Post Trial Motions: Setting the Stage for Appeal
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MICHIGAN DEFENSE Quarterly Volume 24, No. 2 October 2007 IN THIS ISSUE: • Alteration of Electronic Evidence • Court Rules Update • The Effect of Plaintiff’s Bankruptcy • Guest Column: Judicial Philosophies on the Claim • Amicus Committee Report • Defending Construction Injury Liability Cases • MDTC Schedule of Events • The Effect of Fultz on Third Party Claims • Practice Tips • Young Lawyers Section: Post-Trial Motions THE STATEWIDE ASSOCIATION OF ATTORNEYS REPRESENTING THE DEFENSE IN CIVIL LITIGATION MDTC OFFICERS Peter L. Dunlap, President Robert H S. Schaffer, Vice President J. Steven Johnston, Secretary Lori A. Ittner, Treasurer MICHIGAN DEFENSE TRIAL COUNSEL, INC. MDTC BOARD OF DIRECTORS Jana M. Berger James H. Hughesian P.O. Box 66 • Grand Ledge, Michigan 48837 • Phone: 517-627-3745 • Fax: 517-627-3950 Karie Boylan Catherine D. Jasinski www.mdtc.org • [email protected] Hal O. Carroll Phillip C. Korovesis Alan J. Couture Thomas R. Meagher Timothy A. Diemer Todd W. Millar Michigan Defense Quarterly Norton T. Gappy Allison C. Reuter Vol. 24 No. 2 • October 2007 REGIONAL CHAIRPERSONS Jeffrey C. Collison, Saginaw/Bay City President’s Corner .................................................................................................... 4 Tyren R. Cudney, Kalamazoo John Patrick Deegan, Traverse City/Petoskey Smoke and Mirrors: The Fabrication and Alteration of Electronic Evidence Phillip C. Korovesis, Southeast Michigan Ridly S. Nimmo II, Flint By: Sharon D. Nelson, Esq. and John W. Simek............................................... 6 Edward P. Perdue, Grand Rapids Erin J. Stovel, Lansing The Bankrupt Plaintiff And The Issue Of Standing Keith E. Swanson, Marquette By: Michael J. Rinkel And Susan J. Zbikowski .............................................. 10 DEFENSE RESEARCH INSTITUTE I-Beams And Hard Hats:Defending Construction Liability Cases REPRESENTATIVE By: Trevor J. Weston And Christopher S. Berry............................................. 15 José Brown MINISTER OF FUN Clear As Mud: Claims Brought By Third Parties Following The Decision James G. Gross PAST PRESIDENTS COMMITTEE In Fultz John P. Jacobs By: Todd W. Millar.............................................................................................. 19 QUARTERLY EDITOR Hal O. Carroll Young Lawyers Section VII. Post Trial Motions: Setting The Stage For Appeal SECTION CHAIRPERSONS By: Timothy A. Diemer ...................................................................................... 24 Christina A. Daskas, General Liability Michigan Court Rules and Michigan Civil Jury Instructions Proposed Hilary A. Dullinger, Co-chair/Appellate & Amicus Curiae Amendments Patrick F. Geary, Law Practice Management By: M. Sean Fosmire........................................................................................... 28 Scott S. Holmes, Young Lawyers Dean F. Pacific, Labor & Employment Guest Column On Judicial Philosophies And Block Voting Michael J. Rinkel, Trial Practice Mary Massaron Ross, Co-chair/Appellate & By: William C. Whitbeck ................................................................................... 30 Amicus Curiae Richard J. Suhrheinrich, Professional Liability Amicus Section Report.......................................................................................... 33 Practice Tip .............................................................................................................. 35 EXECUTIVE DIRECTOR Madelyne C. Lawry Michigan Defense Quarterly is a publication of the Michigan Defense Trial Counsel, Inc. All inquiries should be directed to Madelyne Lawry, 517-627-3745. EDITOR’S NOTES In this issue, Michael J. Rinkel and Susan J. Zbikowski of Siemion, Hucakbay, Bodary, Padilla Morganti & Bowerman explain how defense counsel may be able to make use of a plaintiff’s failure to list the claim in a bankruptcy petition as a defense. The Young Lawyers series resumes with part VII, in which Timothy A. Diemer of John P. Jacobs, P.C. explains the uses of post trial motions, in terms of their possible effect in the trial court and on a subsequent appeal. Todd W. Millar of Smith, Haughey, Rice & Roegge provides an analysis of how the decision in Fultz v Union-Commerce Associates affects claims brought by persons who are not parties to the contract that underlies the activity that gave rise to the accident. Sharon D. Nelson, Esq. and John W. Simek of Sensei Enterprises, Inc. provide an entertaining and informative explanation of how electronic evidence can be fabricated or altered and how to detect the tampering. Trevor J. Weston and Christopher S. Berry of Berry, Johnston, Sztykiel, Hunt and McCandless, P.C. provide us with an analysis of the liability for injuries on construction sites. In a Guest Column, Chief Judge William Whitbeck of the Court of Appeals offers his views on the role that judicial philosophies play in the process of making decisions. Sean Fosmire of Garan Lucow Miller once again brings us up to date on proposed changes to the court rules and to standard jury instructions. We also have two new Practice Tips, concerning responding to written discovery requests and drafting reports of depositions. As always, we are grateful to the broad range of authors who devote their time and energy to writing and sending articles. Be sure to check the Schedule of Events to keep up to date with what MDTC and DRI are up to. Also, take a look at this issue’s Member News section, and send us more information on yourself or your colleagues for the next issue. Opinion: We invite other members to send us personal opinions on topics of interest to our readers. A length of about 1000 to 2000 words would be ideal. Articles: We always welcome articles on any topic that will be of interest to our members in their practices. Although we are an association of lawyers who primarily practice on the defense side, the Quarterly always tries to emphasize analysis over advocacy, and favors the expression of a broad range of views, so articles from a plaintiff’s perspective are always welcome. Author’s Guidelines are available from the editor ([email protected]) or the assistant editor, Allison Reuter ([email protected]). Hal O. Carroll, Editor • [email protected] Vol. 24 No. 2 • October 2007 3 PRESIDENT’S CORNER By: Peter L. Dunlap, President, MDTC Fraser, Trebilcock, Davis & Dunlap, P.C. 124 West Allegan, Suite 1000 • Lansing, MI 48933 Phone: 517-482-5800 • Fax: 517-482-0887 • Email: [email protected] September 12, 2007 oped case law. While we are aware of the steady decline in medical mal- State Bar of Michigan practice filings in the circuit courts, 306 Townsend Street and it has been documented that mal- Lansing, Michigan 48933-2012 practice premiums for physicians remain disproportionately high, it is Re: Proposed Amendment to 1961 hard to imagine how this proposal PA 236 (MCL 600.101 to 600.9947) by would address the issue of insurance Adding a Chapter 51 company premium escalation. The first area of focus in the pro- Our Executive Director, Madelyne posal is the training of Circuit Court Lawry, has forwarded your e-mail on judges to help them become more this subject to our Executive competent in the handling of medical Committee. Thank you very much malpractice cases. The legislation for providing us with the opportuni- proposes to accomplish that objective ty to review this proposed legislation by having a “committee” develop a and contribute our input. “judicial training program.” That committee is to be “coordinated” by SCAO and is to include “equal repre- “Healthcare Courts” From our study of litigation sentation from the Michigan State In my initial “President’s Corner,” Medical Society and the State Bar of I stated that “The challenge for trends in Michigan, we are Michigan.” We have a number of MDTC…is to maintain [its] relevance unaware of any pressing or observations in this regard. and produce benefits for the mem- developing concern justifying First, an educational function with bership in the climate of 2007.” As this focus can easily be accomplished lawyers, we identify closely with the abandoning the current by the Michigan Judicial Institute interests of our clients. We also speak system expressed in which is under the direction of for them when they cannot speak for Michigan’s statutes and SCAO. I would, in fact, be surprised themselves. Looking after the inter- if some of their past curriculum did ests of our clients is so fundamental well developed case law. not include the very subjects and that we feel called upon to do it in the focus mentioned in the proposed leg- public forum as well as the courts. islation. Such is the case with a proposal that Michigan Defense Trial Counsel Secondly, the proposed legislation is not yet in the form of a legislative would urge that the State Bar of gives great influence to the Michigan bill introduced to institute “Health Michigan take a position in active State Medical Society. In fact, equal Courts” which would have exclusive opposition to this proposal. It would influence with that of the State Bar of jurisdiction over medical malpractice appear to us that this proposed legis- Michigan. It is difficult to imagine actions. The proposal can be reviewed lation focuses on two areas in creat- how this would not be perceived by on our website, www.mdtc.org. It is ing a “Healthcare Court” which will the public as unreasonably favoring not my purpose or understanding of have exclusive jurisdiction over all one side of the medical malpractice my duties as President to