New Michigan Supreme Court Orders: What Lawyers Should Expect During the COVID-19 Pandemic

Episode Notes

Transcript

State Bar of Michigan: On Balance Podcast

New Michigan Supreme Court Orders: What Lawyers Should Expect During the COVID-19 Pandemic

03/25/2020

 

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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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Tish Vincent: Hello and welcome to another edition of the State Bar of Michigan’s On Balance Podcast on Legal Talk Network. I am Tish Vincent.

 

JoAnn Hathaway: And I am JoAnn Hathaway. As we begin our programming today we would like to share some important information with you.

 

The State Bar of Michigan has expanded its website to bring up-do-date information and resources pertaining to the pandemic and its effect on the membership.

 

We encourage everyone to visit our website for daily updates and information at www.michbar.org. A prominent link is available on the Bar’s homepage to direct you to these resources.

 

We also encourage you to follow us on our social media outlets for the latest available information from the State Bar of Michigan.

 

Tish Vincent: We are very pleased to have Chief Justice Bridget McCormack from the Michigan Supreme Court as our guest today.

 

We will be talking about recent developments at the Michigan Supreme Court.

 

JoAnn Hathaway: So Justice McCormack, would you share some information about yourself with our listeners.

 

Chief Justice Bridget McCormack: Absolutely. Thank you all for having me on the podcast. I am the Chief Justice on the Michigan Supreme Court. I have been serving on the court since I was elected in 2012 and it has been my honor to work with a wonderful group of colleagues in our decision making function as well as our incredibly important administrative oversight function where we provide guidance and direction to the courts throughout the State of Michigan and it’s wonderful to join both of you today.

 

Tish Vincent: Thank you. Our first question, as this crisis has unfolded, the court has issued two orders now addressing how trial courts should be operating. Most recently an administrative order closed all trial courts in the state to all activity except essential functions. That’s a challenge in Michigan given the decentralized system of our courts. Could you walk us through the process of making this decision on the court’s end?

 

Chief Justice Bridget McCormack: Absolutely. And thank you for the attention to this important issue. The court issued one order on Sunday, March 15 and another order on Wednesday, March 18, and those followed recommendations to courts that we sent out the week before.

 

As I know you both know the courts of the state are decentralized and the Constitution charges the Michigan Supreme Court with oversight of the courts of the state and that means that the seven justices work to provide administrative support and direction to courts throughout the state, and in times of crisis like this one that means we have to figure out how it is that we can issue guidance, direction and even orders to the trial courts about how to do business.

 

So last weekend as information was coming in quickly about the public health crisis we were all facing, my colleagues and I worked around the clock to issue an order to trial courts about the powers they have to get business done in this difficult time. And then a few days later it became clear that we needed to issue an order so there was uniformity throughout the state. And so we spent most of yesterday coming up with the specific language about emergency order, but of course the top lines are we directed trial courts to make sure no more than 10 people were in any courtroom or courthouse space at any given time and to limit their functions to only the essential ones that trial courts must continue to do to protect public safety.

 

JoAnn Hathaway: Thank you.

 

Tish Vincent: Thank you.

 

JoAnn Hathaway: Do you have advice to Michigan’s lawyers at this stage of the pandemic response?

 

Chief Justice Bridget McCormack: Well, I think one piece of advice is to stay in touch with your State Bar. The Michigan Supreme Court, my colleagues and I very much appreciate the work the State Bar is doing to keep the public and the lawyers of the state informed about the latest updates and the important role the State Bar plays in providing advice to my colleagues and I and making sure that we hear and respond to the concerns of the legal profession.

 

The Bar is also a partner for us to communicate to attorneys, so we would encourage the lawyers of the state to stay in close touch with the State Bar and we are grateful to the State Bar.

 

(00:05:04)

 

And I guess I would also advise lawyers who have resisted becoming technologically proficient to take this time to break through those hurdles, learn how to work remotely, learn how to meet with clients over Zoom and other means. The court’s Judicial Education and Training Office is going to be providing some resources for attorneys on how to work with courts online and I would also ask lawyers to be patient with judges and court staff as they too break through some of the hurdles that they are going to have to break through and adapt to this new normal.

 

Everyone should know that at the Supreme Court Administrative Office and in our Judicial Training Office we are supporting courts as they provide more and more online technology resources to the courts of the state.

 

I also want to thank the attorneys throughout the state, especially our public defenders, who are risking their own health to make sure the rights of their clients are protected during this emergency. Judges and court staff and lawyers are really public servants and like the folks working in our hospitals and stocking our grocery shelves, they are all doing that and putting their own personal health at risk and they deserve our gratitude.

 

That was a long answer I apologize.

 

JoAnn Hathaway: Oh no, that’s an excellent answer. What are your biggest concerns right now?

 

Chief Justice Bridget McCormack: My biggest concerns are some of the conflicts between using technology like videoconferencing and how to make sure we are faithful to constitutional rights, just because we have a unique crisis that doesn’t mean we can waive the Constitution; in fact, probably the opposite is true, the constitutional guarantees become even more important during a crisis and we have to figure out how to protect the fundamental principles of our democracy while also protecting the public during this unique and unprecedented crisis.

 

I think we have smart people stepping up to the plate and everybody pitching in to figure out how to do it, but that’s one of the things I am worried about.

 

Another thing I am worried about is the backlog that will be built up in our courts as a result of the statewide shutdowns and how we will keep pace and ultimately catch up. Technology can help and courts will I think do everything they can to use that technology, but they are going to need additional resources going forward and I worry a little bit about that.

 

JoAnn Hathaway: Justice McCormack, what have you seen in the last few days that can give lawyers some encouragement?

 

Chief Justice Bridget McCormack: Well, I will say I have seen lawyers, judges and court staff using technology in ways I think because they had to that were far or less common before the last few days. And frankly, I am pleasantly surprised with the results.

 

Just for one example, I have had to — I teach a class at the University of Michigan Law School and like every other university in the state our classes have gone online, so I taught my first seminar Tuesday night using a platform that I think is similar to Zoom, which is what our courts use; our courts all have Zoom license and at U-M they use BlueJeans. And I was so heartened by the students’ response, how engaged they were, even though we were all virtually meeting, how well the class went and frankly the opportunity that I saw for people who would have been resistant to learn new tricks; some of us old dogs are reluctant to learn new tricks but now we are being forced to and I thought well, if there is a silver lining here it’s that we are going to learn a whole lot about what we can do differently and therefore better even after the public health crisis abates.

 

So that’s given me a lot of encouragement, what I am seeing from lawyers, judges and especially law students who are going to be our future lawyers, it’s exciting, that part of it.

 

Tish Vincent: It is. What do you see is a way that lawyers can help in this crisis?

 

Chief Justice Bridget McCormack: Well, lawyers are going to be strained during this crisis. Their clients are going to be under unbelievable pressure, businesses obviously, healthcare centers, think about all of the people who need lawyers and the unique crises and stresses and tensions they will be facing and lawyers therefore will be helping them through all of that and at the same time helping and being patient with and helping courts figure out how we can navigate this new normal. And lawyers sometimes have information that judges don’t about ways we can get things done to confront the unique challenges we are confronting.

 

(00:09:58)

 

And so I would encourage lawyers to use this really unprecedented moment to not be shy about their ideas. We kind of have to view this as something we are all in together and lawyers can help us with innovation and ideas that we wouldn’t come up with on our own.

 

So I think lawyers have a great role to play. And on top of that, sort of the basic human things, be kind, be patient, understand how if somebody is short or impatient with you, there is probably a stress situation that explains that. We can all do with a little extra patience and kindness right now.

 

JoAnn Hathaway: The State Bar welcomes another recent order from the court, this one about the mental health questions on the Michigan Bar Exam application. For those who haven’t heard, beginning with the February 2021 exam applicants will see a different question about mental health than they have in the past.

 

Could you explain to our listeners what those changes are and why they are so important?

 

Chief Justice Bridget McCormack: Yes. The court issued an order yesterday as well, busy day yesterday, changing the questions on the character and fitness section of the Bar Exam. Instead of the diagnosis based questions that the application used to ask, now they will only be asked if any conduct or behavior in the past five years could call into question their ability to practice law properly.

 

Applicants shouldn’t be asked, we shouldn’t be asking people, law students, soon to be lawyers, unfocused questions based on generalizations and misconceptions about mental health. Questions about past diagnosis have the unintentional effect of deterring lawyers, new lawyers, aspiring lawyers from seeking assistance.

 

We all know that law school is stressful. Frankly, undergraduate programs are also stressful. As somebody who has two kids in college right now and two who just graduated, I am very familiar with the difficult anxiety and mental health time that our young people are facing and the idea that the questions on our Bar Exam would discourage students from seeking treatment, seeking help is unacceptable.

 

So we got rid of those questions and we hope this is a contribution to destigmatizing, people getting help for mental health conditions and we hope it encourages students in law school and undergraduate to do exactly that.

 

Tish Vincent: Yes, I think that it will. I was very pleased to see this order last night. As the Director of Michigan’s Lawyers Assistance Program I have seen the chilling effect that those questions sometimes have, they certainly don’t always have, but I think this is a huge step in the right direction to help law our students and new lawyers and lawyers who have been at it for a long time to place an emphasis on their own mental health and wellbeing without a fear of having to disclose all of that when they apply for admission to the State Bar.

 

Chief Justice Bridget McCormack: I mean as you know, I mean it’s not — in my view it’s counterproductive. I mean it penalizes only the students who get help, right? I mean it’s not a great test and we want to encourage students, law students and undergraduate students to get the help they need when they need it.

 

Tish Vincent: Yes, and this gives that message that it’s most important to get the help.

 

Chief Justice Bridget McCormack: Absolutely.

 

Tish Vincent: And so I think we will see huge changes in Michigan and many other jurisdictions are changing those questions also, so that’s exciting.

 

Chief Justice Bridget McCormack: Yeah, I have lost track of the number, but I know more and more jurisdictions are making this same move. I don’t know exactly where we fall in line with those, but it was time for us to do it.

 

Tish Vincent: Yes. Well, thank you.

 

Chief Justice Bridget McCormack: You bet.

 

Tish Vincent: Well, it looks like we have come to the end of our show. We would like to thank our guest today, Chief Justice McCormack for a wonderful program.

 

JoAnn Hathaway: Justice McCormack, if our listeners would like to follow up with you, how can they reach you?

 

Chief Justice Bridget McCormack: Well, first of all, I want them to go to courts.michigan.gov to get all of the latest information about the court’s response to this public health crisis and they can also find me through that same website and my colleagues and all kinds of other resources about the Michigan Supreme Court and the courts of the state.

 

JoAnn Hathaway: Thank you Justice McCormack.

 

Chief Justice Bridget McCormack: Thank you.

 

Tish Vincent: This has been another edition of the State Bar of Michigan On Balance Podcast.

 

JoAnn Hathaway: I am JoAnne Hathaway.

 

Tish Vincent: And I am Tish Vincent. Until next time, thank you for listening.

 

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Outro: Thank you for listening to the State Bar of Michigan On Balance Podcast, brought to you by the State Bar of Michigan and produced by the broadcast professionals at Legal Talk Network.

 

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The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network or the State Bar of Michigan or their respective officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

 

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