When next appearing before the Hon. Martin J. Sheehan of the Kenton Circuit Court First Division on a motion for summary judgment, do not be alarmed if he writes “BS” on your motion. He is not commenting on the substance of your brief or argument, but merely starting the Blue Sheet process he uses to track pending summary judgment motions. This commitment to efficiency and timeliness defines what Judge Sheehan expects from himself and the Bar. Many have heard his Monday morning motion docket reminders to get orders issued at the docket call to him within the week.
Judge Sheehan recently sat down to discuss his views on the use and abuse of the Civil Rules, efficiency, civility, and his thoughts on being a Circuit Court judge. He presented in pressed button down shirt and jeans with an array of pending motions for summary judgment neatly lined up on his conference room table—each with a Blue Sheet to track its status. His attire, like his approach to being a judge, shows him to be buttoned-down efficient with a casual flare.
Not only does Judge Sheehan carefully monitor pending motions for summary judgment, but he also keeps statistics on how many new civil filings he has each year (1,300), how many new criminal matters (300), the percentage of civil matters set for trial that are tried (22.2%), and how many criminal trials set that are tried (11.8%). The Judge calculates he can try 39 cases per year. That means of the 52 weeks, 12 are reserved for motion docket week and attendant responsibilities and one for a personal vacation, while the rest are held for trials.
Judge Sheehan, however, is not just about efficiency. He can also express his casual flare by mixing in his love of history and culture for a little sarcastic twist, to illustrate a key point in an opinion or to politely shed light on a problem. His opinions often contain quotes from the likes of Thomas More and William Shakespeare to Bill Clinton, Delbert McClinton, Tom Waites, Pink Floyd and even Captain Jake Cutter (as played by John Wayne in the Commancheros)—“he’s just spittin out words to see where they splatter.”
Judge Sheehan came to the Circuit Court bench after nine years of private practice and fourteen years on the Kenton District Court bench. He was admittedly burned out after his time with the District Court and ready for a change. He describes his new professional life as “completely different”—in a positive way. He says he has learned more law in the past three years than his entire career before. He finds his new role professionally rewarding and has gained a new sense of satisfaction in his work. Obviously, he is having fun.
Just as Judge Sheehan peppers his opinions with interesting quotations, he also has an interesting approach to using the Civil Rules when trying a case in his Court. While he pays careful attention to motions for summary judgment, he finds that many practitioners overuse the rule. He believes that because the standard for summary judgment is so high most motions have no chance of success. Nevertheless, someone files for summary judgment in nearly every case. While he understands that CR 56 is often used to make an opponent better explain her position, he believes a more strategic use of CR 56 would be preferable. He would like to see a more targeted motion for partial summary judgment used to weed out baseless claims and defenses. He pays careful attention to American Ins. v. Horton, 401 SW2d 758, which holds that where the non-moving party cannot improve his position and will ultimately and inevitably be subject to directed verdict, then summary judgment is appropriate. He said summary judgment is most appropriate where necessary expert testimony or the like is absent and will not be forthcoming. Judge Sheehan prefers motions for summary judgment after both parties have had ample time to complete discovery. He will generally grant extensions to a briefing schedule to allow additional time for discovery provided both litigants have shown reasonable diligence.
Judge Sheehan also shared his opinions on pleadings and related rules. First, he asks only that counsel comply with CR 8.01 and produce a complaint that provides a short and plain statement of the claim, except where CR 9.02 (fraud or mistake) requires greater specificity. He believes many lawyers misinterpret CR 12.02 and file motions to dismiss based upon poorly pled complaints. He does not grant motions to dismiss in these circumstances, relying on the general principles governing notice pleading. Where a complaint is poorly drafted, Judge Sheehan welcomes CR 12.05 motions for a more definite statement. He finds motions to dismiss appropriate only when there is a legal issue, such as the statute of limitations, barring a complaint.
Another pleading practice Judge Sheehan takes issue with is the use of multiple causes of action that each address the same factual issues. He acknowledges that in some circumstances different causes of action afford different relief. But, he asks, is it really necessary to plead both breach of contract and breach of the duty of good faith and fair dealing? He finds too many counts in the jury instructions confuses the jury and make otherwise simple matters overly complicated. Here, his preference for efficiency extends to the practitioner who drafts the complaint.
Current events gave rise to another one of Judge Sheehan’s comments on the Civil Rules. The recent flood of foreclosures has brought CR 17.01 Real Party In Interest into play. Judge Sheehan holds that failure to bring an action on behalf of the real party in interest cannot be cured by amendment—the plaintiff must dismiss and start from the beginning. For foreclosure actions, the Judge requires that, to be a real party in interest, the party foreclosing must hold the note and mortgage. Similar problems arise with credit card debts where the plaintiff may not have adequate proof that it is the assignee of the defendant’s debt obligations.
Another problem area the Judge has seen involves Special Process Servers under CR 4.01(1)(b) and KRS 454.145. Before making a request for a special process server, one must demonstrate need (proof that other available means of service have failed). As well, a special process server must be an individual who resides in the county where process is to be served. A corporation does not qualify. Elected constables are lawfully empowered to serve process and may do so without motion.
Where service has failed entirely, Judge Sheehan has seen practitioners resort to the use of Warning Order attorneys. Confusion remains about when the use of a Warning Order attorney is appropriate. They can only provide constructive service where such service creates in rem jurisdiction. Warning Order attorneys cannot give a court personal jurisdiction over an absent defendant.
Although the Judge considers himself familiar with the Civil Rules, he would like to see attorneys actually cite the rule upon which they rely, especially when making post trial motions (CR 50.02 and 59) or seeking a modification of a final judgment (CR 52.02 and 60). Generally these post trial motions are fairly important, so it makes sense that counsel would take time to cite the specific rule upon which she relies for relief.
One of his pet peeves is the over and misuse of motions to strike. Unless a motion to strike is directed at a pleading of substance, such as a motion to strike an answer, or at a critical denial of a request for admission, the motion generally does not accomplish much. The Judge finds little value in moving to strike an impertinent comment.
One final area the Judge would like to see counsel take more seriously is setting a matter for trial. He is currently setting trials about four months out, but with his case load and limited time for trials, he would like counsel to have made a serious effort to settle before burdening his calendar with a trial date. He finds too often that parties do not get serious about settlement without a trial looming. Now, he will not set a case for trial until the parties have attempted mediation. As well, he will not set cases, unless highly complex, more than a few months out. One must be ready for trial with mediation complete before seeking a trial date in his Court. This approach is entirely consistent with maintaining order and efficiency.
As our interview drew to an end, Judge Sheehan focused on an issue he finds key to efficient justice and vital to maintaining our system of justice as a whole. As those who have attended his monthly motion docket know, he wants us all to carefully consider our duty to be civil to each other. He argues that when we make a point of getting along, then his motion docket has fewer cases called, he has to read fewer motions, issue fewer rulings and knows that many of our clients will see smaller legal bills. This will allow him more time to focus on substance, issue well-reasoned decisions, and efficiently administer his docket. Win-win, right?
Judge Sheehan is a fan of the Standards of Civility issued by the New York State Unified Court System. (He has a copy on his desk). These standards for attorneys stress things like: courtesy, cooperation, respect, promptness, fairness, and keeping one’s promises. He binds himself to these rules, which also address a judges’ duties to lawyers, parties and witnesses. These rules ask a judge to show patience, courtesy, respect, punctuality, efficiency, promptness, and civility.
Of course, his focus on civility is not purely utilitarian. He knows it also enhances the quality of counsels’ lives. Who wants to try to be a Rambo litigator or be the object of one? He referenced one case where the plaintiff had filed an eighty paragraph complaint. While answering the complaint, the defendant made a typo and accidentally failed to deny one of the allegations. This precipitated a motion for summary judgment and various motions in response including one for leave to amend the answer. The end result was thousands of dollars of legal fees and hours of the Court’s time wasted when all that was needed was a phone call between counsel and an agreed order to correct the error. Judge Sheehan quickly denied the motion for summary judgment and allowed defense counsel to fix the typo. But, he could not undo the wasted hours of billing and court time needed to address all of the unnecessary arguing.
Judge Sheehan became more vocal about civility once he became a Circuit Court judge. He says there is something about wearing the robe and wielding the gavel that compels him to take the bully-pulpit to preach the value of civility, especially with many practitioners and most area law firms before him every month. As local practitioners know, Judge Sheehan has not shied from expressing his views on practice and procedure, efficiency, and civility. He obviously revels the roles of judge, teacher and coach. He just completed his third year as a Circuit Court judge. Over time, he will surely have a lasting and profound effect on the practice of law in this region. At this juncture, Judge Sheehan’s career is best described with one of his favorite quotes from Civil War Admiral David Farrugut, who famously said, “damn the torpedoes, full speed ahead.”
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