State Bar of Michigan NEXT Conference 2018: Presenting Summary Disposition Motions

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Transcript

State Bar of Michigan: On Balance Podcast

State Bar of Michigan NEXT Conference 2018: Presenting Summary Disposition Motions

10/29/2018

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Intro: Welcome to State Bar of Michigan’s On Balance Podcast, where we talk about practice management and lawyer wellness for a thriving law practice, with your hosts JoAnn Hathaway and Tish Vincent, here on Legal Talk Network.

Take it away ladies.

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Samantha Meinke: Hello and welcome to another edition of the State Bar of Michigan’s On Balance Podcast on the Legal Talk Network. I am Samantha Meinke sitting in today for JoAnn Hathaway and Tish Vincent and I am joined today by my coworker, Rob Mathis.

Robert Mathis: Good morning.

Samantha Meinke: Thanks for joining me Rob. With me today as well as Rob are three of our distinguished judges from the west side of Michigan, Judge Christopher Yates, Judge Jon Hulsing and Judge Timothy Hicks. Welcome everybody. 

Judge Jon Hulsing: Good morning.

Judge Christopher Yates: Good morning Sam. Thanks.

Samantha Meinke: If I could, could I have you guys kind of go down the line and introduce yourselves a little bit better than that and tell us which court you are with and what you do.

Judge Christopher Yates: Sure. I am Chris Yates. I am Kent County Circuit Judge right here in Grand Rapids and I run the Specialized Business Docket. I have been doing that for about six-and-a-half years and I have been a judge for a little more than 10 years.

Judge Jon Hulsing: I am Jon Hulsing. I am an Ottawa County Circuit Court Judge. I have been on the bench for 12 years. I am in the Criminal and Civil Division. Beginning in 2019 I will be the Circuit Court Representative to the Judicial Tenure Commission, so I will be able to review Judge Hicks’ behavior while he is on the bench, in case he engages in misconduct.

Judge Timothy Hicks: And I am Tim Hicks from Muskegon and there is some potential for that, because I have served 22 years already and I am in my last term. I spent a few years teaching and coaching in a couple of rural school districts and I still bring some of those lessons in to the courtroom.

I should say this, it’s great to be with these other two folks and all three of us have been very active in professional associations such as the Michigan Judicial Institute and the Michigan Judges Association. So that’s really a great source of knowledge for all of us.

Samantha Meinke: Fantastic. I can feel the camaraderie in here as we get started. I know you guys were part of the educational track that we have going on here at NEXT Conference in Grand Rapids, the Judicial Perspectives track. And you guys talked today about top tips for presenting your summary disposition motion.

Rob, do you have a question for them to kick us off about that?

Robert Mathis: So what are some tips that you would like to provide?

Judge Timothy Hicks: Be prepared.

Samantha Meinke: How so?

Judge Timothy Hicks: Know the court rules, know your case, pay attention to the details. These motions are really important and you would be surprised at how many people founder on just elemental mistakes. Like they say something is attached and it isn’t. They say the pictures are attached and they aren’t. They deliver their stuff too late for us to really effectively use it.

These are big motions with big briefs, and I know most of us, and certainly all three of us work hard so that we can, when possible, give you decision on the day of your hearing and when your brief comes in the day before or the day of, we can’t do that, and we don’t appreciate that, so be prepared.

Judge Jon Hulsing: I would obviously agree with what Judge Hicks has to say and if I may add, when you submit your written materials, make sure that the materials are legible.

For example, if it’s a contract issue and your client has submitted to you the 50^th copy of a 50^th copy in a 6 point print, it’s probably going to be illegible, so make sure that the actual document, which is the heart of the case, is actually decipherable to the decision maker.

Again, make sure that your arguments are presented in a cogent way and if you are arguing a C8 motion, don’t start talking about C10 issue, such as what the facts are and those types of things. So keep it nice and tight, know what your arguments are and make sure that your legal arguments follow what your legal position is. 

Judge Christopher Yates: I would like to add a thought about oral arguments specifically, be flexible. Occasionally I will have people show up for oral argument with a PowerPoint presentation, which is about the most ineffective way to present an argument.

We come to the bench well-prepared, we have lots of questions, and the best thing that an attorney can do is listen and answer those questions, because if you want to move the ball at oral argument, the best way to do it is to answer the judge’s questions.

Samantha Meinke: And attend the Judicial Perspectives track at NEXT conference to learn all these tips of course, right? No, I am kidding. 

Robert Mathis: That would be helpful.

Judge Christopher Yates: And we shared all our secrets this time, so there is nothing left.

Judge Timothy Hicks: The challenge is sometimes we are preaching to the choir. Some of these folks are here to enhance their skills and they are already doing a lot of the right stuff; the people we need to reach are some of the ones who aren’t here.

(00:04:52)

Judge Jon Hulsing: But it’s helpful, some of the people who did attend ask really good questions, such as if the judge is asking me questions or is not asking me questions, what does that mean? The judge is looking at me or is not looking at me, what does that mean? And try not to worry about those types of things. The decision maker is going to do what the decision maker does.

Similarly, trying to figure out what a jury is thinking is virtually impossible until the decision comes back. So don’t read anything more into what the judge is asking, aside from the judge wants to know what your position is, answer the questions so that the judge has the information before him or her to make the appropriate decision. Don’t get sidetracked on these other irrelevant issues. I know they can cause you to lose concentration, but again, keep to what your mission is, is one of persuasion.

Judge Christopher Yates: And if I could just add one more thought to that as well, we talked about this at length in our discussion, but avoid exchanges of insults with opposing counsel. There is nothing less effective at an oral argument than to start throwing barbs at each other, to accuse the other side of misciting a case or to accuse the other side of holding back a brief.

Judge Hicks I know has particularly strong feelings about this, but I think we all really detest that.

Robert Mathis: So you are encouraging civility in the courtroom, is that right?

Judge Christopher Yates: Yes.

Judge Timothy Hicks: I like to refer people back to the Golden Rule really. I don’t mean to be hokey about it, but treat the other side like you want to be treated. I don’t appreciate it. It doesn’t help your client when you personalize everything. You castigate the other team as some kind of a criminal or something like that, or if you see us a lot, if you always ask for sanctions, we are going to tune you out, and that’s not the way you want to be treated. And just because somebody sues your client doesn’t mean that person is somehow a fraud character, people have claims. 

Judge Jon Hulsing: Absolutely. There is nothing that I like more than a really tough legal battle in the courtroom, something that is engaging and that really requires some thought and strong advocacy, and I won’t back down to those decisions and none of us will, but that legal fight is not a personal fight between the attorneys. While I thrive on making decisions that may cause one side or the other some angst, what causes me angst is having to referee the personal barbs between the attorneys. It’s not enjoyable, and in fact, it makes me uncomfortable, because this is not how the court is supposed to be.

Judge Timothy Hicks: Let’s talk about how it’s supposed to be. Many years ago before I became a judge, I had a personal injury case up in Ludington, and I was the plaintiff, representative of the plaintiff, and the guy on the other side was from one of the big Grand Rapids firms. And we went up, we argued a motion, I lost the motion and he said, let’s go out for lunch. And he said the guy who wins the motion buys lunch, and that became the basis of a great friendship that continues even until today. And as the case went on we continued that relationship. That’s really important.

For example, if you are coming to court for a motion argument on Monday and if you see a last minute case on Thursday, call the other person, let him know or let her know, say hey, look, I don’t have time to do a brief, but I am going to be citing this case, or I have got some new evidence, I am going to email it to you right now, so you have it. It can work. You can do it the way you are supposed to do it if you make the commitment.

And remember this, even though we may not see you a lot, you build a reputation with the court and with the judges, even with just one or two cases, you build a reputation as being a whiner or somebody who is on time or somebody who calls my assistant for reference to the court rules. So — oh yeah, they call my assistant and they ask, what about this, what does the rule say about this, when is my brief due.

Samantha Meinke: Can I ask really quickly, are the court rules available online or something to help these attorneys not call your assistant in the future?

Judge Timothy Hicks: They are.

Samantha Meinke: So they can find them on the Muskegon County website, for instance?

Judge Timothy Hicks: Well, they probably will find them on our website, but they are all over the place.

Judge Christopher Yates: Right, the court rules are readily available on the Michigan Supreme Court website.

Samantha Meinke: Gotcha.

Judge Christopher Yates: And I can amplify the point that Judge Hicks just made, because two days ago somebody called one of my scheduling assistants and asked when the time to file appeal was going to run out. She is not an attorney, that’s not fair to ask her. 

Robert Mathis: Well, most attorneys would have their court rules within their briefcase, right, you would think so.

So I am curious, I mean just like roughly, what percentage of attorneys could have some improvement in this realm?

Judge Jon Hulsing: Well, what percentages of them are doing the job the way it should be done maybe; on the summary disposition motions, 40% is my guess.

Samantha Meinke: 40%, wow.

Judge Jon Hulsing: What do you think?

Judge Timothy Hicks: Yeah, about that, about that.

(00:09:50)

Judge Christopher Yates: In the Business Docket what I find is that the work is always thorough; my only concern is sometimes it’s too thorough, and so if you handle complex business cases as opposed to what I used to do when I was on the General Civil Criminal Docket, back in the old days when I had General Civil Criminal cases, I would often complain that the briefs were too short, that people had missed controlling authority.

In the Business Docket it’s exactly the opposite. I mean people are inclined to submit a 50 or 60 page brief where 15 pages will do just fine or there are people we refer to as the king of string, who will give you 11 string cites when there is a published Michigan Court of Appeals case right on point.

So I think our concerns are different in terms of thoroughness and level of preparation.

Judge Jon Hulsing: I feel a little guilty for giving you such a harsh number. I was a lawyer for 13 years before I came to the bench and I am mindful of the challenges out there, demanding clients, sometimes clients who want you to assert frivolous claims and things like that, I think we try to work with you, and I have pretty high standards.

So I see some briefs that are technically okay, but people have emphasized just about everything, I mean just about every word is bolded. It’s like that college textbook you bought where they have highlighted everything in the book. It’s less than helpful.

Judge Christopher Yates: That’s right, there is nothing funnier than getting a brief with sentences bolded and underlined as if we will somehow miss them otherwise.

Judge Timothy Hicks: What happens in my court occasionally, I dust off this saying that’s attributed at least to Cicero, to the Roman Statesman Cicero and maybe to others, where he said to his friend, I would have written you a shorter letter if I had more time, and some of the briefs we see are kind of like that. They are just throwing everything in there in kind of a haphazard fashion.

Judge Jon Hulsing: The haphazard is kind of frustrating as well, because you want to have the reader be able to pick up the brief and understand what you are presenting and when standards such as C8 and C10 are mixed and matched and there is no cohesive history or factual pattern that is articulated in the writing that makes it difficult, don’t get me wrong, writing is hard, but sometimes I wonder if adequate review of the documents is taking place, making sure that your sites are accurate.

We do check those and I have looked up many of those citations, fortunately most of the vast majority are correct, but every once in a while they are not, so then I have to find out this controlling case, what the correct citation is, which again costs time. It’s not taking away from the believability of the brief, because people make mistakes, that’s not a problem, but just make sure things are nice and tight so that the decision maker has again an accurate understanding of what you are trying to present.

Judge Christopher Yates: One of the formats that I like and I am seeing more of this, much to my appreciation, is a one or two page introduction that walks me through the whole argument start to finish at the very beginning of the brief. So I don’t have to pick it up and just plow through 25 or 30 or 35 pages to get to the meat of the argument.

Samantha Meinke: Like an executive summary at the outset?

Judge Christopher Yates: Yes, yeah. It’s often just titled introduction and the court rules don’t specifically talk about that kind of formatting, but I really appreciate that.

Judge Timothy Hicks: One thing we haven’t specifically mentioned yet is the importance of taking a little bit of time to learn about the court and the judge; does he ask a lot of questions, not ask a lot of questions, does he have a lot of experience in this kind of law.

The joke we told a little while ago was drawing on my school teacher days, I am a big fan of like charts and things like that. I even do opinions in chart form sometime. And so in the middle of an oral argument in a summary disposition motion, I will go to the side and start scribbling on my whiteboard, just to illustrate different points, and sometimes I am groping for points of agreement where I can say okay, we don’t have to make this decision.

And so if you are unaccustomed to that or you don’t know, you are going to panic when Hicks gets off the bench and heads over to his whiteboard and start scribbling. But we all have reputations for that and you can find that out.

The other thing is for young lawyers, it gives you a great reason to network. There is nothing that is more flattering than to call a more experienced attorney in your hometown and say hey, I have to go to Grand Haven, what do you know about Judge Hulsing, and it gives you a good connection with that maybe experienced lawyer that you can use for other purposes.

Samantha Meinke: It’s a really good point and maybe join your local Bar Association so that you can make those connections and get comfortable making those phone calls.

Judge Christopher Yates: Oh, thank you for making that point. I am just coming off being the President of the Grand Rapids Bar Association and I cannot tell you how valuable it is to be a member of and active in your local Bar Association.

Robert Mathis: Well, I know we are talking about attorneys, but I am curious how many pro se motions for summary disposition do you get?

Judge Jon Hulsing: In the family arena quite a few, maybe not labeled as such, but certainly in the family division there are a ton of people who represent themselves. So while that can be problematic, sometimes the judge has a lot of control over the case too and those cases can be resolved quickly, but sometimes not so quick.

But in the criminal arena we really don’t see any pro ses, and in the non-domestic civil cases rarely do I see any pro se litigants filing motions. Sometimes when they do, sometimes they are pretty good though, ironically.

(00:15:04)

Judge Christopher Yates: I am going to ask you a question precisely Rob, you said how many pro se litigants file motions for summary disposition, like Judge Hulsing said, not too many, but I think probably four times a year I am seeing pro se litigants defending these motions. And sometimes they are frivolous, personal injury claims, more recently lately we are seeing people who are defending like student loan debt claims and things like that. So we are seeing people defending them more often than they are filing them.

Samantha Meinke: I think we are running out of time for our podcast this morning gentlemen. Can I get a quick takeaway from each of you before we sign off? So one most important thing you want people to take away from this?

Judge Christopher Yates: Listen to the questions asked at oral argument and answer them directly.

Judge Jon Hulsing: Make sure that your written materials, supplemental written materials are organized and legible.

Judge Timothy Hicks: Be prepared, I already said that, and be honest. When you come in front of us, concede what you have to concede, and usually there is something you need to concede and we respect that and that enhances the other things you are saying.

Samantha Meinke: The listeners of this podcast really like to look for the folks they hear on it online, is there a way people can find you online on Twitter or LinkedIn in any way?

Judge Christopher Yates: The easiest way to find me is on Twitter, @CPY87 and there is no indication on my Twitter account that I am a judge, but if you follow me you will pick up on that.

Samantha Meinke: I follow you so I know that’s true.

Judge Jon Hulsing: LinkedIn for myself, Jon Hulsing.

Samantha Meinke: Jon Hulsing on LinkedIn?

Judge Jon Hulsing: Right.

Judge Timothy Hicks: LinkedIn for Tim Hicks and the Muskegon County website has other contact information.

Samantha Meinke: Fantastic. Well, thank you so much for your time today.

Judge Jon Hulsing: Thank you.

Judge Timothy Hicks: Thank you.

Judge Christopher Yates: Thank you. Our pleasure.

Samantha Meinke: Thank you all for joining us here on the Legal Talk Network for another edition of the On Balance Podcast from the State Bar of Michigan. I am Samantha Meinke joined by Rob Mathis. Thanks for joining us Rob.

Robert Mathis: My pleasure.

Samantha Meinke: Standing in for JoAnn Hathaway and Tish Vincent. You can find the podcast in an Apple Podcast App or online on the Legal Talk Network’s website.

Until next time, thank you for listening.

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