Protocol and Practice of Persons Appearing in the Court of Judge Michael Herrod

Pre-Trial Practice and Management Issues

Motion Practice

• All pleadings must be e-filed. My division should be copied directly only on emergency measures. Citation links within pleadings are appreciated if technologically feasible. Motions should be single subject over omnibus. If motions contain out of state cases, that party shall provide the Court with copies of those cases. All documents and pleadings shall be delivered to opposing counsel on the date they are filed with the Court.  
• Given the volume of work pending before this Court, it is impossible to set every motion for oral argument. Oral argument determinations are made after review of the pleadings and scheduled only if necessary. I tend to ask questions during oral argument in an effort to clarify the nature of the arguments.

Discovery or Disclosure Disputes and/or Sanctions

• Counsel and/or the parties are to meet personally to discuss all of the matters set forth in Rule 16(b), Ariz. R.Civ.P. Counsel and/or the parties shall prepare and file with the Court a Joint Proposed Scheduling Order, for discovery, motion and disclosure deadlines. The Court will review the proposed Scheduling Order. If all is in order, the Court will set a status conference close to the discovery cutoff date.  
• Within three (3) days prior to the Status Conference, the parties shall submit a written Joint Notice of Statement of the Case, indicating the status of the case, compliance with deadlines, issues that have been resolved, and issues still in need of resolution. At the status conference, if the parties have completed discovery and are ready for trial, the Court will set firm dates for the final pretrial management conference and the trial. If the parties are not ready for trial, and there is no good cause, the matter will be placed on the Inactive Calendar for dismissal within sixty (60) days.  
• Please note pretrial scheduling conferences are held telephonically. It is important parties refrain from using cell phones or speaker phones, or from generating excess background noise during the telephonic proceeding, as it impacts the recording of the event.  
• In accordance with Rule 1, Ariz. R. Civ. P., this Court is open to resolving minor disputes, raised during deposition, over the phone. However a motion to compel will not be honored, unless parties make every effort to speak with each other. Civil Rule 37(a)(2)(c) provides that an exchange of correspondence is not sufficient to satisfy the “personal consultation” requirement of the Rule, except in extraordinary circumstances. At a minimum, counsel must speak to each other by telephone to attempt to resolve the dispute in good faith before involving the Court.  
• Filings under seal are discouraged. There must be a significant reason to shield records from public view and to create administrative hardships for court access via such designation.  
• Attorneys who habitually ignore the rules will be sanctioned.

Trial Practice and Protocol

Trial Schedule

• Trials days in this division are scheduled Monday-Thursday from 9:30a.m.-4:30p.m., with a brief recess held in the morning and afternoon. Lunch is 12:00p.m.-1:30p.m.  
• This Court appreciates being notified as early in the process as possible of unique scheduling issues.  
• Time estimates from counsel are heavily relied upon. However, once a jury trial is set for a certain period of time, no extra time will be allocated.  
• Generally, witnesses may be called out of order in an effort to accommodate witness’ schedules.  
• Additionally, a recording of the proceeding will be made by audio and CD in lieu of a court reporter. Litigants may obtain copies of a recording through administrative personnel at their expense. If a court reporter is required, the Court must receive a written request at least (3) court days before the commencement of the proceeding. Failure to timely request a court reporter will be deemed consent to proceed without a court reporter.

Joint Pre-Trial Memo and/or Conference; Exhibits and Objections

• In accordance with Rule 16(d), A.R.C.P., a Joint Pretrial Statement is due five (5) days before the Final Trial Management Conference. The preparation of the Statement must comply with the Rule. Additionally, counsel are to identify all deposition or other transcribed testimony that may be offered at trial. The proposed testimony is to be identified by reference to page and line numbers. Objections, if any, to such testimony, and the reasons for such objections, are also to be set forth. The Pretrial Statement should include any stipulations, a list of witnesses and exhibits, the number of jurors, among other matters to be reviewed with the parties.  
• The parties should also file proposed voir dire questions, and proposed jury instructions.  
• Please note the parties must appear in person at the Final Trial Management Conference. Counsel must advise the Court of any need for an interpreter at the Final Pretrial Management Conference.  
• Counsel shall present all exhibits with a list of exhibit descriptions to the Clerk of the Court no less than ten (10) judicial days before trial. The exhibits will be marked serially as they are listed in the pretrial statement – Plaintiff’s first, Defendant’s second. Counsel shall make sure that the clerk does not receive duplicate exhibits from either party. Counsel shall also present original depositions for filing at that time. Depositions are provided for the record and are not to be marked as an exhibit.  
• Jury notebooks are allowed if all of the exhibits have been admitted or stipulated to, but it is preferred counsel include materials into the notebooks the court provides the jury.  
• Speaking objections will not be recognized.  
• Motions in limine are due no less than thirty (30) days prior to the Final Pre-Trial Management Conference and will not be heard until the pre-trial conference, especially if the case is dispositive. The primary purpose of a motion in limine is to avoid disclosing to the jury prejudicial matters which may compel a mistrial. Written responses to a motion in limine may be filed no later than ten (10) days after receipt of such motion. There are to be no replies. Counsel shall meet and confer to identify disputed evidentiary issues that are anticipated to be the subject of motions in limine.

Jury Selection

• The struck method is followed for jury selection.  
• Attorneys are given approximately fifteen (15) minutes for questioning after I conduct voir dire. This Court will terminate voir dire immediately upon any attorney arguing his/her case, seeking commitments, interjecting prejudicial or irrelevant matters or wasting time during this process. Voir dire is limited to questions revealing attitudes, biases and beliefs that cannot be overcome with rehabilitation.  
• I will consider jury questionnaires in appropriate cases with adequate advanced notice.  
• It is appropriate for alternate jurors to deliberate.

Trial Practice and Procedure

• Technology is available for use within the courtroom. Counsel should prepare ahead for trial, surveying the courtroom for technological purposes, so as to ensure that the use of technology during any given proceeding will not cause delays.  
• It is common for me to ask the jury panel if they desire to speak with counsel at the close of a trial.

Courtroom Etiquette

• Electronics should be silenced, at a minimum, but preferably turned off during trial.  
• When presenting, litigants may speak from the podium or the counsel table, wherever is more comfortable.  
• Litigants must always be courteous; treat my staff as you would treat the Bench. Discourteous behavior results in negative consequences.  
• All discussion must be directed through the Bench.