CIVIL TRIAL RULES
J. WILLIAM McLAFFERTY, JUDGE
[Effective March 1, 2000]
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 (BAJI) 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;
and
(3) if they need and want to use the ELMO equipment in presenting
their case. (A request for using ELMO must be made directly to
Evelyn Abernethy who may be reached at (805) 882-4565. Requests should
be made as early as possible, since use of the ELMO unit is assigned
on a first come, first served basis.)
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 ELMO unit is available for use at trial and if
you are able to secure its use for your trial, exhibits do not need to
be enlarged or on poster board for use before the jury. Training
on the ELMO unit should be arranged with the department clerk prior to
the beginning of testimony in the trial.
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 BAJI 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 $5.00 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 $200 per day or $100 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, 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.
