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Bench Book

Judge Ryan M. Harris

QUESTIONNAIRE FOR JUDGE'S BENCHBOOK
JUDGE: Ryan M Harris - Third District Court

1. Discovery

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

A: Setting an initial case schedule is a task that should be, and is in most cases, handled by the attorneys, to the extent that the court-generated deadlines are unclear or in dispute. In most cases, if the deadlines are unclear, counsel should simply meet and confer and submit a stipulated case management order. I find that attorneys generally do a good job of working together to set dates. I do not require specific things in every case management order but will handle each matter case-by-case. However, there are still cases that require scheduling conferences, and I will schedule such a conference at a party's request if needed. Because the cases in which this occurs are usually exceptional in some way, most of the time I ask that the conference take place in person rather than over the telephone.

With regard to modifying scheduling orders, if the modification is stipulated to by all parties I will in most instances simply sign off on the modification. When the modification is not stipulated, I will handle the request for modification on a case-by-case basis, taking into account the stage of the case, the nature of the request, etc.

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

A: I will get involved to the extent I am asked to get involved. However, I expect compliance with the new procedure for expediting discovery disputes, formerly known as Utah Code of Judicial Administration 10-1-306 and now known as Utah Code of Judicial Administration 4-502. This rule has been in effect in the Third District since November 2011, and yet it is still common to see instances where this procedure is neglected. I find it to be a helpful procedure, one that really does usually make the process of resolving discovery disputes more efficient and useful to litigants. Please use it!

Once a Statement of Discovery Issues is submitted for decision (and these need to be submitted for decision pursuant to Rule 7, just like any other motion), I will review the briefing within 24 hours of the submittal, and determine whether I can resolve the issue on the pleadings and simply sign one of the proposed orders, whether to schedule a telephone conference with counsel to discuss the matter, whether to schedule an in-person oral argument, or whether to ask for additional briefing. In most cases, I will either simply sign one of the proposed orders, or set a telephone conference. Only in rare cases will I ask for additional briefing or set an in-person oral argument. If I feel that setting a telephone conference is the right approach, I will have my clerk contact counsel to schedule it, and I usually try to make those telephone conferences happen within a few days of submittal. I endeavor to make a decision on each Statement of Discovery Issues within a week of submittal, and in nearly every case I have been able to do so.

Although it is not my typical practice to award attorneys' fees in discovery disputes brought under the new procedure, and will not generally do so when I view the dispute as having arisen in good faith, I have done so on occasion and will do so where necessary to address perceived discovery abuses.

Q: What is your approach to granting extraordinary discovery?

A: If it is stipulated to by all parties, I will rarely second-guess counsel's unanimous desires. When it is not stipulated, I will handle the request on a case-by-case basis, taking into account the nature of the request, the nature of the case, proportionality, etc.

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

A: I am generally reluctant to impose sanctions. For the most part, I believe members of the Utah Bar are ethical, hard-working attorneys who are energetically representing their clients and, although discovery disputes often arise, I believe it to be the rare case where sanctions are warranted. However, I have imposed sanctions in appropriate cases, and will continue to do so in the future if I perceive that discovery abuses are occurring.

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

A: Yes. If I am not on the bench, I am willing to take phone calls from counsel at deposition.

2. Motions

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

A: Not generally. In the age of iPads and electronic technology, I can access your cases from anywhere there is wireless Internet access. In the rare case where an entire motion comes down to interpretation or application of a single case, it may make sense to attach that case to the brief, but by and large I do not need copies of cases, even unpublished ones.

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: In the vast majority of cases, I do not need courtesy copies, because I usually just download the briefs onto my iPad and read them that way. My need for courtesy copies is directly proportional to the size of your briefing and exhibits. That is, if the briefs are relatively thin with few exhibits, as is most often the case, I do not need courtesy copies. However, if the briefing is exceptionally lengthy, or if there are many motions to be heard together at the same hearing, or if the exhibits to your motion(s) are exceptionally voluminous, I find organized courtesy copies helpful, because I find voluminous documents less accessible and more difficult to manage electronically. If you do submit courtesy copies on a particular motion or set of motions, please do so comprehensively and submit all of the relevant briefs from all parties, and not just the ones you wrote.

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

A: As a practitioner, I often had trouble squeezing my arguments into the page limitations prescribed by Rule. As a result, I am very sympathetic to requests for leave to file overlength memoranda. It would be a rare case in which I would deny such a request. However, brevity matters, and while I am committed to reading every page of the briefs that are filed, counsel would do well to remember that the last few pages of a novella-sized brief, as a practical matter, may not get the same level of scrutiny as the first few pages.

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: All requests to submit are brought to my attention immediately upon filing. Upon receipt of a request to submit, I will make a decision as to whether to schedule a hearing, and if I determine that a hearing is necessary or would be helpful, I will schedule it. I do not prefer or require that counsel call to schedule hearings.

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

A: I will decline to grant a request for oral argument under various circumstances, such as, for instance, if the motion is unopposed, or if I determine upon review of the briefing that oral argument would not be helpful or that it would be more efficient to simply proceed without oral argument. If the motion is dispositive and contested, however, it will be a rare case in which I will decline to grant a request for oral argument.

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

A: Be respectful, even if you think the other side's argument is ridiculous. Shrill adjectives and overwrought sentiment do not usually play well in written briefs. Pay attention to the structure of your brief, and the order in which your arguments are organized and the way they fit together. In opposition and reply briefs, make sure that you address, at least in some way, all of the arguments made by the other side, because an argument that goes ignored is often presumed to be conceded. Typos and formatting errors are distracting to the reader, and relatively easy to fix, so take the time to edit your submissions.

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

A: With regard to oral argument, every attorney has his or her own style, and attorneys who try to adopt a style that is not their own are usually uncomfortable. I have seen effective motion arguments made in very different ways and using very different approaches. But a few generalities can be made. To be effective, attorneys should not simply re-state the briefing but, rather, should stand up with a few discrete points to make, and should proceed to make those points. To be effective, attorneys need to know when to concede points (which can sometimes be very helpful to your credibility) and when to stand firm. Oral argument in my court is very interactive—it is highly unlikely that your presentation will go uninterrupted by questions—and attorneys should spend some time prior to argument giving some thought to predicting what kinds of questions I might ask and preparing answers to them. Finally, when asked a question, attorneys should give a direct answer and not try to dodge the question.

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

A: It will be a rare case where I enter a Rule 65A(b) TRO without notice to the other side. If you want me to enter a TRO without notice, there needs to be a very good reason. Most of the time I will schedule a non-evidentiary hearing after notice to discuss with counsel whether a TRO should enter, and later of course, an evidentiary hearing on the PI. On the merits, in most cases, TROs and PIs come down to two things: likelihood of success and irreparable harm. Counsel seeking a TRO (in addition to a PI) should be prepared to explain why irreparable harm will result in the next few days or weeks, before a preliminary injunction hearing can be set. Finally, the portion of the rule regarding security should not be neglected, and I will usually require some sort of security for TROs and PIs.

3. Final Pretrial Conference

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

A: A final pretrial conference has several purposes. Most importantly, the conference is set to make sure the case is ready for trial. Secondarily, I will also press the parties on whether and to what extent they have made efforts to resolve the case, and offer them the opportunity to speak to each other, outside my presence, if they think that would be fruitful. Also, we will discuss issues related to the pretrial disclosures (e.g., witness lists, exhibits). In cases where there are numerous pretrial motions (e.g., motions in limine), I require that these be filed far enough in advance of the pretrial to allow them to be argued at the pretrial, so that the amount of trial time that is devoted to argument is minimized. In jury cases, at the pretrial we will also discuss jury voir dire issues and preliminary jury instruction issues. Generally, the final pretrial is an opportunity to do as much housekeeping as we can prior to the trial, so that when trial starts we are ready to hit the ground running.

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

A: This is encouraged but not required.

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

A: As stated above, any motion in limine or other pretrial motion that counsel is aware of in advance should be filed early enough so that it can be fully briefed and ready for argument at the pretrial.

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

A: I find trial briefs quite helpful, at least in bench trials, and especially in the more complex cases. However, because I know that attorneys have a lot to do to prepare for trial, and because I know that preparing trial briefs can be expensive, I instruct counsel that trial briefs are optional but not required. I will usually give the parties a deadline by which to file optional trial briefs.

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 will begin the voir dire process by asking the basic questions and then some of the non-basic questions, but I will invite counsel to participate in the process. I have found that there are some categories of questions that are better asked by the attorneys than by the judge, and I invite the attorneys to participate in the questioning of the jury panel. However, all questions asked by the attorneys to the entire panel must be Yes/No questions, vetted by me in advance (usually at the pretrial), which are designed to elicit a simple show of hands from affected jurors. Following questioning of the panel, we will follow-up as needed with individual jurors outside the presence of the panel, and during this phase of voir dire I allow the attorneys much more flexibility in terms of the questions they can ask.

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

A: Questions need to be submitted far enough in advance of the pretrial for us to be able to discuss them at the pretrial.

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

A: I will almost always allow the use of jury questionnaires, as long as the questionnaire is one page long and can be filled out by the panel on the first morning of trial. If the language of the questionnaire is not stipulated, it needs to be discussed at the pretrial. However, if counsel wants to use a longer questionnaire, or wants to have the questionnaire filled out sooner than the morning of trial, I am much more skeptical (these requests raise logistical problems that must be dealt with), and counsel should bring the matter up by motion far enough in advance to be discussed at the pretrial.

Jury Instructions:

Q: When do you require instructions to be submitted?

A: Far enough in advance to be discussed at the pretrial. In an ideal world, counsel show up at the pretrial with a set of stipulated instructions that cover nearly all of the issues, leaving for discussion only a limited number of non-stipulated instructions. It is important that we nail down, at the pretrial, at least the instructions that are to be given at the beginning of the case upon empaneling of the jury. In a multi-day trial, discussion of some of the post-evidence jury instructions can sometimes be postponed if necessary to a time during trial.

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

A: I have a set that I am comfortable with, but if counsel stipulate to use a different set I will not stand in the way of that.

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 the instructions are stipulated, no citations are needed. On the non-stipulated instructions, citations should be included, and if the instruction in question is a MUJI instruction, citation to MUJI is sufficient.

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

A: Yes, but not until after we have discussed them at the pretrial.

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: This depends upon the length of the trial. For shorter trials (that last less than 3 or 4 days), I use the more traditional schedule. For longer trials (anything longer than 4 or 5 days) I use the non-traditional 8-to-2 schedule, so that the rest of my calendar does not get completely ignored for a lengthy period of time.

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

A: To the extent possible, I prefer to handle these issues at the pretrial, simply so that we can minimize the time spent discussing such issues during trial. However, I recognize that only a limited subset of these issues can as a practical matter be handled prior to trial, because in many cases admissibility will depend on how the exhibit or evidence is presented at trial.

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

A: If the exhibit or demonstrative is stipulated, go for it. If it is not stipulated, and you plan to use it during your opening statement, please bring the issue up prior to trial so that I can resolve it.

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

A: These should be disclosed in advance of the pretrial so that any objections can be discussed then. Counsel should pre-mark their exhibits, with the plaintiff using numbers and the defendant using letters, and counsel should provide copies of those exhibits for not only opposing counsel but also for the witness and for the judge. On the morning of trial, counsel should provide two copies of the exhibit list, one for my clerk and one for the bench.

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

A: No, other than to encourage you to test your technology in the courtroom before trial to make sure everything works the way you want it to. Technology is wonderful when it works, but can really gum things up when it doesn't.

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

A: The only preference I have in this regard is that witness scheduling be done efficiently, so that there is no down time or wasted time, especially where a jury is involved. Counsel are expected to have their witnesses present and ready to go.

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

A: Yes. It is always nice, though, when attorneys ask before engaging in such movement.

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: In bench trials, there is obviously more flexibility in terms of scheduling witnesses, taking witnesses out of order, and related logistical issues, and there is in some respects less formality. However, the Rules of Evidence apply with equal force in a bench trial. Also, at the conclusion of bench trials I will want to engage with counsel about the case, and pose questions that have inevitably arisen in my mind during presentation of the evidence. So be prepared for a non-traditional (and much more interactive) closing argument procedure at the conclusion of bench trials.

6. Post-Trial Issues

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

A: Not generally, although in some cases I will ask for them in advance of trial, and in some cases I will ask for them from both parties after the trial. More commonly, however, I will wait until after trial and, if it is possible for me to make a ruling from the bench immediately after or soon after trial, I will ask the side that substantially prevailed to compile the findings and conclusions based on the oral ruling.

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

A: In cases where I am able to make a ruling from the bench after closing argument, I will not require post-trial briefing. However, in cases where I am not in a position to make a ruling from the bench after closing, I will usually require post-trial briefing, and after our interactive closing argument counsel will usually be aware of the issues that are most important and be able to focus the briefing on those issues.

7. Technology in the Courtroom

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

A: I allow counsel, within reason and in keeping with applicable rules, the freedom to employ technology as they see fit.

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

A: They certainly can be effective and useful. But there are many ways to make an effective presentation in the courtroom, and in many cases blow-ups of exhibits and a simple overhead projector can be as effective as anything else. Counsel who choose to use cutting-edge technology should make sure that the system is set up correctly and actually works, for one thing, and then should also make sure that the technology does not distract from the actual substantive presentation.

8. Criminal Matters

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

A: On a case-by-case basis. Sometimes there are good reasons for continuances. But I will quiz the attorneys as to the basis for the extension, and I will try to keep the cases moving forward as quickly as possible.

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

A: Anytime, provided that the prosecution has sufficient notice (usually a week) that the defendant intends to address bail.

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

A: No standing policy. Pleas in abeyance can be a useful tool to resolve cases, and I do not discourage their use where appropriate.

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

A: Most of the information I want is contained in the AP&P or County presentence reports. In cases where no PSR has been generated, I will want to know, among other things, what the position of the parties is with regard to sentence, including the position of the victim. I will want to know the defendant's age, criminal and probation history, and general living situation (e.g., employment and residential arrangements), as well as whether there are any addiction issues or anything else extraordinary about this particular case.

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

A: If AP&P or Salt Lake County Probation Services has compiled a PSR, there is generally no need for a private one. In some cases where, for whatever reason, AP&P cannot prepare a PSR, I have seen private PSRs that have been helpful.

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: Once your case (or cases) is ready, just proceed to the lectern (after making sure that none of the other attorneys are in line ahead of you) and ask me to call a particular case. If you have multiple cases, it helps move things more efficiently if you wait until all of your cases are ready.

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: No.

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

A: This will vary case by case, depending on what the specific issues are.

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

A: Counsel should endeavor to meet and confer and create a case management order, and if they are unable to agree, they should ask for a scheduling conference.

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

A: I do not have a strict policy. I will handle requests to conduct child interviews on a case-by-case basis. Previously, when district courts had more freedom to appoint public guardians ad litem, I was probably more skeptical of requests to conduct child interviews, because the child's point of view could best be communicated to the court through the guardian. However, now that our ability to appoint guardians is more limited, I am more receptive to requests to conduct child interviews. Certainly, the child needs to be well into the teenage years, and counsel making the request should be prepared to demonstrate some special reason as to why I ought to conduct the interview. As a matter of procedure, if the request is granted, and we are in Matheson, I will interview the child in the courtroom on the record while counsel and the parties watch and listen in chambers on the TV feed.

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: Lack of civility only rarely has been an issue in my courtroom. As mentioned above, I think members of the Utah Bar are generally civil and courteous to each other, even while zealously representing their clients. I have never thought, and do not think now, that here in Utah we have a major problem with civility and professionalism. However, once in a while an issue does arise, and so far I have never had to go beyond a simple admonishment to counsel to be more civil or to tone it down a notch.

Q: What are your opinions regarding courtroom dress?

A: Attorneys should be professionally attired. I am less strict when it comes to how individual litigants and witnesses are attired.

Q: Do you allow children in your courtroom?

A: Certainly. Children are citizens too, and our courtrooms are open to the public. If children become agitated or become distracting to the proceedings, however, then I will ask that the child be taken out into the hallway until calm can be restored.

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

A: Cell phones are allowed, although I require that they be silenced. In addition, I require that no photographs or audio or video recordings be taken with cell phones without previously complying with applicable rules governing cameras in the courtroom.

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

A: Lack of promptness is generally not a problem. Attorneys and counsel generally appear on time. If counsel or parties are late, I will generally have my clerk call to see if there has been a problem. If you are running late or encounter an issue that prevents you from appearing on time, please call the court clerk and make us aware of your issue.

11. Attorney Interaction with Judicial Assistants

General comment: Currently, I spend most of my time in Summit County, which is where most of my cases are venued. However, I do still maintain a small docket of Salt Lake/Matheson cases, and spend a couple of days per month in Matheson attending to those cases. When I am in Salt Lake, I inhabit Courtroom W46, and I share judicial assistants with Judge Shaughnessy. When you have a question for my judicial assistants, please do not hesitate to call. In fact, I encourage you to call—as a general rule, more communication beats less communication, and can sometimes serve to head off issues at the pass. Please take care, however, to call the Summit assistants for Summit cases, and the Salt Lake/Matheson assistants for Salt Lake/Matheson cases. And it goes without saying, but please endeavor to treat my judicial assistants with respect.

Q: The name and phone number of my judicial assistants is:

A: For Summit County cases:
Bridgette Blonquist: (435) 615-4303; bridgetteb@utcourts.gov
Brittanie Martindale: (435) 615-4305; brittanm@utcourts.gov

For Salt Lake/Matheson cases:
Amanda (Mandy) Acevedo: (801) 238-7302; mandya@utcourts.gov
Mark Paradise: (801) 238-7302; markp@utcourts.gov

Q: My judicial assistants want you to please remember these things:

A: “Be kind and courteous; that can go a long way.”
“Always remember that a failure to plan on your part does not constitute an emergency on our part.”
“When you are asked to provide your phone number for telephone conferences, please provide your direct line.”
“Please include your email address on your pleadings.”
“We do not have a drop box in Summit. Our office closes at 5:00 p.m.”

Biographies of 3rd District Judges