A refresher on pretrial requirements in South Carolina Federal District Court, 0720 SCBJ, SC Lawyer, July 2020, #42

• Author: By Keegan Miller
• Position: Vol. 32 Issue 1 Pg. 42

It’s the Final Countdown: A refresher on pretrial requirements in South Carolina Federal District Court

Vol. 32 Issue 1 Pg. 42

South Carolina BAR Journal

July, 2020

It’s the Final Countdown

By Keegan Miller

So, the time has finally come. You have taken all the depositions (at least the plaintiff’s), exchanged more than one set of written discovery responses (and objections), amended the scheduling order (at least twice), attempted resolution at mediation (which stalled), and fell short on your motion for summary judgment. Now your case is about to be called for trial before a United States District Court Judge for the District of South Carolina. What now? – or more commonly - What the heck are we actually supposed to do next?

In my short tenure as an attorney in private practice and a judicial law clerk in the District of South Carolina, it has become readily apparent that the disappearing civil trial has also led to the disappearance of once common civil trial skills and preparation techniques. The decrease in regular exposure to the civil jury trial has increased an unfamiliarity with the rules and requirements of pretrial proceedings in federal court. This article is a refresher on the most overlooked, unknown, and forgotten pretrial requirements in the Federal Rules of Civil Procedure and the Local Civil Rules in the District of South Carolina (“Local Rules”). I have also included a spotlight on certain District Court judges’ idiosyncrasies and some “pro tips” I have learned along the way.

First, it is important to note that although the Federal Rules of Civil Procedure do contain some specific pretrial deadlines, a majority of the pretrial deadlines applicable in this District come from the Local Rules. Additionally, several of the initial pretrial deadlines are triggered not by the trial date, but the jury selection date. The jury selection date often falls within the first week of that term of court. Trial terms begin on the date of jury selection (this holds true even for bench trials) and may last one to two months.¹ Attorneys are expected to be ready for trial on the date set for jury selection.² Some judges may require you to disclose conflicts with the trial term shortly after the initial scheduling order is issued.

It is also important to note that each judge has the authority to overrule or change the deadlines and requirements within the Local Rules.³ Accordingly, be sure to examine the scheduling order, that judge’s standing orders, standard and specific fling preferences, and any other directive issued by that judge to ensure compliance with the Court’s orders.

Pro tip: If you are unsure of the jury selection date for the term of court set in your scheduling order, the District Court maintains a jury selection calendar indicating each specific judge’s jury selection date for a given term of court and division.⁴ These dates are subject to change, however. Due to the dwindling number of cases in any given term, judges have been known to cancel their selection dates and borrow from another judge’s jury pool on a different date in an effort to make jury selection more efficient as a whole. It is possible to call the presiding judge’s docket clerk to confirm the jury selection date.

30 days prior to trial

Technically, Federal Rule of Civil Procedure 26(a)(3) requires that all parties file witness lists (including deposition designations) and exhibit lists 30 days before trial with any resulting objections coming due 14 days prior to trial. However, this deadline is often amended or deleted in the case’s scheduling order or by a particular judge’s standard preferences. This is especially true considering the exact date of trial is often unknown 30 days in advance of jury selection (which is technically when the parties must be prepared for trial), and the substantive requirements of this rule are duplicated in the pretrial briefs discussed below.

Judge’s spotlight: Judge Joseph F. Anderson Jr. exempts all of his civil cases from the pretrial disclosure requirements in Fed.R.Civ.P. 26 (a)(3) as noted in his standard scheduling order. Over the years, Judge Anderson has found that requiring attorneys to designate witnesses and exhibits 30 days before an often-uncertain trial date encourages “over-designation” which creates confusion later. He believes that a firm application of the “meet, mark, and exchange” date, 14 days before jury selection (which, obviously is a day certain) is more realistic and works better.

14 days prior to jury selection

As set out in the Local Rules, the parties are required to meet, mark and exchange exhibits two weeks before a jury is selected.⁵ This rule requires an in-person meeting of the attorneys in which they hand over physical copies of their proposed exhibits and mark them for trial. Attorneys may often attempt to skirt this requirement by sending document laden emails or exhibit lists accompanied by less than substantive discussion in lieu of a face-to-face exchange. However, these actions violate both the spirit and letter of the rule. Attorneys for each party are expected to shake hands, look each other in the eye, and put their cards on the table.

This meeting is extremely important as it is often the first time all attorneys are in the same room, unconstrained by clients, with an eye towards trial. You should be prepared to take all the time necessary to review opposing counsel’s exhibits, discuss possible objections or redactions, stipulate to admissibility and generally discuss the anticipated flow of trial. Any time expended during this meeting is sure to pay dividends at trial.

Judge’s Spotlight: Judge Richard M. Gergel requires a certificate of compliance with the meet, mark, and exchange requirement in which counsel must identify the physical location in which they met.

Pro tip: Instead of shying away from this rule, lean into it. As a fond lover of anything edible, I would suggest blocking out several hours in the big conference room and ordering in lunch for you and opposing counsel. Do not hesitate to bring your associate, paralegal, secretary, and IT support. The benefits of in-person civility and coordination at this stage cannot be overstated.

The exhibits you exchange must be numerically marked as they will be used at trial with exhibit stickers such as those shown below: Try to agree on the admissibility of at least some exhibits at this meeting. Unresolved objections are to be included in the pretrial briefs discussed below. Exhibits can later be excluded by the Court or withdrawn by the parties, but they should never be renumbered. Under the Local Rules, failure to meet, mark and exchange exhibits may be deemed a waiver of the right to use such exhibits. It may be wise to go ahead and discuss the use of video deposition designations and written deposition designations along with the specific portions of those depositions to be offered at trial.

Judge’s spotlight: Judge R. Bryan Harwell has made a comprehensive deposition designation form available on the Court’s website which may come in handy during this meeting.

Pro Tip: Try to avoid duplication by removing copies of exhibits already included by opposing counsel before marking with exhibit numbers. Parties can alternatively provide “joint exhibits” for use in trial if they will be heavily relied on by both parties. (e.g. the contract in a breach of contract case or a highlighted insurance policy in a coverage dispute.)

7 days prior to jury selection

One week before jury selection, the parties must submit a pretrial brief.⁶ The Local Rules of this District include 15 specific subparts required in the pretrial brief including a brief statement of the facts, damages, witnesses, exhibits, and requested voir dire. This document is imperative as it is your chance to inform the Court about the current posture of all remaining claims, issues to be presented at trial, and the evidence you will introduce to tell your client’s story. Use this opportunity to educate your judge on the vital facts, contested issues, and unique applicable law. But please, do it briefly. There is no need to try the case on paper. Your judge will be present at the trial.

It is important to remember that the pretrial brief is not exchanged between the parties or fled with the Court. Instead, parties should send their briefs directly to chambers. Although not found in any of the Local Rules, the judge’s “standard preferences” for electronic flings requires that each party send a full signed paper copy to chambers in addition to emailing a copy to chambers in WordPerfect or Microsoft (MS)-Word format.⁷ Additionally, copies of the final list of exhibits, along with objections, and requested voir dire are to be served on opposing counsel. This submission can always be supplemented later if necessary.^[8]

Judges’ spotlight: Judge Cameron M. Currie requires pretrial briefs to be filed with the Clerk of Court as part of the public record and served on opposing parties. Judges Harwell and Margaret B. Seymour do not require a paper copy of the pretrial briefs.

Pro tip: Review the standard jury questionnaire to ensure your voir dire does not duplicate any questions already propounded to potential jurors or that overlap a judge’s standard voir dire. Also, failure to submit voir dire seven days before jury selection results in a waiver of the right to submit voir dire requests.

Pro tip: Although not required, it may also be wise to submit a copy of your marked exhibits (even if only electronically) to the Court along with your pre-trial brief — especially if they are subject to objection by opposing counsel. Also, jury lists and copies of the juror questionnaires become available for request from the Clerk of Court one week before jury selection.⁹ Standard request forms can be found on the Court’s website.¹⁰ These questionnaires contain an abundance of valuable information sure to be useful in evaluating potential jurors. The jurors are questioned about everything from biases towards corporations to the bumper stickers on their cars.

7 days prior to trial

Proposed jury instructions must be submitted to the Court and served on opposing counsel a week before trial.¹¹ Failure to meet this deadline is deemed a waiver of the right to submit proposed jury instructions. Several judges have their own set of standard and boilerplate jury instructions available on the Court’s website.¹² There is no need to offer duplicative charges if the judge has already addressed the issue in his or her standard charges.

Judges’ spotlight: Judges Currie, Harwell, Anderson, Hendricks, Mary Geiger Lewis, Sherri A. Lydon, Gergel, Seymour, and Terry L. Woo-ten all have personalized versions of their standard jury charges available on the Court’s website. Some also have specialized instructions for submission of proposed charges.

Pro tip: Do not be afraid to consult with opposing counsel and submit joint requests to charge on issues or areas of the law you know will be presented to the jury. This is sure to streamline any mid-trial charge conference. Some judges even require collaboration and joint submissions. Also, try to write your charges with the lay juror in mind. Avoid legalese if possible.

Other deadlines

Curiously absent from the Local Rules is a deadline for motions in limine. To compensate for this however, several judges in this District will include such a deadline in their standard scheduling order. Although the rules do not prescribe a deadline, it is often wise to file such a motion well in advance of trial or a pre-trial conference to ensure that opposing counsel and the Court have enough time to review it and to prevent any delay in the trial itself. Judges rarely appreciate a motion in limine on the eve of trial. This is especially true if it requires additional research or review of a cumbersome exhibit before deciding.

Judges’ spotlight: Judge J. Michelle Childs includes a motion in limine deadline within her standard scheduling order that usually falls about a month prior to the date that the case is subject to being called for jury selection and trial. Judges Donald C. Coggins Jr., Lewis, Lydon, and Harwell have scheduling orders which include not only a motion in limine deadline but also a seven-day window to respond. Judge Henry M. Herlong Jr. requires motions in limine two weeks prior to jury selection. Judge Gergel requires motions in limine 15 business days prior to jury selection. Also absent from the Local Rules is a deadline to submit requests to strike jurors for cause. However, most judges require that requests to strike for cause be submitted one to two business days prior to jury selection. Most judges have made a standard form for strikes for cause available online and some require the parties to submit their requests jointly¹³

Judge’s spotlight: Judge Hendricks issues a separate notice containing deadlines for the Fed.R.Civ.P. 26(a)(3) pretrial disclosures and objections, motions in limine, pretrial briefs, and marking of exhibits once a specific jury selection date and trial date are scheduled. Judge Gergel has created a convenient “pretrial checklist” in his special instructions which outlines all of his specific procedures and deadlines.

Pro tip: Do not be afraid to reach out to chambers or your judge’s docket clerk with non-substantive questions regarding these procedures. Normally, an email to chambers, with opposing counsel copied, is an appropriate form of communication with the court. These requirements can be numerous and varied, but most clerks are readily familiar with their judge’s preferences and are happy to help. Remember that any request for substantive relief, however, should most likely be presented as a formal motion.

Another consideration to be made is that the Local Rules have no deadline for Daubert type motions. Most judges include such a deadline within their standard scheduling orders concurrent with a dispositive motion deadline.

Other pre-trial considerations

Come to trial prepared with all exhibits and enough witnesses. Do not make the judge wait or break for the day because you do not have your witnesses ready to take the stand.

Pro tip: Having trouble scheduling a date certain with your District Court Judge? Consider consenting to trial before a Magistrate Judge. In this District, Magistrate Judges are available to conduct all proceedings in a civil action (including a jury or nonjury trial) and to order the entry of a final judgment. The judgment may then be appealed directly to the United States Court of Appeals like any other judgment of the District Court. However, a Magistrate Judge may exercise this authority only if all parties voluntarily consent. A standard consent form can be found on the Court’s website.¹⁴

Well, now it is time to sound the alarm, batten down the hatches, and rally the troops (associates and paralegals alike). Hopefully this article has offered some clarity on the various pretrial requirements and provided a solid starting point on your path to ultimate resolution. Good luck!

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Notes:

[1] Local Civ. Rule 16.02(C)(14) (D.S.C.).

[2] Id.

[3] Local Civ. Rule 1.02 (D.S.C.).

[4] www.scd.uscourts.gov/Judges/calendar. asp?date=3/25/2020

[5] Local Civ. Rule 26.07 (D.S.C.).

[6] Local Civ. Rule 26.05 (D.S.C.).

[7] www.scd.uscourts.gov/CMECF/preferences.asp

[8] Local Civ. Rule 26.06 (D.S.C.).

[9] Local Civ. Rule 47.02-.03 (D.S.C.).

[10] www.scd.uscourts.gov/records/copies.asp

[11] Local Civ. Rule 26.09 (D.S.C.).

[12] www.scd.uscourts.gov/FORMS/index.asp

[13] www.scd.uscourts.gov/FORMS/index.asp

[14] www.scd.uscourts.gov/FORMS/index.asp

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