Antitrust and Unfair Competition Law

Competition: Spring 2017, Vol 26, No. 1


Moderated by Steve Williams1

In 2016, the Golden State Institute carried on its recent tradition of hosting a panel of trial court judges. This feature is always a crowd pleaser and this year was no exception as we heard from three distinguished federal district court judges who have a wealth of experience managing complex business litigation.

The panel:

  • The Honorable Denise Cote was appointed to the United States District Court for the Southern District of New York in 1994. Judge Cote received her Bachelor of Arts degree from St. Mary’s College, a Master of Arts degree in History from Columbia and a JD from Columbia Law School. She clerked for Judge Jack B. Weinstein of the Eastern District of New York. Prior to taking the bench, Judge Cote had experience in private practice and also as a federal prosecutor with two tours through the Southern District of New York US Attorney’s Office, first as an Assistant United States Attorney and later as Chief of the office’s Criminal Division. She also served in Washington DC as Special Assistant to the Assistant Attorney General for the DOJ’s Criminal Division. Judge Cote has presided over several antitrust cases during her judicial career. Among the most recent are the high profile and significant e-books trial, United States v. Apple, and litigation involving allegations of price fixing in the credit default swap market.
  • The Honorable Lucy H. Koh was appointed to the United States District Court for the Northern District of California in 2010. Judge Koh received her Bachelor of Arts degree from Harvard and her JD from Harvard Law School. Prior to taking the federal bench Judge Koh was a California Superior Court judge in Santa Clara County. Prior to becoming a judge, she worked in private practice in Silicon Valley. She also has served in Washington, D.C. as a special assistant to the U.S. Deputy Attorney General and as a Women’s Law and Public Policy Fellow on Sen. Ted Kennedy’s U.S. Senate Judiciary committee staff. Among the high profile antitrust matters that Judge Koh has presided over is In re High Tech Employee Antitrust Litigation which involved allegations of agreements among high tech firms not to poach each other’s employees. She is also presiding over the Federal Trade Commission’s challenge of Qualcomm’s alleged abuse of its market power.
  • The Honorable James Donato was confirmed to the United States District Court for the Northern District of California in 2014. Judge Donato received his Bachelor of Arts degree from the University of California at Berkeley. He received a Master of Arts degree in History from Harvard and his JD from Stanford Law School. He clerked on the Ninth Circuit for Judge Procter Hug. Judge Donato is currently presiding over the antitrust cases involving allegations of price fixing of capacitors and resistors.

[Page 186]

MR. WILLIAMS: Can you tell us a little about your background and experience in antitrust or complex commercial cases, any general thoughts about presiding over those cases, and tips, do’s or don’ts, things that you have found particularly effective, or perhaps not effective.

JUDGE COTE: I’ll begin this section of our discussions with you. I want to begin by thanking my law school classmate, Cheryl Johnson, for this invitation and Steve for the work he’s done in helping to organize this panel.

It’s a privilege to be here and to meet my two colleagues on my right and my left. I have been on the bench the longest of the three of us, and as you know, in the Southern District of New York, we have a very substantial docket with complex civil matters. I’d say the largest portion of our complex civil caseload is probably securities work, but we do quite a bit of patent work, commercial litigation generally, certainly antitrust and intellectual property work.

I think most of my colleagues would agree with this: We love our civil docket, the complexity and variety of it. We enjoy presiding over cases where counsel are well-qualified in representing their clients with vigor, and it’s a real privilege to be a federal judge and have the opportunity to serve the public in this capacity on this kind of docket. And indeed, we all do both pro se litigation and criminal litigation as well.

So what have I learned in my years of presiding over complex civil cases? I think the main things I have learned are how important it is for the judge to be hands-on in managing the litigation. I keep control of all discovery. I only use my magistrate judges for settlement purposes, and therefore, the two things I do early on are setting a schedule for the case that seems reasonable and appropriate to the specific piece of litigation.

I do it in consultation with counsel. I expect you to come to the initial conference fully prepared to describe to me the central facts of the case, the legal issues, to be responsive to questions I might have so I can get a better handle on how complex it is and how much time is going to be needed for discovery. I hope you’ll come with some creative ideas about how to manage the cost of discovery, perhaps staging discovery to get to the core issues first and reduce some of the burdens. I want you to be able to discuss what you need in order to have meaningful settlement discussions at an earlier stage. As we know, most cases settle, a few don’t, and each of us has had the experience of presiding over some cases that didn’t settle, but most cases settle. So the issue is how can you equip yourselves and your clients to have the information you need to evaluate the risks of litigation in an informed way?

I like counsel to be cooperative with each other in zealously representing their clients, but that means on the discovery front toā€”when there are problemsā€”really meet and confer in a serious way to tee up disputes. I take discovery disputes in a letter no longer than two pages, and then I just get counsel on the phone, hear you out and give you a ruling. I try to give rulings that can be applied across a case on a number of issues to reduce the burden of constantly haggling over issues and to give predictability to counsel. I try to set a schedule that is reasonable but fairly firm, and certainly by the point in the case where we set a trial date, from my point of view, it is firm, and it does not move.

So I don’t want to take up all the time. Those are a few thoughts.

[Page 187]

MR. WILLIAMS: Thank you. Judge Koh?

JUDGE KOH: So our docket is similar to what Judge Cote described, and I would say the most challenging thing for me for a really complex case is how to narrow the case so that we are not litigating the whole thing the whole time from beginning to end. It is a negotiation with the parties to figure out what is a middle ground, where one party may want to litigate everything. But if we can come to some agreement about a phased process, it is helpful because we have very limited resources to deal with very complex issues.

The lawyers in these cases are always superb and raise first-impression issues constantly. So if there are points where we can narrow what’s going to be the subject of fact discovery, then narrow further what’s going to be the subject of expert discovery, narrow further what’s going to be the subject of Daubert motions, narrow further summary judgment, and narrow further pretrial conference issues, and narrow further what’s going to trial.

I think that makes the case more understandable for the juryā€”to have a limited scope case to decideā€”and also makes it more manageable for us. Because these types of cases can be really crushing. We only have three law clerks. We are also trying to keep our other civil and criminal cases moving. And at any given time at least two of my law clerks will be managing something else. So it is me and one law clerk trying to manage a complex case in many instances. So we really need the help of the parties to make it manageable for us.

JUDGE DONATO: Let me start by telling you how happy I am to be here. I wasn’t exclusively an antitrust lawyer in practice, but I did a lot of it. But on the bench and in practice, I was thrilled by the degree of civility and professionalism that you all as complex business lawyers and antitrust lawyers bring to these really hard cases. I am happy to see that continues in the cases I have now in front of me as a judge. Thank you for that. It makes handling the cases a lot easier when you all treat each other with the degree of respect and decency that I have seen.

My background in practice is mainly monopolization and exclusionary conduct, so Section 2 and Section 3 cases. And our docket here is mainly price-fixing cases, Section 1 cases. I agree with Judge Koh and Judge Cote that there are significant, different management problems that I now see presiding over the case as opposed to representing a party in the case. I totally agree with everything my two colleagues have said. And things I would emphasize for you in terms of just general principles: one, come up with solutions, don’t just identify problems. If you have a roadblock or problems or things aren’t working well, I want to hear how you want me to consider resolving those. So it really helps when you come to a status conference or a case management conference with some solutions and not just identifying some problems.

And I also, I put a lot of emphasis on the value of oral argument. I tend to do a lot of it, particularly in antitrust cases. I know it varies from judge to judge. I like it, and I put a lot of work into getting ready for it. So when I walk into oral argument, I have read your briefs more than once. I have a law clerk who has spent even more time reading your briefs. We have read all the key cases, not every case, and I am having oral argument because I need your help to understand something. So I see this as an evolving dialogue over the life of these cases that can go on for three or four years. It is important to me when you come to oral argument you be more on top of the cases and the facts than I am, and you are able to answer very specific questions about what you said in your briefs, including legal questions, at a fairly high level of granularity. So I would recommend that oral argument is not, at least with me, not just an opportunity to repeat at a high level what you said in your briefs, we are past that, I want to get into the nuances and details because that’s where I am struggling and that’s where you can help me out. The best way for you to do that is to be on top of what you have said in your briefs and know the cases and the footnotes in the cases and all those little details. That really makes my job a lot easier.

[Page 188]

MR. WILLIAMS: Thank you. Judge Cote, could you give us your thoughts or expectations in terms of oral argument, what you expect from attorneys who appear before you?

JUDGE COTE: Bottom line is I don’t have it. That’s a bit of a joke. When I came on the bench, I had individual practices that expected oral argument on all motions. So I’d come to the bench for an oral argument with a draft opinion, expecting to hear argument and rule from the bench, because the judge I clerked for frequently did that. And I found it didn’t work for me. So what I do now is, my individual practices require counsel to write me if I haven’t decided their motion within two months of it being fully submitted. So I try to stay on top of my motions, decide my motions, get those opinions out there. But if I’m having difficulty deciding a motion based on my understanding of the law and the issues presented in the briefs, I will either have a conference call with counsel or issue an order that identifies the specific points that I need to hear oral argument on. So people will come prepared to respond to the specific questions I have identified, and they are free to argue anything else, but I hope that saves them, and more importantly, their clients who are spending money on preparing for the lawyers to prepare for oral argument, helps that dollar to be used efficiently.

So how many times do I have oral argument in complex cases? Again, maybe because I am managing discovery and discovery disputes, I have a lot of contact with counsel over the course of the discovery period. But, for instance, for summary judgment or motions to dismiss or motions in limine, I have oral argument infrequently. I usually find that identifying for me the correct standard of law and reading the briefs is sufficient.

MR. WILLIAMS: Judge Donato, could you tell us about your practices in terms of motions in limine and Daubert motions before trial, how do you like to handle them and what do you find effective and ineffective in having those things presented to you?

JUDGE DONATO: Sure. So there is, in my experience on the bench, a confusion about motions in limine, intentional or not. Now, motions in limine are not expressly provided for in the Civil Rules or the Evidence Code. They have just come to be. They serve a very practical purpose, in my view, at least one practical purpose, and that is to pre-digest any major evidentiary issues so you don’t have to burn time during trial with sidebars, which I don’t do, or disputes before or after the jury’s in the room or get hung up in your presentation because you don’t know whether one of your key things is going to get in, or whether one of your opponent’s key things is going to get in. In my view, a motion in limine properly addresses one thing only, should this evidence be admitted, is it prejudicial or inadmissible for some other reason, that’s it.

[Page 189]

That’s what I wrestle with, that’s why I put it in my standing order, although it has minimal effect. What I wrestle with is after summary judgment and after Daubert motions, what people call motions in limine which are really stealth summary judgment motions or stealth expert disqualification motions. I will not consider those at that point. We are a couple weeks before trial. The deadlines are clear. We have plenty of time to do those. Motions in limine, in my view, is the wrong vehicle and wrong time to raise those issues. Now, there are lots of evidentiary issues that could be and should be addressed in motions in limine. Bring them on. That’s what they are there for. Anything past that, in my view, is not a correct use for motions in limine.

MR. WILLIAMS: Judge Donato, how about Daubert motions, do you have live testimony from the experts or do you consider those on paper, do you have oral argument on those motions?

JUDGE DONATO: It depends. I front-load Dauberts. My Daubert deadlines are the same as my dispositive motion deadlines. That’s several months before trial, four to six months. I do that because Daubert motions are a mountain of work and doing them at the last minute is just a train wreck for my schedule, and I don’t think it is very good for the parties involved either. Most of the time I can do it on the papers. You’ve got to remember in Daubert, we are really doing only one thing: Should this testimony go forward, is it admissible? It is not whether it is shaky. If it is shaky, you do cross-examination, and that’s how you get shaky taken care of. This is really, is it reliable, valid, based on acceptable practices, is it admissible. When you have that touchstone, you can eliminate a lot of Daubert issues, in my experience, fairly quickly. I don’t have hearings that often, but when I do, it is because something has concerned me and I can’t answer it on the papers and I’d like to hear the experts and lawyers.

I’d say I have hearings 20 percent of the time. Most of it can be dealt with easily because they are really cross-examination and going to the weight of the evidence, not really going to the admissibility. It is kind of a waste of time for everybody and your client’s money to do that, but people seem to do it anyway.

MR. WILLIAMS: Judge Koh, can you tell us about your views on Daubert motions?

JUDGE KOH: I generally will have them briefed with summary judgment in case some of the summary judgment motions are dependent on the Daubert rulings. But if it is too difficult to rule on everything simultaneously, there might be a bifurcated ruling system. That way at least they are considered and analyzed simultaneously because many of the summary judgment motions will depend on how Daubert motions are ruled upon. So even if the opinion is issued later on the Daubert motion, it will at least have been analyzed simultaneously.

If there’s going to be an exclusion of an expert report, then I try to build in time to give leave to amend because I don’t want a party going to trial without a damages theory, for example. So we try to build in the Dauberts early enough so that if there has to be a new report created and depositions need to be taken, then we can still have that happen before the pretrial conference.

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MR. WILLIAMS: How far before the pretrial conference will you resolve Daubert motions?

JUDGE KOH: I usually have the hearing on summary judgment motions and Daubert motions at least two months before the pretrial conference.

MR. WILLIAMS: Can you tell us, Judge Koh, whether you have any special rules for cases that are high profile or newsworthy cases in terms of the attorneys’ conduct or parties’ conduct about commenting in the press?

JUDGE KOH: For trial I don’t have a special rule, but it depends on the case. It is a case-by-case basis. If there’s going to be a lot of media, then we will reserve a certain number of chairs for media. We also make sure that there are power strips in the courtroom so that the media can be tweeting and whatever else they are doing, and they have power to do so. Now, I heard Judge O’Toole, who is in Boston who had the Boston Marathon case. It was not a first come/first serve basis for whoever gets the media seats. In that instance, because they had so many victims and family members of victims come, they needed to haveā€”and they had such international interest in their trialā€”that they actually had to select which media would get certain seats, and they had to rotate people out during the duration of the trial. I haven’t had to have that happen.

If there is media interest and public interest that you can’t accommodate, then we have had sometimes up to two overflow courtrooms that have monitors with the witnesses, monitors with the attorneys and sound so that anyone else who didn’t make it into the courtroom, which is generally first come/first serve, can still hear and see what’s going on in the courtroom. I don’t have any restrictions on the parties. I mean, I think we have to be careful with that because they have First Amendment rights that we need to be respectful of.

But one thing that we do do, also, for the media is that any time there’s a jury note, we actually file it on ECF. So if you’re a journalist in some other part of the country or not in the courthouse, you can see that a note has been received, and you can see the substance of it. We also file the response to the jury note on the docket. We file at the end of the day. "The jury has adjourned and will resume tomorrow morning." We actually file a noticeā€”the juror note that says we have a verdictā€”and provide time, usually about half an hour, for everyone to get to the courtroom, so they can all be there to receive the verdict. We also set up a media phone tree so that the media can notify each other when something happens in case they don’t have ECF access.

The one thing we do for our jurors is thatā€”to try to resist the temptation of reading about the trial while it’s happeningā€”our librarian has put together, at least is willing to put together, and has done so for at least the three Apple-Samsung jury trials, just a scrapbook that puts together all the articles that have been written about the trial. It is only given to the jurors when they are discharged. Because then, if they know they are not going to miss anything because they are going to get a copy of everything at the end, we are hoping that will relieve any temptation to look at things before their service has been completed. We would do that in any case where that would be an issue.

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MR. WILLIAMS: Judge Cote, can you tell us how you handle evidentiary issues during trial, what methods you use, what’s effective and ineffective in arguing evidentiary issues and when you would take briefing on those issues?

JUDGE COTE: I applaud and try to follow what Judge Donato described as his approach to motions in limine. I think they are very important to tease out in advance of trial the critical evidentiary issues. They help educate me so I can think about the issues in advance of trial. But some of the briefing, I think, is to sensitize the Court to issues where I can’t give you a final ruling until I see context during the course of the trial. But I become much better educated because of the motions in limine, and I can give a presumptive ruling. Sometimes it’s accompanied by a caution, if you open the door on this issue, then my ruling may change, or you have to give notice or whatever. Sometimes the rulings have layers of complexity to them, but I find motions in limine to address evidentiary issues before trial very helpful. So at the trial, like Judge Donato, I don’t have sidebars. I say that; I explain all of this in the final pretrial conference.

I think the most important thing for litigators is that they not be surprised, that they can prepare, that they understand the rules of the road, that they know the procedures that will be followed during the course of the trial, and they can concentrate on the evidence as opposed to trying to wonder what I am going to do or how the trial’s going to be conducted.

We meet from 9:00 to 9:30 each day, the lawyers and I, to deal with any new issues that have come up or they anticipate coming up that day. Then we have witnesses on the stand from 9:30 to 5:00, lunch break, mid-afternoon, mid-morning recess, jury is dismissed promptly at 5:00. So I get somewhere between five and a half, six hours of testimony in each day. So counsel, if they want to raise evidentiary issues, they know to do it first by talking to their opponent. I will ask, "Have you raised this first with your adversary?" Frequently things are worked out when they do that. But if they have done that, then I’ll use that time between 9:00 and 9:30 to hear argument about things that hadn’t been anticipated in advance of trial, or after 5:00 o’clock, but we don’t invade the jury’s time with evidentiary disputes.

MR. WILLIAMS: Judge Koh, could you tell us about jury selection in your courtroom, do you use questionnaires, what input do you permit the attorneys to have in questionnaires, and who conducts the voir dire?

JUDGE KOH: So for voir dire, the parties submit proposed questions, and I try to incorporate at least all of the topics, if not all of the questions, in my voir dire. If I think the question is, perhaps, seeking information that is not proper or too argumentative, I won’t include it in my own. Then I give the attorneys an opportunity to do voir dire as well. That is limited in time, and that is also in negotiation with the partiesā€”how much time each side gets. Hopefully with the proposed questions and then the attorney voir dire, hopefully we have been able to cull the information that the parties want from prospective jurors. So I actually don’t do a questionnaire. I think it increases the time. Then you have to photocopy it, and everyone wants to research it. And I like to give a trial estimate that’s going to stick. So to try to narrow things to the bone of what is necessary, I actually don’t have questionnaires.

[Page 192]

I am also concerned in the cases that are big enough that would need a questionnaire that they are going to start surveilling the jurors’ houses, interviewing neighbors and doing massive amounts of research, and I’d like to discourage that. Obviously the online research is going to happen, checking on bankruptcies and court filings and whatnot, but I would prefer to limit actual in-person investigation that goes on of potential jurors. But I don’t put any limits on jurors’ use of social media other than giving the Ninth Circuit model of conduct instruction, which says you cannot use any social media to discuss the instant case or any of the parties or any issues in the case.

MR. WILLIAMS: Have any of you put any limitations on attorneys using social media to investigate potential jurors and the jury pool, Facebook or other social media?

JUDGE COTE: I have not.

JUDGE DONATO: Well, as you know, it is a big topic in our district. At least one of our judges has spent a lot of time thinking carefully about it and has identified significant issues about it. I am still personally formulating my opinion.

Now, there are old, hard-and-fast rules that stand, whether it is using a telephone, knock on the door or online media, you cannot have contact with the juror. You can’t do that. That rule is across the board no matter how you do it, whether you are touching them through Facebook or sending a private detective to their place of business, you can’t do it. Short of that, I am not sold yet on whether a ban on just looking on social media is a valuable thing. It is 2016. The world has given us more information and more access to information than we’ve had before. I am not necessarily opposed to having that.

As a practical matter, in my courtroom, voir dire and jury selection goes very fast. You are generally in on a Monday morning at 9:00 a.m., and we have a jury impaneled typically by noon, and you are doing opening statements that afternoon. So you are not going to have the time to dial people up on peremptories and everything else happening and figure out some question that you want me to ask or you want to propose to ask.

So the issue that I have heard is people research jurors as time goes on and then pitch their closing arguments, for example, to the juror. If you have a juror who loves to cook, you may suddenly come up with a number of chef analogies in your price-fixing case. Now, whether that’s a real risk or not, I am not persuaded yet. I am still a little bit on the fence, and I want to proceed cautiously because it is not necessarily bad or unfair to do jury research as long as you do not break the cardinal rule, which is you don’t interact with them.

MR. WILLIAMS: Judge Cote, I believe you use time limits in your trials. Can you describe how you use them and under what circumstances you provide relief from any time limits?

JUDGE COTE: Yes, I use time limits in every civil trial, jury or non-jury. I decide what the time limit should be in consultation with counsel at the final pretrial conference. I frequently give them advance notice that that will be one of the topics that we will discuss at the final pretrial conference. I study carefully the witness list. By this time, I hopefully am very familiar with the case. I am making my own judgment of what the case requires, but I want to hear from counsel. It’s rare where we don’t reach agreement at the final pretrial conference.

[Page 193]

They may talk me into a bit more time than I had thrown out as a suggestion, but we usually come to an agreement. Exceptions to that are rare. I don’t include the summation because when I used to include the summation, then I would have to make exceptions to make sure they had enough time to have the summation argument. So I prefer that that not be included. So basically the clock is running whenever the attorney is on their feet in front of the jury for opening, direct, and for cross-examination. I keep the clock. I tell counsel at the end of each day what time they have used, and towards the end of the trial how much time they have left each day. If counsel want, they can agree on some neutral timekeeper other than me; that’s fine with me, too. I give them that option, but usually they don’t choose that option. It’s very effective, I think, very effective. Frequently people leave time on the clock. It is a way of managing the trial, managing your resources, thinking carefully about which witnesses are important and how much time you want to spend on a particular topic. Usually it’s split the same amount for plaintiffs and defendants, but there have been a few exceptions, in my experience, where it made sense to make exceptions. We talk about all of that ahead of time.

MR. WILLIAMS: Judge Koh, do you use time limits or any other means to make sure trials keep moving and stay focused?

JUDGE KOH: In all civil trials there are time limits. In criminal cases, you cannot impose any time limits. I do put time limits on both opening and closing. Any time you are speaking, the clock is ticking. And I try not to spend any time when we have a jury present, whether they are in or out of the courtroom, on evidentiary objections. So we unfortunately do those at night. We do the rulings at night so you know in advance of the next day what exhibits or demonstratives or witnesses or deposition excerpts are in or out, and we don’t waste the jury’s time on that. Obviously there can be spontaneous verbal objections during the trial, but for anything big that needs to be briefed or something that needs ruling in advance so you can prepare your demonstrative clips, that we rule on one day in advance.

MR. WILLIAMS: Judge Donato, do you do anything to encourage participation by young attorneys at trial?

JUDGE DONATO: Well, the answer is yes. I am happy to say that my colleagues who preceded me to the bench have really set the mark for that. I am at this point a merely very enthusiastic supporter of it. The number of trials that we do these days is way down. So in our district, the last time I looked, we have about a one and a half percent trial rate. So 98.5 percent of all cases don’t go to trial. So it is a rare opportunity.

If we are going to propagate and continue a trial lawyer, jury trial system, you have to train people. They have to have the opportunity to get up in court and do witnesses. You all had that, and somebody made that opportunity available to you. I just see the judges in our district have been very consistent in requiring in all their cases that you at least think about it. We can’t order you to do it for obvious reasons, but we do encourage it. In my experience, the roadblock is often the client. It can be hard, and particularly in a big antitrust case where there may be conduct remedies that are really significant for your client’s business, let alone huge damages that are going to get trebled, it can be understandably a little bit uncomfortable to go to your client and say, "We’d like to have this wonderful third-year associate do one of the witness exams." I know from my own experience as a lawyer and kind of reading between the lines in court, clients often don’t want to do that. But I really would recommend to you, as your point of responsibility, to be candid, that you get your clients to a space where they know that younger lawyer enough to trust that person. That means before you get to trial, they have seen that lawyer in action, they have read that lawyer’s work, and they get a comfort level with it and they are willing to say, "Sure, they can do that witness."

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Obviously you are probably not giving that younger lawyer a mission critical witness. But you should be able to get in every case some set of witnesses. And they don’t just have to be throwaway custodians, but some meaningful set of witnesses that young lawyers can do. I would like to see more of it. It’s been a little bit of a problem.

MR. WILLIAMS: Judge Cote, graphics are a big part of presentation in cases. What do you find effective and ineffective in the use of graphics, and how do you expect the parties to exchange those things and resolve issues of graphics before bringing them to court?

JUDGE COTE: Yes. Graphics are wonderful. I remember when I started trying cases, you know, we had these binders of exhibits and the jurors would be given volumes of exhibits, sometimes more than one, and you know, turn to Tab 342, Page 6, and it was important, but this is certainly a better world that we live in today. So I think a facility with technology is essential for the modern courtroom lawyer. You have to have good tech support. You have to have command of how that technology is going to work in the courtroom. You have to test it out yourself. You have to come before the trial opens and make sure it’s working in the way that you want it to work. It’s not a responsibility you can pass off to anyone else.

I require graphics to be shared in advance with each other. I think it works both ways. I expect the parties to come up with what they think in the particular case will work best for them, whether it is sharing them a week ahead of time or 24 hours ahead of time. Whatever is good for one side is good for the other. So I haven’t found a lot of disputes about that. The main thing is to not be blind-sided. So that if there is an objection or dispute about a particular presentation in terms of a demonstrative, let us say, that I have time to rule, and they have time to revise it in accordance with my ruling without holding up the trial.

I think lawyers by and large are fabulous working with the technology. They are great using it with examination of witnesses, particularly cross-examination. They can go to the snippets of the deposition that serve as impeaching evidence instantaneously. They can pull up the right document with highlighted portions that they want the jury to focus on. Every juror has access to little screens, plus the big screen in the courtroom. Everybody can see everything quickly and efficiently.

Of course, when it comes to summations, I have one comment. I think you have to be careful not to overly-rely in the summation context on the graphics and the electronics. I have seen overreliance. A lawyer has this extraordinary opportunity to build a relationship of trust with a judge and with a jury. And you want to be able to reap the rewards of what you’ve built in that courtroom at the time of summation and speak directly as a human being to these jurors. If it is not a jury, to me. So you want to make, I think, intelligent decisions about when the graphics, when the technological support is going to give you bang for your buck and not over-rely on it. It should not be a PowerPoint presentation in summation, in my view.

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MR. WILLIAMS: Judge Koh, do you allow any direct address to the jurors during the course of trial by the attorneys, for example, in closings or statements to the jury?

JUDGE KOH: I don’t do that. The Ninth Circuit model jury instructions on conduct says the jury has to keep an open mind and not start making any decisions about the issues until after they have heard the views of all of the other jurors and have discussed all the evidence with the other jurors in deliberations. So I would prefer that all of the evidence come in, because I especially would not want, if there’s only been the plaintiff’s case, for there to already be conclusions and arguments made, when the defense hasn’t been able to put on their case. So I actually don’t allow that because I do want the jurors to keep an open mind until they have heard everything and all the evidence, read all the final jury instructions, heard all of the closing arguments, and then at that point, still hopefully have an open mind until they start deliberating.

MR. WILLIAMS: When a plaintiff calls a defense witness as part of its case, how do you handle that? Do you permit the defense to use that witness to put their case on, or do you have the witness recalled during the defense case?

JUDGE DONATO: I have a strong preference, and so far every trial I have had has agreed, the trial lawyers have agreed with this, the witness comes on once and only once. I think it is better for the jury and litigants, and it makes the experience a lot more efficient for the jury. So you get on, you ask your questions, they don’t get terribly hung up on who is doing direct, redirect, cross, re-cross, rebuttal. As you know, the Federal Rules of Evidence expressly say that we can permit examination on cross that is effectively a direct examination. So the rules give us, as district judges, a lot of leeway to find a practical, easy-to-present way to run the case. So I really favor one-time-only on the stand. By the way, it eliminates a lot of back-and-forth of beyond-the-scope objections and technical sideshows. Things that just really gum up a trial and waste time, in my view, and do not materially add to a better jury trial product.

MR. WILLIAMS: Given that, how much leeway do you give the attorneys in terms of, say, a witness is being presented direct, cross, re-cross, re-direct, how much time or leeway do you give the attorneys, or do you find that’s managed by the time limits?

JUDGE DONATO: Like my colleagues, I give overall time limits. They can spend it however they want. They have a witness they want to spend six hours with, that’s their call. I make it clear at the beginning, because I completely agree with Judge Koh, there should be no mystery about what the rules are. These are the rules, you are going to be held to them. You will not get extra time if you mismanage your clock unless there’s some extraordinary reason for it. So within that, if you have got 15 hours per side, you can choose to use your time any way you want. That’s up to you.

[Page 196]

MR. WILLIAMS: I’d like to ask for each of you, do you ask witnesses questions and do you permit the jurors to ask questions of witnesses? And if you do, under what circumstances do you do that?

JUDGE COTE: In a jury trial, I do not ask questions, and I do not permit the jurors to ask questions. I am in a circuit that strongly discourages jurors being able to ask questions, in part, because of concerns about what Judge Koh recognized just a moment earlier in a different context, the need for jurors not to become advocates but to keep an open mind.

In a non-jury case, I do feel free to ask questions. It is often better that I restrain that urge, but when I really need clarification, I do not hesitate.

MR. WILLIAMS: Judge Koh?

JUDGE KOH: I don’t ask any questions of any witnesses, and I have done it both ways in allowing jurors to ask questions. And my concern with that was in virtually every instance, we were not really able to answer the jurors’ questions. So it was dissatisfying for them, and it took time to figure out how to respond to the question, and it sort of messed up the time estimate. So I don’t allow it anymore, but I did try it in a couple of trials.

MR. WILLIAMS: When you permitted jurors to ask questions, whose time was that out of, or was it excluded?

JUDGE KOH: This is when I was in Superior Court, and I didn’t have time limits at that time.

JUDGE DONATO: I am actually a big proponent of allowing jurors to do it. I have had very good luck. I fully appreciate the concerns. I just did a patent trial last month, very complicated patent trial, and the jurors asked a lot of outstanding questions, in my view. The questions really helped them get a handle on a case that was really difficult for everybody to understand. So I encourage it. Every juror in all my cases gets a binder. It has a lot of things in it, but one of the things it has is a blank form, about ten pages of blank forms, per juror, for questions.

What I do is after the exam is done, before I discharge the witness, I ask the jurors, are there any questions? And after I do that the jury leaves for a few minutes, the witness is still under oath, I talk about it with the lawyers, then bring them back in. It has not proved to be a time problem. I have been able to do it efficiently. I do not charge either side for that time. I have been lucky. Our circuit is not hostile to it, so that makes a big difference. The Ninth Circuit is open to it. There’s a best practices jury manual from the Ninth Circuit Committee that, in my view, encourages it.

You have to, as Judge Koh says, play it by ear and get the right case. I can imagine there might be a case where I would be less inclined to let that happen, but my presumption is the jury will be asking questions.

I personally do not ask questions. It is totally fine. As you know, the Federal Rules of Evidence say we can do it. I don’t do it because I don’t want to disrupt what the lawyers are doing. There may be a question that I think is important, and there may be a trial lawyer wanting to play this out in a different way. I don’t want to step on someone’s script by asking it at the wrong time. I also worry that judicial questions get way too much weight when the jury hears them. I have asked once or twice, but I try hard not to.

[Page 197]

MR. WILLIAMS: Judge Cote, I imagine one of the things before trial that is very difficult for the Court are the parties’ designations of deposition testimony and objections and counter-objections to deposition testimony. How do you handle resolving those issues before trial?

JUDGE COTE: Thank you. I like to take objections to depositions in the following way: I like an individual witness’ deposition color-coded with the excerpts that the plaintiff wants marked with one color, the excerpts that the defendant wants marked in another color, and then the parties’ objections in the margin. Then I can go through them and rule and I have the entire deposition in context before me, and that’s fairly efficient. But there are complex civil cases where there may be 20 witnesses and hundreds of objections. And so if it’s going to be a massive undertaking, I may ask each side to identify ten exemplars of objections. I rule on those, ask them to apply them across the board for that witness or the witnesses. And if it doesn’t resolve all their problems, then give me another ten. As a result, I can, with care, examine the particular kind of issue that one party is having with deposition testimony, give them my citations to the authorities I am relying on in making my rulings, and I have found that fairly efficient and helpful.

[Page 198]



1. Steve Williams is a partner with Cotchett Pitre & McCarthy, LLP in Burlingame, California.

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