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)

PHONE A FRIEND

    When I started this site, I expected that a lot of the posts would be about the practice of law in Michigan,  back in the "Olden Days".  That term never had a solid definition, but somewhere  around the first decade of the new millennium and before seemed as good and vague a time to chose as any.  A time of paper files, no efiling and 3 public phones on every floor of the CCB.  

    Then came COVID 19, and there is now a line in the sand marking the "Olden Days" firmly at pre-March 23, 2020.  Now we are in the era of ZOOM, plexiglass, masks, remote everything,  no trials and no personal anything.  Progress will be defined as how and when we return to the past.  

    Not that a reminder was needed, but this weekend, I was impressed again with how fast times change.  When I tuned in to NBC last night,  Saturday Night Live showed up on prime time,  10pm.  There was a studio audience,  no masks on any one and no social distancing.  The audience was sitting closer together than fans at U of M Stadium or in the jury assembly room at Frank Murphy Hall of Justice (pre-March 23, 2020 historical references).  

     I clicked the info button on the remote and learned that this was a rerun of a show from 2013.  A mere 7 years ago.  No pandemic, and Donald Trump was nearing the end of The Apprentice. The old normal was indeed different, even unrecognizable. 

   On November 23, 2020, 8 months to the day from Michigan's first shutdown order, more lawyers practice from home than from their pre-2020 offices  Few of us have been in a courtroom or case evaluation room since March-even once.  We have become disoriented as our internal time clocks are no longer set by Monday mornings in Macomb, Wednesdays in Oakland and Fridays in Wayne.

    Many like working from home.  For my son (not a lawyer), working from home eliminates 2 hours of commuting.  And even though he keeps formal hours of work in a devoted space, he can see his very young children through the day.

    However, I have recently learned from lawyer friends that working exclusively from home is not necessarily all "Beer and Skittles" (Skittles the game like bowling, not the candy, which shouldn't go well with beer, but worth a try?).

     Last Friday, I needed some help with an issue under our new Court Rules.  Since May of 2019: the first comprehensive revision of the No-Fault Act since 1972, the first comprehensive revision of the Michigan Court Rules since 1985, and the COVID 19 shut down of the courts.  It never rains, but it pours.

"THE" CARTOON FOR THE "LOOK AT ME, I'M SPECIAL" GENERATION

From Will McPhail at the New Yorker:  "OK, 'abirdtookmyson.com' is taken, I'll try '.biz'."   

Impressively accurate punctuation as well.

Great stuff at "willmcphail4" on Instagram.

LEX FUGIT-JUDGE DALTON ROBERSON

Retired Wayne County Circuit and Recorders Court Judge Dalton Roberson, age 83, died on Tuesday, November 10, 2020, after being diagnosed with COVID 19.

His Detroit Free Press obituary can be found here.

Though the state of Michigan does not allow judges to run for election after age 70, I believe Judge Roberson did still work as a visiting judge well after mandatory retirement age.

After Recorders and Wayne Circuit merged in the early 1990s, and the court was split into Criminal, Civil and Family Divisions, some judges transferred from one Division to another.  Judge Roberson was one of the first judges to transfer from Recorder's Court, the new Criminal Division, to the Civil Division at the City-County Building.

I was the plaintiff's lawyer in one of Judge Roberson's early civil trials.  Funny thing, I don't remember what the case was about, or if I won or lost.  I have a very very vague recollection that I  might possibly have won, but who knows.  Too bad we didn't have LinkedIn back then, to catalog all of our victories (only)--the big, the small, and the trivial.

Whatever the outcome, the thing I do remember, was that Judge Roberson, despite being an intelligent judge, with a very impressive and dignified demeanor, was not only a good judge, but a humble one.

While he was instructing the jury, counsel had to interrupt and ask to approach the bench.  I'll never forget his first words to us:  "What did I do wrong?"  He was a judge who probably tried more criminal jury cases than I've had hot dinners, but he knew he was new to the civil "game".  And he was very respectful to the the lawyers who would help him in this new phase of his judicial career.

When you forget the case, and forget the outcome, but remember the man...well that is impressive.  Maybe not LinkedIn impressive.  But genuinely impressive.

 

TIME FOR A LINKEDIN PROFILE UPDATE

 

 

TO SAY THE LEAST.

 

HOW STELLA GOT HER GROOVE, HER NICKEL-AND MORE, BACK: A NEIL FINK STORY

(As told by Attorney Rick Lewandowski)

In 1999, Dave McNeill, who I worked for, and I began sharing office space with Dave’s friend, Neil Fink, the legendary criminal defense lawyer. Shortly after, Dave and I started acting as co-counsel to Neil on his plaintiff civil rights cases with good results.

Neil Fink

One day Stella Romanski came in to tell us about her experience at the Motor City Casino. Stella was a 72 year old former Arthur Murray dance instructor who paid $9 for a round trip ride on the Motor City Casino’s senior bus from Sterling Heights to the casino. Included in the price, was a meal ticket for an all you can eat lunch at the casino’s buffet.

Stella and her two friends took the casino up on its offer and upon arriving at the casino one very hot July morning, the three ladies split up and agreed to meet for lunch at 11:30 AM. Stella, who liked to play the nickel slots, was looking for a machine she thought would give her “luck”, and in the process, noticed a nickel token that a successful gambler abandoned in the tray of one of the slot machines.

Stella, who was old enough to appreciate the value of a nickel, picked it up and was immediately approached by a Motor City licensed security officer who told Stella that she had just committed a misdemeanor by violating an unpublished Motor City Casino policy that abandoned tokens were the property of the casino and not the person who found it.

Three other Motor City Casino security officers arrived on the scene and the four of them marched Stella to a windowless room and told Stella she had stolen property from the casino. They held her for about an hour, demanded her driver’s license and social security card, which she produced and after a while, took her photograph, prepared a written report and told her she was banned or “86’d” from the casino for six months.

They also told her she had to immediately leave the casino. She told them she came on their bus and had no way to get home. She also became nauseous and asked to use the restroom. She was permitted to do so, but one of the guards stood outside of the stall while she both cried and relieved herself. She was then taken to the casino lobby and told to wait there for her bus. She was also told the bus would arrive at 3:00 PM and she had better be on. They also refused to let her eat at the buffet. All the while, her friends were frantically looking for her in the casino.

At 3:00 PM, she was about to board the bus that she was told was hers, only to find out that the bus was headed to Saginaw, Michigan. She then sat down on the side walk outside the casino and “just cried”. Her friends eventually found her sitting on the sidewalk in the 90 plus degree heat, sweating and about to pass out.

We filed a false arrest, false imprisonment and intentional infliction of emotional distress case against the security guard and the casino itself in Wayne County Circuit Court. Neil was hoping, through discovery, that we could somehow establish a nexus with the City of Detroit Police Department, as it maintained an office at the casino, so that we could show state action sufficient enough to establish a federal 1983 claim.

Neil correctly knew that exemplary damages under state law would be far less than punitive damages under federal law. Also, since punitive damages are designed to punish the defendant, the casino’s profits were relevant.

Rick Lewandowski

I did the research and could not establish a nexus with the casino and the City of Detroit police department, but I did find case law in other federal circuits that held security officers, with certification under state law to make an arrest - such as the licensed casino guards in question - were state actors.

We filed a motion to amend the complaint right before trial to add a federal 1983 claim. The trial judge, who was I believe the first female Wayne County Circuit judge, was very difficult to be in front of. For those attorneys who have been around long enough, her courtroom was up on the 17th floor at the CAYMC building for several years. She retired in 2014 and now serves as a neutral case evaluator.

At the motion hearing, she interrupted my argument, brought us up for an off the record discussion and told me “I don’t know what you guys are trying to get away with, but I’m not buying it”. My opposition happened to blurt out that it did not matter anyways because if she granted the motion, the casino was simply going to remove the case to federal court.

The judge is no fool and she knew if she granted the motion, she could get rid of one case without breaking a sweat, so she did. The case was removed to federal court and was assigned to Judge Lawrence Zatkoff. The casino filed its motion for summary judgment and Judge Zatkoff, denied the motion, and in a published opinion, also ruled as a matter of law that the licensed security officers were state actors and better yet, under Michigan law, the token was lost or abandoned property that belonged to Stella and not the casino.

The case proceeded to trial and since the casino refused to produce any financial statements to show its expenses, Judge Zatkoff ruled we could admit into evidence the fact that the casino took in $1 Million a day in gross revenues.

Each day at trial, a number of federal court judges would stop by to watch Neil and some would call me out into the hallway and ask me how Neil was doing in this, his only civil jury trial in his almost 50 year career. On one occasion, Judge John Feikens told me “the whole courthouse is rooting for you guys!”

APHORISMS FOR AGING ATTORNEYS-7

 

“There have been only two geniuses in the world — Willie Mays and Willie Shakespeare.”-Tallulah Bankhead.  Though Ms. Bankhead died in 1968, I think this remains true today. True genius is hard to find, stable, legal or otherwise-even if you pay for LinkedIn Premium.

“Youth may outrun the old, but not outwit.” Geoffrey Chaucer

"The gretest clerkes ben not the wisest men."  Geoffrey Chaucer.  My studies have indicated that "clerkes" is Middle English for "judges".

"Full wise is he that can himselven knowe.-Geoffrey Chaucer.

"One eare it heard, at the other out it went."-Geoffrey Chaucer, after losing a discovery motion on Friday morning at Ye Olde County Building.

"The lyfe so short, the craft so long to lerne,
 Th’ assay so hard, so sharpe the conquering." -Geoffrey Chaucer. 

That Jeff Chaucer was a smart guy indeed.  And his quotes sound the more impressive as they are in Middle English, forsooth. 

 

LEGAL GENIU$$$$

 

Back when I was a plaintiff PI attorney, I ran a blog, now dearly departed.

One of that blog's categories was "Tasteless Lawyer Advertising"-and remember I was a plaintiff PI lawyer at the time.  

Billboards were a bigger thing back about 10 years ago.  They're still around, but there doesn't appear to be as many.  Of course, I am not driving down  I96 to Wayne County Circuit Court so much these days.  

Presently, TV ads predominate, and I blame several local PI lawyers for turning me off to "Big Bang Theory" reruns, forever.

On my old blog, I took particular issue with the billboards of the local firm "Legal Genius".  I couldn't find pictures of the billboards online back in 2014, so nincompoop that I was (and still am), I pulled over on 96 and took the low quality photos shown in this post.

The first, a picture of an older woman, holding a great wad of cash, thumbs up, with the thinly veiled message:  "I'm Rich, B*t$h!"  Please note that the thumbs up and exclamation point continue to be used to convey emphasis, credibility and authority at the highest levels, even up to the present moment.

The second below:

"Legal Genius Lawyers with HUGE balls."  Again, the word "huge" with one pronunciation or other, is still used to convey emphasis, credibility and authority at the highest levels, even up to the present moment.

These ads were so tasteless that even I was shocked.  Pandering dreck, unworthy of a profession whose standards in this area could be set higher.  

Well, fast forward about 6 years, and we come to find out that Legal Genius had more than huge balls.  It also had a lot of accident reports it obtained, and used, illegally.

On October 15, 2020 the owner of Legal Genius, attorney (for now) Matthew Schwartz, of Birmingham, pleaded guilty to conspiring to defraud the IRS and stealing "unapproved" Detroit Police Department crash reports in order to target crash victims.  He faces a maximum sentence of five years in prison on each count, and a $250,000 fine for the conspiracy offenses.  

The reports were used  to solicit crash victims for personal injury lawyers, chiropractors, health care professionals, and other businesses.  And, on the state level, such activities "arguably" violated state criminal statutes and provisions of the Michigan No-Fault Act.

The scheme involved was fairly complex, with lots of money going to a lot of people and shell companies.  In fact, some payments were made in cash, with money deposited in, and retrieved from,  a barbecue grill in the backyard of Schwartz' personal residence.  Apparently, Legal Genius has lawyers with huge grills as well as huge balls.

THE LATEST LAUREL OF ACCOMPLISHMENT

 

Shown above is but the most recently bestowed token celebrating a career of sterling achievement, honors, and courtroom victories without number.  Just one more memorial of the thanks of a grateful nation, and acquired at a very reasonable, one time only charge.

Those who have seen my business signature block, shown below, are familiar with my status as a Junior G Man as well an official of the following:

The Radio Orphan Annie Secret Society;

The Buck Rogers Space Scouts;

The Dick Tracy Secret Service Patrol (wherein I am also the Inspector General).

.

You can keep your Super Lawyers, Lawyers of Distinction, and your Premier Lawyers of America.  A bona fide commissioned officer in Buck Rogers Space Scouts finds himself in some pretty exclusive company these days.

Much like the de luxe, upgraded plaques available from the "pay to play" lawyer honor societies (see below), I opted for an enhanced Junior G coffee mug.  Black handle and mug interior.  After all, when you are a board member of such an august organization, you deserve to pay for the very best.

The mug will be displayed proudly on my office credenza between my Buhl Bar shot glass and my Knights of Pythias coffee creamer.

 

 

CARTOONS FOR SEASONED PROFESSIONALS 1

 

A.  FOR LAWYERS AND OTHERS

 

 

B.  AGAIN.......

 

 

C.  FOR ALL LAWYERS OF ALL AGES

 

FEEDING THE HUMBLEBRAG BEAST

I do have several media accounts, but I really don't pretend to understand them .  For instance:

My Instagram account (4 years):  Never posted anything.

My Twitter account (7 years): 4 original Tweets-maybe.  I'll never make it in politics.

LinkedIn (6 years): 2 total posts/shares, which I don't think I can find on my "page" or whatever they call it.

Facebook Page (11 years):  Very few personal posts.  No politics. No pictures of my food.  No family business shared.

The one exception to this level of activity is a Detroit Catholic Schools Group page I moderate on Facebook.  Number of members?  Humility forbids. And if there is a way of measuring "hits" I haven't been interested enough to find out.

LinkedIn is supposed to be the social media platform for professionals.  It is (or maybe has become)not a business resource, but a nauseating morass of shameless self congratulation and self promotion.

The 2 most common words on LinkedIn:  Humbled and Honored.  And the bar for LinkedIn's "humblebrag" accomplishments is set pretty low.

As to self-promotion, and here I kid you not (as Jack Paar used to say), a young lawyer of my very limited acquaintance, last week posted a redacted copy of an arbitration award he obtained when he sued a tenant on behalf of a landlord for the full unexpired future term of a leased property the tenant had vacated during COVID.  He invited people to contact him so he could do the same for them.  Thanks for pitching in during the crisis, chief.

LinkedIn is not set up the same as Facebook.  It is hard to find someone's past posts unless you are really interested in finding them, and who is?

So, to keep yourself in the forefront on LinkedIn, you have to post a lot.  Under such conditions, keeping the Humblebrag Beast that is LinkedIn, fed can be a challenge.

I am here to help.  These are accomplishments from my own recent experience.  Please feel free to use: