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Bench Book

Judge Kate A. Toomey

QUESTIONNAIRE FOR JUDGE’S BENCHBOOK
JUDGE: Kate Toomey - 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. More often than not, we conduct them by telephone. Exceptions include cases in which there are so many parties that it would be confusing to handle it by telephone, and cases involving pro se litigants whose telephone numbers are unknown to the court.

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

A: I am seeing fewer of these since the rules changed. If you request a pretrial conference pursuant to Rule 16, I will set one, and anything I have determined then should be included in the order.

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. The courts are shifting to an electronic record, and next year will adopt mandatory e-filing in many kinds of cases. Some attorneys and firms are already filing their pleadings and papers electronically, but papers filed in hard copy are being scanned by court personnel at present, and many of these are discarded after scanning. This means that judges no longer have complete paper files available to them. I therefore request that courtesy copies be delivered at least three work days before any 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: The case manager or the judicial assistants assigned to my team initiate calls to set hearings.

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

A: For civil cases, I follow Rule 7(e) of the Utah Rules of Civil Procedure. Unless it is a dispositive motion, or involves an especially complex matter, I tend to decline the request when the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by a hearing. Also, I usually decline the request when a motion is unopposed.

Q: What is your policy on allowing overlength memoranda?

A: I’d prefer not to, but usually permit it. But in this forum I’d like to urge counsel to work hard to avoid filing them because generally it’s possible to set forth necessary facts and make compelling legal arguments within the page limits set by the rules.

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

A: Good writing and careful focus on the issues. Bad writing, including poor structure and errors in grammar and spelling, is distracting.

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

A: Only for cases outside this jurisdiction.

Q: What makes an effective motions argument?

A: Concise, clear presentations of the legal issues and the ability to engage in dialogue.

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 bring it to me without involving the adverse party or their counsel, or having an excellent reason why you didn’t. Although I am often requested to do so, I almost never hear such motions on an ex parte basis because it’s a rare situation that warrants proceeding that way.

3. Final Pretrial Conference

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

A: Making sure everyone is ready and that the trial proceeds smoothly.

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

A: The order in which they anticipate proceeding, and any last-minute procedural questions. Be aware that I typically schedule these for no more than half an hour, and if your case involves things like disputes over jury instructions, it would be helpful if you alerted us to this so that we can schedule a longer conference. Last-minute motions in limine, especially those that could be reasonably anticipated in advance, are difficult to address at this conference. Instead, these should be filed and fully briefed long in advance of the final pretrial conference.

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

A: None. But I ask counsel to promptly inform me if their case settles so that I don’t waste time preparing for something that isn’t going to proceed.

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

A: No. They are welcome to come to court, but I usually hold these conferences informally in chambers, with just the attorneys.

4. Jury Trial Practice

Jury Selection:

Q: How is voir dire conducted in your courtroom?

A: I ask the statutorily required questions and a make a few ice-breaker inquiries, then permit attorneys to conduct their own within the limits of the rules and the interpretive case law, and with an outer time limit.

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

A: Yes; see above.

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

A: I don’t have one.

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

A: I consider requests to use them, and on occasion have allowed it, but I don’t encourage it because of logistical considerations.

Requested Instructions:

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

A: At the final pretrial conference.

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: A MUJI citation is sufficient. Use the most recent version!

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

A: No.

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: I prefer 9 to 5, with an hour for lunch. With that said, we try to be flexible to accommodate the needs of individual cases.

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

A: I would rather have them submitted will in advance of the trial unless it’s truly unavoidable because the issue could not have been anticipated. Oftentimes, good planning helps avoid eleventh-hour scrambling.

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

A: I prefer to let the attorneys work it out, and to do so in a way that minimizes delay and accommodates the witnesses’ schedules. For example, if both parties intend to call the same witness, I expect them to consider broadening the scope of direct and cross-examination and rebuttal so as to allow the witness to make a single appearance at court.

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

A: Pre-marked, with consecutive numbers (e.g. Plaintiff’s 1, 2, 3, etc., and Defendant’s 10,11,12, etc.) and no sub-parts (such as 1-A, B, and C). I do not mind a gap in the consecutive numbers, and one easy way to mark the exhibits the way I prefer is for the Plaintiff to begin with the number 1, and the Defendant to begin with the number 100. This avoids confusion in the record because people eventually forget to identify the party whose exhibit is being discussed.

5. Bench Trial Practice

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

A: In jury trials, I tend to take more frequent recesses so that the jurors can be as comfortable and alert as possible. In bench trials, I sometimes ask questions.

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

A: I rarely require them, but if I want them, I ask for them.

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

A: Again, if I want them, I ask for them. When I ask for briefs, I set a deadline for simultaneous filing because I do not wish it to become an additional forum for responsive briefing.

6. Thoughts on Effective Advocacy

Q: What makes an effective advocate in jury arguments?

A: Keeping them interested and being courteous. No one likes to be bored, and no one likes a bully.

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

A: Reiterating a point to death and being rude or demeaning.

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

A: Keep the questions simple. Know when to stop.

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

A: If they’re good, they can be effective, but I think PowerPoint presentations in general are over-rated, especially if the attorney simply reads out loud what everyone else can read from the PowerPoint.

7. Criminal Matters

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

A: The Third District has an internal policy for preliminary hearing continuances, which I follow. I do not handle arraignments or roll call hearings.

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

A: If someone wants to address it at the time set for a preliminary hearing, counsel should file a notice indicating that the court will be asked to consider it.

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

A: N/A

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

A: Not to me, and I don’t encourage them.

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: I don’t hear law and motion calendars in criminal cases.

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’s recommendation. If an objection is filed, I want to see evidence or legal authority sufficient to warrant the objection.

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

A: I almost never interview a child. In the couple of instances in which I have agreed to meet with a child, it is because I have been persuaded by a guardian ad litem with respect to a mature child that it is in the child’s best interests to be allowed to speak to me. It is always on the record.

9. Discovery Practices

Q: Has your district adopted any local rules with respect to resolving discovery disputes?

A: Yes. See Rule 10-1-306, Expedited Procedures for Resolving Discovery Issues.

Q: What is your approach to resolving discovery disputes? How do you handle status and scheduling matters for discovery issues?

A: I try to resolve them quickly based on a Statement of Discovery Issues and any response that was filed. Oftentimes I can do this simply by reviewing the papers, but sometimes I contact counsel for a brief telephone discussion before I make a decision, and once in awhile I request additional briefing.

Q: What is your approach with granting extraordinary discovery?

A: I haven’t been asked to consider this yet, but intend to engage in a proportionality analysis along the lines laid out in Rule 26(b)(2).

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

A: The new rules have sanctions and other consequences built into them, and attorneys would do well to anticipate that the rules will be applied.

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

A: Yes. Just call my case manager or one of my judicial assistants and we will try to quickly set up a telephone conference.

Q: What insights do you have for litigants with respect to discovery matters in general, especially in light of the November 1, 2011 amendments to the Utah Rules of Civil Procedure?

A: Know the rules; embrace their purpose; make them work for you and your client.

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: It is rarely a problem, but my approach is to explain that incivility interferes with my ability to get to the merits, and ask counsel to tone it down.

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

A: I appreciate being asked the first time, but otherwise no. Counsel should remember to speak loudly enough to be heard on the recording equipment, and no one should hover over the jurors.

11. Other Miscellaneous Issues

Q: What are your opinions regarding courtroom dress?

A: In my opinion, attorneys should dress professionally, but I understand that coming to court isn’t always foreseen. In my opinion, everyone else should dress in a manner that is respectful to the court, but I understand that not everyone has access to professional attire.

Q: Do you allow children in your courtroom?

A: It depends on the nature of the case and the age and demeanor of the child. In general, unless it’s an adoption proceeding, I don’t think it’s appropriate to bring children to court except for educational purposes, and even then, some consideration should be given to what they may see or hear in a courtroom.

Q: Do you allow cell phones in your courtroom?

A: They are allowed in the courtroom, but they should be turned off.

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

A: By being prompt myself.

12. Other Suggestions, Thoughts, Concerns

13. Case Manager’s and Judicial Assistants’ Comments

Q: The name and phone number of my case manager is:

A: Kathy Westwood; 801-238-7516

Q: My case manager and judicial assistants want you to please do these things:

A: Call as soon as you know a case is resolved, especially if it is set for trial or a hearing. Do not call to ask when the judge will make a decision or sign documents you have submitted. Make sure the correct case number is on any document you file. Do not ask the clerk how to prepare pleadings or other papers. Make sure you return client calls and keep them informed of the status of their cases. If you don’t, they call us.

Biographies of 3rd District Judges