Probate Section topic: Hon. Richard J. Garcia-A view from the bench

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By Roberta M. Gubbins

Legal News

Hon. Richard J. Garcia, Ingham County Probate Court Judge, opened his discussion of "A view from the bench," recommending that a lawyer "approach going to court in a way that puts you in the shoes of the person sitting behind the bench."

Looking out at the 36 people attending the Ingham County Bar Association Probate Section meeting on March 19th held at the State Bar Building in Lansing, he said, "ask yourself how would I decide this case?"

Before coming to court:

Before you come to court, ask, "Is this something that I really need to go to court with?" The risk of a court hearing, he noted, is that you will get a result that is unpalatable to your client. The better choice is to meet with the opposing side with the clients present--"sit and talk in the same room"--and reach a resolution that both can live with. If that doesn't result in an agreement, then schedule the matter for a hearing.

Upon arrival at the courthouse, remember that "details matter. When something is missing George Strander will tell you to go away." Make sure that when you check in, the file is complete. Judges, he noted, vary in how they handle matters so it is wise to know their procedures.

In the court:

"Walking into the court," he said, "is walking into the area of the unknown and everyone is nervous."

The judge, he said, wants to fashion a solution that is reasonable so "help him out; explain why it is reasonable for the judge to give you what you want.

"Don't put down the other lawyer. That wastes my time. If winning, don't bring attention to yourself, sit down and smile. Don't ask questions, the judge is there to make a decision on the material provided."

Judges work in the realm of reasonableness so "tailor your argument to that position, then sit down."

After the court hearing:

An order must be entered. Many lawyers come to court with an order prepared and others file one under the Seven Day Rule, which means, "that the parties have seven days to enter the order and the opposing party has seven days to object. Remember you are only entitled to an order that reflects what I said."

He suggested that the parties get the transcript of the hearing and "read it." If both parties agree, it is possible to say the motion is granted for the reasons stated on the record and, if it accurately reflects what was ordered, it will be signed. Ninety-four percent of all custody hearings are resolved without going to court.

In answer to questions, Judge Garcia said:

When asked about mediation, he said that if the parties wanted to schedule a mediation that was fine, however, the problem seems to be an issue of time. Under the new Supreme Court mandates regarding time between opening and closing a file, it can be difficult, however, "you can do mediation any time," even early in the case.

When asked the length of a brief, he said that ten (10) pages were adequate. He also mentioned that the court rules require a Judge's desk copy of the brief, which he and his law clerk read. The brief, he noted, is a resource for the court and should answer the central questions of the matter.

Judge Garcia has served as Probate court and Family court judge since 2000. He graduated from the University of Michigan College of Law in 1985. He completed his undergraduate work at Notre Dame. He is past chair of the Michigan Civil Rights Commission and Co-chair of the Michigan Alliance against Hate Crimes. He lives in Lansing with his wife, Jodi. When asked why do you live in Lansing?, his answer is because it is less cost for more house and the children he sees when he is walking the dog are often the children he sees before him when on the bench.

Published: Mon, Mar 25, 2013

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