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Hearing Practice and ProcedureBefore the Clerk

Meredith S. SmithContested Hearings: Essentials for Clerks

October 29-30, 2013

Do you wear a robe during hearings?

0%

20%

40%

60%

80%

100%

120%

Yes No

2

Do you hold your hearings in a courtroom?

4%

60%

36%Always

Sometimes, if contested

Never

The Clerk as a Judge: How did that happen?

• North Carolina Constitution of 1868 gives clerks judicial authority in three areas:

– Estates and guardianship

– Special proceedings

– Ancillary civil jurisdiction

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Constitutional Office, Jurisdiction by Statute

Clerk Superior Court Judge

Limited General

Jurisdiction Jurisdiction

NC Constitution, Article IV, Section 12(3)

Have you ever had a party request that the elected clerk hear the matter instead of the assistant clerk?

Yes36%

No64%

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Authority of the Assistant Clerk

An assistant clerk is authorized to perform all the duties and functions of the office of clerk of superior court, and any act of an assistant clerk is entitled to the same faith and credit as that of the clerk.

NCGS 7A-102(b)

It’s Five O'clock Somewhere…• Interim guardianship hearing• Petitioner is the respondent’s son• Other interested parties are the respondent’s three

other daughters and the nursing facility where the mother is a patient

• Scheduled for 3 pm on a Thursday• The petitioner is the only party represented by counsel• At 4:15 pm, the petitioner’s case is still going

on…..clerk tells the petitioner to wrap up their case and the respondent will have until 5:15 to present their side– Did the clerk’s use of time limits create a strong case for

appeal in favor of the respondent?1. Yes2. No

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Do you ever place time limits on a party during a hearing?

Yes80%

NO20%

The Clerk’s Balancing Act

Court time used

economically and expeditiously

vs.

Respecting due process and reaching

a just result

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The Evidence Rules

• Rule 102– The rules of evidence shall be construed to

secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

Relevant Evidence: Another Balancing Test

• Rule 401 – Evidence is relevant if it has any tendency to make a

fact that is of consequence more or less probable than without the evidence

• Rule 402– All relevant evidence is admissible UNLESS

specifically excluded• Rule 403

– Although relevant, evidence may be excluded if its probative value is substantially outweighed …. by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

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Control Over Witnesses

• Rule 611– The court shall exercise reasonable control

over the mode and order of interrogating witnesses and presenting evidence so as to… (2) avoid needless consumption of time….

Do you require the parties in a hearing to give an opening and a

closing statement?

0%

10%

20%

30%

40%

50%

60%

Yes to both Yes, only anopening

Yes, only aclosing

No, I do notrequire either

20%

4% 8%

58%

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What’s the difference?

• Opening – Outlining of the facts, setting the scene; non-

argumentative– Opening is always a privilege, not a right– Judge can limit time

• Closing– Argue the merits based on facts + law– Closing is a privilege, not a right in bench trials

– See Roberson v. Roberson, 40 NC. App. 193 (1979).

– Judge can limit time except in jury trial, not less than two hours

Other Ways of Time Management

Announce Appearances

Define the Issue

0% 50% 100%

Yes

No

76%

24%

0% 50% 100%

Yes

No

75%

25%

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It’s Five O'clock Somewhere…

• Interim guardianship hearing• Petitioner is the respondent’s son• Other interested parties are the respondent’s three

other daughters and the nursing facility where the mother is a patient

• Scheduled for 3 pm on a Thursday• The petitioner is the only party represented by

counsel• At 4:15 pm, the petitioner’s case is still going

on…..clerk tells the petitioner to wrap up their case and the respondent will have until 5:00 to present their side

Setting Limits: Remember

1. Balance

2. Best method

3. Be flexible– Abuse of discretion

standard of review

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What does it mean to sit behind the bench?

• According to Socrates:– To hear courteously

– To act wisely

– To consider somberly

– To decide impartially

• Also, from Socrates:– The only thing I know, is that I know nothing.

Have you ever had to disqualify yourself from a case?

Yes48%

No52%

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Shall Disqualify: The Laundry List• The Clerk shall not exercise judicial

powers in any estate, proceeding or civil action if:

1. Clerk has an interest by distribution, will or as a creditor or otherwise

2. Clerk is related to someone with an interest and someone objects at the first hearing

3. Clerk or clerk’s spouse is a witness4. Clerk or clerk’s spouse is executor or

trustee and clerk does not renounce** 3 and 4 cease to disqualify the clerk once the will is admitted to probate**

- N.C.G.S. 7A-104(a)

What if…• Clerk named as executor of a will• Clerk transfers the matter to

superior court and will is admitted to probate in accordance with statute

• Later the clerk as the executor files the final accounting– Can the clerk audit the accounting

under 7A-104?• 1. Yes, the disqualification ceased to exist

once the will was admitted to probate• 2. No

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May Disqualify: The Open Ended Question

• Clerk may disqualify himself where circumstances would justify disqualification or recusement by a judge

– N.C.G.S. 7A-104(a1)

• Therefore, look to Canon 3 of the Code of Judicial Conduct – A judge should perform the duties of the

judge’s office impartially and diligently.–

Canon 3: Impartiality• On own initiative or party’s motion, judge

should disqualify where impartiality may reasonably be questioned, including where:1. Personal bias or prejudice concerning a party

2. Personal knowledge of disputed facts

3. While in law practice, the judge or her partners served as a lawyer in the matter or is a witness

4. Judge, spouse, or minor child has a $$ interest in the matter or another interest that could be substantially affected

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Canon 3: Impartiality, Continued….

5. Judge, judge’s spouse, or person within third degree or third degree’s spouse:

1. Is a party to the proceeding or an officer director or trustee of a party

2. Is acting as a lawyer in the proceeding

3. Judge knows they may have an interest substantially affected by the outcome

4. Is likely to be a material witness

Remember….

• The parties can always waive the disqualification, provided that:– Nature of the interest is

fully disclosed to the parties

– The waiver is in writing

– Filed with the court- N.C.G.S. 7A-104(a2) & Canon 3(D)

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Would you disqualify them?

• The campaign manager of the opponent in the race against the elected clerk is a party to an estate proceeding before the elected clerk.– 1. Yes– 2. No

• The clerk’s son is a legal intern with the petitioner’s attorney in a foreclosure proceeding.– 1. Yes– 2. No

Would you disqualify them?

• The clerk jointly owns a vacation house with one party’s attorney who regularly appears before the clerk.– 1. Yes– 2. No

• The clerk presided over an estate proceeding to remove the executor and the same person is now the respondent in an incompetency matter.– 1. Yes– 2. No

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Would you disqualify them?

• The clerk’s house was foreclosed upon by the same lender currently filing for foreclosure in a proceeding before the same clerk.– 1. Yes– 2. No

• Prior to being elected clerk, the clerk, who is also an attorney, was fired by a client who is now a party to an estate proceeding before the clerk.– 1. Yes– 2. No

So the clerk’s out, what’s next….

• Clerk may not assign it to an assistant– If an assistant is disqualified, the clerk or another

assistant may hear it

• Any interested party may apply to superior court to:– Remove the proceeding to a clerk in an adjoining

county, or– Have the superior court judge hearing the

proceeding.

- N.C.G.S. 7A-104(b)

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Do you ever Google or conduct independent research on parties that appear before you in a proceeding?

0% 20% 40% 60% 80% 100%

Yes

No

12%

88%

Influencing Impartiality: Ex Parte Communication

• A communication by or for one party with the judicial decision-maker outside of the record and where the other party does not have notice or the opportunity to be heard

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Would you discuss a pending matter with someone who approached you outside the hearing?

0%

20%

40%

60%

80%

100%

120%

Yes No

Influencing Impartiality: Ex Parte Communication

• For Clerk’s– Chapter 11 of the Clerk’s Manual states that

neither parties nor their attorneys may communicate with the judge ex parte

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Influencing Impartiality: Ex Parte Communication

• For Lawyers:– Rule 3.5 of the Revised Rules of Professional

Conduct restricts ex parte communications

– Comment 8 to Rule 3.5: narrows the prohibition to communications relative to a pending matter in circumstances which might have the effect or give the appearance of granting undue advantage to one party

Influencing Impartiality: Ex Parte Communication

• For judges:– Canon 3(A)(4) of the Code of Judicial

Conduct states that except as authorized by law, a judge should not knowingly initiate or consider ex parte or other communications concerning a pending proceeding

• Judge may obtain advice of a disinterested expert

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Would you discuss an issue with an outside party that is not currently before you, but could at some point come before you?

12%

88%

0%10%20%30%40%50%60%70%80%90%

100%

Yes No

Whoops, its too late…

• Canon 3 – Disqualification analysis – Analyze whether your impartiality could be

reasonably questioned given the ex parte communication

– If so, inform the parties of the communication• If they want you to hear the case, obtain a waiver

in writing describing the communication and that the parties were aware of it

• If they object, they may move to remove the matter or apply for a superior court judge to hear the case

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Are you friends with any attorneys or parties that appear before you on Facebook, Linkedin or other social networking sites?

Yes12%

No88%

Have you ever taken a decision under advisement?

80%

20%

0% 20% 40% 60% 80% 100%

Yes

No

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If a reporter asked to record a hearing so they could ensure their story was accurate, would you let them use a recorder?

42%58% Yes

No

Do you record your hearings?

20%

52%

28%Never

Sometimes

Always

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Have you ever had an order appealed?

71%

29%

Yes

No

Have you ever held anyone in contempt? If so, why type?

Yes28%

No72%

0%

86%

14%Criminal

Civil

Both