LEX FUGIT

VACATION COMMUNICATION

Though I am retired from full time litigation practice, as the summer of 2022 enters the final week before Labor Day, I was caused to think of summer vacations past.

It started during a recent extended telephone mediation. Things had stalled. To move things along, I sent out a 2-day notice for a general conference call.  The afternoon before the conference I received an email from a previously non-communicative lawyer, stating he was on a family vacation "with little or no workable cell service or internet. I get internet in the am when we drive into town for coffee, etc."   Thus, he had created plausible deniability if he didn't respond to the conference call (he didn't), and if he didn't respond to the continuing, and reasonable requests for documents supporting his case.  Bad reception.  We had been warned.

Pure BS, of course. His firm is probably the most tech savvy in the state.  I wouldn't be surprised if they had a dedicated satellite link.  I'm sure the firm provided him with any number of methods to connect.  This isn't 1995.  And I can't think of any family whose children would survive being deprived of social media for 5 minutes.

On another level, I can sympathize.  Assuming the lawyer was on vacation with the family, he owes it to them (and himself) to turn off work to the extent he can.  Despite what we say on LinkedIn, we should be working to live, and not living to work.

Firms, clients, and courts expect attorneys to be available 24/7.  We were probably at that point before the COVID/Zoom era.  Now, you can go from the shower to a court appearance in 5 minutes, from your home office, basement, bedroom or kitchen.  Phones and tablets turn attorneys into the obstetricians of the legal system-always on call.  It is hard to relax-ever.

I was not raised during the Depression, but I feel like it when I recall communication, or the lack thereof, while on vacation during my legal career.  

Shortly after we were married, my wife and I went to the same Lake Huron resort (I am sure the term was used ironically) cottages (the size of an average suburban family room) my family went to during my childhood.  No TV, no phone, no AC, a barely working stove, and water of the same consistency, if not quite the same color and clarity of a pint of Guinness.  The cell phone, the internet and the email had not been invented.  No way to call the office and no way for the office to contact me.  Well, there was one way.

The cottage was on the Lake Huron shore, just east of US23.  On the west side of US23 was the Sunset Motel, shown below, in a photo that could have been taken at any time from the date of its construction up to the present.

What is not shown in the photo, is the south end of the parking lot, with accompanying utility pole.  Attached to that pole was a pay phone.  So, what I did, was walk to US23, cross the northbound lanes, the grass median, then the southbound lanes and try to call my office, collect, from that utility pole pay phone. It was tough trying to carry on a conversation with semis whizzing by.  I felt like Eddie Albert in Green Acres.

Lawyer Cartoon July 29, 2022

Oddly enough, this was not one of those cartoons, where you can insert your own name, profession etc.

HOW TO RUN AN EFFECTIVE BUSINESS MEETING--NOT THE LINKEDIN EDITION

 

I have been a fan of Monty Python since the only place to see it was on PBS, 10:30pm Sunday nights.

Pity, I never could get any of my kids interested in the Pythons.  I am grateful that I was able to succeed with the Marx Brothers and Three Stooges.

This meeting of the Royal Society For Putting Things On Top Of Other Things, reminds me of a great many meetings I have attended, and I must admit, a few I have chaired.  Sadly, none of those ended with:  "Meeting adjourned forever."

A shame they didn't.  I agree with the delegate from the Staffordshire branch, the whole thing is a "bit silly".

MEDIATOR HIJINKS

"You can't play your friends like marks, Hooker."-Henry Gondorff, The Sting.

As a facilitator, I understand that the mediation process is not about me.  When attorneys hire me, it is based on a belief that I can help them and their clients resolve a case.

I am grateful for their consideration.  They could have hired someone else. My mediation "Hippocratic" Oath is:  Do No Harm to a Lawyer, especially in their relationship with their client.

i don't  use a case as an opportunity to wring as much money out of the parties as I can.

I've seen it done.

Back before mediation essentially became a part of every case, an attorney in Flint became an player in the facilitation game.  They had been appointed by the judge on one of my cases.  I did not know them.  This lawyer sent us their agreement, and procedures, which included 4 different levels of billing.  I don't remember all 4, but I remember a rate for their time, a rate for administrative work, and a rental rate for the conference room at his office!  As I had an office in Flint across the street, I notified them that I did not need to rent their room, and they could come across the street to my place.  I don't remember if there was a special rate for travel.  

That experience led me to explicitly state to my mediation clients that there would never be an administrative/file set up fees.  

I know mediators who charge minimum fees, whether the case is settled, dismissed or otherwise disposed of before the hearing.  

Others charge a fee if a case is adjourned, whatever the reason.  I have heard of adjournment fees of $1000.  One mediator, perhaps waxing nostalgic for their days as a judge, will assess the whole of the adjournment fee to the party they feel was responsible for the adjournment.  Talk about making attorney/client relations difficult.  

(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.