LEX FUGIT

(MOCK) TRIALS AND (TECHNICAL) TRIBULATIONS-PART 1

"Look at all my trials and tribulations
Sinking in a gentle pool of wine (I wish,ed.)
Don't disturb me now....."

CC's Plaintiff Attorney Team

The lines above are taken from "The Last Supper", a song from Jesus Christ Superstar.  An appropriate opening to this piece.  Firstly, Good Friday is this week.  Second, this first Rock Opera came out when I was in high school at Detroit Catholic Central.  And, most importantly, the lyrics are a spot on summary of my state after the twelve hour Mock Trial regional on February 26, 2022, wherein I coached that same Catholic Central high school's Mock Trial team.

The Michigan Mock Trial competition is sponsored each year by the very noble non-profit , The Michigan Center for Civic Education, and its director, Ellen Zwarensteyn.  They do a great job.  I first became involved with Mock Trial as a judge in 2012.  At that time, the Center for Civic Education had just lost its federal funding amid a round of other cutbacks.  The lost $250,000 yearly allocation has still not been completely replaced from other sources.  Knowing that history adds to my admiration for what the Center continues to do.

Briefly, Mock Trial is a competition, where high school students will try a case, based on a set of facts, pleadings, statements and exhibits released in November each year.  A team is a minimum of 6-3 lawyers and 3 witnesses.  Teams are required to litigate both sides of a case. No jury per se. Trials are scored by a panel of 3 judges.  The competition's first round is a regional of 3 trials in one day.  This is a highly abbreviated description.

Teams are coached by teachers and/or volunteer attorneys.  It is a big time commitment for a practicing lawyer.  I was an assistant coach back in 2015, but I had to drop out until this year because of my work schedule.  Coaching Mock Trial was near the top of my post litigation career list of things to do.  And, ironically, coaching the young CC lads would get me back into a courtroom, a rare occurrence since the March 2020 Covid court shutdown.  

Covid had hit the Mock Trial program as well.  The March 2020 shutdown order came in the middle of regional competition season, and the remainder of the regionals and state finals were cancelled.  The 2021 season was totally virtual.  There were many reasons for that arrangement, one of the foremost being that all the courthouses that hosted the trials continued to be closed to the public.  The 2022 season was to include live proceedings as an option, and that certainly would have been my preference.  The Omicron variant put an end to that.  

Although Catholic Central High School has a great tradition of attorney and judicial alumni, it has been historically difficult to get attorney coaches for the team.  It is a big commitment.  Last year the team was coached by a CC teacher, who had left at the end of the school year.  There had not been a lawyer coach in several years and during at least one of those years, CC did not field a team.

In 2021-22, I had more time.  And Bryan Kontry, a 2001 CC alum, took time from his full time practice and young family to help  coach the team.  We had 4 veterans.  We also had 6 freshmen.  We had no faculty moderator.  As the late, great Jack Benny said in similar circumstances:  Yipe!

 

(MOCK) TRIALS AND (TECHNICAL) TRIBULATIONS-PART 2

Feb. 26, 2 hours into trial-only 10 hours left to go.

Part one of this piece, can be found here.

First, a bit about the students of Detroit Catholic Central High School.  The number of class and extracurricular choices available to the boys is amazing.  There are 35 clubs listed in the Student Life section of the school website.  That number does not include the teams for 16 sports .  Classes begin at 8am, though there is something called Zero Hour, from 7am-8am.  Various clubs and activities meet an hour before classes start.  There is daily Mass at 7:20am.  When classes end at 2:45pm, some students leave right away, but a whole lot stay.  When our practices ended at 4:30, there were still a lot of students in the renovated library, now called the Learning Commons.

Mock Trial starts comparatively late in the school year, and many of my young men already had a full academic and extracurricular plate before our first meeting.  Practices were missed for such things as Finance Club (a big deal at school), the March for Life in Washington, meetings to approve Eagle Scout projects, sports team practices and personal training.  Many had other activities that did not start until after our practice was over.

Back in my early CC days, even though I was in the Honors Science program (hilarious considering my post-high school educational and career path), after school I was chiefly concerned with schlepping to the McNichols DSR stop, to see if I could catch a bus that went farther west than Grand River Ave.

Many CC alumni of my vintage, take pride in the memory of the blue collar, hardscrabble Outer Drive Shamrock student of yesteryear.  We did do more with less.  The world has changed a lot since then.  CC students have more assets and more options, but they take full advantage.  They have set some lofty goals for themselves.  One of my boys hopes to get a service academy appointment next year.  Another was notified of his acceptance to U of M, during our non-dress competition rehearsal.

CC once had the reputation as the "jock" school, with U of D High being the academic school.  We have a lot of sports teams and many of them do very well.  As I write this, I read that Catholic Central has just won its 11th consecutive academic team state championship.  In addition, CC is breaking ground on a $35M  STEM wing addition which will essentially double the size of the school.  For those of my generation who may not be familiar,STEM is an acronym for Science, Technology, Engineering and Mathematics.  

One final stereotype that I found was not supported by the evidence.  Some keyboard PhDs post that places like Catholic Central are more like English boys private schools than the hundreds of Catholic high schools that covered the city of Detroit in the 1950s and 60s.  Not based on my experience.   My future Eagle Scout and Wolverine works a part time job at Taco Bell.  When I was a teenager, my standards for jobs weren't high (dietary department porter, "warehouse rat" at Toys R Us to name a few), but even I drew the line at places like Taco Bell.  Another team member, who aspires to go to law school, works part time in the family convenience store.   Tuition is high at CC, but a very substantial percentage of families get some form of tuition assistance.

But, as always I digress.  Back to Mock Trial.

 

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