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Bench Book

Judge Michael G. Allphin

JUDGE: Michael G. Allphin - Second District Court

1. Scheduling Conferences

Q: Are scheduling conferences needed or used in your court? If so, are they conducted in person or by telephone?

A: Yes. By telephone.

Q: What are your preferences regarding Case Management Orders/Scheduling Orders? Do you require that specific things be included in such orders?

A: Follow the rule. Submit them timely. Follow the schedule. I want cases moved along.

2. Motions Practice

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

A: Yes, 1 week.

Q: Do you schedule hearings on motions automatically upon receiving notices to submit, or do you prefer or require that counsel call to schedule hearings?

A: My clerk calls the lawyers and schedules a time. If contact cannot be made she schedules the hearing and sends notice.

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

A: I grant very few requests. Most attorneys just want to recite what’s in their briefs. If I am unsure of facts, I will hear to clarify.

Q: What is your policy on allowing overlength memoranda?

A: Allow sparingly—only grant for a very good reason.

Q: What separates a useful brief from one that is unhelpful?

A: Clearly and precisely tell me what the facts are and the law that applies.

Q: Do you prefer that counsel provide copies of the relevant cases prior to a hearing?

A: Yes.

Q: What makes an effective motions argument?

A: Clearly state the facts and tell me what law applies. Tell me why the opposing party’s position is not correct based upon the law as you believe it to be.

Q: Is there anything about the way you handle requests for temporary restraining orders and preliminary injunctions that you think the bar should be aware of?

A: Follow the law—give appropriate notice and be aware of possible bond requirement.

3. Final Pretrial Conference

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

A: To determine if the parties have done everything possible to try to settle the case. Set parameters for conducting trial.

Q: What topics or issues should counsel come prepared to discuss?

A: Settlement, anticipated motions in limine.

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

A: If it’s a jury trial, I am more aggressive and will often offer to help facilitate settlement.

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

A: Yes.

4. Jury Trial Practice

Jury Selection:

Q: How is voir dire conducted in your courtroom?

A: By the court with input from lawyers.

Q: Do you allow counsel to participate in voir dire? If so, to what extent?

A: Only through the court.

Q: What is your due date for requested voir dire questions?

A: 1 week prior.

Q: Do you allow or encourage the use of jury questionnaires?

A: Allow on very limited basis.

Requested Instructions:

Q: When do you require requested instructions to be submitted?

A: One week prior I require counsel to have met and agreed upon a set of instructions. Those not agreed to should be accompanied by supporting law.

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 sufficient legal authority?

A: Yes, unless it is contested.

Q: Do you have a set of stock jury instructions that you use?

A: Yes, but if counsel agree upon a set I will normally use agreed-to instructions.

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

A: Yes.

Trial Procedures:

Q: What is your preferred trial schedule (e.g., 9 to 5 with an hour for lunch, 8 to 2 with no lunch, etc.)?

A: 9 to 5 with 1-1/2 hours for lunch.

Q: What are your preferences with respect to motions in limine and other trial related motions?

A: Know what they are at pretrial and schedule hearing prior to trial.

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

A: Counsel should attempt to work out schedule—I will take witnesses out of order.

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

A: Have them marked prior to start of trial.

5. Bench Trial Practice

Q: What are the major differences, in your courtroom, between bench trials and jury trials?

A: In bench trials, I will often ask questions.

6. Thoughts on Effective Advocacy

Q: What makes an effective advocate in jury arguments?

A: Treat them as if they are an equal and intelligent. There is a happy medium to speaking down to them and speaking over their heads.

Q: What are the most common mistakes made in argument?

A: Talking down to the jury. Repeating arguments. Being derogatory about the other side.

Q: What are some techniques that do, or do not, work effectively in the examination of witnesses?

A: Does not work to become too aggressive with witness.

Q: Do you find the use of computer-assisted presentations (e.g., PowerPoint) effective and/or useful?

A: Yes.

7. Criminal Matters

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

A: After having contacted prosecutor, call my clerk, and give a reason—she will ask me—and follow up with order.

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

A: Usually only once after arraignment. Other side must have notice.

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

A: Anything they think will be helpful to their client.

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

A: Not usually.

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

A: If convicted of DUI—general rule: do jail time.

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

A: I will take private counsel before PD at the beginning of the calendar—after that if you will stand I will call on you. I don’t require you wait to the end of the calendar.

8. 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: Preparedness! – Preparedness!

Q: What do you want to have on temporary order issues?

A: Documentation with proffers.

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

A: I will interview on the record in chambers but without parties or counsel.

9. Discovery Practices

Q: What is your approach to resolving discovery disputes?

A: Telephone conference.

Q: What are your thoughts on imposing sanctions for discovery abuses?

A: Counsel need to be reasonable—but if there is clear abuse, sanctions are possible.

Q: Are you generally available to solve problems that arise during a deposition?

A: No.

10. Thoughts on Courtroom Protocol

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

A: Not generally. I will not allow lawyers or parties to speak derogatorily to each other.

Q: Do you impose any limitations on courtroom movement (approaching witnesses, podium, etc.)?

A: Speak from the podium—ggeneral rule. Ask to approach a witness only once with request to approach thereafter without asking. This lets witnesses know they are being protected.

11. Other Miscellaneous Issues

Q: What are your opinions regarding courtroom dress?

A: Coat and tie for men. Business dress for women.

Q: Do you allow children in your courtroom?

A: Yes.

Q: Do you allow cell phones in your courtroom?

A: Only if turned off.

Q: What, if anything, do you do to enforce promptness in your courtroom?

A: I start court when I say I will start.

12. Clerk’s Comments

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

A: Teri Sparrow, 447-3850

Q: My clerk wants you to please do these things:

A: –State your name in Court.
–Mark Exhibits in advance.
–Call for continuance of hearings with the other parties on the phone.
–Phone messages—lleave name, name of case and case #.


Biographies of 2nd District Judges