Clash of the Titans

A recent post by mythago reminded me of a couple of "slap my head in astonishment" moments in the practice of law....

First, I received an out-of-the-blue call from a lawyer, the day before trial. He wanted some tips for an opening statement for a single vehicle accident case, with the passenger suing the driver.

How did the accident happen?

The car went off the road.

Why did the car go off the road?

I dunno. I suppose she was driving too fast for the road conditions.[FN1]

What are your client's injuries?

She has a closed head injury.

What effect does that have on her life?

I dunno. I have it written down here somewhere.

Is there a significant impact on her life - one that would meet the Kreiner threshold?[FN2]

I dunno. I'm not sure.

Does she have any other injuries?

She has several herniated discs.

How does that affect her life?

She can't lift more than 20 pounds.

[Brief discussion of the Kreiner decision.]

Who is your opposing counsel?

I dunno. They changed it three times.

You know, it isn't that I want to give any credibility to those who say plaintiff's lawyers are lazy... but c'mon. (As I'm sure you're shocked to learn, I didn't get a follow-up call claiming victory, so the tort reformers can probably get only so much mileage out of this one.)

Then I received a request from a lawyer to respond to a summary disposition motion. He needed the answer quickly because the defense lawyer hadn't bothered to provide notice as required by court rule, but he didn't want to postpone the hearing. The defense lawyer presented arguments under MCR 2.116(C)(1), pursuant to which summary dispostion may be granted where "The court lacks jurisdiction over the person or property." She then argued that this rule applied because there had been prior litigation in the same court between the parties, presenting sort of a jumbled res judicata / collateral estoppel argument. She never did explain why the Court had no personal jurisdiction over her client, who resided in the state and county, in relation to litigation pertaining to acts he allegedly committed in that state and county.

She also presented an argument under MCR 2.116(C)(8), pursuant to which summary disposition may be granted where "The opposing party has failed to state a claim on which relief can be granted." Ordinarily a court looks only at the pleadings when evaluating motions under this subrule. Only she didn't complain about any defect in the pleadings, instead arguing that under the facts of the case she would prevail.

To her credit, she also claimed a right to summary disposition under MCR 2.116(C)(10), which permits summary disposition where "Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." But motions under that subrule must be supported by admissible evidence - and she provided nothing but her own say-so in support of the motion.[FN3] (Even had she submitted an attorney affidavit to back up her say-so, that would not have met the requirements of the court rule.)

I am still wondering how she managed to start at subrule 1, and get all the way up to subrules 8 and 10, without noticing that her first argument belonged under subrule 6 ("Another action has been initiated between the same parties involving the same claim") or 7 ("The claim is barred because of release, payment, prior judgment ... or other disposition of the claim before commencement of the action."). Better yet, the prior judgment had a broad "release of all claims" clause which arguably applied, and which she didn't even bother to bring to the attention of the court.

(I would expect that, if she ultimately loses, the tort reformers will attempt to blame the jury.)

In any event, I vote for pairing these two up in some form of lawyer "grudge match".

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Footnotes

FN1: Another possible answer to this question, which would only be slightly less acceptable, would be "To skid to the other side."

FN2: Under Michigan's No Fault law, to bring a third party lawsuit you must satisfy the "No Fault threshold" as set forth by statute, and as rewritten by the Michigan Supreme Court in a recent decision called Kreiner v Fischer.

FN3: MCR 2.116(G)(6) provides "Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on subrule (C)(1)-(7) or (10) shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion."