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 mbutler@lmdlaw.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 and mediation procedures 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)

GUEST POSTER-FRED LAUCK

 

Fred Lauck is a fellow Catholic Central Alum, a trial lawyer, and a wonderful storyteller.  He has always stood up for the little guy and for the Rule of Law.  He has written 3 books, which are, all of them, wonderful reading.  Here is an excerpt from the one I am reading now:

IMPORTING BRITISH ERUDITION

Six months before I represented Dewayne McKenzie in an Assault with Intent to Murder trial, I was in England with Irish John Conlon at a joint seminar for American Trial Lawyers and English Barristers. Talk about smooth, erudite use of language. I saw an English Barrister defend an accused rapist at the “Old Bailey” in London. The defense was “consensual” sex. When the erudite English barrister cross-examined the alleged rape victim, he suggested consensual sex in his well crafted question...

“Madam, let me suggest to you that you extended to my client, shall we say, the maximum in cordiality on a voluntary basis.” Wow, did I love that phrasing and that use of the language!!!… sexual intercourse, “the maximum in cordiality.” The English Barrister was on the mark with that “maximum cordiality” description.

I brought that erudite phrasing all the way across the Atlantic from London’s Old Bailey to Detroit Recorder’s Court, and used it to cross-examine the hooker who was on pimp Fred Baker’s arm at the time Baker was shot. Right up front, I attacked her credibility by showing that she was a prostitute. Using my best barrister-inspired phrasing to a “T,” I opened with the question…

“Madam, let me suggest to you that yours is, shall we say, the oldest profession known to mankind”??? Without pausing, her immediate response… “No, your's is, Mr Lauck. Lawyers have been screwing people a lot longer than hookers.”

PRETRIAL PRATFALLS

Yesterday, as I drove to White Cloud, Michigan for a status conference in Newaygo County Circuit court, I had pa-lenty of time to recall  a few of the more interesting status conference/pretrial experiences of my career.

There was a time when Wayne County Circuit judges did not have individual dockets.  That time is hard for even me to remember.  Judges went to individual dockets in "waves" of 8 judges at a time.  Initially, the system provided for in person status conferences on all cases.  More about that later in this piece.  After a comparatively short time, the in person  conference was replaced by the routine entry of a scheduling order sent to the parties.  The one exception to that rule involved a particular judge, hereinafter referred to as Judge A, who insisted on the in person status conference.

These conferences were set for 8:30am, but seldom if ever started at that time.  Litigants would mill about the courtroom and outside hallway until 9:15 or so, when the court officer would come out into the hall and require all persons having a case with Judge A to come into the courtroom.  The courtroom door was thereafter closed.  About 10 minutes later, the first case would be called, and those attorneys would be ushered into the judge's chambers.

Litigants finally figured out what was happening.  The judge's courtroom was on the river side of the City County Building, but the special judge's elevator was located on the Larned Street side of the building.  An arriving "riverside" judge would have to cross the public hallway in full view of the great unwashed (attorneys) to get to the private entrance to chambers.  Therefore, everyone would know when the judge reported for work.  Not great for Judge A's rep if attorneys saw the judge come in 45 minutes after the time appointed for the hearing.  So, let no one see the judge arrive and the fiction of the judge's prompt arrival was preserved.

Depending on Judge A's mood, at the conference you had to know everything about your case, or nothing.  In the former case, you had better know such things as your client's date of birth and weight without having to consult the file.  I went in prepared, therefore, even telling the opposition that I could provide my client's favorite color (it was always cerulean, by the way) if asked.

GUEST POSTER-LEE ESTES

Here is a story from attorney Lee Estes.  Lee is retired, and all of my cases with him was when I was a plaintiff lawyer and Lee appeared for the defense.  A great lawyer and a true gentleman.  This story gives a great insight into Friday motion day in Wayne County.

I was in Wayne Circuit in front of Claudia Morcom.

While waiting for my motion to be called another matter was being heard. There was one plaintiff attorney, Ron Gilbert and three defense lawyers. I think one of the defense guys was Charlie McGorisk from Plunkett & Cooney but I don't remember the other two. It was a defense motion asking the court for an order requiring Gilbert to show up on time for depositions. All the defense lawyers complained loudly about Gilbert wasting their time by showing up 30 - 60 minutes late for every deposition. Everyone was yelling until Morcom orderered all of them out of her court room.

"Go out in the hall and settle this yourselves." All participants left and the door closed.

The tone of the court room returned to normal. Minutes passed. Suddenly the door swung open with a loud crash getting everyone's attention. Ron Gilbert stood in the doorway holding it open with one hand. His hair, normally slicked down, was standing straight up in the middle of his head. After a dramatic pause Gilbert yelled at the judge, "Your honor, they hit me!"

Judge Morcom pounded away with her gavel yelling "Get Out, Get Out!" Gilbert withdrew and the four of them were not seen again that day."

COIN OF THE REALM

Back in the days before email, with its instant responses of "LOL", "WTF", and emojis of various sorts, all written communication was by means of a "letter".  Many of us still remember them.  A more elegant means of expression.  Over the years I have retained, and framed a few of the more memorable pieces of correspondence I have received.  I have yet to hang an email in my office, no matter how funny the meme.

The letter which is the subject of this post was one I sent.  I was nearing trial on a Wayne County case involving a bus accident.  My client was a passenger on a SEMTA/SMART bus.  The bus driver caused an accident in which my guy was injured.  He also happened to be a Canadian citizen, from Windsor, without a car of his own.  My lawsuit on his behalf included both a claim for No-Fault benefits and one for auto negligence.

Back then the Canadian dollar was worth about 70 cents American.  

In the course of trial prep, defense counsel and I exchanged a fair number of letters about such things like jury instructions, admission of medical records, witnesses and so forth.  In one letter, my opponent indicated that if my client prevailed, which he greatly doubted, any monetary award should be in Canadian, rather than American, dollars.  While I liked my opponent personally, I thought that was one of the stupidest things I had ever heard.  And though many years have passed since, it remains at the top of inane suggestions.

I read the letter.  I dictated and sent the following response:  "With regard to your position that any verdict in this case be rendered in Canadian dollars, I cannot concur.  However, I will agree that any award of damages be in Pounds Sterling."  The end.

A couple of days later I got a phone call.  I remember it well.  My opponent was genuinely puzzled, and he could not understand what I meant.  Try as I might, I could not persuade him that my letter was a joke in response to his ridiculous suggestion.  I could just see him reading the letter, furrowing his brow and shaking his head.

In fact, he filed a motion a motion in limine advancing the argument.  He lost the motion....and the trial.

I don't think defense counsel framed that letter.

LOL.

 

 

TARGETED ADVERTISING, LONG, LONG BEFORE SOCIAL MEDIA-JUDGE HORACE W. GILMORE

Horace W. Gilmore (1918-2010) was a Wayne County Circuit Court Judge from 1956-1980.  He was appointed to the Federal bench by President Jimmy Carter in 1980 where he served until his death in 2010.

After getting a BA at U of M in 1939, he graduated from the U of M Law School in 1942.  He was a lieutenant in the Naval Reserve during WWII, and after the war served as a clerk to US Court of Appeals Judge Charles Simons.  He was in private practice, served as a special Assistant US Attorney, and as a deputy state attorney general before taking the bench in Wayne County.

Although Judge Gimore left the Wayne County bench before I finished law school, and I had limited appearances before him in Federal Court, I remember him as having a great reputation for intelligence and integrity.  And, apparently, Judge Gimore was way ahead of his time when it came to advertising to potential voters come election time.

Judge Gilmore did not have to worry about elections at all after his appointment to the Federal bench, but he had to run for Circuit Judge many times before advent of social media, the internet or even cable TV, for that matter.

Cruising the internet recently, I came upon the historical item shown above, offered for sale, though on a site other than eBay, if I recall.

An index-card (remember those?) sized piece, promoted Judge Gilmore as a judicial candidate in the November, 1976 election.  His qualifications and endorsements are nicely placed next to the 1976 U of M and MSU football schedules.

I am a little confused as to how these were distributed.  Not by mail.  Maybe campaign workers went door to door putting these in mailboxes.  A nice size to pin on a home bulletin board (remember those?), again in an era before the refrigerator magnet, which by the way is still a fresh self-promotional device, see below.

Judge Gimore's card was a nice, understated,value added piece that I find vastly superior to today's internet advertising and self-promotion.  I recently tried to read a single newspaper article online, and 9 ads from the same attorney were inserted symmetrically within the text.  Admittedly, it is a tough time to make money if you run a newspaper.

Judge Gilmore's card also proves that advancements in technology are not necessarily synonymous with  progress.

 

THE DEP NOT TAKEN

Twice in my  career, I have appeared for the de bene esse trial deposition of one of my client's treaters, and, after talking to the doctor, did not take the dep.  Fortunately for me, in both cases, the defense attorney did not try to go forward with the deposition notwithstanding my cancellation.

The most memorable of those occasions was probably 20+ years ago, before the "Open and Obvious" eliminated a lot of premises liability cases.  I have no problems telling the story now.  The case did resolve prior to trial, for a very, very modest figure.  As to the client, I would not disclose his name, even if I could recall it.  And, though this may be in questionable taste, I believe he probably passed away many years ago.  He was in his 80s at the time of this story.

This Wayne County case involved a slip and fall at a car service shop.  The claim was that the client fell on an accumulation of oil on the floor of the work area of the business.  

His claimed injury was a nerve injury to his wrist.  Surgery had been recommended but had not occurred to date.

So far, not bad.  

He was not an uncharming fellow at his deposition, by and large.  However, alarm bells went off in the background when he claimed for the first time that he had nerve injury to both wrists as a result of the accident.  This happened, he said, because after he first fell onto his right side, he bounced about 3 feet in the air and then fell on to his left side.  Not helpful, but people often do not recall the mechanics of a sudden fall with complete accuracy.

The defense did not like my client's case too much and the case did not resolve through case evaluation or at the settlement conference.  No facilitation back then.  My client and his wife lived in the City of Gross Pointe, about 3 blocks outside the Detroit border.  They had taken a bus to court the day of the conference.  Being the nice guy that I was, I mean am, I told them I'd drive them home after the hearing.  My own alarm bells started going off when we reached the intersection of Congress and Shelby.  The light was red for us, and my client's wife and I stopped for the light and for traffic.  My client, however continued walking blithely on, and only my arm physically restraining him stopped him from walking into traffic.  He was completely unaware of what he had almost done.

APHORISMS FOR AGING ATTORNEYS-5

"Mike Butler, what did I do wrong?"-My opening statement after taking a call the phone display shows as coming from Oakland County Circuit Court.  When I am right (most times), I appear clairvoyant.  When I am wrong, it tends to disarm the caller.

LAWYER BEHAVING BADLY

I am normally able to come up with an original, slightly witty title for most blog posts, and I will admit "Lawyers Behaving Badly" is not one of them.  Same with the picture.  Funny meme. And this story is about a mediation.  But that's about it for relevance.

The behavior described in this entry defies my talents as a headline writer.

Back in my plaintiff days, at a time when the claims of medical providers did not dominate No-Fault lawsuits, I would oppose provider motions to intervene in my No-Fault cases.  In the present story, my first notice that the provider wanted its own counsel was the filing of the intervention motion.

I did not know the provider's attorney, and he did not know me.  However, that did not prevent him from being personally insulting to me on the record at the intervention motion, which turned out to be a precursor of things to come.  The motion was granted.

During the litigation, the provider's attorney was not to be seen, and his Case Evaluation summary was all of one page.  I paraphrase, "Provider treated, see bill, give me money".

The case did not resolve through Case Evaluation, and went to Facilitation.

The insurance carrier did not have local adjusters and the defense attorney asked the facilitator if there was an objection to having the adjuster, based in Cleveland, appear by phone. The facilitator called my office asking for my position.   I responded that I did not object.  

The hearing was set for a Friday afternoon in June.

In the course of human events, I showed up with my client at the appointed date, time and place.  The facilitator, an old friend, greeted us.  He said that the defense attorney and the adjuster had already arrived and were in another room.  The shock must have registered on my face.  "I said that the adjuster did not have to appear personally."  "I know, he said, but the provider's attorney objected and required personal appearance".

APHORISMS FOR AGING ATTORNEYS-4

 

"May you never have a bigger problem."-Ruth Butler, my mother.  A great lesson in perspective.  However, for you youngsters out there, not a line I'd advise trying on your boss.

"Two wrongs don't make a right.  They make a Court of Appeals Opinion."-Blackstone.

“In my many years, I have come to a conclusion that one useless man is a shame, two is a law firm, and three or more is a Congress.”-John Adams in the musical, 1776, in 1969.  A nice quip, and something the real John Adams should have said.

THE SINGULAR THEY

As I am developing this site, I realize that the need for discretion requires that I not name names in some cases, even though the stories are true. And rather than use he/she, his/hers,him/her to further attempt to disguise identity, I have decided to employ the "singular they" when referring to persons I do not wish to identify.  For those not familiar with the practice, click here. 

In order to try this out, I will relate a story concerning my court appearance of last Monday.

I had a settlement conference scheduled in the morning in Wayne County Circuit Court.  Sadly, the judge did not show up.  The conference was set for 10am, and there was an email sent by their clerk at 9:36am informing me that the judge would not be there.  Their clerk had also left a message on my office phone extension at the same time.  As the firm does not have a transporter room (See Star Trek) and I don't read emails on the road (See Distracted Driving is a Bad Thing), I was not informed of this development until I arrived at the courtroom.

This was not a total loss for me.  In fact, to my adjuster I looked like a genius.  In my pre-conference report, I said that there was a distinct possibility that the judge would not show up, the conference being set on a Monday.  I related a previous experience from my days as a plaintiff PI lawyer.  My client had taken a bus from Fort Wayne, Indiana to appear at the same judge's Monday morning settlement conference.  That one had been set for 9am.  As my client and I stood outside the courtroom door at 8:55am, I received a call on my cell phone from the judge's clerk, indicating that that they would not be coming in that day.

This they/their/them stuff will be take a little getting used to.   I do have other stories about the judge, and I may put them in print sometime down the road.  However, at this time, no amount of indefinite pronouns would disguise their identity, and publication would not help my clients.