Civility among professional peers

When you open your e-mail inbox and see an after-hours message from an appellate judge, you know something important is on his mind.

Here’s what was on Michigan Court of Appeals Judge Peter O’Connell’s mind yesterday evening: a post from the State Bar of Michigan appellate practice section’s listserve from attorney Howard Lederman. The post, in its entirety, with Mr. Lederman’s kind permission:

Having read the Illinois Supreme Court’s Maksym decision of 1/27/11, I would suggest that someone copy and frame former Illinois Supreme Court Justice Miller’s words in every appellate lawyer’s practice location and in every appellate court:

“‘Judges often disagree about what result the law requires in a particular case. The existence of these disagreements, and the ability of our legal system to thrive on them, are virtues of the judicial process and of our system of government. The terms of the debate, however, must be framed by civility and respect, and not by suspicion and untruths. When rancor eclipses reason, the quality of the debate is diminished, the bonds of collegiality are strained, and the judicial process is demeaned. We cannot prescribe civility to members of the bar when our own opinions are disfigured by comments as offensive as those we have admonished lawyers for making.


“‘We should receive no less from our colleagues than we expect from lawyers who appear before our courts.'”

Maksym v Chicago Board of Election Commissioners, Docket No 111773 (January 27, 2011), p 24, quoting People v Bull, 185 Ill 2d 179, 222 (1998).

The point is that if justices and judges want civility and respect from lawyers, they must show it themselves to each other and to the lawyers practicing before them. Several appellate courts around the country, including the US Supreme Court and the Michigan Supreme Court, have often disregarded their duty to lead by example. I hope that in the future, they can recognize the line between fighting hard for a viewpoint and demeaning each other.

Howard Lederman

Judge O’Connell’s pithy forwarding message to me: “words of wisdom.”


Martin removed from judicial ballot again: Down but not out

How’s Tawas attorney Christopher Martin doing since the Michigan Supreme Court halted his 23rd Judicial Circuit election campaign dead in its tracks?

“I’ve been better,” he told me a few days ago. “I guess the Michigan Supreme Court invoked the little-known incumbent judges’ re-election act.”

Well, not exactly, but who could blame Martin for being a little bitter about the whole affair? The order that ended his campaign exalted the exacting standards of Michigan election law over an application of equity.

Martin decided to make a three-way race for two seats on the 23rd Circuit bench by taking on the incumbents, Judges William Myles and Ronald Bergeron. He checked with the Secretary of State and was told he needed to submit between 100 and 200 signatures on his nominating petition. He was also told he could be prosecuted if he submitted more than 200.

This turned out to be bum advice because the 23rd Circuit was enlarged a while back. With more people living in the bigger circuit, the actual signature requirement jumped to between 200 and 400, which the incumbents dutifully noted after Martin submitted 158 signatures.

Since then:

  • The Secretary of State removed him from the ballot;
  • A trial court, invoking equity, ordered the SOS to give him a shot at making up the deficit with more valid signatures (which Martin had) and to put him back on the ballot;
  • A split Michigan Court of Appeals panel let the trial court decision stand. The majority, Judge Stephen Borrello, joined by Judge Donald Owens, ruled that the incumbent judges were not “aggrieved parties” and therefore lacked standing just because they had to campaign harder. Judge Peter O’Connell, dissenting, opined that the aggravation and expense of running a contested campaign is aggrieving enough, and that the incumbents had a right to complain when equity is used to permit “an end run on election law statutes” and
  • A divided Michigan Supreme Court adopted Judge O’Connell’s view on the standing and equity issues, and reinstated the SOS’s decision to keep Martin off the ballot.

Martin is understandably disappointed with the whole affair. He’s spent more in attorney fees to get on the ballot than he cares to talk about. And there are 800 not-so-inexpensive campaign yard signs, which, as of Monday, Martin told me “are still out there.”

He told the Oscoda Press that he’s thinking about a write-in campaign but admitted that would “be really tough to pull off.”

Martin is down but he’s not out. The top voter-getter in the 23rd Circuit election wins an eight-year term, the runner-up gets a six-year term.

“So, what about the next time around?” I asked him. “Will you go for it?”

His quick and emphatic reply: “Absolutely.”

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.