December, 2016
PRACTICES AND PROCEDURES OF
JUDGE MARK R. HORNAK
I. GENERAL MATTERS
A. Communications with the Court
Communication with the Court should be in the form of motions (rather than
letters to Chambers), accompanied by a proposed order specifying the relief
requested. In an emergency situation, or in situations involving agreed-upon
requests for a short extension of a filing deadline, counsel should telephone
Chambers. The Court should not be copied on correspondence between counsel. It
is the Court’s practice to post on the ECF docket any case-related correspondence
that it receives.
B. Communications with Law Clerks and Other Staff
Communications with law clerks and the Courtroom Deputy Clerk concerning the
administration, not the merits, of a case, or to request a status conference, are
permissible and encouraged. Such inquiries include those pertaining to the status
of any pending matter. Counsel must state that any communication is with the
knowledge and concurrence of all parties.
C. Filing and Service on CM/ECF
Counsel (not the Court) is responsible for the filing of all pleadings, documents or
any other material provided to the Court and/or the Clerk and for service upon
opposing counsel or pro se parties. The Court is not responsible for filing and/or
service of pleadings, documents or any other material of the parties. All filings
must be made on the District’s CM/ECF electronic filing system, unless otherwise
permitted or directed by the Local Rules of Court. For guidelines and information
on CM/ECF, and how to become a registered user of the system, please refer to
www.pawd.uscourts.gov and click on the CM/ECF Electronic Filing tab (on
bottom left side of webpage). The Court may require any pro se litigant to become
a registered CM/ECF user.
D. ADR
The Court follows the ADR Policies and Procedures available on the Court’s
website (www.pawd.uscourts.gov). For cause shown specific to a given case, the
Court will adjust the ADR timeline and procedures to “fit” the specific case.
E. Objections/Placing Proceedings on the Record
If counsel at any time has an objection to any procedure, ruling or other action of
the Court, counsel should make an immediate objection by written motion or
otherwise on the record at the earliest practicable time. If no court reporter is
present and counsel has an objection(s), or otherwise desires the proceeding be on
the record for any reason, counsel has the right to and should request a court
reporter to be present and thereafter place the objection(s) or proceedings on the
record. Counsel may request at any time that any proceeding or matter be placed
on the record. ECF filings and Court proceedings will not be “sealed” except by
Order of the Court for good cause shown in conformity with applicable law. See
Section II(I), below.
F. Telephone Conferences
Requests for attorneys and parties to participate in conferences by telephone
(including to resolve case management problems) will be permitted, and are
usually the norm. However, unless otherwise ordered by the Court, settlement
conferences, final pretrial conferences and oral arguments will not ordinarily be
conducted by telephone. For specifically noticed settlement conferences, both
lead trial counsel and parties are expected to appear in person, along with any
insurance representative. This Court will schedule and conduct a status conference
(telephonic or in person) at anytime if requested by counsel for the parties.
Counsel should confer on their agenda, and contact the Court to set it up.
When a telephone conference is requested, counsel shall provide the Court with
direct contact phone numbers by 4:00 p.m. the day before the conference, and
coordinate arrangements in consultation with Chambers. If no contact is made, the
Court will use the number listed on the docket. Counsel must make sure that their
contact information is kept current on the docket. The Court may direct the use of
its AT&T conference number.
G. Pro Hac Vice Admissions
Motions for pro hac vice admissions should be done by filing a brief written
motion consistent with the Local Rules. The motion should include what court(s)
the requesting attorney is admitted to, that they are in good standing in all courts,
and a certification indicating they are a registered user of the Western District
CM/ECF System.
H. Comments to the Media
Counsel are expected to adhere to the Rules of Professional Conduct in all
dealings, including their dealings with the media as they relate to any a pending
matter.
I. Amendment of these Practices and Procedures
The Court’s Practices and Procedures are available online and will be updated
periodically. Counsel is responsible for keeping aware of any such changes.
J. Consultation by Counsel/Attendance of Necessary Counsel
All counsel are expected to confer with one another, in person or by telephone
(not email), prior to any conference with the Court to review any issue which may
be raised by counsel at such conference and to provide to one another their
respective positions (and factual/legal authority) on all such matters. No counsel
should be surprised at any conference by the position taken by any opposing party
or the legal or factual basis for that position. All parties (other than those
proceeding pro se) shall be represented at any conference by counsel who is a
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member of the Bar of this Court (or who has been or will be admitted specially),
has entered an appearance, and is sufficiently familiar with all legal and factual
matters involved in the action (and has reviewed them with their client) so as to
allow counsel to enter into appropriate stipulations and to meaningfully and fully
participate in the proceedings. Ordinarily, this means lead trial counsel. At any
conference, counsel shall be prepared to discuss in detail and argue any pending
motions, and to discuss settlement.
II. MOTIONS PRACTICE
A. Oral Argument
The Court will often schedule oral argument for any pending motion which, if
granted, would dispose of a claim or defense in whole or in part, any motion for
sanctions, any motion for disqualification of counsel, and any successive motion
for modification of the pretrial schedule. Requests by any party for oral argument
of any matter will be considered on a case-by-case basis. The Court often rules on
the record at the conclusion of oral arguments.
B. Briefs
See attached Order on Motions Practice.
C. Chamber Copies of Motion Papers
See attached Order and Procedures on Motions Practice.
D. Responses to Motions – Scheduling
See attached Order and Procedures on Motions Practice.
E. Magistrate Judges’ Reports and Recommendations
Reports and Recommendations to which objections have been filed will usually
not be decided until a response is filed by the non-objecting party (or opposite
party if both object), unless no objections are filed in a timely manner, or the
Court concludes that the objections are without merit. Briefs in support of or in
response to Objections not in excess of fifteen (15) pages are permitted. If no
Objections have been timely filed, a decision will be made solely on the basis
of the Report and Recommendation and the previously filed briefs.
F. Evidentiary Hearings
Hearings necessitated by pretrial or other motions will be held as ordered by the
Court. Any party whose motion relies in any part on a contested factual issue
should be prepared to offer evidence at any hearing or argument on the motion.
G. Motions In Limine/Motions
Deadlines for filing motions in limine and Daubert motions, with their respective
supporting briefs and proposed orders of court, will be set forth in the pretrial or
post-discovery scheduling orders. Unless there is a good reason not to do so,
motions in limine will be ruled upon in advance of trial and usually at the pretrial
conference.
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H. Motions For Leave to Amended Pleadings
Parties should comply with Third Circuit precedent and attach a copy of the draft
amended pleading to any motion to amend (showing proposed changes in
“redline" format), and the motions should state the position of all other parties to
the motion. Counsel shall also set forth why such amendment is supported by
new law or newly discovered facts.
I. Motions to Seal
All motions to seal any document or proceeding must set forth the specific factual
and legal basis and necessity for sealing under prevailing law. Any Order sealing
any matter is subject to being vacated upon the motions of any party, any
interested person, or by the Court on its own motion. Absent exceptional
circumstances, any proposed Order must include this language: “This Order may
be vacated and sealing lifted for cause shown upon the motion of any party or
other person with a recognized interest, or after due notice by the Court upon the
Court’s own motion.” The parties are reminded that all proceedings in federal
court are presumptively open to the public, including those in which “sealed”
material may be discussed.
III. CIVIL CASES
A. Pretrial Procedures
1. Local Rule 16.1
The Court utilizes a standard form case management order based on L.R.
16.1. Other than the requirements of L.R. 16.1, no additional items
are included in the order. The standard form Case Management Order is
attached.
2. Initial Case Management Conference
An initial case management conference is ordinarily scheduled within
thirty (30) days of the filing of a responsive pleading or motion under
Fed.R.Civ.P. 12, if not sooner. Lead trial counsel are required to
participate in the conference and shall obtain full settlement authority
prior to the conference. Party and insurance claims representatives shall
be available by telephone for the duration of the conference. The Court
will ordinarily conduct this conference by telephone if requested by any
counsel (or on its own directive), especially where doing so saves time and
money.
After the initial case management conference, the Case Management Order
is issued after discussion with lead trial counsel at the initial conference as
to the length of time necessary for discovery, handling of expert witnesses
and other matters. Settlement and ADR options also will be discussed.
Ordinarily, fact discovery will extend for 150 days, absent unusual
circumstances.
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Additional conferences may take place on request of counsel or at the
direction of the Court and in all cases prior to the trial date to discuss
pretrial matters, settlement and/or trial. Trial counsel are encouraged to
request the assistance of the Court on any matter. Conferences to handle
routine matters are most often conducted by telephone.
3. Settlement Conferences
The Court entertains requests for settlement conferences, and/or sets them
at its own discretion. Unless otherwise ordered, at least five (5) working
days prior to the conference, the parties should submit brief letters to the
Court detailing the relative strengths and weaknesses of their case, as well
as settlement positions. The letters will not be filed nor disclosed to
opposing counsel. The Court rarely holds such conferences in non-jury
casestrials, even with the consent of all parties.
Lead trial counsel and the client representative(s) with full settlement
authority shall attend all settlement conferences, in person. In cases
where there is insurance coverage (or the possibility of insurance coverage
(even if there is a coverage dispute or reservation of rights), a
representative(s) from the insurance carrier(s) shall attend the settlement
conference. Carrier and client representative(s) must have full and
unilateral settlement authority on behalf of the carrier(s) to the full extent
of the insurance policy(ies). "Full settlement authority" means that all
persons necessary to make any settlement proposal or decision, or to
accept or reject any settlement offer or demand, are in actual, physical
attendance. The Court routinely requires the exchange of updated/current
settlement demands/offers immediately prior to the settlement conference.
Consistent with the initial status conference procedure, at any settlement
conference counsel shall be prepared to discuss and agree to ADR options,
including follow-up ADR proceedings.
At all settlement conferences, trial counsel shall be prepared to discuss any
anticipated dispositive motions as well as counsels’ assessment of the
amount of time necessary to try the case. No participant may leave the
conference unless and until excused by the Court.
4. Extensions and Continuances
The Court will grant extensions for the filing of motions or briefs where
good cause is shown for doing so. Requests for extensions of the discovery
period will routinely be granted (at least as to the first such request) so long
as the motion sets forth the specific discovery conducted to date and the
specific discovery which will be conducted during the extension. Requests
for extensions should be made by a short written motion (accompanied by
a proposed order), and the motion must include a statement regarding all
opposing counsel’s position on an extension and a list of any prior requests
for extensions. All such requests should be made at least five (5) business
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days in advance of the existing deadline. Parties opposing short
extensions must be prepared to articulate the actual prejudice which would
occur if the extension were granted.
Specific restrictions may be placed on further extensions when the case is
not moving.
Extension for dates regarding appearances before the Court, conferences,
or oral arguments will be granted when the Court is given sufficient notice
so as to not complicate the Court’s calendar or prejudice other parties.
The Court will do just about anything reasonable to accommodate trial
counsel’s family vacation/special event needs, if given plenty of advance
notice.
B. Discovery Matters
1. Length of Discovery Period and Extensions
Generally 150 days is permitted for discovery, unless the parties indicate
that a different time frame is appropriate and the Court approves that time
frame. Extensions of time for discovery are permitted for good cause
shown, provided that the case has been advanced by counsel during the
initial period of discovery. The Court will, upon the request of the parties
or its own motion, consider phased discovery in appropriate cases.
2. Expert Witnesses
Discovery depositions and depositions for use at trial of expert witnesses are
nearly always permitted. Expert witness discovery is reciprocal, and the
Court encourages the use of video deposition testimony.
3. Deposition/Discovery Disputes
For discovery disputes that arise during a deposition, the attorneys together
may contact the Court by telephone to determine whether the Court wishes
to resolve the matter at that time. Counsel must contact the Court to set a
discovery conference before filing any motion to compel or for sanctions,
or for a non-consensual protective order. Failure to do so may result in the
deferral of a ruling, or denial of such motion.
4. Stay of Discovery
The filing of a dispositive motion does not automatically stay discovery. A
stay may be sought by motion but will ordinarily be granted only for good
cause shown. In some cases, discovery may be limited to those facts in
support of or opposition to the dispositive motion (e.g., a motion to dismiss
for lack of personal jurisdiction).
5. Limitations on Discovery
No standard restrictions on the number of interrogatories or length of
depositions are employed beyond those set forth in the Federal Rules of
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Civil Procedure. However, the parties are expected to use their common
sense and discretion in discovery matters, and the Court will entertain
motions when the request propounded or response is unreasonable.
6. Rule 11 & Rule 37 Motions/Sanctions
The Court expects counsel to avoid the necessity of filing Rule 11 and/or
Rule 37 motions through the exercise of good professional judgment,
common courtesy and civility. However, counsel fees and costs may be
awarded in appropriate circumstances. Oral argument is ordinarily
scheduled as to all sanctions motions.
C. Injunctions and Temporary Restraining Orders
Where a party seeks an injunction and/or a temporary restraining order situation,
the moving party must establish and demonstrate that serious efforts were made to
contact the opposing party or its counsel prior to seeking relief, which must be
supported by filing an F. R. Civ. P. 65 affidavit regarding the same. Otherwise,
the Court will not hold a hearing on the matter or issue a temporary restraining
order. In circumstances where a bond or deposit of security may be required if
relief is granted, the moving party is expected to have that arranged at the time the
motion is filed.
The papers in support of a motion for a temporary restraining order or
preliminary injunction should include affidavit(s) in support of the motion with all
relevant documents attached to the affidavit(s). Any response to the motion for
temporary restraining order or preliminary injunction should be accompanied by
affidavits(s). Both motions and responses must attach proposed findings of fact
and conclusions of law.
All requests for injunctions and temporary restraining orders are handled as
expeditiously as possible and the Court will, in its discretion and after review of
the pleadings and affidavit(s), determine whether or not to conduct a hearing and,
if so, the scope of the testimony necessary to resolve the matter. Counsel filing
any such motion should be immediately prepared to proceed with argument, and
testimony from supporting witnesses.
D. Patent Cases
All patent cases will follow the Western District of Pennsylvania’s Local Rules of
Practice for Patent Cases.
E. Trial/Hearing Courtroom Procedures (all cases)
1. Scheduling of Cases
At the initial case management conference, a presumptive date for trial
generally will be discussed. Vacation schedules, family schedule
conflicts, and personal and professional schedule conflicts of trial counsel
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are ordinarily accommodated when counsel has notified the Court of any
such conflict as soon as the conflict becomes known.
2. Final Pretrial Conference
At the final pretrial conference, witness lists, exhibits, motions in limine,
jury instructions, voir dire, verdict slips, and any other pretrial matters will
be discussed in detail, and generally ruled upon at the conference. As
such, counsel should be prepared to make all related arguments at that
time. The Court will usually permit/direct the deposition of necessary
experts or unavailable witnesses for use at trial.
In addition, at the pretrial conference in cases where it is appropriate, the
Court may inform the parties of the amount of time each party will be
allotted to present testimony and evidence at trial.
Unless excused by the Court, all participating trial counsel, the principal
client representative/client in civil matters, and the responsible insurance
representative (all with full settlement authority) must attend the final
pretrial conference in person.
3. Trial Hours/Days
Except as is otherwise necessary to accommodate jurors, the Court is in
trial Monday through Friday, 9:00 a.m. to 4:30 p.m. with breaks when
appropriate, unless the jury requests a different schedule. On trial days,
counsel must be available at 8:30 a.m. (or earlier if necessary to ensure that
trial commences on time) to meet with the Court concerning scheduling,
anticipated trial issues, and to obtain advance rulings on evidentiary or
other issues. The Court usually takes 15 minute breaks in both the
morning and afternoon, and a 75 minute lunch break.
4. Trial Briefs
Trial briefs are appreciated. There are no filing date restrictions, but the
briefs are more useful and more likely to be given serious consideration if
filed at least seven (7) days before trial. Trial briefs should not exceed
fifteen (15) pages.
In bench trials, counsel will be required to submit proposed findings of fact
and conclusions of law.
5. Voir Dire
The Court conducts voir dire in civil and criminal cases, and may permit a
short introductory statement by counsel for each party to the venire panel.
The Court often selects the jury on the Wednesday of the week prior to
trial.
Unless otherwise ordered by pretrial order, counsel are permitted to
supplement the standard voir dire questions. Counsel shall attempt to
obtain consent of opposing counsel prior to submission of any such
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supplemental voir dire. Those supplemental voir dire questions to which
counsel have agreed upon shall so state. If counsel behaves, the Court will
usually allow counsel to ask follow-up questions during individual voir
dire questioning.
6. Note Taking and Questions by Jurors
Jurors are permitted to take notes and are provided with notebook paper to
do so. The Court is open to requests from counsel to allow jurors to be
permitted to submit questions in writing to the Court, which will be
reviewed by the Court and counsel before being propounded to the
witness.
7. Side Bars
Counsel should be considerate of the use of jurors’ time. Consequently,
except where essential to avoid prejudice to the trial process, side bars are
generally disfavored because they disrupt the presentation of evidence, can
waste the jury’s time and unduly extend the length of the trial. Counsel
will meet with the Court each day at 8:30 a.m. (or earlier if necessary to
ensure that trial commences on time) to raise points of evidence or other
issues that would otherwise necessitate a side bar conference.
8. Examination of Witnesses Out of Sequence
Where appropriate, witnesses may be examined out of sequence upon
request of a party. Witnesses may be examined in any order to which
counsel agrees. For example, counsel could agree that expert witnesses
for each side will testify in succession. The Court prefers that all
testimony from a witness be drawn out in one sitting, as opposed to a
witness being recalled.
9. Opening and Closing Statements
Ordinarily, up to thirty (30) minutes is allotted to each side for opening and
for closing statements, depending on the complexity of the case. It is the
Court's belief that shorter is most often better. Counsel may use exhibits
or demonstratives if agreed to by all parties, or authorized by the Court, in
advance.
10. Time Limits for Examination of Witnesses
Ordinarily, the Court will not set fixed time limits for the examination of
witnesses or presentation of a party’s case. However, where appropriate,
the Court may set time limits for the examination of witnesses and
admission of evidence during trial. Such time limits include each party’s
time spent on both direct and cross examinations. However, any time limit
imposed does not include opening statements or closing arguments. In
such situations, the Court will keep track of each party’s use of time
during the trial.
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11. Examination of Witnesses or Argument by More Than One Attorney
Except in unusual circumstances with advance leave of Court, co-counsel
are not permitted to split the examination of a witness. However, the Court
will consider relaxing this rule if dual examinations/argument will
facilitate a newer lawyer actively participating in trial, is not prejudicial to
the opposing party, will not unduly prolong the proceedings, and does not
result in intentional “double dipping.”
12. Examination of Witnesses Beyond Direct and Cross
Re-direct (and often re-cross) examination is usually ordinarily permitted;
further examination is not permitted without leave of Court.
13. Videotaped Testimony
The Court has no special procedures regarding videotaped testimony
except those set out in the Local Rules.
14. Reading of Material into the Record
Counsel can devise their own methodology for reading material (including
stipulations) into the record, provided opposing counsel agrees.
15. Exhibits
By a date set forth in the Pretrial Order, counsel shall file on CM/ECF a
Joint Exhibit List Chart (with columns) setting forth all
government/plaintiff and defendant trial exhibits, by exhibit number/letter,
date, author, type of document, objection as to authenticity (if any) with
response, and objection as to admissibility with response. In addition, a
copy of each exhibit shall be delivered to Chambers in a binder. The
actual copy of the exhibits should not be filed on CM/ECF, only the Joint
Exhibit List Chart shall be filed on CM/ECF. The hand-delivered Joint
Exhibit List Chart with a copy of the exhibits in a standard black
presentation, 3-ring binder(s) (not larger than three (3) inches) shall be
delivered to Chambers by the date set forth in the Pretrial Order.
One paper copy of each exhibit displayed during trial is to be provided to
the Courtroom Deputy Clerk on the same day of its display. In order for
the Jurors’ Exhibit Binders to be complete when deliberations begin,
counsel must insure that a copy of each exhibit displayed and admitted has
been provided to Court by the last day of trial. Counsel must provide the
Courtroom Deputy Clerk with a binder(s) that will hold the paper copies of
the exhibits to be submitted to the jury at the close of trial, and this will
constitute the original record for purposes of appeal, if any.
Voluminous data must be presented by summary exhibits pursuant to Fed.
R. Evid. 1006, and voluminous exhibits shall be redacted to eliminate
irrelevant material which shall remain available for examination by
opposing counsel. Where copies of documents are offered, the originals
shall be available for examination, unless waived by stipulation. All
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exhibits will be presented using the Court’s electronic presentation system.
All trial counsel must know how to use it.
Counsel are not to take time during trial to exchange exhibits with each
other as this will have been accomplished pretrial. With advance notice to
all parties and approval of the Court, visual aids and exhibits may be used
during opening statements. Exhibits need not be offered into evidence in
numeric/alphabetical order. Plaintiffs use numbers, defendants use letters.
16. Juror Notebooks
The Court will provide juror notebooks. The notes will be retained by the
Courtroom Deputy Clerk during trial and deliberations and will be
destroyed once a verdict has been rendered.
17. Motions for Judgment As a Matter of Law
The Court’s only requirements for such motions are set forth in the
applicable Federal Rules of Civil Procedure.
18. Jury Instructions
The parties shall meet to agree on joint proposed jury instructions. After
meeting, the parties together shall file one combined set of proposed
instructions, along with a CD/flash drive containing the instructions in
Word format. The filed set of instructions shall include both the agreed
upon instructions and the proposed instructions to which the parties have
not agreed. Each agreed upon instruction shall include the following
notation at the bottom of each instruction: “This proposed instruction is
agreed upon by the parties.” Each disputed instruction shall state which
party is advancing it, along with the legal authority relied on by each party
in support of and in opposition to each such instruction. Proposed
instructions as to a given issue by different parties shall be grouped
together.
Generally, a charging conference will be held at which time a ruling will be
made on each point for charge. Counsel are required to state objections to
the proposed charge at the charging conference and to supply any proposed
alternate language, together with case authority.
The Court will not accept separate proposed jury instructions from the
parties.
The Court generally tries to rule on jury instructions at or prior to the final
pretrial conference.
19. Proposed Findings of Fact and Conclusions of Law in Bench
Proceedings
Except where a shorter period is set by the Court (e.g., TRO and
preliminary injunction matters), within fourteen (14) days of the
conclusion of a hearing or bench trial (unless otherwise ordered), Plaintiff
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shall file (and serve a courtesy copy on a CD/flash drive formatted in
Word format) consecutively numbered proposed findings of fact and
conclusions of law. Plaintiff’s proposed findings of fact shall address each
contested issue of fact remaining and shall also include any facts
stipulated to by the parties. Each proposed finding of fact shall be
supported by clear and explicit reference to the record. Each proposed
conclusion of law shall be supported by citation to appropriate authority.
With the proposed findings of fact and conclusions of law, Plaintiff also
shall file and serve a brief in support of judgment, integrating the proposed
findings of fact with the proposed conclusions of law and demonstrating
why the relief requested should be granted. The supporting brief should
not exceed twenty (20) pages.
Except where a shorter period is otherwise set by the Court (e.g., TRO and
preliminary injunction matters), within fourteen (14) days after service of
Plaintiff’s proposed findings of fact and conclusions of law (unless ordered
otherwise), Defendant shall file (and serve a courtesy copy on CD/flash
drive formatted in Word format) consecutively numbered counter findings
of fact and consecutively numbered counter conclusions of law,
corresponding to the same numbered findings of fact and conclusions of
law proposed by Plaintiff. Each proposed counter finding shall be
supported by clear and explicit reference to the record. Each proposed
counter conclusion shall be supported by citation to appropriate authority.
With the proposed counter findings and counter conclusions, Defendant
also shall file and serve a brief in support of judgment integrating the
counter proposed findings of fact with the counter proposed conclusions of
law and demonstrating why the relief requested by defendant should be
granted. The supporting brief shall not exceed twenty (20) pages.
20. Offers of Proof
There should be no requests for offers of proof during trial as the parties
will have discussed the witnesses at the 8:30 a.m. conference with the
Court.
21. General Courtroom Rules
Counsel can conduct the trial in any manner they see fit, provided it is done
with courtesy and civility, and complies with the applicable Rules of
Procedure and Evidence. Counsel may move around the Courtroom, so
long as they do not invade any person’s personal space or block the view
of any trial participant. Counsel abusing this prerogative are subject to
being “grounded” by the Court.
Those at counsel/support tables may have soft drinks in closed containers
with a mechanically-closing lid only (no flimsy “take out” lids). Those
requiring the use of laptops, computer systems, iPads, etc. for trial
presentation must make advance arrangements via the Courtroom Deputy
Clerk.
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22. Use of Courtroom Technology
The parties are required to use trial presentation technology, courtroom
technology, and trial exhibit summaries (pursuant to Rule 1006 of the
Federal Rules of Evidence), to the fullest extent possible in all cases.
Should the parties require training or other information on use of the
courtroom technology, the parties may contact Sean Fox, of the
Information Technology Department, at (412) 208-7468. Unsecured,
wireless internet access is available in the Courtroom. Counsel are
expected to make arrangements to share major AV devices (projectors,
jumbo screens, etc.).
23. Sample Documents
The Court’s website page contains samples of its various forms of jury
instructions and voir dire.
F. Jury Deliberations (all cases)
1. Written Jury Instructions
The jury will be provided with a copy of the jury instructions.
2. Exhibits in the Jury Room
Generally, the jury will be given all admitted exhibits for use in
deliberations.
3. Jury Requests to Read Back Testimony or Replay Tapes During
Deliberations
Requests to read back testimony or replay tapes during deliberations will
ordinarily be denied.
4. Jury Questions During Deliberations/Polling
All written questions submitted by the jury are supplied to counsel.
Counsel and the Court will meet to discuss and hopefully agree on a reply.
In most cases, the jury will then be summoned to the courtroom, where an
oral reply will be read. A written reply is also provided when appropriate.
The Court will poll the jury as a matter of course, and will give counsel
the opportunity to review the verdict form prior to discharging the jury.
5. Availability of Counsel During Jury Deliberations
Trial counsel need not remain in the courtroom area but must be
immediately available by telephone so that they can promptly return to the
courthouse upon being contacted by the Court.
6. Interviewing the Jury
The jury will be told that it is up to them to decide if they choose to be
interviewed. Any such interview must be conducted with courtesy and
respect for the service of jurors.
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IV. BANKRUPTCY APPEALS (TO THE DISTRICT COURT)
A. Filing and Scheduling
The brief for the appellant shall be served and filed within 14 days after entry of
the appeal on the docket pursuant to Bankruptcy Rule 8007; the brief for appellee
shall be served and filed within fourteen (14) days after service of appellant’s
brief. Reply briefs may be filed according to the schedule set forth in Bankruptcy
Rule 8009(a)(3), upon notification to the Court that such reply brief shall be filed.
B. Oral Argument
Oral argument is not generally scheduled but may be granted upon request.
C. Other General Practices/Procedures
Briefing schedules and other deadlines imposed by the Federal Rules of
Bankruptcy Procedure will be modified, where appropriate, on the request of the
party.
V. CRIMINAL CASES
A. Motions for Extensions
The Court considers requests for extensions (including to file pretrial motions) on
a case-by-case basis. All such motions should be filed at least two (2) days before
the expiration of any pending motions schedule. The Court requires language in
any proposed order that effectively excludes extended time for purposes of the
Speedy Trial Act.
B. Pretrial Conferences
The Court will conduct one or more conferences with counsel prior to trial to deal
with schedules, coordination with essential witnesses, and the like.
C. Guilty Pleas
The Court has no special rules regarding guilty pleas, or deadlines for
accepting/rejecting plea agreements. The Court has a format which is generally
followed for the guilty plea colloquy, a copy of which is posted on-line for
counsel’s review.
D. Voir Dire
The Court 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. So long as counsel is behaving, they will be permitted to ask
follow up questions during individual examination of jurors during voir dire.
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E. Trial
In multi-defendant cases, all counsel may examine each witness. However,
defense counsel should not duplicate areas previously covered by other defense
counsel.
If the parties request sequestration of witnesses, the Court grants the request.
The Court usually permits the government to use of transcripts of tape recorded
conversations. The jury will be instructed that the evidence is the tape recorded
conversations, not the transcript, and that if what the jury reads on the transcript
differs from what they heard on the recording, the recording controls.
Defense counsel is permitted to determine when to make an opening statement.
The Court permits the use of special interrogatories in a criminal case if
appropriate
F. Sentencing Memoranda
The Court expects the filing of a sentencing memorandum per its standard
presentence order. That standard order is posted on the Court’s Website, and is
deemed incorporated into these Practices and Procedures. All motions or other
matters regarding calculations of the Advisory Sentencing Guidelines, Departures
or the calculation of Criminal History matters must be raised in the “Position with
Respect to Sentencing Factors.” Those raised for the first time in the Sentencing
Memorandum may be denied as untimely.
G. Sentencing Conference
The Court does not usually hold a sentencing conference regarding issues under
the Sentencing Guidelines prior to the actual imposition of sentence, but will hold
one if requested. The Court usually issues an order setting forth tentative findings
and rulings on sentencing matters several days about one (1) week before
sentencing.
H. Other General Practices and Procedures
1. The Court will include recommendations to the Bureau of Prisons in the
judgment order if appropriate.
2. The Court requires the filing of a motion for leave to travel outside the
Western District by a defendant, and each such motion should state the
position of the Assistant U. S. Attorney and the Probation Officer.
3. Counsel for the United States is responsible for obtaining any writs
necessary for the appearance of persons in custody at any change of plea,
or sentencing proceeding or other proceeding. Further, if the United
States will move for bond revocation at any proceeding, the Assistant U.S.
Attorney must so advise the Court and the defense counsel at least
twenty-four (24) hours before the proceeding.
15
4. Any counsel desiring to have an “in-custody” Defendant appear at any
proceeding in civilian attire must make arrangements in advance with the
Marshal’s Office.
5. Defense counsel shall advise the Court’s Deputy Clerk in plenty of time if
they want an “in-custody” Defendant to attend any proceeding in person
(other than trial or sentencing, or other proceeding as required by Fed. R.
Crim. P. 43(a) or a probation/supervised release revocation hearing, for
which proceedings the Court will notify the Marshal’s Office).
16
December, 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CIVIL PRETRIAL ORDER
AND NOW, this ____ day of ______________, 20___, the Court HEREBY ORDERS as
follows:
A. Final Pretrial Orders:
1. Jury Selection & Trial. Jury selection and trial are set for ______________, 20___
at 9:00 AM, in Courtroom 6A, 6th Floor, United States Courthouse, 700 Grant Street, Pittsburgh,
Pennsylvania.
2. Pretrial Conference(s). A final pretrial conference shall be held on
______________, 20___ at 2:30 PM, in Courtroom 6A, 6th Floor, United States Courthouse, 700
Grant Street, Pittsburgh, Pennsylvania. All parties, party representatives and involved insurance
representatives (each with full settlement authority), along with all lawyers who will participate in the
trial, must be present in person.
3. Exchange of Witness Lists and Exhibits.
a. Plaintiff shall file a pretrial statement on or before ______________, 20___. Plaintiff
shall also file a final list of trial witnesses, listing separately (i) the witnesses it will
call and (ii) the witnesses it may call if needed (other than purely for impeachment).
For each witness listed, Plaintiff shall provide an offer of proof explaining the
substance of the witness’ testimony. The offers of proof shall be no more than one (1)
double-spaced page with twelve (12) point font. Plaintiff’s witness list and offers of
proof shall be due by ______________, 20___.
b. Defendant shall file a pretrial statement on or before ______________, 20___.
Defendant shall also file a final list of trial witnesses, listing separately (i) the witnesses
it will call and (ii) the witnesses it may call if needed (other than purely for
impeachment). For each witness listed, Defendant shall provide an offer of proof
explaining the substance of the witness’ testimony. The offers of proof shall be no
more than one (1) double-spaced page with twelve (12) point font. Defendant’s
witness list and offers of proof shall be due by ______________, 20___.
c. On or before ______________, 20___, counsel shall file on CM/ECF a Joint Exhibit
List Chart (with columns) setting forth all trial exhibits, by exhibit number, date,
author, type of document, objection as to authenticity (if any) with response, and
objection as to admissibility with response. At the same time, a copy of each
exhibit in a binder or notebook, shall be delivered to Chambers. (The actual copy of the
exhibits should not be filed on CM/ECF, only the Joint Exhibit List Chart shall be filed
on CM/ECF). The Joint Exhibit List Chart, with a copy of the exhibits in a binder, shall
be hand-delivered to Chambers by ______________, 20___.
d. All exhibits must be exchanged and marked in advance of trial. One paper copy of
each exhibit displayed during trial is to be provided to the Courtroom Deputy Clerk
following its display. In order for the Jurors’ Exhibit Binder to be complete when
deliberation begins, counsel must have provided one paper copy of each admitted
exhibit by the last day of trial. Counsel must provide the Court with binder(s) that will
hold the paper copies of the exhibits to be submitted to the jury at the close of trial.
e. Voluminous data must be presented by summary exhibits pursuant to Fed.R.Evid. 1006,
and voluminous exhibits shall be redacted to eliminate irrelevant material (which shall
remain available for examination by opposing counsel). Where copies of documents
are offered, the originals shall be available for examination, unless waived by
stipulation.
4. Designation of Discovery Excerpts to be Offered at Trial. The parties shall submit
a designation of excerpts from depositions, interrogatory answers, and responses to requests for
admission to be offered at trial (other than for impeachment) by ______________, 20___.
5. Motions. The parties shall file all motions in limine, including motions and proposed
orders of court under Fed. R. Evid. 104(a) and motions to limit or sever issues, together with supporting
briefs or memoranda of law, by ______________, 20___. Responses shall be filed by
______________, 20___. All briefs supporting or opposing such motions are limited to 10 pages. All
Daubert motions must be filed by ______________, 20___, with responses filed no later than
______________, 20___.
6. Proposed Jury Instructions & Verdict Slips. Counsel shall meet to agree on a joint
verdict slip and a joint set of proposed substantive jury instructions regarding Plaintiff(s)’ claims and
their elements, any defenses and their elements, and any evidentiary or other matters particular or
unique to this case; the parties need not submit “boilerplate” or standard civil jury instructions. After
said meeting, and on or before ______________, 20___, counsel shall file one combined set of
proposed instructions, along with CD/flash drive containing the instructions in Word format. The filed
set of instructions shall include both the agreed upon instructions and the proposed instructions to
which the parties have not agreed. Each agreed upon instruction shall include the following notation
at the bottom of each instruction: “This proposed instruction is agreed upon by the parties.” Non-
agreed upon instructions shall state which party is advancing it, along with the legal authority relied
upon by each party in support of and in opposition to each such instruction. Each instruction to which
the parties have not agreed shall indicate at the bottom of the instruction the name of the party
proffering the instruction. Each instruction to which the parties have not agreed shall indicate at the
bottom the name of the party proffering the instruction. Proposed instructions by different parties
shall be grouped together.
A charging conference will be held, at which time a ruling will be made on each point for
charge, and a copy of the Court’s proposed charge will be supplied to counsel. Counsel are required to
state objections to the proposed charge at the charging conference and to supply the alternate language,
together with case authority. The Court will not accept separate proposed jury instructions from the
parties. The Court generally rules on party-proposed jury instructions at the Final Pretrial Conference.
A joint proposed verdict slip shall be filed by ______________, 20___. If parties, after
meeting in an attempt to agree on a joint verdict slip are unable to agree, the parties shall submit their
respective proposed verdict slips by ______________, 20___.
7. Proposed Voir Dire. Counsel are permitted to supplement the standard questions,
provided that the proposed supplemental voir dire questions are submitted to the Court in writing by
______________, 20___.
8. Joint Stipulations. The parties shall file joint stipulations by ______________,
20___. All possible stipulations shall be made as to:
a. Facts;
b. Issues to be decided;
c. The authenticity and admissibility of exhibits;
d. Expert qualifications and reports;
e. Deposition testimony to be read into the record;
f. A brief statement of the claims and defenses to be read to the jury during voir dire and
to introduce the trial; and
g. Exhibits or other presentation aids to be used in operating statements.
Counsel shall meet at a mutually convenient time and place to produce the joint stipulation in time for
filing as ordered.
B. Trial Procedure
1. Hours. Court is ordinarily in trial session, unless otherwise ordered by the Court, Monday
through Friday, 9:00 a.m. to 4:30 p.m. with breaks where appropriate. All counsel are expected to be in
their seats, and witnesses available, and ready to commence at the appointed times.
2. Exhibits. Because counsel will have previously marked and exchanged all exhibits and
provided a copy to the Court, it will not be necessary during the trial to show exhibits to opposing counsel
prior to using them.
3. Approaching the Witness. It will not be necessary for counsel to request permission to
approach a witness.
4. Opening and Closing Statements. Up to thirty (30) minutes is ordinarily permitted to
each side for opening and for closing statements, depending on the complexity of the case. Counsel may
use exhibits or charts in opening argument, provided that the same have been provided to opposing counsel
beforehand and either agreement was reached or the Court has ruled upon the matter.
5. Side Bar Conferences. The Court believes that counsel should be considerate of the
jurors' time. Consequently, side bar conferences are disfavored unless necessary to avoid prejudice. Such
conferences tend to disrupt the presentation of evidence, can waste the jury's time and unduly extend the
length of the trial. Counsel will meet with the Court at 8:30 a.m. each day (or earlier if necessary to
ensure that trial commences on time) to raise points of evidence or other issues that would otherwise
necessitate a side bar conference. Failure to raise the issue at that time will generally result in a
disposition of the in-court objection in open court. If necessary, counsel and the Court may amplify their
objections and rulings on the record after the jury has been excused for a break, for lunch, or for the day.
In addition, it is expected that counsel will anticipate evidentiary issues requiring lengthy
argument and will take up such matters out of the presence of the jury. The Court will be available at
8:30 a.m. each morning to address such issues. It is the responsibility of counsel to notify other
counsel of the need for such a conference at 8:30 a.m. and all other counsel will be expected to be
present at the appointed time for argument. The Court will not delay the proceedings to respond to last
minute requests for conferences to discuss matters that, in the exercise of reasonable diligence, could
have been heard at the morning conference.
6. Witness List. Prior to the commencement of the trial, counsel shall provide opposing
counsel with a complete witness list, and shall provide opposing counsel throughout the trial with the
actual list of the next day's witnesses by 5:00 p.m. in the order they are expected to be called. The same
procedure will be employed by both sides at the end of each trial day. Counsel should be sure that they
have adequate witnesses to fill the time allotted each day.
7. Note Taking. The jury shall be permitted to take notes.
8. Jury Questions/Jury Deliberations. All written questions submitted by the jury are
supplied to counsel. Counsel and the Court will meet to discuss and hopefully agree on a reply. The jury
is then summoned to the Courtroom in most cases and the oral reply is given to them. A written reply is
provided where appropriate.
9. Jury Instructions. A copy of the jury instructions shall be provided to the jury for use
during its deliberations.
10. Jury Access to Exhibits. Unless otherwise advised by counsel, it will be assumed that all
admitted exhibits will be sent out with the jury.
11. Use of Technology. The parties are required to use trial presentation technology,
courtroom technology, and trial exhibit summaries pursuant to Rule 1006 of the Federal Rules of
Evidence, to the fullest extent possible.
12. Other Procedures. The parties are directed to the Court’s Chambers Rules and
Procedures, available on the Court’s website for additional pretrial and trial procedures.
SO ORDERED this __ day of ___________, 20__.
________________________________________
Mark R. Hornak
United States District Judge
cc: All counsel of record
December, 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE
The above case has been assigned to United States District Judge Mark R. Hornak for all further
proceedings. Pursuant to Local Rule 16.1, an initial case management conference will be conducted to
discuss narrowing of the issues, the extent of pretrial preparation, discovery procedures, the early
disposition of controlling questions of law, the probable extent of provable damages, the possibility of
settlement, alternative dispute resolution options, and any other matters that will contribute to prompt and
fair disposition of the case; and establish a date for the pretrial conference and a date for the
commencement of the trial. Lead trial counsel shall participate in the conference. Lead trial counsel shall
obtain full settlement authority prior to the conference and must be prepared to discuss settlement of the
case and alternative dispute resolution options in detail. All pending motions are subject to argument and
disposition at the conference. Clients and insurance carrier representatives must be available by
telephone. The Conference will be held on _________, 20__ at _____ M, in Room 6170, 6th Floor,
United States Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania. Any counsel may participate by
telephone upon request made at least forty-eight (48) hours in advance.
As required by Rule 26(f) of the Federal Rules of Civil Procedure the parties must, as soon as
practicable, Aconfer to consider the nature and basis of their claims and defenses and the possibilities for a
prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule
26(a)(1), and to develop a proposed discovery plan[.]@ See Fed.R.Civ.P. 26(f). The Aconfer@ meeting
must occur in person or by telephone (not via e-mail exchanges), and all trial counsel shall personally
participate.
On or before ________, 20__, and pursuant to Rule 26(f), and as required by Local Rule 16.1.1,
the attorneys of record and all unrepresented parties that have appeared in this case are jointly responsible
for submitting to the Court the following two (2) documents:
(a) A written report required by Fed.R.Civ.P. 26(f), in the format
set forth in Appendix LCvR 16.1 A (current form) to the
Local Rule 16.1.1B
(b) A stipulation selecting an ADR process (pursuant to Local
Rule 16.2) (current form). If counsel believes that ADR
should occur at a time other than within sixty (60) days of the
Initial Case Management Conference, they are welcome to
state that in the Rule 26(f) Report, setting out their reasons,
and proposed timing for the ADR session.
(c) The Court will ordinarily include the following language in its
Initial Case Management Order (or in the alternative, enter
an Order in the form set forth at Appendix LCvR 16.1.D of
the Local Rules) unless a party objects: “Pursuant to Fed. R.
Evid. 502(d), no inadvertent disclosure connected to this
litigation shall act as a waiver in any proceeding of any
otherwise applicable privilege or protection unless so ordered
by this Court.”
Documents (a) & (b) may be downloaded from the Court=s website at www.pawd.uscourts.gov,
Aforms.@
SO ORDERED this __ day of ___________, 20__.
_______________________________________
Mark R. Hornak
United States District Judge
cc: All counsel of record
December, 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
INITIAL CASE MANAGEMENT ORDER
AND NOW, this ____ day of ___________, 20__, an initial case management conference having
been held pursuant to Federal Rule of Civil Procedure 16 on ___________, 20__, it is hereby ORDERED
that the parties comply with the following:
1. Local Rule 16.1: This civil action is governed by Local Rule of Civil Procedure 16.1 –
Pretrial Procedures.
2. Settlement Negotiations: Counsel for the parties shall confer with their clients and any
involved insurance carriers before all case management, status or pretrial conferences to obtain authority
to participate in settlement negotiations conducted by the Court. A client’s representative/insurance
carrier representative shall be available by phone for any such conference. If a party anticipates
potentially relying upon an insurance carrier to satisfy all or part of any settlement or award, a
representative of the insurance carrier(s) who possesses full, unilateral settlement authority shall be
available to participate in all case management conferences, status conferences, and settlement
negotiations, including ADR sessions, either in-person or via telephone.
3. Initial Scheduling: The parties shall comply with the following deadlines:
a) Disclosures pursuant to Fed. R. Civ. P. 26(a) shall be made on or before
________________, 20__.
b) Additional parties shall be joined on or before ________________, 20__.
c) Pleadings shall be amended by ________________, 20__.
d) Fact discovery shall be completed on or before ________________, 20__. The
Court may extend the discovery deadline upon a showing of good cause and upon motion filed
prior to the expiration of such deadline. The motion shall: (i) specifically state all discovery
completed to date and to be conducted if the extension is granted; (ii) contain a showing of good
cause for the requested extension; (iii) list any previous extensions of discovery; and (iv) attach a
proposed order which establishes specifically the extended closure date being requested and
setting forth the discovery to be conducted.
e) Plaintiff’s expert report(s) shall be produced on or before ________, 20__.
Defendant’s expert report(s) shall be produced on or before ________________, 20__.
f) Defendant shall depose Plaintiff’s expert on or before ___________, 20__.
Plaintiff shall depose Defendant’s expert on or before ________________, 20__.
g) Third party expert report(s) shall be produced on or before _______, 20__. Third
party expert deposition(s) shall be completed on or before ______________, 20__.
h) Pretrial motions relating to discovery or this Order shall be filed on or before the
last day of the applicable discovery deadline. This deadline does not apply to motions to extend
discovery, motions to compel discovery, motions in limine, motions for summary judgment, or
other pretrial motions.
Responses to motions relating to discovery or this Order shall be filed within
seven (7) days from the date of service of the motion. The Court frequently resolves such
motions by telephone conference, which the parties may also request. The Court may also
schedule a telephone conference before the time runs for any response. In such a case, the non-
moving party is excused from filing a response; instead, said party should be prepared to state its
position at the telephone conference.
Replies to such responses shall be filed seven (7) days from the date of service of
the response. Replies may be filed without the leave of the Court. Surreplies shall not be filed
without leave of the Court obtained in advance. For further information regarding general
motions practice, please see the “Chambers’ Rules” website available from the United States
District Court for the Western District of Pennsylvania’s homepage.
4. Alternative Dispute Resolution (ADR): The parties are advised to comply with all
ADR requirements pursuant to Local Rule of Civil Procedure 16.2. The parties are directed to promptly
schedule and file the notice of the ADR proceeding. A representative of any insurance carrier which may
be responsible, in whole or in part, for any portion of the claims alleged and who has full, unilateral
settlement authority must attend any ADR proceeding in person if insurance proceeds could cover any
portion of a settlement or verdict.
5. Procedures Following Inadvertent or Other Disclosure (“Clawback”): Pursuant to
Local Rule LCvR 16.1(D), and to aid in the implementation of Fed. R. Evid. 502, the following is ordered
in the event of an inadvertent a disclosure of any privileged or trial preparation/attorney work product
material:
a) The producing party shall promptly notify all receiving parties of the inadvertent
production of any privileged or trial preparation material. Any receiving party who has
reasonable cause to believe that it has received privileged or trial preparation material shall
promptly notify the producing party.
b) Upon receiving notice of inadvertent such production, any receiving party shall
immediately retrieve all copies of the inadvertently disclosed material and sequester such material
pending a resolution of the producing party’s claim either by the Court or by agreement of the
parties.
c) If the parties cannot agree as to the claim of privilege or protected status, the
producing party shall move the Court for a resolution within 30 days of the notice set forth in
subparagraph (a). Nothing herein shall be construed to prevent a receiving party from moving the
court for a resolution, but such motion must be made within the 30-day period.
d) Pursuant to Fed. R. Evid. 502(d), no inadvertent disclosure connected to this
litigation shall act as a waiver in any proceeding of any otherwise applicable privilege or
protection unless so ordered by this Court.
6. Discovery and Other Case Management Disputes: In the Court’s experience, many
discovery and case management disputes can be promptly resolved in a conference with the Court and
counsel. Therefore, in the event of such a dispute, lead counsel shall confer in person or by telephone,
agree on the scope and nature of the dispute, and then contact the involved law clerk or the Courtroom
Deputy to request a telephone status conference. The Court will usually either conduct the conference
immediately, or set such a conference to occur within 24 hours, and more often than not, the dispute will
be resolved at that time. The Court may, in situations involving more substantive matters, direct counsel
to file the appropriate motion for relief. The Court will conduct a status conference at any time at the
request of the parties.
7. Other Deadlines/Post-Discovery Status Conference: A Post-Discovery Status
Conference is set for __________________, 20__, at __:__ _.m., at which time deadlines for dispositive
motions, and a presumptive trial date, will be set. In the event a telephone status conference is scheduled,
all participating counsel shall contact Chambers at 412-208-7433 at least 48 hours before the conference
with their preferred contact number. The Court will initiate the call.
______________________________________
Mark R. Hornak
United States District Judge
cc: All counsel of record
December, 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PRETRIAL ORDER IN CRIMINAL CASE
AND NOW, this _____ day of _________, 20___, the Court HEREBY ORDERS as follows:
A. Final Pretrial Orders
1. Jury Selection & Trial. Jury selection and trial are set for _______, __________, 20___
at 9:30 a.m., in Courtroom 6A, 6th Floor, United States Courthouse, 700 Grant Street, Pittsburgh,
Pennsylvania.
2. The Court shall conduct a pretrial conference in this case on _______, _______, 20__ at
__________. A preliminary pretrial conference with the Court=s law clerk shall be held on
____________, 20__ at _______.
3. Exchange of Witness Lists and Exhibits.
a. The government shall file with the Court a list of trial witnesses, under seal,
listing separately the witnesses it will call and the witnesses it may call if
needed (other than purely for impeachment or rebuttal). For each witness
listed the government shall provide an offer of proof explaining the substance
of the witness= testimony. The offers of proof shall be no more than one (1)
double-spaced page with twelve (12) point font. Said witness list and offers
of proof need not be served on defendant, and shall be due by_______, 20__.
b. Defendant shall file with the Court, under seal, his or her list of trial
witnesses, excluding defendant, listing separately the witnesses it will call
and the witnesses it may call if needed (other than purely for impeachment or
rebuttal). For each witness listed Defendant shall provide an offer of proof
explaining the substance of the witness= testimony. The offers of proof shall
be no more than one (1) double-spaced page with twelve (12) point font.
Said witness list and offers of proof need not be served on the government,
and shall be due by _______, 20__.
c. All exhibits must be exchanged and marked in advance of trial. A Joint
Exhibit Binder is to be provided to the Court by the government no later than
_______, 20__; exhibits that are not objected to shall be marked AJ-1, J-2, J-3
etc.; the government=s exhibits which are being objected to by the defense
shall be marked numerically, i.e., G-1, G-2, G-3, etc.; the defendant=s
exhibits which are being objected to by the government shall be marked
alphabetically, A, B, C, etc. Similarly, a binder of disputed exhibits shall be
provided to the Court by each party on _______, 20__. Additionally, a chart
shall be provided to the Court, in hard copy and email form, identifying each
exhibit by number and name, providing a brief description of the nature of
the objection (if any), and a space for the Court=s ruling on the objection(s).
Objections will be resolved at or before the pretrial conference. The Court
expects that all exhibits will be presented using the Court’s electronic
presentation system. All trial counsel are expected to know how to use it.
d. No later than the morning of trial, the government shall submit three (3)
copies of the Joint Exhibit Binder, marked AJoint Exhibit Binder@.
e. Voluminous data shall be presented by summary exhibits pursuant to
Fed.R.Evid. 1006, and voluminous exhibits shall be redacted to eliminate
irrelevant material (which shall remain available for examination by
opposing counsel). Where copies of documents are offered, the originals
shall be available for examination, unless waived by stipulation.
4. Jencks Act - Impeachment Materials - Rule 404(b). The government shall provide
defense counsel with copies of any Brady/Giglio impeachment materials not previously disclosed, and
any additional evidence of defendant's uncharged conduct which it intends to introduce at the trial
pursuant to Federal Rule of Evidence 404(b) which was not previously disclosed (see Docket No. [40]),
on or before _______, 20__. The government is encouraged to provide all Jencks Act materials prior to
the pretrial conference. Notwithstanding this provision, all Brady/Giglio material must be disclosed in
accord with prevailing law in a timely manner (which may be at a time earlier than in an Order),
irrespective of the timeline in this Order.
5. Motions. The parties shall file all remaining motions and motions in limine, including
motions under Fed.R.Evid. 104(a), and motions to limit or sever issues, together with supporting briefs or
memoranda of law, by _______, 20__. Responses shall be filed by _______, 20__. All briefs supporting
or opposing such motions are limited to 5 pages.
6. Proposed Jury Instructions & Verdict Slips. Counsel shall meet to agree on a joint set
of proposed jury instructions regarding the offenses charged and their elements, the theory of the defense,
and any matters particular or unique to this case, including limiting instructions as to the phrase “among
others” in the Indictment; the parties may also submit Aboilerplate@ or standard criminal jury instructions.
After said meeting, and on or before _______, 20__, counsel file a unified (meaning one) combined set of
proposed instructions, and shall e-mail a copy of the proposed instructions to the law clerk assigned to the
case, or alternatively, deliver a computer disk/CD to chambers containing the instructions in Word
format. The filed set of instructions shall include both the agreed upon instructions and the proposed
instructions to which the parties have not agreed. Each agreed upon instruction shall include the
following notation at the bottom: AThis proposed instruction is agreed upon by the parties.@ Each
instruction to which the parties have not agreed shall indicate at the bottom the name of the party
proffering the instruction. Proposed instructions by different parties shall by grouped together (i.e.,
instruction should be matched with counter instructions).
A charging conference will be held, at which time a ruling will be made on each disputed point
for charge and a copy of the Court=s proposed charge will be supplied to counsel. Counsel are required to
state objections to the proposed charge at the charging conference and to supply the alternate language,
together with case authority.
The Court will not accept separate proposed jury instructions from the parties.
7. Voir Dire. Counsel are permitted to supplement the standard questions provided that the
proposed supplemental voir dire questions are submitted to the Court in writing by _______, 20__. Voir
dire questions will be asked by the Court, with as many questions as possible asked of the panel en banc.
Individual voir dire will be focused, in the interest of conserving time.
The government shall have six (6) peremptory challenges and the defense shall have ten (10)
peremptory challenges collectively. Each side shall have one challenge for each two (2) alternate jurors.
8. Joint Stipulations. The parties shall file joint stipulations by _______, 20__. All
possible stipulations shall be made as to:
a. Facts;
b. Issues to be decided;
c. The authenticity and admissibility of exhibits;
d. Expert qualifications and reports;
e. Deposition testimony to be read into the record; and
f. A neutral summary of the indictment and a brief statement of the defense (if
requested by the Defendant) which will be read to the jury to introduce the
trial and to be read to the venire before jury selection.
Counsel shall meet at a mutually convenient time and place to produce the joint stipulation in
time for filing as ordered.
B. Trial Procedure
1. Hours. Court is in trial session, unless otherwise ordered by the Court, Monday through
Friday, 9:300 a.m. to 4:30 p.m. with breaks where appropriate. All counsel are expected to be in their
seats and ready to commence at the appointed times.
2. Exhibits. Because counsel will have previously marked and exchanged all exhibits and
provided a copy to the Court, it will not be necessary during the trial to show exhibits to opposing counsel
prior to using them. All counsel are expected to fully utilize the Courtroom Presentation Technology.
3. Approaching the Witness. It is not necessary for counsel to request permission to
approach a witness.
4. Testifying Officers and Agents and Other Witnesses. All testifying law enforcement
officers and agents shall have any reports or declarations they have prepared or used to refresh their
recollections with them on the witness stand. All witnesses who will testify about the content of
documents will review those documents prior to taking the stand and be prepared to answer questions
about document contents based on their prior reading. Counsel are responsible for obtaining any
necessary writs for the appearance of any person in custody.
5. Opening and Closing Statements. Unless ordered otherwise, up to thirty (30) minutes
is permitted to each side for opening and closing statements, depending on the complexity of the case.
Counsel may use exhibits or charts in opening argument provided that the same have been provided to
opposing counsel beforehand and either agreement was reached or the Court has ruled upon the matter.
6. Side Bar Conferences. The Court believes that counsel should be considerate of the
jurors' time. Consequently, except where necessary to prevent legal prejudice to the parties or the trial
process, side bar conferences are disfavored because they can waste the jury's time and unduly extend the
length of the trial. Counsel will meet with the Court at 8:3045 a.m. each day (or earlier if necessary to
ensure that trial commences on time) each day to raise points of evidence or other issues that would
otherwise necessitate a side bar conference. If necessary, counsel and the Court may amplify their
objections and rulings on the record after the jury has been excused for a break, for lunch or for the day.
The Court will be available at 8:3045 a.m. each morning to address such evidentiary and other
issues. It is the responsibility of counsel to notify other counsel of the need for a conference at 8:3045
a.m. and all other counsel will be expected to be there at the appointed time for argument. The Court will
not delay the proceedings to respond to last minute requests for conferences to discuss matters which, in
the exercise of reasonable diligence, could have been heard at the morning conference.
7. Witness List. Counsel shall provide opposing counsel throughout the trial with a list of
the next day's witnesses in the order they are expected to be called. The same procedure will be
employed by both sides at the end of each trial day. Counsel should be sure that they have adequate
witnesses to fill the time allotted each day.
8. Note Taking. The jury shall be permitted to take notes, and will be given detailed
cautionary instruction as to their appropriate use.
9. Jury Questions. All written questions submitted by the jury are supplied to counsel.
Counsel and the Court will meet to discuss and hopefully agree on a reply. The jury is then summoned to
the Courtroom in most cases and an oral the verbal reply is given to them. A written reply is provided
where appropriate.
10. Jury Instructions. A copy of the jury instructions shall be provided to the jury for use
during its deliberations.
11. Jury Access to Exhibits. Unless otherwise advised by counsel, it will be assumed that
all admitted exhibits will be sent out with the jury.
SO ORDERED this __ day of ___________, 20__.
________________________________________
Mark R. Hornak
United States District Judge
cc: All counsel of record
