Blog Viewer

Q&A with Judge Carol Anne Kuhnke, Judge of the 22nd Circuit Court

By Lisa F. Geherin posted 10-03-2022 08:26

  


Hon. Carol Anne Kuhnke was elected to her judgeship in 2012 and took the bench in 2013. She is currently the Chief Judge of the Washtenaw County Trial Court and 14A District Court. She hears civil, criminal, adoption, and parental waiver cases, and she started and presides over Drug Treatment Court. Prior to her judgeship, she worked in large and small firms before founding the law firm of Davis & Kuhnke PC in 1997. She worked in civil litigation for 19 years before becoming a judge. Judge Kuhnke has been active in numerous legal and community organizations. She belongs to the American Judges Association, Michigan Judges Association, Michigan Association for Justice, the International Association of LGBTQ+ Judges, the Washtenaw County Bar Association, and the NAACP Ann Arbor branch. Before taking the bench, Judge Kuhnke served on the Washtenaw County Board of Election Canvassers. She served 13 years on the Zoning Board of Appeals for the City of Ann Arbor, six years as the chair, and upon taking the bench she was proclaimed Retired Emeritus Chair by Ann Arbor Mayor John Hieftje.

 

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

 

For both in-person or Zoom appearances, the first step is to check in with the clerk. With Zoom hearings, the clerk will message the lawyers, and they should have their name and the case name or number in their identifying information at the bottom of their Zoom window.

 

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

 

Motion call is every Tuesday at 1:30 p.m. for the criminal docket and every Wednesday at 1:30 p.m. for the civil docket. In theory, I have a motion limit, but I rarely enforce that. I just started limiting summary disposition motions since I am also handling Retired Judge Archie Brown’s civil docket, but I don’t have a limit for other types of motions.

 

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?

 

I don’t typically require proposed orders to be drafted in advance, nor do I require an order to be drafted in court. That process can be difficult for Zoom hearings as well. It is easier on my staff and me if lawyers submit an order under the seven-day rule or stipulate as to form. My preference is to have stipulated orders submitted electronically through MiFile. Doing so ensures that the lawyer is notified once the order is signed. I will still accept an order submitted via hard copy or emailed, but lawyers do not get notice when it is signed.

 

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

 

My judicial coordinator answers the phone, handles customer inquiries about process and protocol, maintains the paper files on criminal cases, and sometimes handles scheduling conferences.

 

My judicial attorney prepares the civil docket, flags items that require extra time, and generally makes sure I am prepared and know what to expect for that day. They handle settlement conferences as well.

 

They are able to cover for each other and work well together. We all work as a team to make sure there is coverage as needed. No one on the team is above handling a task and that includes me as well. I have been known to answer the phone from time to time.

 

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

 

Criminal pretrial conferences happen at various times throughout the case, and the number of conferences can vary depending on the case. Some cases need weekly conferences, some need to meet less often. I try to make sure there is flexibility in this docket. It is not unusual to have eight to ten pretrial conferences in one case.

 

In civil cases, there is the scheduling order conference and the settlement conference, but that can also be a pretrial conference. My judicial attorney handles those conferences and can facilitate adjournments if parties want them.

 

The scheduling order no longer requires case evaluation, but I have found it helpful to hold an event that requires parties to complete discovery, tie up loose ends, tell their story, and look at the big picture. The majority of the time now, facilitation is that event.

 

Although my judicial attorney handles settlement conferences, I will handle them as well, especially in cases where the lawyers want the judge’s perspective on the case, so long as the case is not proceeding to a bench trial.

 

How are you using Zoom in your courtroom?

 

Lawyers have the option to appear in person or via Zoom. Other than trials, there really isn’t anything that cannot be done via Zoom. Lawyers like to appear in person for hearings where there are multiple exhibits or where there is concern that a party may be influenced behind the scenes. But even if the lawyers prefer to appear in person, I will grant an exception to appear via Zoom if a witness is going to have a difficult time appearing in person.

 

I believe the Zoom option is here to stay. Although it is harder on the court and on my staff, I feel better knowing that lawyers who are waiting for their case to be called can multitask while they wait. There are no real differences in hearing efficiencies between Zoom and in person. Just like in-person hearings, lawyers and their clients in Zoom hearings see everyone who is appearing on that particular docket. That way, newer lawyers or lawyers who are new to a litigation practice can benefit from seeing lawyers who are prepared and know proper courtroom etiquette as well as those who are not prepared.

 

What are some of the common mistakes/issues you see attorneys making when attending court via Zoom?

 

In general, the lawyers I see are doing a pretty good job with Zoom appearances. If they have not figured it out by now, chances are not good for them.

 

In terms of issues, I am seeing an increase in late responses to motions for Zoom hearings. For in-person hearings, if a lawyer files something in person and brings a copy to the court, I can review it (time permitting) right up to the time my docket starts. But when filing electronically and appearing by Zoom, late responses don’t always get to me, so I am unable to consider them. Timeliness is important.

 

I do understand that lawyers are busy and that sometimes it is unavoidable to file a late response. I look at those situations case by case and will either consider the tardy response in my ruling or adjourn a hearing to provide more time to respond. But I will not offer an adjournment if the delay is going to prejudice a party and there is no other way to cure the impact of the late response.

 

What are some components of an argument (either in a brief or oral argument) that you find compelling or persuasive?

 

I always appreciate when a lawyer mentions bad facts or caselaw that is against their position. When lawyers fail to do that, I am often left wondering if I am missing something or if there is something I am not being told. Lawyers who disclose bad facts or contrary authority demonstrate they are not afraid of them and typically distinguish them or make compelling arguments as to why they do not apply. It seems to me that about half the litigators who appear before me are up front about their bad facts or contrary authority.

 

What procedural issues/disputes should be worked out between the parties before involving you?

 

Any discovery-related disputes should be worked out in advance if at all possible. Try to bring me only the issues you cannot resolve.

 

Any other common mistakes lawyers make in your courtroom?

 

Lawyers confuse refreshing recollection and impeachment. I have a Michigan Lawyer’s Weekly article from ten years ago that I pass out to lawyers who do this. Conflating impeachment with refreshing recollection with a hostile witness can really diminish the “wow factor" the lawyer was going for as it allows the witness to explain too much.

 

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

 

Hearsay is always problematic. When faced with a hearsay objection, the moving party frequently does not know what exception to cite or understand how to demonstrate why the testimony is not hearsay.

 

I take my time with evidentiary rulings. I may not always be ready to rule, and when that happens, I will research to make sure my ruling is the correct decision. I think the lawyers who appear in front of me appreciate that. Knowing that I am likely to research something keeps them on their toes as well.

 

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

 

Lawyers impress me all the time. Good lawyers are so prepared, they know their cases, are honest with the court, prepared for objections, know how to respond, and might even have caselaw at their fingertips. I am impressed with the high level of practice in Washtenaw County.

 

In terms of a specific example, I can recall a time when a lawyer violated an order not to speak to a witness. There had been a motion hearing, the issue was briefed, and there was an order in place. The lawyer came into court and said he was not on the case when the order was entered, but he acknowledged that was still no excuse and threw himself on the mercy of the court. The violation of that order could have been a sanctionable event, but it was refreshing to see that the lawyer accepted responsibility.

 

What is something interesting you do off the bench?

 

I love live music and going to concerts. I had not been able to see any for a long time and recently got to see Elton John and Brandi Carlile. I enjoy the outdoors—fishing, hiking, gardening, anything outside. I love to travel also, primarily to warm places.

 

Is there anything else you would like Michigan lawyers to know?

 

I want Michigan lawyers to know that I want to hear from them. I want to hear if they have a problem with how the court operates, or if they think we are doing something right. Either way, I appreciate it when lawyers contact me. We are all in this together, and things work so much better when we communicate.

 

0 comments
74 views

Permalink