Opinion
Civil Action No. 06-cv-00545-WYD-KLM.
August 13, 2009
ORDER
This matter is before the Court on Plaintiff's Consolidated Alternative Petition for Summary Judgment, on [sic] the Alternative Petition for Appointment of Counsel [Docket No. 167; August 3, 2009]. The Motion is a joint request for appointment of counsel and summary judgment.
IT IS HEREBY ORDERED that the Motion is DENIED in part and STRICKEN in part for the reasons set forth below.
To the extent that Plaintiff moves for the appointment of counsel, the Motion is denied. The Court does not have the power to appoint an attorney without the attorneys' consent, Mallard v. United States District Court for the Southern Dist. of Iowa, 490 U.S. 296, 310 (1989), nor does the Court have funds available to pay an attorney who agrees to represent an indigent litigant in a civil case. Nevertheless, the Court can seek volunteer counsel to represent a plaintiff such as this Plaintiff if the Court determines in its discretion that is appropriate to do so. The Clerk of the Court maintains a list of pro se cases for which the court is seeking volunteer counsel. However, the Court clarifies that mere placement on this list would not automatically mean that Plaintiff would receive counsel. Rather, placement on the list results in representation being secured for Plaintiff only if counsel volunteers to represent him. Because of the number of cases on the list and the shortage of volunteer attorneys, placement on the list frequently does not result in counsel being obtained. In such circumstances, despite placement of a case on the list, a pro se litigant remains responsible for litigating his case himself.
The Court will only seek volunteer counsel for a pro se plaintiff if a consideration of the following factors so warrants: (1) the merits of the litigant's claims, (2) the nature of the factual issues raised in the claims, (3) the plaintiff's ability to present his claims, and (4) the complexity of the legal issues raised. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (citing Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)). A further consideration is whether there exists any special circumstances such as those in McCarthy v. Weinberg, 753 F.2d 836, 837 (10th Cir. 1985), where the pro se plaintiff was confined to a wheelchair, had poor eyesight, suffered from a speech impediment and memory lapses, and had general difficulty in communications. See Rucks, 57 F.3d at 979.
In this case, Plaintiff has demonstrated a limited ability to frame facts and state claims for relief. His filings to date indicate that Plaintiff has an adequate grasp of the facts and issues in this case. The legal issues, though varied, are not overly complex, novel, or difficult to state or analyze. Further, I note that the record does not indicate that Plaintiff has made any attempts to secure counsel for himself.
The fact that Plaintiff lacks legal training or is indigent does not warrant the need for volunteer counsel. The fact of Plaintiff's lack of legal acumen or indigence is a normal, not a special, circumstance in this type of case, and therefore, does not provide special circumstances to consider in determining whether to seek volunteer counsel. Further, the fact that Defendant has counsel and Plaintiff feels this attorney "too swift in his litigation and far [too] experienced to contend with," does not prompt a different result. See Motion [#167] at 2. Although mindful of the difficulties faced by pro se parties, and regardless of whether the opposing party has counsel, courts and legislating bodies have made a distinction between civil and criminal cases regarding the necessity of counsel. See, e.g., Mallard, 490 U.S. at 301 (1989) ("Congress did not intend § 1915[(e] to license compulsory appointments of counsel. . . ."); Custard v. Turner, No. 06-cv-01036-WYD-CBS, 2008 WL 4838564, at *1 (D. Colo. Nov. 6, 2008) (unpublished decision) (noting that the court is without statutory authority to commit federal funds to "require counsel to represent" an indigent civil litigant). Here, I note that Plaintiff chose to bring this civil action voluntarily knowing the limitations he would face due to his lack of legal training and financial status. To the extent that Plaintiff feels that he cannot bear these responsibilities, he may voluntarily dismiss his case without prejudice pursuant to Fed.R.Civ.P. 41(a). However, while the case is pending, it remains Plaintiff's legal obligation to comply with my Orders and the Federal and Local Civil Rules. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).
To the extent that Plaintiff seeks summary judgment, the Motion is stricken. The Motion fails to comply with Chief District Judge Wiley Y. Daniel's practice standards which govern the pleadings filed by the parties in this case. Specifically, among other things, WYD Civ. Practice Standard III.B.3 requires that any motion for summary judgment include a "Movant's Statement of Material Facts." Plaintiff's Motion does not contain this section and is deficient on its face. Further, it is inappropriate to include a motion for summary judgment within another motion.
IT IS FURTHER ORDERED that the Clerk shall mail a copy of Chief Judge Daniel's practice standards to Plaintiff, a copy of which are attached to this Order.
PRACTICE STANDARDS for Civil and Criminal matters before CHIEF JUDGE WILEY Y. DANIEL UNITED STATES DISTRICT COURT DISTRICT OF COLORADO Courtroom A1002 Alfred A. Arraj United States Courthouse Chambers A1038, Tenth Floor Alfred A. Arraj United States Courthouse 901 19th StreetDenver, CO 80294-3589 Telephone: (303) 844-2170 FAX: (303) 335-2178 E-mail: Daniel_Chambers@cod.uscourts.govRevised as of July 6, 2009
TABLE OF CONTENTS
Page I. Introduction ............................................................... 3 II. General Procedures ......................................................... 4 III. Motions Practice ........................................................... 7 IV. Jury Instructions .......................................................... 9 V. Final Pretrial Conference and Trial Preparation Conference ................ 10 VI. Trial Information ......................................................... 13 VII. Trial Instructions ........................................................ 13 VIII. Special Instructions for Criminal Matters ................................. 16I. INTRODUCTION
A. Purpose and Authority1. Consistent with FED. R. CIV. P. 1, these practice standards are adopted to secure the just, speedy, and inexpensive determination of every civil action. These practice standards shall apply to all motions, petitions, and orders filed on or after July 6, 2009, and to all hearings and trials conducted on or after July 6, 2009. They may be revised without notice and may be modified by orders entered in specific cases. These practice standards have the force and effect of the orders of this court.
2. Failure to follow the Local Rules or the procedures outlined herein will result in an order striking the noncompliant filing or otherwise addressing the noncompliant action. Repeated failure to follow these procedures may result in an order granting other proper relief, including sanctions.
B. Relation to Local Rules
1. The procedures outlined herein are in addition to the requirements set forth in the Local Rules of Practice for the United States District Court for the District of Colorado ("Local Rules").
C. Access to Local Rules Practice Standards
1. Copies of the local rules are available athttp://www.cod.uscourts.gov/rules_frame.htm, from the District Court's home page (http://www.cod.uscourts.gov) under "United States District Court" at "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_frame.htm, from the District Court's home page (http://www.cod.uscourts.gov) under "United States District Court" at "Judicial Officers' Procedures," and from the clerk of the court in Room A105.
II. GENERAL PROCEDURES
A. Applicable Rules
1. Those appearing in the District Court must know and follow:
a. The Federal Rules of Civil Procedure or the Federal Rules of Criminal Procedure;
b. The Federal Rules of Evidence;
c. The Local Rules of Practice of the United States District Court for the District of Colorado; and
d. The Electronic Case Filing Procedures (Civil and Criminal)
B. Communications with Chambers
1. For information about the status of a motion or document, please (1) utilize the CM/ECF system available athttps://ecf.cod.uscourts.gov, or athttp://www.cod.uscourts.gov/pacer_frame.htm, or from the District Court's home page (http://www.cod.uscourts.gov) under "United States District Court" at "PACER," OR (2) contact the assigned civil docketing clerk, Eileen Van Alphen at (303) 335-2045, or the assigned criminal docketing clerk at (303) 844-2115.
2. For information about courtroom technology, trial preparation, or submission of trial exhibits, please contact the courtroom deputy clerk, Robert R. Keech, at (303) 335-2103.
3. If you need to reach my court reporter or wish to order a transcript, please contact Terri Lindblom, at (303) 335-2105.
4. For other information or assistance, you may contact my Chambers at (303) 844-2170. Please do not contact my Chambers about procedural or scheduling matters. My staff is not authorized to interpret these procedures, give legal advice or grant oral requests over the telephone. If you want the Court to take action, you will need to file a motion .
C. Matters Handled by the Magistrate Judge — Pretrial Matters
The magistrate judge and I will work together as a team to manage your case and administer justice.
1. The magistrate judge assigned to your case may enter a scheduling order and manage the discovery process. In carrying out pretrial discovery, the parties shall further the purposes of Fed.R.Civ.P. 1, so that discovery is conducted in a just, speedy, and inexpensive manner. In most cases, matters relating to discovery are referred to the magistrate judge. Upon referral of these matters, the period of discovery is left to the sound discretion of the presiding magistrate judge.
2. In most cases, the magistrate judge will set and hold the scheduling and pretrial conferences, as well as any appropriate status and settlement conferences. The magistrate judge shall have the authority to make substantive decisions. I reserve the right to handle any pretrial matters that I deem necessary. After the magistrate judge holds the Final Pretrial Conference, he or she will enter the Final Pretrial Order. Parties are directed to use the standard form of pretrial order attached to the local rules.
D. Settings
1. Once the Final Pretrial Order has been entered by the magistrate judge, my chambers' staff will set the Trial Preparation Conference and the trial. These are firm settings but subject to rescheduling in the event of unavoidable conflict with the Court's calendar.
E. Page Limitations
ALL filings, including all motions, objections to Magistrate Judge Recommendations, responses and replies thereto, SHALL comply with the following requirements:
1. The text of opening and responsive briefs shall not exceed fifteen (15) pages in length. The text of any reply brief shall not exceed ten (10) pages in length. See D.C.COLO.LCivR 7.1 and D.C.COLO.LCivR 56.1 for applicable time limits for filing responsive and reply briefs.
2. Exceptions to the above page limitations will be made only in extraordinary circumstances where the Court decides that the complexity and numerosity of issues compel briefs of greater length. Permission to file briefs of greater length shall be sought by way of an appropriate motion filed well in advance of the deadline for filing such brief. A motion requesting such permission must include sufficient detail to allow the Court to discern the necessity of additional pages.
3. For the separate page limitations applicable to Summary Judgment Motions, see Section III.B.
F. Deadlines
1. FED. R. CIV. P. 6 controls the computation of all time requirements in these procedures. These deadlines apply to all pretrial motions filed in criminal cases as well. Parties are expected to appropriately respond to all motions.
2. Compliance with all deadlines imposed by the Court is mandatory. If relief from a deadline is needed (i.e. extension of time to file or continuance of hearing), such relief must be sought by way of appropriate motion filed as far in advance of the deadline as possible. ORAL REQUESTS WILL NOT BE CONSIDERED. If the requested relief is not granted by order prior to the deadline, the parties must comply with the pre-existing deadline.
3. Permission to file motions, briefs, or other documents after the expiration of an applicable deadline shall be sought by way of appropriate motion. A motion requesting such permission must include sufficient detail to allow the Court to determine whether the relief requested is appropriate.
G. Citations
1. Citations shall be made pursuant to the most current edition of THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Review Ass'n et al. eds., 18th ed. 2005).
2. General references to cases, pleadings, depositions, or documents are insufficient if the document is over one page in length. The parties shall provide specific references in the form of pinpoint citations, page number or paragraph number to identify those portions of the cases, pleadings, depositions, or documents relevant to the argument presented. Only if the nature of the material does not permit a specific reference ( e.g., "The contract contains no provision for termination") is a general reference sufficient.
H. Testimony by Telephone or Video Conference
1. Together with FED. R. CIV. P. 43(a) for trials and 43(e) for motions, this practice standard governs requesting and taking testimony by telephone or video conference. A party may request that testimony be presented by telephone or video conference at a trial or hearing. A request for presentation of testimony by telephone or video conference shall be made by written motion or stipulation filed at least twenty-one (21) days before the trial or hearing at which testimony is proposed to be taken by telephone or video conference.
2. The court shall determine whether in the interest of justice the testimony may be taken by telephone or video conference. The granting of such motion is also subject to the availability of necessary equipment. If the court orders testimony to be taken by telephone or video conference, the court may issue such orders as are appropriate to protect the integrity of the proceedings.
III. MOTIONS PRACTICE
A. Special Instructions Concerning Motions to Dismiss
1. All motions to dismiss shall state in the caption or in the opening paragraph under which rule or subsection thereof such motion is filed.
2. If a motion to dismiss is filed pursuant to FED. R. CIV. P. 12(b)(6) or 12(b)(1) and matters outside the pleadings are presented with the motion, the motion shall include a brief statement addressing whether the motion should be converted to a Motion for Summary Judgment.
B. Special Instructions Concerning Motions for Summary Judgment
1. These procedures contemplate the filing of a single motion for summary judgment by a party. A party may NOT file multiple motions for summary without obtaining permission from the Court. Such permission will only be given in exceptional circumstances.
2. The statements of fact sections described below are NOT included within the page limitations imposed above in Section II. However, the statement of facts sections are intended to set forth only MATERIAL facts. Excessive or prolix statement of facts sections will be STRICKEN. Additionally, the statement of facts sections are intended to comprise a comprehensive recital of all facts material to the motion. There should be no recitation of material facts outside of these sections.
3. All motions for summary judgment must contain a section entitled "Movant's Statement of Material Facts." This Statement shall set forth in simple, declarative sentences, which are separately numbered and paragraphed, each material fact that the movant believes supports movant's claim that movant is entitled to judgment as a matter of law. Each separately numbered and paragraphed fact must be accompanied by a specific reference to material in the record which establishes that fact.
4. Any party opposing the motion for summary judgment shall provide a "Response to Movant's Material Facts" in its brief, admitting or denying the asserted material facts set forth by the movant. The admission or denial shall be made in 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.
5. If the party opposing the motion believes that there are additional disputed questions which have not been adequately addressed in the submissions made pursuant to this Section (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 movant is entitled to judgment as a matter of law. Each separately numbered and paragraphed fact shall be accompanied by specific reference to material in the record which establishes the fact or at least demonstrates that it is disputed.
6. If a reply brief is filed pursuant to D.C.COLO.LCivR 56.1, it shall contain:
a. A separate section titled "Reply Concerning Undisputed Facts," containing any factual reply which movant cares to make regarding the facts asserted in movant's motion to be undisputed. Any such factual reply shall be made in separate paragraphs numbered according to movant's motion and the opposing party's response and shall be supported by specific references to material in the record.
b. A separate section styled "Response Concerning Disputed Facts" admitting or denying the disputed material facts set forth by the opposing party pursuant to Section VI.3. above. The admission or denial shall be made in paragraphs numbered to correspond to opposing party'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.
7. The sole purpose of these procedures is to establish facts and to determine what facts are in dispute. Legal argument is not permitted here and should be reserved for separate portions of the briefs. For example, if it is believed that an established fact is immaterial, that belief should be expressed in the part of the brief that is devoted to legal argument, and the fact should be admitted. If, conversely, it is believed that the reference to material in the record does not support the claimed fact, that factual argument may appropriately be made.
C. Motions in Limine Trial Briefs
1. Motions in limine are discouraged. This is particularly true when such motions are evidence driven and cannot be resolved until evidence is presented at trial. In the event that the parties believe a motion(s) in limine is appropriate and are unable to resolve the matters raised therein without Court involvement, such motion(s) may be filed not earlier than seventy-five (75) days and not later than thirty (30) days prior to the Trial Preparation Conference.
2. No trial briefs will be allowed unless specifically ordered or authorized by the Court.
D. Hearings
1. Motions may be determined without a hearing or may be set for an evidentiary hearing or oral argument.
IV. JURY INSTRUCTIONS
A. General Information
The parties shall submit jury instructions (trial to jury) as set forth below no later than twenty (20) days before the Trial Preparation Conference. Preliminary instructions need not be submitted since it is my practice to read my own set of preliminary instructions to the jury.
1. Stipulated Instructions : To the maximum extent possible, the parties shall agree on one stipulated set of proposed jury instructions; only true conflict or uncertainty in binding substantive law (i.e., 10th Circuit, etc.) should prevent such agreement. The Court generally follows the form of preliminary instructions and instructions on substantive legal claims contained in the most current editions of the FEDERAL JURY PRACTICE AND INSTRUCTIONS (federal claims and introductory instructions) and the COLORADO JURY INSTRUCTIONS (state claims).
2. Disputed Instructions: To the extent that counsel are unable to agree on instructions, each side may tender a set of disputed instructions. Plaintiff's disputed instructions should be clearly labeled as "Plaintiff's" (numbered 1, 2, 3, etc.) and Defendant's disputed instructions should be clearly labeled as "Defendant's" (lettered A, B, C. etc.).
3. Authority for Stipulated and Disputed Instructions: For each stipulated and disputed instruction, the party submitting the disputed instruction shall indicate the source and authority for the instruction. If the source is a pattern instruction from a source not listed in Section IV.A.1., the party submitting the disputed instruction shall submit a copy of the pattern instruction and identify the authority underlying the pattern instruction.
4. Special Procedure for the Party Opposing a Disputed Instruction: The party opposing a disputed instruction shall file an Objection that contains: (1) an explanation for their objection to the disputed instruction; (2) the authority relied on in support of their objection; (3) whether they have submitted an alternate instruction to the disputed instruction; (4) an explanation for why the alternate instruction should be given; and (5) the number or letter of the alternate instruction and the authority relied on in support thereof.
5. Form of Submission: Parties shall file with the Court AND submit via electronic mail to daniel_chambers@cod.uscourts.gov (preferably in WordPerfect 12.0 format) the following sets of jury instructions and proposed verdict form: (1) Stipulated Set with Authority; (2) Plaintiff's Disputed Set with Authority; (3) Defendant's Disputed Set with Authority; (4) Plaintiff's Proposed Verdict Form; and (5) Defendant's Proposed Verdict Form (OR a Stipulated Proposed Verdict Form).
6. Final Jury Instructions and Verdict Form: Before or during trial, the Court will provide a set of proposed jury instructions and verdict form to the parties. Sometime near the close of evidence, a charge conference will be held during which the parties may object to instructions included in the Court's proposed set. Also at the charge conference, the parties may tender additional instructions from their previously submitted sets that were not included in the Court's proposed set. Counsel must have copies of these instructions and pertinent legal authority to submit at the charge conference. A final set of instructions will be distributed following the charge conference. Jury instructions are typically read to the jury before closing arguments. When deliberations commence, each juror receives a written copy of the jury instructions and verdict form.
V. FINAL PRETRIAL CONFERENCE AND TRIAL PREPARATION CONFERENCE
A. General Information/Procedure
1. In all civil cases, both a Final Pretrial Conference, pursuant to FED. R. CIV. P. 16 and D.C.Colo.LCivR 16.3, AND a Trial Preparation Conference will occur prior to trial.
2. Unless otherwise specified, the Magistrate Judge shall preside over the Final Pretrial Conference. The primary purpose of the Final Pretrial Conference is to complete and finalize the parties' proposed Final Pretrial Order. The Proposed Final Pretrial Order shall be prepared in accordance with the Instructions for Preparation of Final Pretrial Order as set forth in D.C.Colo.LCivR Appendix G.
3. Following entry of the Final Pretrial Order, the Court will set dates for any trial and a Trial Preparation Conference. Judge Daniel shall preside over the Trial Preparation Conference. Counsel who will try the case must attend. Failure of chief trial counsel to attend the conference may result in sanctions, including vacating the trial date, striking claims or defenses, and imposition of attorneys' fees, among other things. This is counsel's opportunity to invite the Court's attention to any problems which need to be resolved before trial commences or which may arise during the course of the trial.
4. No later than two business days prior to the Trial Preparation Conference, counsel for the parties shall file the following:
5. A final witness list (using the form below) containing the name of each witness to be called, the proposed date(s) of the witnesses' testimony, and the anticipated length of the witnesses' testimony. Witnesses not listed in the Final Pretrial Order may not be listed absent approval of the Court.WITNESS PROPOSED DATE(S) AND LENGTH OF TESTIMONY
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Wiley Y. Daniel Case No. _______________ Date: _______________ Case Title: _____________________________________________ _______________________ WITNESS LIST (Plaintiff/Defendant) ______________________ ______________________ ______________________ ______________________ ______________________ ______________________ ______________________ _____________________________ Copies of this form are available at (http://www.cod.uscourts.gov) under the link "Judicial Officers' Procedures" or from my Courtroom Deputy, Robert R. Keech, at (303) 335-2103.6. A final list of proposed exhibits (using the form below). Plaintiff's Exhibits shall be numbered (1, 2, 3, etc.) and Defendant's Exhibits shall be lettered (A, B, C, etc.). If there are more than 26 exhibits for the Defendant, mark them as A1 through A99, B1 through B99, etc., or group the exhibits together using A1 through A4, B1 through B14, etc., as the evidence warrants. Do not use double or triple letters under any circumstances. There shall be no duplicate exhibits (i.e. exhibits listed on both Plaintiff's and Defendant's exhibit lists). Counsel shall stipulate to the admissibility of exhibits to the maximum extent possible and indicate all stipulated exhibits on the list submitted at the Trial Preparation Conference. EXHIBIT LIST
CASE NO. _________ PLAINTIFF'S LIST _____ DEFENDANT'S LIST _____ THIRD PTY DEFTS. LIST _____ CASE CAPTION __________________________ vs. _________________________ PAGE NO. _____ DATE __________ LIST PLAINTIFF'S EXHIBITS BY NUMBERS (1, 2, 3, etc.) and DEFENDANT'S BY LETTER (A, B, C, etc.) EXHIBIT WITNESS DESCRIPTION ADM/ STIP OFFER RECD REF. RUL. COMMENTS/ NO/LTR AUTH RSVD. INFO. Copies of this form are available at (http://www.cod.uscourts.gov) under the link "Judicial Officers' Procedures" or from my Courtroom Deputy, Robert R. Keech, at (303) 335-2103.7. Proposed voir dire questions.
8. Proposed Findings of Fact and Conclusions of Law along with a proposed order for judgment or other remedy (trial to Court).
a. Findings of Fact: To the maximum extent possible, the parties shall agree on the facts. Proposed findings of fact should be stated as nearly as possible in the same order as their anticipated order of proof at trial. To the extent that the parties cannot agree on one version of facts, each party shall submit their own proposals and underline all disputed facts.
b. Conclusions of Law: Conclusions of law need not be underlined even where disputed. Counsel shall key their closing arguments to their proposed findings and conclusions so as to point out the evidence they rely on to support their proposals.
9. Any stipulated or proposed amendments to the Pretrial Order for consideration by the Court.
10. A list of issues and/or motions that require resolution prior to, or at, trial.
VI. TRIAL INFORMATION
Unless instructed otherwise, trials are normally set to begin at 9:00 a.m. On the first day of trial, counsel are normally expected to be present at 8:30 a.m. to go over any final matters before the commencement of trial. The normal trial day begins at 9:00 a.m. and continues until 5:00 p.m. The Court will recess for a lunch break as well as short mid-morning and mid-afternoon breaks.
VII. TRIAL INSTRUCTIONS
A. Technology
Counsel shall familiarize themselves with the technology in the courtroom prior to trial. Please make arrangements to test the equipment with my courtroom deputy clerk, Robert P. Keech, (303) 335-2103, at least ten (10) days before the start of trial.
B. Transcripts
If you desire Real Time or daily copy transcripts, you must make arrangements with my court reporter, Terri Lindblom, (303) 335-2105, at least thirty (30) days before the start of trial.
C. Glossary
Where necessary, the Court may direct the parties to provide the Court, the court reporter, the courtroom deputy clerk, and opposing counsel with a glossary of any unusual or technical terminology.
D. Depositions
All original deposition transcripts should be delivered to the courtroom deputy clerk before the start of trial.
1. Videotaped Depositions: If videotaped deposition testimony is to be used, the Court and all parties must be given at least ten (10) days advance notice. The party offering the testimony must arrange for any necessary technology.
2. Deposition Testimony: Counsel are reminded that, pursuant to FED. R. CIV. P. 5(d), depositions, interrogatories and requests for admissions are not filed with the Clerk unless on special order of the Court. The original deposition transcripts should be in possession of the party to whom they are delivered. They must be brought to trial. The following guidelines should be used for preparing depositions for use as testimony at trial:
a. Jury Trials: Advise opposing counsel of your proposed offer by page and line reference within twenty (20) days prior to trial to enable the preparation of objections and the offer of additional portions of the transcript. The party offering the deposition testimony is required to provide a person to read the answers.
b. Court Trials: The Court will determine how depositions will be used at the time of the Trial Preparation Conference. The offering party shall provide the Court with two copies of the transcript prior to trial, each with the plaintiff's designations highlighted in yellow and the defendant's designations highlighted in blue. (The highlighting should be accomplished in advance of trial, so that the highlighted deposition transcripts can be marked as an exhibit and tendered to the courtroom deputy at the beginning of the trial.)
3. Objections to Use of a Deposition: Objections to use of a designated deposition or videotape deposition shall be filed no later than ten (10) days prior to trial. The parties shall attempt to resolve these objections prior to trial. Objections that are not resolved by the parties prior to trial must be marked on a copy of the written transcript and provided to the Court. These objections will be resolved at trial (not prior to trial).
E. Exhibits
Provide three copies of your updated exhibit list to my courtroom deputy clerk on the morning of trial. All exhibits must be marked with exhibit labels which identify the case number and exhibit number or letter. These labels can be obtained from the clerk's office. Counsel are encouraged to mark exhibits in a simple fashion to make a cleaner record. For clarity of the record, each exhibit shall consist of one document and not a group of documents as one exhibit.
1. Original Exhibits (to be used by the witnesses): All original exhibits shall be submitted to my courtroom deputy clerk in three-ring binders at the start of the trial. Include all exhibits in these notebooks. (Even those to which there is no stipulation from opposing counsel.)
a. A label shall be placed on the spine of each binder that shows the volume number and which exhibits are contained within each binder.
b. Each original exhibit shall bear an extended tab showing the number or letter of the exhibit.
c. Each document shall be paginated including any attachments thereto.
2. Copies of Exhibits: In addition to the original exhibit, one copy of all exhibits shall be provided to the Court. The copies shall be submitted in the same format as the original exhibits. Copies of exhibits are not necessary for the Court Reporter.
3. Exhibits for Jurors: Due to the technology in the courtroom, exhibit notebooks for jurors are no longer permitted.
4. Use of Exhibits During Trial: The courtroom deputy clerk will present the exhibits to the witnesses. Instead of the traditional "I hand you what has been marked for identification as plaintiffs exhibit number___," counsel may simply say, "Please look at exhibit number one . . ." and the exhibit will be placed before the witness. Counsel need not approach the witness as part of this process.
5. Submission of Electronic Copies of Trial Exhibits: The Court shall advise the parties at the Trial Preparation Conference whether they will be required to submit electronic exhibits to the Court pursuant to the Technical Specifications of Judge's Electronic Copies of Trial Exhibits. Copies of this document are available at (http://www.cod.uscourts.gov) under the link "Judicial Officers' Procedures" or from my Courtroom Deputy, Robert R. Keech, at (303) 335-2103.
F. Witnesses
Provide three copies of your updated witness list to my courtroom deputy clerk on the morning of trial.
1. All witnesses are required to remain in the witness room until called to testify unless otherwise ordered by the Court. Counsel or a member of the team will be responsible for retrieving witnesses from the witness room when called to testify.
2. Questioning of Witnesses During Trial: Counsel shall make certain that verbal responses are elicited from all witnesses during questioning.
G. Settlement
The Local Rules require that in order to avoid assessment of jury costs, the parties must notify the Court of a settlement before noon on the last business day before the scheduled trial date. See D.C.COLO.LCivR 54.2.
VIII. SPECIAL INSTRUCTIONS FOR CRIMINAL MATTERS
A. General Information
Unless specifically stated otherwise, all of the practice standards set forth in this document apply with full force to all criminal matters where applicable.
B. Deadlines
The deadlines set forth in FED. R. CIV. P. 6 apply to all pretrial motions filed in criminal matters. Parties are expected to appropriately respond to all motions.
C. Hearings
1. Change of Plea Hearing: Upon the filing of a Notice of Disposition, my chambers' staff will set a change of plea hearing on the Court's calendar. Counsel for the parties are ordered to deliver all change of plea documents separately to my chambers AND to the Probation Department not later than 72 HOURS before the hearing date. If the documents are not timely submitted, the hearing will be VACATED. There will be no exceptions to this policy, and sanctions may be imposed for failure to comply.
2. Sentencing Hearing: At the change of plea hearing, my chambers' staff will set a sentencing hearing on the Court's calendar.
a. Motions for Variance/Downward Departure: Based on the decisions by the Supreme Court of the United States in Gall v. United States, 128 S. Ct. 556 (Dec. 10, 2007) and Kimbrough v. United States, 128 S. Ct. 558 (Dec. 10, 2007), all motions for variance, downward departure, upward adjustment, and for any sentence outside the advisory guideline range shall be filed not later than fourteen (14) days prior to sentencing. Responses to these motions shall be filed not later than seven (7) days prior to the sentencing hearing.
b. Motions for Acceptance of Responsibility/Motions to Dismiss Counts/Indictment: These motions and proposed orders as to these motions, shall be filed not later than seventy-two (72) hours prior to the date of sentencing. Proposed orders shall also be electronically submitted to the chambers e-mail account. This deadline does not in any way alter or affect deadlines for the filing of objections or other pleadings established pursuant to Rule 32 of the Federal Rules of Criminal Procedure. There will be no exceptions to this policy, and sanctions may be imposed for failure to comply.