With the many orders by the Governor and Supreme Court focusing on the shut down and civil and criminal procedures associated with COVID-19, what may have been overlooked is the proposed amendment to the case evaluation rule, MCR 2.403.
This proposed rule was submitted pursuant to an order of the Michigan Supreme Court on March 19, 2020 and is ADM File No. 2020-06. There are proposed amendments to Michigan Court Rules 2.403, 2.404 and 2.405.
The main takeaways are:
- Case Evaluation Sanctions have been entirely eliminated under this proposal.
- Case evaluation in its traditional form is a “default,” because it will not occur if the parties stipulate to an ADR process. The ADR process must be defined, must be completed no later than 60 days after the close of discovery and the plan is to be submitted within 120 days of the first responsive pleading. The specific facilitator (if facilitation is the ADR alternative to case evaluation) does not have to be identified.
- The ADR process can include something other than facilitation such as arbitration.
- If the parties do not stipulate to an ADR process/plan the judge may assign the case for case evaluation.
- When case evaluation does occur, summaries must be submitted within 7 days of the hearing rather than 14 days. Filing the summaries less than 24 hours before the hearing is an additional $150.00 penalty on top of the $150.00 penalty for filing less than 7 days before the hearing. This proposed change reflects real world practicalities, as case evaluators never reviewed the summaries more than a week ahead of time, and seeks to discourage gamesmanship by filing eleventh hour summaries after counsel reviews the opposing side’s summary.
- Under 2.403 standards for selecting a neutral case evaluator are clarified, with reference to the person’s background serving as a neutral ADR provider.
- The offer of judgment rule has been amended to identify the “starting date” for costs and sanctions as the date of the rejection of the prevailing party’s last offer or counteroffer. The rule identifies exceptions to awarding costs which includes cases involving offers that are token or de minimis in the context of the case or cases of first impression. This is designed to prevent one dollar offers by defendants in a effort to trigger risks for sanctions.
These proposed changes will have these implications:
- It will force litigants to reconsider the use of offers of judgment with counteroffers. This practice tool has been dormant for many years as MCR 2.405 had no teeth where a case had been subject to a unanimous case evaluation. The proposed rule specifically eliminates the language that states offer of judgment sanctions are not applicable to unanimous case evaluation awards.
- There will be ineffective case evaluations that happen because all parties do not wish to pay for a facilitator or other ADR.
- A case evaluation that has no sanctions implications may me nothing more than an advisory exercise.
There will be public comment allowed before any changes are formally adopted.
Please contact a Kerr Russell attorney for questions or information regarding case evaluation.
Daniel G. Beyer is a seasoned trial attorney with nearly 40 years of experience. He focuses his practice on personal injury matters related to medical malpractice, motor vehicle claims and general negligence; lender’s and owner’s title claims; insurance coverage; physician licensing and administrative complaints; commercial matters and consumer claims; and general liability.
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