PRACTICES AND PROCEDURES OF
JUDGE DAVID STEWART CERCONE
I. GENERAL MATTERS
A. Communications with the Court
In an urgent situation, Judge Cercone permits either correspondence or contact by
telephone with his chambers. This includes such items as obtaining a one or two
day extension of time to file a pleading when an unexpected event interferes with
the attorney=s ability to make a timely filing. He has a strong preference, however,
that written communications with the court be in a form of a motion for docketing.
B. Communications with Law Clerks
Judge Cercone permits communications with his law clerks concerning the status
of matters.
C. Telephone Conferences
Judge Cercone will permit attorneys or parties to participate in case management
and status conferences by telephone but only, for the most part, where out-of-town
counsel are involved. Lead trial counsel must physically be present for
conciliation and pretrial settlement conferences.
D. Pro Hac Vice Admissions
Judge Cercone routinely grants pro hac vice admission provided counsel is a
registered user of ECF in the United States District Court for the Western District
of Pennsylvania, has paid the admission fee and has certified that he or she has read
and understands the Local Rules.
E. Comment to the Media
No special policy is in effect and the Rules of Professional Conduct govern.
II. MOTIONS PRACTICE
A. Oral Argument
Oral argument will be scheduled on matters selected by the court, which usually are
factually and legally complex, but not otherwise.
B. Briefs
Judge Cercone requires that briefs be filed with all motions except motions for a
continuance, an extension of time, to compel discovery or to present an uncontested
matter. A response and brief in support thereof are to be filed within fourteen (14)
days of service of a motion - except for a dispositive motion, which shall be filed
within twenty-eight (28) days of service. Except for a reply to (1) a dispositive
motion or (2) a motion for injunctive relief, which is be filed within fourteen (14)
days of service of the response (or as otherwise ordered), a reply brief shall be filed
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only with leave of court. When such leave is granted a reply brief shall be filed
within seven (7) days of service of the response (or as otherwise ordered). Briefs
shall not exceed twenty-five (25) pages without leave of court.
C. Chambers Copies of Motion Papers
Judge Cercone does not accept courtesy copies of motions and papers unless such
copies have been requested from counsel.
D. Scheduling
Responses to motions are governed by Judge Cercone=s Case Management Order.
Judge Cercone appreciates scheduling pressures and will entertain requests for
extensions.
E. Magistrate Judge=s Report and Recommendation
When a Magistrate Judge makes a recommendation on a dispositive motion, it is
Judge Cercone=s practice to review the report and recommendation along with the
parties' submissions in conjunction therewith in de novo fashion.
F. Evidentiary Hearings
In both civil and criminal matters which require an evidentiary hearing on a pretrial
motion, Judge Cercone schedules the hearing in advance of trial and as soon as
practical after all motions and briefs have been filed.
G. In Limine Motions
Motions in limine in civil cases are to be filed in accordance with Judge Cercone's
Trial Management Order and comply with the formatting provisions of his Case
Management Order and the Local Rules. Judge Cercone generally rules on such
motions shortly before or at the time of trial.
III. CIVIL CASES
A. Pretrial Procedures
1. Local Rule 16.1
Judge Cercone has a standard Case Management Order in both jury and
non-jury matters; a copy of each is posted for counsel's review.
2. Pretrial Conferences
An initial case management conference is scheduled approximately 60 days
after counsel for all parties have been identified on the record. After the
initial conference, the Case Management Order and ADR Referral Order
are issued based on discussions with counsel at the conference as to issues
related to ADR, the length of time necessary for discovery, the need for
expert witnesses, and other matters. Additional conferences may take
place on request of counsel. A pretrial settlement conference will be held
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in all cases prior to the trial to discuss settlement and/or final preparations
for trial. Counsel are encouraged to request the assistance of the court on
any matter.
3. Settlement
Judge Cercone requires the parties to appear at a settlement conference with
a principal who has authority to settle the case without further
authorization. Judge Cercone will participate in the settlement of non-jury
cases only with the consent of the parties and counsel. If any party objects
to his participation, he will explore other options with counsel at the
appropriate time. If Judge Cercone feels that discussing a specific amount
of damages would prejudice his ability to remain neutral, he would refrain
from participating in a damages discussion. However, it is very rare that
he does not discuss both the liability and damages aspects of a non-jury case
in the course of settlement.
4. Extensions and Continuances
Judge Cercone has no special rules regarding extensions and continuances.
He prefers requests to be in the form of a motion. He will continue
arguments, hearings and conferences if circumstances require.
B. Discovery Matters
1. Length of Discovery Period and Extensions
Judge Cercone normally grants a 150 day deadline for discovery, unless
circumstances warrant a longer period at the outset.
2. Expert Witnesses
Judge Cercone has no specific policy with respect to discovery depositions
of expert witnesses other than compliance with the Case Management
Order and the Federal Rules of Civil Procedure.
3. Stay of Discovery
Judge Cercone=s general policy is not to grant requests for a stay of
discovery during the pendency of a dispositive motion unless the grounds
for a stay are Aobvious.@ His preference is to have the parties to move
forward with developing the substance of a case. He will, however,
entertain motions to stay.
5. Limitations on Discovery
Judge Cercone does not impose any restrictions on the number of
interrogatories or depositions or the use of any other discovery procedure
beyond those established by the Federal Rules of Civil Procedure and the
Local Rules.
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6. Rule 11 Motions - Rule 37 Sanctions
Judge Cercone generally defers ruling on Rule 11 and Rule 37 motions until
the end of a case. Such motions must be briefed; if a party wants sanctions,
the request must be supported with argument and law. Judge Cercone is
hesitant to award attorneys= fees as sanctions.
C. Injunctions and TROs
Judge Cercone=s general practice regarding TROs is that he requires opposing
counsel to be identified and contacted. If circumstances warrant, he will rule ex
parte. However, this is an extremely rare occurrence. Judge Cercone prefers to
set a status conference with counsel as soon as practical to consider how best to
proceed in the particular case. After ruling or otherwise resolving any need for
status quo relief, he will schedule a preliminary injunction hearing promptly or as
otherwise requested by all counsel. If injunctive relief is sought, it will be given
accelerated treatment only if the particular case appears to warrant it.
D. Trial Procedures
1. Scheduling of Cases
In criminal cases, Judge Cercone sets a specific date for trial. In civil
cases, Judge Cercone also is inclined to assign a specific Afirm@ date for the
beginning of each trial. This date will be assigned after a final pretrial
settlement conference has been held. Depending on the Court=s schedule,
he may also assign a Aback-up@ date, which will be an earlier date. Counsel
will be kept apprised of the likelihood of the back-up date becoming the
actual firm date. If he has to postpone a civil case because of a criminal
trial, or for other reasons, he will try to reschedule it at the earliest practical
date.
Judge Cercone generally will not consider other obligations of counsel and
witnesses with respect to the Afirm@ date because it will be scheduled
sufficiently in advance; he is, however, more flexible with respect to the
Aback-up@ date. He will consider rescheduling to accommodate an expert
witness if there is good cause for the request.
2. Trial Hours/Days
Judge Cercone generally conducts jury trials on Monday through Friday
from 9:00 a.m. to 4:30 p.m., with an hour lunch break and a 15 minute
recess in the morning and afternoon. Bench trials are conducted pursuant
to a very similar daily schedule.
3. Trial Briefs
Judge Cercone does not require trial briefs in jury cases. If a trial brief is
submitted, the page limit should be in accordance with the Case
Management Order limitation of 25 pages absent leave of court. In
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non-jury cases trial briefs must be submitted in accordance with the Case
Management Order.
4. Voir Dire
Judge Cercone conducts voir dire in both civil and criminal cases with the
assistance of his law clerks and deputy clerk. General questions will be
asked of the venire panel as a whole; specific individual inquiry with
prospective jurors will then be undertaken as warranted. Counsel are
permitted to augment the standard voir dire questions set forth in the Local
Rules by submitting proposed questions which will be ruled upon or
otherwise considered in formulating the general questions to be asked of the
panel. The due date for proposed voir dire questions is set by the Trial
Scheduling Order.
5. Note Taking by Jurors
Judge Cercone generally does not permit jurors to take notes.
6. Side Bars
Judge Cercone permits side bar conferences. He has no special rules for
when a side bar conference is appropriate.
7. Examination of Witnesses Out of Sequence
Judge Cercone is flexible and attempts to work with counsel in the sequence
of calling witnesses.
8. Opening Statements and Summations
Judge Cercone does not have a set rule that limits the amount of time for
opening statements. Nevertheless, he usually asks for counsel's estimation
of the length of the statement and will set a limit if he believes that counsel's
estimate is excessive.
9. Examination of Witnesses or Argument by More Than One Attorney
Judge Cercone permits participation by more than one attorney in a trial.
Under special circumstances, he would permit more than one attorney to
question a witness if justified reasons for doing so are present.
10. Examination of Witnesses Beyond Direct and Cross
Judge Cercone permits redirect and recross. He will only permit
examination beyond redirect and recross if it truly is warranted.
11. Videotaped Testimony
Judge Cercone has no special procedures or requirements with respect to
the use/admission of videotape testimony.
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12. Reading of Material into the Record
Judge Cercone requires that counsel or a designated individual read into the
record such things as deposition testimony, stipulations, pleadings or
discovery materials.
13. Exhibits
Judge Cercone=s Trial Management Order addresses the pretrial marking
and exchange of exhibits. He permits counsel to use visual aids during
trial, including opening statements, if all counsel consent. If there is a
question on admissibility of a chart, model or blow-up, he will not permit
the use of the exhibit during opening statements. He generally requires
that an exhibit be offered into evidence before any substantive testimony
regarding the exhibit is developed. He permits the use of exhibits or
demonstrative charts used in trial during closing argument.
14. Directed Verdict Motions
Judge Cercone has no standard requirement regarding directed verdict
motions.
15. Jury Instructions and Verdict Forms
Judge Cercone utilizes a compilation of standard jury instructions. He
requires that proposed jury instructions and verdict forms be submitted
prior to trial in conformance with his Trial Management Order. Judge
Cercone rules upon or otherwise considers proposed jury instructions and
holds an informal charge conference with counsel before closing
arguments. Counsel are directed to enter their formal objections to the
charge after it has been read to the jury.
16. Proposed Findings of Fact and Conclusions of Law
Judge Cercone requires proposed findings of fact and conclusions of law be
submitted in non-jury matters/cases. Initial findings and conclusions are to
be submitted in accordance with his non-jury Case Management Order.
Revised findings and conclusions can be submitted after the transcript is
available. Generally, plaintiff=s are due 30 days after the filing of the
transcript and defendant=s 30 days after plaintiff's are filed.
17. Offers of Proof
Judge Cercone does not impose any restrictions upon requests for offers of
proof during trial so long as the practice is not abused.
18. General Courtroom Rules
Judge Cercone has no special courtroom rules regarding the conduct of
counsel during trial.
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E. Jury Deliberations
1. Written Jury Instructions
Judge Cercone gives the jury a copy of his instructions.
2. Exhibits in the Jury Room
As a general policy, Judge Cercone provides the jury with exhibits except if
the exhibits involve contraband such as drugs or firearms.
3. Jury Request to Read Back Testimony or Replay Tapes During
Deliberations
Judge Cercone generally will permit read-backs or replays after
consultation with counsel, subject to consideration of the volume of the
testimony needed to respond to the jury's inquiry and the amount time that
will be involved.
4. Jury Questions
All questions from the jury must be in writing.
5. Availability of Counsel During Jury Deliberations
Trial counsel need not remain in the courtroom during jury deliberation.
Nevertheless, counsel must be available by telephone and must return to the
courtroom within 15 minutes after being requested to do so.
6. Interviewing the Jury
Judge Cercone has no special rules regarding interviewing jurors
post-verdict. He tells jurors at the end of the case that they are free to
speak about the case if they choose to do so, but should not disclose
individual ballots.
F. General
1. Special Types of Cases
Judge Cercone uses a standard social security case order. He requires the
filing of a RICO statement in RICO cases after the initial status conference
and motions to certify a class in class actions.
2. Patent Cases
Judge Cercone has a Case Management Order for Patent Cases which is
modeled on and follows the scheduling deadlines recommended in the
Local Patent Rules. A copy of that Case Management Order also is posted
for counsel's review.
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IV. CRIMINAL CASES
A. Motions
Judge Cercone considers requests for extensions on a case-by-case basis. He
requires language in any proposed order that effectively excludes time for purposes
of the Speedy Trial Act.
B. Pretrial Conferences
Judge Cercone does not generally conduct Aformal@ pretrial conferences in criminal
cases, but often will conduct one or more informal conferences with counsel prior
to trial to deal with schedules, coordination with essential witnesses, and the like.
C. Guilty Pleas
Judge Cercone has no special rules regarding guilty pleas. He has no deadlines for
accepting/rejecting plea bargains. Judge Cercone has a written format which he
generally follows for the guilty plea colloquy, a copy of which is posted for
counsel's review.
D. Voir Dire
Judge Cercone conducts voir dire in criminal cases with the assistance of his law
clerks and deputy clerk. General questions will be asked of the venire panel as a
whole; specific individual inquiry with prospective jurors will then be undertaken
as warranted. Counsel are permitted to augment the standard voir dire questions
set forth in the Local Rules by submitting proposed questions which will be ruled
upon or otherwise considered in formulating the general questions to be asked of
the panel. The due date for proposed voir dire questions is set by the Trial
Scheduling Order.
E. Trial
In multi-defendant cases, Judge Cercone permits all counsel to examine each
witness. However, he will insist that defense counsel not duplicate areas
previously covered by other defense counsel.
If the parties request sequestration of witnesses, Judge Cercone grants the request.
Judge Cercone permits the government to use transcripts of tape recorded
conversations. However, he charges the jury that the evidence is the tape recorded
conversations, not the transcript. He also charges that if what the jury reads on the
transcript differs from what they heard on the tapes, the tape controls.
Defense counsel is permitted to determine when to make an opening statement.
Judge Cercone does not permit the use of special interrogatories in a criminal case.
Apprendi requirements will be charged as an element of the offense.
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Judge Cercone has no set rule as to when and how he prefers any waiver of the
defendant=s rights be placed on the record.
F. Sentencing Memoranda
Judge Cercone permits the filing of a sentencing memorandum, but it is not
required. He has no set time as to when the sentencing memorandum must be filed
other than submitting it with sufficient time so that it can be considered before the
time of sentencing.
G. Sentencing Conference
Judge Cercone does not hold a sentencing conference regarding issues under the
Sentencing Guidelines prior to the actual imposition of sentence. When
necessary, he issues an order setting forth tentative finds and ruling on objections to
guideline computations.
H. Other General Practices and Procedures
Judge Cercone will include recommendations to the Bureau of Prisons in the
judgment order if deemed appropriate.
Judge Cercone=s general policy is to encourage the government to disclose Jencks
Act material at least five (5) business days prior to the commencement of trial.
Judge Cercone requires the filing of a formal motion for leave to travel outside the
Western District by a defendant, even where the Assistant U. S. Attorney and
Probation Officer consent to the travel.
Judge Cercone approaches conflicts between defense counsel and the defendant on
a case-by-case basis.
V. BANKRUPTCY CASES
N/A
VI. BANKRUPTCY APPEALS (TO THE DISTRICT COURT)
A. Filing and Scheduling
Unless otherwise ordered, briefing on an appeal is to be filed in accordance with
Bankruptcy Rule 8009.
B. Oral Argument
Oral argument generally is not scheduled, but will be considered upon request.
C. Other General Practices/Procedures
Briefing schedules and other deadlines imposed by the Federal Rules of
Bankruptcy Procedure will be modified upon request where appropriate.
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