Bench Book
Judge Sandra N. Peuler
May 12, 2009Scheduling Conferences
Q: Are scheduling conferences needed or used in your court? If so, are they conducted in person or by telephone?
A: We do not automatically set scheduling conferences. If counsel request one, we generally conduct it by phone.
Q: What are your preferences regarding Case Management Orders/Scheduling Orders? Do you require that specific things be included in such orders?
A: Only those things required by Rule 26. I generally will not set a pretrial or trial until discovery has been completed.
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: At the time my clerk schedules the hearing date, the moving party will be asked to supply a complete set of courtesy copies. It should be delivered one week prior to the hearing, with the date stamped on the front. Please do not send courtesy copies of everything you file, as I request copies only for oral arguments.
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: My clerk will contact counsel to schedule a hearing.
Q: Under what circumstances do you decline to grant a request for oral argument?
A: I generally do not schedule non-dispositive motions for oral argument. However, if you believe it is important, make the request, and I will consider it.
Q: What is your policy on allowing overlength memoranda?
A: I allow them on occasion, but not as a routine matter.
Q: What separates a useful brief from one that is unhelpful?
A: A useful brief is one that is concise, organized by topic, and addresses all the issues in dispute. A brief that rambles, or one that uses hostile or demeaning language is distracting, and thus unhelpful.
Q: Do you prefer that counsel provide copies of the relevant cases prior to a hearing?
A: Yes, delivered with the courtesy copies, or about the same time. Since I try to rule from the bench, providing a case at the hearing is not helpful.
Q: What makes an effective motions argument?
A: One that takes the facts of the instant case and explains how the relevant law applies to those facts. You should not just repeat your brief, because I will have read that. I like to have a dialogue with counsel, so be flexible in your presentation, based on my questions.
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: I am very reluctant to grant an ex parte TRO. Counsel should review Rule 65A, as strict compliance is required. Counsel are invited to contact my clerk to determine the best time to present a TRO. She will give you suggested times that will help you avoid waiting if I’m conducting other hearings.
Miscellaneous thoughts about motion practice:
1. Please follow the requirements of Rule 7 for all motions. Strict compliance is particularly important in motions for summary judgment.
2. Please do not send me a letter containing substantive information about a case and expect me to do something as a result. All such matters should be in the form of a motion.
3. Said once before, but it bears repeating, so as not to waste paper. Please don’t deliver courtesy copies of every document you file. My clerk willadvise you when copies are needed, at such time as she schedules argument.
Final Pretrial Conference
Q: In your view, what is the purpose of a final pretrial conference?
A: To identify and discuss trial issues; to identify potential evidentiary or witness problems; to discuss settlement.
Q: What topics or issues should counsel come prepared to discuss?
A: Deadlines for requested voir dire; jury instructions; scheduling issues; settlement; evidentiary issues.
Q: What steps do you take, if any, at a final pretrial conference to encourage settlement of the case?
A: I discuss the potential for settlement with counsel and make suggestions. I also encourage mediation in all cases. I require mediation in all cases in which the trial will exceed one day.
Q: Do you require clients to be present at final pretrial conferences?
A: Yes, unless the client resides out of state and is available by phone.
Jury Trial Practice
Jury Selection:
Q: How is voir dire conducted in your courtroom?
A: By me, with written questions submitted by counsel.
Q: Do you allow counsel to participate in voir dire? If so, to what extent?
A: I invite counsel to provide requested voir dire prior to the trial. I also invite counsel to ask questions during individual voir dire.
Q: What is your due date for requested voir dire questions?
A: We generally set a date at the final pretrial. Usually it is just a few days prior to trial.
Q: Do you allow or encourage the use of jury questionnaires?
A: I encourage them, provided that the questionnaires are not lengthy, and are agreed upon by all counsel.
Requested Instructions:
Q: When do you require requested instructions to be submitted?
A: We will set a specific date at the final pretrial. Usually I request them on the first morning of 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: In addition to the original set which is filed, I request two copies: one with MUJI or other cite, and one clean set without cites. MUJI cite is sufficient.
Q: Do you have a set of stock jury instructions that you use?
A: No, but I use MUJI 2d, to the extent the applicable section has been approved.
Q: Do you prefer to receive an electronic copy of requested instructions?
A: Yes, in addition to print.
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: Trials are from 10 a.m. until noon, and 1:30 until 5 p.m.
Q: What are your preferences with respect to motions in limine and other trial related motions?
A: All anticipated motions should be resolved before trial. In most cases, we can schedule a time for argument while we are at the final pretrial. However, since the pretrial is generally held about 2 weeks before the trial, complex cases or lengthy argument will require advance planning and request for argument by counsel.
A: I prefer to let counsel work out those issues, and I expect counsel to accommodate each other, when at all possible. Witnesses should be scheduled to minimize juror delay.
Q: What are your preferences with respect to trial exhibits?
A: All exhibits should be marked prior to trial. I appreciate receiving a binder of each side’s exhibits. Counsel should work with each other to avoid duplication of exhibits. A proposed trial exhibit should never be used in opening statement, without stipulation from opposing counsel or ruling from me.
Bench Trial Practice
Q: What are the major differences, in your courtroom, between bench trials and jury trials?
A: None.
Q: Do you appreciate or require proposed findings of fact and conclusions of law from counsel?
A: No, unless we discuss the issue at the final pretrial conference.
Q: Do you appreciate or require trial briefs from counsel?
A: They are not required, but certainly appreciated.
Thoughts on Effective Advocacy
Q: What makes an effective advocate in jury arguments?
A: Someone who makes an organized and to-the-point presentation. Jurors sometimes lose interest during overly-lengthy arguments.
Q: What are the most common mistakes made in argument?
A: Repeating things. Jurors often complain about counsel doing that.
Q: Do you find the use of computer-assisted presentations (e.g., PowerPoint) effective and/or useful?
A: Yes, if someone knows how to operate the equipment. The worst thing is for counsel to fumble with the equipment. Jurors get restless and bored. Many times, an appropriately-planned visual presentation provides a break for jurors, who are tired of just listening to question and answer, and it renews their interest.
Special Issues for Domestic Cases
Q: Do you have a policy on child interviews with respect to custody?
A: I am reluctant to interview children, because I believe there are better methods of obtaining the information.
Discovery Practices
Q: What is your approach to resolving discovery disputes?
A: I handle those on a case-by-case basis. I expect counsel to make a good faith attempt to resolve first.
Q: What are your thoughts on imposing sanctions for discovery abuses?
A: Sanctions are imposed in appropriate cases. Counsel should refrain from seeking sanctions in cases involving good-faith disputes, and should seek them in cases involving discovery abuse or obstruction of discovery.
Q: Are you generally available to solve problems that arise during a deposition?
A: Yes.
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: It is rarely a problem. I have discussed civility and professionalism requirements with counsel when necessary.
Q: Do you impose any limitations on courtroom movement (approaching witnesses, podium, etc.)?
A: I don’t allow counsel (or expert witnesses) to stand directly in front of the jury, as it invades their space and may be intimidating to them. I appreciate having counsel ask to approach a witness or the bench the first time it occurs.Other Miscellaneous Issues
Q: What are your opinions regarding courtroom dress?
A: I expect counsel to dress professionally, and litigants, witnesses, etc, to dress appropriately as they would for an important event.
Q: Do you allow children in your courtroom?
A: Yes, unless their parents are litigating against each other.
Q: Do you allow cell phones in your courtroom?
A: Only if they are turned off.
Q: What, if anything, do you do to enforce promptness in your courtroom?
A: I try to set a good example. If counsel are unavoidably late, I appreciate a phone call.
Other Suggestions, Thoughts, Concerns
If you need to see me, please contact my court clerk, to find out my schedule. She will suggest some times to keep you from having to wait.
Clerk’s Comments
The name and phone number of my clerks are:
Kathy Grotepas, 801-238-7051
DeVonya Gallivan, 801-238-7020