UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
THE HONORABLE DAVID M. EBEL
Byron White United States Courthouse
1823 Stout Street, Room 109L
Denver, Colorado
(303) 844-3800
District Court Courtroom:
Byron Rogers Federal Building
1929 Stout Street, Room C202
This is a summary of the procedures that I use in the trials of civil and
criminal cases. Please familiarize yourself with these matters, and follow the
attached check-list. These procedures supplement the Federal Rules of
Criminal and Civil Procedures and Local Rules of the District.
When addressing the Court for any reason, parties should always stand at
the lectern and speak into the microphone.
The Court is punctual. Counsel and parties should arrive 10-15 minutes
before scheduled hearing times. Turn off all cell phones and pagers before
entering the courtroom.
Pre-Trial and General Procedures
Generally, the magistrate judge assigned to the case will conduct the Rule
16 scheduling conference and set status, settlement and pre-trial conference
dates. Upon completion of the final pre-trial conference, counsel should come
to my Chambers to obtain final trial preparation conference and trial dates.
Scheduling should be planned with the assumption that all cases will go to trial
within one year of filing, absent extraordinary circumstances. Counsel should
expect to be given a firm trial date within 60 to 120 days from the final pre-trial
conference.
Briefs in support and in opposition to Motions to Dismiss and Motions for
Summary Judgment may not exceed twenty pages in length unless the Court
has granted a page extension prior to five days before the brief is due. Reply
briefs shall not exceed five pages in length. Trial briefs may be filed with the
Court’s permission and shall not exceed ten pages unless the Court has granted
a page extension.
When requesting a change in hearing dates, parties should endeavor to
file unopposed, stipulated or joint motions. Please include proposed dates that
have been cleared on all counsel’s calendars for the Court to consider. There is
no guarantee that the Court will use these proposed dates. All motions should
be accompanied by a proposed Order sent to my Chambers via e-mail
(
[email protected]) and filed in Microsoft Word or Word
Perfect or in a format in accordance with the District of Colorado ECF
Procedures V.L (instructions on submission of a proposed order). Do not
hesitate to contact the ECF Help Desk at 303-335-2050 with any questions.
Any motion or brief which a party wishes the Court to consider is to be
filed at least 72 hours in advance of a hearing.
Trial / Hearing Procedures
There is one lectern in the courtroom from which attorneys will address
the Court, witnesses and the jury. Counsel tables are arranged slightly
perpendicular to the Bench.
a) Plaintiffs are seated at the table closest to the jury box.
b) Defendants are seated at the table farthest from the jury box.
No soda, coffee or food is allowed in the courtroom. Water bottles are
permitted, and water and cups are provided.
The administration of an oath or affirmation is a solemn public ritual and
an integral part of any judicial proceeding. The complete attention of all in the
courtroom to such oath taking is mandatory.
The Courtroom Deputy will present exhibits and depositions to the
witnesses. Thus, you may simply say, “Please look at Exhibit No. 1,” or “Please
refer to your deposition taken on . . . .” and the Courtroom Deputy will provide
the exhibit or deposition to the witness.
In jury trials, bench conferences are strongly 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.
Jury trials normally begin on Mondays at 9:00 a.m. Counsel should be
present one hour before the scheduled trial time, to go over the attached trial
checklist with the Courtroom Deputy. Jury selection will begin as close to 9:00
a.m. as possible. Bench trials begin at 9:00 a.m. and counsel should be present
to check in with the Courtroom Deputy at 8:30 a.m.
Subsequent trial days will normally begin at 9:00 a.m. and continue
until 5:00 - 5:30 p.m. The lunch recess will usually begin between noon and
12:30 p.m. and will usually be of 75-minute duration. We will usually take a mid-
morning and mid-afternoon break for approximately 15 minutes.
Please advise the Courtroom Deputy of any late or anticipated filings to
ensure that all necessary documents are present during trial. I will be available
for any preliminary matters.
Criminal Matters Only
NOTE: The Court disfavors plea agreements pursuant to F.R.Crim.P.
11(c)(1)(c) since the Booker and FanFan decisions, and they will only be
accepted in certain circumstances.
Changes of Plea are set approximately four (4) weeks from the date of the
Notice of Disposition, unless specifically requested otherwise in the Notice.
Changes of Plea – 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 the time of the hearing.
[This is in addition to the courtesy copy required to be delivered to chambers 48
hours before the Change of Plea hearing.] Please read my “Order Setting
Change of Plea” carefully.
The AUSA assigned to a criminal matter must be present at a change of
plea. If the AUSA cannot attend in person, he/she must be present by phone
and a fully briefed substitute AUSA must be physically present.
*****
Please direct any questions concerning exhibits or courtroom equipment
to Nicholas Richards at (303) 335-2180. Mr. Richards will put you in touch with
a courtroom deputy, and counsel should schedule times before trial with the
courtroom deputy to familiarize themselves with the Courtroom’s technology.
Please also contact Mr. Richards regarding transcripts. He can give you
contact information for the court reporter. If counsel requires special services
such as daily copy or real time, they should make such request at least 30 days
in advance of the trial date.
We are sensitive to the anxieties of trial practice, and we hope to
minimize apprehension about local practices. If you have any questions, call my
Judicial Assistant at (303) 844-3800.
CHECKLIST FOR FINAL TRIAL PREPARATION CONFERENCE
1. By 3:00 p.m. two days before the trial preparation conference, the parties
shall submit, via email to
[email protected] the
following:
a. A list containing the names and addresses of each witness to be
called in your case in chief, using the form provided online. Set
forth the best estimate of the time required for each witness for
direct examination and a brief description of the nature of the
testimony of the witness. This witness list is counsels’
representation, upon which opposing counsel may rely, that the
witnesses listed will be present and available for testimony at trial.
Witnesses not listed in the pretrial order may not be listed at the
final trial preparation conference absent stipulation or a showing of
good cause.
b. A list of proposed exhibits, using the form provided online. Exhibits
not listed in the pretrial order may not be included on the final
exhibit lists except by stipulation or a showing of good cause. Only
those exhibits listed on the final exhibit lists presented at the final
trial preparation conference may be presented at trial. Counsel
shall have stipulated to the authenticity and admissibility of exhibits
to the extent possible in good faith.
c. A set of proposed jury instructions, submitted in accordance with
this Court’s memorandum that follows, addressing the instructions
in greater detail.
d. Any proposed voir dire questions the parties would like the Court to
ask.
2. At the Final Trial Preparation Conference, the parties shall submit the
following:
a. A glossary of any unusual or technical terminology for the Court and
the Court Reporter.
b. Provide citations to any case law that counsel believes the court
should review before trial. Limit the citations to those which are
believed to be controlling or most persuasive. String cites are not
allowed.
c. Submit any stipulated amendments to the pretrial order.
3. Motions in limine are discouraged.
UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
THE HONORABLE DAVID M. EBEL
Byron White United States Courthouse
1823 Stout Street, Room 109L
Denver, Colorado
(303) 844-3800
District Court Courtroom:
Byron Rogers Federal Building
1929 Stout Street, Room C202
CHECKLIST FOR TRIAL
1. Witness List: Two days prior to the Final Trial Preparation Conference, by
3:00 p.m., counsel shall submit via email to
[email protected]
their witness list. At the Final Trial Preparation Conference, each side must
provide the Courtroom Deputy with three paper copies of a list of its witnesses
(using the form included on-line), whether or not they have been listed in the pre-
trial order. These are in addition to the copy emailed to Chambers prior to the Final
Trial Preparation Conference. One copy will be made available to the Court
Reporter, which will avoid the necessity of asking for the spelling of the witness’
name. Please be sure that names are spelled correctly, and estimate the time of
testimony for direct and cross-examination.
2. Exhibit List: The parties shall prepare a joint list of exhibits that they
expect to offer (using the form included on-line). Two days prior to the Final
Trial Preparation Conference, by 3:00 p.m., counsel shall submit via email to
[email protected] the exhibit list. At the Final Trial
Preparation Conference, three paper copies of the list must be provided to the
Courtroom Deputy. These are in addition to the copy emailed to Chambers prior
to the Final Trial Preparation Conference. I do not require that exhibits be
offered in sequence. I DO require counsel to meet and confer before trial to
stipulate to the authenticity and admissibility of exhibits prior to trial, marking the
appropriate boxes on the attached form. NOTE: Although they are stipulated, it
does not mean they are admitted automatically.
3. Exhibits: All exhibit are to be listed numerically without repetition.
Plaintiff’s exhibits should be marked P-1, P-2, P-3 . . . . Defendant’s exhibits
should be designated D-1, D-2, D-3 . . . . Please also affix labels to your
exhibits before trial. The civil action number shall also be placed on each of the
exhibit stickers. Blank exhibit stickers are available at the front counter of the
Clerk’s Office. Multi-page exhibits must be permanently fastened and each
page numbered consecutively to prevent any pages from becoming separated or
omitted. All exhibits in proper sequence shall be delivered to the Courtroom
Deputy on the morning of trial. We encourage the use of 3-ring binders to hold
exhibits. The notebooks should properly function and contain a small enough
number of exhibits so that witnesses can turn the pages in the notebook with
ease. In no event should the notebook be bigger than a 3-inch notebook.
Counsel must provide copies of all exhibits to opposing counsel and have copies
for their own reference. An original exhibit notebook and two copies for the
Court are required. There will be no juror notebooks of exhibits. (Jurors will be
given blank workbooks in which they can record brief notes during trial.) Jurors
will deliberate with the admitted exhibits in the original exhibit notebook(s).
NOTE: Demonstrative exhibits and documents used to refresh memory must
also be marked. All exhibits are to be displayed on the Elmo and must fit on the
Elmo. No over-sized exhibits are to be used unless requested by motion.
4. Written Curricula Vitae: In trial to the Court, a vita, marked as an exhibit,
will usually suffice for the qualifications of an expert witness.
5. Depositions: At the beginning of trial, you should deliver to the Courtroom
Deputy the originals of all depositions you intend to use. In a trial to the Court,
you should deliver such depositions to chambers one week prior to trial. If you
are going to offer deposition testimony in lieu of a live witness, prepare your
page and line designations and cross-designations ahead of time and submit
these to the Courtroom Deputy in writing, in duplicate. You are also requested
to provide a person to read answers if there is a jury trial. DO NOT mark
depositions as exhibits.
6. Trial Briefs: Please advise the Court if you wish to file trial briefs, which
may not be filed unless requested by the Court. Briefs requested shall be filed
on a date to be set by the Court. Unless otherwise specified, trial briefs shall be
limited to ten (10) pages.
7. Jury Costs: In order to avoid assessment of jury costs, you must notify the
Court of a settlement before 12:00 noon on the last business day before the
scheduled trial date. See D.C.COLO.LCivR 54.2.
8. Standing for Jurors: As a matter of courtesy, it is the Court’s policy that
everyone stand when the jury enters or leaves. (EXCEPTION: Do not stand for
the jury panel members as they come into the courtroom initially for jury
selection.)
9. Oath-Taking: Any public oath-taking administered to witnesses,
interpreters and Court Security Officers require the undivided attention of
counsel as well as all others in the courtroom.
10. Forms of Address: As a sign of respect for the institution, you will refer to
the judge as “Your Honor” or “the Court.” Please refer to all other persons by
their surnames, prefaced by Mr. or Ms. (Miss or Mrs. only when appropriate)
unless referencing a quote in which only a first name was used or where a
surname cannot be recalled. You may refer to both physicians and Ph.D.’s as
“Doctor,” and the law enforcement officials as “Agent” or “Officers,” as
appropriate.
11. Sequestration Orders: Sequestration orders are to be strictly observed.
Expert witnesses may not sit in on trials in which sequestration orders have
been entered except with express prior authorization. Witnesses who have not
yet testified at trial should not be provided transcripts of trial proceedings. Once
excused, witnesses may sit in the courtroom, unless a party has a good faith
belief that the witness will be called again for rebuttal purposes and makes an
ongoing exclusion request with the Court.
UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
THE HONORABLE DAVID M. EBEL
Byron White United States Courthouse
1823 Stout Street, Room 109L
Denver, Colorado
(303) 844-3800
District Court Courtroom:
Byron Rogers Federal Building
1929 Stout Street, Room C202
MEMORANDUM
TO: Trial Counsel
FROM: Judge David M. Ebel
RE: Proposed Jury Instructions
First, and most importantly, counsel for both sides should meet together
well in advance of trial and stipulate to as many proposed jury instructions
as possible. It is often possible for trial counsel to stipulate to all stock
instructions, and frequently counsel are able to agree on most substantive
instructions as well.
By 3:00 p.m. two days prior to the Final Trial Preparation
Conference, the parties should submit, via email to
[email protected], three separate sets of instructions:
1) Stipulated – This first set should contain instructions to which both
plaintiff and defendant have agreed;
2) Competing – This second set should contain instructions on issues
where the parties agree an instruction is needed, but disagree on the wording of
the instruction; and
3) Additional/Non-Stipulated – This third set should contain any
additional instruction which a party requests, but to which the other party
objects.
The instructions should NOT be numbered and there should be no repetition.
However, the pages should be numbered. That is, if the parties stipulate to a
particular instruction, then that instruction should be submitted as a stipulated
instruction only, and no similar instruction should appear in either plaintiff’s or
defendant’s set of instructions.
I require two sets of these three groups of instructions. One set should
have citations listed at the bottom of each instruction and the other should be
clean, meaning no citations or titles. My staff will prepare a final clean set to
give to the jury following closing arguments. The set emailed to the Court
should be submitted in Microsoft Word, if possible, and should not contain
citations.
In addition, the instructions must conform to the following requirements:
(1) Instruction titles: Each instruction should include only the title
“INSTRUCTION NO. ” at the top – centered, in all CAPS and not
bolded or underlined. DO NOT fill in the numbers, as my law clerk will
number the instructions after I have determined the entire set of
instructions to be submitted to the jury. Thus, DO NOT entitle an
instruction “PLAINTIFF’S INSTRUCTION NO. 4,” for example. There
should be a two-line break between the title and the text of the instruction.
(2) Font: Instructions should be submitted in Arial 12 point font.
(3) Line spacing: Text of the instructions should be 1.5.
(4) Justification: Except for the centered title explained above, please use a
left margin justification, not full justification.
(5) Emailed set: The parties should submit their sets of instructions as one
continuous document with hard page breaks between each separate
instruction.
(6) CJI: In a diversity case in which Colorado law applies, I prefer that you
submit instructions that conform to the Colorado Jury Instructions (CJI).
CJI may also be used for stock instructions in a federal question case.
(7) Tenth Circuit Model Jury Instructions: In criminal matters, where
applicable, I prefer that you submit instructions that conform to the Tenth
Circuit Model Jury Instructions.
(7) Stylistic conventions: When referring to this Court in the body of the
instructions, always capitalize the word “Court.” In addition, do not use
articles when referring to the parties. Do capitalize the parties. The
preferred format is: “Plaintiff” or “Plaintiff Smith” rather than “the Plaintiff”
or “plaintiff Smith.”
(8) Please Proofread your submissions carefully.
FOR YOUR REFERENCE, EXAMPLES OF PROPOSED INSTRUCTIONS
WITH AND WITHOUT CITATIONS ARE ATTACHED. If the instructions
submitted do not conform to these guidelines, they may be returned to
you for reformatting.
Additional Instructions: If, during the course of trial, you determine that
additional instructions are necessary, please submit, via email to
[email protected], and give a paper copy, one with authority
and one without, to my law clerk as soon as possible. Of course, you must also
give a copy to opposing counsel. Please note that my law clerks will be your
primary contact for all matters relating to jury instructions.
Jury Instruction Conference: We will have an instruction conference shortly
before the case goes to the jury, usually during a lunch break or after the jury is
excused for the day. If possible, we will provide you with a draft set of
instructions ahead of time. At the instruction conference, I will go through the
draft set with you and you will have an opportunity to request changes to the
proposed instructions. You also will have an opportunity to state objections on
the record at the conclusion of the conference.
Please read the above instructions carefully. If you have any questions,
you may call my law clerk.
Thank you for your cooperation in ensuring a smooth trial.
INSTRUCTION NO.
You are the sole judges of the credibility of the witnesses and the weight
to be given their testimony. You should take into consideration their means of
knowledge, strength of memory and opportunities for observation; the
reasonableness or unreasonableness of their testimony; the consistency or lack
of consistency in their testimony; their motives; whether their testimony has
been contradicted or supported by other evidence; their bias, prejudice or
interest, if any; their manner or demeanor upon the witness stand; and all other
facts and circumstances shown by the evidence which affect the credibility of
the witnesses.
Based on these considerations, you may believe all, part or none of the
testimony of a witness.
Colorado Supreme Court Committee on Civil Jury Instructions, CJI 3:16 (4th Ed.)
Judge David M. Ebel
Case No. Exhibits Page of
Exhibit No. Brief Description Offer Stip IN OUT Remarks
1
2
3
WITNESS LIST FORM
Judge David M. Ebel
Date:
Case No.
Case
Caption: v.
Plaintiff/Defendant Witness List
Will Call Witnesses Estimated Time for Examination
(name & summary of testimony) Direct Cross
1.
2.
etc.
May Call Witnesses Estimated Time for Examination
(name & summary of testimony) Direct Cross
1.
2.
etc.
