Appellate Practice Section

MDTC Appellate Practice Section

By: Phillip J. DeRosier, Dickinson Wright PLLC, and Trent B. Collier, Collins Einhorn Farrell P.C.
pderosier@dickinsonwright.com trent.collier@ceflawyers.com

Appellate-Practice Report

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Interlocutory Appeals in the Michigan Court of Appeals

Most appeals in the Michigan Court of Appeals are appeals as of right after the entry of a final judgment or order. But occasionally, a party may wish to challenge an interlocutory order – such as a discovery order, an order denying summary disposition, or an order regarding a pretrial motion in limine. With limited exceptions (such as an order denying governmental immunity), such orders are appealable only by leave of the Court.

When to File

MCR 7.205 governs applications for leave to appeal. To be timely, an application for leave to appeal must be filed within 21 days after entry of the order being appealed, or within 21 days after the entry of an order denying a timely motion for reconsideration or other relief from the order being appealed. MCR 7.205(A)(1)-(2). Depending on the circumstances, such as an impending trial, it may not be advisable to wait until the last day to file the application. When time truly is of the essence, the application should be filed as soon as possible. If action is required within 56 days, the application should be designated an “emergency” on the caption. See MCR 7.205(F)(1). A motion for immediate consideration should be filed if the order being appealed will have consequences within 21 days of the filing of the application. MCR 7.205(F)(2).

What to File

It is important to remember that unlike a claim of appeal, an application for leave to appeal is a full appeal brief on the merits. This means that it must comply with the rules applicable to an appellant’s brief. See MCR 7.212(C). Applications should be narrowly focused, typically raising one issue, maybe two, and should explain as concisely as possible why leave to appeal should be granted. In short, what was the plain error that the trial court committed, and why should the Court of Appeals correct it before trial?

As to the latter point, MCR 7.205 expressly requires an application for leave to appeal from an interlocutory order to set forth “facts showing how the appellant would suffer substantial harm by awaiting final judgment before taking an appeal.” See MCR 7.205(B)(1). In other words, why should the appeal be heard immediately as opposed to waiting until the end of the case? Some orders, such as orders involving preliminary injunctions or those denying discovery or the admission of critical evidence, lend themselves more readily to an argument that an immediate appeal is necessary. But

interlocutory appeals are certainly not limited to such orders. In an appropriate case, it might make sense to seek leave to appeal from an order denying summary disposition, such as if the motion raised a statute of limitations issue or some other legal issue that would dispose of the case in its entirety and avoid the need for discovery and a time- consuming and expensive trial.

It is also important to carefully consider what should be attached to the application. MCR 7.205(B) sets out the basics: the judgment or order being appealed and either the relevant transcript or, if it is not yet available, a court reporter certificate or statement by the appellant’s attorney that the transcript has been ordered. If the appeal is an emergency, consider expediting the transcript request and explaining in the application the status of that request. Alternatively, if the transcript is not crucial to the Court of Appeals’ review of the application, be sure to let the Court know that as well.

Also consider attaching other materials (key contract provisions, deposition testimony, etc.) that are critical for the Court’s review. It is important to remember that the Court of Appeals will not order the lower court record and will decide the application based on whatever the parties supply.

Available Relief

In seeking leave to appeal from an interlocutory order, parties should also keep in mind that the Court of Appeals has authority to enter a final decision at the application stage, in lieu of granting leave to appeal. See MCR 7.205(E)(2) (“The court may grant or deny the application; enter a final decision; [or] grant other relief.”). As a result, a party might consider making a specific request that the Court enter a peremptory order (e.g., granting summary disposition) as an alternative to granting leave to appeal.

Stays

Finally, it is important to remember that filing an application for leave to appeal, like claiming an appeal of right, does not automatically stay proceedings in the lower court. Again, there are exceptions, such as in appeals from orders denying governmental immunity. But in most cases, a party seeking a stay must first request it from the trial court, and then from the Court of Appeals if the trial court denies a stay. While there are no specific requirements for seeking a stay, the key is to show that harm would result without one. It also can’t hurt to explain why the opposing party would not be prejudiced by a stay. Typically, the Court of Appeals will consolidate the motion for stay with the application and decide them at the same time. If the application is granted, a stay will usually be granted as well.

A Primer on Formatting Electronic Documents for Michigan’s Appellate Courts

A recurring theme at Michigan’s Appellate Bench-Bar Conference has been that appellate lawyers need to format briefs to be read onscreen and on iPads. Michigan’s judges and justices are increasingly going paperless and they expect briefs to be

formatted appropriately. That means lawyers must file PDF copies of briefs and those PDFs should be bookmarked.

Fortunately, you need nothing more than Microsoft Word to produce a properly bookmarked brief (although bookmarking appendices may require additional software). There are two main ways to add bookmarks in Word: inserting one word bookmarks or using Word’s “Styles” to add headings.

1. Bookmarking with the “insert” function

To insert a one-word bookmark, begin by highlighting a term in your document. Click “insert” located in the upper left corner of the screen and then select “bookmark.”

You can then label the highlighted term—unfortunately, using only a single word—and select “add.” With that, you’ve added a bookmark. Repeat as necessary.

2. Bookmarking using Styles

Instead of using single-word bookmarks, you can also add bookmarks using Word’s Styles. Highlight a word, or series of words, and select “Heading 1” located in the upper right corner of the screen:

This text is now a “heading” that will automatically generate a bookmark. Word can add multiple layers of headings and, thus, multiple bookmarks. If you can’t find the heading level you need in the “Styles” box, select the text, then press control-shift-S and type the name of the heading level you want (e.g., “Heading 2” or “Heading 3”).

3. Keeping your bookmarks when you convert to a PDF

You’re now ready to convert your document to a bookmarked file. Michigan’s appellate courts only accept files in PDF or “portable document format.” Although there are programs that will convert your Word file to a PDF, Word itself should suffice.

Click the Windows icon located in the upper left of your screen, select “Save As” and then select “PDF or XPS.”

When a new dialog box opens, select “Options” and make sure that you have selected “Create bookmarks using.” If you created bookmarks with the “insert” function (the first option discussed above), select “Word bookmarks.” If you used headings, select “headings.”

Word will then save your document as a PDF with bookmarks. You’ll need to select a location in which to save your file. With that, you’ll have a bookmarked PDF of your brief.

4. What about appendices?

Michigan’s appellate judges want bookmarking in both briefs and appendices. For briefs, you can follow the methods outlined above. Appendices are a different matter. You’ll need software that will allow you to compile PDFs into a single file and then bookmark the beginning of each separate exhibit. Some examples of this software include Adobe Acrobat or Nitro PDF.

Although there may be a temptation to try to combine briefs and exhibits into a single PDF, the Michigan Supreme Court and Michigan Court of Appeals currently prefer to keep briefs and appendices separate.1 Filing briefs and exhibits separately might seem to create a need to switch back-and-forth between documents, but applications like iAnnotate allow multiple tabs onscreen. This feature allows users to easily switch from one electronic document to another while reading on an iPad.

See Frequently Asked Questions (FAQs), available at: http://courts.mi.gov/Courts/MichiganSupremeCourt/Clerks/ClerksOfficeDocuments/e- filing%20docs/TrueFiling%20FAQs.pdf (last visited September 5, 2016).

5. Using hyperlinks

The Michigan Supreme Court and Michigan Court of Appeals encourage the use of internal hyperlinks (which take the reader to another location in the same document) but discourage the use of external hyperlinks (which take the reader to a location outside the document).2 The rationale for this distinction is straightforward: the internet is a vast and sometimes dangerous place. External hyperlinks could lead your reader to malware or compromise the security of courts’ internal records. Internal hyperlinks have no such issues, since they only jump to another location in your document.

Hyperlinks are created in Word before you save your document as a PDF. Select the text you want to use as a launching point, click “insert,” and then “hyperlink.” In the dialog box that appears, a column on the left side includes various options under “Link to,” one of which is “Place in this document.”

Selecting “Place in this document” will open a dialog box of the headings or bookmarks you created using methods (1) or (2) above. By selecting a heading or bookmark, you will link the highlighted text to that destination:

6. The final step

There is a critical final step to this process. Before submitting your brief, read the PDF onscreen and make sure that navigation is easy. And given the likelihood that your brief will be read on an iPad, try reading and navigating through your own brief on an iPad, if possible. That will alert you to any dead links or unwieldy bookmarks.

7. The future of appellate briefs?

This process—bookmarking and hyperlinking—is a way to accommodate electronic reading of traditional appellate briefs. One of the breakout sessions at Michigan’s 2016 Bench-Bar Conference involved a discussion on how new mediums require lawyers to rethink how they present arguments in the electronic age. Although those strategies are beyond the scope of this article, practitioners should be sure to think about ways to make their briefs more user-friendly when read onscreen.

Categories: Volume 7-2

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