Michigan Lawyers Weekly names Up & Coming Lawyers

Congratulations to Michigan Lawyers Weekly's 2007 Class of Up & Coming Lawyers!

• Rachel Bissett: Fresh out of law school, this attorney helped Gordie Howe, "Mr. Hockey," resolve a civil stalking suit against his neighbors.
  
  
• Marla A. Linderman: If there's a wrong, no obstacle can stop this crusading young lawyer from making it right.
  
  
• Rolf E. Lowe: This Royal Oak attorney is bridging the gap between health care and labor law, forging a path in a newly emerging practice area.
  
  
• Mark C. Rossman: The challenge of complex litigation plus total client dedication equals a winning combination for this partner of a Troy firm.
  
  
• Michael J. Willis and Shaun P. Willis: Steadfast faith in Jesus Christ is the heart of the young brothers' livelihood - a growing business law practice, loving families and the need to give back.
  

Read their profiles in the Nov. 19 issue.

COA tackles a flawed presidential primary law

The Michigan Court of Appeals today will try to straighten out the legislatively created mess of Michigan's perhaps-Jan. 15 presidential primary.

Ingham County Circuit Court Judge William Collette struck down the primary law last week, ruling that it gives the Michigan Democratic and Republican parties an unconstitutional freebee. The political operatives get exclusive access to information about those who would participate in the primary, and, don't have to pay one red cent for it.

In an order released yesterday, the COA has ordered all interested parties to file briefs by 10:00 a.m. this morning. Oral arguments are scheduled for 1:30 p.m. before Chief Judge William Whitbeck, and Judges Patrick Meter and Donald Owens in the Hall of Justice in Lansing.

The court also has ordered Secretary of State Terry Lynn Land to file and serve affidavits by 5 p.m. today on participating party organizations - Democratic Chair Mark Brewer and Michigan Republican Chair Saul Anuzis - that describe whether their respective parties will use some other method than the primary results to select delegates for their national conventions.

If neither party will use the primary results, under MCL 168.613a, the primary must be canceled. Interestingly, under the statute, the Secretary of State, by 4 p.m. Nov. 15

shall determine, based upon the information provided by the participating political parties under this subsection, whether the participating political parties in this state will be using a method other than the results of the January 15, 2008 presidential primary to select delegates to their respective national conventions to nominate a candidate for president of the United States in 2008.

The Michigan Information & Research Service is reporting that Democratic Chair Mark Brewer yesterday, as the statute requires, told the Secretary of State his party will use the primary results if Judge Collette's ruling is overturned and the Republicans agree to use the primary results.

This is a sorry state of affairs, for which the blame should fall squarely on the shoulders of the partisan and elected nincompoops who brought the flawed primary law into being with a built-in political boondoggle.

Time to target lawmakers' hunting break

There's a lot of important work that won't be accomplished in Lansing for the next couple of weeks.

And you can thank the Legislature's annual November hunting/Thanksgiving break for that.

As Laura Berman so puckishly points out in her Detroit News column, the break doesn't have very much to do with legislators heading for the woods and bringing home the venison. Very few have even acquired a hunting license. Some of the non-hunters justify the break as an opportunity for some grassroots work with constituents, or to spend time with families.

Well and good, but this year in particular, the lawmakers' extended break from sessions in the Capitol should give us all plenty to be steamed about.

Unfinished business on an important business tax remains unfinished.

There will be no work on a legislative remedy for the much-battered Jan. 15 primary election. The battle instead moves to the Michigan Court of Appeals in the wake of an Ingham County Circuit Court ruling that declared the primary law unconstitutional in its current form.

The Kreiner fix bill will continue to bob around in the backwaters of the Senate Judiciary Committee. A measure to repeal Michigan's drug immunity law will languish on the Republican side of the aisle.

Some would say these two measures would continue to be ignored even if the lawmakers were actually earning their keep between now and the end of the month. Those who say this would be right. Those who say it's high time to get going on this legislation would be especially right.

In the meantime, a citizens' group is planning organizational meetings in Clarkston this week to push for a petition drive to make official what seems to be the current state of affairs - a part-time Legislature. They need 300,000 signatures to put a proposal on the November 2008 ballot. Plans call for a 90-day limit on session days, dropping the number of lawmakers from 148 to 100, no life-time health benefits, frozen salaries and an extension of term limits for some elected officials.

Throw in a ban on the hunting break and I'll be the first to sign.

A Pakistani strongman thumps the legal system: a courageous response

"The first thing we do, let's kill all the lawyers."
- Dick the Butcher
Henry VI, Part II, Act IV, scene ii

A laugh line with which Shakespeare shares with his audience his supposed contempt for attorneys?

The Bard's recognition that the path to tyranny is best paved with rubble from a wrecked legal system?

There's room for debate about Shakespeare's motivation for penning this line for a script written over 400 years ago.

But it's beyond debate that when you have the raw power to muscle aside judges and lawyers, you have the stage to yourself and the only script that need be followed is the one you write.

That's how it's being played out in Pakistan, where President Pervez Musharraf declared a state of emergency a week ago to "curb extremism." This included placing the country's Supreme Court chief justice under what amounts to house arrest. Critics say this was done to thwart a ruling on the legality of Musharraf's re-election last month while he was (and still is) the chief of the Pakistani Army.

Hundreds of normally staid Pakistani lawyers took to the streets. Police beat them, gassed them into submission and hauled them away.

A half a world away in the United States, attitudes about the legal system are frequently shaped by a "whose-ox-is-being-gored" mentality. Whether lawyers are loved or loathed is often dependent on the result produced, and for whom.

But what if everyone's oxen are being gored by a government strongman?

And a nation's lawyers risk life and limb to tell him he's wrong.

Their courageous stand for the rule of law commands respect and admiration.

Update 11/13/07: State Bar of Michigan President Ron Keefe has issued a statement supporting Pakistani lawyers who have protested against the shutdown of that nation's legal system.

Mail or e-mail? Ingham judge will decide union contract vote issue

A labor pact between Michigan State University and over 1,700 members of the Administrative Professionals Association is on hold until Ingham County Circuit Court Judge Paula Manderfield decides whether APA officials were authorized to conduct a ratification vote by e-mail.

Judge Manderfield enjoined enforcement of the union-approved contract last week after some members complained that APA bylaws require voting by mail, not e-mail.

A hearing is scheduled for Nov. 15. The Lansing State Journal has the story.

Bankruptcy filings soar, conference will cover client issues

From the American Bankruptcy Institute comes word that October consumer bankruptcy filings were the most ever since the Bankruptcy Code was revised two years ago.

Filings increased to 75,975, up 10 percent from the previous month. Chapter 13 filings accounted for almost 40 percent of the total and could go higher if Congress passes legislation that would let consumers use bankruptcy to write down their mortgages to avoid foreclosure, says the ABI.

It's a good time to bone up on the new code, and the ABI and the Detroit Consumer Bankruptcy Association have just the thing: a Nov. 12 conference at the Detroit Marriott Troy designed especially for Michigan-area bankruptcy practitioners.

Program sessions will include: Means Test Calculating; Litigating the Presumption of Abuse under Section 707; Secured Claims in Chapter 7 and 13; Mock Appellate Argument: "Projected" Disposable Income Issue; New Options When Facing Foreclosure; Consumer Case Management for Debtors' and Creditors' Attorneys and a Judges Panel.

Click here for more information and a link to register.

Shocking evidence: Oakland County program helps jurors with trial trauma

Television police dramas routinely feature gruesome crime scenes and postmortems performed in the clinical hush of the autopsy lab.

The small-screen version of violent crime and its gory aftermath is portrayed with a graphic frankness that most of us absorb without blinking. We remind ourselves that it's just actors playing corpses, assisted by skilled makeup artists and remarkably realistic special effects. We sometimes wish they weren't quite so good at their craft.

But the storyline and the actors playing the detectives, scientists and suspects are intriguing. We get frequent breaks to focus on other things, like the newest cars, fashions and personal care products, or to make two-minute runs to the bathroom and the fridge.

All of this helps us overcome our natural aversion to blood and gore and to instead accept it as entertainment. And if we can't handle it, there's always something else to watch.

In the harsh reality of a criminal courtroom, however, the blood and gore are not illusions. The crime-scene and autopsy photos are real. The testimony is real. The dead, the survivors and the horrific details, are real.

And the everyday citizens drafted to be jurors can't change the channel.

In Oakland County this week, reports the Detroit Free Press, a jury will hear a case in which the defendant is accused of shooting his ex-girlfriend in the head while she was sleeping with their baby. He then allegedly returned to scene, soaked the bed with gasoline where the dead woman and the still-alive child lay and set it on fire, killing the child.

Jurors in that case, however, will have the benefit of Oakland County's Juror Debriefing Program. Run by the Common Ground Sanctuary in Royal Oak, trained counselors will be available to help jurors who want help coping with the stress and trauma of dealing with disturbing evidence.

For years, Common Ground has provided assistance to individuals and families in crisis. Program coordinator Margo Eby, writes the Free Press's L.L. Braiser, felt that "[h]elping jurors seemed like the next logical step."

Juror debriefing programs are becoming a national trend as more and more jurors report stress and trauma associated with hearing emotionally grinding cases. The National Center for State Courts has been researching the problem and has a reading list available.

Voter photo ID law gets first test next Tuesday

Michigan's not-so-new law requiring voters to show photo identification gets its first test this Tuesday, Nov. 6, in local elections around the state.

The long, conflicting road to a photo ID law The law was one of several 1996 amendments to the Michigan Election Law. Before the law took effect, then-Attorney General Frank Kelly issued an opinion, in which he said the photo ID requirement violated the Equal Protection Clause. The law lay dormant for eight years. In 2005, it was revived, unchanged, by other election law amendments, effective Jan. 1, 2007. With Frank Kelly's opinion lurking in the background, the House asked the Michigan Supreme Court to answer this question in an advisory opinion: "Do the photo identification requirements contained in 2005 PA 71 violate either the Michigan Constitution or the United States Constitution?" In an order issued in April 2006, on a 5-2 vote, the question the court chose to answer was, "Do the photo identification requirements of Section 523 of 2005 PA 71, MCL 168.523, on their face, violate either the Michigan Constitution or the United States Constitution?" Justice Marilyn Kelly dissented for two reasons. First, the House framed the question too broadly. Second, the question the majority agreed to answer was not the question asked. Justice Michael Cavanagh also dissented. The court issued a 5-2 opinion, which held "that the photo identification requirement contained in the statute is facially constitutional under the balancing test articulated by the United States Supreme Court in Burdick v Takushi." Information from "Michigan's Photo ID Requirement for Voters"

If you don't have such ID, or you do and you left it at home, you can still get a ballot but you must sign an affidavit to that effect.

There's a stiff penalty for lying about the status of your ID, or the lack of one: you could be convicted of perjury, pay a fine of up to $1,000 or spend up to five years in prison, or both.

They're not fooling around.

What's acceptable photo ID? The Secretary of State's office has provided a helpful list.

There's been much speculation about what effect the law will have on voter participation and whether it prevent the evil it was designed to cure - election fraud.

Here's the take of Suzanne Lowe, Michigan Senate Bill Analysis Coordinator, in her article, "Michigan's Photo ID Requirement for Voters." It's in the latest issue of "State Notes: Topics of Legislative Interest."

According to the Secretary of State's office, approximately 370,000 registered voters in Michigan (or about 5.0 percent of all registered voters in the State) do not have either a driver license or an official State identification card. There are no data on the number of voters who also do not have any of the other types of photo ID that the Secretary of State considers acceptable. Of the voters who do have photo ID, there is no way of knowing how many will not bring it to the polls because they forget to or do not know about the law's requirement. It also is not possible to predict how many voters who do not have photo ID, or have it but do not bring it to the polls, will be unable to sign an affidavit because they cannot read or understand the document, or will be unwilling to sign one because they feel intimidated or embarrassed or simply do not want to take the time.

Whether the photo ID requirement actually represents a "barrier to the ballot box," as critics contend, may be known only after the requirement is implemented, and perhaps only after it is enforced during the November 2008 general election. Whether the requirement serves to prevent voter fraud may never be know. Although there have been convictions in Michigan for illegal activity during voter registration drives, there does not appear to be any evidence of the type of in-person polling place voter impersonation that the photo ID requirement might deter. As some contend, this may be because of the difficulty of detecting such activity and catching the offenders. On the other hand, to the extent that such fraud does occur, it is questionable whether the penalty for signing a false affidavit will deter someone who is willing to commit a felony by voting under a false name or impersonating another elector.

Ohio Supreme Court pans Fieger client's $30M verdict

It was the Ohio Supreme Court's turn last week to do what Michigan appellate courts have done several times over the past few years - wipe out a multi-million dollar verdict for one of Geoffrey Fieger's clients.

This time, it was a $30 million jury award for a 20-year-old man who was born with a damaged brain and other serious problems.

The reason the OSC brought the curtain down on the verdict? In part, it was Fieger's "theatrics" in the courtroom.

Now, the trial judge wasn't exactly blame-free either. As recounted by the OSC, the trial judge let Fieger's expert testify, over defense counsel's objection, about medical-care costs far in excess of the figure the expert provided in a written report. And then there was the judge's in-the-hallway off-the-record instruction to jurors, some of whom admitted they saw a newspaper article about the trial. The judge's on-the-spot attempt to unring the bell: he told the jury to disregard what they had read.

When the defense team demanded a new trial, the judge readily agreed. The OSC noted the trial judge's acknowledgement that his miscue with the expert allowed the jury to think about, and award, $15 million in economic damages. And the newspaper article? The judge said he had read it, too, and he could easily see how some of the jurors may have been itching to give Fieger's client a record-breaking award.

Another big influence on the jury, the trial court and the OSC agreed, was the man from Oakland County, Michigan and the way he conducted himself in court.

Some Michigan judges have seen it, said it before Michigan's appellate courts, on occasion, have been extremely critical of Geoffrey Fieger's trial tactics, and have taken him to task for many of the same things discussed in the Ohio courts' opinions. See, Powell v. St. John Hosp., Badalamenti v. William Beaumont Hosp., and Gilbert v. DaimlerChrysler.

The OSC echoed the trial judge's observations that: Fieger was discourteous; there were plenty of theatrics; he interrupted defense counsel; he put his own words into the witnesses' mouths; he mischaracterized evidence to mislead the jury and he brought the forbidden issue of attorney fees into play.

In closing argument, the OSC said, Fieger dwelled on a spoliation-of-evidence claim, even though the trial judge had earlier thrown it out. And he cast the case as an epic struggle between a poor black guy and rich, powerful corporate interests.

In the end, the OSC said the jury did pretty much what Fieger asked: it looked at its $15 million economic damages award on the verdict form and wrote another $15 million in the space for punitive damages.

After the trial judge entered the order for a new trial, the plaintiff's team moved to disqualify him. Apparently, the trial judge had had enough and voluntarily recused himself from further proceedings.

Up in the Court of Appeals of Ohio, Eighth District, the majority and dissenting opinions reveal that none of the judges were concerned about the trial judge's extracurricular handling of the newspaper article. The majority said Fieger hadn't objected and defense counsel apparently had a private chat with the trial judge about the article. They weren't about to reward a claimed error that defense counsel instigated.

The majority characterized Fieger's performance as zealous representation. "While we agree that plaintiff's attorney does not appear in the transcript to be the most likeable person, we do not find that his conduct rises to the level to justify the granting of a new trial." In contrast, the dissenting judge spent 27 pages detailing what she called Fieger's "manipulative trial technique" and "the extent of his outrageous melodrama" in his closing argument, which, she said, was enough by itself to warrant a new trial.

The majority said the defense team was not contesting liability on appeal, only the super-sized verdict. Because there was sufficient evidence to support the jury's liability finding, there was no need for a new trial. The majority conceded that there were problems with the expert testimony on damages. Remittitur would be the correct remedy. And, "the trial court is in the best position to determine whether a damages award is excessive."

The OSC said the appeals court was looking at the wrong thing. It's not about whether there was sufficient evidence to support the jury's verdict. It's all about the trial court being in the best position to determine whether the jury's verdict "was excessive and given under the influence of passion or prejudice" and whether counsel's misconduct "tainted the verdict." The OSC ruled that if there's competent, credible evidence to answer "yes" to these inquiries, as there was in this case, the trial court does not abuse its discretion by ordering a new trial, and that decision "should remain undisturbed."

A dissenting justice sided with the lower appeals court majority on the issue of remittitur.

He also had this to say:

To order a retrial because of the obnoxious behavior of an attorney does our system of justice no favors - such behavior must be dealt with as it occurs, not after a judge decides that a party may have benefited from it.

The verdict should be knocked down to $10 million, the dissenter said. That's a lot closer to the evidence of economic damages.

And he closed with this zinger:

Should the plaintiff refuse the remittitur, he would be entitled to a new trial. Before that trial, it would be wise for the trial judge to deny any motion for admission pro hac vice filed on behalf of Mr. Fieger.

The case is Harris v. Mt. Sinai Medical Center.