CIVIL TRIAL RULES
J. WILLIAM McLAFFERTY, JUDGE
[Effective September 2, 2002]
Prior to any master calendar call, all trial counsel must meet
and confer to
(1) prepare a neutral statement of the case
to be read to the prospective jury panel before voir dire;
(2) prepare a single witness list including all prospective
witnesses who may or may not be called during the trial;
(3) exchange and review trial exhibits which will
be used in the trial; and
(4) submit jury instructions (CACI) by their number
and title only approved and requested by all parties.
Counsel should also in this meet and confer conference decide:
(1) how many alternate jurors they will request;
(2) who will pay the jury fees and court reporter
fees
When counsel appear for the master calendar call they are expected
to be ready to proceed with trial immediately.
TRIAL EXHIBITS
Trial exhibits are to be marked by the clerk prior to the beginning
of testimony in the trial and should be pre-numbered “1”
through “___” (Arabic numbers only) by the trial attorneys.
Please arrange with the Clerk of Department 5 prior to trial for
a convenient time to submit exhibits for marking.
All trial counsel should try to stipulate to the admissibility
of as many of the trial exhibits as possible to save time at trial.
Trial exhibits that have been pre-marked, but are not subject
to admission by stipulation of the parties prior to trial, will
be ruled upon by the court at the time they are presented during
trial.
Any exhibits which are not shared with other counsel prior to
trial, i.e., for impeachment purposes, and which are not pre-marked,
must be approved by the court at an in-chambers conference prior
to use at trial.
Keep in mind that the projector is available for use at trial
and exhibits do not need to be enlarged or on poster board for use
before the jury. Training on the projector should be arranged
with the department clerk prior to the beginning of testimony in
the trial. Email: ahudak@sbcourts.org.
Copies of the trial exhibits that have been pre-marked should be placed
in binders with a numerical index on the first page. A copy
of the index should be given to the clerk, the court reporter and
the Court for their use during trial. The parties should avoid
duplicating exhibits with different numbers for the same document.
Each trial counsel should have his/her own binder for use during trial.
WITNESSES
Witnesses should be prepared to testify when called and parties who
fail to have witnesses ready to proceed may have to rest their case.
It is the responsibility of counsel to make sure that their witnesses
are ready and available when called. Trial counsel must understand
that if witnesses are unavailable for trial at the time of the Master
Calendar Call, alternate arrangements for their testimony (by video
tape or by having someone available to read the deposition of the
witness to the jury) are their responsibility and that unavailability
of a witness, especially an expert witness, is not a proper ground
for continuance. Counsel should be especially careful of the
availability of expert witnesses for trial, and should make arrangements
for the appearance of these witnesses for trial when the trial date
is first assigned. The Court must be timely apprised of any anticipated
scheduling problems. During the presentation of his/her case,
a party must give the opposition a day’s notice of the expected
witnesses for the next day and the order in which they are to be
called. Any change in this schedule should be noticed to the other
side as soon as possible.
If counsel are aware of matters that have to be heard and decided
by the court outside the presence of the jury, the Court should be
apprised of this when the case is assigned to trial. Appropriate
time limits or scheduling of hearings outside of the presence of the
jury will be established so jurors will not be inconvenienced by last
minute conferences or delays in starting the trial on time.
The standing order of the court is to exclude witnesses from the
courtroom during the trial. Counsel are expected to monitor
this order. Counsel shall advise their witnesses not to discuss
their testimony with any other witness after the witness testifies.
Counsel shall advise parties and witnesses that head nodding, grimaces,
unnecessary gestures, comments, name-calling, and other types of expressions
derogatory to the judicial process will not be tolerated; it is also
understood that counsel are to refrain from the same.
JURY INSTRUCTIONS
Trial counsel should prepare and provide to the Court at the
time of assigning the case to trial, a list of CACI Instructions
upon which they have stipulated. Each attorney should
also provide to the court at the same time and to all
other counsel a separate list of his/her requested jury instructions
upon which
they cannot reach agreement. The Court reserves the option to instruct
the jury on some matters before opening statements are made.
The usual procedure, however, is for the Court to instruct the
jury on all issues before closing arguments.
Each counsel shall present their special jury instructions in
printed form as soon as they determine the need for them and shall
provide all other counsel with a copy of these special instructions
along with citations to support the use of the instruction.
The Court reads the jury instructions from slides prepared by
the Court before trial. Jurors will receive their own individual
copies of the slides to which they may refer while deliberating.
JUROR CONTACT
The Court will instruct the jury panel after selection that they
are not to have contact with attorneys or witnesses until they are
released as jurors. They will also be instructed that counsel
may discuss the case with them after the trial, but only with the
juror’s permission and only at a reasonable time and place.
Counsel must never criticize a juror for the verdict or reveal evidence
which was not admitted at trial. Counsel are not to ask questions
or make comments that are intended to harass or embarrass the juror
or to influence the juror’s actions in future jury service
(Rule 5-320D of the Rules of Professional Conduct of the State Bar).
PRETRIAL MOTIONS
Notice of motions in limine shall be given in
accordance with Local Court Rule 1302, two court days before each
master calendar call. All motions in limine with points and
authorities shall be presented to the court when the case is assigned
for trial at the master calendar call, or as scheduled by the Court.
JURY AND COURT REPORTER FEES
Counsel shall be prepared to post estimated jury fees and court
reporter fees on the first day of trial. Jury fees are $15.00
per juror, per day, plus mileage. The department clerk will provide
counsel with the final figures when the composition of the jury
is determined. Court reporter fees are $405 per day or $203 per
half day.
VOIR DIRE
The court will conduct its voir dire of prospective
jurors. After the court inquiry, counsel will have a reasonable
opportunity to voir dire the prospective jurors. The
Court will set the time limit for counsel, subject to the following:
a. Avoid repeating or rephrasing questions already
asked;
b. Avoid pre-instructions, pre-argument, and suggestive
questions;
c. All challenges for cause should be expressed at
the side bar.
The Court will inform of and provide prospective jurors the
opportunity to answer potentially embarrassing questions in chambers
if the request is made by the panel member during voir dire.
COURT REPORTER
During court sessions, counsel are not to ask the reporter to
mark the reporter’s notes. Unless requested, jury instructions
are not reported.
If argument on an objection is required, it should be done at
the side bar. Side bar conferences are not reported unless
requested. Counsel may request that matters decided at side
bar be placed on the record at the end of the trial day. At
the conclusion of a side bar conference with the Court, counsel
shall not thank the Court in front of the jury for its ruling or
decision.
COURTROOM CONDUCT
Good advocacy requires that personality differences remain outside
the courtroom unobserved by jury, court, and staff. Courtesy
to all is required.
Judicial
Officers