Oldcastle Precast, Inc. v. Concrete Accessories of Georgia, Inc

Filing 118

TRIAL SETTING ORDER - All responses to pending motions in limine shall be due nolater than July 12, 2019. A Joint Exhibit List shall be submitted no later than July 12, 2019 (Exhibit List due by 7/12/2019). Jury Selection and Jury Trial set for 8/12/2019 01:30 PM in Pocatello - 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 (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No. 4:17-cv-00164-BLW
OLDCASTLE PRECAST, INC.,
Plaintiff,
v.
TRIAL SETTING ORDER
CONCRETE ACCESSORIES OF
GEORGIA, INC., AREVA FEDERAL
SERVICES LLC, and LIBERTY MUTUAL
INSURANCE COMPANY,
Defendants.
AREVA FEDERAL SERVICES LLC,
Counterclaimant/Crossclaimant,
v.
OLDCASTLE PRECAST, INC.,
CONCRETE ACCESSORIES OF
GEORGIA, INC.,
Counterdefendants,
&
LIBERTY MUTUAL INSURANCE
COMPANY,
Crossclaim defendant.
00
TRIAL SETTING ORDER - 1

Following a conference with all counsel and the Court’s staff on February 1,
2019, the Court enters the following Pre-Trial order:
1. Motions in Limine: All responses to pending motions in limine shall be due no
later than July 12, 2019.
2. Exhibits: A Joint Exhibit List shall be submitted no later than July 12, 2019.
3. Trial Schedule: Jury selection shall begin on Monday, August 12, 2019, at
1:30 p.m. The taking of evidence shall be concluded on August 23, 2019.
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 parties will be allotted 46 hours of total time to try this case. The 46
hours was computed by multiplying the trial days (9) by 5 hours, which is
the number of hours in a typical trial day. In addition, the Court anticipates
TRIAL SETTING ORDER - 2

that there will be roughly an hour after a jury is selected on Monday,
August 12, 2019 in which the Parties will give their opening statements.
b. The Court will keep track of the time each party uses, and provide reports
to counsel at the end of each trial day.
c. The clock is running on a party conducting opening statement, direct, cross,
objections that are unsuccessful, and closing argument.
d. The clock is not running during voir dire.
9. Percentage Allocation of 46 Hours to Each Party:
a. The Court will determine the percentage of time to be allocated to each
party during the pre-trial conference. If the Parties stipulate to a division of
the hours, they should inform the Court’s clerk prior to the pre-trial
conference.
10. Time Limits on Voir Dire: Each party will get 30 minutes to do their own voir
dire.
11. 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 30 minutes.
12. Trial Procedures:

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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
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 unavoidable delayed, counsel shall promptly
notify the court and opposing counsel.
13. 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.
14. 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

TRIAL SETTING ORDER - 4

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.
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.).

TRIAL SETTING ORDER - 5

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.
15. 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.
16. 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
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 4, 2019
_________________________
B. Lynn Winmill
United States District Judge

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