Judge John C. Backlund

1. Scheduling Conferences

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

A: Scheduling conferences are used and are conducted on the record in Court with counsel present.

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

A: The Order may or may not include the trial date. It will usually provide a date for completion of discovery, including an exchange of witness lists and a brief summary of the anticipated testimony of each witness.

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: If counsel follow the rules for submitting motions, the Court will already have in the file any memoranda supporting or opposing the motion. These I read before oral argument. If counsel wish to file a supplemental memorandum on the day of oral argument I would appreciate a fax copy before the hearing on the motion.

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: Unless counsel request oral argument on the motion or the Court sua sponte sets the matter for oral argument, the clerk will place the file on my desk for a ruling without oral argument upon receipt of a request for a ruling. If there is a request for oral argument, the clerk will schedule that with counsel.

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

A: If a request for oral argument is timely submitted, the motion is always scheduled for oral argument.

Q: What is your policy on allowing overlength memoranda?

A: I would prefer that counsel seek leave to file a memoranda that is too lengthy. Normally, I review the memoranda and decline to comment on the number of pages.

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

A: Personal attacks on opposing counsel or the other party are not helpful. Effective briefs set forth the relevant facts that support or do not support the client’s position, identify the issues for the Court, and succinctly argue the relevant statutory and case law. The text should be clear and readable and not redundant.

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

A: Yes.

Q: What makes an effective motions argument?

A: Counsel should assume I have read the memoranda and that I am familiar with the facts. Counsel should focus on the primary issues and argue the relevant law and be prepared to address any questions or concerns expressed by the judge.

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: No.

3. Final Pretrial Conference

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

A: To refine the issues that will be tried. To make a record of any stipulations regarding the evidence. To provide the parties an opportunity to explore settlement of the case. To anticipate potential evidentiary issues that may come up in the trial. To determine the probable length of the trial. To consider or schedule any pending pretrial motions.

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

A: Final list of witnesses. Any evidentiary issues. Jury instructions. Stipulations. Exhibits.

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

A: The parties should be present in the event that negotiations may lead to settlement. I might inquire if the parties have discussed mediation or arbitration, although this issue is usually mentioned earlier in the process. The parties are granted all the time they require to attempt to negotiate a settlement.

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

A: Yes, normally, unless travel would impose a hardship.

4. Jury Trial Practice

Jury Selection:

Q: How is voir dire conducted in your courtroom?

A: The Court conducts voir dire, including questioning of prospective jurors.

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

A: Yes. Counsel may pose questions to the panel through the Court. The Court receives the question and restates it to the panel or individual prospective juror.

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

A: Seven days before trial.

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

A: Questionnaires with relevant questions would be used.

Requested Instructions:

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

A: Seven days before trial.

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: One clean copy of each instruction and one copy with any authorities, statutory, case law or MUJI.

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

A: Yes.

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

A: That would be helpful to the clerk.

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: On my current judicial assignment, the Court has a high volume criminal calendar every morning at 10:00 and jury trials commence at 1:00.

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

A: I prefer to hear motions in limine on a date in advance of the jury trial.

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

A: Counsel should use the final pretrial to advise the court of the timing of the presentation of the case so that a reasonable schedule may be worked out with the Court and opposing counsel.

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

A: Counsel should arrive early for the trial to have all exhibits marked before the trial commences, with advance copies for opposing counsel.

5. Bench Trial Practice

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

A: Counsel often waive making an opening statement in bench trials. Counsel’s argument to a jury may be more detailed on the facts and also necessarily requires argument on the law as set forth in the instructions.

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

A: It is appreciated, yes. After oral argument, the Court may request counsel for each party to submit proposed findings, conclusions and an order.

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

A: Yes, I appreciate such preparation, especially with respect to admissibility of evidence, expert witnesses, constitutional issues regarding application of a statute, etc.

6. Thoughts on Effective Advocacy

Q: What makes an effective advocate in jury arguments?

A: Counsel is straight forward with the jury on the facts presented in the trial, building an element of trust between counsel and the jury. Counsel does not wildly exaggerate facts or the positions of the parties. Counsel is a teacher instructing the jury in such a way that the jury can better perform its role in the process. Counsel does not repeat the same argument, but presents a clear, well-organized picture to the jury.

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

A: Lack of organization or structure; rambling, repeating points; taking too much time.

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

A: Arguing with or brow beating witnesses is counter productive. Counsel that know exactly what point they wish to make and can lead the testimony in that direction are effective.

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

A: Yes.

7. Criminal Matters

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

A: Such requests are usually made in writing. If the Defendant is pro se and requests a continuance on a misdemeanor, not involving a crime of violence, the clerk may reschedule an arraignment one time.

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

A: The Court will consider the issue of bail at the bail hearing, arraignment, first appearance or any subsequent proceeding.

Q: What information do you want from counsel at the time of sentencing?

A: From the prosecutor a victim impact statement, statement from the victim in court, claim for restitution, if any, and any aggravating circumstances. From defense counsel, any mitigating circumstances, any effort by the defendant to make restitution, or engage in any substance abuse treatment or anger management treatment or mental health therapy when appropriate. The Court needs to understand the defendant’s personal circumstances regarding ability to comply with any sentence.

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

A: Yes.

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

A: The Court uses the AOC prepared sentencing matrix on DUI’s.

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

A: If counsel needs to be in another court, counsel should advise the clerk so counsel’s case can be called out of order.

8. 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: A victim advocate for victims of domestic violence attends every court calendar and may be called upon to report on the record relevant information on reviews or orders to show cause or at sentencings.

Q: What do you want to have on temporary order issues?

A: On a criminal protective order issued on a domestic violence case, I need a probable cause statement from the prosecution.

9. Discovery Practices

Q: What is your approach to resolving discovery disputes?

A: Counsel may request a hearing and the Court depends upon counsel being civil toward each other. The Court may refer to the civil guidelines.

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

A: The award of attorneys fees is usually an effective remedy.

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

A: Yes.

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: Occasionally, a party or counsel need to be gently reminded to be civil and the admonishment is usually effective.

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

A: Yes. Counsel and pro se litigants need to obtain permission to approach a witness or the bench.

11. Other Miscellaneous Issues

Q: What are your opinions regarding courtroom dress?

A: Clean, neat attire is appreciated. We have sign posted which prohibits shorts, halter tops, etc. Counsel should be dressed appropriately, with a coat and tie for gentlemen.

Q: Do you allow children in your courtroom?

A: Yes, if quiet and respectful.

Q: Do you allow cell phones in your courtroom?

A: Yes, if turned off.

Q: What, if anything, do you do to enforce promptness in your courtroom?

A: Use of admonitions to be on time. Rescheduling matters if counsel or party late without excuse.

12. Other Suggestions, Thoughts, Concerns

Experienced, wise counsel treat the court clerks with respect and appreciation for any assistance given.

13. Clerk’s Comments

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

A: Orem District Court
Main #764-5860