Practice Pointers (PJS.pdf)

CHIEF JUDGE PATRICK J. SCHILTZ PRACTICE POINTERS AND PREFERENCES January 2025 Contact with Chambers • • Parties may contact Judge Schiltz’s courtroom deputy regarding pending cases. Judge Schiltz’s courtroom deputy will not give legal advice, but she will answer questions about Judge Schiltz’s policies and preferences. Motion Scheduling • • • • • Parties should contact Judge Schiltz’s courtroom deputy to schedule oral argument on dispositive motions. The dispositive-motion deadline in cases assigned to Judge Schiltz is always a “heard by” date.

Parties should contact chambers three to four months in advance of the dispositive-motion deadline in the pretrial-scheduling order to ensure that they obtain a hearing date before the deadline. Parties who seek to obtain a hearing date for a motion in lieu of an answer (such as a motion to dismiss under Fed. R. Civ. P. 12(b)(6 should contact chambers as soon as possible after being served with the complaint, and not wait until the day the answer is due. Oral arguments may be scheduled on any day of the week. Judge Schiltz does not have a “motions day.” Nondispositive motions are heard by the magistrate judge.

Hearings on such motions should be scheduled by contacting the magistrate judge’s courtroom deputy. Judge Schiltz personally hears motions for default judgments under Fed. R. Civ. P. 55(b)(2). Such motions are dispositive. A party should not file a motion for a default judgment until the party first asks the Clerk to enter the default under Fed. R. Civ. P. 55(a).

Judge Schiltz hears Markman motions himself. Parties are required to attend an informal “pre-Markman conference” with Judge Schiltz before the hearing on the Markman motion will be scheduled. • • Before contacting Judge Schiltz’s courtroom deputy to schedule a hearing on a summary-judgment motion, the parties should confer as to whether they intend to bring cross-motions for summary judgment. Judge Schiltz issues a briefing order for cross-motions for summary judgment that modifies the deadlines provided in the Local Rules. All parties’ summary-judgment motions will be argued at a single hearing.

Judge Schiltz hears Daubert motions himself. 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 Local Rule 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 Judge Schiltz resolves any dispositive motions.

Written Submissions • Parties must adhere to the word limits and briefing deadlines set forth in the Local Rules. Motions to enlarge the word limits are highly disfavored. Such requests must be filed in advance of the filing of the subject brief in accordance with Local Rule 7.1(f)(1)(D). The subject brief should not be filed unless and until the request is granted.

See Randall v. Lady of Am. Franchise Corp., No. 04-CV-3394, Order [Docket No. 123] (D. Minn. Sept. 13, 2006).

Before filing a motion or stipulation to alter the briefing schedule imposed by the Local Rules or by a briefing order, the parties must contact Judge Schiltz’s courtroom deputy for instructions on how to proceed. -2- • • • • Parties may not file multiple contemporaneous or near-contemporaneous summary-judgment motions in order to obtain additional briefing space. “For purposes of the word and line limits in Local Rule 7.1(f), multiple motions for full or partial summary judgment filed by a party at or about the same time will be considered a single motion.” Local Rule 7.1(c)(4). Judge Schiltz does not permit “motions to strike” unless they are directed at a pleading pursuant to Rule 12(f). Motions to strike affidavits, memoranda, or other materials supporting a motion are not authorized by either the Federal Rules of Civil Procedure or the Local Rules.

See Carlson Mktg. Group, Inc. v. Royal Indem. Co., 2006 WL 2917173, 2006 U.S. Dist. LEXIS 74208 (D. Minn.

Oct. 11, 2006). One courtesy copy of memoranda and supporting documents should be delivered to the chambers of Judge Schiltz. The courtesy copies should be three-hole punched and unstapled, and the supporting documents should be appropriately tabbed and placed in a three-ring binder.

Courtesy copies of documents filed under seal or filed with redactions must be unredacted. Judge Schiltz prefers that parties note the docket number of the filed document on the courtesy copies submitted to the Court. (An easy way to do this is to submit copies of filed documents with the CM/ECF header on the documents.) Under Local Rule 7.1(k), an unpublished opinion cited in a memorandum should not be filed with the Court or served on opposing parties, unless the opinion is not available in CM/ECF or on Westlaw or LEXIS. In-Court Proceedings • • • Try to arrive at least 15 minutes before the hearing is scheduled.

Judge Schiltz almost always begins hearings at or slightly before the scheduled time. Observe formal decorum in the courtroom. Stand at the podium and formally address the Court so that Judge Schiltz and his court reporter will have no difficulty hearing you. Judge Schiltz carefully reads the briefs before the oral argument.

Judge Schiltz does not use oral argument to listen to attorneys summarize what is in the briefs; -3- • • • • • Trials • • instead, he uses oral argument to engage in a back-and-forth discussion of the case with the attorneys. Counsel should be prepared to answer detailed questions about the case, including questions about the evidence in the record. Judge Schiltz does not place time limits on attorneys at oral argument. Oral argument will continue until Judge Schiltz has asked all of his questions and the attorneys have made all of their points.

A party may not use PowerPoint at a motions hearing to summarize or restate arguments or to add new arguments or evidence. A party may use PowerPoint to examine or highlight a particular portion of the record, such as the disputed language of a contract or a photograph of an allegedly defective product. Judge Schiltz does not object to a party’s oral argument being divided among two attorneys, particularly if dividing the argument gives a newer attorney a chance to gain experience. TROs, preliminary injunctions, and Daubert motions are typically handled without witness testimony.

If a party intends to present witness testimony at such a hearing, the party must notify the Court and the opposing party and provide witness and exhibit lists at least two business days before the hearing. If a party submits new legal authority at oral argument, that party should provide courtesy copies of the authority to Judge Schiltz and opposing counsel. Judge Schiltz issues a trial notice containing detailed instructions for the parties approximately 90 days prior to the start of a civil trial. Judge Schiltz conducts the voir dire himself, using a combination of his standard questions and case-specific questions submitted by the parties.

In criminal cases, counsel are usually given 10 minutes to conduct voir dire after Judge Schiltz completes his questions. In civil cases, counsel are usually not permitted to conduct voir dire; instead, Judge Schiltz will call them to sidebar and ask if there are any additional questions that they would like him to ask. -4- • • • • • • • • • Parties’ proposed jury instructions must identify supporting legal authority for each instruction. Judge Schiltz prefers to use the Eighth Circuit model instructions, but he will use O’Malley when it fills gaps in the Eighth Circuit instructions or when it does a better job covering a particular topic. Unless there is a good reason not to do so, parties are expected to cite the most current version of the supporting authority for each jury instruction.

Parties are required to meet and confer regarding jury instructions in advance of trial and jointly file one set of proposed jury instructions. 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. Parties should use motions in limine to address evidentiary issues that are likely to arise at trial, not to reargue summary-judgment motions or motions to dismiss. Judge Schiltz typically conducts pretrial conferences on Fridays and begins trials on Mondays. Judge Schiltz typically rules on all motions in limine from the bench at the pretrial conference.

Judge Schiltz’s trial days generally run from 8:30 am to 4:30 pm, with a 15-minute break in the morning, a lunch break from 12:00 noon to 1:30 pm, and a 15-minute break in the afternoon. Counsel must have sufficient witnesses on hand to assure that testimony can be taken every day until 4:30 pm. Counsel are required to give each other 24 hours’ notice of the witnesses they intend to call on any particular day during trial. Attorneys must stand when making objections and use the lectern when examining witnesses and addressing the jury.

Attorneys need not ask Judge Schiltz’s permission to approach a witness. All exhibits should be marked in advance of trial as instructed in the trial notice. The parties must have paper copies of exhibits to show witnesses prior to the -5- exhibits being admitted. After an exhibit is admitted, the exhibit may be published to the jury electronically.

Prior to closing arguments, the parties must provide the Court with a thumb drive containing all admitted exhibits. The thumb drive will be available to the jury during deliberations, and will be retained by the Court. Any paper and other physical exhibits will be returned to counsel after the verdict is returned. The parties should contact Judge Schiltz’s courtroom deputy to schedule a “tech run-through” prior to trial to ensure they are familiar with the available courtroom technology and understand its capabilities and limitations.

Settlement Conferences • • Judge Schiltz refers all settlement conferences to the magistrate judge. Parties should request a settlement conference through the magistrate judge’s courtroom deputy. Parties are welcome to retain a private mediator to conduct a settlement conference in lieu of asking a magistrate judge to conduct a settlement conference. -6-