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Bench Book

JUDGE/COMMISSIONER: Mark R. DeCaria

Q: What is your practice with respect to setting an initial case schedule?  Modifying   it once set?

A: Rule 26 guides the setting of a schedule for the management of cases.  Our case management system sends a notice of events due dates.  Parties are obliged to adhere to those dates.  Modifications with the consent of both sides are not unreasonably withheld.  Conference calls are appreciated. 

Q: Has your district adopted any local rules with respect to resolving discovery                                  disputes?

A: Not that I have seen.

Q: What is your practice regarding discovery disputes?  How do you handle status and scheduling matters for discovery issues? 

A: I merely follow the rules.  I try as much as I can to give precedence to discovery matters. Conference calls on the record are helpful and encouraged. 

Q: What is your approach to granting extraordinary discovery?

A: With good cause, the Court will consider motions for extraordinary discovery.  I
rely on the rules for guidance.

Q: What is your practice regarding sanctions for discovery abuses?

A:  I will impose sanctions when appropriate.

Q: Are you generally available to hear disputes that arise during depositions?

A: I am generally available via conference call to hear disputes that arise during depositions.

Q: What insights do you have for litigants with respect to discovery matters in general, especially in light of the November 1, 2011 amendments to the Utah Rules of Civil Procedure?

 A: It is always helpful if parties attempt to resolve discovery questions themselves.

  1. Motions

Q: Do you prefer that counsel provide copies of the cited authorities prior to a hearing?  What about unpublished cases?

 A: I prefer to have counsel provide copies of the essential cases prior to the hearing.  At least have the cites so that I can look them up.  Unpublished cases can be helpful.  I prefer a copy of the entire case.

 Q: Do you appreciate courtesy copies of briefs being delivered to your chambers prior to a motion hearing?  If so, how far in advance do you want them?

A: I like courtesy copies of briefs and cited cases  in a one-ring binder that contains the work of both parties.  It is ok to provide parts of depositions and other evidentiary materials that sustain the position of the parties.

 Q: What is your policy on allowing overlength memoranda?  Extensions of the briefing schedule?

 A: I will allow overlength memoranda if the parties have complied with Rule 7 and good cause exists for the Court to grant the request.  If the parties agree to extend the briefing schedule and such does not result in a delay to the hearing or trial, the Court will grant the request.  If there are objections to extending the briefing schedule the Court will conduct a conference call.

 Q: Do you schedule motion hearings automatically upon receipt of notices to submit, or do you prefer or require that counsel call to schedule hearings?

 A: If a request for hearing is made I most often schedule a hearing.  My in-court clerk will schedule the hearing.

Q: Under what circumstances do you decline to grant a request for oral argument?

A: When the facts and arguments are so clearly stated in the briefing that it would be unnecessary, I will decide without a hearing.  However if the parties are adamant about arguing orally, I will schedule some time.

Q: Do you have any recommendations or preferences regarding written advocacy that you would like counsel to be aware of?

A: The parties should make their positions known using clear and concise language in the statement of the facts and arguments, attaching appropriate cites to controlling law.

Q: Do you have any particular guidelines or preferences that you expect counsel to follow at oral argument?

 A: I ask the parties to show respect for the Court and opposing counsel.  Again, please use an organized and concise approach.

Q: Do you have any guidelines or preferences that you expect counsel to follow regarding temporary restraining orders or preliminary injunctions?

 A:  It is helpful if counsel follows the guidance found in Rule 65(a) URCP.  Don’t assume the Court will read between the lines to find the four major principles required when seeking injunctive relief.                     

Final Pretrial Conference

Q: In your view, what is the purpose of the final pretrial conference?

 A: The final pretrial conference should be used to ensure that as much as possible  all components necessary for the trial are complete, such as jury instructions, witness lists, exhibit lists, and any other issues the parties believe are necessary to raise.

Q: What topics or issues should counsel come prepared to discuss at the final pretrial conference?

A: Void dire, jury instructions, witness lists, exhibit lists, trial briefs.

Q:  What steps do you take, if any, at a final pretrial conference to encourage settlement of the case?

A: Compliance with ADR requirements to ensure the parties have tried to settle.

Q: Do you require clients to be present at final pretrial conferences?

A: No.

 Q: Do you typically hear motions in limine and other trial-related motions at the final pretrial conference, or at another time?

 A: Typically motions in limine and other pre-trial motions are heard at a separate scheduled date.

Q: Do you appreciate or require pre-trial briefs from counsel?

A: They are generally not necessary but are helpful.

  1. Jury Trials

Jury Selection:

Q: How is voir dire conducted in your courtroom?  Do you allow counsel to participate in voir dire?  If so, to what extent?

A: Voir dire is conducted by both the Court and counsel.  In criminal cases, counsel is allowed greater latitude than in civil matters.

Q: When do you require requested voir dire questions to be submitted? 

A: Voir dire is a topic for discussion at the pre-trial conference.

Q: Do you allow or encourage the use of jury questionnaires?  If so, by when must jury questionnaires be filed?

A:  In some cases jury questionnaires are helpful.  I believe they are best used for civil cases and capital homicide cases.  Jury questionnaires must be the joint creation of counsel and the Court.  They must be complete and ready to send to prospective jurors at least 30 days prior to trial.

Jury Instructions:

Q: When do you require instructions to be submitted? 

A: Usually, two to three weeks prior to trial, depending on discussions at pre-trial.

Q: Do you have a set of standard jury instructions that you use?  If so, how can counsel obtain a copy?

A: In criminal cases, yes.  In civil cases, counsel submits instructions for court approval.

Q: What form do you prefer requested instructions to take (e.g., do you prefer instructions accompanied by supporting cases, etc.)?  Is a citation to MUJI 1st or 2nd  sufficient legal authority? 

A: If counsel proposes an instructions not directly covered by MUJI 1 or 2, they must attach an appropriate cites that would empower the court to use the requested instruction.  Cites to MUJI alone are sufficient legal authority.

Q: Do you prefer to receive an electronic copy of requested instructions?

A:Yes.

Q: When do you prefer to hear disputes over jury instructions:

 A: Any time before trial.

Trial Procedure:

Q: What is your preferred trial schedule (e.g., 9 to 5 with an hour for lunch, 8 to 2
with no lunch, etc.)?  Are there any set days/times when you schedule other
matters and not trial?

A: Trial in my courtroom will proceed from 9 am to 5 pm with one hour to one and a half hour lunch break.  Usually the court will break mid-morning and mid-afternoon for a brief recess.

Q: Do you prefer to hear disputes over trial exhibits before trial or during:

A: Preferably before trial, but exceptions can be made.

Q: What is your practice regarding the use of trial exhibits or demonstratives during
opening statements?

A: If opposing counsel stipulates then I have no problem.

Q: What are your preferences with respect to trial exhibits?   What are the
preferences of your clerks with respect to trial exhibits?

A: Have all exhibits before trial commences.  If possible, documents should be in a tabbed, ring binder. 

Q: Do you have any guidelines or preferences regarding the use of technology at
trial?

A: Because our courtroom is so low-tech, counsel must bring all of the hardware necessary for their presentation.  Items to be broadcast on a screen should be formally admitted by the Court prior to publication.

Q: What are your preferences and/or procedures related to witness scheduling? 

A: The parties must have witnesses present when required.  Some flexibility is ok, but if a witness is not present then counsel must be prepared to call a witness out of turn so as to not unnecessarily delay the trial.

Q: Do you allow counsel to move freely around the courtroom during trial?

A: Generally counsel can move about the courtroom so long as they can be recorded and don’t unnecessarily encroach of the space of the witness or the jury.

Bench Trials

 Q: Do you have any particular guidelines or preferences that counsel should be aware of regarding bench trials as opposed to jury trials?

A:No.

Post-trial Issues

Q: Do you appreciate or require proposed findings of fact and conclusions of law from counsel?

A: Sometimes, on a case-by-case basis.

Q: Do you appreciate or require post-trial briefs from counsel?

A: I rarely require them, but they are appreciated.

Technology in the Courtoom

Q:To what extent do you allow the use of technology in your courtroom?      

A: Other than a PowerPoint, counsel should seek permission.

Q: Do you find the use of any particular type of computer-assisted presentations effective and/or useful?

A:They can be useful on a case-by-case basis.  I have no preference as to what form the presentation should take.

Q:Do you find the use of any particular type of computer-assisted presentations unhelpful?

 A: No.  Caveat: please ensure that your technological presentation works appropriately.

Criminal Matters

Q: How do you handle requests for continuance on pretrials, arraignments or roll calls?

A: I will grant continuances when good cause exists.

Q: When may the issue of bail best be addressed in your courtroom?

A: Bail may be address on video arraignments or the defendant’s first appearance in court.  Bail may also be address at any time based on a motion and notice to the other side.

Q: What is your policy, if any, on pleas in abeyance?

A: Only in special cases do I grant pleas in abeyance, and then only with the agreement of both sides.

Q: What information do you want from counsel at the time of sentencing?

A: I appreciate any information which will improve the Court’s understanding of the defendant and the facts of the case and any information which rebuts the conclusion in the presentence report.

Q: Are private pre-sentence evaluations useful or encouraged?

A: I suppose they can be useful; I rarely see them.

Q: Do you have any standard sentences the bar should be advised about, i.e., DUI sentencings, acceptance of alcohol-related recklessness?

A: No.

Q: How should counsel on busy law and motion calendar handle calling a case?

A: Counsel should approach the podium and announce the docket number and the name of the defendant.

Q: What advice do you have for prosecutors to be most effective in your courtroom?

A: Avoid confrontation or argument with opposing counsel.  Do not argue for the harshest sentence on each case.  Don’t request pre-trial detention of the defendant unless there is evidence of danger or flight risk.

Q: What advice do you have for defense counsel to be most effective in your courtroom?           

A:  Help the Court see the benefit of any sentencing alternatives.

Special Issues for Domestic Cases

Q: Are there any special issues that arise in your courtroom in domestic cases of which you would like the bar to be aware?

A: No.

Q: What documents do you want filed before appearing on a motion for temporary orders?

A: These matters usually go to the Domestic Relations Commissioners.

Q: What documents do you want filed before appearing on a motion for a custody evaluator?

A: These are generally heard by the Commissioner.

Q: What are the special procedures for filing a Motion for an Order to Show Cause?

A: These are matters which are heard by the Commissioner. 

Q: Do you have any preferences for compelling and filing financial declarations? Any practice pointers for counsel as to how you would like these completed or filed?

A: Be clear, thorough, and share with opposing counsel prior to hearing or trial.

Q: Do you want any type of motion binder delivered?  Is this helpful, or does e-filing render these obsolete?

A: I like motion binders, especially when both counsel consolidates their briefing into one binder.

Q: Do you appreciate courtesy copies of briefs being delivered to your chambers prior to a motion hearing?  If so, how far in advance do you want them, and how do you want them assembled (folder, binders, with or without exhibit tabs, etc.)

A: I always like courtesy copy binders delivered before the hearing with enough time for me to read and prepare.

Q: Is there a special way that you would like proposed orders to be filed?

A:Yes, always in the e-filing system.

Q:  How should discovery deadlines be handled on petitions to modify, where a schedule is not automatically issued by the court?

A: Generally, this is a task for the Commissioners.

Q: Do you have a policy on child interviews with respect to custody?

A: On very rare occasions, I will speak to children 14 years of age or older.  The guardian ad litem or custody evaluators are better suited to conduct these interview.

Courtroom Protocol

Q: Is lack of civility ever a problem in your courtroom?  If so, what steps  do you take to address it? 

A: The vast majority of lawyers have taken seriously the professional responsibility rules.  I will intervene on occasion if necessary.

Q: What are your opinions regarding courtroom dress?

A: For men: Suit, sport coat, collared shirt, and tie.  For women:  Dress, suit pants, or slacks. 

Q: Do you allow children in your courtroom?

A:Yes, unless they are disruptive.

Q: What is your courtroom practice with respect to attorney cell phones?  Clients? Those in the gallery?

A: Phones must be silent or turned off.  Otherwise, the bailiff will confiscate them until recess.

Comments from Case Managers and Judicial Assistants

Q:The name and phone number of my case manager(s) is:

A: Kiera Bitter  801-395-1053

Q: The name and phone number of my judicial assistant(s) is:

 A: Roxanne Baptist  801-395-1156

Biographies of 2nd District Judges