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.  

After your failed settlement negotiations, you'd go down (or up, or over) to the 17th floor and report to Nick.  He'd check his list to see if there were any judge's available to try a jury case.  The Assignment Clerk's office had some sort of procedure to determine this, but as will be seen later in this post, some judges employed various stratagems to avoid taking a case.  Actually, the judges would have no idea whether they'd be getting a 3 day auto neg case or a 6 week product liability case (Note:  Product liability was one of the ancient "forms of action" in the common law system.  It has been abolished by an "enlightened" legislature in much the same way as the old Writ of quare impedit).

If Nick found a judge (meaning one not clever enough to avoid the assignment), you were sent to that judge for trial.  If not, you'd hang around the 17th floor hallway waiting for an update on judicial availability.  If nothing happened by around Noon, you'd be given a new date for a new Settlement Conference with a TBD judge. The first time I was sent  to Nick's office, my client and I hung around for an hour, after which Nick called us in to the office and told us to come back in 6 months.  Quite a surprise, that was.

Alternatively, you could be put on something called "Spin Off". Spin off was a system wherein your case was put on a list and you could be called at any time to start trial.  

One of my spin off stories happened in 1989, shortly before Nick retired.  After our settlement conference, the parties were $25,000 apart.  By which I mean the defendant had offered $5,000.  Both sides were sent to Nick, and after an hour or 2, with no judges available, we were put on spin off and sent "home"-the office.

The next afternoon I was in my office,  talking to a potential client, who had been involved in an auto accident.  I remember she had come in with her mother, and I recall the the injured young lady, to quote the proverbial defense IME, appeared to be in "no acute distress".  In fact, early on I got the impression she was relishing what she imagined would be her role as the most important part of an upcoming medical/legal drama.  My assessment was confirmed when she told me, with a disappointed frown playing about her face, that she had hoped our meeting be like "LA Law".  Yes, it was that long ago.  

Right then, I got a call from Nick's office telling me to report the following morning to Judge Lucile Watts for trial; which is a bit "LA Law"-ish if you ask me.  Oh, yes, and my erstwhile client was further disappointed that afternoon, when I declined to accept her case.  She was a "victim", but had no real injury. She did not consider that an impediment to a successful lawsuit.  I will leave that statement there.

We started trial the next morning, and I am happy(if not somewhat surprised at the time) to say that I got a jury verdict.  A great lawyer like me, surprised?  Certainly a very un-LinkedIn admission.  The truth of the matter was that I had been at my office for less than 2 weeks when this case before the Settlement Conference.  And, much like the Wayne County Circuit Court at that time, the attorneys at my firm did not have individual case dockets.  The firm's files were communal, which I was to discover was not a great system

My introduction to the file came on the Friday afternoon before Labor Day weekend.  My boss, Harvey Howitt, told me to look at the file over the weekend and meet him at the Settlement Conference courtroom at 8:45am Tuesday morning.  I met Harvey and the client at the time and place.  Harvey introduced me to the client, told her I would  be her attorney, and left.  Negotiations were quite brief.  I was told that 5K was all that the defense would ever offer, and off to Nick Shaheen we went.

We started trial 48 hours later.  Funny thing, but my firm had scheduled no medical deps for the trial they didn't really expect was coming.  With no one really responsible for that, or any other, particular file, no one prepped for possibility of trial. Most cases settled, right?  

So, with no treater deps in the can, I came to meet Dr. Donald Newman, a man I came to know well and love over many years.  He had done a one time evaluation of my client, a "PME" to negate the defense's one time "DME".  Dr. Don agreed to come in live and testify as to his one time evaluation.

He was a wonderful, likable, believable witness, and it was then that I first heard what would be an oft-repeated term, "Muscle Shortening".

I got my verdict.  I mean, the client got her verdict.   I remember it came in at about 12:30pm, just before lunch.  Flush with  victory, I thanked my client, wished her well, packed up my stuff and hurriedly left the Courthouse.  I then proceeded directly across Larned and Congress, and entered the First National Building where we maintained a branch office.  Because, at 1pm, I had to meet to prepare a client for a 2pm deposition in some defense attorney's office downtown.

"Sic transit gloria mundi."

Nick Shaheen

This is only the Reader's Digest version of that case.  But this post goes on too long, and I want to add this quote from Nick Shaheen's  Tribute Wall on the DeGusipe Funeral Home site.  It was written by now retired Wayne County Circuit Judge, Robert J. Columbo, Jr.  It recalls Nick Shaheen's travails in finding "available" trial  court judges:

"Nick Shahen was one of the finest gentleman I ever knew. I served as a judge on the Wayne County Circuit Court from 1983 - 2018. I watched how Nick was able to get judges to take cases for trial, while the judges did all they could to avoid work. I remember one time he said to me. " I don't mind judges going to seminars, I just wish they would learn something." He was a true friend and a pleasure to work with every day. He made the Wayne County Circuit Court judges work and the Court function. I will be at St Fabian, where I once was an altar boy, for Nick's service. Retired Chief Judge Robert J. Colombo, Jr."

Times have changed.  Dr. Don is gone.  Nick Shaheen is gone.  Tempus, and Lex Fugit.

One bit of advice.  Keep in touch with your legal pals, and not just when you want a favor/free legal advice.  Nobody is rubbing elbows with the gang in the halls of justice so much these days or for the foreseeable future.  We won't be around forever. 

It is worth the effort.

Although neither Mr. Maher nor I were tech savvy enough to take pictures of our Moose Preserve orders for posting on Instragram, we did each recommended to the other a new mystery series writer.  Which is of much more lasting benefit

We will keep in touch.  

And so should you.