Civil Litigation Blog
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Parol Evidence:

Posted December 3, 2018

Oral (parol) evidence is not admissible to contradict or change an unambiguous written agreement.  The parol evidence rule has four exceptions. Extrinsic evidence is admissible to show that the writing was a sham, not intended to create legal relations, that the contract has no efficacy or effect because of fraud, illegality, or mistake,that the parties did not integrate their agreement or assent to it as the final embodiment of their understanding, or  that the agreement was only partially integrated because essential elements were not reduced to writing.

Parol evidence is inadmissible to show that an agreement is not integrated when the parties have included an integration clause in the contract, unless the case involves fraud or the agreement is obviously incomplete on its face, making parol evidence necessary as a gap filler. Where the writing is not ambiguous on its face, the circumstances under which the parties contract may be looked at to establish an ambiguity, as well as to indicate the proper choice of possible meanings; and the common knowledge and the understanding of the parties themselves as shown by their previous negotiations is sometimes such a circumstance.

The parol evidence rule does not preclude the introduction of evidence to establish that there was a condition precedent to the contract that was not included within the contract. Where there is evidence that a latent ambiguity exists with respect to the intended scope of a release, a court may consider parol evidence regarding that scope when an unnamed party seeks to enforce third‐party‐beneficiary rights based on the broad release language. In Shay v Aldrich, 487 Mich 648, 676, (2010), the plaintiff claimed that he had been assaulted by several police officers. Shay, supra at 651. After accepting case evaluation awards with respect to two of the officers, the plaintiff executed two separate releases in each officer’s name. Id. at 652‐653. The releases also stated that “all other persons” were released from liability. A latent ambiguity exists when the language in a contract appears to be clear and intelligible and suggests a single meaning, but other facts create the necessity for interpretation or a choice among two or more possible meanings.

To verify the existence of a latent ambiguity, a court must examine the extrinsic evidence presented and determine if in fact that evidence supports an argument that the contract language at issue, under the circumstances of its formation, is susceptible to more than one interpretation. Then, if a latent ambiguity is found to exist, a court must examine the extrinsic evidence again to ascertain the meaning of the contract language at issue. The Court concluded that the extrinsic evidence presented by the plaintiff clearly showed that the broad release language was not intended to release the defendants from liability.

Parties to a written agreement may, by parol evidence, extend the time for performance, especially where the contract does not make time of the essence.  As it relates to oral modification of a written agreement, there is a higher burden of proof.  Clear and convincing evidence of a mutual agreement to modify the contract is required. A departure from the written contract can be predicated on the parties’ conduct, as well as on the express language of an agreement.

Shay v Aldrich, 487 Mich 648, 676, (2010).

Hamade v Sunoco, Inc (R&M), 271 Mich App 145, 166 (2006)



Posted November 23, 2018

The admissibility of evidence is governed by the common law, statutes, and the Michigan Rules of Evidence (MRE).  The rules of evidence cover the vast majority of evidentiary issues and are the beginning point for any analysis. Generally, the rules provide that evidence is admissible if relevant (MRE 402), unless excluded by another rule or constitutional provision. The exclusionary rules typically state the exclusion and then provide for exceptions to the exclusions. For example, the hearsay rule provides for the exclusion of hearsay (MRE 802) and then provides exceptions to the exclusion (MRE 803, MRE 803A, MRE 804). The rules of evidence are intended to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. MRE 102.

The rules apply to all actions and proceedings in Michigan courts, except for the actions and proceedings listed in MRE 1101(b)(1)–MRE 1101(b)(10). MRE 1101(a). When a conflict exists between a statute and a rule of evidence, the rule of evidence prevails if it governs purely procedural matters. Statutory rules of evidence may apply if they do not conflict with the Michigan Rules of Evidence. MRE 101; People v McDonald, 201 Mich App 270, 273 (1993). In McDonald, the Court concluded that MCL 257.625a(7)1 did not conflict with the rules of evidence because it did not allow admission of the evidence for the purpose of establishing guilt, and it required the court to issue a jury instruction explaining how the evidence was to be used. McDonald, supra at 273. The rules of evidence in civil actions, insofar as the same are applicable, shall govern in all criminal and quasi criminal proceedings except as otherwise provided by law. MCL 768.22(1).

People v McDonald, 201 Mich App 270, 273 (1993).

Donkers v Kovach, 277 Mich App 366, 373 (2007).


Federal Motions and Trials:

Posted October 20, 2018

Parties may try to end a case expeditiously through a dispositive motion, such as a motion for a default judgment, a motion to dismiss, a motion for judgment on the pleadings, or a summary judgment motion. Such motions – especially summary judgment motions – may themselves be costly and time-consuming. Apart from default motions, most dispositive motions are contested, and parties may file cross-motions that further complicate the proceedings and drive up litigation costs. While these motions can remove vexatious claims from court, at least some lawyers believe that dispositive motions – such as those for summary judgment, which are frequently denied so that the litigation continues on – are not proportionately beneficial compared to their cost.

If the parties forego dispositive motions or the motions are denied, and the case is not settled, the parties proceed to trial, adding another layer of expense. Trial can be a daunting experience for lawyers, much less inexperienced litigants. Before the trial begins, parties typically must exchange exhibit and witness lists, prepare proposed exhibits, furnish evidentiary objections and replies, prepare to examine and cross-examine witnesses, prepare and object to opposing jury instructions if a jury is involved, and create demonstrative exhibits, among many other things.

Trial materials and testimony generally must abide by the Federal Rules of Evidence, with which litigants must be familiar in order to lodge and respond to objections during the proceedings. Litigants also must be prepared to offer procedural and substantive legal arguments in response to the plethora of issues that inevitably arise during a trial.

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