Bench Book
Judge John Kennedy
QUESTIONNAIRE FOR JUDGE’S BENCHBOOKJUDGE: John Kennedy - Third District Court
Updated March 6, 2009
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. The are conducted both in person and by telephone. I prefer that counsel meet and stipulate to such issues.
Q: What are your preferences regarding Case Management Orders/Scheduling Orders? Do you require that specific things be included in such orders?
A: For high-profile or complex cases, case management orders are helpful – I follow the outline given by the Court. I include the following in every scheduling order: “The parties shall report in writing by (date) concerning the results of their good-faith efforts to mediate a settlement of all outstanding issues.”
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, I appreciate courtesy copies of briefs being delivered to my chambers. The timing depends on the complexity of the matter; briefs should be delivered 1 week prior to the hearing. I also appreciate binders which contain all relevant memos and attached exhibits.
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: Yes, I schedule hearings on motions automatically upon receiving notices to submit.
Q: Under what circumstances do you decline to grant a request for oral argument?
A: Generally, I would not decline such a request.
Q: What is your policy on allowing overlength memoranda?
A: I frown on such requests. For motions for summary judgment, one motion is allowed. Attempts to file serial motions will not be permitted.
Q: What separates a useful brief from one that is unhelpful?
A: Focus on key issue; give best authority with quote of holding. If a lawyer uses the word “disingenuous,” his/her client will lose that motion. :-)
Q: Do you prefer that counsel provide copies of the relevant cases prior to a hearing?
A: This is helpful.
Q: What makes an effective motions argument?
A: Short and to the point. Be sure to first answer the questions posed by the Court.
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 Rule.
3. Final Pretrial Conference
Q: In your view, what is the purpose of a final pretrial conference?
A: 1) outline issues;
2) jury problems;
3) define claims;
4) consider case-specific voir dire and case-specific instructions; and
5) review settlement chances.Q: What steps do you take, if any, at a final pretrial conference to encourage settlement of the case?
A: Strongly encourage parties to settle. I will refer some cases to other judges to act as a mediator if the parties agree this would be helpful.
Q: Do you require clients to be present at final pretrial conferences?
A: In civil cases, a representative with authority should attend.
4. Jury Trial Practice
Jury Selection:
Q: How is voir dire conducted in your courtroom?
A:See the Civil Trial Outline at the end of this profile. We use a jury biographical card which deals with general information. Certain stock questions are asked in all cases. Case-specific questions are also asked.
Q: Do you allow counsel to participate in voir dire? If so, to what extent?
A: The Court conducts the voir dire. When completed, I generally give counsel an opportunity to ask some follow-up questions.
Q: What is your due date for requested voir dire questions?
A: Six to eight weeks before trial.
Q: Do you allow or encourage the use of jury questionnaires?
A: In complicated or high-profile cases.
Requested Instructions:
Q: When do you require requested instructions to be submitted?
A: In complicated or high-profile cases.
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: I ask counsel to first attempt to agree upon instructions with opposing counsel. All non-agreed instructions (with citations) and all stipulated instructions (without citations) must be submitted in electronic and hard-copy. Electronic formats must be Word or WordPerfect (not pdf). It is not necessary to submit the Court’s stock instructions (see Trial Outline below). Cite to instructions on Court’s website, MUJI 2, MUJI, or cases (in that order).
Q: Do you have a set of stock jury instructions that you use?
A: Yes. See Trial Outline below.
Q: Do you prefer to receive an electronic copy of requested instructions?
A: Yes along with the hard copy. Electronic should be in Word or WordPerfect format, not pdf.
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: Generally, jury trials begin at 8:30 with counsel. The jury panel is brought in by the Bailiff about 9 or 9:15. Usually, the selection is completed by 11:30 am or noon. Once testimony begins, we generally start at 9 am, with a 15 minute break in the morning about 10:30, an hour and 15 minute lunch break, an afternoon break about 3 pm. I try to finish each day between 4:30 pm and 5 pm.
Q: What are your preferences with respect to motions in limine and other trial related motions?
A: Submit in ample time prior to trial, usually 6 to 8 weeks.
Q: What are your preferences with respect to trial exhibits?
A: I ask Plaintiff’s counsel to prepare binders containing five sets of the exhibits. Parties should try to stipulate to authenticity and possibly even admissibility prior to trial. Usually, parties exchange all trial exhibits one month prior to trial. The five sets are for the Clerk (the official copy), the witness, the Bench, and each counsel table. Sometimes, counsel prepare an extra set for display to the jury. The exhibits should be pre-numbered consecutively 1-whatever. No need to designate as P-1 or D-25, etc. Additional exhibits, not anticipated prior to trial may be added to the end. Only exhibits in the binders may be used, unless not anticipated or oversized. Counsel may use blow-ups or overheads of exhibits in the binders, but must know the proper exhibit number.
5. Bench Trial Practice
Q: What are the major differences, in your courtroom, between bench trials and jury trials?
A: Bench trials move faster; evidentiary issues are not as picky.
Q: Do you appreciate or require proposed findings of fact and conclusions of law from counsel?
A: Generally. I have found that counsel frequently do not use enough care in preparing detailed findings and conclusions.
Q: Do you appreciate or require trial briefs from counsel?
A: Generally, but not more than 5 or 6 pages.
6. Thoughts on Effective Advocacy
Q: What makes an effective advocate in jury arguments?
A: Simple, direct – no theatrics. Usually 20-30 minutes for an Opening and 45 minutes for closing would be sufficient. I give both sides the same amount of time. Plaintiff may reserve time on closing for rebuttal.
Q: What are the most common mistakes made in argument?
A: Too much detail. Poor analogies.
Q: What are some techniques that do, or do not, work effectively in the examination of witnesses?
A: Don’t argue. Make the point and move on. Don’t raise immaterial objections. Counsel must know the rules of evidence, particularly on hearsay objections. Do not object on hearsay when the matter being offered is not for the truth of the matter asserted. Only the interrogating counsel may object on the basis of “non-responsive answer.”
Q: Do you find the use of computer-assisted presentations (e.g., PowerPoint) effective and/or useful?
A: Only if the attorney is very familiar with the system and has a back up if there’s a problem.
7. Criminal Matters
Q: How do you handle requests for continuance on pretrials, arraignments or roll calls?
A: Once the trial is set, need to show good cause for continuance. For R/C’s arraignments, defendant must waive speedy trial issues if a delay is requested.Q: When may the issue of bail best be addressed in your courtroom?
A: At any time with proper notice to the opposing side.
Q: What information do you want from counsel at the time of sentencing?
A: – Comments and corrections on PSR;
– Coordinate input from family/victims;
– Suggest alternatives which are reasonable.Q: Are private pre-sentence evaluations useful or encouraged?
A: They would be considered.
Q: Do you have any standard sentences the bar should be advised about, i.e., DUI sentencings, acceptance of alcohol-related reckless?
A: No.
Q: How should counsel on busy law and motion calendar handle calling a case?
A: Coordinate with other counsel present and with courtroom clerk. I like to handle in-custody defendants first.
8. Special Issues for Domestic Cases
Q: Do you have a policy on child interviews with respect to custody?
A: In general, I would not conduct an interview with a child. I rely on GAL recommendations, the parties, and experts.
9. Discovery Practices
Q: What is your approach to resolving discovery disputes?
A: Generally, I favor open, full, accurate and prompt responses to appropriate inquiries. Where problems exist, I use protective orders liberally.
Q: What are your thoughts on imposing sanctions for discovery abuses?
A: I favor strong sanctions.
Q: Are you generally available to solve problems that arise during a deposition?
A: Yes.
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: Rarely–but I will generally ignore comments that are not civil. Such attorneys undermine their client’s case with incivility. I do not allow the use of “disingenuous” or “with all due respect.”
Q: Do you impose any limitations on courtroom movement (approaching witnesses, podium, etc.)?
A: I like attorneys to stand behind (not beside) the podium. They may turn the podium to the jury when giving opening or closing statements. It is not necessary to ask leave to approach. I will inform counsel if I think the privilege is being abused.
11. Other Miscellaneous Issues
Q: What are your opinions regarding courtroom dress?
A: Men and women attorneys should wear formal business attire. Witnesses should also be dressed appropriately.
Q: Do you allow children in your courtroom?
A: If they’re quiet.
Q: Do you allow cell phones in your courtroom?
A: If they’re silent and hidden from sight. There is no audio or video recording without the express permission of the Court, which must be requested in writing in advance (except for photos following an adoption proceeding).
Q: What, if anything, do you do to enforce promptness in your courtroom?
A: Impose sanctions for unexplained problems.
12. Clerk’s Comments
Q: The name and phone number of my clerk(s) is:
A: Melba Roberts - 238-7507
Kimberly Sheffield - 238-7508Q: My clerk wants you to please do these things:
A: Direct communications to clerk. Always indicate opposition side’s position on any motion.