Proposed changes - jury instructions

The Committee is considering modifications to the Model Civil Jury Instructions as follows. All proposals solicit comments by May 31, 2011. All links are to PDF files.

Product liability - Implied Warranty (two instructions - 25.21 and .22)

Medical Malpractice - the proposal is to delete 30.20, loss of a chance, in its entirety

Auto cases - 36.11, serious impairment - amendments to conform to McCormick

Trust contests - a new Chapter 179

Attorneys' fees in no-fault cases

Court rule affected - 8.121
Admin no. - 2007-17
Issued - 10-26-10

Would add claims for no-fault benefits to the rule governing contingent fees.

Several groups have posted comments in opposition on the grounds that the amendment might prohibit the award of attorneys fees based on an hourly rate. They argue that the court should have the discretion to award an attorney fee that exceeds 1/3 of the amount recovered, as a penalty for unreasonable denial or delay in payment.

Link

Lawyer advertising

Date: 7-13-2010

Adm. no.: 2002-24

Rule: MRPC 7.3

Comments closed: 11-1-10

Would add a new subparagraph (c):

Every written, recorded, or electronic communication from a lawyer that seeks professional employment from a prospective client shall include the words “Advertising Material” prominently featured on the outside envelope, if any, and at the beginning and ending of any written, recorded, or electronic communication, unless the lawyer has a family or prior professional relationship with the recipient. If a written communication is in the form of a self-mailing brochure, pamphlet, or postcard, the words “Advertising Material” shall appear on the address panel of the brochure, pamphlet, or postcard.

Order

AGC provisions

Date: 11-1-2010

Adm. no.: 2006-38

Comments due: 3-1-2011

Rules: 8.110, 8.120, 9.110 et seq.

A 71-page order, incorporating for some sections two alternative proposals, to amend the rules relating to professional disciplinary proceedings. In addition to the proposal, the Court has made available a memorandum jointly prepared by the Attorney Grievance Commission and the State Bar of Michigan, and a chart depicting the differences between the two different proposals.

Order - 71 pages

Memo

Chart - another 121 pages

Inspection and acceptance of filings by court clerk

Court rule affected - MCR 8.119 and several others

Admin no. - 2005-32

Issued - 4-27-10

Comments open to - 8-1-10

Several rule changes are proposed to require court personnel to review filings to ensure that they meet the requirements of court rules. The rules affected are noted in the quoted language below.

The other changes are all geared to the addition of the following language to Rule 8.119(C)(1) and the addition of a new (D):

(C)(1) Minimum Filing Requirements.

Before accepting a document for filing, the clerk of the court shall determine that the document complies with the following minimum filing requirements:

(a) standards prescribed by MCR 1.109,

(b) legibility and language as prescribed by MCR 2.113(B) and MCR 5.113(A),

(c) captioning prescribed by MCR 2.113(C)(1) and MCR 5.113(A)(1),

(d) signature prescribed by MCR 2.114(C) and MCR 5.114(A),

(e) the filing fee is paid at the time of filing, unless waived or suspended by court order,

(f) documents are filed in the court of proper jurisdiction, and

(g) if applicable, proof of service is complete and verified in accordance with these court rules.

(2) Return of Documents. If the document does not comply with the minimum filing requirements in subrule (1), the clerk of the court shall reject the document for filing and promptly return it to the filing party, along with the filing fee, if any. The document shall be accompanied by a notice, substantially in the form approved by the state court administrator, that states the reason for the return and, if applicable, the action the filing party may take to refile the document. The notice shall include the name and telephone number of the clerk who is returning the document and the date it is mailed. The court shall maintain a copy of each notice prepared under this subrule.

(3) Filing Date. The clerk of the court shall endorse on the first page of every document the date on which it is received. The date of receipt is the filing date. If a document contains more than one date indicating receipt by the court, the latest date is the filing date.

(4) Submission to Judge. If the clerk of the court has other concerns with the accuracy of a document, it shall be submitted to the judge assigned to the case, the chief judge, or their designee judge for authorization to reject the pleading for filing and return of the document pursuant to subrule (2).

(D) Documents Accepted for Filing; Clerk of the Court Review. The clerk of the court shall review documents that have been accepted for filing and take action in accordance with this subrule.

(1) Review. The clerk of the court must determine that:

(a) the case number, petition number, and case caption on the document are accurate, and if not, the clerk may either correct any errors in that information when the correct information is adequately verified, or take action as required by subrule (2).

(b) any required notice to appear is accurate, and if not, the clerk must take action as required by subrule (2).

(c) the time for filing a document has been met, and if not, the clerk must take action as required by subrule (2).

The clerk of the court may not correct any other perceived errors.

(2) Notification. The clerk shall promptly notify parties of the corrections made or of any action that must be taken by the parties to correct the errors. If the clerk returns a document for corrective action by a party, the document shall be accompanied by a notice substantially in the form approved by the state court administrator that states the reason for the return. The notice shall include the name and telephone number of the clerk who is returning the document and the date it is mailed. The court shall maintain a copy of each notice prepared under this subrule.

(3) If the clerk of the court determines, after review, that an affidavit, default, and default judgment form does not comply with MCR 2.603(B)(2) or that a request for garnishment form does not comply with MCR 3.101(D)(4), the clerk shall not issue a default judgment or writ of garnishment, shall retain the filing fee, and shall either:

(a) return the form to the filing party, accompanied by a notice substantially in the form approved by the state court administrator that states the reason for the return. The notice shall inform the party of the right to file a request for judicial review with no additional fee and that a new form may be filed along with the required filing fee. The notice shall include the name and telephone number of the clerk who is returning the document and the date it is mailed. The court shall maintain a copy of each notice prepared under this subrule.

(b) submit the document to the judge assigned to the case, the chief judge, or their designee judge for review.

(4) If a party files a request for judicial review pursuant to subrule(3)(a) or a clerk submits a document for review pursuant to subrule (3)(b), upon review, the judge shall either allow the issuance of the default judgment or writ of garnishment or enter a written order stating the reasons for denying the issuance of a default judgment or writ of garnishment.

The staff comment states that this proposal is based on the recommendations of a workgroup.

We predict that this proposal will meet with strong protests from court clerks, who would have to take on major new responsibilities in order to meet its requirements.

Update Oct 2010: awaiting conference consideration

Filing time calculations

Court rule affected - MCR 1.108

Admin no. - 2009-30

Issued - 5-18-10

Comments open to - 9-1-10

A minor change to the rule, after reference to weekends, from "holiday" to "day", to account for other days on which courts may be closed. This may well be in anticipation of court furloughs.

M Civ J I 15.01 - Proximate Cause

The Committee proposes to amend this instruction, which defines "proximate cause".

The proposed new wording, with added language in bold:

When I use the words “proximate cause” I mean first, that the negligent conduct must have been a cause of plaintiff’s injury, and second, that the plaintiff’s injury must have been of a type that is a natural and probable result of the negligent conduct.

The explanatory note:

The Committee proposes to amend the definition of proximate cause because, as presently worded, the second component of the definition can be understood by a jury as meaning that the specific injury suffered must be a natural and probable result of the negligent conduct, whereas all that is required is that the injury fall within the category of injury that is a natural and probable result of the negligent conduct. To convey the distinction the committee has added the words “of a type that is.”

Link

Federal: reining in juries during trial

The Committee On Court Administration And Case Management of the Judicial Conference Of The United States has issued a new recommended jury instruction on "Juror Use Of Electronic Communication Technologies".

The recommended instruction before proofs begin:

"You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.

"Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube."

And at the close of proofs, just before deliberations:

"During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict."

Rules of professional conduct

Adm no. - 2009-06
Issued - 11-24-09
Covers - several rules under MRPC

A continuation of a previous series of proposals from 2004. Changes, some with alternatives, are proposed to rules dealing with fees, conflict of interest, service as mediator or arbitrator, truthfulness of statements made to the court, public statements during proceedings, and practice by lawyers admitted in other states. It includes a new proposal to allow disciplinary action against a Michigan-licensed lawyer for actions in other states.

Link to proposal

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.

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

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.