Rice II v. City of Boise City et al

Filing 208

PRETRIAL ORDER - Jury Selection set for 4/20/2018 09:30 AM in Boise - Courtroom 3 before Judge B. Lynn Winmill. Once the jury is selected, they will be sent home with instructions to return for the trial beginning Monday 4/23/2018, at 1:30 PM in Boise - Courtroom 3 before Judge B. Lynn Winmill. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
LEE ARTHUR RICE, II, an individual,

Plaintiff,
Case No. 1:13-CV-441-BLW
v.
PRETRIAL ORDER
DALE MOREHOUSE, JEFFREY A. HILL,
MARK AMBERCROMBIE, and NICK
SHAFFER,
Defendants.

On April 9, 2018, the Court’s staff held a pretrial conference in this matter.
Based on that conference, and on further consideration, the Court issues the
following order:
NOW THEREFORE IT IS HEREBY ORDERED, that
1.

Legal Issues Remaining: The only issues in this case are (1) whether the
four remaining defendants used excessive force during the scum on plaintiff
Rice, and, if so, (2) whether Rice suffered injury, (3) whether he is entitled
to monetary damages; and (4) whether he is entitled to punitive damages.

2.

Jurors: Seven jurors will be empaneled to try the case. There are no
alternates and the jury must be unanimous in its verdict.

Pretrial Order -- page 1

3.

Jury Selection:

Jury selection will begin on Friday April 20, 2018, at

9:30 a.m. in the Federal Courthouse in Boise, Idaho. Once the jury is
selected, they will be sent home with instructions to return for the trial
beginning Monday April 23, 2018, at 1:30 pm in the Federal Courthouse in
Boise, Idaho.
4.

Preemptory Challenges: Plaintiff will have 3 preemptory challenges.
Defendants will share a total of 3 preemptory challenges (not 3 preemptories
each).

5.

Time Allotted for Attorney Voir Dire: Plaintiff shall have 20 minutes for
voir dire questioning by counsel, and Defendants shall have 20 minutes total.

6.

Magistrate Taking the Verdict: Unless an objection is filed, the Court
will assume that all parties agree that, if necessary, a Magistrate Judge may
take the verdict in this case.

7.

Trial Day: The schedule for each trial day is set out below:
Monday:

1:30 pm to 5:00 pm (with 15 min break at about 3:30 pm).

Tuesday:

8:30 am to 1:00 pm – lunch from 1:00 pm to 3:30 pm –

continue trial from 3:30 to 5:00 pm.
Wednesday: 8:30 to 2:30 - two 15 min breaks at about 10:30 am and 12:30
pm)

Pretrial Order -- page 2

Thursday:
Friday:
8.

Same
Same

Time Allocation: Because the Court must complete the evidence and
closing arguments by Friday, and to ensure that each side gets a fair
allocation of time during that week, the Court will estimate the trial hours
and allocate them accordingly. You will use your time allocation during
opening statements, direct and cross, and closing argument – time spent in
voir dire does not count against your allocated time. You will also lose
time for any objection you make that is not sustained. The time estimates
for each day (set forth below) are slightly less than the hours might indicate
because there are inevitably some minutes lost in returning to court, etc.
Monday:

3 hours (1:30 to 5:00 pm with 15 min break).

Tuesday:

6.00 hours (8:30 to 1:00 - 3:30 to 5:00 pm)

Wednesday: 5.5 hours (8:30 to 2:30 - two 15 min breaks)
Thursday:

5.5 hours (same)

Friday:

5.5 hours (same)

Adding these trial hours produces a total of 25.5 hours. Because the
plaintiff carries the burden of proof, the plaintiff will receive a slightly
higher allocation of hours. The Court will allocate the 25.5 hours as

Pretrial Order -- page 3

follows: Plaintiff 13.5 hours; Defense 12 hours (total). The Court will keep
a time clock and advise counsel each day as to the numbers of hours they
have used.

9.

Trial Procedures:
a.

The Court will generally control voir dire, and counsel will be limited
to the time set forth above. Counsel are cautioned not to repeat
questions already asked by the Court or other counsel and are advised
that the Court will not permit voir dire which appears intended to
influence the jury rather than explore appropriate concerns with a
juror’s ability to be fair and impartial.

b.

Counsel shall exercise good faith in attempting to reach a stipulation
on undisputed facts and admission of exhibits.

c.

During trial, the jury will be in the box hearing testimony the entire
trial day, except for the standard recesses – I do not send the jury out
to accommodate argument over evidence or other matters.

d.

During the time the jury is in the jury box, no argument, beyond onesentence evidentiary objections, shall be allowed to interrupt the
flow of testimony. Almost all objections should be stated in one to
three words (“hearsay”, “asked & answered”, “irrelevant”, etc.). If

Pretrial Order -- page 4

counsel have matters that need to be resolved outside the presence of
the jury, they are to advise the Court and counsel prior to the issue
arising during trial so that it can be heard during a recess, or before or
after the jury convenes. Where the need for such a hearing cannot be
anticipated, the Court will direct the examining counsel to avoid the
objectionable subject and continue on a different line of questioning
so that the objection can be argued and resolved at the next recess.
To avoid late-night sessions, counsel are advised to bring up all
anticipated evidentiary questions in their pretrial briefs.
1.

Examples of improper objections: “I object to that question,
Your Honor, because I am sure that Charlie Witness did not
read that document very carefully before he signed it”; or, “I
object, Your Honor, because Charlene Witness has already
testified that she can't remember”. These “speaking
objections” would suggest an answer.

e.

Counsel shall have enough witnesses ready to ensure a full day of
testimony. If witnesses are unavoidable delayed, counsel shall
promptly notify the court and opposing counsel.

f.

When counsel announce the name of a witness called to testify, the

Pretrial Order -- page 5

Court or the clerk will summon the witness forward to be sworn, the
clerk will administer the oath and, after the witness is seated, ask the
witness to state her or his name and spell her or his last name for the
record. I will then indicate to counsel that she or he may inquire of the
witness.
g.

Please do not address parties or witnesses (including your own) by her
or his first name unless such familiarity is clearly appropriate, and is
not likely to be offensive to the witness or any juror. In case of doubt,
don’t.

h.

Your clients and your witnesses should be instructed that they should
always refer to you and opposing counsel by last names.

I.

You are responsible to advise your clients, your witnesses and
everyone associated with your client to avoid all contact with the
jurors. This prohibition includes seemingly innocuous behavior like
riding on an elevator with a juror, saying hello to a juror, or even
acknowledging the juror’s presence.

j.

I try to conduct at least 2 or 3 informal jury instruction conferences
off the record to try and resolve most differences by agreement. Those
sessions will be held at the end of the trial day and may stretch into

Pretrial Order -- page 6

the evening. At the end of those sessions, we will have refined the
issues of contention so that I can give you a set of my final
instructions and you can state your objections on the record.

DATED: April 11, 2018

_________________________
B. Lynn Winmill
Chief U.S. District Court Judge

Pretrial Order -- page 7