Local Rule LR 39.01: TRIAL PROCEDURES

LR 39.01 – TRIAL PROCEDURES

(a) Presence of Counsel.

(1) Duty of Counsel.

(A) Entry of an appearance or otherwise participating as counsel of record is a representation that the attorney will be prepared to conduct the trial of the case, from which the attorney may only be relieved by approval of the Court.

(B) In all jury cases, all counsel must be present at all portions and phases of trial including the time during which the jury is considering its verdict unless excused by the Court.

(2) Presumed Present. Unless the contrary affirmatively appears of record, it will be presumed that the parties and their counsel are present at all stages of the trial, or if absent, that their absence was voluntary and constituted a waiver of their presence.

(3) Decorum.

(A) Only one (1) attorney representing each interest in the litigation may examine or cross-examine an individual witness, and not more than two (2) attorneys for each interest in the litigation may argue the merits of an action or proceeding, unless the Court otherwise permits.

(B) During court proceedings all attorneys must stand when speaking. All objections and comments thereon must be addressed to the Court. There shall be no colloquy between opposing counsel.

(C) During court proceedings neither counsel nor parties may leave the courtroom without prior approval of the Court.

(b) Presence of Parties. All parties, plaintiffs and defendants, must be present at any trial unless prior approval of the absence of a party is obtained from the Court.

(c) Witnesses.

(1) Witness List. At the beginning of the trial, counsel must deliver to the Courtroom Deputy Clerk a list in triplicate of all witnesses expected to testify in the case. In civil cases a copy of the list must also be furnished to opposing counsel. The list must contain an abbreviated statement of the connection of the witness to the litigation.

(2) Background Information. When a witness takes the stand, the examining attorney may read such background information as the attorney desires to give concerning the witness and the connection of the witness to the litigation, and then solicit a response from the witness as to the correctness of the information read. The second question should address the issues in litigation.

(3) Approaching the Witness. During the testimony of a witness, the attorney may not approach the witness box without the Court's approval. All documents and objects to be shown to the witness shall be passed to the witness by the court officer.

(4) Deposition Testimony. In jury cases, when a deposition is to be used at trial as the basic testimony of a witness, all counsel offering the deposition must, at least fourteen (14) days prior to the trial date, unless directed otherwise by order of the Court, advise opposing counsel of those portions of the deposition to be read from a transcript, or played on video, to the jury. Such portions are to be designated by underlining or otherwise marking on the deposition transcript, and if such designations are made on the same copy of the deposition transcript by attorneys representing different interests in the litigation, contrasting colors shall be used. All repetitious and irrelevant questions and answers and all colloquies between counsel—including objections to questions, instruction to the deponent, and all remarks—must be deleted. All objections to portions of the depositions thus prepared must be filed, along with any videos, no later than seven (7) days before trial or as otherwise ordered by the Court. All such objections must be accompanied by a statement certifying that all counsel have conferred in a good faith effort to resolve by agreement the objections and that counsel have not been able to do so. If certain objections have been resolved by agreement, the statement must specify the objections remaining unresolved.

(5) Expert and Character Witnesses.

(A) Limitation on Number of Experts. No more than three (3) witnesses may be called by any party in a case to give expert testimony as to any subject, or to impeach or sustain the character of a witness, absent prior approval of the Court.

(B) Stipulation to Qualification as Expert. To obviate the need for qualification of expert witnesses at trial, opposing counsel must, when possible, stipulate prior to trial that an individual who is to testify as an expert witness qualifies as an expert.

(C) Expert Disclosures and Supplementation. Expert witness disclosures must be made timely in accordance with any order of the Court, or if none, in accordance with Fed. R. Civ. P. 26(a)(2). Expert witness disclosure statements may not be supplemented after the applicable disclosure deadline, absent leave of Court. Expert witnesses may not testify beyond the scope of their expert witness disclosure statement. The Court may exclude the testimony of an expert witness, or order other sanctions provided by law, for violation of expert witness disclosure requirements or deadlines.

(D) Rebuttal Experts. No rebuttal expert witnesses shall be permitted at trial, absent timely disclosure in accordance with these Rules and leave of Court.

(E) Presentation of Expert Testimony at Trial. The court may require that the direct testimony of an expert witness, other than a treating physician, be reduced to writing and a copy thereof filed and served upon opposing counsel at least seven (7) days before trial or as otherwise provided by the Court. If so ordered, the following procedures shall apply. Such written statement must contain every material fact and opinion to which the witness would testify on direct examination if the witness were asked the appropriate questions. When the expert witness is called to testify at trial, the expert shall be sworn. After the expert witness is sworn and seated, the qualifications as an expert shall be recited by the attorney who has called the expert witness. Thereafter, the attorney may interrogate the witness as to the specific qualifications of expertise that have direct bearing on the subject matter of the case. If objection to the witness's qualifications is raised, the objecting party may conduct a voir dire as to qualifications. Unless objection is raised to the qualifications of the witness as an expert, the witness shall then read the written statement aloud to the trier of facts. During the reading of the statement, the witness may refer to a mechanical device, drawing, chart, photograph, or other exhibit in order to explain the expert's testimony. After the witness has read the prepared statement, the attorney who called the witness may ask additional questions to further explain his opinion. However, the witness may not proffer any opinion not encompassed in the written statement. At the conclusion of the witness's direct examination in the manner described above, cross-examination and redirect will proceed as usual.

(d) Exhibits. All documentary exhibits on the exhibit list must be prepared in a sufficient number of copies to provide one copy each for the witness, the Court, each opposing counsel, and the examining attorney. The original exhibit shall be provided to the Courtroom Deputy Clerk.

(e) Supplementation of Discovery Responses. Unless provided otherwise in a pretrial or other order, discovery responses must be supplemented no later than thirty (30) days before trial. Failure to timely supplement precludes the proffer at trial of any evidence within the scope of the interrogatories or other responses that was not previously brought to the attention of opposing counsel, absent Court approval. A violation of this Rule, which expands the duty to supplement imposed by Fed. R. Civ. P. 26(e), may also result in the imposition of other sanctions, including taxing of costs to the culpable party for any delays caused.

(f) Subpoena of Trial Witnesses. Should an attorney deliver subpoenas for witnesses in civil cases to another individual for service, such subpoenas must be delivered along with an advance of such funds as may be required, and otherwise in accordance with the Federal Rules of Civil Procedure, at least fourteen (14) days prior to the trial date. If this requirement has not been met, a motion for continuance grounded upon failure of a witness to be served or to appear will not be granted except upon a showing of extenuating circumstances.

(g) Jurors.

(1) Interactions with Jurors. All attempts to curry favor with juries are unprofessional and disfavored. Suggestions of counsel regarding the comfort or convenience of jurors, including without limitation, propositions to dispense with argument or peremptory challenges for the convenience of the jury, must be made to the Court out of the jury's hearing. Before and during the trial, an attorney must avoid conversing or otherwise communicating with a juror on any subject, whether pertaining to the case or not, and must not make any attempt to identify with any juror.

(2) Post-Verdict Interview of Jurors. No attorney, party, or representative of either may interview a juror after the verdict has been returned without prior approval of the Court. Approval of the Court may be sought only by counsel orally in open court, or upon written motion that states the grounds and the purpose of the interview. If a post- verdict interview of one or more members of the jury is approved, the scope of the interview and other appropriate limitations upon the interview will be determined by the Judge prior to the interview.