February 2, 2010

Civil Law

To begin a personal injury (torte reform) lawsuit in costs $150. Everything costs lots of money.

Because of Michigan no-fault car insurance, it’s extremely tough to win a personal injury case from a car accident. Your
own insurance carrier will pay your medical bills. Pay for out for wages because of injury would be 85% of gross pay with
a maximum of $36,000. Get insurance coverage for underinsured or uninsured motorists. Can sue if you die. Can sue
if you sustained permanent, serious disfigurement. Can also sue if sustained a serious impairment of a bodily function
(most litigated). If it affects you permanently in everyday life and your doctor has to be able to see it (closed head
injury). Not broken bones, whiplash, etc.

To start a case:

1. Hire a lawyer that will take it under 1/3 contingency (if you win, they get 1/3 of the award).

Begins with a pleading (this one is entitled – complaint) – a paper with plaintiff’s and defendant’s names and
the reason why they are suing.

State of Michigan
In the Circuit Court of Macomb County
Betty Smith and Roger Smith, Plaintiffs (the husband’s name is included even if not in car)
John Jones, Defendant
No. 10
NI (Automobile accident)
Hon: Judge (do not get to choose judge, pick of the computer)
(Each paragraph will be numbered)
Proximate cause – legal cause of accident
Wherefore the plaintiff demand a judgment in excess of $25,000 (do not want to put an exact amount on it)
The plaintiff demands a trial by jury.

Jury demand – asking for a jury trial

SCAO – the Michigan Supreme Court administrators office (online can see all forms allowed by lawyers in this state
including subpoenas and summons)

Husband’s own claim is for lack of consortium (sex). Not usually a large award.

The lawyer always signs the complain and all other papers, never the client.

In addition to the complaint, the lawyer will prepare a summons--preprinted with court name and person’s names
added. They are always preprinted and tells the defendant they are being sued and attached is the complaint that has
been filed against you. They have 21 days to answer if personally served or 28 days to answer if delivered by mail. This
is not a subpoena, the defendant doesn’t have to answer it, but if he doesn’t then the judgment can go to the plaintiff by
default.

Now the lawyer files paperwork with the county court building. Jury demand costs $80. All fees are paid by the
defendant, not the lawyer. The clerk will take the papers from the color coordinated folder in order by number.
 No. 10 1107 NI (case number in numeric order)

Hon: Miller (computer selected so each judge has an equal number of cases)

The clerk will endorse the summons with a seal for the circuit court of the county of Macomb, in the machine, from the
court and then gets delivered or service of process.

The different ways to serve process:

1. Service by mail – only certified mail with restricted delivery (may only be delivered to a specific person and
signed for) If not at home the postman will leave a card. Not very efficient.

2. Personal service – using a process server (anyone of adult age can be a process server, no license needed, only
need to touch the person with the papers, not hand to them)

3 Affidavit – a sworn statement that is signed by the process server and notarized along with a petition to the
judge for substitute (allowed to tape the summons to the front door or anyone of adult age can accept it.)

4. Hire a private detective -- Affidavit from private detective -- stating the many ways tried to serve it and the
judge can issue service by publication in the legal newspaper. This is legal if there is no forwarding address.

Once the summons is served, the defendant needs to take the papers to his insurance company. They will set up free
lawyer. Any personal injury case lawyer won’t sue if no insurance because of no chance of recovery. Home owner’s
insurance will cover any accident not behind a wheel of a car, such as a hunting accident.

An answer is a pleading to the charges by the defendant. Each paragraph is answered according to the same numbers
as the complaint. (Defendant admits same – for each paragraph that they agree with, or for a disagreement –
Defendant denies same for reason that it’s untrue, or for the injuries – defendant, having insufficient information upon
which to base an answer, neither admits nor denies same).

Affirmative defense – any surprises or past statute of limitation to sue.

Next the answer will be filed with the court with a copy to the plaintiff’s lawyer and that’s the first time the plaintiff’s
lawyer will know which lawyer is representing the defendant.

The court will issue court orders to issue some deadlines. Both sides will exchange their witness lists within 30 days. If
not on the list, cannot be called. “No surprises.”

Discovery –deadlines to find out what each person’s case is about. Each side will know about the opponent’s side,
there can be no secrets or surprise witnesses in civil law. 
TYPES OF DEPOSITIONS:

1. Deposition – sworn testimony taken by a certified court reporter outside of the courtroom (usually the
lawyer’s office).

Pleading, Notice of taking Deposition:

To John Jones

Address

Dear Sir,

Please be advised I will be taking the deposition of your client , John Jones in my offices on Date and Time. You
are invited to intend.

If no show for the deposition, on Monday (motion day at Macomb Circuit Court), tell the judge about it and he will set a
date, plus fine the defendant for wasting the plaintiff’s lawyer time and money he had to pay a court reporter. If still no
show, the defendant will automatically loose the case.

2. Interrogatories – a series of type written questions which are sent to the other side. They have to be filled out
in writing and sworn to as being true by a notary republic, get 28 days to come up with the answers. (For cases such as a
divorce where property is involved). Can also be used in personal injury. List every witness you plan on calling, along
with there address and a two paragraph description as to what you believe you will be testifying to.

3. Notice to produce documents – to be used for Xerox copies of financial documents.

4. IME – Independent Medical Examination – Defendant has a right to an IME. A form of discovery. To have their
own doctor examine the plaintiff.

After discovery, the judge will send the case to Mediation Evaluation to settle the case. (Like a pre-trial in a criminal
case.) The plaintiff’s lawyer the defense lawyer both have to make up a summary of their case, pictures, medical
evidence, etc. And it will be sent to board of evaluators. There will be three of them, a defense lawyer, a defense
lawyer and a neutral party will try to come to a dollar amount settlement agreement. If the offer is rejected, then you
risk the verdict against you or getting less. Here’s the gamble, if you get less than what was offered then the defendant
will have to pay actual attorney fees of $200/hour from the date of the mediation all the way through the end of the
trial (could be $30,000). If the plaintiff has to pay more than the offered amount then the plaintiff has to pay his fees.

If don’t come to an agreement then the judge’s facilitator, a lawyer who went to school to learn settlement
techniques will try to do it again. They will bang heads and try anything to settle a case. If still cannot settle, then it will
go to court with a jury of 6 and a majority rule outcome.