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Bench Book

Judge Bruce Lubeck

Third District Court

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, both by phone and 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: I prefer that they be stipulated, and I have a requirement that the parties try to mediate the case 30-60 days after fact discovery is closed.

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 would like them one week before the hearing.

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 review the motion and set a hearing if needed.

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

A: I decline to grant requests for oral argument in most discovery disputes and in cases where the law is clear and the issue is not dispositive. 

Q: What is your policy on allowing overlength memoranda?

A: I require an ex parte motion and order, but I always allow them.

Q: What separates a useful brief from one that is unhelpful?

A: A useful brief is full of facts and low on case cites.  Pick your best cases, and don’t cite to every single case.

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

A: If the cases are dispositive, yes.

Q: What makes an effective motions argument?

A: One that is to the point and explains what is wanted and why.

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: Don’t wait for it.  Leave it and I will examine it when I can and set a prompt hearing. 

Q: How do you handle Daubert/Rimmasch gatekeeper-type issues?  Do you typically schedule an evidentiary hearing, or do you handle the issues in another way?  Is there anything about the way in which you handle these issues that you would like counsel to be aware of? 

A: No.  Depends on need.

3.       Final Pretrial Conference

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

A: Not much.  Review trial procedures. 

Q: What topics or issues should counsel come prepared to discuss?

A: All topics.

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

A: None.

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

A: No.

4.       Jury Trial Practice

Jury selection

Q: How is voir dire conducted in your courtroom? 

A: By me.

Q: Do you allow counsel to participate in voir dire?  If so, to what extent?

A: Very, very limited.

Q: What is your due date for requested voir dire questions? 

A: Usually about 5 days before trial.

Q: Do you allow or encourage the use of jury questionnaires?

A: On rare occasions, and in criminal cases.

Requested instructions

Q: When do you require requested instructions to be submitted? 

A: Usually 5 days before trial.

Q: What form do you prefer requested instructions to take (e.g., do you prefer instructions accompanied by supporting cases, etc.)?  Is a citation to MUJI sufficient legal authority? 

A: One with whatever cites needed to convince me if challenged, and a clean copy.

Q: Do you have a set of stock jury instructions that you use? 

A: Yes.

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

A: No.

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: 9-5, with a 1 hour lunch, except if the trial is longer than 2 weeks, then 8:30 - 1:30 and no lunch.

Q: What are your preferences with respect to motions in limine and other trial related motions?

A: File them in time so that all parties know before trial what will be permitted.

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

A: Pre-marked.  Plaintiff begins with 1, defendants with the next hundred, etc.  Plaintiff will have 1-99, Defendant #1 will have 101-199, Defendant #2 will have 201-299, etc.

5.       Bench Trial Practice

Q: What are the major differences, in your courtroom, between bench trials and jury trials?

A: In a bench trial, the evidentiary rules are relaxed.

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

A: I require them in all trials that last a day or longer.

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

A: Counsel may file trial briefs if they so desire, and they should if there are unique issues.

6.       Thoughts on Effective Advocacy

Q: What makes an effective advocate in jury arguments?

A: One that gives a presentation that is shorter than almost all lawyers believe.

Q: What are the most common mistakes made in argument?

A: To court, endless repetition.  To jury, talking down.

Q: What are some techniques that do, or do not, work effectively in the examination of witnesses?

A: It always works to give a presentation that is short and to the point.

Q: Do you find the use of computer-assisted presentations (e.g., PowerPoint) effective and/or useful?

A: I generally find them to be not all that effective.

7.       Criminal Matters

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

A: In court or in writing.

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

A: Initial, roll call, anytime really.

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

A: Criminal history, work, family.

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

A: On and off usefulness.

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: Jump in if needed.

8.       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 do you want to have on temporary order issues?

A: A commissioner!

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

A: I hardly ever do that, but no fixed policy.

9.       Discovery Practices

Q: What is your approach to resolving discovery disputes?

A: I generally decide these issues on the pleadings.

Q: What are your thoughts on imposing sanctions for discovery abuses?

A: I find that sanctions are hardly ever warranted, because most lawyers have a basis for what they do.

Q: Are you generally available to solve problems that arise during a deposition?

A: Hit and miss.

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: Almost never been a problem.

Q: Do you impose any limitations on courtroom movement (approaching witnesses, podium, etc.)?

A: I do not let parties approach the bench, but lawyers are free to move wherever.

11.       Other Miscellaneous Issues

Q: Do you allow children in your courtroom?

A: Yes.

Q: Do you allow cell phones in your courtroom?

A: Yes, if they are not turned on.

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

A: I start on time and express annoyance when others are late.  I moan a lot.

12.       Clerk’s Comments

The name and phone number of my clerk(s) is:

Debbie Foust (435) 615-4300

Judicial Profile (pdf)


Biographies of 3rd District Judges