Civil Litigation Blog
Battle Creek - Civil Litigation Law Blog

Can a Witness be Stopped from Testifying?

Posted December 5, 2018

MCR 2.401(I)(2) allows a trial court to prohibit testimony from witnesses not identified in a pretrial order or required witness list. Trial courts should not be reluctant to allow unlisted witnesses to testify where justice so requires, particularly with regard to rebuttal witnesses. The court may impose reasonable conditions on allowing the testimony of an undisclosed witness if there is no prejudice to the opposing party. The Court of Appeals concluded that the trial court employed reasonable conditions in allowing the prosecutor’s undisclosed rebuttal witness to testify by giving the defendants an opportunity to interview the undisclosed witness and to secure their own experts. The Court also noted that a reasonable condition will also normally include a reasonable time frame.

In deciding whether the court will sanction the party by precluding a witness from testifying, the court should consider the following factors on the record:

  • whether the violation was willful or accidental;
  • the party’s history of refusing to comply with discovery requests (or refusal to disclose witnesses) would the prejudice to the defendants;
  • actual notice to the defendant of the witnesses and the length of time prior to trial that the defendant received such actual notice;
  • whether there exists a history of plaintiff’s engaging in deliberate delay;
  • the degree of compliance by the plaintiff with other provisions of the court’s order;
  • an attempt by the plaintiff to timely cure the defect; and
  • whether a lesser sanction would better serve the interests of justice. This list should not be considered exhaustive

Duray Development, LLC v Perrin, 288 Mich App 143, 165 (2010)

 

What is a Default Judgment?

Posted November 16, 2018

A party may be found in default for either failing to plead or answer, or for improper conduct (in which case, default is used as a sanction). In a recent civil case the court stated, "These two circumstances under which a default may be entered are fundamentally different. Failing to plead or answer bespeaks an implied concession that the party is liable, or perhaps an indifference to the outcome of the litigation. In contrast, a default entered as a sanction is a means to penalize a party for failure to comply with the trial court’s directives and . . . should be entered only in the most egregious circumstances.”

The purpose of the default procedure is to keep the docketscurrent, to expedite the disposal of causes so as to prevent a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his [or her] claim. MCR 2.603(A)(1) governs entry of default: If a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, and that fact is made to appear by affidavit or otherwise, the clerk must enter the default of that party. MCR 2.603(A)(1) has been interpreted to mean that “a party must not be defaulted if the party pleads or, as an alternative to filing a responsive pleading, otherwise defends the action.

Kalamazoo Oil Co v Boerman, 242 Mich App 75, 87, (2000).

 

Involuntary Dismissal as a Sanction

Posted: October 25, 2018

When a party fails to comply with the court rules or a court order, MCR 2.504(B)(1) authorizes the court, on its own initiative or on the opposing party’s motion, to enter a default judgment against the noncomplying party or to dismiss the noncomplying party’s claim or action.

Dismissal is a drastic sanction. In deciding whether to dismiss the case, the court must evaluate all available options on the record and conclude that the sanction of dismissal is just and proper the Court referred to a nonexhaustive list of factors to consider when determining whether dismissal is an appropriate sanction:

  • whether the violation was willful or accidental;
  • the party’s history of refusing to comply with discovery requests (or refusal to disclose witnesses);
  • the prejudice to the other party;
  • actual notice to the other party of the witness and the length of time prior to trial that the other party
  • received such actual notice;
  • whether there exists a history of the party engaging in deliberate delay;
  • the degree of compliance by the party with other provisions of the court’s order;
  • an attempt by the party to timely cure the defect; and
  • whether a lesser sanction would better serve the interests of justice.

A trial court has the authority to impose appropriate sanctions, including dismissal, in order to “contain and prevent abuses so as to ensure the orderly operation of justice. In a recent civil case, the plaintiff and her counsel ignored a trial court’s order suppressing “unduly prejudicial” evidence concerning the defendant’s expunged criminal record and “engaged in a concerted and wideranging campaign . . . to publicize the details of the inadmissible evidence through the mass media and other available means. The trial court ultimately sanctioned the misconduct by dismissing the plaintiff’s lawsuit after having expressly warned the plaintiff and her counsel that violation of the court’s order would result in dismissal. The court stated, “The trial court has a gatekeeping obligation, when such misconduct occurs, to impose sanctions that will not only deter the misconduct but also serve as a deterrent to other litigants.”

Maldonado v Ford Motor Co, 476 Mich 372, 375 (2006).