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)

"THERE'S THE BRAVEST MAN IN WAYNE COUNTY!"--JUDGE DAVID ALLEN, WAYNE COUNTY CIRCUIT JUDGE, APRIL 17, 2015

To whom was Judge Allen, shown at right, referring--in open court, yet?

Your humble and obedient correspondent, no less.

Too bad I wasn't on LinkedIn at the time.  LinkedIn, our motto is "Modesty Never Forbids".

The occasion?  That morning, an article I had written called "Show Me a Sign", had just appeared in  Detroit Legal News.

At motion call that Friday, I think I was looking for an opponent who I had been informed was in Judge Allen's courtroom.  I opened the courtroom's door, and took a step in, searching for the lawyer.  Judge Allen, who I know quite well, was already on the bench, hearing a motion.  When the judge saw me, he stopped the hearing, pointed at me, and announced, well, the quote that is the title of this piece.  He said some nice things about me, and then got back to business.  I was busy signing autographs.

About the article:

I was still a plaintiff lawyer back then, and the article, which can be found here,  dealt with Michigan's Open and Obvious Doctrine.  Specifically, it dealt with judges who would  walk up and down the parking ramps in the Ford Auditorium underground parking facility across the street from the City County Building, in defiance of the "Do Not Walk On Ramp" signs, one of which is shown below right.  

Many of those judges would thereafter arrive at their courtrooms and then grant Summary Disposition motions on premises liability based  on  the  Open  and  Obvious  Doctrine.

The article set forth a colloquy from such a Motion's argument:

"Judge: Counsel, I am granting the Defendant's Motion for Summary Disposition. The black ice he fell on was Open and Obvious.

Attorney: But, your Honor, the ice was invisible.

Judge: Yes, but the Defendant has a witness who says there was a small patch of snow three blocks away from the accident scene. Your client should therefore have known that there was a possibility that there could be invisible black ice on that porch.

Attorney: But, Judge, my client is a policeman and that porch was at a house where he was responding to a domestic dispute call. The 911 caller said the home owner had pulled a gun.

Judge: So?

Attorney: So? He had to do his job. If he didn't go onto that porch he would have lost his job, at best, or there could have been lives lost at worst. Whatever the hazard was, it was unavoidable under the circumstances.

Judge: Not so. He could have used the back door.

Attorney: What back door?

Judge: All municipal fire codes require two entrances to a house. I am sure there was a back door. There had to be. And so your client had a choice. He didn't have to use that front door or go on that porch. Haven't you read the Hoffner case, counsel?

Attorney: I did, but I thought I was reading the latest issue of Mad Magazine. So, let's say there was a back door, what proof is there that the back porch had no ice on it?

Judge: What proof do you have that there was? Your client didn't bother to look back there, did he?

Attorney: Judge, when he went up the walk he looked through the front window and saw the owner with a gun in his hand.

Judge: Counsel, we do agree that your client fell, do we not?

Attorney: We do.

Judge: Then, obviously your client was not acting with reasonable care for his own safety at the time of his accident.

Attorney: Not to get personal, judge, but on the way in here this morning, I saw you walk up the Ford Auditorium parking ramp, though there is a "Danger, Don't Walk on Ramp" sign in plain view and it happened to be snowing at the time. How can you rule that my client wasn't acting reasonably?

Judge: Counsel, I did not fall.

Attorney: So?

BAGATELLES I

A few comparatively short, random flashbacks from my shadowy legal career.   A bit different than the flashback I had for 10 years of walking into the classroom building at Wayne State Law School to find all the students taking an exam of which I was apparently unaware.

I.  THE SAVOYARD CLUB

The Savoyard was a private club on the top floor of the Buhl Building.  The building opened in 1925, and the club opened in 1928.

Access was a bit odd.  An elevator took members to the 28th floor. Ahead was a vaulted stairway, with three turns and landings.  My first boss, an old time Irishman who started out around the time Jerome Cavanaugh was Mayor of Detroit, took me to an event there in the early 80s.  Very cool place, oozing old power.  I assumed that I'd be back.  But, with dwindling membership, the club closed in 1994, and as far as I know, Detroit's revitalization has not reached the space.

The Buhl Bar, on the ground floor of the same building, has a page on its website called the Savoyard Club, but it is not an attempt to reopen the space.

I did not know how the Savoyard Club got its name until very recently.  I used to relate the term "Savoyard" to devotees of Gilbert and Sullivan (my nerd background is showing).  But the Savoyard was actually a river in Detroit, and the Buhl Building was built over the stream, which was encased in stone by the City in 1836, having become something of an open sewer.

Who knew?

There is apparently a stained glass window with the crest of the Savoyard Club (which I don't remember seeing on my visit).  A depiction is shown on the match book on the left (I bought the matchbook on eBay), and a graphic is shown at right.

While writing this I now recall that when I started as a clerk for my first boss, he was dealing with the fallout on a case, wherein a deposition had been scheduled on the day of Jerome Cavanagh's funeral.  My boss called the opposition and left a message asking that the deposition be adjourned so he could attend the funeral. He assumed that was all that was necessary, given the event and the "rules of the game" for gentleperson lawyers.  He learned later that the attorney did not adjourn, went forward with the dep and the boss was stuck with the very poor testimony (for him) from that event. 

Not adjourning the dep was a clear violation of the rules of the Guild.  This is not the way (to coin a phrase).

II.  A POST HEARING NIP OF SCOTCH IN HIS HONOR'S CHAMBERS

During my time with the same boss referred to above.  He sent me to cover a hearing before a judge that was one of his friends.  Last hearing of the day, after which the judge called both counsel into his chambers and in the course of discussing something other than the "instant case", he asked us if we wanted a drink?  Yes, certainly.  He pulled a bottle of scotch out his desk drawer and poured a nip for all in chambers.  Just one.

This is wonderful, I thought.  Real 30s-40s era movie stuff (excluding Judge Hardy, of course).  This is why I became a lawyer.  I mean that seriously.  I assumed this would be merely the first of many such in camera proceedings.

Never happened again.

And, that unique event didn't really put me in tight with that judge.  About a year later, he reamed me from the bench for checking in on an 8:30am hearing---at 8:35am.

I am reminded of the not so unique occasions wherein I would be walking to the Ford Auditorium parking structure at 9:45am, having completed my Friday Wayne County Motion call.  I would often greet more than one Circuit judge who was just arriving for his/her 8:30 or 9am Motion call.

So it goes.  It's good to be the King.

 

A REAL "THROWBACK THURSDAY"-AAA's DETROIT COUNSEL 1983

Yesterday, December 30, 2020, while Rik "Mr. Wonderful" Mazzeo of our office was doing a little end of year clutter reduction, he came upon this gem from January, 1983. Given its vintage, the clutter reduction is perhaps not an annual event.

This is a cover letter for pleadings sent to the courtroom of Judge Patrick Duggan of the Wayne County Circuit Court.  Rik worked for AAA at the time and the firm's letterhead listed all the lawyers working for AAA's Detroit house counsel operation.

Before we get to the names on that list, a few more historical tidbits.  Firstly, the pleadings are being sent by mail, rather than through an efile system.  AAA's office was in the First Federal Building, where it occupied 3 floors.  The building, which at that time was home to the Michigan Court of Appeals, still stands.  It is no longer called the First Federal Building.  It has been renamed Woodward Plaza-I think.  The City County Building is now called the Coleman A. Young Municipal Center.

Judge Patrick Duggan (father of Detroit Mayor Mike Duggan), sat on the Wayne County Circuit bench at that time.  He was appointed to the federal bench in 2000.  He passed away earlier this year.  He presided over one of my more colorful cases about this time, which I think I will never choose to include in this chronicle.

In early 1983, I was working at a very small general practice firm in Livonia, and my entry into the PI "game" on the plaintiff's side at Thurswell, Chayet & Weiner was still 3 years down the road.  As to my chronological age, to use a facilitation term, it still had a 2 in front of it.

Also, I blacked out the names of the parties and the case number, as is probably proper.  Though, interestingly, the plaintiff had the same name as a guy I worked with at Hughes & Hatcher, one of two jobs I worked during my last year of law school.  Too back LinkedIn wasn't around then.

A lawyer firm's letterhead is a snapshot of firm membership at any given time, with lawyers who may be at the beginning, middle, or near the end of their careers.  Considering that I wouldn't start doing this work for 3 more years, I was surprised that I had cases with 42 of the 55 lawyers listed.  I find that amazing.  Not LinkedIn amazing, real world amazing.

Nearly 38 years later much has changed at AAA.  Only 2 of the attorneys listed still work for AAA.  One of them, Gene Hom, runs the firm.  I still remember, and sometimes use, Gene's "script"-he had it in his head, of course, for questioning plaintiffs about their injuries.

Several of the lawyers went on to other firms, where some still work.

Many, if not most on the list have retired.  Some have passed, most recently, Richard Haskins.  A couple, including Mr. Haskins, have children working as attorneys at the firm.

The firm is currently named: Hom, Corbett, Kramer, Harding & Dombrowski.  Of those lawyers, only Gene Hom worked for AAA in 1983.  My educated guess is that the others (all fine lawyers with whom I have had cases) were not licensed at that time.

I am going to type out all the names here, so Google will pick them up and hopefully some will see this little piece of history.  

Happy, Better, New Year.

Philip C. Dickinson               James H. Schoolmaster        R. Michael John                  

Roger P. Mourad                    David J. Lanctot                Dennis M. Killeen

Thomas A. Brandt                 Joyce E. Parker                  Karen M. Kulik

Edmund P. Arbour                 Eugene R. Hom                  John E. Sutton

Ronald R. Hanlon                 William. W. Taylor, II          Robert I. Gariepy

David E. Martin                    Clifford J. Sabol                Renee R. McDuffee

Richard Haskins                    Richard E. Eaton              John B. Geen

A. J. Galsterer, Jr.               Jeffrey Doan                     George J. David

Robert C. Marshall               Michael D. Smith               Daniel R. Siefer

Ranald Becker                     Paul R. Fischer                   Lynda D. Barbart

David R. Tuffley                  Clair W. Hoehn                   Philip R. Blanchard

Burton G. McGarry            Christine M. Fischer               James F. Hewson

C. T. McCutcheon, Jr.        A. Randolph Judd                 Rik Mazzeo

Edwin F. Dyer, II                James. M. Jourdan              John H. Cowley, Jr.

Charles A. Pfeffer            Ann Posner Frankel              Edward A. Batchelor,III

David S. Smith                 Timothy E. O'Neill                Patricia DiBaattista Hartig

Kenneth D. Dodson           Harry A. Meyer, II                Jeffrey L. Tolari

Sarah Wildgen Sweet        Clifford W. Schiesel             Michele M. Arene

                                                                                 Louis W. Andraski

LEX FUGIT-JUDGE ROLAND OLZARK, WAYNE COUNTY CIRCUIT COURT, CATHOLIC CENTRAL '45

 

Back at the end of March, 2020 I wrote a post for this blog about Judge Olzark.  The post can be found here.

The article combined two areas of interest for me-the Detroit legal scene, the subject of this blog, and Detroit Catholic school history.

Judge Olzark served as a Wayne County Circuit judge and was a member of 1945 graduating class of Detroit Catholic Central High School (my alma mater).

On the evening of Sunday, December 27, 2020 I saw I had a FB friend request, and a request to join the "I Went to Catholic School in Metro Detroit" FB group I moderate, from an Elena Olzark.  I thought there might be a connection.  Later in the evening I checked my work email, and there was a message from Elena.  She is Judge Olzark's daughter.  She found the March blog post during an internet search.  The judge was not doing well, and she was searching for material in anticipation of writing an obituary.  She had some questions about how I had obtained certain high school photos of young Roland.  I replied that I'd call her on Monday.

Elena lives in San Francisco.  I called her early Monday afternoon Detroit time.  She said she had been able to Facetime her dad earlier that morning and had read him the article.  

We talked about the judge, his life and career and matters Detroit-related for about a half hour.  

She thanked me for my post.  I did relate something to her something I had not included in the post, namely that Judge Olzark and I did have our battles in the courtroom from time to time.  But, I did forget to mention, he also helped me out on one particularly ticklish matter, when a strict reading of the court rules could have allowed him to do otherwise, to my detriment.  I still remember that, from a lot of years ago.

I asked Elena to keep me advised of events, and I saw late this afternoon on Facebook  that Judge Olzark had passed away.  I assumed that happened today, Tuesday the 29th, but looking closer I saw that he died on Monday.  I had another message from Elena today and she thinks he may have passed shortly after her Facetime chat with him.

We have, sadly, lost a member of the "Guild" and a fellow Shamrock.  

The purpose of Lex Fugit is to remember those who do, and have practiced law in Southeast Michigan, and to preserve those memories.

I am glad I was able to write about Judge Olzark before he passed.

We are still aiming towards the November 24, 2021 party at Jacoby's on Brush, circumstances allowing.  Again, no program, no speeches, no awards, no fundraising.  Just fellowship among us legal types.

By the way Elena Olzark is familiar with Jacobys both as a patron and as the place of employment of one of her close friends.  I am glad she knows where it is.  She is invited.

 

ANOTHER GREAT DAY FOR ANGLO-AMERICAN JURISPRUDENCE

 

Special thanks to Andrew Stevens, of Landry, Mazzeo & Dembinski for bringing this story to my attention: to wit,

"Son Wins Lawsuit After Mom Throws Away His Best Porno Mags"

This case comes out of federal court in our great state of Michigan.

Son moves back in with his parents after a divorce.  He brings with him his prized stash of porn (magazines, films and sex toys), apparently accumulated over some time.  I wonder if that collection was an asset awarded to him in the property settlement?

It appears he did mention the collection to his parents, who did not approve. 

When he moved out, several years later, he sent for his property.  The boxes containing the "porn stash" (not to be confused with "pornstache" ), were not included in the items sent.  The parents had destroyed the items, emailing their son and heir that they had done him a favor by getting rid of the stuff.  Opinions apparently differed.

The case filed by the son ended up in Federal Court, so the son had to allege the collection was worth at least $75,000.  

The son did win a summary disposition motion on the liability issue.  Damages to be determined.  More about that later.

"His attorney, Miles Greengard, contends that his client should receive treble damages, which is allowed under his claim of conversion of property."

“We have asked the Court for treble damages, which we believe are warranted given the wanton destruction of the property,” he said.

Attorney Greengard was pleased with the judge’s ruling. The case wasn’t just about a guy and his dirty magazines, he said.

“This was a collection of often irreplaceable items and property,” Greengard said.  

I am sure Mr. Greengard's parents are very proud of his achievement:  "My son, the porn preserver".

I was about to compose what I thought Greengard's humblebrag LinkedIn post about this case might look like.  Then I thought, hey, maybe Greengard posted one himself.  So I checked and while Greengard is on LinkedIn, he has not yet seen fit to broadcast his "win".  A wise move, in my opinion.  That doesn't mean he won't post about the case eventually (maybe after the damages are determined), but I find most LinkedIn dweebs/twits/dorks/wonks can't post their "achievements/wins/non-losses/trivia"  fast enough.

I understand most of us have had cases we don't really want to appear in our published memoirs.  We are not all in a position to pick and chose our cases.  

I remember one particular file that was placed on my desk while I was out doing justice somewhere.  The lawsuit had already been filed.  My hero had sustained an undeniably serious injury.

 

NOVEMBER 24-THE PLAN, THE HOPE

Sadly, there will be a Lex Fugit "Guild" update soon.  We have lost more members.

Therefore, before it gets later than it already is, it is the plan of the Lex Fugiteers to host a party on Wednesday, November 24, 2021 at Jacoby's on Brush St. in Detroit, though we haven't yet put down a deposit.

Opening in 1904, Jacobys will make us all feel young.  A lawyers' bar, a free lunch at Jacoby's was part of a case evaluator's (then called mediator's) pay when the Mediation Tribunal was at the Millender Center.

The night before Thanksgiving is the biggest bar night of the year, with a Wings game and the parade prep going on downtown.

The hope is that we are all vaccinated by then and group events are back by then.  

The hope is that Jacoby's makes it through the next 11 months and remains open.  It must have survived he 1918 Spanish flu pandemic, right?

The plan is that legal types (lawyers, judges, clerks , court reporters etc.) of all ages and vintages will gather to reacquaint,  reconnect, and reminisce (pronounced "re-minisce" for alliterative purposes).

The plan is: no agenda, no sponsors, no program, no speakers, no awards, no faux-wards, no promotions, no fundraising.  

Jacoby's second floor holds 75.  We plan to fill it.

Save the date-we hope.

 

I HEART LINKEDIN (SARCASTIC EMOJI)-EPISODE 1

I have been "on" LinkedIn for some time, even paying for the Premium service for 2 months.  Really, though, I don't have any real idea of how it works or what it is trying to achieve.

Remove the shameless self-congratulation and self promotion and the platform would have about as much content/traffic as MySpace.

And, I have discovered that a visit to a Connection's home page does not show me the content the Connection has posted.  Well, not without more effort than most (including me) are willing to devote to the quest.

So, I have found that those who really want to get noticed on LinkenIn, post a lot.  It puzzles me that these overachievers have the time to publish so much. You'd think they wouldn't have the time, what with all the winning and overachieving they do.  And they post real information you can use in your business, like:

"I discovered this simple trick, and it has changed everything for me.  Here it is:  Eat a green thing daily."  My God, our company needs a new CEO, hire this guy!

Anyway, in another post I have characterized LinkenIn as a "barrage of banal, bloviated bromides".

Setting aside member supplied LinkedIn content for a bit, LinkedIn also has included very targeted ads on page.  Here are some:

Really?  I am 10 years beyond the mandatory retirement age for special agents.

 

Same here.

 

To be fair to LinkedIn on this one, opinions  vary.

 

 

When I was young, making it meant seeing yourself "in Burberry"

GUEST COMMENTER-JUDGE WILLIAM J. GIOVAN*

After my earlier post about my swearing in by Judge William Beer of the Oakland County Circuit Court ,(including some references to Judge Beer's interesting life/lives off the bench) I received this comment from Judge Willam J. Giovan, retired judge of the Wayne County Circuit Court.  More about Judge Giovan can be found at the end of this post.  The comment is published here with his permission.

"One day I was on Belle Isle for some reason and I encountered Judge Beer strolling with a suit and straw hat. I waved at him and he waved back. When I return to my office in CAYMC later I told my secretary quizzically that I had seen Judge Beer on Belle Isle and wondered what he was doing there because he was an Oakland County Circuit judge. She said, "Oh I know that whole family and they live right over there. This did not compute in my mind because I knew that the judge had to live in Oakland County, but  eventually I didn't think any more of it. Sometime later  I found out Why Judge Beer might be strolling around Belle Isle."

*William Giovan is a product of Guardian Angels grade school and DeLaSalle High School.  Though he retired from the Wayne County Circuit Court, he remains active as a visiting judge in many forums, and is a Wayne County Circuit Court Discovery Master.  He is a member of the Barbershop Quartet, the Forum Shoppers, which performs around town.  He gave an interview to Motion Magazine in 2009, full of dry humor.  It can be found here.  He listed his hobbies as:

"Quartet singing, tennis, rowing, fencing. Every other spare moment is spent on Free Cell."  I was a fencer in law school and he once called with some leads on getting back involved.  Still have to follow up on that.

But, importantly in my opinion, he long ago recognized the defects in the Michigan  premises liability law's "Open and Obvious" doctrine with which I heartily agree.

 

MY BRILLIANT CAREER BEGINS- THE JUDGE WILLIAM BEER SWEARING IN

The 40th anniversary of my swearing in as a Michigan attorney occurred on Dec1.  I generally mark neither the date or the running total of years.  I feel like I have been a lawyer forever; yet, I remember my early career-even the law school clerkships, as if it were yesterday.  Some cringe-worthy memories there.

For the past several months Martindale-Hubbell has been nice enough to send (to my spam folder) twice weekly reminders of the anniversary along with offers to buy various testimonials of the event.  "Celebrate Your Achievement With All the Expenses Appertaining Thereto".

So, I have had occasion to look back to the day of my swearing in at the Oakland County  Commissioners' Auditorium at 12:30pm on December 1, 1980, Circuit Judge William Beer administering the oath.  This was the "mass swearing in" event for Oakland County.  It didn't occur to me to ask one of my then boss's pals on the Wayne County Circuit bench to do the kind of special swearing in heavily featured on LinkedIn at present. 

I chose to be sworn in at Oakland County as that event was a week earlier than the Wayne County mass event, and for some reason I can't recall I wanted to get my ticket punched, and into the litigation fray as soon as possible.  Wouldn't that make a great LinkedIn post!

I left the office at about 11:30 and drove to the Courthouse.  No parents, no spouse(at the time) and no other cheering section with me.  No press, no pix.

I checked in, took a seat, rose with all others when directed, raised my right hand and took the oath.  Then we all sat down.

The event was timed to occur during the break between the morning and afternoon court sessions, so all the judges (or most of them anyway) were present.

Judge Beer spoke before administering the oath.  I remembered I was impressed by his words, though I do remember that he also included his views on the matter of the mandatory judicial retirement age.  He was against it.  You see, Judge Beer had been prevented from running in the November, 1980 election due to his age.  At the end of December 1980, he was being forced to give up his seat on the bench.

HYATT LEGAL SERVICES

 

 

As part of the continuing preparation for the first installment of the Lex Fugit Podcast (it is coming, really), I asked all panel members to prepare a short summary of their career "stops".  At our last Zoom session I presented mine as an example.  In putting together my bio, I recalled a period I had largely forgot, my madcap 10 months as a lawyer for Hyatt Legal Services.

Like many young attorneys, I moved around a bit early in my career.  I have worked as an attorney at six firms in my career.  I had started at the fifth  before the ninth anniversary of my swearing in.

Joel Hyatt was the face of this national (I suppose) firm, founded in 1977.  Great pedigree, educated at Dartmouth and Yale Law School.  His father-in-law was then Ohio Senator Howard Metzenbaum.

Hyatt Legal Services was made up of multiple small  store front law offices in metro areas across the nation.  At one time there were 10 offices in southeast Michigan.  See the Detroit TV ad above.  The firm billed itself as a low-cost legal service, making legal services available to millions of "hitherto disenfranchised middle-and lower-class Americans"-from the Wikipedia entry.

An appealing concept.  Interestingly, every service was flat fee, paid in advance.  I won't speak here about attorney motivation under such an arrangement.  

Office hours were 9am-8pm, Mon.-Thurs, 9-6 on Friday, and 9-4 Saturday.  The attorneys, three to each office, were expected to work a "flexible 50" hours per week, which meant at least 2 nights until 8 and 1 1/2 out of 3 Saturdays.  Walk-ins were welcome, and the street-side entrance doors weren't locked.