EAST ST. LOUIS - U.S. District Judge Stephen McGlynn, preparing for a September trial on the state’s weapon ban, finds his parties have planned a hybrid event of paper and people.
McGlynn would have preferred more people, according to a transcript of a Zoom conference he held on July 16.
When he learned neither side would call a historian he said, “I don’t get to raise my hand and ask a question?”
Zoom stayed silent and McGlynn said, “I just have to read whatever he writes or she writes and that’s as good as it gets?”
Assistant attorney general Christopher Wells said, “Our understanding is that the plaintiffs in particular take the view that historians themselves don’t have much to offer.”
Under the most recent Supreme Court decision on the right to bear arms, judges must review weapon laws in the light of historic tradition.
McGlynn presides over four cases with 23 plaintiffs.
He granted a preliminary injunction against enforcement of the ban last year and Seventh Circuit appellate judges vacated his order.
They found he acted prematurely and needed to develop a record.
McGlynn decided to proceed with speed and at one point the state and every plaintiff lawyer but Thomas Maag of Wood River wanted him to slow down.
He set bench trial for the week of Sept. 16.
After a bench trial parties can continue producing evidence and the judge might take months to reach a decision.
American Bar Association advises, “Counsel should be aware that although a bench trial may be more efficient and flexible than a jury trial, written submissions in a bench trial are often more voluminous and time consuming.”
McGlynn opened the Zoom conference by telling the parties he received their stipulation with respect to experts whose opinions might be offered but who wouldn’t be asked to testify.
Wells said each side identified three rebuttal experts.
He said the state deposed a plaintiff expert and five depositions were left.
McGlynn said he set a trial date but didn’t set a pretrial conference.
“We have a lot more leeway in how we start things off,” McGlynn said.
“If we have to talk about some of the exhibits ahead of time before we start the trial, then that’s fine.”
They all agreed to set a conference Sept. 9.
McGlynn said he assumed evidence and witnesses would be tendered with a stipulation that, “I can read somebody’s deposition and that’s the testimony in this case.”
He asked if they wanted opening statements and plaintiff counsel Andrew Lothson of Chicago said, “If we did, it would be short.”
He said it might be more of an outline and McGlynn said he heard that before.
Maag said he’d like opening statements.
“I think they’re important for laying out what the parties intend to prove or disprove,” Maag said.
Wells said he leaned against it and as he explained he changed the name of the event.
“The evidentiary hearing is not going to be the sum total of all the proof that’s going to be considered," Wells said.
McGlynn asked if they wanted closing arguments and Maag said they’re important.
“We’ve got to tell the court what we think we’ve proved and the relief we’re asking," Maag said.
Plaintiff counsel Matthew Rowen of Virginia said closing in the form of proposed findings of fact and conclusions of law made the most sense.
Plaintiff counsel David Sigale of Lombard concurred.
McGlynn said he’d think it through.
“Once we finish up in the courtroom you will want to keep the proofs open for another 30 days or 45 days,” he said.
He said he didn’t envision keeping it open, “so people can offer more evidence based upon how the trial played out.”
Lothson said, “When we’re talking about briefing the historical tradition aspect of the case, for example, there may be submission of papers. Documents would be provided to your honor in accordance with those filings.”
McGlynn asked how many witnesses overall and Lothson said that would be the next discussion with the state.
He said his vision was they wouldn’t call plaintiffs who gave depositions.
McGlynn closed the conference by saying, “I learned in my old days at the Fifth District that there is a lot of value to oral argument particularly when you have very good lawyers that know what they’re doing.”
He commended them for helping him fast track the case, “so that we can get a final judgment once and for all and then to the appellate courts.”