New law overrides effects of Woodman v. Kera (Bounce Party)

LANSING, Mich. – Gov. Rick Snyder today signed legislation allowing parents to waive their right to sue if their child is injured while playing organized sports or participating in other recreational activities.

House Bill 4231, sponsored by state Rep. John Walsh, is needed because the Michigan Court of Appeals recently ruled that current state law does not allow parents to give up the right to sue on behalf of an injured child, even if a parent signed a liability waiver.  In making the ruling, the court asked lawmakers to address the issue with legislation.

“When parents give their children permission to play organized sports, they understand that there is an inherent risk involved.  Without this protection, community organizations and coaches have no way of defending themselves from lawsuits that may results from normal activity,” the governor said.

A parent who signs a liability waiver may still sue for negligence.

H.B. 4231 is now Public Act 61 of 2011.

Source: Governor Snyder’s office

Advertisements

6th Circuit nixes Western District’s early plea ‘incentive’

Eleventh-hour guilty pleas are a fact of life in the criminal justice system.

On the defense side, waiting is a good strategy. You might get a better offer from the government. Favorable evidence may surface. Witnesses may get cold feet.

On the prosecution side, a last-minute plea means months of marshaling evidence and witnesses are all for naught.

And judges dislike reshuffling their calendars on a moment’s notice.

The Western District of Michigan, up until a few days ago, had a policy to discourage all of this.

The policy was typified in a final pretrial and trial order Judge Robert J. Jonker issued in United States v. Mackety:

A defendant who waits until the time set for the final pretrial conference to plead guilty may not receive the one-level reduction in offense level described in U.S.S.G. § 3E1.1(b), even if the government is prepared to move for it.

In other words, even if a defendant accepts responsibility for his wrongdoing, and even if the government agrees that the defendant’s contrition is sincere and his assistance to avoid trial was helpful, the defendant won’t get a break on his sentencing guidelines score to which he might otherwise be entitled.

This is not a good policy, no matter what the motivation, ruled the 6th Circuit after Mackety challenged his sentence following his plea-based conviction.

The record supports the argument that the district court’s policy influenced the Government not to move for a § 3E1.1(b) reduction and, in doing so, usurped the Government’s discretion to move for the § 3E1.1(b) reduction. …

[T]he Government stated that it had not addressed the § 3E1.1(b) reduction in the Plea Agreement because of the district court’s rule and that it would not oppose a third-level reduction.

A similar understanding of the district court’s policy also affected the Probation Officer’s calculation of the advisory Guidelines range. Specifically, the PSR [presentence report] did not recommend a § 3E1.1(b) reduction because Mackety’s plea was “untimely” under the district courts policy … .

The policy runs afoul of what Congress had in mind when it authorized a break for defendants who accept responsibility:

[T]he Government’s prerogative and discretion to move for the § 3E1.1(b) reduction was affected throughout the proceedings by the district court’s policy, a policy that contravenes the Congressional finding expressly stated in § 3E1.1(b) that “the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial.” …

We take this opportunity to advise that such policies should be discontinued immediately because they are inconsistent with Congress’ intent that the Government make the decision whether to move for the additional one-level reduction under § 3E1.1(b).

The 6th Circuit held that Mackety would have to be resentenced because his existing sentence was procedurally unreasonable.

Two judges appointed for Barry County

LANSING — Gov. Rick Snyder announced the appointments of Amy McDowell to the 5th Circuit Court in Barry County and Michael Schipper to the 56-B District Court in Barry County. 

McDowell, of Hastings, fills the vacancy created by the retirement of Judge James H. Fisher effective June 30, and will need to run in November 2012 for the remainder of Fisher’s term ending Dec. 31, 2014.

She spent five and a half years with the Barry County Prosecutor’s Office before entering private practice in 2001. She founded the law firm McPhillips and McDowell in 2003.  

Schipper, of Middleville, fills the vacancy created by the retirement of Judge Gary R. Holman and will serve the remainder of Holman’s term through Jan. 1, 2013.

He began his law practice with the Grand Rapids law firm Clary Nantz before joining the U.S. Attorney’s Office in 1990, where he worked for 20 years with the civil and criminal divisions. He has most recently served as director of compliance for A.D. Maxim & Associates, a health care consulting firm.

Source: State of Michigan

Add to FacebookAdd to DiggAdd to Del.icio.usAdd to StumbleuponAdd to RedditAdd to BlinklistAdd to TwitterAdd to TechnoratiAdd to Yahoo BuzzAdd to Newsvine

Arbitrator to decide Hooters weight cases

MOUNT CLEMENS (AP) — A dispute involving Hooters and the weight of two former Detroit-area waitresses will be settled outside of court.

Judge James Biernat Jr. of Macomb County Circuit Court recently dismissed lawsuits by Cassie Smith and Leanne Convery, clearing the way for all parties to go to private arbitration.

Smith and Convery claim they were fired or force to quit because Hooters believed they were too heavy. They worked at the restaurant chain’s Roseville location. Hooters denies the allegation. The chain is known for having female waitresses in tight-fitting clothes.

Michigan law prohibits discrimination based on weight. Hooters attorney Rob Huth told The Macomb Daily that arbitration will greatly reduce legal costs and lead to a quick decision.

Add to FacebookAdd to DiggAdd to Del.icio.usAdd to StumbleuponAdd to RedditAdd to BlinklistAdd to TwitterAdd to TechnoratiAdd to Yahoo BuzzAdd to Newsvine

2011 ‘Largest Law Firms’ directory message: Proceed with caution

Coming off a painful, economically challenging 2009, there were beacons of hope for many of the state’s largest law firms at the end of 2010.

There were positive shifts in work among once-cool practice sectors, such as real estate transactions, commercial contracts and loan originations. And there weren’t any layoffs or practice group dissolutions.

But several managing partners told Michigan Lawyers Weekly in its 2011 edition of “Michigan’s Largest Law Firms” directory, which publishes June 20, that sitting in the driver’s seat still meant impulsively scanning for potholes.

“[T]he last three years in the U.S. has shown it’s a tricky business,” said Michael W. Hartmann of No. 1-ranked Miller, Canfield, Paddock and Stone, P.L.C. (279 attorneys). “In this world, things change pretty quickly, and you have to adapt pretty quickly.

“Law firms have concluded that; I don’t think you can assume what you did two years ago will work two years from now. Law firms have to adapt like clients do — and clients don’t get [much time] to adapt.”

Among the findings in the directory, which chronicles activity from Jan. 1, 2010, to Jan. 1, 2011, among 63 Michigan firms that have 20 or more attorneys:

Alternative billing methods and more-focused client budgets were widespread: As Henry B. Cooney of No. 8-ranked Plunkett Cooney (150 attorneys) explained, “Five, 10 years ago, the idea of having a litigation or transactional budget didn’t exist, at least not very much. It certainly exists today, and we see that quite a bit.”

They also were problematic: “I think most CEOs and general counsel would tell you, people are still trying to figure out alternative fees,” said David Foltyn of No. 2-ranked Honigman Miller Schwartz and Cohn LLP (228 attorneys). “Clients are still trying to figure out how it works, and lawyers are still far behind in project managing and predictability.”

Lateral recruitment was frequent: And it was advantageous, the principal reason being “you can react to market conditions more quickly,” noted Douglas E. Wagner of No. 3-ranked Warner Norcross & Judd LLP (219 attorneys). “When you’re hiring a law student, you’re projecting out two or three years as to what your needs are going to be, but in a lateral market, you can fill a need within a few months.”

Value still is everything: Coming up with what’s expected from the firm isn’t always what the firm itself expects. Lawrence J. Murphy at No. 7-ranked Varnum LLP (153 attorneys) said one thing that’s been apparent in the past few years “is that clients are increasingly demanding that their law firms provide value as defined by the clients, not as defined by their lawyers.”

Rounding out the 10-largest firms list are Dickinson Wright PLLC (No. 4 with 218 attorneys); Dykema Gossett PLLC (No. 5 with 180); Clark Hill PLC (No. 6 with 166); Butzel Long (No. 9 with 143); and Bodman PLC (No. 10 with 138).

Add to FacebookAdd to DiggAdd to Del.icio.usAdd to StumbleuponAdd to RedditAdd to BlinklistAdd to TwitterAdd to TechnoratiAdd to Yahoo BuzzAdd to Newsvine

Of note in the Legislature: Divorce property divisions and COA filing fees

Statutory presumption for marital property splits proposed: Property acquired during a marriage, regardless of how the title is held, would be presumed to be marital property under HB 4672 and HB 4673.

The presumption could be rebutted by evidence to the contrary. The presumption would apply to real property and stocks.

HB 4673 also contains a list of factors courts must consider when untangling commingled marital and nonmarital assets, and another list of factors to determine how marital property should be divided.

The bills are currently in the House Judiciary Committee.

Bill would nix lower COA filing fees: Two statutory motion fees in the Court of Appeals would remain intact under HB 4731. The standard $100 motion fee and $200 fee for expedited appeals, see MCL 600.321, would have dropped to $75 and $150, respectively, on Oct. 1, 2012.

The bill is in the House Appropriations Committee. A hearing is set for June 22.

MSC will review pension tax law

The Michigan Supreme Court has granted Gov. Rick Snyder’s request for an advisory opinion on the constitutionality of reducing or eliminating tax exemptions for pension incomes.

The MSC will hearing arguments on the constitutionality of 2011 PA 38 on Sept. 7.

The questions submitted for the MSC’s review are:

  • (1) whether reducing or eliminating the statutory exemption for public-pension incomes as described in MCL 206.30, as amended, impairs accrued financial benefits of a “pension plan [or] retirement system of the state [or] its political subdivisions’ under Const 1963, art 9, § 24;
  • (2) whether reducing or eliminating the statutory tax exemption for pension incomes, as described in MCL 206.30, as amended, impairs a contract obligation in violation of Const 1963, art 1, § 10 or the US Const, art I, § 10(1);
  • (3) whether determining eligibility for income-tax exemptions on the basis of total household resources, or age and total household resources, as described in MCL 206.30(7) and (9), as amended, creates a graduated income tax in violation of Const 1963, art 9, § 7; and
  • (4) whether determining eligibility for income-tax exemptions on the basis of date of birth, as described in MCL 206.30(9), as amended, violates equal protection of the law under Const 1963, art 1, § 2 or the Fourteenth Amendment of the United States Constitution.

The Attorney General will submit separate briefs arguing for and against the legislation’s constitutionality.