POLICIES AND PROCEDURES
Judge John M. Gallagher
United States District Court for the Eastern District of Pennsylvania
Edward N. Cahn Courthouse & Federal Building
504 W. Hamilton Street, Suite 4701
Allentown, Pennsylvania 18101
Phone: 610-434-3457
Fax: 610-434-3459
[email protected]
Magistrate Judge Assignment: Magistrate Judge Pamela A. Carlos
POLICIES AND PROCEDURES
Judge John M. Gallagher
TABLE OF CONTENTS
I. GENERAL MATTERS ............................................................................................ 1
A. Communication with the Court ...................................................................................... 1
B. Telephone Conferences .................................................................................................. 1
C. E-Filing Guidelines ........................................................................................................ 2
D. Filing Under Seal and Redacting Documents................................................................. 2
E. Pro Hac Vice Motions .................................................................................................... 4
II. CIVIL CASES............................................................................................................ 5
A. Pretrial Procedures.......................................................................................................... 5
1. Rule 16 Conferences....................................................................................................... 5
2. Final Pretrial Conference ................................................................................................ 6
3. Continuances and Extensions ......................................................................................... 7
4. Stipulations and Proposed Orders................................................................................... 7
B. Motion Practice .............................................................................................................. 8
1. Oral Arguments on Motions ........................................................................................... 8
2. Formatting Requirements ............................................................................................... 8
3. Replies and Sur-Replies ................................................................................................. 8
4. Page Limits and Content of Briefs or Legal Memoranda ............................................... 9
5. Dispositive Motions........................................................................................................ 9
6. No Courtesy Copies...................................................................................................... 11
7. Reconsideration ............................................................................................................ 12
C. Discovery Matters ........................................................................................................ 12
1. Length of Discovery Period and Extensions ................................................................ 12
2. Discovery Conferences and Dispute Resolution .......................................................... 12
3. Privilege logs ................................................................................................................ 13
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Judge John M. Gallagher
D. Settlement and Settlement Conferences ....................................................................... 14
E. Confidentiality/Protective Orders ................................................................................. 14
F. Final Pretrial Memoranda ............................................................................................. 16
G. Arbitration .................................................................................................................... 16
III. COURTROOM AND TRIAL PROCEDURES .................................................... 18
A. Scheduling Cases .......................................................................................................... 18
B. Motions In Limine ........................................................................................................ 18
C. Courtroom Technology ................................................................................................ 18
D. Jury Selection in Civil Cases ........................................................................................ 18
E. Note Taking By Jurors.................................................................................................. 19
F. Trial Briefs.................................................................................................................... 19
G. Examination of Witnesses Out of Sequence................................................................. 19
H. Opening and Closing Statements.................................................................................. 19
I. Videotaped Testimony.................................................................................................. 19
J. Preparation of Exhibits ................................................................................................. 20
K. Offering Exhibits into Evidence ................................................................................... 20
L. Directed Verdict Motions ............................................................................................. 21
M. Proposed Jury Instructions and Verdict Forms............................................................. 21
N. Proposed Findings of Fact and Conclusions of Law .................................................... 22
O. Unavailability of Witness ............................................................................................. 22
P. Objections ..................................................................................................................... 23
Q. Lay Witness Opinion .................................................................................................... 23
R. Jury Deliberations......................................................................................................... 23
1. Written Jury Instructions .............................................................................................. 23
2. Exhibits in the Jury Room ............................................................................................ 23
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Judge John M. Gallagher
3. Handling Jury Requests to Read Back Testimony or Replay Tapes ............................ 23
4. Availability of Counsel During Jury Deliberation ....................................................... 24
5. Taking the Verdict ........................................................................................................ 24
6. Polling the Jury ............................................................................................................. 24
7. Interviewing the Jury .................................................................................................... 24
S. Offers of Proof.............................................................................................................. 24
T. Development of Young Attorneys................................................................................ 24
IV. CRIMINAL CASES ................................................................................................ 25
A. Oral Argument and Motions ......................................................................................... 25
B. Pre-Trial Conferences ................................................................................................... 25
C. Pre-Trial Hearings ........................................................................................................ 25
D. Voir Dire....................................................................................................................... 25
E. Trial Memoranda .......................................................................................................... 26
F. Proposed Jury Instructions and Verdict Forms............................................................. 26
G. Guilty Plea Memoranda ................................................................................................ 27
H. Sentencing .................................................................................................................... 27
POLICIES AND PROCEDURES
Judge John M. Gallagher
I. GENERAL MATTERS
A. Communication with the Court
Counsel or pro se parties may correspond with the Court by letter, email or telephone
concerning routine scheduling and administrative matters. The Court expects counsel and pro se
parties to copy opposing counsel or pro se parties on their written communications with the Court.
All communications with the Court should be directed to the deputy clerk or chambers.
Deputy Clerk:
Christine C. Stein – 610-391-7012 –
[email protected]
Counsel should submit current telephone numbers, fax numbers, e-mail addresses and any
changes to the Clerk’s Office and Judge Gallagher’s deputy clerk.
Counsel should not communicate with the law clerks unless directly contacted by a law
clerk or instructed by the Court to do so. Law clerks may not render advice to counsel and have
no authority to grant continuances or to give advice on substantive or procedural matters.
B. Telephone Conferences
Judge Gallagher may hold telephone conferences to resolve scheduling matters or
discovery disputes. The Court will notify counsel of the date and time for the telephone
conference. Counsel for the moving party will be responsible for providing telephone
conferencing details to all parties and to Judge Gallagher through his deputy clerk. Parties are
prohibited from recording any conferences or proceedings without prior written approval of the
Court.
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C. E-Filing Guidelines
Judge Gallagher requires all attorneys to use Electronic Case Filing (ECF). Attorneys
appearing before Judge Gallagher are required to register as ECF Filing Users in accordance with
Local Rule of Civil Procedure 5.1.2. Pro se parties are not required to use ECF.
When submitting exhibits via ECF, Parties should submit each exhibit as a separate
document on the CM/ECF system, rather than as a single file. If the Court receives a filing with a
single document marked “Exhibits,” it will strike the filing. In addition, when parties submit
exhibits via ECF, they must give each document a name identifying the document. Thus, it is not
sufficient to label a file “Exhibit A.” Instead, the name should be “Exhibit A: Contract,” “Exhibit
B: Declaration of John Smith,” or some other reference to permit the Court to identify what the
exhibit is without having to open the file.
Deposition testimony and other transcripts shall be submitted to the Court as full-sized
pages, not manuscripts. In addition, parties submitting deposition transcripts should provide a
cover page identifying the witness and relevant pages from the transcripts. Parties should not
submit the entire transcript unless the entire transcript is relevant to the issue before the Court.
The Court will request the entire transcript if it deems it necessary.
Parties should not submit to the Court unpublished decisions that are available on Westlaw
or Lexis.
D. Filing Under Seal and Redacting Documents
Public policy favors transparency in judicial proceedings. See Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 784 (3d Cir. 1994).
Except in emergency situations, no documents may be filed under seal without first
obtaining leave. All motions for leave to file documents under seal should be filed on the public
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Judge John M. Gallagher
docket. Insofar as a motion contains or refers to information that the movant seeks to file under
seal, the movant may redact that information in the copy of the motion filed on the docket. When
a movant files a motion with redacted materials, the movant must also provide the Court and all
other parties with an unredacted copy of the motion. The movant must also provide the Court and
all other parties with unredacted copies of the motion and all documents that the party proposes to
file under seal.
In recognition of the common law right of public access to judicial records, a motion for
leave to file under seal must articulate, clearly and specifically, why the moving party’s “interest
in secrecy” outweighs the “presumptive right of public access.” In re Avandia Mktg., Sales Pracs.
& Prod. Liab. Litig., 924 F.3d 662, 672 (3d Cir. 2019). The motion—and the proposed order
attached to the motion—must identify “clearly defined and serious injur[ies]” the movant will
suffer if the materials are not kept under seal. Avandia, 924 F.3d at 672.The Court will not grant
a motion for leave to file under seal that fails to identify the movant’s interests in nondisclosure
with specificity.
Even when the Court grants a motion for leave to file under seal, the Court will generally
still expect the parties to file redacted versions of the sealed documents on the public docket unless
the redactions would be so extensive as to render the document unreadable. Proposed orders
attached to motions for leave to file under seal must include language requiring the parties to file
redacted versions of the sealed documents to the public docket. If a movant omits this language
from its proposed order, the movant must explain in its motion why redaction would render the
documents unreadable.
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Judge John M. Gallagher
E. Pro Hac Vice Motions
To be admitted pro hac vice, associate counsel of record should submit a written motion
for admission. The admission of out-of-the-jurisdiction counsel pro hac vice does not relieve
associate counsel of responsibility for the matter before the Court. The Court will deny pro hac
vice motions for which no fee has been submitted and recorded on the docket.
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II. CIVIL CASES
A. Pretrial Procedures
1. Rule 16 Conferences
The Court will schedule a preliminary pretrial conference pursuant to Federal Rule of Civil
Procedure 16 once each defendant has appeared in the case. Lead trial counsel must attend the
Rule 16 conference in person. Counsel taking part in any pre-trial conference must be prepared
to speak on every subject, including settlement, and have authority from their clients to do so.
Counsel should be prepared to discuss all claims and defenses in detail and shall have a thorough
understanding of the facts.
At least seven calendar days prior to the pretrial conference, counsel must submit to
chambers a joint status report pursuant to Federal Rule of Civil Procedure 26(f). The parties must
use the Court’s sample Rule 26(f) form that will be attached to the order scheduling the Rule 16
conference. 1 This form is also available on Judge Gallagher’s page on the Court’s website.
The Court relies on counsel’s good faith compliance with Rule 26(f) in all respects.
The Rule 26(f) meeting should take place as early in the case as possible. Pending motions do not
stay the parties’ obligations to meet and confer pursuant to Federal Rule of Civil Procedure 26(f)
or to attend a conference pursuant to Federal Rule of Civil Procedure 16. The meeting should be
a meaningful and substantive discussion to formulate the proposed discovery plan required by the
Rule. This discussion should include anticipated deposition witnesses, a proposed deposition
schedule, and the need for any third-party subpoenas and waiver from the opposing party.
1
In certain types of cases, it may be necessary for counsel to adapt the shell 26(f) form to
accommodate the proposed deadlines, i.e. class actions, ERISA, FAPE, etc.
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The parties should begin discovery as soon as permitted under the applicable rules without
waiting for the Rule 16 conference and regardless of whether a motion is pending. If a party wishes
to stay discovery during the pendency of a motion, it should present its request in person at the
Rule 16 conference. However, the Court will grant a stay of discovery only in extraordinary
circumstances.
At the initial pretrial conference, the parties should be prepared to address all topics listed
in the Local Rule of Civil Procedure 16.1(b) and Federal Rule of Civil Procedure 16(b) and (c),
the progress of initial disclosure under Federal Rule of Civil Procedure 26(a) and any settlement
or mediation proposals. The Court will issue a Rule 16 Scheduling Order following the
conference.
Lead counsel shall participate in the Rule 26 conference, attend the Rule 16 conference,
and be deemed lead counsel for all future proceedings. A designation of “lead counsel” will mean
that counsel will attend all court proceedings.
2. Final Pretrial Conference
There will be a final Pretrial Conference within ten days of the trial. Counsel shall comply
with Local Rule 16.1 regarding the submission of a pretrial memorandum. Unless otherwise
specified in a scheduling order, these memoranda shall be filed no later than then ten days prior to
the Pretrial Conference.
During this conference, the Court will address factual and legal issues, the admissibility of
exhibits and scheduling issues. At the conclusion of the conference, the Court will issue a final
pretrial order or a final scheduling order in a complex case.
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3. Continuances and Extensions
Unless there is good cause to justify a change, the parties are expected to adhere to the
dates contained in the scheduling order. The Court will not entertain extension requests that
are based on developments that could reasonably have been anticipated at the time of the
Rule 16 conference. Parties’ failure to conduct discovery in a timely manner is not good cause
for an extension or continuance.
If an extension does not affect the deadlines for dispositive motions or trial dates, the parties
may present their request for an extension via signed stipulation. Pursuant to Local Rule of Civil
Procedure 7.4(b)(2), no stipulation of counsel regarding an extension shall be effective until
approved by the Court. Accordingly, on any stipulation regarding an extension, counsel must
include a blank signature line for the Court.
If an extension will affect the deadline for filing dispositive motions or the trial dates,
counsel must make a written request that sets forth the basis for the extension and indicates whether
the other parties agree to or oppose the request and proposes amended dates. A request for an
extension of the deadline for filing dispositive motions or a continuance of the trial date must be
made sufficiently prior to the due date to allow time for the Court to consider it. These requests
should be made by motion, although an unopposed request may be made by letter to the Court.
4. Stipulations and Proposed Orders
Contrary to Local Civil Rule 5.1.2(10), all stipulations and proposed orders must be
emailed to chambers rather than sent to the Clerk of Court.
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B. Motion Practice
1. Oral Arguments on Motions
If the judge believes oral argument will be helpful in deciding a matter, he will schedule it,
particularly when it involves a dispositive motion. A party desiring oral argument should request
it by letter.
2. Formatting Requirements
Except as set forth herein, motion practice will be conducted in accordance with Local Rule
of Civil Procedure 7.1.
All written submissions to the Court must be prepared in 12-point, Times New Roman font,
with at least one-inch margins. All footnotes shall appear in 12-point font as well. Motion papers
and memoranda of law must be double-spaced. Any briefs longer than ten pages must include a
table of contents. Counsel shall post searchable versions of their briefs to the CM/ECF system.
In all written submissions to the Court, citations to documents on the docket, e.g.,
“Amended Complaint,” should identify those documents by ECF number.
3. Replies and Sur-Replies
Replies and sur-replies are not permitted unless leave to file them is granted upon motion
of a party. Such briefs should be attached to a motion for leave as an exhibit, must be concise and
address only new issues raised by opposing counsel. The Court discourages any replies or sur-
replies that repeat or rehash previous arguments.
Any replies or sur-replies must be filed as soon as practicable, but in any event, no later
than seven days after the previous filing.
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Judge John M. Gallagher
4. Page Limits and Content of Briefs or Legal Memoranda
All grounds for relief should be set forth in a single, comprehensive motion. A motion to
dismiss, for example, should not be divided into separate motions for each count but rather should
include all bases for relief. Opening briefs filed in support of and in opposition to a motion should
be limited to twenty pages. This includes the table of contents and any attachments or addenda.
If a party requires more than twenty pages to explain its position to the Court, a motion to exceed
the page limit should be filed setting forth good cause for granting an exception to this rule.
Replies and sur-replies, where granted, must be limited to ten and seven pages, respectively.
5. Dispositive Motions
Before filing a motion pursuant to Federal Rule of Civil Procedure 12(b)(6), counsel shall
first contact opposing counsel to discuss the substance of the contemplated motion and to provide
an opportunity to cure any alleged pleading deficiencies. This conference shall take place at least
seven days prior to the filing of the motion. If the parties are unable to reach a resolution that
eliminates the need for a 12(b)(6) motion, counsel for the moving party shall include, along with
the 12(b)(6) motion, a certification that the parties met and conferred regarding the alleged
pleading deficiencies. These efforts must include substantive verbal communications, whether by
phone or in person. Exchanges of letters or e-mails are not sufficient. It is not sufficient to report
that opposing counsel was not available or that the parties made “reasonable efforts.” The Court
will deny a 12(b)(6) motion that does not meet these requirements.
When filing a motion for summary judgment, all parties must comply with the following
requirements in addition to the requirements of Federal Rule Civil Procedure 56:
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Statements of Material Facts
a. The movant shall file, in support of the motion for summary judgment, a
separate “statement of undisputed facts” that set forth, in numbered paragraphs, all material
facts the movant contends are undisputed.
b. The respondent shall file, in opposition to the motion for summary
judgment, a separate “statement of disputed facts” responding to the numbered paragraphs
set forth in the movant’s statement of undisputed facts. If the respondent disputes a fact,
the respondent must explain its basis for disputing the fact and cite evidence in the record
supporting the respondent’s position. The respondent shall also set forth, in separate
paragraphs under the heading “statement of additional facts,” any additional facts which
the respondent contends preclude summary judgment.
c. All material facts set forth in the statement of undisputed facts will be
deemed admitted unless specifically controverted by the opposing party. If a party disputes
a fact without citing supporting evidence, the fact will be deemed admitted.
d. Statements of material facts in support of or in opposition to a motion for
summary judgment shall include specific and not general references to the parts of the
record which support each of the statements. Each stated fact and each statement that a
material fact is disputed shall cite to the source relied upon, including the title, page and
line of the document supporting the statement.
Appendices
a. The movant shall file an appendix containing all the evidence to which the
movant refers in its motion. The respondent shall file a supplemental appendix containing
any additional evidence to which the respondent refers in its response.
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b. Insofar as practicable, a movant shall file its appendix in the same ECF entry
in which the movant files its motion or response.
c. When more than one party intends to move for summary judgment at the
same time, the parties shall submit a joint appendix containing all the exhibits that will be
referenced in any party’s motion. When more than one party intends to respond, the parties
shall submit a supplemental joint appendix containing all the exhibits that will be
referenced in any party’s response.
d. When the parties are relying on a joint appendix, the parties shall file the
joint appendix in its own ECF entry separate from the ECF entry in which any party has
filed its motion or response. The joint appendix shall be filed on the same day the first
motion for summary judgment is docketed.
e. The parties shall “bates stamp” their appendices. All references to the
appendix made in the motions and responses shall identify the bates number of the
referenced page.
f. Judge Gallagher will not consider any evidence not included in a timely
filed and appropriately formatted appendix.
***
A movant’s failure to follow the foregoing procedures for dispositive motions in all
respects will result in a denial of the motion. Respondent’s failure to comply with these
procedures in all respects will result in the Court’s considering the motion uncontested.
6. No Courtesy Copies
Do not send copies—physical or digital—of filings to chambers. If the Court desires a
courtesy copy of any particular filing, the Court will reach out and request one specifically.
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Judge John M. Gallagher
7. Reconsideration
Motions for reconsideration should be filed sparingly. Any motion for reconsideration of
a discovery order must itself comply with the page limits in Section II.C.1., below.
C. Discovery Matters
1. Length of Discovery Period and Extensions
The parties are required to commence discovery immediately upon receipt of notice of the
Rule 16 conference. Pending motions will not excuse counsel from proceeding with discovery.
Counsel will be required to report on the progress of discovery at the Rule 16 conference.
The Court usually allows up to 120 days from the date of the Rule 16 conference to
complete discovery. A case will ordinarily be listed for trial 120 days after the completion of
discovery.
2. Discovery Conferences and Dispute Resolution
The Court urges the parties to settle discovery disputes among themselves. If Court
assistance is required, Judge Gallagher prefers that simple disputes be addressed by telephone
conferences. Counsel should provide the Court with a brief letter explaining the discovery dispute
and requesting a conference. Such letters should be filed on ECF. For complex disputes, if the
parties remain unable to resolve the dispute after the reasonable efforts required by Local Civil
Rule 26.1(f), the Court will consider a motion to compel under Local Civil Rule 26.1(b). Counsel
for the aggrieved party shall file with the Court a motion in conformity with Local Civil Rule
26.1(b). The motion shall not exceed five pages and shall not contain exhibits and shall not
include a brief or memorandum of law.
Once a motion to compel is filed, the Court will schedule a telephone or in-person
conference with counsel as soon as possible to resolve the dispute. The responding party must file
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Judge John M. Gallagher
a response within five days. The response should also be limited to five pages and shall not include
exhibits or a brief or memorandum of law. If the parties resolve the dispute, the conference will
be cancelled. Judge Gallagher permits telephone conferences to resolve disputes during
depositions in cases where the deposition would otherwise have to be adjourned. Counsel should
not walk out of a deposition before making an effort to contact the Court and obtain guidance. If
it is at any time determined that counsel walked out of a deposition without good cause, the Court
may require counsel and/or counsel’s client to pay all the expenses the parties incur in rescheduling
and completing the deposition.
In a filed discovery motion, the certificate of counsel must provide specific details about
the parties’ efforts to resolve the dispute informally. These efforts must include verbal
communications, whether by phone or in person. Exchanges of letters or e-mails are not sufficient.
It is not sufficient to report that opposing counsel was not available or that the parties made
“reasonable efforts.” The Court will deny a discovery motion that does not meet these
requirements. All motions must contain the certification required under Local Civil Rule 26.1(f).
3. Privilege logs
Parties preparing privilege logs must provide information sufficient for the opposing party
to determine the basis for the assertion of privilege. For claims of privilege covering multiple
e-mails, the party asserting privilege must describe the specific e-mails that are being withheld, as
opposed to only the e-mail at the top of the e-mail string, and the basis for withholding each
e-mail. Where several e-mails are exchanged, and the same privilege claim applies to all of those
e-mails, the party asserting privilege may describe the e-mails collectively, rather than one-by-
one.
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D. Settlement and Settlement Conferences
Settlement may be discussed at the initial Rule 16 status conference and at any subsequent
conference. The Court will not participate in settlement negotiations in non-jury cases. A case
may be referred to a magistrate judge for a settlement conference, but counsel should not expect
the Court to stay discovery or trial dates merely because the parties are awaiting their appointment
with the magistrate judge and wish to avoid incurring further costs. Accordingly, if counsel foresee
a reasonable probability that they will be interested in scheduling a settlement conference, they
should submit a request for a referral for a settlement conference as early as possible in the
discovery period.
Should the parties reach a settlement, case dismissal will not be stayed pending the payment
of settlement funds.
E. Confidentiality/Protective Orders
Public policy favors transparency in judicial proceedings. See Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 784 (3d Cir. 1994).
Requests for confidentiality/protective orders must be made by formal motion. The Court
will not accept stipulated proposed orders in lieu of a motion. As required by Federal Rule of Civil
Procedure 26(c), a motion seeking a confidentiality/protective order must explain why there is
good cause for the Court to issue the order. See In re Avandia Mktg., Sales Pracs. & Prod. Liab.
Litig., 924 F.3d 662, 671 (3d Cir. 2019) (setting forth factors courts may consider in determining
whether good cause exists). The proposed order attached to the motion must itself also state the
reasons good cause exists and state that the private interests in nondisclosure outweigh the public
interests in disclosure.
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As required under Federal Rule of Civil Procedure 26(c), the parties must confer and
attempt to reach an agreement regarding the confidentiality of discovery materials before seeking
the Court’s intervention. If the parties are able to form a mutually acceptable confidentiality
agreement but still desire that agreement to be memorialized in a court order, the parties must, in
their motion seeking entry of the order and their proposed order, state why there is good cause to
enter an order rather than leave the confidentiality of discovery materials to be governed by the
parties’ mutual agreement. Cf. Pansy, 23 F.3d at 788–89 (“[I]f parties cannot demonstrate good
cause for a court order of confidentiality over the terms of settlement, they have the option of
agreeing privately to keep information concerning settlement confidential, and may enforce such
an agreement in a separate contract action.”).
When a proposed confidentiality/protective order would permit a party to file any material
to the docket under seal, the motion and the proposed order must identify justifications for sealing
the materials that would overcome the “presumptive right of public access,” as discussed further
in section I.E, supra. Id. at 672.
The Court will not approve a protective order containing language that gives the parties
discretion to file materials under seal without the Court’s prior and specific approval. In cases
involving large scale discovery, however, the Court will consider approving protective orders that
grant protection to discovery materials on a categorical basis so long as each protected category is
reasonably well defined. If a party later challenges such a protective order, the party seeking to
maintain protection over the materials will bear the burden of justifying those materials’ continued
protection on an item-by-item basis. See Avandia, 924 F.3d at 671 n.5.
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Judge John M. Gallagher
Further, the Court will not approve any protective order unless it contains language
providing that “the court reserves its inherent power to modify the terms of this agreement and
permit the disclosure of information where the interest of justice so requires.”
F. Final Pretrial Memoranda
Unless otherwise ordered by the Court, the pretrial memorandum should be prepared in
accordance with the provisions of Local Rule of Civil Procedure 16.1(c) and should also include
the following items:
1. All stipulations of counsel.
2. A statement of objection to: (1) the admissibility of any exhibit based on
authenticity; (2) the admissibility of any evidence expected to be offered for
any reason except relevancy; (3) the adequacy of the qualifications of an expert
witness expected to testify; and (4) the admissibility of any opinion testimony
from lay witnesses pursuant to Federal Rule of Evidence 701. These objections
must describe with particularity the ground and the authority for the objection.
3. An identification of deposition testimony (including videotaped deposition
testimony) that the party intends to offer during its case-in-chief. The statement
should include citations to the page and line number and the opposing party’s
counter-designations.
4. A statement of any anticipated important legal issues on which the Court will
be required to rule as well as counsel’s single best authority on the issue.
G. Arbitration
Judge Gallagher will not hold a Rule 16 conference or issue a scheduling order in
arbitration track cases unless there is a de novo appeal from an arbitration award hearing.
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The parties are expected to complete all discovery prior to the date of the arbitration
hearing. Upon demand for trial de novo from an arbitration award, the Court will issue a
scheduling order setting the date for trial at the earliest date available to the Court. Ordinarily,
discovery will not be allowed after the arbitration hearing is held. Nor will dispositive motions be
allowed after the arbitration hearing unless the motion was filed prior to the arbitration hearing
and left unresolved.
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III. COURTROOM AND TRIAL PROCEDURES
A. Scheduling Cases
A date for trial will be determined at the initial Rule 16 conference. Once a case is listed
for trial, counsel, parties and witnesses should be ready to start trial on the listed date, and counsel
should consider themselves formally attached for trial as of that date. Questions relating to
scheduling matters should be directed to Judge Gallagher's deputy clerk.
B. Motions In Limine
The time for filing motions in limine will be determined at the Rule 16 conference and will
be confirmed in the scheduling order.
C. Courtroom Technology
The Court holds proceedings in Courtroom 4B, which is equipped for electronic
presentation of evidence. Parties expecting to employ courtroom technology are required to
contact the Courtroom Deputy no later than the final pretrial conference to discuss their
technological needs. The Courtroom Deputy will then schedule a preliminary run to minimize
disruptions during the trial itself.
D. Jury Selection in Civil Cases
Counsel must submit voir dire questions to the deputy clerk at least two days before jury
selection. Insofar as counsel agree that certain questions should be asked, they may submit a list
of those questions jointly. Insofar as counsel do not agree upon any questions, they may submit
those questions independently. The Court will then review all the questions submitted and
determine which will be asked.
Ordinarily, the Court will not permit counsel to present questions to the jury panel but will
permit counsel to question prospective jurors once they are brought in for individual voir dire.
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Strikes for cause and hardship will be considered by the Court at the conclusion of each individual
voir dire. Once a sufficient number of viable prospective jurors have been identified, the parties
will have an opportunity to exercise peremptory challenges. Peremptory challenges will be
exercised by alternate strikes, plaintiff first, until each side has exercised each of its strikes or opts
not to use the remainder of their strikes.
Judge Gallagher will typically seat eight jurors in a civil case.
E. Note Taking By Jurors
Judge Gallagher permits jurors to take notes.
F. Trial Briefs
Parties should submit a trial brief only if a new or unique point of law is involved.
G. Examination of Witnesses Out of Sequence
The Court will permit counsel to examine his/her own witnesses out of turn for the
convenience of a witness.
H. Opening and Closing Statements
Judge Gallagher does not ordinarily put time limits on opening statements or closing
arguments. However, depending upon the issues in the case and the length of trial, time limits
may be imposed. Rebuttal must not be a rehashing of closing argument. Judge Gallagher will
charge the jury after counsels’ closing arguments.
I. Videotaped Testimony
Videotaped testimony should begin with the witness being sworn. Counsel should bring
objections to videotaped testimony to the Court’s attention during the final pretrial conference.
After the Court rules on any objections, counsel should edit the tapes before offering the
videotaped testimony at trial.
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J. Preparation of Exhibits
Exhibits should be exchanged in accordance with the scheduling order.
In civil cases, after exhibits have been exchanged, the parties must prepare joint exhibit
binders containing all the exhibits counsel may use at trial, including those for which admissibility
remains contested. Exhibits that are ruled inadmissible will simply not be used but need not be
extracted from the binder.
The parties may choose whether to label any given exhibit as a “Plaintiff,” “Defense,” or
“Joint” exhibit, but no single exhibit may have more than one designation. All exhibits should be
numbered consecutively, tabbed and contained in three-ring binders. Each binder must begin with
a table of contents that identifies all the trial exhibits, provides a brief description of each trial
exhibit, and identifies the binder in which the trial exhibit can be found. Audio and video exhibits
should be reflected in the exhibit binders with a single piece of paper identifying the contents of
the exhibit (e.g., “Exhibit 22: Audio recording of phone call on August 20, 2019”). At the final
pretrial conference, the parties shall provide the Court with two copies of the exhibit binders.
In criminal cases, the Court ordinarily does not expect defendants to exchange exhibits
with the Government ahead of trial or to prepare joint exhibit binders. Criminal defendants and
the Government should, however, prepare their exhibits in compliance with the formatting
requirements set forth in the preceding paragraph.
K. Offering Exhibits into Evidence
Unless the parties have an agreement as to the admissibility of a proposed exhibit, a witness
may not testify as to its content until it has been admitted into evidence. But the Court strongly
encourages counsel to reach agreements before trial as to the admissibility of exhibits. Insofar as
counsel reach any agreements regarding the admissibility of exhibits, they should state those
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Judge John M. Gallagher
agreements on the record or submit the agreements to the Court in writing so that the Court may
incorporate the agreements into the record.
L. Directed Verdict Motions
Motions for judgment as a matter of law in jury trials and motions for an involuntary
dismissal in non-jury trials may be made orally during trial.
M. Proposed Jury Instructions and Verdict Forms
Counsel must meet and discuss proposed jury instructions and verdict forms. Judge
Gallagher’s scheduling order will designate the date on which the parties must submit their
proposed jury instructions and verdict forms to the deputy clerk. Jury instructions and verdict
forms should be submitted to the deputy clerk as Microsoft Word files. Counsel must submit their
proposed jury instructions and verdict forms in a joint submission that indicates which instructions
and forms have been agreed upon and which remain contested.
Insofar as the parties disagree on any proposed jury instruction, the joint submission should
contain a concise statement that identifies each party’s position on the instruction, the reasons
supporting the party’s position, and citation to the best authorities supporting each party’s position.
These statements should be no longer than a few sentences for each party. These statements may
be included as footnotes following the contested instruction or as comments attached to particular
portions of the contested instruction.
Insofar as the parties disagree on the verdict form to be used, they may include a brief
statement supporting their positions in their joint submission. Ordinarily, however, the Court will
address disagreements over the verdict form during the final pretrial conference.
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Judge John M. Gallagher
The Court prefers to instruct the jury using the model jury instructions that have been
adopted in the relevant jurisdiction. 2 If a model jury instruction is used, then the party submitting
it shall state whether the proposed instruction is unchanged or modified. If a party modifies a
model instruction, then the party must highlight the additions or deletions and must attach a
comment that describes how the original text has been changed.
Proposed jury instructions must be double-spaced, have one-inch margins and be prepared
in 12-point, Times New Roman font. Citations to authority should be reflected in footnotes or
comments appended to the text and should not appear in the body of the proposed instructions.
N. Proposed Findings of Fact and Conclusions of Law
Proposed findings of fact and conclusions of law in non-jury cases should be submitted at
least seven days before the trial date. The parties may submit revised or supplemental findings of
fact and conclusions of law with specific reference to trial evidence at the conclusion of the case.
A schedule for the submission of revised findings/conclusions will be discussed at the conclusion
of trial.
O. Unavailability of Witness
If a witness is unavailable at the time of trial, as defined in Federal Rule of Civil Procedure
32(a)(3), the Court expects an oral or videotaped deposition to be used at trial for that witness,
whether the witness is a party, a non-party or an expert. The unavailability of such witness will
not be a ground to delay the commencement or progress of trial.
2
Model jury instructions for the Third Circuit are available online at
http://www.ca3.uscourts.gov/model-jury-instructions.
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Judge John M. Gallagher
P. Objections
Judge Gallagher does not permit speaking objections. Objections should be made by
reciting the appropriate rule number or a one-word basis.
Q. Lay Witness Opinion
Any party expecting to offer lay opinion testimony pursuant to Federal Rule of Evidence
701 regarding issues of liability or damages shall provide opposing parties with information or
documents supporting the testimony at the time required for submission of expert reports.
R. Jury Deliberations
1. Written Jury Instructions
The Court will give the jury a copy of the written jury instructions.
2. Exhibits in the Jury Room
During the charging conference, the Court and counsel will discuss which exhibits should
go out with the jury for their consideration during deliberations. Electronic/digital exhibits can be
given to the jury on a court-issued laptop that does not have internet access. If the parties would
like the jury to be able to review electronic/digital exhibits during their deliberations, the parties
must prepare a thumb drive that contains the exhibit and can be read by a computer running a
Windows operating systems. The deputy clerk will load these files from the thumb drive onto the
court-issued laptop and give each party an opportunity to inspect the laptop before it goes back to
the jury.
3. Handling Jury Requests to Read Back Testimony or Replay Tapes
At the jury’s request, the Court may permit the deputy clerk to read portions of the
testimony back to the jury or to replay the audio or video-taped testimony.
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Judge John M. Gallagher
4. Availability of Counsel During Jury Deliberation
Unless excused by the Court, counsel must remain within ten minutes of the courthouse
during jury deliberations.
5. Taking the Verdict
The deputy clerk will take the verdict in the presence of the Court, counsel and the parties.
6. Polling the Jury
If requested by counsel, the Court will poll the jury.
7. Interviewing the Jury
Judge Gallagher, upon request from counsel, will ask jurors if they wish to speak to
counsel. Judge Gallagher will allow counsel to interview jurors but will instruct the jury that they
are not required to talk to the attorneys.
S. Offers of Proof
Counsel must confer privately to resolve any unanticipated evidentiary issues that may
arise during trial. Only if they are unable to reach agreement should counsel bring the matter to
the deputy clerk’s attention at the beginning of the day or during an appropriate break when the
jury is not present.
T. Development of Young Attorneys
The Court encourages trial counsel to assign court presentations to less-experienced
attorneys, particularly where the less-experienced attorney is more familiar with the matter at hand.
If necessary, the Court will permit two lawyers to make an argument in order to ensure that a more
experienced counsel has an opportunity to buttress a younger lawyer’s presentation. The Court
will draw no inference from a party’s decision to have a younger lawyer make a particular
presentation, including as to whether the client deems the issue “important.”
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Judge John M. Gallagher
IV. CRIMINAL CASES
A. Oral Argument and Motions
The Court will generally permit oral argument on a substantive motion in a criminal case
upon request.
A motion to continue a criminal case must include the following: (1) the length of time the
party requests the case to be continued, (2) whether the motion is opposed, (3) the reason for the
request, and (4) an executed Speedy Trial Waiver form, such that the Court can conduct a speedy
trial analysis.
B. Pre-Trial Conferences
If a motion for continuance is filed, Judge Gallagher will generally hold a telephonic
scheduling conference with counsel. At the conclusion of the conference, the Court will issue a
scheduling order governing speedy trial issues, discovery, time for filing motions and the trial date.
C. Pre-Trial Hearings
The Court typically holds suppression, Starks, and Daubert hearings at least fourteen days
prior to trial. Following a hearing on a motion to suppress, the Court might request the submission
of post-hearing briefs or proposed findings of fact and conclusions of law. The Court will establish
a schedule of these submissions after the suppression hearing.
D. Voir Dire
In criminal cases, Judge Gallagher will conduct voir dire, based in part, on questions
submitted by counsel. After voir dire is concluded, the Court will permit counsel to suggest
follow-up questions. Counsel should submit proposed voir dire questions in writing seven days
before the trial date.
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E. Trial Memoranda
At least seven days prior to the trial date, the Government must file a pre-trial memorandum
setting forth the essential elements of the offense(s), the facts that it intends to present, the identity
of each witness it intends to call, a statement of the substance of each witness’s testimony, and any
legal issues. The defendant is not required to file a pre-trial memorandum but may do so on the
same schedule as the Government.
F. Proposed Jury Instructions and Verdict Forms
The Court will generally require the parties to submit a joint proposed set of jury
instructions and verdict forms. The Court’s pretrial order will detail when the parties should
submit their proposed jury instructions. Jury instructions and verdict forms should be submitted
to the deputy clerk as Microsoft Word files. Counsel’s submission must indicate which
instructions and forms have been agreed upon and which remain contested.
Insofar as the parties disagree on any proposed jury instruction, the joint submission should
contain a concise statement that identifies each party’s position on the instruction, the reasons
supporting the party’s position, and citation to the best authorities supporting each party’s position.
These statements should be no longer than a few sentences for each party. These statements may
be included as footnotes following the contested instruction or as comments attached to particular
portions of the contested instruction.
Insofar as the parties disagree on the verdict form to be used, they may include a brief
statement supporting their positions in their joint submission. Ordinarily, however, the Court will
address disagreements over the verdict form during the final pretrial conference.
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Judge John M. Gallagher
The Court prefers to instruct the jury using the model criminal jury instructions that have
been adopted in the relevant jurisdiction. 3 If a model jury instruction is used, then the party
submitting it shall state whether the proposed instruction is unchanged or modified. If a party
modifies a model instruction, then the party must highlight the additions or deletions and must
attach a comment that describes how the original text has been changed.
Proposed jury instructions must be double-spaced, have one-inch margins and be prepared
in 12-point, Times New Roman font. Citations to authority should be reflected in footnotes or
comments appended to the text and should not appear in the body of the proposed instructions.
G. Guilty Plea Memoranda
The Government must submit a guilty plea memorandum at least seven days prior to the
change of plea hearing. The memorandum shall include the elements of each offense to which the
defendant is pleading guilty and legal citations for the elements, the maximum statutory penalties
for each offense, the terms of any plea agreement, and the factual basis for the plea.
H. Sentencing
Judge Gallagher requires the parties to submit objections to the pre-sentence investigation
report and sentencing memoranda in accordance with the Notice of Sentencing, which will be
issued shortly after the entry of a guilty plea.
Any sentencing motions shall be submitted at least fourteen days prior to the sentencing
hearing, and any responses thereto must be filed at least seven days prior to the sentencing date.
All sentencing memoranda, exclusive of motions, must be filed at least seven days prior to the
sentencing date, and any responses thereto must be filed at least three days prior to the sentencing
3
Model jury instructions for the Third Circuit are available online at
http://www.ca3.uscourts.gov/model-jury-instructions.
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date. Counsel shall serve a copy of all sentencing motions and sentencing memoranda on the U.S.
Probation Office.
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