“Goodbye Yellow Brick Road” and how COVID-19 could forever change the need for oral argument and why the written brief is all too important.
We have been inundated with closings, postponements, and cancellations. The new operative phrase of 2020 is “social distancing.” On March 18, 2020, the Michigan Supreme Court released its administrative order limiting court proceedings to the barest of essential functions. Under Administrative Order No. 2020-2:
Pursuant to 1963 Const, Art VI, §4, which provides for the Supreme Court’s general superintending control over all state courts, trial courts are ordered to limit access to courtrooms and other spaces to no more than 10 persons, including staff, and to practice social distancing and limit court activity to only essential functions . . . .
For the civil and business practitioner, the order requires the adjournment of all proceedings, save for certain PPO and Infectious Disease proceedings until after April 3, 2020. Given the state of affairs, it’s probably a safe bet that even if the restrictions are lifted on April 3, 2020, a number of courts are going to continue “social distancing” to dispense with oral arguments on summary disposition motions, as well as other motions, and will likely decide such matters solely on the written brief.
Indeed, the Michigan Court of Appeals announced on its website that the Court would “be issuing notices in those cases assigned to the April calendar where the panel does not deem oral argument essential, and thus, the case will be decided without oral argument pursuant to MCR 7.214(E).” The Court further stated that such cases selected for oral argument would be argued by conference call, with one case argued by video-conferencing, with the parties’ consent. This practice may also extend into May 2020.
Trial courts likewise have the discretion to “dispense with or limit oral argument on motions, and may require the parties to file briefs in support of and in opposition to a motion.” See MCR 2.119(E)(3). Be prepared. Armed with this authority, more courts are likely to dispense with oral argument as a preventative measure, especially since they will seek more efficient means to keep their dockets moving forward.
For example, when moving for summary disposition, pay close attention to the court rules. If a trial court decides to dispense with oral argument, MCR 2.116(G)(5) becomes even more critical:
The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule (C)(1)-(7) or (10). Only the pleadings may be considered when the motion is based on subrule (C)(8) or (9).
Likewise, when drafting a complaint based on a written instrument, protecting your pleading and the record becomes more important given that MCR 2.113(C)(3) requires all such writings to be attached to the complaint. In fact, the attached writings become part of the pleadings. See MCR 2.113(C)(2).
Needless to say, it’s always important to follow the rules in preparing a thorough brief. In-state courts, you only have 20 pages to convince the court of your position. You need to use those pages wisely. With more courts likely to dispense with oral argument, the days of filing perhaps an adequate or even sub-par brief, only to dazzle the court with oral argument, may soon be over. Practitioners will need to dazzle in their written briefs. The record becomes even more important for appellate purposes.
In addition to preparing and filing your brief, you should also attach a draft order. With oral argument, it is generally easier for trial courts to issue their ruling from the bench, leaving the order-drafting task to the lawyers. This is especially so where trial courts lack sufficient clerk support, or where clerk support is unavailable. As such, while “social distancing” could substantially reduce oral argument, it becomes even more critical to take on the clerical role with attached draft orders.
Our courts will no doubt return to some semblancy of normal in the hopeful near future. But make no mistake, this virus has shaken our society to its core. Given that the courts have the discretion to avoid oral argument altogether, the written brief becomes all too important.
Daniel J. McCarthy