VI. TRIALS

38.1 Notation of Jury Demand

If a party wishes to demand a jury trial by endorsing it on a filing as permitted by Fed. R. Civ. P. 38(b), the party shall place a notation on the front page of the filing, immediately following the title of the filing, stating "Demand for Jury Trial" or an equivalent statement.  This notation will serve as a sufficient demand under Rule 38(b).  Failure to make the notice in the manner specified in this rule will not result in a waiver under Rule 38(d) if the party has otherwise complied with Rule 38.

39.1 Courtroom Practice

(a) Conduct of Counsel

(1) Counsel shall be punctual and prepared for all court appearances so that hearings and trials may commence on time.  In the event of a delay, counsel shall notify the court and opposing counsel, if possible.

(2) Counsel shall stand when addressing the court and when examining and cross-examining witnesses unless the court expressly excuses counsel from so doing.

(3) When stating an objection, counsel shall state only the basis of the objection (e.g., "leading," or "nonresponsive," or "hearsay").  Under no circumstances shall counsel elaborate or present an argument or make reference to other evidence unless the court so requests.

(4) Counsel shall act and speak respectfully and civilly to the court, jurors, other counsel, parties, witnesses, and court personnel.

(b) Pre-View Statements

If a view will be conducted, each party shall be entitled to make a brief pre-view statement.

(c) Opening Statements

Opening statements shall be nonargumentative and no longer than thirty (30) minutes unless the court otherwise directs.

(d) Examination of Witnesses

Only one (1) attorney for each party shall examine any witness and offer objection relating to that examination unless the court otherwise directs. 

(e) Closing Arguments

Closing arguments shall be limited to one (1) hour and only one (1) attorney shall argue for each party, except by leave of the court.  The plaintiff in a civil action, the libelant in an admiralty action, and the claimant in a land condemnation action shall argue last In a criminal case, the government shall be permitted to offer rebuttal argument that shall not exceed fifteen (15) minutes.

(f) Length of Trial

(1) Trial Day

The court shall establish the limits of the trial day.

(2) Limits on Length of Trial

The court may, after consultation with counsel, establish the amount of time allotted to each side for its case, including cross-examination of witnesses.  Counsel may exceed such allotted time only for good cause shown.  The clerk will maintain a continuing record of time used by each party.

History

(§ (f)(2) amended 1/1/97)

39.2 Continuances

The court will not grant continuances except in extraordinary circumstances.  The efficient use of court resources mandates that continuances be the exception rather than the rule.  Unavailability of a witness ordinarily does not constitute good and sufficient reason for a continuance.

39.3 Views

If a view is desired, the party requesting the view shall include in the final pretrial statement a request for a view and a statement of who will pay for the costs of the view in the first instance.  The court will determine at the final pretrial conference whether a view will be allowed. 

It shall be the responsibility of the party requesting the view to notify the United States Marshal prior to trial that a view is to be taken.

40.1 Assignment of Cases to Tracks

(a) Assignment

All cases shall be assigned to one of the following tracks:

(1) Administrative

This track is for cases in which discovery is not permitted unless prior approval is obtained from the court.  Such cases include habeas corpus cases, Social Security disability cases, government collections of student loans and Veterans Affairs benefits, special education appeals, bankruptcy appeals, and cases that can be resolved on the filings or by motion.  The court will ordinarily resolve these cases within six (6) months after they are ripe for decision.

(2) Expedited

This track is for cases in which the parties have agreed to try the case within six (6) months of the preliminary pretrial conference.  Cases are assigned to this track subject to the approval of the court.  In determining whether a case should be assigned to the expedited track, the court will consider such factors as the complexity of the legal issues, the number of witnesses, the estimated length of the trial, and the suitability of the case for alternative dispute resolution.  Ordinarily, the court will not assign a case to this track unless it can be tried in fewer than five (5) days.  In the event that the assigned judge is unable to try the case as scheduled, the case will be reassigned to any other available judge.

(3) Standard

This track is for cases that do not fall within any of the other three tracks.  These cases will be tried within twelve (12) months of the preliminary pretrial conference. 

(4) Complex

This track is for cases that require special management by the court due to one or more of the following factors:  complex factual issues, complex legal issues, large number of parties, large volume of evidence, extensive discovery, substantial time needed to prepare for trial or other disposition, numerous or complex preliminary issues that must be decided before trial or disposition, length of trial, and other comparable factors.  Cases on this track will be scheduled for trial within two (2) years of the preliminary pretrial conference.

(b) Time of Assignment

The clerk's office will assign cases on the administrative track at time of filing.  The court will assign all other cases to a track at the preliminary pretrial conference or in the order approving the discovery plan.

History

(§ (a)(3) amended 1/1/97; § (b) amended 1/1/00)

40.2 Assignment of Remanded Cases

Cases remanded from the First Circuit shall be assigned as follows, unless the appellate mandate directs otherwise, or unless the judge originally assigned finds that the interests of justice or the appearance of justice warrant reassignment of the case to another judge, after giving due consideration to the rights and convenience of the parties, the conservation of litigant and judicial resources, and the fair and expeditious administration of justice:

(a) Further Proceedings

A case remanded for further proceedings following the vacation of any pretrial order or judgment shall be assigned to the judge who acted in the matter.

(b) Nonjury Trial

A case remanded for a new nonjury trial shall be assigned to a judge other than the judge who conducted the earlier nonjury trial unless remand was predicated solely on errors of law.

(c) Jury Trial

A case remanded for a new jury trial shall be assigned to the judge who conducted the earlier jury trial.

(d) Resentencing

A case remanded for resentencing shall be assigned to the judge who imposed the vacated sentence.

41.1 Settlements

The parties shall promptly inform the clerk when a case settles and within thirty (30) days thereafter file either a signed agreement for entry of judgment or a stipulation for dismissal.  If neither an agreement for judgment nor a stipulation for dismissal is timely filed, the court will dismiss the case with prejudice.

42.1 Related Cases

(a) Defined

Related cases are cases which: (1) arise from substantially the same transaction or event; (2) involve substantially the same parties or property; (3) involve the same patent, trademark, or copyright; (4) call for the resolution of substantially the same questions of law; or (5) would entail substantial duplication of labor if heard by different judges.

(b) Notice

Whenever a civil action filed in or removed to this court involves a related case pending before another court or an administrative agency, counsel for the filing party shall dentify the related case or proceeding on the civil cover sheet filed in this court.  The duty to notify the court of any related proceeding continues throughout the time an action is before this court.

(c) Consolidation by Court

When it appears that two (2) or more cases may be related cases, the court may enter an initial consolidation order on its own initiative directing that, unless an objection is filed within a specified time, the cases will be consolidated. 

(d) Consolidation by Parties

If related cases are pending before a single judge or different judges, any party may move to consolidate the actions.  The motion shall list each case in the caption, beginning with the oldest case, and shall be heard by the judge to whom that case is assigned.

(e) Order of Consolidation

Upon motion of the parties or in the absence of an objection to the initial consolidation order, the court may issue an order of consolidation.

The court will transfer any motions pending in the former related cases to the main case.  Such motions will be treated as if they were refiled as of the date of the consolidation order.

45.1 Bench Warrants

When a person who has been summoned to appear as a witness does not appear as directed, the party on whose behalf the subpoena was issued shall promptly apply for a bench warrant unless that party prefers to proceed without the witness. 

45.2 Witnesses in Cases Proceeding In Forma Pauperis

(a) In General

If a party who has been authorized to proceed in forma pauperis desires the attendance of any witness or the production of any documents or evidence by subpoena or writ, that party shall file a motion containing the name, address, and, if applicable, the inmate number, and a brief statement of the expected testimony of, or of the documents or other evidence to be produced from, each witness not later than twenty-one (21) days before the trial, hearing, or deposition where the witness is expected to testify or produce the requested evidence.  If a witness's stated testimony, or the requested evidence, is not material to the claims or defenses at issue in the case, is repetitive, or unduly burdensome, the court may, in its discretion, decline to order or otherwise limit, the production of the witness or of the requested evidence.

(b) Subpoena Costs

(i) IFP 28 U.S.C. §§ 2254 and 2255 and Indigent Criminal Cases

In in forma pauperis cases brought pursuant to 28 U.S.C. §§ 2254 and 2255, and in indigent criminal cases, witness fees, service fees, and expenses for the subpoena of all witnesses shall be paid for by the Marshal.

(ii) All Other IFP Cases

In all other in forma pauperis cases, if requested by the party by motion, the service fees for the subpoena shall be paid for by the Marshal. All other witness fees and expenses shall not be paid by the United States and are the responsibility of the party. Witnesses shall be subpoenaed as provided by Fed. R. Civ. P. 45(b) and fees tendered accordingly. If no tender is made as required by Rule 45(b) when the subpoena is served, the witness shall not be penalized for failure to attend. However, if the witness honors the subpoena and the subpoenaing party recovers its costs, the witness shall be entitled to payment of fees from the recovered costs on application to the court.

History

(§ (a) amended 1/1/02, 12/1/09; §§ (a) and (b) amended 12/1/17)

45.3 Writs of Habeas Corpus

A witness produced pursuant to a writ of habeas corpus shall not be paid any witness fee.

45.4 [reserved]

History

(removed 12/1/17)

45.5 Attorneys as Witnesses

An attorney must obtain permission from the court in order to participate in the trial of a jury action in which the attorney is a witness.

If counsel wishes to call opposing counsel as a witness, counsel shall file and serve a notice on opposing counsel, including a brief statement explaining why the testimony of counsel may be necessary, at least thirty (30) days prior to the start of the trial.

47.1 Dissemination of Juror Questionnaires

No later than five (5) business days prior to the date of the first trial period in the current two-month term of service, the clerk's office shall maintain and make available copies of any completed juror questionnaire forms optionally provided to the court, to attorneys, their agents and to pro se parties actually involved in cases scheduled for trial. 

Any individual given access to the questionnaires shall not disclose the questionnaires, or information contained therein, to anyone other than the attorneys, their agents, or the parties involved in the trial.  Absent leave of court, at the conclusion of the trial or an appeal if one is taken, all information derived from the questionnaires, with the exception of petit juror names, as well as the questionnaires themselves if distribution is permitted by the court, shall be destroyed in a manner consistent with the destruction of sensitive documents or electronic information. The court may further limit access to, or the distribution of, juror information for good cause. Violation of this rule may be treated as contempt of court.

History

 (Amended 1/1/03, 12/1/13)

47.2 Jury Selection

(a) Examination of Jurors and Challenges for Cause

The court will question the entire array of jurors to determine whether any jurors should be eliminated for cause.  When the court completes its questions of the entire array, the clerk will draw by lot the total number of jurors necessary to select the trial panel.  As each prospective juror is called, the court will determine whether the prospective juror should be questioned individually.  The court will question jurors individually at the bench in the presence of counsel.  Counsel shall make any challenge to a prospective juror for cause at the bench after the court has completed its examination of the prospective juror.  The court may modify this practice in any case where the court determines that such modification is warranted.

(b) Jury Panel

The jury panel shall consist of the total number of jurors needed for the jury as determined by the court plus as many additional prospective jurors as are needed to allow both sides to exercise their peremptory challenges.

(c) Peremptory Challenges

Parties shall exercise peremptory challenges at the clerk's bench out of the hearing of prospective jurors.  The parties shall alternate in exercising peremptory challenges beginning with the plaintiff or prosecutor.

(d) Foreperson

The jury shall select its own foreperson before beginning its deliberations.

47.3 Communications with Jurors

No attorney, party, or witness, acting directly or through the use of an agent, shall attempt to communicate with any juror, prospective juror, or former juror concerning the person's service as a juror without obtaining prior approval from the court.  The court will not approve a request to communicate with a juror except in extraordinary circumstances and for good cause shown.

48.1 Number of Jurors

The court shall designate at the final pretrial conference the number of jurors who will sit in any civil case.

53.1 Alternative Dispute Resolution (ADR)

(a) ADR Considered

ADR will be discussed at the preliminary pretrial conference, and the court will promote settlement efforts at every stage of the proceedings.

(b) Summary Jury Trial

(1) How Set

The court may order a summary jury trial upon written request of all counsel involved or upon the court's own initiative.  The only condition precedent to a request for a summary jury trial is that counsel shall have their case in a state of trial readiness.

(2) Procedure

The court will determine the procedure to be followed with respect to summary jury trials.

(c) Mediation

(1) Discovery Plan

The parties shall confer regarding the suitability of their case for mediation and, if applicable, include in their discovery plan (see Civil Form 2, Discovery Plan) the date by which mediation shall occur.  

(2) Joint Mediation Statement

 At any time following the submission of the discovery plan, the parties may request the court refer a case for mediation with a mediator from the court’s approved panel of mediators or any district or magistrate judge by filing a Joint Mediation Statement, setting forth the date by which they request mediation occur.

(3) Court Ordered Mediation

The court at any time may refer a case to mediation.

(4) Designation of Mediator

If the parties agree that a case should be mediated by a district or magistrate judge, such request should be made in the Discovery Plan or the Joint Mediation Statement.  If the parties intend that a mediator be selected from the court’s mediation panel, within forty-eight (48) hours of requesting a case be referred for mediation, the parties shall provide the court with a joint list of five (5) possible mediators from the panel in descending order of preference from which the court will designate the mediator. 

(5) Mediation Process

Unless otherwise ordered by the court, mediation requested through the court shall be conducted in accordance with the court's Guidelines for Mediation Program.

(6) Private Mediation

Nothing in this rule precludes parties from engaging a mediator or other neutral outside the court’s Mediation Program to facilitate resolution of a case.

History

(§ (c) added 1/1/99; §§ (b)(2) and (c) amended 1/1/00; § (c) narrative split into §§ (1) and (2) and amended 1/1/02; § (c)(2) amended 1/1/06; § (c)(1) amended 12/1/13; §§ (c)(1) and (2) amended, and §§ (c)(3)-(6) added 12/1/15)