Pre-trial Notice; Jury Trials; Non-jury Trials

=== Pre-trial Notice ===

THIS PRE-TRIAL NOTICE CONTAINS NEW MATERIAL. REVISED OCTOBER, 2014. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JUDGE CARL J. BARBIER PRE-TRIAL NOTICE IT IS ORDERED that a pre-trial conference will be held in chambers before Judge Carl J. Barbier, Section "J", in the case shown on the attached scheduling order. The purpose of the pre-trial conference is to secure a just and speedy determination of the issues. If the type of pre- trial order set forth below does not appear calculated to achieve these ends in this case, please request a telephone conference with the Judge and opposing counsel immediately so that alternative possibilities may be discussed. The procedure necessary for the preparation of the formal pre-trial order that will be reviewed and entered at this confer- ence is as follows: I. The proposed Pre-Trial Order must be filed electronically by 4:00 p.m. on a day that allows one full work day prior to the conference, excluding Saturdays, Sundays and holidays (i.e., if the conference is set for 10:00 a.m. Thursday, it must be filed by 4:00 p.m. Tuesday. If the conference is set on Monday, the pre-trial order must be filed on Thursday by 4:00 p.m.). (Alternatively, in lieu of electronic filing, an original and one hard copy may be hand delivered to chambers in accordance with the same deadlines.) II. Counsel for all parties shall confer in person (face to face) or by telephone at their earliest convenience for the purpose of arriving at all possible stipulations and for the exchange of copies of documents that will be offered in evidence at the trial. It shall be the duty of counsel for plaintiff to initiate this conference, and the duty of other counsel to respond. If, after reasonable effort, any party cannot obtain the cooperation of other counsel, it shall be his duty to communicate immediately with the Court. The conference of counsel shall be held at least ten days prior to the date of the scheduled pre-trial conference in order that counsel for all parties can furnish each other with a statement of the real issues each party will offer evidence to support, eliminating any issues that might appear in the pleadings about which there is no real controversy, and including in such statement issues of law as well as ultimate issues of fact from the standpoint of each party. Counsel for plaintiff then will prepare a proposed pre-trial order and submit it to opposing counsel for approval and signature, after which all counsel jointly will submit the final draft of the proposed pre-trial order to the Court. III. At their meeting, counsel must consider the following: A. Jurisdiction. Since jurisdiction may not ever be conferred by consent and since prescription or statutes of limitations may bar a new action if the case or any ancillary demand is dismissed for lack of jurisdiction, counsel should make reasonable effort to ascertain that the Court has jurisdiction. B. Parties. Correctness of identity of legal entities; necessity for appointment of tutor, guardian, administrator, executor, etc., and validity of appointment if already made; correctness of designation of party as partnership, corporation or individual d/b/a trade name. C. Joinder. Questions of misjoinder or nonjoinder of parties. IV. At the pre-trial conference counsel must be fully authorized and prepared to discuss settlement possibilities with the Court. Counsel are urged to discuss the possibility of settlement with each other thoroughly before undertaking the extensive labor of preparing the proposed pre-trial order. Save your time, the Court's time, and the client's time and money. V. The pre-trial conference must be attended in person by the attorneys who will try the case, unless prior to the conference the Court grants permission for other counsel to attend. These attorneys will familiarize themselves with the pre-trial rules, and will come to the conference with full authority to accomplish the purposes of Rule 16 of the Federal Rules of Civil Procedure. Pre-trial conferences will not be continued except for VI. -2- good cause shown in a written motion presented sufficiently in advance of the conference for opposing counsel to be notified. VII. Failure on the part of counsel to appear at the confer- ence may result in sanctions, including but not limited to sua sponte dismissal of the suit, assessment of costs and attorney fees, default, or other appropriate sanctions. VIII. All pending motions and all special issues or defenses raised in the pleadings must be called to the Court's attention in the pre-trial order. IX. The pre-trial order shall contain the signatures of all counsel at the time it is submitted to the Court; the pre-trial order shall also contain an appropriate signature space for the Judge. Following the pre-trial conference, the Judge will issue a minute entry noting approval of the proposed pre-trial order, with any changes noted. If the proposed order was hand filed, the Judge will sign the pre-trial order, and the signed copy of the order will be filed into the record, and the additional copy will be retained in the Judge's chambers. THE PROPOSED PRE-TRIAL ORDER SHOULD INCLUDE THE FOLLOWING INFORMATION, AND EACH NUMBERED PARAGRAPH IS TO BE PRECEDED BY A HEADING DESCRIPTIVE OF ITS CONTENT: 1. 2. 3. The date and time of the pre-trial conference. The appearance of counsel identifying the party(s) represented. A description of the parties, and in cases of insurance carriers, their insured must be identified. The legal relationships of all parties with reference to the claims, counterclaims, third-party claims and cross claims, etc. 4. a. With respect to jurisdiction, a brief summary of the factual basis supporting each claim asserted, whether original claim, counterclaim or third-party claim, etc., and, the legal and jurisdictional basis for each such claim, or if contested, the jurisdictional questions; b. In diversity damage suits, there is authority for -3- dismissing the action, either before or after trial, where it appears that the damages reasonably could not come within the jurisdictional limita- tion. Therefore, the proposed pre-trial order in such cases shall contain either a stipulation that more than $75,000 (excluding interest and costs)is involved or a brief summary of the evidence sup- porting the claim that this sum reasonably could be awarded. 5. 6. A list and description of any motions pending or contem- plated and any special issues appropriate for determina- tion in advance of trial on the merits. If the Court at any prior hearing has indicated that it would decide certain matters at the time of the pre-trial conference, a brief summary of those matters and the position of each party should be included. A brief summary of the material facts claimed by: a. Plaintiff b. Defendant c. Other parties. 7. A joint single listing of all uncontested material facts. 8. A single listing of the contested issues of fact. (This does not mean that counsel must concur in a statement of the issues; it simply means that they must list in a single list all issues of fact.) Where applicable, particularities concerning the following fact issues shall be set forth: a. b. c. Whenever there is an issue concerning the seaworthiness of a vessel or an alleged unsafe condition of property, the material facts and circumstances relied upon to establish the claimed unseaworthy or unsafe condition shall be specified with particularity; Whenever there is an issue concerning the negli- gence of the defendant or contributory or compara- tive negligence of the plaintiff, the material facts and a circumstances relied upon to establish the claimed negligence shall be specified with particularity; Whenever personal injuries are at issue, the nature and extent of the injuries and of any alleged disability shall be specified with particularity; d. Whenever the alleged breach of a contractual obli- -4- gation is at issue, the act or omissions relied upon as constituting the claimed breach shall be specified with particularity; Whenever the meaning of a contract or other writing is at issue, all facts and circumstances surround- ing execution and subsequent to execution, both those admitted and those at issue, which each party contends serve to aid interpretation, shall be specified with particularity; Whenever issues of duress, fraud or mistake are at issue, the facts and circumstances relied upon as constituting the claimed duress, fraud or mistake (see Fed. R. Civ. P. 9(b must also be set forth in the pre-trial order; If special damages are sought, they must be item- ized with particularity. (See Fed. R. Civ. P. 9(g ; If a conspiracy is charged, the details of facts constituting the conspiracy must be particularized. e. f. g. h. 9. 10. A single listing of the contested issues of law. (See explanation in 8 above.) For each party, a list and description of exhibits intended to be introduced at the trial. Prior to the drafting of the pre-trial order, the parties shall meet, exchange copies of all exhibits, and agree as to their authenticity and relevancy. As to any exhibits to which the parties cannot agree, objections and memoranda shall be submitted not later than five working days prior to trial. a. Each list of exhibits first should describe those that are to be admitted without objection, and then those to which there will be objection, noting by whom the objection is made (if there are multiple adverse parties), and the nature of the objection. Markers identifying each exhibit should be attached to the exhibits at the time they are shown to opposing counsel during preparation of the pre- trial order; b. If a party believes he has good cause not to dis- close exhibits to be used solely for the purpose of impeachment, he must ex parte request a telephone conference with the Court and make his position known to the Court in camera not less than 30 days -5- c. d. e. prior to the pre-trial conference. Where appropriate to preserve trade secrets or privileges, the listing of exhibits may be made subject to a protective order or in such other fashion as the Court may direct. If there are such exhibits, the pre-trial order will state: The parties will discuss exhibits alleged to be privileged (or to contain trade secrets, etc.) at the pre-trial conference. In addition to the list of exhibits, counsel shall furnish copies to opposing counsel and cooperate to prepare joint bench book of all un-objected to exhibits (in a loose leaf binder, properly tabbed and indexed), which must be delivered to the Court five working days before trial. It is helpful if each page of the exhibit book is Bates stamped. The Court also strongly suggests that counsel agree to remove all unnecessary pages from individual exhibits that may be voluminous, such as medical or employment records. A second loose leaf binder should contain all objected-to exhibits. At trial, all exhibits must be displayed by elec- tronic means. The courtroom is equipped with electronic equipment that allows counsel to plug in a laptop with their exhibits contained on a hard drive or disc. A document camera ("Elmo") is also available. Counsel should familiarize themselves with the courtroom and this electronic equipment in advance of the trial date. Counsel may schedule a date and time to meet with the Case Manager for an orientation on use of the courtroom equipment. The Court will make this equipment available during trial, but counsel must arrange for someone who is able to operate the electronic equipment during the trial. f. Unless otherwise ordered by the Court for good cause, exhibits that are not identified in the pre- trial order will not be admitted or used at trial. 11. a. A list of all deposition testimony to be offered into evidence. The parties shall, prior to trial, meet and agree as to the elimination of all irrele- vant and repetitive matter and all colloquy between counsel. In addition, the parties shall, in good faith, attempt to resolve all objections to testi- mony so that the Court will be required to rule only on those objections to which they cannot reach -6- an agreement as to their merit. As to all objec- tions to the testimony which cannot be amicably resolved, the parties shall deliver to the Court, not less than five working days prior to trial, a statement identifying the portions objected to, and the grounds therefor. Proponents and opponents shall furnish the Court appropriate statements of authorities in support of their positions as to the proposed testimony. b. In non-jury trials, the parties shall, at least five working days prior to trial, submit to the Court: 12. a. b. 13. a. A summary of what each party intends to prove and convey to the Court by the deposition testimony, including, where appropriate, particular page and line reference to said depositions. The parties shall indicate to the Court by page and line numbers, those parts of the deposition which each party intends to use, and upon which each party shall rely, in proving their respective cases. A list and brief description of any charts, graphs, models, schematic diagrams, and similar objects which, although not to be offered in evidence, respective counsel intend to use in opening state- ments or closing arguments; Either a stipulation that the parties have no objection to the use of the listed objects for such purpose, or a statement of the objections to their use; and a statement that if other such objects are to be used by any party, they will be submitted to opposing counsel at least five working days prior to trial and, if there is then opposition to their use, the dispute will be submitted to the Court at least three working days prior to trial. A list of witnesses for all parties, including the names, addresses and statement of the general subject matter of their testimony (it is not suffi- cient to designate the witness simply "fact," "medical" or "expert"), and an indication in good faith of those who will be called in the absence of reasonable notice to opposing counsel to the con- trary. If a party believes that he has good cause not to disclose a witness to be used solely for impeachment, not less than 30 days prior to the pre-trial conference, he must submit an ex-parte -7- b. c. d. request for a telephone conference with the Court and make his position known in camera. A statement that the witness list was filed in accordance with prior court orders. No other witness shall be allowed unless agreeable to all parties and their addition does not affect the trial date. This restriction will not apply to rebuttal witnesses or documents whose necessity cannot be reasonably anticipated. Furthermore, in the case of expert witnesses, counsel shall certify that they have exchanged expert reports in accor- dance with prior court orders. Expert witnesses whose reports have not been furnished to opposing counsel shall not be permitted to testify nor shall experts be permitted to testify to opinions not included in the reports timely furnished; Except for good cause shown, the Court will not permit any witness to testify unless there has been complete compliance with all provisions of the pre- trial order and prior court orders; Counsel shall not be allowed to ask questions on cross-examination of an economic expert which would require the witness to make mathematical calcula- tions in order to frame a response unless the factual elements of such questions shall have been submitted to that expert witness not less than five full working days before trial. 14. A statement indicating whether the case is a jury or non- jury case. a. If the case is a jury case, then indicate whether the jury trial is applicable to all aspects of the case or only to certain issues, which issues shall be specified. In jury cases, include the following provision: "Proposed jury instructions, special jury interrogatories, trial memoranda and any special questions that the Court is asked to put to prospective jurors on voir dire shall be delivered to the Court and opposing counsel not later than five working days prior to the trial date, unless specific leave to the contrary is granted by the Court." b. In a non-jury case, each party's proposed findings of fact and conclusions of law must be submitted to -8- chambers, not less than five full working days prior to trial. c. The parties may also submit trial memoranda as to any legal or evidentiary issues, but such memoranda are not required unless ordered by the Court. Any such memoranda should be submitted not less than five full working days prior to trial. In cases where damages are sought, include a statement for completion by the Court, that "The issue of liability (will or will not) be tried separately from that of quantum." Counsel should be prepared to discuss at the pre-trial conference the feasibility of separating such issues. Counsel likewise should consider the feasibility and desirability of separate trials as to other issues. A statement describing any other matters that might expedite a disposition of the case. A statement that trial shall commence on , 20 at a.m., and a realistic estimate of the number of trial days required. Where counsel cannot agree upon the number of trial days required, the estimate of each side should be given. A statement that "This pre-trial order has been formu- lated after conference at which counsel for the respec- tive parties have appeared in person. Reasonable opportunity has been afforded counsel for corrections, or additions, prior to signing. Hereafter, this order will control the course of the trial and may not be amended except by consent of the parties and the Court, or by order of the Court to prevent manifest injustice." The statement that "Possibility of settlement of this case was considered." The proposed pre-trial order must contain appropriate signature spaces for counsel for all parties and the Judge. 15. 16. 17. 18. 19. 20. IT IS FURTHER ORDERED that the foregoing pre-trial notice be provided to counsel of record for all parties in this case, and counsel must comply with the directions set forth herein. New Orleans, Louisiana CARL J. BARBIER UNITED STATES DISTRICT JUDGE -9- -10-

=== Jury Trials ===

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SECTION "J" JURY TRIALS Unless otherwise ordered, counsel should prepare for a jury trial as follows: (1) All exhibits will be presented to the jury by electronic means. Counsel may use a laptop or iPad to connect to the Court's electronic evidence system, either at counsel table or at the podium. There is also a document camera ("Elmo") contained in the podium. (2) Not less than five working days before trial at noon, Plaintiff's counsel is to prepare and submit to the Court one copy of a single joint Bench Book of "Un-objected" exhibits, which should contain: (a) An Index of all "un-objected to" exhibits, listing and numbering all exhibits sequentially and without reference to the offering party; (b) All un-objected to exhibits are to be included in the single Bench Book (with multiple volumes if necessary) with each exhibit tabbed, numbered, and paginated. Photographs of large exhibits and posters are to be included in the Bench Book. While oversized exhibits and posters may be used during trial, they will not be kept by the Case Manager. (c) A second volume, containing the "objected to" exhibits shall also be filed. Separate, but brief memoranda stating the reason for the objections and responding to the objections of other counsel must be submitted to the court by the offering party not less than five working days before trial at noon; counsel should bring sufficient copies of any “objected to” exhibits on the day of trial to insert into the “un-objected to” book if they are admitted by the Court over the objections. (d) Any discovery that will be used as an Exhibit must be specifically identified; for example, the exact Interrogatory and the corresponding Answer. (e) Each page of the Bench Book should be individually and sequentially Bates labeled. (f) Deposition transcripts should not be included as exhibits. Instead, the parties may simply offer a deposition in lieu of a live witness appearing at trial. (3) Not less than five working days before trial at noon, the parties are to submit a hard copy of the entire transcript of any deposition (including video and audio depositions) which will be used in lieu of live testimony at Trial. If the parties do not seek to introduce the entire deposition, they should designate which portions they seek to introduce in a letter to the Court. All colloquy and objections (which can be resolved among the parties) are to be removed in the transcripts, video, and audio (if applicable). Any objections which cannot be worked out by the parties must be highlighted in the subject transcript and brief memoranda addressing "why the objections should be sustained or not" must also be submitted to the Court not less than five working days before trial at noon. After the court rules on the objections, the parties are to have the video and audio depositions (if any) edited accordingly so that any references to "objections" are deleted, and there is no dead space in either the video or audio presentation to the jury. In the case of a stenographic deposition, the offering party should arrange for someone (not court staff) to take the stand and read the part of the witness, using a question and answer format. The transcript should be read verbatim, without ad- libbing or over-dramatization. (4) Not less than five working days before trial at noon, the parties are to file their proposed Jury Instructions (which are unique to this case), suggested Special Interrogatories to the Jury (verdict form), and any requested voir dire questions. Judge Barbier does not require counsel to submit "boiler-plate" instructions, such as burden of proof, credibility of witnesses, etc. Typically, we will use the Fifth Circuit civil pattern charges, and add special instructions that pertain to the particular issues involved in the case. (5) Not less than five working days before trial at noon, the parties are to file any motions in limine (excluding Daubert motions, which are due earlier in accordance with the scheduling order). If you intend to oppose a motion in limine, you should contact chambers to advise that you will file an opposition, and clarify the deadline for such. (6) Not less than five working days before trial at noon, the parties are to file any trial memoranda, which are strictly optional. Such memoranda may set forth arguments regarding anticipated legal or evidentiary issues that may arise. (7) Not less than five working days before trial at noon, the parties are to exchange final "will call" witness lists so that arrangements may be made for their presence at trial. The parties should, in good faith, advise the Court and opposing counsel of the identities of witnesses that will be called to testify live at trial. (8) At the commencement of trial, counsel must provide the court's case manager with three copies of the final witness list. (9) The Court’s Case Manager is to be notified at least five working days prior to trial of any special equipment that will be needed by counsel during trial or if more than two tables will be needed to seat counsel. Additionally, it is highly recommended that counsel contact the Case Manager during the week prior to trial to schedule a meeting during which the Case Manager can instruct counsel or their staff on the use of the Court’s electronic trial equipment. This equipment will be necessary for the electronic presentation of exhibits. The Court will not operate the equipment for counsel during trial and will not give instruction on the use of equipment on the morning of trial. (10) Jury trials will commence at 8:30 a.m. unless otherwise ordered. Counsel should be present at least 30 minutes prior to the start of the trial in order to arrange their seating, set up their equipment, etc. If counsel have any preliminary matters that need to be brought to the court's attention, they should do so prior to the 8:30 a.m. start time. Counsel should insure that their witnesses are present so that the Court is not required to recess the jury trial due to the absence of a witness. If counsel have an issue with respect to scheduling of an expert's testimony, they should discuss this with the Court prior to instructing the expert as to when to appear. (11) Voir Dire and Jury Selection Judge Barbier will discuss these matters with counsel at the final pretrial conference.

=== Non-jury Trials ===

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SECTION "J" NON JURY TRIALS Unless otherwise ordered in a particular case, counsel should prepare for a non-jury trial as follows: (1) All exhibits will be presented by electronic means. Counsel may use a laptop or iPad to connect to the Court's electronic evidence system, either at counsel table or at the podium. There is also a document camera ("Elmo") contained in the podium. (2) Not less than five working days before trial, counsel should prepare and submit to the Court t one copy of a single Bench Book (joint bench book of all un-objected to exhibits. Duplicate exhibits should be eliminated. Excess or unnecessary pages should be eliminated. The Court will admit all un-objected to exhibits at the commencement of the trial. The bench book should contain: (a) An Index of all "un-objected to" exhibits, listing and numbering all exhibits sequentially and without reference to the offering party; (b) All un-objected to exhibits are to be included in the single Bench Book (with multiple volumes if necessary) with each exhibit tabbed, numbered, and paginated. Photographs of large exhibits and posters are to be included in the Bench Book. While oversized exhibits and posters may be used during trial, they will not be kept by the Case Manager. (c) A second volume, containing the "objected to" exhibits shall also be filed. ` These exhibits should be labeled by the offering party. Separate, but brief memoranda stating the reason for the objections and responding to the objections of other counsel must be submitted to the court by the offering party not less than five working days before trial at noon; counsel should bring sufficient copies of any “objected to” exhibits on the day of trial to insert into the “un-objected to” book if they are admitted by the Court over the objections. (d) Any discovery that will be used as an Exhibit must be specifically identified; for example, the exact Interrogatory and the corresponding Answer. (e) Each page of the Bench Book should be individually and sequentially Bates labeled. (f) Deposition transcripts should not be included as exhibits. Instead, the parties may simply offer a deposition in lieu of the witness appearing live. (3) By not less than five working days before trial at noon, the parties are to submit a hard copy of the entire transcript of any deposition (including video and audio depositions) which will be used in lieu of live testimony at Trial. If the parties do not seek to introduce the entire deposition, they should designate which portions they seek to introduce in a letter to the Court. All colloquy and objections (which can be resolved among the parties) are to be removed in the transcripts, video, and audio (if applicable). Any objections which cannot be worked out by the parties must be highlighted in the subject transcript and brief memoranda addressing "why the objections should be sustained or not" must also be submitted to the court by not less than five working days before trial at noon. After the court rules on the objections, the parties are to have the video and audio depositions (if any) edited accordingly so that any references to "objections" are deleted, and there is no dead space in either the video or audio presentation. Judge Barbier generally does not allow depositions to be read aloud or a video deposition to be played during a bench trial (except for purposes of impeachment). The judge will typically have read the depositions prior to commencement of the trial. (4) By not less than five working days before trial at noon, the parties are to file their proposed findings of fact and conclusions of law. Judge Barbier prefers a format consisting of short, separately numbered paragraphs. (5) Unless otherwise ordered, not less than five working days before trial at noon, the parties are to file any motions in limine (excluding Daubert motions, which are due earlier in accordance with the scheduling order). If you intend to oppose a motion in limine, you should contact chambers to advise that you will file an opposition, and clarify the deadline for such. In non-jury cases, the Court often may defer ruling on a motion in limine until the time of trial. (6) Not less than five working days before trial at noon, the parties are to file any pretrial memorandum of law, which are strictly optional. (7) Not less than five working days before trial at noon, the parties are to exchange final "will call" witness lists so that arrangements may be made for their presence at trial. The parties should, in good faith, advise the Court and opposing counsel of the identities of witnesses that will be called to testify live at trial. (8) At the commencement of trial, counsel must provide the Court's case manager with three copies of their final witness lists. (9) The Court’s Case Manager is to be notified at least five working days prior to trial of any special equipment that will be needed by counsel during trial or if more than two tables will be needed to seat counsel. Additionally, it is highly recommended that counsel contact the Case Manager during the week prior to trial to schedule a meeting during which the Case Manager can instruct counsel or their staff on the use of the Court’s electronic trial equipment. This equipment will be necessary for the electronic presentation of exhibits. The Court will not operate the equipment for counsel during trial and will not give instruction on the use of equipment on the morning of trial. (10) Bench Trials commence at 8:00 a.m. unless otherwise ordered. Counsel should insure that their witnesses are present so that the Court is not required to recess the trial due to the absence of a witness.