320 Sixth Street, Sioux City, IA 51101
1. If I need to communicate with the court, how should I proceed?
a) written? Yes, address above.
b) fax? Yes, see above.
c) e-mail? Yes, see above.
d) oral? No.
e) ex parte? Only for scheduling or procedural questions, or for matters that may be traditionally handled ex parte, such as requests for temporary restraining orders and Criminal Justice Act matters.
2. How can I determine the status of a pending motion?
Call the judge’s judicial assistant, Jami, at 712.233.3916.
3. If I need a trial or hearing continued, whom should I contact, and do I need to file a written motion?
If the request is on short notice, you should call the judge’s judicial assistant, Jami, at 712.233.3916; otherwise, you should file a written motion.
4. If I need to have a motion set for hearing, what procedure should I follow?
According to Local Rule 7.1,
Such request shall be separately stated at the conclusion of the motion or memorandum and shall be noted in the caption.
The judge will decide whether or not to grant a hearing, but in nearly every case, the judge will schedule one if it is requested. If a hearing needs to be scheduled on short notice, you should call the judge’s judicial assistant, Jami, at 712.233.3916.
5. How can I get an expedited ruling or hearing?
For any matter on which an expedited ruling or hearing is necessary, you should follow Local Rule 7.1 which states, in part:
Any pleading or motion requesting expedited relief by the court must indicate in the caption that expedited relief is requested. Counsel shall also be responsible for hand-delivering a copy of the expedited pleading or motion to the chambers of the judicial officer assigned to rule on the pleading requesting expedited relief or otherwise alerting the judicial officer so assigned that a pleading or motion seeking expedited relief has been filed.
To schedule the expedited hearing, you should call the judge’s judicial assistant, Jami, at 712.233.3916.
6. What do I have to do to get a settlement conference scheduled? Who will conduct the settlement conference? What are the requirements?
To schedule a settlement conference, you should contact U.S. Magistrate Paul A. Zoss at 712.233.3868. If you do not contact him by three months prior to trial, he will send a letter to the attorneys appearing in the case and request that the parties contact him to schedule a settlement conference. A copy of the form Settlement Conference Order is attached.
7. How do I get a trial date? Are trial dates firm?
Generally, each case will be assigned a trial date when the scheduling order is filed. If, for some reason, a trial date is not assigned to a case, or if the trial is continued and no new date has been set, you should contact U.S. Magistrate Judge Zoss at 712.233.3868, and he will set a trial date. Judge O’Brien will attempt to schedule each of his trials for a date certain. In some cases, more than one trial will be set for the same week, but in most circumstances, cases will be reached for trial on the date set. Of course, scheduling emergencies, such as criminal cases subject to the Speedy Trial Act, can potentially interfere with a trial date. However, our experience is that civil cases are reached for trial on the date set for trial.
8. Are there any special procedures for marking trial or hearing exhibits?
Yes. Those procedures are set out in section VI(A) of the form Trial setting order form - Jury Trial and Trial setting order form - Bench Trial
Judge O’Brien has two important additional requirements for his trials. First, the parties are to deliver to his chambers at least five working days before trial an Attorney Checklist for Trial. On this checklist, the parties certify to the court that they have completed their pretrial requirements. Second, the parties are to deliver to the judge’s chambers, at least three working days before the first day of trial, a copy of all trial exhibits, tabbed and in 3-ring binders (except that, for exhibits which exceed five pages, only provide pages to which you intend to refer at trial).
9. Is there anything particular that I should or should not do when I file a motion?
You should comply with Local Rules 7.1, 15.1, 37.1, and 47.1 [that deal with motions. If you refer to depositions or exhibits in a motion, you should only reference and attach the relevant parts of the deposition or exhibit. Judge O’Brien does not want a large quantity of irrelevant material sent to the court along with a motion.
Also, the parties do not need to reference general summary judgment standards in motions for summary judgment unless they are relying on some particular or unusual rule of law or application of the summary judgment standards.
10. How does the court view motions to reconsider?
Judge O’Brien will always review any motion to reconsider and, if it raises new matters or cites to new authorities, will give it due consideration. However, the Federal Rules make no specific provision for a “motion to reconsider. The parties should understand that Judge O’Brien has no control over jurisdictional time requirements imposed by the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, or the Federal Rules of Appellate Procedure. by waiting for a ruling on a motion to reconsider.
11. How does the court want jury instructions submitted?
Section VII(B)(2) of Judge O'Brien's form 'Trial setting order form - Jury trial' sets out the requirements for jury instructions. Those instructions are as follows
(2) Jury Instructions: Jury instructions must be prepared and submitted in accordance with the following directions:
(a) At least 14 days before the FPTC, the parties must serve on each other (but not file) proposed jury instructions. Since counsel for the plaintiff(s) ultimately will be responsible for compiling a unified set of instructions for Judge O’Brien, counsel for the defendant(s) should provide to counsel for the plaintiff(s) a computer disk containing the defendant(’s)(s’) proposed instructions.
(b) At least one week before the FPTC, counsel for the parties must consult, either personally or by telephone, and attempt to work out any differences in their proposed jury instructions.
(c) Counsel for the plaintiff(s) then must organize the proposed jury instructions into one document, prefaced by a table of contents. Instructions proposed by opposing parties on the same subject matter must be grouped together. For example, if Instruction No. 10 is a proposed marshaling instruction, and each party proposes a different marshaling instruction, then Instruction No. 10A should be the marshalling instruction proffered by the plaintiff(s) and Instruction No. 10B should be the marshaling instruction proffered by the defendant(s).
(d) Each instruction should treat a single subject, and should be numbered individually, on a separate sheet of paper, and double-spaced.
(e) At the bottom of each proposed jury instruction, the party proposing the instruction must cite the decisions, statutes, regulations, or other authorities supporting the proposed instruction. The following information also must be stated at the bottom of each proposed jury instruction: (i) the party offering the instruction; (ii) whether the opposing party objects to the proposed instruction; and if there is an objection, whether the objection is to (A) the language of the instruction, (B) the giving of the instruction, or (C) both. If a party is objecting to the language of a proposed instruction, the objectionable language must be identified. Objections must be supported by citations to applicable authorities.
(f) Pattern instructions need not be reproduced, but may be requested by reference to the publication, page number, and instruction number. Any modification to a pattern instruction should be disclosed as follows: additions should be underscored and deletions should be set forth by striking out the language sought to be deleted or setting out the deletions in parentheses.
(g) Instructions not requested as set forth above shall be deemed waived unless the subject of the instruction is one arising in the course of trial which reasonably could not have been anticipated before trial from the pleadings, discovery, or nature of the case.
(h) The court will use preliminary jury instructions, which will be read to the jury before opening statements. The parties’ proposed jury instructions only should include proposed preliminary jury instructions to the extent the standard preliminary jury instructions used by Judge O’Brien would be inadequate or inappropriate in this case. Prior to trial, the parties will receive proposed preliminary and final jury instructions from the court. The Court prefers to use Eighth Circuit Model Jury Instructions (accessible from this website), and where relevant, Iowa Civil Jury Instructions (available on the Iowa State Bar Association website). The Court then will schedule a jury instruction conference, usually the day before or the morning of trial. At that time the parties are expected to be prepared to discuss any objections they have to a proposed instruction, as well as any suggested changes or additions they would like to see.
12. Will the court conduct voir dire itself or will counsel be allowed to participate?
The court will conduct extensive voir dire, but each party will be permitted forty-five minutes for voir dire. An explanation of the court’s voir dire procedures is attached.
13. Are there any special requirements for the conduct of attorneys during trials or hearings?
Judge O’Brien expects attorneys to act in a courteous and professional manner at all times. During trial, Judge O’Brien will often require the attorneys to meet with him in his chambers before the time scheduled for trial to commence. Such meetings are not optional. Attorneys are expected to be on time for all such scheduled meetings, as well as for all hearings and trials.
The general custom in Iowa is for attorneys to question witnesses while seated at counsel table. However, the parties may question witnesses while standing or seated at counsel table, or while standing at the lectern.
Attorneys may approach witnesses to discuss exhibits without first asking permission of the court. However, it is better protocol for an attorney to ask permission the first time he or she wants to approach a witness with an exhibit. After an attorney has finished asking questions of a witness concerning an exhibit, he or she should immediately return to counsel table. Attorneys will not be permitted to act in a manner that might physically intimidate a witness during questioning.
Attorneys and their clients should stand when the jury enters or leaves the courtroom. Attorneys should also stand when they address the court or the jury. Attorneys may stand in front of the jury during opening statements and closing arguments, or, if they prefer, they may use the lectern.
A party intending to use a deposition during a trial should carefully follow the procedures set out in section XI of Judge O'Brien's 'Trial setting order form - Jury Trial' and section X of his 'Trial setting order form - Bench Trial.'
Attorneys are encouraged to use the technological equipment available in the courtroom, including an ELMO (an electronic visual display system). However, any attorney using this equipment should become familiar with the operation of the equipment before trial. You may contact the Clerk’s office at 712.233.3900 to request a training session with the ELMO or for any other court-supplied equipment.
Parties intending to bring in their own technological equipment should also contact the Clerk’s office before trial to make certain that the proper outlets and hookups are available. Parties are expected to be familiar with the operation of their own equipment before trial.
Attorneys should be careful not to waste the time of the court or the jury trying to operate equipment with which the attorney is unfamiliar.
If an attorney for either party wishes to request the exclusion of witnesses during a hearing or trial, exclusion should be requested at the beginning of the hearing or trial. In the absence of such a request, witnesses will not be excluded from hearings or trials. Judge O’Brien will not exclude parties, their spouses, a representative for a corporate or institutional client, or case agents.
Judge O’Brien discourages sidebar conferences, and prefers that all such matters be held until the next scheduled intermission. Judge O’Brien will, however, call a sidebar conference if requested by an attorney for a party.
The following court forms are attached:
_ Judge O'Brien's - Trial setting order form - Jury Trials
_ Judge O'Brien's - Trial setting order form - Bench Trials
_ Judge O'Brien's - Trial setting order form - Criminal Trials
_ Judge O'Brien's - Pretrial order form
_ Judge O'Brien's - Voir Dire Instructions