UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JUDGE LAURA TAYLOR SWAIN
The following rules apply to all civil and criminal matters pending before Judge Swain on and
after May 27, 2014.
General Rules for Trial Counsel
Procedures in Cases That are Set for Trial
Counsel with either jury or bench cases set for trial are requested to comply with the
following procedures:
(1) All trial settings are firm, depending upon the availability of the Court. It is
not safe to assume that the cases set ahead of yours will proceed to trial.
They may settle or have to be continued on the morning of trial because of
some unexpected development. The Courtroom Deputy will be happy to
answer your questions as to how the call appears, but reliance upon such
information will not justify a continuance.
(2) If the case is settled, or if in a criminal case the defendant decides to change
his or her plea, please notify the Courtroom Deputy without delay so that
another case can be scheduled in your place. Please do not wait until the day
of trial to inform the Court the case has previously been settled or that the
defendant has previously decided to plead guilty.
(3) All exhibits must be marked prior to the session of the trial at which they are
to be introduced. No trial time will be used for this purpose.
Trial Schedule
Trials will generally be conducted Monday through Thursday from 9:00 a.m. to 4:15
p.m. The Court will be available to meet with counsel from 9:00 a.m. to 9:15 a.m. Testimony will
begin at 9:15 a.m. A luncheon recess will run from 1:00 p.m. to 2:00 p.m. Jurors may deliberate
on Fridays.
Objections During Jury Trials
(1) Sidebar conferences will be kept to a minimum.
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(2) Any anticipated evidentiary problems should be brought to the attention of
opposing counsel and the Court in advance–either before the morning
session, at the break, or at the end of the day–in order to avoid the need for
sidebar conferences.
(3) If counsel finds it necessary to interpose an objection while the jury is
present, counsel should stand, state the word “Objection,” and then
communicate the substance of the objection to the questioner out of the
hearing of the jury in an effort to resolve the objection (by, for example,
agreeing that the question will be rephrased or further foundation laid)
without a ruling from the Court. If the objection cannot be resolved in this
fashion and the objector does not believe the matter can be held for the next
recess, counsel may request a sidebar conference.
(4) Unless specifically directed by the Court to do so, do not argue an objection
in the presence of the jury. Do not make motions (e.g., a motion for a
mistrial) in the presence of the jury. Such matters may be raised at the next
recess.
Exhibits
Counsel are responsible for marking their own exhibits. Counsel must give a copy
of each exhibit to the Court before using it at trial. In civil trials, counsel must exchange copies of
their trial exhibits and provide a set for use by the Court before trial begins (see applicable
scheduling orders and/or Judge Swain’s Individual Practices Rules). On the day of trial, counsel
must bring additional pre-marked copies for use by witnesses, the Courtroom Deputy, the Court
Reporter, opposing parties and (if applicable) the jury.
The Court’s copies of the pre-marked exhibits should be assembled sequentially in
a notebook and tabbed or, if a party prefers, each exhibit may be placed in a separate manila folder
with number or letter visible on the lip, and the folder placed in a suitable container or box for ready
reference. Each counsel must provide to the Court three copies of his or her final exhibit list.
Counsel must also provide copies to the Court of any depositions which are intended to be offered,
in whole or part, into evidence. Depositions are not generally to be offered in their entirety. Except
in the rare instance where all the testimony is relevant, copy the relevant pages only, staple the
extracts from each deposition, and offer each as an exhibit.
Except where otherwise directed by the Court, each side of the case keeps track of
its own exhibits. Counsel are responsible for ensuring that exhibits sent in to the jury are genuine
and actually have been received in evidence.
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Conduct of Counsel During Trial
Your compliance with the following requests will be greatly appreciated:
(1) Be on time for each court session. Trial engagements take precedence over
any other business. If you have matters in other courtrooms, arrange in
advance to have them continued or have a colleague handle them for you.
(2) Court time may not be used for marking exhibits. This must be done in
advance of the court session.
(3) Please stand whenever you address the Court. This includes the making of
objections. (Counsel with physical disabilities will be excused from this
requirement as necessary.)
(4) Please stand a respectful distance from the jury at all times, addressing the
jury and witnesses from the podium only, unless the Court gives you
permission to approach the witness or to publish an exhibit to the jury.
(5) In your opening statement to the jury, do not argue the case and do not
discuss the law. Please confine yourself to a concise summary of the
important facts.
(6) Stand at the podium when you question witnesses. (Counsel with physical
disabilities will be excused from this requirement as necessary.) Do not pace
about the courtroom when making arguments or questioning witnesses. This
distracts the jury and wastes time.
(7) If you intend to question a witness about a group of documents, avoid delay
by having all the documents with you when you start the examination.
(8) Please commence your cross-examination without preliminaries.
(9) Do not face or otherwise appear to address yourself to jurors when
questioning a witness.
(10) The jury should hear the instructions on the law of the case from the Court,
an impartial source. In your final argument, you may tell the jury what you
believe the substance of the Court’s instruction on a particular subject will
be, but do not read or quote any instruction.
(11) Please address all remarks to the Court, not to opposing counsel.
(12) Avoid disparaging or disrespectful personal remarks or acrimony toward
opposing counsel and remain wholly detached from all ill feeling between
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the litigants or witnesses.
(13) Please refer to all persons, including witnesses, other counsel, and parties by
their surnames and not by their first or given names.
(14) Only one attorney for each party shall examine, or cross-examine, each
witness. The attorney stating objections, if any, during direct examination,
will be the attorney recognized for cross-examination.
(15) In examining a witness, counsel should not repeat or echo the answer given
by the witness.
(16) Counsel must admonish all persons at counsel table that gestures, facial
expressions, audible comments, or the like, as manifestations of approval or
disapproval during the testimony of witnesses, or at any other time, are
absolutely prohibited.
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