Guidelines of Professionalism in Civil Litigation
Eighteenth Judicial District Deposition Guidelines
200 Duties of Presiding Judge of Civil Department
201 Pre-Trial Motions
202 Jury and Non-Jury Trial Calendars and Assignments
203 Assignment of Non-Jury Chapter 60 Cases
204 Pre-Trial Statement in Bench Cases - Chapter 61
Form - Pre-trial Statement
205 Cases Specially Set
207 Pre-Trial Conference
Form - Pre-trial Questionnaire
Form - Pre-trial Conference Order
208 Interviewing Experts
209 Medical Malpractice Screening Panel
210 Civil Post-Trial Motions
211 Voluntary Settlement Conferences Except Medical Malpractice
212 Limitation on Frequency of Garnishments
213 Eminent Domain
The Guidelines that follow emphasize the role of professional standards in civil litigation. They were developed by the Civil Practice Committee of the Wichita Bar Association and endorsed by the Judges of the 18th Judicial District. The Guidelines suggest behaviors which lawyers should strive for, and are not intended as enforceable standards. Lawyers must consult Kansas Supreme Court Rules 161, 225 and 226 for statements of required professional conduct.
As a professional, a lawyer:
1. Recognizes the importance of timely and cost effective disposition of litigation.
2. Acknowledges that communication between lawyers is essential to timely and cost effective disposition of litigation.
3. Confers with other lawyers, prior to the initial discovery conference, to identify required discovery and develop a schedule for depositions and the exchange of expert reports.
4. Proceeds with paper discovery in a timely fashion, e.g., upon filing of a petition or answer.
5. Schedules depositions in a timely manner.
6. Obtains expert witness reports that include the basis for the expert's opinion.
7. Conducts all depositions in a manner that fosters the respect of parties and witnesses for the legal system and the lawyers.
8. Contacts the discovery judge in an effort to resolve disputes, before suspending a deposition pursuant to K.S.A. 1987 Supp. 60-230(d).
9. Evaluates each case and discusses settlement with the opposing lawyer so that meaningful discussions about settlement can occur between court and the lawyers at pre- trial.
10. Does not engage in ex-parte communications (oral or written) with the court concerning the merits of a case, except as provided by statute.
11. Recognizes the responsibility, as an officer of the court, to treat the court, other lawyers, jurors, parties and witnesses with respect.
12. Shows respect for the legal system through appearance, manner and conduct at all times.
13. Refrains from comments, which demean the judge, jurors, parties, witnesses, other lawyers, or the judicial system.
14. Expedites the resolution of litigation through research, articulation of claims, and clarification of issues.
15. Is always mindful of the responsibility to foster respect for the role of the lawyer.
Counsel are expected to cooperate with, and be courteous to, each other and deponents.
Unless contrary to or inconsistent with the Kansas statutes, the rules of this Court or an order of the Court, the parties (and, when appropriate, a non-party witness) may agree in writing to alter, amend, or modify any practice relating to the noticing or taking of a deposition. Any interparty agreement extending the discovery deadline shall not operate to delay trial or any hearing or pretrial conference.
Absent extraordinary circumstances, counsel shall consult in advance with opposing counsel and proposed deponents in an effort to schedule depositions at mutually convenient times and places. Unless leave of court or agreement of counsel is first obtained, at least five (5) calendar days' notice of any deposition shall be given.
(a) Objections. Objections shall be concise and shall not suggest answers to or otherwise coach the deponent. Argumentative interruptions will not be permitted. The only objections that should be asserted are those involving privilege or work product protection or some matter that may be remedied if presented at the time, such as an objection to the form of the question or the responsiveness of the answer. Other objections shall be avoided unless the deposition is being taken for the express purpose of preserving testimony.
(b) Directions not to answer. Counsel shall not direct or request that a deponent not answer a question, unless (1) counsel has objected to the question on the ground that the answer is protected by privilege, qualified privilege, work product immunity, or a limitation on evidence directed by the court; or (2) the direction not to answer is necessary to allow a party or deponent to present a K.S.A. 60-230(d) motion to the Court; or (3) counsel has a good faith belief the subject matter qualifies for a Protective Order and intends to promptly seek such an order. When a witness is instructed not to answer, the witness is nevertheless required to answer questions relevant to the existence, extent, or waiver of the privilege/immunity or other protection, such as the date of a communication, who made it, to whom it has been disclosed, and its general subject matter.
(c) Consultation with attorney. Conferences between deponents and their attorneys during the taking of the deposition are improper except for the purpose of determining whether a privilege or work product immunity should be asserted. Unless prohibited by the court for good cause shown, conferences may be held during recesses and adjournments. Normally, a recess is inappropriate while a question is pending.
DUTIES OF PRESIDING JUDGE OF CIVIL DEPARTMENT
(a) The Presiding Judge of the Civil Department shall supervise the Civil Department and dockets. The Presiding Judge shall hear or assign pretrial motions, including motions for summary judgment and pretrials. The Presiding Judge shall assign jury and non-jury trials to other Judges in the Civil Department, and may assign any other matters.
(b) The Presiding Judge shall call the appearance docket for limited actions filed under Chapter 61, K.S.A., at 1:30 PM on Wednesday of each week. At said docket call, the Court may grant continuances, grant judgment, or assign the cases for trial. Actions for possession of real property shall be assigned for trial at 9:00 A.M., Monday through Thursday of the week following said docket call.
(c) The Presiding Judge shall call the docket for Orders in Aid at Execution at 1:40 P.M. on Friday of each week.
(a) All pre-trial motions shall be heard or assigned by the Presiding Judge of the Civil Department at 9:00 A.M. on Friday of the week after such motion is filed, except as follows:
(1) Discovery Motions: All motions relating to discovery shall be specially set and heard by the Discovery Judge at such time and date as said Judge shall determine;
(2) Summary Judgment Motions - Chapter 60 Cases: All Chapter 60 summary judgment motions shall be heard or assigned by the Presiding Judge of the Civil Department at 1:30 P.M. on the seventh (7th) Thursday after filing, unless otherwise ordered by the Court;
(3) Summary Judgment Motions - Chapter 61 Cases: All Chapter 61 summary judgment motions shall be heard or assigned by the Presiding Judge of the Civil Department at 1:30 P.M. on the sixth (6th) Wednesday after filing, unless otherwise ordered by the Court;
(4) Permanently Assigned Cases: In permanently assigned cases, all motions shall be specially set before the Judge to whom the case is permanently assigned.
(b) All pre-trial motions shall contain a notice of the time and date of hearing, and a certificate of service upon the opposing party or counsel.
(c) The Clerk of the District Court shall establish and maintain summary judgment calendars in accordance with the above time schedules, and shall deliver said calendars to the Presiding Judge of the Civil Department on Friday of the week preceding the date the motions will be heard.
JURY AND NON-JURY TRIAL CALENDARS AND ASSIGNMENTS
(a) The Presiding Judge of the Civil Department shall maintain civil jury trial calendars and civil non-jury trial calendars, which shall contain all civil cases that, have been pretried or assigned for trial.
(b) All civil non-jury cases (excepting domestic cases) will be tried in the order in which they have been filed, insofar as practicable. All civil jury cases will be tried in the order in which they have been pretried, insofar as practicable.
ASSIGNMENT OF NON-JURY CHAPTER 60 CASES
(a) Non-jury Chapter 60 cases shall be set for trial by the discovery judge at the final discovery conference.
(b) However, complex non-jury Chapter 60 cases may be set for pre-trial conference by the discovery judge even though not requested by either party.
(c) The Administrative Judge of the District Court or the Presiding Judge of the Civil Department may direct the Clerk to place a case on the non-jury trial calendar.
PRETRIAL STATEMENT IN BENCH CASES - CHAPTER 61
On the day of trial of any Chapter 61 case or any Chapter 60 case which has not been pre-tried, the attorneys or any party not represented by an attorney shall prepare, sign, and file a "Pretrial Statement" with the Presiding Judge of the Civil Department. The "Pretrial Statement" shall be submitted on a form approved by the Administrative Judge.
IN THE EIGHTEENTH JUDICIAL DISTRICT
DISTRICT COURT, SEDGWICK COUNTY, KANSAS
Case No. _____
The parties and/or counsel after conference state to the Court:
1. The issues of fact and law to be decided by the Court are:
2. As to these issues their contentions are:
Plaintiff's Contentions Defendant's Contentions
A. _________________________ __________________________
B. _________________________ __________________________
C. _________________________ __________________________
3. They have disclosed to each other the identity of the witnesses on the unresolved issues.
4. They agree that the following exhibits may be admitted and marked as exhibits:
5. Settlement has been discussed.
Estimated trial time____________________
Record requested: Yes___ No___
Plaintiff and/or Counsel
Defendant and/or Counsel
CASES SPECIALLY SET
(a) The Administrative Judge or Presiding Judge of the Civil Department shall specially set any case entitled to precedence under the statutes and may specially set any other case which, in the judge's discretion, merits special assignment.
(b) The Administrative Judge or Presiding Judge of the Civil Department may, upon motion of any attorney of record or upon the judge's motion, permanently assign a civil case to a Judge of this Court when such case is of such a nature that one Judge should hear all matters pertaining to such case.
(a) Discovery Conferences. To expedite disposition of litigation, minimize expense and conserve time, the Court in each action shall conduct one or more discovery conferences with counsel. At the first discovery conference, the Court shall require the parties to identify, so far as possible, the issues and names of witnesses. The Court shall then set separate deadlines for listing of any additional witnesses (including expert witnesses), taking of depositions and completion of other discovery and may enter such other orders as are appropriate including the setting of pre-trial and trial dates.
(b) Time for Giving Notice of Deposition. "Reasonable time" within which notice must be given before taking of a deposition under K.S.A. 60-230(a) shall be five days, subject, however, to an order of the Court for cause shown, enlarging or shortening the time. Computation of time shall be as provided in K.S.A. 60-206(a). Attorneys are encouraged to contact opposing counsel for a mutually convenient time for the taking of depositions, before unilaterally setting same.
(c) Local Counsel. Repealed
(d) Requirement of a Writing. All objections to interrogatories, depositions, requests or applications under K.S.A. 60-226 through 60-237, as well as all motions thereto concerning discovery matters, shall be in writing. If time does not permit the filing of a written motion, the Court may, in its discretion, waive this requirement; (e.g., disputes arising during the taking of depositions), in which event attorneys are encouraged to call the discovery judge for a ruling thereon.
(e) Motions for Orders Compelling Discovery. Unless otherwise ordered, the Court will not entertain any such motion unless counsel for the moving party has conferred or has made reasonable effort to confer with opposing counsel concerning the matter in dispute prior to the filing of the motion. Counsel for the moving party shall file a certificate of compliance with this rule with any motion filed under K.S.A. 60-237.
(f) Motions for Protective Orders. The filing of a motion for a protective order pursuant to K.S.A. 60-226 or K.S.A.60-230 shall stay the discovery at which the motion is directed pending order of the court. The filing of a motion to quash or modify a deposition subpoena shall stay the deposition at which the motion is directed. No properly noticed deposition shall be automatically stayed under this rule unless the motion directed at it shall have been filed and served upon counsel or parties by delivering a copy within 11 days after service of the deposition notice, and at least 48 hours prior to the noticed time of the deposition. Pending resolution of any motion, which stays a deposition under this rule, neither the objecting party, witness, nor any attorney shall be required to appear at the deposition to which the motion is directed until the motion has been ruled upon or otherwise resolved.
(a) Pre-Trial Conference. A date for a pre-trial conference shall be set at a discovery conference in cases designated for jury trial. A date for a pre-trial conference may be set at request of counsel or upon the Court's own motion at a discovery conference in cases designated for bench trials.
(b) Pre-Trial Questionnaire. At least one (1) week before the pre-trial conference, counsel for each party shall complete a pre-trial questionnaire and mail a copy thereof to the Presiding Judge of the Civil Department and to all other counsel. The originals of the pre-trial questionnaire shall be filed with the Clerk of the District Court only if the parties fail to file an agreed Pre-Trial Order before the holding of a formal conference. A suggested form for the pre-trial questionnaire is attached to this rule. Its use is recommended to the bar.
(c) Preparation of Pre-Trial Conference Order. All pre-trial orders shall be prepared by the attorney designated by the judge presiding at the pre-trial conference and shall be filed within the time specified by the Court. A suggested form for the pre-trial order is attached to this rule. Its use is recommended to the bar.
(d) Full Use of Discovery Encouraged. Attorneys are encouraged to make full use of all appropriate discovery procedures as provided in K.S.A. 60-226 through 60-237.
(e) Presence of Trial Counsel Required. The attorney who will actually conduct the trial shall appear at and conduct the pre-trial conference. If good cause is shown why the actual trial attorney cannot appear, the Court may proceed if the appearing attorneys are familiar with the matter so that a meaningful pre-trial may be conducted. Local counsel shall also be present.
(f) Procedure. In conducting the pre-trial conference, the Court will follow Kansas Supreme Court Rule No. 140.
(g) Agreed-To Pre-Trial Order Docket. Any case in which it is likely the attorneys can agree upon a pre-trial order, the case shall be set on the court's agreed-to pre-trial docket before the Presiding Judge of the Civil Department on any Tuesday or Thursday at 1:30 P.M., at which time the attorneys for each side shall appear to obtain the Court's review and approval of said order and a trial setting.
(h) Failure to Present Agreed-To Pre-Trial Order. In the event counsel fails to present an agreed-to pre-trial order at the designated time, counsel shall be prepared to conduct a formal pre-trial conference forthwith, or as soon thereafter as the Court shall determine.
(i) Medical Malpractice Settlement Conference. In medical malpractice cases, as part of the pre-trial conference or as part of the agreed-to pre-trial order, the court shall designate the person before whom said conference will be conducted and shall provide for the scheduling of said conference not less than forty-five (45) days before trial.
IN THE EIGHTEENTH JUDICIAL
DISTRICT COURT, SEDGWICK COUNTY, KANSAS
Plaintiff's Counsel Defendant's Counsel
Instruction: This questionnaire must be completed by each party and copies mailed to the Presiding Judge and all other counsel at least one week prior to pretrial conference. All questions must be answered or indicated as not applicable. All answers must be typed. If the space provided is not sufficient for your answers, you may type your own questionnaire and answers in accordance with this format.
1. The name of the party you represent:
2. Contentions and theories of recovery:
a. Theory of your claim or defense and supporting factual contentions (including, if applicable, grounds of negligence or comparative negligence against parties and non-parties, and affirmative defenses):
b. List and itemize total of damages claimed:
3. Request for amendments to your pleadings:
4. Request for admissions and stipulations:
a. The Court has jurisdiction over the parties and the subject matter.
b. Venue is proper in ____________ County, Kansas.
*5. List names and addresses of all witnesses you intend to call at trial: (Identify as an expert any witness you intend to call as an expert.)
*6. List all exhibits you intend to offer at trial and identify any which have not already been shown to opposing counsel:
*General classifications of witnesses and exhibits are not acceptable.
a. List motions you have pending:
b. List motions you intend to file prior to trial and date by which you propose to file each motion:
8. Trial Assignment:
a. Is this trial to the Court or to a jury or to a master to be appointed by the Court?
b. Will a jury of 6 members be accepted?
c. What is the estimated time for trial?
d. Should case receive priority setting and if so, why? (If due to out-of-town witnesses, please specify.) (Counsel are required to bring scheduling calendars to the pretrial conference.)
9. Guardian ad litem:
Does any party require a guardian ad litem?
10. Expert or Cumulative Witness Limitations:
List request for limitation of witnesses:
11. Questions of fact:
12. Questions of law:
13. Unusual questions of evidence:
14. Anticipated problems relative to jury instructions:
a. What are the prospects of settlement?
b. Would a settlement conference be of assistance?
16. Do you plan to file trial briefs? If so, set forth proposed time schedule for filing.
17. State any procedural problems or recommendations:
18. Discovery.(It is presumed that all discovery is completed at the time of pretrial.)
a. If further discovery is requested, specify what further discovery is necessary, and state why:
b. State when it would be completed and request leave under Supreme Court Rule 136 to continue specified limited discovery:
CERTIFICATE OF SERVICE
On this ______ day of _________________, 19___, a true and correct copy of this document was mailed, postage prepaid, to:
EIGHTEENTH JUDICIAL DISTRICT
DISTRICT COURT, SEDGWICK COUNTY, KANSAS
Plaintiff's Counsel Defendant's Counsel
PRETRIAL CONFERENCE ORDER
This Pretrial Conference order is entered by Judge
_____________________ on the ____ day of ____________________, 19_____. Counsel present
appearing for the plaintiff; and_____________________________
appearing for the defendant.
WHEREUPON, the Court conducted a pretrial hearing under Supreme Court Rule No. 140: (If an agreed upon order so states.)
1. PLAINTIFF'S CONTENTION AND THEORIES OF RECOVERY
The plaintiff's contentions and theories of defense are as follows:
2. DEFENDANT'S CONTENTIONS AND THEORIES OF DEFENSE
The defendant's contentions and theories of defense are as follows:
3. AMENDMENTS TO THE PLEADINGS
The Court allowed the following amendments to the pleadings:
4. ADMISSIONS AND STIPULATIONS
The parties agree to be bound by the following:
a. The Court has jurisdiction over the parties and of the subject matter.
b. Venue is proper in ______________ County, Kansas.
5. WITNESSES (If you intend to call any witness as an expert, so identify them.)
c. Identified by both parties:
c. Identified by both parties:
The Court made the following rulings on motions and the filing of motions:
a. Summary judgement motions will be filed within 20 days of the date of this order.
8. TRIAL OF THE ACTION
Trial of this case shall be to a jury of twelve (12) persons and a majority verdict of 10 will be required. (Modify if six-member jury is acceptable.) Estimated time of trial is _____ days and will commence on _________________.
9. GUARDIAN AD LITEM
No appointment of a guardian ad litem is necessary.
10. EXPERT OR CUMULATIVE WITNESS LIMITATIONS
The Court made the following limitations on expert and cumulative witnesses:
11. ISSUES OF FACT
The issues of fact to be determined in this action are as follows:
12. ISSUES OF LAW
a. The following issues of law are identified:
b. Rulings on issues of law:
13. QUESTIONS OF EVIDENCE OR PROCEDURE
a. The following questions of evidence or procedure are identified:
b. Rulings on evidence or procedural questions:
14. JURY INSTRUCTIONS
a. The following jury instruction problems are identified:
b. Ruling on jury instruction:
(1) Proposed jury instructions will be submitted _____ days before trial.
15. TRIAL BRIEFS
Trial briefs, if any must be submitted ______ days before trial.
In addition to the foregoing, the Court made these additional orders:
a. All discovery is terminated except:
(1) Uncompleted discovery which is specifically allowed as follows:
*(2) Requests for Admission
*(It is suggested that Requests for Admission not be restricted following pretrial conference because they limit issues and evidentiary matters at trial.)
b. This Pretrial Order supersedes all pleadings and shall control the trial of this matter.
c. Witnesses and exhibits listed by one party may be called by any other party. All exhibits will be marked and exchanged by the parties 7 days before trial.
d. The trial of this case shall be limited to the issues, witnesses and exhibits listed; and no deviation therefrom will be permitted except for rebuttal or impeachment purposes or by special order of the Court to prevent manifest injustice.
e. The reporter's notes, or the transcript if prepared, of this proceeding are made a part of his pretrial order as fully as if set out herein.
f. The Pretrial Order shall be prepared by counsel for the ____________________ within ______ days and present to counsel for _______________________ who shall state objections in writing, if any, and forward objections and the Pretrial Order to the Court within 10 days.
Attorney for Plaintiff
Attorney for Defendant
(a) Physician: Lawyers have a right to interview a treating physician once the physician-patient privilege is waived by the filing of a lawsuit, provided the physician is supplied with a written consent waiving the privilege by the person holding the privilege or by order of the Court. A treating physician may be interviewed outside the presence of parties or other counsel provided the treating physician consents to the interview.
(b) Experts other than treating physicians: Lawyers may not interview any opposing expert witness who has been retained or specially employed by another party in anticipation of litigation or preparation for trial, without either consent of counsel or order of the Court.
MEDICAL MALPRACTICE SCREENING PANEL
(a) Any party filing a request for medical malpractice screening panel shall file with the request:
(1) A short statement explaining the basic medical failures alleged and the nature of the alleged injury. (That defendant was negligent or deviated from care generally is not sufficient. There must be some identification of the claimed injury and some brief statement of the suspected departures from standard practice.) This statement shall not be binding or limit the plaintiff from other allegations which become known thereafter.
(2) An Order signed by counsel and ready for the Court's signature authorizing the release of medical records and X-rays, etc. to counsel for all named defendants. (The names of counsel need not be specified, as they will be unknown at that time.)
(3) A list of all health care providers who have rendered treatment to the plaintiff within the preceding five (5) years, including all hospitals where plaintiff received any treatment. To the extent possible, full names and addresses shall be provided.
(4) The above list shall include the plaintiff's date of birth.
(b) Along with the Notice convening the screening panel, the Court shall provide to the parties copies of all additional documents required to be filed by these rules, including a certified copy of the Order for production of medical records, and a Notice of a status conference.
(c) The Court shall hold a status conference in all screening panel cases. Counsel for the parties and the Chairperson shall appear and a schedule shall be established for the submission of records, contentions and the preliminary conference of the panel.
(d) Except by agreement of all parties, no affidavits from the parties, nor any "expert opinions," nor depositions taken in the case shall be submitted.
(e) The Chairperson shall provide a file stamped copy of the opinion of the panel to counsel for all parties and the Commissioner of Insurance as administrator of the Health Care Stabilization Fund.
CIVIL POST-TRIAL MOTIONS
All post-trial motions in civil cases will be heard at a time and date set by the Judge who tried the case.
VOLUNTARY SETTLEMENT CONFERENCES
EXCEPT MEDICAL MALPRACTICE
At any time upon request by a litigant in any civil case, the Administrative Judge may assign such civil case to an attorney or panel of attorneys, for the purpose of undertaking a settlement conference with the litigants and counsel. The time and place for such a settlement conference shall be scheduled by the Judge, at the convenience of the parties and the person or persons conducting the settlement conference. Participation in a settlement conference is voluntary.
The purpose of the settlement conference is to permit an informal discussion among the attorneys, the parties and the person or persons conducting the conference, of every aspect of the lawsuit bearing on its settlement value, thus permitting the person or persons conducting the settlement conference to privately express his view concerning the actual dollar settlement value or other reasonable disposition of the case.
In advance of the hearing, the parties are encouraged to submit to the person or persons conducting the settlement conference a settlement conference statement, which details the factual and legal issues and the relief requested. The statement may include such documentation as expert witness reports. The statement shall be shared with opposing counsel, but is not to be filed as a part of the record in the case. Use of exhibits and demonstrative evidence at the conference is also authorized.
Neither the settlement conference statements nor communications during the settlement conference, with the person or persons conducting the settlement conference, can be used by any party, in the trial of the case. The person conducting the settlement conference will not communicate to the trial judge the confidences of the conference, except to advise as to whether or not the case has been settled.
The costs of a settlement conference, including reasonable fees, shall be assessed to the litigants, as determined by the Administrative Judge.
The settlement conference shall be attended by the attorney in charge of the case and by the parties or by persons who are authorized to make settlement of a case.
LIMITATION ON FREQUENCY OF GARNISHMENTS
In all eminent domain proceedings the attorney for the condemnor shall, within ten days following payment of the appraisers award, file a Motion for Distribution of the Appraisers Award. Prior to filing such motion, condemnors attorney shall examine the title evidence based upon which the parties were named. Relying thereon, and on information made known to condemnor during the proceedings, said attorney shall propose a plan of disbursement establishing the priorities, if any, of the parties entitled to receive the compensation. Said attorney shall exercise reasonable diligence to ascertain the addresses of parties at interest and shall give notice of said motion to all parties or their respective counsel not less than five days prior to the hearing of said motion.
In every case in which the fee title to an entire parcel is acquired or in which a permanent easement to an entire parcel is acquired, the said attorney shall serve a copy of such motion on the County Counselor so that such counselor may appear on behalf of the County Treasurer to protect the interest of the county as provided by K.S.A. 79-1804.
With respect to any tract or parcel in which a landowners attorney has substantially complied herewith, the condemnors attorney need not do so.
Under no circumstances will the clerk disburse funds in any eminent domain proceeding absent the order of the Court.
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