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home > chambers > judge webb > civil trial procedure order

CIVIL TRIAL PROCEDURE ORDER
Honorable Rodney S. Webb

October 29, 1999

The court provides the following procedural information for attorneys appearing in civil trials before the Honorable Rodney S. Webb:

1. Local and Federal Rules. Many answers to frequently asked questions are contained in the Local Rules of this court, the Federal Rules of Civil Procedure, and the Federal Rules of Evidence. All counsel are expected to know these rules and to follow them.
2. Rule 615. Either party may request exclusion of witnesses pursuant to Fed. R. Evid. 615. This request may be made at the pretrial conference on the first day of trial. If such a request is made, the attorneys are responsible for ensuring that witnesses are not present in the courtroom before they testify. The exclusion does not apply to designated representatives at counsel table.
3. Pretrial Hearing. Judge Webb's usual practice is to hold a pretrial conference with counsel prior to jury selection in his chambers. It is at this conference that the court will provide counsel with the preliminary jury instructions and discuss other items without the jury present.
4. Voir dire. In civil trials, the judicial officer conducts most or all of the voir dire. The judge will question the panel as a whole on general topics such as knowledge of the case, the parties, or the attorneys; experience with the judicial system as parties, witnesses or jurors; serious schedule conflicts, etc.. The judge will then ask each venire person individual questions about his or her education, background, occupation, family, interests, etc.. Attorneys may submit written requested voir dire topics to the judge at any time before trial begins. At the conclusion of the court's voir dire, the judge will ask the attorneys at sidebar whether any further questions should be asked. The attorneys may have approximately 15 minutes each to ask questions if necessary. Voir dire is usually completed in half a day.
5. Jury selection. In civil cases, 14 venire persons will be seated in the jury box for voir dire. At the conclusion of voir dire, the court will ask the attorneys at sidebar whether they have any challenges for cause. The law clerk will then attend the attorneys for the exercise of peremptory challenges. Usually, a jury of eight is seated in civil cases. If one or two jurors must be excused during the trial, the remaining jurors can still decide the case. Peremptory challenges are exercised alternately as provided by Local Rule 47.1(c). The first eight unchallenged jurors will constitute the jury. Counsel will receive a list of the potential jurors from the clerk's office approximately two weeks prior to the jury trial.
6. Opening statements. Plaintiff gives the first opening statement. Unless special permission is given, the defendant's opening statement immediately follows the plaintiff's. The judge will discuss time limits for opening statements at the pretrial conference on the first day of trial. Exhibits may be used in opening statements if both sides so stipulate.
7. Presentation of the case. The party with the burden of proof is seated at the table closest to the jury. The court prefers, but does not require, the use of a lectern for questioning witnesses. Attorneys need not ask the court's permission to approach witnesses to exchange documents, etc., although attorneys should respect the witness' space. The court permits four rounds of questioning with each witness (direct, cross, re-direct, and re-cross). Additional rounds must have special permission of the court.
8. Publication of evidence. The court provides a television presenter (ELMO) for publication of evidence to the jury. While posterboard exhibits, etc., are permitted, the court expects that the majority of pictorial and documentary evidence will be published through the ELMO. This saves considerable expense and time for the parties and is a most effective way of presenting evidence. The system includes a VCR so that depositions and other videotapes may be shown. Attorneys may also connect their own laptop computers to the system to present any evidence prepared on a computer/CD-ROM. Several large-screen television monitors are also provided. Attorneys, or the staff who will assist them at trial, should become familiar with the ELMO system before trial. Arrangements may be made with the clerk's office for access to the courtroom to practice with the system and to receive training from the clerk's staff. Other devices available for publication of evidence include a white (erasable) board and easels. Color video exhibits may be produced from any image displayed through the presentation system. (A small fee may be charged for this exhibit production).
9. Exhibits (Foundation). The court has found that smooth progression at trial is assured when parties stipulate to foundation for evidentiary items during pretrial. To that end, prior to trial, the court will direct waiver of any objections as to foundation for admissibility of evidentiary items where the proponent of the evidence certifies that the items is authentic; i.e., that the item is what its proponent claims. Challenges to foundation may only be had if the objecting party proffers a reasonable basis to conclude that the item is not what its proponent claims.
10. Interactive Television. One courtroom in Fargo and one courtroom in Bismarck are equipped to permit live video testimony in court proceedings. Generally, stipulation of counsel is required to allow live video testimony to a jury. Some expense may be incurred by litigants and a pretrial discussion of the logistics should be had with the clerk's office.
11. Real-time court reporting. The official court reporter provides real-time court reporting to the judge via a notebook computer. Attorneys may make arrangements with the court reporter, at their own expense, to connect their personal computers to real-time.
12. Interpreter/Sound Enhancement Equipment. A wireless infrared interpreter/sound enhancement system is available within the courtrooms. The clerk maintains earphones which can be dialed to either sound enhancement or interpretation service. This system permits many people to participate in the court proceedings simultaneously.
13. Jury questions. The court may permit jurors to submit written questions during testimony. All questions are previewed by the court, and, in the court's discretion, by the attorneys. If a question is permitted, the court reads the question to the witness. Attorneys may make evidentiary objections, and are permitted to ask follow-up questions of the witness.
14. Jury instructions. The court uses the Eighth Circuit Model jury instructions. The court will have reviewed the parties' proposed jury instructions as submitted at least five days prior to trial (Local Rule 47.1(f)). A draft of preliminary instructions is given to attorneys during jury selection, and attorneys have an opportunity to make objections. Preliminary instructions are read to the jury before opening statements. Shortly before the conclusion of the parties' presentation of evidence, the court will provide a draft of final jury instructions to the attorneys. The court will hold a conference at which the attorneys may present their objections and requests. A final draft of instructions will be prepared by the court, and attorneys may make formal objections. The court provides a listing of rulings on both parties' requested instructions. The court reads final instructions in advance of closing arguments. The court does not permit any person to leave or enter the courtroom during the charge of the jury, unless it is an emergency situation.
15. Jury note-taking. The court permits jurors to take individual notes during trial. The jurors' notebooks are secured by the clerk's office at breaks and during evening hours. The jurors are instructed to destroy their notes following reception of the verdict.
16. Closing arguments. Plaintiff presents the first closing argument, and may reserve time for rebuttal. Defendant then presents a closing argument, followed by the plaintiff's rebuttal. Other than as provided in Local Rule 57.1(e), the court will discuss time limits with attorneys. Any exhibits received in evidence, or stipulated to by attorneys (e.g., summary charts, etc.), as well as the court's written instructions to the jury, may be used in closing arguments.
17. Trial schedule. The court usually follows a daily trial schedule beginning at 9:00 AM and ending near 5:00 PM, with a 20-minute break in the morning and afternoon and a 1 ½ hour lunch break. The jury is requested to follow a similar work schedule during deliberations. The clerk's office provides pagers to attorneys during deliberations so that they may be contacted by the clerk.
18. Courtroom Decorum. The court prefers that attorneys make all presentations in the courtroom from the lectern. Stand when the jury enters the courtroom and stand at all times when speaking. No eating, drink, other than water, no gum chewing allowed. Audible beepers, watches, or cellular telephones must be turned off in the courtroom. Please tell your clients and witnesses these rules. Please be civil to one another.
19. Clerk's office. Arrangements for use of telephones and conference rooms may be made through the clerk's office. Please contact the clerk's office for any other questions.

PLEASE NOTE: These procedures are followed by the Honorable Rodney S. Webb in civil jury trial matters. These procedures may not be followed by other judicial officers within the district.

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