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GREAT INSURANCE COMPANY ADS

This one is a little different, with that very restrained huckster, Billy Mays, hawking health insurance.

You can tell Billy really believes in this product, as he is not shouting as loud as he does in most of his infomercials. The man exudes credibility, as shown in this spot for Kaboom (and no, it is not a commercial for AIG).

What better man to sell health insurance than a man that can shout about the virtues of a bathroom tile cleaner. Apologize for the terse post, but it is Wings-Pens, Game 1 night.

SHAMROCK BAR ASSOCIATION MAY 12 MEETING

 

The third meeting of the Detroit Catholic Central High School "Shamrock Bar Association" was held on Tuesday, May 12, 2009 at the school.  The featured speaker for the meeting was the Honorable Robert Colombo, pictured above, of the Wayne County Circuit Court, and member of the class of 1968. The CC class of 1968 has made an extraordinary contribution to the legal community, with over two dozen of its members having gone on to become lawyers or judges.  It was announced at the meeting by retired Wayne County Circuit Judge Richard Hathaway (also a member of the class of 1968), that Judge Colombo will be running for a seat on the Michigan Supreme Court in 2010.

Distinguished Jurist Awards were presented to Judge Hathaway, Judge Colombo, and US District Court Judge Sean Cox '75, who are pictured above, left to right respectively, with Fr. Richard Elmer, CSB.

The establishment, sponsorship and coaching of a Mock Trial Team at CC was also discussed.

An album with just over 200 pictures from the event, can be found here.

The meeting was chaired by yours truly, a member of the illustrious Class of 1971.

 

Any CC alum who would like to receive notices of future meetings can contact me through this site.

MICHIGAN PREMISES LIABILITY CASE-REPORT FROM THE TRENCHES

Colloquy from a deposition I attended last week.  Plaintiff sustained injury after slipping on a patch of black ice.  At the time she had been walking between two cars in a parking lot in order to return to the car where her husband was waiting. The accident happened in second week of April, nearly three weeks after the vernal equinox.  How this date relates, as a matter of law, to the definition of "Michigan Winter" as used in many open and obvious case opinions in Michigan, is, as yet, unknown to this writer. 

The questions and comments of the attorneys, rather than the testimony of the client are set out here.

Q.  Have you lived in Michigan all your life?

Q.  Do you agree that the temperature can go below freezing, even after the end of winter?

Q.  Would you agree that the during the night, the temperature is lower than during the day?

Q.  Would you agree that when it is cold, ice can form on top of water?

Q.  Would you agree that, when it is cold, that areas that appear wet, may actually have ice on top of them?

Q.  Would you agree that, in the early morning, the ground may be colder than the air, even when the temperature is above freezing?

AttorneyButler:  Based on these questions, will your client be withdrawing any notice defense in this case?

Def.  Atty.:  We are not waiving a notice defense.

AttorneyButler:  Then you will be trying to impute knowledge of conditions on your client's premises to my client alone?

Def. Atty.:  We are not waiving the notice defense in this case.

AttorneyButler:  Oh, dear.

MICHIGAN OPEN AND OBVIOUS NONSENSE-BROWN V ALTERRA HEALTHCARE

The unpublished Michigan Court of Appeals decision in the case of Cynthia Brown v Alterra Healthcare Corp. (No. 281352) came down on May 12, 2009.  It is a case involving the "open and obvious doctrine", as applied in Michigan premises liability cases.  The opinion is made up mostly of canned, boilerplate paragraphs.  In this regard, the decision resembles most defense SD briefs on the issue, long on boilerplate, short on analysis.

If we accept the legal requirement that, in ruling on Summary Disposition motions, the trial Courts and reviewing Courts are not supposed to be making findings of fact (the task of the jury; hey, who remembers them?), Ms. Brown fell on a patch of black ice on an otherwise clear sidewalk on a late January day.  She testified the ice was clear, and she did not see it before she fell.  The court also determined that there were piles of snow lining both sides of the sidewalk.  Ms. Brown claimed that the ice came from run-off from an open drainpipe on the defendant's property that drained onto the sidewalk.

Pictures taken a few days later were also part of the submissions to the Court.  The Appeals Court panel ruled, that because they could see a darker spot on the sidewalk, where the ice had been, Ms. Brown should have seen a darker spot on the sidewalk the day of the accident, though she had testified she had not.  The Appeals Court found that she should have.

The Court also pointed out all the subjective factors they normally use to find a fact, as a matter of law, that an invisible condition in one place, is open and obvious, because of the existence of unrelated conditions elsewhere, and because of subjective knowledge, or lack thereof on the part of the injured party.  What happened to that objective standard in Lugo v Ameritech?  Sometimes that standard is not sufficient to serve the ends of dismissal.

ARE MICHIGANDERS REALLY TOO STUPID TO ELECT JUDGES?

The title of this post is paraphrased from a piece authored by none other than that legal and intellectual Titan, Dan Pero, said piece having been run on his blog, American Courthouse, on May 12, 2009.  Mr. Pero's article is entitled,  "Are Pennsylvanians Really Too Stupid to Elect Judges?"  The post begins with this incredible paragraph:

"The Philadelphia Inquirer is out with a slate of judicial endorsements, but not before trashing the idea that judges should be chosen by the people through democratic elections.  Voters, the editors grumble, 'may well apply the usual uninformed criteria' when deciding who to put on the bench.  (And these are the same folks who sit around scratching their heads wondering why newspapers are losing readers in droves – to bloggers, no less – and filing for bankruptcy.)"

The logic of that last sentence is unassailable.  According to Dan Pero, newspaper bankruptcies are directly related to suggestions, by newspapers that  judicial selection procedures might need review.

  The May 8, 2009 Philadelphia Inquirer editorial to which Mr. Pero refers, does not "trash" democratic election of judges.  The editorial, entitled "Judicial Endorsements", does begin by asking what criteria voters might use to choose among the 33 candidates for 11 judicial openings in the upcoming election.  Fair question.  When the editorial states,  "...they (voters) may well apply the usual uninformed criteria that often decide these races: candidates' names, gender, ethnicity, party backing, ballot position, slogan, or advertisements",  I think the paper makes a valid point.

 And I don't think that editorial board of the paper is calling the voters "stupid".  I think even someone as politically astute as Dan might be hard pressed to know everything there is to know about the qualifications of all 33 hopefuls.  Such knowledge must be assumed if we are to accept American Courthouse's belief that pure, unadulterated democratic elections can be the only way to select judges.

The Inquirer doesn't want to get rid of elections.  The editorial states:  "The flawed election process strengthens the case for switching to merit-based judicial appointments, with voters' getting a say through retention elections."

No, no, horrible, horrible says Dan Pero.  All states must have the kind of judicial election system we have here, in the great state of Michigan.  (This last statement does not appear in the May 12 post, but is culled from his many pieces on this subject.  In fact, my suggestions that the Michigan system might possibly be flawed, were called "fringe" by Mr. Pero in one of his articles.  Commentary can be found here.)

TATTOO YOU

"Thus, when my 50-something conservative brother got a tattoo two years ago, it was the day the inking died for anyone approaching cool."--Grand Rapids Press-February 15, 2009

The "50-something, un-cool conservative referred to in the article--yours truly.  The author of the column, my loving older sister, Ruth Butler, long time columnist for the Press.

The good news--if I ever run for office I can truthfully include the following plug:  "Mike Butler has been called a conservative by the ultra-conservative Grand Rapids Press, and it ought to know a conservative when it sees one."  Ought to get me the western Michigan Republican vote.  Maybe Dick DeVos will endorse me.

That reminds me of how the Cliff Taylor campaign kept referring to the Wall Street Journal calling the Michigan Supreme Court the "best in the nation."  (Quotes included in the campaign material.)  In reality, the article was a viewpoint piece written by a former Taylor staffer.  The quoted language didn't appear in the article, and certainly wasn't the result of an empirical study done by the Journal's editorial board.

The bad news--my own sister doesn't read my blog, and I must assume doesn't even know I have written one for nearly two years. If she was familiar with my site, she might retract her "conservative" label.  My views have been described as "fringe" by the esteemed Dan Pero of the American Justice Partnership, a group founded by John Engler, former Republican Governor of Michigan.  The site regularly comments on the gutting of the right to civil jury trial by our Republican led Supreme Court, the stifling of corrective legislation by Republican Senate leader Mike Bishop, and the  hypocrisy of tort reformers, among other light-hearted topics.  Hardly the kind of opinions that will have the Michigan Chamber of Commerce waiving my yearly dues.

What really hurts is the knowledge that my sister thinks I am not cool.  How can she say this about a guy who, as an adolescent, and, knowing all the risks, and defying death, swallowed a whole mouthful of Pop Rocks and washed them down with three cans of warm Coke.  (Only wimps used the cold stuff.)

JUSTICE ROBERT YOUNG'S SOUL-KILLING EXPERIENCE

OH, WOE IS HE

On the "Politically Speaking" page of the April 19, 2009 Detroit FreepNews, coverage was given to a recent meeting of Macomb County Republicans, where former Governor John Engler spoke, returning to the scene of the crime as it were.  He has been chairman and CEO of the National Association of Manufacturers since leaving Michigan, where, you might remember he served as Governor from 1991-2003.  His wife is on the board of Freddie Mac, by the way. Odd, isn't it that those three entities, the state of Michigan, the Nation's Manufacturers and Freddie Mac, aren't doing very well, despite various Englers having turned the light of their respective countenances upon them for extended periods from 1991 to the present.

It was not surprising that Michigan Supreme Court Justice Robert Young, an Engler appointee to that Court as well as the Michigan Court of Appeals was also at the Macomb County meeting.  The following quote from Justice Young is contained in a sidebar of the paper:  "We need to take back the Court because it is a soul-killing experience to go to conference with my new colleagues and see them destroy the law."

Curious.  Justice Young, always a stickler for the plain meaning of language, must have been misquoted.  He has only one new colleague on the Supreme Court this year, that is Justice Diane Hathaway, who defeated Justice Young's textualist fellow traveler Cliff Taylor in November, 2008.

Admittedly, Justice Young probably had more fun on the job when he was one of five Republicans on the bench. He was also a member of a sub-group of four Justices, including Justice Maura Corrigan, Justice Stephen Markman, Justice Clifford Taylor and Justice Young, that re-wrote Michigan Law and overturned decades old precedent at an breath-taking rate over the past dozen years.  Justice Young doesn't believe that he and his fellows were destroying Michigan law then.  They were merely correcting innumerable cases wrongly decided by their ignorant and activist predecessors.

AMERICAN COURTHOUSE-ANALYSIS AREN'T US

American Courthouse is billed as the personal blog of Dan Pero, of the American Justice Partnership.  A personal blog by description, I am persuaded that the content is obtained and posts are written either by the AJP's paid staff or unpaid interns.  This should be taken as a compliment by Mr. Pero, as I do not think he is solely responsible for the simple-minded stuff that appears on his blog.  Of course, while I say this, I also mean that "Ol Dan" really doesn't care much what the blog says, so long as the buzzwords "trial lawyers", "tort reform", and frivolous lawsuits" are contained therein.

Take the latest.  The blog has a post on the annual "Wacky Warning Labels" contest run by an organization, that like all others in the tort law area (including some to which I belong, truth be told), by a title including the words "Fair" and "Justice".  This particular entity is called the "Foundation for Fair Civil Justice", and is run by a man named Bob Dori go Jones (vaguely "Zorro-esque" sounding, don't you think?).

Bob Dorigo explains his contest thusly:  "The contest reveals how lawsuits and the fear of lawsuits have driven companies to spend millions on common-sense warnings." 

On to this year's winner.  An ad for the "Off-Road Commode", includes this language:  "Not for use on  moving vehicles."  Here is a link to the website.  Now no one can seriously argue that sales of the Off-Road Commode must not be restricted in any way if the USA wants to emerge from its present economic crisis.  For those who didn't click on the link, the O-RC is a camouflaged toilet seat (ring only-no cover) that fits on to a vehicles trailer hitch.  No assembly required.  One part only,  One size fits all-vehicles that is, it has a five hundred pound weight capacity.  It is perfect for people on the go, but, apparently people on the go, aren't supposed to go while the vehicle is going.  Now, ain't that a hoot!! Yahoo!!

Now, in keeping with the point of the contest, one would think that the winner must have been forced to include the warning because of countless claims made against the makers by folks getting injured while relieving themselves from the back of a moving vehicle.  Ha-Ha.  Darn them frivolous lawsuits.  Darn them trial lawyers.  We need some more darn tort reform.

Well, the reality is somewhat different.  Take a look at the award video.

 

JUDGE KAYE TERTZAG "PURPLE SPORT COAT" TO BE AWARDED STARTING IN 2010

After Judge Kaye Tertzag's memorial on February 5, 2009, I wrote a blog piece about the ceremony.  Judge Tertzag was known for his collection of rather colorful sport coats, and particular reference was made to a purple one.  At the end of the post I suggested that perhaps there could be an annual award in Kaye's honor, with the recipient being awarded a purple sport coat, something like the Masters winner getting the green sport coat every April.  As I had asked the judge's son, Kyle, for permission to use the picture that appeared in the post, I sent him the piece after I finished it.  He loved the purple sport coat award reference.  Since then the idea has gained support from family members, lawyers and members of the famous "Detroit Contingent" group, which Judge Tertzag led.

I had dinner with the Contingent on April 23rd, and it is hoped that the first Kaye Tertzag "Masters" award will be handed out around or about Law Day in 2010.  Tentative plans include a dinner (first venue the Roman Village in Dearborn, the site of the last Contingent meeting the Judge attended), at which time the award will be handed out.  The purple sport coat and accompanying plaque will be awarded to a person whose character and accomplishments best exemplify those qualities of fairness, courtesy and aptitude Judge Kaye Tertzag displayed throughout his life and career.  It is also hoped that a memorial plaque listing annual winners will displayed at the Allen Park District Court.

So, keep an eye out for further details regarding this event on www.attorneybutler.net, as well as through various listservs, publications, and organizations, legal and otherwise.  If anyone is interested in helping on the selection committee, or working on the ceremony, please contact me at mbutler@twmi.rr.com.   Let's carry on "Chach's" legacy.

MICHIGAN ASSOCIATION FOR JUSTICE PREMISES LAW EVENING FORUM

On Thursday, April 16, 2009 I spoke at the Michigan Association for Justice Premises Law Evening Forum.  My topic was:  "Open and Obvious and Comparative Fault--Arguing Comparative Fault Trumps No Duty Claims."  In the presentation, I set forth my argument that the Open and Obvious "doctrine", as applied, or I should more accurately say, as invented by the Michigan Supreme Court over that past decade and a half, is contrary to Michigan's comparative negligence statute, MCLA 600.2958.  That argument has been the topic of a previous post on this site:  "Open and Obvious in Michigan--The Statutory Argument Against."  That post describes the argument and links to a motion I have drafted on the topic, found here.  The latest edition of the brief, which has not been uploaded yet, and is ever evolving, is available on request.

I like to think that the presentation was well received, by which I mean that no one threw any fruits or vegetables at me during the speech (though such items were readily available at buffet tables immediately outside of the doors to the ballroom).  On the other hand neither was I carried out of the room on the shoulders of an adoring throng of attendees, while they sang "Happy Days Are Here Again." 

A picture of the forum panel was taken by the Detroit Legal News and can be seen here.  Modesty forbids pasting it into this post.  Well, that and the fact that the scanned photo makes me look like part of a police line up taken after an arrest for violating one of the Prohibition Laws-photo taken with period equipment as well.

The battle to restore common sense to Michigan's premises liability law will be a slow one, unfortunately for those, who, in the meantime, are injured due to the negligence of others. The rights of Michigan citizens were not taken away in one day (though some days were worse than others.)

 Till then, the fate of Michigan citizens will continue follow the path that the Michigan Chamber of Commerce and those who depend on its financial support for their election campaigns dictate. 

I wonder how much new business and how many new residents the Michigan Chamber would attract if it employed the following slogan which appears to me to embody its well-funded lobbying efforts:

WELCOME TO MICHIGAN-DON'T HURT YOURSELVES-EVER