Always argue in the alternative. At a recent Bench-Bar panel in Grand Rapids, state and federal judges reminded the lawyers not to take a “kitchen sink” approach to brief writing. To paraphrase one of the jurists, “If your first- and second-best arguments don’t convince me, what makes you think your fifth- and sixth-best arguments will?” But there is a flip side to this advice: leaving out a meritorious “in the alternative” argument can be just as harmful. Fremont v Lighthouse is a case in point.
Fremont is a No-Fault case. The injury took place in 2018. In 2019, the Legislature overhauled the No-Fault Act, including how reimbursements to care providers are calculated. Lighthouse argued that for services rendered after 2019, the amended fee schedules should control, irrespective of when the injury took place. Fremont argued that pre-amendment “reasonable and customary” fee scheme should still apply.
Applying ordinary canons of statutory construction and cases applying other sections of the amended No Fault Act, the Court of Appeals held that the Legislature did not intend the fee schedules to be retroactive. Therefore, the pre-amendment “reasonable and customary” rates applied to Lighthouse’s request for reimbursement.
On appeal, Lighthouse attempted to argue that the amounts Fremont had paid it were not “reasonable and customary.” But Lighthouse never raised this argument in the trial court. The Court of Appeals, therefore, held that Lighthouse waived the issue.
Taking a kitchen sink approach can annoy judges and hurt your client’s chance of success in the trial court and on appeal. But failing to include meritorious “even if” theories of the case can foreclose relief if the judge rejects your main theory. Always argue in the alternative.
