By Judge Jane Manning, Cobb County State CourtPrior to taking office in January 2017, I exclusively practiced criminal law. I suspect that, as practitioners of civil litigation, you have noticed that most new State Court Judges may be more learned in criminal rather than civil law. It is my observation that most judges in the state tend to come from the ranks of prosecutors. Like all new judges, I had a very steep learning curve—especially when it came to civil litigation. This begs the question, “How do I, as a plaintiff’s attorney, deal with a new judge that doesn’t know a thing about civil law?”
The short answer is, “Be patient.” All new judges want to do a great job and want to get it right. Accordingly, we look to you, as the counsel of record, to point us in the right direction. That said, my looking to, and relying upon, members of the civil bar in my rulings, is heavily dependent upon your credibility. In my brief time on the bench, I have identified several areas where attorneys have gained (and lost) credibility with me.
Motions in Limine
Due to my interest in evidence, I told my staff attorney early on that I would deal with the motions in limine. I thought that it would give me a chance to learn the evidence considerations in a civil trial. Two issues keep popping up in my review of motions in limine: careless editing and researching of submissions, and the failure of opposing counsel to converse with each other to see where there are agreements and disagreements.
It is challenging to receive 50 motions in limine on the eve of trial and have rulings on them completed quickly so as not to delay the trial. I have found that challenge increased when motions seem to be cut and pasted from another case, citations are plain wrong, and absolutely no framework has been supplied to the judge as to whether these issues may be in play at trial.
Provide me with context about how the evidence sought to be excluded by granting the motion in limine might come up at trial. For example, I received a well-tailored motion in limine where the attorney basically said, “My client has a twelve-year old burglary conviction. I don’t think it should come in on an auto tort case.” Needless to say, I granted that one because I was provided with the specificity and context I needed to make a determination. I prefer to see more of those types of motions than, “Irrelevant economic matters must be excluded.”
A plain frustrating element is when receiving motions in limine, is the apparent lack of communication between parties as to what issues might come into play. The pre-trial process is geared for the attorneys to talk with one another to narrow the issues for trial. In a recent medical malpractice trial, the attorneys had gotten along very well throughout the litigation. However, there seemed to have been no communication as to the Motions in Limine. Plaintiff filed 30 and the defense filed 20. There were at least three from each side that were identical to that of their counterpart. I feel that my time is respected when the parties present the court with a joint motion in limine on agreed upon issues and narrow the court’s consideration to the real issues in controversy.
Provide Me with
the Facts I Need to Decide
Often I feel that I must decide a motion where I do not have enough facts. During the discovery process, you are to find out facts. I understand that every case does not warrant extensive depositions. I recognize that 12(b)(6) motions are generally done early in a case where limited discovery has been done. However, maximizing your investigation and the discovery process may flush out relevant facts so I can make a timely and informed decision—and avoid an appeal that will cost your client time and money.
In one case, I was asked to determine whether the Family Purpose Doctrine applied. The at-fault driver could not be served, but the owner of the vehicle was served. As the accident report listed the driver’s address as the same as the owner’s address, the plaintiff tried to get the owner under the Family Purpose Doctrine. The owner replied in interrogatories that the driver involved in the accident was a mechanic and that she had left her granddaughter’s car with him to be repaired. The repairs ended up costing more than the owner wanted to pay so she left the car with the mechanic. Upon these facts, I was supposed to determine if the Family Purpose Doctrine applied. At the motion hearing, I found out that the driver/mechanic was the owner’s ex son-in-law and that he had lived with her for some time. When asked why this was not disclosed ahead of time, the defense counsel replied, “No one asked us that question.”
Cite Case Law That is Relevant
I strive to look up every case cited in a brief of any kind. I am continually astounded how many cases cited as authority fail to support their argument or proposition advanced. In one instance, the sentence following the one which was cited in the brief negated the proposition that the plaintiff was attempting to advance in a motion. Obviously, that motion was denied. Which brings me to another point: do not rely on another’s work unless you have looked up their citations.
In particular, if you are arguing for a motion in limine, I will find it infinitely more persuasive if you cite to a case involving a motion in limine. For some reason, parties seem to cite jury charge case law when arguing for a motion in limine. If you are arguing a directed verdict issue, do not cite a motion for summary judgment case.
I prefer pinpoint citations as they save me time.
If You Need
More Court Time, Ask For It
My Civil Motions Calendar usually runs between 20 and 30 cases. I know all of you hate to sit through long Motions Calendars to have your say in front of the judge. In my chambers, if your argument will take more than one hour, we ask that you contact us so we can specially set you to come in. In my more complex cases, I try to schedule at least two afternoons prior to trial that we can work out issues early.
Do not hesitate to ask for a special set hearing if your issue is novel or complex. In my short time on the bench, I have had three cases which presented issues of first impression. I would rather be able to delve into these issues with you singularly than have 20 lawyers anxiously awaiting their turn staring at me from the back of the courtroom.
Your Writing Tells Me
How Much You Care
About Your Case
I have found that the well-written brief tends to prevail over a poorly written one. It is not to say that a poorly written brief is any less important, but a well-written and well-researched brief will beat out a poorly drafted one. Remember that you are teaching me about the law as you write your motions and briefs. Accordingly, good craftsmanship is a welcome, albeit rare, treat. I also hate split infinitives.
Realize A Scheduling
Order is an Order
I have observed that many parties consider a Scheduling Order as more of a set of guidelines than what it is—an order. I, like every other judge on the planet, expect my orders to be followed. I am careful with scheduling orders as they will dictate your work schedule, but I also do not want cases stagnating on my docket because the case may not be as profitable, or it is otherwise not a priority, to you. I usually instruct parties to provide me with a joint proposed scheduling order when I feel that a given case is at risk of falling through the cracks or is taking too long to reach a critical stage. Attorneys that have failed to adhere to Scheduling Orders have drawn my ire—and will continue to do so.
Don’t Be So Quick To Put Away Those Demonstrative Aids
In two of my civil jury trials this year, the jurors requested to see the plaintiffs’ demonstrative aids during deliberations. Using my discretion, I was prepared to allow the jurors to view them again in court. Alas, in both cases, the plaintiffs had already removed them from the courthouse.
I Am Interested In
Learning Civil Law
To a person I have asked, every former criminal attorney who is a State Court judge enjoys civil law. For me, it has been an opportunity to dust off the old brain cells and become a student of the law again. I find it very challenging and interesting. I love learning about different industries and areas in our society.
I Realize That Your Cases Are Just as Important to Your Clients as They are to Criminal Defendants
I used to think, “Civil cases are just about money not someone’s freedom.” Now I understand that these cases affect your clients just as profoundly. I appreciate the diligence in which you prepare your cases and the stress you must have with dealing with your clients. These issues must be resolved so that businesses can continue to operate and individuals can continue with their lives.
You Can Expect That A Former Criminal Attorney is Well-Versed the Operation of A Trial Court
Criminal attorneys, especially prosecutors, probably have tried many more cases than the average civil litigation attorney. I literally was in court every day of my career prior to taking the bench. As such, I have an idea how a courtroom should be efficiently run. Under Georgia law, there is very little discovery in criminal cases. Prosecutors and defense attorneys attempt to move cases quickly so that they can maintain a manageable court load and get people in or out of custody. It boggles my mind that there are some civil cases that are over a decade old on my docket. You can expect that I will want to “move the business” as I did when I was a prosecutor. So, be prepared for your case to get to trial quickly.
As a new judge, I am going to rely upon the attorneys who strike me as the brightest and most prepared. I am impressed with well-researched and well-written pleadings, succinct arguments and an appreciation for the time constraints inherent in my position. Conversely, perceived disorganization and lack of preparedness will lose credibility and draw more negative attention from me. I know that my grasp of civil law will never be complete and my apprenticeship will end only when I leave the bench. I look forward to having you as my teachers on this journey.
About the Author
Judge Jane Manning, Cobb County State Court was elected to the Cobb State Court in May 2016 and took office in January 2017. Prior to her taking office, Judge Manning was an Assistant Solicitor General with the office of the Solicitor General of Cobb County for 15 years. She also was the managing partner at Hesmer and Manning for four years. Judge Manning received both her undergraduate and law degrees from Emory University.