"The Beard Grows, But The Head Does Not Grow Wiser."
"Lawyers work hard and, like us, they're human, many of them."-Dick Cavett
“A judge is a law student who marks his own examination papers.” - H. L. Mencken
"I tell you, I'll consult my lawyer. And if he advises me to do it, I'll get a new lawyer."-Groucho Marx 
"We are all here for a spell, get all the good laughs you can."
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?
Judge: So, obviously I was acting reasonably.
Attorney: So you habitually walking up that narrow ramp against traffic and in disregard of an explicit warning isn't negligent? As a matter of law?
Judge: You are correct.
Attorney: Judge, when do the rest of the Marx Brothers arrive?
Judge: Counsel, I believe you are in contempt.
Attorney: Well, that's Open and Obvious, at least.
One brave lawyer did point out this behavior to one of the offending (I'm sorry) reasonable judges-away from the bench. That judge did admit that he/she could probably not sue the structure if he/she fell."
David Allen is one of my favorite judges. I have asked him a couple of times to contribute to this blog. He says he will. But these continue to be strange times.
by the way, why is a defense lawyer blogging about an article he wrote back in his plaintiff days?
Comments