arial, 12 point format). If a party contracted for Realtime reporting during
the trial, then said party shall cite to the date and time of that portion of the Realtime
report relevant to the respective proposed finding of fact.
3. In trials to the Court wherein a trial transcript has been ordered
within 10 days after the conclusion of the trial, then not later than 21 days after the trial
transcript has been filed with the Court, each party shall file Final Proposed Findings of
Fact, Conclusions of Law, and Proposed Orders and/or Judgment on CM/ECF and
submit in editable (Word or WordPerfect) format via electronic mail to
[email protected] (preferably in Arial, 12 point format). All
citations to the trial proceedings shall be by page(s) and line(s) of the pertinent
portion(s) of the trial transcript.
4. All Final Proposed Findings of Fact shall be set forth as nearly as
possible in the same order as the proof of same came in at trial. The parties shall
follow the formatting requirements for their proposed findings of fact as specified
in WJM Revised Practice Standard III.F.3.
5. In their Final Proposed Findings of Fact the parties shall also
separately set forth all facts as to which the parties have reached a stipulation.
K. Selection of Juries in Civil Jury Trials
In accordance with Fed. R. Civ. P. 47(a) and (b), I will use the following
jury selection process in civil cases:
1. The jury in a civil matter shall consist of 8 jurors with no designated
alternates. The first 14 prospective jurors on the randomly-selected list generated by
the Clerk’s office list will be seated in the jury box.
2. I will conduct initial voir dire of the prospective jurors. Each side
will then be permitted voir dire examination not to exceed the time limit I impose on the
first morning of trial. Voir dire by counsel or a pro se party shall be limited to previously
approved questions and appropriate follow-up questions.
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3. After voir dire is complete, I will entertain challenges for cause. No
challenges for cause or statements that the panel is acceptable may be made in front of
the jury panel. I alone will conduct the voir dire of any replacement juror(s).
4. After any for cause challenges have been resolved, each side will
be allowed to make 3 peremptory strikes, which shall be made using a strike sheet in
alternating fashion, beginning with Plaintiff.
L. Batson Challenges
In civil cases, a Batson challenge needs to be made at the conclusion of
the exercise of peremptory strikes and immediately prior to the jury being seated and
sworn. In criminal cases, a Batson challenge needs to be made before the juror(s)
in question is/are excused from the courtroom.
M. Selection of Juries in Criminal Jury Trials
In criminal cases I will employ the jury selection process set forth in the
Jury Selection Protocol (Criminal Jury Trials) found on the District Court’s website
(http://www.cod.uscourts.gov/Portals/0/Documents/Judges/WJM/Jury-Selection-
Protocol.pdf). WJM Revised Practice Standards V.K.2, V.K.3 & V.L apply as well to
criminal jury trials. Typically, I will seat one alternate juror in trials scheduled to last one
week or less, and two alternate jurors in trials scheduled for more than one week.
VI. JURY INSTRUCTIONS, STATEMENT OF THE CASE, AND VERDICT FORMS
A. General Information
The parties shall submit proposed jury instructions, the proposed
statement of the case, and proposed verdict forms as set forth below not later than 14
days prior to the Final Trial Preparation Conference in civil cases, and not later than 7
days prior to the Final Trial Preparation Conference in criminal cases. Preliminary
instructions need not be submitted because it is my practice to read my own set of
preliminary instructions to the jury. By “preliminary instructions,” I mean generic
instructions that do not change from trial to trial, including instructions on trial
procedures, burden of proof, the definition of evidence, jurors’ duties, judging witness’s
credibility, the nature of deliberation, jury notes, the need for a unanimous verdict, and
so forth.
B. Stipulated Instructions & Statement of the Case
1. To the maximum extent possible, the parties shall agree on one
stipulated set of proposed jury instructions (labeled S1, S2, S3, etc.); only true conflict
or uncertainty in binding substantive law should prevent such agreement. I generally
will follow the form of preliminary instructions and instructions on substantive legal
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claims contained in the most current editions of the FEDERAL JURY PRACTICE AND
INSTRUCTIONS, TENTH CIRCUIT PATTERN CRIMINAL INSTRUCTIONS and the
COLORADO JURY INSTRUCTIONS (Civil & Criminal).
2. In civil cases, the parties shall discuss whether it would be
appropriate to update or in any manner revise the stipulation of facts contained in the
Final Pretrial Order. If so, the updated set of stipulated facts shall be filed in a single
stipulated jury instruction. If not, the parties shall reproduce the stipulations in the Final
Pretrial Order in a stipulated jury instruction.
3. The parties must also propose, in a separate filing, a stipulated
“Statement of the Case” instruction not more than one paragraph in length, which I
will use during jury selection to inform the jurors of the general nature of the case.
C. Disputed Instructions
To the extent that counsel are unable to agree on proposed instructions,
each side may tender a set of disputed instructions. Plaintiff’s disputed instructions
should be clearly labeled as “Plaintiff’s” (numbered 1, 2, 3, etc.) and Defendant’s
disputed instructions should be clearly labeled as “Defendant’s” (lettered A, B, C, etc.).
D. Authority for Stipulated and Disputed Instructions
For each stipulated and disputed instruction, the party submitting the
instruction shall indicate the source and authority for the instruction. If the source is a
pattern instruction not included in the authorities listed in WJM Revised Practice
Standard VI.B, a copy of the pattern instruction and the identity of the authority
underlying the pattern instruction shall be provided to the Court.
E. Special Procedure for the Party Objecting to a Disputed Instruction
a. The party objecting to a disputed instruction shall file an objection
which contains: (1) an explanation for its objection; (2) the authority relied on in support
of its objection; (3) whether it has submitted an alternate instruction to the disputed
instruction, along with the alternate instruction’s number or letter; and (4) an explanation
for why the alternate instruction should be given, and the authority relied on in support
thereof.
b. In civil cases, such objection shall be filed not later than 7 days
prior to the Final Trial Preparation Conference. In criminal cases, such objection shall
be filed not later than 9:00 a.m. on the court business day immediately prior to the Final
Trial Preparation Conference.
c. An argument that no evidence supports an opposing party’s
instruction is not an appropriate objection at this pretrial phase, but must be raised (if at
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all) in the context of a Rule 50(a) motion (in civil cases) or a Rule 29(a) motion (in
criminal cases).
F. Form of Submission
Parties shall file on CM/ECF and submit in editable (Word or WordPerfect)
format via electronic mail to
[email protected] (preferably in Arial,
12 point format) the following sets of jury instructions and proposed verdict form: (1)
Stipulated Set with Authority; (2) Plaintiff’s Disputed Set with Authority; (3) Defendant’s
Disputed Set with Authority; (4) Plaintiff’s Proposed Verdict Form; (5) Defendant’s
Proposed Verdict Form (OR a Stipulated Proposed Verdict Form); and (6) Stipulated
Statement of the Case.
G. Jury Instruction Conference
I will hold a charging conference before the case goes to the jury. At the
charging conference, I will review the proposed final instructions and verdict forms with
the parties. I will also at that time address unanticipated matters which have arisen
during trial and which require changes to the jury instructions. The parties will have an
opportunity to request changes to the proposed instructions and to state their objections
to the final instructions on the record. Court staff will prepare a final, clean set of
instructions and a verdict form for the jury, to which counsel may refer in the course of
their closing arguments. I will instruct the jury before closing argument.
H. Juror Notes & Instructions
Unless I order otherwise, jurors will be permitted to take notes during trial,
and will be permitted to consult such notes during their deliberations. In addition, each
juror will be given her or his own copy of the written jury instructions for his or her use
and consideration during deliberations. The jurors’ notes will be destroyed after the jury
is discharged.
VII. MOTION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR
PRELIMINARY INJUNCTION
A. To minimize delays, I strongly encourage counsel who seek a temporary
restraining order to confer in advance with the opposing party’s counsel (or, if not yet
represented, with the party itself). Counsel need not wait at the Courthouse after filing
the motion; the Court will contact counsel if a hearing is required.
B. As a general rule, ex parte motions for issuance of temporary restraining
orders will be granted only upon strict compliance with Fed. R. Civ. P. 65(b) and (c). In
appropriate circumstances, I may instead issue an order to show cause, directing the
person sought to be enjoined to appear at a hearing to show cause why the temporary
restraining order should not be issued; may deny the motion; or may set a hearing,
requiring the movant to serve the order and all underlying papers on the respondent in
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accordance with Fed. R. Civ. P. 4 and within the time specified in the order. A
continuance of the scheduled return date on the order to show cause will ordinarily not
be granted absent a stipulation by the parties.
C. At my discretion, a hearing on a motion for temporary restraining order
may take the form of an evidentiary hearing at which I apply a relaxed version of the
Federal Rules of Evidence, or it may be a non-evidentiary hearing at which a proffer is
made by counsel as to the evidence they would present at such an evidentiary hearing,
or a combination of the two approaches. If I schedule an evidentiary hearing on a
motion for temporary restraining order, the provisions of WJM Revised Practice
Standards V.F.1–4 & 6 involving the use of exhibits shall apply. At all such hearings,
counsel must be prepared to present appropriate legal argument.
D. If I schedule an evidentiary hearing on a motion for preliminary injunction, I
will also apply a relaxed version of the Federal Rules of Evidence, given that these
Rules have been held not to apply in such proceedings. See Heideman v. S. Salt Lake
City, 348 F.3d 1182, 1188 (10th Cir. 2003). The provisions of WJM Revised Practice
Standards V.F.1–4 & 6, V.G, V.H, and V.I (involving the use of exhibits, depositions,
witness lists, and glossaries of technical terms), shall apply to all hearings scheduled on
motions for preliminary injunction.
E. If appropriate, I may refer a motion for preliminary injunction to the
assigned Magistrate Judge for hearing and recommended decision or, with the consent
of the parties pursuant to 28 U.S.C. § 636(c), for hearing and disposition by order.
F. Notwithstanding D.C.COLO.LCiv R 81.1(b), any pending motion for
temporary restraining order or preliminary injunction originally filed in state court and re-
filed in this Court upon removal will likely be summarily stricken, without prejudice,
because the Colorado standard for such relief is not entirely congruent with the federal
standard.
VIII. STANDING ORDER FOR CERTAIN EMPLOYMENT CASES
This Court is participating in a Pilot Program for INITIAL DISCOVERY
PROTOCOLS FOR EMPLOYMENT CASES ALLEGING ADVERSE ACTION (“Initial
Discovery Protocols”), initiated by the Advisory Committee on Federal Rules of Civil
Procedure (see “Discovery Protocol for Employment Cases,” under “Educational
Programs and Materials” at www.fjc.gov).
A. These Initial Discovery Protocols will apply in all employment cases filed in
the District of Colorado on or after 1 December 2012, and which challenge one or more
employment actions alleged to be adverse, except:
1. Class Actions;
2. Cases in which the allegations involve only the following:
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a. Discrimination in hiring;
b. Harassment /hostile work environment;
c. Violations of wage and hour laws under the Fair Labor
Standards Act;
d. Failure to provide reasonable accommodations under the
Americans with Disabilities Act;
e. Violations of the Family Medical Leave Act; or
f. Violations of the Employee Retirement Income Security Act.
B. Parties and counsel in the Pilot Program shall comply with the Initial
Discovery Protocols, located on the District Court’s website. Within 30 days following
the Defendant’s submission of a responsive pleading or motion, the parties shall provide
to one another the documents and information described in the Initial Discovery
Protocols for the relevant time period. This obligation supersedes the parties’
obligations to provide initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1). The
parties shall use the documents and information exchanged in accordance with the
Initial Discovery Protocols to prepare the Fed. R. Civ. P. 26(f) discovery plan.
C. The parties’ responses to the Initial Discovery Protocols shall comply with
the Fed. R. Civ. P. 26 obligations to certify and supplement discovery responses, as
well as the form of production standards for documents and electronically stored
information. As set forth in the Initial Discovery Protocols, this Initial Discovery is not
subject to objections, except upon the grounds set forth in Fed. R. Civ. P. 26(b)(2)(B).
D. If any party believes that there is good cause why a particular case should
be exempted from the Initial Discovery Protocols, in whole or in part, that party may
raise the issue with the Court.
IX. SPECIAL INSTRUCTIONS FOR CRIMINAL MATTERS
A. General Information
Unless specifically stated otherwise and where applicable, all of the
Revised Practice Standards set forth in this document apply with full force and effect to
all criminal matters.
B. Deadlines
The method of computing time set forth in Fed. R. Civ. P. 6 applies to all
pretrial motions filed in criminal matters.
C. Reserved
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D. Order to Confer Regarding Discovery Motions
I will not consider any motion related to the disclosure or production of
discovery that is addressed by the Discovery Memorandum and Order and/or Fed. R.
Crim. P. 16, unless prior to filing the motion counsel for the moving party has conferred
or made reasonable, good-faith efforts to confer with opposing counsel in an effort to
resolve the disputed matter. If the parties are unable to resolve the dispute, the moving
party shall state in the motion the specific efforts which were taken to comply with this
Order to Confer. Counsel for the moving party shall submit a proposed order with all
such motions, opposed and unopposed. Opposed disclosure or discovery motions
which do not demonstrate meaningful compliance with this Order to Confer will be
stricken.
E. Expert Disclosures
Expert witness disclosures pursuant to Fed. R. Crim. P. 16 shall be made
not later than 14 days prior to the Final Trial Preparation Conference, and any
challenges to such experts shall be made not later than 7 days prior to said Conference.
Disclosures regarding rebuttal expert witnesses shall be made not later than 7 days
prior to the Final Trial Preparation Conference, and any challenges to such rebuttal
experts shall be made not later than the day prior to said Conference.
F. Plea Agreements
1. Other than in exceptional circumstances in which the interests of
justice require otherwise, I do not accept plea agreements prepared pursuant to Fed. R.
Crim. P. 11(c)(1)(c). Such a plea agreement will be considered, if at all, only if the
parties propose a sentencing range of not less than 18 months.
2. No plea agreement shall identify whether a defendant has agreed
to cooperate with the United States or other jurisdiction with respect to the investigation
or prosecution of others. Consequently, no plea agreement shall contain any reference
to any cooperation agreement between the defendant and the government, to any
potential for a motion under 5K.1.1 of the United States Sentencing Guidelines
(“U.S.S.G.”), or to any other statutory or guideline calculation or adjustment predicated
on such cooperation.
3. Plea Agreement Supplement
a. In all criminal cases resolved by plea agreement in which the
defendant’s cooperation against others is part of the agreement, the parties shall
prepare and provide to the Court, in addition to the Plea Agreement and Statement by
Defendant in Advance of Plea provided for by D.C.COLO.LCrR 11.1(c) and (d), a Plea
Agreement Supplement. At the conclusion of the change of plea hearing, the courtroom
deputy will file the Plea Agreement Supplement in the Electronic Case Filing (“ECF”)
system as a Court-only entry.
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b. The Plea Agreement Supplement shall contain, in
substance, the following statement: “The parties agree that the following additional
terms and provisions are part of the Plea Agreement:”. Thereafter, the Plea Agreement
Supplement shall fully set forth all terms and provisions of the agreement between the
parties that were omitted from the Plea Agreement because of the restriction required
by IX.F.2, above, together with all U.S.S.G. computations and statutory implications of
the additional plea agreement provisions.
c. The Plea Agreement Supplement shall be signed by all
persons who sign the Plea Agreement.
d. A copy of the Plea Agreement Supplement shall be provided
to Chambers together with the Plea Agreement in the same time and manner as
provided for by D.C.COLO.LCrR 11.1(c).
e. The Plea Agreement Supplement shall be tendered to the
Courtroom Deputy Clerk in the same time and manner as provided for by
D.C.COLO.LCrR 11.1(e).
G. Notices of Disposition
Any Notice of Disposition filed pursuant to D.C.COLO.LCrR 11.1A shall be
treated as a pretrial motion within the meaning of 18 U.S.C. § 3161(h)(1)(D) for the
purpose of computing time under the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161–
3174. In accordance with the same local rule, absent an Order permitting or directing
otherwise, a Notice of Disposition shall be filed no later than 14 days before the trial
date.
H. Joint Motions
In all criminal cases involving two or more defendants, counsel for
defendants are strongly encouraged, to the fullest extent possible given the similarity of
the facts and legal positions between or among each other, to file joint, as opposed to
individual, motions on all issues and matters of common ground or interest.
I. Hearings
1. Change of Plea Hearing
a. Upon the filing of a Notice of Disposition, my staff will set a
change of plea hearing on the Court’s calendar.
b. Pursuant to D.C.COLO.LCrR 11.1F, counsel must always
bring the signed original and one copy of the “Statement by Defendant in Advance of
Change of Plea” and the “Plea Agreement and Statement of Facts” to the courtroom at
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the time of the hearing. In addition, a copy of the plea documents must be e-mailed to
Chambers no less than 7 days before the change of plea hearing. Failure to timely
provide these documents to Chambers may cause the hearing to be vacated. All
counsel should read the Court’s “Order Setting Change of Plea Hearing” carefully.
c. The AUSA assigned to a criminal matter must be present at
the change of plea hearing. If that AUSA cannot attend in person, s/he must be present
by phone and a fully-briefed substitute AUSA must be physically present in the
courtroom.
2. Sentencing Hearing & Related Filings
a. At the change of plea hearing, my Courtroom Deputy Clerk
will set a sentencing hearing on the Court’s calendar. The sentencing hearing will
generally be set approximately 4 to 5 months after the change of plea hearing.
b. All sentencing-related motions and sentencing-related
statements must be filed no later than 14 days prior to the date of the sentencing
hearing. Responses to such motions or statements must be filed at least 7 days prior to
the date of the sentencing hearing. In addition, sentencing-related filings are not to be
filed under seal unless counsel is able to provide a compelling reason for sealing the
filing. In my view, the mere inclusion of information of a personal nature in a filing is not
a compelling reason to seal such a filing.
c. Sentencing-related filings not in compliance with this
Practice Standard may result in a continuance of the sentencing hearing. The
deadlines for filing such papers will be extended only upon the showing of good cause.
d. The above deadlines do not in any way alter or affect
deadlines for the filing of objections or other pleadings established pursuant to
Fed. R. Crim. P. 32.
3. Final Hearing on Petition on Supervised Release
a. The Probation Officer shall file the Supervised Release
Violation Report with the Court not later than 21 days prior to the Final Hearing on
Supervised Release.
b. All motions and statements regarding any matter to be taken
up at the Final Hearing, including any objections to the Report, must be filed not later
than 10 days prior to the Hearing. Responses to such papers must be filed not later
than 5 days prior to the Final Hearing.
c. All filings not in compliance with this Practice Standard may
result in a continuance of the Final Hearing. The deadlines for filing such papers will be
extended only upon the showing of good cause.
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J. Superseding Indictments
After filing a superseding indictment, the Government shall file a separate notice
of such, attaching as an exhibit a redlined comparison between the superseding
indictment and the previous indictment.
K. Motions to Suppress
In any motion to suppress, the moving party must state whether an evidentiary
hearing is requested and, if so, provide a brief explanation as to why the movant
believes such a hearing is necessary. In any response to a motion to suppress, the
non-moving party must also explain whether or not it believes an evidentiary hearing is
required, and why.
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