FIRST JUDICIAL DISTRICT GILPIN COUNTY DISTRICT COURT Court Address: 2960 Dory Hill Road, Suite 200 Black Hawk, Colorado 80422-303-582-5323 ext. 13 AAA, Inc. v. BCC, Inc. et al. Plaintiff, Defendants Case No. 08 CV Div. G Courtroom: 1 SUPPLEMENTAL CIVIL TRIAL MANAGEMENT ORDER PLEASE READ THIS ORDER NOW. IT GOVERNS IMPORTANT ASPECTS OF THIS CASE. This supplements the Rule 16(f)(3) Trial management Order Within 45 days of this case being at issue, the parties are ordered to set the matter for trial. This trial date is subject to being vacated by the Court if the ADR requirements contained herein have not been fully and timely complied with. This order is being e-filed to counsel for plaintiff, and other counsel of record as of this date. Plaintiff s counsel shall be responsible for mailing copies to counsel for all other parties, and to parties not represented by counsel, within five days of this date, and within ten days thereafter file a certificate of compliance. This order shall govern proceedings in this action unless and until otherwise ordered by the Court. Failure to comply with this order may result in dismissal, loss of trial date, and/or other sanctions. Unless specifically stated, no other order entered in this case shall vary any provision of this order. All requirements in this order directed to "counsel", also apply to any party proceeding without counsel. If for any reason the trial date is continued, the provisions of this order shall continue to control pretrial and trial procedures unless otherwise specifically modified by the Court. Discovery. All applicable provisions of C.R.C.P. Rules 16, 26 and 121 (including conferring before filing motions), are incorporated here and, except as otherwise specifically ordered in writing by the Court, all parties shall fully and timely comply with all such provisions. We all know that discovery can be contentious, and that large amounts of time and money can be spent propounding and responding to discovery, despite the mandatory disclosure rules and other procedural reforms. I do not like scorched earth discovery tactics, whether by plaintiffs or defendants. In the abstract, no one does. But, it happens sometimes out of a belief that it is
part of zealous advocacy of your client s cause, sometimes because you have been trained in certain discovery habits, sometimes because you may be afraid that if any stone is left unturned it could come back to haunt you, and sometimes simply because you think of yourself as a hardball player. Try, of course, to work these disputes out. But, if my intervention is needed, you are encouraged to involve me early in the process. Instead of preparing and filing motions and briefs, try to set up a telephone hearing where the problem can be resolved quickly and relatively inexpensively. Referral to ADR. The Court hereby refers this case for mediation, dispute resolution, or an ancillary form of alternative dispute resolution (jointly referred to herein as "ADR") pursuant to C.R.S. 13-22-311 and 313. If the parties are unable to agree within 20 days of the date of this order which form and source of ADR services to use, they shall participate in mediation through the Colorado State Judicial Department Office of Dispute Resolution (phone 303-837-3672). ADR efforts must proceed diligently and in good faith. All ADR efforts shall be completed no later than 120 days before trial. No later than 100 days before trial, the responsible attorney as defined in C.R.C.P. 16, shall file with the Court a certificate stating that all of the foregoing orders regarding ADR have been timely and fully complied with. If the parties fail to so comply and certify, the Court may vacate the trial date and may impose other sanctions against some or all of the parties and/or their counsel. Trial Management Conference. The responsible attorney shall set an unsupervised face-to-face informal trial management conference between or among lead counsel for all parties, to be held not less than 40 days and not more than 60 days before trial. This conference shall have as its purpose an overall review of the upcoming trial, in order to expedite proceedings at trial. At such meeting, counsel shall discuss the legal and factual issues, and any evidentiary or procedural problems which may arise at trial. The parties, including a representative of each party authorized to make settlement decisions, shall attend in person. Following this meeting, the responsible attorney shall file a proposed stipulated order with the Court at least 30 days before trial, in which the parties shall specifically identify therein any trial management matters they have been unable to resolve. Any conflicts, ambiguities, or unresolved pre-trial matters shall be brought to the Court's attention by telephone conference at least 10 days before the trial date; lead counsel for all parties shall participate in such telephone conference. If you believe it would be helpful, I am available to supervise such a conference informally in chambers or over the phone. I will leave that up to you, recognizing that the trip to Gilpin County may impose undue expense on clients. If counsel prefer to participate by phone, simply let opposing counsel and the Clerk of this Division, Getta Nadeau (303-582-5522xt13), know in advance. In preparing the proposed Trial Management Order, follow the rules but look for ways to streamline things to reduce cost to your clients. So long as there is fair disclosure to all concerned, the shorter and less complex the order the better. You should be able to list your actual trial witnesses, in expected order, with reasonable estimates of the length of their direct testimony, by the time you submit the proposed Trial Management Order. If either party anticipates an unusual evidentiary issue or problem, it would be helpful to bring it up at the Trial Management Conference and in any event before the spur of the moment in front of the jury. You should be able to have your actual trial exhibits listed and pre-marked by the time you submit the proposed Trial Management Order. If there will be objections to the authenticity or 2
admissibility of an exhibit, that should be known and revealed as well. Generally, I would like to resolve questions regarding admissibility of exhibits if possible at a Trial Management Conference, so that the notebooks can be put together before trial. Experts. If counsel for any party intends to object admissibility of any expert testimony as contemplated by People v. Shreck, 22 P. 3rd 68 (Colo. 2001), such objections must be made by written motion filed after the discovery cut off date, but no later than 40 days before trial. Failure to file such objections will be deemed a waiver of Shreck admissibility objections. If objections are filed, the court will decide if a hearing is required. Expert testimony must be disclosed in accordance with Colo. R. Civ. Proc. 26 (a)(2). Motions. Any motion for Summary Judgment shall be filed no later than 75 days before the scheduled trial date. All other Motions, including Motions in limine, shall be filed no later than 35 days before the scheduled trial date. Counsel are encouraged to plead their claims and defenses with care, avoiding the shotgun approach of filing multiple claims, multiple counterclaims, multiple affirmative defenses, etc., where the real essence of the dispute could be more simply pleaded. Counsel are encouraged to avoid motions to dismiss and motions for summary judgment where there is little realistic probability of success. To the extent that counsel can restrict themselves to the filing of motions that they really believe are meritorious and opposing motions that they really believe are lacking in merit, your time, my time and the client s money can be better used. Briefs that are short and to the point are more effective. String citations should be avoided whenever possible. I am more interested in knowing the one or two authorities that best support your position. It will generally be helpful to provide copies of your key authorities (other than Colorado statutes and reported cases, though you may provide those if you like). You may highlight portions of submitted authorities so long as the identical highlighting is provided to opposing counsel. Avoid barbs such as counsel conveniently overlooked... or counsel attempts to mislead the court by stating..., etc., unless you truly believe that these fighting words are accurate and necessary. Develop a reputation with my staff and me for citing cases accurately, not overstating their holdings, and for being candid in your arguments. If a motion has been fully briefed and seems to have fallen through the cracks, please alert Getta (ext. 13) so that we can move it to the top of the pile. I do not ordinarily set hearings on motions in civil cases, so if counsel feel that oral argument would be particularly beneficial, they should note this on the motion. We enjoy seeing counsel and hearing arguments, but the time and expense involved may not be justified if the issues have been well briefed. The exception is criminal motions, which normally are decided from the bench at the conclusion of a hearing. In order to allow sufficient time for responses, replies and consideration by the court, I recommend that motions be filed no later than 45 days before trial, and that dispositive motions be filed no later than 75 days before trial. We take C.R.C.P. 121, section 1-15(8) seriously. Before filing a motion, counsel should make a sincere effort to confer with opposing counsel by telephone or otherwise to determine whether the motion is necessary. Audio Visual Equipment. If any counsel plans to use special equipment (overhead projector, video monitor, x-ray viewer, etc.), it is that counsel's responsibility to see to it 3
that the equipment is available, set up, in proper working condition, and otherwise ready for immediate use. Any diagrams or illustrations to be used or referred to at trial shall be prepared in advance and ready for immediate use at trial. Jury Selection. When potential jurors are seated in the courtroom, I will give them a brief statement of the case, either in my own words or in yours. Counsel may submit short, nonargumentative summaries of their clients positions (one or two paragraphs). A joint statement would be welcome. I place time limits on voir dire, usually 30 minutes per side. Based on post-trial questionnaires that we have received from dozens of jurors, I assure you that this is the part of the trial that jurors tend to look back on most unhappily. They frequently believe that the voir dire process took too long, and that the lawyers questions were repetitive, irrelevant, condescending, etc. Counsel can very easily irritate jurors and start out with a strike against them. I encourage you to ask open-ended questions designed to get jurors talking and to examine possible prejudices or biases, to keep it moving, and not to be afraid to mix in a little humor. Jurors will be permitted to take notes if they wish. Jurors will be permitted to submit written questions to the bailiff while the witness is on the stand. My own bias is in favor of juror questions, as I believe that proper questions not only permit jurors to get their questions answered but give the parties and counsel valuable information about points troubling jurors. My practice has been to read the question and make an initial assessment of whether the question may be objectionable. If so, I will call counsel to the bench to discuss it. Once I am satisfied that the question is proper, I will read the question to the witness. Counsel will always be permitted to note objections at the bench. I tend not to like to select alternate jurors, because I do not like to ask people to spend several days as a juror only to be sent home without the opportunity to participate in the deliberations. If a trial is going to take more than a couple of days, we will likely discuss whether the parties will agree to have the case decided by fewer than 6 if we lose a juror or whether they will agree to have the case decided by an expanded jury, e.g., 7, if we don t lose anyone. Counsel have an absolute right to decline to agree to either option. If we need an alternate, the procedure we have used in this Division is to pick 7 whatever number we need without designating anyone as an alternate. Then, after closing arguments are concluded if we still have more than the required number, the bailiff will put all the names in a box and draw one name at random, who will then be designated the alternate and excused from the deliberations. Opening Statement. Once a jury has been selected, I am willing and in fact prefer to pre-instruct the jury on the law before opening statements. I likely will not require it if there is a strong objection. If we pre-instruct, written copies of the instructions will be inserted in the jurors notebooks at the same time. My view is that if jurors understand the elements of the claims and defenses, counsel can organize opening statements better, and the jurors can understand the significance of the evidence better as it comes in. It also forces counsel and the court to focus on the legal issues and to prepare instructions in advance of trial. Any preinstructions will always be preliminary in the sense that they can be modified, added to or deleted based upon developments during the trial. Generally, I hope opening statements will not exceed 20 minutes. The use of charts, graphs, photographs, and other demonstrative aids in opening statements will be 4
permitted and encouraged. Such aids generally make the opening statements more interesting and informative for the jury. Counsel may use white pads, overhead projectors, Power Point slides, or any other means of display that they may desire. Equipment must be provided by counsel. All set up should be done outside the presence of the jury and without causing down time for the jury. Juror Notebooks. The Court provides basic Juror Notebooks. To promote efficient use of trial time and reduce the expense of trial, each counsel is directed to prepare, and have available at the beginning of trial, a ring binder exhibit book of all documentary exhibits for the use of witnesses during their testimony, plus one copy for the Court, each member of the jury and one copy for each party's counsel or unrepresented party (i.e., a minimum total of 9 books) and the exhibit book. Each exhibit shall be labeled and tabbed, (numbers for plaintiff; letters for defendant) and shall begin with an index. Multiple parties shall pre-allocate designations among themselves to avoid duplication. All documentary exhibits which a party intends to use at trial shall be included in the exhibit book, except those which are too large to fit into an exhibit book and those which could not reasonably have been anticipated as of the beginning of trial. The exhibit book for the use of witnesses shall remain available on the witness stand for reference by each witness during their testimony. If a party intends to offer less than six documentary exhibits, no exhibit book is required, but counsel shall have available, pre-marked, an original and 9 copies of each documentary exhibit. Counsel and any party unrepresented by counsel shall confer about items to be included in Jury Notebooks as set forth in Colo. R. Civ. Proc. Rule 47(t). Important exhibits may be highlighted, excerpted and included in the Jury Notebook. Counsel shall be punctual in all Court appearances, and shall be responsible for the punctuality of their litigants and witnesses. Counsel are expected to communicate with each other during trial about the time at which each identified witness is expected to be called. Counsel shall have sufficient witnesses present and ready to testify for each session of Court, so that each witness is available to testify as soon as the previous witness has finished testifying. If the rule excluding witnesses has been invoked, each counsel shall be responsible to ensure that witnesses whom they intend to call are not present in the courtroom until they testify. Timing of Expert Witnesses. The Court attempts to cooperate with persons who will testify as experts and, except in extraordinary circumstances, will permit them to testify out of sequence. Counsel planning to call any expert witness shall anticipate such possibility and discuss it in advance of trial with opposing counsel. If there is objection, counsel shall submit this matter to the Court in advance of trial. During trial, counsel shall not exhibit familiarity with witnesses or opposing counsel. Counsel shall not address or refer to witnesses or parties by first name only; however, young children may be addressed and referred to by first name only. Counsel shall treat other counsel, parties, witnesses and Court staff with civility and courtesy throughout the trial. Counsel shall consult with opposing counsel, in advance of trial, regarding 5
stipulations on uncontroverted matters, and are encouraged to reach as many stipulations as possible. All stipulations of fact in a bench trial should be read into the record before the opening statement of plaintiff's counsel. Objections to questions or tendered exhibits shall be limited to stating the legal basis for the objection (e.g. objection, hearsay ) and should not prompt the witness, or repeat or argue evidence. Counsel will stand when making an objection; this alerts the Court that an objection will be made. In order to avoid the necessity of making repeated objections to a particular line of questioning, the Court invites counsel to make a standing objection to an entire line of questioning. Re-arguing an objection after a ruling has been made on an objection is inappropriate. Colloquy or argument between or among counsel during trial is not appropriate. All remarks shall be addressed to the Court except for perfunctory matters of courtesy, such as stating page and line number of a deposition to which reference is made. During voir dire, opening statements, and witness examination, and closing argument by one attorney, all other counsel and parties, shall remain seated at counsel table, except as may be necessary to raise appropriate objections. In cases to be tried to a jury: The Plaintiff's attorney (or unrepresented party) shall deliver the following to the Clerk no later than five calendar days before trial: An agreed statement of the case in one hundred words or less in the form of Jury Instruction No. 1. If counsel are unable to agree as to a statement of the case, counsel must take this matter up with the Court at least five working days before trial. A list of the name, city and state of residence, and occupation (if relevant) of each plaintiff s witness. A copy of any key plaintiff s exhibits which respective counsel have agreed may be admitted at trial. Documents may be excerpted and or highlighted. A glossary of any scientific or technical terms to be used by plaintiff s witnesses. This is optional. The Defendant s counsel (or unrepresented party) shall deliver to the Clerk no later than five calendar days before trial: A list of the names, city and state of residence, and occupation (if relevant) of each defense witness. A copy of any key defense exhibits which respective counsel have agreed may be admitted at trial. Documents may be excerpted or highlighted. 6
A glossary of any scientific or technical terms to be used by the defense witnesses. This is optional. Jury Instructions. Counsel, and not the Court or its staff, are responsible for any and all aspects of preparing in final form all agreed and proposed instructions and all verdict forms, and all agreed and proposed instructions, and all jury verdict forms. Jurors shall not be made to wait on account of delays by counsel in connection with preparation of the final version of instructions and verdict forms. This includes the making of any revisions which become necessary as a result of developments during the trial. Jury instructions shall be in language understandable to persons not familiar with the legal system, and shall be as plain, simple and clear as possible. Counsel shall eliminate all parts of any stock instruction which do not apply to this case. None of the following need be prepared: instructions from Chapter 1, C.J.I., Civ. 3 rd ; instructions 3:4, 3:8, 3:11, 3:14, 3:15, 3:16, and 3:17. The Court will instruct the jury on these matters. Voir Dire. Except as otherwise permitted by the Court, jury voir dire shall be limited to 30 minutes per party. Counsel may, if they wish, use up to five minutes of such time to make a "mini-opening statement" to the jury. Flow of Trial. Presentation of evidence to the jury shall proceed with a minimum of interruptions. Unless exceptional circumstances exist, the making of a record on objections and other legal matters, whether by bench conference or otherwise, will not be permitted to interrupt the orderly presentation of evidence to the jury. At a later time convenient to the Court and counsel when the jury is not in the courtroom, counsel may request leave to make their record on such matters. Do publish your admitted exhibits to the jury without delay. Jury Management. I want to avoid down time during trial as much as possible. Jurors hate having their time wasted. Please plan so that motions in limine or other motions that come up during trial can be handled during recesses or before or after the jury s trial day. Plan so that disputes about instructions can be handled without wasting the jury s time. In the case of a long trial, if you can anticipate an unavoidable break in the flow of the trial, bring it to my attention in advance and, if it cannot be avoided, we ll let the jurors know in advance so that they can plan accordingly. Court Reporter. It may be necessary to record some or all proceedings in this case by electronic means, because of the unavailability of a court reporter. Making an electronic record when a court reporter is unavailable has been specifically authorized by Chief Justice Directive issued in December 2002. If proceedings are being recorded electronically, counsel (and any party not represented by counsel) are responsible for assuring that they, and any witness being examined by them, are within range of a live microphone whenever they or any witness being examined by them are speaking. Counsel (or any party) may hire a qualified reporter to make a record of any court 7
proceedings in this case. The time is broadcast from a digital bench clock as an aid in locating key portions of the transcript for later printing. Your Suggestions. The Court encourages counsel to jointly discuss ways in which the trial may be made more fair and/or efficient and, if they agree on any such matters, to timely submit them to the Court for its consideration. Last Word. Finally, look for ways to have fun in the practice of law. Things that made the practice fun for me: cases where I got along well with opposing counsel even though I was doing my level best to prevail in the case; spending more time on trial preparation and trial, less on motions and discovery; being creative with evidence and with legal arguments; being allowed freedom in the courtroom to be an advocate; the satisfaction one gets from disclosing contrary authority candidly and then figuring out an argument that might prevail anyway; getting to know the judge and feeling comfortable in his or her courtroom; having a good relationship with the court s staff. We will look forward to working with you. Done and signed in Black Hawk, Colo. this day of, 20. BY THE COURT: Frederic Rodgers JUDGE CERTIFICATE OF MAILING I do hereby certify that a true and correct copy of the above Order was mailed postage prepaid on the day of, 200, and addressed to the following: Division Clerk 8
Counsel is ordered to mail copies of this document to all other parties of record or their counsel within 48 hours of receipt and e-file or furnish to the Court a certificate of mailing within one week. 9