 federal judicial center orientation series for district judges the final pre-trial conference and the civil trial with the Honorable Marvin E. Aspen and the Honorable Kimba M. Wood. Judge Aspen was appointed as the United States District Judge for the Northern District of Illinois in 1979. He is a member of the federal judicial centers board and has served as a member of the judicial conference committees on the administration of the bankruptcy system and the Inns of Court. Judge Wood was appointed as the United States District Judge for the Southern District of New York in 1988. She has served on the Second Circuit Judicial Counsel's Committee on the pre-trial phase of civil cases. In the program on civil pre-trial procedure Judge Schwarzard talked about the need for effective management during the early stages of a case. He also shared some ideas for making the most of that scarce resource your time. Judge Schwarzard's comments are especially pertinent in light of today's growing case calendars and the increased filings of long and complex civil and criminal cases. For example as we're recording this program I'm in the fourth month of a complex multi-defendant criminal trial. I know that if I didn't have a case management system in place my civil calendar would be a disaster. Judge Wood and I will continue Judge Schwarzard's discussion focusing on the later stages of the civil process, the final pre-trial conference, and the trial itself. In the pre-trial procedure program Judge Schwarzard mentioned case management tools. Your tools at the final pre-trial conference and the civil trial are basically the same. They're the rules, the federal rules of civil procedure and of evidence, and your court's local rules. Keep in mind the goal of civil procedure rule one, the just, speedy, and inexpensive determination of every action. Also remember that the federal rules of evidence afford you broad discretion to control the trial. For example rule 102 provides that rules shall be construed to secure fairness to the end that the truth may be ascertained in proceedings justly determined. Rule 611A states that the court shall exercise reasonable control over presenting of evidence for the ascertainment of the truth and to avoid needless consumption of time. You won't exercise your power in a vacuum. When you take the bench you'll step into a world shaped in part by local practices and customs. Don't ignore the tradition that has evolved in your court but don't be a slave to it either. One long-standing tradition is that lawyers run their cases. To some extent active case management changes that. It will bring you into areas that used to be entirely within the lawyer's control. That doesn't mean you should take the case away from the lawyers but it's your role to set limits, define issues, and establish ground rules. The lawyers have to fulfill their role trying the case within the framework you create. You need to be aware of the frequent tension between lawyers' obligations to their clients and the objectives of the court. It's your job to bring about a reasonable accommodation when those points of view conflict. You have to formulate a framework that lets the adversary process move in a constructive way. Take the example of a defendant who knows he might lose. When he loses he'll become liable for a hefty sum and damages. He sees one way to keep that liability at bay to delay the trial. His lawyer may try to do that by blanketing your courtroom with meaningless motions. You have to put clear limits on how many and what kinds of motions you'll accept and when you'll accept them. Civil practice rules 11 and 26 G may be of help. As you get started on the bench don't hesitate to discuss a procedural problem with a more experienced district judge before making your determination. We've all gone through the learning experience. If you wish the advice of an experienced colleague is only a phone call away. Let's take a look at the final pretrial conference. Judges have different ideas on what makes a good one. Some treat it as little more than an exercise to confirm trial dates. Others try to induce settlement by burdening the lawyers requiring them to prepare elaborate statements, summaries and stipulations. It's best to follow a course between those extremes. You can use the final pretrial conference to make sure the attorneys are fully prepared to streamline the trial and to avoid surprises down the road. Here's an agenda to help you meet those objectives. Keep up the process of defining and narrowing the issues. Hopefully you will have made substantial progress at earlier stages of the case starting at the rule 16 conference. But you can go further now that the lawyers have a clearer understanding of the case. This is your last chance to prevent wasted trial time on pointless or undisputed matters. You may be surprised at how often you will be able to identify irrelevant or undisputed points that the lawyers failed to recognize even at this late date, perhaps because they're too close to the case to have reassessed the big picture. Require lawyers to submit proposed jury instructions or for bench trials proposed findings of fact and conclusions of law. This expedites the narrowing of issues. It also gives you something to work with. You can supplement and organize the proposed jury instructions as the trial proceeds. Preview the proposed testimony. You can flush out testimony that's repetitious or that doesn't address a genuine dispute. Pay special attention to experts. Lawyers sometimes try to make their cases more compelling by plastering them with overlapping expert testimony. Don't let your courtroom become a battleground for opposing camps of expert witnesses. It's reasonable to set some limits, like allowing one expert on each relevant scientific discipline for each side. Preview the proposed exhibits. This is the time to make sure the jury will not be inundated with masses of exhibits that they cannot absorb. Have the lawyers pare down their lists to the essentials. Suggest redaction of irrelevant portions of exhibits. If you're confronted with voluminous information from numerous exhibits, consider having the lawyers compress it into one summary exhibit. Receive exhibits into evidence. If there are evidentiary objections, rule on as many as possible. Consider imposing limits on the length of the trial. There are a couple of options for doing this. You can limit the numbers of witnesses or exhibits each side may offer, or you can limit each side's time for direct and cross examination. You should impose these limits with care and only after full consultation with counsel. Rule on motions in limine. This will avoid uncertainty at trial over admissibility of evidence or the scope of issues. However, there's one type of motion in limine that often should await trial. A rule 403 motion which calls upon you to weigh the probative value of relevant evidence against its prejudicial effect. Frequently, you cannot weigh the probative value of a piece of evidence until you know what other evidence there is on that point. And whether an item of evidence is confusing or otherwise prejudicial may depend upon what else the jury has heard. Lay down your ground rules for the trial and make sure that the lawyers understand them. This is the time to describe the jury's selection procedure and set the trial schedule. Specifically the days and hours the court will be in session. Some judges set forth the ground rules for trial in writing, and a sample set of trial procedure rules is in your materials. This is also the time to consider special procedures. Maybe it's a case where bifurcation makes sense. The advantages are clear for example in personal injury cases. A verdict for the defense ends the proceeding. There's no need to hear evidence on damages. A plaintiff's verdict may lead to settlement. Or what about planning for a special verdict or a general verdict combined with special interrogatories? Especially in complex cases, these reduce the risk that you will have to retry the entire case following a partially successful appeal. You have to weigh that advantage against an increased risk of inconsistent verdicts. If you decide that a special verdict or a verdict with special interrogatories makes sense, careful drafting and thorough review by counsel are essential. Finally, and this is critical, don't miss this last chance to explore settlement possibilities. The parties know their cases by now and they know that litigation is not pleasant. They may be less resistant to settlement than they were a few months ago. Their lawyers may be waiting for you to raise the subject. You can ask counsel to help you structure the settlement discussions to maximize the possibility of success. You will often get useful information from the lawyers themselves about what are the stumbling blocks to settlement and what kind of intervention from you would be useful. If you think a case is right for settlement, you can require the attendance of a party representative with authority to settle. And if you expect the conference to focus on settlement, you might want to have someone else prepared to preside. As you heard in the program on civil pretrial procedure, some judges prefer to have a magistrate judge or a mediator handle settlement discussions, especially in bench trials. Otherwise, counsel or the parties may conclude that the judge has made up his or her mind about the merits before the trial. The parties may also be more candid about the weaknesses of their case with someone who will not be the fact finder. You should also memorialize the results of the conference in a pretrial order. To save time, you can dictate the order to the court reporter at the end of the conference with counsel present, or you can simply hand write your scheduling and other directions on a form scheduling order. We'll talk more later about a few agenda items particular to final pretrial conferences preceding bench trials. What do we see juries do during trial? Not very much. They don't testify. They don't ask questions. They don't dictate procedure. They just sit quietly and we hope look and listen. Because the jury's role appears so passive, we tend to forget its importance. It's obvious, but it bears repeating. Juries are the people we expect to decide the case. There's a difficult task. As you know, it is not easy to pay attention and to absorb hours of sometimes boring testimony each day. I think we all know that. You should make every effort to help the jurors maximize their performance. Start with simple consideration. Treat the jury with respect and make sure that everyone else does. They're making a substantial sacrifice to perform a taxing public service. They're entitled to no less. And the things you can do to help the jury generally are good for everyone. Here's a summary of the basics. Tell the jurors in advance the times the trial will start and conclude each day. Don't extend the trial day into the evening without a special reason to do so. Always start the trial on time. Be on time yourself and demand the same of the lawyers. You also ought to avoid unnecessary or lengthy recesses. Give the jurors an ample lunch and recess. An hour is generally a good amount of time. Perhaps an hour and a half may be necessary in a busy metropolitan community. Don't send the jurors out of the courtroom while the lawyers argue. If you anticipate discussions of a matter the jury shouldn't hear, take it up before the start of the trial day. Encourage the lawyers to anticipate in advance and to schedule matters to be heard outside of the presence of the jury at the end of the trial day. By all means, avoid frequent sidebars or bench conferences and other interruptions. They can leave jurors feeling frustrated and excluded from the process. Try to keep the trial moving without disruption. Of course, emergencies do come up and sometimes you can't deflect them. But try to schedule sentencing, pleas and other matters so they don't disrupt the trial. Some judges have adopted the practice of holding trials during four uninterrupted days of the week and scheduling all other court matters on the fifth weekday. As I've said before, it's easier to keep the trial moving smoothly if you confer with the attorneys at the end of each day. This gives you a chance to preview the next day's witnesses and exhibits. You can anticipate evidentiary problems and head off situations like a lawyer running out of witnesses before the day is scheduled to end. Appreciation for the difficulty of the jury's task brings us to the need for early instruction. We all know that jury instructions are given at the end of a trial. But it's growing more common for judges to instruct the jury before the trial begins. Some judges even give instructions before voir dire so jurors will be better able to respond to questioning. These pre instructions have two primary purposes. To inform jurors about their job, how the trial will be run, how they should conduct themselves, how to treat evidence received and other ground rules. And to explain what the case is about. The elements of the claims and defenses and the questions they will have to decide. Since the jurors have to decide the case, it's critical that they understand what's going on. Making sure they do will require your continuing efforts throughout the trial. For this reason it may be appropriate to instruct the jurors on a matter of law during the course of the trial. Also encourage the lawyers to speak clearly and in plain English. Tell them you'll expect the same of their witnesses. Visual aids can make a tremendous difference to the jury understanding. For example, you might want to suggest the use of an overhead projector so jurors can follow along the text of exhibits during testimony. From time to time stop and explain the trial procedure past and present. Be sensitive to times when a little extra explanation might be needed. For example, during transitional periods of the trial, such as when the plaintiff has rested and the defendant begins to put on its case. Some jurors will be better able to understand and retain what they hear if they take notes. Most judges permit jurors note taking subject to appropriate instructions. If you decide to permit note taking, you may wish to consider an instruction similar to the one I use, which is included in your materials. It makes it clear that taking notes is optional, not required, and puts the importance of notes in the proper perspective. Finally, consider further aids to jury understanding where they seem to be needed. For example, some judges, particularly in complex cases, have individual juror notebooks prepared. These notebooks can include paper for note taking and also provide photographs of witnesses, individual copies of key exhibits, written copies of jury instructions, and other materials that the lawyers agree will help the jurors do a better job. It's essential to set and maintain basic standards of courtroom demeanor. In part, this involves a simple extension of your consideration for the jury to others in the courtroom. All the participants, including the judge, the parties, the witnesses, and spectators, must be courteous and respectful of others. You should always be in control. Be courteous, but firm. Never let counsel argue with each other. At the first sign of such behavior, instruct counsel to address questions to the court. Under normal circumstances, a few comments from you should be more than sufficient. But if the argument persists, you can call for a short recess to explain the possibility of sanctions should these actions persist. It's standard for the lawyers to question the witnesses. But when and how should you intervene? Rule 611 of the federal rules of evidence gives you some guidance. It provides that the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence, so as to get at the truth, save time, and protect witnesses from harassment. Still, judges' opinions differ on this. This is one area where bench trials and jury trials have different needs. Generally speaking, in a jury trial where competent counsel on all sides are doing a good job, you'll rarely need to get involved. But if a not so competent lawyer is asking irrelevant questions, the interest of efficient trial management may compel you to intervene. If it's a bench trial, since you're the one who has to decide the case, feel free to ask any questions that you feel will help you understand the case. Hopefully, you've already bypassed most problems posed by the handling of exhibits. Judge Wood talked earlier about using the final pretrial conference for thorough preparation of exhibits. Generally, court time should not be wasted while counsel reviewed documents. An exception can be made for documents used to refresh recollections under Federal Rule of Evidence 612 and those used for a buttle. The need to rule on evidentiary objections can slow a trial down. We've already talked about keeping them to a minimum by ruling on as many as possible at the final pretrial conference and during the trial by hearing motions in liminae during non-jury time. This will allow you and the attorneys to explore the evidentiary problems carefully and without the pressure of awaiting jury. In spite of these helpful procedures, some evidentiary problems may prop up during the trial. It's always helpful to keep a copy of the Federal Rules of Evidence in court for easy reference for immediate rulings. You may want to give the lawyers advanced guidance on the form of objections. For example, many judges find counsel more likely to make serious and thoughtful objections if they're required to rise. In multi-defendant cases, having the lawyer rise makes it easier for the court reporter to identify the objector. Discourage argumentative objections. By requiring counsel to state the evidentiary objection without argument, you save time and avoid misplaced attempts to argue the case instead of the point of evidence. You should also discourage the other side from responding to the objection in open court. In those few times you really want to hear argument on an objection, you can ask it to be heard outside of the presence of the jury. At the close of the evidence, it's time to settle on your jury instructions quickly and move to final arguments. If there are motions for a directed verdict, rule on them promptly or reserve ruling promptly and move on. Ideally the lawyers submitted requests for jury instructions or charges at the pretrial conference. You've had time as the trial progressed to organize and simplify those requests and to supplement them in light of developments during the trial. The lawyers may also have submitted supplemental requests. It saves time to keep the most frequently used instructions on computer disks. You can then quickly adapt them to new cases. When you don't have a particular set of instructions on your disk but you want to use the instructions, have the attorneys provide you with their disk compatible with your system to avoid the work involved in retyping and proof reading. How do you make sure your jury instructions do what they need to do? First and most critical, write them in plain English. Don't just throw your instructions together at random, organize them carefully, strive for a logical sequence corresponding to the reasoning process a person would engage in to decide the case. Keep them brief. Far too many instructions are given for no better reason than habit. If you plan to have a charge conference with counsel and you are swamped with other work in the evening after trial, you may want to let your law clerk preside over the information exchange that often constitutes the first part of the charge conference, especially if you get the sense that counsel have not yet focused on one another's proposed instructions. The first part of a charge conference often involves clarifying where the attorneys agree and where they disagree and counsel can often find common ground with your law clerk's aid. Once you finalized your instructions, when do you give them? Rule 51 permits the judge to instruct the jury either before or after closing arguments. Although it's traditional to give the instructions after closing arguments in part so that you are sure what counsel's positions are before instructing the jury, there are cases in which it may be more helpful to the jury to give your instructions before argument. For example in a complex case it may help the jury organize the information they hear in closing arguments. It also saves time by making it unnecessary for the lawyers to preview the instructions in their arguments. Closing arguments should be brief. You may want to limit the time each side can take. The time needed varies from one case to the next, but a case requiring more than an hour per side is rare. With that it's time for the jury to decide the case. Don't abandon them as soon as they head for the jury room. You can continue to assist them during their deliberations in a number of ways. Most judges provide copies of the charge to take into the jury room. Even if your instructions are a model of simplicity and brevity, you cannot expect jurors to remember them or even to understand them fully after hearing them only once. Be careful with exhibits to be sent into the jury room. Counsel should check each one to make sure nothing extraneous like an excluded page of a document goes to the jury. Have your law clerk double check each exhibit very carefully. What if the jury wants to ask you questions during deliberations or request further instructions? There's nothing wrong with giving the jury the help it needs as long as you stay within limits but always consult with counsel before responding. Also try to respond in ways that are not time consuming. For example, if the jury asks for a readback of the widget engineering experts testimony but the widget engineering expert testified for a full day, it's not likely that any juror really needs to hear every word again. It may just be difficult for them to frame a more specific request. Try to guide the jury toward a narrower request for just a portion of the testimony. The longer the trial, the longer you can expect the jury to deliberate. What if you get word of a deadlock? How to respond is a difficult judgment call but there are a few guidelines. First, don't declare a mistrial until it's clear that the deadlock is hopeless Ask the foreperson whether more time is likely to help. Sometimes a foreperson will report a deadlock but when you ask whether more time is likely to help you'll get the response yes. If you don't exert undue pressure you can encourage the jury to keep trying. What you say to the jurors to encourage them to keep trying is a very delicate matter. Reversals can hinge on what seem like minor points. So before you begin encouraging them be sure to consult the instructions usually referred to as Allen charges that are approved in your circuit for deadlock juries. Once the jury reaches a decision you'll need to receive it. Make sure that the verdict appears to be in order. If a lawyer requests a jury poll either you or the courtroom clerk should ask each juror how he or she has voted. It's not quite time yet to enter judgment. First look for any remaining unresolved matters like attorneys fees and pre-judgment interest. Resolve all points before you enter judgment. You can enter a presumptive finding on attorneys fees and allow comments. A technical point the judgment gets its own separate piece of paper. The case may not yet be over. There may still be post trial motions like motions for a new trial amended findings or a renewed motion for a judgment as a matter of law what you may be accustomed to calling JNOV. Take them seriously. They may emphasize issues that weren't fully considered at trial. If you want to respond in writing do it promptly. What about talking to jurors after the trial? There are two issues here. First is it all right for you to talk to them? My personal feeling on this issue is that you should talk to the jurors. It gives you time to thank them informally for their service and answer any questions they may have. They will appreciate this opportunity and it will be a good learning experience for you. If you decide to talk to the jury you'll probably be asked a version of this question. Judge, do you think we reached the right verdict? My answer is always that there was evidence to support your decision. This reassures the jurors without committing you to what you might have done if you were the trier of fact. The second issue is whether you should permit the attorneys to talk to the jury. If so, what if any guidelines should you give the attorneys? There are different views on the subject. I generally permit the lawyers to speak to the jurors at the close of the case. It will help the lawyers in their future courtroom performances. However, I tell the jurors that they do not have to talk with the lawyers if they don't wish to do so. I also admonish the lawyers not to re-argue their cases to the jury or suggest that the jurors have not performed their jobs properly. Before you make a decision, consult your local rules and familiarize yourself with customs in your district. Let's turn now to the bench trial. It is subject to fewer formalities than a jury trial but don't fall into the trap of assuming that it will run itself. Less formality is no reason for letting the trial proceed in a careless and disorganized fashion. On the contrary, since you're the one who decides the case, you have a special interest in keeping a bench trial under control. Limit the testimony and exhibits to what is essential. Insist on orderly and comprehensible presentations of evidence. Don't make the mistake of allowing evidence on the assumption that you and your law clerk can figure it out back in chambers. If it's not clear now, it will be less clear later. The lawyers presenting the evidence are responsible for making it comprehensible but you have to tell them what you need. Here are a few suggestions for streamlining a bench trial. First, conduct a thorough final pretrial conference. That's important in any case as we've already discussed but the capacity for time saving is even greater in a bench trial. At that pretrial conference have the lawyers submit proposed findings of fact and conclusions of law. Have them marked to indicate which matters are in dispute. Follow along on those findings as the trial unfolds, making your own findings and preparing to rule at the end of trial. One way to save time in a bench trial is to have the lawyers submit their witnesses testimony in the form of narrative written statements. You have the option of receiving the statements at trial in lieu of direct testimony subject to objections and cross examination of witnesses. This practice has several advantages. First, it lets you know what to expect at trial and enhances your opportunity to prepare in advance. It also improves the quality of the testimony. Narrative statements that have had the benefit of counsel's input are likely to be clearer and better organized than oral testimony no matter how well rehearsed. It can improve the quality of cross examination even more dramatically because the lawyers know what to expect. It's a rare case where you need the direct testimony live in order to assess witness credibility. Usually, credibility can be fully tested on cross examination. In bench trials, counsel often want to file post trial briefs after they review the transcript. Having briefs come in months after a trial when intervening events have erased from your mind much of what you once knew about the case and about witness credibility is inefficient. It makes issuing the opinion more painful than it needs to be. For this reason, many judges now tell counsel at the pretrial conference that instead of post trial briefing, counsel will have to be prepared to sum up after the last witness just as if there were a jury. If at all possible, be prepared to dictate your findings and conclusions to the court reporter at the end of the closing arguments. One exception to that is a bench trial involving a pro se litigant who is mentally unstable or potentially violent. In those cases, you may prefer to issue a brief written opinion shortly after trial. That brings us to the end of the civil case in your courtroom and the end of this program. By taking charge of the case from its earliest stages and keeping your attention on sound management through trial and what follows, you'll accomplish several critical objectives. You help the lawyers do a better job. You save the party's time and money. You help keep your docket under control and last but certainly not least, you make your own job more interesting and rewarding.