Chambers Practices of
The Honorable Stefan R. Underhill
United States District Judge

PRETRIAL PREFERENCES

Oral Argument on Motions
Judge Underhill will hear oral argument on dispositive motions when, after a review of the papers, he is left with questions or concerns that counsel may be able to resolve through argument. He will rarely grant a dispositive motion without providing counsel a chance to argue the motion. He will typically hear oral argument on non-dispositive motions only when an argument will materially advance the progress of the case.

Referral to Magistrate Judges/Special Masters
Magistrate Judge Garfinkel is paired with Judge Underhill. Judge Underhill does not restrict the types of motions he refers and does not refer all motions of a particular type (e.g., discovery). Depending upon the respective judges' past involvement in the matter and competing time commitments, matters will or will not be referred. Once referred, matters may be referred back if these factors change over time. Judge Underhill will refer most settlement conferences to Magistrate Judge Garfinkel or to the special masters program.

Rulings from the Bench
Judge Underhill often rules from the bench, even on dispositive motions.

26(f) Reports
Provided counsel are reasonable in the selection of deadlines for the completion of discovery and the filing of dispositive motions, the 26(f) Report will serve as the basis for the initial scheduling order in the case. The report should provide the court with a meaningful overview of the case and should serve as a vehicle for the parties to consider the narrowing of claims and the possibility of settlement. Judge Underhill generally honors requests for status conferences or settlement conferences.

Resolution by Conference Call
Conference calls can be used in place of most conferences in chambers. Counsel who prefer a conference call to appearing at a conference should contact chambers to request a change. Judge Underhill requires counsel to participate in conference calls, often on short notice, when he believes that a prompt communication will facilitate scheduling or otherwise advance the progress of a case. He encourages counsel to contact his chambers when discovery disputes arise.

Sur-reply Briefs
Judge Underhill believes that sur-reply briefs are rarely necessary but generally grants motions requesting leave to file such briefs.

Letter Briefs
Judge Underhill occasionally requests that the parties file letter briefs, which are docketed as pleadings. Unless counsel are requested or granted permission to file a letter brief, briefs should follow the form required by the Local Rules.

Chambers' Copies
Judge Underhill appreciates receiving chambers' copies of dispositive and emergency motions and trial memoranda (including request to charge). Copies of other pleadings and motions need not be submitted to chambers.

Motions for Extension of Time
Reasonable requests for extension of time generally are granted. Counsel are strongly encouraged to negotiate a request acceptable to all parties and to indicate that the motion is on consent. Motions must describe the reason that an extension is needed and the number of extensions previously requested.

Motions for Reconsideration
Motions for reconsideration should comply with Local Rule 7(c).

Special Proceedings
Judge Underhill is extremely reluctant to grant ex parte temporary restraining orders and requires strict compliance with Rule 65. Hearings on applications for temporary restraining orders and preliminary injunctions normally are set by order to show cause and, whenever possible, only after a conference with counsel for all parties. The moving party should specify, in a draft order, the precise relief requested. The requested relief should be justified by memorandum and non-attorney affidavits.

Joint Trial Memoranda
Judge Underhill encourages the parties to attend a settlement conference before incurring the expense of preparing the joint trial memorandum. He uses status report orders and status conferences to determine both the trial readiness of a case and whether a case would benefit from a settlement conference. The pretrial order, calling for the preparation of the joint trial memorandum, issues after the dispositive motion deadline has passed. Compliance with the order may be postponed by joint motion if the parties are engaged in serious settlement discussions.

Judge Underhill's pretrial order is similar, but not identical, to the standing order regarding trial memoranda. A courtesy copy of the trial memorandum, including proposed findings of fact and conclusions of law or requests to charge, must be submitted to chambers.

When the parties are ordered to file their joint trial memorandum, the case will be placed on a trial calendar. At the call of the calendar, counsel should be prepared to report on the availability of all parties and witnesses. Jury selection for ready cases will be scheduled at the calendar call.

Lawyer Affidavits
Lawyer affidaviats may be used to identify exhibits and transcripts submitted in connection with dispositive motions. Lawyer affidavits are rarely, if ever, accepted as evidence on disputed issues of fact other than attorneys' fees issues.

Dispositive Motions
Judge Underhill often schedules dispositive motions for a motion day at which he hears argument and, when possible, rules from the bench.

Discovery
Judge Underhill prefers that discovery disputes be resolved by conference call whenever possible. Judge Underhill decides most discovery disputes himself and refers others to Magistrate Judge Garfinkel. Even after a discovery dispute has been briefed, Judge Underhill expects the parties to continue to attempt to resolve the dispute themselves. When a dispute cannot be resolved by the parties and requires the court's attention, costs may be awarded under Rule 37(a)(4).

Settlement
In his status report orders, Judge Underhill requires the parties to certify that they have discussed settlement in good faith since the issuance of the order. He will schedule a settlement conference whenever the parties request it or when it otherwise appears beneficial. Judge Underhill refers most settlement conferences to Magistrate Judge Garfinkel or to the special masters program.

TRIAL PREFERENCES

Hours of Day for Trial
Judge Underhill has lawyers report at 9:00 a.m. and is in session with the jury from about 9:30 a.m. to 5:00 p.m. He has the lawyers stay after 5:00 p.m. as necessary to deal with objections and procedural matters.

Days of Week for Trial
Judge Underhill ordinarily conducts trial five days a week; on long trials there will be occasional days off.

Time Limitations for Trial
Judge Underhill does not impose time limitations, but asks counsel for time estimates and presses them to lower their estimates if thinks they are unreasonable.

Time Limitations for Individual Examinations of Witnesses
Judge Underhill handles these time limitations the same as time limitations on trial, except in unusual circumstances (e.g., preliminary injunction hearings where there is limited time). In his pretrial order, he requires counsel to separately identify those witnesses they "intend" to call and those witnesses they "may" call. He also requires counsel to let the other side know in advance the order in which their witnesses will be called.

To save time in bench trials and time-sensitive matters, such as preliminary injunction hearings, Judge Underhill encourages the use of affidavits in lieu of direct testimony. He has also had counsel submit the testimony of a witness through a deposition transcript that has been color-coded, with the testimony that each side wants to bring out highlighted in different colors. The judge uses these techniques in cases where counsel agree that the testimony of the witness would be in accordance with the affidavit or deposition transcript. He does not require their use if there is a credibility issue or if counsel considers it important that the judge see the live testimony of the witness.

Judge Underhill routinely sequesters non-party and non-expert witnesses in civil and criminal cases, whether or not a party moves for sequestration.

Opening Statements
While Judge Underhill finds that opening statements frequently contain improper argument, he has never denied a request for an opening statement in a civil case. He has denied requests by the government for opening statements in criminal cases where the defense objects. He will interrupt what he believes to be an improper opening even in the absence of an objection. He has never read the pleadings to the jury in lieu of opening statements.

Closing Arguments
Judge Underhill reviews the requirements for closing arguments with counsel at the charge conference. He does not want counsel to approach the jury too closely during closing and identifies an "imaginary line" that they should not cross. The time limit for closing argument depends on the nature of the case. Judge Underhill will interrupt an improper closing arguments in the absence of an objection, and will also interrupt to remind counsel if they are exceeding their time limit.

Demonstrative Exhibits
Judge Underhill brings up the subject of demonstrative exhibits at the pretrial and encourages counsel to exchange them early so that any objections can be taken up well before counsel tries to use the exhibits at trial.

Moving Exhibits into Evidence
Judge Underhill encourages stipulations with respect to exhibits and tries to work out objections in advance so that exhibits do not have to be formally moved into evidence at trial.

Pre-marking of Exhibits
Judge Underhill requires exhibits to be pre-marked and exchanged in accordance with his pretrial order. He generally limits exhibits to those that have been identified before trial but does not strictly enforce that rule if the need for the exhibit could not reasonably have been anticipated. Counsel are to provide one set of exhibits for the judge and one for his clerk. As with witnesses, in their pretrial memos counsel are to separate those exhibits they "intend" to use from those exhibits they "may" use.

Procedural Motions and Arguments
Judge Underhill tries to handle these matters during breaks and wants counsel to alert him to potential problem areas in advance. If a matter arises during trial that requires argument or discussion out of the presence of the jury and cannot wait for a break, he prefers sending the jury out of the courtroom rather than taking the matter up at a sidebar.

Objections
Counsel are to state their objections in as few words as possible, without argument, in the presence of the jury, unless Judge Underhill asks for more detail. He will give an explanation of his ruling at a break. Counsel are free to inquire as to the basis for a ruling.

Jury Profiles
Judge Underhill feels uncomfortable about counsel conducting online searches for information about potential jurors.

Jury Selection
Counsel are not required to identify all of the attorneys in their firm during jury selection. Judge Underhill asks counsel for a statement of the case for him to read to the panel. He does not use the "box" method, but something similar. Counsel are told in advance the random order in which panel members will be questioned. The questioning occurs with all of the panel members in the spectator section of the courtroom. Counsel sit facing the panel with their backs to the judge. After individuals are removed for cause or challenged peremptorily, the judge questions as many panel members individually as he feels will be needed to get a jury. He asks standard questions as well as questions submitted in advance by counsel. He notes those jurors who may be subject to being excused for cause, and reviews those issues with counsel before they raise any challenges for cause themselves-he finds this saves time. After the judge has finished questioning the panel members, counsel are invited to sidebar to suggest additional questions for the judge to put to the panel members. Counsel can also request that a panel member be called to sidebar where counsel can inquire directly. Judge Underhill does not allow counsel to propose any questions within hearing of the entire panel.

Jurors in a Civil Case
The number of jurors selected in a civil case depends on the expected length of the case. At least seven will be selected, and usually eight. In a longer case, there will be more.

In criminal cases, fourteen jurors are selected and, if counsel agree, the alternates will be selected by lot prior to deliberations.

Juror Notebooks
Judge Underhill allows counsel to provide the jurors with binders containing exhibits that are in evidence. He finds that this is an efficient way to handle exhibits.

Juror Notes
Jurors are allowed to take notes in every case. Notebooks are provided by the court. Judge Underhill has not allowed jurors to propose questions to be put to witnesses.

Juror Charge
Counsel are directed to submit their requests to charge on disk. At the charge conference, Judge Underhill provides counsel with a draft of the charge. The jurors are given their own copies of the charge in writing so they can read along while the judge is delivering it.

Judge Underhill encourages counsel to agree to switch the order of closing arguments and the jury charge. He finds that this sharpens the closings. He will only do it if the parties agree. If the closings are given after the charge, the judge spends a few minutes after the closings to give the jurors some additional information about logistical matters so that there is a buffer between the arguments and deliberations.

Post-verdict Communications with Jurors
Judge Underhill disapproves of any post-verdict communications with jurors by counsel, which in any event are regulated by Local Rule 83.5. He instructs jurors that they do not have to talk to anyone about the case.

Judge Underhill talks to jurors after a case is over to answer any concerns or questions they may have. He avoids getting into specifics of the case, unless the jurors themselves raise an issue.

Motions in limine
The use of motions in limine is in accordance with Judge Underhill's pretrial order. He generally will not refuse to consider an issue that could have been raised by a motion in limine but was not.

Technology
Judge Underhill has not yet presided over a paperless trial. The use of overhead projectors, transparencies, Elmo, etc., is routine.

Counsel Placement in Court
Judge Underhill does not require counsel to request permission to approach a witness or hand up documents. Counsel are not limited to the podium when questioning a witness; however, the judge will direct counsel to back off if he feels they are staying too close to the witness for too long.

Miscellaneous
At the end of the day, Judge Underhill steps down from the bench and shakes hands with counsel. He finds that this practice promotes civility in the courtroom.