PRACTICE AND PROCEDURE MANUAL
FOR JUDGES AND MAGISTRATE JUDGES
FOR THE MIDDLE DISTRICT OF TENNESSEE
(Magistrate Judge Barbara D. Holmes)
I. NAME AND BRIEF BIOGRAPHY ...................................................................................1
II. PRELIMINARY GENERAL MATTERS .......................................................................... 1
A. Scheduling............................................................................................................................... 2
B. Correspondence with the Court ........................................................................................ 2
C. Telephone Conference with the Court .............................................................................. 2
D. Telephone Conference with Law Clerks ........................................................................... 3
E. Pro Se Litigants................................................................................................................. 3
F. Chamber Copies of Filings ............................................................................................... 3
III. PRETRIAL MATTERS FOR CIVIL CASES ................................................................................. 3
A. Case Management Conferences and Orders ..................................................................... 3
B. Agreed Orders, Continuances and Extensions .................................................................. 4
C. Pretrial Motions ................................................................................................................ 4
1. Referral to Magistrate Judge .................................................................................. 4
2 Dispositive Motions ............................................................................................... 4
3. Briefs............................................................................................................................ 5
4. Oral Argument ....................................................................................................... 5
D. Discovery ................................................................................................................................ 5
1. Interrogatories .............................................................................................................. 5
2. Telephone Depositions ........................................................................................... 5
3. No Speaking Objections During Depositions ........................................................ 5
4. Discovery Disputes ................................................................................................ 5
5. Motions to Compel or for Protective Order/Rule 37 Sanctions .............................. 6
E. Protective Orders and Motions to Seal Documents or Portions of Documents ................ 6
F. Expert Witnesses .............................................................................................................. 6
G. Settlement Conferences ..................................................................................................... 7
1. Who Presides ......................................................................................................... 7
2. Procedure ..................................................................................................................... 7
H. Pretrial Briefs.................................................................................................................... 7
I. Pretrial Orders .................................................................................................................. 7
J. Pretrial Conference ........................................................................................................... 8
K. Temporary Restraining Orders.......................................................................................... 8
i
IV. PRETRIAL MATTERS FOR CRIMINAL CASES ....................................................................... 8
A. Initial Appearances, Detention Hearings and Preliminary Hearings ................................... 8
B. Discovery and Pretrial Motions .......................................................................................... 9
C. Status Conferences and Pretrial Conferences ..................................................................... 9
D. Locating Incarcerated Clients ............................................................................................. 9
E. Service of Subpoenas for Criminal Proceedings. ................................................................ 9
F. Requests for Continuance of Trials in Criminal Matters .................................................... 9
G. Guilty Pleas ......................................................................................................................... 9
V. TRIAL PROCEDURES ................................................................................................................ 10
A. Scheduling ........................................................................................................................ 10
B. Out-of-Town Parties, Witnesses or Attorneys .................................................................. 10
C. Motions in Limine............................................................................................................. 10
D. Voir Dire and Jury Selection............................................................................................. 10
E. Note-Taking by Jurors ...................................................................................................... 10
F. Opening Statements .......................................................................................................... 11
1. Length .................................................................................................................. 11
2. Use of Exhibits ..................................................................................................... 11
G. Courtroom Decorum and Witness Examination ............................................................... 11
H. Side Bar Conferences........................................................................................................ 11
I. Videotaped or Audiotaped Testimony .............................................................................. 12
J. Deposition Reading........................................................................................................... 12
K. Exhibits ............................................................................................................................. 12
L. Witness Lists ..................................................................................................................... 12
M. Courtroom Technology ..................................................................................................... 12
N. Motions for Judgment as a Matter of Law ........................................................................ 13
O. Proposed Jury Instructions and Verdict Forms ................................................................. 13
P. Proposed Findings of Fact and Conclusions of Law. ........................................................ 13
Q. Offers of Proof .................................................................................................................. 13
R. Closing Argument ............................................................................................................. 13
S. Jury Deliberation............................................................................................................... 13
1. Copy of Instructions. ............................................................................................ 13
2. Access to Exhibits ................................................................................................ 13
3. Access to Transcript of Testimony or Videotaped Testimony ............................. 14
4. Availability of Counsel ........................................................................................ 14
5. Taking the Verdict and Special Interrogatories.................................................... 14
ii
6. Polling the Jury .................................................................................................... 14
7. Interviewing the Jury ........................................................................................... 14
T. Requests for Attorneys' Fees............................................................................................. 14
VI. SENTENCING IN CRIMINAL CASES....................................................................................... 14
VII. MEDIA COMMUNICATIONS .................................................................................................... 14
iii
I. NAME AND BRIEF BIOGRAPHY
Magistrate Judge Barbara D. Holmes
Judge Holmes was appointed U.S. Magistrate Judge in August 2015. She is a graduate of Adams
State University (in southern Colorado) and Vanderbilt University School of Law. Prior to her
appointment, Judge Holmes practiced law for almost 30 years in Nashville, representing clients in
commercial and bankruptcy litigation in federal and state courts, in business workouts, and in
custody and other juvenile law matters on a pro bono basis. In addition to private practice, Judge
Holmes previously worked for the U.S. Department of Justice in the Office of the U.S. Trustee
for Region 8. Judge Holmes is a Master with the Harry Phillips American Inn of Court. She is
also a former director and past president of the Mid-South Commercial Law Institute and a
former director and past president of the Nashville Bar Association. Judge Holmes is a fellow of
the Tennessee Bar Foundation, for which she also served as Chair of the Board of Trustees. She
is also a fellow of the American Bar Foundation and the Nashville Bar Foundation. Judge Holmes
previously served on the Tennessee Bar Association Board of Governors, and is a past chair of
the Executive Council for the TBA Bankruptcy Law Section and a past chair of the TBA Public
Education Committee. She is also a member of the TBA Ethics and Professional Responsibility
Committee. Judge Holmes is a delegate to the ABA House of Delegates and a former member of
the ABA Commission on Youth at Risk. Judge Holmes previously served as a Hearing
Committee member for the Tennessee Board of Professional Responsibility. She is a frequent
producer and lecturer on a broad range of continuing legal education topics, previously chaired
the CLE Committee of the Nashville Bar Association, and chaired a special task force on
continuing legal education for the NBA. Judge Holmes is also a recipient of the Nashville Bar
Association's CLE Award for exceptional service to the NBA's CLE program. Judge Holmes was
previously a Rule 31 mediator. She was also previously a Juvenile Court referee, where she
heard cases involving truancy, dependency and neglect, and private custody and visitation
disputes. Judge Holmes also chaired a statewide commission on juvenile justice issues for the
Tennessee Bar Association, which, among other things, assisted with development of new
standards for guardians ad litem.
II. PRELIMINARY GENERAL MATTERS
This Practice and Procedure Manual was prepared at the request of the Federal Court Committee
of the Nashville Bar Association in the format of manuals previously compiled by the
Committee.
[The following paragraphs are excerpted from original Manuals:
The Committee expresses thanks to all of the Judges and Magistrate Judges, and to the
Clerk of the Court, for all of the input and guidance they provided in gathering this
information.
In preparing the Manual, efforts were taken to avoid repeating or characterizing rules
otherwise contained in the Federal Rules of Civil Procedure, the Federal Rules of
Criminal Procedure, the Local Rules of Court, the Local Rules Governing Duties of
and Proceedings before Magistrate Judges, or the Administrative Practices and
Procedures for Electronic Case Filing. The Manual does not attempt to be an
1
exhaustive guide for the practice of law. It is intended to provide information about
judicial practices and preferences in this District that are not necessarily addressed in
any set of rules.
To the extent that there is any conflict between this Manual and these other applicable
rules, practices and procedures, the other applicable rules, practices and procedures
control. This Manual is the work of the Nashville Bar Association. It is not an
official statement of the Court. This Manual may not be cited as authority, and is
subject to change at any time without notice.
Last, at the time the Manual was prepared in 2005, the District had only recently
adopted electronic case filing. It would be prudent, therefore, to review local rules and
administrative orders for information about electronic case filing and address any
questions to the Judge or Magistrate Judge in a particular case.]
A. Scheduling
Judge Holmes' courtroom deputy can be contacted at (615) 736-5164. Her courtroom deputy
handles scheduling of telephonic conference and matters to be set in the courtroom, including
trial settings.
B. Correspondence with the Court
Other than for scheduling purposes, correspondence with the Court is discouraged. Written
communication with the Court should be in the form of pleadings, motions, notices, memoranda,
and briefs, as provided for in the Federal Rules of Civil Procedure and the Local Rules. In the rare
instances when correspondence with the Court is permitted, directed or invited by the Court, a
copy of the correspondence shall be served on opposing counsel, and all such correspondence
will be filed with the Clerk of Court and is a matter of public record, unless otherwise directed by
the Court, as in the case of confidential settlement conference statements.
C. Telephone Conferences with the Court
The judges, upon request, generally will attempt to accommodate out-of-town counsel or other
circumstances unique to the case by permitting joint telephone conferences with the Court. The
judges also may entertain telephone conferences regarding discovery disputes that arise during
depositions. As discussed below, Judge Holmes does not generally permit out-of-town counsel to
participate in initial case management conferences telephonically.
Requests for out-of-town counsel to participate telephonically in matters set before Judge Holmes
should be made by motion sufficiently in advance of the matter set to allow for consideration of
the motion.
Judges Holmes encourages the use of joint telephone conferences with the Court to resolve
discovery disputes (including for disputes that arise during depositions), for subsequent case
management conferences, and other simple matters. Judge Holmes does not record telephone
conferences, but usually (although not always) enters an order generally reciting the substance and
2
outcome of the telephone conference. To create any other record, the proceeding will need to
occur in court.
D. Telephone Conference with Law Clerks
Judge Holmes discourages telephone conferences with her law clerks, other than as necessary to
inquire about a scheduling question or issue. The merits of the case should never be discussed
with the law clerks.
E. Pro Se Litigants
Pro se litigants are expected to follow the Local Rules and these guidelines, as are all parties
represented by counsel.
Judge Holmes typically does not set initial case management conferences in pro se cases, but she
does enter scheduling orders.
F. Chamber Copies of Filings
Generally, Judge Holmes does not want chamber copies of filings. Occasionally, in a particular
case because of the size of the filing or for some other specific reason, Judge Holmes will request a
chambers copy from counsel.
III. PRETRIAL MATTERS FOR CIVIL CASES
A. Case Management Conferences and Orders
Judge Holmes will generally utilize the referring District Judge’s standard case management
order, with additional information she requires in all case management orders. (For specific
additional information and other instructions, attorneys should refer to Judge Holmes’ standard
order and Instructions for Initial Case Management Conferences available by separate links, and
the Notice of Setting of Initial Case Management Conference entered in ECF.) If the referring
District Judge does not have a standard form, Judge Holmes’ preferred standard form, which is
available by separate link, can be used. If there are any special discovery or other case
management procedures contemplated, those should be discussed and included in the proposed
initial case management order. Also, if there is a disagreement over the case management
schedule, counsel should not submit separate proposed orders; they should separately state their
proposals under each section in the same proposed order. In addition to filing the proposed initial
case management order, counsel should ensure that a copy is also emailed to the courtroom
deputy in Word format on the same date that the proposed initial case management order is
electronically filed. Carefully read the Notice of Setting of Initial Case Management Conference
for additional instructions.
Judge Holmes holds initial case management conferences in-court, not by telephone. Lead
counsel for each party is required to attend the initial case management conference in person. If
lead counsel is not available or is located out of town, a motion may be filed for another counsel
of record to attend, which will generally be granted on the condition that the attending counsel
have access to lead counsel’s calendar for purposes of scheduling case management deadlines and
selecting a target trial date.
3
B. Agreed Orders, Continuances and Extensions
Judge Holmes tries to conform her practice on these matters to the referring District Judge and
will not make scheduling modifications that may affect a trial date set by the District Judge.
Judge Holmes also requires the following procedures be followed for motions to modify a case
management order or deadline:
Any motion to modify a case management order or any case management deadline
must be filed at least seven (7) days in advance of the earliest impacted deadline.
Unless a joint motion, the motion for modification must include a statement
confirming that counsel for the moving party has discussed the requested
modification or extension with opposing counsel and whether or not there is any
objection to the requested modification or extension. The motion for modification
must also include: (i) all deadlines, even unaffected deadlines, so that it will not be
necessary for the Court to review one or more previous case management orders in
consideration of the motion and (ii) a statement that the requested extension will still
conform to the requirements of LR 16.01(d)(2.f) that no dispositive motion deadline,
including response and reply briefs, shall be later than 90 days in advance of the trial
date. Motions for extensions should also detail the moving party’s efforts at
diligently complying with the originally schedule deadline and the facts
demonstrating good cause for modification of the deadline as required by Fed. R.
Civ. P. 16(b)(4).
If, as a result of the requested modifications, the parties are also seeking a continuance of the trial
date, the motion should be styled as a motion to continue trial, with a request that, if the trial is
continued, the parties’ requested modifications of the case management schedule be referred for
consideration by the Magistrate Judge.
Proposed orders granting motions to extend deadlines should recite that, except for the
modifications provided in the order, all other provisions of previous case management and
scheduling orders remain in full force and effect. Parties should note that even if this language is
omitted, either by the parties or by Judge Holmes, she considers this to be the case.
In cases that she has on consent, Judge Holmes will consider extensions upon agreement or for
good cause shown.
C. Pretrial Motions
1. Referral to Magistrate Judge
Judge Holmes has no applicable comments regarding this section.
2. Dispositive Motions
The District Judges, with the exception of pro se cases, normally resolve dispositive motions
without reference to a Magistrate Judge. District Judges may refer specific dispositive motions to
4
a Magistrate Judge for a Report and Recommendation and will normally refer all dispositive
motions in cases where at least one of the litigants is pro se.
Judge Holmes will rule on dispositive motions when the parties consent to trial before a
Magistrate Judge.
3. Briefs
In appropriate cases, leave of Court to exceed the page limitations in the Local Rules is liberally
granted. A reply memorandum may be filed upon leave of Court. Proposals for additional pages
and a reply schedule should be included in the proposed case management order, and raised at the
initial (or a subsequent) case management conference.
4. Oral Arguments
Judge Holmes grants oral argument when it is appropriate or when it would be beneficial.
Requests for oral argument should be made in the title and body of the underlying motion, or,
preferably, by separate motion.
D. Discovery
Attorneys are expected to be knowledgeable of the 2015 amendments to discovery rules, and should
prepare their written discovery requests and responses in accordance with the amendments.
1. Interrogatories
If the needs of a case dictate more than (or fewer than) 25 interrogatories, such issues should be
raised at a case management conference or, if that is not practical, by motion.
2. Telephone Depositions
Judge Holmes has no applicable comments regarding this section.
3. No Speaking Objections During Depositions
Speaking objections are not allowed during the course of depositions. Similar to LR 39.01(d)(2),
objections made during depositions shall be concisely stated as being "hearsay," "a conclusion,"
etc., without argument.
4. Discovery Disputes
The judges agree that every effort should be made by the attorneys to resolve discovery disputes
before bringing them to the Court's attention. For those cases assigned to a Magistrate Judge,
discovery disputes will generally be decided by the Magistrate Judge.
Judge Holmes will schedule a telephonic discovery conference upon request (or as provided for
by the case management order). The required effort to resolve a discovery dispute before
bringing it to the attention of Judge Holmes means the attorneys should talk about the disputed
5
issues, and the certification required by LR 37.01(b)(3) should state that the attorneys have
spoken as required.
Discovery disputes that cannot be resolved after good faith discussions should be brought
promptly to the attention of Judge Holmes either by a request for a discovery conference or a
discovery motion. In connection with any discovery conference or discovery motion, the parties
will be required file a joint discovery dispute statement, which describes the specific discovery
request(s) in dispute and details each party’s position with supporting fact and legal authorities.
5. Motions to Compel or for Protective Order/Rule 37 Sanctions
Judge Holmes considers motions to compel/for protective order or for sanctions on a case-by-
case basis. However, if counsel have not spoken to each other in an effort to resolve the dispute,
or if there is any uncertainty about whether counsel have spoken to each other, the motion to
compel or for sanctions will be denied. Any motion to compel or for a protective order must
address the proportionality considerations in Fed. R. Civ. P. 26(b)(1).
E. Protective Orders and Motions to Seal Documents or Portions of Documents
Judge Holmes appreciates the need for protective orders in certain cases. Motions to approve
agreed protective orders and proposed protective orders must not impermissibly conflate the
standards for production of information as confidential with the more demanding standards for
sealing judicial records from public view by containing any provision that information
designated as “confidential” will be automatically sealed if filed with the Court. See Shane
Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299 (6th Cir. 2016). If this
provision for automatic sealing is contained in a proposed protective order, it will either be
stricken or the motion for entry of the proposed protective order will be denied.
If a party wants to file confidential materials with the Court, and requests that those materials be
placed under seal, the procedures in Section 5.07 of Administrative Order 167 – Administrative
Practices and Procedures for Electronic Case Filing should be followed. In order for the Court to
make the requisite findings and conclusions mandated by the Sixth Circuit, “[t]he proponent of
sealing must provide compelling reasons to seal the documents and demonstrate that the sealing
is narrowly tailored to those reasons—specifically by ‘analyz[ing] in detail, document by
document, the propriety of secrecy, providing reasons and legal citations.’” Beauchamp v
Federal Home Loan Mortgage Co., 628 Fed.Appx. 202, 207 (6th Cir. 2016) (quoting Shane Grp,
Inc. v. Blue Cross Blue Shield of Michigan, supra at *3). A protective order in a case is
insufficient cause for sealing a document. Id. Generally, “only trade secrets, information
covered by a recognized privilege (such as the attorney-client privilege), and information
required by statute to be maintained in confidence … is typically enough to overcome the
presumption of [public] access.” Rudd Equipment Co., Inc. v. John Deere Construction &
Forestry Co., 834 F.3d 589, 594-95 (quoting Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 546
(7th Cir. 2002)).
F. Expert Witnesses
Judge Holmes allows examination of experts by a standard question and answer format and does
not require the testimony to be reduced to writing.
6
G. Settlement
1. Who Presides
All Magistrate Judges handle settlement conferences for each other. Most settlement conferences
are done by Magistrate Judges who are not assigned to the case, although parties may request
that the assigned Magistrate Judge conduct the settlement conference. The selection of a judge to
conduct a settlement conference is viewed as an appropriate use of forum shopping. When Judge
Holmes conducts a settlement conference in a case which to which she is assigned and the case
doesn’t settle, she will recuse herself from the case if there are any other pending or possible
case management matters. Judge Holmes prefers that requests for a settlement conference be
made by motion for a status conference, which should also state (i) the reasons why mediation
under LR 16.05 is not feasible; (ii) the parties’ proposed timing for scheduling of the settlement
conference; and (iii) any preference of a particular Magistrate Judge to conduct the settlement
conference (which may include Magistrate Judge Bryant, who has been recalled on a limited
availability to conduct settlement conferences). Judge Holmes will then schedule a telephonic
status conference to discuss the need for (and, if appropriate, referral for and scheduling of) a
judicial settlement conference.
2. Procedure
If Judge Holmes is the settlement judge, she will issue an order with specific requirements for
submissions by the parties. Generally, this submission should include a description of the case,
the history of any settlement offers already exchanged, the party's evaluation of the case, the cost
of litigation, and representation that these matters have been discussed with the client. These
confidential statements should be submitted directly to Judge Holmes’ courtroom deputy and not
filed with the Court. They do not become part of the case file.
All individual parties must be present with full settlement authority, and all corporate parties
must be present with representatives having full settlement authority. Judge Holmes conducts a
telephone conference with only attorneys prior to the settlement conference to discuss the
logistics of the settlement conference. If a settlement is reached, counsel and the parties should
be prepared to reduce the settlement (or at least the major terms) to writing to be signed by all
parties before leaving the courthouse.
H. Pretrial Briefs
Judge Holmes encourages pretrial briefs in non-jury cases. She may request (additionally or
instead) that the parties’ positions be presented as proposed findings of fact and conclusions of
law, either prior to trial or within a prescribed period of time after the parties receive the transcript.
I. Pretrial Orders
Unless ordered otherwise, an agreed proposed pretrial order should be jointly prepared by the
parties and submitted to the Court no later than the time of the pretrial conference. The proposed
order should contain: (1) statement of the basis for the Court’s jurisdiction; (2) a short summary of
plaintiff's theory (no more than one page) and a short summary of defendant's theory (no more
than one page); (3) the issues to be submitted to the judge or jury; (4) any procedural issues; (5) a
7
statement that the pleadings are amended to conform to the pretrial order and that the order
supplants the pleadings; (6) a succinct statement of the relief sought; (7) a summary of any
anticipated evidentiary disputes; (8) a statement that counsel have complied with the requirements
regarding the exchange of witness lists, exhibit lists, expert witness statements, depositions
which are expected to be offered into evidence, etc.; and (9) an estimate of the anticipated length
of trial.
J. Pretrial Conference
All counsel who are expected to participate in the trial must attend the pretrial conference.
Counsel must submit to the Court prior to the pretrial conference the following: (1) stipulations;
(2) motions in limine; (3) witness list; (4) exhibit list, and (5) for a jury trial, proposed jury
instructions, with citations to supporting authorities, and proposed jury verdict forms.
Counsel should also be prepared at the pretrial conference to: (1) identify and discuss undisputed
facts and issues; (2) discuss expert testimony; (3) generally preview proposed testimony and
exhibits; (4) discuss motions in limine; (5) discuss settlement; and (6) if pretrial briefs have not
already been filed, discuss what shall be in the pretrial briefs and when the briefs shall be filed.
The parties may be required to file additional materials as necessary.
K. Temporary Restraining Orders
Generally, requests for TROs are handled by the District Judges.
IV. PRETRIAL MATTERS FOR CRIMINAL CASES
A. Initial Appearances, Detention Hearings and Preliminary Hearings
When a person is arrested on federal charges, the person ordinarily must be taken before a
Magistrate Judge without unnecessary delay. Prior to this initial appearance, a pretrial services
officer will provide the defendant with a financial affidavit if the defendant is seeking appointment
of counsel, and will also provide a form called Important Notice to Defendant and Explanation of
Rights and Proceedings. At the initial appearance, the Magistrate Judge will review these
documents, the charges, and the statutory maximum penalties with the defendant. The
requirements for initial appearances are set forth in Fed.R.Crim.P. 5.
In addition to the initial appearance, a Magistrate Judge will conduct the arraignment, detention
hearing, and preliminary hearing. See Fed.R.Crim.P. 5.1 (Preliminary Hearings); Fed.R.Crim.P.
10 (Arraignments); 18 U.S.C. § 3142 (Bail Reform Act).
In felony cases where a defendant has been indicted, the defendant may submit a written
AWaiver of Personal Appearance at Arraignment and Entry of Plea of Not Guilty”, in lieu of an
in-court arraignment. A waiver form is available on the Court’s website.
In cases involving non-English speaking defendants, the Court will provide an interpreter for
court proceedings. The courtroom deputy will usually attempt to arrange to have the interpreter
8
come to the courthouse approximately thirty minutes to one hour prior to the time set for the
initial appearance, so that the interpreter will be available at that time to assist defense counsel to
converse with the client. If defense counsel requires an interpreter to converse with the client at
other times, counsel should contact the interpreter directly to arrange the meeting. The name and
phone number for an interpreter can be obtained from the Clerk=s Office at (615) 736-5498.
B. Discovery and Pretrial Motions
In felony cases, the practice in the Middle District is for the District Judges to hear all pre-trial
matters, such as admissibility of confessions, suppression of evidence, motions to dismiss, etc.
If a particular matter is referred to a Magistrate Judge, it will be handled on an expedited basis.
For petty offenses, which do not require consent, and for misdemeanors where consent to
proceed before the Magistrate Judge has been granted, the Magistrate Judge will conduct all
pretrial matters.
C. Status Conferences and Pretrial Conferences
Judge Holmes has no applicable comments regarding this section.
D. Locating Incarcerated Clients
There are no federal detention facilities currently located in the Middle District of Tennessee.
The United States Marshals Service contracts for space with a number of local detention
facilities in Tennessee and Kentucky. If a defendant is detained pending trial, defense counsel
may contact the United States Marshal’s Office at (615) 736-5417 to find out where their client is
located. Defense counsel should then contact the facility directly concerning visitation and
other rules of the particular facility where the client is located.
E. Service of Subpoenas for Criminal Proceedings
If defense counsel has been appointed by the Court, the United States Marshal will serve
subpoenas on behalf of the defendant. Defense counsel must obtain an order from the district
court judge that directs the United States Marshal to serve the subpoenas. This order should be
obtained, and the list of subpoenas should be provided to the United States Marshal, well in
advance of the criminal proceedings where the witnesses shall appear.
F. Requests for Continuances of Jury Trials in Criminal Matters
Judge Holmes has no applicable comments regarding this section.
G. Guilty Pleas
The Court has standard plea petition forms that must be completed and submitted by the
defendant in felony and misdemeanor cases. These form petitions are available on the Court's
website. Even in cases where the defendant has entered a plea agreement with the U.S.
Attorney, the standard plea petition must be submitted as well.
9
V. TRIAL PROCEDURES
A. Scheduling
Jury trials in Nashville usually begin on Tuesdays at 9:00 a.m. and continue until concluded. The
court day generally runs from 9:00 a.m. to 5:00–5:30 p.m. with a one-hour lunch break.
However, counsel should be prepared to arrive early or stay late in order to discuss matters
outside the presence of the jury or when the jury wishes to deliberate past normal working hours.
Bench trials will be set by availability on Judge Holmes’ calendar.
B. Out-of-Town Parties, Witnesses or Attorneys
Judge Holmes will attempt to accommodate out-of-town parties, witnesses and attorneys to the
extent possible, although local counsel is expected to be ready to try the case. In attempting to
accommodate out-of-town parties, witnesses and attorneys, Judge Holmes takes into
consideration potential hardship to other cases and the efficient administration of justice.
C. Motions in Limine
Appropriate motions in limine are encouraged. Such motions identify evidentiary issues that will
arise at trial and may help narrow issues for trial. However, attorneys are cautioned against filing
excessive motions in limine and should carefully consider whether the issue is more properly
raised and decided in the context of an objection at trial. If a motion in limine is not decided until
trial, the non-moving party should be careful to not go into a matter that is the subject of a motion
in limine, whether in opening statements or with a witness, until a ruling has been made.
Judge Holmes makes every effort to decide motions in limine far enough in advance of trial so the
parties may plan the presentation of their case.
D. Voir Dire and Jury Selection
Procedures for voir dire will be discussed at the pretrial conference with Judge Holmes. Counsel
are expected to be reasonable in the time used for voir dire, and will not be permitted to argue
their case or get too personal with the jury.
E. Note-Taking by Jurors and Other Jury Issues
Generally, jurors may take notes and may take their notes into the jury room during deliberation.
Judge Holmes will instruct the jury regarding the use of notes. Other potential jury issues,
including without limitation, questions by the jury and the timing of instructions to the jury, will
be addressed on an as-needed basis, either at the pretrial conference or during trial outside the
presence of the jury.
10
F. Opening Statements
1. Length
Generally, Judge Holmes does not set a time limit for opening statements, but expects attorneys
to be reasonable in the time used for opening statements. Judge Holmes may impose a limit or set
other guidelines in a specific case. Opening statements should be direct and not contain
arguments of counsel.
2. Use of Exhibits
Counsel who wish to use exhibits or demonstrative evidence in opening statements should consult
with opposing counsel in advance and attempt to work out any objections. At the pretrial
conference, counsel should also request permission to use exhibits or demonstrative evidence in
opening statements. As a general rule, and subject to any time or other limitations, exhibits to
which no counsel has an objection will be allowed during opening statements, and contested
exhibits will not be allowed without prior Court approval.
G. Courtroom Decorum and Witness Examination
Attorneys shall stand when speaking, and all objections and comments thereon shall be
addressed to the Court. There shall be no conversation or oral confrontation between opposing
counsel, and neither counsel nor parties may leave the courtroom without prior approval of
Judge Holmes.
Except as noted below, Judge Holmes generally expects that counsel will remain behind, or
within an arm's length, of the podium, unless they ask to move about the courtroom, for
permission to approach witness, or for permission to approach the courtroom deputy or
courtroom officer to pass an exhibit to the witness. Attorneys should introduce their witnesses
with the background information referred to in LR 39.01(c)(2) and avoid time-consuming
questions on that subject. Attorneys shall make their objections without speeches or coaching
the witness. Attorneys should not repeat or attempt to re-characterize a witness’s answers
during an examination.
Only one attorney for a party may conduct examination and raise objections during the
testimony of any given witness. Examination beyond redirect is discouraged, but, if appropriate,
Judge Holmes may allow recross.
In a particular case, Judge Holmes will sometimes ask (or allow) counsel to remain seated to
respond to questions.
H. Side Bar Conferences
Side bar conferences are allowed, but requests for them should be kept to a minimum and used
only for matters that can be resolved quickly. One of the reasons to keep side bar conferences to
a minimum is that, due to the size of some of the courtrooms, it is not always possible to prevent
the jury from hearing such conversations.
11
Judge Holmes adds that, in addition to the general statement above, she prefers that matters that
need to be discussed out of the presence of the jury be raised during recesses. Counsel should
anticipate these needs, confer with each other, and notify the courtroom deputy or law clerk as
the need to address an issue approaches.
I. Videotaped or Audiotaped Testimony
Videotaped or audiotaped testimony is allowed. Attorneys should edit the tape to remove
irrelevant and objectionable material. Opposing counsel should be allowed to view the tape
before it is presented. Judge Holmes expects counsel will discuss this in advance of the pretrial
conference and reach an agreement on the method. The use of videotaped testimony should be
discussed at the pretrial conference so that appropriate equipment can be made available at the
trial.
J. Deposition Reading
Reading a deposition into the record is allowed. Depositions read at trial should be edited so that
only testimony relating to the witness's background, the issues in the case, and credibility is read.
It is permissible to have co-counsel, a paralegal, or someone retained for that purpose read the
answers of the witness from the witness box when a deposition is to be read at trial.
If a transcript is lengthy and it is a non-jury trial, counsel may request to just have the transcript
submitted rather than read into the record.
K. Exhibits
When introducing an exhibit, counsel should always show it to opposing counsel first and have
an extra copy available for the Court. Copies of each party's exhibit list and witness list shall be
provided to the Court, the courtroom deputy, court reporter and opposing counsel on the first day
of trial.
Pre-marked: Judge Holmes wants exhibits to be pre-marked, and clearly marked as “Plaintiff’s
Exhibit” or “Defendant’s Exhibit”.
Stipulation as to admissibility and authenticity: The parties should stipulate as to the
admissibility and authenticity of as many exhibits as possible prior to trial.
L. Witness Lists
Witness lists should be exchanged by the parties as provided in a pretrial order, and should be
provided to the Court, the courtroom deputy, the court reporter, and opposing counsel at the
beginning of the trial.
M. Courtroom Technology
Use of courtroom evidence presenter with camera and screen/visual aids: All of the courtrooms
have wireless internet connectivity. All judges expect counsel who plan to use courtroom
technology to learn how to use it prior to trial so they can accomplish what is intended without
assistance from the courtroom staff. The Magistrate Judges’ courtrooms do not have an evidence
presenter, but the equipment may be available from the clerk’s office; counsel must make
12
arrangements with the clerk’s office for the use of the equipment. Alternatively, the trial may be
held in another courtroom. Either option should be discussed with Judge Holmes as soon as
possible so that appropriate arrangements can be made well in advance of trial. If counsel expect
to use the evidence presenter or other technology during trial, they should make sure that is
discussed at the pretrial conference. If counsel expect to use the evidence presenter or other
technology during a hearing, they should notify the Court as much in advance as possible.
N. Motions for Judgment as a Matter of Law
If counsel can anticipate this motion, they should give the Court advance notice and file a brief
in support of the motion. Otherwise, it will be heard on oral motion and argument. In many
cases a ruling will be delayed until after a jury verdict.
O. Proposed Jury Instructions and Verdict Forms
In addition to the requirements of LR 51.01, Judge Holmes requires all proposed jury
instructions and verdict forms to be filed prior to the pretrial conference. The order setting the
pretrial conference will set the filing deadline. Additionally, proposed jury instructions should be
emailed to the courtroom deputy in Word format by the date set out in the pretrial order or as
otherwise instructed.
P. Proposed Findings of Fact and Conclusions of Law
Proposed findings of fact and conclusions of law are discussed above.
Q. Offers of Proof
Offers of proof are allowed. In a jury trial, offers of proof will ordinarily take place outside the
presence of the jury, usually during a break, at lunch, or at the end of the day.
R. Closing Argument
Counsel may not express personal opinions or beliefs (such as statements that begin with "I
believe…"), or make personal references to other lawyers. Counsel may argue any inferences
from the proof that are logical and supported by the evidence. There is no set length for closing
argument, but may be set on a case-by-case basis. Judge Holmes will consider counsel’s input
regarding reasonable time for closing statements.
S. Jury Deliberation
1. Copies of Instructions
A copy of the jury charge and verdict form will be provided to jurors for use in deliberations.
2. Access to Exhibits
Absent any objections, and subject to Item 3 below, jurors are given access to exhibits admitted
at trial. Exhibits are sent to the jury room at the beginning of deliberation.
13
3. Access to Transcript of Testimony or Videotaped Testimony
Due to the concern that access tends to give undue emphasis to testimony that is transcribed or
videotaped, this is discouraged and not frequently allowed. However, the judges will make
determinations on a case-by-case basis.
4. Availability of Counsel
Counsel will not be required to remain at the courthouse during jury deliberations, but they must
advise the courtroom deputy of a phone number where they can be reached on short notice.
However, Judge Holmes may instruct counsel otherwise on an as-needed basis. Counsel must be
available to appear in Court without unreasonable delay while the jury is deliberating.
5. Taking the Verdict and Special Interrogatories
The judges will read the verdict form and special interrogatories.
6. Polling the Jury
Judge Holmes will poll the jury upon request of counsel, and may do so in every case of her own
volition.
7. Interviewing the Jury
LR 39.01(f)(2) controls requests for post-verdict interviewing of jurors. Permission to interview
jurors will only be granted in extraordinary circumstances.
T. Requests for Attorneys' Fees
All requests for attorneys' fees should be made by filing an application in writing supported by
detailed affidavits and time records, in accordance with LR 54.01(b).
VI. SENTENCING IN CRIMINAL CASES
Because sentencings in felony cases are handled by the District Judges, Judge Holmes has no
applicable comments about sentencing in felony cases. For petty offenses, which do not require
consent, and for misdemeanors where consent to proceed before the Magistrate Judge has been
granted, sentencing will be handled on a case-by-case basis as necessary.
VII. MEDIA COMMUNICATIONS
The Court speaks through its orders and memorandum opinions.
14
