07/09 08:33
00:00:00 Good morning, everybody.
00:00:00 Please be seated.
00:00:01 Welcome.
00:00:01 Good morning.
00:00:06 All right, folks, we are on record in the matter of Seth Kroenke and Treasure Chest LLC and Randy Elliott, case number 38N20-08622CIVIL.
00:00:15 We have Mr. Kroenke here with counsel, Mr. Sorry, we've got the signs reversed today.
00:00:23 Mr. Brzezinski and Mr. Bedinger and Mr. Kroenke, welcome.
00:00:30 and Mr. Elliott here with Mr. Campion.
00:00:34 Good morning, welcome everybody.
00:00:35 All right, this is time set for jury trial.
00:00:38 A couple of preliminary issues jurors should be assembling downstairs, making sure we've got their paperwork filled out and that sort of thing, and we'll get the list for the first panel here shortly, I hope.
00:00:49 So you all have a list that was sent out yesterday of the entire panel.
00:00:55 The way this process works these days, we don't bring all 66 people up.
00:00:59 First of all, all66 don't show.
00:01:03 That's part of the issue.
00:01:04 But one of the things that we learned coming out of the pandemic is that it's better to do jury selection in smaller groups.
00:01:11 And so the way I've organized this, and I think I mentioned this at least at the trial call, is we'll have them come up in two groups.
00:01:17 And so I've asked for 20 in the first set and 15 in the second set.
00:01:23 So my guess is they'll be up at about 9 o'clock or so.
00:01:25 We hope to have their questionnaires to you with a list of who's actually coming up as soon as I get that assembled.
00:01:31 So we'll get that to you, give you some time to at least have a look at that before we start questioning.
00:01:35 So any questions about that process?
00:01:40 Okay.
00:01:41 A couple of other preliminary issues I wanted to make sure that I touched on.
00:01:46 Again, I'm planning on 14 jurors, 12 regular plus two alternates.
00:01:52 I don't select the alternates in advance we do that at the end of the case so basically everybody hears the same evidence and then when we're done two unlucky people or lucky people as the case may be get to go home and they don't deliberate so hopefully we won't need more than two we're still looking at a two week trial as I understand it or something close to it
00:02:15 I think we're going to be less than that.
00:02:17 Okay.
00:02:17 And that's what you all indicated at trial call.
00:02:20 I noticed in looking at the witness list that you all have a remarkable similarity in terms of the witnesses that you're both planning to call.
00:02:29 I don't think I've ever seen two final witness lists that had the same names.
00:02:35 So it looks like things probably ought to be going fairly smoothly in terms of that.
00:02:39 I did have some questions about that.
00:02:41 process, I see half a dozen or so people who may be called by deposition.
00:02:46 It looks like they're all remote folks that were relating to the mining operations.
00:02:51 I don't know whether they're actually going to be live, whether they're going to be by deposition.
00:02:56 It looks like you took quite a number of depositions, and I don't know whether you know that yet, but I wanted to at least get some sense from you of how much live testimony we're likely to get.
00:03:09 uh thank you your honor for the mining witnesses that are at Dan Creek we view those more as defense witnesses as the court noted we did conduct depositions my understanding right now is that they're at Dan Creek we tried to serve them unsuccessfully both parties have listed their address at Dan Creek we spoke with Mr Campion this morning my understanding is that they're still out there we don't know if they're coming or not if these witnesses do show up
00:03:37 And Mr. Campion can represent to us that they are coming.
00:03:40 We would gladly cross-examine them rather than reading their deposition transcripts.
00:03:44 However, if they're not going to show up, we would prefer to read their transcripts in our case in chief.
00:03:50 If Mr. Campion expects them to show up and then, surprisingly, they don't, we would request to read the deposition transcripts in rebuttal.
00:03:58 Mr. Campion, what's your view?
00:04:00 I don't disagree with what Mr. Benger indicated.
00:04:03 One of the things that we would like to explore with the court, and it doesn't have to be now, is the possibility of one or two of those witnesses testifying by Zoom from Dan Creek.
00:04:12 And I understand there's a STAR link there that would permit Zoom testimony.
00:04:17 It would be my plan to talk to them this afternoon or tomorrow to see how that link works and represent to the court whether or not I think it could work in the courtroom.
00:04:26 But we don't expect
00:04:29 All of them to be here in person.
00:04:31 One or two may end up in person if we can't facilitate a Zoom testimony.
00:04:36 And otherwise, I agree with Mr. Bedinger, the depositions will be fine.
00:04:39 Okay.
00:04:42 Mr. Bedinger, do you want to speak to the Zoom question?
00:04:45 We have no objection to witnesses being available by Zoom.
00:04:48 We would simply request as much notice as possible so we know how to prepare our case.
00:04:54 And for the court's reference, if we do
00:04:57 introduce deposition testimony through the transcript we expect it to be very short for each witness okay fair enough so in terms of zoom testimony one of the things again that we've all learned coming out of the pandemic is how to do hybrid cases it works I do them all the time in bench trials where we've got witnesses on zoom so that's not an issue as long as we've got a reasonable
00:05:21 Internet link out there at Dan Creek we can certainly make that happen we can put them up on the screen for the jurors to see that shouldn't be an issue so I would just ask counsel to work together let us know some somewhat in advance so we can make sure we've got a zoom link set up in fact I can get that set up I'll do that this afternoon so that it's available and you can get that to the witnesses to the extent that they need to be by zoom
00:05:50 One of the other things that I wanted to touch base on, at least before we get to evidence, is the fact that you've got claims and counterclaims, but you're all essentially calling the same witnesses.
00:06:02 And so you have a case in chief to present, you have a case in chief to present.
00:06:06 In a traditional trial, obviously you would each, you'd just be doing opposing witnesses and then you'd be doing your rebuttal.
00:06:15 With the same witnesses giving testimony on both sides of the case,
00:06:20 It's horribly inefficient, frankly, to call the witnesses twice.
00:06:25 It gets confusing for the jury.
00:06:28 It gets to be a waste of time, I think, for the witnesses in that sense also.
00:06:33 So I don't know whether counsel have talked through the practicalities of how this would work, and I probably should have raised these issues at trial call, but I didn't have your witness list.
00:06:43 It makes some sense to me, at least, if you're going to call the same witness that you both present the testimony on both sides of the case from that witness.
00:06:54 I'd give you each a chance essentially at direct and cross and redirect so that you each get two full shots at the witness and then you present all of the testimony.
00:07:05 If that's acceptable, I would explain that to the jury in advance so that they're
00:07:10 They get some sense of what we're doing is a little bit out of the ordinary, but we're doing it for their efficiency So again, I don't need an answer from you now, but I would ask at least counsel talk through talk through that issue I don't anticipate starting evidence today At this point my expectation is that it's going to take us probably through both panels to get a jury if by some remarkable
00:07:37 Success we get 14 jurors out of the first panel I would ask you to be prepared to do opening statements but we wouldn't pick up with evidence until tomorrow my best guess is just the way these things go that we're not going to get all 14 out of the first panel and we'll probably just get the jury selection today and then open tomorrow morning any questions about that process okay
00:08:02 One other thing, and again, forgive me if I mentioned this at trial call, great.
00:08:06 If I didn't, I just want to make sure we've touched base on it this morning.
00:08:10 Whoever we get selected out of the first panel of jurors is on the panel.
00:08:16 So you're not going to get basically a chance to go through all two panels and then make your pre-em.
00:08:21 So we're going to, yeah, I...
00:08:23 It comes up on occasion.
00:08:25 People would like the chance to do the whole thing, but because we're doing them in panels, essentially, once you've allowed somebody to pass with no pre-empt, they're on the panel.
00:08:34 So there's no back strike?
00:08:35 No back strike.
00:08:36 Yes, sir.
00:08:39 Yes.
00:08:41 Judge, just to make sure that we do this smoothly.
00:08:46 If there is a witness that one of us wishes to strike for cause, would you allow us to finish our voir dire and then at the end of the process we can all approach the bench and ask to have or discuss striking that witness for cause versus some judges prefer that if a person says something that's objectionable, we bring that to your attention immediately and that person then is struck.
00:09:08 I personally don't like doing that.
00:09:09 It points to people and it may be seen as offensive.
00:09:15 Frankly, I've done it both ways.
00:09:18 There are times more often in criminal cases than
00:09:22 in civil cases where it's simply apparent that there's an issue, and I just assume let that juror leave instead of sitting through all of the questioning and things getting personal.
00:09:31 This is a civil case, so I think your approach, Mr. Brzezinski, is fine.
00:09:37 Finish your questioning.
00:09:38 What I do for cause challenges is simply if you have a cause challenge to make, simply ask to approach.
00:09:45 I'll bring both counsel up so we're not discussing it in front of the jurors.
00:09:50 So I don't want to taint the rest of the panel, and I don't want to embarrass anybody either in that process.
00:09:54 So if either of you have a cause challenge when you get done with the questioning, simply bring it to my attention, and you can approach at that point.
00:10:03 I understand there is no back striking from one panel to the other, but as we are striking witnesses in a single panel, can we go backwards and forwards?
00:10:13 Or once we pass discussing jury number two, we can't go backwards?
00:10:18 Okay.
00:10:19 I will let you question the entire panel.
00:10:24 Then we'll let the jurors basically take a break, go out.
00:10:27 I'll give you some time to each look through the panel with your clients and make a decision over who you're going to strike, and then you'll do all of your strikes at one time.
00:10:35 Backwards and forwards?
00:10:37 Basically, you're going to do them simultaneously.
00:10:39 Very good.
00:10:39 Thank you.
00:10:40 We'll give you a sheet to fill out, so...
00:10:43 If you strike two and you strike two, you've each got two left at that point because of the alternates.
00:10:47 So you get a total of four each with 14 jurors.
00:10:51 If by chance you both strike the same juror, it still counts against both of you.
00:10:56 You don't get an extra because you've exercised that preempt.
00:11:03 And if you use all four strikes in the first panel, basically you're stuck when it comes to the second panel, just to be clear.
00:11:14 It also often comes up when we're dealing with a second panel of jurors.
00:11:18 It may be that we get, I'll pick a number, 10 out of the first group and we're only looking for four.
00:11:23 You're not going to exercise all peremptory challenges when we get to the second panel.
00:11:28 We'll let you exercise the pre-amps that you have left that you want to exercise in the second panel.
00:11:34 If we've still got an excess of 14 jurors at that point, I simply draw names out of a hat and those are the ones who get dismissed.
00:11:42 It's just purely random at that point.
00:11:45 So one final thing on jury selection.
00:11:50 So once we get the jurors seated and qualified and we have everybody in here and you get your voir dire, basically you get 30 minutes each for the panel.
00:12:00 I'll give you some leeway, but roughly 30 minutes is what we have typically done for individual or panel voir dire.
00:12:08 Okay.
00:12:11 I see you looking hesitant, Mr. Brzezinski.
00:12:13 Yes, Your Honor.
00:12:15 I will tell you this, we have successfully done jury selection with 30 minutes per side in criminal cases.
00:12:41 I understand that you may want to go long with an hour because I didn't raise this time limit with you all in advance.
00:12:49 I'll give you 45 minutes.
00:12:52 But again, I'm going to have a second panel coming in.
00:12:54 I want to get through jury selection today.
00:12:56 I don't want that to spill over into tomorrow.
00:12:59 I don't see any reason why we can't.
00:13:03 It's a significant case for you all, but it's not a complicated case from the standpoint of picking a jury.
00:13:08 It's basically a contract dispute.
00:13:10 Okay.
00:13:17 Any other questions or issues on jury selection from either of you?
00:13:21 Okay.
00:13:25 One thing I wanted to make sure that I'm clear on is just when I introduce you.
00:13:29 I want to make sure that I pronounce your names correctly So mr. Campion, I know how to spell your name.
00:13:34 Mr. Brzezinski.
00:13:35 Am I saying that correctly?
00:13:37 Absolutely.
00:13:38 And is it bed injure or bed injure that injure bed injure?
00:13:41 Okay.
00:13:41 All right, mr. Bettinger.
00:13:42 Thank you Try not to mispronounce them, but like like to get it, right?
00:13:47 So All right
00:13:53 I gave you all yesterday the statement that I intended to give to the jury in terms of just a brief explanation of what the case is about.
00:14:01 I got your partial opposition.
00:14:02 Thank you for that for the correction.
00:14:04 I've made that.
00:14:06 I didn't see any opposition from
00:14:09 Mr. Campion's side, so I assume that that statement is okay from your perspective.
00:14:13 It is, thank you, Ron.
00:14:14 All right.
00:14:15 And then in terms of the preliminary instructions, I didn't see any objections from anybody.
00:14:18 They're standard boilerplate instructions, so that's my intention is to work through those as well.
00:14:25 One question for you all in terms of the jury instructions you gave me last week, the joint proposed instructions, those are substantive instructions.
00:14:33 Is it fair for me to assume that's all the instructions that either of you want, or is that just the agreed set, and you have additional ones that you intend to submit?
00:14:44 At this point, Your Honor, from our perspective, those are the substantive instructions we expect you to provide.
00:14:50 If there are additional procedural instructions that you think are necessary, I have no objection to that, and I suppose, depending on how the case could go, there could be some variation depending on how things go, but at this point, I don't expect that we're going to submit another
00:15:03 SET OF PROPOSED INSTRUCTIONS ON TOP OF WHAT HAS BEEN SUBMITTED.
00:15:07 MR. BENJER COMPILED THEM, BUT WE WORKED PRETTY DILIGENTLY TO COME UP WITH A JOINT SET SO THAT WE WEREN'T FIGHTING WITH EACH OTHER ABOUT THAT, AND I THINK THAT'S GOING TO BE MORE EFFICIENT FOR THIS TRIAL.
00:15:17 AND I APPRECIATE THAT.
00:15:18 I JUST WANTED TO MAKE SURE WE WERE CLEAR I WASN'T GOING TO BE GETTING ANOTHER SET OF
00:15:21 A dozen more that nobody had proposed yet that I hadn't had a chance to look at.
00:15:26 So, Mr. Benger?
00:15:28 I agree with what Mr. Campion said.
00:15:29 I've just been keeping my eye on the deposition transcript instruction.
00:15:33 If we do read depositions, we'd want to add that to the packet.
00:15:37 Okay.
00:15:37 Certainly.
00:15:47 Side note, on the depositions, those are written depositions.
00:15:50 That's what you have as transcripts, so you'd be reading those, not playing video depositions.
00:15:54 Is that right?
00:15:55 Correct.
00:16:00 Okay.
00:16:02 Any other issues on witnesses that we haven't talked about in terms of timing?
00:16:09 I want to stop and pause for a moment just to compliment you all on working together as well as you have.
00:16:14 I appreciate that.
00:16:15 The jury will appreciate that.
00:16:17 I think it makes trials much smoother when you all are cooperating.
00:16:21 And so it looks like that's what you've been doing.
00:16:23 So thank you for that.
00:16:25 In terms of any witness order issues, I saw a note I think over the weekend said you all had been working on some of those questions.
00:16:33 Is there anything that I need to address?
00:16:37 No, Your Honor.
00:16:38 Okay.
00:16:39 All right.
00:16:45 Any issues on exhibits that we need to address before jury selection?
00:16:50 I did see some objections that had been lodged.
00:16:55 I haven't seen an exhibit list yet from a formal exhibit list from either of you.
00:17:01 I did see the one that was attached to your objection, but that's the only one I've seen.
00:17:07 That's correct your honor.
00:17:08 I believe the defendants have Simplified their exhibit list dramatically the plaintiffs final exhibit list is included with the exhibits along with the USB Drive Okay for the court and then as the court remarks The plaintiff made numerous objections to some of the defense exhibits.
00:17:30 I believe we've worked them all out except for
00:17:37 a two-page document of Mr. Elliott's expenses that have been referred to by their Bates numbers, DEF 305 to 306.
00:17:47 I believe all the other objected-to exhibits have been left off the new exhibit list.
00:17:53 Okay.
00:17:54 I see you nodding, Mr. Campion, so it looks like you all are in fair agreement then in terms of where the exhibits stand, and we'll obviously take those up as they come.
00:18:02 Yes, General.
00:18:03 Okay.
00:18:04 And just for reference,
00:18:06 both plaintiff and defendants have marked the that document as which is DEF 305 306 it is defense exhibit a and it's plaintiffs exhibit 14 so there's some duplication but we're when that comes up it'll be I expect when Mr Elliott testifies
00:18:25 I would ask the court that we could address it at that point.
00:18:27 I don't think we need to address it now.
00:18:28 I don't think we have a factual basis to do so.
00:18:31 And I don't mean to get into the weeds over exhibits now.
00:18:34 The only comment I want to make sure that you all were clear on is if there is a disagreement over whether an exhibit is going to be entered.
00:18:41 If there's an objection to it, don't mention it or show it in opening when we get to that point.
00:18:46 That's standard stuff, but I just want to be clear on that point.
00:18:49 Of course, I agree with that.
00:18:50 My request for the one exhibit that we disagree with
00:18:54 Of course, we don't have to address it right now, but if we could address it outside of the presence of the jury so that we're not telling them to forget something we've just argued about for 10 minutes.
00:19:03 I prefer to keep those arguments about exhibits outside the presence of the jury as well.
00:19:09 If you know what they are, and there are a limited number of them that we can address at some point, then we'll have time to do it today, but perhaps after the session tomorrow.
00:19:23 or something like that.
00:19:24 We'll find a time where we can deal with it.
00:19:26 We'll just keep you all afterwards.
00:19:28 I believe that's the only one that we disagree on.
00:19:31 Okay.
00:19:33 And that's one of the ones that was listed on your objection list?
00:19:36 Correct.
00:19:37 Okay.
00:19:41 And it was marked DEF 305306?
00:19:44 That's correct.
00:19:46 It is letter B, as in Bravo, in my list of objections.
00:19:51 Okay.
00:19:53 I'll have a look at that
00:20:23 because you're going to be going second, at least in theory, Mr. Campion.
00:20:27 I think we've got a little bit of time to resolve that, so I'll get you an answer on that as soon as possible.
00:20:31 It may be that I want to hear more from you, but let me work my way through the briefs.
00:20:36 The other ones that looked like were not opposed, so that's easy enough.
00:20:43 Any other preliminary issues for either of you?
00:20:45 Mr. Bedinger?
00:20:46 No, Your Honor.
00:20:48 Mr. Campion?
00:20:49 I don't think so, thank you.
00:20:50 Okay.
00:20:50 Do you know where we stand on the jury list and how they're doing downstairs?
00:20:55 They are ready.
00:20:59 Are they going to give us the list and the questionnaires first?
00:21:02 Okay.
00:21:03 Can you go ahead and grab the questionnaires and get
00:21:18 We'll give them probably 15-20 minutes to look at the questionnaires and then bring the jurors up at about 9-15.
00:21:37 So folks, Madam Clerk is going to go run down and get the questionnaires and we'll print off a copy of the list for each of you.
00:21:44 I'll give you each a set plus a set for the court to take a look at and we'll plan to start jury selection here in about 20 minutes or so.