Individual Judicial Preferences & Procedures; Final Pretrial Order Template; Sample Template for Disputes Using Column Format

=== Individual Judicial Preferences & Procedures ===

JUDGE ESTHER SALAS’S GENERAL PRETRIAL AND TRIAL PROCEDURES I. PRELIMINARY GENERAL MATTERS1 A. Professionalism and Civility Litigants should be polite, courteous, and otherwise civil to one another, as well as to all parties, witnesses, and Court personnel at all times. Litigants should be punctual for all conferences, hearings, oral arguments, and trials. Judge Salas expects litigants to confer with and keep their clients up to date (1) with respect to substantive submissions to the Court, (2) in advance of Court appearances, and (3) as to material developments in the client’s case. All of the matters addressed in these Procedures apply to all litigants, including all pro se litigants, in any matter pending before Judge Salas. In general, litigants should bring matters to the Judge’s attention only after they have been discussed with opposing counsel and a reasonable effort has been made to resolve a dispute and the positions of all interested parties on the matter needing the Court’s attention have been shared. The examination of witnesses during hearings or trials should be conducted from the lectern or from counsels’ table. Speakers always should rise to address the Court unless specifically instructed otherwise. In addition, speakers will direct all comments to the Court or to the witness under examination and not to other litigants or to the jury. To the extent possible, the Court should be alerted to issues that will need to be ruled upon 1 To the extent that the rules for the Third Circuit or the District of New Jersey conflict with any of the preferences set forth in this document, the rules of the Third Circuit and the District of New Jersey control. 2 during the day at the start of the day’s proceedings, or during recess out of the jury’s presence. B. Correspondence with the Court Before corresponding with the Court, litigants must consult the relevant rules for the Third Circuit, the District of New Jersey, this document, and the docket on the CM/ECF system. Only after doing so is it appropriate to contact the Court. To the extent you wish to contact the Court on a routine scheduling matter (e.g., an extension for the submission of a brief), please do so with as much advance notice as possible, and please do so in writing via CM/ECF so that all litigants are apprised of the request. The Court will not accept oral requests for extensions over the phone or via fax without a corresponding request via CM/ECF. Correspondence to advise the Court that a case has been settled or dismissed is also appropriate, as is correspondence on any matter when specifically requested by the Court. Any written communication requesting action by the Court on any subject should include at a minimum: (1) a very brief description of the situation requiring the Court’s attention; (2) the position of the opposing party(ies) (i.e., consent or opposition); and (3) the specific relief sought. All litigants should be sent a contemporaneous copy of all correspondence sent to the Court. All other communications with the Court should be made by the formal filing of pleadings, motions, applications, briefs, or legal memoranda. In general, and unless otherwise directed by the Court, all discovery-related correspondence, as well as any correspondence related to non-dispositive motions, 3 should be addressed to the Magistrate Judge assigned to the case. All correspondence related to dispositive motions, trials, and related oral arguments should be addressed to Judge Salas. C. Telephone Correspondence with the Court When litigants call Chambers, they should let the Court know (1) their name(s); (2) the case name and civil action number on which they are calling; (3) the party(ies) they represent; and (4) their question. Further information is not required unless requested by the Court. Please review the docket before contacting the Court, as litigants’ questions can often be answered by reviewing the docket. D. Communication with Law Clerks Judge Salas permits limited communications with her law clerks. Unless directed otherwise by the Court, litigants should never contact law clerks for advice on substantive or procedural matters other than of a very rudimentary nature (such as to confirm the Court’s administrative policies and procedures or to alert the Court of some actual emergency that cannot be timely handled by conventional correspondence or formal filings). Communications with the Court about scheduling matters should be directed to Judge Salas’s Courtroom Deputy. Communications from litigants purporting to justify litigants’ conduct because “Your Honor’s law clerk [or Deputy] said . . .” are highly disfavored and are never appropriate as an explanation of litigants’ strategic or tactical choices. 4 E. Telephone Conferences Telephone conferences with all litigants may be used at the Court’s discretion to resolve scheduling matters, time extensions, or other disputes. Litigants will be notified of the date and time for the telephone conference. It will be the responsibility of litigants for the moving or initiating party to arrange the telephone conference and to contact Judge Salas’s Chambers after all litigants are present on the call unless otherwise advised by the Court. Litigants are reminded to be especially careful to avoid being discourteous during telephone conferences by failing to listen to other speakers, failing to identify themselves prior to each statement, failing to speak loudly or slowly enough to be heard, etc. In that regard, litigants should be mindful that cell phones typically do not perform well for multi-party conference calls. Failure to observe basic telephone courtesy will result in the Court’s refusal to use telephone conferences in matters involving the offending participants. When litigants contact Chambers for a conference call, litigants should recognize that the individuals who answer the phone are asking for names and spelling for a reason. The Courtroom Deputy or law clerks are recording the names for purposes of organizing the call and streamlining discussion. Therefore, please speak slowly and spell your name so that the Judge knows who is participating during the call. Again, in cases involving numerous parties, litigants should remember to identify themselves during the call so that Judge Salas knows who is talking. 5 F. Oral Arguments and Evidentiary Hearings Judge Salas does not set aside specific days or times for oral argument, motions, or evidentiary hearings. Hearings and arguments are scheduled on an ad hoc basis as warranted. The Court endeavors to provide litigants with appropriate advance notice of scheduled hearings, arguments, and conferences—and expects litigants to refrain from last minute (i.e., less than 48 hours) requests to cancel, postpone, or reschedule such matters in the absence of actual emergencies. G. Opportunities for Junior Lawyers Judge Salas strongly encourages parties to allow junior associate lawyers (i.e., lawyers in their first six years of practice) to present arguments whenever possible. If a party provides advance notice to the Court that a junior associate lawyer will present argument, Judge Salas may allow the junior associate lawyer extra time for argument, and may permit more experienced counsel to assist in the argument should the need arise. H. Pro Hac Vice Admissions Please refer to Local Civil Rule 101.1(c). II. CIVIL CASES A. Pretrial Procedures and Final Pretrial Conference with Magistrate Judge Generally, the Magistrate Judge assigned to the case schedules an initial pretrial conference pursuant to Local Civil Rule 16. These conferences are held after the filing of the defendant’s answer or a dispositive motion. The Magistrate Judge assigned to the case determines associated procedures. At the close of discovery, the Magistrate Judge 6 will hold a final pretrial conference. Prior to that conference, the Magistrate Judge will provide the litigants with a proposed form of final pretrial order. B. Following Final Pretrial Conference with Magistrate Judge Judge Salas may hold a telephone conference with litigants to set a date for a settlement conference. Where settlement is not possible, Judge Salas will set dates for pre- trial submissions. Generally, dates for trial briefs and in limine motions are set for forty- five (45) days before the trial date. C. Settlement Conference Absent leave of Court, trial counsel and clients with full settlement authority must attend all settlement conferences in person. D. Chambers Copy of Motions Judge Salas requires strict compliance with the length limitations and format requirements for briefs set forth in Local Rule 7.2. Courtesy copies of motions need NOT be submitted to the Court unless otherwise advised by Judge Salas’s staff. E. Motions i. General Except as permitted by Local Rule 12.1, no formal motions may be filed without leave of Court. ii. Motions to Seal The Magistrate Judge handles motions to seal. 7 iii. Continuances and Extensions Litigants should expect the Court to maintain the dates contained in the Scheduling Order, unless there is good cause to justify a change. Generally, Judge Salas will grant a short (i.e., two weeks or fewer) continuance or extension that will not affect discovery dates, motion-decision dates, hearing dates, or trial dates, if requested with the agreement of all litigants. Any other request for a continuance or extension should set forth in detail the basis for the request and whether the request is agreed to or opposed by the other litigant(s). A request for an extension or continuance of longer than two (2) weeks regarding the trial date, a discovery cutoff date, or the deadline for filing dispositive motions must be made sufficiently prior to the due date to allow time for the Court to consider it and should set forth compelling reason(s) for the relief sought. An unopposed request may be made by letter to the Court and should include the reasons for the request. All such letters—as with all correspondence with the Court—should be filed electronically via CM/ECF. iv. General Motion Practice Except as set forth here, motion practice will be conducted in accordance with Local Civil Rule 7.1. Every factual assertion considered by the submitting litigant to be important to that litigant’s position in a motion, opposition, or brief must be supported by citation or other specific reference to the record where that fact may be found. Legal and record citations must be “pinpoint cites.” 8 v. Oral Argument on Motions If the Court determines that oral argument will be helpful in deciding a matter, Judge Salas will schedule it and the parties will be specifically advised of a date and time for oral argument via CM/ECF. vi. Reply and Sur-Reply Briefs Replies are generally permitted pursuant to Local Civil Rule 7.1(d). However, according to Local Civil Rule 7.1(d)(3), no reply papers shall be filed concerning motions for Cross-Motion under Local Civil Rule 7.1(h); Reconsideration under Local Civil Rule 7.1(i); Case Management under Local Civil Rule 16.1(g)(2); and Discovery under Local Civil Rule 37.1(b)(3), unless the Court permits otherwise. No sur-replies are permitted without permission. They are strongly discouraged unless it is apparent on the face of the submission that such additional briefing is necessary to rebut an issue or point of law not discussed in the initial briefs. Sur-reply briefs may be filed and served within seven (7) days of service of the brief to which the sur-reply responds unless the Court sets a different schedule. Sur-reply submissions should not contain a repeat recitation of the facts of the case and, without leave of Court for good cause shown, must not exceed fifteen (15) pages in total. No other briefs may be filed without leave of Court for good cause shown. F. Summary Judgment Motions Local Civil Rule 56.1 requires: On motions for summary judgment, the movant shall furnish a statement which sets forth material facts as to which there does not exist a genuine issue, in separately numbered 9 paragraphs citing to the affidavits and other documents submitted in support of the motion. A motion for summary judgment unaccompanied by a statement of material facts not in dispute shall be dismissed. D.N.J. Civ. R. 56.1 (a) (emphasis added). Additionally, the Court will not consider any assertion of a fact that is not supported by a citation to the record. A litigant opposing summary judgment must state in similar paragraph form whether that litigant agrees or disagrees that the fact(s) as stated by the moving litigant are undisputed. If a litigant contends that a fact is in dispute, citation must be made to the record evidence that supports the litigant’s view of that particular fact. Failure to address the moving party’s factual contentions in this manner will lead to the Court’s consideration of the moving party’s factual assertion(s) as undisputed. G. Motions Seeking Emergent Relief Judge Salas will promptly hold a hearing for any request for a temporary restraining order (“TRO”) assigned to her. She will typically hold a pre-hearing conference to discuss the emergent issue(s) in contention and to allocate time for the hearing. Expedited discovery may be discussed and, when appropriate, ordered at the conclusion of the pre-hearing conference. Submission of proposed findings of fact and conclusions of law for TRO and injunction hearings will be required. The time for submission of these items will be set at the pre-hearing conference. 10 H. Pretrial Combined Submissions (In Hard Copy and Microsoft Word Format) i. Exhibit Lists and Bench Books Please submit to the Court—in hard copy and in Word Format—a consolidated/combined joint exhibit list to minimize the duplication of the exhibits. The list should be a chart separated into three columns. Column 1 will list the exhibit. Column 2 will contain the opponent’s objection (a very short statement containing the relevant rule and/or concept). Column 3 will contain the proponent’s rationale for admissibility (e.g., the relevance rationale or on-point hearsay exception). Litigants shall also submit three (3) copies of the bench book of trial exhibits, unless otherwise advised by Chambers. The Courtroom Deputy will use the originals. However, during the course of trial, if litigants change exhibit tabs or add new exhibits, litigants must update two copies that will be left in the Courtroom at 4:30 pm. These copies are for the Judge and the Law Clerk assigned to the trial. ii. Combined Neutral Statement of Facts The litigants should submit a short proposed statement of the case that the Court will read during jury selection as part of the Court’s initial statements. Any disagreements by the litigants should be submitted in column form. The column on the left will contain Plaintiff’s (or the Prosecution’s) proposals. The column on the right will contain the Defendant’s proposals. 11 iii. Proposed Preliminary Jury Instructions, Final Jury Instructions, and Verdict Sheet Instead of separate submissions from the litigants, Judge Salas requires one combined submission, identifying any areas of disagreement. Where the litigants are unable to agree, the submission should be split into two columns as discussed above. Each proposed instruction should be double-spaced and include citations to specific authority using footnotes. Proposed instructions without citations to specific legal authority will not be considered. Cases and model jury instructions that are cited should be accurately quoted and a pinpoint page reference should be provided. If a model jury instruction is submitted, for instance, from the Third Circuit Model Instructions at http://www.ca3.usCourts.gov/modeljuryinstructions.htm, Devitt & Blackmar, Federal Jury Practice and Instructions, or Sand, Modern Federal Jury Instructions, the submitting litigant shall state whether the proposed jury instruction is unchanged or modified. If a litigant modifies a model jury instruction, additions should be underlined and deletions placed in brackets. Judge Salas strongly prefers jury instructions that track the relevant model. She disfavors jury instructions containing case-specific facts or contentions. Because Judge Salas usually charges the jury before closing arguments, and because she disfavors the inclusion of facts or contentions in the jury charge, litigants are encouraged to include facts and contentions in their summations. 12 iv. Voir Dire Questions Ordinarily, Judge Salas will conduct voir dire. Instead of separate submissions from the litigants, Judge Salas requires one combined submission, identifying any questions in dispute. The Court will provide an example of voir dire questions that were used during a recent trial. Litigants should utilize a similar format in crafting the proposed voir dire question for their case. v. Prepared Script for Counsel’s Review Judge Salas will provide a prepared script she will read at voir dire. The script will be available for counsel to review prior to voir dire selection. I. Pretrial Meeting On the business day before jury selection, or on a day otherwise specified by the Court, Judge Salas will hold an in-person housekeeping meeting with litigants. The meeting will include (but will not be limited to) marking exhibits and previewing objections, discussing the voir dire, and discussing jury instructions. J. Trial Procedure i. Scheduling The trial day typically will be from 9:30 a.m. until 4:30 p.m., so that the early morning and late afternoon periods can be used for addressing matters outside the presence of the jury. 13 ii. Cases Involving Out-of-Town Parties or Witnesses Other than in rare and exceptional circumstances, Judge Salas schedules the trial of cases involving out-of-town litigants, parties, or witnesses the same as all other cases, leaving the scheduling of witnesses to litigants. iii. Conflicts of Litigants Litigants should notify the Court and opposing counsel immediately upon learning of any unavoidable and compelling professional or personal conflicts affecting the trial schedule. Once a trial date has been set, the Court expects that obligation to take precedence over other matters (except serious, unanticipated personal or professional emergencies). iv. Note Taking by Jurors Judge Salas does not permit jurors to take notes. Note taking is not necessary and will distract jurors from paying attention to what a witness is saying and his or her manner on the witness stand. The jurors will be able to rely on their collective memory about the testimony and other evidence when the jury is deliberating. Indeed, that is one of the reasons for having a number of persons on the jury. Although the Court reporter will be transcribing the testimony, litigants should not assume that transcripts will be available for review by jurors during jury deliberations. v. Juror Questions to Witnesses Judge Salas does not permit jurors to submit questions to the Court to be posed to a witness. 14 vi. Trial Briefs Generally, Judge Salas requires the submission of trial briefs no later than forty- five (45) days before trial. vii. In Limine Motions Submission dates for in limine motions are set during the initial telephone conference with Judge Salas following the Magistrate Judge’s final pretrial conference. Typically, in limine motions are due forty-five (45) days before trial. viii. Peremptory Challenges Judge Salas prefers that counsel stand and announce their peremptory challenges, and Judge Salas will typically permit only one pass by a party without forfeiture. ix. Opening Statements and Summations Judge Salas normally attempts to obtain the agreement of litigants regarding time limits on opening statements and closing arguments. However, in most cases, twenty (20) to thirty (30) minutes should be adequate for an opening statement, and thirty (30) to forty-five (45) minutes should be adequate for summation. x. Examination of Witnesses or Argument by More Than One Attorney Judge Salas will permit more than one attorney for a party to examine different witnesses or to argue different points of law before the Court, but only one attorney per party may examine the same witness. Although Judge Salas permits different attorneys to give the opening and summation, the opening attorney must provide the full opening and the closing attorney must provide the full summation. 15 The attorney conducting direct or cross examination shall be the only litigant speaking at sidebar conference. xi. Trial Equipment Equipment and the smooth presentation of exhibits in video or other electronic form is the responsibility of litigants and should be attended to with care. Back-up plans in the event of equipment failure should be available. Litigants are required to ensure that they are fully familiar with the equipment before appearing in Court so that the proceedings run smoothly, without being hampered by avoidable technology problems. Should litigants wish to use equipment provided by the Court or to set up the Courtroom before their appearance to test the technology, please contact Judge Salas’s Courtroom Deputy at least one week prior to the start of trial. xii. Offering Exhibits into Evidence Generally, unless the litigants have an agreement as to the admissibility of a proposed exhibit, a witness may not testify as to its content until it has been admitted into evidence. xiii. “Directed Verdict” Motions Motions for judgment as a matter of law in jury trials and motions for an involuntary dismissal in non-jury trials should be in writing if at all possible. Oral argument on such motions is ordinarily permitted. xiv. Proposed Findings of Fact and Conclusions of Law The Court will set a timeframe for submitting proposed findings of fact and conclusions of law in non-jury cases depending on the complexity of the matter. The 16 Court will generally require litigants to submit a joint submission of proposed findings of fact in column format as follows: (1) in each column, litigants must provide consecutively numbered paragraphs with headings and subheadings to indicate issues and sub-issues; (2) litigants must indicate which facts are agreed upon; and (3) litigants must include specific reference to testimonial or documentary evidence in support of the proposals. xv. Unavailability of Witnesses Because a witness may be unavailable at the time of trial, as defined in Federal Rule of Civil Procedure 32(a)(3), the Court expects oral or videotaped depositions to be used at trial for any witness whose testimony a litigant believes essential to the presentation of that litigant’s case, whether the witness is a party, a non-party, or an expert. The unavailability of such witness will not be a ground to delay the commencement or progress of trial. xvi. Lay Witness Opinion Any litigant expecting to offer opinion testimony from lay witnesses pursuant to Federal Rule of Evidence 701 with respect to issues of liability or damages shall, at the time required for submission of expert reports, serve the opposing litigants with the same information and/or documents required with respect to such expert witnesses. 17 K. Jury Deliberations i. Timing of Jury Charge In most cases, Judge Salas will charge the jury before closing arguments, providing the jurors with an opportunity to learn the law before hearing summations that match the facts and contentions to the law. ii. Written Jury Instructions In most cases, Judge Salas will provide jurors with copies of the instructions. iii. Exhibits in the Jury Room Unless good cause is shown, Judge Salas will permit all exhibits containing substantive or real evidence to be available to the jury for deliberation. Litigants should confer with each other as to which exhibits should go into the jury room. Before deliberation, litigants will confer with the Courtroom Deputy to confirm which exhibits including demonstratives (and which versions of exhibits) will go into the jury room. iv. Handling Jury Requests to Read Back Testimony or Replay Tapes At the jury’s request, if the transcript is available, Judge Salas will permit a copy of the sanitized transcript to go into the jury room, but only with the consent of the litigants. v. Availability of Litigants During Jury Deliberation Unless excused by the Court, litigants should remain in the Courthouse during jury deliberations, and, in any event, be no more than 10 minutes away from the Courthouse. 18 vi. Polling the Jury Judge Salas will poll the jury upon request. vii. Meeting with the Jury Judge Salas may meet with jurors after a verdict but counsel and parties are prohibited from doing so. III. CRIMINAL CASES In general, policies and procedures for criminal cases are the same as those set forth above for civil cases. A. Oral Argument and Motions If requested, Judge Salas generally will permit oral argument on a substantive motion in a criminal case. B. Indictments and Informations Generally, Judge Salas does permit the jury to have a copy of the redacted indictment. During deliberation, any question regarding what to redact should be made to the Courtroom Deputy. C. Sentencing Memoranda i. Timing Unless otherwise ordered by the Court, a party moving for a variance, downward departure, or submission in mitigation of a sentence (a “Moving Submission”) is instructed to directly serve the Court, in accordance with the procedures set forth in subsection ii below, no fewer than ten (10) business days prior to the sentencing date. The responsive party’s submission (a “Responsive Submission”) to any related motions 19 shall be submitted and served, in accordance with the procedures set forth in subsection ii below, no fewer than five (5) business days prior to the sentencing date. ii. Submissions All sentencing memoranda, along with all supporting exhibits and correspondence (collectively, the “Sentencing Materials”), shall be submitted directly to the Court. The submitting party is also expected to furnish copies to all Counsel of Record and the United States Probation Department. Although the submitting party is not required to file its memorandum on the Court’s CM/ECF system, the submitting party is required to file a notice via CM/ECF (a “Submission Notice”) on the form prescribed by the Clerk of the Court. Any interested member of the public or press who wishes to obtain a copy of the Sentencing Materials (a “Requestor”) must make a Request for Disclosure on a form prescribed by the Clerk of the Court within 48 hours of receiving the Submission Notice. A Request for Disclosure made after 48 hours of receiving the Submission Notice may or may not be considered by the Court prior to the sentencing hearing. A Requestor or the Requestor’s attorney is encouraged to contact Judge Salas’s chambers to confirm that their Request for Disclosure has been received by the Court. Upon a Request for Disclosure, Counsel of Record is required to meet and confer to determine what non-public information should be redacted from the Sentencing Materials in accordance with subsection iii below. All proposed redactions to the Sentencing Materials shall be made prior to disclosure regardless of whether the parties to the underlying criminal matter agree on all the redactions. Redacted Sentencing 20 Materials shall be electronically filed via CM/ECF within 48 hours after the Request for Disclosure is filed on the docket. A member of the public or the press who wishes to have access to portions of the redacted sections of the Sentencing Materials shall advise the Court, via a written submission on the docket (or if unrepresented by counsel, via e-mail to the Courtroom Deputy and all Counsel of Record) that it seeks access to redactions contained within the Sentencing Materials. Such written submission shall identify the name of the requesting party, the name of counsel for the requesting party, if any, the specific portions of the sentencing memoranda sought to be disclosed, and any legal arguments supporting disclosure (not to exceed to 5 pages). Within two days of such written submission, the parties shall electronically file a response (not to exceed 5 pages). Thereafter, Judge Salas will either conduct a conference, enter an appropriate briefing schedule, or rule summarily. iii. Presumptively Non-Public Information When letters are attached to a sentencing memorandum, those letters should be grouped together as attachments to a single document. Any letters sent directly to the Court and not attached as an exhibit to a sentencing memorandum will be presumptively deemed confidential unless and until ruled otherwise by Judge Salas. Counsel of Record during the meet and confer process should take great care to redact Presumptively Non-Public Information prior to e-filing on CM/ECF. Presumptively Non-Public Information includes the following: references to the Presentence Report (“PSR”); names of victims, witnesses, and other individuals whose 21 identity and roles were not previously disclosed; information regarding cooperation by the defendant and others that was not previously disclosed; sensitive personal information concerning the defendant and others, including but not limited to medical or psychological reports and data; personal identifying information such as addresses, social security numbers, account numbers, and dates of birth; and information obtained during the course of a Grand Jury or law enforcement investigation that was not previously disclosed. All redactions should be sufficient to ensure that the content of the redacted information is not apparent from the context of the surrounding text D. Probation Reports Judge Salas will not ordinarily permit the defendant or counsel for either party to review the Probation Department’s recommendations regarding sentencing. E. Continuances Defense counsel will be expected to consult with their client and set forth in papers submitted to the Court their client’s position with respect to any request for a continuance. The defendant’s written agreement with the request must be submitted to the Court at the time of the defense motion to arrive no later than ten (10) business days before sentencing. IV. OTHER GENERAL MATTERS A. Miscellaneous Courtroom Conduct Issues i. Cell Phones Please note that all cell phones, cameras, and other electronic devices are prohibited in this Courtroom, so if you have them, please turn them off. If a cellphone or 22 other electronic device goes off during a Courtroom proceeding, the Courtroom Deputy may confiscate the device. ii. Approaching the Witness If a litigant wishes to approach the witness, the litigant should ask for permission to do so. If a litigant needs to approach one witness many times, a single request for permission will suffice. iii. Objections and Sidebars If a litigant wishes to make an objection, he or she should stand, state the objection, and simply state the basis for the objection, such as “hearsay” or “relevance.” The Court disfavors speaking objections. If a litigant believes a more extensive conference is required, then the litigant should request a sidebar conference. The Court usually will grant the request so long as such circumstances are not abused. Litigants are encouraged to bring any evidentiary questions to the Court’s attention outside the presence of the jury, preferably before or after the day’s proceedings. iv. Witness and Jury Litigants have the responsibility to advise witnesses that no witness may talk to the jury at any time during the pendency of the case. For example, if the witness has stepped down from the witness stand to testify as to an exhibit, the witness should not have any private conversation whatsoever with any juror. The witness may, of course, direct his or her answers to the jury’s direction, so long as the witness is still answering a litigant’s questions. 23 v. Documents and Exhibits Any and all documents to be provided to the Court or viewed by the jury should first be handed to the Courtroom Deputy. vi. Transcripts It is a litigant’s obligation to make all necessary arrangements with Judge Salas’s Court Reporter for securing a transcript of the proceedings. B. Final Considerations i. Conflicts with These Procedures Parties are advised that this document governs proceedings in this Court, unless otherwise directed by Judge Salas. However, if other conflicts arise or if a deviation is appropriate, the Court is willing to entertain a prompt and reasonable request to depart from these Procedures. As stated above, if conflicts arise between these Procedures and the rules for the Third Circuit or the District of New Jersey, please follow the rules of the Third Circuit or District of New Jersey. ii. Civility This Court puts a high premium on civility. To repeat comments set forth above, Judge Salas expects punctuality and courtesy from litigants to the Court and to each other, both in the presence of the Court and otherwise. 24 iii. Additional Remarks and Questions for the Court It is this Court’s priority to provide prompt and efficient adjudication of justice. The Court looks forward to working with litigants to achieve this important goal, and hopes these Procedures aid litigants in that process. If litigants have a specific question on a matter not addressed above, litigants are encouraged to contact the Judge Salas’s staff. 25

=== Final Pretrial Order Template ===

THIS FORM IS TO BE RETYPED IN FULL (INCLUDING ALL INSTRUCTIONS) AND ALL MATERIAL INSERTED IN PROPER SEQUENCE AND NOT BY MEANS OF ATTACHED RIDERS EXCEPT AS PROVIDED BELOW. BEFORE SUBMITTING THIS DOCUMENT, THE PARTIES ARE TO CONSULT “JUDGE ESTHER SALAS’S GENERAL PRETRIAL AND TRIAL PROCEDURES.” (PLEASE NUMBER ALL PAGES) UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Plaintiff, -v- Defendant. : : : : : : Civil Action No. Hon. Esther Salas, U.S.D.J. Hon. Joseph Dickson, U.S.M.J. PROPOSED FINAL PRETRIAL ORDER This matter having come before the Court for a pretrial conference pursuant to Fed. R. Civ. P. 16; having appeared for plaintiff(s) and having appeared for defendant(s); and counsel all having been notified that: (1) a [bench/jury] trial in this matter has been scheduled before the Hon. Esther Salas on [date] ; (2) the pretrial submissions detailed in ¶¶ 2, 18 and 19 below are to be submitted no later than forty-five (45) days prior to trial (or as otherwise ordered by the Court) or they will be deemed waived; and (3) a pretrial housekeeping conference is scheduled before Hon. Esther Salas on [date] ; the following Final Pretrial Order is hereby entered: 1 1. JURISDICTION—[The parties shall identify the basis for the Court’s jurisdiction.] 2. NATURE OF THE ACTION—[The parties shall provide a brief description of the nature and background of the action.] 3. PATENT INFRINGEMENT SUITS ONLY—THE PARTIES’ CONTENTIONS [Plaintiff shall provide an identification and brief description of its contentions, including at least the following information: a. The specific patent claims to be asserted at trial; b. The specific products to be accused of infringement at trial; c. Whether the patentee intends to rely on the doctrine of equivalents to establish infringement for any claim; d. Whether the patentee intends to assert indirect infringement, and, if so, under what theory (i.e., contributory infringement and/or inducement) and as to which claims and products; e. The type of infringement damages to be sought (i.e., lost profits, reasonable royalty, or both); and f. If the accused infringer asserts that one or more of the asserted patent claims is obvious, whether the patentee intends to rely on any “secondary indicia” of non- obviousness to rebut this contention, and if so, which specific indicia. Defendant shall provide an identification and brief description of its contentions, including at least the following information: a. Whether the accused infringer intends to assert that one or more of its products does not infringe one or more asserted claims; and b. Whether the accused infringer intends to assert that one or more of the asserted patent claims is invalid, and, if so, then: 1. The specific patents, publications, devices, or other prior art to be asserted at trial as anticipating or rendering obvious one or more of the asserted claims; 2. Whether the accused infringer will assert at trial that one or more asserted claims is invalid under 35 U.S.C. § 101; and 2 3. Whether the accused infringer will assert at trial that one or more asserted claims is invalid under 35 U.S.C. § 112 and, if so, the specific grounds to be asserted.] 4. PENDING/CONTEMPLATED MOTIONS/TRIAL BRIEFS—Set forth all pending or contemplated motions, whether dispositive or addressed to discovery or the calendar. Also set forth the nature of the motion and the return date. If the Court indicated that it would rule on any matter at pretrial, summarize that matter and each party’s position. NOTE: ALL PRE-TRIAL MOTIONS INCLUDING DAUBERT AND IN LIMINE MOTIONS SHALL BE FULLY BRIEFED AND FILED NO LATER THAN FORTY-FIVE (45) DAYS PRIOR TO TRIAL or AS OTHERWISE ORDERED BY THE COURT. Only those motions listed herein will be entertained prior to trial. 5. STIPULATION OF FACTS—[Set forth in numbered paragraphs all uncontested facts, including all answers to interrogatories and admissions, to which there is agreement among the parties.] 6. STIPULATIONS REGARDING TRIAL PROCEDURES—[The parties shall identify stipulations regarding trial procedures (e.g., exchange of demonstratives, disclosure of deposition designations and objections, etc.)] 7. JUDICIAL NOTICE A. Plaintiff requests that the Court take judicial notice of the following facts: B. Defendant objects to the taking of judicial notice for the following reasons: 8. JUDICIAL NOTICE A. Defendant requests that the Court take judicial notice of the following facts: B. Plaintiff objects to the taking of judicial notice for the following reasons: 9. PLAINTIFF’S CONTESTED FACTS—[Plaintiff must state contested facts separately for each Defendant. Proof shall be limited at trial to the contested facts set forth below. Failure to set forth any contested facts shall be deemed a waiver thereof.] A. Plaintiff intends to prove the following contested facts with regard to liability: B. Plaintiff intends to prove the following contested facts with regard to damages—[This must include each item of damages, the amount of each item, the factual basis for each item and, if punitive damages are claimed, the facts upon which plaintiff will rely to establish punitive damages.] 3 10. DEFENDANT’S CONTESTED FACTS—[Stated separately for each plaintiff. Proof shall be limited at trial to the contested facts set forth below. Failure to set forth any contested facts shall be deemed a waiver thereof.] A. Defendant intends to prove the following contested facts with regard to liability: B. Defendant intends to prove the following contested facts with regard to damages— [This statement must include the factual basis for each defense against plaintiff’s claims for damages.] 11. PLAINTIFF’S WITNESSES—[Aside from those called for impeachment purposes, only the witnesses whose names and addresses are listed below will be permitted to testify at trial. Indicate whether the witness is expected to testify live or by deposition.] A. On liability, plaintiff intends to call the following witnesses who will testify in accordance with the following summaries: B. On damages, plaintiff intends to call the following witnesses who will testify in accordance with the following summaries: C. Defendant objects to the following witnesses for the reasons stated: 12. DEFENDANT’S WITNESSES—[Aside from those called for impeachment purposes, only the witnesses whose names and addresses are listed below will be permitted to testify at trial. Indicate whether the witness is expected to testify live or by deposition.] A. On liability, defendant intends to call the following witnesses who will testify in accordance with the following summaries: B. On damages, defendant intends to call the following witnesses who will testify in accordance with the following summaries: C. Plaintiff objects to the following witnesses for the reasons stated: 13. EXPERT AND SPECIALIZED LAY OPINION WITNESSES—[No expert or specialized lay opinion witness offering scientific, technical, or other specialized knowledge will be permitted to testify at trial unless listed below. A summary of the expert’s qualifications and a copy of his/her report must be provided for the Court’s review at the pretrial conference. Said summary shall be read into the record at the time he/she takes the stand, and no opposing counsel shall be permitted to question his/her qualifications unless the basis of the objection is set forth herein.] A. Plaintiff’s expert and specialized lay opinion witnesses are: B. Defendant’s objections to the qualifications of plaintiff’s experts and specialized lay 4 opinion witnesses are: C. Defendant’s expert and specialized lay opinion witnesses are: D. Plaintiff’s objections to the qualifications of defendant’s experts and specialized lay opinion witnesses are: 14. PLAINTIFF’S DEPOSITIONS—[List, by page and line, all deposition testimony to be offered into evidence. All irrelevant and redundant matters and all colloquy among counsel must be eliminated, unless ruled relevant. Deposition testimony to be used solely for impeachment purposes need not be listed.] A. On liability, plaintiff intends to read into evidence the following: B. On damages, plaintiff intends to read into evidence the following: C. Defendant objects to the deposition testimony set forth above for the reasons stated: 15. DEFENDANT’S DEPOSITIONS—[List, by page and line, all deposition testimony to be offered into evidence. All irrelevant and redundant matters and all colloquy among counsel must be eliminated, unless ruled relevant. Deposition testimony to be used solely for impeachment purposes need not be listed.] A. On liability, defendant intends to read into evidence the following: B. On damages, defendant intends to read into evidence the following: C. Plaintiff objects to the deposition testimony set forth above for the reasons stated: 16. PLAINTIFF’S EXHIBITS—[Except for exhibits the need for which could not reasonably have been foreseen or which are used solely for impeachment purposes, only the exhibits set forth on the exhibit list attached hereto may be introduced at trial. Any objection to an exhibit, and the reason for said objection, must be set forth below or it shall be deemed waived. All parties hereby agree that it will not be necessary to bring in the custodian of any exhibit as to which no such objection is made.] A. Plaintiff intends to introduce into evidence the exhibits listed on the attached exhibit list (list by number with a description of each exhibit): B. Defendant objects to the introduction of plaintiff’s exhibits (set forth number of exhibit and grounds for objection): 17. DEFENDANT’S EXHIBITS—[Except for exhibits the need for which could not reasonably have been foreseen or which are used solely for impeachment purposes, only the exhibits set forth on the exhibit list attached hereto may be introduced at trial. Any objection to an exhibit, 5 and the reason for said objection, must be set forth below or it shall be deemed waived. All parties hereby agree that it will not be necessary to bring in the custodian of any exhibit as to which no such objection is made.] A. Defendant intends to introduce into evidence the exhibits listed on the attached exhibit list (list by number with a description of each exhibit): B. Plaintiff objects to the introduction of defendant’s exhibits (set forth number of exhibit and grounds for objection): [COPIES OF EXHIBITS ARE TO BE MADE FOR OPPOSING COUNSEL, AND (3) THREE BENCH BOOKS OF EXHIBITS ARE TO BE DELIVERED TO THE JUDGE IN ACCORDANCE WITH “JUDGE ESTHER SALAS’S GENERAL PRETRIAL AND TRIAL PROCEDURES.”] 18. PLAINTIFF’S LEGAL ISSUES—[Any issue not listed shall be deemed waived.] 19. DEFENDANT’S LEGAL ISSUES—[Any issue not listed shall be deemed waived.] 20. MISCELLANEOUS—[The parties must indicate any other matters that require action by, or should be brought to the attention of, the Court.] 21. JURY TRIALS—[Litigants should send to Chambers two (2) courtesy copies of the following materials. Submissions should be tabbed and spiral bound (not Velo-bound). The materials should also be sent to the Court on a disc in Microsoft Word format. These materials are due no later than forty-five (45) days prior to trial (or as otherwise ordered by the Court). For clarification on the below, the parties are required to consult Part II.I.1-4 of “Judge Esther Salas’s General Pretrial and Trial Procedures.”] A. Each side shall submit to the Court and to opposing counsel a trial brief or memorandum in accordance with Local Civil Rule 7.2, with citations to authorities and arguments in support of its position on all disputed issues of law. B. The parties are required to confer and submit a combined draft of the proposed jury instructions, including columns indicating disagreements. C. Any hypothetical questions to be put to an expert witness on direct examination shall be submitted to the Court and to opposing counsel. D. Counsel shall jointly submit to the Court a single set of proposed voir dire questions as to which the parties are in agreement, not to exceed 30 questions. Parties must also identify any disputed questions in column format. E. Counsel shall jointly submit to the Court a single proposed special verdict sheet. 6 F. The parties shall prepare a joint trial exhibit list containing a description of all exhibits. The list shall be divided into three columns: the first column will identify the exhibit; the second column will state the opponent’s objection and contain a short statement citing the relevant rule and/or concept that supports the objection; the third column will contain the proponent’s rationale for admissibility. The exhibits themselves are to be pre-marked and must include exhibit stickers. Additionally, the parties must prepare three copies of the bench book containing the exhibits that they expect to use. G. The parties shall identify any equitable, legal, or other issues that they contend should be decided by the Court, through a bench trial or otherwise. 22. NON-JURY TRIALS—[The following materials should be submitted to the Court in the same manner as materials for jury trials, listed above. The materials must be submitted no later than forty-five (45) days prior to trial or as otherwise ordered by the Court]: A. Each side shall submit to the Court and opposing counsel a trial brief or memorandum in accordance with Local Civil Rule 7.2 with citation to authorities and arguments in support of its position on all disputed issues of law. B. Following a non-jury trial, proposed findings of fact and conclusions of law must be submitted to the Court within one week of the close of trial (or as otherwise ordered by the Court). Submitting litigants must include specific reference to testimonial or documentary evidence in support of the proposals. C. If any hypothetical questions are to be put to an expert witness on direct examination, they shall be submitted to the Court and opposing counsel. 23. TRIAL COUNSEL—[Each party shall identify the names, law firms, addresses, telephone numbers, and email addresses for the attorneys who will try the case on behalf of that party.] 24. BIFURCATION—[If any party intends to request phasing, bifurcation, or other procedure concerning the trial length or ordering of evidence, that party shall include any such request herein and explain the basis for the request.] 25. ESTIMATED LENGTH OF TRIAL—[Each party shall specify the number of hours that it contends is appropriate for each party for each of the following: (a) voir dire; (b) opening statements; (c) presentation of evidence for liability; (d) presentation of evidence for damages; (e) closing arguments.] 7 AMENDMENTS TO THIS PRETRIAL ORDER WILL NOT BE PERMITTED UNLESS THE COURT DETERMINES THAT MANIFEST INJUSTICE WOULD RESULT WERE THE AMENDMENT DISALLOWED. THE COURT MAY FROM TIME TO TIME SCHEDULE CONFERENCES AS MAY BE REQUIRED EITHER ON ITS OWN MOTION OR AT THE REQUEST OF COUNSEL. ___________________________________ (Attorney for Plaintiff) ___________________________________ (Attorney for Defendant) Dated: ___________________________________ United States Magistrate Judge (EXHIBIT LIST FOLLOWS) 8

=== Sample Template for Disputes Using Column Format ===

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY UNITED STATES OF AMERICA, v. DEFENDANT Criminal Action No. XX-XXXX (ES) PROPOSED JURY CHARGE RICO – “Enterprise” Defined Generally (Undisputed) The first element that the government must prove beyond a reasonable doubt for the offense charged in Count (no.) is the existence of an “enterprise,” as alleged in the indictment. An enterprise may be: (1) a legal entity, such as a corporation or partnership (or sole proprietorship) (or association); or (2) a (union or) group of individuals associated in fact although not a legal entity. In this case, the enterprise alleged in the indictment is (describe the type of enterprise and the specific enterprise alleged in the indictment). The term enterprise includes both legitimate enterprises and also illegitimate or completely illegal enterprises. Thus, the enterprise need not have a purpose other than the commission of or facilitating the commission of the racketeering activity alleged in the indictment. 1 RICO – “Activity” Defined Generally (Dispute) Government’s Proposed Jury Charge Defendant’s Proposed Jury Charge “Racketeering activity,” as defined by the RICO statute, includes any acts that involve or that may be charged as any of a wide range of crimes under state or federal law. As I have instructed you, Count 1 of the Indictment alleges that defendant committed seven acts of racketeering activity, each of which is set forth in Count 1 of the Indictment in Paragraph 77. I will now instruct you on the law that applies to each of those racketeering acts.1 “Racketeering activity,” as defined by the RICO statute, includes any acts that involve or that may be charged as any of a wide range of crimes under state or federal law.2 As I have instructed you, Count 1 of the Indictment alleges that defendant committed seven acts of racketeering activity, each of which is set forth in Count 1 of the Indictment in Paragraph 77. I will now instruct you on the law that applies to each of those racketeering acts,. and you must reach a unanimous decision as to whether or not the defendant is guilty of each of those racketeering acts. 1 2 Third Circuit Model Jury Charge—RICO. United States v. John Doe, 123 F.3d 456, 789 (3d Cir. 2015). 2