In all civil jury trials before Judge Durkin, the parties shall jointly prepare a final pretrial memorandum. The final pretrial memorandum will be due one week before the final pretrial conference, which will generally be scheduled about two weeks prior to the trial date. To the extent the Court and the parties are unable to address all pretrial issues at the final pretrial conference (including issue instructions), the Court will schedule a second conference one week prior to the trial date. The Court does not require trial briefs in jury trials. Parties who wish to file a trial brief must seek leave of the Court to do so.
The parties may also file motions in limine in accordance with the guidelines set forth below.
The purpose of the final pretrial conference is to avoid surprises and to simplify the trial. Lead trial counsel must attend the conference and should be fully prepared and with authority to discuss all aspects of the case, including all previous efforts to settle the case and whether further discussions are possible. Counsel should discuss with the Court whether their clients should attend the final pretrial conference.
Judge Durkin’s courtroom (1441) is equipped with a digital evidence projection system. The Court expects trial counsel to use this system. As early as possible prior to trial (not less than four weeks), counsel should contact Alexander Zeier, the Courtroom Technology Administrator, to schedule a training session. Mr. Zeier can be reached at (312) 435-6045.
The following is the presumptive pretrial schedule. The parties should inform the Court if they require a different schedule.
Motions in Limine
3 weeks prior to trial date
Responses to Motions in Limine
2 weeks prior to trial date
Final Pretrial Memorandum
2 weeks prior to trial date
Final Pretrial Conference
1 week prior to trial date
Final Pretrial Conference follow-up (if necessary)
the day after the Final Pretrial Conference
II. Motions in Limine
The parties are directed to meet and confer on all motions in limine before filing them and determine which motions, if any, are unopposed and do not need to be filed. Unopposed motions in limine should be briefly described in the final pretrial memorandum.
Unless otherwise ordered, all motions in limine must be filed in accordance with the schedule set out above. No replies should be filed unless ordered by the Court.
Parties filing multiple motions in limine should submit their initial motions and the supporting exhibits in one document for the Court. Responses to motions in limine should also be submitted in one document.
Absent prior leave of Court, motions in limine (not including exhibits) are limited to a total of 15 pages per side (not per motion), and responses (not including exhibits) are likewise limited to a total of 15 pages per side.
Daubert motions are handled separately. Counsel should consult the section of Judge Durkin’s webpage addressing Daubert motions.
Parties should keep in mind that motions in limine are meant to provide a mechanism for the court and parties to resolve particular evidentiary issues prior to trial. A proper motion in limine “performs a gatekeeping function and permits the trial judge to eliminate from further consideration evidentiary submissions that clearly ought not be presented to the jury because they clearly would be inadmissible for any purpose.” Jonasson v. Lutheran Child and Fam. Servs., 115 F.3d 436, 440 (7th Cir. 1997). They are particularly useful in streamlining a trial so that extensive argument becomes unnecessary after a jury has been impaneled. See id. (“The prudent use of the in limine motion sharpens the focus of later trial proceedings and permits the parties to focus their preparation on those matters that will be considered by the jury.”). They also provide economies to the parties such that certain witnesses will not be called to testify. Every party is advantaged by knowing what evidence is likely admissible before trial begins so that proper jury presentation can be made. Finally, an accurate assessment of the admissible evidence may cause parties to reconsider settlement negotiation positions.
However, motions in limine should not be so granular that no rational ruling can be made outside of the context of the trial itself. See Jonasson, 115 F.3d at 440 (“Some evidentiary submissions . . . cannot be evaluated accurately or sufficiently by the trial judge in [a pretrial] environment.”). “In these instances it is necessary to defer ruling until during trial, when the trial judge can better estimate its impact on the jury.” Id.; see also Fletcher v. Conway, 1991 WL 24460, at *1 (N.D. Ill. Feb. 21, 1991) (“Careful exercise of [the court’s discretion in determining the admissibility of evidence] is usually best left to trial, when the court is in a position to evaluate the proffered evidence within context.”). To the extent potentially improper prejudicial testimony may be elicited, the attorneys as officers of the court are obligated to bring up these issues outside the presence of the jury either at side-bar or during breaks.
Moreover, the fact that a motion in limine was not filed as to a particular piece of evidence does not operate as a waiver. Counsel is always free to object to evidence at trial for all of the grounds permissible under the Federal Rules of Evidence. See Moore v. General Motors Corp., 684 F. Supp. 220, 220 (S.D. Ind. 1988) (Tinder, J.) (“A ruling on a motion in limine is not a final ruling on the admissibility of the evidence which is the subject of the motion. An order on a motion in limine has been characterized as an advisory opinion subject to change as events at trial unfold.”). Like any other evidentiary ruling, the Court’s rulings on motions in limine are based on the facts and theories of the case as the Court understands them at the time the Court makes its ruling. These rulings do not preclude any party from renewing a request for either admission or exclusion of evidence if the facts as developed at trial make reconsideration appropriate.
III. The Final Pretrial Memorandum
(1) Trial Attorneys:
A list of the attorneys trying the case, including business addresses and telephone numbers. A list of the names of all people who will be sitting at counsel table, including parties, consultants, legal and technical assistants, etc., should also be provided.
(2) Case Statement:
A concise agreed statement of the case (no more than one or two short paragraphs), including: (a) the nature of the case; (b) the claims, counterclaims and cross-claims; and (c) the defenses raised to those claims.
The Court will read this statement to the venire during voir dire, merely to inform the venire as to the general nature of the case. It will also be part of the cover letter the court provides to the venire with the juror questionnaire.
(3) Trial Length and Number of Jurors:
The estimated number of trial days, including jury selection, and the number of jurors the parties recommend be selected (subject to Rule 48(a)). The Court presumptively seats a 12-person jury, with all 12 jurors deliberating. Typically, each side will be allowed three peremptory challenges. The Court will seat an 8-person jury, with all 8 jurors deliberating, for trials of two days or less, or when otherwise appropriate.
(4) Voir Dire Questions:
To the extent possible, the Court prefers that most questions asked of potential jurors be included in a written questionnaire (of no more than two pages) as it encourages reflection and candor. Sample questions are provided below in section IV.1 addressing jury selection procedures. To propose questions that should be included in the written questionnaire distributed to the venire, as well as questions the Court should ask orally, the parties must file a joint document that includes both: (1) joint questions in the form of a questionnaire; (2) a list of questions to be asked orally; and (3) proposed questions to which one party objects, and a short basis for the objection.
(5) Witness Lists:
Separate lists for plaintiff and defendant providing the names of witnesses, including expert witnesses, divided into the following three categories: (a) witnesses who will be called to testify at trial; (b) witnesses who may be called to testify at trial; and (c) witnesses whose testimony a party will present by deposition or other prior testimony (indicating whether the presentation will be by reading a transcript or playing a video).
Deposition designations, whether disputed or undisputed, should not be submitted with the final pretrial memorandum. The parties should be prepared to discuss a schedule for such submissions at the final pretrial conference.
For each witness, provide a very concise (2 or 3 sentences maximum) description of the witness and the witness’s role in the case. For example: “George Washington is Plaintiff’s cousin. Washington witnessed the arrest of Plaintiff where Defendants allegedly used excessive force.” Or: “John Adams is Defendant’s Chief Operating Officer. Adams made promises concerning the timing of payments under the contract at issue in the case.”
The Court will read the names of witnesses on the lists during jury selection.
(6) Exhibit Lists:
A list by each side of all exhibits the party will definitely use at trial (including demonstratives, summaries or other specially prepared exhibits), which includes the following: (a) the exhibit number for each document; (b) the date of the document; (c) a brief description of the document; (d) whether there is an objection to admission of the document and, if so, a concise statement of the basis for the objection (e.g., Rule 402—relevance; Rule 403—undue prejudice or confusion); and (e) a concise statement of the asserted basis of admissibility, if there is an objection.
There is no need to list every conceivable exhibit that can possibly be used. The parties should submit a list of trial exhibits they definitely intend to introduce. Exhibits not likely to be used need not be listed. If, due to unforeseen circumstances during trial a party wishes to introduce an exhibit not previously listed, notice should be given as soon as possible to the opposing side and to the Court so that any objections can be discussed. Absent abuse of this process, an exhibit will not be deemed inadmissible simply because it was not included on the original exhibit list, provided the exhibit/document was earlier produced to the opposing side during discovery.
As part of the final pretrial memorandum, the parties must provide the Court with two copies of an exhibit binder containing the objected-to exhibits offered by both sides. If the same objection applies to multiple exhibits, only representative exhibits need be provided. If the representative exhibits from both sides require more than a single binder, the parties must contact the Court’s courtroom deputy, Sandy Newland, to explain why additional binders are required.
Two copies of the binder containing both sides’ final exhibits will be required for trial. Each binder should also include a summary checklist page for the Court to track admission of exhibits during trial. Again if more than a single binder is needed, the Court’s courtroom deputy should be contacted. The Court wants to avoid the needless copying of hundreds or thousands of documents in multiple boxes where electronic media may suffice.
(7) Jury Instructions:
The parties are instructed to meet and attempt to agree on jury instructions and to include proposed instructions in the final pretrial memorandum. The parties should avoid the filing of identical instructions. Joint instructions should be filed when both parties agree to them. The Court uses the 7th Circuit Pattern Jury Instructions where applicable, bearing in mind that statutory and binding case law govern over the pattern instructions.
See Pattern Civil Jury Instructions
If the parties wish to modify a 7th Circuit Pattern Jury Instruction, the party proposing the modification must submit a comparison document to the Court showing the modification to the pattern instruction. The parties should concentrate their efforts on the substantive jury instructions related to the merits.
Each proposed instruction must indicate the proponent of the instruction and whether the instruction is agreed or disputed. The bottom of each instruction must identify the legal authority supporting the instruction. If an instruction is disputed, the grounds for the objection (and any proposed modification or alternate instruction) must be concisely stated on the same page immediately following the disputed instruction. The party proposing the instruction may then state concisely the reasons supporting the instruction as proposed. Once the instructions are finalized, one of the parties should prepare a table of contents.
It is now the Court’s practice to provide to the jury and read all jury instructions to the jury (including issue instructions) and display the proposed verdict form before opening statements. This requires that instructions initially be drafted using tenses that reflect the fact that the jury has not yet heard any evidence or argument. The parties, however, will be free to propose amendments to the final jury instructions and verdict form based on the evidence as it is actually presented at trial. The Court will also read the final instructions prior to closing arguments. Jury instructions may be used and electronically projected during closing arguments.
IV. Additional Pretrial Information
(1) Jury Selection:
In accordance with the recommendation of the Seventh Circuit Bar Association's American Jury Project Commission, the Court presumptively seats twelve person juries in civil trials. However, the Court will seat an 8-person jury for trials of two days or less, or when otherwise appropriate.
On the morning of jury selection, prior to entering the courtroom, the venire will be given a written questionnaire with questions proposed by the parties and approved by the Court. Sample questionnaires are included in the attached documents below. These are examples only, and will require revision for each particular case. Although some of these documents include more than two pages, the Court generally restricts questionnaires to a maximum of two pages, and parties submissions should not include more than two pages of questions. The parties will be given copies of the jurors' written answers. The parties will also be given a copy of the list of potential jurors that is generated by the Clerk's Office.
Sample Civil Questionnaire 1; Sample Civil Questionnaire 2
The entire venire will then enter the courtroom and be sworn. The first twelve prospective jurors from the list will be called and seated in the jury box. The Court will then ask the jurors the question the parties and the Court determined at the final pretrial conference should be asked orally. Jurors will be given the opportunity to answer sensitive questions at sidebar if they wish.
Once all questions have been asked, the Court will consult with the parties at sidebar as to additional follow-up questions, and will complete questioning. The Court will then go to sidebar to hear challenges for cause, and the Court will rule on those challenges.
The parties will then submit peremptory challenges in writing simultaneously. Each side is allowed three peremptory challenges, per 28 U.S.C. 1870, unless otherwise requested and approved by the Court. If the parties challenge the same juror, only one side will be charged for that challenge, beginning first with the plaintiff, and alternating between the parties for all later joint challenges. Once peremptory challenges have been submitted, the challenged prospective jurors will be excused. The remaining jurors will constitute part of the jury and cannot be stricken with later challenges. (No back-strikes will be allowed.) The remaining jurors will be asked to leave the jury box and sit in a separate area of the gallery.
A new group of twelve potential jurors will then be called in the order from the list to the jury box. The selection process will be repeated until a jury of twelve has been seated. There are no alternate jurors. All jurors seated in civil trials will be allowed to deliberate.
The same procedures will be followed in criminal cases, except Rules 23 and 24 of the Federal Rules of Criminal Procedures will be followed as to the number of jurors, the number of challenges, and alternate jurors.
(2) Instructions for Trial Counsel: Please Read Carefully
Your compliance with the following requests will be greatly appreciated:
(i) Please be on time for each court session. Trial engagements take precedence over any other business. If you have matters in other courtrooms, arrange in advance to have them continued or have a colleague handle them for you.
(ii) Court time may not be used for marking exhibits. This must be done in advance of the court session.
(iii) Please stand whenever you address the court. This includes the making of objections.
(iv) Please speak into the microphone whenever speaking on the record in court. A portable microphone is available is counsel wishes to move away from the stationary microphones.
(v) In your opening statement to the jury, do not argue the case. Confine yourself to a concise summary of the important facts.
(vi) Please stand when you question witnesses. (Counsel with physical disabilities will be excused from this requirement.)
(vii) If on direct examination you intend to question a witness about a group of documents, avoid delay by having all the documents given to the witness when you start the examination.
(viii) When you object in the presence of the jury, make your objection short and to the point. Do not argue the objection in the presence of the jury, and do not argue with the ruling of the court in the presence of the jury. Such matters may be raised at the first recess and will not be waived by waiting until the recess.
(ix) Do not ask the court in the presence of the jury to declare that a witness is qualified as an expert or qualified to express an expert opinion.
(xii) It is not necessary to request leave of court to approach a witness to show the witness an exhibit.
(xiii) Do not ask for a recess before cross-examination. If the direct examination should end at about the time the court would recess anyway, e.g., lunch time, a recess will be taken. Otherwise, be prepared to commence cross-examination immediately upon conclusion of the direct.
(xiv) Upon completion of a witness’s testimony in civil trials, jurors are permitted to submit written questions for the witness in accordance with procedures to be discussed at the Final Pretrial Conference. Such questioning by the jurors will also be permitted in criminal trials if all parties agree. The government and defense counsel should discuss this issue with the Court at the Final Pre-trial Conference.
(xv) The Court permits interim statements if appropriate due to the length of the trial.
(xvi) Counsel are not permitted to contact jurors after trial without permission of the Court.
Thank you in advance for your cooperation.
(3) Final Pretrial Conference Topics
The following is a list of topics Judge Durkin will address during the final pre-trial conference. Counsel need only be prepared to discuss the topics that are also referenced in the final pretrial order. The remaining topics in the list below reference particular practices Judge Durkin will explain during the final pre-trial conference.
- voir dire
- written juror questionnaire
- jury lists – alphabetical and random agreed
- statement of case – short enough to fit on letter to jurors
- motions in limine – agreed matters and preparation of order on rulings
- exhibits: (i) pre-mark all; (ii) stipulate to as many as possible; (iii) seek admission outside jury’s presence; (iv) must be admitted before displayed on screen
- demonstratives and timelines
- schedule for submission of disputed deposition designations
- trial day
- trial technology – make sure to test it outside the presence of the jury
- preliminary instructions and issue instructions before opening
- instructions before closing (can project on screen)
- interim statements
- note pads
- jury binders
- jury questions
- moving around courtroom
- can always approach witness without permission
- no speaking objections, unless requested; just – irrelevant, asked and answered, hearsay
- talking to jury after verdict