BAR JOURNAL APRIL 2022 - Upper Michigan Legal Institute returns to Mackinac Island
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M I C HI G A N
BAR JOURNAL APRIL 2022
• Upper Michigan Legal Institute returns
to Mackinac Island
• Danger ahead: Pitfalls and landmines
in medical malpractice expert
witness requirements
• Michigan Lawyers in History: Edward Mundy
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MICHIGAN BAR JOURNAL | APRIL 2022
03
M IC H IG A N
BAR JOURNAL JULY-AUGUST 2021
APRIL 2022 | VOL. 101 | NO. 04
14 16
Upper Michigan Legal Book review: Getting to the
Institute Returns to heart of the matter
Mackinac Island My 36 years in the senate
David Kraus
24 30
Pitfalls and landmines in Michigan lawyers in
medical malpractice expert history: Edward Mundy
witness requirements Carrie Sharlow
Chad Engelhardt, Steve Goethel,
and Jennifer Engelhardt
OF INTEREST
09 SECTION BRIEFS
18 LOOKING BACK: THE 1960s
44 PUBLIC POLICY REPORT
51 IN MEMORIAM
MICHIGAN
A PR I L 2022 • VOL. 10 1 • N O . 0 4
COLUMNS
OFFICIAL JOURNAL OF THE STATE BAR OF MICHIGAN
EXECUTIVE DIRECTOR: PETER CUNNINGHAM
MANAGING EDITOR
MIKE EIDELBES
ADVERTISING
STACY OZANICH
12 FROM THE PRESIDENT
Mock trial competitions offer an opportunity to inspire, be inspired
DIRECTOR OF COMMUNICATIONS DESIGN & ART DIRECTION
MARJORY RAYMER SARAH BROWN Dana Warnez
EDITORIAL ASSISTANT LAYOUT ASSISTANCE
JOYCE NORDEEN CIESA INC.
32 PLAIN LANGUAGE
A plain-language standard: A tool for all of us
MICHIGAN BAR JOURNAL COMMITTEE
CHAIRPERSON: JOHN R. RUNYAN, JR.
Christopher Balmford
WILLIAM J. ARD DAVID M. KRAUS
36 BEST PRACTICES
NARISA BANDALI GERARD V. MANTESE
AUSTIN D. BLESSING MICHAEL KEITH MAZUR
KINCAID C. BROWN NEAL NUSHOLTZ The best things don’t always come to those who wait: A strategic
MARINA TAKAGI COBB ALEXANDRA PAGE approach to interlocutory civil appeals
MARGARET A. COSTELLO ANTOINETTE R. RAHEEM Timothy A. Diemer
DAVID R. DYKI ROBERT C. RUTGERS JR.
ALICE C. ELKIN SHELLEY R. SPIVACK
BRENDAN HENRY FREY
NEIL ANTHONY GIOVANATTI
AMY L. STIKOVICH
GEORGE M. STRANDER
40 ETHICAL PERSPECTIVE
Media ethics: Think before you post — the line between accuracy
ZACHARY GRANT SARA JOY STURING
NAZNEEN S. HASAN DAVID W. THOMPSON
and sensationalism
JOHN O. JUROSZEK JOHN J. WOJCIK Robinjit K. Eagleson
JOSEPH KIMBLE
CONTACT US 42 LIBRARIES & LEGAL RESEARCH
BARJOURNAL@MICHBAR.ORG Resources for technological competency
Virginia A. Neisler
ADVERTISING
ADVERTISING@MICHBAR.ORG
READ ONLINE
MICHBAR.ORG/JOURNAL
46 LAW PRACTICE SOLUTIONS
The Great Resignation and its impact on law firms: Part II
Articles and letters that appear in the Michigan Bar Journal do not nec- JoAnn L. Hathaway
essarily reflect the official position of the State Bar of Michigan and their
publication does not constitute an endorsement of views which may
48 PRACTICING WELLNESS
be expressed. Copyright 2021, State Bar of Michigan. The Michigan
Bar Journal encourages republication and dissemination of articles it
publishes. To secure permission to reprint Michigan Bar Journal articles,
please email barjournal@michbar.org. Suicide prevention in the legal community
The contents of advertisements that appear in the Michigan Bar Journal Molly Ranns
are solely the responsibility of the advertisers. Appearance of an adver-
tisement in the Michigan Bar Journal does not constitute a recommenda-
tion or endorsement by the Bar Journal or the State Bar of Michigan of
the goods or services offered, nor does it indicate approval by the State
Bar of Michigan, the Attorney Grievance Commission, or the Attorney
Discipline Board.
Advertisers are solely responsible for compliance with any applicable
Michigan Rule of Professional Conduct. Publication of an advertisement
is at the discretion of the editor.
NOTICES
The publisher shall not be liable for any costs or damages if for any
reason it fails to publish an advertisement. The publisher’s liability for 52 ORDERS OF DISCIPLINE & DISABILITY
any error will not exceed the cost of the space occupied by the error
or the erroneous ad.
58 FROM THE MICHIGAN SUPREME COURT
The Michigan Bar Journal (ISSN 0164-3576) is published monthly ex-
cept August for $60 per year in the United States and possessions and 62 CLASSIFIEDS
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06 MICHIGAN BAR JOURNAL | APRIL 2022
STATE BAR OF MICHIGAN
BOARD OF COMMISSIONERS REPRESENTATIVE
Dana M. Warnez, Center Line, President ASSEMBLY OFFICERS
2022 MEETINGS James W. Heath, Detroit, President-Elect
Daniel D. Quick, Troy, Vice President
Nicholas M. Ohanesian
Grand Rapids, Chairperson
Joseph P. McGill, Livonia, Secretary Gerrow D. Mason
Lisa J. Hamameh, Southfield, Treasurer Marysville,Vice Chairperson
Danielle Mason Anderson, Kalamazoo Yolanda M. Bennett
David C. Anderson, Southfield Lansing, Clerk
BOARD OF COMMISSIONERS Yolanda M. Bennett, Lansing
Kristina A. Bilowus, East Lansing
Aaron V. Burrell, Detroit MICHIGAN STATE
APRIL 8, 2022
JUNE 10, 2022
Erika L. Bryant, Detroit BAR FOUNDATION
Hon. B. Chris Christenson III, Flint Michael Franck Building, 306 Townsend St.
JULY 22, 2022 Thomas P. Clement, Lansing Lansing, MI 48933-2012 (517) 346-6400
SEPTEMBER 16, 2022 Sherriee L. Detzler, Utica
Robert A. Easterly, Lansing
TRUSTEES
Hon. Kameshia D. Gant, Pontiac
Edward H. Pappas, President
Thomas H. Howlett, Bloomfield Hills
Craig H. Lubben, Vice President
Sarah E. Kuchon, Troy
Richard K. Rappleye, Treasurer
Suzanne C. Larsen, Marquette
REPRESENTATIVE ASSEMBLY Julie I. Fershtman, Secretary
James W. Low, Southfield
Thomas R. Behm
Gerrow D. Mason, Marysville
APRIL 9, 2022 Thomas W. Cranmer
E. Thomas McCarthy Jr., Grand Rapids
SEPTEMBER 17, 2022 Peter H. Ellsworth
Valerie R. Newman, Detroit
Elizabeth Pollard Hines
Takura N. Nyamfukudza, Okemos
W. Anthony Jenkins
Nicholas M. Ohanesian, Grand Rapids
William B. Murphy
Samantha J. Orvis, Grand Blanc
Jonathan E. Osgood
Hon. David A. Perkins, Detroit
Michael L. Pitt
Colemon L. Potts, Detroit
Hon. Victoria A. Roberts
Hon. Kristen D. Simmons, Lansing
Richard A. Soble
Delphia T. Simpson, Ann Arbor
Ronda L. Tate Truvillion
Thomas G. Sinas, Grand Rapids
Hon. Bridget M. McCormack, Ex Officio
Danielle Walton, Pontiac
Dana M. Warnez, Ex Officio
Hon. Erane C. Washington, Ann Arbor
MEMBER SUSPENSIONS Mark A. Wisniewski, Detroit
James W. Heath, Ex Officio
FOR NONPAYMENT OF DUES Jennifer S. Bentley, Executive Director
AMERICAN BAR ASSOCIATION ATTORNEY GRIEVANCE
The list of active attorneys who are suspended for 321 North Clark Street, Chicago, IL 60610
nonpayment of their State Bar of Michigan 2021- (312) 988-5000
COMMISSION
PNC Center
2022 dues is published on the State Bar’s website
755 W. Big Beaver Rd., Ste. 2100
at michbar.org/generalinfo/pdfs/suspension.pdf. MICHIGAN DELEGATES Troy, MI 48084 | (313) 961-6585
Dennis W. Archer, ABA Past President Michael V. Goetz, Grievance Administrator
In accordance with Rule 4 of the Supreme Court’s Pamela Chapman Enslen, Section of
Dispute Resolution
Rules Concerning the State Bar of Michigan,
Carlos A. Escurel, State Bar Delegate
JUDICIAL TENURE
these attorneys are suspended from active
membership effective February 15, 2022,
Julie I. Fershtman, State Bar Delegate COMMISSION
James W. Heath, State Bar Delegate Cadillac Place
and are ineligible to practice law in the state. 3034 W. Grand Blvd., 8th Floor, Ste. 450
Amy S. Krieg, State Bar Young Lawyers Division
Sheldon G. Larky, Oakland County Detroit, MI 48202 | (313) 875-5110
For the most current status of each attorney, see Bar Association Delegate Lynn A. Helland, Executive Director
our member directory at directory.michbar.org. Hon. Denise Langford Morris, and General Counsel
National Bar Association
Harold D. Pope III, State Delegate
Thomas C. Rombach, State Bar Delegate
ATTORNEY DISCIPLINE BOARD
333 W. Fort Street, Ste. 1700
Reginald M. Turner Jr., ABA President
Detroit, MI 48226 | (313) 963-5553
Dana M. Warnez, State Bar Delegate
Mark A. Armitage, Executive Director
Janet K. Welch, NABE Delegate
and General Counsel
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877-229-4350MICHIGAN BAR JOURNAL | APRIL 2022
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IN BRIEF
UPPER MICHIGAN LEGAL Continuing Legal Education. Topics also will include UMLI mainstays
INSTITUTE 2022 OFFERS UMLI 2022 is set for June 10-11 at the
such as family law, probate and estate
EDUCATIONAL OPPORTUNITY Grand Hotel and is open to all Michigan
planning, and real property law.
The Upper Michigan Legal Institute will attorneys. It will feature a keynote address The cost to attend is $199. A discounted rate
return to Mackinac Island this summer, from Chief Justice Bridget M. McCormack of $149 is offered to those who register be-
offering an opportunity for lawyers state- as well as sessions on navigating Michi- fore May 20.
wide to further their legal education. The gan’s still evolving no-fault law, criminal
For more information, visit michbar.org/umli.
event is hosted by the State Bar of Mich- law updates, and how to use technology
igan in partnership with the Institute of to increase revenue and decrease stress.
LAWYER REFERRAL SERVICE
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Landex Research, Inc. TO MATCH WITH MICHIGAN
CLIENTS SEEKING SERVICE
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it’s even better equipped to help.
Domestic & International Service for:
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creating an opportunity for more attorneys
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C O N TA C T A D V E RT I S I N G @ M I C H B A R . O R G
MI C H I G A N
SECTION BRIEFS
BAR JOURNAL JANUARY 2022
ADR SECTION
The section will host its ADR Conference,10 MICHIGAN BAR JOURNAL | APRIL 2022
DENTAL
which will continue to be virtual, from Sept.
30-Oct. 1. We are pleased to announce
billing laws that are designed to restrict ex-
cessive out-of-pocket costs to consumers and
MALPRACTICE
that the annual awards ceremony will return
live on Saturday, Oct. 1, at the Inn at St.
what both laws mean to providers.
CASES
John’s in Plymouth. Upcoming events, past
event materials, and the latest Michigan
IMMIGRATION LAW SECTION CALL FOR
SPECIAL
The Immigration Law Section encourages
Dispute Resolution Journal can be found
attorneys interested in providing pro bono
at connect.michbar.org/adr.
representation to Afghan evacuees to con-
BUSINESS LAW SECTION
“Doffing Your Cap or Keeping the Cap
tact the Michigan Immigrant Rights Center.
MIRC received a Michigan State Bar Foun-
EXPERTISE
dation grant to organize legal representa- When a client comes
On,” a webinar regarding uncapping or to you with a
tion; the center will provide training and dental malpractice
exemptions from uncapping real estate tax- technical assistance to any attorneys able to problem you can:
es for transfers between common entities volunteer. Contact afghanprobono@michi- • turn down
and for jointly held property, will be held ganimmigrant.org for more information. the case
on April 7 at 4 p.m. Registration informa- • acquire the
tion can be found on the section website expertise
INSURANCE AND • refer the
at connect.michbar.org/businesslaw. The
case
Business Law Institute will take place on INDEMNITY LAW SECTION
As nationally
Oct. 7 in Grand Rapids. We hope you can Join us for our next business meeting on recognized,*
join us for these terrific events. April 14 at 4 p.m. at the Detroit Athletic experienced
Club. The meeting will be followed by a dental
malpractice
discussion with prior section chairs on re-
CANNABIS LAW SECTION trial lawyers,
newal of our five-year strategic plan. Space we are
The Cannabis Law Section is hosting a one- available for
is limited. For details on the business meet-
day training on compliance issues on April consultation
ing and the section scholarship program, and referrals.
28 at the Kensington Hotel in Ann Arbor. A
please visit us on Facebook or at connect. *invited presenter at
registration link is available on the section’s nationally-attended
michbar.org/insurance. dental conferences
page. Also, the section will host its seventh *practiced or pro hac vice
admission in over
annual conference from Sept. 29-Oct. 1 at 35 jurisdictions
the Grand Traverse Resort in Acme. Join us RELIGIOUS LIBERTY SECTION
for a comprehensive program on cannabis On March 11, Robert Dunn, a former clerk
law-related topics. A registration link will be for U.S. Supreme Court Justice Clarence
posted soon. Thomas and one of the nation’s premier re-
ligious liberty litigators, gave a remarkable
ENVIRONMENTAL LAW SECTION presentation to the section. Dunn discussed
The Clearing the Air Conference will be his success before the Supreme Court in
held virtually on April 14 from 10 a.m.- Tandon v. Newsom. We thank Mr. Dunn for
12:30 p.m. For a detailed agenda, regis- his support of the section.
tration information and the latest issue of
the Michigan Environmental Law Journal,
SOCIAL SECURITY SECTION ROBERT GITTLEMAN
visit connect.michbar.org/envlaw.
The Social Security Section will offer two
more seminars this year and we hope you
LAW FIRM, PC
HEALTH CARE LAW SECTION will join us. Our Boyne Mountain seminar TRIAL LAWYERS
The Health Care Law Section is hosting a will take place from June 12-14. We are lin- 31731 Northwestern Highway, Suite 101E
webinar presented by Timothy C. Gutwald ing up an impressive agenda of speakers. Farmington Hills, Michigan 48334
of ADHD Online titled “State and Federal We will also meet in person at Schoolcraft (248) 737-3600
Overview of Surprise Billing” on April 13 College on Sept. 23 for our fall seminar.
FAX (248) 737-0084
starting at noon. Gutwald will look at recent Save the dates and sign up for the section
rgitt3240@aol.com
www.dentallawyers.com
federal regulations and Michigan’s surprise listserv for further updates.Beyond
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LEARN MORE AT WWW.MICHBAR.ORG DOWNLOAD TODAY12 MICHIGAN BAR JOURNAL | APRIL 2022
FROM THE PRESIDENT DANA WARNEZ
Mock trial competitions
offer an opportunity to
inspire, be inspired
Confrontation. It is a foundational part of our experience as lawyers. through the cracks, breaching the darkness.
As we all know, it’s embedded into the Sixth Amendment of the U.S.
Constitution and at the heart of our adversarial trial processes. One of my favorite examples of the good that deserves our atten-
tion is the annual coming together of lawyers, judges, and high
Lately, it seems like confrontation is an integral thread running not school students for the Michigan High School Mock Trial competi-
just through our profession, but also through just about everything tion. Since 1982, and with the help and support of many volunteers
around us. It’s seemingly become the norm in recent political cul- and community sponsors, the Michigan Center for Civic Education
ture. Expressing points of view has devolved into a blood sport has offered this platform enabling high school students to learn how
dominated by excessive combativeness — calling a candidate a to conduct both civil and criminal trials by actually presenting cas-
clown, a group of like-minded thugs planning a kidnapping, even es as plaintiffs and defendants, prosecutors and defense counsel,
Russia’s invasion of Ukraine, which is ravaging destruction and dis- and witnesses.
placing millions of people. There is no telling what awfulness is
coming next, right? With the support of the State Bar of Michigan Litigation Section
and the Young Lawyers Section, the SBM Public Outreach and Ed-
With so much conflict around us, sometimes we need a reminder ucation Committee, the Oakland County Bar Foundation, the Ma-
to look around so we can also enjoy the rays of light shining comb County Bar Foundation, individual donors, and many, many
The views expressed in From the President, as well as other expressions of opinions published in the Bar Journal from time to time, do not necessarily state or reflect
the official position of the State Bar of Michigan, nor does their publication constitute an endorsement of the views expressed. They are the opinions of the authors
and are intended not to end discussion, but to stimulate thought about significant issues affecting the legal profession, the making of laws, and the adjudication
of disputes.MICHIGAN BAR JOURNAL | APRIL 2022
13
volunteers, the 2022 High School Mock Trial competition included
more than 30 teams from across the state, including students from
Washtenaw, Ingham, Oakland, Kent, Macomb, and Wayne coun-
ties. These students took on a civil negligence trial scenario center-
ing around consumer privacy rights and potential liability of phone
manufacturers when security breaches occur.
Michigan is lucky, for the first time
ever, to host the National High
School Mock Trial Championship Members of the winning Kalamazoo Central team competing in the 2019 State Finals.
from May 4-7 in Kalamazoo.
The competition is virtual, but some While strenuously pursuing testimony, one student encouraged op-
volunteers and others will gather for posing counsel to take up their turn even though it would have been
just as easy to say nothing and maintain an advantage borne from
receptions and related events. the other’s weakness. It was an inspiring display of integrity and
Learn more at miciviced.org character — and it catapulted this student’s team into the lead in a
tight competition that either side arguably could have won.
These moments are also a great reminder of how important it is
In teams of eight, students jump in feet first, most often having to
to guide and encourage the next generation of people seeking to
learn on the fly about how to approach the process of confronta-
advocate for justice. For us seasoned professionals, mock trial com-
tion. Is it best to object multiple times to every opposing witness’s
petitions are also an opportunity to learn new lessons from these
testimony or is it best to pick and choose moments for effectiveness?
novice competitors. They are our harbingers of hope for an ever-im-
As witnesses, students quickly ascertain how to give good testimony
proving, inclusive, and respectful justice system.
and how to respond to cross-examination. They nimbly determine,
round by round, what is most effective in presenting cases. Suc-
cessful teams incorporate feedback from the scoring and presiding And there is still more high school mock trial to come in May.
judges after each of their presentations — learning, improving,
increasing their scores, and advancing further in the tournament. Michigan is lucky, for the first time ever, to host the National High
Along the way, students frequently learn that excessively aggressive School Mock Trial Championship from May 4-7 in Kalamazoo. The
behavior doesn’t pay off, but neither does sitting on your hands and competition is virtual, but some volunteers and others will gather for
never objecting to anything the other side is doing. receptions and related events. Visit https://miciviced.org to volun-
teer or provide other support for the programs sponsored by MCCE.
The experience is made even more true to life for participants be-
cause the program expanded to incorporate opportunities for stu- A special thanks to James Liggins of Warner Norcross and Judd,
dent journalists and artists to use their skills in a trial setting. who is completing his longstanding term of service as co-coordi-
nator of the Michigan High School Mock Trial; Christine Hekman,
Mock trial competitions give us an opportunity to plant a seed of who serves as learning and events coordinator; and MCCE Ex-
inspiration in young people to pursue careers in the legal profes- ecutive Director Ellen Zwarensteyn, who brings these programs
sion — and an opportunity for us to be inspired. In the recent state to our educational communities through her positive energy and
finals, one student gifted spectators with a moment to remember: hard work.UPPER MICHIGAN
L E G A L I NS TITUTE
JUNE 10-11 • MICHBAR.ORG/UMLI • MACKINAC ISLAND
KEYNOTE SPEAKER:
CHIEF JUSTICE BRIDGET M. MCCORMACK
Be sure not to miss the joint UMLI and Bar Leadership Forum keynote
presentation by Chief Justice Bridget M. McCormack. Her presentation
will focus on the lessons learned from COVID and the role of technol-
ogy within the judicial system. She is just one of more than a dozen
speakers you will get a chance to hear from and learn from at UMLI.
“RELEVANT, A YEAR OF RESEARCH OVERNIGHT”
“THE KNOWLEDGE OBTAINED FROM THE UMLI IS JUST AS EXPANSIVE AND IMPORTANT TO YOUR
PRACTICE AS THE MIGHTY MAC IS TO MICHIGAN.”
DAVID B. KORTERING, MUSKEGON
“A STAND-ALONE DEEP DIVE INTO ALL CORE PRACTICE AREAS.”
JAMES J. HARRINGTON III, NOVI
“PLENTY OF GREAT INFORMATION IN A SHORT PERIOD OF TIME.”
JOSEPH C. FISHER, TRAVERSE CITY
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REGISTER AT MICHBAR.ORG/UMLI16 MICHIGAN BAR JOURNAL | APRIL 2022
BOOK REVIEW
Getting to the heart
of the matter
MY 36 YEARS IN THE SENATE
REVIEWED BY DAVID KRAUS
Graebner and Wengrow argue that archae- published memoir “Getting to the Heart of
ological findings show that large settlements the Matter: My 36 Years in the Senate,”
already had flourished without agriculture. completed shortly before his death in 2021,
Levin recounts what he actually was able to
In their discussion of the origins (or lack do and where he fell short.
thereof) of “the state,” the authors address
the concept of power and how it is used. That Levin chose a career in public service
They provide a rather succinct statement of was practically preordained. He begins the
their position: book by listing the members of his family
who also were in the public eye: uncle Ted
To understand the realities of pow- Levin, a federal court judge; cousin Charles
er, whether in modern or ancient Levin, a Michigan Supreme Court justice;
societies, is to acknowledge this cousin Avern Cohn, a federal court judge;
gap between what elites claim and brother Sandy Levin, a U.S. congress-
they can do and what they are man for 36 years. But it was Carl Levin who
actually able to do. As the so- almost certainly outshone them all.
ciologist Philip Abrams pointed
out long ago, failure to make this In his development, the decidedly liberal
distinction has led social scientists Democrat Levin comes across as a series of
up countless blind alleys, because contradictions — basically an elite common
Written by Senator Carl Levin the state is ‘not the reality which man. To help pay for his undergraduate col-
Published by Wayne State University stands behind the reality of polit- lege and law school education, he worked
Press (2021) ical practice. It is itself the mask in three different Detroit auto plants. Of
Hardcover | 392 pages | $29.99 which prevents our seeing political course, the schools from which he graduat-
practice as it is.’ ed were Swarthmore College and Harvard
In their significant new book “The Dawn of Law School.
Everything,” authors David Graebner and The late Sen. Carl Levin, who represent-
David Wengrow provide a new perspective ed Michigan in Washington for 36 years, This idea of the elite common man con-
on the last 12,000 years of human histo- spent much of his time on Capitol Hill trying tinued throughout his career. While he
ry. Rather than accepting the traditional to take that mask off the government and continually served in office from 1968 to
view that cities grew only after agriculture allowing the populace to see political prac- 2014 and clearly cultivated power, his en-
overcame the hunter-and-gatherer lifestyle, tice as it was. As described in his recently dearing image was that of a rumpled civilMICHIGAN BAR JOURNAL | APRIL 2022
17
servant questioning a witness while peering Service Committee, Protecting the Great pass legislation or working on investiga-
through his trademark glasses perched on Lakes and the Environment, and Ethics and tions. Levin also is effusive in his praise of
the end of his nose. Impeachment. While this gives the reader his staffers, going so far as to list them in a
a complete (and, in some instances, too de- six-page index at the back of the book.
After graduating from law school, Levin had tailed) immersion into a subject, it is some-
stints in private practice with the Michigan times difficult to place those issues into the Levin rarely is negative in discussing col-
Civil Rights Commission and the Legal Aid context of what else may have been hap- leagues and other Washingtonians. How-
and Defender Association. Following the pening in the country and the world at the ever, there are exceptions, especially re-
1967 Detroit riots, he ran for Detroit Com- same time. garding the war in Afghanistan. Levin calls
mon Council in 1968 and was elected. President George W. Bush’s decision to go
One lengthy and fascinating chapter deals to war with the support of Congress “the
While on the council, Levin writes of the les- with what Levin refers to as the “capstone” most misguided strategic decision by our
sons he learned that would help him as he on his career: his time on the Permanent Sub- government that I witnessed in my thirty-six
navigated his way through various legislative committee on Investigations both as chair- years in the Senate.”
branches. These included working with other man and ranking member. His inside stories
legislators, compromise, listening to witness- on investigations into money laundering, Levin, who voted against the war resolu-
es, and — not surprisingly — patience. corporate tax dodging, hidden ownership tion, is quite critical of Vice President Dick
of corporations and offshore accounts, and Cheney and the president’s advisors, who
It was during his time on the council that credit card companies showed his continu- he believes wanted war. Interestingly, Levin
Levin made his initial forays into the issue ing efforts to pull the mask off government. also has little good to say about Afghanistan
of governmental oversight, an area that President Hamid Karzai, whom Levin met on
would become his strength in Washington. Two other chapters will resonate with fol- numerous occasions; he found him “full of
As council president, it became clear to lowers of current events in Washington. In himself and contradictions.”
Levin that the U.S. Department of Housing The Filibuster, Levin writes that he is stead-
and Urban Development was doing little to fastly in favor of it. He fully believed in com- The Senate that Carl Levin joined in January
renovate the thousands of houses it owned promise and felt the filibuster led to better 1979 is almost certainly a different place
in Detroit, and those houses were becoming legislation. However, he would make one from the one of today. To the most casual of
eyesores and drug dens. significant change to how it is used. observers, the concepts of compromise and
collegiality seem to be as antiquated as the
With the backing of the council and In the past, people had to continue speak- Rolodex or the landline. Their places have
then - Mayor Coleman Young, Levin ordered ing to maintain the filibuster. (Think James been overtaken by severe partisanship and
the houses to be demolished despite a Stewart in “Mr. Smith Goes to Washington” lack of trust.
threat of indictment from the federal gov- for one of the better-known popular exam-
ernment. The houses came down, but no ples.) Such a practice is no longer neces- To a certain extent, “Getting to the Heart
indictment followed. sary; rather, a senator announces a filibus- of the Matter” provides a blueprint for
ter and the issue is sidelined. Levin would moving beyond the problems that plague
In 1978, Levin defeated incumbent Sen. revert to the previous method, which would governments today. It is a model that those
Robert Griffin and headed to Washington. significantly reduce its use. in public service — or those considering a
He retired undefeated, having never lost career in public service — would be wise
an election. One other chapter of note is Bipartisanship, to understand.
which seems to be nearly foreign in today’s
Most of the book deals with Levin’s career political landscape. Levin speaks with pride
in Washington. Rather than a linear trip, of working with Republican senators — in- David Kraus is a retired attorney and avid reader who
the author organized his memoirs by top- cluding Orrin Hatch, John McCain, Mark lives in Royal Oak.
ic. Among the chapter titles: The Armed Warner, and Bob Dole — while trying to1960s
As part of our celebration of the Michigan Bar Journal’s 100th
year, each month we highlight important events and legal news
in a decade-by-decade special report. This month, we look at the
1960s, a decade marked by change. Across America and within
nearly a century after the 15th Amendment was ratified.) We also
saw several cases affirm individual civil rights, including Loving v.
Virginia, which declared unconstitutional laws that prohibit interra-
cial marriage, and Tinker v. Des Moines Independent Community
Michigan, we saw giant leaps in the civil rights movement, institu- School District, which defined First Amendment rights for public
tional change, and landmark Supreme Court cases. school students.
In 1961, 144 delegates assembled in Lansing to draft a new state
Closer to home, the 1967 Detroit Rebellion — which started after
Constitution. This constitution, which would become Michigan’s
police raided an unlicensed bar — became the largest civil distur-
fourth, made changes to all branches of state government and al-
bance in America during the 20th century, the consequences of
tered the powers granted to local governments, the administration
tensions over institutional racism, segregation, deindustrialization
of public education, and the terms of office for elected officials. The
and job loss, and antagonistic police tactics. The resulting five days
new constitution also established a state civil rights commission.
of riots led to 43 deaths, nearly 1,700 fires, and more than 700 ar-
After a year of drafting, the constitution was approved by voters
rests. Both the National Guard and the U.S. Army were summoned
on April 1, 1963. The U.S. Constitution also underwent change
to quell the violence. After the uprising, Detroit saw a growth in
during the decade; in 1967, the 25th Amendment spelling out the
activism and community engagement; the city elected its first Black
succession of the presidency was ratified.
mayor in 1973.
The civil rights movement was a driving force in the ’60s. In 1963,
Martin Luther King Jr. delivered his famous “I Have a Dream” The decade finished with one small step for man and a giant leap for
speech at a rally in Washington. One year later, President Lyndon mankind, when, in July 1969, American astronauts Neil Armstrong
B. Johnson signed the Civil Rights Act of 1964 prohibiting discrim- and Buzz Aldrin became the first humans to walk on the moon.
ination based on race, color, religion, sex, or national origin. In
1965, a series of protest marches in Alabama helped spark pas- Introduction and timeline by Narisa Bandali, a member of the Michigan
sage of the Voting Rights Act, which outlawed discriminatory voting Bar Journal Committee and marketing and advertising counsel at Bissell
Homecare in Grand Rapids.
practices adopted in many southern states after the Civil War (and
OCTOBER 3, 1961
144 delegates gather in
Lansing for the Michigan
Constitutional Convention
to begin the process
1960 of drafting a new state
Constitution. Voters approve
Michigan becomes the first state to NOVEMBER 22, 1963
the constitution in 1963.
complete a border-to-border interstate President John F. Kennedy is
highway when the final stretch of I-94 assassinated in Dallas.
between New Buffalo and Detroit opens
to traffic.MICHIGAN BAR JOURNAL | APRIL 2022
19
JULY 1, 1963 1965 OCTOBER 10, 1968
The United States Postal Service Michigan begins putting photos The Detroit Tigers win their first
launches nationwide use of five- on driver’s licenses. World Series championship in
digit ZIP codes. 23 years, outlasting the St. Louis
Cardinals in seven games.
Series MVP Mickey Lolich
pitches the Tigers to three
FEBRUARY 10, 1967 complete-game victories.
The states ratify the 25th
Amendment, cementing
succession of the presidency.
President Lyndon Johnson certifies
the amendment 13 days later.
AUGUST 28, 1963
FEBRUARY 24, 1969
Martin Luther King Jr. delivers his
The Supreme Court in Tinker
“I Have a Dream” speech to an
v. Des Moines Independent
estimated 250,000 civil rights
Community School District defines
supporters at the Lincoln Memorial
First Amendment rights of students
in Washington.
in U.S. public schools.
JULY 23, 1967
The Detroit Rebellion begins with
a police raid of an unlicensed
JULY 2, 1964
after-hours bar on 12th Street
The landmark Civil Rights Act of between Clairmont and Atkinson,
1964 takes effect. sparking what would become
the largest civil disturbance in
America during the 20th century.
MARCH 7, 1965
The first of three marches from JULY 20, 1969
Selma, Alabama, to the state Apollo 11’s lunar module lands
capital of Montgomery begins, AUGUST 30, 1967 on the moon at approximately
bringing attention to the rights 3:17 p.m. EST. Less than seven
U.S. Solicitor General Thurgood
of African-American voters. hours later, NASA astronauts Neil
Marshall is confirmed by the
The marches contributed to the Armstrong and Edwin “Buzz”
Senate as the first African
passage of the federal Voting Aldrin become the first humans to
American to serve as a Supreme
Rights Act later that year. ever set foot on the moon.
Court justice.20 MICHIGAN BAR JOURNAL | APRIL 2022
What a photo from 1962
can tell us
BY GEORGE M. STRANDER
In many ways, the 1960s was a remark-
ably different time for our country and our
profession. As we look back on that decade
this month, the fascinating photograph re-
printed here offers a window into that past.
The photograph was taken in the spring
of 1962 in the offices of then U.S. Attor-
ney General Robert F. Kennedy. Surround-
ing Kennedy are Michigan Congressman
Charles Chamberlain (to Kennedy’s right)
and 26 attorneys (including two judges)
from Lansing. The occasion of the Lansing
contingent’s visit to Washington, D.C., was
Kneeling, from left to right: Donald Reisig, Thomas Walsh, Conway Longson, John Eliasohn, Raymond Scodeller, John
to be sworn in to the bar of the U.S. Supreme O’Brien, and Judge Sam Street Hughes.
Court (as well as the bar of the U.S. Court Standing, from left to right: Jared Collinge, Duane Hildebrandt, James Kallman, Richard Stiles, Eric Kauma, Congressman
of Military Appeals, now known as the U.S. Charles Chamberlain, Lloyd Parr, John Leighton, U.S. Attorney General Robert Kennedy, Neil McLean, James Burns, Allison
Thomas, Fred Abood, Ray Campbell, W. Charles Kingsley, Alvin Neller, Bruce King, Donald Bruce, James Davis, John
Court of Appeals for the Armed Forces). Bird, Judge Marvin Salmon.
As an initial point, the pictured group re-
flects a simpler political time when institutions torney general; he would leave that post in Street Hughes (1957-1971). Both were
were more accessible and partisan divides 1964, some nine months after his brother, past presidents of the Ingham County Bar
were not unbridgeable chasms. The country President John F. Kennedy, was assassinat- Association, and Hughes was also a former
was smaller (with around 185 million citi- ed, to run for (and win) a U.S. Senate seat Lansing mayor.
zens compared to more than 330 million to- in New York and eventually fall victim to
day) as was the bar, and connections were assassination himself in 1968 while running
more personal — a large group dropping Three others in the photo — James Kall-
for president. Rep. Chamberlain was in his
in on the U.S. attorney general was a possi- man, John O’Brien, and Donald Reisig —
sixth year serving Michigan’s 6th District,
bility. Even so, meeting the attorney general would go on to the bench. Kallman in 1963
which comprised an area including Ing-
(and having lunch with him in the Senate din- would be appointed by Gov. George W.
ham, Genesee, and Livingston counties; he
ing hall, to boot) in 1962 was not easy, but Romney as judge of the Ingham County
would hold that seat until 1974. Before his
it was arranged by Rep. Chamberlain. That Probate Court (1963-1972) and then go on
election to Congress, Chamberlain’s work
a Republican congressman from Michigan to serve on the 30th Circuit bench (1972-
included serving as Ingham County prose-
would be able to work with a Democratic 1990). O’Brien would eventually leave
cutor. In recognition of his long service in
attorney general to that extent recalls an private practice to become judge of the
Congress, the federal courthouse in Lansing
earlier era when being from different parties 55th District Court (1979-1980), passing
was later named in his honor.
allowed for respected differences of opinion away in office. Reisig would later serve on
rather than demonizing. the 30th Circuit Court bench (1968-1976)
Among the visitors from Lansing were two after a stint as Ingham County prosecutor,
At the time of the photo, Kennedy was a sitting judges from the 30th Circuit Court then went on to be president of the State
little more than a year into his service as at- — Marvin Salmon (1947-1973) and Sam Bar of Michigan, state director of drugMICHIGAN BAR JOURNAL | APRIL 2022
21
agencies under Gov. James Blanchard, sion of land, discovery actions on creditors’ cated, more formal, and yet more personal,
American Bar Association legal liaison to bills after judgment, and chancery (equity) another point suggested by the 1962 gath-
the newly liberated Soviet states of Ukraine matters. James Kallman, referenced above, ering. More than a few faces staring back
and Georgia, and, finally, Ingham County was an Ingham County Circuit Court com- at the camera wear rather businesslike ex-
Friend of the Court. missioner at the time of the photograph. pressions. Moreover, most attorneys on the
trip were in private practice, either solo or
The references to the bench raise another Kallman, by the way, was the subject of a in partnerships or small firms. The explosion
point: the attorneys in the photograph prac- Michigan Supreme Court opinion that same of commercial regulations, and along with
ticed law in a very different judicial system. year — Adams ex rel. Andrews v. Kallman, it the proliferation of large law firms with
At that time in Michigan, the Constitution of 365 Mich. 519 (1962) — which is still more focused business law specialists, was
1908 still prevailed. While the convention good law on the limits of quo warranto ac- yet to come in earnest. Most attorneys prac-
that led to creation of our present constitu- tions. The suit challenged Kallman’s authori- ticed and saw colleagues in the courthouse.
tion was ongoing at the time (and a matter ty to hold the commissioner position after an
of no small comment in the Bar Journal), the earlier local appointment but was dismissed The digital revolution was not even on the
document (which would introduce the con- since the case was filed after Kallman’s horizon. Pleadings and correspondence
cept of “one court of justice”) would not go eventual election to the post, rendering the were typed on a typewriter. Legal research
into effect until 1963. quo warranto cause moot. was done by book. There was no word pro-
cessing, Westlaw, or LexisNexis.
Justices of the peace, circuit court com-
While there were circuit courts and pro-
missioners, and several other now arcane
bate courts in 1962, there were no district One final point to take away from the photo-
aspects of the minor end of the legal sys-
courts. Also, there were fewer circuit courts graph: the notable absence of women and
tem gave way to district courts later in the
(41, compared to 57 now) and fewer cir- people of color. In 1962, the percentage of
1960s. The Lansing group visiting Wash-
cuit judges (81, compared to 217 now) and attorneys nationwide who were female or
ington included two future district court
while every one of Michigan’s 83 counties identified as persons of color was in the low
judges: John O’Brien, referenced previous-
had its own probate court (now, only 73 single digits (for example, approximately
ly, and W. William Reid, who was also on
do, with five two-county courts) 60 years 3% of attorneys at that time were female.)
the 55th District Court bench (1969-1980).
ago, there were fewer probate judges (93 This, combined with the fact that female at-
Reid did not attend the meeting with Ken-
then, 10 fewer than now). torneys and attorneys of color at the time
nedy because his young daughter who ac-
may not have been well-connected with
companied him on the trip fell ill that day.
Complementing the circuit and probate others in what was then a male-dominated
courts at that time was a whole range of To add personal perspective to the occasion profession and may have had fewer oppor-
other courts and authorities based on a in 1962, we thankfully still have with us at tunities to take such a trip, is enough to ex-
variety of older laws. There were munici- least one person shown in the photograph plain the composition of the group. Today,
pal courts throughout the state — courts of — Raymond Scodeller, now 88, was, at more than 35% of all attorneys are women
limited civil and landlord/tenant jurisdic- the time of that meeting, six years from be- and approximately 15% of all lawyers are
tion in several cities. Four municipal courts coming Ingham County prosecutor, a post people of color.
remain to this day, all in eastern Wayne he held from 1968-1976. Scodeller recalls
County. In fact, the aforementioned Sam how the trip was arranged by Rep. Cham- It’s often said that a picture is worth a thou-
Street Hughes was a Lansing municipal berlain under the auspices of the Ingham sand words. This photograph has at least
court judge in the 1930s. County Bar Association. No one flew; the that much to say about our profession in the
attending Lansing attorneys, some of whom early 1960s.
There were still justices of the peace in town- brought their families, traveled separately
ships and some cities who could hear very by car to Washington. In fact, Scodeller
low-level criminal and civil matters. Con- was only able to finance the trip for himself George M. Strander is court administrator for the
way Longson, a member of the mid-Mich- and his wife by cashing out insurance stock 30th Circuit Court in Lansing. A graduate of the Uni-
igan delegation that visited Kennedy, was he had purchased the year before that, versity of Michigan Law School, he serves on the State
justice of the peace for Lansing Township. Bar of Michigan Bar Journal Committee and Civil Pro-
providently, had tripled in value to $300. cedure and Courts Committee as well as the Governor’s
There were also auxiliary judicial officer
Mental Health Diversion Council.
positions called circuit court commission- Scodeller’s memories suggest a time when
ers who oversaw proceedings for posses- the practice of law was a bit less compli-Mediation. Arbitration. Independent Investigations.
Decades of Experience From Both Sides of Employment Litigation
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MEMBER ANNOUNCEMENTS 1. The lawyer who was convicted;
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When your office has something to celebrate, let the
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CMY
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• Announce an office opening, relocation, or acquisition defense attorney, and prosecutor within
• Welcome new hires or recognize a promotion 14 days after the conviction.
• Celebrate a firm award or anniversary
• Congratulate and thank a retiring colleague
Contact Stacy Ozanich for details WHERE TO REPORT:
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AHEAD
Pitfalls and landmines
in medical malpractice
expert witness requirements
BY CHAD ENGELHARDT, STEVE GOETHEL, AND JENNIFER ENGELHARDT
As an area of law where expert witness testimony is not just helpful This article aims to give an overview of the expert witness-related
to the finder of fact but required to present a prima facie claim or landmines and sometimes counterintuitive pitfalls that the unwary
defense, medical malpractice cases often involve so-called “battles practitioner may face in prosecuting or defending a malpractice
of the experts.” Case law has long provided that absent narrow cir- action. The proponent of medical malpractice expert testimony
cumstances, medical malpractice actions raise questions of medical has the burden of establishing that the expert is qualified under
judgment beyond the realm of common knowledge and experience the overlapping layers of MRE 702, MRE 703, MCL 600.2169
of the average juror.1 and MCL 600.2955.4 The party seeking to admit the expert testi-
mony must show that the expert is qualified, used a reliable meth-
Accordingly, expert testimony must establish the applicable stan- odology or medical principles, and that the expert’s opinion is
dard of care based upon facts from which the trier of fact could factually based on the admissible evidence or logical inferences
conclude that a defendant breached or complied with that profes- from such evidence.5
sional duty.2 Expert testimony is also generally essential to establish
a causal nexus between the alleged breach and the injury suffered MRE 702
by the patient.3 Because a claim or defense insufficiently supported As part of its gatekeeping function, the trial court must determine
by properly qualified expert testimony is subject to fully or quasi-dis- whether a witness possesses the requisite qualifications to present
positive relief, challenges to an expert’s qualifications are common expert testimony before a jury. With all expert witness testimony,
in malpractice litigation. the start of the analysis is MRE 702. To assist the trier of fact inYou can also read
