Protocol and Practice of Persons Appearing in the Court of Judge James D. Smith
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Specific Comments or Advice for LitigantsSpecific Requirements or Preferences This profile is based on my assignment as of June 25, 2018, which is a civil rotation 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 and self-represented litigants to follow the applicable court rules. See Higgins v. Higgins, 194 Ariz. 266, 981 P.2d 134 (App. 1999) (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).
Michael Fierro is my judicial assistant. His phone number is (602) 372-5945 and his email address is email@example.com.
General Advice Regarding Legal Writing And Oral Advocacy:
Bryan Garner interviewed eight U.S. Supreme Court justices in 2006 and 2007. They provided valuable insight regarding written and oral advocacy that I encourage all lawyers to read:
Be prompt. I understand that emergencies arise or that a traffic jam will occasionally make people late. Have our number available so you or your staff can let us know you’ll be late.
Pre-Trial Practice and Management IssuesMotion Practice General Information:
Double check legal citations prior to filing and include pin cites, directing me to specific pages of supporting authorities.
I appreciate receiving courtesy copies of lengthy papers (greater than 50 pages), such as a motion for summary judgment and accompanying statement of facts (plus exhibits). If you submit a courtesy copy, please wait until briefing is complete. Also, you must notify all other parties/lawyers at least one business day in advance of doing so. Please coordinate with the other parties/lawyers; if everyone intends to submit a courtesy copy, I appreciate receiving one binder with all relevant papers in it in chronological order.
I appreciate receiving courtesy copies of legal authorities you believe are particularly relevant or important. I don't need courtesy copies of cases stating basic legal standards, such as the standard for summary judgment. If you highlight those courtesy copies, you must simultaneously provide a copy to the other party.
When the attachments or exhibits are voluminous (>50 pages), consecutively paginate those attachments. Refer to those page numbers in your brief. For example, cite to "SOF 537" (i.e., page 537 of your SOF attachments) in the brief rather than "SOF ¶ 32." We don't have exhibit tabs most of the time, so finding where one exhibit ends and the next begins isn't always easy. Even more helpful is telling me what you're citing, such as "SOF 537 (J. Smith Dep. at 24:17-25)."
Lawyers often misuse separate SOFs as extended briefing. Judge Rayes described what should, and should not, be in a SOF. All lawyers should read his decision. Hunton v. Am. Zurich Ins. Co., 2018 WL 1182552 (D. Ariz. Mar. 7, 2018).
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 with the Clerk of Courts filing stamp indicating the date the document was filed). I can only act on documents that you filed with the Clerk of Court.
Temporary Restraining Orders/Preliminary Injunctions:
I typically set a brief return hearing on applications for temporary restraining orders or preliminary injunctions. I may not have the time to read, decide, and rule the same day you file a TRO application, especially if you filed after noon or on a day when I am in trial, so please plan accordingly. Please support your application as the applicable statutes and rules require. If you don’t, I will summarily deny your application.
Please submit proposed orders in Word format. Our e-file system does not allow me to edit a PDF proposed order.
All motions must adhere to the page limitations in the court rules. If you believe the page limitation needs to be extended, you should file a brief explaining why. The more concise a motion/response/reply is, the more likely it is to be ruled upon quickly.
Sur-replies and supplemental briefs require Court approval in advance. Likewise, exceeding page limits requires Court approval in advance. Lawyers should painstakingly edit their submissions to meet the page limits. Lawyers cannot stipulate to permit supplemental briefing or exceeding page limits—Court approval is necessary.
Do not request oral argument unless you intend to present information that is not in the written briefs. I may not grant oral argument even if a party requests it. If I set oral argument, it often means that I have questions about the briefs.
Expedited or Emergency Review:
If you seek expedited review, you must include the word “expedited” to the right of the caption. Also deliver a copy to my division or call my JA to let us know you're requested expedited review; if you don't, your papers may be lost in the shuffle of other eFile submissions. If I grant the request for expedited/emergency consideration, I will issue a minute entry with an expedited schedule. Do not request expedited review unless it is truly necessary.
I will not expedite oral argument or a ruling where it appears that the moving party's delay caused the purported urgency. I also generally will not put a matter ahead of other matters when the moving party could have filed the motion much sooner. You should reserve requests for accelerated/expedited rulings for unforeseen circumstances.
Motions for Summary Judgment:
These typically will be due at least 150 days before trial to allow time for briefing, argument, and a ruling.
I likely will deny a request to exceed page limitations filed at the same time as the underlying motion.
The opening paragraph of your motion for summary judgment (or a motion to dismiss) should identify the claims/defenses at issue and relief requested. For example:
• “Defendant is entitled to summary judgment on Count One (intentional interference with contractual relations) and Count Three (RICO) of the First Amended Complaint.”
• “Plaintiff is entitled to partial summary judgment on Count One (negligence) and Count Two (intentional tort – battery) with the amount of compensatory damages and punitive damages to be proven at trial.”
• “Plaintiff is entitled to summary judgment on Count One (breach of contract) and entitled to liquidated damages of $50,000.00 with prejudgment interest and post-judgment interest at ____%.” Don’t leave it to me to find the amount of damages in your papers.
I appreciate receiving courtesy copies of submissions that are 50 pages or greater. If you submit a courtesy copy, please wait until briefing is complete. Also, you must notify all other parties/lawyers at least one business day in advance of doing so. Please coordinate with the other parties/lawyers; if everyone intends to submit a courtesy copy, I appreciate receiving one binder with all relevant papers in it in chronological order.
Motions to Exclude Expert Witnesses:
Do not treat these as motions in limine (discussed below). These also will be due at least 150 days before trial to allow time for briefing and a possible hearing.
Motions in Limine:
I limit motions in limine and responses to five pages. I do not allow replies. Each motion in limine must address only one topic. Each side (not party) is limited to five motions in limine. The lawyers must meet and confer before filing any motions in limine.
Don’t combine more than one motion in a single filing or combine a response and a motion, or a reply and a motion, in one filing. This includes requests for fees. You must make any requests for fees by separate motion.
We usually are not able to retrieve e-filed papers for three business days. If you file something within 48 hours of an oral argument or hearing, it is unlikely that I’ll have seen or read it. Thus, please email any last-minute filings to my JA (and call to tell him you sent it) or hand-deliver hardcopies.
Discovery or Disclosure Disputes and/or Sanctions Written Discovery And Rule 26.1:
I dislike boilerplate objections to discovery requests. With respect to requests for production, if a party objects to some aspect of the request (e.g., temporal scope is too broad), that party must produce any documents not subject to the objection and explain why the request is over broad. If a party makes an unduly burdensome objection, it must explain why and how the request is unduly burdensome. I strictly enforce Rule 26.1.
Electronically Stored Information:
I encourage lawyers to work cooperatively to identify ways to reduce the cost of producing and evaluating voluminous ESI. If the parties haven’t considered predictive coding, staged searches of different custodians’ data, etc., expect me to ask why that isn’t appropriate in your case.
As the rules require, you must meet and confer before filing a discovery motion. Meeting and conferring requires at least a telephone call—emails/letters alone are insufficient.
I’ll also work with you to resolve straightforward discovery disputes via a quick telephone conference rather than briefing. Please follow these procedures:
1. You must have personally conferred and attempted to resolve the issue without success. The consultation must in person or by telephone; email or correspondence is insufficient.
2. You and opposing counsel (or self-represented litigant) must together call my JA and obtain a date and time for a telephonic conference. My JA will try to set a time within the next five judicial days.
3. You must file a statement of the issue and your position, not to exceed three pages (1.5 pages per side). If a written discovery request is involved, such as an interrogatory or request for production, provide the discovery request and response. [I realize this differs from Rule 26(d)(2).] Email this submission to my JA at least two judicial days before the conference (firstname.lastname@example.org).
If you are in the middle of a deposition and need an issue resolved immediately, you may call my JA. I’ll do my best to answer your dispute then. If I’m not available, you should continue with the deposition by moving to other topics until we’re able to speak. You may need to reconvene the deposition another day.
If you believe that this less formal process isn't appropriate because the issue is more complex or is central to the case, you should file a similar joint statement letting me know you'd like full briefing on the issue. Again, this will not be more than three pages (1.5 pages per side).
Other Pre-trial Practice Guidelines or Comments I expect lawyers and self-represented litigants to promptly respond to communications from opposing counsel. If I determine that someone is not promptly responding, I will issue an order requiring a response within two business days of any communication. Nonetheless, I also won’t tolerate burying the other side with numerous emails, faxes, etc., every day.
Trial Practice and ProtocolTrial Schedule Trial Schedule:
It is important that jurors not needlessly wait for us to resolve issues that we could’ve resolved before the jurors arrived. Thus, trial counsel must arrive fifteen minutes before trial begins in the morning and resumes after lunch to address such issues. Please be on time. If you have an issue that requires more time, please let me know in advance.
Trials typically are Monday through Thursday, 9:30 a.m. to 4:30 p.m., with lunch from noon to 1:30 p.m. It is common during trial for the lawyers and Court staff to address issues for part of the lunch break.
Joint Pre-Trial Memo and/or Conference; Exhibits and Objections Don't use the joint pretrial statement to reiterate the facts you intend to prove to the jury, to re-argue motions, etc. The value of a JPS is to prepare the parties and the court for the mechanics of the trial. Focus on identifying exhibits and objections to exhibits, ensuring you listed witnesses, completing deposition designations and objections to them, jury instructions (try to agree as much as possible), and the joint statement to read to the venire and in preliminary instructions. I'm not the trier of fact in a jury trial, and I don't spend any time evaluating the strengths or weaknesses of factual arguments in the JPS. Don't use the JPS as an evocative piece--use it as a tool to prepare the case for trial.
It takes a long time to mark exhibits so please follow the schedule in the trial setting minute entry. If you have exhibits for an evidentiary hearing, please bring them at least three days in advance for marking. I encourage attorneys to stipulate to admit as many exhibits as possible. Please do not refuse to stipulate just to force the opposing party to jump through evidentiary hoops. Laying the foundation for exhibits that neither party disputes needlessly extends the trial.
You waive objections to exhibits that you don't specifically state in the joint pretrial statement. Blanket objections don't suffice (e.g., "Defendant objects to all untimely disclosed exhibits.").
I have a particular procedure for using deposition designations in trial. The order following the trial management conference describes it in detail. Follow that protocol. Jury Selection Submit a stipulated short summary of the case so that I can read it to the jury at the beginning of jury selection.
I voir dire the entire panel and then allow the attorneys some time to question the jury. The attorneys usually need 15 minutes or fewer. We can pick a jury before noon in most cases.
Absent an issue that would require individual interviews of juror to protect their privacy, I generally don’t use jury questionnaires. Exceptionally long cases that may require a very large panel could lend themselves to questionnaires.
Alternates: I tend to seat nine jurors and strongly encourage lawyers to allow the alternate juror to deliberate.
Trial Practice and Procedure I often use a timer to keep track of time limitations. The timer runs through your voir dire, openings, examination, and closings. I try my best to apprise you of how much time remains, but please don't count on my doing so.
Please arrive early and test any technology you will use at trial so that there are no delays during trial. Our courtroom has a document camera, DVD, laptop interface, and flat screen TV.
Provide opposing counsel with any demonstrative exhibits at least 24 business hours before you intend to use and notify me in advance if there are any objections.
Courtroom Etiquette Silence all electronic devices before entering the courtroom. During evidentiary hearings, parties and witnesses must turn off phones.
We record the proceedings electronically. Lawyers/self-represented litigants should stand when stating their appearance.
Lawyers/self-represented litigants generally should stay near the podium or counsel table unless approaching a witness with an exhibit. You must request permission to approach a witness who is not your client. You need only ask once for permission to approach a witness; you don't need to request multiple times if you're showing the witness several exhibits.
Lawyers/self-represented litigants should stand when making objections.
Lawyers/self-represented litigants cannot direct comments to one another during oral argument or trial unless you ask for permission.
Other Courtroom Policies and Recommendations I add specific protocols to every scheduling order. READ THESE THOROUGHLY AND FOLLOW THEM.