Protocol and Practice of Persons Appearing in the Court of Judge Douglas Gerlach
Specific Comments or Advice for Litigants
Specific Requirements or Preferences
First Things, First.More than anything, attorneys and litigants should be prepared. Being prepared includes complying with what is said in the courts minute entries and the applicable rules. If any minute entry or rule requires something that is unduly burdensome or otherwise not appropriate for your case, please call my division to request a status conference regarding your concerns. Raising any such objections or other concerns at the time of a hearing or at trial is usually too late.
Forms of Proposed Orders and Judgments.
Please submit any proposed order or judgment in Word form only.
Pre-Trial Practice and Management Issues
Motion Practice
Dispositive Motions.Absent leave of court, and for good cause shown, no party may file more than one summary judgment motion. If a motion for summary judgment is filed, all issues must be raised in a single motion (e.g., the single motion may consist of what would otherwise be two or more motions for partial summary judgment). All issues in response to a motion must be raised in a single filing, even if that filing includes a cross-motion (a cross-motion is almost always a response to the original motion). All summary judgment motions and submissions that follow the filing of those motions are expected to comply with the letter and spirit of Ariz. R. Civ. P. 56 and Maricopa Cty. Rs. 2.16, 3.2(f).
Statements of fact should be presented in concise, numbered paragraphs [Ariz. R. Civ. P. 56], preferably with one fact per paragraph (which, among other things, makes it much easier to identify those facts that are disputed or objectionable). Statements of fact should not contain any assertions that amount to argument. See Breeser v. Menta Group, Inc., 934 F.Supp.2d 1150, 1153-54 (D. Ariz. 2013). (Although Breeser is a federal court decision applying a local federal rule, in my view, that local rule and its application in Breeser are consistent with the spirit, if not the letter, of Ariz. R. Civ. P. 56(c)(3). [F]act statements are designed to assist the court by organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side proposes to prove a disputed fact with admissible evidence. Opinion, suggested inferences, legal arguments and conclusions are not the proper subject matter of a [fact] statement. Breeser, 934 F.Supp.2d at 1155.)
Parties should refrain from engaging in what is the all-too-frequent practice of filing controverting or supplemental statements of facts with their reply memoranda. Rule 56 does not provide for such filings and, moreover, it is improper to introduce new evidence with the reply. Wells Fargo Bank v. Allen, 231 Ariz. 209, 214 n.3, 20, 292 P.3d 195, 200 n.3 (App. 2012) (reversing summary judgment). Objections to the nonmoving partys evidence should be treated in the reply memorandum: employing a separate filing that urges objections accompanied by argument is not permitted.
Page-Limit Rule.
All parties are expected to comply with the letter and the spirit of the page-limit rule [Maricopa Cty. R. 3.2(f)], which among other things means refraining from the all-too-commonly employed gimmicks that are designed only to maneuver around the rule (and that never improve the submission in any substantive way). Examples of such gimmickry include placing substantive arguments (including string citations with parenthetical quotations or explanations) in footnotes, an appendix, or accompanying statement of facts (if something needs to be understood before an informed decision can be made, that material should be placed in the main text, and anything not necessary to a reasoned decision does not warrant even footnote or appendix treatment), incorporating by reference substantive arguments that appear in other briefs, or altering the pagination (e.g., disregarding Rule 10 and placing the number 1 at the bottom of page 2).
The purpose of the page-limit rule is to promote the quality of written advocacy. Surely, it cannot be reasonably disputed that [i]t is typically the shorter briefs that are the most helpful, perhaps because the discipline of compression forces the parties to explain clearly and succinctly what has happened, the precise legal issue, and just why they believe the law supports them. In re M.S.V., Inc., 892 F.2d 5, 6 (1st Cir. 1989)); see also Fleming v. County of Kane, 855 F.2d 496, 497 (7th Cir. 1988) (page limit rules are intended to encourage [the parties] to hone their arguments and to eliminate excessive verbiage. [Limits] induce[] the advocate to write tight prose, which helps his client's cause. . . . Overly long briefs . . . may actually hurt a party's case, making it far more likely that meritorious arguments will be lost amid the mass of detail (citations and internal quotation marks omitted)). Thoughtful advocates recognize that the long brief says the question could go either way and begs that you be rewarded for doing your homework. The short brief says there is an answer to the problem and you have found it. James W. McElhaney, McElhaneys Litigation 284 (1995). Thus, page-limit requirements are intended to increase the likelihood that a partys position will be understood correctly and, thereby, increase that partys chances for success. Those objectives are defeated when parties ignore the page-limit rule
Procedurally, moreover, if page-limit rules are to be respected, attempts to evade them must fail. See e.g., United States ex rel. DRC, Inc. v. Custer Battles, LLC, 472 F.Supp.2d 787, 792 (E.D. Va. 2007), affd 562 F.3d 295 (4th Cir. 2009). That is especially true to assure that one party does not secure a briefing advantage over another party who complies with the page limitation. See e.g., AZ Holding, L.L.C. v. Frederick, 2010 WL 500443, at *2, n.4 (D. Ariz. Feb. 10, 2010); see also Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 150 (4th Cir. 2009) ([d]istrict court acted well within its discretion in fashioning a sanction for the defendants' failure to comply with [local rule page limitation]); Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002) (The district court has considerable latitude in managing the parties' motion practice and enforcing local rules that place parameters on briefing).
Sanctions imposed when page-limit rules are ignored frequently include disregarding the offending brief. E.g., Swanson v. U.S. Forest Serv., 87 F.3d 339, 345 (9th Cir. 1996) (upholding district court's discretion to disregard briefs filed in circumvention of page limits); Custer Battles, 472 F.Supp.2d at 792-93 (striking entire brief); Expedia, Inc. v. Reservationsystem.com, Inc., 2007 WL 201069, at *2 (W.D. Wash. Jan. 23, 2007) (same).
Oral Argument.
Oral argument is scheduled only if it will be helpful. Otherwise, a ruling will be issued based on the parties written submissions.
When oral argument is scheduled, I will, most of the time, identify my concerns at the beginning of the hearing and invite responses to those concerns. I generally begin with the party whose position seems more problematic, regardless of which party filed the motion or request. It is also my practice to ask questions during oral argument. Please understand that those questions are always and only intended to help me reach the correct decision, and therefore, if a question seems to be based on an erroneous premise, I have no problem with you explaining that, and you should not feel hesitant to point out my error. In return, I hope you will have no problem should I challenge, sometimes with some vigor, the premises of your arguments.
Submitting a memorandum or additional case authority on the day of the hearing is usually a waste of time and the clients money. I do not allow an oral argument to take place unless I have prepared, which means that, in most cases, I have reached a preliminary conclusion. Thus, submitting additional material at the hearing does not allow time for it to be fairly considered, either by the other side or me. An exception will be made, of course, for newly decided case authorities, but even then, it will be appreciated if that notice is provided at least a day or two before the hearing. In any event, attempting on the day of the hearing to submit new written argument that could have been presented weeks earlier or citations to cases decided years ago is almost never excusable or permitted. In the sa
Discovery or Disclosure Disputes and/or Sanctions
Disclosure.In most cases, I do not permit a party to introduce evidence at trial if the detail has not been disclosed as required by Rule 26.1. For example, identifying a witness only as one who is expected to testify about the facts of the case, or something similar, does not, in my view, comply with what is required.
Discovery or Disclosure Disputes.
Discovery disputes are strongly discouraged. Written motions to compel should not be filed before complying with the following procedure.
If you believe that discovery to which you are entitled has not been provided to you as required by the applicable rules, and you want the court to intervene, you must contact the other partys attorney (or the other party if he/she is self-represented), and then together, telephone the court to ask for a telephonic conference. No such request will be considered, however, if made 30 or fewer calendar days before the scheduled trial or evidentiary hearing.
To encourage the resolution of discovery disputes without court intervention, you are urged to consider the risk that comes from not providing discovery responses as required by the applicable rules. Even if court intervention is not requested, should a party fail to provide discovery that the court later decides is relevant, the jury may be told, or the court may assume, that the failure to provide discovery warrants an adverse inference against the party who refused to provide it. E .g., Sing v. Gonzales, 491 F.3d 1019, 1024 (9th Cir. 2007) (When a party has relevant evidence in his control which he fails to produce, that failure gives rise to an inference that the evidence is unfavorable to him (citation omitted)); see also Pendleton v. Brown, 25 Ariz. 604, 622, 221 P. 213, 219 (1923) (similar). Further, when a party fails to respond completely to discovery requests that the court concludes are reasonable, the trier of fact is permitted to assume that party is not credible in other ways. See generally Callender v. Transpacific Hotel Corp., 179 Ariz. 557, 562, 880 P.2d 1103, 1108 (App. 1993); see also Nardella v. Campbell Mach., Inc., 525 F.2d 46, 49 (9th Cir. 1975) (quoting Banks v. Chicago Grain Trimmers, 390 U.S. 459, 467 (1968)). In addition, should a party fail to provide discovery on a matter essential to another partys claim or defense, the party failing to provide the discovery may be precluded from presenting evidence, or that failure may result in the striking of that partys pleadings. (Discovery includes both responses to formal discovery requests and all disclosure required by Ariz. R. Civ. P. 26.1.)
Other Pre-trial Practice Guidelines or Comments
Expedited Consideration.Generally, motions for expedited or accelerated consideration will not be granted unless: (i) the motion is in some manner delivered to the opposing party or attorney (hand-delivery, e-mail, or fax) on the day it is filed instead of being served by regular mail, (ii) the motion describes efforts to obtain a stipulation requested relief without requiring court intervention, and (iii) not later than the end of the second paragraph, the motion explains with some specificity what is likely to happen (as opposed to what may or could happen) if the motion is not treated on an expedited or accelerated basis. That said, a request for expedited consideration that is prompted because of a self-induced emergency is unlikely to be granted.
Although e-filing has many wonderful benefits, e-filing does not guarantee that what is submitted will arrive in this division on the day of filing. In fact, there may be a delay of as much as a day or two. Therefore, if you have something that you would like considered immediately, to be safe, you should arrange to have a hard copy delivered to this division.
Extending Deadlines.
If no trial date has been set, and the parties wish to extend deadlines, those requests will almost always be granted. Trial dates are not set without assurances that the parties will be ready to proceed, and therefore, requests to extend deadlines that will require a new trial setting are unlikely to be granted. IF THE PARTIES AGREE TO EXTEND A DEADLINE, FILING A MOTION OR STIPULATION IS UNNECESSARY -- SIMPLY CALL THE DIVISION TO LET US KNOW.
Trial Practice and Protocol
Trial Schedule
Trial Scheduling.Trials are not scheduled without assurances that the parties will be ready to begin on the date that is scheduled. As a result, except for extraordinary emergencies (e.g., health issues), I almost never continue a trial.
I am willing to err on the side of scheduling too much time, rather than too little. I rely on attorney time estimates as well as my own experience when deciding how much time to allow. But, I almost never say no to anyones request unless it is way out of the norm. As a result, I hold the parties to the time that has been allocated and typically do not grant requests for additional time, especially requests made on the eve of or during the trial. In jury cases, the jurors are told when they can expect the trial to end, and I do everything I can to make sure that commitment is honored.
Joint Pre-Trial Memo and/or Conference; Exhibits and Objections
Joint Pretrial Statement.A joint pretrial statement controls the subsequent course of litigation and operates to amend the pleadings. Murcott v. Best Western Intl, Inc., 198 Ariz. 349, 358, 47, 9 P.3d 1088, 1097 (App. 2000). Issues not identified in the pretrial statement are removed from the case. E.g., Carlton v. Emhardt, 138 Ariz. 353, 355, 674 P.2d 907, 909 (App. 1983) (concluding that a joint pretrial statement that omitted a previously asserted defense removed it from the case). Therefore, I will sustain objections to attempts to introduce issues that are not preserved in the pretrial statement. In addition, absent a very compelling showing of good cause, I will not allow the testimony of witnesses or the admission of exhibits that are not identified in the pretrial statement. As well, I will not allow the use of depositions whose designations do not appear in the pretrial statement. And, any objections to witnesses, exhibits, or deposition designations that do not appear in the pretrial statement will be treated as waived.
If the joint pretrial statement indicates that a party intends to object to any evidence because of a failure to disclose, the party responsible for the disclosure should bring to court anything in writing that meets the objection. Attempting to prove compliance with the disclosure rules based only on oral representations about what was disclosed is unlikely to succeed. I would like very much to be able to look at the actual disclosure.
Motions in Limine.
The granting or denial of a motion in limine turns on whether the admission of evidence reaches the level of reversible error or a mistrial. Motions in limine should not be granted except upon a clear showing of non-admissibility. State ex rel. Berger v. Superior Court, 108 Ariz. 396, 397, 499 P.2d 152, 153 (1972) (emphasis added). And, motions in limine should not be used as substitutes for dispositive motions. E.g., Dunn v. State Farm Mut. Auto. Ins. Co., 264 F.R.D. 266, 274 (E.D. Mich. 2009) ([M]otions in limine are meant to deal with discrete evidentiary issues related to trial, and are not another excuse to file dispositive motions disguised as motions in limine (citation and internal quotation marks omitted)); Goldman v. Healthcare Mgt. Sys., Inc., 559 F. Supp. 2d 853, 871-72 (W. D. Mich. 2008) (same: collecting cases)); Johnson v. Chiu, 199 Cal. App. 4th 775, 780-81, 131 Cal Rptr. 3d 614, 618 (2011) (describing the filing or motions in limine that are, in effect, dispositive motions as a perversion of the process).).
Neither the motion nor the response may exceed two pages, including the caption. Showing that the motion has merit should not require more than that. Any motion in limine or response to such a motion should begin with a simple declarative sentence that identifies the evidence that is the subject of the motion, with the understanding that the broader the scope of the evidence to be excluded, the less likely it is that a motion in limine will be granted. The remainder of the motion or response should then explain why a mistrial or reversible error would or would not result if the motion is denied, with citations to authority that have reached the same conclusion in the same or similar circumstances. If the motion is unable to explain why its denial would result in a mistrial or reversible error, the remainder should then demonstrate persuasively what efficiency, economy, or other benefit is to be gained by granting the motion. Two or more issues that are separate motions should be combined in a single omnibus motion. The caption should appear on the first page, and each motion should begin on a new page, following the format and page limit standards above. The same applies to any response opposing such an omnibus motion.
Before any motion or omnibus motion may be filed, the moving party must comply with Ariz. Rule Civ. P. 7.2(a) (i.e., establishing a meet and confer requirement, which may be satisfied by meeting in person or by way of telephone conversations, but not by written means (e.g., e-mail, letter)).
Exhibits.
Marking--If exhibits are not submitted for marking in sufficient time (i.e., seven calendar days) before a trial or evidentiary hearing, they may still be marked and offered at the trial or hearing (assuming they have been properly disclosed to the opposing party and identified in the joint pretrial statement). Having exhibits marked in this way, however, will eat into a partys allocated time, and thus, reduce the amount of time that party has available to present evidence.
Stipulations--Stipulations regarding the admission of exhibits will be honored, but with this express understanding: if the parties stipulate to the admissibility of an exhibit about which no substantive testimony is elicited, at the conclusion of the case, that exhibit will be treated as withdrawn and will not be made available to the jury while it deliberates.
Bench copies--In most cases, I will appreciate being provided with a set of the exhibits that I can look at while the trial proceeds. Please check with me at the final joint pretrial management conference to make sure.