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Bench Book

Judge Thomas L. Kay

QUESTIONNAIRE FOR JUDGE’S BENCHBOOK
Second District Court

1. Discovery

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

A:I am here to help you resolve your cases. I will get involved, at your request in early scheduling or management conferences. Sometimes, I will do that on my own. I will also do scheduling conferences or other hearings by phone.

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

A:We follow Rule 4-502 of the Utah Code of Judicial Administration.

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

A:I like to get to the bottom of the discovery dispute as soon as possible. I do this by phone or in court.

Q:What is your approach to granting extraordinary discovery?

A:I like to approach this early in the case.

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

A:I grant attorneys' fees and have also dismissed cases for discovery abuses.

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

A:If available, I will also 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:Follow Rule 4-502.

2. Motions

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 What about unpublished cases?

A:Yes. If helpful for your position.

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:Yes. I like them at least three days before a hearing.

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

A:I have no policy. I do it on a case-by-case basis.

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:I do it both ways.

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

A:I always grant oral argument requests.

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

A:There is a saying “If I had more time, I would have written a shorter letter.” It takes more work to write a shorter brief or memorandum but it will pay great dividends with me.

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

A:Treat the opposing counsel, opposing parties, clerk, bailiff, jury, and me with respect. Address all remarks to me and not to opposing counsel. When I speak, don’t interrupt. Be on time and be prepared. Tell me what their clients want, why they want it, and why they should get it. Be prepared and get to the point.

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

A:Contact the other side before approaching me.

3. Final Pretrial Conference

Q:In your view, what is the purpose of the Final Pretrial Conference?

A:Jury trials begin in my court at the Final Pretrial Conference. It is there where we discuss juror questionnaires, voir dire questions and who will conduct voir dire, exhibits, witnesses, jury instructions, and special trial circumstances. I expect the attorneys to address at the Final Pretrial Conference all problems that they can reasonably anticipate.

I also discuss at the Final Pretrial Conference my practice of allowing jurors to ask questions during the trial. Jurors are told at the beginning of the trial that they will be able to take notes and also ask questions in writing. After a witness has been examined by direct, cross, and redirect, I ask the jury if they have any questions. If so, they write them down and hand them to the bailiff. I examine the questions and then have counsel approach the bench to review the questions and make any objections. If the questions are improper, they are not asked. If they are proper, I ask the questions and then give all counsel the opportunity to ask any follow-up questions. I have used this approach in a number of cases and have found that it keeps the jury more involved, the attorneys more aware of what the jury is concerned about, and does not add significant time to the trial.

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

A:See above.

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

A:I find out the parties’ concerns and positions and see if the case can be settled. I tell them an agreed-upon settlement is better than going to trial.

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

A:Yes.

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

A:I usually hear these motions at the Final Pretrial Conference.

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

A:I appreciate them but do not require them.

4. 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:I usually do it because attorneys do not want to. I allow counsel to participate if it is voir dire and not argument.

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

A:At the Final Pretrial Conference.

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

A:I allow in rare cases. When I do, they must be filed a week before trial.

Jury Instructions:

Q:When do you require instructions to be submitted?

A:I require that two copies of your proposed jury instructions be submitted at least two days before the trial or the date set at the Final Pretrial Conference.

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

A:Yes. They are given at the Final Pretrial Conference.

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:I require that two copies of your proposed jury instructions be submitted at least two days before the trial or the date set at the Final Pretrial Conference. One copy should be without citations or numbers. The other copy should be numbered and have citations. Instructions from MUJI can be listed by number and do not need to be written.

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

A:Yes and sent to my law clerk.

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

A:At the Final Pretrial Conference, if possible.

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:My trial schedule is 8:30 a.m. through Noon with a 10-15 minute break and 1:00 p.m. through 5:00 p.m. with a 10-15 minute break.

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

A:Before trial. I would rather address them at the Final Pretrial Conference.

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

A:That you have a stipulation they will be admissible in the case of exhibits and shown to the other side in the case of demonstratives.

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

A:Provide me a personal exhibit binder in bench trials and print an exhibit list for my in-court clerk.

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

A:Come in and try it out in the courtroom the week before the trial.

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

A:I expect attorneys to schedule their witnesses.

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

A:Within reason.

5. 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:I require that proposed Findings of Fact and Conclusions of Law be submitted at least two days before the trial. I like an opening statement that tells me what you want and why you should get it. This is especially applicable to divorce trials. I am here to decide the case. Don’t expect me to do your work.

6. Post-trial Issues

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

A:I require that proposed Findings of Fact and Conclusions of Law be submitted at least two days before the trial.

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

A:I appreciate but do not require them.

7. Technology in the Courtroom

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

A:I allow it.

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

A:No opinion.

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

A:No opinion.

8. Criminal Matters

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

A:I will allow on a limited basis or by stipulation of counsel.

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

A:At the first appearance and when there is a change of circumstances.

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

A:I generally approve.

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

A:Whether they agree with the presentence report. If they do not, tell me why it should not be followed.

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

A:Not if there is a presentence report by Adult Probation & Parole.

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

A:Not really.

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

A:First come, first served.

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

A:Control your clients and witnesses.

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

A:Control your clients and witnesses.

9. 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:I don’t like attorneys who start acting like their clients. I think attorneys should tell their clients that they cannot get everything they want.

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

A:This is done by Commissioners and not by me.

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

A:This is done by Commissioners and not by me.

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

A:This is done by Commissioners and not by me.

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:This is done by Commissioners and not by me.

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

A:This is done by Commissioners and not by me.

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:Provide me courtesy copies 48 hours before the hearing.

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

A:This is done by Commissioners and not by me.

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

A:This is done by Commissioners and not by me.

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

A:I only do it when the parties agree.

10. Courtroom Protocol

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

A:Sometimes. When it happens, I bring out the rules of civility and ask counsel if they feel they are following them.

Q:What are your opinions regarding courtroom dress?

A:Be a professional; look like a professional.

Q:Do you allow children in your courtroom?

A:Yes.

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

A:Turn off all cell phones.

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

A:I have ordered attorneys’ fees against people who come late.

11. Comments from Case Managers and Judicial Assistants

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

A:Lana Swanson 801-397-7037

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

A:Vicki Leo 801- 397-7033.

Q:My judicial assistant wants you to please do these things:

A:She is a human being, treat her like one. She is helpful and kind. She is only one person and will get back to you as soon as possible. Always leave your full name, who you represent, your phone number, and a short but specific message of what you need.

12: Other items

Q:Do you have a judicial biography that you would like hyperlinked to your bench book? If so, please advise us of the link to this information or provide us with a copy of the same so we may link it to your bench book.

A:Yes.

Q:Do you have any stock jury instructions, verdict forms, or other information you would like hyperlinked to your bench book? If so please advise us to the link to this information or provide us with copies of the same so we may link it to your bench book.

A:Yes.


Biographies of 2nd District Judges