Q & A with Judge Kathleen McCarthy, Wayne County Circuit Court

By Kanika Ferency posted 03-11-2020 09:00


Hon. Kathleen M. McCarthy is presiding judge of the court's Family Domestic Division. She has served on the Wayne County Family Court bench since 2001 and was named the presiding judge in 2013. 

What advice do you have for attorneys navigating the new discovery rules?

   There have been many changes to the discovery rules effective January 1, 2020. Most notably, family law cases only allow 35 interrogatories to be served on the opposing party, unless increased with court permission. MCR 2.301(B)(4) requires the serving party to initiate discovery with enough time for a response to be submitted (usually 28 days), before the discovery cutoff date set by the court. Also, MCR 2.312(A) requires parties to identify in the caption and before each request that it is a request for admission. Lastly, in Wayne County, confidential materials submitted with motions should be attached to the original motion and clearly marked “Confidential” so that they are scanned as nonpublic documents available for the court to review. Any party or attorney who fails to properly identify the documents listed in MCR 3.229(A) as “Confidential” waives any claim of confidentiality.
   While domestic cases are not bound by the required initial disclosures stated in MCR 2.302(A), the parties will be required to ensure that the Verified Financial Information Form per MCR 3.206(C)(2) is completed within 28 days following the date of service of defendant’s initial responsive pleading. If a self-represented party does not disclose their address due to domestic violence, the form can be exchanged at the first scheduled matter, usually a case management conference, or any other way specified by the parties or the court.
   All of these efforts are being made to ask uniform and relevant questions and save the attorneys and parties from burdensome discovery. These rules mandate that discovery be proportionate to the case at hand.

For attorneys who have never been to your court, what is your check-in process?

   My docket starts at 8:30 a.m. Any request to start later must be approved by the court ahead of time. I am present and ready to work by 8:30 a.m. each morning. I expect that the lawyers and litigants alike will also be present and prepared to proceed with the matter at hand. I will have read all the information presented to me ahead of time unless it has been filed late. Attorneys should adhere to the Michigan Court Rules time limits when filing pleadings to ensure all pleadings are submitted to my courtroom pursuant to MCR 2.119(A)(2)(d) (i.e., all pleadings/respondent pleadings are due three days ahead of each hearing).

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

   Briefs are required to be attached to any motion pursuant to MCR 2.119(A)(2). Any brief should apply the facts of the particular case to the law at issue. I am continually amazed at the number of motions I receive that contain no legal authority justifying the requested relief. Or I receive a brief that outlines the law itself but fails to apply the facts of the case to the law. All motions without attached briefs applying the facts to the law are returned without a hearing date until properly submitted.

When is your motion call? Is there a maximum number of motions heard during motion call?
I do not have a specific motion day in my courtroom. For the convenience of the lawyers and litigants, I prefer to hear motions on a date other matters are already scheduled for a court appearance, if possible, like a case management conference or settlement conference. As a result, most motions are scheduled on Mondays in my courtroom as that is typically when case management conferences and settlement conferences are heard. However, I am happy to be flexible with scheduling.

Should proposed orders be submitted to the clerk before argument? Do you expect orders to be drafted in court, and if so, are there computers for drafting them?      
While proposed orders do not need to be presented before a motion hearing, having a proposed order prepared ahead of time and attached to a motion helps attorneys stay focused on the issues before the court and their requested relief. It also helps settle motions ahead of time if presented to the opposing counsel and the court. Lastly, it indicates to me that you thought about your case, the facts, and the law ahead of time and came prepared with a solution to your client’s problem. That is the very reason you have been retained as legal counsel—to help your client navigate the legal system and to help them resolve their issues within the confines of the law. My courtroom does have a computer and a printer available to complete an order the day of the hearing, and that is my preference.

What procedural issues or disputes should be worked out between the parties before involving you?
   It is assumed by the trial judge that attorneys are going to proceed with their case from date of filing by engaging in thorough discovery, sharing settlement proposals with opposing counsel, run child support guidelines, and go to mediation, without court intervention.
   Just as the parties should not want a stranger deciding with whom their children should live, attorneys should be seeking to resolve their matters with little to no court intervention. If court intervention is necessary, come to court with a precise game plan and provide options to the court to resolve your case.

What types of pretrial conferences do you hold and what happens at them?
My case management conferences and settlement conferences are held on Mondays in Courtroom 1813 at 8:30 a.m. Generally speaking, I am going to set scheduling orders in place to ensure time standards are adhered to. I will meet with counsel in chambers to discuss settlement and to give general guidance as to how I might resolve a case if the matter were tried before me. Attorneys should come prepared to settle, having done their own discovery and knowing all the facts of their case. They should use that time to meet with opposing counsel ahead of time to try to resolve their case or narrow down the issues.

Any other common mistakes lawyers make in your courtroom?
   Not being prepared ahead of time, not submitting thorough briefs that apply the facts of their case to the law, or not having a good understanding of their relative burden of proof on whatever legal issue is before the court.

What do you think is the most commonly misinterpreted court rule or rule of evidence?
   They may not be necessarily misinterpreted, but the most common misused court rules involve 7-day orders and default judgments. Most often the attorneys fail to provide the proper notice and proof of service pursuant MCR 2.602(B)(3) for 7-day orders. Additionally, attorneys often forget that the motion, notice of hearing, and a copy of the proposed default judgment must be served on the defaulted party at least 14 days before the hearing pursuant to MCR 3.210(B)(4).

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

   Lawyers dedicated to family law always impress me. This is a very difficult area to practice as it is riddled with so much emotion. Litigants are highly reactive and often are unable to understand the law as applied to their facts, and they only provide the court with certain outcomes. They are angry and resentful, hurt and scared about their lives moving forward, and that plays out in the courtroom with their counsel and the court. The lawyers who impress me the most are the lawyers I rarely see, as they are knowledgeable enough about the law and facts to resolve their cases without court intervention. However, coming to court prepared and ready to admit the strengths and weaknesses of your case so that an appropriate resolution can be made also impresses me.

What is something interesting you do off the bench?
   I spend most of my free time up north at my home on the water. It soothes me from the emotional turmoil played out in front of me during the week.

Is there anything else you would like Michigan lawyers to know?  
I have two offices as the presiding judge of the Family Division. I can be found in Courtroom 1813 in the Coleman A. Young Municipal Center (CAYMC) on Monday, Thursday, and Friday and in Courtroom 11-A in the Penobscot Building (PNB) on Tuesday and Wednesday. As the presiding judge, I handle all motions to set aside paternity, irrespective of the assigned judge, on Tuesdays in Courtroom 11-A in the Penobscot Building.
   I still enjoy my job and my 20 years on the bench and continually look for ways to improve the practice of law in Wayne County. Many electronic improvements have been made, including electronic case management orders emailed to parties and attorneys. In addition, a new Case Reminder Service (found at http://www.3rdcc.org/CaseReminderService) has been added for litigants and counsel alike. This is meant to cut down on missed court dates. We will soon be rolling out an improved reminder service allowing litigants and lawyers to check in to court proceedings the day before. This system, coming at the beginning of 2020, allows matters to be displayed on an electronic board in the courtroom and notify parties and counsel that their matter will be heard next, much like the ones the Secretary of State or your favorite restaurant use.
   I have an open-door policy. If you want to discuss a problem or a concern, or share a compliment about our hardworking staff, send me an email at Kathleen.McCarthy@3rdcc.org. I appreciate the opportunity to serve the public as a family court judge.