Judge Christopher K. Lui, Case BC718075 2023-05-15 Tentative Ruling

The Local Rules of the Los Angeles Superior Court include provisions governing trial readiness documents. Local Rule 3.25(f)(1) provides that “[a]t least five days prior to the final status conference, counsel must serve and file lists of pre-marked exhibits to be used at trial (Local Rules 3.151, 3.53, and 3.149), jury instruction requests, trial witness lists, and a proposed short statement of the case to be read to the jury panel explaining the case. Failure to exchange and file these items may result in not being able to call witnesses, present exhibits at trial, or have a jury trial. If trial does not commence within 30 days of the set trial date, a party has the right to request a modification of any final status conference order or any previously submitted required exchange list.” (emphasis added.)

The Court’s Final Status Conference Order (“FSC Order”), which was issued on January 11, 2022 and served on the parties, requires that the parties file a joint witness list that includes time estimates for direct, cross, and redirect examination for each witness. This implements the mandate of Local Rule 3.25(h) that counsel “provide reasonable and accurate time estimates for trial.” Without an accurate time estimate, the Court cannot give prospective jurors an accurate time estimate to assess their availability to serve as jurors.

The Court’s FSC Order also requires the parties to meet and confer about potential objections to exhibits, and to state those objections on the exhibit list, in order to minimize the waste of time during trial due to sidebar conferences or other methods of dealing with objections not previously raised.

The timely preparation of trial documents as called for in the FSC Order and Local Rule 3.25 helps the Court to ensure that trial will proceed expeditiously, without unnecessary mid-trial delays caused by the need to address jury instructions, admissibility of exhibits, or witness issues. Accomplishing this goal of efficiency requires that the parties make the effort to meet and confer before trial in an effort to resolve issues. A witness list with time estimates gives the Court guidance on the parties’ expectations for the length of trial; an exhibit list including objections gives the Court comfort that the parties have reviewed each others’ exhibits and attempted to meet and confer about objections; trial briefs give the Court a basis to assess the parties’ views of the issues to be tried and a basis to assess the reasonableness of any time estimates given by the parties.

Timely preparation of trial documents also allows the Court to assess the comparative readiness of multiple cases set for trial on the same day, which is especially important at this time because the COVID-19 pandemic has caused a substantial backlog of trials in this Department.

The Court has reviewed the parties’ trial readiness documents and has identified certain deficiencies as discussed below.

Based on the parties’ current state of trial preparation as shown by the trial readiness documents, it appears that the parties have not diligently met and conferred in order to meet the efficiency goals of Local Rule 3.25 and the FSC Order.

Paragraph 9 of the FSC Order requires counsel to meet and confer regarding the preparation of joint trial readiness documents. Since Plaintiff and Defendant filed separate trial readiness documents instead of joint documents, and did not file any declarations of counsel indicating that meet and confer efforts had failed, the Court draws the inference that counsel did not meet and confer as ordered.

Notably, the parties did not even file a joint statement of the case to be read to the jury. The statement of the case to be read to the jury is a minor part of the trial readiness documents, but it serves an important secondary purpose: if the parties cannot cooperate in the preparation of a joint statement, the Court has reason to worry about counsel’s ability to meet and confer productively on other aspect of the case.

The trial efficiency purposes served by Local Rule 3.25 and the Court’s FSC Order have been defeated in this case because the parties failed to file a compliant joint witness list, joint exhibit list, and trial briefs in advance of the FSC as required by Local Rule 3.25(f) and the FSC Order.

Paragraph 12 of the FSC Order provides that “[w]hether jointly filed by multiple parties, or separately filed by individual parties, each party must provide a trial brief” that succinctly identifies specific issues. Neither party filed a trial brief.

Paragraph17 of the FSC Order requires the parties to meet and confer regarding objections to the admissibility of exhibits, and file a joint exhibit list including each party’s objections to exhibits. The parties have not filed a joint exhibit list containing objections. Since the parties have apparently failed to meet and confer in order to resolve objections to exhibits and prepare a joint exhibit list stating their remaining objections, the Court is concerned that the parties’ lack of cooperation in exhibit preparation might result in a waste of jurors’ time. Sidebars or bench conferences regarding exhibit admissibility can often cause significant delays.

The Court therefore orders that the parties may not present any exhibits at trial other than items subject to judicial notice or items as to which the parties have stipulated.

Paragraph 16 of the FSC Order requires the parties to file a joint witness list that identifies all of the witnesses that the parties intend to call, and contains information including time estimates for all phases of the witnesses’ examination and any potential scheduling issues or special requirements. The parties did not file a joint witness list. The separate lists filed by the parties do not contain the information required by the FSC Order.

The purpose of the Court’s requirements regarding witness lists is to ensure that the parties have met and conferred regarding any special accommodations that their witnesses may require, and to ensure that the Court has sufficient information to assess the accuracy of the parties’ time estimates for the trial. Without an accurate time estimate, the Court cannot adequately time qualify jurors, and cannot manage its trial calendar in a way that allows the Court to give reasonable notice to parties in other cases whether their trial dates may need to be continued.

The Court therefore orders that in the event that any delays arise from witness availability issues or a failure to plan for special accommodations, the time for such delay will be deducted from the time allocated to the party calling that witness.

The preparation of jury instructions and verdict forms can consume substantial amounts of time. Once a jury has been selected, the time spent on resolving disputes over jury instructions and verdict forms (as well as preparing final documents) will inevitably result in down time for the jury. Although a final decision on the jury instructions and verdict forms often requires an assessment of the evidence admitted at trial, the basic structure of the jury instructions and verdict forms can be created before trial begins. Since the parties have not filed joint proposed jury instructions and verdict forms, and have not provided any indication of a serious effort to meet and confer regarding the preparation of these important trial readiness documents, the Court orders that the parties appear on May 22, 2023 at 8:30 a.m. in Department 76 of the Stanley Mosk Courthouse, 111 North Hill Street, Los Angeles CA 90012, and show cause why each party and its counsel of record should not be sanctioned in the amount of $500 for failure to comply with the FSC Order, plus $100 for each day thereafter until they jointly file proposed jury instructions and verdict forms.

In the Court’s experience, an Independent Calendar courtroom such as Department 76 is typically able to allocate only four to four-and-a-half hours of each six hour court day to trial proceedings. This case was set for a 5 day trial, which would yield a total of about 20 total hours to try the case. Due to the significant backlog caused by the Covid-19 pandemic, each trial day is more precious than in times past. The Court is concerned that even a 5 day trial might exceed the time reasonably necessary to try the case.

Some litigants are of the mistaken opinion that when they are assigned to a court for trial they have camping rights. This view presumes that the trial judge must defer to the lawyers’ time estimates for the conduct of the trial such that, for example, when examining witnesses, unless a valid objection is made by one's opponent, a party is entitled to take whatever time it believes necessary to question each witness. This view is not only contrary to law but undermines a trial judge’s obligation to be protective of the court's time and resources as well as the time and interests of trial witnesses, jurors and other litigants waiting in line to have their cases assigned to a courtroom.

(California Crane School, Inc. v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th 12, 19-20 (italicized emphasis original).)

The Court’s review of the pleadings, consideration of the factual and legal issues involved in this case, and experience in managing jury trials, indicates that efficient and cooperative attorneys should be readily capable of completing this trial in 5 days, including jury selection, opening statements, testimony and closing arguments. However, the parties appear to have been unwilling or unable to cooperate, to meet and confer on issues, and to prepare diligently for trial as directed by the Local Rules, California Rules of Court, and this Court’s Final Status Conference Order. In California Crane School, supra, the Court of Appeal noted:

Trials are a dynamic process without the benefit of a dress rehearsal, which makes forecasting the length of a trial less than precise. But for those parties and attorneys who are fully prepared for trial and do not waste time with repetitive questioning, cumulative evidence, not having witnesses available, or not having documentary evidence organized and easily accessible, a trial's length is not an issue. Thus, despite the vagaries of trial, when all parties try a case diligently, there is no reason for time limits. In all other cases, time limits will provide incentive to be diligent.

(California Crane School, supra, 226 Cal.App.4^th at 20 (emphasis added).) Given the parties’ noncompliant trial readiness documents, the Court finds that the imposition of a time limit is required in order to avoid wasting the time of jurors, and to ensure efficient allocation of judicial resources.

The Court finds that a time limit of 6 hours for each side for opening statements, witness examination, and closing arguments is appropriate, as this will ensure that each party has about one-and-a-half days to present its evidence and argument after a jury has been selected. For the reasons noted above, this is sufficient time to give the parties a full and fair opportunity to present its case, provided that they exercise diligence and efficiency. This time limit may be extended or reduced for good cause shown, either by party request or on the Court’s own motion. However, the parties should keep in mind that the Court will use the parties’ initial 5 day trial estimate as the basis for time-qualifying jurors. In considering a party’s request for additional time, the Court will consider the extent to which that party has prepared diligently and used its trial time efficiently without unnecessary waste of time.

The parties are also advised that they must have available witnesses at all times during trial. If a party’s witness completes their testimony and that party is unable to call its next witness immediately, the Court will either deduct any waiting time from that party’s time allocation, or deem that party to have rested.[1]

The Court’s purpose in imposing a time limit is to ensure that the parties prepare for and conduct the trial with diligence and efficiency. Allowing extensions of the parties’ time allocation when they have failed to act with diligence would defeat the purpose of the time limit. Therefore, the parties are advised that once trial begins, any delays caused by a party’s failure to follow the trial procedures set forth in the FSC Order may result in the Court deducting the time of such delay against that party’s time allocation.

[1] “Witnesses should be available at all times. It is clearly preferable to inconvenience one or more witnesses standing by in the hallway than to bring a trial to a halt because no witnesses are available. When a trial stops for that reason, it adversely impacts the time and resources of the court, jurors, parties and attorneys, not to mention those litigants waiting for a courtroom to open up for their case.” (California Crane School, supra, 226 Cal.App.4^th at 20 (footnote omitted).)