Judge Judith Atherton

QUESTIONNAIRE FOR JUDGE’S BENCHBOOK
Third District Court

1. Scheduling Conferences

Q: Are scheduling conferences needed or used in your court? If so, are they conducted in person or by telephone?

A: I conduct scheduling conferences if necessary, and will conduct them either in court or on the telephone.

Q: What are your preferences regarding Case Management Orders/Scheduling Orders? Do you require that specific things be included in such orders?

A: Just follow Rule 26.

2. Motions Practice

Q: Do you appreciate courtesy copies of briefs being delivered to your chambers prior to hearing on a motion? If so, how early do you want them?

A: I do appreciate courtesy copies of briefs, and like them delivered 14 days in advance of the hearing.

Q: Do you schedule hearings on motions automatically upon receiving notices to submit, or do you prefer or require that counsel call to schedule hearings?

A: I will schedule hearings if I deem them to be appropriate.

Q: Under what circumstances do you decline to grant a request for oral argument?

A: I decline requests for oral argument when the issue is not dispositive of the outcome of the case.

Q: What is your policy on allowing overlength memoranda?

A: I discourage the filing of overlength memoranda, and typically deny requests for leave to file them.

Q: What separates a useful brief from one that is unhelpful?

A: Brevity is the key to a useful brief. The best briefs contain a concise statement of the issues and the law.

Q: Do you prefer that counsel provide copies of the relevant cases prior to a hearing?

A: I appreciate receiving copies of relevant cases from outside of the jurisdiction.

Q: What makes an effective motions argument?

A: An effective motions argument is concise and very focused.

3. Final Pretrial Conference

Q: In your view, what is the purpose of a final pretrial conference?

A: The purpose of a final pretrial conference is to go over the trial-specific issues (e.g., motions in limine, jury instructions, and evidence presentation).

Q: What topics or issues should counsel come prepared to discuss?

A: Counsel should come prepared to discuss exhibits, witnesses, and procedural issues.

Q: What steps do you take, if any, at a final pretrial conference to encourage settlement of the case?

A: In civil cases, I leave settlement to the parties. In criminal cases, I leave attorneys the option of continuing negotiations at the pretrial conference.

Q: Do you require clients to be present at final pretrial conferences?

A: Yes.

4. Jury Trial Practice

Jury Selection:

Q: How is voir dire conducted in your courtroom?

A: I do it.

Q: Do you allow counsel to participate in voir dire? If so, to what extent?

A: I do not allow counsel to participate in voir dire.

Q: What is your due date for requested voir dire questions?

A: In civil cases, I like to receive them 7 days before trial. In criminal cases, the day before trial or even the morning of trial is sufficient.

Q: Do you allow or encourage the use of jury questionnaires?

A: I permit questionnaires and allow some flexibility in their use. If the case is not complex or high-profile I encourage submitting questions for oral voir dire.

Requested Instructions:

Q: When do you require requested instructions to be submitted?

A: I require a complete stipulated non-repetitive set of jury instructions by the morning of trial, with disputed sections identified.

Q: What form do you prefer requested instructions to take (e.g., do you prefer instructions accompanied by supporting cases, etc.)? Is a citation to MUJI sufficient legal authority?

A: Instructions do not need to be accompanied by supporting cases. A citation to MUJI is sufficient.

Q: Do you have a set of stock jury instructions that you use?

A: Yes, in criminal cases.

Q: Do you prefer to receive an electronic copy of requested instructions?

A: I would welcome electronic copies of requested instructions.

Trial Procedures:

Q: What is your preferred trial schedule (e.g., 9 to 5 with an hour for lunch, 8 to 2 with no lunch, etc.)?

A: 9 to 5, with lunch recesses.

Q: What are your preferences with respect to motions in limine and other trial related motions?

A: I prefer trial motions be filed 14 days in advance of the trial.

Q: What are your preferences and/or procedures related to witness scheduling?

A: I am flexible, but prefer to have witnesses present well ahead of the time they are scheduled. Trials usually tend to go more quickly than planned.

Q: What are your preferences with respect to trial exhibits?

A: I prefer exhibits premarked with a list of exhibits and their numbers.

5. Bench Trial Practice

Q: What are the major differences, in your courtroom, between bench trials and jury trials?

A: It is much easier (and faster) to get a bench trial date. I am much more flexible regarding evidentiary issues in a bench trial.

Q: Do you appreciate or require proposed findings of fact and conclusions of law from counsel?

A: I appreciate receiving proposed findings of fact and conclusions of law, but do not require it.

Q: Do you appreciate or require trial briefs from counsel?

A: I appreciate receiving trial briefs, but do not require it.

6. Thoughts on Effective Advocacy

Q: What makes an effective advocate in jury arguments?

A: Focus and brevity. Cases are often won or lost in closing arguments.

Q: What are the most common mistakes made in argument?

A: Overly-lengthy argument bores the jury and loses a jury’s attention. A clear statement of the attorney’s case is much more effective.

Q: What are some techniques that do, or do not, work effectively in the examination of witnesses?

A: Focused, non-repetitive (but thorough) questions are the most effective. Cross-examination ought to be brief, and re-direct is not always necessary.

Q: Do you find the use of computer-assisted presentations (e.g., PowerPoint) effective and/or useful?

A: Technology can be a good presentation aid.

7. Criminal Matters

Q: How do you handle requests for continuance on pretrials, arraignments or roll calls?

A: I handle such requests with flexibility, up to a point. I weigh, among other things, consideration of a defendant’s custody status and the victim’s situation, and take into account prior continuances.

Q: When may the issue of bail best be addressed in your courtroom?

A: Bail is best addressed when previously set for hearing. Both sides need to be able to prepare adequately.

Q: Are private pre-sentence evaluations useful or encouraged?

A: No.

Q: Do you have any standard sentences the bar should be advised about, i.e., DUI sentencings, acceptance of alcohol-related reckless?

A: I follow the statutory requirements for DUIs and always order supervised probation, even on a first offense. I accept alcohol-related reckless driving dispositions in most circumstances.

Q: How should counsel on busy law and motion calendar handle calling a case?

A: First come, first served. Attorneys should recognize who’s ahead of them. I do not call through the calendar.

8. Special Issues for Domestic Cases

Q: Do you have a policy on child interviews with respect to custody?

A: I handle these issues on a case by case basis.

9. Discovery Practices

Q: What are your thoughts on imposing sanctions for discovery abuses?

A: I think requests for sanctions are overused by attorneys and I am unlikely to order sanctions in most circumstances.

Q: Are you generally available to solve problems that arise during a deposition?

A: No.

10. Thoughts on Courtroom Protocol

Q: Is lack of civility ever a problem in your courtroom? If so, do you take steps to improve civility in your courtroom?

A: No.

Q: Do you impose any limitations on courtroom movement (approaching witnesses, podium, etc.)?

A: I prefer formality in trials with attorneys questioning from the podium, and requesting to approach the witness or jury.

11. Other Miscellaneous Issues

Q: What are your opinions regarding courtroom dress?

A: Err on the side of formality.

Q: Do you allow children in your courtroom?

A: Yes, if they are quiet.

Q: Do you allow cell phones in your courtroom?

A: No.

12. Clerk’s Comments

Q: The name and phone number of my clerk(s) is:

A: Lori Palmer. 238-7326
Melanie Blair. 238-7346