When Required: In accordance with General Order 21-0027 and its suspension of Local Rule 5.2(F), no courtesy copies may be submitted for filings unless the parties receive case-specific requests for copies from chambers staff.

If courtesy copies are requested, they should conform to the following requirements:

Delivery: Unless otherwise instructed by the Court, courtesy copies should be delivered by first class mail or its equivalent. Next day or otherwise expedited delivery (including delivery by messenger) is unnecessary in the normal course, and such expense is generally not justifiable. Please deliver all courtesy copies to the box outside of Room 1438 (Emily Wall's office). Please do not bring courtesy copies to chambers. A delivery confirmation signature will not be available.

Format: Courtesy copies should always be printed from ECF after electronic filing so that the copies include the ECF header. Courtesy copies should be printed on both sides of the paper whenever possible. Parties citing a deposition transcript in a brief should submit only the cited excerpts in hard copy in the condensed format, but must submit the entire transcript on ECF. The Court does not want hard copies of entire deposition transcripts. The Court prefers documents to be stapled rather than bound on the left hand side, unless the size of the document makes use of a staple impossible. All electronically filed documents should be made word searchable before being filed on ECF.

Amended Complaints should be submitted with a redline or other comparison document attached as an exhibit showing the amendments made to the previous iteration of the complaint.

When Required: In accordance with General Order 21-0027 and its suspension of Local Rule 5.2(F), no courtesy copies may be submitted for filings unless the parties receive case-specific requests for copies from chambers staff.

If courtesy copies are requested, they should conform to the following requirements:

Delivery: Unless otherwise instructed by the Court, courtesy copies should be delivered by first class mail or its equivalent. Next day or otherwise expedited delivery (including delivery by messenger) is unnecessary in the normal course, and such expense is generally not justifiable. Please deliver all courtesy copies to the box outside of Room 1438 (Emily Wall's office). Please do not bring courtesy copies to chambers. A delivery confirmation signature will not be available.

Format: Courtesy copies should always be printed from ECF after electronic filing so that the copies include the ECF header. Courtesy copies should be printed on both sides of the paper whenever possible. Parties citing a deposition transcript in a brief should submit only the cited excerpts in hard copy in the condensed format, but must submit the entire transcript on ECF. The Court does not want hard copies of entire deposition transcripts. The Court prefers documents to be stapled rather than bound on the left hand side, unless the size of the document makes use of a staple impossible. All electronically filed documents should be made word searchable before being filed on ECF.

Amended Complaints should be submitted with a redline or other comparison document attached as an exhibit showing the amendments made to the previous iteration of the complaint.

Motion Practice: Any party may challenge the admissibility of expert testimony offered by another party. The party seeking to challenge the admissibility of expert testimony shall do so by motion as soon as possible; preferably well in advance of the Final Pretrial Conference. In the motion, the moving party shall identify the specific opinion(s) that the movant seeks to exclude and the legal basis for exclusion, together with sufficient background information to provide context. The movant shall electronically file, in a searchable format, the relevant expert report(s) and, if the expert was deposed, the full transcript of the expert’s deposition.

Meet & Confer: Many expert reports cover a wide variety of opinions. As a case gets closer to trial, it often becomes clear that a number of those opinions will not be offered at trial. The parties are required to meet and confer before the filing of any Daubert motion to ensure that the subjects of the motion are only the opinions that will be offered at trial. Seeking to bar an opinion the other side has no intention of soliciting is a waste of the parties' and the Court's time.

Hearing Procedures: The Court, upon request of a party or on its own, may conduct a Daubert hearing. A Daubert hearing permits the parties to examine the challenged expert in open court to develop his or her testimony for purposes of evaluating its admissibility.

General Principles: The hearing shall be limited to the issues raised in the Daubert motion, unless the Court indicates otherwise. Although the expert at issue will testify, the hearing is not a forum to develop the expert’s testimony for any purpose other than evaluating its admissibility. The parties should avoid inquiry into undisputed issues of admissibility. The Court encourages the parties, where possible, to stipulate to any uncontested issues of admissibility, such as the expert’s qualifications, prior to the hearing. The proponent of the expert is responsible for procuring the expert’s attendance at the hearing.

 Before the Hearing: One week prior to the hearing, the parties shall file a Joint Report stating whether any party intends to present testimony from any witness other than the expert at issue. The Court does not anticipate that the parties will present any witness other than the expert at issue. The Joint Report shall also include an exhibit list and copies of any exhibits that the parties intend to use at the hearing.

 The Hearing: The hearing will proceed as follows, absent an order to the contrary: Opening Remarks (brief; if requested); Direct Examination (proponent); Cross Examination (movant); Re-Direct Examination (if requested); Re-Cross Examination (if requested); Closing Remarks (brief; if requested).

 After the Hearing: The parties shall not file post-hearing briefs, unless ordered to do so by the Court.

Motion Practice: Any party may challenge the admissibility of expert testimony offered by another party. The party seeking to challenge the admissibility of expert testimony shall do so by motion as soon as possible; preferably well in advance of the Final Pretrial Conference. In the motion, the moving party shall identify the specific opinion(s) that the movant seeks to exclude and the legal basis for exclusion, together with sufficient background information to provide context. The movant shall electronically file, in a searchable format, the relevant expert report(s) and, if the expert was deposed, the full transcript of the expert’s deposition.

Meet & Confer: Many expert reports cover a wide variety of opinions. As a case gets closer to trial, it often becomes clear that a number of those opinions will not be offered at trial. The parties are required to meet and confer before the filing of any Daubert motion to ensure that the subjects of the motion are only the opinions that will be offered at trial. Seeking to bar an opinion the other side has no intention of soliciting is a waste of the parties' and the Court's time.

Hearing Procedures: The Court, upon request of a party or on its own, may conduct a Daubert hearing. A Daubert hearing permits the parties to examine the challenged expert in open court to develop his or her testimony for purposes of evaluating its admissibility.

General Principles: The hearing shall be limited to the issues raised in the Daubert motion, unless the Court indicates otherwise. Although the expert at issue will testify, the hearing is not a forum to develop the expert’s testimony for any purpose other than evaluating its admissibility. The parties should avoid inquiry into undisputed issues of admissibility. The Court encourages the parties, where possible, to stipulate to any uncontested issues of admissibility, such as the expert’s qualifications, prior to the hearing. The proponent of the expert is responsible for procuring the expert’s attendance at the hearing.

 Before the Hearing: One week prior to the hearing, the parties shall file a Joint Report stating whether any party intends to present testimony from any witness other than the expert at issue. The Court does not anticipate that the parties will present any witness other than the expert at issue. The Joint Report shall also include an exhibit list and copies of any exhibits that the parties intend to use at the hearing.

 The Hearing: The hearing will proceed as follows, absent an order to the contrary: Opening Remarks (brief; if requested); Direct Examination (proponent); Cross Examination (movant); Re-Direct Examination (if requested); Re-Cross Examination (if requested); Closing Remarks (brief; if requested).

 After the Hearing: The parties shall not file post-hearing briefs, unless ordered to do so by the Court.

Discovery Motions:

The Court believes that parties can and should work out most discovery disputes and thus discourages the filing of discovery motions.  The Court will not hear or consider any discovery motion or non-dispositive dispute unless the movant has complied with the "meet and confer" requirement of Local Rule 37.2. The motion must state with specificity when and how the movant complied with Local Rule 37.2. Parties are reminded that compliance with Local Rule 37.2 requires a good faith effort to resolve discovery disputes and communication that takes place face to face or by telephone. The exchange of correspondence will not normally be sufficient to comply with Local Rule 37.2.

All parties should be fully prepared to argue any discovery motion on the date that it is presented. The Court most often will rule on discovery motions after hearing argument at the motion call and without briefing.  If after hearing argument, the Court believes that the motion requires briefing, the Court normally will set an expedited briefing schedule so that the matter can be resolved promptly.

Parties are reminded to immediately notify the Court if they are withdrawing any previously filed discovery motions.

Parties are reminded that there is no "order" in which discovery must occur, and that one party's failure or inability to respond to discovery will not excuse any other party's prompt compliance. Parties are also reminded that the pendency of a motion, such as a motion to dismiss, does not operate as a stay of discovery absent explicit order of the Court.

Boilerplate Language:

Boilerplate "instructions" shall not be used in interrogatories and document requests. These unduly detailed instructions rarely accomplish anything useful and serve merely to add unnecessarily to the cost of litigation, especially where they give rise to disputes. Interrogatories and document requests should be framed with clarity, so that no instructions are necessary. In the exceptional case where instructions might be necessary, they should be concise and specific to the problem presented by the particular interrogatory. Boilerplate instructions may be regarded as surplusage and need not be considered in responding to the interrogatories or document requests.

E-Discovery:

If the parties have reached an impasse regarding the discovery of voluminous records from a database, server, computer, service provider or similar electronic storage facility (ESF), before filing a motion to compel, the parties are required to meet and confer with an IT representative of the ESF to be searched in order to determine the most effective way to retrieve the requested material. The party seeking the discovery should also bring its IT specialist to this meeting in order to discuss the proper format for the retrieval of the records. This electronic discovery conference must take place in person and both sides should be prepared to discuss specifically the parameters of both the search and the ESF.

Discovery Motions:

The Court believes that parties can and should work out most discovery disputes and thus discourages the filing of discovery motions.  The Court will not hear or consider any discovery motion or non-dispositive dispute unless the movant has complied with the "meet and confer" requirement of Local Rule 37.2. The motion must state with specificity when and how the movant complied with Local Rule 37.2. Parties are reminded that compliance with Local Rule 37.2 requires a good faith effort to resolve discovery disputes and communication that takes place face to face or by telephone. The exchange of correspondence will not normally be sufficient to comply with Local Rule 37.2.

All parties should be fully prepared to argue any discovery motion on the date that it is presented. The Court most often will rule on discovery motions after hearing argument at the motion call and without briefing.  If after hearing argument, the Court believes that the motion requires briefing, the Court normally will set an expedited briefing schedule so that the matter can be resolved promptly.

Parties are reminded to immediately notify the Court if they are withdrawing any previously filed discovery motions.

Parties are reminded that there is no "order" in which discovery must occur, and that one party's failure or inability to respond to discovery will not excuse any other party's prompt compliance. Parties are also reminded that the pendency of a motion, such as a motion to dismiss, does not operate as a stay of discovery absent explicit order of the Court.

Boilerplate Language:

Boilerplate "instructions" shall not be used in interrogatories and document requests. These unduly detailed instructions rarely accomplish anything useful and serve merely to add unnecessarily to the cost of litigation, especially where they give rise to disputes. Interrogatories and document requests should be framed with clarity, so that no instructions are necessary. In the exceptional case where instructions might be necessary, they should be concise and specific to the problem presented by the particular interrogatory. Boilerplate instructions may be regarded as surplusage and need not be considered in responding to the interrogatories or document requests.

E-Discovery:

If the parties have reached an impasse regarding the discovery of voluminous records from a database, server, computer, service provider or similar electronic storage facility (ESF), before filing a motion to compel, the parties are required to meet and confer with an IT representative of the ESF to be searched in order to determine the most effective way to retrieve the requested material. The party seeking the discovery should also bring its IT specialist to this meeting in order to discuss the proper format for the retrieval of the records. This electronic discovery conference must take place in person and both sides should be prepared to discuss specifically the parameters of both the search and the ESF.

Motions should not be noticed for presentment in accordance with Local Rule 5.3(b). Instead, counsel must confer prior to the filing of all motions and include an agreed briefing schedule with the motion if at all possible. If agreement cannot be reached, the parties should indicate their positions on scheduling in a joint submission filed with the motion. The Court will then review the motion and any joint submission to determine the appropriate briefing schedule and whether a hearing is necessary. A hearing is presumptively necessary in cases involving pro se parties. If Judge Durkin determines a hearing is necessary, it will be scheduled by chambers. 

Unless otherwise ordered by the Court, briefs in support of or opposition to a motion should be no more than 15 pages, and reply briefs should be no more than 10.

Requirements

Before filing a motion, the movant's counsel must ask opposing counsel whether there is an objection to the motion. If there is an objection, movant must note that fact in the body of the motion. Joint, uncontested, and agreed motions should be so identified in both the title and the body of the motion. Many of those motions will be granted without appearance, so counsel should check the docket before coming to Court. Motions for extension of time shall indicate: (i) the reason for the request, and (ii) the number of previous extensions. Trial dates and discovery cutoff dates generally will not be reset except by written motion, and will generally require a court appearance.

Courtesy Copies

When Required: Courtesy copies should not be submitted unless specifically requested by chambers staff.

Delivery: If courtesy copies are requested, they should be delivered by first class mail or its equivalent. Next day or otherwise expedited delivery (including delivery by messenger) is unnecessary in the normal course, and such expense is generally not justifiable. Please deliver all courtesy copies to the box outside of Room 1438 (Emily Wall's office). Please do not bring courtesy copies to chambers. A delivery confirmation signature will not be available.

Format: Courtesy copies should always be printed from ECF after electronic filing so that the copies include the ECF header. Courtesy copies should be printed on both sides of the paper whenever possible. Parties citing a deposition transcript in a brief should submit only the cited excerpts in hard copy in the condensed format, but must file the entire transcript on ECF. The Court does not want hard copies of entire deposition transcripts. All documents should be made word searchable before being filed on ECF. The Court prefers documents to be stapled rather than bound on the left hand side, unless the size of the document makes use of a staple impossible.

Citations

The Court prefers that citations to unpublished opinions be Westlaw citations. To the extent possible, briefs and other filings (such as Rule 56.1 statements of fact) should cite exhibits by the ECF docket number and page, not exhibit number.

Motions should not be noticed for presentment in accordance with Local Rule 5.3(b). Instead, counsel must confer prior to the filing of all motions and include an agreed briefing schedule with the motion if at all possible. If agreement cannot be reached, the parties should indicate their positions on scheduling in a joint submission filed with the motion. The Court will then review the motion and any joint submission to determine the appropriate briefing schedule and whether a hearing is necessary. A hearing is presumptively necessary in cases involving pro se parties. If Judge Durkin determines a hearing is necessary, it will be scheduled by chambers. 

Unless otherwise ordered by the Court, briefs in support of or opposition to a motion should be no more than 15 pages, and reply briefs should be no more than 10.

Requirements

Before filing a motion, the movant's counsel must ask opposing counsel whether there is an objection to the motion. If there is an objection, movant must note that fact in the body of the motion. Joint, uncontested, and agreed motions should be so identified in both the title and the body of the motion. Many of those motions will be granted without appearance, so counsel should check the docket before coming to Court. Motions for extension of time shall indicate: (i) the reason for the request, and (ii) the number of previous extensions. Trial dates and discovery cutoff dates generally will not be reset except by written motion, and will generally require a court appearance.

Courtesy Copies

When Required: Courtesy copies should not be submitted unless specifically requested by chambers staff.

Delivery: If courtesy copies are requested, they should be delivered by first class mail or its equivalent. Next day or otherwise expedited delivery (including delivery by messenger) is unnecessary in the normal course, and such expense is generally not justifiable. Please deliver all courtesy copies to the box outside of Room 1438 (Emily Wall's office). Please do not bring courtesy copies to chambers. A delivery confirmation signature will not be available.

Format: Courtesy copies should always be printed from ECF after electronic filing so that the copies include the ECF header. Courtesy copies should be printed on both sides of the paper whenever possible. Parties citing a deposition transcript in a brief should submit only the cited excerpts in hard copy in the condensed format, but must file the entire transcript on ECF. The Court does not want hard copies of entire deposition transcripts. All documents should be made word searchable before being filed on ECF. The Court prefers documents to be stapled rather than bound on the left hand side, unless the size of the document makes use of a staple impossible.

Citations

The Court prefers that citations to unpublished opinions be Westlaw citations. To the extent possible, briefs and other filings (such as Rule 56.1 statements of fact) should cite exhibits by the ECF docket number and page, not exhibit number.

The Court will set all newly-filed and reassigned cases for an initial status hearing. If the defendant(s) have not been served by the initial status date, counsel for plaintiff is to contact the Courtroom Deputy, Emily Wall, to reschedule the status hearing and the date for filing an initial status report.

If no defendant has appeared, or plaintiff is seeking a default, no status report is required.

The Court will also order the parties in all newly-filed and reassigned cases--except new cases concerning John Doe copyright infringement actions--to file electronically prior to the initial status hearing a joint written status report, not to exceed three pages in length. The status report shall provide information about the case using the appropriate format described below.

Too often litigants are unaware of the efficiencies to be gained by having their cases tried before United States Magistrate Judges. Because they do not conduct felony criminal trials, they can often schedule civil trials more expeditiously than this Court. The Court strongly encourages counsel to inform their clients of this option, and to discuss it with opposing counsel. Click here for the Magistrate Judge Consent Form.

I.    New Case Status Report Format (see below for Reassigned Case Format):

(1) The Nature of the Case

1. Identify the attorneys of record for each party, including the lead trial attorneys.

2. State the basis for federal jurisdiction.

3. Describe the nature of the claims asserted in the complaint and any counterclaims, including relief sought.

(2) Pending Motions and Case Plan

1. Identify any pending motions.

2. Submit a proposal for a discovery plan, including the following information:

   1. The general type of discovery needed;

   2. A date to issue written discovery;

   3. If there will be expert discovery relevant to dispositive liability motions, an expert discovery completion date, including dates for the delivery of expert reports;

   4. A liability discovery completion date;

   5. A deadline to amend pleadings;

   6.  Scheduling of expert discovery relevant to damages should be deferred until it becomes necessary for a hearing or trial. The parties may suggest that expert discovery relevant to damages be scheduled sooner if they believe it is necessary. Generally, the time and expense of expert damage discovery should not be taken until any dispositive motions have been decided, or the parties agree that no such motions will be filed.

   7. A deadline for filing summary judgment motions should not be included. The Court will set that deadline in consultation with the parties after the close of discovery.

   8.  The Court generally approves parties' jointly proposed discovery plans, because the Court trusts that the parties will devise a schedule that both moves the case forward in an efficient manner and takes into account the parties' and counsel's other obligations. Since the Court will be generous in this regard, the Court will be reluctant to grant any extensions of this schedule.

3. E-Discovery

   1. Indicate whether discovery will encompass electronically stored information, and the parties’ plan to ensure that such discovery proceeds appropriately; and

   2. Indicate whether the parties anticipate any electronic discovery disputes.        

4. Indicate whether a jury trial is requested and the probable length of trial.

(3) Consent to Proceed Before a Magistrate Judge

1. Indicate whether the parties consent unanimously to proceed before a Magistrate Judge for all matters in the case, including dispositive motions and trial.

(4) Status of Settlement Discussions

1. Indicate whether any settlement discussions have occurred, and if so, the status of those discussion. Unless it is impossible due to the uncertainty of damages, plaintiffs should have made a demand by the first status conference.

2. Whether the parties request a settlement conference before the Magistrate Judge assigned to the case.

II.   Reassigned Case Status Report Format:

(1) Nature of the Case

1. Attorneys of record for each party.

2. Basis for federal jurisdiction.

3. Nature of the claim(s) and any counterclaim(s), including relief sought.

(2) Proceedings to Date and Discovery

1. Summary of discovery that has been taken and remains to be taken.

2. Depositions - approximate number taken and estimated number still to be taken.

3. Discovery cut-off date, and whether that date will be met. If no discovery cut-off date has been set, please suggest one.

4. Deadline to amend the pleadings. If no such date has been set, please suggest one.

(3) Pending Motions

1. Description of all pending motions, and any briefing schedule set.

2. Summary of all substantive rulings that have been entered.

(4) Trial

1. Whether there has been a jury demand.

2. Whether a trial date has been set; if not, the earliest date the parties anticipate being able to commence a trial.

3. Whether a final pretrial order has been filed; if not, whether there is a deadline for filing a final pretrial order.

4. Estimated length of trial.

(5) Referrals and Settlement

1. The assigned magistrate judge and whether the parties have discussed consenting to having the magistrate judge conduct all further proceedings in the case, including trial.

2. Whether any settlement discussions have occurred, the status of any such discussions, and whether referral to the magistrate judge for assistance in settlement would be helpful. 

The Court will set all newly-filed and reassigned cases for an initial status hearing. If the defendant(s) have not been served by the initial status date, counsel for plaintiff is to contact the Courtroom Deputy, Emily Wall, to reschedule the status hearing and the date for filing an initial status report.

If no defendant has appeared, or plaintiff is seeking a default, no status report is required.

The Court will also order the parties in all newly-filed and reassigned cases--except new cases concerning John Doe copyright infringement actions--to file electronically prior to the initial status hearing a joint written status report, not to exceed three pages in length. The status report shall provide information about the case using the appropriate format described below.

Too often litigants are unaware of the efficiencies to be gained by having their cases tried before United States Magistrate Judges. Because they do not conduct felony criminal trials, they can often schedule civil trials more expeditiously than this Court. The Court strongly encourages counsel to inform their clients of this option, and to discuss it with opposing counsel. Click here for the Magistrate Judge Consent Form.

I.    New Case Status Report Format (see below for Reassigned Case Format):

(1) The Nature of the Case

1. Identify the attorneys of record for each party, including the lead trial attorneys.

2. State the basis for federal jurisdiction.

3. Describe the nature of the claims asserted in the complaint and any counterclaims, including relief sought.

(2) Pending Motions and Case Plan

1. Identify any pending motions.

2. Submit a proposal for a discovery plan, including the following information:

   1. The general type of discovery needed;

   2. A date to issue written discovery;

   3. If there will be expert discovery relevant to dispositive liability motions, an expert discovery completion date, including dates for the delivery of expert reports;

   4. A liability discovery completion date;

   5. A deadline to amend pleadings;

   6.  Scheduling of expert discovery relevant to damages should be deferred until it becomes necessary for a hearing or trial. The parties may suggest that expert discovery relevant to damages be scheduled sooner if they believe it is necessary. Generally, the time and expense of expert damage discovery should not be taken until any dispositive motions have been decided, or the parties agree that no such motions will be filed.

   7. A deadline for filing summary judgment motions should not be included. The Court will set that deadline in consultation with the parties after the close of discovery.

   8.  The Court generally approves parties' jointly proposed discovery plans, because the Court trusts that the parties will devise a schedule that both moves the case forward in an efficient manner and takes into account the parties' and counsel's other obligations. Since the Court will be generous in this regard, the Court will be reluctant to grant any extensions of this schedule.

3. E-Discovery

   1. Indicate whether discovery will encompass electronically stored information, and the parties’ plan to ensure that such discovery proceeds appropriately; and

   2. Indicate whether the parties anticipate any electronic discovery disputes.        

4. Indicate whether a jury trial is requested and the probable length of trial.

(3) Consent to Proceed Before a Magistrate Judge

1. Indicate whether the parties consent unanimously to proceed before a Magistrate Judge for all matters in the case, including dispositive motions and trial.

(4) Status of Settlement Discussions

1. Indicate whether any settlement discussions have occurred, and if so, the status of those discussion. Unless it is impossible due to the uncertainty of damages, plaintiffs should have made a demand by the first status conference.

2. Whether the parties request a settlement conference before the Magistrate Judge assigned to the case.

II.   Reassigned Case Status Report Format:

(1) Nature of the Case

1. Attorneys of record for each party.

2. Basis for federal jurisdiction.

3. Nature of the claim(s) and any counterclaim(s), including relief sought.

(2) Proceedings to Date and Discovery

1. Summary of discovery that has been taken and remains to be taken.

2. Depositions - approximate number taken and estimated number still to be taken.

3. Discovery cut-off date, and whether that date will be met. If no discovery cut-off date has been set, please suggest one.

4. Deadline to amend the pleadings. If no such date has been set, please suggest one.

(3) Pending Motions

1. Description of all pending motions, and any briefing schedule set.

2. Summary of all substantive rulings that have been entered.

(4) Trial

1. Whether there has been a jury demand.

2. Whether a trial date has been set; if not, the earliest date the parties anticipate being able to commence a trial.

3. Whether a final pretrial order has been filed; if not, whether there is a deadline for filing a final pretrial order.

4. Estimated length of trial.

(5) Referrals and Settlement

1. The assigned magistrate judge and whether the parties have discussed consenting to having the magistrate judge conduct all further proceedings in the case, including trial.

2. Whether any settlement discussions have occurred, the status of any such discussions, and whether referral to the magistrate judge for assistance in settlement would be helpful. 

The Local Patent Rules of course apply to all cases regarding utility patents filed in this District. It is Judge Durkin’s practice, however, to hold an informal, off the record meeting in chambers with the attorneys for the parties as soon as possible after all parties have counsel who have filed appearances in utility patent cases. All discussions at the meeting will be inadmissible in any later proceeding under Federal Rule of Evidence 408. The purpose of the meeting is to see whether an early resolution of the case, or a narrowing or prioritizing of the contested issues can occur before any scheduling order is prepared by the parties. No position papers or other briefs should be filed in advance of the meeting, which will last an hour or less. No clients are required to attend, as this is not a settlement conference. Out of town counsel are permitted to appear by phone. Plaintiffs’ counsel shall call Judge Durkin’s courtroom deputy, Emily Wall, after summons has been executed in order to begin discussions about the scheduling of this meeting. No answer to the complaint is required until after this meeting, which is intended to minimize the costs of this uniquely expensive kind of litigation. This procedure does not apply to to design patent cases.

In any motion a for temporary restraining order or preliminary injunction in a utility patent case, Plaintiffs should not seek an asset restraint unless Plaintiffs can show that the Court’s order in case 24-cv-1211 at Docket No. 67 does not apply.

The Local Patent Rules of course apply to all cases regarding utility patents filed in this District. It is Judge Durkin’s practice, however, to hold an informal, off the record meeting in chambers with the attorneys for the parties as soon as possible after all parties have counsel who have filed appearances in utility patent cases. All discussions at the meeting will be inadmissible in any later proceeding under Federal Rule of Evidence 408. The purpose of the meeting is to see whether an early resolution of the case, or a narrowing or prioritizing of the contested issues can occur before any scheduling order is prepared by the parties. No position papers or other briefs should be filed in advance of the meeting, which will last an hour or less. No clients are required to attend, as this is not a settlement conference. Out of town counsel are permitted to appear by phone. Plaintiffs’ counsel shall call Judge Durkin’s courtroom deputy, Emily Wall, after summons has been executed in order to begin discussions about the scheduling of this meeting. No answer to the complaint is required until after this meeting, which is intended to minimize the costs of this uniquely expensive kind of litigation. This procedure does not apply to to design patent cases.

In any motion a for temporary restraining order or preliminary injunction in a utility patent case, Plaintiffs should not seek an asset restraint unless Plaintiffs can show that the Court’s order in case 24-cv-1211 at Docket No. 67 does not apply.

At least one week before a criminal trial, the parties will be scheduled to appear for a pretrial conference. The Defendant(s) must be present for the conference unless his presence is personally waived at a prior court proceeding.

I.  Final Pretrial Submissions

The following should be filed five business days before the conference, unless otherwise indicated:

The Court will read this statement to the jury during voir dire.

Separate lists for each side, noting witnesses who will be called to testify and witnesses who may be called to testify

For each witness, provide a very concise (2 or 3 sentences maximum) description of the witness and the witness’s role in the case.

The Court will read the names of witnesses on these lists during jury selection.

A list by each side of all exhibits the party will definitely use at trial (including demonstratives, summaries or other specially prepared exhibits), which includes the following:

1. the exhibit number for each document;
2. the date of the document;
3. a brief description of the document and a concise statement of the exhibit’s relevance;
4. whether there is an objection to admission of the document and, if so, a concise statement of the basis for the objection (e.g., Rule 403—undue prejudice or confusion; Rule 802—hearsay); and
5. a concise statement of the asserted basis of admissibility, if there is an objection.

At least one week before the pretrial conference, the parties must provide the court with two sets of exhibit binders containing copies of the objected-to representative exhibits. If the representative exhibits require more than a single binder, the parties must contact the Courtroom Deputy, Emily Wall, to explain why additional binders are required. After the pretrial conference and rulings on exhibits, two binders of the final exhibits will be required to be given to the Court no later than the day before trial. Each binder should also include a summary checklist page for the Court to track admission of exhibits during trial.

Note: There is no need to list every conceivable exhibit that can possibly be used. The parties should submit a list of trial exhibits they definitely intend to introduce. Exhibits not likely to be used need not be listed. If, due to unforeseen circumstances during trial a party wishes to introduce an exhibit not previously listed, notice should be given as soon as possible to the opposing side and to the Court so that any objections can be discussed. Absent abuse of this process, an exhibit will not be deemed inadmissible simply because it was not included on the original exhibit list, provided the exhibit/document was earlier produced to the opposing side during discovery.

The parties are directed to meet and confer on all motions in limine before filing them and determine which motions, if any, are unopposed and do not need to be filed. The parties should bring any unopposed motions in limine to the Court's attention at the pre-trial conference.

Unless otherwise ordered, all motions in limine must be filed three weeks before the final pre-trial conference. Responses are due one week before the the final pre-trial conference. No replies should be filed unless ordered by the Court. Parties filing multiple motions in limine should submit their initial motions and the supporting exhibits in one document for the Court. Responses to motions in limine should also be submitted in one document.

To the extent possible, the Court prefers that most questions asked of potential jurors be included in a written questionnaire (of no more than two pages) as it encourages reflection and candor. Sample questions are provided below in section II.1 addressing jury selection procedures. To propose questions that should be included in the written questionnaire distributed to the venire, as well as questions the Court should ask orally, the parties must file a joint document that includes both: (1) joint questions in the form of a questionnaire; (2) a list of questions to be asked orally; and (3) proposed questions to which one party objects, and a short basis for the objection.

See Pattern Criminal Jury Instructions 

If the parties wish to modify a 7th Circuit Pattern Jury Instruction, the party proposing the modification must submit a redline to the Court showing the modification to the pattern instruction. The parties should concentrate their efforts on the substantive jury instructions related to the merits.

Each proposed instruction must indicate the proponent of the instruction and whether the instruction is agreed or disputed. The bottom of each instruction must identify the legal authority supporting the instruction. If an instruction is disputed, the grounds for the objection (and any proposed modification or alternate instruction) must be concisely stated on the same page immediately following the disputed instruction. The party proposing the instruction may then state concisely the reasons supporting the instruction as proposed.

It is the Court’s practice to provide the jury with all jury instructions (including issue instructions) and display the proposed verdict form before opening statements. This requires that instructions initially be drafted using tenses that reflect the fact that the jury has not yet heard any evidence or argument. The parties, however, will be free to propose amendments to the final jury instructions and verdict form based on the evidence as it is actually presented at trial. The Court will also read the final instructions prior to closing arguments. Jury instructions may be used and electronically projected during opening statements and closing arguments.

7. Evidence Projection Systems.

Judge Durkin’s courtroom (1441) is equipped with a digital evidence projection system. The Court expects trial counsel to use this system. As early as possible prior to trial (not less than four weeks), counsel should contact Alexander Zeier, the Courtroom Technology Administrator, to schedule a training session. Mr. Zeier can be reached at (312) 435-6045.

II.  Additional Pretrial Information

(1) Jury Selection:

On the morning of jury selection, prior to entering the courtroom, the venire will be given a written questionnaire with questions proposed by the parties and approved by the Court. Sample questions are included in the attached documents below. These are examples only, and will require revision for each particular case. Although some of these documents include more than two pages, the Court generally restricts questionnaires to a maximum of two pages, and the parties submissions should not include more than two pages of questions. The parties will be given copies of the jurors' written answers. The parties will also be given a copy of the list of potential jurors that is generated by the Clerk's Office.

Sample Criminal Questionnaire

The entire venire will then enter the courtroom and be sworn. The first twelve prospective jurors from the list will be called and seated in the jury box. The Court will question each prospective juror about their answers to the questionnaire. The Court will then ask the jurors the questions the parties and the Court determined at the final pretrial conference should be asked orally. Jurors will be given the opportunity to answer sensitive questions at sidebar if they wish.

The parties will then be given the opportunity to question the prospective jurors. The Court will then go to sidebar to hear challenges for cause and rule on those challenges.

A new group of twelve potential jurors will then be called in the order from the list to the jury box. The first 12 non-challenged jurors and (typically) 2 alernates will be seated. The same procedure will be followed until the entire venire has been questioned.

The parties will then submit peremptory challenges in writing simultaneously. The government is allowed 6 challenges and the defendant is allowed 10, pursuant to Federal Rule of Criminal Procedure 24, unless otherwise requested and approved by the Court. If the parties challenge the same juror, only one side will be charged for that challenge, beginning first with the government, and alternating between the parties for all later joint challenges. Once peremptory challenges have been submitted, the challenged prospective jurors will be excused. The remaining jurors will constitute part of the jury and cannot be stricken with later challenges. (No back-strikes will be allowed.) The remaining jurors will be asked to leave the jury box and sit in a separate area of the gallery.  

(2) Instructions for Trial Counsel: Please Read Carefully

Your compliance with the following requests will be greatly appreciated:

(i) Please be on time for each court session. Trial engagements take precedence over any other business. If you have matters in other courtrooms, arrange in advance to have them continued or have a colleague handle them for you.

(ii) Court time may not be used for marking exhibits. This must be done in advance of the court session.

(iii) Please stand whenever you address the court. This includes the making of objections.

(iv) Please speak into the microphone whenever speaking on the record in court. A portable microphone is available is counsel wishes to move away from the stationary microphones.

(v) In your opening statement to the jury, do not argue the case. Confine yourself to a concise summary of the important facts.

(vi) Please stand when you question witnesses. (Counsel with physical disabilities will be excused from this requirement.)

(vii) On direct examination, if you intend to question a witness about a group of documents, avoid delay by having all the documents given to the witness when you start the examination.

(viii) When you object in the presence of the jury, make your objection short and to the point. Do not argue the objection in the presence of the jury, and do not argue with the ruling of the court in the presence of the jury. Such matters may be raised at the first recess and will not be waived by waiting until the recess.

(ix) Do not ask the court in the presence of the jury to declare that a witness is qualified as an expert or qualified to express an expert opinion.

(x) It is not necessary to request leave of court to approach a witness to show the witness an exhibit.

(xi) Do not ask for a recess before cross-examination. If the direct examination should end at about the time the court would recess anyway, e.g., lunch time, a recess will be taken. Otherwise, be prepared to commence cross-examination immediately upon conclusion of the direct.

(xii) Upon completion of a witness’s testimony in civil trials, jurors are permitted to submit written questions for the witness in accordance with procedures to be discussed at the Final Pretrial Conference. Such questioning by the jurors will also be permitted in criminal trials if all parties agree. The government and defense counsel should discuss this issue with the Court at the Final Pre-trial Conference.

(xiii) The Court permits interim statements if appropriate due to the length of the trial.

(xiv) Counsel are not permitted to contact jurors after trial without permission of the Court.

Thank you in advance for your cooperation.

(3) Final Pretrial Conference Topics

The following is a list of topics Judge Durkin will address during the final pre-trial conference. Counsel need only be prepared to discuss the topics that are also referenced in the final pretrial order. The remaining topics in the list below reference particular practices Judge Durkin will explain during the final pre-trial conference.

1. voir dire
2. written juror questionnaire
3. jury lists – alphabetical and random agreed
4. statement of case – short enough to fit on letter to jurors
5. motions in limine – agreed matters and preparation of order on rulings
6. exhibits: (i) pre-mark all; (ii) stipulate to as many as possible; (iii) seek admission outside jury’s presence; (iv) must be admitted before displayed on screen
7. demonstratives and timelines
8. schedule for submission of disputed deposition designations
9. trial day
10. elevators
11. sidebars
12. trial technology – make sure to test it outside the presence of the jury
13. preliminary instructions and issue instructions before opening
14. instructions before closing (can project on screen)
15. interim statements
16. note pads
17. jury binders
18. jury questions
19. moving around courtroom
20. can always approach witness without permission
21. no speaking objections, unless requested; just – irrelevant, asked and answered, hearsay
22. talking to jury after verdict

At least one week before a criminal trial, the parties will be scheduled to appear for a pretrial conference. The Defendant(s) must be present for the conference unless his presence is personally waived at a prior court proceeding.

I.  Final Pretrial Submissions

The following should be filed five business days before the conference, unless otherwise indicated:

The Court will read this statement to the jury during voir dire.

Separate lists for each side, noting witnesses who will be called to testify and witnesses who may be called to testify

For each witness, provide a very concise (2 or 3 sentences maximum) description of the witness and the witness’s role in the case.

The Court will read the names of witnesses on these lists during jury selection.

A list by each side of all exhibits the party will definitely use at trial (including demonstratives, summaries or other specially prepared exhibits), which includes the following:

1. the exhibit number for each document;
2. the date of the document;
3. a brief description of the document and a concise statement of the exhibit’s relevance;
4. whether there is an objection to admission of the document and, if so, a concise statement of the basis for the objection (e.g., Rule 403—undue prejudice or confusion; Rule 802—hearsay); and
5. a concise statement of the asserted basis of admissibility, if there is an objection.

At least one week before the pretrial conference, the parties must provide the court with two sets of exhibit binders containing copies of the objected-to representative exhibits. If the representative exhibits require more than a single binder, the parties must contact the Courtroom Deputy, Emily Wall, to explain why additional binders are required. After the pretrial conference and rulings on exhibits, two binders of the final exhibits will be required to be given to the Court no later than the day before trial. Each binder should also include a summary checklist page for the Court to track admission of exhibits during trial.

Note: There is no need to list every conceivable exhibit that can possibly be used. The parties should submit a list of trial exhibits they definitely intend to introduce. Exhibits not likely to be used need not be listed. If, due to unforeseen circumstances during trial a party wishes to introduce an exhibit not previously listed, notice should be given as soon as possible to the opposing side and to the Court so that any objections can be discussed. Absent abuse of this process, an exhibit will not be deemed inadmissible simply because it was not included on the original exhibit list, provided the exhibit/document was earlier produced to the opposing side during discovery.

The parties are directed to meet and confer on all motions in limine before filing them and determine which motions, if any, are unopposed and do not need to be filed. The parties should bring any unopposed motions in limine to the Court's attention at the pre-trial conference.

Unless otherwise ordered, all motions in limine must be filed three weeks before the final pre-trial conference. Responses are due one week before the the final pre-trial conference. No replies should be filed unless ordered by the Court. Parties filing multiple motions in limine should submit their initial motions and the supporting exhibits in one document for the Court. Responses to motions in limine should also be submitted in one document.

To the extent possible, the Court prefers that most questions asked of potential jurors be included in a written questionnaire (of no more than two pages) as it encourages reflection and candor. Sample questions are provided below in section II.1 addressing jury selection procedures. To propose questions that should be included in the written questionnaire distributed to the venire, as well as questions the Court should ask orally, the parties must file a joint document that includes both: (1) joint questions in the form of a questionnaire; (2) a list of questions to be asked orally; and (3) proposed questions to which one party objects, and a short basis for the objection.

See Pattern Criminal Jury Instructions 

If the parties wish to modify a 7th Circuit Pattern Jury Instruction, the party proposing the modification must submit a redline to the Court showing the modification to the pattern instruction. The parties should concentrate their efforts on the substantive jury instructions related to the merits.

Each proposed instruction must indicate the proponent of the instruction and whether the instruction is agreed or disputed. The bottom of each instruction must identify the legal authority supporting the instruction. If an instruction is disputed, the grounds for the objection (and any proposed modification or alternate instruction) must be concisely stated on the same page immediately following the disputed instruction. The party proposing the instruction may then state concisely the reasons supporting the instruction as proposed.

It is the Court’s practice to provide the jury with all jury instructions (including issue instructions) and display the proposed verdict form before opening statements. This requires that instructions initially be drafted using tenses that reflect the fact that the jury has not yet heard any evidence or argument. The parties, however, will be free to propose amendments to the final jury instructions and verdict form based on the evidence as it is actually presented at trial. The Court will also read the final instructions prior to closing arguments. Jury instructions may be used and electronically projected during opening statements and closing arguments.

7. Evidence Projection Systems.

Judge Durkin’s courtroom (1441) is equipped with a digital evidence projection system. The Court expects trial counsel to use this system. As early as possible prior to trial (not less than four weeks), counsel should contact Alexander Zeier, the Courtroom Technology Administrator, to schedule a training session. Mr. Zeier can be reached at (312) 435-6045.

II.  Additional Pretrial Information

(1) Jury Selection:

On the morning of jury selection, prior to entering the courtroom, the venire will be given a written questionnaire with questions proposed by the parties and approved by the Court. Sample questions are included in the attached documents below. These are examples only, and will require revision for each particular case. Although some of these documents include more than two pages, the Court generally restricts questionnaires to a maximum of two pages, and the parties submissions should not include more than two pages of questions. The parties will be given copies of the jurors' written answers. The parties will also be given a copy of the list of potential jurors that is generated by the Clerk's Office.

Sample Criminal Questionnaire

The entire venire will then enter the courtroom and be sworn. The first twelve prospective jurors from the list will be called and seated in the jury box. The Court will question each prospective juror about their answers to the questionnaire. The Court will then ask the jurors the questions the parties and the Court determined at the final pretrial conference should be asked orally. Jurors will be given the opportunity to answer sensitive questions at sidebar if they wish.

The parties will then be given the opportunity to question the prospective jurors. The Court will then go to sidebar to hear challenges for cause and rule on those challenges.

A new group of twelve potential jurors will then be called in the order from the list to the jury box. The first 12 non-challenged jurors and (typically) 2 alernates will be seated. The same procedure will be followed until the entire venire has been questioned.

The parties will then submit peremptory challenges in writing simultaneously. The government is allowed 6 challenges and the defendant is allowed 10, pursuant to Federal Rule of Criminal Procedure 24, unless otherwise requested and approved by the Court. If the parties challenge the same juror, only one side will be charged for that challenge, beginning first with the government, and alternating between the parties for all later joint challenges. Once peremptory challenges have been submitted, the challenged prospective jurors will be excused. The remaining jurors will constitute part of the jury and cannot be stricken with later challenges. (No back-strikes will be allowed.) The remaining jurors will be asked to leave the jury box and sit in a separate area of the gallery.  

(2) Instructions for Trial Counsel: Please Read Carefully

Your compliance with the following requests will be greatly appreciated:

(i) Please be on time for each court session. Trial engagements take precedence over any other business. If you have matters in other courtrooms, arrange in advance to have them continued or have a colleague handle them for you.

(ii) Court time may not be used for marking exhibits. This must be done in advance of the court session.

(iii) Please stand whenever you address the court. This includes the making of objections.

(iv) Please speak into the microphone whenever speaking on the record in court. A portable microphone is available is counsel wishes to move away from the stationary microphones.

(v) In your opening statement to the jury, do not argue the case. Confine yourself to a concise summary of the important facts.

(vi) Please stand when you question witnesses. (Counsel with physical disabilities will be excused from this requirement.)

(vii) On direct examination, if you intend to question a witness about a group of documents, avoid delay by having all the documents given to the witness when you start the examination.

(viii) When you object in the presence of the jury, make your objection short and to the point. Do not argue the objection in the presence of the jury, and do not argue with the ruling of the court in the presence of the jury. Such matters may be raised at the first recess and will not be waived by waiting until the recess.

(ix) Do not ask the court in the presence of the jury to declare that a witness is qualified as an expert or qualified to express an expert opinion.

(x) It is not necessary to request leave of court to approach a witness to show the witness an exhibit.

(xi) Do not ask for a recess before cross-examination. If the direct examination should end at about the time the court would recess anyway, e.g., lunch time, a recess will be taken. Otherwise, be prepared to commence cross-examination immediately upon conclusion of the direct.

(xii) Upon completion of a witness’s testimony in civil trials, jurors are permitted to submit written questions for the witness in accordance with procedures to be discussed at the Final Pretrial Conference. Such questioning by the jurors will also be permitted in criminal trials if all parties agree. The government and defense counsel should discuss this issue with the Court at the Final Pre-trial Conference.

(xiii) The Court permits interim statements if appropriate due to the length of the trial.

(xiv) Counsel are not permitted to contact jurors after trial without permission of the Court.

Thank you in advance for your cooperation.

(3) Final Pretrial Conference Topics

The following is a list of topics Judge Durkin will address during the final pre-trial conference. Counsel need only be prepared to discuss the topics that are also referenced in the final pretrial order. The remaining topics in the list below reference particular practices Judge Durkin will explain during the final pre-trial conference.

1. voir dire
2. written juror questionnaire
3. jury lists – alphabetical and random agreed
4. statement of case – short enough to fit on letter to jurors
5. motions in limine – agreed matters and preparation of order on rulings
6. exhibits: (i) pre-mark all; (ii) stipulate to as many as possible; (iii) seek admission outside jury’s presence; (iv) must be admitted before displayed on screen
7. demonstratives and timelines
8. schedule for submission of disputed deposition designations
9. trial day
10. elevators
11. sidebars
12. trial technology – make sure to test it outside the presence of the jury
13. preliminary instructions and issue instructions before opening
14. instructions before closing (can project on screen)
15. interim statements
16. note pads
17. jury binders
18. jury questions
19. moving around courtroom
20. can always approach witness without permission
21. no speaking objections, unless requested; just – irrelevant, asked and answered, hearsay
22. talking to jury after verdict

Click here for Pro Se Litigants information, and for information regarding the District Court Self-Help Assistance Program. If you are a pro se litigant, this program may be able to provide you with assistance regarding your case. The help desk attorney operates by appointment only. Appointments are made at the Clerk’s Office Intake Desk on the 20th floor or by calling 312-435-5691.

Use of the help desk attorney is not a substitute for an attorney.  You should seriously consider trying to obtain professional legal assistance.

Click here and turn to pages 13-14 to find contact information for organizations that may be able to offer you free or low-cost legal assistance or a referral to an attorney if you can afford to pay for legal services.

Click herefor additional information about finding an attorney and getting legal advice.

Please also see the following notice to pro se litigants: Local Rule 56.2 - Notice to Pro Se Litigants Opposing Summary Judgment

And for appointed attorneys, please see the following documents:

Title VII and Section 1981: A Guide for Appointed Attorneys in the Northern District of Illinois 

The Americans With Disabilities Act An Age Discrimination In Employment Act: A Guide for Appointed Attorneys in the Northern District of Illinois 

Click here for Pro Se Litigants information, and for information regarding the District Court Self-Help Assistance Program. If you are a pro se litigant, this program may be able to provide you with assistance regarding your case. The help desk attorney operates by appointment only. Appointments are made at the Clerk’s Office Intake Desk on the 20th floor or by calling 312-435-5691.

Use of the help desk attorney is not a substitute for an attorney.  You should seriously consider trying to obtain professional legal assistance.

Click here and turn to pages 13-14 to find contact information for organizations that may be able to offer you free or low-cost legal assistance or a referral to an attorney if you can afford to pay for legal services.

Click herefor additional information about finding an attorney and getting legal advice.

Please also see the following notice to pro se litigants: Local Rule 56.2 - Notice to Pro Se Litigants Opposing Summary Judgment

And for appointed attorneys, please see the following documents:

Title VII and Section 1981: A Guide for Appointed Attorneys in the Northern District of Illinois 

The Americans With Disabilities Act An Age Discrimination In Employment Act: A Guide for Appointed Attorneys in the Northern District of Illinois 

Judge Durkin does not require motions to seal confidential information. Unless otherwise ordered, parties in all cases may file under seal materials containing confidential information without filing a separate motion seeking permission to do so.

For every document filed under seal, the filing party must also separately file a publicly available redacted version.

Judge Durkin requires parties to meet and confer prior to filing any motion. This meet and confer process should address any dispute about whether a document is appropriately sealed. If the parties cannot resolve the dispute, the document should be filed under seal (along with the public redacted version), and the parties should then contact the Courtroom Deputy to schedule a hearing on the dispute regarding sealing. No motion of any kind about sealing a document should be filed unless the Court so orders.

Note about filing a sealed document: File the publicly available redacted version first. Then file the unredacted version using the ECF filing event "Sealed Document." If you use the ECF filing event "Sealed Motion" you will create a duplicate motion, which is unnecessary. A party should only use the "Sealed Motion" filing event if for some reason the party believes the filing of the motion itself must be confidential.

Judge Durkin does not require motions to seal confidential information. Unless otherwise ordered, parties in all cases may file under seal materials containing confidential information without filing a separate motion seeking permission to do so.

For every document filed under seal, the filing party must also separately file a publicly available redacted version.

Judge Durkin requires parties to meet and confer prior to filing any motion. This meet and confer process should address any dispute about whether a document is appropriately sealed. If the parties cannot resolve the dispute, the document should be filed under seal (along with the public redacted version), and the parties should then contact the Courtroom Deputy to schedule a hearing on the dispute regarding sealing. No motion of any kind about sealing a document should be filed unless the Court so orders.

Note about filing a sealed document: File the publicly available redacted version first. Then file the unredacted version using the ECF filing event "Sealed Document." If you use the ECF filing event "Sealed Motion" you will create a duplicate motion, which is unnecessary. A party should only use the "Sealed Motion" filing event if for some reason the party believes the filing of the motion itself must be confidential.

In-Chambers Conference

Properly prepared motions for summary judgment require considerable Court and attorney time and client expense. Sometimes such motions are unnecessarily filed. A careful examination of the record prior to filing may reveal contested factual issues making the granting of the motion impossible.

In many cases after fact discovery has closed, it is helpful for the Court to hold an informal, off-the-record discussion in chambers with the lead attorneys of the parties to discuss whether the filing of a summary judgment motion is advisable given the state of the record. No written submissions should be made prior to the conference. The party who wishes to seek summary judgment should be prepared to point out the uncontested facts that support the relief being sought, and the opposing party should be prepared to speak to whether in fact those facts are contested. This conference should be scheduled with the Courtroom Deputy before any substantive work is done preparing the motion. No party will ever be prevented from filing a dispositive motion, but the goal of the in-chambers conference is to have a careful, informed discussion of the issues before significant time and expense have been incurred.

In some cases, the Court may determine that an in-chambers conference would not be helpful. Parties, however, should always inquire with the Court prior to filing a summary judgment motion.

Parties should consider Smith v. OSF HealthCare System, 933 F.3d 859 (7th Cir. 2019), before seeking leave to file a motion for summary judgment prior to the close of discovery.

Motions for Summary Judgment

Motions for summary judgment and responses must comply with Local Rules 56.1(a) and 56.1(b), as well as the procedures outlined herein. All statements of undisputed material facts and their responses shall be filed separately from the memoranda of law and shall include the line, paragraph, or page number where the supporting material may be found in the record.

The Local Rules are not mere technicalities. Failure to abide by the Local Rules may result in the Court striking briefs, disregarding statements of fact, deeming statements of fact admitted, and denying summary judgment. See Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009).

The movant shall not file more than 80 statements of undisputed material facts without prior leave of the Court. The respondent shall be limited to 40 statements of undisputed material facts without prior leave of the Court. In complex cases, the Court finds it helpful when the parties submit an agreed timeline of events in addition to the statements of undisputed material facts.

Motions to strike are strongly disfavored. Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 727 (7th Cir. 2006) (Easterbrook, J., in chambers). For example, if a party believes that the other side's brief contains inaccurate facts or that the other side's Local Rule 56.1 statement (in summary-judgment briefing) contains an unsupported assertion, then the complaining party should so argue in the response or reply brief, or in the responsive 56.1 statement. Motions to strike almost always would require the Court to decide significant issues (and, indeed, the underlying motion) on the merits and would multiply the briefs, because the other side should be allowed to respond. Id. at 727. Only on very rare occasions is a motion to strike appropriate, such as when an entire brief or 56.1 statement is defective. When it is appropriate, the motion must be made very promptly after the filing of the purportedly-offending brief or statement.

Deposition Testimony Evidence

Parties submitting deposition transcripts in support of or in opposition to summary judgment must file electronically the entire transcript for each deposition. Parties are not to submit the entire transcript with their courtesy copies, but only the excerpted pages referenced in the party's motion papers. If at all possible, deposition transcripts, whether submitted in their entirety or in excerpted form, should be submitted in the condensed transcript format where multiple deposition transcript pages are reduced to one page. All submissions to the Court should be printed on both sides of the paper and included the ECF heading.

In-Chambers Conference

Properly prepared motions for summary judgment require considerable Court and attorney time and client expense. Sometimes such motions are unnecessarily filed. A careful examination of the record prior to filing may reveal contested factual issues making the granting of the motion impossible.

In many cases after fact discovery has closed, it is helpful for the Court to hold an informal, off-the-record discussion in chambers with the lead attorneys of the parties to discuss whether the filing of a summary judgment motion is advisable given the state of the record. No written submissions should be made prior to the conference. The party who wishes to seek summary judgment should be prepared to point out the uncontested facts that support the relief being sought, and the opposing party should be prepared to speak to whether in fact those facts are contested. This conference should be scheduled with the Courtroom Deputy before any substantive work is done preparing the motion. No party will ever be prevented from filing a dispositive motion, but the goal of the in-chambers conference is to have a careful, informed discussion of the issues before significant time and expense have been incurred.

In some cases, the Court may determine that an in-chambers conference would not be helpful. Parties, however, should always inquire with the Court prior to filing a summary judgment motion.

Parties should consider Smith v. OSF HealthCare System, 933 F.3d 859 (7th Cir. 2019), before seeking leave to file a motion for summary judgment prior to the close of discovery.

Motions for Summary Judgment

Motions for summary judgment and responses must comply with Local Rules 56.1(a) and 56.1(b), as well as the procedures outlined herein. All statements of undisputed material facts and their responses shall be filed separately from the memoranda of law and shall include the line, paragraph, or page number where the supporting material may be found in the record.

The Local Rules are not mere technicalities. Failure to abide by the Local Rules may result in the Court striking briefs, disregarding statements of fact, deeming statements of fact admitted, and denying summary judgment. See Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009).

The movant shall not file more than 80 statements of undisputed material facts without prior leave of the Court. The respondent shall be limited to 40 statements of undisputed material facts without prior leave of the Court. In complex cases, the Court finds it helpful when the parties submit an agreed timeline of events in addition to the statements of undisputed material facts.

Motions to strike are strongly disfavored. Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 727 (7th Cir. 2006) (Easterbrook, J., in chambers). For example, if a party believes that the other side's brief contains inaccurate facts or that the other side's Local Rule 56.1 statement (in summary-judgment briefing) contains an unsupported assertion, then the complaining party should so argue in the response or reply brief, or in the responsive 56.1 statement. Motions to strike almost always would require the Court to decide significant issues (and, indeed, the underlying motion) on the merits and would multiply the briefs, because the other side should be allowed to respond. Id. at 727. Only on very rare occasions is a motion to strike appropriate, such as when an entire brief or 56.1 statement is defective. When it is appropriate, the motion must be made very promptly after the filing of the purportedly-offending brief or statement.

Deposition Testimony Evidence

Parties submitting deposition transcripts in support of or in opposition to summary judgment must file electronically the entire transcript for each deposition. Parties are not to submit the entire transcript with their courtesy copies, but only the excerpted pages referenced in the party's motion papers. If at all possible, deposition transcripts, whether submitted in their entirety or in excerpted form, should be submitted in the condensed transcript format where multiple deposition transcript pages are reduced to one page. All submissions to the Court should be printed on both sides of the paper and included the ECF heading.

Please contact Judge Durkin's court reporter, Elia Carrion, at least 5 business days before the start of any proceeding for which you anticipate needing daily or hourly transcript and/or a realtime feed or rough-draft transcript so that these services can be scheduled. A deposit may be required.

Contact Elia at elia_carrion@ilnd.uscourts.gov or 312-408-7782.

Please contact Judge Durkin's court reporter, Elia Carrion, at least 5 business days before the start of any proceeding for which you anticipate needing daily or hourly transcript and/or a realtime feed or rough-draft transcript so that these services can be scheduled. A deposit may be required.

Contact Elia at elia_carrion@ilnd.uscourts.gov or 312-408-7782.

1.     Defense counsel must submit a sentencing memorandum prior to sentencing, in accordance with the schedule that the Court will set along with the sentencing date. If defense counsel fails to submit such a memorandum in time for the Court to properly consider it, the sentencing will be continued. No exceptions are permitted without leave of Court.

2.     The defendant is encouraged to submit a personal narrative to the Court prior to sentencing explaining why he or she committed the crime and a plan for rehabilitation. However, the defendant is not required to submit such a narrative and the defendant will not be penalized for failing to do so.

3.     In the normal course, the Court will order probation to disclose the probation officer's sentencing recommendation to both the government and defense counsel.

1.     Defense counsel must submit a sentencing memorandum prior to sentencing, in accordance with the schedule that the Court will set along with the sentencing date. If defense counsel fails to submit such a memorandum in time for the Court to properly consider it, the sentencing will be continued. No exceptions are permitted without leave of Court.

2.     The defendant is encouraged to submit a personal narrative to the Court prior to sentencing explaining why he or she committed the crime and a plan for rehabilitation. However, the defendant is not required to submit such a narrative and the defendant will not be penalized for failing to do so.

3.     In the normal course, the Court will order probation to disclose the probation officer's sentencing recommendation to both the government and defense counsel.

Plaintiffs in cases alleging counterfeit products and joining many defendants should use the form proposed orders linked below to assist the Court in reviewing motions for: (1) temporary restraining orders; (2) preliminary injunctions; and (3) default judgments. Plaintiffs should create a redline comparison of their proposed order against the relevant form and attach it as an exhibit to their motion. A proposed order's conformity with the form does not imply that the associated motion will be granted. But plaintiffs should be prepared to explain any differences.

In any motion for temporary restraining order filed with the Court, Plaintiffs must state whether they have previously sued any of the defendants regarding the product at issue in another case brought before another federal judge and if so, identify which judge, the case number, and the disposition of that case (e.g., voluntary dismissal; dismissal by the court without prejudice).

In any motion a for temporary restraining order or preliminary injunction in a utility patent case, Plaintiffs should not seek an asset restraint unless Plaintiffs can show that the Court’s order in case 24-cv-1211 at Docket No. 67 does not apply.

Judge Durkin will presumptively require a bond of $1,000 per defendant. Plaintiffs should inform the Court of any circumstances that make such a bond inappropriate.

Form of Proposed Temporary Restraining Order
Form of Preliminary Injunction
Form of Default Judgment

Plaintiffs in cases alleging counterfeit products and joining many defendants should use the form proposed orders linked below to assist the Court in reviewing motions for: (1) temporary restraining orders; (2) preliminary injunctions; and (3) default judgments. Plaintiffs should create a redline comparison of their proposed order against the relevant form and attach it as an exhibit to their motion. A proposed order's conformity with the form does not imply that the associated motion will be granted. But plaintiffs should be prepared to explain any differences.

In any motion for temporary restraining order filed with the Court, Plaintiffs must state whether they have previously sued any of the defendants regarding the product at issue in another case brought before another federal judge and if so, identify which judge, the case number, and the disposition of that case (e.g., voluntary dismissal; dismissal by the court without prejudice).

In any motion a for temporary restraining order or preliminary injunction in a utility patent case, Plaintiffs should not seek an asset restraint unless Plaintiffs can show that the Court’s order in case 24-cv-1211 at Docket No. 67 does not apply.

Judge Durkin will presumptively require a bond of $1,000 per defendant. Plaintiffs should inform the Court of any circumstances that make such a bond inappropriate.

Form of Proposed Temporary Restraining Order
Form of Preliminary Injunction
Form of Default Judgment

In all civil jury trials before Judge Durkin, the parties shall jointly prepare a final pretrial memorandum. The final pretrial memorandum will be due one week before the final pretrial conference, which will generally be scheduled about two weeks prior to the trial date. To the extent the Court and the parties are unable to address all pretrial issues at the final pretrial conference (including issue instructions), the Court will schedule a second conference one week prior to the trial date. The Court does not require trial briefs in jury trials. Parties who wish to file a trial brief must seek leave of the Court to do so.

The parties may also file motions in limine in accordance with the guidelines set forth below.

The purpose of the final pretrial conference is to avoid surprises and to simplify the trial. Lead trial counsel must attend the conference and should be fully prepared and with authority to discuss all aspects of the case, including all previous efforts to settle the case and whether further discussions are possible. Counsel should discuss with the Court whether their clients should attend the final pretrial conference.

Judge Durkin’s courtroom (1441) is equipped with a digital evidence projection system. The Court expects trial counsel to use this system. As early as possible prior to trial (not less than four weeks), counsel should contact Alexander Zeier, the Courtroom Technology Administrator, to schedule a training session. Mr. Zeier can be reached at (312) 435-6045.

I. Schedule

The following is the presumptive pretrial schedule. The parties should inform the Court if they require a different schedule.

II. Motions in Limine

The parties are directed to meet and confer on all motions in limine before filing them and determine which motions, if any, are unopposed and do not need to be filed. Unopposed motions in limine should be briefly described in the final pretrial memorandum.

Unless otherwise ordered, all motions in limine must be filed in accordance with the schedule set out above. No replies should be filed unless ordered by the Court.

Parties filing multiple motions in limine should submit their initial motions and the supporting exhibits in one document for the Court. Responses to motions in limine should also be submitted in one document.

Absent prior leave of Court, motions in limine (not including exhibits) are limited to a total of 15 pages per side (not per motion), and responses (not including exhibits) are likewise limited to a total of 15 pages per side.

Daubert motions are handled separately. Counsel should consult the section of Judge Durkin’s webpage addressing Daubert motions.

Parties should keep in mind that motions in limine are meant to provide a mechanism for the court and parties to resolve particular evidentiary issues prior to trial. A proper motion in limine “performs a gatekeeping function and permits the trial judge to eliminate from further consideration evidentiary submissions that clearly ought not be presented to the jury because they clearly would be inadmissible for any purpose.” Jonasson v. Lutheran Child and Fam. Servs., 115 F.3d 436, 440 (7th Cir. 1997). They are particularly useful in streamlining a trial so that extensive argument becomes unnecessary after a jury has been impaneled. See id. (“The prudent use of the in limine motion sharpens the focus of later trial proceedings and permits the parties to focus their preparation on those matters that will be considered by the jury.”). They also provide economies to the parties such that certain witnesses will not be called to testify. Every party is advantaged by knowing what evidence is likely admissible before trial begins so that proper jury presentation can be made. Finally, an accurate assessment of the admissible evidence may cause parties to reconsider settlement negotiation positions.

However, motions in limine should not be so granular that no rational ruling can be made outside of the context of the trial itself. See Jonasson, 115 F.3d at 440 (“Some evidentiary submissions . . . cannot be evaluated accurately or sufficiently by the trial judge in [a pretrial] environment.”). “In these instances it is necessary to defer ruling until during trial, when the trial judge can better estimate its impact on the jury.” Id.; see also Fletcher v. Conway, 1991 WL 24460, at *1 (N.D. Ill. Feb. 21, 1991) (“Careful exercise of [the court’s discretion in determining the admissibility of evidence] is usually best left to trial, when the court is in a position to evaluate the proffered evidence within context.”). To the extent potentially improper prejudicial testimony may be elicited, the attorneys as officers of the court are obligated to bring up these issues outside the presence of the jury either at side-bar or during breaks.

Moreover, the fact that a motion in limine was not filed as to a particular piece of evidence does not operate as a waiver. Counsel is always free to object to evidence at trial for all of the grounds permissible under the Federal Rules of Evidence. See Moore v. General Motors Corp., 684 F. Supp. 220, 220 (S.D. Ind. 1988) (Tinder, J.) (“A ruling on a motion in limine is not a final ruling on the admissibility of the evidence which is the subject of the motion. An order on a motion in limine has been characterized as an advisory opinion subject to change as events at trial unfold.”). Like any other evidentiary ruling, the Court’s rulings on motions in limine are based on the facts and theories of the case as the Court understands them at the time the Court makes its ruling. These rulings do not preclude any party from renewing a request for either admission or exclusion of evidence if the facts as developed at trial make reconsideration appropriate.

III. The Final Pretrial Memorandum

(1) Trial Attorneys:

A list of the attorneys trying the case, including business addresses and telephone numbers. A list of the names of all people who will be sitting at counsel table, including parties, consultants, legal and technical assistants, etc., should also be provided.

(2) Case Statement:

A concise agreed statement of the case (no more than one or two short paragraphs), including: (a) the nature of the case; (b) the claims, counterclaims and cross-claims; and (c) the defenses raised to those claims.

The Court will read this statement to the venire during voir dire, merely to inform the venire as to the general nature of the case. It will also be part of the cover letter the court provides to the venire with the juror questionnaire.

(3) Trial Length and Number of Jurors:

The estimated number of trial days, including jury selection, and the number of jurors the parties recommend be selected (subject to Rule 48(a)). The Court presumptively seats a 12-person jury, with all 12 jurors deliberating. Typically, each side will be allowed three peremptory challenges. The Court will seat an 8-person jury, with all 8 jurors deliberating, for trials of two days or less, or when otherwise appropriate.

(4) Voir Dire Questions:

To the extent possible, the Court prefers that most questions asked of potential jurors be included in a written questionnaire (of no more than two pages) as it encourages reflection and candor. Sample questions are provided below in section IV.1 addressing jury selection procedures. To propose questions that should be included in the written questionnaire distributed to the venire, as well as questions the Court should ask orally, the parties must file a joint document that includes both: (1) joint questions in the form of a questionnaire; (2) a list of questions to be asked orally; and (3) proposed questions to which one party objects, and a short basis for the objection.

(5) Witness Lists:

Separate lists for plaintiff and defendant providing the names of witnesses, including expert witnesses, divided into the following three categories: (a) witnesses who will be called to testify at trial; (b) witnesses who may be called to testify at trial; and (c) witnesses whose testimony a party will present by deposition or other prior testimony (indicating whether the presentation will be by reading a transcript or playing a video).

Deposition designations, whether disputed or undisputed, should not be submitted with the final pretrial memorandum. The parties should be prepared to discuss a schedule for such submissions at the final pretrial conference.

For each witness, provide a very concise (2 or 3 sentences maximum) description of the witness and the witness’s role in the case. For example: “George Washington is Plaintiff’s cousin. Washington witnessed the arrest of Plaintiff where Defendants allegedly used excessive force.” Or: “John Adams is Defendant’s Chief Operating Officer. Adams made promises concerning the timing of payments under the contract at issue in the case.”

The Court will read the names of witnesses on the lists during jury selection.

(6) Exhibit Lists:

A list by each side of all exhibits the party will definitely use at trial (including demonstratives, summaries or other specially prepared exhibits), which includes the following: (a) the exhibit number for each document; (b) the date of the document; (c) a brief description of the document; (d) whether there is an objection to admission of the document and, if so, a concise statement of the basis for the objection (e.g., Rule 402—relevance; Rule 403—undue prejudice or confusion); and (e) a concise statement of the asserted basis of admissibility, if there is an objection.

There is no need to list every conceivable exhibit that can possibly be used. The parties should submit a list of trial exhibits they definitely intend to introduce. Exhibits not likely to be used need not be listed. If, due to unforeseen circumstances during trial a party wishes to introduce an exhibit not previously listed, notice should be given as soon as possible to the opposing side and to the Court so that any objections can be discussed. Absent abuse of this process, an exhibit will not be deemed inadmissible simply because it was not included on the original exhibit list, provided the exhibit/document was earlier produced to the opposing side during discovery.

As part of the final pretrial memorandum, the parties must provide the Court with two copies of an exhibit binder containing the objected-to exhibits offered by both sides. If the same objection applies to multiple exhibits, only representative exhibits need be provided. If the representative exhibits from both sides require more than a single binder, the parties must contact the Court’s courtroom deputy, Emily Wall, to explain why additional binders are required.

Two copies of the binder containing both sides’ final exhibits will be required for trial. Each binder should also include a summary checklist page for the Court to track admission of exhibits during trial. Again if more than a single binder is needed, the Court’s courtroom deputy should be contacted. The Court wants to avoid the needless copying of hundreds or thousands of documents in multiple boxes where electronic media may suffice.

(7) Jury Instructions:

The parties are instructed to meet and attempt to agree on jury instructions and to include proposed instructions in the final pretrial memorandum. The parties should avoid the filing of identical instructions. Joint instructions should be filed when both parties agree to them. The Court uses the 7th Circuit Pattern Jury Instructions where applicable, bearing in mind that statutory and binding case law govern over the pattern instructions. 

See Pattern Civil Jury Instructions

If the parties wish to modify a 7th Circuit Pattern Jury Instruction, the party proposing the modification must submit a comparison document to the Court showing the modification to the pattern instruction. The parties should concentrate their efforts on the substantive jury instructions related to the merits.

Each proposed instruction must indicate the proponent of the instruction and whether the instruction is agreed or disputed. The bottom of each instruction must identify the legal authority supporting the instruction. If an instruction is disputed, the grounds for the objection (and any proposed modification or alternate instruction) must be concisely stated on the same page immediately following the disputed instruction. The party proposing the instruction may then state concisely the reasons supporting the instruction as proposed. Once the instructions are finalized, one of the parties should prepare a table of contents.

It is now the Court’s practice to provide to the jury and read all jury instructions to the jury (including issue instructions) and display the proposed verdict form before opening statements. This requires that instructions initially be drafted using tenses that reflect the fact that the jury has not yet heard any evidence or argument. The parties, however, will be free to propose amendments to the final jury instructions and verdict form based on the evidence as it is actually presented at trial. The Court will also read the final instructions prior to closing arguments. Jury instructions may be used and electronically projected during closing arguments.

The following are jury instructions the Court has used previously:

Employment Discrimination 1

Employment Discrimination 2

Employment Discrimination 3

Employment Discrimination 4

Section 1981

Fourth Amendment 1

Fourth Amendment 2

Fourth Amendment 3

Fourth Amendment 4

Deliberate Indifference

Fiduciary Duty & Unfair Competition

Illinois Consumer Fraud & RESPA

Securities Fraud

IV. Additional Pretrial Information

(1) Jury Selection:

In accordance with the recommendation of the Seventh Circuit Bar Association's American Jury Project Commission, the Court presumptively seats twelve person juries in civil trials. However, the Court will seat an 8-person jury for trials of two days or less, or when otherwise appropriate.

On the morning of jury selection, prior to entering the courtroom, the venire will be given a written questionnaire with questions proposed by the parties and approved by the Court. Sample questionnaires are included in the attached documents below. These are examples only, and will require revision for each particular case. Although some of these documents include more than two pages, the Court generally restricts questionnaires to a maximum of two pages, and parties submissions should not include more than two pages of questions. The parties will be given copies of the jurors' written answers. The parties will also be given a copy of the list of potential jurors that is generated by the Clerk's Office.

Sample Civil Questionnaire 1; Sample Civil Questionnaire 2

The entire venire will then enter the courtroom and be sworn. The first twelve prospective jurors from the list will be called and seated in the jury box. The Court will question each prospective juror about their answers to the questionnaire. The Court will then ask the jurors the questions the parties and the Court determined at the final pretrial conference should be asked orally. Jurors will be given the opportunity to answer sensitive questions at sidebar if they wish.

The parties will then be given the opportunity to question the prospective jurors. The Court will then go to sidebar to hear challenges for cause, and the Court will rule on those challenges.

A new group of twelve potential jurors will then be called in the order from the list to the jury box. The first 12 non-challenged jurors will be seated. If jurors are excused during the trial, the remaining jurors (never less than 6) will be allowed to deliberate. There are no alternate jurors. All jurors seated in civil trials will be allowed to deliberate. The same procedure will be followed until the entire venire has been questioned.

The parties will then submit peremptory challenges in writing simultaneously. Each side is allowed three peremptory challenges, per 28 U.S.C. 1870, unless otherwise requested and approved by the Court. With a 12 person jury the Court will typically allow four peremptory challenges per side. If the parties challenge the same juror, only one side will be charged for that challenge, beginning first with the plaintiff, and alternating between the parties for all later joint challenges.

The same procedures will be followed in criminal cases, except Rules 23 and 24 of the Federal Rules of Criminal Procedures will be followed as to the number of jurors, the number of challenges, and alternate jurors.

(2) Instructions for Trial Counsel: Please Read Carefully

Your compliance with the following requests will be greatly appreciated:

(i) Please be on time for each court session. Trial engagements take precedence over any other business. If you have matters in other courtrooms, arrange in advance to have them continued or have a colleague handle them for you.

(ii) Court time may not be used for marking exhibits. This must be done in advance of the court session.

(iii) Please stand whenever you address the court. This includes the making of objections.

(iv) Please speak into the microphone whenever speaking on the record in court. A portable microphone is available is counsel wishes to move away from the stationary microphones.

(v) In your opening statement to the jury, do not argue the case. Confine yourself to a concise summary of the important facts.

(vi) Please stand when you question witnesses. (Counsel with physical disabilities will be excused from this requirement.)

(vii) If on direct examination you intend to question a witness about a group of documents, avoid delay by having all the documents given to the witness when you start the examination.

(viii) When you object in the presence of the jury, make your objection short and to the point. Do not argue the objection in the presence of the jury, and do not argue with the ruling of the court in the presence of the jury. Such matters may be raised at the first recess and will not be waived by waiting until the recess.

(ix) Do not ask the court in the presence of the jury to declare that a witness is qualified as an expert or qualified to express an expert opinion.

(xii) It is not necessary to request leave of court to approach a witness to show the witness an exhibit.

(xiii) Do not ask for a recess before cross-examination. If the direct examination should end at about the time the court would recess anyway, e.g., lunch time, a recess will be taken. Otherwise, be prepared to commence cross-examination immediately upon conclusion of the direct.

(xiv) Upon completion of a witness’s testimony in civil trials, jurors are permitted to submit written questions for the witness in accordance with procedures to be discussed at the Final Pretrial Conference. Such questioning by the jurors will also be permitted in criminal trials if all parties agree. The government and defense counsel should discuss this issue with the Court at the Final Pre-trial Conference.

(xv) The Court permits interim statements if appropriate due to the length of the trial.

(xvi) Counsel are not permitted to contact jurors after trial without permission of the Court.

Thank you in advance for your cooperation.

(3) Final Pretrial Conference Topics

The following is a list of topics Judge Durkin will address during the final pre-trial conference. Counsel need only be prepared to discuss the topics that are also referenced in the final pretrial order. The remaining topics in the list below reference particular practices Judge Durkin will explain during the final pre-trial conference.

1. voir dire
2. written juror questionnaire
3. jury lists - alphabetical and random agreed
4. statement of case – short enough to fit on letter to jurors
5. motions in limine – agreed matters and preparation of order on rulings
6. exhibits: (i) pre-mark all; (ii) stipulate to as many as possible; (iii) seek admission outside jury’s presence; (iv) must be admitted before displayed on screen
7. demonstratives and timelines
8. schedule for submission of disputed deposition designations
9. trial day
10. elevators
11. sidebars
12. trial technology – make sure to test it outside the presence of the jury
13. preliminary instructions and issue instructions before opening
14. instructions before closing (can project on screen)
15. interim statements
16. note pads
17. jury binders
18. jury questions
19. moving around courtroom
20. can always approach witness without permission
21. no speaking objections, unless requested; just – irrelevant, asked and answered, hearsay
22. talking to jury after verdict

In all civil jury trials before Judge Durkin, the parties shall jointly prepare a final pretrial memorandum. The final pretrial memorandum will be due one week before the final pretrial conference, which will generally be scheduled about two weeks prior to the trial date. To the extent the Court and the parties are unable to address all pretrial issues at the final pretrial conference (including issue instructions), the Court will schedule a second conference one week prior to the trial date. The Court does not require trial briefs in jury trials. Parties who wish to file a trial brief must seek leave of the Court to do so.

The parties may also file motions in limine in accordance with the guidelines set forth below.

The purpose of the final pretrial conference is to avoid surprises and to simplify the trial. Lead trial counsel must attend the conference and should be fully prepared and with authority to discuss all aspects of the case, including all previous efforts to settle the case and whether further discussions are possible. Counsel should discuss with the Court whether their clients should attend the final pretrial conference.

Judge Durkin’s courtroom (1441) is equipped with a digital evidence projection system. The Court expects trial counsel to use this system. As early as possible prior to trial (not less than four weeks), counsel should contact Alexander Zeier, the Courtroom Technology Administrator, to schedule a training session. Mr. Zeier can be reached at (312) 435-6045.

I. Schedule

The following is the presumptive pretrial schedule. The parties should inform the Court if they require a different schedule.

II. Motions in Limine

The parties are directed to meet and confer on all motions in limine before filing them and determine which motions, if any, are unopposed and do not need to be filed. Unopposed motions in limine should be briefly described in the final pretrial memorandum.

Unless otherwise ordered, all motions in limine must be filed in accordance with the schedule set out above. No replies should be filed unless ordered by the Court.

Parties filing multiple motions in limine should submit their initial motions and the supporting exhibits in one document for the Court. Responses to motions in limine should also be submitted in one document.

Absent prior leave of Court, motions in limine (not including exhibits) are limited to a total of 15 pages per side (not per motion), and responses (not including exhibits) are likewise limited to a total of 15 pages per side.

Daubert motions are handled separately. Counsel should consult the section of Judge Durkin’s webpage addressing Daubert motions.

Parties should keep in mind that motions in limine are meant to provide a mechanism for the court and parties to resolve particular evidentiary issues prior to trial. A proper motion in limine “performs a gatekeeping function and permits the trial judge to eliminate from further consideration evidentiary submissions that clearly ought not be presented to the jury because they clearly would be inadmissible for any purpose.” Jonasson v. Lutheran Child and Fam. Servs., 115 F.3d 436, 440 (7th Cir. 1997). They are particularly useful in streamlining a trial so that extensive argument becomes unnecessary after a jury has been impaneled. See id. (“The prudent use of the in limine motion sharpens the focus of later trial proceedings and permits the parties to focus their preparation on those matters that will be considered by the jury.”). They also provide economies to the parties such that certain witnesses will not be called to testify. Every party is advantaged by knowing what evidence is likely admissible before trial begins so that proper jury presentation can be made. Finally, an accurate assessment of the admissible evidence may cause parties to reconsider settlement negotiation positions.

However, motions in limine should not be so granular that no rational ruling can be made outside of the context of the trial itself. See Jonasson, 115 F.3d at 440 (“Some evidentiary submissions . . . cannot be evaluated accurately or sufficiently by the trial judge in [a pretrial] environment.”). “In these instances it is necessary to defer ruling until during trial, when the trial judge can better estimate its impact on the jury.” Id.; see also Fletcher v. Conway, 1991 WL 24460, at *1 (N.D. Ill. Feb. 21, 1991) (“Careful exercise of [the court’s discretion in determining the admissibility of evidence] is usually best left to trial, when the court is in a position to evaluate the proffered evidence within context.”). To the extent potentially improper prejudicial testimony may be elicited, the attorneys as officers of the court are obligated to bring up these issues outside the presence of the jury either at side-bar or during breaks.

Moreover, the fact that a motion in limine was not filed as to a particular piece of evidence does not operate as a waiver. Counsel is always free to object to evidence at trial for all of the grounds permissible under the Federal Rules of Evidence. See Moore v. General Motors Corp., 684 F. Supp. 220, 220 (S.D. Ind. 1988) (Tinder, J.) (“A ruling on a motion in limine is not a final ruling on the admissibility of the evidence which is the subject of the motion. An order on a motion in limine has been characterized as an advisory opinion subject to change as events at trial unfold.”). Like any other evidentiary ruling, the Court’s rulings on motions in limine are based on the facts and theories of the case as the Court understands them at the time the Court makes its ruling. These rulings do not preclude any party from renewing a request for either admission or exclusion of evidence if the facts as developed at trial make reconsideration appropriate.

III. The Final Pretrial Memorandum

(1) Trial Attorneys:

A list of the attorneys trying the case, including business addresses and telephone numbers. A list of the names of all people who will be sitting at counsel table, including parties, consultants, legal and technical assistants, etc., should also be provided.

(2) Case Statement:

A concise agreed statement of the case (no more than one or two short paragraphs), including: (a) the nature of the case; (b) the claims, counterclaims and cross-claims; and (c) the defenses raised to those claims.

The Court will read this statement to the venire during voir dire, merely to inform the venire as to the general nature of the case. It will also be part of the cover letter the court provides to the venire with the juror questionnaire.

(3) Trial Length and Number of Jurors:

The estimated number of trial days, including jury selection, and the number of jurors the parties recommend be selected (subject to Rule 48(a)). The Court presumptively seats a 12-person jury, with all 12 jurors deliberating. Typically, each side will be allowed three peremptory challenges. The Court will seat an 8-person jury, with all 8 jurors deliberating, for trials of two days or less, or when otherwise appropriate.

(4) Voir Dire Questions:

To the extent possible, the Court prefers that most questions asked of potential jurors be included in a written questionnaire (of no more than two pages) as it encourages reflection and candor. Sample questions are provided below in section IV.1 addressing jury selection procedures. To propose questions that should be included in the written questionnaire distributed to the venire, as well as questions the Court should ask orally, the parties must file a joint document that includes both: (1) joint questions in the form of a questionnaire; (2) a list of questions to be asked orally; and (3) proposed questions to which one party objects, and a short basis for the objection.

(5) Witness Lists:

Separate lists for plaintiff and defendant providing the names of witnesses, including expert witnesses, divided into the following three categories: (a) witnesses who will be called to testify at trial; (b) witnesses who may be called to testify at trial; and (c) witnesses whose testimony a party will present by deposition or other prior testimony (indicating whether the presentation will be by reading a transcript or playing a video).

Deposition designations, whether disputed or undisputed, should not be submitted with the final pretrial memorandum. The parties should be prepared to discuss a schedule for such submissions at the final pretrial conference.

For each witness, provide a very concise (2 or 3 sentences maximum) description of the witness and the witness’s role in the case. For example: “George Washington is Plaintiff’s cousin. Washington witnessed the arrest of Plaintiff where Defendants allegedly used excessive force.” Or: “John Adams is Defendant’s Chief Operating Officer. Adams made promises concerning the timing of payments under the contract at issue in the case.”

The Court will read the names of witnesses on the lists during jury selection.

(6) Exhibit Lists:

A list by each side of all exhibits the party will definitely use at trial (including demonstratives, summaries or other specially prepared exhibits), which includes the following: (a) the exhibit number for each document; (b) the date of the document; (c) a brief description of the document; (d) whether there is an objection to admission of the document and, if so, a concise statement of the basis for the objection (e.g., Rule 402—relevance; Rule 403—undue prejudice or confusion); and (e) a concise statement of the asserted basis of admissibility, if there is an objection.

There is no need to list every conceivable exhibit that can possibly be used. The parties should submit a list of trial exhibits they definitely intend to introduce. Exhibits not likely to be used need not be listed. If, due to unforeseen circumstances during trial a party wishes to introduce an exhibit not previously listed, notice should be given as soon as possible to the opposing side and to the Court so that any objections can be discussed. Absent abuse of this process, an exhibit will not be deemed inadmissible simply because it was not included on the original exhibit list, provided the exhibit/document was earlier produced to the opposing side during discovery.

As part of the final pretrial memorandum, the parties must provide the Court with two copies of an exhibit binder containing the objected-to exhibits offered by both sides. If the same objection applies to multiple exhibits, only representative exhibits need be provided. If the representative exhibits from both sides require more than a single binder, the parties must contact the Court’s courtroom deputy, Emily Wall, to explain why additional binders are required.

Two copies of the binder containing both sides’ final exhibits will be required for trial. Each binder should also include a summary checklist page for the Court to track admission of exhibits during trial. Again if more than a single binder is needed, the Court’s courtroom deputy should be contacted. The Court wants to avoid the needless copying of hundreds or thousands of documents in multiple boxes where electronic media may suffice.

(7) Jury Instructions:

The parties are instructed to meet and attempt to agree on jury instructions and to include proposed instructions in the final pretrial memorandum. The parties should avoid the filing of identical instructions. Joint instructions should be filed when both parties agree to them. The Court uses the 7th Circuit Pattern Jury Instructions where applicable, bearing in mind that statutory and binding case law govern over the pattern instructions. 

See Pattern Civil Jury Instructions

If the parties wish to modify a 7th Circuit Pattern Jury Instruction, the party proposing the modification must submit a comparison document to the Court showing the modification to the pattern instruction. The parties should concentrate their efforts on the substantive jury instructions related to the merits.

Each proposed instruction must indicate the proponent of the instruction and whether the instruction is agreed or disputed. The bottom of each instruction must identify the legal authority supporting the instruction. If an instruction is disputed, the grounds for the objection (and any proposed modification or alternate instruction) must be concisely stated on the same page immediately following the disputed instruction. The party proposing the instruction may then state concisely the reasons supporting the instruction as proposed. Once the instructions are finalized, one of the parties should prepare a table of contents.

It is now the Court’s practice to provide to the jury and read all jury instructions to the jury (including issue instructions) and display the proposed verdict form before opening statements. This requires that instructions initially be drafted using tenses that reflect the fact that the jury has not yet heard any evidence or argument. The parties, however, will be free to propose amendments to the final jury instructions and verdict form based on the evidence as it is actually presented at trial. The Court will also read the final instructions prior to closing arguments. Jury instructions may be used and electronically projected during closing arguments.

The following are jury instructions the Court has used previously:

Employment Discrimination 1

Employment Discrimination 2

Employment Discrimination 3

Employment Discrimination 4

Section 1981

Fourth Amendment 1

Fourth Amendment 2

Fourth Amendment 3

Fourth Amendment 4

Deliberate Indifference

Fiduciary Duty & Unfair Competition

Illinois Consumer Fraud & RESPA

Securities Fraud

IV. Additional Pretrial Information

(1) Jury Selection:

In accordance with the recommendation of the Seventh Circuit Bar Association's American Jury Project Commission, the Court presumptively seats twelve person juries in civil trials. However, the Court will seat an 8-person jury for trials of two days or less, or when otherwise appropriate.

On the morning of jury selection, prior to entering the courtroom, the venire will be given a written questionnaire with questions proposed by the parties and approved by the Court. Sample questionnaires are included in the attached documents below. These are examples only, and will require revision for each particular case. Although some of these documents include more than two pages, the Court generally restricts questionnaires to a maximum of two pages, and parties submissions should not include more than two pages of questions. The parties will be given copies of the jurors' written answers. The parties will also be given a copy of the list of potential jurors that is generated by the Clerk's Office.

Sample Civil Questionnaire 1; Sample Civil Questionnaire 2

The entire venire will then enter the courtroom and be sworn. The first twelve prospective jurors from the list will be called and seated in the jury box. The Court will question each prospective juror about their answers to the questionnaire. The Court will then ask the jurors the questions the parties and the Court determined at the final pretrial conference should be asked orally. Jurors will be given the opportunity to answer sensitive questions at sidebar if they wish.

The parties will then be given the opportunity to question the prospective jurors. The Court will then go to sidebar to hear challenges for cause, and the Court will rule on those challenges.

A new group of twelve potential jurors will then be called in the order from the list to the jury box. The first 12 non-challenged jurors will be seated. If jurors are excused during the trial, the remaining jurors (never less than 6) will be allowed to deliberate. There are no alternate jurors. All jurors seated in civil trials will be allowed to deliberate. The same procedure will be followed until the entire venire has been questioned.

The parties will then submit peremptory challenges in writing simultaneously. Each side is allowed three peremptory challenges, per 28 U.S.C. 1870, unless otherwise requested and approved by the Court. With a 12 person jury the Court will typically allow four peremptory challenges per side. If the parties challenge the same juror, only one side will be charged for that challenge, beginning first with the plaintiff, and alternating between the parties for all later joint challenges.

The same procedures will be followed in criminal cases, except Rules 23 and 24 of the Federal Rules of Criminal Procedures will be followed as to the number of jurors, the number of challenges, and alternate jurors.

(2) Instructions for Trial Counsel: Please Read Carefully

Your compliance with the following requests will be greatly appreciated:

(i) Please be on time for each court session. Trial engagements take precedence over any other business. If you have matters in other courtrooms, arrange in advance to have them continued or have a colleague handle them for you.

(ii) Court time may not be used for marking exhibits. This must be done in advance of the court session.

(iii) Please stand whenever you address the court. This includes the making of objections.

(iv) Please speak into the microphone whenever speaking on the record in court. A portable microphone is available is counsel wishes to move away from the stationary microphones.

(v) In your opening statement to the jury, do not argue the case. Confine yourself to a concise summary of the important facts.

(vi) Please stand when you question witnesses. (Counsel with physical disabilities will be excused from this requirement.)

(vii) If on direct examination you intend to question a witness about a group of documents, avoid delay by having all the documents given to the witness when you start the examination.

(viii) When you object in the presence of the jury, make your objection short and to the point. Do not argue the objection in the presence of the jury, and do not argue with the ruling of the court in the presence of the jury. Such matters may be raised at the first recess and will not be waived by waiting until the recess.

(ix) Do not ask the court in the presence of the jury to declare that a witness is qualified as an expert or qualified to express an expert opinion.

(xii) It is not necessary to request leave of court to approach a witness to show the witness an exhibit.

(xiii) Do not ask for a recess before cross-examination. If the direct examination should end at about the time the court would recess anyway, e.g., lunch time, a recess will be taken. Otherwise, be prepared to commence cross-examination immediately upon conclusion of the direct.

(xiv) Upon completion of a witness’s testimony in civil trials, jurors are permitted to submit written questions for the witness in accordance with procedures to be discussed at the Final Pretrial Conference. Such questioning by the jurors will also be permitted in criminal trials if all parties agree. The government and defense counsel should discuss this issue with the Court at the Final Pre-trial Conference.

(xv) The Court permits interim statements if appropriate due to the length of the trial.

(xvi) Counsel are not permitted to contact jurors after trial without permission of the Court.

Thank you in advance for your cooperation.

(3) Final Pretrial Conference Topics

The following is a list of topics Judge Durkin will address during the final pre-trial conference. Counsel need only be prepared to discuss the topics that are also referenced in the final pretrial order. The remaining topics in the list below reference particular practices Judge Durkin will explain during the final pre-trial conference.

1. voir dire
2. written juror questionnaire
3. jury lists - alphabetical and random agreed
4. statement of case – short enough to fit on letter to jurors
5. motions in limine – agreed matters and preparation of order on rulings
6. exhibits: (i) pre-mark all; (ii) stipulate to as many as possible; (iii) seek admission outside jury’s presence; (iv) must be admitted before displayed on screen
7. demonstratives and timelines
8. schedule for submission of disputed deposition designations
9. trial day
10. elevators
11. sidebars
12. trial technology – make sure to test it outside the presence of the jury
13. preliminary instructions and issue instructions before opening
14. instructions before closing (can project on screen)
15. interim statements
16. note pads
17. jury binders
18. jury questions
19. moving around courtroom
20. can always approach witness without permission
21. no speaking objections, unless requested; just – irrelevant, asked and answered, hearsay
22. talking to jury after verdict