Blog Viewer

Q & A with Judge Phyllis C. McMillen, Presiding Judge of the Civil-Criminal Division of Oakland County Circuit Court

By Matthew J. Franson posted 08-10-2022 16:44

  

Judge McMillen Headshot


Hon. Phyllis C. McMillen is the presiding judge of the civil-criminal division of the Oakland County Circuit Court. Judge McMillen previously served as a judge of the 51st District Court in Waterford. She is the past president of the Michigan District Judges Association and the Oakland County District Judges Association. In 2005, Judge McMillen received a Special Recognition Award from the Executive Office of the President, Office of National Drug Control Policy, for her pioneering work in creating sobriety courts. She is a lecturer, contributing author, and faculty member for various state and national organizations. Judge McMillen serves on various executive and advisory boards, including the Michigan Association of Drug Court Professionals and the Oakland Livingston Human Services Agency.

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

For in-person hearings, there is a sign-in sheet at the podium in the courtroom. If that isn’t there, let my court clerk know your name and which party you represent.

For remote hearings over Zoom, we ask that attorneys change their username so that the case number they are appearing on is first and their name second. I use a waiting room, so this really helps organize the parties.

Whether in person or over Zoom, my staff sends out a docket sheet in advance of the hearing with the specific hearing time. I typically start at 8:30 a.m. with each case scheduled in 10- or 15-minute intervals.

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

Motions are heard between 8:30 a.m. and noon on Wednesdays. We issue a notice several days in advance of the Wednesday motion call with the docket of all motions set for that day attached. There is no maximum number of general motions, but I limit  summary disposition motions to five per week. This allows me to thoroughly read each submission and provides enough time to draft a written opinion. To obtain a hearing date on a motion for summary disposition, lawyers should contact my staff attorney who will set a briefing schedule and the hearing date. Expect about five weeks from the filing of the motion to when the hearing is scheduled.

I try to be as efficient and proactive with the docket as possible and use Wednesday morning for motions that are actually contested. If the attorneys need an adjournment of their scheduling order, they should file a stipulation and order requesting an extension for the number of days they need. A motion is not required. My clerks will issue an amended scheduling order.

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

I always hold early scheduling conferences approximately 175 days after the complaint has been filed. By then, the parties have exchanged initial disclosures, and discovery has begun. At this point, the attorneys should know approximately how long a case is going to take to litigate and whether there are any discovery issues. I also use this time to determine which form of ADR the parties want and enter the appropriate orders. Attorneys get an opportunity to meet each other and exchange cell phone numbers, and can resolve many procedural issues. The automatically scheduled hearing date appears on the scheduling order, the case management order, and the notice of hearing time mentioned above.

I will also hold a final pretrial conference. These were previously scheduled two weeks before the trial date, but as dockets got backed up, we started holding them six weeks before the trial date. We use this date to do a final sorting of cases and to establish a firm trial date. I found that this timeline allows the parties to get out subpoenas, take de bene esse depositions, and clear up any issues before trial. I require the parties to submit a joint final pretrial order at the conference. I also require facilitation for all civil cases, which must be concluded within 60 days of the close of discovery but definitely prior to the final pretrial conference.

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

I have a judicial assistant/secretary that runs the criminal docket, including all of the scheduling. Our criminal docket is geared toward rehabilitation and reducing recidivism. My assistant has been an incredible resource for me and the defendants, as she has developed relationships with the agencies we use for screening and assessment, treatment and monitoring, as well as the defense bar and prosecutors who know they can rely on her to make things happen.

I have two court clerks who handle the flow of litigants in and out of both the live and virtual courtroom and  make necessary entries into the computer system and process all the courtroom paperwork.

Lastly, my research attorney assists with a variety of legal issues. Most of her time is spent on motions for summary disposition.

What types of matters/motions are held remotely via Zoom?

Almost all of my civil hearings, conferences, and motions are held remotely. For criminal cases, if the defendant is not incarcerated, then the hearing is typically conducted via Zoom, although the litigants or I may decide to hold the hearing live. If the defendant is in custody, the sheriff now requires us to hold those hearings live.  All trials are being conducted in person.

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

Because we stagger Zoom hearings every 10 or 15 minutes and use a waiting room, clerks have to monitor the waiting room to see when all parties to a case have entered. The problem is that we need a means of identifying who is appearing on a given case. It doesn’t help us to know that “Harry’s iPhone” has joined the waiting room, when we don’t know who Harry is or what case he wants to appear on. So, we are continually having to stop proceedings, wait for “Harry” to connect, and find out exactly who he is and what case he wants to appear on.

To make it easier for the clerks to identify participants, we ask the attorneys and parties to name themselves by listing their case number first, followed by PL or DF, and then the person’s last name. This renaming can’t be done once you are in the waiting room, it has to be in the window where you enter our personal meeting room number.

We have discovered that if you are joining Zoom using the web browser (zoom.us), you don’t have that function, so we encourage litigants to download the (free) Zoom app. 

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

I have to have authority for every holding. There are laws and rules that cover  everything you are asking the court to do. I often hear, “this is how we’ve always done it.” That’s not enough. If you are asking the court for relief, cite the rule, statute, or case that supports your position.

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

Discovery issues. I understand that there are times that filing a motion is necessary, but most discovery and scheduling problems should be worked out between the attorneys. You all know the court rules. The attorneys should also make sure that the pleadings align with the claims being made and the parties involved. This will save time and headaches down the road.

Any other common mistakes lawyers make in your courtroom?

Citing to nonauthoritative sources, such as other district or circuit courts. Attorneys should only cite to appellate-level decisions. Also, being argumentative and combative is rarely helpful to your case. The most influential attorneys present their arguments in a calm, organized, and thoughtful way. Similarly, I always suggest that attorneys stay away from too much hyperbole, both in written submissions and during oral argument.

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

There are so many great attorneys that practice before me and throughout Michigan. In general, the best attorneys are calm, well prepared, have the evidence at their fingertips, have a well-organized trial binder with tabbed exhibits, and are rational thinkers. Once an attorney raises their voice and makes personal attacks on the other side, I start to have a more difficult time listening to that attorney's arguments.

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

MRE 404(b) and other rules of evidence regarding impeachment will sometime trip up attorneys.

What are some of your hobbies that you have off the bench?

I’m an avid downhill skier. I’ve even gotten my grandkids, the youngest being two, interested in the sport! In the summer, I love water sports.

0 comments
71 views

Permalink