Judge Jacob James Cunningham was elected to the bench in November 2018. He currently presides over a family division docket. Prior to his election to the bench, Judge Cunningham was a judicial clerk for the Hon. Wendy Potts and a staff attorney for the Hon. Mary Ellen Brennan. He is a member of the Oakland County Bar Association. Judge Cunningham is also a member of the American Judges Association, Michigan Judges Association, Incorporated Society of Irish American Lawyers, Armenian American Bar Association, International Association of LGBTQ+ Judges, Eastern District of Michigan Federal Bar Association, Michigan Inter-Professional Association, and the Michigan Supreme Court’s Child Welfare Leadership Workgroup.
For attorneys who have never been to your court, what is your check-in process?
On Zoom, attorneys will log in, and the clerk will bring them into the virtual courtroom where they can talk with the clerk or check in with the chat feature if court is in session. The attorney may have to wait if another case is being heard. For in person hearings, the process is the same as in the past—the attorney can approach the clerk and check in there.
When is your motion call? Are there a maximum number of motions heard during motion call?
Motion calls are on Wednesday mornings along with all my colleagues in Oakland County. I do not have a maximum for motions or a hard cut off. I just do the best I can to get them all addressed. If a call is particularly lengthy, I may ask some cases to re-praecipe for a later date.
Should proposed orders be submitted to the clerk prior to argument? Do you expect orders to be drafted in court, and, if so, are there computers for drafting them?
I learned as a young attorney to never leave court without a court order. It can be difficult in family court where there are many self-represented parties to know exactly what folks are asking for in their motions. So, having a proposed order makes sure we are all on the same page, literally.
However, if there isn’t a proposed order, my staff will prepare orders as part of our public service following motions. This is helpful for several reasons. First, there is no risk of comeback litigation of what the order should read. Second, it helps me remember what my thought process was at the time if the parties come back later for a hearing or down the road on a motion to enforce the order. Third, in the days of handwritten orders, not all handwriting was created equal, and some orders could be very hard to read. However, this is not an issue nowadays with e-filing on nearly all our cases.
How should stipulated orders be submitted?
Stipulated orders should be submitted through the e-filing system. Nine times out of ten, I will sign the stipulation that folks present unless something really sticks out as a concern.
Who makes up your judicial staff and what roles do they play?
Sheila Russ is my judicial assistant, and she’s amazing! Ms. Russ keeps track of my calendar and my juveniles matters. My clerks are Ms. Essak and Ms. Younis. They both keep the entire docket calendar, assist with checking parties in and court room operations, and keep the docket moving. Mr. Shane Kolo is my judicial staff attorney, and he handles anything summary disposition related or more complicated legal orders, manages motion call, and helps to conduct settlement conferences.
What types of pretrial conferences do you hold and what happens at them?
I view pretrials as a meeting to see what can we get accomplished short of holding a hearing or trial if that is where we are headed in the case. Sometimes that can be just setting a future date or tailoring a scheduling or pretrial order to the needs of a case. It depends on what the case needs and what the attorneys are asking of the court. I prefer to get as much done at pretrial as possible, especially on issues that could shape the case in any way at trial.
Are you still using Zoom? If so, what types of matters/motions are held via Zoom?
Yes, pursuant to the supreme court directive to use Zoom as much as feasibly possible for court matters. I use Zoom for motions, proofs to enter a divorce, issues that might pop up for attorneys that can be resolved quickly, settlement conferences, and sometimes emergency motions. I do not use Zoom for evidentiary hearings, trials, or any cases involving interpreters. If I am dealing with litigants who can’t handle Zoom and are misbehaving in court, I will schedule their hearings in person.
What are some of the common mistakes/issues you see attorneys making when attending court via Zoom?
Client control—attorneys need to advise their clients that Zoom hearings are the same as open court and should be treated as such. Being on Zoom is exactly the same as if you were standing at the podium or seated at the counsel table. It seems people are more comfortable at home and tend to act more inappropriately in Zoom court. So, make sure to talk to your clients ahead of time.
One thing I am not as concerned with is how folks and attorneys are dressing for Zoom court matters. The pandemic has made people more comfortable with being comfortable and casual, and, frankly, I’m okay with that. As long as you look and act as a professional, I will take you as a professional. But a huge mistake I see that is concerning is attorneys driving during court hearings. As officers of the court, driving while in Zoom court proceedings is literally engaging in distracted driving while attending court, which is problematic for many reasons.
Another issue I see frequently is attorneys having multiple Zoom hearings occurring at the same time. I’ve had cases where attorneys are having a full other conversation in another Zoom courtroom at the same time as their Zoom hearing in my courtroom. This is far more disrespectful in my opinion than being without a tie or sitting at your kitchen table during a hearing. It makes it very difficult to hold a hearing when there are people on multiple devices in multiple hearings at the same time.
Do you have any advice for attorneys appearing remotely?
If you couldn’t or shouldn’t do it at an in-person hearing, you shouldn’t do it on Zoom, and the same goes for clients. A lot of attorneys are frustrating judges and their clients when they are not giving Zoom hearings the same level of deference and respect that they would at an in-person hearing.
What are some components of an argument (either in a brief or oral argument) that you find compelling or persuasive?
In the family division, being candid with the facts, even bad ones, is compelling. When I get a motion with one party’s “list of horribles,” and the response to that motion illuminates me to facts that in candor should be disclosed (i.e. neglecting to mention pending domestic violence charges), that’s a concern. It makes me think you’re trying to sneak something past me, which is a credibility problem. Even if your facts aren’t great, disclosing them to the court anyways will bolster credibility.
I also take the time to read everything that is appropriately filed, so you do not need to regurgitate everything during oral argument. Make sure to be complete with your facts in your written work. This is very persuasive.
What procedural issues/disputes should be worked out between the parties before involving you?
Common sense things should be worked out, for example, disputes between attorneys on scheduling a deposition. If someone is refusing to sit for a deposition, that is one thing. But if attorneys are just fighting over scheduling dates, that should not involve the court, and clients should not be billed for that. Be professional and work out scheduling between the attorneys. Same goes for most discovery disputes that can clearly be worked out by counsel.
Any other common mistakes lawyers make in your courtroom?
In general, the biggest most common mistake I see is in motion practice when folks don’t follow the court rules. There is no such thing as a “Reply to a Response” in regular motion practice. You get a motion, you get a response, you have argument. That’s the process. I get a lot of motion reply to responses and “supplements” that are just simply contrary to the court rules.
What do you think is the most commonly misinterpreted court rule or rule of evidence?
Motion practice, especially in the area of family law. If folks just followed the court rules, there would be much less fighting. I read everything ahead of time, so I have time to think about the issues in the case and confer with the Friend of the Court. It makes it difficult to do that when attorneys file things the day before a hearing and expect me to consider it. Also, attorneys in family law sometimes forget that the rules of evidence apply at hearings/trials.
What is an example of a time a lawyer impressed you?
It is impressive when a lawyer goes above and beyond for their client in a way that also follows the court rules, uses the appropriate facts (even bad ones), and gives deference to the court when decisions get made they don’t particularly like. Family law can often try to make it about how bad the other party is, but, at one point, the parties liked each other, and my job is to look out for the children caught in the middle. I appreciate when a lawyer has bad facts but acknowledges them. The truth matters.
I am also impressed when lawyers come to oral argument, and it is clear that they tried to work things out; and the lawyers make it about their clients, not themselves or the legal matters between counsel. Keeping it professional between the attorneys is very important, and our profession demands it.
What is something interesting you do off the bench?
I love to travel and take some time away from my daily routine. I am a big fan of the beach. I’m a pretty active yoga practitioner. I also do love a good meal, especially a nice dinner out at a fun new restaurant. There’s also nothing better than a good dance party.
Is there anything else you would like Michigan lawyers to know?
I respect the work that attorneys do from the other side of the bench, I come from a family of lawyers. I want to work with attorneys as much as I can for them to be masters of their own case within the guidelines I have as a judge. My job, as simple as it sounds, is very much just to call “balls and strikes” as I see them. As long as folks are reasonable and appropriate, I will work with them to help them help their clients.