WHAT NORFOLK COUNTY JUDGES WANT

On February 26, 2014, Attorney Grossman attended a program which featured the six (6) judges in the Norfolk Probate & Family Court and their stated preferences during motions, pre-trial conferences and at trials.   Her notes from that program are attached here.

   

Norfolk Bar Panel with Judges

February 26, 2014

 

JUDGE CASEY

Motions:  

1. Give documents to the other side before the hearing
2. State what you’re looking for at the beginning of the hearing
3. Likes Proposed Order with details, not blanks

PTC:

1. Have 4way before the day of the PTC
2. Limit pages of PTM
3. Focus on contested issues

Trial:

1. Bring proposed Judgment on first day of trial
2. Narrow the issues for trial
3. Doesn’t like fat exhibit books; use 3” or smaller
4. Stand to object
5. No grounds needed for objections unless asked

 

JUDGE JACOBS 

 Motions:

1. Exchange documents ahead of hearing
2. Wants answer first, then will give time for explanation
3. Loves detailed Proposed Orders and Stipulation of agreed issues

PTC:

1. Have 4 way before hearing date
2. Attorneys should act professionally as a model for clients

Trial:

1. Likes smaller binders too
2. Arrive with Stipulation of agreed issues

 

JUDGE MENNO               

 Motions:

1. State what you want and why
2. Provide an Order (not proposed) with his name on it to make it simple for the Court to get the Order to us quickly.
3. Likes “controlled passion” – don’t bang table – be calm
4. Don’t complaint about opposing counsel

PTC:

1. Most important day of the case
2. He clears the courtroom except the parties and counsel
3. Wants a short, sweet PTM
4. Amend the PTM format and give theory of the case at the beginning
5. Can alter the PTM format to include offer of proof
6. His time to talk, not the lawyers’

Trial:

1. 3% of cases should go to trial
2. Most cases should not go to trial
3. Likes lawyers to be mindful of time
4. He watches the time and expects direct testimony to be put into evidence in an hour
5. On cross exam don’t regurgitate facts already in evidence
6. He limits testimony based on time

 

JUDGE ULWICK 

 Motions:

1. Be prepared
2. Prepare client by getting information before hearing; doesn’t like client to speak
3. Likes detailed motions
4. If multiple issues or motions see if they can be scheduled on a trial date instead of a motion day to get more of her time

PTC:

1. Does not close courtroom
2. Appreciates joint PTM
3. Time management important
4. In memo state areas of agreement and disagreement
5. She really does read PTM
6. After the hearing she asks parties and counsel to “step back” and go talk, and return to court after talking
7. Wants us to be sincere about listing witnesses in PTM – not too many

Trial:

1. Wants Stipulation of uncontested facts
2. Don’t repeat stipulated facts during direct or cross exams
3. Bates stamp pages
4. Point to exhibits when laying out your case
5. Don’t object too much

 

JUDGE PHELAN  (*will be riding circuit and replaced by Judge Menno)

 Motions:

1. Don’t object to opposing counsel’s argument at motions
2. Be dignified and civil during motions
3. Provide detailed Proposed Order

PTC:

1. PTC very important
2. Tell the Judge the bad stuff about your client too – deflect issue from other side

Trial:

1. Often too many documents and witnesses – attorneys practicing defensively
2. Just use important documents and witnesses
3. Wonders why we put documents into the exhibit book which we don’t actually use at trial

 

JUDGE ROACH  (*doesn’t have assigned list of cases/handling multi-day trials only)

Motions:

1. Don’t try your case in the motion session
2. Be polite to counsel – don’t interrupt
3. Provide a written Order, concise with reasons why

PTC:

1. Closes courtroom for case
2. He reads PTM on bench
3. He says to clients that he has read it
4. Allows each attorney to orally summarize case
5. He recommends how case should be resolved
6. Wants concise PTM
7. Under Contested Issues wants Proposed Judgment and reasons why
8. 4 way and PTC very important

Trial:

1. Prepare before trial
2. Just use the relevant bank statements, not all of them
3. Know your case inside and out
4. Put evidence in logically
5. Don’t jump all over place
6. Submit Proposed Judgment on first day of trial

 

ISSUES DISCUSSED

“General term alimony shall terminate upon full retirement age”

Facts:  Payor now 66.5, been paying alimony for 25 years and brings motion to immediately terminate his alimony.

JUDGE ROACH SAYS:

Statute is confusing.  Section 4 says section 49 applies prospectively.  Doesn’t think new law should apply retroactively because interferes with parties’ constitutional rights.  He would deny Payor’s motion even if it resulted in injustice.  After trial, he would base a modification on the factors in the Pierce case.

JUDGE MENNO SAYS:

On same facts he disagrees with Judge Roach. Alimony Reform Act can change the law. Not adverse to suspend alimony on Temporary Orders.  Fact driven and not concerned about constitutional protections.

JUDGE PHELAN SAYS:

Still need to show “need and ability to pay”.  Statute did not change this basic principle.

JUDGE CASEY SAYS:

He reads Alimony Reform Act that termination is mandatory due to the “shall” language.   Only need to establish Payor’s retirement age, then the burden shifts to the recipient to show by clear and convincing evidence.  Can outline by Affidavit what material change has happened since judgment.  Even if Payor continues working Casey would terminate unless other side can prove a material change (i.e. health issues, etc.)

JUDGE ULWICK SAYS:

Need to file a Counterclaim to bring forward recipient’s claim to continue alimony. She interprets the “prospective” language in the statute to mean that the Payor must get permission from Court to terminate, cannot terminate automatically.   The earlier judgment was part of a package deal and she is concerned about detrimental reliance.

NEXT FACT PATTERN:

Wife was cohabitating before the divorce.  After Alimony Reform Act Payor brings Complaint for Modification claiming cohabitation should terminate his obligation.

JUDGE PHELAN SAYS:

This is a “new beginning”.  Pick any date after the statute as the first day of the 90 day period.  Does not see an obligation to share physical residence as proof of cohabitation.  He interprets cohabitation broadly.    If recipient were to bring a motion to dismiss, he would deny it.

JUDGE CASEY SAYS:

This was a big issue earlier but seems to have died down, not sure why.  He believes it means cohabitation after March 1, 2012.  If recipient or cohabitating partner were to move out and back in, he would examine the pattern and determine whether there was fraud on the court.

JUDGE ROACH SAYS:

This is different than his opinion about terminating alimony on retirement because there is notice.

JUDGE MENNO SAYS:

Has seen only a few cohabitation cases.  Would examine how much the paramour is contributing to the household.