THE THRILL OF THE GRASS

 

Shoeless Joe: Getting thrown out of baseball was like having part of me amputated. I've heard that old men wake up and scratch itchy legs that have been dust for over fifty years. That was me. I'd wake up at night with the smell of the ballpark in my nose, the cool of the grass on my feet... The thrill of the grass.

W.P. Kinsella-Shoeless Joe

Tuesday, September 7, 2021.  Historically one of the 2 days each year, the other being the first Monday in January, when the switch gets turned on the business world, the various school districts and the legal system.

Things are a bit different for me this year.  My kids have graduated from school.  But, for nearly 40 years, I would have spent this week at various motion calls, settlement conferences, depositions, case evaluations, facilitations and other such fun and frolic outside my office.  None of that this year. Granted, I did retire from my active litigation practice earlier this year, but that was, in no small part, due to the change in the definition of “active”, in the continuing COVID 19 era.  True, I did a facilitation, and sat as a Case Evaluator last week, but never left the comfort of my home office, a mere five steps from the temptations of my kitchen. Things went well. Not very challenging, not very exciting, but fine.  And, I was able to catch up on both American and European football, from the close-captioned enabled TV in the corner of the room.

Convenient?  You bet.  But, long ago I learned that the legal system of the state of Michigan was neither ordered for, or concerned with the convenience of attorney Michael J. Butler.  For the most part, that has been a good thing. 

To the extent that I have become an effective advocate at all (opinions differ), it has been soley through experience gained during years of adversarial proceedings, conducted in open court/deposition rooms, in person, in the physical presence of judges and other lawyers. 

I entered law school with an intense fear of public speaking.  The phobia sprang, I think, from a rather unfortunate incident in 6^th grade, when during an English class presentation, my partner and I, for reasons still unknown, became convulsed with uncontrollable laughter.  While our classmates were amused, our teacher, one of the less forgiving Sisters of the Order of the Institute of the Blessed Virgin Mary, was not. 

The fear followed me for many of my school years.

Coupled with the entirely normal fear of making a public fool of oneself, I was a perfect candidate for membership in the guild which prided itself on adversarial advocacy.

But, you get thrown in the deep end of the pool, sometimes chained to an anvil, often enough, you learn to think on your feet, react, respond and innovate on the fly.   You prepare better, you think more clearly, you anticipate the arguments of the other side, you look you adversary (sometimes the judge) in the eye.   You gain the skill to, paraphrasing Churchill “tell someone to go to hell in such a way that they look forward to the trip”.  You watch witnesses, and learn what pushes their buttons, and you push them when necessary.

I don’t think you learn this from behind your computer screen, sitting at your kitchen table, the family dog at your feet, dressed in cargo shorts and sandals (you, not the dog), with the judge a tile, no bigger than your own, on the Zoom display.

At facilitation, it is harder to make headway with an adjuster when said adjuster is in the office in Atlanta, simultaneously monitoring this case, and 4 others, by phone from their own home office.

As you may have guessed, I am a firm believer in in-person proceedings.  You don’t develop relationships or lawyering skill, in a Zoom waiting room.  But, you save some drive time, and you can update your social media brand without guilt or interruption.

Sadly,I am sure that remote proceedings are here to stay.  Attorneys and judges love Zoom.  I get the convenience issue.  I well remember days like the winter Monday morning of 7 or so years ago, when I was scheduled to be in Macomb County at 8:30am, Genesee County at 10:30am, and Wayne County Case Evaluation at 2pm.  An ice storm extended my 50 minute trip to Macomb to 3 hours.  I never made it to Genesee,but did get to Wayne in time.  During the winter of 2021, I would have made all 3 hearings, on time, without leaving the comfort of my family room, with my fireplace (assuming it was working that day) blazing in the background.  Hard to find fault with an arrangement that allowed me to serve as a neutral case evaluator from my son’s St. Louis, MO home, with my granddaughters close by.

But, remote proceedings do not make us better lawyers. I am sorry to admit, but we all take the path of least resistance if offered.

Take for instance, case evaluation. Back when the Tribunal switched to the on line filing of summaries, it seemed a great thing.  Great for the tribunal, as acceptance of a filing was conditioned on payment of fees, and penalties.  Great for the evaluators, as we avoided a trip downtown to pick up an unsorted pile of summaries. Summaries of any length (my record is 1100 pages) could be filed 24/7. But, the filing of “ultra-late” summaries increased radically.  20-25% of summaries (which by court rule are due 2 weeks before the evaluation)  are filed within 24 hours of the hearing.  My favorite was the plaintiff premises liability summary, of some 250 pages, filed at 12:50am, for a 9am hearing.  Plaintiff, who had missed a few issues, asked for a quarter million dollars.

The extra time afforded lawyers by remote proceedings has not decreased the number of ultra-late summaries, nor increased the quality of summaries overall.

The convenience of remote proceedings on the court’s side, has yielded some unfortunate results, which we may be stuck with.  I get it.  Early on during the shutdown, when there was no mechanism for even remote hearings, no motions were not getting decided.  Wayne County Circuit Court then changed the motion praecipe to provide that the default setting was that motions would be decided on the pleadings, without oral argument, unless the court so requested.

Some 18 months later, and the policy persists.  At a bench/bar on September 13, 2021, I learned that some judges are denying requests for oral argument even on Summary Disposition motions, and some of those motions are being decided with a check mark on the praecipe, or by written, sometimes handwritten on the praecipe.

Though most lawyers don’t see the inside of a courtroom, Wayne County Circuit continues to require that counsel file a hard copy of efiled motions and responses with the judge, despite a Michigan Court Rule to the contrary.  Apparently technology has not caught up so as to allow a judge to digitally receive the digitally filed motions and  responses on his assigned cases.  And when there is no hearing, there is really no specified time for a motion to be resolved.  Undecided motions linger.

For some reason, the efile system in Wayne County does not allow litigants, even for a fee, to download pleadings from the court’s on line docket.  Huge money-making opportunity lost.

The technology to solve these problems does exist in other courts in this state.

I do miss the old days, and I don’t want adversarial proceedings reduced to some species of low level video game. 

I admit that at the bench/bar today, there wasn’t much love expressed for the in person experience.  But, I do not totally despair that those days won’t return.  Here’s why.

In July of 2021, Wayne County began to try jury cases again.  2 juries are to be picked per week. That  doesn’t sound like a lot for the busiest circuit in the state, with 17 civil judges. And I do not diminish the effort that went into organizing the logistics of jury selection and trial under current conditions.

But, how many civil cases were tried to jury verdict in Wayne County, pre-COVID?  The most recent figures I could find on the Court’s website were from 2018.  Total number of civil cases tried to verdict:  38. 2 juries trials a week, would result in nearly 3 times the number of jury trials as occurred in 2018.

Maybe some day in the not too distant future, some enterprising bean counter may look at a court that provides each civil judge with a courtroom, a jury room, offices, conference rooms and such like facilities, and wonder if some space in the CAYMC might be freed up for other uses by a consolidation of current the current court arrangement. 

At that time, people might again recognize the virtues of in person proceedings.  Hope so.

Though this is not really necessary, I want to show how up to date I am with pop culture.  So, I close a short quote from the Apple+ show, Ted Lasso, wherein the retired player Roy Kent talks about the game from his cozy seat as a soccer pundit. It sums up my feelings much more succinctly than I can.

Stelling: Bloody cold out there today. I bet you don't miss the cold, hey, Roy?

Roy:  I miss all of it.