LEX FUGIT

MEDIATION MERRY MIXUPS-RELEASE OF ALL FURRIERS

In the COVID 19 legal world, virtually all proceedings have become, well, virtual.  Motions, depositions, settlement conferences, case evaluations, mediations and some trials are Zoom affairs.  While jury trials may come back as in person proceedings after the pandemic, sadly I think remote/virtual everything else is here to stay.  For most, convenience trumps, if you'll forgive the word, all other considerations.

I have written many times about my preference for in person proceedings for everything. Few exceptions. Michigan Lawyers Weekly recently ran my article The Thrill of the Grass, on this subject.  For those who can't follow the previous link (you don't have a MLW subscription) the article also appears here on this site.

I am a mediator and I feel my peculiar talents in this field are best suited to in person hearings.  Harder for the adjuster to say no to your face than by phone from the comfy desk across the country.  Harder to connect with a plaintiff when they are on the phone from their kitchen/living room/basement.

Communication also suffers when attorneys are multitasking and negotiating by phone, or text, or email. Misunderstandings result and may take a long time to clear up.  Some don't.

I was mediating a case last Friday.  Small case but nonetheless extended Zoom sessions, emails, and phone calls over several weeks.  I was the most motivated party in this mediation as I didn't want it to get to Judge David Allen that I couldn't settle this one.  I told one of the attorneys so, in writing.  I predicted Judge Allen saying, "That no good Butler couldn't settle this case?  He'll never mediate in this town again!"

In PIP cases, insurers often request a settlement with a full release of past, present and future claims.  Sometimes the future release may be for only certain benefits or certain medical providers.  This issue did come up in negotiations, which had moved from phone to email exchanges.  The insurer wanted the settlement to include a release of past, present and future claims.  That was conveyed to the plaintiff lawyer.  After some time, he responded with a counter demand with this: "Plaintiff will release all furriers".  This had me scrambling for my 2019 No-Fault amendments and DIFS bulletins.  And, by gosh, the new No-Fault Act and the DIFS, see link here, to furriers as Section 3157 providers.  And providers subject to fee schedules which went into effect on July 1, 2021.

Being a full service mediator, I did some additional research, and discovered-no surprise here, that furriers are not part of the Medicare price structure.  Therefore, fur providers are limited to charging only 55% of what they charged, on average, as of January 1, 2019. 

I discovered that the fur industry was outraged by the changes.  Firstly, the new law did not differentiate among stoles, jackets and full length coats, not to mention coats merely trimmed with fur.  And to make matters worse, the "average" to be used was for skunk and muskrat, further slashing the income of mink and ermine providers.  Sadly, this is the kind of chaos to be expected from a statutory scheme drafted in haste, so as to be in time for the 2019 Mackinac Policy Conference.  The weather was nice, I was informed.

I conveyed the results of my research to the parties in a lengthy email.  Shortly thereafter I was informed by plaintiff's counsel, that he had meant to write "futures" rather than "furriers", the latter being an unfortunate autocomplete error overlooked in the haste of multitasking.  If "furrier" was preferred to "future" on the attorney's device, he must be doing quite well.

The case did settle shortly thereafter.

I decided not to bill the parties for my No-Fault furrier research.  But, would this misunderstanding have occurred in an in person proceeding?  I think not.  And there, perhaps, is a lesson for us all.

I should put a "Humor Alert" somewhere in this post.  The furrier autocomplete was real, but the subsequent text is fictional-though I haven't checked DIFS today.

 

LADDER INSURANCE COMPANY AD

I ran a blog back in the late 2000s-mid 2010s, when I was a plaintiff PI attorney.  I took it off line in 2015, though I have access to scaled down versions of some of the old posts. 

I remember that the blog had many post categories, including "Tasteless Attorney Ads", "Great (in the sarcastic sense) Insurance Company Ads" and a separate category for bad political ads.  

I don't keep track of such things so much anymore.   A comparison of those vintage ads to the present collection of inaccurate, tasteless and offensive garbage on various media platforms would be like comparing My Little Margie to Squid Game.  But, one TV ad has caught my attention and deserves mention.

Ladder Insurance Company is a carrier I had never heard of until I saw an ad a couple of weeks ago.  A screen cap is shown above, shows the punchline to, "Life insurance so good.....:

they're gonna want you dead."

Looking at the commercial again, I don't think the son cared if there was any financial incentive for taking a pop at the old man.

And if that side-splitter was not enough, there's this at the end:

 

"BUT SERIOUSLY:  INTENTIONALLY KILLING A POLICYHOLDER WILL VOID ALL LIFE INSURANCE BENEFITS."

 

 

Hilarious as that line may be, it is false....or at least it had better be.  Hopefully, should the policyholder be intentionally killed by anyone other than a beneficiary, the policy would pay?  Not as arguably funny that way.  But, I am sure it is all explained in the policy's fine print, which isn't quite as humorous as the commercial and isn't really all that important, except to the insurance company, at such time as your beneficiaries have the temerity to make a claim on the policy you paid for.

I am sure the theory behind funny insurance commercials is to get you to run to the computer and log on to the company's site, even if the commercial doesn't mention anything about insurance.  My favorite commercials are those with the counselor trying to prevent new homeowners from becoming their parents.  Not quite so funny after I realized that I am now at the age of the parents the homeowners don't want to become.  Whatever.  I also realized that after seeing the commercials dozens of times, I could not remember the name of the insurance company.  I took special note the next time, and realized it was Progressive.  I didn't run to the computer to sign up.

AUTO CORRECT-STOOL WEINER

(Note:  This photo, with the same resolution, was taken from Mr. Weiner's firm website-which proves that a slick media footprint is not a requirement for success-ed.)

I still remember a few depositions from early in my career, where the testimony was taken down by a court reporter using a pencil and steno pad.

The first Dictaphone I encountered (but was not allowed to use), was at the first firm I worked at.  My boss's dictation was recorded on to a "belt" shown in the picture at the bottom of this post.  I continue to have no idea how it worked.

In the mid-80s I worked at a high-powered plaintiff PI firm of 13 attorneys.  We had a dedicated "Word Processing Department" comprised of 2 machines.  All secretaries had Selectric typewriters.  No computers.

 When I started as a law clerk, I wrote out my pleadings for later typing by the secretary.  Over the years I progressed to full size cassettes, micro cassettes, and digital Dictaphones.  During the last 5 years of my litigating career, I created my pleadings using voice recognition software.  I started using voice as I was taking more time in proofreading transcription than I spent dictating in the first place.  The assistant I shared with another attorney apparently felt that she was merely creating a first draft, and so long as words got on paper, I could fix it.  And she must have disabled spell check and grammar check as well.  Maybe they cut down on her typing speed.

Once learned, voice recognition worked well for me.  I could prepare finished documents in real time.  In the olden days, my transcription had been delayed as long as three weeks.  And, with the headset on, I looked like an air traffic controller.

The bad thing about voice recognition software is, that while it can't misspell a word-which is nice, it can use the wrong word, spelled correctly.  Sort of its own version of auto correct.

Auto correct errors were hard to find, sometimes, especially if i was in a rush, and was quickly reading what I expected to see rather than what was actually on the screen before me.  During my defense career, there were a lot of long reports to the adjusters, and, well....mistakes were made.  I never liked reviewing one of my Case Evaluation summaries before the hearing and noticing a howler or two I missed before it was filed.

CATHOLIC CENTRAL MOCK TRIAL-THE NEXT GENERATION

I am coaching the Detroit Catholic Central Mock Trial team this year.  So far, it has been a great experience with some fine young men.

I coached back in 2015 and came across this archived post from an old blog of mine.  Actually, this year's case has much in common with the issues involved in the 2014-2015 matter.  One big difference--for the second year in a row, the entire competition will be virtual.  Considering the numbers of students who descended on Oakland County Circuit Court for the 2015 regional, the decision is understandable.  Too bad that the students will miss the adrenaline rush of open court.

Good luck to all.

I had the pleasure of helping the Catholic Central Mock Trial teams prepare for the state regional competition March 14, 2015 at the Oakland County Circuit Court. This year's case was a fairly complex one involving claims of invasion of privacy and eavesdropping through remote computer monitoring of students by a company running a high school laptop program.

Of the 29 teams participating, only 4 get automatic qualification for States on March 28. Another 4 teams, getting Honorable Mention can qualify as wild cards. With so few moving on, a loss in any of the 3 trials in the Regional virtually guarantees elimination.

All teams were remarkably well prepared, and the competition was pretty intense. I was very impressed by our CC boys, who, in my unbiased opinion, looked like real pros. They, frankly, blew me away. CC owes special thanks to Faculty Advisor Erik Nilsen and Judge Lita M. Popke of the Wayne County Circuit Court who was lead coach for the teams.

One of our teams did get Honorable Mention and we await word about Wild Card qualifications.

Interesting to learn that one of our opponents today was Detroit Communication and Media Arts High School, which is housed in the old St. Mary's of Redford High School building.

Oh, yes, and by the way, CC won the state Hockey title March 14th as well.

LEX FUGIT-TOM AZONI

Tom Azoni, career-long trial attorney, Facebook friend and perhaps most importantly a graduate of Austin Catholic High School (Go, Friars!)  retired as Senior Partner at Secrest Wardle last week.  Among other things, Tom's bio states he was a part of the firm's "Amusement and Leisure" group.  I must find out more about that.

He posted a picture from his retirement lunch on Facebook with this comment: "Thank you all for the kind comments. I loved practicing law, particularly walking the hallways of the courthouses where I heard the best stories, heard and told the tallest tales and got to work with so many fine lawyers. Best to you all."  Jan. 17, 2022.

I never saw a more perfect opening for a story for this site, so I contacted Tom, and he provided me with this gem:

"Ok, here’s my favorite. I was at a settlement conference in Wayne Circuit. The judge sent us out to the hallway to talk about a resolution. When we got there, I said, “So, what’s it going to take? I don’t have much. It’s a lousy case.” The other attorney pulled out a vial with a yellow liquid in it and said, “Before we begin, my client would like you to rub this oil in your hands.” I said, “Has this oil been blessed?” He answered “Yes, it’s been sanctified.” To which I said, “Let me guess. She thinks that if I put the oil on my hands, God will open my wallet. Right?” “Right”. “Ok. Let’s give it a try.” After sanctifying my hands, I had to tell him, “Sorry pal, I still only have $2500”. She took the money. Tom"

Wonderful story.  That sure couldn't happen on Zoom.

I hope Tom will share some more of his stories.  If so, I can post them to my semi-regular Lex Fugit feature in Detroit Lawyer magazine.

Thanks, again Tom.  Enjoy retirement.  You will soon find that you still don't have enough time to get stuff done.

LEX FUGIT-DETROIT MAYOR/RECORDERS COURT JUDGE CHARLES E. BOWLES

I was Christmas shopping this week at the Town Peddler Craft and Antique Mall in Livonia, hoping for inspiration.  I did come across the election ad for Charles Bowles, and was inspired-to write this post.  

No one on my list will be getting this item, to their collective relief, I'm sure.  I was tempted to gift this to myself, but I still have more items from my former office walls than I have space for in my home "legal suite".  And as my wife is a bit of a minimalist with regard to wall hangings (especially when chosen by me), there was little hope that this would be allowed in any other room (bathrooms included) at Chateau Butler.  Sadly, I will not be adding Mayor Bowles to my collection.

But, Charles' colorful career does deserve mention here.

From the Detroit Historical Society article:

Detroit mayor Charles Bowles was born in Yale, Michigan on March 24, 1884. He graduated from what is now known as Ferris State University in 1904, received a law degree from the University of Michigan in 1908, and was admitted to the bar the following year.

In 1925, Bowles ran for mayor of Detroit following the resignation of Frank E. Doremus. While he was eliminated in the primary election, Bowles continued as a write-in candidate and nearly won. After losing the election, he became the judge on the recorder’s court. He was re-elected in this position, but resigned in 1929 to run for mayor once more. Bowles defeated John C. Lodge (of expressway fame, ed.) in the primary election and John W. Smith in the general election and was sworn in as Detroit’s 58th mayor in 1930. The previous decade had seen increased racial tension and the resurfacing of the Ku Klux Klan, who supported Bowles and likely pushed him to victory.

After just six months in office, Bowles was recalled after he fired the police commissioner. Detroit citizens accused him of “tolerating lawlessness.” In the subsequent election, he lost to Frank Murphy. Following his defeat, Bowles returned to the practice of law and made several unsuccessful bids for seats in the state legislature and Congress. He died July 30, 1957 and is buried in Evergreen Cemetery in Detroit.

The Wikipedia entry for Mr. Bowles was attached to the back of the frame, and includes this statement, regarding Bowles first run at the mayor's job, omitted from the Historical Society piece:  "He was openly supported by the Ku Klux Klan."

In fact, Mr. Bowles was featured in this undated article on the Crime Capsule site: "Charles Bowles, Detroit's Worst Mayor Ever".

That title is to be questioned, as in a 2014 article in the Detroit Free Press, "Meet the 5 worst Mayors in Detroit History", Charles is rated a mere 3rd, behind Kwame Kilpatrick and Richard Reading (who earned the unfortunate nickname "Little Dick").  To be fair, Mr. Bowles was merely recalled, while Kwame and Little Dick were sent to prison for mayoral hijinks.

One the credit side, I am a fan of old-time radio, and Charles Bowles did deliver the first political speech on WWJ's airwaves, on July 12, 1930.  Probably not enough to even the scales of his legacy, I suppose.

A LEX FUGIT QUANDARY

            I started the www.LexFugit.com website a couple of years ago, as a place to preserve some of the more interesting tales of practicing law in the Michigan courts.         

            The site’s motto:  Barba Crescit, Caput Nescit-The Beard Grows, but the Head Does Not Grow Wiser (a real Latin adage, by the way), was meant to convey that this was to be a comparatively light-hearted, self-effacing collection of seasoned practitioners’ experiences.

            I never expected there would be an issue getting lawyers to talk about themselves.  Social media is full of smiling lawyers stating that they are “humbled and honored” to be recognized as a super/best/extra most bestest attorneys.  On these same forums, lawyers have no difficulty congratulating themselves on a job well done, if they don’t mind saying so themselves-repeatedly.

            I figured, all I had to do was let attorneys know that I was looking for their stories, and they would send them along.  That hasn’t happened to any satisfying degree.  I am surprised.  I know that lawyers basically get paid for their time, and time taken writing down war stories is time spent not making money.  But, there is voice recognition features on our phones and word processing apps.  This doesn’t take long.

            Here are some of my recent experiences.  One of the great stories on the site:  Sy Orlowski’s Most Impotent Case, was related to me by the venerable Dan Makarski, who asked that I “ghost” the story for him.  The piece will appear in an upcoming issue of Detroit Lawyer Magazine.

            4 or so months ago, I was sitting, remotely, with attorney Gary Krochmal on a case evaluation panel in Wayne County.  As usual, our cases were overwhelmingly No-Fault claims.  During one of the breaks, he related a story of an ICLE seminar he attended in 1972, covering the brand new, Michigan No Fault Act.  The presenters, including Shel Miller, told the audience that they should get into another area of practice as there would be no more auto cases.  I think all would agree, this was a story we’d love to hear.  Over a couple of months, I asked Gary a half dozen times if he’d write the story.  He never outright refused, but after a few weak excuses (“I have to clear this with Shel”), he stopped replying to me. I’ll never get that story.  Maybe I’ll contact Shel.

            So, I have had to pester folks for articles, which I don’t mind doing.  Lawyers generally take the path of least resistance when there is real paying work to be done.  So, it is understandably easy to do nothing when nothing is really required.

            I soldier on.

            It was suggested that the members of the State Bar of Michigan’s Senior Lawyer Section might be a source of stories.  I joined the section and signed up for the listserv.  I intended to post a request for stories to the members of the section.  Thank God I didn’t. The Senior Section listserv was another world.  Whereas I had trouble getting any lawyer to write down his/her “stories”, the members of the listserv could not be stopped.  The same group of 5-6 lawyers posted both long and often.  The number of posts were exponentially higher than the combined posts of all the other SBM sections to which I belonged-like ADR and Negligence.

            I quickly learned that all content is not good content.  The Senior Section listserv, as of April and May of 2021, contained the following discussions:

• Donald Trump had won the Presidential election of 2020, though by what margin of popular and/or Electoral College vote was never so much as suggested;
• George Floyd had actually killed himself, not once, but twice;
• ”As lawyers we know that proof of prior bad acts may be used to prove a current bad act.” Because the Chinese are Stalinists and Stalin was a murderous dictator, this is proof that the Chinese are responsible for the Corona Virus- ironically referred to as a “scamdemic”.

           Daily posts, longer than this article, were the norm among this happy band.

RECENT DETROIT LAWYER ARTICLES-PART 2

Following up on the previous post, the Detroit Bar Association also ran two articles written by me in its most recent August 2021 issue of the Detroit Lawyer.  The on line version of the magazine can be found here, and may be easier to read.

LEX FUGIT-NICK SHAHEEN, pages 14-15.  A story about the late, great Wayne County Circuit Court Assignment Clerk.

 

COVID RETIREE, page 19

RECENT DETROIT LAWYER ARTICLES-PART 1

The Detroit Bar Association has been gracious enough to run several articles/reviews I have written in the latest two issues of its magazine, Detroit Lawyer.  I have included images of the articles and links to the magazine, which might make reading easier.

From the May, 2021 issue, found here:

Book Review, The Witch of Delray, pages 14-15

Lex Fugit?, page 18

THE THRILL OF THE GRASS

 

Shoeless Joe: Getting thrown out of baseball was like having part of me amputated. I've heard that old men wake up and scratch itchy legs that have been dust for over fifty years. That was me. I'd wake up at night with the smell of the ballpark in my nose, the cool of the grass on my feet... The thrill of the grass.

W.P. Kinsella-Shoeless Joe

Tuesday, September 7, 2021.  Historically one of the 2 days each year, the other being the first Monday in January, when the switch gets turned on the business world, the various school districts and the legal system.

Things are a bit different for me this year.  My kids have graduated from school.  But, for nearly 40 years, I would have spent this week at various motion calls, settlement conferences, depositions, case evaluations, facilitations and other such fun and frolic outside my office.  None of that this year. Granted, I did retire from my active litigation practice earlier this year, but that was, in no small part, due to the change in the definition of “active”, in the continuing COVID 19 era.  True, I did a facilitation, and sat as a Case Evaluator last week, but never left the comfort of my home office, a mere five steps from the temptations of my kitchen. Things went well. Not very challenging, not very exciting, but fine.  And, I was able to catch up on both American and European football, from the close-captioned enabled TV in the corner of the room.

Convenient?  You bet.  But, long ago I learned that the legal system of the state of Michigan was neither ordered for, or concerned with the convenience of attorney Michael J. Butler.  For the most part, that has been a good thing. 

To the extent that I have become an effective advocate at all (opinions differ), it has been soley through experience gained during years of adversarial proceedings, conducted in open court/deposition rooms, in person, in the physical presence of judges and other lawyers. 

I entered law school with an intense fear of public speaking.  The phobia sprang, I think, from a rather unfortunate incident in 6^th grade, when during an English class presentation, my partner and I, for reasons still unknown, became convulsed with uncontrollable laughter.  While our classmates were amused, our teacher, one of the less forgiving Sisters of the Order of the Institute of the Blessed Virgin Mary, was not. 

The fear followed me for many of my school years.

Coupled with the entirely normal fear of making a public fool of oneself, I was a perfect candidate for membership in the guild which prided itself on adversarial advocacy.

But, you get thrown in the deep end of the pool, sometimes chained to an anvil, often enough, you learn to think on your feet, react, respond and innovate on the fly.   You prepare better, you think more clearly, you anticipate the arguments of the other side, you look you adversary (sometimes the judge) in the eye.   You gain the skill to, paraphrasing Churchill “tell someone to go to hell in such a way that they look forward to the trip”.  You watch witnesses, and learn what pushes their buttons, and you push them when necessary.

I don’t think you learn this from behind your computer screen, sitting at your kitchen table, the family dog at your feet, dressed in cargo shorts and sandals (you, not the dog), with the judge a tile, no bigger than your own, on the Zoom display.