Preparation for Civil Trials; Preparation for Criminal Trials; PDF Format; Stock Civil Jury Instructions

=== Preparation for Civil Trials ===

PREPARATION FOR TRIAL BEFORE THE HONORABLE KAREN B. MOLZEN Trial Counsel, your compliance with the following is required: A. 1. 2. 3. 4. 5. 6. 7. 8. 9. GENERAL TRIAL PREPARATION Be on time for each court session. Trial engagements take precedence over any other business. If you have matters in other courtrooms, make other arrangements in advance for the handling of such matters. A multi-day jury trial will recess at about 5:00 p.m. No recess to locate a missing witness will be allowed, unless the witness has been timely subpoenaed. Clients and witnesses are to be on time. Stand when you speak. Do not refer to any party or attorney by their first name. Always use surnames. Do not argue with opposing counsel in the presence of the jury. In opening statement, present a concise summary of the facts. Do not argue the facts nor discuss law. Do not describe in detail what particular witnesses will say. The time for opening statement will be limited. When you object in the presence of the jury, make it short and to the point. Speaking objections will not be allowed. Cite the Rule of Evidence or common designation for your objection (e.g., hearsay). Do not argue the merits of your objection in the presence of the jury. Do not argue the ruling in the presence of the jury. Stand a respectful distance from the jury at all times. Parties should notify the Court at least two weeks in advance of trial if they require audio-visual or other special equipment. Parties are responsible for operating any of this equipment. Throughout these instructions, the term “trial” refers to the initial jury selection date. Counsel must seek leave of the Court in the form of a written motion to extend any pretrial deadline. 10. Where a submission deadline falls on a holiday, the deadline becomes the next working day after the holiday. Exhibits 1. On or before TWENTY (20) calendar days before trial, counsel for each party shall exchange exhibits, with copies for the Court pursuant to these instructions, and provide to opposing counsel and file with the Court a proposed exhibit list. IN ORDER TO MAINTAIN EFFICIENCY AND ORGANIZATION OF THE COURT’S RECORD OF THE PARTIES’ NUMEROUS EXHIBITS DURING TRIAL, PARTIES SHALL USE THE FORMAT, INCLUDED AT THE END OF THIS DOCUMENT, WHEN FILING THEIR FINAL EXHIBIT LISTS WITH THE COURT PRIOR TO TRIAL. Charts, plats, diagrams, etc. will be marked and ready as to measurements, landmarks, and other identifying factual material before trial. Counsel are strongly encouraged to stipulate to exhibits wherever possible, particularly regarding their authenticity. 2. Exhibits shall be marked and identified (Plaintiff’s on yellow labels by numbers and 3. 4. 1. 2. 3. 1. 2. 3. Defendant’s on blue labels by letters, e.g., A, B, C, . . . AA, AB, AB, . . . ) Parties are encouraged to use courtroom technology to display exhibits to the jurors. However, two (2) sets of exhibit notebooks (Joint and/or Plaintiff’s and Defendant’s) should be provided for the Court. The Court’s exhibits should be provided TWENTY (20) calendar days before trial. TEN (10) calendar days before trial, counsel for each party shall file with the Clerk a complete list of all objections to the exhibits offered, specifying the Rule of Evidence or other legal authority upon which an objection is based. Witnesses Furnish a complete list of witnesses in the order to be called to opposing counsel and file with the Clerk no later than TWENTY (20) calendar days before trial, in conformance with the Pretrial Order. This list shall include designation of any depositions to be used at trial. Clients and witnesses are expected to be on time, and counsel should always have witnesses available to fill a full trial day (i.e., 8:30 a.m. – 5:00 p.m.). Counsel who do not have a witness available may be penalized. All expert reports must have been exchanged in advance in accordance with Rule 26(a)(2) of the Federal Rules of Civil Procedure. As in other areas, cumulative expert testimony will not be permitted. Challenges pursuant to Daubert shall be made prior to the dispositive motions deadline; that is: Daubert motions are to be fully briefed no later than the date designated as the dispositive motions deadline. Depositions Consistent with the Federal Rules of Civil Procedure, depositions may be introduced into evidence. Designations of deposition testimony to be read at trial shall be provided to opposing counsel and filed with the Court no later than TWENTY (20) calendar days before trial, together with the parties’ witness lists. Objections to the use of deposition testimony are due FOURTEEN (14) calendar days before trial. The parties must confer about any disputes and, if unable to resolve their differences, must notify the Court in writing at least FIVE (5) calendar days before trial. If a deposition is used in part, counsel shall mark the parts to be used for opposing counsel. The court copy shall be marked. Plaintiff will use yellow highlighting and Defendant shall use blue highlighting. This does not apply to cross-examination or rebuttal. Memoranda of Law Trial briefs outlining the basic legal theories, anticipated evidence in support of such theories, and the legal basis of any anticipated evidentiary disputes may be filed with the Clerk at least SEVEN (7) calendar days before trial. 2 Joint Statement of the Case The parties shall submit a brief joint statement of the case FOURTEEN (14) calendar days before trial, to be submitted together with proposed jury instructions. Non-Jury Trials: Proposed Findings of Fact and Conclusions of Law Parties are to file proposed Findings of Fact and Conclusions of Law at least TEN (10) working days before trial, or in the case of a trailing docket, at least ten (10) working days before the trailing docket is set to begin, with references to exhibits and expected testimony. Jury Trials 1. 2. 3. JURY INSTRUCTIONS: Jury Instructions shall be submitted to the Court FOURTEEN (14) days before trial in accordance with the section herein entitled “Preparation of Jury Instructions.” VOIR DIRE: In the average case, each counsel will be permitted TWENTY (20) minutes to voir dire the venire panel. Do not argue the case or cite legal principles in your voir dire. Requested voir dire shall be exchanged between counsel and filed with the Clerk’s Office at least TEN (10) calendar days before trial. If counsel cannot agree on proposed voir dire, any objections must be brought to the Court’s attention at least FIVE (5) calendar days prior to jury selection. MOTIONS IN LIMINE: Motions in Limine shall be filed no later than FOURTEEN (14) calendar days before trial for ruling. Responses are due TEN (10) calendar days before trial. If a motion in limine is filed earlier than FOURTEEN (14) days before trial, the response is due FIVE (5) days after the motion is served. Replies to Motions in Limine will not be entertained unless specifically requested and allowed. B. PREPARATION OF JURY INSTRUCTIONS Prepare your proposed Jury Instructions in accordance with these directions. File the proposed jury instructions with citations with the Clerk’s office in accordance with D.N.M. LR-Cv 5.1 at least FOURTEEN (14) days before trial is scheduled. 1. 2. 3. 4. Parties shall meet and confer in advance of the deadline to agree on as many instructions as possible. PARTIES SHALL SUBMIT A SET OF MUTUALLY ACCEPTABLE JURY INSTRUCTIONS ON THE SUBSTANTIVE CLAIMS OR BE PREPARED TO SUBMIT A LEGAL BASIS FOR THEIR OBJECTIONS AS TO EACH INSTRUCTION ON WHICH THEY DO NOT AGREE. Parties shall file written objections to opposing party’s submitted instructions. Objections are due THREE (3) working days after jury instructions are due. The Joint Statement of the Case should be submitted at the same time the jury instructions are submitted, but should be filed separately. A proposed Verdict Form should also be submitted at the same time as the jury instructions and may be filed together with the jury instructions. As with the jury instructions, the parties shall meet and confer to reach a mutually agreeable verdict form, or be prepared to submit a legal basis for their objection to the opposing party’s submitted verdict form. 3 5. 6. 7. 8. Plaintiff and Defendant shall each file a numbered, annotated set of requested jury instructions at least FOURTEEN (14) calendar days before trial. IN ADDITION TO ELECTRONICALLY FILING THEIR SUBMISSIONS REGARDING JURY INSTRUCTIONS, Plaintiff and Defendant shall submit to the Court through its email address ([email protected]) the following: (1) the requested jury instructions; (2) proposed verdict forms; (3) the parties’ Joint Statement of the Case; and (4) ALL objections to the aforementioned categories. The first three documents must be submitted in Microsoft Word format. Jury instructions without citations are no longer needed. Parties should not submit stock instructions. Instead, refer to the Court’s approved set of stock instructions, available on the chambers web page under “Stock Civil Jury Instructions.” Parties should include a separate page with a list of requested stock instructions as each is described on the web site. 9. Submit no more than one instruction per page. 10. Carefully proofread each instruction for errors in spelling, grammar, punctuation and citations, and for unintended deviations from pattern instructions used as sources. 11. Submit a cover sheet on all sets of instructions. 4 TRIAL DEADLINES - CHECKLIST 20 calendar days before trial Exchange exhibits, provide copies of exhibits to the Court, and file proposed exhibit lists. Furnish complete list of witnesses in the order to be called to opposing counsel and the Court. This list shall include designation of any depositions to be used at trial. 14 calendar days before trial Submit mutually agreeable Joint Statement of the Case to [email protected]. File proposed jury instructions and verdict form, with annotations, in accordance with section entitled “Preparation of Jury Instructions” within Judge Molzen’s trial preparation materials. Jury instructions should also be submitted to [email protected]. Written objections to submitted jury instructions are due THREE (3) working days after jury instructions are due. Motions in Limine must be filed. 10 calendar days before trial File any objections to the opposing party’s proposed use of deposition testimony. This list should also be submitted to [email protected]. File complete list of all objections to exhibits offered, specifying Rule of Evidence or other legal authority on which each objection is based. This list should also be submitted to [email protected]. For non-jury trials: file proposed Findings of Fact and Conclusions of Law, with references to exhibits and expected testimony. Exchange proposed voir dire with counsel and file same with the Court. Responses to any Motions in Limine are due. Replies will not be entertained unless specifically requested or allowed. 7 calendar days before trial Counsel are permitted to file Memoranda of Law. 5 calendar days before trial Notify the Court of any continuing disputes regarding the use of deposition testimony. Notify the Court of any continuing disputes regarding voir dire. 5 WITNESS/EXHIBIT LIST [INSERT NAME OF PARTY SUBMITTING EXHIBITS] Presiding Judge: Karen B. Molzen Ct Reporter: [PARTY] v. [PARTY], CIV XX-XXXX Clerk/CRD: Pltf. No. Def. Ltr. Witness Date Off. Obj. Adm. Description of Exhibit 6

=== PDF Format ===

EXHIBIT LIST CASE NO. ______________________________ _______________________ vs. __________________________ Hon. Karen B. Molzen, Presiding EXHIBIT DATE 2007 PLF NO. DFT LTR WITNESS DESCRIPTION OF EXHIBIT O A OBJ OFFERED ADMITTED Page ________ of ________

=== Stock Civil Jury Instructions ===

HOW TO USE JUDGE MOLZEN'S STOCK INSTRUCTION PACKETS CIVIL STOCK INSTRUCTIONS These general instructions were modified in chambers using the 5th Circuit Pattern Criminal Instructions as a template. Judge Molzen has some initial instructions to the jury prior to beginning the opening statement which are not included here. "Stock" Instructions # 1 - 7, and 8 and 8A (if appropriate) are given just before the closing arguments begin. The final instruction # 9 is given immediately after closing argument and just before the jury retires to deliberate. If a special verdict is appropriate, the # 9 instruction will be modified to reflect that. You should not submit proposed instructions on the matters already covered by these stock instructions unless you have some specific objection. Rather, please focus your efforts in developing the more specific proposed instructions covering the elements of the claims, defenses and damages. Rev. 6/14/00 INSTRUCTION NO. 1 Members of the Jury: In any jury trial there are, in effect, two judges. I am one of the judges; the other is the jury. It is my duty to preside over the trial and to decide what evidence is proper for your consideration. It is also my duty at the end of the trial to explain to you the rules of law that you must follow and apply in arriving at your verdict. First, I will give you some general instructions which apply in every case, for example, instructions about burden of proof and how to judge the believability of witnesses. Then I will give you some specific rules of law about this particular case, and finally I will explain to you the procedures you should follow in your deliberations. Rev. 6/14/00 INSTRUCTION NO. 2 You, as jurors, are the judges of the facts. But in determining what actually happened - that is, in reaching your decision as to the facts - it is your sworn duty to follow all of the rules of law as I explain them to you. You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences. It is also your duty to base your verdict solely upon the evidence, without prejudice or sympathy. That was the promise you made and the oath you took before being accepted by the parties as jurors, and they have the right to expect nothing less. Rev. 6/14/00 INSTRUCTION NO. 3 It is a general rule in civil cases that a party seeking a recovery or a party relying upon a defense has the burden of proving every essential element of its claim or defense by the greater weight of the evidence. To prove by the greater weight of the evidence means to establish that something is more likely true than not true. When I say in these instructions that a party has the burden of proof, I mean that you must be persuaded that what is sought to be proved is more probably true than not true. Evenly balanced evidence is not sufficient Rev. 6/14/00 INSTRUCTION NO. 4 As I told you earlier, it is your duty to determine the facts. In doing so, you must consider only the evidence presented during the trial, including the sworn testimony of the witnesses and the exhibits. Remember that any statements, objections, or arguments made by the lawyers are not evidence. The function of the lawyers is to point out those things that are most significant or most helpful to their side of the case, and in so doing to call your attention to certain facts or inferences that might otherwise escape your notice. In the final analysis, however, it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding upon you. Also, do not assume from anything I may have done or said during the trial that I have any opinion concerning any of the issues in the case. Except for the instructions to you on the law, you should disregard anything I may have said during the trial in arriving at your own findings as to the facts. Rev. 6/14/00 INSTRUCTION NO. 5 While you should consider only the evidence, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified in the light of common experience. In considering the evidence, you may make deductions and reach conclusions which reason and common sense lead you to make; and you should not be concerned about whether the evidence is direct or circumstantial. "Direct evidence" is the testimony of one who asserts actual knowledge of a fact, such as an eye witness. "Circumstantial evidence" is indirect evidence that is proof of circumstances that tend to prove or disprove the existence or nonexistence of certain other facts. The law makes no distinction between the weight you may give to either direct or circumstantial evidence. Rev. 6/14/00 INSTRUCTION NO. 6 I remind you that it is your job to decide the facts in this case. In doing so, you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate. You are the sole judges of the credibility or "believability" of each witness and the weight to be given the witness's testimony. An important part of your job will be making judgments about the testimony of the witnesses who testified in this case. You should decide whether you believe what each person had to say, and how important that testimony was. In making that decision I suggest that you ask yourself a few questions: Did the person impress you as honest? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome of the case? Did the witness have any relationship with either a plaintiff or a defendant? Did the witness seem to have a good memory? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness's testimony differ from the testimony of other witnesses? These are a few of the considerations that will help you determine the accuracy of what each witness said. In making up your mind and reaching a verdict, do not make any decisions simply because there were more witnesses on one side than on the other. Do not reach a conclusion on a particular point just because there were more witnesses testifying for one side on that point. Your job is to think about the testimony of each witness you have heard and decide how much you believe of what each witness had to say. Rev. 6/14/00 INSTRUCTION NO. 7 The testimony of a witness may be discredited by showing that the witness testified falsely concerning a material matter, or by evidence that at some other time the witness said or did something, or failed to say or do something, which is inconsistent with the testimony the witness gave at this trial. Earlier statements of a witness were not admitted in evidence to prove that the contents of those statements are true. You may consider the earlier statements only to determine whether you think they are consistent or inconsistent with the trial testimony of the witness and therefore whether they affect the credibility of that witness. If you believe that a witness has been discredited in this manner, it is your exclusive right to give the testimony of that witness whatever weight you think it deserves. Rev. 6/14/00 INSTRUCTION NO. 8 Although there is more than one plaintiff in this action, it does not follow from that fact alone that if one is entitled to recover, another is entitled to recover. The rights of the various plaintiffs in this lawsuit are separate and distinct, and you should decide the issues as if each plaintiff had brought a separate lawsuit. Rev. 6/14/00 INSTRUCTION NO. 8A Although there is more than one Defendant in this action, it does not follow that if one is liable, all are liable. Each Defendant is entitled to a fair consideration of that Defendant's own defense, and is not to be prejudiced by the fact, if it should become a fact, that you find against another. Unless otherwise stated, all instructions given apply to the case against each Defendant. Rev. 6/14/00 INSTRUCTION NO. 9 To reach a verdict, all of you must agree. Your verdict must be unanimous. Your deliberations will be secret. You will never have to explain your verdict to anyone. It is your duty to consult with one another and to deliberate in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to reexamine your own opinions and change your mind if convinced that you were wrong. But do not give up your honest beliefs as to the weight or effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Remember at all times, you are judges-- judges of the facts. Your sole interest is to seek the truth from the evidence in the case, to decide the facts in this case. When you go to the jury room, the first thing that you should do is select one of your number as your foreperson, who will help guide your deliberations and will speak for you here in the courtroom. A form of verdict has been prepared for your convenience. The foreperson will indicate the unanimous answer of the jury in the spaces provided. At the conclusion of your deliberations, the foreperson should date and sign the verdict. If you need to communicate with me during your deliberations, the foreperson should write the message, sign it and give it to the marshal. I will either reply in writing or bring you back into the court to answer your message. Bear in mind that you are never to reveal to any person, not even the Court, how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict. Retain the verdict form until I ask you for it here in the courtroom. Rev. 6/14/00