By the Numbers: Clarkston Legal Production 2011

In my law practice, I drive from various courts across Michigan in a 2009 Ford Explorer.  That vehicle has 110,000 miles burned into it over the past 3-years.  That's a lot of court appearances.Here are the numbers behind those miles for this past calendar year.Michigan Court of Appeals.  Although I had not argued before the Court of Appeals in more than two years, I had 4 arguments before the intermediate appellate tribunal in 2011.  Also filed 25 briefs in that court; most of them applications for leave to appeal guilty pleas.  In the first week of 2012, I have two arguments.Oakland County.  This is where we hold a "home field" advantage.  In 2011, I appeared in the circuit court, including the family court...

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Posted in: family court,Friend of the Court,Genesee County,Livingston County,Macomb County Circuit Court,Oakland County Circuit Court,Wayne County Circuit Court

Valid Prenuptial Agreements Require Full Asset Disclosures

Prenuptial agreements, contracts executed in the anticipation of a marriage, have long been validated in Michigan courts.  Generally, there are two contingencies covered in a typical prenuptial agreement: a) the divorce of the contracting parties; and b) the death of one of the parties.A primary requirement to enforcing a prenuptial agreement is the "special duty" of full disclosure of all assets by both contracting parties.  This requirement was recently examined in a key (but unpublished) decision of the Michigan Court of Appeals. The case, In the Matter of Kenneth Waller, originated right here in the Oakland County Probate Court.  The case illustrates the risk of executing a "do-it-yourself" prenuptial agreement.The contract...

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Posted in: antenuptial agreement,divorce,divorce lawyer,Michigan Court of Appeals,Oakland County Family Court,Oakland County Probate Court,prenuptial agreement

Disparate Sentences for NBA Stars' Drunk Driving Convictions in Oakland County

A well-respected blog on sentencing picked-up on the infamous NBA drunk driving cases coming out of the 48th District Court in Bloomfield Hills, MI. The blog noted the difference between Jalen Rose's straight-forward OWI conviction [he did 14-days in the OCJ]; and the weapons charge component to Big Ben Wallace's OWI charge, recently resolved in the Oakland County Circuit Court before Judge Shalina Kumar.Here is what the blog had to say about the two cases:On the surface, it would appear that Wallace committed a (much?) worse offense but ultimately got a (much?) lighter sentence than Rose.  Of course, maybe there are some specific differences in the cases not obvious on the surface that justify this seeming disparity.  And, perhaps...

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Posted in: Ben Wallace,criminal defense lawyer,drunk driving,felony firearm,Jalen Rose,Oakland Circuit Judge Shalina Kumar,Oakland County Circuit Court,OWI

Nursing Home Liability: Who Owns the Facility

A recent 2.35 million dollar Macomb County jury verdict shines a light on the ownership and practices of a nursing home in St. Clair Shores.  Bankruptcy and missing records clouded the identity of the real party in interest in a negligence law suit resulting from the 2008 choking death of a resident.Turned out to be the Nightingale East Nursing Center, owned in part by a now-defunct company, and eventually traced to SavaSeniorCare, an LLC located in Atlanta, GA.In the litigation, St. Clair Shores attorney John Perrin experienced an evidentiary mistrial and a mishandled document request in clawing his way to the jury verdict.  For their part, the defense attorneys claim that the botched corporate disclosure was not intentional....

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Posted in: defense attorney,elder law,guardianship,Jennifer Andreou,John Perrin,Macomb County,medical malpractice,negligence,nursing home,Oakland County,Plunkett and Cooney

6 Holiday Tips for Divorced Parents

Often, tensions escalate over the holidays as divorced parents struggle with the demands of scheduling the children to accommodate two households.  Holiday schedules are already difficult without the complications of a divorce judgment or divorce proceeding.Here are some practical tips in dealing with holiday parenting time gleaned from divorce lawyers around the state.Reduce an alternating holiday schedule to a court order.  It is always best for the children when the parents can agree on a schedule.  Alternating holidays is most common when drafting the parenting schedule.  When both parents live close to one another, many families utilize a shared holiday model where the children spend time with one parent until noon,...

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Posted in: divorce,divorce lawyer,parenting schedule,parenting time

Michigan's Parole Process Explained

From time to time, our appellate clients asking about the parole process.  One way or another, incarceration and parole affects all of us; adding significant costs to maintain our freedom.An effective criminal justice system depends on the ability of that system to reintegrate the overwhelming majority of convicted felons that have served their bit, back into some semblance of productive society.The purpose of this post is to explain Michigan's parole process to our readers.  Whether you are a tax paying citizen, or someone with a direct connection to the MDOC, the costs and procedures affect everyone. Here are the basics...The Parole Board.The Parole Board in Michigan was recently reduced in 2011 from 15 members to the current 10...

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Posted in: criminal defense attorney,criminal law,Michigan Court of Appeals,Michigan Department of Corrections,parole,probation,sentencing

Anonymous Internet Critics

This blog has covered the defamation lawsuit filed by the Cooley Law School against one if it's more vocal critics; one of the legion of graduates that has trashed the law school in a blog titled "The Thomas M. Cooley Law School Scam".  This post brings our readers up to date with some important recent developments in the case.Cooley's defamation suit, pending in the Ingham County Circuit Court, was assigned to Circuit Judge Clinton Canady III. Cooley is represented by the Miller Canfield law firm and the anonymous blogger, using the pseudonym "Rockstar05", is represented by Berkeley, MI attorney John Hermann.For their part, Miller Canfield has been vigorously prosecuting their cause of action, issuing subpoenas in two states [Michigan...

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Posted in: Cooley Law School,defamation,First Amendment,Ingham County Circuit Court,John Hermann,Judge Clinton Canady,Miller Canfield,privacy

Preparing for a Second Marriage

Many factors affect whether a second marriage will last: the relative age and incomes of the partners, whether either party has children, cohabitation prior to the second nuptials, and the education level of the parties.And, of course, how could we forget the personality of the ex-spouse; perhaps the most important factor of all.According to statistics published by the National Institute of Health, approximately 15% of second marriages end within 3-years; and 23% end within 5-years.  Overall, however, the divorce rate for second marriages has drawn even with that of first marriages; about 40%.  Also, in its 2009 report Marital Events of Americans, the Census Bureau claims first marriages last, on average, about as long as second marriages:...

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Posted in: divorce,estate planning,family law lawyer,marital estate,marital property,second marriage,trust

Miss Michigan "Super Drunk" Candidate in Highland Park

Former Miss Michigan Rima FakihOops, busted.  Former Miss Michigan and Miss USA Rima Fakih, 26, of Dearborn, MI, allegedly was cited at 2:15 am in Highland Park for driving with a blood alcohol content of .20.Unfortunately for the beauty queen, this qualifies her for a charge under Michigan's relatively new "super drunk" law.  While Fakih, like most other motorists, will be initially charged with a standard "operating while intoxicated" offense, there is the potential for the "super drunk" charge if her BAC is greater than .17.This "super drunk" charge subjects drivers to stiffer penalties.  Those penalties include a one-year license suspension for first-time "super drunks"; an increase in the potential maximum jail sentence...

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Posted in: blood alcohol,criminal defense lawyer,drunk driving,impaired,Rima Fakih,Super Drunk

The Dragon Suicides

This Tuesday, I will be heading to Detroit to present oral argument to a 3-judge panel of the Michigan Court of Appeals.  The appeal is from a summary disposition of my client's wrongful death claim against the parents of a Lake Orion High School senior.The LOHS senior hosted an impromptu graduation party in May 2008 while his parents were out dining and socializing until nearly 1:00 am.  The parents returned to a teenage house party meltdown; students puking, passing out, the furious father of a drunk freshman girl on the phone demanding answers and threatening to call the police. Early the next morning, one of the good friends of the student that hosted the house party hung himself in the basement of the Lake Orion home.  The...

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Posted in: Common Ground,Lake Orion,Lake Orion Community Schools,LOHS,Michigan Court of Appeals,Oakland County Circuit Court,Oakland County lawyer,suicide

Consumers of Legal Services Force Change in Law School Curriculum

Last Sunday's NYT had yet another above the fold, law school-related headline: What They Don't Teach Law Students: Lawyering.  In a sustained economic downturn, corporations (and individuals) that have reduced their legal budgets want lawyers with practical knowledge; not theoretical brilliance.The academic template for law schools has been around, with very little change, since Harvard Law School branded the so-called "case method" in the late 19th Century.  This traditional legal pedagogy was memorialized in the 1973 movie, The Paper Chase.The Socratic case method calls for students to read and break down cases that illustrate a particular, albeit ancient or esoteric, legal principle.  A law professor calls on students...

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Posted in: e-discovery,Harvard Law School,law school,law student,lawyer,New York Times,Paper Chase,University of Detroit Mercy,Wayne State University

High Income Child Support

In 1988, the federal Family Support Act required all states to enact presumptive child support "guidelines" in order to preserve federal funding on a variety of family-oriented programs.  Since then, Michigan has adopted the Michigan Child Support Formula.In response to the Act, some states adopted support formulas that "top-out" for high earners.  Here in Michigan, for example, child support can only be calculated for an annual income of $422,916 or less.In addition, the MCSF takes away most of the court's discretion in setting child support.  Absent compelling factors, support is determined through a straight-forward application of the MCSF. In the case of some high-earning families, litigants have cried foul, asserting that...

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Posted in: "Michigan Child Support Formula",child support,divorce lawyer,family law,Family Support Act

Oakland County Circuit Court Appoints Ombudsman

For the first time in its long history, the Oakland County Circuit Court has appointed an Attorney Ombudsman to serve as a liaison between the county's bench and the bar.  Southfield Attorney Joel Serlin has the distinction of being the first Ombudsman to the Oakland Circuit beginning December 1, 2011.In announcing the appointment, Chief Judge Nanci Grant said:Our bench is excited to participate in the inaugural ombudsman program.  We embrace the program, and the opportunity presented, as an illustration of the importance attached to the transparency and accountability of the bench and bar - to each other, of course, but more importantly to the administration of justice in Oakland County.The role of this ombudsman will be to address...

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Posted in: Attorney Joel Serlin,Oakland County Bar Association,Oakland County Circuit Court,Oakland County Circuit Court Judge Nanci Grant,OCBA,ombudsman

Clarkston Legal Presents at ICLE's 10th Annual Family Law Instutite

On Friday, I presented on the topic of social media in the family law context to 500 Michigan lawyers attending ICLE's 10th Annual Family Law Institute at the Inn at St. John's in Plymouth, MI.Part of the presentation dealt with the national and local "influencers" in the area of social media and the law; particularly family law.  Some of the more dynamic profiles of attorneys utilizing the social media were  profiled and discussed.Lawyers are utilizing sites like Google+, YouTube, Linked In and Facebook to promote their content, expertise and profile.  Law-related sites such as JD Supra, Nolo, and Avvo were also profiled.The second half of the presentation touched on issues of privacy and the expectation of privacy, or lack...

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Posted in: Avvo,divorce,e-discovery,electronically stored information,ESI,ICLE,privacy,social media

Wayne County Circuit Court Rolls Out E-Filing

Yesterday, the Wayne Circuit Court joined Oakland and a few other select counties that accept electronic case and document filings.  For the time being, however, only Wayne County's contract case filings, coded with the "CK" case code, are mandatory e-file cases; the rest of the docket still requires old-fashioned paper.Oakland County has had e-filing for years; it has personally saved me hundreds of man-hours and my clients thousands of dollars.  There are still docket pockets in Oakland County, however, that have resisted the e-filing system.  Divorces with children, for example, have eluded Oakland County's e-file requirement. An attorney must do a few proactive things to successfully get on board with the e-filing requirements....

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Posted in: e-filing,Oakland Circuit Court,Wayne County Circuit Court

Prisoner Has No Right to Miranda Warning During Prison "Investigation"

Homemade Prison ShanksI have appellate clients doing time at the MDOC's Carson City Correctional Facility in Montcalm County.  One summer day a few years back, when I had just cleared the facility, a gang fight broke out in the yard which led to warning shots being fired from the gun tower and a 2-day lockdown.Last month, the Michigan Court of Appeals decided a case involving the MDOC's attempt to get to the bottom of those gang disputes.  In the process, the intermediate appellate court touched on the nerve of an accused's right to have legal counsel prior to making statements to police.In People v Cortez, the defendant, a prisoner at Carson City, underwent a cell shake-down which yielded two shanks from around his bunk.  Cortez...

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Posted in: criminal defense lawyer,custodial interrogation,Miranda,SADO,SCOTUS

Michigan Court of Appeals Rules State Clerk Must Testify in DWLS Cases

In a 2-1 decision, the Michigan Court of Appeals recently ruled that a certificate mailed to a state driver, notifying him of his suspended license, is "testimonial" as that term is used in the constitution thus, the Secretary of State must produce it's clerk at a trial for driving on a suspended license.The case, People v Nunley, arose in a district court in Washtenaw County.  The prosecutor attempted to introduce notice of the defendant's suspension, without calling a clerk from the Secretary of State's office to lay the proper foundation for the entry of that key document.Both the district court and the circuit court denied the prosecutor's request to admit the document of suspension; a key element in any DWLS case.The Court of Appeals...

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Posted in: 6th Amendment,confrontation clause,driving while license suspended,DWLS,Henry Saad,Michigan Court of Appeals,People v Nunley,Secretary of State,Terry Nunley

SCOTUS to Hear Michigan Case on Plea Bargain Process

This week I had a 3-day jury trial. When it was completed, I walked out of the courthouse but my client did not.In such criminal cases, at the brink of trial, it is common that the plea discussions give an accused serious pause. Rejection of a reasonable plea offer can result in significantly more time in prison thus, the stakes are high.The counsel-driven plea process is at the heart of a Michigan case up for oral argument this week at SCOTUS: Lafler v Cooper. The case comes from the Wayne County Circuit Court; straight out of the Frank Murphy Hall of Justice.The female victim in the case was shot 4-times by Anthony Cooper: twice in the buttocks, once in the abdomen, and once in the hip.  She survived these gunshot wounds.Cooper's...

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Posted in: criminal defense lawyer,effective assistance,Frank Murphy Hall of Justice,habeas corpus,SCOTUS,Wayne County Circuit Court

Panel Appointed to Examine Indigent Criminal Defense

This past week, Governor Rick Snyder issued an executive order appointing 10 people to serve on an "advisory commission".  Their mission: to quickly assess and make recommendations to the executive and legislature about the delivery of effective legal representation to the indigent accused.Along with the 10 gubernatorial appointees, the commission also includes state legislative leaders from each political party; two from the state house and two from the state senate.In reviewing the Governor's appointments, it was good to see Oakland County well represented.  Oakland County Circuit Judge Colleen O'Brien is on the commission along with former Oakland County Bar Association President Judith Gracey.The problem presented to the Commission...

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Posted in: criminal defense lawyer,Governor Rick Snyder,lawyer,MAACS,Michigan Appellate Assigned Counsel System,Michigan Supreme Court,Oakland Circuit Judge Colleen O'Brien,Oakland County

Underfunded Courts Will Erode Justice

This granite courthouse in the Bronx took a decade tobuild (1905-1915) and has been abandoned since 1978.Achieving justice in the United States is never a given.  There are many factors that affect an outcome in the courthouse: the relative skills of the attorneys; the time a matter takes to get to trial; the personality of the judge; the backlog of the judge's docket.One factor becoming increasingly important in the determination of justice is the funding [or lack thereof] for the judiciary. Here in Michigan, there are budget-conscious proposals to eliminate trial judges, court of appeals judges, and to shrink the Michigan Supreme Court from 7 to 5 justices.Referred to as the weakest branch of government in the Federalist Papers due to...

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Posted in: American Bar Association,Federalist Papers,Macomb County Circuit Court,Michigan Court of Appeals,Michigan Supreme Court,Oakland County Circuit Court,Oakland County Probate Court,uncontested divorce

Boozy Bears & MIPs

As Halloween approaches, here's an adult trick that's been going around; add a pint of vodka to some gummy bears and, viola; you have a batch of Boozy Bears. The problem arises, however, when teens get their hands on the alcohol soaked candy.  Now, any gummy-munching teen will come under suspicion for being a minor in possession [of alcohol]. There are legitimate web sites for adults, that instruct party-goers how to make a batch of the Boozy Bears.  Effortlessly; just add Stoli.These sites have had millions of hits on the Internet.  Things that are harmful to teenagers are all over the web.  Fortunately, several news stations recently splashed Boozy Bear warning segments across their evening newscasts.So, be on...

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Posted in: alcohol,Boozy Bear,criminal defense lawyer,minor in possession,MIP,Stoli,vodka

SCOTUS Opens Term with First Amendment Case from Michigan

The church can fire its priest, but can it fire the altar boy?The case of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC is one of the first cases to be argued in the 2011-2012 SCOTUS term that opens today in Washington D.C. This First Amendment freedom of religion case arises from an employment dispute at a now-defunct church in Redford, MI.The issue in the case is the scope of the long-recognized exception to the federal employment discrimination laws when it comes to hiring or firing the clergy for a church, synagogue, or mosque.  This so-called "ministerial exception" has been recognized by all 12 federal appellate courts with the authority to hear such cases, as well as the supreme courts of 10 states.The rationale behind...

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Posted in: ADA,Americans with Disabilities Act,church,EEOC,Equal Employment Opportunity Commission,federal court,First Amendment,lawyer,mosque,priest,SCOTUS,synagogue

Saved by the Gun

Ben WallaceWhat a difference one-year makes.  Last year, our law firm's web site carried a tweet in our news feed about Big Ben attending law school. Last weekend, any plans the big fella had of convincing a state bar to issue a law license in his name just became more complicated.  Wallace, recently retired from the Detroit Pistons, and a former Chicago Bull and Cleveland Cavalier, was arrested in Bloomfield Township on Saturday night.News reports have Wallace failing field sobriety tests and submitting to a breath test allegedly resulting in a .14 blood alcohol content.  The legal limit in Michigan is .08; the year-old "SuperDrunk" threshold is .17.An unloaded pistol allegedly was found in Wallace's Cadillac.  This...

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Posted in: 48th District Court,Ben Wallace,drunk driving,Judge Kim Small,Oakland County Circuit Court,Oakland County Jail,Super Drunk