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Q&A with Judge Avery D. Rose, Kent County Probate Court

By Nicole S. McNair posted 05-06-2024 09:14

  

Judge Avery D. Rose took the bench on January 1, 2023. Prior to taking the bench, Judge Rose was appointed to serve as the probate register for Kent County in 2019, where he oversaw the administration of the Probate Court and the Kent County Guardianship Program. Prior to that, in 2015, Judge Rose was named as the probate register at the Allegan County Probate Court, where he also served as an attorney/referee. During his tenure in Allegan County, Judge Rose also served as the President of the Allegan County Bar Association, participated in the Allegan County Community Corrections Advisory Board, served as board member for the Allegan County Legal Assistance Center, and represented the 48th Circuit as a representative on the Representative Assembly of the State Bar of Michigan. Judge Rose earned his juris doctorate from Wayne State University Law School and obtained a master of library and information science degree from Wayne State University.

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

If appearing in person, attorneys should check in with the judicial clerk in the courtroom and indicate the party for whom they are appearing. If appearing via Zoom, the attorney should list their name, the party for whom they are appearing, and the name of the case when logging in. As stated on the court’s Notice of Hearing forms, attorneys should appear with their clients via Zoom 15 minutes before the hearing time.

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

The court has a total of five motion calls per week, one of which is a docket call dedicated to developmentally disabled (DD) guardianship matters and is held on Wednesday mornings. The other docket calls cover a variety of case types, and they are heard on Monday and Wednesday afternoons (with me) and Tuesday and Thursday mornings (with Judge Murkowski). At most, these docket calls will have up to eleven matters scheduled.

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? 

There are no public computer stations available for drafting orders. Proposed orders should be prepared and filed with the motion or petition that has been scheduled for hearing. Preparing orders prior to hearing is a helpful and efficient practice. It demonstrates to the court that the attorney is prepared for the hearing and provides an avenue for the issuance of an order immediately following the hearing, which ultimately benefits the movant/petitioner. Typically, the court will treat a proposed order sent to the clerk via email on the same day as the hearing as a contemporaneously filed proposed order under MCR 2.602(B)(1).

How should stipulated orders be submitted? 

Stipulated orders should be filed with the Kent County Probate Court clerk’s office, like all other pleadings. If the signature line for the judge is isolated on the last page of a stipulation and order, be sure to include the file name and case number at the top of that page, and page numbers at the bottom.

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

Each probate judge has two judicial clerks. In addition to recording hearings and acting as the clerk during hearings, judicial clerks perform a number of other important functions for the court, including helping review files prior to hearings, preparing orders, and scheduling contested hearings. 

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

In contested cases, particularly in trust matters, civil actions, and disputed deceased estate proceedings, the court will routinely conduct a scheduling conference to permit discovery, set deadlines, and schedule trial dates. These scheduling conferences are off the record. Attorneys should be prepared to provide a summary of their case and answer any questions the court has about the facts of the case or applicable law.

What types of matters/motions are held via Zoom and which are held in person?

The court conducts most hearings in a hybrid fashion (via Zoom and in person), pursuant to MCR 2.407 and MCR 5.140, giving participants the discretion to choose the manner of their attendance. For contested evidentiary hearings, bench trials, and jury trials, the court typically requires parties to attend in person.

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

Attorneys who are able to make the most compelling and persuasive arguments come to court prepared to explain their position and request relief in a cogent fashion, to address the weaker points of their arguments, and to support their requests with applicable and persuasive authority, whether it is based in statute, caselaw, the court rules, or the rules of evidence. Also, remember that a motion or response that presents an issue of law must be accompanied by a brief, pursuant to MCR 2.119(A)(2).

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

In general, “picking up the phone” to resolve disputes amongst the parties before filing a motion or involving the court is of immense value. Doing so will often avoid unnecessary litigation and enhance the attorney’s reputation as a problem solver. During the pendency of the case, attorneys should seek to resolve discovery issues and, prior to trial, resolve outstanding evidentiary issues before involving the court.

What are some common mistakes lawyers make in your courtroom, either while appearing in person or remotely?

Attorneys should log in 15 minutes before the hearing, dress appropriately, ensure that their technology works, avoid distracting backgrounds if appearing via Zoom, and ensure that clients/witnesses are able to connect via Zoom as well (specifically to ensure that these individuals understand how to connect their audio, unmute, and start their video on Zoom). 

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

Commonly misunderstood or ignored court rules include the following:

       MCR 1.109(E)(2)(b) – Attorneys can sign documents on behalf of their clients, except for inventories, accounts, acceptances of appointment, and sworn closing statements.

       MCR 2.107(G) – Once a disposition is entered in a case, parties are exhorted to use email service “to the greatest extent possible.” Email service is cheaper than traditional mail and constitutes personal service (a shorter service timeframe).

       MCR 5.113(A) – Parties must use an SCAO form if one is available.

       MCR 5.117 – Attorneys represent the fiduciary, not the estate.

       MCR 7.215(C) – If a party cites an unpublished Michigan Court of Appeals opinion, a copy of the opinion must be attached to the party’s pleadings.

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

I had an extremely challenging trust matter with parties who were diametrically opposed to one another, which the attorneys worked diligently to settle out of court. I appreciated all of the time and effort the lawyers put into the case to bring their clients together with an agreement their clients could live with. For me, these are the biggest victories for attorneys and their clients. Often the most important work an attorney does is outside of my view, including managing client expectations, educating clients, communicating with opposing counsel, and improvising creative solutions. 

What is something interesting you do off the bench?

I enjoy playing guitar and recently began learning to play the banjo, which has been a lot of fun.

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

As a profession, lawyering can be stressful, thankless, and challenging, but the service of honest and hardworking attorneys is invaluable to our communities and our system of law. I’d like to thank the lawyers reading this column for their important work, and I look forward to seeing some of them in my courtroom in the future.

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