LEX FUGIT

BUTLER TO "RE-TIRE" (PARTIALLY)--AS THOUSANDS CHEER

After a career of representing plaintiffs and defendants in personal injury cases, come February 26, 2021, I will be retiring from my position as a litigation attorney at Landry, Mazzeo & Dembinski-cue the confetti.

This reminds me, as many things do, of a scene from a Marx Brothers movie, Animal Crackers. Groucho, as Captain Jeffrey T. Spaulding is talking with patron of the arts, Roscoe W. Chandler. 

"Spaulding:” I congratulate you...there's one thing that I've always wanted to do before I quit.”
Chandler: “What is that?”
Spaulding: “Retire. You know, I've always had an idea that my retirement would be the greatest contribution to science (insert “the Law”-ed.) that the world has ever known.”

So, with the Michigan legal scene beset by COVID 19 restrictions, a new set of Court Rules and a new No-Fault Act, it is my hope that my absence from the courtroom will help the Michigan legal system turn the corner.  You're welcome.

Lest people get their hopes up too high, I will still be around.  I will continue to mediate-by phone, by Zoom, in person-Have File Will Travel.  Personally, I will welcome a return to in person mediations.  It is far too easy to say "No" from behind the comfy desk, and I find I have been most successful with decision makers present.

My new contact email is mjbutler722@gmail.com.  

My phone number and CV can be found here or on my www.lexfugit.com website.  Starting March 1, I can guarantee virtually immediate availability.

I will also continue to sit as a neutral Wayne County Case Evaluator.

And, my website continues to look for Michigan lawyers' "You can't make this stuff up" stories.  Posts submitted to my email address will be gratefully received.

The lexfugit.com website will soon begin its podcast, sponsored by the Detroit Bar Association.  Panelists include attorneys John Cothorn, Paula Cole, Franci Silver, Ron Steinberg with guests to be announced.

One of the projects of the site and the podcast is to host an annual party at Jacoby's on Brush Street-since 1904, so they've survived pandemics before this one.  The party we hope will be on the day before Thanksgiving.  No fundraising, no speakers, no program, no no awards.  Just a  bunch of legal types getting together to enjoy each others' company.

Finally, in this post I have been able to incorporate a couple of my favorite things:  the Marx Brothers and vintage advertising.  "Time to Re-Tire" was the slogan of the now defunct Fisk Tire Company, shown below.  And to come full circle, the Fisk Tire Boy was featured in a Marx Brothers movie, "Love Happy".

Be well.  We will see each other again.

 

LEAVING LINKEDIN SELF PROMOTION BEHIND

I am not a fan of LinkedIn, whose motto appears to be: Modesty Never Forbids.

The incessant self-congratulation, "I am humbled and honored to be named-(insert questionable achievement here)" is enough to make you sick.

Most LinkedIn accomplishments seem more like a catalog of the participation trophies of the business world.

Actual achievements, to the extent people feel they must blow their own horn, get lost amidst chaff like "Another win in Court today!  Extended Scheduling Order from Track 1 to Track 2".  

So, when I recently received a real award, I was not content with a LinkedIn humblebrag.  

During the pandemic, I saw a lot of lawn signs in the neighborhood, even before the election.  Graduations and such like were front and center for the world to see, for months.

And I thought, what's good enough for my neighbor's kid who graduated from the local preschool (I am not making this up), was good enough for me.  So, I commissioned the lawn sign shown above, as testament to my selection as a Fellow of the Detroit Bar Association.  

And, in a true LinkedIn worthy touch, I enhanced the effect by placing it on the lawn of a house more expensive than mine.

For those who can't read, the certificate is shown below:

This post is to poke fun at LinkedIn and not to show any disrespect to the DBA, a noble and wonderful institution that has been around since 1836, and which continues to amaze me with its continuing efforts to serve the legal community and the citizens of Metro Detroit.

SY ORLOWSKI'S MOST "IMPOTENT" CASE*

*For purposes of this post, accent the second syllable of impotent.-ed.

This story is a courtroom classic.  It is Simeon (Sy) Orlowski's story, but sadly, Sy passed away in 2014.  

It is set forth here as related by Dan Makarski, a Dean of Michigan Facilitators, 

Dan's services are in such demand, a personal injury attorney is well advised to contact his assistant June Hayes for mediation dates before the accident happens.  

Sy was a great attorney and an even better man.  It is emblematic of his integrity, that he left a job, rather than carry out an unethical directive from a client.

At the time of this tale, Sy worked for the firm now called Secrest Wardle, in its (sadly) now closed branch office on Macomb Place in Mt. Clemens, a few short steps from the Macomb County Courthouse.

Sy was in an auto negligence jury trial in Macomb.  The direct exam of the plaintiff had ended at the lunch break.  Sy's cross exam would come at the beginning of the afternoon session.

Back at the office at lunchtime, Sy asked Dan what he was doing that afternoon.  He told Dan he might want to come  to court to see his cross.  Those who knew Sy know that he was the most self effacing of men.  This was not an ego trip.

As to the trial, fault for the accident was not a contended issue.  As to the requested compensation for plaintiff's injuries, money had been offered by Sy's client before trial, but the offer was not agreeable to the plaintiff.  He would take his chance with the jury.

Along with various bodily injuries, the plaintiff claimed he had become impotent as a result of the accident.

The morning trial session ended with plaintiff counsel completing his examination of his client.  The attorney wanted to end on a high note, and had his client testify about the trauma of becoming impotent because of the accident and the impact it had, and would continue to have, on his life-and the life of his devoted spouse.  He looked over to his wife, who was sitting at counsel table.  She wiped tears from her eyes.  Good luck, defense counsel.

Court reconvened in the afternoon, with Sy to cross examine the plaintiff.  His initial questions appeared fairly benign.  

"Sir, you have been sworn to tell the truth."  "Yes."

"And you have told the truth to the jurors here?"  "Yes."

"And you have always told the truth to your treating doctors as well?"

"Of course." (The plaintiff lawyer should have suspected something was coming.  Maybe he did).

"Sir, I'd like to show you this record of your visit to Dr. X, your treater for the injuries you have alleged in this accident."

At which time, Sy pulls out a blow up of a page of the plaintiff's post-accident medical records, and places it on an easel in full view of both the plaintiff and the jury.  Highlighted in yellow, is this portion of the client's medical history:

“Impotent—but only with wife.”

The eyes of several female jurors went wide, and a jaw or two dropped.

 

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.

 

A REAL "THROWBACK THURSDAY"-AAA's DETROIT COUNSEL 1983

Yesterday, December 30, 2020, while Rik "Mr. Wonderful" Mazzeo of our office was doing a little end of year clutter reduction, he came upon this gem from January, 1983. Given its vintage, the clutter reduction is perhaps not an annual event.

This is a cover letter for pleadings sent to the courtroom of Judge Patrick Duggan of the Wayne County Circuit Court.  Rik worked for AAA at the time and the firm's letterhead listed all the lawyers working for AAA's Detroit house counsel operation.

Before we get to the names on that list, a few more historical tidbits.  Firstly, the pleadings are being sent by mail, rather than through an efile system.  AAA's office was in the First Federal Building, where it occupied 3 floors.  The building, which at that time was home to the Michigan Court of Appeals, still stands.  It is no longer called the First Federal Building.  It has been renamed Woodward Plaza-I think.  The City County Building is now called the Coleman A. Young Municipal Center.

Judge Patrick Duggan (father of Detroit Mayor Mike Duggan), sat on the Wayne County Circuit bench at that time.  He was appointed to the federal bench in 2000.  He passed away earlier this year.  He presided over one of my more colorful cases about this time, which I think I will never choose to include in this chronicle.

In early 1983, I was working at a very small general practice firm in Livonia, and my entry into the PI "game" on the plaintiff's side at Thurswell, Chayet & Weiner was still 3 years down the road.  As to my chronological age, to use a facilitation term, it still had a 2 in front of it.

Also, I blacked out the names of the parties and the case number, as is probably proper.  Though, interestingly, the plaintiff had the same name as a guy I worked with at Hughes & Hatcher, one of two jobs I worked during my last year of law school.  Too back LinkedIn wasn't around then.

A lawyer firm's letterhead is a snapshot of firm membership at any given time, with lawyers who may be at the beginning, middle, or near the end of their careers.  Considering that I wouldn't start doing this work for 3 more years, I was surprised that I had cases with 42 of the 55 lawyers listed.  I find that amazing.  Not LinkedIn amazing, real world amazing.

Nearly 38 years later much has changed at AAA.  Only 2 of the attorneys listed still work for AAA.  One of them, Gene Hom, runs the firm.  I still remember, and sometimes use, Gene's "script"-he had it in his head, of course, for questioning plaintiffs about their injuries.

Several of the lawyers went on to other firms, where some still work.

Many, if not most on the list have retired.  Some have passed, most recently, Richard Haskins.  A couple, including Mr. Haskins, have children working as attorneys at the firm.

The firm is currently named: Hom, Corbett, Kramer, Harding & Dombrowski.  Of those lawyers, only Gene Hom worked for AAA in 1983.  My educated guess is that the others (all fine lawyers with whom I have had cases) were not licensed at that time.

I am going to type out all the names here, so Google will pick them up and hopefully some will see this little piece of history.  

Happy, Better, New Year.

Philip C. Dickinson               James H. Schoolmaster        R. Michael John                  

Roger P. Mourad                    David J. Lanctot                Dennis M. Killeen

Thomas A. Brandt                 Joyce E. Parker                  Karen M. Kulik

Edmund P. Arbour                 Eugene R. Hom                  John E. Sutton

Ronald R. Hanlon                 William. W. Taylor, II          Robert I. Gariepy

David E. Martin                    Clifford J. Sabol                Renee R. McDuffee

Richard Haskins                    Richard E. Eaton              John B. Geen

A. J. Galsterer, Jr.               Jeffrey Doan                     George J. David

Robert C. Marshall               Michael D. Smith               Daniel R. Siefer

Ranald Becker                     Paul R. Fischer                   Lynda D. Barbart

David R. Tuffley                  Clair W. Hoehn                   Philip R. Blanchard

Burton G. McGarry            Christine M. Fischer               James F. Hewson

C. T. McCutcheon, Jr.        A. Randolph Judd                 Rik Mazzeo

Edwin F. Dyer, II                James. M. Jourdan              John H. Cowley, Jr.

Charles A. Pfeffer            Ann Posner Frankel              Edward A. Batchelor,III

David S. Smith                 Timothy E. O'Neill                Patricia DiBaattista Hartig

Kenneth D. Dodson           Harry A. Meyer, II                Jeffrey L. Tolari

Sarah Wildgen Sweet        Clifford W. Schiesel             Michele M. Arene

                                                                                 Louis W. Andraski

LEX FUGIT-JUDGE ROLAND OLZARK, WAYNE COUNTY CIRCUIT COURT, CATHOLIC CENTRAL '45

 

Back at the end of March, 2020 I wrote a post for this blog about Judge Olzark.  The post can be found here.

The article combined two areas of interest for me-the Detroit legal scene, the subject of this blog, and Detroit Catholic school history.

Judge Olzark served as a Wayne County Circuit judge and was a member of 1945 graduating class of Detroit Catholic Central High School (my alma mater).

On the evening of Sunday, December 27, 2020 I saw I had a FB friend request, and a request to join the "I Went to Catholic School in Metro Detroit" FB group I moderate, from an Elena Olzark.  I thought there might be a connection.  Later in the evening I checked my work email, and there was a message from Elena.  She is Judge Olzark's daughter.  She found the March blog post during an internet search.  The judge was not doing well, and she was searching for material in anticipation of writing an obituary.  She had some questions about how I had obtained certain high school photos of young Roland.  I replied that I'd call her on Monday.

Elena lives in San Francisco.  I called her early Monday afternoon Detroit time.  She said she had been able to Facetime her dad earlier that morning and had read him the article.  

We talked about the judge, his life and career and matters Detroit-related for about a half hour.  

She thanked me for my post.  I did relate something to her something I had not included in the post, namely that Judge Olzark and I did have our battles in the courtroom from time to time.  But, I did forget to mention, he also helped me out on one particularly ticklish matter, when a strict reading of the court rules could have allowed him to do otherwise, to my detriment.  I still remember that, from a lot of years ago.

I asked Elena to keep me advised of events, and I saw late this afternoon on Facebook  that Judge Olzark had passed away.  I assumed that happened today, Tuesday the 29th, but looking closer I saw that he died on Monday.  I had another message from Elena today and she thinks he may have passed shortly after her Facetime chat with him.

We have, sadly, lost a member of the "Guild" and a fellow Shamrock.  

The purpose of Lex Fugit is to remember those who do, and have practiced law in Southeast Michigan, and to preserve those memories.

I am glad I was able to write about Judge Olzark before he passed.

We are still aiming towards the November 24, 2021 party at Jacoby's on Brush, circumstances allowing.  Again, no program, no speeches, no awards, no fundraising.  Just fellowship among us legal types.

By the way Elena Olzark is familiar with Jacobys both as a patron and as the place of employment of one of her close friends.  I am glad she knows where it is.  She is invited.

 

ANOTHER GREAT DAY FOR ANGLO-AMERICAN JURISPRUDENCE

 

Special thanks to Andrew Stevens, of Landry, Mazzeo & Dembinski for bringing this story to my attention: to wit,

"Son Wins Lawsuit After Mom Throws Away His Best Porno Mags"

This case comes out of federal court in our great state of Michigan.

Son moves back in with his parents after a divorce.  He brings with him his prized stash of porn (magazines, films and sex toys), apparently accumulated over some time.  I wonder if that collection was an asset awarded to him in the property settlement?

It appears he did mention the collection to his parents, who did not approve. 

When he moved out, several years later, he sent for his property.  The boxes containing the "porn stash" (not to be confused with "pornstache" ), were not included in the items sent.  The parents had destroyed the items, emailing their son and heir that they had done him a favor by getting rid of the stuff.  Opinions apparently differed.

The case filed by the son ended up in Federal Court, so the son had to allege the collection was worth at least $75,000.  

The son did win a summary disposition motion on the liability issue.  Damages to be determined.  More about that later.

"His attorney, Miles Greengard, contends that his client should receive treble damages, which is allowed under his claim of conversion of property."

“We have asked the Court for treble damages, which we believe are warranted given the wanton destruction of the property,” he said.

Attorney Greengard was pleased with the judge’s ruling. The case wasn’t just about a guy and his dirty magazines, he said.

“This was a collection of often irreplaceable items and property,” Greengard said.  

I am sure Mr. Greengard's parents are very proud of his achievement:  "My son, the porn preserver".

I was about to compose what I thought Greengard's humblebrag LinkedIn post about this case might look like.  Then I thought, hey, maybe Greengard posted one himself.  So I checked and while Greengard is on LinkedIn, he has not yet seen fit to broadcast his "win".  A wise move, in my opinion.  That doesn't mean he won't post about the case eventually (maybe after the damages are determined), but I find most LinkedIn dweebs/twits/dorks/wonks can't post their "achievements/wins/non-losses/trivia"  fast enough.

I understand most of us have had cases we don't really want to appear in our published memoirs.  We are not all in a position to pick and chose our cases.  

I remember one particular file that was placed on my desk while I was out doing justice somewhere.  The lawsuit had already been filed.  My hero had sustained an undeniably serious injury.

 

NOVEMBER 24-THE PLAN, THE HOPE

Sadly, there will be a Lex Fugit "Guild" update soon.  We have lost more members.

Therefore, before it gets later than it already is, it is the plan of the Lex Fugiteers to host a party on Wednesday, November 24, 2021 at Jacoby's on Brush St. in Detroit, though we haven't yet put down a deposit.

Opening in 1904, Jacobys will make us all feel young.  A lawyers' bar, a free lunch at Jacoby's was part of a case evaluator's (then called mediator's) pay when the Mediation Tribunal was at the Millender Center.

The night before Thanksgiving is the biggest bar night of the year, with a Wings game and the parade prep going on downtown.

The hope is that we are all vaccinated by then and group events are back by then.  

The hope is that Jacoby's makes it through the next 11 months and remains open.  It must have survived he 1918 Spanish flu pandemic, right?

The plan is that legal types (lawyers, judges, clerks , court reporters etc.) of all ages and vintages will gather to reacquaint,  reconnect, and reminisce (pronounced "re-minisce" for alliterative purposes).

The plan is: no agenda, no sponsors, no program, no speakers, no awards, no faux-wards, no promotions, no fundraising.  

Jacoby's second floor holds 75.  We plan to fill it.

Save the date-we hope.