Affidavit of Dr. Robert S. Miller (Redacted)

    CHAMBERS. FERGUSON. WATT. WALLAS. ADKINS & FULLER. P.A.

ATTORNEYS AT LAW

SUITE 73O EAST INDEPENDENCE PLAZA

951 SOUTH INDEPENDENCE BOULEVARD

CHARLOTTE, NORTH CAROLINA 2A2O2
TELEPHONE 1704) 375-4461

June 10, 1983

JULIUS LEVONNE CHAMBERS

JAMES E. FERGUSON. I I

MELVIN L WATT

JONATHAN WALLAS

KARL ADKINS

JAMES C FULLER. JR

YVONNE MIMS EVANS

JOHN W. GRESHAM

GILDA F GLAZER

LESLIE J WINNER

JOHN T NOCKLEBY'

.OF O,C, BAR ALSO

Ms. Lani Guinier
NAACP Legal Defense Fund
f0 Columbus Circle
Suite 203(l
New York, New York 10019

Re: Gingles v. Edmisten

Dear Lani:

I think that our meeting was relativeLy productive and
feel good about Bernie's testimony. I am gI-ad that you
could come. A coupl-e of loose ends:

1. I have not received the historian testi- \'-.-
mony. If it has not been sent, please
send it.

2. I can't remember whether or not you
said you would try to talk to Alex
Willingham about the scope of his tesEi-
mony. If you didn't, can you do that?
I also need to get his vita soon. The
defendants have decided that they will-
not stipulate to the expertise of any-
body. I think that's okay but we stilL
need to get his vi-ta to include in our
trial exhibits.

3. I am enclosing a copy of Rules 25, 26
and 27 of the Eastern District Rules.
I think I can pretty well handl-e the
Pre-trial Order. We do have to do pro-
posed Findings of Faet and Conclusions
of Law. I think that the way to do
that is for me to work on the Findings
of Fact and for you to work on the

,.1



Ms. Lani Guinier
Jrrne 10, 1983
Page 2

Conclusions of Law. We al-so need to
do a "concise memorandum" of authori-
ties on contesLed issues of Iaw. I
would suggest that you do that.

We agreed on July 6 for the all attorneys meeting which is
required before the pre-trial conference. I don't reaL1y
think that you need to come to that.
I will keep plugging arday at pulling it a1l- together. If
I have probl-ems, I will 1et you know.

I enjoyed spending time with you, as always, 'Po=gS and
Bess was wonderful-. I am sorry that you misseed it.

Sincerel-y,

LJW: ddb
Enclosure

i/! l,i't ,',,

"Jerfi" J. Winner



L
R.25 DISTRICT COURT RULES R.25

vided is not sufficient, additionril.pages shall be attached. An objection to an in-tcrrogatory shall be made by statiirg-the objection and ilie iia.on ttrerefoi il-rh.
space provided for the response. Belore filing the intenoiaiorid;;;-t;i;l;; ;ir';
responses and objecrions, ii any, the respondifrg prrrvih"ji;ii;il th.;;;;;'";;
sheet conr,aining a statement (i) ttrat eich resio'nse i.p"i"t"rv;;d--i;li;;;;;;;
each interrogarory, e.xge.pt those to which.6bjections ";t i";e;,';;e 1il",il;capacity, if any. in.which such respon{ent is acting, *t i"i, statement ,irrit uesigned and verified by the respondeirt. where there iie ou:L.tion., iir;;;;h;li b"attached to the interrogatories a second sheet, signed bv co"unsel;"ki;;;;h;;:jection, stating the number of each such. intefrogui6ry ;;d il;;;.?iiiig uvreference the reason stated for each obiection.

%.a!r.Depositions for Use at Tliil. Depositions de bene esse shall not beregarded as being within the rules applicabli to discovery-.

RuIe 25.00

FINAL CIYIL PRE.TRIAL CONFERENCE
25.01: scheduling..and Notice. A final pre.trial 'conference shall bescheduled in everv civ-il action after the time for discorery iru. 

"*pirea. 
n","-.f"Itshall give at leasf 30 dayJ notice tl.r.r,-."" f*.;;;:"' 

e' J'ra'

. 25.02:.Preparation by Counsel for Final Pre-Trial Conference. At leas! l0
days prior to the final pre'trial conference, trial counsel for each of the par-
ties shall confer and prepare a proposed final pre-trial order. It shall be'theduty of counsel for the plainiiff-to arrange for this conference. In the
absence of an agreement to the contrary, the ionference of afiorneys shall be
held in the office of the attorney ,er.eit the headquarters of the division towhich the action has--been assigned. Each counr"l ,hrll bring to the ctn.ference copies of exhibits .to be introduced into evidence, lists-of rvitnesses
co be called, and designation's of discovery material to be used at trial.

25.03: Form of Pre-Trial order. The pre-trial order shall be prepared in onesequcntial document without reference to attached exhibiis or schedulesand shall contain the..following in five separate sections, numbered byroman numerals, as indicated:
(a) I. stipulatio,ns. stipulations covering jurisdiction, joinder, capacity

of the Jrarties, all relevant and material facts, Ilgal issues and factual iisres.(bl II. Contentions. Contentions covering irafters on rvhich the parties
have i-r.en unable to stipulate, including juris'diction, misjoinder, capacity ofthe prrries, relevani and material faiti, Iegal issues and factuai issues.
Clainrs and defenses as to which no contentions are listed in the pre-trial
order are deemed abandoned.

(c) III. E.xhibits. A list of exhibits that. each parry may offer at trial, in-cluding an)' map or diagram, numbered sequentialry, which numbers shailremain rhe same throughout all further proteedingi. copies of all exhibits
shall lrr: grrovided to opposing counsel noi later than the ,ltoro.y conference
pror"iciu'd for in Rule 2b.02. The court may excuse the copyirrg oi lurgu -up,or othcr exhibits' Except as otherwise iniicated in the piu.trLt ordei, it witt
be de'cmed that all parties slipulate that all exhibirs aie authentic and may
be adrnicted into evidence wiihout further identification or proof. Groundsfor objcction as to authenticity or admissibility must be set forth in the pre-trial <-rrder.

. (d) IV. Designation of pleadings and Discovery lUaterials. The designa-tiou of all portions of pleadings a'd discovery miLerials, including dep"osi.

24



I

..., -t{ r 
.

R. 25 EASTERN DISTRTCT COUNr OF NORTH CAROLINA N. Zd
1 ir i.r.,. :r-, ,( rli.. a(i:,.,.:l-f -/.. :. :
u.ti.ons, interrogatories'and request for admissions that each party may offerat trial by referencr, tg.#gj.urent v.orume, page nu*urr, ,nd tin.. oti..ti;;by opposing counsel sxeu be noted by do&rie"i "otr*., page number andline, and reasons for such objections shall be stated. ..

(e) V. WiLnesses. A list of the names and addresses of all witnesses each
.,-'party'may offer at trial, together rvith a brief statem""t 

"r 
*nr;;;;;;;;:

poses to establish by their teltimony. \

25.04: Pre-Trial Conference
(a) Purpose. To resolve any disputes concerning the contents of the pre.

trial order. :

(b) Counsel shall be.fully prbpared to present to the court all informa.
tion and document-ation.-necessary for completion of the pre-trial orJ"r.
Failure to do so shall result in the sanctions piovided by this iule.

(c) Sonctions. Failure to comply with the provisionj of Rule 2s.01(b) may
resulL in the imposition of a monetary fine not to excbed S2SO.0O against th'e
offending counsel and may result in any other sanction allowab-le by the
Federal Rules of civil Procedure against lhe parties or their counsel.(d) counsel for plaintiff shalr be responsible for preparing the final pre-trial order and presenting it to the court, properly signed uy all iouniibl, at a
.ti"tg to !e degignated .by lhe court. Upon approvat, UJ,.ttre iourt, the original
shail be filed wirh rheibieik.

25.05. Forrn of Pre-Trilf'ordur. A pre.trial order in the following formshall be sufficient to comply with these rules:

- r-,,,)l,l: :r,.ri

JOIiN DOE, by hisguardian
ad litem, JANE DOE

Plainriff

v.
, 'i:

x)'z coRP.
Defendantr .: .; i ' :..

No.82-1-CIV.8

PRE.TRIAL ORDER

)

)

,.1
)

)

I
)

)

Dare of Conference, .i" August 19g2.

'\ppearance: John Y. Lawyer, Rareigii, North carolina, for plaintiff;
Sarn X. AtLorney, Fayetteville, North Carolina, for defendant.

I. S'I'IPULATIONS.
,\. all parties are properly before the court;
IJ. the courr has jurisdiction of the parties and of the subject matter;C all parties have been correctly dlsignated;
P there is no qu.estion as to misjoindei or nonjoinder of parties;E. plaintif f, a minor, appears thiough he, guuidiurrfl-. Facts:

l. Plaintif f is a citizen of wake county, North carorina.2- Defendant is a New york corporation, licensed to do business and
doing business in tbe State of North Carolina.

25



R.25 DISTRICT COURT RULES R.25 J

r.t

G. Legal Issues: - 'l '

May a 9.year old minor be guilty of contributory negligence?

H. Factual Issues: :

1. was plaintiff injured and damaged by the negligence of the defeir-. dant?
2. What amount,'if any, is plaintiff entitled to receive.of defendant as

compensatory damages?

II. CONTENTIONS

A. Plaintiff ....''
l. Facts: .'

(a) That Richard Roe was driving defendant's truck as defen-
dant's agent.
(b) That Richard Roe was negligent in that he drove at an ex-
cessive speed and while under the influence of intoxicating Iiquor.

2. Fact,ual Issues:

what amount, if any, is plaintiff entitled to'recover of defendant as
punitive damages?

B. Defendant
1. Facts:

That Richard Roe, a former employee, took defendant's truck
without authorization and, at the time of the accidenL, was not the
agent or employee of defendant.

2. Factual Issues:

Did plaintiff, by his own negligence, contribute to his injury and
damage?

III. EXHIBITS I

A. Plaintiff : '

Number
I
2

B. Defendant

Title
Patrol Report

Photo of Plaintiff

Title
Photo of Scene

Scale Model

Objection
Hearsay

Number
I
2

':26

Objection



R.25 EASTERN DISTRTCT COURT OF NORTH CAROLTNA n. aI

IV. DESIGNATION OF PLEADINGS AND DISCOVERY MATERIALS

A. Plaintiff

Document
Plaintiff 's
firsl Set of
interrogatories

Deposition
of Richard
Roe

B. Defendant
None

V. \\'ITNESSES

A. Plaintiff
Name

Name

Sam Smith

Portion
Nos. l, 8 and..'

.9.
'n

:'
Vol. 1,line 6,
p. 1, thru line
5,p;.6

Objection
No.8

I

Line 6, p. 1

thru line 2,
p.7

Reason
Privilege

John Jones '

Frank Flake i

Joe Rock , ,t',..t:

B. Defendant

AII n'itnesses listed by plaintiff.

Hearsay

Address Proposed Testimony

615 Rains St,reet - Facts surrounding
Raleigh, N.C. accident, extent of

"Selma, N.C. Speed of defendant's
'Temple, Ariz. vehicle, intoxication

driver

Address

4 Appian Way
Rome,Italy

Proposed Testimony

Facts surrounding
the theft by driver of the
vehicle

Trial Time estimate: _ days.

.JOHN Y. LAWYER
Counsel for Plaintiff

SAM X. ATTORNEY
Counsel for Defendant

27



'r

R. 26 EASTERN DISTRICT COURT OF NORTH

APPNOVED BY:

J.RICH LEONARD
IUagistrate

982

CAROLINA R.27

... Rute26.00

ATTORNEY PREPARATIONS FOR CIVIL TRIAL

on or before the Thursday preceding the first day of the session at rvhich acivil action is ser for trial, counsel forlll parties ,i,"ri rii" *ith the clerk:26.01: In All Cases.
(a) A concise memorandum of authorities on all anticipated evidentiaryquestions and on all conlested issues of law;(b) morions relating to the admissibility of evidence.

26.02: In Jur;' Cases.
(a) a Iist of all voir dire questions as required by Ltcal Rule 0.02;

Blackmar (3d Ed'); 5th CirCuit Pattern Instructionq uniio.th Carolina pat-
tern Insrrufiions shalr be by reference. au orhei ;;lrr;;; shail conrain cira:.lions to supporting authorities

26'03: In Non-Jury cases. proposed findings of fact and conclusions oflaw.
26'04: Late Development in the case. counser shail immediatery informthe courL, opposing counsel and counsel in the ne*t socc"eding two cases onthe calendar of any settrement or of any developmentror an emergeDcyrvhich rr)ay necessitate a motion for continuance.

Rule 27.00

CIVIL TNIALS

27'01: opening statements- At the beginning of the triar, each party(beginni'g r'ith the party having the burden of proof on the first issue) shail,
'n'ithout argument and in such reasonable time as the court ailows, staLe tothe courr;rnd lhe jury the following:

(a) Lhe subsLance of the claim, counterclaim, crossclaim or defense; and(b) *'hat counsel contends the evidence will show. parties not having theburden of proof on the first issue may elect to make an.opening statementirnmedi,rely prior to presenting evidence, rather tirun ut ti" beginning of therri al.
27'02: \\'itnesses. counser may not release a person from a subpoenawirhout norice !o opposing counsel and leave of .o.r.t. A party objecting to

28



-
R.28 DISTRICT COURT RULES R.28

'the release of a person from a subpoena without notice to opposing counsel
and leave of court. A party objecting to the release of a person shall bear all
costs incident to such person which arise subs.qu.ni to the request for
release. The courtmay, in its discretion and in the interestof justice, permit
a part-v to call and examine a witness not lisLed in the final pre-trial orier.-' '' 

27 j03: Eihibits.
(a) All exhibits shall be premarked with stickers obtajned from the

clerk's office rvith the sequential numbers as listed in the pre-trial order.
(b) copies of all exhibits, properly bound, shall be provided to the courL

at the beginning of the trial.
(c) The original exhibit shall bear a sticker. After receipt into evidence,it shall remain in the custody of the courLroom deputy, except *,hen being

used by a wiLness or viewed by the jury.
(d) Copies of all exhibits shall bear the photostatic image of the sricker

or a typed or printed reproduction thereof.
(e) Counsel are encouraged to provi,de one,or more copies of exhibits for

use by the jury.
(f) Upon presentation of an exhibit!o a r+'itness, counsel shall announce

to the court the exhibit number. The exhibit shall not be handed r<., opposing
counsel. should opposing counsel conLend lhat a copy has not been pio"ided
or that the exhibit has been lost or misplaced, that shall be broughtio the at-
tention of the court.

27.01: closing Argument. The court will set the times for.closing argu.
ment after consulraLion with parties. Unless otherwise ordered by thJcoJrt,

, the party with the butg.o of proof shall open and close the arguments. The open-
lng argument may not be waived.

27.05'. Taking verdicts and polliug the Jury. The courtmay take the ver-
dict of the jury in open court in the absence of any party or counsel. unress
the conrrary affirmatively appears of record, it will be presumed that theparLics lvere present or by their voluntary absence waived their presence.
The jury will not be polled unless a party requests a poll at the time the verdict
is takcn or unless a poll is ordered by the court.

Rule 28.00

CIVIL CONTEMPT

. 28..01: Rights of Contemnor. In all cases of civil contempt, the contemnor
shall trave due notice of the contempt charges, opportunity to ripiy to the charges
and.lotice of the date and place of hearing in ofen courl from'which the pub-lic
shall not be excluded
, 2ti.02: summary contempt Proceedings. In contempt proceedings where

the.court may' act summarily, the contemnor shall have tli'e right to defend
a,gainst the charges and lo offer evidence in the form of affidavits] The movant
shall have the right to offer similar evidence.

28.03: Plenary C.ontempt Proceedinge. In contempt proceedings where the
court may nqt act summarily, the presentation of evidence is governed by Rulel10l of the Federal Rules of Evidince. In no case of civil co-ntcmpt, ho-*.ever,
shall rh.e psrries be entitled t-o_trial byjury, but rather the districiiu;tg;befoit
whorn the matter is tried shall find th6 flcti'and enter a judgment oiorJer in ac-
cordance with the provisions of the Federal Rules of Civil Frocedure applicaLle
to non-jury cases.

,o