Courtroom Proceedings; General Procedures; Guidelines for Proposed Protective Orders; Dress Code; PDF; PDF; PDF; PDF

=== Courtroom Proceedings ===

1. 2. 3. 4. 5. 6. 7. 8. 9. Judge Rozzoni Courtroom Proceedings Counsel and parties should be seated at counsel table ready to proceed no less than five minutes before the Court's scheduled starting time. On trailing calendar proceedings, including all preliminary criminal proceedings, special requests to advance or delay appearance times because of counsel’s scheduling conflicts may be presented to the Court’s courtroom deputy. Please determine well in advance of trial if there is a need for court interpreters for civil cases. Supervisory Court Interpreter Melinda Gonzalez-Hibner at 505-348-2092 may be able to assist counsel in locating qualified interpreters for civil proceedings. In all criminal cases, the Court will supply certified interpreters. Notify the Court at least two weeks in advance of trial if you need audio-visual or other special equipment. You are responsible for operating the equipment. Please visit www.nmd.uscourts.gov/courtroom-technology for more information. For training on use of the equipment, please contact Courtroom Deputy Carla Lopez at 505-348-2021 and schedule training at least two weeks before trial. Gum chewing is not permitted in court. Counsel should ensure that all parties, witnesses, as well as any friends, family, or courtroom observers properly dispose of gum in appropriate receptacles prior to entering the courtroom. All cell phones and pagers must be turned off so as not to disrupt court proceedings. Counsel should advise their clients and witnesses to turn off pagers and cell phones. Stand when addressing the court, as well as when the jury enters or leaves the courtroom. Do not refer to any party or attorney by their first name. Always use surnames. Do not argue with opposing counsel in the presence of the jury. Counsel should question witnesses from the podium and approach the witness or jury box only with the Court’s permission. Speaking objections are prohibited. Counsel should simply state the objection and the basis for the objection without argument, i.e., “Objection. Hearsay,” or “Objection. Leading.” Opposing counsel should not respond to objections unless the Court specifically requests a response.

=== General Procedures ===

JUDGE ROZZONI’S GENERAL PROCEDURES A. General Matters 1. If materials in a civil case must be sent to the Court for any reason, they should be sent electronically to [email protected] or by mail to: Judge Jennifer M. Rozzoni, United States District Court, Pete V. Domenici United States Courthouse, 333 Lomas Blvd. NW, Suite 620, Albuquerque, New Mexico, 87102. Please do not send facsimiles. Opposing counsel must be copied on all written or e-mail communications that counsel conducts with the Court with the exception of the confidential letter (and associated materials) sent in anticipation of a settlement conference. 2. Proposed orders must be sent to [email protected] after the filing of any unopposed motion. They should be submitted in Microsoft Word format (as .docx files), have 1” margins, be non-justified, and use Times New Roman font, size 12. In civil cases, the case number should be presented as follows: ###-cv-### [Presiding Judge initials] - [Referral Judge initials]. Further, the proposed order should indicate the approval of all parties by including the electronic signature of all parties at the end of the document. 3. Parties must clearly label all exhibits attached to a filing on CM/ECF. For example, rather than merely labeling an exhibit “Exhibit A,” parties must provide additional description, such as “Exhibit A: Deposition of Plaintiff Jones,” or “Exhibit A: Defendant Smith’s Responses to Interrogatories.” 4. For telephonic conferences or hearings, counsel must call into the conference line no later than five (5) minutes before the conference or hearing begins. Unless otherwise stated, counsel shall call my toll-free conference line at 1-855-244-8681 and enter Access Code 2315 404 2333# to be joined to the proceedings. When prompted for an Attendee ID number, press #. Please note that there may be a period of minutes before you are prompted for an Attendee ID number. 5. The Court is unable to provide interpreters for any civil matters, including settlement conferences. If a participant requires an interpreter, counsel must ensure one is present. B. Discovery Disputes 1. Judge Rozzoni is available to resolve discovery disputes informally, including resolution of problems occurring during a deposition. 2. Informal matters should be of a narrow or discrete nature, e.g. instructing a witness not to answer, protective orders, scheduled depositions, or production of files and documents. Requests to compel particular responses to a number of interrogatories cannot be resolved in a telephone conference. 3. Counsel must have attempted to resolve the dispute themselves by discussing the matter either by telephone or in person. Such discussion requires that the parties converse, confer, compare views, consult, deliberate, or in good faith attempt to do so. An e-mail or 1 letter exchange is not sufficient. 4. If the parties’ discussion does not resolve a dispute, counsel may email chambers at [email protected] to coordinate a telephonic discovery conference with the judge. All parties must agree to an informal discovery conference before any one counsel contacts chambers for an appointment. When emailing, counsel should give a brief joint summary of the issue, provide times of availability for all interested counsel, and ensure that all interested counsel are copied on the email. Written requests for a telephonic discovery conference should not be used as an opportunity to chastise or criticize opposing counsel. The Court will typically rule on the discovery disputes at the conference after hearing counsel’s arguments and will enter a written order regarding the same. C. Consent to Proceed Before a Magistrate Judge as the Presiding Judge 1. Counsel are reminded that when Judge Rozzoni is assigned as the discovery/referral judge, the parties may consent to her presiding over the case pursuant to Local Rule 73.2. Should the parties wish to do so, they must fill out Form AO 85 – “Notice, Consent, and Reference of a Civil Action to a Magistrate Judge.” The form, once signed by all parties, should be submitted to the assigned district judge’s proposed text email for approval. A link to the consent form is provided on Judge Rozzoni’s webpage within the “Resources” tab and through the “Court Forms” link under “National Forms” then “Notice, Consent, and Reference of a Civil Action to a Magistrate Judge.” 2

=== Guidelines for Proposed Protective Orders ===

GUIDELINES FOR PROPOSED PROTECTIVE ORDERS SUBMITTED TO JUDGE ROZZONI I. Procedure for Requesting Entry of a Protective Order A. Stipulated Protective Orders In certain cases, the parties may agree that discovery should be governed by a protective order limiting the disclosure, use, and dissemination of confidential information. If all the parties agree concerning the need for a protective order and its scope and form, their counsel should file a stipulated motion for protective order with the proposed protective order attached as an exhibit to the motion. The parties must also e-mail a copy of their proposed protective order (in Word format) to [email protected]. If the proposed protective order is appropriate, the Court will sign and enter it. If it is not appropriate, the Court will, in its discretion, deny the motion, notify counsel of any objectionable language or provisions, or modify and enter a revised protective order. B. Opposed Protective Orders If the parties disagree concerning the need for a protective order and/or its scope or form, the party or parties seeking such an order should file an opposed motion for protective order with the proposed protective order attached as an exhibit to the motion. Where there is an objection to the scope or form of a proposed order, the party or parties opposing the motion shall, in their written response to the motion, provide the Court with proposed language that would resolve their specific objections to the order’s scope or form. 1 II. Judge Rozzoni’s Guidelines for Proposed Protective Orders The following guidelines have been developed to assist the parties in drafting stipulated protective orders. A. Recitation of Facts Showing Good Cause Under Fed. R. Civ. P. 26(c) Any proposed protective order must include a concise, but sufficiently specific recitation of the particular facts that, according to the parties, provide the Court with an adequate basis to find good cause to issue the order pursuant to Federal Rule of Civil Procedure 26(c). B. Scope of the Protective Order The scope of the protective order must be narrowly tailored and specific. It should include a clear and precise description of the categories of documents, information, items, or materials (including electronically created or stored information) that are subject to the protective order, such as “medical records,” “personnel files,” or “tax returns.” Categories such as “all documents a party designates as confidential” or “all business records” are vague and overbroad. The protective order should clearly reflect that its provisions only apply to the named categories of documents, information, items, or materials specifically set forth in the protective order. The protective order should explicitly exempt information or documents that are available to the public or have not previously been kept in a confidential manner. C. Provisions for Filing Documents Containing Confidential Information Under Seal The protective order should not contain a blanket provision that requires or allows the parties to file documents containing confidential information under seal without the Court’s approval. As a public forum, the Court’s policy is to provide the public with access to filed documents to the fullest extent possible consistent with the law and the parties’ rights to confidentiality and privacy. Where the sealing of documents is not explicitly mandated by law 2 or regulation (e.g., False Claims Act complaints), a document will only be sealed if the Court finds that there is good cause to withhold the specific document in question from the public by sealing it. The mere designation of information as confidential pursuant to a protective order may not be sufficient to satisfy the Court’s requirements for filing under seal in light of the public’s presumptive right of access to the Court’s dockets. Rather, where a document containing information subject to a protective order is included in a pleading filed with the Court, the party filing such pleading should also file a motion to seal the document. In accordance with this policy, a proposed protective order must include the following acknowledgement: The parties acknowledge that this Order does not entitle them to seal all confidential information filed with the Court. In general, before filing a motion for leave to seal a document filed with the Court, the parties should consider other steps to prevent the unnecessary disclosure of confidential information in court filings, such as redacting confidential information from the document to be filed. If the parties wish to include a provision for filing confidential materials under seal in the proposed protective order, the following language is generally acceptable: In the event a party seeks to file any document containing Confidential Information subject to protection under this Order with the Court, that party must take appropriate action to ensure that the document receives proper protection from public disclosure, including: (a) filing a redacted document with the consent of the party who designated the document as confidential; (b) where appropriate (e.g., in relation to discovery and evidentiary motions), submitting the document solely for in camera review; or (c) when the preceding measures are inadequate, seeking leave to file the document or portions thereof under seal by filing a written motion for leave to file under seal. The submitting party may file a document designated as confidential under this Order as a separate sealed exhibit before a sealing order is obtained. However, contemporaneously with that filing, the party must file a motion for leave to file the document under seal, identifying the party that has designated the material as confidential (“the designating party”). If the party filing the document containing confidential information is the designating party, the motion for leave to file under seal should include a declaration identifying the confidential information contained in the document and explaining why the document is sealable. If the party filing the document is not the designating party, the 3 designating party must file a declaration identifying the confidential information contained in the document and stating whether the designated material is sealable, and if so why, within fourteen days of the filing of the motion to file under seal. If the designating party does not file a responsive declaration within the fourteen-day time period, the submitting party may file the document in the public record no earlier than four days, and no later than ten days, after the motion is denied. D. Introduction of Documents Containing Confidential Information into Evidence The protective order should not attempt to limit the Court’s judgment or discretion in any way regarding the treatment, handling, or admission of documents containing confidential information at a hearing or trial. If the parties wish to include a provision regarding the use of documents containing confidential information at hearings and trial, the following language would generally be acceptable: The terms of this protective order do not preclude, limit, restrict, or otherwise apply to the use of documents at court proceedings. Subject to the Federal Rules of Evidence, a confidential document may be offered into evidence at trial or any court hearing, provided that the proponent of the evidence gives advance notice of the intended use of the confidential document to opposing counsel as may be required by a scheduling or other order. Any party may move the Court for an order that the confidential document be received in camera or under other conditions to prevent unnecessary disclosure. The Court will then determine whether the proffered evidence should continue to be treated as a confidential document and, if so, what protection(s) may be afforded to such information at the trial or hearing. E. Application to Non-Parties The protective order should refrain from stating that it is binding on non-parties or that the Court has jurisdiction over non-parties to enforce the protective order’s provisions. The Court will not order a non-party to consent to the Court’s jurisdiction or to abide by the protective order’s terms. The parties may attach a form agreement to the proposed protective order, and a non-party may agree to be bound by the terms of the protective order by signing the agreement. The protective order may include provisions that protect confidential information, documents, and materials produced by a non-party or parties who are later added to the action. 4 Any new party to the lawsuit must be given the opportunity to review the protective order and decide whether to stipulate to or contest it. F. Jurisdiction Ordinarily the Court’s jurisdiction, including jurisdiction to enforce a protective order, terminates upon final disposition of the case. While the protective order should not state that the Court has continuing jurisdiction over the protective order, if the parties agree to be bound by its terms after the litigation ends, the protective order may appropriately state that its provisions will continue in force after the litigation terminates. If the protective order includes such a provision, the parties may also include a provision allowing a party to seek leave to reopen the case to enforce the protective order’s provisions. G. Instructions to the Clerk of the Court The protective order should not direct the Clerk of the Court to return or destroy confidential documents that are filed in the case. H. Court Personnel and Jurors The protective order should neither state nor imply that it is binding on court personnel or jurors. If the protective order would otherwise leave room for interpretation as to this point, it should explicitly provide an exception for court personnel and jurors. 5

=== Dress Code ===

Judge Rozzoni Dress Code Please note that this dress code is applicable to all attorneys, witnesses, jurors, agents, and courtroom spectators. To maintain the dignity of the Court, the Court requests that the following list of minimum standards regarding appropriate dress be met before entering the courtroom: 1. Attorneys appearing before the Court should wear suits or similar appropriate courtroom attire. 2. Adults other than attorneys should wear long pants and a collared shirt, blouse, or sweater, or a dress or skirt, as appropriate. (Jeans are acceptable.) 3. All adults must wear shoes in the courtroom. (Thong or flip-flop sandals are not acceptable.) 4. Shorts, T-shirts, revealing and/or ripped clothing are not acceptable. (Anything that reveals the midriff or underclothing is not acceptable.) 5. Hats or caps must be removed while in the courtroom. 6. The Court will permit more leeway with children in the courtroom, but in general, adults accompanying children should ensure that each child’s dress is appropriate, and that it conforms as closely as possible to the guidelines applicable to adults. Deviations from the above standards by lay persons (other than those who are in custody at the time of the proceeding) should be brought to the attention of court personnel and approved by the Court prior to entering the courtroom.

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PREPARATION FOR TRIAL BEFORE THE HONORABLE JENNIFER M. ROZZONI Trial Counsel, your compliance with the following is required. While detailed adherence will ensure a more organized and streamlined trial, a checklist at the end of this document summarizes the requirements. A. GENERAL TRIAL PREPARATION 1. Be on time for each court session. Trial engagements take precedence over any other business. If you have matters in other courtrooms, make other arrangements in advance for handling these matters. 2. A multi-day trial will recess at about 5:00 p.m. each day. 3. No recess to locate a missing witness will be allowed unless the witness has been timely subpoenaed. Clients and witnesses must be on time. 4. 5. Stand when you speak, as well as when the jury enters or leaves the courtroom. Do not refer to any party or attorney by his or her first name. Always use surnames. Do not argue with opposing counsel in the presence of the jury. In opening statement, present a concise summary of the facts. Do not argue the facts or discuss law. Do not describe in detail what particular witnesses will say. The time for opening statement will be limited. 6. When you object in the presence of the jury, make it short and to the point. Speaking objections will not be allowed. Cite the Rule of Evidence or common designation for your objection (e.g., “hearsay”). Do not argue the merits of your objection in the presence of the jury. Do not argue the ruling in the presence of the jury. 7. Counsel should question witnesses from the podium and approach the witness or jury box only with the Court’s permission. 8. Notify the Court at least two weeks in advance of trial if you need audio-visual or other special equipment. You are responsible for operating the equipment. Please visit www.nmd.uscourts.gov/courtroom-technology for more information. For training on use of the equipment, please contact Courtroom Deputy Carla Lopez at 505-348-2021 and schedule training at least two weeks before trial. 9. Throughout these instructions, the term “trial” refers to the initial jury selection date. Counsel must seek leave of the Court in the form of a written motion to extend any pretrial deadline. 10. Where a submission deadline falls on a weekend or holiday, the deadline becomes the next working day after the weekend or holiday. 1 Exhibits 1. TWENTY-ONE (21) calendar days before the pretrial conference, counsel for each party will exchange exhibits and proposed exhibit lists, provide hard copies of exhibits to the Court pursuant to these instructions, and file the proposed exhibit lists with the Court. TO MAINTAIN EFFICIENCY AND ORGANIZATION OF THE COURT’S RECORD OF TRIAL EXHIBITS, PARTIES WILL USE THE FORMAT ATTACHED ON THE COURT’S WEBSITE UNDER THE PROCEDURES TAB. Charts, plats, diagrams, etc. should be marked and ready as to measurements, landmarks, and other identifying factual material before the pretrial conference. 2. The Court strongly encourages counsel to stipulate to the admissibility of exhibits wherever possible, particularly regarding their authenticity. FOURTEEN (14) calendar days before the pretrial conference, the parties, together, must file a consolidated exhibit list identifying all exhibits that the parties have stipulated are admissible. 3. Mark exhibits for identification prior to the pretrial conference (Plaintiff’s on yellow labels by numbers and Defendant’s on blue labels by letters, e.g., A, B, C, . . . AA, AB, AC, . . . ). The identification number or letter will remain the same whether the exhibit is admitted or not. 4. 5. 1. The Court requires parties to use courtroom technology to display exhibits to the jurors, if possible. However, each party must provide exhibit binder(s) and an electronic copy of exhibits to the Court TWENTY-ONE (21) calendar days before the pretrial conference. FOURTEEN (14) calendar days before the pretrial conference, counsel for each party will file with the Clerk a complete list of all objections to the exhibits offered by the other party, specifying the Rule of Evidence or other legal authority upon which an objection is based. Witnesses Furnish a complete list of witnesses in the order to be called to opposing counsel and file with the Court no later than TWENTY-ONE (21) calendar days before the pretrial conference, in conformance with the Proposed Pretrial Order. This list must include the name of any witness whose testimony will be presented by deposition and must indicate that the testimony will be by deposition. 2. Clients and witnesses must be on time, and counsel always should have witnesses available to fill a full trial day (i.e., 9:00 a.m. to 5:00 p.m.). The Court may penalize counsel who do not have a witness available to testify. 2 3. Counsel must exchange all expert reports in advance in accordance with Rule 26(a)(2) of the Federal Rules of Civil Procedure. As in other areas, the Court will not permit cumulative expert testimony. Parties must file any Daubert motions no later than the date designated as the dispositive motions deadline. Depositions 1. Consistent with the Federal Rules of Civil Procedure, the parties may introduce depositions into evidence. The parties must provide designations of deposition testimony to be read at trial to opposing counsel and provide a copy to the Court no later than TWENTY-ONE (21) calendar days before the pretrial conference, together with the parties’ witness lists. 2. Objections to the use of deposition testimony are due FOURTEEN (14) calendar days before the pretrial conference. The parties must confer about any disputes and, if unable to resolve their differences, must notify the Court in writing at least SEVEN (7) calendar days before the pretrial conference. 3. If a deposition is used in part, counsel will mark the parts to be used for opposing counsel. The parties also should mark the Court’s copy. Plaintiff will use yellow highlighting and Defendant will use blue highlighting. This does not apply to cross- examination or rebuttal. 4. Counsel may not simply read the deposition transcript at trial. Counsel must provide a person to assist in reading the deposition transcript on the witness stand. Memoranda of Law The parties may file, but are not required to file, trial briefs outlining the basic legal theories, anticipated evidence in support of such theories, and the legal basis of any anticipated evidentiary disputes at least SEVEN (7) calendar days before the pretrial conference. The Court will not accept trial briefs filed less than seven days before the pretrial conference. Non-Jury Trials: Proposed Findings of Fact and Conclusions of Law The parties must file proposed Findings of Fact and Conclusions of Law at least FOURTEEN (14) calendar days before the pretrial conference, with references to exhibits and expected testimony. Jury Trials 1. JURY INSTRUCTIONS: Jury instructions will be submitted to the Court FOURTEEN (14) days before the pretrial conference in accordance with the section below entitled “Preparation of Jury Instructions.” 3 2. JOINT STATEMENT OF THE CASE: The parties must confer and submit a brief joint statement of the case FOURTEEN (14) calendar days before the pretrial conference that will be read to the jury panel during jury selection. If the parties are unable to agree to a joint statement of the case, each party must submit a separate statement of the case. The parties must file the joint statement of the case on the docket and submit it to the Court in Microsoft Word format at [email protected]. 3. VOIR DIRE: The Court will conduct the initial voir dire of the panel before counsel will be allowed to conduct voir dire. The Court’s standard voir dire is available on the chambers’ web page at https://www.nmd.uscourts.gov/content/judge-jennifer-m- rozzoni under “Procedures for Civil Consent Cases” tab. Counsel should review the Court’s voir dire prior to the pretrial conference and will have an opportunity to object to the Court’s voir dire at the pretrial conference. In the average case, each party will be permitted TWENTY (20) minutes to voir dire the venire panel. Do not argue the case or cite legal principles in your voir dire. Requested voir dire will be exchanged between counsel and filed with the Clerk’s Office at least FOURTEEN (14) calendar days before the pretrial conference. If counsel cannot agree on proposed voir dire, any objections must be brought to the Court’s attention at least SEVEN (7) calendar days prior to the pretrial conference. 4. MOTIONS IN LIMINE: Motions in limine will be filed no later than TWENTY-ONE (21) calendar days before the pretrial conference for ruling. Responses are due FOURTEEN (14) calendar days before the pretrial conference. If a motion in limine is filed at least TWENTY-EIGHT (28) days before the pretrial conference, the response is due FOURTEEN (14) days after the motion is served. Replies to motions in limine will not be entertained unless specifically requested and allowed. B. PREPARATION OF JURY INSTRUCTIONS Prepare your proposed jury instructions in accordance with these directions. File the proposed jury instructions with citations with the Clerk’s office in accordance with D.N.M. LR-Civ. 5.1 at least FOURTEEN (14) calendar days before the pretrial conference. 1. 2. Parties will meet and confer in advance of the deadline to agree on as many instructions as possible. Parties will file a mutually acceptable set of jury instructions on the substantive claims, as well as any other instructions the parties feel are necessary that are NOT contained in the Court’s stock instructions. The agreed upon instructions should be numbered and annotated. If the parties are unable to agree on instructions, they should be prepared to file a legal basis for their objection(s) to each instruction on which they do not agree. To the extent the parties cannot agree, plaintiff and defendant will each file a numbered, annotated set of requested jury instructions to which the other party does not agree at least FOURTEEN (14) calendar days before the pretrial conference. The parties need not submit a “clean” set of jury instructions without annotations and citations. 4 3. Parties will file written objections to opposing party’s submitted instructions THREE (3) working days after jury instructions are due. 4. A proposed verdict form should be filed at the same time as the jury instructions and may be filed together with the jury instructions. As with the jury instructions, the parties will meet and confer to reach a mutually agreeable verdict form or be prepared to file a legal basis for their objection to the opposing party’s proposed verdict form. To the extent the parties cannot agree, each party shall submit its own version of the proposed verdict form. 5. IN ADDITION TO ELECTRONICALLY FILING THEIR SUBMISSIONS REGARDING JURY INSTRUCTIONS, plaintiff and defendant will submit the requested jury instructions (including the stipulated instructions) and proposed verdict forms to the Court’s email address ([email protected]) in Microsoft Word format. 6. Submit no more than one instruction per page. Each jury instruction should be numbered at the top of the page. 7. Carefully proofread each instruction for errors in spelling, grammar, punctuation, and citations, and for unintended deviations from pattern instructions used as sources. 8. 9. Submit a cover sheet on all sets of instructions identifying that set of instructions. For example, “Plaintiff’s Proposed Jury Instructions” or “Stipulated Jury Instructions.” PARTIES SHOULD NOT SUBMIT STOCK INSTRUCTIONS. Instead, refer to the Court’s approved set of stock instructions, available on the chambers’ web page at https://www.nmd.uscourts.gov/content/judge-jennifer-m-rozzoni under the “Procedures for Civil Consent Cases” tab. Parties should include a separate page with a list of requested stock instructions as each is described on the website. If a party wishes to modify or change a stock instruction, please note the modification or change in the list and it will be addressed at the pretrial conference. 5 TRIAL DEADLINES - CHECKLIST 21 calendar days before the pretrial conference Exchange exhibits and proposed exhibit lists, provide exhibit binders and electronic copies of exhibits to the Court, and file proposed exhibit lists. Exchange complete list of witnesses in the order to be called and file copy with the Court. List should include witnesses testifying by deposition. Exchange depositions to be used at trial and provide copies to the Court. File motions in limine. 14 calendar days before the pretrial conference File joint list of the exhibits that the parties stipulate are admissible. File complete list of objections to exhibits offered, specifying Rule of Evidence or other legal authority on which each objection is based. File any objections to the opposing party’s proposed use of deposition testimony. File mutually agreeable Joint Statement of the Case and submit in Word format to [email protected]. For non-jury trials, file proposed Findings of Fact and Conclusions of Law, with references to exhibits and expected testimony. File proposed jury instructions, with annotations, and proposed verdict form, in accordance with section entitled “Preparation of Jury Instructions” within Judge Rozzoni’s trial preparation materials. Jury instructions also should be submitted to [email protected]. Written objections to submitted jury instructions are due THREE (3) working days after jury instructions are due. File responses to any motions in limine. Replies will not be entertained unless specifically requested and allowed. Exchange proposed voir dire with counsel and file same with the Court.  Notify the Court if you need audio-visual or other special equipment. 7 calendar days before the pretrial conference Notify the Court of any continuing disputes regarding the use of deposition testimony. File Memoranda of Law (optional). Notify the Court of any continuing disputes regarding voir dire. 6

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PRELIMINARY INSTRUCTIONS Members of the Jury: Now that you have been sworn, I will give you some preliminary instructions to guide you during this trial. You are the judges of the facts. It will be your duty to find from the evidence what the facts are. You will then apply the law to the facts. I will instruct you on the applicable law later. You must follow that law whether you agree with it or not. Nothing that I say or do is intended to indicate what your verdict should be. The evidence from which you will find the facts will consist of the testimony of witnesses, documents, and other things received as exhibits, and any facts that the lawyers agree to, or that I instruct you to find. Certain things are not evidence and must not be considered by you. 1. 2. Statements, arguments, and questions by lawyers are not evidence. Objections to questions are not evidence. Lawyers have an obligation to their clients to object when they believe evidence being offered is improper under the Rules of Evidence. You should not be influenced by the objection or by my ruling on it. If the objection is sustained, ignore the question. If I instruct you that some item of evidence is received for a limited purpose only, you must follow that instruction. 3. Testimony that I have excluded or tell you to disregard is not evidence and must not be considered. 4. Anything that you may have seen or heard outside the courtroom is not evidence and must be disregarded. You are to decide the case solely on the evidence presented here in court. 1 It will be up to you to decide which witnesses to believe, which witnesses not to believe, and how much of any witness’s testimony to accept or reject. When determining the weight to be given to the testimony of a witness, you may consider his/her interest, if any, in the outcome of the case; his/her relationship to the parties; his/her manner while testifying; any bias or prejudice the witness may have; and whether the testimony of the witness was impeached by prior statements he/she made or by other evidence. This is a civil case. The Plaintiff has the burden of proving his/her case by a preponderance of the evidence. This means that the Plaintiff has to produce evidence which, considered in light of all the facts, leads you to believe that the Plaintiff’s claims are more likely true than not true. During trial it may be necessary for me to talk with the lawyers out of the hearing of the Jury, either by having a bench conference here while the Jury is present in the courtroom, or by calling a recess. The purpose of these conferences is to decide how certain evidence is to be treated under the Rules of Evidence and to avoid confusion and error. During this trial and until you have rendered a verdict, do not discuss this case with anyone or permit anyone to discuss it with you or in your presence. This rule about not discussing the case includes discussions even with your family or friends. This rule also includes electronic communication. You may not communicate with anyone about the case on your cell phone, through e-mail, text messaging, or through any blog or website or chat room, or by way of any other social networking websites, including Facebook, Instagram, LinkedIn, and X (formerly known as Twitter). If any person attempts to talk to you or communicate with you about this case, either in or out of the courthouse, you should immediately report that attempt to me. The attorneys and parties are not supposed to talk to jurors, even to say “hello.” So, if you happen to see them outside the courtroom, they will not speak to you. Please do not be offended by this. 2 They will only be acting in accordance with my instructions. Until you retire at the end of the case to begin your deliberations, do not talk about this case with each other. You may not consider anything you may have read or heard about this case outside the courtroom. During trial, you must avoid news accounts about this case, whether it is on television, the radio, or the internet, or is in the newspaper. If you happen to see or hear any news about this trial, please let a member of my staff know. Please do not attempt any tests, research, or experiments, and do not visit any location involved in this case. It would be difficult or impossible to duplicate conditions shown by the evidence; therefore, your results would not be reliable. Such conduct would also run contrary to the rule that your verdict must be based solely on the evidence presented to you in court. You also must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Nevertheless, in your deliberations, you need not ignore your backgrounds, including professional, vocational, and educational experience. Please keep an open mind until the entire case has been completed and submitted to you. Your special responsibility as jurors requires that throughout this trial you exercise your judgment impartially and without regard to any sympathy, bias, or prejudice. If you wish, you may take notes. Pencils and tablets have been provided for you. If you take notes, please leave them in the jury room when you leave at night. The notes are for your own personal use—they are not to be read or given to anyone else before or during deliberations. Even though the court reporter is making a record of these proceedings, a copy of the transcript 3 will not be available for your use during deliberations. The exhibits will be available to you during your deliberations. Ordinarily the lawyers will develop all relevant evidence that is necessary for you to reach your verdict. In rare situations, a juror may believe a question is critical to reaching a decision on a necessary element of the case. In that situation, you may write out a question and provide it to the courtroom deputy before the witness leaves the witness stand. I will review the question with the lawyers and will determine whether it is a proper and necessary question. If it is, I will ask it. Please understand that the Rules of Evidence may prevent the question from being asked. The trial will now begin. First, each side may make an opening statement. An opening statement is neither evidence nor argument; it is an outline of what that party intends to prove, offered to help you follow the evidence. Next, the Plaintiff will present his/her witnesses and exhibits. Then, the Defendant will present his/her witnesses and exhibits. Each side may cross-examine witnesses presented by the other side. After that I will give you instructions on the law, and the lawyers will make their closing arguments to summarize and interpret the evidence for you. It is now time for opening statements. 4

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STOCK INSTRUCTION 1 (General Instructions for Charge) Ladies and Gentlemen of the Jury: Please pay close attention to these instructions. I will read them only once, but the written instructions will be given to you to take to the jury room. It is my duty and responsibility to instruct you on the law you are to apply in this case. The law contained in these instructions is the only law you may follow. It is your duty to follow what I instruct you the law is, regardless of any opinion that you might have as to what the law ought to be. If I have given you the impression during the trial that I favor either party, you must disregard that impression. If I have given you the impression during the trial that I have an opinion about the facts of this case, you must disregard that impression. You are the sole judges of the facts of this case. Other than my instructions to you on the law, you should disregard anything I may have said or done during the trial in arriving at your verdict. You should consider all of the instructions about the law as a whole and regard each instruction in light of the others, without isolating a particular statement or paragraph. The testimony of the witnesses and other exhibits introduced by the parties constitute the evidence. The statements of counsel are not evidence; they are only arguments. It is important for you to distinguish between the arguments of counsel and the evidence on which those arguments rest. What the lawyers say or do is not evidence. You may, however, consider their arguments in light of the evidence that has been admitted and determine whether the evidence admitted in this trial supports the arguments. You must determine the facts from all the testimony that you have heard and the other evidence submitted. You are the judges of the facts, but in finding those facts, you must apply the law as I instruct you. You are required by law to decide the case in a fair, impartial, and unbiased manner, based entirely on the law and on the evidence presented to you in the courtroom. You may not be influenced by passion, prejudice, or sympathy you might have for the plaintiff or the defendant in arriving at your verdict. The evidence in the case consists of the sworn testimony of the witnesses, regardless of who may have called them, all exhibits received in evidence, regardless of who may have produced them, and all facts which may have been admitted, stipulated, or judicially noticed. Nothing else is evidence. The statements and arguments of the lawyers are not evidence. Their questions and objections are not evidence. Thus, if a lawyer asks a question of a witness that contains an assertion of fact, you may not consider the assertion by the lawyer as any evidence of that fact. Only the answers are evidence. However, when the attorneys on both sides have stipulated or agreed as to the existence of a fact, the jury must, unless otherwise instructed, accept the stipulation and regard that fact as proved. The legal rulings of the Court are not evidence. The comments and questions of the Court are not evidence. Generally speaking, there are two types of evidence. One is direct evidence, such as testimony of an eyewitness. The other is indirect or circumstantial evidence. Circumstantial evidence is evidence that proves a fact from which you can logically conclude another fact exists. As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that you find the facts from a preponderance of all the evidence, both direct and circumstantial. The mere number of witnesses appearing for or against a particular fact, issue, or proposition does not in and of itself prove or disprove that fact, issue, or proposition. You may find that the testimony of a small number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary. Any evidence as to which an objection was sustained by the Court, and any evidence ordered stricken by the Court, must be entirely disregarded. It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. You must each decide the case for yourself, but only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own opinions and change your mind if you are convinced that you were wrong. However, do not give up on your honest beliefs because the other jurors think differently, or just to finish the case. Sources: NM UJI 13-301, 5th Circuit Pattern Instruction 3.1, 3.3 (modified), 3.4 (modified), 3.7 (modified), O’Malley, Grenig, and Lee, 1A Fed. Jury Prac. & Instr. § 103:30 (6th ed.) (modified). STOCK INSTRUCTION 2 (Hard-of-Hearing Juror) We have at least one hard-of-hearing juror in this case. The law permits all citizens to serve on a jury whether or not they are hard of hearing. You must include this [these] juror(s) in all deliberations and discussions on this case. To help you communicate, the juror(s) will be using the services of the official court interpreter. The following rules govern the conduct of the interpreter and the jury: 1. The interpreter’s only function in the jury room is to interpret between speech and sign language. 2. The interpreter is not permitted to answer questions, express opinions, have direct conversations with other jurors or participate in your discussions or deliberations. 3. The interpreter is only permitted to speak directly to a member of the jury to ensure that the interpreter’s equipment is functioning properly and to advise the jury foreperson if a specific interpreting problem arises that is not related to the factual or legal issues in the case. 4. No gesture, expression, sound, or movement made by the interpreter in the jury room should influence your opinion or indicate how you should vote. 5. If you can speak both English and read sign language, you must speak only English in the jury room so the rest of the jury is not excluded from any conversation. 6. Leave all interpretations to the official court interpreter. The interpreter is the only person permitted to interpret conversations inside the jury room and testimony in the courtroom. 7. You must immediately report any deviation from these rules by submitting a note identifying the problem to the judge or court personnel. Source: NM UJI 13-110A (modified). STOCK INSTRUCTION 3 (Corporation as Party) The [plaintiff, defendant, or other party] in this case is a corporation. A corporation is entitled to the same fair and unprejudiced treatment as an individual and you should decide the case with the same impartiality as you would use in deciding a case between individuals. Source: NM UJI 13-114. STOCK INSTRUCTION 4 (Multiple Plaintiffs) Although there is more than one plaintiff in this action, it does not follow from that fact alone that if one is entitled to recover, another is entitled to recover. The rights of the various plaintiffs in this lawsuit are separate and distinct, and you should decide the issues as if each plaintiff had brought a separate lawsuit. [In this connection, you will note that some of the instructions apply to one plaintiff, while other instructions apply to all plaintiffs.] Source: NM UJI 13-115. STOCK INSTRUCTION 5 (Multiple Defendants) Although there is more than one defendant in this action, it does not follow from that fact alone that if one is liable another is liable. Each defendant is entitled to a fair consideration of that defendant’s own defense. You will decide each defendant’s case separately, as if each were a separate lawsuit. Source: NM UJI 13-116. STOCK INSTRUCTION 6 (Deposition Testimony) A deposition is testimony taken under oath before trial and has been preserved [in writing] [by video]. This testimony is entitled to the same consideration as any other testimony at this trial. Source: NM UJI 13-203. The Use Notes for this instruction state that it should be given when a deposition is first admitted into evidence, but may be repeated at the close of the case. STOCK INSTRUCTION 7 (Interrogatories) Interrogatories are written questions asked by one party to another before trial and answered under oath. The questions and answers may be read at trial as evidence. The answers read to you are entitled to the same consideration as any other testimony. Source: NM UJI 13-204. The Use Notes for this instruction state that it should be given when the interrogatories are first admitted into evidence but may be repeated at the close of the case. STOCK INSTRUCTION 8A (Expert Testimony) The Rules of Evidence do not ordinarily permit a witness to testify as to an opinion or conclusion. However, a witness who is qualified as an expert in a subject may be permitted to state an opinion as to that subject. After considering the reasons stated for an opinion, you should give it such weight as it deserves. You may reject an opinion entirely if you conclude that it is unsound. Source: NM UJI 13-213. The Use Notes for this instruction state that it should be given at the time the expert first testifies. STOCK INSTRUCTION 8B (Expert Testimony) The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. There is an exception to this rule for “expert witnesses.” An expert witness is a person who by education and experience has become expert in some art, science, profession, or calling. Expert witnesses give their opinions as to matters in which they profess to be expert and may also state their reasons for their opinions. You should consider each expert opinion received in evidence in this case and give it such weight as you think it deserves. If you should decide the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude the reasons given in support of the opinion are not sound, or if you feel the expert’s is outweighed by other evidence, you may disregard the opinion entirely. As I have told you several times, you—the jury—are the sole judges of the evidence and the facts of this case. Source: O’Malley, Grenig, and Lee, 1A Fed. Jury Prac. & Instr. § 104:40 (6th ed.) (modified). STOCK INSTRUCTION 9 (Use of Notes) You have been allowed to take notes during this trial. Any notes that you took during this trial are only aids to memory. If your memory differs from your notes, you should rely on your memory and not on the notes. The notes are not evidence. If you did not take notes, rely on your independent recollection of the evidence and do not be unduly influenced by the notes of other jurors. Notes are not entitled to greater weight than the recollection or impression of each juror about the testimony. Source: 5th Circuit Pattern Instruction 3.7 (excerpt). STOCK INSTRUCTION 10 (Statement of Theories for Recovery) In this case the plaintiff(s) [name of each plaintiff] seek(s) compensation from the defendant(s) [name of each defendant] for damages that plaintiff(s) say(s) were caused by [negligence, [and] A Defective Product, [and] Breach of Warranty, [and] Breach of Contract, [and] Fraudulent Misrepresentation, [and] Etc.]. [Plaintiff’s summary of theories for recovery must be individually tailored for each case.] Source: NM UJI 13-302A. STOCK INSTRUCTION 11 (Statement of Denials and Affirmative Defenses) The defendant(s) deny(ies) what the plaintiff(s) [say(s) about [theory of recovery(ies) by name]] and defendant(s) say(s) that: [violation of the ordinance was excused or justified, [and] the plaintiff(s) [was] [were] negligent, [and] another party was negligent, [and] a non-party was negligent, [and] Etc.]. [Defendant’s summary of denials and affirmative defenses must be individually tailored for each case.] Source: NM UJI 13-302C. STOCK INSTRUCTION 12 (Burden of Proof) A party seeking a recovery (or a party relying upon a defense) has the burden of proving every essential element of the claim (or defense) by the preponderance of the evidence. To prove by the preponderance of the evidence means to establish that something is more likely true than not true. When I say, in these instructions, that the party has the burden of proof on [theory(ies) of recovery by name], I mean that you must be persuaded that what is sought to be proved is more probably true than not true. Evenly balanced evidence is not sufficient. Source: NM UJI 13-304 (substituting “preponderance” for “greater weight” and omitting clear and convincing standard). STOCK INSTRUCTION 13 (Causation) An [act] [or] [omission, ] [or] [____________(condition)] is a “cause” of [injury] [harm] [____________(other)] if [, unbroken by an independent intervening cause,] it contributes to bringing about the [injury] [harm] [ _____ (other)] [, and if injury would not have occurred without it]. It need not be the only explanation for the [injury] [harm] [ ___ (other)], nor the reason that is nearest in time or place. It is sufficient if it occurs in combination with some other cause to produce the result. To be a “cause,” the [act] [or] [omission] [or] [ (condition)], nonetheless, must be reasonably connected as a significant link to the [injury] [harm]. Source: NM UJI 13-305. Refer to the Use Notes and Committee Commentary for explanations of how and when to use the bracketed material. If the evidence presents an issue with regard to an independent intervening cause, NM UJI 13-306 can also be given. STOCK INSTRUCTION 14 (Consideration of Evidence) The evidence you are to consider consists of the testimony of the witnesses, the documents and other exhibits admitted into evidence, and any fair inferences and reasonable conclusions you can draw from the facts and circumstances that have been proven. Generally speaking, there are two types of evidence. One is direct evidence, such as testimony of an eyewitness. The other is indirect or circumstantial evidence. Circumstantial evidence is evidence that proves a fact from which you can logically conclude another fact exists. As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that you find the facts from a preponderance of all the evidence, both direct and circumstantial. Source: 5th Circuit Pattern Instruction 3.3. STOCK INSTRUCTION 15 (Foreign Language Testimony) You [are about to hear] [have heard] testimony of a witness who [will be testifying] [testified] in the [specify the foreign language] language. Witnesses who do not speak English or are more proficient in another language testify through an official court interpreter. Although some of you may know the [specify foreign language] language, it is important that all jurors consider the same evidence. Therefore, you must accept the interpreter’s translation of the witness’s testimony. You must disregard any different meaning. You must not make any assumptions about a witness or a party based solely on the use of an interpreter to assist that witness or party. Source: 9th Circuit Model Civil Jury Instruction 2.8. STOCK INSTRUCTION 16 (Rules of Evidence) The production of evidence in court is governed by rules of law. From time to time it has been my duty, as judge, to rule on the evidence. You must not concern yourselves with the reasons for these rulings. You should not consider what would or would not have been the answers to the questions which the court ruled could not be answered. Source: NM UJI 13-307 (first paragraph omitted, but similar language is included in Stock Instruction 14). STOCK INSTRUCTION 17 (Charts and Summaries Received in Evidence) Certain charts and summaries [may be] [have been] admitted into evidence to illustrate information brought out in the trial. Charts and summaries are only as good as the testimony or other admitted evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves. Source: 9th Circuit Model Civil Jury Instruction 2.15. STOCK INSTRUCTION 18 (Charts and Summaries Not Received in Evidence) Certain charts and summaries not admitted into evidence [may be] [have been] shown to you in order to help explain the contents of books, records, documents, or other evidence in the case. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves. Source: 9th Circuit Model Civil Jury Instruction 2.14. STOCK INSTRUCTION 19 (Limiting Instruction) When testimony or an exhibit is admitted for a limited purpose, you may consider that testimony or exhibit only for the specific limited purpose for which it was admitted. Source: 5th Circuit Pattern Instruction 2.6. STOCK INSTRUCTION 20 (Corporation Acts Through Employees) A corporation can act only through its officers and employees. Any act or omission of an officer or an employee of a corporation, within the scope or course of that officer’s or employee’s employment, is the act or omission of the corporation. Source: NM UJI 13-409 (modified to be gender neutral). STOCK INSTRUCTION 21 (Liability Must Be Determined Before Damages) You are not to engage in any discussion of damages unless you have first determined that there is liability, as elsewhere covered in these instructions. The fact that you are given instructions on damages is not to be taken as an indication as to whether the Court thinks damages should or should not be awarded. Source: NM UJI 13-1801. STOCK INSTRUCTION 22 (Compensatory Damages) If you should decide in favor of the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate [him or her] for any of the following elements of damages proved by the plaintiff to have resulted from the negligence [wrongful conduct] as claimed: (NOTE: Here insert the proper elements of damages and, in a personal injury case, the instructions which immediately follow may be applicable but, in other types of litigation, the trial lawyers will need to insert here the proper elements applicable under the proven facts and the particular law governing the specific circumstances.) Whether any of these elements of damages have been proved by the evidence is for you to determine. [If you find that, before any injury in this case, plaintiff was already impaired by a physical or emotional condition, plaintiff is entitled to compensation for the aggravation or worsening of the condition, but not for elements of damages to the extent they were already being suffered.] [However, damages are to be measured without regard to the fact plaintiff may have been unusually susceptible to injury or likely to be harmed. The defendant is said to “take the plaintiff as he finds [him] [her],” meaning that the defendant, if liable, is responsible for all elements of damages caused by the defendant’s conduct even if some of the plaintiff's injury arose because the plaintiff was unusually susceptible to being injured.] Your verdict must be based upon proof and not upon speculation, guess, or conjecture. Further, sympathy or prejudice for or against a party should not affect your verdict and is not a proper basis for determining damages. Source: NM UJI 13-1802. STOCK INSTRUCTION 23 (Mitigation of Damages) A person who claims damages resulting from the wrongful act of another has a duty under the law to use reasonable diligence to mitigate his or her damages, that is, to avoid or minimize those damages. If you find the defendant is liable and the plaintiff has suffered damages, the plaintiff may not recover for any item of damage which plaintiff could have avoided through reasonable effort. If you find by a preponderance of the evidence the plaintiff unreasonably failed to take advantage of an opportunity to lessen his or her damages, you should deny a recovery for those damages which the plaintiff would have avoided had he or she taken advantage of the opportunity. You are the sole judge of whether the plaintiff acted reasonably in avoiding or minimizing his or her damages. An injured plaintiff may not sit idly by when presented with an opportunity to reduce his or her damages. However, the plaintiff is not required to exercise unreasonable efforts or incur unreasonable expenses in mitigating the damages. The defendant has the burden of proving the damages which the plaintiff could have mitigated. In deciding whether to reduce the plaintiff’s damages because of his or her failure to mitigate, you must weigh all the evidence in light of the particular circumstances of the case, using sound discretion in deciding whether the defendant has satisfied the burden of proving that the plaintiff’s conduct was not reasonable. Source: 5th Circuit Pattern Instruction 15.5 (modified to be gender neutral). STOCK INSTRUCTION 24A (Punitive Damages—Direct Liability) You may consider punitive damages only if you find that the plaintiff should recover compensatory [or nominal] damages. If you find that the conduct of the defendant was [malicious], [willful], [reckless], [wanton], [fraudulent] [or] [in bad faith], then you may award punitive damages against [him] [her] [it]. [Malicious conduct is the intentional doing of a wrongful act with knowledge that the act was wrongful.] [Willful conduct is the intentional doing of an act with knowledge that harm may result.] [Reckless conduct is the intentional doing of an act with utter indifference to the consequences. When there is a high risk of danger, conduct that breaches the duty of care is more likely to demonstrate recklessness.] [Wanton conduct is the doing of an act with utter indifference to or conscious disregard for a person’s [rights] [safety].] Punitive damages are awarded for the limited purposes of punishment and to deter others from the commission of like offenses. The amount of punitive damages must be based on reason and justice taking into account all the circumstances, including the nature and enormity of the wrong and such aggravating and mitigating circumstances as may be shown. The property or wealth of the defendant is a legitimate factor for your consideration. The amount awarded, if any, must be reasonably related to the injury and to any damages given as compensation and not disproportionate to the circumstances. Source: NM UJI 13-1827 (omitting first sentence and provisions related to vicarious liability). STOCK INSTRUCTION 24B (Punitive Damages—Vicarious Liability) If you find that the conduct of [name of agent or employee of party on whose conduct vicarious claim for punitive damages is based] was [malicious], [willful], [reckless], [wanton], [fraudulent] [or] [in bad faith], you may award punitive damages against [name of party against whom vicarious liability for punitive damages is asserted] if: (a) [name of agent or employee] was acting in the scope of [his] [her] employment by [name of principal or employer party] and had sufficient discretionary or policy-making authority to speak and act for [him] [her] [it] with regard to the conduct at issue, independently of higher authority; [or if] (b) [name of principal or employer party] in some [other] way [authorized,] [participated in] [or] [ratified] the conduct of [name of agent or employee]. Source: NM UJI 13-1827 (addressing vicarious liability). This instruction should be substituted for the second paragraph of Stock Instruction 24A or incorporated immediately after that paragraph depending on whether vicarious liability or both direct and vicarious liability are at issue. STOCK INSTRUCTION 25 (Nominal Damages) If you find that plaintiff has established a right to recover from defendant but that plaintiff has suffered [no harm], [insignificant harm], [or] [damages that cannot be ascertained], you may award [him, her, or it] nominal damages. Nominal damages are a trivial sum of money, usually one cent or one dollar, awarded to a party who has established a right to recover but has not established that [he, she, or it] is entitled to compensatory damages. [The award of a nominal sum for actual damages would not prevent you from awarding punitive damages in such amount as you deem appropriate, if you find that the award of punitive damages is justified under these circumstances.] Source: NM UJI 13-1832. STOCK INTSTRUCTION 26 (Duty to Follow Instructions) The law of this case is contained in these instructions and it is your duty to follow them. You must consider these instructions as a whole, not picking out one instruction, or parts thereof, and disregarding others. Faithful performance by you of your duties is vital to the administration of justice. Source: NM UJI 13-2001 & 13-2002. STOCK INSTRUCTION 27 (Credibility of Witnesses) I have said that you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate. You alone are the judges of the credibility or “believability” of the witnesses and of the weight to be given to the testimony of each of them. In determining the credit to be given to the testimony of any witness, you may take into account the witness’s ability and opportunity to observe, the witness’s memory, the witness’s manner while testifying, any interest, bias or prejudice that the witness may have and the reasonableness of the testimony, considered in light of all the evidence in the case. You may, in short, accept or reject the testimony of any witness in whole or in part. Source: NM UJI 12-2003 (modified with additions). STOCK INSTRUCTION 28 (Impeachment of Witness) A witness may be discredited or impeached by contradictory evidence or inconsistent conduct. [or by evidence that at other times the witness has made material statements, under oath or otherwise, which are inconsistent with the present testimony of the witness.] [or by evidence that the witness has been convicted of a crime.] [or by evidence that the general reputation of the witness for truth, honesty or integrity is bad.] [or by specific acts of wrongdoing of the witness.] If you believe that any witness has been impeached or discredited, it is up to you to give the testimony of that witness only such credit as you may think it deserves. Source: NM UJI 13-2004 (modified, “up to you” substituted for “your exclusive province”). STOCK INSTRUCTION 29 (Jury Sole Judges of the Facts) You are the sole judges of all disputed questions of fact in this case. It is your duty to determine the true facts from the evidence produced here in open court. Your verdict should not be based on speculation, guess, or conjecture. You are to apply the law, as stated in these instructions, to the facts as you find them and, in this way, decide the case. Neither sympathy nor prejudice should influence your verdict. Source: NM UJI 13-2005. The Use Notes indicates that this instruction be given in all cases and is intended to preclude other similar instructions. STOCK INSTRUCTION 30 (All Jurors to Participate) The jury acts as a body. Therefore, on every question on the jury form which the jury must answer it is necessary that all jurors participate regardless of the vote on another question. Before a question can be answered, all of you must agree upon each answer. In other words, your verdict must be unanimous. Source: NM UJI 13-2006 (modified to meet unanimity requirement and with added last sentence). STOCK INSTRUCTION 31 (Concluding Instruction) Upon retiring to the jury room, and before commencing your deliberations, you will first elect a foreperson. The foreperson will preside over your deliberations and will be your spokesperson here in court. You will be given the Court’s instructions and [a special] verdict form[s]. [In this case it will be necessary for you to answer the preliminary questions presented to you on the verdict form.] If you recess during your deliberations, follow all of the instructions that I have given you about your conduct during the trial. If, during your deliberations, you should desire to communicate with me, please put your message or question in writing on one of the forms that my court staff will provide to you. Your note should be signed by the foreperson and then passed to the court security officer who will bring it to my attention. Never attempt to communicate with me except by a written note signed by your foreperson. I will respond as promptly as possible, either in writing or by having you returned to the courtroom. I will always first disclose to the attorneys your question and my response before I answer your question. If I reply to you in writing, please leave both the message and the reply in the jury room. These documents should not be thrown away, even at the conclusion of your deliberations. Bear in mind always that you are not to reveal to me or to any person how you stand, numerically or otherwise, until you have reached a unanimous verdict. Do not disclose any vote count in any communications with the Court. After you have reached your unanimous verdict, your foreperson is to fill in the answers to the questions on the verdict form and date and sign the form. The completed, signed verdict form should then be placed in the envelope that will be provided to you. After completing the verdict form, please also send a note to the court security officer indicating that you have reached a verdict and are ready to return to the courtroom. Again, any notes you pass to the court security officer should not state what your verdict is or how you have voted. Sources: First two paragraphs—derived from first two paragraphs of NM UJI 13-2009. Remaining paragraphs—derived from 9th Circuit Model Civil Jury Instruction 3.3 and stock instructions of other judges of this Court.

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STANDARD VOIR DIRE QUESTIONS BY THE COURT After the jury panel is sworn: Ladies and Gentlemen, the purpose of the voir dire examination is: 1. to enable the Court to determine whether any prospective juror should be excused for cause; and 2. to enable counsel for the parties to exercise their individual judgment with respect to peremptory challenges—that is, challenges for which counsel need not give a reason. As I said, I have a few questions that I will ask before the lawyers ask you questions. My first set of questions relates to whether anyone has any physical disability or problem that would make serving as a member of the jury difficult or impossible. Of course, it is essential that you can hear the judge, the attorneys, and any witnesses that testify. That said, let me begin by asking about your hearing. If you can hear me, please raise your left hand and hold it there for a moment. [Ensure hearing devices are made available to anyone having trouble.] If during this jury selection process or during the trial you are unable to hear a question or answer, please do not hesitate to raise your hand and let me know; I will speak louder and into the microphone for you and instruct the attorneys and witnesses to do the same. I also can arrange for a set of headphones to be available to you to improve the sound for you. It is also essential that you be able to see what is occurring during trial, that you can observe the witnesses as they testify and examine the exhibits that are presented. Does anyone here have any vision problems that are so serious that you may have trouble observing the trial? [If any juror cannot see, we can rearrange the seating so that will not be a problem.] The attorneys assure me that the trial will wrap up as promptly as possible. The trial day will begin each morning at 9:00 a.m. and end by about 5:30 p.m. I will always include a mid-morning 1 break and a mid-afternoon break of approximately 15 minutes each. Also, you will have an hour, or so, lunch break. If you are selected for jury service in this trial, you will be seated in this jury box throughout the trial. Does anyone have any physical disabilities that will make it difficult for you to sit for two hours at a time (between breaks)? You will be able to stand and stretch during trial, as long as you do not distract from trial or impede the view of fellow jurors. Next, this case is expected to take days to try. Is this going to present a problem to any member of the panel? If so, explain. I am now going to read you a short statement about this case because I want to know if anyone has heard of it before. It is important for you to know that this description is not evidence. It simply contains generally the claims made by the plaintiff against the defendant. Here is the statement: [Read Joint Statement of the Case.] By a show of hands, does any member of the panel believe that they have heard or read anything about this case? If so, without telling me what you know, tell me how you are familiar with this case. [Inquire further if necessary.] Next, I will ask the lawyers to stand up and introduce themselves, and if any member of the panel or his or her immediate family knows or has had any business dealings with any of the lawyers or their law firms, please indicate by raising your hand. [Lawyers introduce themselves.] I now will have the lawyers introduce the parties, and I will ask if any member of the panel or his or her immediate family: 1. is personally acquainted with, 2 2. 3. 4. 5. is related to, has had business dealings with, is currently or was formerly employed by, or has had any other relationship or business connection with any of these businesses or people: [Lawyers introduce parties.] I am now going to read the names of all of the prospective witnesses. If any member of the panel knows any of the prospective witnesses, please raise your hand. (I am not going to read parties’ names, although they likely will each testify.) [Read list of witnesses.] Next, has any one here ever served as a juror in a criminal or civil case or as a member of a grand jury in either a federal or state court? If so, was there anything about that experience that would make it difficult for you to sit on the jury in this case? Have you or anyone in your immediate family ever participated in a lawsuit as a party or in any other capacity? (If so, what was your role, and is there anything about that experience that would make it difficult for you sit on the jury in this case?) If you are selected to sit on this case, you must be able to render a verdict solely on the evidence presented at the trial and in the context of the law as I will give it to you in my instructions, disregarding any other ideas, notions, or beliefs about the law that you may have encountered in reaching your verdict. Is there anyone who would have a problem with that? Having heard the questions by the Court, is there any other reason you can think of as to why you could not sit on this jury and render a fair verdict based on the evidence presented to you 3 and in the context of the Court’s instructions to you on the law? Now the lawyers will have a chance to ask you questions. 4