balance factors in Michigan

2023The nonexhaustive list of Vicencio factors include: (1) whether the violation was wilful or accidental; (2) the party’s history of refusing to comply with previous court orders; (3) the prejudice to the opposing party; (4) whether there exists a history of deliberate delay; (5) the degree of compliance with other parts of the court’s orders; (6) attempts to cure the defect; and (7) whether a lesser sanction would better serve the interests of justice. [Vicencio, 211 Mich App at 507 .] “[I]t is imperative that the trial court balance the factors and explain its reasons for imposing such a grave

2023In contemplating severe sanctions for failure to comply with discovery orders, a trial court must consider the following unexhaustive list of factors: (1) whether the violation was willful or accidental; (2) the party’s history of refusing to comply with previous court orders; (3) the prejudice to the opposing party; (4) whether there exists a history of deliberate delay; (5) the degree of compliance with other parts of the court’s orders; (6) attempts to cure the defect; and (7) whether a lesser sanction would better serve the interests of justice. [Vicencio 211 Mich App at 507 ; see also Woo

2021The court must “evaluate on the record other available options before concluding that a drastic sanction is warranted.” Frankenmuth Mut Ins Co, 193 Mich App at 397 .

2019The Barker Court, in providing guidance for evaluating the prejudice factor, identified three defendant interests that the right to a speedy trial was designed to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. at 532 .

1999This approach closely tracks the federal rule that “in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state claims.” Carnegie-Mellon Univ v Cohill, 484 US 343, 350 ; 108 S Ct 614 ; 98 L Ed 2d 720 (1988).

1999This approach closely tracks the federal rule that “in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state claims.” Carnegie-Mellon Univ v Cohill, 484 US 343, 350 ; 108 S Ct 614 ; 98 L Ed 2d 720 (1988).

1992The gratuitous, and assertedly fortuitous effects, if any, of "monopoly" do not alter this principle. [48] Zahn v Los Angeles Bd of Public Works, 195 Cal 497, 512; 234 P 388 (1925). [49] While the absence of a factual record prevents determination of the question, Adams Outdoor may also sustain an incremental, but substantial financial loss by virtue of the city's ordained 300-square-foot limit for off-premises billboards, § 8.36(2).

1982We agree with the majority that People v Wilkins, 82 Mich App 260 ; 266 NW2d 781 (1978), establishes the proper balance of factors in determining whether similar-acts evidence is more probative than prejudicial.

1982We agree with the majority that People v Wilkins, 82 Mich App 260 ; 266 NW2d 781 (1978), establishes the proper balance of factors in determining whether similar-acts evidence is more probative than prejudicial.

1982The Court of Appeals, in relying on People v Oliphant, 399 Mich 472, 490 ; 250 NW2d 443 (1976), and other Michigan cases, stated that a trial court in determining whether similar acts are too prejudicial, should consider many factors, inter alia, “the availability of less prejudicial sources of proof, the necessity of the evidence to prove an element of the prosecutor’s case, the defendant’s theory of the case, the tendency of the evidence to inflame the passions of the jury, and its potential for confusing issues in the case”. 82 Mich App 270 -271.

1982The Court of Appeals, in relying on People v Oliphant, 399 Mich 472, 490 ; 250 NW2d 443 (1976), and other Michigan cases, stated that a trial court in determining whether similar acts are too prejudicial, should consider many factors, inter alia, “the availability of less prejudicial sources of proof, the necessity of the evidence to prove an element of the prosecutor’s case, the defendant’s theory of the case, the tendency of the evidence to inflame the passions of the jury, and its potential for confusing issues in the case”. 82 Mich App 270 -271.

1979This view is supported by People v Roberson, 90 Mich App 196, 202 ; 282 NW2d 280 (1979), wherein this Court said: "Although the trial judge did not discuss the three criteria on the record, we do not read the prior case law as requiring a finding regarding these factors. * * * In the absence of an affirmative misapplication of the three criteria, we are unwilling to presume that the trial judge failed to consider the relevant criteria in admitting the evidence.” Defendant’s former felony convictions should be reviewed in light of Crawford to determine if the trial judge affirmatively misapplie

1979This view is supported by People v Roberson, 90 Mich App 196, 202 ; 282 NW2d 280 (1979), wherein this Court said: "Although the trial judge did not discuss the three criteria on the record, we do not read the prior case law as requiring a finding regarding these factors. * * * In the absence of an affirmative misapplication of the three criteria, we are unwilling to presume that the trial judge failed to consider the relevant criteria in admitting the evidence.” Defendant’s former felony convictions should be reviewed in light of Crawford to determine if the trial judge affirmatively misapplie

1978More recently, in People v McGinnis, 402 Mich 343 ; 262 NW2d 669 (1978), the Supreme Court took a further step toward tilting the balance to the defense with respect to instructions regarding alibi by finding that an alibi instruction was in order where a defendant testified that he did not commit the crime and was not there, even though there was no other evidence of so-called alibi nor even a notice of alibi.

1978More recently, in People v McGinnis, 402 Mich 343 ; 262 NW2d 669 (1978), the Supreme Court took a further step toward tilting the balance to the defense with respect to instructions regarding alibi by finding that an alibi instruction was in order where a defendant testified that he did not commit the crime and was not there, even though there was no other evidence of so-called alibi nor even a notice of alibi.

1975After examining the instruction as a whole, the court held, inter alia, that the instruction did not place the burden of proof upon defendant. 36 Mich App at 638 ; 194 NW2d at 45 .

1975Therefore, we decline to find reversible error inasmuch as the balance of the instruction satisfied the standard set forth in People v King, 51 Mich App 788, 792-793 ; 216 NW2d 76 (1974).

1975Therefore, we decline to find reversible error inasmuch as the balance of the instruction satisfied the standard set forth in People v King, 51 Mich App 788, 792-793 ; 216 NW2d 76 (1974).

1966Cf. Geib v. Slater (1948), 320 Mich 316 . 10 This assumes Travelers’ premise that plaintiff owed Vernors a duty of disclosure. 11 Por example, it authorized a judgment upon a settlement and also recited that the judgment should he “in full satisfaction of” the jury verdict.

1934Loney v. Bailey & Caldwell, 43 Md. 10 ; Emerson v. Gerber, 178 Mass. 130 ( 59 N. E. 666 ); American Exchange Bank v. Bornstein, 185 Wis. 218 ( 201 N. W. 242 ).

1934Loney v. Bailey & Caldwell, 43 Md. 10 ; Emerson v. Gerber, 178 Mass. 130 ( 59 N. E. 666 ); American Exchange Bank v. Bornstein, 185 Wis. 218 ( 201 N. W. 242 ).

1934Loney v. Bailey & Caldwell, 43 Md. 10 ; Emerson v. Gerber, 178 Mass. 130 ( 59 N. E. 666 ); American Exchange Bank v. Bornstein, 185 Wis. 218 ( 201 N. W. 242 ).

1934Loney v. Bailey & Caldwell, 43 Md. 10 ; Emerson v. Gerber, 178 Mass. 130 ( 59 N. E. 666 ); American Exchange Bank v. Bornstein, 185 Wis. 218 ( 201 N. W. 242 ).

1934Loney v. Bailey & Caldwell, 43 Md. 10 ; Emerson v. Gerber, 178 Mass. 130 ( 59 N. E. 666 ); American Exchange Bank v. Bornstein, 185 Wis. 218 ( 201 N. W. 242 ).

1929United States v. Beebe, 180 U. S. 343 (21 Sup. Ct. 371).

1910The reasoning of the opinion delivered in denying the motion to dismiss is unsatisfactory in its statement of the grounds on which the decision rests, but, when we turn to the opinion of the court on the merits ([U. S. v. Dashiel] 4 Wall. 182 ), we discover that the defendant did not dispute his liability for the amount for which judgment was rendered against him, but only with respect to the balance of the claim; his defense as to such balance being that the money was stolen from him, and that, therefore, he was not accountable for it to the government, whose money it was, in his custody as p

1908In Hart v. Shiawassee Circuit Judge, 56 Mich. 592 , it was held that a creditor who had not presented his entire claim to commissioners might, upon discovering the fact after the allowance by the commissioners, have the commission revived for the presentation of the balance of his claim, as a matter of right. ‘ ‘ The right of the creditor who has failed to present his claim in such case, and have it heard before a revived commission or before the judge of probate, any time before the estate is closed, is given by the statute, and the probate court has no discretionary power to deprive him of i