On-line lawyer rating service says Michigan Lawyer's test drive 'wasn't typical'

By purest coincidence, last Tuesday, the day after I posted The Michigan Lawyer: On-line lawyer rating service hits Michigan, Rebecca Green, who handles public relations for Avvo, the subject of the post, called my editor, Todd Berg, to ask about possible press coverage.

She had not seen the post. Berg referred her to it.

On Wednesday and Thursday, Berg and Green traded e-mails, culminating in the following "Letter to the Editor" by Avvo's CEO Mark Britton, which was e-mailed to Berg. Berg passed it on to me. The letter is reproduced in full below.

To the Editor:

"We here at Avvo are sorry Ed Wesoloski had a negative experience using our service. However, his user experience wasn't typical of the thousands of consumers who visit our site daily looking for legal information and representation. It appears that Mr. Wesoloski has two main issues with Avvo's Michigan coverage: 1) He could not immediately find the attorney profiles he was looking for and 2) the majority of Michigan lawyers do not currently have a numerical rating. Allow me to address each of these issues in turn.

"First, we ran a search and quickly found the profiles of all attorneys Mr. Wesoloski searched for. It is possible that inputting the middle initial of each attorney's name into either the 'First name' or 'Last name' boxes caused Mr. Wesoloski's searches to fail. However, it is important to note that he was able to reach the attorney profiles he was seeking through Avvo's 'similar names' prompt.

"With respect to numerically-rated Michigan lawyers, Mr. Wesoloski should note that Avvo has numerical ratings for nearly four thousand Michigan attorneys - despite the fact that Avvo launched in Michigan only last week. Moreover, it is important for Mr. Wesoloski to put himself in a consumer's shoes. Avvo was built to help consumers, by providing more information and better guidance than they have ever had access to before. From a typical consumer's standpoint - say someone who was involved in an auto accident - we have a wealth of numerically rated Michigan attorneys for the consumer to choose from. For example, a search for a Michigan personal injury lawyer yields 923 numerically-rated lawyers: [search results here]. Before Avvo launched, the typical consumer looking for this type of representation was reduced to sorting through the yellow pages or online search results - basing their decision on who has the biggest ad or who paid the most for a keyword.

"Finally, it's not surprising that Mr. Wesoloski didn't find numerical ratings for Michigan Supreme Court justices or in-house counsel. Avvo concentrates its data entry and ratings efforts on lawyers practicing in areas of most interest to consumers. Let's face it - the typical consumer isn't looking to hire a state supreme court justice or in-house counsel for help with a divorce or business formation!

"Avvo"

Mr. Britton, you've made some fair points. But you have also answered issues I didn't raise while not addressing some that I did.

And when evaluating my previous post, it's equally important to put yourself in a lawyer's shoes.

You've characterized one of my "two main issues with Avvo's Michigan coverage" as being that I "could not immediately find the attorney profiles [I] was looking for." Actually, I was complaining about erratic search results, which included the message, "We did not find any lawyers named ..."

You've suggested that incorrect inputting of the search targets' names may have caused the problem.

Point well taken, to a point.

I used first names and middle initials in the "first name" search field for all three of my searches. Twice I was told lawyers with those names were not found, even though listings for the search targets appeared farther down the page. In one instance, incorrect input did take me directly to the intended search target's listing without the scary (to a lawyer) message, "We did not find any lawyers named ..."

Happily, when I inputted just the first and last names of all three of my test names, Avvo's search engine took me directly to their listings.

It is entirely possible that I am the only person on the planet who will ever attempt to use Avvo's search feature by putting two parts of a lawyer's name in a single search field, but I wouldn't bet the farm on that. Why? Because another lawyer lookup service, the one provided by the State Bar of Michigan, offers only a first and last name field and has a fairly detailed usage note designed to forestall exactly what I did:

"Spelling must be exact, no middle initials, extra spaces, or tabs. If unsure of or unsuccessful with first name search, please use last name field only."

I'm suggesting that similar information on your search page might be helpful. When I got the "not found" messages, I knew to keep looking because I knew the test names were indeed lawyers. But if consumers looking for a particular lawyer happen to goof up the input, they might not get past the "not found" message and draw an incorrect conclusion.

But having said all of this, we'll see, in just a bit, how using a middle initial sometimes produces better results than just sticking to the first and last name only. As I said, my complaint was erratic results.

You characterized my second of "two main issues" as being "the majority of Michigan lawyers do not currently have a numerical rating." This was actually a minor issue. I ran a search and calculated that roughly one in 10 Michigan attorneys had a numeric rating. You've noted that when you launched in Michigan, about two weeks ago, "nearly" 4,000 attorneys had a numeric rating. The State Bar of Michigan's Membership Services department tells me there are nearly 40,000 attorneys eligible to practice in Michigan - 37,600 to be exact. We're still talking roughly 10 percent.

I thought that Michigan's legal community, which is the primary intended audience of this blog, might be interested in how many of their colleagues have acquired a numeric rating at this early stage of the game.

Now, about those Michigan Supreme Court justices: I never complained, in my previous post, about the lack of numeric ratings for them.

And, while a typical consumer certainly wouldn't be looking at them to take their divorce, business or personal injury case, a typical lawyer might be curious to see what Avvo has to say about members of the state's top court.

Here's what they would have found on June 24, as of approximately 8 a.m. EDT (all searches were first and last name only except where noted):

Clifford Taylor - "We did not find any lawyers named Clifford Taylor. To help you, we have expanded your search to include lawyers with the last name Taylor." Seventy-nine names were provided, including Hon. Clifford W. Taylor. Viewing his profile revealed this information: "Hon. Clifford W. Taylor has not claimed this profile so information may not be current. Here are similar lawyers that may interest you. These lawyers have claimed profiles and provided up-to-date information." Immediately below this message was the name of Toni Jean Beatty, a Lansing lawyer with an Avvo numeric rating.

Michael Cavanagh - A solitary listing appeared: Southfield attorney Michael D. Cavanagh. A search for Michael F. Cavanagh (note the problematic middle initial, which I included in the first name field) returned the "did not find - we have expanded your search" message. Eight names were provided, including Hon. Michael F. Cavanagh. Justice Cavanagh hasn't claimed his profile, either. Toni Jean Beatty was listed as a similar lawyer.

Marilyn Kelly - Listings for two lawyers named Mary Kelly appeared. A search for Marilyn J. Kelly (note that middle initial) returned the "did not find - we have expanded your search" message. Fifty-eight names showed up on the expanded search, including Hon. Marilyn J. Kelly. She hasn't claimed her profile, and below that message, the name of Livonia attorney Shalini Nangia appeared as a "similar lawyer."

Elizabeth Weaver- The "did not find - we have expanded the search" message appeared. Eight names appeared as part of the expanded search, including Hon. Elizabeth A. Weaver. No "similar lawyers" were listed.

Maura Corrigan - This search took me directly to Hon. Maura D. Corrigan's profile. Like Justice Kelly, Justice Corrigan hasn't claimed her profile. Shalini Nangia is listed as a "similar lawyer."

Robert Young - Listings for three lawyers named Robert Young appeared. Searching for Robert P. Young (there's that middle initial, again) produced 51 listings, including Hon. Robert P. Young. He hasn't claimed his profile and Shalini Nangia is listed as a "similar lawyer."

Stephen Markman - The "did not find - we have expanded the search" message appeared. Four names appeared as part of the expanded search, including Hon. Stephen J. Markman. Toni Jean Beatty is listed as a "similar lawyer."

Six of the seven justices' profiles contained links to "similar lawyers." Let me be very clear: I'm not suggesting anything untoward by anyone, including Avvo, the "similar lawyers" or the justices.

But I'm having trouble understanding how a lawyer can be "similar" to a supreme court justice, particularly so when there is no apparent information on the justice's profile to justify the linkage. And you have to allow for the possibility that a consumer who happens upon this information might make an unwarranted, unsavory assumption.

Postscript: As I was putting the finishing touches on this post, I received a call from Mr. Britton. Some highlights:

I learned that I've been mispronouncing his company's name when he introduced himself. It's Ah-vo. There's no long "a" at the beginning.

Mr. Britton was able to replicate the search results I obtained for Michigan Supreme Court Justice Robert Young. He remarked that Avvo has been in operation in other states for more than a year and that I was the first person to detect this problem. It clearly concerned him, and his feeling was that something in the Michigan database - the "Hon." in front of the judges' names, perhaps? - was skewing the results. I'm confident that his tech team will be taking a look at this.

He was receptive to the idea of putting a note on the search page to educate visitors how to best use the system.

Mr. Britton also spent a long time talking about how Avvo can be a great marketing tool for lawyers, especially small-firm and solo practitioners who would like a presence on the web but don't have the resources to maintain a website.

And about those Avvo numeric ratings: he stressed that the numeric rating is merely one of several tools that consumers can use to evaluate lawyers, and that lawyers can use to distinguish themselves. Peer reviews and client reviews are also part of the package.

It's the truth, I swear (or affirm)

When Catherine Nicole Donkers refused to raise her right hand when affirming she would tell the truth, claiming this would violate her religious beliefs, Washtenaw County Circuit Court Judge Melinda Morris dismissed her claims against her former attorney with prejudice.

The colloquy went like this:

"Court: Are you going to raise your right or not?
"Plaintiff Donkers: No ma'am. It's writ -
"Court: Okay if not then I dismiss your case and you may take it up on appeal.
"Plaintiff Donkers: Ma'am -
"Court: Your case is dismissed.
"Defendant: Thank you, Your Honor.
"Plaintiff Donkers: Ma'am I haven't [had] an opportunity. The same thing . . . happened at the deposition.
"Court: That's right, your case is dismissed.
"Plaintiff Donkers: I didn't have an opportunity to state what my substitute oath would be.
"Court: If you'll - if you'll submit an order -
"Defendant: Your honor, could I have seven days to submit this order?
"Court: You may.
"Defendant: Thank you very much, Judge Morris.
"Plaintiff Donkers: Ma'am, I'm going to object. I haven't been given an opportunity to say what my sub -
"Court: You know what you do when you object, you appeal. You appeal to the Court of Appeals and explain to them why it is you will not affirm that you will tell the truth on a deposition. There is nothing religious about that. There is no basis for any religious objection. The case is dismissed.
"Plaintiff Donkers: I had offered to tell the truth . . . this [is] exactly what I offered to say at the deposition as a substitute for an oath. I've had no problem in any other court in Michigan. I've had no problem in Nevada.
"Court: The record is turned off, so you're talking to the wind here."

Today's pop quiz: Did Judge Morris make the right call?

Answer: It took a split decision in the Michigan Court of Appeals, and denial of leave to appeal on a 4-3 vote of the Michigan Supreme Court to provide the answer, and the answer is "no."

There's a clear statutory command that when swearing an oath to tell the truth, you need to raise your right hand. MCL 600.1432(1) provides, "The usual mode of administering oaths now practiced in this state, by the person who swears holding up the right hand, shall be observed in all cases in which an oath may be administered by law except as otherwise provided by law. The oath shall commence, 'You do solemnly swear or affirm.'"

But under MCL 600.1434, if you are "conscientiously opposed to taking an oath" you "may, instead of swearing, solemnly and sincerely affirm, under the pains and penalties of perjury[]" that you will testify truthfully.

Writing for the majority in Donkers v. Kovach, Court of Appeals Judge Kathleen Jansen, joined by Judge E. Thomas Fitzgerald, succinctly noted, "What is less clear is whether a witness who elects to affirm to testify truthfully must also raise his or her right hand when doing so."

Jansen had little trouble clearing things up.

"The Legislature included the requirement of an upraised right hand in the general rule of MCL 600.1432, but omitted any such requirement from the specific exception of MCL 600.1434. Looking to the more specific statute as we must, [People v Buehler, 477 Mich 18, 26; 727 NW2d 127 (2007)] and construing the omission of the upraised-hand requirement from MCL 600.1434 as intentional, [Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993)], we conclude that the act of raising the right hand is not required to effectuate a valid affirmation under MCL 600.1434. Because Donkers chose to affirm to tell the truth rather than to swear an oath, she was not required to raise her right hand when doing so."

In a nine-page dissent, Judge Jane Markey argued that "the plain text of MCL 600.1432 and MCL 600.1434 read in harmony requires a witness to raise his or her right hand to swear or affirm to tell the truth before testifying." Markey noted that MCL 8.3k "requires that 'in all cases where by law an affirmation may be substituted for an oath,' the 'word "oath" shall be construed to include the word "affirmation"' and 'the word "sworn" shall be construed to include the word "affirmed."'" So, Markey reasoned, the raised-right-hand requirement for taking an oath applies equally when affirming to tell the truth.

Up at the Michigan Supreme Court, a four-justice majority (Justices Michael Cavanagh, Marilyn Kelly, Elizabeth Weaver and Robert Young) apparently saw things Jansen's way and denied leave to appeal "because we are not persuaded that the questions presented should be reviewed by this Court."

In his dissent, Justice Stephen Markman, joined by Chief Justice Clifford Taylor and Justice Maura Corrigan, wrote that Donkers

"is not a law unto herself and cannot unilaterally determine the circumstances under which she will participate in the judicial process and communicate to the judge and the jury that she is a credible witness. Rather, there are rules and procedures - in this instance, having a pedigree of half a millennium or so - by which our system of law seeks to ensure that the truth of matters is discerned in legal disputes. ...
"Typically, witnesses must swear to tell the truth and outwardly communicate their commitment to do so by raising their right hand during the process of swearing. To accommodate those with conscientious objections to such swearing, Michigan law affords an alternative procedure by which witnesses may 'affirm' to tell the truth. MCL 600.1434. For the reasons set forth by Judge Markey, I do not believe that this alternative procedure vitiates the requirement of an upraised right hand. Because plaintiff refused to participate in the legal process by the rules and procedures established by law, I do not believe the trial court abused its discretion by dismissing plaintiff's lawsuit."

Markman complained that while Donkers cited religious reasons for not raising her right hand, and was given

"ample opportunity for plaintiff to explain her objections to affirming to tell the truth with her right hand raised, plaintiff offered no explanation for her refusal to act in accord with the law other than vaguely claiming that she holds contrary 'religious beliefs.' Yet, plaintiff entirely failed to specify the nature and source of these beliefs. Thus, it is not only impossible to know whether plaintiff's 'free exercise' of religion is truly implicated here, but it is impossible to know whether either plaintiff's insistence upon affirming, rather than swearing, or her refusal to raise her right hand, was truly a matter of 'conscientious opposition,' as is required by MCL 600.1434."

Apart from what the statutes may or may not require, the traditionalist in me likes to see that right hand in the air. But from an intellectual standpoint, as long the witness says something to acknowledge an understanding that truth must be told, it shouldn't matter whether the right hand goes up, or the left or neither - whether swearing or affirming.

As a practical matter, it might be more effective to have the judge remind each and every witness in open court that the truth is expected, the penalty for lying is incarceration, and have the witness acknowledge this information.

Then, we should demand that prosecutors actually enforce the perjury statute on a non-selective basis.

NLADA report paints ugly picture of state's public defender system

A year-long study of the public defender systems in 10 Michigan counties concludes that not one of them is providing constitutionally adequate services.

The title of a report prepared by the National Legal Aid & Defender Association (NLADA), A Race to the Bottom: Speed & Savings Over Due Process: A Constitutional Crisis, says it all. Executive summary here.

Attorney-client conferences taking place in unisex public restrooms. Arraignments moving so fast that the locals in one county refer to the sessions as "McJustice Day." Prosecutors offering plea deals for time already served before the accused even sees an attorney. Appointed counsel asking the cops to investigate clients' cases rather than doing the gumshoeing on their own. Lawyers groveling before judges to keep a steady stream of appointments coming their way. Flat fee contracts that set up conflicts of interest between zealous representation and the bottom line.

Welcome to the nightmare world of Michigan's public defender system, according to the NLADA report.

The report doesn't reveal anything that Michigan's criminal justice community doesn't already know: defendants who are broke get short shrift by an overwhelmed system that is short on cash and supervision.

It's the rest of the state that needs to get on board. And there are good reasons to do that. From an NLADA fact sheet:

"Every Resident Impacted - The ripple effect of this broken criminal justice system is far-reaching and extends to every Michigan resident. By failing to meet its responsibility for funding and overseeing a vital part of the justice system, the state is wasting taxpayer money and endangering public safety.

"Fiscally Irresponsible - Taxpayers shell out millions of dollars to foot the bill for delays, mistakes and lawsuits that result from the broken public defense system. One such lawsuit forced the state and Wayne County to pay out more than $4 million to a man who had been wrongfully convicted.

"Public Safety at Risk - In recent years, several wrongful convictions have come to light, exposing the state's failure to provide for a functioning justice system that keeps communities safe. The impact extends far beyond the defendant: when an innocent person is imprisoned, the real criminal remains on the streets."

There's reason to believe that we'll see some steps in the right direction. The Legislature asked for this report, presumably knowing full well what the conclusions and recommendations would be. And the NLADA's number one recommendation is to begin legislative hearings "to address current funding and oversight failures in order to begin to create a fair and efficient system that protects the welfare of all Michigan residents."

There are no easy, quick fixes.

But trying to sweep the public defender mess under the carpet will only leave a large, easy-to-see, completely unconstitutional lump.

On-line lawyer rating service hits Michigan

Avvo.com, an on-line lawyer rating service that premiered to mixed reviews (here, here and here) last June, and weathered a class-action lawsuit filed by attorneys who took issue with their ratings, now includes ratings for Michigan (and Wisconsin) lawyers.

From Avvo's press release last week:

"The new ratings and profiles are immediately available for consumers to view and for lawyers to claim and update for free. Avvo is now available in 15 states and the District of Columbia, and covers approximately 70 percent of licensed attorneys across the country.
"Avvo offers consumers more information and better guidance regarding lawyers and legal issues than has previously been available in one place. Avvo rates and profiles every lawyer, with Avvo Profiles including attorneys' practice areas, work experience, industry recognition, and disciplinary sanctions. Avvo also aggregates and displays client reviews submitted by consumers and peer reviews submitted by attorneys."

How does Avvo calculate its ratings for lawyers? From Avvo's website:

"The Avvo Rating is our effort to evaluate a lawyer's background, based on the information we know about the lawyer. The rating is calculated using a mathematical model that considers the information shown in a lawyer's profile, including a lawyer's years in practice, disciplinary history, professional achievements and industry recognition - all factors that, in our opinion, are relevant to assessing a lawyer's qualifications.
"For some lawyers, the only information we have been able to collect is the publicly available information from state bar associations or other organizations that license lawyers. If that is all we have, then we display an Avvo Rating for the lawyer of either 'Attention' or 'No Concern.' We display the 'Attention' rating if there is information in the licensing records that, in our opinion, you should pay attention to, such as a disciplinary action against a lawyer without offsetting positive information. Otherwise, we display the 'No Concern' rating."

So, how useful is Avvo? I tried popping in the names of a few Michigan attorneys, selected by the highly scientific method of flipping the pages of the Michigan Bar Directory with my eyes closed, stopping and pointing my finger.

I used the "Lawyer Name" search tab on Avvo's home page. There are fields for first and last name, plus a city, state or zip code field. In each case, I used first name and middle initial, if any, last name and "Michigan."

The results were erratic.

For instance, searching for Douglas J. Donaldson, of the Donaldson & Bieganowski firm, produced this from Avvo: "We did not find any lawyers named Douglas J. Donaldson. To help you, we have expanded your search to include lawyers with the last name Donaldson." But, curiously, under this "no find" advisory, his profile was listed nonetheless, with a "No concern" rating. Clicking his profile revealed this information: "23 years since Douglas J. Donaldson was first licensed to practice law in MI," no disciplinary actions, practice areas unknown.

Searching for Stacie R. Behler, listed in the bar directory as "Vice President Public Affairs Meijer Stores," produced the same "no find" advisory. But, like Donaldson, Behler's profile was listed below the advisory. Here's her information: "13 years since Stacie R. Behler was first licensed to practice law in MI," no disciplinary actions, practice areas unknown.

A search for Robert C. Ketola, Robert P. Ketola & Associates, did not produce a "no find" advisory (as should have Donaldson's and Behler's). Clicking Ketola's profile lets you know: "11 years since Robert C. Ketola was first licensed to practice law in MI," no disciplinary actions, practice areas unknown.

Hmmm.

None of the lawyers I searched had a numeric Avvo rating. In fact, it was not that easy to find a lawyer that had a numeric Avvo rating. I searched for every lawyer with the last name "Smith" in Michigan. Avvo returned 276 listings, and by my count, roughly ten percent had a numeric rating.

Hmmm. Hmmm.

Then, just for grins, I tried each of the Michigan Supreme Court justices. A search for Chief Justice Clifford W. Taylor produced the now-familiar "We did not find any lawyers named ..." But there was a profile listing for him. There were "no find" advisories but profile listings for Justices Elizabeth Weaver, Robert P. Young and Stephen J. Markman.
A listing appeared for Justice Michael F. Cavanagh. A search for Justice Marilyn Kelly took me straight to two lawyers named Mary Kelly but did not advise me there was no listing for Marilyn Kelly.

Hmmm. Hmmm. Hmmm.

Justice Maura D. Corrigan's search produced the most curious result. Avvo advised that "Hon. Maura D. Corrigan has not claimed this profile so information may not be current. Here are similar lawyers that may interest you. These lawyers have claimed profiles and provided up-to-date information." The "similar lawyers" (only one was listed) was Shalini Nangia, a Livonia attorney with 7.4/10 rating. I searched both Corrigan's and Nangia's Avvo profiles in vain for something that would justify Avvo's "similar lawyers" linkage.

Hmmm. Hmmm. Hmmm. Hmmm.

Looks like the Avvo folks have a little work to do.

Removal of Ingham judge from office caps busy week for the MSC

The top tier of our "One Court of Justice" has made a lot of waves in the last few days.

Moments ago, the Michigan Supreme Court removed suspended Ingham County Circuit Court Judge Beverley Nettles-Nickerson from office, effective immediately. Justice Weaver concurred in the removal but dissented from the majority's imposition of $12,000 in costs against the former judge. The following misconduct was the basis for the removal:

"(1) Respondent twice made false statements under oath in connection with her divorce proceeding (Count I);
"(2) Respondent made and solicited other false statements while not under oath, including the submission of fabricated evidence to the Judicial Tenure Commission (Count II);
"(3) Respondent improperly listed cases on the no-progress docket (Count III);
"(4) Respondent was absent excessively and engaged in belated commencement of proceedings, untimely adjournments, and improper docket management (Count IV);
"(5) Respondent allowed a social relationship to influence the release of a criminal defendant from probation (Count VI); and
"(6) Respondent recklessly flaunted her judicial office (Count IX)."

Full opinion here. Copy of the Judicial Tenure Commissions report and recommendation referred to in the opinion here.

Yesterday, in a major workers' comp case, Stokes v. Chrysler, Justice Stephen Markman, writing for a 4-3 majority, raised the bar for claimants to establish a disability.

On Wednesday, three opinions from the Michigan Supreme Court:

In People v. Ream, Markman wrote a 5-2 decision that approves, in felony murder cases, convictions and sentences for both felony murder and the predicate felony.

Justice Marilyn Kelly, writing for a rare unanimous court in Kuznar v. Raksha Corp., announced that a pharmacy, which dispensed an allegedly incorrect prescription through a clerk who wasn't being supervised by an on-site licensed pharmacist, cannot be sued for medical malpractice but can most definitely be sued for negligence. The ruling gave the plaintiff in the case a longer statute of limitations.

Justice Robert Young was heard from in Mich. Dep't of Transp. v. Tomkins. Young's 4-3 decision held that when computing just compensation for property taken for a road construction project, a statute that precludes compensation for the aggravation and inconvenience caused by the construction does not offend the Michigan constitution.

Also on Wednesday, the court removed Kathryn George as the chief judge of the Macomb County Probate Court. George remains on the probate bench. Former Macomb County circuit and probate court judge, the Hon. Kenneth Sanborn, was named acting chief judge. Part of his job will be to make peace between George and Judge Pamela O'Sullivan, who was the court's chief judge until the MSC replaced her with George.

The order removing George contains a long statement by Justice Elizabeth Weaver, which reiterates her view that George should never have been appointed as chief judge in the first place.

'Allez cuisine!' Judges swap robes for aprons at cooking contest

They dish out justice every day, but on June 10, select Michigan judges dished out something else.

The inaugural Culinary Challenge — a benefit for the Women Lawyers Association of Michigan Foundation (WLAM Foundation) scholarship fund, Alternatives for Girls and Crossroads for Youth — brought district, circuit and appellate court judges to the Oakland County home of Michigan Court of Appeals Judge Elizabeth Gleicher and attorney Mark Granzotto.

It was the successor to WLAM Foundation’s two-decades-old women-lawyers-vs.-women-judges charity softball game, which had waned in participation in recent years.

And Michigan Supreme Court Justice Marilyn Kelly called it a more ideal alternative to running the bases. “We [judges] always lost,” she said. “We even brought in ringers, and we still lost.”

Although she was there to support her fellow judges, Kelly did, however, have to forfeit directly competing. She was hoping to present her “Oatmeal Delight” to the crowd, but had to arrive empty-handed because the recent metro Detroit power outage put her kitchen out of order.

No matter, as there was more than enough bite-sized samples to go around, and there were no rules against “buying” votes. Quite the opposite, as attendees — including attorneys — could purchase as many voting tickets as they wished, then dispense them into the bags that corresponded to the dish of choice.

In the end, the “World’s Ugliest Brownies” were the winner. The soft, gooey, walnut-speckled treats came courtesy of the Hon. Denise Langford Morris of Oakland County Circuit Court.

To paraphrase a sports adage, they may have been ugly, but a win’s a win.

Thanks and a tip of the hat to Michigan Lawyers Weekly Associate Editor Douglas J. Levy, who authored this post.

Keeping clients happy: being a great lawyer is not enough

"Lousy service is the number one reason clients fire law firms, and there are dozens of surveys and reports concluding that most lawyers don't do a very good job in this area," says John Remsen, Jr., one of the nation's top legal marketing experts.

It's not enough to be the great lawyer that you are, you need to wow your clients with top-notch service, Remsen explains in the June 2008 issue of the Remsen Report.

Here are a few of Remsen's common-sense reminders, gleaned from a panel discussion with three general counsels:

Timely response to client inquiries - The use of cell phones, blackberries and the internet has raised client expectations about how soon you'll respond to them. A return phone call within 24 hours used to be acceptable. Now, four hours is more like it.

Follow through on commitments - Meet your deadlines. Deliver early, if possible. And if you're going to miss a deadline, it's better to blow the whistle on yourself rather than have the client come looking for you.

Prevent surprises - Lousy news from the court? Higher than average invoice? No one likes a bad surprise, so blunt the impact with some prompt, up-front communication.

Get on the good side of your client's staff - Kindness, courtesy and respect are the watchwords when dealing with a client's support staff. They wield considerable influence, and you never know when or where your paths may cross next.

There's more good stuff from Remsen here.

Hey, what's cookin'?

In court, judges dish it out and attorneys take it.

It'll be more of the same, but with a tasty and altruistic twist, on Tuesday, June 10 at 6 p.m., when Michigan Court of Appeals Judge Elizabeth Gleicher and Mark Granzotto host the 1st Annual Culinary Challenge at their Pleasant Ridge home.

An all-star line-up of trial and appellate judges will be vying for the title of "2008 Judicial Iron Chef" with a tempting array of appetizers and desserts. Here's part of that previously mentioned twist: members of the bar are being invited to sample and judge what the judges are dishing out.

Nicole Wilinski, treasurer of the Women's Bar Association-Oakland County Region of WLAM (Women Lawyers Association of Michigan) and one of the challenge's organizers, has the question of the day: "Now that the tables are turned and the attorneys get to be 'judge,' who will be crowned the 2008 Judicial Iron Chef?"

I put that very question to Michigan Supreme Court Justice Marilyn Kelly, one of the contenders for the judicial cooking crown. Kelly's response: "I'm bringing 'Oat and Almond Delight' to the competition. It's a recipe from my 101-year old mother. How can I miss with that?"

I think we've identified the challenge's sentimental favorite.

Now, here's the rest of the twist: the culinary challenge is not just about winning the coveted Iron Chef award. Wilinski explains that "in addition to raising money for several deserving charities [WLAM Foundation Scholarship Fund, Alternatives for Girls, and Crossroads for Youth], this fun and casual event provides a relaxed venue for networking with members of the bench and bar."

Each participating judge has been advised to bring enough food for 125 people to taste. This is a fundraising event for some worthy charities, folks. Let's hope that number is a huge underestimation.

For tickets or information, contact Wilinski at (586) 563-3500 or nwilinski@kcmlaw.com

In the jungle, the mighty jungle ...

"A lion that waits near a watering hole hoping that a herd of antelope will come to drink is not engaging in conduct directed at a victim. However, a lion that sees antelope, determines which is the weakest, and stalks it until the opportunity arises to attack it engages in conduct directed at a victim. Contrast that with an individual who intends to shoplift and watches and waits for the opportunity to commit the act when no one is looking. The individual has not directed any action at a victim."

Michigan Supreme Court Justice Marilyn Kelly, explaining what constitutes "preoffense conduct directed at a victim" for the purpose of assessing points for predatory conduct under sentencing guideline offense variable 10.

Cannon and a couple of his buddies waited in a stolen pickup truck until all of the customers in a nearby Burger King cleared out. The trio went inside. Cannon acted as the lookout while the other two disguised themselves, brandished a gun and almost made off with cash from the store safe. An employee hiding in a walk-in freezer called the cops, who arrived quickly and captured all three a short time later.

The prosecutor argued that the three engaged in predatory conduct by scoping out the restaurant, waiting until the customers were gone, then going in and committing the robbery. This was conduct worthy of a 15-point assessment under OV 10 (exploitation of a vulnerable victim), the prosecutor urged. The trial court and Court of Appeals bought the argument.

But in doing so, wrote Kelly, the lower courts used the wrong test to determine whether the conduct was predatory. Here's what lower courts need to look at:

"(1) Did the offender engage in conduct before the commission of the offense?
"(2) Was this conduct directed at one or more specific victims who suffered from a readily apparent susceptibility to injury, physical restraint, persuasion, or temptation?
"(3) Was victimization the offender's primary purpose for engaging in the preoffense conduct? If the court can answer all these questions affirmatively, then it may properly assess 15 points for OV 10 because the offender engaged in predatory conduct under MCL 777.40."

Kelly announced the test on behalf of a 6-1 majority in People v. Cannon.

Justice Cavanagh, concurring in part and dissenting in part, quibbled with the majority's decision to remand the case so the trial court could apply the three-part test.

"Now that we have clarified the proper interpretation of OV 10, I would review the record in this case to determine whether there was evidence that defendant exploited a vulnerable victim. Our determination of this issue is not only authorized, but prudent. We have the same record evidence before us that the trial court will have on remand; moreover, our application of the proper interpretation would serve as useful guidance for the bench and bar."

A kernel of truth?

"I'll not have you repeat lawyer’s gossip. I'm a lawyer myself and I know what it's worth."
A Man for All Seasons
Act I
Robert Bolt

But sometimes a gossip item may have a kernel of truth, so read on.

The party invitations from freshly acquitted Geoffrey Fieger to the jurors who found him not guilty of federal campaign finance charges were barely out of his lips yesterday afternoon when the Lansing rumor mill went into overdrive.

Oddly enough, the renewed chatter was about who will oppose Michigan Supreme Court Justice Clifford Taylor in November.

Earlier speculation that Democrats are on the verge of naming Marietta Robinson as their Michigan Supreme Court candidate to run against Taylor was repeated.

Others wondered about Wayne County Circuit Court Judge Deborah Thomas and her efforts to build a groundswell of support for a spot on the MSC judicial ballot

But top honors go to this murmured flight-of-fancy: now that Fieger is off the hook, he can fire up dormant but ready-to-go machinery to take Taylor head on.

Quit laughing. Or crying, as the case may be.

A couple of weeks ago, while Fieger's case was still being tried, a friend of mine told me that he took a dinner-time call from a pollster. The topic was the upcoming Michigan Supreme Court election.

At one point, he was asked to choose between Taylor and several hypothetical candidates.

One of the match-ups was Fieger v. Taylor.

Someone out there has thought about this and is interested enough in the public's response to spend money to get the answer.

This could get interesting.