United States District Judge
Audrey G. Fleissig
Courtroom 3N Requirements
Address
111 S. 10th Street, 1. Local and Federal Rules
Suite 3.361
St. Louis, MO 63102
Phone Many answers to frequently asked questions are contained in the
(314) 244-7420 Local Rules of the Eastern District of Missouri, the Federal Rules of
Fax
(314) 244-7429 Civil Procedure, the Federal Rules of Criminal Procedure and the
Judicial Assistant
Federal rules of Evidence. All counsel and pro se parties are expected
Sara Armbrecht to know these rules and follow them. Frequent review of the rules is
Case Management Team
recommended because they are often amended.
Kelley Shirley
(314) 244-7897 2. Informal Matters
Jacqueline Parker
(314) 244-7940
Ashley Nelson I do not have a set time for informal matters (minor issues such as
(314)244-7777
___________________ deadline changes or other minor disputes), but most days I can usually
Law Clerks
be available. If you have an informal matter, please notify opposing
Rupa Burch counsel, ascertain opposing counsel’s availability, and call my judicial
Julia Pair assistant to schedule a time for an in-court or telephone conference.
Edward Hershewe
Most minor, agreed deadline changes can be handled in writing, by
filing a motion to extend the deadline and stating that opposing
counsel consents. I will rule on such consent motions as soon as
possible. If you have an emergency motion that needs a formal
hearing on the record, you should call my chambers to schedule a
hearing.
I am always happy to handle Oaths of Admission of new attorneys.
You may call my chambers to schedule a time for an Oath of
Admission. I welcome, but do not require, an admitted attorney to
introduce the new attorney.
3. Rule 16 Conferences and Case Management Orders
Civil cases are usually set for Rule 16 conferences after all defendants
have answered or filed motions in response to the complaint. If for
some reason a party believes a conference should be sooner, that party
should file a motion. Rule 16 conferences are conducted in person,
and are usually held in chambers. When a party appears pro se, the
Rule 16 conference is held in the courtroom, on the record. Out-of-
town counsel may arrange to participate by conference call, but must
notify chambers with contact information at least one business day
prior to the scheduled conference. At the Rule 16 conference, you
should be prepared to discuss the facts of your case and all other
matters set out in the Rule 16 Order, including settlement. Do not send an unprepared substitute
attorney or an attorney who cannot make a commitment regarding the calendar of trial counsel,
as I expect all counsel to know the case and be prepared to discuss all issues, including changes
to the proposed schedule and trial setting.
4. Scheduling and Status Conferences
Counsel may request a scheduling or status conference when the need arises by calling my
chambers and setting up an appointment. If after entry of the Case Management Order, counsel
find they have a problem that is keeping the case from moving forward, or counsel are in
agreement regarding an idea to move the case forward more efficiently, counsel may contact
chambers and arrange a conference call to discuss the matter.
5. Alternative Dispute Resolution (ADR)
I refer most civil cases to mediation. Please be prepared to discuss the appropriate timing for
referral to mediation at the Rule 16 conference. When setting a date for mediation in the
proposed schedule, counsel should consider what discovery they need in order to conduct a
meaningful mediation conference. A list of the Court’s neutrals and the court’s ADR can be
found at http://www.moed.uscourts.gov/. Please note that once the case has been referred to
ADR, those deadlines are binding and may only be extended by court order.
6. Discovery Disputes
Before filing any discovery-related motion, you must confer with opposing counsel and attempt
to resolve the dispute, and in accordance with the relevant local rule, your motion must contain a
certification that you have done so. Motions that do not contain the required certification will be
denied without prejudice. The requirement that the parties confer means that the moving party
must actually speak to opposing counsel, in person or by telephone. If opposing counsel will not
return your calls when you attempt to resolve the matter, you should detail those efforts in your
certification with the motion. I expect the parties to make a good faith effort to resolve the
dispute prior to filing a discovery-related motion.
When you cannot resolve legitimate disputes, and must file motions, I will either set the motions
for hearing or rule on the papers, depending on what I think is appropriate after I have reviewed
the motions. If you desire to have a hearing on the discovery motion, you should note that
request in your motion or memorandum and, once the filings are complete, contact chambers to
request a hearing. If you have an emergency, you should contact chambers and arrange a
preliminary telephone conference.
7. Expert Witnesses
a. Be prepared at the Rule 16 conference to discuss the types of expert witnesses who are
likely to testify in the case and whether and when they will provide reports and/or
depositions. Parties are allowed to stipulate to different ways of disclosing expert
opinions, but in the absence of a stipulation, the provisions of Rule 26 will be applied.
b. Disclosure of Non-Retained Experts: Rule 26(a)(2)(C) of the Federal Rules of Civil
Procedure was amended on December 1, 2010, “to mandate summary disclosures of the
opinions to be offered by expert witnesses who are not required to provide reports under
Rule 26(a)(2)(B) and of the facts supporting those opinions.” 2010 Advisory Committee
Notes. I read the amendment generally to cover witnesses such as treating physicians,
and the employees of parties who are expected to provide expert opinions but whose
duties as employees do not regularly involve giving expert testimony. Parties must
identify such witnesses under Rule 26(a)(2)(A) and provide the disclosure of expert
opinions required under Rule 26(a)(2)(C). Such witnesses may offer both fact testimony
and expert opinions, and the disclosure is required only as to the expert opinions. The
disclosure requires less than the written report required under (a)(2)(B), but must include
a summary of the opinions to be offered, and the facts upon which those opinions are
based. Any opinions not disclosed are subject to being excluded at trial. I usually require
the disclosure to be made in conjunction with the disclosure of that party’s other expert
disclosures, and typically include the following language in my Case Management
Orders:
Disclosures of treating physicians or other witnesses expected to provide expert opinions, who
are not retained or specially employed to provide expert testimony within the meaning of Fed. R.
Civ. P. 26(a)(2)(B), shall be made in accordance with Rule 26(a)(2)(C) and on the same date as
that party is required to disclose other expert witnesses, unless the Case Management Order
provides otherwise. Failure to disclose a summary of all opinions and supporting facts to which
the witness is expected to testify shall be grounds to exclude any undisclosed opinions. Any
objections to the sufficiency of the disclosure shall be made promptly.
8. Trial Settings
Most cases are set for trial on a three-week docket. This is a firm setting, meaning I almost
always reach all the cases set within that time. For St. Louis trials, juries are picked at 9:00 a.m.
or 1:15 p.m. on Mondays and Wednesdays. If you have not heard otherwise, you should assume
your case is #1 on the trial docket.
9. Final Pretrial Conferences
If your case is still on the docket two weeks prior to the scheduled trial date, you will be
contacted by chambers to schedule a final pretrial conference. I normally hold final pretrial
conferences two or three business days prior to the scheduled trial date. Counsel should be
prepared at the final pretrial conference to argue any motions in limine, so that I can attempt to
rule on such motions in advance of the trial date. We will put any necessary argument and all
rulings on the record at the end of the pretrial conference or 30 minutes prior to the start of trial.
For trials in Cape Girardeau or Hannibal, final pretrial conferences will be held in St. Louis,
unless you are notified otherwise.
10. Available Courtroom Technology
The Court has evidence presentation equipment available, including an evidence camera (e.g.,
ELMO), VCR, DVD, monitors, and hook-ups for computer stored evidence or computer
presentation. An explanation on the use of this equipment is available on the Court’s website at
http://www.moed.uscourts.govunder Courtroom Technology. I strongly encourage counsel to use
the evidence camera or ELMO for all trials. Please call the Case Management Team in the
Clerk’s office to schedule training before trial. Training usually takes no more than 30 minutes,
and gives you the opportunity to get comfortable with the equipment before trial. No training
will be provided on the day of trial. If you intend to use your computer with the Court’s evidence
presentation system, you must confer with the Clerk’s office before trial to be sure your settings
and connections are appropriate for our system. The Court does not provide equipment to play an
audio tape; you will need to bring your own tape player.
11. Jurors and Voir Dire
a. Agreed Statement of the Case: Before the case is called, counsel must supply the Court
with a joint brief statement of the nature of the case to be read to panel members during
voir dire. Counsel is expected to agree on this statement, which should be phrased in
neutral terms.
b. Number of Jurors and Seating: The number of jurors in a civil trial will depend on the
length of the trial. For voir dire questioning, the venire panel is seated left to right in the
jury box, Nos. 1 through 5 in the front row, 6 through 10 in the middle row, and 11
through 16 in the last row. The rest of the venire panel members are seated in the left and
middle rows of the spectators’ gallery, also seated numerically, left to right.
c. Juror List: You will be provided a list of the jury panel members as they enter the
courtroom, as well as a seating chart with the jury panel members’ names filled-in, and
each panel member will wear a tag with his or her number. The jury list is not available
in advance. The list contains the name, municipality where the juror lives, current
employer, former employer, occupation, and spouse’s employer and occupation. Hobbies
and children’s ages and occupation are provided if the juror gives us that information.
You may take notes on this list if you so desire. After the jury is selected, all copies of
jury lists must be returned to the clerk.
d. Voir Dire Examination: In most cases I allow attorneys to conduct part of the voir dire. I
will begin by asking counsel to introduce themselves and their clients. I then ask
introductory questions covering such things as the nature of the case, burden of proof,
prior jury service, length of the trial, etc. If you want me to ask any specific questions
that, for some reason, you prefer not to ask, please submit them to me in writing, with
notice to opposing counsel. Otherwise, you may inquire about anything relevant to jury
selection. Questions must first be posed to the panel as a whole. You may then ask
follow-up questions of any persons who raise their hands. You may also ask follow-up
questions based on my questioning. You may not ask unnecessary questions in order to
establish rapport, ask the jurors to make promises to you, make speeches, argue your
case, tell the jury about yourself or your family, or do anything else that is not directly
designed to elicit relevant information about the potential jurors. In every case I reserve
the right to conduct the entire voir dire. In such cases, counsel will be advised to submit
proposed voir dire question to the Court no later than two business days before trial.
e. Jury Selection: After all questioning has been completed, the panel will be removed from
the courtroom and I will immediately ask for challenges for cause. No challenges for
cause or statements that either the panel or any juror is acceptable may be made in front
of the jury panel. After any panel members are stricken for cause, the parties will make
their peremptory challenges from the number of jurors equal to the number to be seated
plus the total number of peremptory strikes (i.e., for a seven-person jury, with three
peremptory strikes per side, challenges will be exercised with regard to the first thirteen
jurors remaining after strikes for cause). Plaintiff will make its peremptory challenges
and then the defense will make its challenges. In a civil case, all jurors remaining after
the strikes will be seated and will deliberate; no formal alternates will be designated.
12. Courtroom Logistics and Trial Rules
a. Time of Trial: I typically begin trial at 9:00 a.m. and conclude at 5:00 p.m. I expect the
parties to be prepared to begin promptly, so the jury is not kept waiting. Counsel will not
be permitted to raise preliminary matters at the start of the trial day, when the jury is
ready to proceed. The Court will be available to resolve preliminary matters 30 minutes
prior to the scheduled start time of the trial day, during the lunch break, or at the
conclusion of the trial day.
b. Use of Lectern: Voir dire, opening statements, examination of witnesses, and closing
arguments must be made from the lectern. You do not need to ask my permission to
approach the witness to hand the witness an exhibit. Counsel must then return to the
lectern for questioning, unless counsel must direct the witness’s attention to a part of the
exhibit. Counsel may not hover over the witness during an examination and may never
hover over the jury for any reason.
c. Objections: You should stand and state the legal basis for your objection without
argument or elaboration. I will either rule or ask you to approach for a sidebar
conference.
d. Juror Note-Taking: I generally permit jurors to take notes during the trial.
e. Use of Exhibits and Opening Statements: You may use exhibits in your opening
statement so long as you have consent from opposing counsel and advise me in advance.
f. Recross: I do not allow recross as a matter of right; recross is allowed only if something
new is brought out on redirect. If counsel wishes to recross a witness, counsel must
approach the bench with the request and tell me the areas on which recross is sought. I
will determine whether the questioning will be allowed.
g. Exhibits: You must pre-mark all exhibits, as set out in the Case Management Order. Do
not ask the courtroom clerk to mark exhibits for you. The Case Management Order
requires plaintiffs to use numbers and defendants to use letters for exhibits. If you are a
defendant and have more than seventy-eight exhibits (ZZZ), you should consider using a
method that avoids excessive multiple use of a single letter (such as AAAAA). There are
several ways to do so and still comply with the pretrial order (for example, after Z, you
might use AA, AB, AC . . . AZ, followed by BA, BB, etc.).
The parties must attempt to stipulate to the admission of as many exhibits as possible
prior to trial. I ask that you bring a list of all exhibits which may be received without
objection at the beginning of trial. Unless otherwise stipulated, examining counsel must
show each exhibit to opposing counsel prior to showing it to a witness. Demonstrative
and summary exhibits must be shown to opposing counsel in advance of trial, even if not
offered into evidence.
h. Depositions and Video Depositions: Counsel often “overdesignate” portions of the
deposition they intend to use at trial in their pretrial submissions. Prior to the start of trial,
you must notify opposing counsel of what portions you actually intend to offer, so that
opposing counsel can determine whether they still wish to object or to counter-designate.
Counsel must attempt to resolve any objections and bring to my attention any objections
that cannot be resolved well in advance of the proposed use of the deposition, so that I
can rule on any objections without wasting jury time.
If you wish to play a video deposition, please let me know in advance, so that I can rule
on objections in time for you to make the necessary edits or otherwise address the
logistics.
i. Jury Instructions: I use the Eighth Circuit Model Jury Instructions for boilerplate and
substantive matters covered by those instructions. The Missouri Approved Instructions
(or another state’s approved instructions, when appropriate) are used for issues governed
by state law.
I usually send the final instructions to the jury in writing, and also display them to the
jury on the visual presenter while they are being read. The parties must submit two
complete sets of instructions. One set should be “clean,” i.e., with no authority, case
caption or indication of the offering party, and shall include only the words “Instruction
No. ___” at the top. The other set of instructions should indicate the source of or
authority for the instruction, indicate the offering party, and be numbered at the top. The
parties must also give the Court a clean copy of their instructions on disk at the final
pretrial conference, in order to assist the Court in making necessary changes.
Counsel are required to meet and confer regarding jury instructions and, whenever
possible, to submit one package of jury instructions to the Court on behalf of the parties.
In the absence of agreement as to the instructions, counsel should expect to have the final
jury instruction conference in the evening, at the conclusion of the trial day.
13. Courtroom Decorum
a. Please stand when the jury enters the courtroom and stand at all times when speaking.
b. No eating, cell phone usage, drinking other than water, gum chewing, or audible beepers
or watches are allowed. Please tell your clients and witnesses these rules.
c. All witnesses and opposing counsel must be addressed by their last names, with
appropriate titles. Do not call any witnesses by their first names, even your clients, and
please advise witnesses not to address counsel by their first names. This rule is intended
to govern how we address one another in the courtroom – it is not a rule requiring
witnesses to refer to one another in any certain way during their testimony.
d. Persons seated at counsel table shall not make any verbal comments, facial expressions,
laughter, or other expressions, verbal or non-verbal, to the jury which would be
interpreted as conveying a comment one way or the other with respect to any testimony,
argument, or event that may occur during trial.
e. Young children are not allowed as spectators unless they are accompanied by an adult
seated with them in the spectators’ area. An individual seated at counsel table or a
witness, while testifying, cannot qualify as the attending adult.
f. All statements by counsel should be directed to the Court and not to each other. Counsel
is expected to treat each other, all Court personnel, and all witnesses, including adverse
witnesses, professionally and courteously.
