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)

THE DEP NOT TAKEN

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

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

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

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

So far, not bad.  

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

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

APHORISMS FOR AGING ATTORNEYS-5

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

LAWYER BEHAVING BADLY

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

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

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

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

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

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

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

The hearing was set for a Friday afternoon in June.

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

APHORISMS FOR AGING ATTORNEYS-4

 

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

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

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

THE SINGULAR THEY

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

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

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

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

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

MICHIGAN LEGAL LANDMARKS I-THE GILDED SPINE OF JUSTICE

 

Southeast Michigan is dotted with many landmarks, evidencing the rich legal heritage of this area.  Here at www.lexfugit.com we will try to visit and catalog those landmarks-shrines if you will.

Today's inaugural installment is the Gilded Spine of Justice located in the lobby of Judge Jim Rashid's mediation office on 8 Mile in Livonia.

A holdover from the chiropractor's office that formerly occupied that space, it has successfully withstood any effort to remove, maintain or update it.

Judge Rashid does not know this, until now, but I always touch L1, L2 and L4 (it must be in that order) as I enter his building, for good luck in the upcoming mediation.

 

A close up showing the lucky spot.  That is some serious disc degeneration/desiccation/dehydration.

Suggestions for future landmarks can be addressed to me at:  mbutler@lmdlaw.com

 

WHY I DON'T CONSIDER RETIREMENT-FIRST OF A SERIES?

Whenever 2 or more attorneys of a certain vintage get together, inevitably the question "How long are you going to keep doing this?" comes up.

I have not considered retiring.  I don't have a ready answer when people ask "Why not?".  I still like what I do, perhaps now more than any time in the last 20 years.  In addition, I think that I am good at what I do (opinions differ on that issue, I understand).

But last Saturday, October 27, I saw a great reason why I haven't considered retirement.

My son was in town from St. Louis, for a family funeral.  He loves Tim Hortons, as all right thinking people do.  There are no TH shops close to him, so we had to make a stop before going to the airport.

Customer traffic at the TH shop at 5 Mile and Newburgh was the busiest I had ever seen and we had a long wait inside.  After about 15 minutes, out of the corner of my eye, I noted a guy clearly very unhappy with the TH personnel.  He had been standing at  at the counter for some time, even before we placed our order, doing a slow burn and then complaining to any and all behind the counter, in this fashion:

"I had ordered a small black coffee in a mug, and not in a cup.  You gave it to me in a cup.  I specifically ordered it in a mug and not in a cup."

His hot food order, on the counter was rapidly growing cold during this monolog.  The staff apologized, but I think they couldn't find a mug-or more likely didn't appreciate the magnitude of the  problem of giving someone a cup of coffee in a cup.

I have been to TH many times, and I don't remember ever seeing a mug other than those sold with holiday gift sets.  I have a few.

I finally looked at this gentleman.  It turned out that I had seen him before--many times before.  Over the course of many years I had seen him in the halls of the City County Building.  He was one of those guys you see a lot, but don't know by name, as you have never had a case with him.   We did not do the same kind of work.  If I had to guess, I would have pegged him as a solo practitioner from Downriver.  Unfortunately, it appears that my fair city of Livonia can claim him.

I had not seen this man in many years, and he clearly had aged in the interim.  I, of course, continue to maintain my boyish good looks.  I assume the man had retired.   And this is how he is spending his Golden Years-giving crap to minimum wage workers, doing God's work, about the defects of the delivery medium for his $1.48 small black coffee.  

As we left I informed my son of this guy's former calling.  I then told him that if I ever got to a point where that kind of thing mattered to me at all, setting aside mattering enough to get torqued off about, that I would furnish him with the gun and ammunition and he should put his old man out of his misery.  For my good and the good of society as a whole.

Now, while I am not considering retirement, I do not intend to practice long enough to join the Sam Posner Bar Association.  The Posner, Posner and Posner website states that Sam tried cases right up to the time of his death in 2006 at the age of 95.  To qualify for membership, you need to be at least 85 and try 5 cases to a jury each calendar year.

I remember Sam.  Don't think I ever saw him smile.   

I hope I smile a lot in the coming years, at work and at play, right up to the time that my TH coffee has be delivered to me by IV.

 

WORKING WITH MR. WONDERFUL

I have previously related the circumstances of my first meeting with attorney Rik Mazzeo.  Click here.  

We have moved beyond that shaky start, and since July of 2015, it has been my pleasure and honor to work Mr. Wonderful.

That is how he answers his phone, and variations appear on his shirt cuffs and his license plate.

Rik does say that if your are going to call yourself Mr. Wonderful, you better be able to back it up.

You can't be in court saying:  "Mr. Wonderful appearing for________, and I'm sorry we didn't(file a witness list, answer discovery, show up for a Settlement Conference, etc)".

Taking that name unto yourself is a great motivator to keep your game up.

One day, I am in Washtenaw County Circuit Court arguing a Summary Disposition motion on a case that would melt the stoniest of hearts (2 insurance companies suing each other, arguing that the other should have paid).  As I got up to deliver my argument for denial of the motion, Judge Connors says straight off:

"You're not Mr. Wonderful.  Who are you?"

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

I won the motion and the opposition had the temerity to try to take the ruling up for an interlocutory review.  So, one day a few weeks later, Nancy Dembinski, our resident Appeals guru, walks in to my office with a transcript in her hand.  "Butler, what is this?"  Yes, my introduction is now part of the annals of the Michigan Court of Appeals.  That's glory for you.

As to the case, it went to a jury trial.  We were the plaintiff in that case.  And though modesty probably wouldn't prevent Rik from telling you, but Mr. Wonderful "Rang the Bell".

 

LEX FUGIT-DISCRETION REQUIRED

"You said a mouthful, Toots!"

Since starting a site that gathers war stories from "seasoned" attorney, I have had to consider when discretion would dictate that names of those involved be withheld.

This is such a case.

While attending the Bench and Bar presentation last week in Wayne County, I saw a lawyer acquaintance of mine who I hadn't seen in over 5 years.  He is "semi"-retired.

He looked good, as heath issues had required that he change his diet and he lost a fair amount of weight.  When folks get to a certain age, even if the weight loss improves appearance, you try to find out if the weight loss was intentional.

Anyway, later in the day, I recalled a case, from years back, when this fellow and I were at a Settlement Conference in Wayne County.  I was a plaintiff lawyer and he a defense lawyer.

This case was so long ago, that an afternoon Settlement Conference was a common thing.  Also, this was so far back, that the judge actually tried to settle the case.  Routine referral to facilitation was still in the future.

So, counsel are back in the judge's chambers, shooting the breeze preliminarily, as was, and still is common practice.   I am still not sure how this came up, but there was a discussion about some other judges in other circuits.

Now, our Settlement Conference judge was an African-American woman, and a judge who I really liked.  In the discussion, about the other judges, the defense lawyer mentions that he has had bad experiences with a judge, from another circuit, also an African American woman.

The defense attorney says, "I think she is prejudiced against white people."  I am sure the reader understands that both lawyers at this Settlement Conference were white males.

That stopped conversation in its tracks, all right.

While I casually tried to move my chair out of range of the anticipated lightning strike, our Wayne County judge, after a 5 count of silence, moved on as if nothing had been said.  Very classy move.

I was actually FB friends with that attorney for a while.  One day, I noticed that his profile showed up in the "People You May Know" box, that shows up in your Facebook feed.  This is how I learned that I had been unfriended by the guy.  Small loss.

"Judgment is not upon all occasions required, but discretion always is".-Lord Chesterfield

 

LAWYER CARTOON OF THE WEEK-11