Property Lawsuits in Northern Michigan
A large portion of my property law work involves litigation. I have had an active litigation practice in Traverse City and northern Michigan since 2004, and the last few years have been almost exclusively property law and construction matters. So, what does a lawsuit in northern Michigan over a property dispute look like? While every case is different, this article provides an overview of the timeline of a lawsuit. Note that the timelines are based on my experiences in the 13th Circuit Court (Antrim, Leelanau, Grand Traverse Counties); while most courts follow the same pattern, I’ve found other circuits to be more generous with the time allotted for each suit.
Step 1: The Pleadings. A lawsuit begins with the filing of a summons and a complaint; the defendant responds to the complaint with an answer. The summons is filled out by a clerk, and it provides notice to the defendant that they are being sued. The complaint is the document that describes the lawsuit. Sometimes a complaint is relatively short, sometimes it is very long. Michigan requires that the complaint be numbered paragraphs setting forth the facts of the dispute between the parties. Usually general factual allegations are made, and then facts specific to each legal cause of action (trespass, partition, et. cet.) are listed.
The complaint is served on each defendant either by mail or in person by a process server. The defendant must file an answer within 21 or 28 days of receiving the complaint (depending on how it is served). The answer will respond to each factual allegation in one of three ways: “yes”, “no”, or “I don’t know”. The legal terms for these responses are admit, deny, or “lack knowledge or information sufficient to form a belief as to the truth” of the allegation. The defendant will also likely file affirmative defenses, which are legal defenses to the answer.
A defendant may file a counter-claim against the plaintiff, or a cross-claim against other defendants (if any). Those will be answered by the responding party.
Step 2: Discovery and Motions. Once the parties have filed their pleadings, the court will send out a scheduling order. This order sets deadlines for the case. A key deadline is the date by which discovery must be completed. Discovery is the process by which the parties may gather evidence for the case. It includes written discovery (interrogatories and requests to produce documents), depositions (testimony under oath by parties or witnesses), and site inspections, among other techniques.
Thorough discovery of a matter is essential to preparing for trial. Unfortunately, discovery is usually the most expensive part of the case. All the methods listed above take a lot of time. For most property cases, attorneys charge by the hour, so the bill can really add up. Unless a party has very deep pockets, the attorney and client must make some choices about how much time and effort to put into discovery. Of course, if the other party sends out many requests or depositions, you will be forced to respond.
Motions are often filed during this discovery period. They can range from disputes over the discovery process to dispositive motions, which seek to dismiss all or party of a case (called motions for summary disposition in Michigan, and motions for summary judgment in federal courts and the rest of the country). Generally, cases where the facts are generally not in dispute are appropriate for dispositive motions. In my experience, most property litigation does not fall in this category, and so a dispositive motion will not end the case.
Step 3: Mediation. At some point, either before the discovery deadline or soon thereafter, the parties will undergo facilitative mediation. All cases in the 13th circuit are ordered to mediation, and all parties must attend in person—no exceptions. Mediation is a process designed to explore resolutions which the parties can agree upon. A mediator (a trained, neutral third party who does not issue any ruling son the case) will guide the mediation. I have found mediation to be very helpful in settling cases (and keep in mind that over 99% of civil cases do settle before trial). The reason is that the law often limits how the court can rule on a case, such that even the “winning” party may not like the ruling. In mediation, the parties can explore options which might work for them that a court could otherwise not give. For more information on mediation, see these excellent resources.
Step 4: Settlement Conference and Trial. If the case has not settled or been decided by a dispositive motion, the Court will conduct a settlement conference and trial. As with mediation, in the 13th Circuit all parties must attend the settlement conference in person. The judge will meet with the parties and explore possible settlements. The local court takes these conferences very seriously—expect to be there all day!
If the case is not resolved, it will proceed toward trial. Trial can be before the judge (a bench trial) or a jury (six jurors for civil cases). The judge decides the law that applies to the case; if a jury is involved, the jurors decide the facts. The trial begins with jury selection, then opening statements. The plaintiff will put on its evidence (in the form of witnesses), then the defendant. Both parties will provide closing arguments. Trials can take as little as one day, or up to several weeks. After the evidence has been presented, the judge or jury will render a verdict. This verdict will turn into a judgment in 21 days unless one of the parties appeals.
What does it cost? I get it, this is an important question! It is also almost impossible to answer, unfortunately. I have had lawsuits for less than $5,000 and more than six figures. While the expected dollar amounts in dispute and the expected witnesses factor into the cost, the unknown is how the other side will respond. If every matter is contentious or disputed, the costs can rise very quickly. It is good for the client and attorney to have an early, frank conversation regarding costs; while I don’t have a crystal ball, it is important to me to know my client’s budget and expectations so we can plan accordingly.
Conclusion. Every lawsuit has an element of unpredictability. Knowing the elements of the suit can help clients plan, and hopefully reduce anxiety. If you have been sued regarding a property or construction matter, or are exploring whether you need to sue to protect your property rights, please contact me.