Court of Appeals hears arguments, shares educational information at WMU Cooley


legal news photos by Cynthia Price

by Cynthia Price
Legal News

“This might prove to be a bit anticlimactic,” Chief Judge Michael Talbot of the Court of Appeals told students gathered to observe the court hear oral argument at the Grand Rapids campus of Western Michigan University-Cooley Law School Oct. 13.

“The work in appellate court is unlike a trial court where new information may come out. We’ve read these briefs, this is what we do for a living, and we probably know the issues as well as the lawyers,” he continued. “This is our opportunity to hear the lawyers clarify something or bring a newly published case to our attention, but though there’s an expectation of an exchange, there may not be much.”

However, even though there was wide variation from case to case, the students and others attending were not disappointed if they hoped to see back-and-forth interactions between the COA judges and the attorneys presenting their cases.

In addition to Chief Judge Talbot, Judge Jane Beckering and Judge Michael Gadola were empaneled in WMU-Cooley’s training courtroom.

Judge Beckering has been on the COA since 2007, after being in private practice first in Chicago and then in Grand Rapids with Buchanan and Beckering.

Formerly Chief Legal Counsel to Gov. Rick Snyder, Judge Gadola was appointed to the COA at the end of 2014. Before that, he also served as Counsel to the Michigan Supreme Court and to the State Court Administrative Office.

Chief Judge Michael Talbot has been on the COA since 1998, and has been elected to serve until at least 2020. In addition to a January appointment as Chief Judge of the Court of Appeals (see below for news on his immediate predecessor, William B. Murphy), Talbot also serves as the Chief Judge of the Court of Appeals, housed within the COA, which hears major claims against the State of Michigan, its agencies and personnel.

In fact, Chief Judge Talbot told students at an informal breakfast reception before the court session, the Michigan Court of Appeals is the only one in the country that is both an appellate court and a trial court. The legislature moved the Court of Claims from Ingham Circuit Court to the COA in November of last year, a move whose constitutionality the COA itself had to adjudge. (Judge Beckering was on the panel that deemed it constitutional.)

For approximately 45 minutes prior to the start of arguments, WMU-Cooley students were able to benefit from face-to-face contact with the judges. Each engaged cordially with the students and gave freely of his or her expertise on the court system.

“It’s really good for our students to see the judges and learn from them outside of court,” commented WMU-Cooley Professor Paul Sorensen.

And Professor Christopher Hastings added in a prepared statement, “We are pleased that the Court of Appeals has chosen to use our campus to show students, attorneys and the public procedures involved in an appeals court hearing.”

The students were attentive as the morning unfolded. The wide variety of types of cases may have contributed to their concentration, along with the chance to observe fine legal minds engaged in pinpointing the issues of each.

After one particularly detailed exchange involving a criminal case, People of Mi v. Clifford Anthony McCormack, Chief Judge Talbot told the students, “This is sometimes called a hot panel. It simply means that we engage, as opposed to a very passive panel.”

The exchange was not argumentative, with the judges asking in-depth questions of both defense attorney Mitch Foster and prosecuting attorney Heather Bergmann concerning the defendant’s ability to withdraw a plea after misconduct, when what was specified in the plea bargain was “not violating bond conditions” and there was no bond.

The questioning was somewhat more contentious in a case where the defense attorney claimed that the judge allowed members of the jury to ask a number of what he claimed were advocacy or impartial questions. The judges asked him repeatedly to say which questions he meant, without resolution.

Before considering a highly complex case,  Fifth Third Bank v. Triangle Associates, Judge Talbot warned, “Civil procedures class, you should listen up; every issue on the exam will appear. The kitchen sink is in this case.” Local Warner Norcross and Judd attorney Gaëtan Gerville-Réache, who was recently named chair-elect of the Appellate Practice Section of the State Bar of Michigan, argued on behalf of Fifth Third, and Mark Andrew Rysberg represented Triangle. Amid suits and counter-suits and other appeals, the issue at hand came down to whether the bank should be deemed to owe an obligation in a situation where a judgment was entered against an account holder who subsequently drained his account, and the timing thereof. Judge Beckering was particularly skillful at identifying and separating the legal issues under consideration.

It was difficult to tell from what the judges said and asked how they will rule on most of the cases argued last week.