Civil Litigation Blog
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Questions of Evidence:

Posted December 4, 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).


Can a Witness be Stopped from Testifying?

Posted November 28, 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.

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


Basics of Civil Litigation:

Posted October 21, 2018

Discovery rules are to be liberally construed to further the ends of justice. The purpose of discovery is to simplify and clarify issues. Restricting parties to formal methods of discovery does not aid in the search for truth. In a recent Michigan Court of Appeals case the court stated, "the trial court did not abuse its discretion in allowing the defendant to conduct ex parte interviews with the plaintiff’s witness. " The Michigan Supreme Court has concluded that allowing ex parte interviews advances the purpose of MCR 1.105, which states, “these court rules are to be construed to secure the just, speedy, and economical determination of every action. . . .” By allowing ex parte interviews, the parties may save time and money, litigation may be simplified, and settlements are encouraged.

A party may not object to a discovery request simply because the information sought will be inadmissible at trial. MCR 2.302(B)(1). However, the information sought must be “reasonably calculated to lead to the discovery of admissible evidence.” Discovery of financial assets in the course of a civil action may be outside the scope as allowed by MCR 2.302, if the information is irrelevant or does not appear reasonably calculated to lead to the discovery of admissible evidence. Bauroth v Hammoud, 465 Mich 375, 381 (2001). Cabrera v Ekema, 265 Mich App 402, 407 (2005).

VanVorous v Burmeister, 262 Mich App 467, 477 (2004).






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