Michigan bar exam: grading changed, fees increased

Beginning with the February 2009 Michigan bar exam, you won’t be able to pass on the strength of a red-hot Multistate Bar Examination score alone.

Graders hired by the Board of Law Examiners will read your bluebook essay answers no matter how well you did on the multiple choice portion of the exam.

Why the change? According to the BLE’s policy statement:

“In order to assure consistency in the level of difficulty of Michigan bar examination essay questions from one examination to another, and thereby to more accurately assess whether applicants have attained the level of competence in the law necessary for the protection of the public, the Board of Law Examiners has determined to scale the essay examination scores to the scoring of the Multistate Bar Examination. To do this, the Board has determined that it is necessary to eliminate the practice of not grading the essay answers of applicants obtaining a threshold score on the MBE.”

More bluebooks to read means more work for the graders and a modest hike in the bar examination fee to cover those costs. First-time takers will pay $340. Re-examinations will cost $240.

The fee increases are the result of the Michigan Supreme Court’s amendment of Rule 6 of the Rules for the Board of Law Examiners.

The BLE’s policy statement on the grading change is available here.

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New Federal Rule of Evidence 502 enacted

Attorneys conducting exhaustive reviews of documents subject to a discovery request, to ensure that privileged material is not produced, are welcoming the enactment of new Federal Rule of Evidence, FRE 502.

FRE 502 limits waivers of attorney-client privilege and work-product protection to facilitate discovery and reduce discovery costs, according to a memo issued yesterday by the Administrative Office of the United States Courts.

The new rule was enacted last Friday, takes immediate effect and

applies in all proceedings commenced after the date of enactment and, insofar as is just and practicable, in all proceedings pending on such date.

U.S. District Court Judge Lee H. Rosenthal, the chair of the Judicial Conference Committee on Rules of Practice and Procedure, discusses the new rule here.

Anatomy of a fishing lesson

News item from The Detroit Free Press: The 50th anniversary of the publication of “Anatomy of a Murder” by former Michigan Supreme Court Justice John D. Voelker, under the pen name Robert Traver, is being celebrated with a series of events in Marquette, Ishpeming and Lansing.

My family discovered the Upper Peninsula in the late 1980s when we rented a little cabin (a “camp” in Yooper vernacular) on Lake Superior near Shot Point, about 15 miles east of Marquette. On our first visit, we unpacked, explored the immediate area and decided we had stumbled upon heaven on earth. Then we took stock of what we forgot to pack, got in the car and headed west on Highway 28 toward Harvey for groceries, sundries and gasoline.

Just before Highway 28 runs into U.S. 41, at the heart of downtown Harvey, the Chocolay River bends out toward the road. There’s a small parking lot, a platform for handicapper fishing and an open bank leading down to the river.

It was right around there that we first saw the old, beat-up, blue Jeep Cherokee, driving slowly, mostly on the shoulder, with the driver-side door open a couple of feet. The driver appeared to be staring intently at the white fog line separating the road from the shoulder.

“What the heck,” or something close to that, I said to my family.

During our two-week stay, we saw the same scene several times, always right around the river. Things are different in the U.P., we decided.

One day, I caved in to my young son’s wishes and took him to fish at the Chocolay access point. I didn’t really care for fishing at the time. No patience for it. Patience is something that came with age for me. I could still use more of it.

We baited some hooks, threw the lines in and waited. From behind me, I heard car tires on gravel. I pulled my line out and hoped that it wasn’t a DNR officer because I was completely unlicensed.

It was the blue Jeep Cherokee.

An old man, crumpled hat, craggy face, nose shaped like a small potato, slightly unsteady on his feet, got out and started toward us. He definitely wasn’t a DNR officer.

“Hi,” I called out.

“Hello. Why’d you pull your line out?”

“Thought you were the law and I don’t have a license.”

“We don’t pay much attention to that around here. How’s he doing?” he asked, gesturing toward my son.

“Not so well. I don’t know much about this,” which drew a look that was a mixture of bewilderment and slight disapproval, perhaps, but he finished with a grin when I added, “but he enjoys it.”

“Mind if I help out?”

“How about it, son? The gentleman knows something about fishing.”

For the next 10 or 15 minutes, he talked to my son about the river, the fish, the weeds, the current, the rocks, where the big ones were. At one point, he went back to the Jeep and returned with something called a “spawn sac,” which he guaranteed would bring a fish to my son’s hook.

It did but it wasn’t a keeper.

After a while, he said he needed to be moving on. My son and I thanked him as he got back into the Jeep and slowed pulled out of the parking lot, straddling the shoulder with the driver’s door partly open.

As the Jeep disappeared, I realized I hadn’t caught his name. I never asked and he never volunteered it.

Several days later, back in the real world of work and Lawyers Weekly, I was thumbing through the issues that were published while I was gone. I turned a page and stopped cold.

Staring out from the page was a picture of the old gentleman who gave my son a fishing lesson.

His picture was coupled with a story about the
John D. Voelker Foundation’s
republication of two of his fishing books. The paper was partnering with the Foundation at the up-coming State Bar of Michigan Annual Meeting, where the books would be sold to fund the Foundation’s activities.

My son had the privilege of a fishing lesson from the great man himself, John D. Voelker, former Michigan Supreme Court justice, author and outdoorsman, whose memory and literary achievements are being celebrated over the next several weeks.

I shared this story with Michigan Supreme Court Commissioner Fred Baker last week. He’s the secretary-treasurer of the Voelker Foundation.

“What about the way he drove the Jeep?” I asked. A driving performance like that anywhere else would have been worthy of a ticket or worse.

Baker told me that in Voelker’s final years, his eyesight was very bad. He would actually use the road’s fog line to make sure he was going in a straight path. He was so beloved in the Marquette area that when the police came upon him on the road, they’d leave him alone and just follow him to make sure he got where he was going.

Things are different in the U.P.

Harr, mateys! Let’s talk like a pirate, says MSC’s ‘Mad’ Marcia McBrien

Today is Talk Like A Pirate Day, and the normally somewhat reserved Marcia Mary McBrien, the Michigan Supreme Court’s Public Information Officer, says you should join the fun.

Take yer ease by talkin' pirate, mateys

'Mad' Marcia McBrien, MSC Public Information Officer: Take yer ease by talkin' pirate, mateys

TLAPD, for the uninitiated, hit the scene in a big way seven years ago, when Dave Berry, the nationally syndicated columnist, did a piece on John Baur and Mark Summers, who began speaking like pirates during a heated racquetball game. The thing has snowballed into an international phenomena, complete with websites, newsletters, books, media interviews, lectures, parties galore with plenty of grog, and this year, an appearance by Baur and Summers (now known as Ol’ Chumbucket and Cap’n Slappy) at The Franklin in Philadelphia to promote the museum’s Real Pirates! exhibit.

But back to Marcia. She comes from a nice family, she lives in one of Pointes, she’s earned degrees from Notre Dame and the University of Michigan, she belongs to a garden club, she’s a stylish dresser, she goes to church on Sunday.

Every Sept. 19, she speaks Piratize.

What gives, Marcia? Why is a nice lady like you talking like a salty Caribbean swashbuckler?

“Well, ye see matey, ’twas like this: I be thinkin’ a few years ago that all of us have days where ye be feelin’ lower than a bilge rat’s belly. And everyone needs a bit of tomfoolery to be helpin’ ’em through t’ day. And I was a-thinkin’ of ways to amuse me shipmates and I hit upon International Talk Like A Pirate Day. I’ve been observin’ it ever since.”

Who else is playing along at the court?

“That would be me shipmates, Buccaneer Barb Brown and Cap’n Leslie Jenkins.”

How about the justices? Do any of them speak Piratize?

“Not yet, lad. But I’m workin’ on ’em. I want to see ‘avast’ in a Michigan Supreme Court opinion one of these days but it hasn’t happened yet.”

But you’ve written in Piratize on behalf of the court.

“Well, ’tis true, matey. Last year, we was a sendin’ out a press release for an administrative hearin’. I have a hard time for some reason gettin’ t’ general public and the media to pay attention – they seem to think it’s duller than last week’s bilge water – and I sent out a cover e-mail. ‘Twas all in pirate-speak, me lad. ‘Avast, ye swabs! Take heed!’ And some of ’em did. A few of ’em even responded in pirate-speak. It’s most gratifyin’, me lad.”

Are you doing anything else to get the judiciary and the legal community to embrace Talk Like A Pirate Day?

“It’s a process that will take some time, matey. It’s not like you can drop a belayin’ pin on someone’s head and say, ‘Celebrate it, now! Celebrate yer piratitude!’ We’re not talkin’ about bein’ real pirates, here. They were bloodthirsty, nasty people. We’re talkin’ about havin’ a bit o’ fun, a bit o’ tomfoolery and gettin’ away from pressures. Everyone’s worried about t’ economy, where their next pieces-o-eight are comin’ from. You do a little tomfoolery like this and it makes t’ barnacles fall off and your ship sail a little higher in t’ water.”

What’s next for you and Talk Like A Pirate Day?

“Where I’d like to see this be a goin’ some day: there’s a dearth of men walkin’ around sayin, ‘Avast, me proud beauty!’ to women passin’ by. It’s a serious oversight by t’ menfolk in these parts. Never once have I been addressed as ‘me proud beauty.’ So, we hope to rectify that.

Marcia, me proud beauty, some folks might think it should be easy for members of the legal profession to speak Piratize. What do you think?

“I’ll not be touchin’ that one with a 10-foot mizzenmast, matey.”

Well, shiver me timbers.

Now, t’ rest of ye swabees out there, it’s high time to let your inner pirate shine.

Update: Sept. 22, 2008

Ahoy, me hearties! Mad Marcia, Pirate Information Officer and t’ proud beauty of t’ MSC, scribed another o’ her celebrated press releases on Friday past. T’ cover e-mail, me swabees, ’twas in Piratize:

Take heed, ye bold lads and feisty wenches o’ the Fourth Estate!

Th’ Court be holdin’ a public hearin’ on administrative matters next week, Sept. 24, beginnin’ at three bells o’ the forenoon watch! So don’t just throw this press release o’er the starboard bow – it be full o’ treasure! (In the metaphorical sense.)

Me shipmates, Cap’n Leslie and Buccaneer Barb, and I bid ye a happy Talk Like a Pirate Day! A fair wind an’ good sailin’ to ye all!

Yo ho ho!

Mad Marcia
Pirate Information Officer

Constitutional rights for all, including those who can’t afford them

Today is “Constitution Day,” a day that we take note of the 220th anniversary of this remarkable document, along with the rights it provides and responsibilities it imposes.

Civil rights for everyone

Richard McLellan: rights for everyone

Today is also the day that East Lansing attorney Richard McLellan, writing in The Lansing State Journal, has appropriately pointed out a sad truth: when it comes to discharging the constitutional duty to ensure that indigent criminal defendants receive effective assistance of counsel, the state government has failed spectacularly.

McLellan has the credentials to make this indictment. He’s the chair of the Michigan Law Revision Committee, a member of the State Bar’s Public Policy Committee, and a former co-chair of the bar’s Justice Initiatives Committee.

And he’s got the data to make his case. A study of 10 counties’ public defender systems released earlier this year by the National Legal Aid & Defender Association concluded that not one of them was providing constitutionally adequate representation to criminal defendants who couldn’t afford to hire an attorney. In some counties, the picture isn’t pretty at all.

McLellan comments:

NLADA’s extensive report, originally requested by the Legislature, provides the state with an opportunity to both protect the rights of citizens and use taxpayer dollars more efficiently. We currently spend $2 billion a year on prisons. By taking common sense steps to provide residents with an adequate legal defense we can not only keep innocent men and women out of jail, we can avoid wasting millions.

Let us use Constitution Day to commit ourselves and our state to fully embracing both the benefits and the obligations our law provides.

Hear, hear.

Ingham County prosecutor feeling the heat

The Lansing State Journal took an unusual editorial position in last Sunday’s editions.

It’s a bit too early to endorse candidates for the November election. But the LSJ’s editorial board took a quick lead in telling voters who not to vote for: the incumbent Ingham County prosecutor.

“At this time, it’s unclear who would be the best person to lead the Prosecutor’s Office in 2009. What is clear, though, is it should not be Stuart Dunnings III.”

Dunnings fired assistant prosecutor Eric Matwiejczyk a couple of weeks ago, on the heels of a report issued by Attorney General Mike Cox’s office.

In February 2006, Matwiejczyk obtained first-degree murder and criminal sexual conduct convictions against Claude McCollum. The convictions were reversed and McCollum was released from prison after news surfaced that a state police report of a video surveillance tape analysis showed that McCollum was somewhere else when the crime was committed. The state police report was prepared in 2005, shortly after the victim was killed.

The attorney general’s report stated that the “vast majority of witnesses interviewed support the conclusion that Matwiejczyk had not been provided the report prior to February 2, 2006.” The attorney general’s report concluded that the state police report was not provided to McCollum’s defense attorney until moments before the report’s author, a state police detective, took the stand on Feb. 2 to testify at trial.

The attorney general’s report says that Matwiejczyk avoided questioning the detective about McCollum’s whereabouts when the crime was committed. McCollum’s attorney didn’t cross-exam the detective about the “potentially exculpatory [state police] report.” The attorney general’s report states “Matwiejczyk did nothing[]” and suggests that perhaps he should have.

The attorney general’s report referred Matwiejczyk to the Michigan Attorney Grievance Commission to investigate “whether he violated the Michigan Rules of Profession conduct for his failure to disclose exculpatory information in a timely manner to allow for its effective use at trial.”

The Lansing State Journal explained why Dunnings should take the fall for Matwiejczyk:

“The Attorney General Office’s review of the Claude McCollum prosecution is a defining failure in a long record of problems under Dunnings’ management. There have been too many examples of misjudgment and too much misunderstanding of what it means to be a public servant in the most sensitive position in county government.

“The logic for Dunnings’ departure boils down to a single word: trust. The voters of this county have given him an office of wide-ranging powers. His record, though, shows he cannot be trusted with them.

“And in the McCollum case, it seems Dunnings couldn’t even be bothered with the details. The AG’s Office spent months reviewing documents and interviewing the principals in the case that led to McCollum being wrongly convicted and imprisoned for the brutal slaying of Carolyn Kronenberg.

“The picture presented is one of a prosecution focused on McCollum to the exclusion of evidence that created clear doubt. And Dunnings? He doesn’t appear at all. His subordinates, based on their testimony, did not even inform Dunnings of a critical analysis of video evidence that put McCollum elsewhere at the time of Kronenberg’s death.

“The Ingham County Prosecutor’s Office handles thousands of criminal complaints each year. There’s no way a single person could be on top of every single case.

“But this wasn’t the average break-in or car theft. This was a heinous and high-profile homicide. Dunnings appears to have delegated the matter to someone he trusted and left it at that.

“This person, Eric Matwiejczk, was fired in the wake of the AG’s report, though. And the Attorney General’s Office advised that Matwiejczk’s professional conduct be investigated.”

The LSJ detailed what it perceives to be other of Dunnings’ shortcomings:

“Looking back over the last decade, there were other warning signs about Dunnings’ adherence to key principles of public service.

“Again and again, Dunnings has attempted to keep key facets of the legal process out of the public eye.

“In the Ricky Holland and Sally Mercer cases, Dunnings sought to seal hearings.

“He actively lobbied for a state law to restrict public access to search warrants and related documents – after he himself had suppressed search warrants in homicide cases.

“In 1999, he kept the public in the dark about the actual arrest of a rape suspect. Search warrants in that case were issued in secret and sealed.

“The LSJ has had its run-ins with the prosecutor, most notably in 1999 when he unsuccessfully sought unpublished photos taken by LSJ staffers on the night of a riot in East Lansing – a move that would have turned the media into an arm of the Prosecutor’s Office.”

As mentioned, the LSJ stopped short of endorsing Dunnings’ opponent, Republican J. Nicholas Bostic. Instead, the paper urged local Democrats to abandon Dunnings and get a write-campaign going for someone else.

Related reading here and here (last item in post).

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.