As I take over editorship of the Best Practices column from the capable hands of Gerard and Theresamarie Mantese, I would like to contribute to this column’s ongoing narrative. From a court administrator’s perspective, I write here of some best practices for attorneys working in state trial courts.

Despite the historical trend for legal work to take place outside and in lieu of courts,¹ the court system is unavoidable for most attorneys. Prosecutions and lawsuits are filed, evictions and fiduciary appointments sought, and one finds attorneys at practice in all these court actions and more.

IN GENERAL

Trial courts represent an interesting mix of state governmental institution and local authority; neither element necessarily meshes well with the multi-court, results-oriented work of most attorneys. On the one hand, any trial court is part of a regimented whole — it is subsumed in Michigan’s One Court of Justice.² On the other hand, and despite attempts at mandated uniformity,³ each court and each judge have tailored policies and procedures for others to follow.

Courts must follow a variety of statewide directives from statute to Supreme Court rule and administrative order to State Court Administrative Office (SCAO) guidance and oversight. In this way, courts do not have the flexibility of the private sector even in cases where the variance seems minor but would make the attorney’s day much easier. An attorney would do well to understand the elements and scope of this bureaucracy to prepare properly for court.⁴

In contraposition to the above, each trial court employs custom rules. These include the largely uniform SCAO-approved operational local administrative orders (LAOs) ranging in topic from access to records to case assignments to alternative dispute resolution to specialty dockets.⁵ Some courts also have (less uniform) local court rules. Additionally, trial courts often have written policies on matters from jury procedures to interpreter use. Various courthouse offices may have custom procedures — e.g., on the delivery of judge’s copies. Finally, every judge has her or his own style in running the courtroom. Knowing this “local bureaucracy” will likely save an attorney time and headaches.

CLERK’S OFFICE

Whether you are in circuit, district, or probate court, you will typically start by filing pleadings or other documents in the court clerk’s office. Here are some general tips.

• Bring or send what you need. Have you brought a draft order to go with your motion and a self-addressed stamped envelope to receive your executed copies? Are you using the current SCAO form?⁶ Does local practice require you to follow the court rule and file a motion for adjournment?

• Use modern techniques. Have you avoided tabbing your brief so it can go through the court’s scanner? Have you checked your case online for the information you need?

• Check beforehand. Have you called to verify the filing fee? Can you get a motion date beforehand to put in your notice of hearing?

• Understand case type codes. Have you captioned your pleading with the right case type code, a designation trial courts must use for case processing and SCAO caseload reports? Is there is any type of business or commercial dispute requiring use of the business court code (CB)? Is your decedent estate filing an unsupervised administration (DE) whether you are asking for formal proceedings to initiate or is it a supervised administration (DA)?

• Be civil. Don’t shoot the messenger … or the clerk on the other side of the counter. It is important to understand that even in the face of professional frustrations, the deputy clerk you deal with is constrained by the aforementioned multi-layered bureaucracy. Good relations are not just proper, but prudent.

MOTION PRACTICE

The basic steps of how to proceed in any given case are largely defined by statute, court rule, and local circumstances. The opportunity for instructive best practices tips usually arises in cases of new laws or court rules that mandate a change in the process and where an attorney must venture into legal practice areas outside of the lawyer’s bailiwick. Below are a few examples.

Expungements

With clean slate legislation,⁷ the opportunities for individuals to apply for their past convictions to be set aside have greatly increased. Successful applications will be on the proper form, signed, include a return mailing address as well as additional copies and a prepared order, and be filed after the appropriate waiting period after a qualifying conviction (which does not include a deferred dismissal under HYTA, MCL 769.4a, or MCL 333.7411 or most instances of operating a vehicle while intoxicated).

Attorneys must ensure that notice to the prosecuting official and the Michigan attorney general, memorialized in a proof of service, includes the date of the expungement hearing. Finally, the applicant’s Michigan State Police (MSP) criminal history report, based on submission of fingerprints and payment of MSP application fee, should be secured so the attorney general will prepare an opinion on the motion for the judge; substituting an MSP Internet Criminal History Access Tool (ICHAT) report is not sufficient.

FIGCs and Investigations in the Friend of the Court

With the enactment of MCR 3.224, the new friend of the court (FOC) alternative dispute resolution court rule, the process for issuing custody and parenting time orders has changed. Facilitative information gathering conferences (FIGCs) typically result in a recommended order but if the case screens out for domestic violence or neglect/abuse, the parties object, or the FOC does not employ FIGCs, an investigation may be conducted which may result in a recommendation and report without an order. Attorneys are best to remember that when there is just an investigation recommendation, no objection should be filed.

Orders to Reduce Child Support in the Friend of the Court

Payor overpayment can arise when there is a delay between the effective date and entry date of a uniform child support order (UCSO) for a lower support amount. Unless the attorney for the payor drafts a UCSO to include language to address the overpayment (e.g., specifying a short-term reduction of support for a specified duration until the overpayment is extinguished) it will remain on the account, causing confusion until a subsequent order is submitted by the attorney to address the overpayment.

Juvenile Waiver Cases

Actions to waive a youth into the adult criminal system require the juvenile’s defense attorney to straddle two worlds. In phase II hearings under waiver statute MCL 712a.4, the attorney must understand the six factors considered in determining if the best interests of the juvenile and the public would be served by the waiver. Later in the process, if the juvenile is convicted, the attorney must understand the applicability of the sentencing guidelines including the offense variables and their explication through the use notes. Later still, should the juvenile be lodged in the jail, the attorney must be familiar with what is required under the federal Juvenile Justice and Delinquency Prevention Act, including sight-and-sound separation of the youth from adult prisoners.

Family Division Jurisdiction and In re Seay

In cases where an adult is charged with a crime allegedly committed while a juvenile — these delayed allegations often involve criminal sexual conduct — statute requires the case to be transferred to the court’s family division. However, defense counsel should be prepared if the defendant is beyond the personal jurisdiction age limit of the family division; according to In re Seay,⁸ the only jurisdiction that division has is conducting a waiver proceeding to send the case back to the adult criminal system.

The Uniqueness of Probate Court

Criminal and civil work is dominated by a rather simple adversarial model — there is a plaintiff and a defendant, and they are the parties to the case. Attorneys who do not typically work in probate court but may need to open a decedent’s estate, trust, conservatorship, or guardianship benefit from understanding that, in general, this simple model does not apply. While the probate court sees lawsuits on occasion (e.g., when brought by an aggrieved creditor), the vast majority of its actions involve a petitioner, a respondent, and a potentially large group of interested parties. Probate court matters are typically about a status (e.g., an appointed or removed fiduciary or an admitted will) and not about seeking damages, and involve others beyond the respondent who need notice since they have an interest in the status being sought.

Motion for Bond and Pretrial Services

Criminal defense attorneys often move for jailed clients awaiting trial to be allowed to post a pretrial release bond. In counties with pretrial services, it is typical that in such cases they will be called upon to conduct a risk assessment and offer a report for the judge’s review. A simple time-saving step in such a situation is to ensure pretrial services receives a copy of the motion sooner rather than later.

CONCLUSION

Trial courts are part of Michigan’s One Court of Justice, employ some custom procedures for their operations, and are the venues in which novel and disparate laws are applied. Best practice counsels an attorney’s appreciation of these complex arrangements.