Bench Book
Judge Robert J. Dale
Scheduling Conferences
Q: Are scheduling conferences needed or used in your court? If so, are they conducted in person or by telephone?
A: Usually as requested by a party. Typically 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: No.
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. Ten (10) days in advance if possible, to Layton rather than Farmington. Where the pleadings are large or voluminous, it is helpful to have them in a tabbed and indexed binder containing all applicable pleadings of all parties – to be submitted by the moving party with a cover letter copied to opposing counsel setting forth the copies submitted.
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: Automatically, if a hearing has been requested or is desired by the court. Calls are helpful and essential if more than thirty (30) minutes will be required for argument. Counsel following Rule 7(d), and filing complete Requests to Submit for Decision, is expected and appreciated.
Q: Under what circumstances do you decline to grant a request for oral argument?
A: The court would seldom decline a request for oral argument, and then only where there is not a right to a hearing under the rules, the court has no questions regarding the issues and argument of counsel, and the court sees that a hearing would not be helpful to the court appropriately ruling.
Q: What is your policy on allowing over length memoranda?
A: Typically granted, if not excessive.
Q: What separates a useful brief from one that is unhelpful?
A: All the facts necessary to the later argument being logically set forth in the fact portion of the memorandum, with no overt legal argument interspersed; then, applying the arguably applicable law to those facts as a part of the later argument. Also, accurately quoting key portions of authorities relied upon, rather than just stating what the case holds, and succinctly setting forth the material facts of cases relied upon. Also, avoiding redundancy and otherwise getting to the point; being as brief as possible under the circumstances. Following Rule 7(c)(3) is essential.
Q: Do you prefer that counsel provide copies of the relevant cases prior to a hearing?
A: The key cases, yes.
Q: What makes an effective motions argument?
A: Understanding the judge has indeed reviewed and digested the written material when so stated up front, and therefore going right to the heart of and emphasizing, without undue repetition, the argument, while also making any new and relevant argument. Also, responding to any written argument not responded to in writing, e.g. responding to a reply memorandum. And, focusing on and directly answering questions from the bench as they come.
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: Except in extraordinary circumstances, the court expects counsel presenting the TRO motion to so advise any known counsel as soon as possible prior to submitting the motion. Also, to the extent there are disputed material facts, to come prepared to put on witness testimony at the preliminary injunction hearing, and arranging in advance, with the clerk, for sufficient but not excessive hearing time.
Final Pretrial Conference
Q: In your view, what is the purpose of a final pretrial conference?
A: To discuss the topics and issues counsel should be prepared to discuss as set forth below.
Q: What topics or issues should counsel come prepared to discuss?
A: Exhibits, including any anticipated objections to authenticity. Proposed jury instructions. Any remaining issues in need of resolution prior to trial.
Q: What steps do you take, if any, at a final pretrial conference to encourage settlement of the case?
A: Inquiring generally, as to settlement efforts and results to date, and offering whatever assistance the court can give in that regard.
Q: Do you require clients to be present at final pretrial conferences?
A: Not typically.
Jury Trial Practice
Jury Selection:
Q: How is voir dire conducted in your courtroom?
A: Typically by the court, including with requested questions from counsel that are submitted to and approved in advance by the court.
Q: Do you allow counsel to participate in voir dire? If so, to what extent?
A: Limited counsel-conducted voir dire may be permitted on a case by case basis as deemed appropriate by the court, provided it can be and is efficiently accomplished with advance approval.
Q: What is your due date for requested voir dire questions?
A: At least ten (10) days in advance of trial.
Q: Do you allow or encourage the use of jury questionnaires?
A: Allow on a case by case basis as deemed appropriate by the court.
Requested Instructions:
Q: When do you require requested instructions to be submitted?
A: At least ten (10) days in advance of trial.
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: Accompanied by supporting cases or citation to MUJI.
Q: Do you have a set of stock jury instructions that you use?
A: In criminal cases.
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: 8:30 a.m. to 5:00 p.m., with lunch from noon to 1:30 p.m.
Q: What are your preferences with respect to motions in limine and other trial related motions?
A: To be filed and heard more than thirty (30) days prior to trial.
Q: What are your preferences and/or procedures related to witness scheduling?
A: In logical sequence to the extent possible, but with leeway certainly for needed exceptions.
Q: What are your preferences with respect to trial exhibits?
A: That to the extent possible the parties stipulate to their authenticity and the use of copies where appropriate. Also, for all exhibits or copies of exhibits to be placed in duplicate tabbed and indexed three ring binders for the witness stand, the judge, and the parties’ counsel, pre-marked prior to the start of trial.
Bench Trial Practice
Q: What are the major differences, in your courtroom, between bench trials and jury trials?
A: Aside from the obvious differences, there may be, as deemed appropriate on a case by case basis, a bit more leniency in a bench trial on the admission of some evidence that can later be appropriately weighed by the court, as opposed to a jury trial.
Q: Do you appreciate or require proposed findings of fact and conclusions of law from counsel?
A: Advanced proposed findings and conclusions are typically not required or needed.
Q: Do you appreciate or require trial briefs from counsel?
A: Not required, but certainly can be helpful in appropriate cases and will be read.
Thoughts on Effective Advocacy
Q: What makes an effective advocate in jury arguments?
A: Presentation without being condescending or patronizing, speaking in a straightforward, sincere, understandable, committed, and personable manner, without undue repetition. Also, having a mastery of the facts as supported by the evidence, and using them to persuade, all without exaggeration. Exhibiting professionalism and courtesy to the fullest extent possible to opposing counsel, witnesses, and the court, again without patronizing. Addressing head on and attempting to appropriately dispose of problems in the case.
Q: What are the most common mistakes made in argument?
A: Merely repeating all or most of the arguments in the memoranda as though the court has not reviewed them (assuming the court lets counsel know up front it has reviewed them). Doing the opposite as indicated in the immediately preceding question. Also, not fully thinking about and addressing questions from the bench, which are asked to elicit information and clarify positions to aid the court in ruling; responding substantively well to questions that are difficult and uncomfortable to your case can often make a real difference in the outcome. Orally criticizing counsel or his or her client where not called for, rather than addressing the substance of the arguments; while some behavior simply must be addressed, more often with some forethought there’s a way to argue a position without making any direct or sleight-of-hand personal attacks. The use of sarcasm.
Q: What are some techniques that do, or do not, work effectively in the examination of witnesses?
A: On direct examination, while appropriately directing the testimony through proper and continued questions, allowing the witness to tell the story, without attempting to lead. On cross examination, virtually always using leading questions to which counsel knows the answer in advance. Treating opposing witnesses with as much non-patronizing courtesy as the circumstances permit. Asking questions to elicit only the information that’s needed, as opposed to just using up time; certainly not treating trial testimony as discovery (which requires proper advance discovery and preparation). As with written argument, brevity in obtaining live testimony is often very powerful.
Q: Do you find the use of computer-assisted presentations (e.g., PowerPoint) effective and/or useful?
A: Sometimes, if it can be done efficiently and without delay or fumbling.
Criminal Matters
Q: How do you handle requests for continuance on pretrials, arraignments or roll calls?
A: Typically grant, in the absence of obvious abuse.
Q: When may the issue of bail best be addressed in your courtroom?
A: Usually when a matter is called on the law and motion calendar.
Q: What information do you want from counsel at the time of sentencing?
A: Mitigating and aggravating circumstances, and sentencing suggestions tailored to the particular case.
Q: Are private pre-sentence evaluations useful or encouraged?
A: Not typically.
Q: Do you have any standard sentences the bar should be advised about, i.e., DUI sentencings, acceptance of alcohol-related reckless?
A: Not beyond what may be statutorily required. Sentencings are on a case by case basis, with input from the standard sources, e.g., PSI’s from AP&P.
Q: How should counsel on busy law and motion calendar handle calling a case?
A: Advise the public defender(s) as soon as a private attorney case is ready, and then through that pre-arrangement ask the court to call the matter.
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: Not beyond the applicable rules.
Q: What do you want to have on temporary order issues?
A: The commissioner’s recommendation, and specificity in the objection.
Q: Do you have a policy on child interviews with respect to custody?
A: Handled on a case by case basis.
Discovery Practices
Q: What is your approach to resolving discovery disputes?
A: At minimum, requiring counsel to follow the prior meet and confer rule requirements. Beyond that, encouraging all counsel to genuinely work to a resolution. Otherwise, ruling on motions as presented.
Q: What are your thoughts on imposing sanctions for discovery abuses?
A: A willingness to impose where appropriate.
Q: Are you generally available to solve problems that arise during a deposition?
A: Yes, except when in court.
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: Very seldom, and absolutely.
Q: Do you impose any limitations on courtroom movement (approaching witnesses, podium, etc.)?
A: Approaching witnesses and the bench with approval, and speaking from the podium whenever possible.
Other Miscellaneous Issues
Q: What are your opinions regarding courtroom dress?
A: No particular requirements as long as the dress is respectful to the court as an institution, except that shorts, tank tops, and bare midriffs are specifically prohibited.
Q: Do you allow children in your courtroom?
A: Yes, as long as they are not disruptive.
Q: Do you allow cell phones in your courtroom?f
A: For the time being, yes, if they are turned off or to vibrate only, and are not used in court except to retrieve calendar information or with specific court approval.
Q: What, if anything, do you do to enforce promptness in your courtroom?
A: Strive to start hearings and trials on time; the court is virtually always ready to start on time. The court does try to accommodate legitimate reasons for late starts.
Other Suggestions, Thoughts, Concerns
Suggestions from attorneys are welcome.
Clerk’s Comments
Q: The name and phone number of my clerk(s) is:
A: Glenda Pittman. (801) 444-4320.
Q: My clerk wants you to please do these things:
A: Sending emails rather than leaving voice mails is preferred when she cannot be reached by telephone (glendap@email.utcourts.gov), but she does return calls.