LEX FUGIT

GUEST POSTER: JUDGE DAVID ALLEN*

LESSONS LEARNED AND LESSONS MISSED

 

Attorney Frank Palazzolo, may he rest in peace, was a big part of the start of my journey in the law.  Frank mentored me in one brief encounter, in a way he probably never really realized, and without ever uttering the word “mentor”, making the encounter all the more authentic and meaningful.  As I reflect on the long ago lesson learned, I am reminded of all that we are missing in this remote court Covid world we find ourselves in. 

 Frank and I had a settlement conference in front of Judge Sean Cox.  Judge Cox presided in Wayne Circuit back then.  I had been out of law school a few years by then.  I didn’t know much about Frank at the time, but he had been practicing law for many years by the time I first met him.   I, on the other hand, was a “know nothing” (some attorneys might still use this moniker on me these days, just ask around after motion call!) young attorney trying to impress a new client on a fairly routine business case.

 I was exchanging a few pleasantries with Frank while awaiting our chance to see Judge Cox, but Frank was clearly anxious to get to another more important matter he had to cover elsewhere.  I started to sense that he was going to shut down my annoying exchange of pleasantries, when suddenly he turns to me and says “kid what’s your client’s bottom line, I gotta get out of here.”  (Yes, he called me kid.)  I had to think for a minute, should I try to capitalize on his impetuousness and gin up my client’s number, thereby coming back a bigger hero to my client?  I thought better of it and gave him pretty close to the bottom line and he said “you have a deal.” There was no haggle, no fuss, just his word and a handshake.  For Frank, this case was an insignificant annoyance, for me the case was a big deal as this client, pleased with the result, had plenty of work to send my way afterwards.  (Sorry Butzel Long, Frank unknowingly helped me purloin one of your clients!)

"THERE'S THE BRAVEST MAN IN WAYNE COUNTY!"--JUDGE DAVID ALLEN, WAYNE COUNTY CIRCUIT JUDGE, APRIL 17, 2015

To whom was Judge Allen, shown at right, referring--in open court, yet?

Your humble and obedient correspondent, no less.

Too bad I wasn't on LinkedIn at the time.  LinkedIn, our motto is "Modesty Never Forbids".

The occasion?  That morning, an article I had written called "Show Me a Sign", had just appeared in  Detroit Legal News.

At motion call that Friday, I think I was looking for an opponent who I had been informed was in Judge Allen's courtroom.  I opened the courtroom's door, and took a step in, searching for the lawyer.  Judge Allen, who I know quite well, was already on the bench, hearing a motion.  When the judge saw me, he stopped the hearing, pointed at me, and announced, well, the quote that is the title of this piece.  He said some nice things about me, and then got back to business.  I was busy signing autographs.

About the article:

I was still a plaintiff lawyer back then, and the article, which can be found here,  dealt with Michigan's Open and Obvious Doctrine.  Specifically, it dealt with judges who would  walk up and down the parking ramps in the Ford Auditorium underground parking facility across the street from the City County Building, in defiance of the "Do Not Walk On Ramp" signs, one of which is shown below right.  

Many of those judges would thereafter arrive at their courtrooms and then grant Summary Disposition motions on premises liability based  on  the  Open  and  Obvious  Doctrine.

The article set forth a colloquy from such a Motion's argument:

"Judge: Counsel, I am granting the Defendant's Motion for Summary Disposition. The black ice he fell on was Open and Obvious.

Attorney: But, your Honor, the ice was invisible.

Judge: Yes, but the Defendant has a witness who says there was a small patch of snow three blocks away from the accident scene. Your client should therefore have known that there was a possibility that there could be invisible black ice on that porch.

Attorney: But, Judge, my client is a policeman and that porch was at a house where he was responding to a domestic dispute call. The 911 caller said the home owner had pulled a gun.

Judge: So?

Attorney: So? He had to do his job. If he didn't go onto that porch he would have lost his job, at best, or there could have been lives lost at worst. Whatever the hazard was, it was unavoidable under the circumstances.

Judge: Not so. He could have used the back door.

Attorney: What back door?

Judge: All municipal fire codes require two entrances to a house. I am sure there was a back door. There had to be. And so your client had a choice. He didn't have to use that front door or go on that porch. Haven't you read the Hoffner case, counsel?

Attorney: I did, but I thought I was reading the latest issue of Mad Magazine. So, let's say there was a back door, what proof is there that the back porch had no ice on it?

Judge: What proof do you have that there was? Your client didn't bother to look back there, did he?

Attorney: Judge, when he went up the walk he looked through the front window and saw the owner with a gun in his hand.

Judge: Counsel, we do agree that your client fell, do we not?

Attorney: We do.

Judge: Then, obviously your client was not acting with reasonable care for his own safety at the time of his accident.

Attorney: Not to get personal, judge, but on the way in here this morning, I saw you walk up the Ford Auditorium parking ramp, though there is a "Danger, Don't Walk on Ramp" sign in plain view and it happened to be snowing at the time. How can you rule that my client wasn't acting reasonably?

Judge: Counsel, I did not fall.

Attorney: So?

BAGATELLES I

A few comparatively short, random flashbacks from my shadowy legal career.   A bit different than the flashback I had for 10 years of walking into the classroom building at Wayne State Law School to find all the students taking an exam of which I was apparently unaware.

I.  THE SAVOYARD CLUB

The Savoyard was a private club on the top floor of the Buhl Building.  The building opened in 1925, and the club opened in 1928.

Access was a bit odd.  An elevator took members to the 28th floor. Ahead was a vaulted stairway, with three turns and landings.  My first boss, an old time Irishman who started out around the time Jerome Cavanaugh was Mayor of Detroit, took me to an event there in the early 80s.  Very cool place, oozing old power.  I assumed that I'd be back.  But, with dwindling membership, the club closed in 1994, and as far as I know, Detroit's revitalization has not reached the space.

The Buhl Bar, on the ground floor of the same building, has a page on its website called the Savoyard Club, but it is not an attempt to reopen the space.

I did not know how the Savoyard Club got its name until very recently.  I used to relate the term "Savoyard" to devotees of Gilbert and Sullivan (my nerd background is showing).  But the Savoyard was actually a river in Detroit, and the Buhl Building was built over the stream, which was encased in stone by the City in 1836, having become something of an open sewer.

Who knew?

There is apparently a stained glass window with the crest of the Savoyard Club (which I don't remember seeing on my visit).  A depiction is shown on the match book on the left (I bought the matchbook on eBay), and a graphic is shown at right.

While writing this I now recall that when I started as a clerk for my first boss, he was dealing with the fallout on a case, wherein a deposition had been scheduled on the day of Jerome Cavanagh's funeral.  My boss called the opposition and left a message asking that the deposition be adjourned so he could attend the funeral. He assumed that was all that was necessary, given the event and the "rules of the game" for gentleperson lawyers.  He learned later that the attorney did not adjourn, went forward with the dep and the boss was stuck with the very poor testimony (for him) from that event. 

Not adjourning the dep was a clear violation of the rules of the Guild.  This is not the way (to coin a phrase).

II.  A POST HEARING NIP OF SCOTCH IN HIS HONOR'S CHAMBERS

During my time with the same boss referred to above.  He sent me to cover a hearing before a judge that was one of his friends.  Last hearing of the day, after which the judge called both counsel into his chambers and in the course of discussing something other than the "instant case", he asked us if we wanted a drink?  Yes, certainly.  He pulled a bottle of scotch out his desk drawer and poured a nip for all in chambers.  Just one.

This is wonderful, I thought.  Real 30s-40s era movie stuff (excluding Judge Hardy, of course).  This is why I became a lawyer.  I mean that seriously.  I assumed this would be merely the first of many such in camera proceedings.

Never happened again.

And, that unique event didn't really put me in tight with that judge.  About a year later, he reamed me from the bench for checking in on an 8:30am hearing---at 8:35am.

I am reminded of the not so unique occasions wherein I would be walking to the Ford Auditorium parking structure at 9:45am, having completed my Friday Wayne County Motion call.  I would often greet more than one Circuit judge who was just arriving for his/her 8:30 or 9am Motion call.

So it goes.  It's good to be the King.