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?

 

I have worked both sides of the personal injury field, and my practice now includes an increasing amount of facilitation/mediation. My CV can be found here, and mediation "Rules of Engagement" 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)

PENDING AWARD NOMINATION FOR WWW.LEXFUGIT.COM

 

 

 

Though we  have yet to hear from the International Blog Consortium at the Hague,  hopes are high that for a very reasonable sum, this award may soon adorn the home page of LexFugit.com.  

A fitting addition to my panoply of personal honors, which appear on my business email signature block.  See below:

 

 

 

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 appeal.  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

"PEER" RECGOGNITION FOR A PRICE-CURRENT STATUS

 

At the current moment, I have been nominated/accepted for membership by the following peer recognition groups (yearly cost of membership attached)

Lawyers of Distinction-$775

Premier Lawyers of America-$695

American Institute of Personal Injury Attorneys-10 Best Attorneys in Michigan-$295

And, I have just been informed that one of the lawyers in my office has, as a joke I presume, nominated me as a Super Lawyer for the next years Honors.

Don't know the cost of that one yet, but I assume that the selection process for someone of my vintage is something like:

"You are qualified-I think" 

SUED BY THE BOSS'S DAUGHTER

 

*Editor's note.  The story is not as lurid as the title might indicate. Notwithstanding, some names have been changed or withheld.  I have always felt that discretion is the better part of my continued licensure.

I worked as a plaintiff's personal injury attorney for many years, most of them with the firm of Bernstein & Bernstein (not Sam) in Southfield.

In 2015, for reasons that are available upon request, I switched over to the defense side of the aisle.  I am not the first to do, certainly.  Lawyers switch sides all the time.  I have had many defense cases with plaintiff lawyers, who had previously represented defendants I sued when I was a plaintiff lawyer.  This is a very incestuous business.

About a year into my defense career, I got a new case in.  Interesting, as the case was a combination auto negligence claim against my clients and a direct action against my client's auto insurer.  

Oddly enough, the claim was for a single item of collision damage in the amount of $1492.40.  Because the car damage was to a parked car, one of the more arcane provisions of the Michigan No-Fault law applied, and the carrier of the vehicle that struck the parked car was responsible for its collision damage.  My client's carrier had moved most of it's Michigan claim's handling out of state---way out of state.  The adjuster, new to Michigan law, thought that collision damage was paid by the parked car owner's insurance company, so he denied the claim.

So, the enterprising plaintiff lawyer's office sued my clients, the driver and owner of the striking vehicle, on a negligence theory, the Mini Tort as it was called. And they also sued my client's insurance carrier alleging a company-wide conspiracy to deny legitimate claims.

The plaintiff was represented by the Law Offices of Ronald Steinberg and Associates.  The "and Associates" was his daughter Kimberly Steinberg Goodman.  I "knew" Ron as someone I had seen around the courts for years, but as we were both plaintiff attorneys for most of those years, I never had a case with him.  

Most of my initial contact on the case was with Kim Steinberg Goodman.

Because there were 2 defendants, my clients and the carrier, the carrier hired 2 attorneys.  The carrier was represented by a large firm that grew to its impressive size by doing a lot the carrier's work. 

The carrier was wrong in denying the claim, but the denial was understandable in view of the fact that the parked vehicle collision damage provisions of the No-Fault Act were contrary (without apparent reason) from the way all other collision claims were handled under the Act.

I'M A SUPER LAWYER-PLEASE,PLEASE,PLEASE,PLEASE,PLEASE LIKE ME

I am exercising discretion on this one.  I know and like the attorney involved.  He is a good lawyer.  But.....

We have a bookkeeper who comes in our office one day a week.

Her husband was involved in an auto accident.  His injuries were serious.  We could not represent him (to be honest, we weren't asked), because the insurance carrier for the negligent driver was a company that we did business with.  So, we rationalized that we couldn't do what we weren't asked to do anyway.  

In any case, the husband had a relative who was an attorney out of state.  The relative referred him to a very highly regarded attorney at a very high profile plaintiff firm.  Good attorneys, good people.  

That said, it wasn't a very difficult case.  The man's PIP carrier had never even had him  submit to an IME, much less cut off his benefits.  So, no PIP lawsuit.

There was no IME in the auto neg case.  Plaintiff's dep was taken.  The big time lawyer assigned that to one of the "lower downs" at the firm.  No other deps taken--clear liability.

Biggish policy, case was settled at through case evaluation, where the panel gave the carrier a small discount on the policy limit, as is common in cases like this.

In other words, low impact litigation.  Very little interaction between client and the big time lawyer.

To be honest, the bookkeeper said she learned more about the case by accessing the court docket on line, and asking questions of the folks in our office every Thursday.

So, you didn't need to be Clarence Darrow to get the same result.

The bookkeeper and her husband were a bit surprised, when after the settlement, the "super lawyer" texted the husband on 5 separate occasions (at last count) asking him to write an on-line review of his services.  

That's nice.  There is no compliment like a 5-time solicited compliment.

In the end, I suggested they find out the name of the lawyer who showed up at the dep and write an on-line review of her talents.

No wonder the opportunities for attorneys to buy and pay for recognition abound.

THE REFRIGERATOR MAGNET HOMAGE

While every attorney with a pulse attempts to set him/herself up as a mediator ("Available 24/7 for you mediation needs!"), I remember a time when mediation/facilitation was the exception rather than the rule.

One of the first to mediate full time was Judge Kaye Tertzag, who retired from the Wayne County Circuit Court Bench in 2004.   He was a terrific mediator-intelligent, empathetic, engaging.  And he was a better man.

I have tried to adopt his 3 Ps-Be Prompt, Be Prepared, Be Polite as my personal, professional standards.

At the conclusion of a Tertzag mediation, the participants did not get a business card, per se.  They received a received a refrigerator magnet, shown below.

Judge Tertzag died in 2009, and I still have the magnet on my refrigerator.  That is a tribute to the judge, not to the longevity of our Kitchen Aid side by side.

The judge's voicemail message is no longer associated with that cell number (I checked recently), and Mrs. Tertzag no longer lives in Brownstown.  

I keep the magnet in plain view as a reminder of the man, his principles and his body of work.

So, as my mediation practice has increased, I thought I might copy Kaye Tertzag's promotional item, both as the good idea it is and an "homage" to the master.

This is my magnet, specifically designed to look as close as the Tertzag magnet as possible.

To further copy Judge Tertzag's  valediction:  Be Well.

 

 

LAWYER CARTOON OF THE WEEK 10

INSURANCE FRAUD AND THE GREAT BLACKOUT OF 2003

Despite recent history, insurance fraud is nothing new.

My favorite case from the mid-2000s involved a doctor who had treated one of my trip and fall clients during the early years of the new Millennium.

In 2007 this doctor was indicted on 80 counts of insurance fraud for allegedly submitting more than 80,000 false claims to Blue Cross Blue Shield of Michigan, totaling more than $2.5 million. The doctor told subscribers that he would split the money with them if they would allow him to falsely bill in their name. 

In my case, my client was indeed a BCBS subscriber, but Blue Cross had no record of any claims submitted by the doctor for my client's accident related treatment.  Nonetheless, Doc told my lady that she owed him "around' $5000.  However, I could never get a statement from him.  Eventually, I wrote to him telling him that, given his failure to either bill the carrier or supply me with a statement, he should not look to my client for payment for any treatment provided.

I heard nothing more about this doctor until reading about his indictment and trial.  He was found guilty on all counts.

In reading about the case, I read that the doctor had charged for 3 EMGs performed on August 15, 2003.  That was interesting given the fact that on that day Midwestern states, including Michigan were in the midst of the greatest power blackout in my memory.  I remember vividly the problems that blackout caused my wife and eye, stuck 90 miles from home, with only about 40 miles worth of gas.

I am persuaded that the doctor did not have a generator that allowed him to power his own EMG equipment.  His office was a storefront in Detroit near one of the old line hospitals.  It looked like it was built about the time the Dr. Kildare movies were filmed in the early 1940s and not updated since.

Doc was sentenced to 16 years in prison.  Oddly enough the internet still lists his office address and the Google pop up listed his office as "open" when I looked him up one afternoon last week.  

Sometimes I think the internet may not be infallible.  

Dr. Kildare