With over 25 years experience in the area of civil litigation, I now offer mediation services as a part of my practice. SCAO mediator training has been completed, and I am currently on the approved mediatior list in several Michigan Circuit Courts.
Having participated in many mediations, both as litigant and as mediator, I have come to understand the process and its benefits for all parties. I have always tried to earn the trust of all the attorneys with whom I have worked. This trust is, obviously, vital in the mediation process.
There will be no charge for the following services: phone conferences, scheduling, correspondence or administrative staff work. The only services charged are review of submissions before the hearing, and conducting the mediation.
ST. IVO OF KERMARTIN--PATRON SAINT OF THIS SITE
Born to a wealthy Breton noble family. From age 14 he studied civil and canon lawyer, philosophy, and theology in Paris and Orleans. Franciscan tertiary. Lawyer who practised in both civil and ecclesiastical courts, often defending the poor without charge, and ministering to them in prison while they awaited trial. Practised great personal ascetism, with frequent fasts, and wearing a hair shirt under his clothing. Fought the state over taxes and the rights of the Church. Incorruptible diocesan judge, refusing the bribes that were the order of the day, and working to settle claims out of court in order to save the litigants time and money. Noted preacher and arbitor, he built a hospital from his own funds, tended the poor in it, and gave away the harvests from his land to feed them.
SANCTUS IVO ERAT BRITO,
ADVOCATUS ET NON LATRO,
RES MIRANDA POPULO.
(ST. IVO CAME FROM THE LAND OF BEEF,
A LAWYER, HE, BUT NOT A THIEF;
A STRETCH ON POPULAR BELIEF.)
During this summer of DIY outside work, I have listened to my iPod a lot. I have several old Broadway musical scores I have purchased including one of my favorites of all time, Jerry Bock and Sheldon Harnick's, Fiorello!, based on the life of New York's Mayor Fiorello LaGuardia.
I like the score for its own sake, but the theme of a man working against a corrupt political machine offers many comparisons to today's political and legal climate.
I'd like to feature a few more songs from the show in the coming days. First, a song mis-named on the YouTube clip. The proper name is "On the Side of the Angels" and relates the activities at LaGuardia's small store front law office, where he represents life's downtrodden, men and women with big problems and little money.
I find this interesting on a couple of levels. First, in today's legal system, it is getting harder to find anyone working on the side of the angels. Sure, there are plenty of big businesses and insurance companies leaning on the little guy. But, looking at all the injury attorney ads, billboards, case solicitations and claim orchestrations, it is getting harder to find anyone occupying the moral high ground. More about that in future posts.
Secondly, the song reminds me of the late Kaye Tertzag, a store front lawyer before he became a Wayne County Circuit Court judge. Kaye Tertzag started his legal career working in a small store front law office where he practiced nights and weekends, after he finished his "day" job as a teacher at River Rouge High School.
Working on the side of the angels, indeed. I think we need to remember the examples of Chach and LaGuardia right now. Remember, and follow their lead.
And, Tom Bosley reminds me of Kaye Tertzag--a little. I am not sure members of the Tertzag family would agree.
The original title of the post was going to be "Happy 4th of July from the Butler Bunker", but today is the 5th. However, as I anticipate the celebratory fulminations will continue for at least 2 more nights, it is not too late convey holiday greetings.
After a festive July 4th filled with grass-cutting, weed-pulling, and mulch-spreading, we retired at about 9:30pm to our back yard patio for a little relaxation in the very pleasant summer evening weather. I put one of those compressed pulp fire-starter "logs" into our tin fire bowl (in other words, a Yuppie bonfire), and we sat back with a little wine (a wild Yuppie blowout). One of our daughters was home from clinical rotations and it would be a nice time to catch up--we thought.
Five minutes later, as darkness began to fall, there began a series of detonations that made me think that our street was the site of the preliminary rounds of the AK-47 Competition (Junior High Division) of the 2014 American Open Carry Convention.
Rosco, the family dog, nearly broke the back door down trying to get back in the house. He was later found in the basement, next to the portable dehumidifier trying to cover his ears with his front paws. He refused to move and remained there until this morning.
Those of us who remained on the patio soon found we could not hear each other speak. We decided to move inside after about 10 minutes we all moved inside. We were also concerned that some of the pyrotechnics, even in the hands of our well trained, highly intelligent neighbors, might come down on our heads.
Now, it wasn't always this way. About two years ago, our beloved Michigan Legislature was told that the state or somebody would make more money than it/they were currently making if the state loosened/eliminated restrictions on civilian purchase/use of fireworks. Not all controls were removed. Commercially made fragmentation grenades and IEDs are still forbidden--I think. But little else.
I think the new legislation tries to restrict use to a day or two either side of the actual holiday. Don't think that worked from the get-go. In 2012, the 4th of July was on a Wednesday. Fireworks were blown off in the neighborhood for 10 straight nights that year. Our dog had to be carried out of the house to do his business for another 10 days thereafter. We couldn't get him to go for a walk during that same period.
I really wonder about our legislature. Have someone tell them a certain idea is good for business and/or will increase state or private revenues, the idea generally becomes state law.
In addition to the fireworks, we have these great, state sanctioned pro-business, new/increased revenue sources:
Repeal of the motorcycle helmet law--increased tourism
Special Sunday 7am liquor licenses
Right to Work--remember the brief Pure Michigan add pushing this law
Casinos or casino applications for most municipal entites
My favorite, though, is the Michigan State Lottery. The state legalizes an activity that would be criminanl if engaged in by the job creating entrepreneurs of the private enterprise system. And they re-package and advertise that product in ways and with a frequency that would make a children's cereal manufacturer envious.
And all the profit goes to education. Over 13 billion dollars, in fact, since 1972. Feel like we've had 13 Bill of added value to the state education system since then? Me neither. Sadly, the Lottery money often is used to make up for cuts from other sources of state funding. In this 2007 Jackson Citizen Patriot article, it was noted that the state general fund contribution to education had been reduced from 377 Million to 35 Million since 2003. Well done, Michigan legislators.
If we have another recession like the one which started in 2008, I wonder what the legislature will legalize (and tax) next: prostitution, street drugs dog fighting? Who knows, they are pretty resourceful in Lansing.
So, as there are still two nights left in the unnofficial 4th of July explosive season, let me leave my neighbors with this wish: As you set off fireworks like you wer prepping Omaha beach for the D-Day landings, please don't blow your heads off. (Studid auto-complete---that wasn't supposed to read "don't"). While you may or may not lose your collective heads, it seems our legislature already has.
The friends and family of the Honorable Kaye Tertzag will host the Fifth Annual Tertzag Tribute Dinner on Thursday, February 27, 2014. Judge Tertzag passed away on February 4, 2009, having established a great legacy of integrity and service to the State of Michigan, as well as a great example of love and devotion to his family and legion of friends.
To preserve and honor his memory, the Fifth Annual Tertzag Tribute Dinner will be held at the Park Place Banquet Hall in Dearborn from 5:30 p.m. to 9:30 p.m. Park Place is located at the corner of Park and Outer Drive, just south of Michigan Avenue. Tickets are $40.00 and include dinner and an open bar.
The Tertzag Tribute Dinner Committee is pleased to announce that the 2014 recipient of the Purple Sport Coat Award is attorney Anthony S. Guerriero. Michigan Supreme Court Justice Bridget McCormack, last year’s recipient, will present the award. Guerriero and Judge Tertzag were dear friends for decades. Tony worked on the assembly line at Ford Motor Company Truck Plant while studying for his Bachelor’s Degree. He earned his Juris Doctor from Wayne State University Law School in 1979. He is married to Elizabeth and they are the proud parents of daughter Gina. He currently owns his own practice, Anthony S. Guerriero, Attorney at Law, in Allen Park.
Tony has served as a prosecutor, criminal defense attorney, civil litigator, mediator, arbitrator, receiver, magistrate, and judge. Tony has demonstrated a commitment to his community as an active member of the Dearborn Exchange Club, Amicus Club of Dearborn, the Dearborn Italian American Fraternal Club, and the Knights of Columbus. Guerriero spoke at Judge Tertzag’s memorial, and is honored to receive the award. Guerriero exemplifies Judge Tertzag's motto: Be Prompt. Be Prepared. Be Polite.
The committee is honoredto have Debbie Dingell as keynote speaker. Debbie is currently the President of D2 Strategies and the Chair of the Manufacturing Initiative, American Automotive Policy Council. She is an active civic and community leader in both Michigan and Washington, D.C. She recently completed a more than 30-year career at General Motors as a senior executive, where she was the President of the GM Foundation and headed public affairs. Ms. Dingell is also a national Democratic strategist, and a member of the Democratic National Committee. We are excited to hear her message.
The Committee will also make a special presentation to honor the late James L. Borin, who passed away on July 2, 2013.
Jim Borin was recognized, for more than a generation, as Michigan’s leading expert on the state’s No-Fault Law. In addition to writing many treatises and practice manuals on the subject, he served as a professor and lecturer at the University of Detroit Mercy’s law school, Thomas M. Cooley Law School, the Michigan Judicial Institute and Lawrence Technological University.
Jim worked with the Garan, Lucow Miller firm for nearly his entire legal career. Among many honors, he received the 2012 EarlCline Award for Excellence in Negligence Law from the State Bar of Michigan’s Negligence Section.
In a 2009 Michigan Lawyers Weekly article recognizing him as one of 2009’s “Leaders in the Law”, Jim commented on role of civility in the legal profession: “Am I practicing the Golden Rule and am I treating people the way I would want to be treated. It takes a long time to develop that type of mutual trust, and it does work both ways.” Members of the bench and bar would agree that Jim Borin followed the Golden Rule admirably during his distinguished career.
We will end the evening by continuing the tradition started by Kaye's daughter, Kara Tertzag Lividini--the Sambuca toast.
Attendees are encouraged to wear purple to the event. Those wearing purple will be entered into a drawing for a door prize.
Checks should be made payable to: Tertzag Tribute Dinner, LLC and sent to 412 Berwyn, Birmingham, MI 48009. Spouses and/or significant others are welcome. This event will sell out and space is limited, so please buy your tickets now. Please direct questions to Kara Tertzag Lividini at 313.645.9511 or firstname.lastname@example.org. Please feel free to send this message to anyone you think would be interested in attending the event. This is not a political fundraiser.
From the 2013 event: 2010 recipient Judge James Rashid, Michigan Supreme Court Justices David Viviano and Brian Zahra, 2013 recipient Michigan Supreme Court Justice Bridget McCormack and 2012 recipient Judge David Allen
I watched Double Indemnity tonight. Maybe this old Plaintiff lawyer is getting soft with his advancing years, but I love Edward G. Robinison as Pacific All Risk Insurance Company claims adjuster Barton Keyes.
Now, here's a guy with integrity. I bet he wouldn't send one of Pacific All Risk's claimants to Medical Evaluation Specialists.
Much has been written on this site about self proclaimed "Rule of Law Judges" in Michigan. These folks, by an large, have received their first judicial experience, not by election, but by virtue of appointment by former Michigan Governor John Engler (who reigned from 1991-2002).
These judges have created the label, "Rule of Law Judge" and applied it to themselves. They will state that their job is to apply the law as it is written, and not how they might want it to be. A great benefit of this alleged "philosophy" is that those who don't agree with a "Rule of Law Judge" can be condemned as rogues who make up law based on personal whim.
A great campaign tactic, a great catch phrase for bumper stickers and billboards.
In practice, "Rule of Law Judges" have made up more law in the last 25 years than their collective judicial predecessors did in the previous 100. If we need a label for these judges, I'd prefer "Creationist Judges".
The purpose of this post is not to rehash the entire "Rule of Law Judge" issue. It is, rather, to highlight a recent (bizarre) example pf a favorite "Rule of Law" tactic, the use of the dictionary as the basis of a legal ruling.
When faced with a law they don't like, "Rule of Law Judges" will refer to a dictionary of their choice to redefine a statutory or contract reference in a way that suits the "Rule of Law Judge's" preferred result. See:
Last month a local Circuit judge (an Engler appointee and a Tea Party endorsee in the last election) was faced with a motion wherein the parties were disputing the provisions of an insurance policy, specifically the meaning of a specific policy term. Plaintiff's interpretation favored coverage, the defendant's did not.
Rather than accept the law and cases cited by the Plaintiff, or the law and cases cited by the Defendant, the judge said both sides were wrong. The judge had found the correct definition of the disputed term on....wait for it.....WIKIPEDIA!!
Aided by the current availability of auto accidents reports on the Internet, an increasing number of personal injury lawyers, medical professionals and the surrogates of both have been imposing their services on MIchigan car crash victims.
Accident victims receive unsolicited calls from persons who say they are representatives of the victim's insurance company. These "representatives" direct victims to specific medical providers, often providing transportation services to these facilities. I know of one instance wherein an accident victim received a phone call, out of the blue, from someone who called herself a "case manager" indicating that injured woman would be picked up and taken to a clinic for an already scheduled MRI. This MRI had not been "prescribed" by any doctor who had examined or treated this lady. The prescribing doctor did not have a referral to examine this lady, treat her, or set up any testing. The prescribing doctor was, in fact, a retired chiropractor who had never seen, nor would ever see this lady. However, the MRI was just the beginning of an expensive course of treatment by facilities never sought out or chosen by the injured person-facilities that also directed the injured woman to an attorney with whom the facilities had a "relationship".
Our firm has had experience with solicitors (medical and legal) who have contacted our clients. These folks don't stop even when they are informed that the injured person already has an attorney. Some real examples-all from within the last 90 days:
Auto accident client receives cold call from a man who tells the client to treat for her injuries at a specific medical clinic in the Flint area. The poor woman, very confused, indicates in the course of conversation that she has a lawyer, naming our office. The caller stated that she shouldn't go with a firm just because it was big and advertised on TV. The caller made a common error, confusing the firm of Bernstein and Bernstein (opened in 1923) and the Sam Bernstein law office. B and B does not advertise on TV-never has.
To be honest, the caller's suggestion that our client change lawyers was comparitively restrained. Others have have been more direct, as will be related shortly.
Sadly, the name and phone number of the caller could not be traced. I called the clinic and employess disavowed knowledge of the caller and of patient solicitation. What a surprise. Subsequent inquiries indicated that the clinic was a major "player" in the patient solicitation/claim orchestration game.
July 1st, I get a call from a man, who indicates his mother was involved in a serious car accident and is in the hospital. The lady is a former client of our office. The son indicates that his mother would like to have someone come see her in the hospital. Our firm, seldom, if ever, does this, but we arrange for someone to go to the hospital on July 4. The client signs a retainer agreement.
The following week, other members of the firm and I talk to the client about her injuries, the accident, insurance coverage and other matters. We obtain a copy of the police report and a copy of the client's insurance declaration page-though the dec sheet is for a renewal of the policy on her car, rather than for the current coverage.
Strangely enough, on or about July 12, 11 days after the accident, the client tells a member of the firm that she doesn't think she wants to make a claim. She repeats that to me the next day. I tell the client that if she does not want to move forward to advise us in writing so we can have proof of her wishes for our file. I follow up with a letter. No response.
In the meantime, we have written to the client's insurance company to get an accurate listing of her coverages on the date of the accident, especially any uninsured motorist coverage. Again, strangely enough, about a week later, the insurance company's adjuster calls and says he has received two letters of representation, one from our firm and one from another firm I know to be a heavy advertiser and direct solicitor of injury victims. Two days later I receive a fax from the solicitor's office, in our client's handwriting, discharging the firm.
Next up, a person injured in a bicycle/auto accident calls our office and sets up an appointment. Later that day, he receives a call telling him that he is going to be picked up and taken to a medical facility for treatment. He asks if this call is coming from his lawyer's office. The caller says yes. The gentleman is taken for treatment at the clinic where he also meets the caller who has him signs papers retaining a hitherto undisclosed attorney's office. The man, now our client, keeps his appointment with us and discharges the attorney he has never seen or talked to.
Finally, and best of all, only last week an auto accident client of our receives a call from a senior partner of a law firm that heavily advertises. This attorney is advised by the client that she is represented by our office. The attorney tells her that he will get her twice as much money as our office will. She does not succumb to the solicitation.
I understand the practice of law is, among other things, a business. However, in the past, personal injury attorneys could at least state that they occupied the moral high ground, seeking justice and just compensation for the injured from the "anything for profit" corporations and insurance companies. That is no longer true.
Though the State Bar of Michigan has ethics rules that preclude direct contact with a person already represented by a lawyer,interference with that existing relationship is only one of many current abuses in the system of law and medicine in Michigan. The professions are not doing a good job of policing themselves. The likely result will be a legislative "fix" which will, as it always does, throw the baby out with the bathwater.
Sadly, we have come to a point where, in addition to shameless solictation, there are attorneys willing to violate existing attorney/client relationships (and the Code of Ethics), in the name of their own profit.
In the irony department, there are law firm commercials out there using William Shatner as the office's celebrity spokesman. Mr. Shatner,who portrayed Captain James T. Kirk on Star Trek, adhered to the Prime Directive of Star Fleet and the United Federation of Planets which was: Non-Interference. Sadly, I have come to expect a higher standard of conduct from a fictional TV character from the 60s than I expect from many licensed Michigan attorneys.
When I started this website several years ago, threats to civil justice in this state (Michigan) came mainly from big corporations and insurance companies. I would also toss in the self-styled "Rule of Law" judges who, while proclaiming to enforce the law as written and not as they would wish it to be, have easily created more new tort law than the Michigan legislature. That is why I believe these judges should be more accurately renamed the "Creationists" that they are.
But over the past few years several new and interesting elements have be introduced into the day to day practice of law in Michigan-all of them bad.
The really sad part is that the folks behind many (though not all) of the new abuses are people I had previously considered allies in the fight for civil justice for innocent injury victims.
Direct and indirect solicitation of clients by lawyers and/or their thinly disguised surrogates (in some case medical practitioners), is breathtaking in its audacity. Fraudulent representations made during these solicitations are the norm, not the exception. I am finishing a post on 3 recent experiences I have had with victim solicitation and attempts to interfere with my existing attorney-client relationship with the "solicitee". All happened within the last 30 days.
Orchestration of medical claims by attorneys and medical practitioners is now the rule rather than the exception. In one recent case, one of our attorneys was approached while that attorney was waiting to start a facilitation hearing. The man was the plaintiff in an on-going facilitation hearing in the same office. The plaintiff complained that he didn't like the job his current attorney was doing and he was considering changing lawyers. The plaintiff indicated that the doctors his current lawyer sent him to were paying him $1000 a month to treat with them. He would consider switching over to our firm if we would send him to doctors who would pay him $1500 a month. We had to disappoint him.
Litigation funding companies flood the internet and TV. Because the client is not obligated to repay the advances should the case be lost, courts have held that the interest rates these companies charge are not subject to state usury law limits. The rates charged are nothing short of obscene. A case I recently resolved through arbitration required repayment of cash advances which had accrued costs and interest giving the cash advance companies a rate of return of over 100% per year. While these advances are non-recourse, they are actually much less risky than the average unsecured consumer loan or credit card account.
Medical service providers have recently started hiring attorneys to collect their bills directly from an injured person's No-Fault insurer. There exists no contract between the provider and the insurance company. There is no statute directly authorizing such a suit or intervention in an on-going lawsuit brought by the injured party against his insurance company. Yet these claims/interventions are allowed. While the providers allege that their interests can only be adequately protected by an attorney hired specifically to protect their interests, the reality belies the claim. Providers' attorneys, as a rule, do nothing to help prove their clients' entitlement to payment beyond presenting a bill. All the "heavy lifting", all the real legal work is done by the injured party's lawyer, and the providers are happy to tag along and reap the benefits, often of their own ignorance. If "Rule of Law" judges are looking to curb judicial "creativity", they might well look at provider lawsuits. I bet they won't and I further bet that the Michigan legislature will not provide statutory authority, in the future, for the plethora of claims now flooding the court dockets. Provider suits were virtually unheard of 5 years ago (the No-Fault law has been around for over 40 years). Now every No-Fault claim has one or two.
I will be posting an article in the next week cataloging my ever-growing list of provider intervention horror stories. It is suppplemented weekly.
The current state of affairs reminds me of a bit of dialog from my favorite movie "The Sting". Paul Newman's character, Henry Gondorff, is asked by Robert Redford's character, Johnny Hooker:
"How many guys you conned
in your life, Henry?"
or three hundred I guess.Sometimes played two a
day when Iwas in Shea's mob. We had it down to a business.'Course Chicago was a
right town then. The fix was in. The dicks took their end without a
beef. All the Wall Street boys
wanted to make investments for us. Even had marks looking us up, thinkin'
they could beat the game.
Yeh, kid, it really stunk. No sense in bein' a grifter
if it's the same as bein' a citizen."
I'd agree, in the here and now in the Michigan justice system, it really stinks.