Grand Traverse-Leelanau-Antrim Bar Association

August 2017 Newsletter

Feature Article:  Interview with Judge Elsenheimer, 13th Circuit Court

by Agnes Jury, GTLA President

GTLA President Agnes Jury interviewed Judge Elsenheimer to explore his practice preferences and more. Get to know Judge Elsenheimer.

Q: How do you prepare for a case over which you preside? 

A: I follow the advice I received from Judge Power: Read every pleading at least three times. Once when it comes in, again a week or so before the matter, and at least once prior to hearing. If a matter requires research from our end I'll often enlist Brooke Bearup, our legal assistant.

Q: What are your top pet peeves in the courtroom?  

A: At this point, about six months in, they're mostly my own.  Missing something on a plea, for example. As to attorneys, my only frustration so far as been parties talking over each other or witnesses. It makes transcripts very difficult. But I remember being focused/excited and doing the same thing when I tried cases, too. So I'm patient. [As to motions and briefs:] Unless there is a sanctions issue of some kind, I don't much care for attorneys sniping at each other. But again, it's something that I was probably guilty of as well.

Q: What practices do you enjoy or like to see?   

A: I appreciate a sincere, professional effort to resolve procedural issues in advance of hearing. Discovery motions, for example, should be rarer than they are. Professionals should be able to resolve most process issues. There are certainly times the Court needs to get involved.

Q: What differentiates a good lawyer from a great one?  

A: At trial, and certainly otherwise, it's preparation. The great lawyers know their cases perfectly, have fully thought through and often already argued evidentiary or procedural issues, and perhaps most importantly are able to convey their critical theories in a clear way. Part of the genius of great lawyers is knowing which issues to focus on, and which to forgo. We are blessed with some truly great lawyers in our Circuit.

Q: What courtroom practices are important to you?

It's important to me that litigants remain courteous, particularly to non-lawyers. Court can be very intimidating, and I want people to feel welcome regardless of how their matter is ultimately resolved. I do think that wearing appropriate attire and standing while addressing the court shows respect for the institution.

Q: Do you find it hard to support a legal position that conflicts with your personal beliefs?

A: I don't. I know my role, and it isn't to make law anymore! My internal policy conflicts aren't relevant to the job.

Q: What, if anything, would you like to change about the judicial system as you have experienced it so far?

A: Most of the criminal activity I see is tied to drug use, and I'm not convinced we've got the right tools to deal with the problem. Addiction and rehabilitation is an area that all of government is going to have to be concerned about going forward. Change is needed.

Q: Were/Are there any other judges you admire or consider mentors and why?

A: After six months on the bench, I've come to truly admire (and wish I had a little more of) Phil Rodgers' clarity and precision of thought. I didn't always appreciate it when I was a litigant! Judge Power is a great mentor - he's truly seen it all - and sees the subtleties of the operation and impact of the court in a way that is very educational to me. I tried many cases with Norm Hayes when he was a district judge, who learned from the late Bill Porter of the 46th Circuit. I like that some of the judicial methods used by giants like Porter and Rodgers have made their way into how I approach the job.

Q: What do you think is the most crucial skill for a judge to have?

A: Independence.

Q: What do you find most difficult about being a judge?

A: There are a surprising number of cases where the law and the facts - even the equities - are fairly balanced out between parties. Those cases can be tough calls, and they're difficult as a result.

Q: What do you do when you are faced with deciding a case that you think is a “tough call”?

A: Read, re-read, and hopefully live with the decision a bit before I make it. I like to think about important sentencings for at least a week, for example. I'll often chat with Judge Power, although he and I are both try to avoid saying, "here's what I would do." I'll look to history in the Circuit, too. I think it's important to maintain consistency and predictability. Part of a lawyer's job is to advise a client what a reviewing judge will or won't do, so it's my job to try to be somewhat predictable.

Q: What are your top three goals for your career as a judge?

A: I've got two potential elections in the next four years, so there's goal #1 and #2! As for #3, I'd like to help keep the quality and efficiency of the court at the level it has enjoyed for the last decade.

Q: If you could ask the future you at retirement one question, what would you ask?

A: Why didn't you start saving in your 20's? Actually, my go-to question is from my time as a boy scout: Did you leave the campground better than you found it? That'll be a tall order here.

Q: What do you do for pleasure?

A: I play and collect old Gibson guitars, and work on my 4th generation family farm. I've got an old house, a small unruly vineyard and 20 acres of woods to keep me occupied.

Q: What do you absolutely hate doing?

A: I hate repairing things that I've already repaired and my children have broken.

Q: If you were not in the legal profession, what would you love to do for a living?

A: If I could make a living as a musician, I might. But I'd probably be a developer. I grew to really enjoy that world when I ran MSHDA.

Q: If you could have dinner with any living person, who would it be and why?

A: Probably a big-picture economist like John Mauldin.

Q: If you could bring one person back from the dead, who would it be and why?

A: Easy - my father, Art Elsenheimer. He died young, and treasured being from this area. I still see a lot of him in this community, and it's always an honor when someone comes up to me to tell me a story about my father. And there are plenty of stories - believe me.

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