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Discovery Requests in Litigation

Discovery in Civil Cases

Parties are not expected to know everything when they file or answer a civil complaint. Thanks to Michigan’s court-rules, parties have plenty of opportunities to find out what the other side has prior to proceeding to a trial or summary motion. Discovery requests are a huge in civil cases.

In contrast to cases involving criminal charges, there is no mandatory discovery required on either party. In some situations, neither party may need much discovery at all from the opposing party. Every case is different and tactics vary significantly depending on a litany of factors.

Instead, it is up to the respective parties to pursue their own discovery requests within the confines of court-rules, court-orders, scheduling orders, the restraints of the clients, subject matter, etc. Civil litigation is an adversarial process; the other side may not just hand over stuff that will help you win your case.

Interrogatories, admission-requests, and a request for document production are known as “discovery” requests. With civil litigation, each side can ask the opposing side about their case and ask for documents related to their case. Requests for discovery in some manner are standard in a vast majority of civil cases and these requests are very important with larger, more complicated civil cases filed in Circuit court.

Attorneys have the resources to discover a vast majority of information about their respective case through these methods. Online Forums such as Facebook or other programs are often key targets of information requests. Even deleted texts, messages, or e-mails could possibly be recovered.

These discovery requests may be made in a variety of ways.

Depositions

For more information on Depositions, click here.

Admissions

For more information on Admissions, click here.
Interrogatories

For more information on Interrogatories, click here.

Demand for Production

For more information on Demands for Production, click here.

The rules may be different for family-law cases, criminal cases, or other types of proceedings. Please note these articles and pages focus on the general rules for discovery in general civil litigation filed in Michigan’s District or Circuit courts. Further, the rules and methods may also be impacted by local court-rules and scheduling orders.

Requests for discovery in civil cases may not be allowed in Michigan’s District Courts or in Small-Claims matters without a court-order permitting them. However, these requests are frequently made if a civil-claim is pending in Michigan’s Circuit Courts.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

If you need specific legal advice for your particular circumstances, I encourage you to privately consult with a lawyer. Circumstances may vary significantly. If you need specific legal advice, please privately consult with a lawyer.

 

Yes, thanks to Michigan’s Court Rules, you will get a copy of your police report

When you are a Criminal Defense attorney, police reports are a big deal. They are very important documents. While they are, in my opinion, not always accurate and they obviously come from a biased source, having access to police reports is essential. They are useful in so many different ways. These reports contain the blue-print for a prosecutor’s case. Additionally, they help us find other potential issues which may need further examination through discovery requests. How do we get access to police reports? The answer is found in Michigan’s court-rules and laws.

 

Criminal law, in some ways, is more “civil” than civil law. The goals are very different. In some aspects, in my opinion, the rules are fairer.  Prosecutors, if I ask them to, have to give me certain stuff and I have the option to ask for a court-order if they do not. Prosecutors do not have the option to bury me with huge interrogatory requests or ambush me with short-notice depositions. They cannot, unless it’s an usual circumstance, force my client to answer questions prior to trial. Further, prosecutors are required to turn over key chunks of their case to defense counsel upon request. This is all possible because of the discovery rules for criminal cases under Michigan law.

 

Discovery, broadly stated, is the process whereby the parties in both civil and criminal cases allow the respective sides to examine their potential evidence, take witness testimony, ask for documents, see potential exhibits, examine video/audio evidence, or other steps to examine their respective cases. The Michigan Court Rules and laws contain guidelines for appropriate steps and procedures. Ultimately, the presiding judge, subject to potential appellate review, has the final say over these matters.

 

With criminal cases under Michigan law and court-rules, discovery is different, depending on the type and severity of the charge. The court rules and applicable statutes explicitly require both the prosecutor and defense to turn over certain types of information, especially with felony charges. This is in stark contrast to civil cases. With civil cases, judges generally have much more discretion and may even prohibit discovery unless they  grant a court-order (district court civil-litigation, for example) to start the process.

 

With felony charges, prosecutors are required to turn over certain types of information to the defense, if requested to do so, as required pursuant to sub-chapter 6.200 et. al. of the Michigan Court Rules. In particular, MCR 6.201(A) requires that the prosecutor, among other things, turn over witness lists, witness statements, the curriculum vitae of all expert witnesses, and this rule requires that the prosecutor allow the defense to inspect “any tangible physical evidence that the party may introduce at trial.” MCR 6.201(A)(6).

 

MCR 6.201(B) is key rule because it requires a prosecutor to provide “any exculpatory information or evidence known to the prosecuting attorney,”MCR 6.201(B)(1). It also all police reports, written or recorded statements, regardless of whether the person testifies, of the defendant, co-defendant, or accomplice relating to a case, copies of warrants, and copies of any agreements related to the procurement of potential testimony in the case. This particular rule is absolutely vital. MCR 6.201(B)(2-5).

 

Discovery is also reciprocal. MCL 767.94a requires that the defense turnover certain types of potential evidence to the prosecutor as well.

 

There are limits to discovery. MCR 6.201(C) lists some of the restrictions and the rest of the court-rules under this sub-chapter deal with the procedures to resolve any disputes over discovery. Some information, for example, may be redacted or protected by court-order, there are certain time-frames involved, and other considerations as well. MCR 6.201(D & E, et. al).

 

With misdemeanor charges, though, discovery is not as clearly and explicitly defined. Most prosecutors will turn over essentially the same documents as they would for a felony charge; however, some courts request a properly filed motion by the defense first. Regardless of the charge, defense counsel usually needs to file a formal request with the prosecutor to receive discovery.

 

This “request” usually is made through a “discovery demand” often filed when defense counsel files an appearance on behalf of an alleged defendant in a pending criminal case. However, either the prosecution or defense may file additional motions requesting discovery as the case proceeds and ask for a court-order. MCR 6.201(D & E, et. al).

 

These mandatory discovery requirements, especially the provision requiring prosecutors to turn over exculpatory evidence, are essential for the criminal justice system. When prosecutors fail to turn over exculpatory evidence, the odds of a wrongful conviction may rise exponentially.

It is not a perfect system, of course. There have been tragic examples of situations where prosecutors failed to disclose exculpatory evidence, defense attorneys played games with discovery, or other various types abuses. Gamesmanship with discovery is certainly not dead.

However, Michigan, at least, has rules that put the emphasis on the prosecutor to level the playing field a little bit.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

For more information on Michigan criminal law, click here.

Anyone charged, of course, is presumed innocent. The prosecutor would need to prove the elements of the offense beyond a reasonable doubt if the matter proceeded to trial. Simply because a person is charged does not mean that ultimately, they will be convicted.

If you need specific legal advice for your particular circumstances, I encourage you to privately consult with a lawyer. Circumstances may vary significantly. If you need specific legal advice, please privately consult with a lawyer.

If you are charged with an offense and cannot afford to pay for your own defense, the court may appoint you an attorney payable at the public’s expense. You have a right to counsel.

 

Expunging a crime in Michigan under the new amended law

*These laws have recently changed…see MCL 780.621.

1. What Types of Crimes are Eligible?

*The most recently amended law, MCL 780.621 will make a significantly larger percentage of people with prior convictions eligible. Currently, the amended version is the process of being codified.

Notably, this law altered and amended the language regarding minor misdemeanor offenses. This will make it easier for people with multiple misdemeanor convictions, as long as they meet the rest of their eligibility criteria, to potentially get them expunged.

Section (a) notes;

(a) A person who is convicted of not more than 1 felony offense and not more than 2 misdemeanor offenses may petition the convicting court to set aside the felony offense.” See House Bill No. 4186, entered as PA 463 of 2014 (1).

Please, note, however, a significant percentage of misdemeanors and felonies are still excluded from being expunged. Traffic offenses, for example, are still excluded; meaning no, it is not possible under this law to get an OUI/OWI conviction set-aside. See PA 463 of 2014 (3)(d).

However, it substantially increases the number of potential applicants because it altered the language regarding minor offenses and it permits more people now with multiple convictions of misdemeanors to potentially apply.

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2. How does the process work?

Assuming a person meets the eligibility criteria, any effort to expunge an offense cannot commence until five years after the date of conviction. The process starts with an application, preferably with an affidavit and certified copy of the original conviction. The applicable statute and application contains more detail. Applications may need to be notarized and potentially witnessed as well, depending on the materials.

Next, you will be required to submit a fingerprinting card and a background check. Out-of-state convictions count. It is vital to make sure there is nothing out-of-state that could show up during this background check. Lastly, applicants will need to schedule a hearing and appear before a judge to convince the judge that they are worthy of having the offense expunged in order to complete the process. The process usually takes several months.

3. Potential Obstacles

There are numerous potential obstacles along the way. There are no guarantees; even if an application is properly filled out and a person’s background is clear.

Some judges closely scrutinize prospective applicants and are hard to convince. Judges often reject prospective applicants for several reasons. Red flags include whether an applicant had later contacts with police, if they were charged with any new offenses but acquitted, whether the prospective applicant had aggressive interactions with law enforcement during the original charge, or many other potential factors.

If a person served a term of probation and if they had problems with their probation officer, that could be a red flag. Probation officers may be a powerful ally if there was a good relationship, but a probation officer would also have an influential voice if things did not go well.

Further, if a victim in the original offense had especially strong feelings regarding the conduct, that could be an issue. Judges and Prosecutors will solicit and value the opinion of the “victim” of the offense.

The prosecuting attorney may also have objections. The Prosecutor’s office, as well as the Attorney General’s office, potentially, will have a say and a chance to express their views on the issue.

Basically, a judge will closely scrutinize how the prospective applicant lived their life since the conviction. Judges will receive information from a variety of parties, and not all of that information may be favorable depending upon the alleged circumstances.

4. Finishing Steps

If an applicant is successful during their hearing, the presiding judge will grant an order expunging the conviction. If the applicant files the appropriate paperwork with a copy of that order, the police will then potentially destroy any fingerprints on file from the original case. An expunged offense should be off a person’s public record. However, there may be traces of the proceedings still in court-files or other locations. Further, law enforcement officials and court-officers may still have some access or awareness of the prior conviction. However, removing it from the public record will make it very difficult to find, especially if a person follows up with the police and gets their fingerprints destroyed. While it may take some work, expunging a past criminal conviction is worth the effort. However, it takes work, organization, and a willingness to put the time into the process.

This new law substantially increases the number of people who may now be eligible. If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Our office frequently handles this types of matters. For a free initial consultation, please contact us at (517) 507-5077.

For more information on Michigan criminal law, click here.

Tips for Homeowners considering remodeling projects….

Homeowners, for a litany of potential reasons, may need to remodel or 38286807_7bcf7bb83c_zreconstruct portions of their home. Unfortunately, things do not always turn out well and litigation may ultimately be necessary.

However, prior to starting any remodeling projects, there are a few basic questions and things a homeowner can do to help avoid some significant issues in the future. This is not an exhaustive list, by any means. These are just some general observations based on my years of litigating these types of cases. These projects are often much more legally complicated than they appear.

    • First, if you have a project in mind, check your local rules.
      • Your local ordinances and building codes, for example, should be available online or at the city/town hall. If you want a bigger garage, for example, you may need a variance or approval for any sort of expansion from local authorities. Zoning may be an issue as well. Building codes vary significantly depending on where you live. Some cities, for example, are very restrictive. You may need to pull permits and get approval from multiple levels of the government, all the way up to the Feds, depending on where your property is located.
      • You may be restricted by privately negotiated rules as part of a subdivision or local association. These restrictions will often be considerably tougher than local building codes and you risk litigation if you do not comply with them.
      • Certain projects just cannot be built, legally, or may be far too expensive to get all the necessary permits and approvals, especially for people living near environmentally sensitive areas.
    • What’s your budget?
      • Will you need financing?
        • Rates and terms for home-equity lines are different than rates for purchases. Equity lines may add a significant additional monthly payment so factor that in as well.
      • Plan on cost-overruns and try to under-budget these projects.
        • Things will happen which will probably drive up the costs. If everything works out, great; you have a surplus.
    • Check with your property insurer.
      • Remodeling or additions to a house or condo may impact your homeowner’s policy. Further, you will need to know whether damages may be covered under your policy.
    • Check your mortgage and note.
      • Depending on the type of project, you may need to consult with your lender or anyone else with a legal interest in the property. In the fine-print of a mortgage, there may be language which would require the lien-holder’s approval because significant remodels may impact their property interest.
        • A mechanics lien, for example, has important legal ramifications in terms of who has priority to the proceeds of the house if it is sold or foreclosed upon.
    • Are you planning on hiring anyone or doing it yourself?
      • I recommend properly insured and licensed professionals for a vast majority of the work, given the potential risks; however, the legal liabilities and responsibilities are very different depending on whom is doing the work.
      • There are less legal protections available and greater potential liability risks if a homeowner attempts to do the work on their own. However, for a highly skilled and resourceful homeowner who can navigate the permitting process, it may be a way to save money.
      • It may be legally easier for a homeowner to pull a building permit, for example; however, I urge caution if a contractor is asking the homeowner to do this in the homeowner’s name.
        • Some less reputable builders and contractors may hide behind owner-permits to complete jobs which legally, they would not be permitted to do otherwise.
    • What type of professionals will you potentially need?
      • While most general contractors will know what a project requires, different types of professionals charge different rates.
        • Disputes over pay and working conditions between a general contractor and sub-contractors may stall your project, cause significant cost-overruns, or cause other significant headaches.
      • If you do your research in advance, you can anticipate and estimate these costs and build it into your budget.
      • If you are interested in hiring someone, prior to meeting with them, make sure they are properly licensed prior to discussing any terms.
      • Are they insured or bonded? In a vast majority of professions, there is some type of insurance or bonding available for practitioners.
        • It is good to know this information. This will be a big issue if something goes wrong. It is usually acceptable to ask.

 

  • If you decide to hire someone and start the project, make sure you have a written contract and use written agreements.
  • Make sure all the parties sign the agreement.
  • Make sure all the parties carefully review the agreement.
  • Be aware of the fine print…all the language in that contract is in there for a reason.
  • If litigation is ultimately necessary, the written contract will be a key issue. The written contract is the first place the lawyers and court will look at when examining a dispute over terms.
  • If you have concerns, make sure you put those concerns in writing, send the other party a letter informing th7594030640_91d17e5b9b_zem of your concerns, ask them to fix the issues, and save a copy.
    • Do not just rely on texts or calls. Even an e-mail is better than just a phone-call since it creates documentation with a date and time-stamp that could be used later.
    • It is vitally important to document your concerns and make sure the other party has time to address your concerns, i.e., give the person you hired a chance to fix or address your concerns.
    • Put any amendments to the contract in writing. Oral amendments to a contract, for example, are much harder to enforce. If you agree to change something, make sure it is in writing and preferably signed or initialized by the parties.
  • Do not play games with payments and keep clear records of payments and receipts.
    • Make sure the parties are in agreement about how and when payments will be made.
    • You may be better off suing afterwards rather than breaching a contract by just stopping payments.
    • If litigation is ultimately necessary, it is often better to go into the litigation with “clean hands.”  A bounced or stopped check, for example, may have significant ramifications which are not readily apparent.
    • Book-keeping is a big issue if the matter ends up in litigation; especially if insurance payments are involved.
  • Be clear about deadlines and advise the other party of future issues in advance.
    • Communication issues over dates is a key dispute in many of cases if they end up in litigation.
  • Keep the lines of communication open.
    • So many potential disputes may be resolved through simple and direct communication.
  • Give yourself an extra cushion of time for the work to be done. Delays may happen for a variety of reasons (weather, for example) beyond anybody’s control.

Even with all the best preparation, delays and cost-overruns should still be planned for. Ultimately, though, most people are reasonable and will be able to work through any issues they may have.

If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Our office frequently handles this types of matters. For a free initial consultation, please contact us at (517) 507-5077.

For information on Deeds under Michigan Law, click here.
For information on Nuisance claims under Michigan law, click here.
For information on the Summary Proceedings Act, under Michigan Law, click here.
For information on real-estate litigation, notably lawsuits involving homeowners and builders, click here.