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Q&A with Judge Donna Howard, 2nd Circuit Court (Berrien County)

By Tala Dahbour posted 06-03-2024 08:56

  

Judge Donna Howard was elected as a district judge to the Berrien County Trial Court on November 4, 2014, and began her term on January 1, 2015. She has served in both the criminal and civil divisions and was appointed by Governor Rick Snyder on July 26, 2018, to the 2nd Circuit Court in Berrien County, where she currently oversees the civil division, problem-solving courts, and the business court. Judge Howard holds a B.A. in Economics from the University of Michigan and a J.D. from Wayne State University Law School. Before her judicial career, she practiced law for 17 years and served as Berrien County Corporate Counsel from 2010-2014. Judge Howard also volunteers with local schools and youth programs. She lives in Royalton Township with her husband, Rich, and their three children. 

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

Generally, attorneys check in with my bailiff or judicial assistant in the courtroom upon arrival (i.e. hopefully a few minutes before the time set for hearing). As soon as all the necessary parties are in place, the case can get called. If appearing remotely, it is also a good idea to log in at least five minutes before the hearing so that the attorney can be brought into court from the virtual waiting room, and the attorney’s connection, audio, and video can be verified.

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

Berrien civil/business dockets run “Motion Mondays” every week, including summary disposition motions. As a unified concurrent jurisdictional court, there are two judges that handle all civil cases (i.e. circuit and district). So, on alternating weeks, one judge will hear motions in district cases, while the other judge hears motions in circuit cases.

Due to time restraints, there is a limit to how many motions can be scheduled for Motion Mondays. General or miscellaneous circuit motions or any district motions are usually scheduled in 15-minute increments, and about five to six of those types of motions can get scheduled. Circuit dispositive motions and those substantively complex or numerous-party motions are usually scheduled in 30- 45-minute increments, and, on average, two to three of those types can get scheduled for the latter part of a Motion Monday docket.

The exceptions to hearing cases on the regular Motion Mondays would be those anticipated to involve an evidentiary/testimonial component, and/or hearings on TRO/preliminary injunctions and any emergency motions. Also, on a case-by-case basis, to facilitate the timely completion of a judge’s docket, a judge may exercise his/her discretion to schedule certain motion hearings or cases on a non-Motion Monday.

3.     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?

It is preferred that proposed orders are presented with the motions so that if the court grants the motion, the orders can be entered immediately from the bench. With that said, we recognize that some motions might be difficult to draft into a proposed order ahead of the hearing, and therefore it is not required. For example, motions which include an alternative request are sometimes difficult to fashion into a proposed order—such as “Plaintiff moves this Court to grant its motion to dismiss, or in the alternative, grant alternative sanctions, including fees and costs, and/or such other relief this Court deems just and proper under the circumstances.” As you can imagine, this type of alternative or multiple relief requested in a motion is unlikely to be drafted into a clear, proposed order before the hearing, which the court can rule and enter without striking sections or adding clarifying language.

The courtrooms do not have computers available to the public or attorneys for drafting orders after a hearing. However, if there is a standard (SCAO) form for an order or notice that can be generated quickly by a court clerk; or, if the attorney has a laptop, and the parties want to wait and attempt to draft an order on a ruling, it can be provided to the court clerk, and either of those might allow for an order or notice to be entered in the courtroom at the time of the hearing. Both of these options though are dependent on the rest of the court’s docket, and staff availability.

4.     How should stipulated orders be submitted?

There is no set requirement, but my stylistic preference, because it makes for a cleaner record and register of action in my opinion, is a separate stipulation and order if the language for both does not fit on one page. If anything, I should note that I am really not a fan of stipulated orders where all the details are only stated in the stipulation, including counsels’ signatures, and the next page simply says “SO ORDERED” with a signature line for the judge. The court speaks through its orders, so I believe the important information should really be in the order, not only the stipulation. Additionally, Berrien County Trial Court is not on an e-filing system yet, so paper copies of orders are presented to the court for signature. When I sign an order that simply says, “SO ORDERED” with no caption, no case number, etc., there is a risk that the page-two order gets separated from the stipulation, and lost or misfiled. Again, I regularly enter these stipulated order, but I will write some reference to a case or add the subject of the order to the title (eg. order for dismissal, order regarding discovery, order for amended scheduling date, etc.).

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

I have a judicial assistant, who is the recorder of hearings and assists on all administrative tasks associated with my docket; and a law clerk who assists with research and writing. My colleague-judge assigned also has his own judicial assistant and law clerk. We share a bailiff as part of our judicial staff. The bailiff assists with the logistics of the hearings in the courtrooms, keeps the peace, and maintains safety and decorum during hearings and throughout the courthouse.

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

On general civil matters (both district and circuit), I usually only hold pretrial conferences upon the timely request of the parties. For my specialized business docket, an “Early Scheduling Conference” is often set, and it is usually held remotely via telephone on Mondays. Any later pretrial conferences are set upon timely request of the parties. In my two treatment courts, there are no pretrial conferences needed because both programs are for those already under a probationary sentence.

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

Zoom hearings are generally available for the Motion Monday docket, any hearing that is not evidentiary in nature, and no testimony of witnesses is anticipated. The notice for hearing should reflect whether the hearing is proceeding remotely or in person. If there are no Zoom instructions or login included in or with the notice of hearing, it is presumed to be in person. Late requests for Zoom appearances, absent a stipulation of all the parties of record (or their attorneys), are disfavored by the court and will not be granted unless good cause is shown. No judicial assistant, clerk, or bailiff has authority to grant late requests for remote appearances.

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

A briefing that merely cites to a court rule or case, or makes conclusory statements is not that helpful to the court. Similarly, regurgitating exactly what was stated in a motion and/or brief is disfavored. I don’t mind a brief summary to be given at a hearing, but attorneys can presume that I have reviewed the filings. If I am unsure about part of a filing, I will often mention that and ask the attorney for more explanation. As such, for me, the most compelling component of an argument is the analysis of applicable caselaw to the case at bar, and/or explanation of why a case cited by another party is not applicable to the court’s analysis.

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

It’s hard to say because it is often dependent on case or claims, but the two areas that come to mind are 1) setting and noticing of depositions, and other basic discovery production issues; and 2) timely selecting an ADR method, and getting ADR accomplished under the scheduling order set by the court.

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

            This happens more with remote appearances than in person, but common mistakes are:

    1. interrupting while someone is still speaking or completing an argument; 
    2. appearing distracted while the court or other attorney is talking (e.g. looking down at other screens or looking at a phone or device during a hearing); 
    3. dressing too casually for court (especially when remotely appearing); 
    4. if appearing remotely, not having technology (connections, audio, etc.) checked and ready to go; or similarly 
    5. when appearing remotely the attorney, without prior approval, appears from his or her car, or other unprofessional or distracting place, and/or is doing something that is distracting like turning the screen on and off, walking around, drinking a beverage—none of those things would be occurring if in person, so they should not be occurring when appearing remotely.

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

Seeking default judgments without a motion under MCR 2.603.

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

I’m most impressed by a lawyer who can write an organized, legally supported brief, with solid case analysis, and/or can similarly argue in that manner in court. Particularly when arguing in court, staying organized and on task to the question or analysis being examined is a hard skill to master. When an attorney can answer the question posed without digressing or repeating, and/or simply admit they do not have an answer without pontificating and still demonstrate merit to the argument, that is impressive.

Not too long ago, I started making a ruling based on what was filed and set forth before me. The attorney didn’t interrupt me, but he waited until I paused to check something and then respectfully raised reference to an applicable statute provision I had not yet discussed. It was a meritorious argument and I agreed with him, and I adjusted my ruling from the bench.

13.  What is something interesting you do off the bench?

I don’t know how interesting it is, but the last couple years, with a very basic Nikon camera, I started taking photos during high school and travel team sporting events to share with other parents, students, and eventually the school for the yearbook or newsletters. What started as me just taking photos of my own kids participating in sports, turned into requests that I keep capturing student-athletes in my amateur photography.

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

Handling a caseload, whether as a judge, litigant, or attorney, is not about making mistakes. We all make mistakes. It is about working hard, putting in the effort, and being prepared. Effort over excuses. That is my expectation for myself and those that appear before me. So, I hope that the attorneys that appear before me know that I do not take offense to someone disagreeing with me or my decision, as long as we are showing respect to each other and the judicial process.

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