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Bench Book

Judge James R. Taylor

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: I expect counsel to comply with Rule 26 as presently amended. If counsel have a need to vary from the discovery practices set by rule I will consider, and generally grant, a stipulated motion to create a unique discovery schedule for a case.

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

A: The Fourth District Court has adopted Rule 4-502, relating to resolution of discovery disputes.

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

A: I try to strictly comply with Rule 4-502. Discovery disputes should be avoided. I simply expect each side to cooperate with the other to provide any information reasonably possessed or capable of being possessed through reasonable effort to each other. Counsel should always engage in a professional discussion of difficulties and made every effort to resolve problems before bringing them to the Court by motion.

Q: What is your approach to granting extraordinary discovery?

A: Extraordinary discovery should be the exception, rather than the rule. When required, a request should be made by motion.

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

A: Sanctions, when appropriate, may be imposed. I try to avoid sticking a client for misbehavior of counsel (and vice versa).

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

A: If objections and problems during depositions can be reserved and brought to my attention later on, if really needed, that is certainly preferred. Nevertheless, if problems arise during deposition I will be happy to take telephone calls to hear and resolve disputes. I can't promise to be available exactly when needed since I won't come off the bench or take calls at home but when I am in chambers I can activate the electronic record and hear and make a ruling if necessary.

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: The new rule is not a mere ministerial change. Discovery should be considered as an opportunity to present whatever relevant evidence a party may have to the other side. In other words, the object is not to merely deliver what the rules require (and only what the rules require) but, rather, to openly provide all that is relevant. Two other shifts in perspective are equally important. First, it is intended that discovery be “front loaded”, meaning that the relevant information should be delivered as early as possible in the litigation. Secondly, requests or demands for discovery should be reasonable and proportioned. The days of smothering an opponent into submission with expensive discovery requests should be gone.

2. Motions

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

A: Unless you expect me to read and digest the case while on the bench, I have access through Westlaw to about anything you might cite. Additional copies are generally not necessary particularly since I can create virtual electronic copies of anything you have submitted, anyway.

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: Except in the most unusual case where briefing is extensive (more than 50 pages, total) and either counsel wishes to prepare a bench binder with all pending briefs and motions, courtesy copies are not particularly helpful. Submissions on a disc in pdf format might be helpful although if the same documents have already been electronically submitted I already have access to pdf versions.

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

A: My experience is that on all but the most complex cases careful counsel can reasonably present their arguments within the pages allowed by the rule. On those occasions when it just can't get done, however, permission to file an overlength brief should be requested with an explanation of why it's required.

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: I will not usually consider a motion until a notice to submit has been filed. If either side requests oral arguments my clerk will generally contact counsel to schedule an appropriate time for oral argument.

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

A: When the issues are plain or if I perceive that a request for further argument is, in fact, an attempt to delay a proceeding I may, sua sponte, simply rule on the briefs. Such instances, however, are rare. If either party wants oral arguments I'll generally allow it. No promises about how long anyone may argue or how patient I may be!

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

A: The glib answer is memoranda less than 12 pages long that presents a side I find compelling or interesting. But that isn't very helpful. Rehashing arguments from several perspectives is not helpful. Make the point, support it with what you consider to be the most important cases and identify and explain cases inapposite to your position. I'm generally much less persuaded by hyper-technical arguments related to rules or deadlines than in what is substantially just and fair.

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

A: Don't read your brief to me. Be prepared to answer specific questions. Don't assume from my questions or hypotheticals that I have already made up my mind one way or the other. If you don't have anything more to say on a point, say so and sit down. Assume that I have read all the pleadings and briefs. If I haven't been able to get to it, I'll tell you at the outset. The moving party gets the last word. Just remember that "one final comment" from the non-moving party will always entitle the moving party to one more final comment.

An effective advocate does not overstate his case, in opening or closing arguments. He or she does not rely on technicalities but speaks to the substantial justice of the cause. Such an advocate does not speak down to juries but assumes them to be reasonably competent and attentive adults. The best cases are usually built upon a pre-determined theme or theory which is presented during opening statement, revisited during questioning and brought home during closing argument. Attacks on an opposing party or on opposing counsel almost always backfire and alienate rather than endear. Be professional; be respectful; be accurate and give common sense reason to sustain your position.

Most common mistake is speaking too long; attacking the ethics or manhood of opposing counselor the opposing party; insisting upon a factual position that is barely or at least not very effectively supported by the evidence; rising to the bait of the red herring placed by the other side.

Bullying a witness is rarely effective. As much as counsel may wish to make a point with questions, stick to elicitation of facts from witnesses and save legal argument for later. Have a plan in mind for every witness, whether on cross examination or direct examination. General "shotgun" type-questioning is boring and rarely effective.

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

A: The most common reason that a TRO is not granted is a general failure to comply with Rule 65A. It is astounding how often counsel neglect to provide one or more of the following: the attorney’s affidavit regarding notice (65A(b)(1)(B)); an affidavit in support of the motion (from the client, not the attorney!) (65A(b)(1)(A), an order which will expire within 10 days unless extended (65A(b)(2)). When a TRO is submitted electronically, understand that it may sit in the judge’s e-filing queue until the judge gets some time off the bench to focus attention on that task. It may be worth a personal visit or at least a call to the clerk to ask that the matter be brought to the attention of the judge more quickly. I try to empty the e-filing queue at least once daily but in the midst of crowded calendars and trials the computer sometimes gets neglected.

3. Final Pretrial Conference

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

A: I consider the final pre-trial conference to be the last calendar stop before beginning to take evidence. After I have determined during the pre-trial conference that the case is ready for trial, I set the actual trial date. In most cases I can schedule a jury or a bench trial within 90 days.

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

A: The first question, for me, at a pre-trial conference is whether ADR has been completed or whether there is any reasonable prospect for settlement, now that discovery is complete. The next issue, assuming the case is not reasonably expected to resolve short of trial is whether there are outstanding motions or issues that must be resolved before trial can commence. Assuming there are none or that I have resolved those matters I then want to talk about the trial itself. How long does each side anticipate will be needed to present their case? Are there motions in limine that will be made at or shortly before the trial? Have the parties determined and exchanged witness and exhibit lists? Is the trial to the bench or to a jury? Expect to set a firm trial date during the final pre-trial conference.

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

A: I do ask, whenever possible, that counsel appearing at the pretrial conference be trial counsel and have settlement authority.

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

A: Because we are assessing the likelihood of settlement and establishing trial dates, it is very helpful to have clients present whenever possible.

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

A: If a motion in limine is ripe for decision, particularly if the resolution of the motion will directly affect trial preparation, I’ll consider the motion as soon as possible. A notice to submit, filed in advance of the pre-trial conference is helpful to ensure that opposing counsel are prepared to argue a motion.

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

A: Trial briefs or proposed findings of fact are always allowed but rarely required. My experience is that such procedures are at least as helpful to counsel as they are to me in that they focus the attention of an attorney on the nuts and bolts of what must be proven at trial.

4. Jury Trials

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: After reviewing statutory qualification with the panel (who have seen "the video") I begin by having each potential juror stand and give general information from a poster which is displayed before them. The poster calls for: Name; City of Residence; Occupation; Educational background; Marital status; Spouse's occupation; Number of children and their ages; Native of Utah?, if not where are you from? How long have you lived in Utah?; Member of any clubs or organizations?; What magazines, if any, do you regularly read?; Favorite book; Favorite movie; How do you spend your leisure time? I then proceed through a series of questions to the panel specific to the type of case. I will have counsel identify themselves, their clients and witnesses. I question the panel to determine if there are social or business relationships among the potential jurors or with trial participants.

I do not allow lawyer voir dire although I will allow an opportunity either during or at the conclusion of juror questioning for counsel to approach the bench and suggest follow up or additional questions.

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

A: I require proposed voir dire questions to be filed two weeks before the date of jury selection.

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

A: I will consider the use of juror questionnaires on those cases which are unusually complex, lengthy or sensitive. However, such questionnaires must be completed the day or weekend before jury selection will begin and provided to counsel in advance for considered review. Such a process would require the panel to come for a day before the beginning of selection to complete the questionnaires under the supervision of court personnel (my bailiff). In most cases, however, I do not believe the additional information or review available by use of the questionnaire justifies the additional procedure, time and cost.

Jury Instructions:

Q: When do you require instructions to be submitted?

A: I require a complete set of jury instructions to be submitted a month before the commencement of a jury trial.

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

A: In all candor, except for those stock instructions drawn from MUJI, I'm just not comfortable enough with the instructions I have used to present a set and claim them to be "my stocks." Too many counsel have too many good ideas about what to say and how to say it.

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: Counsel should provide one full set with annotations and another without. I prepare instructions as a Word document for each case. I prefer to have the actual instructions put into the proposed set of instructions.

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

A: I actually do schedule time two weeks before a jury trial to sit down and prepare jury instructions. Having proposed instructions from each side in electronic format makes the whole process incredibly simple.

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

A: As soon as the issue is ripe. Some disputes can be handled before trial but it often requires waiting until the evidence is presented to properly consider instruction disputes.

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: We generally begin at 9:00 each day with mid-morning and mid-afternoon breaks and an hour and a half for lunch. Each day concludes at 5:00 although if instruction and argument can be concluded by late afternoon I will usually give the jury the option of deliberating into the evening or returning the following day to complete their work.

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

A: I prefer that counsel confer and resolve as many disputes as possible between them. If both sides can identify a dispute in advance we should resolve that before calling the jury to protect the time of the jury.

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

A: Trial exhibits and demonstratives should be fully disclosed to opposing counsel in advance and only used if there is no question about the subsequent admissibility of the item.

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

A: All exhibits should be provided to the opposing side 30 days before the trial. All should be pre-marked, with different numbers reserved for each side. Typically the Plaintiff takes 1 to 100 and the Defendant 101 to 200. The same document or exhibit should never be marked twice. If one side proposes the document the other side need not separately identify that exhibit.

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

A: Make sure the technology works, smoothly, before trying to use it in front of a jury. Consider how whatever is presented via technology will be recorded in the electronic record. Don’t assume that the Court has or will provide equipment. The Court screen is on the wall in a location difficult to be seen from the bench. Large blow up exhibits (mounted on whiteboard!) and power point presentations are less effective than simple letter size copies of relevant documents when arguing only to the Court.

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

A: The Plaintiff should always assume that at least one witness will be called during the morning of the first day of a jury trial. Let witnesses know when they need to be present but avoid running out of witnesses, requiring dead time during a trial.

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

A: We get a cleaner, better record if counsel will use the podium to question witnesses and present argument to me. Please stand when making objections. When opposing counsel is questioning a witness or making argument, please avoid moving around since such movement unfairly distracts from his/her presentation. If the lawyer or the witness is presenting an exhibit which can't be seen from your seat, feel free to move quietly and unobtrusively to an area where you can see the exhibit. If you are unable to observe a witness' demeanor during questioning, bring that to my attention and I will have questioning counsel move to allow you a clear view of the witness.

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: They usually don't last as long ... I can also decide questions of law such as admissibility of evidence and expert witness qualification as part of the general trial without conducting a special or separate hearing. I'm certainly more likely to receive evidence conditionally, that is subject to an objection, to allow the proponent to establish relevance or foundation through subsequent questions or testimony.

6. Post-trial Issues

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

A: I don't require these documents, preferring, instead, trial briefs when counsel feels the need to inform me on the particular law or evidence of a case.

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

A: I do not require trial briefs but don't discourage them, either. If the cause is relatively straight forward, don't prepare one "just because." On the other hand, I don't pretend to know everything (I'll profess to knowing very little) and a concise roadmap of what you think the evidence will be and why it will be legally significant may give me a written opening statement that will make your position much more persuasive.

7. Technology in the Courtroom

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

A: So long as the technology assists rather than detracts from a presentation, the technology is welcome. Whatever is done, however, must be capable of becoming a part of the record of the case. Things shown or exhibited to me or the jury must be able to be seen by an appellate court upon examination of the record of the case. Sounds presented, whether speech or otherwise, must also be capable of representation in a transcript or other record.

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

A: If such a presentation is intended as substantive evidence I would be concerned about making an effective record. If presented as part of argument to the Court, I'm less impressed with technology than substance. I prefer something I can review and doodle upon as I consider your arguments. Nevertheless, I have seen some impressive computer presentations and I certainly wouldn't rule out the procedure for the right case.

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

A: When the computer freezes, the picture can’t be seen, the appropriate documents can’t be quickly located or where counsel merely reads a “slide” or computer screen to me.

8. Criminal Matters

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

A: I try to limit each felony case to one “waiver” or “roll call” appearance. After that hearing I expect either a request for preliminary hearing, a waiver or a waiver and a plea. Exceptions are made when the felony first appearance was only recently conducted and counsel cannot reasonably be expected to have obtained, reviewed and discussed the investigative reports with the defendant. It is preferred that sufficient time be allowed between the first appearance and the “waiver” hearing to allow the discovery of investigative reports. My sometimes unfulfilled expectation is that when an information is filed the State is ready to conduct both preliminary hearing and trial. Obviously, the “ready for trial” and “one waiver” standards are aspirational. I do my best to balance the constitutional rights to fundamental fairness for both sides and a speedy resolution of criminal charges.

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

A: Anytime a pre-conviction defendant is held without bail unless the court has determined that bail need not be allowed following an appropriate hearing, the defendant is entitled to an immediate establishment of a bail amount. Sometimes that determination must precede the appointment of counsel (when a defendant is held on an affidavit of probable cause for warrantless arrest but no information has yet been filed). Because of the duty to notify alleged victims of changes in bail amounts any request to modify bail must be upon notice to the State or with a waiver of that notice from the State. Once bail is set I would prefer to not re-address the question unless either side can present a legitimate change of circumstances or additional relevant information that was not available when bail was set.

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

A: I don’t have any specific policy except to follow the law. In felony matters I do comply with the statute to require a written agreement.

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

A: I will first inquire if defense counsel has reviewed the pre-sentence report to determine if it has been correctly prepared. I am looking for procedural errors such as accuracy of the criminal history or whether the scoring and placement on the sentencing matrix has been properly done. If the report was prepared and scored correctly I will then ask defense counsel to present anything else deemed relevant to sentencing. I appreciate specific suggestions if I am being asked to sentence differently than recommended by the report. I will then ask counsel for the State to respond, present relevant information and to make whatever sentencing recommendation is desired. I will, last of all, allow the defendant an opportunity to speak in his or her own behalf.

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

A: A private pre-sentence evaluation, particularly when first presented at the time of sentencing, is not helpful. I view that as simply a written argument which can be more effectively made by counsel. If the report is prepared in advance it is helpful if the format corresponds directly to the report from AP&P so I can determine where the two reports diverge. I have never yet seen a private pre-sentence evaluation that gave the defendant a substantive advantage or led me to a consideration that wasn’t already under consideration.

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

A: I occasionally receive a recommendation from adult probation and parole, in felony cases, to unsuccessfully terminate probation, impose a lengthy jail term and send the balance of fines and fees to debt collection. I view that as a de facto amendment of a felony charge to a misdemeanor offense. I think that is bad public policy and will not follow such a recommendation. When the only failure of supervised probation is non-payment of money I will convert to court probation and consider reducing the balances to a manageable amount to allow the defendant to complete probation. If the defendant has otherwise demonstrated an inability or unwillingness to complete felony probation it is my view that the correct result is revocation of probation and sentence per statute.

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

A: I will always take felony first appearances first since those people are in court for the first time and often unrepresented. After that I will call matters in the order requested by counsel.

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

A: Be prepared but be flexible. I will expect any prosecutor in the room to be capable of representing the state on any case called. Try to communicate plea offers and other matters to defense counsel before court begins to avoid distracting conversations during the calendar.

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

A: Be prepared. Try to determine and discuss plea offers and other matters before court begins to avoid distracting conversations during the calendar. There is a disturbing tendency—certainly not aided by the caseload—to do most of the communication with clients during the criminal calendar. This is counterproductive and often results in multiple delays and continuances.

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: I do not feel that Utah law allows the appointment of a "special master" to make short term custody or visitation decisions. Custody evaluations are certainly welcome and ordered when requested although I will point out to the parties that such a procedure will add substantial time and cost to the case. I will appoint a Guardian ad Litem when requested or when it appears that neither party can effectively represent the best interests of any children. The default result in such a circumstance is that the parties will equally share the fees for the guardian.

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

A: These matters are usually conducted by the Domestic Commissioner.

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

A: See above.

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

A: See above.

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: Follow the rule. (Rule 26.1(c)).

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

A: Binders are sometimes helpful if only some of a number of pending matters are being considered.

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: Subject to the above answer, matters submitted electronically need not be re-presented on paper.

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

A: Timely, with notice to the other side.

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

A: These matters are handled by the Domestic Commissioner. In any event I expect counsel to first try to come to an agreement about how to conduct relevant discovery.

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

A: I think interviews of young children are, per se, abusive. Interviews of older children should be avoided but, if allowed by the statute and with the consent of the parties, would be conducted in chambers but on the record. The presence of counsel is preferred but would be determined on a case by case basis.

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: Yes, of course there are times when parties and/or counsel are not civil to each other and it creates a problem. When I encounter such a situation I will deal with the behavior directly. I expect counsel to act professionally to each other and to control the behavior of their clients.

Q: What are your opinions regarding courtroom dress?

A: Dress like a professional adult.

Q: Do you allow children in your courtroom?

A: Bring children to court only when they are an essential part of the proceedings.

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

A: Silence cellphones and make audio or video recordings only when authorized by order made under the rule.

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

A: Be on time.

11. Comments from Case Managers and Judicial Assistants

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

A: My case manager is Julie Allan at 801-429-1194.

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

A: My "lead" judicial assistant is Sherry Taylor at 801-429-1066. Sherry is in charge of the calendar, so contact her for scheduling whenever you can although Julie can also schedule when Sherry is not available. If you call and get the truly annoying answering system, please stay calm and leave a message. We really do try to promptly return all calls.

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

A: When leaving a message on voice mail, please leave your name, number, case number and a brief explanation of why you are calling. This helps me prioritize my calls. Please note that we try to return all calls the same day or the next day at the latest.

12: Other items

Q: 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: Please refer to the court website for biographical information.

Biographies of 4th District Judges