Gamesmanship, tunnel vision and justice

Gamesmanship is "destructive."

Michigan Court of Appeals Judge Peter O'Connell: Gamesmanship is 'destructive.'

Michigan Court of Appeals Judge Peter D. O’Connell is among the few who got to the appellate bench the old-fashioned way – campaign and election – instead of the usual route, being appointed to fill a midterm vacancy.

He’s a thoughtful jurist. He’s an eloquent writer. And he wants to reduce gamesmanship in litigation by asking everyone, both bar and bench, to look at the bigger picture.

The vehicle he’s using to broadcast his message is his concurring opinion in Shawl v. Spence Brothers. (published per curiam) (Wilder and Whitbeck, JJ.).

Some background: The majority reversed a default entered against a general contractor after its insurer didn’t timely respond to an injured worker’s complaint. The majority, after surveying prior, nonbinding case law, extracted this rule

[A]n insurer’s negligence should not be conclusive on the procedurally non-negligent defendant. A defendant who diligently turns over a case to an ultimately negligent insurer should not be denied his or her day in court. The defendant is not “obligated to call daily to see whether the insurer did what it had contracted and accepted a premium to do.”

The majority also said that courts should consider the “totally of the circumstances” to determine whether the two necessary ingredients for setting aside a default – good cause and meritorious defense – are in the mix, and included two lists of factors to help judges make those determinations.

Judge O’Connell used the majority opinion as a springboard to discuss gamesmanship and judicial tunnel vision. From O’Connell’s concurring opinion:

At the outset, I stress that this opinion is not intended as an analysis or criticism of either the trial court or the majority’s methodology in resolving this case, but as an opportunity to address and reduce the gamesmanship that creates hostile attitudes and friction among litigants, lawyers, and the bench. Some attorneys maintain that gamesmanship is a fundamental and ingrained aspect of the legal process, and that attempts to compete with or outdo their opponents are not only appropriate but also required for zealous advocacy. I contend, however, that this gamesmanship attitude, which is all too prevalent in today’s law practice, is more destructive than helpful, because it brings disrespect upon the law, the litigants, and our shared concept of justice. Although I have no illusions that the game theory of law practice will be eliminated, I remain hopeful that this gamesmanship can be reduced through the application of the totality of the circumstances test to the process of administering justice. Indeed, one purpose of this opinion is to ignite discussion on the topic.

O’Connell isn’t saying the baby should be thrown out with the bath water:

Dismissals and defaults are the system’s mechanism for sanctioning those whose conduct does not fall within the confines of the rules. … Litigants who purposefully and repeatedly act outside the scope of, or fail to follow clear and concise, rules deserve special and prompt attention from the court. However, if a timely meritorious claim or defense is alleged and the conflict of the parties reasonably falls within the set of rules at issue, the law favors a lesser sanction than default or dismissal. … But, not all cases are meritorious and not all defenses are worth pursuing, particularly if the costs of litigation exceed the benefits or burdens to the parties. That is why, in my opinion, the best manner in which to balance these issues and reach a fair and just decision is to weigh the totality of the circumstances.

When judges are sifting through the facts and circumstances, says O’Connell, they should take a panoramic view because judging is an art, not a mechanical process:

Every case is different, with factual nuances that must be identified, evaluated, and balanced to reach a proper result. Only an experienced judge with common sense, wisdom, and a sense of justice is empowered by our constitution to make the correct decision. It is the judge who also exercises patience that generally utilizes the correct process. However, a judge that focuses solely on single process, to the exclusion of all else, sometimes experiences methodological tunnel vision. The process then becomes perfunctory and often results in unjust, illogical, and incongruous outcomes.

I find this occurs most often where, as in this case, “procedure is substance.” The merits of the case are left in the wake created by the procedural rules. In such cases, the manner in which the procedural rules are implemented can be more important than the substance of the case. The journey becomes more important that the destination. The totality of the circumstances test is an attempt to distinguish those occasions when the bright line application of the rules is appropriate (such as dismissal for failure to file within the statute of limitations) with situations where the rules themselves involve abstract concepts of justice (as with the use of the term “good cause” in the default judgment context). In the latter case, the art of judging cannot become a mechanical or computer-like process.”

O’Connell’s words are a thoughtful reminder that lawyers behaving as warriors and rulings from the bench that exalt form over substance sometimes thwart the court system’s primary mission – dispensing justice.

It’s something to think about over the long Labor Day weekend.

Convention floor fight brewing for MDP supreme court nomination?

Wayne Circuit Court Judge Diane Marie Hathaway told the Associated Press yesterday that she’s “strongly” considering a run for the Michigan Supreme Court and will announce her decision before the Michigan Democratic Party convention, which opens Sept. 5.

If she decides to seek the Democratic nomination, she could have a convention floor fight on her hands. Fellow Wayne County Circuit Court Judge Deborah Thomas, who’s been campaigning for the nomination for quite some time, says she won’t back down.

According to a report in Michigan Information and Research’s Capitol Capsule, Thomas said that state Democratic leadership would be making a mistake by nominating Hathaway, who has received organized labor’s endorsement.

Thomas actually defeated incumbent Justice Stephen Markman in Wayne and Washtenaw counties in 2004 and wiped out the other Republican-nominated candidate, Appellate Judge Brian Zahra, by a 3-to-1 ratio in Wayne County. In 2006, when Hathaway tried to unseat Zahra, who was running as an incumbent, she lost to Zahra in Wayne County.

“If Judge Hathaway cannot defeat a Republican incumbent in Wayne County, she cannot win the Michigan Supreme Court race,” Thomas said in a statement. “If Judge Hathaway cannot defeat a Republican in the five counties encompassed by the Court of Appeals race, there is no reason to believe she can defeat Justice Cliff Taylor in any of those counties.”

MIRS reported that Thomas’ campaign manager, Gigi Thomas, is mobilizing supporters and getting them ready for a floor vote.

Meanwhile, Michigan Supreme Court Chief Justice Clifford Taylor breezed to the state Republican Party nomination at the party convention in Novi over the weekend.

In one supporter’s view, Taylor has deity-like status. A hand-lettered sign proclaimed, “In Cliff We Trust.”

8.25.08: Top of the Weekly

Medical malpractice, discovery, Big Tobacco and law firm marketing highlight the Aug. 25 issue of Michigan Lawyers Weekly. Subscribers can click any of the links below for the full details. For the rest of you, click here.

Michigan Supreme Court – Medical Malpractice
‘Back where things started’: Status quo on ‘loss of opportunity’ analysis continues despite MSC’s criticism of ‘Fulton v. Beaumont Hospital’
Click here to read the full story.

Michigan Supreme Court – ‘Loss of opportunity’ analysis
Down with ‘Fulton’: MSC justices agree COA’s ‘loss of opportunity’ analysis must go, but can’t agree on why
Click here to read the full story.

Michigan Supreme Court – ‘Loss of opportunity’ analysis
MSC says ‘failure to diagnose’ claim not ‘loss of opportunity’ case
Click here to read the full story.

Michigan Supreme Court – ‘Loss of opportunity’ analysis
Three words: COA’s ‘loss of opportunity’ analysis reads ‘the opportunity’ to mean ‘the loss of the opportunity’
Click here to read the full story.

Michigan Supreme Court – ‘Loss of opportunity’ analysis
COA’s ‘ambiguity’ analysis misses meaning of ‘loss of opportunity’ statute
Click here to read the full story.

‘Loss of opportunity’: Reactions
Lost opportunity? Or maybe not so much
Click here to read the full story.

Split Decisions
Failure to comply with discovery order proves fatal to med-mal case
Click here to read the full story.

Consumer Protection Law
‘Lights’ out?: Troy attorney takes fight against purportedly mislabeled tobacco products to U.S. Supreme Court
Click here to read the full story.

Business of Law
Clark Hill’s chief marketing officer brings entrepreneurship, efficiency to the forefront
Click here to read the full story.

8.22.08: What they’re saying …

“This is a travesty of justice.”
– Dianne Byrum, frontwoman for Reform Michigan Government Now!, quoted in The Detroit News.
Well, how else would you expect her to respond to the Michigan Court of Appeals decision that halted the RMGN’s ballot proposal dead in its tracks? The RMGN folks promise endless appeals, starting today with the Michigan Supreme Court.


“If they wanted to do this legally, they could have come up with eight different proposed amendments. [Michigan Democratic Party Chair] Mark Brewer held a constitutional convention in his basement instead and came up with this.”
– Robert LaBrant, Michigan Chamber of Commerce vice president and chief architect of the opposition to RMGN’s proposal, quoted in The Detroit Free Press.
The Michigan Court of Appeals ruled there is a great difference between amending the Michigan Constitution, which can be accomplished at the polls, and wholesale revisions, which require convening a constitutional convention. The COA said the RMGN proposal was most definitely a revision. The proposal would alter four articles of the Michigan Constitution by modifying 24 existing sections and adding four new ones. According to the common wisdom, Brewer had a big hand in drafting the proposal.


“I think it’s been so male-dominated that it’s going to take years to make up that difference.”
– Danielle Hall, career and professional development coordinator for Cooley Law School, quoted in The Oakland Press.
Hall was reacting to the statewide statistic that 27 percent of the sitting judges are women. In Oakland County, the percentage could jump to more than 50 percent on the circuit court bench, depending on the outcome of two judicial contests in November. Nine of 19 circuit judges are women. Two male judges are retiring. In the August primary, the two female candidates looking to fill the openings outpolled their nearest competitors by a 2-1 margin.


“You might as well pull the trigger and shoot me now.”
– Nate Craft, former hit man, quoted in The Detroit News.
More than 20 years ago, Craft bargained down a first-degree murder charge and life sentence in exchange for his testimony against his former employer, the Best Friends drug gang. He was released from federal prison this spring but was denied participation in the witness protection program. Worst yet, says Craft, the terms of his probation require him to live in Michigan for the next two years. He spends his days peering out his windows and looking over his shoulder.

It’s good to be an MSC chief justice seeking re-election . . .

. . . just ask Cliff Taylor. Or better yet, check out his campaign finance filings.

record-breaking contributions to his re-election campaign.

Michigan Supreme Court Chief Justice Clifford Taylor: campaign contributions are rolling in.

According to information collected by the Michigan Campaign Finance Network, Taylor has raised more than $1.4 million this year, “setting a new record for a Michigan Supreme Court candidate’s campaign committee.”

The Michigan Republic Party takes the lead on a list of Taylor’s top contributors, followed by everyone else you’d expect: the Prince/Devos family, groups representing business concerns, restaurant operators, realtors, insurers, banks, the medical profession, and Dykema Gossett.

Meanwhile, the Michigan Democratic Party, staring hard at the Sept. 5 kickoff date for their state party convention, is still scrambling for a top court candidate to nominate and shower with money.

The party’s unfruitful search for someone to square off with Taylor has been well-reported, and has prompted Susan J. Demas, blogging in Capitol Chronicles, to suggest that the “obvious choice” has been in front of the Democrats all along. Check out her tongue-in-cheek suggestion that MDP Chair Mark Brewer should go for it.

Great Lakes beach-walking rights still clear as mud

It’s been three years since the Michigan Supreme Court, in Glass v. Goeckel, famously clarified the public’s right to walk along Great Lakes shorelines and left murky just where the walking can take place.

When beachfront property on navigable water is privately owned, the Glass court explained, the owner has littoral title to the water’s edge, but the public trust doctrine allows individuals to walk along the beach within the “ordinary high water mark.” And where’s that? Justice Maura Corrigan, who wrote the lead opinion in Glass, borrowed a definition from the state of Wisconsin and said it’s where:

“[T]he presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic.”

Where is the "ordinary high water mark?" It is the debris washed up in the foreground? What about the bluff and tree line in the distance?

Where is the ordinary high water mark? Is it the debris washed up in the foreground? What about the bluff and tree line in the distance?

Got it? Me neither. Don’t feel bad. A lot of other folks don’t get it, either. Almost everyone would have got what Justice Stephen Markman argued for in vain: walking is okay where the sand is wet. What the lead opinion offered, huffed Markman, was “essentially undecipherable.” No hyper-technical arguments, please, about what percentage of sand moisture content constitutes “wet.”

But despite the confusion about where you can walk, you have to keep moving. Beach walking is protected, not beach gawking.

This beach walker on Lake Superior just east of Marquette is probably in the right spot.

This beach walker on Lake Superior just east of Marquette is probably in the right spot.

In Leelanau County, where beach walking is a secondary form of recreation, the first being tasting the latest vintages from the area’s many outstanding wineries, Leland Township officials are dealing with two issues.

First, a lot of roads end at Lake Michigan. In Leland Township, a public right-of-way extends from the road end to the water’s edge. People hang out there in the sand. These public beaches are frequently hemmed in by privately owned land. Second, there’s all that Lake Michigan shoreline available to walkers under Glass, and readily accessible from the public right-of way.

The inevitable conflicts have developed.

The solution is new signs, say Township Supervisor Harry Larkin and Clerk Jane Keen. “Our old signs said it was illegal to walk along the shoreline outside of the public right-of-way,” Keen told The Leelanau Enterprise.

Glass took care of that and the old signs belatedly came down last summer.

“The problem with the ruling, at least in the eyes of Keen and Larkin, is the high water mark is not easily determined or marked on each private beach.
“‘I had one lady insist the tree line on the beach is the ordinary high water mark,’ Keen said.”

But that’s not a bad argument under the Glass Court’s definition.

So, here’s Leland Township’s new approach.

“Township signs will state the public right-of-way is 60 feet wide and runs from the road end to the water’s edge. The area is considered public, and fire rings will be placed so people may build fires. The signs will also state the property outside the right-of-way is private, and to respect the private property owners’ rights as well.”

The signs won’t have any guidance about beach walking.

It’s going to take an overreaching beach walker, a crabby property owner, a befuddled sheriff called to issue a trespassing ticket and another climb up the appellate ladder to flesh things out.

8.18.08: Top of the Weekly

Here’s what we have going in the Aug. 18 issue of Michigan Lawyers Weekly. Subscribers can click any of the links below for the full details. For the rest of you, here’s how you can
get on board

Ingram leaves MILW publisher post for Wayne County position
Click here to read the full story.

‘Reform Michigan Government Now’ – Analysis (Correction)
Dems will take over on COA: MILW’s mistaken identification of COA Judge Jansen as Republican skewed earlier coverage
Click here to read the full story.

Verdicts & Settlements Plus
Family feud costs daughter of auto entrepreneur millions
Click here to read the full story.

Civil Rights Action
Indecent exposure: Unruly detainees allege constitutional rights violations, receive combined $145K in damages
Click here to read the full story.

Technology Update
Litigators integrate cutting edge courtroom technology into everyday practice
Click here to read the full story.

Built For Speed
Into the wild blue yonder
Click here to read the full story.

Practice Profile
Bodman’s labor, employment law practice expands with addition of veteran attorney
Click here to read the full story.

Practice Profile
Second time around: Childhood friends reunite unexpectedly, create formidable litigation firm
Click here to read the full story.

Practice Profile
Seasoned personal injury attorney thrives, even in the decade following tort reform
Click here to read the full story.

8.15.08: What they’re saying …

“Most certainly, legislators will come to hear about the impacts of this decision from constituents and interest groups of every competing philosophy and occupation.”

– Michigan Court of Appeals Judge Bill Schuette, concurring in Woodman v. Kera, LLC.

Schuette, along with COA Judges Michael Talbot (lead opinion) and William Bandstra (concurring opinion), earlier this week ruled that because the common law provides that parents can’t waive their children’s rights, pre-injury liability waivers that parents sign on behalf of their children can’t be enforced absent a legislative abrogation of the common law.

“The decision in this case is bound to have enormous consequence and profound impact throughout Michigan,” Schuette wrote. To emphasize his point, Schuette included exemplars of a variety of pre-injury parental waivers for marathons, field trips, athletic camps and summer camps.

“I expected a punch line to a bad joke. He was dead serious.”

– Frank Sila, quoted in The Kalamazoo Gazette.

Sila, a volunteer who conducts Bible studies at the county jail, was reacting to a participant who saw himself as a responsible man because he didn’t beat his wife in front of his children. The statement prompted Sila and others to round up the funding and equipment to replace some of the regular network television programming the inmates watch with educational shows about parenting, resume writing, sexually transmitted diseases, jail rules, addiction, drugs and depression.

“They suck. They’re loud. And it keeps me up all day.”

– Kalamazoo County Jail inmate Anthony Hood, quoted in The Kalamazoo Gazette.

Hood was reacting to the new television programs at the jail.

“Whenever I come across a business that has a step or two to get in, the owner usually says, ‘No one in a wheelchair ever shops here.’ I think it’s pretty obvious why they don’t.”

– William Milzarski, a rights representative for the Michigan Commission on Disability Concerns, quoted in The Detroit Free Press.

Milzarski noted that handicap access is still a problem at many public places. Erica Nader, who works to highlight access issues, took a wheelchair tour of Ferndale in commemoration of the 18th anniversary of the Americans with Disabilities Act. At one business, the door met regulations and was 32 inches wide. The bathroom was also up to ADA snuff but a 6-inch step prevented Nader from gaining access to the business without assistance. The owner was receptive to upgrade suggestions.

The joke’s on the ‘Joker’

I’m not making this up. Honest. From the Associated Press:

“A Three Rivers man accused of trying to steal a large Batman movie poster from a cinema lobby while dressed up as the Joker has pleaded guilty to a misdemeanor charge of malicious destruction of property.

“Twenty-year-old Spencer Taylor entered the plea Wednesday in St. Joseph County District Court.

“A judge ordered him to serve one day in jail, perform 16 hours of community service and pay $685 in fines.

“Charges of attempted larceny in a building and using a mask to conceal his identity during the commission of a crime were dismissed as part of Taylor’s plea agreement.

“Three Rivers police say he was wearing a purple suit, green wig and face paint when they arrested him on July 27.”

Foolish prank. Nifty disguise.

Sound off on proposed federal court rule changes

Proposed amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure, and Federal Rules of Evidence have been posted here and are open for your comments through Feb. 17, 2009.

A brochure prepared by the Administrative Office of the U.S. Courts summarizes the proposed amendments. For more detailed committee reports, scroll to the bottom of the page here.