Judge Samuel McVey

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, in person or by telephone according to counsel’s preference, unless I feel that we need an in-person conference. But that is a rare exception.

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

A: Counsel should set realistic dates. So long as orders comply with Rules 16 and 26, I require nothing further.

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: Yes, 2 days in advance of the hearing. Counsel need only submit their own briefs, not the other parties’ briefs.

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: These are scheduled automatically, but the clerk clears the date with counsel as a general rule.

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

A: Never.

Q: What is your policy on allowing overlength memoranda?

A: I allow them, but be reasonable. There should be a reason for anything over 10 pages.

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

A: Hard to say. I know it when I see it, but short factual introductions help, even though a statement of facts is set out later. Redundant passages do not help. Active voice and short sentences help.

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

A: Only if they are out-of-state or federal cases.

Q: What makes an effective motions argument?

A: Short and to the point. Graphs and charts help. PowerPoints do not help, usually. I will interrupt with questions, so don’t worry—I’m just trying to ensure I get your point.

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: Most requests don’t comply with the rules. Ensure that ex parte motions are supported by affidavits and the order strictly incorporates notice requirements. Also, ensure your issue actually involves irreparable harm, etc. Prove notice compliance by affidavit.

3. Final Pretrial Conference

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

A: Organize the trial. Counsel have plenty of incentive to settle on their own by then, so I won’t go into it much unless counsel request my help.

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

A: Standard jury instructions, motions in limine, realistic length of trial, voir dire, jury questionnaires, daily schedules, witness problems. While exhibits should be exchanged (or at least a list) by the time of the final pretrial conference, they don’t have to be marked yet.

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

A: Very little, other than to raise the subject. I raise the issue of settlement and pursue it more aggressively, suggest mediation, etc. long before final pretrial. As noted, there is plenty of incentive to settle by then.

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

A: Only if the parties are going to discuss settlement. However, clients should be available by phone.

4. Jury Trial Practice

Jury Selection:

Q: How is voir dire conducted in your courtroom?

A: Questionnaires, then I conduct general en banc voir dire, then allow counsel en banc voir dire. Follow-up individual voir dire is in chambers.

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

A: Yes, as much as they want. Attorneys usually know what the limits are, so I don’t cut them off unless they are going off on tangents.

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

A: Final pretrial.

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

A: Yes.

Requested Instructions:

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

A: Final pretrial.

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: Citations to cases or to MUJI is fine. Please carefully proofread the instructions, even stock ones. Please remove any reference to case authority in the instructions actually given to the jury to take into deliberations.

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

A: Yes. We email them to counsel.

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

A: Yes.

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: It depends upon the length of trial. Normally, the schedule is 9 to 5 with a 45-minute lunch break, unless counsel need more time, with 15-minute breaks in the morning and afternoon. For trials lasting more than one week, the schedule is 8:30 to 3:00, with 30 minutes for lunch.

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

A: Present them in time for resolution at the final pretrial conference. Things that come up later can be presented during trial.

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

A: No need for all witnesses to be present when the trial starts, so long as they show up in time to testify. I don’t appreciate dead time, especially in jury trials, but I recognize that some witness tardiness is unforeseeable.

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

A: Mark them before trial, if they are extensive. Plaintiffs use numbers, defendants use letters, unless extensive exhibits require only use of numbers. Use looseleaf binders if possible.

5. Bench Trial Practice

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

A: Very little. I am equally aggressive in both types of trials in not allowing inadmissible evidence, requiring foundation, etc. In a bench trial, I may try to help new attorneys understand rules of evidence more than I would if a jury is present. I will make suggestions in a bench trial if counsel is floundering and there is no prejudice by my suggestions.

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

A: In complicated cases, I appreciate them. I recognize that they are expensive to produce.

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

A: For non-jury trials, or if there are complex evidentiary issues, I require them. I do not expect them to be comprehensive. They are expensive to create.

6. Thoughts on Effective Advocacy

Q: What makes an effective advocate in jury arguments?

A: Write down an outline and follow it. Use a blackboard or easel and paper to map things out.

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

A: Going overboard and talking about inadmissible evidence. Talking too long. Acting arrogant or smug.

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

A: Asking the same question over and over. Denials do not become less or more persuasive by their frequency. No speaking objections. Get to the point.

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

A: Not usually. Half the time there are technical problems. They can be mind-numbing due to length. Charts work better. I am trained in PowerPoint, but think it is overused. The charts are always there; PowerPoint slides disappear as soon as the next one arises.

7. Criminal Matters

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

A: If counsel agree, I will usually grant them as long as rights are waived. Counsel usually know how to handle their case, and I will give them latitude to do so, as long as we are not way behind on scheduling trials.

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

A: Anytime a motion has been served on the other party. Prosecution should let defense counsel know in advance if a change in status is going to be requested, and vice versa.

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

A: Employment, family situation (minor children), prior convictions (unresolved arrests mean little), a recommendation on jail/prison length, fine amounts and restitution. Any special probation conditions.

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

A: No, except for psychological evaluations or drug treatment.

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

A: On misdemeanors, I do use the Uniform Fine Schedule as a guide. I do impose mandatory DUI sentences.

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

A: Approach as soon as you are ready, unless the matter will take over 20 minutes, then be courteous to other counsel. But if there is a lull, approach on longer matters as well. Please give the court the calendar matter number.

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: No, other than pursue stipulations.

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

A: Affidavits or testimony that is focused and actually supports an order. No need to use it as a chance to vent against a spouse.

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

A: I do them in chambers, but on the record. Counsel can be present if they don’t interrupt. Guardian ad litem can also be present.

9. Discovery Practices

Q: What is your approach to resolving discovery disputes?

A: Resolve them under the rules. Encourage cooperation. Will usually work out a resolution in court.

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

A: I will impose attorney fees for knowing abuses. Instruction a witness not to answer in a deposition for reasons other than privilege will usually merit a sanction under Rule 37.

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

A: Yes, telephone calls are fine. Counsel can fax relevant documents.

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: Not usually. I try to be civil and have a friendly courtroom. If there are problems, I direct counsel to cool down and they do it.

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

A: No.

11. Other Miscellaneous Issues

Q: What are your opinions regarding courtroom dress?

A: Dress professionally. Coat and tie for men, pant suit/business suit for women.

Q: Do you allow children in your courtroom?

A: Yes, but take them out if they are fussing.

Q: Do you allow cell phones in your courtroom?

A: Yes, but turn the audible ringer off.

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

A: Gentle persuasion. Unambiguous schedules.

12. Other Suggestions, Thoughts, Concerns

Almost all Utah attorneys are professional. I know litigation is expensive and stressful. I would like to do what I can to reduce the stress and expense. I am always available to talk to counsel, but no ex parte contacts about a case please unless allowed by the rules. If you feel you weren’t treated with respect or fairly, let me know. An anonymous note is fine. I am here to serve you, not the other way around.

13. Clerk’s Comments

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

A: Calli Walker—(801) 429-1067

Q: My clerk wants you to please do these things:

A: Do not fax pleadings or courtesy copies.  There is a local rule against faxed filings and the courtesy copies eat up our fax machine time and paper. Get filings to the court on time. Let us know as soon as a matter settles so we can call off the jury. Please speak slowly when leaving phone or case numbers.