The Hon. Michael O. Bohren

Preparation is key to trial presentations

By Jane Pribek

The best attorneys who appear before Judge Michael O. Bohren might not necessarily be the most articulate persons in the courtroom, or the most experienced.

They are the most prepared.

Bohren tried a wide variety cases as an attorney in private practice — civil, criminal and family law — for 25 years prior to joining the Waukesha County bench in 2007. He just recently rotated into the Civil Division, after three years in Family Court, preceded by an initial assignment in the Criminal Division.

“I always thought when I was in practice that preparation was critical. Whether I had a winning case or a losing case, preparation makes it easier for the attorneys, the clients and the court,” he says.

When you’ve done your job, he is happy to do his.

“I enjoy being a judge, and the opportunity it brings to resolve disputes. I enjoy the academic challenge and the research part. But I also like the interchange with attorneys, juries, and just about everyone else who comes into court. It’s a rewarding job to be able to solve problems and work through issues.

“I view myself as flexible, although others may not.”

The Court’s Schedule

Motions are heard on Mondays, with the afternoons earmarked largely for final pretrials and status conferences. The bulk of time Tuesdays through Thursdays is set aside for trials, although sometimes a trial might run into Friday as well.

On these days, Bohren usually starts the trial at 9 a.m., after an 8:30 and 8:45 status or scheduling conference on other matters. He follows the same procedure in the afternoons, starting at 1:30 with another brief matter or two, and then returning to the trial at 2 p.m.

Motion Practice and Discovery

As a general practice, all motions must be in writing. However, once in a while, an oral motion is made that deals with an issue that all the parties have been well aware of for a while, and all agree that a ruling would be helpful. In that instance, Bohren will address the motion.

With regard to any motion papers, Bohren urges counsel to be thoughtful in their drafting because he does read and consider them. It is not necessary to include a draft proposed order.

It is rare for him to commence a motion hearing and then need to continue it to a later date — he does his best to schedule wisely and avoid such inconveniences. However, the Family Division was the exception to the rule due to the case load and scheduling. On a similar note, absent good cause, Bohren will not continue a motion hearing date solely upon the request of one or all of the attorneys. Attorneys are given input on dates when scheduling a matter, and therefore “I’m not ready” won’t be sufficient.

Bohren is a proponent of technology in the courtroom and to that end, he tends to allow telephonic appearances and/or videoconferencing for motion practice. The problem is he does not have the technology in his courtroom to accommodate such conferencing requests. However, the technology is available in the courthouse, and with adequate notice, arrangements can be made to make it happen. He notes that, as attorneys continue to expand their practices across multiple counties, and sometimes multiple states, technology will undoubtedly play a role in that development. He prefers to be on the front end of that trend.

When attorneys find themselves in a dispute during a deposition, if Bohren is available, he will take their call and rule on the matter.

For protective motions and motions to compel, he points out that the local rules call for a face-to-face meeting between counsel where they attempt to settle the matter. If there is no statement in the affidavit in support of the motion indicating that this occurred, he will not hear the motion until it does.

Pretrial Litigation Pointers

Bohren is an advocate of alternative dispute resolution and orders mediation at the outset of just about all cases.

When he schedules a case, he uses a standard order mandating the exchange of pretrial memoranda and stating what those memos should contain. They are: a listing of the issues; the theories of liability or defenses; stipulations; evidentiary issues; the anticipated length of trial; the identification of witnesses and summaries of their testimony; a designation of depositions to be used at trial; motions in limine; proposed jury instructions and proposed forms of verdict. In addition, settlement attempts should be documented. And, if a court trial will be held, counsel should prepare proposed findings of fact and conclusions of law.

If counsel plans to use PowerPoint, or other technology at trial, this should be indicated on the memo as well. PowerPoint slides should be shown to opposing counsel so that any objections can be dealt with at the pretrial. Bohren’s courtroom is equipped with a screen and power outlets at counsel tables, but attorneys will need to bring their own computers and projectors. His staff will let attorneys hook up and practice with the technology in advance of the trial date, to avoid any technology glitches while jurors are waiting.

The more conventional tools for visual aids, a chalkboard and easel, are also available.

Memos must be filed at least 10 days before the final pretrial. They are a strong indicator to Bohren if an attorney is prepared and knows her case. Attorneys should take great care to ensure that all potential witnesses and exhibits are identified, because Bohren disfavors requests to call witnesses or to introduce evidence that are surprises to opposing counsel. Good cause will be required to do so.

Civil pretrials typically last a half hour. Whenever feasible, Bohren will hear any motions in limine at the pretrial, or they are scheduled for another date.

He further explains that, in his courtroom in particular and in the Waukesha County Civil Division as a whole, when cases reach the final pretrial stage, it is generally assumed that the attorneys are ready to try their cases. In some cases, Bohren is able to schedule a trial in as little as 30 days after the final pretrial, if that is workable for counsel and the parties.

As for briefs, he likes them to the point, reminding that they should contain the law, the party’s position, and anticipated responses to other parties’ arguments. Bohren is pleased to report that the level of written advocacy is overall very high in Waukesha County – keep it up!

Trial Procedures

Voir dire begins with Bohren asking the venire to state their name, age, marital status, employment and that of their spouses, and any prior jury service. Thereafter, counsel does the questioning.

He does not set voir dire time limits. The same holds true for opening statements and closing arguments. He hasn’t felt the need to do so.

Challenges for cause may be made via a sidebar conference. If they will be lengthy, he will move the argument to chambers.

One alternate will be chosen if it is anticipated that the trial will last longer than one day. Two or three alternates might be chosen for lengthier trials. The alternates are chosen immediately before deliberations, by lot.

Once empanelled, he reads Civil Standard Instruction 50 to the jury regarding introductory concerns such as witness credibility, burdens of proof, etc.

He additionally lets them know up front that they will need to rely upon their individual and collective memories of the arguments and evidence, because trial transcripts won’t be available for their use during deliberations.

Bohren tends to favor allowing jurors to take notes, and if counsel shares that opinion, legal pads will be distributed. If not, he holds a hearing on it and then makes a ruling.

Exhibits should be premarked, in accordance with exhibit lists that the attorneys are required to prepare and exchange in advance of trial. After they are received, Bohren is generally not opposed to publishing them to the jury.

Jury instructions are usually discussed at the time of trial, unless the case presents unique issues that might require him to address them at the final pretrial.

With regard to courtroom formalities, attorneys need not ask for permission to approach a witness. Bohren prefers the use of witnesses’ surnames.

After the verdict is read, Bohren reminds the attorneys of the statutory deadlines for filing motions after verdict.

Family Law Pointers

To become a guardian ad litem in Bohren’s court, an attorney should send a letter requesting it. In accordance with the local rules, that should be accompanied by proof that the lawyer has malpractice insurance, and has completed the requisite continuing legal education. He has from time to time waived the CLE rule for GALs with “exceptional experience.”

In some cases, a GAL’s written recommendation has definitely helped to settle the case. In others, a verbal recommendation at the time of hearing, after listening to the evidence, is really the only workable method. Experienced GALs are generally adept at differentiating their cases into either category, he says.

County advancements for GAL payment are available in extremely limited circumstances in Waukesha, according to Bohren. One of his standard orders upon a GAL’s appointment is for both parties to advance $500, unless one or both are indigent. After that sum is exhausted, he’ll order monthly payments in accordance with what the parties can afford, at the GAL’s “standard” rate, which he defines as anywhere between $125 and $250 per hour. If a balance accrues, the county will pay up to $65 per hour toward that. Contempt and capias orders will be issued against parents who do not pay what is owed to the GAL.

“We try to protect our GALs in Waukesha County. It’s an important job. When I set the GAL’s hourly rate, I attempt to come up with a rate that I can expect the parties will actually pay,” he says.

Proposed findings of fact, conclusions of law and judgment of divorce are, of course, extremely helpful for default divorces. Attorneys sometimes prepared them in advance of contested divorce trials, and while he didn’t require that, it was useful at times.

As for those findings, he says that he would not approve them unless they had been reviewed and approved by opposing counsel. He was not inclined to approve findings submitted under a “five-day rule” procedure, unless one of the parties is unrepresented.

Pretrials are scheduled in all contested matters, and they typically last longer than the average civil pretrial. Parties should be present. If both parties are represented, Counsel meet in chambers. If one party is pro se, he’ll conduct it on the record in court.

He’ll offer guidance, meaning he might discuss what he has done in other similar cases, but he won’t get into the specifics of the case at hand.

Pretrials are separate appearances. If no settlement results, he’ll pretry the case once again on the day of trial, and give the parties and attorneys time to negotiate outside of his presence, if that might facilitate a settlement. If the case settles on the pretrial date, if the parties wish to get a default divorce on that date, he’ll grant it, time permitting.

It’s not that he’s averse to trying the case; but if possible, with family law cases especially, he believes that settlements crafted by the parties are preferable to orders he might have to impose. “Someone once said, ‘They build steps on a courthouse so people can settle,’” he says.

With regard to which documents to bring to the pretrial, updated financial disclosure statements are a must, along with Mac Davis calculations if support is an issue. Bohren doesn’t require it, but he always finds it helpful if supporting documents are attached to back the figures, such as copies of wage stubs, credit card statements, etc.

A long-term marriage “is really in the eye of the beholder,” he remarks. “Clearly a marriage of 20 years is, and a marriage of three or four years isn’t. Anything in between that really depends upon the facts.

There are so many unique circumstances – living arrangements, financial arrangements – that need to be considered, beyond just the length of the marriage.”

As for overtrial, Bohren has no hard and fast rules for it. However, he can state that sometimes he becomes slightly nervous when he’s hearing repeatedly that, “It’s the principle of the matter!” Or, when he sees counsel enter the courtroom with multiple bankers’ boxes of material, he usually fears that trial might really become a discovery deposition by an extremely unprepared attorney who has no idea what’s in those boxes.

Rarely has he had to make such an order, citing the high level of civility and professional among the area’s family law bar. Once again, he urges, keep it up!

Criminal Law Tips

Bohren will accept Alford pleas in appropriate cases, taking care to differentiate between an Alford guilty plea versus an Alford no-contest plea, in accordance with case law.

He’ll order PSIs whenever counsel requests it, or sometimes sua sponte, depending upon the complexity of the case, the impact it might have had upon the victim, or when he wants more information about the defendant’s background, for example.

As for conditions of probation, he orders employment searches and drug and alcohol screening frequently. Bohren adds that making sure that the victim has been made whole from a financial standpoint, if possible, is always important to him. He will determine and enforce a restitution order separate from the Probation Department, if need be.