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MERRY CHRISTMAS

Before there was CGI, before there was color, before there was sound, before there was 1900, even, there was this little technological gem from 1898.

MERRY CHRISTMAS TO ALL.

EXPLANATION FAIL

If you are ever tempted to believe the "experts", the politicians, and the partisans of every stripe who tell you they know all the answers on any issue, indicating (if in power) that we either have no problems, or, if we have any problems that they are all the the fault of the other party (whether in power or not), or to the extent that we have any problems they are solely due to too little or too much of whatever they are for or against, run this little clip.  It may provide some perspective, especially in view of our current economic "situation".

Understated comedy is usually the best.

Happy Holidays everyone.

ROBOCOP-OUT ALABAMA SENATOR RICHARD SHELBY

After President George Bush's auto industry loan package announcement on Friday, December 19, 2008, Alabama Senator Richard Shelby continued to voice his opposition to any federal help to domestic automakers (well, other than that provided by the US Bankruptcy Code). 

Living in the Detroit area, I can admit that I am probably not totally objective in my outlook.  I see how cutbacks in the auto industry have already affected this area.  I have seen how the auto companies have already cut closed local plants, cut jobs, cut costs, even cut product lines, in an effort to stay competitive with foreign car manufacturers.  I have seen car companies try to deal with ever more stringent federal regulation that requires huge investment in research, development and retooling.  I have seen the factories and tool shops of countless suppliers whose survival is tied to the viability of the Big Three.  I can easily understand how the collapse of the domestic auto industry will be catastrophic for millions of Main Street Americans, whose idea of the American Dream is not eight-figure bonus packages while their companies fail, or 20 million dollar Manhattan apartments (when they are forced to stay "in town" and can't get away to their places in the Hamptons or on the Riviera).  I see displaced workers for whom the American Dream is more like a three bedroom house and education for their kids.  The greed of those folks.

I have also seen how out of touch a lot of "authorities" are with reality.  They sit on their various panels on their various news networks and say how the country will be better off if we teach the domestic auto industry a lesson and let it die.   They then go home after a hard day's work and make sure they don't ask too many questions about the citizenship status of members of their domestic staffs.  It amazes me how the economy is in the state it in with so many people so sure of themselves.  Turn a few of these folks loose in Washington for five minutes and we should all be on easy street again.

Then we have Alabama Senator Richard Shelby.  In this crisis, we can add to the ranks of the unfeeling, the ignorant and the arrogant, Sen. Shelby, the hypocrite.  Granted he was against the Wall Street Bailout as well as the Auto Loan Package, and their may be some sound reasons for not giving 700 billion to an industry with no strings attached and no assurances that it would be used to help the nation out of an economic crisis its greed did a lot to create.  More about that another time.  Unfortunately, even his opposition to the Wall Street Bailout came across as so much political grandstanding.  See this clip from back in September with the "letter signed by 200 economists".   Maybe the Senator should have kept all the signatories in a room after they  signed the letter and not let them out until they let us know the way out of the economic crisis.

Senator Shelby may not like government hand outs to the financial industry.  That motive certainly cannot explain his opposition to help for the domestic auto industry.  His home state of Alabama has given hundreds of millions of dollars of tax breaks, incentives and subsidies to foreign automakers, so long as they built plants in his state.  No wonder the Big Three have problems competing. 

This was pointed out in a very well written letter to Senator Shelby from Peter Karmanos, CEO of Compuware.  Mr. Karmanos said:

"I trust it is safe to say that when you refer to 'government subsidies,' you are referring to subsidies provided by both federal and state governments. And if this is in fact true, then I am sure you were adamantly against the State of Alabama offering lucrative incentives (in essence, subsidies) to Mercedes-Benz in the early 1990s to lure the German automobile manufacturer to the State. As it turned out, Alabama offered a stunning $253 million incentive package to Mercedes. Additionally, the State also offered to train the workers, clear and improve the site, upgrade utilities, and buy 2,500 Mercedes-Benz vehicles. All told, it is estimated that the incentive package totaled anywhere from $153,000 to $220,000 per created job. On top of all this, the State gave the foreign automaker a large parcel of land worth between $250 and $300 million, which was coincidentally how much the company expected to invest in building the plant.

With all due respect, Senator, where was your outrage when all this was going on? Perhaps on principal you did disagree with your colleagues in the Alabama State Government over these subsidies, but I don't recall you ever going out and publicly decrying Alabama's subsidization strategy. I certainly don't recall you going in front of the nation (as you did this past Sunday) to discuss what a big mistake Alabama was making in providing subsidies to Mercedes Benz. If you had, however, you could have talked about how, applying free market principles, Alabama shouldn't have had to resort to subsidies to land Mercedes Benz. Competitively speaking, if Alabama had been the strongest candidate under consideration (i.e. highest quality infrastructure, workforce, research and development facilities, business climate, etc.), then subsidies shouldn't have been required.

The fact is that Alabama knew that, on a level playing field, it could not compete with the other states under consideration and, thus, to lure the German car builder to the State, it offered the aforementioned unprecedented subsidies. In effect, Alabama--your state--did exactly what you said government should not do: provide subsidies for manufacturing."

Well said, Pete, and I'll forgive you for hanging the Hurricane's Stanley Cup banner from the front of your building in downtown Hockeytown a few years back.

Senator Shelby is really playing at politics with our domestic auto industry and the lives of several million Main Street Americans in the hope that he can get a few more foreign plants to build in his home state of Alabama. Shame on him. 

Wait till some really important issue hits Alabama.  We'll see what you do when some Yankee football program offers your beloved Crimson Tide's Nick Saban a nice incentive laden package to leave Alabama.  It's been done before.  I wouldn't be surprised to see your name on a bill to regulate the NCAA.

The Detroit Free Press cartoonist Mike Thompson did a nice piece on Senator Shelby called RoboCop-Out.  While it can't be embedded here, Mr. Thompson did give me permission to link to it.  Please click on the link below the drawing.

RoboCop-Out

DELAYEDJUSTICE.COM

Added to the Links of Interest section of this site, after an unjustified delay, is DelayedJustice.com, the website and blog of David B. Schock, Ph.D.  David is a former associate professor at Hope College in Holland, MI.

His site contains several parts, including Conflict at the Court, an interview with Michigan Supreme Court Justice Elizabeth Weaver, that has been previously featured on Attorneybutler.net.  That in depth piece outlines some of the problems with our state Supreme Court, problems that have not gone away merely because Chief Justice Cliff Taylor was rejected by Michigan voters in November.

David has recently drawn attention to goings on within the Supreme Court Administrator's office, especially with regard to recent events in the Macomb County Probate Court that have not received sufficient attention in the mainstream press.

A significant part of the site is devoted to David's documentary work on several "cold cases" of unsolved homicides in the state.  His determination in the Janet Chandler case led him to investigate a homicide case that had been unsolved since 1979.  Working with his Hope College students, a documentary about the unsolved case was first screened at the Knickerbocker Theater at Hope College in 2004.  As a result of the work of David and his students, the case was reopened and in 2006, and six people were ultimately convicted of murder, four receiving mandatory life sentences.

David has also worked on other film projects involving other cold cases.  Other projects include films on the Klan in Michigan.

David Schock is truly a man of diverse interests and great talent.  That he put in a plug for my site on his also shows his good taste.

A visit to the site is well worth the time.  Excerpts from some of the films are also included.

Although I have spoken and communicated with David, we have yet to meet, living on opposite sides of this great state. I intend to remedy that shortly.

JOHN THAIN'S 10 MILL BONUS BID--CALLING DAN PERO

Merrill Lynch CEO John Thain put in for a 10 Million Dollar bonus from the company for his work this year.  Merrill Lynch in 2008 lost over 11 Billion Dollars, laid off 30,000 employees and was sold to Bank of America.  Its stock price today is $13.04, a little less than one-quarter of its end of 2007 stock price.  Well done, faithful servant.

I was going to forward this story to my good friend Dan Pero, of the American Justice Partnership.  What he couldn't do with such an example of greed and arrogance.  Certainly Mr. Thain is the poster child for what is what is wrong with the American economy.  But, wait, John Thain is not a trial lawyer (boo, hiss), he is a representative of corporate America (hip, hip, hooray).  Well, never mind then.  Dan probably won't run an article on this. 

I think I'll wait for his next piece on how the tort reformers like John Engler, the Republican Michigan legislature and Supreme Court, brought economic prosperity to the great state of Michigan.

MARXIST ECONOMICS-PART 2

As a Michigan resident, I am in favor of loans to help the auto industry get through this rough time.  I think it is fair, especially, in view of the few, if any, strings attached outright bailouts to several banks and insurance companies (not to mention our monthly investment in Iraq) that make the auto loan figures look like chump change.

However, I am a little leary of what happens when government gets  involved in running, managing or regulating any kind of business.  When Congress writes the rules, as Chico Marx says in this clip:  "There ain't no sanity clause."  Let's hope Sanity Clause brings some cheer to US manufacturing.

Happy Holidays.

COMING UP

Coming up on AttorneyButler.net:

Open and Obvious-The Judges Don't Get It (Either)  The case of Loveland v Spectrum Health shows that Judges are making findings of fact in Open and Obvious decisions and are clearly wrong on the law--and the facts.

Michigan Supreme Court Justice Robert Young On the Common Law  A quote:  "I tend to think of the common law as a drunken, toothless ancient relative, sprawled prominently and in a state of nature on a settee in the middle of one's genteel garden party. Grandpa's presence is undoubtedly a cause of mortification to the host. But since only the most ill-bred of guests would be coarse enough to comment on Grandpa's presence and condition, all concerned simply try ignore him."

Thank God this florid proser is not a judicial activist. (Humor alert.)

Stay tuned.  The election is over.  The fight for justice continues.

PERSONAL RECOLLECTIONS OF JUDGE AND JUSTICE CLIFF TAYLOR

Given the extraordinary results of this month's election and given the time of year, a less sophisticated correspondent might be tempted to Photo-Shop the head of a certain jurist on the body of a certain Thanksgiving main course and post it on his blog.  However, as we are entering the season of goodwill toward men, I would like to share my memories of a couple of cases I argued before Judge and then Justice Cliff Taylor, soon to give up his seat, at least for the next two years, as Chief Justice of the Michigan Supreme Court.

Back when Cliff was on the Michigan Court of Appeals, I had occasion to argue several cases before panels of which he was a member.  I am reminded of one case back in the days before the "Open and Obvious" was being used to gut most all premises liability cases.  In those early days, several judges had used the doctrine to dismiss defective sidewalk cases against municipalities, claims which would otherwise have survived a governmental immunity challenge.  I had appealed such a dismissal and the case eventually came up for oral argument.  I argued that the city involved had a statutory duty to maintain sidewalks.  Such a statutory duty could not be eliminated by the open and obvious doctrine, I argued.

After my oral argument, as the Appellant, the attorney for the City went up to the podium.  The first thing out of Cliff Taylor's mouth was:  "Why isn't he right?"  He was gesturing at me. The City attorney wasn't the only shocked lawyer in the room.   What followed was one of the few pleasant experiences I have had during an appeals court argument.  I walked out of there that day feeling pretty good about myself.  Visions of a landmark, published reversal danced in my head.  What I didn't know was that the same issue had been argued before the Court of Appeals a week or two before, and the Court already knew where it was going, and the glory of the published opinion would go to that case, not mine. Sic transit gloria mundi.

The statutory exception to the "open and obvious" doctrine remains one of the few chinks in the false armor of some very bad law.

I have always suspected that much of Cliff Taylor's subsequent judicial career was an attempt to atone for the unguarded moment when he asked a defense lawyer if an appellant "trial attorney" wasn't correct.

Several years later I appeared before Cliff Taylor after he had been appointed to the Supreme Court.  I had inherited a file from another attorney who had left my firm.  The case involved rather complicated issues of insurance coverage.  The leading opinion on the issue had been written by Elizabeth Weaver while she was still on the Appeals Court bench, only a year or two before.  The Supreme Court had denied leave then.  We had won our case from the trial court through the Court of Appeals.  Judge Weaver's opinion had been the controlling precedent throughout.  But guess what?  This time the Supreme Court granted leave. 

Back then, there was a tradition that the Supreme Court would open its session by holding proceedings for one day in the Court's old chambers in the Capitol building.  The Court's docket for this day consisted of only one case, picked for its alleged interesting legal issues.  My case was picked, lucky me.  There would also be the unveiling of a portrait of a former justice, on this day Justice Volker, author of Anatomy of a Murder.  Members of his family were present, as well as members of the family of Stephen Markman.  You see, this was also his first day on the job. 

I recall riding up the elevator that morning with Justice Taylor, who looked down at my briefcase, on which was engraved the name of my firm, Bernstein and Bernstein.  Cilff asked me if I was today's victim.  Wit that I was, I answered something quite glib, like "Ihope not", or something equally memorable.

During my oral argument, I recall Justice Weaver nodding her head in agreement.  Justices Taylor and Young gave me a fairly hard time. Justice Markman said nothing at all.  Maybe I wasn't the only one in the courtroom nervous on that day.

You may have guessed the result already.  The precedent of Justice, then Judge Weaver was overturned, and my client lost.  Well, that's not entirely true.  I had thrown into my brief a reference to an obscure statute that wasn't extensively briefed or argued.  Though I lost on the primary issue, the Court remanded the case back to the trial court regarding the applicability, if any, of that statute to the facts of the case.  The Supreme Court essentially "punted" on the issue.  On remand, I won in the trial court, my client was fully compensated for her loss, and the defendant took no appeal.

So there.

I like to think that Cliff's question to me in that elevator that day was not meant unkindly, nor do I think that it provided a brief glimpse into the soul of a man who hates all plaintiff lawyers.  He probably would have said something similar to anyone, Appellant or Appellee, he thought was there as part of the day's entertainment.  Or, perhaps not.

Even though I have always thought Cliff Taylor resembled David Letterman, and I like David Letterman, I will not be sorry to see Cliff leave the bench for the time being.  I don't like my clients providing material for his Top Ten Reasons I Why Like Being a Textualist.

RANDOM THOUGHTS

                           Although there has been a slight decrease in the frequency of posts on American Courthouse Blog (author Dan Pero, husband of Colleen Pero, Michigan Supreme Court Chief Justice Cliff Taylor's campaign manager in the recent election.  American Courthouse is part of the American Justice Partnership, founded by the National Association of Manufacturers, whose President, John Engler is the former Governor of Michigan, in which capacity he appointed Cliff Taylor to the Michigan Court of Appeals and then the Michigan Supreme Court.) since the November election, the themes remain unchanged, even in the current conditions of economic crisis, both locally and nationally.

According to American Courthouse, there is nothing wrong with any economy, state or national, that wouldn't be cured by additional tort reform legislation.  I use the term additional, because for Dan Pero, there can never be enough tort reform legislation. 

There is only one other thing necessary for a thriving economy, according to American Courthouse.  That is the incarceration of all "trial lawyers", meaning all lawyers who represent injured people.  Defense lawyers are different.  The fast track to sainthood for them.

The other recurring theme is the political career of Clff Taylor.  Despite Cliff's defeat at the polls less than a month ago, there have been several post designed primarily to start paving the way for his 2010 campaign.

No posts about bailouts for insurance companies like AIG, banks like Citibank, and more mortgage companies than you could shake a stick at.  No complaints about corporate executives with nine figure compensation packages taken while their companies  prepare to file Chapter 11 bankruptcy.  Nothing about "Rule of Law" (American Courthouse speak for "Republican") Senator Ted Stevens being found guilty on all counts of making false statements on October 27, 2008, but continuing his November 4 re-election bid, claiming, "I haven't been convicted of anything."

Instead we have articles on November 10, speculating on the effect the election of Diane Hathaway will have on Michigan's economy.  Don't know Dan, but as I write this, Cliff Taylor is still our Chief Justice and the Big Three automakers are making their second trip to Washington in as many weeks asking for a Federal loan package, that will prevent at least one of the companies from filing Chapter 11 before the end of the year.  By the way, Diane Hathaway won't be sworn in until January 1.

So, while main street Michiganders teeter on the brink of economic catastrophe, Dan will continue to post hard hitting, and relevant articles like those praising Cliff Taylor for voting for the closing of Michigan Supreme Court branch offices, and condemning Betty Weaver for voting against the measure.  Of course Dan won't mention that Cliff never bothered to propose the move before his election defeat, even though the Hall of Justice space in Lansing was available for any office consolidation since 2005.  Probably Cliff didn't think he had to worry about Michigan voter then.  He does now.

While the list of companies needing federal help to survive grows ever longer (a list that looks remarkably like the membership roll of the American Chamber of Commerce), American Courthouse will continue to blame all the economic ills of the country on the injured citizens and those who speak for them, union or trial lawyer.

The American economy will not get much help for what ails it from American Courthouse or the American Justice Partnership.  For them, like for Led  Zeppelin, the song remains the same.

To paraphrase a line from the old English TV series,Blackadder Goes Forth:  "That's the spirit, Dan.  If nothing else works, then a total, pig-headed unwillingness to look facts in the face will see you through."

To get to the random portion that the title of this piece implies.  Sunday, November 30, marked the anniversary of the birth of Winston Churchill.   A statement of Mr. Churchill's got me thinking about Dan Pero.  Winston Churchill defined a fanatic as one who can't change his mind and won't change the subject.

While Dan might be proud to call himself a fanatic for his principles, let me refer him to one of Cliff Taylor's most authoritative legal texts, an on-line dictionary.  According to the Free Dictionary, fanatic is defined as follows:

A person marked or motivated by an extreme, unreasoning enthusiasm, as for a cause.

The "unreasoning" part is certainly accurate here.  So, Dan, don't let reality deter you from protecting your AJP gig (and trying to get Cliff Taylor elected in 2010).