Morris et al v. West Hayden Estates First Addition Homeowners Association, Inc.

Filing 80

ORDER. Counsel shall confer and attempt to reach a stipulation to the admission of as many exhibits as possible and submit a Joint Exhibit List by 10/10/2018. (Motions in Limine due by 10/15/2018. Jury Trial set for 10/22/2018 01:30 PM in Coeur d Alene - District Courtroom 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 (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MR. JEREMY MORRIS and MRS.
KRISTY MORRIS,
Plaintiffs,

Case No. 2:17-cv-00018-BLW
ORDER

v.
WEST HAYDEN ESTATES FIRST
ADDITION HOMEOWNERS
ASSOCIATION, INC.,
Defendant.

Following a conference with all counsel and the Court on October 5,
2018, the Court enters the following Pre-Trial order:
1. Exhibits: Counsel shall confer and attempt to reach a stipulation to the
admission of as many exhibits as possible and submit a Joint Exhibit List on or
before October 10, 2018. For those exhibits in dispute, the objecting party
shall submit on or before October 12, 2018, a short statement describing why
the exhibit is objectionable.
2. Motions in Limine: The Parties’ motions in limine shall be due on or before
October 15, 2018.

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3. Trial Schedule: Jury selection shall begin on Monday, October 22, 2018, at
1:30 p.m. The taking of evidence shall be concluded on October 30, 2018. The
Court notes that trial will not be held on Friday, October 26, 2018.
4. Typical Trial Day: Trial will be conducted from 8:30 am to 2:30 pm, with two
breaks (about 15 to 20 minutes each) at about 10:30 am and 12:30 pm.
5. Number of Jurors: The Court will seat 7 jurors to try the case.
6. Peremptory Challenges: Under 28 U.S.C. § 1870, each party is entitled to three
peremptory challenges.
7. Voir Dire Jury Panel Size: To pick a jury of 7 with 6 total peremptory
challenges, the Court will originally seat 13 jurors for voir dire, with all
remaining jurors to sit in the back of the courtroom to be called up if a juror is
excused for cause.
8. On-The-Clock:
a. The Court finds that a total of 25 hours of in-court time is a fair and
reasonable amount of time to litigate this case. The Court’s experience is
that a typical trial day involves 5 hours of actual in-court time with the jury
present. The 25-hour allocation will allow for 5 full trial days, which
should be sufficient. The Court will split this time equally, and hence each
side will have 12.5 hours to put on their case. The Court’s staff will keep
track of time and alert counsel at the end of each trial day how much time
they have used. Time will not be deducted for voir dire, but will be

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deducted for openings and closings, direct and cross examinations, and
objections that are unsuccessful.
9. Time Limits on Voir Dire: Plaintiff and defendant will each get 20 minutes to
do their own voir dire.
10. Batson Issues & Voir Dire: Preemptory strikes that exclude jurors based on
race or gender violate the Equal Protection Clause. See Batson v. Kentucky,
476 U.S. 79 (1986) (race); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)
(gender); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991)
(Batson extended to civil cases). While the Ninth Circuit does not appear to
have extended Batson to strikes based on religion, courts in other jurisdictions
have noted in dicta that while striking a juror for having a certain religious
affiliation might violate the Equal Protection Clause, striking a jury for
religious activity or belief would not. U.S. v. Brown, 352 F.3d 654, 669 (2d
Cir. 2003); U.S. v. DeJesus, 347 F.3d 500, 511 (3d Cir. 2003). The Court cites
this authority simply as background and is not making any ruling on Batson
issues at this time. It is enough to say that Batson’s application to strikes based
on religious affiliation or activity appears to be an open question in the Ninth
Circuit. Given the issues at stake in this case, some inquiry into religious
activity and belief is necessary to ensure a fair and impartial jury. The Court
will conduct that voir dire, and as discussed at the conference with counsel,
will ask many of the questions proposed by counsel with perhaps some slight
modifications. The Court will provide counsel with the Court’s proposed voir
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dire questions by October 12, 2018. The Court will also send to counsel
proposed pre-voir dire jury instructions and pre-proof jury instructions by that
same date.
11. Declaratory Judgment Verdict Form Questions: The Court is considering
using the jury in an advisory capacity on the issues raised by the defendant’s
request for a declaratory judgment. Counsel shall submit to the Court on or
before October 12, 2018, proposed questions for the jury to answer in the
Special Verdict Form concerning the declaratory judgment issue.
12. Opening Statements: The Court will not put restrictions on counsel but simply
notes the marked drop-off in juror attention spans after listening to about 20
minutes of an opening statement. The Court requests that counsel notify the
Court if either party expects opening statements to exceed 60 minutes.
13. Trial Procedures:
a. During trial, the jury will be in the box hearing testimony the entire trial
day between 8:30 a.m and 2:30 p.m., except for the standard fifteen to
twenty minute recesses.
b. During the time the jury is in the jury box, no argument, beyond one
sentence evidentiary objections, shall be allowed to interrupt the flow of
testimony. If somewhat more extensive argument is needed, the Court may
call for a sidebar. If the matter cannot be resolved at sidebar, counsel will
be directed to avoid the objectionable subject and continue on a different

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line of questioning so that the objection can be argued and resolved at
another time, either after 2:30 p.m or before 8:30 a.m.
c. Counsel shall have enough witnesses ready to ensure a full day of
testimony. If witnesses are unavoidably delayed, counsel shall promptly
notify the court and opposing counsel.
14. Notice of Next-Day Witnesses: The parties agree that witnesses will be
identified as to when they will testify 36 hours in advance, including a list of
any demonstrative exhibits to be used by said witnesses.
15. Examination & Objections
a. When you announce the name of your witness, the Court or the clerk will
summon them forward to be sworn, the clerk will administer the oath and,
after the witness is seated, ask the witness to state their name and spell their
last name for the record. I will then indicate to counsel that they may
inquire of the witness.
b. 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.
c. In case of doubt, don’t.
d. Your clients and your witnesses should be instructed that they should
always refer to you and opposing counsel by their last names.
e. Objections and motions before the jury should be very spare.

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i. Examples of improper objections: “I object to that question, Your
Honor, because I am sure that Charlie Witness didn’t 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”.
f. Obviously these “speaking objections” would suggest an answer.
g. While bench conferences can be distracting and are discouraged, they are
preferable to statements such as those cited above. Almost all objections
should be stated in one to three words (“hearsay”, “asked & answered”,
“irrelevant”, etc.).
h. I never send the jury out of the courtroom to hear arguments of counsel. If
necessary, but only if necessary, counsel can raise an issue at a sidebar
conference. However, even those interruptions in the flow of the evidence
will only be permitted if absolutely necessary.
16. Jurors: 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.
17. Jury Instruction Conferences: 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 the evening. At the end of those sessions, we will have refined the
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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: October 5, 2018

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

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