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)

LEX FUGIT-AN AWFUL DAY

Many of the posts on this site look on the lighter side of trial lawyers' experiences in Detroit.  This is not one of those stories.

Back in 1988, I was an attorney with the plaintiff PI firm of Thurswell, Chayet & Weiner, which no longer exists, though many alumni continue to practice in the Detroit area.  

The day before Thanksgiving that year, I was second chair to Barry Goodman  (now the Goodman of Goodman, Acker) in a very tough liability case being tried in Federal Court in downtown Detroit.  Having 2 lawyers on a single trial at TCW was a pretty unique experience.

I don't remember the judge, though he was a legendary tough customer (which doesn't narrow the field too much).  I don't remember the names of the parties or of opposing counsel.  While I can't remember the names of the plaintiff and his wife (he was injured, she had a consortium claim)  I remember them, especially the wife.  They were good people.

The case was so tough that we did not invest in the expense for a videographer to show the doctors' depositions in court.  Part of my duties as second chair was to read the part of our treating doctors.  Not as good as video, but better than having a law clerk trip over the pronunciation of medical terminology in front of the jury.

Cell phones, to the extent they even existed (I don't think they did), were not allowed in the federal courthouse, even for attorneys in trial

That morning, as I was leaving for trial, we received a call at home from my wife's sister.  My wife's dad had suffered a heart attack that morning.  Little was known about his condition.  EMS was taking him to the hospital.  My mother in law was in such a state that she could not provide any real information as to what happened.  My parents came over to watch our only child at the time.  My wife went to the hospital and I went to court.   There was no way to get word to anyone at court or to Barry.

PERSISTENCE-WELL DONE, ANNA

In my previous post, found here I discussed some older law firms that were out of business (but alive and well according to the internet). In what I thought was an ironic twist, I recalled that the office space of a firm that did almost exclusively State Farm defense work, was now occupied by a large plaintiff's PI firm.  Well, that was too good to be true.  While the old firm and new firm were in the same Southfield office building, the suites were 3 floors apart. In the process of fact checking that, I went to the current firm's website.

As is the case on most plaintiff firm websites, I was greeted with a "Can We Help You?" box.  However, the choices were not, Yes or No, but Yes or Later.  Crafty.  I chose Later to make the box disappear, and less than a minute later, my sought after information in hand, "Later" became "Now" and the following colloquy occurred.  As it went on I decided to screen grab the whole thing.  I just include just one of them here, with the ID information obscured.  About 10pm, by the way.  Here is the transcript.  Dramatis Personae: MB (me) and ANNA (Anna)

ANNA:  Wait! Don't Go! We want to help you!  What type of case brought you here today?

ANNA:  Auto accident?  Personal Injury?  Social Security?

MB:  Just wanted to double check your office address for a blog post I am doing.

ANNA:  Our main address is (redacted).

ANNA:   Before we continue, may I have your first and last name?

MB:  No need to continue.  I found the information I needed.

ANNA:  Can you please tell me a little more about what happened?

MB:  Googled (redacted)'s name, and found the website and got the address.  The End.

ANNA:  I understand.  Would it be OK if one of our lawyers who specializes in this are contacts you directly?

MB:  Always nice to talk to your people, especially your receptionist who always calls me "Darlin", but I am fine.

ANNA:  May I have your phone number and email address?

MB:  A for effort, Anna, but we should both move on.  Have a nice night. Say hi to my buddy Tom Calcatera for me. (ed, as I hadn't given my name, not a great response on my part.)

ANNA:  Hello, how may I help you? (Possibly Anna's supervisor is fielding this now).

ANNA:  Sorry.  Can you please make sure you give us your 10 digit phone number, including area code.

MB:  Yike.

ANNA:  I think you can best be taken care of by one of our legal representatives.

MB:  Oh, dear. Signing off.

ANNA:  I REALLY (ed. we are getting serious here) want to help, but I think that one of our legal representatives (unfortunately not me) will be able to serve you better.

As I had 2 ZOOM conferences before 10 am the following morning, I closed out at that time.  I know, the sadist in me should have tried to see how long I could get this to go on before Anna gave up.  But, but the poor lady/gentleman/bot deserved a break before I got out my A material.

LEX FUGIT-SPECTERS OF LAW FIRMS PAST

Not sure what got me thinking down this path today.  Maybe I was looking for anything to get the word ZOOM out of my mind (webinar, meeting, facilitation and expert dep on that platform in 26 hours).  But, the name of an old Southfield law firm popped into my head.  The firm, Romain, Donofrio, Kuck and Egerer did State Farm work, almost exclusively.  The firm's office was located at 24901 Northwestern Highway in Southfield, an address now associated with a much larger law firm on the other side of the "v".  Mike Morse's office seems to have been at that address forever, but the Romain firm was gone before Mike took up residence.

The Romain firm, in its heyday, probably had about 15 lawyers.  State Farm was not the biggest carrier in the state in those days.  The company had an interesting way of handling its legal work.  It had 2 house counsel offices, each with only 2 lawyers.  The firm of Virant and Burdick, in Livonia, and the firm of Moreen and Chapelle in Southfield.  The heavier litigation matters went to a select few firms-the Romain firm, the Eggenberger firm and the Draugelis Ashton firm.  Romain was probably the biggest.  Now State Farm has a very large house counsel operation, and its work sustains several very large and small defense firms.

All the previously mentioned firms are long gone.  Floyd Virant, a good friend, died several years ago.  However, he worked for many years at several law firms after Virant and Burdick dissolved.  One of those firms was Draugelis and Ashton.

Which brings me to the point, if any, of this post.  I decided I'd look up those firms on the internet and see what, if anything I could find.  First, I looked up Virant and Burdick, a firm that did not see the beginning of the New Millennium.  I found this prominently displayed on the first Google results page:

MOTION DAY IN WAYNE COUNTY RESUMES (VIA ZOOM) FRIDAY, MAY 29, 2020

 

 

I think I will be saying this on May 30, 2020.

 

DETROIT BAR ASSOCIATION BOARD OF DIRECTORS

I am running for a seat on the Board of Directors of the Detroit Bar Association.  Ballots must be submitted by Friday, May 22, 2020.

You must be a member of the DBA to vote, and members have received an email listing the candidates and providing a link to the ballot.

I am sure all the very nice and qualified people on the ballot would appreciate members' consideration.  And so would I. 

If you would like to know more about me, please see my firm's website, Landry, Mazzeo & Dembinski, and my personal blog on the passing legal scene in Metro Detroit, Lex Fugit.

Best of luck to all the candidates.

My name is Michael J. Butler, by the way.

LEX FUGIT-JIM FINNEY

When it comes to the facilitation "game", the olden days are now defined as any time prior to March 15, 2020.  An age when most people thought of ZOOM, if at all, as an old PBS kids' show from the early 2000s.

In those early days of the Millennium, facilitation had not yet become the default Circuit Court Settlement Conference, and part of every attorney's retirement plan.

Back then (I guess we'll call it the Mesozoic Age, when you wanted to facilitate, you generally thought of these 3 men:  Judge Kaye Tertzag, Henry Maher, and Jim Finney.  Also, facilitation was called facilitation, not mediation like it is often called today.  Case evaluation was called mediation at that time, hence the name Mediation Tribunal Association.  Simple, isn't it.

Jim Finney was the default Macomb County man.  This might also have been because Judge Michael Schwartz of the Macomb Circuit Court would send a case to facilitation, and appoint Jim as the facilitator.  The End.  Sending a case to facilitation, and mandating the facilitator seems strange now, when there are so many facilitators out there.  But it is still done.  I've had it happen to me, very recently.

Jim's full obituary can be found here.  He apparently was known as "Big Dog" (though not to me), but the name fits.  Jim wasn't a member of a mediation/arbitration consortium, like JAMS, with a fancy website, fancier office and fanciest hourly rates.

Jim had been in the trenches without a black robe.  He knew how the game was played.  He had a standard opening speech, and as I only had cases with Jim while I was a plaintiff lawyer, I only know the version he gave in the plaintiff's "caucus" room.

Paraphrased, though I use quotes:  "I've tried hundreds of cases.  Let me tell you, that if you don't settle today, you're looking at a jury trial date about 2 years from now.   And if you win, the insurance company can take the case to the Court of Appeals, and if they lose there, they can try to go to the Supreme Court.  They don't care. They've got the money and all the time in the world.   All that can take another 2-3 years.  So, you may not get your money for 5 years. "  That is shortened considerably, by the way.  

ATTORNEYBUTLER.NET FOUL TIPS-A TALK WITH DAVID H. FRIED

Ed.  A post from February, 2009, 11 years ago now.  David was licensed in 1956.  This article is very relevant to the Lex Fugit project. I did make a couple of mistakes.  Firstly,  I didn't take David's picture at the time, and I can't find one on the Internet now.  And secondly, I didn't keep up with David like I should have.  I am not sure if he is still with us.  Though his law office shows up at the top of a Google search of his name, his office phone is disconnected and he is not currently a member of the Michigan Bar, even on emeritus status.  David Fried is not an uncommon name, and I can't find reliable information about David.  However, I do see a reference to a David Fried of about the same age I think, somewhere in Florida.  I hope that's him.  

"On Saturday, January 31, I sat down and talked with Detroit attorney David H. Fried. David does plaintiff personal injury and general civil work from his office in the Penobscot Building. A U of D Law School graduate and an US Army veteran, Mr. Fried is now beginning his fifty-third year practicing law. Starting out at a time when most Detroit attorneys had their only office in one of five "inner-ring" Detroit office buildings, David has continued to maintain his practice from a downtown office. Many, many firms have moved out of Detroit to places like Southfield, Troy and Farmington Hills over the years. A sole practitioner in a downtown office is quite a rarity these days.

David and I met years ago when we each had one of the many parties to a case involving a residential real estate transaction gone bad. These can be difficult cases and David represented the disappointed buyer. Through some prolonged litigation and negotiation, David impressed me with his grace and civility. He has the kind of presence and elegance that I would hope to find in our diplomatic corps.

Though we haven't had a case together since (plaintiff PI lawyers seldom do), I have seem him in action from time to time. He hasn't changed. I have seen him a few times in the Metro area and he has greeted me like I was a dear friend.

Most recently I saw him in a Livonia restaurant on New Years Eve afternoon. I was there with my family, having taken

e off during the holidays, as most attorneys do these days. David was there eating lunch on his way home from the office, having had his office open (though only a half day) on New Year's Eve. I asked if I could sit down with him and talk. You see, I am a fan.

As something of a history buff, I expected David Fried would teach me something about the past. What he did was teach me some things about the present, which was even better.

LAWYER CARTOON OF THE WEEK 14 (APPROXIMATELY) LAW DAWG

SOCIAL (MEDIA) DISTANCING

I admit that I am possibly the dumbest guy on the internet.  I have yet to acquire the PhD from the University of my keyboard.  I restrain myself from uploading pictures of my food.  I don't post or respond on political/religious/sports issues.  I am extremely wary of all social media platforms.

I have now developed a personal "Top 3" list for social media posting, as follows:

3.  Look before you "share".  I know it is a burden, but take a few milliseconds to confirm that your source has some basis for what he/she/it is passing off as a cosmic truth.  If you discover that the author moderates a Marshall Applewhite fan page (see pic), has a homemade tinfoil hat store on Etsy, or is affiliated with any political party, you really should investigate further.

2.  Think twice, post once.  What's good enough for carpenters is good enough for me.  And, finally, the only real rule:

1.  Don't post at all (and especially, don't comment).

Most social media people don't follow any rules.  Posting, commenting, replying, insulting make them feel special or powerful in some way.  And no thought or effort is required, just a few keystrokes/thumbstrokes.  

I don't engage in social media "bun fights", no matter how stupid I consider the post.  Reading comments to any social media post makes you despair for the future of the human race.

Post (7:30am):  "I was inspired seeing the sun come up in the east this morning."

Comments (7:45am) (2,348):

Comment:  "You believe the sun rises in the east?  Libtard/Conservitard Idiot!

Comment:  "While you were watching the sun rise, I was working 3 jobs at the same time.  Privileged scum!!

Comment:  "Looking directly at the sun."  Typical (insert name of group you don't like here) a**hole".

Comment:   "I earned $5,000 a month working from home.  Click here and I'll show you how."

Comment:  "The Lions suck!!!"

Comment:  "This isn't a Lions forum, d***head, stay on point.!!!!

Comment:  "OK, the sun sucks, not to mention......, and your mother!!!!!"

ATTORNEYBUTLER.NET FOUL TIPS I-THE JUDGE TERTZAG ATTORNEY LETTER

Ed. Back in the late 00s to the mid 10s, I had a blog called www.attorneybutler.net.  I gave that site up in 2015, and the domain has been bought up by some sort of marketing enterprise.  So it goes. I recently discovered that I could recover the bare bones of some of my old posts, which can no longer be found on the net.  And some of those posts are relevant to the Lex Fugit project. I am not so arrogant as to call them "Greatest Hits".  I prefer "Foul Tips".  This first installment is from March of 2010, called the Tertzag Attorney Letter.

"At the recent Judge Kaye Tertzag Tribute and Award Dinner, keynote speaker Norm Tucker, talked about some of the research he did in preparation for his talk. He learned that Judge Tertzag would often write letters of appreciation to lawyers who had just completed trials in his courtroom. Certainly a very courteous and humble gesture for a judge, and a very unique one, in my experience. However, it was an action totally in keeping with Kaye Tertzag's character.

Well, yesterday, Mark Grayell, an attorney in my office, brought just such a letter sent to him by Judge Tertzag after a trial in 2003. With Mark's gracious permission, it is presented below:

Be prompt. Be prepared. Be polite."