Norton et al v. Assured Performance Network

Filing 36

MEMORANDUM DECISION AND ORDER - Witness Lists, Exhibit Lists, Exhibits, Proposed Voir Dire, Proposed Jury Instructions, Trial Briefs and Motions in Limine due by 5/3/2016. The parties agree that they shall notify the Court on or before 4/15/2016 that the case has either settled or will definitely go to trial. Jury Trial set for 5/31/2016 01:30 PM in Pocatello - District Courtroom before Judge B. Lynn Winmill. Telephonic Pretrial Conference set for 5/17/2016 04:00 PM in Boise Chambers 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)(Emailed to krb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MICHAEL NORTON and STEVEN
DELACUESTA,
Case No. 4:14-CV-486-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
ASSURED PERFORMANCE NETWORK,
dba ASSURED PERFORMANCE
NETWORK, INC.,
Defendants.

On February 10, 2016, the Court held a status conference for the purpose of setting a trial
date in this matter. Based on that conference, the Court issues the following order:
NOW THEREFORE IT IS HEREBY ORDERED that the following deadlines and
procedures shall govern the remainder of this litigation:
1.

Trial Date: A 2-day trial shall be set for May 31, 2016, at 1:30 p.m. in the Federal
Courthouse in Pocatello, Idaho. Beginning on day two, trial shall begin at 8:30 a.m. and
end at 2:30 p.m., with two fifteen minute breaks.

2.

Pretrial Date: A telephonic pretrial conference shall be held on May 17, 2016, at 4:00
p.m. Counsel for Plaintiff shall initiate the call. The Court can be reached at (208)
334-9145. The purpose of the conference is to discuss and resolve (1) the legal issues
remaining in the case; (2) evidentiary issues; (3) trial logistics; and (4) any other matter
pertaining to the trial. Not less than twenty days prior to the date of the pretrial

Order Setting Trial and Pretrial Conference - 1

conference, the parties shall communicate and reach agreement on as many items as
possible. The parties shall be prepared to discuss with the Court those items over which
counsel disagrees.
3.

Witness Lists: The parties shall exchange witness lists on or before May 3, 2016. The
witness lists shall contain the material listed in F.R.C.P. 26(a)(3)(A)&(B), and shall
include a full summary, not just the subject, of the witnesses’ expected testimony.

4.

Exhibit Lists, Exhibits, Proposed Voir Dire, Proposed Jury Instructions, Trial Briefs and
Motions in Limine: All exhibit lists, proposed voir dire, proposed jury instructions, trial
briefs, and motions in limine shall be filed with the Court on or before May 3, 2016. On
the same date the parties shall exchange all trial exhibits, but shall not provide them to the
Court until the day of trial. Counsel shall only provide the Court with a set of original
pre-marked exhibits. Because of the use of electronic evidence presentation systems, it
is unnecessary to provide any copies. Counsel may wish to have available in the
courtroom a copy of any exhibits which the Court may find difficult to review through the
evidence presentation system. The exhibit lists shall follow the guidelines set out in
Local Rule 16.3(f) to the extent it is not inconsistent with this Order. The exhibit lists
shall be prepared on form provided by the Deputy Clerk, with sufficient copies for the
Judge, the Deputy Clerk, and the Law Clerk. Exhibit numbers 1 through 999 shall be
reserved for joint exhibits; exhibit numbers 1000 through 1999 shall be reserved for
plaintiff’s exhibits; exhibit numbers 2000 through 2999 shall be reserved for the first
defendant listed on the caption; exhibit numbers 3000 through 3999 shall be reserved for
the second defendant listed on the caption; and so on. Counsel shall review their

Order Setting Trial and Pretrial Conference - 2

exhibits, determine any duplication, and jointly mark and stipulate to the admission of
those exhibits that both sides intend to offer and rely upon. The proposed jury
instructions shall follow the guidelines set out in Local Rule 51.to the extent it is not
inconsistent with this Order. Additionally, counsel shall provide a clean copy of the Jury
Instructions to the Court in Word format and emailed to [e-mail].
5.

Settlement/Mediation Deadline: The parties agree that they shall notify the Court on or
before April 15, 2016 that the case has either settled or will definitely go to trial.

6.

Trial Procedures:
a.

The Court will generally control voir dire, and counsel will be limited to 20-30
minutes. 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
between 8:30 a.m. and 2:30 p.m., except for two standard fifteen minute morning
and afternoon recesses.

d.

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.
Almost all objections should be stated in one to three words (“hearsay”, “asked &
answered”, “irrelevant”, etc.). If counsel have matters that need to be resolved

Order Setting Trial and Pretrial Conference - 3

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.
i.

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 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

Order Setting Trial and Pretrial Conference - 4

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 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: February 10, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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