PROCEDURES GOVERNING CIVIL CASES
CONSENTED TO MAGISTRATE JUDGE BOOR
Motions for Summary Judgment ................................................................................... 2
Guidance To Pro Se Litigants Regarding Motions for Summary Judgment .................. 8
Jury Trials ....................................................................................................................... 9
Bench Trials .................................................................................................................. 13
Trial Exhibits ................................................................................................................ 16
Trial Exhibit Form ........................................................................................................ 17
Standard Voir Dire Questions...................................................................................... 18
Standard Civil Jury Instructions .................................................................................. 20
Calling Witnesses to Trial ............................................................................................ 34
Attorney Fees ................................................................................................................ 39
Counsel Rooms During Trial ....................................................................................... 40
Contacting Jurors.......................................................................................................... 41
Settlements, Stipulated Dismissals, and other Dispositions of a Case ........................ 42
Electronic Evidence..…………………………………………………………………….……43
Electronic Filing…………………………………………………………………………….…45
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MOTIONS FOR SUMMARY JUDGMENT
These procedures explain how to present and oppose motions for summary judgment.
You should follow these procedures and Rule 56 carefully.
These procedures require careful preparation of statements of proposed findings of fact.
The purpose of these statements of proposed findings of fact is to clearly identify the
essential facts material to the motion for summary judgment, and to help the court
determine if those facts are genuinely disputed. A dispute of fact is genuine if both
sides have evidentiary support for their positions. Accordingly, these procedures are
also designed to help the court see the evidentiary support for the proposed facts.
The court will not search the record for facts or evidence. Even if there is evidence in
the record to support your position on summary judgment, if you do not propose a
finding of fact with the proper citation, the court will not consider that evidence when
deciding the motion.
The fact documents are most useful if the proposed facts, and especially the responses
and replies to those facts, are succinctly stated. The fact documents should not be
inflated with lengthy argument. If the responses to fairly proposed facts, or the replies
to fairly disputed facts, are inappropriately argumentative, then the court may strike
the offending response, or in extreme cases, an offending pleading.
Because the material facts must be proposed in a statement of proposed facts, it is not
necessary to repeat all those facts in the briefs. However, the court finds it helpful to
have the background facts concisely stated in an introductory section of the brief.
I. The motion for summary judgment
A. Contents:
1. A motion that clearly states the claims or defenses, or the parts of claims or
defenses, for which summary judgment is sought.
2. A statement of proposed findings of fact that includes all facts needed to sustain
the motion.
3. Evidentiary materials that support the proposed facts (see infra I.C.).
4. A supporting brief. Your brief is the place to make your legal argument, not the
place to introduce facts into the record. However, you may find it helpful to
include a concise overview of the background facts of the dispute. When you
finish the brief, you should confirm that all the dispositive facts that you rely on
are stated in the proposed findings of fact document.
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B. Proposed findings of fact
1. The statement of proposed findings of fact must include all facts necessary to
sustain the motion for summary judgment, including facts relating to jurisdiction
and the identity of the parties. The court will not consider facts contained only
in a brief. Think of your proposed findings of fact as telling a story to someone
who knows nothing of the controversy. Strive to present the proposed findings
of fact in an order that makes sense.
2. A party must propose each fact in a separate, numbered paragraph, limited to a
single factual proposition. Proposed facts should not contain argument.
3. Each factual proposition must be followed by a reference to evidence supporting
the proposed fact. The citation must identify where in the record the evidence
is located. If a party cites an affidavit of a witness who has submitted multiple
affidavits or the deposition of a witness who has been deposed multiple times,
then the citation must include the date that the document was created. Where
possible, include the docket number. For example:
1. Plaintiff Smith bought six Holstein calves on July 11, 2006.
Dkt. 56, Harold Smith Affidavit, Jan. 6, 2007, p.1, ¶ 3.
4. Documents at issue in the case (e.g., patents, contracts, insurance policies, etc.)
should be placed into the summary judgment record with a single proposed fact.
For example:
1. The contract between Smith and Jones is attached as Exhibit 1
to the Smith Affidavit, Dkt. 56.
Do not propose multiple facts restating the individual provisions of the
document. Do not propose facts stating your argument about the meaning of
the document.
C. Evidence
1. As noted in I.B., a party must support each proposed finding of fact with
admissible evidence. The court will not search the record for evidence. Where
possible, provide the docket number for the supporting evidence.
2. A proposed fact can be supported with any of the following evidence:
a. Depositions. Give the name of the witness, the date of the
deposition, and page of the transcript of cited deposition
testimony.
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b. Answers to Interrogatories. State the number of the
interrogatory and the party answering it.
c. Admissions made pursuant to Federal Rule of Civil Procedure
36. State the number of the requested admission and the
identity of the party to whom it was directed; or
d. Other Admissions. Identify the document, the number of the
page, and paragraph of the document in which that admission
is made.
e. Affidavits. The page and paragraph number, the name of the
affiant, and the date of the affidavit. (Affidavits must be made
by persons who have first-hand knowledge and must show that
the person making the affidavit is able to testify about those
facts.)
f. Documentary evidence that is shown to be true and correct,
either by an affidavit or by stipulation of the parties. (State
exhibit number, page, and paragraph.)
II. The response to a motion for summary judgment
A. Contents:
1. A brief in opposition to the motion for summary judgment.
2. A response to each of the moving party’s proposed findings of fact.
3. If necessary, additional proposed findings of fact needed to oppose the motion.
4. Evidentiary materials cited in the response to the moving party’s facts or in the
additional facts proposed by the non-moving party.
B. If the responding party proposes its own findings of fact, it should follow the
procedure in I.B. and I.C. above. The purpose of additional proposed findings of
fact is to supplement the moving party’s proposed findings of fact, not to dispute the
facts proposed by the moving party. Even if the responding party files additional
proposed findings of fact, it must also respond to each of the moving party’s
proposed findings of fact.
C. The court will find a proposed fact is undisputed unless the responding party
properly disputes it and either identifies contradictory evidence in the record or
demonstrates that the proponent of the fact does not have admissible evidence to
support it.
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D. Responses to the moving party’s proposed findings of fact
1. Answer each numbered fact proposed by the moving party in separate
paragraphs, using the same number. The responding party should repeat verbatim
the moving party’s proposed fact and then respond to it. The court encourages
parties to provide the opposing side with courtesy Word versions of their
proposed findings of fact to facilitate responses.
2. All responses should be succinctly stated.
3. State clearly whether the fact is disputed or undisputed. If you dispute a proposed
fact, state your version of the fact and cite evidence that supports that version.
For example:
1. Plaintiff Smith bought six Holstein calves from Dell’s Dairy
Farm on July 11, 2006. Dkt. 56, Harold Smith Affidavit, Jan.
6, 2007, p.1, ¶ 3.
Response: Disputed. The purchase Smith made from Dell’s
Dairy Farm on July 11, 2006, was for one Black Angus bull.
Dkt. 72, John Dell Affidavit, Feb. 1, 2007, Exh. A.
You may state your version of a proposed fact, but do not respond to proposed
facts with additional facts that are not directly responsive to the proposed fact.
The court will disregard any new facts that are not directly responsive to the
proposed fact. If a responding party believes that more facts are necessary to
tell its side of the story, it should include those facts in its own proposed facts,
as discussed in II.B.
4. You may also dispute a fact on the grounds that the cited evidence does not
support the proposed fact with admissible evidence. For example:
1. The Smith farm maintains high standards of animal health and
nutrition. Dkt. 57, John Johnson Affidavit, Jan. 12, 2007, p.1,
¶ 5.
Response: Disputed. The Johnson Affidavit is inadmissible
because it is not based on personal knowledge. John Johnson
is plaintiff’s attorney, and he does not have personal
knowledge of the operation of the Smith farm.
5. Your response to a proposed fact may also indicate that the proposed fact is
immaterial. For example:
1. The Smith farm maintains high standards of animal health and
nutrition. John Johnson Affidavit, Jan. 12, 2007, p.1, ¶ 5.
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Response: Undisputed, but immaterial.
You may state that a fact is immaterial, but do not respond to proposed facts
with arguments on the merits. Make your argument in your brief.
E. Evidence
Every factual proposition, whether made in support of or opposition to, a motion
for summary judgment must be supported by admissible evidence. The court will
not search the record for evidence. Supporting evidence should be clearly cited
and submitted as described in I.C.2.
III. The reply by the moving party
A. Contents:
1. A reply to each numbered factual statement made by the responding party in
response to the moving party’s proposed findings of fact, with cites to
evidentiary materials.
2. A response to each additional numbered factual statement proposed by the
responding party, if any, with cites to evidentiary materials.
3. A reply brief.
4. Evidentiary materials (see supra I.C.)
B. Replies should be succinctly stated. If the response to a fact is “undisputed,” the
reply should also state “undisputed.” If you contend that despite a response of
“disputed,” the non-moving party has failed to raise a genuine dispute of material
fact, you should succinctly state why. For example:
1. Plaintiff Smith bought six Holstein calves from Dell’s Dairy
Farm on July 11, 2006. Dkt. 56, Harold Smith Affidavit, Jan.
6, 2007, p.1, ¶ 3.
Response: Disputed. The purchase price for the calves was
not for fair market value. Dkt. 72, John Dell Affidavit, Feb.
1, 2007, p.1, ¶ 4.
Reply: Undisputed. The response asserts an
immaterial fact, but it raises no dispute of the
proposed fact.
C. If the responding party has filed additional proposed findings of fact, the moving
party should file its response to those proposed facts at the same time as its reply,
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following the procedure in II.D.
D. When the moving party replies to the responses to the moving party’s original
proposed findings of fact, the moving party must repeat verbatim the entire
sequence associated with each proposed finding of fact. In other words, the reply
document is a self-contained history of all proposed facts, responses, and replies.
Likewise, the moving party’s response to the supplemental facts proposed by the
non-moving party should also be a self-contained history of those proposed facts
with responses. Again, the court encourages parties to provide the opposing side
with courtesy Word versions of their responses to proposed findings of fact to
facilitate replies.
IV. Sur-replies
A party may not file a sur-reply without first obtaining permission from the court.
The court permits sur-replies only in rare, unusual situations.
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The charts below identify the materials that each party must submit in support of or
in opposition to a motion for summary judgment.
If only one party moves for summary judgment:
Deadline for dispositive Deadline for response Deadline for reply
motions
The moving party files: The moving party does not file The moving party files:
anything
• motion for summary judgment • brief in reply
• brief in support • reply to the response to its
• statement of proposed proposed findings of fact
findings of fact • response to any supplemental
• supporting evidence proposed findings of fact
• supporting evidence
The non-moving party does not The non-moving party files: The non-moving party does not
file anything file anything
• brief in opposition
• response to the moving party’s
proposed findings of fact
• supplemental proposed
findings of fact (optional)
• supporting evidence
If both parties move for summary judgment:
Deadline for dispositive Deadline for response Deadline for reply
motions
The plaintiff files: The plaintiff files: The plaintiff files:
• motion for summary judgment • brief in opposition to the • brief in reply to its motion
• brief in support defendant’s motion • reply to the response to its
• statement of proposed • response to the defendant’s proposed findings of fact
findings of fact proposed findings of fact • response to any supplemental
• supporting evidence • supplemental proposed proposed findings of fact
findings of fact (optional) • supporting evidence
• supporting evidence
The defendant files: The defendant files: The defendant files:
• motion for summary judgment • brief in opposition to the • brief in reply to its motion
• brief in support plaintiff’s motion • reply to the response to its
• statement of proposed • response to the plaintiff’s proposed findings of fact
findings of fact proposed findings of fact • response to any supplemental
• supporting evidence • supplemental proposed proposed findings of fact
findings of fact (optional) • supporting evidence
• supporting evidence
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GUIDANCE TO PRO SE LITIGANTS REGARDING
MOTIONS FOR SUMMARY JUDGMENT
This court expects all litigants, including persons representing themselves, to follow this
court’s procedures on motions for summary judgment. If a party does not follow the
procedures, there will be no second chance to do so. The following is a list of mistakes
that pro se plaintiffs tend to make when opposing a motion for summary judgment:
1. Problem: The plaintiff does not answer the defendant’s proposed facts correctly.
Solution: To answer correctly, the plaintiff must file a document titled “Response
to Defendant’s Proposed Findings of Fact.” In this document, the plaintiff must
answer each numbered fact that the defendant proposes, using separate
paragraphs that have the same numbers as defendant’s paragraphs. See II.D. If
the plaintiff does not object to a fact that the defendant proposes, he should
answer “Undisputed.”
2. Problem: The plaintiff submits a set of facts without answering the defendant’s
facts.
Solution: II.B. allows the plaintiff to file their own set of proposed facts in
response to the defendant’s motion only if they think they need additional facts
to prove their claim. But even if the plaintiff submits their own set of facts, they
must also respond to the facts proposed by the defendant.
3. Problem: The plaintiff does not tell the court and the defendant where there is
evidence in the record to support their version of a fact.
Solution: The plaintiff must follow II.D.3., which explains how to dispute a
proposed fact. Also, the plaintiff must follow I.B.4., which explains how a new
proposed fact should be written.
4. Problem: The plaintiff supports a fact with an exhibit that the court cannot accept
as evidence because it is not authenticated.
Solution: I.C. explains what may be submitted as evidence. A copy of a document
will not be accepted as evidence unless it is authenticated. That means that the
plaintiff, or someone else who has personal knowledge of what the document is,
must declare under penalty of perjury in a separate affidavit that the document
is a true and correct copy of what it appears to be. For example, if the plaintiff
wants to support a proposed fact with evidence that they received a conduct
report, they must submit a copy of the conduct report, together with an affidavit
in which the plaintiff declares under penalty of perjury that the copy is a true
and unaltered copy of the conduct report they received on such and such a date.
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JURY TRIALS
The following procedures govern jury trials conducted before Judge Boor. Note that
these procedures implicate final pretrial filings.
The preliminary pretrial conference order tells the parties what documents must be
submitted for the final pretrial conference and what the deadlines are for submitting
them. The court’s standard voir dire questions and standard jury instructions are
attached to this order and those will generally be asked and given in every case. The
parties should not duplicate the standard questions or instructions.
A. Final Pretrial Filings
On or before the date identified in the Preliminary Pretrial Conference Order as the
First Final Pretrial Conference, the parties shall provide opposing counsel and the court:
1. Rule 26(a)(3) disclosures.
2. Motions in limine.
3. Exhibit lists. Exhibits used only for impeachment and refreshing recollection need
not be listed, but any exhibits not listed shall be excluded from admission into
evidence except upon good cause shown. Please refer to the Procedures for Trial
Exhibits and use the Trial Exhibit Form provided. If the exhibit list exceeds 100
exhibits, the parties should designate exhibits by “will use” and “may use” to
expedite pre-trial review of objections.
4. A list of portions of depositions, to be offered into evidence at trial, by page and
line, for witnesses unavailable at trial.
5. Suggested additional voir dire questions, if any. The parties should not duplicate
the standard questions.
6. Proposed verdict forms.
7. Suggested additional jury instructions. In submitting proposed jury instructions,
the parties shall follow the procedure below. Parties may submit briefs in support
of their proposed jury instructions.
B. Responses
By the response deadline set in the Preliminary Pretrial Conference Order, the parties
shall provide opposing counsel and the court:
1. Responses to motions in limine.
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2. Objections to the opposing party’s designated exhibits on the trial exhibit list
submitted by the opposing party.
3. Objections and counter designations to proffered deposition designations.
4. Responses to opposing parties’ voir dire questions, verdict forms, and jury
instructions.
C. Courtesy Word Versions
In addition to filing the required materials on the docket, parties must submit electronic
copies of any proposed additional voir dire questions, proposed special verdict forms,
and proposed jury instructions by emailing them in Word format to chambers at
[email protected]. The subject line of the email sent to chambers must
include the case number and the phrase “Final Pretrial Submissions.”
Proposed jury instructions shall be submitted in the following form:
1. A party must request pattern instructions by referring to the source (e.g., court’s
standard instruction or Devitt & Blackmar, § 18.01). The court generally prefers
to use the Seventh Circuit’s pattern instructions whenever possible.
2. The email version of a party’s proposed instructions must be formatted as
follows: Special instructions or pattern instructions, whether modified or not,
must be presented double-spaced with one instruction per page, and each
instruction shall cite the pattern instruction, decision, statute, regulation or
other authority supporting the proposition stated with any additions underlined
and any deletions in strikethrough.
3. The court may refuse to entertain voir dire questions, special verdict forms, or
jury instructions that a party does not submit in accordance with these
procedures, unless the subject of the request arises during trial and could not
reasonably have been anticipated prior to trial.
D. Attendance at Final Pretrial Conference
Each party must be represented at the final pretrial conference by the lawyer who will
try the case, unless the party is proceeding pro se, in which case the pro se party must
appear. A party represented by counsel shall also be present in person unless:
1. Counsel has been delegated the full authority to settle the case; or
2. Attendance in person is impossible and arrangements are made for
communication by telephone during the entire duration of the conference for
the purpose of acting upon settlement proposals.
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BENCH TRIALS
The following procedures govern bench trials conducted before Judge Boor. Note that
these procedures implicate final pretrial filings.
A. Meet and Confer Requirement
Sufficiently prior to the first submission deadline for the final pretrial conference (set
forth in the preliminary pretrial conference order), the parties must meet and confer
to complete these tasks:
1. To prepare written stipulations of uncontested facts to be offered
at trial as the first evidence presented by the party desiring to offer
those facts. If a party objects to the admissibility of some
uncontested facts that one party wishes to include, then the name
of the party objecting and the grounds for objection must be stated.
2. To prepare written stipulations setting forth the qualifications of
expert witnesses. (This is not a requirement that the parties
stipulate that any expert is specifically qualified to offer expert
opinion in the case)
3. To examine, mark, and list all exhibits that any party intends to
offer at trial.
4. To agree as to the authenticity and admissibility of such exhibits
so far as possible and note the grounds for objection to any not
agreed upon.
5. To agree so far as possible on the issues of law
6. To prepare a list of all depositions and portions of depositions (cited by page and
line) to be admitted into evidence. If a party objects to the admissibility of any
portion, then the name of the party objecting and the grounds for objection must
be stated.
Plaintiff’s counsel must convene the conference between counsel and prepare
and submit the Joint Pretrial Statement described in B(1) of this procedure. If plaintiff
is proceeding pro se, then defendant’s counsel must perform these tasks unless the
defendant requests to be excused and the court grants this request. A party’s failure to
cooperate in this process is sanctionable by the court.
B. Final Pretrial Filings
These documents must be filed not later than the first submission deadline for the
final pretrial conference:
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1. Plaintiff’s counsel shall submit a Joint Pretrial Statement containing the following
information:
a. The parties’ written stipulation(s) of uncontested
facts.
b. The probable length of trial. If the parties cannot
agree, then each side shall report its estimate of the
length of its case-in-chief exclusive of cross-
examination.
c. A list of the names of all prospective witnesses for all
parties, sorted by party. Only listed witnesses will be
permitted to testify at trial except for good cause
shown.
d. The parties’ written stipulation(s) setting forth the
qualifications of all expert witnesses.
e. Lists of all exhibits that will be offered in evidence at
trial, together with an indication of those agreed to be
admissible and a summary statement of the ground(s)
for objection to exhibits on which the parties do not
agree. Only exhibits so listed shall be offered in
evidence at the trial except for good cause shown.
f. A statement listing any contested issues of law.
g. A list of all depositions and portions of depositions
(cited by page and line) to be offered in evidence.
2. Each party (or group of aligned parties) shall file:
a. A statement, in numbered paragraph form, of all facts that
it will request the court to find at the conclusion of the
trial. In preparing these statements, counsel should have
in mind those findings that will support a judgment in
their client’s favor. The proposed findings should be
complete. They should be organized in the manner in
which counsel wish them to be entered. They should
include stipulated facts, as well as facts not stipulated to,
but which counsel expect to be supported by the record at
the conclusion of the trial. Those facts that are stipulated
to shall be so marked.
b. Its proposed form of special verdict, as if the case were to
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be tried to a jury.
c. All motions in limine, including Daubert motions (unless
the schedule provides an earlier deadline for Daubert
motions).
d. If there are contested issues of law reported pursuant to
B(1)(f) of this procedure, then each side must present a
brief explanation supporting its position on disputed
issues of law.
e. If there are disputes regarding deposition designations, a
brief explanation of the party’s position regarding the
disputes.
f. Any party may choose to file a trial brief. This is optional.
Each party (or group of aligned parties) must file these documents not later than the
second submission deadline for the final pretrial conference:
1. Brief responses to the statement of facts and proposed form of
special verdict offered by its opponent(s), simply flagging the
disputes. Note that objections to exhibits must be flagged on the
exhibit list(s) submitted with the Joint Pretrial Statement.
2. Responses to its opponent’s motions in limine and Daubert
challenges.
3. A response to its opponent’s explanation regarding contested
issues of law offered pursuant to B(2)(d) of this procedure.
4. A response to its opponent’s explanation regarding deposition
disputes offered pursuant to B(2)(e) of this procedure.
5. A response to any trial brief submitted by its opponent.
C. Final Pretrial Conference
At the final pretrial conference, each party shall be represented by the lawyer who will
actually try the case unless the party is proceeding pro se, in which case the pro se party
must appear.
D. Trial Exhibits
Following the final pretrial conference, not later than the deadline set by the presiding
judge, each party shall submit to the court a complete set of its pre-marked trial exhibits
in electronic form pursuant to the court’s procedures.
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TRIAL EXHIBITS
Pursuant to Federal Rule of Civil Procedure 26, the parties must file copies of their
pretrial disclosures with the court. Exhibits for use at trial should not be docketed
electronically. Counsel should use the form below to list their exhibits (a blank copy of
the form is available on the court’s website). Counsel are to retain the original exhibits
following trial.
1. Each party is to label all of its exhibits.
2. Each party is to submit a list of its exhibits. The party should identify the
witness(es) during whose testimony the exhibit will be offered into evidence, the
number of each exhibit, and a brief description.
3. Objections to exhibits must be raised as part of a party’s response to its
opponent’s pretrial disclosures. In addition to any brief, the objecting party must
file a new copy of its opponent’s list of exhibits, and the objecting party must
complete the column for objections by adding a very short statement describing
its objection.
4. Before the start of trial, each party is to provide the clerk’s office with an exhibit
list and electronic copies of their trial exhibits per the court’s procedures. Unless
otherwise directed by the court, each party must submit copies of its trial
exhibits by 4:00 p.m. on the business day before the first day of trial (note that
in many cases, this may be a Friday).
5. As a general rule, the plaintiff should use exhibit numbers 1-500 and the
defendant should use exhibit numbers 501 and up. If the parties can agree on a
different, logical convention for numbering exhibits, then they are free to do so.
6. Each party is to maintain custody of its own exhibits throughout the trial.
Counsel are to keep track of which exhibits have been admitted into evidence.
7. At the end of trial, each party is to retain all exhibits that become a part of the
record. It is each party’s responsibility to maintain its exhibits and to make
arrangements with the clerk’s office to include these exhibits in the appeal
record.
8. Once reference is made to an exhibit at trial, the exhibit becomes part of the
record, even though the exhibit might not be formally offered or might not be
received.
Questions about these instructions may be directed to the clerk’s office at (608) 264-
5156.
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TRIAL EXHIBIT
FORM
EXHIBIT (S) OF
(Indicate plaintiff or defendant) v. Case No.
Identification Description Offers, Objections,
Doc. No. Witness Rulings, Exceptions
Date
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STANDARD VOIR DIRE QUESTIONS
1. Have any of you ever heard of this case before today? Follow up at sidebar.
2. The trial of this case will begin and will last probably days, finishing on .
Are any of you unable to serve as a juror during this time?
Knowledge of parties and others
3. Ask counsel to stand and tell the jury where they practice and with whom. Ask
panel whether anyone knows counsel or their associates or partners.
4. Ask counsel to introduce the parties. Ask panel whether anyone knows the
parties.
5. The witnesses in the case may include the following individuals. (Read list of
witnesses.) Do any of you know any of the witnesses?
6. Do any of you know the judge or court personnel?
7. Do any of you know any of the other persons on the jury panel?
Questions to each prospective juror (listed on a sheet provided to jurors):
Please stand up and tell us about yourself:
8. Name, age, and city or town of residence.
9. How long have you lived in your current hometown?
10. Marital status and number of children, if any.
11. Current occupation (former if retired).
12. Current (or former) occupation of your spouse, domestic partner, or significant
other.
13. If you have adult children, what do they do?
14. Any military service, including branch, rank and approximate date of discharge.
15. How far you went in school and major areas of study, if any.
16. Memberships in any groups or organizations. Do you hold leadership positions
in these groups?
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17. Hobbies and leisure-time activities.
18. Media consumption. What are your favorite types of reading materials, what
sources do you use for news, what types of television or radio shows do you watch
or listen to, what types of websites do you visit?
19. Have you ever written a letter to the editor in a newspaper or magazine?
20. Do you have any bumper stickers on your car? If so, what do they say or depict?
Litigation experience and opinions
21. Have you, a relative, or a close friend been a party to a lawsuit?
22. Have you, a relative, or a close friend ever been a witness in a lawsuit?
23. Have you, a relative, or a close friend served on a jury? Follow up: nature of the
case; find for plaintiff or defendant; were you the foreperson?
24. Do you have strong opinions, whether positive or negative, about people who go
to court to obtain relief for wrongs they believe they have suffered?
Specialized knowledge or experience
[case-specific questions]
Conclusion
25. At the end of the case, I will give you instructions that will govern your
deliberations. You are required to follow those instructions, even if you do not
agree with them. Is there any one of you who would be unable or unwilling to
follow my instructions?
26. Do you know of any reason whatsoever why you could not sit as a trial juror
with absolute impartiality to all the parties in this case?
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STANDARD CIVIL JURY INSTRUCTIONS
Members of the jury, we are about to begin the trial of the case. Before it begins,
I will give you some instructions to help you understand how the trial will proceed, how
you should evaluate the evidence, and how you should conduct yourselves during the
trial.
The party who begins the lawsuit is called the plaintiff. In this case, the plaintiff is ___.
The party against whom the suit is brought is called the defendant. In this case, the
defendant is ___. [Describe the nature of the case and each party’s claims and defenses.]
CONDUCT OF THE CASE
The case will proceed as follows:
First, plaintiff’s counsel will make an opening statement outlining plaintiff’s case.
Immediately after plaintiff’s statement, defendant’s counsel will also make an opening
statement outlining defendant’s case. What is said in opening statements is not
evidence; it is simply a guide to help you understand what each party expects the
evidence to show.
Second, after the opening statements, the plaintiff will introduce evidence in
support of his claim. At the conclusion of the plaintiff’s case, the defendant may
introduce evidence. And, finally, the plaintiff may choose to introduce rebuttal
evidence.
Third, after the evidence is presented, the parties will make closing arguments
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explaining what they believe the evidence has shown and what inferences you should
draw from the evidence. What is said in closing argument is not evidence. Plaintiff
will make the first closing argument and can make a short rebuttal argument after the
defendant’s closing argument.
Fourth, I will instruct you on the law that you are to apply in reaching your
verdict. I will give you copies of all my instructions, including these instructions that I
am reading now, so you will have them in writing when you deliberate.
Fifth, you will retire to the jury room and conduct your deliberations.
The trial day will run from 9:00 a.m. until 5:30 p.m. Usually, you will have at
least an hour for lunch and two additional short breaks, one in the morning and one in
the afternoon. Sometimes I will have to adjust this schedule to take care of something
in another case, so we will be somewhat flexible. The courtroom is often kept at a cold
temperature; I encourage you to bring clothing that will keep you comfortable in a
range of conditions
During recesses you should keep in mind the following instructions:
First, do not discuss the case either among yourselves or with anyone else during
the course of the trial. I realize that this case is the one thing you all have in common,
but you must not talk about it, even amongst yourselves, until it is time to deliberate.
Once you express an opinion, there is a natural tendency to defend it, and this might
make you resist changing your mind. The parties to this lawsuit have a right to expect
from you that you will keep an open mind throughout the trial. You should not reach
a conclusion until you have heard all of the evidence and you have heard the lawyers’
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closing arguments and my instructions to you on the law, and you have retired to
deliberate with the other members of the jury. I must warn you, in particular, against
commenting about the trial in an email or a blog or on Twitter or any social media
website. There are cases that have had to be re-tried because a member of the jury
communicated electronically about the case during the trial. You can imagine what
this would mean in the cost of a re-trial, the inconvenience to your fellow jurors whose
work would have been done for nothing, and the stress experienced by the parties.
Second, do not permit any third person to discuss the case in your presence. If
anyone tries to talk to you despite your telling them not to, report that fact to the court
as soon as you are able. Do not discuss the event with your fellow jurors or discuss
with them any other fact that you believe you should bring to the attention of the
court.
Third, although it is a normal human tendency to converse with people with
whom one is thrown into contact, please do not talk to any of the parties or their
attorneys or witnesses. By this I mean not only do not talk about the case, but do not
talk at all, even to pass the time of day. If one of the attorneys or witnesses passes by
without talking to you, they are not being rude; they are simply following my
instructions. In no other way can all parties be assured of the absolute impartiality
that they are entitled to expect from you as jurors.
Fourth, do not read about the case in the newspapers, or listen to radio or
television broadcasts about the trial. If a newspaper headline catches your eye, do not
examine the article further. Media accounts may be inaccurate and may contain
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matters that are not proper for your consideration. You must base your verdict solely
on the evidence presented in court.
Fifth, no matter how interested you may become in the facts of the case, you
must not do any independent research, investigation, or experimentation. Do not look
up materials on the internet or in other sources. Again, you must base your verdict
solely on the evidence presented in court.
HEARING THE
EVIDENCE
Evidence
Evidence at a trial includes the sworn testimony of the witnesses, exhibits that
are offered and accepted by the court, facts stipulated by counsel on both sides, and
facts that are judicially noticed. If facts are stipulated or judicially noticed, I will tell
you that. You may consider only the evidence that I admit into the record.
The following things are not evidence: questions and objections of the lawyers,
testimony that I instruct you to disregard, and anything you may see or hear when the
court is not in session, even if what you see or hear is done or said by one of the lawyers,
by the parties, or by one of the witnesses. You should listen carefully to the opening
statements and closing arguments of the lawyers because they help you understand the
evidence. But those statements and arguments by the lawyers are not evidence. You
must decide the case on the evidence only.
Evidence may be either direct or circumstantial. Direct evidence is direct proof
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of a fact, such as testimony by a witness about what the witness said or heard or did.
Circumstantial evidence is proof of one or more facts from which you could infer the
existence of another fact. If the question were whether it was raining on September 1,
direct evidence of this fact would be a witness’s testimony that they were outside and
they saw it raining that day. Circumstantial evidence of the fact that it was raining
would be that people came into a building carrying wet umbrellas that day. You should
consider both types of evidence. Neither direct nor circumstantial evidence is
automatically more persuasive or valuable than the other type. It is up to you to decide
how much weight to give any piece of evidence.
Drawing of Inferences
You are to consider only the evidence in the case. But in your consideration of
the evidence, you are not limited solely to what you see and hear as the witnesses
testify. You are permitted to draw reasonable inferences or conclusions from the facts
that you find have been proved, if such reasonable inferences or conclusions seem
justified in the light of your own experience and common sense.
Burden of Proof
You will hear the term “burden of proof” used during this trial. In simple terms,
the phrase “burden of proof” means that the party who makes a claim has the obligation
of proving that claim. At the end of the case, I will instruct you in detail on the proper
burden of proof to be applied to the issues in this case. But here are the basic burden
of proof concepts that you should bear in mind as you hear the evidence:
[ ] has the burden of providing [ ] by a preponderance of the evidence.
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This means that you must be persuaded by the testimony and exhibits that the matter
sought to be proved is more probably true than not true.
[ ] has the burden of proving [ ] by clear and convincing evidence.
“Clear and convincing” evidence means evidence that convinces you that it is highly
probable that the particular proposition is true.
Credibility of Witnesses
In deciding the facts, you may have to decide which testimony to believe and
which testimony not to believe. You may believe everything a witness says, part of it,
or none of it. In considering the testimony of any witness, you may take into account
many factors, including the witness’s opportunity and ability to see or hear or know
the things the witness testifies about; the quality of the witness’s memory; the witness’s
appearance and manner while testifying; the witness’s interest in the outcome of the
case; any bias or prejudice the witness may have; other evidence that may have
contradicted the witness’s testimony; and the reasonableness of the witness’s testimony
in light of all the evidence. The weight of the evidence does not necessarily depend
upon the number of witnesses who testify.
Contradictory or Impeaching Evidence
A witness may be discredited by contradictory evidence or by evidence that at
some other time the witness has said or done something, or has failed to say or do
something, that is inconsistent with the witness’s present testimony.
If you believe any witness has been discredited, it is up to you to decide how
much of the testimony of that witness you believe.
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If a witness is shown to have given false testimony knowingly, that is, voluntarily
and intentionally, about any important matter, you have a right to distrust the witness’s
testimony about other matters. You may reject all the testimony of that witness, or
you may choose to believe some or all of it.
The general rule is that if you find that a witness said something before the trial
that is different from what the witness said at trial, you are to consider the earlier
statements only as an aid in evaluating the truthfulness of the witness’s testimony at
trial. You cannot consider as evidence in this trial what was said before the trial began.
There is an exception to this general rule for witnesses who are the actual parties
in the case, or who are the employees or agents of the parties. If you find that any of
the parties, or employees or agents of the parties, made statements before the trial
began that are different from the statements they made at trial, you may consider as
evidence in the case whichever statement you find more believable.
Experts
A person’s training and experience may make him or her a true expert in a
technical field. The law allows that person to state an opinion here about matters in
that particular field. It is up to you to decide whether you believe the expert’s
testimony and choose to rely upon it. Part of that decision will depend on your
judgment about whether the expert’s background of training and experience is
sufficient for him or her to give the expert opinion that you heard, and whether the
expert’s opinions are based on sound reasons, judgment, and information.
During the trial, an expert witness may be asked a question based on
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assumptions that certain facts are true and then asked for his or her opinion based
upon that assumption. Such an opinion is of use to you only if the opinion is based
on assumed facts that are proven later. If you find that the assumptions stated in the
question have not been proven, then you should not give any weight to the answer the
expert gave to the question.
Depositions
During the course of a trial, the lawyers may refer to and read from depositions.
Depositions are recordings or transcripts of testimony taken while the parties are
preparing for trial. Deposition testimony is given under oath just like testimony given
during the trial. You should give it the same consideration you would give it had the
witnesses testified here in court.
Objections
During the trial, you will hear the lawyers make objections to certain questions
or to certain answers of the witnesses. When they do so, it is because they believe the
question or answer is legally improper and they want me to rule on it.
Do not try to guess why the objection is being made or what the answer would
have been if the witness had been allowed to answer it. If I tell you not to consider a
particular statement that has already been made, put that statement out of your mind.
You may not consider or refer to statements I tell you not to consider during your
deliberations.
Questions
During the trial, I may sometimes ask a witness questions. Please do not assume
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that I have any opinion about the subject matter of my questions.
If you wish to ask a question about something you do not understand, write it
down on a separate slip of paper. When the lawyers have finished all of their questions
to the witness, if your question is still unanswered to your satisfaction, raise your hand,
and I will take the written question from you, show it to counsel, and decide whether
it is a question that can be asked. If it cannot, I will tell you that. I will try to remember
to ask about questions after each witness has testified.
Notetaking
If you want to take notes, there are notepads and pencils next to the jury bench.
This does not mean you have to take notes; take notes only if you want to and if you
think they will help you to recall the evidence during your deliberations. Do not let
notetaking interfere with your important duties of listening carefully to all of the
evidence and of evaluating the credibility of the witnesses. Keep in mind that just
because you have written something down it does not mean that the written note is
more accurate than another juror’s mental recollection of the same thing. No one of
you is the “secretary” for the jury, charged with the responsibility of recording evidence.
Each of you is responsible for recalling the testimony and other evidence.
Although you can see that the trial is being recorded by a court reporter, you
should not expect to be able to use trial transcripts in your deliberations. You will have
to rely on your own memories.
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POST-TRIAL INSTRUCTIONS
Introduction
Ladies and Gentlemen of the Jury:
Now that you have heard the evidence and the arguments, I will give you the
instructions that will govern your deliberations in the jury room. It is my job to decide
what rules of law apply to the case and to explain those rules to you.
You have two duties as a jury. Your first duty is to decide the facts from the
evidence in the case. This is your job, and yours alone.
Your second duty is to apply the law that I give you to the facts. You must
follow these instructions, even if you disagree with them. Each of the instructions is
important, and you must follow all of them.
Perform these duties fairly and impartially. Do not allow sympathy, prejudice,
fear, or public opinion to influence you.
The verdict must represent the considered judgment of each juror. Your verdict,
whether for or against any party, must be unanimous. You should make every
reasonable effort to reach a verdict. In doing so, you should consult with one another,
express your own views, and listen to the opinions of your fellow jurors. Discuss your
differences with an open mind. Do not hesitate to reexamine your own views and
change your opinion if you come to believe it is wrong. But you should not surrender
your honest beliefs about the weight or effect of evidence solely because of the opinions
of other jurors or for the purpose of returning a unanimous verdict. All of you should
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give fair and equal consideration to all the evidence and deliberate with the goal of
reaching an agreement that is consistent with the individual judgment of each juror.
You are impartial judges of the facts.
Your deliberations will be secret. You will never have to explain your verdict to
anyone.
If you have formed any idea that I have an opinion about how the case should
be decided, disregard that idea. It is your job, not mine, to decide the facts of this case.
The case will be submitted to you in the form of a special verdict on liability,
consisting of questions. In answering the questions, you should consider only the
evidence that has been received at this trial. Do not concern yourselves with whether
your answers will be favorable to one side or another, or with what the final result of
this lawsuit may be.
Answers Not Based on Guesswork
If, after you have discussed the testimony and all other evidence that bears upon
a particular question, you find that the evidence is so uncertain or inadequate that you
have to guess what the answer should be, then the party with the burden of proof as to
that question has not met the required burden of proof. Your answers are not to be
based on guesswork or speculation. They are to be based upon credible evidence from
which you can find the existence of the facts that the party must prove to satisfy the
burden of proof on the question under consideration.
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[Case-specific: Liability under the governing law]
Preponderance of the Evidence
When I say a particular party must prove something by “a preponderance of the
evidence,” it means that when you have considered all the evidence in the case, you
must be persuaded that it is more probably true than not true.
Clear and Convincing Evidence
When I say that a particular party must prove something by “clear and
convincing evidence,” it means that when you have considered all of the evidence, you
are convinced that it is highly probable that it is true. This is a higher burden of proof
than “more probably true than not true.”
INSTRUCTIONS AFTER CLOSING ARGUMENTS
Selection of Presiding Juror; Communication with the Judge; Verdict
When you go to the jury room to begin considering the evidence in this case you
should first select one of the members of the jury to act as your presiding juror. This
person will help to guide your discussions in the jury room.
You are free to deliberate in any way you decide or select whomever you like as
the presiding juror. When thinking about who should be presiding juror, you may want
to consider the role that a presiding juror usually plays. He or she serves as the
chairperson during the deliberations and has the responsibility of ensuring that all
jurors who desire to speak have a chance to do so before any vote. The presiding juror
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should guide the discussion and encourage all jurors to participate.
Once you are in the jury room, if you need to communicate with me, the
presiding juror will send a written message to me. However, do not tell me how you
stand as to your verdict.
Again, the decision you reach must be unanimous; you must all agree.
Suggestions for Conducting Deliberations:
To help you determine the facts, you may want to consider discussing one
question at a time, and to use my instructions to the jury as a guide to determine
whether there is sufficient evidence to prove all the necessary legal elements for each
question. I also suggest that any public votes on a verdict be delayed until everyone
can have a chance to say what they think without worrying what others on the panel
might think of their opinion. I suggest that you assign separate tasks, such as note
taking, time keeping and recording votes to more than one person to help break up the
workload during your deliberations.
I encourage you at all times to keep an open mind if you ever disagree or come to
conclusions that are different from those of yo ur fellow jurors.
Listening carefully and thinking about the other juror’s point of view may help you
understand that juror’s position better or give you a better way to explain why you
think your position is correct.
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DAMAGES
INSTRUCTIONS
General
On the damages question, you must determine what amount of damages, if any,
plaintiff is entitled to recover. Plaintiff must prove his or her damages by a
preponderance of the evidence.
Your verdict must not be based on guesswork. But the party seeking damages
need not prove the amount of its damages with mathematical precision. In determining
the amount of damages, you must base your answer on evidence that reasonably
supports your determination of damages under all of the circumstances of the case.
You should award as damages the amount of money that you find fairly and reasonably
compensates plaintiff for his or her injuries.
Do not measure damages by what the lawyers ask for in their arguments. Their
opinions as to what damages should be awarded should not influence you unless their
opinions are supported by the evidence. It is your job to determine the amount of the
damages sustained from the evidence you have seen and heard. Examine that evidence
carefully and impartially. Do not add to the damage award or subtract anything from
it because of sympathy to one side or because of hostility to one side. Do not make
any deductions because of a doubt in your minds about the liability of any of the
parties.
Taxes
You must not consider the impact of taxes on your award of damages.
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CALLING WITNESSES TO TRIAL
At trial, plaintiff will have to be ready to prove facts supporting their claims against the
defendants. One way to offer proof is through the testimony of witnesses who have
personal knowledge about the matter being tried. If a party wants witnesses to be
present and available to testify on the day of trial, the party must follow the procedures
explained below. (“Party” means either a plaintiff or a defendant.) These procedures
must be followed whether the witness is a: (1) defendant to be called to testify by a
plaintiff; (2) plaintiff to be called to testify by a defendant; or (3) a person not a party
to the lawsuit to be called to testify by either a plaintiff or a defendant.
Note well: most of these procedures impose deadlines that are four weeks before trial.
I. Incarcerated Witnesses Who Agree to Testify Voluntarily
A. An incarcerated witness who tells a party that he is willing to attend trial to give
testimony cannot come to court unless the court orders his custodian to let him
come. The Court must issue an order known as a writ of habeas corpus ad
testificandum. This court will not issue such a writ unless the party can establish
to the court’s satisfaction that:
1. The witness has agreed to attend voluntarily; and
2. The witness has actual knowledge of facts directly related to the issue to be tried.
B. A witness’s willingness to come to court as a witness can be shown in one of two
ways:
1. The party can serve and file an affidavit declaring under penalty of perjury that
the witness told the party that he or she is willing to testify voluntarily, that is,
without being subpoenaed. The party must say in the affidavit when and where
the witness informed the party of this willingness; or
2. The party can serve and file an affidavit in which the witness declares under
penalty of perjury that he or she is willing to testify without being subpoenaed.
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C. The witness’s actual knowledge of relevant facts may be shown in one of two ways:
1. The party can declare under penalty of perjury that the witness has relevant
information about the party’s claim. However, this can be done only if the party
knows first-hand that the witness saw or heard something that will help him
prove his case. For example, if the trial is about an incident that happened in
or around a plaintiff’s cell and, at the time, the plaintiff saw that a cellmate was
present and witnessed the incident, the plaintiff may tell the court in an affidavit
what happened, when and where the incident occurred, who was present, and
how the witness was in a position to see or hear what occurred; or
2. The party can serve and file an affidavit in which the witness tells the court what
happened, when and where the incident occurred, who was present, and how
the witness was in a position to see or hear what occurred.
D. Not later than four weeks before trial, a party planning to use the testimony of an
incarcerated witness who has agreed to come to trial must serve and file a written
motion for a court order requiring the witness to be brought to court at the time of
trial. The motion must:
1. State the name and address of the witness; and
2. Come with an affidavit described above to show that the witness is willing to
testify and that the witness has first-hand knowledge of facts directly related to
the issue to be tried.
E. When the court rules on the motion, it will say who must be brought to court and
will direct the clerk of court to prepare the necessary writ of habeas corpus ad
testificandum.
II. Incarcerated Witnesses Who Refuse to Testify Voluntarily
A. If an incarcerated witness refuses to attend trial, two separate procedures are
required
1. The court will have to issue a writ of habeas corpus ad testificandum telling the
warden to bring the witness to trial; and
2. The party must serve the witness with a subpoena.
B. Not later than four weeks before trial, the party seeking the testimony of an
incarcerated witness who refuses to testify voluntarily must file a motion asking the
court to:
1. Issue a writ of habeas corpus ad testificandum; and
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2. Provide the party with a subpoena form. (All requests for subpoenas from pro se
litigants will be sent to the judge for review before the clerk will issue them.)
C. The motion for a writ of habeas corpus ad testificandum will not be granted unless
the party submits an affidavit:
1. Giving the name and address of the witness; and
2. Declaring under penalty of perjury that the witness has relevant information
about the party’s claim. As noted above, this can be done only if the party knows
first-hand that the witness saw or heard something that will help him prove his
case. In the affidavit, the party must tell the court what happened, when and
where the incident occurred, who was present, and how the witness was in a
position to see or to hear what occurred.
D. The request for a subpoena form will not be granted unless the party satisfies the
court in his affidavit that the witness refuses to testify voluntarily and one of the
following:
1. The party has made arrangements for a person at least 18 years of age who is
not a party to the action to serve the subpoena on the witness; or
2. The party is proceeding in forma pauperis, has been unable to arrange for service
of the subpoena by a person at least 18 years of age who is not a party to the
action and needs assistance from the United States Marshal or a person
appointed by the court.
E. If the court grants the party’s request for a subpoena for an incarcerated witness, it
will be the party’s responsibility to complete the subpoena form and send it to the
person at least 18 years of age who will be serving the subpoena or to the United
States Marshal, if the court has ordered that the subpoena be served by the Marshal.
The address of the United States Marshal is 120 N. Henry St., Suite 440, Madison,
Wisconsin, 53703. If the subpoena is not received by the marshal at least two
weeks in advance of trial, the marshal may not have enough time to serve the
subpoena on the party’s witness.
III. Unincarcerated Witnesses Who Agree to Testify Voluntarily
A. It is the responsibility of the party who has asked an unincarcerated witness to come
to court to tell the witness of the time and date of trial. No action need be sought
or obtained from the court.
IV. Unincarcerated Witnesses Who Refuse to Testify Voluntarily
A. If a prospective witness is not incarcerated, and he or she refuses to testify
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voluntarily, no later than four weeks before trial, the party must serve and file a
request for a subpoena form. All parties who want to subpoena an unincarcerated
witness, even parties proceeding in forma pauperis, must be prepared to tender an
appropriate sum of money to the witness at the time the subpoena is served. The
appropriate sum of money is a daily witness fee and the witness’s mileage costs. In
addition, if the witness’s attendance is required for more than one trial day, an
allowance for a room and meals must be paid. The current rates for daily witness
fees, mileage costs and room and meals may be obtained either by writing to the
clerk of court at 120 North Henry Street, Room 320, Madison, Wisconsin, 53703,
or by calling the office of the clerk at (608) 264-5156. Otherwise, the statutory
reference for the witness fees is 28 U.S.C. § 1821, and the mileage fee is calculated
using the current IRS mileage rate. For calculating the hotel room and meal rate,
you may visit the General Services Administration’s (GSA) website at www.gsa.gov
and clicking on “Per Diem Rates.”
B. Before the court will grant a request for a subpoena form for an unincarcerated
witness, the party must satisfy the court by affidavit declared to be true under
penalty of perjury that:
1. The witness refuses to testify voluntarily;
2. The party either:
• has made arrangements for a person at least 18 years of age who is not
a party to the action to serve the subpoena on the witness; or
• is proceeding in forma pauperis, has been unable to arrange for service
of the subpoena by a person at least 18 years of age who is not a party
to the action and needs assistance from the United States Marshal;
and
3. The party is prepared to tender to the marshal or other individual serving the
subpoena a check or money order made payable to the witness in an amount
necessary to cover the daily witness fee and the witness’s mileage, as well as
costs for room and meals if the witness’s appearance at trial will require an
overnight stay.
C. If the court grants the party’s request for a subpoena for an unincarcerated
witness, it will be the party’s responsibility to complete the subpoena form and
send it to the person at least 18 years of age who will be serving the subpoena or
to the United States Marshal, if the court has ordered that the subpoena be served
by the marshal, together with the necessary check or money order. The address
of the United States Marshal is 120 N. Henry St., Suite 440, Madison,
Wisconsin, 53703. If the subpoena is not received by the marshal at least two
weeks in advance of trial, the marshal may not have enough time to serve the
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subpoena on the party’s witness.
V. Summary
The chart below may assist in referring you to the section of this paper which
sets forth the appropriate procedure for securing the testimony of witnesses in
your case.
Witnesses
Incarcerated Unincarcerated
Voluntary Involuntary Voluntary Involuntary
A court order that A court order that Nothing need be Pro se parties must
the witness be the witness be sought or obtained obtain an order
brought to court is brought to court and from the court. granting issuance of a
required. Papers a subpoena are subpoena. Papers
are due 4 weeks required. A motion are due four weeks
before trial. must be served & before trial.
filed 4 weeks before Completed forms
trial. Subpoena and fees are due 2
forms must be weeks before trial.
completed 2 weeks
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ATTORNEY FEES
If a party requests attorney fees or costs at any point in this case, the court expects that
party to adequately support its request. Failure to provide adequate support may lead
the court to reduce an award, or to refuse to award fees and costs. The fee claimant
must identify a reasonable number of hours worked, and a reasonable hourly rate. If
the parties agree that the number of hours requested are reasonable, the hourly fee
requested is reasonable, or both, they should so stipulate. A party who opposes a fee
request must state with particularity what aspects of the hours billed or the fee
requested are unreasonable.
A party should include the following in its request for fees and costs:
1. The legal basis for fee-shifting (statute, federal rule, case law, stipulation, etc.).
2. Contemporaneous logs, with separate entries for the hours spent on specific
tasks. Each entry should indicate who performed the work and give a description
of the task.
3. The hourly rate(s) for the attorney(s) and other personnel involved in the case.
4. Affidavits or other statements, usually from an attorney familiar with the billing
practices involved, confirming that the hours have been reviewed for
reasonableness, and that counsel has exercised billing judgment for the number
of hours charged to the client.
5. Affidavits or other statements confirming that the hourly rate(s) are in line with
the market rate for the type of work performed and the amount of experience of
the attorney who performed it. (Note: an affidavit indicating the billing
attorney’s “usual” rate is typically insufficient to establish the market rate.)
6. Other evidence that the total fee charged is reasonable, such as a statement that
the fee was billed to the client and that the client paid the fee, or instances where
courts awarded similar fees for a similar type and amount of work.
7. If necessary, evidence that the client has assigned a statutory right to fees to the
attorney. Requests that do not direct the court to such evidence may result in
the court directing any fees to be paid straight to the client.
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COUNSEL ROOMS DURING TRIAL
We will do our best to provide a room for counsel to use during trial. However, because
the courthouse has a limited number of rooms, we cannot guarantee that an attorney
room will be available. We do not have enough rooms to provide a separate space for
counsel to eat lunch.
To ensure fairness, counsel rooms will be randomly assigned the Wednesday before a
trial is scheduled to start. Counsel may request a room by calling (608) 264-5156.
If one party requests a room, we will assign a counsel room to each party in the case.
If there are not enough rooms available for all parties in a case, no party will be
assigned a room.
Cleaning staff will perform routine cleaning tasks in rooms assigned to counsel during
trial. On the day trial is completed, counsel are expected to remove their materials and
leave the room neat and orderly. If the trial ends late in the day and another trial is
not scheduled to begin the next day, counsel may make arrangements to remove their
materials the next morning.
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CONTACTING JURORS
Pursuant to Local Rule 4 (LR 47.2), parties, lawyers, and anyone acting on a party’s
behalf must obtain permission from the trial judge or magistrate judge before
contacting jurors. Requests for permission to contact jurors may be made during the
Final Pretrial Conference, or as soon after trial as practicable.
If the court determines that such communication is appropriate, the clerk’s office will
obtain the phone numbers and email addresses of jurors who are willing to speak to
counsel for the parties. The clerk’s office will then provide this information directly to
counsel. Unless specifically authorized by the court, the parties may not contact jurors
themselves; only counsel may do so. Counsel who receive permission to contact jurors
will be expected to scrupulously observe the rules of professional responsibility when
doing so.
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SETTLEMENTS, STIPULATED DISMISSALS,
AND OTHER DISPOSITIONS OF A CASE
This court takes seriously its obligations under Federal Rule of Civil Procedure 1.
Accordingly, the parties should anticipate that the court will not remove a case from
the trial calendar merely because they have informally settled it; the court expects
parties to file the appropriate stipulation or joint motion to formally terminate the case.
Once a plaintiff files a notice of voluntary dismissal, pursuant to Rule 41(a)(1), the
court will close the case without further action. The parties should be aware that the
court loses jurisdiction of the case after receiving a notice of dismissal with prejudice.
See Dupuy v. McEwen, 495 F.3d 807, 809 (7th Cir. 2007). This precludes the court
from, for example, retaining jurisdiction to enforce a settlement agreement or to enter
further orders.
If parties resolve a case during the weekend before a trial is to begin, they must contact
the Clerk of Court at (608) 354-8004.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
IN RE: STANDING ORDER GOVERNING THE USE ADMINISTRATIVE
AND SUBMISSION OF ELECTRONIC EVIDENCE ORDER 434
1. A party may submit electronic evidence to the court by sharing the evidence with the
court via Box for Federal Government — the preferred method — or by submitting the
evidence on a flash drive. Box for Federal Government is a secure service offered by the
court as an alternative to digital storage devices. Box for Federal Government can be
used to submit documents, spreadsheets, video files, and other kinds of evidence that
cannot be filed in CM/ECF. Questions about Box for Federal Government should be
directed to the clerk's office.
2. Each party shall submit a complete set of its pre-marked trial exhibits at least one week
before the final hearing in a criminal case or the final pretrial conference in a civil case.
A party that uses Box for Federal Government will have "view/upload" rights to its own
folder. Only court users may delete files or view or alter the contents of another party's
folder.
3. Electronic evidence must be submitted in one of the following formats: .pdf, .jpg, .bmp,
.tif, .gif, .avi, .wmv, .wma, .wav, .mpg, .mp3, .mp4 or .3gpp. Zip files and other multi-
file archives are specifically prohibited.
4. The size of individual files shall not exceed 1 gigabyte.
5. Trial exhibits must follow a specific naming convention. A party may be required to
resubmit trial exhibits that are not named as follows:
Case Number_Party Role_Party_Name_Exhibit Number.
For example: 23-cv-123_Defendant_ABC Insurance Company_Exhibit 501
6. Before closing arguments in a jury trial, each party must collect any evidence that it
intends to submit to the jury, including electronic evidence, and must provide that
evidence to the courtroom deputy. Electronic evidence file names must correspond
unambiguously with exhibit numbers used during the trial. Electronic storage devices
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shall contain only evidence that has been approved for the jury and shall not contain
any other files or information.
7. Any request for relief from this order must be presented in a timely motion in limine.
Entered: July 30, 2024.
BY THE COURT:
/s/
_________________________________________
JAMES D. PETERSON
Chief District Judge
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ELECTRONIC FILING
Electronic Case Filing is the standard way of doing business with the District Court in
the Western District of Wisconsin. Effective January 22, 2008, electronic filing is
mandatory in all civil and criminal cases.
Information on electronic filing and the court’s administrative procedures are available
on our website: www.wiwd.uscourts.gov under Local Procedures/Electronic filing
Procedures.
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