PRACTICE STANDARDS
Revised 12/1/2024
Senior Judge R. Brooke Jackson
It may be helpful to counsel to have some idea in advance as to the
procedures I generally follow on matters not covered by the rules and local rules.
These “guidelines” are not intended to cause unnecessary expense or to impose
any particular style of trial advocacy. Deviation from these guidelines will
always be considered for good cause in a particular case.
PRETRIAL
Scheduling Conference
We will issue an order when a civil case is filed asking that the parties set
a scheduling conference. That order should be self-explanatory. Among other
things, we will set a trial date and a trial preparation conference at this
conference.
Pleadings
Counsel are encouraged to plead their claims and defenses with care,
asserting only those claims and defenses that they truly have support for when
the pleading is filed. I discourage the automatic use of lists of 10-20 affirmative
defenses. I realize that you have not yet had an opportunity fully to explore the
facts when you submit your initial pleading, and I will liberally allow
amendments of pleadings as the case is further developed.
Motions and Briefs
Motion practice can be a critical part of the prosecution or defense of a
case. However, it also can be costly, time-consuming, a cause of delay, and a
burden on the court. In an effort to improve dispositive motion practice in civil
cases (excluding pro se inmate cases), I am using the following recommendation
of the Institute for the Advancement of the American Legal System (“IAALS”):
Before filing a motion to dismiss, the parties should meet and confer
in a good faith, substantive, and meaningful way. The meet and confer need
not be in person, although in-person meetings are encouraged. However, it is not
enough for counsel to call opposing counsel simply to ask that the case be
dismissed, nor is email a substitute for talking with opposing counsel. The key
is that there be a good faith commitment to a meaningful discussion. Counsel on
both sides should be prepared to discuss:
• The issues that the movant intends to raise in the motion to
dismiss;
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• Whether the parties could resolve all of some of those issues
without a motion;
• The reasons that the movant believes those issues are legally
meritorious;
• The reasons that the non-movant believes the motion should be
denied;
• Whether there are any alternatives to the motion that would
suffice (for example, could the plaintiff simply amend the
complaint?); and
• Whether the motion could be resolved through a streamlined
process (for example, letters instead of briefs, or in a
conference with the court).
After the meet and confer process has been completed, the moving party
will file and serve a short letter (not to exceed three pages including signature
block) setting forth the basis for the anticipated motion, and the opposing party
may file a similarly short responsive letter within seven days. The Court will
then evaluate the parties’ positions and determine what the next steps should be.
The Court will not consider motions to dismiss unless the moving party has
complied or at least attempted to comply with these requirements. Defendants’
deadline to respond to the complaint will be stayed pending the Court’s
consideration of the letter(s). The Court will not impose this conferral/letter
protocol in pro se prisoner cases.
This expands on local rule 7.1(a) which imposes a duty to confer on non-
dispositive motions. There, too, “confer” means talking with opposing counsel,
not exchanging emails. Counsel should give opposing counsel a reasonable
opportunity to respond to a request to confer, and opposing counsel should be
timely in responding.
With respect to motions for summary judgment, during the initial
Scheduling Conference the Court will set a date by which a party may file a
letter notifying its intent to file for summary judgment. Response letters are
due within seven days after the moving party files a notice of intent. These dates
will typically be at or shortly after the discovery cutoff. The notice will be a
short (not to exceed three pages) indication as to why the party believes that
summary judgment is appropriate. The response will be a similarly short
response indicating material issues of fact that the respondent believes to be
genuinely disputed. The Court will not preclude a party from filing a motion for
summary judgment but will be able to make suggestions regarding issues and
briefs based on the notice and response.
Except for summary judgment motions, the motion and response should
not exceed 15 pages (replies 5 pages). Summary judgment motions and
responses should not exceed 20 pages (replies 10 pages). I count pages starting
with the top of the caption and finishing with the bottom of the certificate of
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service. Filing the motion and a supporting brief separately does not increase the
number of pages. Please do not ask for an exception unless you have very
diligently tried to confine your paper to the foregoing limits and simply cannot.
Finally, please limit the number of exhibits you attach to your papers. When I
see a motion for summary judgment with 20 exhibits comprising 300 pages of
material, for example, my first thought is that there probably are material factual
disputes.
String citations should be avoided whenever possible. I am more
interested in knowing the one or two authorities that best support your position.
It is always helpful to me to have a timeline of the key events included with your
brief. A good, easy to follow timeline will also be very helpful to the jury at
trial. Develop a reputation with my staff and me for citing cases accurately, not
overstating their holdings, and for being candid in your arguments.
Please avoid such expressions as “counsel conveniently overlooked,”
“counsel attempts to mislead the court by stating,” the opponent’s argument is
“outrageous” or “absurd,” etc. Life is too short for that stuff.
Parties frequently, often jointly, file a motion for a protective order
concerning the treatment of information they regard as confidential. I do not
simply adopt the standard form protective order often used in this District. I
have no problem with whatever restrictions you wish to place on one another’s
treatment of such material. However, I will presume that anything filed with
the court is public information. Restriction of public access is appropriate for
such things as Social Security numbers, residential addresses and true trade
secrets and may be appropriate for other categories such as criminal histories and
medical information. If documents containing truly personal or trade secret
information must be filed, then consider redacting that information. If it is
critical that I see the information, then request a narrow order restricting public
access and show good cause. Please certify in your motion that you have
reviewed the Court’s practice standards and have tailored your proposed order
accordingly, and I will grant it.
My law clerks can answer questions about the status of motions (303-335-
2253, for odd numbered cases; 303-335-2254, for even numbered cases). When
the motion is ripe, the law clerk will bring it to my attention as soon as possible,
frequently with a memo or draft order giving me their initial impressions of the
issues and the merits. If a motion has been fully briefed and seems to have fallen
through the cracks, feel free to alert the law clerk. We want to get you a
decision as soon as we can.
I do not ordinarily set hearings on motions in civil cases unless you ask
for oral argument. If you ask for oral argument it usually will be granted.
Motions in criminal cases are handled differently – nearly always decided from
the bench at the conclusion of a hearing.
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Discovery Disputes
We all know that discovery can be contentious, and that large amounts of
time and money can be spent propounding and responding to discovery, despite
the mandatory disclosure rules and other procedural reforms. This can be
minimized if your disclosures are fair and complete, your discovery is
reasonable, and disputes are rare. I suggest that you avoid such practices as
including lengthy sets of instructions and definitions with your questions and, in
responses, asserting general objections and then including “Subject to the general
objection, [the party] responds as follows” in most or all individual responses.
Instead, try to ask straightforward questions and either answer or object, rarely
both.
I particularly urge you to be forthcoming in your disclosure of experts and
expert testimony. I do not wish to deprive you, your client, the court or the jury
of information that might be helpful in resolving the case. However, I will
enforce the disclosure requirements, even if it means witness preclusion.
I will probably handle most discovery disputes myself. Please do not file
motions or briefs. Instead, if you have conferred but cannot resolve the dispute,
contact Chambers and set a telephone hearing. I find that usually we can resolve
the issues relatively quickly and inexpensively that way. Occasionally I might
refer a discovery dispute (such as one that involves extensive review of
documents) to a Magistrate Judge or to a Special Discovery Master.
FINAL PRETRIAL/TRIAL PREPARATION CONFERENCE
I have not found a Final Pretrial Order to be particularly helpful, so I will
not require that you prepare one. Instead, the Trial Preparation Conference will
be a working session to discuss any disputes concerning witnesses, exhibits, in
limine matters (an exception being Daubert motions which should generally be
set for a separate evidentiary hearing), and jury instructions. Please file motions
in limine and Daubert motions far enough in advance of the Trial Preparation
Conference so that the other side can respond before the conference. Counsel
should exchange essentially final lists of witnesses and exhibits and confer
before the conference.
Please email your single set of joint proposed jury instructions in Word
format to Chambers at
[email protected] one week before
the Trial Preparation Conference. It will help me if you can pair disputed
instructions on each subject, indicating which is plaintiff’s and which is
defendant’s proposed version, so that I can more easily compare your respective
positions on the instruction. For further ease of reference, please insert page
numbers on the proposed instructions.
Supporting authorities should be provided for disputed instructions. I do
not use certain stock instructions that are sometimes given at the beginning of
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the case (“Good morning, my name is Judge Jackson, this is a civil case,” etc.). I
generally need an instruction briefly summarizing the positions of the parties
(Instruction No. 1); basic stocks on the burden of proof, evidence, credibility,
etc.; the elements of the claims and defenses; miscellaneous things like causation
and definitions; damages; and verdict forms. To the greatest extent possible,
consistent with the law and the elements set forth in standard jury instruction
books, instructions should be written in plain, understandable English. Generally
speaking, the fewer instructions the better. Try to avoid very short instructions
by combining instructions concerning similar subject matter.
Lead trial counsel should attend the Trial Preparation Conference if
possible. Out of town counsel may attend by VTC or telephone if they wish.
BEFORE TRIAL
Please contact our Courtroom Deputy at least one week prior to trial with
any questions regarding exhibits, courtroom protocol, or to schedule technical
training. As a senior judge I do not have a Courtroom Deputy regularly assigned
to my Chambers, but frequently it will be Meghan Smotts (303-335-2095); and if
not, she can direct you to the appropriate person. The court has monitors,
screens, white pads, easels, and an ELMO. The courtroom is equipped with
HDMI and VGA plug-ins for displaying exhibits electronically. Other equipment
must be provided by counsel.
TRIAL
Jury Selection
On the first day of trial you will receive a list of the jurors with basic
information (name, occupation, age, education). When potential jurors are
seated in the courtroom, I will give them a brief statement of the case. I will
probably use my own words to describe the case. I will likely conduct a limited
initial voir dire, including putting up a few additional basic questions on a screen
for prospective jurors to answer (such as occupation, spouse/partner occupation,
length of residence in Colorado, prior jury service, any reason he or she cannot
serve).
I will then turn it over to you. I believe in attorney voir dire, and I do not
place time limits on it. However, if I believe that your voir dire has become too
repetitive, irrelevant, or boring, I might ask you to move on or wrap it up. I
encourage you to ask open-ended questions designed to get jurors talking and to
examine possible prejudices or biases, to keep it moving, and not to be afraid to
mix in a little humor.
Counsel are not required to remain behind the lectern during voir dire,
opening statements, closing arguments, or any other time when they need to be
away from it. So long as you are easy to hear without the microphone and do
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not invade the jurors’ “space,” you may move around the courtroom at will.
Also, please speak slowly enough that the reporter will not have to struggle
to keep up. You should also encourage and remind your witnesses not to
speak too rapidly. During routine witness examinations the reporter usually
finds it to be helpful for you to use the microphone at the lectern. You are not
required to ask the Court for permission to approach a witness. Please do ask for
permission to approach the bench. Try to limit bench conferences to those where
an immediate ruling is necessary. They are inconvenient to our court reporter.
In particularly lengthy, complicated or highly publicized cases, I will be
happy to work with you on putting together a short questionnaire to be filled out
by prospective jurors before voir dire begins. If you want something like this,
please confer with opposing counsel and be prepared to discuss specifics at the
Trial Preparation Conference. A final proposed juror questionnaire should be
filed at least one week before the start of trial for the Court’s final approval as
jury staff will need to prepare copies for the jurors the Friday before trial.
I tend not to select alternate jurors, because I do not like to ask people to
spend several days as a juror only to be sent home without the opportunity to
participate in the deliberations. Generally, in civil cases we will go with seven
jurors, all of whom will deliberate if they are all still present. In criminal cases
we generally will go with 12. If you believe that an alternate juror is necessary
in a given case, we can discuss this and, if I agree, discuss the method of
selection of an alternate at the Trial Preparation Conference.
Opening Statement
I am willing to pre-instruct the jury, i.e., give them a full but preliminary
charge, before opening statements. This can only be done, however, if we have
worked out the instructions in advance. My view is that this gives you the
opportunity, if you wish, to address what you must prove as you are summarizing
what you anticipate the evidence will be. I also believe that if jurors understand
the elements of the claims and defenses up front, they can better understand the
possible significance of the evidence as it comes in. Any pre-instructions can be
modified, supplemented or deleted based upon developments during the trial.
Generally, I do not place time limits on opening statements, but again, I
might interrupt if it is tedious or argumentative. The use of charts, graphs,
photographs, and other demonstrative aids in opening statements will be
permitted and encouraged. Counsel may use white pads, overhead projectors,
Power Point slides, or any other means of display that you desire. The key to the
foregoing, however, is advance disclosure. Counsel need not disclose in advance
bullet points that they may wish to use on white pads, slides or otherwise, i.e.,
their outlines for their speeches. However, copies of any exhibits including
demonstrative exhibits should be exchanged before trial as required by the rules.
If there are objections, they will be resolved at the Trial Preparation Conference.
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In long or complicated trials, I am open to permitting brief interim non-
argumentative statements by counsel between discrete segments of the trial.
These statements can be used to help the jury understand what part of your
evidence has been completed and what is coming next. The number of these
should be discussed at the Final Pretrial/Trial Preparation Conference.
Jury Aids
For emphasis I repeat here that a good timeline is generally very helpful.
Jurors will be permitted to take notes if they wish. Jurors will be permitted to
submit written questions for witnesses to the courtroom deputy while the witness
is on the stand.
My practice has been to invite counsel to approach the bench to read the
proposed juror questions and raise any objection you have. If I agree, the
question will either be modified or not asked. If I am satisfied that the question
is proper, I will read the question to the witness.
Witnesses
Final witness lists are to be filed by noon the Friday before trial.
Counsel should use their best efforts to have witnesses available so that
there will be no significant interruption of the trial waiting for a witness to
arrive. If you anticipate an unavoidable break in the chain of witnesses, please
let us know as far in advance as possible. I will try to work with the schedules
of experts and other witnesses to accommodate their needs and require as little
wasting of time as is possible. Taking witnesses out of order, meaning a defense
witness during plaintiff’s case and vice versa, will be permitted for very good
cause. I generally exercise my discretion not to grant “beyond the scope”
objections. Both sides may, if they choose, ask their questions, and the witness
can be excused. That is up to you, but generally, once a witness has testified, he
or she will be permitted to remain in the courtroom notwithstanding a
sequestration order.
Objections should be succinct, i.e., not speaking objections. If you need
to speak to your objection, we will generally do it at the bench or during a
recess. If an objection is sustained and counsel wishes to make a record, this will
be done during a recess or, if necessary, at the bench.
I probably will not sustain objections to leading questions when you are
going through background matters, undisputed matters, transitions, etc. When a
witness has a lapse of memory, you will be permitted a little leeway to lead to
jog his memory. You will generally be permitted to put anything in front of the
witness that might jog his or her memory. But, I will sustain objections to
leading questions when the witness is testifying about important facts that are or
might be disputed.
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When using depositions or other writings to impeach, please be prepared
to do it quickly and crisply. For example, if you wish to impeach with a
deposition, have your copy in front of you and know where the impeaching
material is. You may, the first time, ask a few non-argumentative questions
designed to educate the jury on what a “deposition” is, when it occurred, who
was present, an oath was given, etc. Alternatively, you may ask that I explain to
the jury what a deposition is, and I’ll be happy to do so.
There are different ways to impeach with a deposition, depending on
counsel’s style and preference. One way is to place the deposition in front of the
witness and call his or her attention to a specific page and line. Give opposing
counsel a brief but reasonable time to find the page and line in counsel’s copy of
the deposition. Then counsel may read the question and answer given in the
deposition. Alternatively, you may ask the witness to read his or her answer.
Assuming that there really is an inconsistency, you may, if you wish, follow up
with a question about which version is correct. I recommend that you avoid
trying to impeach on minor, unimportant matters or when there is no material
contradiction between the live testimony and the deposition testimony.
Depositions or excerpts as substantive evidence, whether video or not,
should be tightly edited to be as short as possible. Deposition testimony tends to
drag after about 15-20 minutes. If there is a dispute about excerpts of
depositions to be presented to the jury as substantive evidence, I will appreciate
receiving, at least one week before trial, a copy (hard or electronic) marked or
highlighted to show which parts each party wishes to present, objections, and a
brief marginal notation indicating the nature of the objection. Please confer with
opposing counsel before the Conference and resolve as many of these disputes as
possible. If the disputes are voluminous and cannot be resolved at the
conference, then it might be difficult or impossible for you to edit a video to
comply with the Court’s rulings in time for use during trial. The use of
stipulated summaries in lieu of actual testimony is encouraged.
In technical trials, it would help the court reporter to have a list of unusual
words and terms. If you want Realtime, daily or hourly transcripts, she needs 30
days’ notice. As a senior judge I do not have a court reporter regularly assigned
to my Chambers, but the Courtroom Deputy can identify the reporter or reporters
who will cover your trial.
Exhibits
Final exhibit lists are to be filed by noon the Friday before trial. Parties
are to label their exhibits with numbers for the plaintiff and letters for the
defendant. If the parties can agree on a different numbering system, that is fine
with the Court as long as we do not have a Plaintiff’s exhibit number 1 and a
Defendant’s exhibit number 1, for example. Generally, I do not distinguish
between “demonstrative” exhibits and other exhibits. All exhibits are marked
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and, if admitted, may be published to the jury and will be provided to the jury
during its deliberations.
Exhibits that are used solely for impeachment, where “surprise” is an
important element of the impeachment, need not be listed in advance.
Otherwise, all exhibits must be disclosed in compliance with the rules. Full and
fair disclosure is important to me. The “surprise” exception should be used
sparingly and will be strictly scrutinized so as not to become a means of hiding
evidence that should be disclosed.
Once an exhibit is shown to a witness and admitted, the courtroom deputy
will immediately publish it to the jury unless you provide a very good reason not
to. Imagine being a juror and watching lawyers and witnesses talking about a
map or a photo or any other exhibit but not being able to see it yourself. The flip
side of this is to use only those exhibits or portions of exhibits that you want the
jury to see or read. There usually is no reason to place a voluminous document
in evidence when only a few pages or just a paragraph is all you wish to use.
You may highlight the portion that you particularly wish to call to the jury’s or
the Court’s attention. You should have a notebook with hard copies of
documentary exhibits for the witness stand (this is the original and will go back
to the jury during deliberations) and one for the Court. You may have individual
notebooks for the jurors if you wish, but generally it is more efficient to display
your exhibits electronically and to avoid the hassle of individual notebooks.
Counsel will be permitted to have the witness go close to the jury box to
point out things on an exhibit if necessary, but ordinarily this should not be
necessary because the witness can mark on the electronic display of the exhibit
while remaining on the stand. But it is up to you to determine how best to use
visual evidence to make your case clear and interesting.
Closing Arguments
I generally will not place time limits on closings. Counsel will be given a
great deal of latitude to argue their case. Counsel must, of course, adhere to the
evidence admitted during the trial. However, counsel will be permitted liberally
to argue inferences from the evidence, to use analogies, and otherwise to make
their closings more interesting and useful for the jury. I recommend against your
making a closing argument that is just a lengthy rehashing of all the evidence.
Bench Trials
Much of this is equally applicable to bench trials. I do not require or
expect you to submit proposed findings and conclusions in advance, although
you may do so if you wish.
The Court Day
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We will generally start with the jury at 9:00 a.m., take a mid-morning
break, and stop around noon. Occasionally we recess around 11:45 and
occasionally we run into the noon hour, depending on how the witnesses break.
We will generally take about an hour, sometimes a little longer, for the lunch
break. We will take at least one mid-afternoon break. I have found that ending
the jury’s trial day in the range of 4:15 to 4:30 is welcomed by the jurors and by
court staff. If there is a particular need to run a little later to accommodate a
witness, we might occasionally continue until 5:00 or so.
Please try to plan so that motions that come up during trial can be handled
during recesses or before or after the jury’s trial day. Plan so that disputes about
instructions can be handled without wasting the jury’s time.
One exception I will sometimes make is that if, at the close of the
evidence, particularly in a long or complex trial, counsel needs some time to
prepare for closing argument, I might excuse the jury for “the rest of the
morning,” or “the rest of the day,” for that purpose. So long as this does not
unduly impose on the jurors’ time or give an advantage to one side or the other, I
understand that it often takes some time to prepare your summation.
Settlements on Eve of Trial
Please inform us of a settlement as soon as possible. At a minimum, we
need to know by noon of the business day before trial in order to call off
prospective jurors. I cannot reject your settlement even if it occurs on the
morning of trial, although we probably will require payment of jury costs. But I
make this request to you as a matter of courtesy to prospective jurors and
accommodation to the Court.
MISCELLANEOUS
Finally, look for ways to have fun in the practice of law. Things that
made law practice fun for me: cases where I got along well with opposing
counsel even though I was doing my level best to prevail in the case; spending
more time on trial preparation and trial, less on motions and discovery; being
creative with evidence and with legal arguments; being allowed freedom in the
courtroom to be an advocate; the satisfaction one gets from disclosing contrary
authority candidly and then figuring out an argument that might prevail anyway;
getting to know the judge and feeling comfortable in his or her courtroom; and
having a good relationship with the court’s staff.
We will look forward to working with you. If you have any other
questions, feel free to contact our law clerks at (303) 844-4694 or by email at
[email protected].
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