LEX FUGIT

THROWBACK FRIDAY-CIVILITY IN POLITICS

From my old blog AttorneyButler.net, from July 4, 2011

I have always held civility to be one of the cornerstones of the practice of law.  I thought civility was something of a lost art back in 2011 when I first wrote this post.  Compared to the current state of things, back then everyone was dancing the minuet:

CIVILITY IN POLITICS--A LOST ART?

  Many people, including me, bemoan the lack of civility in political discourse.  We seem to think that in former times they did things differently.  We believe, at least I did, that our Founding Fathers were more polite than we are now (and had this government thing all figured out besides).

Well, on July 2, I bought a little book called "Distory", by Robert Schnakenberg.  It is subtitled, "A Treasury of Historical Insults".  On this Independence Day, it might be interesting to read what some of our beloved Founding Fathers said about each other:

"That George Washington was not a scholar is certain. That he is too illiterate, unlearned, unread for his station is equally beyond dispute"--John Adams on George Washington.

"Insane."--James Monroe on George Washington.

"Always an honest man, often a great one, but sometimes absolutely mad."--Benjamin Franklin on John Adams.

"I should be deficient in candor were I to conceal the conviction, that he does not possess the talents adapted to the administration of government, and that there are great and intrinsic defects in his character which unfit him for the office of Chief Magistrate."--Alexander Hamilton on John Adams.

"Petty, mean, egotistic, erratic, eccentric, jealous natured, and hot tempered."--Alexander Hamilton again on John Adams again.

"Instead of being the ardent pursuer of science some think him, he is indolent and his soul is poisoned with ambition."--John Adams on Thomas Jefferson.

"A slur upon the moral government of the world."--John Quincy Adams on Thomas Jefferson.

"I do not like his looks any better than I like his administration."--Daniel Webster on James Madison.

"A mere tool in the hands of the French government."--George Washington on James Monroe.

"One of the most improper and incompetent that could be selected (for President).  Naturally dull and stupid;extremely illiterate; indecisive to a degree that would be incredible to one who did not know him...he has no opinion on any subject and will always be under the government of the worst men."--Aaron Burr on James Monroe.

"That bastard brat of a Scottish peddler."-John Adams on Alexander Hamilton.

"A man devoid of every principle."--Adams on Hamilton again.

"His inveteracy is profound, and his mind of that gloomy malignity which will never let him forego the opportunity of satiating it on a victim."--Thomas Jefferson on John Marshall, first Chief Justice of the Supreme Court.

"He is our wise prophet of chicanery, the great buffoon."--William Carlos Williams, US poet on Benjamin Franklin.

Well....I think I'll go listen to Rush Limbaugh for a little bit of taste and decorum.Happy 4th everyone.

LAWYER CARTOON OF THE WEEK-5

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 [email protected].  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)

THROWBACK SUNDAY-APRIL 28, 2015 CRY HAVOC

Lex Fugit is not my first blog.  For several years I ran a blog containing my observations on various areas of personal and professional life.  While I have long ago given up the blogs URL, I note that my Typepad account archived all the posts in a rather low tech format.

 A few of those posts may be relevant to this site.  

This post comes from April 28, 2015, less than 2 months before I left the plaintiff's side of PI for the defense side, and ADR.

Written after  a visit to the Secrest Wardle firm in Troy, here it is:

CRY HAVOC....

--AND LET SLIP THE CHEAP LITTLE  BLACK TIN SILHOUETTE DOG OF WAR.

PICTURE TAKEN AT THE LAW OFFICES OF HIGH PROFILE DEFENSE FIRM SECREST WARDLE.

GOOD FIRM, GOOD ATTORNEYS, BUT THE FIEGER LAW LION IT AIN'T.

After the original publication, I was informed that the dog was placed to scare off geese....and other vermin.  Notwithstanding, it did not stop me.

THEY DON'T WRITE MEDIATION (CASE EVALUATION) SUMMARIES LIKE THAT ANY MORE

It is my honor to work with Rik "Mr. Wonderful" Mazzeo, and he recently uncovered this opus from the archives.

The litigants' names, the case number and the identity of the plaintiff's lawyer have been redacted, but I thought it was appropriate to leave the name of the trial judge, the immortal Kaye Tertzag, visible

This was a premises liability case brought against our homeowner client, whose guest had fled from a bee on the homeowner's premises, had fallen and sustained a wrist injury.

While Rik's mediation (the former name of the case evaluation process) summary is both inventive and eloquent, one wishes one could see how the plaintiff pitched whatever liability theory he thought applied.

According to Mr. Wonderful:

"I think that I shall never see, a thing as lovely as a bee.

Buzzing about on August 25th, it gave my heart a delightful lift.

Alas, that ever cute bumblebee, began to fly directly at me.

I turned, I ran, I spun about; I stumbled, I tripped, I stuck my arm out.

A distal fracture I did suffer; but who to blame, there must be another.

The bees, the grass, the ground down under; someone else must pay for my blunder.

But oh, I find the law does say, there was no breach of duty upon that August day.

Fortunately my wrist did heal;  I returned to work and from these Defendants I cannot steal."

Somewhere, Joyce Kilmer is looking down...and sobbing.

WAYNE MILLER'S FIRST JURY TRIAL

Way back when I was fairly new in the PI game, I worked for a fairly large (by the standards of the day) plaintiff's firm in Southfield.  A year or so into my tenure there, I received a jury summons for Wayne County Circuit Court.  I was called to the courtroom of Judge James Mies, one of my favorite judges of all time.  He was comparatively new to the Circuit bench.  I had appeared before him when I was starting out, doing general practice in Livonia, where he was a District Court judge.

On the day of jury selection, I was lucky enough to be the last person called into the box (sarcasm emoji).  The case involved a claim for No-Fault benefits.  In those days, PIP claims did not dominate the Circuit Court dockets like they do at present.

The Defendant was AAA, known then as the DAIIE (Detroit Automobile Inter-Insurance Exchange) rather than its present formal company name, ACIA (Auto Club Insurance Association).  I do not recall the Plaintiff's name.

AAA was represented by Ed Dyer. I did not know Ed well at the time.   A good man, Ed soldiered on despite many health issues in later years.  He did not recognize me as I took my seat in the jury box.

The plaintiff was represented by two fresh faced, eager young men, neither of whom I recognized.  One of them would later become Wayne Miller.

Judge Mies conducted the initial voir dire.  As the defendant was AAA, he asked if any of us were insured with the company.  At that time, I was.  I raised my hand, as did a few others in the box.  The next question was "Have you ever had any problems with a claim with AAA?"  To which I answered, "Not my own".  Judge Mies smiled, and I was excused immediately thereafter, without any party exercising a challenge.

Years later, when I got to know Wayne a lot better, he told me that case was his first jury trial.  The plaintiff lost.

Wayne is a very smart lawyer and a great advocate and negotiator.  He is also a well regarded mediator.  I have never employed him in that role, however, and never will.  This is because, fairly early on, Wayne informed me that Shemp Howard was his favorite Stooge.  Apparently, he maintains something of a shrine to Shemp in his office.  I am sure this impresses his mediation clients to no end.

I am a staunch Curly fan, and quite frankly, Shemp does not crack my top 3 Stooges, not even close.  For me, and all right thinking people, Shemp comes in only slightly ahead of Joe Besser.

The Redford Theater in Detroit holds a twice yearly 3 Stooges festival.  On one occasion, a group of esteemed lawyers:  Wayne Miller, Chris Hastings, Mark Sucher, Stan Feldman, and I attended the spring Stooge festival.  A fine time was had by all.   After the theater, we adjourned to Morton's in Southfield.  Wayne suggested a game.  We were to go around the table and name the biggest jerk (euphemism alert) defense attorney we knew.  I was a plaintiff lawyer at the time.  The game did not go well, as we all came up with the same name within ten seconds.  That person's name will remain confidential.

"DRAGON' THE LINES"

 

I have dictated my legal briefs, motions and summaries using a variety of formats over the years.  Full size cassettes, micro cassettes and digital recorders.  About 4 years ago, I tried voice recognition software, which I now use exclusively.  I wear a head set like an air traffic controller, or a help desk tech.

I really like the system, though I am the only lawyer in our office using it.  Turn around time is cut to nothing.  

There is only one downside.  While the software is incapable of misspelling a word, it can sometime produce the wrong word....spelled correctly.

Proofreading, my least favorite activity, does become a bit of a challenge.  A misspelling will often jump out at you.  A wrong word, spelled correctly?  Not so much.

So, a few errors have crept into my final work product.  I wish I had compiled a list over the years.

However, I remember one mistake very well.

I had reported a case settlement to my carrier.  I indicated that the case had been resolved at a facilitation with attorney "Stool Weiner".  For those few who may not know, I had meant to say "Stu Weiner", the dean of Southeast Michigan facilitators/mediators.  In fact, I believe there is a proposed local court rule under consideration in Wayne County that would require a Court Order to use someone other than Stu.

Anyway, the adjuster caught the error and kind of chuckled about it when next we spoke.  Well, I said, it was a shitty case.  Which caused a huge burst of laughter from the adjuster, as I hoped it would.  I will say, from that day, I got a lot of work from that adjuster....right up to the time she retired.  So it goes.

Food fight y'all...I meant, Good Night to All.

LAWYER CARTOON OF THE WEEK-4

A LOVELY PARTING GIFT FROM BERNSTEIN & BERNSTEIN

Back in the simpler days of attorney firm self-promotion, firms would give new clients a small memento of the newly formed attorney/client relationship.  Common items were pens, coffee mugs, refrigerator magnets, notepads, key chains, penlights and plastic drink bottles.  All of which had the firm's name and phone number prominently displayed.

When I did plaintiff's work at Bernstein & Bernstein, I remember we had some really low quality ball point pens that were included in every new file package.  The client could sign the retainer agreement and keep the pen.  Impressive.   Kind of like signing a nuclear non-proliferation treaty.  The pen, as required, had the firm name and main phone number.

To be honest, I stopped giving out the pens to new clients.  I didn't want them to connect a poor quality writing instrument with possible poor quality legal representation.

I guess I didn't know when I was well off.  One day, while looking for some office supply item, I came across a large box filled with the the promotional item pictured above.  A nice chrome-like, multi-purpose, multi-bladed jackknife.

Good Lord.  I an not sure who authorized that purchase..  Given the the rather rough and tumble (to coin a phrase) background of many of our clients, I don't know how he thought it was a good idea to arm them.  With the name and phone number of the firm to boot.

"Channel 4 with Breaking News.  Police are searching for the masked man who robbed a local west side gas station last night.  Fortunately, the attendant is expected to recover from several stab wounds suffered in the incident.  The assailant fled the scene and is still at large, but the police were able to recover the weapon used in the attack, a silver jackknife engraved with the name and phone number of a suburban personal injury law firm.  Calls to the law office were not returned.  Prosecutors are considering a issuing a warrant to obtain the firm's client list."

Dr. Joyce Brothers did say that there was no such thing as bad publicity, but I am not so sure.

I have been gone from B&B for several years, but I hope the box and its contents have remained untouched since.

 

DR. DON NEWMAN-PART 2

Some of my personal memories of Dr. Don Newman, who died on December 8, 2018 can be found here.  

Here are some of the recollections of Dr. Don and the Newman clan,  posted by other attorneys (both plaintiff and defense) on FB.

From  Mike DePolo:

"I agree that Don was the calmest of the clan. My favorite was Steve, with whom I had the most experience. We would get into these word games where, on the rare occasion I trapped him, he would get the smile on his face, wink at me, and give me the answer I needed. Some of my best days in the business were with Steve and Al Gurvitz, where we'd do two or three deps in the morning.

My favorite Newman story, however, actually involved Max. The plaintiff hired Steve for the IME, and he testified that we were the stuckee. Chuhran convinced his client to hire Max to stick the co-defendant and sent me to the dep. Max refused to let me prep him, saying not to worry because he's got it all covered. Direct went in just fine. Plaintiff asked a few questions of little import. Co-defendant, knowing he's not going to change Max's mind, instead tried to pump up Steve's credentials and skills as a doctor, which Max eagerly agreed with, finally adding, "I taught him everything he knows." Co-defendant then asked the one question too many, something on the order of: "So if Steve Newman is such a great doctor, why don't you agree that [DePolo's client] is responsible?" And Max answers, "Well, I taught him everything he knows, but I haven't taught him everything *I* know!"

From Patrick McGladdery:

" Most of my experiences were with Steve and I enjoyed some of the same experiences you described. I always enjoyed deposing him even if the result did not always favor my client."

From Ed Battersby:

"He sure was a fine fellow. He was also smart, funny and regular. He’ll be missed."

From Roger A. Smith:

"So sad ; I remember he and his brother sitting through conducted depositions of their father to learn the art of advocacy 😀. A good chap."

From Dennis Morse:

"I grew up in the same neighborhood as the Newmans. Max was a customer of my dad's store and they were friendly. I have several medical stories after law school but the best one can't be posted. It involved their sister. Just a funny youthful event involving the authorities back in the 1950's! Great memories...…."

From Kim Rachau:

"I only participated in deps on Don a few times compared to Steve. They were always gentlemen. Sorry to hear of this."

Finally, this from Tom Misuraca:

Tom passed away January 9, 2019.

Tempus Fugit.  Lex Fugit.