Bench Book
Judge Samuel McVey
QUESTIONNAIRE FOR JUDGE’S BENCHBOOK
JUDGE: Sam McVey - Fourth 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, in person or by telephone according to counsel’s preference, unless I feel that we need an in-person conference. But that is a rare exception.
Q: What are your preferences regarding Case Management Orders/Scheduling Orders? Do you require that specific things be included in such orders?
A: Counsel should set realistic dates. Counsel should report they have discussed settlement as required by the rule. Counsel should put in a date around the time of the fact discovery cut-off date by which they will discuss the possibility of mediation between themselves and with their clients. If they don’t I will stamp the first page of the order with such a date. So long as orders comply with Rules 16 and 26, I require nothing further.
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, 2 days in advance of the hearing. Counsel need only submit their own briefs, not the other parties’ briefs.
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: These are scheduled automatically, but the clerk clears the date with counsel as a general rule. Of course, counsel can call and get a date if there is a stipulation with the other party. Civil law and motion is conducted Monday mornings. There is normally only one case calendared per time slot.
Q: Under what circumstances do you decline to grant a request for oral argument?
A: Hardly ever. If the memoranda show one party has no support for a position, I might rule without argument.
Q: What is your policy on allowing overlength memoranda?A: I allow them, but be reasonable. There should be a reason for anything over 10 pages of argument. Counsel should file a motion and ex parte order allowing an overlength memorandum.
Q: What separates a useful brief from one that is unhelpful?
A: Hard to say. I know it when I see it, but short factual introductions help, even though a statement of facts is set out later. Redundant passages do not help. Active voice and short sentences help. Section headings describing the argument or issue help. For facts on summary judgment motions, follow Rule 7. One very clear way to show disputes is to use two columns—one for the moving party’s facts and one right by it for your statement of the dispute.
Q: Do you prefer that counsel provide copies of the relevant cases prior to a hearing?
A: Only if they are out-of-state or federal cases.
Q: What makes an effective motions argument?
A: Short and to the point. If you are “winging it” or in most cases if you don’t have an outline it will often look like you are unprepared. There are exceptions to this observation, obviously, but not many. Graphs and charts help. PowerPoints do not help, usually. I will interrupt with questions, so don’t worry—I’m just trying to ensure I get your point.
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: Most requests don’t comply with the rules. Ensure that ex parte motions are supported by affidavits and the order strictly incorporates notice requirements. Also, ensure your issue actually involves irreparable harm, etc. Prove notice compliance by affidavit.
3. Final Pretrial Conference
Q: In your view, what is the purpose of a final pretrial conference?
A: Organize the trial. Counsel have plenty of incentive to settle on their own by then, so I won’t go into it much unless counsel request my help.
Q: What topics or issues should counsel come prepared to discuss?
A: Standard jury instructions, motions in limine, realistic length of trial, voir dire, jury questionnaires, daily schedules, witness problems. While exhibits should be exchanged (or at least a list) by the time of the final pretrial conference, they don’t have to be marked yet. Please mark them by the date of trial, however, so we don’t have to spend time having the clerk mark them.
Q: What steps do you take, if any, at a final pretrial conference to encourage settlement of the case?
A: Very little, other than to raise the subject. I raise the issue of settlement and pursue it more aggressively, suggest mediation, etc. long before final pretrial. As noted, there is plenty of incentive to settle by then. With today’s economic environment limiting clerk help, I am more reluctant to continue a trial after the final pretrial conference, recognizing nothing promotes settlement like a firm trial date.
Q: Do you require clients to be present at final pretrial conferences?
A: Only if the parties are going to discuss settlement. However, clients should be available by phone. I will tell counsel if clients need to attend.
On an unrelated note, when you certify a case for trial, we will usually set it to occur within 90 days.
4. Jury Trial Practice
Jury Selection:
Q: How is voir dire conducted in your courtroom?
A: Questionnaires, then I conduct general en banc voir dire, then allow counsel en banc voir dire. Follow-up individual voir dire is in chambers.
Q: Do you allow counsel to participate in voir dire? If so, to what extent?
A: Yes, as much as they want. Attorneys usually know what the limits are, so I don’t cut them off unless they are going off on tangents or, as happens frequently, start to present argument rather than ask questions.
Q: What is your due date for requested voir dire questions?
A: Final pretrial.
Q: Do you allow or encourage the use of jury questionnaires?
A: Yes. We use a standard one for criminal cases and also have a standard form for civil cases, but counsel are free to agree on other questions. Where possible, we like to limit the questionnaire to one sheet of paper with questions in boxed columns on the front and back.
Requested Instructions:
Q: When do you require requested instructions to be submitted?
A: Final pretrial. Also, counsel should make any objections to instructions then but should have tried to reach a stipulation with opposing counsel first. I realize there may be additional instructions presented after that but most instructions, especially boilerplate, should be stipulated to or objected to 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: Citations to cases or to MUJI is fine. Please carefully proofread the instructions, even stock ones. Please remove any reference to case authority, MUJI or statute in the copy we will give to the jury to take into deliberations.
Q: Do you have a set of stock jury instructions that you use?
A: For civil cases. We can email them to counsel. With most of them on line now, counsel can use the MUJI II downloads.
Q: Do you prefer to receive an electronic copy of requested instructions?
A: Yes. They can be on a CD or emailed to my law clerk.
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: It depends upon the length of trial. Normally, the schedule is 8:30 to 4:00 or so with a 45-minute lunch break, unless counsel need more time, with 15-minute breaks in the morning and afternoon. For trials lasting more than one week, the schedule is 8:30 to about 2:30, with 30 minutes for lunch.
Q: What are your preferences with respect to motions in limine and other trial related motions?
A: Present them in time for resolution at the final pretrial conference. Things that come up later can be presented during trial. But once the venire panel arrives, I do not want prospective jurors to wait while we argue motions. We normally have the jury selected by 11:00 am and start opening statements after a short break then go to lunch around 12:15 or 12:30. More complex cases can change that. You may set a time before the trial date for additional motions that arise. Motions to suppress evidence will often be deferred until during trial so I can see the context of the case before ruling on them.
Q: What are your preferences and/or procedures related to witness scheduling?
A: No need for all witnesses to be present when the trial starts, so long as they show up in time to testify. I don’t appreciate dead time, especially in jury trials, but I recognize that some witness tardiness is unforeseeable.
Q: What are your preferences with respect to trial exhibits?
A: Mark them before trial. Use looseleaf binders if possible if there are many exhibits and it helps to make a copy for the Court.
5. Bench Trial Practice
Q: What are the major differences, in your courtroom, between bench trials and jury trials?
A: Very little. I am equally aggressive in both types of trials in not allowing inadmissible evidence, leading questions on direct, requiring foundation, etc. In a bench trial, I may try to help new attorneys understand rules of evidence more than I would if a jury is present. I will make suggestions in a bench trial if counsel is floundering and there is no prejudice by my suggestions. Of course, we do side bars in a jury trial and turn on the “white noise” button.
Q: Do you appreciate or require proposed findings of fact and conclusions of law from counsel?
A: Yes. In complicated cases, I especially appreciate them. I recognize that they are expensive to produce.Q: Do you appreciate or require trial briefs from counsel?
A: For non-jury trials, or if there are complex evidentiary issues, I require them. I do not expect them to be comprehensive. They are expensive to create.
6. Thoughts on Effective Advocacy
Q: What makes an effective advocate in jury arguments?
A: Write down an outline and follow it. Use a blackboard or easel and paper to map things out.
Q: What are the most common mistakes made in argument?
A: Winging it with no outline. Going overboard and talking about inadmissible evidence. Talking too long. Acting arrogant or smug, and making personal attacks on opposing counsel. You’ve spent the whole trial trying to make the jury fall in love with you. Don’t make them think you’re a jerk with personal remarks on other attorneys.
Q: What are some techniques that do, or do not, work effectively in the examination of witnesses?
A: Asking the same question over and over is problematic. Denials do not become less or more persuasive by their frequency. No speaking objections. Get to the point. Use plain English in questioning experts so you don’t lose the jury. Plain questions help the expert answer plainly. Counsel in a recent trial had a great expert but lost because the jury didn’t understand the techno-speak of both counsel and witness. On the other hand, an expert in a recent case used common-word similes and metaphors for complex terms and the jury loved it. I have a scientific, math and engineering background so I might not notice if you and your expert start speaking in ways a lot of folks won’t quite get. So you may be on your own there.
Here, let me note a lot of attorneys, new and old, have a hard time asking questions correctly on direct examination. Direct examination is difficult if you wing it. To avoid asking leading, compound, vague or otherwise improper questions, write your questions down, or at least write down what information you are looking for. I realize many teachers and writers say not to write down questions because it stifles creativity. Two thoughts on that—first, it’s better to have your creativity stifled than to forget a question on an element of your case and lose a motion for directed verdict as a result; second, you don’t have to read your questions but if they’re written down, you can always look down at them and see how to ask the question properly when you get in a jam. Some of the best trial lawyers in the world write down their questions. If you have no trouble with direct examination, obviously ignore this advice.Learn what leading questions are and avoid them on direct. If you start a question with a form of the verb “to be” or “to do” there’s a good chance you are suggesting the answer to the witness in a leading question.
Q: Do you find the use of computer-assisted presentations (e.g., PowerPoint) effective and/or useful?
A: Not usually. Half the time there are technical problems. They can be mind-numbing due to length. Charts work better. I am trained in PowerPoint, but think it is overused. The charts are always there; PowerPoint slides disappear as soon as the next one arises.
7. Criminal Matters
Q: How do you handle requests for continuance on pretrials, arraignments or roll calls?
A: If counsel agree, I will usually grant continuances. Don’t call the Court requesting a continuance unless you have a stipulation from opposing counsel. Otherwise, there will have to be a motion and argument. Counsel usually know how to handle their case, and I will give them latitude to do so, as long as we are not way behind on scheduling trials.
Q: When may the issue of bail best be addressed in your courtroom?
A: After a motion has been served on the other party. Prosecution should let defense counsel know in advance if a change in bail status is going to be requested, and vice versa. Be prepared to show a change in circumstances. If you are asking for an exception to the right to bail, read the statute to see if you need to put on evidence.
Q: What information do you want from counsel at the time of sentencing?
A: Employment, family situation (minor children), prior convictions (unresolved arrests mean little), a recommendation on jail/prison length, fine amounts and restitution. Any special probation conditions. If defendants are involved in drug counseling, especially if voluntarily enrolled at their expense (if they can afford it), have them bring proof . I want to see if the defendant did anything well before sentencing to start to change bad habits or character. I want victims to feel welcome to address the Court.
Q: Are private pre-sentence evaluations useful or encouraged?
A: No, except for psychological evaluations or drug treatment.
Q: Do you have any standard sentences the bar should be advised about, i.e., DUI sentencings, acceptance of alcohol-related reckless?
A: On misdemeanors, I do use the Uniform Fine Schedule as a guide. I do impose mandatory DUI sentences. I will order drug assessment and treatment if the defendant isn’t already in treatment.
Q: How should counsel on busy law and motion calendar handle calling a case?
A: Approach as soon as you are ready, unless the matter will take over 20 minutes, then be courteous to other counsel. But if there is a lull, approach on longer matters as well. Please give the court the calendar matter number. Again, on sentencing arguments I see a lot of “winging it” by counsel with triple and quadruple repetition, extending a good three-minute argument into 15 minutes of ennui.
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: Pursue stipulations. For divorce cases, I will require mediation if it has not yet happened as mandated by statute. Counsel might tell their clients I am interested in seeing there is a tie in divorces rather than winners and losers. It is an equitable proceeding.
Q: What do you want to have on temporary order issues?
A: Affidavits or testimony that is focused and actually supports an order. No need to use it as a chance to vent against a spouse.
Q: Do you have a policy on child interviews with respect to custody?
A: I do them in chambers, but on the record. Counsel can be present if they don’t interrupt. Guardian ad litem can also be present. I sincerely hope these interviews can be avoided. Protecting the children is my top priority in a divorce and every effort should be made to stipulate on custody and visitation to give children a sense of stability.
9. Discovery Practices
Q: What is your approach to resolving discovery disputes?
A: Resolve them under the rules. Counsel should try to resolve them over the phone before sending letters fanning the flames. Will usually work out a resolution in court.
Q: What are your thoughts on imposing sanctions for discovery abuses?
A: I will impose attorney fees for knowing abuses. Instructing a witness not to answer in a deposition for reasons other than privilege will usually merit a sanction under Rule 37.
Q: Are you generally available to solve problems that arise during a deposition?
A: Yes, telephone calls are fine.
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: Not usually. I try to be civil and have a friendly courtroom. If there are problems, I direct counsel to cool down and they usually do it. If I need to cool down, look at me funny and I should get the hint.
Q: Do you impose any limitations on courtroom movement (approaching witnesses, podium, etc.)?
A: Just ask to approach the witness. After receiving approval the first time, there is no need to ask again. I don’t want the witness to feel assaulted, especially a child witness. You don’t have to ask to move away from the podium or to approach the jury.
11. Other Miscellaneous Issues
Q: What are your opinions regarding courtroom dress?
A: Dress professionally. Coat and tie for men, pant suit/business suit for women.
Q: Do you allow children in your courtroom?
A: Yes, but take them out if they are fussing.
Q: Do you allow cell phones in your courtroom?
A: If they don’t have cameras. Be sure to turn them off.
Q: What, if anything, do you do to enforce promptness in your courtroom?
A: Gentle persuasion. Unambiguous schedules. I have had juries complain when attorneys are late—I will try to protect you, but keep that in mind.
12. Other Suggestions, Thoughts, Concerns
Almost all Utah attorneys are professional. I know litigation is expensive and stressful. I would like to do what I can to reduce the stress and expense. I am always available to talk to counsel, but no ex parte contacts about a case please unless allowed by the rules. If you feel you weren’t treated with respect or fairly, let me know. An anonymous note is fine. I am here to serve you, not the other way around. But I do want to try to move cases efficiently to protect the taxpayers’ dollar and the jury’s time.
Also, this is old school, but please don’t call me “judge” in court. Say “the court” or “your honor.” “Judge” is too familiar a usage and sounds like we are best buds the way it is used. Even though I like attorneys, you included, I have to keep an appearance of distance to ensure no advocate has an image of being an insider with me.
If you are a pro se litigant (meaning you don’t have an attorney), be sure you are prepared. I require attorneys to be prepared and when I see you show up for trial with no questions or arguments written down, I worry you have put yourself at a big disadvantage. Better yet, try to get an attorney if you can.
13. Clerk’s Comments
Q: The name and phone number of my clerk(s) is:
A: Calli—(801) 429-1067
Q: My clerk wants you to please do these things:
A: Get filings to the court on time. Let us know as soon as a matter settles so we can call off the jury. Please speak slowly when leaving phone or case numbers.
I want you to please be courteous to our clerks. They believe like I do in public service so make it easy for them to serve you. They can’t answer every question you have and are forbidden by law from giving you legal advice, changing a hearing date without the other side agreeing, or excusing you from coming to court. They don’t have to talk to you if you are rude and unrealistic since they have plenty of other duties they have to perform.