United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

U.S. Customs House 

721 19th Street, Room 407

Denver, CO 80202-2517

Phone: (303) 844-3409 Fax: (303) 844-3759

JUDGE BRIAN A. DUNCAN

The following are examples of standard initial orders and practice guides issued by Judge 

Duncan in most cases. The first example illustrates Judge Duncan’s standard practices in 

Conventional Proceedings. The second example illustrates Judge Duncan’s standard 

practices in Simplified Proceedings. The parties should always comply with specific orders 

issued in individual cases, as the circumstances of a case may require deviation from these 

standard procedures. 

I. Conventional Proceedings:

ORDER TO CONFER AND SUBMIT PROPOSED PRE-TRIAL SCHEDULE

The parties are ORDERED to confer, either in person or by telephone, within thirty (30) 

days of this Order, regarding:

1. Settlement of this case. Specific offers and counter-offers are encouraged; and

2. A proposed pre-trial schedule. The parties are ORDERED to jointly file, within fortyfive (45) days of this Order, a Joint Proposed Pre-Trial Schedule containing the following:

a. Proposed trial date and location (the Court prefers proposed dates approximately

six months from the date of this Order for routine cases);

b. Anticipated number of days required for trial;

c. Proposed deadline for completion of all discovery (the Court prefers thirty days

prior to trial);
d. Proposed deadline to file motions to amend complaint and/or answer (the Court

prefers sixty days prior to trial);

e. A statement of whether the parties anticipate expert testimony in this case, and if

so, the proposed deadline by which the parties shall identify their respective

expert witnesses and exchange written expert reports (the Court prefers

simultaneous exchange of expert information sixty days prior to trial);

f. Proposed deadline to file dispositive, or partially dispositive, motions (the Court

prefers forty-five days prior to trial);

g. Proposed deadline to file Pre-Trial Statements (the Court prefers ten calendar

days prior to trial);

h. Any other proposed deadlines the parties believe are necessary for the efficient

management, preparation, and trial of this case.

3. If the parties are unable to agree on dates or deadlines for their Joint Proposed PreTrial Schedule, the parties shall include their respective positions on each issue, including an 

explanation of why agreement could not be reached.

PRACTICE GUIDE FOR APPEARANCES BEFORE JUDGE DUNCAN

Initial procedures:

Upon assignment of a case, Judge Duncan requires the parties to promptly confer regarding 

settlement, a proposed trial date, and various pre-trial deadlines. After considering the parties’ 

proposals, Judge Duncan will issue an order establishing a trial date and pre-trial deadlines.
Extensions of Time and Continuances:

Requests for extensions of time and/or continuances must be made by written motion and shall 

include: (1) the specific grounds for the request, (2) the date on which the parties conferred 

regarding the request, (3) a statement of whether the request is opposed or unopposed, and (4) a 

new proposed deadline or trial date. Extensions of discovery deadlines, if agreed upon by the 

parties in writing, do not require Court approval so long as they do not interfere with any party’s 

ability to comply with other established Court deadlines. 

Communication with the Court:

All pre-trial motions and other requests to the Court shall be in writing and filed pursuant to the 

Commission’s procedural rules. Ex-parte communication with the Court, or Court staff, 

concerning the substantive issues involved in this case is not allowed. Court staff will not 

provide legal advice or give any indication of anticipated rulings by the Court. If you have a 

question about a minor, routine, non-substantive issue, contact Judge Duncan’s Legal 

Assistant by telephone for assistance (303-844-3409).

Applicable rules:

All parties and party representatives in a conventional case must comply with:

1. Commission Rules of Procedure https://www.oshrc.gov/rules/ ;

2. Federal Rules of Civil Procedure (see Commission Rule 2(b));

3. Federal Rules of Evidence (see Commission Rule 71); and

4. the OSHRC E-Filing Instructions and User Guide

https://www.oshrc.gov/publications/instructions-for-electronic-filing/ ; and

5. The provisions of this Practice Guide.
All attorneys appearing before the Court must also comply with applicable ethics rules and codes 

of professional responsibility.

Electronic filing:

Effective October 15, 2020, electronic filing of case-related documents in the Commission’s EFile System is mandatory for all parties, representatives, and intervenors. If you are not 

registered as an electronic filer on this specific case, you must register at www.oshrc.gov [click 

on the blue box in the upper right corner of the home page entitled “OSHRC E-Filing System 

(Register as an e-filer and file documents)”]. Additional information concerning e-filing 

procedures can be obtained by reviewing OSHRC Rule 8(c), as well as the OSHRC E-Filing 

Instructions and User Guide, both accessible at www.oshrc.gov.

Notice of Settlement:

If the parties successfully negotiate a full resolution of their dispute, the Court must be promptly 

notified in writing of the same. A simple, concise, written notice stating that full settlement has 

been reached is sufficient. The settlement report must be signed by at least one party 

representative and served on all parties. The Court will then issue an order setting a 

subsequent deadline for the filing of a more detailed Joint Notification of Settlement, pursuant 

to OSHRC Rule 100. Partial settlement agreements are encouraged, although they will 

not affect the scheduled trial date. Telephonic notification of settlement alone is not 

sufficient to cancel a scheduled trial date. 

Courtroom procedures and demeanor:

Professional courtesy and civility are expected during all court appearances, as well as during 

pre-trial interaction among the parties. Respect for the Court, respect for one another, respect for 

witnesses, and respect for the judicial process are paramount. All trial proceedings and other 

scheduled hearings will begin promptly at their scheduled times. There will be no visual or 
verbal gestures of approval or disapproval of any witness testimony, any comments by counsel, 

or any rulings by the Court. All mobile phones must be either turned off or placed in vibrate 

mode while in the courtroom. 

Trial Exhibits:

Exhibits shall be sequentially numbered with a label placed in the lower right corner of each 

exhibit (and on each page thereafter, unless subsequent pages have clearly identified page 

numbers which can be referenced on the record). Each exhibit shall be numbered C-1, C-2, C-3, 

etc. for Complainant’s exhibits, and R-1, R-2, R-3, etc. for Respondent’s exhibits. If other 

parties have been recognized in the case, they should follow a similar procedure (e.g. U-1, U-2, 

U-3 for exhibits offered by union representatives participating in the proceeding). The proposed,

pre-numbered exhibits must be securely placed in a three-ring binder, along with an index page 

located in the front of the binder. Each party shall create a minimum of four (4) copies of their 

respective exhibit notebooks: (1) one copy for Judge Duncan (to be provided at trial), (2) one 

copy for the witness stand (which shall become the official Court copy), (3) one copy for each 

opposing party (which should be produced before trial pursuant to the Court’s deadlines), and (4) 

a copy for the party offering the exhibits. If the parties intend to offer identical exhibits, they 

should confer and agree on one copy of the exhibit, rather than including duplicates in each 

of their respective exhibit lists/notebooks. In addition, each copy of the exhibits should also 

include a CD or flash drive containing the scanned exhibits in .pdf format (for documents), 

and .jpeg format (for photographs).

Post-Trial Procedures:

In conventional cases, Judge Duncan typically requires the parties to file a post-trial brief thirty 

days after the trial transcript is received from the court reporter. Post-trial briefs should contain 
each party’s proposed factual findings, a discussion of whether the prima facie elements required 

to prove each alleged violation were established, a discussion of whether the prima facie

elements required to prove each alleged affirmative defense were established, as well as a 

discussion of any other pertinent issues the parties believe the Court should address in its 

decision. 

All parties and party representatives must comply literally with the provisions of this 

Order and Practice Guide. Failure to comply may result in sanctions pursuant to 

Commission Rule 101.

Date:

Denver, CO

Judge Brian A. Duncan

U.S. Occupational Safety and Health Review Commission

II. Simplified Proceedings

ORDER TO CONFER AND APPEAR FOR SIMPLIFIED PROCEEDING 

CONFERENCE CALL

The parties are ORDERED to confer, either in person or by telephone, within thirty (30) 

days of the date of this Order, regarding:

1. Settlement of this case. Specific offers and counter-offers are encouraged; and

2. Commission Rule 207(b) issues.

The parties are further ORDERED to appear by telephone for a conference call with the

Court on DATE at TIME a.m. (Mountain). All parties shall dial-in to the conferencing 

service at 1-800-501-9384, and enter Conference ID Number *******. The parties should be 

prepared to discuss the following:
a. Proposed trial date and location (the Court prefers proposed dates approximately

four to six months from the date of this Order);

b. Factual and/or legal stipulations;

c. Affirmative defenses asserted by Respondent. Only those defenses identified

during the conference call will be considered at trial, absent extraordinary

circumstances;

d. Any other issues the parties believe the Court should address for efficient

management, preparation, and trial of this case.

The parties are also reminded of their disclosure obligations in Commission Rules 206(a) 

and (b).

PRACTICE GUIDE FOR APPEARANCES BEFORE JUDGE DUNCAN 

IN SIMPLIFIED PROCEEDING CASES

Initial procedures:

Upon assignment of a case, Judge Duncan requires the parties to promptly confer regarding

settlement, a proposed trial date and location, stipulations, and to identify affirmative defenses. 

Extensions of Time and Continuances:

Requests for extensions of time and/or continuances must be made by written motion and shall 

include: (1) the specific grounds for the request, (2) the date on which the parties conferred 

regarding the request, (3) a statement of whether the request is opposed or unopposed, and (4) a 

proposed new deadline or trial date. 

Communication with the Court:

All pre-trial motions and other requests to the Court shall be in writing and filed pursuant to the 

Commission’s procedural rules. Ex-parte communication with the Court, or Court staff, 
concerning the substantive issues involved in the case is not allowed. Court staff will not 

provide legal advice or give any indication of anticipated rulings by the Court. If you have a 

question about a minor, routine, non-substantive issue, contact Judge Duncan’s Legal 

Assistant by telephone for assistance (303-844-3409).

Applicable rules:

All parties and party representatives in a simplified proceeding case must comply with:

1. Commission Rules of Procedure https://www.oshrc.gov/rules

(specifically Commission Rules 200 through 211 in Subpart M);

2. the OSHRC E-Filing Instructions and User Guide

https://www.oshrc.gov/publications/instructions-for-electronic-filing; and

3. The provisions of this Practice Guide.

All attorneys appearing before the Court must also comply with applicable ethics rules and 

codes of professional responsibility.

Electronic filing:

Effective October 15, 2020, electronic filing of case-related documents in the Commission’s EFile System is mandatory for all parties, representatives, and intervenors. If you are not 

registered as an electronic filer on this specific case, you must register at www.oshrc.gov [click 

on the blue box in the upper right corner of the home page entitled “OSHRC E-Filing System 

(Register as an e-filer and file documents)”]. Additional information concerning e-filing 

procedures can be obtained by reviewing OSHRC Rule 8(c), as well as the OSHRC E-Filing 

Instructions and User Guide, both accessible at www.oshrc.gov.

Notice of Settlement:

If the parties successfully negotiate a full resolution of their dispute, the Court must be promptly 

notified in writing of the same. A simple, concise, written notice stating that full settlement has 
been reached is sufficient. The settlement report must be signed by at least one party 

representative and served on all parties. The Court will then issue an order setting a subsequent 

deadline for the filing of a more detailed Joint Notification of Settlement, pursuant to OSHRC 

Rule 100. Partial settlement agreements are encouraged, although they will not affect the 

scheduled trial date. Telephonic notification of settlement alone is not sufficient to cancel a 

scheduled trial date. 

Courtroom procedures and demeanor:

Professional courtesy and civility are expected during all court appearances, as well as during 

pre-trial interaction among the parties. Respect for the Court, respect for one another, respect for 

witnesses, and respect for the judicial process are paramount. All trial proceedings and other 

hearings will begin promptly at their scheduled times. There will be no visual or verbal gestures 

of approval or disapproval of any witness testimony, any comments by counsel, or any rulings by 

the Court. All mobile phones must be either turned off or placed in vibrate mode while in the 

courtroom. 

Trial Exhibits:

Exhibits shall be sequentially numbered with a label placed in the lower right corner of each 

exhibit (and on each page thereafter, unless subsequent pages have clearly identified page 

numbers which can be referenced on the record). Each exhibit shall be numbered C-1, C-2, C-3, 

etc. for Complainant’s exhibits, and R-1, R-2, R-3, etc. for Respondent’s exhibits. If other 

parties have been recognized in the case, they should follow a similar procedure (e.g. U-1, U-2,

U-3 for exhibits offered by union representatives participating in the proceeding). The proposed,

pre-numbered exhibits must be securely placed in a three-ring binder, along with an index page 

located in the front of the binder. Each party shall create a minimum of four (4) copies of their 
respective exhibit notebooks: (1) one copy for Judge Duncan (to be provided at trial), (2) one 

copy for the witness stand (which shall become the official Court copy), (3) one copy for each 

opposing party (which should be produced before trial pursuant to the Court’s deadlines), and (4) 

a copy for the party offering the exhibits. If the parties intend to offer identical exhibits, they 

should confer and agree on one copy of the exhibit, rather than including duplicates in each 

of their respective exhibit lists/notebooks. In addition, each copy of the exhibits should also 

include a CD or flash drive containing the scanned exhibits in .pdf format (for documents), 

and .jpeg format (for photographs).

Post-Trial Procedures:

In simplified proceedings, the parties will be provided an opportunity to either make closing 

argument on the record at the conclusion of trial or file a post-trial brief. If a party elects to file a 

brief, it will typically be due thirty days after the trial transcript is received from the court 

reporter. Post-trial briefs must contain each party’s proposed factual findings, a discussion of 

whether the prima facie elements required to prove each alleged violation were established, a 

discussion of whether the prima facie elements required to prove each alleged affirmative 

defense were established, as well as a discussion of any other pertinent issues the parties believe 

the Court should address in its decision. 

All parties and party representatives must comply literally with the provisions of this 

Order and Practice Guide. Failure to comply may result in sanctions pursuant to 

Commission Rule 101.

SO ORDERED.

Date:

Denver, CO

Judge Brian A. Duncan

U.S. Occupational Safety and Health Review Commission