Q & A with Judge David M. Murkowski, Kent County Probate Court

By Jeanne E. Murphy posted 05-01-2018 13:59


Judge David M. Murkowski, Chief Judge, Kent County Probate Court

The Honorable David M. Murkowski was appointed to the Kent County Probate Court in 2006 to fill the vacancy created by the retirement of the Honorable Janet A. Haynes. Before his appointment, Judge Murkowski specialized in criminal defense, juvenile neglect and delinquency, and probate law, and he served as managing partner of Dilley, Dilley, Murkowski & Goller. Before working in private practice, Judge Murkowski served as law clerk to the Michigan House of Representatives Civil Rights Committee. The Michigan Supreme Court appointed Judge Murkowski to serve as the chief judge of the Kent County Probate Court commencing January 1, 2008. Judge Murkowski currently serves as president of the Michigan Probate Judges Association and as a member of the Judicial Council of the Judicial Section of the State Bar of Michigan. He previously served as council member of the Probate and Estate Planning Section of the State Bar of Michigan and as a member of the Executive Committee of the Kent County Family and Children's Coordinating Council. Judge Murkowski has lectured for the Michigan Judicial Institute, ICLE's Probate and Estate Planning Institute, the Michigan Probate Judges Association, the American Geriatric Society, the Western Michigan Estate Planning Council, and the Grand Rapids Bar Association.


What are the worst things a lawyer can do in court?

  1. Lie
  2. Misrepresent caselaw
  3. Be unprepared
  4. Not know the mechanics of courtroom procedure


Lawyers should feel free to call my staff or the Probate Register for information on specific courtroom procedures. But their first step should be to visit the Kent County Probate Court website. Attorneys should do their homework before appearing in court.


What is the best thing a lawyer can do in court?


Bring a cogent argument to the court along with a solution. I expect lawyers to articulate relief. If they don’t have a solution, they are just complaining.


Other behavior that I require in my courtroom:


  1. Stand when you address the court and place your appearance on the record.
  2. Show up with several copies of exhibits and have them premarked. It is always stunning to me during a hearing when an attorney references an exhibit with a witness and there is not a copy of the exhibit for the court to review and follow the testimony of the witness, particularly when I am the trier of fact.
  3. Know the court rules and applicable statutes.
  4. Know your client.
  5. Know whom you represent. If you represent the fiduciary, you do not represent the estate. See MCR 5.117.


When are written appearances required?


MCR 5.117 controls when an appearance is required. I prefer a standalone appearance any time an attorney appears in court for the first time. It is how you initiate yourself into a case and announce to the court, the litigants, and the public who you are. I want to know who is standing in front of me. If no appearance has been filed, I will ask why. Some attorneys claim that they did not have the time to prepare one. If you have time to take a retainer, you have time to prepare an appearance.


What role does your staff play?


The judicial staff plays a prominent role in my court. The judicial staff is the court’s face to the public and litigants as well as the gatekeeper regarding the court’s docket, scheduling, and procedures. Wise lawyers understand that the court employees are part of my staff, not counsel’s staff.


When is a brief required?


The rules regarding the filing of briefs are governed by MCR 5.119 and 2.119. Any issue of law that is presented in a motion is required to be presented in a brief citing authority. A brief is the attorney’s chance to convince the court to do what the attorney would like. A good brief gives the attorney an advantage. Nothing is more enjoyable than reading a well-written and well-reasoned brief. I may adjourn a hearing and direct an attorney to brief an issue if he or she does not provide the authority necessary to make the decision.


Because I don’t have a judicial lawyer or law clerk, I require that attorneys attach copies of all authority cited in the brief—caselaw, statutes, and treatises. Make sure the brief is timely filed with the clerk, with a copy of the brief delivered to the judge’s chambers as required by MCR 2.119(A)(2).


When is your motion call?


I handle uncomplicated motions on Tuesday mornings, Wednesday afternoons, and Friday mornings. More complex motions, such as motions for summary disposition, are scheduled by judicial staff on a dedicated day and time.


When and how do attorneys request an adjournment?


Attorneys can adjourn a date by motion or they can appear with opposing counsel and make the request informally. I never do an adjournment by stipulation of the parties—hearing dates are not adjourned solely by the agreement of the parties. Hearing dates are precious. We are the busiest probate court in the state. I’m looking for a legitimate reason to adjourn a scheduled date that was previous agreed to by the parties.


What happens at a scheduling conference?


Scheduling conferences are very important for everyone involved in the case. The resulting scheduling order frames the case process. There are rules to follow playing Monopoly, and there are rules to follow in contested litigation. I am happy to meet with counsel to conduct a scheduling conference any day of the week at 8:15 a.m.


Typically, an attorney should never waive attending a scheduling conference. It is a valuable opportunity to size up the judge and the opposing counsel. You also will get a feel for what arguments will be raised in a case. In addition, there is a chance that the case will get settled.


My standard five-page scheduling order details when discovery closes; when to disclose lay and expert witnesses; when summary disposition motions, jury instructions, and trial briefs need to be filed; and how to mark exhibits for trial. The order also sets out what type of alternative dispute resolution will be used—typically mediation.


What happens at a settlement conference?


I expect to settle the case at the conference. The requirements for settlement conferences are captured in my scheduling order. Lawyers must have full authority, and clients must be physically present in the courthouse. I will give an opinion on the relative strengths and weaknesses of the case if asked. I will sometimes will bring in another judge to help with the settlement if my role as the trier of fact becomes limiting.


When should my client come to court?


The client should come to court anytime he or she is ordered to. The client should be in court whenever the attorney thinks he or she needs information from the client or if there is a chance that testimony will be required.


When to approach the judge in a bench conference?


I am always happy to participate in a bench conference if the parties need to do so. Just call the clerk. One day’s notice is fine. The conference can be by phone or personal appearance. This information is also contained in my scheduling order.


How do I schedule a trial date?


Scheduling trial dates happens one of two ways. The trial date can be set at the beginning of the case, but this can result in adjournments due to the mechanics of the case. At times, the trial date is set at the settlement conference when the case does not settle. However, this can result in a delay in scheduling due to the busy docket. Before scheduling a trial, I will want to know how long it will take to try the case and how many witnesses will be called.