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Bench Book

Judge Samuel McVey

QUESTIONNAIRE FOR JUDGE’S BENCHBOOK
JUDGE: Sam McVey - Fourth District Court

Discovery

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

A: This is all done by rule now. I am reluctant to modify the rule unless there is a compelling reason. Saying “we have been working on settling” is not such a reason, unfortunately.

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

A: Our local rule is now the state-wide rule.

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

A: Follow the rule on expedited resolution.

Q: What is your approach to granting extraordinary discovery?

Will grant it upon a timely request that complies with the rules. If the deadlines have run, not likely.

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

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. I will also exclude witnesses and evidence if not produced.

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

A: Yes, telephone calls are fine.

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?

Read the rule and follow it. Don’t file motions to compel until following the rule to the letter and having a live conversation with opposing counsel.

Motions

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 What about unpublished cases?

A: Only if they are out-of-state or federal cases.

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: Yes, 5 days in advance of the hearing.

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

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. Note most briefs are overlength because they contain redundant materials and too many unnecessary adverbs and adjectives.

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

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. If you file a notice to submit and don’t hear anything in a week or two, it means I didn’t see it for whatever reason. Please call the clerk and let her know it’s filed so she can find it.

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

Hardly ever. If the memoranda show one party has no support for a position, I might rule without argument.

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

Hard to say. I know it when I see it, but short statements of what issues are still to be argued help. 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.

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

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. Write down an outline and follow it. Use a blackboard or easel and paper to map things out. Most common mistake is 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.
For trials, 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. 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.

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

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. For TROs, you should come see me or at least telephone. Be sure to notify the other party. Don’t ask for a waiver of security--you normally have to provide it and you might want to propose an amount rather than have me come up with it on my own.

3. Final Pretrial Conference

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

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.

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

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 pre-mark them by the date of trial, however, so we don’t have to spend time having the clerk mark them. Exchange witness lists of witnesses you actually are going to use.

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

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?

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.

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

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

Proposed findings of fact and conclusions of law are much more helpful than trial briefs. You can send my clerk an electronic copy.

4. Jury Trials

Jury Selection:

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

I use a chart with questions and also ask the statutory and rule-required questions en banc, then allow counsel en banc voir dire. Follow-up individual voir dire is in chambers. I don’t use questionnaires for a good reason. I don’t require attorney voir dire questions to be submitted in advance. Attorneys usually know what the limits are.

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

A: I don’t.

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

A: No.

Jury Instructions:

Q: When do you require instructions to be submitted?

Final pretrial. Use MUJI 2 to the extent you can. 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.

Do you have a set of standard jury instructions that you use? If so, how can counsel obtain a copy?
A: With most of them on line now, counsel can use the MUJI II downloads.

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?

Citations to cases or to MUJI is fine. Please carefully proofread the instructions, even “boiler plate” 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 prefer to receive an electronic copy of requested instructions?

A: Yes, emailed to my law clerk.

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

A: At final pretrial.

Trial Procedure:

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?

We don’t use Monday--it’s law and motion day. Schedule 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: Do you prefer to hear disputes over trial exhibits before trial or during?

A: During.

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

You can use demonstratives. You can describe exhibits orally. If exhibits were pre-admitted by stipulation, you can use them.

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

Mark them before trial. Use looseleaf binders if possible if there are many exhibits and it helps to make a copy for the Court.

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

It seems like there are often there are technical problems. 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.

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

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

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.

5. Bench Trials

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

I am equally aggressive in both types of trials in not allowing inadmissible evidence or 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.

6. Post-trial Issues

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

Yes, in bench trials or evidentiary hearings, I especially appreciate them. I recognize that they are expensive to produce.

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

A: Not unless I request them.

7. Technology in the Courtroom

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

You can use it, but all we have is a TV and DVD player, So bring your own and make sure it works. Don’t start booting up your computer only when you are ready to play your video or audio recording, etc.

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

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.

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

None more than others. Animation often does not reflect the facts, but embellishes them.

8. Criminal Matters

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

If counsel agree, I will usually grant continuances unless it is a case over two years old. 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.

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

After a motion has been served on the other party. Defense must let the State 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 is your policy, if any, on pleas in abeyance?

A: I will accept them if there is a stipulation.

Q: What information do you want from counsel at the time of sentencing?
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. If a defendant with drug posession charges is in active treatment and has an assessment, it is possible there will be no jail time imposed as a probation condition.

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

No, except for psychological evaluations or drug treatment. 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.

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

A: No. The sentence should fit the circumstances.

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

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. If you are ready at the beginning of the criminal calendar (something I have yet to see) I will come out and take your case and you can be finished without waiting for everyone else.

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

A: Be prepared.

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

A: Be prepared. Talk to clients outside of court.

9. Special Issues for Domestic Cases

Are there any special issues that arise in your courtroom in domestic cases of which you would like the bar to be aware?

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. For disputes over household items, I will have one side prepare two lists of the items and the other side can chose which list he or she wants.

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

Affidavits or testimony that is focused and actually supports an order. No need to use it as a chance to vent against a spouse.

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

A: A motion complying with Rule 7, URCP.

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

Must be based on an affidavit or sworn testimony. The clerk will then follow the rules.

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?

File them and keep them current. Set up a phone conference with me before filing a motion to compel.

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

Binders are useful since e-filing spreads your exhibits throughout the docket sometimes.

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: Yes, 5 days in advance of the hearing.

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

A: E-file with your notice to submit or after oral argument.

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

Stipulation (which I may not approve), or a scheduling conference in court or by telephone.

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

I don’t like them. I would rather have a referee do them outside of court in a non-threatening setting. If I must, 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.

10. Courtroom Protocol

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

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, tell me and I should get the hint. The civility problems I have seen are generally limited to 5 attorneys who have a multi-district reputation for acting like children who are not getting their way.

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.

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

Be sure to turn them off or go into ariplane mode. Do not record or photograph in court.

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

Gentle persuasion. Unambiguous schedules. I have had juries complain when attorneys are late—I will try to protect you, but keep that in mind. There is agrowing tendency for attorneys to appear late in hearings. it does not help your image.

11. Comments from Case Managers and Judicial Assistants

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

A: Julie Allen (801) 429-1194

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

A: Follow e-filing rules.

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

A: Calli Stephenson (801) 429-1067

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

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.

12. Other items

Do you have a judicial biography that you would like hyperlinked to your bench book? If so, please advise us of the link to this information or provide us with a copy of the same so we may link it to your bench book.

A: It is on utcourts.gov.

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 the public, 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.

Biographies of 4th District Judges