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 [email protected].  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)

LEX FUGIT-A JUDGE SUSAN BORMAN eBAY ODDITY

There is a lot of interesting and bizarre stuff for sale on eBay.  I have previously written about finding matchbooks used by Wayne County judges in their election campaigns.  I am interested in Detroit history generally, and Detroit legal history as a subset of that.

So, what do I find in my searches but the above item, listed at $19.99 and still available. The listing, entitled "1978 Press Photo Susan D. Borman Judge Wayne County, actually consists of 2 items.  One is a very nice studio grade picture, as advertised, of then Detroit Recorders Court Judge Susan Borman.  Back in 1978, Detroit Recorders Court heard criminal felony cases arising in the City of Detroit.  That has changed since, and there is a Criminal Division of Wayne County Circuit Court that hears felony cases from the whole County.  In 1978, Wayne County Circuit Court heard civil and domestic matters for the whole of Wayne County, and criminal cases from that part of the county outside the city of Detroit.

Judge Borman, who had served on the Recorders Court bench since 1972, decided to run for the Circuit Court bench in 1978.  And, this is covered in the second item of the eBay listing, which is a July 12, 1978, Detroit Free Press article reporting that the Detroit Bar Association, through its public advisory committee, had rated Judge Borman as "unqualified" for election to the Circuit Court.  The entire committee of 520 members evaluated judicial candidates on their legal ability, trial experience, integrity, honesty, judicial temperance, health and reputation.  Judge Borman was the only candidate rated as "Unqualified".

At the time of the election, Susan Borman had been a licensed attorney for 9 years and a trial judge for 6 years.  

So many questions.  Why would anyone save these items for 45 years?  Why was Susan Borman rated as Unqualified, with all her experience?  What evaluation committee has 520 members?  The item was listed by the Historicimages-store, which has sold over a quarter million items on eBay. No way to contact a seller that might have personal knowledge.

 By the way, she won the election, by the way, and served continuously on the Circuit Court until she could no longer run, sometime around 2014.  I appeared before her, many, many, many times.

I am a proud member of the Detroit Bar Association and serve on the Judicial Evaluation Committee, which has a lot less than 520 members.  I have never had to rate Susan Borman as a judicial candidate.

 

THE ETERNAL GENERAL AND A LITTLE BUTLER FAMILY HISTORY

Earlier this week I finished reading the autobiography of Frank Kelley, Attorney General of the State of Michigan for 37 years, 1962-1999.  I found the book, written "with" Jack Lessenberry, at a recent trip to Detroit's great John A. King bookstore. 

The book is called "The People's Lawyer", which is important.

I don't read autobiographies much, as I generally know how the story ends, and there are only so many ways to get around starting most of your sentences with the word "I".  But I really liked this book, which I felt got better as it went along.  I hope to submit a review for an upcoming issue of the Detroit Bar Association's Detroit Lawyer magazine.

Mr. Kelley holds several Michigan AG records-he was the youngest when appointed, and the oldest when he decided to step down in 1999.  While those records could be broken, his 37 years in office will stand forever (while Michigan has term limits).  His last day as AG was his 75th birthday in 1999.  Thereafter he went into private practice, starting the firm Kelley and Cawthorne.  He stayed with the firm as owner and consultant until 2014.

A lifelong Democrat, he served most of his time as Attorney General with Republican Governors:  George Romney, William Milliken, and John Engler.

Frank Kelley served through some very contentious times.  He was appointed the year of the Cuban Missile Crisis.  He served during the Vietnam War, the Civil Rights movement, and the Detroit Riot.  He was a pioneer in consumer and environmental protection.  He was true to his oath.  He was the people's lawyer, and not the governor's lawyer.  He learned that the people were best served if those in government cooperated in solving the state's problems.  He was a Democrat but did not believe in the type of "Party First, Last and Always" politics that currently plagues this country.

LEX FUGIT-1977 DETROIT BAR ASSOCIATION PICTORIAL REGISTER

When I started work at the law firm of Bernstein and Bernstein (not Sam), attorneys did their legal research in the law library, using statute books, case books and digests that were updated annually by means of things called "pocket parts" stuck in a slot in the back of a particular book.  Each year, you pulled out the old pocket part, threw it away and stuck in the new one.  Whole volumes could get superseded by new volumes.  A clerk could keep very busy trying to make sense of the various paper systems.   Many didn't.  

With internet research, those days are now gone, though most of the old volumes remain in the library.  Gives the joint a touch of class, at best, and no one will open the books to see that that the pocket parts are dated 2009.  Can't be sold at any price and can't be given away-no one will take them.

The B&B library did have one timeless item, which I have never seen anywhere else, during a long and colorful career.  I refer to the 1977 Wayne County Lawyer Pictorial Register, put out by the Detroit Bar Association.  The book came out before I was licensed (thank God), but it does contain pictures of many lawyers and judges I had cases with over the years.  It is like looking at an old high school yearbook, where everyone is a senior.  

I know this book is rare.  I haven't even seen it in the Detroit Bar Association archive, such as it is. That is a story for another time.  The book, Wicked Detroit, has a reference to a statement issued by the Detroit Bar Association in1824.  The current DBA prides itself as being the country's second oldest bar association, founded in 1834.  I don't know what documentation may support that assertion.  How the archive of the organization is now comprised of a couple of bankers' boxes, a white board and a half shelf of the organization's magazine, from 1946 forward, defies understanding.  It has certainly defied my attempts to find an explanation.

In the late 70s, the DBA membership was overwhelmingly white male.  However, 70s styles for white males are in evidence, with the longer hair and muttonchop sideburns affected by some of the younger lawyers.  One of the more restrained portraits, is that of Kaye Tertzag, then a mere 8 years out of law school.  I first met him in 1987 when he became the first downriver lawyer to be appointed to the Wayne County Circuit Court Bench.  Back when the DBA picture was taken, "Mr. Tertzag" might have still been practicing law at night after working his day job as a teacher at River Rouge High School.  He stepped down from the bench in 2004 to become one of the first, and always one of the best, facilitators. 

Though I never remember Judge Tertzag with a mustache, or hair quite that long, the DBA portrait is a very good one.  That can't be said for all of the entries in the Register.   I would often show new B&B employees the 1977 pictures of their bosses, and then told them to visualize those pictures when called into the bosses' office.  I was told it helped-on occasion.

Back to Judge Tertzag for a moment.   The Tertzag Tribute Dinner (popularly known as the Purple Sport Coat Dinner), which honored the legacy of Judge Terztag, started in 2010.  I had the honor to be on the committee that started the event, and I served as emcee for most of the award banquets.  The last event was held in February, 2020, and the COVID lockdown started less than a month later.  There hasn't been a Purple Sport Coat event since.  The role of the committee had diminished in the years leading up to the pandemic, so I don't know if the event will return in February of 2024.  We'll see.  If nothing happens, I do have a cunning plan of my own.

BERNSTEIN & BERNSTEIN (NOT SAM) ALUMNI MEETING

A couple of weeks ago (mid-April 2023), a small group of the Bernstein & Bernstein Alumni Association met for lunch at Mr. Joe's in Southfield.  This was the first time many of us had seen each other since the March 2020 COVID shutdown.  

I worked for B&B for quite a while and early on I learned that the "not Sam" had to be included when I introduced myself, especially to juries.  There is a family relationship between B&B and Sam's office.  Newton Bernstein, the last of the Bernsteins at B&B and Sam Bernstein were cousins.  There were originally 4 Bernstein brothers, all attorneys when B&B was started in 1923, and I never understood why the firm was called merely Bernstein & Bernstein.

Most of our small group of alums still work on the plaintiff side of PI law.  I was the only one who crossed over to the defense.

In the late 1990s B&B had 10 attorneys.  Now there are 3.  

As previously stated, B&B was formed in 1923, making this the centennial year of its existence.  A friend still at the firm states that there are no plans to mark the event.  

As my humble tribute to the occasion, I have located a few pictures I doctored up and included in a blog I had back in my plaintiff days at B&B.  It was a play on attorney advertising.  I indicated that I had discovered the photos evidencing B&Bs pioneering efforts in advertising, circa 1935.

The first, which is at the top of the post, is an actual photo, showing a blimp crossing Washington Blvd, in Detroit, between the Book Cadillac Hotel and the Book Tower.  Both those buildings have been renovated after decades of neglect.  The slogan "Blimp Hit U", was a reference to a Detroit area PI who used a similar slogan in his advertising.  Subsequent events, for him, have not been so great.

The next photo was based on a past fad of including lawyer ads prominently on the back, sides, front and top of public buses, and the use of firm owners' pictures in ads.  Here is what such ads looked like in the early days of B&B.

We are now familiar with celebrity spokespeople for various local firms.  For those not familiar with popular culture of the 1930s, movie serials were very popular, and new installments were used by film studios to get people to come to the theaters every week.  One of the most popular serials was Flash Gordon, as played by Buster Crabbe, former Olympic swim champ.  The villain of the series was Emperor Ming (the Merciless) of the planet Mongo.  The slogans "Ta-Ming Insurance Companies" and "Service in a 'Flash'", were naturals.

This reminds me.  I had a professor in law school we referred to as "Ming the Merciless".  If the prof had removed his toupee, the physical resemblance would have been uncanny.  He also used a textbook that was 40 years old-a real throwback.

 

So, Happy Centennial to Bernstein and Bernstein.  I look forward to the next meeting.

MATCHBOOK TWENTY TWENTY-THREE

While prepping for a bit of remodeling, we cleaned out a few cupboards, including a little one above and sort of behind the refrigerator.  Most kitchens have a cupboard like this.  Pretty hard to reach, unless you have the wingspan of an NBA center, and a stepladder.  If anything ends up there, it is something you know you aren't going to use often.

In our cupboard was a long-forgotten plastic bag full of commemorative matchbooks.  And for our Generation X,Y,Z, and Alpha, audience, matchbooks were small remembrances of family and friends' weddings, restaurant meals, hotel stays and tourist attractions.  Also, matchbooks were cheap advertising for all kinds of businesses, from plumbing supply companies to, ironically, life insurance companies.  We have our collection, even though neither my wife nor I smoked cigarettes-at least not during our marriage.  And, when we picked out our wedding invitations, napkins etc, we also picked out matchbooks, complete with names and date of marriage.  We still have a few, but identity protection concerns preclude posting a picture here.  Yeah, we're going with identity protection here vs the disclosure of ancient history.

And another interesting category of matchbooks-election campaigns.

Matchbooks were really a genius advertising move.  Way back, lots and lots of people smoked (watch any 40s movie).  So, while business cards and election handbills were easily thrown away, matchbooks were useful, 20 times in fact, and you carried it with you at all times.  And at one time you could smoke everywhere.  Offices, bars restaurants.  I once watched a 50s vintage movie wherein the patients in a male hospital ward were smoking in their beds.  I don't have a memory of smoking ever being allowed in courtrooms, but I would bet money that it was.  I have certainly been in judges' chambers wherein smoking was allowed, starting with the judge.

A recent search of eBay featured the matchbooks shown in this post.  I appeared before Judges Strong, Dingeman, Jr. and Bashara.  I tried a paternity case before Judge Harry Dingeman, Jr. in his courtroom in the Old County Building, back in the days before DNA testing.  I refer to Judge Dingeman as Junior as his father was also a Wayne County Circuit Court judge.  

Judge Strong retired from the Circuit bench just 2 years ago.

I found another interesting matchbook this week, shown below.  Judge Helene White is currently sitting on the 6th Circuit Court of Appeals, just one step below the US Supreme Court.  I appeared before her many times in Wayne County Circuit Court.  Her campaign matchbook was unique.  In addition to her photo on the outside, the inside contained a mini-curriculum vitae.  Genius.

THE END OF AN ERA: MAX NEWMAN AND SONS

On March 29, 2023 I received the letter, below, from a friend.  Dr. Steven Newman, the last member of the Detroit Institute of Physical Medine and Rehabilitation, located at 25811 West Twelve Mile Road, Ste. 200, Southfield Michigan, was retiring, effective March 30, 2023.  I hope this is not health related for Dr. Steve.  I think he has reached normal retirement age, for most.  

According to the letter, the Insitute has been in existence for 70 years, started by the legendary Dr. Max Newman, around 1953.  

The Newmans, father Max, and sons Steve and Don were, over that time, as reliable a source of pro-plaintiff medical opinions as Medical Evaluation Specialists continues to be for pro-defense opinions.  

In my plaintiff days, at Bernstein and Bernstein (not Sam) I had quite a bit of contact with Don and to a lesser extent Steve, though I did meet Max once.  I am not in a position to relate any of the many stories about Max, which include a kidnapping.  I hope someone has.

B&B used Don and Steve, not for treatment, but essentially for a plaintiff's IME, to at the very least counteract any defense IME.  If the jury said, "Curse all IMEs", that was a measure of success, as the jury would then decide the case based on the opinions of the client's treaters-hopefully favorable.

But I have had Don win me trials, especially my first at B&B, which happened 2 weeks after I started there.  More of that a little later.  The Newmans had an advantage the defense IMEs didn't.  The defense had to disregard the plaintiff's complaints, often calling them malingerers, frauds and/or liars (motivated by "secondary gain").  If the defense docs had to find the complaints credible, they might have to admit there was something wrong with them.  That was not helpful.

DETROIT LAWYER-MEETING MR. WONDERFUL

The Detroit Lawyer magazine just published an article I wrote about the first time I met "Mr. Wonderful", Rik Mazzeo, back when I was a plaintiff lawyer. Our case was the first and only time I had a judge rule, as a matter of law, that the same accident happened on 2 different dates, 5 days apart.

 

Later when Rik and I worked together at Landry, Mazzeo and Dembinski, I appeared before Judge Timothy Connors of the Washtenaw Circuit Court on a Summary Disposition motion which had been brought against our insurance client. I introduced myself and Judge Connor said, "You aren't Mr. Wonderful. Who are you?'

 

I replied, "Judge, I am Mr. Striving for Mediocrity and Failing."

 

We survived the motion and the other side appealed, so the transcript of that little interaction was produced and is now part of the records of the Michigan Court of Appeals. To quote Humpty Dumpty in Through the Looking Glass, "That's glory for you."

 

REMEMBRANCE OF CHIEF JUDGES PAST

As with every post-election new year, changes have come to the Michigan court system.  In Wayne County Circuit Court, the end of 2022 saw 5 judges leave the Circuit Bench.  Judges David Groner, James Chylinski, John Murphy, Thomas Hathaway, and Chief Judge Timothy Kenny have retired.  There are new circuit judges, a new chief judge, and judges have moved among the court's three divisions.

The chief judge does not carry an individual trial docket. The duties of taking care of by far the largest court in the state keep the chief busy enough.  

Fortunately, during my litigating career, I did not need to visit the chief judge's 7th floor courtroom too often.  Such a visit usually resulted from a bigger than usual problem with a case.

Way back, visits to the chief judge's courtroom were much more common.  There were 2 major reasons:  trial adjournments and mediation (now case evaluation) responses. 

First, adjournments.  Individual dockets for Wayne County Circuit judges are a comparatively recent development.  Until sometime in the mid-1990s, there was virtually no chance that the judge whose name was stamped on your freshly filed civil summons and complaint could be your eventual trial judge.  The judge assigned at the time of filing would hear motions on issues that would come up during your 26 months (yes, you read that right) of discovery, and through mediation (now known as case evaluation).  Sometime after the accept/reject date for the mediation award passed, you’d be scheduled for a settlement conference with a judge who was on “settlement conference” duty for that particular date.  That judge would not be your trial judge either.  If you did not resolve the case at the settlement conference, you had to be ready to try your case immediately, with an available judge given the case by the Assignment Clerk.  Or you could sit outside the Assignment Clerk’s office on the 17th floor for a day or two, awaiting assignment to a newly available judge.  Or you could be sent back to the office for a few days to await assignment.  Or you could just be told to come back with your client in 6 months to repeat the settlement conference/trial assignment tango.  I experienced all of the aforementioned scenarios.

(Note:  I remember one time when I got the assignment call.  I was in my office that afternoon interviewing a potential client.  She was very excited at the prospect of being a personal injury plaintiff.  But she told me she was disappointed in my interview, as she expected it to be more like LA Law.  Then the phone rang, and I was directed to appear before Judge Lucile Watts the next morning for trial.  (I did.  We won.)  Now that was fairly close to something out of LA Law.  I don’t remember if the prospective client was impressed.  I do remember her enthusiasm was somewhat dampened when I declined to take her case.  I don’t know if she ever found her Arnie Becker.)  

Back from the tangent.  What role did the chief judge play in the previously described system?  All motions for adjournment of the settlement conference/trial date had to made before the chief judge.  None of those motions involved cases on the chief judge's (non-existent) personal trial docket, so the chief had no dog in the fight as to any particular adjournment motion.  If the request resulted from a conflict with a prepaid vacation, you might get a sympathetic response, but you had better be ready to cite specifics as to your date of departure, return, prepayment, cancellation charges, etc.  If you had multiple cases that might be tried at the same time, the chief judge might give you some relief, like "We won't make you try 2 cases at once.  You will try the second case immediately after the first one is done".  "Thanks, Judgie, you're a pal."  I once heard a judge reply to a trial conflict adjournment motion with "Hire more attorneys".

NEW JUDGES-1981

I think I came across this on Judge Wendy Baxter's FB page.  It is a December 17, 1981, article from the Legal Advertiser, concerning the swearing in of new judges of the 36th District Court.  New judges, Wendy O. Baxter, Cynthia D. Stephens, James R. Chylinski, Gerald Brock, Alex J. Allen, Jr., and William J. Hathaway.

In December 1981 the ink was barely dry on my law license-and marriage license.  In fact, December 17, I think was my first day back to work after our honeymoon.

I don't know if the Legal Advertiser exists anymore, but it was one of the 2 big local legal newspapers back then, in the hard copy paper era.  The domain legaladvertiser.com (and who in 1981 knew what that would mean) is currently available for purchase.  

I do remember appearing before all of those judges, though not necessarily in 36D.  Many went on to Wayne County Circuit Court, Civil and Criminal divisions, and Judge Stephens went on from Wayne Circuit to the Michigan Court of Appeals.  

Some of those new 1981 judges have passed, and others have retired as judges (Michigan does have a judicial age limit), but maintain ADR practices.  Judge Chylinski is still listed as a judge in the Criminal Division of Wayne County Circuit Court, but I believe he may be retiring at the end of the year.

This is the kind of picture that can make one feel "old". But the more I think about it, the memories of appearing before these judges (and others), often on Friday morning motion call in Wayne County, reminds me of how great it was/is to be a Detroit lawyer.  And, though few will admit it, how great it was (and "was" is the appropriate word here) to run around the halls of justice with other members of the Brotherhood.  Today's litigators, practicing primarily from the comfort of home, don't know what they have missed.

LEX FUGIT-JET MAGAZINE JULY 9, 1964

I have seen this photo posted several times on Facebook over the years.  The cover story, entitled "Women Lawyers To Aid Mississippi 'Freedom Corps'", appeared in the July 9, 1964 issue of Jet magazine.

The cover photo shows two of Detroit's own, attorneys Claudia Shropshire and Anna Diggs.  In my career I appeared before them both, Judge Claudia House Morcom of the Wayne County Circuit Court, and Judge Anna Diggs Taylor of the US District Court, Eastern Division in Detroit.

I was able to hunt down the actual article and have posted screen shots below.  Although the writing style is perhaps indicative of another time, what does come through is the risk these lawyers faced in their fight for justice for their clients.  The personal danger was real. 

I realize that I did not fully appreciate the challenges many of my judges encountered before they wore the black robe.  I am sure they loved hearing the likes of me bitch about overdue interrogatory responses.