UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Plaintiff,
v. CIVIL ACTION
NO.
Defendant,
ORDER REGULATING NON-JURY CIVIL TRIAL
WOODLOCK, J.
I. Trial Date
This case has been set for non-jury trial on
in Courtroom 1 on the 3rd floor of the John
Joseph Moakley United States Courthouse in Boston, before the
Honorable Douglas P. Woodlock. Trial will be conducted on a 9:00
a.m. to 1:00 p.m. schedule.
II. Clarification of Issues and Pre-trial Filings
1. Aims. With the aims of promoting the court's and
counsel's understanding of legal and factual issues and using
efficiently the public and private resources committed to
resolving this dispute, the court (a) will require that proposed
findings and conclusions and affidavits to be used in lieu of
oral direct examination be filed before trial commences, and (b)
will seek to decide the case immediately after oral argument at
the conclusion of trial.
2. Initial Proposals. On or before l2 noon, 6 WEEKS
BEFORE TRIAL, counsel for the party having the burden of proof on
any claim or defense will serve on other counsel (but not file
with the clerk) three copies of Proposed Findings of Fact and
Conclusions of Law. The statement will list each finding and
each conclusion in a separate numbered paragraph. Counsel are
encouraged to be concise and to propose only the findings and
conclusions that are essential to a claim or defense under the
legal theory or theories advanced.
3. Marked Response and Additional Proposals.
a. On or before l2 noon, 4 WEEKS BEFORE TRIAL, counsel
receiving Proposed Findings and Conclusions pursuant to paragraph
2 will file with the clerk and serve on other counsel a copy of
the Proposed Findings and Conclusions, marked as follows:
(1) Only those parts of the proposed
findings the accuracy of which is
genuinely in dispute and only those
parts of the conclusions of law
that are contested will be
underlined.
(2) Portions of the proposed findings the
admissibility of which is contested will be
bracketed.
(3) On the margin of the first page
will be typed or written the name
of the party on whose behalf the
Marked Response is filed, followed
by the signature of counsel in
accordance with Fed. R. Civ. P. 11.
b. Counsel receiving Proposed Findings and Conclusions
pursuant to paragraph II.2., although not required to do so, may
also at the time specified in paragraph II.3.a. above, serve on
other counsel three copies of Proposed Additional or Substitute
Findings and Conclusions.
c. Counsel receiving Proposed Additional or Substitute
2
Findings and Conclusions shall, on or before l2 noon, 2 WEEKS
BEFORE TRIAL, file with the clerk and serve on other counsel a
Marked response to the Proposed Additional or Substitute Findings
and Conclusions.
4. Lists of Witnesses, Depositions and Exhibits. Not
later than l2 noon, 4 WEEKS BEFORE TRIAL, each party shall file
the following:
a. A list of all prospective witnesses, together
with the affidavits of each witness whose
direct testimony is to be received by
affidavit.
b. A list of depositions to be used at
trial as part of the party's case
in chief, identifying pages or
portions to be used. Depositions
(or parts thereof) to be used only
for impeachment or in cross-
examination need not be listed.
c. A list of exhibits to be introduced
without objection, identified by a
single sequence of numbers,
regardless of which party is the
proponent of an exhibit. Unless
otherwise ordered, plaintiff's
exhibits shall commence with
exhibit 1 and defendant's exhibits
with Exhibit 50l. (Consultation
among counsel shall have occurred
well in advance of the filing date
to determine whether objections
will be made to proffered
exhibits.)
d. A list of marked items to be
offered at trial, as to which an
opposing party has reserved the
right to object, identified by a
sequence of capital letters and the
party designation (e.g., PL's A, B,
C ...; D's A, B, C ...). A party
reserving the right to object must
file in writing, on the date stated
3
above in this paragraph, a
statement of the grounds of
objection.
5. Notice of Intent to Cross-Examine. Not later than l2
noon, 2 WEEKS BEFORE TRIAL, counsel who wishes to cross-examine
any witness whose direct testimony is to be received by affidavit
shall give written notice to opposing counsel identifying the
witness(es) to be cross-examined.
6. Trial Memorandum. Not later than 12 noon, 2 WEEKS
BEFORE TRIAL, counsel shall file with the Court and serve upon
opposing counsel a final trial memorandum setting forth in no
less than 10 and no more than 20 pages a narrative statement
referenced to the previously filed proposed findings and
conclusions.
III. Procedure at Trial
1. Use of Proposed Findings. All parts of proposed
findings neither underlined nor bracketed on the copy filed with
the clerk before the trial begins will be received in evidence at
the beginning of trial as uncontested. No other proof on
uncontested matters will be required or accepted. Objections to
the admissibility of bracketed, non-underlined parts of the
proposed findings will be heard when such parts are offered,
unless otherwise ordered. When the relevance or materiality of
evidence offered at the trial is questioned, counsel offering the
evidence shall be prepared to identify for the court the
contested fact issue to which the offered evidence is relevant
4
and material.
2. Testimony. Except as provided in paragraph III.2.d.
below, all direct examination of witnesses at trial shall be
presented by affidavit.
a. An affidavit of a witness, constituting the direct
examination, must be in admissible form. That is, each statement
in the affidavit must be in form such that if the witness were
making the statement orally at trial, in response to a question,
it would be admissible under the Federal Rules of Evidence.
Statements that would be objectionable as conclusions, or
objectionable because of lack of essential foundation evidence,
should be avoided. Cf. Fed. R. Civ. P. 56(e). To facilitate use
at trial, the affidavit shall be prepared in numbered paragraphs,
each of reasonable length.
b. When an affidavit is offered in evidence, opposing
counsel may present objections. If the court sustains objection
to any part of the affidavit, the proponent of the evidence may
call the witness to the stand to attempt to cure or avoid grounds
of objection and elicit evidence to replace that stricken on
objection. This may be done as a completion of the direct
examination before cross-examination commences. The court may
place limitations on the opportunity for such curative additions
to the direct testimony if counsel has inexcusably presented an
affidavit not in compliance with paragraph III.2.a. above.
c. If notice has been given by opposing counsel in
accordance with paragraph II.5. above, the witness must be
5
present for cross-examination and redirect examination.
d. In the following circumstances a party may use a
deposition or call a witness for oral examination:
(1) If notice is given in accordance with
paragraph II.4.b. above, the deposition of a
witness may be used whenever Fed. R. Civ. P.
32 authorizes its use.
(2) An opposing party and anyone having authority
to represent that party as officer, director,
or managing agent--cf. Fed. R. Civ. P.
32(a)(2)--may be called for oral examination
at trial if notice has been given in
accordance with paragraph II.4.a. above.
(3) For good cause shown and upon motion filed on
or before 12 noon, 2 WEEKS BEFORE TRIAL, (or
filed thereafter but with good cause shown
for late filing), all or part of the direct
examination of any witness may be by oral
examination at trial. The court may, even if
no motion is filed, call a witness for oral
examination to aid the court's fact finding;
if this is done, the parties will be heard as
to whether one or more other witnesses should
also be called to assure fair opportunity to
develop claims and defenses.
3. Use of Depositions at Trial. Except for good cause
shown, no deposition testimony shall be introduced in a case in
chief other than those pages or portions as to which notice was
given pursuant to II.4.b. above. This limitation shall not apply
to the use of deposition testimony for impeachment or in cross-
examination.
4. Stipulations. Stipulations may be read at any time
except during the testimony of a witness.
5. Documents. At least one-half hour before commencement
of trial each day, counsel shall furnish the court reporter with
6
a copy of any document from which counsel intends to read that
day, except depositions to be read by two people in question and
answer form. Documents to be used during cross-examination are
excepted.
By the Court,
Deputy Clerk
Dated:
7
