Judge Tracy Van den Bergh took the bench on January 1, 2021, where she currently hears general civil cases and Child Protective Proceedings. Before practicing law, Judge Van den Bergh earned her Bachelor’s and Master’s degrees in social work from New York University. As a clinical social worker and Mental Health Director, she diagnosed and treated children, adults, and families struggling with substance abuse and mental health issues. Motivated to address related issues in the legal system, Judge Van den Bergh subsequently earned her Juris Doctor from Michigan State College of Law.
As an attorney, Judge Van den Bergh focused her practice on high-conflict litigation and serving particularly vulnerable individuals and families. She served in the office of the Michigan Attorney General, where she managed complex litigation in the Health, Education, and Family Services Division. For eight years, she also provided comprehensive legal services to over 1,000 disadvantaged Washtenaw County residents as a staff, and later a supervising attorney at Legal Services of South Central Michigan. At LSSCM, she simultaneously served as a Field Instructor for Eastern Michigan University’s School of Social Work. Judge Van den Bergh belongs to the Michigan Association for Justice, Michigan Judges Association, Women Lawyers Association, and NAACP-Willow Run Branch. She also works with several animal rescues, rehabilitating and fostering homeless dogs.
Where can lawyers find your courtroom protocols, and what is something that lawyers often miss about them?
You can find my protocols on the Washtenaw Country Trial Court website. Go to my name under Judge Profile. Then to the right-hand side of the screen under important documents, there is a pdf that is called Judge Van den Bergh Courtroom Policies and Procedures. The biggest thing that most lawyers miss is that, unless I note otherwise, my hearings are in person. You must file a Request and Order for Zoom Appearance if you would like a remote hearing. That document is also on my profile page.
For lawyers who have never been in your courtroom, what is your check-in process?
If you are checking in for a settlement conference, go directly to chambers and check in with my coordinator. She will let my judicial attorney know that you are present for the settlement conference. My settlement conferences are run by my judicial attorney.
If you are coming in for a motion, trial, or other in-court appearance, then come into the courtroom and check in with my recorder. Come up when there is a pause during a motion hearing, or during a break.
Are there particular members of your staff that lawyers should contact about certain things?
If you are trying to schedule a settlement conference, my judicial attorney runs the settlement conferences and keeps her own schedule. If you are seeking to reschedule a settlement conference, you should email my judicial attorney and cc my coordinator. Any other scheduling questions should be directed to my judicial attorney, who will coordinate with me. All of these emails are online on my profile page.
What should lawyers know about your expectations and approach to ADR?
I expect that there has been meaningful ADR, and that settlement talks have been exhausted before you go to trial. In terms of facilitation, we put that deadline date in the scheduling order, and it is set out far enough so that the parties have had a chance to complete discovery. Once discovery is complete, you should have a clear understanding of your case, including the pros and cons, and be ready to mediate. You can’t really mediate if you don’t know the strengths and weaknesses of your case, where your clients are, and what they want.
For settlement conferences, all parties are required to be physically present in chambers, including the trial attorneys, adjusters, parties, and anyone else with settlement authority. It is critical that everybody be in the room; we do not allow clients to appear by phone or Zoom. We do make exceptions, but only on a case-by-case basis, and to be clear, they are very rare.
You should not only know your case, but by the time you come in, you should be talking to each other and to your client(s). You should have an idea of what your parameters are, and at the same time be prepared to be fluid about those parameters in terms of dollar amounts. We expect you to be prepared to negotiate. Preparation is the key to successfully settling cases.
What are some common mistakes lawyers make during oral argument?
Not answering the questions I ask, and pivoting instead. This is a source of irritation because I have personally read the briefs, and when I have a specific question, I am asking for a reason. I don’t want to hear something else—I want to hear the answer to my question. It is likely something I want to know to decide your case. That is one big thing.
The other thing is in my court, oral arguments are designed to fill in the gaps. At oral argument, I will ask for your high points and want to hear them. If there is a new case that came out since you wrote the brief that applies to your case, tell me that. What I don’t want is a complete recitation of the brief you filed. Often, I hear lawyers say that they want “to make a record.” That is fair to a point, but to be clear, your record is your brief—it is already in the record. Making a record in person is for things that are not in your brief. I know there are courtrooms where judges are overwhelmed with huge dockets, and it is just not possible for them to read every brief. I am lucky that I have ability to read the briefs. When I come to the bench, I have read everything and am already leaning in one direction. However, my mind has been changed by people during oral argument, especially when there is new or additional information.
What is the best advice you got from a mentor?
There are several pieces of advice I have been given, and they really all relate to the same thing—candor before the tribunal and being careful to preserve your reputation. Clients come and go, but your reputation will follow you throughout your career. So, if you have a reputation for playing fast (and loose) with the rules, that will follow you and it will not help you. Even if your client is banging on the table and insisting you take on an argument that is, frankly, without legal merit, that won’t help you as a lawyer, so don’t do it. Also, if you make a mistake, own it. If you have a bad case, admit to the weakness, then you can pivot to the merits of the case. But if you have bad law or facts, admit, “yeah, that case/fact is an issue.” You will build more credibility, and you will be taken so much more seriously than if you are trying to blow smoke. It just doesn’t help anybody, and while we have a ton of good lawyers, I still see lawyers trying to do it.
Also, if you make a mistake, or your client makes a mistake, admit it. Don’t equivocate, apologize and move on. Everyone makes mistakes, but, as they say, the cover up is often worse than the crime. Don’t make a mistake worse by being dishonest with the court.
What is something interesting you do off the bench?
I ride horses. We didn’t have horses when I was a kid, so I came to this as an adult. I ride dressage, which is horse ballet. It was something I had always wanted to do, but it was cost prohibitive, especially in New York where I am originally from. When I came to Michigan, I saw lots of horses, and it gave me the opportunity to own horses and ride. I have been doing it for some time, and it is a work in progress.
I also have a brand-new hobby. I am in my second year as a beekeeper. I noticed that my yard and garden had no bees, so I took the beekeeping course through MSU. I did not realize how complex beekeeping is and how interesting bees are until sitting through the course.
Is there anything else you would like Michigan lawyers to know?
There is a push from our Michigan Supreme Court and the State Bar of Michigan, in general, regarding civility in the legal profession. We are all human beings, and this is a stressful job; litigation is battle, the parties are literally adversaries. I am not perfect, and I am not going to state that I haven’t had my moments. But try your best to keep civility at the forefront of your mind. Personal attacks on each other in the courtroom are just not helpful to me or you. I don’t like it. Clients and lawyers have things come up—a death in the family or illness, even weddings, and they ask for an extension—don’t be that person that doesn’t agree to an extension for those things. Because the reality is that at some point, you are going to need an extension or a favor.
This also relates to protecting your reputation, and it is just the right thing to do. In my chambers, I would say we give extensions “liberally” when we can. Now, sometimes we can’t. It’s been hard to move trial dates because we are scheduling so far out, but we will try to be as flexible as we can, and I ask people to be as flexible as they can with each other. Try to work those things out. I am hearing from many judges that beginning with COVID, when we all went remote, civility has decreased across the board. This is one of the reasons my courtroom returned to in-person proceedings. I think it is much harder to be nasty to a person when they are standing right next to you. I have seen an improvement in civility now that I have returned to in-person hearings, and I think it also really helps new lawyers to learn. It is just not the same watching a hearing on Zoom.