Courtroom Proceedings; Trial Preparation Instructions; Standard Voir Dire Questions; Phone Conferences; Guidelines for Proposed Protective Orders; Dress Code; Stock Jury Instructions

=== Courtroom Proceedings ===

Judge Fashing Courtroom Proceedings 1. Counsel and parties should be seated at counsel table ready to proceed no less than five minutes before the Court's scheduled starting time. 2. 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. 3. Please determine well in advance of trial is there is a need for court interpreters for civil cases. The Court’s courtroom deputy can assist counsel in locating qualified interpreters for civil proceedings. In all criminal cases, the Court will supply certified interpreters. 4. 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. 5. 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. 6. Counsel should question witnesses from the podium and approach the witness or jury box only with the Court’s permission. 7. 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.” 8. Opposing counsel should not respond to objections unless the Court specifically requests a response. 9. Please stand when the jury enters or leaves the courtroom. Stand also when stating objections or addressing the Court.

=== Trial Preparation Instructions ===

PREPARATION FOR TRIAL BEFORE THE HONORABLE LAURA FASHING Trial Counsel, your compliance with the following is required: A. GENERAL TRIAL PREPARATION 1. 2. 3. 4. 5. 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. A multi-day trial will recess at about 5:00 p.m. each day. No recess to locate a missing witness will be allowed unless the witness has been timely subpoenaed. Clients and witnesses must be on time. Stand when you speak. 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. 8. Stand a respectful distance from the jury at all times. The Courtroom is equipped with a Digital Evidence Presentation System (DEPS). You are responsible for operating the DEPS. For training on use of the DEPS, please contact Judge Fashing’s CRD, Natalie Maestas, at 505-348-2071 at least two weeks before trial to schedule training. Please visit www.nmd.uscourts.gov/courtroom-technology for more information on DEPS and other technology available in the Courtroom. 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. 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 AT THE END OF THIS DOCUMENT WHEN FILING THEIR FINAL EXHIBIT LISTS WITH THE COURT. Charts, plats, diagrams, etc. should be marked and ready as to measurements, landmarks, and other identifying factual material before the pretrial conference. 2 2. The Court strongly encourages counsel to stipulate to the admissibility of exhibits wherever possible, particularly regarding their authenticity. FOURTEEEN (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. 2. 3. 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. 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. 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 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. 3 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. 2. 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.” 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 www.nmd.uscourts.gov/content/honorable-laura-fashing. 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. 4 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 SET OF MUTUALLY ACCEPTABLE JURY INSTRUCTIONS ON THE SUBSTANTIVE CLAIMS OR BE PREPARED TO FILE A LEGAL BASIS FOR THEIR OBJECTIONS AS TO EACH INSTRUCTION ON WHICH THEY DO NOT AGREE. To the extent counsel cannot agree, each party must file that party’s proposed jury instructions as a separate document as directed in paragraph 2 of this section. 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. 3. Parties will file written objections to opposing party’s submitted instructions. Objections are due 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. 6. 7. 8. 9. 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. Submit no more than one instruction per page. Each jury instruction should be numbered at the top of the page. Carefully proofread each instruction for errors in spelling, grammar, punctuation, and citations, and for unintended deviations from pattern instructions used as sources. 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 www.nmd.uscourts.gov/content/honorable-laura-fashing under the “Stock Jury Instructions” tab. Parties should include a separate page with a list of requested stock instructions as each is described on the web site. Any objections to the stock jury instructions 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 Fashing’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. 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

=== Standard Voir Dire Questions ===

STANDARD VOIR DIRE QUESTIONS BY THE COURT After the jury panel is sworn: 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. 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 devises 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 don’t 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. Also, it is 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 and end by about 5:30. I will always include a mid-morning break and a mid-afternoon break of approximately 15 minutes each. Also, you will have an hour 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, what is the problem? I’m now going to read you a short statement about this case because I want to know if anyone has heard of it before. It’s important for you to know that this 2 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, has any member of the panel 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’ll ask if any member of the panel or his or her immediate family 1. is personally acquainted with, 2. is related to, 3. has had business dealings with, 4. is currently or was formerly employed by, or 5. has had any other relationship or business connection with any of these businesses or people: [Lawyers introduce parties.] 3 I’m 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’m 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 4 the evidence presented to you 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. 5

=== Phone Conferences ===

Judge Fashing Phone Conferences to Resolve Minor Discovery Matters Judge Fashing will accept requests for telephonic resolution on discovery matters, including resolution of problems occurring during a deposition, provided that the following requirements are met: 1. The parties have not briefed the matter. 2. The matters shall be of a narrow or discrete nature; i.e., instructing a witness not to answer, protective orders, scheduled depositions, or production of files or documents. Requests to compel responses to a number of interrogatories, etc., cannot be easily resolved in telephone conferences. 3. Counsel first shall attempt to resolve the dispute themselves, by discussing the matter either by telephone or in person. An e-mail or letter exchange is not sufficient. 4. Counsel shall schedule a telephone conference by calling (505) 348-2360 and making an appointment, or by emailing [email protected]. All parties must agree to a telephone conference before any one counsel contacts chambers for an appointment. 5. Written requests for a telephonic discovery conference should not include any argument on the merits of the request, nor should requesting counsel use the written request as an opportunity to chastise or criticize opposing counsel. Simply make your request for a discovery conference.

=== Guidelines for Proposed Protective Orders ===

GUIDELINES FOR PROPOSED PROTECTIVE ORDERS SUBMITTED TO JUDGE FASHING Procedure for Requesting Entry of a Protective Order 1. 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. 2. 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. Judge Fashing’s guidelines for proposed protective orders The following guidelines have been developed to assist the parties in drafting stipulated protective orders. 1 1. 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 on which to find good cause to issue the order pursuant to Federal Rule of Civil Procedure 26(c). 2. 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. 3. 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 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 2 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 generally would be 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 insure 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 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 (14) 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. 3 4. 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 to opposing counsel of the intended use of the confidential document 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. 5. 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. 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. 4 6. 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. 7. 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. 8. 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 Fashing Dress Code Notice: 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. (Thongs 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. Your cooperation is appreciated.

=== Stock Jury Instructions ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO Plaintiff, v. Defendant. CV 0- LF/ STOCK JURY INSTRUCTIONS FOR CIVIL TRIALS Effective November 1, 2024 STOCK INSTRUCTION 1 (Use of Notes) If you would like to take notes during the trial, you may. On the other hand, you are not required to take notes. If you do decide to take notes, be careful not to get so involved in note taking that you become distracted, and remember that your notes will not necessarily reflect exactly what was said, so your notes should be used only as memory aids. Therefore, you should not give your notes precedence over your independent recollection of the evidence. You should also not be unduly influenced by the notes of other jurors. If you do take notes, leave them in the jury room at night and do not discuss the contents of your notes until you begin deliberations. Source: 10th Circuit Pattern Jury Instruction No. 1.02(B). STOCK INSTRUCTION 2 (Hearing-Impaired Juror) Ladies and gentlemen, we have at least one hearing-impaired juror who is participating in this case. The law permits all citizens to serve on a jury whether or not they are hearing-impaired. 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 both speak 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 110A 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 Directions for Use of 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 Directions for Use of 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 8 (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 Directions for Use of this instruction state that it should be given at the time the expert first testifies. STOCK INSTRUCTION 9 (General Instructions for Charge) MEMBERS OF THE JURY: You have heard the evidence in this case. I will now instruct you on the law that you must apply. 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 your duty to follow the law as I give it to you. On the other hand, you the jurors are the judges of the facts. Do not consider any statement that I have made in the course of trial or make in these instructions as an indication that I have any opinion about the facts of this case. After I instruct you on the law, the attorneys will have an opportunity to make their closing arguments. Statements and arguments of the attorneys are not evidence and are not instructions on the law. They are intended only to assist the jury in understanding the evidence and the parties’ contentions. Sources: First two paragraphs of 5th Circuit Pattern Instruction 3.1 Portion of NM UJI 13-301 (last two sentences of first paragraph) STOCK INSTRUCTION 10 (Statement of Theories for Recovery) In this case the plaintiff(s) ______________ seek(s) compensation from the defendant(s) ___________ for damages that plaintiff(s) say(s) were caused by __________. [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) [and the defendant(s) say(s) that ___________________]. [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 Directions for Use 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 306 can also be given. STOCK INSTRUCTION 14 (Consideration of Evidence) As stated earlier, it is your duty to determine the facts and in so doing you must consider only the evidence I have admitted in the case. The evidence consists of the testimony of the witnesses and the exhibits admitted into evidence by the court [and any facts admitted or agreed to by counsel] [and any facts which the court instructs you to accept as true]. There are, generally speaking, two types of evidence from which a jury may properly determine the facts of a case. One is direct evidence, such as the testimony of an eyewitness. The other is indirect or circumstantial evidence, that is, the proof of a chain of facts which point to the existence or nonexistence of certain other facts. As a general rule, the law makes no distinction between direct and circumstantial evidence. The law simply requires that you find the facts in accord with all the evidence in the case, both direct and circumstantial. While you must consider only the evidence in this case, you are permitted to draw reasonable inferences from the testimony and exhibits, inferences you feel are justified in the light of common experience. An inference is a conclusion that reason and common sense may lead you to draw from facts which have been proved. By permitting such reasonable inferences, you may make deductions and reach conclusions that reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in this case. In reaching a conclusion on a particular point, or ultimately in reaching a verdict in this case, do not make any decisions simply because there were more witnesses on one side than on the other. Sources: First paragraph—First paragraph of NM UJI 13-307, with first sentence added Second-Fourth paragraphs—10th Circuit Pattern Jury Instruction No. 1.07. Fifth paragraph—final paragraph of 10th Circuit Pattern Jury Instruction No. 1.08. STOCK INSTRUCTION 15 (Official English Interpretation Controls) Spanish [or other language] has been used during this trial. The evidence you are to consider is only that provided through the official court interpreter(s). Although some of you may know Spanish [or other language], it is important that all jurors consider the same evidence. Therefore, you must base your decision on the evidence presented in the English interpretation. You must disregard any different meaning. Source: 9th Circuit Pattern Instruction 3.4 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 here, but included in Stock Instruction 14) STOCK INSTRUCTION 17 (Charts and Summaries Not Received in Evidence) Certain charts and summaries have been shown to you to help explain the evidence in this case. Their only purpose is to help explain the evidence. These charts and summaries are not evidence or proof of any facts. Source: 10th Circuit Pattern Jury Instruction No. 1.41 STOCK INSTRUCTION 18 (Charts and Summaries Received in Evidence) Certain charts and summaries have been received into evidence to illustrate information brought out in the trial. 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 Pattern Instruction 3.10 STOCK INSTRUCTION 19 (Limiting Instruction) You will recall that during the course of this trial I instructed you that I admitted certain testimony [and certain exhibits] for a limited purpose and I instructed you that you may consider some testimony [and documents] as evidence against one party but not against another. You may consider such evidence only for the specific limited purposes for which it was admitted. [Specific limiting instructions may be repeated as appropriate.] Source: 5th Circuit Pattern Instruction 2.15 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 STOCK INSTRUCTION 21 (Liability 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 find that the defendant is liable to the plaintiff, then you must determine an amount that is fair compensation for all of the plaintiff’s damages. These damages are called compensatory damages. The purpose of compensatory damages is to make the Plaintiff whole– that is, to compensate the plaintiff for the damage that the plaintiff has suffered. [Compensatory damages are not limited to expenses that the plaintiff may have incurred because of his or her injury. If the plaintiff wins, he or she is entitled to compensatory damages for the physical injury, pain and suffering, mental anguish, shock and discomfort that he or she has suffered because of the defendant’s conduct.] You may award compensatory damages only for injuries that the plaintiff proves were caused by the defendant’s allegedly wrongful conduct. The damages that you award must be fair compensation for all of the plaintiff’s damages, no more and no less. [Damages are not allowed as a punishment and cannot be imposed or increased to penalize the defendant.] You should not award compensatory damages for speculative injuries, but only for those injuries which the plaintiff has actually suffered or that the plaintiff is reasonably likely to suffer in the future. You must use sound discretion in fixing an award of damages, drawing reasonable inferences where you find them appropriate from the facts and circumstances in evidence. Further, sympathy or prejudice for or against a party should not affect your verdict and is not a proper basis for determining damages. You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence: [insert elements of damages] Sources: 5th Circuit Pattern Instruction 15.2, omitting the third paragraph and the word “proximately” from first sentence in the second paragraph Last sentence of 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—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 he or she 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 the 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 damages. An injured plaintiff may not sit idly by when presented with an opportunity to reduce 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 a 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 15.15, modified to be gender-neutral STOCK INSTRUCTION 24 (Prohibition on Double Recoveries) You must not award compensatory damages more than once for the same injury. The plaintiff is only entitled to be made whole once, and may not recover more than the plaintiff has lost. Of course, if different injuries are attributed to the separate claims, then you must compensate the plaintiff fully for all injuries. [With respect to punitive damages, you may make separate awards on each claim that the plaintiff has established.] Source: First two paragraphs of 5th Circuit Pattern Instruction 15.14, omitting second sentence of first paragraph STOCK INSTRUCTION 25A (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 25B (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 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 party) in some [other] way [authorized,] [participated in] [or] [ratified] the conduct of __________ (name of agent or employee). Source: NM UJI 13-1827 This instruction should be substituted for the second paragraph of Stock Instruction 25A or incorporated immediately after that paragraph depending on whether vicarious liability or both direct and vicarious liability are at issue. STOCK INSTRUCTION 26 (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] [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] [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, with additional optional language in brackets STOCK INSTRUCTION 27 (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 of an instruction, 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 28 (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, with additions STOCK INSTRUCTION 29 (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. 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, with “up to you” substituted for “your exclusive province” STOCK INSTRUCTION 30 (All Jurors to Participate) The jury acts as a body. Therefore, on every question which the jury must answer it is necessary that all jurors participate. 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 (Duty to Deliberate/Concluding Instruction) In a moment the [courtroom deputy/court security officer] will escort you to the jury room and provide each of you with a copy of the instructions that I have just read. Any exhibits admitted into evidence will also be placed in the jury room for your review. When you go to the jury room, you should first select a foreperson, who will help to guide your deliberations and will speak for you here in the courtroom. [The second thing you should do is review the instructions. Not only will your deliberations be more productive if you understand the legal principles upon which your verdict must be based, but for your verdict to be valid, you must follow the instructions throughout your deliberations. Remember, you are the judges of the facts, but you are bound by your oath to follow the law stated in the instructions.] To reach a verdict, all of you must agree. Your deliberations will be secret. You will never have to explain your verdict to anyone. You must consult with one another and deliberate in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to reexamine your own opinions and change your mind if convinced that you were wrong. But do not give up your honest beliefs solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Remember at all times, you are judges—judges of the facts. A form of verdict has been prepared for your convenience. Sources: Derived from 10th Circuit Pattern Jury Instruction No. 1.23. ______________________________ Laura Fashing United States Magistrate Judge