Episode 7

Transcript

Chris Koehler: Welcome to another episode of Frantz Ward's podcast series, Shoveling Smoke. I'm Chris Koehler, a partner of Frantz Ward and your host for today's podcast. When we first started these podcasts, we told you that we would be talking to many of our Franz Ward attorneys about the legal issues that are impacting your businesses and your lives. But we also planned from time to time to have outside guests, to bring us different perspectives on what is happening on the legal landscape. That's what we'll be doing today. Here with me as our first outside guest is Judge Brendan Sheehan, the judge of the Cuyahoga County Court of Common Pleas and the court's current administrative judge. First, a little background on Judge Sheehan. He's a proud Clevelander and a graduate of St. Edward High School in Lakewood. He obtained his bachelor's degree from Baldwin Wallace, his law degree from Cleveland Marshall, and he holds a Master's in Judicial Studies from the University of Nevada. Before joining the bench in 2009, Judge Sheehan saw the law from many different angles. He served as Judge Donald Nugent's chief law clerk in the United States District Court in Cleveland. He had a civil practice and he also served as an assistant Cuyahoga County prosecutor. At this point, he truly has seen it all. Most importantly, Judge Sheehan is married to a fellow judge, Judge Michelle Sheehan of the Cuyahoga County Court of Appeals. And you have how many kids, Judge?

 

Judge Sheehan: I have three. Two girls and a boy. One's in medical school. One's at Miami. And my third is graduating from St. Ed's and will be another Miami of Ohio college student.

 

Chris Koehler: I suppose, if I wanted to test your judicial abilities and temperament, I could ask you which one is your favorite, but I won't put you on the spot.

 

Judge Sheehan: Thanks, Chris.

 

Chris Koehler: The first thing that struck me as I was preparing to talk to you today is the fact that you've now been on the bench 12 years. And I think I've knew you before you were on the bench. Does that seem like a long time to you or a short time?

 

Judge Sheehan: Chris, I have to say time flies when you're having fun. It seems like yesterday I was starting my first jury trial. 350 trials later, I'm still here and it's just been a great honor to serve Cuyahoga County.

 

Chris Koehler: Well, do you have any thoughts on how the legal landscape has changed since you became a judge? What's happened in those last 12 years?

 

Judge Sheehan: I will tell you, Chris, the one thing that I have seen change is, and it's kind of goes to your audience is civil trials and the lack of civil trials in our courthouse. And that could be because the lawyers are doing such a great job or because people are finding other ways with mediation, arbitration. But when I started in that courthouse, I could tell you, we probably would have 300 civil jury trials, and now we are down to less than a hundred. So it's something interesting to watch on the civil side, the trial decrease.

 

Chris Koehler: Do you prefer doing civil or criminal trials, or are they the same to you?

 

Judge Sheehan: You know, I love them both. I really do. The criminals always interesting. There's always some twists and turns, but the civil, I have to compliment, the civil lawyers do such a great job and they're so well prepared that it's a pleasure to preside over a civil trial and observe and watch the lawyers do their thing. So it's good stuff.

 

Chris Koehler: Do you get feedback from jurors after trials, whether they're generally more interested in the civil trials or the criminal trials?

 

Judge Sheehan: It's interesting. I had one case. It was like a computer patent issue and it was tried to me and I thought it was the most boring trial ever with documents and everything. And that jury just loved it because the lawyers brought to life the evidence, and it was just good stuff, so I enjoy both. And I have to tell you, the jurors do enjoy good lawyering and good practices in the courtroom. So it doesn't matter if it's a civil or criminal, it is great to watch our jurors and talk to them afterwards. I had a great pleasure. I have to tell you a story, Chris. Your managing partner, Chris Keim, and I were fellow prosecutors and him and I were actually trying a case together. And it was probably one of my favorite trials ever. And despite Chris's lack of talent in the courtroom, it was fun. And I'm joking. He's just a tremendous lawyer. Talking to the jurors after these trials, they come back and they enjoy good lawyering. They enjoy, they love the service they're doing to their community and they feel good about what they've done after they leave that courthouse. So it's great to talk to them after.

 

Chris Koehler: It's been a frustration of people like myself, and I've talked to Chris Keim and others about this as well, that what we really like to do is be in the courtroom sometimes and to actually try cases. So the fact that, as you mentioned, the number of civil trials is going down, has been a challenge for us as to how to get that action that we like to get and that we're not able to get so much anymore.

 

Judge Sheehan: Chris, one thing I have to tell you, the NYU Law School contacted me a couple years ago, and this was a big concern of mine is people who know me out in the community know that I love being in court. I love being in trial. I love trials. And they said to me, "What are we going to do about our lack of civil jury trials?" And we actually formed a task force in Cuyahoga County and members from all different aspects of the civil community and said, "What can we do to ensure that people's seventh amendment is being utilized in our courthouse?" And one of the things we wanted to do is the confidence of the jurors. And people wanted to make sure that there was confidence in that jury decision. So things that we've done is we've allowed jurors to take notes. We've allowed jurors to ask questions. We've allowed better jury instructions given to them during the trial. And when I was trying cases back in my day, I said, "I would never want a juror to ask a question." And the lawyers are very hesitant of it. But I tell you everyone who has agreed to do it and has allowed it to happen, they get it, they see what the jurors are missing or not missing or where their minds are at. And it puts together a better decision. And I tell you this, it's just something I'm hoping after COVID that we can get moving on. And it's a tremendous art that we have as lawyers in trying cases. And I think people need to remember, we can't lose our seventh amendment right to jury trials. It's something that I'm passionate about.

 

Chris Koehler: Well, speaking of COVID, you became administrative judge of the court in October of 2019. So you had a few months of normalcy, I suppose, before the pandemic hit. First of all, how do you become administrative judge besides drawing the short straw?

 

Judge Sheehan: People say drawing the short straw is it, but it's an election of my colleagues. There's 34 common pleas judges and all the judges vote on who they want as the next administrative judge. The person prior to me was Judge John Russo and Judge Russo had served six terms and he was done. I put my hat in the ring and my colleagues all supported me. And I'm proud to say I was elected the administrative judge in 2020 and presiding judge. And that means over the domestic courts, the probate court and juvenile courts. So I'm the administrative and presiding judge. There's over 50 judges I oversee, policy and procedures. And you think that was great. I get elected in January of 2020, I'm on a honeymoon, everything's off to a good start. And I got some issues, I'm getting comfortable in my spot and then March hits.

 

Chris Koehler: Are you telling me that when John Russo gave you the administrative judge playbook, there wasn't a chapter for dealing with national pandemic?

 

Judge Sheehan: There was nothing about national pandemics anywhere. And Judge Russo laughs because, those of your viewers can't see me, when I started, I had darker hair. I started getting a lot grayer. As you knew me, Chris, I got a lot grayer. But poor Judge Russo lost all his hair when he was administrative judge. But anyways, the issue that happened was, March, I'm sitting in my office and I'll never forget it. I look, and I get a meeting with Dr. Bruner, who is our medical doctor in our jail facility. And she comes to see me and she says, "Brendan, we have an issue." And I go, "What's that doctor?" She goes, "You heard about this virus?" I go, "Yeah. I heard something. It's in China." All of a sudden, she said, "When this virus hits, it's not if it hits, but when it hits, our jail population is so large right now that we are not going to be ready for this. And we are going to be in a lot of trouble and there's going to be deaths in that county jail." So I immediately called an emergency meeting of all the judges. And I remember the first thing we did is we canceled jury trials. And the second thing we did was, let's get a game plan to resolve and get cases resolved quicker in that county jail. And so I come home that night, Darren Tom's our media advisor, sent out a press release. Did this, said that we canceled jury trials. I'm getting calls from the Supreme Court and my colleagues around the state saying, "What in the heck's wrong with you, Sheehan? Why are you canceling jury trials?" And I said, "Well, we're concerned." I go through this. I'm still being laughed at by all my colleagues, like I'm jumping the gun. All of a sudden the President of the United States is on the media the next day saying we have a serious pandemic and this is a big issue. Bring everyone back home. And then the NBA canceled their season. And let me tell you something, when the NBA canceled their season, then people said, "Sheehan, what did you know that all of a sudden you canceled jury trials?" No one cared about the president, but when the NBA canceled, that was when they said I had some inside info. I'm proud to say, Chris, that we were ahead of, honest to God, we led the nation in dealing with this pandemic. Not only in the way we responded with the jail, not only how we responded with our court. We were the first ones to make people wear face masks in our jail and in our courthouse before anyone was even talking about face masks are required. And it's not because I'm someone who's so smart, I had great advisors. I had Metro Hospital who is listening and talking to me and I had great colleagues, collaboration with the prosecutor, the executive, the sheriffs, and we all put this together and I'm proud to say we were a national headline of what we did right and everyone was trying to follow our leads. So I'm proud to say, there's no playbook, but it was just a lot of luck and a lot of collaboration between everyone.

 

Chris Koehler: It sounds like everybody was thankfully on the same page and you didn't get a ton of pushback from your colleagues on the bench.

 

Judge Sheehan: No, I've got great colleagues and there's a lot of skeptics and people thinking, why are we doing this so quickly? But they all fell in the line and they all saw what we were doing. And I think the key to that is just communication with everyone, just talking about it. And one of the things, when I'm talking about communication, keeping people informed is the Bar Association, another area that I felt like the civil firms, how does this pandemic affect the civil firms and their practice? And I formed a benchmark task force that I've met with weekly since this pandemic to talk about issues. What's going on in the civil world? What are the needs of the lawyers in the law firms? We have such a rich legal community in this area, I couldn't let this pandemic decimate it. And I had to make sure that we are moving. The doors of the Justice Center cannot close and we had to move justice and we had to move cases. And we were very lucky that the Bar worked with us and we're still getting great ideas, what to do believe.

 

Chris Koehler: Me, we and our colleagues and my colleagues and our clients appreciated it. Because, although, like the rest of the world for about three weeks to a month, everything kind of was at a standstill. Everybody really quickly, over at the courthouse, figured out how to get business done. And I'm sure you weren't familiar much with Zoom or any of those things a year ago, but it was amazing how technologically the court and the judges and the clients and the attorneys got used to it, used to doing hearings and conferences by Zoom.

 

Judge Sheehan: I will be honest with you, Chris, in March, I had no idea what Zoom was. Matter of fact, I think Zoom was a show Chris Keim used to watch on TV. We chuckle about Zoom, but as we walked through, the first thing we did is we had to be able to communicate and let lawyers come in and have settlement conferences and have pretrials and have discussions with people. How do we do it? And we actually purchased all these Zoom accounts, made sure judges were able to work from different areas, have hearings. I mean, who would've thought a year ago, we'd be doing Zoom pleas from the county jail. We'd be doing Zoom settlement conferences in our courthouse. It's just amazing. And one of the things that now that we're hopefully coming through the pandemic, I'm hoping there's a lot of things we can learn. When I sit back and I took over as administrative judge, one of the things I wanted to do is change the culture of our justice system. We've always heard about trying to make change and how hard it is. If there's a blessing in the COVID is the opportunity to make our justice system better. And how do we do that? We do that with making pretrials easier for lawyers so you don't have to drive down to the courthouse and park your car and wait for a judge. You can just go on your computer and be there for the Zoom pretrial. You can see and talk to your clients. Folks can do depositions via Zoom. You don't have to travel all over the country. There's some just great things that we're doing and hopefully these changes will continue as we keep moving through.

 

Chris Koehler: So you think some of these technological tools that were forced upon us are here to stay in some respects, even after we open up.

 

Judge Sheehan: Absolutely. If I have it my way, I'm encouraging judges to keep ... I've heard lawyers tell me, "Hey, listen, I'd rather be in person because I get more done." I'm not saying that that's not going to happen, but you know what, the simple things that we can do by Zoom, it's going to be so much better for your clients, for the lawyers, for our legal community. We're taking surveys on it and so far, all the surveys are saying, we love the Zoom pretrials. We love the Zoom things. Now, there's a lot of times that judges are making your clients come down to that courthouse because they think there's a need and there's going to be that balance. But I hope for the most part, people are going to keep that Zoom pretrials and not make people travel into the Justice Center for unnecessary meetings.

 

Chris Koehler: So what's the status now as far as how open you guys are and the status of jury trials, both in the criminal and civil arena?

 

Judge Sheehan: Well, it's funny, not only as administrative judge, I have to figure out how to do that. We are now doing something very different in Cuyahoga County. We are now doing call-in jury system. And what does that mean for your listeners? Before, when you were in jury service in Cuyahoga County, you'd get a summons. You'd have to show up on a Monday or a Wednesday. You'd wait on the fourth floor until your name is called and you're put on a case. Now we've done individual jurors for each case. So if, Chris, you have a trial coming and it's going to go, we've summoned a jury for your case only, and that's your jury. We did that for purposes of spacing and planning. But when I talk about spacing and planning, now we have not only the Justice Center, I had to convert the Global Center into another courthouse. So we have created courtrooms in the Global Center for civil cases and arbitrations and mediations, so people can be socially distanced. Jurors can gather. So now we stage the jurors over at the Global Center. And those of you who don't know where the Global Center is, it's right across the street from Ontario. It's the Global Center, It's connected to the convention center and we've converted all those places into courtrooms. And if you get a chance, walk over there, take a look. It's tremendous work. The lawyers love it. The setup is great. And we've now allowed jurors to have their trials over there, less elevator issues, more room for spreading out. But the thing that we did is, we've set the trials now to start criminal matters April 26th. So on April 26th will be our first cases. Now, we're not going to allow 34 judges to start trying cases right away. I had to limit the amount of cases. So we started with five courtrooms per day. So we're going to have, on Monday, five courtrooms, Tuesday, five courtrooms, Wednesday, five courtrooms. And so we'll have 15 cases at most going in our courthouse each day. And how do they go? I select them, so talk about pressure as administrative judge. The judges have to submit to me a case. I evaluate that case based on a criminal side, the length of time in jail, the amount of time the case will take. On the civil side, it's the number of witnesses, experts, length of trial and length of age of case. And those are the factors I look at. So when I look at those things, I set the criminal, I set the civil cases and they're ready to go. They get put on the calendar. It's out there for the community to know, and their case is going and that judge is able to try it. So as a result of that, people say, "Well, what does that mean for you?" It means I have to have a deputy walk around with me because a lot of people want to punch me because their case isn't going or on the list. But in all honesty, it puts a control factor in so you're not getting people triple booking trials, and it's more consistency. A trial date now means a trial date. You are having a jury come down for your case. So Chris, if your case is set, there's a jury coming for you.

 

Chris Koehler: Are criminal trials going to get precedence over civil trials? Are you going to move on parallel paths?

 

Judge Sheehan: Well, the first two weeks of April, we're doing them in criminal only. And that's because we want to get the backlog of defendants who are sitting in the county jail out of there one way or the other. After the two weeks, May 10th is going to be our start of civil trials. And we're going to do the same thing we're doing with the criminal. The judges submit the case. The case gets to me. I look at all those factors and I decide which cases go, that starts in May. But the one thing, Chris, I will tell you that I'm proud to say, the civil cases haven't been sitting stagnant. And I'm proud to say that. We've been doing ADR. We've been pushing mediation. We've been pushing judges to do pretrials. And it's just tremendous to get all that stuff going because our staff, our judges are working those civil cases, trying to get those settlements done. Now, on the other hand, too, I should say bench trials have always been going on. I just want everyone to understand that criminal and civil jury trials have been halted, but bench trials have continued. So if you had a civil bench trial, that could always go whenever, but the jury trials are the ones that we are pushing on the calendar.

 

Chris Koehler: Have you seen an increase or a decrease or status quo in the number of cases getting settled or resolved other ways during the pandemic because there aren't trial dates?

 

Judge Sheehan: I have seen our civil cases, this is really interesting. Before I came over here, I wanted to be prepared, and I was looking at the numbers. We've had the same amount of civil cases filed to date now that we did last year, which is interesting. Chris Koehler: That's strange.

 

Judge Sheehan: And the settlement of those cases has been equal, so the disposition of cases have been moving. So it is interesting to watch those numbers. Now, what someone has told me, I was talking to a defense research company. I went out and spoke on their radio broadcast and they were telling me that this lag effect is going to happen a year down the road. These cases have been in the pipeline, their cases have been filed. They've been on schedule for a year. But what we're going to see is the effect of COVID next year and the year after, because of the way the filings been. So we are going to see that issue in the next year or so in my mind.

 

Chris Koehler: So when we have Judge Sheehan in part two a year from now, we'll ask you about those statistics.

 

Judge Sheehan: Absolutely. Absolutely.

 

Chris Koehler: One thing that I know is of interest to a lot of the lawyers and business people in town is I know there are some plans being discussed for either a new courthouse or renovated courthouse. Do you have any insight as to where that stands?

 

Judge Sheehan: Yeah. When I took over as administrative judge, there were all these plans about the new courthouse and a new jail. And I took over that position and then it kind of was stagnated because of COVID. So we were off the radar for about a year with this group. Those discussions just started picking back up. We're meeting April 15th. It's online. Your folks, your listeners can watch it online. The stakeholders all meet. We're discussing the Justice Center, ideas for the Justice Center, the cost to build a new Justice Center, the cost to renovate the current Justice Center. I will tell all your listeners this, whatever happens, one promise I can make to everyone that Justice Center will be in downtown Cleveland. It's not going to be moved away from the center part of this community. As long as I'm here, that Justice Center needs to be in the center of Cleveland. And it will be there as long as I'm around.

 

Chris Koehler: And it sounds like it's a very open process and that all the stakeholders are involved in the decision.

 

Judge Sheehan: Yeah, it is definitely. There's the executive, there's the prosecutor. There's every stakeholder involved that has a vote on this. And it's interesting because, so far we've been all agreeable, but when it comes down to keep pushing the ball forward, it's definitely getting more traction as we get talking about what's going to happen. And one of the biggest issues, and Chris, I will tell you this, we're fortunate that we work with one of your members on that from Frantz Ward regarding ... Ian Frank has helped us out. We've been using him as a consultant, dealing with the Justice Center and the jail issues. And we're very lucky to have great legal representation to help us see the issues. But one thing I always tell our listeners is, listen, ultimately, this is the taxpayer's money, taxpayer's dollars, and we need a budget. I'd love to build a mansion, but if I don't have the money to do it, I can't do it. So we're waiting to see what the county comes up with, a financial plan before any of these discussions really keep getting more movement on it.

 

Chris Koehler: Well, as somebody who goes over there and I'm sure you can appreciate somebody who works there every day, we understand it's needed, much needed, but it's important to do it right, so it's good that all these considerations are occurring.

 

Judge Sheehan: Well, it's kind of funny. People want to see what a new Justice Center looks like. Go to the Global Center, take a look at how we design those courtrooms over there.

 

Chris Koehler: Well, Judge, we do appreciate you coming, but we want to be respectful of your time because we know you've got a busy docket and a lot to do over there. We could probably go on for another hour, but one thing we've been trying to do at the end of every one of these podcasts is have a couple takeaways from our guest. Do you have any concrete takeaways you could give to our listeners, our clients, or the citizens?

 

Judge Sheehan: Yeah, I would tell everyone, listen, the takeaway you have to understand is during COVID and after COVID the justice system never closed down. We're there to serve the people. People may be frustrated with delays and different things, but people need to be patient, but we are moving the ball forward. And those of you who want change in our community, you're going to see a lot of changes. And I'm hoping that the viewers and listeners and the lawyers all agree that we're doing the right things to keep moving the ball forward.

 

Chris Koehler: Well, again, as somebody who goes over there and is on Zoom calls with you and your fellow judges, we do appreciate your leadership and what you've done to keep the justice system moving during these times. That hasn't happened in all aspects of the economy and it's really impressive what you've done over there, so we thank you for that.

 

Judge Sheehan: Well, Chris, thank you. And thank you for having me and thank you to your firm for doing this. Thank you.

 

Chris Koehler: Sure. So that wraps up another episode of Shoveling Smoke. Thanks for checking in with us and we hope you listen next time. Thanks, Judge.

 

Judge Sheehan: Thanks, Chris.

 

Chris Koehler: Shoveling Smoke is a production of Evergreen Podcasts. Our producer and audio engineer is Sean Rule-Hoffman. Thanks for listening.