Fiend of the Court May Go Private

The headline of this post is not a typo. Many who have had first-hand contact with the Friend of the Court (FOC) system in Michigan--and particularly the Wayne County species--regard it as a fiendish beast of a system that is inefficient, inaccessible, indifferent and frequently wrong. Now Wayne County Circuit Court Chief Judge Mary Beth Kelly has announced plans to privatize the Wayne County Friend of the Court. If the plan goes through (an uphill battle, to put it mildly), the 169 current employees will find themselves employees of one of the private companies that manages friend of the court services in other states, including Texas, Tennessee and Illinois.

Apparently the plan would affect FOC employees who handle child support payments but not referees or mediators. Any bid to run the $28-million per year operation would include a requirement that the new management agree to hire all of the 169 current employees, plus hire one third more staff within the first year.

Predictably, Council 25 of the American Federation of State, County and Municipal Employees (AFSCME) opposes the move, even though it appears that there would be no adverse consequences to the pensions or other benefits of the employees. It is unclear whether the employees would remain unionized. County Executive Robert Ficano also seems skeptical of the plan.

Privatizing this beast can only be in an improvement over the current system. As it currently stands, good parents who are just trying to get the support the law says they deserve are often frustrated in their efforts. At the same time, hardworking individuals are crushed financially as deadbeat parents who can pay but won't too often slip through the cracks. Frequently there is no way to determine what has been payed or what is owed. Parents trying to provide for their children deserve a system that works.

The really good thing about private management of the FOC system is that if the company who gets the bid doesn't improve on the current mess, then they can be fired and a different company that can get the job done will hired. The knowledge that the contract can be terminated for poor performance will do wonders to improve service, accuracy and accountability. The current system leaves no room for accountability and no incentive to improve the process.

We can cashier our politicians when they fail to live up to our (albeit low) expectations. We can fire our phone company for a new one that provides better service for less money. Why not apply the same rules to a service like the Friend of the Court too? Unlike cell phone service, what the FOC does actually matters a lot to the families that are caught up the court-ordered support system. The children deserve better than they currently get. Let's see how the "fiend" fares under new management.

See the Wayne County Circuit Court website for more information: http://www.3rdcc.org/. If you need help with a divorce or child support matter, consult one of our attorneys.

Adios, Gonzales

On August 27 Alberto Gonzales announced that he was resigning from his post as U.S. Attorney General, a position he held since February 2005. He is a true American success story, whatever his faults.

The son of immigrant farm workers (the second of eight children), he joined the Air Force in 1973 and then worked his way through Rice University in Houston, where he impressed his professors with his intellect. From there he went on to Harvard Law. From Harvard he returned to Texas in 1982 and went into private practice in Houston. He eventually became a partner at the prestigious law firm, Vinson and Elkins, where he worked until 1994.

It was in 1994 that he caught eye of Governor George Bush, who made Gonzales general counsel to the governor. Later on he also served as Texas Secretary of State, Justice of the Texas Supreme Court, and then White House Counsel. By all accounts he was a good judge--smart and reasoned in his opinions. He was also a reasonably good administrator as Texas Secretary of State. All that seems to have changed when he hit the rarefied air of Washington as the replacement for Bush's first Attorney General, John Ashcroft, who left after Bush's first term.

Gonzales may be best remembered for his work as the legal mind behind much of the anti-terror policy of the Bush administration, including the position that the Geneva Convention does not apply to Al-Qaeda terrorists. He was also an early advocate of the Patriot Act. As a strong advocate of national security, it is somewhat ironic that his inability to articulate before congress the legal and factual underpinnings of the NSA warantless surveillance program contributed to his fall from grace.

For Bush's part, Gonzales probably kept the special prosecutor monster at bay. The Democrats would have loved to unleash a series of special prosecutors on every issue from the justifications for the Iraq war to the firing of the U.S. Attorneys. Whatever the merits of the need for such investigations, his actions did minimize the distractions faced by the Bush Whitehouse in the post-9/11 period.

It is the firing of the U.S. Attorneys that really ultimately brought Gonzales to this point. Since January 2007 his testimony before Congress has been increasingly . . . dumb. The reviews of his testimony were resoundingly bad. Awful even. His testimony was, at best, inconsistent and, at worst, dissembling, obfuscating and possibly even perjurous, by some accounts. By spring there was no one left to defend him, except the Boss. Had his testimony reflected the man's true intellectual ability, no one should have been able to lay a glove on him.

One tragedy is that Gonzales's pet projects, which included stamping out child pornography and combating gang violence, fell by the wayside. Gonzales cared deeply about these issues and found that his ability to focus the Department on these worthy causes was increasingly impeded by the controversy surrounding him. Thus ends the tenure of the first Hispanic Attorney General.

His departure will no doubt be good for the Justice Department which is demoralized and distracted. It is a bad end for the first Hispanic to hold the post. He was mild-mannered, genial, professional and awed by the amazing success he was able to achieve. We should be awed too.

Man Bites Dog

Over the past few weeks it seems like the Metro-Detroit area has been plagued by a rash of severe dog attacks. Just in the past week an elderly man and a 4-month old child were killed. A female jogger was also attacked and injured. Dog attacks can leave severe physical and emotional scars, which may never completely heal.

It also seems like the dog is usually a pit bull or Rottweiler, but in reality any dog can attack and inflict a serious or even fatal injury. True, large powerful dogs tend to do more damage than other, less robust breeds. The media, too, seems to prefer to sensationalize the pit bull attacks over the poodle nips.

Many people don't realize that in Michigan the law is quite victim-friendly regarding the civil liability of a dog's owner or caretaker for injuries caused by the animal. Michigan is a "strict liability" state in that if a dog attacks, the owner is liable. There is no such thing as "one free bite" in Michigan. An injured party does not have to prove that the dog was vicious or attacked before. All a plaintiff must prove is that the bite occurred and injuries resulted.

Strict liability means there is no defense unless the dog was provoked by the victim. Provocation is one of the few defenses available under the dog bite statute. Though there is no state leash law, most cities have a leash law which requires that any dog be kept on a leash when off the owner's property or in public. The fact that a dog was on a leash when it causes the injury is likewise not a defense under the dog bite statute.

Any dog owner whose animal injures someone also faces the possibility of criminal penalties. And the dog itself may pay the ultimate price for its transgression. The prosecutor is empowered to seek destruction of the offending animal, if the circumstances warrant it.

If you have one or more dogs, be certain you have insurance to cover any injuries the dog may cause. Absent insurance coverage, your assets are fair game for the injured person. You may also be liable for injuries inflicted on your premises by dogs belonging to other people if the dog is there with your permission or knowledge.

Our firm handles many serious dog bite cases every year, some of which result in a significant settlement for the injured plaintiff. Know your rights. The statute of limitations may prevent recovery for your injuries if you don't file a timely claim. If you've been the victim of a dog bite, please contact us to learn what your rights are.

Selling Your Settlement May Not Be the Best Way to Fast Cash

Last week I was in court waiting for my case to be called when I watched the most extraordinary exchange between a young woman and the judge. The petitioner was a normal looking girl of about 22. She was before the judge asking the court to approve the partial sale of her personal injury settlement. From what I could gather, the girl had been injured in an accident or as result of some egregious malpractice when she was very young. A suit was filed and a settlement of about $1 million reached. Her mother (who was not present) had wisely put the settlement into a structured settlement.

Upon reaching 18 she received a lump sum and then about every 2-3 years thereafter she would receive another sizable payment (something like $50,000 each). She was due to receive the next $50,000 payment in a few months. She was going to collect about another $300,000 in these periodic payments before receiving a final six-figure payout when she turned 35.

Here is the extraordinary part: She was in court asking the judge to approve the sale of around $300,000 of her future payments for the thumping great sum of $27,000. There was an attorney there from the company looking to complete purchase. And, the company was going to stick her with their legal bills, to the tune of a few thousand more dollars. She said she wanted to use the money for bills and tuition.

Not surprisingly, the judge (to her credit) was somewhat perplexed as to why the girl before her could not wait another few months for the $50,000 she was scheduled to receive. The judge asked the girl if she had tried to get a conventional loan from a bank or credit union. With a guaranteed $50,000 coming in a few months, any bank would be willing to give her the loan she needed. At this the girl began to cry, saying that she had a poor credit rating and that those banks were going to charge her a high interest rate. It seemed to escape her that she was, in effect, paying over 1000% interest on this little deal.

After some back and forth the judge agreed to approve the transaction on the condition that the girl consult with an independent financial planner and come back in two weeks with a letter proving that the plan made financial sense. Presumably the judge approved it since the girl had the legal right to make the deal. The judge was probably hoping someone could talk some sense into the girl before she came back.

The unfortunate part of all this is that she had not consulted an attorney or a good financial planner before signing on the dotted line. Had she done so she could have saved herself $270,000. This points out the incredibly poor financial education our young people are receiving.
If you have a settlement, annuity or lottery prize being paid in installment payments, be sure to consult an attorney and financial planner before you do something drastic like trade away a fortune in future payments for a pittance today.

Beware Pocorn Lung Syndrome--Of Course Popcorn was too Good to be True

Well, it's happened again. One of our favorite snacks is a hidden killer. Yes, good old popcorn (low in calories and a good source of fiber) is suddenly at the center of a national health controversy. A chemical called "diacetyl," which is used to make artificial butter flavoring used in microwave popcorn, has now been linked to a dread respiratory disease called "popcorn lung" (the technical name is bronchiolitis obliterans).

Popcorn Lung has been detected in hundreds of people, mostly those working in microwave popcorn factories who work closely with the stuff. Labor unions and nationally recognized occupational health scientists are demanding that the federal government create an emergency safety standard for the chemical in the workplace to protect the masses.

Lest you think that this is an affliction affecting only a few individuals, sources indicate that flavoring manufacturers have already paid out more than $100 million as a result of lawsuits and claims by people sick with popcorn lung just in the past five years. One death has been confirmed due to the disease. OSHA (Occupational Safety and Health Administration) the board that sets standards for workplace safety, including chemical exposure, has no standard for diacetyl.

On the bright side, it appears popcorn is still safe to eat at home. Just don't inhale directly from the bag, if you know what's good for you. Next week: Killer pickles.

Another Blow to The Rights of the Injured--Death of the Discovery Rule in Michigan

Summer is rapidly becoming my least favorite season, legally speaking. A sentiment that is no doubt echoed by thousands of personal injury victims across Michigan who are continually and systematically being stripped of their legal right to be compensated. It seems that every summer--usually in July or August--the Michigan Supreme Court hands down a decision that summarily and sweepingly wipes out the rights of an entire class of litigants to bring suit and seek compensation for their personal injuries.

Three years ago it was Kreiner v. Fisher, which imposed harsh restrictions upon those injured in auto accidents to sue. Then last year in July it was Reed v. Breton which severely curtailed the right of manypeople injured by drunk drivers to sue for their injuries. Cameron v. Auto Club is another gem which serverely curtailed the right of the injured to seek benefits from their own insurance companies under the No-Fault Act.

Now this year we have received another July Surprise in the form of a delightful little decision called Trentadue v. Gorton (decided July 25, 2007). What is the Trentadue decision? Glad you asked. It modifies statute of limitation law in a significant way.

For virtually all of Michigan's existence as a state, our legislature has imposed, for the most part, reasonable statutes of limitations on all types of cases: Two years for medical malpractice. Three years for ordinary negligence. Fifteen years for adverse possession and so on. And for over 100 years the courts have also adhered to what is known as the "Discovery Rule" to alleviate the sometimes harsh results that a hard and fast statute of limitations rule can sometimes deliver.

The Discovery Rule is a rule of equity (fairness) that gives judges the power to make a "common law" exception to the general statute of limitations rule where the plaintiff--through no fault of his or her own--was not able to discover the cause of the harm or the identity the defendant until after the normal statute of limitations had expired. The Discovery Rule creates a short 6-month window within which the plaintiff could still bring suit for his or her injuries.

An example of this might be the person who at age 19 is exposed to some toxic substance at the building where she works, but no one knows that she was exposed to it. The exposure creates terrible health problems for her. She can no longer work and for 5 years no doctor can figure out what the cause of her symptoms is. They diagnose her with every catch-all disease there is: Epstein-Barr, fibromyalgia, or, even worse, some psychosomatic disorder. Then, finally, a miracle--she finds a doctor that is able to diagnose and treat her condition. He tells her that her devastating medical problems are due to the chemical exposure when she was 19. She wants to sue her employer's landlord for her injuries. After all, her life and health have been ruined. However, the statute of limitations for negligence is just three years. Ordinarily, she would be out of luck. But, in its wisdom, Michigan law created an exception called the Discovery Rule. If she files suit within six months of discovering her cause of action, her case would not be dismissed on statute of limitations grounds and she would be entitled to recover against the building owner who poisoned her. A good and just rule, right?

Well no longer. The Trentadue decision has done away with the discovery rule, except in a few narrowly defined circumstances (fraud by the defendant, medical malpractice). The facts in the Trentadue case are particularly tragic. Margarette Eby was raped and murdered in 1986 in her home. But the killer was never caught. Then, in 2002, DNA testing finally became available that revealed the identity of the killer. It was an employee of a sprinkler service company that serviced sprinklers on the property where Eby was renting a house (the murderer was son of the company's owners). The killer, Jeffrey Gorton, confessed and was sentenced to life in prison.

Eby's daughter sued the sprinkler company for her mother's rape and murder. Even though it was 16 years after the crime was committed, the Discovery Rule should have preserved the right of Eby's estate to sue. The trial judge agreed. The Court of Appeals also got it right, holding that Eby's daughter deserved her day in court.

But on appeal to the Supreme Court, in a four-judge majority opinion (Corrigan, Markman, Taylor, Young), decided that the Discovery Rule is now extinct. To their credit, Justices Elizabeth Weaver, Marilyn Kelly and Michael Cavanagh dissented. They should be commended for their wisdom and sense of fairness. But the majority rules. So, as a result of the Trentadue decision, hundreds or even thousands of injured people will be denied their day in court. Injured people, one of the groups most deserving of legal protection from our courts, deserve better.