Practice Pointers (NEB.pdf)

JUDGE NANCY E. BRASEL

Practice Pointers and Preferences Contact with Chambers  Judge Brasel requires that attorneys and their staff contact her courtroom deputy at 612-664-5050, not her law clerks. Motion Scheduling  Judge Brasel follows the local rules for scheduling dispositive motion hearings. All moving papers must be ready to be filed prior to receiving a hearing date. As a reminder after the hearing date is obtained, the date for submission of the responsive brief will be 21 days from the filing of the motion.

The reply brief will be due 14 days after the responsive brief is filed.  Judge Brasel no longer requires courtesy copies of motion filings.  Oral argument on dispositive motions, unless otherwise expedited, must take place at least 42 days after the filing of a party’s motion papers. Motions are typically heard on Mondays and Wednesdays.  Parties filing papers in an expedited hearing such as a Temporary Restraining Order shall properly serve the motion to the other party and contact chambers with the contact information for both sides. The Court will review the moving papers and provide the moving party with a hearing date and briefing schedule.  Judge Brasel hears Daubert motions herself. The scheduling of Daubert motions varies depending on the nature of the motion: Sometimes a party seeks to bring a Daubert motion in connection with a dispositive motion.

Generally, the party argues that the testimony of an expert witness should be excluded and that, without such testimony, a claim or defense of the opposing party must be dismissed. This type of Daubert motion should be brought contemporaneously with the dispositive motion, and both the Daubert motion and the dispositive motion should be addressed in the same memoranda. For purposes of the word-count limit in D. Minn. L.R. 7.1(f), the Daubert motion and the dispositive motion are treated as a single motion.

Sometimes a party seeks to bring a Daubert motion that will exclude the anticipated trial testimony of an expert witness but that will not eliminate the need to try a claim or defense. This type of Daubert motion should be brought as a motion in limine in accordance with the trial notice. Trial notices are issued after the final ruling on dispositive motions and after a final settlement conference.  Parties may not file a motion for summary judgment prior to the discovery deadline unless they have received special permission from the Court.  When scheduling a motion, the parties should work together and inform the courtroom deputy of all motions pending in a particular case to ensure that they are all heard together. Also, if there are related cases with related motions, the parties should inform the courtroom deputy of this fact.  Motions to transfer, remand, and compel arbitration are to be briefed as dispositive motions under the Local Rules.  All motions for discovery shall be heard by the Magistrate Judge.   Plaintiff shall serve Defendant when filing a Motion for Default Judgment.

A certificate of service should be filed on ECF providing proof of service to the Defendant prior to the hearing. If exhibits are attached to a filing, each exhibit shall be filed separately as an attachment to the filing on ECF. For example, a declaration filed at ECF No. 4 will attach Exhibit 1 as ECF No. 4-1, Exhibit 2 as ECF No. 4-2, and so on. Including a brief description of the filing on ECF is very helpful to the Court.

Please do not file multiple exhibits as a single attachment. Failure to file exhibits separately may require the filer to refile the exhibits. Written Submissions  Follow the word and page limits set forth in the Local Rules. Parties shall not file a separate motion for each count of the complaint in order to gain additional briefing.  Page or word count extensions may be in a form of a motion or a letter and must be  requested well in advance of the filing deadline.

If possible, the parties should submit briefs and exhibits that are hyperlinked and searchable.  Parties should pay particular attention the local rules and ECF rules on filing sealed and redacted documents to assist in protecting the necessary information.  When citing an unpublished opinion in a memorandum, the citation should include the case number and, if available, the Westlaw or Lexis citation. Parties shall not omit either the case number or a readily available Westlaw or Lexis citation in order to obtain additional briefing space.  When submitting deposition transcripts, parties should file complete transcripts of the deposition testimony (rather than partial transcripts). In-Court Proceedings  Be on time. Please try and arrive at least 15 minutes prior to the scheduled hearing so all parties can be checked in and the hearing can begin on time.  Please stand at the podium when addressing the Court and counsel.

Address the Court and opposing counsel with civility and formality.  Judge Brasel typically allows 30 minutes to each side for oral argument on motions. This includes summary judgment, preliminary injunction, and Daubert motions. When multiple motions are being heard, the time allotment for arguments will be subject to the Court’s discretion. Please contact the courtroom deputy if you believe you will need more time.  Parties are encouraged to make use of courtroom technology during oral argument on motions and at trial.

Please bring copies of any power points used during oral argument for opposing counsel and two copies for the Court. Please become familiar with courtroom technology before using it. Training can be arranged through the courtroom deputy.  Attorneys should not repeat the facts stated in the briefs and instead should focus on the key issues.  Any additional case law presented at or after oral argument must be furnished to the opposing counsel prior to submitting it to the Court. If submitting the case law the day of oral argument, please supply the Court with two copies.  TROs, preliminary injunctions, and Daubert motions are handled without witness testimony, absent advance permission from the Court.

Trial  Judge Brasel will issue a trial notice containing detailed instructions for the parties at least four weeks prior to the start of trial.  No party may submit more than five motions in limine except in extraordinary circumstances and with the prior permission of the Court. Each motion in limine must be limited to one discrete issue. No brief in support of, or in opposition to, any motion in limine may exceed 3000 words. No reply brief may be submitted with respect to any motion in limine.  Judge Brasel will typically rule on motions in limine after the pretrial conference in the case.  The parties are required to meet and confer in advance of trial and then jointly submit to the Court the proposed jury instructions on which they agree.

Parties shall stipulate to as many exhibits as possible prior to trial.  Judge Brasel conducts voir dire herself, using a combination of standard questions and case-specific questions submitted by the parties. Counsel may be given an opportunity to propose additional questions for the Judge to ask jurors.  Judge Brasel’s trial days generally run from 9:00 a.m. to 5:00 p.m., with a 15-minute break in the morning and a 15-minute break in the afternoon, and one hour for a lunch break. Counsel must have sufficient witnesses on hand to assure that testimony can be taken every day until 5:00 p.m.  Attorneys should stand and use the microphones provided at counsel table when making objections.  Video recordings used at trial shall be pre-edited to the relevant portion. Disputes regarding  the use of video recordings should be raised in a motion in limine.

If attorneys wish to contact jurors after the trial, they must seek written permission from Judge Brasel in all cases. Settlement Conferences  Judge Brasel refers all settlement conferences to the Magistrate Judge. The Court will allow more than one settlement conference in a case.