Case Management Order; Guidelines for Jury Instructions in Civil Cases; Proposed Final Pretrial Order; Standard Civil Voir Dire; Trial Conduct and Decorum; Waiver Appearance

=== Case Management Order ===

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA x v. x Plaintiff(s), Defendant(s). No. CV- CASE MANAGEMENT ORDER On (date), a [Telephonic] Case Management Conference was held pursuant to Rule 16(b) of the Federal Rules of Civil Procedure. The parties met before the conference in accordance with Rule 26(f) and prepared a Case Management Report (Doc. xx). On the basis of the [Telephonic] Case Management Conference and the Case Management Report, IT IS HEREBY ORDERED: 1. Deadline for Initial Disclosures. Initial disclosures required by Federal Rule of Civil Procedure 26(a) shall be exchanged no later than _____. [If not already exchanged, initial disclosures required by Federal Rule of Civil Procedure 26(a) shall be exchanged within 21 days from the date of this Order is filed.] 2. Deadline for Joining Parties, Amending Pleadings, and Filing Supplemental Pleadings. Motions to join parties, amend pleadings, and file supplemental pleadings shall be filed promptly and no later than 60 days from the date of this Order. [2. Deadline for Joining Parties, Substituting Unknown Parties, Amending Pleadings, and Filing Supplemental Pleadings. Motions to join parties, amend pleadings, and file 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supplemental pleadings shall be filed promptly and no later than 70 days from the date of this Order is filed.] 3. Discovery Limitations. Depositions shall be limited to seven (7) hours each as provided in Rule 30(d)(1) of the Federal Rules of Civil Procedure. Each side may propound up to 25 interrogatories, including subparts, 25 requests for production of documents, including subparts, and 25 requests for admissions, including subparts. [The parties may agree to additional discovery requests without approval of the Court and may move the Court for additional discovery requests during the fact discovery period.] 4. Fact Discovery. The deadline for completing fact discovery, including discovery by subpoena, shall be _____. To ensure compliance with this deadline, the following rules shall apply: a. Depositions: All depositions shall be scheduled to commence at least five working days prior to the discovery deadline. A deposition commenced five days prior to the deadline may continue up until the deadline, as necessary. b. Written Discovery: All interrogatories, requests for production of documents, and requests for admissions shall be served at least 45 days before the discovery deadline. c. The parties may mutually agree in writing, without Court approval, to extend the time provided for discovery responses in Rules 33, 34, and 36 of the Federal Rules of Civil Procedure. Such agreed-upon extensions, however, shall not alter or extend the discovery deadlines set forth in this Order. d. Special Provisions Regarding Rule 34 Responses: Objections to Rule 34 document production requests shall be stated with specificity; general or boilerplate objections are not permitted. Document production in response to a Rule 34 request must be completed no later than the time specified in the request or another reasonable time specified in the response. An objection to a Rule 34 request must state whether any responsive materials have been withheld on the basis of that objection. 5. Expert Disclosures and Discovery. - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. Plaintiff(s) shall provide full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than _____. b. Defendant(s) shall provide full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure no later than _____. c. Rebuttal expert disclosures, if any, shall be made no later than _____. Rebuttal experts shall be limited to responding to opinions stated by initial experts. d. Expert depositions shall be completed no later than _____. As with fact witness depositions, expert depositions shall be scheduled to commence at least five working days before the deadline. e. Disclosures under Rule 26(a)(2)(A) must include the identities of treating physicians and other witnesses who will provide testimony under Federal Rules of Evidence 702, 703, or 705, but who are not required to provide expert reports under Rule 26(a)(2)(B). Rule 26(a)(2)(C) disclosures are required for such witnesses on the dates set forth above. Rule 26(a)(2)(C) disclosures must identify not only the subjects on which the witness will testify, but must also provide a summary of the facts and opinions to which the expert will testify. The summary, although clearly not as detailed as a Rule 26(a)(2)(B) report, must be sufficiently detailed to provide fair notice of what the expert will say at trial.1 f. As stated in the Advisory Committee Notes to Rule 26 (1993 Amendments), expert reports under Rule 26(a)(2)(B) must set forth “the testimony the witness is expected to present during direct examination, together with the reasons therefor.” Full and complete disclosures of such testimony are required on the dates set 1 In Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817 (9th Cir. 2011), the Ninth Circuit held that “a treating physician is only exempt from Rule 26(a)(2)(B)’s written report requirement to the extent that his opinions were formed during the course of treatment.” Id. at 826. Thus, for opinions formed outside the course of treatment, Rule 26(a)(2)(B) written reports are required. Id. For opinions formed during the course of treatment, Rule 26(a)(2)(C) disclosures will suffice. - 3 - forth above; absent extraordinary circumstances, parties will not be permitted to supplement expert reports after these dates. The Court notes, however, that it usually permits parties to present opinions of their experts that were elicited by opposing counsel during depositions of the experts. Counsel should depose experts with this fact in mind. g. Each side shall be limited to one retained or specially employed expert witness per issue. 6. Discovery and Disclosure Disputes. a. Except during a deposition, if a discovery or disclosure dispute arises and cannot be resolved despite sincere efforts to resolve the matter through personal consultation (in person or by telephone), the parties shall jointly file a “Motion for Resolution of Discovery/Disclosure Dispute” containing (1) a brief written summary of the dispute, not to exceed two pages per side, with an explanation of the position taken by each side; and (2) a joint written certification that counsel or the parties have attempted to resolve the matter through personal consultation and sincere effort as required by Local Rule of Civil Procedure (LRCiv) 7.2(j) and have reached an impasse (if the opposing party has refused to personally consult, the party seeking relief shall describe the efforts made to obtain personal consultation). The parties shall not otherwise file motions regarding discovery or disclosure disputes without leave of the Court. Upon review of the filed written summary of the dispute, the Court may set a telephonic conference, order additional briefing, and/or decide the dispute without conference or briefing. If a discovery/disclosure dispute arises in the course of a deposition and it is believed that an immediate ruling of the Court is appropriate—a circumstance that should be exceedingly rare—the parties shall jointly contact the Court telephonically at 602-322-7630 and shall send an email to [email protected] with a copy to opposing counsel. b. Parties shall not file a Motion for Resolution of Discovery/Disclosure Dispute or contact the Court concerning a discovery or disclosure dispute without first seeking to resolve the matter through personal consultation and sincere effort as required 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 by Local Rule of Civil Procedure 7.2(j). Any additional briefing ordered by the Court shall also comply with Local Rule of Civil Procedure 7.2(j). c. Parties shall promptly attempt to resolve discovery and disclosure disputes and shall promptly bring unresolved discovery and disclosure disputes to the Court’s attention. Absent extraordinary circumstances, the Court will not entertain fact discovery and disclosure disputes later than 30 days after the deadline for completion of fact discovery and will not entertain expert discovery and disclosure disputes later than 30 days after the deadline for completion of expert discovery. 7. Dispositive Motions. a. Dispositive motions, including Daubert motions,2 shall be filed no later than _____. Such motions must comply in all respects with the Federal Rules of Civil Procedure and the Local Rules. b. No party shall file more than one motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure without leave of court. c. The parties shall not notice oral argument on any motion. Instead, a party desiring oral argument shall place the words “Oral Argument Requested” immediately below the title of the motion or response pursuant to Local Rule of Civil Procedure 7.2(f). The Court will issue an order scheduling oral argument as it deems appropriate. 8. Good Faith Settlement Talks. All parties and their counsel shall meet in person and engage in good faith settlement talks no later than ______________. Upon completion of such settlement talks, and in no event later than five working days after the deadline set forth in the preceding sentence, the parties shall file with the Court a joint report on settlement talks executed by or on behalf of all counsel. The report shall inform the Court that good faith settlement talks have been held. In the report or earlier, the parties shall indicate whether they seek referral to a United States Magistrate Judge to 2 Evidentiary motions made under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conduct a settlement conference. The parties shall promptly notify the Court at any time when settlement is reached during the course of this litigation. 9. Briefing Requirements. a. All memoranda filed with the Court shall comply with Local Rule of Civil Procedure 7.1(b) requiring 13 point font in text and footnotes. b. Citations in support of any assertion in the text shall be included in the text, not in footnotes. 10. Deadline for Notice of Readiness for Pretrial Conference. The Plaintiff(s) shall notify the Court that the parties are ready for scheduling a Final Pretrial Conference pursuant to Rule 16(e). The Plaintiff(s) shall file and serve this notice within ten (10) days after the dispositive motion deadline if no dispositive motions are pending on that date. If dispositive motions are pending, Plaintiff(s) shall file and serve such notice within ten (10) days after the resolution of dispositive motions. The Court will then issue an Order Setting Final Pretrial Conference that (a) sets deadlines for briefing motions in limine, (b) includes a form for the completion of the parties’ joint proposed Final Pretrial Order, and (c) otherwise instructs the parties concerning their duties in preparing for the Final Pretrial Conference. A firm trial date will be set at the Final Pretrial Conference. Counsel may submit agreed upon proposed trial dates in advance of the Final Pretrial Conference. [for referral cases: 10. Deadline for Notice of Readiness for Pretrial Conference. The Plaintiff(s) shall notify the Court that the parties are ready for scheduling a Final Pretrial Conference pursuant to Rule 16(e). The Plaintiff(s) shall file and serve this notice within ten (10) days after the dispositive motion deadline if no dispositive motions are pending on that date. If dispositive motions are pending, Plaintiff(s) shall file and serve such notice within ten (10) days after the resolution of dispositive motions. The District Judge assigned to this matter will then issue an Order Setting Final Pretrial Conference that (a) sets deadlines for briefing motions in limine, (b) includes a form for the completion of the parties’ joint proposed Final Pretrial Order, and (c) otherwise instructs the parties concerning their duties in - 6 - preparing for the Final Pretrial Conference. The District Judge will set a firm trial date at the Final Pretrial Conference.] 11. The Deadlines Are Firm. The parties are advised that the Court intends to enforce the deadlines set forth in this Order and should plan their litigation activities accordingly. Any motion to continue any deadline shall include in the motion a statement regarding whether and which of the other deadlines would be affected if the motion were granted and shall contain the proposed new deadlines. The Court will not, absent truly unusual circumstances, extend the schedule in this case to accommodate settlement talks. 12. Requirement for Paper Courtesy Copies. A paper courtesy copy of dispositive motions and any responses or replies thereto shall be either mailed to the judge or hand-delivered to the judge’s mailbox located in the courthouse within three business days of the electronic filing – the paper copy should be printed from the Court’s electronic system so that it has the Court’s filing system document number and page numbers. Please do not attempt to deliver documents to the Judge’s chambers. Courtesy copies of documents too large for stapling must be bound with a metal prong fastener at the top center of the document or submitted in three-ring binders. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 7 -

=== Guidelines for Jury Instructions in Civil Cases ===

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GUIDELINES FOR JURY INSTRUCTIONS IN CIVIL CASES U.S. Magistrate Judge Deborah M. Fine The parties shall file a joint list of proposed jury instructions. On the same day of filing, a Word version shall be emailed to chambers at [email protected]. The list shall contain four sections. I. Section I shall contain Ninth Circuit Model Civil Jury Instructions Used by All Arizona Judges as found at www.azd.uscourts.gov under Judges’ Information. If a model instruction is requested by both parties, the instruction shall be preceded by “ST” (stipulated to). If the instruction is requested by only one party, the instruction shall be preceded by either “PL” (Plaintiff) or “DF” (Defendant). If multiple Defendants, identify which Defendant as “DF1,” etc. EXAMPLE OF MODEL INSTRUCTIONS: Jury to be Guided by Official English Interpretation ST § 3.1 Duties of Jury to Find Facts and Follow Law ST § 3.2 What is Evidence DF § 3.3 What is Not Evidence DF § 3.4 ST § 3.5 Direct and Circumstantial Evidence PL § 3.6 Credibility of Witnesses DF § 3.7 Direct and Circumstantial Evidence ST § 3.8 Causation ST § 3.9 Charts and Summaries Not Received in Evidence ST § 3.10 Charts and Summaries in Evidence DF § 3.11 Two or More Parties – Different Legal Rights DF § 3.12 Impeachment Evidence - Witness The parties shall include the full text of all model instructions in the joint pleading and on the Word version emailed to chambers. II. Section II shall contain any non-model instructions to which the parties have stipulated. III. Section III shall contain any non-model instructions requested by Plaintiff (numbered consecutively). Plaintiff shall include citation to authority to support the requested instruction. Defendant shall state all objections to such instruction immediately following the instruction and Plaintiff’s authority. Defendant shall support any objection with citation to authority. If the Defendant offers an alternative instruction, such alternative instruction shall immediately follow Defendant’s objection. IV. Section IV shall contain any non-model instructions requested by Defendant (numbered consecutively). Defendant shall include citation to authority to support the requested instruction. Plaintiff shall state all objections to such instruction immediately following the instruction and Defendant’s authority. Plaintiff shall support any objection with citation to authority. If Plaintiff offers an alternative instruction, such alternative instruction shall immediately follow Plaintiff’s objection. Each proposed instruction shall begin on a new page. The parties should note that, absent a showing of good cause, the failure to submit a proposed instruction or make an objection in the joint pleading by the deadline set forth in the Order Setting Final Pretrial Conference shall result in the instruction being refused or the objection being deemed waived. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 -

=== Proposed Final Pretrial Order ===

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA x, v. x, Plaintiff(s), Defendant(s). No. CV- PROPOSED FINAL PRETRIAL ORDER The following is the joint Proposed Final Pretrial Order to be considered at the Final Pretrial Conference set for ______________________, 20 at ____ a.m./p.m. A. TRIAL COUNSEL FOR THE PARTIES Include mailing addresses, office phone numbers, fax numbers, and email addresses. Plaintiff(s): Defendant(s): B. STATEMENT OF JURISDICTION 1. Cite the statute(s) which gives this Court jurisdiction. (E.g., Jurisdiction in this case is based on diversity of citizenship under Title 28 U.S.C. § 1332.) 2. State whether jurisdiction is or is not disputed. (If jurisdiction is disputed, the party contesting jurisdiction shall set forth with specificity the bases for the objection.) C. STIPULATIONS AND UNCONTESTED FACTS AND LAW 1. The following material facts are admitted by the parties and require no proof: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. The following material facts, although not admitted, will not be contested at trial by evidence to the contrary: 3. The following issues of law are uncontested and stipulated to by the parties: D. CONTESTED ISSUES OF FACT AND LAW 1. The following are the material issues of fact to be tried and decided: (Each issue of fact must be stated separately and in specific terms. Each party’s contention must be set forth with respect to each and every issue of fact.) E.g., Issue # 1: Whether Plaintiff used due care. Plaintiff Contends: Plaintiff looked both ways before crossing street . . . . Defendant Contends: Plaintiff ran out into the street without looking . . . . 2. The following are the issues of law to be determined: (Each issue of law must be stated separately in specific terms. Each party’s contention must be set forth with respect to each and every issue of law.) E.g., Issue # 1: Whether Plaintiff’s suit is barred by the doctrine of laches. Plaintiff Contends: . . . Defendant Contends: . . . Each party shall file a short trial brief on all contested issues of law contemporaneously with the filing of the Proposed Final Pretrial Order. E. LIST OF WITNESSES Each party shall separately list the names of witnesses, their addresses, whether they are fact or expert witnesses, and a brief description of the testimony of each witness. The witnesses shall be grouped as follows: (a) witnesses who shall be called at trial; (b) witnesses who may be called at trial; and (c) witnesses who are unlikely to be called at trial. Additionally, the parties shall include the following text in this section of the Proposed Final Pretrial Order: “Each party understands that it is responsible for ensuring that the witnesses it wishes to call to testify are subpoenaed. Each party further understands that any witness a party wishes to call shall be listed on that party’s list of witnesses; the party cannot rely on the witness having been listed or subpoenaed by another party.” - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F. LIST OF EXHIBITS 1. The following exhibits are admissible in evidence and may be marked in evidence by the Clerk: a. b. Plaintiff’s Exhibits: Defendant’s Exhibits: 2. As to the following exhibits, the parties have reached the following stipulations: a. b. Plaintiff’s Exhibits: Defendant’s Exhibits: 3. As to the following exhibits, the party against whom the exhibit is to be offered objects to the admission of the exhibit and offers the objection stated below: a. Plaintiff’s Exhibits: (E.g., City Hospital records of Plaintiff from March 6, 1985 through March 22, 1985. Defendant objects for lack of foundation because . . . (the objection must specify why there is a lack of foundation. b. Defendant’s Exhibits: (E.g., Payroll records of Plaintiff’s employer which evidence payment of Plaintiff’s salary during hospitalization and recovery. Plaintiff objects on grounds of relevance and materiality because ... (the objection must specify why the exhibit is not relevant or material. If there are more than 20 exhibits, the parties shall submit their exhibit lists in writing, five (5) business days before trial, in a format to be designated by the Court at the Final Pretrial Conference, in Microsoft Word format by email to [email protected]. 4. The parties shall include the following text in this section of the Proposed Final Pretrial Order: “Each party hereby acknowledges by signing this joint Proposed Final Pretrial Order that any objections not specifically raised herein are waived.” . . . . . . - 3 - G. DEPOSITIONS TO BE OFFERED The parties shall list the depositions that may be used at trial. The portions to be read or submitted at trial shall be identified by page and line number. Additionally, the party offering the deposition shall provide the Court with a copy of the offered deposition testimony. The offering party shall highlight, in color, the portions of the deposition to be offered. If multiple parties are offering the same deposition, only one copy of such deposition shall be provided. Such copy shall contain each party’s highlighting (each party should use a different color). The parties shall include the following text in this section of the joint Proposed Final Pretrial Order: “Each party hereby acknowledges by signing this joint Proposed Final Pretrial Order that any deposition not listed as provided herein will not be allowed, absent good cause.” H. MOTIONS IN LIMINE (JURY TRIAL) Motions in limine shall be filed as separate pleadings and responded to in accordance with the instructions contained in the Order Setting Final Pretrial Conference. I. LIST OF PENDING MOTIONS List all pending motions. J. PROCEDURES FOR EXPEDITING TRIAL The parties shall discuss and report on all available procedures that might be used to expedite trial, including but not limited to (a) presenting stipulated summaries of deposition testimony rather than reading deposition excerpts; (b) editing videotaped depositions to limit the amount of time required for presentation; (c) using summary exhibits in place of voluminous documentary evidence; (d) stipulations on authenticity and foundation; (e) presenting direct expert testimony through summary or written reports; and (f) using the courtroom technology to expedite the presentation of evidence. The parties are invited to contact Armida Herrera at 602-322-7630 to arrange a time to visit the courtroom and examine its technology. Information about courtroom technology can also 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be found at www.azd.uscourts.gov under Judges and Courtrooms and Orders, Forms and Procedures. K. ESTIMATED LENGTH OF TRIAL ____ hours for opening statements and closing arguments ____ hours for Plaintiff(s) case ____ hours for Defendant(s) case ____ hours for rebuttal L. JURY DEMAND State whether a jury trial has or has not been requested. If a jury trial has been requested, indicate the appropriate selection: 1. 2. The parties stipulate that the request was timely and properly made; The Plaintiff/Defendant contends that the request was untimely made because . . . (explain why request was untimely); or 3. The Plaintiff/Defendant contends that although the request for trial by jury was timely, the request is otherwise improper as a matter of law because . . . (indicate the legal basis for why a jury trial is improper). M. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR BENCH TRIALS Proposed Findings of Fact and Conclusions of Law shall be lodged by each party as a separate pleading in accordance with the instructions contained in the Order Setting Final Pretrial Conference. The parties shall include the following text in this section of the Proposed Final Pretrial Order: “The separately lodged Proposed Findings of Fact and Conclusions of Law are incorporated by reference into this joint Proposed Final Pretrial Order.” . . . . . . . . . - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 N. JOINT PROPOSED JURY INSTRUCTIONS, JOINT PROPOSED VOIR DIRE QUESTIONS, AND PROPOSED FORMS OF VERDICT FOR JURY TRIALS The joint Proposed Jury Instructions, joint Proposed Voir Dire Questions, and Proposed Forms of Verdict shall be filed in accordance with the instructions contained in the Order Setting Final Pretrial Conference. O. CERTIFICATIONS The parties shall include the following text in this section of the Proposed Final Pretrial Order: “The undersigned counsel for each of the parties in this action do hereby certify and acknowledge the following: 1. 2. 3. All discovery has been completed. The identity of each witness has been disclosed to opposing counsel. Each exhibit listed herein: (1) is in existence; (2) is numbered; and (3) has been disclosed and shown to opposing counsel. 4. The parties have complied in all respects with the mandates of the Court’s Case Management Order and Order Setting Final Pretrial Conference. 5. The parties have made all of the disclosures required by the Federal Rules of Civil Procedure (unless otherwise previously ordered to the contrary). 6. The parties acknowledge that once this Proposed Final Pretrial Order has been signed and lodged by the parties, no amendments to this Order can be made without leave of Court.” P. INFORMATION FOR COURT REPORTER In order to facilitate the creation of an accurate record, please file a “Notice to Court Reporter” one week before trial containing the following information that may be used at trial: 1. 2. 3. Proper names, including those of witnesses. Acronyms. Geographic locations. - 6 - 4. 5. 6. Technical (including medical) terms, names or jargon. Case names and citations. Pronunciation of unusual or difficult words or names. Please also send (or transmit electronically) to the court reporter a copy of the concordance from key depositions. Attorney for Plaintiff(s) . Attorney for Defendant(s) Based on the foregoing, IT IS ORDERED that this Proposed Final Pretrial Order jointly submitted by the parties is hereby APPROVED and ADOPTED as the official Pretrial Order of this Court. DATED this ___ day of ______________________, 20 . . Deborah M. Fine United States Magistrate Judge 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 7 -

=== Standard Civil Voir Dire ===

CIVIL VOIR DIRE QUESTIONS Judge Deborah M. Fine 1. Statement of the Case a. Have any of you read or heard anything about this case from any source whatsoever? b. Given this brief description of the facts, is there anything about this case that would cause you to believe that you could not consider the evidence fairly and impartially according to the law? 2. Plaintiff(s) a. b. c. Plaintiff and Plaintiff’s counsel, please stand. The Plaintiff in this case is _______. Plaintiff is represented by _________. Do any of you know these individuals on any basis, social, professional or otherwise? d. Do any of you know any of the employees in counsel’s office on any basis, social, professional or otherwise? e. (If Plaintiff is a business) Have any of you ever had a business or employment relationship of any kind with Plaintiff? 3. Defendant(s) a. b. c. Defendant and defense counsel, please stand. The Defendant in this case is _______. Defendant is represented by ______. Do any of you know these individuals on any basis, social, professional or otherwise? d. Do any of you know any of the employees in counsel’s office on any basis, social, professional or otherwise? e. (If Defendant is a business) Have any of you ever had a business or employment relationship of any kind with Defendant? 1 4. Jurors a. Did anyone among this jury panel know each other, or work together or serve on jury panels together before assembling here today? 5. Time Qualify & Hardship a. I expect to conduct trial on these dates and times: b. Would the length of the trial create an undue hardship for any of you? c. Does anyone have any problem with vision, hearing, or anything that would cause you to have difficulty from observing and sitting for long periods of time? d. Do any of you have any other physical difficulty, health problems, or home problems that might interfere with your ability to serve as a juror in this case? 6. Witnesses and Third Parties a. During the trial of this case, witnesses may be called to testify on behalf of the parties. Do any of you know or have you ever heard of any of these people? b. c. Do any of you know or have you ever heard of any of these people? (If response is yes) Would your knowledge or experience with any of these parties or organizations affect your ability to serve fairly and impartially in this case? 7. Prior Litigation & Relevant Past a. Have any of you or members of your immediate family been a party or witness in any litigation (excluding domestic relations, traffic, or probate)? 8. Legal Knowledge and Application a. This is a civil case which is to be decided by the preponderance of the evidence. This is different from a criminal case where the government has to prove its case beyond a reasonable doubt. Does anyone have a problem applying a lower burden of proof than used in a criminal case? b. Do any of you or any of the members of your family have any legal training? 2 c. I will instruct you on the law at the conclusion of the case. If selected as a juror, you will take an oath to follow the law. Do any of you think you would have trouble following the law if you disagree with it? d. If selected as a juror, would any of you have trouble rendering a verdict based solely on the evidence presented during the trial, setting aside any personal beliefs, opinions, or biases you might have? e. Do you have strong feelings for or against a party who brings a lawsuit? 9. Easel Questions a. Starting with Juror Number One, please stand and answer the questions. (1) (2) (3) (4) Juror number. The city where you live. Length of time at current residence. Education after high school, if any. (5) Marital status. (6) Number of children. Ages of children if under 18. (7) (8) Employment (current and former jobs for self/spouse). Prior jury service: civil or criminal, how case(s) resolved (but don’t reveal how you voted) 10. Final Questions a. Does anyone have any other reason whatsoever to believe they can’t serve as a fair and impartial juror in this case? b. c. Counsel for Plaintiff, do you have any further questions at this time?1 Counsel for Defendant, do you have any further questions at this time? 1 The parties only may ask follow-up questions to the responses generated by the jurors. In other words, counsel may not propound new questions to the entire panel (e.g., “do any of you” or “has anyone . . . .”). 3 11. Private Questions a. If a juror wishes to answer a question privately, he or she will be requested, by number, to remain in the courtroom during recess. 4

=== Trial Conduct and Decorum ===

TRIAL CONDUCT AND DECORUM U.S. Magistrate Judge Deborah M. Fine The purpose of this protocol is to emphasize, not supplant, certain portions of the ethical principles applicable to the lawyer’s conduct in the courtroom and to preserve the dignity of the courtroom environs and the judicial process. This protocol is also intended to further efficient and orderly fact-finding. Your compliance with the following will be appreciated: 1. Be on time for each court session. 2. Stand and do not pace when addressing the Judge, jury, or witnesses. 3. Stand at the podium at all times when addressing witnesses. Except upon express permission of the Court, all communications to the Court shall be made from a standing position at counsel’s table or from the podium. Counsel shall not approach opposing counsel, the bench, a witness, the court reporter’s table, or the clerk’s desk without the permission of the Court. 4. Do not appeal to emotion or prejudice during an opening statement to a jury. Confine yourself to a concise summary of the important facts that you expect to prove or your position on facts the opposition has undertaken to prove. 5. At the final pretrial conference, give the Courtroom Clerk and the Judge the caption of the case and the names and addresses of all persons at counsel table and all witnesses to be called. 6. Exhibits: a. Court time should not be used for marking exhibits. This should be done in advance of the Court session. All exhibits shall be provided to the Courtroom Clerk no later than three (3) business days before trial. Counsel shall review all exhibits to eliminate duplication of submitted exhibits. b. Provide copies of exhibits for the Judge at the commencement of the trial. c. Counsel shall arrange with the Courtroom Clerk three (3) days in advance of trial for the use of computers, audio-visual equipment, or other visual aids sufficiently in advance so that they may be set up while Court is not in session. Counsel is responsible for the operation of all electronics and visual aids. The Courtroom Clerk is not responsible for the set-up, operation, and maintenance of presentations. d. All exhibits shall be shown to opposing counsel before being offered. e. If you intend to question a witness about a group of documents, make an attempt to have all of the documents in front of the witness when you start the examination. f. For civil cases, do not offer depositions wholesale; offer only relevant, redacted portions of the transcript and always in accordance with Rule 32 of the Federal Rules of Civil Procedure. Plaintiff will highlight in yellow those portions it wishers to offer. The Defense will highlight in blue those portions it wishes to offer. 7. Witnesses: a. Only one attorney for each party shall examine or cross-examine a witness. The attorney stating objections during direct examination shall be the attorney recognized for cross- examination. b. Refer to all persons, including witnesses, other counsel, and parties by their surnames and not by their first names. c. In examining a witness, counsel generally shall not repeat or echo the previous testimony or answers given by a witness. d. The examination and cross-examination of each witness shall be limited to questions addressed to the witness. Counsel shall refrain from making statements, comments, or remarks prior to asking a question or after a question has been answered. e. Counsel shall admonish all persons at counsel table that gestures, facial expressions, audible comments, or the like, as manifestations of approval or disapproval during the testimony of witnesses, or at any other time, are prohibited. 8. Objections are to be limited to stating, “Objection” and the basis for the objection (“Objection, leading”) or the number of the Federal Rules of Evidence relied upon (“Objection, Rule 403”). Do not explain or argue the grounds for objections in the presence of the jury unless asked to do so by the Judge. 9. Address all remarks to the Judge, not opposing counsel or parties. Do not make disparaging or acrimonious remarks toward opposing counsel, a party, or witness. 10. Gum chewing, snacks, drinks other than water, and the reading of newspapers or magazines are not permitted while Court is in session. 11. Cellular telephones and other noise-making electronic equipment must be turned to silent mode or turned off while in Court. Photographing, video recording, and audio recording are prohibited in the courtroom. 12. Counsel should try to anticipate problems that will arise during trial and take them up with the Court and opposing counsel out of the presence of the jury. Appropriate motion in limine in advance of trial are encouraged. If during trial it becomes necessary for an attorney to confer with the Court at the bench, the Court’s permission should be obtained. 13. Counsel shall not make motions (e.g., a motion for a mistrial) in the presence of the jury. Such matters may be raised at recess. 14. Offers of, or requests for, a stipulation should be made privately, not within the hearing of the jury. 15. Professionalism and civility are mandatory in this courtroom. This includes facial expressions, tones of voice, and mannerisms. 2

=== Waiver Appearance ===

INSTRUCTIONS for Motion for Court Acceptance of Waiver of Defendant’s Personal Appearance at Arraignment Pursuant to Fed. R. Crim. P. 10(b) File the document as a motion and follow usual motion protocols. These motions for waiver of appearance are disfavored for in custody defendants unless there are health matters or atypical circumstances that prevent the defendant’s appearance. For out of custody defendants, telephonic appearance in addition to the waiver will usually be required. If a financial affidavit would ordinarily be required at the time of the arraignment (such as an arraignment where the defendant appeared in another district that did not require a financial affidavit), then counsel should bring an executed financial affidavit to the arraignment. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, No. CR- v. x, Plaintiff, Defendant. MOTION FOR COURT ACCEPTANCE OF WAIVER OF DEFENDANT’S PERSONAL APPEARANCE AT ARRAIGNMENT PURSUANT TO FED.R.CRIM.P. 10(b) The Defendant in the above case represents and hereby agrees that: (1) The Defendant’s attorney has provided the Defendant a copy of the indictment; (2) The Defendant’s attorney has explained to the Defendant the nature of substance of the charge(s), the maximum penalties applicable to the charge(s), any forfeiture allegation, and Defendant’s constitutional rights; (3) The Defendant understands that the Defendant has a right to appear personally at the arraignment to be advised of the charge or charges against the Defendant and to be present when the pretrial motions deadline and trial date are set; (4) The Defendant authorizes the Defendant’s attorney to appear at the arraignment on behalf of the Defendant. The Defendant hereby authorizes the Defendant’s attorney at the arraignment to enter on the Defendant’s behalf a plea of a not guilty to all charges against the Defendant as well as a denial of any forfeiture allegations on behalf of Defendant. (5) Having conferred with the Defendant’s attorney of record, the Defendant hereby waives personal appearance and the reading of the indictment at the arraignment in this case. (6) The Defendant also hereby acknowledges that the Defendant is required to personally appear at the trial of this matter and that the Defendant is responsible to promptly obtain the trial date, time, and location from the Defendant’s attorney, including any updated trial date(s) as the case progresses. (7) The Defendant requests that the Court accept this Waiver of Personal Appearance at Arraignment. The Defendant acknowledges that until and unless the Court accepts this Waiver of Personal Appearance at Arraignment, the Defendant is required to personally appear at the arraignment. [(8) The Defendant is out of custody and will follow instructions of counsel for the Defendant’s telephonic appearance at the arraignment.] Therefore, the Defendant moves for this Court to accept this Waiver of Defendant’s Personal Appearance at Arraignment Pursuant to Fed. R. Crim. P. 10(b) Defendant’s full and true name is: _________________________________________ Date: , Defendant’s signature Date: , Signature of Attorney for Defendant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, No. CR- v. x, Plaintiff, ORDER Defendant. This matter is before the Court on the Defendant’s Motion for Waiver of Personal Appearance at Arraignment and Entry of Not Guilty Plea (Doc. x). The Court finds that the requirements of Fed. R. Crim. P. 10(b) have been met. [The Court will accept the waiver of indictment subject to requiring that the Defendant be telephonically present at the arraignment.] Accordingly, IT IS ORDERED granting the Defendant’s Motion for Waiver of Personal Appearance at Arraignment and Entry of Not Guilty Plea (Doc. x). IT IS FURTHER ORDERED accepting the Defendant’s Waiver of Personal Appearance at Arraignment. IT IS FURTHER ORDERED affirming the arraignment hearing currently set for xxxxxxxx a.m. at 401 W. Washington St, Phoenix, AZ 85003, before Judge xxxxx in courtroom xxxxx. Defendant’s counsel must appear at the Arraignment, at which time Defendant’s Not Guilty Plea(s) will be entered, and Defendant’s trial date will be set. [IT IS FURTHER ORDERED that the Defendant’s counsel shall facilitate the Defendant’s telephonic appearance at the arraignment and the Defendant shall follow instructions of counsel for the Defendant’s telephonic appearance at the arraignment.] The Court finds excludable delay under 18 U.S.C. § 3161(h)____ from ____ to ____. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 -