Sometimes, Court Could Have Been an Email

Michigan already has the authority to decide motions on the papers, hold non-evidentiary proceedings remotely, and tax costs against the party that forces a wasted appearance. The rules exist. The form field exists. What is missing is any price on a citizen’s time worth paying attention to, and any published number that would tell the public how often their day is taken for nothing.

The Meeting That Should Have Been an Email Has a Courthouse Version

I have sat in a Michigan courtroom for two hours to watch a proceeding resolve in ninety seconds. Not an evidentiary hearing. Not a trial. A scheduling matter that had already been briefed, already been stipulated to in substance, and already been decided in every meaningful respect before anyone drove anywhere. The judge was efficient. The attorneys were prepared. Nobody did anything wrong. The system worked exactly as designed, and the design consumed most of a working day from every person in the gallery.

That is the part worth sitting with. The waste was not misconduct. It was procedure operating normally.

The corporate world developed a shorthand for this, and it stuck because it named something everyone already recognized. A meeting that could have been an email is a meeting whose entire informational content could have been transmitted in writing, but which happened in a room anyway because the room was on the calendar. The courthouse version is worse in three specific ways. Attendance is compelled rather than expected. The cost of nonattendance is a sanction rather than a raised eyebrow. And the people bearing the cost are almost never the people who scheduled it.

Michigan does not lack the tools to fix this. That is the finding this piece is built around, and it changes the shape of the argument considerably. The usual reform conversation asks a legislature to grant courts a power they do not have. Here, the powers are already on the books, in three separate court rules, with a state-approved form containing a blank line for the dollar amount. What is missing is the default setting, the price, and the number.

What the Rules Already Allow

Start with the motion. Under MCR 2.119(E)(3), a Michigan court may in its discretion dispense with or limit oral argument on motions and may require the parties to file briefs in support of and in opposition to the motion. MCR 2.116(G)(1) extends the same principle to summary disposition. The Michigan Court of Appeals has treated the decision to omit oral argument as reviewable for abuse of discretion, and has upheld its use where the briefing was thorough enough that argument would have added nothing. The corresponding limit is meaningful and worth stating plainly: a court abuses that discretion if a party is deprived of the opportunity to respond to the opposing party’s arguments. Deciding on the papers is not permission to decide without hearing from someone.

Michigan business courts already run this way in practice. Orders issued out of the Oakland County business docket routinely state that oral argument is dispensed with under MCR 2.119(E)(3) because it would not assist the court in its decision-making process. The mechanism functions. It is simply optional, and optional mechanisms get used by the judges inclined to use them and ignored by the ones who are not.

The federal courthouse across the street handles this differently in one small but structurally important way. Under Eastern District of Michigan Local Rule 7.1(f)(2), when a judge decides to resolve a motion without oral argument, the court issues an affirmative document saying so. A notice of determination of motion without oral argument goes on the docket, gets served on the parties, and tells everyone in writing not to come. Michigan state practice generally leaves the parties to find out that argument was dispensed with when the order arrives, or to appear and discover it in the room.

Then there is the remote question. MCR 2.407 governs videoconferencing in Michigan civil proceedings, with MCR 2.408 and Administrative Order No. 2020-17 layered on top. The rule is more permissive than most people assume. Certain proceedings carry a presumption in favor of videoconferencing, subject to a court’s determination that a particular case is unsuited to it. The factors a court weighs under MCR 2.407(C) already include the convenience of the parties and witnesses and the cost of producing witnesses in person. Cost and convenience are not afterthoughts smuggled in by reformers. They are enumerated considerations in the existing rule.

The rule also protects the thing that ought to be protected. Nothing in it prevents a person who has the right to appear in person from demanding to do so, and MCR 2.407(B)(5) preserves a court’s authority to require an in-person hearing even in a presumptively remote category. That combination matters for the reform argument, because it means expanding remote defaults does not require dismantling anyone’s right to physical presence. The opt-out is already written.

Twelve Dollars

Here is where the record turns from an efficiency problem into an accountability problem.

MCL 600.2552(1) provides that a witness who attends an action or proceeding pending in a court of record shall be paid a witness fee of twelve dollars for each day and six dollars for each half day. A witness may instead be paid for loss of working time, but not more than fifteen dollars per day is taxable as costs as the witness fee. Twelve dollars is what Michigan law says a day of your life is worth when the court requires you to spend it in a hallway.

The statutory history is the part that does the analytical work. The current figures trace to amendments effective in 2000, under 2000 PA 85. That same amendment added subsection five, which provides that the per-mile reimbursement rate for a witness’s travel is the same rate the Department of Management and Budget establishes for state officers and unclassified state employees on state business. In other words, in the same legislative act, Michigan built an automatic escalator into the mileage figure and left the human figure fixed.

Twenty-six years later, the mileage rate has moved every time the state adjusted its own travel reimbursement. The twelve dollars has not moved at all. A person subpoenaed to a Michigan courtroom in 2026 is compensated for the wear on their vehicle at a contemporary rate and compensated for their labor at a rate set when gas was around a dollar fifty a gallon.

Run the arithmetic against any real Michigan wage and the compensation stops functioning as compensation. A person earning the state minimum wage loses substantially more in a single unpaid shift than the fee restores. A person on hourly work with no paid leave loses the shift, the fee does not cover it, and the arithmetic gets worse for anyone who needed childcare or paid for parking. For the self-represented litigant, who is not a witness at all and therefore outside the fee structure entirely, the recovery is zero.

Michigan Already Solved This Problem. For One Group.

The obvious objection to everything above is that courts simply cannot afford to value a citizen’s day realistically, that the money does not exist, and that twelve dollars reflects fiscal reality rather than institutional indifference. That objection collapses on contact with MCL 600.1344.

Jurors are compensated under an entirely separate section of the same act. Under MCL 600.1344, a juror receives not less than twenty-five dollars for the first full day and not less than forty dollars for each subsequent full day, with half-day rates proportionate. Where the state court administrator, at the direction of the Supreme Court and with confirmation by the state treasurer, determines that sufficient money is available in the juror compensation reimbursement fund, those floors rise to thirty and forty-five dollars.

That structure did not arrive by accident. Public Acts 51 and 52 of 2017 raised the juror compensation minimums and doubled the juror mileage floor from ten cents to twenty cents per mile, effective April 1, 2018. The Legislature also created a dedicated reimbursement fund so that county funding units would not absorb the increase alone.

The protections extend past money. Under MCL 600.1348, an employer who threatens, disciplines, or discharges a person because that person was summoned for jury duty or served on a jury is guilty of a misdemeanor and may be punished for contempt of court. There is no general equivalent for a witness. The employment protections that exist for court attendance are narrow and category-specific: crime victims subpoenaed by a prosecutor are protected under MCL 780.762, with a misdemeanor penalty of up to ninety days or five hundred dollars, and employees participating in a court action connected to a report of suspected legal violations are protected under the Whistleblowers’ Protection Act at MCL 15.362. An ordinary civil witness, subpoenaed by a private litigant to sit in a hallway for six hours, has neither.

Then there is the provision that settles the question of whether Michigan understands this problem. MCL 600.151e authorizes the state court administrator to draw on the juror compensation reimbursement fund to support a position within the State Court Administrative Office providing technical assistance to trial courts on jury management. The stated purposes of that position include improving efficiency and reducing the number of citizens summoned unnecessarily for jury service. The same subsection authorizes funding a statewide jury management software contract toward the same end.

The distinction is not defensible on principle. A juror and a subpoenaed witness lose the same day, absorb the same wage loss, arrange the same childcare, and drive the same distance. The one difference that actually explains the gap is institutional: the court system summons jurors on its own behalf, so the cost of wasting them lands on the court’s own budget and its own ability to seat panels. Witnesses and parties are summoned by litigants, and the cost of wasting them lands outside the building entirely.

The Asymmetry Nobody Designed and Everybody Maintains

Consider the two failure modes side by side, because Michigan law treats them very differently.

When a person fails to appear, the machinery is comprehensive. Failure to comply with a subpoena may be treated as contempt of the court in which the action is pending under MCR 2.506(E). Where a party fails to attend under a subpoena or an order to attend, MCR 2.506(F) permits the court to stay proceedings, tax costs to that party, strike all or part of their pleadings, or refuse to allow them to support or oppose designated claims. Contempt penalties under Michigan law reach a substantial fine, and imprisonment for contempt generally may not exceed ninety-three days. On the criminal side, MCL 764.3 addresses bench warrants for failure to appear, with a stated presumption in favor of waiting forty-eight hours and a requirement that a court departing from that presumption state its reasons on the record.

That is a layered, well-specified, actively enforced system. It reflects a considered judgment that a person’s failure to show up damages the administration of justice and should carry consequences proportionate to that damage.

Now the mirror. When a proceeding is noticed, a person rearranges their life, loses a shift, arranges childcare, drives to the courthouse, and the matter is adjourned at the podium or resolved in a manner that required no appearance at all, the available response is MCR 2.503(D)(2). The court may impose costs. May.

This is not an accusation of bad faith against any judge. It is a description of an incentive structure. Judges manage crowded dockets under performance measures that count how fast cases close, not how many hours the public spent in hallways. Attorneys notice hearings because noticing a hearing is the reliable way to get a decision, and because a hearing costs the attorney billable time that the client pays for rather than absorbs. Nobody in that structure is punished for scheduling an unnecessary appearance. Several people are rewarded for it.

The Box Nobody Checks

SCAO Form MC 309 is the approved order for adjournment under MCR 2.503. It has been in circulation in substantially its current form since a 2001 revision. The form contains a line reading that costs are assessed in a stated amount, payable to a named party, by a stated date.

The blank exists. The rule authorizing it exists. The enforcement mechanism behind it exists, and it has teeth: costs imposed as a condition of adjournment may be taxed summarily and paid on demand of the adverse party or that party’s attorney, and the adjournment itself may be vacated if nonpayment is shown by a verified written statement. A party who obtains a delay and then declines to pay for it can lose the delay.

Michigan built a complete, self-enforcing cost-recovery mechanism for wasted appearances, printed it on a state-approved form, and made it optional. The result is predictable. Local practice varies enormously, most adjournment orders issue with the cost line blank, and the parties who bear the cost of the delay have no reliable way to recover it and often no idea the line exists.

What Michigan Does Not Measure

Michigan collects a great deal of court data. Trial courts submit annual caseload reports through the Michigan Court Application Portal under MCR 8.103 and MCR 8.110, and most of that data now flows into the state’s Interactive Court Data Dashboard. The published performance measures cover clearance rate, time to disposition, age of pending caseload, problem-solving court recidivism, and public satisfaction.

Michigan also requires judges to report on themselves in one specific respect. Under MCR 8.107, trial judges submit quarterly reports on delay in matters submitted, disclosing matters held under advisement beyond the permitted period. The state considered judicial delay in deciding a submitted matter serious enough to warrant a mandatory, recurring, individualized self-report.

There is no equivalent for delay imposed on the public. Michigan’s published measures do not include a trial date certainty or event date certainty figure, which is the national measure, catalogued as CourTools Measure 5 by the National Center for State Courts, of how often a proceeding is held on the first date it was scheduled. The measure exists specifically to evaluate the effectiveness of calendaring and continuance practices. Massachusetts publishes its version in the Trial Court’s regular case flow metrics reports, alongside clearance rate and time to disposition, and has done so across multiple reporting years.

The absence is analytically significant on its own terms. An institution measures what it intends to manage. Michigan measures how long the court takes to finish a case and how long a judge takes to decide a submitted motion. It does not measure, at least not publicly, how many times it told a citizen to appear and then did not use them.

The Framework: Four Changes

A serious reform has to survive contact with the people who run courtrooms, which means it cannot start from the premise that judges are the problem. Docket pressure is real, oral argument genuinely helps in some matters, and a rule that makes judges afraid to schedule hearings will produce worse decisions. The framework below is built to change defaults and generate data, not to second-guess individual calendaring judgment.

One: A papers-first presumption for non-evidentiary motions

Where a motion presents a question of law, has been fully briefed, and requires no testimony, the presumption should run toward decision on the papers, with the court retaining full authority to call for argument in any matter where argument would assist it. Critically, either party should be able to request argument, and that request should be granted absent stated reasons. The existing constraint from the case law carries forward: no party may be deprived of the opportunity to respond to the other side’s arguments. This is a default flip within existing authority, not a new limit on the right to be heard.

Two: Affirmative notice when appearance is excused

Borrowing directly from Eastern District of Michigan practice, when a court determines a matter will be resolved without oral argument, that determination should generate a docket entry served on the parties. The current failure mode is not that Michigan courts lack the power to cancel a hearing. It is that a canceled hearing frequently does not reach the person driving to it.

Three: Presumptive cost assessment for late-vacated proceedings

Where a proceeding is adjourned, canceled, or resolved without appearance within a short window before the scheduled time, and a party or witness has already been noticed, the court should assess compensation to each person who appeared or made irrevocable arrangements, unless good cause is shown. The mechanism is MCR 2.503(D)(2) with the permissive verb replaced. The essential protections are that no assessment runs against a party proceeding without fees on indigency grounds absent bad faith, and that the assessment attaches to the party who caused the delay rather than to the fact of delay itself.

Four: Published appearance burden data

Trial courts already report caseload data annually through MCAP. Adding scheduled non-evidentiary proceedings, proceedings adjourned, proceedings resolved without appearance, and median wait time to the existing reporting stream is an incremental data collection change, not a new bureaucracy. Publishing it through the Interactive Court Data Dashboard puts it where the public and the press can use it. Data is the mechanism that makes the other three self-correcting, because a court that can see its own adjournment rate can manage it.

Draft Statutory and Rule Text

Michigan’s constitutional structure splits this reform in two. Under Const 1963, art 6, sec 5, the Michigan Supreme Court establishes and amends the practice and procedure of all state courts by general rule. The default flips and the notice requirement are therefore Supreme Court rulemaking matters, not legislative ones. The compensation rate is different, because witness fees are already fixed by statute in MCL 600.2552, which means changing the number requires the Legislature. Reporting can travel either route. What follows is drafted accordingly.

The Objections, Taken Seriously

Three counterarguments deserve real answers rather than dismissal, and one of them is strong enough to constrain the design.

Oral argument is not decoration. Judges and appellate practitioners will point out, correctly, that argument surfaces things briefs do not. A judge’s question can expose a weakness neither party addressed. A pro se litigant who wrote a confusing brief may be entirely coherent in person. The framework accommodates this by preserving the court’s authority to call for argument in any matter and by making a party’s request for argument presumptively granted. A papers-first default is not a papers-only rule, and any version that becomes one should be opposed.

Remote proceedings are not neutral across the population. This is the objection that carries the most weight. Broadband access is uneven across Michigan, particularly in rural counties. A person appearing by phone from a parking lot is not participating on equal terms with an attorney appearing from a firm conference room. Remote appearance can also make it harder for a judge to detect coercion in domestic matters, a concern Michigan’s own domestic violence prevention board raised in commenting on the videoconferencing rules. This is why the framework treats remote appearance as a default the litigant can decline rather than a mandate, and why MCR 2.407(B)(5), which preserves the court’s power to require in-person attendance in any case, is load-bearing rather than incidental.

Cost-shifting can be weaponized. Any fee-shifting mechanism can be turned against the party with less money. A well-resourced litigant can absorb assessments that would deter an unrepresented person from filing a legitimate motion. This is a real risk and it is the reason the draft contains an express prohibition on assessments against indigent and self-represented parties absent a bad faith finding on the record. A reform that makes courthouses more expensive for poor litigants would be worse than the problem it addresses. The assessment has to run toward the parties with counsel and resources or it should not exist.

Why This Matters

Court legitimacy is not primarily built in the cases people read about. It is built in the accumulated experience of ordinary people who had to be somewhere at nine in the morning and found out at eleven-fifteen that nothing was going to happen. Most people’s entire relationship with the judicial branch is a traffic matter, a landlord-tenant docket, a custody review, or a day spent as a witness. What they learn in that hallway is what they believe about whether the system takes them seriously.

Michigan does not need permission to fix this, and it does not need a proof of concept. It ran the pilot. It raised the rate, built the fund, wrote the criminal penalty, bought the software, and hired the analyst, and it did all of that for the one category of attendee whose wasted time shows up on the court’s own ledger. What remains is extending a solution the state already built to the people it left out of it.

I have spent enough hours in enough hallways to know that nobody in the building is trying to waste my day. That is precisely the point. When waste requires no bad actor, no misconduct, and no complaint anyone would sustain, the only thing that fixes it is a rule that makes the waste visible and a price that makes it count. Michigan wrote the rule. It printed the form. It left the line blank, and it has left it blank for twenty-six years.

Check the box.