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Revised March 2026 MEMORANDUM TO: Counsel and Parties in Civil Cases FROM: Judge John L. Kane RE: ______________________________________________________________________________ Pretrial and Trial Procedures – CIVIL CASES TABLE OF CONTENTS I. PURPOSE ................................................................................................................................. 3 II. GENERAL PROCEDURES .................................................................................................... 3 A. Applicable Rules .................................................................................................................. 3 B. Federal Rules of Civil Procedure ......................................................................................... 3 C. Communications with Chambers ......................................................................................... 3 D. Magistrate Judges ................................................................................................................ 4 E. Settlements ........................................................................................................................... 4 III. SCHEDULING AND DISCOVERY CONFERENCE .......................................................... 4 IV. MOTIONS .............................................................................................................................. 5 A. Duty to Confer in Advance of Motion ................................................................................. 5 B. Certification Regarding the Use of Generative Artificial Intelligence (GenAI) .................. 5 C. Format for Motions .............................................................................................................. 6 D. Index of Attached Exhibits .................................................................................................. 6 E. Incorporation by Reference .................................................................................................. 6 F. Deadlines .............................................................................................................................. 7 G. Untimely or Noncomplying Motions, Objections, Responses, or Replies .......................... 7 H. Motions for Extensions of Time .......................................................................................... 7 I. Motions to Continue .............................................................................................................. 7 J. Motions for Default Judgment .............................................................................................. 7 K. Motions for Temporary Restraining Orders ........................................................................ 8 L. Motions for Protective Orders and Motions to Restrict ....................................................... 8 M. Motions to Dismiss ............................................................................................................. 8 N. Motions for Summary Judgment or Partial Summary Judgment ........................................ 8 1 O. Motions to Exclude Expert Testimony .............................................................................. 11 P. Awards of Reasonable Expenses and Attorney Fees ......................................................... 11 Q. Proposed Orders ................................................................................................................. 11 R. Oral Argument on Motions ................................................................................................ 12 S. Timing of Motions .............................................................................................................. 12 V. IN-COURT PROCEEDINGS ................................................................................................ 12 A. Courtroom Protocol ........................................................................................................... 12 B. Record of Proceedings ....................................................................................................... 12 C. Exhibits .............................................................................................................................. 13 D. Timelines and Other Demonstrative Aids ......................................................................... 14 E. Witnesses ............................................................................................................................ 14 F. Use of Deposition Testimony ............................................................................................. 15 G. Special Equipment (Audio/Video) ..................................................................................... 15 H. Time Limits........................................................................................................................ 16 VI. PRETRIAL PROCEEDINGS .............................................................................................. 16 A. Pretrial Order and Conference ........................................................................................... 16 B. Motions in Limine .............................................................................................................. 17 C. Jury Instructions and Verdict Forms .................................................................................. 17 D. Trial Briefs ......................................................................................................................... 18 E. Final Trial Preparation Conference .................................................................................... 18 F. Pretrial Deadlines ............................................................................................................... 18 VII. JURY TRIALS .................................................................................................................... 19 2 I. PURPOSE The purpose of these practice standards is to facilitate “the just, speedy, and inexpensive determination of every action and proceeding,” as mandated by Federal Rule of Civil Procedure 1. II. GENERAL PROCEDURES A. Applicable Rules Those appearing in the District Court in civil cases must know and follow: 1) The Federal Rules of Civil Procedure; 2) The Federal Rules of Evidence; 3) The Local Rules of Practice of the United States District Court for the District of Colorado; 4) The Electronic Case Filing Procedures (Civil Cases); and 5) These Practice Standards. The Local Rules of Practice and Electronic Case Filing Procedures are available on the District of Colorado website at www.cod.uscourts.gov and from the Clerk’s Office. These practice standards and my forms are located under my tab on the District of Colorado website at http://www.cod.uscourts.gov/JudicialOfficers/SeniorArticleIIIJudges/HonJohnLKane.aspx [hereinafter “my website”]. B. Federal Rules of Civil Procedure Please consider the Federal Rules of Civil Procedure as if they are sitting on a three- legged stool consisting of 1) Notice Pleadings; 2) Liberal Discovery, and 3) the Pretrial Order. Without all three, the system collapses. C. Communications with Chambers 1. Chambers staff cannot give legal advice or grant oral requests over the telephone. Please do not ask to speak directly with law clerks about pending matters unless previously authorized or invited to do so. If after fully and carefully reading these Practice Standards and the Local Rules of Practice, you still have a question about procedure, you may contact my chambers at 303-844-6118 or [email protected]. 2. Ex parte communications: Unless specifically authorized for scheduling or other purposes, neither counsel nor pro se litigants may communicate about a case by letter, email, or telephone to the court. All communications must be made in the form of a motion, brief, notice, or status report, and must be served on all opposing counsel and any pro se parties. 3 3. For information about courtroom technology, trial preparation, submission of trial exhibits, and courtroom protocol, please contact my courtroom deputy clerk, Bernique Abiakam, at [email protected]. D. Magistrate Judges If at any point during the pendency of a case the parties would like referral to a magistrate judge for mediation or settlement purposes, they need only notify my chambers, and the case will be referred for that purpose. E. Settlements The parties should provide prompt notice (the same or next business day) of any settlement or partial settlement specifying the claim or defense settled, the parties affected, and the claims defenses, and parties which remain in controversy, as well as the time and date previously set for hearing or trial. Previously set conferences or deadlines (including trial) will not be vacated without the filing of dismissal papers, unless otherwise ordered. III. SCHEDULING AND DISCOVERY CONFERENCE 1. Once responsive pleadings have been filed and any initial motions to dismiss have been ruled on, the court will set a scheduling conference pursuant to Federal Rule of Civil Procedure 16 and D.C.COLO.LCivR 16.1 and 16.2. 2. Unless otherwise ordered, no formal discovery shall be undertaken by the parties until they meet and attempt to agree on the stipulated Scheduling and Discovery Order. See Fed. R. Civ. P. 26(f). This Rule 26(f) meeting shall be held at least 21 days before the proposed Scheduling and Discovery Order is due to be submitted. The parties shall exchange the disclosures required by Federal Rule of Civil Procedure 26(a)(1) at or within 14 days of their Rule 26(f) meeting. The parties are not to file any disclosure statements with the court. 3. The stipulated Scheduling and Discovery Order shall be submitted for my approval no later than five days before the Scheduling Conference or as otherwise ordered. It is the responsibility of the plaintiff’s counsel to schedule meetings and then file and submit the proposed Order. If the parties agree, the plaintiff may delegate the filing responsibility to the defendant. The Scheduling and Discovery Order shall be in the form specified on my website and shall include the signatures of counsel and pro se litigants. Please note that the stipulated Scheduling and Discovery Order template on my website in some instances requires more or different information than that required by D.C.COLO.LCivR 16.2. The proposed Scheduling and Discovery Order should be filed in CM/ECF and submitted electronically in editable Word format to my chambers at [email protected]. 4. As provided in the Local Rules, counsel and pro se parties should try in good faith to agree upon the matters addressed in their proposed Scheduling and Discovery Order. If there are 4 any areas of disagreement, the parties should make a brief statement in the proposed Order concerning the basis for disagreement. In suggesting deadlines for discovery, counsel must be prepared to justify each request at the Scheduling Conference, being mindful of their obligations under Federal Rule of Civil Procedure 1. The parties should expect that I will discuss these and any other issues affecting the management of the case at the Scheduling Conference and that I may modify their proposed Order. 5. At the Scheduling Conference, I want to learn what the case is about in counsel’s own words, I want to learn what the costs of litigation will be and what steps the parties are taking to reduce costs. I want the parties’ best estimate of when in the course of pretrial it makes sense to discuss settlement and whether a magistrate judge can assist in that endeavor or whether a private mediator will be selected. I want to learn if experts will be retained, the subject area of expertise and the proposed methodology to be used by each such expert. IV. MOTIONS A. Duty to Confer in Advance of Motion I require complete compliance with D.C.COLO.LCivR 7.1(a), which imposes a duty to confer in advance of filing a motion. Before filing any motion, status report, statement, or other paper that includes a request for relief, the filing party shall have conferred or made a reasonable, good-faith effort to confer with opposing counsel to resolve the issue in full or in part. Parties are encouraged to discuss and agree upon collateral matters such as proposed briefing schedules, requests for hearing, sub-issues to which they may be able to stipulate, and other matters that can be resolved through the extension of mutual courtesies or other demonstrations of civility. Filings shall include a statement describing counsel’s efforts in this regard and the matters on which agreement was reached. Certification that a telephone call or email was directed to opposing counsel fewer than 24 hours before the paper was intended to be filed and “no response” was received is per se NOT a good-faith effort. Unopposed motions shall be designated as required by D.C.COLO.LCivR 7.1(c). B. Certification Regarding the Use of Generative Artificial Intelligence (GenAI) In every filing with the Court which is prepared—in whole or in part—using GenAI (such as ChatGPT, Harvey.AI, Google Bard, etc.), the preparer of the filing shall include a certification identifying the portion of the filing that was prepared with the use of GenAI and affirming that any language drafted by GenAI (even if later edited by a human being) was personally reviewed by the filer or another human being for accuracy using print reporters or traditional legal databases and attesting that the legal citations are to actual existing cases or cited authority. To the extent GenAI is used in the preparation of a filing, Federal Rule of Civil Procedure 11 remains applicable, as does 28 U.S.C. § 1927. 5 C. Format for Motions 1. Motions and all supporting arguments should be contained in a single document. Motions with separately filed briefs or memoranda are strongly discouraged. 2. It is not possible to predetermine the length of a good brief. Accordingly, I do not adhere to any prescribed page limits for briefs. Counsel are expected to exercise good judgment. Consider, however, that the longer it takes to make a point, the less likely it is to be understood, and I will disregard string citations and repetitive arguments. Any case, statute, or article cited in a brief as authority is accepted as certified by counsel’s signature that such has been read and known not to have been overruled, modified, or amended. Furthermore, counsel should bear in mind that sarcastic, rude, or ungrammatical briefs are not persuasive and often counterproductive. 3. I prefer the body of the text and the footnotes to be in Times New Roman 12-point font. The page numbers of motions and briefs should correspond with those given by CM/ECF, i.e., the numbering should start with “1” and continue uninterrupted throughout the document. 4. Responses and replies shall identify by title and CM/ECF docket number the pleading or motion to which they relate. D. Index of Attached Exhibits 1. Each filing with one or more exhibits should contain an index of the exhibit(s) that accompany the filing as the final page of the filing (i.e., after the Certificate of Service). Then, each exhibit should be attached to the actual filing in CM/ECF. This includes any declaration in support of the filing, even if the declaration has its own attachments. In the case of such declarations, the declaration should be a single exhibit to the filing in CM/ECF and each of the attachments to the declaration should be its own exhibit to the filing. For example, the Exhibit List on the last page of the filing would state: Ex. 1: Decl. of _____, dated ___ Ex. 2: Att. 1 to Decl. of _____, Email from ___ to ___, dated ___ Ex. 3: Att. 2 to Decl. of _____, . . . . 2. Restricted exhibits may necessarily be filed as separate entries in CM/ECF. 3. If a document has already been filed in the docket, the previous entry should be cited and the document should not be re-filed unless there is a compelling reason for doing so. E. Incorporation by Reference I do not allow the incorporation of motions or arguments by reference. I permit only the adoption by reference of a statement in a pleading as contemplated by Federal Rule of Civil Procedure 10(c) and documents specifically identified as pleadings in Rule 7(a). 6 F. Deadlines See D.C.COLO.LCivR 7.1 and D.C.COLO.LCivR 56.1 for applicable time limits for filing response and reply briefs. The computation of time is controlled by Federal Rule of Civil Procedure 6. G. Untimely or Noncomplying Motions, Objections, Responses, or Replies 1. Pursuant to D.C.COLO.LCivR 7.1(d), a motion shall not be included in a response or reply to the original motion. All requests for the court to take any action, make any type of ruling, or provide any type of relief must be contained in a separate, written motion. This paragraph applies as well to requests for attorney fees or other sanctions. 2. No surreply or supplemental briefs shall be filed without leave of the court. 3. Motions that are untimely, noncomplying, or filed without a certification pursuant to D.C.COLO.LCivR 7.1(a) may be denied without prejudice or stricken sua sponte. Untimely or noncomplying objections, responses, or replies may be stricken or ignored. H. Motions for Extensions of Time Motions for extension of time require a showing of good cause, which must be established with particularity. Any motion for extension of time shall be filed as far in advance of the deadline as possible, and no later than one business day before the date the filing would otherwise be due. I. Motions to Continue Motions to continue (including motions to vacate or reset) hearings and trials will be determined pursuant to D.C.COLO.LCivR 6.1 and 7.1; these Practice Standards; and Rogers v. Andrus Transportation Services, 502 F.3d 1147, 1151 (10th Cir. 2007). Motions to continue should be made without delay at the earliest possible opportunity. Stipulations for continuance are not effective unless and until approved by the court. J. Motions for Default Judgment 1. For default judgment to enter, the Clerk of the Court must first enter default against the defaulting party. If the Clerk has not entered the party’s default, the party seeking default judgment must move for the entry of default under Federal Rule of Civil Procedure 55(a). The motion for default must establish valid service on the particular party in accordance with Federal Rule of Civil Procedure 4. 2. Once default has entered, a motion for default judgment may be filed under Federal Rule of Civil Procedure 55(b). The motion shall indicate whether a hearing is required, and a proposed form of judgment should be attached, reciting the language requested to be included in the body of the judgment. 7 K. Motions for Temporary Restraining Orders 1. Conferral. To minimize delays, I strongly encourage counsel to confer, in advance, with the opposing party’s counsel (or, if not yet represented, with the party itself). 2. Ex Parte Motions. As a general rule, ex parte motions for issuance of temporary restraining orders will be granted only upon strict compliance with Federal Rule of Civil Procedure 65(b) and (c). In appropriate circumstances, I may deny the motion, set a hearing, or issue an order to show cause to the party to be enjoined. L. Motions for Protective Orders and Motions to Restrict Absent good cause, the parties shall use my form Stipulated Protective Order regarding the treatment of confidential information exchanged in discovery. Note that this form Order requires the parties and their counsel to obtain affidavits from recipients before disclosing confidential information to others and imposes additional requirements before confidential information may be filed as restricted. These provisions or their equivalent must be included in any proposed protective order submitted for my approval. Any motion to restrict or otherwise seal the contents of a filing must comply with the requirements set forth in my form Protective Order. The form Order is available on my website. Please be aware that restricted filings are disfavored except in the limited circumstances authorized by law. M. Motions to Dismiss 1. Motions filed pursuant to Federal Rule of Civil Procedure 12(b) are discouraged if the defect is correctable by an amended pleading. Counsel should confer before the filing of the motion if the deficiency is correctable by amendment and should exercise their best efforts to stipulate to appropriate amendments. For Rule 12(b) motions, the following format should be used: 2. For each claim for relief that the movant seeks to have dismissed, clearly enumerate each element the movant contends must be alleged but was not. 3. If the respondent contends that a sufficient factual allegation has been made in the complaint for a particular element, the respondent should identify the page and paragraph containing the required factual allegation. 4. If matters outside the pleadings are submitted in support of or in opposition to a Rule 12(b) motion, the party should discuss whether the 12(b) motion should be converted to a summary judgment motion. N. Motions for Summary Judgment or Partial Summary Judgment Motions seeking relief pursuant to Federal Rule of Civil Procedure 56 are governed by D.C.COLO.LCivR 56.1. Deadlines will be strictly applied. Upon receipt of a Motion for 8 Summary Judgment filed in accordance with these instructions, I generally adhere to the briefing schedule set forth in D.C.COLO.LCiv.R 56.1 (i.e., 21 days for a response, 14 days for a reply) but may order a shorter or longer briefing schedule as I deem appropriate. In every case, unless otherwise ordered, the movant need not seek permission to file a reply brief. Any party submitting a motion for summary judgment should be familiar with Professor Arthur R. Miller’s article The Pretrial Rush to Judgment: Are the “Litigation Explosion,” “Liability Crisis,” and Efficiency Clichés Eroding our Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. Rev. 982, 1132 (June 2003). All summary judgment briefing submitted by the parties must comply with the following requirements: 1. In a section of the motion styled “Statement of Undisputed Material Facts,” the movant shall set forth in simple, declarative sentences, separately numbered and paragraphed, each material fact that the movant believes is not in dispute and that supports the movant’s claim that the movant is entitled to judgment as a matter of law. 2. Each separately numbered and paragraphed fact must be accompanied by a specific reference to evidence in the record that establishes that fact. General references to pleadings, depositions, or documents are insufficient if the document is over one page in length. A “specific reference” means: a. In the case of papers filed with the court, the title of the paper, the date on which it was filed or served, and a specific paragraph or page and line number; or, if the paper is attached to the motion, the paragraph or page and line number; b. In the case of interrogatories or requests for admission (the pertinent parts of which must be filed with the motion), the number of the interrogatory or request; c. In the case of depositions or other documents bearing line numbers (pertinent parts of which must be filed with the motion), the specific page and line(s) establishing the fact; d. In the case of affidavits submitted in support of the motion, the specific paragraph number establishing the fact; and e. In the case of other evidence not numbered by paragraph, line, or page, a reference that points to the fact without requiring review of the entire document. The effort at specificity may be made by highlighting, manual underscoring, or pagination supplied by the movant. 3. Only if the nature of the material fact does not permit a specific reference (e.g., “The contract contains no provision for termination.”) is a general reference sufficient. 4. Any party opposing the motion for summary judgment shall in a section of the response 9 styled “Response to Statement of Undisputed Material Facts,” admit or deny the asserted material facts set forth by the movant. The admissions or denials shall be made in paragraphs numbered to correspond to the movant’s paragraph numbering. Any denial shall be accompanied by a brief factual explanation of the reason(s) for the denial and a specific reference to evidence in the record supporting the denial. Formulaic explanations repeatedly incanted are distracting and unpersuasive and are therefore discouraged. Stipulating to facts not reasonably in dispute strengthens credibility and is encouraged. 5. If the nonmovant believes there are additional disputed material questions of fact not adequately addressed in its “Response to Statement of Undisputed Material Facts” (e.g., disputed facts concerning an affirmative defense), the nonmoving party shall, in a separate section of its brief styled “Statement of Additional Facts,” set forth in simple, declarative sentences, separately numbered and paragraphed, each additional material disputed fact that it believes undercuts the movant’s claim of entitlement to judgment as a matter of law. Each separately numbered and paragraphed fact shall be accompanied by a specific reference to evidence in the record that establishes the fact or demonstrates it is disputed. 6. In its reply brief (if any) the movant shall: a. In a separate section styled “Reply Concerning Undisputed Material Facts,” set forth any factual reply it cares to make to the nonmovant’s “Response to Statement of Undisputed Facts.” This reply shall be made in separate paragraphs numbered according to the original motion and the opposing party’s response and shall be supported by specific references to evidence of record. b. In a separate section styled “Response Concerning Additional Facts,” admit or deny any of the asserted material facts set forth by the nonmovant in its “Statement of Additional Material Facts.” The admissions or denials shall be made in paragraphs numbered to correspond to the nonmovant’s paragraph numbering. Any denial shall be accompanied by a brief factual explanation of the reason(s) for the denial and a specific reference to evidence in the record supporting the denial. 7. The sole purpose of these procedures is to establish facts and determine whether any of them are in dispute. Legal argument is not permitted here and should be reserved for separate portions of the briefs. If a party believes an undisputed fact is immaterial, for example, the fact should be admitted and the party’s belief regarding its lack of materiality should be expressed in the portion of its brief devoted to legal argument. If, on the other hand, a party believes the asserted fact is simply not supported by the referenced evidence, this factual argument should be included in the party’s response to the allegedly undisputed fact. 8. Absent leave of the court, which will only be granted in exceptional circumstances, a party may only file one motion for summary judgment. 9. Failure to follow these procedures may result in an order striking the motion or brief. 10 O. Motions to Exclude Expert Testimony A party objecting to the admissibility of opinion testimony by an expert witness shall file a written motion seeking its exclusion. The failure of an opponent to file such a motion, however, does not relieve the proponent of its burden to show that the proffered testimony is admissible at trial. The deadline for filing motions objecting to any testimony of an expert witness based on the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and their progeny will be after the Pretrial Conference. However, in many cases, it may be prudent to file such motions before or at the time motions for summary judgment are filed. Any expert motion not specifically identified in the Pretrial Order and filed by the deadline will be deemed waived, unless otherwise ordered. All motions filed under Federal Rule of Evidence 702 shall include the expert witness’s report as an exhibit, and shall identify with specificity each opinion the moving party seeks to exclude. The motion shall also identify the specific ground(s) on which each opinion is challenged, e.g., relevancy, sufficiency of facts and data, or methodology. Upon the filing of a motion, I may, in my discretion, set a hearing to determine whether the challenged opinions are admissible. The setting of such hearing does not obviate the need for opposing counsel to respond to such motion. If such a hearing is ordered, the expert witness whose testimony or opinion is proffered shall be present at the hearing. P. Awards of Reasonable Expenses and Attorney Fees If I award reasonable expenses and/or attorney fees in connection with a motion or other action, I generally use the following procedure. First, the party receiving the award shall confer with the paying party in an attempt to reach an agreement on the amount of the award. If the parties are able to reach an agreement, they shall jointly submit a notice setting out the agreed upon amount of the award and briefly summarizing why that amount is believed to be reasonable. If the parties cannot reach agreement, the receiving party shall file a statement itemizing the expenses it incurred with an affidavit attesting to the reasonableness of any attorney fees sought. See D.C.COLO.LCivR 54.3. In its response to that statement, the paying party shall propose the amount of expenses it contends were reasonably incurred. Whichever party’s proposal is furthest from the ultimate amount of reasonable expenses I award will bear the expenses that the other party incurred in litigating the amount of the award. In other words, if I award an amount closer to the receiving party’s proposal, that party will be entitled to the additional amount it expended in filing its Statement of Expenses. And, if I award an amount closer to the paying party’s proposal, that party will be able to deduct the expenses it incurred in responding to the Statement of Expenses from the amount awarded to the receiving party. Q. Proposed Orders All proposed orders should be emailed to [email protected] in editable Word format. The email message should identify the case name and number in the subject line and refer to the underlying motion by CM/ECF document number. 11 R. Oral Argument on Motions While oral argument and/or evidentiary hearings on motions may be requested by a party, they will be scheduled at my sole discretion. Pro forma or generic requests failing to describe reasons for oral argument or an evidentiary hearing will not be considered. S. Timing of Motions Motions filed after 4 p.m. on the last business day of the week will be ruled on no sooner than the next business day. V. IN-COURT PROCEEDINGS A. Courtroom Protocol 1. Courtroom Decorum. Creating a courtroom where all litigants, witnesses, and counsel feel welcome and respected is of utmost importance to this Court. Courtesy and civility to and from one and all is expected. All parties should observe the following courtroom decorum: a. Stand when the Judge enters or leaves the courtroom, when addressing the Court, and when the jury enters or leaves the courtroom; b. Stand at the lectern when speaking, and communicate clearly and distinctly; c. Request permission to approach the bench; and d. Refer to all other persons by their surnames, prefaced by the individual’s title (e.g., Dr., Agent, Officer, Mr. or Ms., etc.). It will not normally be necessary for counsel to approach a witness on the stand. The courtroom deputy, upon request of counsel, will hand a witness an exhibit. 2. Oaths. Please note and advise all persons appearing with you in court, including co-counsel, paralegals, clients, witnesses, and spectators that oath taking is treated formally in my courtroom. The courtroom deputy is directed to administer an oath to a jury or witness ONLY when all other activity in the courtroom has ceased. Attorneys are directed to observe the administration of the oath and to stop all other activity. 3. Cell phones. Cellphones must be placed in “silent mode” or “off” in the courtroom. B. Record of Proceedings 1. The official record of all trials and proceedings will be taken by a court reporter. Before any courtroom proceeding, please provide the court reporter with your business card or other means of contacting you, as well as a glossary of unusual or technical terminology, difficult- to-spell names, and/or acronyms. Requests for realtime or daily or hourly copy should be communicated to the reporter as soon as practicable, no later than two weeks before the proceeding. 12 2. Transcripts of any court proceeding can be ordered directly from the court reporter sitting at the particular hearing. If you do not remember the reporter’s name, consult the Minute Entry for that proceeding. Court reporters’ contact information can be found at www.cod.uscourts. gov/AbouttheDistrict/ContactUs.aspx#report. C. Exhibits 1. When to File Exhibit List. For motions hearings, exhibit lists shall be filed via CM/ECF two business days before the hearing. For trials, parties shall file their final unified exhibit list via CM/ECF and email an editable Word version to [email protected] no later than seven days before the Final Trial Preparation Conference. 2. Format of Exhibit List. Parties must use the form Exhibit List available on my website, indicating which exhibits are stipulated and which are not and the basis for any objections. Counsel shall stipulate to the admissibility of exhibits to the maximum extent possible. A failure to stipulate to authenticity of any particular exhibit must set forth specific reasons for the objection. 3. Marking Exhibits. Each party must pre-mark all exhibits that will be used or identified in a hearing or trial. Each exhibit shall be marked with its number under the unified system. Exhibits not pre-marked or exchanged before a hearing or trial may not be admitted. The plaintiff’s exhibits should be marked with numbers starting at 1. The defendant’s exhibits should be marked with numbers starting with where the plaintiff’s proposed exhibits leave off. It matters not whether the exhibit is offered by the plaintiff or defendant; the point is to avoid duplication and confusion. There is no need for a party to seek to admit exhibits offered by another party and admitted by the court. Once an exhibit is marked, that number will be permanent and no new additional number(s) should be used to mark it. Each document exhibit shall be paginated, including any attachments thereto. 4. Paper Exhibits. Paper copies of exhibits shall be submitted in 3-ring binders, which shall be labeled with the following information: (i) caption, (ii) nature of proceeding, (iii) scheduled date and time, and (iv) “original” or “copy.” Paper exhibits, including the set of original exhibits, shall bear extended tabs showing the number of the exhibit. If exhibits are not bound and labeled properly, the hearing or trial may be delayed or continued until they are. 5. Number of Sets of Exhibits. a. Original Exhibits: At the start of every trial or evidentiary hearing, the parties shall submit a set of original exhibits (labeled as “original”) to my courtroom deputy. The “original” set will be for the witness stand and will be the only set that goes to the jury room during deliberations in a jury trial. b. Copies of Exhibits: In addition to the original exhibit binder(s), the parties shall provide copies of exhibits to the court as follows: i. In addition to the original set of exhibits, each party should provide three separate 13 sets of the exhibits. These copies shall be submitted in the same format as the original exhibits. One set is for opposing counsel, the others are for the court.1 ii. The parties shall also submit their exhibits on a flash drive for the court reporter. If an exhibit cannot be presented in digital form on a flash drive, the party shall contact the court reporter to discuss an alternate format. D. Timelines and Other Demonstrative Aids 1. In cases in which a sequence of events is relevant or helpful to deciding any issue presented, the parties shall prepare a stipulated demonstrative that sets out the timeline of these events. If any element of this timeline is disputed, the demonstrative should so indicate. 2. The parties are also encouraged to submit similar demonstrative aids for reference during the course of their presentations if such would assist the court or the jury. 3. The parties should provide three total copies of any demonstrative aid, unless it is prohibitively expensive or difficult to make copies of a particular demonstrative aid. Demonstrative aids will not be provided to the jury during its deliberations, unless otherwise ordered. E. Witnesses 1. When to File Witness List. For motions hearings, witness lists should be filed via CM/ECF two business days before the hearing. For trials, the parties shall file their final witness lists via CM/ECF no later than seven days before the Final Trial Preparation Conference. 2. Format of Witness List. The parties should use the form Witness List available on my website. It should list the witnesses to be called by each party in its case in chief and set forth the best estimate of the time required for that witness for direct examination. It should also include potential rebuttal witnesses. This witness list is counsel’s representation, upon which opposing counsel may rely, that the witnesses listed will be present and available for testimony. The witness list should note any testimony that is expected to occur via video teleconferencing, but such testimony will not be permitted, unless a related motion is made and granted. The witness list must include witnesses whose testimony is to be presented by way of deposition. 3. Witness Sequestration. Upon motion, witnesses will be sequestered until a particular witness’s testimony is complete. Each party may retain one advisory witness throughout the trial. If an expert witness’s testimony is based in part on observations at trial, the need for the witness’s presence must be disclosed not later than the Final Trial Preparation Conference. 1 For trials, one court copy of the parties’ proposed exhibits shall be delivered to my chambers, and a copy to opposing counsel, no later than seven days before the Final Trial Preparation Conference. The original set and additional copy of the final exhibits may be brought to the courtroom the first morning of the trial, along with exhibits needing to be replaced in the copies already provided based on rulings from the Final Trial Preparation Conference. 14 F. Use of Deposition Testimony 1. The use of depositions in court proceedings is governed by Federal Rule of Civil Procedure 32, together with this practice standard. 2. At the beginning of a hearing or trial, a party shall deliver to the courtroom deputy the original transcripts of all depositions the party intends to or may use, whether for impeachment or otherwise. 3. For depositions to be used at a hearing, counsel shall exchange with each other their designations of anticipated deposition and videotape deposition testimony at least seven days before the hearing. Objections shall be filed at least two business days before the hearing. If objections are made, the offering party should provide the court with a notebook containing the deposition transcripts with tabs that identify the relevant testimony at least two business days before the hearing. 4. If the parties intend to offer deposition testimony in lieu of a live witness at trial, counsel shall exchange with each other their designations of anticipated deposition and video deposition testimony. Pursuant to Federal Rule of Civil Procedure 26(a)(3)(B), these disclosures must be made at least 30 days before trial. After the original exchange, counsel shall notify opposing counsel of any counter-designated deposition testimony, exchange objections to all designated testimony, and make a good-faith attempt to resolve such objections. Objections to any portion of a proposed deposition, including a videotaped deposition, shall be filed before the Final Trial Preparation Conference. Any objectionable portion of the deposition shall be identified with specificity, e.g., by page and line. The parties shall also submit the transcript(s) of the designated deposition testimony to my chambers at [email protected] before the Final Trial Preparation Conference. In the transcript(s), plaintiff’s designations should be highlighted in yellow, defendant’s designations should be highlighted in blue, and testimony that is the subject of an objection should be highlighted in red. I will make every effort to resolve objections at the Final Trial Preparation Conference to speed things along and to facilitate any necessary redaction. 5. For jury trials, parties shall provide a person to read the deposition answers. 6. For bench trials, depositions will not usually be read in open court. Instead, I will read them before trial in chambers in any requested sequence. The offering party shall provide the relevant deposition transcript as an exhibit with its designated portions highlighted. If both parties seek to use portions of the same deposition transcript, they shall confer beforehand and the exhibit provided shall contain the plaintiff’s portions highlighted in yellow and the defendant’s in blue. G. Special Equipment (Audio/Video) The court has audio-visual and other special equipment that may be used by the parties. 15 Notify my courtroom deputy, Bernique Abiakam at Bernique [email protected], no later than 14 days before a hearing or trial regarding use of such equipment or any request to bring your own equipment through security for use in the courtroom. You may schedule a time with Ms. Abiakam to visit the courtroom and run through your technology needs. H. Time Limits Unless specified in an order setting a matter for hearing, there are no time limits imposed. Brevity is encouraged. VI. PRETRIAL PROCEEDINGS A. Pretrial Order and Conference 1. Preparation for Pretrial Conference. a. When the case is at issue, meaning discovery is completed and all motions that might dispose of the case have been decided, counsel will be directed to call in to set a date for the Pretrial Conference. b. At least 14 days before the scheduled date of the Pretrial Conference, counsel shall meet and confer to jointly develop the contents of the proposed Pretrial Order. It is the responsibility of plaintiff’s counsel to schedule meetings and then file and submit the jointly proposed Pretrial Order. If the parties agree, plaintiff may delegate responsibility for filing and submission to defendant. c. Unless otherwise ordered, the parties shall submit their proposed Pretrial Order for the court’s approval no later than seven days before the date of the Pretrial Conference. The proposed Pretrial Order should be filed in CM/ECF and submitted electronically in editable Word format to my chambers at Kane [email protected]. 2. Form of Proposed Pretrial Order. The parties should use the form for Pretrial Orders available on my website. The Pretrial Order will include, among other information: a. a list of witnesses to be called; b. a list of the exhibits to be offered; c. important deadlines for filings; and d. a list of as many stipulations as the parties can achieve. 3. Attendance at Pretrial Conference. As required by Federal Rule of Civil Procedure 16, at least one of the attorneys who will conduct the trial for each of the parties, as well as any unrepresented parties, must attend the Pretrial Conference. 4. Enforceability of Pretrial Orders. I consider Pretrial Orders of utmost importance. The 16 Pretrial Order will supersede the pleadings and control the subsequent course of the case and the trial. B. Motions in Limine Motions in limine are discouraged when the motion is evidence driven and cannot be resolved until evidence is presented at trial. C. Jury Instructions and Verdict Forms 1. I place great emphasis on the preparation of narrative instructions that clearly and accurately inform the jurors of the law that applies in a given case. Jury instructions and verdict forms will be submitted to the court, argued, revised, and approved before trial begins. This practice allows counsel to refer to the instructions in their opening statements, presentation of testimony and exhibits, and closing arguments. In my experience, the repeated use of the instructions results in more efficient trials and informed decision-making by the jury. Please refer to the published articles I have written that are available on my website: Riding Jury Instructions to Victory and Judging Credibility. 2. The parties will jointly submit proposed jury instructions and verdict forms. The parties shall consult and base their instructions on the “Sample Jury Instructions-Civil” on my website. The jury instructions shall identify the source of the instruction and supporting authority, e.g., “Judge Kane’s Sample Instruction 2” or “§ 103, Fed. Jury Practice, O’Malley, Grenig, and Lee (5th ed.).” While the instructions should be tailored to the facts and circumstances of the particular case, parties should, where appropriate, consult the most current editions of the Federal Jury Practice and Instructions and the Colorado Jury Instructions for guidance on instructions relating to substantive legal claims. Please refrain from using legalese where commonly used words are available (e.g., not “prior” or “subsequent” but “before” and “after”). And please use the names of the parties rather than “plaintiff” and “defendant.” 3. To the maximum extent possible, the parties shall agree on one stipulated set of proposed jury instructions. The filed Jury Instructions shall include all of the parties’ stipulated, proposed, and counter-proposed instructions in a single, page-numbered document. Do not submit jury instructions individually or as separate Word files. Each instruction should be numbered (e.g., “Stipulated” or “Government’s [Defendant’s] Proposed” Instruction No. 1) for purposes of making a record at the Final Trial Preparation Conference. A party’s written objection to a proposed instruction should immediately follow the objected to instruction and accompanied by that party’s counter-proposed instruction, if any. A counter- proposed instruction should be a redlined version of the opposing party’s proposed instruction. For examples on how to submit the jury instructions, see Case Nos. 16-cr-00111- JLK, Doc. 81, and 16-cv-02327-JLK, Doc. 148. The parties are expected to work together to craft the instructions and should exchange proposals and attempt to work through objections well before the submission due date. 4. The parties shall submit their instructions and verdict forms via CM/ECF and email them in an editable Word format to Kane [email protected]. 17 5. Stipulated Facts: All stipulations of fact should be formatted as a jury instruction and will be read as any other instruction. D. Trial Briefs Trial briefs identifying issues and legal authority with which you wish me to be familiar before trial may be helpful, as may timelines or glossaries of names, technical terms, abbreviations, or acronyms. Trial briefs must be submitted no later than seven days before the Final Trial Preparation Conference. E. Final Trial Preparation Conference 1. A Final Trial Preparation Conference will be held approximately three to ten days before trial. Counsel who will try the case and a representative for each party must attend. 2. The Pretrial Order should be reviewed by counsel before this final conference because it will control the course of the conference and the trial. If proposed amendments to the Pretrial Order are believed to be necessary, counsel must file a motion requesting such amendments no later than seven days before the Final Trial Preparation Conference. 3. The parties should be prepared to argue any pending motion in limine or other evidentiary objections at the Final Trial Preparation Conference. 4. The jury instructions and verdict form will be reviewed and counsel will be offered the opportunity to make their record on any objections. 5. Timelines, glossaries, or similar demonstrative aids need not be filed in CM/ECF but shall be provided to the court and opposing counsel at the Final Trial Preparation Conference. 6. One court copy of the parties’ proposed exhibits shall be delivered to my chambers, and one copy should be provided to opposing counsel, no later than seven days before the Final Trial Preparation Conference. The original set and additional copy of the final exhibits may be brought to the courtroom the first morning of the trial, along with exhibits needing to be replaced in the copies already provided to the court and opposing counsel based on rulings from the Final Trial Preparation Conference. F. Pretrial Deadlines At the appropriate time, the parties will be directed to contact chambers to set the pretrial and trial dates. The court will then issue an order confirming the trial and Final Trial Preparation Conference dates and specifying deadlines for the tasks to be completed before the Final Trial Preparation Conference. Those deadlines are roughly: 1) Expert Motions will be due 30 days after the Pretrial Conference. 2) Motions in Limine will be due 60 days after the Pretrial Conference. 18 3) The parties’ proposed Jury Instructions and Verdict Forms will be due 90 days after the Pretrial Conference. 4) The deadline for any objections to deposition designations will be seven days before the Final Trial Preparation Conference. 5) The deadline to file Witness and Exhibit Lists and to deliver a copy of the exhibits to the court will be seven days before the Final Trial Preparation Conference. VII. JURY TRIALS 1. Optional Exhibit Notebooks for Individual Jurors. There is equipment available in the courtroom for parties to present exhibits to the jury and the court. However, if the parties so choose, counsel may provide each juror with a notebook containing copies of the parties’ key exhibits to reference in the courtroom during the trial. (Only the original set of exhibits will be available in the jury room during deliberations.) a. If used, counsel should confer and provide one individual juror notebook for each juror that includes selected exhibits of each party. b. Individual juror exhibit notebooks should include only those exhibits previously admitted by stipulation or admitted at the Final Trial Preparation Conference. If additional key exhibits are admitted during the trial, the parties may provide the courtroom deputy with copies of these additional admitted exhibits to be placed in the individual juror exhibit notebooks. 2. Trial Schedule. Counsel will be present to deliver the exhibits and go over any last-minute items with the courtroom deputy at 8:30 a.m. on the first day of trial. The normal trial day begins at 9:00 a.m. and continues until 4:30 p.m. Lunch recess normally is from 12:00 to 1:15 p.m. We may continue beyond 4:30 p.m., but jurors have a right to rely on their being excused for the day no later than 5:00 p.m. For the convenience of everyone, additional recesses are scheduled for 10:15 to 10:30 a.m. and 3:15 to 3:30 p.m. If a recess is needed at any other time, make a request, and it will be granted. 3. Voir Dire. I will conduct a voir dire examination. Counsel will have 30 minutes per side to conduct supplemental voir dire. I do not require counsel to submit voir dire questions in advance, but if they choose to do so, they should be submitted at least two business days before the Final Trial Preparation Conference. No questions concerning jury nullification or agreement or disagreement with any applicable law contained in the instructions or to be offered will be permitted. 4. Note-taking and Questions. Jurors will be permitted to take notes during the trial and to submit questions for the court or for counsel in writing. Copies of juror questions will be provided to counsel and a record made outside the presence of the jury before an answer is given. 19 5. Jury Instructions. I will use the Statement of the Case or Preliminary Instruction during voir dire and will read all but the closing instructions to the jury after they are sworn in. After being sworn in, each individual juror will also receive a notebook of instructions, which (unless otherwise ordered) will be compiled by my staff and may include the forms of verdict. Counsel are encouraged to use the instructions in opening statements and in presenting their case. In addition to any record created at the Final Trial Preparation Conference or other supplemental jury instruction conference(s), counsel will be provided the opportunity to make a record of objections before final arguments and after the close of evidence. 20

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MEMORANDUM Revised March 2026 TO: Counsel/Pro Se Parties in Criminal Cases FROM: Judge John L. Kane RE: ______________________________________________________________________________ Pretrial and Trial Procedures - CRIMINAL CASES TABLE OF CONTENTS I. GENERAL PROCEDURES ..................................................................................................... 3 A. Applicable Rules .................................................................................................................. 3 B. Communications with Chambers ......................................................................................... 3 II. MOTIONS ............................................................................................................................... 3 A. Duty to Confer in Advance of Motion ................................................................................. 3 B. Format for Motions .............................................................................................................. 4 C. Index of Attached Exhibits .................................................................................................. 4 D. Speedy Trial ......................................................................................................................... 5 E. Motions for Extensions of Time ........................................................................................... 5 F. Motions to Continue ............................................................................................................. 5 G. Motions in Limine ................................................................................................................ 5 H. Proposed Orders ................................................................................................................... 5 I. Timing of Motions ................................................................................................................. 6 III. IN-COURT PROCEEDINGS ................................................................................................. 6 A. Courtroom Protocol ............................................................................................................ 6 B. Record of Proceedings .................................................................................................... 6 C. Exhibits ............................................................................................................................... 7 D. Timelines and Other Demonstrative Aids ........................................................................... 8 E. Witness Lists ....................................................................................................................... 8 F. Depositions ........................................................................................................................... 9 G. Special Equipment (Audio/Video) ....................................................................................... 9 IV. TRIALS ................................................................................................................................ 10 A. Trial Preparation Conference ............................................................................................. 10 B. Jury Instructions and Verdict Forms .................................................................................. 10 C. Trial Briefs ......................................................................................................................... 11 1 D. Optional Exhibit Notebooks for Individual Jurors ............................................................ 11 E. Trial Schedule .................................................................................................................... 11 F. Jury Selection ..................................................................................................................... 12 V. PLEA AGREEMENTS.......................................................................................................... 12 A. Right to Trial ...................................................................................................................... 12 B. Treatment of Notice of Disposition ................................................................................... 12 C. Change of Plea Hearing and Plea Documents ................................................................... 12 D. Review of Plea Agreements ............................................................................................... 13 VI. SENTENCING ..................................................................................................................... 14 2 I. GENERAL PROCEDURES A. Applicable Rules Those appearing in criminal cases in the District Court must know and follow: (1) (2) (3) (4) (5) The Federal Rules of Criminal Procedure; The Federal Rules of Evidence; The Local Rules of Practice of the United States District Court for the District of Colorado; The Electronic Case Filing Procedures (Criminal Cases); and These Practice Standards. The Local Rules of Practice and Electronic Case Filing Procedures are available on the District of Colorado website at www.cod.uscourts.gov and from the Clerk’s Office. These practice standards and my specific forms are located under my tab on the District of Colorado website at www.cod.uscourts.gov/JudicialOfficers/SeniorArticleIIIJudges/HonJohnLKane.aspx [hereinafter “my website”]. B. Communications with Chambers 1. Chambers staff cannot give legal advice or grant oral requests over the telephone. Please do not ask to speak directly with law clerks about pending matters unless previously authorized or invited to do so. If after fully and carefully reading these Practice Standards and the Local Rules of Practice, you still have a question about procedure, you may contact my chambers at 303-844-6118 or Kane [email protected]. 2. Ex parte communications: Unless specifically authorized for scheduling or other purposes, neither counsel nor pro se litigants may communicate about a case by letter, email, or telephone to the court. All communications must be made in the form of a motion, brief, notice, or status report, and must be served on all opposing counsel and any pro se parties. 3. For information about courtroom technology, trial preparation, submission of trial exhibits, and courtroom protocol, please contact my courtroom deputy clerk, Bernique Abiakam, at [email protected]. 4. Parties are not to come to chambers unless their visit is authorized by my chambers in advance. II. MOTIONS A. Duty to Confer in Advance of Motion While the local criminal rules do not include an analog to D.C.COLO.LCiv.R 7.1(a) that 3 imposes a duty to confer in advance of filing a motion, I expect parties and counsel in criminal cases to make every effort to do so. By this I mean that, before filing any motion, status report, statement, or other paper that includes a request for relief, the filing party shall have conferred or made a reasonable, good-faith effort to confer with opposing counsel to resolve the issue in full or in part. Parties are encouraged to discuss and agree upon collateral matters such as proposed briefing schedules, requests for hearing, sub-issues to which they may be able to stipulate, and other matters that can be resolved through the extension of mutual courtesies or other demonstration of goodwill. Filings shall include a statement describing counsel’s efforts in this regard and the matters on which agreement was reached. Certification that a telephone call or email was directed to opposing counsel less than 24 hours before the paper was intended to be filed and “no response” was received is per se NOT a good-faith effort. B. Format for Motions 1. Motions and all supporting arguments should be contained in a single document. Motions with separately filed briefs or memoranda are strongly discouraged. 2. It is not possible to predetermine the length of a good brief. Accordingly, I do not adhere to any prescribed page limits for briefs. Counsel are expected to exercise good judgment. Consider, however, that the longer it takes to make a point, the less likely it is to be understood, and I will disregard string citations and repetitive arguments. Any case, statute, or article cited in a brief as authority is accepted as certified by counsel’s signature that such has been read and known not to have been overruled, modified, or amended. Furthermore, counsel should bear in mind that sarcastic, rude, or ungrammatical briefs are not persuasive and often counterproductive. 3. I prefer the body of the text and the footnotes to be in Times New Roman 12-point font. The page numbers of motions and briefs should correspond with those given by CM/ECF, i.e., the numbering should start with “1” and continue uninterrupted throughout the document. 4. Responses and replies shall identify by title and CM/ECF docket number the pleading or motion to which they relate. C. Index of Attached Exhibits 1. Each filing with an exhibit should contain an index of the exhibit(s) that accompany it as the final page of the filing (i.e., after the Certificate of Service). Then, each exhibit should be attached to the actual filing in CM/ECF. This includes any declaration in support of the filing, even if the declaration has its own attachments. In the case of such declarations, the declaration should be a single exhibit to the filing in CM/ECF and each of the attachments to the declaration should be their own exhibits to the filing. For example, the Exhibit List on the last page of the filing would state: Ex. 1: Decl. of _____, dated ___ Ex. 2: Att. 1 to Decl. of _____, Email from ___ to ___, dated ___ Ex. 3: Att. 2 to Decl. of _____, . . . . 2. Restricted exhibits may necessarily be filed as separate entries in CM/ECF. 4 3. If a document has already been filed in the docket, the previous entry should be cited and the document should not be re-filed unless there is a compelling reason for doing so. D. Speedy Trial 1. Every motion filed shall include a statement concerning the status of, and the impact the motion may have, on the speedy trial clock. 2. Motions to exclude time from the speedy trial calculation filed by defense counsel must include a certification that counsel has received authorization from the defendant for the motion. E. Motions for Extensions of Time Motions for extension of time require a showing of good cause, which must be established with particularity. Any motion for extension of time shall be filed as far in advance of the deadline as possible, and no later than one business day before the date the filing would otherwise be due. F. Motions to Continue Motions to continue (including motions to vacate or reset) hearings and trials will be determined pursuant to United States v. West, 828 F.2d 1468, 1469–70 (10th Cir. 1987), unless a party seeks to continue a hearing or trial beyond or to the Speedy Trial Act deadlines, in which case it will be decided pursuant to the Speedy Trial Act. Motions to continue that implicate the Speedy Trial Act must include sufficient facts and procedural history of the case to support the findings necessary to support the continuance under United States v. Toombs, 574 F.3d 1262 (10th Cir. 2009). Motions to continue or reset hearings and trials should be made without delay at the earliest opportunity. Stipulations for continuance are not effective unless and until approved by the court. G. Motions in Limine Motions in limine are discouraged when the motion is evidence-driven and cannot be resolved until evidence is presented at trial. If motions in limine are deemed necessary and not evidence-driven, they must be filed before the Trial Preparation Conference, as ordered by the court. H. Proposed Orders All proposed orders should be emailed to [email protected] in editable Word format. The email message should identify the case name and number in the subject line and refer to the underlying motion by CM/ECF document number. 5 I. Timing of Motions Motions filed after 4 p.m. on the last business day of the week will be ruled on no sooner than the next business day. III. IN-COURT PROCEEDINGS A. Courtroom Protocol 1. Courtroom Decorum. Creating a courtroom where all litigants, witnesses, and counsel feel welcome and respected is of utmost importance to this Court. Courtesy and civility to and from one and all is expected. All parties should observe the following courtroom decorum: a. Stand when the Judge enters or leaves the courtroom, when addressing the Court, and when the jury enters or leaves the courtroom; b. Stand at the lectern when speaking, and communicate clearly and distinctly; c. Request permission to approach the bench; and d. Refer to all other persons by their surnames, prefaced by the individual’s title (e.g., Dr., Agent, Officer, Mr. or Ms., etc.). It will not normally be necessary for counsel to approach a witness on the stand. The courtroom deputy, upon request of counsel, will hand a witness an exhibit. 2. Oaths. Please note and advise all persons appearing with you in court, including co-counsel, paralegals, clients, witnesses, and spectators that oath taking is treated formally in my courtroom. The courtroom deputy is directed to administer an oath to a jury or witness ONLY when all other activity in the courtroom has ceased. Attorneys are directed to observe the administration of the oath and to stop all other activity. 3. Cell phones. Please place cell phones in “silent mode” or “off” in the courtroom. 4. Interpretation. If you have questions about the need for or scheduling of interpreters, please review the information on the Court’s website at www.cod.uscourts.gov/CourtOperations/ RulesProcedures/InterpreterInformation.aspx. B. Record of Proceedings 1. The official record of all trials and proceedings will be taken by a court reporter. Before any courtroom proceeding, please provide the court reporter with your business card or other means of contacting you, as well as a glossary of unusual or technical terminology, difficult- to-spell names, and/or acronyms. Requests for realtime or daily or hourly copy should be communicated to the reporter as soon as practicable, no later than two weeks before the proceeding. 6 2. Transcripts of any court proceeding can be ordered directly from the court reporter sitting at the particular hearing. If you do not remember the reporter’s name, consult the Minute Entry for that proceeding. Court reporters’ contact information can be found at www.cod.uscourts. gov/AbouttheDistrict/ContactUs.aspx#report. C. Exhibits 1. When to File Exhibit Lists. For motions hearings, exhibit lists shall be filed via CM/ECF two business days before the hearing. For trials, parties shall file a unified exhibit list via CM/ECF and email an editable Word version to [email protected] no later than seven days before the Trial Preparation Conference. These requirements apply to a defendant if he or she has identified exhibits for the hearing or trial. 2. Format of Exhibit List. Parties must use the form Exhibit List available on my website, indicating which exhibits are stipulated and which are not and the basis for any objections. Counsel shall stipulate to the admissibility of exhibits to the maximum extent possible. A failure to stipulate to authenticity of any particular exhibit must set forth specific reasons for the objection. 3. Marking Exhibits. Each party must pre-mark all exhibits that will be used or identified in a hearing or trial. Exhibits pre-marked or exchanged before a hearing or trial may not be admitted. The Government’s exhibits should be marked with numbers starting at 1. The defendant’s exhibits should be marked with numbers starting with where the Government’s proposed exhibits leave off. For example, if the Government anticipates having 300 exhibits at trial, the defendant’s exhibit numbers will start with 301. There is no need for defendants to seek to re-admit exhibits offered by the Government and admitted by the court. Once an exhibit is marked whether in a hearing or at trial, that number will be permanent and no new additional numbers should be used to mark it. Each document exhibit shall be paginated, including any attachments thereto. 4. Paper Exhibits. Paper copies of exhibits shall be submitted in 3-ring binders and shall be labeled with the following information: (i) caption, (ii) nature of proceeding, (iii) scheduled date and time, and (iv) “original” or “copy.” Paper exhibits, including the set of original exhibits, shall bear extended tabs showing the number of the exhibit. If exhibits are not bound and labeled properly, the hearing or trial may be delayed or continued until they are. 5. Number of Sets of Exhibits. a. Original Exhibits: At the start of every trial or evidentiary hearing, the parties shall submit a set of original exhibits (labeled as “original”) to my courtroom deputy. The “original” set will be for the witness stand and will be the only set that goes to the jury room during deliberations in a jury trial. b. Copies of Exhibits: In addition to the original exhibits, the parties shall provide three sets of paper copies and a digital copy as follows: 7 i. The paper copies shall be submitted in the same format as the original exhibits. One set is for the opposing party, the other two are for the court. For trials, one court copy of the parties’ proposed exhibits shall be delivered to my chambers (not the opposing party) no later than seven days before the Trial Preparation Conference. The original set and additional copies of the final exhibits may be brought to the courtroom the first morning of the trial, along with any exhibits needing to be replaced based on rulings from the Trial Preparation Conference. ii. The parties shall also submit their exhibits on a flash drive for the court reporter. If an exhibit cannot be presented in digital form on a flash drive, the party shall contact the court reporter to discuss an alternate format. D. Timelines and Other Demonstrative Aids 1. In cases in which a sequence of events is relevant or helpful to deciding any issue presented, the parties shall prepare a stipulated demonstrative that sets out the timeline of these events. If any element of this timeline is disputed, the demonstrative should so indicate. 2. The parties are also encouraged to submit similar demonstrative aids for reference during the course of their presentations if such would assist the court or the jury. 3. The parties should provide three total copies of any demonstrative aid, unless it is prohibitively expensive or difficult to make copies of a particular demonstrative aid. Demonstrative aids will not be provided to the jury during its deliberations, unless otherwise ordered. E. Witness Lists 1. When to File. For motions hearings, witness lists should be filed via CM/ECF two business days before the hearing. For trials, the parties shall file their final witness lists via CM/ECF no later than seven days before the Trial Preparation Conference. These requirements apply to a defendant if he or she has identified witnesses for the hearing or trial. 2. Format. The parties should use the form Witness List available on my website. It should list the witnesses to be called by each party in its case in chief and set forth the best estimate of the time required for that witness for direct examination. It should also include potential rebuttal witnesses. This witness list is counsel’s representation, upon which opposing counsel may rely, that the witnesses listed will be present and available for testimony. The witness list should note any testimony that is expected to occur via video teleconferencing, but such testimony will not be permitted, unless a related motion is made and granted. The witness list must include witnesses whose testimony is to be presented by way of deposition. 3. Witness Sequestration. Upon motion, witnesses will be sequestered until a particular witness’s testimony is complete. Each party may retain one advisory witness throughout the trial. If an expert witness’s testimony is based in part on observations at trial, the need for the 8 witness’s presence must be disclosed not later than the Trial Preparation Conference. F. Depositions 1. Together with Federal Rule of Criminal Procedure 15, this practice standard governs the use of depositions in criminal proceedings. 2. At the beginning of a hearing or trial, a party shall deliver to the courtroom deputy the original transcripts of all depositions the party intends to or may use, whether for impeachment or otherwise. 3. For depositions to be used at a hearing, counsel shall exchange with each other their designations of anticipated deposition and videotape deposition testimony at least seven days before the hearing. Objections shall be filed at least two business days before the hearing. If objections are made, the offering party should provide the court with a notebook containing the deposition transcripts with tabs that identify the relevant testimony at least two business days before the hearing. 4. If the parties intend to offer deposition testimony in lieu of a live witness at trial, counsel shall exchange with each other their designations of anticipated deposition and video deposition testimony. After the original exchange, counsel shall notify opposing counsel of any counter-designated deposition testimony, exchange objections to all designated testimony, and make a good-faith attempt to resolve such objections. Objections to any portion of a proposed deposition, including a videotaped deposition, shall be filed at least seven days before the Trial Preparation Conference. Any objectionable portion of the deposition shall be identified with specificity, e.g., by page and line. The parties shall also submit the transcript(s) of the designated deposition testimony to my chambers at [email protected] before the Trial Preparation Conference. In the transcript(s), the Government’s designations should be highlighted in yellow, defendant’s designations should be highlighted in blue, and testimony that is the subject of an objection should be highlighted in red. I will make every effort to resolve objections at the Trial Preparation Conference to speed things along and to facilitate any necessary redaction. 5. For jury trials, parties shall provide a person to read the deposition answers. 6. For bench trials, depositions will not usually be read in open court. Instead, I will read them in chambers in any requested sequence. The offering party shall provide the relevant deposition transcript as an exhibit with its designated portions highlighted. If both parties seek to use portions of the same deposition transcript, they shall confer beforehand and the exhibit provided shall contain the Government’s portions highlighted in yellow and the defendant’s in blue. G. Special Equipment (Audio/Video) The court has audio-visual and other special equipment that may be used by the parties. Notify my courtroom deputy, Bernique Abiakam at Bernique [email protected], no 9 later than 14 days before a hearing or trial regarding use of such equipment or any request to bring your own equipment through security for use in the courtroom. You may schedule a time with Ms. Abiakam to visit the courtroom and run through your technology needs. IV. TRIALS A. Trial Preparation Conference The parties will be directed to contact chambers to set the Trial Preparation Conference and trial dates. The court will issue an order confirming the dates and specifying deadlines for the tasks to be completed before the Conference. The Conference will be held approximately 3 to 10 days before trial. Counsel who will try the case must attend the Conference. B. Jury Instructions and Verdict Forms 1. I place great emphasis on the preparation of narrative instructions that clearly and accurately inform the jurors of the law that applies in a given case. Jury instructions and verdict forms will be submitted to the court, argued, revised, and approved before trial begins. This practice allows counsel to refer to the instructions throughout the case. In my experience, the repeated use of the instructions results in more efficient trials and informed decision-making by the jury. 2. The parties will jointly submit proposed jury instructions and verdict forms at least 21 days before the Trial Preparation Conference, or as otherwise directed in the order setting the Trial Preparation Conference. The parties shall consult and base their instructions on the “Sample Jury Instructions-Criminal” on my website. The jury instructions shall identify the source of the instruction and supporting authority, e.g., “Judge Kane’s Sample Instruction 2” or “§ 103, Fed. Jury Practice, O’Malley, Grenig, and Lee (5th ed.).” Whenever practicable and appropriate, the parties shall modify the Criminal Pattern Jury Instructions prepared by the Criminal Pattern Jury Instruction Committee of the United States Court of Appeals for the Tenth Circuit to the discrete issues in the case. The pattern instructions and updates may be found online at https://www.ca10.uscourts.gov/form/criminal-pattern-jury-instructions. Please refrain from using legalese where commonly used words are available (e.g., not “prior” or “subsequent” but “before” and “after”). And please use the names of the defendant(s). 3. To the maximum extent possible, the parties shall agree on one stipulated set of proposed jury instructions. The filed Jury Instructions shall include all of the parties’ stipulated, proposed, and counter-proposed instructions in a single, page-numbered document. Do not submit jury instructions individually or as separate Word files. Each instruction should be numbered (e.g., “Stipulated” or “Government’s [Defendant’s] Proposed” Instruction No. 1) for purposes of making a record at the Trial Preparation Conference. A party’s written objection to a proposed instruction should immediately follow the objected to instruction and accompanied by that party’s counter-proposed instruction, if any. A counter-proposed 10 instruction should be a redlined version of the opposing party’s proposed instruction. For examples on how to submit the jury instructions, see Case Nos. 16-cr-00111-JLK, Doc. 81, and 16-cv-02327-JLK, Doc. 148. The parties are expected to work together to craft the instructions and should exchange proposals and attempt to work through objections well before the submission due date. 4. The parties shall submit their instructions and verdict forms via CM/ECF and email them in an editable Word format to [email protected]. 5. In addition to any record created at the Trial Preparation Conference or other supplemental jury instruction conference(s), counsel will be provided the opportunity to make a record of objections before final arguments and after the close of evidence. After being sworn in, each individual juror will also receive a notebook of instructions, which (unless otherwise ordered) will be compiled by my staff. C. Trial Briefs Trial briefs identifying issues and legal authority with which you wish me to be familiar before trial may be helpful, as may timelines or glossaries of names, technical terms, abbreviations, or acronyms. Trial briefs must be submitted no later than seven days before the Trial Preparation Conference. D. Optional Exhibit Notebooks for Individual Jurors There is technological equipment available in the courtroom for parties to utilize in presenting exhibits to the jury and the court. However, if the parties so choose, counsel may provide each juror with a notebook containing copies of the parties’ key exhibits to reference in the courtroom during the trial. (Only the original set of exhibits will be available in the jury room during deliberations.) 1. If used, counsel should confer and provide one individual juror notebook for each juror that includes selected exhibits of each party. 2. Individual juror exhibit notebooks should include only those exhibits previously admitted by stipulation or admitted by the court at the Trial Preparation Conference. If additional key exhibits are admitted during the trial, the parties may provide the courtroom deputy with copies of these additional admitted exhibits to be placed in the individual juror exhibit notebooks. E. Trial Schedule Counsel will be present to deliver the exhibits and go over any last-minute items with the courtroom deputy at 8:30 a.m. on the first day of trial. The normal trial day begins at 9:00 a.m. and continues until 4:30 p.m. Lunch recess normally is from 12:00 to 1:15 p.m. We may continue beyond 4:30 p.m., but jurors have a right to rely on their being excused for the day no later than 5:00 p.m. For the convenience of everyone, additional recesses are scheduled for 10:15 11 to 10:30 a.m. and 3:15 to 3:30 p.m. If a recess is needed at any other time, make a request, and it will be granted. F. Jury Selection 1. Voir Dire. I will conduct a voir dire examination. Counsel will have 30 minutes per side to conduct supplemental voir dire. I do not require counsel to submit voir dire questions to me in advance, but if they choose to do so, they should be submitted at least two business days before the Trial Preparation Conference. No questions concerning jury nullification or agreement or disagreement with any applicable law contained in the instructions or to be offered will be permitted. 2. Batson Challenges. Challenges pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), shall be made and considered at the time challenges for cause are made, before the jury is sworn. 3. Note-taking and Questions. Jurors will be permitted to take notes during the trial and to submit questions for the court and counsel in writing. Copies of juror questions will be provided to counsel and a record made outside the presence of the jury before an answer is given. V. PLEA AGREEMENTS A. Right to Trial All defendants have a Constitutional right to a speedy and public trial. For that reason, the failure to enter a guilty plea will have no impact on the sentence imposed. Under no circumstance will I reward a defendant for pleading guilty. Counsel are expected to inform their clients accordingly. B. Treatment of Notice of Disposition Any notice of disposition filed pursuant to D.C.COLO.LCrR 11.1(a) shall be considered a pretrial motion within the meaning of 18 U.S.C. § 3161(h)(1)(F) for the purpose of computing time under the Speedy Trial Act, 18 U.S.C. §§ 3161-74. C. Change of Plea Hearing and Plea Documents Upon the filing of a Notice of Disposition, I will set a change of plea hearing. In addition to providing my courtroom deputy with the signed original and one copy of the Statement by Defendant in Advance of Change of Plea and the Plea Agreement on the date of the hearing, the documents must be emailed to my chambers at [email protected] and furnished to the Probation Office no less than seven days before the hearing. I will not accept Plea Agreements or Statements in Advance of Plea that are insufficiently 12 edited or tailored versions of the form documents. The defendants that appear in this Court are entitled to be treated as individuals and with dignity and respect. As a result, any plea documents that are submitted should be edited to be written in plain language with minimal legalese. They also must not contain any irrelevant information or unfilled blanks. The use of the forms as drafts is not prohibited, but each provision of each document must be particularized and any irrelevant parts must be deleted from the final document that is tendered to the Court. If a defendant speaks but is unable to read and write in English proficiently, the documents must be read in full to the defendant. If a defendant does not speak English proficiently, the parties must submit to the Court an English version of the documents along with certified translations in the defendant’s preferred language that are signed by the defendant. I will confirm with the defendant at the change-of-plea hearing that these requirements have been fulfilled and, in the event that they have not, will reject the documents and vacate the hearing. D. Review of Plea Agreements Accepting or rejecting a proposed plea bargain is entirely a matter of judicial discretion. Plea bargains are divided into two principal categories: sentence bargains and charge bargains. Bargains based on or presenting agreements as to length or terms of a sentence are subject entirely to judicial authority such that the involvement of both the prosecution and the defense in determining sentences is strictly advisory. While permitted by Federal Rule of Criminal Procedure 11(c)(1)(C), I will not accept a plea bargain based upon an agreed sentence or seeking to bind the court to a specific sentence or sentence range. I personally believe doing so would be a violation of my judicial oath. See 28 U.S.C. § 453. A judge’s discretion is more limited when accepting or rejecting a plea agreement based on the charges involved because deciding what charges to bring or dismiss falls within executive authority. Nevertheless, such decisions must be supported by expressed rational justifications related to the particular case and defendant. In conformity with my review of all plea agreements, I will consider in detail those containing an appellate waiver and whether the individual facts of the case indicate that such a provision is in the public interest. Generally, I will not accept a plea agreement in which the prosecution has informed or suggested to the defendant that it will offer a less favorable plea bargain or will not engage in plea negotiations if the defendant files any pretrial motions. Accepting such plea agreements would, in my judgment, endorse the extortion of guilty pleas from defendants and thus constitute a violation of my oath. Of course, if a defendant has independently determined that his or her best course of action is to forego filing any pretrial motions, an advisement from the prosecution discouraging pretrial motions would not undermine the validity of a plea agreement in the same way. I deem it essential and morally obligatory to consider all the criteria under 18 U.S.C. § 3553 (as described in Section VI below) before determining an appropriate sentence. It should be obvious that those factors are necessarily implicated in my decision of whether to accept or reject a proposed plea bargain. My general practice, therefore, is to incorporate the foregoing into my Federal Rule of Criminal Procedure 11(b)(1) advisement, conditionally accept the defendant’s 13 plea if appropriate, and defer my acceptance or rejection of the plea agreement until after the prosecution and the defendant have provided sentencing statements and the Probation Office has submitted a presentence report. VI. SENTENCING Title 18, Section 3553 of the United States Criminal Code sets forth the sentencing criteria that must be considered in imposing a sentence that is sufficient but not greater than necessary. Counsel are certainly familiar with the complete list of factors, so I elaborate on only a few here. First and foremost, in sentencing a defendant, I must gain a complete understanding of the nature and circumstances of the offense. Thus, I examine the following: (1) The facts of the offense in specific detail, including those related not only to the commission of the crime or crimes but to the planning and post-execution as well; (2) Whether the totality of the circumstances might indicate or suggest patterns, series, or continuity of unlawful behavior and damage or injury to others; (3) The characteristics of the defendant, including his or her mental and physical health, skills, education and occupational qualifications, capacity to learn and adapt, family history, and previous treatments and programs; and (4) The support available to the defendant from all sources, such as that provided by family, friends, and religious and social organizations, in addition to plans or living arrangements the defendant has after any period of confinement. Second, pursuant to § 3553(a)(2), I also determine the need for the sentence imposed by evaluating: (1) The seriousness of the crime, including the effects on others, the need to promote respect for the law, and provide just and commensurate punishment; (2) What would deter the defendant from further criminal behavior; (3) How to protect the public when violence, deviance, or other predatory behavior is indicated; and (4) The opportunity to provide the defendant with needed education, vocational training, medical care, and other effective treatment programs. While I must calculate and consider the applicable Guidelines range, see Gall v. United States, 552 U.S. 38, 49 (2007), my sentencing inquiry always extends to each and every applicable factor under 18 U.S.C. § 3553. Any analysis offered by the parties should as well. For 14 illustrations of my sentencing objectives, read United States v. Worku, No. 12-cr-346-JLK, 2014 WL 2197537 (D. Colo. May 27, 2014); United States v. Jumaev, No. 12-cr-00033-JLK, 2018 WL 3490886 (D. Colo. Jul. 18, 2018); and United States v. Muhtorov, 329 F.Supp.3d 1289 (D. Colo. 2018). Regardless of whether a sentence is to be imposed after a plea agreement or trial, the filing of detailed and individually tailored sentencing statements is the bare minimum I expect from both the prosecution and the defendant. Case-specific reasons for recommended sentences must be stated with particularity. If I am not satisfied with the parties’ sentencing statements or the presentence report, I may order supplemental reports or statements. Very infrequently, I have called witnesses or ordered examinations and reports by independent experts. Of course, full and timely notice is provided to counsel should this situation arise. Upon request of either or both parties or on my own motion, witnesses can be called in an evidentiary hearing. With the court’s permission, interested persons may be permitted to address the court without being called to testify under oath as witnesses. This latter group is afforded this opportunity to express opinions and consists of relatives, friends or professionals such as ministers, counselors or other therapists, and can also include victims of any offense committed by the defendant. In this court such a hearing will almost always be scheduled after the court receives the final Presentence Report and may be set on the same date in preface to the sentencing. Before a sentence is imposed, I will provide both the prosecution and the defendant’s counsel with the opportunity to address the court and offer arguments on what constitutes an appropriate and condign sentencing disposition. Finally, the defendant will have the opportunity to address the court as an exercise of his or her right of allocution. 15

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[STIPULATED SCHEDULING AND DISCOVERY ORDER FOR USE IN CASES ASSIGNED TO JUDGE KANE] [Except for the caption and signature blocks, the proposed Order itself, like all filings, should be double-spaced as required by D.C.Colo.LCivR 10.1(e). The bracketed text on the form conveys instructions to counsel or parties appearing pro se and should not be included in the proposed Scheduling and Discovery Order submitted to the court.] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. * *, v. *, Plaintiff, Defendant. STIPULATED SCHEDULING AND DISCOVERY ORDER 1. DATE OF CONFERENCE [State the date of the Scheduling and Discovery Conference.] 2. STATEMENT OF CLAIMS AND DEFENSES [State concisely and without boilerplate the essence of your case. Do not quote from the complaint, answer, or other pleadings. Include the specific basis for the court’s jurisdiction.] a. b. c. Plaintiff(s): Defendant(s): Other parties: [Each party shall make a concise narrative statement of all claims or defenses. Unless the same items of relief are sought against all defendants, use of the collective “defendants” is inappropriate. Each party should, in light of any informal discovery undertaken thus far, take special care to eliminate frivolous claims or defenses. Jurisdictional or otherwise dispositive 1 affirmative defenses should be addressed by dispositive motion or risk being deemed waived at the Pretrial Conference. Do not summarize the pleadings. Statements such as “defendant denies the material allegations of the complaint” are not acceptable. State with particularity what is asserted and what is denied.] 3. UNDISPUTED FACTS The following facts are undisputed: a. b. c. [. . . , etc.] [A statement of all facts which the parties acknowledge to be undisputed. When the parties have their Federal Rule of Civil Procedure 26(f) meeting, they should make a good-faith attempt to determine the facts that are not in dispute. There is a continuing duty throughout the discovery period to supplement undisputed facts. This supplement will be included in the Pretrial Order.] 4. COMPUTATION OF DAMAGES [Include a computation of all categories of damages sought or the basis and theory for calculating damages. See Fed. R. Civ. P. 26(a)(1)(A)(iii). This should include the claims, counterclaims and cross-claims of all parties. If the computation cannot be complete, set forth the reasons why and the date when it will be completed.] 5. REPORT OF PRE-CONFERENCE DISCOVERY & MEETING UNDER FEDERAL RULE OF CIVIL PROCEDURE 26(f) a. b. c. Date of Rule 26(f) meeting: Name of each participant: Proposed changes, if any, in timing or requirement of disclosures under Federal Rule of Civil Procedure 26(a): d. Statement as to when Rule 26(a) disclosures were made or will be made: [If a party’s disclosures were not made within 14 days after the Rule 26(f) meeting, as provided in my Pretrial and Trial Procedures Memorandum, and Rule 26(a)(1), the party must provide an explanation showing good cause for noncompliance.] 2 e. Statement concerning any agreements to conduct informal discovery: [State what processes the parties have agreed upon to conduct informal discovery such as joint interviews with potential witnesses or joint meetings with clients or exchanging documents outside of formal discovery. If there is an agreement to conduct joint interviews with potential witnesses, list the names of such witnesses. The parties should at a minimum meet and exchange, collate, and number documents.] f. Statement concerning any agreements or proposals regarding electronic discovery: in which: (i) the substantive allegations [In cases involve extensive computer-generated records; (ii) a substantial amount of disclosure or discovery will involve information or records in electronic form (e.g., emails or databases); (iii) expert witnesses will develop testimony based in large part on computer data and/or modeling; or (iv) either party plans to present a substantial amount of evidence in digital form at trial, the parties shall confer regarding steps they can take to preserve relevant computer records and data, facilitate computer-based discovery, limit discovery costs and delay, and avoid discovery disputes. Counsel should provide a statement here regarding agreements or proposals regarding electronic discovery made at the Rule 26(f) conference and be prepared to discuss these issues, as appropriate, at the Scheduling Conference.] g. Statement concerning any other agreements or proposals to reduce discovery and other litigation costs: [Examples of efforts to reduce discovery and other litigation costs include depositions via remote means, joint repositories for documents, use of discovery in other cases, and extensive use of expert affidavits to support judicial notice.] h. Statement regarding use of the unified exhibit numbering system: [Parties are required, to use a unified exhibit numbering system, meaning that each exhibit is given only one Arabic number throughout the litigation and that number is used no matter who presents or offers it.] i. Statement on anticipated costs of litigation: a. b. Plaintiff(s): Defendant(s): [Each party shall set forth its anticipated costs of conducting this litigation, itemizing costs including travel and attorney fees for taking depositions, 3 paralegal expenses, costs of preparations, costs of drafting written discovery and anticipated motions, and costs of complying with discovery requests. This information is used by me to fulfill the requirements of Federal Rule Civil Procedure 1.] 6. CASE PLAN AND SCHEDULE a. Deadline for Joinder of Parties [This deadline should be no later than 45 days after the Scheduling Conference.] b. Deadline to Amend Pleadings [This deadline should be no later than 45 days after the Scheduling Conference.] c. Discovery Cut-off [This deadline should be not more than 6 months if the case involves one plaintiff and one defendant or not more than 12 months if multiple parties are involved. This period includes both fact and expert discovery. Any longer periods proposed by the parties must be fully justified to the court at the Scheduling Conference.] d. Dispositive Motion Deadline [This deadline should be not more than 30 days after discovery cut-off.] e. Expert Witness Disclosure (1) Statement regarding anticipated fields of expert testimony, if any: (2) (3) Statement regarding any limitations proposed on the use or number of expert witnesses: The parties shall designate all experts and provide opposing counsel and any pro se party with all information specified in Rule 26(a)(2) on or before __________________. [This deadline should ordinarily be no later than 90 days after the Scheduling Conference.] (4) The parties shall designate all rebuttal experts and provide opposing counsel and any pro se party with all information specified in Rule 26(a)(2) on or before ________________. [This deadline should ordinarily be no later than 30 days after receipt of the experts’ reports to which the rebuttal is addressed.] 4 [All designations of experts shall include a statement describing the methodology to be used by the particular expert. Daubert/Kumho Tire motions challenging any proposed methodology may be considered before the expert is deposed. Such a motion does not preclude the filing of any subsequent motions. The aim is to cut off faulty methodology before undertaking extensive discovery and may result in an amended designation with either a new expert, a revised methodology, or both.] (5) Notwithstanding the provisions of Rule 26(a)(2), no exception to the requirements of the Rule will be allowed by stipulation of the parties unless the stipulation is approved by the court. f. Deposition Schedule Name of Deponent Date of Deposition Time of Deposition Expected Length of Deposition [List the names of persons to be deposed and a schedule of any depositions to be taken, including: (i) a good-faith estimate of the time needed for the deposition and (ii) time(s), date(s), and location(s) for the deposition to which the persons signing the Stipulated Scheduling and Discovery Order have agreed. Counsel must confer in advance of the Scheduling Conference, and unless otherwise ordered and for good cause stated (e.g., counsel does not know the names of any deponent until receipt of answers to interrogatories), identify by name, title, or occupation the persons counsel wishes to depose.] g. Interrogatory Schedule [Set a schedule for the submission of and response to any written interrogatories.] h. Schedule for Request for Production of Documents [Set a schedule for the submission of and response to any requests for documents.] 5 i. Discovery Limitations (1) Limits on the length of any deposition: [List those proposed by either party or agreed upon.] (2) Modifications to the presumptive numbers of depositions or interrogatories contained in the Federal Rules: [List those proposed by either party or agreed upon.] (2) Limitations on the number of requests for production of documents and/or requests for admissions: [List those proposed by either party or agreed upon.] j. Other Planning or Discovery Orders [Set forth any other proposed orders concerning scheduling or discovery.] 7. SETTLEMENT [The parties must certify here that, as required by Federal Rule of Civil Procedure 26(f), they have discussed the possibilities for a prompt settlement or resolution of the case by alternate dispute resolution. This statement should also report whether any of the parties requests a settlement conference before a magistrate judge. Note: I do not preside over settlement conferences in cases assigned to me for trial. Nor do I wish to be informed about the specifics of settlement offers, counteroffers, proposals, etc. I will refer this case to a magistrate judge for a settlement conference if any party requests such a reference. Be prepared at the Scheduling Conference to advise me when and under what circumstances it will be propitious to take further steps toward settlement. I encourage but do not require use of privately retained mediators.] 8. OTHER SCHEDULING ISSUES a. b. Statement of those discovery or scheduling issues, if any, on which counsel, after a good-faith effort, were unable to reach an agreement: Statement of anticipated motions to be filed, by whom, estimated time of filing, and any proposed briefing schedule: [Note that my general practice is to require that the response or answer brief be filed 21 days from the date of filing of the motion and the reply brief 14 days from the date of filing of the response brief.] c. Statement whether trial is to the court or jury: 6 [If a mixed trial, e.g., declaratory judgment and damages, specify which claims are to be tried to a jury and which to the court.] 9. AMENDMENTS TO DISCOVERY AND SCHEDULING ORDER This Stipulated Scheduling and Discovery Order may be altered or amended only upon motion showing good cause and order entered thereon. [As stated elsewhere herein, I will almost always grant stipulated motions for extensions of time and changes in deadlines up to and including the signing of a Pretrial Order. If the parties cannot agree on such extensions, my inclination is, in the absence of abuse, to be permissive. On the contrary, I am not permissive or lenient in changing trial dates.] DATED this ____ day of _________________, 20___ ___________________________ JOHN L. KANE SENIOR U.S. DISTRICT JUDGE [Please affix counsel’s signatures in the form below before submission of the Stipulated Scheduling and Discovery Order to the court.] STIPULATED SCHEDULING AND DISCOVERY ORDER APPROVED: ________________________ [Name] [Address] [Telephone Number] ________________________ [Name] [Address] [Telephone Number] [Attorney for Plaintiff or Plaintiff, Pro Se] [Attorney for Defendant or Defendant, Pro Se] 7

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[PRETRIAL ORDER FOR USE IN CASES ASSIGNED TO JUDGE KANE] [Except for the caption and signature blocks, the proposed Order itself, like all filings, should be double-spaced as required by D.C.Colo.LCivR 10.1(e). The bracketed text on the form conveys instructions to counsel or parties appearing pro se and should not be included in the proposed Pretrial Order submitted to the court.] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. * *, v. *, Plaintiff, Defendant. PRETRIAL ORDER 1. DATE AND APPEARANCES [State the date of the Pretrial Conference and identify the counsel present.] 2. JURISDICTION [State the basis for subject matter jurisdiction with appropriate statutory citations. If jurisdiction is denied, give the specific reasons for the denial.] 1 3. CLAIMS AND DEFENSES a. b. c. Plaintiff(s)’ statement: Defendant(s)’ statement: Other parties’ statement: [Summarize the claims and defenses of all parties, including the respective versions of the facts and legal theories. Do not copy the pleadings and make certain to eliminate claims and defenses that are unnecessary, unsupported, no longer asserted or have been decided as a result of court rulings on dispositive motions. Do not include arguments or opinions on the merits. Make the statements concise and objective. Identify the specific relief sought and the specific party or parties against whom such is sought. Use the names of the parties. Do not use “plaintiff,” “defendant,” or other generic terms. Use of the collective terms “plaintiffs” or “defendants” is inappropriate.] 4. STIPULATIONS [Set forth in sequential order all stipulations concerning a. facts, b. evidence, and c. the applicability of 1. statutes, 2. regulations, 3. rules, 4. ordinances, etc.] 5. PENDING MOTIONS [List any pending motion(s) giving the filing date and the filing dates of any briefs in support or opposition. If there are no pending motions, please state “None.”] 6. WITNESSES a. Non-expert Witnesses [List the non-expert witnesses to be called by each party. List separately:] (1) Witnesses who will be present at trial [see Fed. R. Civ. P. 26(a)(3)(A)]; (2) Witnesses who may be present at trial if the need arises [see id.]; and (3) Witnesses whose testimony is expected to be presented by means of a deposition and a transcript of the pertinent portions of the deposition testimony [see Fed. R. Civ. P. 26(a)(3)(B)]. b. Expert Witnesses [List the expert witnesses to be called by each party. List separately:] (1) Witnesses who will be present at trial [see Fed. R. Civ. P. 26(a)(3)(A)]; 2 (2) Witnesses who may be present at trial [see id.]; and (3) Witnesses whose testimony is expected to be presented by means of a deposition and a transcript of the pertinent portions of the deposition testimony [see Fed. R. Civ. P. 26(a)(3)(B)]. [With each witness’s name, set forth: (1) the city and state in which he or she resides; (2) a short statement as to the nature and purpose of the witness’s testimony; and (3) whether the witness is expected to testify in person or by deposition. [If the parties intend to offer deposition testimony in lieu of a live witness at trial, counsel shall exchange with each other their designation of anticipated deposition and video deposition testimony. Pursuant to Federal Rule of Civil Procedure 26(a)(3)(B), these disclosures must be made at least thirty days before trial. Following the original exchange, counsel shall notify opposing counsel of any counter-designated deposition testimony, exchange objections to all designated testimony, and make a good-faith attempt to resolve such objections. Objections to deposition designations must be filed with the court before the Final Trial Preparation Conference. See Pretrial and Trial Procedures Memorandum (Civil) at § V.E. An objection not so made—except for one under Federal Rule of Evidence 402 or 403—is waived unless excused by the court for good cause. See Fed. R. Civ. P. 26(a)(3)(B).] 7. EXHIBITS a. [List or attach a list of the exhibits to be offered with the number given to it in the unified numbering system, identifying the party offering the exhibit and those regarding which admission is stipulated. Include in this list any summary or similar exhibits offered pursuant to Federal Rule of Evidence 1006. This list should be specific enough so that other parties and the court can understand, merely by referring to the list, each separate exhibit that will be offered. General references such as “all deposition exhibits” or “all documents produced during discovery” are unacceptable. Objections should be stated with specificity.] b. [Include the following paragraph in the Pretrial Order:] in an and emailed The objections contemplated by Federal Rule of Civil Procedure 26(a)(3)(B) shall be made, and the final unified exhibit list will be filed to [email protected] no later than seven (7) days before the Final Trial Preparation Conference unless otherwise ordered. At that time, one court copy of the parties’ proposed exhibits will be delivered to chambers and a copy will be provided to opposing counsel. [See Pretrial and Trial Procedures Memorandum (Civil), at § V.C. An objection not so made—except editable Word version 3 for one under Federal Rule of Evidence 402 or 403—is waived unless excused by the court for good cause. See Fed. R. Civ. P. 26(a)(3)(B).] 8. DISCOVERY [Include the following language. Unless otherwise ordered, upon a showing of good cause in an appropriate motion, there will be no discovery after entry of the Pretrial Order.] Discovery has been completed. 9. SPECIAL ISSUES [List any special or additional issues of law which the parties intend to raise before trial. Also list any objections to testimony of expert witnesses based on the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) and their progeny and whether testimony will be required to rule on the objection. If none, please state “None.” Any Daubert/Kumho Tire objection will be deemed waived unless identified in this section and filed by the deadline.] 10. SETTLEMENT [Include a certification by the undersigned counsel for the parties and any pro se party that:] a. b. c. d. Counsel for the parties (and any pro se party) met (in person)(by telephone) on ______________, 20__, to discuss in good faith the settlement of the case. [You must have at least one discussion.] The participants representatives, and any pro se party. in the settlement conference, included counsel, party Counsel for the parties and any pro se party [(do)(do not)] intend to hold future settlement conferences. It appears from the discussion that there is [select and insert one of the following: a good possibility of settlement, some possibility of settlement, little possibility of settlement, or no possibility of settlement. Describe what the court can do, if anything, to facilitate settlement.] 11. EFFECT OF PRETRIAL ORDER [The following paragraph shall be included in the Pretrial Order:] Hereafter, this Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of 4 the court to prevent manifest injustice. This Pretrial Order supersedes the Scheduling and Discovery Order in the event of conflict. In the event of ambiguity in any provision of this Pretrial Order, reference may be made to the record of the Pretrial Conference to the extent reported by stenographic notes and to the pleadings. 12. TRIAL AND ESTIMATED TRIAL TIME/FURTHER TRIAL PREPARATION PROCEEDINGS a. b. c. d. [State: (1) whether trial is to the court or a jury, or mixed bench and jury; (2) the estimated trial time; (3) the situs of the trial; and (4) any other orders pertinent thereto (e.g., view of premises or relevant locale, special equipment to be used, security needs).] Trial Date: _______________________. [Leave this blank if the court has not yet set the date. The target trial date is usually 90-120 days from the date of the Pretrial Conference.] Final Trial Preparation Conference Date: __________________. [Leave this blank if the court has not yet set the date. In advance of this conference, the parties shall comply with my instructions concerning the Final Trial Preparation Conference. See Pretrial and Trial Procedures Memorandum (Civil) § VI.E.] Deadline for filing motions objecting to any testimony of an expert witness based on the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and their progeny: [Leave this blank if the court has not yet set the date. The deadline is generally 30 days after the date of the Pretrial Conference.] Any such objections not identified in Section 9 of this Order and filed by motion by this date are deemed waived. [Unless otherwise ordered, a written response to such a motion must be filed no later than 21 days after the motion is filed. A reply, if any, must be filed no later than fourteen 14 days after the response. If an evidentiary hearing is required or desired say so and set forth the time needed for hearing.] e. Deadline for filing other motions in limine: [Leave this blank if the court has not yet set the date. The deadline is generally 60 days after the date of the Pretrial Conference.] [Unless otherwise ordered, a written response to such a motion or objection must be filed no later than 21 days after the motion is filed, and the reply, if any, must be filed no later than 14 days after the response.] f. Deadline for filing unified set of jury instructions based on the requirements set forth in my Pretrial and Trial Procedures Memorandum (Civil), § VI.C: [Leave 5 this blank if the court has not yet set the date. The deadline is generally 90 days after the date of the Pretrial Conference.] g. Deadline for filing witness lists, the unified exhibit list, objections to exhibits and to designated deposition testimony and for delivering a copy of the exhibits to the court and opposing counsel: [Leave this blank if the court has not yet set the date. The deadline is generally seven days before the Final Trial Preparation Conference.] DATED this ____ day of _________________, 20__. _________________________ JOHN L. KANE SENIOR U.S. DISTRICT JUDGE [Please affix counsel’s signatures in the form below before submission of the Pretrial Order to the court.] PRETRIAL ORDER APPROVED: ________________________ [Name] [Address] [Telephone Number] ________________________ [Name] [Address] [Telephone Number] [Attorney for Plaintiff or Plaintiff, Pro Se] [Attorney for Defendant or Defendant, Pro Se] 6

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[PARTY’S] WITNESS LIST IN CASE NO. _________________________ v. _________________________ WITNESS EST. TIME FOR EXAMINATION DATE(S) TESTIFIED [FBI Special Agent John Jones, Cyber Security Expert] [Direct: 3 hrs., Cross: 2 hrs., Total: 5.5 hrs.] 1 WITNESS EST. TIME FOR EXAMINATION DATE(S) TESTIFIED 2

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UNIFIED EXHIBIT LIST IN CASE NO. _____________ _________________________ v. _________________________ DESCRIPTION STIP. DATE ADM. DATE REJ. OBJECTION COURT USE ONLY [Surveillance Photo from 1/20/18] [Pre- PTC] [At PTC 12/1/18] [U.S. Bank Records for Acct. No. xxxxx from 1/1/17-12/31/17] [Relevance] EX NO. [1] [2] 1 EX NO. DESCRIPTION STIP. DATE ADM. DATE REJ. OBJECTION COURT USE ONLY 2

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[Please note that the bracketed and italicized text on the form convey instructions to the parties and should not be included in the Stipulated Protective Order submitted to the court.] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. * * v. * Plaintiff*, Defendant*. ______________________________________________________________________________ STIPULATED PROTECTIVE ORDER ______________________________________________________________________________ As stipulated and requested by each party and each counsel of record in this case, this Protective Order concerning the treatment of Confidential Information (as hereinafter defined) is issued pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, as follows: 1. In this action, at least one of the parties has sought and/or is seeking Confidential Information (as defined in paragraph 2 below). The parties also anticipate seeking additional Confidential Information during discovery and that there will be questioning concerning Confidential Information in the course of depositions. The parties assert the disclosure of such information outside the scope of this litigation could result in significant injury to one or more of the parties’ business or privacy interests. 2. “Confidential Information” means any document, file, portions of files, transcribed testimony, or response to a discovery request, including any extract, abstract, chart, summary, note, or copy made therefrom—not made available to the public—and designated by one of the 1 parties in the manner provided in paragraph 3 below as containing: [Enter precise categories of data (materials) sought to be protected and basis for treating as confidential information, e.g., trade secrets, etc.] 3. Where Confidential Information is produced, provided, or otherwise disclosed by a party in response to any discovery request, it will be designated in the following manner: a. By imprinting the word “Confidential” on the first page or cover of any document produced; b. By imprinting the word “Confidential” next to the information; or above any response to a discovery request; and c. With respect to transcribed testimony, by giving written notice to opposing counsel designating such portions as “Confidential” no later than ten calendar days after receipt of the transcribed testimony. 4. All Confidential Information provided by a party in response to a discovery request or transcribed testimony shall be subject to the following restrictions: a. It shall be used only for the purpose of this litigation and not for any business or other purpose whatsoever; b. It shall not be communicated or disclosed by any party’s counsel or a party in any manner, either directly or indirectly, to anyone except for purposes of this case and unless an affidavit in the form of Exhibit A has been signed. 5. Individuals authorized to review Confidential Information pursuant to this Protective Order shall hold Confidential Information in confidence and shall not divulge the Confidential Information, either verbally or in writing, to any other person, entity or government agency unless authorized to do so by court order. 2 6. The party’s counsel who discloses Confidential Information shall be responsible for assuring compliance with the terms of this Protective Order with respect to persons to whom such Confidential Information is disclosed, shall obtain and retain the original affidavits signed by qualified recipients of Confidential Information, and shall maintain a list of all persons to whom any Confidential Information is disclosed. 7. During the pendency of this action, opposing counsel may, based on a court order or agreement of the parties, inspect the list maintained by counsel pursuant to paragraph 6 above, upon a showing of substantial need to establish the source of an unauthorized disclosure of Confidential Information and that opposing counsel are unable otherwise to identify the source of the disclosure. If counsel disagrees with opposing counsel’s showing of substantial need, then counsel may seek a court order requiring inspection under terms and conditions deemed appropriate by the Court. 8. No copies of Confidential Information shall be made except by or on behalf of counsel in this litigation and such copies shall be made and used solely for purposes of this litigation. 9. During the pendency of this litigation, counsel shall retain custody of Confidential Information, and copies made therefrom pursuant to paragraph 8 above. 10. If opposing counsel objects to the designation of certain information as Confidential Information by the other parties’ counsel, he or she shall promptly inform designating counsel in writing of the specific grounds for the objection. All counsel shall then, in good faith and on an informal basis, attempt to resolve such dispute. If after such good faith attempt, all counsel are unable to resolve their dispute, opposing/objecting counsel may move for a disclosure order consistent with this order. Any motion for disclosure shall be filed within 14 days of 3 designating counsel’s receipt of opposing counsel’s written objection. The information shall continue to have Confidential Information status from the time it is produced until the ruling by the Court on the motion. 11. Use of Confidential Information in Court Proceedings: In the event Confidential Information is used in any court filing or proceeding in this action, including but not limited to its use at trial, it shall not lose its confidential status as between the parties through such use. However, Confidential Information and pleadings or briefs quoting or discussing Confidential Information will not be accepted as restricted filings or otherwise kept out of the public record in this action, except by court order issued upon motion of the party seeking to restrict the documents. Any such motion shall comply with the requirements of D.C.COLO.LCivR 7.2 and demonstrate that the Confidential Information at issue is entitled to protection under the standards articulated in Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-602 (1978) (applied in United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985) and Crystal Grower’s Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980 . 12. By agreeing to the entry of this Protective Order, the parties adopt no position as to the authenticity or admissibility of documents produced subject to it. 13. Nothing in this Protective Order shall preclude any party from filing a motion seeking further or different protection from the Court under Rule 26(c) of the Federal Rules of Civil Procedure or from filing a motion with respect to the manner in which Confidential Information shall be treated at trial. 14. Upon termination of this litigation, including any appeals, each party’s counsel shall immediately return to the producing party all Confidential Information provided subject to this Protective Order, and all extracts, abstracts, charts, summaries, notes or copies made 4 therefrom. At that time, counsel shall also file under seal with this Court the list of individuals who have received Confidential Information which counsel shall have maintained pursuant to paragraph 6 herein, and counsel shall provide the Court with verification that any of counsel’s work product referencing Confidential Information has been destroyed. 15. The termination of this action shall not relieve counsel or other persons obligated hereunder from their responsibility to maintain the confidentiality of Confidential Information pursuant to this Protective Order. The Court shall retain continuing jurisdiction to enforce the terms of this Protective Order. DATED this ___ day of _________________________, 20__. JOHN L. KANE SENIOR U.S. DISTRICT JUDGE STIPULATED AND AGREED TO: [Party Name] [Party Name] [Attorney] [Address] [Telephone Number] [Attorney] [Address] [Telephone Number] 5 EXHIBIT A AFFIDAVIT STATE OF COLORADO COUNTY OF ss. ) ___________________, swears or affirms and states under penalty of perjury: 1. I have read the Protective Order in _________________v. ________________, Case No. ____________. 2. I have been informed by ________________________, counsel for ___________________________, that the materials described in the list attached to this Affidavit are Confidential Information as defined in the Protective Order. 3. I promise that I have not and will not divulge, or undertake to divulge to any person or recording device any Confidential Information shown or told to me except as authorized in the Protective Order. I will not use the Confidential Information for any purpose other than this litigation. 4. For the purposes of enforcing the terms of the Protective Order, I hereby submit myself to the jurisdiction of the court in the civil action referenced above. 5. I will abide by the terms of the Protective Order. _____________________________________ (Signature) _____________________________________ (Print or Type Name) _____________________________________ (Address) _____________________________________ Telephone No.: (_____)__________________ SUBSCRIBED AND SWORN to before me this _____ day of ___________________, 20__, by ___________________________. WITNESS my hand and official seal. [S E A L] ______________________________________ Notary Public My Commission Expires: _____________________________ 1

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INTERNS I offer two or three unpaid internships each fall and spring semester and up to four during the summer. Interns are assigned a variety of projects, given opportunities to attend trials and oral arguments, and receive constructive feedback on research, writing, and analysis. Pre- and post-hearing confidential discussions give interns unique insight into the decisional process. In selecting interns, I focus on student transcripts, writing samples, and demonstrations of creativity. Interests predating law school and extracurricular activities are important. I am seeking interns who enjoy learning, who want to improve the quality of their writing, and who care about the law, other people, and themselves; in short, those who combine character and intelligence. Applicants should submit a cover letter, resume, transcripts, and a short (less than 10- page) writing sample no later than September 30th for spring positions, February 15th for summer positions, and May 31st for fall positions. Send first year research and writing memos as a last resort only; my strong preference is for a writing sample on a topic unrelated to law. Whether academic credit is given is determined by the applicant’s law school. I will provide verification of hours and work performed as well as any evaluation requested by the applicant or the law school. I am advised that most law schools award credit on a Pass/Fail basis. Some law schools request copies of an intern’s work product, which will be provided on request. Materials should be submitted electronically to [email protected].

=== Civil - May 2021 ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. __-cv-_____-JLK [SECURITIES AND EXCHANGE COMMISSION], Plaintiff, v. [DEFENDANT], Defendant. [SAMPLE] JURY INSTRUCTIONS 1 [TABLE OF CONTENTS] 2 [SECTION 1.0: INTRODUCTORY INSTRUCTIONS] INSTRUCTION NO. 1.0 INTRODUCTION TO THE CASE AND THE TRIAL STRUCTURE During jury selection and the trial you have heard or will hear me use a few terms that you may not have heard before. I will briefly explain them to you. If there are other terms you don’t recognize, please let me know and I will explain them. The party who brings a lawsuit is called the plaintiff. In this case, the plaintiff is [the Securities and Exchange Commission], sometimes referred to as [the “SEC” or “the Commission.” The SEC is the agency of the federal government that is responsible for enforcing the securities laws of the United States. In everyday language, these are the laws dealing with the purchase and sale of financial investments such as stocks and bonds.] The party against whom the lawsuit is brought is called the defendant. In this case, the defendant is [Defendant’s Name], [who is the former Chief Executive Officer of [Type of Company] company named [Name of Company], which will often be called “[Company Abbreviation].”] Sometimes I will refer to the lawyers as “counsel”; that’s just another way of saying lawyer or attorney. Ms. Abiakam, who is in charge of taking care of you, is my courtroom deputy. Also in the courtroom is my court reporter, who is making stenographic notes of everything that is said, and my law clerk, who assists me in legal matters. Now I will briefly tell you what this case is about. [This case is about “insider trading,” which is when a person obtains “material,” “nonpublic information” regarding a certain “security” and then trades in that security or “tips” another person so that he can trade in that 3 security. It is a form of cheating in that the person who trades on the secret information has an unfair advantage. The SEC charges that while [Defendant’s Name] was the CEO of [Company], he “tipped” his close friends [Friend 1] and [Friend 2] with inside information about a $684 million investment by [Name of Investor] into [Company], and that both [Friend 1] and [Friend 2] traded in [Company] stock while knowing that secret inside information. The term “tipping” has a special definition in the insider trading context, which I will define in greater detail later in these instructions. The SEC also says that [Defendant’s Name] tipped [Friend 1] about [Company]’s third quarter 2007 earnings results before they were public, after a news article called into doubt whether [Company] would achieve its earnings estimates, and that [Friend 1] traded in [Company] stock while knowing the secret inside information. It is [Defendant’s Name]’s position that he is not liable for insider trading because any information [Defendant’s Name] may have conveyed to [Friend 1] or [Friend 2] was given in confidence, based on their long history of sharing nonpublic business information with each other and their mutual understanding that information conveyed within their relationships was to be kept confidential. He claims that, to the extent [Friend 1] and [Friend 2] traded on the information, they each violated his confidence by misusing, or “misappropriating,” the information for their own benefit. In addition, [Defendant’s Name] asserts that he did not intend to personally benefit or for his friends to benefit from any information he gave them and claims that he did not know his friends were going to or did trade on the information. Instead, he states that he had legitimate business reasons for conveying information to [Friend 1] and [Friend 2], since [Friend 1] was [Company]’s insurance broker and [Friend 2] was an investor in [Company] and a joint venture partner with [Company].] 4 The first step in the trial of this case is the selection of jurors. The second step is my reading of the instructions. Then come the opening statements. What is said in the opening statements is not evidence. It is a road map to show what lies ahead and what the evidence will be. After the opening statements, [the SEC] will present evidence to support its claim and [Defendant’s Name]’s lawyers may cross-examine its witnesses. After [the SEC]’s evidence, [Defendant’s Name] may present evidence and [the SEC]’s lawyers may cross-examine his witnesses. [the SEC] may then present what is known as rebuttal evidence to counter [Defendant’s Name]’s evidence. After the evidence is presented, the parties’ lawyers will make closing arguments explaining what they think the evidence has shown. What is said in the closing arguments is also not evidence. Once all of these steps are finished, I will read the instructions to be used in deciding the verdict, and you will go to deliberate. A jury is the judge of the facts in the case—that means you listen to the evidence in the case and apply to that evidence the law as I give it to you. That’s the short and simple description of what the job is. The essential requirement for a fair trial is that you decide the case based on all the evidence and the law presented at trial, and only the evidence and law presented at trial. So, from now until when you are permanently excused from this case, you should not talk about it with any witness, the defendant, any of the lawyers, or anyone else at all. Do not read or watch any news reports about this case, including on the internet or any other electronic media. You must not gather, or attempt to gather, any information or otherwise investigate this case or anything related to it. 5 You should also know that no one who is employed need be concerned about how your employer might react to your service on a jury during trial. There is a federal law that forbids any discrimination of any kind against anyone on account of jury service. If you need a note for your employer, please inform the jury coordinator or my courtroom deputy, and one will be provided to you. 6 INSTRUCTION NO. 1.1 INTRODUCTION TO INSTRUCTIONS AND PROCEDURES FOR TRIAL In any trial, there are, in effect, two judges. I am one of the judges; you are the other. I am the judge of the law. You, as jurors, are the judges of the facts. It is my duty to direct the trial and decide what evidence is proper for you to consider. When I reject evidence, I am saying that evidence may not legally be considered by you. I am not telling you what is true or not true. In explaining the law that you must follow, I will first give you some general instructions that apply in every case. Then, I will give you some specific laws that apply to this case, and finally, I will explain the procedures you should follow when deciding your verdicts. These instructions will be given to you for use during the trial. As judges of the facts, you must determine the facts from the evidence presented. The evidence consists of the testimony of witnesses, documents and other things allowed into the record as exhibits, and any facts to which the Government and the defendant agree or I say must be accepted as true. You are to consider all the evidence received in this trial and only that evidence. It will be up to you to decide what evidence to believe and how much of any witness’s testimony to accept or reject. At times during the trial, a lawyer may object to a question asked by another lawyer or to an answer by a witness. This means the lawyer is requesting that I make a decision on a specific law. Do not conclude anything from any objections or my rulings on the objections. When I “sustain” an objection, I am ruling that evidence cannot be presented or considered. When you hear that I have “overruled” an objection, I am allowing that evidence to be presented or considered. If I “sustain” an objection to a question, the witness may not answer it. Do not attempt to guess what answer might have been given if I had allowed the answer. If I “overrule” 7 the objection, the witness will be allowed to answer the question, and you should treat it as any other answer. If I tell you not to consider a particular statement, you may not refer to that statement in your discussions. When I say “admitted into evidence” or “received into evidence,” I mean that the statement or exhibit may be considered by you in making the decisions you must make at the end of the case. I am not indicating in any way that you must accept it, but only that you may consider it. If I tell you to consider a particular piece of evidence for a specific purpose, you may consider it only for that purpose. I may have to interrupt the trial at times to confer with the attorneys about the law that should apply. We may talk briefly at the bench. But, if our discussion takes more time, I will excuse you from the courtroom. I will try to avoid such interruptions whenever possible, but please be patient even if the trial seems to be moving slowly because our talks can often save time in the end. During the course of the trial, I may ask a question of a witness or an attorney. If I do, that does not mean I have any opinion about the facts in the case. I am only trying to bring out facts that you may consider. From time to time during the trial, I may also direct your attention to one of these instructions. Ordinarily, the attorneys will show you all the legally allowed evidence that is necessary for you to reach your verdicts. However, in rare situations, a juror may have a question that is very important for considering a necessary element of the case. In that situation, the juror may write out a question and give it to the courtroom deputy at the next recess. I will then consider that question with the lawyers. If it is a proper and necessary question, it will be asked. If it is not, I will tell you why and explain why you cannot consider what the answer to the 8 question might be. Please remember that responding to your notes takes time and effort. I usually have to talk the issue over with the attorneys, consider their arguments, and decide the correct answer. In some cases, we might have to do additional research. If you would like to take notes during the trial, you may. On the other hand, you do not have to take notes. If you decide to take notes, be careful not to get so involved in note taking that you become distracted. Remember that your notes will not necessarily reflect exactly what was said, so you should only use your notes as memory aids. You should not rely on your notes over your independent memory 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 their contents until I send you to decide the verdict at the end of the trial. Although the court reporter is making stenographic notes of everything that is said, you will not have a typewritten copy of the testimony to use during your discussions. Any exhibits admitted at trial, though, will be available to you at that time. You may not discuss the evidence in this case with each other until you have gone to the jury room to make your decision at the end of the trial. It is important that you wait until all the evidence is presented and you have again heard my instructions before you discuss the case with each other. In other words, keep an open mind and form no opinions until you can consider all the evidence and the instructions together. During the trial, you will receive all the evidence you legally may consider to decide the case. Gathering any information on your own that you think might be helpful in this case is against the law and violates your oath. Do not do any outside reading on this case, even including dictionaries or a bible, do not attempt to visit any places mentioned in the case, and do not in any 9 other way try to learn about the case outside the courtroom. Part of my job is to protect you from outside influences. Your job is to limit your decisions to what happens in this courtroom. I wish I did not have to spend so much time on this topic, but recent events around the United States and recent technologies require me to point out that some common practices and habits many of you enjoy are strictly forbidden for you as jurors. You may not, under any circumstances, have your cell phones, blackberries, smart phones or the like on when court is in session. Whether you are here or away from the court during recess you may not Google, tweet, text message, blog, post or anything else with those gadgets about anything to do with this case. If anyone does, it could cause a mistrial, meaning all of our efforts would have been wasted and we would have to start all over again with a new trial before a new jury. If you were to cause a mistrial by violating these orders, you could have to pay all the costs of this trial and perhaps be punished for contempt of court. What you may do is advise anyone who needs to know, such as family members, employers, employees, schools, teachers, or daycare providers that you are a juror in a case and the judge has ordered you not to discuss it until you have reached a verdict and been discharged from the case. At that point you will be free to discuss this case or search for any information about it to your heart’s delight. Fairness to all concerned requires that all of us connected with this case deal with the same information and with nothing other than the same information. The reason for this is that justice requires a full and public understanding of the basis for any verdict. If you follow these instructions, no one has the right to challenge your decisions and any criticism of your service as a juror will not be tolerated. 10 INSTRUCTION NO. 1.2 DUTY TO FOLLOW INSTRUCTIONS You, as jurors, are the judges of the facts. But in figuring out what actually happened, it is your sworn duty to follow all of the law as I explain it to you. You may not ignore or give special attention to any one instruction or question the wisdom or correctness of any rule I tell you about. You must not substitute or follow your own idea or opinion as to what the law is or should be. It is your duty to apply the law as I explain it to you, regardless of the result. In your discussions you must make sure that no one else on the jury ignores the instructions or attempts to decide the case on anything other than the law that is given to you by me and the evidence that has been presented in this trial. You must remember that we are all committed to equal justice under the law. Matters of race, religious belief, color, nationality, gender, and sexual orientation have no place in this process. To the best of your ability, you are to judge others as you would want others to judge you under the law I give you. The very heart of justice is that all apply the same law to the same evidence and leave our personal desires out of it. You should not read into these instructions or anything else I say or do as a suggestion as to what your verdict should be. That is entirely up to you. It is also your duty to base your verdict only on the evidence, without prejudice or sympathy. That is the promise you make and the oath you take. 11 INSTRUCTION NO. 1.3 EVIDENCE – GENERAL You must make your decision based only on the evidence that you see and hear here in court. Do not let rumors, guesses, or anything else that you may have seen or heard outside of court influence your decision in any way. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law I give you. That is how you will reach your verdict. You will decide what the facts are from the evidence that the parties will present to you during the trial. That evidence will include the sworn testimony of witnesses on both direct and cross-examination, documents and other things received into evidence as exhibits, and any facts on which the lawyers agree or which I may instruct you to accept as true. The following things are not evidence and you must not consider them as evidence in deciding the facts of this case: 1. The fact that [the Securities and Exchange Commission] filed this lawsuit is not evidence that [Defendant’s Name] violated the law. Similarly, the fact that [Defendant’s Name] denies [the SEC]’s allegations is not evidence that he did not violate the law. Both the complaint and the denial are merely the formal way in which the case is brought to court for you to decide. 2. Statements and arguments by lawyers are not evidence. The lawyers are not witnesses. What they say in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of the facts controls. 12 3. Questions and objections by the lawyers are not evidence. Lawyers have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by my ruling on it. 4. The lawyers may highlight parts of some exhibits. While the exhibit is evidence, the highlights are not. It is for you to determine the significance of the highlighted parts. 5. Testimony that I do not allow or that I instruct you to disregard is not evidence and must not be considered by you. 6. Anything you may see or hear when the Court is not in session is not evidence, even if what you see or hear is done or said by one of the parties or by one of the witnesses. During the trial, I may not let you hear the answers to some of the questions that lawyers ask. I may also rule that you cannot see some of the exhibits that the lawyers want you to see. And sometimes I may order you to ignore things that you saw or heard. I may “strike” things from the record, which means you cannot consider that piece of evidence. Do not even think about it. Do not guess what a witness might have said or what an exhibit might have shown. These things are not evidence, and you are bound by your oath not to let them influence your decision in any way. 13 INSTRUCTION NO. 1.4 EVIDENCE—DIRECT AND CIRCUMSTANTIAL—INFERENCES Generally speaking, there are two types of evidence. One is direct evidence, and the other is circumstantial evidence. Direct evidence is evidence that proves a fact directly. For example, where a witness testifies to what he or she saw, heard, or observed, that is direct evidence. Circumstantial evidence is evidence that tends to prove a fact by proof of other facts. To give a simple example, suppose that when you came into the courthouse today the sun was shining and it was a nice day, but the courtroom blinds were drawn and you could not look outside. Then later, as you were sitting here, someone walked in with a dripping wet umbrella and, soon after, somebody else walked in with a dripping wet raincoat. Now, you cannot look outside of the courtroom and you cannot see whether or not it is raining. So you have no direct evidence of that fact. But the combined facts about the umbrella and the raincoat make it reasonable for you to “infer” that it had begun raining. An inference is a conclusion that reason and common sense may lead you to make based on facts which have been proved. While you must consider only the evidence in this case, you can make reasonable inferences from the testimony and exhibits, inferences you think are justified by common experience. The law makes no distinction between direct and circumstantial evidence. Circumstantial evidence is of no less value than direct evidence, and you may consider either or both, and may give them such weight as you conclude you should. 14 INSTRUCTION NO. 1.5 CONFERENCES WITH COUNSEL It may be necessary for me to talk to the lawyers about an issue of law out of your hearing. The purpose of these conferences is to decide how certain legal matters are to be treated. We will not be discussing factual matters. Sometimes we will talk briefly at the bench. But if some of these conferences take more time, I will excuse you from the courtroom. I will try to avoid such interruptions whenever possible, but please be patient even if the trial seems to be moving slowly because conferences often actually save time in the end. The lawyers and I will do what we can to limit the number and length of these conferences. 15 INSTRUCTION NO. 1.6 CREDIBILITY OF WITNESSES In deciding the facts of this case, you will have to decide which witnesses to believe and which witnesses not to believe. You are the only judges of the credibility or “believability” of each witness and the weight to be given to the witness’s testimony. You should think about the testimony of each witness you hear and decide whether you believe all or part of what each witness has to say and how important that testimony is. In making that decision, I suggest that you ask yourself a few questions: Did the witness seem to be honest? Did the witness have any reason not to tell the truth? Did the witness have a personal interest in the outcome of this case? Did the witness have any relationship with either the government or the defense? Did the witness have a good memory? Did the witness clearly see or hear the things about which he or she testified? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness’s testimony differ from the testimony of other witnesses? When weighing the conflicting testimony, you should consider whether the conflict has to do with a significant fact or with an unimportant detail. And you should keep in mind that an innocent failure to remember is not uncommon. If you believe a witness has willfully lied regarding any material fact, you have the right to disregard all or any part of that witness’s testimony. In reaching a conclusion on a particular point or a verdict in this case, do not make any decisions simply because there were more witnesses on one side than on the other. If a party or a representative of a party testifies, that testimony should be weighed and its credibility evaluated in the same way as that of any other witness. 16 INSTRUCTION NO. 1.7 SINGLE WITNESS If, after consideration of all the evidence in the case, you hold greater belief in the accuracy and reliability of one witness, the testimony of that single witness is sufficient to prove any fact and can justify a verdict, even if a number of other witnesses testified to the contrary. 17 INSTRUCTION NO. 1.8 EXPERT WITNESSES Witnesses are generally limited to testifying about what they saw, heard, felt or other matters relating to the five senses. In some situations, however, scientific, technical, or other specialized knowledge may assist you in understanding the evidence or in finding a fact to be true or not true. A witness who has special knowledge, skill, experience, training, or education, may testify and state his or her opinion based on that background. When a witness is qualified to express an opinion based on his or her expertise, that witness’s background is relevant to the credibility of such opinion. You do not have to accept expert opinions. You should consider opinion testimony just as you consider other testimony in this trial. Give opinion testimony as much weight as you think it deserves, considering the education and experience of the witness, the reasons given for the opinion, and other evidence in the trial. 18 INSTRUCTION NO. 1.9 EQUALITY OF PARTIES All persons are equal before the law regardless of race, national origin, gender, citizenship, [whether the party is a corporation or whether the party is an agency of the United States government]. I tell you that all parties are equal before the law to remind you that you must base any decision in this case on the law and the facts, [not outside factors such as corporate status or status as a government agency]. 19 INSTRUCTION NO. 1.10 BURDEN OF PROOF This is a civil, rather than criminal, case and therefore the Securities and Exchange Commission has the burden of proving its claim by what is called a preponderance of the evidence. “By a preponderance of the evidence” means that no matter who produces the evidence, when you consider the claim of [the SEC] in light of all the facts, you believe that [the SEC]’s claim is more likely true than not true. To put it differently, if you were to put all of the evidence in favor of [the SEC] and all of the evidence in favor of [Defendant’s Name] on opposite sides of the scale, [the SEC] would have to make the scale tip to its side. If [the SEC] fails to meet this burden, your verdict must be for [Defendant’s Name]. In evaluating whether [the Securities and Exchange Commission] has met its burden on its claims, you should also know that the law does not require parties to call as witnesses all persons who may have been involved in the case or who may appear to have some knowledge of the issues brought up in this trial. Nor does the law require parties to present as exhibits all papers or other things mentioned in the evidence in the case. 20 [SECTION 2.0: INSTRUCTIONS FOR USE DURING TRIAL (e.g., LIMITING INSTRUCTIONS)] INSTRUCTION 2.0 CHARTS AND SUMMARIES Charts or summaries that are not received in evidence are known as demonstratives, while charts or summaries that are received in evidence are exhibits. The only purpose of a demonstrative chart or summary is to help explain the evidence in the case. The demonstrative is not evidence itself and does not prove any fact. Some charts or summaries, however, are evidence because they accurately and reliably summarize complex or voluminous evidence in a manner that may assist you in understanding that evidence. Such a summary or chart exhibit is only as valid and reliable as the underlying evidence it summarizes and is not independent evidence on its subject matter. 21 INSTRUCTION NO. 2.1 STIPULATED FACTS Before the trial of this case, the Court held a conference with the lawyers for both of the parties. At this conference, the parties entered into certain stipulations of facts, which means the parties agreed that the following facts can be taken as true without further proof. 1. [LIST OF STIPULATED FACTS] 22 INSTRUCTION NO. 2.2 JUDICIAL NOTICE OF PHONE NUMBERS “Judicial notice” is when I accept into evidence well-known facts such as time, date and place, or legal matters like existing government regulations. For this case, I have taken “judicial notice” of the following phone numbers: • [Company/Individual]: [Phone Number] and • [Company/Individual]: [Phone Number]. You should accept these facts as true. 23 INSTRUCTION NO. 2.3 [EXPERT WITNESS [NAME OF WITNESS]’S USE OF THE TERMS “MATERIAL” AND “MATERIALITY”] [[Name of Witness] is a Chartered Financial Analyst who will provide expert testimony during this trial. “Material” and “materiality” are terms that are commonly used in the field of financial analysis. To the extent [Name of Witness] uses these terms in his testimony, he will explain how these terms are used by financial analysts and what he means by them. The legal definition of materiality can be found in Instruction No. 3.2. [Name of Witness]’s testimony may be relevant to the legal standard of materiality, but he will not instruct you regarding the legal definition of materiality nor apply the legal definition of materiality to the facts of this case.] 24 INSTRUCTION NO. 2.4 EVIDENCE ADMITTED FOR A LIMITED PURPOSE [Exhibits 88 and 253 are statements that were made] by [Friend 2] and [Friend 3] before this trial and have been admitted into evidence not for the truth of what is stated in the documents but for the limited purpose of showing that [[Friend 2] and [Friend 3] falsely denied that they engaged in insider trading]. Similarly, [Exhibits 2-13, 15-17, 181-188, 254-61, and 263-65 are emails of [Friend 1] and [Friend 3]] that have been admitted into evidence not for the truth of what is stated in the emails but for the limited purpose of showing that [[Friend 2] or [Friend 3] possibly had knowledge of inside information and planned to trade on that information]. You may consider these exhibits for the limited purposes I have explained and not to prove the truth of any statement contained in them. 25 INSTRUCTION NO. 2.5 INVOCATION OF FIFTH AMENDMENT RIGHT In this case, witnesses [Friend 2] and [Friend 3] have asserted their right to not answer questions under the Fifth Amendment of the United States Constitution. Under the Fifth Amendment of the United States Constitution, an individual has a constitutional right to decline to answer questions on the ground that the answers to those questions may tend to incriminate him or her. Where a witness has refused to answer a question by invoking his or her Fifth Amendment right, for certain questions you may, but you need not, draw a negative inference against the witness based on the witness’s refusal to answer a particular question. A negative inference means that you can infer from the witness’s assertion of his Fifth Amendment privilege that the answer would have been adverse, or harmful, to the witness’s interest. You can make this inference only if that inference is warranted by the facts surrounding the case and there is independent, corroborating evidence for the inference. However, you need not make such an inference. 26 [SECTION 3.0: SUBSTANTIVE INSTRUCTIONS] INSTRUCTION NO. 3.0 LIABILITY IN GENERAL With the previous instructions in mind, we now turn to the specific claim brought by [the SEC] against [Defendant’s Name]. In evaluating the claim, you must decide whether [the SEC] has proved each of its elements “by a preponderance of the evidence.” This is known as proving liability. If you find that [the SEC] has proven each element of its claim so that [Defendant’s Name] is liable, then at a later date, I will decide what money or other relief should be awarded to [the SEC]. The determination of that relief should not play any part in your deliberations. 27 INSTRUCTION NO. 3.1 [SECURITIES EXCHANGE ACT § 10[b]—17 C.F.R. § 240.10b-5 INSIDER TRADING ELEMENTS OF LIABILITY] [The SEC claims that [Defendant’s Name] violated the Securities Exchange Act by engaging in what is known as “insider trading” in connection with [Friend 1] and/or [Friend 2]’s purchase of [Company] stock and options. For you to find that [Defendant’s Name] violated Section 10[b] of the Securities Exchange Act and the related Rule 10b-5, the SEC must prove both of the following elements on which the parties do not agree: (1) That [Defendant’s Name], directly or indirectly, “used a device, scheme, or artifice to defraud” in connection with the purchase or sale of a “security”; AND (2) That [Defendant’s Name] acted “knowingly” or with “recklessness.” Each of these elements has requirements within it and terms that must be defined, which I will explain in the following instructions. If you find that the SEC has proven each element “by a preponderance of the evidence,” you should return a verdict for the SEC on its claim. But if you find that the SEC has failed to prove either element, your verdict must be for [Defendant’s Name]. As stated before in Instruction No. 1.10, “by a preponderance of the evidence” means that, when you consider the claim of the SEC in light of all the facts, you believe that the SEC’s claim is more likely true than not true.] 28 INSTRUCTION NO. 3.2 [DEVICE, SCHEME, OR ARTIFICE TO DEFRAUD IN CONNECTION WITH THE PURCHASE OR SALE OF A SECURITY] [The “device, scheme, or artifice to defraud” that the SEC alleges [Defendant’s Name] used in this case is known as “insider trading.” The way in which the SEC claims [Defendant’s Name] committed insider trading is that he was a “corporate insider” who gave “material,” “nonpublic information” about his corporation to another person for that person to trade (which is known as “tipping”). To prove the first element in Instruction No. 3.1—that [Defendant’s Name] used a “device, scheme, or artifice to defraud” in connection with the purchase or sale of a “security,” the SEC must prove that: (1) [Defendant’s Name], a “corporate insider” at [Company], learned and gave “material,” “nonpublic information” about [Company] to [Friend 1] and/or [Friend 2]; (2) [Defendant’s Name] breached his duty to [Company and its shareholders by disclosing that “material,” “nonpublic information” to [Friend 1] and/or [Friend 2] for a “personal benefit”; AND (3) After receiving the “material,” “nonpublic information” from [Defendant’s Name], Friend 1] and/or [Friend 2] traded [Company] “securities.” A “corporate insider” is a person who has a relationship of trust and confidence with a corporation and its shareholders. The SEC and [Defendant’s Name] agree that he was a corporate insider at [Company]. A person who receives “material,” “nonpublic information” as an insider, who gives that information to another person for a personal benefit, breaches a duty owed to a corporation and its shareholders. 29 Information is “material” if there is a substantial likelihood a reasonable investor would attach importance to the information in deciding whether to purchase or sell the stock. Put another way, there must be a substantial likelihood that a reasonable investor would view the information as significantly altering the total mix of available information. A minor or trivial detail is not material information. The materiality of information relating to a corporate event, such as investment in the company, depends on [1] the probability that the event will occur and [2] its significance to the company. A substantial change in the company’s stock when the information is made public is a factor to be considered in determining the materiality of the nonpublic information. “Nonpublic Information” is information that is not generally available to the public through such sources as press releases, trade publications, or other publicly available sources. Information is considered nonpublic for purposes of insider trading until such information has been effectively spread in a way to ensure its availability to the investing public. “Personal benefit” for these purposes is broadly defined and includes anything of value, such as money, reputational benefit to the tipper, or the benefit one would obtain from simply making a gift of confidential information to a trading relative or friend. This personal benefit may also be inferred from a relationship between tipper and tippee that suggests a pattern of favors being exchanged between the two or that the tipper intended to benefit the tippee. A “security” is an investment in a commercial, financial, or other business enterprise with the expectation that profits or other gain will be produced by others. Common types of securities include, but are not limited to, stocks, options, and bonds.] 30 INSTRUCTION NO. 3.3 [KNOWINGLY OR RECKLESSLY] [The second element that the SEC must prove is that [Defendant’s Name] acted “knowingly” or with “recklessness” in not knowing. The term “knowingly” means to act with the intent to deceive, manipulate, or defraud. If a person is aware that something is highly likely to happen and deliberately disregards that fact or if a person closes his eyes to what would otherwise have been obvious, you may find that he acted knowingly. However, a person does not act knowingly if he acts inadvertently, carelessly, or by mistake. To act with “recklessness” means to engage in highly unreasonable conduct that is an extreme departure from what an ordinary person would have realized and done to avoid the harm likely to follow. It is not necessary for the SEC to prove that [Defendant’s Name] knew that he was violating an SEC rule. It is also not necessary for the SEC to prove that [Defendant’s Name] knew with certainty that [Friend 1] and/or [Friend 2] would trade on the information he gave them. But, if you find that [Defendant’s Name] believed in good faith that any information he disclosed to [Friend 1] and [Friend 2] would not be used for trading purposes, he did not act “knowingly” or “recklessly.” As explained in Instruction 1.5, evidence can be either direct or circumstantial. There is usually no way that a defendant’s state of mind can be proved directly because no one can read another person’s mind and tell what that person is thinking. But a defendant’s state of mind can be proved indirectly from the surrounding circumstances. Thus, to determine [Defendant’s Name]’s state of mind at a particular time, you may consider evidence about what [Defendant’s 31 Name] said, what he did or failed to do, how he acted, and all the other facts and circumstances shown by the evidence that may prove what was in [Defendant’s Name]’s mind at that time.] 32 INSTRUCTION NO. 3.4 [LIABILITY OF OTHER ACTORS NOT DETERMINATIVE] [In this case, [Defendant’s Name] is the alleged tipper, the person who gave the information, and [Friend 1] and [Friend 2] are the alleged tippees, the people who received the information and traded on it. The law permits a tippee to be liable for insider trading under the Securities Exchange Act even when the tipper did not violate the law. This sometimes happens when a tipper shares material, nonpublic information inside of a confidential relationship and expects that information to remain confidential. If the tippee misuses, or “misappropriates,” that information to trade in securities, he breaches the duty of confidentiality he owes to the tipper and can be liable for insider trading. But, even though the tippee is liable, the tipper may not be if, for example, he did not act knowingly or recklessly or he does not receive a personal benefit. However, if the elements list in Instruction No. 3.1 and described in Instructions No. 3.2 and 3.3 are fulfilled with respect to the tipper, the tipper is liable for insider trading whether or not he had a confidential relationship with the tippee.] 33 [SECTION 4.0: FINAL INSTRUCTIONS] INSTRUCTION NO. 4.0 GENERAL FINAL INSTRUCTIONS Now that you have heard the evidence and the parties’ arguments, it is your duty to find the facts from all the evidence in the case. And to those facts, you must apply and follow the laws contained in these instructions, whether you agree with them or not. If there is any difference between the law stated by the lawyers and the law in these instructions, you are governed by my instructions. You must follow all of these instructions and not single out some and ignore others; they are all equally important. The decision you reach by applying the law in these instructions to the facts as you find them is called a verdict. You must not read into these instructions or into anything I say or do any suggestions as to what verdict you should return. Your verdict is a matter entirely for you to decide. You must perform your duties as jurors without bias or prejudice as to any party. The law does not permit you to be controlled by sympathy, bias, or public opinion. All parties expect that you will carefully consider all the evidence, follow the law in these instructions, and reach a just verdict, regardless of the consequences. You have taken an oath promising to do so. 34 INSTRUCTION NO. 4.1 JURY—PROCEDURES In a moment, you will be taken to the jury room so you can begin your discussions on the verdict. You will have a copy of the instructions and verdict form, and any exhibits I allowed will also be in the jury room for you to review. The original exhibits are a part of the court record. Do not place any marks or notes on them. Your copy of the instructions may be marked or used in any way you see fit. When you go to the jury room, you must choose one of you to serve as your Presiding Juror. He or she will direct your discussions and speak for you here in court. You will then talk about the case with your fellow jurors to try to reach an agreement. Your verdict must be unanimous, meaning you must all completely agree. Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it with the other jurors, and listened to their views. I offer some suggestions on how you might do this in the next jury instruction, entitled “Jury— Deliberations.” One thing you should do in your discussions is to follow these jury instructions and the verdict form. Not only will you be more productive if you understand the legal standards, but for a verdict to be valid, you must follow the instructions during your discussions. Remember, you are judges of the facts, but you have to obey your oath to follow the law stated in these instructions. Your talks will be secret. You will never have to explain your verdict to anyone. 35 INSTRUCTION NO. 4.2 JURY—DELIBERATIONS Once you have elected your Presiding Juror as directed by the previous instruction, you can move forward as you agree you should. I am not telling you how to proceed, but I offer the following suggestions that other juries have found helpful. They should help you move forward in an orderly way with each juror fully taking part so that you can arrive at a verdict that is satisfactory to each of you. First, it is the responsibility of the Presiding Juror to encourage good communication and participation by all jurors and to maintain fairness and order. Your Presiding Juror should be able to make your discussions useful even when jurors cannot agree. Second, the Presiding Juror should let each of you speak and be heard before stating his or her own views. Third, the Presiding Juror should not try to promote or permit anyone else to promote his or her personal opinions by pressuring, intimidating, or bullying others. Fourth, the Presiding Juror should make certain that discussions are not rushed to reach a conclusion. If the Presiding Juror you select does not meet these standards, he or she should voluntarily step down or should be replaced by a majority vote. After you select a Presiding Juror you should think about choosing a secretary to tally the votes, help keep track of who has or hasn’t spoken on each issue, to make sure everyone is there during the discussions, and to otherwise help the Presiding Juror. Some juries are tempted to start by holding a preliminary vote on the case to “see where we stand.” It is better, however, not to vote until a full discussion is had on the issue, otherwise 36 you might lock yourself into a certain view before thinking about the other and possibly more reasonable interpretations of the evidence. Experience has also shown that such early votes often cause disruptive, inefficient debate and ineffective decision-making. Instead, I suggest the Presiding Juror begin your discussions by getting you to create informal rules for how you will proceed. These rules should assure that you will focus on, analyze, and evaluate the evidence fairly and efficiently and that each of your views is heard and considered before any decisions are made. No one should be ignored. You may agree to discuss the case in the order of the questions presented in the special verdict form or in chronological order or based on the testimony of each witness. Whatever order you select, however, it is advisable to be consistent and not jump from one topic to another. To move the process along in the event you reach a controversial issue, it is wise to pass it temporarily and move on to less controversial ones and then come back to it. You should then continue through each issue in the order you have agreed upon unless a majority of you agrees to change the order. It is helpful for votes to be taken by secret ballot, as it helps you to focus on the issues and not be overly influenced by others. Each of you should also consider any disagreement you have with another juror or jurors as an opportunity to improve your decision. You should treat each other with respect. Any differences in your views should be discussed calmly and, if a break is needed for that purpose, it should be taken. As I mentioned at the beginning of this trial, each of you is responsible for making sure that no juror bases a decision on matters that are not evidence. Each of you should listen attentively and openly to one another before making any judgment. This is sometimes called “active listening” and it means that you should not listen 37 with only one ear while thinking about a response. Only after you have heard and understood what the other person is saying should you think about a response. Obviously, this means that, unlike TV talk shows, you should try very hard not to interrupt. If one of you is going on and on, it is the Presiding Juror who should suggest that the point has been made and it is time to hear from someone else. You each have a right to your own opinion, but you should be open to others. When you focus your attention and best listening skills, others will feel respected and, even while they may disagree, they will respect you. It helps if you are open to the possibility that you might be wrong or at least that you might change your mind about some issues after listening to other views. Not understanding each other can hurt your efforts. Ask for clarification if you do not understand or if you think others are not talking about the same thing. From time to time the Presiding Juror should set out the items on which you agree and those on which you have not yet agreed. In the rare case that a juror is not following the Court’s instructions or complying with the juror’s oath, the Presiding Juror should alert the Court by sending a note as explained in Instruction No. 4.3. Even with all your efforts, it is still possible that there may be serious disagreements. In that happens, realize and accept that “getting stuck” is often part of the decision-making process. It is easy to fall into the trap of believing that there is something wrong with someone who is not ready to move on. Thinking that way is not helpful. It can lead to focusing on personalities rather than the issues. It is best to be patient with one another. At such times, slower is usually faster. There is a tendency to set deadlines and try to force decisions. Taking a break or more time, however, often helps shorten the overall process. 38 Every once in a while, it is a good idea for you all to express your mutual respect for each other and to repeat your commitment to work through any differences. Then, you will most likely decide a verdict that leaves each of you satisfied that you achieved justice. 39 INSTRUCTION NO. 4.3 COMMUNICATIONS WITH JUDGE If it becomes necessary during your discussions to communicate with me, you may send a folded note through the Court Security Officer, signed by one of you. Do not reveal the content of your note to the Court Security Officer. No member of the jury should try to communicate with me except by signed writing; and I will only communicate with any member of the jury on anything concerning the case in writing or orally here in open court. You should never reveal to me, the Court Security Officer, or anyone else not on the jury where you stand or what your vote might be until after you have reached your verdict or I have let you go. If you send a note to me with a question or request for further direction, please think about how a response takes a lot of time and effort. Before giving an answer or direction I must first tell the attorneys and bring them back to the court. I must discuss the note with them, listen to arguments, research the law, if necessary, and reduce the answer or direction to writing. There may be some question that, under the law, I am not permitted to answer. If I cannot answer the question, I will tell you that. Please do not guess about what the answer to your question might be or why I am not able to answer a particular question. In some instances jurors request that certain testimony be read to them. This cannot be done as it is inappropriate for the court to single out testimony. You must rely on your own memory. 40 INSTRUCTION NO. 4.4 UNANIMOUS AGREEMENT AND JURY VERDICT FORM To help you, we have given you each copies of a document called a Jury Verdict Form. After you reach a verdict, the Presiding Juror will mark the answers agreed to by each and every juror in the spaces on the Original Jury Verdict Form. You must reach unanimous agreement on each question you answer on the Form. [There is only a single claim in this case, and to prove that claim, the SEC has presented evidence under three different theories. Each Section on the Verdict Form represents one of the SEC’s theories. For the verdict to be in favor of the SEC, ALL of your responses under any ONE of the Sections (or theories) must be YES, which would show that you have decided the SEC proved its claim under at least one of its theories. For a verdict to be in favor of [Defendant’s Name], at least ONE of your responses under EACH of the Sections must be NO, which would show that you have decided the SEC did not prove one element for each of its theories of the claim.] Once you have completed the Original Jury Verdict Form, the Presiding Juror should date the Form, sign it, and then the rest of you should sign it. When you are done, the Presiding Juror should tell the Court Security Officer who is outside the jury room that you have reached a verdict, but do not tell the Court Security Officer what your verdict is. The Court Security Officer will then inform me that you have reached a verdict. 41

=== Criminal - February 2019 ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. __-cr-____-JLK UNITED STATES OF AMERICA, Plaintiff, v. [DEFENDANT’S NAME], Defendant. [SAMPLE] JURY INSTRUCTIONS 1 [TABLE OF CONTENTS] 2 [SECTION 1.0: INTRODUCTORY INSTRUCTIONS] INSTRUCTION NO. 1.0 INTRODUCTION TO THE CASE AND THE TRIAL STRUCTURE This criminal case has been brought by the United States Government. I will sometimes refer to the Government as the prosecution. The Government is represented by [Attorney’s Name]. The defendant, [Defendant’s Name], is represented by [Attorney’s Name]. Sometimes I will refer to the lawyers as “counsel”; that’s just another way of saying lawyer or attorney. Ms. Abiakam, who is in charge of taking care of you, is my courtroom deputy. Also in the courtroom is my court reporter, who is making stenographic notes of everything that is said, and my law clerk, who assists me in all legal matters. An Indictment is a description of the charges made by the Government against a defendant; it is not evidence of guilt or anything else. The Indictment against [Defendant’s Name] contains [three] criminal charges in separate counts: Count 1 charges him with [conspiracy to commit bank robbery in the spring of 2014. Count 2 charges him with committing a bank robbery with a dangerous weapon. Count 3 charges him with a different conspiracy to commit a bank robbery occurring from January to March of 2015. One other person, [Coconspirator’s Name], is charged in the Indictment, but he is not on trial here. You may hear evidence about that individual and his alleged involvement in these crimes, but you will not be asked to decide verdicts for him.] The Government alleges the following facts in support of each count. [Count 1: Conspiracy to Commit Bank Robbery (2014) • Between in or about April 2014 and on or about June 18, 2014, [Coconspirator’s Name] and [Defendant’s Name] and others conspired to commit Bank Robbery by taking 3 property from Wells Fargo Bank [a bank insured by the Federal Deposit Insurance Corporation]. • During the Spring of 2014, [Coconspirator’s Name] and [Defendant’s Name] met with another member of the conspiracy who worked at Wells Fargo Bank. The third member explained to the others that one of the members would need to access the vault to get the most money from the bank and that they would get more money at a busier branch of the bank. • On or about June 13, 2014, a Black Honda Element was stolen. • On June 17, 2014, around 2:15 p.m., [Coconspirator’s Name] and [Defendant’s Name] entered the Wells Fargo Bank in Wheat Ridge, Colorado with handguns. They ordered customers and employees to get down on the floor. • At gunpoint, one of the members of the conspiracy ordered the manager to open the vault by threatening harm if his orders were not obeyed. That member produced black plastic garbage bags and ordered the bank employees to place the money inside the vault into the bags. To make the employees move faster, that defendant cycled the slide on his handgun and pointed it at the manager. • While that member of the conspiracy was in the vault, another member was in the lobby area of the bank controlling the other bank employees and customers who had been ordered to the floor. That member kicked one bank employee and pointed his weapon at the employee’s head and asked her if she had pushed an alarm button. Customers who entered the bank during the robbery were ordered at gunpoint to the floor. • After putting the money from the vault into the garbage bags, [Coconspirator’s Name] and [Defendant’s Name] left the bank in the stolen black Honda Element. 4 [Coconspirator’s Name] and [Defendant’s Name] later divided the over $600,000 that had been stolen. • On June 17, 2014, the stolen Honda Element was driven to an open space in Adams County, Colorado, about 4.5 miles from the Wells Fargo bank that had been robbed. It was set on fire, and [Coconspirator’s Name] and [Defendant’s Name] ran from the direction of the burning vehicle and got into a silver Jeep Cherokee. • On or about June 18, 2014, one of the members of the conspiracy delivered to the third member, the Wells Fargo employee, a portion of the proceeds from the bank robbery. Count 2: Armed Bank Robbery • On or about June 17, 2014, [Coconspirator’s Name] and [Defendant’s Name] committed the bank robbery described above and risked the lives of Wells Fargo Bank employees and others during it by using a dangerous weapon. Count 3: Conspiracy to Commit Bank Robbery (2015) • Between in or about February 2015 and March 18, 2015, [Coconspirator’s Name] and [Defendant’s Name] conspired to commit Bank Robbery by taking property from a bank insured by the Federal Deposit Insurance Corporation. • On March 3, 2015, [Coconspirator’s Name] met with an undercover FBI agent he thought was a person employed as a driver of an armored car company that delivered money to banks. At the meeting, [Coconspirator’s Name] and the FBI agent discussed robbing cash delivered by the armored car. One option they talked about was [Coconspirator’s Name] and a person he said was his partner robbing a bank shortly after the armored car made a large delivery of cash to a bank. The FBI agent told [Coconspirator’s Name] that he would be able to inform him and his partner when a very 5 large deposit was about to be made. • On March 5, 2015, [Coconspirator’s Name] gave an undercover FBI agent a cellphone to have secure contact between them while planning the bank robbery. [Coconspirator’s Name] advised the FBI agent that he would arrange to have his partner meet him. • On March 9, 2015, the FBI agent met [Coconspirator’s Name] and [Defendant’s Name] and talked more about planning and carrying out a bank robbery at a bank where the FBI agent would deliver a large amount of cash. [Defendant’s Name] advised the FBI agent that he would provide him with another untraceable cellphone to help with planning and carrying out the bank robbery. • On March 11, 2015, [Defendant’s Name] met with the FBI agent and told him he did not have the phone yet. They talked about the bank robbery, and [Defendant’s Name] promised the FBI agent that mistakes made after a prior robbery would not happen this time. [Defendant’s Name] told the FBI agent that [Coconspirator’s Name] and another person would go into the bank and rob it while he was in the parking lot of the bank as a lookout. [Coconspirator’s Name] arrived at the meeting and the three agreed to meet in the near future to drive around and inspect possible bank locations where a robbery might occur. • Using the phone he had been given, on March 13, 2015, the FBI agent called [Coconspirator’s Name] and told him that the next Tuesday or Wednesday [March 17 or 18] might be a good time to rob the bank. On March 13, [Defendant’s Name] advised the member of the 2014 conspiracy who was a Wells Fargo employee that “they” were going to rob a bank next week with Julio [the undercover Name of the FBI agent]. • On March 15, 2015, [Coconspirator’s Name] and [Defendant’s Name] met with the FBI 6 agent and drove around areas in Denver to get information on the banks and the area around the banks to prepare to go into the bank and escape after the robbery. The FBI agent gave a sketch of the inside of two specific banks to [Coconspirator’s Name]. [Defendant’s Name] told the FBI agent he would give him a new phone on March 17, 2015, so the FBI agent could tell [Coconspirator’s Name] and [Defendant’s Name] the time and location of a large cash deposit to a specific bank. [Coconspirator’s Name] and [Defendant’s Name] talked to the FBI agent about a code on the cellphone for when the deposit would be made and a code to use if the plan should be cancelled.] [Defendant’s Name] has pleaded not guilty to each count and is presumed innocent. Like the Indictment, his pleas are not evidence. The Government’s charges in the Indictment and the defendant’s pleas are how a criminal case ends up being decided by a jury. [Defendant’s Name] may not be found guilty on any count unless all twelve jurors unanimously find that the Government has proved his guilt on that count beyond a reasonable doubt. The first step in the trial is the selection of jurors. The second step is my reading of the instructions. Then come the opening statements. The Government in its opening statement will explain what evidence it intends to present. Just as the Indictment and [Defendant’s Name]’s pleas are not evidence, neither is an opening statement. It is a road map to show what lies ahead and what the evidence will be. After the Government’s opening statement, [Defendant’s Name]’s attorney may make an opening statement, but he is not required to make one. Likewise, if made, that opening statement is not evidence, but is meant to lay out the defense against the charges. The Government presents its evidence first. After the Government’s evidence, the defendant may present evidence, but he is not required to do so. This is because [Defendant’s 7 Name] is presumed innocent, and it is the Government that must prove his individual guilt beyond a reasonable doubt. If the defendant submits evidence, the Government may introduce rebuttal evidence, or evidence intended to contradict his evidence. After all the evidence on both sides has been presented, the Government and the defense will each be given time for their final arguments. Again, these arguments are not evidence. Once all of these steps are finished, I will read the instructions to be used in deciding the verdict, and the jury will go to deliberate. A jury is the judge of the facts in the case—that means the jurors listen to the evidence in the case and apply to that evidence the law as I give it to them. That’s the short and simple of what the job is. The essential requirement for a fair trial is that the jury decide the case based on all the evidence and the law presented at trial, and only the evidence and law presented at trial. So, from now until when you are permanently excused from this case, you should not talk about it with any witness, the defendant, any of the lawyers, or anyone else at all. Do not read or watch any news reports about this case, including on the internet or any other electronic media. You must not gather, or attempt to gather, any information or otherwise investigate this case or anything related to it. You should also know that no one who is employed need be concerned about how their employer might react to their service on a jury during trial. There is a federal law that forbids any discrimination of any kind against anyone on account of jury service. If you need a note for your employer, please inform the jury coordinator or my courtroom deputy, and one will be provided to you. 8 INSTRUCTION NO. 1.1 INTRODUCTION TO INSTRUCTIONS AND PROCEDURES FOR TRIAL In any trial there are, in effect, two judges. I am one of the judges; you are the other. I am the judge of the law. You, as jurors, are the judges of the facts. It is my duty to direct the trial and decide what evidence is proper for you to consider. When I reject evidence, I am saying that evidence may not legally be considered by you. I am not telling you what is true or not true. It is your responsibility to decide that based on the evidence that you can legally consider. It is also my duty to explain to you the law that you must follow and apply in deciding your verdicts. In explaining the law that you must follow, I will first give you some general instructions that apply in every criminal case—for example, instructions about burden of proof and insights that may help you to judge whether to believe a witness. Then, I will give you some specific laws that apply to this case, and finally, I will explain the procedures you should follow when deciding your verdicts. These instructions will be given to you for use during the trial. As judges of the facts, you must determine the facts from the evidence presented. The evidence consists of the testimony of witnesses, documents and other things allowed into the record as exhibits, and any facts to which the Government and the defendant agree or I say must be accepted as true. You are to consider all the evidence received in this trial and only that evidence. It will be up to you to decide what evidence to believe and how much of any witness’s testimony to accept or reject. At times during the trial, a lawyer may object to a question asked by another lawyer or to an answer by a witness. This means the lawyer is requesting that I make a decision on a specific law. Do not conclude anything from any objections or my rulings on the objections. If I “sustain” 9 an objection to a question, the witness may not answer it. Do not attempt to guess what answer might have been given if I had allowed the answer. If I “overrule” the objection, the witness will be allowed to answer the question, and you should treat it as any other answer. If I tell you not to consider a particular statement, you may not refer to that statement in your discussions. When I say “admitted into evidence” or “received into evidence,” I mean that the statement or exhibit may be considered by you in making the decisions you must make at the end of the case. I am not indicating in any way that you must accept it, but only that you may consider it. If I tell you to consider a particular piece of evidence for a specific purpose, you may consider it only for that purpose. I may have to interrupt the trial at times to confer with the attorneys about the law that should apply. We may talk briefly at the bench. But, if our discussion takes more time, I will excuse you from the courtroom. I will try to avoid such interruptions whenever possible, but please be patient even if the trial seems to be moving slowly because our talks can often save time in the end. During the course of the trial, I may ask a question of a witness. If I do, that does not mean I have any opinion about the facts in the case. I am only trying to bring out facts that you may consider. From time to time during the trial, I may also direct your attention to these instructions. Ordinarily, the attorneys will show you all the legally allowed evidence that is necessary for you to decide your verdicts. However, in rare situations, a juror may have a question that is very important for considering a necessary element of the case. In that situation, the juror may write out a question and give it to the courtroom deputy at the next recess. I will then consider that question with the lawyers. If it is a proper and necessary question, it will be asked. If it is 10 not, I will tell you why and explain why you cannot consider what the answer to the question might be. Please remember that responding to your notes takes time and effort. I usually have to talk the issue over with the attorneys, consider their arguments, and decide the correct answer. In some cases, we might have to do additional research. If you would like to take notes during the trial, you may. On the other hand, you do not have to take notes. If you decide to take notes, be careful not to get so involved in note taking that you become distracted. Remember that your notes will not necessarily reflect exactly what was said, so you should only use your notes as memory aids. You should not rely on your notes over your independent memory of the evidence. You should also not be overly influenced by the notes of other jurors. If you do take notes leave them in the jury room at night and do not discuss their contents until I send you to decide your verdicts at the end of the trial. Although the court reporter is making stenographic notes of everything that is said, you will not have a typewritten copy of the testimony to use during your discussions. Exhibits admitted into evidence, though, will be available to you at that time. You may not discuss the evidence in this case with each other until you have gone to the jury room to make your decision at the end of the trial. It is important that you wait until all the evidence is presented and you have again heard my instructions before you discuss the case with each other. In other words, keep an open mind and form no opinions until you can consider all the evidence and the instructions together. During the trial, you will receive all the evidence you legally may consider to decide the case. Gathering any information on your own that you think might be helpful is against the law and violates your oath. Do not do any outside reading on this case, even in dictionaries or a bible, do not attempt to visit any places mentioned in the case, and do not in any other way try to learn 11 about the case outside the courtroom. Part of my job is to protect you from outside influences. Your job is to limit your decisions to what happens in this courtroom. I wish I did not have to spend so much time on this topic, but recent events around the United States and recent technologies require me to point out that some common practices and habits many of you enjoy are strictly forbidden for you as jurors. You may not, under any circumstances, have your cell phones, blackberries, smart phones or the like on when court is in session. Whether you are here or away from the court during recess you may not Google, tweet, text message, blog, post or anything else with those gadgets about anything to do with this case. If anyone does, it could cause a mistrial, meaning all of our efforts would have been wasted and we would have to start all over again with a new trial before a new jury. If you were to cause a mistrial by violating these orders, you could have to pay all the costs of this trial and perhaps be punished for contempt of court. What you may do is advise anyone who needs to know, such as family members, employers, employees, schools, teachers, or daycare providers that you are a juror in a case and the judge has ordered you not to discuss it until you have reached a verdict and been discharged from the case. At that point you will be free to discuss this case or search for any information about it to your heart’s delight. Fairness to all concerned means that all of us connected with this case must deal with the same information and with nothing other than the same information. Your decision in this case must be made solely on the evidence presented at the trial. 12 INSTRUCTION NO. 1.2 DUTY TO FOLLOW INSTRUCTIONS In judging the facts of the case as jurors, it is your sworn duty to follow the law as I explain it to you. You may not ignore or give special attention to any one instruction or question the wisdom or correctness of any rule I tell you about. You must not substitute or follow your own idea or opinion as to what the law is or should be. It is your duty to apply the law as I explain it to you, regardless of the result. In your discussions you must make sure no one else on the jury ignores the instructions or attempts to decide the case on anything other than the law that is given to you by me and the evidence that has been presented in this trial. You must remember that we are all committed to equal justice under the law. Matters of race, religious belief, color, nationality, gender, and sexual orientation have no place in this process. To the best of your ability you are to judge others as you would want others to judge you under the law I give you. The very heart of justice is that all apply the same law to the same evidence and leave our personal desires out of it. You should not read these instructions or anything else I may have said or done as any suggestion as to what your verdicts should be. That is completely up to you. It is also your duty to base your verdicts only on the evidence, without prejudice or sympathy. That is the promise you make and the oath you take. 13 INSTRUCTION NO. 1.3 PRESUMPTION OF INNOCENCE—BURDEN OF PROOF—REASONABLE DOUBT The Indictment against [Defendant’s Name] is not evidence of guilt. The defendant is presumed by the law to be innocent. The law does not require [Defendant’s Name] to prove his innocence or present any evidence at all. As to each count, the Government has the burden of proving he is guilty beyond a reasonable doubt, and if it does not, you must find [Defendant’s Name] not guilty. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. It is only required that the Government’s proof remove any reasonable doubt of the defendant’s guilt. A reasonable doubt is a doubt based on reason and common sense after careful and unbiased consideration of all the evidence in the case. It is a doubt based on the evidence and not on a hunch, a guess, or a whim. If, based on your consideration of the evidence, you are firmly convinced that [Defendant’s Name] is guilty of the crime charged, you should find him guilty. If on the other hand, you think there is a real possibility that the Government did not prove his guilt, you must give him the benefit of the doubt and find him not guilty. 14 INSTRUCTION NO. 1.4 EVIDENCE—DEFINED You must make your decision based only on the evidence that you see and hear here in court. Do not let rumors, guesses, or anything else that you may have seen or heard outside of court influence your decision in any way. The evidence in this case includes only what the witnesses said while they were testifying under oath, the exhibits that I allow into evidence, anything the defendant and the Government agree to, and the facts that I judicially notice. Judicial notice is when I accept into evidence well- known facts such as time, date and place, or legal matters like existing Government regulations. Judicial notice may not happen in this trial. Nothing else is evidence. The lawyers’ statements and arguments are not evidence. Their questions and objections are not evidence. My rulings are not evidence. And my comments and questions are not evidence. During the trial, I may not let you hear the answers to some of the questions that the lawyers ask. I may also rule that you cannot see some of the exhibits that the lawyers want you to see. And sometimes I may order you to ignore things that you saw or heard. I may strike things from the record, which means you cannot consider that piece of evidence. Do not even think about it. Do not guess what a witness might have said or what an exhibit might have shown. These things are not evidence, and you are bound by your oath not to let them influence your decision in any way. 15 INSTRUCTION NO. 1.5 EVIDENCE—DIRECT AND CIRCUMSTANTIAL—INFERENCES Generally speaking, there are two types of evidence. One is direct evidence, such as the testimony of an eyewitness. The other is indirect or circumstantial evidence, that is, a chain of facts which point to the existence or non-existence of other facts. The law makes no distinction between direct and circumstantial evidence. The law requires that you find the facts in accord with all the evidence in the case, both direct and circumstantial. An inference is a conclusion that reason and common sense may lead you to make based on facts which have been proved. While you must consider only the evidence in this case, you can make reasonable inferences from the testimony and exhibits, inferences you think are justified by common experience. By permitting such reasonable inferences, you may reach conclusions that reason and common sense lead you to from the facts which have been proved by the testimony and evidence in this case. 16 INSTRUCTION NO. 1.6 CREDIBILITY OF WITNESSES It is your job to decide whether the Government has proved [Defendant’s Name]’s guilt beyond a reasonable doubt. In doing so, you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true. You are the only judges of the credibility or “believability” of each witness and the weight to be given to the witness’s testimony. An important part of your job will be making judgments about the testimony of the witnesses who testify in this case. This includes the testimony of the defendant, if he chooses to testify. You should think about the testimony of each witness you hear and decide whether you believe all or any part of what each witness has to say and how important that testimony is. In making that decision, I suggest that you ask yourself a few questions: Did the witness seem to be honest? Did the witness have any reason not to tell the truth? Did the witness have a personal interest in the outcome of this case? Did the witness have any relationship with either the Government or the defense? Did the witness seem to have a good memory? Did the witness clearly see or hear the things about which he or she testified? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness’s testimony differ from the testimony of other witnesses? When weighing the conflicting testimony, you should consider whether the conflict has to do with a significant fact or with an unimportant detail. And you should keep in mind that an innocent failure to remember is not uncommon. If the defendant testifies, his testimony should be weighed and his credibility evaluated in the same way as that of any other witness. 17 In reaching a conclusion on a particular point or a verdict in this case, do not make any decisions simply because there were more witnesses on one side than on the other. 18 INSTRUCTION NO. 1.7 IMPEACHMENT BY PRIOR INCONSISTENCIES You may hear the testimony of witnesses who, before this trial, made statements that are different from their testimony here in court. These earlier statements will be brought to your attention only to help you decide on the credibility of these witnesses. You cannot use the earlier statements as proof of anything else. You can only use them as one way of evaluating the witnesses’ testimony here in court. 19 INSTRUCTION NO. 1.8 DEFENDANT’S CHOICE ON TESTIFYING The defendant, [Defendant’s Name], has the right to testify or not testify and this is a basic right the law respects and protects. If the defendant chooses not to testify, you cannot consider his decision as evidence of guilt. The Constitution of the United States grants to a defendant the right to remain silent and that right is strongly protected. That means the right not to testify, so you cannot use the fact that a defendant does not take the witness stand and testify or call any witnesses as proof that he is guilty. The burden is always on the Government to prove beyond a reasonable doubt each and every significant part of each and every charge, and that burden never shifts to the defendant. If the defendant chooses to testify, you must judge him using the same standards of credibility as you do any other witness. If the defendant chooses not to testify, you may not hold that against him in any way. 20 INSTRUCTION NO. 1.9 ACCOMPLICE TESTIMONY An accomplice is someone who joined with another person in committing a crime, willingly and with the same purpose. The Government will likely call as one of its witnesses an alleged accomplice and member of the conspiracy, [Accomplice’s Name]. The Government has entered into a plea agreement with him, agreeing to fewer charges against him and asking for a lesser sentence. Plea bargaining is lawful, and the rules of this court specifically allow it. An alleged accomplice and member of the conspiracy, including one who has entered into a plea agreement with the Government, can still testify. The testimony of an alleged accomplice and member of the conspiracy may even by itself support a guilty verdict. You should listen to this type of testimony with caution and weigh it with great care. You should never convict a defendant based on the unsupported testimony of an alleged accomplice, unless you believe that testimony beyond a reasonable doubt. The fact that an accomplice has entered a guilty plea is not evidence of the guilt of any other person. 21 INSTRUCTION NO. 1.10 INFORMANT TESTIMONY An informant is someone who provides evidence against someone else for a personal reason or advantage. Just as with an accomplice, the testimony of an informant alone may by itself support a guilty verdict. This is true even if it is not supported by other evidence, but only if you believe it beyond a reasonable doubt. You must weigh an informant’s testimony with greater care than the testimony of an ordinary witness. You must decide whether the informant’s testimony has been affected by his or her self-interest, by an agreement he or she has with the Government, by his or her own interest in the outcome of the case, or by prejudice against the defendant. 22 INSTRUCTION NO. 1.11 EXPERT WITNESS TESTIMONY Scientific, technical, or other specialized knowledge may assist you in understanding the evidence or in finding a fact to be true or not true. A witness who has special knowledge, skill, experience, training, or education, may testify and state his or her opinion based on that background. You do not have to accept expert opinions. You should consider opinion testimony just as you consider other testimony in this trial. Give opinion testimony as much weight as you think it deserves, considering the education and experience of the witness, the reasons given for the opinion, and other evidence in the trial. 23 INSTRUCTION NO. 1.12 JURY’S RECOLLECTION CONTROLS If any reference by me or by the lawyers to testimony or exhibits does not match your memory of that evidence, it is your memory that should control during your discussions with the other jurors and not my statements or statements of the lawyers. You are the only judges of the evidence in this case. 24 [SECTION 2.0: INSTRUCTIONS FOR USE DURING TRIAL (e.g., LIMITING INSTRUCTIONS)] INSTRUCTION NO. 2.0 CHARTS AND SUMMARIES Charts or summaries that are not received in evidence are known as demonstratives, while charts or summaries that are received in evidence are exhibits. The only purpose of a demonstrative chart or summary is to help explain the evidence in the case. The demonstrative is not evidence itself and does not prove any fact. Some charts or summaries, however, are evidence because they accurately and reliably summarize complex or voluminous evidence in a manner that may assist you in understanding that evidence. Such a summary or chart exhibit is only as valid and reliable as the underlying evidence it summarizes and is not independent evidence on its subject matter. 25 [SECTION 3.0: SUBSTANTIVE INSTRUCTIONS] INSTRUCTION NO. 3.0 INTRODUCTION TO THE CHARGED CRIMES [Defendant’s Name] has been charged in the indictment with [three counts] of alleged crimes. Each count charges a separate crime, so you should consider each count, and the evidence related to it, separately. The fact that you may find [Defendant’s Name] guilty or not guilty of one of the counts should not control your verdict for any other crime charged. In order for the Government to prove that [Defendant’s Name] committed the alleged crimes, it must prove the elements of each crime beyond a reasonable doubt. I will now tell you what those elements are for each count. 26 INSTRUCTION NO. 3.1 [COUNT 1: CONSPIRACY TO COMMIT BANK ROBBERY (2014)] [[Defendant’s Name] is charged in Count 1 with violating 18 United States Code, Section 371. This law makes it a crime for a person to conspire with another person or persons to break the laws of the United States, which includes bank robbery of a federally insured institution. To find [Defendant’s Name] guilty of the crime alleged in Count 1, you must be convinced that the Government has proved each of the following elements beyond a reasonable doubt: First: Between in or about April 2014 and on or about June 18, 2014, [Defendant’s Name] agreed with at least one other person to commit Bank Robbery; Second: At least one member of the conspiracy engaged in at least one overt act furthering the conspiracy’s purpose; Third: [Defendant’s Name] knew that the purpose of the conspiracy was to rob a bank through the use of force and violence or by intimidation; Fourth: [Defendant’s Name] knowingly and voluntarily participated in the conspiracy; Fifth: There was interdependence among the members of the conspiracy; that is the members, in some way, intended to act together to help carry out a common, illegal goal. Conspiracy—Agreement A conspiracy is an agreement between two or more persons to carry out an illegal purpose. It is a kind of ‘‘partnership in crime’’ in which each member is the agent or partner of every other member. Once a person is a member of a conspiracy, he is legally responsible for the other members’ actions carrying out the conspiracy, even if he was not there or did not know what the other members were doing. An agreement to break the law can be inferred by the way the parties act and the facts of the case. Likewise, you may infer that an accused person is a 27 knowing and voluntary member of a conspiracy when he or she acts to help the conspiracy’s purpose. But the fact people may have known each other, may have acted similarly, and/or may have gotten together and talked about common goals and interests does not alone prove that there is a conspiracy. The evidence in the case does not have to show that the members entered into any stated or formal agreement. And it is not necessary that the evidence show that the members stated to each other what their purpose was or any details, or how the purpose was going to be carried out. In order to prove that there was a conspiracy, the evidence must show beyond a reasonable doubt that the members in some way, or through some plan, stated or unstated, came to an understanding with each other to try to carry out an illegal plan they all had. Overt Acts The Government must prove that at least one member of the conspiracy carried out at least one overt act. An overt act is an act done to help the conspiracy. The overt act itself does not have to be illegal. A legal act may be an overt act of a conspiracy if it was done to help the conspiracy. The Government does not have to prove that each member of the conspiracy personally did one overt act. The Government only has to prove that at least one of the members of the conspiracy, including members of the conspiracy whom the Government has not charged with crimes, did at least one overt act to help the conspiracy. Membership in Conspiracy If you conclude the Government proved beyond a reasonable doubt that there was a conspiracy, then you have to decide whether [Defendant’s Name] was a member of that conspiracy, meaning that he took part in the conspiracy with knowledge of its illegal purpose and to help its illegal purpose. You cannot base whether [Defendant’s Name] was a member of 28 the conspiracy on the acts or statements of other members of the conspiracy. You can only consider [Defendant’s Name]’s acts and statements. He cannot be tied to the acts or statements of other members until the Government has proved that a conspiracy existed and that he was one of its members. The fact that [Defendant’s Name] knew members of the conspiracy or spent time with them is not enough. However, you may decide there was a conspiracy from [Defendant’s Name]’s actions and other indirect evidence showing that the members worked together. Interdependence To be a member of the conspiracy, [Defendant’s Name] did not have to know all of the other members or all of the details of the conspiracy. He also did not have to know exactly how their goal was going to be carried out. Each member of the conspiracy could perform separate and different acts. For [Defendant’s Name] to be a member of the conspiracy, however, the Government must prove beyond a reasonable doubt that he was aware of the common purpose of the conspiracy and willingly took part in order to help that purpose. In other words, while [Defendant’s Name] did not have to be part of all the acts or statements by the other members of the conspiracy, the acts or statements must be interdependent so that each member of the conspiracy depends upon the acts and statements of the other members of the conspiracy to make the conspiracy succeed. Extent of Participation How big of a role [Defendant’s Name] played in the conspiracy is not relevant to whether he is guilty or not guilty. A person may be convicted as member of the conspiracy even though he plays a minor part in the conspiracy. Unanimity of Theory Verdicts must be unanimous, meaning that each and every one of you agrees on each and 29 every verdict. Count 1 of the indictment accuses [Defendant’s Name] and [Coconspirator’s Name] of committing several overt acts to help the conspiracy. Based on the Second element above, the Government does not have to prove all of these different acts for you to return a guilty verdict on Count 1. In order to return a guilty verdict, all twelve of you must agree that at least one of the members of the conspiracy committed at least one of the acts listed AND must agree which specific act of the listed acts [Defendant’s Name] and/or the other members of the conspiracy committed.] 30 INSTRUCTION NO. 3.2 [COUNT 2: ARMED BANK ROBBERY] [[Defendant’s Name] is charged in Count 2 with a violation of 18 United States Code, Section 2113[a] and [d] and Section 2. This law makes it a crime for a person to rob a bank insured by the federal Government through the use of force and violence or intimidation and the use of a dangerous weapon that puts the lives of bank employees or others in jeopardy or to have aided and abetted another person to do so. To find [Defendant’s Name] guilty of Armed Bank Robbery, you must be convinced that the Government has proved each of the following elements beyond a reasonable doubt: First: On or about June 17, 2014, [Defendant’s Name] did knowingly, by the use of force and violence, or by intimidation; Second: Take from the person or presence of another; Third: Money belonging to or in the care, custody control, management or possession of Wells Fargo Bank; Fourth: The monies and deposits of Wells Fargo Bank were then insured by the Federal Deposit Insurance Corporation; Fifth: During the commission of the above acts, the lives of Wells Fargo Bank employees or others were put in jeopardy by the bank robber[s] by the use of a dangerous weapon; or, [Defendant’s Name] did aid and abet another person who the Government proved had committed Armed Bank Robbery based on the five elements above. The term “dangerous weapon” means [1] an object that could cause death or serious bodily injury; or [2] an object that could not cause death or serious bodily injury but [a] is a lot 31 like such an object; or [b] was used in a way that made it seem like it was such an object. If you are convinced that the Government has proved all of these elements beyond a reasonable doubt, you should find [Defendant’s Name] guilty of Armed Bank Robbery. If you have a reasonable doubt about any of these elements, then you must find him not guilty.] 32 INSTRUCTION NO. 3.3 [LESSER INCLUDED CRIME—BANK ROBBERY] [If you all agree that [Defendant’s Name] is not guilty of Armed Bank Robbery, or if after all reasonable efforts, you cannot agree on a verdict for that crime, then you must decide whether he is guilty or not guilty of Bank Robbery. The difference between these two crimes is that, to convict a person of Bank Robbery, the Government does not have to prove the Fifth element noted in Instruction No. 3.2—that the lives of Wells Fargo Bank employees or others were put in jeopardy by the use of a dangerous weapon by the bank robber[s]. This Fifth element is an element of the Armed Bank Robbery but not an element of Bank Robbery. For you to find [Defendant’s Name] guilty of Bank Robbery, the Government must prove each of the following elements beyond a reasonable doubt: First: On or about June 17, 2014, [Defendant’s Name] did knowingly, by the use of force and violence, or by intimidation; Second: Take from the person or presence of another; Third: Money belonging to or in the care, custody, control, management or possession of Wells Fargo Bank; Fourth: The monies and deposits of Wells Fargo Bank were then insured by the Federal Deposit Insurance Corporation; or, [Defendant’s Name] did aid and abet another person who the Government proved committed Bank Robbery based on the four elements above. 33 If you are convinced that the Government has proved all of these elements beyond a reasonable doubt, you should find [Defendant’s Name] guilty of Bank Robbery. If you have a reasonable doubt about any of these elements, then you must find him not guilty.] 34 INSTRUCTION NO. 3.4 [COUNT 3: CONSPIRACY TO COMMIT BANK ROBBERY (2015)] [[Defendant’s Name] is charged in Count 3 with a violation of 18 United States Code, Section 371. This law makes it a crime for a person to conspire with another person or persons to commit a crime against the laws of the United States, in this case Bank Robbery. To find [Defendant’s Name] guilty of the crime alleged in Count 3, you must be convinced that the Government has proved each of the following elements beyond a reasonable doubt: First: Between in or about February 2015 and on or about March 18, 2015, [Defendant’s Name] agreed with another person to commit a bank robbery; Second: At least one member of the conspiracy engaged in at least one overt act furthering the conspiracy’s purpose; Third: [Defendant’s Name] knew the essential purpose of the conspiracy, to rob a bank through the use of force and violence or by intimidation; Fourth: [Defendant’s Name] knowingly and voluntarily participated in the conspiracy; Fifth: There was interdependence among the members of the conspiracy; that is the members, in some way, intended to act together to help carry out a common, illegal goal. It is not necessary that a bank robbery occurred in order to find [Defendant’s Name] guilty of conspiracy to commit bank robbery. The definitions and legal concepts relating to conspiracy described in Instruction No. 3.1 also apply to the conspiracy alleged in Count 3.] 35 INSTRUCTION NO. 3.5 [AIDING AND ABETTING—ACCOMPLICE LIABILITY] [If you decide that [Defendant’s Name] did not personally commit Armed Bank Robbery as described in Instruction No. 3.4 or the lesser crime of Bank Robbery as described in Instruction No. 3.5, he may still be legally responsible for those crimes as an accomplice, known as aiding and abetting. If an accused person aids, abets, counsels, commands, induces or procures another person to commit a crime, then the law holds that person equally responsible for the acts of other individuals just as though the accused person committed the acts himself. Participation in the crime may be proven by indirect evidence and the level of participation by the accused person may be minimal. In order to be found guilty as an “aider and abettor”, the Government must prove: First: Someone other than [Defendant’s Name] committed the charged crime; Second: [Defendant’s Name] associated himself with the crime; Third: [Defendant’s Name] participated in the crime as in something that he wished to have happen; and Fourth: that he tried through his actions to make the crime successful. To be guilty of aiding and abetting, [Defendant’s Name] does not have to do the criminal act, be present when it is done, or know about the details of how it was committed. But, [Defendant’s Name] having a general feeling that an illegal act may occur or that a crime is happening is not enough for him to be guilty. Similarly, just being at the scene of a crime and knowing that a crime is being committed are also not enough to find him guilty of aiding and abetting.] 36 INSTRUCTION NO. 3.6 ON OR ABOUT [Defendant’s Name] is charged with having committed the crimes “on or about” or “in or about” a certain date. This means that the Government must prove beyond a reasonable doubt that the crimes were committed reasonably near the dates charged. 37 INSTRUCTION NO. 3.7 “KNOWING”—DEFINED The term “knowing,” as used in these instructions to describe the alleged state of mind of [Defendant’s Name], means that he was conscious and aware of his actions, realized what he was doing or what was happening around him, and his actions were not due to ignorance, mistake, or accident. 38 INSTRUCTION NO. 3.8 PROOF OF KNOWLEDGE OR INTENT The intent of a person or the knowledge that a person has at any given time may not usually be proved directly because there is no way of directly seeing the workings of the human mind. In deciding the issue of what a person knew or what a person intended at a particular time, you may consider any statements made or acts done by that person and all other evidence which may help you in deciding that person’s knowledge or intent. You may infer, but do not have to infer, that a person intends for the natural and probable consequences of any acts he knowingly does. It is entirely up to you, however, to decide what facts to find from the evidence received during this trial. 39 INSTRUCTION NO. 3.9 CAUTION—CONSIDER ONLY THE CRIME CHARGED You are here to decide whether the Government has proved beyond a reasonable doubt that [Defendant’s Name] is guilty of each of the crimes with which he is charged. He is not on trial for any act, conduct, or crime that is not listed as a count in the indictment. It is not up to you to decide whether anyone who is not on trial in this case should also be charged with crimes. The fact that another person also may be guilty is not a defense to a crime. You should not think about the possible guilt of others as you decide whether the Government has proved [Defendant’s Name] guilt. 40 INSTRUCTION NO. 3.10 CAUTION—PUNISHMENT If you find [Defendant’s Name] guilty on one or more of the counts in the Indictment, it will be my duty to decide what his punishment will be. You should not talk or think about the possible punishment in any way while deciding your verdicts. 41 INSTRUCTION NO. 3.11 MULTIPLE COUNTS A separate crime is charged against [Defendant’s Name] in each count of the Indictment. You must separately consider the evidence against him on each count and return a separate verdict. Your verdict for any count, whether it is guilty or not guilty, should not influence your verdict for any other counts. 42 [SECTION 4.0: FINAL INSTRUCTIONS] INSTRUCTION NO. 4.0 JURY—PROCEDURES After the Government and the defendant have made their closing arguments and I have read you the final instructions, you will be taken to the jury room so you can make your decisions. You will have a copy of the instructions and verdicts form, and any exhibits I allowed will also be in the jury room for you to review. When you go to the jury room, you must choose one of you to serve as your Presiding Juror. He or she will direct your discussions and speak for you here in court. You will then talk about the case with your fellow jurors to try to reach agreement. You all must completely agree on each verdict, whether it is guilty or not guilty. Each of you must decide the case for yourself, but only after you have considered all of the evidence, discussed it with the other jurors, and listened to the views of the other jurors. I suggest how you might want to do this in Instruction No. 4.1 “Jury—Deliberations.” One thing you should do in your discussions is to follow these jury instructions and the verdicts form. Not only will you be more productive if you understand the legal standards, but for a verdict to be valid, you must follow the instructions during your discussions. Remember, you are judges of the facts, but you have to obey your oath to follow the law stated in these instructions. Your talks will be secret. You will never have to explain your verdicts to anyone. Once again, if you have questions during your discussions, the Presiding Juror should write the message down and give it to the Court Security Officer. I will reply in writing or bring you back into the court to respond to your message. You should never reveal to me, the Court Security Officer, or anyone else not on the jury, where you stand or what your vote might be until 43 after you have reached your verdicts or I have let you go. To assist you, we have given you a verdicts form. The Presiding Juror will mark the answer agreed to by each and every juror in the spaces on the verdicts form. Then, the Presiding Juror should date and sign the verdicts form, and the rest of you should sign the form. When you are done, the Presiding Juror should tell the Court Security Officer who is outside the jury room that you have reached your verdicts. 44 INSTRUCTION NO. 4.1 JURY—DELIBERATIONS After you have elected your Presiding Juror as Instruction No. 4.0 tells you to, you can move forward as you agree you should. I am not telling you how to proceed, but I make the following suggestions that other juries have found useful. They should help you move forward in an orderly way with each juror fully taking part so that you can arrive at verdicts that are agreeable to each of you. First, it is the responsibility of the Presiding Juror to encourage good communication and participation by all jurors and to maintain fairness and order. Your Presiding Juror should be able to make your discussions useful even when jurors cannot agree. Second, the Presiding Juror should let each of you speak and listen before stating his or her own views. Third, the Presiding Juror should not try to promote or permit anyone else to promote his or her personal opinions by pressuring, intimidating, or bullying others. Fourth, the Presiding Juror should make certain that the discussions are not rushed to reach a conclusion. If the Presiding Juror you select does not meet these standards, he or she should willingly step down or should be replaced by a majority vote. After you select a Presiding Juror you should think about choosing a secretary to tally the votes, to help keep track of who has or hasn’t spoken on each issue, to make sure everyone is there during the discussions, and to otherwise help the Presiding Juror. Some juries are tempted to start by voting on the case right away to “see where we stand.” It is better, however, not to vote until you have had a full discussion on the issue, 45 otherwise you might lock yourself into a certain view before thinking about the other and possibly more reasonable interpretations of the evidence. Experience has also shown that such early votes often cause disruptive, inefficient debate and ineffective decision-making. Instead, I suggest the Presiding Juror begin your discussions by getting you to create informal rules for how you will proceed. These rules should assure that you will focus on, analyze, and evaluate the evidence fairly and efficiently and that the views of each of you will be heard and considered before any decisions are made. No one should be ignored. You may agree to discuss the case in the order of the questions in the verdicts form or in chronological order or based on the testimony of each witness. Whatever order you choose, it is advisable to be consistent and not jump from one topic to another. To move the process along in the event you reach a controversial issue, it is wise to pass it temporarily and move on to less controversial ones and then come back to it. You should then continue through each issue in the order you have agreed upon unless a majority of you agrees to change the order. It is very helpful, for all votes to be taken by secret ballot. This will help you focus on the issues and not be overly influenced by others. Each of you should also consider any disagreement you have with another juror or jurors as an opportunity to improve your decision. You should treat each other with respect. Any differences in your views should be discussed calmly and, if a break is needed for that purpose, it should be taken. As I mentioned at the beginning of this trial, each of you is responsible for making sure that no juror bases a decision on matters that are not evidence. Each of you should listen carefully and openly to one another before making any judgment. This is sometimes called “active listening” and it means that you should not listen 46 with only one ear while thinking about a response. Only after you have heard and understood what the other person is saying should you think about a response. Obviously, this means that, unlike TV talk shows, you should try very hard not to interrupt. If one of your members is going on and on, it is the Presiding Juror who should suggest that the point has been made and it is time to hear from someone else. You each have a right to your own opinion, but you should be open to others. When you focus your attention and best listening skills, others will feel respected and, even while they may disagree, they will respect you. It helps if you are open to the possibility that you might be wrong or at least that you might change your mind about some issues after listening to other views. Not understanding each other can hurt your efforts. Ask for clarification if you do not understand or if you think others are not talking about the same thing. From time to time the Presiding Juror should set out the items on which you agree and those on which you have not yet agreed. Even with all your efforts, it is still possible that there may be serious disagreements. If that happens, realize and accept that “getting stuck” is often part of the decision-making process. It is easy to fall into the trap of believing that there is something wrong with someone who is not ready to move on. Thinking that way is not helpful. It can lead to focusing on personalities rather than the issues. It is best to be patient with one another. At such times, moving slower actually ends up being faster. There is a tendency to set deadlines and try to force decisions. Taking a break or more time, however, often helps to shorten the overall process. Every once in a while, it is a good idea for you all to express your respect for each other and to repeat your commitment to work through any differences. Then, you will most likely decide verdicts that leave each of you satisfied that you have achieved justice. 47

=== Judging Credibility ===

Judging Credibility Whom do I believe—and why? of credibility is supposed to be based by John L. Kane There is no law on judging credibility. Judges and jurors receive guidelines and elementary observations in the form of stock instructions but are essentially free to decide for themselves. Because the entire trial process rests on persuasion,determining credibility is more than evaluating testimony.Although it is customary to speak of the credibility of witnesses and the persuasiveness of counsel,both deal with the same thing:the degree of belief we attach to what we see and hear. A few brave souls have attempted to parse the elements of credibility,but this essential function is left largely to the mysteries of intuition. Although demeanor evidence can mislead,it is considered a reliable basis for finding credibility. Does the witness hesitate or stammer or show fear in answering questions? Reliance on demeanor vests wide discretion in the fact-finder. As Judge Jerome Frank,no slouch when it came to pushing the judicial envelope,observed,the methods of evaluating oral testimony “do not lend themselves to formulations in terms of rules and are thus,inescapably,‘unruly.’” In earliest common law,the jurors themselves were the only witnesses,testifying on the basis of their knowledge of the events and what was reported to them. The jury trial in this country was justified by the assertion that jurors were from the same locale and already knew the witnesses and their reputations for character and veracity. By a curious transformation,today’s jurors are selected on the basis of their lack of familiarity with the dramatis personae,and a judge’s personal knowledge of the litigants can create an appearance of impropriety requiring recusal. In the modern trial,the determination The Honorable John L. Kane is senior district judge for the federal district of Colorado in Denver. solely on what takes place in the courtroom by fact-finders who have little or no knowledge of the parties,the witnesses, or the events. In effect it is a process of studied ignorance. This stress on courtroom demeanor results in an entirely subjective evaluation. Witnesses are observable on the stand and for only a very short time. For most of them,testifying is an unusual experience,and they can be expected to be on edge. Judges and juries know little about what makes one person stammer or hesitate. There certainly is not time to delve into the subconscious of each witness. Perhaps the examining attorney’s bright-red tie reminds the witness of her funny uncle or the bailiffs bald head triggers repressed emotions of the teacher who failed her in algebra. Will she stammer or hesitate while she gets her thoughts in order? In a recent jury trial,a lawyer conducting voir dire attempted to establish rapport with a juror. When she related that she had been born and raised in Kansas,he said that he, too,had lived there. After the trial the juror confided to me that her childhood had been miserable and whenever that attorney spoke he reminded her of her unhappy experiences. We are left to wonder just how persuasive his closing argument could have been. If a fleeting observation of a witness’s demeanor is equally unrevealing,on what can the fact-finder rely? The nostrum that a person telling the truth has nothing to fear and therefore no reason to stammer or LITIGATION Spring 200731Volume 33 Number 3 hesitate is based on the myth that being subjected to charges of perjury for falsely testifying under oath is sufficient to exact truthfulness from anyone. If the oath actually had that effect,why would we need to probe and question? Not only are prosecutions for perjury rare,but the oath’s archaic language and the ritualistic tone and breakneck speed with which it is usually administered suggest that its meaning and import are seldom comprehended beyond the level of hearing a cashier say “Have a nice day!” Ever since social Darwinism replaced old-time religion, the oath has not meant much. The individual belief that false testimony results in eternal damnation never did affect the honestly—but erroneously—perceived recollection,nor would a rejection of such a belief necessarily give the non- conformist the psychological freedom to lie. This is particularly so when a witness is recounting his intent or explaining the reasonableness of his actions. Time heals all wounds,and many an honest person comes to believe verily in post hoc rationalizations. If the oath is ineffectual,what saving grace can we expect from jury instructions? The standard credibility instruction tells the fact-finder to consider the witness’s strength of memory,ability in the described circumstances to see and hear,and the clarity with which he is able to recall events. Tone of voice,shades of expression,and gestures are also to be considered. Motive and interest are said to create bias. The natural and acquired experience that an observant person uses to form an opinion of whether to trust the veracity of someone in the important transactions of his own life is said to be the most important qualification of all. Jurors do not need to be reminded to take their role seriously and to apply their own common sense. That is not to say,however,that sitting as a juror does not have a sobering effect. Many jurors have told me in post-verdict conversations that sitting on a jury was indeed one of the most important experiences in their lives. They have described the experience as transforming. One said,“I can never again think about what people say or do without recognizing I have an obligation to pay close attention before forming an opinion.But is paying attention enough? The formalized rubrics of folk wisdom for judging credibility are of little,if any,value. What natural and acquired shrewdness is involved? There are no criteria for determining such skills in either judicial or jury selection,nor is the judge of credibility possessed of any greater awareness of unconscious influences than the witness who is subject to them. The lack of rules (un-ruliness) in determining credibility with the concomitant wide discretion vested in the fact-finder presents inherent difficulties so insurmountable that appellate courts throw up their hands and say that questions about the credibility of witnesses are not reviewable except in extreme circumstances. Trial seminars are filled with tips on interpreting nonverbal cues. People constantly send all kinds of unarticulated messages, but interpreting them is at best the product of intuition or rank speculation and at worst, unmitigated legerdemainia. We are told, for example, that a witness or potential juror is reacting negatively to the questioner by folding her arms across her chest—and an individual who frowns and squints is assumed to be angry or hostile. But is it not equally plausible that a witness or juror with a dour expression is making an extra effort to focus and concentrate on the questions? “I squint and frown, a juror in a patent case once told me, for the same reason I chew pencils when I’m doing a crossword puzzle. I’m thinking, tuning everything else out.All those clenched teeth, frowns, and squints may give some people headaches, but it does not necessarily mean they are rejecting a point or are hostile to the examiner. If instructions have little effect and folk wisdom is unreliable, can cross-examination save the day? We are taught to give great weight to cross-examination, but the commentators of yesterday were unaware of what the excessive reliance upon depositions has done to the lawyer’s “greatest weapon.We may still see effective cross-examination in criminal cases where depositions are rarely permitted, but in more than one civil case, lawyers have told me they cannot cross-examine because the witness was never deposed. Today’s cross-examination usually consists of a tedious reiteration of the testimony on direct, with evocations of prior inconsistent statements. Most such statements are trivial and seldom lead to an admission that the present testimony is false. The usual exchange goes something like this: Q: You said the light was red when your deposition was taken two years ago, and now you say it was yellow. Was your memory better then, or is it better now? A: At the time my deposition was taken I thought it was red, but I’ve thought more about it since then, and now I’m sure it was yellow. So much for impeachment by prior inconsistent statements. Trial and appellate courts are sometimes distinguished on the basis that the primary function of the former is to determine facts and of the latter, to define the law. In a casual sense, this distinction is helpful. Facts, however, are meaningless unless some value is incorporated into them. The inevitable metaphor for deciding such values is weighing. When we weigh facts, we are determining what values they carry with them. What is it about specific contentions that leads us to believe they are true? And if we cannot rely on the LITIGATION Spring 200732Volume 33 Number 3 witness produce his college diploma before the cross Pull quote Pull quote Pull quote Pull quote. oath, cross-examination, the witness’s demeanor, or unruly instructions, how is credibility established and determined? Here is a thematic process that I find useful, though certainly not definitive. Two underlying principles govern: not prejudging credibility, and ruthlessly examining your own prejudices. From this flows a principle of universal application regarding the nature of deception. First, leave the conclusion on credibility uncharted and find it later rather than work forward from it. Making conclusions as the events happen is like building a house of cards and watching the entire edifice tumble when a joker is added to the roof. It is not simply a matter of keeping an open mind until all of the evidence is in, as we instruct juries to do; it is then and only then that the process should begin. While the testimony takes place, listen carefully, paying attention to the slightest nuance or dissonance. A former partner of mine defended a man in the trashhauling business in a tax evasion case. The defendant’s CPA had rolled and testified for the government that the defendant was fully advised of all tax consequences but gave the CPA false information. Cross-examination was to begin shortly before noon, and my partner demanded that over the recess the LITIGATION Spring 200733Volume 33 Number 3 began. Something in his testimony did not sound right. The judge was irritated because he thought counsel was stalling, but he took an early adjournment and ordered the witness to produce the requested diploma. It turned out to be a clumsy forgery. The witness never had a degree and was never certified as a public accountant. What was the dissonant note? He had testified on direct that he received a B.A. in accounting from the University of Denver. Having graduated from D.U. himself,my partner remembered that its business school awarded B.S. degrees. The judge was thunderstruck. More importantly,so was the jury. Second,impartiality is essential to reaching a just conclusion,whether ruling on an objection,deciding on the merits, or determining credibility. Achieving impartiality is,however,easier said than done. It is not a matter of wishing it so or declaring yourself to be impartial. In fact,it is not a process leading to an objective state of mind. Rather,it is intensely subjective. It requires you to dredge the subconscious for your own prejudices and predilections. To deny that you have prejudices is illusory; to recognize them is an act of relentless searching. Only when the prejudice is recognized can it be removed from the decisional process. Years ago I drew a sex discrimination case that greatly disturbed me. I did not know either of the parties,and there was nothing unusual about the cause of action,yet I was inexplicably hypercritical when reviewing the defendant’s pleadings and briefs. In probing my reaction,I remembered that my mother had worked as a bookkeeper for a railroad. Shortly after World War II her employer told her that she could not receive a raise,though she deserved it,because to do so would mean she would be paid as much as the men in the office doing the same work. The case before me was at a different time with different parties under different law,but if I had not questioned my personal discomfort,my credibility findings would have been skewed. When I preside over a matter that makes me angry or uneasy,I ask myself,What is it about this matter that is disturbing me? And why am I upset? Similar inquiries enable jurors to put what may be troubling them on the table,in effect defanging the snake. Then and only then can the factfinder reconstruct the dispute or issue in relation to general principles of universal application. This internal process is similar to how prejudicial questions or uninvited responses in jury trials are dealt with,such as a witness blurting out that the plaintiffs father was a jailbird and like father,like son. We instruct the jury to disregard the statement rather than declare a mistrial. In my view that admonition is not enough. You cannot unring a bell. But a detailed explanation not only defuses the prejudice,it also furthers the jury’s understanding of its proper function. The court should go on to explain:“That statement is clearly out of bounds. I am not saying you must forget it,because that would be impossible. Instead,I am saying you must consciously disregard it and see to it that your fellow jurors likewise disregard it. To illustrate disregarding,if you are to add three plus two plus one,you will arrive at six,but if you have to disregard one, you cannot conclude that six is the answer. Subhead When jurors are properly instructed, the fact that they are composed of six or more individuals prevents even the most determined from articulating prejudices in justifying their votes or opinions. Peer pressure may LITIGATION Spring 200734Volume 33 Number 3 dissuade jurors from expressing the prejudice, but appropriate instruction and that same peer pressure impels jurors to expect and demand that fellow jurors state reasons for their votes during deliberations. Doubtless there was a time when jurors shared the same communal biases, but cultural diversity and civic anonymity suggest that a consensus must be reached through expression. to indoctrinate Skilled trial lawyers do not waste voir dire by slyly attempting jurors and obtain commitments. That just creates resistance. Rather, they get the jurors comfortable enough to think about their prejudices, to nonthreatening questions, and only then to agree to set them aside so that a decision can be based on agreed values. The instructions of law and the emotional bonding jurors experience through the trial and recesses pro to articulate response them in disbelieve based entirely on the character of the speaker,who may be mistaken,or on the understanding of his character, which may be wrong. Credibility therefore demands an eval uation of the substance of the communication. That requires a process for discovering what people can be persuaded to believe. The first essential is to cut through the clutter of fal lacies. A good advocate avoids bringing clutter to the fact finder’s task because the rejection of fallacies is cumulative. If the advocate persists,she will eventually be ignored entirely.There is only so much guff even the most tolerant adjudicator can endure,and no one,not even the judge or juror,can determine what that quantum will be on any given subject at any particular time. When is enough,enough? in argument or testimony,illogical and vacuous assertions undermine credibility. Consider the following examples of fallacious argument techniques: Whether vide that basis. If you put in the trash heap where they belong the shibboleths that people of Northern European extraction favor the prosecution,Southern Europeans are good for the defense,and poor people hate corporations— plus generalities such as schoolteachers follow directions and salesmen believe anything—it is still possible to recog nize several principles of universal application. The first is that the witness who speaks truthfully •Ad hominem. Incivility,gratuitous insults,and sarcasm are distracting and counterproductive,and substituting an may say what is false in fact and the witness who ntends to falsify may inadvertently speak the truth. Eyewitness testimony is notoriously unreliable. The witness may honestly believe the person he identifies s his assailant and yet be mistaken. In a gang-related case,a witness may fear repercussions and deny an dentification he honestly believes to be true yet is not. The second principle is that lying is not necessarily speak ing falsely; it is speaking what you do not believe. Deception is withholding what you think or believe in in or a false order misunderstanding by the listener. to create a impression That is the essence of a Ponzi scheme. attack on the person for one on the substance generates a The third principle is that it is not possible to believe LITIGATION Spring 200735Volume 33 Number 3 or negative reaction unlikely to achieve persuasion. Many studies show that when a witness is attacked,the fact finder identifies with the prey and not the predator. •Rhetorical manipulations. John Locke described referring to famous persons as a kind of authority,and bootstrap ping one’s own opinion with the conclusion that anyone who disagrees is insolent or immodest. Dr. Johnson defined appeals to loyalty and patriotism as the last refuge of the scoundrel. A related concept is the classic ignoratio clenchi,to argue for one thing as if it proved another and confuse apparently similar conclusions. We find this in products liability and pharmaceutical patent cases where one party attempts to conflate the results of tests on lab rats with the cause of disease or infection in humans. •Irrelevancies. Introducing factors that have nothing to do with the desired result suggests confusion and renders the statements easily dismissable. This is similar to the incon sistent and generally self-defeating argument “It didn’t happen,but if it did,it was completely justified.Using unnecessary adverbs is also counterproductive. Many briefs state “Defendants vehemently object. . . .Is the judge then to vociferously sustain the objection rather than passively overrule it? •Appeals to force,status,or position. These make the lis tener resentful and inclined to accept the opposite of what is being said. Counsel should avoid telling a judge that she will be committing reversible error. It is far more persua sive to advise that the appellate court has charted a clear path and let the judge draw her own conclusion. •Appeals to popularity. “Everybody does it”is usually a good reason not to do it. Judges and jurors are selected for an official task,they are told they are special,and they accept that status—so what everyone else does is hardly persuasive. Adhering to the duties of the office of judge or juror rather than the ululations of the crowd is what being official is about. •Linguistic vacuity. Fads are superficial practices or inter ests that people follow with exaggerated zeal for a limited time. Fads in behavior and values are just as shallow as fads in clothing and hairstyles. In today’s linguistic fads, absolutely does not mean something is absolute,totally does not mean something is total,and excellent does not mean something excels. Their use invites the listener to believe that the speaker cannot think clearly. A witness who frequently answers absolutely instead of yes to questions on direct begs to be creamed on cross. •Evasion. If the lawyer or witness does not answer the question but volunteers something else,it is easy to believe he does not know the answer.The lawyer asks, “Did your company keep the customer lists in any sort of restricted file?”The witness responds,“He had no business taking that list when he resigned.What inference can be drawn? Either that no security measures were taken or the witness does not know whether any were in place. If a judge asks a lawyer,What does Delaware law say about the responsibility of directors for conducting a stockholders meeting?”and counsel answers,“In Iowa there is no such duty,the lawyer’s ability to persuade has evaporated. On the other hand,a candid reply—“I don’t know,but I will find out”—enhances the lawyer’s credi- bility. •Ambiguity. This is created by using the same word with LITIGATION Spring 200736Volume 33 Number 3 Pull quote Pull quote Pull quote Pull quote. different meanings in the same context. For example: “The contract specifies evergreen trees,and the trees provided were obtained from Evergreen Nurseries.In one sense or the other,they are evergreen trees,but which one? If the fact-finder has to stop to wonder,not just that point is lost but likely the next three as well,and the trust that is so essential to persuasion may be lost entirely. •Equivocation. By equivocating,you avoid committing yourself. What does one make of the agnostic who prays to God,if there is one,to save his soul,if he has one,from Hell,if there is such a place? The speaker’s failure to commit leaves the listener with no basis for caring about the answer. Having eliminated the clutter,we next note that credibility determinations are made under conditions of uncertainty. This leads to what I call the principle of consonance:A statement must sound as if makes sense and be capable of being easily understood. Most often,a lack of credibility is found when a statement is inconsistent with an awareness of the social knowledge of people; the conditions required for living together; or shared values,interests,and aspirations. These commonsense ingredients are shaped into what we accept as true and,therefore,what we regard as credible. This sense of consonance,or harmony with the world as we know it,is what makes us believe a statement is right. Let me give two examples. In a recent trial,the manager of a construction project was testifying as the principal damage witness. He testified from books,diary entries,and daily logs. In introductory statements,he said that he had a masters degree in economics from a prestigious institution. On cross-examination,he was confronted with a record from that institution showing he had attended but failed to graduate. In sum,he lied on his resume. Nevertheless,the jury returned a verdict precisely according to the facts and figures in his testimony.After the jury was discharged,I asked one of the jurors what weight they gave to his false statement. The reply was,“Lots of people fudge on their resumes. It doesn’t mean much,and after all these years from when he went to school,we felt he probably believed his own bs. But the records and journals were consistent with everything else we heard. It made sense his company should get paid. I have also seen an expert medical witness destroyed when he falsely claimed membership in an honorary organization. Those jurors felt he could not be trusted even though his testimony fell well within the parameters of his specialty. What is the difference between these two cases? Because the first concerned facts that were supported by extrinsic evidence, trust was not an essential factor. In the second,the jury was asked to believe the witness because of who he was. His opinion depended upon his character,and he revealed a serious flaw. Bias and prejudice also tend to be ironclad criteria for evaluating credibility. I expect a mother to be highly motivated to protect and support her child. I recognize such an interest can shade her testimony,but that alone will not make it incredible. Likewise,I expect a defendant in a medical malpractice action to testify he did everything called for in the relevant protocol. In such circumstances,I look for corroboration. There may be no requirement for it,but the burden of persuasion will rarely be met without it. And speaking of persuasion, what role does argument play in assessing credibility? Is argu- mentation the same as argumentativeness? The legal philosopher John Rawls asserted that we judge specific cases in terms of general principles,but we also judge general principles in terms of specific cases. If a question relates to a fundamental principle or value,there are multiple ways in which it can be answered. Because I must choose between otherwise acceptable alternatives,I therefore can be persuaded to pick one or another. This dilemma is frequently expressed by saying that reasonable minds can differ—which is when the arguments of counsel become crucial. The question is not,as is frequently argued,which position is right and which is wrong,but which is the better reasoned. Subhead Argument is giving reasons, not quarrelling, and judging is the process of selecting the best reason from those that are available. Bickering is a distraction that tends to make me ignore both counsel and search for the best reason on my own. In a sense, the clients are then appearing pro se. The bottom line is that the fact-finder needs a compelling reason to believe which of the available reasons is the best answer, and woe to the lawyer who absents himself from that process. If the compelling reason comes from an advocate or a witness or an expert report, so much the better. If not, the fact-finder still must find it. This search for credibility explains why poorly presented cases take more time to be decided. I have taken cases under advisement for otherwise inexcusably long periods just so I could make that search and arrive at a gestalt. When,for example,two companies are at swords’points over a deal gone bad and each executive testifies about the same crucial phone conversation to his respective advantage, the credibility finding must be made on evidence extraneous to the conversation. If counsel fails to LITIGATION Spring 200737Volume 33 Number 3 supply sound reasons to be weighed,I will find it necessary to let the matter cool “under advisement”—sleep on it. This allows me to give more careful thought to the entire body of evidence pre- sented. A decision without that surcease is bound to be arbitrary. Aside from hoping the judge sleeps on it,how do skilled trial lawyers guard against the risk of arbitrariness? They elevate credibility to an art by drawing on narrative and musical theory.What do the arts have to do with credibility? Everything. If all trial courts did was find facts,the function itself would be senseless. We make sense out of facts by applying values to them. Clearly we cannot determine a fact credible if it cannot be related to a value. In this regard laws are for Pull quote Pull quote Pull quote Pull quote. malized values. More fundamentally, human beings continually engage in the search for meaning. That is the fact-finder’s implicit charge. In the search for meaning,we refract what we learn through the lens of our own lives. Take storytelling as an example. Because we instinctively frame our experience of the world by using stories,the search for meaning (i.e.,credibility) is greatly facilitated by the use of narrative technique. Both historically and analytically,storytelling has its origins in music,one of the most complex of human activities. Narrative and musical structure form the basis for determining credibility at its deepest level because they are tools for structuring our understanding in terms of our experience and values. Like music,the act of storytelling involves perception, memory,timing,grouping,and harmony. Logic is the precursor to believing,not a substitute for it. To be believed,a story must resonate in any key. If a fact or opinion jars a sense of harmony,if it distracts,if it simply does not fit,no matter how superficially logical it may seem,it will not ring true. Skillful application of narrative technique thus requires consideration of the role of order,context,and coherence and leads to a concept of expanded relevance. logic. It relates to theme and progression as well,and in this regard musical theory is particularly instructive. Consider Beethoven’s Fifth Symphony,with its recurring theme of three short notes followed by a longer one:da da da daah. More than any other musical composition,the Fifth exemplifies thematic unification. The theme recurs in almost every bar of the first movement and is then developed and modified in the other movements. By the end of the sym- phony,the phrase da da da daah has been explored in all aspects, and the listener is infused with a sense of unity confirmed by the triumphal coda. Similarly, in any argument or trial, a theme must be presented at the opening and then developed in various perspectives that echo and resound throughout the facts so that the listener perceives it as a unifying principle. All of those facts and arguments that produce the unification are, ipso facto, believed. What the fact-finder has come to believe is then confirmed by the closing argument. That is what con- verts advocacy from a craft to an art. Art is what we most deeply believe. It transcends logic and expression. If facts are presented in an understandable order and constructed to make application of the legal value readily apparent, the fact-finder will have confidence in the conclusion. The order of presentation makes some facts more acceptable than others. Chronological order is the usual way to convey a narrative to highlight cause and effect, but factors other than beginning, middle, and end must be considered in making the story understandable. As in music, the order can be thematic. In other cases, the gist may be character: Who is the story about? True character, like grace, is revealed by how an individual acts under pressure. In some cases the best organizing principle is to establish those pressures first. It is surprising how infrequently the fact-finder is told the order or purpose of the evidence. The order the fact-finder imposes on the facts determines the weight and relevance the evidence will receive. That is another reason to wait until all the evidence is in before determining what to believe. It is also why a closing argument that fails to put it all together is a failed argument. Nor should the fact-finder have to ask why certain evidence is being offered. The advocate must fill in the blanks What is the conflict between the parties? What stood in the way of their best intentions? Was it the failure of one party or was it events outside her control? It is customary to think of relevance as anything A skillful narrative also places critical events in tending to support a thesis,antithesis,or synthesis or,as the Federal Rules of Evidence say,anything “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.But relevance is not exclusively a matter of context. Context is more than merely time and place; it is the entire framework, including psychological factors, within which the parties and witnesses acted and crucial decisions were made. Context gives meaning and thus credibility to actions and events. It supplies the critical ingredient of why. Context also LITIGATION Spring 200738Volume 33 Number 3 determines relevance. The lawyer’s job is to make what may not appear to be immediately relevant readily comprehensible within the framework of the larger case. In addition to order and context, credibility depends on a sense of completeness, coherence, and an expanded concept of relevance that appeals to notions of internal consistency, common sense, and experience. Present what a naturally curious mind would want to learn. Completeness produces acceptance of the constituent parts. Coherence largely depends on the logic with which the parts are presented, so that the connection between each is obvious. If indeed there is completeness, the result can be paradoxical or ironic and still be convincing. If, on the other hand, the judge or jury is left waiting for the other shoe to drop, what is left unsaid will not be appreciated. norms convinces no one. I once observed a criminal trial at London’s Old Bailey. The defendant,a former employee,was charged with robbing the payroll and killing the paymaster in the process. After presenting evidence of the corpus delicti,the crown introduced a teacup found in the paymaster’s office bearing the defendant’s fingerprints,and rested without further explanation. The judge peered over the bench and nearly shouted, “What about the bloody teacup?”In England,judges evi- dently take a more active role in the prosecution than here. Finally,internal coherence is critical in evaluating credi- bility. When the actions of the persons involved are shown to be in accordance with their nature or characters,when they do the kinds of things people will do (consistent with probability or necessity),credibility is enhanced. A causally unconnected string of actions and behavior not shown to be motivated by psychological The concept of relevance is thus expanded to more than the legal or factual issues in the case. In a specific context a question may seem irrelevant,but the fact-finder is simultaneously concerned with the order,context,and coherence of the larger narrative. In a tort case a lawyer may be directing examination to the question of proximate cause,to which the objection is made that the solicited answer is irrelevant to that issue. It may well be relevant,however,to the strength of the witness’s memory or the characteristic behavior of the plaintiff. Attention to narrative technique goes far beyond the credibility of constituent elements and may have unexpected rewards. Indeed,a powerful narrative can salvage an otherwise flawed case. In my court a group of franchisees recently moved for a preliminary injunction after the franchisor invoked its contractually unfettered discretion to terminate their franchises in LITIGATION Spring 200739Volume 33 Number 3

=== Riding Jury Instructions to Victory ===

Riding Jury Instructions to Victory by John L. Kane As trials become increasingly drawn out and complex, a fre- quent refrain is that juries are incapable of deciding multi-issue cases because the inexorable advances of science and tech- nology make them far too sophisticated for men and women of ordinary experience and education to understand. Former Chief Justice Warren Burger jumped on that bandwagon say- ing, “Even Jefferson would be appalled at the prospect of a dozen of his stout yeomen and artisans trying to cope with some of today’s complex litigation.” Jurors are not incompe- tent. The failure of comprehension lies with us, the lawyers and judges. It is not the responsibility of jurors to divine mean- ing by stirring the entrails of the legal monstrosities we create. With strategically timed and sufficient instructions coupled with common-sense innovations, a jury can justly decide any case. Brooke Group, Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993) poignantly illustrates our errors. During a trial that involved the Robinson-Patman Act (15 U.S.C. § 13) and lasted more than seven months, the judge did not instruct before or during the testimony. At the close of the evidence, without providing copies of the instructions to jurors to fol- low along, he began reading in the morning and did not finish until mid-afternoon. Eighty-one pages of transcript contained such prose as this: “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of supply and demand between the product itself and the substitutes for it.” Reversing the verdict for the plaintiff, the Supreme Court unabashedly opined, “A reasonable jury is presumed to know and understand the law, the facts of the case, and the realities of the market.” The foreman was a 25-year-old assistant super- visor at a furniture factory; other jurors were housewives and a The Honorable John L. Kane is a senior judge for the United States District Court for the District of Colorado in Denver. rural postmaster. None was a student of economics. In a post- trial interview, one juror remarked, “I never did understand what the term ‘market power’ meant and the judge refused to let me see a dictionary.” Lest we think Brown & Williamson an aberration, consider Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the showcase prosecution in Enron Corporation’s spectacu- lar collapse. Arthur Andersen LLP, Enron’s auditor, had advised its employees to destroy documents pursuant to its document retention policy. Indicted for obstruction of justice, Arthur Andersen was convicted, effectively dealing a death blow to one of the most prestigious accounting firms in his- tory. Chief Justice William Rehnquist reversed, holding that the jury instructions failed to convey properly the elements of a “corrup[t] persuas[ion]” conviction. It was not wrongful to instruct employees to comply with a valid document retention policy under ordinary circumstances, but the government’s insistence and the trial judge’s acquiescence in an instruction that changed the statutory definition of “corruptly” by exclud- ing “dishonestly” and adding “impede” to the phrase “subvert or undermine” was reversible error. Thus, the Supreme Court held, the instruction was fatally flawed because it permit- ted anyone who even innocently persuaded another to with- hold information from the government to be convicted. The instructions also failed to require the jury to find any nexus between the “persua[sion]” to destroy documents and any par- ticular proceeding or investigation. News media at the time reported that a deadlock was pre- vented when the holdout decided that one e-mail from an in-house lawyer at Andersen obstructed justice by suggest- ing a memo be changed. If such was the case—that a lone juror avoided deadlock by fastening on a single tangential fact in a monumental prosecution with counterintuitive instruc- tions—could the jury really be blamed? No matter. A Big Five accounting firm that once employed 28,000 people was Litigation Winter 2010 28 Volume 36 Number 2 already been run and the nits of discovery picked. Once the instructions are settled, the bases for in limine motions are sig- nificantly reduced. All instructions will be tailored to the case, with so-called pattern ones merely the beginning and not the final product. How will these vital tools be honed? First, a review of plain English. Though it is not in attorneys’ nature to do so, I urge them to use the parties’ proper names instead of the generic “plaintiff” and “defendant,” and to write “before” instead of “prior to” and “after” instead of “subsequent” and never, ever to use “where- upon” and “hereinafter” unless they promise to wear spats and pince-nez throughout the trial. Surplusage confuses rather than clarifies the application of the law. When quoting a statute, all parts extraneous to the case at bar must be redacted. Why should an entire statute on affirmative defenses in a product liability case be quoted when only one is at issue? In cases with multiple claims, the attorneys often submit more than a hundred pages of proposed instructions, and I call them in for an additional con- ference. I am usually able to reduce the number of instructions tendered by 20 percent. I have yet to see a pattern jury instruction that does not require at least some modification. Most template instructions were not written with the jury in mind. Many were not written for oral presentation. A few are incomprehensible, and some are so com- plicated they need to be parsed and presented in constituent parts. They were drafted to satisfy the gimlet-eyed review of the appel- late courts. For litigants with the resources, mock or shadow jury trials are sometimes held. Well-heeled clients also pay for jury consultants. Their advice assumes jurors will decide matters on the basis of prejudices and predilections rather than on what they learn from the presentation of evidence and the law. What does a mock jury decide when the instructions and verdict forms, if any, are not the same as those used in the actual trial? It is much less expensive and more effective to give three or four non-lawyers the proposed instructions and ask for their questions and comments. In settling the final instructions, I have been favorably persuaded by lawyers doing just that and advising me of the lay reactions. After I complete this edit, I send the instructions back to coun- sel for review. I think it is extremely unwise for lead counsel to delegate the responsibility for the instructions to the most junior lawyer on the team. I enjoy working with young lawyers, but most have never tried a case and their insecurity leads them to speak in a language the stranger knows not of. Moreover, lead counsel’s mastery of the case tends to be in direct proportion to the hands-on drafting of the instructions. I remind them of three points: First, courts of appeals do not engage in word-by-word hair- splitting when reviewing jury instructions. The trial judge is given wide discretion as to style and wording, and abuse of discretion is the standard of review. When determining whether the charge is sufficient—that is, whether the instructions, taken as a whole, fairly and adequately apprise the jurors of their obligations, the issues to be decided, and the applicable law—the standard of review is de novo. Thus, the reviewing court will look at the instructions as a whole, even if only a portion of one is assigned as error. Instructions are not weapons in the adversary’s arsenal, and as Arthur Andersen demonstrates, lawyers incur a substantial risk of losing on appeal if they ask for too much and the trial judge accedes to their demands. Second, the reviewing court will reverse and order a new trial only if the instructions failed to state the applicable law adequately or were highly confusing so as to create substantial doubt that the jury was correctly guided and the litigant was thereby prejudiced. The harmless error doctrine applies to review of jury instruc- tions, and reversal is mandated only if prejudice is established on a review of the record as a whole. If, however, the charge is balanced, comprehensive, and clear so as to avoid confusion or misdirection, it is sufficient even though some principles of law may have been omitted. Within those wide parameters, trial law- yers and judges remain free to make many mistakes and obtain aberrant results. Third, argumentative, one-sided instructions are useless. Whether based on a case or a statute, the test is how does the instruction most normally read? Adjectives and adverbs gener- ate ambiguity. Avoid legalisms and other forms of arcane usage. Plain, easily understood declarative sentences are the objective. To be most persuasive, a proposed instruction should append explanatory comments; string cites are only somewhat better than useless. At the final trial preparation conference, we review this set of instructions and make necessary changes, and the attorneys can make a record of whatever objections they maintain. The final set of instructions is indexed and cross-referenced with the special verdict forms for easy access during opening statements, closing arguments, and jury deliberations. With this detailed and careful drafting, I have noticed an increase in settlements. Once the parties see the precise questions the jury will answer and the law that will be given to them, it is easier for them to reach an understanding and strike a better deal than the court and jury can provide. Eight years ago, I consulted a mediator and a psychologist to help me craft an advisory instruction to guide the deliberative process. It is common sense that 12 people who have never met should receive guidance or suggestions on how to communicate Having the instructions ready changes the structure of the trial itself. with one another and reach mutually acceptable conclusions. Other judges have used an abbreviated version of my instruc- tion, which begins along these lines: You are advised to proceed in an agreed-upon order. For example, the case can be discussed in the order of the questions presented in the special verdict form, in chrono- logical order of facts, or according to the sequence of the witnesses, but it is inadvisable to jump from one order to another. I recommend first selecting, either by election or consensus, a foreman and a secretary to assist in counting votes and making certain that all jurors are present when- ever the case is discussed. The foreman is admonished to permit all other jurors to speak before expressing his or her own opinions. I suggest refraining from voting until the particular issue has been fully discussed. To avoid being influenced by personalities rather than issues, it is best to proceed by secret ballot. The advisory instruction goes on to discuss “active lis- tening,” meaning one should not listen with one ear while Litigation Winter 2010 30 Volume 36 Number 2 say something along the lines of, “Okay, but if you are going to shoot the king, you had best be sure to kill him.” Instructions that are complete and available at the start of the trial give the lawyers an excellent foundation for their opening statements. The jurors have already heard the instructions and have them in hand. They can look at them while the lawyer is talking about them, using two learning channels rather than one. Moreover, the judge has just read them and invested each juror with a personal copy so the lawyer is referring to rec- ognized authority that enhances the gravitas of the litigant’s theme. (If a lawyer doesn’t have a clearly articulated theme or storyline, she shouldn’t be in court.) Instructions bespeak the judge’s authority. That is not a bad horse to saddle and ride to a successful verdict. I repeat instructions during the course of the trial. When an expert is called, I direct the jurors to open their instruc- tions notebooks to the page on expert witnesses. This gives me the opportunity to review with them the different kinds of testimony, and why they are hearing so much about this particular witness’s background and qualifications when they had not heard that sort of testimony with regard to percipient witnesses. The jurors are informed in context about what they are to look for in the testimony, and about credibility and bur- dens of proof. Just as the judge can use instructions in this manner, a law- yer is free to request that an instruction or series be read at any point during the presentation of evidence. When the examiner is switching from a substantive issue to the topic of damages, reading the instructions on damages signals the jury that the focus of the examination is changing and makes it easier for them to follow. The jury becomes more engaged in the process, and having the instructions repeated in the context of testimony enhances their recognition of the issues and gives clarity to the Substantive instructions tell the jury what must be proved. points counsel are making. Especially in complex, lengthy tri- als, this repetition increases their understanding of the facts. In essence, when a lawyer asks that an instruction or two be read during her examination, she is saying to the jury, “Here, work with me; this is what we are doing.” If a trial is longer than two weeks, on Friday afternoons I schedule summary statements to enable the lawyers to tell the jury what they have seen and heard and what to expect in the following week. It is tempting for lawyers to convert these summaries into “mini-closings” rather than use them as an opportunity to develop trust so that the jury will rely on them when the closing arguments are made. I spend time explain- ing why this conversion is ill-advised and warn the attorneys that I will be instructing the jury as to the summaries’ intended purpose. In the face of such an explanation and instruction, the lawyer loses credibility if she persists in arguing rather than informing. Nevertheless, there is sufficient rope to tie the case down or to hang oneself. Once the evidence comes to a close, that terrible time when the jury is eager to deliberate and yet must wait, sometimes hours or even days, while the judge and counsel repair to chambers is reduced to a bare minimum. I have conducted hundreds of post-verdict interviews with jurors to see what I can do to make the experience better and more purposeful for them. Most of the innovations I employ are based on these interviews. The criticism most often voiced by jurors was with delays and unexplained recesses. The delay between the time when both parties rest and the time when closing arguments and instructions are given was the most criticized of all. With the instructions and special verdict forms in hand, a closing argument is already organized. What questions does the jury have to answer? The jurors are looking right at them. Why should they answer this question in your client’s favor? Look at each instruction. Who was credible? Look at the instruction on credibility and tell the jury who was credible and why, according to the criteria in the instruction. As with the opening statements, this accesses two learning channels instead of one. The substantive instructions tell the jury what must be proved. The lawyer’s closing explains how it has or has not been proved. Follow the instructions through to the most persuasive conclusion you can make; lawyers can let the instructions speak for them and on their behalf. After all the arguments are made, the judge will read the entire instruc- tions one last time, and one can rest assured that the jurors now believe these are their instructions, their marching orders, their key to understanding the case. The instructions have given them the confidence needed to make a decision. I do not know how many other judges engage in these inno- vations, but surely even one who does not would welcome a prepared set of instructions before trial. I have talked with a few, and their interest seems more than merely polite. Judges and lawyers are averse to change. By the very nature of our craft, we look to precedent, to what has been done and stood the test of time. The problem with that kind of caution is that the world around us is in constant and rapidly increas- ing change. For example, technology has affected the way we think and changed our vocabulary forever. We now must admonish jurors not to twitter. Because of recent horror stories about mistrials being declared when jurors have accessed the Internet during trial, I have added the following admonition to my opening instruction: I wish I didn’t have to dwell on this topic, but recent events around the country and new developments in technology compel me to point out that some common practices many of you enjoy are strictly forbidden in your role as jurors. You may not, under any circumstances, have your cell phones, BlackBerries, iPhones, or the like on when court is in session. Moreover, whether you are here or away from the court during recesses and over- night, you may not “google, twitter, tweet, text message, blog, post” or anything else with those gadgets about or concerning anything to do with this case. The point of it all is to confine your judgment to what takes place in the courtroom. It would be extremely unfair to base your decision on matters that neither side has examined and tested. That is what due process is all about. Disobeying this instruction could cause a mistrial, meaning all of our efforts would have been wasted and we would have to start all over again with a new trial before a new jury. If you were to cause a mistrial by violating this order, you could be required to pay all the costs of these proceedings and perhaps even be punished for contempt of court. Litigation Winter 2010 32 Volume 36 Number 2 What you may do is advise anyone who needs to know, such as family members, employers, employees, schools, teachers, or daycare providers, that you are a juror in a case and the judge has ordered you not to discuss it until you have reached a verdict and been discharged. At that point you will be free to discuss this case or investigate anything about it to your heart’s content. When you reach the point in this trial when you deliber- ate, you must see to it that no one else on the jury ignores these instructions or attempts to decide the case on any- thing other than the law as I give it to you and the facts you and your fellow jurors find from the evidence given here in court. Fundamental fairness requires that we all play from the same deck of cards. It is always to be borne in mind that our collective commitment is to equal justice under law. Matters or concerns about race, creed, color, national origin, and gender have no place in this process. To the best of your ability you are to judge others as you would want others to judge you under the law I give you. The very heart of justice is that all of us apply the same law and the same spirit of fairness to the same evidence and leave our personal desires and personal information out of it. Is starting the case with instructions and preparing them in advance worth the effort? The jury trial is a vanishing arti- fact of our culture. Fewer than two percent of cases are tried to verdict. Most cases settle, a very few are dismissed, and summary judgment is entered more often than judgments on verdicts. But if one drafts a complaint or answer or counter- claim based on substantive instructions the judge has already used in an earlier case, the number of successful motions an opponent can file is significantly reduced. One of the most persuasive statements a busy trial judge can read is this: “The language objected to is the exact language used in this court’s prior cases.” Preparing pleadings in the language of jury instructions and having the instructions at hand also reduces discovery dis- putes. The magistrate judge can see immediately why the dis- covery sought can lead to relevant evidence or, for that matter, why it never will. So, too, when demands or rejections are couched in succinct terms devoid of quibbling and obfusca- tion and designed to be understood by laymen, the prospect of successful negotiation is greatly enhanced. If the opposing party can readily understand your position, rather than requir- ing translation from her attorney, the probability of success is even more enhanced. It is one thing to advise an opposing party what your view of the law is; it is quite another to hand over an approved instruction and say, “This is how this court looks at this issue.” When the time comes to customize the instructions you are tendering to the court, foremost in your mind should be that your objective is to win at trial by communicating with the jury. You are not writing to communicate with the appel- late courts. You want to win at trial and avoid being reversed. Although I sometimes wonder, it is a fact that far more cases are affirmed than reversed on appeal. The bottom line is to write to someone who has never before thought about what you are trying to communicate because that is exactly what you are doing. Lawyers have a difficult time drafting instruc- tions because they have never been taught how to do so and want to tilt them in their favor as if they were briefs. Striving for objectivity and fairness somehow seems counterintuitive, but—if you want a judge to use your instruction—that is pre- cisely what you must do. If you want all your efforts to be for naught, take another look at Arthur Andersen. In today’s trial culture, the use of plain English is an inno- vation. So, too, is the repetitive use of instructions prepared well before trial and the increased participation of jurors in the process. Letting jurors know what is going on and explaining to them why there are things they know or have heard that they may not take into consideration is a calculated effort to have the trial process conform to the behavior and expectations that jurors have in their everyday lives, and to make the courtroom more familiar and considerably less foreboding to them. The rule of law exists only when people of ordinary educa- tion and experience can understand it. Juries apply the law by consensus, when it accords with accepted standards of fair- ness. Instructions are the tools by which they conform facts and law to those standards. That endeavor is not the sole prov- ince of highly trained sophisticates. It is well within the mas- tery of 12 men and women in a jury box. Litigation Winter 2010 33 Volume 36 Number 2

=== DISSENT from D.C.Colo.LR 72.2 on Consent Jurisdiction of a Magistrate Judge ===

IN THE UNITED STATED DISTRICT COURT FOR THE DISTRICT OF COLORADO IN THE MATTER OF LOCAL RULES OF PRACTICE DISTRICT OF COLORADO Rules Effective Dec. 1, 2011 Kane, Senior Judge, DISSENTING from the amendments to the Local Rules of Practice effective December 1, 2011. Prompted by the latest change to D.C.COLO.LCiv.R 72.2 and deeply concerned by the relentless delegation of this court’s constitutional duties to non-Article III judges, I DISSENT from the adoption of D.C.COLO.LCiv.R 72.2E and from this Court’s sanctioning of 28 U.S.C. § 636(c), and “consent jurisdiction” generally, under D.C.COLO.LCiv.R 72.2. Article III of the Constitution, at Section 1, vests the Judicial Power of the United States “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” If one feature of the judiciary is essential above all others, it is that “there is no liberty, if the power of judgment be not separated from the legislative and executive powers.” Hamilton, Federalist No. 78. The structure of the Constitution is fractured by the delegation of that “power of judgment” – whether by the “consent” of Congress through the enactment of legislation or the Federal Rules of Procedure, the “consent” of a majority of a court’s judges in promulgating Local Rules of Practice, or the “consent” of individual litigants to the disposition of their Article III cases to non-Article III judges. In the name of efficiency and pragmatism, new D.C.COLO.LCiv.R 72.2E eliminates the previous requirement in this district that civil cases referred to a magistrate judge for pretrial proceedings under 28 U.S.C. § 636(b) be reassigned to a different magistrate judge upon referral by consent under § 636(c). That previous concession was wrested by those of us who objected to the adoption by this court of consent jurisdiction in the first instance, to discourage the very seamlessness of magistral adjudication the new change is designed to impel. Until now, repeated efforts to repeal this provision have been defeated. That the federal caseload has increased in complexity and in number, without a commensurate increase in the number of judges, is evident. With the Speedy Trial Act monopolizing judges’ time in criminal cases, the pressure and temptation to delegate civil actions to magistrate judges is almost overwhelming. The answer, however, is not to sacrifice a constitutional structure, or the canon of Separation of Powers, on the altar of efficiency. Compelling voices have risen in objection to the delegation of Article III authority to Article I judges as unconstitutional.1 To those voices I add my own. As United States District Judges, we are not appointed by the President with the advice and consent of the Senate to be pragmatists charged with effecting and implementing solutions to the 1 E.g. Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037, 1045 (7th Cir. 1984)(Posner, J., dissenting); Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d 537, 547 (9th Cir.) (en banc) (Schroeder, J., dissenting). 2 caseload crisis. We are not here to make magistrate judges or others feel properly or adequately utilized. We are here to perform “all [of our constitutional] duties.” 28 U.S.C. § 453. Being an Article III judge is not merely a job. It is the embodiment of an independent and structurally fundamental separate branch of government. One may consent to using the stairs to access the third floor of a building. One cannot “consent” to the building’s architecture which, having been carefully conceived, is essential to its structural integrity. Because I will not consent to an arrangement or composition of judicial authority that denigrates the fundamental structure of our constitutional form of government, I DISSENT. Dated this 28th day of November, 2011. I am authorized to state that Senior Judges Richard P. Matsch and Lewis T. Babcock CONCUR in this dissent. 3