Q&A with Judge Annette J. Berry, Wayne County Circuit Court

By Jennifer L. Colagiovanni posted 08-01-2019 09:39



Hon. Annette J. Berry was elected to the Wayne County Circuit Court bench in November 2000 and reelected in 2006, 2012, and 2018. Since 2013, Judge Berry has served in the Civil Division, after serving in the Criminal Division from 2001 to 2013. Judge Berry received her undergraduate degree from the University of Michigan and her JD from Michigan State University Law School, formerly the Detroit College of Law. In 1988 she joined the Office of the Michigan Attorney General after being appointed as an assistant attorney general by Frank J. Kelly. During her distinguished career with the Department of Attorney General, Judge Berry served as legal counsel for the Department of Licensing and Regulation, the Department of Education, the Department of Consumer and Industry Affairs/Insurance and Banking Division, and the Department of State. For nearly eight years, she served as a prosecutor in the Criminal Division, specializing in white-collar, economic, and conspiracy crimes. Judge Berry was appointed by Attorney General Jennifer Granholm as chief prosecutor for all gaming prosecution arising out of Detroit casinos. Judge Berry has served as past president of the Michigan Judges Association, which consists of Michigan judges who serve at the trial and appellate level. She has been a member of the executive board of directors for over 10 years and previously served as chair for the corrections committee. Judge Berry was one of 20 Michigan trial court judges honored in 2019 by the Michigan Supreme Court for her volunteer activities in the community.

When is your motion call? Is there a maximum number of motions heard during motion call?

Motions are heard on Wednesdays and Fridays. Every case is important, but there are some motions that, depending on the subject or litigants, may need undivided attention, and so we will often schedule these on Wednesdays. In my view, it is unfair to pile everything on Friday, so we really try to spread the work throughout the week. There is no maximum number of motions heard during motion call.

Do you have any particular briefing requirements? What sort of arguments in a brief do you find compelling?

I follow the standard briefing requirements in the court rules. In terms of what I find compelling, it really depends on the nature of the case, but I appreciate when attorneys present the facts as they are, apply the law, and keep the emotional baggage out of it.

I don’t like to see snarky, underhanded commentary in a party’s brief. It isn’t helpful, and it is not appreciated. This really undermines, rather than enhances, the argument. And I feel the judge really needs to set the tone of professionalism that is expected.

What do you think is the most commonly misinterpreted court rule or rule of evidence?

Unfortunately, I think some attorneys just don’t read the court rules. It really is like a cookbook that lays out the instructions. Specifically, we see a lot of issues with the time frames under MCR 2.119. Under the court rule, a motion must be filed at least 7 days before the hearing, and any response must be filed at least 3 days before the hearing. These time frames are important because I read through the materials 2 to 3 days before the hearing. So if a response is filed the day before the hearing, it is problematic. I don’t like for my clerk to have to tell a party that his or her filing wasn’t timely and the court isn’t going to accept it, but with almost 900 cases currently on the docket, the court needs to follow the court rules too. Under MCR 2.119, there is no right to a reply brief; parties may reply only with the permission of the court. That said, we still receive replies to the response.

For a motion for summary disposition under MCR 2.116, the time frames need to be followed to allow time for a reply brief. The response needs to be filed at least 7 days before the hearing to allow the moving party to file a reply brief in support of his or her motion at least 4 days before the hearing.

Any other common mistakes lawyers make in your courtroom?

Showing up late or not showing up at all are mistakes I see attorneys make. I understand that unforeseen circumstances arise, and we really try to first understand what happened to make the individual late. But that said, there are chronic abusers that show up late over and over. Attorneys, especially younger attorneys, need to realize that a good reputation matters.

It is important for attorneys to be responsible and respectful. Check in and let the clerk know that you are going to be in another courtroom—we understand that happens. This shows a respect for everyone’s time. Also, remember your responsibility to your client. It is problematic when we are at the point where we are ready to resolve a matter and the client is in the courtroom but counsel is nowhere to be found. I feel very fortunate and grateful to be a member of the State Bar of Michigan, and I hope that attorneys view it as a privilege to practice law.

Who makes up your judicial staff and what roles do they play?

My court clerk has been with me for five years, and she keeps the docket moving. She fields calls on adjournments and late filings, schedules settlement conferences, assists with orders, and answers other questions.

My law clerk assists the court clerk with fielding phone calls, answering questions on court protocols, and helping attorneys. He organizes the docket for motion call and pulls all the documents together. He also handles some legal research matters.

My deputy has the task of asking attorneys to turn off their electronic devices while court is in session, something no one likes to hear! However, attorneys are allowed to use their laptops during their motions.

While many courtrooms have moved over to video machines, I still have my court reporter. It’s an important and valuable position because it is important for all the parties to have a complete and accurate record.

When and how do attorneys request an adjournment?

As soon as the party knows—the sooner the better. This allows time to get another date and give notice to the other side. We really want to avoid the situation in which the other side shows up, spends time parking, and comes into the courtroom only to find out that the motion was adjourned.

I prefer that the party seeking an adjournment send an email to either my court clerk or my law clerk. This protects everyone so we don’t have a situation in which someone claims to have called for an adjournment but we don’t have any record of it. I try to “dot my i’s and cross my t’s,” which may be a product of my time in the Criminal Division. An email request just creates the paper trail so attorneys know, and we know, that they’ve requested the adjournment.

What types of pretrial conferences do you hold, and what happens at them?

I hold a pretrial settlement conference. All parties are required to attend, with their clients or a person with the authority to settle. We are trying to bring the parties together and begin the negotiations. It is problematic when it is not the attorney of record who shows up or when the individual does not have authority to settle. In that scenario, the settlement conference doesn’t have a useful purpose, and it ends up being a waste of time and money.

I know some judges hold their pretrial conferences in chambers. It is my practice to call the case, put it on the record, and have counsel make their appearances. I think it was surprising to some attorneys at first, but I think people have come to expect it now. It really protects the court by documenting that we did in fact have the settlement conference, and it also protects the parties by creating some accountability in the process.

Depending on where things stand, sometimes I’ll bring the parties back to talk in chambers, and then work to first find something in common between them. There are times when you find that the parties really haven’t talked before, and this can help to move them toward a resolution. I am also happy to set time aside to try to resolve a case, which might mean we need to schedule some additional time. If there is a settlement conference next week on a case, the parties can call the court and ask the clerk to check with me about scheduling some additional time. Or at a settlement conference we can schedule another date for all stakeholders to come back and try to resolve the matter. The court is here for the parties to facilitate a resolution.

When should my client come to court? Do you allow telephonic appearances?

The client should be at every settlement conference, not just a final settlement conference. I understand that a client may be suffering or in physical pain, making it difficult to appear in person, or that the adjuster may be located upstate in the winter months in Michigan. As long as it is cleared ahead of time and they are available by phone with authority to settle, I allow telephonic appearances.

How are trial dates scheduled?

It depends on the nature of the case. No-fault cases are now placed on a one-year track. This applies to all cases started in 2019. Since it is a one-year track, we try to get the trial date set at the first scheduling conference. I try to set trial dates with the attorneys present and on the record. For other cases, trial dates are typically scheduled at the second scheduling conference. We do not have any cases outside of time standards.

Do you have any advice for new lawyers?

Take a moment and read the Michigan Rules of Professional Conduct. They really are the holy grail and should be important to all of us in the legal profession. Demonstrate professionalism in your attitude and in your dress. Dress professionally when you appear in court. Afford the appropriate deference and respect when you address the court. Think about what you have control over to leave a good impression. Be the best you can be at what you do. A polished, professional presentation goes a long way.

What is an example of a time a lawyer impressed you?

I can think of an attorney that I really enjoy watching in my courtroom. This lawyer impresses me by arguing passionately on behalf of his client in an intellectually honest way. He acknowledge the weakness in his case and addresses it truthfully. He has researched the issue and prepared an excellent brief, but then chose two or three salient points. He discerns the points he wants to focus on, keeps it simple, and doesn’t get bogged down in the weeds. This makes for a decisive and clear argument.

I appreciate seeing compassion from attorneys. I can think of cases involving student loan defaults or evictions in which I saw the attorney talk to the client and come up with a payment plan. It is great to see attorneys strike that balance. It really demonstrates that the person holds our profession up to the highest standard by showing a willingness to go above and beyond.

 What is something interesting you do off the bench?

I enjoy teaching in the Criminal Justice Studies Program at the University of Michigan Dearborn. I also enjoy volunteering—I feel that giving back is one of the most valuable things a judge can do. I serve as the current President of the Father Clement H. Kern Foundation in Detroit. The foundation hosts an annual dinner to honor those who have championed its mission and provides financial support to many local organizations (including schools, soup kitchens, community outreach programs, child welfare groups, and more). I have also volunteered with the Boy Scouts of America for many years, and I proudly saw my son reach the level of Eagle Scout.