RETIRED JUDGE JERRY McBRIDE—PREFERENCES
PROCEDURES FOR ILC MOTIONS IN JUDGE MCBRIDE’S CASES
*NOTICE TO COUNSEL-APRIL 20, 2020-Use of Masks in Courtroom 204
As you are aware, one rule in my courtroom during the COVID-19 emergency is that each person in the courtroom maintain social distancing from other persons in the courtroom. This means that there needs to be physical distance between persons of six feet or more. As I have observed persons in my courtroom over recent days, I have become aware that, while this is a rule, it is not always observed.
Even under the most recent pronouncements of Governor DeWine and President Trump, social distancing is strongly recommended. Governor DeWine has gone so far as to say that there will be a “new normal” including social distancing until such time as there is a vaccine that is developed and which is made readily available throughout the country.
Beyond that, I have persons who come in my courtroom who are at risk, either by reason of age and/or medical condition. The recommendation has been made that at risk individuals need to be particularly on guard until such time as a vaccine is made available. At risk individuals who come in my courtroom have a right to expect that reasonable precautions will be taken for their protection.
In this regard, in addition to advocating social distancing, the Center for Disease Control has recommended wearing face coverings in public settings where social distancing measures are difficult to maintain in order to slow the spread of the virus and to help people who may be asymptomatic but who have the virus from transmitting it to others. Governor DeWine has strongly encouraged the wearing of face masks when persons are out in public. As he said recently, “In many cultures around the world, wearing a mask is just part of the culture- it is a socially accepted act of kindness.” DeWine has further said that wearing masks will “be part of what we do until we’re done with this virus in a year or so.”
Today, I was wearing a face covering in court, and I intend to continue to wear a face covering in the future.
Because I believe it is necessary for all persons to wear face coverings for the protection of other persons in my courtroom, I am requiring effective Tuesday, April 21st, that every person, including but not limited to court staff, attorneys, parties, witnesses, and jurors, wear a face covering while in my courtroom. The face covering can be as simple as a bandana and can be as complex as some of the face masks that are depicted in the news. Regardless, the face covering must cover both nose and mouth. Persons who do not have a face covering will be able to participate in a hearing by telephone or videoconference, but they will not be permitted to remain in the courtroom. The face covering is a common courtesy that will be expected of everyone.
There will be an exception to the face covering requirement for any person who has a note from a physician stating that the person cannot wear a face covering due to a medical condition. This may happen where a person has a severe asthma or COPD or any other condition where any obstruction to regular breathing may be a greater risk than possible exposure to the coronavirus. However, a person who is excused from wearing any face covering will need to adhere strictly to the six foot physical distance requirement. Even without a note, a person who feels threatened by the requirement to wear a mask can participate in a hearing by telephone or videoconference.
There may also need to be for accommodation for someone who is deaf and who reads lips. Counsel and court staff are both requested to notify the court promptly if there is someone present for whom accommodation will be necessary.
The policy requiring face coverings is not unprecedented or novel. There are other courts that are requiring face coverings, and many courts are implementing protective measures of one type or another.
Attorneys are expected to communicate to their clients that face coverings are required. I am also requesting that the Assignment Office set forth this requirement on notices that go out as to hearings in my courtroom.
Your cooperation in this matter will be greatly appreciated.
Judge Jerry R. McBride
270 E. Main Street
Batavia, Ohio 45103
NEW PROCEDURES- MARCH 23, 2020 CONCERNING THE CORONAVIRUS
Effective Monday, March 23rd, the following procedures will apply in Judge McBride’s courtroom:
1. As per the policy of the court, all jury trials are canceled through June 29, 2020. A decision will be made on or before June 29 as to whether the cancellation of jury trials will extend past that date.
2. As for each case set for a jury trial between now and June 29, 2020, a hearing will be held on the court’s motion to continue jury trial. A status conference will be held at the same time. Attorneys, other than a prosecuting attorney or public defender assigned to Judge McBride’s courtroom, and parties may only appear by telephone for this hearing. Notice of the time of the hearing in each particular case can be obtained by calling the Assignment Commissioner at 513-732-7108.
3. The following types of criminal matters will be heard only by telephone: scheduling conferences, trial setting conferences, final pretrial conferences, hearings on applications for sealing of record, review hearings, and motions/applications (other than motions for ILC) which do not require an evidentiary hearing. Nobody, other than a prosecuting attorney and public defender assigned to Judge McBride’s courtroom, will be permitted to appear in person in court in order to participate in these matters. Defendants may appear by phone on their cases just the same as their attorneys, and defense counsel are encouraged to share with their clients the information as to how to call in to the court for a hearing. The following matters in criminal cases will require a personal appearance: bond setting/bond review, community control violation, sentencing on community control violation, motion for intervention in lieu of conviction, disposition, plea, and sentencing.
4. All civil matters other than trials and motions which require an evidentiary hearing will be heard only by phone. Nobody will be permitted to appear in court in order to participate in these matters. The following civil matters will require a personal appearance: motions which involve an evidentiary hearing and trials.
5. Matters which require court appearances are being scheduled on a staggered basis, including matters that were previously scheduled. Counsel should call the Assignment Commissioner or check the online docket to see if the time for a hearing has been changed.
6. All persons in the courtroom should maintain social distancing (separation of at least six feet) other than attorney and client and persons who come to court who already live together. This means generally that only five to ten persons will be allowed to be in the seating section at any one time. When the ability to maintain social distancing has been compromised as a result of too many persons being in the courtroom, persons will be asked to leave and will be given times to return and/or hearings will be continued.
7. No person will be allowed in the courtroom who is running a fever or who appears to be ill. Persons will be screened as to temperature as they come through security near the entrance to the courthouse. If a necessary party or attorney to a case is running a fever or appears to be ill, a motion for continuance will be granted and the matter will be rescheduled to another day.
8. Attorneys should bring to the attention of Court Services and court staff the presence of any person who appears to be running a fever or who appears to be ill in order that the person may be removed from the courtroom and can receive medical attention if necessary.
9. As to each case, only persons connected with the case and immediate family members will be permitted in the courtroom. Attorneys are requested to encourage, as much as possible, that only the persons directly connected with the case (defendant and witness in a criminal case/defendant and plaintiff in a civil case/subpoenaed witnesses) appear in court for a hearing.
10. Given the rapid changes which are occurring almost daily with respect to this national emergency, further changes may be necessary. Notice will be provided of any changes as soon as they are decided upon. Additionally, with respect to any hearing at which an in-court appearance is both permitted and required, counsel should check in advance with the Assignment Commissioner (513-732-7108) and/or Judge McBride’s staff (513-732-7108) as to whether any change has been made with regard to the scheduling of the hearing.
I review motions before they are set for hearing. A courtesy copy of a motion is appreciated. Counsel should indicate, when filing a motion, the length of time required for hearing. Most contested motions are scheduled for hearing. Where there is agreement on the motion, an agreed entry can be submitted prior to the date of hearing.
Most motions for summary judgment are scheduled for non-oral hearing and oral argument. Evidence in support of a MSJ must be filed with the motion. Evidence in opposition to a MSJ must be submitted prior to the day of non-oral hearing. Oral argument is held after each side has had an opportunity to submit briefs.
I am generally not actively involved in settlement efforts and prefer to use a mediator instead. In most civil cases other than foreclosures, a mediation conference will be scheduled at the time of the case management conference. Counsel can determine when the mediation conference would be most helpful. However, once scheduled, mediation conferences will generally not be continued.
I am not actively involved in plea-bargains but on occasion will disapprove a plea bargain. It is my policy for the court to not become a party to a plea bargain and I will not plea bargain sentences. I will not indicate what the specific sentence will be on a plea, but will, where appropriate, indicate sentences that have been imposed in similar cases. I set a deadline for negotiated pleas which is the date of the formal pretrial conference. The deadline will not normally be extended.
Counsel are able to participate in the scheduling of a mediation conference and a trial date. Once scheduled, a mediation conference or a trial date will generally not be continued. Where there is no agreement, a motion for continuance will generally be scheduled for hearing. Where there is agreement, an agreed entry of continuance should be submitted with the motion. Counsel should obtain a tentative date through Assignment which should be included in the agreed entry.
However, counsel are expected to be ready for mediation and trial on the dates scheduled, and agreement of counsel does not mean that a continuance will be granted.
All case management conferences, motions, criminal pretrials including formal pretrial conferences, status conferences, pleas, and sentencings are scheduled on my 8:00 a.m. morning docket, with the exception that criminal cases involving defendants who are being held in Jail are scheduled at 8:30 a.m. Trials begin promptly at 10:00 a.m. and go until about 4:45 p.m. each day. Juries are generally permitted to deliberate into the evening if they so choose.
There is a case management conference (in civil cases) and pretrial conference (in criminal cases) held in every case and a formal pretrial conference will be held in every case scheduled for a jury trial. A case management order/pretrial order will be sent out after the case management/pretrial conference. In civil cases, a formal pretrial order will also be sent which contains forms to be used in listing exhibits and witnesses and informing the court of anticipated objections. Settlement, stipulations, admissibility of exhibits, special evidence problems, special jury instructions, need for view, and other matters of a similar nature are covered during the formal pretrial conference.
In civil cases, trial briefs should be filed at the time set forth in the formal pretrial order and should be submitted in compliance with the directions in the formal pretrial order. A concise summary of the issues involved, any discovery difficulties, claimed special damages, and statement of principles of law involved must be included. A final listing of witnesses and exhibits and objections to exhibits, proposed special jury instructions, and proposed interrogatories must be submitted by the deadlines in the order. Exhibit notebooks must be provided as set forth in the order, and there must be enough for the bailiff, judge, and each juror to have copies. Exhibits in the notebooks must be marked and in the same form as they will be used at trial. Witness and exhibit lists and objections to exhibits must be submitted on the court forms provided in the formal pretrial order.
I generally set no limits on the time allocated to voir dire, opening statements, and closing arguments. Questions of jurors must be limited to those necessary to determine if the jurors are fair and impartial. Counsel are not permitted to ask questions which are only designed to ingratiate themselves to jurors. If video depositions are to be used at trial, and if there are objections which need to be ruled on, a written transcript must be provided to the court at least three days prior to trial. No transcript is required if there are no objections or if counsel agree to waive all objections. During the trial, counsel in making an objection may only make a brief reference to the rule number or name of the rule, and discussion related to the objection must then occur at the bench and outside the hearing of the jury.
Every effort is made so that a jury trial is “jury friendly.” An effort will be made to get agreement by counsel on admissibility of exhibits prior to trial so the jurors will be able to view their copies of the exhibits while they are being used at trial. Similarly, in a court trial, all exhibits must be provided to the court prior to their use at trial. Jurors can take notes and ask questions of witnesses in all jury trials. I encourage attorneys to talk to jurors after the trial – this can be some of the most important feedback. Jurors are told that this can be helpful to the attorneys and the parties, but individual jurors are given an opportunity to decline to talk to attorneys.
A copy of the court’s proposed instructions is given to counsel before closing. A copy of the final instructions is given to the jury for its use in deliberations. General jury instructions relating to evidence, credibility, and related matters, and instructions as to the issues in the case are given prior to final arguments. Instructions as to what the jury does once they are in the jury room are given after final arguments.
Time limits are established in a case management order (in civil cases) or pretrial order (in criminal cases) issued after the case management/pretrial conference held early in the case. In civil cases, the standard formal pretrial order provides that opinions of experts must be provided at the time required for disclosure of expert witnesses. In most instances, this means that an opinion letter needs to be obtained
from the expert and be disclosed to the opposing side well in advance of trial (by the date set forth in the case management order).
Counsel should talk to one another to try to resolve any discovery disputes without judicial intervention. However, a trial will not be continued merely because counsel did not request discovery early enough or did not make a timely request for judicial intervention to resolve a discovery dispute. If it is obvious that there is deadlock on a discovery issue, a motion to compel or motion for protective order should be filed so that the dispute can be resolved without any unnecessary delay.
Attorneys should always check in with the bailiff. Attorneys should stand when speaking unless they receive permission to remain seated. When speaking to the court, attorneys normally use the lectern except during trial when counsel may speak from counsel table. Attorneys should state objections succinctly, and if much discussion is required, should ask to approach the bench. Counsel should ask to approach witnesses. Chalkboards and easels can be made available by arrangement in advance. An “Elmo” is available to project written documents and other exhibits onto a large screen. Video depositions are projected onto a large screen in the courtroom.
Pet peeves include: attorneys who are habitually late or fail to call in if they will be late; incivility; attorneys in civil cases who fail to disclose expert opinions within the time ordered; attorneys who fail to timely prepare for trial or check on witness availability; and attorneys who attempt to argue their case to a jury through the making of objections. Attorneys generally do a very good job in my courtroom. My only suggestions would be to listen carefully to the other side, fairly analyze the strengths and weaknesses of your case, be prepared, keep your examination of witnesses focused, limit objections to those that are necessary, and don’t minimize the importance of either opening statement or final argument.
PROCEDURES FOR REVIVOR