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The Rules Enabling Act, 28 U.S.C. § 2071-2077, authorizes the Supreme Court to prescribe general rules of practice and procedure, and rules of evidence for the federal courts.  Along with the Act, the rulemaking process is governed primarily by the Procedures for the Judicial Conference’s Committee on Rules of Practice and Procedure and its Advisory Rules Committees, which are made up of judges, law professors, and practicing lawyers.  Congress, through the Act, retains the ability to review and reject any rule adopted by the Supreme Court.

Several amendments to the Federal Rules of Civil Procedure (FRCP) took effect on December 1, 2025, while a new set of proposed amendments closed their public comment period in February 2026. Also, last Fall, the Advisory Committee’s agenda discussed several rules proposals, which may come to fruition soon.

It is axiomatic that federal court practitioners should be aware of the changes to the Federal Rules, along with keeping abreast of the proposed changes, so that they can most effectively represent their clients in federal court.

I. Amendments Effective December 1, 2025

1. Rule 26(b)(5)(A) – Privilege Logs and Early Case Management

The December 2025 amendments emphasize that courts should address the method and timing of privilege log compliance at the outset of litigation. This change aims to reduce discovery disputes and streamline privilege log production—an increasingly burdensome task in large scale and class action litigation.

2. New Rule 16.1 – Multidistrict Litigation (MDL) Case Management

The most significant December 2025 development is the adoption of Rule 16.1, the first rule dedicated specifically to MDL case management. It provides a structured framework for:

• Leadership appointments

• ESI preservation and production

• Coordination of discovery

• Early identification of common vs. individual issues

Given that MDLs now comprise nearly 70% of the federal civil docket (driven largely by product liability, consumer, and personal injury lawsuits), the amended Rule 16.1 modernizes the management of complex litigation and directly affects class actions frequently consolidated into MDLs.

II. Proposed Amendments with Public Comment Closed February 2026

The Advisory Committee’s proposed FRCP amendments, for which the comment period closed February 16, 2026, include the following:

1. FRCP 7.1 – Expanded Corporate Disclosure

The proposed amendment would require disclosure of business organizations that directly or indirectly own 10% or more of a party. This proposed amendment enhances transparency and assists courts in evaluating conflicts of interest.

2. FRCP41(a) – Clarifying Voluntary Dismissal

The amendment clarifies that only the remaining parties must sign a stipulation of dismissal and that the dismissal may apply to the entire action or specific claims. 

3. FRCP 45(b) – Expanded Subpoena Service Methods 

The proposed amendment would broaden permissible methods of serving subpoenas, easing service on corporate representatives and individuals in restricted access locations. 

III. Potential Future Amended Rules Proposals

• At its October 2025 meeting, the Advisory Committee discussed, among other items, potential amendments to the federal class action rule, as well as a potential rule requiring disclosure of third-party litigation funding.  While no specific proposed amendments are before the committee at this stage, the committee’s agenda reflected growing interest and potential amendments to FRCP 23, which most notably align with the recent amendment to Rule 16.1 directed to MDL case management (which are often tied to class actions). Among the potential amendments discussed by the Committee:

• Superiority Requirement (Rule 23(b)(3):  The potential amendment would expressly allow courts to consider non-litigation remedies, such as voluntary refunds, recalls, payments, etc., in deciding whether a class action would be superior to other methods for resolving disputes.  

• Incentive Awards:  The Committee is considering whether to amend Rule 23 to expressly permit incentive awards for class representatives.

• Pre-Certification Rule 23(e) Settlement Approval Procedures:  The Committee is considering a proposal that would require court approval of individual settlements between named plaintiffs and the defendant(s).

As to third-party litigation funding, the proponents of a new rule have suggested that it be modeled on the portion of FRCP 26(a) which requires disclosure of insurance policies providing coverage for a judgment against defendants. In the meantime, Congress is also looking to address litigation funding, via proposed legislation.  

Again, these topics remain under active study and may appear in future rule-making cycles.   It will be worthwhile to monitor the progress of these proposals.  

Seitz is the Co-Chair of the WCBA Federal Practice Section and a member of Dykema Gossett PLLC, where serves as the Practice Leader for the Financial Services Litigation Group.  His practice primarily focuses on trial, appellate, and class action defense, with a special focus on representing banks, financial services, and media companies, along with local governments, public officials, and associations. He regularly appears and practices in state and federal courts throughout the country, including the United States Supreme Court.

Reprinted with permission from the Washtenaw County Bar Association newsletter Res Ipsa Loquitur.

“Far out over the lake the filmy smoky shafts of the Northern Lights wavered and raced in trailing scarves of light, shifting and melting across the flaming sky in great dripping organ pipes of silent melody.”

“The night was so eerily beautiful I purposefully took the long way around the moon-drenched lakeshore, with its gleaming and jagged mounds of ice looking like frozen waves.”

    *****************

“Far out over the lake the filmy smoky shafts of the Northern Lights wavered and raced in trailing scarves of light, shifting and melting across the flaming sky in great dripping organ pipes of silent melody.”

These are but two of the poetic descriptions of Michigan’s Upper Peninsula that provided sanctuary and renewal for the young trial lawyer at the center of Robert Traver’s 1965 book, “Laughing Whitefish.”  

Robert Traver was the pen name of John Voelker, a justice of the Michigan Supreme Court 1956-60. Despite writing more than 100 opinions while on the court, Voelker is best known by his pen name as the author of “Anatomy of a Murder.” The 1958 book was on the New York Times Bestseller List for 62 weeks and became a celebrated Academy Award nominated movie. 

Upon retirement, Voelker returned to Ishpeming where he continued his literary career and greater passion as an avid fisherman. Under the pen name of Robert Traver, he would go on to write eight books and numerous essays. 

“Laughing Whitefish” was Voelker’s only historical novel.  It is based on a trio of Michigan Supreme Court cases from the 1880s recognized as a “Michigan Legal Milestone” in 1992.

In 1845, as set forth in the “Milestone” text, Marji-Gesick, an Indian Chippewa chief, was hired by the Jackson Iron Company to identify an iron ore deposit known only to indigenous peoples. In return for his work, “he was paid with a Certificate of Deposit entitling him to stock in the company.”   

When the mine became profitable decades after Marji’s death, his daughter, Charlotte Kawbawgam, known by her Indian name “Laughing Whitefish,” sought to enforce the ownership interest through a series of court cases and subsequent appeals.  

The company refused to honor her as a lawful heir because “she had been born to one of three women to whom her father had been married simultaneously.” The progeny of polygamous unions was not recognized as legitimate heirs under Michigan law.  

Notwithstanding, in a “landmark Michigan Supreme Court decision acknowledging that tribal laws and customs govern the legal affairs of Native American families,” the court “concluded that since the marriage was valid under Chippewa law, it must be recognized by Michigan’s courts” and the validity of her claim was upheld.

“Laughing Whitefish,” the novel, received favorable reviews albeit with a few reservations.  New York Times critic Allen Drury suggested that “Mr. Traver might have judiciously eliminated an almost impenetrable Cornish dialect” of a local U.P. bartender from the introductory chapter. Noting that the book “becomes a constant delight” thereafter, Drury missed a key aspect of the bartender episode.

The bartender’s Cornish dialect is a great chore for any reader to work through, but it set the table for the true story Traver was about to tell. To penetrate the cultural barrier at the heart of “Laughing Whitefish,” readers would not only have to learn Indian customs, but reorient perspective to understand the impact that “white law” had on Indian culture.

By first presenting the reader in Chapter 1 of the novel with the chore of trying to understand a “white” dialect that could be viewed as equally impenetrable as Indian culture, Traver invited readers to reassess cultural barriers.

The prose in Chapter 2 of “Laughing Whitefish” is the complete opposite. There, we learn about Willy Poe, the 26-year-old law school graduate who moved to the Upper Peninsula alone and without references. 

Lawyers will see themselves in Willy’s “doubt and soul-searching” whether law should have been his chosen career.  Having been recently fired from his first job, lawyers will also understand the now diminished prospects he faces and fretful fears.

Then, in a moment, those concerns are upended when the most significant case that he, or any practitioner might ever land, finds its way to his doorstep.  

Why did that happen?  Because no lawyer in the Upper Peninsula other than William Poe, Esq. would be foolish enough to oppose the powerful Jackson Iron Company based on a decades old ownership claim asserted by the illegitimate daughter of a deceased Indian chief. 

In the hands of Robert Traver, this is the recipe for good storytelling.

“Laughing Whitefish” is filled with themes of idealism, racial and religious prejudice, corporate greed, and the uncertain process of high stakes litigation and individual integrity.  These themes were not of new acquaintance to the life experience of lawyer John Voelker.  Being reared in the Upper Peninsula also contributed to other equally compelling themes in the book.

Voelker’s grandparents were two of many German immigrants to Upper Peninsula mining towns.  His father was born in Ontonagon in 1860 where he learned to speak the Ojibwe language before learning to speak English.  From his earliest days, Voelker saw white prejudice degrade the Indian culture that his family knew and respected.  

Idealism, integrity, perseverance shine in Traver’s rendition of the historical events in “Laughing Whitefish.” In the romantic conclusion to the novel, they counterbalance but did not erase the preceding legacy of prejudice, corruption, and deceit in America’s treatment of immigrants, indigenous peoples and persons of color.  

Justice Voelker was hopeful that someday they might. 

________________

(Editor’s Note – Consistent with his wishes, the John Voelker Foundation, established after his death in 1991, sponsors the Native American Law School Scholarship and the Robert Traver Fly Fishing Writing Award.) 

Among the procedural tools available to arbitrators and parties, bifurcation remains one of the most useful. The decision to divide an arbitration into distinct phases, most often liability and remedy, or jurisdiction and merits, can shape the cost, pace, and fairness of the proceeding. Used thoughtfully, bifurcation can simplify a complicated case and create meaningful opportunities for settlement.

Among the procedural tools available to arbitrators and parties, bifurcation remains one of the most useful. The decision to divide an arbitration into distinct phases, most often liability and remedy, or jurisdiction and merits, can shape the cost, pace, and fairness of the proceeding. Used thoughtfully, bifurcation can simplify a complicated case and create meaningful opportunities for settlement. Used reflexively, it can prolong the hearing and increase expense. This article examines bifurcation in arbitration, where the authority to order it originates, and practical considerations which should inform whether a phased hearing will promote efficiency and fairness.

I. Defining Bifurcation in the Arbitral Context

Bifurcation in arbitration is the process of separating issues within one case into distinct phases, whether for purposes of hearing them separately, deciding them separately, or both. The most familiar model separates liability from damages or remedy. 
Another common model separates threshold issues, such as arbitrability, jurisdiction, timeliness, or standing, from the merits of the underlying claims. In labor and employment matters, bifurcation often appears in discipline and discharge cases when the parties elect to address just cause first and reserve remedy issues unless they become necessary.

Bifurcation can take several forms. In a labor arbitration, an arbitrator might decide whether the employer had just cause for discipline before hearing evidence on remedy. In an employment dispute, the arbitrator may address an affirmative defense or another threshold issue before proceeding to the full evidentiary presentation. In statutory fee-shifting employment cases, the arbitrator may decide liability first and reserve for a later phase the issue of fee entitlement and the reasonableness of the fees and costs sought.

II. The Rationale for Bifurcation

The principal rationale for bifurcation is efficiency. When an early ruling on a threshold issue could dispose of the case, or substantially narrow what remains, a phased hearing may spare the parties and the arbitrator from devoting time and money to evidence that never becomes material. For example, in a discharge case, a finding that the employer had just cause may eliminate the need for a separate remedy phase. By contrast, if the arbitrator finds no just cause, a second phase may still be necessary to address reinstatement, back pay, mitigation, offsets, interest, or other make-whole issues.

Bifurcation may also assist in managing complexity. In matters involving extensive records, multiple categories of damages, expert testimony, or difficult threshold defenses, sequencing the issues can help the arbitrator focus on a discrete set of questions before taking on the next layer of proof. That can improve the clarity of the record and sharpen the parties' presentation.

Fairness is also an important consideration. A claimant may benefit from obtaining an early ruling on a jurisdictional objection or other threshold defense that would otherwise cloud the entire proceeding. A well-considered bifurcation order can therefore promote both efficiency and procedural fairness.

Finally, bifurcation can encourage settlement. Once the arbitrator resolves liability or a threshold defense, the parties often reassess risk more realistically. That recalibration can narrow the issues and create a better environment for resolving the remaining dispute without the cost of a second full presentation.

III. Authority to Bifurcate

The authority to bifurcate may arise from the parties' agreement, from the applicable arbitration rules, or from the arbitrator's procedural authority to manage the hearing. Under the American Arbitration Association Commercial Arbitration Rules, R-33(b), the arbitrator may direct the order of proof and bifurcate proceedings. JAMS rules similarly give the arbitrator broad authority to control the conduct of the hearing, determine the order of proof, and decide jurisdictional and arbitrability issues as a preliminary matter. In most administered cases, therefore, bifurcation fits comfortably within the arbitrator's procedural authority.

Where the parties have agreed in advance to a phased structure, whether in the arbitration clause, a post-dispute submission agreement, or a procedural stipulation, the arbitrator should ordinarily honor that agreement so long as it is consistent with the governing rules and applicable law. Where bifurcation is contested, however, the arbitrator must exercise independent judgment. That judgment should be guided by whether a separate first phase is likely to dispose of the matter, materially narrow the issues, or otherwise improve the fairness and manageability of the proceeding.

In labor and employment arbitration, the collective bargaining agreement, employer policy, or dispute resolution plan may speak directly to hearing procedure. Even when the governing instrument is silent, past practice or the parties' expectations may inform whether a bifurcated structure is appropriate. For that reason, an arbitrator considering bifurcation should consult the governing framework carefully before ordering a phased process sua sponte.

IV. Strategic Considerations for the Parties

From the claimant's perspective, bifurcation can be either advantageous or limiting. When liability is strong and the scope of the harm is important to the overall equity of the case, the claimant may prefer a unified presentation that allows the arbitrator to understand the full practical consequences of the challenged conduct. In other cases, however, a claimant may welcome a first phase focused solely on liability, particularly where an early ruling may promote settlement or avoid disclosure of information that is better reserved for remedy.

For the respondent, bifurcation can provide a meaningful opportunity to limit cost and exposure. A strong threshold defense, or a substantial defense on the merits, may justify asking the arbitrator to hear liability first. At the same time, a respondent may resist bifurcation when remedy evidence would provide context that softens the force of an adverse liability finding or when the issues are so intertwined that separating them would create duplication rather than efficiency.

Both sides should also consider the evidentiary consequences of a phased proceeding. Some evidence will overlap. Counsel should think carefully about what proof belongs in the first phase, what should be reserved, and how testimony given in phase one may affect the arguments advanced later. Bifurcation requires disciplined presentation and a clear understanding of the relationship between the issues being separated.

V. Procedural Management of the Bifurcated Hearing

When bifurcation is ordered, the arbitrator should memorialize the decision in a clear procedural order. That order should define the issues to be heard in each phase, identify the sequence of presentations, establish any page or time limits, and state how the arbitrator intends to communicate the phase one determination. Precision at the outset reduces the risk of later disputes about scope or sequencing.

The first phase should be conducted with the same rigor as any other arbitration hearing. Each party must have a full opportunity to present evidence, examine and cross examine witnesses, and argue its position on the issues assigned to that phase. 
Bifurcation is a method of sequencing the inquiry. It is not a justification for abbreviating the parties' right to be heard.

After the first phase, the arbitrator should issue a written ruling that clearly resolves the matters submitted. Depending on the case, that ruling may be labeled an interim decision, an interim award, or a partial award. The ruling should explain the basis for the determination with enough specificity to guide the parties as they prepare for what comes next, while avoiding unnecessary discussion of issues reserved for the second phase.

The question of finality deserves careful treatment. A phase one ruling does not automatically become a final award simply because it resolves liability before remedy. Whether it is treated as final may depend on the parties' agreement, the governing rules, and the law applicable to confirmation or vacatur. For that reason, the arbitrator should address finality expressly in the procedural order and, where appropriate, in the phase one ruling itself. If the parties intend a partial final award, that intent should be stated clearly. If they do not, the order should make plain that the ruling is interlocutory and that additional proceedings remain.

In labor arbitration, the question of finality is closely tied to the doctrine of functus officio, under which an arbitrator who has issued a final award generally loses authority to revisit the matter. This doctrine has long shaped how labor arbitrators structure remedy phases. The leading treatise, Elkouri and Elkouri, How Arbitration Works, reflects the established practice of expressly retaining jurisdiction over remedy when a grievance is sustained, rather than treating the liability determination as a complete and final award. By reserving jurisdiction in the award itself, the arbitrator preserves authority to resolve disputes over back pay, mitigation, offsets, and the precise terms of a make-whole order if the parties cannot agree. A clause retaining jurisdiction for a defined period is therefore a common and prudent feature of a sustained discipline or discharge award, and it allows the parties a first opportunity to implement the remedy themselves before returning to the arbitrator.

VI. Limitations and Cautions

Bifurcation is not universally beneficial. One risk is that issues separated on paper may prove difficult to separate in practice. Liability and remedy evidence may overlap, and the effort to keep them apart can lead to duplication, piecemeal testimony, or an incomplete picture of the dispute. In such cases, a unified hearing may better serve efficiency and coherence.

Delay is another concern. If the second phase cannot be scheduled promptly, bifurcation may lengthen the overall life of the arbitration rather than shorten it. The possibility of settlement after phase one may justify that risk in some matters, but it should not be assumed. Arbitrators and counsel should assess scheduling realities, witness availability, and the likely time lapse between phases before adopting a bifurcated structure.

There is also the risk that the anticipated efficiency gains will not materialize. A first phase may narrow the case only modestly, leaving most of the same evidence and argument for later. In that setting, the administrative burden of two hearings, two rounds of briefing, and two procedural calendars may outweigh the benefit of sequencing.

Finally, the arbitrator should remain attentive to perceptions of fairness. Because bifurcation often benefits one side's strategic position more than the other's, a decision to bifurcate should be transparent, reasoned, and tied to the specific circumstances of the case. A carefully explained procedural order is one of the best safeguards against the appearance that sequencing decisions were made arbitrarily or with favoritism.

VII. Conclusion

Bifurcation is often a valuable procedural tool. When used in the right case, it can reduce costs, sharpen the presentation of threshold issues, and promote settlement. When used in the wrong case, it can create delay, duplication, and unnecessary complexity. Its value therefore derives not from its availability, but from its careful application.

For arbitrators, the decision to bifurcate calls for practical judgment, attention to the governing rules, and a clear articulation of the reasons for the chosen structure. For parties and counsel, it requires a realistic assessment of whether a phased hearing will actually simplify the dispute or merely rearrange it. Approached with deliberation and transparency, bifurcation can serve both the parties and the arbitral process well.

Lisa W. Timmons is the Executive Director and a senior member of Professional Resolution Experts of Michigan (PREMI), Michigan’s premier group of seasoned, invitation-only arbitrators and mediators. Timmons is a full-time arbitrator, mediator, and attorney with more than 28 years of experience as a neutral. She serves on arbitration and mediation panels of the AAA, FMCS, the National Mediation Board, MERC, and the permanent panels of the USPS, NALC, and APWU. 

About a year and a half ago, one of your business clients called. A customer of theirs filed for bankruptcy, and they wanted your guidance. You helped them file a Proof of Claim, noting that meaningful recovery was unlikely. You suggested the client review its records for any telltale signs that might help them identify problem cases like this one, for future preemptive action. Your client thanked you, happy to put the matter behind it.

By Ronald A. Spinner and Steven A. Roach

About a year and a half ago, one of your business clients called. A customer of theirs filed for bankruptcy, and they wanted your guidance. You helped them file a Proof of Claim, noting that meaningful recovery was unlikely. You suggested the client review its records for any telltale signs that might help them identify problem cases like this one, for future preemptive action. Your client thanked you, happy to put the matter behind it.

Today, you received a call from your now anxious client. They just received a letter written on the bankrupt company’s behalf. The letter demanded that your client “return” a significant amount of money (much more than listed in its Proof of Claim) that the letter claimed your client had received in the 90 days prior to the debtor’s bankruptcy filing. The letter’s tone was almost apologetic. The letter stressed that the client did nothing wrong, but insisted that the debtor could still demand this money back, offering a slight “discount” for quick payment. One thing was clear:  if your client doesn’t pay soon, it will be sued. Your client is surprised and concerned (and a bit miffed). How can they do this? Can you help? 

Your client just received a “preference demand.” This article discusses what that is, why debtors make them, and the two most common defenses used to minimize exposure to them. 

“What the heck is a ‘preference?’”

The concept of “preference” dates back to old English law. Old English judges believed that debtors know when they are in trouble. When they are, debtors begin to choose which bills to pay and which to ignore. Aggressive or important creditors are paid “preferentially” over less critical ones, even though most have similar rights in an insolvency proceeding. Those paid will have received at least some funds when a bankruptcy case is eventually filed. The rest get little or nothing.

English judges thought this approach was unfair. They believed that all unsecured creditors who received funds from a debtor in the months prior to bankruptcy should pool the money received so that it can divided pro rata amongst them. This idea became enshrined in U.S. law, setting the 90-day window immediately prior to the bankruptcy filing as the lookback, or “preference,” period.  U.S. law also provided creditors with defenses, so that they would continue to work with troubled companies rather than flee at the first sign of trouble. The “demand letter” is the first step of the process, seeking return of funds a creditor received from the debtor. 

“So, what do I do when my client gets a letter like this?”

First, don’t panic! The defenses discussed here (and others) usually can mitigate the demand, and usually by more than the typical 5-25% discount a trustee may offer for quick payment. The two most used defenses are “subsequent new value” and “subjective ordinary course.” 

“Subsequent new value” is usually the harder of these two for a trustee to challenge, though the defense is limited in scope. Its concept is simple:  if a debtor makes a payment to a creditor, and the creditor subsequently delivers goods or services to the debtor worth as much or more than the payment, then the debtor ends up no worse off. The “new value” provided by the creditor “subsequent” to the payment replenishes the debtor’s estate. Of course, only subsequent replenishment counts, and the estate must truly benefit from these goods and services for this to apply. For instance, if goods provided are subject to an unavoidable lien, they won’t count for this defense.

The other common defense is the “subjective ordinary course of business" defense. This defense applies if a creditor’s transactions with the debtor during the preference period are very similar to those prior to the preference period. If the creditor did not suddenly change payment terms or start calling the debtor repeatedly for payment, and if the debtor did not suddenly start paying more slowly or quickly than before, then this defense might shield some of the debtor’s payments from recovery. Of course, showing that transactions were “ordinary” usually requires a bit of statistical analysis, but a good preference defense attorney can handle that. 

Attorneys who know the technical details of how these two defenses work can combine them, yielding greater savings.

The bottom line?  Preferences usually can be resolved, often without litigation

There are other defenses, of course, but suffice here to say that most preferences can be mitigated, at least to some extent. The best thing you can do when your client receives a demand letter like this is to connect them with a reputable preference attorney. 

The preference attorney can help them determine what their defenses are and what their exposure might be. 

A good preference defense attorney will attempt to resolve the demand through negotiation, rather than litigation, to minimize expenses. Most trustees are amenable to (and, pun intended), “prefer” such an approach. 

Sooner or later, most companies get one of these letters. The good news is that these demands can be resolved, often for far less than is demanded. While no one “prefers” to get one of these letters, it is good to know that these letters usually are not as threatening as they initially appear. 


Ronald A. Spinner is a principal at Miller Canfield whose practice focuses on bankruptcy, restructuring and insolvency, including creditor representation, distressed transactions, loan enforcement and related matters. He is known for developing practical, results-oriented strategies in complex matters, including novel issues involving Chapter 9 proceedings, preference defense and cryptocurrency in bankruptcy.

Steven A. Roach is a principal at Miller Canfield with 40 years of experience in commercial transactions, loan enforcement, restructuring and insolvency matters. He represents financial institutions, secured lenders and other clients in workouts, receiverships, bankruptcy-related disputes and complex commercial litigation.

Reprinted with permission from the Washtenaw County Bar Association Res Ipsa Loquitur newsletter.

When new leadership assumes top executive roles in an institution but lacks prior experience in the organization or specific field, extra steps must be incorporated in the transition of leadership. That is especially true, when course-changing policy initiatives are involved.  

Nick Bolton, the new Executive Producer of “60 Minutes,” and Bari Weiss, the new Editor-in-Chief of CBS News, have backgrounds in journalism, but neither has prior experience in broadcast news. At issue for staffers and the public is whether Bolton’s and Weiss’s actual intent is to “kill” the highly-rated Sunday night program. 

If their purpose is otherwise, that is, to create meaningful reform while preserving “60 Minutes” as an independent voice of a free press, then the new CBS executives should have taken a much different approach to the transition of leadership.  

This commentary – based on recent personal experience – will examine the “right approach” to leadership transition where reforms are on the agenda and the qualifications of new leadership are an issue.

In 2020, Eli Savit won the August primary as the Democratic candidate for Washtenaw County Prosecutor in the November general election.  Although he grew up in Ann Arbor, Savit’s prior professional experience was outside Washtenaw County.  

As a then 38-year-old lawyer, Savit’s resume was impressive.  After law school, he clerked for Supreme Court Justice Ruth Bader Ginsberg.  At the time of the campaign, he served as senior legal counsel for the City of Detroit with extensive experience in civil litigation and appellate work. 

Savit, however, had no prior experience as a prosecutor. In the primary, his principal opponent was an “insider,” a respected assistant prosecutor in Washtenaw County.  Both candidates ran on Progressive Platforms contrasting proposed policy initiatives with the soon-to-be past administration.

As Democratic nominee for the position in Washtenaw County, Savit was a proverbial “shoo-in” to win the general election and assume office in January 2021.  What he accomplished during the four-month interval between nomination and “swearing in” is an example of the “right approach” and model to successful transition by a reform candidate. 

The model is not unique to Savit, but there are parallels and contrasts to the ongoing “60 Minutes” transition. 

What Reforms?  Be Specific with Detail and Support

A wide array of lawyers and volunteers supported Savit’s campaign in Washtenaw County.  He put them to work in August to create 14 written “Policy Directives,” totaling 95 pages, setting forth the underlying rationale and legal support for Progressive changes promised during the campaign.

The Policy Directives were posted on the Washtenaw County Prosecutor Website in January 2021 and remain available online to date.

Lesson 1:  If you run on a reform agenda, show that it is serious, support the reasons, and provide the detail to its implementation.

Lack of Prior Experience?  Address the concern

Savit’s campaign supporters in the August primary did not include individuals with prosecutorial experience.  This was not surprising. Assistant Washtenaw prosecutors who made known their candidate of choice uniformly supported their fellow assistant prosecutor.

Although I did not know Savit prior to August, I joined his transition team as one of many volunteers after the primary. Recently retired from Dykema, I provided six years of prosecutorial experience at the beginning of my career followed by White Collar criminal defense work in private practice. In 2016, I served as pro bono lead counsel for Davontae Sanford in an exoneration case receiving national press.

Along with later being selected to serve on his “Kitchen Cabinet,” my initial contribution to the transition was to personally interview all assistant prosecutors in “one on one” sessions. The reason was threefold.

First, to provide Savit with a preliminary assessment from a prosecutorial perspective of the talent, range, and expertise of the current staff.  Second, to establish a “two-way” street for the staff to begin to provide critical input for the implementation phase of the Policy Directives. Third, through the lens of an experienced practitioner to learn about the prosecutor’s office from “insider” perspectives and solicit suggestions they might additionally have to improve its performance.

In September, Savit selected a 10-member “Kitchen Cabinet” to advise him during the transition. The cabinet was balanced and diverse including experienced lawyers with varied backgrounds and non-lawyer community leaders.  The “Kitchen Cabinet” met regularly by Zoom with set agendas, assignments, prep work, and continual updates.

Lesson 2:  If your qualifications for office do not include prior experience, shore it up during the transition so it does not remain an issue.  

Lesson 3:  Reach out to the existing staff in a meaningful and time invested manner for expertise and input. If you don’t, you risk creating an adversarial relationship with staffers from the onset.

As presumptive prosecutor, Savit expanded his outreach during the transition period to the business, education, and judicial communities in Washtenaw County as well as to local police chiefs and law enforcement.  

He sought input, answered questions, and sought to identify and address possible frictions that could be avoided or minimized through greater partnership and cooperation.

Lesson 4:  You are now in a position of authority; expand your horizons to agencies and individuals you will interact with as part of your responsibilities.  They may have valuable insights you do not yet appreciate.

Transition without Drama  

The principal goal for Savit’s transition was to “hit the ground running” in January.  The new Policy Directives were previewed to a wide audience and the subject of robust analysis by the Kitchen Cabinet.  Many steps were taken to ensure procedural and administrative continuity.  Most importantly, while reforms were on the agenda, it was equally important to the new prosecutor to preserve the integrity and professionalism of the institution of county prosecutor and its dedication to public safety.

As noted, this model for the “right approach” to the transition of Leadership – where reforms and preserving the integrity of the institution is at the shared forefront of concern – is not new.  

The model has been utilized by like-minded leaders, irrespective of partisan affiliation, for leadership transitions in institutions of journalism, science, medicine, education, and many others.

Over the last year and a half, the Trump Administration rejected this approach by installing new leadership at the Department of Defense, Health and Human Services, the Environmental Protection Agency, and other federal institutions through the “chainsaw” model of transition championed by Elon Musk.

What is jeopardized by this model of transition is the integrity and continued professionalism of the institutions and agencies.  They serve not only in their respective areas of responsibility and expertise, but also as “checks and balances” on private and competing government interests. 

In that stead, they also provide independent perspectives and non-partisan sources of information to assist the public and other government officials to arrive at informed judgments.  

Which method of transition should now be followed, or course corrected to going forward, is the issue confronting the new CBS executives.

Somehow shouting at a robot instead of a baseball umpire  is not as satisfying as the insults I enjoyed shouting while sitting in the bleachers where the air is thin.

Somehow shouting at a robot instead of a baseball umpire  is not as satisfying as the insults I enjoyed shouting while sitting in the bleachers where the air is thin.

I knew the umpire was as blind as a bat even though I was 500 feet from home plate while he was right behind the batter.

But now I will have to vent my good-natured anger at a robot -- yes, a robot -- which the baseball major leagues will begin using this season to keep umpires honest. It is called the Automated Ball-Strike System (ABS).

And the robot doesn’t even have the courage to stand behind the batter, but is hidden in technology around the stadium.

As I understand it, three players -- the batter, pitcher and catcher -- can now ask for an instant replay to challenge calls of strikes and balls by umpires. The players do this by tapping their helmets but not by stomping their feet, kicking dirt, or calling umpires names I can’t print in this column.

Once a challenge is made, videos -- a Hawk-eye camera system which captured the pitches with cameras around the stadium -- will be replayed and shown, via animation, on the scoreboard and broadcast booths.

If I don’t like the decision, I guess I can scream at the scoreboard: “Who the hell programmed you?” Or: “Did your USB cord become entangled with the mouse?” Or: “Your motherboard obviously lost all memory.”

True, that’s enticing, but not as satisfactory as all the names I called umpires through the years, especially the ones who called the games when I played in neighborhood softball leagues.

I remember the time…nope, can’t tell that one. But it was a good one.  The cops agreed with me.

The system has been tested in the minor leagues and the turnover rate is pretty high. One report says that in spring training this year, 53 percent of 1,844 challenges were successful.

That made me feel good because it “proves” I was right more than 50 percent of the time in the bleachers. Who needs robots?

If a team wins a challenge, it can keep challenging. As soon as a team loses two challenges, it won't have the ability to challenge again.

The key statistic fed into computers is a player’s height. They can crouch all they want to, but it won’t make any difference. The computers know what the players are doing. Umpires do not have to order batters to stand up straight.

But it does create a new problem now suffered by computers in businesses: Hacking. I can envision teams hiring “designated hackers” to be used in serious situations. Let’s say it is the seventh game of a World Series, in the bottom of the ninth and the batter is facing a 3-2 count with the bases loaded.

I can hear managers in both dugouts ask, “Where’s the hacker?  He’s up.” And I can see the umpires smile.

It also opens the doors to other questionable innovations, like programming computers to decode signals from third base coaches or steal signs from catchers to pitchers, a responsibility usually assigned to shortstops and second basemen.

The possibilities are endless and could put the 1951 baseball scandal involving the Giants and Dodgers to shame. Baseball lore has it that Giants Manager Leo Durocher had a system of stealing a catcher’s sign and had the Dodgers’ choice delivered to his batter, Bobby Thomson, who hit the “shot heard ‘round the world,” giving the Giants the pennant. It was, arguably, the most famous home run in baseball history.

No computers were involved.

Believer or not, one umpire, Bill Miller, actually rooted for the robot when he was challenged in a game between the Giants and Guardians in Scottsdale, Arizona. He called a ball on a batter who had a 0-2 count. On an open mic, Miller was heard saying, “Please be a strike,” meaning the batter would be out. (The robot confirmed Miller’s call.)

But no one could understand why Miller wanted to be wrong.  Some speculated it was hot and he wanted to end the game as quickly as possible because maybe he had a hot date.

But a colleague of his, Richie Garcia, doesn’t like the new system at all, complaining that umpires would be embarrassed in front of thousands by some “computer geek who doesn’t know anything about baseball.”

As a fan, I don’t know what to do. Keeping quiet in the bleachers does not sound appealing to me.  I’m confident the guy next to me, the one I have argued with for years, probably feels the same way.

What if the computer I decide to cuss out for what I believe is a bad decision is armed with a long-range laser? What if it calls a computer buddy and asks it to jam my printer? 

I am also curious what baseball purists of all the yesterdays would think of this development. We could ask a neutral computer.

I guess the best thing to do is praise Hawk-eye for calling a good game and invite it out for a beer.