Opinion
Civil Action No. 09-cv-01811-PAB-CBS.
December 17, 2010
ORDER
This civil action comes before the court on: (1) Defendant's "Motion to Strike Plaintiff's Opposition to Defendant's Motion for Summary Judgment and Supporting Brief" (filed December 10, 2010) (doc. # 101); and (2) Ms. Paige's "Motion for Leave of Court to File a Response to Defendant's Motion for Summary Judgment" (filed December 16, 2010) (doc. # 103). Pursuant to the Order of Reference dated August 5, 2009 (doc. # 4) and the memoranda dated December 10, 2010 (doc. # 102) and December 17, 2010 (doc. # 105), these matters were referred to the Magistrate Judge. The court having reviewed the Motions, the entire case file, and the applicable law and being sufficiently advised in the premises, IT IS ORDERED that:
1. Defendant's "Motion to Strike Plaintiff's Opposition to Defendant's Motion for Summary Judgment and Supporting Brief" (filed December 10, 2010) (doc. # 101) is GRANTED.
2. "Plaintiff's Opposition to Defendant's Motion for Summary Judg []ment and Supporting Brief" (doc. # 99) is hereby STRICKEN.
3. Ms. Paige's "Motion for Leave of Court to File a Response to Defendant's Motion for Summary Judgment (filed December 16, 2010) (doc. # 103) is GRANTED.
4. Ms. Paige may on or before January 3, 2011 file her response that conforms to District Judge Brimmer's Practice Standards for Civil Cases. Attached to Ms. Paige's copy of this Order is a courtesy copy of District Judge Brimmer's Practice Standards for Civil Cases.
5. Defendant may file a Reply to the Motion for Summary Judgment on or before January 24, 2011.
DATED at Denver, Colorado, this 17th day of December, 2010.
PRACTICE STANDARDS (Civil cases) JUDGE PHILIP A. BRIMMER UNITED STATES DISTRICT COURT DISTRICT OF COLORADO Courtroom A701 Alfred A. Arraj United States Courthouse Chambers A741, Seventh Floor Alfred A. Arraj United States Courthouse 901 19th Street Denver, CO 80294 Telephone: (303) 335-2794 FAX: (303) 335-2782 E-mail: Brimmer_Chambers@cod.uscourts.govEffective: August 2010
TABLE OF CONTENTS I. GENERAL PROCEDURES II. COURTROOM PROCEDURES III. MOTIONS PRACTICE In Limine IV. TRIALS
.......................................... 1 A. Applicable Rules ...................................... 1 B. Access to Local Rules and Practice Standards .......... 1 C. Communications with Chambers .......................... 1 D. Proposed orders ....................................... 2 E. Discovery ............................................. 2 F. Motions to Continue ................................... 2 G. Motions for Extensions of Time ........................ 2 H. Settlement ............................................ 2 ....................................... 3 A. Courtroom Protocol .................................... 3 B. Recording of Proceedings .............................. 4 C. Exhibits .............................................. 4 D. Witness Lists ......................................... 5 E. Depositions ........................................... 5 F. Videotaped Depositions ................................ 6 G. Special Equipment (Audio/Video) ....................... 6 .......................................... 7 A. Page Limitations ...................................... 7 B. Responses and Replies ................................. 7 C. Untimely Or Noncomplying Motions, Objections, Responses, or Replies ............................... 7 D. Unopposed Motions ..................................... 8 E. Motions ..................................... 8 F. Dispositive Motions .................................... 8 Motions to Dismiss .................................. 8 Motions for Summary Judgment ........................ 9 G. Motions to Exclude Expert Testimony ................... 11 ..................................................... 13 A. Final Pretrial Conference ............................. 13 B. Trial Settings ........................................ 13 C. Length of Trial ....................................... 13 D. Motions in Limine ..................................... 13 E. Trial Preparation Conference .......................... 13 1. Jury Instructions and Verdict Forms ............ 14 2. Exhibit and Witness Lists ...................... 14 3. Voir Dire ...................................... 14 F. Jury Trials ........................................... 14 G. Trials To Court ....................................... 15 H. Trial Briefs .......................................... 15I. GENERAL PROCEDURES
A. Applicable Rules
Those appearing in the District Court must know and follow:
1. The Federal Rules of Civil Procedure;
2. The Federal Rules of Evidence;
3. The Local Rules of Practice of the United States District Court for the District of Colorado;
4. The Electronic Case Filing Procedures (Civil Version 3.0 or the most current version); and
5. These Practice Standards.
B. Access to Local Rules and Practice Standards
1. Copies of the local rules are available athttp://www.cod.uscourts.gov/LocalRules/Rules.aspx, from the District Court's home page http://www.cod.uscourts.gov/Home.aspx under "Local Rules," and from the clerk of the court in Room A105.
2. Copies of these practice standards are available athttp://www.cod.uscourts.gov/Judges/Judges.aspx. from the District Court's home page http://www.cod.uscourts.gov/Home.aspx under "Judicial Officers' Procedures," and from the clerk of the court in Room A105.
C. Communications with Chambers
1. My judicial assistant is Susan Shapiro, at 303-335-2794.
2. For information about the status of a motion or document, please contact the assigned civil docketing clerk at 303-335-2466.
3. For information about courtroom technology, trial preparation, or submission of trial exhibits, please contact my courtroom deputy clerk, Kathy Preuitt-Parks, at 303-335-2093.
4. My court reporter is Janet Coppock, at 303-335-2106.
5. Please do not contact the law clerks about procedural or scheduling matters.
D. Proposed orders
Proposed orders should be sent by electronic mail tobrimmer_chambers@cod.uscourts.gov as an attachment in Word Perfect format (Word Perfect 12 or a later version) or in Word format. The e-mail message should identify the case number and the document attached. Do not send documents directly to chambers by facsimile unless asked to do so.
E. Discovery
Discovery deadlines and limitations will be set by the assigned magistrate judge. The presumptive discovery period is six months.
F. Motions to Continue
Motions to continue (including motions to vacate or reset) hearings and trials will be determined pursuant to D.C.COLO.LCivR 6.1 and 7.1 and United States v. West, 828 F.2d 1468, 1469-70 (10th Cir. 1987). Oral or written motions to continue should not be made at the time of a hearing or trial. Stipulations for continuance are not effective unless and until approved by the court. When a motion to continue is granted, all parties will be notified as soon as practicable.
G. Motions for Extensions of Time
1. Motions for extension of time require a showing of good cause, which must be established with particularity. The following reasons do not constitute good cause: agreement of counsel, inconvenience to counsel or to the parties; the press of business; conflicts in scheduling; or practice as a sole practitioner.
2. Any motion for extension of time shall be filed no later than three business days before the date the motion, response, reply, or other paper is due.
3. This practice standard is subject to D.C.COLO.LCivR 6.1A, which governs extension by stipulation.
H. Settlement
1. Jury Trials — If a settlement is reached before a hearing or trial, please advise my judicial assistant, Susan Shapiro, at 303-335-2794 as soon as possible. However, no deadline, hearing or trial will be vacated, except upon the filing of papers sufficient to resolve the matter and the issuance of an order. If counsel are unable to file the appropriate documents before the hearing or trial, counsel shall appear at the scheduled hearing or trial to memorialize the settlement on the record. Please be aware that jury costs may be assessed in accordance with D.C.COLO.LCivR 54.2 if a matter is resolved after noon on the last day before trial. If a matter is resolved during the weekend before trial, please file a notice via CM-ECF as soon as possible.
2. Bench Trials and Hearings — If a settlement of a contested motion or case to be tried to the court is reached before the hearing or trial, please advise my judicial assistant, Susan Shapiro, at 303-335-2794 as soon as possible. A motion hearing or bench trial will be vacated only if pleadings sufficient to resolve the matter (e.g., motion, stipulation, and proposed order) are filed no later than noon on the day before the scheduled hearing or trial. If counsel and any pro se party are unable to file the appropriate documents by this deadline, counsel and any pro se party shall appear as scheduled to recite the settlement terms on the record. If a matter is resolved during the weekend before trial, please file a notice via CM-ECF as soon as possible.
3. Settlement discussions are encouraged; however, hearings, trials, and pretrial deadlines will not be continued or vacated to facilitate settlement negotiations or alternative dispute resolution.
4. Partial Case Settlement/Dismissal — If fewer than all claims, counterclaims, cross-claims, defenses, or parties are resolved or dismissed by settlement, the parties shall promptly notify the court and request approval of the partial settlement or dismissal and shall specify the claims, counterclaims, cross-claims, defenses, or parties affected by the partial settlement.
5. Except in extraordinary circumstances, the Court will not retain jurisdiction (including through open-ended administrative closure) over cases that have been settled. The proper mechanism for enforcing a settlement is, in almost all cases, through a new action. Any motion or stipulation for dismissal requesting that the Court retain jurisdiction after dismissal shall explain in detail the extraordinary circumstances necessitating such an approach.
II. COURTROOM PROCEDURES
A. Courtroom Protocol
1. Please observe traditional courtroom decorum: stand when addressing the court, address the court as "Your Honor," and request permission to approach the bench. It will not normally be necessary for counsel to approach a witness on the stand. The courtroom deputy, upon request of counsel, will hand a witness an exhibit.
2. If you have a question about courtroom protocol, please contact my courtroom deputy clerk, Kathy Preuitt-Parks, at 303-335-2093.
B. Recording of Proceedings
1. The official record of all trials and proceedings will be taken either by a realtime reporter or by electronic sound recording (audiotape). Prior to the beginning of any proceeding, please provide the court reporter with your business card.
2. The realtime reporter assigned to the court is Janet Coppock, at 303-335-2106. Transcripts of proceedings may be ordered from Ms. Coppock. Requests for realtime, daily, or hourly copy must be made at least thirty days before the trial or hearing. Further details can be obtained from Ms. Coppock.
C. Exhibits
1. When to File — For motions hearings, exhibit lists shall be filed via CM-ECF two business days before the hearing. For trials, see Section IV.E concerning the Trial Preparation Conference.
2. Format of Exhibit List — Parties must use the form of exhibit list available on the District Court website athttp://www.cod.uscourts.gov/Judges/Judges.aspx.
3. Each party must pre-mark all exhibits that will be used or identified for the record in a hearing or trial. Each party must provide a copy of each exhibit to opposing counsel or any pro se party before a hearing or trial. Exhibits not timely pre-marked or exchanged before a hearing or trial may not be admitted. For trial exhibit lists, please add at least ten additional blank rows at the end of the exhibit list to accommodate any additional exhibits that may be introduced.
4. Exhibit labels can be obtained from the clerk's office before trial. Plaintiff's exhibits should be marked with yellow labels, using numbers. Defendant's exhibits should be marked with blue labels, using alphabetical letters for the first twenty-six exhibits. For example, if there are twenty-six or fewer exhibits, label them A through Z. If there are more than twenty-six exhibits, begin marking them as A-1 through A-99, then B-1 through B-99, etc. Do not use double or triple letters. The civil action number should also be placed on each of the exhibit stickers.
5. Exhibits must be bound, e.g., in three-ring notebooks or folders, and the notebook or folder labeled with the following information: (i) caption, (ii) nature of proceeding, (iii) scheduled date and time, and (iv) "original" or "copy." If exhibits are not bound and labeled properly, the hearing or trial may be delayed or continued until they are. If a party has fewer than five exhibits, such exhibits need not be bound.
6. Number of Sets of Exhibits — For hearings and trials, each party should bring separate sets of bound exhibits for (a) the court, (b) the courtroom deputy clerk, (c) the court reporter, (d) opposing counsel, and (e) the witness stand.
7. Stipulated Facts — Any stipulation of fact should be formatted as a pleading and marked as an exhibit.
D. Witness Lists
1. When to File — For motions hearings other than Rule 702 hearings, witness lists shall be filed via CM-ECF two business days before the hearing. For Rule 702 hearings, see Section III.G. For trials, see Section IV.E concerning the Trial Preparation Conference.
2. Format — Parties should use the form of witness list available on the District Court website athttp://www.cod.uscourts.gov/Judges/Judges.aspx.
E. Depositions
1. Together with Fed.R.Civ.P. 32, this practice standard governs the use of depositions in court proceedings.
2. Evidence to be presented by deposition shall be designated with specificity, i.e., by page(s) and line(s).
3. Initial designations of deposition testimony shall be made not later than 45 days before trial, and counter designations shall be made not later than 30 days before trial.
4. Objections to any properly designated portion of a deposition shall be filed and determined in the time and manner prescribed by D.C.COLO.LCivR 7.1C and these Practice Standards. Objections shall be presented in a table that has four columns (see sample table below): 1) item number; 2) testimony (identified with specificity, i.e., by page(s) and line(s) of an accompanying transcript); 3) objection; and 4) ruling. The objection shall attach the relevant portion of the deposition transcript and sufficient context to allow the Court to decide the objection. Objections may be resolved before trial to facilitate appropriate redaction. Item Testimony Objection Ruling # 1.
5. For jury trials, parties must provide a person to read the deposition answers.
6. For bench trials, depositions will usually not be read in open court. Instead, the court will read them in chambers in any requested sequence. At the beginning of the trial, the offering party shall provide the courtroom deputy clerk with two copies of the relevant deposition transcript marked as an exhibit with plaintiff's designated portions highlighted in yellow, the defendant's in blue, and any other party's in green.
F. Videotaped Depositions
1. Together with Fed.R.Civ.P. 32, this practice standard governs the use of videotaped depositions in court proceedings.
2. Evidence to be presented by videotaped deposition shall be designated with as much specificity as practicable.
3. Initial designations shall be made not later than 45 days before trial, and counter designations shall be made not later than 30 days before trial.
4. Objections to any properly designated portion of a videotaped deposition shall be filed and determined in the time and manner prescribed by D.C.COLO.LCivR 7.1C and these Practice Standards. Objections shall be presented in a table that has four columns (see sample table below): 1) item number; 2) testimony (identified with specificity, i.e., by page(s) and line(s) of an accompanying transcript and by hour and minute of the tape); 3) objection; and 4) ruling. Objections may be resolved before trial to facilitate appropriate redaction. Item Testimony Objection Ruling # 1.
G. Special Equipment (Audio/Video)
The court has audio-visual and other special equipment that may be used by the parties. A listing of available equipment can be found on the District Court's website athttp://www.cod.uscourts.gov/Judges/Judges.aspx. under "Courtroom Technology Manual for Attorneys." Notify the courtroom deputy clerk, Kathy Preuitt-Parks, at 303-335-2093, no later than fourteen days before a hearing or trial concerning the date and time you need such equipment or need your own equipment to be brought through security for use in the courtroom.III. MOTIONS PRACTICE
A. Page Limitations
All motions, objections (including objections to the recommendations or orders of United States Magistrate Judges), responses, and briefs shall not exceed fifteen pages. (This limit does not apply to motions for summary judgment.) Replies shall not exceed ten pages. Motions and briefs shall be combined and will be considered one paper for purposes of computing page limitations. These page limitations include the cover page, jurisdictional statement, statement of facts, procedural history, argument, authority, closing, signature block, and all other matters, except the certificate of service. The body of the text and all footnotes shall be no smaller than 12-point type.
Motions to exceed the page limitations set forth in these Practice Standards will be granted only upon a showing of good cause. Any such motion shall indicate the number of pages of the proposed document and the reason why the additional pages are necessary.
B. Responses and Replies
1. Deadlines — See D.C.COLO.LCivR 7.1 and D.C.COLO.LCivR 56.1 for applicable time limits for filing responsive and reply briefs. Rule 6 of the Federal Rules of Civil Procedures controls the computation of time. For extensions of time for filing such briefs, see Section I.G.
2. A response shall identify by title and CM-ECF docket number the pleading to which it responds. Similarly, a reply shall identify by title and CM-ECF docket number the response to which it replies. No surreply or supplemental briefs shall be filed without leave of Court.
C. Untimely Or Noncomplying Motions, Objections, Responses, or Replies
1. Motions that are untimely, noncomplying, or filed without a certification pursuant to D.C.COLO.LCivR 7.1A may be denied without prejudice or stricken sua sponte.
2. Untimely or noncomplying objections, responses, or replies may be denied without prejudice, stricken, or ignored.
D. Unopposed Motions
An unopposed motion shall be designated as required by D.C.COLO.LCivR 7.1B. A proposed order shall be submitted with all unopposed motions. Do not submit proposed judgments, since judgments are prepared by the clerk of the court.
E. Motions In Limine
Motions in limine are discouraged when the motion is evidence driven and cannot be resolved until evidence is presented at trial. Instead, the issue can be flagged in a trial brief.
F. Dispositive Motions
1. Procedures for motions seeking relief pursuant to Fed.R.Civ.P. 12 or 56 are governed by D.C.COLO.LCivR. 7.1C and 56.1, respectively. Deadlines will be applied strictly.
2. Motions to Dismiss — FED. R. CIV. P. 12(b)
a. Rule 12(b) motions are discouraged if the defect is correctable by the filing of an amended pleading. Counsel should confer prior to the filing of the motion if the deficiency is correctable by amendment (e.g., failure to plead fraud with specificity) and should exercise their best efforts to stipulate to appropriate amendments. Rule 12(b) motions should not be stated in the alternative as a Rule 56 motion for summary judgment. For Rule 12(b) motions, the following format should be used:
i. For each claim for relief that the movant seeks to have dismissed, clearly enumerate each element that movant contends must be alleged, but was not.
ii. The respondent should utilize the same format for each challenged claim. If the respondent disputes a particular element, the element should be identified as "DISPUTED" and briefed. If the respondent contends that a sufficient factual allegation has been made in the complaint, the respondent should identify the page and paragraph containing the required factual allegation.
iii. If matters outside the pleadings are submitted in support of or opposition to a Rule 12(b) motion, the party should discuss whether the 12(b) motion should be converted to a summary judgment motion.
b. If a party elects to file more than one Rule 12(b) motion, opening briefs and response briefs shall not exceed fifteen pages total for all such motions (not each such motion) filed by that party.
3. Motions for Summary Judgment — FED. R. CIV. P. 56
a. Motions and response briefs shall not exceed twenty pages. Reply briefs shall not exceed ten pages. These page limitations shall include the motion for summary judgment, cover page, jurisdictional statement, statement of facts, procedural history, argument, closing, signature block, and all other matters, except the certificate of service. If a party elects to file more than one Rule 56 motion, then the motions and response briefs shall not exceed twenty pages total for all such motions (not each such motion) filed by that party. The body of the text and all footnotes shall be no smaller than 12-point type.
b. Because of the voluminous factual materials which are frequently submitted with motions for summary judgment, all Rule 56 motions must comply with the following requirements:
i. In a section of the brief required by rule 56.1A of the United States District Court for the District of Colorado Local Rules of Practice (Civil) styled "Statement of Undisputed Material Facts," the movant shall set forth in simple, declarative sentences, separately numbered and paragraphed, each material fact which the movant believes is not in dispute and which supports movant's claim that movant is entitled to judgment as a matter of law.
ii. Each separately numbered and paragraphed fact must be accompanied by a specific reference to material in the record which establishes that fact. General references to pleadings, depositions, or documents are insufficient if the document is over one page in length. See D.C.COLO.LCivR 56.1C.1 regarding the marking of exhibits. A "specific reference" means:
— In the case of materials filed with the court, the title of the document, the date on which it was filed or served, and a specific paragraph or page and line number; or, if the document is attached to the motion, the paragraph or page and line number;
— In the case of interrogatories or requests for admission (the pertinent parts of which must be filed with the motion), the number of the interrogatory or request;
— In the case of depositions or other documents bearing line numbers, the specific page and line(s) establishing the fact;
— In the case of affidavits submitted in support of the motion, the specific paragraph number establishing the fact;
— In the case of other materials not numbered by paragraph, line, or page, a reference which will enable the court to ascertain the fact without reviewing the entire document; the effort at specificity may be made by highlighting, manual underscoring, or pagination supplied by the movant.
iii. Only if the nature of the material fact does not permit a specific reference ( e.g., "The contract contains no provision for termination."), is a general reference sufficient.
iv. Any party opposing the motion for summary judgment shall, in a section of the brief required by rule 56.1A of the United States District Court for the District of Colorado Local Rules of Practice (Civil) styled "Response to Statement of Undisputed Material Facts," admit or deny the asserted material facts set forth by the movant. The admission or denial shall be made in separate paragraphs numbered to correspond to movant's paragraph numbering. Any denial shall be accompanied by a brief factual explanation of the reason(s) for the denial and a specific reference to material in the record supporting the denial.
v. If the party opposing the motion believes that there exist additional disputed questions of fact which it has not adequately addressed in the submissions it has made pursuant to subparagraph (iv) above (for example, disputed facts concerning an affirmative defense), the party shall, in a separate section of the party's brief styled "Statement of Additional Disputed Facts," set forth in simple, declarative sentences, separately numbered and paragraphed, each additional, material disputed fact which undercuts movant's claim that it is entitled to judgment as a matter of law. Each separately numbered and paragraphed fact shall be accompanied by a specific reference to material in the record which establishes the fact or at least demonstrates that it is disputed.
vi. Any reply brief must comply with the following requirements:
— In a separate section styled "Reply Concerning Undisputed Facts," include any factual reply which movant cares to make regarding the facts asserted in its motion to be undisputed, supported by specific references to material in the record. The reply will be made in separate paragraphs numbered according to the motion and the opposing party's response.
— In a separate section styled "Response Concerning Disputed Facts" (with respect to each fact which the opposing party, pursuant to subparagraph (v) above, claims to be in dispute), either admit that the fact is disputed or supply a brief factual explanation for its position that the fact is undisputed, accompanied by a specific reference to material in the record which establishes that the fact is undisputed. This will be done in paragraphs numbered to correspond with the opposing party's paragraph numbering.
vii. The sole purpose of these procedures is to establish facts and determine which of them are in dispute. Legal argument is not permitted here and should be reserved for separate portions of the briefs. If, for example, a party believes that an established fact is immaterial that belief should be expressed in the part of the brief devoted to legal argument, and the fact should be admitted. If, on the other hand, a party believes that the reference to material in the record does not support the claimed fact, that fact may be denied and factual argument may appropriately be made pursuant to these procedures.
viii. All summary judgment exhibits shall be labeled in the CM-ECF system both by exhibit number or letter and by name, e.g., Exhibit 1 — Smith Affidavit.
ix. Failure to follow these procedures will result in an order striking or denying the motion or brief, and it will have to be re-submitted. Repeated failure to follow them may result in an order granting other proper relief.
G. Motions to Exclude Expert Testimony
A party objecting to the admissibility of opinion testimony by an expert witness shall file a written motion seeking its exclusion. (The failure of an opponent to file such a motion, however, does not relieve the proponent of its burden to show that the proffered testimony is admissible at trial.)
The motion shall identify with specificity each opinion the moving party seeks to exclude. The motion shall also identify the specific ground(s) on which each opinion is challenged, e.g., relevancy, sufficiency of facts and data, methodology. See Fed.R.Evid. 702. Motions and responses shall not exceed fifteen pages without permission of the Court; replies shall not exceed ten pages without permission of the Court.
The deadline for filing all such motions shall be set by the Court at the scheduling conference; the deadline will typically be thirty days after the deadline for disclosure of rebuttal expert witnesses. The time for filing responses and replies shall be governed by D.C.COLO.LCivR 7.1C.
Upon the filing of a motion, the Court, in its discretion, may set a hearing to determine whether the challenged opinions are admissible under the relevant Federal Rules of Evidence. The setting of such hearing does not obviate the need for opposing counsel to respond to such motion. If such a hearing is ordered, the parties shall proceed as follows:
1. No later than fourteen days prior to the hearing, the proponent of the expert witness shall file a statement of the expert witness that sets forth the expert witness's relevant qualifications, methodology, etc. This statement shall substitute for the proponent's direct examination of the expert witness and should therefore include all information the proponent would otherwise seek to establish on direct examination in support of the challenged opinions. Particular attention should be paid to the challenges raised by the opposing party; for example, if the opposing party challenges an expert witness's methodology for a particular opinion pursuant to Fed.R.Evid. 702, the statement should focus on the reliability of that methodology. Such statement shall not exceed ten pages without permission of the Court. The expert witness must be present at the hearing.
2. The hearing will begin, if necessary, with brief opening arguments by the parties, followed immediately by the challenging party's cross-examination of the expert witness. Following cross-examination, the proponent will be permitted to ask questions of the expert witness on redirect examination.
3. After examination of the expert is complete, the proponent may call additional witnesses, if necessary. The opponent may also call additional witnesses, if necessary. A list of any additional witnesses a proponent or opponent intends to call shall be filed no later than seven days before the hearing. If any of the additional witnesses will express opinions subject to Fed.R.Evid. 702 which have not already been disclosed in discovery, a copy of that witness's curriculum vitae and a report disclosing such opinions shall be filed seven days before the hearing.
4. No later than seven days before the hearing, the parties shall exchange any exhibits they intend to introduce at the hearing and shall file an exhibit list with the Court. Exhibits shall be numbered and bound in the manner indicated herein in Section II.C.
IV. TRIALS
A. Final Pretrial Conference
The assigned magistrate judge will hold a final pretrial conference as prescribed by Fed.R.Civ.P. 16(d) and D.C.COLO.LCivR 16.3. The form to be used for the Final Pretrial Order can be found on the District Court website.
B. Trial Settings
Whenever practicable, the case will be set for trial and for Trial Preparation Conference during the final pretrial conference before the assigned magistrate judge; otherwise, immediately after the final pretrial conference counsel and pro se parties shall report to chambers (Room A741, located on the seventh floor) to set the case for trial and for Trial Preparation Conference.
C. Length of Trial
Should the parties request a trial lasting longer than five days, before a trial date can be set, counsel and/or pro se parties shall report to this Court's Chambers following the Final Pretrial Conference to set a status conference date, at which time the parties may present argument to the Court as to why a trial longer than five days is necessary.
D. Motions in Limine
Motions in limine are discouraged. See Sec. III.E. and Sec. IV.H. If a party files a motion in limine, it is due fourteen days before the trial preparation conference.
E. Trial Preparation Conference
The Trial Preparation Conference will usually be held approximately two weeks before trial. Counsel who will try the case must attend. Once trial has been set, the court will issue a Trial Preparation Conference Order that will confirm the trial date, confirm the Trial Preparation Conference date, and specify the tasks to be completed before the Trial Preparation Conference.
1. Jury Instructions and Verdict Forms:
a. Fourteen days before the trial preparation conference, counsel and any pro se party shall submit proposed jury instructions and verdict forms. The jury instructions shall identify the source of the instruction and supporting authority, e.g. § 103, Fed. Jury Practice, O'Malley, Grenig, and Lee (5th ed.). The parties shall submit their instructions and verdict forms both via CM-ECF and by electronic mail to brimmer_chambers@cod.uscourts.gov in Word Perfect format (Word Perfect 12 or a later version) or Word format. Verdict forms shall be submitted in a separate file from jury instructions. Within the jury instruction file, each jury instruction shall begin on a new page.
b. Each instruction should be numbered (e.g., "Plaintiff's Instruction No. 1") for purposes of making a record at the jury instruction conference. The parties shall attempt to stipulate to the jury instructions, particularly "stock" instructions and verdict forms.
c. In diversity cases where Colorado law applies, please submit instructions and verdict forms that conform to CJI-Civ 4th.
2. Exhibit and Witness Lists: Seven days before the trial preparation conference, the parties shall file their proposed witness and exhibit lists via CM-ECF. The form of such lists are found at http://www.cod.uscourts.gov/Judges/Judges.aspx. For additional matters regarding exhibit and witness lists, see Sections II.C and II.D. above.
3. Voir Dire: Seven days before the trial preparation conference, the parties shall file their proposed voir dire questions.
F. Jury Trials
1. Counsel and pro se parties shall be present on the first day of trial at 8:00 a.m. Jury selection will begin at 8:30 a.m. The second day of trial will begin at 8:30 a.m. and continue until 5:00 p.m. The trial day will have morning and afternoon recesses of approximately fifteen minutes duration. A lunch break of approximately one hour and thirty minutes will be taken at approximately 12:00 p.m.
2. The jury in civil cases will normally consist of nine jurors. Pursuant to Fed.R.Civ.P. 47(b) and 28 U.S.C. § 1870, each side shall have three peremptory challenges.
3. Voir Dire: Unless ordered otherwise, each side shall be permitted voir dire examination of fifteen minutes after voir dire examination by the court.
4. Jurors will be permitted to take notes during the trial.
5. The jury will be instructed before closing argument.
6. Each juror will be given a copy of the written jury instructions for use during deliberations.
G. Trials To Court
1. Trials to court will begin at 8:30 a.m. on the first day of trial.
2. Not less than two business days before the trial preparation conference, counsel and any pro se party shall file proposed findings of fact, conclusions of law, and orders. A copy shall also be emailed to chambers. Counsel and any pro se party are requested to state their proposed findings of fact in the same order as their anticipated order of proof at trial. Counsel and any pro se party are requested to key their closing arguments to their proposed findings of fact and conclusions of law and to emphasize the evidence on which they rely to support their positions.
3. For a trial to the court, a proper résumé or curriculum vitae, marked as an exhibit, generally will suffice for the qualification of an expert witness.
H. Trial Briefs
Trial briefs are encouraged, but not required absent specific court order. If filed, trial briefs shall not exceed ten pages and shall be filed not later than two business days before the trial preparation conference. Please flag evidentiary issues in a trial brief rather than by motion in limine. A trial brief may not be used as a substitute for a motion.