attorneybutler.net

HUMBLE AGAIN-SHEEPISH TOO

After my previous post about Taryn Hartman's article in the Detroit Legal News January 9, 2009 edition, this article, Blogging Barristers-Why Detroit lawyers keep blogs and how they're changing the profession,  appeared in the January 26th issue of the paper.

It contained references to this site and its author:

"Southfield personal injury attorney Michael Butler started his blog AttorneyButler (http://www.attorneybutler.net/) as a for-fun venture originally intended to be slightly tongue-in-cheek and feature law-related humor combined with some serious legal analysis. But in a "bad time for justice in this state," Butler said the blog has instead taken on a much more analytical tone and evolved into something bigger.

"I believe it will become more important as time goes on," Butler said of blogging, hypothesizing that lawyer-created blogs will become more common sooner rather than later. He cited blogging as a way for attorneys and firms to communicate with clients in a manner slightly different from a traditional Web site and a tool that will put more legal information in the hands of everyday citizens."

(I didn't say "hypothesize", however.  Speculate, ruminate, prognosticate, perhaps, but not hypothesize.)

Also featured in the article were various other local legal blogs, including Steve Gursten's fine Michigan Auto Law Blog.

In addition, both blogs were referred to in a sidebar called Mulling over Blogging-Dos and Don'ts from Some Local Pros.

Well, being the humble and self-effacing guy that I am (I have much to be humble about), I would like to apologize to Ms. Hartman for my previous post, which might be seen as damning her Women's Blog article with faint praise.  I feel like a dope.

In all this,I did learn that the Detroit Legal News has come a long way in recent years.  I remember when it used to be 8 pages, with 7 3/4 pages devoted to legal notices letting uninsured, out-of-state residents know they were being sued.  I am sure the word got to them somehow.  Now, it is a five day a week affair, soon to have more content and features than our weekly Freep and Detroit News.

I also learned from the article that local legal blogs still have a long way to go before they reach their potential for educating the public about citizens' rights and various fun and frolic in the state court system.

Finally, I learned that if a blogger wants to enhance his/her "cred", it is always good to use Mr. Spell Check.

Sorry, Taryn.  However, you now have a fan in me.

BALANCE ON THE COURT-TOLEDO BLADE EDITORIAL ABOUT THE MICHIGAN SUPREME COURT

Earlier this month, the Toledo Blade ran this editorial, entitled: Balance on the Court, a remarkably perceptive, South of the Border, look at the Michigan Supreme Court.  It begins:

"FOR the last few years, Michigan's Supreme Court has been perhaps the most disgracefully partisan in the nation. Hard-line ideological Republicans held four of the seven seats, and voted in lockstep. There were two liberal Democrats who voted against them. Only one justice, Republican Elizabeth Weaver, has had an independent voting history, which earned her harsh, sometimes disgracefully personal, criticism from her GOP colleagues."

On the recent election of Chief Justice Marilyn Kelly:

"Though the change was gratifying, it does not address the main flaw with Michigan's Supreme Court: Right now, it is disgracefully political by design, with the major parties choosing and funding the candidates, some of whom are elected and arrive in Lansing having never served on any bench before."

(Actually, many are first appointed and arrive in Lansing having never served on any bench before. AB)

And finally, as to Michigan's partisan, non-partisan judicial election system:

"Justice should not be partisan - at any level. That's something Michigan voters ought to address via a constitutional amendment, and it should happen sooner rather than later."

Not bad, there, Buckeyes.  After reading that last quote, I can almost hear the grinding of Dan Pero's teeth.

 

SO I PICK UP THE BALL AND THROW IT TO WHOM--OAF OF OFFICE

Chief Justice John Roberts rendition of the Presidential Oath of Office on January 20th caused quite a stir in a nation beset with some real problems.  Justice Roberts failure to recite correctly the Oath as set forth in the US Constitution for over 200 years, caused such of wave of speculation, conspiracy theories, etc. in the media and on the Internet that the Oath was re-administered on January 21.  This of course has not silenced those who speculate as to the validity of various executive orders signed between Oath 1 and the sequel.

While it had been my impression that initial error was due solely to a memory lapse on the part of Justice Roberts, a January 21, New York Times Op-Ed piece by Steven Pinker, had an interesting take.  In Oaf of Office , Mr. Pinker suggests that the Justice Roberts, a stickler for proper grammar, could not bring himself to utter, unchanged, the language of the Constitution, that contained within it what he considered to be an improper "split verb".  To a strict grammarian like Justice Roberts (believes himself to be) the Constitution's wording of:  "will faithfully execute", was just something he could not bring himself to say.  I believe that (now after two Oaths) President Obama hesitated, not knowing whether to repeat what he heard, or to say what he knew to be correct.

Justice Robert's grammatical niggling is well known.  As the article states:

"In his legal opinions, Chief Justice Roberts has altered quotations to conform to his notions of grammaticality, as when he excised the “ain’t” from Bob Dylan’s line “When you ain’t got nothing, you got nothing to lose.”

This reminded me of an old variety show I had seen years ago, where a comedienne pretended to be Julie Andrews singing Old Man River.  "...That Old Man River, he must be aware of of something, but he doesn't say anything."  And an Odd Couple episode where Felix and Oscar try to do the old Abbott and Costello "Who's on First" routine, but Felix ruins the skit by insisting on proper grammar.  "So I pick up the ball and throw it to whom?"  Often, when we hyper-analyze the component words of a passage, its meaning is lost.  In Michigan, under the Reign of the Textualist Justice, Michigan citizens have learned what the parsing of words can do to justice.  In my opinion, certain Justices parse words precisely to change their intended meaning.

It appears that Justice Roberts, in the finest example of the textualist  tradition, felt compelled, even if subconsciously, to amend the Constitution to fit his conception of the rules of grammar and usage.  Only, its seems that his understanding of the prohibition on split verbs is not correct.  You see, Mr.Steven Pinker is a psychology professor at Harvard and the chairman of the usage panel of The American Heritage Dictionary, not just an ink-stained op-ed wretch.  He goes through the analysis and Justice Roberts' rules of usage are not correct, even though taken as gospel by many.  So confident was Justice Roberts of his own opinion that he changed a 200 year old provision of our Constitution, and brought chaos, of a sort, to the beginning of the Obama Administration.

Prof. Pinker concludes:

"President Obama, whose attention to language is obvious in his speeches and writings, smiled at the chief justice’s hyper-correction, then gamely repeated it. Let’s hope that during the next four years he will always challenge dogma and boldly lead the nation in new directions."

Perhaps the Michigan Supreme Court can learn that, in analyzing a law before them, the right result comes from looking at the sum of the parts, and not from the separation and dissection of those parts.

 

JACK LESSENBERRY ON MICHIGAN SUPREME COURT CHIEF JUSTICE MARILYN KELLY

On January 21, 2009, Jack Lessenberry of Michigan Radio did an interview with Marilyn Kelly, newly elected Chief Justice of the Michigan Supreme Court. The interview can be heard here.

The same day, Mr. Lessenberry wrote an essay entitled: "Supreme Justice?"  It begins with a nice comment about Justice Kelly:

"In my opinion, one of the best things to happen to the pursuit of justice in Michigan in the last few years has been the election of Marilyn Kelly as the new chief justice of the high court."

But the essay is more about both the ghosts of Supreme Courts past and Supreme Court elections past. 

"Michigan has just gone through a disgraceful period in which the court has been entirely dominated by a majority of four partisan ideologues, who were all too willing to endorse anything the Republican Party or the state Chamber of Commerce was for."

He refers to one of my favorite organizations, the American Justice Partnership.

"The American Justice Partnership, or AJP, is a conservative, pro-business interest group which, Bill Ballenger reported last week, funnels millions into high court races in various states, including Michigan. AJP failed last year in its main mission here, to re-elect then-Chief Justice Cliff Taylor, who lost in a landslide."

Some of the comments to the essay basically accuse Mr. Lessenberry of being a partisan himself, but he does raise some questions about the role of lawyers in the election process as well.

"That’s not to say only conservatives are guilty of trying to influence judicial elections. Under Michigan law, a trial lawyer can contribute huge sums to finance Democratic ads without his - or her - identity being disclosed. Does that mean Geoffrey Fieger helped finance the famous sleeping-on-the-bench ad that did Cliff Taylor in?"

I think the biggest problem the AJP and the Chamber of Commerce have with Mr. Lessenberry is that he suggests that our current system for selecting justices might need looking at.  The American Justice Partnership and the Michigan Chamber of Commerce like the system as it is.  Their recent experience with Cliff Taylor aside, these groups realize that judicial elections generally go to the better financed candidate.  And the Chamber of Commerce has more money to pour into campaigns than the average, main street citizen whose rights have eroded under the "Engler Four".

With Chief Justice Kelly's court, there is hope that justice may again prevail in Michigan.

ANOTHER LESSON IN HUMILITY

Taryn Hartman's e-mail  of January 6, 2009 could not have come at a better time.  Still smarting from the exclusion of www.attorneybutler.netfrom the ABA's list of the Blawg 100-the Best of the Blogosphere I read her message with considerable interest.  It stated, in part: 

Hello Mr. Butler,

I'm currently working on a story for the Detroit Legal News on law
blogs and would like to get your perspective on how they're impacting
the legal community and what advantage they bring to the practice of
law.  Are you available sometime in the next few days for a brief
phone interview? 

Well, you bet I was, and I called Ms. Hartman on the morning of January 7, and answered questions and generally spouted off on legal blog's, their value, and my life and times as a blogger, for nearly half an hour.

The legal blog article was to appear in the Friday, January 9 edition of the Detroit Legal News.  After a morning's fun and frolic at motion day in Wayne County Circuit Court, I found our firm's copy of the paper, ready to see my various pronouncements in hard copy print.  And there is was, Page 1 as well.  Taryn's picture next to her article on legal blogs entitled: "EYE ON THE BLOGOSPHERE:  Babes in Blogland: “Blawgs” run by, aimed at, or dealing with issues of importance to women lawyers."  This site may be many things, but it is none of that.

A pdf of the article can be found here.  My views on the value of legal blogs an the state of justice in Michigan were tossed in favor of a review of a site called Women Lawyers-Back on Track.  I looked at the site, and though admirable in many ways, contained only ten entries over the past six months, one of them entitled (I am not making this up):  Toe Cleavage:  Offensive to the Legal Profession?  Yikes.

The last half of the article dealt with a site called Corporette.com  offering similar important advice on pearls:  "A question from a reader referenced the sizing chart from Web retailer American Pearl,whose formula loosely translates that for each half-millimeter increase in pearl size, a necklace is appropriate for the next 5 or 10-year age bracket."

Ms. Hartman's article solicited comments from readers as to the correct size for a P(I assume to be a pearl) in the D (I know to be Detroit).

Certainly matters of great pith and moment there for all of us.

I have not heard from Ms. Hartman since.  Maybe in the future she might solicit my views on men's ties and whether the width thereof correlates with a lawyer's legal acumen.  And what we should assume about a lawyer who always wears a bow tie.

But Ms. Hartman's article does illustrate one of the points I made to her in the interview.  Just because someone writes a "blawg" doesn't mean that is has value, or that people are even reading.  If you post it, they don't necessarily read.  You don't start a blog day one, and expect your legal views to become law day two.

I believe that any legal blog worth anything will and must build slowly over time.  People will find your blog, often accidentally, but will only come back if the content is fresh and has value.  In addition the power of legal blogs has not yet been realized by most practicing attorneys.  As most people are on line and have email addresses, the ability of attorneys to communicate with their clients quickly, easily and cheaply through blogs or digital newsletters will help educate the public about the legal and judicial systems to extent never thought  possible.

For now, my latest experience with the print media will remind me not to take myself too seriously, which is a lesson that could be of value to folks in Lansing and Washington as well.

 

BENJAMIN FRANKLIN (1706-1790)

January 17th marked the 203rd birthday of Benjamin Franklin, one of the founding fathers of the United States.  A man of wide-ranging talents, he was an inventor, scholar, diplomat and scientist.  Those seeking the absolute most authoritative biography, can of course consult his entry on Wikipedia.

Franklin wrote Poor Richard's Almanac, and is a source of many of the Franklin quotes that continue in common use today.  Here are a few, which are certainly relevant to the legal profession:

GENERALLY

Remember not only to say the right thing in the right place, but far more difficult still, to leave unsaid the wrong thing at the tempting moment.

 

He that speaks much, is much mistaken.

 

Where sense is wanting, everything is wanting.

PARTICULARLY

And whether you're an honest man, or whether you're a thief, depends on whose solicitor has given me my brief.

 

A countryman between two lawyers is like a fish between two cats.

 

God works wonders now and then; Behold a lawyer, an honest man.

 

AND, FINALLY, FOR JUDGES

 

The strictest law sometimes becomes the severest injustice.

 

A learned blockhead is a greater blockhead than an ignorant one.

BRIAN DICKERSON--GOP JUSTICES GIRD FOR GANG OF 3 1/2

On Sunday, January 11, 2009, Detroit Free Press columnist Brian Dickerson wrote the above entitled piece concerning the newly configured Michigan Supreme Court. Justice Marilyn Kelly was elected the Court's new Chief Justice and Justice Diane Hathaway was sworn in on January 8.   Justice Hathaway took the place of Cliff Taylor, who she defeated in the November election.

However, Justice Robert Young is featured prominently in the article, which begins:

"It's been a grim couple of months for Justice Robert Young Jr., the only African American on the Michigan Supreme Court."

The article goes on to describe Justice Young as, "The second of three justices appointed by Engler, Young joined the court in 1999 and has been a stalwart in the so-called Gang of Four that rewrote vast tracts of Michigan jurisprudence -- largely to the detriment of consumers, criminal defendants and environmental advocates."

Justice Young must run for re-election in 2010.  Mr. Dickerson's article states that since 2000, "the disciplined Engler majority made sure that whichever of its members was next to face re-election spent the preceding two years as chief justice, a position that provided high visibility and unrivaled authority over the state's lower courts."

As the poet Robert Burns might have said, the best laid plans of the Gang of Four, "gang agley"(or whatever the past tense of "gang" is), with the defeat of Cliff Taylor.  Not only did the election prevent the passing of the office of Chief Justice to Robert Young, as the article states,  "It also imperils Engler's vision of a court that would make Michigan a permanent safe haven for insurers and other deep-pocket defenders, who tend also to be big-pocket donors to Michigan's Republican Party."

The title of the article refers to Justice Elizabeth Weaver, a Republican who has exercised independence during her time on the Supreme Court bench.  She is not among the "Gang of Four", and has voted with the minority of Democratic justices on many but by no means all important cases involving big business and consumers.

Such independence has not pleased the Gang of Four and the article concludes with a quote from Justice Young with reference to 2010, when he and fellow Republican Elizabeth Weaver are up for re-election.  Though there are two seats up in 2010, Justice Young offered this advice to his Republican Party:  "They can nominate her, or they can nominate me."

A mature sentiment, indeed.  Well, in this instance, what's good enough for Justice Young is good enough for me.  Can anyone tell me when and where the "Republicans for the Re-Election of Elizabeth Weaver" committee next meets?  I will come a 'runnin.

 

MICHIGAN SUPREME COURT JUSTICE ROBERT YOUNG ON THE COMMON LAW (WITH GLOSSARY AND GAZETTEER)

I don't consider myself a partisan hack.  Some may doubt that, as this article appears to be a mere switch in focus from one Republican Michigan Supreme Court Justice, Clifford Taylor, recently defeated, to another Republican Supreme Court Justice, Robert Young, up for election in 2010.  In local politics I seem to support Republicans exclusively, I am pro-life, pro-domestic auto industry, etc.  I have a great deal of admiration for Justice Elizabeth Weaver, a Republican, also with a term expiring in 2010.  Though the son of a skilled tradesman, I don't believe that the Democratic Party has a monopoly on virtue.

However, there remains a problem with the the state of Justice in this state, even after the defeat of Clifford Taylor.  I don't believe that the problems with the administration of justice in Michigan were entirely his fault.  Justice Taylor was certainly the face of what was called the "Gang of Four", but obviously not its only member.  While he is off the bench, I will continue to watch his career with considerable interest and I believe we have not seen the last of him as a judicial candidate or, for that matter, judge.  His legacy remains on the books and his adherents on the bench.

If this article is considered an attack on the views of Justice Young, I can with confidence state that it is not the first round of sniping in and around the Hall of Justice.  Mr. Taylor(and his surrogates), Justices Young and Markman have already taken shots at Justice Weaver, Justice Kelly and Justice Hathaway, with an eye to the 2010 election.

My concern today is with representations made by Justice Young, who  (like Justice Taylor), maintains he is not a judicial activist.  Yet, he has been part of a majority that overturned precedent in this state with breath-taking frequency.  This is a special concern to me after reading the article he wrote back in 2004 for the Texas Review of Law & Politics, entitled:  State Jurisprudence, The Role of the Courts, and the Rule of Law:  The Federalist Society:  Panel II:  A Judicial Traditionalist Confronts the Common Law (multiple colons appear in original).

I was raised from a pup believing that our state and federal legal system was based on the common law system, one inherited from the English, several hundred years ago.  Learned later that the civil law tradition is followed only in Louisiana, based on it once being a French possession.

Here is the description of the common law our non-activist uses in his article:

"To give a graphic illustration of my feelings on the subject, 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."

EVEN A VERY GOOD JUDGE CAN HAVE A BAD DAY

Last month an attorney in our office had an early morning settlement conference with a judge in a local Michigan Circuit Court.   This judge is hard-working, always well-prepared, and renders well-reasoned opinions and rulings on matters before him.

Therefore, as our attorney sat down in the judge's chambers, he was surprised to be greeted thusly:  "We are not going to settle this case.  I know what you (our guy) are doing.  Someone has to stop this.  If you keep filing these cases you are going to have to try them."  There had been no discussion of settlement.

Our case was a claim for no-fault benefits, and the case evaluation of $20,000 had been non-unanimous.  Therefore, no threat of sanctions for the judge to use as leverage to force a rejecting party to settle.  Thus the judge's bad mood.  (By the way, the plaintiff had accepted the case evaluation.)

Unfortunately now, I am going to have to go into a lot of dull background on Michigan law.  Hope some readers will stick it out.

UNCLE JAY EXPLAINS BLOGS

My good friend and great lawyer, Fred Rosen, directed me to a site called Uncle Jay Explains The News.  The "About" page states: 

"Uncle Jay thinks it’s really, really important for today’s news to be understood by today’s innocent, ignorant and immature minds.

Also children.

“Uncle Jay Explains the News” began in 1995 on a local TV station. It even won an Emmy. Today, Uncle Jay continues his mission on the internet.

Tell all your friends about Uncle Jay so that you can all learn more about the world and figure out what it all means. Then you can explain it to grownups, because they … maybe you noticed … haven’t."

Every Monday Uncle Jay posts a new video about current news.  One of his best pieces is about blogs.  It's a nice reminder to those of us who post our opinions on the internet not to take ourselves too seriously.  That advice might also be of value to certain members of the Michigan Supreme Court who may soon find that it is not as easy to count to four as it used to be.