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

Termination of attorney-client relationship

Court rule affected - 2.117
Admin no. - 2007-18
Issued - 11-23-10
Declined to adopt, file closed - April 2010

Would add language to (C)(1) that would allow a notice by an attorney to his client that the attorney is terminating the relationship to be self-executing. An order of the presiding court would not be required.

The added language would likely also affect the accrual date, based on last date of service, in legal malpractice cases.

Note: the Staff Comment disregards this significant change in the law.

[additions in bold]

(C) Duration of Appearance by Attorney.

(1) Unless otherwise stated or ordered by the court, and except as otherwise provided by these rules, an attorney's appearance applies only in the court in which it is made, or to which the action is transferred, until a final judgment is entered disposing of all claims by or against the party whom the attorney represents and the time for appeal of right has passed, or until the attorney notifies the attorney’s client that the attorney is terminating representation of the client. Follow-up or ministerial acts performed by the attorney with regard to the client’s file following notice of termination do not extend the attorney-client relationship. The appearance applies in an appeal taken before entry of final judgment by the trial court.

(2) An attorney who has entered an appearance may withdraw from the action or be substituted for only on order of the court, or as allowed in subsection (C)(1).

Staff Comment: The proposed amendment would revise MCR 2.117 to provide that an attorney-client relationship continues until a final judgment is reached and the period allowed to appeal by right has expired unless the attorney discontinued the relationship before that time. Also the proposal would clarify that follow-up or ministerial actions performed by the attorney following notice of termination do not extend the attorney-client relationship.

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

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

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

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

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

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.