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Practice Makes Perfect Discovery

Let’s set the record straight about discovery in district court. The rules are very, very simple. First, discovery is not permitted in civil infraction actions. See MCR 2.302(A)(3). Second, discovery is not required in district court misdemeanor actions. See Michigan Supreme Court Administrative Order 1999-3: “We wish to inform the bench and bar that MCR 6.201 applies only to criminal felony cases.” Third, the district court does not even have the authority to order discovery in district court misdemeanor actions. See People v Nickerson, unpublished memorandum opinion of the Court of Appeals, March 13, 2007 (Docket No. 271459): “[T]he argument advanced by plaintiff, that a trial court has the inherent authority to order discovery even in the absence of a statute or court rule, is without merit.” Finally, the fact that a police video is recycled is not a reason to file a motion to suppress: “Absent the intentional suppression of evidence or showing of bad faith, a loss of evidence that occurs before a defense request for its production does not require reversal.” People v Knott, unpublished memorandum opinion of the Court of Appeals, ay 18, 2001 (Docket No. 221186). “Evidence which is destroyed intentionally pursuant to departmental policy to save space does not indicate bad faith or an intent to deprive a defendant of evidence.” In the end, most county prosecutors will work with you to ensure that you have basic discovery at some point during the case if you really need it (often upon payment of an appropriate invoice for the requested items). After all, civility and the exchange of information are the keys to ensuring that the interests of justice are achieved cost-effectively and with appropriate judicial economy. But now that you know the rules, you might want to consider re-naming your discover forms using the word “request” rather than “demand.” Oh, and don’t be afraid to ask the prosecutor how you might go about obtaining what you need. A standard form mailed out with your appearance might not do the trick. View a PDF of the article Read More
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Michigan's New "No Smoking" Rules

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Texting While Driving

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Practice Makes Perfect

Preparing Your Appearance By Donald P. DeNault, Jr. When preparing your appearance or any other case caption involving a civil infraction, the proper “plaintiff” is the municipality, not “the people” of that municipality. In other words, the proper caption is “City of Sterling Heights v Tella Graham.” Don’t use “People of the City of Sterling Heights” because the matter is a civil case, not a criminal prosecution. The “People” of a municipal entity don’t usually sue anyone. They prosecute when the violation is criminal, but they don’t sue for civil concerns. Of course, there’s always an exception to every rule, and sometimes the exception doesn’t make any sense. If the civil infraction is a violation of the Michigan Vehicle Code (not a local ordinance that adopts the Vehicle Code, nor an ordinance that calls itself a vehicle code, but rather the actual, honest-to-goodness Vehicle Code), then the proper caption is “People v Jay Walker.” According to MCL 257.741, though, the proper “plaintiff” for civil infraction violations of the Vehicle Code is actually the State. Nevertheless, the rule adopted by the Michigan Supreme Court is to use “People” rather than “State.” This rule completely contradicts the notion that the People don’t sue, but apparently no one ever really thought it through that far. What to do if your next client is charged with criminal and civil infraction violations? Well, most of us have become accustomed to just using one simple caption, like “People v Noah Lott.” However, the proper approach is probably to prepare two separate captions and treat the cases as separate and distinct. After all, one gets a trial and the other gets a formal hearing, right? But that’s a topic for a future teachable moment… Source: The Michigan Uniform System of Citation, Section (I)(A)(4)(g). View PDF of article Read More
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What kind of person would make a good personal representative?

Picking a good person to serve as personal representative is vital to the efficient running of your estate. When you are thinking about your estate plan, it is easy to focus on the big issues, like deciding who will get your assets, and neglect the smaller, but just as important, decisions. One of such decisions is choosing a competent person to act as personal representative of your estate. Failing to do so could mean that your estate is managed poorly, ends up in probate litigation, or suffers similar undesirable outcomes. In Michigan, personal representatives carry out many important duties such as: Identifying your estate’s assets Notifying your creditors of your death and paying valid bills and claims Protecting and managing your estate’s assets Paying income taxes and estate taxes Ensuring the estate’s assets are distributed according to your will Since virtually all of the duties the personal representative performs are vital to the efficient running of your estate, choosing a competent person is paramount. Unfortunately, many people do not always put much thought into the choice and default to a close family member. Although this may seem like a sound decision, experts say that qualities other than familial status are more important. What to look for Overall, experts recommend that you consider the abilities of candidates when choosing a personal representative. Due to the important duties of the position, choosing someone who is trustworthy, mature and honest are obvious. However, in addition, experts recommend considering candidates that have a legal or financial background, as a significant amount of the position entails dealing with bills, accounts and legal documents. Another quality that every good personal representative possesses is patience. Since the role often requires the personal representative to deal with family members that are hurt or upset about the death and choices regarding the division of the estate, someone with good conflict resolution skills and significant patience is especially well suited. Finally, every personal representative should ideally be very available. Since the role requires a significant amount of time, your candidate should have a lifestyle that would allow them sufficient time to adequately carry out the duties. Also, it is ideal that you would choose someone living close to you or at least within the same state, as personal representative is not a job that can be done remotely. Aside from the qualities of your candidates, you should also consider how complex your estate is. If it is very large or has property is other states, it may raise special issues that put the management of it outside the abilities of a layperson. In such cases, it may be best to appoint an attorney experienced with estate administration issues to ensure that it is properly managed. Speak to an attorney For additional guidance in choosing a good personal representative, speak with an estate planning attorney. An attorney can walk you though the needs of your estate and offer recommendations as to the type of person that would best be able to fill the role. Read More
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An introduction to will contests under Michigan law

On behalf of Charles Turnbull at O’Reilly Rancilio P.C. A person with legal interest in a deceased loved one’s estate can object in court to a will on several grounds. Usually when a loved one passes away, the terms of the will are carried out relatively smoothly through official administrative and court procedures in Michigan. Unfortunately, there are times when the terms of a will or the circumstances surrounding its execution raise concern or suspicion, putting the will’s validity into question. The way to have a will declared valid and its terms carried out (probated) is to file it with the court register for informal administration or in state probate court for formal administration. An interested person, usually someone who has been disinherited by the will in question or who as a relative would be entitled to a larger share of the estate under the law if there had been no will, may file an objection in writing with the court if he or she believes grounds exist to have the will declared invalid. This kind of lawsuit is often called a will contest. One important basis upon which to contest a will in Michigan is lack of testamentary capacity. The testator (person making the will) must be a legal adult and have sufficient mental capacity for purposes of executing a will at the time of signing. Incapacity might be shown by drug use, the symptoms of mental illness, insane delusion, the effects of medication, memory loss or other similar evidence. Testamentary capacity requires that the testator understand the nature and effect of making a will, that the act of executing a will results in disposition of property after death, the nature of his or her property and who the close family members are that would normally inherit that property. Another basis for contesting a will that goes to the testator’s state of mind is undue influence. Undue influence means the testator experienced coercive pressure from a person of trust – pressure so extreme that the testator effectively lost his or her own free will and drafted the will in a way he or she otherwise would not have, such as by disinheriting a loved one in favor of an unexpected or surprising choice of beneficiary, usually the person exerting the undue influence. Michigan law also allows will contests based on: Improper execution such as having not met form, signature and witnessing requirements, or the requirements of a valid holographic (handwritten) will Fraud Duress Forgery Lack of testamentary intention Mistake Revocation such as by physical destruction or execution of a later valid will that replaces the earlier one Anyone who is considering whether a will should be contested or who faces a contest over a will he or she filed for probate should speak as soon as possible with an experienced estate litigation attorney. Legal counsel can advise the individual of the various legal options available. Legal representation can be important as probate law is complicated procedurally, including requirements of filing, documentation, notice and deadlines. From their office in Sterling Heights, Michigan, the lawyers at O’Reilly Rancilio P.C. represent clients in southeastern Michigan in both sides of will contests and in other probate litigation as well as out-of-state people with interests in Michigan estates. Read More
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