STANDING ORDER ON TRIAL CONDUCT
AND PROCEDURES FOR ALL TRIALS BEFORE JUDGE SEEGER

          The Court issues this Standing Order to govern all trials and proceedings.  This Standing Order is designed to ensure a fair and orderly trial for all parties.  Counsel and the parties must familiarize themselves with these procedures before trial, and must raise any questions or issues no later than the final pretrial conference if at all possible.

1.         Counsel must treat each other and all witnesses, including adverse witnesses, professionally and courteously.  Show class, and act with kindness.  Unless otherwise permitted by the Court, counsel shall refer to all witnesses over the age of 18, including their clients, as “Mr.” or “Ms.”  Or by their official title (e.g., “Captain” or “Dr.”).  The use of first names or nicknames is prohibited.  

2.         Counsel must conduct all opening statements, closing arguments, and examinations of witnesses from the podium unless otherwise allowed by the Court.  If you can’t touch the podium, you’re too far from the podium.  Counsel must remain an appropriate distance from the jury box.  Do not invade their space. 

3.         The Court will enforce the traditional rules about opening statements and closing arguments.  Remember that an opening is an opening statement, not an opening argument.  It is an introduction to the case, and a preview of the evidence, not an argument about the evidence.  In openings and closings, counsel must avoid making statements or arguments that will engender valid objections.  The Court will intervene sua sponte and not wait for objections if it observes the failure of counsel to adhere to basic legal principles and standards of civility.  For openings, counsel must show any demonstratives (including powerpoints) to opposing counsel the night before.  When making closing arguments, counsel shall be limited by the evidence presented during trial, and must not appeal to the jurors’ perceived prejudices.

4.         Only one attorney from each side may inquire of a particular witness.  That same attorney is responsible for making and responding to objections about that witness.  Counsel must obtain permission from the Court before approaching a witness.

5.         On direct or cross-examination of a witness, counsel must not (i) testify by improperly incorporating facts into their questions so as to put before the jury information that has not been received in evidence (e.g., reading into the record a document that has not been admitted into evidence); (ii) use an objection as an opportunity to argue or make a speech in the presence of the jury; or (iii) show the jury a document or anything else that has not yet been received in evidence without prior leave of Court.

6.         Throughout the trial and during closing arguments, counsel shall not (i) comment adversely on the failure of any defendant in a criminal case to testify in his or her own behalf; (ii) make statements of personal belief to the jury; (iii) make personal attacks on other counsel in the case; (iv) appeal to the self-interest of the jurors; (v) make potentially inflammatory racial, ethnic, political, or religious comments; or (vi) make any statements or suggestions inconsistent with the rulings of the Court on any issue, including rulings on motions in limine, motions to suppress, evidentiary objections, and anything else.

7.         Counsel should disclose the identity and order of trial witnesses as far in advance as possible.  At the end of each trial day, counsel must disclose the witnesses who they intend to call the next day, and in what order. 

8.         Once the trial begins, the trial will not be recessed because a witness on call is unavailable, except in extraordinary circumstances.  The Court will endeavor to accommodate out-of-town and expert witnesses if counsel alerts the Court and the other side in advance.  The party calling a witness shall arrange for the presence of that witness until cross-examination is completed, including the following trial day if necessary. The failure to have a witness present for cross-examination following direct examination is grounds to strike the testimony.

9.         Unless otherwise stipulated, examining counsel must identify or show each exhibit to opposing counsel before showing it to a witness.  Counsel must provide opposing counsel with a copy of the final proposed exhibits before trial, even if not offered into evidence, to allow the Court to consider any objections without wasting the time of the jury.  All exhibits must be marked in advance.

10.       In most cases, the defense will not be able to conduct its direct examination of a witness during plaintiff’s case in chief (and vice versa).  That said, the Court may allow it if the witness is from out of town, or is sick or elderly, or if the parties agree.  Otherwise, if plaintiff calls a witness, and the defense wants to call that witness too, the defense must call that witness a second time.

11.       Counsel must stand for all objections.  Counsel should instruct their witnesses not to answer a question while an objection is pending.  Counsel should not stand during witness examination unless to make an objection.

12.       Objections should be short and to the point.  Counsel should avoid argumentative objections.  Summarize objections by noting by number the rule of evidence (e.g., “Rule 608(b)”) or by describing the nature of the objection (e.g., “hearsay,” “prior ruling,” “foundation,” etc.).  If the Court desires further discussion or argument concerning an objection, counsel will be directed to side bar and/or the matter will be taken up at a break outside the presence of the jury.  For purposes of making a record and assisting appellate review, counsel may explain or amplify their objections on the record after the jury has been excused for a break, for lunch, or for the day.  Counsel must not make objections in a theatrical manner.

13.       Counsel are reminded that their own opinions about facts or issues in a case are irrelevant and should not be communicated to the jury (e.g., “I think” or “we believe”).

14.       As a general matter, check with the Court before asking a witness about a topic that might carry a risk of undue prejudice.  If in doubt, ask and seek preclearance.  

15.       To minimize the need for side bars, counsel are directed to “front” all anticipated issues before the trial day begins, during breaks, or at the close of the day – when the jury is not in the courtroom.  To the extent possible, any legal matters or evidentiary issues that may arise during the course of a trial and have not been the subject of a motion in limine or pretrial motion should be called to the Court’s attention and discussed between counsel no later than the night before the witness or exhibit is to be offered – and earlier if at all possible.  To avoid keeping the jury waiting while legal or evidentiary issues are discussed and resolved, the following procedure shall apply if counsel cannot reach resolution of the issue:  The proponent of the objection or evidence shall email to chambers and to opposing counsel that evening, in succinct terms, a statement of the evidentiary issue or objection and their position, with supporting legal authority.  The opposing party shall email to chambers and to opposing counsel by no later than 8:30 a.m. its contrary position with supporting legal authority.  The Court will discuss and rule during the time for preliminary matters each morning before jury is brought to the courtroom for the day’s trial proceedings. 

16.       A typical trial day will begin around 9:30 a.m.  Trial days ordinarily will end at approximately 4:45 p.m., with about an hour for a lunch break.  Trial counsel must be present by 9:00 a.m. to discuss any preliminary matters.  The Court will provide as much advance notice as possible if deviation from the ordinary schedule will be necessary.

17.       All persons at counsel table should avoid reactions, facial expressions, and other expressions, verbal or non-verbal, that might be observed by the jury.  Do not react to any witness testimony, statements of counsel, or Court rulings in a way that the jury might see or hear.

18.       Witnesses (other than parties and experts) are generally excluded from proceedings until they testify.  Counsel should instruct witnesses not to discuss court proceedings with those who have not yet testified.  Counsel must not tell witnesses who have not yet testified what other witnesses have said on the witness stand.  Witnesses are sequestered during adverse examination.  They are forbidden from discussing the case with anyone – including counsel –  during breaks or recesses unless otherwise ordered by the Court.

19.       Counsel must inform their witnesses of any applicable motion in limine rulings by the Court, and must ensure compliance.

20.       Counsel are in charge of their own exhibits.  Large exhibits may be stored in the cloakroom overnight.

21.       Cell phones must be turned off while court is in session.

22.       Tape recordings of judicial proceedings are prohibited under Local Rule 83.1.

23.       Before closing arguments, the parties must provide a hard copy of all of the admitted exhibits, so that the jury can review them during deliberations.  Also, the parties must provide an exhibit list for the admitted exhibits (only), so that the jury can have a user-friendly way of finding what they want to find.  The exhibit list must include the exhibit number, as well as a neutral description of each document.  The punchline is that the parties must make it easy for the jury to review the evidence, and find what they’re looking for.

24.       The Court reminds counsel of the need to prepare digital versions of exhibits that are compatible with the Court’s JERS system.

25.       The Court prohibits the parties and their counsel (including agents) from contacting any of the jurors after the completion of the trial without leave of Court.