Settlement Conference; Voir Dire Questions (Civil); Voir Dire Questions (Criminal)

=== Settlement Conference ===

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION _______________________________________________________ INSTRUCTIONS FOR SETTLEMENT CONFERENCE FOR CASES ASSIGNED TO U.S. DISTRICT JUDGE PHILIP P. SIMON _______________________________________________________ Over 95% of all civil suits are settled prior to trial. For those cases that can be resolved through settlement, early consideration of settlement can allow the parties to avoid unnecessary litigation as well as the substantial cost, expenditure of time, distraction and anxiety that are typically part of the litigation process. Even for those cases that cannot be resolved through settlement, early consideration of settlement can allow the parties to better understand the factual and legal nature of their dispute and thus focus the issues to be litigated. If a civil case has been settled, the courtroom deputy must be notified promptly. Jury costs will be assessed for failure to inform the courtroom deputy of a settlement until the day of trial. At the final pretrial conference, the Court will conduct a settlement conference in all civil cases to be tried to a jury. However, the Court encourages the parties to discuss settlement well before that time and the Court is always willing to hold a settlement conference at any time that the parties feel that it would be productive. Given the importance of settlement, and the fact that it is by settlement that the vast majority of cases are resolved, settlement preparation should be treated as seriously as trial preparation. Set forth below are the procedures that the Court will require the parties to follow in preparing for the settlement conference and the procedures that the Court typically will employ in conducting the conference. For many clients, this will be the first time they have participated in a court-supervised settlement conference. Counsel are directed to provide a copy of these instructions to their clients and to discuss the procedures with them in advance of the conference. Any party who wishes to vary any of the procedures described in these instructions should make an appropriate request to the Court prior to the exchange of settlement letters described below. 1. Pre-conference demand and offer. Settlement conferences are more likely to be productive if the parties have previously exchanged demands and offers and have made a good faith effort to settle the case on their own. Accordingly, at least fourteen days before the settlement conference, the plaintiff shall submit a written itemization of damages and a settlement demand to the defendant. No later than seven days before the settlement conference, the defendant shall submit a written offer to the plaintiff. On occasion, this process will lead directly to a settlement. If settlement is not reached, the parties shall furnish copies of the letters, along with any settlement memoranda they wish the Court to consider, to Judge Simon’s chambers e-mail box ([email protected]) no later than 2 business days before the settlement conference. The letters and settlement memoranda are not to be filed with the Clerk. 2. 3. 4. Attendance of parties required. Parties with ultimate settlement authority must be personally present at the settlement conference, unless otherwise ordered by the Court. This means that if a party is an individual, that individual must personally attend; if a party is a corporation or governmental entity, a representative of the corporation or governmental entity who is authorized to negotiate and who has full settlement authority must personally attend; if a party requires approval by an insurer to settle, then a representative of the insurer who is authorized to negotiate and who has full settlement authority must attend. Having a client with authority available by telephone is not an acceptable alternative, except under the most extenuating circumstances (the purchase of an airplane ticket is not an extenuating circumstance). The Court sets aside a significant amount of time for each settlement conference and believes that it is impossible for a party who is not present to appreciate fully the process and the reasons that may justify a change in one’s perspective towards settlement. Conference format. The Court generally will separate the parties into different conference rooms. The Court will then engage in private meetings with the parties, alternating between the sides. The Court expects both the lawyers and the party representatives to be fully prepared to participate in the discussions and meetings. In these discussions, the Court encourages all parties to be willing to reassess their previous positions and to be willing to explore creative means for resolving the dispute. Statements inadmissible. Any statements made by any party or attorney during the settlement conference will be inadmissible at trial. To the extent the parties are engaged in face-to-face discussions, the Court expects the parties to address each other with courtesy and respect but at the same time strongly encourages the parties to be frank and open in their discussions. 5. Issues to be discussed at settlement conference. Parties should be prepared to discuss the following issues at the settlement conference: a. What are your objectives in the litigation? b. What issues (in and outside of this lawsuit) need to be resolved? c. What are the strengths and weaknesses of your case? d. Do you understand the opposing side’s view of the case? What is wrong with their perception? What is right with their perception? e. What are the points of agreement and disagreement between the parties (both factual and legal)? f. What are the impediments to settlement? 2 g. What remedies are available through litigation or otherwise? h. Are there possibilities for a creative resolution of the dispute? i. Do you have adequate information to discuss settlement? If not, how will you obtain sufficient information to make a meaningful settlement discussion possible? j. Are there outstanding liens? Do we need to include a representative of the lienholder? 3

=== Voir Dire Questions (Civil) ===

VOIR DIRE EXAMINATION You have been summoned as prospective jurors in a civil case wherein (name plaintiff) is the plaintiff and (name defendant) is the defendant. This case concerns (BRIEF DESCRIPTION OF THE CASE AS AGREED TO BY THE PARTIES) . The plaintiff is represented by _________________. Will you please introduce the people seated at counsel's table. The defendant is represented by ______________. Will you please introduce the people seated at counsel's table. Questions to the Individual Jurors Now we need to know something about the jurors, so beginning with the first juror, will you please, in a loud voice, state your name. 1. In what city or town do you live? 2. What is your occupation? a. What are your duties at that job? b. How long have you been employed at that company? c. Have you had any supervisory responsibilities at this job? d. Are you a member of a union, and if so, do you have any leadership position in that organization? 3. Are you married? a. What is your spouse's occupation? b. What are your spouse's responsibilities at that job? 4. Do you have any children? What are their occupations? 5. How long have you lived in Indiana? 6. What is your educational background? 7. How many members are in your immediate family? 8. Do you belong to any clubs or organizations? 9. What kind of magazines or newspapers do you read? 10. What do you like to do in your spare time? 11. If selected as a juror, will you be able to render a verdict solely on the evidence presented and the law as given to you by the court? 12. Do you know of any reason whatsoever why you cannot sit as a fair and impartial juror in this case? Questions to all Jurors The trial in this case will take more than _______ days. Many witnesses will be called. In any jury trial, evidence is introduced in a piecemeal fashion. Can you keep an open mind until all the evidence is introduced and you have heard the final instructions of the court and arguments of counsel? During your deliberations you are required to listen to and consider the opinions of your fellow jurors and reassess your own opinions in an effort to reach a verdict. However, your vote must be based upon your own good faith opinion and not merely to reach a verdict. Do you have any problems with that? [Do you understand that this is a civil trial and thus the burden of proof is by a preponderance of the evidence and not proof beyond a reasonable doubt?] Questions to the Entire Panel My following questions are for the entire venire and I ask those of you seated in the jury box to raise your hand if your answer to any of my questions is "Yes." I would ask those perspective jurors who are seated in the spectator section to please listen carefully to the questions that are about to be asked, because in all likelihood many of you will be called before this morning is through. Questions relating to this lawsuit 1. Has anyone talked with any of you about this case, or discussed this case in your presence? 2. Have any of you formed or expressed an opinion as to the merits of this case? Is that opinion based upon what you have read in newspapers or heard on the radio (or seen on television)? -2- Would any of you not be able to set aside such an opinion and render a fair and impartial verdict based solely upon the evidence presented and the law as given to you by the court? 3. Is any juror familiar with the facts of this particular case? Will this fact prevent you from rendering a fair and impartial verdict based solely upon the evidence presented and the law as given to you by the court? 4. Are any of you related by blood or marriage to the plaintiff? 5. Are any of you related by blood or marriage to the defendant? 6. Do any of you personally know the defendant _____________? The plaintiff __________? 7. Are any of you related by blood or marriage to any of the attorneys appearing in this case? 8. Have you, or members of your immediate family, ever been represented by any of the attorneys in this case or been involved in any matter in which any of these attorneys were involved? 9. Does anyone know, on a personal basis, any of the attorneys appearing in this case? 10. Has any juror ever been employed by (plaintiff or defendant company) ? Has any member of your family ever been employed by (the plaintiff or defendant company) ? 11. Do any of you have a personal interest in the result of this trial? 12. Has any juror ever been involved in a situation similar to the matter before the court today? 13. Do you know any of the following persons who may be called to testify in this case? [Read Witness List From Pretrial Order] 14. The incident involved in this lawsuit occurred at ______________. Are any of you familiar with that location? [Here ask questions relating to specific case] -3- General Background 1. Is there anyone who cannot read, write or speak the English language? 2. Is there anyone who cannot hear or see well? 3. Is there anyone here with any health problems that will interfere with their ability to serve as a juror? 4. Is there any juror who will be unduly burdened with financial, business, family or medical problems if the trial in this case requires as many as ___ days to try? 5. If any of you, or members of your immediate family, have previously served on a jury of any kind, either in federal or state court, would you please raise your hand? a. Was the case civil or criminal? b. What were the facts of that case? c. What was your verdict? d. Were you the jury foreman? e. Do you understand that each case must be decided upon the facts introduced into evidence at trial and the law as read in the final instructions? f. Was there anything about the prior jury experience which would interfere with giving both parties a fair trial in this case? 6. Has any juror ever been injured in an accident of any kind? 7. Has any member of your immediate family ever been injured in an accident of any kind? a. What kind of injuries did he or she sustain? b. Was there any permanent injury? c. Has he or she recovered? d. Is he or she back to work? e. Was there a lawsuit filed? 8. Do you, or does any member of your family, have any physical impairment or defect which might affect your judgment in this case? 9. Have your or any member of your immediate family ever had a claim against anyone -4- for damages? 10. Has anyone ever had a claim for damages against you or a member of your immediate family? a. What kind of claim? b. What did it involve? c. Was this claim compromised or settled out of court, or did the matter go to trial? d. Would that fact influence you in any way in reaching a verdict in this case? e. Were you satisfied with the outcome of this claim? 11. Have any of you ever testified as a witness in any court? 12. Would the fact that this case involves a claim by an individual against a corporation so influence you that you could not be fair and impartial in deciding the issues involved in this case? 13. Have any of you jurors, or any members of your immediate families, ever been employed in any capacity in the insurance business or as an investigator or adjuster for any claims agency? 14. Do any of you, or any members of your immediate family, have any special legal training either from educational courses or an occupation? 15. Do any of you, or any members of your immediate family, have any special medical training, either from educational courses or in your occupation? 16. Do you know of any reason why you may be prejudiced for or against the plaintiff of for or against the defendant because of the nature of this particular case or otherwise? 17. If you are selected as a juror in this case, you will be required to put aside any feeling of passion or prejudice and decide this case solely on the evidence introduced during the trial and the instructions that the court will give you concerning the law. Is there anyone unable or unwilling to do that? 18. If you were the plaintiff or the defendant in this case, do you know of any reason why you would not be content to have this case tried to someone in your frame of -5- mind? Questions to Individual Jurors 1. If you are selected to sit as a juror in ths case will you be able or willing to render a verdict solely on the evidence presented during the trial and the law as given to you by the court? 2. Do you know of any reason whatsoever why you cannot sit as a fair and impartial juror in this case? [Counsel may submit any additional questions. Ask additional questions and follow up questions.] [Ask counsel to submit challenges.] [After challenges have been made, advise jury:] The questions that I have asked are not designed to pry into your personal affairs but to discover if you have any preconceived opinions which you cannot lay aside, or if you have had any experience in your personal or family life that might cause you to strongly identify with either the plaintiff or the defendant. These questions are necessary to assure an impartial jury. All of us come from varying backgrounds when you consider our families, education, occupations and other experiences during our lifetimes. These varying backgrounds cause all of us to have opinions, beliefs and sometimes prejudices which may create the impression that someone may not be impartial or completely open-minded in this particular case. Although this impression may be incorrect, the law allows each party to a lawsuit to excuse a limited number of prospective jurors in an effort to select a jury which the parties feel will be fair to both sides. You should not be concerned if you are excused from service on a particular jury. Being excused from service is in no way a reflection upon a prospective juror's character or ability. Being excused from service today does not mean that you may not be selected to serve later in another case. -6- [If any juror is excused, the venireman who replaces him should be asked:] 1. Did you hear and pay close attention to the questions I asked of the other jurors? 2. If I asked you those same questions, would you have answered yes to any of them? 3. If yes, which one(s)? 4. Have you heard of this case before? 5. Have you, or members of your immediate family, previously served on a jury of any kind, either in federal or state court? 6. Do any of you know of any of the participants in this case, including the parties, the attorneys, or any witnesses which I previously mentioned? 7. In what city or town do you live? 8. What is your occupation? a. What are your duties at that job? b. How long have you been employed at that company? c. Have you had any supervisory responsibilities at this job? Union? 9. Are you married? a. What is your spouse's occupation? b. What are your spouse's responsibilities at that job? 10. Do you have any children? What are their occupations? 11. How long have you lived in Indiana? 12. What is your educational background? 13. How many members are in your immediate family? 14. Do you belong to any clubs or organizations? 15. What kind of magazines or newspapers to you read? 16. What do you like to do in your spare time? 17. If selected as a juror, will you be able to render a verdict solely on the evidence presented and the law as given to you by the court? 18. Do you know of any reason whatsoever why you cannot sit as a fair and impartial juror in this case? -7- [After jury is accepted by both sides] Both sides having accepted the jury, the jurors will please stand, raise your right hands, and be sworn to try this case. Will the clerk please swear in the jury. To the unchosen venireman: I want to thank the rest of you for coming this morning. As you can see, we are never sure just exactly how many jurors we are going to need. I do want to thank you for being here, ready to serve. If you need work slips, the Clerk's office will take care of that immediately. -8-

=== Voir Dire Questions (Criminal) ===

GENERAL CRIMINAL VOIR DIRE Questions to the Individual Jurors Now we need to know something about the jurors, so beginning with the first juror, will you please, in a loud voice, state your name. 1. In what city or town do you live? 2. What is your occupation? a. What are your duties at that job? b. How long have you been employed at that company? c. Have you had any supervisory responsibilities at this job? d. Are you a member of a union, and if so, do you have any leadership position in that organization? 3. Are you married? a. What is your spouse's occupation? b. What are your spouse's responsibilities at that job? 4. Do you have any children? What are their occupations? 5. How long have you lived in Indiana? 6. What is your educational background? 7. How many members are in your immediate family? 8. Do you belong to any clubs or organizations? 9. What kind of magazines or newspapers do you read? 10. What do you like to do in your spare time? 11. If selected as a juror, will you be able to render a verdict solely on the evidence presented and the law as given to you by the court? 12. Do you know of any reason whatsoever why you cannot sit as a fair and impartial 1 juror in this case? Questions to all Jurors The trial in this case will take more than _______ days. Many witnesses will be called. In any jury trial, evidence is introduced in a piecemeal fashion. Can you keep an open mind until all the evidence is introduced and you have heard the final instructions of the court and arguments of counsel? During your deliberations you are required to listen to and consider the opinions of your fellow jurors and reassess your own opinions in an effort to reach a verdict. However, your vote must be based upon your own good faith opinion and not merely to reach a verdict. Do you have any problems with that? Questions to the Entire Panel My following questions are for the entire venire and I ask those of you seated in the jury box to raise your hand if your answer to any of my questions is "Yes." I would ask those perspective jurors who are seated in the spectator section to please listen carefully to the questions that are about to be asked, because in all likelihood many of you will be called before this morning is through. 1. Has anyone talked with any of you about this case, or discussed this case in your presence? 2. Have any of you formed or expressed an opinion as to the merits of this case? Is that opinion based upon what you have read in newspapers or heard on the radio (or seen on television)? Would any of you not be able to set aside such an opinion and render a fair and impartial verdict based solely upon the evidence presented and the law as given to you by the court? 3. Is any juror familiar with the facts of this particular case? Will this fact prevent you from rendering a fair and impartial verdict based solely upon the evidence presented and the law as given to you by the court? 2 4. Do any of you know any of the Defendants? If so: In what capacity? Would your knowledge of prevent you from acting with complete impartiality in this case? Would you knowledge of cause you to give greater weight to any statement that he might make in this case by reason of such knowledge? 5. 6. 7. Are any of you related to any of the attorneys appearing in this case? Have you, or members of your immediate family, ever been represented by any of the attorneys in this case? Does anyone know, on a personal basis, any of the attorneys appearing in this case? 8. Is there anyone who cannot read, write or speak the English language? 9. Is there anyone who cannot hear or see well? 10. Is there anyone here with any health problems that will interfere with their ability to serve as a juror? 11. Is there any juror who will be unduly burdened with financial, business, family or medical problems if the trial in this case requires as many as ___ days to try? 12. If any of you, or members of your immediate family, have previously served on a jury or grand jury, either in federal or state court, would you please raise your hand? a. Was the case civil or criminal? b. What were the facts of that case? c. What was your verdict? d. Were you the jury foreman? e. Do you understand that each case must be decided upon the facts introduced into evidence at trial and the law as read in the final instructions? f. Was there anything about the prior jury experience which would interfere with giving both parties a fair trial? 3 13. 14. 15. 16. 17. Do you, or does any member of your family, have any physical impairment or defect which might affect your judgment in this case? Have any of you ever testified as a witness in any court? Do any of you, or any members of your immediate family, have any special legal training either from educational courses or an occupation? Do you know of any reason why you may be prejudiced for or against the government or for or against the defendant because of the nature of this particular case or otherwise? Do you know any of the following persons who may be called to testify in this case? [Read Witness List] IF SO: What do you know or what have you heard? How do you know them? 18. There may be law enforcement officers and other government agents who testify in this case. Would any of you have any difficulty giving testimony by law enforcement officers and government agents the same weight and consideration you would give the testimony of other witnesses? 19. Have any of you ever been acquainted with any law of any type whatsoever? If so: enforcement officers Who? What department did they work for? What relationship did you have with them? Would that fact prevent you from acting with impartiality in this case? 20. Have any of you or has anyone close to you had any difficulty with the law? If so: 4 When? What kind of difficulty? What law enforcement agency was involved? Will that experience effect your approach to this case? Will that experience affect your ability to be fair and impartial to both parties in this case? 21. Have any of you ever had experiences with law enforcement officers or government agents which would cause you to be prejudiced either for or against the government or the defendant in this case? If so: When? What happened? Is there anything about that experience that would prevent you from acting with impartiality in this case? 22. 23. This case is being prosecuted by the United States attorney’s Office for the Northern District of Indiana. Have any of you had any prior dealings with the federal government or the United States Attorney’s Office in particular that might affect you ability to be fair and impartial to the government? If you are selected to sit on this case, you will be required to put aside any feeling of passion or prejudice and decide this case solely on the evidence presented at the trial and in the context of the law as I will give it to you in my instructions, disregarding any other ideas, notions or beliefs about the law that you may have. Is there anyone unable or unwilling to do that? 24. Have any of you ever been involved, in any court, in a criminal matter that concerned yourself, any member of your family, or a close friend either as a defendant, a witness, or a victim? IF SO: When? What happened? Do you feel that this experience would prevent you from acting with impartiality in this case? 5 25. 26. 26a. 27. 28. 29. Do any of you know of any reason why you may be prejudiced for or against the government or the defendant because of the nature of the charges? Is there anything at all about the criminal charges at issue in this case that would make you prejudiced against someone who is merely accused of it? [if drug case – ask]: Have you had any experience involving yourself, any member of your family, or any close friend that relates to the use or possession of illegal drugs? If so: When? What happened? Do you feel that this experience would prevent you from acting with impartiality in this case? Do any of you have any problems or reservations about the rule of law which requires you to presume the innocence of the defendant throughout the trial and that the government must prove the defendant guilty beyond a reasonable doubt? If you are selected as a juror in this case, you will be required to put aside any feeling of passion or prejudice and decide this case solely on the evidence introduced during the trial and the instructions that the court will give you concerning the law. Is there anyone unable or unwilling to do that? If you were the defendant or if you were the Assistant United States attorney prosecuting this case, do you know of any reason why you would not be content to have this case tried to someone in your frame of mind? [INSERT QUESTIONS SUBMITTED BY THE PARTIES – IF APPROPRIATE] [ASK COUNSEL TO APPROACH THE BENCH – EITHER ALLOW THEM TO ASK FOLLOW UP QUESTIONS OR TO SUBMIT QUESTIONS FOR THE COURT TO ASK] 6