Policies and Procedures; Scheduling Information Report; Rule 16 Scheduling Order; American College of Trial Lawyers' Code of Pretrial Conduct and Code of Trial Conduct

=== Policies and Procedures ===

The Honorable John R. Padova Senior United States District Judge Room 17613, U.S. Courthouse 601 Market Street Philadelphia, PA 19106 Phone: 215-597-1178 Fax: 215-580-2272 [email protected] Deputy: Malissa Wolenski (Case Management and Scheduling) Policies and Procedures (Revised January, 2024) Conduct of Attorneys. ......................................................................................................................1 Communications with Law Clerks...................................................................................................1 Electronic Filing System ..................................................................................................................1 Telephone Conferences ....................................................................................................................1 Correspondence with the Court .......................................................................................................1 Pro Hac Vice Admissions ................................................................................................................2 Cases on Appeal ...............................................................................................................................2 Pretrial Conferences .........................................................................................................................2 Continuances and Extensions ..........................................................................................................3 Motions Practice ..............................................................................................................................3 Discovery Matters ............................................................................................................................5 Settlement ........................................................................................................................................5 Arbitration ........................................................................................................................................6 Injunctions........................................................................................................................................6 Trial Procedures ...............................................................................................................................6 Jury Deliberations ............................................................................................................................9 Criminal Case Matters ...................................................................................................................10 CONDUCT OF ATTORNEYS Practicality, civility, and professionalism facilitate the orderly resolution of cases. All counsel are urged to read and be guided by the American College of Trial Lawyers’ Code of Pretrial Conduct and Code of Trial Conduct (as endorsed by the last three Chief Justices of the United States). Please find a copy of the Code of Pretrial and Trial Conduct published by the American College of Trial Lawyers under the “Instructions” tab of Judge Padova’s profile on the Court’s home page. COMMUNICATIONS WITH LAW CLERKS Judge Padova strongly discourages communication with his law clerks. All telephone inquiries should be directed to Judge Padova’s deputy. ELECTRONIC FILING SYSTEM Judge Padova requires that all documents be filed electronically through Electronic Case Filing (“ECF”). Unrepresented civil litigants may file documents as provided in Local Civil Rule 5.1.2.2(d). ECF provides greater efficiency and timeliness in the filing of pleadings, as well as electronic storage of documents for remote access by the Court, the bar, and the litigants. Applications are available from the Office of the Clerk of the Court, 601 Market Street, Room 2609, Philadelphia, PA 19106-1797, by calling 215-597-5711, or by accessing the Court’s website at www.paed.uscourts.gov. TELEPHONE CONFERENCES Judge Padova sometimes conducts telephone conferences for non-complex pretrial matters, scheduling, discovery disputes, settlement conferences, and other similar matters. Telephone conferences should be arranged through his deputy. Judge Padova expects counsel to bring matters to his attention only after they have been discussed with opposing counsel. All parties must be represented on any telephone conference with Judge Padova. Judge Padova prefers that most discovery disputes be heard by telephone conference. CORRESPONDENCE WITH THE COURT Judge Padova permits correspondence under the following circumstances: (1) When letters of transmittal accompany documents required to be sent to, or filed with, the Court or another official office in the Courthouse; (2) When counsel are specifically requested by the Court to communicate some information to the Court by letter; 1 (3) When there is a request for a continuance of the Preliminary Pretrial Conference (see paragraph entitled “Continuances and Extensions”); (4) When there is an uncontested request for a continuance of the Rule 16 Scheduling Order deadlines that does not affect the case’s trial date (see paragraph entitled “Continuances and Extensions”); (5) When the participation of counsel in the case is expected to be affected by a personal matter, including medical problems and vacation plans, concerning counsel, a party, a witness, or counsel’s immediate family; or (6) To advise or confirm to the Court that a case has been settled, dismissed, or otherwise finally disposed. All other communications with the Court should be made by the filing of pleadings, motions, applications, briefs, or legal memoranda. PRO HAC VICE ADMISSIONS Counsel not admitted to practice in the Eastern District of Pennsylvania must be sponsored for admission pro hac vice by a member of the bar of this Court. Judge Padova requires a written motion for admission on or before the day of the first appearance of counsel seeking admission. CASES ON APPEAL Judge Padova expects to receive copies of appellate briefs when a litigant appeals a to rendered. emailed should has be decision [email protected]. Briefs he PRETRIAL CONFERENCES Preliminary Pretrial Conference (Scheduling Conference) Judge Padova regularly schedules an initial pretrial conference within 30 days of all defendants filing answers to the complaint. At least three business days before the pretrial conference, counsel must submit to chambers a completed Scheduling Information Report. This form will be attached to the conference notice. No later than three business days prior to the scheduled pretrial conference, counsel must also submit the discovery plan adopted at the Rule 26(f) conference in accordance with the Federal Rules of Civil Procedure. It is not necessary to docket these submissions. The Court’s processes and procedures rely on counsel’s good faith compliance in all respects with Rule 26(f). The Rule 26(f) meeting shall take place as soon as possible and, in any event, at least fourteen days before the scheduling conference. Such compliance is of the highest degree 2 mandatory. Parties who do not comply will have no voice at the scheduling conference and may be subject to additional sanctions. Topics that are frequently addressed in an initial pretrial conference include those listed in Local Rule 16.1 and Federal Rule of Civil Procedure 16(b) and (c) including a plan for preservation of electronically stored information, and the progress of self-executing disclosure under Federal Rule of Civil Procedure 26(a). Judge Padova further requires that counsel taking part in all pretrial conferences be prepared to speak on the subjects to be covered, including settlement, and have authority from their clients to do so. A Rule 16 scheduling order is issued at the conclusion of the conference. Judge Padova uses a standard form of scheduling order for standard track cases, a copy of which can be found under the “Instructions” tab of Judge Padova’s profile on the Court’s home page. Counsel must be prepared to present argument at the conference on any pending motions. Final Pretrial Conference Judge Padova typically holds a final pretrial conference sometime during the week before trial is scheduled. At that time, outstanding topics that were the subject of the initial pretrial conference are typically addressed, as well as settlement, resolution of motions in limine, and trial procedure. CONTINUANCES AND EXTENSIONS Judge Padova has a general policy of adhering to originally scheduled dates unless a compelling reason is presented that justifies a change. This policy applies to briefing schedules, oral argument, evidentiary hearings, discovery deadlines and trial dates. Counsel should advise the Court immediately, and before the date has run, of any compelling reason justifying an extension or continuance of any originally scheduled date. Any request for an extension or continuance shall be made in writing by letter or formal motion for cause shown. If there is an agreement, a stipulation of counsel should be submitted; however, Court approval is required. A letter request is acceptable when there is an uncontested request for a continuance of the Rule 16 Scheduling Order deadlines not affecting the trial date or pool placement; when the continuance of a preliminary pretrial conference is sought; or when there is an uncontested request for an extension of time to respond to a motion. MOTION PRACTICE Judge Padova requires that one courtesy copy of motion papers be sent to his chambers. Courtesy copies shall be stapled or neatly bound, with dividers between the exhibits. 3 If Judge Padova determines that oral argument will aid in deciding the matter, he will order argument or grant a request by counsel to be heard. Requests should be made in writing at the time of filing a motion, response, or reply as part of the moving papers. Judge Padova does not set aside any certain days or times for oral argument on motions or evidentiary hearings. Reply and Surreply Briefs Judge Padova considers motions “ripe” when a response has been filed. Reply and surreply briefs may only be filed with leave of the Court. A motion for leave to file a reply or surreply brief must be filed within fourteen days of the previous filing, and counsel shall attach as an exhibit the proposed reply or surreply brief. Rule 15 Amended Pleadings Any party who intends to amend a pleading pursuant to Federal Rule of Civil Procedure 15 must file a notice of intent to do so within the 14-day period for responding to a motion to dismiss. See L. Civ. R. 7.1(c). Rule 56 Motions Except in matters in which a pro se prisoner is a party, the parties shall meet and confer about the material facts no later than fourteen days prior to the filing of any summary judgment motion pursuant to Federal Rule of Civil Procedure 56. The moving party’s initial filing must include a Concise Statement of Stipulated Material Facts, which sets forth (in numbered paragraphs) material facts and important background facts that the parties agree are not in dispute for purposes of Summary Judgment. When possible, the parties should include citations to the summary judgment record for each stipulated fact. To the extent that any party seeks to rely on facts not included in the Concise Statement of Stipulated Facts, it shall set forth those facts in a Concise Statement of Additional Facts. Like the Statement of Stipulated Facts, the Statement of Additional Facts shall be organized in numbered paragraphs. The party shall provide citations to the precise pages of the summary judgment record that support each factual assertion in the Statement of Additional Facts. One paper courtesy copy of all Rule 56 materials shall be submitted to the Court (Chambers). Courtesy copies shall be stapled or neatly bound, with dividers between the exhibits. Consult Local Civil Rule 5.1.2(5) for requirements for exhibits filed via ECF. The pendency of a Rule 56 Motion does not stay the deadlines contained in the Court’s Scheduling Order. Counsel must apply by letter or by motion if they wish to seek an extension to the Scheduling Order deadlines. 4 DISCOVERY MATTERS Length of Discovery Period and Extensions At the initial pretrial conference, Judge Padova will set a discovery period. Judge Padova usually allows 60 to 90 days to complete discovery from the date of the initial pretrial conference. Discovery Conferences and Dispute Resolution Judge Padova normally does not hold discovery conferences, but encourages the use of telephone conferences in lieu of motion practice to resolve discovery disputes. When a discovery default occurs, Judge Padova encourages counsel to file a motion to compel, which he will usually grant upon presentation pursuant to Local Civil Rule 26.1(g). When a discovery dispute occurs, and counsel have been unable to resolve it themselves or with Judge Padova’s assistance by telephone, he requires a motion to compel. Judge Padova expects discovery to be voluntary and cooperative in accordance with the Federal Rules of Civil Procedure and the parties’ discovery plan. Confidentiality Agreements Parties may agree privately to keep documents and information confidential. The Court may enter an Order of Confidentiality only after making a specific finding of good cause based on a particularized showing that the parties’ privacy interests outweigh the public’s right to obtain information concerning judicial proceedings. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994). Expert Witnesses Counsel are required to identify expert witnesses and provide curriculum vitae and, as to all experts, voluntarily exchange the information referred to in Federal Rule of Civil Procedure 26(a)(2)(B) by expert report, deposition, or answer to expert interrogatory in accordance with the dates outlined in the Court’s scheduling orders. Except for good cause, expert testimony will be limited at trial to the information provided. SETTLEMENT At the earliest appropriate point, Judge Padova takes an active role in settlement discussions. This point is typically during the initial pretrial conference. Judge Padova may hold an early settlement conference at which individual parties, or the principals of corporate parties, are present, and he often recommends settlement figures or alternative methods of dispute resolution. Judge Padova prefers not to participate in settlement negotiations in non-jury cases. He typically refers such cases to a Magistrate Judge for settlement. Judge Padova will occasionally refer a case to another District Court Judge for settlement. 5 ARBITRATION Certification of Damages in Excess of Arbitration Limits Parties are reminded that pursuant to Local Civil Rule 53.2.3(C), damages are presumed not to exceed the $150,000 arbitration limit unless the Party bringing a claim timely certifies otherwise. Scheduling of Trial De Novo From Arbitration Once a trial de novo is demanded, Judge Padova issues a standard form scheduling order. If counsel believe that a settlement conference would be helpful, Judge Padova is willing to meet with the parties upon their request. Ordinarily, Judge Padova does not allow additional discovery. Counsel can expect the trial to be scheduled within thirty days. INJUNCTIONS Scheduling and Expedited Discovery Judge Padova’s usual practice is to hold a conference with counsel before scheduling hearings for temporary restraining orders and preliminary and permanent injunctions. Judge Padova usually handles requests for expedited discovery by telephone conference. When a complaint is accompanied by a Motion for a Temporary Restraining Order or Preliminary Injunction, Judge Padova will contact counsel and schedule a hearing. Proposed Findings of Fact and Conclusions of Law Parties shall submit proposed findings of fact and conclusions of law in accordance with deadlines set by the Court. One courtesy copy should be sent to Chambers, as well an electronic to: [email protected]. Microsoft emailed version format Word in TRIAL PROCEDURES Scheduling Cases Cases will be assigned a date certain for commencement of trial. Cases Involving Out-of-Town Parties or Witnesses Trial scheduling does not change due to the presence of out-of-town parties or witnesses. Judge Padova leaves the scheduling of witnesses to counsel. 6 Conflicts of Counsel When counsel become aware of professional or personal conflicts that may affect the trial schedule, they should notify Judge Padova and opposing counsel immediately. Such notice may be given to Judge Padova’s deputy by telephone, but it must be confirmed in writing. Final Pretrial Memoranda The Rule 16 Scheduling Order will specify the items to be included in all pretrial memoranda and the filing dates. Notetaking by Jurors Judge Padova permits jurors to take notes and will issue an instruction on juror notetaking similar to that found in United States v. Maclean, 578 F.2d 64 (3d Cir. 1978). Voir Dire Judge Padova ordinarily asks a standard set of voir dire questions. Parties should file proposed voir dire questions by the deadline set forth in the Rule 16 Scheduling Order for the submission of proposed jury instructions. Judge Padova also requires that the parties submit an to: in Microsoft Word [email protected]. electronic emailed version format Trial Briefs Judge Padova requires the submission of one courtesy copy of trial briefs. In Limine Motions Judge Padova requires counsel to submit one courtesy copy of motions in limine in accordance with the deadlines set forth in the Rule 16 Scheduling Order. Examination of Witnesses Out of Sequence Judge Padova will permit counsel to take witnesses out of turn for the convenience of the witness, subject, of course, to objection by opposing counsel. Opening Statements and Summations Judge Padova normally attempts to obtain the agreement of counsel regarding time limits to be placed on opening statements and summations. However, Judge Padova believes that twenty to thirty minutes is usually adequate for an opening statement and thirty to forty-five minutes is usually adequate for a summation. 7 Examination of Witnesses or Argument by More Than One Attorney Judge Padova will permit more than one attorney for a party to examine different witnesses or to argue different points before the Court, but he will not permit two attorneys for a party to examine the same witness or argue the same point. Examination of Witnesses Beyond Redirect and Recross Judge Padova does not have a general policy regarding further examination of a witness after redirect or recross have been completed. Where appropriate, he will allow it, but he will not permit any repetition or rehashing. Videotaped Testimony Videotaped testimony should begin with the witness being sworn. Objections should be given to the Court well in advance of the video being offered so that the video may be appropriately edited. Objections should be accompanied by a copy of the transcript in order for the Court to issue a ruling. Reading of Material Into the Record Judge Padova has no special practice or policy of reading into the record stipulations, pleadings, or discovery material. He will permit it when necessary. Preparation of Exhibits Judge Padova requires that exhibits be pre-marked and pre-exchanged. At the commencement of trial, the parties shall provide the Court with three copies of a schedule of exhibits that shall briefly describe each exhibit. At the trial, the parties shall provide the Court with two copies of each exhibit at the time of its first use at trial. Offering Exhibits Into Evidence Judge Padova prefers that counsel offer exhibits into evidence at the close of testimony by the first witness testifying about the exhibit unless the exhibit is objected to, in which event it should not be testified to unless it is received into evidence. Motions for Judgment as a Matter of Law and Motions for Judgment on Partial Findings Judge Padova prefers that Rule 50 motions be in writing. Oral argument, if necessary, will be requested by the Court. 8 Proposed Jury Instructions and Verdict Forms As set forth in his standard form of pretrial order, Judge Padova expects counsel to work together in submitting joint proposed jury instructions on substantive issues and proposed verdict forms or special interrogatories to the jury. In addition, Judge Padova requires that counsel submit individual proposed jury instructions on substantive issues and proposed verdict forms or special interrogatories to the jury on those issues that counsel cannot agree upon in their joint submissions. In all cases, one copy of the joint and/or individual submissions should be submitted to the Court (Chambers) no later than the date provided in the Rule 16 Scheduling Order. Judge Padova also requires that the parties email jury instructions and verdict forms in Microsoft Word format to: [email protected]. Each proposed instruction should be double-spaced on a separate sheet of paper. Cited cases and pattern jury instructions should be accurately quoted and specific page references should be given. Jury instructions need only be submitted with respect to substantive issues in the case. Proposed instruction on procedural matters such as the burden of proof, unanimity, and credibility are not required. Judge Padova may accept supplemental jury instructions until the start of closing argument. Failure to timely submit proposed instruction can constitute waiver of a claim, defense, or legal position. See L. Civ. R. 16.1. Proposed Findings of Fact and Conclusions of Law Judge Padova requires that proposed findings of fact and conclusions of law in non-jury cases be submitted in accordance with the date set forth in the Rule 16 Scheduling Order. One courtesy should be sent to Chambers, as well as emailed in Microsoft Word format to: [email protected]. JURY DELIBERATIONS Written Jury Instructions Judge Padova generally does not give the jury written instructions, but may do so in appropriate cases. Exhibits in the Jury Room Upon request, Judge Padova generally permits all trial exhibits to go out to the jury unless a well-founded objection is asserted. Handling of Jury Requests to Read Back Testimony or Replay Recordings Judge Padova will advise the jury that testimony is usually not in transcript form to give them. However, if a transcript is available, he will consider reading appropriate portions requested by the jury. He will usually allow audio and video recordings to be replayed. 9 Availability of Counsel During Jury Deliberations Counsel must remain in the courthouse during jury deliberations. Taking the Verdict and Special Verdicts Whether Judge Padova takes a general or special verdict depends on the case. If useful, Judge Padova will submit interrogatories to the jury. Polling the Jury Judge Padova grants all requests to poll the jury. CRIMINAL CASE MATTERS Speedy Trial Act Continuances Motions requesting a trial continuance should be accompanied by a proposed order in Speedy Trial Act language, containing findings of fact and conclusions that would justify a continuance under the Speedy Trial Act. Sentencing Memoranda Judge Padova expects the submission of sentencing memoranda by both the Government and defendants, but notes that they must be within the framework provided by the Sentencing Guidelines in order to be useful. SENTENCING MEMORANDA SHOULD BE SUBMITTED AT LEAST ONE WEEK BEFORE THE SCHEDULED SENTENCING DATE. 10

=== Scheduling Information Report ===

SCHEDULING INFORMATION REPORT (To be completed and returned to Judge Padova’s Chambers three (3) days before the pretrial conference) Caption: Civil Action No.: Jury Trial Non-Jury Trial Arbitration Plaintiff’s Counsel: Address: Phone: Fax: Defendant’s Counsel: Address: Phone: Fax: Have you complied with the duty of self-executing disclosure under Federal Rule of Civil Procedure 26(a)? When? If not, why? Have you filed a discovery plan pursuant to Federal Rule of Civil Procedure 26(f)? When? If not, why? Discovery completed? If not, when? If you contend the discovery period should exceed four months after the last appearance by all defendants is filed, please state reasons: Ready for trial by: Date Is a settlement conference likely to be helpful? If so, when: Early (yes/no) After discovery Do you expect to file a case-dispositive motion? If so, by what date? Trial time estimate: Time to present your case: Time for entire trial: Date: Signature of counsel preparing the form Typed or printed name

=== Rule 16 Scheduling Order ===

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA vs. : : : : : CIVIL ACTION NO. FEDERAL RULE OF CIVIL PROCEDURE 16 PRETRIAL SCHEDULING ORDER STANDARD TRACK CASES AND NOW, this day of , 2024, following a preliminary pretrial conference, IT IS HEREBY ORDERED as follows: 1. All discovery shall proceed forthwith and continue in such manner as will assure that all requests for and responses to discovery will be served, noticed and completed by Click here to enter a date.. 2. On or before Click here to enter a date., counsel for each party shall serve upon counsel for every other party the information referred to in Federal Rule of Civil Procedure 26(a)(2)(B) by expert report, deposition, or answer to expert interrogatory. If the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party, counsel shall serve the information on counsel for every other party on or before Click here to enter a date.. 3. Dispositive motions shall be filed no later than Click here to enter a date.. No later than 14 days prior to the filing of any summary judgment motion pursuant to Federal Rule of Civil Procedure 56, the parties shall meet and confer about the material facts. The moving party’s initial filing must include a Concise Statement of Stipulated Material Facts, which sets forth (in numbered paragraphs) material facts and important background facts that the parties agree are not in dispute for purposes of Summary Judgment. When possible, the parties should include citations to the summary judgment record for each stipulated fact. To the extent that any party seeks to rely on facts not included in the Concise Statement of Stipulated Facts, it shall set forth those facts in a Concise Statement of Additional Facts. Like the Statement of Stipulated Facts, the Statement of Additional Facts shall be organized in numbered paragraphs. The party shall provide citations to the precise pages of the summary judgment record that support each factual assertion in the Statement of Additional Facts. 4. On or before Click here to enter a date., counsel for each party shall serve upon counsel for every other party: (a) the original or a copy of each exhibit they expect to offer at trial in furtherance of their respective contentions. Each party shall mark its trial exhibits in advance of trial with consecutive numbers appropriately prefixed with an identifying letter of counsel's choice (i.e., P-1, P-2; D-1, D-2); (b) curriculum vitae for each expert witness expected to testify; and (c) a specific identification of each discovery item expected to be offered into evidence. 5. All parties shall prepare and file with the Clerk of Court their pretrial memoranda in accordance with this Order and Local Rule of Civil Procedure 16.1, as follows: Plaintiffs - on or before Click here to enter a date.. Defendants - on or before Click here to enter a date. All motions in limine shall be filed on or before Click here to enter a date.. Responses thereto are due on or before Click here to enter a date.. In addition to compliance with Local Rule of Civil Procedure 16.1, the parties shall include the following in, or attached to, their pretrial memoranda: 2 a. a listing of the identity of each expert witness to be called at trial by the party; b. a curriculum vitae for each expert witness listed; c. a listing of each fact witness to be called at trial with a brief statement of the nature of their expected testimony (witnesses not listed may not be called by that party in its case-in-chief); d. an itemized statement of claimant's damages or other relief sought; e. a statement of any anticipated important legal issues on which the Court will be required to rule, together with counsel's single best authority on each such issue. One copy (1) of the pretrial memoranda shall be filed with the Clerk of the Court and two (2) copies shall be sent to the Court (Chambers). 6. A final pretrial conference for this matter will be held on Click here to enter a date., at a.m. in chambers (Room 17613). 7. (a) If a jury trial is scheduled, the parties shall file in writing with the Clerk of Court one (1) copy of joint proposed jury instructions on substantive issues and proposed verdict forms or special interrogatories to the jury. The parties shall also file one (1) copy of proposed jury instructions, verdict forms, or special interrogatories on those issues not agreed upon by the parties in their joint submission. These filings shall be made on or before Click here to enter a date.. Jury instructions shall be submitted each on a separate sheet of paper, double spaced, with accurate quotes from and citations to cases and pattern jury instructions where appropriate. A courtesy copy of these filings shall be submitted to chambers in hard copy, and emailed in Microsoft Word format to [email protected]. (b) If a non-jury trial is scheduled, the parties shall file one (1) copy of proposed findings of fact and conclusions of law with the Clerk of the Court on or before Click here to enter a date.. A courtesy copy shall be submitted to chambers in hard copy, and emailed in Microsoft Word format to [email protected]. 3 8. the parties shall file a complete and comprehensive stipulation of uncontested facts on or before Click here to enter a date.; the original shall be filed with the Clerk of the Court, and two (2) copies shall be submitted to the Court (Chambers). 9. At the commencement of trial, the parties shall provide the Court with three (3) copies of a schedule of exhibits which shall briefly describe each exhibit. At the trial, the parties shall provide the Court with two (2) copies of each exhibit at the time of its first use at trial. 10. This case will be listed for trial as follows: Date Certain: Click here to enter a date. Counsel should consider themselves attached as of this date. COUNSEL PLEASE NOTE: This Scheduling Order will be the only written notice counsel receive of the date this case will be tried. Counsel and all parties shall be prepared to commence trial on that date. 11. Any party having an objection to: (a) the admissibility of any exhibit based on authenticity; (b) the adequacy of the qualifications of an expert witness expected to testify; (c) the admissibility for any reason (except relevancy) of any item of evidence expected to be offered, or (d) the admissibility of any opinion testimony from lay witnesses pursuant to Federal Rule of Evidence 701 shall set forth separately each such objection, clearly and concisely, in their pretrial memorandum. Such objection shall describe with particularity the ground and the authority for the objection. Unless the court concludes at trial that manifest injustice will result, the Court can be expected to overrule any objection offered at trial in respect to any matter covered by (a), (b), (c) and/or (d) above, if the Court concludes that the objection should have been made as required by this Order. 12. Only those exhibits, discovery items and expert witnesses identified in the manner set forth in this Order shall be considered by the Court for admission into evidence at trial, unless 4 stipulated to by all affected parties and approved by the Court, or by Order of Court so as to avoid manifest injustice. 13. Because a witness may be unavailable at the time of trial in the manner defined in Federal Rule of Civil Procedure 32(a)(4), the Court expects use of oral or videotape depositions at trial of any witness whose testimony a party believes essential to the presentation of that party's case, whether that witness is a party, a non-party or an expert. The unavailability of any such witness will not be a ground to delay the commencement or progress of an ongoing trial. In the event a deposition is to be offered, the offering party shall file with the Court, prior to the commencement of the trial, a copy of the deposition, but only after all efforts have been made to resolve objections with other counsel. Unresolved objections shall be noted in the margin of the deposition page(s) where a Court ruling is necessary. BY THE COURT: _____________________________ John R. Padova J. 5

=== American College of Trial Lawyers' Code of Pretrial Conduct and Code of Trial Conduct ===

CODE OF PRETRIAL AND TRIAL CONDUCT Please accept this copy of the Code of Pretrial and Trial Conduct published by the American College of Trial Lawyers. The development of this Code by the Fellows of the College and its distribution to persons and institutions engaged in all aspects of the administration of justice represents an important part of the execution of the College's mandate to improve and elevate standards of trial practice, the administration of justice and the ethics of the profession. The American College of Trial Lawyers, founded in 1950, is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only, after careful investigation, to those experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of 15 years' experience before they can be considered for Fellowship. Membership in the College cannot exceed 1% of the total lawyer population of any state or province. Fellows are carefully selected from among those who represent plaintiffs and those who represent defendants in civil cases; those who prosecute and those who defend persons accused of crime. The College is thus able to speak with a balanced voice on important issues affecting the administration of justice. The College is confident that utilization of this Code in the course of legal proceedings in the courts and as a teaching aid at the Bar and in the nation's law schools will represent a positive contribution to improving and elevating standards of trial practice, the administration of justice and the ethics of the profession. NATIONAL OFFICE 19900 MacArthur Blvd. Suite610 Irvine, CA 92612 t: 949.752.1801 f: 949.752.1674 www.actl.com Message from the Chief Justice of the United States For more than fifty years, the American College of Trial Lawyers has promoted professionalism in the conduct of trial litigation. Its authoritative Code of Trial Conduct, first published in 1956, has served as an enduring landmark in the development of professional standards for advocates. The College continues those efforts through the publication of its revised and enlarged Code of Pretrial and Trial Conduct. This comprehensive resource sets out aspirational principles to guide litigators in all aspects of their work as advocates of client interests. The Code looks beyond the minimum ethical requirements that every lawyer must follow and instead identifies those practices that elevate the profession and contribute to fairness in the administration of justice. As Justice Frankfurter noted, "An attorney actively engaged in the conduct of a trial is not merely another citizen. He is an intimate and trusted and essential part of the machinery of justice, an 'officer of the court' in the most compelling sense." I encourage lawyers who engage in trial work to observe and advance the principles that the College has set forth in this volume. I commend the American College of Trial Lawyers for its leadership in defining and refining the standards of professionalism that are vital to our system of justice. John G. Roberts, Jr. Chief Justice of the United States ~\ \'~) " '~) hold every man a debtor to his profession; from the which, as men of course do seek to receive countenance and profit, so ought they of duty to endeavor themselves, by way of amends, to be a help and ornament thereto. " ~ Sir Francis Bacon "::?- AMERICAN COLLEGE OF TRIAL LAWYERS CODE OF PRETRIAL AND TRIAL CONDUCT Approved by the Board of Regents, June 2009 Copyright © 2009 American College of Trial Lawyers All Rights Reserved Table of Contents Page Forward ................................................................................................................................................ 1 Preamble ............................................................................................................................................. 2 Qualities of a Trial Lawyer ................................................................................................................. 3 Obligations to Clients ......................................................................................................................... 3 Obligations to Colleagues ................................................................................................................. 4 Obligations to the Court ..................................................................................................................... 4 Obligations to the System of Justice ............................................................................................... 5 Motions and Pretrial Procedure ....................................................................................................... 6 Discovery .............................................................................................................................................. 8 Relationships with Witnesses and Litigants .................................................................................. 9 Trial .................................................................................................................................................... 11 CODE OF PRETRIAL AND TRIAL CONDUCT Forward r r - : e Legal Ethics and Professionalism Committee of the American College of Trial Lawyers (the l ;'College") is charged with the following mandate: To advance, improve, and promote ethical standards and professionalism in the trial bar in all its aspects in both the United States and Canada as well as to engage in such other activities as may be directed by the Board of Regents. All jurisdictions have codes of conduct that prescribe minimum standards for disciplinary purposes. There is no need here to duplicate such standards. This ACTL Code represents an attempt by the College to set down aspirational, rather than minimal, guidelines for trial lawyers and judges. The problem in trial practice today is not that lawyers violate the ethical rules, although some lawyers do. Most lawyers know the rules and try to comply. The real problem is the gradual corrosion of the profession's traditional aspirations, which are: • • • • • Honor for values such as honesty, respect and courtesy toward litigants, opposing advocates and the court; A distaste for meanness, sharp practice, and unnecessarily aggressive behavior; Engagement in public service; A focus on the efficient, fair preparation and trial of cases; and A role as agent for counseling and for the resolution of disputes. Despite what the profession says, the profession often acts as if these values are inconsistent with effective advocacy in an adversary system of justice. The College is uniquely positioned to lead the way in changing these attitudes because it strives to offer Fellowship only to those lawyers who embody the skill and values to which they and the profession should aspire. The College cannot lead by focusing on the lowest floor of acceptable behavior. The College sees the new code as one that can be endorsed by courts, that can be profitably used in training programs by law schools and bar organizations, and that describes the values that the Fellows of the American College of Trial Lawyers endorse and practice daily. The new Code of Pretrial and Trial Conduct is a product that the College believes can be endorsed by courts and the profession as articulating the level of conduct to which all members of our profession should aspire. If trial lawyers practice these principles the profession will begin a process of change that benefits lawyers, litigants, and our system of justice. CODE OF PRETRIAL AND TRIAL CONDUCT d Preamble A dmission to the Bar is a high honor, and those lawyers who devote their lives to presenting cases in the courts are truly privileged. Trial lawyers are officers of the court. They are entrusted with a central role in the administration of justice in our society necessary to democracy. Lawyers who engage in trial work have a special responsibility to strive for prompt, efficient, ethical, fair and just disposition oflitigation. The American College of Trial Lawyers believes that, as officers of the court, trial lawyers must conduct themselves in a manner that reflects the dignity, fairness, and seriousness of purpose of the system of justice they serve. They must be role models of skill, honesty, respect, courtesy, and fairness consistent with their obligations to the client and the court. Trial lawyers have a duty to conduct themselves so as to preserve the right to a fair trial, one of the most basic of all constitutional guarantees, while courageously, vigorously and diligently representing their clients and applying the relevant legal principles to the facts as found. Without courtesy, fairness, candor, and order in the pretrial process and in the courtroom, reason cannot prevail and constitutional rights to justice, liberty, freedom and equality under law will be jeopardized. The dignity, decorum and courtesy that have traditionally characterized the courts are not empty formalities. They are essential to an atmosphere in which justice can be done. No client, corporate or individual, however powerful, nor any cause, civil, criminal or political, however important, is entitled to receive, nor should any lawyer render, any service or advice encourag ing or inviting disrespect of the law or of the judicial office. No lawyer may sanction or invite corruption of any person exercising a public office or private trust. No lawyer may condone in any way deception or betrayal of the court, fellow members of the Bar, or the public. A lawyer advances the honor of the pro fession and the best interests of the client when a lawyer embodies and encourages an honest and proper respect for the law, its institutions and officers. Above all, a lawyer finds the highest honor in a deserved reputation as an officer for justice, faithful to private trust and to public duty, and as an honest person. This Code of Pretrial and Trial Conduct ("the Code") is not intended to supplant any local rules, procedural rules, or rules of professional conduct. This Code aims to provide aspirational guidance for trial lawyers. It sets forth a standard above the ethical minimum - a standard of conduct worthy of the privileges and responsibilities conferred on those who have sworn to serve our system of justice. This Code is intended to provide guidance for a lawyer's professional conduct except insofar as the applicable law, code or rules of professional conduct in a particular jurisdiction require otherwise. It is an aspirational guide for trial lawyers and should not give rise to a cause of action or sanction, create a presumption that a legal duty has been breached or form the basis for disciplinary proceedings not created under the applicable law, court rules or rules of professional conduct. CODE OF PRETRIAL AND TRIAL CONDUCT a CODE OF PRETRIAL AND TRIAL CONDUCT Qualities of a Trial lawyer Trial lawyers are officers of the court. They are entrusted with a central role in the administration of justice in our society. Lawyers who engage in trial work have a special responsibility to strive for prompt, efficient, ethical, fair and just disposition of litigation. Honesty, Competence and Diligence (a) A lawyer must in all professional conduct be honest, candid and fair. (b) A lawyer must possess and apply the legal knowledge, skill, thoroughness and preparation necessary for excellent representation. (c) A lawyer must diligently, punctually and efficiently discharge the duties required by the representation in a manner consistent with the legitimate interests of the client. Obligations to Clients A lawyer must provide a client undivided allegiance, good counsel and candor; the utmost application of the lawyer's learning, skill and industry; and the employment of all appropriate means within the law to protect and enforce legitimate interests of a client. A lawyer may never be influenced directly or indirectly by any consideration of self-interest. A lawyer has an obligation to undertake unpopular causes if necessary to ensure justice. A lawyer must maintain an appropriate professional distance in advising his or her client, in order to provide the greatest wisdom. Employment and Withdrawal (a) It is the right of a lawyer to accept employment in any civil case unless such employment is or would likely result in a violation of the rules of professional responsibility, a rule of court or applicable law. It is the lawyer's right and duty to take all proper actions and steps to preserve and protect the legal merits of the client's position and claims, and the lawyer should not decline employment in a case on the basis of the unpopularity of the client's cause or position. (b) The right of a person accused of a crime to be represented by competent counsel is essential to our system of justice. A lawyer should not decline such representation because of the lawyer's personal or the community's opinion of the guilt of the accused or heinousness of the crime. A lawyer must raise all defenses and arguments that should be asserted on the client's behalf. Fidelity to the Client's Interests A lawyer must not permit considerations of personal or organizational advancement, financial gain, favor with other persons, or other improper considerations to influence the representation of the client. CODE OF PRETRIAL AND TRIAL CONDUCT a Obligations to Colleagues A lawyer should be straightforward and courteous with colleagues. A lawyer should be cooperative with other counsel while zealously representing the client. A lawyer must be scrupulous in observing agreements with other lawyers. Relations with Other Counsel (a) A lawyer must be courteous and honest when dealing with opposing counsel. (b) A lawyer should not make disparaging personal remarks or display acrimony toward opposing counsel, and must avoid demeaning or humiliating words in written and oral communication with adversaries. (c) When practicable and consistent with the client's legitimate interests and local custom, lawyers should agree to reasonable requests to waive procedural formalities. (d) The lawyer, and not the client, has the discretion to determine the customary accommodations to be granted opposing counsel in all matters not directly affecting the merits of the cause or prejudicing the client's rights. (e) A lawyer must adhere strictly to all written or oral promises to and agreements with opposing counsel, and should adhere in good faith to all agreements implied by the circumstances or by appropriate local custom. (f) Written communications with opposing counsel may record and confirm agreements and understandings, but must not be written to ascribe to any person a position that he or she has not taken or to create a record of events that have not occurred. Obligations to the Court Judges and lawyers each have obligations to the court they serve. A lawyer must be respectful, diligent, candid and punctual in all dealings with the judiciary. A lawyer has a duty to promote the dignity and independence of the judiciary, and protect it against unjust and improper criticism and attack. A judge has a corresponding obligation to respect the dignity and independence of the lawyer, who is also an officer of the court. Communication with the Court (a) A lawyer must always show courtesy to and respect for a presiding judge. While a lawyer may be cordial in communicating with a presiding judge in court or in chambers, the lawyer should never exhibit inappropriate familiarity. In social relations with members of the judiciary, a lawyer should take care to avoid any impropriety or appearance of impropriety. In making any communication about a judge, a lawyer should not express or imply that the lawyer has a special relationship or influence with the judge. (b) A lawyer should never make any attempt to obtain an advantage through improper ex parte communication with a judge or the staff in the judge's chambers. A lawyer must make every effort to avoid such communication on any substantive matter and any matter that could reasonably CODE OF PRETRIAL AND TRIAL CONDUCT d be perceived as substantive, except as addressed in subpart (c) below. When a lawyer informally communicates with a court, the highest degree of professionalism is required. ( c) If ex parte communication with the court is permitted by applicable rules of ethics and procedure, a lawyer must diligently attempt to notify opposing parties, through their counsel if known, unless genuine circumstances exist that would likely prejudice the client's rights if notice were given. When giving such notice, the lawyer should advise the opponent of the basis for seeking immediate relief and should make reasonable efforts to accommodate the opponent's schedule so that the party affected may be represented. (d) When possible, a lawyer's communications with the court related to a pending case should be in writing, and copies should be provided promptly to opposing counsel. When circumstances require oral communication with the court, a lawyer must notify opposing counsel of all such communications promptly. Independence and Impartiality of Judicial Officers and Neutrals (a) Judges, arbitrators, mediators and other neutrals must maintain their independence and impartiality. They must not allow professional or personal relationships, employment prospects or other improper considerations to influence or appear to influence the discharge of their duties. (b) A judge must promote the dignity and proper discharge of the duties of the lawyer, who is also an officer of the court entitled to respect and courtesy. Obligations to the System Of Justice A lawyer has an obligation to promote the resolution of cases with fairness, efficiency, courtesy, and justice. As an officer of the court and as an advocate in the court, a lawyer should strive to improve the system of justice and to maintain and to develop in others the highest standards of professional behavior. Devotion to the System of Public Justice A lawyer must strive at all times to uphold the honor and dignity of the profession. Every lawyer should contribute to the improvement of the system of justice and support those measures that enhance the efficiency, fairness and quality of justice dispensed by the courts. A lawyer should never manifest, or act upon, bias or prejudice toward any person based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status. Pro Bono Publico A lawyer should personally render public interest legal service and support organizations that provide legal services to persons of limited means by contributing time and resources. Settlement and Alternative Dispute Resolution A lawyer must never be reluctant to take a meritorious case to trial ifthe dispute cannot otherwise be satisfactorily resolved. However, a lawyer must provide the client with alternatives to trial when to do so would be consistent with the client's best interests. A lawyer should educate clients early in the legal CODE OF PRETRIAL AND TRIAL CONDUCT d process about various methods of resolving disputes without trial, including mediation, arbitration, and neutral case evaluation. Motions and Pretrial Procedure A lawyer has an obligation to cooperate with opposing counsel as a colleague in the preparation of the case for trial. Zealous representation of the client is not inconsistent with a collegial relationship with opposing counsel in service to the court. Motions and pretrial practice are often sources of friction among lawyers, which contributes to unnecessary cost and lack of collegiality in litigation. The absence of respect, cooperation, and collegiality displayed by one lawyer toward another too often breeds more of the same in a downward spiral. Lawyers have an obligation to avoid such conduct and to promote a respectful, collegial relationship with opposing counsel. Scheduling and Granting Extensions for Pretrial Events (a) A lawyer should schedule pretrial events cooperatively with other counsel as soon as the event can reasonably be anticipated. Lawyers scheduling an event should respect the legitimate obligations of colleagues and avoid disputes about the timing, location and manner of conducting the event. (b) A lawyer should seek to reschedule an event only ifthere is a legitimate reason for doing so and not for improper tactical reasons. A lawyer receiving a reasonable request to reschedule an event should make a sincere effort to accommodate the request unless the client's legitimate interests would be adversely affected. (c) Scheduling pretrial events and granting requests for extensions of time are properly within the discretion of the lawyer unless the client's interests would be adversely affected. A lawyer should counsel the client that cooperation among lawyers on scheduling is an important part of the pretrial process and expected by the court. A lawyer should not use the client's decision on scheduling as justification for the lawyer's position unless the client's legitimate interests are affected. Service of Process, Pleadings and Proposed Orders (a) The timing, manner, and place of filing, electronic filing or serving papers should never be calculated to delay, embarrass or improperly disadvantage the party being served. (b) Unless exigent circumstances require otherwise, papers filed in a court must be promptly served upon or made available to opposing parties or counsel. (c) Papers should not be served in a manner deliberately designed to unfairly shorten an opponent's time for response or to take other unfair advantage of an opponent. (d) Service must be made in a manner that affords an opposing party a fair and timely opportunity to respond, unless exigent circumstances legitimately require or applicable rules permit an ex parte application to the court or an abbreviated time for response. Motion Practice and Other Written Submissions to the Court (a) Before filing pretrial motions, lawyers should work together to resolve issues and to CODE OF PRETRIAL AND TRIAL CONDUCT identify matters not in dispute. When motions are necessary, lawyers should cooperate to facilitate the filing, service, and hearing of the motion. Orders submitted to the court must fairly and accurately reflect the requested or actual ruling of the court. (b) In written submissions and oral presentations, a lawyer should neither engage in ridicule nor sarcasm. Neither should a lawyer ever disparage the integrity, intelligence, morals, ethics, or personal behavior of an opposing party or counsel unless such matters are directly relevant under controlling law. ( c) When documents or data are presented to the court, they must be furnished to opposing counsel in exactly the same format, including identical highlighting or other emphasis. Pretrial Conferences (a) A lawyer should seek to reach agreement with opposing counsel to limit the issues to be addressed before and during trial. (b) A lawyer should determine in advance of a pretrial conference the trial judge's custom · and practices in conducting such conferences. ( c) A lawyer should satisfy all directives of the court set forth in the order setting a pretrial conference and should consult and comply with all local rules and with any specific requirements of the trial judge unless properly challenged when based upon a belief of unfair prejudice to the client. (d) Before a pretrial conference, a lawyer should ascertain the willingness of the client (and the carrier if an insurer is involved) to participate in alternative dispute resolution. (e) Unless unavoidable circumstances prevent it, a lawyer representing a party at a pretrial conference must be thoroughly familiar with each aspect of the case, including the pleadings, the evidence, and all potential procedural and evidentiary issues. (f) A lawyer should alert the court as soon as practicable to scheduling conflicts of clients, experts, and witnesses. (g) If stipulations are possible for uncontested matters, a lawyer should propose specific stipulations and work with opposing counsel to obtain an agreement in advance of the pretrial conference. (h) In advance of a final pretrial conference, discovery should be completed, discovery responses should be supplemented, evidentiary depositions should be concluded, and settlement should be explored. (i) Unless unavoidable circumstances prevent it, the final pretrial conference should be attended by a lawyer who will actually try the case, and, in any event, by a lawyer who is familiar with the case. G) At or before a final pretrial conference, a lawyer should alert the court to the need for any pretrial rulings, hearings on motions or other matters requiring action by the court in advance of trial. (k) At the final pretrial conference, a lawyer should be prepared to advise the court of the status of settlement negotiations and the likelihood of settlement before trial. CODE OF PRETRIAL AND TRIAL CONDUCT d Discovery A lawyer must conduct discovery as a focused, efficient, and principled procedure to gather and preserve evidence in the pursuit of justice. Discourtesy, obfuscation, and gamesmanship have no proper place in this process. Discovery Practice (a) courteous, and fair. In discovery, as in all other professional matters, a lawyer's conduct must be honest, (1) A lawyer should conduct discovery efficiently to elicit relevant facts and evidence and not for an improper purpose, such as to harass, intimidate, unduly burden another party or a witness or to introduce unnecessary delay. Overly broad document requests should be avoided by focusing on clear materiality and a sense of cost/benefit. (2) A lawyer should respond to written discovery in a reasonable manner and should not interpret requests in a strained or unduly restrictive way in an effort to avoid responding or to conceal relevant, nonprivileged information. (3) Objections to interrogatories, requests for production, and requests for admissions must be made in good faith and must be adequately explained and limited in a manner that fairly apprises the adversary of the material in dispute and the bona fide grounds on which it is being withheld. ( 4) When a discovery dispute arises, opposing lawyers must attempt to resolve the dispute by working cooperatively together. Lawyers should refrain from filing motions to compel or for court intervention unless they have genuinely tried, but failed, to resolve the dispute through all reasonable avenues of compromise and resolution. (5) Lawyers should claim a privilege only in appropriate circumstances. They must not assert a privilege in an effort to withhold or to suppress unprivileged information or to limit or delay a response. Requests for additional time to respond to discovery should be made as far in advance of the due date as reasonably possible and should not be used for tactical or strategic reasons. (6) (7) Unless there are compelling reasons to deny a request for additional time to respond to discovery, an opposing lawyer should grant the request without necessitating court intervention. Compelling reasons to deny such a request exist only ifthe client's legitimate interests would be materially prejudiced by the proposed delay. (b) Depositions should be dignified, respectful proceedings for the discovery and preservation of evidence. (1) A lawyer should limit depositions to those that are necessary to develop the claims or defenses in the pending case or to perpetuate relevant testimony. (2) A lawyer should conduct a deposition with courtesy and decorum and must CODE OF PRETRIAL AND TRIAL CONDUCT u never verbally abuse or harass the witness, engage in extended or discourteous colloquies with opposing counsel or unnecessarily prolong the deposition. (3) During a deposition, a lawyer must assert an objection only for a legitimate purpose. Objections must never be used to obstruct questioning, to communicate improperly with the witness, to intimidate, to harass the questioner or to disrupt the search for facts or evidence germane to the case. Relationships with Witnesses and Litigants A lawyer must treat all persons involved in a case with candor, courtesy and respect for their role and rights in the legal process. Communicating with Non party Fact Witnesses (a) A lawyer must carefully comply with all laws and rules of professional responsibility governing communications with persons and organizations with whom the lawyer does not have an attorney-client relationship. A lawyer must be especially circumspect in communications with nonparty fact witnesses who have a relationship to another party. (b) In dealing with a nonparty who is a fact witness or a potential fact witness, a lawyer must: (1) disclose the lawyer's interest or role in the pending matter and avoid misleading the witness about the lawyer's purpose or interest in the communication; (2) (3) nonparty; be truthful about the material facts and the applicable law; if the nonparty has no counsel, correct any misunderstanding expressed by the (4) treat the nonparty courteously; and (5) avoid unnecessarily embarrassing, inconveniencing or burdening the nonparty. ( c) If a lawyer is informed that a non party fact witness is represented by counsel in the pending matter, the lawyer must not communicate with the witness concerning the pending litigation without permission from that counsel. (d) If communicating with a nonparty fact witness, the lawyer should be careful to avoid fostering any impression that the lawyer also represents that witness unless the lawyer does, in fact, represent the witness in compliance with the applicable rules of professional responsibility. (e) A lawyer should not obstruct another party's access to a nonparty fact witness or induce a nonparty fact witness to evade or ignore process. (f) A lawyer should not issue a subpoena to a nonparty fact witness except to compel, for a proper purpose, the witness's appearance at a deposition, hearing, or trial or to obtain necessary documents in the witness's possession. CODE OF PRETRIAL AND TRIAL CONDUCT ii Access to Fact Witnesses and Evidence (a) Subject to the applicable law and ethical principles, and to constitutional requirements in criminal matters, a lawyer may properly interview any person who is not a retained expert, because a fact witness does not "belong" to any party. A lawyer should avoid any suggestion calculated to induce any witness to suppress evidence or to deviate from the truth. However, without counseling the witness to refrain from cooperating with opposing counsel, a lawyer may advise any witness that he or she does not have a legal duty to submit to an interview or to answer questions propounded by opposing counsel, unless required to do so by judicial or legal process. (b) A lawyer may never suppress any evidence that the lawyer or the client has a legal obligation to reveal or to produce. In the absence of such an obligation, however, it is not a lawyer's duty to disclose any work product, evidence or the identity of any witness. (c) A lawyer must not advise or cause a person to secrete himself or herself or to leave the jurisdiction of a tribunal for the purpose of becoming unavailable as a witness. (d) Except as provided in subparagraphs (1) and (2) below, a lawyer should not pay, offer to pay or acquiesce in the payment of compensation to a fact witness and may never offer or give any witness anything of value contingent upon the content of the witnesses' testimony or the outcome of the case. To the extent permitted by the applicable rules of professional responsibility, a lawyer may advance, guarantee or acquiesce in the payment of: (1) (2) or testifying; expenses reasonably incurred by a witness in attending or testifying; and reasonable compensation to a witness for the witness's loss of time in attending ( e) A lawyer may solicit witnesses to a particular event or transaction but not to testify to a particular version of the facts. Relations with Consultants and Expert Witnesses (a) In retaining an expert witness, a lawyer should respect the integrity, professional practices and procedures in the expert's field and must never ask or encourage the expert to compromise the integrity of those practices and procedures for purposes of the particular matter for which the expert has been retained. (b) A retained expert should be fairly and promptly compensated for all work on behalf of the client. A lawyer must never make compensation contingent in any way upon the substance of the expert's opinions or written report or upon the outcome of the matter for which the expert has been retained. c) Other than as expressly permitted by governing law, a lawyer should not communicate with, or seek to communicate with, an expert witness concerning the pending litigation whom the lawyer knows to have been retained by another party, unless express permission is granted by counsel for the retaining party. CODE OF PRETRIAL AND TRIAL CONDUCT Trial A lawyer must conduct himself or herself in trial so as to promote respect for the court and preserve the right to a fair trial. A lawyer should avoid any conduct that would undermine the fairness and impartiality of the administration of justice, and seek to preserve the dignity, decorum, justness and courtesy of the trial process. Relations with Jurors Lawyers and judges should be respectful of the privacy of jurors during voir dire and after a verdict. A lawyer should abstain from all acts, comments and attitudes calculated to inappropriately curry favor with any juror, such as fawning, flattery, solicitude for the juror's comfort or convenience or the like. Courtroom Decorum (a) Proper decorum in the courtroom is not an empty formality. It is indispensable to the pursuit of justice at trial. (b) In court, a lawyer should always display a courteous, dignified and respectful attitude toward the judge presiding and should promote respect for and confidence in the judicial office. The judge should be courteous and respectful to the lawyer, who is also an officer of the court. (c) A lawyer should never engage in discourteous or acrimonious comments or exchanges with opposing counsel. Objections, requests and observations must be addressed to the court. (d) A lawyer should advise the client and witnesses appearing in the courtroom of the kind of behavior expected and counsel them against engaging in any disrespectful, discourteous or disruptive behavior in the courtroom. Trial Conduct (a) A lawyer has the professional obligation to represent every client courageously, vigorously, diligently and with all the skill and knowledge the lawyer possesses. The conduct of a lawyer before the court and with other lawyers should at all times be characterized by civility. A lawyer should present all proper arguments against rulings the lawyer deems erroneous or prejudicial and ensure that a complete and accurate case record is made. In doing so, the lawyer should not be deterred by any fear of judicial displeasure. (b) In appearing in a professional capacity before a tribunal, a lawyer must not: (I) improperly obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value; nor should a lawyer counsel, permit or assist another person to do any such act; (2) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; or allude to any matter that the lawyer does not reasonably believe is relevant or will not be supported by admissible evidence, assert personal knowledge of facts in issue except when (3) CODE OF PRETRIAL AND TRIAL CONDUCT w testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused. (c) A lawyer should not interrupt or interfere with an examination or argument by opposing counsel, except to present a proper objection to the court. (d) When a court has made an evidentiary ruling, a lawyer should not improperly circumvent that ruling, although a lawyer may seek to make a record of the excluded evidence or a review of the ruling. (e) A lawyer must not attempt to introduce evidence or to make any argument that the lawyer knows is improper. If a lawyer has doubt about the propriety or prejudicial effect of any disclosure to the jury, the lawyer should request a ruling out of the jury's hearing. (f) A lawyer should never engage in acrimonious conversations or exchanges with opposing counsel in the presence of the judge or jury. (g) Examination of jurors and of witnesses should be conducted from a suitable distance, except when handling evidence or circumstances otherwise require. (h) Unless local custom dictates otherwise, a lawyer should rise when addressing or being addressed by the judge, except when making brief objections or incidental comments. A lawyer should be attired in a proper and dignified manner in the courtroom. A lawyer should not in argument assert as a fact any matter that is not supported by A lawyer must never knowingly misquote or mischaracterize the contents of documentary evidence, the testimony of a witness, the statements or argument of opposing counsel, or the language of a judicial decision. (i) evidence. (j) (k) A lawyer should not propose a stipulation in the jury's presence unless the lawyer knows or has reason to believe the opposing lawyer will accept it. (I) A lawyer who receives information clearly establishing that the client has, during the representation, perpetrated a fraud on the court should immediately take the actions required by the appropriate procedural and ethical rules. Public Statements about Pending Litigation A case should be tried in the courtroom and not in the media. A lawyer should follow all rules and orders of the court concerning publicity. In the absence of a specific rule or order, a lawyer should not make any extrajudicial statement that may prejudice an adjudicative proceeding. CODE OF PRETRIAL AND TRIAL CONDUCT w American College of Trial La>vyers 19900 MacArthur Boulevard, Suite 610 Irvine, California 92612 (Phone) 949-752-1801 (Fax) 949-752-1674 Website: www.actl.com