November 25, 1997



97-06



Amendments of Rules 7.213 and 7.302 

of the Michigan Court Rules
___________________________________


     On order of the Court, notice of proposed changes having
been provided, and consideration having been given to the
comments received in response to that notice, the following
amendments of MCR 7.213 and 7.302 are adopted to be effective
January 1, 1998.

     [The present language is amended as indicated below.]

ICLE Editor's Note:

Rule 7.213 Calendar Cases

(A)  Pre-Argument Conference in Calendar Cases.

(1)  At any time before submission of a case, the Court of
     Appeals may direct the attorneys for the parties to
     appear in person or by telephone for a pre-argument
     conference.  The conference will be conducted by the
     court, or by a judge, retired judge or attorney
     designated by the court, known as a moderator.  The
     conference shall consider the possibility of
     settlement, the simplification of the issues, and any
     other matters which the moderator determines may aid in
     the handling of or the disposition of the appeal.  The
     moderator shall make an order that recites the action
     taken at the conference and the agreements made by the
     parties as to any of the matters considered, and that
     limits the issues to those not disposed of by the
     admissions or agreements of counsel.  Such order, when
     entered, controls the subsequent proceedings, unless
     modified to prevent manifest injustice.  

(2)  All civil cases will be examined to determine if a
     pre-argument conference would be of assistance to the
     court or the parties.  An attorney or a party may
     request a pre-argument conference in any case.  Such
     a request shall be confidential.  The pre-argument
     conference shall be conducted by

(a)    the court, or by a judge, retired judge or
     attorney designated by the court;

(b)    if the parties unanimously agree, a special
     moderator designated by the court or selected by
     unanimous agreement of the parties.  The special
     moderator shall be an attorney, licensed in
     Michigan, who possesses either mediation-type
     experience or expertise in the subject matter of
     the case.  The special moderator may charge a
     reasonable fee, which shall be divided and borne
     equally by the parties unless agreed otherwise and
     paid by the parties directly to the moderator.  If
     a party does not agree upon the fee requested by
     the moderator, upon motion of the party, the Court
     of Appeals shall set a reasonable fee.

When a case has been selected for participation in a
pre-argument conference, participation in the
conference is mandatory; however, the Court of Appeals
may except the case from participation on motion for
good cause shown if it finds that a pre-argument
conference in that case would be inappropriate.

(3)  Any judge who participates in a pre-argument conference
     or becomes involved in settlement discussions under
     this rule may not thereafter consider any aspect of the
     merits of the case, except that participation in a
     pre-argument conference shall not preclude the judge
     from considering the case pursuant to MCR
     7.215(H) [Administrative Order 1994-4].  

(4) - (6)  [Unchanged.]

(B) – (E) [Unchanged.] 



Rule 7.302 Application for Leave to Appeal

(A) – (B) [Unchanged.] 

C.   When to File

(1) – (4) [Unchanged.] 

     (5)  Effect of Appeal on Decision Remanding Case.  If a
          party appeals a decision which remands for further
          proceedings as provided in subrule (C)(4)(a), the
          following provisions apply:

(a)  If the Court of Appeals decision is a judgment
     under MCR 7.215[(E)](D)(1), a timely
     appeal stays proceedings on remand unless the
     Court of Appeals or the Supreme Court orders
     otherwise.

a.   If the Court of Appeals decision is an order other than a
               judgment under MCR 7.215[(E)](D)(1),
               the proceedings on remand are not stayed by an
               application for leave to appeal unless so ordered
               by the Court of Appeals or the Supreme Court.

(6) [Unchanged.] 

(D) – (G) [Unchanged.] 



STAFF COMMENT:  The January 1, 1998 amendment of MCR
7.213 modifies the procedure for pre-argument conferences in
the Court of Appeals.  Ordinarily, the conference will be
conducted by a judge or attorney selected by the Court of
Appeals.  However, the parties may agree to an alternative
procedure using a special moderator.  

In addition, MCR 7.302(C)(5) is amended to correct
cross-references to MCR 7.215.


The staff comment is published only for the benefit of the
bench and bar and is not an authoritative construction by
the Court.