Protocol and Practice of Persons Appearing in the Court of Judge Jay Polk
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Specific Comments or Advice for LitigantsSpecific Requirements or Preferences • This profile is a work in progress; thus, preferences are subject to change without notice. Also, this profile is based on my current assignment, which is a Probate and Mental Health Court calendar downtown. My profile may change when my assignment changes.
• I am willing to work with counsel and the parties on procedures that will save the parties time and money.
• I expect all lawyers, regardless of their years of experience, and self-represented litigants to be familiar with, and follow, the applicable court rules. See Higgins v. Higgins, 194 Ariz. 266, 981 P.2d 134 (App. 1999) (holding that 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 often be confusing. For my purposes, a “trial” and an “evidentiary hearing” are the same thing: I will be receiving evidence to decide a disputed issue of fact. A “return hearing” is typically a short (15 minutes) 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.
Pre-Trial Practice and Management IssuesMotion Practice • Currently, e-filing is not available in probate and mental health cases. Consequently, lawyers and self-represented parties need to be sure that my division receives 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 very slow. Therefore, if you or your messenger delivers the division copy of a document to any court facility other the facility where my division is located (currently downtown), my division likely will not receive the document for several days.
• Citations should be double checked prior to filing and must include pin cites, directing the Court’s attention to specific pages of supporting authorities.
• All motions must adhere to the page limitations set forth in the court rules. If you believe the page limitation needs to be extended, you should file a brief explaining why.
• Generally, a single motion should not address more than two discrete issues; otherwise, the motion risks confusing the reader and diluting the arguments being made.
• 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.
• As a result of the time frames for responses and replies, do not file a motion to dismiss (or other dispositive motion) less than five (5) weeks before trial and expect it to be ruled upon before the trial.
• Oral argument should not be requested unless you intend to present information supplemental to what is in the written briefs. Oral argument will not automatically be granted. If oral argument is set, 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 that bears the Clerk of Court’s filing stamp indicating the date the document was filed). I can only act upon documents that have been filed with the Clerk of Court.
Discovery or Disclosure Disputes and/or Sanctions • In lieu of filing a motion to compel or a motion for protective order,
counsel may request a telephonic status conference to discuss a discovery dispute between two or more parties. Any such request should be made by e-mail sent to my Judicial Assistant with all other counsel of record (or a party who is self-represented) copied on the e-mail. The e-mail should state what type of discovery device (e.g., request for admissions, interrogatories, request for production of documents, etc.) is at issue, to whom the discovery device was directed, the date the discovery device was served, and the date the response was due. In addition, the e-mail should briefly describe the nature of the dispute without making any argument. For example, the e-mail may state that the party requesting the status conference is contending: (a) the other party has failed to respond to the discovery device, or (b) the response to the discovery device is incomplete or insufficient. Similarly, the e-mail may state explain any objection to the requested discovery. The purpose of the e-mail simply is to provide the other counsel/parties and me with a general idea as to the nature of the dispute. Upon receipt of the e-mail, I will determine whether to set a status conference or, instead, require the filing of a formal motion to compel or motion for protective order. THIS PROCEDURE SHOULD NOT BE FOLLOWED WHEN DISCOVERY IS REQUESTED FROM A NON-PARTY.
•If discovery is sought from a non-party (e.g., by means of a subpoena duces tecum), the party requesting the discovery should follow the procedure set forth in Rule 37, Arizona Rules of Civil Procedure, for any disputes pertaining to that discovery. See Ariz. R. Civ. P. 45(c)(5)(B)(ii).
• If I receive a motion pertaining to a discovery dispute, I first will check to make sure it contains the certification required by Rule 37(a)(1), Arizona Rules of Civil Procedure. If it does not, I generally will summarily deny the motion. If the motion does contain 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 file under seal. However, I typically will file documents that pertain to sensitive matters 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 • If the parties settle before trial, they should not assume that the Court will vacate any upcoming hearings or other court events. 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 court events can be vacated as a result of the settlement. 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 receipt of such information, I likely will vacate the upcoming court event(s) and set a deadline for submission of the settlement documents. Absent such information, I likely will either order the parties and counsel to appear in person to put the agreement on the record or hold a brief telephonic conference with counsel.
• I will not expedite oral argument or a ruling where it appears that the “need for speed” was caused by the moving party’s delay. I also generally will not put a matter ahead of other matters when the moving party could have filed the motion much sooner. Requests for accelerated/expedited rulings should be reserved strictly for unforeseen circumstances.
• Telephonic proceedings are encouraged, particularly for matters that do not exceed thirty (30) minutes and do not require testimony (other than testimony to place an agreement on the record).
Trial Practice and ProtocolJoint Pre-Trial Memo and/or Conference; Exhibits and Objections • Joint Pretrial Statements are required. Because the information contained in this filing is so important, separate statements are accepted if the parties cannot agree or are unable to work together. I would rather have two, separate pretrial statements than none at all.
• Exhibits must be timely submitted 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 party’s trial time.
• Parties should be judicious in the volume of exhibits they offer. Offer only those exhibits that are most relevant to your case, and do not make exhibits overly-voluminous. For example, if you subpoena twelve (12) months of bank statements, yet only one (1) month is necessary for Court review, just mark the one (1) month's statement as an exhibit. In addition, 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 that are submitted. This will avoid duplication of exhibits and the submission of extraneous 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 all exhibits are timely submitted (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 an exhibit worksheet be faxed to counsel prior to the hearing. 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,
• Bench copies of exhibits are appreciated. If the Bench copy is a tabbed notebook, with all exhibit numbers matching the actual exhibit numbers, all the better for the Court to follow the line of questioning, make notes, and speed up the proceeding.
• Parties and counsel are encouraged to make stipulations whenever possible (e.g. stipulated requests for continuances).
Trial Practice and Procedure • I am not adverse to the use of technology; however, my courtroom is not set up for technology. Courtroom Etiquette • Parties and counsel are reminded to silence all electronic devices before entering the courtroom. I do not mind if counsel or parties need to look at electronic devices to check their calendars when we are scheduling future court events, but the sounds of electronic devices (e.g., the ringing of a cellphone) is disruptive to court proceedings.
• Because the proceedings in my courtroom are being recorded, and everyone benefits from the preservation of a good record, I prefer that parties and counsel remain seated at the counsel table (rather than standing up at counsel table). If counsel (or unrepresented parties) prefer to stand when addressing the Court or a witness, I ask that they use the podium. To ensure a good record, regardless of where you are sitting or standing, please remember to speak into the microphone.
• Counsel do not need to request permission to approach their own witnesses; however, they should ask (once per witness) for permission to approach the other party’s witnesses, as well as the other party.
• Parties should not bring minor children with them to the courthouse as children are not allowed in the courtroom.
• Please be courteous to my staff; they work very hard and do their best to process all matters as quickly as possible. Other Courtroom Policies and Recommendations • When filing a motion to withdraw as counsel of record, counsel must comply with Rule 5.3, Arizona Rules of Civil Procedure. Pursuant to those rules, if a matter is pending and counsel has not obtained the client’s written consent to counsel’s withdrawal, I will not rule on the motion to withdraw until the time for the filing of a response has passed. In addition, if the motion does not bear the client’s written consent, counsel must be sure to serve a copy of the motion upon the client and reflect such service in the certificate of service.