IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TIMOTHY DAVIS, : 

 : Case No. 2:17-cv-823 

 Plaintiff, : 

 : CHIEF JUDGE ALGENON L. MARBLEY 

 v. : 

 : Magistrate Judge Chelsey M. Vascura 

CITY OF COLUMBUS, OHIO, et al., : 

 : 

 Defendants. : 

ORDER SETTING TRIAL DATE 

AND SETTLEMENT CONFERENCE

 This case is set for trial on Monday, February 13, 2023 at 9:00 a.m. In preparation for 

trial the Court has set the following schedule to which the parties are to adhere. The Court has 

included a statement of pretrial and trial procedures which the parties are to follow. 

Summary: 

December 12, 2022 Confidential assessment letter submitted to the Court for settlement 

conference. 

December 19, 2022 Settlement conference. 

January 6, 2023 Motions in limine, pretrial motions, joint jury instructions and 

supplemental jury instructions, designation of deposition portions, 

witness statements, stipulations, and exhibit lists. 

January 20, 2023 Memoranda contra pretrial motions or motions in limine, 

objections to supplemental jury instructions, objections to 

deposition designations, and final pretrial order. 

February 3, 2023 Final pretrial conference, submission of proposed areas of 

questions for voir dire and trial briefs. 

February 13, 2023 Trial: voir dire, opening statements and presentation of evidence. 

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 1 of 15 PAGEID #: 7206
2 

I. PRETRIAL PROCEDURE

Trial Date 

This matter is set for a final pretrial conference on Friday, February 3, 2023 at 2:30 

p.m. Trial shall begin on Monday, February 13, 2023 at 9:00 a.m. The Court will follow a 

four day week trial schedule, conducting the trial of this case from Monday through Thursday of 

each week until completion of the trial, and reserving Fridays for other matters. 

 The Court will not continue the trial date except upon written motion supported by an 

affidavit demonstrating exceptional circumstances, made immediately upon the party's or 

counsel's receipt of notice of the existence of the exceptional circumstances. 

 The Court uses a trailing docket, setting three to five civil cases to begin on the same day. 

Cases are tried in the order they were filed. If a case set for the same day goes to trial, then the 

parties and counsel in the next case shall remain prepared to go to trial on a standby basis for a 

period of two weeks unless the Court orders otherwise. 

 Under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., and Fed. R. Crim. P. 50(a), the 

Court will give preference to any criminal matters it has set to take place the same time as the 

trial in this case. Fed. R. Civ. P. 40. 

 Counsel may call the Courtroom Deputy, Diane Stash, at (614) 719-3265, to obtain 

information about whether other cases will go to trial before this case. 

Settlement Conference 

This case is set for a settlement conference on December 19, 2022 at 10:00 a.m., under 

Fed. R. Civ. P. 16(a)(5) and 16(c)(2)(I), before The Honorable Algenon L. Marbley at the United 

States District Court, 85 Marconi Boulevard, Room 319, Columbus, Ohio 43215. 

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 2 of 15 PAGEID #: 7207
3 

 Counsel and the parties shall adhere to the following with respect to the settlement 

conference: 

 (1) The trial attorney for each party must attend the conference. 

 (2) The parties or principals with settlement authority shall be present. 28 U.S.C. 

§ 473 (b)(5); Fed. R. Civ. P. 16(c)(2)(I). Upon written motion and for good cause shown, the 

parties or principals with settlement authority may satisfy the presence requirement by being 

available by telephone. Such motion must be made at least one (1) week in advance of the 

settlement conference. Failure to appear or failure to obtain the Court’s permission to appear by 

telephone shall result in sanctions against the offending party. 

 (3) Lack of discovery or settlement authority will not excuse active participation in 

the conference. 

 (4) No later than fourteen (14) days before the conference, each plaintiff must 

submit to counsel for all opposing parties a fully documented, written settlement demand; and 

 (5) No later than ten (10) days before the conference, each opposing party must 

respond, in writing, to each settlement demand fully documenting that party’s position. 

 (6) On December 12, 2022, each party shall submit directly and only to the Court’s 

Chambers a letter, not to exceed three pages, (a) explaining the party’s theory of the case, (b) 

indicating its position on settlement (in monetary terms, if applicable), and (c) setting forth all 

conditions necessary to achieve settlement (including non-monetary terms). 

 (7) Before the conference counsel shall discuss with their clients whether this case 

would be appropriate for some other form of alternative dispute resolution. The Court 

encourages the parties to consider seriously this option, which has consistently resulted in 

significant savings over the cost of a full trial. 

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 3 of 15 PAGEID #: 7208
4 

 Any questions regarding the settlement conference should be addressed to the Court’s 

Law Clerk, Armani Madison at (614) 719-3262. 

Expert Witnesses 

The parties shall comply fully with all of the requirements of Fed. R. Civ. P. 26(a)(2), 

including the required disclosures, at least ninety (90) days before the trial unless an earlier 

date has been set by a scheduling order issued by the Magistrate Judge.

Statement of Witnesses 

Pursuant to Fed. R. Civ. P. 26(a)(3)(A)(i), on January 6, 2023, the parties shall submit to 

the Court, and serve on opposing counsel, the names, addresses and occupations of all witnesses 

they intend to call at trial, with a brief summary of the witness’ testimony (two to three 

sentences), the purpose of that testimony, and the major issue about which the witness will 

testify. Failure to list a witness, except upon a showing of good cause, will preclude the use of 

that witness at trial. 

 The witness lists shall comport with all of the requirements of Rule 26(a)(3)(A). 

 Designation of Deposition Portions 

Pursuant to Fed. R. Civ. P. 26(a)(3)(A)(ii), on January 6, 2023 the parties shall submit 

to the Court, and serve on opposing counsel, the designations of any portions of depositions they 

intend to offer as evidence at trial.1 Failure to make a designation, except upon a showing of 

good cause, will preclude the use of the undesignated portion of a deposition at trial. 

1

Do not designate portions to be used for impeachment on cross-examination. 

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 4 of 15 PAGEID #: 7209
5 

 The designation of deposition portions shall comport with all of the requirements of 

Fed. R. Civ. P. 26(a)(3)(A). 

Exhibits

 Counsel will assemble and mark all exhibits and deliver them to the Courtroom Deputy 

prior to the commencement of trial. All exhibits will bear the case number. Plaintiff’s exhibits 

will bear the letter prefix P followed by Arabic numerals, and Defendant’s exhibits will bear the 

prefix D followed by Arabic numerals. 

 Pursuant to Fed. R. Civ. P. 26(a)(3)(A)(iii), on January 6, 2023, each party shall 

exchange and file a list containing a brief description of each item of documentary or physical 

proof the party intends to offer in evidence as an exhibit at trial. 

 Counsel should keep a list of all exhibits and should supply the Court, Courtroom 

Deputy, and opposing counsel with a copy of the same. 

 Counsel will not approach the witness to tender an exhibit. Each exhibit will be placed 

before the witness by the Courtroom Deputy. 

 In formulating a question to a witness dealing with an exhibit, counsel shall specify the 

exhibit designation so that the record will be clear. 

 Each counsel is responsible for any exhibits secured from the Courtroom Deputy. At the 

end of each trial session, all exhibits shall be returned to the Courtroom Deputy. 

 Counsel shall provide an exhibit list to the Court and opposing counsel prior to the 

commencement of trial as set forth in the Court’s scheduling order. 

 The parties shall use three-ring tabbed notebooks for their exhibits which will be 

submitted two (2) days before the trial. At trial, the parties shall provide the witness through the 

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 5 of 15 PAGEID #: 7210
6 

Courtroom Deputy the relevant volume(s) when the witness takes the stand. The parties shall 

provide one (1) copy of their tabbed exhibit notebook(s) to opposing counsel, and two (2) copies 

to the Court–one for the Judge, and one for the Courtroom Deputy (for use at the witness stand). 

 Exhibits which are produced for the first time during trial, as in the case of exhibits used 

for impeachment, shall be tendered to the Courtroom deputy for marking and then displayed to 

opposing counsel.

Stipulations 

Counsel for the parties shall confer and reduce to writing all stipulations. Fed. R. Civ. P. 

16(c)(1). The parties shall file any stipulations on January 6, 2023. 

 

Pretrial Motions 

Any pretrial motions or motions in limine shall be filed on January 6, 2023. A party’s 

motions in limine and memoranda in support shall not exceed a total of fifteen (15) pages in 

length. The memoranda contra any motions in limine shall be filed on January 20, 2023. The 

memoranda contra shall not exceed a total of fifteen (15) pages in length. The Court will not 

accept any reply memoranda. 

Jury Instructions 

The Court will prepare preliminary and general jury instructions. The parties shall 

concentrate their efforts on any unusual or case-specific instruction areas. 

 The parties shall submit jointly one set of agreed upon proposed case-specific jury 

instructions on January 6, 2023. If, after a concerted good faith effort, the parties are unable to 

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 6 of 15 PAGEID #: 7211
7 

agree upon one complete set of proposed case-specific instructions, then each party shall also 

submit on January 6, 2023 a supplemental set of case-specific instructions upon which they are 

unable to agree. Supplemental case-specific instructions shall include citations to binding 

authority. Number and label each instruction. The parties shall file any objections to the 

opposing party’s supplemental set of instructions on January 20, 2023. 

 All instructions shall be concise, understandable, and neutral. For general jury 

instructions, the Court strongly prefers that the parties use the latest edition of Hon. Edward J. 

Devitt, Hon. Charles B. Blackmar, Michael A. Wolff, and Kevin F. O’Malley, Federal Jury 

Practice and Instructions (West). For instructions concerning Ohio law, the Court strongly 

prefers that the parties use the latest edition of Ohio Jury Instructions (Anderson). The Court, 

however, welcomes any effort by counsel to make the instructions from these sources more 

direct, understandable, and concise. 

Final Pretrial Order 

The parties shall submit a joint proposed final pretrial order, using the attached form, on 

or before January 20, 2023.

 Trial Briefs 

The parties are to file trial briefs on or before February 3, 2023. All briefs shall comply 

with S.D. Ohio L. R. 5.1, with citations and references conforming to S.D. Ohio L. R. 7.2(b). 

Counsel should use their trial briefs to instruct the Court in advance of trial in any area of law 

upon which counsel will rely at trial. Therefore, the briefs should contain arguments, with 

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 7 of 15 PAGEID #: 7212
8 

citations to legal authority, in support of any evidentiary or other legal questions which may 

reasonably be anticipated to arise at trial. 

II. TRIAL PROCEDURE 

 Counsel Tables

 Plaintiff will occupy counsel table next to the jury box. Defendant will occupy counsel 

table across from Plaintiff. 

Appearances

 Upon arrival, counsel will enter their appearance with the Court Reporter and the 

Courtroom Deputy before the start of the opening session of the trial or any other proceeding 

before the Court. 

Court Sessions

 Trial will be held Monday through Thursday of each week. 

 Friday sessions are not held because the Court regularly schedules final pretrial 

conferences, criminal matters, and other motion hearings on that day. 

 Morning session begins at 9:00 a.m. and will recess at approximately 10:30 a.m. for 15 

minutes. 

 Noon recess will be at approximately 12:00.p.m. 

 Afternoon session begins at 1:00 p.m. and will recess at approximately 3:30 p.m. for 15 

minutes. 

 Court will adjourn at approximately 5:00 p.m. 

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 8 of 15 PAGEID #: 7213
9 

 The parties and all counsel will be present at counsel tables at all sessions before the jury 

is brought into the courtroom and will remain at counsel tables until after the jury leaves the 

courtroom at the end of all sessions. The parties and counsel will stand upon the entrance and 

exit of the jury. 

Addresses By Counsel

 Counsel will address the Court and the jury in the following manner: 

 (a) Voir dire examination, opening statements and closing arguments will be 

conducted from the lectern facing the jury. 

 (b) All addresses to the Court will be made from the lectern facing the Court. 

 (c) Counsel shall stand when addressing the Court for any reason. 

Examination of Witnesses

 Counsel shall conduct their examination from the lectern. During direct examination and 

redirect, counsel may move about in the well of the Court as necessary. On cross-examination, 

however, counsel shall examine from the lectern. 

 In advance of trial, counsel will instruct his or her witnesses to answer questions with 

courtesy. Evasive answers, answering a question with a question, or disrespect to opposing 

counsel will not be permitted. 

 Counsel are expected to extend equal courtesy to all witnesses. Counsel will wait until 

the witness has finished an answer before asking the next question. Multiple questions and 

repetitious questions will not be permitted. Counsel may not by any action, inflection, or 

expression indicate disbelief of any witness’s answer. Counsel shall admonish their clients and 

witnesses to desist from such conduct. 

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 9 of 15 PAGEID #: 7214
10 

 Witnesses shall be treated with fairness and consideration. They shall not be shouted at, 

ridiculed, or otherwise abused. The untruthful or hostile witness can be examined firmly and 

extensively without abuse. 

 When a party has more than one attorney, only one may conduct the direct or cross 

examination of a given witness. 

 Counsel shall not approach a witness without asking the permission of the Court. When 

permission is granted for the purpose of working with an exhibit, counsel should resume the 

examination from the lectern when finished with the exhibit. 

 Counsel are responsible for witnesses speaking so that their testimony will be easily 

heard by all members of the jury. 

 Upon completing his or her examination of the witness, counsel shall advise the Court, 

after which the Court will advise opposing counsel to proceed. 

 During examination of a witness, counsel will first obtain permission of the Court if they 

wish to confer with co-counsel. 

Objections

 Counsel will stand when making an objection and will make the objection directly and 

only to the Court. 

 When objecting, state only that you are objecting and state the legal grounds therefor. 

Objections shall not be used for the purpose of making speeches, repeating testimony, or to 

attempt to guide a witness or influence the jury. 

 Argument upon an objection will not be heard unless permission is given or argument is 

requested by the Court. Either counsel may request a bench conference. 

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 10 of 15 PAGEID #: 7215
11 

 Decorum

 Colloquy or argument between counsel will not be permitted. All remarks shall be 

addressed to the Court. 

 Counsel shall maintain a professional and dignified atmosphere throughout the trial. 

 Appearance, mannerisms, or habits that are designed to arouse the sympathy or prejudice 

of the jury are an impediment to an impartial trial and will not be permitted. 

 During a trial, counsel shall not exhibit familiarity with witnesses, jurors, or opposing 

counsel and shall avoid the use of first names. No juror shall be addressed individually or by 

name. 

 During opening statements and final arguments, all persons at counsel table shall remain 

seated and be respectful so as not to divert the attention of the Court or the jury. 

 Do not ask the Court Reporter to mark testimony. All requests for re-reading of 

questions or answers shall be addressed to the Court. 

Depositions

 Counsel will confer in advance of trial and attempt to resolve objections by agreement. If 

any objections remain for ruling, counsel shall jointly prepare a list of objections identifying the 

page number and line(s) of the deposition where the objection will be found and stating in one 

sentence the grounds for the objection. This procedure applies to both written and video tape 

depositions. Thus video tape depositions which contain objections must be accompanied by a 

full or partial transcript. The jointly prepared list of objections and grounds for the same shall be 

delivered to the Court on January 20, 2023. 

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 11 of 15 PAGEID #: 7216
12 

 Video tape presentations must include all equipment and a method for editing the sound 

to delete testimony as to which the Court has sustained an objection. 

Demonstrative Evidence

 If any sketches, models, diagrams, or other demonstrative evidence of any kind will be 

used during the trial, they must be exhibited to opposing counsel one week prior to trial. 

Objections to the same must be submitted to the Court prior to the commencement of trial. 

Demonstrative evidence prepared solely for the purpose of final argument shall be displayed to 

opposing counsel at the earliest possible time but in no event later than one-half hour before the 

commencement of the arguments. 

 Counsel must supply their own easel, flip charts, etc. for trial. 

Jury

 The Court will seat a jury of eight (8) members. In accordance with Fed. R. Civ. P. 48, 

all jurors shall participate in the verdict unless excused pursuant to Rule 47(c). Unless the 

parties otherwise stipulate, the verdict shall be unanimous, and no verdict shall be taken from a 

jury reduced in size to fewer than six (6) members. 

Voir Dire Examination

 The whole panel of prospective jurors (i.e. those in the jury box and those seated in the 

rear of the courtroom) will be examined and accepted or challenged (for cause or by peremptory 

in one continuous examination. 

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 12 of 15 PAGEID #: 7217
13 

 Each prospective juror is assigned a number by the Clerk’s Office. Counsel will be 

provided with a list of the jurors' names and numbers prior to the commencement of trial. When 

challenging a juror, counsel should refer to the juror by number only. 

 The prospective jurors will be seated in numerical order in accordance with the 

diagram attached hereto as Exhibit A. 

 The Court will conduct a preliminary voir dire examination tailored to the issues in the 

case being tried. Prior to trial, Counsel are to submit questions they would like the Court to 

include in its voir dire examination. Copies of such questions should be served on opposing 

counsel. 

 Counsel may supplement the Court’s examination, but they may not repeat in the same or 

in some other form any question already put to the panel by the Court. Counsel shall, at the final 

pretrial conference, submit in writing general areas of questions they would like to ask during 

voir dire. 

 Counsel must address their questions to the whole panel in general and may not question 

an individual juror–unless it develops from a question put to the whole panel and the answer of a 

specific juror justifies further inquiry.

 Counsel will not be permitted to question jurors individually regarding background 

information. This information is contained in juror questionnaire forms which are on file in the 

Clerk’s Office. Counsel should examine these questionnaires prior to the commencement of 

trial. Counsel may inquire regarding any omission in a juror’s answer to the juror questionnaire 

or, after obtaining the Court’s permission, regarding any inquiry justifiably elicited by 

information contained in the juror’s questionnaire. 

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 13 of 15 PAGEID #: 7218
14 

Challenges

 The entire panel shall be challenged for cause, including jurors seated in the jury box and 

those seated in the rear of the Courtroom. Any jurors seated in the jury box who have been 

excused for cause will be replaced by the next available juror from the rear of the Courtroom. 

 

Peremptory Challenges

 Each party will be entitled to three peremptory challenges. 28 U.S.C. §1870. 

 The parties will exercise their peremptory challenges alternately with the plaintiff 

exercising the first challenge. If either party “passes”, that challenge will be counted as used. 

 Peremptory challenges will be directed only to the prospective jurors seated in the jury 

box. When a juror is excused, he or she will be replaced by the next available juror from the rear 

of the courtroom. 

Sanctions 

The parties and counsel shall comply fully and literally with this pre-trial order. The 

Court will consider the imposition of appropriate sanctions in the event of non-compliance, 

including monetary sanctions, the dismissal of claims or defenses, or the exclusion of evidence. 

Fed. R. Civ. P. 16(f). 

Other Matters 

The Court will consider adopting any other pre-trial and trial management procedures 

upon which the parties agree. Fed. R. Civ. P. 16(c). 

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 14 of 15 PAGEID #: 7219
15 

 This order supersedes all previous orders in this case to the extent previous orders are 

inconsistent with this order. 

 Parties are reminded that the use of mobile devices, including but not limited to text 

messaging and emailing, during status conferences before the Court is strictly prohibited. 

 Parties shall address questions about this order to the Court’s Law Clerk, Armani 

Madison, at 614-719-3262, by way of a telephone conference with counsel for all parties 

participating, or with fewer than all counsel participating with express permission of nonparticipating counsel. 

 IT IS SO ORDERED. 

 

 ___________________________________ 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE

DATED: October 14, 2022

Case: 2:17-cv-00823-ALM-CMV Doc #: 155 Filed: 10/14/22 Page: 15 of 15 PAGEID #: 7220