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)

CATHOLIC CENTRAL MOCK TRIAL-THE NEXT GENERATION

I am coaching the Detroit Catholic Central Mock Trial team this year.  So far, it has been a great experience with some fine young men.

I coached back in 2015 and came across this archived post from an old blog of mine.  Actually, this year's case has much in common with the issues involved in the 2014-2015 matter.  One big difference--for the second year in a row, the entire competition will be virtual.  Considering the numbers of students who descended on Oakland County Circuit Court for the 2015 regional, the decision is understandable.  Too bad that the students will miss the adrenaline rush of open court.

Good luck to all.

I had the pleasure of helping the Catholic Central Mock Trial teams prepare for the state regional competition March 14, 2015 at the Oakland County Circuit Court. This year's case was a fairly complex one involving claims of invasion of privacy and eavesdropping through remote computer monitoring of students by a company running a high school laptop program.

Of the 29 teams participating, only 4 get automatic qualification for States on March 28. Another 4 teams, getting Honorable Mention can qualify as wild cards. With so few moving on, a loss in any of the 3 trials in the Regional virtually guarantees elimination.

All teams were remarkably well prepared, and the competition was pretty intense. I was very impressed by our CC boys, who, in my unbiased opinion, looked like real pros. They, frankly, blew me away. CC owes special thanks to Faculty Advisor Erik Nilsen and Judge Lita M. Popke of the Wayne County Circuit Court who was lead coach for the teams.

One of our teams did get Honorable Mention and we await word about Wild Card qualifications.

Interesting to learn that one of our opponents today was Detroit Communication and Media Arts High School, which is housed in the old St. Mary's of Redford High School building.

Oh, yes, and by the way, CC won the state Hockey title March 14th as well.

LEX FUGIT-TOM AZONI

Tom Azoni, career-long trial attorney, Facebook friend and perhaps most importantly a graduate of Austin Catholic High School (Go, Friars!)  retired as Senior Partner at Secrest Wardle last week.  Among other things, Tom's bio states he was a part of the firm's "Amusement and Leisure" group.  I must find out more about that.

He posted a picture from his retirement lunch on Facebook with this comment: "Thank you all for the kind comments. I loved practicing law, particularly walking the hallways of the courthouses where I heard the best stories, heard and told the tallest tales and got to work with so many fine lawyers. Best to you all."  Jan. 17, 2022.

I never saw a more perfect opening for a story for this site, so I contacted Tom, and he provided me with this gem:

"Ok, here’s my favorite. I was at a settlement conference in Wayne Circuit. The judge sent us out to the hallway to talk about a resolution. When we got there, I said, “So, what’s it going to take? I don’t have much. It’s a lousy case.” The other attorney pulled out a vial with a yellow liquid in it and said, “Before we begin, my client would like you to rub this oil in your hands.” I said, “Has this oil been blessed?” He answered “Yes, it’s been sanctified.” To which I said, “Let me guess. She thinks that if I put the oil on my hands, God will open my wallet. Right?” “Right”. “Ok. Let’s give it a try.” After sanctifying my hands, I had to tell him, “Sorry pal, I still only have $2500”. She took the money. Tom"

Wonderful story.  That sure couldn't happen on Zoom.

I hope Tom will share some more of his stories.  If so, I can post them to my semi-regular Lex Fugit feature in Detroit Lawyer magazine.

Thanks, again Tom.  Enjoy retirement.  You will soon find that you still don't have enough time to get stuff done.

LEX FUGIT-DETROIT MAYOR/RECORDERS COURT JUDGE CHARLES E. BOWLES

I was Christmas shopping this week at the Town Peddler Craft and Antique Mall in Livonia, hoping for inspiration.  I did come across the election ad for Charles Bowles, and was inspired-to write this post.  

No one on my list will be getting this item, to their collective relief, I'm sure.  I was tempted to gift this to myself, but I still have more items from my former office walls than I have space for in my home "legal suite".  And as my wife is a bit of a minimalist with regard to wall hangings (especially when chosen by me), there was little hope that this would be allowed in any other room (bathrooms included) at Chateau Butler.  Sadly, I will not be adding Mayor Bowles to my collection.

But, Charles' colorful career does deserve mention here.

From the Detroit Historical Society article:

Detroit mayor Charles Bowles was born in Yale, Michigan on March 24, 1884. He graduated from what is now known as Ferris State University in 1904, received a law degree from the University of Michigan in 1908, and was admitted to the bar the following year.

In 1925, Bowles ran for mayor of Detroit following the resignation of Frank E. Doremus. While he was eliminated in the primary election, Bowles continued as a write-in candidate and nearly won. After losing the election, he became the judge on the recorder’s court. He was re-elected in this position, but resigned in 1929 to run for mayor once more. Bowles defeated John C. Lodge (of expressway fame, ed.) in the primary election and John W. Smith in the general election and was sworn in as Detroit’s 58th mayor in 1930. The previous decade had seen increased racial tension and the resurfacing of the Ku Klux Klan, who supported Bowles and likely pushed him to victory.

After just six months in office, Bowles was recalled after he fired the police commissioner. Detroit citizens accused him of “tolerating lawlessness.” In the subsequent election, he lost to Frank Murphy. Following his defeat, Bowles returned to the practice of law and made several unsuccessful bids for seats in the state legislature and Congress. He died July 30, 1957 and is buried in Evergreen Cemetery in Detroit.

The Wikipedia entry for Mr. Bowles was attached to the back of the frame, and includes this statement, regarding Bowles first run at the mayor's job, omitted from the Historical Society piece:  "He was openly supported by the Ku Klux Klan."

In fact, Mr. Bowles was featured in this undated article on the Crime Capsule site: "Charles Bowles, Detroit's Worst Mayor Ever".

That title is to be questioned, as in a 2014 article in the Detroit Free Press, "Meet the 5 worst Mayors in Detroit History", Charles is rated a mere 3rd, behind Kwame Kilpatrick and Richard Reading (who earned the unfortunate nickname "Little Dick").  To be fair, Mr. Bowles was merely recalled, while Kwame and Little Dick were sent to prison for mayoral hijinks.

One the credit side, I am a fan of old-time radio, and Charles Bowles did deliver the first political speech on WWJ's airwaves, on July 12, 1930.  Probably not enough to even the scales of his legacy, I suppose.

A LEX FUGIT QUANDARY

            I started the www.LexFugit.com website a couple of years ago, as a place to preserve some of the more interesting tales of practicing law in the Michigan courts.         

            The site’s motto:  Barba Crescit, Caput Nescit-The Beard Grows, but the Head Does Not Grow Wiser (a real Latin adage, by the way), was meant to convey that this was to be a comparatively light-hearted, self-effacing collection of seasoned practitioners’ experiences.

            I never expected there would be an issue getting lawyers to talk about themselves.  Social media is full of smiling lawyers stating that they are “humbled and honored” to be recognized as a super/best/extra most bestest attorneys.  On these same forums, lawyers have no difficulty congratulating themselves on a job well done, if they don’t mind saying so themselves-repeatedly.

            I figured, all I had to do was let attorneys know that I was looking for their stories, and they would send them along.  That hasn’t happened to any satisfying degree.  I am surprised.  I know that lawyers basically get paid for their time, and time taken writing down war stories is time spent not making money.  But, there is voice recognition features on our phones and word processing apps.  This doesn’t take long.

            Here are some of my recent experiences.  One of the great stories on the site:  Sy Orlowski’s Most Impotent Case, was related to me by the venerable Dan Makarski, who asked that I “ghost” the story for him.  The piece will appear in an upcoming issue of Detroit Lawyer Magazine.

            4 or so months ago, I was sitting, remotely, with attorney Gary Krochmal on a case evaluation panel in Wayne County.  As usual, our cases were overwhelmingly No-Fault claims.  During one of the breaks, he related a story of an ICLE seminar he attended in 1972, covering the brand new, Michigan No Fault Act.  The presenters, including Shel Miller, told the audience that they should get into another area of practice as there would be no more auto cases.  I think all would agree, this was a story we’d love to hear.  Over a couple of months, I asked Gary a half dozen times if he’d write the story.  He never outright refused, but after a few weak excuses (“I have to clear this with Shel”), he stopped replying to me. I’ll never get that story.  Maybe I’ll contact Shel.

            So, I have had to pester folks for articles, which I don’t mind doing.  Lawyers generally take the path of least resistance when there is real paying work to be done.  So, it is understandably easy to do nothing when nothing is really required.

            I soldier on.

            It was suggested that the members of the State Bar of Michigan’s Senior Lawyer Section might be a source of stories.  I joined the section and signed up for the listserv.  I intended to post a request for stories to the members of the section.  Thank God I didn’t. The Senior Section listserv was another world.  Whereas I had trouble getting any lawyer to write down his/her “stories”, the members of the listserv could not be stopped.  The same group of 5-6 lawyers posted both long and often.  The number of posts were exponentially higher than the combined posts of all the other SBM sections to which I belonged-like ADR and Negligence.

            I quickly learned that all content is not good content.  The Senior Section listserv, as of April and May of 2021, contained the following discussions:

• Donald Trump had won the Presidential election of 2020, though by what margin of popular and/or Electoral College vote was never so much as suggested;
• George Floyd had actually killed himself, not once, but twice;
• ”As lawyers we know that proof of prior bad acts may be used to prove a current bad act.” Because the Chinese are Stalinists and Stalin was a murderous dictator, this is proof that the Chinese are responsible for the Corona Virus- ironically referred to as a “scamdemic”.

           Daily posts, longer than this article, were the norm among this happy band.

RECENT DETROIT LAWYER ARTICLES-PART 2

Following up on the previous post, the Detroit Bar Association also ran two articles written by me in its most recent August 2021 issue of the Detroit Lawyer.  The on line version of the magazine can be found here, and may be easier to read.

LEX FUGIT-NICK SHAHEEN, pages 14-15.  A story about the late, great Wayne County Circuit Court Assignment Clerk.

 

COVID RETIREE, page 19

RECENT DETROIT LAWYER ARTICLES-PART 1

The Detroit Bar Association has been gracious enough to run several articles/reviews I have written in the latest two issues of its magazine, Detroit Lawyer.  I have included images of the articles and links to the magazine, which might make reading easier.

From the May, 2021 issue, found here:

Book Review, The Witch of Delray, pages 14-15

Lex Fugit?, page 18

THE THRILL OF THE GRASS

 

Shoeless Joe: Getting thrown out of baseball was like having part of me amputated. I've heard that old men wake up and scratch itchy legs that have been dust for over fifty years. That was me. I'd wake up at night with the smell of the ballpark in my nose, the cool of the grass on my feet... The thrill of the grass.

W.P. Kinsella-Shoeless Joe

Tuesday, September 7, 2021.  Historically one of the 2 days each year, the other being the first Monday in January, when the switch gets turned on the business world, the various school districts and the legal system.

Things are a bit different for me this year.  My kids have graduated from school.  But, for nearly 40 years, I would have spent this week at various motion calls, settlement conferences, depositions, case evaluations, facilitations and other such fun and frolic outside my office.  None of that this year. Granted, I did retire from my active litigation practice earlier this year, but that was, in no small part, due to the change in the definition of “active”, in the continuing COVID 19 era.  True, I did a facilitation, and sat as a Case Evaluator last week, but never left the comfort of my home office, a mere five steps from the temptations of my kitchen. Things went well. Not very challenging, not very exciting, but fine.  And, I was able to catch up on both American and European football, from the close-captioned enabled TV in the corner of the room.

Convenient?  You bet.  But, long ago I learned that the legal system of the state of Michigan was neither ordered for, or concerned with the convenience of attorney Michael J. Butler.  For the most part, that has been a good thing. 

To the extent that I have become an effective advocate at all (opinions differ), it has been soley through experience gained during years of adversarial proceedings, conducted in open court/deposition rooms, in person, in the physical presence of judges and other lawyers. 

I entered law school with an intense fear of public speaking.  The phobia sprang, I think, from a rather unfortunate incident in 6^th grade, when during an English class presentation, my partner and I, for reasons still unknown, became convulsed with uncontrollable laughter.  While our classmates were amused, our teacher, one of the less forgiving Sisters of the Order of the Institute of the Blessed Virgin Mary, was not. 

The fear followed me for many of my school years.

Coupled with the entirely normal fear of making a public fool of oneself, I was a perfect candidate for membership in the guild which prided itself on adversarial advocacy.

But, you get thrown in the deep end of the pool, sometimes chained to an anvil, often enough, you learn to think on your feet, react, respond and innovate on the fly.   You prepare better, you think more clearly, you anticipate the arguments of the other side, you look you adversary (sometimes the judge) in the eye.   You gain the skill to, paraphrasing Churchill “tell someone to go to hell in such a way that they look forward to the trip”.  You watch witnesses, and learn what pushes their buttons, and you push them when necessary.

I don’t think you learn this from behind your computer screen, sitting at your kitchen table, the family dog at your feet, dressed in cargo shorts and sandals (you, not the dog), with the judge a tile, no bigger than your own, on the Zoom display.

LUNCH WITH HENRY MAHER, AND NICK SHAHEEN

On Monday, June 21, I met Henry Maher on the patio of the Moose Preserve on Woodward, for a COVID adjourned lunch.

Henry is retired from a brilliant career as a litigator and facilitator.  Henry was one of the first, and all time best, facilitators.  Though he was an insurance defense attorney, I never saw a man who could connect with a plaintiff better than Henry.  He thrived on the in person hearing, which I hope returns to mediation/facilitation practice, now that the light switch on the legal system is getting turned back on.  

Though many lawyers, self included, continue to make facilitation a second career, Henry is now "retired, retired", and intends to stay that way.  Since his second retirement, he has begun reading novels, specializing in non-cozy mysteries.  The count must be near 300 books now, and I am proud to say that I introduced him to Rex Stout's Nero Wolfe back in 2019.  He has read 25 Wolfe's as of June 21, and maintains a tactical reserve of 3 unread Wolfe mysteries against the advent of a national emergency.

There was a lot of litigation experience at that table that afternoon.  And we did talk about many important things-our families, our shared Catholic educational experience, mystery novels, old acquaintances and the upcoming summer of 2021.   At some point we did get around to memories of practicing in Wayne County Circuit Court.  Earlier that morning, I  learned  that Nick Shaheen,  retired Wayne County Circuit Court Assignment Clerk, had died on May 22, 2021.  Nick was 96.  He served as Wayne County Circuit Court Assignment Clerk from 1969-1989.  In 1994 he and his wife moved permanently to Orlando, Florida.

 Nick retired before Wayne Circuit moved to judges having individual dockets.  Really seems odd to recall the  way the court was "organized" back when I started practicing.  Firstly, Recorders' Court was restricted to hearing criminal matters originating in the City of Detroit.  All other Wayne County felonies were heard by Wayne County Circuit judges in their courtrooms in the City County Building (now the Coleman A. Young Municipal Center), the Wayne County Building (then referred to as the Old County Building) and the Lafayette Building (forever demolished as of 2009).  All Wayne Circuit judges heard civil, criminal and family law cases.  

When a civil case was filed, a judge was assigned.  This judge would have the case through mediation (now called case evaluation).  There were no discovery tracks--all civil cases were given discovery for 26 months!! You read that correctly.  Admittedly, the number 26 seemed a bit more shocking before March of 2020. Before the COVID shutdown, certain Circuit judges announced the policy that all auto-related cases were to be resolved (which would include trial if necessary) within 12 months from the date of filing.

Cases would be set for mediation after the 26 months, but how long after I don't remember.  Some time after Mediation (again I don't remember how long after), attorneys would get a Settlement Conference notice.  The Settlement Conference would be set before a randomly selected judge, not the judge assigned when the case was filed.

Adjournment requests, of any type, were made exclusively by motion filed with the Chief Judge.  A forlorn hope, generally.

At the Settlement Conference the system got really interesting.  If you didn't resolve your case with the settlement judge (who had no particular motivation to help you settle), you could go to trial that very day.

Enter Nick Shaheen and the 17th floor Assignment Clerk's office.  

GEORGE S. KAUFMAN (1889-1961) ON LEGAL BILLING

 

 

George S. Kaufman should be familiar to most, though he died 60 years ago.

He was a playwright, theatrical director, producer, humorist and drama critic.  He won 2 Pulitzer prizes:  for the musical Of Thee I Sing and the comedy You Can't Take It With You.  He wrote several musicals for the Marx Brother, The Cocoanuts, and Animal Crackers. (very important), and was a member of the Algonquin Round Table (also very important).

He was a great wit, while trying to locate one of my favorite Kaufman quotes, about getting something for nothing (a great quote for another time), I came across the gem, shown above, about lawyers.  The best bit is the last:

"You heard about the man who go a bill from his lawyer which said, 'For crossing the street to speak to you and discovering it was not you, twelve dollars.'"

I don't know the date of this quote, but Kaufman was writing Broadway plays a hundred years ago, and maybe 12 bucks was a big deal back then.

Before researching the prevailing hourly rates for New York lawyers in 1921, I got to thinking.  I was an insurance defense attorney for 6 years, and there were times when twelve dollars seemed a big deal to my carrier's billing review company.

As an example, let me take a situation like that described in Kaufman's quote, but substitute "opposing counsel" for client and assume that there was no mistaken identity, and that we actually met, on the streets of Downtown Detroit (remember when?) and discussed a current case.

Immediately upon my return to the office (possibly), I would have entered my time on our billing program. For simplicity's sake, I'll omit the tags and activity codes, and would bill .3 hours, 18 minutes, with the following description:

"Met with plaintiff's counsel in Detroit, and discussed the status of various outstanding discovery requests.  Counsel indicated that the requested documents, and answers had been received in rough form from his client, and he had to review them and "polish them up".  He would get them to me hopefully within 10 days.  Also discussed scheduling the depositions of his people.  One was a former employee over whom he had no control, but he would like to try to arrange the deposition informally, without needing a subpoena.  He'd let me know, again in 10 days."

In the fullness of time that entry, along with others was submitted to the client through its bill review company.  Let's make up a name for the company, totally at random.  Let's call it "NadirEdge-EvilHex".  I am sure we would have called it "Evil" for short.

WORDS OF WISDOM FROM MICHIGAN'S MASTER/SENIOR LAWYERS

 

Back in 2017 the State Bar of Michigan's Master Lawyers Section (for some reason now "rebranded" as the Senior Lawyers Section), published a 23 page book entitled "Words of Wisdom".  A copy can be found here.

It is certainly different than the LinkedIn equivalent of professional advice.  First and foremost, none of the submissions are attributed to anyone.  Certainly a violation of LinkedIn Rule No. 1--take credit for everything.  Come to think of it, the roughly 125 tips contained in the book would provide the young "Advice For Young Associates" twit on LinkedIn with material to ascribe to appropriate for and attribute to  himself, for a week.

Some of the advice may be criticized as trite bromides, scarcely necessary to repeat.  But, based on my observation of the current state of the practice, those bromides, though often prescribed, have not been taken in therapeutic doses by the litigating community.  For instance:

"The basics still remain the same: Be prepared, aware, ethical, and energetic, and you can succeed even though the profession has changed."

Adequate case preparation is still a challenge, apparently.  And, civility and ethics may be difficult to maintain where the litigation arena is not the courtroom but the computer screen in a home office, basement, kitchen or bedroom.  And, to be fair, it is hard to remember that you follow in the footsteps of Brandeis, Frankfurter and Bader Ginsburg, when you  practice with your own footsteps encased in bunny slippers, worn under pajama bottoms.

I did not contribute to the book.  So, let me take care of that now:

"Eat a green thing daily". (However, avoid green meat, cheese or bread).

Ironically, the  value of Words of Wisdom is in stark contrast to the submissions to the current Senior Lawyers Section Listserv.  More about that in another post.