Protocol and Practice of Persons Appearing in the Court of Judge Mark H. Brain


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Specific Comments or Advice for Litigants

Specific 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 Issues

Discovery 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 Protocol

Trial 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. Courtroom Etiquette Counsel may stand or sit while addressing the court and questioning witnesses. As a general proposition, counsel is welcome to approach the witness as appropriate with exhibits without seeking leave of court.  
 
Louder is not better--remember to use your "inside voice."  
 
Objections should be short, such as “Objection, relevance,” or “Objection, hearsay.” Speaking objections are strongly discouraged.
Other Courtroom Policies and Recommendations I appreciate bench books with the exhibits; as the finder of fact, nothing is more frustrating than being the only person in the courtroom without a copy of the pertinent documents so that I can follow the testimony.