Protocol and Practice of Persons Appearing in the Court of Judge Mark H. Brain
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Specific Comments or Advice for LitigantsSpecific Requirements or Preferences It is useful to know your audience. In that regard, I spent 18 years as a civil litigator, handling both commercial and personal injury disputes. Upon joining the bench, I spent 4.5 years at juvenile court, handling delinquency and dependency cases. I then spent 4 years on a civil calendar and 4 years on a criminal calendar. I am comfortable with scientific and technical matters, having been awarded a B.S. in Physics.
My courtroom operates under two rules which admittedly are not part of the Rules of Family Law Procedure, but are among the best rules ever written. First, Rule 6 of the Rules of Procedure for the Juvenile Court provides that proceedings "shall be conducted as informally as the requirements of due process and fairness permit..." Second, former Rule 80 of the Arizona Rules of Civil Procedure provided, "Trials shall be conducted in an orderly, courteous and dignified manner. Arguments and remarks shall be addressed to the court, except that by permission of the court counsel may make proper inquiries or ask questions of opposing counsel."
Pre-Trial Practice and Management IssuesDiscovery or Disclosure Disputes and/or Sanctions Meet and confer: I expect the parties to take the “meet and confer” requirement seriously. It does not mean exchanging nasty letters or e-mails; it means that counsel (or self-represented parties) shall have a civilized discussion about the issues. I have found that counsel can often work out discovery issues if each will not only voice their own concerns, but listen to the other side’s concerns with an open mind. Don’t contact me until you have made a good-faith effort.
Judicial intervention: Most discovery disputes can be resolved in a simple phone call, without the costs and delays associated with paperwork. Accordingly, I encourage people to call my judicial assistant to set up a telephonic conference to resolve such issues—the worst I can tell you is that it’s too complicated to handle that informally. Use your best judgment.
Filings under seal: Use these sparingly. First, the presumption is that court records are open to the public. Second, when something is filed under seal, it isn’t just kept from the public; it’s also a time-consuming headache for the judge to get access to it.
Discovery motions: If you’re filing a discovery motion, remember Local Rule 3.2(h)’s requirement of a separate document setting forth the request, the response, and the reason the response is insufficient. If this document is prepared correctly, the motion itself often only needs to be a couple of pages long.
Trial Practice and ProtocolTrial Schedule Out of necessity, I impose time limits on litigants. If you have a three hour hearing (i.e., 9:00 to noon or 1:30 to 4:30), you should anticipate dividing the time equally after allocating 10 minutes for a break and 10 minutes for any questions I may have. Trial Practice and Procedure Given the current pandemic, I have begun handling virtually everything by virtual meeting. It has worked well (with rare exceptions, and in those instances, we stop and regroup so everyone gets a fair hearing). There have been attorneys who are resistant. I understand that, but that's what we're doing.
Opposing attorneys filed a joint motion claiming that they couldn't possibly proceed virtually due to exhibit issues. I penned the following before deciding that perhaps I should be a little less strident. It fairly (if sarcastically) sets forth my view:
"As to counsels’ claim that they cannot effectively utilize exhibits without everyone being in the same courtroom, the Court calls to their attention some recent developments. Specifically, in the late 1890’s, Edwin G. Bates developed and patented his Automatic Numbering Machine. It allows the user to place a discrete, unique identifying mark on each page of a document. And in 1938, Chester Carlson had his historic breakthrough in his quest to invent electrophotography, which he later named xerography. It was a vast improvement over earlier copying technologies, such as the Gestetner Cyclograph of the 1870’s. Carlson obtained a patent in 1942. Using his technology, the Haloid Company began shipping the XeroX Model A Copier (aka the “Ox Box”) in 1949.
"There are reports that this technology has caught on, and been improved upon, in the ensuing years, albeit with slightly different names: Bates Stamp and photocopier. A legally-trained mind really ought to be able to figure out a way that such technology could provide useable copies of the exhibits to each participant in the upcoming trial. Counsel are directed to explore the possibilities and report back."