Trial judge's reaction to filing interlocutory appeal (on an order, not disposition)

[ianrpettus]

Michigan (HOWEVER question applies for any jurisdiction that allows interlocutory appeals.)

Interlocutory appeal - some jurisdictions allow appealing an order that doesn't dispose of the case, with explanation that the appeal should happen now. (i.e. A very substantial impact on discovery at very beginning of case.)

At least in Michigan, interlocutory appeals are decided upon very quickly as to not disrupt the trial court.

At least in Michigan, leave for interlocutory appeal, if decided to be heard, is often ruled upon by the initial briefs - rather than actually having the appeal filed and traditional briefs, arguments, and hearing later - to minimize impact to the trial court.

It's only human nature to be upset when someone goes over your head. When balancing the harm of the order to the case, with the likelihood that they will decide to take the appeal, and the likelihood that they will overturn the order, how much consideration should you give to the trial judge's reaction? Lots of the case can be left, perhaps practically all of it. I'd love to believe it's shrugged off and has no effect, but...

 

[sandyclaus]

Michigan (HOWEVER question applies for any jurisdiction that allows interlocutory appeals.)

Interlocutory appeal - some jurisdictions allow appealing an order that doesn't dispose of the case, with explanation that the appeal should happen now. (i.e. A very substantial impact on discovery at very beginning of case.)

At least in Michigan, interlocutory appeals are decided upon very quickly as to not disrupt the trial court.

At least in Michigan, leave for interlocutory appeal, if decided to be heard, is often ruled upon by the initial briefs - rather than actually having the appeal filed and traditional briefs, arguments, and hearing later - to minimize impact to the trial court.

It's only human nature to be upset when someone goes over your head. When balancing the harm of the order to the case, with the likelihood that they will decide to take the appeal, and the likelihood that they will overturn the order, how much consideration should you give to the trial judge's reaction? Lots of the case can be left, perhaps practically all of it. I'd love to believe it's shrugged off and has no effect, but...

Sorry, but that's not really a legal question.

 

[ianrpettus]

Sorry, but that's not really a legal question.

I apologize if the question is out of scope of what should be asked here. I would hope that thoughts on legal strategies would be a valid topic here. If so, I think the effects on a case after remand should be considered in the decision.

 

[sandyclaus]

I apologize if the question is out of scope of what should be asked here. I would hope that thoughts on legal strategies would be a valid topic here. If so, I think the effects on a case after remand should be considered in the decision.

But you didn't ask about legal strategy. You asked:

...how much consideration should you give to the trial judge's reaction?

An effective judge won't allow their personal feelings to affect their decisions in how they rule while presiding over a case. They will remain fair and impartial throughout the entire case from start to end.

 

[ianrpettus]

An effective judge won't allow their personal feelings to affect their decisions in how they rule while presiding over a case. They will remain fair and impartial throughout the entire case from start to end.

Totally agree. Without knowing whether a specific judge is an "effective judge", is that the prudent assumption one should make when balancing whether to file such an appeal? Or is reality that enough judges don't perform this way that you should consider holding back such an appeal for concern about future impacts?

 

[Paul84]

Totally agree. Without knowing whether a specific judge is an "effective judge", is that the prudent assumption one should make when balancing whether to file such an appeal? Or is reality that enough judges don't perform this way that you should consider holding back such an appeal for concern about future impacts?

Your question is interesting, and perhaps also valid for a similar context: deciding whether to object to the presiding judge over any of a magistrate's recommendations on a motion to dismiss. One wouldn't want to unnecessarily piss off the magistrate since s/he'll be overseeing discovery for claims that survive.

At any rate, here's a link to an interesting article on legal strategy v-v judges: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=203491
It might help you decide what to do.

 

[quincy]

One files an interlocutory appeal when the facts show substantial harm will result if a party waits for a final judgment to appeal. When balancing this substantial harm against the possible reaction of a trial judge to the appeal, guess which one outweighs the other?

Is this a personal legal issue affecting you, ianrpettus, or curiosity that spurs the question?

 

[ianrpettus]

One files an interlocutory appeal when the facts show substantial harm will result if a party waits for a final judgment to appeal. When balancing this substantial harm against the possible reaction of a trial judge to the appeal, guess which one outweighs the other?

Is this a personal legal issue affecting you, ianrpettus, or curiosity that spurs the question?

Unfortunately, it is a personal legal issue affecting me. Trying to figure out how to weigh the sides. I feel the substantial harm means I need to file an interlocutory appeal. It doesn't kill the case, but substantially affects my ability to make it. Friends and family advise to not anger the judge, and just live with the ruling. Despite having been ruled against, I have the utmost respect for the judge. What (little) I've seen of the judge including watching other proceedings seems fair, impartial, and even compassionate. I have no reason to suspect that I have a bad judge - in fact, I'd really doubt that.

 

[quincy]

Unfortunately, it is a personal legal issue affecting me. Trying to figure out how to weigh the sides. I feel the substantial harm means I need to file an interlocutory appeal. It doesn't kill the case, but substantially affects my ability to make it. Friends and family advise to not anger the judge, and just live with the ruling. Despite having been ruled against, I have the utmost respect for the judge. What (little) I've seen of the judge including watching other proceedings seems fair, impartial, and even compassionate. I have no reason to suspect that I have a bad judge - in fact, I'd really doubt that.

How will seeing the trial through to the end affect you? Whether the judge is good or bad should not play in to your decision to appeal.

You do not have an attorney working with you?

 

[ianrpettus]

How will seeing the trial through to the end affect you? Whether the judge is good or bad should not play in to your decision to appeal.

You do not have an attorney working with you?

Seeing trial through to end without interlocutory appeal means no depositions, only written discovery methods.

Do not have an attorney working with me. I know it would be best to have one, but the decision comes down to (a) handling the lawsuit myself or (b) not having a lawsuit at all, so I chose (a).

 

[quincy]

Seeing trial through to end without interlocutory appeal means no depositions, only written discovery methods.

Do not have an attorney working with me. I know it would be best to have one, but the decision comes down to (a) handling the lawsuit myself or (b) not having a lawsuit at all, so I chose (a).

Why were there no depositions taken before trial?

 

[ianrpettus]

Why were there no depositions taken before trial?

Nowhere near starting trial. Initial status conference hasn't even happened. Case was just filed, and discovery just started. Sent you a PM with details I would like to keep somewhat private, that shed some more details.

 

[quincy]

Nowhere near starting trial. Initial status conference hasn't even happened. Case was just filed, and discovery just started. Sent you a PM with details I would like to keep somewhat private, that shed some more details.

I read the private messages you sent me. As a rule, I do not respond to poster's questions off the board, so I will try to provide you with some answers by directing you to some reading material. You can post back if what is provided leads to more questions rather than answering the questions you have.

At http://courts.mi.gov/Courts/MichiganSupremeCourt/CurrentCourtRules/1Chapter2CivilProcedure.pdf:

Read over MCR Rule 2.304(A)(1),(2),(3) and Rule 2.304(C).

Read over MCR Rule 2.306(C)(2)(a),(b).

Read over MCR Rule 2.315(B) and 2.315(C)(4).

At http://courts.mi.gov/Courts/MichiganSupremeCourt/CurrentCourtRules/1Chapter8AdministrativeRulesofCourt.pdf:

See MCR Rule 8.108(G)(1)(c),(e),(f) and Rule 8.202(B).

Good luck.

 

[ianrpettus]

(quincy, you've seen everything in this post, just making it public now. Letting the cat out of the bag.)

I believe the Michigan Court Rules allow me to videotape depositions, and therefore not have a stenographer/court reporter present. That still requires someone to have duties at the deposition, such as swearing in the witness. I believe I could hire a notary public to perform these duties. However, I filed a motion asking for opposing counsel to be able to perform these duties, not being worried about a conflict of interest since they wouldn't have many responsibilities.

Motion denied, on the basis that my premise was wrong. We never got to the other duties part. Ruling was that I still need a stenographer/court reporter present at the deposition, even if it's video taped.

It appears to be common practice to also have a court reporter present, but I don't see where the Michigan Court Rules, Michigan law, or Michigan case law actually requires this. There are other jurisdictions that regularly allow the party holding the deposition to choose to videotape it in lieu of a court reporter being present. I don't see why Michigan is different, other than common practice.


MCR 2.306(C)(2)(a) states: "The testimony must be taken stenographically **OR** recorded by other means in accordance with this subrule. The testimony need not be transcribed unless requested by one of the parties." (emphasis added.) If the testimony is recorded by videotape, the word OR drops the requirement for "stenographically". If a party requested the testimony to be transcribed, a court reporter could do so based off the videotapes.

Opposing counsel argued that MCR 2.306(C)(3) requires that if I want to videotape the deposition in lieu of having a court reporter present, that needs court order or party stipulation due to MCR 2.306(C)(3). It does appear to say that at first, however a full reading of part (d) says: "Subrule (C)(3) does not apply to video depositions, which are governed by MCR 2.315." Judge agreed here with opposing counsel.

MCR 2.315(A) states: "Depositions authorized under MCR 2.303 and 2.306 may be taken by means of simultaneous audio and visual electronic recording WITHOUT leave of the court or stipulation of the parties..." (emphasis added.)

Nowhere in 2.315 is there even a mention of a court reporter. Moreso, even though I don't need this, MCR 2.315(B) states: "... the taking of video depositions is governed by the rules governing the taking of other depositions unless the nature of the video deposition makes compliance impossible or unnecessary."

 

[ianrpettus]

quincy, thank you for your post. Here are my views of the rules you refer to. I've lived and breathed these rules in the past few weeks, and don't understand why any of them do anything but support my position. Not sure yet if you agree or disagree with me.

MCR 2.304(A)(1)-(3). Deposition may be taken before a notary public, a person authorized to administer oaths in Michigan. I had hoped for stipulation from opposing counsel that opposing counsel could be the one to put the deponent under oath, and perform the other minimal duties if there's no court reporter present.

MCR 2.304(C) Since I didn't get stipulation regarding using opposing counsel, I'm back to my contention that I could hire a notary public without a conflict of interest to fulfill all the duties left.

MCR 2.306(C)(2)(a)-(b). I could videotape record the testimony, under the direction and in the presence of a notary public. (a) includes: "The testimony must be taken stenographically or recorded by other means in accordance with this subrule. The testimony need not be transcribed unless requested by one of the parties." The word "or" allows me to record, eliminating the "stenographically" requirement. If requested by one of the parties, the testimony could be transcribed off of the videotape recordings at a later date, at a much less expensive rate than having a court reporter present at the entire deposition.

MCR 2.315(B) video depositions don't have to follow the rules governing the taking of other depositions if compliance with those rules are unnecessary due to the nature of video recording. I contend there's no rule requiring a court reporter in conjunction with videotape recording, but even if there was, compliance with it would be unnecessary due to the nature of videotape recording.

MCR 2.315(C)(4) The person being deposed could be sworn in on camera by a notary public.

MCR 8.108(G)(1)(a) Only reporters, recorders, or voice writers certified pursuant to this subrule may prepare transcripts of videotaped depositions, but using these certified people is not required for the actual recording of such depositions.

MCR 8.108(G)(1)(c) An indigent party who is represented by a nonprofit legal aid program may use persons who are not certified to transcribe and file depositions taken by videotaping. I'm an indigent party representing myself, so although I don't see why it is fair to exclude me under this benefit since I'm not represented by legal aid, I'm not sure I can exactly lay claim to this benefit. If I couldn't, I could still use a certified court reporter at a later date to transcribe based off the video tapes, ans use a notary public at the deposition to be the one who files the depositions.

MCR 8.108(G)(1)(e) An objection to the status of a court reporter's or reporter's certification or lack thereof must be placed on the record at the outset of the deposition or that objection is waived.

MCR 8.108(G)(1)(f) A court reporter or recorder at a deposition must before it starts show to everyone proof that they are certified. Don't see anywhere that requires a court reporter or recorder to be at the deposition if videotaped, so there wouldn't be one, therefore no certification would need to be shown.

MCR 8.202(B) This is in circuit court, not district court.