Judge Mark H. Epstein, Case Number: 22SMCV02934, Date: 2025-04-07 Tentative Ruling

Judge: Mark H. Epstein, Case: 22SMCV02934, Date: 2025-04-07 Tentative Ruling

Case Number: 22SMCV02934 Hearing Date: April 7, 2025 Dept: I

The matter is here for an FSC. The court’s FSC order was given on November 22, 2023. The court has received the following FSC materials as of April 2, 2025. (1) Joint Witness List with two witnesses and 9 hours of direct and cross examination. (2) Joint Exhibit List. 82 exhibits, mostly to be introduced by the defense. Very few agreements as to admissibility or even authenticity. (3) Defendant’s Jury Instructions. There is no list, but the instructions are there. All are CACI. (4) Defendant’s statement of the case. (5) Plaintiff’s Trial Brief. (6) Defendant’s Trial Brief. The court does not have plaintiff’s jury instructions, so the court assumes that plaintiff agrees with defendant’s instructions. The same is true of the statement of the case. The court does not have a verdict form. If the parties can get a joint verdict form to the court by noon on Wednesday, the court can live with it. There are no deposition designations, which is not a problem so long as no party will use any deposition testimony other than for impeachment.

If the court is right about the above, then the case may be READY FOR TRIAL.

The court has another case that might be going at that time, but it should end within a short time of the scheduled trial date. There are two other cases ready to go, but both are lengthy and this one is only a few days, so the court is likely to have this case go forward and have those cases trail. The court will discuss this with counsel.

The court appends below its trial preparation rules.

TRIAL PROCEDURES

The court does not know if the parties have retained a court reporter. If not, then the parties are ORDERED at the conclusion of each day of trial to have lead counsel MEET AND CONFER to arrive at an agreed settled statement. The meeting will last until the earlier of: (1) reaching an agreement; or (2) midnight. No later than 9:30 on the following court day, the parties will submit the agreed statement to the court. If the parties cannot agree, they will submit plaintiffs’ proposal red-lined against defendants’ proposal. On even numbered calendar days, plaintiffs will be responsible for the submission. On odd numbered calendar days, defendants will be responsible for the submission. (That refers to the day of the month for the trial, not the day of submission.) Alternatively, the parties may elect to waive appeal, although the court STRONGLY ADVISES AGAINST IT. The point of the settled statement is to have a record for appeal of what occurred during the trial (beyond that reflected in the Clerk’s Transcript). If there is no appeal, there is no need for the statement. The reason that the court is ordering daily meetings is because too often that process begins after the notice of appeal is filed, which could be months after the trial has concluded. By that time, memories have faded—especially the court’s memory. Yet the parties must either agree or the court must settle the statement. In the court’s experience, the sooner that is done, the better. If there is a court reporter, of course, then this is not needed.

The court holds trials Monday through Thursday, starting at 10:30. Fridays are reserved for other matters, but the jury can deliberate on Fridays. The court has an ELMO available for the parties’ use. Other technology must be provided by the parties and the parties need to work with court staff to be sure that it will be up and running as needed.

The court does not appreciate speaking objections. The parties should be very careful not to divulge the contents of a document or an exhibit to the jury through questioning until the document or exhibit has been admitted.

The parties will lodge on the first day of trial the following trial notebooks. Volume 1: (1) The operative complaint; (2) the operative answer; (3) any substantive rulings made by the court that are binding at trial; (4) the witness list; (5) the exhibit list; (6) the short statement of the case; and (7) motions in limine and rulings. Volume 2: Jury Instructions as they are to be read to the jury (meaning no brackets or the like). Volume 3: Exhibit binder. The parties will also lodge the deposition transcripts of any witnesses on the witness list. The parties should also inform the court before the jury venire is brought in whether they want to do “mini-openings” to the venire. If they do, they will be limited to 5 minutes per side.

For voir dire, the court generally gives the venire an introductory statement and reads the short statement of the case. The court then allows the parties to give mini-openings if they have chosen to do so. The court then gives additional information about the case—such as the list of witnesses and the estimated length. The court then deals with hardships, releasing jurors for the remainder of the day who do not claim hardship. The court asks the parties to meet and confer regarding any jurors to which they will stipulate there is a hardship or to which they both believe there is no hardship. The court then conducts the examination. While the court encourages agreement of the parties, the final hardship decision is the court’s alone. Note that this is before voir dire. The remaining venire typically convenes the next day and voir dire begins. The court generally uses a “six-pack” procedure. Voir dire begins with the court, then with plaintiffs, and then goes to defendants. Voir dire may be had as to all 18 jurors first selected, although the court will discuss whether voir dire can be had as to the entire venire (it depends on how many there are in the venire). When voir dire is concluded, the court will typically excuse the jury or conduct a side-bar with counsel to discuss challenges for cause. The defense goes first and makes all challenges for cause the defense wishes to make. A challenge for cause can be made as to any juror for whom there was voir dire. After the defense, plaintiffs will make their challenges for cause. When those challenges are resolved, the successfully challenged jurors are excused, the venire reconvenes, and the “box” of 12 is filled to the extent of successful cause challenges. After that, plaintiffs and defendants may exercise peremptory challenges, alternating between plaintiffs and defendants with plaintiffs going first. Peremptory challenges may only be made to the 12 jurors in the box. A “pass” by one side does not use a challenge nor does it establish that the remaining jurors are immune from peremptory challenge. If the box cannot be filled due to challenges, additional names will be called for the six pack. Voir dire will then go forward as to the newly-called prospective jurors only, after which the court will go through the cause procedure (as to the newly called jurors only) and then peremptory challenges, which can be made against any juror in the box. If a party makes a Batson/Wheeler motion, it must do so before the challenged juror is actually excused. The reason is so that the court can re-seat the juror if the challenge is successful. When the 12 members of the jury are chosen, the court will utilize a similar procedure regarding alternates, still using the “six pack.” The jurors are usually sworn when the panel and alternates have been selected. In the event that a second venire is needed, the court will discuss procedure with the parties. The court reminds the parties that, while some latitude is allowed during voir dire, the court will not allow pre-conditioning of the panel.