Over the many years of my litigating career, courts have tried to control their trial dockets in diverse and strange ways.
When I started out, Wayne County Circuit judges had no trial dockets. The assignment of cases for jury trials was exclusively the province of the Assignment Clerk. I have written about that here. In brief, you would show up for a settlement conference before a randomly selected judge, and if you didn’t resolve your case, you could begin trial immediately (but definitely not with your settlement judge). Or, you could be sent to the 17th floor of the City County Building to wait around for an available judge, either that day or on one of the next few days following. Or you could be given a return date, six months down the road to repeat the process. Cases never (or hardly ever) went to trial the first, second or third time up. Old hands would tell you, “Why are you scheduling your doctors? This case is only first time up.” This was usually true, until the time that it wasn’t.
Way back, Genesee County Circuit Court judges had civil jury trial “terms” lasting generally 3 weeks. There would be a list of cases for that term, all having been given the first day of the term as their trial date. The cases would be listed, oldest first, to newest at the bottom of the list. That list had 32 cases on it, and I had good reason to remember that number. Those trial dates were assigned in an early scheduling order, and there no settlement conferences scheduled before the day of trial. The beginning of jury term came up and a few of the oldest cases were called to be ready and the rest of the list waited to see if their case would be called during the following 3 weeks. As cases were not tried on Mondays, being motion days, that was 32 cases to potentially to be tried over 12 trial dates. The cases at the end of the list were pretty sure not to be called.
One time I had a case up for trial and I had dutifully set up my 3 or so doctors’ de bene esse trial depositions, generally the week or so before trial term started. About 2 weeks before trial date, I got a call from defense counsel, one of the Flint “locals”. He had seen the jury term trial list and we were case No. 32 on a list of 32. First time up. As we for sure weren’t going to be called for trial during the term, why didn’t we save time and money and adourn our trial deps and start talking settlement. As most video deps cost about $3,000 out of pocket, which came of the top of the client’ setttlement, avoiding those costs, if possible, was a good thing. So, fool that I was, I agreed and both sides cancelled their deps and put the case on the back burner.
So, move forward two weeks to the afternoon of the first day of the jury term. I get a call from the Court, and wonder of wonders, our case had moved from No. 32 on the trial list to No. 1 (with a bullet). All the other cases had somehow resolved during that day? Hard to believe.
So there I was, no medical testimony in the can, and none of the normal trial prep that dominates the week before your trial completed. As the other side was in the same shocked position, a marathon of panicked calls went back and forth, between counsel, adjusters and clients. Not sure of the final resolution, though I do know that we did not try the case. I learned my lesson, and never ignored trial prep based on the “first time up exclusion”.
Another method of trial scheduling I experienced was the “trailing docket”. In this instance my case was chosen to be on a 30 day trailing docket. The court could call me at any time up to 5pm, to start trial the following day. This happened in the days before the instantaneous notice provided by email, efile and cell phones. In fact, at this time, if you had a cell phone, you couldn’t bring it into the courthouse.
If I was out of the office for some reason, I had to call either my office or the court around 5pm to see if we would start the next day. I also had a list of clients, techs, etc, I would have to call to let them know they would need to drop everything and show up at court at 8:30 the next morning to begin.
As it turned out, the 30 days passed without the case being called, and eventually the case became so old, I was forced to retake two of my doctors, as the client’s condition had changed to the extent that the previous testimony was stale.
Enough said about that case, which for a variety of reasons, will get its own chapter in my memoirs.
The goofiest trial docketing system was employed by a now retired Wayne Couty Circuit Court judge. Long after all other Circuit judges had done away with the mandatory, in person status conference, this judge required all to be present. At the time of that conference you would need to know everything about your case and your client (height, weight, favorite color), or nothing about the case. On the occasions you didn’t need to know anything, the conference duties had been delegated to the judge’s clerk, court officer, or court reporter.
The circuit had developed standard tracks for discovery, witness list filings, settlement conferences and so forth. Those tracks did not supply a standard trial date. There were 3 tracks and nearly all judges sent the standardized form with a check mark after Track 1, the shortest track. If you needed more time you had to ask the court for help.
The judge I am talking about made you come down, and you were given dates that could best be described as Track .5. The judge developed her personalized scheduling order. Most interesting was the scheduling of settlement conferences. There were 2. The first occurred on the Monday-Thursday that was 35 days after case evaluation. This was back when rejecting a case evaluation exposed your client to sanctions. Case eval meant something. And as you had 28 days to accept or reject an evaluation, you might not know if your case had settled until 3 or 4 days before settlement conference No. 1. Which often caused difficulties as settlement conference No. 2 was always at Noon on the Friday of the week of settlement conference No. 1. If the case did not settle at those conferences, you were to start trial at 8:30am the following Monday.
In order to be ready for a trial under such conditions, you had to start scheduling doctors’ depositions as soon as you got back to the office after case evaluation. Some depositions were taken before the case evaluation response was due. Most often, I’d try to schedule my doctors in that week when the settlement conferences were held. If we settled the case, the deps were cancelled, and some costs were saved.
My most memorable case with this judge involved a case I had with a difficult client. The case evaluation was fair and I recommended that the client accept. It was a premises liability case, and though it was before the heyday of “Open and Obvious”, you still had to prove negligence, including notice of the defective condition. My client was adamant that his case was worth more, though I don’t remember getting a specific demand from him. So, doctors’ depositions were set, and we waited for our 2 settlement conferences hoping the judge might help my client see reality. However, the judge was sick the entire settlement conference week, so no settlement conference No. 1 nor settlement conference No. 2. But, the judge relayed to us, from her bed of pain, that we would going to trial on the Monday she returned to work. We were the only case going that day, so be ready.
So…..starting on the Wednesday afternoon before trial, defense counsel and I took the trial dep of one of my client’s treaters, in the David Whitney Building-this being before the building became vacant. Thankfully, after several years the building was restored. From that deposition we jumped on a plane to Miami, to take the Thursday morning deposition of a former ER doc who saw my guy just after the accident. The defense scheduled this as they thought my man didn’t complain of certain problems at the ER that he later related to the accident. Much ado about little, in my opinion.
After that dep we flew back to Detroit to take the deposition on Thursday evening of another treater in Wyandotte.
And finally, as I had early on reserved the right to take the pretrial dep of the defense’s on site rep if the case was to be tried, we spend Friday afternoon taking that dep.
The whole weekend was spent with the usual formal trial prep-meeting with the client on Saturday etc. Scrubbing deps, preparing jury instructions etc. on Sunday.
Come Monday, we reported at 8:30am promptly, to start marking our exhibits. We discovered that our case was one of four told “You are the only case up”, so four sets of lawyers marking exhibits.
The judge arrived about 9:30am and of course instead of starting any trial, she held the first round of the current week’s settlement conferences, and status conferences. Our case was the first trial called back into chambers about 11:15. We told the judge about the case, and the case evaluation. She told the defense counsel to leave chambers for a bit. She told my client that she thought he should accept the case evaluation (I forgot to mention that I had been told before all this melodrama that the defense had accepted case evaluation). So, what did my hero do? “I’ll take it.”, he said. We put the settlement on the record, with me indicating that all the costs of the last week would come out of that case evaluation figure that he now accepted, and that was that. I won’t go into how I explained that the case evaluation would become smaller as trial costs were incurred. I did, but that didn’t prevent a certain friction later when the settlement proceeds came to be distributed.
So, after going off the record, I sent my client home. And defense counsel and I, who had spent a great deal of time together over the previous week, decided to go to lunch at the Tunnel Barbecue in Windsor. Further, defense counsel indicated to me later, that our conversations on the plane helped him decide to run for judge. He did, and won, beating an incumbent. It’s a funny old world, and even the screwiest judges and their screwy procedures can achieve, however indirectly, good results.
