Cabassa v. Oshier et al

Filing 131

TRIAL ORDER: Jury Trial set for 5/24/2016 09:00 AM in Albany before Magistrate Judge Christian F. Hummel. Deadlines set herein. Signed by Magistrate Judge Christian F. Hummel on 2/22/16. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Samuel Cabassa (84-A-0364),
Plaintiff
-v-

Civ. No. 9:11-CV-1237
(CFH)

John Kilburn,
Defendants.

APPEARANCES:
Carter, Conboy Law Firm
Attorney for Plaintiff
20 Corporate Woods Blvd.
Albany, NY 12211

OF COUNSEL:
William C. Firth, Esq.

New York State Attorney General
Attorney for Defendant
The Capitol
Albany, NY 12224

Denise Buckley, Esq.

CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
TRIAL ORDER
Since all relevant Uniform Pretrial Scheduling Order deadlines have expired in the above
captioned case, the case is hereby designated “trial ready.” The attorneys and parties in this
action shall appear at Courtroom No. 3, 445 Broadway, Albany, New York, Fourth Floor, for
trial beginning promptly at 9:00 a.m. on Tuesday, May 24th , 2016.
Pretrial Submissions
Pursuant to the terms of this Trial Order, all pretrial submissions shall be electronically
filed and served no later than May 10th , 2016. To the extent that the requirements of this Trial
Order and Attachments are inconsistent with any prior Uniform Pretrial Scheduling Order, this

Trial Order and Attachments control. The parties are advised that, should this action be
postponed, settled, or otherwise disposed of in advance of the actual trial, in accordance with
Local Rule 47.3, except upon good cause shown, “all juror costs, including marshal’s fees,
mileage and per diem, shall be assessed against the parties and/or their attorneys as the Court
directs, unless the parties or their attorneys notify the Court and the Clerk’s office at least
one full business day prior to the day on which the action is scheduled for trial, so that the
Clerk has time to advise the jurors that it shall not be necessary for them to attend.”
N.D.N.Y.L.R. 47.3 (emphasis added).
Unless otherwise noted, all parties shall electronically file and serve all pretrial
submissions in accordance with General Order 22, ¶ 5. Furthermore, a courtesy hard copy
of all pretrial submissions shall be sent directly to Judge Hummel’s Chambers.
The following pretrial submissions shall be filed in accordance with this Order:
A.

Joint Pretrial Stipulation
(1) No later than May 10th , 2016, a joint pretrial stipulation shall be subscribed by
counsel for all parties and shall contain:
(a)

The basis for federal jurisdiction;

(b)

A list of all Exhibits which can be stipulated into evidence or which will
be offered without objection as to foundation; and

(c)

Relevant (i) facts not in dispute; (ii) facts in dispute; and (iii) issues of law
to be considered and applied by the Court.

The Court will only accept one stipulation, which must be signed by the attorneys for all
parties.
B.

Court Ordered Voir Dire
(1) See Attachment # 1

C.

Proposed Voir Dire
(1) No later than May 10th , 2016, each party shall submit a numbered list of questions
which the Court, in the exercise of discretion, may use during jury selection.
-2-

D.

Witnesses
(1) No later than May 10th , 2016, counsel shall file a witness list containing the
following information regarding the witnesses that may be called to testify at trial other
than solely for impeachment purposes:
(a)

The name and, if not previously provided, the address (city only) and
telephone number of each witness, separately identifying those whom the
party expects to present and those whom the party may call if the need
arises, as well as a brief summary of the testimony to be offered by each
witness.

Note:

Personal Privacy Protections may apply to disclosure of this

information. See N.D.N.Y.L.R. 8.1; General Order 22, ¶¶ 11.2 & 12.2. In
such instances, the parties are directed to notify Chambers and request
permission to file such pretrial submission traditionally.
(b)

The designation of those witnesses whose testimony is expected to be
presented by means of a deposition (including video-taped deposition),
specifically identifying the pertinent portions of the deposition testimony
to be offered.

(2) The unavailability of any witness, expert, or otherwise, will not be grounds for a
continuance. In order to avoid the possibility of going forward with the trial without the
testimony of an unavailable witness, counsel, where appropriate, shall preserve same
before the trial date by written or video-taped deposition for possible use at trial. See
Attachment # 2 (Instruction Sheet for the use of Video-Taped Depositions).
E.

Exhibits
(1) All Exhibits shall be marked for identification in the manner prescribed hereinafter.
(2) The Exhibits shall have been inspected by the opposing party and copied at their
expense (unless waived). All documents and/or papers intended as Exhibits or to be
used during the course of trial, including but not limited to, documents, photographs,
-3-

charts, diagrams, etc., shall be assembled in TWO BINDERS with each document
properly marked at the lower right corner for identification purposes as directed below.
One binder will be the original for the Jury and the second binder will be for the Court.
A complete set of copies of the Exhibits shall be submitted to Judge Hummel’s
Chambers no later than May 10th , 2016.
(3) In voluminous cases, consult with Judge Hummel’s Courtroom Deputy Clerk for the
proper procedure to follow.
(4) During the course of trial, the Courtroom Deputy Clerk shall take charge of Exhibits
which are received into evidence. At the conclusion of the trial, the Courtroom Deputy
Clerk will immediately return all of the Exhibits to the proper parties. It is the
responsibility of the parties to maintain the Exhibits and to produce the Exhibits for any
appeal.
(5) No later than May 10th , 2016, counsel shall electronically file and serve an Exhibit
List. The Exhibits shall be listed on the form prescribed by the Court. See Attachment
# 3. Counsel are to supply all the requested information with the exception of the two
“Date” boxes, which should remain blank.
(6) Counsel shall fill in the appropriate markers leaving the “Date Entered” and “Deputy
Clerk” lines blank. All Exhibits shall be assigned numbers by using a prefix of “P” for
Plaintiff, “D” for Defendant, and “G” for Government (U.S. Attorney).

Plaintiff’s Exhibits should be denoted as: P-1, P-2, P-3, etc. Defendant’s Exhibits should
be denoted as: D-1, D-2, D-3, etc. Government’s Exhibits should be denoted as: G-1,
G-2, G-3, etc. In cases involving multiple Defendants, the Exhibits shall be denoted with
the initial of the last name of the Defendant and its numerical identification number.

Stickers shall be affixed whenever possible to the lower right-hand corner of the Exhibit.
If the Exhibit marker is going to cover any information on the Exhibit, then affix the
-4-

marker to the reverse side of the Exhibit.
F.

Trial Brief
(1) No later than May 10th , 2016, counsel shall electronically file and serve a Trial
Brief containing a brief overview of the parties’ claims as well as argument and citations
on any and all disputed issues of law, citing the applicable rules of evidence and case
law. Trial Briefs should also identify any evidentiary issues that are expected to arise.
However, requests for exclusions or limits on presented evidence shall be filed by
separate motion as noted below.

G.

Requests to Charge and Proposed Special Verdict Form
(1) No later than May 10th , 2016, counsel shall electronically file and serve a Request
to Charge and a Proposed Verdict Questionnaire. The Request to Charge need only
include instructions that are specific to the law in this case regarding liability, damages,
and any unusual issues. The Court has the usual boilerplate charge.

H.

Motions In Limine
(1) No later than May 10th , 2016, counsel shall electronically file and serve any
motions in limine, citing the applicable rules of evidence and case law. Opposing
counsel shall file any response to a motion in limine no later than May 17th , 2016.
MOTIONS IN LIMINE MAY NOT OTHERWISE BE FILED WITHOUT LEAVE
OF THE COURT. A motion in limine shall be filed apart from the other pretrial
submissions and should not be included in a party’s trial brief.

I.

Depositions
(1) No later than May 10th , 2016, counsel shall electronically file all non-video taped
depositions to be used at trial. Counsel shall traditionally file all video-taped depositions
to be used at trial. To the extent possible, objections are to be resolved between the
parties. Areas of unresolved disagreement shall be presented to the Court for ruling at
the beginning of trial. See Attachment # 2.

J.

Courtroom Technology
-5-

(1) If the parties intend to utilize the courtroom equipment at the time of trial, counsel
are directed to contact the Courtroom Deputy Clerk prior to the trial date to make
arrangements for training and testing such equipment. Please keep in mind that the
Court does not provide a person to run the equipment during trial. If needed, the Court
can make the following equipment available: VHS/DVD combination unit, visual
evidence presenter, and interpreter/hearing impaired headsets.
(2) All non-proprietary DVDs (i.e., .avi, .mp3, .mp4, and .wmv) should be compatible
with the Court’s DVD player and prior to the trial date, counsel must confirm such
compatibility for use at the time of trial. If any portion of the DVD/VHS tape should be
redacted, it is the responsibility of counsel to provide a redacted copy for use at trial.
(3) Additional courtroom technology information may be obtained on the Court’s
webpage: http://www.nynd.uscourts.gov/courtroom-technology.
K.

Pretrial Conference
A Pretrial Conference may be held to address all unresolved issues and objections.
Judge Hummel’s Courtroom Deputy Clerk will notify the parties of the Pretrial
Conference.

SO ORDERED
Date: February 22, 2016
Albany, New York

-6-

ATTACHMENT # 1
COURT ORDERED VOIR DIRE
TO BE USED BY THE JUDGE AT TRIAL
CASE TITLE:
CIVIL ACTION NO.:
ASSIGNED JUDGE OR MAGISTRATE JUDGE:
Each attorney is required to submit the following information on behalf of his/her client
for use by the Court during Voir Dire and must be filed with the Court fourteen calendar
days in advance of the trial ready date.
NAMES AND ADDRESSES OF ALL PARTIES TO THE LAWSUIT:

(use additional page if necessary)
YOUR NAME, FIRM NAME, ADDRESS AND THE NAME OF ANY PARTNER OR
ASSOCIATE WHO MAY BE AT COUNSEL TABLE DURING THE COURSE OF
THE TRIAL:

(use additional page if necessary)
SET FORTH THE DATE OF THE OCCURRENCE, THE PLACE OF THE
OCCURRENCE AND A BRIEF STATEMENT OF THE EVENTS CENTRAL TO THE
LITIGATION:

(use additional page if necessary)
-1-

SET FORTH THE NAMES AND ADDRESSES OF ALL LAY WITNESSES TO BE
CALLED:

(use additional page if necessary)
SET FORTH THE NAMES AND ADDRESSES OF ALL EXPERT WITNESSES TO
BE CALLED GIVING A BRIEF DESCRIPTION OF THEIR AREAS OF EXPERTISE:

(use additional page if necessary)

-2-

SET FORTH A BRIEF DESCRIPTION OF EACH AND EVERY CAUSE OF ACTION
IN THE COMPLAINT:

(use additional page if necessary)
SET FORTH A BRIEF DESCRIPTION OF EACH AND EVERY AFFIRMATIVE
DEFENSE ASSERTED AS WELL AS A STATEMENT ADDRESSING ANY
COUNTERCLAIMS RAISED IN THE ANSWER:

(use additional page if necessary)

-------------------------------PLEASE TAKE NOTICE that any delay in jury selection occasioned by the failure to
provide this information will be explained to the jury as to the extent of the delay and
the attorney causing same and if the delay causes a one (1) day or more postponement
of this trial, appropriate monetary sanctions will be imposed by the Court.

Submitted by:
Date:

-3-

ATTACHMENT # 2
INSTRUCTIONS FOR THE USE OF VIDEO-TAPED DEPOSITIONS
COUNSEL ARE TO VIEW ALL VIDEOTAPES WHICH MAY BE OFFERED INTO
EVIDENCE AT THE TIME OF TRIAL. ALL VIDEO-TAPED DEPOSITIONS TO BE USED
AT TRIAL SHALL BE FILED WITH THE CLERK’S OFFICE AT LEAST FOURTEEN
CALENDAR DAYS BEFORE THE TRIAL DATE. NOT EARLIER THAN TWO WEEKS
AND NOT LESS THAN ONE WEEK PRIOR TO THE TRIAL DATE, EACH PARTY
SHALL INDICATE TO THE OTHER PARTY THE PORTION OF THE DEPOSITION TO
BE OFFERED. TO THE EXTENT POSSIBLE, OBJECTIONS ARE TO BE RESOLVED
BETWEEN THE PARTIES.
COUNSEL SHALL SUBMIT ALL OBJECTIONS IN
WRITING TO THE COURT FOR RULING ON THE DATE OF TRIAL.

THE CLERKS OFFICE HAS AVAILABLE A VHS FORMAT VIDEO CASSETTE PLAYER
AND TELEVISION FOR USE AT TRIAL. PLEASE BE ADVISED THAT YOU MUST
PROVIDE A PERSON TO RUN THE EQUIPMENT DURING THE COURSE OF THE
TRIAL.

ELECTRONIC VISUAL EVIDENCE PRESENTER
IN ADDITION TO THE VIDEO EQUIPMENT NOTED ABOVE, THE COURT HAS
AVAILABLE A VISUAL EVIDENCE PRESENTER WHICH WILL ALLOW COUNSEL TO
DISPLAY PHOTOS (NEGATIVES OR POSITIVES), DOCUMENTS, X-RAYS, AND 3-D
OBJECTS, WITHOUT WIRES, ON TELEVISIONS PLACED THROUGHOUT THE
COURTROOM. THIS EQUIPMENT IS AVAILABLE AT THE COURTHOUSES IN
ALBANY, SYRACUSE, UTICA AND BINGHAMTON. USE OF THE VISUAL
PRESENTER MAY BE REQUIRED BY THE TRIAL JUDGE PRESIDING OVER YOUR
CASE. FOR FURTHER INFORMATION ON THE USE OF THIS EQUIPMENT, PLEASE
CONTACT THE COURTROOM DEPUTY CLERK FOR THE ASSIGNED TRIAL JUDGE.

-1-

Page 1 of ___

ATTACHMENT # 3
United States District Court
For The Northern District Of New York
Case No. ____________________
Date:
Presiding Judge: _____________________
( ) Plaintiff
Exhibit
No.

( ) Defendant
Date Marked for
Identification

Date Admitted
Into Evidence

( ) Court

Remarks

Exhibits Returned To Counsel (Date):______________
Signature:_________________________

-1-

Witness

Exhibit Description

Page __ of __

Exhibit
No.

Date Marked for
Identification

Date Admitted
Into Evidence

Remarks

Exhibits Returned To Counsel (Date):______________
Signature:_________________________

-2-

Witness

Exhibit Description

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CASE NO. _______________
PLAINTIFF EXHIBIT NO. __________
DATE ENTERED __________

CASE NO. _______________
DEFENDANT EXHIBIT NO. __________
DATE ENTERED __________

LAWRENCE K. BAERMAN, CLERK
BY: ______________________________
DEPUTY CLERK

LAWRENCE K. BAERMAN, CLERK
BY: ______________________________
DEPUTY CLERK

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CASE NO. _______________
PLAINTIFF EXHIBIT NO. __________
DATE ENTERED __________

CASE NO. _______________
DEFENDANT EXHIBIT NO. __________
DATE ENTERED __________

LAWRENCE K. BAERMAN, CLERK
BY: ______________________________
DEPUTY CLERK

LAWRENCE K. BAERMAN, CLERK
BY: ______________________________
DEPUTY CLERK

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CASE NO. _______________
PLAINTIFF EXHIBIT NO. __________
DATE ENTERED __________

CASE NO. _______________
DEFENDANT EXHIBIT NO. __________
DATE ENTERED __________

LAWRENCE K. BAERMAN, CLERK
BY: ______________________________
DEPUTY CLERK

LAWRENCE K. BAERMAN, CLERK
BY: ______________________________
DEPUTY CLERK

-3-