COUNSEL: PLEASE READ THIS TO SEE HOW TO CREATE THE BEST TRANSCRIPT POSSIBLE!; RULE 26(f) - CONFERENCE CHECKLIST FOR JUDGE FREUDENTHAL; DISCOVERY PROTOCOLS FOR EMPLOYMENT LAW CASES; FINAL PRETRIAL AND TRIAL POINTERS; GUIDELINES FOR PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR BENCH TRIALS

=== COUNSEL: PLEASE READ THIS TO SEE HOW TO CREATE THE BEST TRANSCRIPT POSSIBLE! ===

Creating the Best Record Possible Revised from a presentation by the District of Utah Court Reporters, October 2012 Creating the most accurate and complete record possible is part of an attorney’s obligation to the client. Federal Court Reporters serve as coaches to help provide the best permanent record of court events. An audio recording system does not alert you when the record is not clear. A court reporter exercises quality control at the moment the record is made. If the reporter cannot hear and understand, the jury and Judge cannot hear and understand. Before Trial or Hearing • Discuss all the points in this document with your witness and trial team. • Provide technical terms and names specific to the trial so the Court Reporter may add them to their dictionary. Witness lists, exhibit lists, and expert reports are also useful. • Prepare your witness to speak slowly and clearly. • Prearrange daily copy and/or realtime when desired. Reporters must make • arrangements in advance when special services are required. If you are appearing before a magistrate judge and know you will need a transcript, ask the courtroom deputy the week before the hearing to schedule a court reporter. While in Court • Speak directly into the microphone. Do not move a mounted microphone away from your mouth. Move unmounted microphones on the table as near to you as possible. • Stay near the podium microphone or use a lavaliere or hand mike. • Be precise when giving directions to a witness. “In the lower left hand corner” is easier to understand in a transcript than “over there.” Refer to exhibit numbers. • When the witness is at an easel, position the witness facing the reporter. • Remember that an interpreter needs to hear you speak. • Slow down, especially when reading printed material. • Don’t talk over your witness, opposing counsel or the Judge. • Don’t be a “mush mouth,” blurring words, and do not allow your voice to trail off at the end of questions or statements. • When the reporter says you speak “too fast,” this is not a compliment. • “Please repeat that” does not mean rephrase or explain; it means “Repeat exactly what you said because it was unclear and I want the record to be accurate.” • When making an objection, stand up to alert the reporter and the Judge. • Magistrate judge hearings may be electronically recorded. Speaking clearly and slowly during digital recording ensures a better transcript. Stay near the microphone. State your name at the start of the hearing so the transcriptionist can identify you. • Remember the five identifiers that require redaction. Transcript redactions are the responsibility of counsel and can be time-consuming. To avoid redaction, use the suggestions below. Unredacted transcripts are available under most circumstances to anyone who orders a public record of proceedings. Social Security numbers: last four digits only. Financial account numbers: last four digits only. Names of minor children: initials only. Dates of birth: year only. Home addresses: city and state only.

=== RULE 26(f) - CONFERENCE CHECKLIST FOR JUDGE FREUDENTHAL ===

RULE 26(f) CONFERENCE CHECKLIST FOR THE HONORABLE NANCY D. FREUDENTHAL Counsel shall be fully prepared to discuss in detail all aspects of discovery during the mandatory Rule 26(f) Conference. The subject matters to be discussed during the Rule 26(f) Conference shall include, but are not limited to, each topic in the form of joint case management plan available on Judge Freudenthal’s webpage and any additional topics identified in Rule 26(f) or Local Rule 26.1. The following checklist summarizes most of the topics but is provided for convenience only and current only as of the date noted in the margin. 1. 2. 3. 4. 5. 6. 7. 8. 9. Jurisdiction; Venue; Service of process; Consent to Magistrate Judge pursuant to Local Rule 73.1; Amendments to pleadings; Factual and legal contentions that each party believes are material to the case; Initial disclosures (self-executing routine discovery) pursuant to Local Rule 26.1; A proposed plan and schedule for discovery, including dates for completion of fact discovery and proposals for stipulations and agreement upon facts to avoid discovery; The names of all known witnesses to be called to testify at trial. Additional witnesses and summaries of testimony shall be supplemented as ascertained and finalized at the final pretrial conference; 10. Electronically stored data and information pursuant to Local Rule 26.1; 11. Formal written discovery – interrogatories, requests for production, requests for admission; 12. Identity and number of potential fact depositions; 13. Identity and number of potential trial depositions; Rule 26(f) Conference Checklist 1 August 2021 14. 15. Location of depositions, deposition schedules, deposition costs, utilization of depositions by electronic or other remote means; Identify the number and types of expert witnesses to be called to present testimony during trial (including the identity of treating physicians) (See Local Rule 26.1); 16. Need for any claw back agreement or Order under Fed. R. Evid. 502; 17. Discovery issues and potential disputes; 18. Protective orders; 19. Potential dispositive motions; 20. Proposed trial date; 21. Length of trial; 22. Settlement possibilities and a settlement discussion schedule. Rule 26(f) Conference Checklist 2 August 2021

=== FINAL PRETRIAL AND TRIAL POINTERS ===

FINAL PRETRIAL & TRIAL POINTERS Civil Cases Final Pretrial: The form for the joint final pretrial order can be found on the Court’s website. Separate submittals are not permitted. Please come prepared to address any remaining issues associated with the form of final pretrial order and pending motions. Please feel free to ask any follow-up questions concerning the information on this sheet. Please be ready to answer questions concerning the time requested for voir dire, opening statements, and closing arguments. Please be ready to answer questions concerning whether there are any objections to jurors taking notes during the course of trial, and whether jurors should be permitted to ask questions. Be prepared to justify any request that a witness be permitted to step off the witness box for demonstrations or otherwise. Also, please be prepared to justify any request for counsel to use a lavaliere or portable microphone. Please be prepared to discuss witness needs or issues (such as travel complications, any need to take a witness out of order, disability accommodations, requests for remote testimony, or issues with deposition designations). Please be prepared to discuss any request that witnesses be sequestered. Please be prepared to discuss progress with settlement. Jury Selection: For civil cases, the Court typically seats 14 prospective jurors for voir dire, unless the length of case suggests more, which, after peremptory strikes, will result in 8 jurors to try the case. There are no alternates. • Do not refer to jurors by name – use the jurors’ assigned numbers only. • The Court typically allows 15 minutes for attorney-conducted voir dire. Attorneys may use the small podium to face the jury. Please don’t argue the case or provide a mini- opening statement. Don’t offer hypothetical questions which seek to bind any prospective juror to agree with your client’s position or theory of the case. If the Court has addressed issues of hardship with potential jurors, please do not address these issues again. • For Cause Challenges – these are all determined by the Court with input from counsel at sidebar. If there are no cause challenges, please articulate “pass for cause” to avoid unnecessary side bars. Please don’t articulate a cause challenge before the jury. Trial Days/Hours: 8:30 – 5:00 with a morning break, lunch recess (approximately 1 hour 10 minutes to 1 ½ hours) and an afternoon break. Opening Statements: Typically, 30 minutes is afforded per side unless the Court allows additional time. 1 Evidence Presentation: • Re-read U.S.D.C.L.R. 84.1(a) on courtroom decorum • Stand to object • If the trial is estimated to take more than two weeks, the Court may photograph witnesses and prepare a book for the jurors to review, which provides the photos and names of witnesses. • Exhibit notebooks are not given to jurors. The Court instead uses an electronic system for submission of exhibits to jurors (JERS), as described in the Court’s form of initial pretrial and final pretrial orders. • At least one week prior to trial, all parties must provide to the court reporter ([email protected]) a list of names for all anticipated witnesses, and keyword indices to include technical terminology, proper names, acronyms, and case citations. The court reporter will maintain the confidentiality of the submittal so as not to reveal trial strategies. • Do not greet witnesses on their way to the witness stand; do not use first names. • Request permission to approach witness box, at least for anything beyond just handing exhibits to witnesses. • Stay at the main podium unless the Court gives you permission to approach; do not address the jury, address the witness; request prior permission to use a lavaliere or portable microphone. • Be cognizant of the use of hearing devices by our jurors. If we have one or more jurors utilizing the hearing assistance devices offered to them by our Courtroom Deputy, these devices get their feed directly from the microphone system in the courtroom so counsel should make sure they mute their microphones at counsel table if having discussion(s) with their co-counsel or client. Muting the microphones will eliminate the possibility that discussion(s) that would normally be inaudible to the jury being directly fed into their hearing devices. • In making objections and responding to objections to evidence, counsel must state the legal grounds for their objections with reference to the specific rule of evidence upon which they rely. For example, “Objection . . . irrelevant and inadmissible under Rule 402” or “Objection . . . hearsay and inadmissible under Rule 802.” Speaking objections which suggest the answer to the witness are objectionable. • Address all remarks to the Court, not to opposing counsel. Do not make disparaging or acrimonious remarks toward opposing counsel or witnesses. Counsel must instruct all persons at counsel table that gestures, facial expressions, audible comments, or any other 2 manifestations of approval or disapproval during the testimony of witnesses, or at any other time, are absolutely prohibited. • Only one attorney for each party shall examine, or cross-examine, each witness. The attorney stating objections during direct examination shall be the attorney recognized for cross-examination and the attorney recognized at side bar. • Please review the guidelines for “Creating the Best Transcript Possible” with your entire trial team and witnesses before trial. This is available here: https://www.wyd.uscourts.gov/sites/wyd/files/Creating_the_Best_Transcript_Possiblejbd. pdf • If you desire an attorney room within the courthouse, wish to test technology or Realtime, or otherwise familiarize yourself or witnesses with the courtroom for trial, please contact the Courtroom Deputy Abby Logan at least two weeks in advance of the trial date to check availability and to reserve the room or courtroom. • Avoid repeated, time-consuming side-bar conferences if at all possible; anticipate problems and address them with the Court before the jury arrives, or during regular breaks. • Judge Freudenthal does not admit expert reports into evidence. They are hearsay and usually duplicative of trial testimony. The Judge also does not admit charts or summaries done by an attorney to capture a witness’ testimony unless the witness endorses the chart and there is a basis for admitting evidence that may duplicate trial testimony. • “Demonstrative exhibits” cannot be used to get inadmissible information (like hearsay) before the jury. • During jury deliberations, be available to return to court within 15 minutes or so. Counsel will be expected to provide two phone numbers for contact purposes to Abby Logan, the Courtroom Deputy. • Privacy and Redaction Policy – counsel should be proactive in redacting from exhibits and avoiding testimony of the following: SS#’s, tax id #’s, financial account #’s (each of these should limit the number to the last four digits), names of minor children (use only initials), dates of birth (limit to year), and in criminal cases, the street addresses of witnesses, victims, parties, jurors and others (use only city and state). • Use of wireless devices – see Court’s General Order. • Counsel must inform the other party of the next day’s witnesses. Counsel must provide each other, the Courtroom Deputy, and the Court Reporter with a list of exhibits to be used with each witness every morning of trial. Failure to provide these lists may result in a fine. 3 • The following shall not be said to the jury at any time during the course of the case: o The Golden Rule (including so-called “reptilian brain” arguments) – improper appeal to sympathy, or fear that occurs when an attorney asks the jurors to place themselves “in the shoes of” the client. o Any statement of personal knowledge or opinion on the evidence, culpability, credibility of a witness, or justness of the cause. o Any blatant appeals to decide the case on sympathy, prejudice or bias, which would include comments about the relative size or wealth of a party or its (in)ability to pay damages. o Unjustified comments on the other side. Along this line, I consider it a violation to characterize the defense position as one of calling the plaintiff a “liar, cheat and fraud” unless the evidence supports such a comment. o In short, if what you are saying has nothing to do with the merits of the case, then you are treading on thin ice. Address technology training, testing or issues with the Courtroom Deputy ahead of trial. Also, at any time up to and including trial break periods, the Courtroom Deputy may request that special equipment used by counsel be tested in order to troubleshoot potential problems and avoid inefficiency and delays. 4

=== GUIDELINES FOR PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR BENCH TRIALS ===

JUDGE FREUDENTHAL’S GUIDELINES FOR PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR BENCH TRIALS (a) Each side shall serve and file proposed findings and conclusions that shall include: (1) A narrative statement of all facts proposed for the Court’s order resolving the trial; and (2) A concise statement of all legal conclusions proposed for the Court’s order, with authorities in support. (b) Each side’s statement of facts shall: (1) Be stated in simple declarative sentences; (2) Be based on the evidence expected to be presented at trial; (3) Be complete in itself and shall contain no recitation of any witness’ testimony or what any party stated or admitted in these or other proceedings, and no references to the pleadings or other filings. The statement of facts may contain references in parentheses to the names of witnesses, depositions, pleadings, exhibits or other documents on which a particular sentence is based; (4) So far as possible, contain no pejoratives, labels or legal conclusions. (c) Each side’s statement of legal conclusions shall: (1) Set forth all legal contentions necessary to support the claims and defenses expected to be pursued at trial; (2) Shall be clearly and concisely stated in separately numbered paragraphs. (3) Each paragraph shall be followed by citations of authorities in support thereof. 1