Interview with Judge Joseph Fratto, Jr.

FJC: Judge Fratto, I thank you for taking your time to speak with us. I would like to start off first by starting off in the procedural start of the case. Nowadays in terms of the judge’s involvement, that is the initial pretrial, they call it the Case Management Order which has started since the past year and in theory it is what lawyers are supposed to be doing, except on smaller collection cases, is getting together meeting, having an attorneys’ planning conference and then submitting a proposed case management order to the court for signature. Some judges have particular preferences on those, some say “no, whatever the lawyers want to put in there is fine with me” some say “I would like you to put in how you are going to handle mediation.” Do you have any particular preferences one way or the other?

Judge Fratto: No, the reason that I don’t have a particular preference is because my approach is that I will only become involved if there is a breakdown in the cooperation with the attorneys to get these matters done. That is what I have mostly observed with these scheduling orders and pretrial orders, are that, to some extent, lessor or greater, they place the (inaudible) because of circumstances the attorney (inaudible) really various different things and then by the time you come to the end of that process the dates have changed and so forth. And that is all fine by me, I think that I should only become involved when it is brought to my attention when you no longer can cooperate to put this together for whatever reason. Or, we are through, and here is a certification of readiness.

FJC: And typically that is how you would like it ideally, you would first really need to know about the case when you get a certificate of readiness for trial, I guess?

Judge Fratto: Know about the case in what sense?

FJC: In the sense of scheduling issues, discovery issues, that sort thing. Ideally, that could be worked out by the attorneys and it first becomes something that the judge has to deal with on dispositive motions or a certification of readiness for trial.

Judge Fratto: If there is a motion in front of me then I need to know what it is, of course, what it is all about. Here is what I am saying to you, I would prefer that. I think that the reason for these changes was that they needed to be more focused, but I don’t think that takes away from the need to cooperate and work together and the only time I become involved is when there is a breakdown in some fashion. Otherwise, the fact that you set this date for this or so forth having that does not – if that is agreeable than that is agreeable and that is fine by me except if there is a breakdown – and the other thing I would say is that a lot of these matters unless there is some compelling reason why there needs to be a verbal record of it. I would prefer to do it and I think most people would in terms of the attorneys just on the telephone. Just put together a telephone conference and see if there is a – because many times when that is done rather than coming to court, set a time, and of course that can be two weeks from now at the earliest. I try to be as available as possible so if you put together a few minute telephone conference and most of the time I find those kinds of conferences are really misunderstandings and just the matter of everyone sort of airing their understanding even if there is a misunderstanding and agreeing on – I see generally matters that are unnecessarily, not contentious, but almost that, and when it comes right down to it, it is really just a matter of coordinating the discussion. To the extent that I can help, that is what I think I should be doing. But in terms if you are agreeable to take three weeks to do this and two weeks to do that, that is fine.

FJC: There are a few judges who want to be involved in the process initially. In other words, they want you to do a telephone or actual conference right at the start of the case to set the parameters. That is a distinct minority, very small minority.

Judge Fratto: I think that in a high volume court you may start out with that intention but you soon realize that there are too many matters to have that close of contact. So we sort of rely on, and I think that we should, even if there were not that many matters I think that sort of (inaudible) in terms of the initial stages unless there is a breakdown that that is unnecessary.

FJC: That was originally part of the conception for the rule and it would require the case management conference and there was strenuous objection and it got taken out and I think for the year of practice everybody assumed that was a good thing to take out, we don’t need it, it is working for the most part. Let’s talk about motion practice. First of all, does a lawyer uniformly get a hearing. The rules say you have to give a hearing on a dispositive motion. Some judges say “if the lawyers want a hearing, I will give them a hearing” other judges say “no, I have too many lawyers asking me for hearings, I am going to decide whether they are going to get a hearing or not on a non-dispositive matter.” What is your view of that?

Judge Fratto: Even on a dispositive motion, and there are going to be times -- that we grant a hearing on a request for a hearing and if there is no request for a hearing then depending on what I have seen in the particular matter, I will set it for a hearing dispositive or non-dispositive. Maybe I come out of the blue sometimes if the attorneys in the terms of the question in a hearing. And whether they are not requesting a hearing, I would just urge if you don’t request a hearing you probably would not get a hearing. But, you may get a hearing because I look at the file and I make a determination and often times I set if for hearing anyway. If you are not requesting a hearing because you think that it will automatically be given, then you are probably mistaken. I have not heard anyone come back and say “I was entitled to a hearing and I appreciate that no one made a request, but I thought that the rule required that.” So I am getting from that, you know, dispositive motions, that they are willing to let it go without a hearing if I don’t need a hearing. So that is they way that I have been handling it.

FJC: I think that is the intention of the rule, they are entitled to one, but they still have to request it.

Judge Fratto: Right, and that is how I have been handling it. I haven’t heard anyone come back and say “I didn’t request it but I felt I was entitled to it.”

FJC: Suppose you request one, mechanically how do you go about setting up a hearing? Does the clerk take the call or should the attorney call the clerk and schedule it?

Judge Fratto: Actually, what the clerk will do here, most of the time, is automatically set them before I even see the file. With your request the clerk automatically sets them. So knowing that, I would urge everyone to be in contact with the clerk to coordinate a time. Ideally, she would try to coordinate that time. I prefer, if you have the opportunity, other than just set a hearing only to find out that it is not going to work for everybody, do your own mini conference to coordinate a time that is going to work to find out how much time is needed because the matter will be set and find out if we need an hour when we have fit you in 15 minutes and the clerk misunderstood what was needed here. The clerk is doing the setting herself.

FJC: I would just throw in a parenthetical and the same goes for trial settings. I had a trial down here this past summer and it was going to be an all day matter and I assumed that we had all day and I got down here and I found out fortunately, we were the first on the calendar, but there were two other matters behind us. They were upset because they were not going to get heard that day so I think that scheduling of trials down here is a little bit different and attorneys should coordinate with the clerk to make sure that the time of the trial is needed is realistically set, do you need two hours, do you need a day? Because they will schedule more than one in a day.

Judge Fratto: And often times the scheduling here is by the clerk, because there is such a high volume we need to do this, ideally, I see everything and make a determination, but often times if you request, for example, the scheduling of a request for a scheduling conference, now in my view, most of those, unless there some compelling need for a record on it, can be done on the telephone. But often times the clerk will see that request and say that is a 15 minute situation so I will throw it on the calendar but I cannot get 15 minutes now for two weeks when the thing could easily be handled more conveniently by a scheduling conference. So, we try to be as well coordinated as possible to have the clerk contact the attorneys and do some coordinating here before matters are set. But, sometimes because of the volume, it becomes a greater burden. My suggestion would be, any time you request something, request a hearing. To make a contact with the clerk, we take some pride out here because there are direct lines with some of these clerks, you can get that number and there is no being switched around. You should easily be able to contact the clerk to schedule a matter. On civil matters it is one person on criminal matters it is another person, there are two people that can do it, and have some contact to do some coordinating. I will tell attorneys, when we are talking about a trial date, I will tell them, Ms. Shaw, who is the one who scheduled the civil matter, she will be in contact with you in probably a week to ten days. If you don’t hear from her in ten days then someone should really contact her because there may be some possibility that she just set this and it will be inconvenient for everybody and then we go through the whole process of trying to change the schedule so, you need to be on top of this.

FJC: So, you need to be on top of this?

Judge Fratto: So attorneys should know Ms. Shaw and have her telephone number which is _____________. Another thing I appreciate is that each court is different but here we are small enough that your calls can be made and you can be in contact with clerk and you should take advantage of that because that will avoid a lot of unnecessary things.

FJC: The mechanics of memoranda, do have suggestions for counsel on what you like to see and mostly what you don’t like to see in memoranda? Do you want courtesy copies? Do you not want courtesy copies? Do you want copies of cases? Do you not want copies of cases? That sort of thing.

Judge Fratto: Without wanting to create to more work than is necessary, the reason I want a courtesy copy, of course, is because I can write on it, and to that extent, I sort of like to do that. I will see the courtesy copy in terms of me seeing the memorandum is not going to be any more convenient than just the file copy because I have such ready access to the file being put in front of me. And so I suppose it is, if it is a matter that, I am not sure how to phrase this, I need to be able to work with this memorandum, and please give me a copy of the memorandum. However, I think a copy of the case, which does not have to be attached to the filed memorandum, but a courtesy copy would be very helpful.

FJC: Because then you don’t have to go dig it up.

Judge Fratto: Then I have the memorandum in front of me and the only reason I need a courtesy copy is if I am going to somehow underline things and so forth. But a courtesy copy of the cases cited, it doesn’t have to become part of the memorandum to the file, but give it to me, that would be very helpful. Because it is so easy, if you will, I mean you have the case right in front of you, and even though I have pretty good access to this sort of thing, it is so much more convenient. I have practiced for 22 years before I got this job and I think the rule is this, and that is this, if you were the judge, what would be the most effective thing for you, quite frankly. I see so many memoranda and if it is concise and to the point, and one thing I have stuck with for years, and I have stuck with even more now, and that is appreciating the fact that often time you are doing something for the benefit client, if you know what I mean.

Get to the point, I see so many memoranda that (inaudible) to get to the other side or something, I don’t know what they are thinking or accomplishing, it has no effect. Everyone’s approach should be “what is the most effective thing I can do for the client?” And the most effective thing I can do for the client is make my point in the most effective way and part of that has to be reducing it down to the essence, I know that it is not intended, but often times it is almost someone will insult my intelligence by thinking that you have to sort of tell it to me in ten different ways before I get it.

I know I am not familiar with many of these concepts but I am intelligent enough to grab a concept, I am a pretty quick study really when it comes down to it. I know that some people don’t think that, but I think I am, so tell me what point is and what your authority is and if I have a copy of the case, let me read it and see if the interpretation of the opinion held is my interpretation and piece it together. And, of course, the other is that, and any (inaudible) argument, and you can which applies both to the oral argument too, of course, should always be done in a very organized almost in an outline form, of course, taking into account that I am one that also likes to ask questions.

And often times (inaudible) an argument in front of the Supreme Court, you start out with your outline and you end up some other place, because there is a question that steered everyone in other different places. Which is not to (inaudible) the attorney and of course to have the same thing in front of arguments in front of the Supreme Court, they are some how concerned with that, that I didn’t get to say what I had in my outline and that does not matter, especially if you are --- if the points have been made, then the points have been made. It should be done as an outline, I make it as concisely and as logically and as focused as possible.

FJC: Without restating the facts.

Judge Fratto: Well, you have to restate a lot of stuff, and once is certainly enough and often times, although sometimes a lot of these facts are quite interesting but really not relevant to – sometimes I understand that often time you have to use – you are citing all of the facts because, in terms of the factual basis, because what may be relevant from one view is, I will leave out a fact that I think is not relevant but it really is relevant, so I should include more facts and let the judge sort out some of that, but it (inaudible) is mostly the argument, to zero in on what the argument it. Make it as concise and logically presented as possible and, quite frankly, as briefly as possible.

Often times, especially the oral argument of it, I want to show enough respect, of course, as I do have for the litigants, that lets them tell me what they think they need to tell me, but often time we are spending a lot of time, quite frankly, on irrelevant things and so I urge everybody to, don’t make this stream of consciousness. Focus in, and that goes for both the written memoranda and the oral argument. I think that the attorneys that are the most experienced are the best (inaudible). You see that correlation in terms of experience. From my experience and from both sides of the bench, and the importance of that is almost apparent, I would like to think that I have not lost a good argument, I mean I have not lost the thread of a good argument because the attorney does not present it well, but undoubtedly I have. I am only as good I suppose, and I have heard this said, a judge is sometimes only as good, the decision is only as good as what you give the judge to work with and you need to approach it that way.

FJC: Let’s change topics. Do you require mediation in your court?

Judge Fratto: I do not. I sort of leave it to the attorneys in terms of what they need. Maybe it is a lack of skill on my part, but I work with both attorneys they are experienced enough you know what is going to happen here in all likelihood. Sometimes it is just easier to try it especially when you are dealing with experienced attorneys.

I think that there is much to be gained from mediation, and often times I think that attorneys would say that - what we need here, and one thing we have out in Murray, that we have not developed very much, but I would like to some more and that is the non-trial judge doing some mediation. And I offer this to the attorneys on most matters. But I leave it to them, it is not required. If you think there is some good for this mutual third party, if you will, who can do more hands on than a trial judge in terms of getting right down into the trench and dealing with the facts and massaging the situation quite a bit, then we will schedule a time for as long as you think you will need to get in front of this other judge and do a little mediation, if you want to use that word.

FJC: From my own personal experience, I think it is enormously effective to have the judge do that, not so much as for the attorneys, unless they are inexperienced, but for the clients.

Judge Fratto: I know what you mean.

FJC: It is very difficult for me as a defense lawyer to say to an insurance adjuster that “hey, we have got to settle this case,” or you need to do to this because they think well, you are just wimping out before trial, conversely on the plaintiff’s side, “you know you really never looked at the $100,000 we offered you.” “But you told me I could get $500,000.” If a judge, not the one who is going to try the case necessarily, but some judge sitting in that big chair can tell that “client” you know I have seen three of these cases go to trial and none of those people got anything, these trials are very dangerous for both sides.” And if they can hear that from a third party in an authority position, it think it is very impressive.

Judge Fratto: And that is exactly, for the most part, would be the only purpose for this kind of thing. I mean the attorneys know where the matter sits. You are right, often times it takes – let your client know what the writing is on the wall. But, I will tell you what I have done, there is a program that will attempt you to do this, and we have done a few of these, I have and Judge Burton has, and our reaction to this is, and part of it may be our skill, (inaudible), I don’t doubt that. Most of the time, there have been a couple of times where this is, and it is exactly what you describe, that has sort of lingered out for the client, the reality, negotiate it a little bit more and a little better, but many times it really is one attorney saying “this is our position and we are in no position to budge” and so forth and so on, and the other attorney is saying “well, we (inaudible).”

FJC: Let’s move on. Jury trials. Do you typically have a working pretrial before a jury trial. In other words, a session with the lawyers to go over what going to happen at the trial?

Judge Fratto: Only if the attorneys think there would be some help doing that, I have not done one of those here. I take the position that whatever you think is going to be helpful, I am always willing to try that. We have done a questionnaire to the jury a couple of days before and doing the questionnaires with them and some other sorts of things. It would take one attorney or the other, if not both of them, hopefully both of them, to say this is what is going to be helpful in terms of doing this.

FJC: You would like to get your motions in limine handled at a point other than the first morning of trial, I assume?

Judge Fratto: Yes.

FJC: But you probably do not want to hear them the first morning?

Judge Fratto: No, I don’t.

FJC: And those should be set up on the calendar to be heard sometime before?

Judge Fratto: In terms of calendaring those, you file the motion and call the clerk and say I need to get a hearing time for this and need so much time” and hopefully if the not clerk, at least the attorney making that call and said “I have contacted the other attorney and here are some times” and we will see if we can fit that in where it is going to be convenient for everybody.

FJC: You mentioned questionnaires, I suppose you are not adverse to brief questionnaires in a proper case. Is it a typical way that those are handled or have they been so few and far between that there is no typical way.

Judge Fratto: Too far between to say that there is a typical way to do that. Although when we have done it in the past on a few frequent times is bring the venire in giving an opportunity to fill out the questionnaire that has been agreed upon by the parties. The time frame was agreed upon by the parties. One time we had them come in a week before – let me think – they way we do the panel out here is we get a slate of names from the jury clerk in Salt Lake between 30 and 50 names, and they are our names for a month. In other words, we don’t even know the names of the possible jurors we have to work with. Sooner than a month even sounds too long. I will have to check that, but not much longer than that.

FJC: How do you handle your voir dire. Do you do it? Do the attorneys do some of it? Do you do all of it?

Judge Fratto: I have all these different ways of doing that. I tried and I did part of it myself and I suppose, depending on who the attorneys are and what I think would be the most effective, I am willing to try almost any of these techniques. But, 99% of the time, I like to ask a set of questions and through me whatever questions you want to ask. I prefer to have a proposed voir dire 24 hours in advance. That way I can look over what you are proposing. But that would not preclude you in when I turn it over for further questions to ask. Questions that you think are appropriate, you are not bound on what you submitted as voir dire.

FJC: Your normal day is, what 8:30 a.m.? When do you start?

Judge Fratto: Well I am going to trial tomorrow for three days starting at 9:30 a.m. which will accommodate schedules. But, I usually start it at 8:30 a.m.

FJC: Normally you want instructions at what point? The first morning of trial or before?

Judge Fratto: The first morning of trial.

FJC: How do you handle instructions. Some judges want the attorneys to try to agree on an agreed set and the ones that are in dispute only, does the court want to have a copy? Because some judges want to do the instructions themselves. How do you do it?

Judge Fratto: Well, I would prefer that I that I just be given an agreed set. I would prefer the agreed set. I know on a criminal matter I try to do an agreed set but now I just typically do them myself with taking into account, of course, what you have requested. On civil matters you submit what you think you want to submit and then lets have a conference hearing and put together a group set amongst the three of us, that is how I have been doing it. We will discuss that and we will have our set ready for the jury.

FJC: MUJI Criminal should be out within 6 months on the litigation section. I think that will make your job a bit easier on the criminal instructions. Any special considerations in domestic cases that you would like to convey to counsel? For example, two Salt Lake City judges wanted to convey to counsel to be very careful in the use of children as witnesses. In other words, looking at the bigger picture, not just what your client wants, but what is in the child’s interest. The are reluctant to hear children in custody disputes on behalf of one side or the other. That was one point that came up.

Judge Fratto: I would reiterate that. In fact, unless there is some, and that would only be almost with prior permission, that there would ever be a need to hear from the child in custody disputes. I would not expect to have the children in court or in the courthouse during the course of that. There may be, I have not had a case that that, there may be an exception where a child would be needed in that way, and that should be discussed before that rather than springing it on me I suppose.

FJC: I would like to close by letting you talk about what you think an effective advocates do when they talk to juries or to a judge and conversely what can be ineffective? Your perception of that.

Judge Fratto: I think, as I said, do this from just experience on both sides that everything an advocate does is done with the best interest of the client in mind and so when you are trying to persuade the judge to a proposition you of course rely on your persuasive arguments and everything else, no stone is left unturned in terms of the interest of your client. It’s a coat and tie affair, I guess what I am trying to say here is that from perspective and some of these things might be important, I have attorneys say “well can I remain seated at counsel table” I say “I guess you can if your more comfortable.” But that should not be your approach. Your approach should be “my client’s best interest is served if the judge sees that I am professional and I am well prepared and I am articulate and I am all these other things because even though that may be over and aside from the merits of the argument, everything I can do in the interest of the client to be persuasive I should do and in some respect. They often times, I don’t take offense, don’t get me wrong, and I am certainly not, I don’t think, deciding something on this sort thing, but I think one’s approach has to be that way. I’ve got to do everything keeping in mind the interest of the client and what the client’s interests are and what is most effective in my advocacy of the client and let that be my value for everything I do in my relationship with the Court.