Chief Judge Joy Flowers Conti

Transcription

1 Chief Judge Joy Flowers Conti Biography Born: Appointed: 2002 by President George W. Bush. Education: Duquesne University, B.A., 1970; Duquesne University School of Law, J.D., 1973, summa cum laude. Experience prior to appointment: After graduating from law school, Judge Conti served as a law clerk to then Pennsylvania Supreme Court Justice Louis L. Mandrino, before becoming the first woman lawyer to be hired by Kirkpatrick, Lockhart, Johnson & Hutchison (now K&L Gates LLP). In 1976, she left Kirkpatrick to become a member of the faculty of the Duquesne University School of Law, where she received tenure and taught courses in civil procedure, corporations, corporate finance, corporate reorganizations, and bankruptcy. In 1982, she returned to private practice at Kirkpatrick, becoming a partner in In 1996, she moved to Buchanan Ingersoll Professional Corporation (now Buchanan Ingersoll & Rooney PC). She concentrated her practice in bankruptcy, creditors and debtors rights, health care, general corporate, and nonprofit corporation law. Sits in Pittsburgh, Pennsylvania. U.S. Post Office and Courthouse Seventh Avenue and Grant Street Ste. 5250, Courtroom #5A Pittsburgh, PA Telephone: Fax: PRELIMINARY GENERAL MATTERS 1. Correspondence with the Court. Correspondence with the court is disfavored, except to advise the court of the status of something happening in the case, for example, mediation. If a party desires Judge Conti to take some action, the party must file a motion. Judge Conti does not accept letter briefs. 2. Communications with Law Clerks. Parties may communicate with Judge Conti s law clerks about scheduling and other administrative matters. They are not to discuss any substantive legal matter with the law clerks. 5

2 Part I Judges Practices and Procedures 3. Telephone Conferences. Although, generally, Judge Conti prefers that the lawyers in a matter attend all conferences with the court, she will allow attendance by telephone if counsel submits a request and there is a good reason to do so. She will suggest conferences by telephone when they are likely to be brief and a lawyer is from out of town. 4. Oral Arguments and Evidentiary Hearings. Judge Conti schedules oral argument on most substantive motions, particularly motions to dismiss. She, however, generally does not schedule oral argument on motions for summary judgment. If she can dispose of the motion on the record, she will do so. 5. Pro Hac Vice Admissions. Motions for a pro hac vice admission must be made in accordance with the local rules of the Western District. CIVIL CASES Pretrial Procedure 1. Pretrial Conferences. Judge Conti will hold at least four conferences prior to trial: A. An initial Rule 16 conference at which a schedule for all fact discovery will be set. The parties should also be prepared to discuss what issues they anticipate will arise in the case, as well as the prospects for settlement. This conference generally lasts minutes. B. A conference at the close of all fact discovery. The purpose of this conference is to determine what the next stage in the proceedings will be. If fact discovery is not completed, the parties should file a request to extend the date for completion of fact discovery prior to the date of the scheduled conference. If fact discovery is completed, the court will determine whether expert discovery will be required, and if it is, she will set dates for reports to be filed, expert discovery to be completed, objections to experts testimony to be filed, and a presumptive date for a Daubert hearing. She will also determine if a summary judgment motion will be filed and, if it will be, she will also set a briefing schedule, which will either run contemporaneously with expert discovery or, if expert discovery is required before the motion can be filed, after expert discovery is completed. If no summary judgment motion will be filed, Judge Conti will set a date for trial, as well as for the filing of various documents (pretrial statements, joint pretrial stipulation, motions in limine, proposed voir dire, jury instructions, and verdict form) and a pretrial conference. Judge Conti will again broach the subject of settlement at this conference. C. A pretrial conference at which Judge Conti will review with the parties her proposed jury voir dire and preliminary charge. She will also rule on motions in limine, unless they are so voluminous 6

3 Chief Judge Joy Flowers Conti that she feels a separate conference is necessary to address them. By the time of this conference, Judge Conti will have reviewed the parties pretrial submissions and will address with the parties any issues that have arisen in her mind related to them. Again, Judge Conti will discuss settlement with the parties. D. A conference on the date of jury selection, if necessary. At this conference, if there are unresolved issues from the pretrial conference, Judge Conti and the parties will finalize voir dire and resolve any remaining disputes over the preliminary charge and exhibits. Settlement will not be discussed at this time, as Judge Conti expects the parties to settle prior to the jury panel being brought in. Judge Conti may hold other conferences if necessary. 2. Requests for Extensions and Continuances. Parties seeking an extension or continuance must file a written motion, stating why they could not meet the deadlines set by the court and, in the case of extensions of discovery, what discovery remains to be taken and how long it will take. The proposed order accompanying such motions must include the date certain, or a blank space for insertion of the date certain, on which the proposed new deadline falls. If more than one deadline is affected by the requested extension, the proposed order must include all such affected dates. Judge Conti may decide such motions without response because of the court s inherent discretion over scheduling. Generally, she requires good cause to support a request for an extension of a deadline. She is more liberal in granting such motions early in a case and more stringent as the case advances and/or other extensions have been granted. 3. General Motion Practice. Judge Conti has set the following rules relating to motion practice before her. A. Form of Motions. A motion must consist of two documents, stating both the factual and legal grounds for the motion, and a separate brief containing the factual and legal grounds for the request. Evidentiary materials in support of or opposition to a motion should be tabbed and filed as a separate document. If the evidentiary materials are voluminous, that is, more than 25 pages, a courtesy copy of the materials appropriately marked and tabbed should be furnished to the judge s chambers. Only the evidentiary materials that are essential to deciding the motion should be submitted to the court. A proposed order setting forth the specific relief requested must be attached to the motion. B. Form of Responses. The opposing party must file a response to every motion. Unless otherwise directed, the response should be titled in the form of A s Response to B s Motion [for/to]. A brief may be filed with the response. A proposed order must also be attached to the response. 7

4 Part I Judges Practices and Procedures 8 C. Routine or Unopposed Motions. If the non-moving party does not oppose the motion, or the motion is of a type that normally does not implicate the substantial rights of the non-moving party (for example, motion to withdraw as counsel, motion to set a conference, many motions for extension of time), the non-moving party must state so in its response. The court may decide motions that do not implicate the substantial rights of the opposing party without a response, which relieves the non-moving party of the duty to respond. Without such action by the court, however, it is essential that a response be filed for all motions. Letters do not constitute responses on the record. Failure to respond may be deemed as a consent to the motion. D. Motions for Reconsideration. A motion for reconsideration of an order must be filed 28 days from the date the order is entered. Responses must be filed 28 days from the date of service of the motion. E. Deadlines for Responses. a. Responses to motions relating to discovery must be filed 14 days from the date of service of the motion. The court frequently resolves such motions by telephone conference, which the parties may request and which the court also may schedule before any response is required. b. Responses to motions in limine must be filed seven days from the date of service of the motion. c. Responses to motions for summary judgment must be filed 30 days from the date of service of the motion. d. Responses to all other motions must be filed 21 days from the date of service of the motion. F. Joint Motions. Joint or uncontested motions on matters that do not implicate the substantial rights of the parties are encouraged and will be promptly decided. A joint or uncontested motion must state so in its title. Joint motions in cases with more than two parties that have the consent of fewer than all the parties must state so on the first page. Counsel s representation that a motion is joint or consented to is sufficient. G. Page Limits. a. Briefs in support of and opposing discovery motions must be limited to 10 pages. b. Briefs in support of and opposing motions in limine must be limited to five pages. c. Briefs in support of and opposing summary judgment motions must be limited to 20 pages, excluding tables. (i) Every motion for summary judgment and supporting brief, if based on the affirmative proof of facts, must be accompanied by a statement of material facts not in dispute,

5 Chief Judge Joy Flowers Conti which must be a separate document. This statement must contain numbered paragraphs setting forth all the facts supporting the motion that are necessary for its resolution. Each factual assertion must cite to evidentiary material accompanying the motion. The accompanying evidentiary material must be limited to the amount necessary to support the motion. (ii) Every party opposing a motion for summary judgment must file, in addition to its brief in opposition, a response to the moving party s statement of material facts not in dispute, which must be a separate document. In paragraphs corresponding to the statement of material facts not in dispute, the opposing party must state whether the facts listed are admitted or disputed. For any disputed fact, the opposing party must cite to evidentiary material demonstrating the dispute, and attach such evidentiary material to its response. (iii) Parties need not repeat the relevant facts in their briefs, but may do so for clarity. (iv) The argument portion of every brief in support of a motion for summary judgment must, for each claim to be considered, set forth the elements of the claim and cite to current authority for the Court of Appeals for the Third Circuit, if available, that establishes the essential elements of each claim for which the moving party seeks summary judgment. (v) A party s failure to adhere to these requirements may result in the motion for summary judgment being decided against that party s position. d. Briefs in support of and opposing all other motions must be limited to 15 pages. e. All text and footnotes in briefs must be in 12-point fonts, with one-inch margins. Text must be double-spaced; footnotes may be single-spaced. Evasion of these standards or page limits will cause the brief to be stricken from the record or the excess material to be treated as being outside the record without further notice to counsel. f. Counsel and the parties should be aware of the court s experience that shorter briefs are almost always more persuasive because they get to the point faster. They also contain less extraneous material that dilutes the parties main arguments, and frequently interferes with prompt resolution. 9

6 Part I Judges Practices and Procedures 4. Reply Briefs and Surreply Briefs. Except for summary judgment motions, the court discourages reply briefs because they are usually repetitive and, therefore, wasteful. They may be filed only upon leave of court. Reply briefs should state the novel matter contained in the opposition brief that merits a reply and not merely assert that opposing counsel has misstated the law. If allowed, reply briefs are limited to 10 pages unless otherwise ordered by the court. Surreply briefs will be allowed only upon leave of court, should state the novel issue, and not reargue issues already addressed. A surreply brief is limited to 10 pages unless otherwise ordered by the court. 5. Chambers Copies of Motion Papers; Courtesy Copies. Except for voluminous materials, that is, materials in excess of 25 pages, counsel should not submit courtesy copies unless requested by the court. Voluminous materials should be appropriately marked and tabbed prior to submission to the court. 10 Discovery Matters 1. Length of Discovery Period and Extensions. Unless counsel for the parties jointly agree that they require a longer period for discovery and have reasons supporting their request, Judge Conti is inclined to set a 90- to 120-day discovery period. If she allows a longer period, she will advise counsel that they must meet their deadlines, not expect an extension, and, therefore, should schedule depositions early in the period. 2. Discovery Conferences. Judge Conti expects the parties to be able to resolve discovery issues themselves. If they cannot, she will resolve over the telephone discovery disputes that do not require her to review written discovery responses or to issue a written order. Otherwise, the parties must file a written motion and appear before her in person. If Judge Conti is available, she will accept telephone calls from counsel in a deposition in order to resolve a dispute. 3. Confidentiality Agreements. All confidentiality agreements must meet the requirements of the local rules. If such agreements meet these requirements and the parties agree on their contents, Judge Conti will sign them. 4. Expert Witnesses. Judge Conti generally schedules expert discovery and the date for a Daubert hearing, if necessary, after fact discovery; although, if the parties desire to take expert discovery earlier, she will allow it. Settlement 1. General Approach. Judge Conti will discuss settlement in cases that will be tried by a jury. In nonjury matters, she will discuss settlement only if the matter is particularly complex and all parties consent to her partici-

7 Chief Judge Joy Flowers Conti pation. Otherwise, she will refer settlement discussions to a magistrate judge, a lawyer listed on the Western District s alternative dispute resolution (ADR) panel, or the parties may select a private mediator. Judge Conti will not entertain settlement discussions if a dispositive motion is pending before the court. Proposed Final Pretrial Memoranda 1. Required Form of Pretrial Memoranda. Judge Conti follows Local Rule 16.1.C with regard to pretrial statements. Injunctions 1. Scheduling and Expedited Discovery. Judge Conti will schedule an expedited hearing, when required, on requests for injunctive relief. She rarely issues temporary restraining orders without both parties present. If she is not available, motions for a temporary restraining order will be heard by a miscellaneous judge. The court will hear argument on requests for expedited discovery and will order it, if warranted. 2. Proposed Findings of Fact and Conclusions of Law. Proposed findings of fact and conclusions of law are generally required in any matter to be decided by the court. If, however, emergency injunctive relief is sought, Judge Conti will rule from the bench, without proposed findings of fact and conclusions of law. Trial Procedure 1. General Approach. Counsel should be on time for each court session. When the court recesses, attorneys and their support personnel must stay in place until the jury has left the courtroom. 2. Scheduling of Cases. Court is normally in session Monday through Thursday, 9:30 a.m. to 4:30 p.m. with breaks at approximately 11:00 a.m. and 3:00 p.m. Fridays, unless otherwise ordered by the court, are reserved for pretrial and status conferences, sentencing, and evidentiary hearings. Counsel must be available at 9:00 a.m. and 4:30 p.m. on days the court is in session to meet with the court concerning scheduling, trial problems, and to obtain advance rulings on evidentiary or other issues. 3. Conflict of Counsel. Trial is to take precedence over other matters. Judge Conti expects counsel to file motions in other courtrooms to accommodate trial. With adequate advance notice, she will, if possible, schedule trial to take into account other scheduled trials and court proceedings, as well as planned vacations. 4. Cases Involving Out-of-Town Parties or Witnesses. The court will take into account out-of-town parties and witnesses in the scheduling of a trial. She will also allow such witnesses to testify remotely and out of turn. 11

8 Part I Judges Practices and Procedures 5. Note-taking by Jurors. Jurors are permitted to take notes. 6. Trial Briefs. Trial briefs are generally not required, as all issues are typically resolved prior to trial. Judge Conti will ask for trial briefs on matters prior to or during trial if she deems them necessary. 7. Voir Dire. Voir dire in civil cases is conducted by either Judge Conti s courtroom deputy or law clerk. Counsel may not address potential jurors. Judge Conti will resolve all challenges for cause and will conduct individual voir dire in her jury room when necessary. In civil cases, the court reporter does not attend voir dire, but will be asked to record challenges for cause. 8. Objections; Sidebars A. When counsel makes objections, the objection must be stated. In the presence of the jury, counsel should not state the legal basis for the objection or make any further argument concerning the objection. Counsel should not argue with the ruling of the court on the objection. Arguments with respect to objections will generally be heard at the 4:30 p.m. conference or at sidebar. B. Sidebars are highly disfavored because they waste the jury s time and unduly extend the length of the trial. Counsel are required to file motions in limine together with supporting briefs no later than the date scheduled by the court or, if not scheduled, at least one week in advance of trial with regard to evidentiary matters. Counsel will meet with the court at 4:30 p.m. each day to raise points of evidence or other issues that would otherwise necessitate a sidebar. Failure to raise issues at the beginning or end of the trial day will generally result in a disposition of the in-court objection in the presence of the jury. C. There normally should be no requests for offers of proof during trial, as the parties should have discussed the next day s witnesses with each other or at the 4:30 p.m. conference. 9. In Limine Motions. Counsel are required to file motions in limine together with supporting briefs no later than the date scheduled by the court or, if not scheduled, at least one week in advance of trial with regard to evidentiary matters. 10. Opening Statements and Summations. In the counsel s opening statement to the jury, which must not exceed one hour for each side unless prior leave of court is obtained, counsel should not argue the case or discuss law. Co-counsel are not permitted to split up the opening statement. Counsel should confine himself or herself to a concise summary of the important facts that counsel intends to prove. Counsel should not describe in detail what particular witnesses will say. With advance notice and approval of the court, visual aids and exhibits may be used during opening statements. 12

9 Chief Judge Joy Flowers Conti The court will charge the jury prior to closing arguments. In a counsel s final, closing argument, counsel may quote the charge verbatim on a particular subject. Closing argument for each side must not exceed one hour unless prior leave of court is obtained. Co-counsel are not permitted to split up closing arguments. After the closing arguments, the court will instruct the jury about the process of jury deliberations. 11. Examination of Witnesses Out of Sequence. Where appropriate, witnesses may be examined out of sequence upon request of a party. Witnesses may be examined in any order to which counsel agrees. For example, counsel could agree that expert witnesses for each side will testify back-to-back. 12. Examination of Witnesses A. Counsel should not greet or introduce himself or herself to witnesses. Examination should be commenced without preliminaries. B. Witnesses should not be addressed on a first-name basis. Witnesses should be referred to by Mr. or Ms. Professional witnesses should be referred to by their appropriate title, that is, doctor, professor, etc. C. Counsel should not pace about the courtroom when questioning witnesses. This conduct distracts the jury and wastes time. Counsel may take any position in which they are comfortable, sitting or standing, when questioning witnesses, provided that the other counsel s ability to view the witness and the jury is not obstructed. D. Each witness may be examined and cross-examined by only one attorney representing each party. That attorney will also make all objections and speak for his or her client at all sidebar conferences. E. The court limits examination of each witness to direct examination, cross-examination, redirect examination, and recrossexamination. That means that each party may question a witness only twice. F. Counsel may approach witnesses without leave of court for purposes of identifying and interrogating concerning exhibits. G. Counsel should not face or otherwise appear to address himself or herself to jurors when questioning a witness. H. Counsel may not approach the jury without leave of court and should not lean or place papers on the jury box. 13. Examination of Witnesses Beyond Direct or Cross. The court will allow redirect and recross. 14. Videotaped Testimony. All parties should retain a competent video operator for any video to be shown during trial. 13

10 Part I Judges Practices and Procedures 15. Reading of Material Into the Record. Counsel can devise their own methodology for reading material into the record, providing opposing counsel agrees. 16. Preparation of Exhibits A. Counsel must mark and exchange all exhibits prior to trial. Plaintiffs must use numbers and defendants must use letters. The parties must compare exhibits and eliminate duplicates. If more than one party wants to offer the same exhibit, it must be marked with a number and listed as a joint exhibit on the parties exhibit lists. Two weeks prior to trial, each party must supply the court with a copy of all exhibits to be used at trial and must identify whether an exhibit s authenticity and admissibility have been agreed to by opposing counsel or are in dispute. The court will resolve disputes prior to trial if possible. The parties must supply the courtroom deputy/law clerk with a second set of exhibits to be used as part of the official records of the court. B. In advance of each trial session, counsel for the party going forward at that session should show opposing counsel the exhibits he or she intends to introduce at the session. C. All exhibits already admitted into evidence that are not electronically stored must remain on the table immediately in front of the bench at all times, except when being used as part of the examination of a witness. Do not take exhibits to counsel table. D. If counsel intends to question a witness about any document or exhibit, all such documents or exhibits that are not electronically stored and that will be used during the examination of that witness should be placed at the witness stand prior to the commencement of direct examination or cross-examination. E. At the conclusion of direct or cross-examination of a witness, counsel should return all exhibits that are not electronically stored and that have been admitted into evidence to the exhibit table. 17. Offering Exhibits Into Evidence. If the parties agree on the admission of an exhibit, the party offering it does not need to move its admission. If they do not agree, the party offering it must move to have it admitted, if possible, at a pretrial conference or at sidebar. The exhibit must be admitted before any questioning can proceed. 18. Motions for Judgment as a Matter of Law and Motions for Judgment on Partial Findings. The only requirements for such motions are set forth in the Federal Rules of Civil Procedure and in the order on motion practice entered in the case. 14

11 Chief Judge Joy Flowers Conti 19. Proposed Jury Instructions and Verdict Forms. The parties must file a joint set of proposed jury instructions pursuant to the following procedure: The parties must meet in an attempt to agree on a joint set of proposed jury instructions. After their meeting, the parties must file one document containing a combined set of proposed instructions that includes both agreed-upon instructions and proposed instructions to which the parties have not agreed. Each agreed-upon instruction must include the following notation at the bottom: This proposed instruction is agreed upon by the parties. Each instruction to which the parties have not agreed must indicate at the bottom the name of the party proffering the instruction. Proposed instructions by different parties must be grouped together. The court will not accept separate proposed jury instructions from the parties. 20. Proposed Findings of Fact and Conclusions of Law. Judge Conti requires proposed findings of fact and conclusions of law in all bench trials. 21. Conference on Proposed Jury Instructions. Judge Conti holds her charge conference on a rolling basis, beginning with the pretrial conference and continuing in the conference she holds before the jury is selected and trial begins. She will accept, throughout the trial, supplemental jury instructions and objections to the extent the issues raised could not have been anticipated prior to trial. Judge Conti will make her final rulings before instructing the jury prior to closing arguments. Jury Deliberations 1. Written Jury Instructions. Jurors are provided with a copy of both the preliminary charge and the final charge that they take with them to the jury room. 2. Exhibits in the Jury Room. Generally, the jury has with it all exhibits during its deliberations. If an exhibit is in electronic form, the parties should make available to the jury the hardware and software necessary to view the exhibit. 3. Handling of Jury Requests to Read Back Testimony or Replay Tapes. Jury requests to read back testimony or replay tapes during deliberations are permitted when the jury is able to point to a specific portion of the testimony or videotape. 4. Questions from the Jury. All written questions submitted by the jury are supplied to counsel. Counsel and the court meet in chambers to discuss and, hopefully, to agree on a reply. The response in written form will be sent to the jury or, in certain circumstances, the jury may be summoned to the courtroom and a verbal reply will be given to them. 5. Availability of Counsel During Jury Deliberations. Trial counsel need not remain in the courtroom area, but must be available by telephone and able to return to the courtroom within about five minutes. 15

12 Part I Judges Practices and Procedures 6. Taking the Verdict and Special Interrogatories. The bailiff will retrieve from the jury foreperson the verdict and/or responses to special interrogatories and give it to the court. After the court reviews it, the bailiff will read the verdict. 7. Polling the Jury. Judge Conti generally polls the jury. 8. Counsel Interviewing the Jury. Judge Conti tells the jurors that it is up to them to decide if they will speak to counsel. CRIMINAL CASES 1. Oral Argument and Motions. Motions must be in writing. Judge Conti will generally schedule oral argument. 2. Pretrial Conferences. Judge Conti conducts a pretrial conference in criminal cases. The parties are to submit proposed voir dire and jury instructions prior to the conference. Unlike in civil cases, the parties are not required to submit joint instructions. Judge Conti will have a draft of voir dire and her preliminary charge to the jury for distribution at the conference. She may hold a second conference at which she will decide any remaining issues with respect to the final voir dire and her preliminary charge. 3. Voir Dire. Judge Conti will conduct voir dire on the record in criminal cases. 4. Conduct of Trial Differing from Civil to Criminal. Judge Conti conducts criminal trials similarly to civil trials. The parties, however, do not submit joint jury instructions and voir dire and do not exchange witness lists and exhibits until the first day of trial. 5. Sentencing Memoranda. Sentencing memoranda must be filed in accordance with the local rules. Objections to the report of the pre-sentence investigation will be resolved at the sentencing. Judge Conti generally issues tentative findings with respect to applicable advisory guidelines range a day prior to the sentencing. 16

13 Chief Magistrate Judge Lisa Pupo Lenihan Biography Born: Appointed: 2004 by the Western District of Pennsylvania Board of Judges. Education: University of Pittsburgh, B.A., 1980; University of Pittsburgh, J.D., Experience prior to appointment: Magistrate Judge Lenihan worked as an associate with the law firm of Dickie, McCamey & Chilcote from 1983 until In 1987, she was one of five founding partners of the law firm Burns, White & Hickton and became managing partner of the firm in In 2000, she joined the University of Pittsburgh Medical Center as Corporate Secretary and Assistant Counsel, where she worked until she was appointed to the bench. Sits in Pittsburgh, Pennsylvania. U.S. Post Office and Courthouse Seventh Avenue and Grant Street Ste. 7300, Courtroom #7B Pittsburgh, PA Telephone: Fax: GENERAL MATTERS 1. Correspondence with the Court. Counsel are not to send correspondence to Magistrate Judge Lenihan unless she specifically requests or approves it. Requests for the rescheduling of conferences should be made by telephone to the court s deputy clerk, but only if counsel for all parties are on the line. Otherwise, such requests are to be made by motion. 2. Communications with Law Clerks. Counsel are not to contact Magistrate Judge Lenihan s law clerks. If they wish to consult about the status of a matter or an appropriate procedure, counsel are to call her deputy clerk. 3. Telephone Conferences. Requests for counsel or parties to participate by telephone will be considered on a case-by-case basis. When a telephone conference by all counsel is permitted, counsel must initiate the call and contact the court once all parties are on the line. Magistrate Judge Lenihan prefers that discovery disputes be handled in the first instance by having the parties discuss resolution among themselves, and, if this does not prove possible, then telephone chambers 241

14 Part I Judges Practices and Procedures to resolve the matter, rather than filing a formal discovery motion. Please see Magistrate Judge Lenihan s order on motions practice, shown on page Pro Hac Vice Admissions. Pro hac vice motions may be ruled on by the magistrate judge assigned to the case. 5. Comments to the Media. Attorneys are to adhere to the Rules of Professional Conduct in all dealings, including those with the media. MOTIONS PRACTICE 1. Oral Argument. Oral argument is entertained on selected factually or legally complex matters. If the court deems oral argument to be appropriate, an order will issue. The parties may also file a motion requesting oral argument. Magistrate Judge Lenihan does not set aside a specific day or time for argument of motions. 2. Briefs. Motions seeking substantive legal rulings, whether dispositive or nondispositive, should be accompanied by a supporting brief. The supporting brief must be filed contemporaneously with the motion. A brief may be omitted only if (1) the motion is nondispositive, and (2) the motion itself contains sufficient arguments and legal citation to permit meaningful judicial review. Supporting and responsive briefs are limited to 25 pages in length. Reply briefs should not be submitted in connection with nondispositive motions, without leave of court. Reply briefs may be submitted in connection with dispositive motions but are limited to five pages. Any reply brief submitted should be narrowly tailored to address only those matters newly raised in the response brief. Surreply briefs are strongly disfavored, and they may be submitted only with leave of court. 3. Chambers Copies of Motion Papers. Generally, courtesy copies of all motions and briefs should not be forwarded to chambers, including exhibits and attachments, as they are available to the court through the court s Case Management and Electronic Case Filing (CM/ECF) system. However, where the exhibits are in excess of 300 pages, Magistrate Judge Lenihan prefers that counsel deliver to chambers a hard copy of the appendix and exhibits. 4. Scheduling. Responses to nondispositive motions must be filed within 14 days of service. Responses to motions to dismiss must be filed within 21 days of service, and motions for summary judgment must be filed within 30 days of service. A separate briefing order will not be issued. Please see Magistrate Judge Lenihan s order on motions practice on page 252. Where a brief is required, it must be filed simultaneously with the motion. 242

15 Chief Magistrate Judge Lisa Pupo Lenihan At the close of discovery, or shortly after, the court will issue an order setting forth, among other things, the deadline for filing dispositive motions, including summary judgment motions. Counsel must follow the local rules in filing and responding to summary judgment motions. 5. Evidentiary Hearings. Evidentiary hearings on pretrial matters generally are scheduled in advance of trial. When counsel conclude that an evidentiary hearing is appropriate, they should confer with opposing counsel and request a hearing by motion or through a conference call with the court. 6. Motions In Limine. Counsel must comply in all respects with Local Rule 16.1.C.4 with regard to motions in limine. To the extent counsel deems it necessary to file such motions, the date of filing the motion and supporting brief will be set in the final pretrial order. Generally, the court will rule on these motions prior to trial. 7. Proposed Orders. In accordance with local rules, each and every motion must be accompanied by a proposed order of court. The order of court should include language detailing the specific relief sought, and not simply that the motion is granted. CIVIL CASES Pretrial Procedures 1. Local Rule The court uses an initial scheduling order based on Local Rule Pretrial statements must comply with Local Rule 16.1.C. Please see Magistrate Judge Lenihan s initial scheduling order on page Scheduling Conferences. Pursuant to Local Rule 16.1, after the filing of an answer by the defendant (or after the resolution of a timely filed Rule 12(b) motion), Magistrate Judge Lenihan will issue an order setting the date of the initial scheduling conference. Prior to the conference, the parties will meet and confer and file a report pursuant to Fed.R.Civ.P. 26(f), as well as a joint proposed initial scheduling order, in compliance with the practices and procedures of Magistrate Judge Lenihan s initial scheduling order, shown on page Pretrial/Settlement Conferences. After the court has ruled on all dispositive motions, a final conference will be held to discuss settlement and any pretrial matters that do not require the decision of the district court judge who will be trying the case. On consent cases, the final pretrial conference will be conducted in accordance with Local Rule 16.1.D. 243

16 Part I Judges Practices and Procedures 4. Settlement. Magistrate Judge Lenihan requires counsel and their clients, or persons with authority, to be present at settlement discussions. Presuming counsel has full authority to negotiate the settlement, and for good cause shown, the client may be permitted to participate by telephone on a case-by-case basis. With the exception of social security appeals, petitions for habeas corpus, and prisoner civil rights cases, all cases filed after January 1, 2008, are required to participate in the court s alternative dispute resolution (ADR) program pursuant to Local Rule Request for Extensions and Continuances. Requests for extensions of time and continuances must be presented by written motion, contain supporting facts, and indicate the position of opposing counsel. Reasonable extensions will generally be granted. Discovery Matters 1. Length of Discovery Period and Extensions. Counsel must comply with the provisions of Fed.R.Civ.P. 26 generally and must file the written report required by Rule 26(f) prior to the initial scheduling conference. For cases participating in the ADR program, the length of discovery is 150 days if the parties choose mediation or early neutral evaluation as their ADR process. If the parties choose arbitration, the length of discovery is 120 days. Please see Magistrate Judge Lenihan s initial scheduling order on page Expert Witnesses. Expert depositions may be deferred until after dispositive motions upon agreement of the parties and the court. 3. Discovery/Deposition Disputes. For discovery disputes that arise during a deposition, the attorneys together may contact the court to resolve the matter at that time. Written motions are discouraged. Upon receipt of a written discovery motion, the court will conduct a telephone conference with all attorneys as necessary. The non-moving parties may file a response if desired. 4. Length of Discovery Period and Extensions. All requests for extensions of discovery must comply with the court s standing order concerning extensions of discovery, shown on page 253. For cases participating in the ADR program, it is the policy of the entire court not to grant extensions without exceptional circumstances. 5. Stay of Discovery. The filing of a motion to dismiss or other dispositive motion generally will not stay discovery. A stay may be sought by motion but will be granted only if the right to relief is clear or some other compelling reason exists. Participation in an ADR process will not stay discovery. 244

17 Chief Magistrate Judge Lisa Pupo Lenihan 6. Limitations on Discovery. The court follows the Federal Rules of Civil Procedure on this matter and does not impose additional restrictions or limitations. 7. Rule 11 Motions Rule 37 Sanctions. Counsel are expected to comply with federal and local rules. The court has no additional requirements and will rule promptly. Injunctions Either upon consent of the parties or on referral by a district court judge for report and recommendation, a briefing schedule will be issued and a hearing date will be scheduled, if necessary. Trial Procedure 1. Scheduling of Cases. For cases in which parties have consented to jurisdiction before Magistrate Judge Lenihan, a date certain will be given for trial following the resolution of Rule 56 motions or, if none are filed, at the status conference following the close of discovery. Vacation schedules and personal or professional obligation conflicts of attorneys, parties, and witnesses will be accommodated where possible and the court must be notified of any conflict as soon as possible. 2. Trial Hours/Days. Generally, cases will be tried Monday through Friday, 9:30 a.m. to 4:30 p.m., with breaks when appropriate. Magistrate Judge Lenihan will meet with counsel before and after these appointed times to discuss trial or evidentiary issues. 3. Trial Briefs. Trial briefs are not required, but are encouraged, and should not exceed 15 pages. 4. Voir Dire. The magistrate judge s deputy clerk will conduct the preliminary voir dire of potential jurors. Counsel may submit proposed voir dire for the court s consideration at the time established by the final pretrial order. 5. Note-taking by Jurors. The court usually allows jurors to take notes, unless counsel voices a valid objection. 6. Sidebars. Sidebars will be permitted when necessary. 7. Examination of Witnesses Out of Sequence. Magistrate Judge Lenihan will permit the examination of a witness out of sequence, either within the party s own case or within an opposing party s case, if a scheduling conflict exists. In the event a witness will be unavailable for trial, the witness s testimony may be presented by deposition. 8. Opening Statements and Summations. There are no court-imposed time limits on opening statements or closing arguments. Defense counsel may defer opening statements. 245

18 Part I Judges Practices and Procedures 9. Examination of Witnesses or Argument by More Than One Attorney. One attorney for each party may conduct an examination of any witness and may argue any motion or points. 10. Examination of Witnesses Beyond Direct and Cross. Magistrate Judge Lenihan will permit redirect and recross as necessary, but does not usually permit any further examination. 11. Videotaped Testimony. Magistrate Judge Lenihan does not have any special procedures or requirements with respect to the use or admission of videotaped testimony. Counsel should, however, inform the court in advance of trial of the intention to use such evidence, so that the judge and the parties may discuss the procedures to be used. 12. Reading of Material Into the Record. Magistrate Judge Lenihan has no policy or rules on this point and it will be considered on a case-by-case basis. 13. Exhibits. All exhibits must be listed in the pretrial narrative statements. Plaintiffs must use numbers; defendants must use letters. The parties are expected to comply with Local Rule 16.1.C.5 by exchanging exhibits prior to the final pretrial conference and should be prepared to indicate a position at the final pretrial conference with regard to the authenticity and admissibility of the opponent s exhibits. All exhibits must be marked before trial. Exhibits may be introduced out of sequence. Counsel must obtain the court s approval in advance for use of any visual aids during opening statements. Otherwise, visual aids are permitted during trial and should be marked and offered into evidence as with other exhibits. 14. Jury Instructions and Verdict Forms. The court requires counsel to confer and then submit a single set of agreed-upon jury instructions and a proposed verdict form. In addition to filing the proposed instructions on the docket, counsel are asked to the proposed verdict form to the judge s courtroom in default Word format. To the extent that the parties cannot agree on a particular instruction or form, each party may submit one for the court s approval. The date for filing them will be set in the final pretrial order. The court will hold a charging conference at which time counsel will receive the final charge and verdict form to be given to the jury. 15. Proposed Findings of Fact and Conclusions of Law. In nonjury trials, Magistrate Judge Lenihan permits, and at times requests, the submission of proposed findings of fact and conclusions of law. 16. Offers of Proof. Offers of proof should not be required since the court sets aside time before and after a trial day to discuss trial and evidentiary matters with counsel. Should the need arise during trial, however, the court does not impose any restrictions. 246

19 Chief Magistrate Judge Lisa Pupo Lenihan 17. General Courtroom Rules. Counsel should conduct themselves with courtesy and civility at all times. The court will not tolerate discrimination or bias of any kind. Jury Deliberations 1. Written Jury Instructions. Magistrate Judge Lenihan gives the jury a written copy of her jury instructions. 2. Exhibits in the Jury Room. Magistrate Judge Lenihan permits exhibits to be provided to the jury for their deliberations, as long as counsel agree on the exhibits to be provided. 3. Jury Requests to Read Back Testimony or Replay Tapes. When appropriate, Magistrate Judge Lenihan will permit the reading back of testimony to the jury. 4. Jury Questions. If a question is submitted to the court, the judge will discuss the question with counsel prior to giving an answer to the jury. 5. Availability of Counsel During Jury Deliberations. Counsel must be available by telephone during jury deliberations. 6. Interviewing the Jury. Magistrate Judge Lenihan advises jurors that they do not have to respond to inquiries from counsel. However, she instructs the jurors that responses may be helpful to counsel. CRIMINAL CASES Criminal cases before Magistrate Judge Lenihan are limited to petty offenses, misdemeanor charges, and preliminary criminal proceedings (for example, arraignment, detention hearings, etc.). Counsel must be well prepared and have conferred with their client prior to the scheduled criminal proceeding. Counsel should conduct themselves with courtesy and civility. 247

20 Part I Judges Practices and Procedures Order Setting Initial Scheduling Conference ORDER SETTING INITIAL SCHEDULING CONFERENCE The above-captioned case has been assigned to this Court for pretrial proceedings. Pursuant to Local Rule 16.1 and Rules 16 and 26 of the Federal Rules of Civil Procedure, an initial scheduling conference will be conducted in this case to discuss narrowing of the issues, the extent of pretrial preparation, discovery procedures, the early disposition of controlling questions of law, the probable extent of provable damages, the possibility of settlement, the possibility of the parties consenting to jurisdiction of the Magistrate Judge or requesting a District Judge be assigned to this case and any other matter that will contribute to the prompt disposition of the case. As required by Rule 26(f) of the Federal Rules of Civil Procedure, the parties must, as soon as practicable and in any event at least ten (10) days before the date set for the initial scheduling conference, confer to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule 26(a)(1), and to prepare and file a report pursuant to Fed. R. Civ. P. 26(f). The parties must also file a joint proposed initial scheduling order, in compliance with the practices and procedures of the undersigned, as well as a Stipulation Selecting ADR Process, which is attached to this order as Exhibit A. The parties are hereby notified that any identified neutral (court approved or private) is required to become a registered user of the electronic case filing system in the United States District Court for the Western District of Pennsylvania. Counsel shall so notify their agreed upon neutral and refer them to the Court s website at for user registration forms. Counsel shall confirm to the Court at the initial case management conference that the selected neutral has completed this process. Therefore, IT IS ORDERED this day of, 20, that the initial scheduling conference will be held on, in Courtroom 7B, U.S. Post Office and Courthouse Building, 700 Grant Street, Pittsburgh, Pennsylvania. Trial counsel shall attend. IT IS FURTHER ORDERED that the parties file a Rule 26(f) Report no later than two days before the scheduled conference. IT IS FURTHER ORDERED that the parties file the Stipulation Selecting ADR Process no later than two days before the scheduled conference. IT IS FURTHER ORDERED that each party complete and file the form indicating whether they wish consent to jurisdiction of the Magistrate Judge or have a District Judge assigned to the case no later than two days before the conference. By the Court: Lisa Pupo Lenihan United States Magistrate Judge cc: All counsel of record 248

21 Chief Magistrate Judge Lisa Pupo Lenihan Initial Scheduling Order INITIAL SCHEDULING ORDER AND NOW, this day of, 20, IT IS HEREBY ORDERED that this action is placed under Local Rule 16.1 for pretrial proceedings and all provisions of the Rule will be strictly enforced. IT IS FURTHER ORDERED that counsel shall confer with their clients prior to all case management, status or pretrial conferences to obtain authority to participate in settlement negotiations to be conducted by the Court. Counsel are encouraged to instruct the principals to be available by telephone to facilitate the amicable resolution of all litigation. IT IS FURTHER ORDERED that compliance with provisions of Rule 16.1 shall be completed as follows: 1. The parties shall move to amend the pleadings or add new parties by. (60 days before the end of discovery) 2. The parties shall complete discovery by. (150 days from conference if parties choosing mediation or early neutral arbitration, 120 days if choosing arbitration.) All interrogatories, depositions and requests for admissions and/or production of documents shall be served within sufficient time to allow responses to be completed prior to the close of discovery. 3. The ADR process selected by the parties shall be completed by. (60 days from conference if mediation or early neutral evaluation, 90 days if arbitration.) Participation in the ADR process does not stay discovery. 4. A status/settlement conference will be held on, at. (Generally within 1 week of the close of discovery) Trial counsel shall attend and the parties shall be available by telephone. IT IS FURTHER ORDERED that the parties shall follow this Court s Order on Motions Practice in connection with all pretrial motions. The pendency of motions, including dispositive motions, will not stay the time periods set forth in, nor affect any other compliance requirements of, the Scheduling Orders. By the Court: Lisa Pupo Lenihan United States Magistrate Judge cc: All counsel of record. 249