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Oct 2004
01
October 01, 2004

Tips and Tricks for Surviving the Michigan Court of Appeals' New "Rocket Docket"

On October 5, 2004, the Michigan Supreme Court entered an historic order that will change dramatically the practice for appealing trial court orders granting or denying summary disposition. Under this new "rocket docket," such appeals will be briefed, argued, and decided within six months of filing. Because the new rules for these expedited summary disposition appeals will go into effect on January 1, 2005, it is imperative that all Michigan attorneys familiarize themselves with the changes. This article analyzes the new rules and closes with some practical tips for dealing with-and maximizing advantage from—the rocket docket.

The Claim of Appeal

The time for filing an appeal by right or by leave from a trial court order granting or denying summary disposition will continue to be governed by MCR 7.204 and MCR 7.205, i.e., within 21 days after entry of the order or denial of a motion for reconsideration. Unlike the current rules, however, claims of cross-appeal must be filed within 14 days after the claim of appeal is filed or served, whichever is later, or within 14 days after the clerk certifies an order granting leave to appeal.1 As long as the case proceeds on the expedited summary disposition track, it will be unnecessary to file a docketing statement.

The claim of appeal must be accompanied by (1) evidence that the transcript of the hearing on the motion for summary disposition has been ordered; (2) a statement that there is no record to transcribe; or (3) a statement that the transcript has been waived. Importantly, the failure to file any one of the these three documents will not toll filing deadlines for transcripts or briefs, and a sustained failure may result in dismissal under MCR 7.201(B)(3). The form of applications for leave and claims of cross-appeal shall conform to existing MCR 7.205 and 7.207, respectively.

Removal from the "Rocket Docket"

Warning. An appellant that desires to move a summary disposition appeal to the traditional appellate track must file a motion to "remove" the case from the summary disposition track concurrently with the filing of the claim of appeal. Appellee motions to remove must be filed no later than the time for filing of the appellee's brief. There is no provision for removal if these deadlines are missed, although the court itself may decide sua sponte to take the case off the fast track at any time. The court has a standard form for filing motions to remove.

A party opposing a motion to remove must file an answer within 7 days. The court shall then issue an order disposing of the motion within 14 days after the motion's filing. If the court grants the motion, a docketing statement must be filed within 14 days after the date of certification of the order, and timing for appellate briefs is governed by MCR 7.212, beginning on the date the order removes the case from the summary disposition docket.

Transcript

The rules require the court reporter or recorder to file the transcript within 28 days after either the appellant or appellee orders it. (The reporter or recorder shall be entitled to the increased fee of $3.00 per original page and 50 cents per page for each copy of transcripts ordered and timely filed in appeals processed under the expedited docket.) If the appellant has ordered the transcript and the court reporter does not timely file it, the appellant must file within 7 days after the transcript's due date either a motion for an order for the court reporter or recorder to show cause, or a motion to extend the time for filing the transcript. The appellant's time for filing its initial brief will be tolled by the timely filing of one of these two motions. If the appellant fails to file a motion, the time for filing appellant's brief will begin on the date the transcript was due. Similar rules apply if it is the appellee that desires to order the transcript.

Briefs

Briefs must generally conform to the requirements of MCR 7.212, but there are some notable exceptions. The appellant's brief must be filed within 28 days (rather than 56 days) after the claim of appeal is filed or the transcript is filed with the trial court, whichever is later; appellee's brief must be filed 21 days (rather than 35 days) later. The time for filing either of these briefs may be extended for 14 days on motion for good cause shown. Although the parties may not stipulate to such an extension, the motion may include a statement that opposing counsel does not oppose it. The court has a standard form for filing such motions that suggests some possible bases for showing "good cause."

In appeals by leave, the appellant may rely on the application for leave to appeal, rather than filing a separate brief, by filing 5 copies of the application with an explanatory cover letter. In all other instances, the briefs are limited to 35 (rather than 50) pages. Each of the filing parties must provide the court with that party's trial court summary disposition motion or response, brief, and appendices. Reply briefs must be filed within 14 (rather than 21) days of the filing of appellee's brief and are limited to 5 (rather than 10) pages.

Oral Argument and Decision

The court shall notify the parties that the case will be submitted as a "calendar case" on the summary disposition track within 7 days after the filing of the appellee's brief. The panel's opinion or order shall issue no later than 35 days after submission of the case to, or oral argument before, a panel of judges for final disposition. Again, it is expected that the court will issue its final opinion or order within six months following the appellant's filing of the claim of appeal.

Practice Tips

  • It may be to the appellee's tactical advantage to never file a removal motion, and to always oppose any removal motion the appellant files, as a fast track and a shorter page limit seem likely to increase the likelihood of affirmance.

  • As appellant, be sure to order the transcript immediately following a loss in the trial court. If the expedited track is inappropriate, be sure to file the removal motion concurrently with your claim of appeal.

  • As a trial court summary disposition advocate, be aware that whatever you submit to the trial court must also be submitted to the Court of Appeals. This may increase the appellate "look and feel" of trial court summary disposition briefs.

  • The time for filing appeal briefs is reduced, and the flexibility of stipulated extensions has been eliminated. Preparation of appeal briefs must therefore start from the day a summary disposition motion is granted or denied.

  • Remember to advise your clients of the new fast track before an appeal begins. This expedited procedure is going to be a shock for many clients who expect a two-year process for an appellate opinion following a trial court summary disposition order.

Conclusion

The new "rocket docket" will be in place for a two-year pilot period, at which time the Michigan Supreme Court will evaluate whether the procedure should be continued or changed. In the meantime, careful study of and adherence to the new rules will ensure a smooth ride for you and your clients on the rocket.


ENDNOTES

1For an overview of when and how to use a cross appeal, see John J. Bursch, "The Cross Appeals Revisited" 17 (Appellate Practice Section Newsletter, Fall-Winter 2003-2004).


*  *  *  *

John J. Bursch is a partner at Warner Norcross & Judd LLP, where he chairs the Firm's Appellate Practice Group. A former federal appellate judicial clerk, he is currently an elected member of the Michigan Appellate Practice Section Council and an editor for the American Bar Association's Appellate Practice Journal. Mr. Bursch routinely assists other practitioners in preparing motions and appeals in the Michigan Court of Appeals and Michigan Supreme Court. He can be contacted by telephone at 616.752.2474 or by e-mail at jbursch@wnj.com.

 

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