Representing your self in court.

I cannot speak for other judges, but the following information may be helpful for persons representing themselves in court.

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People do have a constitutional right to proceed in propria persona in the courts of this state. Const 1963, art 1, § 13.  However, individuals who represent themselves in Michigan's courts are held to the same standards as members of the state bar. Baird v Baird, 368 Mich 536, 539 (1962).  The Court can not overlook a party's tactical errors or consider documentary evidence that was not submitted to the trial court merely because a party acted in propria persona. Amorello v Monsanto Corp, 186 Mich App 324 (1990).

Judges, clerks and court house staff cannot provide legal advice. Do not ask court employees for legal advice. If you want legal advice, talk to an attorney or consult the Michigan Court Rules and Michigan laws. Court employees are allowed to provide procedural information only.

On the day of your hearing arrive at the assigned judge's courtroom early to allow time for courthouse security measures. Be prepared to spend most of the morning or afternoon in court. Your case may be heard immediately or you may have to wait for other cases to be heard.  Bring with you any documents, records, photographs, audio and/or visual recordings related to your case. Witnesses are generally required if you wish to present evidence to the court.  Subpoenas are available if you need a court order to compel a witness to appear in court.  Without evidence you can loose even if you’re right.

Let the judge’s staff know before the hearing if 1) you need an adjournment because of witness problems or you wish to have an attorney with you or 2) you need an interpreter because you are unable to communicate in English or 3) you are hearing impaired.

Only one person at a time may speak during a court proceeding. This ensures greater accuracy in making a record by our audio recording equipment.  When speaking, talk to the witness or the court, not the opposing party, either from your table or the podium. Stepping away from the microphones reduces the accuracy of the record.  Be respectful of the judge, court staff, attorneys, witnesses and other parties.

Do not interrupt when someone else is talking. Do not talk and stop talking when the judge is talking. The judge will try to give both sides a full opportunity to be heard, but you need to wait your turn.  The judge does get to interrupt you if what you are saying is irrelevant or not material to the issues before the court. 

Please remember that hearsay is generally inadmissible.  Unless there is an exception under the Rules of Evidence, you can tell the judge anything you actually heard the other party say that is relevant to the case, but you can’t tell the judge what somebody else has said even if that other person is a doctor, lawyer, police officer, family member or friend.  You need to have that person appear in court as a witness.  Likewise, police reports, lab reports, medical reports, affidavits, letters are hearsay and not admissible unless there is an exception to the hearsay rule. 

The right to proceed in propria persona.

In Kreis  v Bedford, Unpublished Opinion in the Court of Appeals, (issued 11/10/2011, No. 300183) plaintiff argued that because she acted in propria persona, she should not have been expected to strictly comply with the provisions of the court rules concerning motion practice and motions for summary disposition. She also suggests that the circuit court should have informed her how to conduct discovery and how to properly oppose plaintiff's motion for summary disposition. She claims that she had an absolute right to proceed in propria persona, and that by holding her to the same exacting standards as a practicing lawyer, the circuit court effectively interfered with her right to procedural due process. The Court of Appeals did not agree.

Without question, litigants have a constitutionally guaranteed right to proceed in propria persona in the courts of this state. Const 1963, art 1, § 13; see also Shenkman v Bragman, 261 Mich App 412, 416 (2004).  However, it is well settled that individuals who represent themselves in Michigan's courts are held to the same standards as members of the state bar. Baird v Baird, 368 Mich 536, 539 (1962); Totman v Royal Oak School Dist, 135 Mich App 121, 126 (1984). The Court will not overlook a party's tactical errors or consider documentary evidence that was not submitted to the trial court merely because a party acted in propria persona. Amorello v Monsanto Corp, 186 Mich App 324 (1990); Bachor v Detroit, 49 Mich App 507, 512 (1973). When a litigant elects to proceed without counsel, the litigant is "bound by the burdens that accompany such election." Hoven v Hoven, 9 Mich App 168, 174 (1967).

Costs in a criminal case.

            In People v Dilworth, 291 Mich App 399 (2011) the Court of Appeals remanded to the trial court to set forth the basis for the costs assessed against the defendant.  A trial court must have statutory authority to order a criminal defendant to pay costs. People v Lloyd, 284 Mich App 703, 707 (2009).  In Dilworth neither of the statutes that defendant was convicted of violating provided any such authority, but the Legislature has the “authority to enact a general cost provision . . . .” Id. at 709 n 3.

There are several statutes under which trial courts may impose costs. MCL 771.3 authorizes a trial court to order a defendant to pay costs as a condition of probation; specifically, it authorizes the assessment of costs “incurred in prosecuting the defendant or providing legal assistance to the defendant and supervision of the probationer.” (Emphasis added.) See People v Brown, 279 Mich App 116, 138-139 (2008). Under MCL 769.1k(1)(b)(iii), a trial court may order the defendant to pay “[t]he expenses of providing legal assistance to the defendant.” And under MCL 769.34(6), a trial court may order costs as part of the sentence.

Because the Legislature has set forth specific circumstances under which trial courts may impose costs, a trial court generally has the discretionary authority to order a criminal defendant to pay the costs of prosecution.  When authorized, the costs of prosecution imposed “must bear some reasonable relation to the expenses actually incurred in the prosecution.” People v Wallace, 245 Mich 310, 314 (1929). However, those costs may not include “expenditures in connection with the maintenance and functioning of governmental agencies that must be borne by the public irrespective of specific violations of the law.” People v Teasdale, 335 Mich 1, 6 (1952).

In Dilworth the prosecutor offered to provide the trial court with details of the expenses that were claimed to justify the $1,235 in costs, but that information was never placed into the record. From the transcript of the proceedings that defendant may not have been afforded the opportunity to challenge those costs, and the Court of Appeals could not tell whether the costs were imposed on the basis of appropriate charges, such as expert witness fees, Brown, 279 Mich App at 139, or impermissible charges, such as the assistant prosecutor’s wages, which were set by a board of supervisors pursuant to a statute and independent of any particular defendant’s case, see MCL 49.34.

The Court of Appeals therefore vacated the trial court’s order imposing the costs of prosecution, and remanded the matter to the trial court to make a record of what the costs were, determine whether ordering defendant to pay them was permissible, and, if appropriate, impose or deny them.

Ineffective assistance of defendant’s trial counsel.

In People v Armstrong, __ Mich __ (#142762, 10/26/2011) the ineffective assistance of defendant’s trial counsel in failing to seek the introduction into evidence of cell phone records that would have undermined the complainant’s credibility prejudiced defendant, thereby entitling him to a new trial.

A defendant must meet two requirements to warrant a new trial because of the ineffective assistance of trial counsel. First, the defendant must show that counsel’s performance fell below an objective standard of reasonableness. In doing so, the defendant must overcome the strong presumption that counsel’s assistance constituted sound trial strategy. Second, the defendant must show that, but for counsel’s deficient performance, a different result would have been reasonably probable.

It did make a difference whether the jury saw the cell phone records since it heard their contents read into evidence by the complainant. The complainant acknowledged only a fraction of the numerous communications revealed in the cell phone records. Further, according to the trial court’s instruction, the jury was to disregard the cell phone records because they had not been properly admitted. We presume that a jury follows its instructions. Moreover, even assuming that the jury considered the portion of the cell phone records read into evidence, the jury also heard from the prosecution that defendant or defense counsel might have fabricated the records. We disagree with the Court of Appeals that instructing the jury that the attorneys’ statements and arguments are not evidence cured such a significant and damning accusation.  The failure of defendant’s trial counsel to pursue the introduction of the cell phone records into evidence not only fell below an objective standard of reasonableness, but also prejudiced defendant.

A certificate of mailing to prove notice may be testimonial.

In People v Nunley, __ Mich App __ (#302181, 10/13/2011) defendant was charged with DWLS and challenged the certificate of mailing by the Secretary of State as being testimonial.  The Court of Appeals held that even if the certificate of mailing was prepared in the regular course of the Secretary of State’s business, the certificate of mailing is testimonial because it will be used for the purpose of proving or establishing some fact at trial.

The Confrontation Clause of the United States Constitution provides, “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with all witnesses against him . . . .” US Const, Am VI. The Michigan Constitution provides the same guarantee for criminal defendants. Const 1963, art 1, § 20; Dinardo, ___ Mich App at ___. Testimonial statements of witnesses absent from trial are admissible only when the original declarant is unavailable and the defendant has had a prior opportunity to cross-examine that declarant. Michigan v Bryant, ___ US ___ (2011); Crawford v Washington, 541 US 36, 54, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004). Ordinarily, whether a statement is testimonial depends on whether it constitutes a “‘declaration or affirmation made for the purpose of proving some fact.’” Crawford, 541 US at 51 (citation omitted). This Court has explained that “[s]tatements are testimonial where the ‘primary purpose’ of the statements or the questioning that elicits them ‘is to establish or prove past events potentially relevant to later criminal prosecution.’” Dinardo, ___ Mich App at ___, quoting People v Lewis (On Remand), 287 Mich App 356 (2010), quoting Davis v Washington, 547 US 813, 822 (2006). If a statement is nontestimonial, then “the Confrontation Clause does not restrict state law from determining admissibility.” People v Garland, 286 Mich App 1 (2009), citing Crawford, 541 US at 68.

In Melendez-Diaz v Massachusetts, ___ US ___; 129 S Ct 2527 (2009) the United States Supreme Court held that the “certificates of analysis” including forensic analysis results for seized controlled substances constituted testimonial statements barred by the Confrontation Clause. Melendez-Diaz, 129 S Ct at 2531-2532. The Melendez-Diaz Court observed that the “certificates” were made under circumstances which would lead an objective person to reasonably believe that the statement would be available for use at trial and that under Massachusetts law their sole purpose was to provide prima facie evidence regarding the analyzed substance. Id., quoting Crawford, 541 US at 52 and Mass Gen Laws, ch 111, § 13. The Court concluded that the analysts who created the “certificates” were witnesses for purposes of the Confrontation Clause and defendants had the right to be “confronted” by them at trial, absent a showing that the analyst was unavailable to testify and defendant had a prior opportunity for cross examination.

In order to convict defendant of DWLS, the prosecutor must prove that defendant’s license had been suspended and that he has been notified of the suspension as provided in MCL 257.212. Like the lab analyst report at issue in Melendez-Diaz, the certificate of mailing here is offered to prove a fact in question. Melendez-Diaz, 129 S Ct at 2532, quoting Crawford, 541 US at 51. Indeed, the certificate of mailing here is offered to prove an element of the offense—proof of the notification required by the plain language of MCL 257.904(1).  Furthermore, in light of the fact that notification is an element of the offense, certainly the certificate of mailing was “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” Id., quoting Crawford, 541 US at 52.  The Secretary of State representative who created the “certificate” was a witness for purposes of the Confrontation Clause and defendant had the right to be “confronted” by him at trial, absent a showing that he was unavailable to testify and defendant had a prior opportunity for cross examination.

Ineffective assistance of counsel.

In People v Gioglio, __ Mich __ (#143136, 9/21/2011) the Michigan Supreme Court reiterated that when claims of ineffective assistance present a mixed issue of fact and constitutional law, the trial court must first determine the facts and then decide whether those facts demonstrate a violation of the defendant’s constitutional right to the assistance of counsel. People v Lewis (On Remand), 287 Mich App 356 (2010). “When a defendant asserts that his assigned lawyer is not adequate or diligent . . . the judge should hear his claim and, if there is a factual dispute, take testimony and state his findings and conclusion.” People v Ginther, 390 Mich 436 (1973).  A trial court’s factual findings are reviewed for clear error and its ultimate determination de novo. People v Petri, 279 Mich App 407 (2008).).

If counsel is a reasonably effective advocate, he meets constitutional standards irrespective of his client's evaluation of his performance. Id. at 657 n 21, citing Jones v Barnes, 463 US 745 (1983) and Morris v Slappy, 461 US 1 (1983).  In People v Frazier, 478 Mich 231 (2007), the Michigan Supreme Court clarified how to apply the Cronic/Strickland standards: “[t]he Cronic test applies when the attorney's failure is complete, while the Strickland test applies when counsel failed at specific points of the proceeding.”  In Frazier, the Supreme Court refused to apply Cronic and presume prejudice when the defense counsel advised defendant to waive his right to counsel at the police interrogation and failed to attend the interrogation with the defendant. Id. at 244-245.

In this case, because counsel’s failure to test the prosecution’s case was not complete, the analysis is under the Strickland ineffective assistance of counsel test. The right to effective counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20; Strickland, 466 US 686. To establish ineffective assistance of counsel, defendant must show that: (1) counsel’s performance was below an objective standard of reasonableness under prevailing professional norms, (2) there is a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different, and (3) the resultant proceedings were fundamentally unfair or unreliable. People v Toma, 462 Mich 281, 302 (2000); People v Pickens, 446 Mich 298 (1994). Unlike Cronic, the Strickland test addresses specific errors made by counsel, requiring defendant to show that not only was counsel’s performance deficient but also that the defective performance was prejudicial. Strickland, 466 US at 6; Mitchell, 454 Mich at 157. 

Effective assistance of counsel is presumed and defendant bears a heavy burden of proving otherwise. Rockey, 237 Mich App at 76. Defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy. People v Riley (After Remand), 468 Mich 135, 140 (2003). Decisions as to when to make an opening statement, what evidence to present, whether to call or question witnesses, and on what to focus in closing argument are presumed to be matters of trial strategy, People v Horn, 279 Mich App 31 (2008); People v Dixon, 263 Mich App 393 (2004), and declining to raise objections to procedures, evidence, or argument can also be sound trial strategy, People v Unger, 278 Mich App 210 (2008). “This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.” People v Garza, 246 Mich App 251 (2001).

Requests for Attorney fees in domestic relations cases, and maybe otherwise.

In Bowers v Bowers, Unpub per curiam opinion, (9/20/2011, #298268) the Court of Appeals addressed requests for attorney fees in a domestic relations matter.  I am considering requiring a separate (evidentiary) hearing to address any request for attorney fees.

In domestic relations cases, attorney fees are authorized by both statute, MCL 552.13, and court rule, MCR 3.206(C).” Reed v Reed, 265 Mich App 131, (2005). MCR 3.206(C) provides: (1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding. (2) A party who requests attorney fees and expenses must allege facts sufficient to show that (a) the party is unable to bear the expense of the action, and that the other party is able to pay, or (b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.

MCL 552.13(1), authorizes as follows the imposition of fees and costs in divorce actions: In every action brought, either for a divorce or for a separation, the court may require either party to pay alimony for the suitable maintenance of the adverse party, to pay such sums as shall be deemed proper and necessary to conserve any real or personal property owned by the parties or either of them, and to pay any sums necessary to enable the adverse party to carry on or defend the action, during its pendency. It may award costs against either party and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.  In addition, this Court has held that attorney fees are “authorized when the party requesting payment of the fees has been forced to incur them as a result of the other party’s unreasonable conduct in the course of litigation.” Stackhouse v Stackhouse, 193 Mich App 437, 445 (1992); Milligan v Milligan, 197 Mich App 665, 671 (1992). “[T]he attorney fees awarded must have been incurred because of misconduct.” Reed, 265 Mich App at 165.

When requested attorney fees are contested, it is incumbent on the trial court to conduct a hearing to determine what services were actually rendered, and the reasonableness of those services. Miller v Meijer, Inc, 219 Mich App 476, 479-480 (1996); Petterman v Haverhill Farms, Inc,125 Mich App 30, 33 (1983).

The Supreme Court in Smith v Khouri, 481 Mich 519 (2008) set forth a process for how a court should determine the reasonableness of requested attorney fees. The Smith Court first noted that the party requesting fees bears “the burden of proving the reasonableness of the requested fees.” Smith, 481 Mich at 528–529. The trial court should “consider the totality of special circumstances,” applying as appropriate the six factors listed in Wood v Detroit Auto Inter–Ins Exch, 413 Mich 573, 588 (1982), and the eight factors listed in Michigan Rules of Professional Conduct (MRPC) Rule 1.5(a). The factors overlap and include “the professional standing and experience of the attorney,” “the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly,” and “the expenses incurred.” Id. at 529–530, quoting Wood, 413 Mich at 588, MRPC 1.5(a).  The Smith Court held that, in determining whether requested attorney fees are reasonable, the trial court should begin its analysis by determining the fee customarily charged in the locality for similar legal services.... In determining this number, the court should use reliable surveys or other credible evidence of the legal market. This number should be multiplied by the reasonable number of hours expended in the case.... The number produced by this calculation should serve as the starting point for calculating a reasonable attorney fee.... [Id. at 530–531.]  The Court “emphasize[d]” that “‘the burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.’” Id. at 531, quoting Blum v Stenson, 465 US 886, 895 n 11 (1984). This “satisfactory evidence” of customary fees “can be established by testimony or empirical data found in surveys and other reliable reports.” Id. at 531–532. Mere “anecdotal statements” are not sufficient. Id. at 532.

To determine “the reasonable number of hours expended in the case,” the attorney requesting fees “must submit detailed billing records, which the court must examine and opposing parties may contest for reasonableness.” Id. The burden of establishing the reasonableness of the hours reported lies with the attorney requesting fees. If the other party raises a factual dispute regarding the reasonableness of the hourly rates or the hours billed, “the party opposing the fee request is entitled to an evidentiary hearing to challenge” the evidence submitted by the attorney requesting fees and to present contrary evidence. Id. Only after the trial court has determined a reasonable fee by multiplying the reasonable hourly rate by a reasonable number of hours billed, should the court “consider the other factors and determine whether they support an increase or decrease in the base number.” Id. at 533.