Protocol and Practice of Persons Appearing in the Court of Judge David Gass
Specific Comments or Advice for Litigants
Specific Requirements or Preferences
GENERAL INFORMATION (This Profile was updated October 14, 2016)Please be professional. I expect attorneys and litigants to treat everyone in the courtroom with respect. I will do the same.
For folks who are representing themselves, television court shows are entertainment. Real courtrooms work differently. I will not tolerate shouting matches or disrespectful behavior. The courtroom is a place where we resolve our disagreements in a civil and polite manner.
Always be polite and professional with court staff. You should treat them as you would me. If you would not say something to me, do not say it to them. If you would not do it to me, do not do it to them.
PROMPTNESS:
Please be on time. If you are late, remember that you owe the others in the courtroom an apology regardless of the reason. It is not our fault that you are late. If you are going to be late, please check in and let my staff know that you are aware of your hearing and give us an idea of when you will arrive. I may choose to have you appear telephonically rather than further delay others.
PREPAREDNESS:
Please be prepared. I will prepare for every hearing. In that regard, please give me the tools to prepare, such as a joint pretrial statement, proposed voir dire, and proposed jury instructions.
If you need to contact my division, my Judicial Assistant is Lena. You can reach her at 602-372-3592. Her email is ldupuis@superiorcourt.maricopa.gov.
EARLY AND REGULAR JUDICIAL INVOLVEMENT:
I believe early and regular judicial involvement moves most cases along and keeps matters on track. If the parties want a conference, I will set one up. I also will schedule conferences on my own motion if I sense that an issue has arisen that is disrupting an orderly case flow. I will engage the parties in a dialogue about how the case is moving and what I can do to make sure that the case flows smoothly so that the parties can reach a timely and fair resolution.
PRE-TRIAL PRACTICE AND MANAGEMENT ISSUES:
1. I am willing to conduct phone conferences if it will help the parties avoid the cost and delays of filing motions. If all parties agree that I can resolve an issue fairly and quickly with a telephonic conference rather than ruling on a motion, please contact my Judicial Assistant, Lena, to schedule such a conference.
2. I actively manage the cases on my docket. Most civil cases should resolve or be ready for trial between twelve and eighteen months of filing. If a case is more than two years old and is not ready for trial, I will become more active in managing it.
3. E-filed documents may be delayed by as much as twenty-four hours. If you have a motion or request that you would like to be addressed immediately, please email it to my Judicial Assistant, Lena. If you file a document less than three days before oral argument or a court hearing, please send it to my Judicial Assistant, Lena, so that I can review it well in advance of your court appearance.
4. I generally set firm trial dates. For trials of a week or so, I generally get them scheduled within six months of the trial scheduling conference. Often I can get cases in earlier, depending on the availability of the parties and counsel. You should expect to see the case go to trial on that schedule. As a final note, I do not continue trials unless there is good cause to move the trial date. Good cause does not include poor planning or scheduling conflicts that the lawyers or the parties create themselves.
Pre-Trial Practice and Management Issues
Motion Practice
MOTION FORMAT:Motions, responses, and related pleadings must comply with the length and other requirements of the rules.
I enforce page limits specified in the rules. If you want to exceed the specified page limit, you should file that motion and request accelerated review timely so that I can rule on it before your filing deadline.
If a motion and attached exhibits exceed 25 pages, please provide the court with a hard copy.
DO NOT COMBINE a response or a reply to one motion with a new motion for affirmative relief, even if on a related topic. Because of electronic filing, we can track the single filing only as a response, as a reply, or as a new motion. Motions for affirmative relief must be filed separately from responses and replies.
PROPOSED FORMS OF ORDER AND JUDGMENT:
When you file a motion or stipulation, you must provide a proposed form of order in MSWORD format.
If you file the motion electronically, attached the proposed form of order as provided in the e-file system. If you do not file the motion electronically, you must email the proposed form of order to my Judicial Assistant, Lena.
ALL PROPOSED FORMS OF ORDER MUST BE SUBMITTED IN MSWORD FORMAT SO THAT I CAN EDIT THEM AS NECESSARY.
MOTIONS TO STRIKE:
I discourage motions to strike, especially if the party can make the point in a responsive pleading.
If you file a motion to strike, it must be in a stand-alone pleading that cannot exceed two pages. A response is due within five days, and the response also cannot exceed two-pages. Do not file a reply unless one is ordered.
A motion to strike does not extend the deadline to file a responsive pleading.
MOTIONS TO DISMISS:
I rarely grant motions to dismiss because the standard for granting a motion to dismiss is quite high.
Arizona is a notice pleading state. To determine whether a complaint states a claim on which relief can be granted, I must assume that all well-pled allegations are true and draw all reasonable inferences from those alleged facts. I must deny a motion to dismiss unless the opposing party would not be entitled to relief under any interpretation of the facts susceptible of proof.
I will consider that standard when I review a motion to dismiss. Please consider that high standard when you are making a decision about whether to file a motion to dismiss.
MOTIONS FOR SUMMARY JUDGMENT:
I do not have set limit on the number of motions. However, please use common sense. I will exercise my discretion to set limits if the parties begin filing repetitive or meritless motions.
Motions for summary judgment should be filed in a clear and organized manner. You should file one combined motion for summary judgment on different issues when appropriate.
1. If you are going to file more than one motion for summary judgment, identify the issue in the caption and also the number, such as Plaintiff's Motion for Summary Judgment No. 1 re ______.
2. When responding to multiple motions, file a separate response to each motion and identify it as a response to the specific motion, such as Response to Plaintiff's Motion for Summary Judgment No. 1 re ______.
3. File only one consolidated statement of facts for all motions that are filed at the same time. The consolidated statement of facts must conform to the directions I give below even if you file more than one motion for summary judgment.
4. Do not combine responses to summary judgment motions and cross-motions for summary judgment. When responses and cross-motions are combined, it becomes almost impossible to track them in our electronic system. For that reason:
5. If you are filing cross-motions for summary judgment, file them in a separate pleading. Please identify the issue in the caption and also the number, such as Defendant's Motion for Summary Judgment No. 2.
6. File only one consolidated statement of facts for all cross-motions that are filed at the same time. The consolidated statement of facts must conform to the directions I give below even if you file more than one cross-motion for summary judgment.
7. Statements of fact must be presented in concise, numbered paragraphs, preferably with one fact per paragraph. Each paragraph must include citations to evidence supporting that fact.
8. Statements of fact should not contain any assertions that amount to arguments, opinions, or inferences.
I. Do not file controverting or supplemental statements of facts with your reply.
Discovery or Disclosure Disputes and/or Sanctions
DISCOVERY PRACTICE:To save the parties time and money, I will do teleconferences to resolve simple discovery responses. All parties must agree that the issue can be resolved in a short teleconference. Please contact my Judicial Assistant, Lena, at 602-372-3592, if you have such an agreement. She will work with you to schedule a teleconference. Remember that the party requesting the teleconference is responsible for having all parties on a single phone call before calling the court.
Do not file a motion unless you have satisfied your obligation to personally consult in an attempt to resolve a dispute before raising it with the court. Personal consultation means either an in-person conference or a telephone conversation. I take Rule 37(a)(2)(C) seriously: Counsel must work in good faith to resolve a discovery dispute before bringing it to the court. You must demonstrate your good faith efforts.
Here are some general guidelines:
1. If you must file a motion, please file it timely.
2. Discovery requests and discovery objections should be case specific.
3. I discourage laundry lists and canned requests and objections that are not related directly to the case.
4. I expect the parties to produce documents that are not in dispute. By way of a hypothetical example, if a plaintiff thinks defendants request is overbroad because it asks for ten years of documents and takes the position that five years of documents is appropriate, then I expect that before the parties appear at the hearing, plaintiffs will have produced those five years of undisputed documents.
5. An objection must be based on the law. As an officer of the court, do not raise an objection just because your client does not want to give up a document. If you cannot articulate a good faith argument to justify the objection, do not make the objection.
6. I encourage parties to use their common sense. The rules on what is and what is not discoverable are well-established. There are few close calls.
7. Always consider whether a protective order would help resolve the issue and propose one if it will.
DISCOVERY HEARING
If I order a hearing on a discovery dispute, I will address each discovery request and the related objection in detail. I will expect you to defend your request and your objection. At the end of your first hearing, you will understand my approach to discovery disputes. I expect that going forward, most disputes will be resolved.
RESPONSE TO PRIVILEGE OBJECTIONS:
If you object to discovery based on a privilege, you must provide a detailed privilege log that complies with the Ariz. R. Civ. P. Be sure to identify the specific privilege on which you are relying.
1. Privilege disputes are discovery disputes. Be sure to comply with the requirements for a discovery dispute.
2. If you ask for an in camera review, file an appropriate motion but do not provide the documents for review until I grant the motion. In your motion, identify the exact number of pages you are asking me to review.
Other Pre-trial Practice Guidelines or Comments
FILINGS UNDER SEAL:I discourage filing under seal. I deny these requests far more often than I grant them because the judicial process is designed to be open to the public and transparent. If you do request that something be filed under seal, please cite the appropriate rule and the factual basis for sealing the record.
Because I must make specific findings before I can justify sealing the record, I will not accept stipulations to file under seal.
SANCTIONS: I rarely impose sanctions but will do so if appropriate.
REQUESTS FOR ATTORNEY FEES:
I consider each request on its own merits. I will consider the amount of requested fees as they relate to the issues in the case.
Parties and attorneys should use their common sense in terms of their investment in a case. I generally will not order large fee awards when a party over litigates a matter.
SETTLEMENT CONFERENCES/ADR:
Except in rare instances, I require the parties to participate in a mediation or a settlement conference before trial.
If both parties agree and waive any conflict, I will do my own settlement conferences before trial even if previous efforts at settlement have failed.
REQUESTS FOR EXPEDITED/ACCELERATED CONSIDERATION OR EXTENSIONS AND THE ROLE OF STIPULATIONS:
You must request accelerated or expedited review if the standard briefing schedule will extend beyond the time in which you need a ruling.
I will not accelerate or expedite my review on my own motion; you must request accelerated review.
I will not grant accelerated or expedited review if the issue has become emergent because of a delay in requesting relief.
SCHEDULING:
I try to schedule hearings promptly and at a time convenient to the parties.
You likely will receive an e-mail from my Judicial Assistant, Lena, asking if you are available on a certain date. Please respond promptly.
If a last-minute conflict arises and you need to continue a hearing, file a motion to continue the hearing with a request for expedited ruling. Because of delays in our e-file system, you must email a copy to my Judicial Assistant, Lena.
EXTENSIONS:
I generally will grant a requested extension that is of an appropriate length. If the party opposes an extension based on prejudice, I expect the party to articulate the specific prejudice. A general assertion of prejudice without more is not persuasive and I discourage it. If your client will be prejudiced by a short delay, tell me how.
If you need an extension to file a response or reply, try to reach agreement. If the parties agree to a brief extension (two weeks or less), you may e-mail my Judicial Assistant, Lena, confirming the extension in lieu of filing a formal motion or stipulation. For longer extensions (more than two weeks), you file a stipulation.
If you need to extend dates in the scheduling order, timely file a motion or joint motion explaining the reason for the extension along with a proposed scheduling order in MSWord format.
Trial Practice and Protocol
Trial Schedule
REGULAR DAYS AND HOURS OF TRIAL, BREAKS, AND LUNCH:
Friday is my law and motions day. We start as early as 8:45 a.m.
Monday through Thursday, I will schedule short status conferences and hearings between 8:45 a.m. and 9:30 a.m.
Monday through Thursday, I do trials between 9:30 a.m. and 4:30 p.m. We take a lunch break from noon until 1:30 p.m. We take a mid-morning and a mid-afternoon break at an appropriate time depending on what is happening in the trial.
We finish no later than 4:30 p.m. My staff use public transportation and must leave on time.
I CLOSE THE COURTROOM OVER LUNCH. My staff need the break and cannot remain in the courtroom throughout the break. In addition, food odors tend to linger in the enclosed space of a courtroom. My staff will reopen the courtroom approximately fifteen minutes before the trial resumes. Please plan accordingly.
Joint Pre-Trial Memo and/or Conference; Exhibits and Objections
PARTY ACCOMMODATIONS:We will provide all reasonable accommodations. Please give us advance notice of the needs.
If you require accommodations that you believe qualify under the ADA, please contact my Judicial Assistant, Lena, at 602-372-3592. She can email you the appropriate form to make a formal request for such accommodations.
MARKING EXHIBITS:
Coordinate all exhibits with my clerk.
I will set the deadline for submitting exhibits when I schedule the trial.
My clerk must mark each exhibit and enter it in the computer. It takes time. You must submit your exhibits timely or they may not be marked.
1. Once marked, you cannot swap out or change an exhibit. If an exhibit needs to be redacted or otherwise changed, you will need to submit a new exhibit, which we will be added at the end of the exhibit list and numbered accordingly.
2. You cannot create placeholders for exhibits. The exhibits you provide will be consecutively marked. If you submit more exhibits later, they will be added at the end of the exhibit list and numbered accordingly.
JURY INSTRUCTIONS:
Counsel must provide proposed jury instructions in MSWord format with the joint pretrial statement.
I will put together my draft based on my review, which my Judicial Assistant, Lena, will send to you. We will discuss any revisions early in the process so as not to delay the trial. The only issues that I will leave to the end of the trial are those instructions that depend on the evidence that is introduced.
If a RAJI calls for case specific changes, the parties must provide the proposed language.
If available and the parties request, the court will provide examples of jury instructions that the court has used in previous cases that involve similar legal issues. For example, if the parties have a damages only tort case, the court can provide some examples of jury instructions for such a case.
VERDICT REQUIREMENTS:
To protect the privacy of our jurors, I have each juror sign verdict forms using the jurors number and the jurors initials. I do not have the jurors include their name.
MOTIONS IN LIMINE:
I will set a deadline for motions in limine when I set the trial. Unless I authorize a reply, do not file one.
To the extent possible, I will resolve motions in limine at the final pretrial conference. If the parties agree that they will need more time to argue the motions in limine, they should contact my Judicial Assistant, Lena, immediately.
JUROR NOTEBOOKS:
I encourage you to consider whether a notebook would assist the jury.
Many cases do not require juror notebooks. However, when the trial will be longer and the issues are document driven, juror notebooks can be an effective tool for all sides.
Jury Selection
VOIR DIRE PROCESS:I use the struck method. I will have the entire panel answer all questions.
Counsel must provide proposed voir dire with the joint pretrial statement. I will put together my draft voir dire, which my Judicial Assistant, Lena, will send to you. We will discuss any revisions before the venire panel comes in. I will ask most of the questions to the venire panel.
I allow attorneys to ask up to three question to the venire panel. The questions must be yes or no questions such that if the jurors answer is yes, the attorney may choose to follow up with that juror. I will not allow questions that call for a narrative from each juror.
As discussed above, within reason, I will give you the time that you tell me you need to voir dire the venire panel. I will hold you to that time.
I generally do not allow mini-openings.
In appropriate cases, I will use a jury questionnaire. Before administering the questionnaire, I will go through hardships with the venire panel before. All questions to the venire panel must be covered in the questionnaire. The parties must review the completed questionnaires and confer about stipulated strikes for cause. For the remaining jurors, I will allow individual voir dire based on that jurors responses to the questionnaire.
METHOD FOR CHALLENGING OR EXCUSING A JUROR FOR CAUSE:
After I have covered my hardship questions, I have counsel approach to discuss the jurors that I will release for hardship.
Before I have the jurors answer the standard questions regarding marital status, employment, children, and past juror service, I have counsel approach to discuss the jurors that I will release for cause at that point.
After the voir dire by counsel is complete, I will excuse the jurors for a break to allow us to talk with any jurors privately and to discuss any other strikes for cause.
I will begin by identifying each juror who I believe meets the cause standard. If the parties agree on a juror, I strike the juror. If the parties disagree, I hear argument and I may allow additional individual voir dire. I then have the attorneys identify any additional proposed strikes for cause. I handle them as outline above.
ALTERNATE JUROR PRACTICES:
Except for stipulated one-day trials, I will have at least one alternate juror.
If the parties stipulate to allowing the alternate or alternates to deliberate, we will do so. I have no bias one way or the other. It is up to the parties and their counsel.
Otherwise, we will select alternates by lot using an antique bingo ball cage with numbered balls.
Trial Practice and Procedure
RELIANCE ON ATTORNEY TIME ESTIMATES.I try to give the parties the time they need to present their case or their argument. In that regard, be prepared to tell me how long you need and expect that I will hold you to the time.
For voir dire, I generally will allow attorneys to ask up to three questions to the panel and then do individual follow up on all the questions that I have asked. Be prepared to tell me how long you will need to do your voir dire so that we build it into the trial schedule. I generally will accept the amount of time you ask for unless it is not proportionate to the trial length and trial issues.
I expect counsel to estimate the amount of time that they need to present their case, including openings, closings, and witness examinations.
1. I will plan the length of the trial accordingly and will clear the jury for that time. I, therefore, will hold counsel to those limits.
2. Counsel should work together to be sure that witnesses are scheduled appropriately to minimize any downtime during the trial because of witness unavailability.
BENCH TRIALS
You may request findings of fact and conclusions of law when appropriate. To request findings of fact and conclusions of law, you must file a written request with the court before the trial or the evidentiary hearing. If you make a written request before the trial or evidentiary hearing, the court will make findings of fact and conclusions of law as part of the final decision.
If any party asks the Court to make findings of fact and conclusions of law on any issue, each party must file written proposed findings of fact and conclusions of law on those issues. The proposed findings of fact and conclusions of law also must be submitted in an electronic form that is editable, preferably Microsoft Word. The proposed findings must be submitted with the Pretrial Statement.
For bench trials, please provide a bench copy of all exhibits. The exhibits must be numbered consistent with the clerk's numbering.
Courtroom Etiquette
OBJECTIONS PREFERENCES:Stand and speak loudly when you object. Standing gives the court and the witness a non-verbal signal to stop the testimony. If you speak too softly, I may not hear you object. It is not a time to be shy.
Generally, allow the attorney to finish the question before objecting so that the court knows what the question is.
I do not allow speaking objections. If you have an objection that requires more than two or three words to explain, ask to approach.
USE OF COURTROOM TECHNOLOGY:
I encourage you to use the technology in my courtroom. Please check to make sure your presentation is working before you try it in front of the jury.
I am happy to allow you access to the courtroom before trial when court is not in session to practice any presentation.
HANDLING JURY QUESTIONS:
After each witness completes his or her testimony, I will call for juror questions. I will number them as counsel approach the bench.
I will have counsel read the questions to themselves and discuss them before going on the record.
We will put the questions (by number) on which there is agreement on the record. We will discuss any that are disputed, and I will resolve the dispute.
I will ask the questions to the witness. I allow follow up direct, cross-examination, and redirect on the issues raised in the juror questions.
ATTORNEY INTERACTION (I.E. DISCUSSIONS, STIPULATIONS):
Whether the jury is present or not, I expect counsel, the parties, and the witnesses to be respectful and professional.
Counsel may engage in discussions between themselves when the jury is present only if they ensure that the jury cannot overhear the discussion.
ATTORNEY AND CLIENT ISSUES IN THE COURTROOM:
The front two counsel tables have microphones on them. The FTR system picks up and records everything. Based on volume, the FTR system selects what to broadcast through the sound system in the court. If you talk too loudly, your conversation may be broadcast. Even if it is not broadcast, it may become part of the record.
I understand that part of trial practice and scheduling requires the use of texting and emails. Counsel should keep such activities to a minimum and should ensure that such use does not distract the court or the jury.
The parties may use laptops and tablets as needed for the trial. Again, I will prohibit the use if the activities create a distraction for the court or the jury.
Parties and clients may have beverages on the table. I also allow jurors to have beverages. To avoid distractions, please open containers when no one is testifying or arguing. If you have a medical or health reasons for having food at the table, please notify the court in advance of the trial.
ATTORNEY PRESENTATION:
I do not impose many courtroom rules. I focus on the substance of what is being said, not on where someone is standing or sitting. Also, if you have to stand up or move to be able to fully observe testimony, please free to do in a way that does not create a distraction. I have three exceptions.
The first relates to the jury box. Please respect the jurors' personal space. Attorneys may not enter into, sit on, or lean on the jury box.
The second relates to approaching the bench. Always ask and wait until I give permission before approaching the bench. In that regard, please respect my personal space as well.
The third has to do with disruptive behavior. If you are moving around and creating a distraction, particularly for the jurors, I will have you approach the bench to address the issue.
As a warning related to movement around the courtroom, if you are more than three feet or so from a microphone, For the Record may not pick up your voice so you may not be making a record. Think of it this way: If you are walking and talking, you are not making a record.
DISCUSSION THROUGH THE BENCH; BENCH CONFERENCES:
Bench conferences are by necessity somewhat more casual than formal arguments. Regardless, all discussion should go through the bench. However, be careful not to talk over each other. Also, before you begin to talk, be sure that the white noise has begun and that everyone is present at the bench.
I have white noise, but if you talk too loud, the jury can still hear you. And the jury can see all of your non-verbal communications, such as facial expressions, hand gestures, and body positioning.
Other Courtroom Policies and Recommendations
STAFF INTERACTION:Treat my staff with respect. They work hard. They know what they are doing.
When you speak with my staff, understand you are talking to me. Do not engage staff in what would be ex parte communications about the substance of the case. You may advise them about calendaring and timing issues only.
Do not blame staff, either your staff or my staff. I take responsibility for what happens in my chambers. I expect you to take responsibility for what happens in your office.