One Court of Justice

On Friday, August 28, 2009, the Michigan Supreme Court denied a prisoner’s motion to waive fees.

In our interview with Chief Judge Saad, we asked him for his thoughts on writing persuasive applications for interlocutory appeal.  Because such applications ask the court of appeals to grant discretionary review of a case that is still in midstream, it is important to do two things.  First, the application must grab the attention of the court and explain why the case is important.  Second, the application must explain why the court should take the case now, at the interlocutory stage, rather than after a final judgment.  The advocate, Chief Judge Saad explained, should therefore spell out what the consequences would be to the party (and more generally) if the court declined to grant the application.  After accomplishing these two tasks in the introduction of the application, the application should also sketch out a road map of the case as concisely and intelligently as possible.

In People v. Cook, No. 280600 (published Aug. 27, 2009), the Court of Appeals held that the trial court deprived the criminal defendant of his right to a jury trial.  At the beginning of Cook’s trial, his attorney signed a jury-trial waiver and stated in open court that Cook had agreed to waive his right to a jury trial.  When the trial court judge asked Cook, however, whether he had agreed to this waiver, Cook answered “no.”  Nonetheless, a bench trial was held, and the judge convicted Cook of several crimes related to possessing controlled substances.  Cook appealed, arguing that the trial court had deprived him of his Sixth Amendment right to a jury trial.

The Court held that the attorney’s waiver was not sufficient.  An attorney cannot waive his client’s right to a jury trial without his client’s “fully informed and publicly acknowledged consent.”  The record provided no evidence of Cook’s consent—indeed, he objected on the record—and so his right to a jury trial had not  been waived.  The Court further held that this was a structural error, not subject to harmless-error analysis and therefore required automatic reversal. Accordingly, the Court remanded the case for a jury trial or for a new bench trial after a valid jury-trial waiver.  The Court’s opinion can be found here.

During our interview with Chief Judge Saad, he offered a few insights into effective appellate advocacy.  At the outset, the advocate should explain why the issue of the case is important and whether the decision below was consistent with the direction of the law.  Given the large number of cases that judges on the Court of Appeals hear and the wide spectrum of legal issues they confront, explaining the framework for the area of law in the case at hand is vital, especially in complicated areas.  While the advocate may be a specialist in the area, odds are that all three judges on the panel are not, so providing an accurate overview of the field may be necessary to provide the appropriate context for the specific issues.  Furthermore, it is helpful to the judges to identify succinctly the consequences of the various decisions in the case and to weave the facts of the case into the explanation of the law. Read more »

On the topic of whether advocates should cite unpublished cases from the Michigan Court of Appeals, Chief Judge Saad thought it was helpful to cite such cases for a simple reason:  he likes to know what his colleagues are thinking.

Chief Judge Saad spent some time with us discussing how opinions are assigned to judges on the Court of Appeals and the process by which cases are decided.  He explained that each case subject to an appeal by right or in which leave has been granted to appeal is randomly assigned to a panel of judges.  Before oral argument, the case is reviewed by the staff attorneys who provide a report giving an objective analysis of the case.  For each sitting of a panel, all three judges are given equal writing responsibility.  So, for example, if a panel will hear 27 cases, each judge would be assigned 9 cases.  The opinion assignments are made before argument.  In a relatively small number of cases where the resolution seems straightforward, the writing judge may circulate a draft opinion to the other judges on the panel before oral argument. Read more »

Chief Judge Saad graciously agreed to sit down with us for an informal interview a few weeks ago.  Over the next few days, we will post some of his thoughts regarding applications for leave to appeal to the Court of Appeals, effective appellate advocacy, and how the Court of Appeals decides cases.  First, a little about Chief Judge Saad’s background: Read more »

The Michigan Court of Appeals has published its opinion in Janson v. Sajewski Funeral Home, Inc., No. 284607.  In that case the trial court awarded summary disposition to the defendant in a slip and fall case on the grounds that the black ice which caused the fall was an open and obvious danger.   The Court of Appeals reversed, rejecting the notion that “black ice in Michigan is open and obvious as a matter of law.”  The Court of Appeals cited facts from the record emphasizing that the black ice was not visible, and concluded that the application of the open and obvious doctrine would not be appropriate.

On August 25, 2009, the Court of Appeals published its opinion in Caiger v. Oakley, No. 285549, which overturned a trial court’s award of summary disposition of defendants in an auto accident case.  The trial court awarded summary disposition on the basis that plaintiff had failed to demonstrate a threshold injury.  In reversing, the Court of Appeals pointed out that the plaintiff had knee replacement surgery and had presented medical evidence that the accident had led to the chronic pain which necessitated the surgery.  The Court of Appeals also noted that although plaintiff had given up his profession as a painter for financial reasons, the accident-related injury and subsequent physician restrictions would prevent him from ever returning to work as a painter in better economic times.  Considering that evidence in combination with evidence of continuing chronic pain which also prevented plaintiff’s enjoyment of his woodworking hobby, the Court of Appeals concluded that plaintiff had established an objectively manifested impairment of an important bodily function.

On August 25, 2009, the Michigan Court of Appeals published an opinion in People v. Buie, No. 278732, holding, in a case of first impression for Michigan, that the United States Supreme Court’s Confrontation Clause analysis in Maryland v. Craig, 497 U.S. 836 (1990), applies to two-way video conferencing of witnesses.  The Court of Appeals followed the majority view of the federal circuits in concluding that two-way video conferencing raises similar concerns under the Confrontation Clause as one-way video conferencing, even though it permits the witness to view the defendant, and therefore extended the holding in Craig to two-way conferencing.  Under Craig, the trial court must conduct a hearing and make a specific finding that “the procedure is necessary to further a public policy or state interest important enough to outweigh the defendant’s constitutional right to confrontation and that it preserves all of the other elements of the Confrontation Clause” (oath, cross-examination, and observation of demeanor by trier of fact). Read more »