Advocacy in the Michigan Supreme Court

Recently, I had the honor of meeting with each of the seven Michigan Supreme Court Justices for an article I was writing for the Michigan Bar Journal.  With the 2,500-word count limit, there was so much more about which I wanted to write!  Thus came the inspiration for this article, one that I hope appellate practitioners find both interesting and helpful.

We all know that attorneys – and appellate attorneys are no exception – have a duty to zealously represent their clients’ interests.  That said, when an application for leave to appeal is presented to Michigan’s highest court, counsel must not only advocate on behalf of his or her client, but also advocate for the Court’s application of a certain rule of law bearing significance to the jurisprudence of Michigan.  The Court is not micro-focused on the case before it, but rather macro-focused on the statewide jurisprudential value that resolution of the case will prospectively serve, i.e., the resultant law that will be applied to all future litigants similarly situated.  Courts of last resort are unique in this respect, which explains why fewer cases are heard at that level.

M.C.R. 7.305(B) requires that an application for leave to appeal be grounded by an issue that (1)“involves a substantial question about the validity of a legislative act;” (2) an issue that has “significant public interest and the case is one by or against the state or one of its agencies or subdivisions or by or against an officer of the state or one of its agencies or subdivisions in the officer's official capacity;” and/or (3) an issue involving “a legal principle of major significance to the state's jurisprudence.”

If an appeal is sought prior to a decision of the Michigan Court of Appeals, the application must show that (a) “delay in final adjudication is likely to cause substantial harm, or (b) the appeal is from a ruling that a provision of the Michigan Constitution, a Michigan statute, a rule or regulation included in the Michigan Administrative Code, or any other action of the legislative or executive branches of state government is invalid[.]”  And, an application seeking to appeal a Court of Appeals decision must show that “(a) the decision is clearly erroneous and will cause material injustice, or (b) the decision conflicts with a Supreme Court decision or another decision of the Court of Appeals[.]”  Finally, if the application seeks an appeal from a decision of the Attorney Discipline Board, then the application must show that “the decision is clearly erroneous and will cause material injustice.”

Thus, unlike cases at the trial court and Court of Appeals levels, appellate counsel must not only zealously advocate for their clients’ best interests, but also must demonstrate why resolution of the issue or issues presented in a given case has the requisite jurisprudential significance.  Chief Justice Robert P. Young, Jr., has observed that “[m]any appellate attorneys are so focused on achieving a positive result for their clients that they neglect to think through the implications of the relief that they seek or why they should be entitled to particular relief.”1  And, inasmuch as the Court only grants about two percent of the approximate 2,000 applications it receives each year,2 it would appear that, from the Court’s perspective, appellate counsel’s demonstration of jurisprudential significance far outweighs the significance of the individual client(s) whose interests counsel must also zealously advocate.  “As a clue to understanding what issues interest the Court, a good appellate advocate will peruse the Court’s prior related decisions as well as orders granting leave to appeal, which often include specific issues that the Court requests the parties to brief.”3

Counsel might think that, after an application for leave to appeal is granted, the importance of continued demonstration of jurisprudential significance in the appeal brief and at oral argument would lessen or become moot entirely, because the Court was already persuaded as evidenced by its grant of leave. In fact, nothing could be further from the truth.  After leave is granted, continued emphasis on the reason(s) why your case presents an area of law significantly affecting the state’s jurisprudence, or juris prudentia, is essential at each stage of appellate advocacy in the Supreme Court.

Just as it was necessary (in fact obligatory under MCR 7.305(B)) to provide grounds in the application, it is equally important for counsel to address the big-picture, statewide jurisprudential significance in the appeal brief and at oral argument.  What rule of law are you asking the Court to apply?  Aside from your case, how would application of that rule of law significantly contribute to Michigan’s jurisprudence?  Indeed, many of the questions coming from the bench during oral argument likely will be focused on the rule of law that the Court must apply, often because counsel failed to adequately address this point in his or her brief.  In the words of Justice Young:

I know you and your client want to win your case, but the Supreme Court’s job is to interpret an area of the law, not one particular case.  Your job is to present a rule of law not just for your case, but for the next hundred cases like it.  Thus, we are thinking about how your case affects other cases, past and future.

Many appellate practitioners do not understand that, particularly at the Supreme Court level, the Court cannot resolve the case at hand without addressing broader ambient legal doctrines in which the case arises.  Consequently, such appellants tend to argue that their case should be decided on its unique characteristics, oblivious to the fact that, if the case had no broader doctrinal implications, it is unlikely the Court would have granted leave in the first instance.4  (Emphasis in original.)

Justice Stephen Markman, who sat on the Michigan Court of Appeals prior to his appointment to the Supreme Court in 1999, noted that “we need to know how the case ought to be resolved, not just for purposes of resolving the dispute in that case, but also in order to resolve the next 200 similar and related disputes that the Court’s decision will affect.  One of our responsibilities is to develop the law in Michigan.”5  In his view, it is also important for counsel to inform the Court  -- in both their written and oral presentations – why, as the court of last resort in our state, it should focus its time and limited resources on the particular matter at issue in that case.6

Similarly, Justice Brian K. Zahra, who previously sat on the Court of Appeals and the Wayne County Circuit Court, explained that the cases before the Supreme Court are not about the appellate attorneys’ clients, but rather the jurisprudence of the state.  Accordingly, he believes counsel should articulate the rule of law that ought to be applied and explain how its application is beneficial to the jurisprudence of the State of Michigan.7

Justice Bridget Mary McCormack, who previously served as a law professor and dean at the University of Michigan Law School prior to joining the Court in 2013, offered similar advice:  You “have the opportunity to tell us why this case matters beyond your case.”8  The Court, she explained, is trying to establish the rule of law “for the next 1,000 cases.”9

Justice David Viviano, having had previously for many years the trial-judge perspective, as former Chief Judge of the Macomb County Circuit Court, told me that, at the Supreme Court level, “the game changes.”10  Like his colleagues, Justice Viviano believes that the Court is trying to figure out what the rule of law is throughout Michigan, not just in the specific case before it.  As he explains it, the question changes from one about how it impacts the case at bar to one about how it impacts Michigan jurisprudence statewide.11

So, you might wonder why so many paragraphs in this article were devoted to this point. The answer might surprise you:  After asking many of the justices about the “dos and don’ts” of appellate advocacy, I was stunned to hear that many attorneys appearing before the Court fail to adequately address the jurisprudential significance of their cases, if at all.  And, I learned something else.  Out of the four days that I had met with the justices and Court staff, I decided that I would spend most of one of those days sitting in the courtroom to watch the presentation of oral arguments.  Initially, I decided to do this to observe the interaction among the justices, because, the last time I appeared before the Court, the atmosphere was not one dominated by congeniality as it clearly is today.

I was drawn to but not surprised by the light-hearted banter that was exchanged among the justices, but I was completely taken aback by how counsel could not or would not answer questions specifically asking what the jurisprudential value the respective case presented if the Court were to adopt a certain rule of law.  In one instance, the attorney presenting oral argument appeared annoyed by the Court’s questions. In another oral argument, a question completely threw counsel off his argument that he had been reading from the podium.  Even after the justice thrice asked the question, the attorney completely ignored it, thus failing to answer a question that certainly seemed important to the justice.  But, in all fairness, I had the luxury of sitting back and observing “nerve free,” as I was not there awaiting my turn to present argument.  It’s amazing how much better one can hear and see when not under the influence of stress!

I also learned some other enlightening and helpful words of advice from the justices.  Although it should go without saying, make sure you are “over-prepared” to the extent that, like in the law school moot court days, you could present your opponent’s argument if you had to do so.  In fact, Chief Justice Young recommends that appellate attorneys practice their arguments “moot court” style ahead of time. You should know the facts and the law of your case without having to read them from your notes; the Court does not want to hear a recital.12

When I met with Chief Justice Young, I was again surprised by his response to one of my questions on this topic.  He said:  “I am stunned at how ill prepared are so many counsel who appear before the Court.  They come to give a recital, not to educate the court.  Many are offended by the Court’s questioning of their position and respond poorly.  This kind of performance may not hurt their client’s cause but it rarely advances it either.”13

As appellate practitioners, we all know that the first five minutes of oral argument at the Supreme Court constitute the “cease-fire” or “question-free” period.  Often, however, by the time counsel recites the facts of the case, or clarifies the facts of the case, not much time is left for the real “guts” of the case.  Have you ever felt that, after the roller coaster of questions started, when your time expired, you did not get through the main points of your entire argument?  Well, here is some advice that might surprise some practitioners.

By the time oral arguments are heard, the justices have read all the briefs.  As such, unless the facts of your case are pivotal or complex, many of the justices told me that you might be wasting your argument time by reciting facts of which they are already aware.  Of course, not every case is alike, and the appellate practitioner must employ his or her own judgement when deciding whether or not to waive this “free” time.  However, some of the justices told me that, if the facts are straightforward, they would appreciate not having to hear them repeated.

Although I did not discuss the “cease-fire” period with all seven justices, those with whom I did discuss the topic thought that, if counsel were to waive the question-free period, a more productive argument might result.  I have to admit that, had I not watched several arguments prior to being told this, I probably would have looked like someone just suggested that I go bungy jumping off a bridge!  But, ironically, during my argument-observation day, one attorney presenting argument stood up, introduced himself, waived his five minutes, and very eloquently invited the Court to ask him questions, so that he could address the issues on which the Court was most focused.  By the time he concluded, I was so amazed by his commanding and confident, yet deferential and respectful performance.  He appeared to know the facts and the law cold, and he answered every question posed, with an air of one who genuinely appreciated the opportunity to participate in a substantive colloquy with the Court for his entire argument time. And, while I observed the exchange between counsel and the justices, the justices were very responsive and much engaged by that approach.

Additionally, many justices told me that, often, counsel fail to listen to the questions being asked.  Although nerves play a role, the justices have said that, on occasion, when a question is asked, it is clear that counsel failed to stop and listen, resulting in no answer at all or a nonresponsive answer, often followed by counsel’s scrambling to resume his or her place in the pre-memorized or –written argument.  Many justices commented that it is extremely important to listen and answer the specific question being posed, not just as a showing of respect and proper decorum, but also because, after having read the briefs and appendices, the questions raised by the Court should demonstrate to counsel on what the Court is actually focused and/or with what it is struggling.

So, how important is oral argument to the Court?  Justice Markman told me that, to him, it is “extremely important.”14  Because the Court grants leave on so few cases, argument is necessarily important on those cases; if it were not, leave to appeal would not presumably have been granted in the first place.15  For Justice Markman, effective oral advocacy by counsel persuades him to decide a case differently than he was inclined to do before hearing argument “all the time.”16 He attributes this to the fact that leave-granted cases are the most difficult or troublesome.17

“I often ask devil’s advocate questions,” said Justice Markman.18  He explained to me that, although counsel might assume that, by the nature of the questions being posed, he might be inclined to agree with the opposing argument, his rationale for the question is to require counsel to “respond to [what Justice Markman views as] the opposition’s most difficult questions.”  These responses might assist, for example, with writing an eventual opinion, thus seeking out the assistance of counsel in that endeavor.19

Chief Justice Young has written the following regarding to what extent oral arguments impact his decision-making process:

In my experience, the honest answer is that few oral arguments actually cause a Justice to radically alter his view of a case.  However, effective oral arguments – on the margins – can cause a judge to rethink his views of the case.

I think the more important point is that oral arguments provide a judge with an opportunity to challenge his thinking about the legal questions at issue.  Thus, for me, whether an oral argument – even a very effective one – causes me fundamentally to change my views is not as important as the opportunity it presents for me to work through the issues in a thorough fashion.

Surely, an effective oral argument can provide a margin of success in a close case.  But it would be hard to imagine how even the most brilliantly conceived oral argument could overcome serious substantive legal weakness in a case.  It is important for you as practitioners to understand that the converse is not true: poor advocacy, including oral advocacy, can sunder a case of real merit.20

Finally, many of the justices told me that questions asked by their colleagues during oral argument are also helpful and influential, as are the “robust” and “productive” discussions the justices have during their weekly conferences.  And, just as the justices believe it to be very important for counsel to listen to the justices’ questions, some justices commented that it was equally important for the justices to listen to one another.

 

by Bridget Brown Powers

Bridget Brown Powers is the principal of Brown Powers, PLLC, Petoskey, focusing on appellate, real property, business, and municipal law.  She recently was re-elected to the Appellate Practice  Section Council and serves as Co-Editor of the Michigan Appellate Practice Journal.  She is a member of the Advocates Guild of the Michigan Supreme Court Historical Society.  Previously, she served as City Attorney for the City of Petoskey and adjunct professor for NCMC’s Paralegal Program, which she authored.

Endnotes

1. Young, Effective Supreme Court Advocacy: Advice from the Chief Justice, 1-7, in 38th Annual Labor and Employment Law Institute (ICLE seminar held April 4-5, 2013), and Interview with Chief Justice Robert P. Young, Jr.,  Lansing, Michigan (November 6).

2. Michigan Supreme Court 2014 Quantitative Report, p 3, and interview with Chief Clerk Larry Royster, Lansing, Michigan (November 5-6, 2015).

3. Young, Effective Supreme Court Advocacy: Advice from the Chief Justice, 1-7, in 38th Annual Labor and Employment Law Institute (ICLE seminar held April 4-5, 2013).

4. Id. at 1-14.

5. Interview with Justice Stephen Markman, Lansing, Michigan (November 6, 2015).

6. Id.

7. Interview with Justice Brian Zahra, Lansing, Michigan (November 18, 2015).

8. Interview with Justice Bridget McCormack, Lansing, Michigan (November 18, 2015).

9. Id.

10. Interview with Justice David Viviano, Detroit, Michigan (November 10, 2015).

11. Id.

12. Interview with Chief Justice Robert P. Young, Jr., Lansing, Michigan (November 6, 2015).  See also Young, Effective Supreme Court Advocacy: Advice from the Chief Justice, 1-13, in 38th Annual Labor and Employment Law Institute (ICLE seminar held April 4-5, 2013).

13. Id.

14. Interview with Justice Stephen Markman, Lansing Michigan (November 6, 2015).

15. Id.

16. Id.

17. Id.

18. Id.

19. Id.

20. Young, Young, Effective Supreme Court Advocacy: Advice from the Chief Justice, 1-9, in 38th Annual Labor and Employment Law Institute (ICLE seminar held April 4-5, 2013).

 

This article originally appeared in the Spring 2016, Vol. 20, No. 1 issue of the Michigan Appellate Practice Journal and is reprinted with their permission.