PEARSON, J.
(Rev. 7/22/2013)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
, )
) CASE NO.
Plaintiff, )
)
v. ) JUDGE BENITA Y. PEARSON
)
, )
)
Defendants. ) CIVIL TRIAL ORDER
A final pre-trial conference is set for at a.m./p.m. in
Chambers 313, Federal Building - United States Courthouse, 125 Market Street, Youngstown,
Ohio. The trial of this matter shall begin on at 9:00 a.m. on a stand-by
basis, for a period of two weeks in Courtroom 351, Federal Building - United States Courthouse,
125 Market Street, Youngstown, Ohio. Because this case is designated as a standby case, it shall
be the responsibility of counsel to keep in contact with the Court’s Courtroom Deputy at 330-
884-7435, concerning the exact date and time of trial. This matter will remain on a stand-by
status subject to call for a period of two (2) weeks. Counsel should appear at least 30 minutes
before trial time. LEAD COUNSEL WHO WILL PRESENT AT TRIAL AND PARTIES
WITH FULL SETTLEMENT AUTHORITY MUST BE PRESENT UNLESS EXCUSED
BY THE COURT UPON WRITTEN MOTION. The attorney who is primarily responsible
for each party’s case shall personally attend the final pre-trial conference and shall be prepared
and authorized to discuss all relevant issues, including settlement. When a party is other than an
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individual or when a party’s interests are being represented by an insurance company, an
authorized representative of such party or insurance company, with full authority to settle, shall
attend. Failure of counsel to comply in good faith with the following procedures may result in
the imposition of sanctions.
A. Trial Documents
1. Counsel are advised that all documents, notices and orders in this matter shall be filed
electronically rather than on paper, except as provided for in the Electronic Filing Policies and
Procedures Manual, which governs electronic filing in the Northern District of Ohio and also
provides helpful information on system requirements and usage. The manual can be accessed
online.1 Electronically filed documents should be in a text-searchable format.
Notice of filings are sent electronically. It is the responsibility of each counsel of record
to set up a user e-mail account to receive e-mail notification and to check that e-mail account on
a regular basis. Directions for setting up e-mail notification are at the following link:
http://www.ohnd.uscourts.gov/home/clerk-s-office-and-court-records/electronic-filing/
If you have questions about electronic filing, please call any Northern District of Ohio
Clerk’s Office location or our CM/ECF Help Desk at 1-800-355-8498.
2. The following trial documents are to be submitted to the Court and opposing counsel
not later than 4:00 p.m., ten (10) days prior to the trial date:
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http://www.ohnd.uscourts.gov/assets/Rules_and_Orders/Local_Civil_Rules/Local_Civil_R
ules.htm
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a. Preliminary Statement: Counsel for the parties shall confer in
person and agree upon 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 prior to voir dire. This statement
will be used to set the context of the trial for the jury.
b. 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 upon a complete set of Jury
Materials. Counsel may separately submit disputed proposed Jury
Materials to the Court and opposing counsel, supported by legal
authority. The Court may reject any proposed Jury Materials. The
Court will reject any proposed Jury Materials espousing a legal
theory that is not supported by a citation to sound legal authority.
Ultimately, a single joint submission of jury instructions, jury
interrogatories and verdict forms shall be filed, providing: (1)
agreed upon instructions; (2) instructions proposed by the Plaintiff,
but opposed by Defendant; and (3) instructions proposed by
Defendant, but opposed by the Plaintiff. All proposed instructions
shall be supported by citations to legal authority.
c. Trial Briefs: Counsel for the parties shall submit to the Court 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: (1) a statement of the facts;(2) a
complete discussion of the controlling law together with specific
citations of statutes and case law; and (3) a discussion of any
evidentiary issues likely to arise at trial.
3. Witness and exhibit lists: Counsel shall provide to the Court and opposing counsel
witness and exhibit lists no later than three (3) business days prior to the trial date. The lists
shall provide a brief description and the purpose of each witness to be offered, and shall list and
briefly describe each item of documentary or physical evidence to be offered. Each attorney shall
have a continuing obligation to supplement the party’s witness list immediately upon learning of
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any additional witness. Witnesses not listed or provided before the trial starts shall not testify at
trial, and exhibits not listed shall not be introduced at trial, absent a showing of good cause. This
rule applies to lay witnesses as well as expert witnesses.
4. Exhibits: All exhibits must be marked before trial in accordance with Local Civil
Rule 39.1. The Court is using new technology to facilitate the viewing of exhibits by jurors.
Each party must submit all exhibits on a single storage device such as a CD, DVD or USB drive.
A separate CD or USB drive should be provided for the 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 by 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:
1-a_photograph.jpg
12_2009 Tax Statement.pdf
35d.pdf
12(a)_camera footage.wmv
Any questions regarding the naming conventions for the electronically stored exhibits
should be directed to David Zendlo at (216) 357-7053.
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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., “Plaintiff 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 the Plaintiff’s exhibit 1 is a three-page document, the first page
should be marked as Plaintiff 1-1, the second page marked Plaintiff 1-2, etc. If there are multiple
defendants, the party’s last name should precede the numbers or letters (e.g.,“Deft. Jones-1001”).
Exhibit stickers are available from the Clerk on request.
The Court no longer requires binders containing hard copies of exhibits, in addition to the
electronic copies provided. Should the Court require hard copies, the parties shall be prepared to
accommodate.
If demonstrative evidence such as models or sketches, are to be used at trial, counsel shall
exchange them no later than two (2) days prior to the date of trial.
The Court will not allow exhibits to be given to the jury during trial without prior Court
approval. If the Court approves such a request, sufficient copies for each juror must be provided
so all jurors may view the exhibit simultaneously. Exhibits not identified and exchanged prior to
trial shall not be introduced at trial, absent a showing of good cause.
5. Undisputed Fact Stipulation: Counsel for Plaintiff shall prepare and submit to
opposing counsel at least fourteen (14) days prior to the pretrial conference, a proposed
stipulation as to undisputed facts for use at trial, and for submission to the jury in the event of a
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jury trial. Opposing counsel shall add to and note disagreement, if any, with the proposed
stipulation and so notify counsel for Plaintiff as to proposed additions, deletions, or objections
ten (10) days prior to the pretrial conference.
At least seven (7) days prior to the pre-trial conference, Counsel shall meet and put in
final form the stipulation as to undisputed facts, reserving any objections as to relevancy, and
submit the signed stipulation to the Court three (3) days prior to the pretrial conference via the
Court’s electronic filing system.
The final stipulation is intended to expedite the fact-finding process at trial. Copies of the
stipulation will be submitted to the jury in all jury trials. Only the final agreed upon stipulation
should be filed with the Court. Copies of any documents to which the parties have stipulated
should be appended to the stipulation.
B. Use of Depositions as Evidence
If the parties intend to use any deposition as evidence during the trial, the parties must file
these depositions by the time of the final pretrial conference with the portions to be read noted
therein. An opportunity will be given to opposing counsel to read any omitted portion. Counsel
will be notified at trial of rulings on all objections pertaining to the depositions.
Use at trial of videotape depositions is encouraged. The parties are specifically direct to
comply with the provisions of LR 32.1. In addition, when videotape depositions will be
presented in lieu of live trial testimony, counsel must file with the Court a complete written
transcript of the videotape deposition prior to its use.
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C. Non-Jury Cases
For matters not submitted to a jury, the Court requires counsel to submit at least one (1)
week prior to the scheduled trial date (1) a statement of the issues, (2) proposed findings of fact,
and (3) proposed conclusions of law.
The proposed findings of fact must cite the particular witness(es) and physical evidence
upon which each proposed finding is based. Likewise, the proposed conclusions of law must cite
the direct legal authority upon which each proposed legal conclusion is based.
The Court may also order the parties to submit post-trial briefs. These briefs will be
limited to specific questions assigned by the Court during or after trial. The Court may also
permit counsel to file supplemental findings of fact and conclusions of law following the trial.
The parties must exchange any post-trial briefs, as well as any supplemental findings of
fact or conclusions of law.
D. Other Trial Matters
1. Objections: Any objections to a proposed witness or exhibit shall be filed and served
no later than 12:00 p.m. noon one (1) business day before the trial. Such objections shall include
a brief statement as to why the proposed witness or exhibit should not be permitted or admitted,
as well as specific citations to pertinent case law or other legal authority.
2. Motions in Limine and Other Evidentiary Matters: Counsel shall submit a trial
memorandum with citations in support of a request to exclude evidence. If the qualifications of
an expert witness are being challenged, the Court will conduct a Daubert hearing before trial.
The Court expects counsel to submit thorough briefs and/or a voir dire of the expert’s testimony
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so that the Court has sufficient evidence to perform it’s gatekeeping function of ensuring the
expert’s testimony is reliable and relevant.
The Court will not hold bench or chamber conferences 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.
3. Courtroom Conduct and Procedure:
a. Counsel should expect the trial to be conducted from 9:00 a.m. to 4:00
p.m., Monday through Friday. Counsel will be notified of an occasional
variance to this schedule;
b. Counsel should arrive 30 minutes prior to the start of a day in trial;
c. When appearing in this Court, all counsel (including, where the context
applies, all persons at counsel table) shall abide by the following:
i. Stand as court is opened, recessed or adjourned.
ii. Stand when the jury enters or retires from the courtroom.
iii. Stand when addressing the Court. When making an
objection, state the legal basis only. If a response is
necessary, be brief, without making a speech. If it is
critical to the case that counsel be heard in more detail, a
bench conference may be called to explain the basis for an
objection. Otherwise, bench conferences will not be
permitted.
iv. Stand at the lectern while examining any witness; except
that counsel may approach the witness for purposes of
handling or tendering exhibits.
v. Stand at the lectern while making opening statements or
closing arguments.
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vi. Address all remarks to the Court, not to opposing counsel.
vii. Avoid disparaging personal remarks or acrimony toward
opposing counsel and remain wholly detached from any ill
feeling between the litigants or witnesses.
viii. 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.
ix. Only one attorney for each party shall examine, or cross
examine each witness. The attorney stating objections, if
any, during direct examination, shall be the attorney
recognized for cross examination.
x. 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, she must be
standing in front of the witness box ready to be sworn.
xi. In examining a witness, counsel shall not unnecessarily
repeat or echo the answer given by the witness.
xii. 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.
4. Daily Transcripts: Counsel shall advise the Court no later than three (3) days prior to
the date of trial, if daily transcripts of the trial testimony will be requested.
5. Continuances: The Court will not continue a trial or hearing without a written
motion stating the reason for the request, endorsed in writing by all moving parties and their lead
counsel of record. A motion for continuance due to a conflict of trial assignment dates will not
be considered unless a copy of the conflicting assignment is attached. The motion shall be filed
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and served not less that fifteen (15) days after counsel becomes aware of the conflict, and not less
that thirty (30) days before trial.
6. Conduct of Counsel In addition to that provided herein, 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.
7. Location of Counsel: Counsel are required to remain in the proximity of the
Courtroom during jury deliberations. If you need to leave the immediate area, you are required to
report to the courtroom deputy.
8. Video Conference Technology: Witness testimony may be offered during trial via
Video Conference 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 be sure the video conference communication works in the courtroom. It
is also Counsel’s responsibility to ensure that the witness, Court and opposing counsel have all
necessary exhibits. Counsel must be prepared to assure the Court that the witness is who he or
she claims to be. Counsel implicitly makes this assurance whenever a witness is called. But, the
likelihood of a video conferenced witness being an imposter is greater than if the witness were
live.
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9. Settlement: If the parties reach a settlement in the case, counsel are directed to notify
the Court immediately by calling 330-884-7435. FAILURE TO DO SO MAY RESULT IN THE
IMPOSITION OF SANCTIONS in the event that the Court or the Court’s law clerks spend time
resolving pending motions after the failure to notify regarding settlement. Jury costs will be
assessed pursuant to Local Rule 54.1 if settlement is achieved after a jury has been called.
E. Electronic Courtroom
The Court is pleased to have one of the most technologically advanced courtrooms in the
United States. This courtroom features, among other things, the technology necessary to present
evidence in a video format. The Court encourages counsel to utilize this technology whenever
appropriate.
Counsel bears the responsibility for developing proficiency with this new technology
prior to trial. Counsel are encouraged to test their exhibits and technology in the Courtroom
immediately before or after the final pretrial by making an appointment with the Court’s
Courtroom Deputy who may be contacted at 330-884-7435. Counsel are also encouraged to visit
the Court’s website at http://www.ohnd.uscourts.gov/home/courtroom-support/jers/ to obtain
information on scheduled training sessions.
IT IS SO ORDERED.
Date Benita Y. Pearson
United States District Judge
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