Hon. Elian E. H. Fichtner was appointed by Governor Rick Snyder to the 70-2 District Court in Saginaw County in April 2018. Before her appointment, she was in private practice for 12 years with Smith Bovill, PC, focusing on probate and estate planning with an emphasis on elder law and elder care issues. In 2021, Judge Darnell Jackson, Chief Judge of the Saginaw County Trial Courts, appointed Judge Fichtner to serve as Presiding Judge of the 70th District Court. Judge Fichtner currently runs the Saginaw County Mental Health Court and has served on a number of boards and commissions throughout the state of Michigan and Saginaw County. She is a member of the Probate and Estate Planning Section and the Elder Law and Disability Rights Section of the State Bar of Michigan.
For attorneys who have never been to your court, what is your check-in process?
If the hearing is being held in person, the attorney should come to court approximately five to ten minutes before and check in with the bailiff, clerk, or recorder. Normally the bailiff will be present and check in the attorneys/parties, but all three are usually physically present in the courtroom and can assist with the check-in process. (It is much appreciated for the attorney to share this information with the client, so both are ready to go.)
If the hearing is being held via Zoom, the attorney should log in five to ten minutes prior. The attorney should make sure their name appears correctly. It is helpful to include the case number. For example, “Attorney Joe Doe appearing for Ann Smith on 22-1234-GC.” Either the bailiff, clerk, or recorder will admit the attorney/party to the virtual courtroom and ensure that video and audio are functioning. The attorney should instruct the client to also log in approximately ten minutes early to ensure proper functioning of audio and video.
When is your motion call? Are there a maximum number of motions heard during motion call?
There is not a set motion call day as one might expect in circuit court. Attorneys will need to contact the court clerk for a date and time on the motion.
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?
When I was in private practice, my mentors always told me to prepare, prepare, prepare, and then prepare some more. They also shared that it would be to my client’s advantage if I was able to leave court with a signed order from the judge at the time of the hearing. I found this to be true in practice and often came to court with multiple versions of a proposed order as well as a blank order to modify in writing if appropriate. Now, as a sitting judge, I encourage attorneys to submit proposed orders along with their filed motions and/or to bring proposed orders with them to court. Being able to sign an order at the time of the hearing alleviates the need to submit under the seven-day rule per court order and enables the attorney to walk away with immediate relief. Unfortunately, we do not have computers available in the courtroom for drafting.
How should stipulated orders be submitted?
Stipulated orders should be submitted to the respective division (civil or criminal) with a cover letter requesting submission to the judge for signature. It’s always a good idea for the attorneys to follow up with the judge’s clerk to confirm receipt and/or to put the clerk on notice, so she can be on the lookout for the stipulated order.
Who makes up your judicial staff and what roles do they play?
I am blessed to have an amazing team of clerk, bailiff, and recorder. While each fulfills separate and distinct roles, they work together extremely well as a team:
- The clerk (sometimes referred to as a judicial assistant or JA) keeps the show running. She handles the intimate daily operations of my court from scheduling matters, speaking with attorneys and unrepresented parties that contact my court directly, generating paperwork consistent with courtroom activities (bond paperwork, discharges, orders, etc.), as well as a myriad of office assistance.
- The bailiff maintains the order, safety, and security of the courtroom and all individuals within. He is responsible for taking an individual into custody from the courtroom and working with the Sheriff’s Department to oversee transport to jail when necessary. He also assists deputies with transporting individuals in custody to the courtroom from the jail or secure locations within the courthouse. He assists the clerk with retrieving files/cases for any day’s docket, ensuring that documentation is signed by the judge and included within the hardcopy file. He also assists with filing notices of hearings or appearances as needed.
- The recorder ensures that all proceedings in open court are properly memorialized by way of recording and oversees the transcription of certain hearings upon request. She is primarily in charge of the civil docket and will fill in along with the clerk and bailiff for any other type of office assistance.
What types of pretrial conferences do you hold and what happens at them?
I hold pretrials for all civil, criminal, and traffic matters. Generally, this is the first opportunity for the plaintiff and defendant to discuss the matter in civil cases. If the pretrial is occurring on Zoom, we’ll place the parties in a breakout room to see if they can come to any resolution. If the case does not resolve, I’ll hold a formal pretrial with the parties and enter a scheduling order to control the progress of the rest of the case. concluding with trial.
In criminal/traffic matters, the pretrial is likewise an opportunity for defense counsel/defendant and the prosecutor to discuss the case. Often, the matter will resolve by a plea at the pretrial. If not, we identify outstanding issues (need for discovery, need to continue to bench or jury trial, etc.). If the criminal/traffic matters don’t resolve, they are set for a final pretrial/jury trial as appropriate. Some of the assaultive type cases (assault and battery or domestic violence) may be set for a bench trial without waiver of jury trial, and then alleged victims/witnesses are subpoenaed for the bench trial. Some of these cases are dismissed without prejudice for lack of alleged victim or witness. These are similar to requiring alleged victims/witnesses to be present at final pretrials. On occasion, alleged victims/witnesses will appear and provide sworn testimony regarding their desire not to proceed. Those cases are then dismissed with prejudice. In other cases, we determine that it’s necessary to proceed to trial. The defendant is then given an opportunity to reinstate their right to a jury trial or will formally waive it and elect to have a bench trial.
What types of matters/motions do you hold via Zoom, and what are some common mistakes lawyers make?
Zoom hearings are great for initial pretrials, preexamination conferences, and the initial setting for landlord/tenant matters to name a few. Most attorneys and parties prefer to have any evidentiary hearing or hearing of substance take place in person. Zoom is utilized by agreement, and only when it does not involve an unfair advantage for either side.
By now, attorneys are well accustomed to Zoom. Toggling back and forth between more than one virtual courtroom at a time can be challenging, but most attorneys handle these issues with grace and balance. Another potential issue is when an attorney’s client is not Zoom ready due to audio and video issues. The most important thing is to treat Zoom hearings with the same formality as if appearing in person in the courtroom, including attire, attitude, and preparedness.
What are some components of an argument (either in a brief or oral argument) that you find compelling or persuasive?
This may seem obvious, but I really appreciate it when attorneys are prepared and can cite to the court rules, statutes, or caselaw in support of their position. I also respect attorneys for being able to acknowledge their position’s weaknesses and to try and distinguish for the court why I should find in their favor. I expect attorneys to remain civil and respectful with one another even while zealously advocating for their respective client or position.
What procedural issues/disputes should be worked out between the parties before involving you?
Requests for adjournments.
What do you think is the most commonly misinterpreted court rule or rule of evidence?
Hearsay and exceptions to hearsay.
What is an example of a time a lawyer impressed you?
We have many skillful attorneys in our county—a couple come to mind for their ability to run a preliminary exam in an orderly fashion, often using a binder with tabs outlining their exam and exhibits. These attorneys also treat sensitive witnesses (often alleged victims) very delicately while simultaneously narrowing in on the testimony to be offered.
Is there anything else you would like Michigan lawyers to know?
I’m a very approachable person, and I’m happy to talk with new attorneys and help them along in their careers. I was lucky to have some incredible mentors in my life who encouraged me along the way and were never too busy to answer a question or assist me with the issue at hand. I’d be happy to pay it forward!