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QUESTIONNAIRE FOR JUDGE’S BENCHBOOK
JUDGE: Kate Toomey - 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: Yes. More often than
not, we conduct them by telephone. Exceptions include cases where there
are so many parties that a telephone conference would be confusing,
and cases involving pro se litigants without telephone access.
Q: What
are your preferences regarding Case Management Orders/Scheduling Orders?
Do you require that specific things be included in such orders?
A: I
prefer that such orders include everything identified in Rules 26 and
16, with pretrial and trial dates deferred for scheduling until the
close of discovery.
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 would prefer not to have courtesy copies except on the rare occasions
when I ask for them, in which case I will set a date for their delivery.
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: The clerks who assist me initiate calls to set hearings.
Q: Under what circumstances do you decline to grant a request for oral
argument?
A: I follow Rule 7(e). Unless it is a dispositive motion, I usually
decline the request when the facts and legal arguments are adequately
presented in the briefs and record, and the decisional process would
not be significantly aided by a hearing. I also usually decline the request
when the motion is unopposed.
Q: What is your policy on allowing overlength memoranda?
A: I’m inclined to allow them if the situation warrants it, but
I’d prefer that counsel work hard to avoid filing them.
Q: What
separates a useful brief from one that is unhelpful?
A: Good writing and careful focus on the issues. Bad writing, including
poor structure and errors in grammar and spelling, is distracting.
Q: Do you prefer that counsel provide copies of the relevant cases prior
to a hearing?
A: Yes, for cases outside this jurisdiction. Otherwise, no.
Q: What makes an effective motions argument?
A: Concise, clear presentation of the legal issues and the ability to
engage in dialogue.
Q: Is there anything about the way you handle requests for temporary
restraining orders and preliminary injunctions that you think the bar
should be aware of?
A: Don’t bring it to me without involving the adverse party or
their counsel, or having an excellent reason why you didn’t.
3. Final Pretrial Conference
Q: In your view, what is the purpose of a final pretrial conference?
A: Making sure that everyone is ready and that the trial proceeds smoothly.
Q: What topics or issues should counsel come prepared to discuss?
A: Procedural issues, witnesses, exhibits, proposed jury instructions,
and any questions that could be resolved before trial starts.
Q: What steps do you take, if any, at a final pretrial conference to
encourage settlement of the case?
A: None. But I ask counsel to keep me advised.
Q: Do you require clients to be present at final pretrial conferences?
A: Yes, usually.
4. Jury Trial Practice
Jury Selection:
Q: How is voir dire conducted in your courtroom?
A: I ask basic initial questions, then permit attorneys to conduct their
own within the limits of the rules and the interpretive case law, and
with an outer time limit.
Q: Do you allow counsel to participate in voir dire? If so, to what
extent?
A: Yes; I ask them to keep it within reasonable time limits so that
selection is complete before the end of the first morning.
Q: What is your due date for requested voir dire questions?
A: I don’t have one.
Q: Do you allow or encourage the use of jury questionnaires?
A: If the case is complex, I would consider it.
Requested Instructions:
Q: When do you require requested instructions to be submitted?
A: At the final pretrial conference.
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: A MUJI citation is sufficient. If I need more, I ask for it.
Q: Do you have a set of stock jury instructions that you use?
A: No.
Q: Do you prefer to receive an electronic copy of requested instructions?
A: I ask for both formats.
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: I prefer 9 to 5 with an hour
for lunch.
Q: What are your preferences with respect to motions in limine and other
trial related motions?
A: I would rather have them submitted well in
advance of the trial unless it’s truly unavoidable because
the issue could not have been anticipated. Oftentimes, good planning
helps avoid eleventh-hour scrambling.
Q: What are your preferences and/or procedures related to witness scheduling?
A: I prefer to let the attorneys work it out, and to do so in a way
that minimizes delay.
Q: What are your preferences with respect to trial exhibits?
A: Pre-marked with consecutive numbers (e.g.
Plaintiff’s 1, 2,
3, etc., and Defendant’s 10, 11, 12, etc.) and no sub-parts (such
as 1-A, B, and C).
5. Bench Trial Practice
Q: What are the major differences, in your courtroom, between bench
trials and jury trials?
A: In jury trials, I tend to take more frequent recesses so that the
jurors can be as comfortable and alert as possible. In bench trials,
I sometimes ask questions.
Q: Do you appreciate or require proposed findings of fact and conclusions
of law from counsel?
A: If I want them, I ask for them.
Q: Do you appreciate or require trial briefs from counsel?
A: Again, if I want them, I ask for them. When I ask for briefs, I set
a deadline for simultaneous filing because I do not wish it to become
an additional forum for responsive briefing.
6. Thoughts on Effective Advocacy
Q: What makes an effective advocate in jury arguments?
A: Keeping them
interested and being courteous. No one likes to be bored, and no one
likes a bully.
Q: What are the most common mistakes made in argument?
A: Reiterating a point to death and being rude.
Q: What are some techniques that do, or do not, work effectively in
the examination of witnesses?
A: Keep the questions simple. Know when to stop.
Q: Do you find the use of computer-assisted presentations (e.g., PowerPoint)
effective and/or useful?
A: Personally, no. I have no opinion about whether
they’re effective
with jurors. It’s a rare occasion, even with advance set-up, that
there isn’t some sort of hitch.
7. Special Issues for Domestic Cases
Q: Are there any special issues that arise in your courtroom in domestic
cases of which you would like the bar to be aware?
A: I really appreciate it when counsel represent their clients with
diligence and skill without acting in a manner inconsistent with the
Standards of Professionalism and Civility.
Q: What do you want to have on temporary order issues?
A: Sufficient evidence to warrant what’s
being requested.
Q: Do you have a policy on child interviews with respect to custody?
A: No.
8. Discovery Practices
Q: What is your approach to resolving discovery disputes?
A: I hear from the attorneys and then make a decision that seems reasonable
to me considering all the circumstances.
Q: What are your thoughts on imposing sanctions for discovery abuses?
A:
I’ll do it if the situation warrants it.
Q: Are you generally available to solve problems that arise during a
deposition?
A: Yes.
9. 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: Ever is a big word. On those rare occasions, I ask counsel to dial
it back a little. Each counsel table has the Standards of Professionalism
and Civility, and I hope this helps remind people that I place a premium
on civility.
Q: Do you impose any limitations on courtroom movement (approaching
witnesses, podium, etc.)?
A: Counsel should ask to approach witnesses for the first time, and
I direct attorneys not to hover over the jurors. Other than that, they
can go wherever they want.
10. Other Miscellaneous Issues
Q: What are your opinions regarding courtroom dress?
A: I expect professional attire for attorneys,
but I understand that coming to court isn’t always foreseen.
Q: Do you allow children in your courtroom?
A: It depends on the nature of the case and the age and demeanor of
the child.
Q: Do you allow cell phones in your courtroom?
A: I prefer that people turn them off.
Q: What, if anything, do you do to enforce promptness in your courtroom?
A: I try to be prompt myself.
11. Clerk’s Comments
Q: The names and phone numbers of my clerks are:
A: Kathy 238-7516; Beth
238-7352
Q: My clerks want you to please do these things:
A: Call as soon as you know a case is resolved, especially if it is
set for trial or a hearing. Do not call to ask when the Judge will make
a decision or sign documents you have submitted. Make sure the correct
case number is on any document you file. Do not ask the clerk how to
prepare pleadings or other documents. Make sure you return client calls
and keep them informed of the status of their cases.
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