Chambers Practices of
The Honorable Ellen Bree Burns
Senior United States District Judge

Judge Burns is no longer in the rotation for civil cases. On occasion, if her schedule permits she will accept from other judges transfer of civil cases that are trial ready. She is in full rotation for criminal cases.

PRETRIAL PREFERENCES

Oral Argument on Motions
Judge Burns seldom hears oral argument on motions; she schedules oral argument only when she has questions, or occasionally, on request.

Referral to Magistrate Judges/Special Masters
Magistrate Judge Margolis is paired with Judge Burns. Judge Burns does not refer substantive motions to Magistrate Judge Margolis but does refer settlement conferences and some discovery disputes. She is more likely to refer cases to the magistrate judge when there are persistent discovery disputes. She also refers some pre-judgment remedy hearings. She does not often use special masters.

Rulings from the Bench
Judge Burns rarely rules on motions from the bench, in part because she rarely hears oral argument.

26(f) Reports
Judge Burns does not have an established practice for 26(f) Reports.

Resolution by Conference Call
Judge Bums likes to resolve discovery disputes by conference call. Her practice is to have counsel call her chambers to set up the conference call. Because senior judges do not have an assigned court reporter, she usually handles these phone calls off the record unless she believes that the matter should be transcribed. Judge Burns encourages conference calls as an expeditious way of resolving discovery disputes, either with or without a written motion.

Sur-reply Briefs
Judge Burns discourages the filing of sur-reply briefs, but she will allow them when necessary to address genuinely new issues raised in the reply brief.

Letter Briefs
Judge Burns discourages the practice of filing letter briefs. She does not object to counsel's informing her of the existence of new authority by way of a letter.

Chambers' Copies
Judge Burns likes to receive chambers' copies of motions and memoranda.

Motions for Extension of Time
While Judge Burns prefers to keep cases moving forward, she is willing to grant extensions of time where resolution of a case through negotiation may result. She also will consider stays of discovery, but makes the decision on a case-by-case basis.

Motions for Reconsideration
Judge Burns allows motions for reconsideration and usually reconsiders her decisions, but generally adheres to her initial rulings.

Special Proceedings
Judge Burns does not like to issue temporary restraining orders on an ex parte basis, preferring to hear from opposing counsel. She also prefers, when possible, to combine a preliminary injunction hearing with an expedited trial on the merits.

Joint Trial Memoranda
Judge Bums uses the court's standard joint trial memorandum. For courtside trials, she prefers proposed findings of fact and conclusions of law. Nevertheless, she usually permits post-trial briefing.

Lawyer Affidavits
Judge Burns believes that lawyer affidavits identifying documents are unnecessary.

Dispositive Motions
Judge Burns has no special practices or procedures for dispositive motions.

Discovery
Judge Bums prefers to resolve discovery disputes by conference call (see "Resolution by Conference Call" section).

Settlement
Judge Burns generally refers settlement conferences to Magistrate Judge Margolis.

TRIAL PREFERENCES

Hours of Day for Trial
Judge Burns tries cases from 10:OO a.m. until 5:00 p.m. with an hour for lunch. She uses the hour from 9:00 a.m. to 10:OO a.m. for sentences, oral arguments, etc., from other cases, and occasionally for trial-related motions.

Days of Week for Trial
Judge Burns ordinarily conducts trial five days a week.

Time Limitations for Trial
Judge Burns does not impose formal trial time limitations for trials. However, she does try to get time estimates from counsel before trial and tries to keep counsel to those estimates during the trial.

Time Limitations for Individual Examinations of Witnesses
Judge Burns does not set time limits for individual witness examination. However, if she feels that the examination is dragging, she will try to move it along.

Opening Statements
Judge Burns will permit opening statements upon request of counsel. In rare, complicated civil cases she allows counsel to make opening statements.

Judge Burns gives an opening statement of approximately one-half hour in length. In advance, she asks counsel for a joint statement that summarizes the case. which she can incorporate into her opening statement.

Judge Burns has never read the pleadings to the jury in lieu of or as part of an opening statement.

Closing Arguments
Judge Burns allows each side one hour to present a closing argument. In her experience, seldom is more time required and most people do not use the entire time dotted. She does not charge the jury before the closings, but she does provide the jury charge to counsel in advance of their closing arguments so that they know what they can and cannot say.

Demonstrative Exhibits
Judge Burns relies heavily on the pretrial memoranda to indicate what demonstrative exhibits will be presented. She typically does not require their presentation in advance, but she will limit their use if they are inflammatory.

Moving Exhibits into Evidence
Judge Burns tries to get counsel to agree in advance on exhibits. She typically deals with objections during the course of trial, unless there will be protracted argument. In that case, she will do the argument outside of the presence of the jury and will often use her 9:00 a.m. to 10:OO a.m. time slot for that purpose.

Pre-marking of Exhibits
Judge Burns has the lawyers pre-mark exhibits in trials.

Procedural Motions and Arguments
Judge Burns typically handles procedural motions and arguments outside of ordinary trial time and often uses the 9:00 a.m. to 10:OO a.m. hour for this purpose.

Objections
See "Moving Exhibits into Evidence" section.

Jury Profiles
Though Judge Burns is not quite as concerned as some of her colleagues about the use of the Internet to investigate prospective jurors, it does make her uncomfortable. She is not sure whether she can instruct lawyers not to do it.

Judge Burns has used questionnaires in advance in at least two high-profile criminal cases. She has asked for counsel's input into the questions that are on the questionnaires. She initially goes over the responses to remove prospective jurors who cannot serve because of inconvenience. She then schedules a status conference with counsel to discuss those that remain. She has this conference on the record.

Jury Selection
Judge Burns asks the voir dire questions, but she invites counsel to submit questions to her. She will allow counsel to ask their own questions after introducing themselves and after she has asked her questions. In her experience, very few lawyers have accepted this invitation. She does not require lawyers to submit those questions in advance.

Judge Bums uses the box method to select jurors. Typically, she will put in the box the number of people needed for the jury, enough jurors to cover challenges, and a few extras. She leaves the rest of the prospective jurors sitting in the spectator section of the courtroom.

Judge Burns only requires attorneys to introduce the names of lawyers in the local office in which they serve. She does require the United States Attorney's Office to identify all members of that office statewide.

Jurors in a Civil Case
Judge Bums typically sits eight or nine jurors in a civil case. If the trial is longer than average, she will add one or two jurors, particularly if it is in the wintertime. She does not seat alternates in civil cases. Everyone who sits on the jury deliberates. She uses alternates in criminal cases, but they do not deliberate.

Juror Notebooks
Judge Burns is a big fan of getting a notebook for herself that contains important exhibits from the case. She also allows the jury to have notebooks, providing that the exhibits have been admitted into evidence.

Juror Notes
Judge Burns has never allowed jurors to take notes in her trials. She might consider revising this for a complicated case. However, she is concerned about the jurors taking the notebooks into deliberations and relying on the best note taker.

Jury Charge
Early in the case, Judge Burns and her clerk provide the lawyers with a preliminary request to charge. The charge is based upon submissions made by the lawyers in the pretrial memoranda and boilerplate that she has in chambers. The lawyers then have an early charging conference with her to react to that initial draft. She typically has more than one charging conference to make sure that the final charge comports with the evidence that has been admitted.

Post-verdict Communications with Jurors
At the end of the trial, Judge Burns always tells the jurors that they are allowed to talk to the lawyers, but she advises them not to. She makes it quite clear that they cannot talk about deliberations or the views of other jurors. She herself tries to talk to jurors after the trial.

Motions in limine
Judge Burns allows motions in limine. She says that she often cannot decide the issue until the trial is going and will reserve a decision. She typically addresses this outside of normal trial time and she usually allows oral argument on these motions.

Technology
Judge Burns notes that technology in a courtroom has not been used as much as she expected it to be. She has detected that some lawyers do not find that it is helpful. She does believe that use of the Elmo is quite effective. She has yet to see a paperless trial.

Counsel Placement in Court
Judge Burns does not require trial counsel to stand behind a podium. She requests that counsel not get too close to the jurors, and counsel must request permission from her to approach the witness and the bench.

Miscellaneous
Judge Burns requires post-trial briefs for bench trials. In advance of those trials, she expects findings of fact and conclusions of law.