Motorola Mobility, Inc. v. Apple, Inc.

Filing 185

RESPONSE in Opposition re 178 MOTION to Strike Motorola's Supplemental Infringement Contentions filed by Motorola Mobility, Inc.. (Attachments: # 1 Affidavit, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14)(Giuliano, Douglas)

EXHIBIT 2

Case: 3:10-cv-00662-bbc Document #: 27

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IN THE UNITED STATES DISTRICT COURT
FOR THE W ESTERN DISTRICT OF W ISCONSIN

APPLE INC. and NEXT SOFTW ARE,
INC. (f/k/a NeXT COM PUTER, INC.),

PRELIM INARY PRETRIAL
CONFERENCE ORDER

Plaintiffs,
v.

10-cv-662-bbc

M OTOROLA, INC. and
M OTOROLA M OBILITY, INC.,
Defendants.

This court held a preliminary pretrial conference on December 17, 2010. All parties were
represented by counsel. The court set the schedule for this case and advised the parties that their
conduct throughout this case is governed by this pretrial conference order and the attachments
to it. The parties should not expect to receive extensions of the deadlines set in this order. It
is each party’s responsibility to complete all necessary work within the time allotted.
The parties and their attorneys must at all times treat everyone involved in this lawsuit
with courtesy and consideration. The parties must attend diligently to their obligations in this
lawsuit and must reasonably accommodate each other in all matters so as to secure the just,
speedy and inexpensive resolution of each proceeding in this matter as required by Fed. R. Civ.
Pro. 1. Failure to do so shall have consequences.

1.

Am endm ents to the Pleadings: January 28, 2011
After this date, a party may not amend its pleadings without first receiving leave of court.

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2.

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(A) Infringem ent Contentions: M arch 4, 2011
By this date, a plaintiff must identify each claim in each patent being asserted against

each accused device.
(B) Defendant’s Contentions of Invalidity and Unenforceability: April 13, 2011
By this date, a defendant must disclose all of its contentions of invalidity and
unenforceablity.

3.

Claim s Construction
THE COURT WILL CONSTRUE NO MORE THAN 16 TERMS FOR ALL PARTIES IN THIS
LAWSUIT REGARDLESS OF THE NUMBER OF PATENTS OR CLAIMS AT ISSUE1

Exchange of Terms and Proposed Constructions: M ay 13, 2011
Not later than this date, all parties must exchange each party’s list of all terms for which
that party intends to request construction by the court, along with its proposed constructions.
2These documents should not be filed with the court. If a party fails to disclose a term or fails
to propose a construction for a disclosed term, then it may not include that term in its motion
requesting construction.
M otions Requesting Construction: June 17, 2011
Not later than this date, any party must file and serve each of its proposed constructions,
including any proposed constructions of terms from its opponent’s initial list, along with all
support for its proposals. It is the party’s burden to persuade the court that construction of each
specified term is necessary to resolve a disputed issue concerning infringement or invalidity. If
the moving party wants a claims construction hearing, then it must request one, specify which
terms require a hearing and provide grounds why a hearing actually is necessary for each specified
term.

1

The court realizes this is less than one term per patent. Construction of more than 16 terms
shall be by leave of court.
2

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Responses: July 15, 2011
Not later than the date set forth above, a party must file and serve any objections to an
opponent’s motion requesting claims construction, including any objection to the opponent’s
suggested procedures for construing claims. If a party did not propose a construction for a term
in its opening brief, then its opposition to another party’s proposed construction of that term is
limited to arguing that no construction is necessary.

A party shall not propose a new

construction of any term in its response.

Claim s Construction Hearing (if needed): July 22, 2011 at 9:00 a.m .
The court at its discretion will decide whether to grant a request for a claims construction
hearing. Each side would have 90 minutes to present all evidence and argument.

4.

Disclosure of Liability Experts: Proponent: Septem ber 2, 2011
Respondent: October 14, 2011
All disclosures mandated by this paragraph must comply with the requirements of Rule

26(a)(2). There shall be no third round of rebuttal expert reports. Supplementation pursuant
to Rule 26(e) is limited to matters raised in an expert’s first report, must be in writing and must
be served not later than five calendar days before the expert’s deposition, or before the general
discovery cutoff if no one deposes the expert. Any employee of a party who will be offering
expert opinions during any phase of this case must comply with all of these disclosure
requirements.
Failure to comply with these deadlines and procedures could result in the court striking
the testimony of a party’s experts pursuant to Rule 37. The parties may modify deadlines and
procedures relating to experts by agreement.

3

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5.

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Deadline for Filing Dispositive M otions: October 21, 2011
Dispositive motions may be filed and served by any party on any date up to the deadline

set above. All dispositive motions must be accompanied by supporting briefs. All responses to
any dispositive motion must be filed and served within 21 calendar days of service of the motion,
which the court presumes is the date the motion is filed with the court. Any reply by the movant
must be filed and served within 10 calendar days of service of the response.
If any party files a motion for summary judgment, then all parties must follow this court’s
procedure governing such motions, a copy of which is attached to this order. The court will not
consider any document that does not comply with its summary judgment procedure. A party
may not file more than one motion for summary judgment in this case without leave of court.
Parties are to undertake discovery in a manner that allows them to make or respond to
dispositive motions within the scheduled deadlines. The fact that the general discovery deadline
cutoff, set forth below, occurs after the deadlines for filing and briefing dispositive motions is not
a ground for requesting an extension of the motion and briefing deadlines.

6.

Disclosure of Dam ages Experts: Proponent: January 13, 2012
Respondent: February 13, 2012
The requirements of paragraph 4 apply to these disclosures.

7.

Settlem ent Letters: M arch 16, 2012
Counsel for each party must submit to the clerk of court a settlement letter not later than

the date set forth above at [e-mail]. The letter should contain the
terms and conditions upon which that party would agree to settle this case. These letters should
be marked "Under Seal" and should not be sent to opposing counsel. These letters will not

4

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become part of the record in this case. Upon receipt of the letters, the clerk of court will initiate
settlement discussions with counsel.
This is the only required settlement activity in this lawsuit.

The court has other

settlement resources that it will make available to the parties upon their joint request to the clerk
of court.

8.

Discovery Cutoff: M arch 16, 2012
All discovery in this case must be completed not later than the date set forth above,

absent written agreement of all parties to some other date. Absent written agreement of the
parties or a court order to the contrary, all discovery must conform with the requirements of
Rules 26 through 37 and Rule 45.
Rule 26(a)(1) governs initial disclosures unless the parties agree in writing to the
contrary.
The following discovery materials shall not be filed with the court unless they concern a
motion or other matter under consideration by the court: interrogatories; responses to
interrogatories; requests for documents; responses to requests for documents; requests for
admission; and responses to requests for admission.
A party need not file a deposition transcript with the court until that party is using the
deposition in support of some other submission, at which time the entire deposition must be
filed. Depositions that are not filed with the court by the deadline for filing pretrial submissions
shall not be used by any party for any purpose at trial.

All deposition transcripts must be in

compressed format. The court will not accept duplicate transcripts. The parties must determine
who will file each transcript.
A party may not file a motion regarding discovery until that party has made a good faith
attempt to resolve the dispute. All efforts to resolve the dispute must be set forth in any
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subsequent discovery motion filed with this court. By this order, the court requires all parties to
a discovery dispute to attempt to resolve it quickly and in good faith. Failure to do so could
result in cost shifting and sanctions under Rule 37.
Because the parties will not receive extensions of other deadlines in this case, they must
file discovery motions promptly if self-help fails. Parties who fail to do so may not seek to change
the schedule on the ground that discovery proceeded too slowly to meet the deadlines set in this
order.
All discovery-related motions must be accompanied by a supporting brief, affidavit, or
other document showing a prima facie entitlement to the relief requested. Any response to a
discovery motion must be served and filed within seven calendar days of service of the motion,
which the court presumes is the date the motion is filed with this court. Replies may not be filed
unless requested by the court.

9.

Rule 26(a)(3) Disclosures and all m otions in lim ine: M arch 16, 2012
Objections: April 2, 2012

Note well: the parties also must submit courtesy copies of all these submissions to chambers.

10.

Final Pretrial Conference: April 12, 2012 at 4:00 p.m .
This is a live hearing in the courtroom. Lead counsel for each party must appear in

person. Not later than seven calendar days before the final pretrial conference each party shall
submit to the court its witness list and exhibit list, and shall file and serve all proposed voir dire
questions, proposed jury instructions, and proposed verdict forms. The format for submitting
proposed voir dire questions, jury instructions and verdict forms is set forth in the Order
Governing Final Pretrial Conference, which is attached. By this deadline the parties also must
submit to chambers courtesy copies of all depositions that might be used at trial.
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Any deposition that has not been filed with the clerk of court by the date of the final
pretrial conference shall not be used by any party for any purpose at trial.

11.

Trial: April 30, 2012 at 9:00 a.m .
Trial shall be to a jury of seven and shall be bifurcated. The parties estimate that this case

will take two to four weeks to try. Absent further order of this court, the issues to be tried shall
be limited to those identified by the parties in their pretrial conference report to the court.
This case will be tried in an electronically equipped courtroom and the parties shall
present their evidence using this equipment. Counsel shall ensure the compatibility of any of
their personal equipment with the court’s system prior to the final pretrial conference or shall
forfeit their right to use any personal equipment that is not compatible with the court’s system.

12. Reporting Obligation of Corporate Parties.
All parties that are required to file a disclosure of corporate affiliations and financial
interest form have a continuing obligation throughout this case promptly to amend that form
to reflect any changes in the answers.

Entered this 20 th day of December, 2010.
BY THE COURT:
/s/
STEPHEN L. CROCKER
M agistrate Judge

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INDEX
to
PRELIM INARY PRETRIAL CONFERENCE PACKET
IN CASES ASSIGNED TO JUDGE CRABB

M andatory Electronic Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 1
Order in Non-Jury Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Page 30
Order Regarding Timely Presentation of W itnesses and Evidence . . . . . . . . . . . . . Page 34
Procedures Governing Final Pretrial Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 10
Settlement Before Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 29
Standard Jury Instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 14
Standard Voir Dire Questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 12
Summary Judgment Memorandum to Pro Se Litigants. . . . . . . . . . . . . . . . . . . . . . .Page 3
Summary Judgment Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 5
Summary Judgment Tips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2
Trial Exhibit Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 11
W itness Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 23

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Page 1

MANDATORY ELECTRONIC FILING OF ALL COURT DOCUMENTS

Electronic Case Filing is the standard way of doing business with the District Court in the
Western District of Wisconsin. Effective January 22, 2008, electronic filing is mandatory in
all civil and criminal case pending the newly filed.
Information on electronic filing and the court’s administrative procedures are available on our
website: www.wiwd.uscourts.gov under CM/ECF News. Resources include Administrative
Procedures, Frequently Asked Questions, User Manual, and contact information.
Each lawyer must complete and sign a Lawyer Registration Form, which can be accessed at
http://attorneyreg.wiwd.uscourts.gov The registration form requires the Filing User’s name,
address, telephone number, and Internet e-mail address. Upon completion of the electronic
registration form, the lawyer prints a copy, signs the form and mails it to the clerk’s office.
The clerk’s office will retain this signed registration on file. To ensure that the clerk’s office
has correctly entered a registering lawyer’s e-mail address in the System, the clerk’s office will
send the lawyer an e-mail message which will include a login and password.

1

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Page 2
HELPFUL TIPS FOR FILING
A SUMMARY JUDGMENT MOTION
IN CASES ASSIGNED TO JUDGE BARBARA B. CRABB

Please read the attached directions carefully – doing so will save your time and the court’s.
REMEMBER:
1. All facts necessary to sustain a party’s position on a motion for summary judgment
must be explicitly proposed as findings of fact. This includes facts establishing jurisdiction.
(Think of your proposed findings of fact as telling a story to someone who knows nothing of
the controversy.)
2. The court will not search the record for factual evidence. Even if there is evidence
in the record to support your position on summary judgment, if you do not propose a finding
of fact with the proper citation, the court will not consider that evidence when deciding the
motion.
3. A fact properly proposed by one side will be accepted by the court as undisputed
unless the other side properly responds to the proposed fact and establishes that it is in
dispute.
4. Your brief is the place to make your legal argument, not to restate the facts. When
you finish it, check it over with a fine tooth comb to be sure you haven’t relied upon or
assumed any facts in making your legal argument that you failed to include in the separate
document setting out your proposed findings of fact.
5. A chart listing the documents to be filed by the deadlines set by the court for
briefing motions for summary judgment or cross-motions for summary judgment is printed
on the last page of the procedures.

R evised M arch 2006

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Page 3

MEMORANDUM TO PRO SE LITIGANTS
REGARDING SUMMARY JUDGMENT MOTIONS
IN CASES ASSIGNED TO JUDGE CRABB
This court expects all litigants, including persons representing themselves, to follow
this court’s Procedures to be Followed on Motions for Summary Judgment. If a party does
not follow the procedures, there will be no second chance to do so.

Therefore, PAY

ATTENTION to the following list of mistakes pro se plaintiffs tend to make when they
oppose a defendant’s motion for summary judgment:
•

Problem:
correctly.

The plaintiff does not answer the defendant’s proposed facts

Solution: To answer correctly, a plaintiff must file a document titled “Response
to Defendant’s Proposed Findings of Fact.” In this document, the plaintiff
must answer each numbered fact that the defendant proposes, using separate
paragraphs that have the same numbers as defendant’s paragraphs. See
Procedure II.D. If plaintiff does not object to a fact that the defendant
proposes, he should answer, “No dispute.”
•

Problem: The plaintiff submits his own set of proposed facts without answering
the defendant’s facts.
Solution: Procedure II.B. allows a plaintiff to file his own set of proposed facts
in response to a defendant’s motion ONLY if he thinks he needs additional
facts to prove his claim.

•

Problem: The plaintiff does not tell the court and the defendant where there
is evidence in the record to support his version of a fact.
Solution: Plaintiff must pay attention to Procedure II.D.2., which tells him
how to dispute a fact proposed by the defendant. Also, he should pay attention
to Procedure I.B.2., which explains how a new proposed fact should be written.

•

Problem: The plaintiff supports a fact with an exhibit that the court cannot
accept as evidence because it is not authenticated.

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Page 4
Solution: Procedure I.C. explains what may be submitted as evidence. A copy
of a document will not be accepted as evidence unless it is authenticated. That
means that the plaintiff or someone else who has personal knowledge what the
document is must declare under penalty of perjury in a separate affidavit that
the document is a true and correct copy of what it appears to be. For example,
if plaintiff wants to support a proposed fact with evidence that he received a
conduct report, he must submit a copy of the conduct report, together with an
affidavit in which he declares under penalty of perjury that the copy is a true
and unaltered copy of the conduct report he received on such and such a date.

NOTE WELL: If a party fails to respond to a fact proposed by the opposing party, the
court will accept the opposing party’s proposed fact as undisputed. If a party’s response to
any proposed fact does not comply with the court’s procedures or cites evidence that is not
admissible, the court will take the opposing party’s factual statement as true and undisputed.
You’ll find additional tips for making sure that your submissions comply with the court’s
procedures on page 9 of this packet.
R evised M arch 2006

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Page 5
IN THE UNITED STATES DISTRICT COURT
FOR THE W ESTERN DISTRICT OF W ISCONSIN
PROCEDURE TO BE FOLLOW ED ON M OTIONS FOR SUM M ARY JUDGM ENT
I. M OTION FOR SUM MARY JUDGM ENT

A.

Contents:
1.

2.

In a separate document, a statement of proposed findings of fact or a
stipulation of fact between or among the parties to the action, or both; and

3.

Evidentiary materials (see I.C.); and

4.

B.

A motion, together with such materials permitted by Rule 56(e) as the moving
party may wish to serve and file; and

A supporting brief.

Rules Regarding Proposed Findings of Fact:
1.

Each fact must be proposed in a separate, numbered paragraph, limited as
nearly as possible to a single factual proposition.

2.

Each factual proposition must be followed by a reference to evidence
supporting the proposed fact. For example,
“1. Plaintiff Smith bought six Holstein calves on July 11, 2006.
Harold Smith Affidavit, Jan. 6, 2007, p.1, ¶ 3.”

3.

The statement of proposed findings of fact shall include ALL factual
propositions the moving party considers necessary for judgment in the party’s
favor. For example, the proposed findings shall include factual statements
relating to jurisdiction, the identity of the parties, the dispute, and the context
of the dispute.

4.

The court will not consider facts contained only in a brief.

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Page 6
C.

Evidence
1.

As noted in I.B. above, each proposed finding must be supported by admissible
evidence. The court will not search the record for evidence. To support a
proposed fact, you may use:
a.

Depositions. Give the name of the witness, the date of the deposition,
and page of the transcript of cited deposition testimony;

b.

Answers to Interrogatories. State the number of the interrogatory and
the party answering it;

c.

Admissions made pursuant to Fed. R. Civ. P. 36. (state the number of
the requested admission and the identity of the parties to whom it was
directed); or

d.

Other Admissions. The identity of the document, the number of the
page, and paragraph of the document in which that admission is made.

e.

Affidavits. The page and paragraph number, the name of the affiant,
and the date of the affidavit. (Affidavits must be made by persons who
have first hand knowledge and must show that the person making the
affidavit is in a position to testify about those facts.)

f.

Documentary evidence that is shown to be true and correct, either by
an affidavit or by stipulation of the parties. (State exhibit number, page
and paragraph.)

II. RESPONSE TO M OTION FOR SUM M ARY JUDGM ENT
A.

Contents:
1.
2.

A brief in opposition to the motion for summary judgment; and

3.
B.

A response to the moving party’s proposed finding of fact; and

Evidentiary materials (See I.C.)

In addition to responding to the moving party’s proposed facts, a responding party may
propose its own findings of fact following the procedure in section I.B. and C. above.
1.

A responding party should file additional proposed findings of fact if it needs them
to defeat the motion for summary judgment.

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Page 7

2.

The purpose of additional proposed findings of fact is to SUPPLEMENT the
moving party’s proposed findings of fact, not to dispute any facts proposed by the
moving party. They do not take the place of responses. Even if the responding
party files additional proposed findings of fact, it M UST file a separate response
to the moving party’s proposed findings of fact.

C.

Unless the responding party puts into dispute a fact proposed by the moving party, the
court will conclude that the fact is undisputed.

D.

Rules Regarding Responses to the M oving Party’s Proposed Factual Statements:
1.

Answer each numbered fact proposed by the moving party in separate paragraphs,
using the same number.

2.

If you dispute a proposed fact, state your version of the fact and refer to evidence
that supports that version. For example,

M oving party proposes as a fact:
“1. Plaintiff Smith purchased six Holstein calves from Dell’s Dairy Farm on July
11, 2006. Harold Smith Affidavit, Jan. 6, 2007, p.1, ¶ 3.”
Responding party responds:
“1. Dispute. The purchase Smith made from Dell’s Dairy Farm on July 11, 2006
was for one Black Angus bull John Dell Affidavit, Feb. 1, 2007, Exh. A.”
3.

The court prefers but does not require that the responding party repeat verbatim
the moving party’s proposed fact and then respond to it. Using this format for the
example above would lead to this response by the responding party:
“1. Plaintiff Smith purchased six Holstein calves from Dell’s Dairy Farm on July 11,
2006. Harold Smith Affidavit, Jan. 6, 2007, p.1, ¶ 3.
“Dispute. The purchase Smith made from Dell’s Dairy Farm on July 11, 2006 was
for one Black Angus bull.” John Dell Affidavit, Feb. 1, 2007, Exh. A.”

4.

W hen a responding party disputes a proposed finding of fact, the response must
be limited to those facts necessary to raise a dispute. The court will disregard any
new facts that are not directly responsive to the proposed fact. If a responding
party believes that more facts are necessary to tell its story, it should include them
in its own proposed facts, as discussed in II.B.

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Page 8
E.

Evidence
1.

Each fact proposed in disputing a moving party’s proposed factual statement and
all additional facts proposed by the responding party must be supported by
admissible evidence. The court will not search the record for evidence. To support
a proposed fact, you may use evidence as described in Procedure I.C.1. a. through
f.

2.

The court will not consider any factual propositions made in response to the
moving party’s proposed facts that are not supported properly and sufficiently by
admissible evidence.

III. REPLY BY MOVING PARTY
A. Contents:
1.

An answer to each numbered factual statement made by the responding party in
response to the moving party’s proposed findings of fact, together with references
to evidentiary materials; and

2.

An answer to each additional numbered factual statement proposed by the
responding party under Procedure II.B., if any, together with references to
evidentiary materials; and

3.

A reply brief; and

4.

Evidentiary materials (see I.C.)

B.

If the responding party has filed additional proposed findings of fact, the moving party
should file its response to those proposed facts at the same time as its reply, following the
procedure in section II.

C.

W hen the moving party answers the responding party’s responses to the moving party’s
original proposed findings of fact, and answers the responding party’s additional proposed
findings of fact, the court prefers but does not require that the moving party repeat
verbatim the entire sequence associated with each proposed finding of fact so that reply
is a self-contained history of all proposed facts, responses and replies by all parties.
IV. SUR-REPLY BY RESPONDING PARTY

A responding party shall not file a sur-reply without first obtaining permission from the
court. The court only permits sur-replies in rare, unusual situations.

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Page 9
M OTION FOR SUM M ARY JUDGM ENT
Deadline 1
(All deadlines appear in the
Preliminary Pretrial Conference
Order Sent to the Parties Earlier)

Deadline 2

Deadline 3

moving party’s motion
moving party’s brief

non-moving party’s response brief

moving party’s reply brief

moving party’s proposed findings of
fact

non-moving party’s response to
moving party’s proposed findings of
fact

moving party’s reply to non-moving
party’s response to moving party’s
proposed findings of fact

non-moving party’s additional
proposed findings of fact

moving party’s response to non-moving
party’s additional proposed findings of
fact, if any.

CROSS M OTIONS FOR SUM M ARY JUDGM ENT
Deadline 1
(All deadlines appear in the
Preliminary Pretrial Conference
Order Sent to the Parties Earlier)

Deadline 2

Deadline 3

defendant’s motion
defendant’s brief

plaintiff’s response brief

defendant’s reply brief

defendant’s proposed findings of
fact

plaintiff’s response to defendant’s
proposed findings of fact

defendant’s reply to plaintiff’s response to
defendant’s proposed findings of fact

plaintiff’s brief

defendant’s response brief

plaintiff’s reply brief

plaintiff’s proposed findings of fact

defendant’s response to plaintiff’s
proposed findings of fact

plaintiff’s reply to defendant’s response to
plaintiff’s proposed findings of fact

plaintiff’s motion

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Page 10

PROCEDURES GOVERNING FINAL PRETRIAL CONFERENCE
IN CASES ASSIGNED TO JUDGE CRABB
1 The preliminary pretrial conference order tells the parties what documents must be submitted
for the final pretrial conference and what the deadlines are for submitting them.
2. The court’s standard voir dire questions and standard jury instructions are attached to this order
and will be asked in every case. The parties should not duplicate the standard questions or instructions.
3. A party must submit to the court an electronic copy of any proposed additional voir dire questions,
proposed form of special verdict and proposed jury instructions in full electronic text (that is, not just by
citation) by e-mailing them to chambers in W ordPerfect or M icrosoft W ord format to
[e-mail]. The subject line of the e-m ail sent to cham bers m ust include the case
num ber and the phrase Final Pretrial Subm issions.
4. Proposed jury instructions shall be submitted in the following form:
A.

Pattern instructions are to be requested by reference to the source (e.g.,
court’s standard instruction or Devitt & Blackmar, § 18.01); and

B.

Special instructions or pattern instructions, whether modified or not,
must be presented double-spaced with one instruction per page, and each
instruction shall show the identity of the submitting party, the number of
the proposed instruction, and the citation of the pattern instruction,
decision, statute, regulation or other authority supporting the proposition
stated, with any additions underscored and any deletions set forth in
parentheses. The e-m ail version of a party's proposed instructions
m ust follow this form at.

5. The court retains the discretion to refuse to entertain voir dire questions, special verdict forms, or
jury instructions not submitted in accordance with this order or the preliminary pretrial conference order unless
the subject of the request is one arising during trial that could not reasonably have been anticipated prior to
trial.
6. Each party shall be represented at the final pretrial conference by the lawyer who will actually try the
case unless the party is proceeding pro se, in which case the pro se party must appear. A party represented by
counsel shall also be present in person unless
A.
B.

Counsel has been delegated the full authority to settle the case; or
Attendance in person is impossible and arrangements are made for communication by
telephone during the entire duration of the conference for the purpose of acting upon
settlement proposals.

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PROCEDURES FOR TRIAL EXHIBITS
IN CASES ASSIGNED TO JUDGE CRABB
Before trial, the parties are to label all exhibits that may be offered at trial. Before the start of trial,
the parties are to provide the deputy clerk with a list of all exhibits. Exhibits for use at trial are not subject
to the electronic filing procedures, but are to be filed conventionally. Counsel are to retain the original
exhibits following trial.
1. Each party is to label all exhibits.
2. If more than one defendant will be offering exhibits, that defendant should add an initial
identifying the particular defendant to the label.
3. Each party is to submit a list of their exhibits. The party should state to whom the exhibits
belong, the number of each exhibit and a brief description.
4. Each party is to provide the court with the original exhibit list and a copy of each exhibit that
may be offered for the judge’s use.
5. As a general rule, the plaintiff should use exhibit numbers 1-500 and the defendant should use
exhibit numbers 501 and up.
6. Each party is to maintain custody of his or her own exhibits throughout the trial.
7. At the end of trial, each party is to retain all exhibits that become a part of the record. It is each
party’s responsibility to maintain his or her exhibits and to make arrangements with the clerk’s office for
inclusion of the exhibits in the appeal record, if there is an appeal.
8. Each party should be aware that once reference is made to an exhibit at trial, the exhibit becomes
part of the record, even though the exhibit might not be formally offered or might not be received.
Any questions concerning these instructions may be directed to the clerk’s office at [phone].
Entered this 19th day of May, 2006.
BY THE COURT:
BARBARA B. CRABB
District Judge

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COURT’S STANDARD VOIR DIRE QUESTIONS
IN CASES ASSIGNED TO JUDGE CRABB
1.

Statement of the case.
defendant(s)' defenses.)

(A very brief, concise description of the plaintiff(s)' claims and the

Has any one of you ever heard of this case before today? How? When? When you
heard about it, did you form any opinion concerning the case? Do you believe that
your ability to serve impartially as a juror in this case has been affected by what you
have heard about it?
2.

The trial of this case will begin _____________ and will last _______________ days. Is there any one
of you who would be unable to serve as a juror during this time?

3.

Ask counsel to stand and tell the jury where they practice and with whom. Ask panel whether
anyone knows counsel or their associates or partners.

4.

Ask counsel to introduce the parties. Ask panel whether anyone knows any of the parties. (If any
party is a corporation, have counsel identify the nature of the corporation's business, its major
subsidiaries, or its parent corporation, and where it conducts business. Ask whether anyone on the
panel is stockholder of corporation or has had business dealings with it.)

5.

Question to each prospective juror.
Please stand up and tell us about yourself.
Name, age, and city or town of residence.
Marital status and number of children, if any.
Current occupation (former if retired).
Current (or former) occupation of your spouse or domestic partner.
Any military service, including branch, rank and approximate date of discharge.
How far you went in school and major areas of study, if any.
Memberships in any groups or organizations.
Hobbies and leisure-time activities.
Favorite types of reading material.
Favorite types of television shows.

6.

Question to panel regarding prior experience with court proceedings:

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a.
b.

Have any of you ever been a witness in a lawsuit?

c.

How many of you have served previously on a jury?

d.

Of those of you who have sat on a jury, were you ever the foreperson on a jury? Describe
your experience.

e.
7.

Have any of you ever been a party to a lawsuit? Describe circumstances.

Do any of you know any of the other persons on the jury panel?

Question to panel in personal injury cases:
In this case the plaintiff is alleging that he suffered injuries [describe in summary fashion, for
example, he was burned, or he suffered a broken leg and ankle] in an [automobile, horseback riding,
industrial, farm, etc.] accident.
a.

Has any one of you ever suffered similar injuries? Describe. Do you have any residual
effects of your injury?

b.

Do you have close friends or relatives who have suffered similar injuries?

c.

Were you ever in an accident involving [an automobile, farm machinery, industrial machine,
etc.)?

d.

Do you have any close friends or relatives who have been in an accident of this kind?

8.

Question to panel. At the end of the case I will give you instructions that will govern your
deliberations. You are required to follow those instructions, even if you do not agree with them.
Is there any one of you who would be unable or unwilling to follow the instructions?

9.

Question to panel. Do any of you have opinions, whether positive or negative, about people who
go to court to obtain relief for wrongs they believe they have suffered?

10.

Question to panel. Do you know of any reason whatsoever why you could not sit as a trial juror
with absolute impartiality to all the parties in this case?

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STANDARD JURY INSTRUCTIONS – CIVIL*

*These instructions are used in cases before the Honorable Barbara B. Crabb, District Judge

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I. INTRODUCTORY INSTRUCTION
Members of the jury, we are about to begin the trial of the case. Before it begins, I will give
you some instructions to help you understand how the trial will proceed, how you should evaluate
the evidence, and how you should conduct yourselves during the trial.
The party who begins the lawsuit is called the plaintiff. In this action, the plaintiff is
____________________________.
The parties against whom the suit is brought are called the
defendants. In this action, the defendants are _____________________________________.
[Describe claims and basic legal elements of claims and defenses]
The case will proceed as follows:
First, plaintiff's counsel will make an opening statement outlining plaintiff's case. Immediately
after plaintiff's statement, defendants' counsel will also make an opening statement outlining
defendants' case. What is said in opening statements is not evidence; it is simply a guide to help you
understand what each party expects the evidence to show.
Second, after the opening statements, the plaintiff will introduce evidence in support of his
claim. At the conclusion of the plaintiff's case, the defendants may introduce evidence. The
defendants are not required to introduce any evidence or to call any witnesses. If the defendants
introduce evidence, the plaintiff may then introduce rebuttal evidence.
Third, after the evidence is presented, the parties will make closing arguments explaining what
they believe the evidence has shown and what inferences you should draw from the evidence. What
is said in closing argument is not evidence. The plaintiff has the right to give the first closing
argument and to make a short rebuttal argument after the defendants’ closing argument.
Fourth, I will instruct you on the law that you are to apply in reaching your verdict.
Fifth, you will retire to the jury room and begin your deliberations.
You will hear the term "burden of proof" used during this trial. In simple terms, the phrase
"burden of proof" means that the party who makes a claim has the obligation of proving that claim.
At the end of the trial, I will instruct you on the proper burden of proof to be applied in this case.
The trial day will run from 9:00 a.m. until 5:30 p.m. You will have at least an hour for lunch
and two additional short breaks, one in the morning and one in the afternoon.
During recesses you should keep in mind the following instructions:
First, do not discuss the case either among yourselves or with anyone else during the course
of the trial. The parties to this lawsuit have a right to expect from you that you will keep an open
mind throughout the trial. You should not reach a conclusion until you have heard all of the
evidence and you have heard the lawyers' closing arguments and my instructions to you on the law,
and have retired to deliberate with the other members of the jury.
Second, do not permit any third person to discuss the case in your presence. If anyone tries
to talk to you despite your telling him not to, report that fact to the court as soon as you are able.
Do not discuss the event with your fellow jurors or discuss with them any other fact that you believe
you should bring to the attention of the court.
Third, although it is a normal human tendency to converse with people with whom one is
thrown in contact, please do not talk to any of the parties or their attorneys or witnesses. By this I
mean not only do not talk about the case, but do not talk at all, even to pass the time of day. In no

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other way can all parties be assured of the absolute impartiality they are entitled to expect from you
are jurors.
Fourth, do not read about the case in the newspapers, or listen to radio or television broadcasts
about the trial. If a newspaper headline catches your eye, do not examine the article further. Media
accounts may be inaccurate and may contain matters that are not proper for your consideration. You
must base your verdict solely on the evidence produced in court.
Fifth, no matter how interested you may become in the facts of the case, you must not do any
independent research, investigation or experimentation. Do not look up materials on the internet
or in other sources. [do not visit the site of the incident] [or perform any kind of experiment.] Again,
you must base your verdict solely on the evidence produced in court.
Credibility of Witnesses
In deciding the facts, you may have to decide which testimony to believe and which testimony
not to believe. You may believe everything a witness says, part of it, or none of it. In considering
the testimony of any witness, you may take into account many factors, including the witness’s
opportunity and ability to see or hear or know the things the witness testified about; the quality of
the witness’s memory; the witness’s appearance and manner while testifying; the witness’s interest
in the outcome of the case; any bias or prejudice the witness may have; other evidence that may have
contradicted the witness’s testimony; and the reasonableness of the witness’ testimony in light of all
the evidence. The weight of the evidence does not necessarily depend upon the number of witnesses
who testify.
Depositions
During the course of a trial the lawyers will often refer to and read from depositions.
Depositions are transcripts of testimony taken while the parties are preparing for trial. Deposition
testimony is given under oath just like testimony on the trial. You should give it the same
consideration you would give it had the witnesses testified here in court.
Objections
During the trial, you will hear the lawyers make objections to certain questions or to certain
answers of the witnesses. When they do so, it is because they believe the question or answer is legally
improper and they want me to rule on it. Do not try to guess why the objection is being made or
what the answer would have been if the witness had been allowed to answer it.
If I tell you not to consider a particular statement that has already been made, put that
statement out of your mind and remember that you may not refer to it during your deliberations.
Questions
During the trial, I may sometimes ask a witness questions. Please do not assume that I have
any opinion about the subject matter of my questions.
If you wish to ask a question about something you do not understand, write it down on a
separate slip of paper. If, when the lawyers have finished all of their questioning of the witness, the

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question is still unanswered to your satisfaction, raise your hand, and I will take the written question
from you, show it to counsel, and decide whether it is a question that can be asked. If it cannot, I
will tell you that. I will try to remember to ask about questions after each witness has testified.
Notetaking
The clerk will give each of you a notepad and pencil for taking notes. This does not mean you
have to take notes; take them only if you want to and if you think they will help you to recall the
evidence during your deliberations. Do not let notetaking interfere with your important duties of
listening carefully to all of the evidence and of evaluating the credibility of the witnesses. Keep in
mind that just because you have written something down it does not mean that the written note is
more accurate than another juror's mental recollection of the same thing. No one of you is the
"secretary" for the jury, charged with the responsibility of recording evidence. Each of you is
responsible for recalling the testimony and other evidence.
Although you can see that the trial is being reported, you should not expect to be able to use
trial transcripts in your deliberations. You will have to rely on your own memories.
Evidence
Evidence at a trial includes the sworn testimony of the witnesses, exhibits admitted into the
record, facts judicially noticed, and facts stipulated by counsel. You may consider only evidence that
is admitted into the record.
In deciding the facts of this case, you are not to consider the following as evidence: statements
and arguments of the lawyers, questions and objections of the lawyers, testimony that I instruct you
to disregard, and anything you may see or hear when the court is not in session even if what you see
or hear is done or said by one of the parties or by one of the witnesses.
Evidence may be either direct or circumstantial. Direct evidence is direct proof of a fact, such
as testimony by a witness about what the witness said or heard or did. Circumstantial evidence is
proof of one or more facts from which you could find another fact. You should consider both kinds
of evidence. The law makes no distinction between the weight to be given to either direct or
circumstantial evidence. You are to decide how much weight to give any evidence.
Contradictory or Impeaching Evidence
A witness may be discredited by contradictory evidence or by evidence that at some other time
the witness has said or done something, or has failed to say or do something, that is inconsistent with
the witness's present testimony.
If you believe any witness has been discredited, it is up to you to decide how much of the
testimony of that witness you believe.
If a witness is shown to have given false testimony knowingly, that is, voluntarily and
intentionally, about any important matter, you have a right to distrust the witness's testimony about
other matters. You may reject all the testimony of that witness or you may choose to believe some
or all of it.
The general rule is that if you find that a witness said something before the trial that is
different from what the witness said at trial you are to consider the earlier statements only as an aid

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in evaluating the truthfulness of the witness's testimony at trial. You cannot consider as evidence in
this trial what was said earlier before the trial began.
There is an exception to this general rule for witnesses who are the actual parties in the case.
If you find that any of the parties made statements before the trial began that are different from the
statements they made at trial, you may consider as evidence in the case whichever statement you find
more believable.
Drawing of Inferences
You are to consider only the evidence in the case. But in your consideration of the evidence,
you are not limited solely to what you see and hear as the witnesses testify. You are permitted to
draw, from facts you find have been proved, such reasonable conclusions as seem justified in the light
of your own experience and common sense.
Experts
A person's training and experience may make him or her a true expert in a technical field. The
law allows that person to state an opinion here about matters in that particular field. It is up to you
to decide whether you believe the expert's testimony and choose to rely upon it. Part of that decision
will depend on your judgment about whether the expert's background of training and experience is
sufficient for him or her to give the expert opinion that you heard, and whether the expert's opinions
are based on sound reasons, judgment, and information.
During the trial, an expert witness may be asked a question based on assumptions that certain
facts are true and then asked for his or her opinion based upon that assumption. Such an opinion
is of use to you only if the opinion is based on assumed facts that are proven later. If you find that
the assumptions stated in the question have not been proven, then you should not give any weight
to the answer the expert gave to the question.

II. POST-TRIAL INSTRUCTIONS
Introduction
Ladies and Gentlemen of the Jury:
Now that you have heard the evidence and the arguments, I will give you the instructions that
will govern your deliberations in the jury room. It is my job to decide what rules of law apply to the
case and to explain those rules to you. It is your job to follow the rules, even if you disagree with
them or don't understand the reasons for them. You must follow all of the rules; you may not follow
some and ignore others.
The decision you reach in the jury room must be unanimous. In other words, you must all
agree on the answer to each question.
Your deliberations will be secret. You will never have to explain your verdict to anyone.
If you have formed any idea that I have an opinion about how the case should be decided,
disregard that idea. It is your job, not mine, to decide the facts of this case.
The case will be submitted to you in the form of a special verdict consisting of____ questions.
In answering the questions, you should consider only the evidence that has been received at this trial.

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Do not concern yourselves with whether your answers will be favorable to one side or another, or
with what the final result of this lawsuit may be.
Note that certain questions in the verdict are to be answered only if you answer a preceding
question in a certain manner. Read the introductory portion of each question very carefully before
you undertake to answer it. Do not answer questions needlessly.
Burden of Proof
When a party has the burden to prove any matter by a preponderance of the evidence, it
means that you must be persuaded by the testimony and exhibits that the matter sought to be proved
is more probably true than not true. You should base your decision on all of the evidence, regardless
of which party presented it.
Middle Burden of Proof
In answering question
, you are instructed that the burden is on the plaintiff to convince
you to a reasonable certainty by evidence that is clear, satisfactory, and convincing that the answer
should be "yes."
Answers Not Based on Guesswork
If, after you have discussed the testimony and all other evidence that bears upon a particular
question, you find that the evidence is so uncertain or inadequate that you have to guess what the
answer should be, then the party having the burden of proof as to that question has not met the
required burden of proof. Your answers are not to be based on guesswork or speculation. They are
to be based upon credible evidence from which you can find the existence of the facts that the party
must prove in order to satisfy the burden of proof on the question under consideration.
Selection of Presiding Juror; Communication with the Judge; Verdict
When you go to the jury room to begin considering the evidence in this case you should first
select one of the members of the jury to act as your presiding juror. This person will help to guide
your discussions in the jury room.
You are free to deliberate in any way you decide or select whomever you like as a presiding
juror. However, I am going to provide some general suggestions on the process to help you get
started. When thinking about who should be presiding juror, you may want to consider the role that
the presiding juror usually plays. He or she serves as the chairperson during the deliberations and
has the responsibility of insuring that all jurors who desire to speak have a chance to do so before any
vote. The presiding juror should guide the discussion and encourage all jurors to participate.
Once you are in the jury room, if you need to communicate with me, the presiding juror will
send a written message to me. However, don't tell me how you stand as to your verdict.
As I have mentioned before, the decision you reach must be unanimous; you must all agree.
When you have reached a decision, the presiding juror will sign the verdict form, put a date
on it, and all of you will return with the verdict into the court.

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Suggestions for Conducting Deliberations:
In order to help you determine the facts, you may want to consider discussing one claim at a
time, and use my instructions to the jury as a guide to determine whether there is sufficient evidence
to prove all the necessary legal elements for each claim or defense. I also suggest that any public votes
on a verdict be delayed until everyone can have a chance to say what they think without worrying
what others on the panel might think of their opinion. I also suggest that you assign separate tasks,
such as note taking, time keeping and recording votes to more than one person to help break up the
workload during your deliberations. I encourage you at all times to keep an open mind if you ever
disagree or come to conclusions that are different from those of your fellow jurors. Listening carefully
and thinking about the other juror's point of view may help you understand that juror’s position
better or give you a better way to explain why you think your position is correct.

III. DAMAGES
General
On the damages question, the party asking for damages has the burden of convincing you, by
the preponderance of the evidence, both that he or she has been injured or damaged and the amount
of the damages.
The party seeking damages need not produce evidence that is as exact as the evidence needed
to support findings on other questions in the verdict. Determining damages involves the
consideration of many different factors that cannot be measured precisely. In determining the
damages you must base your answer on evidence that reasonably supports your determination of
damages under all of the circumstances of the case. You should award as damages the amount of
money that you find fairly and reasonably compensates the named party for his or her injuries.
Do not measure damages by what the lawyers ask for in their arguments. Their opinions as
to what damages should be awarded should not influence you unless their opinions are supported by
the evidence. It is your job to determine the amount of the damages sustained from the evidence you
have seen and heard. Examine that evidence carefully and impartially. Do not add to the damage
award or subtract anything from it because of sympathy to one side or because of hostility to one
side. Do not make any deductions because of a doubt in your minds about the liability of any of the
parties.
Income Taxes
You must not add to any award of damages any money to compensate the plaintiff for state
or federal income taxes. Damages received as an award for personal injuries are exempt from income
taxes. On the other hand, you must not subtract any money from your award of damages just
because the plaintiff is not required to pay income taxes.
Pain and Suffering
In determining how much money will fairly and reasonably compensate plaintiff for past pain
and suffering [disability] [disfigurement] [mental anguish] [loss of capacity for enjoyment of life],

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you should consider any pain and suffering, mental anguish and apprehension, sorrow and anxiety
plaintiff has endured from the time of the incident up to the present time. There is no exact standard
for deciding how much to award plaintiff for these damages. Your award should be fair and just in
the light of the evidence.
Aggravation of Pre-existing Injury or Condition
The evidence shows that the plaintiff was previously injured when ______________________.
If the injuries plaintiff received at _______________ aggravated any physical, mental or emotional
condition resulting from the earlier injury or injuries, you should award fair and reasonable
compensation for such aggravation. However, you should award compensation only if you find the
aggravation of the existing condition was a natural result of the injuries received at
__________________.
Duty to Mitigate Damages
A person who has been damaged may not recover for losses that he or she could have reduced
by reasonable efforts. “Reasonable efforts” do not include efforts that might cause serious harm or
subject the person making the effort to an unreasonable risk, unreasonable inconvenience,
unreasonable expense, disorganization of his or her business or loss of honor and respect.
If you find that a reasonable person would have taken steps to reduce the loss, and if you find
that the plaintiff did not take such steps, then you should not include as damages any amount the
plaintiff could have avoided. If you find that a reasonable person would not have taken steps to
reduce the loss under all of the circumstances existing in the case, then you should not consider the
plaintiff’s failure to act when you determine damages.
It is defendants’ burden to satisfy you by the greater weight of the credible evidence that
plaintiff should have taken steps to reduce the loss and failed to do so.
Mortality Tables
In answering the question of future damages as a result of plaintiff’s injuries, you may take
into consideration the fact that at this time_______ is ________ years of age. According to the
mortality tables, plaintiff has a life expectancy of ____ years.
Although a mortality table giving the expectancy of life of a person of _________’s age, was
received in evidence as an aid in determining such expectancy, it is not conclusive or binding upon
you. Such tables are based upon averages, and there is no certainty that any person will live the
average duration of life rather than a longer or shorter period. In order to determine the probable
length of life of ____________, you should take into consideration all of the facts and circumstances
established by the credible evidence bearing upon that subject.
Future Earnings
In determining the amount of damages for any loss of ________ that will be incurred in the
future, it is your duty to determine the present worth of such future damages.

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By present worth, I am referring to the fact that a lump sum of money received today is worth
more than the same sum paid in installments over a period of months or years. A sum received today
can be invested and earn money at current interest rates. Your answer will reflect the present value
in dollars of an award of future damages if you make a reduction for the earning power of money.
Keep in mind that this instruction does not apply to the portion of future damages that
represents future pain and suffering. In computing the amount of future damages, you may take into
account economic conditions, present and future, and the effects of inflation.
The fact that I have instructed you on the proper measure of damages does not mean I have
any view about the verdict in this case. These instructions on damages are only for your guidance
in the event that you should find in favor of plaintiff on the question of liability.
Punitive Damages
If you answered “yes” to Question No. ___, you may award punitive damages in addition to
compensatory damages. You are not required to make any award of punitive damages, but you may
do so if you think it is proper under the circumstances to make such an award as an example or
punishment to deter the defendant and others from offending in a similar manner in the future. In
deciding whether to make an award of punitive damages you may also consider the seriousness of the
offense committed.
Punitive damages may be awarded even if the violation of plaintiff's rights resulted in only
nominal compensatory damages. That is, even if the plaintiff can show no damages or other injury
as a result of a defendant's actions, if the defendant acted with deliberate indifference to plaintiff's
rights, punitive damages may be awarded.
Punitive damages are never a matter of right. It is in the jury's discretion to award or withhold
them. Punitive damages may not be awarded unless the defendant acted with deliberate indifference
to the plaintiff's rights. Even if you find that the violations were reckless or deliberate, you may
withhold or allow punitive damages as you see fit.
If you find that a defendant's conduct was motivated by evil motive or intent, such as ill will
or spite or grudge either toward the injured person individually or toward all persons such as plaintiff,
then you may find that the defendant deliberately violated the plaintiff's rights.
Acts are reckless when they represent a gross departure from ordinary care in a situation where
a high degree of danger is apparent. If the defendant was in a position in which he certainly should
have known that his conduct would violate the plaintiff's rights, and proceeded to act in disregard of
that knowledge and of the harm or the risk of harm that would result to the plaintiff, then he acted
with reckless disregard for the plaintiff's rights.
In answering this question, you are instructed that the burden is on the plaintiff to convince
you to a reasonable certainty by evidence that is clear, satisfactory, and convincing that the answer
should be "yes."

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PROCEDURES FOR CALLING WITNESSES TO TRIAL
IN CASES ASSIGNED TO JUDGE CRABB
At trial, plaintiff will have to be ready to prove facts supporting his claims against the
defendants. One way to offer proof is through the testimony of witnesses who have personal
knowledge about the matter being tried. If a party wants witnesses to be present and available to
testify on the day of trial, the party must follow the procedures explained below. (“Party” means
either a plaintiff or a defendant.) These procedures must be followed whether the witness is:
1) A defendant to be called to testify by a plaintiff; or
2) A plaintiff to be called to testify by a defendant; or
3) A person not a party to the lawsuit to be called to testify by either a plaintiff or a defendant.

I. PROCEDURES FOR OBTAINING ATTENDANCE OF INCARCERATED
WITNESSES WHO AGREE TO TESTIFY VOLUNTARILY
An incarcerated witness who tells a party that he is willing to attend trial to give testimony
cannot come to court unless the court orders his custodian to let him come. The Court must issue
an order known as a writ of habeas corpus ad testificandum. This court will not issue such a writ
unless the party can establish to the court’s satisfaction that
1) The witness has agreed to attend voluntarily; and
2) The witness has actual knowledge of facts directly related to the issue to be tried.

A witness’s willingness to come to court as a witness can be shown in one of two ways.
a. The party can serve and file an affidavit declaring under penalty of perjury that the
witness told the party that he or she is willing to testify voluntarily, that is, without being
subpoenaed. The party must say in the affidavit when and where the witness informed the
party of this willingness;
OR

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b. The party can serve and file an affidavit in which the witness declares under penalty
of perjury that he or she is willing to testify without being subpoenaed.

The witness's actual knowledge of relevant facts may be shown in one of two ways.
a.

The party can declare under penalty of perjury that the witness has relevant

information about the party’s claim. However, this can be done only if the party knows
first-hand that the witness saw or heard something that will help him prove his case.
For example, if the trial is about an incident that happened in or around a plaintiff's
cell and, at the time, the plaintiff saw that a cellmate was present and witnessed the
incident, the plaintiff may tell the court in an affidavit what happened, when and
where the incident occurred, who was present, and how the witness was in a position
to see or hear what occurred;
OR
b. The party can serve and file an affidavit in which the witness tells the court what
happened, when and where the incident occurred, who was present, and how the
witness was in a position to see or hear what occurred.

Not later than four weeks before trial, a party planning to use the testimony of an incarcerated
witness who has agreed to come to trial must serve and file a written motion for a court order
requiring the witness to be brought to court at the time of trial. The motion must
1) State the name and address of the witness; and
2) Come with an affidavit described above to show that the witness is willing to testify and
that the witness has first-hand knowledge of facts directly related to the issue to be tried.

When the court rules on the motion, it will say who must be brought to court and will direct the clerk
of court to prepare the necessary writ of habeas corpus ad testificandum.

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II. PROCEDURE FOR OBTAINING THE ATTENDANCE OF INCARCERATED
WITNESSES WHO REFUSE TO TESTIFY VOLUNTARILY
If an incarcerated witness refuses to attend trial, TWO separate procedures are required. The
court will have to issue a writ of habeas corpus ad testificandum telling the warden to bring the
witness to trial and the party must serve the witness with a subpoena.
Not later than four weeks before trial, the party seeking the testimony of an incarcerated
witness who refuses to testify voluntarily must file a motion asking the court to issue a writ of habeas
corpus ad testificandum and asking the court to provide the party with a subpoena form. (All
requests from subpoenas from pro se litigants will be sent to the judge for review before the clerk will
issue them.)
The motion for a writ of habeas corpus ad testificandum will not be granted unless the party
submits an affidavit
1) Giving the name and address of the witness; and
2) Declaring under penalty of perjury that the witness has relevant information about the
party’s claim. As noted above, this can be done only if the party knows first-hand that the witness
saw or heard something that will help him prove his case. In the affidavit, the party must tell the
court what happened, when and where the incident occurred, who was present, and how the witness
was in a position to see or to hear what occurred.
The request for a subpoena form will not be granted unless the party satisfies the court in his
affidavit that
1) The witness refuses to testify voluntarily;
2) The party has made arrangements for a person at least 18 years of age who is not a party
to the action to serve the subpoena on the witness; or
3) The party is proceeding in forma pauperis, has been unable to arrange for service of the
subpoena by a person at least 18 years of age who is not a party to the action and needs assistance
from the United States Marshal or a person appointed by the court.

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If the court grants the party’s request for a subpoena for an incarcerated witness, it will be the party's
responsibility to complete the subpoena form and send it to the person at least 18 years of age who
will be serving the subpoena or to the United States Marshal, if the court has ordered that the
subpoena be served by the Marshal. The address of the United States Marshal is 120 N. Henry St.,
Suite 440, Madison, Wisconsin, 53703. If the subpoena is not received by the marshal at least two
weeks in advance of trial, the marshal may not have enough time to serve the subpoena on the party’s
witness.

III. UNINCARCERATED WITNESSES WHO AGREE TO
TESTIFY VOLUNTARILY
It is the responsibility of the party who has asked an unincarcerated witness to come to court
to tell the witness of the time and date of trial. No action need be sought or obtained from the court.

IV. UNINCARCERATED WITNESSES WHO REFUSE
TO TESTIFY VOLUNTARILY
If a prospective witness is not incarcerated, and he or she refuses to testify voluntarily, no later
than four weeks before trial, the party must serve and file a request for a subpoena form. All parties
who want to subpoena an unincarcerated witness, even parties proceeding in forma pauperis, must
be prepared to tender an appropriate sum of money to the witness at the time the subpoena is served.
The appropriate sum of money is a daily witness fee and the witness's mileage costs. In addition, if
the witness's attendance is required for more than one trial day, an allowance for a room and meals
must be paid. The current rates for daily witness fees, mileage costs and room and meals may be
obtained either by writing the clerk of court at P.O. Box 432, Madison, Wisconsin, 53703, or calling
the office of the clerk at [phone].
Before the court will grant a request for a subpoena form for an unincarcerated witness, the
party must satisfy the court by affidavit declared to be true under penalty of perjury that

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1) The witness refuses to testify voluntarily;
2) The party has made arrangements for a person at least 18 years of age who is not a party
to the action to serve the subpoena on the witness; or
3) The party is proceeding in forma pauperis, has been unable to arrange for service of the
subpoena by a person at least 18 years of age who is not a party to the action and needs assistance
from the United States Marshal or a person appointed by the court; and
4) The party is prepared to tender to the marshal or other individual serving the subpoena a
check or money order made payable to the witness in an amount necessary to cover the daily witness
fee and the witness’s mileage, as well as costs for room and meals if the witness’s appearance at trial
will require an overnight stay.
If the court grants the party’s request for a subpoena for an unincarcerated witness, it will be
the party's responsibility to complete the subpoena form and send it to the person at least 18 years
of age who will be serving the subpoena or to the United States Marshal, if the court has ordered that
the subpoena be served by the marshal, together with the necessary check or money order. The
address of the United States Marshal is 120 N. Henry St., Suite 440, Madison, Wisconsin, 53703.
If the subpoena is not received by the marshal at least two weeks in advance of trial, the marshal may
not have enough time to serve the subpoena on the party’s witness.

V. SUMMARY
The chart below may assist in referring you to the section of this paper which sets forth the
appropriate procedure for securing the testimony of witnesses in your case.

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WITNESSES

INCARCERATED

VOLUNTARY
A court order that
the witness be
brought to court is
required. Papers are
due 4 weeks before
trial.

INVOLUNTARY
A court order that the
witness be brought to
court and a subpoena are
required. A motion must
be served & filed 4 weeks
before trial. Subpoena
forms must be completed 2
weeks before trial.

UNINCARCERATED

VOLUNTARY
Nothing need be sought
or obtained from the
court.

INVOLUNTARY
Pro se parties must
obtain an order
granting issuance of
a subpoena. Papers
are due 4 weeks
before trial.
Completed forms
and fees are due 2
weeks before trial.

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Office of the Clerk
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
___________________________________________________________________________________
120 North Henry Street, Room 320 • P.O. Box 432 • Madison, WI 53701-0432 • 608-264-5156

October 27, 2006
MEMO TO COUNSEL

If a case is settled on the weekend before trial, the court should be notified
immediately by calling Clerk of Court Peter Oppeneer at [phone]. This notification
will enable the Clerk to call off unneeded jurors and to advise the trial judge to discontinue
working on the case. The same procedure should be followed to report last-minute
emergencies which might affect the start of the trial.

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ORDER IN NON-JURY CASES
ASSIGNED TO JUDGE CRABB

Counsel are hereby directed to observe the following requirements in preparing for
the trial to the court in this case:
1. No later than TWO WEEKS IN ADVANCE OF THE TRIAL counsel are to confer
for the following purposes:
A.
To enter into comprehensive written
stipulations of all uncontested facts in such form
that they can be offered at trial as the first
evidence presented by the party desiring to offer
them. If there is a challenge to the admissibility
of some uncontested facts that one party wishes
included, the party objecting and the grounds for
objection must be stated.
B. To make any deletions from their previouslyexchanged lists of potential trial witnesses.
C. To enter into written stipulations setting forth
the qualifications of expert witnesses.
D. To examine, mark, and list all exhibits that
any party intends to offer at trial. (A copy of this
court’s procedures for marking exhibits is
contained in this packet.)
E.
To agree as to the authenticity and
admissibility of such exhibits so far as possible
and note the grounds for objection to any not
agreed upon.
F. To agree so far as possible on the contested
issues of law.
G.
To examine and prepare a list of all
depositions and portions of depositions to be read

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into evidence and agree as to those portions to be
read. If any party objects to the admissibility of
any portion, the name of the party objecting and
the grounds shall be set forth.
H. To explore the prospects of settlement.
It shall be the responsibility of plaintiff’s counsel to convene the conference between counsel
and, following that conference, to prepare the Pretrial Statement described in the next
paragraph.
2. No later than ONE WEEK PRIOR TO THE TRIAL, plaintiff’s counsel shall
submit a Pretrial Statement containing the following:
A.
The parties’ comprehensive
stipulations of all uncontested facts.

written

B. The probable length of trial.
C. The names of all prospective witnesses. Only
witnesses so listed will be permitted to testify at
the trial except for good cause shown.
D. The parties’ written stipulation setting forth
the qualifications of all expert witnesses.
E. Schedules of all exhibits that will be offered in
evidence at the trial, together with an indication
of those agreed to be admissible and a summary
statement of the grounds for objection to any not
agreed upon. Only exhibits so listed shall be
offered in evidence at the trial except for good
cause shown.
F. An agreed statement of the contested issues of
law supplemented by a separate statement by
each counsel of those issues of law not agreed to
by all parties.

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G. A list of all depositions and portions of
depositions to be offered in evidence, together
with an indication of those agreed to be
admissible and summary statements of the
grounds for objections to any not so agreed upon.
If only portions of a deposition are to be offered,
counsel should mark the deposition itself with
colored markers identifying the portions each
party will rely upon.
3. No later than ONE WEEK PRIOR TO TRIAL, each counsel shall file with the
court and serve upon opposing counsel a statement of all the facts that counsel will request
the court to find at the conclusion of the trial. In preparing these statements, counsel should
have in mind those findings that will support a judgment in their client’s favor. The
proposed findings should be complete. They should be organized in the manner in which
counsel desire them to be entered. They should include stipulated facts, as well as facts not
stipulated to but which counsel expect to be supported by the record at the conclusion of the
trial. Those facts that are stipulated to shall be so marked.
4. Along with the proposed findings of fact required by paragraph 3 of this order,
each counsel shall also file and serve a proposed form of special verdict, as if the case were
to be tried to a jury.
5. Before the start of trial, each counsel shall submit to the court a complete set of
counsel’s pre-marked trial exhibits to be used by the judge as working copies at trial.

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6. If counsel wish to submit trial briefs, they are to do so no later than THREE
WORKING DAYS PRIOR TO TRIAL. Copies of briefs must be provided to opposing
counsel.
Final pretrial submissions are to be filed as stated above with no exceptions. Failure
to file or repeated and flagrant violations may result in the loss of membership in the bar of
this court.

Entered this 27th day of October, 2006.
BY THE COURT:
BARBARA B. CRABB
District Judge

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ORDER REGARDING TIMELY PRESENTATION
OF TRIAL WITNESSES AND TRIAL EVIDENCE

The parties must have all witnesses and other evidence ready and available for timely
presentation at trial in order to prevent delay. Failure to comply with this order will be
grounds for an order precluding the presentation of any additional evidence by the noncomplying party.
Entered this 27th day of October, 2006.
BY THE COURT:
BARBARA B. CRABB
District Judge