LEX FUGIT

MOTION PRACTICE-JUDGE A

In a prior post, Pretrial Pratfalls, I related some of my status conference experiences before various judges.  I did not name the judges.  However, Judge A in that post, is the Judge A in this one.  Judge A served on the Wayne County Circuit Court bench in Detroit.

Friday 8:30am motion call began at the same time as 8:30am status and settlement conference call began during the week, that is 9:15am.

Judge A did read the motions.  But that did not mean that the colloquy between judge and attorneys had anything to do with the issues raised in the pleadings.  Attorney interruptus was the norm.  And, as far as decision, you never quite knew when the judge was done.  Even though you may have thought so.  You'd be walking away from the bench, foolishly thinking that the motion had been decided, when you'd be called back.  Something else had occurred to the judge.  Back you'd go.  Again, you'd think you were finished, and start to leave, only to be called back again.  And so on.  

I eventually developed a "Judge A Rule" for motions.  When called back before the judge, always take one step less than the number of steps you took away the prior time you thought you were done with the motion.  Eventually you would find yourself outside the courtroom.

But my favorite Judge A motion story did not involve me. I was in Judge A's courtroom for Friday motion call.  A motion for default judgment on a mortgage foreclosure was called.  Fairly routine matter, usually.  Mortgage company attorneys usually had several such motions every week.  Getting the judgment is usually very routine.  Paperwork in order, defendant in default, doesn't answer the motion, doesn't show for the hearing, and the boilerplate judgment is signed, and the attorney is on his way to the next courtroom.

Not this time.  For this motion before Judge A, the defendant was in default, and did not answer the motion.  But....she did show for the hearing and came to the podium when the motion was called.  To the mortgage attorney's mild surprise.  He related the facts of non-payment, complaint properly served, default properly entered, motion properly filed and so forth.

The defendant made some sort of argument asking that judgment should not enter.  I don't remember the precise argument, but it was not one, that if proven, would be a legal defense to the foreclosure.  And, I do remember that she did not have a great reason for not answering the complaint.  She had not filed a motion to set aside the default.

Judge A  always believed that if you made life difficult enough for the parties, they would settle.  There were times that parties were told to stay in the courtroom until they settled.  This could go on all day, or over more than one day. l even heard of a case where the parties had to stay in the courtroom, even though Judge A was not present.

APHORISMS FOR AGING ATTORNEYS-5

"Don't irk the clerk."  Judicial clerk to now retired Judge Robert Ransom, Genesee County Circuit Court.  I don't know if I ever learned this man's name, but I think he later became a lawyer, working in the Flint area.  As sound and pithy a piece of advice for the practicing attorney as I have ever heard.

"You can't make this stuff up."  Attorney John Cothorn.  Certainly John is not the first to employ the phrase, but when he used it when we had lunch together recently, I realized that it described perfectly the kind of stories I am looking to publish on LexFugit.com.

"Everything I (my family, friends, acquaintances, total strangers or pets) do, think, see, hear or eat need not be proclaimed on the internet."  Mike Butler's personal social media policy.

GUEST POSTER-FRED LAUCK

 

Fred Lauck is a fellow Catholic Central Alum, a trial lawyer, and a wonderful storyteller.  He has always stood up for the little guy and for the Rule of Law.  He has written 3 books, which are, all of them, wonderful reading.  Here is an excerpt from the one I am reading now:

IMPORTING BRITISH ERUDITION

Six months before I represented Dewayne McKenzie in an Assault with Intent to Murder trial, I was in England with Irish John Conlon at a joint seminar for American Trial Lawyers and English Barristers. Talk about smooth, erudite use of language. I saw an English Barrister defend an accused rapist at the “Old Bailey” in London. The defense was “consensual” sex. When the erudite English barrister cross-examined the alleged rape victim, he suggested consensual sex in his well crafted question...

“Madam, let me suggest to you that you extended to my client, shall we say, the maximum in cordiality on a voluntary basis.” Wow, did I love that phrasing and that use of the language!!!… sexual intercourse, “the maximum in cordiality.” The English Barrister was on the mark with that “maximum cordiality” description.

I brought that erudite phrasing all the way across the Atlantic from London’s Old Bailey to Detroit Recorder’s Court, and used it to cross-examine the hooker who was on pimp Fred Baker’s arm at the time Baker was shot. Right up front, I attacked her credibility by showing that she was a prostitute. Using my best barrister-inspired phrasing to a “T,” I opened with the question…

“Madam, let me suggest to you that yours is, shall we say, the oldest profession known to mankind”??? Without pausing, her immediate response… “No, your's is, Mr Lauck. Lawyers have been screwing people a lot longer than hookers.”

PRETRIAL PRATFALLS

Yesterday, as I drove to White Cloud, Michigan for a status conference in Newaygo County Circuit court, I had pa-lenty of time to recall  a few of the more interesting status conference/pretrial experiences of my career.

There was a time when Wayne County Circuit judges did not have individual dockets.  That time is hard for even me to remember.  Judges went to individual dockets in "waves" of 8 judges at a time.  Initially, the system provided for in person status conferences on all cases.  More about that later in this piece.  After a comparatively short time, the in person  conference was replaced by the routine entry of a scheduling order sent to the parties.  The one exception to that rule involved a particular judge, hereinafter referred to as Judge A, who insisted on the in person status conference.

These conferences were set for 8:30am, but seldom if ever started at that time.  Litigants would mill about the courtroom and outside hallway until 9:15 or so, when the court officer would come out into the hall and require all persons having a case with Judge A to come into the courtroom.  The courtroom door was thereafter closed.  About 10 minutes later, the first case would be called, and those attorneys would be ushered into the judge's chambers.

Litigants finally figured out what was happening.  The judge's courtroom was on the river side of the City County Building, but the special judge's elevator was located on the Larned Street side of the building.  An arriving "riverside" judge would have to cross the public hallway in full view of the great unwashed (attorneys) to get to the private entrance to chambers.  Therefore, everyone would know when the judge reported for work.  Not great for Judge A's rep if attorneys saw the judge come in 45 minutes after the time appointed for the hearing.  So, let no one see the judge arrive and the fiction of the judge's prompt arrival was preserved.

Depending on Judge A's mood, at the conference you had to know everything about your case, or nothing.  In the former case, you had better know such things as your client's date of birth and weight without having to consult the file.  I went in prepared, therefore, even telling the opposition that I could provide my client's favorite color (it was always cerulean, by the way) if asked.

GUEST POSTER-LEE ESTES

Here is a story from attorney Lee Estes.  Lee is retired, and all of my cases with him was when I was a plaintiff lawyer and Lee appeared for the defense.  A great lawyer and a true gentleman.  This story gives a great insight into Friday motion day in Wayne County.

I was in Wayne Circuit in front of Claudia Morcom.

While waiting for my motion to be called another matter was being heard. There was one plaintiff attorney, Ron Gilbert and three defense lawyers. I think one of the defense guys was Charlie McGorisk from Plunkett & Cooney but I don't remember the other two. It was a defense motion asking the court for an order requiring Gilbert to show up on time for depositions. All the defense lawyers complained loudly about Gilbert wasting their time by showing up 30 - 60 minutes late for every deposition. Everyone was yelling until Morcom orderered all of them out of her court room.

"Go out in the hall and settle this yourselves." All participants left and the door closed.

The tone of the court room returned to normal. Minutes passed. Suddenly the door swung open with a loud crash getting everyone's attention. Ron Gilbert stood in the doorway holding it open with one hand. His hair, normally slicked down, was standing straight up in the middle of his head. After a dramatic pause Gilbert yelled at the judge, "Your honor, they hit me!"

Judge Morcom pounded away with her gavel yelling "Get Out, Get Out!" Gilbert withdrew and the four of them were not seen again that day."

COIN OF THE REALM

Back in the days before email, with its instant responses of "LOL", "WTF", and emojis of various sorts, all written communication was by means of a "letter".  Many of us still remember them.  A more elegant means of expression.  Over the years I have retained, and framed a few of the more memorable pieces of correspondence I have received.  I have yet to hang an email in my office, no matter how funny the meme.

The letter which is the subject of this post was one I sent.  I was nearing trial on a Wayne County case involving a bus accident.  My client was a passenger on a SEMTA/SMART bus.  The bus driver caused an accident in which my guy was injured.  He also happened to be a Canadian citizen, from Windsor, without a car of his own.  My lawsuit on his behalf included both a claim for No-Fault benefits and one for auto negligence.

Back then the Canadian dollar was worth about 70 cents American.  

In the course of trial prep, defense counsel and I exchanged a fair number of letters about such things like jury instructions, admission of medical records, witnesses and so forth.  In one letter, my opponent indicated that if my client prevailed, which he greatly doubted, any monetary award should be in Canadian, rather than American, dollars.  While I liked my opponent personally, I thought that was one of the stupidest things I had ever heard.  And though many years have passed since, it remains at the top of inane suggestions.

I read the letter.  I dictated and sent the following response:  "With regard to your position that any verdict in this case be rendered in Canadian dollars, I cannot concur.  However, I will agree that any award of damages be in Pounds Sterling."  The end.

A couple of days later I got a phone call.  I remember it well.  My opponent was genuinely puzzled, and he could not understand what I meant.  Try as I might, I could not persuade him that my letter was a joke in response to his ridiculous suggestion.  I could just see him reading the letter, furrowing his brow and shaking his head.

In fact, he filed a motion a motion in limine advancing the argument.  He lost the motion....and the trial.

I don't think defense counsel framed that letter.

LOL.