Top Michigan legal news of the year

By Lee Dryden The Daily Record Newswire 2015 was definitely an interesting year in the legal world. A push to "disfavor" unpublished opinions raised the ire of lawyers across the state. A lawyer who didn't keep up with his bar dues ran into a sticky situation at trial. A jury awarded $21 million in the case of a woman who died after receiving brain surgery instead of her scheduled jaw procedure. A law professor was appointed to replace a Michigan Supreme Court justice who resigned to return to private practice. A longtime jurist took on a much larger role. Paternity decisions taken away from courts New laws aimed at streamlining paternity determinations largely removed judges from the process of determining a child's biological father. Public Acts 364 through 376, which went into effect March 17, integrated paternity and child-support collection proceedings. The new laws also make the establishment of paternity a civil administrative process, rather than quasi-criminal. PA 364 provides that a court determination is no longer necessary when a genetic paternity test comes back 99 percent positive or higher. It also requires an order of filiation be entered if genetic testing has determined the man is the child's father. PA 365 is the new Genetic Parentage Act. It specifies the conditions under which a man can be considered a child's biological father. PA 376 lets a person petition the court to show that a man is not the child's parent. Some attorneys praised the push toward efficiency, although concerns were raised about violating the due process rights of some men such as an inability to challenge inaccurate lab results. Proposal to 'disfavor' unpublished opinions prompts outcry In February, the legal world was abuzz over a proposed court rule change saying relying on unpublished Michigan Court of Appeals opinions in appellate briefs would be "disfavored." In a Feb. 18 order the Michigan Supreme Court proposed an amendment to MCR 7.215, at the suggestion of the appeals court, that would discourage using unpublished cases, which have no precedential effect but far outnumber published cases. The Court of Appeals proposed the rule change due to an increased reliance on unpublished cases, which some judges dislike although the opinions have persuasive value. Attorneys quickly expressed their displeasure as they - along with Justice Stephen J. Markman - stressed that unpublished opinions are indeed "real law." Lawyers speculated that the proposed change was also prompted by an effort to reduce the length of paper briefs filed with the Court of Appeals. Attorneys argued there simply aren't published opinions available for certain cases, especially in family law. At the Supreme Court's Sept. 16 public hearing on the proposed amendment, Court of Appeals Judges Elizabeth L. Gleicher and Christopher M. Murray expressed support for the proposal, saying lawyers wouldn't be barred from using unpublished opinions but would need explain why each is being cited. Murray said unpublished authority is cited "all the time" - even when published cases are available. No action has been taken on the proposed change. Bar dues payment snag halts trial A Kentwood attorney learned a tough lesson in February about paying his State Bar of Michigan membership dues. Scott E. Pederson was representing a defendant during a criminal case in Kent County Circuit Court when it came to light that Pederson's law license was suspended due to nonpayment of dues. Pederson said he mailed his payment - albeit late - and assumed all was well because he received his bar card. But all was not well as the check did not clear and he apparently did not see a letter notifying him of his suspension. After Judge Dennis B. Leiber stopped the court proceedings so the defendant could retain a lawyer in good standing, Pederson called the State Bar. In about 15 minutes, Pederson said he paid his dues and his status was changed to "active and in good standing." Pederson accepted blame, but said that Leiber did not have to halt the trial, especially since the problem was easily corrected. Leiber said he stopped the trial to avoid keeping potential jurors in limbo and because it was unclear whether Pederson would be able to pay his bar dues "in a quick and timely manner." Wayne jury awards $21M after woman gets wrong operation On May 6, a jury awarded $21 million after the death of a woman who, in January 2012, mistakenly received brain surgery instead of a jaw procedure after hospital staff put the woman's name on the wrong X-ray form. Bimla Nayyar of Belleville died 60 days after the surgery. Attorney Geoffrey Fieger said jurors sent a note during deliberations asking if Oakwood Healthcare Inc. could also be forced to apologize to Nayyar's family. Fieger said none of the medical records acknowledged the doctors operating on the wrong patient, and the family was never told about the mix-up. After the surgery, Nayyar couldn't breathe on her own, she developed abdominal fluid, her entire body swelled and she became an insulin-dependent diabetic, Fieger said. Fieger added that when the defense did admit liability, it denied owing damages. But, he added, "every [Oakwood] doctor who testified said you don't need to be a doctor to understand you can't operate on the wrong patient." Mack moves from Wayne probate court to state court administrator Longtime Wayne County Probate Court Judge Milton L. Mack Jr. had a surprise career shift in May, prompted by a call to action by Michigan Supreme Court Chief Justice Robert P. Young Jr. He gave up his 25-year seat to become the new state court administrator, overseeing the state's district, circuit and probate courts. He didn't apply for the job, he was recruited for it because of his unique skill set. Mack said funding is the biggest issue facing the state's trial courts, specifically where it should come from. "Right now, it's basically the county and sometimes the cities," he said in an interview with Michigan Lawyers Weekly. "I think we should look at state funding. That way, we're no longer giving people tickets so the courts can raise money, and we're no longer seizing property to help fund the courts' budget." He also stressed the importance of continuing his work on mental-health issues, empowering people to do their jobs and improving relations between the trial courts and the State Court Administrative Office. 'Value-added' fees in divorce cases spark debate Dozens of attorneys have written the Michigan Supreme Court, telling the justices why lawyers should - and should not - be allowed to charge value-added fees in divorce cases. Also called "enhanced" or "results-oriented" fees, value-based fees reflect the overall value of legal services - not the number of hours a lawyer spends on a case. The final fee is agreed upon when the matter is closed. Many divorce attorneys say they use the arrangement because the fee is more reasonable and the client has more control. The Supreme Court published two amendments to Michigan Rule of Professional Conduct 1.5 dealing with value-added fees. One proposal would allow the fees, while the other would prohibit them. The high court accepted written comments on the amendments through July 1. Lawyers said at a September Michigan Supreme Court public hearing that they should be permitted to collect "value-added" fees at the end of a divorce case because they are not contingent and the client can always reject them. But the Attorney Grievance Commission and an ethics attorney said such fees are contingent and do not protect the public's interest. No action has been taken on the proposed change. Larsen in, Kelly out as high court stays 5-2 in GOP's favor Joan L. Larsen was appointed Sept. 30 by Gov. Rick Snyder to the Michigan Supreme Court to fill a vacancy created when Mary Beth Kelly resigned to go into private practice. The appointment of Larsen, a University of Michigan Law School faculty member, maintains the court's 5-2 Republican majority. Larsen said she said she believes in "enforcing the text as written. I don't think judges are a policy-making branch of government. Our role is to serve the people by enforcing the laws the way they were written by the Legislature." Kelly joined Bodman PLC in Detroit. She said she has achieved all of her public service objectives and would like to focus on more community service opportunities. At Bodman, her focus is on business litigation, government relations and public affairs. Kelly, who was elected to the high court in 2010, will be active in the firm's pro bono and community service programs, as well as tackling other leadership initiatives. Kelly has been recognized for her dedication to juvenile justice matters. Lawyers representing self or firm can get attorney's fees in case evaluation Beginning Jan.1, a rejecting party's liability for actual costs under the case evaluation court rule will include a reasonable fee for attorneys representing themselves or their firms. The Michigan Supreme Court's amendment of MCR 2.403 also permits compensation for the "time and labor" of the attorneys' legal assistants. The proposal to amend the court rule came in the wake of the Supreme Court's decision in Fraser Trebilcock Davis & Dunlop PC v. Boyce Trust 2350. Fraser Trebilcock obtained a judgment of more than $73,000 against the defendants, former clients who did not pay their bills. The trial court awarded attorney's fees as a case evaluation sanction because the clients did not respond to a $60,000 settlement offer and the firm got a more favorable verdict at trial. The Court of Appeals affirmed the sanction award in a 2-1 published decision but a unanimous Supreme Court reversed. The high court's initial July 6 proposed amendment did not mention legal assistants, but they were added later. Appeals court vacates own opinion in custody case A Michigan Court of Appeals panel reversed itself in a custody case where the hearing referee's order was initially ruled to be in "violation of multiple procedural rules and substantive requirements." The panel vacated the Sept. 15 opinion after the trial judge in the case filed material asserting that the opinion contained factual errors. The majority stated in the vacated opinion, McConchie v. Voight, that the hearing referee stamped Livingston Trial Court Chief Judge David J. Reader's name on a March 4 order that changed a child's primary physical custody from the mother to the father. This gave the order immediate effect and prevented the child's mother from making objections. The majority said the referee had no authority to do this. In briefs and accompanying affidavits from Reader and the hearing referee, the judge asserted that the referee did not stamp his signature on the March 4 order, or any other order in the case. Reader also averred that he personally signed the order. Wayne County jury takes 25 minutes to award $4.6M verdict On Sept. 3, a Wayne County jury took only 25 minutes to award the plaintiff $4,616,000 in the case of a 58-year-old woman who suffered a traumatic brain injury when a lawn chair fell on her head at a Livonia CVS store. The case was a challenge for the plaintiff as the MRI showed no signs of neurological injuries and the store said it had no surveillance video of the incident. The winning strategy focused on the plaintiff's credibility, three neurology experts' knowledge, and a CVS assistant manager's conflicting testimony. The jury's quick work was the most remarkable part of the trial, said plaintiff's attorney Robert M. Raitt. "I mean, to fill out the form, which was nine questions, takes 25 minutes," he said. "They only asked for the exhibits, and I was told by the jury afterward, 'We kind of knew what we were going to do going in.'" Published: Thu, Dec 31, 2015