LEX FUGIT

SOCIAL (MEDIA) DISTANCING

I admit that I am possibly the dumbest guy on the internet.  I have yet to acquire the PhD from the University of my keyboard.  I restrain myself from uploading pictures of my food.  I don't post or respond on political/religious/sports issues.  I am extremely wary of all social media platforms.

I have now developed a personal "Top 3" list for social media posting, as follows:

3.  Look before you "share".  I know it is a burden, but take a few milliseconds to confirm that your source has some basis for what he/she/it is passing off as a cosmic truth.  If you discover that the author moderates a Marshall Applewhite fan page (see pic), has a homemade tinfoil hat store on Etsy, or is affiliated with any political party, you really should investigate further.

2.  Think twice, post once.  What's good enough for carpenters is good enough for me.  And, finally, the only real rule:

1.  Don't post at all (and especially, don't comment).

Most social media people don't follow any rules.  Posting, commenting, replying, insulting make them feel special or powerful in some way.  And no thought or effort is required, just a few keystrokes/thumbstrokes.  

I don't engage in social media "bun fights", no matter how stupid I consider the post.  Reading comments to any social media post makes you despair for the future of the human race.

Post (7:30am):  "I was inspired seeing the sun come up in the east this morning."

Comments (7:45am) (2,348):

Comment:  "You believe the sun rises in the east?  Libtard/Conservitard Idiot!

Comment:  "While you were watching the sun rise, I was working 3 jobs at the same time.  Privileged scum!!

Comment:  "Looking directly at the sun."  Typical (insert name of group you don't like here) a**hole".

Comment:   "I earned $5,000 a month working from home.  Click here and I'll show you how."

Comment:  "The Lions suck!!!"

Comment:  "This isn't a Lions forum, d***head, stay on point.!!!!

Comment:  "OK, the sun sucks, not to mention......, and your mother!!!!!"

ATTORNEYBUTLER.NET FOUL TIPS I-THE JUDGE TERTZAG ATTORNEY LETTER

Ed. Back in the late 00s to the mid 10s, I had a blog called www.attorneybutler.net.  I gave that site up in 2015, and the domain has been bought up by some sort of marketing enterprise.  So it goes. I recently discovered that I could recover the bare bones of some of my old posts, which can no longer be found on the net.  And some of those posts are relevant to the Lex Fugit project. I am not so arrogant as to call them "Greatest Hits".  I prefer "Foul Tips".  This first installment is from March of 2010, called the Tertzag Attorney Letter.

"At the recent Judge Kaye Tertzag Tribute and Award Dinner, keynote speaker Norm Tucker, talked about some of the research he did in preparation for his talk. He learned that Judge Tertzag would often write letters of appreciation to lawyers who had just completed trials in his courtroom. Certainly a very courteous and humble gesture for a judge, and a very unique one, in my experience. However, it was an action totally in keeping with Kaye Tertzag's character.

Well, yesterday, Mark Grayell, an attorney in my office, brought just such a letter sent to him by Judge Tertzag after a trial in 2003. With Mark's gracious permission, it is presented below:

Be prompt. Be prepared. Be polite."

GUEST POSTER-MARTY FEALK

Ed.  Marty and I go way back. We first met when he was a defense attorney and I was a plaintiff lawyer.  Later, we  worked together at Bernstein & Bernstein (not Sam).  I have referred to Marty in an earlier post on this site:  Aphorisms of Aging Attorneys Part I .  I first met Marty at a dep of a wrongful death claimant (the son of the deceased).  Lots of lawyers.  Marty did have the guts to ask the witness, a man with several felony convictions, if he was carrying a gun under the full length trench coat he declined to remove during his testimony.  Marty's a good man and a fine attorney.  

How I Won My First Motion As an Attorney

My first job as an attorney was in 1978 at the firm of Charfoos & Charfoos. After my first week on the job I was assigned my first motion to cover in Circuit Court. An in-house attorney at AAA filed a motion to hold one of our senior litigation attorneys, Ron Gilbert, in contempt of court.

This was not good, I thought. My first motion and I have to defend one of the senior attorneys? I don't remember the precise details of the motion, but it had something to do with Ron not liking a ruling in one of his cases, filing a motion on the issue, losing, filing a motion for reconsideration, losing, and filing again to bring the matter to the chief judge. I don't know if he won or lost that or if it was still pending. The motion to hold him in contempt alleged that he was "judge shopping."

Among defense attorneys Ron Gilbert was not a popular guy. He was a kind of nettle always jabbing, poking, and striking at them. Where the Code of Professional Responsibility imposes a duty to represent a client zealously within the bounds of the law, Ron took the zealously part as almost a Divine Commandment.

I am not sure even today what "judge shopping" is, but I'm pretty sure it has something to do with gaming the system to try to get a favorable judge. I think, though, that to be improper, there has to be some rules violation. I also don't recall that I was given any specific instructions on how to approach this or what to say, other than being told to go take care of this motion. I don't even remember today what I planned to say.

Nonetheless, we appeared before Judge William J. Giovan, about whom, at the time, I knew nothing. The AAA attorney argued his motion in a manner that sounded more like a character assassination than anything else. When he finished, it was my turn. I was thinking something on the order of hard-working attorney trying to do the best for his client, etc. etc. But the judge had something to say first to the AAA attorney. He turned and looked at him quizzically, apropos for a philosophy major. He said, this with appropriate quizzical intonation, "You want me (long pause) to hold an attorney in contempt of court (longer pause) for filing --- a MOTION ???"

He didn't give the moving counsel time to answer and simply said, "DENIED!"

The motion was over and I hadn't said a word. A masterpiece of argumentation.

I immediately put into practice one of the first things I had learned in my first week as a lawyer: When you win a motion, get out of the courtroom as fast as you can, lest the judge change his mind.

I returned to the office, went to Ron Gilbert and told him, “Ron, it was a tough fight, I had to do a lot of convincing but I got you off on this one.” He looked at me and scowled. But that’s what he always did.

ANOTHER CROSSOVER POST

In addition to this blog about the Metro Detroit legal scene, I have a blog covering the history of Catholic education in Detroit.  That blog is not really active since I started a Facebook group covering the same subject matter.  That group topped 11,000 members last week.

As both projects are largely local and historical, there has been some crossover posting to both groups.  Today's post is one of those.

In the process of making a home office out of my home storage locker, I have had occasion to go through the archives, including some real vintage stuff.

I am a graduate of Detroit Catholic Central, and our son graduated from CC in 2002.  When he entered as a freshman he was given a booklet entitled "Catholic Central-Simply the Best".  Dated Fall, 1997, it covers a period of time when the school was still in Redford. 

I will probably scan the whole thing for the Facebook group, but for this post, I will highlight 2 students who went on to become lawyers.

Paul Cusick, was a sophomore in February, 1997 when he traveled to Ireland to become the first American male to finish first in the All-Ireland Dance Championship.  Paul was already well known in my family as my daughter, now a veterinarian, was beginning her Irish dance career as a second grader at St. Mike's in Livonia.

Paul is now a Wayne County Circuit Court judge in the criminal division, and a member of the CC Shamrock Bar committee.

Marc McDonald is also featured.  Marc was a member of the class of 1997, and was winner of the prestigious Fr. James Whelan award.  He was an All-State basketball player as shown.  Back in the fall of 1997, Marc thought seriously of becoming a priest.  The priesthood's loss was the legal profession's gain.  Marc is a partner with the Troy firm of Novara Tesija & Catenacci PLLC, doing defense litigation.  When I first met Marc we worked on opposite sides of the "v".  I made the transition to the defense side in 2015.

It is a quite a coincidence that Paul, Marc and I are perhaps the only lawyers who look the same now as they did in 1997.

LEX FUGIT HOME OFFICE EDITION 3-THE FOUR HORSEMEN OF PROCRASTINATION

I couldn't get share Mr. Rosen's cartoon from Instagram the way I wanted, so here is a link to his page 

The home office schedule is more of a "flex time" arrangement now.

 

WANING POWERS OF LEGAL ANALYSIS I-THE DENTAL FLOSS DILEMMA

I have been around the "law game" for some time, and I used to think that my experience helped to develop my powers of analysis.

I think I may have "jumped the shark", and those capabilities may be on the decline.

I have passed through countless metal detectors in countless Michigan courts and public buildings since 9/11.  I have had to take off my belt before entering the Oakland County Building in Pontiac on many occasions.  Wayne County Circuit has a long, though apparently not complete list of items which cannot be brought into the courthouse.  The list, taken from the Court's website on May 3, 2020, can be found here.

One of the prohibited items is dental floss.  See extract from the list, below.

Now here is my problem.  If the state can prohibit me from bringing dental floss into the CCB (City-County Building, oldspeak for CAYMC), how does it not prevent me from showing up in Michigan legislature's visitors' gallery with a fully loaded semi-automatic weapon, as shown in the photo, above, taken at last week's event in Lansing?

I am sure that I will be told that our Constitution protects the right to bear arms, and there is no corresponding right to protect one's gums from gingivitis and periodontitis. Somehow I can show up at the Michigan Senate with a semi-automatic rifle, but I dare not try to bring my semi-automatic toothbrush to Friday motion call in Detroit. (Even though it is not on the list, the prohibition is certainly implied on the website).

However, while I'm at it, the Wayne County Circuit Court list does prohibit guns, replicas of guns, and ammunition as an additional, separate prohibited item.  I don't get it.  Somebody must be wrong?

I have a Zoom pretrial tomorrow, which I will be handling from the comfort of my home office, my faithful dog at my side.  Even 200 miles from the judge, I think I would be told not to wear the tank top shown below, despite its respectful depiction of a sitting US Supreme Court justice and without regard to my Constitutional right to bare arms.

Maybe in the future, I'll restrict myself to simpler matters, like the tiered benefit options under the new Michigan No-Fault Act. Or the Rule in Shelley's Case.

SELF PROMOTION APOCALYPSE* I-LINKEDIN

*The first in a series of posts about a distressing trend in business generally, and the "legal game" specifically.

I am "on" LinkedIn, but I really have very little idea about how it works.

I am a lawyer of pretty extensive experience, and some accomplishment.  I consider myself rather self-effacing, having much to be self-effacing about.

While cruising around the LinkedIn site, I have learned:

1.  Everyone (excluding me) is a genius;
2.  No attorney on LinkedIn (excluding me) has ever lost a trial/motion/status conference;
3.  LinkedIn attorneys (excluding me) are constantly showered with myriad awards and honors;  though,
4.  The threshold of achievement does not appear terribly high.(An association I belong to posted an effusive thank you to someone who had served on the golf outing committee.  The   picture accompanying the post was so large clicking on it actually made it smaller);
5.  Notwithstanding items 1,2 and 3, modesty seems to reign supreme on LinkedIn:  Members constantly post about their honors bestowed, stating how humbled they are by their proclaimed achievements. I tend to agree with the author Terry Pratchett, who wrote “Modesty is only arrogance by stealth.” 

One of my recent favorites involves a recent trial victory in Wayne County.  Now, I still think a jury trial win is a pretty big deal.  Though, truth be told, very often it is the "if" and not the "how much" cases that get tried.  In the present case, a team of 2 defense attorneys obtained a "No Cause" on a premises liability case involving a fall at a casino.  

I have litigated premises liability cases from both sides of the "v", many to verdict.  And there is no doubt that Michigan premises liability law has been pretty defense-friendly for 25 years.  Many plaintiff lawyers don't even take these cases any more.  But, some will still take a flyer.

So, while getting a verdict is still getting a verdict (you can quote me on that), a premises No Cause is not exactly winning Marbury v Madison.

Therefore, I winced a bit looking at the graphic(shown below) included with the LinkedIn announcement: What a win!

 

Yike. By the way, that's a raised fist in front of the rising sun, not the Loch Ness monster looking for an early morning nosh.

Get some perspective.   You did not steal the secret of fire from the gods and give it to mortal man.  You beat a guy who lost at your crap table and was now tossing the dice with your jury (a theme that featured prominently in opening and closing, I'm sure).

That picture did remind me of something.  Took a while and then it hit me.  See below.

A win is nice, for sure.  But act like you've been there before.

LinkedIn award and victory proclamations have become about as meaningful as Facebook posts showing what the page owner made for dinner. 

When everyone always "wins", and everyone is "honored" all the time, what is really special any more?

As the great W. S. Gilbert once wrote, "When everybody's somebody, then no one's anybody."

 

 

LEX FUGIT-HOME OFFICE EDITION 2: COURT HEARINGS FROM HOME

Since the shutdown, I have participated in a few Zoom conferences and mediations (including one today), and I will appear at my first Zoom deposition, allegedly, next Monday.

I have participated in these proceedings from my "home office", a room that has seen many uses, not law business related, over the years, including vintage clothing storage.  Well, the clothing wasn't quite vintage when first stored there. Loyal dog asleep at my side, smooth jazz courtesy of Alexa in the background,  aquarium to my left,  large cup of hazelnut coffee to my right, and so many tributes to my greatness (as a Daddy) that the average LinkedIn member jealous, my workspace is a very relaxing, cozy and supportive environment.

In such an environment, it would seem odd to put on a coat and/or a tie, for a Zoom proceeding.  I do wear a dress shirt, and pants--not necessarily dress.  

Now, while judges have been on line for the judicial conferences I have "Zoomed" in on, I have yet to have a contested, on the record, proceeding with an "on the job" judge ready to rule  on my case.  I might feel compelled to wear a suit for such a proceeding, even though I'd feel odd putting on a suit to "attend" a hearing where I am sitting 7 steps from my refrigerator.

But, until I was instructed otherwise, I'd probably still don the old frock coat and breeches for His or Her Honor.

Well, apparently, some attorneys in Florida have not felt similarly compelled.  

Judge Dennis Bailey, who works at the Broward Circuit Court, admonished the lazy lawyers in a letter published by the Weston Bar Association earlier this month.  The letter states, in part:

"It is remarkable how many ATTORNEYS appear inappropriately on camera. We've seen many lawyers in casual shirts and blouses, with no concern for ill-grooming, in bedrooms with the master bed in the background, etc. One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers. And putting on a beach cover-up won't cover up you're poolside in a bathing suit. So, please, if you don't mind, let's treat court hearings as court hearings, whether Zooming or not."

"Let's treat court hearings as court hearings".  Eloquence worthy of an appointment to an appeals court, you'll agree.

So, suit and tie for formal appearances it will be, but the rebel in me thinks I'll still try to wear my lucky bunny slippers for the truly big hearings.

 

 

TOUCHE'--JAMES THURBER

 

Though not about the practice of law, this is my favorite legal cartoon.  

It shows the deft, surgical, understated approach to litigation I have witnessed countless time in my career.

You know the type:  "Were you lying then or are you lying now?"  "Judge, I think the court must award costs and attorney fees in this matter."  "I know the court has ruled, but....but.....but"   "I don't normally bring motions for more specific answers to a fifth set of interrogatories, but I am compelled in this case to....."  "Let the record reflect that opposing counsel is rolling his eyes."

LEX FUGIT-AFTER THE SHUTDOWN IS OVER

 

On this blog I have reminisced-maybe that's the wrong word, as it is indicative of a certain measure of affection.  I don't look back fondly at all my experiences in the legal game.

But as always, I digress.  Many of today's young Detroit area attorneys won't remember the days of judges in the Lafayette Building (or the Lafayette Building at all, for that matter), judges in the Old County Building (which was actually occupied at one time), catalog cases, pay phones, and premises liability claims.  But they will remember the cattle call of Friday morning motion call in Wayne County, as recently as March of 2020.  Those days may be gone, or will at least be fundamentally changed, when the COVID 19 shutdown ends.

While I had the Zoom app on my iPad before March 24, 2020, I used it mainly for continuing legal education  webinars.  Zoom is now the name on all Michigan's legal lips.

Mediations, settlement conferences, depositions, and some motions are now being done using Zoom.  I have been on a video conference call with 15 participants since the shutdown, and it has worked pretty well.

And when all parties are notified to log in to the proceeding at one time, this can be a great tool.

But, what happens when you have 17 or so judges, each with 40 or so motions on a Friday docket, all scheduled to go at 9am?  Now that may not work so well.

Will or can we go back to the old system, especially when there will be a backlog of a month or more of unheard motions?

Probably not.  How will you maintain social distance in places like the 3-5 elevators that may be in service at an given time, accessing the courtrooms?  Those elevators are packed every Friday morning.  The photo above shows a crowded elevator, but it doesn't do the CAYMC justice, no pun intended.  The picture below more accurately depicts conditions on Friday mornings.

The elevators are crammed to bursting with humanity when they leave the first floor, but according to Newton's Fourth Law of Physics, for every person that gets off on an upper floor, 2 more are able to get on.

So, how do we deal with this?  My guess is that local court rules will change so that oral argument of motions will no longer be automatic.  Motions may be decided on the pleadings as a matter of course, with oral argument something that can be granted upon request of the parties or the court.

And what happens to the attorney who doesn't file a timely (or any) answer to a motion, but shows up at the hearing trusting to luck to avoid or temper the worst aspects of a probable adverse ruling.  Seat of your pants flying will become more hazardous.

I think it is pretty clear that courtroom motion argument practice (basically unchanged for generations) may be a thing of the past.  

So, attorneys with P numbers in the high 70s and low 80s, welcome to Lex Fugit.