Judge Denise Posse Lindberg

QUESTIONNAIRE FOR JUDGE’S BENCHBOOK
Third District Court

Preliminary comment: I wanted to answer all the questions posed in the questionnaire as thoroughly as possible so members of the Bar would have a clear understanding of what to expect when they appear in my court.  In doing so, however, this document has become much more lengthy than I initially anticipated.  Because of the length, I thought I’d distill the essence of my comments into four key points that summarize everything else I’ve covered below.  These four points are:

(1) I believe the rules of procedure are exactly that—rules, not suggestions for practice.  Please abide by them. 

(2) I also believe in and enforce the standards of professionalism and civility in my courtroom and in all interactions among Court and counsel.

(3) I do my best work when I am given adequate “lead time” to think about issues I’m called upon to decide.  In motion practice, please help me by getting me your own thorough submissions (i.e., well-researched and persuasively written legal analysis supported with copies of the key cases on which you rely) on a timely basis so I have adequate time to prepare. 

(4) The formalities observed in court are important to me.  The trappings and protocols of the court are designed to remind us of the importance of what transpires there.  Accordingly, I expect all who appear in my court to dress appropriately and demonstrate respectful courtroom behavior.

For those of you who want to know more, read on!

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, I use scheduling conferences in managing my caseload.  Depending on the need, those conferences may be held telephonically or in person.

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

A: In addition to covering the items required by Utah R. Civ. P. 26, (1)I specifically look for the parties to address alternative dispute resolution (ADR) as part of the Case Management Order.  As soon as I receive an attorney planning report and proposed scheduling order I review the submission and ask my clerk to schedule a brief (10 min.) telephonic conference with counsel to explain my position with respect to ADR (in particular, mediation) if the proposed order has not addressed that issue.  I recognize that for mediation to work as intended the parties must be willing to participate in good faith.  However, because I am a strong proponent of mediation I offer the parties an incentive to consider including mediation as an integral part of the case resolution process.  Specifically, the incentive I offer is that if the parties mediate their dispute in good faith, and those efforts are unsuccessful in resolving the dispute, when it comes time to schedule a trial the parties will be given a priority setting and I will do everything possible to protect that trial setting.  The parties are, of course, free to decline to participate in ADR, and I will still do my best to work with counsel to schedule a trial setting that is convenient to all concerned.  However, the trial setting will not be protected and may be rescheduled if a conflict arises with another case that has priority because it went to mediation.  At the time of the telephonic conference on ADR I do not require the parties to commit to mediation, but I do ask them to agree to a date by when mediation will be completed if the parties decide to mediate.  Usually I will propose that a completion date for mediation be set approximately 60 days after close of discovery.  (Of course, the parties are free to pursue mediation at any point they feel ready to do so.)  If the proposed case management order has not already addressed ADR, following the telephonic conference I will amend the proposed Order by entry of a brief Minute Entry reflecting the agreed-upon date. 

Finally, and this is very important to me, once I sign the Scheduling Order, those deadlines are not mere suggestions which the parties are free to ignore.  It is an Order of the Court and I will enforce it.  I encourage counsel to work in a cooperative manner with opposing counsel, and to extend basic courtesies such as those outlined under standard 14 of the Utah Standards of Professionalism & Civility.  However, that does not mean that counsel are thereby excused from complying with the deadlines specified in the Scheduling Order.  If in the course of the case it becomes apparent to counsel that the previously submitted Scheduling Order needs to be amended, then, prior to the expiration of those deadlines, counsel should confer and submit to the Court a stipulated Amended Scheduling Order.  If the parties cannot or will not stipulate, then the party proposing the change should proceed by way of motion to the Court in accord with Utah R. Civ. P. 7(b)-(d). 

Recently I have begun to see some counsel include, as part of the Case Management Order, their written commitment to abide by the Utah Standards of Professionalism and Civility in the management of the case.  While I don’t require it, I do encourage that trend as a way of reminding counsel of their professional responsibilities.

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 find they are useful to avoid delays resulting from filing backlogs.  I especially appreciate it when counsel also include print-outs of the principal cases on which they rely.  The timing of when those courtesy copies are submitted is also important.  They are not helpful if I receive them on the eve of a hearing, or even a day or two before hand.  To be most useful, they should be submitted at least one full week before the hearing. 

It is also helpful when the pertinent parts of the case(s) are highlighted.  Unless it’s a decision that has been handed down by a court in the prior 48 hours (and is directly on point) please do not hand me the cases at the hearing.  I want to see all applicable case law ahead of time so I can be properly prepared for argument.

All courtesy copies should be delivered to my clerk, with the date and time and nature of the motion(s) to be heard clearly marked.  While it is not a requirement, I would prefer it if the parties would cooperate in timely submitting a single “package” of courtesy copies including the motion, memoranda in support, opposition, and reply (if any), rather than waiting for each side to submit separately.  Generally it makes sense to have the moving party assume responsibility for that submission.

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: I do not schedule hearings automatically.  When a notice to submit is filed, I first review the request.  If the issue involves a dispositive motion and one or more of the parties have requested oral argument, my clerk will schedule oral argument and notify the parties.  In scheduling oral argument we try to set the hearing at least three to four weeks out to give counsel adequate time to plan their schedules.  However, if the date and time we do schedule creates conflicts with other commitments of counsel, please notify my clerk immediately.  The clerk will then schedule a telephone conference with all counsel to set another time. 

If the parties request in writing a hearing on a motion for which oral argument is not required by Utah R. Civ. P. 7, I will review the request and determine whether the briefing is adequate to allow me to rule, or whether oral argument would help clarify the issues and assist me in reaching a decision.(2) In determining whether to set a hearing I generally consider whether (a) there is a close legal question presented, (b) I need clarification regarding applicable facts on which the legal principle(s)  turn, or (c) there is no governing Utah law, i.e., all that is before me is persuasive authority.  Under those circumstances oral argument will likely be helpful. 

If the parties resolve the issue prior to the motion hearing, I would greatly appreciate prompt notification to my clerks, so that the hearing time can be reallocated to other matters.

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

A: As noted above, oral argument will be scheduled on any dispositive motion for which a hearing is requested. In a rare case (i.e., one side has requested oral argument on a dispositive motion, but the other side fails to oppose the motion and the moving party’s briefing makes clear that it is entitled to judgment as a matter of law), I may decline to schedule argument simply to conserve calendar time for disputed matters.

As to other motions, I think it’s fair to say my use of oral argument is evolving.  Previously (when my caseload primarily involved criminal matters), I rarely scheduled oral argument on non-dispositive motions in my civil cases, preferring instead to rule on the basis of the briefs.  I did that to preserve calendar time for criminal cases and for more complex civil matters.   Now that I carry a civil caseload, I am scheduling hearings much more frequently, and not just on dispositive motions.

That said, I do think civil lawyers overuse the request for oral argument.  I’m concerned that lawyers sometimes believe that their personal powers of persuasion adequately substitute for careful attention to the necessary research and drafting of the legal memorandum.  I want to see counsel make their best case in writing.

Q: What is your policy on allowing over length memoranda?

A: I strongly discourage over length memoranda and my general inclination is to deny such requests unless it is very clear that the complexity of the issues require more extensive treatment.  In most cases the page limits authorized by rule are more than adequate to allow a party to make its case.  Too often, the additional pages merely repeat the argument rather than yield greater insight.  Exercise your best efforts to provide succinct legal analysis and to apply the pertinent law to the facts of your case.  That said, I occasionally do grant leave to file over length memoranda, but don’t count on it.

Q: What separates a useful brief from one that is unhelpful?
                       
A: In responding to this question it’s easier to start with the DON’Ts:

1. Don’t include ad hominem attacks on opposing counsel or party(ies), or commentary the sole purpose of which is to denigrate your opponent.  Submitting memoranda containing such attacks only weakens your position in my eyes, because if there were substance to the legal claims there would be no need to rely on those strategies.
2. Don’t “spin” case law beyond a reasonable and defensible application of the case to your facts, and do not misrepresent dictum as a holding.  If the law supports your position, there is no reason to do so.  If it doesn’t, explain why this case is distinguishable and give me a reasoned argument in support of an alternative legal principle.  
3. Don’t ask me to rule contrary to precedent.  Only the appellate courts can reverse themselves with regards to the law.  All I can do is exercise my best judgment, with counsel’s assistance, to explain why a certain legal precedent is inapplicable to the facts before me.  
4. Don’t use “cookie cutter” motions and memoranda making generalized legal arguments that may not apply to the specific facts of a case.  Take the time to tailor an argument to the case you are bringing.
5. Be selective in presenting your arguments.  Generally I prefer to see your best arguments presented in order of priority.  Raising arguments that are only tangentially applicable to your case is not particularly helpful.
6. Don’t bold or otherwise highlight sentences or paragraphs in order to attract the Court’s attention.  I acknowledge that sometimes (in very limited circumstances) it can be helpful to underline a particular point, but, more often than not, it merely looks amateurish.
7. Don’t ignore, or fail to bring to my attention, authority that is contrary to your position.  It is each counsel’s duty, as an officer of the Court, to address and distinguish such authority.  It is unethical merely to rely on opposing counsel to raise contrary authority.
8. Don’t include excessively lengthy quotes (a page or more in length) in the argument.  Instead, submit a courtesy copy of the source you are citing, appropriately highlighted, so I can review it in context.  Also, don’t give me a half-page of string-citations, list your one or two best cases (with parentheticals that tell me why they are on point).
9. Don’t submit supporting affidavits based on “information and belief.”  I will strike such references without further consideration.

 As to the DO’s:

1. Do be honest in all your representations. 
2. Do invest the necessary time in preparing your submissions to the court. Your analytical work should be thorough, but succinct in its presentation.  Proof-read all your submissions to make sure spelling and grammar are correct.  Use proper Blue Book citation.
3. Do make sure that any exhibits referenced in the argument are, in fact, included in your submission.
4. Do make appropriate use of headings and sub-headings to signal your primary, secondary and tertiary arguments.

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

A: Absolutely, but please do so with sufficient lead-time (at least one week in advance) so I can have adequate time to review them along with your memoranda.

Q: What makes an effective motions argument?

A: Having a clear understanding of your key legal points and supporting law, being concise in your presentation, and exhibiting a professional demeanor.  More specifically, you will score points with me if you keep the following things in mind:

1. In 99.9% of cases I will have read all submissions ahead of time, including, in most cases, the key cases on which the parties rely.  Nevertheless, it is appropriate to ask if a brief review of the applicable facts would be helpful.  Generally it will not be necessary, and you should be prepared to launch into your key legal argument.(3)  
2. It is rarely, if ever, necessary to reargue every point in your memorandum of law.  Pick your one or two best arguments and tell me why the law compels the result you are advocating. 
3. You will help me by thoroughly understanding your opponent’s key arguments and being prepared to tell me why your position should nevertheless prevail.  This is particularly important in cases where the legal question is a close one, with persuasive authority on both sides but no controlling authority.  Be prepared to distinguish, factually and/or legally, the cases on which your opponent relies. 
4. If it’s a matter that will require me to construe a statute or constitutional provision, be prepared to articulate the competing policy considerations and why your position is consistent with, or furthers, those policy goals.
5. I tend to be an active questioner and appreciate direct answers to my direct questions.  If you can’t answer a question, say so, and tell me why.  “I don’t know” is perfectly acceptable—do not try to bluff your way through.  If necessary, offer to provide supplemental briefing on that point.
6. When you’re done making your points, ask me if I have any questions.  If I don’t, sit down.  You do not gain anything by unnecessarily repeating yourself, even if you’re still within your allotted time. 
7. If I rule from the bench I will expect the prevailing party to prepare, and timely submit, a proposed order that incorporates the legal reasoning given and any necessarily or reasonably implied supporting points.  However, be aware that I review closely all proposed orders, and will strike any statements that, in my opinion, stray too far beyond my express or reasonably implied findings and legal conclusions. On the other hand, I will give prevailing counsel some leeway in preparing the Orders, so I won’t be sympathetic to picayunish objections from the losing side.  The prevailing party should submit the proposed Order in either disk or CD format readable by WordPerfect (Corel) 10, as well as a hard-copy version.  I reserve the right to modify whatever proposed Order is submitted to make sure it appropriately reflects my reasoning.  
8. Finally, and most importantly, be civil and professional in your dealings with the me and your opponents.  Do not raise your voice to other counsel or to me.  Do not interrupt opposing counsel; you’ll be given ample opportunity to respond.  Address your comments to me, not to your opponent.  Do not suggest your opponent is lying or misrepresenting matters unless you are prepared to prove your charge.  Please do not impute malice to the “other side” if there are reasonable, benign explanations for the circumstances of which you complain.  There is no inconsistency between zealous advocacy for a clients’ interest and civility in arguing that position without resort to personal attack.

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

A: It amazes me how often such motions are brought where it is evident that little effort has been made to comply fully with all the requirements of Utah R. Civ. P.65A.  That includes, but is not limited to, notice to the other side or written explanation for why no contact has been made, and a request to have the Court set a  bond amount or an explanation why no security should be required.  Be aware that I generally will require the posting of security to protect the other side against an improvident grant of a TRO or preliminary injunction.  Be prepared to suggest an appropriate security amount, with supporting rationale.  My clerks have been instructed not to bring TRO requests to my attention unless these requirements have been fully addressed.

Like most of my colleagues, I do not appreciate seeing such motions being brought at the end of a day or late on a Friday afternoon.  There better be a good explanation for why the motion could not have been brought earlier.  Otherwise, be prepared to be turned down.   

As more fully discussed below, in domestic cases I will scrutinize closely why the issue prompting the TRO request could not have been more appropriately handled in the normal course by noticing the matter on the assigned Commissioner’s calendar as an Order to Show Cause (“OSC”) hearing.   

3. Final Pretrial Conference—purpose, topics for discussion, settlement discussions and presence of parties.

Final pretrial conference:  I generally try to schedule a final pretrial conference not more than two to three weeks before trial is scheduled.  If the case has a first-place setting, at that point I am assuming we will go to trial. Therefore, I use the final pretrial conference to (a) confirm the trial setting, (b) address any motions in limine, (c) address any issues related to exhibits, and (d) discuss proposed jury instructions.  As a result, I expect that all briefing—whether for motions in limine, objections to exhibits, jury instructions, etc.,—will have been completed at least one week before the final pretrial conference.  At the final pretrial I also want to receive, and have the parties’ exchange, final witness lists.  For each witness please submit a brief summary of the substance of the anticipated testimony, together with  expected length of time of the witness’s testimony on direct examination.

If a case that is set for final pretrial is in a second, third or fourth place setting, and case(s) in priority position appear likely to go to trial, we will try (with as much lead time as possible) to give notice of that fact to counsel in the lower priority cases so as to minimize the amount of preparatory work they have to undertake in time for the hearing.  Generally we will still go ahead and hold the pretrial conference to discuss new trial dates, and counsel should still be prepared to address any motions in limine.  Do not assume that just because the trial has been postponed, all the previously set dates (i.e., to argue motions) have also been postponed.  The only matters likely to be deferred to the new final pre-trial conference are likely to be those dealing with trial exhibits, witness lists and jury instructions.

Settlement discussions:  Because I require the parties to address mediation as part of the attorney planning meeting/proposed scheduling order, if mediation is not successful I generally leave it to the parties to pursue other settlement possibilities and do not involve myself actively in settlement discussions.  That is not to say, however, that at the parties’ request I would not consider assisting the process in whatever ways they may think would  be useful and appropriate.  Occasionally I may also take the opportunity during a final pretrial conference to explore with counsel and the parties exactly how far apart they are in resolving the matter, and whether there is anything else I can do to assist in resolving the matter short of trial.  For that reason I expect the parties to be present at the final pretrial, or at a minimum, to be immediately available by telephone.

4. Jury Trial Practice

A. Jury selection, voir dire, jury questionnaires.

Voir dire:  I will conduct the questioning of the jury venire.  However,  if there is a sensitive  issue which a venire member requests to discuss in chambers, I will usually ask the initial question(s) on that issue, but will permit counsel to do limited follow up questioning, if necessary.

I have a list of voir dire questions that I routinely employ, and counsel may suggest additional questions for consideration.  When proposing questions for voir dire there is no reason to duplicate my “stock” questions; simply submit those additional questions that focus more specifically on issues raised by the case.  Please submit any proposed voir dire questions by no later than three business days before trial.

Jury questionnaires:  I am willing to use jury questionnaires in an appropriate case, but I do have a two requirements: First, the parties must negotiate the specifics of any questionnaire and stipulate to it.  If there’s no stipulation, no questionnaire will be used.  Second, any questionnaire must be brief—preferably three (3) pages or less, but in no event more than five (5) pages in length.(4)  Questionnaires can be appropriate in high-profile, emotionally charged cases, where the topics on voir dire are of a highly personal nature, or where inquiry into the personal views of the jurors may taint the jury venire or create other problems if done in a more open forum. 

If the parties anticipate using a jury questionnaire, please notify me at least one month in advance of trial so we can make the necessary arrangements with the jury clerk to bring in the panel in advance of the trial date (e.g., on the Thursday prior to a Monday or Tuesday trial date).  Bringing a jury panel in early generally results in extra costs to the State and/or parties, so it is not something I encourage in most “routine” cases.  In civil cases the parties must be prepared to bear all costs of preparing and copying the questionnaires, and may also be asked to cover the additional jury fee costs.

B. Requested Jury Instructions—when to submit, form of instructions, stock instructions, electronic submission

Stock jury instructions:  Please plan on using my set of stock instructions; you can contact my clerks to request an electronic copy of my stocks (the most recent copy of my civil stocks is also included with this benchbook).  I strongly prefer using my own because I have spent a substantial amount of time putting them into “plain language” without altering the substantive meaning of the more traditional versions.  If, for some reason, something in my stocks creates a concern, please bring this to my attention so we can resolve it at the final pretrial conference.  Counsel will need to prepare and submit all substantive instructions applicable to the case to augment my stock instructions. 

Case-specific jury instructions: In crafting case-specific jury instructions the parties are strongly urged to consult and implement the principles and guidelines developed by the Utah Supreme Court’s Advisory Committees on Civil and Criminal Jury Instructions for drafting “plain language” instructions.   These guidelines, along with substantive instructions which the Committees have drafted to date, are posted on the Court’s website (www.utcourts.gov).  The Advisory Committees have the express approval and support of the Supreme Court to develop “plain language”  instructions for use by the Bar and Bench in civil and criminal cases.  As work is completed on particular instructions they are being posted on the website, and the Court is encouraging the Bar and Bench to consider using those instructions.   Other useful sources are “plain language” instructions developed by states (e.g., California) and federal circuit courts of appeal (e.g., Tenth Circuit).  Where no “plain language” instructions are yet available, the existing compilation of civil  Model Utah Jury Instructions (“MUJI”) is the most likely source of reliable substantive Utah law.  However, because the MUJI are dated, counsel should always confirm that those instructions continue to reflect current law.

Procedure for submitting instructions:  The parties should submit a hard-copy, stipulated set of jury instructions (including my applicable “stocks”) one week prior to the final pretrial conference.  If there are a few individual instructions to which the parties cannot stipulate, then the party proposing that instruction should submit its proposal along with copy of all supporting law (not just citations) for my review.  I will address all issues related to jury instructions at the final pretrial conference.  Three business days before trial Plaintiff should submit an electronic version of the approved jury instructions in Corel (WordPerfect) 10 along with a hard-copy version.

C.        Trial procedures—trial schedule, motions in limine, witness scheduling, trial exhibits.

Trial schedule:  In order to stay current with my caseload, each trial week is four (4) days long.  I allocate the remaining day to my law and motion calendar and/or to handling other paperwork demands.  Thus, cases which are likely to last longer than 4 days will, of necessity, go into a second week.  If a trial is anticipated to go longer than 4 days, at least one alternate juror will be selected.

Each trial day begins at 9:00 a.m. and recesses at 4:00 p.m.  Lunch is usually one hour, and the parties should plan on (at least) one 15 minute break at mid-morning and mid-afternoon. 

See discussion supra at 3 (Final Pretrial Conference) re: motions in limine, etc.

Witness scheduling: I strongly urge counsel to work cooperatively in the event that a witness needs to appear out of sequence.  Other than that, my only other concern in this area is that I don’t want to keep a jury waiting.  It is counsel’s responsibility to confirm that witnesses will be appearing as scheduled so as to avoid unnecessary delays.

Trial exhibits:  Please provide binder(s) with pre-marked trial exhibits at least three business days before trial.  Courtesy binder(s) with copies of trial exhibits should also be provided for my use.  At the front of each binder please include a list of all exhibits in that binder.

Objections:  At trial, do not make speaking objections.  State your ground in a word or two, preferably by referencing the rule on which you base your objection.  If I need you to elaborate I will invite counsel to join me at the bench.  Objections such as “asked and answered” do not carry much weight with me.  If I become concerned with cumulative questioning or harassment of a witness, I will intervene.

5.         Bench Trial Practice—differences in approach, proposed findings/conclusions, trial briefs.

Trial briefs:  At least one week in advance of a bench trial I want to receive trial briefs that expressly identify the factual disputes that exist, the facts that are being put forward in support of each position, and the legal argument predicated on each side’s view of the facts.  Please keep it as brief as possible, and definitely should not exceed eight (8) pages in length.  Finish the brief by restating what exactly it is that you’re asking for.  As noted previously, please also provide me with copies of the cases on which you rely, not just the citations.  Since I’m the fact-finder in a bench trial, be prepared to have me ask questions, including questions of the witnesses if I determine that counsel’s questioning has not fully addressed my “need to know.” 

6.         Thoughts on Effective Advocacy–in no particular order:

Preparation:  There is no substitute for thorough preparation.  Fortunately this is not often a problem; counsel are generally well versed on the facts and law of their case.  That said, over the last eight years there have been a couple of times when an attorney has been too cavalier about preparation—and it showed.  In one instance, an attorney could not answer simple factual questions I posed, and had to rely on opposing counsel to provide me with a copy of a document that was at the heart of the dispute.  The attorney’s client was present in court, and after the matter was handled I was left wondering what the client thought about his counsel’s performance. 

Civility:  Courtesy and civility are likewise essential.  This applies to all dealings with the court and the court’s clerks, and, at trial, with the witnesses and opposing counsel. I can’t emphasize this enough.  Simple civility goes a long way with juries, and with me.

Succinctness:  Keep in mind that your responsibility is to present your position persuasively, but that does not require rehashing your argument time and again.  Judges uniformly appreciate a succinct presentation of the issues and law during a hearing or trial.  If I have a question that has not been clearly addressed, I’ll let you know.  Otherwise, assume the fact finder “gets it” the first time, or, at most, by the second time you cover the point.  No need to go further.  In short, neither I nor members of the jury appreciate having time wasted by going over the same territory over and over again.  Not infrequently I’ve had jurors comment (after trial is over) about counsel who, during cross-examination, choose to go back over the exact same information that was elicited on direct examination.  Generally those comments, when they occur, are not positive.  I understand that counsel may want to “ease into” cross-examination in order to overcome witness reluctance, but think about how to do that in a way that doesn’t leave the fact-finder wondering about counsel’s ability instead of focusing on the substantive issues that must be decided. 

Limitations/weaknesses in your client’s position.  Know them!  Be willing to admit whatever weaknesses there may be in your argument or position than to try to ignore them or to hope I haven’t picked up on them.  The likelihood is that—with the help of opposing counsel or through my own research—II will have questions about that issue.  You will have more credibility if you’re forthright in dealing with the issue directly.  As referenced earlier, be prepared to tell me why, notwithstanding that problem, your position should still prevail. 

Credibility:  Your credibility is the most important asset you bring to court.  Never do anything that will undermine my trust in what you say or do.

7.         Criminal Matters

Other than items assigned on a master calendar (e.g., arraignment week and preliminary hearings) I’m not currently handling any criminal cases.  During the weeks that I’m assigned to do preliminary hearings, however, if you anticipate that a “prelim” will actually take place, please do not wait until just before noon to begin the hearing.  My clerks, my bailiff, and I all deserve the opportunity for an adequate lunch break, so don’t plan on starting a prelim after 11:30 am.  The same for the end of the day; we all have places to go and things to do after 5 pm, so no hearing will be started after 4:30 pm.  Also, if you anticipate that a preliminary hearing will take longer than a half-hour, let me know right away and it’ll be re-set as a special setting on my calendar.(5)

8.         Domestic Cases

Under the rules, Commissioners hear all preliminary matters and make recommendations to the Court.  Generally, those who largely limit their practice to domestic matters are well aware of the process and routinely go through the Commissioner.  For those who only occasionally practice in this area, however, please review the applicable rules and go first to the Commissioner.  Once the Commissioner has certified a particular issue or issues, then it is appropriate to call my clerk to get a date or send in a request for hearing.

Please remember that the Commissioner’s signed endorsement of a proposed Order as a recommendation to the Court becomes the Order of the Court irrespective of any objections which a party may bring thereto.  Thus, any possible objections that a party may have to a Commissioner’s recommendation does not constitute a valid reason for failing to abide by that Order pending a final determination by me regarding the merits of the Objection.  Do not expect that hearings will be set on Objections to the Commissioner’s recommendation; in fact, it is the rare case in which I will schedule a hearing on objections.  Therefore, your argument needs to be fully presented in the Objection itself, rather than assuming a hearing will be held.  Generally, any Objection should explain why the Commissioner has committed a clear and obvious error of law, or has otherwise abused his/her discretion.  In reviewing objections I grant substantial deference to the Commissioner’s recommendations because those recommendations deal with only temporary determinations on issues that will ultimately be fully resolved at trial.

Emergency hearings:  As a general proposition, I am not favorably inclined to hear requests for emergency “writs of assistance” or TRO requests in domestic cases.  To be sure, there are times when such processes are warranted, but, as a general rule, there are established court processes (such as requests for “Order to Show Cause” hearings) that are more than adequate to handle even those issues that require fairly expedited determination.  There have been times when I’ve been left with the definite impression that a party has sought to bypass the established processes by waiting until the last minute to create an “emergency” “requiring” immediate action.  Again, duly acknowledging that there are times when resort to extraordinary measures may be appropriate, someone bringing that kind of request better be prepared to explain fully why that particular case merits departure from the ordinary processes.

9.         Discovery Practices

I don’t know a single judge who likes to get in the middle of a discovery dispute, but we all recognize that there are times when it may be necessary to do so.  I urge counsel to remember to abide by (a) the Utah Standards of Professionalism and Civility; (b) the terms of the applicable procedure rules; and (c) the Case Management Order.  Specifically, be aware of the limited bases under which an attorney may instruct a deponent not to answer a question.  Try to work things out, but if you can’t; I’ll do everything I can to make myself available to address issues that have not been resolved through the parties’ good faith efforts to comply with the above-referenced standards.  Fortunately, my personal experience has been that most counsel handle discovery disputes professionally, and I have rarely been called upon to intervene.  If there’s an obvious abuse of the discovery process, however, I would have no problem with imposing appropriate sanctions. 

10.       Courtroom Protocol

Whatever counsel’s private views may be about any particular judge, the bar and bench generally recognize that the courtroom protocols that have developed over time are not about the judge himself or herself.  Rather, they stem from an attempt to recognize and honor the law itself, and the system that implements it.  Thus, I appreciate it when counsel: (a) rise to address the Court; (b) conduct their questioning of witnesses or make their arguments from the podium; (c) address their arguments to the Court rather than to opposing counsel; and, most importantly, (d) remember they are officers of the Court and demonstrate it in the courtesies they extend to the Court, the Court’s clerks, and the opposing side. 

Ad hominem attacks are never appropriate and will earn an immediate public rebuke from me.  Substantively, you may disagree with my rulings, but arguing with me will not help your cause or make me change my mind.  On the other hand, a respectful request to re-address a legal point in my ruling may well be persuasive.  At some point, however, I will rule, and that will be the end of it until an appellate court tells me differently.  Be sensitive to when that point has been reached. 

11.       Other Misc. Issues.

Courtroom dress:  Frankly it’s troubling that we even have to address this area as an issue; it should be self-evident that all who appear in court should dress appropriately, whether they are appearing as attorneys, as parties, or as witnesses.  Unfortunately, that is not always the case, so here’s what I expect:

1. For male attorneys, I expect suits or, at a minimum, a blazer or other sports jacket, dress shirt and slacks and a tie. 
2. For female attorneys, I expect dresses, suits or pantsuits. Please, no low-cut blouses or dresses, tank-tops without a jacket, no extremely tight clothing, and no flip-flops (yes, these are all actual examples from my courtroom experience over the past 8 years).  Please don’t embarrass yourself by inappropriate attire.  You really don’t want me to have to comment on it in court. 
3. Pro se parties:  Because pro se parties are acting as their own attorneys, these dress standards apply fully to them as well.
4. Others (i.e., clients, witnesses):  I believe it is counsels’ responsibility to advise their clients and/or witnesses to dress appropriately.  In addition to the above-stated “dos” and “don’ts,” also advise your clients or witnesses that shorts, cut-offs, torn t-shirts (or t-shirts with questionable messages), etc. are equally unacceptable.

 I reserve the right not to allow someone into court who is not dressed appropriately; so if you need that person’s testimony, please make sure that individual is dressed appropriately so he/she will not be asked to leave the courtroom. 

Children in courtroom:  As a general proposition, please do not bring children to the courtroom (obvious exceptions are adoptions, or instances when a school class is observing court proceedings).  The fact is that it is hard to keep children quiet for extended periods of time, so their presence can be disruptive to the proceedings.  Attempts to remedy such disruptions by going in and out of the courtroom can also create its own set of problems.   I recognize that an emergency may arise, or the cost of arranging for child care may present a financial barrier for an individual.  In that case, please have someone else accompany the parent (a family member or friend) who can stay outside the courtroom and care for the child(ren) while the client or witness is inside the courtroom. 

Cell phones:  There are signs posted at the entrance to every courtroom asking individuals to turn off their cell phones, but these signs are routinely ignored.  I find few things more annoying than a ringing cell phone.  Please take note of the posted reminder and make sure that you and your clients always turn off your cell phones before stepping inside the courtroom.  Moreover, while it is not as obviously disruptive, having a cell phone on “vibrate” is not an adequate substitute.  Turn OFF the phone.

Promptness:  I address this issue with some trepidation, because I’m well aware that I’ve had situations when I’ve been about to walk into court and the phone rings, or someone grabs me in the hallway with a request and I am detained a few minutes.  I’ve also had my share of occasions when I’ve not given myself sufficient lead-time in leaving my home in the morning and there’s an accident on the freeway that delays me.  That said, we owe each other the basic courtesy of starting and ending court on time.  In doing so we acknowledge that others’ time is just as valuable as our own.  When a matter is set for a particular time, I expect all of us (me included) to be there at least 5 or 10 minutes early, so the proceedings can begin on time.  I am particularly concerned about this when it comes to jury trials, I do not want to keep a jury waiting.

In terms of what I do to “enforce promptness,” up to now I’ve primarily relied on people’s good judgment and it generally has not been a big problem.  However, if it is my problem that we’re starting late, you deserve and will receive my apology, and if necessary, a brief explanation of the reason for the delay.  If it is counsel’s problem, I have been known to resort to mild “shaming” by commenting on the person’s tardiness.  I will not, however, delay excessively those who are there on time.  In appropriate circumstances I may cancel or reschedule a hearing and/or impose other sanctions, which could include dismissal of the case, the granting of the other side’s motion, or other remedies that may be afforded to me by law or through the Court’s inherent powers.

Equipment:  We have easels, notepads, a video monitor and a VCR available for trials.  However, we share those resources with other courtrooms, so please let us know before a trial or hearing starts which of these, if any, you will need.  We do not have overhead projectors or screens available, so if you need to use those, you will need to provide them.

If equipment needs to be brought in, please talk to my clerk or bailiff ahead of the trial or hearing regarding where and when to bring or place it.  Do not try to figure that out while a jury is waiting.  Also, please figure out how to use the equipment before the trial or hearing starts. 

Pro se litigants and/or non-parties:  Please do not send me any letter containing substantive information about a case.  If there is something on which you need me to act, it must come in the form of a motion filed by a party or that party’s counsel; with it there must be the appropriate certification filed showing that the opposing side has been provided the same information.  See Utah R. Civ. P. 7/ Utah R. Crim. P. 12.

Please be aware that neither my clerks nor I can give legal advice, so please don’t ask.  I expect pro se litigants to familiarize themselves with the applicable substantive law as well as the rules of procedure and evidence.  While there is room for some liberality in dealing with pro se parties, the Code of Judicial Conduct requires all judges to avoid even the appearance of partiality to one side or the other.  Consequently, while choosing to represent oneself is certainly a person’s constitutional right, it does carry a risk that the individual’s best arguments may not be properly presented or preserved for appeal.

OSC calendars for dismissals:  My clerks regularly run reports to monitor the status of cases on my caseload.  If a case has been inactive for a substantial period of time, it will be set for an OSC hearing to dismiss for failure to prosecute.  Notice of the hearing will be given to Plaintiff (if pro se) or Plaintiff’s counsel.  Failure to appear at the OSC hearing will result in immediate dismissal of the case.  You will be given up to 90 days from the hearing date to settle the case or file a certificate of readiness for trial.  It is Plaintiff’s responsibility to notify the opposing side of that information.  

Making a record:  As noted earlier, whenever possible I prefer that counsel present their argument or conduct their questioning of witnesses from the podium in order to ensure that the best audio and video record can be made of the proceeding.  For the same reason, if you need to have a witness step out of the witness box to reference a large exhibit, please have the witness return to his/her seat as soon as possible thereafter.  In jury trials in particular, do not approach the jury box, although you may turn the podium to face the jury. 

My courtroom has just been set up for digital video recording, so I understand we now have the capability of recording bench conferences for purposes of the record.  Whether or not that is the case, at every break during a jury trial (once the jury has left the courtroom), I give counsel ample opportunity to make a record of any issue.

Small claims appeals:  Before scheduling a pre-trial or trial date for a small claims appeal the parties will be required to attend mediation with Utah Dispute Resolution.  Those mediation sessions are at no cost to the parties, but I expect the parties to participate in good faith.  It is not acceptable for one or both parties to fail to show for a mediation session; if the parties have a conflict with the scheduled time, it is their responsibility to notify the mediation coordinator in advance so it can be rescheduled.  Failure to appear at a mediation (or appearing late) will not only result in having the matter reset for another mediation before I schedule a hearing, it may also result in a Court-imposed sanction.
  
12.       Court Clerks:

Contacting my clerks:  My lead clerk is Michelle Baney; her direct line is 238-7019.  My “front office” clerk is Michele Chapman, her direct line is 238-7016.  Both are very good about returning messages as soon as possible, but please be understanding if it takes a while.  It’s not at all unusual for them to have 25 messages (or more) to return in-between court sessions.

Working with court clerks and/or other court personnel:  Counsel generally understand that it is always in their best interest to be courteous in dealing with court clerks and other court officers.  Nevertheless, once in a while somebody forgets this basic principle and is rude to, or yells at my clerks.  If you’re ever tempted to do so, remember that nothing helpful to your cause is accomplished by taking out your frustrations on them.  My clerks and other court personnel do their best to be helpful and deserve to be treated properly.

Other things my clerks want you to know—Proposed Orders and Notices to Submit (“NTS”): A Notice to Submit must be filed with the Court before any orders or motions will be given to the judge.  It is our chambers’ regular practice that once a NTS has been filed, we will hold it for 10 days before giving the file to the judge.  We do this because counsel frequently send in proposed Orders without first getting the other side’s agreement on form and/or substance.  What happens is that when counsel anticipate an objection, they just mail the proposed Order and tell the other side to file any objections within 5 days (plus the 3 days for mailing).  In the meantime, however, they’ve gone ahead and filed the proposed Order (and, often, an NTS) without waiting for the time to run.  We have encountered similar problems with parties submitting motions for decision before the full time for response has run.  By waiting the10 days after the NTS to give the file to the judge, there’s sufficient time to make sure any objections or responses have made it to the file. 

 

Biographies of 3rd District Judges