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Bench Book

Judge Derek Pullan

JUDGE: Derek Pullan - 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: Scheduling conferences are welcome.  While scheduling conferences may be conducted on the Court’s own motion, they are more routinely conducted upon the motion of either party.  URCP 16(b).  The conference may be conducted in person or by telephone.

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

A: Case Management Orders should include the things set forth in Rule 16(b).  A final pre-trial conference will be scheduled after the filing of a Notice of Readiness for Trial.  At the final pre-trial conference, a trial date will be set and a final pre-trial order will issue.

Detailing how electronically-stored information will be preserved and disclosed is a critical part of any case management order.  Electronic discovery can impose excessive costs on the disclosing party.  In my view, the costs of discovery—especially electronic discovery—should be proportional to the amount in controversy and to the complexity of the case.  The court has a role in limiting electronic discovery when it is “unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties resources, and the importance of the issues at stake.”  URCP 26(b)(3)(C).  Shifting the costs of electronic discovery may in some instances be warranted.

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: I do appreciate receiving courtesy copies on complex or dispositive motions.  Courtesy copies are most helpful when received 10 days in advance of the hearing.  The parties should consult with each other and submit one courtesy copy of all papers filed in support of or in opposition to the pending motion.

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: Hearings are scheduled automatically upon receiving a notice to submit.  The clerk will make a reasonable effort to contact you for a convenient hearing date.  Please try to return her call timely.

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

A: If the motion is frivolous or the issue has been authoritatively decided, a request for oral argument may be declined.  However, in most instances, the Court will hear argument on any motion for summary judgment and any motion that would dispose of the action or any claim or defense.  Motions relating to minor discovery disputes are often decided without oral argument.

Q: What is your policy on allowing overlength memoranda?

A: As a general rule, I trust counsel’s judgment in determining what motions merit overlength memoranda.  Counsel should be prudent in availing themselves of this exception to the general rule. 

Permission to file an overlength memorandum does not relieve a party from the duty to “state succinctly and with particularity the relief sought and the grounds for the relief sought.”  URCP 7(b)(1).  Parties should make ex parte application to file an overlength memorandum, and show good cause why this is necessary.  URCP 7(c)(2).  An overlength memorandum shall contain a table of contents and a table of authorities with page references.  URCP 7(c)(3)(C).

That I might not grow blind in your service, please comply with the font and margin requirements.  URCP 10(d).

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

A: Briefs which succinctly state the issue presented and explain supporting legal authority are most helpful.  A string cite without an explanation of why each case matters is not helpful.

Lawyers should avoid “hostile, demeaning, or humiliating words in written and oral communications.”  Written submissions and oral presentations should never “disparage the integrity, intelligence, morals, ethics, or personal behavior of an adversary unless such matters are directly relevant under controlling substantive law.”  Utah Stand. Prof. & Civ. 3.

Editorial comments regarding the attorney or arguments of the opposing party are not helpful.  They are distracting because they disrupt the logical flow of legal analysis.  Resort to this type of writing suggests that the legal authority supporting your argument may be lacking.  If an argument is absurd, ludicrous, or specious, sound legal analysis will eliminate any need to label it so.

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

A: Counsel need not provide copies of cases cited for authoritatively established rules of law.  However, if certain cases have particular significance to the issue presented, I would appreciate copies.

Q: What makes an effective motions argument?

A: I believe that parties are entitled to a judge who has read the moving and opposition papers before oral argument.  If for some reason I have been unable to do this, I will tell you.  Generally, oral argument should not be a recitation of the written submissions.

I have found that the best attorneys follow a few basic rules.  They are prepared to argue the motion.  In my view, there is no substitute for preparation.  The best attorneys state at the outset the issues to be decided.  They succinctly explain the legal authority supporting their client’s position.  They state clearly what it is they want the court to do.

Most important, the best attorneys listen carefully and respond to questions posed by the court.  I generally prepare questions in advance of oral argument.  The answers to these questions are very important to me.  Questions give counsel an opportunity to clarify points upon which my own thinking may be in error.

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: An ex parte request for a temporary restraining order must meet all of the requirements of Rule 65A.

The notice requirements in Rule 65A(b)(1) often result in the request being denied.  As a general rule, a temporary restraining order shall not be granted “without notice to the adverse party or to that party’s attorney.”  A temporary restraining order may issue without notice only if (1) it “clearly appears from specific facts shown by affidavit or by verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party’s attorney can be heard in opposition”; and (2) the applicant or the applicant’s attorney “certifies to the court in writing as to the efforts, if any, that have been made to give notice and the reasons supporting the claim that notice should not be required.”  URCP 65A(b)(1) (underscoring added)..

Finally, in form the proposed temporary restraining order must conform to the requirements of Rule 65A.  This means that the order should have a signature line and a place to state the date and hour of issuance.  URCP 65A(b)(2).  The order shall “define the injury and state why it is irreparable.”  Id.  The order “shall set forth the reasons for its issuance.”  URCP 65A(d).  The order shall be “specific in terms and shall describe in reasonable detail, and not be reference to the complaint or other document, the act or acts sought to be restrained.”  Id.  The order should state specifically the persons upon whom it will be binding.  Id.  Finally, the order should include a place for an expiration date to be inserted.  URCP 65(b)(2).

Q: How do you handle Daubert/Rimmasch gatekeeper-type issues?  Do you typically schedule an evidentiary hearing, or do you handle the issues in another way?  Is there anything about the way in which you handle these issues that you would like counsel to be aware of?

A: Certainly, resolving these issues in advance of the trial is necessary.  The recent amendments to Rule 702 do not contemplate that “evidentiary hearings will be routinely required in order for the trial judge to fulfill his role as a rationally skeptical gatekeeper.”  URE 702, comment.  However, in some instances an evidentiary hearing may be required.  This question must be dealt with on a case-by-case basis.

3. Final Pretrial Conference

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

A: The purpose of a final pre-trial conference is to set a trial date, and to enter a final pre-trial order.  The final pre-trial order establishes, among other issues, (1) the number of alternate jurors; (2) the number of peremptory challenges and by whom they can be exercised; (3) whether the parties desire a juror questionnaire; (4) how voir dire will be conducted; (5) a deadline for submitting voir dire questions; (6) a deadline for the filing of jury instructions; (7) a deadline for final pre-trial disclosures; (8) a deadline for the filing motions in limine, or other pre-trial motions; (9) the trial schedule; and (10) any other important trial issues.

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

A: In my view, settlement discussions and alternative dispute resolution should be explored voluntarily prior to the final pre-trial conference.  If the parties desire to mediate, time to do this should be built into the case management order and/or discovery plan.  It is not my practice to order parties to mediate.  Counsel are aware of mediation and I trust that they will inform their clients of this option.

The parties are entitled to resolve their dispute by trial.  The fact that trial occurs is not evidence of failure.  With the exception of divorce actions, there is no requirement that mediation occur, and I don’t impose one.

Final pre-trial conference is an appropriate time to state what, if any, stipulations have been reached, and whether the issues to be decided at trial can be narrowed.

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

A: No, unless stated expressly in a prior court order.

4. Jury Trial Practice

Jury Selection:

Q: How is voir dire conducted in your courtroom?

A: I conduct a general voir dire.  If counsel have specific questions for any juror, we retire to chambers.  In chambers, counsel is permitted to conduct voir dire.

I believe that voir dire is critically important to the selection of fair and impartial jurors.  Counsel should have a role in conducting voir dire.  In doing this, counsel should remember that because no evidence has been presented at this stage, voir dire is not a time to advocate the merits of his or her client’s case.

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

A: Yes.  (See Answer to previous question).

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

A: Five days prior to trial.

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

A: I allow the use of juror questionnaires, although they are not necessary in every case.  Counsel should confer with each other in good faith regarding the content of any questionnaire.  In my view, the questionnaire should be distributed well in advance of trial so that counsel can have the answers of each potential juror prior to the first day of trial.

Requested Instructions:

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

A: Ten days prior to 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: Prior to trial, counsel should meet and confer with a view to agreeing upon a stipulated set of jury instructions.  As to instructions upon which no agreement can be reached, counsel should file each disputed instruction with the court, together with a citation to and explanation of legal authority for why the instruction.

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

A: Yes.   A copy of these stock instructions is provided to counsel when the final pre-trial order issues.

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

A: Yes.

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 a trial schedule that allows counsel some time each afternoon to prepare for the next day and to attend to other matters at the office.  The daily trial schedule is discussed at final pre-trial conference.

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

A: Pre-trial motions and motions in limine must be filed by the deadline set in the final pre-trial order.

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

A: Counsel should confer with each other and be accommodating in scheduling witness testimony.  At the end of each day of trial, I discuss with counsel who will be called the next day and in what order.

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

A: Exhibits should be marked in advance of trial.  Counsel should agree on what numbers will be designated for Plaintiff and for Defendant (i.e. 1-100 for Plaintiff; 101-200 for Defendant).  Counsel should provide to the Court and to the clerk a numbered list of exhibits.  For each exhibit, there should be a box labeled “offered” and “received.”

5. Bench Trial Practice

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

A: I prefer that jury trials be conducted on consecutive days.  There is more flexibility with bench trials.

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

A: As a general rule, I write my own findings of fact and conclusions of law.  Providing proposed findings after the evidence has been presented can assist in this process.

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

A: Yes.  Before trial, I read them and the cases cited in them.

6. Thoughts on Effective Advocacy

Q: What makes an effective advocate in jury arguments?

A: Credibility is paramount.  When a lawyer engages in obstructive practices during the trial, overstates his or her case, or misrepresents facts, jurors can no longer trust that lawyer’s arguments.  Also, the best trial attorneys have the ability to connect with jurors—to see the case from the juror’s eyes and anticipate what a juror may find unsettling or confusing.  A lawyer’s credibility is also diminished when he or she reflects the ill-will that the client harbors for the other side..

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

A: Lack of preparation for opening and closing arguments diminishes the effectiveness.

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

A: Counsel should treat witnesses with respect.  Cross examination should be confrontive, direct, and pointed.  Counsel should ask hard questions; but there is no place for conduct that is hostile, demeaning, or humiliating.  When counsel abuses a witness, the sympathy of the jury for that witness is aroused.

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

A: It can be.  Even the best preparation seems unable to prevent the unforseen computer glitch and inevitable delay.  Perhaps I am a purist, but I am of the view that computer-assisted presentations often make the advocate disappear.  For centuries, the best form of advocacy has been human advocacy, and I believe that will always be.

7. Criminal Matters

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

A: Where possible, counsel should contact the prosecutor or defense attorney and reach a stipulation.  I routinely grant stipulated motions.  Absent a stipulation, each side has the time period permitted under the rules to respond to a motion to continue.

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

A: I address bail at first appearance (felony) and arraignment (misdemeanors).  After the United States Supreme Court’s decision in Rothgery v. Gillespie County Texas, 128 S. Ct. 2578 (2008), I appoint the public defender provisionally to address bail.

Subsequent motions to readdress bail must be in writing and supported be a showing of good cause

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

A: At sentencing, I will receive any reliable “testimony, evidence, or information the defendant or the prosecuting attorney desires to present concerning the appropriate sentence.”  Utah Code Ann. 77-18-1(7).  Testimony, evidence, or information must be presented in open court, on the record, and in the presence of the defendant.  Id. Victims of crime also have the right to be heard at sentencing, and other important criminal justice proceedings.  Utah Const., Art. I, Sec. 28; Utah Code Ann. 77-38-2(f); 77-38-4(1).  Where the number of victims exceeds 5, the court may in its discretion limit in-court victim statements to a few representative statements.  Utah Code Ann. 77-38-4(6).

Efforts should be made to provide documents to the court and opposing counsel prior to the date of sentencing.

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

A: I am uncertain of what is meant by “private pre-sentence evaluation.”  In cases involving sex offenses, a pre-sentencing psycho-sexual evaluation can be very useful.  Where a defendant is addicted to controlled substances, a pre-sentencing screening and assessment helps me know what level of treatment may be necessary.  Where a defendant suffers from a mental illness, a report from a psychiatrist, psychologist, or therapist regarding prescribed medications and course of treatment is helpful.

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

A: In DUI cases, the Defendant will be ordered to serve the time required under the statute.

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

A: At the beginning of each calendar, I give counsel the opportunity to call any matter which involves scheduling, a continuance, or that is otherwise summary in nature.

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: Early in the case, counsel in domestic actions should meet and confer regarding a discovery plan and case management order.  I have seen domestic cases unnecessarily lag once temporary orders are obtained.  This seems to me to do a disservice to the parties and to their children (who feel acutely the uncertainty brought by the divorce).

Q: What do you want to have on temporary order issues?

A: Counsel should comply with Rule 101.  Evidence in support of temporary orders is presented by proffer.

Motions for temporary orders are scheduled on the civil law and motion calendar. Out of respect for other attorneys and parties, counsel should state clearly and concisely the content of any proffer.  If proffers or argument cannot be made succinctly, or if an evidentiary hearing is necessary, counsel should contact the clerk for a special setting.

There has been a recent trend for counsel to submit to the court numerous documents under a caption “Notice of Lodging.”  This practice is not countenanced by the Rules of Civil Procedure.  The documents lack appropriate foundation and often contain inadmissible hearsay.  The Court will not consider documents submitted in this manner.

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

A: I will interview children, but only after discussing this issue with counsel.

9. Discovery Practices

Q: What is your approach to resolving discovery disputes?

A: In my experience, many discovery disputes can be resolved by better communication between counsel.  Meeting and conferring in an attorney planning meeting, agreeing to a discovery plan, and case management order are important to avoiding these disputes, which can be very costly for the client.

For many litigants, the costs of discovery prevent access to justice.  The costs of discovery should be proportional to the amount in controversy and the complexity of the case.  URCP 26(b)(3)(C).  In all cases, the discovery rules should be administered to effect the just, speedy, and inexpensive determination of the cause.  Efforts should be made to focus discovery on issues relevant to the claims and defenses raised in the action.  Full and timely initial disclosures can reduce discovery costs.  In some instances, it may be appropriate for a party to bear the costs of discovery that is excessive.

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

A: Sanctions should be imposed when counsel or client has engaged in abusive behavior.  However, sanctions should be sought prudently.  Dismissal of claims and default judgment are harsh sanctions warranted only by the most serious abuse of the discovery process..

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

A: Yes.

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: Sadly, yes.  I do take steps to improve civility by discussing the issue with counsel or entering appropriate orders.

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

A: Yes.  Counsel should remain at the podium.  Counsel should ask to approach the witness.  If permission is granted, asking again as to the same witness is not necessary.  In any case, counsel should not linger at the witness stand once the reason for approaching is fulfilled.

In my view, the courtroom is sacred civic space.  It is in the courtroom that our most serious disputes are determined.  People who appear in court have problems that have spiraled outside of their control.  Their lives, liberties, reputations, fortunes, and property all hang in the balance.  The judge and counsel should ensure that the courtroom environment has a dignified formality equal to the seriousness of what is at stake.

11. Other Miscellaneous Issues

Q: What are your opinions regarding courtroom dress?

A: Male lawyers should wear a dress shirt, and tie (done up).  A suit, or jacket with dress slacks, and dress shoes are required.  Sweaters and rain coats do not equal a jacket.  Being less familiar with options for women lawyers, I would simply encourage them to adopt a standard of dress that is equally dignified.

Q: Do you allow children in your courtroom?

A: For adoptions, yes.  If the child is asleep or quiet, yes.  However, I would ask that children who are disruptive to proceedings be taken outside the courtroom.

Q: Do you allow cell phones in your courtroom?

A: The Fourth District Court has adopted a standing order prohibiting cellphones with cameras or other recording capabilities from being taken into the courtroom.  There is an exception for attorneys who use their cellphone for calendaring.  All cellphones should be turned off in the courtroom.

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

A: I try to be prompt myself.

12. Other Suggestions, Thoughts, Concerns

I am grateful for the diligent work that attorneys perform each day on behalf of the courts and their clients.  Thank you for all you do for Utah and her people.  I want you to know that I read what you file and think carefully about what you say.  You and your clients are entitled to a judge who is prepared, careful, and deliberative.

13. Clerk’s Comments

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

A: HEBER: Diann Burgener—(435) 654-4676

Q: My clerk wants you to please do these things:

A: Any pleading making a claim should include the cover-sheet.  If an amended complaint includes new parties, a cover-letter naming those parties should be included.  Pleadings are not accepted by facsimile unless time-sensitive.


Biographies of 4th District Judges