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)

LUNCH WITH HENRY MAHER, AND NICK SHAHEEN

On Monday, June 21, I met Henry Maher on the patio of the Moose Preserve on Woodward, for a COVID adjourned lunch.

Henry is retired from a brilliant career as a litigator and facilitator.  Henry was one of the first, and all time best, facilitators.  Though he was an insurance defense attorney, I never saw a man who could connect with a plaintiff better than Henry.  He thrived on the in person hearing, which I hope returns to mediation/facilitation practice, now that the light switch on the legal system is getting turned back on.  

Though many lawyers, self included, continue to make facilitation a second career, Henry is now "retired, retired", and intends to stay that way.  Since his second retirement, he has begun reading novels, specializing in non-cozy mysteries.  The count must be near 300 books now, and I am proud to say that I introduced him to Rex Stout's Nero Wolfe back in 2019.  He has read 25 Wolfe's as of June 21, and maintains a tactical reserve of 3 unread Wolfe mysteries against the advent of a national emergency.

There was a lot of litigation experience at that table that afternoon.  And we did talk about many important things-our families, our shared Catholic educational experience, mystery novels, old acquaintances and the upcoming summer of 2021.   At some point we did get around to memories of practicing in Wayne County Circuit Court.  Earlier that morning, I  learned  that Nick Shaheen,  retired Wayne County Circuit Court Assignment Clerk, had died on May 22, 2021.  Nick was 96.  He served as Wayne County Circuit Court Assignment Clerk from 1969-1989.  In 1994 he and his wife moved permanently to Orlando, Florida.

 Nick retired before Wayne Circuit moved to judges having individual dockets.  Really seems odd to recall the  way the court was "organized" back when I started practicing.  Firstly, Recorders' Court was restricted to hearing criminal matters originating in the City of Detroit.  All other Wayne County felonies were heard by Wayne County Circuit judges in their courtrooms in the City County Building (now the Coleman A. Young Municipal Center), the Wayne County Building (then referred to as the Old County Building) and the Lafayette Building (forever demolished as of 2009).  All Wayne Circuit judges heard civil, criminal and family law cases.  

When a civil case was filed, a judge was assigned.  This judge would have the case through mediation (now called case evaluation).  There were no discovery tracks--all civil cases were given discovery for 26 months!! You read that correctly.  Admittedly, the number 26 seemed a bit more shocking before March of 2020. Before the COVID shutdown, certain Circuit judges announced the policy that all auto-related cases were to be resolved (which would include trial if necessary) within 12 months from the date of filing.

Cases would be set for mediation after the 26 months, but how long after I don't remember.  Some time after Mediation (again I don't remember how long after), attorneys would get a Settlement Conference notice.  The Settlement Conference would be set before a randomly selected judge, not the judge assigned when the case was filed.

Adjournment requests, of any type, were made exclusively by motion filed with the Chief Judge.  A forlorn hope, generally.

At the Settlement Conference the system got really interesting.  If you didn't resolve your case with the settlement judge (who had no particular motivation to help you settle), you could go to trial that very day.

Enter Nick Shaheen and the 17th floor Assignment Clerk's office.  

GEORGE S. KAUFMAN (1889-1961) ON LEGAL BILLING

 

 

George S. Kaufman should be familiar to most, though he died 60 years ago.

He was a playwright, theatrical director, producer, humorist and drama critic.  He won 2 Pulitzer prizes:  for the musical Of Thee I Sing and the comedy You Can't Take It With You.  He wrote several musicals for the Marx Brother, The Cocoanuts, and Animal Crackers. (very important), and was a member of the Algonquin Round Table (also very important).

He was a great wit, while trying to locate one of my favorite Kaufman quotes, about getting something for nothing (a great quote for another time), I came across the gem, shown above, about lawyers.  The best bit is the last:

"You heard about the man who go a bill from his lawyer which said, 'For crossing the street to speak to you and discovering it was not you, twelve dollars.'"

I don't know the date of this quote, but Kaufman was writing Broadway plays a hundred years ago, and maybe 12 bucks was a big deal back then.

Before researching the prevailing hourly rates for New York lawyers in 1921, I got to thinking.  I was an insurance defense attorney for 6 years, and there were times when twelve dollars seemed a big deal to my carrier's billing review company.

As an example, let me take a situation like that described in Kaufman's quote, but substitute "opposing counsel" for client and assume that there was no mistaken identity, and that we actually met, on the streets of Downtown Detroit (remember when?) and discussed a current case.

Immediately upon my return to the office (possibly), I would have entered my time on our billing program. For simplicity's sake, I'll omit the tags and activity codes, and would bill .3 hours, 18 minutes, with the following description:

"Met with plaintiff's counsel in Detroit, and discussed the status of various outstanding discovery requests.  Counsel indicated that the requested documents, and answers had been received in rough form from his client, and he had to review them and "polish them up".  He would get them to me hopefully within 10 days.  Also discussed scheduling the depositions of his people.  One was a former employee over whom he had no control, but he would like to try to arrange the deposition informally, without needing a subpoena.  He'd let me know, again in 10 days."

In the fullness of time that entry, along with others was submitted to the client through its bill review company.  Let's make up a name for the company, totally at random.  Let's call it "NadirEdge-EvilHex".  I am sure we would have called it "Evil" for short.

WORDS OF WISDOM FROM MICHIGAN'S MASTER/SENIOR LAWYERS

 

Back in 2017 the State Bar of Michigan's Master Lawyers Section (for some reason now "rebranded" as the Senior Lawyers Section), published a 23 page book entitled "Words of Wisdom".  A copy can be found here.

It is certainly different than the LinkedIn equivalent of professional advice.  First and foremost, none of the submissions are attributed to anyone.  Certainly a violation of LinkedIn Rule No. 1--take credit for everything.  Come to think of it, the roughly 125 tips contained in the book would provide the young "Advice For Young Associates" twit on LinkedIn with material to ascribe to appropriate for and attribute to  himself, for a week.

Some of the advice may be criticized as trite bromides, scarcely necessary to repeat.  But, based on my observation of the current state of the practice, those bromides, though often prescribed, have not been taken in therapeutic doses by the litigating community.  For instance:

"The basics still remain the same: Be prepared, aware, ethical, and energetic, and you can succeed even though the profession has changed."

Adequate case preparation is still a challenge, apparently.  And, civility and ethics may be difficult to maintain where the litigation arena is not the courtroom but the computer screen in a home office, basement, kitchen or bedroom.  And, to be fair, it is hard to remember that you follow in the footsteps of Brandeis, Frankfurter and Bader Ginsburg, when you  practice with your own footsteps encased in bunny slippers, worn under pajama bottoms.

I did not contribute to the book.  So, let me take care of that now:

"Eat a green thing daily". (However, avoid green meat, cheese or bread).

Ironically, the  value of Words of Wisdom is in stark contrast to the submissions to the current Senior Lawyers Section Listserv.  More about that in another post.

CORPORATE CAREER CAVALCADE-A CACOPHONY OF COCKAMAMIE CLAPTRAP

A few cartoons I have come across recently that business speak and culture into perspective.

1.  Corporate "Training".  I love the way Steve is smiling in the second panel-as he is about to get eaten.

Artist:  Ellis J. Rosen

2.  Lemonade "Solutions".  We will cheerfully pay more for puffery:

Artist:  Pat Byrnes

3.  A variation on the classic. No one on his death bed said, "I wish I spent more time at the office."

Artist:  Kaamran Hafeez

4.  Meetings

Artist:  Also Kaamran Hafeez

5.  My favorite

Artist:  Frank Cotham

ADVICE FOR LITIGATORS EPISODE 1-JUST THE FACTS, MA'AM

A fairly new lawyer, licensed in August of 2015, has for several years, run a series of LinkedIn posts, called "Advice to Young Associates".  I am not kidding.  The advice contained therein is about as useful as the title is condescending. I am drawn to the young fellow's page primarily to read the latest cringe-worthy offering.

A direct quote:  "Young associates: Work life balance is important. So is staying late and showing up on the weekends."  End of post, by the way.  Great insight.  And better yet, advice you can use.  Note, he doesn't say "So is getting your work done."  No, it is more important to make it appear to your bosses that your work is your everything.  If he doesn't notice, you can remind him on your LinkedIn page.

I will today start an alternative series, not to appear on LinkedIn, called, simply, "Advice For Litigators".  I hope this will be real advice you can use in the courtroom or in Zoomworld.

Advice For Litigators-Episode 1:  Just the Facts, Ma'am

If confronted in court by a member of the Black Robe Brigade, and questioned as to the accuracy of your proffered version of the facts, respond as follows: *Firstly, you may need to mask your surprise that the judge was listening.

"Judge, my presentation was merely corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative."

Taken from William Schwenk Gilberts libretto to the 1885 comic opera "The Mikado", this tidbit is guaranteed to stop a judge in his/her tracks.  After a short pause, the judge may even thank you for your explanation, and you will be invited to continue, unconstrained by further interruption.

This advice is time and courtroom tested.  It works much better than my previously employed response, taken from Curly Howard's dialog in that taut, courtroom drama from 1936, "Disorder in the Court".

"C'mon, Judgie, be a pal."

Litigators of the world and the greater LinkedIn universe, I am honored and humbled to be of service.  You are welcome.

 

CASE EVALUATION MAY 7, 2021

No, the above image is not a screen grab from Panel 2 of Wayne County Case Evaluation of Friday, May 7, 2021.  Though, with a panel consisting of Sheldon Miller, Abe Barlaskar and yours truly, one could well think so.

May 7 was a bit of a throwback to the old days of in person case evaluation hearings.  Shel told us his story of challenging the constitutionality of original No-Fault Act in front of Judge Horace Gilmore in the Wayne County Circuit Court.  His co-counsel was Harry Philo.  

In addition, I was able to catch up with some local gossip, including the story, later confirmed, of a local Circuit Court judge leaving the bench, well before his/her term was to end.

It wasn't like sitting along with 3 other panels, with lunch across the street at the Detroit Club.  But, a nice reminder of former days when case evaluators were required to wear shoes.

Coincidentally, the picture above was the only image that came to my mind when someone said "Zoom", prior to March of 2020.

DETROIT MOUNTED POLICE

I am not sure what made me think of this.  Maybe, because it is a Friday morning and I am waxing nostalgic about Friday motion call in Wayne County.  (I think I may need to get another hobby).  But, I do remember when the Detroit Police Department did have a regular mounted patrol assigned to the streets around Jefferson and Woodward.  I'd see them so often that I would recognize some of the officers-though admittedly, not any of the horses.  

Greeting mounted police officers on your way to court doesn't peg you as an older timer much, does it?

Anyway, the Detroit Police Mounted Division does still exist.  It was shut down, for budgetary reasons, in 2005.  But, it was brought back in 2009, and currently has 2 sergeants, 6 officers and 6 horses.   At its peak in the 1970's (slightly before my time), the unit had 5 barns, 80 officers and 60 plus horses. 

Presently, I think the mounted patrol covers areas near the Riverwalk and the casinos, where the novelty of officers on horseback adds to the attraction of the city's entertainment districts.  Oh, yes, and we see the mounted unit as participants in the Thanksgiving Parade.

So, while attorneys no longer see the total horse when going to court in Detroit, we still see the rear ends of these animals on a daily basis.  See below.  Note:  I pulled this from LinkedIn, obscuring the name of the "Honored and Humbled" recipient who posted his honor.  I am serious.  I have seen more than one person on LinkedIn post dismissals of bar grievances filed against them.  To quote Dave Barry, "I am not making this up".  I don't understand LinkedIn.

Here is a video from 1927 showing the Mounted Unit

 

 

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.