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September 2006

Michigan Justice Under Attack By Michigan Supreme Court

Here is a very interesting letter written by a prominent Michigan attorney concerning the continued attack on our jury system by appellate courts.  Do you agree?


Letter to the Editor

Decades ago, Americans were warned of the potential for abuse of power. The warning involved the foreseeable dangers of the rising influence of the military industrial complex:

"We must guard against the acquisition of unwarranted influence by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist."

Perhaps more interesting than the quote itself, however, is its author. The quote is taken from a speech to the American people by our 33rd President, Dwight D. Eisenhower, at the conclusion of his presidency. President Eisenhower was a graduate of West Point and the Supreme Commander of Allied Forces in Europe during the Second World War. He was a moderate Republican, an insider, who knew what he was talking about when it came to war and its costs.

I was reminded of this speech recently while reading about the unusual events taking place in the Michigan Supreme Court.

Supreme Court Justice Elizabeth Weaver, in her published dissents, has been openly criticizing her Republican bench mates for abusing the power invested in them and for bias in their decisions. The justices she has concerns about are Justices Taylor, Young, Markman and Corrigan. All of these justices were appointees of Governor John Engler. Justice Weaver, by comparison, was elected to the probate court, the Court of Appeals and the Supreme Court by the voters.

Justice Weaver is a Traverse City Republican. She is known to be a moderate in the tradition of Michigan Supreme Court Justice James Brickley and Governor William Milliken. These Republicans managed to balance the rights of everyday people with the rights of corporations.

As lawyers and citizens of this great State, we ignore Justice Weaver’s concerns at our peril. We need to be aware of what is going on in our highest court. We need to be sure that the power entrusted to our highest judicial officials is not abused for the benefit of a few special interests to the detriment of this state’s citizenry.

The four justices who regularly vote as a block have characterized Justice Weaver’s attacks as purely personal in nature. However, as lawyers, schooled in the art of analysis and cognizant of the importance of precedent, we have the tools necessary to arrive at reasoned conclusions with respect to these serious allegations. The claims by Justice Weaver are serious and warrant follow up and analysis.

In our system of government it is permissible and in fact expected that the legislature will have a political agenda. However, the only permissible "agenda" of our highest court is the adherence to precedent and the protection of constitutional rights of its citizens.

An analysis of the opinions of this Court should put the issue to rest one way or another. The analysis should begin with a few simple questions.

First, to what extent has this Court respected the concept of stare decisis? The role of precedent in the judicial branch distinguishes it from the legislative and executive branches. The concept of stare decisis discourages the influence of political agendas.

Second, to what extent have the opinions of the Engler appointees preserved the constitutional right to jury trial? Judges with an agenda disfavor trusting decision-making to everyday people.

Finally, do the opinions of these appointees overwhelmingly favor a particular class of litigants or particular special interests?

Our oath as lawyers compels adherence to the Constitution, to the concept of trial by jury and to the concept of stare decisis. An independent, fair judiciary is a crucial element in a functioning democracy. The public has a right to expect that as officers of the court, we will have open and honest dialogue where issues of impropriety or undue influence surface in our highest court.

It may be that Justice Weaver’s "personal attacks" are without substance. It may also be that Justice Weaver’s observations and criticisms are well-founded. As lawyers, we have the intellectual tools and the public responsibility to investigate these serious charges.


Robert F. Garvey

Attorney Robert Garvey is President-Elect of the Michigan Chapter of the American Board of Trial Advocates whose goal is the preservation of the right to jury trial. He is also an Adjunct Professor at the University of Detroit School of Law and a recent recipient of the Michigan State Bar Association’s President’s Choice Award for his support for the Access to Justice Program.

Who Has the Guts To Speak Out?

I could not resist posting this commentary by Olbermann on MSNBC concerning Bill Clinton's response to the Fox New interview with Bill Wallace. 

Forget the politics for a moment. Isn't it refreshing to hear a bare fisted commentary about important issues?

What if we had such debates about the hourly billing model?  What if we were willing to take on the status quo within our own profession?  Free speech is only as powerful as those willign to step up an dbe heard.  Have you found your voice yet? 

Talking About Blogging Tomorrow

We have a local technology organization, which is part of a statewide group focused on helping businesses integrate technology. We are a non-profit organization. I was one of the original board members and continue as an active member to this day. We are the primary sponsor of this local tech event. We have two booths. I am giving two presentations. One is on blogging and the other is on virtual workers.

I will let you know how it goes…

Using Microsoft Outlook as a Task Manager

One of the most overlooked features in Microsoft Outlook is its ability to flag emails.  If you look to the right side of your incoming emails, you will notice that there is a blank flag on the right.  By toggling that flag, you can cause it to appear in red or a variety of other colors.  This is incredibly powerful given the large volume of emails that we receive.

Of course, everyone has to deal with this same problem.  Fifty or more emails come in on any given day.  Sometimes you have the opportunity to deal with them directly.  More often, you are in the middle of other things and can simply note the email.  How do you know which emails have been handled and which emails have not?

By flagging emails as they come in, you can identify those which need follow-up work or response.  This allows you to briefly read an incoming email, flag it, and know that you have to come back to it later.  For those who are even more organized, you can develop a system for flag color.  Red flag color may mean a general follow-up needs to occur.  A purple flag can mean that the follow-up is a priority item.  A yellow flag can mean a follow-up phone call is necessary. 

Note that all out going emails can be flagged before they are sent as well. 

I doubt that there is anyone out there who has not had an email slip through the cracks.  If you and your firm do not develop an email policy which precludes incoming email communications from getting lost in the shuffle, you may be setting yourself up for complaints of poor customer service or worse.  For those firms that are using Microsoft Outlook, they should develop policies and training for their personnel, many of whom are probably oblivious to the powerful potential of email flagging. 

Every Firm Needs a Policy and Procedure for Handling the Receipt of Digital Information

One of the challenges, which any digital office faces, is making sure that every communication that comes into the office or goes out of the office is identifiable and retrievable at a later date.  What we have learned is that the scanning side of our process is the easiest part.  Paper comes into the office or goes out of the office and is converted to digital PDF or JPEG format and filed.   

What many firms fail to realize is that the increasing volume of email and other digital communication is the easiest to fall through the cracks.  For instance, an email comes in with an Adobe document attached.  Every firm must develop a routing process, which effectively deals with that email.  With the paper that comes into our office, a document cover routing sheet is attached and everything that needs to happen with that document is identified.  From calendaring to tasks, the document cover routing sheet is filled out.  This process provides a comprehensive check ensuring that virtually nothing falls through the cracks.

Now let us take another look at the email with the PDF document attached.  What is the process for that?  Currently, we are developing a HTML form which can be inserted into the email which will be identical to our document cover routing sheet.  What we have realized through time is that more and more firms are communicating by email as opposed to fax and mail.  We are trying to bring all of the certainty that exists with our routing sheet to bear on the digital information which we receive.

Does your firm have a standardized process for handling incoming emails which may include important calendar dates, PDF attachments, which need to go to the file server, tasks, which may need to occur as a result of the information contained in the email or the PDF, routing checklist and the like?

Lightning Bolt Energizes Tech Team

You may recall we posted previously on our experience with the lightning strike during a period where we were moving databases. We lost some accounting data and had to "make do" with both the Internet connection and the inaccessibility of accounting data.

I posted about how we turned the potential negative experience into opportunity to improve and encouraged "out of the box" thinking. The experience was picked up by and posted here.

There is an old saying that there is both good and bad in everything. We try to remember that when bad things happen, opportunity is waiting just around the corner. As lawyers, we sometimes get so wrapped up in negativity that we forget to find the light at the end of the tunnel.

Saved By Kiteboarding

Saved By Kiteboarding

One of the great things about being an independent practitioner is that you don’t answer to partners. I’m able to barter out services for things that interest me. For instance, I’m doing trademark work for the local Kiteboarding operation. I took a Kiteboarding camp two weekends ago. It was my second camp. I bought all the gear. I have committed myself to learning to kiteboard.

Every lawyer needs to feed their non-legal desires. It’s too hard of a life to simply practice law day in and day out. For me, Kiteboarding has been a dream for a long time. I grew up sailing and windsurfing. It is a natural progression. At age 42, I know I am pushing myself, which feels great.

If you are a lawyer who has not "fed your senses" by engaging in an activity which compels you, you must do so. Your very survival may depend on it. The law can eat you up and spit you out. A work life balance is imperative

Saved By Yoga

I took my first yoga class last night. Essentially, I bartered out some business formation legal services for free yoga. The thing that is most striking to me is how tight my muscles have become. As attorneys who use technology, we sit at our laptop all day. Technology can be a killer on the physical body. I think that every lawyer who aggressively uses technology needs to do something to limber up those muscles, stay fit and limber. For me, yoga is going to be a perfect match to my high-tech lifestyle.

The Complete Lawyer

I received an email the other day from someone involved with a publication called "The Complete Lawyer." I went to check it out and was pleasantly surprised by:

1. the well designed web page.

2. number of great contributors to the online magazine including Leonard Riskin, Professor, University of Missouri-Columbia School of law, Ellen Ostrow, Lawyers Life Coach, Don Hutcheson, Editor & Publisher as well as many others.

3. the great content as evidence by the evidence of some of the articles including numerous articles on how to lead a more balanced life as a lawyer.

You should really check out this site. I think it is one that will have some staying power on the Internet. I look forward to reviewing some of the content generated on the site.

At 93 Years Old You Can Choose To Die

My grandmother is 93 years old. She has outlived three husbands. Both, the first and last husband had exactly the same name Henry Petrucci. She was a dignified elegant woman who always had an opinion but never lost her cool. She’s been in very good relative health for the last few years but has recently declined as a result of a fall. At the end of your life, they offer you all kinds of tests that they can run, treatment plans and other maintenance type of medical treatments. But at the end of your life, that just gets you ten more days in the hospital. At some point, you’d rather just go home and lie in your own bed, take all the tubes out and try to die with dignity and peace. I was with my father-in-law when in the last day of his life we whisked him away from the care facility to a hospital bed in the middle of his living room. He died a few hours later in a familiar place surrounded by those who loved him and only those that loved him.

If I had to tell you something about my grandmother, who was known as "Nona" to my children and her other nine great grandchildren, I would have to tell you this. She was the most dignified and courageous woman I ever knew. She lived and died with elegance, her most prized possession.