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ANOTHER GREAT "NON-FRIVOLOUS LAWSUIT"-IFART MOBILE vs PULL MY FINGER

While tort reformers ceaselessly labor to eliminate the claims of injured accident victims (the so-called "frivolous lawsuit"), they remain remarkably silent when fellow businessmen sue each other over perceived damages to their property interests.

Take the recent controversy between two businesses that have advanced Western Civilization by developing competing applications for the IPhone (a device I do not possess).  In much the same way as the X-Ray paved the way to the MRI, the Whoopee Cushion was merely prelude to the modern digital fart-noise making app for your mobile phone.

It seems that several companies were working on this tech breakthrough at the same time (sort of like the World War II combatants trying to develop a nuclear bomb to win the war).  Two came to market, called IFart Mobile and Pull My Finger.  As both names contain common colloquial expressions used to describe a biological function which is not as much fun to identify in an biologically accurate manner (like cutting the cheese, booper, etc.), problems were bound to result when the products came to market. 

IFart Mobile uploaded a video to YouTube (which I am not going to show you) which used a phrase, "pull your digital finger" when promoting its product.  The "Pull Your Finger" app people took umbrage ("umbrage" is not another word for fart, by the way), and demanded compensation for damage to its business interests.  The parties are now in court on the issue.  "Pull My Finger" did not bring the suit.  Actually, our legal system is so business friendly that IFart Mobile sued first to protect its right to use the phrase "pull your digital finger", without any possible claim of trademark violation from the "Pull My Finger" developers. 

I guess it really comes down to a freedom of speech issue.  So, it just proves that when you let businesses have unfettered access to the courts, everybody wins.  Business interests are protected and everybody's First Amendment rights are protected by the good citizens at IFart Mobile. 

It is good to know that we have our freedoms protected, as you can see from the YouTube video I will show you.  It shows how apps like IFart Mobile and Pull My Finger can become "voices" (to coin a phrase) in our democratic process, breaking up a city council meeting.

God Bless America.

ABA BLAWG 100-ATTORNEYBUTLER.NET INCLUDED OUT

The ABA Journal recently came out with its list of the 100 best legal blogs, as chosen by the ABA Journal's editors.   This list has been thrice compiled, and this site, www.attorneybutler.nethas been thrice excluded.  While this snub cuts me to the quick, I am at least in very good company.  Very good local legal blogs did not make the list-Steve Gursten's Michigan Auto Law Blog, Michigan Lawyers Weekly's Michigan Lawyer , Oakland County Circuit Court Judge Michael Warren's fine blog, America's Survival Guide .  Geoff Fieger's Fiegertime wasn't included, either.

The list did include such exhibits as Corporette.  The latest post on this site is entitled Coffee Break: Bean’s Heritage Tote about a new line of tote bags from LL Bean.  The previous post is The Warmth of Silk. I kid you not.  One of the site's sponsors is Jones New York.  This is one of our best, huh?

Well, folks the votes have been cast, the polls are closed and the results are in.  You could vote for up to 10 of the blogs.   So, I was a bit surprised that only 3 blogs received more than 300 votes---nationally!  The vast majority received less-a lot less.  The leading vote-getter in the business blog category collected a whopping 68 votes.  By the way, there is some justice, Corporette, received only 64 votes in the Lighter Fare category.

Well, it appears that legal blogs have not taken the legal world by storm quite yet. 

I think I'll survive not being listed in the Blawg 100.  I'd hate to think that some year I might nudge Corporette off the ballot.

UPCOMING MEETINGS OF THE SHAMROCK BAR ASSOCIATION

The Detroit Catholic Central Shamrock Bar Association is pleased to announce meetings on March 16 and May 11, 2010, featuring, as guest speakers, two prominent members of the Class of 1980.

 
The first, on Tuesday, March 16, will feature Andy Dillon '80, Speaker of the Michigan House of Representatives, as our special guest.  Andy is the son of Judge John "Jack" Dillon '44, and Andy's name has been prominently featured, in recent weeks as a possible Democratic candidate for Governor.

The event will begin with Mass at 6pm, followed by a casual dinner and social hour.  The program will begin at 7pm.

 

The Association will also present two of the Hon. Richard Hathaway Distinguished Lawyer Awards at this meeting.

 

 

Our second meeting of 2010, Tuesday, May 11 will feature Michigan Attorney General  Mike Cox,  Republican candidate for Governor of the the State of Michigan.

 

Because the Shamrock Bar Association was a group so long delayed in the formation, it will also  present two of the Hon. Richard Hathaway Distinguished Lawyer Awards at the May meeting.

 

Having two meetings before the end of the school year will give the Association an opportunity to develop a proposal for the sponsorship of a mock trial team at CC next year.  I hope to discuss this with school administration before the March meeting and present details to Association members at that time.  Anyone interested in assisting in this project, or about the Shamrock Bar Association and its events, can contact Mike Butler at 734-776-0231, or by email at mbutler@twmi.rr.com .

 

 

GEOFF FIEGER HAS A BLOG-AND I DON'T HATE IT

My clock radio is set to wake us up to WWJ Newsradio 95 every morning.  This does not tempt us to fall back asleep.  Not a lot of fluff and feel good stories at 5:30am.  This was especially the case on Thursday, January 28, when I heard that Geoffrey Fieger was considering a run for Governor of the State of Michigan.  There were a few sound bites from Geoff in which he trivialized every Republican candidate.  It appears that hyperbole is not just for tort reformers.

I have never been a big fan of Mr. Fieger's.  I am sure my opinion, if he learned of it, and if he even knew who I am, would cost Geoff no sleep at night. 

Frankly the theme of this post was to be Geoff's potential as a candidate for Governor.  Unfortunately, I could not locate those WWJ sound bites again, and I couldn't find anything on the story during a short tour of the internet.  However, I did find Geoff Fieger's blog, FiegerTime.  I was prepared to hate it.  Blogs are the perfect medium for ill-informed rants (present blog excepted, of course).  What better vehicle for Geoff Fieger.

However, the blog is not bad.  I think he writes it himself: "....corporations have gotten pro-business judges elected in numerous States".  (have gotten?  not the greatest wording, but a nice, common touch).  I find a I agree with a lot of what Mr. Fieger says, for instance:

"I don’t care if we elect a Republican or a Democrat so long as they are not insane. By that, I mean insane as defined by doing the same things and expecting different results. The next Governor of Michigan will have to be Roosevelt (Teddy AND Franklin) – someone who can break up the corporate stranglehold on government and really represent the interests of working families."

Now, that I like.   And, Geoff's bio lists his favorite quote, which sounds like the battle cry of tort reformers everywhere:

"When you have no basis for an argument, abuse the plaintiff." -Marcus Tullius Cicero

I'll list FiegerTime on my blogroll next time I update it.

PRELUDE TO PODCASTING-EVERBODY HATES LAWYERS

"Good evening, Mr. and Mrs. America, from border to border and coast to coast, and all the ships at sea.  Let's go to press."--Walter Winchell

During 2010, I intend to jump into the podcasting business.  This will be an enterprise, I am sure, that will bring enlightenment and entertainment to, and a boatload of fan letters from, a rapt and adoring audience.  Or not.

Why would a man of my age--and charm, technical ineptitude--and charm, and inexperience--and charm, want to get involved in the broadcasting "game"?  Not sure.  I do have a great face for radio, to use an old joke.  Maybe I want to become a multi-media mogul like Rupert Murdoch.  Maybe because I have a rich, nasal baritone voice that could annoy an audience in a way that my writing cannot. 

Am I motivated by some element of vanity and ego?  Probably.  And irony.  I will love to see the look on my kids faces when I tell them I can be found in the ITunes library.

But I am anxious to try the "radio" approach.  Maybe, as a lawyer, I think I can reach a listening audience with a message (if any), in the way I try to reach a judge or jury through oral argument, opening or closing statement--a way that just doesn't come through in a brief.

Well, we'll see where this takes me.

And though this is contrary to many business models, this enterprise might benefit from some advance thinking and planning.

Here are a few things I'd like to think through as I begin.

GREAT COURTROOM SCENES-DUCK SOUP

Picking up from the previously posted, The Court Martial of Private Harry Speakup, I present this courtroom classic from the Marx Brothers film, Duck Soup.

"I suggest that we give him ten years in Leavenworth or eleven years in Twelveworth."

"I'll tell you what I do.  I'll take five and ten in Woolworth." (pronounced "Woolwoith".)

Sam Waterston, eat your heart out.

MICHIGAN OPEN AND OBVIOUS: A GLIMMER OF SENSE

On January 7, 2010, the Michigan Court of Appeals issued its unpublished opinion in the case of Brown v Eastman Outdoors, Inc. No. 286844.

Mr. Brown slipped and fell on ice at Eastman's business.  He was making deliveries to Eastman at the time.  He injured his knee in the fall, but attempted to continue working anyway.  Ultimately he had to call another driver to finish his route.

Eastman did not, apparently, dispute the existence of ice at the door Mr. Brown used to make his deliveries.  But, as all good Michigan businesses do, it moved for Summary Disposition on Mr. Brown's negligence case, stating that the ice was open and obvious, and so, in spite of any negligence on the part of Eastman, any injury sustained by Mr. Brown was basically his own fault.  He is to blame for attempting to do his job, and not guaranteeing his own safety. 

But, Mr. Brown argued, even though he saw the ice before he fell, the ice was effectively unavoidable because he was told he had to make deliveries at the door where he sustained his accident.  There is indeed a small loophole in the Michigan open and obvious "doctrine" which may preclude dismissal of a case by a judge, if encountering the hazard was "effectively unavoidable".  Unfortunately, most Michigan defendant's get around this by having someone say that there was another door to the business.  Of course, the other door may be an employee's only entrance, or a trapdoor to access the roof, or may be 4 feet wide when the plaintiff is delivering equipment 5 feet wide.  But, generally the bare allegation of another opening in the business does the trick for defendants, and the hazard is held not be be unavoidable.  Case dismissed.  (By the way, it is interesting to note, that in snow and ice cases it is always held as a matter of law that these "alternative entrances" are clear, dry and hazard-free.  How can they know that?)

So it had held by the trial court in Mr. Brown's case. Eastman employees had testified that "plaintiff would have been entitled to make deliveries elsewhere".  The trial court held the hazard was not effectively unavoidable because of the option to deliver to another door.  Case dismissed.

The Court of Appeals looked at the case and said:  Wait a minute.  Plaintiff says he was required to make deliveries at this door.  Defendant says he wasn't.  Isn't that a factual question?  Who is right?  And who is to determine who is right?  And de terming who is right is very important to Mr. Brown's case.  The trial court, without seeing or listening to the witnesses determined, as a matter of law, that the Defendant was right.  Why must the Defendant be right--and right as a matter of law?

Well, in the olden days, in premises liability cases, such issues were decided by juries who listened to all the evidence and made findings on disputed factual issues.  That is there job.  It is not the job of a judge.  This doctrine of Michigan Law is older than the judicially created Open and Obvious "doctrine".

The dismissal of Mr. Brown's case was reversed, and the case will be returned to the trial court for a trial by jury.  At that time, Mr. Brown might win, and he might lose.  However, the mere possibility that a jury might allow Mr. Brown to prevail is a possibility tort reformers want to eliminate.  They want to take that uncertainty out of the corporate profit calculation.

Thanks to Judges Servitto, Fort Hood and Stephens.  They got this one right.  It is but a small step, but welcome nonetheless.

MICHIGAN COURTS "SOWER" ON THE INJURED

With the oral argument of the case of McCormick v Carrier this week, the Michigan Supreme Court will again consider the rights of auto accident victims in Michigan.

Michigan has had its No-Fault Auto Insurance system in place for close to 40 years.  Those statutes require car owners to insure themselves for many accident related expenses, such as medical bills, wage loss and collision damage.  In theory, a car owner's insurance company is required to pay such expenses without regard fault.  If I rear-end you at a red light, my insurance company pays my medical bills and my car repair bills (if I buy that coverage).  My insurance company doesn't pay your bills.  If I total your car and you didn't buy collision coverage, well, it sucks to be you.

But the No-Fault law doesn't get rid of fault entirely, though if you read recent Michigan Supreme Court decisions, you might have your doubts about that.  Michigan law allegedly makes careless drivers responsible for the "non-economic loss" ( for instance pain, suffering, life style change, scarring) caused by an accident.  Such losses really can't be measured by medical bills or repair estimates.  Michigan law provides that a accident victim can try to make a claim for the pain and suffering caused by an auto accident injury, but the injury must cause a "serious impairment of a body function".  That rather vague standard has been the source of legal wrangling ever since it was first written into the law.  By the way, the Michigan No-Fault law requires that drivers carry insurance for such claims.  It also specifies a required level of coverage.  That has always been $20,000.  That level of coverage was set back when we were paying a quarter for a gallon of gas.  That amount of coverage, the Michigan legislature, in its wisdom has decreed, is sufficient to provide injury victims with compensation for "serious impairment" injuries.  Also, often lost in the debate is that this amount of coverage is supposed to protect negligent drivers from the average "serious impairment" claim.  $20,000.

How much is $20,000?  Well referring to a previous post on this site, $20,000 represents less than 5% of the average yearly bonus paid this year to over 31,000 employees of investment companies that were bailed out by US taxpayers.  So, not much.

As recently as three days before this last Christmas, the Michigan Court of Appeals told Michigan citizens what a serious injury was not.  In the case of Sower v Reynolds, et al No. 291691, the Michigan Court of Appeals, in a very short, poorly written opinion, the Judges held that Michael Sower's injuries were so minor that a jury wouldn't be able to decide the issue.  Sower's injuries were not serious.  No question, no issue, no trial.  The constitutional right to trial by jury be damned.

Mr. Sower's injuries?  I quote:

GRAYDON CARTER'S VANITY FAIR EDITOR'S LETTER

Vanity Fair's January 2010 Editor's letter is entitled "Upstairs, Downstairs" .  Written by Graydon Carter, it draws comparison's  between the Gilded Age of the late 1800's United States, and present times.

The Gilded Age was noted for the vast disparities of wealth between the haves and have nots.  Mr. Carter finds much the same situation today, I guess, but with one crucial difference.  Today's Captains of Industry and Corporate Bigwigs can often count on the downtrodden (that is, the average US taxpayer) to bail them out should their collective wisdom lead to financial ruin.

Not that the banks aren't grateful to the assistance.  With reference to investment giants, Goldman Sachs, and J. P. Morgan Chase, and Morgan Stanley, Mr. Carter relates:

"Those  (outfits), all of which received funds from the Troubled Asset Relief Program, will reportedly dole out an unprecedented $29.7 billion in bonuses for 2009, almost half of that by Goldman Sachs alone, meaning it will enrich its 31,700 employees by an average of $415,000 each."

The hand-biting is not reserved to the big investment houses:

"Regular banks—that is to say banks that don’t just place side bets on others’ financial instruments but also deign to take in money and lend it back out—have repaid taxpayers by taking even more from them. Citibank pumped up the interest rate for some credit-card holders to nearly 30 percent, and Bank of America has boosted its fees for a basic checking account by 50 percent. As a whole, the banking industry will take in an estimated $38.5 billion in 2009 just on charges for bounced checks. Indeed, all these myriad little extra fees now account for more than half of the industry’s profits."

Goldman Sachs commands much of the articles attention.  It, like so many big businesses, seems to like the current arrangement.  It sees no need to reform its practices:

"Not ones to rest on their laurels, Goldman and its fellow financial-services-industry companies have put more than $200 million since the rescue into lobbying efforts to ward off any sort of bank reform in Washington. And given how little capital it takes to persuade a politician these days, that’s a lot of arm-twisting muscle. So it looks as if for some, especially at Goldman Sachs, the Gilded Age will continue on its merry way."

Who wouldn't want to preserve a system that uses the consumer and taxpayer to guarantee profits and pay off losses?

To quote the late Judge Kaye Tertzag:  "Great country, America."  Though great for whom may be subject to question...or, maybe not.

CRAIG FERGUSON ON FRIVOLOUS LAWSUITS

A funny clip from that looney Scot, now American citizen, Craig Ferguson, with his take on frivolous lawsuits.

I enjoyed that.  I mean, if you can't laugh at yourself, what can you do?

Go into politics, perhaps.