UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
[PLAINTIFF], ) Case No. _____________
)
Plaintiff, ) Judge J. Philip Calabrese
)
v. ) Magistrate Judge _________
)
[DEFENDANT], )
)
Defendant. )
)
CIVIL PRETRIAL AND TRIAL ORDER
(January 2, 2024)
This Order governs the period from the resolution of any dispositive motions
through trial, whether that trial is conducted to the bench or a jury, and other
evidentiary proceedings, such as hearings on a motion for preliminary injunction. On
[DATE], the Court conducted a pretrial conference attended by [NAME], counsel for
Plaintiff, and [NAME], counsel for Defendant. Based on the discussions at that
conference, the Court sets the following schedule and enters this order. Additional
pretrial hearings may be scheduled as needed.
SUMMARY OF DEADLINES
This order sets the following deadlines:
Statement of Claims and Defenses: [DATE].
Pretrial Motion Deadline: [DATE].
Response to Pretrial Motions: [DATE].
Final Pretrial Conference: [DATE].
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Deadline for Trial Documents: [DATE].
Witness and Document Lists, Trial Briefs, Stipulations: [DATE]
Logistics Conference: [DATE].
Exhibits: [DATE] by 12:00 pm
Trial: [DATE].
APPEARANCES, DEADLINES, AND CONTINUANCES
Lead counsel must be present at all proceedings unless excused by the Court
on written motion. Generally, clients or representatives of parties need not attend
the conference, unless the Court orders otherwise. Clients and representatives are
welcome to attend and participate. Unless otherwise ordered, the Final Pretrial
Conference and Logistics Conference will be conducted in person.
Consistent with Rule 6, the Court will not extend any deadline set forth in this
order or in the Federal Rules of Civil Procedure absent a showing of good cause made
on motion sufficiently in advance of the deadline or a showing of excusable neglect on
motion made after the deadline.
The Court will not continue a trial or hearing without a written motion stating
the reason for the request. A motion for continuance due to a conflict of trial dates
will not be considered unless the conflicting assignment is adequately described in
the motion, including the name of the case, its number, and the trial judge. The
motion shall be filed and served not less than fifteen (15) days after counsel becomes
aware of the conflict, and not less than thirty (30) days before trial in this case.
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The Court will not entertain a motion to continue a hearing or to change its
format on the day of the hearing absent extraordinary circumstances. Even then, the
Court may require the party belatedly requesting a continuance to bear any
unavoidable costs.
TRIAL DATE
This case is scheduled for trial on [DATE] at 8:30 am in Courtroom 16-B, Carl
B. Stokes United States Courthouse, 801 West Superior Avenue, Cleveland, Ohio.
Counsel must appear at 8:15 am on the morning of trial. The Court will not continue
the trial date in this case absent a showing of good cause made in compliance with
the procedures set forth in this Order. In addition, any motion for a change of the
trial date shall be in writing, shall be made at least two (2) days before the final
pretrial conference, and identify all considerations and legal authorities which the
movant contends support the motion.
FINAL PRETRIAL CONFERENCE
The final pretrial conference is scheduled for [DATE] at 9:30 am in Courtroom
16-B, Carl B. Stokes United States Courthouse, 801 West Superior Avenue,
Cleveland, Ohio. All trial counsel must be present at the final pretrial conference.
Unless otherwise ordered, the following must attend a final pretrial conference
in person: (1) lead trial counsel, (2) parties, and (3) a representative with full and
final decisional authority, including settlement authority. If any such person is
unable to attend in-person, counsel must file a motion, showing good cause, as far in
advance of the final pretrial conference as possible and in no event less than 48 hours
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before the conference. Counsel may not file such a motion without first conferring
with all other parties. Before the final pretrial conference, the parties are expected
to exchange at least two rounds of good-faith settlement demands and offers.
Parties means either the named individuals or, in the case of a corporation or
entity, the person most familiar with the actual facts of the case. Party does not mean
in-house counsel.
Full and final authority means the actual authority to enter into binding
commitments on all factual and legal issues without further consultation. With
respect to settlement authority, the representative must have full and final authority
up to the last demand or amount remaining in controversy.
STATEMENT OF CLAIMS AND DEFENSES
No later than [DATE], Plaintiff shall file a notice of the claims on which it
intends to proceed and present evidence at trial. By the same date, Defendant shall
do the same with respect to the defenses on which it bears the burden of proof or
production.
PRETRIAL MOTIONS
Pretrial motions shall be filed on or before [DATE]. All pretrial motions shall
state the basis for the motion, identify the authorities on which the movant relies,
and otherwise comply with the Local Rules and the Court’s Civil Standing Order.
Responses to pretrial motions shall be filed by [DATE]. The Court does not permit
replies.
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Any pretrial motion, including a motion in limine, must contain a certification
that, after the parties conferred in good faith, they have a dispute over the subject of
the motion that requires a pretrial ruling from the Court. Unless otherwise ordered,
each may file only one pretrial motion, which shall address all matters on which the
party seeks a pretrial ruling from the Court, subject to the certification requirement
in this paragraph.
CIVIL STANDING ORDER
The Court incorporates its Civil Standing Order here and refers the parties to
it, particularly with respect to the participation of younger lawyers. Notwithstanding
the close of discovery, the Court will employ the procedures in its Civil Standing
Order for resolution of discovery disputes should any dispute regarding this Order or
preparations for trial arise. The standing order is available on Judge Calabrese’s
page on the Northern District of Ohio’s website.
DEPOSITION DESIGNATIONS
Any party who intends to present the testimony of witness by deposition must
serve designations no later than fourteen (14) days before the final pretrial
conference. Failure to designate deposition testimony by this deadline waives the
right to present testimony by deposition.
Objections to testimony designated must be made no later than seven (7) days
before the final pretrial conference. Failure to object by this deadline waives any
objection to the designated testimony.
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Before any testimony is played for the jury, the party presenting the testimony
shall edit the video to remove objections.
At the final pretrial conference, the Court and the parties shall discuss
deposition designations, objections, and the logistics for submitting the testimony to
the Court for review before the testimony will be played or read to the jury.
TRIAL DOCUMENTS
Unless set forth below, the following trial documents are to be submitted to the
Court electronically not later than 4:00 pm ten (10) days before the trial date:
1. Preliminary Statement
Counsel for the parties shall confer in person and agree on a concise written
statement describing the case in an impartial, easily understood manner and submit
it to the Court to be read to the jury panel before voir dire. This statement will be
used to set the context of the trial for the jury.
2. Witness Lists
Counsel shall exchange and provide witness lists to the Court. The witness
lists shall provide a brief description and the purpose of each witness to be offered.
Each attorney shall have a continuing obligation to supplement the party’s witness
list immediately upon learning of any additional witness.
2.A. Guidelines for Witness Testimony
Before any witness, including an expert, testifies at trial, counsel for the party
calling the witness must supply the Court with a signed copy of the Court’s Guidelines
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for Witness Testimony (attached) or otherwise certify that counsel has reviewed the
Guidelines with the witness.
2.B. Notice
During trial, parties shall provide the Court and other parties at least 24 hours’
notice before calling a witness.
2.C. Witnesses Appearing by Remote Technology.
Witness testimony may be offered during trial via video conference or other
remote technology. Docketed notice must be given of intent to call a witness via video
conference at least one week prior to the start of trial. It is counsel’s responsibility to
find a location for the witness to receive a video conference call from the Court during
trial. Counsel is required to work with the Court’s IT Department and courtroom
deputy in advance of trial to test the technology and ensure the video conference
communication works in the courtroom. It is also counsel’s responsibility to ensure
that the witness, the Court, and opposing counsel have all necessary exhibits.
Counsel must be prepared to assure the Court that the witness is who the witness
claims to be.
3. Stipulations
Counsel for the parties shall confer in person, by telephone, or using remote
technology and agree on stipulations and reduce them to writing. Stipulations of fact
are strongly encouraged to eliminate the need for testimony of witnesses to facts
which are not in dispute.
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The Court expects that the parties will stipulate to authenticity, absent a
genuine dispute on the issue. Stipulations shall be signed by counsel and submitted
to the Court.
4. Trial Briefs
Counsel for the parties shall submit to the Court, ex parte if necessary, trial
briefs providing appropriate memoranda, supported by legal authority, regarding
evidentiary questions and any other legal issues which may reasonably be anticipated
to arise at trial. A complete trial brief includes: (a) a statement of the facts; (b) a
complete discussion of the controlling law together with specific citations of statutes
and case law; and (c) a discussion of any evidentiary issues likely to arise at trial,
with discussion of the applicable rules and case law applicable to the evidentiary
issues.
5. Documentary Evidence
Counsel shall submit a list of joint exhibits and documents for admission into
evidence. If a party seeks the admission of a document to which another party objects,
the parties shall make a single joint submission identifying such documents or
exhibits and briefly stating the basis for the objection.
6. Voir Dire, Jury Instructions, Jury Interrogatories, and Verdict Forms
Counsel for the parties shall jointly submit written voir dire questions, jury
instructions, jury interrogatories, and verdict forms for the Court’s consideration.
Counsel should confer in person and, to the extent possible, agree on a complete set
of these materials. Counsel may separately submit disputed proposed questions for
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voir dire, jury instructions, jury interrogatories, and verdict forms to the Court and
opposing counsel, supported by legal authority. The Court will reject any proposed
questions, instructions, interrogatories, and verdict forms that are not supported
with citation to sound legal authority.
Ultimately, a single joint submission of jury instructions, jury interrogatories
and verdict forms shall be filed, providing: (a) agreed upon instructions;
(b) instructions proposed by Plaintiff, but opposed by Defendant; and (c) instructions
proposed by Defendant, but opposed by Plaintiff. All proposed instructions shall be
supported by citations to legal authority. At or before the charging conference, the
Court will provide counsel with the proposed jury instructions.
Supplemental requests for instructions during the course of the trial or at the
conclusion of the evidence will be granted solely as to those matters that cannot be
reasonably anticipated when presenting the initial set of instructions. Copies also
should be served upon opposing counsel.
LOGISTICS CONFERENCE
At 9:30 am on [DATE], the Court will conduct a pretrial conference with the
parties to discuss the logistics for trial and to resolve any remaining objections. Any
objection to the testimony of a witness must be made no later than 24 hours before
the Logistics Conference by filing an objection and the grounds for the objection.
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OTHER TRIAL MATTERS
Objections to Exhibits.
Any objections to a proposed exhibit shall be filed and served no later than
12:00 pm three (3) business days before the Logistics Conference. Such objections
shall include a brief statement why the proposed exhibit should not be permitted or
admitted, as well as specific citations to pertinent case law or other legal authority.
Objections
The Court expects counsel to confer and make good-faith efforts to resolve any
objections to exhibits, witnesses, documents, or any other matter before presenting
the issue to the Court for resolution. Failure to do so may result in the Court
overruling the objection.
In cases involving multiple parties on the same side of the “v,” the Court will
treat an objection by one party as an objection by all.
Side Bars
The Court will not hold conferences at side bar or in chambers during trial to
consider legal issues including evidentiary rulings that could have been raised before
trial without a showing that counsel could not, by the exercise of due diligence, have
anticipated them in advance of trial.
TRIAL EXHIBITS
All exhibits must be marked before trial in accordance with Local Rule 39.1,
except that all parties shall label their exhibits with numbers. The Court does not
require binders containing hard copies of exhibits, absent a specific request. The
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Court will not allow exhibits to be shown to the jury during trial except as set forth
in this order. Exhibits not identified and exchanged before trial shall not be
introduced at trial, absent a showing of good cause. This rule applies to lay witnesses
as well as to expert witnesses.
The Court is using technological means to facilitate the viewing of exhibits by
jurors. Each party must submit all exhibits on a single storage device such as a USB
drive. A separate USB drive should be provided for Plaintiff’s Exhibits, Defendant’s
Exhibits, and any Joint Exhibits. Each party must send the exhibits to chambers in
a manner that guarantees receipt of the exhibits no later than noon on Friday before
trial commences.
The electronic copies of exhibits must be named using a naming convention
similar to: <exhibit number>-<exhibit part>_<exhibit description>.<file extension>.
The exhibit number must be a number. Exhibits with subparts can be so designated
using a letter for the exhibit part. The use of the underscore character is required
when an optional description of the exhibit is included and cannot be used elsewhere
in the exhibit name.
Examples of valid exhibit file names include:
1-a_photograph.jpg
12_2009 Tax Statement.pdf
35d.pdf
12(a)_camera footage.wmv
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Any questions regarding the naming conventions for the electronically stored exhibits
should be directed to David Zendlo at (216) 357-7053.
To maintain consistency between the electronic and the paper exhibits, both
parties shall label their exhibits with numbers. Counsel shall mark all exhibits
before trial with official or similar stickers. Exhibits shall be labeled with the party
followed by the exhibit number (e.g., “Pl 1” or “Def 2”). The case number shall also
appear on the stickers. Whenever a multi-page exhibit is used, each page of the
exhibit must be separately numbered. For example, if Plaintiff’s Exhibit 1 is a three-
page document, the first page should be marked as Pl 1-1, the second page marked
Pl 1-2, etc. If there are multiple defendants, the party’s last name should precede the
numbers or letters (e.g., “Def. Jones-1001” or “Company A-1001”). Exhibit stickers
are available from the Clerk on request.
DEMONSTRATIVE EVIDENCE AND EXHIBITS
If demonstrative evidence and exhibits such as models, sketches, or
PowerPoint slides are to be used at trial, counsel shall exchange them no later than
two (2) business days before the trial date. A party must provide at least 24 hours’
notice of any modification to such materials.
Counsel shall also exchange any PowerPoint slides or the like intended for use
in opening statements no later than 48 hours before the Logistics Conference. If
counsel are unable to resolve any dispute about the use of PowerPoint slides or
demonstrative exhibits, they must advise the Court at the Logistics Conference.
Failure to do so will result in the Court allowing the parties to use any properly
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exchanged demonstratives in opening statement without objection. Similarly, with
respect to closing arguments, counsel must exchange any PowerPoint slides or the
like as soon as practicable and before beginning closing arguments. Failure to advise
the Court of any dispute about the use of PowerPoint slides or demonstrative exhibits
before a closing argument begins will result in the Court allowing their use without
objection.
If any party intends to use paper documents in the courtroom, instead of
electronic versions, they should have paper copies for each of: the Judge, the court
reporter, the Courtroom Deputy, and the law clerk. When providing a copy to the
Judge, counsel shall provide the document to the Courtroom Deputy.
SETTLEMENT BEFORE TRIAL
If the parties reach a settlement before trial, they must promptly advise the
Court. If a jury has been summoned at the time of settlement, the Court will assess
the costs for summoning jurors for one (1) day of service equally among the parties
unless the parties agree to a different arrangement or there is good cause to waive or
modify this provision.
VOIR DIRE
The entirety of the panel, including those seated in the gallery, will be
conducted at one time. The Court will conduct a preliminary voir dire addressed to
general matters and the specific issues in the case. Counsel may briefly question the
panel to supplement the Court’s examination. However, counsel may not repeat the
Court’s questions.
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If counsel prefer the Court ask specific questions for any reason, they may
supply them to the Court no later than the logistics conference discussed above.
Challenges.
Challenges for cause and peremptory challenges will be heard outside the
jury’s presence. First, the Court will consider challenges for cause. Then, the Court
will consider peremptory challenges. The entire panel (i.e., jurors seated in the jury
box and in the gallery in the back of the courtroom) shall be challenged for cause and
peremptorily challenged in a continuous sequence without reseating prospective
jurors. It is counsel’s responsibility to determine the current makeup of the jury by
reference to the seating plan.
Each party will exercise a peremptory challenge in alternative sequence
beginning with Plaintiff. If either party passes or declines to exercise a peremptory
challenge, that challenge is considered used. Following selection of the twelve
members of the jury, the parties will then proceed to exercise any peremptory
challenges on the alternates in the same manner.
TRIAL CONDUCT AND PROCEDURE
Trial will begin promptly each day by 8:30 am and adjourn around 5:00 pm,
with one break in the morning, a lunch break, and one break in the afternoon. At the
final pretrial conference, the Court will discuss any variance to this schedule based
on the anticipated length of the trial.
Unless otherwise ordered, counsel should arrive 30 minutes prior to the start
of a day in trial. When counsel and the jurors are assembled, trial may start early.
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Additionally, at the end of each trial day, the Court expects counsel to confer
about the witnesses and exhibits expected to be used in trial the next day. No later
than 10:00 pm, counsel must email chambers advising of any objections or other
issues that require the Court’s attention before resuming proceedings with the jury.
When appearing in this Court, all counsel (including, where the context
applies, all persons at counsel table) shall abide by the following:
1. Stand as court is opened, recessed, or adjourned.
2. Stand when the jury enters or retires from the courtroom.
3. Remain seated at counsel table when addressing the Court and speak
directly into the microphones.
4. Use the lectern facing the jury for voir dire, opening statement, and
closing argument.
5. When making an objection, state the legal basis for the objection only in
a word or two. For example, a proper objection is “Objection, 403” or “Objection,
leading.” If the Court requests a response, be brief without making a speech.
Objections may not be used to make speeches, repeat testimony, or attempt to guide
a witness or to influence the jury. If it is critical to the case that counsel be heard in
more detail immediately, counsel may request a sidebar to explain the basis for an
objection. Otherwise, counsel may make a record regarding the objection at the next
break.
6. Request permission before approaching a witness. When permission is
granted for the purpose of working with an exhibit, counsel should return to the
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lectern when finished with the exhibit. Counsel should use the lectern to examine a
witness but may move within the well of the courtroom within reason.
7. Counsel may not interrupt a witness. Counsel will wait until the
witness has finished answering before asking the next question.
8. Address all remarks to the Court, not to opposing counsel.
9. Avoid disparaging personal remarks or acrimony toward opposing
counsel and remain wholly detached from any ill feeling between the litigants or
witnesses.
10. Refer to all persons, including witnesses, other counsel, the parties and
the Court’s clerks by their surnames and not by their first or given names. Counsel
should not exhibit familiarity with witnesses, jurors, or opposing counsel.
11. Only one attorney for each party may examine or cross-examine each
witness or argue an issue or point. The attorney stating objections, if any, during
direct examination, shall be the attorney recognized for cross-examination. At the
final pretrial conference, the parties may agree to alter this rule based on the
provisions below regarding Less-Experienced Lawyers.
12. Any witness testifying at the time of recess or adjournment must be back
on the witness stand when the Court reconvenes. If a new witness is to be called, he
or she must be standing in front of the witness box ready to be sworn.
13. In examining a witness, counsel shall not unnecessarily repeat or echo
the answer given by the witness.
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14. During examination of a witness, counsel must first ask the Court for
permission to confer with co-counsel.
15. 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.
16. Do not ask the court reporter to mark testimony. All requests for
re-reading of questions or answers shall be addressed to the Court.
17. If the Court takes a break while a witness is on the stand, counsel may
not have any substantive conversations with the witness about his or her testimony,
the case, any evidence, or any other matter relating to the case being tried.
JURY DELIBERATIONS
Counsel are required to remain within ten (10) minutes of the courtroom
during jury deliberations. Before leaving the immediate vicinity, counsel are
required to report to the courtroom deputy.
ELECTRONIC COURTROOM
All parties wishing to familiarize themselves with the presentation equipment
and other technology available for use in the courtroom before trial should contact
the courtroom deputy at (216) 357-7265 no later than one week before trial to
schedule a time to visit the courtroom. If technological assistance with any of the
equipment will be required, parties should also contact the Court’s technology
advisors to ensure that someone will be available during the scheduled time to assist
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with the set-up and use of any equipment or any other technological issues that may
arise.
CONDUCT OF COUNSEL
In addition to the provisions of this order, pursuant to the Statement on
Professionalism issued by the Supreme Court of Ohio on February 3, 1997, counsel
are directed to be courteous and civil in all oral and written communications with
each other and the Court. Pleadings or any other communications which do not
conform to this standard will be rejected.
LESS-EXPERIENCED LAWYERS
The Court strongly encourages parties to allow less experienced lawyers the
opportunity to participate actively in cases by presenting arguments at motion
hearings or examining witnesses at trial or other evidentiary hearings. Therefore,
the Court may alter its practices in this order to afford opportunities to less-
experienced lawyers. For example, the Court may allow a bifurcated oral argument
in which a senior attorney presents one portion of the argument and a less-
experienced lawyer who has worked on the case presents the other portion. Similarly,
at trial, the Court may relax the usual one-lawyer-per-witness rule to allow less
experienced lawyers an opportunity to examine witnesses. Counsel seeking
permission to bifurcate arguments or witness examinations should raise the issue at
the final pretrial conference or by contacting the courtroom deputy.
SO ORDERED.
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Dated: January 2, 2024
J. Philip Calabrese
United States District Judge
Northern District of Ohio
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GUIDELINES FOR WITNESS TESTIMONY
Judge Calabrese requires every witness who testifies to follow these rules:
1. Because the court reporter is writing down every word that anyone
says, it is important to keep your voice up and answer every question orally—not
with nods of the head or “uh-huh” or “yeah” or “mm-hmm.”
2. Wait until counsel finishes asking you a question before answering.
Do not speak over counsel or the Judge.
3. Speak directly into the microphone.
4. Answer the question asked and only the question asked. Do not make
a speech. Your lawyer will have the chance to ask you questions.
5. Answer questions with courtesy.
6. Evasive answers, answering a question with a question, or disrespect
to counsel will not be tolerated.
7. If a lawyer objects, do NOT speak until the Court tells you whether to
answer the question or not.
I declare under penalty of perjury under the laws of the United States of
America that I have read these Guidelines and will abide by them. I understand that
failure to do so may result in sanctions, including being held in contempt.
Dated:
_________________________________
Name of Witness (Printed)
_________________________________
Signature
