REMEMBRANCE OF CHIEF JUDGES PAST

As with every post-election new year, changes have come to the Michigan court system.  In Wayne County Circuit Court, the end of 2022 saw 5 judges leave the Circuit Bench.  Judges David Groner, James Chylinski, John Murphy, Thomas Hathaway, and Chief Judge Timothy Kenny have retired.  There are new circuit judges, a new chief judge, and judges have moved among the court's three divisions.

The chief judge does not carry an individual trial docket. The duties of taking care of by far the largest court in the state keep the chief busy enough.  

Fortunately, during my litigating career, I did not need to visit the chief judge's 7th floor courtroom too often.  Such a visit usually resulted from a bigger than usual problem with a case.

Way back, visits to the chief judge's courtroom were much more common.  There were 2 major reasons:  trial adjournments and mediation (now case evaluation) responses. 

First, adjournments.  Individual dockets for Wayne County Circuit judges are a comparatively recent development.  Until sometime in the mid-1990s, there was virtually no chance that the judge whose name was stamped on your freshly filed civil summons and complaint could be your eventual trial judge.  The judge assigned at the time of filing would hear motions on issues that would come up during your 26 months (yes, you read that right) of discovery, and through mediation (now known as case evaluation).  Sometime after the accept/reject date for the mediation award passed, you’d be scheduled for a settlement conference with a judge who was on “settlement conference” duty for that particular date.  That judge would not be your trial judge either.  If you did not resolve the case at the settlement conference, you had to be ready to try your case immediately, with an available judge given the case by the Assignment Clerk.  Or you could sit outside the Assignment Clerk’s office on the 17th floor for a day or two, awaiting assignment to a newly available judge.  Or you could be sent back to the office for a few days to await assignment.  Or you could just be told to come back with your client in 6 months to repeat the settlement conference/trial assignment tango.  I experienced all of the aforementioned scenarios.

(Note:  I remember one time when I got the assignment call.  I was in my office that afternoon interviewing a potential client.  She was very excited at the prospect of being a personal injury plaintiff.  But she told me she was disappointed in my interview, as she expected it to be more like LA Law.  Then the phone rang, and I was directed to appear before Judge Lucile Watts the next morning for trial.  (I did.  We won.)  Now that was fairly close to something out of LA Law.  I don’t remember if the prospective client was impressed.  I do remember her enthusiasm was somewhat dampened when I declined to take her case.  I don’t know if she ever found her Arnie Becker.)  

Back from the tangent.  What role did the chief judge play in the previously described system?  All motions for adjournment of the settlement conference/trial date had to made before the chief judge.  None of those motions involved cases on the chief judge's (non-existent) personal trial docket, so the chief had no dog in the fight as to any particular adjournment motion.  If the request resulted from a conflict with a prepaid vacation, you might get a sympathetic response, but you had better be ready to cite specifics as to your date of departure, return, prepayment, cancellation charges, etc.  If you had multiple cases that might be tried at the same time, the chief judge might give you some relief, like "We won't make you try 2 cases at once.  You will try the second case immediately after the first one is done".  "Thanks, Judgie, you're a pal."  I once heard a judge reply to a trial conflict adjournment motion with "Hire more attorneys".

By far the biggest source of chief judge motions involved Mediation (now Case Evaluation--sorry, but I have to keep repeating that).  In the early days, the mediation court rule specified that failure to respond to the award within 28 days was considered to be an acceptance of the award.  Having lived through that "era", I still find that hard to believe.  These were the days when all mediation hearings were in person, when you had to file 3 hard copies of summaries and award responses in person or by mail, and when evaluators had to pick up unsorted summaries from the MTA the day before the hearing (and not before).  With no efiling, confirming that your award response was filed timely called for extraordinary care.  Options included hand delivery of responses, certified mail, regular mail sent a week or more ahead with proof of mailing included.  Diary ticklers in the days before computer calendar apps.  The consequences for filing late, or not at all could be catastrophic for your case, your client, and your malpractice premiums.

If you failed to file a response to the award and your opponent accepted, the case was resolved in the amount of the mediation award, pursuant to the court rule.  And the parties were so notified.  The only relief available was through a motion brought before the chief judge.  Thank God, I never had to bring such a motion, but I sat through many of those hearings.  My palms still get moist at the recollection.  Genuine humility, as distinguished from the faux humility of current social media humblebrag, was preeminent at those hearings.  That is not to say that the heaping of blame onto the administrative staffs of the petitioners' law firms was not a feature.   Well, some reason for the mistake, other than "We didn't pay attention" was necessary if you wanted relief from what was often an actual "We didn't pay attention" mistake.  

Gross injustice to the client could be a potent argument.  Also, the thinly veiled suggestion that the denial of the motion would result in a loss of client, a malpractice claim, and a bar grievance might help.  To a defense firm, the loss of a client could mean the loss of a CLIENT, like an insurance carrier.  The consequences of a single such error could affect the long-term size, if not existence of a defense firm.  

These motions often put the opposing attorney in an awkward position.  The euphoria of a likely unexpected settlement of a case was dispelled by the embarrassed phone call from the other side.  As the parties could not stipulate to set aside the resolution of the case by operation of the court rule, a motion would need to be filed.  The other side asks if you will oppose the motion.  What to do?  To paraphrase Star Trek, the Prime Directive in law practice is in fact "Cover Your Own Ass".  What if you don't do something and the acceptance is set aside, and the final resolution is radically more unfavorable to your client than the mediation evaluation?  Then you are the one dealing with upset clients, adjusters, carriers etc.  On the other hand, no matter how confident you might be with your firm's multiple, redundant, sure fire diary systems, there but for the Grace of God, etc.  And, if you hoped to continue litigating in this town, you had best think long and hard before trying to stick it to brother counsel, no matter how tempting the potential windfall of the settlement.  The best approach on all fronts, in my opinion, was to file a very short response, indicating you had no basis to doubt any assertion made by brother counsel, and would leave the motion to the court's sound discretion.  You show up at the motion and introduce yourself.  The end.

I did see those motions denied on occasion.  That was at a time before judges had their eyes on post retirement careers as facilitators.  Yes, young ones, there was a time when facilitation was not the default settlement conference.  Anyway, now, a judge who "jams" attorneys, may not get much work when signing on at JAMS post retirement.

Fortunately, sanity prevailed, for once, and the default acceptance rule was eliminated.

Even though the nature of matters heard by the chief judge has changed over the years, the duties of the chief judge have expanded in many ways.

So, best of luck to Chief Judge Patricia Fresard in the new gig at WCCC.