Feedback  |  Contact Us

Bench Book

Judge Fred D. Howard

QUESTIONNAIRE FOR JUDGE’S BENCHBOOK
Fourth District Court

1. Discovery

Q: What is your practice with respect to setting an initial case schedule? Modifying it once set?

A: Initial case schedules are approved summarily as are stipulated, modified case schedules. Where the parties are unable to stipulate the court will conduct a hearing and hear arguments.

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

A: No.

Q: What is your practice regarding discovery disputes? How do you handle status and scheduling matters for discovery issues? 

A: Counsel for the parties’ are encouraged to attempt to set a discovery schedule. If they are unable to agree, or if discovery has been completed, either may request a scheduling conference to discuss and set discovery dates and/or set the case for trial. Where counsel is out of the district the court will accommodate scheduling by telephone conference. The court will respond expeditiously to discovery disputes submitted by motion and if available, will entertain telephone conferences for disputed deposition discovery.

Q: What is your approach to granting extraordinary discovery?

A: Such requests have been infrequent and the court will generally permit reasonable requests; but is opposed to discovery that is cumulative, strategies of duplicative experts and such that incur large, unnecessary expense.

Q: What is your practice regarding sanctions for discovery abuses?

A: It will depend upon the extent of the particular discovery abuse. Where the issue is not a minor oversight, the court practice has been to enforce the rule with the exclusion of the evidence.

Q: Are you generally available to hear disputes that arise during depositions?

A: Yes.

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: Litigants should plan to provide upfront all known fact discovery to facilitate initial disclosures and not plan to sit back and coast. Discovery is engaged quickly in the litigation.

2. Motions

Q: Do you prefer that counsel provide copies of the cited authorities prior to a hearing? What about unpublished cases?

A: Yes.

Q: Do you appreciate courtesy copies of briefs being delivered to your chambers prior to a motion hearing? If so, how far in advance do you want them?

A: Please provide courtesy copies with the request to submit. Copies delivered just prior to the hearing are of little help. 

Q: What is your policy on allowing overlength memoranda? Extensions of the briefing schedule?

A: An overlength memorandum is rarely disallowed. Extensions of briefing schedules are allowed provided they do not unduly crimp the court’s time to be prepared for oral argument.

Q: Do you schedule motion hearings automatically upon receipt of notices to submit, or do you prefer or require that counsel call to schedule hearings?

A: Attorneys often request oral argument with the filing of their initial motion and seek an immediate setting of the hearing for oral argument. However, they will sometimes then delay by stipulation the filing of the Opposing Memorandum and final Reply, leaving the court without adequate time for a considered review of the motion before argument. Consequently, the clerks of the court are directed to submit the file to the court with all motion pleadings upon the filing of the “Notice to Submit” following the filing of the final Reply. Within a week’s time I will then read and outline the submitted points and authorities and affidavits, and based on such submissions, formulate a decision, and in some cases, prepare a proposed ruling. The clerk is then directed to set the case for the earliest court date for argument where the decision will be tested and weighed in light of counsel’s argument.

With this procedure in mind, arguments should not recite entire submissions. Since defining discussion will be held on pivotal points in argument, it is helpful if counsel is prepared with a brief, to-the-point argument, concedes obvious weaknesses, and answers questions forthrightly and directly.

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

A: Motions to amend. Motions which essentially revisit the same discussion involving a prior motion.

Q: Do you have any recommendations or preferences regarding written advocacy that you would like counsel to be aware of?

A: Lawyers should communicate with the court by motion and not by personal correspondence. In the event of an emergency, telephone calls to the court should include opposing counsel to avoid ex parte contact with the court. Ex parte communications with the court are inappropriate. When attempted, the court will inquire as to the lawyer’s efforts to include opposing counsel, will attempt to include opposing counsel, will make a record, and unless allowed by the rules, will refuse the ex parte communication. When briefing motions, be thorough. Submitting new case authority to the court during argument may not be accepted since it frustrates the briefing process. It is often helpful to identify the distinguishing issue that the motion turns on and why your position is right and the opposing position fails.

Q: Do you have any particular guidelines or preferences that you expect counsel to follow at oral argument?

A: Persuasive, productive lawyering requires that lawyers appear on time and are prepared. One should never be late, and the best way to avoid being late is to arrive ten minutes early. Be punctual and prepared. Be candid and direct about your position. Lawyers are often late or fail to appear because they fail to provide adequate time for travel or neglect to schedule hearings. The result is frustration to the parties and the court. When briefing motions, be thorough. Submitting new case authority to the court during argument may not be accepted since it frustrates the briefing process.

I recognize that very often much time and effort is invested in a motion. As such, I will read and outline the submitted motion memoranda and affidavits in their entirety and will check for disputed facts. I will then discuss the case with my law clerk and sometimes direct that he or she prepare a draft ruling. Consequently, argument of the motion requires only a brief reference to the underlying facts. A persuasive argument generally need only include a succinct, brief reference to the facts, with a logical, clear statement of what legal authority governs the case. The moving party should be able to state in simple terms that the relief sought should be granted “because” of the supporting legal authority given such facts. Likewise, the opposing party may argue the relief should be denied “because” of a specific factual dispute, or by reason of the absence of a supporting fact or legal basis.

Effective advocates include those who stick to the legal arguments without denigrating their opponent. Further, direct or veiled arguments such as, “This court should stand by the rules,” “what kind of message does the court send,” “if this court does not do such and so,” attempting to intimidate the court are rarely effective.

It is an honor for all of us to be part of a judicial system in which, by the Rule of Law, disputes are resolved in a civil fashion. As such, we should all be students of the law and maintain a mutual respect between the Bench and the Bar. The moving party need not genuflect with flattery for his cause but simply speak to the relief sought with dignity and respect to the court and counsel.
Very often, even the most complicated case will turn on a specific fact or law. Effective advocates will concede the weaknesses of their case and will argue the persuasive strengths of the case. If asked a specific question in argument, I appreciate the lawyer who will answer my question directly. I hate to embarrass a lawyer by stating, “I don’t think that answers my question,” and then have to restate the question.

Effective advocates include those who can accept decisions and the outcome of the motion without displays of anger or disgust. While losing is not a happy event, the experienced lawyer knows that “this is not about you or me,” this is simply how the court sees the matter.

Q: Do you have any guidelines or preferences that you expect counsel to follow regarding temporary restraining orders or preliminary injunctions?

A: Only that they identify strict compliance to each requirement of the rule.

3. Final Pretrial Conference

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

A: Trial setting is generally determined at the final Pre-Trial Conference after closing of the discovery and ruling on summary motions. I do not conduct Pre-Trial Conferences as a form of mediation but will review technical concerns for the upcoming trial.

Q: What topics or issues should counsel come prepared to discuss at the final pretrial conference?

A: The factual issues should be identified. If the trial issues are complex a short trial brief submitted prior to the hearing is helpful. Motions in limine should be heard. Voir dire questionnaires should be approved and the voir dire process will be discussed. Unusual exhibit concerns should be discussed. Counsel should alert the court of electronic equipment they will use in trial. The court is interested in being of assistance to counsel and the litigants. 

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

A: The court will entertain open discussion if the parties are willing to help bring the case to settlement if possible and will often order mediation.

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

A: No.

Q: Do you typically hear motions in limine and other trial-related motions at the final pretrial conference, or at another time?

A: Motions in limine should be presented and ruled upon on or before the final Pre-Trial Conference. Separate hearings are sometimes scheduled where there are many such motions.

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

A: Where possible, please file early proposed voir dire, jury instructions, special verdict and trial briefs with the court. They are reviewed by the court and copied for jury notebook binders in preparation of the scheduled jury trial.

4. Jury Trials 

I have made some observations of jury trial practice which might be considered in an article entitled “Ten Commandments of Trial Advocacy,” Utah Trial Journal, Utah Trial Lawyers Association, Vol 25, No. 1 (Spring, 2002).

During examination of witnesses, when making an objection, lawyers should refrain from making “speaking objections,” and simply state the name or rule characterizing the type of objection. If I do not understand the nature of the objection, I will then ask for a clarification. If the court has erred, lawyers should request a bench or chambers conference.

Be sure you are familiar with the rules for use of depositions in trial including the necessity of posing proper questions to the witness preliminary to the use of the deposition.

Lawyers of long experience know that we are all more transparent to jurors than perhaps we might think. Lawyers should maintain the highest level of professionalism during the trial proceeding. The practice of law is a long-term venture in which lawyers should protect their reputation both before their client, opposing counsel, and the court. Dirtytricks, unfair play, deceit, and the like will make the lawyer’s opposing counsel a perpetual enemy, enlist distrust from all of his colleagues, and more often than not, be noticed by the verdict-finding jurors observing such displays. Further, unprofessional conduct is not protected by the Rules of Professional Conduct.

Currently it is the court’s practice to encourage jury involvement. The court will provide the jury with a courtesy loose-leaf binder that includes a copy of the jury instructions and materials for note taking. Stock jury instructions include those of the simplified language form. Also, jurors are allowed to ask questions of witnesses at the close of examination by submitting a written question that is reviewed and approved by the court and counsel.

Jury Selection:

Q: How is voir dire conducted in your courtroom? Do you allow counsel to participate in voir dire? If so, to what extent?

A: Lawyers are encouraged to utilize questionnaires and participate in the voir dire process. Generally, questionnaires are approved at the final Pre-Trial Conference and submitted to prospective jurors on the morning of the first day of trial. The court will conduct general voir dire in the courtroom with in camera follow-up questions to individual jurors regarding their answers. The court encourages counsel’s participation.

Q: When do you require requested voir dire questions to be submitted? 

A: Where possible, please file early proposed, voir dire, jury instructions, special verdict and trial briefs with the court, preferably by the final pretrial conference.

Q: Do you allow or encourage the use of jury questionnaires? If so, by when must jury questionnaires be filed?

A: Yes. Please file proposed questionnaires by the final pretrial conference.

Jury Instructions:

Q: When do you require instructions to be submitted? 

A: Where possible, please file early proposed, voir dire, jury instructions, special verdict and trial briefs with the court. They are reviewed by the court and copied for jury notebook binders in preparation of the scheduled jury trial.

Q: Do you have a set of standard jury instructions that you use? If so, how can counsel obtain a copy?

A: No standard instructions are used other than MUJI.

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 1st or 2nd sufficient legal authority? 

A: Instructions without citation are preferred. Unusual and contested instructions should include all authorities.

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

A: Yes through the assigned court clerk.

Q: When do you prefer to hear disputes over jury instructions?

A: At a time convenient to counsel.

Trial Procedure:

Q: What is your preferred trial schedule (e.g., 9 to 5 with an hour for lunch, 8 to 2 with no lunch, etc.)? Are there any set days/times when you schedule other matters and not trial?

A: For 1 to 7 days trials are scheduled from 9 to 5 with 1 hour for lunch; for extended trials, from 8:30 to 2:30 with no lunch.

Q: Do you prefer to hear disputes over trial exhibits before trial or during?

A: It is preferred to be heard at the final pretrial conference.

Q: What is your practice regarding the use of trial exhibits or demonstratives during opening statements?

A: They may be used with prior approval and notice to opposing counsel and the court.

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

A: Lawyers should pre-mark and exchange all exhibits. Remember that litigants “move” for relief, but exhibits are “offered” after laying proper foundation.

Q: Do you have any guidelines or preferences regarding the use of technology at trial?

A: Technology is encouraged but counsel should become familiar with the courtroom limitations and safety concerns.

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

A: The court will accommodate witnesses and scheduling as much as possible including taking witnesses our of order and adjourning early.

Q: Do you allow counsel to move freely around the courtroom during trial?

A: Though the courtroom is a dignified setting, lawyers should be permitted some flexibility and latitude in presenting their case. They should generally use the lectern, but may move about the courtroom and approach witnesses and the court without need to ask for permission as long as they are respectful of the parties, the court and witnesses. The lectern may be faced towards the jury during opening statement and closing summation, or dispensed with so long as the lawyer does not crowd the jury box.

5. Bench Trials

Q: Do you have any particular guidelines or preferences that counsel should be aware of regarding bench trials as opposed to jury trials?

A: The same level of professionalism of a jury trial should be presented in a bench trial. The rules are not relaxed with respect to the rules of evidence and procedure and lawyers should be prepared to present the case in an organized, coherent form consistent with a clearly stated legal theory. When lawyers fail to do this and the case is factually or legally complex, then the court is simply obliged to require that counsel prepare Proposed Findings of Fact and Conclusions of Law to organize the trial evidence and applicable law. Opening statements and closing summation should not be waived since they are helpful to the court to confirm, clarify and persuade the court regarding the evidence. As stated, courtesy copy exhibits are a must, particularly when they involve financial data and summaries. Charts, summaries, and prepared documentation also help to keep the evidence organized.

When requesting attorney fees, do not neglect the basis for such fees, which requires that they include description of work performed, time incurred, hourly rate, and necessity of the fees. The court costs should likewise include description of the costs and their necessity. Lawyers can streamline bench trials by focusing on the real issues and making stipulations over minor matters. They should confer with each other to resolve minor conflicts, motions in limine and foundational issues prior to trial.

6. Post-trial Issues

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

A: Yes for some cases.

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

A: Yes for some cases.

7. Technology in the Courtroom 

Q: To what extent do you allow the use of technology in your courtroom?

A: It is rarely limited.

Q: Do you find the use of any particular type of computer-assisted presentations effective and/or useful?

A: Yes.

Q: Do you find the use of any particular type of computer-assisted presentations unhelpful?

A: No.

8. Criminal Matters

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

A: They are handled on the weekly criminal law and motion calendar.

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

A: They are handled at the felony first appearance or weekly criminal law and motion calendar.

Q: What is your policy, if any, on pleas in abeyance?

A: They are to be in writing to be approved with the court’s signature.

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

A: A brief recital of the sentence points and explanation of why it is the appropriate order. The points should include if the order is for supervised probation, time of probation, length of confinement, fine, evaluations, restitution amount and name and address of the victim, etc.

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

A: They are very helpful.

Q: Do you have any standard sentences the bar should be advised about, i.e., DUI sentencings, acceptance of alcohol-related recklessness?

A: None.

Q: How should counsel on busy law and motion calendar handle calling a case?

A: Cases are called on a first come first served basis. 

Q: What advice do you have for prosecutors to be most effective in your courtroom?

A: None at present.

Q: What advice do you have for defense counsel to be most effective in your courtroom? 

A: None at present.

9. 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: None.

Q: What documents do you want filed before appearing on a motion for temporary orders?

A: Supporting affidavits and financial declarations.

Q: What documents do you want filed before appearing on a motion for a custody evaluator?

A: No specific requirement.

Q: What are the special procedures for filing a Motion for an Order to Show Cause?

A: None.

Q: Do you have any preferences for compelling and filing financial declarations? Any practice pointers for counsel as to how you would like these completed or filed?

A: None.

Q: Do you want any type of motion binder delivered? Is this helpful, or does e-filing render these obsolete?

A: No motion binder is necessary with e-filing.

Q: Do you appreciate courtesy copies of briefs being delivered to your chambers prior to a motion hearing? If so, how far in advance do you want them, and how do you want them assembled (folder, binders, with or without exhibit tabs, etc.)

A: Please provide courtesy copies as referred to above concerning civil litigation.

Q: Is there a special way that you would like proposed orders to be filed?

A: None.

Q: How should discovery deadlines be handled on petitions to modify, where a schedule is not automatically issued by the court?

A: See answers to civil litigation above.

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

A: Please note the statute. Interviews rarely occur and only at the end of trial.

10. Courtroom Protocol

Q: Is lack of civility ever a problem in your courtroom? If so, what steps do you take to address it? 

A: There is an etiquette for the courtroom. Lawyers are professionals who work in a formal setting where their every word and act is recorded and where they present themselves as a voice for others; as such their conduct should be courteous and dignified. It is unhelpful and unprofessional when lawyers lose their civility and engage in personal, acrimonious attacks. This diverts the proceeding from the legal issues before the court. Other unprofessional approaches include lawyer remarks or gestures and displays of shock, surprise, or dismay presumably for the client’s benefit. Such displays gain, if anything, only momentary benefit from the client at the expense of diminished respect from the court. Also, when lawyers misrepresent their adversary’s actions and engage in unprofessional conduct, they lose their credibility with the court, often never to be recovered. The court will take measures against incivility including contempt sanctions.

Q: What are your opinions regarding courtroom dress?

A: Courtroom dress for lawyers is “Sunday best,” meaning coats and ties for men and comparable professional attire for women. The parties and witnesses should also be encouraged to wear their best at court to match the dignified atmosphere and support issues of credibility for their cause. As for such dress, loud colors, unusual ties, and untrimmed hair, while they may make a statement about you, are generally disfavored.

Q: Do you allow children in your courtroom?

A: Yes unless they are children of a divorce proceeding.

Q: What is your courtroom practice with respect to attorney cell phones? Clients? Those in the gallery?

A: They are not to be used during court proceedings by anyone which might interfere with the audio recording. They are not to be used by anyone to record the proceeding.

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

A: Court will proceed without you. 

11. Comments from Case Managers and Judicial Assistants

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

A: Teri Kuchar 801-429-1061

Q: My case manager wants you to please do these things:

A: None.

Q: The name and phone number of my judicial assistant(s) is:

A: Michael Tronier 801-429-1014

Q: My judicial assistant wants you to please do these things:

A: Please deliver trial exhibits early so that the clerk will have them marked for you.

For jury trials, the court law clerk will provide you with a jury list and seating chart.

Where reasonable, the court will attempt to accommodate equipment and display needs of counsel. Please advise the clerk of your particular needs.

 

Biographies of 4th District Judges