Ennis v. Mortgage Tree Lending, Inc. et al

Filing 136

ORDER signed by Judge Garland E. Burrell, Jr. on 4/19/2010 ORDERING that each party is granted leave to file proposed, clarifying jury instructions on the issues preserved for trial. (Engbretson, K.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The parties have submitted separate proposed and disputed jury instructions. addressed below. The Final Pretrial Order filed on November 25, 2009 ("FPO") preserves the following claims for trial: conversion, breach of fiduciary duty, and disregard of the corporate entity. Each party These filings present a number of issues which are ROBERT ENNIS, ) ) Plaintiff, ) ) v. ) ) MORTGAGE TREE LENDING, INC., et al.) ) Defendants. ) ) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

2:08-cv-01301-GEB-EFG Order Attached to Draft Trial Documents

filed proposed jury instructions for these claims under California law without discussing whether another state's law applies to any of these claims, thereby indicating their agreement that California law should govern. Defendants' proposed jury instructions include instructions for a breach of contract claim. is preserved for trial in the FPO. However, no breach of contract claim Further, the FPO incorporates by

reference the undisputed facts in the parties' Joint Pretrial Statement ("JPS"), which includes the following statement about an agreement: On October 27, 2003, Plaintiff entered into an Agreement, 1

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Waiver and General Release (the "Agreement") with MortgageTree to jointly pursue a claim against MortgageTree's insurer to recover business losses caused by the fire. The Agreement prescribes how any

recovered insurance proceeds would be split between Plaintiff and MortgageTree. Specifically, Paragraph 2(d) provides that "[u]pon conclusion of the matter and payment of any claim for loss of business, [MortgageTree] and [Plaintiff] shall apportion the proceeds based upon the prorata share that such would have been shared if it were income in the normal course of business between [MortgageTree] and the Branch." FPO at 3. . . supersedes the pleadings under

"A pre-trial order .

Fed. R. Civ. P. 16 and controls the subsequent course of the action." Donovan v. Crisostomo, 689 F.2d 869, 875 (9th Cir. 1982) (quotation omitted). "Issues not preserved in the pretrial order are eliminated

from the action." Pierce County Hotel Employees and Restaurant Employees Health Trust v. Elks Lodge, B.P.O.E. No. 1450, 827 F.2d 1324, 1329 (9th Cir. 1987). Defendants have not shown that their

proposed breach of contract instructions concern an issue preserved for trial in the FPO. Therefore, those proposed jury instructions are

not included in the draft trial documents attached to this order. In the JPS, Defendants argue that Plaintiff's complaint does not adequately allege a breach of fiduciary duty or disregard of the corporate entity claim, stating: No fiduciary relationship existed between Plaintiff and Defendants and therefore Plaintiff does not have standing to bring an action for breach of fiduciary duty. No breach of duty of care or loyalty has been alleged in the pleadings to substantiate a cause of action for breach of a fiduciary duty. No factual allegations have been made in the pleadings that Defendants' Draizen and Mize had control over the proceeds or over 2

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corporate decisions that could sustain an alter ego theory of liability against them. However, Plaintiff's complaint contains the conclusory

allegation that Defendants breached a "fiduciary duty", and seeks to have MortgageTree's "corporate entity" disregarded. Defendants have

not shown they are authorized to challenge the sufficiency of these allegations in the JPS. Each party's proposed jury instructions for Plaintiff's breach of fiduciary duty claim are unclear. The first element of each

proposed breach of fiduciary duty jury instruction contains the word "agent," but the term "agent" is not explained. An instruction shall

be filed that explains what factors the jury should consider when deciding whether an agency relationship existed, or alternatively, an explanation as to why this term need not be defined. Further, the

breach of fiduciary duty jury instruction Plaintiff proposed does not appear to address a cognizable claim since the first element of Plaintiff's instruction concerns whether MortgageTree was Plaintiff's agent yet the Plaintiff seeks to hold the individual defendants liable. The parties, therefore, are instructed to meet and confer for

the purpose of determining whether a satisfactory instruction can be developed for Plaintiff's breach of fiduciary duty claim. The jury instructions for Plaintiff's third claim, labeled "disregard of the corporate entity," also appear deficient. "Ordinarily, a corporation is regarded as a legal entity, separate and distinct from its stockholders, officers and directors, with separate and distinct liabilities and obligations. A corporate identity may be

disregarded - the `corporate veil pierced' - where an abuse of the corporate privilege justifies holding the equitable ownership of a 3

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corporation liable for the actions of the corporation.

Under the

alter ego doctrine, then, when the corporate form is used to perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, the courts will ignore the corporate entity and deem the corporation's acts to be those of the persons or organizations actually controlling the corporation, in most instances the equitable owners." Sonora Diamond Corp. v. Superior Court, 83 In

Cal. App. 4th 523, 538 (2000) (quotations and citations omitted).

this case, however, no claim against MortgageTree has been preserved in the FPO, and Plaintiff has not shown what preserved claim for trial warrants the remedy Plaintiff seeks. Each party is granted leave to file proposed, clarifying jury instructions on the issues preserved for trial. Along with draft

instructions, some voir dire questions are attached to this order. Many of the voir dire questions the parties proposed are not included because they do not appear aimed at the objective of "fairly and adequately prob[ing] a juror's qualifications . . . ." v. Toomey, 764 F.2d 678, 683 (9th Cir. 1985). United States

A proposed verdict form

is not attached since it is unclear what jury instructions will be given. Dated: April 19, 2010

GARLAND E. BURRELL, JR. United States District Judge

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P r e l i m i n a r y Instruction No. 1 D u t y of Jury L a d i e s and gentlemen: You are now the jury in t h i s case, and I want to take a few minutes to t e l l you something about your duties as jurors a n d to give you some instructions. instructions. At the end o f the trial, I will give you more detailed Those instructions will control y o u r deliberations. Y o u should not take anything I may say or do d u r i n g the trial as indicating what I think of t h e evidence or what your verdict should be.

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P r e l i m i n a r y Instruction No. 2 B u r d e n of Proof W h e n a party has the burden of proof on any c l a i m or defense by a preponderance of the e v i d e n c e , it means you must be persuaded by the e v i d e n c e that the claim or defense is more p r o b a b l y true than not true. Y o u should base your decision on all of the e v i d e n c e , regardless of which party presented it.

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P r e l i m i n a r y Instruction No. 3 T h e following things are not evidence, and y o u must not consider them as evidence in d e c i d i n g the facts of this case: ( 1 ) statements and arguments of the attorneys; ( 2 ) questions and objections of the attorneys; ( 3 ) testimony that I instruct you to d i s r e g a r d ; and ( 4 ) anything you may see or hear when the c o u r t is not in session even if what you see o r hear is done or said by one of the parties o r by one of the witnesses.

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P r e l i m i n a r y Instruction No. 4 R u l i n g s on Objections T h e r e are rules of evidence that control what c a n be received into evidence. When a lawyer a s k s a question or offers an exhibit into e v i d e n c e and a lawyer on the other side thinks t h a t it is not permitted by the rules of e v i d e n c e , that lawyer may object. t h e exhibit received. If I overrule t h e objection, the question may be answered or If I sustain the Whenever I o b j e c t i o n , the question cannot be answered, and t h e exhibit cannot be received. s u s t a i n an objection to a question, you must i g n o r e the question and must not guess what the a n s w e r might have been. S o m e t i m e s I may order that evidence be s t r i c k e n from the record and that you disregard o r ignore the evidence. That means that when y o u are deciding the case, you must not consider t h e evidence that I told you to disregard.

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P r e l i m i n a r y Instruction No. 5 E v i d e n c e for Limited Purpose S o m e evidence may be admitted for a limited p u r p o s e only. When I instruct you that an item o f evidence has been admitted for a limited p u r p o s e , you must consider it only for that l i m i t e d purpose and for no other.

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P r e l i m i n a r y Instruction No. 6 C r e d i b i l i t y of Witnesses I n deciding the facts in this case, you may h a v e to decide which testimony to believe and w h i c h testimony not to believe. You may believe e v e r y t h i n g a witness says, or part of it, or n o n e of it. I n considering the testimony of any witness, y o u may take into account: ( 1 ) the opportunity and ability of the w i t n e s s to see or hear or know the things testified to; ( 2 ) the witness' memory; ( 3 ) the witness' manner while testifying; ( 4 ) the witness' interest in the outcome of t h e case and any bias or prejudice; ( 5 ) whether other evidence contradicted the w i t n e s s ' testimony; ( 6 ) the reasonableness of the witness' t e s t i m o n y in light of all the evidence; and ( 7 ) any other factors that bear on believability. T h e weight of the evidence as to a fact does n o t necessarily depend on the number of w i t n e s s e s who testify.

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P r e l i m i n a r y Instruction No. 7 C o n d u c t of the Jury I am now going to give you jury admonitions t h a t you must remember. When we take recesses I w i l l reference these admonitions by telling you t o remember the admonitions or something similar t o that. You are required to follow these a d m o n i t i o n s whether or not I remind you to r e m e m b e r them: First, you are not to discuss this case with a n y o n e , including your fellow jurors, members of y o u r family, people involved in the trial, or a n y o n e else, nor are you allowed to permit o t h e r s to discuss the case with you. t h e case please let me know about it immediately; Second, though it is a normal human tendency t o converse with people with whom one is thrown i n contact, please do not, during the time you s e r v e on this jury, converse whether in or out o f the courtroom, with any of the parties or t h e i r attorneys or any witness. By this I mean but do n o t only do not converse about the case, day. If anyone a p p r o a c h e s you and tries to talk to you about

n o t converse at all, even to pass the time of In no other way can all the parties be
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a s s u r e d of the absolute impartiality they are e n t i t l e d to expect from you as jurors; T h e r e may be occasions when you come upon one o f the attorneys or parties in this case outside t h e courtroom. The attorneys and parties are n o w instructed not to communicate with you. Therefore, their failure to acknowledge you s h o u l d not be interpreted as being impolite, but m e r e l y following the Court's orders; Third, do not read any news stories or a r t i c l e s or listen to any radio or television r e p o r t s about the case or about anyone who has a n y t h i n g to do with it; F o u r t h , do not do any research, such as c o n s u l t i n g dictionaries, searching the Internet o r using other reference materials, and do not m a k e any investigation about the case on your own; F i f t h , if you need to communicate with me s i m p l y give a signed note to my courtroom deputy c l e r k , who will give to me; and S i x t h do not make up your mind about what the v e r d i c t should be until after you have gone to t h e jury room to decide the case and you and y o u r fellow jurors have discussed the evidence. Keep an open mind until then.

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P r e l i m i n a r y Instruction No. 8 N o Transcript Available to Jury A t the end of the trial, you will have to m a k e your decision based on what you recall of t h e evidence. t h e trial. You will not have a transcript of I urge you to pay close attention to

t h e testimony as it is given.

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P r e l i m i n a r y Instruction No. 9 T a k i n g Notes I f you wish, you may take notes to help you r e m e m b e r what witnesses said. If you do take n o t e s , please keep them to yourself until you a n d your fellow jurors go to the jury room to d e c i d e the case. Do not let note-taking distract y o u so that you do not hear other answers by w i t n e s s e s . When you leave, your notes should be l e f t on the seat on which you are seated. Whether or not you take notes, you should r e l y on your own memory of what was said. Notes a r e only to assist your memory. You should not b e overly influenced by the notes.

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P r e l i m i n a r y Instruction No. 10 S i d e Bar Conferences and Recesses F r o m time to time during the trial, it may b e c o m e necessary for me to talk with the a t t o r n e y s out of the hearing of the jury, either b y having a conference at the bench when the j u r y is present in the courtroom, or by calling a recess. Please understand that while you are w a i t i n g , we are working. The purpose of these c o n f e r e n c e s is not to keep relevant information f r o m you, but to decide how certain evidence is t o be treated under the rules of evidence and to a v o i d confusion and error. W e will, of course, do what we can to keep t h e number and length of these conferences to a m i n i m u m . I may not always grant an attorney's r e q u e s t for a conference. Do not consider my g r a n t i n g or denying a request for a conference a s any indication of my opinion of the case or o f what your verdict should be.

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P r e l i m i n a r y Instruction No. 11 D u r i n g the course of a trial, I may o c c a s i o n a l l y ask questions of a witness, in o r d e r to bring out facts not then fully covered i n the testimony. Please do not assume that I Remember that you, h o l d any opinion on the matters to which my q u e s t i o n s may have related. a s jurors, are at liberty to disregard all c o m m e n t s of the court in arriving at your own f i n d i n g s as to the facts.

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P r e l i m i n a r y Instruction No. 12 O u t l i n e of Trial T h e next phase of the trial will now begin. F i r s t , each side may make an opening statement. A n opening statement is not evidence. It is s i m p l y an outline to help you understand what t h a t party expects the evidence will show. A p a r t y is not required to make an opening statement. P l a i n t i f f will then present evidence, and c o u n s e l for defendant may cross-examine. p l a i n t i f f may cross-examine. A f t e r the evidence has been presented, i n s t r u c t you on the law that applies to the case. A f t e r that, you will go to the jury room to d e l i b e r a t e on your verdict. the a t t o r n e y s will make closing arguments and I will Then d e f e n d a n t may present evidence, and counsel for

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C l o s i n g Jury Instructions

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I N S T R U C T I O N NO. 1 M e m b e r s of the jury, now that you have heard a l l the evidence and the arguments of the l a w y e r s , it is my duty to instruct you on the l a w which applies to this case. Each of you is i n possession of a copy of these jury i n s t r u c t i o n s , which you may take into the jury r o o m for your use if you find it necessary. I t is your duty to find the facts from all t h e evidence in the case. To those facts you m u s t apply the law as I give it to you. You m u s t follow the law as I give it to you whether y o u agree with it or not. And you must not be i n f l u e n c e d by any personal likes or dislikes, o p i n i o n s , prejudices or sympathy. That means t h a t you must decide the case solely on the e v i d e n c e before you and according to the law. You will recall that you took an oath promising t o do so at the beginning of the case. In following my instructions, you must follow a l l of them and not single out some and ignore o t h e r s ; they are all equally important. And you m u s t not read into these instructions or into a n y t h i n g I may have said or done any suggestion a s to what verdict you should return. Unless o t h e r w i s e stated, the instructions apply to each party.

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I N S T R U C T I O N NO. 2 A l t h o u g h there is more than one defendant in t h i s action, it does not follow that if one is l i a b l e , all are liable. Each defendant is e n t i t l e d to a fair consideration of that d e f e n d a n t ' s own defense, and is not to be p r e j u d i c e d by the fact, if it should become a f a c t , that you find against another. Unless o t h e r w i s e stated, all instructions given apply t o the case against each defendant.

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I N S T R U C T I O N NO. 3

W h e n a party has the burden of proof on any c l a i m or defense by a preponderance of the 4 e v i d e n c e , it means you must be persuaded by the e v i d e n c e that the claim or defense is more 5 p r o b a b l y true than not true.
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Y o u should base your decision on all of the e v i d e n c e , regardless of which party presented 8 it.
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I N S T R U C T I O N NO. 4 T h e evidence from which you are to decide w h a t the facts are consists of: ( 1 ) the sworn testimony of any witness; ( 2 ) the exhibits which have been received i n t o evidence; and ( 3 ) any facts to which the lawyers have a g r e e d or stipulated.

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I N S T R U C T I O N NO. 5

I n reaching your verdict, you may consider o n l y the testimony and exhibits received into 4 e v i d e n c e . Certain things are not evidence, and y o u may not consider them in deciding what the 5 f a c t s are. I will list them for you:
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( 1 ) Arguments and statements by lawyers are n o t evidence. The lawyers are not witnesses. W h a t they have said in their opening s t a t e m e n t s , closing arguments, and at other t i m e s is intended to help you interpret the e v i d e n c e , but it is not evidence. If the f a c t s as you remember them differ from the w a y the lawyers have stated them, your memory o f them controls. ( 2 ) Questions and objections by lawyers are n o t evidence. Attorneys have a duty to their c l i e n t s to object when they believe a q u e s t i o n is improper under the rules of e v i d e n c e . You should not be influenced by the o b j e c t i o n or by the court's ruling on it. ( 3 ) Testimony that has been excluded or s t r i c k e n , or that you have been instructed to d i s r e g a r d , is not evidence and must not be c o n s i d e r e d . In addition some testimony and e x h i b i t s have been received only for a l i m i t e d purpose; where I have given a l i m i t i n g instruction, you must follow it. ( 4 ) Anything you may have seen or heard when t h e court was not in session is not evidence.

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Y o u are to decide the case solely on the e v i d e n c e received at the trial.

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I N S T R U C T I O N NO. 6 E v i d e n c e may be direct or circumstantial. D i r e c t evidence is direct proof of a fact, such a s testimony by a witness about what the witness p e r s o n a l l y saw or heard or did. Circumstantial e v i d e n c e is proof of one or more facts from w h i c h you could find another fact. You should c o n s i d e r both kinds of evidence. The law makes n o distinction between the weight to be given to e i t h e r direct or circumstantial evidence. It is f o r you to decide how much weight to give to any evidence.

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I N S T R U C T I O N NO. 7

S o m e evidence is admitted for a limited p u r p o s e only. When I instruct you that an item 4 o f evidence has been admitted for a limited p u r p o s e , you must consider it only for that 5 l i m i t e d purpose and for no other.
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I N S T R U C T I O N NO. 8

I n deciding the facts in this case, you may h a v e to decide which testimony to believe and You may believe 4 w h i c h testimony not to believe. e v e r y t h i n g a witness says, or part of it, or 5 n o n e of it.
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I n considering the testimony of any witness, y o u may take into account: 8
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t h e opportunity and ability of the w i t n e s s to see or hear or know the things t e s t i f i e d to; t h e witness' memory; t h e witness' manner while testifying;

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4 . t h e witness' interest in the outcome of 16 t h e case and any bias or prejudice;
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5 . w h e t h e r other evidence contradicted the 18 w i t n e s s ' testimony;
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6. t h e reasonableness of the witness' t e s t i m o n y in light of all the evidence; and

7. a n y other factors that bear on believability. 23
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T h e weight of the evidence as to a fact does 25 n o t necessarily depend on the number of w i t n e s s e s who testify. 26
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I N S T R U C T I O N NO. 9

Y o u have heard testimony from persons who, b e c a u s e of education or experience, are 4 p e r m i t t e d to state opinions and the reasons for t h o s e opinions. 5
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O p i n i o n testimony should be judged just like a n y other testimony. You may accept it or reject i t , and give it as much weight as you think it d e s e r v e s , considering the witness' education and e x p e r i e n c e , the reasons given for the opinion, a n d all the other evidence in the case.

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I N S T R U C T I O N NO. 10 C e r t a i n charts and summaries have been shown t o you in order to help explain the facts d i s c l o s e d by the books, records, and other d o c u m e n t s which are in evidence in the case. Such charts or summaries are used for c o n v e n i e n c e . They are not themselves evidence o r proof of any facts. If they do not correctly r e f l e c t the facts or figures shown by the e v i d e n c e in the case, you should disregard these c h a r t s and summaries and determine the facts f r o m the underlying evidence.

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I N S T R U C T I O N NO. 11 C e r t a i n charts and summaries have been r e c e i v e d into evidence to illustrate facts b r o u g h t out in the testimony of some witnesses. The charts and summaries are only as good as the u n d e r l y i n g evidence that supports them. You s h o u l d therefore give them only such weight as y o u think the underlying evidence deserves.

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I N S T R U C T I O N NO. 12 S U B S T A N T I A L FACTOR

A substantial factor in causing harm is a f a c t o r that a reasonable person would consider 5 t o have contributed to the harm. It must be 6 m o r e than a remote or trivial factor. It does 7 n o t have to be the only cause of the harm.
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I N S T R U C T I O N NO. 13 C O N V E R S I O N - ELEMENTS AND DAMAGES P l a i n t i f f alleges Defendants wrongfully e x e r c i s e d control over his personal property, w h i c h he contends comprises a portion of i n s u r a n c e settlement proceeds Zurich Insurance C o m p a n y paid to MortgageTree. To prevail on t h i s claim, Plaintiff has the burden of e s t a b l i s h i n g each of the following elements by a p r e p o n d e r a n c e of the evidence:

F i r s t , Plaintiff was the owner of a specific, i d e n t i f i a b l e portion of the money paid by Zurich 11 I n s u r a n c e Company to MortgageTree;
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S e c o n d , Defendant intentionally interfered w i t h Plaintiff's ownership of the specific, 14 i d e n t i f i a b l e portion of the money paid by Zurich 15 I n s u r a n c e Company to MortgageTree
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T h i r d , Defendant's conduct was a substantial f a c t o r in causing Plaintiff's harm I f you find that Plaintiff is entitled to r e c o v e r damages for conversion, you should award P l a i n t i f f the value of Plaintiff's share of the m o n e y paid by Zurich Insurance Company to M o r t g a g e T r e e at the time of the conversion, plus s e v e n percent (7%) interest from the time of conversion.

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I N S T R U C T I O N NO. 14

S o m e of you have taken notes during the t r i a l . Such notes are only for the personal use 4 o f the person who took them.
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T h e r e is always a tendency to attach undue i m p o r t a n c e to matters which one has written down. Some testimony which is considered u n i m p o r t a n t at the time presented, and thus not w r i t t e n down, takes on greater importance later i n the trial in light of all the evidence p r e s e n t e d . Therefore, you are instructed that y o u r notes are only a tool to aid your own i n d i v i d u a l memory and you should not compare y o u r notes with other jurors in determining the c o n t e n t of any testimony or in evaluating the i m p o r t a n c e of any evidence. Your notes are not e v i d e n c e , may not be accurate, and are by no m e a n s a complete outline of the proceedings or a l i s t of the highlights of the trial. Above all, y o u r memory should be your greatest asset when i t comes time to deliberate and render a d e c i s i o n in this case.

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I N S T R U C T I O N NO. 15

T h e fact that I have instructed you as to the 4 p r o p e r measure of damages should not be c o n s i d e r e d as intimating any view of mine as to 5 w h i c h party is entitled to your verdict in this 6 case.
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I N S T R U C T I O N NO. 16

When you begin your deliberations, you s h o u l d elect one member of the jury as your 4 p r e s i d i n g juror. That person will preside over t h e deliberations and speak for you here in 5 court.
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Y o u will then discuss the case with your f e l l o w jurors to reach agreement if you can do 8 s o . Your verdict must be unanimous.
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E a c h of you must decide the case for y o u r s e l f , but you should do so only after you 11 h a v e considered all of the evidence, discussed 12 i t fully with the other jurors, and listened to 13 t h e views of your fellow jurors.
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D o not be afraid to change your opinion if t h e discussion persuades you that you should. Do 16 n o t come to a decision simply because other j u r o r s think it is right. 17
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I t is important that you attempt to reach a u n a n i m o u s verdict but, of course, only if each o f you can do so after having made your own c o n s c i e n t i o u s decision. Do not change an honest b e l i e f about the weight and effect of the e v i d e n c e simply to reach a verdict.

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I N S T R U C T I O N NO. 17

Y o u r verdict must be based solely on the e v i d e n c e and on the law as I have given it to However, nothing 4 y o u in these instructions. t h a t I have said or done is intended to suggest 5 w h a t your verdict should be -- that is entirely 6 f o r you to decide.
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I N S T R U C T I O N NO. 18

A f t e r you have reached unanimous agreement on a verdict, your foreperson will fill in the form 4 t h a t will be given to you, sign and date it and a d v i s e the United States Marshal's 5 r e p r e s e n t a t i v e outside your door that you are 6 r e a d y to return to the courtroom.
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I N S T R U C T I O N NO. 19 I f it becomes necessary during your d e l i b e r a t i o n s to communicate with me, you may s e n d a note through the United States Marshal's r e p r e s e n t a t i v e , signed by your foreperson or by o n e or more members of the jury. No member of t h e jury should ever attempt to communicate with m e except by a signed writing; and I will c o m m u n i c a t e with any member of the jury on a n y t h i n g concerning the case only in writing, or h e r e in open court. If you send out a question, I will consult with the parties before answering i t , which may take some time. You may continue y o u r deliberations while waiting for the answer t o any question. Remember that you are not to t e l l anyone--including me--how the jury stands, n u m e r i c a l l y or otherwise, until after you have r e a c h e d a unanimous verdict or have been d i s c h a r g e d . Do not disclose any vote count in a n y note to the court.

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V o i r Dire 1 . C o u n s e l , the Jury Administrator has already r a n d o m l y selected potential jurors and placed t h e i r names on the sheet that has been provided t o each party in the numerical sequence in which t h e y were randomly selected and each juror has b e e n placed in his or her randomly-selected seat. 2 . I will ask a series of questions to the j u r o r s as a group. If you have a response, p l e a s e raise your hand or the number you've been g i v e n , which reflects your seat number. Generally, you will be given an opportunity to r e s p o n d in accordance with the numerical order i n which you are seated, with the juror in the l o w e s t numbered seat first. If no juror raises h i s or her hand, I will simply state "no r e s p o n s e " for the record and then ask the next q u e s t i o n . If you know it is your turn to r e s p o n d to a question, you may respond before I c a l l your name by first stating your last name, t h e n your seat number, and lastly your response. That should expedite the process. 3 . T h i s case is expected to take _______________ d a y s for the presentation of evidence, after w h i c h they will give you closing arguments. After closing arguments, I will give you closing j u r y instructions and you will begin your d e l i b e r a t i o n s . Because I handle criminal m a t t e r s on Fridays and other civil matters on M o n d a y s , we will only be in trial three days a w e e k : Tuesday, Wednesday, and Thursday. On the d a y s we are in trial, we will begin at 9:00 a.m.
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a n d usually end around 4:30 p.m. As soon as you c o m m e n c e jury deliberations, you will be e x p e c t e d to deliberate as necessary during these h o u r s , including Mondays and Fridays, but not on t h e weekends, until you complete your d e l i b e r a t i o n s . Will any of you find it d i f f i c u l t or impossible to participate in this t r i a l during these times? 4 . I s there any member of the panel have problem t h a t would make it difficult serve as a jury on t h i s case? 5 . I will briefly describe the allegations in t h i s case for the purpose of seeing if this is t h e type of case on which you could serve a fair a n d impartial juror. R e a d essence of parties' Joint Statement 7. I s there anything about the allegations i n this lawsuit that causes any potential juror t o prefer not being a juror on this type of case? 6 . W o u l d the plaintiffs' counsel introduce h i m s e l f , his clients, and indicate any witness t h a t plaintiffs may choose to call. 7 . D e f e n d a n t s ' counsel now has the o p p o r t u n i t y to do the same thing. D o you know any of the named individuals o r any of the potential witnesses; or ever had a n y business or other dealings with any person j u s t named? 8 . H a v e you ever served as a juror in a c r i m i n a l or a civil case, either in federal or a n y other court?

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i . Please state the nature of the case a n d , without stating the result reached, state 2 w h e t h e r the jury reached a verdict.
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9. M y deputy clerk will give juror number 1 a sheet on which there are questions that I want e a c h of you to answer. Please pass the sheet to t h e juror next to you after you answer the questions. (a) Name (b) Age (c) E d u c a t i o n a l background (d) Your marital status (e) P r e s e n t and former occupations f o r you and any person residing w i t h you (f) I n t e r e s t s and hobbies 1 0 . Each side has dire-20 minutes for followu p voir dire.