Appeals - materials under seal

Adm no. - 2009-18
Rules affected - 7.211, 7.313, 8.119
Date entered - November 13, 2009
Comments open to - March 1, 2010

At both the Court of Appeals and Supreme Court levels, a new provision that materials that are the subject of a pending motion to seal the record shall be held under seal until the court makes its ruling on the motion.

Newly adopted items

Disqualification of Supreme Court justices
Use of electronic equipment in courtrooms

Confidentiality - mediation

Court rule affected - MCR 2.412 (new rule)
Admin no. - n/a
Issued - 10-28-09
Comments open to - 2-1-10

See later item regarding adoption

This one comes directly from the SCAO's Mediation Confidentiality and Standards of Conduct Committee, rather than from the Supreme Court. The new proposed rule would continue the general rule that "mediation communications" are not admissible in evidence or subject to discovery, but would add a series of exceptions, including disclosures

• necessary to resolve disputes regarding the mediator's fee
  
• necessary to resolve issues regarding a party's failure to appear
  
• making threats of committing a crime, or concealing a crime
  
• "indicating the likelihood" of abuse of a child, an elderly person, or a protected person
  
• relating to claims of professional negligence on the part of a participant
• relating to proceedings to enforce a settlement agreement (qualified immunity)

Link to the proposal (PDF)

New jury instruction on juror behavior

MCivJI 2.06 has been revised to instruct jurors that they may not -

1. discuss the case with others, or among themselves
   
2. read or watch news reports about the case
   
3. use a computer or other electronic device while in the courtroom or in the jury room
4. use a computer or other electronic device at any time to obtain information about the case
5. visit the scene of the occurrence
   
6. do any investigations or experiments on their own.
   

Interestingly, the instruction does not mention posting by jurors of information about the trial on a web site or social interaction site.

Effective 9-1-09. This amendment corresponds to the amendment of MCR 2.511.

Two other instructions, 2.07 and 2.12, were deleted, since their provisions are now incorporated in this one.

Newly adopted

Amendments that were initially listed here as proposed, and later adopted.

Notices of intent and affidavits in medmal cases - placing time limits on challenges to the sufficiency of these filings

Attire and appearance of parties and witnesses

Use of electronic equipment by jurors

Disqualification of Supreme Court justices

Use of electronic equipment by jurors

Court rule affected - MCR 2.511
Admin no. - 2008-33
Issued - June 30, 2009
Effective - September 1, 2009

The Court has announced an amendment to Rule 2.511, "Impanelling the Jury", which adds requirements as a new subsection (H)(2) for instructions to jurors about their use of electronic equipment:

(2) The court shall instruct the jurors that until their jury service is concluded, they shall not
(a) discuss the case with others, including other jurors, except as otherwise authorized by the court;
(b) read or listen to any news reports about the case;
(c) use a computer, cellular phone, or other electronic device with communication capabilities while in attendance at trial or during deliberation. These devices may be used during breaks or recesses but may not be used to obtain or disclose information prohibited in subsection (d) below;
(d) use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case when they are not in court. As used in this subsection, information about the case includes, but is not limited to, the following:
(i) information about a party, witness, attorney, or court officer;
(ii) news accounts of the case;
(iii) information collected through juror research on any topics raised or testimony offered by any witness;
(iv) information collected through juror research on any other topic the juror might think would be helpful in deciding the case.

Although no one would reasonably disagree with the content of these instructions, it is quizzical that this was adopted as an amendment to the court rule, when there is a separately-constituted committee charged with considering amendments to the Model Civil Jury Instructions.

The Court's staff comment notes that some of these rules do not apply to courts participating in the jury reform pilot project, where jurors are permitted to discuss the case while the proofs are under way. The comment appears to relate to subrule 2(a) only.

Link

Garnishments after judgment

Court rule affected - MCR 3.101
Admin no. - 2008-41
Issued - 5-19-09
Effective - 9-1-09

Makes two amendments to the cited rule.

Adds a new (H)(1)(c), which states:

A bank or other financial institution, as garnishee, shall not withhold exempt funds of the debtor from an account into which only exempt funds are directly deposited and where such funds are clearly identifiable upon deposit as exempt Social Security benefits, Supplemental Security Income benefits, Railroad Retirement benefits, Black Lung benefits, or Veterans Assistance benefits.

The second adds subrule (I)(6):

A bank or other financial institution, as garnishee, shall not withhold exempt funds of the debtor from an account into which only exempt funds are directly deposited and where such funds are clearly identifiable upon deposit as exempt Social Security benefits, Supplemental Security Income benefits, Railroad Retirement benefits, Black Lung benefits, or Veterans Assistance benefits.

This directs banks, etc., not to withhold (turn over to the judgment creditor) funds if:

• the funds are exempt
  
• they are directly deposited, and
  
• they are clearly identifiable upon deposit as exempt funds of the categories listed.

The amendment requires that the account include only exempt funds, and requires that they be "clearly identifiable" as such.

E-filing in Midland Circuit

Admin no. - 2002-37, Admin Order 2009-4
Issued - May 19, 2009

Another e-filing pilot project, this time covering asbestos cases in Midland County.

NOI and Affidavit of merit - medical malpractice cases

Court rule affected - MCR 2.112 and 2.118
Admin no. - 2009-13
Effective - 5-1-10

Another amendment dealing with notices of intent and affidavits in medical malpractice cases - see the previous proposal. This one adds a new subsection (L) to 2.112, requiring that:

• Any challenges to the sufficiency of a notice of intent be filed by a defendant on or before the date of filing his first response (answer or motion)
  
• Any challenges to an affidavit of merit or affidavit of meritorious defense, including challenges to the qualifications of the affiant, be filed within 63 days of the filing of the affidavit. If the court finds the affidavit deficient, it shall allow it to be amended unless it finds that amendment would not be justified.
  

It also adds language to 2.118(D) specifying that an amendment of an affidavit of merit or meritorious defense would relate back to the date of the original filing.

Like the previous proposal, this one is designed to neutralize an entire series of rulings from the Supreme Court which have led to dismissals for failure to comply with the affidavit rules.
Link (to proposal)
Link to order adopting

Attire and appearance by parties and witnesses

Court rule affected - MRE 611
Admin no. - 2007-13
Issued - 8-25-09
Effective - 9-1-09

Added a new subsection (b) and shifted the remaining paragraphs down:

(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.

The staff comment includes:

The proposal was suggested in response to a case in which a district judge was sued for dismissing a plaintiff’s case following the plaintiff’s refusal to remove her hijab during testimony. The plaintiff subsequently sued the district judge in federal court, alleging a violation under 42 USC 1983 (Muhammad v Paruk, 553 F Supp 2d 893 [ED Mich, 2008]). The federal court declined to exercise jurisdiction and dismissed the case, which has since been appealed. In declining to exercise jurisdiction, the federal court noted that state court review “would have avoided many of the federalism concerns” cited by the court, which prompted consideration of this proposal by the Michigan Supreme Court.

Since the proposed rule affects procedure, not evidence, it probably does not belong in the Rules of Evidence.

Link

Disqualification of Supreme Court Justices

Admin no. - 2009-04
Court rule affected - 2.003
Issued - November 25, 2009
Effective - "immediately" [see below]

The issue of when and how a justice of the Supreme Court should be disqualified has been an issue on which Justice Elizabeth Weaver (the Court's longest-serving Republican-nominated justice) has been rather outspoken for the last several years. Until January 2009, her position was in the minority, outvoted by the bloc of four "conservative" justices. Now that there is a new justice on the Court, her position has achieved majority status.

Up to this point, the rule and practice has been that a challenge to the impartiality of a justice is to be decided by that justice alone, without any possibility of further appeal from that point. This year, the Court announced that it was considering new amendments. On Wednesday, November 25, the final amendment was announced.

The modifications to the rule are:

• A new subparagraph (A) is added to provide that the rule now applies to all judges, including justices of the Supreme Court.
  
• A new subparagraph is added as 2.003(C)(1) and, under that, (b), to provide two new substantive grounds for disqualification: either an appearance of impropriety or a serious risk of bias affecting a litigant's due process rights, under the U.S. Supreme Court's recent Caperton decision.
  
• A new subparagraph (b) is added under 2.003(B)(2), to provide that campaign speech is not a ground for disqualification, absent a demonstration of actual or apparent bias or prejudice.
  
• A new subparagraph is added as 2.003(D)(3)(b), to provide that any motion for disqualification of a Supreme Court justice (after a denial by the justice) is to be decided by the Court, with reasons given for its ruling.
• Subparagraph 2.003(E) has been rewritten to, in essence, permit the parties to waive disqualification even when there may be bias or prejudice.
  

Again, there are a number of concurring and dissenting opinions included. The PDF file comes to 58 pages.

The rancor on the Court continues. The order is stated to be immediately effective. Justice Weaver's written submission informs the public that the amendment was approved on November 5, to be given "immediate effect", but that a majority of the justices determined that the issuance of the order should be delayed until November 25, to give the justices time to submit their written comments to accompany the order. In the meantime, on November 18, Justices Corrigan and Young submitted their responses denying disqualification motions in two pending cases, overtly stating that these denials were being entered under the "current and traditional" rule, under which a sitting justice would decide a disqualification motion on his or her own, without any input from the other justices.

These events, Justice Weaver states, "do not contribute to public confidence" in the Court and its work.

The dissenting justices offer several arguments in support of their position that the amendment violates both the U.S. and the Michigan Constitutions. They note that Chief Justice Marilyn Kelly has suggested that the rule should go further, and provide for the replacement of a disqualified justice to participate in the case, and they point out that there is no constitutional authority for such a practice.

Justice Stephen Markman, writing separately in dissent, stated that this amendment would usher in a new era of strategic disqualification motions and gamemanship among litigants.

Justice Young's dissent asserts that a justice who is the subject of a disqualification motion has a due process right to be heard on the issue, with the assistance of counsel, and in some cases a full evidentiary hearing. This is one of the most bizarre ideas that has come from a Michigan Supreme Court justice in recent years.

All three of the dissenting justices predict that the amendment will cause serious damage to civility on the Court. Civility, of course, is a virtue that appears to have been abandoned by several of the justices in recent years.

• Link to final order and justices' submissions, dated 11-25-09
  
• Amendment dated 12-3-09 (correcting a clerical error)
  
• Additional statement by Justice Weaver, issued on 12-4-09
  

We have retained a link to the original proposal, which was accompanied by lengthy comments from Justices Weaver, Corrigan, and Young.

Proposal: Link

Additional links:

• Caperton v. A.T. Massey Coal Company - U.S. Supreme Court decision, June 2009
• Amicus Brief - filed in the Caperton case on behalf of Justices Corrigan and Young and eight other current or former state Supreme Court justices
  
• Justice Weaver's independent web site
• Unfettered Debate Takes Unflattering Turn in Michigan Supreme Court - New York Times, January 2007
• Campaign donations can't force recusals - Milwaukee Sentinel-Journal, October 2009, reporting on new Caperton-inspired rule adopted in Wisconsin
  

Use of electronic equipment in courtrooms

Court rule affected - MCR 8.115
Admin no. - 2008-35
Entered - August 25, 2009
Effective - September 1, 2009

A new subparagraph is added:

(C) Establishment of a Policy Regarding Portable Electronic Communication Devices.
(1) A facility that contains a courtroom may determine use of electronic equipment in nonjudicial areas of the facility.
(2) The chief judge may establish a policy regarding the use of cell phones or other portable electronic communication devices within the court, except that no photographs may be taken of any jurors or witnesses, and no photographs may be taken inside any courtroom without permission of the court. The policy regarding the use of cell phones or other portable electronic communication devices shall be posted in a conspicuous location outside and inside each courtroom. Failure to comply with this section or with the policy established by the chief judge may result in a fine, including confiscation of the device, incarceration, or both for contempt of court.

Link

Electronic Discovery

Court rules affected - 2.302, 2.310, 2.313, 2.401, 2.506
Adm. no. - 2007-24
Issued - 12-16-08
Effective - 1-1-09

The previously proposed amendments were adopted.

1. New subsections (5) to (7) have been added to MCR 2.302, governing the Scope of Discovery:

(5) Electronically Stored Information. A party has the same obligation to preserve electronically stored information as it does for all other types of information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

(6) Limitation of Discovery of Electronic Materials. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of MCR 2.302(C). The court may specify conditions for the discovery.

(7) Information Inadvertently Produced. If information that is subject to a claim of privilege or of protection as trial-preparation material is produced in discovery, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.

2. Rule 2.310(C), governing Requests for Production of Documents
A second clause was added to the language of subsection (1):

The request must specify a reasonable time, place, and manner of making the inspection and performing the related acts, as well as the form or forms in which electronically stored information is to be produced, subject to objection.

A sentence was added to subsection (2):

If the request does not specify the form or forms in which electronically stored information is to be produced, the party responding to the request must produce the information in a form or forms in which the party ordinarily maintains it, or in a form or forms that is or are reasonably usable. A party producing electronically stored information need only produce the same information in one form.

3. A new subsection (E) was added to Rule 2.313, governing Failure to Provide or to Permit Discovery; Sanctions:

(E) Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

4. Rule 2.401(B)(1), governing early scheduling conferences, now has a new subsection (d):

(1) Early Scheduling Conference. The court may direct that an early scheduling conference be held. In addition to those considerations enumerated in subrule (C)(1), during this conference the court should consider. . .
(d) discovery, preservation, and claims of privilege of electronically stored information.

And (B)(2), governing Scheduling Orders, now has a newly inserted subsection (c):

(c) The scheduling order also may include provisions concerning discovery of electronically stored information, any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after production, preserving discoverable information, and the form in which electronically stored information shall be produced.

5. Rule 2.506(A), governing subpoenas, has new subsections (2) and (3):

(2) A subpoena may specify the form or forms in which electronically stored information is to be produced, subject to objection. If the subpoena does not so specify, the person responding to the subpoena must produce the information in a form or forms in which the person ordinarily maintains it, or in a form or forms that are reasonably usable. A person producing electronically stored information need only produce the same information in one form.
(3) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. In a hearing or submission under subrule (H), the person responding to the subpoena must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of MCR 2.302(C). The court may specify conditions for such discovery.

The Staff Comment includes the following:

The provisions of the proposal at MCR 2.302(B)(6) and MCR 2.506(A)(3) allow the court to shift the cost of discovery to the requesting party if discovery is requested from sources that are not reasonably accessible, and prohibit sanctions if information is lost or destroyed as a result of a good-faith, routine record destruction policy or “litigation hold” procedures. The “safe harbor” provision provided in MCR 2.302(B)(5) and in MCR 2.313 applies when information is lost or destroyed under a routine electronic information system, if the operation of the system was performed in good faith. Good faith may be shown by a party’s actions to attempt to preserve information as part of a “litigation hold” that would otherwise have been lost or destroyed under an electronic information system.

These amendments track many of the provisions added in December 2006 to the Federal Rules of Civil Procedure.

Link

Temporarily-admitted lawyers

Admin No. - 2004-08
Rules - 8.126, 9.108, State Bar Rule 15
Effective - September 1, 2008

Added and amended provisions for temporary admission of attorneys admitted elsewhere (pro hac vice), payment of bar dues and fees, and disciplinary action.

A new Rule 8.126 was added:

Rule 8.126 Temporary Admission to the Bar

(A) Temporary Admission. Any person who is licensed to practice law in another state or territory, or in the District of Columbia, of the United States of America, or in any foreign country, and who is not disbarred or suspended in any jurisdiction, and who is eligible to practice in at least one jurisdiction, may be permitted to appear and practice in a specific case in a court or before an administrative tribunal or agency in this state when associated with and on motion of an active member of the State Bar of Michigan who appears of record in the case. An out-of-state attorney may appear and practice under this rule in no more than five cases in a 365-day period. Permission to appear and practice is within the discretion of the court or administrative tribunal or agency, and may be revoked at any time for misconduct. For purposes of this rule, an out-of-state attorney is one who is licensed to practice law in another state or territory, or in the District of Columbia, of the United States of America, or in a foreign country.

(1) Procedure.

(a) Motion. An attorney seeking temporary admission must be associated with a Michigan attorney. The Michigan attorney with whom the out-of-state attorney is associated shall file with the court or administrative tribunal or agency an appearance and a motion that seeks permission for the temporary admission of the out-of-state attorney. The motion shall be supported by an affidavit of the out-of-state attorney seeking temporary admission, which affidavit shall verify

(i) the jurisdictions in which the attorney is or has been licensed or has sought licensure;

(ii) that the attorney is not disbarred, or suspended in any jurisdiction, and is not the subject of any pending disciplinary action, and that the attorney is licensed and is in good standing in all jurisdictions where licensed; and

(iii) that he or she is familiar with the Michigan Rules of Professional Conduct, Michigan Court Rules, and the Michigan Rules of Evidence.

The out-of-state attorney must attach to the affidavit copies of any disciplinary dispositions. The motion shall include an attestation of the Michigan attorney that the attorney has read the out-of-state attorney’s affidavit, has made a reasonable inquiry concerning the averments made therein, believes the out-of-state attorney’s representations are true, and agrees to ensure that the procedures of this rule are followed. The motion shall also include the addresses of both attorneys.

(b) The Michigan attorney shall send a copy of the motion and supporting affidavit to the Attorney Grievance Commission. Within seven days after receipt of the copy of the motion, the Attorney Grievance Commission must notify the court or administrative tribunal or agency and both attorneys whether the out-of-state attorney has been granted permission to appear temporarily in Michigan within the past 365 days, and, if so, the number of such appearances. The notification shall also indicate whether a fee is due if the court or administrative tribunal or agency grants permission to appear. The court or administrative tribunal or agency shall not enter an order granting permission to appear in a case until the notification is received from the Attorney Grievance Commission.

(c) Order. Following notification by the Attorney Grievance Commission, if the out-of-state attorney has been granted permission to appear temporarily in fewer than 5 cases within the past 365 days, the court or administrative tribunal or agency may enter an order granting permission to the out-of-state attorney to appear temporarily in a case. If an order granting permission is entered, the court shall send a copy of the order to the Michigan attorney and the out-of-state attorney. The Michigan attorney in turn shall send a copy of the order to the Attorney Grievance Commission.

(d) Fee. If a fee is due, the order shall state that the appearance by the out-of-state attorney is effective on the date the attorney pays a fee equal to the discipline and client-protection portions of a bar member’s annual dues. If a fee is not due, the order shall indicate the effective date of the appearance. The attorney is required to pay the fee only once in any period between October 1 and September 30. The discipline portion of the fee shall be paid to the State Bar of Michigan for allocation to the attorney discipline system, and the client-protection portion shall be paid to the State Bar of Michigan for allocation to the Client Protection Fund.

(e) By seeking permission to appear under this rule, an out-of-state attorney consents to the jurisdiction of Michigan’s attorney disciplinary system.

The highlights of this new rule:

• A lawyer may be admitted under this rule in no more than five cases in any 365-day period
  
• The sponsoring lawyer and the lawyer to be admitted must make a showing of specified facts by affidavit, including a statement that the lawyer to be admitted is familiar with the court rules, evidence rules, and professional responsibility rules in Michigan
  
• The Attorney Grievance Commission must review and approve any admission before the trial court may enter an order granting temporary admission
  
• Bar fees as specified must be paid, but only once per year
• Admission under this rule includes consent to the jurisdiction of Michigan's attorney disciplinary system.
  

Rule 9.108 was amended to accommodate this change, and to require the Attorney Grievance Commission to keep a list of attorneys temporarily admitted.

Rule 15 of the Rules Concerning the State Bar of Michigan, entitled "Admission to the Bar", was amended to add a requirement that the State Bar notify the Attorney Grievance Commission when the required fees have been paid.

The Staff Comment states:

The Court plans to review these rules again within two years of their effective dates in light of the information gathered by the Attorney Grievance Commission.

Link

MCJI: Damages in third-party auto cases

Updated MCJI 67.17 to add provisions distinguishing uninsured from insured defendants. Effective September 2008.

Link

MCJI: Public Accommodations and Services

Added a new chapter containing a series of instructions governing claims under Michigan's Elliott-Larsen Civil Rights Act - MCJI 108.01 to 108.13. Adopted December 2008.

Link

MCJI: Comparative Negligence in Product Liability Cases

The Committee on Model Civil Jury Instructions, which has been delegated the responsibility to suggest and adopt amendments to the instructions, proposes to delete MCJI 25.41, governing the negligence of the plaintiff in product liability cases, and amend MCJI 25.45, governing the fault of non-parties, to add those provisions to that instruction.

The amendment, which is ostensibly to combine the instructions regarding allocation of fault, would also

• Add language to the non-party instruction that informs the jury that its allocation of fault to a non-party will reduce the verdict against the defendant, and
• remove all reference to breach of warranty claims.

The removal of breach of warranty references may do more harm than good. It may open the door to an argument, in the "fog of trial", that it should apply only in product liability cases predicated on negligence. The current explicit reference to breach of warranty claims would obviate that concern.

Link

About this site

This weblog has been created to provide information on proposed and adopted amendments to the Michigan Court Rules of 1985, the Michigan Rules of Evidence, and other court-enacted rules. But we do not try to cover all updates. The entries here are limited to those items that would be of interest to civil trial lawyers.

This page is where the Michigan Supreme Court posts these items.

For the last several years, we have been keeping track of these developments, and the updates have been published in the Michigan Defense Quarterly, a publication of the Michigan Defense Trial Counsel. We have now set up this site to provide this information more promptly than print publication would allow, and to provide some added flexibility to the process.

One improvement: We are adding occasional items on new updates to the Model Civil Jury Instructions.

M. Sean Fosmire
Garan Lucow Miller, P.C.
Marquette, Michigan

Affidavits of merit - medical malpractice cases

Court rule affected - MCR 2.112(l)
Admin no. - 2006-43, 2007-07
Issued - December 9, 2008
Comments open to - April 1, 2009

Would add a subsection (1) under subsection (l) that reads:

Sufficiency of Affidavit. An affidavit of merit filed under MCL 600.2912d is presumed to be valid and tolls the period of limitations. However, if the court determines upon a party’s challenge to the sufficiency of the affidavit that the affidavit is deficient, the court shall dismiss the action without prejudice. Following dismissal, the plaintiff may file a complaint accompanied by a conforming affidavit of merit within the time that remains in the period of limitations.

Note: This would reconcile the series of sometimes conflicting decisions on this issue in favor of an automatic tolling rule, conforming to the decision in Kirkaldy v Rim, 478 Mich 581 (2007). This would overturn the decisions in cases such as Roberts v. Mecosta County Memorial Hospital, 470 Mich 679 (2004), which have held that a nonconforming affidavit does not toll the statute of limitations.

Note that this proposal was made in December 2008, before Justice Taylor was replaced by Justice Hathaway.

Link

Update: A comment by a Vice-President of ProAssurance, an active professional liability carrier in Michigan, makes the point that the proposal is not limited to procedural matters and that it impermissibly attempts to change substantive law.

Update: As of April 2010, this item is no longer on the Supreme Court's web site, indicating that it has been rejected.

Case Evaluation and Mediation

Court rules affected - MCR 2.403, 2.404, 2.410, 2.411 and 3.216
Admin no. - 2005-05, 2006-20
Proposed - November 25, 2008
Adopted - 4-5-11
Effective - 9-1-11

Note: This item to be updated in the near future

This proposed amendment affects the rules governing the case evaluation and the mediation process. A significant number of amendments are proposed. These proposals are wide-ranging; a few of them are significant and should be carefully examined by any Michigan trial lawyer. See, in particular, the items marked 5, 7, 8, and 10 below.

1. Exception of cases - For cases in which case evaluation is ordinarily required, the amendment removes the language regarding the power of the court to exempt a case from the case evaluation process from the primary subsection, and moves it to a new subsection (2). The current version allows the trial court to exempt a case from case evaluation "on motion for good cause shown". The proposed amendment would allow (but not require) the court to exempt "all or part" of a case

• on motion for good cause shown
  
• on stipulation of the parties for good cause shown
  
• by the court with the consent of the parties
  

The third of these seems to anticipate a sua sponte suggestion by the court to exempt "all or part" of a case, but this would require the consent of all parties.

The provisions of subsection (M), governing the effect of acceptance or rejection, are to be amended to accommodate these changes.

Note: The suggestion that part of a case could be exempted and part submitted to case evaluation is new.

2. The 91-day time period is removed. Currently, the trial court (or the chief judge) may designate a case as one for which case evaluation is proper after 91 days have elapsed. The proposal would remove that time limit.

Note: This modification will have little practical effect on most cases.

3. Fees for members of the panel are increased to $50 (except for judges) and the automatic 14-day time for submission of fees would be removed and replaced by a provision that would authorize the trial court to determine when payment should be made. Fees may be paid as the court directs.

Notes: Any increase in case evaluation fees is welcome. It would be helpful for trial courts to include a provision that the fees are to be paid a month before the case evaluation date.

4. The section permitting the plaintiff to elect to treat injuries to multiple members of a single family as one claim, with one fee paid, is to be removed.

Note: This would require multiple fees and multiple evaluations for all cases involving such claims.

5. Subsection 5, to be renumbered as subsection 4, governs the refunding of case evaluation fees. The rule would be tightened to provide that

• If the hearing is adjourned with a new date, the order for the adjournment may provide that the fees already paid will apply to the new hearing
  
• If the motion is made and granted within 14 days of the date set, the fees should not be refunded, unless the court otherwise orders "for good cause".
  

6. Subsection (I)(1), regarding filing of summaries, would be amended.

Note: This is a simple revision of rule language, with little to no substantive change to be affected.

7. Subsection (I)(2) would be amended to provide for the $150 penalty for the filing of each supplement to the original filing. The current rule provides for such a penalty only for failure to file any summary.

Note: This could be an onerous imposition in many factual situations. When a supplemental filing is necessary due to the late receipt of discovery, including deposition transcripts, a party who wishes to supplement his summary should not be penalized.

8. Summaries would be limited to 20 pages (excluding exhibits), and typeface requirement similar to those governing appellate briefs would be imposed.

Note: Unlike court filings, it is hard to see why a page limit should be imposed on case evaluation filings.

9. The provisions of subsection (M) would be modified to ensure that an acceptance in a first-party no-fault case would not affect any benefits accruing after the date of the case evaluation hearing. There are two alternative proposals in this area. One would cover all cases, while the other would be limited to claims for first-party PIP benefits.

10. The trial court may order a second case evaluation, or other ADR procedure, if the first results in a non-unanimous evaluation.

Note: The proposal is silent as to how this would affect interim offers of judgment.

11. Rule 2.411 would be amended to prohibit the trial court from recommending or influencing a party's selection of a mediator, unless stipulated by all parties on the record.

12. The Rule would also be amended to remove the reference to an hourly rate.

Note: This will not affect very many facilitated mediations. It will open the door to allow some mediators to charge a flat fee.

13. The Rule would be amended to allow a Community Dispute Resolution program to appear on a roster of mediators, if certain requirements are met.

14. The application provisions would permit an applicant to attach a resume or biographical information.

There are also proposed changes to Rule 3.216, involving mediation of domestic relations cases, that will be of interest to those who practice in that area.

Notes:
The staff comment says that these proposals are based on changes recommended by the Dispute Resolution Rules Committee convened by the State Court Administrative Office. The committee’s report can be found at http://courts.michigan.gov/scao/resources/publications/reports/DRRCReport2008.pdf.

Links - to full text | to comments

Stay of Proceedings to Enforce Judgment

Court rule affected - MCR 2.614
Adm no. - 2008-24
Issued - 1-20-09
Effective - 5-1-09

• Some minor rewording, of little significance


• Authorizes the trial court to extend the period during which a motion for new trial, rehearing, reconsideration, or relief from judgment may be filed beyond the standard 21-day limit, on good cause shown, if the extension order is entered within the 21 day period.

Link

Notes

The staff comment says that this conforms with amendments to other court rules.

Appeals to the Michigan Supreme Court

Court rules affected - MCR 7.302, 7.314, 7.316
Adm no. - 2007-42
Issued - 1-20-09
Effective - 5-1-09

Adds a new subsection (F) to MCR 7.302:

(F) If, on its own initiative or on a party’s motion, the court concludes that a brief does not substantially comply with the requirements of this rule, it may order the party who filed the brief to file a supplemental brief within a specified time correcting the deficiencies, or it may strike the nonconforming brief.

Adds a new subsection (C) to MCR 7.314:

(C) The court may dismiss an appeal, application, or an original proceeding for lack of jurisdiction or failure of a party to pursue the case in substantial conformity with the rules.

Adds a new subsection (9) to MCR 7.316(A):

(A) Relief Obtainable. The Supreme Court may, at any time, in addition to its general powers:

* * *

(9) dismiss an appeal, application, or an original proceeding for lack of jurisdiction or failure of a party to pursue the case in substantial conformity with the rules.

Link

Notice of Non-Party Fault, Case Evaluation

Court rules affected - MCR 2.112(k), 2.403
Adm no. - 2007-41
Issued - 1-20-09
Effective - 5-1-09

Each rule is modified to add language to specify that it applies to claims "based on tort or another legal theory" for personal injury, property damage, or wrongful death.

Notes

The staff comment says that the changes are made to "more closely parallel the statutory provisions" of MCL 600.2957 and 600.6304.

The change is not really substantive.

Jurors

Court rule affected - MCR 2.510
Adm no. - 2007-21
Issued - 5-28-08
Effective - 9-10-08

Adds a new subsection (E), which reads:

(E) Special Provision Pursuant to MCL 600.1324. If a city located in more than one county is entirely within a single district of the district court, jurors shall be selected for court attendance at that district from a list that includes the names and addresses of jurors from the entire city, regardless of the county where the juror resides or the county where the cause of action arose.

Link

Notes

This rule is enacted pursuant to MCL 600.1324(3), which provides:

(3) If a city located in more than 1 county is placed entirely within a single district of the district court pursuant to chapter 81, the supreme court by rule shall specify the procedure for compiling the second jury list for that district court district so as to include names and addresses of residents from the parts of the counties which comprise that district.

This amendment will apply only in very limited situations in the district court.

Depositions

Court rule affected - MCR 2.306
Adm no. - 2007-09
Issued - 5-30-08
Effective - 9-1-08

1. Adds titles to the subsections

2. Adds the following new subsections to 2.306 (C)(4), now entitled "Objections During Deposition":

(b) An objection during a deposition must be stated concisely in a civil and nonsuggestive manner.
(c) Objections are limited to
(i) objections that would be waived under MCR 2.308(C)(2) or (3), and
(ii) those necessary to preserve a privilege or other legal protection or to enforce a limitation ordered by the court.

3. Adds a new subsection (C)(5):

(5) Conferring with Deponent.
(a) A person may instruct a deponent not to answer only when necessary to preserve a privilege or other legal protection, to enforce a limitation ordered by the court, or to present a motion under MCR 2.306(D)(1).
(b) A deponent may not confer with another person while a question is pending, except to confer with counsel to decide whether to assert a privilege or other legal protection.

4. Adds a new subsection under (D):

(2) Sanctions. On motion, the court may impose an appropriate sanction—including the reasonable expenses and attorney fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent or otherwise violates this rule.

5. Renumbers other subsections

Links

Full text | Amendment

Notes

These new provisions follow similar limitations that have been adopted by local court rule in a number of Federal courts. They may change the behavior of some practitioners.

The amendment, issued on June 2, modified the numbering system only.