Protocol and Practice of Persons Appearing in the Court of Judge Dewain Fox
Specific Comments or Advice for Litigants
Specific Requirements or Preferences
Welcome to Judge Fox's Division. Judge Fox is assigned to the Commercial Court in the civil department. We are located in the East Court Building. Our address is 101 West Jefferson Street, Suite 412, Phoenix, Arizona 85003. Our division phone number is (602) 372-2260.Melissa Alvarez is Judge Fox's Judicial Assistant. Her email address is melissa.alvarez@jbazmc.maricopa.gov.
Karina Garcia is Judge Fox's Courtroom Assistant. Her email address is karina.garciamunoz@jbazmc.maricopa.gov.
Judge Fox's Judicial Assistant and Courtroom Assistant cover for each other when one is not available. As such, if you need to communicate with our Division, please contact both the Judicial Assistant and the Courtroom Assistant using the above email addresses, and please be sure to include all other counsel or unrepresented parties on the email. Emails that do not comply with this requirement will not be read and will be deleted. Please do not contact Judge Fox directly, even if you copy other counsel on the email. When contacting the Division, please treat court staff professionally and with courtesy.
Pre-Trial Practice and Management Issues
Motion Practice
• No party should include more than one motion in a single filing or combine a response and a motion or a reply and a motion in one filing (with the exception of a true cross-motion for summary judgment). This applies to requests for attorneys' fees or sanctions. Such requests should be made by separate motion.• No party should file supplemental briefing without leave of Court.
• Page limits are enforced and should not be exceeded without leave of court.
• Motions in Limine should not be filed in bench trials without leave of Court. Absent leave of Court for good cause shown, each party may file no more than five Motions in Limine. Motions in Limine should address only matters that are extremely prejudicial and could result in a mistrial. Motions in Limine should not be filed on routine evidentiary matters. Motions in Limine asking the Court to enforce a particular rule of evidence should not be filed. Motions in Limine are to be no more than four pages in length and responses are no more than four pages in length. There are no replies.
• The Court will decide whether to grant oral argument when it is requested. If granted, oral argument should not be a regurgitation of matters in the briefs. Counsel can expect that the Court has reviewed the motion papers before oral argument. Counsel should be prepared for oral argument, as the Court likely will have questions for counsel.
• If the parties stipulate to a short extension for filing a response or reply, please advise the Court so we do not prematurely rule on the motion. For longer extensions that impact other deadlines in the case, please file a motion for extension. If the parties agree on the longer extension, the parties can file a joint motion or stipulation.
• E-filed documents do not instantaneously arrive in the Division's inbox. As such, if a party is seeking expedited relief or the filing pertains to a hearing less than four days away, counsel should email a courtesy copy of the filing to Division staff. You must copy all other counsel and unrepresented parties when emailing a courtesy copy. Emails that do not include the other parties will not be read and will be deleted.
• Judge Fox rules on motions through the eFile system when possible. As such, counsel are strongly encouraged to lodge a proposed form of Order in Word format when filing a motion through the eFile system.
• Under Seal Filings: When seeking to file a document under seal pursuant to A.R.Civ.P. 5.4, the filing party must: (i) e-file a motion to file the document under seal; (ii) submit a proposed form of Order sealing the document in Word format through the eFile system; and (iii) lodge the document to be sealed through the eFile system. The proposed Order sealing the document must specifically identify the document by title and date of lodging. The filing party also must simultaneously email an electronic copy of the document proposed to be sealed to the Division's staff. If the Court grants the motion to seal, the Clerk's Office will file the lodged document under seal.
Discovery or Disclosure Disputes and/or Sanctions
• The Court generally follows Civil Rule 26(d). The Court's dispute resolution procedures outlined below shall apply to the following circumstances: (1) the parties have a discovery dispute that needs to be addressed; (2) one party seeks to compel another party to take some action; or (3) a party intends to seek sanctions against another party. Under any of these circumstances, counsel must personally speak to each other and engage in good faith attempts to resolve the dispute. If they cannot do so, the parties must file a "joint statement of discovery or disclosure dispute" and provide a copy to the Division's Judicial Assistant.• The joint statement must not exceed three pages and must contain a certificate of good faith consultation. A letter or email to the opposing attorney threatening to file a discovery motion if he or she does not respond does not, without more, satisfy the personal consultation requirement under the rules. No exhibits shall be included with the summaries. If, after reviewing a summary, the Court determines that it needs additional documents, division staff will contact the attorneys.
• The Court's Judicial Assistant will contact the parties to schedule a virtual conference.
• The Court expects counsel to resolve most discovery matters without the need for judicial intervention.
Other Pre-trial Practice Guidelines or Comments
• Injunctive Relief: Judge Fox rarely grants TROs without notice. When a party seeks a TRO or a preliminary injunction, the Court typically will set a short return hearing by an Order to Show Cause. The Court will not receive evidence at the initial return hearing. Rather, that hearing will be used to ascertain the parties' positions, narrow the issues where possible, and schedule further hearings when necessary.Trial Practice and Protocol
Trial Schedule
• Jury trials usually are scheduled Mondays through Thursdays from 9:30 a.m. to 4:30 p.m. The lunch break typically is from 12:00 p.m. until 1:30 p.m. The Court generally takes one 15-minute break in the morning and another in the afternoon, especially if a court reporter is present.• Absent extraordinary circumstances, the Court typically will hold parties to time limits set during the Final Trial Management Conference.
Joint Pre-Trial Memo and/or Conference; Exhibits and Objections
• Exhibits: This Division uses Case Center, a state-wide electronic exhibit portal. All exhibits must be submitted electronically through Case Center. Case Center will automatically number the exhibits. Counsel should use the exhibit numbering shown in Case Center for any exhibit notebooks and trial presentation software because the Case Center exhibit numbers will be used for the official record.When the case has been initiated by the Clerk of Court, the attorney of record will receive an email invitation to the case created in Case Center. The attorney of record is responsible for inviting through Case Center any co-counsel or staff who need access to the case. Please register for an account here: https://digitalevidence.azcourts.gov. Further information about Case Center and training materials can be found at:
https://www.azcourts.gov/digitalevidence/Digital-Evidence-Information.
Generic descriptions only may be used to describe exhibits in Case Center. Exhibits must be appropriately titled. Any exhibit title containing derogatory or prejudicial information will be renamed by the Clerk. Please do not include exhibit numbers in the exhibit titles. If large charts or blow-ups are anticipated to be used, please include a small version (or photo) which can be marked as the exhibit. The charts and blow-ups are used for demonstrative purpose only, are not marked as the exhibits, and are returned. The Court, Clerk, and all counsel and self-represented parties will have access to the exhibits through Case Center. The Court will not have paper copies of exhibits available for witnesses. Counsel may use the Case Center presentation software or may use their own trial presentation software to present exhibits to witnesses and the jury, as long as counsel can avow that the exhibits they present are true and accurate copies of the Court’s exhibits.
At the Final Trial Management Conference, the Court will set a deadline for submitting exhibits through Case Center. This is a firm deadline, and late exhibits presumptively will be excluded. Counsel are expected to confer to remove all duplicate exhibits.
• Final Trial Management Conference: The Court will hold a Final Trial Management Conference about 30 days before trial begins. Counsel should be prepared to address time limitations, proposed jury instructions, proposed voir dire, the jury questionnaire, and any other matters pertaining to the trial.
• Before the Final Trial Management Conference, all jury instructions, proposed voir dire, joint statement of the case (to be read to the jury) and deposition designations should be emailed in Word format to the Division's staff.
• Joint Pretrial Statement: The trial-setting order will require the parties to file a Joint Pretrial Statement containing the information required under Arizona Rule of Civil Procedure 16(f)(2), with one material modification. The Court's standard order waives the requirement under Rule 16(f)(2)(A), (B) and (C) to include a list of stipulations, agreed contested issues or other issues considered material. Rather, the order will require the Joint Pretrial Statement to contain a list of all claims or causes of action on which a verdict is sought by any party, specifying (1) the cause of action, (2) each party asserting that cause of action, and (3) each party against whom that cause of action is asserted. The parties also may submit one or more separate stipulations regarding facts, evidence or other matters.
• Motions in Limine: See discussion under Pretrial Motions.
Jury Selection
• Judge Fox generally uses electronic juror questionnaires for the jury selection process. The parties may submit proposed questions to be included. The electronic questionnaire will be made available to counsel to review before jury selection begins.• As soon as all potential jurors have submitted their responses to the questionnaire, Judge Fox will meet with counsel on the record in the courtroom to review the responses and determine which jurors may be excluded based on their responses. The remaining jurors will be brought to the courtroom for voir dire.
• The length of the Court's oral voir dire will vary depending on the length of the jury questionnaire. After the Court completes its oral voir dire, the parties will be given an opportunity to ask follow-up questions of the panel. Judge Fox uses the "struck" method of jury selection with all jury panel members who were not removed based on the questionnaire participating in the oral voir dire.
• Counsel are reminded that, effective January 1, 2022, Arizona law no longer permits peremptory strikes. All juror strikes will be based on hardship or cause. The party seeking to strike a juror for cause bears the burden of establishing cause by a preponderance of the evidence.
Trial Practice and Procedure
• Electronic Equipment: Judge Fox's courtroom has electronic equipment, which counsel are encouraged to use. Counsel should make an appointment before trial with the Division's staff to ensure device compatibility and they are comfortable using the equipment. If counsel's equipment does not work with the Court's equipment during trial, Judge Fox will not inconvenience the jurors with an extensive delay to resolve the problem.• Objections: Counsel must stand to make an objection. Objections should be short and succinct. Judge Fox does not allow speaking objections. If the Court wants a response or further discussion, the Court will ask for it.
• Bench Conferences: Bench conferences should be used sparingly, and not all requests for bench conferences will be granted. Bench conferences are conducted with Williams sound equipment, which allows counsel to remain at their tables and communicate with the judge using headphones. Bench conferences are on the record and will be captured by the court reporter and/or the audio-visual recording equipment.
• Counsel Positioning in Courtroom: Plaintiffs will be seated at the tables closest to the jury box. Counsel should stand at the table or at the podium when addressing the Court. During trial, counsel may move about the well of the courtroom, except that counsel must ask permission to approach a witness.
• Timing: Counsel should track their allotted time during trial. If there are questions about remaining time, counsel may inquire of the Court or Court staff.
• Making A Good Record: One of a trial court's most important responsibilities is making a good record for appellate review. It is essential to a good record that trial participants not speak over one another. Judge Fox enforces this rule strictly.
Courtroom Etiquette
• Virtual Hearings: Many of our hearings are conducted virtually. Counsel and the parties are reminded that, even though these proceedings may seem more informal than an in-person proceeding, these still are court proceedings. Counsel should wear appropriate attire, conduct themselves as professionally during a virtual hearing as they would during an in-person hearing, and have an appropriate background. Judge Fox does not permit virtual appearances while driving. It is extremely important during virtual hearings that participants not talk over one another. If you cannot see or hear, or you believe you are not being seen or heard, immediately contact the Division's staff so the problem can be remedied.• Promptness: Absent extraordinary circumstances, Judge Fox starts all hearings promptly at their scheduled time. All participants are expected to be present and ready to proceed at the scheduled time whether appearing virtually or in person. Finding a place to park is not an extraordinary circumstance.
• The Court expects lawyers to treat each other, opposing parties, court staff and everyone with respect.
• The Court expects counsel to assist the Clerk in making sure all exhibits are returned and organized at the end of the day.