By Lee Dryden
The Daily Record Newswire
DETROIT — Leave it alone.
That’s the chorus in the early stages of a comment period to tell the Michigan Supreme Court whether to change case evaluation rules.
The proposed amendment of MCR 2.403, submitted by the Michigan Judges Association, would reduce the requirement from 28 to 14 days for parties to accept or reject a case evaluation. The comment period began Nov. 25 and runs through March 1.
The impetus behind the proposed rule change is moving cases forward, especially during a time when technology allows the parties to be in touch.
Lawyers said via the online comments that the current time period works fine. They expressed concern about clients being rushed into important financial decisions.
Three-member case evaluation panels provide a monetary recommendation for which sanctions may apply for nonacceptance. Failure to receive a more favorable trial verdict results in penalties to the party that rejected the panel’s evaluation.
Municipal attorneys, including those representing Ypsilanti, Jackson and Bay County, said in comments to the court that it would be difficult to gain approval from government bodies who meet only once or twice per month.
“This rule will seriously impact Michigan cities and townships, already financially strapped by the economic downturn,” wrote John M. Barr, Ypsilanti city attorney. “Is there really a pressing need to change this rule that has been working for many years? Most municipalities are already stretched thin and this would cause additional stress and hardship.”
Communities must comply with the Open Meetings Act and the decreased approval time period may force them to call special meetings at taxpayers’ expense, attorneys said.
“If a special meeting is even possible, because a quorum of the council or governing body must be present, it is an unnecessary burden on the local community and municipality because the money used to pay for the costs and expenses of the special meeting will come from money previously allocated to providing services to the local community and municipality,” said a comment from Jackson City Attorney Bethany M. Smith and Assistant City Attorney Robert C. Rottach.
Amber L. Davis-Johnson, an attorney in the Bay County Department of Corporation Counsel, wrote that it is already difficult to obtain approval within the 28-day period without calling a special meeting.
“Such an amendment to MCR 2.403 would adversely impact public entities as a whole, at the taxpayers’ expense,” she wrote.
Speeding up the litigation process leads to an “attack dog” mentality, according to a comment from Gary P. Schenk, an attorney at Schenk, Boncher & Rypma in Grand Rapids.
“The rule has worked reasonably well for many years and gives litigants time to consider a careful and reasoned response as opposed to being ‘bulldozed’ into making a decision due to time constraints,” he wrote.
Attorney David J. Lee wrote that decreasing the time period will lead to people making emotional decisions that could use further consideration.
“The award is the first shot of reality in litigation and there is a natural process of anger and denial when confronted by an authoritarian opportunity to put up or shut up,” he wrote. “I have had a number of cases over the years when the client went back and forth between emotion and good judgment as to their response.”
The judges association recommended the change in 2014 to help move cases to trial.
The group’s next meeting is in January and the outcry has their attention, although it is unclear if their stance will change.
“It’s fair to say the Michigan Judges Association will take another look at it in light of the comments being made,” said Ottawa County Circuit Court Judge Jon A. Van
Allsburg, whose term as chair of the association’s rules committee recently ended.
Despite the concerns expressed, some believe the impact of any rule change may be minimal with case evaluation’s lessening popularity as an Alternative Dispute Resolution option.
A 2011 study, “The Effectiveness of Case Evaluation and Mediation in Michigan Circuit Courts” shows the case evaluation award amount was accepted in 22 percent of cases examined in the study.
Meanwhile, 72 percent of cases that went to mediation were disposed through settlement or consent judgment without later going to case evaluation or trial. Nearly half of the cases were settled “at the table.”
The study was compiled by consultants for the State Court Administrative Office. Input was gathered from attorneys, judges and court administrators.
While the study did not recommended disposing of case evaluation as an option, mediation was found to be more efficient in resolving cases — six months sooner in some cases.
Richard L. Hurford, a mediator and chair of the ADR sections of the Oakland and Macomb county bars, said many attorneys do not see case evaluation as an effective ADR tool.
Therefore, he doesn’t think there will be widespread interest in the proposed rule change.
“Case evaluation is being utilized less and less,” he said. “Courts have been ordering people to mediation with a greater frequency and I think that trend will continue.”
Hurford said the case evaluation process involves three attorneys you may or may not know in a 15- to 20-minute section.
“They may not be able to put a meaningful pricetag on the value of a case,” he said.
Joseph C. Basta, who served on case evaluation panels for 30 years and now does mediation full-time, agreed mediation is more effective than case evaluation. He supports the proposed rule change.
“I don’t believe it’s going to cause a huge hardship,” he said.
The downside is the impact the change would have on those who are not as technologically savvy and rely on filing by mail, he said.
With increasing digitization and emphasis on e-filing, everyone in the legal community will have no choice but to get up to speed on technology, Basta said.
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