Protocol and Practice of Persons Appearing in the Court of Judge Bruce COHEN

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Specific Comments or Advice for Litigants

Specific Requirements or Preferences [UPDATED SEPTEMBER 7, 2018]  
Background Information:  
I earned a B.A. in Psychology in 1978 from the University of Arizona and my J.D. from Arizona State University in 1981. I became a member of the Arizona Bar in 1981 and spent 24 years in practice, primarily as a family law attorney. I am proud of that work and have great respect for members of the family bar.  
I was appointed to the Maricopa County Superior Court Bench in 2005, serving my first six years assigned to Family Court. I then was assigned to the Criminal Department for four years and followed that with three years on a Juvenile assignment. I began my tenure with the Civil Department in June of 2018.  
Philosophical Approach  
I have profound respect for the court as an institution as well as for the professionals who appear in this court. I strive to show that respect to all who appear before me and ask for the same from the professionals. It is my firm belief that when any of us as professionals show a lack of respect to the institution or each other, we undermine the authority of the court and the rule of law in the eyes of those we serve.  
I also strongly maintain that everyone involved in the judicial system plays a key role, from judicial officer to counsel to court staff to clerk to court reporter, etc. Court staff and personnel are entitled to a similar level of respect as is due to any judicial officer or professional appearing before the court.  
Litigants deserve the best effort from us all. It is critical that at all times we recognize that what we do impacts their lives. As the professionals engaged in serving them, we must be consistent in showing respect and ensuring that they are heard.  

Pre-Trial Practice and Management Issues

Motion Practice Motions, responses, and related pleadings must comply with the length and other requirements of the rules. I am reluctant to have to resort to draconian measures because rules have not be followed, so please remain mindful of those rules.  
I would prefer that you NOT COMBINE a response or a reply to one motion with a new motion for affirmative relief, even if on a related topic. Because of electronic filing, we can track the single filing only as a response, as a reply, or as a new motion. Motions for affirmative relief should be filed separately from responses and replies.  
It may go without saying but, in each pleading you file and during each argument your make, it should be clear as to what specific relief you are seeking. I once asked an attorney at the end of a bench trial what relief he was seeking and he responded that he wanted me to be “fair and equitable” in my decision. I joked in response that I was pleased he had reminded me of that standard as I otherwise might have resorted to being “arbitrary and capricious.” If I know precisely what relief you seek, I can best assess the merits of the arguments or evidence presented. Further, if I know at the outset of the argument or at the beginning of a pleading what you are seeking, it allows me to consider your arguments in context of the desired result.  
Discovery or Disclosure Disputes and/or Sanctions If there is a dispute as to discovery or disclosure, sanctions are the last course of action. My preliminary focus shall be on identifying the issue and attempting to develop a plan that will resolve the dispute fairly for both parties. Be prepared to work toward finding solutions to disputes of this nature rather than focusing on finding fault.  
Other Pre-trial Practice Guidelines or Comments Communication between Counsel  
It is not only appropriate, but best practice, for counsel to confer before the scheduled court appearance so that at a minimum, there is a clear understanding of what is at issue.  
Scheduling Coordination  
I do not prioritize form over substance. As such, if there is a matter to be addressed for which my staff can assist in scheduling or coordination, I suggest that a phone call be placed to my judicial assistant, Julie, or my bailiff, Rachel, at 602-372-0686, in an effort to determine how we can assist in streamlining the scheduling of any matters of importance.  
When counsel for the parties encounter issues that they believe can be addressed in a timely and cost effective manner through judicial intervention, we will do our best to accommodate those requests in a less formal manner through the setting of brief telephonic conferences. There are only two rules that we impose: First, all sides impacted by the issue presented must agree that judicial intervention through informal means would be productive; Second, on the day prior to the scheduled telephone conference, counsel are asked to provide a one paragraph document (which may be e-mailed to my judicial assistant) that specifies the issue to be discussed. It should not include legal authorities, arguments or posturing. The sole purpose of the document is to allow me to be prepared for the issue by reviewing pertinent parts of the case history or court file in advance of the telephonic conference.  

Trial Practice and Protocol

Trial Schedule Each morning, as many as three abbreviated hearings will be set, commencing at 8:45 a.m. Regular trial days and hours are from 10:00 am until 4:30 pm, Monday through Thursday. There is a 90 minute lunch break between 12:00 and 1:30. When required, trials may commence earlier on a given day. Generally, Fridays are reserved as Law and Motion Day. Joint Pre-Trial Memo and/or Conference; Exhibits and Objections Pre-Trial Obligations  
The trial setting minute entry I issue as well as the minute entry generated following the Final Pre-Trial Conference contain detailed information. It should be carefully reviewed as virtually all trial preparation matters are addressed.  
Preliminary and Final Jury Instructions  
My staff and I will do our best to provide an initial draft of jury instructions as early in the trial process as practical. In most circumstances, the first drafts will be e-mailed to counsel well in advance of when the instructions are due to be finalized. They are provided solely to serve as a starting template and the inclusion or omission of any specific instruction at this stage is not a reflection of any inclination of the court for the final versions thereof.  
Bench Copies of Exhibits  
During trial, lines of inquiry often focus on specific exhibits. Unless the exhibit is being simultaneously published for the jury, only the attorneys have copies and the witness has the exhibit itself. I do not. At times, I am asked to rule on evidentiary issues relating to the exhibit but have never seen it and do not have it in front of me when the objection is being made. By having a copy of each exhibit, I can be following along while the witness is being questioned. Although not mandated, providing a bench book of exhibits at the commencement of trial would be most appreciated.  
Jury Selection I do not use “strike and replace.” The entire potential panel is asked general questions that relate to availability, understanding of the law, as well as personal experiences with the law and judicial system. Each time a break is taken, I confer with counsel and identify any specific jurors who may be considered to be struck for cause or excused. If there is no objection, the juror is excused at that time. This narrows down the pool of prospective jurors to those who are able and willing to serve on the jury and shortens the jury selection process. If either party objects for any reason, the juror will generally remain at least through the next phase of the selection process. The questions on the back of the juror card are not asked until those jurors who clearly will not serve on this case are excused.  
From time to time, I may make attempts to inject some humor into the jury selection process. By no means is this done to demean the importance or gravity of the case before the court. Rather, it has been my experience that potential jurors can find the entire jury duty obligation to be daunting and unnerving. By creating a more comfortable environment, the quality of their responses during voir dire improves.
Trial Practice and Procedure Record of Proceedings  
The record for most proceedings is maintained through our FTR system. It is the responsibility of each party to present the case in a manner mindful of the fact that there is an audio recording. It is your record and therefore your responsibility to facilitate it completeness.  
The court reporters and interpreters in our court are among the best of any court system. They have the arduous task of ensuring that information is properly communicated and recorded. If your case involves any of these professionals, PLEASE be mindful of their presence and speak clearly and at a reasonable pace to ensure that they can continue to provide the exceptional service they are known for in our court.  
Time Allocation  
I place great reliance on the time estimates from attorneys as to the length of any phase of the trial. When setting a trial or hearing, I ask for realistic time expectations rather than hoped-for parameters.  
It is my expereince that if there is a consistent short-coming as it relates to trial presentation, it is in the area of failure to edit. While all information may be relevant, that is not the same as concluding it to be necessary.  
Additionally, significant time can be preserved for actual presentation before the jury by having counsel confer before the start of any trial day to discuss exhibits that may be sought for introduction during that day’s proceedings. This routinely results in stipulations as to admissibility of numerous exhibits as well as a clear understanding of the basis for any objection.  
At least for direct examination of a witness, the attorney calling that witness should do his or her best to place in front of the witness all or most of the exhibits that counsel intends to cover during direct examination. The “choreographed” process of securing an exhibit from the exhibit desk, walking over to and placing it before a witness, returning to the lectern, asking questions, returning to the witness to retrieve the exhibit and then walking back to place exhibit on the exhibit desk for each individual exhibit becomes tiresome, time delaying and breaks the rhythm of the presentation.  
Bench Conferences  
I have a fairly liberal view as to the granting of a request for a bench conference. All I ask is that the frequency of requests not be abused and that during a bench conference, only one attorney speaks at a time so that a clear record may be made. It is likely that this will require the attorneys to speak into the one microphone that exists at the bench so patience and coordination is critical.  
Non-Disclosure Objections  
Unfortunately, it is not uncommon for an objection to be made during trial in which the claim is that information or documentation had not previously been disclosed. When that occurs, I maintain that the burden is on the offering party to establish that disclosure had been made. I strongly urge that as you prepare for trial, you include in your preparation the information of how and when disclosures were made. On the other hand, I disfavor attempts at ambushing the other party. If, in advance of trial, a party learns of information or evidence that the opposing party intends to present at trial that had not been disclosed, I expect that there shall be discussion between counsel before the evidence is attempted to be presented during the trial.  
Relevance Objections  
Frankly, these are difficult to decide mid stream as how the specific evidence may bear on the issues before the court is known to the parties but not the court and evolves over the course of the presentation. If a relevance objection is made, I will often ask for a bench conference since the jury should not be privy to a narrative about the specific evidence. Please be prepared to concisely explain how the evidence objected to relates to the issues before the court.  
Inquiries from the Bench  
I strive to be an active listener during oral arguments or other presentations to the court (but not in jury settings) and will take liberties in asking questions. While I will do my best to allow for all presentations to be completed as seen fit by the presenting attorney, I appreciate direct answers to any direct questions I might pose.  
Courtroom Etiquette I will always do my utmost to show respect to the court as a institution and ask that you do the same. That being said, I do not have strong preferences as to whether you present arguments from the lectern or from counsel table. Wherever you would be most comfortable is fine with me.  
Our court staff make this system work. In addition to showing them respect, please take a moment to get to know them and acknowledge their exceptional work. They deserve it.
Other Courtroom Policies and Recommendations My staff and I can better meet the needs of those who appear in our division by knowing whether what we are doing is effective. Please feel free to provide us with feedback or ideas as to how we can better meet our common objectives or the needs of the professionals and litigants who appear before us.