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 mjbutler722@gmail.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  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 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.

LINKEDIN-CAREFULLY CURATED CAREER COUNSELING

 

I am not a fan of LinkedIn. I find the humblebrag that dominates the platform comical/nauseating.  I do have a LinkedIn page, but I keep it almost entirely for its entertainment value.  It is often good for a laugh.  My favorite part of LinkedIn is not a part of LinkedIn at all.  It is the Twitter account, "Crap on LinkedIn".

Way back when I must have clicked some box indicating I was open to job offers.  So, I still get an email each day with job opportunities.  Most listings come from employment agencies trying to build pools of candidates they can refer to clients who will pay them a commission.  But LinkedIn does pride itself on finding opportunities that match your expressed preferences and qualifications.

So, I have received emails alerting me to employment opportunities with the FBI, at a time when I was several years beyond the mandatory retirement age for field agents.

One of my favorites is the ad above, under the heading of "New Jobs in Livonia" (Michigan).  This alerts me to an opening for a California Mineral Rights Attorney! What an opportunity.  As LinkedIn often adds, "Be one of the first to apply".

I am not licensed in California, and I am not a mineral rights attorney by training or experience.  In fact, I wouldn't recognize a mineral right if I fell down an open mine shaft.

How does such a job ad make its way to a superannuated lawyer from Michigan? At one time or another in my legal career, maybe I said that I found myself between a rock and a hard place?  They probably took my interest in the position for granite.

I looked up other geology puns to add here, but they were uniformly awful.  For instance, "If I was not interested in the job, it was my fault".

So, instead of puns, I looked my LinkedIn page, and clicked the jobs icon for job suggestions meeting my profile.  Well the FBI is still hiring, and when I clicked on the search button for attorney jobs in Livonia, I got this:

To be fair, I do love the Detroit Club.  Reminds me of the good old days when the Mediation Tribunal, located across the street, held hearings in person.

 

THE POWER OF A LAWYER'S (HIGH SCHOOL?) ALMA MATER

    The drive to get into the perceived best colleges and graduate programs has never been greater than it is today.  Students and their families begin building the "portfolio" early.  When our youngest daughter was in 4th grade, she attended the birthday party of a classmate, at which time the child's father announced that his daughter would become a doctor and would earn 3 board certifications.  The latest information I have for that young lady was when she was about 6 years out of high school, at which time she was trying to make her way as a freelance interpretive dancer.  Things do not always succeed as planned.

    While the competition for places in top tier programs remains intense, getting into law school is not as hard as it used to be.  When my now 20-something nephew applied, his mother/my sister, would text me weekly with news of the latest scholarship offers showered upon her son.  Many came from out of state schools to which he had not formally applied.  I responded to her, congratulating him and asked what undergrad grade point average had resulted in such offers.  "3.2".  After I replied that my undergrad average had been 3.7 and no one had offered me a dime, the texts stopped.  

    As the Mock Trial coach at my old high school, Detroit Catholic Central, I see students, including "my boys", working hard, preparing for the next step in their student careers.  And I try to help them when I can.  I do tell them that I see Mock Trial not as a pre-law school activity, but as an opportunity to learn real analytical and "think on your feet" skills which they can carry into any field after the student part of their careers are over.

    There is one thing I haven't told them.  And that is, in my professional career, the most influential educational entry on my CV has been the name of my high school.

I WORKED WITH SOME VERY "INTERESTING" PLAINTIFF PI FIRMS. IF ONLY............

THINK OF THE BILLBOARDS!

 

THINK OF THE TRIALS! (SEE END OF POST)

 

CIVILITY IS EVERYTHING IN THE COURTROOM

 

BOTTOM ROW, RIGHT

I always wanted to do that.

 

 

VACATION COMMUNICATION

Though I am retired from full time litigation practice, as the summer of 2022 enters the final week before Labor Day, I was caused to think of summer vacations past.

It started during a recent extended telephone mediation. Things had stalled. To move things along, I sent out a 2-day notice for a general conference call.  The afternoon before the conference I received an email from a previously non-communicative lawyer, stating he was on a family vacation "with little or no workable cell service or internet. I get internet in the am when we drive into town for coffee, etc."   Thus, he had created plausible deniability if he didn't respond to the conference call (he didn't), and if he didn't respond to the continuing, and reasonable requests for documents supporting his case.  Bad reception.  We had been warned.

Pure BS, of course. His firm is probably the most tech savvy in the state.  I wouldn't be surprised if they had a dedicated satellite link.  I'm sure the firm provided him with any number of methods to connect.  This isn't 1995.  And I can't think of any family whose children would survive being deprived of social media for 5 minutes.

On another level, I can sympathize.  Assuming the lawyer was on vacation with the family, he owes it to them (and himself) to turn off work to the extent he can.  Despite what we say on LinkedIn, we should be working to live, and not living to work.

Firms, clients, and courts expect attorneys to be available 24/7.  We were probably at that point before the COVID/Zoom era.  Now, you can go from the shower to a court appearance in 5 minutes, from your home office, basement, bedroom or kitchen.  Phones and tablets turn attorneys into the obstetricians of the legal system-always on call.  It is hard to relax-ever.

I was not raised during the Depression, but I feel like it when I recall communication, or the lack thereof, while on vacation during my legal career.  

Shortly after we were married, my wife and I went to the same Lake Huron resort (I am sure the term was used ironically) cottages (the size of an average suburban family room) my family went to during my childhood.  No TV, no phone, no AC, a barely working stove, and water of the same consistency, if not quite the same color and clarity of a pint of Guinness.  The cell phone, the internet and the email had not been invented.  No way to call the office and no way for the office to contact me.  Well, there was one way.

The cottage was on the Lake Huron shore, just east of US23.  On the west side of US23 was the Sunset Motel, shown below, in a photo that could have been taken at any time from the date of its construction up to the present.

What is not shown in the photo, is the south end of the parking lot, with accompanying utility pole.  Attached to that pole was a pay phone.  So, what I did, was walk to US23, cross the northbound lanes, the grass median, then the southbound lanes and try to call my office, collect, from that utility pole pay phone. It was tough trying to carry on a conversation with semis whizzing by.  I felt like Eddie Albert in Green Acres.

Lawyer Cartoon July 29, 2022

Oddly enough, this was not one of those cartoons, where you can insert your own name, profession etc.