The Hon. Charles S. Hegarty was appointed to the 3rd Circuit Court (Wayne County) in 2013 and was assigned to the Domestic Relations Section of the Family Division. Since January 2021, he has served in the Civil Division. He joined the court from Bodman PLC, where he spent 15 years litigating civil actions and represented clients in commercial, real estate, tort, and trusts and estates matters. In 2013, he was recognized as a Michigan “Super Lawyer” in Business Litigation. Judge Hegarty is a fellow of the Michigan State Bar Foundation and a member of the State Bar of Michigan and the Detroit Bar Association.
Are you still using Zoom? If so, what types of matters/motions are held via Zoom?
At present, I conduct nearly all proceedings via Zoom. While I may request that counsel, parties, and insurance professionals personally appear in Courtroom 1921 for settlement conferences, thus far, only jury trials require in-person attendance. I have presided over scores of Zoom bench trials. Although some judges are champing at the bit to return to pre-pandemic courtroom life, I find that Zoom affords great benefits. In addition to safety considerations, especially for the vulnerable, the savings in time and money are significant.
What are some of the common mistakes/issues you see attorneys making when attending court via Zoom?
There are two primary issues—a lack of preparation and inadequate Zoom competence. No attorney should attend a Zoom proceeding without first conducting a practice meeting with those who might need to attend. Also, attorneys must achieve sufficient proficiency with Zoom to fully participate in proceedings. Of course, this obligation of competence can be fulfilled by hiring appropriate assistance. I encourage counsel to learn how to present a document using “share screen” (which includes knowing how to turn off alerts so that nothing pops up on the screen) and how to upload a document into the chat feature so the other Zoom participants can download it.
For attorneys who have appeared in your courtroom, what is your check-in process?
Although many matters are initially assigned a 9:00 a.m. start time, I do not conduct a Zoom cattle call. Instead, my judicial attorney emails counsel the day before the hearing with a discrete start time. Of course, counsel should be ready to start on time but be prepared for delays. Feel free to visit the YouTube page to ascertain the status of prior matters: https://youtube.com/channel/UC7iXv9CgMeY4F769lmtzb8A.
Not later than ten minutes before the scheduled hearing, counsel should join the meeting and check in with my judicial attorney. Counsel will be placed into a breakout room to discuss the case before it is called.
When is your motion call? Are there a maximum number of motions heard during motion call?
Although Friday is motion day, I will hear motions on other days. Dispositive motions and motions in limine are not heard on Friday mornings. My judicial attorney controls the scheduling of motion hearings.
What are your thoughts on the case evaluation changes?
There are concerns with the elimination of sanctions—MCR 2.403(O)—from a practical standpoint, especially when it comes to first- and third-party auto cases in Wayne County Circuit Court. Here, a significant percentage of such cases are resolved at or near the case evaluation figure. If this percentage drops appreciably, then, inevitably, the length of time to get to trial will increase.
What should attorneys know about settlement conferences in your courtroom?
The first settlement conference after case evaluation, absent an order to the contrary, will be conducted via Zoom. Counsel must be prepared to discuss ADR.
As for each settlement conference thereafter, unless excused in advance by yours truly or directed to attend in person, trial counsel and all persons having settlement authority up to the amount of the other side’s demand, as well as the authority to make decisions about ADR (e.g., arbitration), must participate via Zoom with camera activated. Be prepared. This requires—in advance of the settlement conference—frank discussions with all counsel of record. Read the settlement conference order. If you don’t, you may be surprised.
What are some components of an argument (either in a brief or oral argument) that you find compelling or persuasive?
All judges appreciate when an attorney begins oral argument by identifying issues that have been resolved and undisputed facts.
As for written argument, each motion must state in numbered paragraphs the facts and law upon which the moving party relies as well as the relief requested. And the response shall either admit or deny with explanation each numbered paragraph. Your judge will be grateful if you include, at the start of the motion brief or reply brief, a four to six sentence executive summary of your argument.
What is an example of a time a lawyer impressed you?
I recall two lawyers in an employment matter, with significant law and fact-driven briefing, who each did an excellent job of making concise oral argument. Each argument was distilled to its essence. Counsel for movant stated, “I want the court to do A, and the court should do so because of B, C, and D.” And the response was, “The court cannot grant that relief because of X, Y, and Z.”
Trial court judges encounter a fair amount of redundant and superfluous argument. When asked about closing argument during a bench trial, I responded to the effect that shorter is better and joked that I preferred a haiku. One lawyer obliged and left a favorable impression.
What do you think is the most commonly misinterpreted court rule or rule of evidence?
I am surprised how often attorneys request summary disposition under MCR 2.116(C)(8) (failure to state a claim) when the subject of the motion is the evidence and not the pleadings. See MCR 2.110(A). Such a motion should be brought under another subpart, usually MCR 2.116(C)(10) (no genuine issue of material fact). The court of appeals regularly reverses and remands when it appears a trial court judge has conflated subparts (C)(8) and (10).
Any other common mistakes lawyers make in your courtroom?
At a judicial conference this past summer, concerns were raised regarding maintaining order during Zoom hearings. If, while on the record, you talk while I am talking, you will receive a warning. If you persist, you will be muted. I have a duty to ensure a clean record. When an attorney talks over the judge or counsel, that attorney may impair the client’s ability to appeal. Sometimes attorneys interrupt when I’ve asked a question of opposing counsel. Don’t interrupt. Please wait your turn. If you absolutely must interrupt, try waiving a hand, and I may call on you.
What is a fun fact about you or something interesting you do off the bench?
I consider Police Squad! one of the best TV shows ever.
Is there anything else you would like lawyers to know?
Consider whether to stipulate that case evaluation will be subject to sanctions under the recently deleted MCR 2.403(O). In many cases, primarily first- and third-party auto cases, the possibility of sanctions will encourage each party to think twice before rejecting a case evaluation award.
Although rarely undertaken, bifurcating trial of liability and damages may save significant time and money as well as aid in settlement. I presided over a case in which a jury trial appeared inevitable. Counsel stipulated to a bench trial on liability only. After my ruling, the parties settled.
When seeking attorney fees, state the basis for deviating from “the American rule” and submit a supporting affidavit that, for each timekeeper, addresses the factors of MRPC 1.5(a) and Smith v Khouri, 481 Mich 519, 528-530, 751 NW2d 472 (2008) as well as the current State Bar of Michigan Economics of Law Practice Survey.