Judicial Biographies >Judges

Protocol and Practice of Persons Appearing in the Court of Judge James D. Smith << return to previous page
Specific Comments or Advice for Litigants Specific Requirements or Preferences This profile is based on my current assignment, which is a family court calendar at the Southeast Regional Court facility. My profile may change when my assignment changes.  
 
General Statements.  
 
I am willing to work with counsel and the parties on procedures that will save the parties time and money.  
 
I expect all lawyers and self-represented litigants to follow the applicable court rules. See Higgins v. Higgins, 194 Ariz. 266, 981 P.2d 134 (App. 1999) (a person who represents himself is held to the same familiarity with court procedures and the same notice of statutes, rules, and legal principles as is expected of a lawyer).  
 
Terminology can be confusing. For my purposes, a trial and an evidentiary hearing are the same thing: I will receive evidence to decide a disputed issue of fact. A return hearing is typically a short scheduling conference and no evidence is received unless the minute entry or Order to Appear setting the return hearing specifically states that evidence may be presented.  
 
We have a very heavy docket. At any given time, our division has approximately 700 pending petitions (not cases) assigned to it. That figure does not include motions and other documents that require our attention (e.g., parenting coordinator reports, parenting conference reports, limited family assessments). Please realize that labeling something as expedited or an emergency does not mean that your matter jumps ahead of all others.  
 
Parties should not bring minor children with them to the courthouse as children are not allowed in the courtroom.  
 
When moving to withdraw as counsel of record, counsel must comply with Arizona Rules of Family Law Procedure 9(A)(2), or 9(B)(2) or Maricopa County Local Rule 6.2(C).  
Pre-Trial Practice and Management Issues Discovery or Disclosure Disputes and/or Sanctions General Discovery/Disclosure Matters.  
 
An initial disclosure statement is due 40 days after a party files a responsive pleading. Ariz. R. Fam. L. P. 49. Rule 49 requires parties to disclose most of the information needed for typical family law cases. That means you must disclose the information without waiting for the opposing party to request it. Rule 49(I) also imposes a continuing duty to disclose on the parties; if a party learns of new, relevant information, then he/she must disclose it within 30 days of learning of it. Rule 49(H) requires disclosing considerable information about any expert witnesses; if you don't follow that rule, it is likely that I will exclude your expert's testimony.  
 
Discovery or Disclosure Disputes and/or Sanctions.  
 
If counsel have a discovery dispute they cannot resolve, you may call my division. If I am available, I will speak with counsel to assist with the matter; otherwise, my staff will schedule a later telephonic conference with counsel.  
 
If I receive a motion pertaining to a discovery dispute, I first will check to make sure it contains the certification required by Arizona Rule of Family Law Procedure 51(F). If it does not, I generally will summarily deny the motion. If the motion contains the required certification, I generally will schedule a telephonic conference, particularly if a hearing is set in the near future.  
 
I avoid placing an entire case under seal. I typically will file documents that pertain to sensitive matters (e.g., parenting conference reports, limited family assessments, custody evaluations, child interview memorandums, adult psychological reports, and adult medical records) as confidential documents, which allows the parties, their counsel, and court staff to have access to the documents while protecting them from disclosure to the general public.  
Other Pre-trial Practice Guidelines or Comments Pretrial Practice and Management Issues.  
 
E-filing currently is not available in family court divisions. Please deliver to my division file-stamped copies of all petitions, motions, objections, responses, and similar documents that are filed with the clerk. Also, be aware that inter-office mail is slow. Therefore, if you deliver the division copy of a document to a different court facility, my division likely will not receive the document for several days.  
 
Double check legal citations prior to filing and include pin cites, directing me to specific pages of supporting authorities.  
 
All motions must adhere to the page limitations in the court rules. If you believe the page limitation needs to be extended, you should file a brief explaining why. Keep in mind that family court cases tend to generate a lot of paper so the more concise a motion/response/reply is, the more likely it is to be ruled upon quickly.  
 
When asking for an accelerated ruling on a motion, do not file a separate motion asking for an accelerated ruling and do not lodge a separate form of order granting a request for accelerated ruling. Instead, simply note under the title of the motion that you are requesting an accelerated ruling and, in the body of the motion, briefly explain why an accelerated ruling is necessary.  
 
I appreciate receiving courtesy copies of legal authorities you believe are particularly relevant or important. I do not need courtesy copies of cases stating basic legal standards, such as the standard for summary judgment. If you highlight those courtesy copies, you must simultaneously provide a copy to the other party.  
 
Do not request oral argument unless you intend to present information that is not in the written briefs. I may not grant oral argument even if a party requests it. If I set oral argument, it often means that I have questions about the briefs.  
 
When submitting to our division a copy of a document (regardless of whether you are submitting it by fax, mail, or hand-delivery), only submit a file-stamped copy (i.e., a copy with the Clerk of Courts filing stamp indicating the date the document was filed). I can only act on documents that you filed with the Clerk of Court. See Ariz. R. Fam. L. P. 43(D)(1) & 43(E).  
 
When both sides have lawyers, I expect the parties to file a joint pretrial statement, not separate statements. Ariz. R. Fam. L. P. 76(C). This requires the lawyers to work cooperatively and to plan for the trial/evidentiary hearing. When I was practicing, I found this typically required that the lawyers begin the process 30 days before the pretrial statement was due. This included identifying exhibits at that time so each side had an opportunity to object or to work through objections with the other side.  
 
Whether represented by lawyers or self-represented, parties should include all objections to exhibits in their pretrial statement; I typically deem any objections waived if not included. Ariz. R. Fam. L. P. 76(C)(1)(f).  
 
Please follow the procedures for using depositions at trial. Ariz. R. Fam. L. P. 59. If you plan to present excerpts of a deposition, you must designate them by page and line in the pretrial statement. Ariz. R. Fam. L. P. 59(C). Please have a copy of full the deposition for me, too. Of course, parties may use depositions to impeach testifying witnesses with prior inconsistent statements without making page/line designations in advance; again, however, please have a copy of the deposition for me. Do not mark depositions from the case being tried as exhibits, though.  
 
Other Pretrial Practice Guidelines or Comments.  
 
Requests for temporary orders should be reserved for matters that truly cannot wait for a final orders trial. Typically, if a party requests temporary orders, I first will set either a short return hearing or a resolution management conference, at which time I will set a temporary orders hearing that is no longer than 60 minutes.  
 
If the parties settle before trial, do not assume that the Court will vacate any upcoming hearings. The parties should submit a written document, signed by both parties (or their counsel) that, at a minimum, states that the parties have settled and what upcoming hearings they believe the Court should vacate. In addition, if the parties have not yet documented the terms of their settlement in a formal settlement agreement and proposed form of order, they should inform the Court of when they expect to file such agreement and lodge such order. Upon receiving such information, I likely will vacate the upcoming Court event(s) and set a deadline for submitting the settlement documents (agreement and proposed form of order). Absent such information, I likely will order the parties and counsel to appear in person to put the agreement on the record or hold a brief telephonic conference with counsel.  
 
Keep in mind the difference between requests for ex parte relief and requests for accelerated/expedited rulings. An ex parte matter is a request that the Court rule without giving the other side an opportunity to respond. The standard is that the moving party must demonstrate, in an affidavit or verified motion, that irreparable injury, loss, or damage will result if the relief is not granted before the other side has an opportunity to respond to the motion. See Ariz. R. Family L. P. 48(A). In contrast, a request for accelerated or expedited ruling is a request that the Court accelerate the time frames for the filing of a response and rely to the request. See Ariz. R. Fam. L. P. 35(A) (setting forth normal briefing schedule for motions). A party who requests an accelerated or expedited (but not ex parte) ruling must provide the other side with a copy of the motion or petition prior to, or at the time of, filing the motion or petition.  
 
Unless the matter is being presented ex parte (i.e., without notice to the other side), I will not consider it to be emergency (warranting accelerated or expedited ruling) unless a copy of the motion was sent to the opposing counsel/party via hand-delivery, fax, or e-mail. Ex parte requests for temporary orders must satisfy the requirements of Arizona Rule of Family Law Procedure 48(A).  
 
I will not expedite oral argument or a ruling where it appears that the the moving party's delay caused the purported urgency. I also generally will not put a matter ahead of other matters when the moving party could have filed the motion much sooner (e.g., parenting time over holidays). You should reserve requests for accelerated/expedited rulings for unforeseen circumstances.  
 
Telephonic proceedings are encouraged, particularly for matters that do not exceed 30 minutes and do not require testimony (other than testimony to place an agreement on the record).  
 
Unless the Order to Appear or minute entry setting a return hearing or Resolution Management Conference states that evidence may be presented, I will not allow take evidence at the return hearing or Resolution Management Conference, nor will I make any substantive orders. Keep in mind that, in most cases, the purpose of a return hearing or Resolution Management Conference is to determine: (a) whether the parties have reached any agreements and, if so, to put those agreements on the record; (b) determine what services may help resolve the issues in dispute (e.g., substance abuse testing, parenting conference, custody evaluation or limited family assessment, appointment of a court-appointed advisor or best interest attorney, mediation or settlement conference); and (c) schedule future proceedings. Return hearings and Resolution Management Conferences are typically set for only 30 minutes.  
 
Trial Practice and Protocol Joint Pre-Trial Memo and/or Conference; Exhibits and Objections Exhibits and Objections.  
 
You must timely submit exhibits to the division clerk. If an exhibit is not submitted at least five judicial days before the hearing, I either will not allow the exhibit to be admitted at the hearing or, in the alternative, the time it takes my clerk to mark the exhibit will be deducted from the offering partys trial time.  
 
Offer only those exhibits that are most relevant to your case, and do not make exhibits overly-voluminous. For example, if you subpoena 12 months of bank statements, but only one month is necessary for Court review, just mark the one month's statement as an exhibit.  
 
Do not offer multiple documents as a single exhibit unless the documents have some direct relationship to one another. For example, do not combine an e-mail with a bank statement, but offering two months of bank statements for the same account is acceptable. Last, for ease of reference, if a particular exhibit has multiple pages, be sure the pages are consecutively numbered, even if this means you need to number them yourself. Otherwise, you will waste your trial time trying to direct the witness (or the Court) to the one page of the multi-page exhibit that is critical to your case.  
 
Before you submit your exhibits, meet with the opposing counsel or party and try to coordinate the exhibits. This will avoid duplicate exhibits and will ensure consistent numbering, which will make it easier for my staff to provide you with an exhibit worksheet prior to the day of trial (see below).  
 
If both sides timely submit all exhibits (i.e., at least five judicial days prior to the hearing), counsel may call my division a day or two prior to the hearing and request that the clerk fax an exhibit worksheet to them. If, at the time of the call, my clerk has prepared the exhibit worksheet and if my staff has time, my staff will then fax counsel a copy of the exhibit worksheet,  
 
I appreciate receiving bench copies of exhibits. If the bench copy is a tabbed notebook, with all exhibit numbers matching the actual exhibit numbers, it is much easier for me to follow your evidentiary presentation.  
 
Many lawyers and self-represented litigants do not understand the standards under the Arizona Rules of Evidence (if properly invoked) or Arizona Rule of Family Law Procedure 2. Thus, many objections are not well made. As the trier of fact, I know what evidence is relevant and will not consider irrelevant evidence. I'm not necessarily giving weight to evidence simply because I admit it.  
 
Because most hearings are typically short and litigants have limited time to present their case, I often will overrule objections to leading questions on direct examination. Nonetheless, testimony by leading questions generally is not as persuasive as narrative testimony.  
 
Joint Pretrial Statements.  
 
When a matter involves lawyers on both sides, I expect those lawyers to prepare a joint pretrial statement by the deadline set in the scheduling order. The lawyers must work together professionally to complete this document, and they must timely exchange exhibits in advance. It is not sufficient to disclose a document at some point during the case; rather, a party must specifically identify that a document is a trial exhibit by the deadline set in the scheduling order.  
 
When identifying exhibits, don't use generic descriptions like "emails" or "school records." Be specific, such as:  
1. Email chain between Petitioner and Respondent from 12/01/2013 through 12/05/2013.  
2. Email from J. Doe to A. Smith 01/05/2014, 8:52 a.m.  
3. Child's Academic Progress Records from XYZ School for fall 2013 and spring 2014 semesters.  
4. Child's medical records from XYZ Pediatric Center dated 03/05/2015, 04/29/2015, and 06/05/2015.
Trial Practice and Procedure Trial Practice and Protocol.  
 
The Court manages time estimates. When we set trials, I reserve a certain amount of time for preliminary matters, my questions, and possibly time for ruling from the bench, before dividing the remaining time equally between the parties. For example, each party typically receives 25 minutes in a one-hour hearing, leaving me about 10 minutes for questions, etc.  
 
I use a timer to keep track of time limitations. The timer runs through openings, examination, and closings. I typically will stop the timer if I am asking a question of the party so I don't affect that party's time. I try my best to apprise you of how much time remains, but please don't count on my doing so.  
 
When your presentation follows the statutorily-prescribed factors, I am able to rule on the issue more quickly. For example, presenting evidence in a legal decision-making/parenting time dispute in the order of the factors in A.R.S. secs. 25-403 and 403.01 is very helpful. Transitional statements also assist the Court. For example, you might say to witness, "Turning your attention to factor number 4, please describe the child's adjustment to home, school, and community." Once the witness has testified to the factors in the statutes, have the witness address any other facts that you believe are relevant to the issue. Similarly, if relocation is an issue, present evidence that addresses the factors in A.R.S. sec. 25-408 in order. Likewise, if spousal maintenance is an issue, first present evidence as to the factors in A.R.S. sec. 25-319(A) and then the factors in A.R.S. sec. 25-319(B), directing me to each of those factors as you proceed.
Courtroom Etiquette Silence all electronic devices before entering the courtroom. During evidentiary hearings, parties and witnesses must turn off phones.  
 
We record the proceedings electronically. Counsel should stand when stating their appearance. I prefer that parties and counsel remain seated at the counsel table when questioning witnesses(rather than standing up at counsel table) because of microphone locations. If counsel (or unrepresented parties) prefer to stand when addressing the Court or a witness, I ask that they use the podium (if one is available). To ensure a good record, please remember to speak into the microphone.  
 
Counsel should ask (once per witness) for permission to approach a witness or the other party to hand him/her exhibits, etc.  
 
 
click here for Law Library Resource Center