Santa Clara — Frederick S. Chung

Source: https://santaclara.courts.ca.gov/system/files/civil/dept-5-ctj.pdf

CIVIL TRIAL PROCEDURES FOR DEPARTMENT 5 Hon. Frederick S. Chung

Your case has been assigned to Judge Frederick S. Chung in Department 5 of the Downtown Superior Courthouse (DTS) for trial. Trial is generally in session from 9:00 a.m. to 11:45 a.m. and from 1:30 to 4:30 p.m.

Pretrial Conference

The court has scheduled a pretrial conference for Monday at 9:00 a.m. Counsel or self- represented parties must appear in person, unless a prior request for a remote appearance has been made and approved. Remote appearances require advance registration on the court’s website (see https://santaclara.courts.ca.gov/remote-appearances).

At the pretrial conference, the court will address scheduling and other administrative matters related to the trial. Counsel should be prepared to address any problems or unique circumstances that could affect trial procedures and scheduling, including unavailability of witnesses, unavoidable scheduling conflicts, or requests to call witnesses out of order or for remote testimony.

Counsel should also be prepared to discuss any motions in limine. As a general rule, the court will review all of the motions in limine before the pretrial conference, unless unusual circumstances intervene.

Counsel should inform the court if counsel believes an issue will require an evidentiary hearing before trial, or if any unusual legal issue or evidentiary issue is anticipated during trial.

Contact

Attorneys should contact Department 5 by email at Department5@scscourt.org. This email address is typically monitored by the courtroom clerk between 8:30 a.m. and 4:30 p.m. Attorneys should not contact the judge directly without express permission. To avoid ex parte communications, please also copy the other parties or counsel on any email to Department 5.

General

Counsel are expected to be civil and professional with each other, as well as with the parties, witnesses, and court staff. As a reminder, the Santa Clara County Superior Court has adopted the Santa Clara County Bar Association’s Code of Professionalism as a standing order of the court. (See https://www.sccba.com/code-of-professionalism/.)

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Court Reporters

As of January 1, 2018, the court no longer has the resources to provide court reporters for civil matters. If you wish for your trial to be reported, please arrange for the retention of a court reporter in accordance with the court’s published policy. (See https://santaclara.courts.ca.gov/system/files/general/policy_re_privatelyretainedcourtreporters.p df.) If you do not retain a court reporter, the court will order counsel to meet and confer at the end of each trial day to agree on a settled statement. The settled statement will be filed in court the following day at or before 8:45 a.m. If the parties cannot agree on a settled statement, they will submit one side’s proposal redlined against the other side’s proposal. On even numbered days of the month, plaintiffs will be responsible for the submission. On odd numbered calendar days, defendants will be responsible for the submission.

The court is ordering a daily meeting because too often memories of the proceedings will fade, especially the court’s memory, if the parties wait until after the trial to prepare the settled statement.

Alternatively, the parties may elect to waive an appeal, although the court strongly advises against it.

Pretrial Submissions and Conference

Please review the court’s civil local rules pertaining to trial and related matters (primarily, Rule 9). (See https://santaclara.courts.ca.gov/system/files/rules/civil.pdf.) Counsel shall meet and confer in advance of the start of trial regarding any factual stipulations on uncontroverted matters and should submit those stipulations in writing to the court.

Jury Trials:

Unless otherwise ordered by the court, counsel in jury trials shall provide the court with courtesy hard copies of the following documents by noon on the court day before the start of trial: all in limine motions; exhibit lists, except impeachment exhibits; witness lists, except impeachment witnesses; jury instruction requests (see further discussion below); proposed verdict forms; any stipulations on factual or legal issues; a statement of the case; trial briefs; and any proposed special jury voir dire questions or proposed jury questionnaires. Please also email a courtesy copy of all e-filed documents to the court (copying all counsel). Again, the department email is department5@scscourt.org.

Any request for a case-specific jury questionnaire will be discussed at the pretrial conference. In any case in which case-specific questionnaires are to be used, prospective jurors who are not seeking a hardship will be directed to complete the questionnaire. The process for completing and returning jury questionnaires will be set by the court. Nevertheless, the responsibility for retrieving, copying, and circulating completed questionnaires to all counsel and to the court before voir dire will lie with counsel.

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Absent special circumstances, in limine and other pretrial motions are to be heard on the record prior to calling a jury panel.

Bench Trials:

Unless otherwise ordered by the court, counsel in bench trials shall provide the court with a complete hard copy of the following by noon on the court day before the start of trial: all in limine motions; exhibit lists, except impeachment exhibits; witness lists, except impeachment witnesses; any stipulations on factual or legal issues; statement of the case; and trial briefs. Please also email a courtesy copy of all e-filed documents to the court (copying all counsel). The department email is department5@scscourt.org.

All Trials:

All stipulations on uncontroverted matters shall be read into the record. Counsel are strongly encouraged to waive authentication evidence on documents where authenticity is not reasonably disputed and to stipulate to the admissibility of exhibits for which the likelihood of admission cannot be legitimately questioned.

Originals of all depositions that may be used during trial are to be lodged with the court clerk before trial begins.

Counsel must advise their clients and witnesses of the court’s in limine rulings and the obligation to abide by them.

Jury Instructions

A list of requested jury instructions (CACI) shall be submitted to the court by noon on the day before the start of trial. An edited set of instructions shall be submitted at the earliest possible time after the conclusion of in limine motions. Any non-CACI or pinpoint instructions shall be submitted in writing. The court will have a final instruction hearing before closing arguments. Counsel are responsible for providing 16-17 copies of the final instructions to the court (12 for the jury, two to three for alternates, one for the judge to read, and another copy to be filed).

Jury Selection and a Neutral Statement of the Case

Counsel shall decide at the pretrial conference whether voir dire is to be reported. If not, counsel shall stipulate that any court reporter is excused for voir dire.

Before beginning jury selection, the court will introduce the parties and counsel to the venire. The court will inform the prospective jurors of the expected length of trial, based on

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counsel’s reasonable time estimates. Time estimates should include the actual number of days the jury will spend at the courthouse, including for jury selection, the presentation of evidence, openings and closings, and a best estimate of deliberation time. If jury proceedings are bifurcated, the time estimates should also include consideration of each phase of trial.

Hardship requests of the prospective jurors will be heard by the court. The court provides hardship request forms for prospective jurors to complete, and the court will decide hardships with limited input from the parties (if any).

After hardship requests have been decided, the court will read a neutral statement of the case (ideally agreed upon at the pretrial conference) or will allow each side to present a three- minute “mini-opening statement,” if appropriate. This will be discussed at the pretrial conference.

The court will conduct the initial voir dire. Unless the parties have agreed on a questionnaire, the court will begin with the standard questions set forth below. Counsel may submit specific questions and areas of inquiry they would like the court to cover. Please make every effort to phrase questions neutrally.

Attorney voir dire time is determined by the court based on reasonable estimates given at the pretrial conference. While the court typically allows up to 30 minutes per side for the initial 18 prospective jurors and up to 10 minutes per side for each set of newly seated prospective jurors, the court may modify this, depending on the circumstances. Counsel may ask general questions to the panel at large or individual questions to a juror in any order. Jurors are to be addressed by last name or juror seat number.

The court uses a “six-pack” method for jury selection. Challenges for cause are made at sidebar after voir dire of the first 18 prospective jurors. Vacated seats in the box (the first 12 prospective jurors) will be filled from the six prospective jurors in the bottom row (the “six- pack,” starting from left to right). Peremptory challenges are permitted only for the 12 prospective jurors in the jury box. Each side receives 6 peremptory challenges. Vacated seats are filled from the “six-pack.” When the “six-pack” and another seat have been vacated as a result of challenges, the clerk will call seven new prospective jurors from the larger venire. The first 12 jurors seated after all sides have passed will be sworn and constitute the jury.

The number of alternate jurors will be determined at the pretrial conference. Each side receives one peremptory challenge per number of alternate jurors to be selected. Replacement of a sworn juror by an alternate shall be by random “lot” selection by the court.

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Pre-instructions and Opening Statements

The court will pre-instruct the jury with standard CACI instructions before opening statements.

At the pretrial conference, the court will seek time estimates from counsel for opening statements and may then set time limits. Please follow these time limits.

If a chart, photograph, or other demonstrative evidence is to be used in an opening statement, it needs to be discussed with the other side prior to the commencement of opening statements (if necessary, the court will resolve any disputes).

Additional General Matters

Counsel shall silence all mobile phones and other electronic devices and shall instruct their clients and witnesses to do the same.

Audio-Visual Equipment: If a party plans to use particular technology, including audio-visual equipment, for trial presentations, please make sure to test all equipment in advance. Plan on bringing your own extension cords, power strips, etc. When setting up technical equipment, counsel are responsible for ensuring that electrical cords and cables do not present safety hazards. Please refrain from use of duct tape to secure cords; rather, the use of cord or floor covers/mats that will not leave residue is preferred. The court does not allow for “down time” for testing equipment during jury time. Therefore, you are encouraged to come to the courtroom in advance of the trial sessions. Arrange this advance time through the courtroom clerk.

Jury Trials: Before convening in the morning and after the noon recess, trial jurors may be told to assemble in the jury assembly room on the first floor rather than returning to the courtroom, to minimize the risk that jurors may be in the presence of parties, witnesses, or counsel while waiting for the courtroom to open. Nevertheless, counsel should remind their clients and witnesses to be aware at all times of the jurors’ potential presence in the public areas of the court. Counsel are responsible for ensuring that their discussions with clients, opposing counsel, or witnesses will not result in the need to disqualify a juror.

At the conclusion of each day’s session, counsel should update the court regarding witnesses and time estimates to confirm that the trial remains on schedule.

All members of the court staff shall be treated courteously. While court is in session, the staff should be referred to as “Madam/Mr. Clerk”, “Madam/Mr. Reporter” or “Deputy.” During proceedings, all other persons shall be addressed by last name. First names (including those of opposing counsel) should not be used in front of the jury.

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Witnesses

Counsel are responsible for securing the timely presence of witnesses during the presentation of evidence. Counsel should always have present in the court building all witnesses who are anticipated to be called during that session—i.e., all witnesses for the morning or all witnesses for the afternoon. When an expert witness is to be called, it is acceptable to set a specific time for that testimony. Nevertheless, counsel should always have another witness available if any witness is delayed, or the trial moves faster than anticipated.

If jurors submit written questions to be asked of witnesses, they will be considered at side bar with the attorneys after all questioning by counsel of the witness has finished. If a juror- supplied question is appropriate, the court will ask the question, either as written or paraphrased. The court will allow appropriate and limited follow-up questioning by counsel to put the witness’s answer into context. The court will provide all written questions, whether asked of the witness or not, to the clerk to be included in the record.

Exhibits

No demonstrative exhibits, charts, diagrams, or enlargements shall be placed or held within sight of the jury or read aloud unless by stipulation of all parties or admission into evidence by the court.

The parties are directed to meet and confer to (1) avoid unnecessary duplication or repetition of exhibits, and (2) resolve foundational objections, particularly for proffered business records, to the extent possible.

For all trials, on the respective exhibit lists, please provide specific and brief descriptions that identify the substance of each proffered exhibit. General descriptions such as “Documents produced by opponent in discovery” are not sufficiently informative.

Counsel shall provide the courtroom clerk with an Exhibit List in an editable Word version.

The plaintiff's exhibits shall start with a mutually agreed upon number and proceed sequentially. Defense exhibits should be numbered starting at a mutually agreed number that will not risk overlap with plaintiff’s exhibits. If more than one side offers the same document, both shall use the same exhibit number for that document.

Unless otherwise agreed upon and approved by the court, the court requires that each party offering exhibits be prepared with multiple identical and identically pre-numbered sets of all trial exhibits (other than unique and irreproducible physical objects), one for each of the following: • The judge • The clerk • The witness

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• The other side (unless the party waives the request for a hard copy)

Accordingly, this typically means a minimum of four full sets of pre-numbered exhibits. If either party anticipates needing more than four exhibit binders, please notify the court in advance to discuss alternative arrangements. In certain circumstances, the court may permit the use of electronic exhibits instead of hard-copy binders.

Counsel shall pre-mark all exhibits before the testimony of witnesses to which they pertain, unless used for impeachment. If possible, all exhibits should be presented to the other side and marked for identification before that side’s presentation of its case. Each exhibit must be identified on the record by a witness or by stipulation. Motions to admit exhibits into evidence should be made before the witness is excused in the event of foundation objections.

If an exhibit is provided to the witness, counsel may point to or help identify the part of the exhibit to which the witness should refer but should then step back in the well. Counsel should not remain looming over the witness while he or she is testifying. This is also true when a larger exhibit such as a map or diagram is placed on the board behind the witness. Counsel should not stand behind the witness while conducting any examination.

At the close of each trial day, it is counsel’s responsibility to store all demonstrative exhibits and equipment, unless other instructions are given.

The court is unlikely to allow parties to use exhibits that were not identified and marked before trial unless they are truly rebuttal or impeachment exhibits.

Closing Instructions and Argument

In jury trials, the court will finalize jury instructions before closing arguments but will instruct the jurors after arguments.

At the pretrial conference or prior to argument, the court will seek time estimates from counsel for closing arguments and may then set time limits. Please follow these time limits.

Short recesses may be requested to set up technical equipment to be used during argument.

Jury Deliberations

The courtroom is generally closed during jury deliberations. Counsel and the parties may remain in the building or leave, but in all cases, it is the responsibility of counsel to inform the courtroom clerk where they can be reached at all times. The parties and counsel are expected to return to the courtroom within 20 minutes of being notified by the clerk that a jury issue has arisen. If there are juror questions during deliberations, the court will either

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contact counsel by a joint telephone call to discuss a potential response or request that the parties return to court if the response requires additional argument.

After Trial

If counsel wish to have an opportunity to visit with trial jurors after they have been discharged, they should let the court know.

After a verdict is rendered by the jury, the prevailing party shall prepare the judgment, unless otherwise directed by the court. The judgment shall be submitted within 5 court days after the trial is concluded.

/s/ Hon. Frederick S. Chung

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JURY PANEL QUESTIONNAIRE

1. Please state your name.

2. What is your occupation? (If retired or unemployed, what was your previous occupation?)

3. Are you married or have a significant other? If so, please tell us their occupation?

4. Do you have adult children? If so, please tell us their occupation?

5. Do you know any of the following: (a) the parties; (b) the attorneys; (c) the witnesses; (d) the judge or court staff; or (e) the other jurors? If so, please explain.

6. Do you have any beliefs or feelings toward any of the parties, attorneys, or witnesses that might be regarded as a bias or prejudice for or against any of them?

7. Have you, a family member, or close friend ever been involved in a lawsuit? (If yes, please explain how that experience shaped your views.)

8. Have you heard of, or do you know anything, about the specific facts or events in this case?

9. Do you have any interest, financial or otherwise, in the outcome of this case?

10. Have you ever served as a juror or witness? If so, was it a civil or criminal case?

11. Do you have any ethical, moral, religious, or philosophical beliefs that prevent you from being a juror in this case, or from judging someone else? If so, please explain.

12. Is there anything about the nature of this case that would make it difficult for you to be fair and impartial to both sides?

13. Would you be able to set aside any sympathy or personal opinions and decide this case based solely on the evidence and the law?

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