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.)
I keep a copy of this in my office. I look at it before I leave for court and before I write anything for publication. It is a wise policy not be become overly enamored of one's own wit, especially if one does not wear a black robe.
Living at the western end of I-96 construction project 2014 has required me to seek out a reliable alternate route to downtown Detroit since April. I've tried Telegraph to Schoolcraft (slow), Grand River to Evergreen (slower) and Grand River all the way downtown (slowest). After a couple months I discovered the route through the Brightmoor area of Detroit--5 Mile (Fenkell) then right on Lahser, which turns into Outer Drive about a half mile south and on to 96.
I grew up a mile and a half, as the crow flies, from Brightmoor, and it was a tough neighborhood even in the Olden Days of my youth. The old Irving Theater ("Good Pictures-Popular Prices") near Evergreen was torn down a few years ago, having remained vacant for a long time after its last use as an adult movie house. I can't remember a time, even as a kid, when St. Christine's church didn't operate a soup kitchen.
Some blight removal work has been going on. On a recent early morning trip I saw a group of young people painting a large red heart and the name "Brightmoor" on the side of a self-serve car wash. That said, there is still a awful lot of work to do. In fact, I think that car wash is out of business.
So, on the occasion of my first trip through the Lahser-Outer Drive intersection, I was very surprised to see the monument shown at left. After several passes, I was able to make out the silhouettes of four servicemen. I wasn't able to make out the inscription on the western side.
Thanks to the internet, I discovered that this is the Brightmoor World War II Memorial, unveiled in 1943, and depicting members of the Army, Navy, Marines and Army Air Corp (as the Air Force was called then).
The Detroit 1701 site has a picture of the inscription, a quote from Abraham Lincoln's Gettysburg Address:
I don't know who maintains this (if anyone), but the flag still flies over the Memorial.
This stretch of Detroit road has some nicely kept up homes, some vacant buildings, some burnt out buildings, and some empty lots. So, it is much like a lot of Detroit neighborhoods.
This diamond in the rough of Brightmoor, is a little sad, perhaps, but more of a sign of hope for me.
The Memorial honored those sons and daughters of Brightmoor and Detroit who met the challenge of a foreign war. Detroit has huge challenges to meet at home right now, and I hope the area and the city come back as I hope the soldiers of Brightmoor did.
The Red Mass A Rich History; A Contemporary Relevance
The Red Mass is an occasion for judges, attorneys, civic leaders, and law students of all faiths to pray together at the beginning of the new judicial term and ask the blessing of the Holy Spirit on the coming year’s work, so that in cooperation and mutual trust we may effectively achieve justice for all. Please join us as we celebrate the 102nd annual Red Mass Tuesday, September 23, 2014, 12:00 pm Ss. Peter & Paul Jesuit Church 629 East Jefferson Avenue, Detroit Guests are welcome
RENEWAL OF THE LAWYER’S OATH OF COMMITMENT The Honorable Michael F. Cavanagh, Justice of the Michigan Supreme Court
JUDGES: Please bring your robes and assemble in the atrium of the School of Law no later than 11:45 am for the procession to the church. RSVP to Asst. Dean Denise Hickey at (313) 596-0202 or email@example.com
PARKING: Reserved parking for judges and guests with handicapped parking stickers will be provided in the School’s Faculty Lot on Larned. Parking for other guests is available nearby with commercial lots and on-street metered parking.
LUNCH: A complimentary light luncheon will follow in the atrium of the School of Law.
CO-SPONSOR: The Catholic Lawyers Society is proud to co-sponsor this event with UDM School of Law.
I forgot to include this little story with my previous article about the beginning of the "Rule of Law" season.
In that post I indicated that Michigan Supreme Court Chief Justice Robert Young is the leading disciple of the "Rule of Law" v "Empathy" judge labeling system. According to him and his fellow disciples, "Rule of Law" judges follow the law as written, not as they might want it to be. They rule with the head, not with the heart, and their job is not to "do good". "Empathy" judges rule according to personal preferences, and without regard to the law. So the theory goes. The implication is the self-styled "Rule of Law" judges must always be right, and those who have differing opinions must be wrong, if not unethical.
Self-anointed "Rule of Law" judges are nearly always Republicans and those they condemn as "Empathy" judges are nearly always Democrats. "Rule of Law"-Conservative, "Empathy"- bleeding heart Liberals. So say the election ads.
I don't subscribe to the theory, though I understand its appeal for candidates, and it does sound good to voters.
The previous article looks at the "Rule of Law" side of the equation. This note looks at an incident involving a so called "Empathy" judge.
A defense attorney on the other side of one of my current cases related a very distressing, very recent experience with a former candidate for the Michigan Supreme Court, one who, in fact, had run against Justice Young. So, we have a very specific example of a self-annointed "Rule of Law" candidate running against a specificly labeled "Empathy" candidate.
The "Empathy" candidate remains a trial court judge in Michigan. My defense attorney friend's wife is going through a very tough time right now. In May of 2014 she was diagnosed with breast cancer. She had an operative procedure in June (which was unsuccessful), and was scheduled for a double lumpectomy this past July. The surgery date happened to fall on the date my friend had a case set for a bench trial with the "Empathy" judge. He filed a motion to adjourn the trial so he could be with his wife for the operation. He was only asking for a two to three week adjournment. The motion came on for hearing before the "Empathy" judge. The "Empathy" judge called the attorney to the bench for an off the recorder discussion. The "Empathy" judge said the attorney had been guilty of poor planning. The "Empathy" judge asked if the surgery could be set for another date. It couldn't. The "Empathy" judge denied the motion to adjourn.
Now there is an "Empathy" judge I would have reported to the Judicial Tenure Commission. The defense attorney did not (showing more restraint then I would have, in similar circumstances).
And how did the matter ultimately resolve? Well, I am told that the heartless insurance company paid more than it thought the case was really worth to allow the defense attorney to be with his wife on the date of her surgery. I salute the carrier and the attorney. By the way, his wife is going through chemotherapy right now, and the signs are hopeful. I always ask about her health when I talk to the lawyer. I wonder if the "Empathy" judge has done the same.
If this be "Empathy", let me take another look at "Disdain".
One might argue that in refusing to move the trial date specified in the court's scheduling order, the judge was exhibiting adherence to the "Rule of Law" like few other jurists have.*
"Empathy"? "Rule of Law"? When it comes to judicial labels, let me paraphrase the beer commercial's Most Interesting Man in the World: "Stay suspicious, my friend."
*I have little personal experience with the "Empathy" judge involved here. However, several years ago I did try a case for another attorney in our office, a case that was assigned to that "Empathy" judge. It was my first case with the judge. We were told to be prompt as we were the only case on the judge's docket that day. I arrived at 7:20 for an 8:00 trial call. The courtroom door was locked. At 7:45, a woman carrying a plastic covered white shirt on a hanger tried to open the courtroom door. This was a clear indication to me that the judge was going to start a criminal trial that morning (not ours), and that the shirt was for the defendant who, presumably. was in custody and didn't wanted to be tried wearing an orange jump suit. I was correct, as it turned out. Not only did that case go, but the courtroom was full of litigants and attorneys that morning. The "Empathy" judge never so much as talked to us. We were sent to a visiting judge's courtroom. The visiting judge told us to come back in five weeks. It's good to be a judge.
It has been but a short week after Michigan's two major political parties held their nominating conventions in advance of the the November state-wide elections.
Of special interest to me were the respective partys' nominations for three state Supreme Court seats. It has always fascinated me (by which I mean confused me utterly), that while Michigan Supreme Court seats are on the non-partisan portion of the ballot, all the major and most of the minor political parties nominate candidates for those offices. A party nomination for a non-partisan election exempts the nominated candidate from the requirement of going out and getting petition signatures to get on the non-partisan ballot. This is a huge advantage the partisan, non-partisan candidates have over truly non-partisan candidates.
You may also note that there has never been a primary for Michigan Supreme Court Justices. Pretty sweet for the Non-Republicans and Non-Democrats nom-inated for the non-partisan elections.
Though the Michigan Constitution mandates that judicial election ballots do not designate political party affiliation, that same Constitution gives some judicial candidates an advantage no other candidates enjoy. Sitting judges are designated as incumbents on the ballot. Incumbent state Representatives, Senators, Governors, Councilmen, Dog Catchers-all other officials, in fact, don't get this huge gift on election day. Why, you ask? In my opinion, the Judges' Association worked pretty hard at the last Michigan Constitutional Convention. I think Judges (and Justices) in Michigan recognize that few voters know who they are and what they do. So, those who have made it to the bench, usually by a Governor's appointment, want the voters to know for whom they should vote. Very little of voters' ire--"Throw the bums out"--is directed at judicial candidates. This is especially true in Michigan where there is no political party designations for judicial candidates. Hiding political party badges from Michigan voters is one thing. Hiding incumbency is quite another matter. The former has been determined by some folks (lawyers and judges drafting the Michigan Constitution, mostly) to be a good thing. The latter has been determined (by those same folks) to be a bad thing.
But I digress.
Though political party affiliation is not listed during Supreme Court ballots, it does not mean that labels aren't used during Michigan judicial campaigns. Non-Republicans judicial candidates will almost invariably call themselves "Rule of Law" judges (or candidates). These same Non-Republicans will generally call their Non-Democratic Party opponents "Empathy Judges".
Self-named "Rule of Law" Judges proclaim that they decide cases by the way the law is written, not as they might want the law to be. Michigan's current Chief Supreme Court Justice, Robert Young, a Non-Republican, is the state's leading self-anointed "Rule of Law(-er,ist,inista?)". He is on record saying that,"The role of judges is not to do good...." During one of his Supreme Court election campaigns, Justice Young used the "Empathy" judge label quite frequently with reference to those who did not agree with him. An article about that appearance before the Eastside Republican Club in Grosse Pointe Farms put Justice Young's philosophy quite well. A comment from Justice Young in the article: "But if the judicial candidate identifies with any justice other than Justice Corrigan, Markman or Young, he (Young) said, 'walk away quickly--you've identified an 'empathy' judge.'"
Very clever. A "Rule of Law" judge decides according to the plain language of the law as it exists, not as he would prefer it to read. So, by extension, the "Rule of Law" judge is always right, and anyone who disagrees with him is making up his own law.
Very tidy. And, the "Rule of Law" judges are confident voters like the sound of the "Rule of Law" label so much (and why shouldn't they), that they won't examine reality.
Canon 2(B): A judge should respect and observe the law.
Canon 3(A)(1): A judge should be faithful to the law and maintain professional competence in it. A judge should be unswayed by partisan interests, public clamor, or fear of criticism.
One would then reasonably expect that "Rule of Law" judges would be filing ethics complaints with the Judicial Tenure Commission against all those "Empathy" judges that disagree with them and refuse to follow Michigan Law as it is plainly written. They don't. You can check it out.
Now, further, as judges are lawyers, they are compelled by the Michigan Rules of Professional Conduct as follows:
MRPC 8.3(b): A lawyer having knowledge that a judge has committed a significant violation of the Code of Judicial Conduct that raises a substantial question as to the judge's honesty, trustworthiness, or fitness for office shall inform the Judicial Tenure Commission.
If you see a Non-Republican self-styled "Rule of Law" judicial candidate during the up-coming campaign, you might ask the candidate is he follows our Rules of Professional Ethics. When he answers "Yes" you can then how many "Empathy" judges he or she has turned in to the Judicial Tenure Commission. And when he answers "None", you can ask him if that means all of our judges are "Rule of Law" judges. I'd be interested in his answer to that one.
Voters might very well be cautious-skeptical, in fact, of all pretentious, self-important labels candidates place on themselves. Especially those, as "Rule of Law" judge that claim a monopoly on virtue. It ain't necessarily so.
In Part II, I will discuss the recent Michigan Supreme Court Opinion in the case of IBM v Michigan Department of Treasury, where it is indeed hard to tell the "Rule of Law" Justices from the "Empathy" Justices, and the Non-Republicans from the Non-Democrats.
Very soon, I will be posting some pictures from last year's Judge Kaye Tertzag Purple Sportcoat Dinner. Thinking of that event gets me thinking of Judge Tertzag and thinking of Judge Tertzag reminds me of how Tom Bosley's portrayal of New York Mayor Fiorello LaGuardia in the musical Fiorello! reminds me of Kaye Tertzag. In the past, while in this mood, I have posted songs from the original Broadway soundtrack.
As today is Labor Day, I post this number, "Unfair". It shows LaGuardia helping a group of striking Union workers, members of Ladies Waistmakers Union Local 25, in finer points of picketing. All of the lyrics to this song can be found at the end of this post, but I will give you a little taste here:
Let's put a stop to the sweatshop! That's the disease we want to cure! Proudly we picket The punks who pick the pockets Of the poor hard-working poor! While we stitch-stitch-stitch Someone's getting rich By the sweat of his sister's brow! Let's fix the wagon of this gold-hungry dragon! Let's trim the fat from this...sacred cow!
As LaGuardia was a Republican, there's a fair amount of irony here. The Republican Michigan legislature pushed through "Right to Work" here a couple of years ago. Unions have been cast as the enemy. The gold-hungry dragons grow ever richer, and through a great PR apparatus have convinced a large percentage of the populace that workers should be able to save enough from their minimum wage jobs to pay cash for medical treatment and save for their retirment. I have even heard a young man, whose only post college job has been with his father's company say "No one is putting a gun to their heads making them work at WalMart". Indeed.
While organized labor's membership is declining, what passes for political discourse tends to remind one of a Teamster's Union meeting-see almost all cable news networks.
Where have you gone, LaGuardia and Tertzag? We need you.
Happy Labor Day.
Management's unfair! Management's unfair! Management is terribly unfair! (Girls! Girls! That's not the way to win!) You'd think that a human heart would break At such a display as this! But warm-hearted men, with money at stake can turn into heartless misbegotten misers Now a strike isn’t played like tic-tac-toe and soft-spoken tactics just don’t go! Ladies, you’ve got no choice! You’ve got to holler and howl in a most unladylike voice! (Unfair! Unfair!) (Again! Unfair! Unfair! Louder! Unfair! Good!) Let's put a stop to the sweatshop! That's the disease we want to cure! Proudly we picket The punks who pick the pockets Of the poor hard-working poor! While we stitch-stitch-stitch Someone's getting rich By the sweat of his sister's brow! Let's fix the wagon of this gold-hungry dragon! Let's trim the fat from this...sacred cow! You've got to howl at the top of your voice! Holler and howl at the top of your voice! Keep yelling "foul" at the top of your voice! Unfair! Let's put a stop to the sweatshop! (Good!) Let's end the evil of the age! (That's it!) Fight to the finish to win the war we're waging For a decent... LIVING... WAGE! (Right!) Must we sew and sew solely to survive So some low so-and-so can thrive? No! He'll fry in Hades if it's up to the ladies Waistmakers Union Local 25! UNFAIR!
It has been some time since I wrote an article concerning the "Open and Obvious" doctrine which was created about 20 years ago by members of the Michigan judiciary, and has since been applied to dismiss hundreds of premises liability cases. In fact, I haven't written anything on the subject since before the Michigan Supreme Court issued its Opinion in the case of Hoffner v Lanctoe in mid-2012 (the hilarious opening to majority opinon written by Chief Justice Robert Young--"Michigan, being above the 42nd parallel of north latitude, is prone to winter.").
Therefore, I was a bit surprised to be the recipient of a hand-written fax sent to me very late in the afternoon of Monday, August 25, 2014. Attached to the note was the Michigan Court of Appeals opinion in the case of Poole v Foodland/Atlas Market, Case No. 312685 (an unpublished decision dated August 12, 2014). The Dissent can be found here. The fax had been sent, apparently, by the the attorney for the Plaintiff in the Poole case, who had seen his client's case dismissed. The Court of Appeals had reversed the decisions of both the District and Circuit courts which had denied the Defendant's Motion for Summary Disposition.
The hand-written note stated what the Court of Appeals had done and the attorney indicated his intent to file a Motion for Reconsideration, due September 2. He hoped to persuade one (if not both) of the Majority's judges to correct their error and join with the Dissent. The note ends: "Thanks!"
No request that I do anything, call him or respond. I don't know this attorney at all.
Though tempted to ingore the communication, I didn't. But, due to a late deposition on Monday afternoon, two Settlement Conferences and a Facilitation on Tuesday, I didn't get a chance to look at the case until Wednesday morning. I reviewed both opinions, formed some opinions of my own, and called the attorney early Wednesday afternoon, asking that he call me. As of this writing, September 1 (Happy Labor Day), I have not received a response.
So, let me share my one insight on the Poole case, which I intend to use in the future.
The Majority in this case, involving a slip and fall on snow or ice, held that such conditions are "Open and Obvious" slippery hazards as a matter of Michigan law. To quote:
"Plaintiff acknowledged that she observed the ice when she entered defendant’s store. She also observed snow when she exited the store; thus, she also would have knowledge of other hazards – like ice – that typically come with snow. Slaughter, 281 Mich App at 479. . Further, this Court has held that “by its very nature, a snow-covered surface presents an open and obvious danger because of the high probability that it may be slippery.” Ververis v Hartfield Lanes, 271Mich App 61, 67; 718 NW2d 382 (2006). Therefore, the snow and ice at the exit of defendant’s store was an open and obvious condition."
Some cases have carved out what has become an increasingly illusory exception to the "Open and Obvious" Doctrine, that being a situation involving an "Effectively Unavoidable Hazard". A case may not be dismissed even in the presence of an open and obvious danger, if the encounter with the hazard was effectively unavoidable.
Ms. Poole was injured when she exited the Foodland store. It was argued that the snow and ice at the door of the store was effectively unavoidable as Ms. Poole was required to use the door to leave the store when her business with the Foodland store was done. This, in fact, had been the decision in the two lower courts.
The Court of Appeals majority rejected the effectively unavoidable argument and reversed the lower courts. And, why was the hazard not effectively unavoidable? To quote again from the opinion: "...as plaintiff testified, she was able to traverse the area when she entered the store".
Though there seemed to be a factual dispute as to whether the conditions at the store entrance were the same when plaintiff left as they were when she arrived, the Majority did not think it important to consider those facts. Disputed facts do get in the way of dismissing cases. However, when necessary, Michigan courts have taken it upon themselves to make factual findings when it can assist in the dismissal of cases. For nostalgia buffs, in the Olden Days, you may remember that fact-finding was what we had juries for.
So, according to the Majority, Ms. Poole had to encounter the same slippery (as a matter of law) snow, or ice, or snow and ice, or snow covered by ice, or ice covered by snow-what the hazard actually was makes no apparent difference-on the way out of as on the way in to the store. The hazard was not effectively unavoidable on the way out because Ms. Poole had walked over the same hazard on the way in without slipping. Therefore, (and here is my insight, by the way) we must conclude:
THE SNOW AND ICE ENCOUNTERED BY MS. POOLE WAS NOT SLIPPERY AS A MATTER OF MICHIGAN LAW. She should not have expected the snow and ice to be slippery on the way out.
So, from now on, if someone sees footprints in the snow, they may conclude, as a matter of Michigan law, that the snow and ice thus traversed, is not slippery. If it is not slippery, it cannot be an Open and Obvious hazard.
Makes about as much sense as most of our judicially created "Open and Obvious" decisions, which have ignored judicial precedent and in my humble opinion also ignored Michigan's Comparative Negligence statute (MCLA 600.2958 and MCLA 600.2059) in the quest to gut Michigan premises liability law.
Until some Michigan "Rule of Law" judges have the courage to do what they have wanted to do for years, that is, rule that Michigan requires its citizens to guarantee their own safety under any and all conditions, we will continue to see cases like Poole that get to the desired result, dismissal, without being able to use the desired reasoning-see previous sentence.
Following the plain language of Michigan's Comparative Negligence would avoid much of the tortured reasoning used to dismiss premises liability cases. However, our Rule of Law judges have done a masterful job of misconstruing the issues so that they can profess allegiance to state law, while at the same time completely ignoring it.
I don't think this is what Poole's attorney had in mind when he sent me the fax. Best of luck to him. He will need that, if not Divine Intervention.
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.