Judge Janice K. Cunningham was elected on November 6, 2012, as the first woman circuit court judge in Eaton County and took office on January 1, 2013. She became Chief Judge for Eaton County Trial Courts effective January 1, 2020. Judge Cunningham hears civil, criminal, and family law cases. In addition to her normal caseload, Judge Cunningham also presides over the Adult Circuit Drug Court and Veterans Treatment Court. She is also the judicial volunteer for the SMILE program. Prior to taking the bench, Judge Cunningham was in private practice, where she specialized in family law.
For attorneys who have never been to your court, what is your check-in process?
There are two options: 1) The attorney may simply wait in the courtroom, and my judicial law clerk will come out prior to the hearing time to check in people; or 2) the attorney can go down the hallway by the circuit court clerk’s office and ring the buzzer for the judicial assistant and advise the clerk of the participants who are present and then wait in the courtroom.
When is your motion call? Are there a maximum number of motions heard during motion call?
Eaton County does not have a motion call. Motions are set for Wednesday and Thursday afternoons at 15-minute intervals, unless additional time as been requested.
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?
Proposed orders should be shared with the opposing side before the court hearing. At the conclusion of the hearing, the proposed order may be presented directly to the court if it comports with the ruling of the court. Minor changes may be made in courtroom to the proposed order to conform with the court ruling. Generally, orders should not be drafted in the courtroom.
How should stipulated orders be submitted?
Stipulated orders should be submitted to the circuit court clerk. Note: Make sure attorneys are allowed to stipulate to the subject matter in the order and that it contains all required information. For example, attorneys may not stipulate to modify a scheduling order without prior approval of the court. Attorneys may not stipulate to adjourn dates without new dates in the order and for withdrawal of counsel, the order must state where to mail court documents going forward.
Who makes up your judicial staff and what roles do they play?
Each circuit judge has a judicial assistant (JA) and that person also serves part-time as a court recorder. There are too many responsibilities to outline here, but of significance to the attorneys, the JA is in charge of the judge’s calendar, including setting and removing all dates. The JA reviews all incoming mail, all telephone messages, and transfers all calls to the judge. In addition, the JA responds to all requests from attorneys and in pro per litigants on matters relating to the court docket and reviews all incoming mail before giving it to the judge to avoid ex parte communication. On an alternating weekly basis, the JA is in the courtroom recording the proceedings and, in those instances, is the contact person for transcripts.
Each circuit judge also has an attorney law clerk (ALC) who performs a wide range of functions. Again, pertinent to the attorneys, the ALC is the contact person for jury instructions, motions, and requests for in-chamber conferences. The ALC is in the courtroom whenever it is in session and is responsible for checking in matters on the docket and making sure the files are in the courtroom.
What types of pretrial conferences do you hold and what happens at them?
For family law cases, the scheduling conference is held at the beginning of the case and is used to determine issues in dispute, set deadlines, and provide guidance. The final pretrial is held after discovery and mediation to determine what issues remain unresolved and to set a trial date.
For criminal cases, status conferences occur the third Thursday of each month following bind over. At the status conference, the case is discussed, including possible resolutions and whether any pleas may be taken. A second status conference may be scheduled to allow more time for discovery. A trial date is set when the parties indicate a trial is needed. The pretrial is held approximately ten days before the trial. At that pretrial, initial jury instructions are finalized and a rough draft of closing instructions are given. The prosecutor and defense’s witness lists are reviewed and discussed as well the exhibit lists. Motions in limine are also heard if proper evidence has been sent. The court will seek stipulations regarding the foundation for exhibits when appropriate. A time line for the trial will be given, meaning start and end times for each trial day.
In civil cases, as with domestic cases, scheduling conferences are held for each case after the answer is filed to determine issues in dispute, set deadlines, provide guidance, and set a pretrial and trial date. At the pretrial, jury instructions will be finalized and exhibit and witness lists are reviewed. The court will seek stipulations regarding the admission of exhibits, and the trial schedule will be finalized.
What types of matters/motions are held via Zoom and which are held in person?
The court follows MCR 2.408(B) for civil cases. Criminal cases are very limited in the use of Zoom and require the defendant to waive their right to appear in person. The defense attorney must also be on Zoom to allow for break-out sessions with their client. Generally, it is only used when the defendant is incarcerated somewhere else in Michigan.
What are some components of an argument (either in a brief or oral argument) that you find compelling or persuasive?
Attorneys that cite a court rule, statute, or published case in support of their requested relief. It is amazing how many attorneys simply argue for what they want without citing any authority, as if everything is within the court’s equitable power regardless of the type of case. I find it very persuasive when an attorney will cite authority that initially would appear to be against their position but then distinguish it.
What procedural issues/disputes should be worked out between the parties before involving you?
Discovery, enforcement of judgments, and foundation requirements for exhibits.
What are some common mistakes lawyers make in your courtroom, either while appearing in person or remotely?
· Not being on time, if you are not 15 minutes early, you are late.
· Failing to make sure their equipment and their client’s equipment work for a Zoom hearing.
· Failure to cite authority for their position (court rule, statute, published case).
· Failing demonstrate or ensuring their clients show proper respect for the court.
What do you think is the most commonly misinterpreted court rule or rule of evidence?
Alternate Service (MCR 2.105(J)(1) and (2)) and Ex Parte Orders (MCR 3.207)
What is an example of a time a lawyer impressed you?
The majority of attorneys who practice in my courtroom are excellent attorneys, and it would be hard to single out any one example. With that said, if the attorney wants to impress me, show up on time, be prepared, and demonstrate civility and respect towards their opponent and the court.
What is something interesting you do off the bench?
Not sure it is interesting, but I enjoy golf, doing things with my family, traveling, and spending time at our place up north.
Is there anything else you would like Michigan lawyers to know?
I would remind them what we do matters. As lawyers and judges, we are the guardians of the rule of law and the protection of individual rights. By the very nature of what we do, who we represent, and the actions we take, our profession is not always popular or understood. Yet, we must never forget that our democracy depends on the integrity and belief in a fair and independent judicial system. At a time when we face unfair criticism and scrutiny from both sides of the political spectrum, it is important to remember why we chose the law. I would ask them to remain faithful to the oath we all took and the fundamental tenets of this honorable profession.