MICHIGAN’S “FAST TRACK” APPROACH TO SUMMARY DISPOSITION APPEALS
The Michigan Court of Appeals is in the second year of its fast-track experiment for summary disposition appeals. Unless renewed, the experiment is set to expire at the end of 2006. The Administrative Order establishing and modifying the program is AO 2004-05, as amended in December 2005. A quick summary and the full version of the Administrative Order can be found at http://courtofappeals.mijud.net/resources/9090.htm. Here are the highlights: n The program applies only to appeals to the Court of Appeals arising “solely” from a grant or denial of summary disposition. Cases can be removed from the fast track upon motion. The Court encourages the use of the motion form available on its website, http://courtofappeals.mijud.net/pdf/SD_mot_rmv.pdf n The “fast track” program applies only in the Michigan Court of Appeals. Ordinary rules apply in Supreme Court appeals and in circuit court practice. n Appeals from summary disposition decisions are still subject to the 21-day deadline for an appeal. n To enable fast resolution of cases, these summary disposition appeals are not subject to the Court of Appeals’ settlement program. Accordingly, no docketing statement is filed in these appeals. n Briefing and transcript production are expedited, and briefs are shorter:
Action	Normal time	Fast-track requirement	Normal page limit	Fast-track page limits
Transcript production	Within 91 days of transcript order date	Within 28 days of transcript order date		[NB: if timely filed, the reporter is entitled to higher fees]
Appellant’s Brief	56 days after transcript production	56 days after filing of appeal	50 pages	35 pages
Appellee’s Brief	35 days after service (mailing) of appellant’s brief	28 days after service (mailing) of appellant’s brief	50 pages	35 pages
Reply Brief	21 days after service (mailing) of appellee’s brief	14 days after service (mailing) of appellee’s brief	10 pages	5 pages
Extension of time for brief	28 days by stipulation, 56 days by motion	14 days by motion
n Appellant is required to attach as an exhibit to the brief a copy of all briefs filed by that party in the summary disposition motion proceedings. Don’t forget any briefs in support of motions for reconsideration, etc. n I suggest you also attach as an exhibit the transcript of the motion hearing(s). This enables the Court to conduct its de novo review from a single set of documents. Otherwise, the transcript will be in the lower court record, but generally only one judge keeps that record and provides it to other judges only if they specifically request it (and they generally don’t make such a request). n Appellee is required to attach as an exhibit all briefs filed by that party, unless the appellant has already included them in his or her brief. If they have already been supplied as exhibits to appellant’s brief, appellee should note this in its brief. n Extension of time to file briefs is permitted by motion only (no stipulations). The court encourages the use of the motion form contained on its website: http://courtofappeals.mijud.net/pdf/SD_mot_ext.pdf ADDITIONAL TIPS (1) When filing or responding to a summary disposition motion in the trial court, I encourage you to attach as an exhibit to your summary disposition brief the entire deposition transcripts of all key witnesses that you are relying on. Many judges don’t like receiving a thick packet, it’s true, but you need to make your record. Twice in recent months I have dealt with cases where the trial attorney thought the issue would go a certain way, and attached only select pages of deposition transcripts. On appeal, we determined that the issues were broader and a slight change of direction was needed – yet the key testimony we wanted to cite to the Court of Appeals was contained in transcript pages that were not attached as exhibits. Whether you win or lose your motion, it is essential that the appellate attorney and the appellate court have as much ammunition as possible to rule in your favor. (2) In the Court of Appeals fast-track program, the parties can waive production of the transcript. Don’t do it. Even though you can waive the transcript, the Court of Appeals will still determine whether issues were waived or whether the judge’s decision was erroneous – considerations that require an examination of the transcript. The “waiver of transcript” rule was not well-thought-out, and is a trap. (3) If you are going to seek attorney fees or costs, or if the other side demands them, it is better to incorporate that into a single final judgment with the ruling on the summary disposition motion so only one appeal needs to be filed. (4) To file an appeal, you will need the following: (A) The court’s order; (B) copies of the motion briefs; (C) a copy of the court clerk’s docket printout after the final judgment is entered; (D) proof that the transcripts have been ordered. In addition, you pay a $375 filing fee at the Court of Appeals and a $25 fee to the circuit court clerk. See generally MCR 7.204. You will also file a jurisdictional checklist with the Court of Appeals (this is a preprinted court form). As noted earlier, unlike other cases, you will not need to file a docketing statement. (5) If you seek a stay pending appeal, or need an order setting an appeal bond, you must first file the motion in the trial court. The Court of Appeals will consider motions for bond or stay only if it has been preserved below. MCR 7.209(A)(2).
JAMES N. McNALLY Attorney at Law Specializing in Appeals Civil – Criminal – State – Federal – Workers Comp P.O. Box 13 St. Clair Shores, Michigan 48080-0013 (313) 378-6060					test