LEX FUGIT

LEX FUGIT?

 Some time ago I joined the ranks of what people might politely call, "seasoned attorneys".  While I enjoy working now more than I have in 20 years, I find that a number of attorneys and judges of my vintage, have left the racket, I mean practice. Some are happily retired; some not so much. Others have left for health reasons and others, sadly, have passed away.  I miss them all; admittedly, some more than others.

 

Lex Fugit is a made up Latin phrase--Lex for law, and Fugit as in Tempus (time) Fugit (flies). The site is intended to be a place to preserve memories of the  legal scene in Michigan, with the emphasis on the Wayne, Oakland, Macomb and Genesee County Courts, where I have had the most experience.

 

After a generation in the practice, I find that I  have  war stories for almost every occasion. I'd like to share my stories of the practice and the people who have made it so memorable. And, I hope that readers will share their stories  as well. The lawyers and the practice deserves to be remembered.

 

Lawyer's stories, tales, anecdotes, and reminiscences, are welcome and encouraged.  Please submit to me at mjbutler722@gmail.com.  I may withhold names of characters involved, if I think it necessary.  I have done so with a few of my own stories that appear here.

 

And, finally what blog/website would be complete without a plug for the author's facilitation/mediation business?

 

As readers of this blog will learn, I am not real big on the self-promotion industry, with its various awards and LinkedIn posts.  But, I am also aware that when considering the appointment of a mediator, there is a certain "default" list of names that comes immediately to mind.  I have the same list for my litigation cases.  People tend to forget other mediators. 

 

So, as I attempt to get on that "default" list, I would like to point out that I have extensive litigation experience representing parties on both sides of the "v".  And, as we enter the "Brave New World" of a new No-Fault Act and a new set of Court Rules, I have both written and made presentations concerning both.  I don't think those on the "default" list can say that.  End of self-promotion.

 

 My CV  can be found here.

 

To steal the closing line of one of my heroes, the late Judge Kaye Tertzag:  "Be well."

 

Mike Butler (734-776-0231)

CARTOON-A FUNNY BLOG

Over the years, I have maintained several blogs, some of which attempted, at various times, to be funny.  Based on that experience, I would counsel the Lord not to expect all that much "heeding" unto his Word with a blog, funny or not.

On the other hand, if the Lord would but consider a video podcast, well......I'd certainly tune in.

GUEST POSTER (SORT OF)-STEPHEN LEUCHTMAN

As a new member of the State Bar of Michigan's Senior Lawyers Section, I have access to the Section's listserv.

As of the end of March, 2021, the main topics of discussion are COVID 19/Masks/Restrictions and the 2020 Election.

However, there are some gems to be found among the posts.  This one was found in a post from attorney Stephen Leuchtman.  I had an interesting case with Steve after I went to the defense side.  I thought Steve was a life-long plaintiff lawyer, but I was interested to learn that he started as a defense lawyer.

This story, about an auto negligence trial, is posted here with Steve's permission:

"I started out doing insurance defense work; and in the early 70s, I tried a case against the late Al Lopatin.  Al's client had a laminectomy two years after a car accident, and he got a neighborhood general practitioner to testify that the two were related.  To counter this, I called Dr. George Pendy--the physician who actually did the surgery--to testify that the car accident had nothing to do with the plaintiff's disc pathology.  Pendy was prominent.  He was the chairman of the Department of Neurosurgery at Harper-Grace.  On cross-examination, Al (who was a master of feigned righteous indignation) asked Pendy if he was really saying that the nameless doctor, who attended Johns Hopkins Medical School and was a longstanding practitioner in his community didn't know what he was talking about.  Pendy calmly replied, 'I'm sure he knows what he's talking about.  I don't know what he's talking about.'"

VISITING THE OLD NEIGHBORHOOD

On Friday, March 12, 2021, I did something many older folks do from time to time.  I took a drive through the old neighborhood, in this case the northeast corner of Woodward and Jefferson in Detroit, pictured above.  Now called the Coleman A. Young Municipal Center (CAYMC), in the old days it was the City-County Building, known as  "the CCB".  Those initials might still be edged in the glass of the entry doors.

I timed my trip for  a Friday morning, to coincide with the time which, for decades, that weekly festival known as Wayne County Circuit Court motion day, was celebrated. Because of an early conference call, I did not arrive until 9:45am, a time when one would often meet a Wayne Circuit judge or two entering the building for their 8:30 motion call.

The picture above was not taken on March 12, but it does accurately depict the level of activity around the building that morning. I could have parked in front of the building on the Jefferson side, something I was never able to do in 40 years of practice.

Usually, if I arrived at 9:45, the closest parking would be on a surface lot along Brush near Jacobys.  "Hey, Boss, how long you gonna be here, Boss?  Ten Dollars, Boss.  Park over there, Boss. No, not there, idiot."

Very peaceful that morning.  Friday morning at Wayne County could be called many things.  Peaceful should not be one of them.  I am afraid when the pandemic ends, Friday mornings will never be the same.  No more packed elevators.  No more using the stairs to get from the 9th floor to the 16th because of the packed elevators.  No more waiting for your opponent until you became the last  motion on the docket.  No more resolving motions and cases in the stairwells.  Zoom hearings, or still worse, no hearings will be the normal forever.  Sad.

My March 12 nostalgia tour did not end with the trip downtown.  Later on a took a walk past the building shown below, a practice I have visited as both a plaintiff lawyer and defense lawyer. Ah, me.

 

PUTZ BY NAME, NOW PUTZ BY NATURE?

This is not meant to be the first post in a journal of my new (partially) retired life.  

Less than 2 weeks in, no patterns have emerged.  I am still trying to organize my new professional and personal life.  I haven't finished incorporating my work office stuff into my home office to make my "new" home/work office.  I am still shifting various accounts from work to personal, with all the attendant frustrations that come with that process.

I haven't sent out my new professional announcements yet.  Next week I hope.  

I did spend the first week of retirement doing things that I couldn't do on someone else's M-F, 9-5 schedule.  Those appointments, and being a Wayne County Case Evaluator took up the whole week.

It was not until Monday, March 8, that I woke up with nowhere particular to be.  Kept real busy, registering 17,500 steps on the old FitBit.  But, my plan for the day, such as it was, became my first experience in "putzing" around.  It was fun.  It was productive and I did set my own schedule.  All refreshing for me.  But, back to more organized endeavors next Monday.

Funny, this is the first time the word "putz" could be applied to me as a verb.  Putz, as a noun, has been attached to me plenty of times.

For my very literate readers, such as there may be, I always try to incorporate a graphic or picture to break up the dull verbiage.

With the graphic above, I have truly struck gold, as the words "putz" and "tool" have been applied to me professionally.

Learn more about Putz Tools here. 

I figure the company deserves a plug.  If they have the courage to name their company Putz Tools, then they are pretty confident in their products.  

Kind of reminds me of a guy I used to work with that introduced himself on the record as "Mr. Wonderful".

March 15--back to work.

BUTLER TO "RE-TIRE" (PARTIALLY)--AS THOUSANDS CHEER

After a career of representing plaintiffs and defendants in personal injury cases, come February 26, 2021, I will be retiring from my position as a litigation attorney at Landry, Mazzeo & Dembinski-cue the confetti.

This reminds me, as many things do, of a scene from a Marx Brothers movie, Animal Crackers. Groucho, as Captain Jeffrey T. Spaulding is talking with patron of the arts, Roscoe W. Chandler. 

"Spaulding:” I congratulate you...there's one thing that I've always wanted to do before I quit.”
Chandler: “What is that?”
Spaulding: “Retire. You know, I've always had an idea that my retirement would be the greatest contribution to science (insert “the Law”-ed.) that the world has ever known.”

So, with the Michigan legal scene beset by COVID 19 restrictions, a new set of Court Rules and a new No-Fault Act, it is my hope that my absence from the courtroom will help the Michigan legal system turn the corner.  You're welcome.

Lest people get their hopes up too high, I will still be around.  I will continue to mediate-by phone, by Zoom, in person-Have File Will Travel.  Personally, I will welcome a return to in person mediations.  It is far too easy to say "No" from behind the comfy desk, and I find I have been most successful with decision makers present.

My new contact email is mjbutler722@gmail.com.  

My phone number and CV can be found here or on my www.lexfugit.com website.  Starting March 1, I can guarantee virtually immediate availability.

I will also continue to sit as a neutral Wayne County Case Evaluator.

And, my website continues to look for Michigan lawyers' "You can't make this stuff up" stories.  Posts submitted to my email address will be gratefully received.

The lexfugit.com website will soon begin its podcast, sponsored by the Detroit Bar Association.  Panelists include attorneys John Cothorn, Paula Cole, Franci Silver, Ron Steinberg with guests to be announced.

One of the projects of the site and the podcast is to host an annual party at Jacoby's on Brush Street-since 1904, so they've survived pandemics before this one.  The party we hope will be on the day before Thanksgiving.  No fundraising, no speakers, no program, no no awards.  Just a  bunch of legal types getting together to enjoy each others' company.

Finally, in this post I have been able to incorporate a couple of my favorite things:  the Marx Brothers and vintage advertising.  "Time to Re-Tire" was the slogan of the now defunct Fisk Tire Company, shown below.  And to come full circle, the Fisk Tire Boy was featured in a Marx Brothers movie, "Love Happy".

Be well.  We will see each other again.

 

LEAVING LINKEDIN SELF PROMOTION BEHIND

I am not a fan of LinkedIn, whose motto appears to be: Modesty Never Forbids.

The incessant self-congratulation, "I am humbled and honored to be named-(insert questionable achievement here)" is enough to make you sick.

Most LinkedIn accomplishments seem more like a catalog of the participation trophies of the business world.

Actual achievements, to the extent people feel they must blow their own horn, get lost amidst chaff like "Another win in Court today!  Extended Scheduling Order from Track 1 to Track 2".  

So, when I recently received a real award, I was not content with a LinkedIn humblebrag.  

During the pandemic, I saw a lot of lawn signs in the neighborhood, even before the election.  Graduations and such like were front and center for the world to see, for months.

And I thought, what's good enough for my neighbor's kid who graduated from the local preschool (I am not making this up), was good enough for me.  So, I commissioned the lawn sign shown above, as testament to my selection as a Fellow of the Detroit Bar Association.  

And, in a true LinkedIn worthy touch, I enhanced the effect by placing it on the lawn of a house more expensive than mine.

For those who can't read, the certificate is shown below:

This post is to poke fun at LinkedIn and not to show any disrespect to the DBA, a noble and wonderful institution that has been around since 1836, and which continues to amaze me with its continuing efforts to serve the legal community and the citizens of Metro Detroit.

SY ORLOWSKI'S MOST "IMPOTENT" CASE*

*For purposes of this post, accent the second syllable of impotent.-ed.

This story is a courtroom classic.  It is Simeon (Sy) Orlowski's story, but sadly, Sy passed away in 2014.  

It is set forth here as related by Dan Makarski, a Dean of Michigan Facilitators, 

Dan's services are in such demand, a personal injury attorney is well advised to contact his assistant June Hayes for mediation dates before the accident happens.  

Sy was a great attorney and an even better man.  It is emblematic of his integrity, that he left a job, rather than carry out an unethical directive from a client.

At the time of this tale, Sy worked for the firm now called Secrest Wardle, in its (sadly) now closed branch office on Macomb Place in Mt. Clemens, a few short steps from the Macomb County Courthouse.

Sy was in an auto negligence jury trial in Macomb.  The direct exam of the plaintiff had ended at the lunch break.  Sy's cross exam would come at the beginning of the afternoon session.

Back at the office at lunchtime, Sy asked Dan what he was doing that afternoon.  He told Dan he might want to come  to court to see his cross.  Those who knew Sy know that he was the most self effacing of men.  This was not an ego trip.

As to the trial, fault for the accident was not a contended issue.  As to the requested compensation for plaintiff's injuries, money had been offered by Sy's client before trial, but the offer was not agreeable to the plaintiff.  He would take his chance with the jury.

Along with various bodily injuries, the plaintiff claimed he had become impotent as a result of the accident.

The morning trial session ended with plaintiff counsel completing his examination of his client.  The attorney wanted to end on a high note, and had his client testify about the trauma of becoming impotent because of the accident and the impact it had, and would continue to have, on his life-and the life of his devoted spouse.  He looked over to his wife, who was sitting at counsel table.  She wiped tears from her eyes.  Good luck, defense counsel.

Court reconvened in the afternoon, with Sy to cross examine the plaintiff.  His initial questions appeared fairly benign.  

"Sir, you have been sworn to tell the truth."  "Yes."

"And you have told the truth to the jurors here?"  "Yes."

"And you have always told the truth to your treating doctors as well?"

"Of course." (The plaintiff lawyer should have suspected something was coming.  Maybe he did).

"Sir, I'd like to show you this record of your visit to Dr. X, your treater for the injuries you have alleged in this accident."

At which time, Sy pulls out a blow up of a page of the plaintiff's post-accident medical records, and places it on an easel in full view of both the plaintiff and the jury.  Highlighted in yellow, is this portion of the client's medical history:

“Impotent—but only with wife.”

The eyes of several female jurors went wide, and a jaw or two dropped.

 

GUEST POSTER: JUDGE DAVID ALLEN*

LESSONS LEARNED AND LESSONS MISSED

 

Attorney Frank Palazzolo, may he rest in peace, was a big part of the start of my journey in the law.  Frank mentored me in one brief encounter, in a way he probably never really realized, and without ever uttering the word “mentor”, making the encounter all the more authentic and meaningful.  As I reflect on the long ago lesson learned, I am reminded of all that we are missing in this remote court Covid world we find ourselves in. 

 Frank and I had a settlement conference in front of Judge Sean Cox.  Judge Cox presided in Wayne Circuit back then.  I had been out of law school a few years by then.  I didn’t know much about Frank at the time, but he had been practicing law for many years by the time I first met him.   I, on the other hand, was a “know nothing” (some attorneys might still use this moniker on me these days, just ask around after motion call!) young attorney trying to impress a new client on a fairly routine business case.

 I was exchanging a few pleasantries with Frank while awaiting our chance to see Judge Cox, but Frank was clearly anxious to get to another more important matter he had to cover elsewhere.  I started to sense that he was going to shut down my annoying exchange of pleasantries, when suddenly he turns to me and says “kid what’s your client’s bottom line, I gotta get out of here.”  (Yes, he called me kid.)  I had to think for a minute, should I try to capitalize on his impetuousness and gin up my client’s number, thereby coming back a bigger hero to my client?  I thought better of it and gave him pretty close to the bottom line and he said “you have a deal.” There was no haggle, no fuss, just his word and a handshake.  For Frank, this case was an insignificant annoyance, for me the case was a big deal as this client, pleased with the result, had plenty of work to send my way afterwards.  (Sorry Butzel Long, Frank unknowingly helped me purloin one of your clients!)

"THERE'S THE BRAVEST MAN IN WAYNE COUNTY!"--JUDGE DAVID ALLEN, WAYNE COUNTY CIRCUIT JUDGE, APRIL 17, 2015

To whom was Judge Allen, shown at right, referring--in open court, yet?

Your humble and obedient correspondent, no less.

Too bad I wasn't on LinkedIn at the time.  LinkedIn, our motto is "Modesty Never Forbids".

The occasion?  That morning, an article I had written called "Show Me a Sign", had just appeared in  Detroit Legal News.

At motion call that Friday, I think I was looking for an opponent who I had been informed was in Judge Allen's courtroom.  I opened the courtroom's door, and took a step in, searching for the lawyer.  Judge Allen, who I know quite well, was already on the bench, hearing a motion.  When the judge saw me, he stopped the hearing, pointed at me, and announced, well, the quote that is the title of this piece.  He said some nice things about me, and then got back to business.  I was busy signing autographs.

About the article:

I was still a plaintiff lawyer back then, and the article, which can be found here,  dealt with Michigan's Open and Obvious Doctrine.  Specifically, it dealt with judges who would  walk up and down the parking ramps in the Ford Auditorium underground parking facility across the street from the City County Building, in defiance of the "Do Not Walk On Ramp" signs, one of which is shown below right.  

Many of those judges would thereafter arrive at their courtrooms and then grant Summary Disposition motions on premises liability based  on  the  Open  and  Obvious  Doctrine.

The article set forth a colloquy from such a Motion's argument:

"Judge: Counsel, I am granting the Defendant's Motion for Summary Disposition. The black ice he fell on was Open and Obvious.

Attorney: But, your Honor, the ice was invisible.

Judge: Yes, but the Defendant has a witness who says there was a small patch of snow three blocks away from the accident scene. Your client should therefore have known that there was a possibility that there could be invisible black ice on that porch.

Attorney: But, Judge, my client is a policeman and that porch was at a house where he was responding to a domestic dispute call. The 911 caller said the home owner had pulled a gun.

Judge: So?

Attorney: So? He had to do his job. If he didn't go onto that porch he would have lost his job, at best, or there could have been lives lost at worst. Whatever the hazard was, it was unavoidable under the circumstances.

Judge: Not so. He could have used the back door.

Attorney: What back door?

Judge: All municipal fire codes require two entrances to a house. I am sure there was a back door. There had to be. And so your client had a choice. He didn't have to use that front door or go on that porch. Haven't you read the Hoffner case, counsel?

Attorney: I did, but I thought I was reading the latest issue of Mad Magazine. So, let's say there was a back door, what proof is there that the back porch had no ice on it?

Judge: What proof do you have that there was? Your client didn't bother to look back there, did he?

Attorney: Judge, when he went up the walk he looked through the front window and saw the owner with a gun in his hand.

Judge: Counsel, we do agree that your client fell, do we not?

Attorney: We do.

Judge: Then, obviously your client was not acting with reasonable care for his own safety at the time of his accident.

Attorney: Not to get personal, judge, but on the way in here this morning, I saw you walk up the Ford Auditorium parking ramp, though there is a "Danger, Don't Walk on Ramp" sign in plain view and it happened to be snowing at the time. How can you rule that my client wasn't acting reasonably?

Judge: Counsel, I did not fall.

Attorney: So?

BAGATELLES I

A few comparatively short, random flashbacks from my shadowy legal career.   A bit different than the flashback I had for 10 years of walking into the classroom building at Wayne State Law School to find all the students taking an exam of which I was apparently unaware.

I.  THE SAVOYARD CLUB

The Savoyard was a private club on the top floor of the Buhl Building.  The building opened in 1925, and the club opened in 1928.

Access was a bit odd.  An elevator took members to the 28th floor. Ahead was a vaulted stairway, with three turns and landings.  My first boss, an old time Irishman who started out around the time Jerome Cavanaugh was Mayor of Detroit, took me to an event there in the early 80s.  Very cool place, oozing old power.  I assumed that I'd be back.  But, with dwindling membership, the club closed in 1994, and as far as I know, Detroit's revitalization has not reached the space.

The Buhl Bar, on the ground floor of the same building, has a page on its website called the Savoyard Club, but it is not an attempt to reopen the space.

I did not know how the Savoyard Club got its name until very recently.  I used to relate the term "Savoyard" to devotees of Gilbert and Sullivan (my nerd background is showing).  But the Savoyard was actually a river in Detroit, and the Buhl Building was built over the stream, which was encased in stone by the City in 1836, having become something of an open sewer.

Who knew?

There is apparently a stained glass window with the crest of the Savoyard Club (which I don't remember seeing on my visit).  A depiction is shown on the match book on the left (I bought the matchbook on eBay), and a graphic is shown at right.

While writing this I now recall that when I started as a clerk for my first boss, he was dealing with the fallout on a case, wherein a deposition had been scheduled on the day of Jerome Cavanagh's funeral.  My boss called the opposition and left a message asking that the deposition be adjourned so he could attend the funeral. He assumed that was all that was necessary, given the event and the "rules of the game" for gentleperson lawyers.  He learned later that the attorney did not adjourn, went forward with the dep and the boss was stuck with the very poor testimony (for him) from that event. 

Not adjourning the dep was a clear violation of the rules of the Guild.  This is not the way (to coin a phrase).

II.  A POST HEARING NIP OF SCOTCH IN HIS HONOR'S CHAMBERS

During my time with the same boss referred to above.  He sent me to cover a hearing before a judge that was one of his friends.  Last hearing of the day, after which the judge called both counsel into his chambers and in the course of discussing something other than the "instant case", he asked us if we wanted a drink?  Yes, certainly.  He pulled a bottle of scotch out his desk drawer and poured a nip for all in chambers.  Just one.

This is wonderful, I thought.  Real 30s-40s era movie stuff (excluding Judge Hardy, of course).  This is why I became a lawyer.  I mean that seriously.  I assumed this would be merely the first of many such in camera proceedings.

Never happened again.

And, that unique event didn't really put me in tight with that judge.  About a year later, he reamed me from the bench for checking in on an 8:30am hearing---at 8:35am.

I am reminded of the not so unique occasions wherein I would be walking to the Ford Auditorium parking structure at 9:45am, having completed my Friday Wayne County Motion call.  I would often greet more than one Circuit judge who was just arriving for his/her 8:30 or 9am Motion call.

So it goes.  It's good to be the King.