6.1Early Scheduling Conference
“At any time after the commencement of the action, on its own initiative or the request of a party, the court may direct that the attorneys for the parties, alone or with the parties, appear for a conference. The court shall give reasonable notice of the scheduling of a conference. More than one conference may be held in an action.” MCR 2.401(A).1
See Section 5.1(F) for information on ESI conferences and Section 5.1(G) for information on final pretrial conferences.
Setting an early scheduling conference may serve the following collective purposes:
•To consider whether jurisdiction and venue are proper;
•To consider whether the case is frivolous;
•To decide whether an alternative dispute resolution (ADR) process is appropriate2 and to discuss possible methods of ADR;
•To consider the complexity of the case and to enter a scheduling order;
•To consider issues associated with disclosure, discovery, preservation, and claims of privilege of ESI (electronically stored information), including the timing of disclosures under MCR 2.302(A) and the staging and the modification of the extent of discovery;
•To identify and simplify the issues;
•To discuss estimated length of discovery and trial;
•To discuss amendments of pleadings;
•To discuss admissions of fact and documents;
•To discuss the pretrial order;
•To propose limitations on the number of expert witnesses and discuss disclosure and discovery periods for experts and expert reports;
•To discuss consolidation of actions, separation of issues, and the order of trial when some issues will be tried by the jury and some issues will be tried by the court;
•To discuss the possibility of settlement;
•To discuss whether various alternative dispute resolution (ADR) methods would be appropriate for the case and the mechanisms available to provide ADR services;
•To identify witnesses actually testifying at trial;
•To discuss the estimated length of trial;
•To determine whether MCR 2.203(A) has been satisfied (joinder of claims); and
•To discuss any “other matters that may aid in the disposition of the action.” MCR 2.401(B)(1)(a)-(r).
Committee Tip:
•It is also helpful to discuss things such as whether jurors may take notes, whether jurors may ask questions, the exhibit marking process, motions in limine (sometime before jury selection), the voir dire process, and proposed jury instructions.
Attorneys, either alone or with the parties, may be ordered to participate in an early scheduling or pretrial conference. MCR 2.401(A); MCR 2.401(F) (not applicable to early scheduling conferences). The order may specify that the attorneys who intend to try the case must be present. See MCR 2.401(E). The attorney must be prepared and have the authority to fully participate in the conference. Id. The conference may be held in chambers or by conference call. See MCR 2.402.
Where the court expects meaningful discussion of settlement, the court may require the presence of attorneys, parties, representatives of lien holders, representatives of insurance carriers, or other persons. MCR 2.401(E)-(F). The court cannot designate who will be a party’s representative. Kornak v Auto Club Ins Ass’n, 211 Mich App 416, 422 (1995). But see MCR 2.401(F)(2), which provides that in a pretrial conference, the court may require the availability of a specified individual as long as the order authorizes the use of a substitute who has the same information and authority. The conference may be held in chambers or by conference call. See MCR 2.402. “The court’s order may specify whether the availability is to be in person or by telephone.” MCR 2.401(F).
A party may be defaulted or a dismissal may be ordered for the failure of the party, or the party’s attorney or representative, to attend a scheduled conference, or for lacking the information and authority necessary to effectively participate in all aspects of the conference. MCR 2.401(G)(1). However, if manifest injustice would result from an order of default or dismissal, or the failure was not due to the culpable negligence of the party or the party’s attorney, the court may excuse the failure and enter a just order. MCR 2.401(G)(2)(a)–(b). “The court may condition the order on the payment by the offending party or attorney of reasonable expenses as provided in MCR 2.313(B)(2).” MCR 2.401(G).
A party cannot be defaulted based solely on a representative of the party’s insurance company refusing to make a settlement offer. Henry v Prusak, 229 Mich App 162, 170 (1998).
A party represented by counsel is not required to appear in person for a civil proceeding unless he or she has been ordered by the court or subpoenaed to appear. Rocky Produce, Inc v Frontera, 181 Mich App 516, 517-518 (1989) (the trial court erred in entering a default judgment against the defendant, who was represented by counsel, for failing to appear at trial absent a subpoena or court order).
Committee Tip:
Settlement conferences are typically set 1-14 days before trial but may be set at any time. They may last from 15 minutes to all day depending on the case. For this reason, it is important to determine the scope of a settlement conference at a pretrial conference.
When creating a scheduling order, the court must take into consideration:
•Nature and complexity of the case;
•Number and location of the parties;
•Number and location of the witnesses;
•Extent of expected and necessary discovery; and
•Availability of reasonably certain trial dates. MCR 2.401(B)(2)(b).
Generally, the court should only enter a scheduling order after having “meaningful consultation with all counsel of record.” MCR 2.401(B)(2)(d). However, if the court enters a scheduling order without providing advance consultation, a party has 14 days to file and serve a written request for an amendment of the scheduling order. MCR 2.401(B)(2)(d)(i). The court must reconsider its decision and “either enter a new scheduling order or notify the parties in writing that the court declines to amend the order.” MCR 2.401(B)(2)(d)(ii). The reconsidered decision must be made within 14 days after receiving the request. Id.
If the court concludes that a scheduling order will “facilitate the progress of the case,” it must “establish times for events and adopt other provisions the court deems appropriate, including
(i) the initiation or completion of an ADR process,
(ii) the amendment of pleadings, adding of parties, or filing of motions,
(iii) what, if any, changes should be made in the timing, form, or requirement for disclosures under MCR 2.203(A),
(iv) what, if any, changes should be made to the limitations on discovery imposed under these rules and whether other presumptive limitations should be established,
(v) the completion of discovery,
(vi) the exchange of witness lists under [MCR 2.401(H)(2)(h)], and
(vii) the scheduling of a pretrial conference, a settlement conference, or trial.” MCR 2.401(B)(2)(a)(i)-(v).
While “trial courts may issue scheduling orders to establish times for events including filing of motions” under MCR 2.401(B)(2)(a)(ii), “the failure to file a timely brief in response to a dispositive motion is not, by itself, grounds for dismissal as a sanction.” Cleveland v Hath, ___ Mich App ___, ___ (2024) (cleaned up).
The scheduling order may also include provisions related to initial disclosure, ESI, claims of privilege, and preserving discoverable information. MCR 2.401(B)(2)(c).
A dismissal under MCR 2.401(G) is reviewed for an abuse of discretion. Schell v Baker Furniture Co, 232 Mich App 470, 474 (1998).
The Court of Appeals “reviews for an abuse of discretion a trial court’s decision to decline to entertain motions filed after the deadline set forth in its scheduling order.” Kemerko Clawson, LLC v RxIV Inc, 269 Mich App 347, 349 (2005).