LEX FUGIT

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.

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.  

GEORGE S. KAUFMAN (1889-1961) ON LEGAL BILLING

 

 

George S. Kaufman should be familiar to most, though he died 60 years ago.

He was a playwright, theatrical director, producer, humorist and drama critic.  He won 2 Pulitzer prizes:  for the musical Of Thee I Sing and the comedy You Can't Take It With You.  He wrote several musicals for the Marx Brother, The Cocoanuts, and Animal Crackers. (very important), and was a member of the Algonquin Round Table (also very important).

He was a great wit, while trying to locate one of my favorite Kaufman quotes, about getting something for nothing (a great quote for another time), I came across the gem, shown above, about lawyers.  The best bit is the last:

"You heard about the man who go a bill from his lawyer which said, 'For crossing the street to speak to you and discovering it was not you, twelve dollars.'"

I don't know the date of this quote, but Kaufman was writing Broadway plays a hundred years ago, and maybe 12 bucks was a big deal back then.

Before researching the prevailing hourly rates for New York lawyers in 1921, I got to thinking.  I was an insurance defense attorney for 6 years, and there were times when twelve dollars seemed a big deal to my carrier's billing review company.

As an example, let me take a situation like that described in Kaufman's quote, but substitute "opposing counsel" for client and assume that there was no mistaken identity, and that we actually met, on the streets of Downtown Detroit (remember when?) and discussed a current case.

Immediately upon my return to the office (possibly), I would have entered my time on our billing program. For simplicity's sake, I'll omit the tags and activity codes, and would bill .3 hours, 18 minutes, with the following description:

"Met with plaintiff's counsel in Detroit, and discussed the status of various outstanding discovery requests.  Counsel indicated that the requested documents, and answers had been received in rough form from his client, and he had to review them and "polish them up".  He would get them to me hopefully within 10 days.  Also discussed scheduling the depositions of his people.  One was a former employee over whom he had no control, but he would like to try to arrange the deposition informally, without needing a subpoena.  He'd let me know, again in 10 days."

In the fullness of time that entry, along with others was submitted to the client through its bill review company.  Let's make up a name for the company, totally at random.  Let's call it "NadirEdge-EvilHex".  I am sure we would have called it "Evil" for short.

WORDS OF WISDOM FROM MICHIGAN'S MASTER/SENIOR LAWYERS

 

Back in 2017 the State Bar of Michigan's Master Lawyers Section (for some reason now "rebranded" as the Senior Lawyers Section), published a 23 page book entitled "Words of Wisdom".  A copy can be found here.

It is certainly different than the LinkedIn equivalent of professional advice.  First and foremost, none of the submissions are attributed to anyone.  Certainly a violation of LinkedIn Rule No. 1--take credit for everything.  Come to think of it, the roughly 125 tips contained in the book would provide the young "Advice For Young Associates" twit on LinkedIn with material to ascribe to appropriate for and attribute to  himself, for a week.

Some of the advice may be criticized as trite bromides, scarcely necessary to repeat.  But, based on my observation of the current state of the practice, those bromides, though often prescribed, have not been taken in therapeutic doses by the litigating community.  For instance:

"The basics still remain the same: Be prepared, aware, ethical, and energetic, and you can succeed even though the profession has changed."

Adequate case preparation is still a challenge, apparently.  And, civility and ethics may be difficult to maintain where the litigation arena is not the courtroom but the computer screen in a home office, basement, kitchen or bedroom.  And, to be fair, it is hard to remember that you follow in the footsteps of Brandeis, Frankfurter and Bader Ginsburg, when you  practice with your own footsteps encased in bunny slippers, worn under pajama bottoms.

I did not contribute to the book.  So, let me take care of that now:

"Eat a green thing daily". (However, avoid green meat, cheese or bread).

Ironically, the  value of Words of Wisdom is in stark contrast to the submissions to the current Senior Lawyers Section Listserv.  More about that in another post.

CORPORATE CAREER CAVALCADE-A CACOPHONY OF COCKAMAMIE CLAPTRAP

A few cartoons I have come across recently that business speak and culture into perspective.

1.  Corporate "Training".  I love the way Steve is smiling in the second panel-as he is about to get eaten.

Artist:  Ellis J. Rosen

2.  Lemonade "Solutions".  We will cheerfully pay more for puffery:

Artist:  Pat Byrnes

3.  A variation on the classic. No one on his death bed said, "I wish I spent more time at the office."

Artist:  Kaamran Hafeez

4.  Meetings

Artist:  Also Kaamran Hafeez

5.  My favorite

Artist:  Frank Cotham

ADVICE FOR LITIGATORS EPISODE 1-JUST THE FACTS, MA'AM

A fairly new lawyer, licensed in August of 2015, has for several years, run a series of LinkedIn posts, called "Advice to Young Associates".  I am not kidding.  The advice contained therein is about as useful as the title is condescending. I am drawn to the young fellow's page primarily to read the latest cringe-worthy offering.

A direct quote:  "Young associates: Work life balance is important. So is staying late and showing up on the weekends."  End of post, by the way.  Great insight.  And better yet, advice you can use.  Note, he doesn't say "So is getting your work done."  No, it is more important to make it appear to your bosses that your work is your everything.  If he doesn't notice, you can remind him on your LinkedIn page.

I will today start an alternative series, not to appear on LinkedIn, called, simply, "Advice For Litigators".  I hope this will be real advice you can use in the courtroom or in Zoomworld.

Advice For Litigators-Episode 1:  Just the Facts, Ma'am

If confronted in court by a member of the Black Robe Brigade, and questioned as to the accuracy of your proffered version of the facts, respond as follows: *Firstly, you may need to mask your surprise that the judge was listening.

"Judge, my presentation was merely corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative."

Taken from William Schwenk Gilberts libretto to the 1885 comic opera "The Mikado", this tidbit is guaranteed to stop a judge in his/her tracks.  After a short pause, the judge may even thank you for your explanation, and you will be invited to continue, unconstrained by further interruption.

This advice is time and courtroom tested.  It works much better than my previously employed response, taken from Curly Howard's dialog in that taut, courtroom drama from 1936, "Disorder in the Court".

"C'mon, Judgie, be a pal."

Litigators of the world and the greater LinkedIn universe, I am honored and humbled to be of service.  You are welcome.

 

CASE EVALUATION MAY 7, 2021

No, the above image is not a screen grab from Panel 2 of Wayne County Case Evaluation of Friday, May 7, 2021.  Though, with a panel consisting of Sheldon Miller, Abe Barlaskar and yours truly, one could well think so.

May 7 was a bit of a throwback to the old days of in person case evaluation hearings.  Shel told us his story of challenging the constitutionality of original No-Fault Act in front of Judge Horace Gilmore in the Wayne County Circuit Court.  His co-counsel was Harry Philo.  

In addition, I was able to catch up with some local gossip, including the story, later confirmed, of a local Circuit Court judge leaving the bench, well before his/her term was to end.

It wasn't like sitting along with 3 other panels, with lunch across the street at the Detroit Club.  But, a nice reminder of former days when case evaluators were required to wear shoes.

Coincidentally, the picture above was the only image that came to my mind when someone said "Zoom", prior to March of 2020.