United States District Court, E.D. Arkansas, Western Division
WILLIAM R. DOWNING, JR. PLAINTIFF
DEPARTMENT OF FINANCE AND ADMINISTRATION, an Agency of the State of Arkansas; BOB HAUGEN and DAVID JUSTICE, Both in their Individual and Official Capacities DEFENDANTS
MARSHALL, JR. UNITED STATES DISTRICT JUDGE
Schedule. We'll start trial as planned on
Monday, 2 April 2018 in Courtroom 1A of the Richard Sheppard
Arnold United States Courthouse. The Court will hold another
pretrial at 10:00 Monday morning to discuss the final
exhibits and law issues, as needed. The voir dire will begin
at 1:00 p.m. We'll pick our jury, do the preliminary
instructions, and open Monday afternoon. The proof will start
at 8:30 a.m. Tuesday and each morning thereafter. Counsel
should arrive by 8:15 each morning.
Pending motions. For the reasons stated on the
record at yesterday's pretrial hearing, the motion to
reconsider, No. 92, is denied with caveats. And the motion to
quash Haugen's subpoena, No. 99, is granted in part and
denied in part.
Jury instructions. The Court is attaching its
working drafts of (1) the voir dire, (2) the preliminary
instructions, (3) the final instructions, (4) the
questions/verdict, and (5) the Rehab Act damages instruction
and question. After further thought, the Court agrees with
the parties that the second part of draft Question 1 - about
the business-judgment rule - shouldn't go to the jury.
Instead, this issue will be tried to the Court. Liability and
damages will be bifurcated, as discussed yesterday.
Damages. The Court is inclined to agree with Downing
that emotional distress damages are available, but the Court
is continuing its research and thinking on this point. These
drafts include that line item. If the law is unclear,
submission seems the route most likely to avoid a retrial
after any appeal. The Court will hear further argument if we
Witnesses and Exhibits. The Court appreciates the
parties7 electronic and paper copies of the potential
witnesses and exhibits. Please continue collaborating on the
audit documents. And please alert the Court as soon as
possible with updated electronic copies of Downing's
exhibits if there is an agreement on more redactions. During
trial, by the close of business each day counsel should let
each other know who they'll be calling the following day.
Voir Dire. The Court will conduct most of the voir
dire, with follow-up by each side -ten to fifteen minutes at
most. Please focus your questioning. Voir dire is not a time
to explain the law or the burden of proof, to explain what
the case is about, to seek commitments, or to pump the
potential jurors full of fairness. Instead, please ask lean
questions about potential jurors' experiences and views
to ferret out bias. If the parties would prefer to have the
Court ask certain questions, please submit them to chambers
for consideration by close of business on Friday, 30 March
Openings and Closings. Twenty minutes a side for
opening Monday afternoon. Five-minute mini-openings a side
every morning thereafter. Thirty minutes a side for closing.
Downing may reserve some rebuttal.
Objections. Please avoid speaking objections in
front of the jury. A word or two will do. If the Court needs
to hear more, we'll have a bench conference.
Thank you for serving. Echo "Called to Serve”
A morning of speaking the truth, voir dire = twelve
people good and true.
Two to three days - school day.
Urgent or extraordinary obligations this week?
Rules of the Road:
- Can I be completely fair and impartial?
- Can I decide the case based solely on the evidence seen and
heard in this courtroom, the law as explained by the Court,
and my common sense?
- Questions and Answers. You = you and your immediate family.
- Raise your hand, state your name, and answer.
- Can answer at the bench if uncomfortable answering a
particular question in front of others.
- Eighteen, but all - Notepads.
- Questionnaires. Summary. Confirm lawyers have.
- Case Sketch - Not evidence, just background
i. This is a civil case. The Plaintiff, William Downing, is
suing his former employer, the Department of Finance and
Administration, and two of his managers there, Bob Haugen and
David Justice. After a few years working at the Department,
Downing needed hip-replacement surgery. He went on twelve
weeks of FMLA leave.
returned, he had some permanent hip-related restrictions from
his doctor. Downing says the Department and his managers
changed his job, failed to accommodate his physical
limitations, and ultimately fired him because of his leave
and his limitations. The Department, Haugen, and Justice say
they didn't change the job, tried to accommodate
Downing's limitations, and fired him only because he
couldn't do key parts of the job. The jury will decide
what the facts truly are.
Plaintiff William R. Downing Jr.
= Luther Sutter and Luc Gillham
Defendants Department of Finance and Administration, Bob
Haugen, and David Justice Lawyers = Jennifer Merritt and
Haugen excused because of illness.
Witnesses [Read Lists]
the parties? Lawyers? Witnesses?
Call Eighteen, But All - Notepads
General Background Questions
Know other panel members? Know lawyers or Court staff? Know
Legal training or experience? Deal with the law regularly
Prior jury service?
Prior court experience? Sued or been sued? Witness?
Religious convictions against sitting in judgment?
Negative feelings about civil justice system?
sue, then win? D. Case-Specific Questions
answer about you and your immediate family; approach to
answer sensitive questions
Employed in personnel or human resources? Involved at work in
approving or disapproving leave by other employees?
Anyone ever employed by a state agency? A state-funded
Anyone work regularly with folks from the Department of
Finance and Administration?
Anyone ever taken FMLA leave from work?
Anyone ever had a physical disability?
Anyone ever sought a workplace accommodation for a physical
Any prior experience with the Department of Finance and
Any strong opinions about the Department of Finance and
Administration and the work it does?
Anyone ever bought surplus property from the Department of
Finance and Administration?
Juror Question Time
Lawyers' Follow-Up Questions? Fed.R.Civ.P. 47(a).
Strikes for Cause. Fed.R.Civ.P. 47(c).[*]
Peremptory Challenges. Fed.R.Civ.P. 47(b).[**]
Three each side.
Challenging Strikes. Race or Gender? Batson.[***]
and Swear Jury.
and each of you do solemnly swear or affirm to well and truly
try the matter now on trial and render a true verdict
according to the law and the evidence, so help you God."
Thanks and Goodbye venire.
DRAFT PRELIMINARY INSTRUCTIONS
INSTRUCTION NO. 1
and gentlemen, I will take a few moments now to give you some
initial instructions about this case and about your duties as
jurors. At the end of the trial I will give you further
instructions. I may also give you instructions during the
trial. Unless I specifically tell you otherwise, all these
instructions-both those I give you now and those I give you
later - are equally binding on you and must be followed.
the judge of the law and you are the judges of the facts. As
judges of the facts, it's your duty to determine the
truth from the evidence and the reasonable inferences arising
from the evidence. In making your factual decisions, you must
not engage in guess work or speculation.
a civil case. As I said, William Downing has sued his former
employer, the Arkansas Department of Finance and
Administration, and two of his former managers there, Bob
Haugen and David Justice. The Department of Finance and
Administration is a state agency that handles, among many
other things, the redistribution and sale of surplus property
used in state government. The surplus property includes
things like office furniture, vehicles, computers, and
furnishings. Mr. Downing worked for the Department handling
this surplus property. He worked in the warehouse, did some
computer tasks, and made online sale.
has hip problems. He asked for, and received, twelve weeks of
FMLA leave because he needed hip-replacement surgery. About a
month after he returned to work, Downing's doctor
concluded that Downing couldn't work more than two days a
week in the warehouse or lift anything heavier than fifty
pounds. The Department decided that Downing could no longer
perform the essential functions of his job. Downing was
alleges that the Department, Haugen, and Justice violated the
Family Medical Leave Act, the Americans with Disabilities
Act, and the Rehabilitation Act. He says they unlawfully
changed his job while he was on leave, didn't accommodate
his physical limitations, and then fired him for
discriminatory reasons. The Department, Haugen, and Justice
say they didn't change the job, tried to accommodate
Downing's limitations, and fired him only because he
couldn't do key parts of the job.
is ill. I've excused him from attending the whole trial.
If he is well enough later in the week, he”ll testify.
We'll see. I'll keep you posted. Don't hold it
against Haugen, Justice, or the Department that Haugen
isn't here. And don't lean in Haugen's favor out
of concern for his health.
all the evidence, you will decide what the facts are and
answer the liability questions I'll list for you in a
moment. Your answers to these questions will be your verdict
in this case. You are entitled to consider all the evidence
in the light of your own observations and experiences in the
affairs of life. You may use reason and common sense to draw
conclusions from facts that have been established by the
evidence. Depending on your answers to the liability
questions, the Court may ask you some questions about
allow any sympathy or any prejudice to influence you. The law
demands of you a just verdict, unaffected by anything except
the evidence, your common sense, and the law as I give it to
should not take anything I may say or do during the trial as
indicating what I think of the evidence or what I think your
verdict should be.
INSTRUCTION NO. 2
mentioned the word "evidence." "Evidence"
includes the testimony of witnesses, documents, and other
things received as exhibits, any facts that have been
stipulated - that is, formally agreed to by the parties - and
any facts that have been judicially noticed-that is, facts
which I say you may, but are not required to, accept as true,
even without evidence.
things are not evidence:
1. Statements, arguments, questions, and comments by lawyers
representing the parties in the case are not evidence.
2. Objections are not evidence. Lawyers have a right to
object when they believe something is improper. You should
not be influenced by the objection. If I sustain an objection
to a question, you must ignore the question and must not try
to guess what the answer might have been.
3. Testimony that I strike from the record, or tell you to
disregard, is not evidence and must not be considered.
4. Anything you see or hear about this case outside the
courtroom is not evidence, unless I specifically tell you
otherwise during the trial.
a particular item of evidence is sometimes received for a
limited purpose only. That is, it can be used by you only for
one particular purpose, and not for any other purpose. I will
tell you when that occurs, and instruct you on the purposes
for which the item can and cannot be used.
some of you may have heard the terms " direct
evidence" and "circumstantial evidence." You
should not be concerned with those terms. The law makes no
distinction between direct and circumstantial evidence. You
should give all evidence the weight and value you believe it
is entitled to receive.