Discovery in Criminal Cases--criminal records

In People v Sluck, Unpub Per Curiam, (#302215, 11/1/2012) the Court of Appeals held that a prosecutor can be compelled to compile a list of its own witnesses’ criminal records by a review of its own files. In Sluck the defendant had relied on MRE 6.201(A) and requested, in part, that the prosecution disclose the complainant’s criminal history; the prosecuting attorney indicated at the motion hearing that her office had the information in its possession.

Discovery in criminal cases is governed by MCR 6.201.  

MCR 6.201(A), titled “Mandatory Disclosure,” provides in relevant part: [i]n addition to disclosures required by provisions of law other than MCL 767.94a, a party upon request must provide all other parties . . . * * * (4) any criminal record that the party may use at trial to impeach a witness; [and] (5) a description or list of criminal convictions, known to the defense attorney or prosecuting attorney, of any witness whom the party may call at trial . . . . [Emphasis added.]  Because disclosure under MCR 6.201(A) is mandatory, when a party requests information under the court rule, that information must be provided to the requesting party. People v Laws, 218 Mich App 447, 454-455 (1996).

This includes the possibility of juvenile adjudications.  Although not generally admissible at trial, records of juvenile adjudications of a witness other than the accused may be admissible at a criminal trial under MRE 609(e) if “conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission is necessary for a fair determination of the case or proceeding.” Crimes “admissible to attack the credibility of an adult” are covered by MRE 609(a), and are defined as those crimes an essential element of which is dishonesty or false statement, or those crimes an essential element of which involves theft, are punishable by over a year in prison, and which have “significant probative value on the issue of credibility.” People v Parcha, 227 Mich App 236, 241-242 (1997).   And, necessarily, a trial court must have access to criminal records or juvenile adjudications in order to perform its gate-keeping function to determine if they are admissible under MRE 609. Laws, 218 Mich App at 452 (a trial court may conduct an in-camera review to determine if evidence is discoverable); People v Small, 467 Mich 259, 264 (2002), quoting MCL 768.29 (“[i]t shall be the duty of the judge to control all proceedings . . . and to limit the introduction of evidence . . . to relevant and material matters . . .”).

On appeal the people argued in Sluck that Elkhoja II, infra and the LEIN statute prohibited the people from conducting a lien search in behalf of the defendant.  In People v Elkhoja, 658 NW2d 153 (2003) (Elkhoja II), the Supreme Court issued an order that adopted the dissent in People v Elkhoja, 251 Mich App 417 (2002) (Elkhoja I) that in conjunction with MCL 6.201(A)(5), and the LEIN statute a prosecutor cannot be compelled to conduct a LEIN search on behalf of a defendant.  However, the Court of Appeals in Sluck held that this does not prevent the trial court from compelling a prosecutor to compile a list of its own witnesses’ criminal records by review of its own files without resorting to an independent search of the LEIN database. Records of criminal convictions, unearthed by the prosecution in prior cases, are “known” to the prosecution for purposes of MCR 6.201. To hold otherwise would allow prosecutors to remain willfully ignorant of valuable impeachment evidence to which defendants are otherwise entitled.

Supreme Court Briefs Filed in US Airways, Inc. v. McCutchen---Guest blog by Emily Hootkins.

November 9, 2012 | Posted by Emily Catherine Hootkins, ERISA Litigation Group, Alston & Bird.

Briefs have been filed, the date for oral argument is rapidly approaching, and the parties are gearing up to face the Supreme Court in this year’s hot ERISA reimbursement case of US Airways, Inc. v. McCutchen. To briefly recap the facts, in McCutchen the plan sued under ERISA § 502(a)(3) for full reimbursement of medical expenses after a participant recovered limited damages related to injuries sustained in a car accident. The District Court granted summary judgment to US Airways, as plan administrator, based on language in the plan allowing full reimbursement of any monies recovered by the participant. No. 2:08-CV-1593, 2010 WL 3420951 (W.D. Pa. Aug. 30, 2010). On appeal, the Third Circuit vacated and remanded. 663 F.3d 671 (3d Cir. 2011). Citing Amara, the Third Circuit rejected the plan’s claim for full reimbursement by finding that ERISA § 502(a)(3) incorporates traditional equitable defenses. Id. at 678-79. Looking at the facts of the case, the Third Circuit concluded that requiring the participant to provide full reimbursement to the plan (without allowing offset for his attorneys’ fees and expenses) would be “inappropriate and inequitable relief.” Id. at 679.

The Supreme Court granted US Airways’ petition for certiorari on June 25, 2012. The question presented is: “Whether the Third Circuit correctly held--in conflict with the Fifth, Seventh, Eighth, Eleventh, and D.C. Circuits--that ERISA Section 502(a)(3) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even where the plan’s terms give it an absolute right to full reimbursement.”

On August 29, 2012, US Airways filed its brief on the merits, arguing “Section 502(a)(3) does not empower courts to use free-floating equitable principles to rewrite benefit plans.” (Pet’r’s Brief p. 4.) US Airways gives three rationales for its position. First, § 502(a)(3) only authorizes appropriate equitable relief to “enforce . . . the terms of the plan” and McCutchen’s approach would improperly “obliterate[]” the plan terms. (Id.) Second, the equitable relief sought by US Airways (an equitable lien by agreement) requires a court to enforce the actual agreement of the parties, which allows full reimbursement, rather than rewrite the parties’ agreement. (Id.) Third, US Airways argues that McCutchen’s approach conflicts with the goals of ERISA by making liabilities unpredictable. (Id.) The Third Circuit’s decision is characterized as a threat to the stability of self-funded ERISA plans, as it would discourage employers from offering benefits yet encourage gamesmanship by plan participants in the structuring of settlements. (Id. at pp. 42-50.)

Respondents address these arguments and others in their brief on the merits filed on October 18, 2012. They argue that U.S. Airways’ approach is “neither ‘appropriate’ nor ‘equitable’” as it ignores principles of unjust enrichment in favor of “rote enforcement of contract terms.” (Resp’ts’ Brief p. 2.) Respondents maintain that the Third Circuit’s approach is consistent with how courts would have treated US Airways’ claim in the days of the divided bench, where an insurer’s subrogation claims were limited to a pro rata share of a recovery. (Id. at pp. 13-25.) Further, in equity, Respondents argue that the common fund rule requires that US Airways pay its proportional share of the fees and costs incurred in obtaining the damages recovery. (Id. at pp. 26-32.)

Responding to policy concerns, Respondents argue “the plans have not offered a scintilla of actual evidence that their apocalyptic vision of life under the Third Circuit’s approach will come to pass.” (Id. at p. 48.) “If anything, there is every reason to believe that Petitioner’s full-reimbursement approach would increase litigation costs by making it less likely that tort claimants would be willing to settle cases.” (Id. at p. 54.)

These contentious briefs confirm that this is a Supreme Court case worth following. Many ERISA plans contain “subrogation” or “reimbursement” provisions, and how the Supreme Court resolves the question of whether “equitable defenses” can limit a plan’s recovery under § 502(a)(3) is likely to have a far-reaching impact on related reimbursement and underlying tort litigation.

Oral argument in this case is set for Tuesday, November 27, 2012.

Attorney Fees--Determining the number of hours reasonably expended.

In Adair v State of Michigan, __ Mich App __ (#230858, 11/6/2012) the Court of Appeals held that Plaintiffs failed to carry their burden of proving the number of hours reasonably expended in the litigating of their claim.

The party requesting an award of attorney fees bears the burden of proving the reasonableness of the fees requested. Smith, 481 Mich at 528. Smith establishes an analytical framework to guide the lower courts in the methodology of determining what constitutes a “reasonable fee.” In general terms, the Smith framework requires a trial judge to determine a baseline reasonable hourly or daily fee rate derived from “reliable surveys or other credible evidence” showing the fee customarily charged in the locality for similar legal services. Id. at 530-531, 537. Once the trial judge has determined this hourly rate, the judge must multiply this rate by the reasonable number of hours expended in the case. The product of this calculation serves as the “starting point for calculating a reasonable attorney fee.” Id. at 531, 537. Finally, the trial judge may make up-or-down adjustments to the fee based on certain factors enumerated in Rule 1.5(a) of the Michigan Rules of Professional Conduct and Wood v DAIIE, 413 Mich 573 (1982), and any additional relevant factors. Smith, 481 Mich at 529-531, 537.

In determining the number of hours reasonably expended, the party requesting attorney fees has the burden of supporting their claimed hours with evidentiary support, including detailed billing records, which the opposing party may contest for reasonableness. Smith, 481 Mich at 532; Augustine v Allstate Ins Co, 292 Mich App 408, 432 (2011). An itemized bill of costs by itself is insufficient to establish the reasonableness of the hours claimed. Petterman v Haverhill Farms, Inc, 125 Mich App 30, 33 (1983). Indeed, the trier of fact is not required to accept it on its face, id.; nor is the trier of fact required to accept an attorney’s representation that the hours identified in the bill of costs were reasonably expended, Sturgis Savings and Loan Ass’n v Italian Village, Inc, 81 Mich App 577, 584 (1978); see also Augustine, 292 Mich App at 423. Rather, the fee applicant must demonstrate by documentation or specific testimony or both that the time identified as expended on a billable item was actually and reasonably expended. Augustine, 292 Mich App at 432-434; Petterman, 125 Mich App at 33.