Dear Author’s opposition to the remand #notchilled

Dear Author has filed their opposition to Ellora’s Cave’s motion to remand to state court, and there’s actually quite a bit of information contained in the short opposition to remand and the exhibits.

For those who want to read this, here’s the opposition to the motion to remand, and here are Exhibit A and Exhibit B supporting that motion.

As a reminder, at this point in the litigation there are four basic threads:

A. The claim by EC against DA alleging defamation.
B. The motion for a temporary restraining order by EC.
C. The removal of the case to federal court.
D. The counterclaim by DA against EC alleging abuse of process.

In this post, I will discuss thread B (the motion for the TRO) and thread C (the removal to federal court), but not in that order.

Thread C: the removal of the case to federal court.

Where we are: On October 20th, Dear Author removed this case to federal court. On October 24th, Ellora’s Cave moved to remand the matter to state court. Now, Dear Author has filed their opposition to that motion.

The opposition to the motion is trying to do two things. First, and most obviously, it’s a response to Ellora’s Cave’s motion to remand which was filed on October 24th. Second, Dear Author uses this motion to contend that Ellora’s Cave is not acting in good faith.

There’s a lot going on in this motion, so I’m going to break it down even further.

Is the motion going to succeed?

Out of the gate, Dear Author contends: “This is a frivolous contention, which if accepted, would run counter to all precedent, and particularly against Sixth Circuit law.”

This is a really strong statement. “Frivolous” is a word with particular legal meaning. I said in discussing Ellora’s Cave’s motion to remand that I didn’t think the question was even close. “Frivolous” goes farther than that. It means “completely without support”–and if a judge finds a motion to be frivolous, this can result in sanctions. See F.R.C.P. Rule 11(b)(2) and 11(c).

There is some additional description of the history of this case to establish that Dear Author removed the case as swiftly as possible and participated in the suit at the state level exactly as much as they needed to do so. But basically, nothing here should surprise anyone who read my last post.

An oversimplified recap of that post: Ellora’s Cave is claiming that Dear Author availed themselves of the state courts too much, and so are stuck with the state court. But EC cited a case that said, in essence “10 is not too much.” Dear Author’s participation at the state court level is at 2. Ellora’s Cave’s explanation was, basically, “2 is a different number than 10.”

But if 10 is not too much, 2 is definitely also not too much, and their contention that 2 is greater than 10 does seem…pretty frivolous. On the frivolity scale, it’s not as bad as claiming that the personal income tax is unconstitutional, but it’s pretty bad.

Likely result: I judge Ellora’s Cave’s likelihood of success on this motion to be zero. Not close to zero; actually zero. Randazza could have filed a short memo with the legal equivalent of, “Are you shitting me?” and the court would have ruled in his favor.

My level of expertise: Civ Pro, not my wheelhouse, but this seems pretty cut and dry and I’m very confident.

Will the judge find this motion to be frivolous?

If this were just a case of “oops, I screwed up, I should have read that case law more thoroughly,” a judge is less likely to give a smack-down. Honest mistakes are forgivable. So Randazza also tries to demonstrate that this motion was not just filed because someone made an honest mistake.

Specifically, he wants to establish a motive for them to file the remand motion. That is discussed on pages 5-6 of the opposition.

In this case, he claims that this remand motion was filed solely to delay the hearing on the TRO–and Randazza states that they won’t seek attorneys’ fees and court costs for filing this frivolous motion, so long as Ellora’s Cave doesn’t monkey around with the TRO hearing. (More on this later.)

I don’t know if the judge will actually call the conduct here frivolous. There are reasons why judges don’t always call things frivolous–for one, there are potential sanctions to the attorney for filing a frivolous motion. Some judges are loathe to label conduct as frivolous. Others do so quite willingly.

We’re going to find out fairly soon how much tolerance the judge in this case has.

Establishing a pattern and practice of plaintiffs’ behavior

Finally, there are multiple places in the opposition where Randazza casts EC’s behavior in an extremely unfavorable light.

At its core, this is a SLAPP suit – a suit devoid of merit, filed for an improper purpose. Plaintiffs have made no secret of the fact that it is their intention to make this case more inefficient and expensive than necessary, in order to achieve the litigation’s true purpose – to punish the defendants through the stress and expense of a lawsuit and to frighten anyone else who may dare to speak the unflattering truth about Ellora’s Cave — all of this despite the fact that there is nothing remotely actionable in the Article at issue in this case. This is a classic SLAPP suit, and this kind of motion practice is highly symptomatic of one.

Opposition at 6.

There is also this footnote:

[2] On 7 October, an email was sent to at least one of Ms. [Litte]’s supervisors. On 14 October that same email was forwarded to the entire department within which Ms. [Litte] works. This is consistent with prior actions by directors of Ellora’s Cave. Ellora’s Cave has also engaged in acts to try and intimidate witnesses in this case. Therefore, sending this subpoena on short notice was of great importance. Since the Defense addressed this with Plaintiff’s counsel, these actions have waned.

Opposition at 3.

This footnote does not squarely claim that Ellora’s Cave or its directors sent the emails. It says the emails were sent–that’s the use of the passive voice to obscure the actors–and that such an action would be consistent with things that the directors of Ellora’s Cave have done before. Randazza is usually very good about not unnecessarily using the passive voice, so my guess is that DA does not yet have firm proof of who sent that email. In order to know that, they’ll need a subpoena from Google, and they may well need a subpoena from the ISP that Google gives them once they get an answer.

(As a note, I will be consistently replacing Jane’s real name with her pseudonym. We all know her as Jane Litte so let’s call her that.)

This brings me to…

Thread B. The TRO hearing.

Where we are: When EC initially filed their suit, they moved for a temporary restraining order. There was an initial hearing on September 30th, where nothing was decided. A later hearing was scheduled for October 27th in state court. When Dear Author removed the case to federal court, the federal judge announced on October 21st that he would hold a hearing on the TRO on October 29th. On October 24th, Ellora’s Cave asked to continue that hearing.

The last time I talked about this, I said that motions to continue because of schedule conflicts were fairly routine, and that Ellora’s Cave’s request to continue would probably be granted.

(Let me pause this discussion to deliver a lengthy mea culpa. I made a handful of mistakes when discussing this motion last time. People make fun of lawyers because the answer to every question is always “it depends.” But this illustrates why we are supposed to do that. What I should have said last time was something more like this: “Motions to continue are often granted so long as there is no underlying hanky-panky and the parties are acting in good faith.”

Here are the mistakes I made:

First, I assumed there would be no assertions of hanky-panky. What was I thinking? Hanky-panky should have been presumed.

Second, I should have looked at the timeline with a more jaundiced eye. The hearing was scheduled for six business days in the future. Randazza had to fly across the country for said hearing. So when EC waited three business days to ask to move, I should have at least tilted my head. But this didn’t register in my head as egregious. I have forgotten what it is like to have…a schedule for anything (literally: I have one event on my calendar for next week, and it’s a restaurant reservation) (no, my life is not as fun and carefree as that makes it sound) (it really just means I always feel guilty for not doing more work).

Third, I need to cop to a general inexperience with trials, period. (My trial level inexperience will strike again, I’m sure). In my experience, district courts have existed solely to create a record of reviewable decisions for appellate courts. I’ve observed exactly one trial case close up, when the court of appeals judge I was working for sat by designation, and even then we only picked it up because the judge who’d been hearing motions/discovery before had a scheduling conflict. So. I have zero experience with scheduling questions.

In short, I should have seen more to this motion than I did. I didn’t. From here on out, I’ll try to remember to signpost how firmly I feel something is within my direct expertise so you can judge for yourself how likely I am to get it right.

Here ends the mea culpa–back to the discussion of the motion.)

If you want to understand what is going on here, you should read Randazza’s Exhibit B to the latest filing.

Here’s how the schedule went down, according to Randazza’s email to opposing counsel and the opposition to the remand motion:

  1. On October 21st, the court scheduled a hearing on the TRO.
  2. On October 22nd, counsel for EC informed Randazza that he was going to file a motion to continue the TRO hearing the next day.
  3. The next day, October 23rd, no motion to continue was filed, and Randazza bought flights and hotel accomodation for the 29th.
  4. On October 24th, the motion to continue was filed.
  5. Shortly after that was filed, Randazza sent the email that is the subject of this exhibit.
  6. Sometime after that–probably later on October 24th–the lawyers spoke over the phone about this. According to Randazza: “The greater underlying reason for this motion came to light during conferences to obviate the need for this opposition – when Plaintiffs noted that they wished to buy time in order to file an amended motion for injunctive relief.” Opposition at 6. During that phone conversation, counsel for Ellora’s Cave apparently said that it was considering withdrawing its request for a TRO, because reasons.

In other words, Randazza claims that the only reason Ellora’s Cave filed a motion to remand was so that they could argue there was a reason to bump the TRO hearing, which it does not want to happen. And the reason, Randazza contends, they want to continue the TRO hearing is that they filed a half-assed motion in support of a TRO with a bare affidavit. Now that Dear Author has filed a full-fledged opposition to the TRO, with exhibits and so forth, they want to withdraw their prior opposition and try again.

Remember how I said that a TRO hearing can function as something of a mini-trial on the merits? Randazza claims that Ellora’s Cave doesn’t want that to happen: “The Motion for Injunctive Relief will, no matter its result, help advance this matter to an efficient and expeditious termination. But, the Defendants do not want an ‘efficient and expeditious’ termination. In fact, Plaintiffs have threatened to simply withdraw the motion for injunctive relief, now that it has been fully briefed, preparations made, and travel arrangements purchased. This is not because they no longer want the relief, but because they are aware that an order narrowing the issues in the litigation will be detrimental to the goal of financial attrition through protracted and multiplied proceedings.” Opposition at 6-7.

Will Ellora’s Cave get smacked down at this point? We have not heard Ellora’s Cave’s side of things here, and I doubt they will say, “Yes, we agree with everything Randazza says. We have invited Hank and Pank over for tea, and we need to continue the hearing until they will arrive.” At this point, I’m not competent to judge.

I doubt I’ll be able to guess even if we do hear their point of view. Courts don’t like having to babysit parties every step of the way. Judges who see this kind of thing starting will glare sternly and tell remind lawyers that they’re officers of the court and they need to behave like motherfucking adults. Sometimes that’s all that is needed to make things start ticking along as they should.

But I’ve learned my lesson. I’m not going to presume a lack of hanky-panky from here on out. And I suspect that Mr. Hank and Ms. Pank will meet for biscuits on a regular basis.

35 thoughts on “Dear Author’s opposition to the remand #notchilled

  1. Just b/c you asked us to check you, I’ll point out that your header to the Thread C analysis reads: “Where we are: On October 20th, Dear Author removed this case to state court. On October 24th, Ellora’s Cave moved to remand the matter to state court. Now, Dear Author has filed their opposition to that motion.” I think you mean DA removed this case to federal court.

    Thanks so much for continuing with this. Even when your analysis is imperfect, it is immensely helpful to be getting an informed take on all of this.

  2. Thanks for this. Timelines are a bitch. Some judges are stricter about them than others. I hope the judge assigned to this case is one of those who is strict about them.

  3. Thanks for the update.
    First 3 links don’t work FYI, it looks like they are missing the ‘ecda’ part of the url.

  4. So let me get this straight:

    An email gets sent to Jane’s supervisor and then, a few days later, to everyone in Jane’s department. Jane can’t say for sure that the email was sent by EC but after Marc Randazza spoke to ECs solicitors about it and suggested that if it was EC, EC should cease and desist, the emails stopped.


    Well, that would be extraordinary wouldn’t it?

  5. @Kaetrin: Actually, if I’m reading this right, what happened was: emails sent to one of Jane’s supervisors and then to the whole department. Randezza subpoenaed Google for the email address, then talked to EC’s counsel, emails “waned” (which doesn’t necessarily means “stopped altogether” in my brain), and Randazza agreed to withdraw subpoena.

    As an aside, I can almost hear all the profanity Randazza uses in his blog posts in that email. Blistering, indeed.

  6. @azteclady: I understood it differently. I believe it was explained that the subpoena request had been directed to the state court and was withdrawn when the case was moved to the federal court. To have left it in the first court’s hands would have been improper. However the way remains open for a request to be made to the federal court if the DA team were to choose to do so.

    At least, I think that’s how it stands.

  7. @Mzcue: You know, upon another reading, I think you are correct.

    I don’t think Randazza or Jane would agree to never find out who was behind the emails. I do hope they track down whomever it was.

  8. You know, if it wasn’t for the amount of time and financial resources of the Defendent being wasted AND the careers and livelihood of hundreds of people being held hostage by the Plaintiff all this would be epically funny. Instead it’s like watching the iceberg getting closer from the deck of the Titantic or the ingenue in a horror movie deciding to go explore the dark basement on her lonesome. You know diaster is lurking and you can’t do anything about it.

  9. I thought I’d been following along pretty closely, but this is the first I’ve heard of emails being sent to Jane’s place of employment. Wow.

    EC’s claim of “software glitch” for the late royalty payments would be easy to prove, don’t you think? There must be lots of communication with the vendor about the software since the problem has been ongoing for close to a year now. I’ll eat my hat if they have actual proof.

  10. @Kitty:

    We should hear soon. My guess is that this morning the phone conferences have been flying. Maybe the parties will work it out amongst themselves. Maybe we’ll get an order from the judge. We’ll find out soon.

  11. @Kitty:

    Apparently, just after I posted I checked the docket and there’s an order granting the motion for a continuance. The order as posted is kind of messed up–I think there must be an error with the document. I’m hoping it gets cleaned up & so am not posting it quite yet. But the general idea (there’s only one page and the formatting of that page is wonky) behind the order is that the judge is giving the plaintiffs 7 days to file a reply to the opposition to the remand, and appears to be punting any decision on the merits until there’s a response to the jurisdictional question.

  12. Thanks for the update, Courtney.

    Why do you think they’re being given the chance to file again? Is it because their first motion for remand was so terrible?

  13. @Kitty:

    They’re not being given a chance to refile. They’re being given a chance to write a reply.

    Typically, there are three briefs filed to the court:

    * The opening brief in support
    * A brief in response
    * A reply brief, addressing any issues raised in the response.

    It’s typical to file a reply, not extraordinary. The judge is just setting a timeline for that.

  14. So the basic takeaway from the granting of the motion to continue means that Randazza is out his plane ticket because Plaintiff’s counsel might be jerking him around because of TE? I’m starting to get a headache although the one bright light in all of this is that I enjoy reading his filings.

    Do you think all this means Jane/DA is going to need to increase the GoFundMe goal? If she’s already spent $30,000, I’m nervous for her.

  15. @Josh:

    There is only one page. It’s a marginal entry. What that means is this: In the old days, the judge would scrawl out basic orders in the margin of the motion. These days, they imprint it digitally on the original motion and highlight it in yellow. The full text of the order is on top.

  16. @Barbara: I was thinking about that, too. However, there are a lot of us willing to pony up again if it comes to that. Maybe not in 4 figure increments, but it’s still a freedom of speech issue at heart. Plus, I think the way the $30K figure was stated it noted the value of the legal services, not the cost. There may be some leeway there, too.

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  18. SO, TE’s lawyer suddenly realized he had a conflict? That shit does not go down well in the Boston federal court.

    (FWIW, I wish Rachel Anne Nunes had an easy a time raising money for her copyright case against Tiffinie Rushton.)

  19. @Pete Morin: I haven’t seen anything about TE’s lawyer having a conflict & there’s nothing on the docket. Can you source this?

    @Amy Ennis: The hearing didn’t happen. I haven’t blogged about it directly because it’s a small thing, but above I link to the order continuing the hearing.

  20. @Courtney Milan

    When I read your ‘ramblings’ I have no problem following your logic, because I make the same assumptions you do. In the context, to me ‘conflict’ meant ‘schedule conflict’ vice ‘conflict of interest’.

    Given that J. Adams gave EC 7 days to file a reply after Randazza filed his opposition, I doubt the court will sanction either party for any conduct short of pissing on the bench in open court. But I have never had any contact with J. Adams, and those who have are better able to judge than I. I’m just going by what I have seen with other judges.

  21. Doesn’t sound as if this judge has a high tolerance for BS. Which I believe to be good.

    Judicial Preferences

    Judge Adams is of the view that the Case Management Conference is of extraordinary importance. He expects counsel to be prepared with the factual predicate from the standpoint of counsel’s client. Judge Adams expects the client to be present; where the client is a corporate entity, he expects a person to be present who has the greatest knowledge of the relevant facts. This is probably NOT in-house counsel. Judge Adams tailors the Case Management Plan based on the information supplied at the CMC by counsel and parties.

    Requests for Telephonic Appearances
    Requests for telephonic appearances are not encouraged. However, if necessary for counsel or parties the request to appear telephonically, a Motion shall be filed in written motion form and filed with the Clerk of Court no later than seven days prior to the scheduled appearance. The requesting party is responsible for initiating the call to the court.

    Telephone Contact with the Court
    Telephone calls should be limited to scheduling matters or as permitted by local rule. Calls regarding the timing of the courts rulings on motions for continuances (etc.) are innappropriate. Extensions/continuances must be sought well in advance of the scheduled date.

    Cell Phones
    Cell phones are not to be used in hallways. Counsel may utilize cellular phones in chambers during conferences, with permission of the court.

  22. Home » Judges » Judge John R. Adams » Civil and Criminal Practices and Procedures
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    Civil and Criminal Practices and Procedures

    A. Commencement of Civil Action – General Procedures
    1. Case Management / Electronic Case Files System
    The United States District Court for the Northern District of Ohio utilizes a Case Management / Electronic Case Files System (CM/ECF) docketing system. The CM/ECF system provides the bench, the bar and the public with electronic access to up-to-the minute docket sheets as well as to the documents themselves.
    It is the court’s expectation that, absent a showing of good cause, all counsel who regularly practice in this district will file electronically and accept electronic notice of filings in any civil case before this court. For those civil cases in which the court determines that good cause is shown for not filing electronically, all documents that are filed on paper will be scanned by the Clerk’s Office and placed into the CM/ECF system.

    2. Case Management Conference (CMC)
    Held approximately 30 days after an Answer has been filed.
    The court follows Local Rule 16(b) and Fed.R.Civ.P. 26 regarding the agenda for the CMC, the parties’ planning meeting and initial disclosures. Plaintiff’s counsel is responsible for arranging the planning meeting and for faxing to chambers, 3 days before the CMC, a jointly signed report of that meeting.
    Per Local Rule 16.3(b)(1), the court expects lead counsel and parties to attend the CMC unless they have been given leave to attend by telephone well in advance.

    3. Case Management Plan
    Includes deadlines for discovery and the filing of Dispositive Motions, the method for handling discovery disputes, page limitations for dispositive and other motion practice, and the date of the status hearing. Generally, standard time limitations on discovery are imposed in accordance with the track to which the case has been assigned.

    4. Policy Concerning Contacts with Judges and Clerks
    Judge Adams accepts no ex parte communications. Counsel may contact the courtroom deputy clerk regarding scheduling and miscellaneous matters only. Contact with law clerks is limited to procedural matters only, unless instructed by the court.

    5. Motions and Briefs
    Strictly follows Local Rule 7.1. Memoranda of law for dispositive motions are limited to 10 pages for expedited cases, 20 pages for standard and administrative cases, 30 pages for complex cases, and 40 pages for mass tort cases. Memoranda relating to all other motions may not exceed 15 pages. Leave to exceed these limitations must be sought well in advance of the deadline for filing a memorandum, and is rarely granted. Judge Adams believes these limitations benefit counsel as well as the court. If a motion or brief exceeds 40 pages, 2 courtesy copies should be supplied to the court.

    B. Civil Pretrial Procedures
    1. Motion Practice
    Judge Adams rules on all motions based on the written briefs/memorandum. He rarely hears oral argument of motions. Unopposed motions are not automatically granted, but are ruled on expeditiously. Because Judge Adams rarely grants emergency motions ex parte, he generally requires a party filing an emergency motion to notify the opposing party and/or counsel of the filing and provide them with a copy of it.

    2. Settlement
    Judge Adams believes that the attorneys and parties should view the litigation process as a vehicle to resolve a controversy. Accordingly, he expects counsel to earnestly engage in settlement discussions before the CMC and throughout litigation. He makes active use of the court’s ADR program and, with the consent of the parties, frequently engages in mediation efforts himself. Pretrial conferences may be treated as settlement conferences, and the parties and counsel are required to attend these conferences prepared to discuss settlement. When a settlement conference is set on a case, Judge Adams requires that at least fourteen calendar days prior to the settlement conference, Plaintiff’s counsel shall submit a written itemization of damages and settlement demand to Defendant’s counsel, with a brief explanation of why such a demand is appropriate. No later than seven calendar days prior to the settlement conference, Defendant’s counsel shall submit a written offer to Plaintiff’s counsel with a brief explanation of why such offer is appropriate. If settlement is not achieved, Plaintiff’s counsel shall deliver fax copies of these letters to Judge Adams chambers at least two to three days prior to the settlement conference. Plaintiff must provide a monetary breakdown of damages claimed to the court.

    3. Discovery Disputes
    Follows Local Rule 37.1. The order for resolving discovery disputes under this rule is: (1) a good faith resolution effort by counsel, (2) a telephone conference call with the court, triggered by a short letter from counsel, (3) position letters, if solicited by the court, and (4) a formal Fed.R.Civ.P. 37 discovery motion. The court may refer discovery matters to a Magistrate Judge at the court’s discretion.
    Follows the express limitations on the number of interrogatories and depositions set forth in the Local Rules, which limitations are dependent upon the track to which the case has been assigned.

    4. Status Hearing/Settlement Conference
    Pursuant to the Case Management Plan, counsel are required to fax to chambers at least 5 days before the status hearing/settlement conference, a status/settlement report indicating a brief overview of the facts, the status of discovery, the status of settlement discussions, and any other matters counsel feel should be addressed by the Judge at the conference. The Judge expects the parties to discuss settlement in specific terms prior to faxing the report to chambers, and to include the end result of those discussion(s) in the confidential faxed report.

    5. Final Pretrial Conference/Trial Order
    Judge Adams has a standard trial order form. The order sets forth requirements for a joint statement of the case, a joint statement of undisputed facts, witness lists, stipulations, exhibit lists, depositions and other discovery material to be used at trial, a single joint submission of jury instructions agreed upon by all parties, and proposed findings of fact and conclusions of law.

    6.Continuances / Requests for Telephonic Appearance
    All requests for Continuances requiring the appearance of counsel, parties or representatives (including Case Management, Status , Settlement Conferences, Pre-Trials, etc.) shall be filed in writing with the Clerk of Court no later than seven days prior to the scheduled date.

    7. Extensions
    Judge Adams attempts to establish reasonable deadlines for discovery, Identification of Experts and supplying Expert reports, Dispositive Motions, etc. All requests for extensions shall be filed no later than fourteen days prior to established deadlines. Extensions will be granted only in exceptional circumstances.

    C. Criminal Pretrial Procedures
    1. Bail Procedures
    Judge Adams determines bail and handles his own arraignments whenever possible. A Magistrate Judge determines bail for those defendants arrested on a warrant pursuant to a complaint filed by the United States Attorney’s Office.
    2. Discovery Procedures
    Unless there is a well-founded concern for the safety of the witness, the parties are strongly encouraged to provide Jencks and reciprocal Jencks material no later than the close of proceedings the day before the witness is expected to testify.

    3. Pleas
    Strongly prefers that pleas be written. Does not generally object to plea arrangements that involve sentencing recommendations, and does not generally object to binding agreements under Fed.R. Crim. P. 11(e)(1). At the arraignment, establishes a change of plea deadline approximately two weeks before trial.

    4. Sentencing Practices
    Sentencing recommendations of the probation officer are not divulged. Counsel must raise any objections to presentence investigative reports, guideline computations, and other such matters in writing prior to sentencing.

    D. Trial
    1. Trial Date
    Provides notice of trial at the status hearing in civil cases and at the arraignment in criminal cases. Rarely grants continuances. Requests for continuances in civil cases must be made by motion signed by the parties and counsel.
    Trial schedule is from 9:00 a.m. to 5:00 p.m. with a one-hour lunch break, one midmorning 15-minute break, and one midafternoon 15-minute break. Expects counsel to be present in the courtroom at 8:30 a.m. to address matters outside the presence of the jury.

    2. Trial Briefs
    Requires counsel to file trial briefs in all cases and to send all other counsel a copy of all briefs. Trial briefs must include a synopsis of the facts, discussion of the controlling law, and discussion of any evidentiary issues likely to arise at trial.

    3. Voir Dire
    Judge Adams conducts an extensive voir dire which includes standard questions and may incorporate some of the parties’ proposed questions. After he completes his questioning, he may allow counsel approximately ten minutes per party to ask supplemental questions if the parties are not numerous. Counsel may submit proposed voir dire questions to the court at least three business days prior to the final pretrial conference.

    4. Jury Instructions
    Provides boilerplate instructions. Requires counsel to provide only instructions regarding the applicable law and proposed interrogatories. Requires counsel to confer with one another to reach consensus on those instructions and file a single, joint submission of proposed jury instructions and proposed interogatories (on paper and computer diskette) no later than ten days before trial.
    The entire panel is questioned and qualified. The peremptory challenges are then made by round. If a party passes on a peremptory challenge, it loses that challenge. If the plaintiff and defendant consecutively pass on their peremptory challenges, the challenges are concluded and the jurors in the box are seated.

    5. Opening Statement
    Judge Adams will discuss time limits on opening statements with counsel before trial commences. He expects counsel to keep their opening statements brief, for the benefit of counsel as well as the jury. Any exhibits that will be used in opening statement must be shown in advance to opposing counsel.

    6. Decorum
    Does not require counsel to conduct examinations at the lectern. Counsel should request permission from the judge to approach a witness.

    7. Jury Procedures
    Permits jurors to take notes during trial. The judge accepts no communications from jurors except in a signed writing transmitted through the foreperson and given to the courtroom deputy.
    After the parties have presented their cases, Judge Adams will instruct the jury regarding their considerations for deliberation. Judge Adams will provide a copy of the jury instructions, interrogatories and the verdict form to the jury immediately prior to their deliberations.

    8. Stipulations
    For the jury’s use during deliberations, Judge Adams requires that all stipulations must be in writing signed by counsel, and by the defendant in criminal cases. Expects the parties to stipulate to as many undisputed facts as possible so as not to waste the court’s or the juries’ time.

    9. Marking Exhibits
    Requires a list of Exhibits be submitted to courtroom clerk. Requires that all trial exhibits be pre-marked and a copy provided for his use.

    10. Reading of Depositions
    Permits counsel to utilize third parties for reading depositions in court.

    11. Use of Experts
    Qualifications of expert witnesses should be confirmed either by stipulation or by direct testimony. Parties are required to notify the Judge of possible Daubert challenges well in advance of trial.

    12. Use of Videotapes
    Allows counsel to present videotapes in court. However, requires a complete written transcript of videotaped depositions, with any objections specified in writing well before trial.

    13. Daily Transcripts
    Requires the parties to arrange for daily transcripts.

    14. Closing Statements
    Time limitations for closing arguments will be determined by the court.

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