Judge Jerry McBride Preferences

mcbride

JUDGE JERRY McBRIDE—PREFERENCES

MOTION PRACTICE

I review motions before they are set for hearing. A courtesy copy of a motion is appreciated. Counsel should indicate, when filing a motion, the length of time required for hearing. Most contested motions are scheduled for hearing. Where there is agreement on the motion, an agreed entry can be submitted prior to the date of hearing.

Most motions for summary judgment are scheduled for non-oral hearing and oral argument. Evidence in support of a MSJ must be filed with the motion. Evidence in opposition to a MSJ must be submitted prior to the day of non-oral hearing. Oral argument is held after each side has had an opportunity to submit briefs.

SETTLEMENT

I am generally not actively involved in settlement efforts and prefer to use a mediator instead. In most civil cases other than foreclosures, a mediation conference will be scheduled at the time of the case management conference. Counsel can determine when the mediation conference would be most helpful. However, once scheduled, mediation conferences will generally not be continued.

I am not actively involved in plea-bargains but on occasion will disapprove a plea bargain. It is my policy for the court to not become a party to a plea bargain and I will not plea bargain sentences. I will not indicate what the specific sentence will be on a plea, but will, where appropriate, indicate sentences that have been imposed in similar cases. I set a deadline for negotiated pleas which is the date of the formal pretrial conference. The deadline will not normally be extended.

CALENDARING, CONTINUANCES

Counsel are able to participate in the scheduling of a mediation conference and a trial date. Once scheduled, a mediation conference or a trial date will generally not be continued. Where there is no agreement, a motion for continuance will generally be scheduled for hearing. Where there is agreement, an agreed entry of continuance should be submitted with the motion. Counsel should obtain a tentative date through Assignment which should be included in the agreed entry.

However, counsel are expected to be ready for mediation and trial on the dates scheduled, and agreement of counsel does not mean that a continuance will be granted.

All case management conferences, motions, criminal pretrials including formal pretrial conferences, status conferences, pleas, and sentencings are scheduled on my 8:00 a.m. morning docket, with the exception that criminal cases involving defendants who are being held in Jail are scheduled at 8:30 a.m. Trials begin promptly at 10:00 a.m. and go until about 4:45 p.m. each day. Juries are generally permitted to deliberate into the evening if they so choose.

PRETRIAL

There is a case management conference (in civil cases) and pretrial conference (in criminal cases) held in every case and a formal pretrial conference will be held in every case scheduled for a jury trial. A case management order/pretrial order will be sent out after the case management/pretrial conference. In civil cases, a formal pretrial order will also be sent which contains forms to be used in listing exhibits and witnesses and informing the court of anticipated objections. Settlement, stipulations, admissibility of exhibits, special evidence problems, special jury instructions, need for view, and other matters of a similar nature are covered during the formal pretrial conference.

TRIAL

In civil cases, trial briefs should be filed at the time set forth in the formal pretrial order and should be submitted in compliance with the directions in the formal pretrial order. A concise summary of the issues involved, any discovery difficulties, claimed special damages, and statement of principles of law involved must be included. A final listing of witnesses and exhibits and objections to exhibits, proposed special jury instructions, and proposed interrogatories must be submitted by the deadlines in the order. Exhibit notebooks must be provided as set forth in the order, and there must be enough for the bailiff, judge, and each juror to have copies. Exhibits in the notebooks must be marked and in the same form as they will be used at trial. Witness and exhibit lists and objections to exhibits must be submitted on the court forms provided in the formal pretrial order.

I generally set no limits on the time allocated to voir dire, opening statements, and closing arguments. Questions of jurors must be limited to those necessary to determine if the jurors are fair and impartial. Counsel are not permitted to ask questions which are only designed to ingratiate themselves to jurors. If video depositions are to be used at trial, and if there are objections which need to be ruled on, a written transcript must be provided to the court at least three days prior to trial. No transcript is required if there are no objections or if counsel agree to waive all objections. During the trial, counsel in making an objection may only make a brief reference to the rule number or name of the rule, and discussion related to the objection must then occur at the bench and outside the hearing of the jury.

Every effort is made so that a jury trial is “jury friendly.” An effort will be made to get agreement by counsel on admissibility of exhibits prior to trial so the jurors will be able to view their copies of the exhibits while they are being used at trial. Similarly, in a court trial, all exhibits must be provided to the court prior to their use at trial. Jurors can take notes and ask questions of witnesses in all jury trials. I encourage attorneys to talk to jurors after the trial – this can be some of the most important feedback. Jurors are told that this can be helpful to the attorneys and the parties, but individual jurors are given an opportunity to decline to talk to attorneys.

A copy of the court’s proposed instructions is given to counsel before closing. A copy of the final instructions is given to the jury for its use in deliberations. General jury instructions relating to evidence, credibility, and related matters, and instructions as to the issues in the case are given prior to final arguments. Instructions as to what the jury does once they are in the jury room are given after final arguments.

DISCOVERY

Time limits are established in a case management order (in civil cases) or pretrial order (in criminal cases) issued after the case management/pretrial conference held early in the case. In civil cases, the standard formal pretrial order provides that opinions of experts must be provided at the time required for disclosure of expert witnesses. In most instances, this means that an opinion letter needs to be obtained

from the expert and be disclosed to the opposing side well in advance of trial (by the date set forth in the case management order).

Counsel should talk to one another to try to resolve any discovery disputes without judicial intervention. However, a trial will not be continued merely because counsel did not request discovery early enough or did not make a timely request for judicial intervention to resolve a discovery dispute. If it is obvious that there is deadlock on a discovery issue, a motion to compel or motion for protective order should be filed so that the dispute can be resolved without any unnecessary delay.

COURTROOM ETIQUETTE

Attorneys should always check in with the bailiff. Attorneys should stand when speaking unless they receive permission to remain seated. When speaking to the court, attorneys normally use the lectern except during trial when counsel may speak from counsel table. Attorneys should state objections succinctly, and if much discussion is required, should ask to approach the bench. Counsel should ask to approach witnesses. Chalkboards and easels can be made available by arrangement in advance. An “Elmo” is available to project written documents and other exhibits onto a large screen. Video depositions are projected onto a large screen in the courtroom.

EXPECTATIONS/COMMENTS

Pet peeves include: attorneys who are habitually late or fail to call in if they will be late; incivility; attorneys in civil cases who fail to disclose expert opinions within the time ordered; attorneys who fail to timely prepare for trial or check on witness availability; and attorneys who attempt to argue their case to a jury through the making of objections. Attorneys generally do a very good job in my courtroom. My only suggestions would be to listen carefully to the other side, fairly analyze the strengths and weaknesses of your case, be prepared, keep your examination of witnesses focused, limit objections to those that are necessary, and don’t minimize the importance of either opening statement or final argument.

PROCEDURES FOR REVIVOR

  1. File motion for revivor with clerk. Give copy to judge.
  2. Obtain date for hearing on revivor in 6-8 weeks from Assignment Commissioner.
  3. Submit conditional order of revivor to judge for signature- setting hearing date and giving the debtor the opportunity to show cause why the judgment should not be revived See R.C. 2325.17.
  4. Submit order of revivor (with necessary copies) to judge finding that sufficient cause has not been shown why judgment should not be revived. (For signature at time of hearing).
  5. File praecipe for service of motion and conditional order on judgment debtor in same form and manner as provided for service of summons of civil complaint. Summons must command the judgment debtor to serve and file a response to the motion within the same time as provided for service and filing of an answer to a complaint and shall notify the judgment debtor that in case of failure to respond the judgment shall be revived.  See Civ.R. 4(F).  If service by publication is necessary, see R.C. 2325.16.
  6. Attend hearing on reviver.