If You Haven't Figured It Out Yet - Don't Trust And Do Verify

 

Ol' Honest Abe certainly knew what he was talking about when it comes to AI.

The Detroit Free Press: Attorney who used AI to cite fake cases sanctioned by Michigan court

The Michigan Court of Appeals has ordered financial sanctions against an attorney and referred him to the Attorney Grievance Commission for using artificial intelligence to cite non-existent cases in an appeal he filed. 

As an attorney, contrary to the general public's belief, you cannot make stuff up to support your case, nor can you use AI to make stuff up to support your case. 

That constitutes a fraud upon the court and is very much disfavored.

We've talked about this before, indeed a few times now, and some attorneys who certainly should absolutely know better by now are just not getting it.  

Whether it is laziness, or falling for something that sounds so good for your case that it has to be true, or the desire to win at all costs, its a major problem and needs to stop.

When it comes to AI, or any other source that you plan to submit to the court,  you do not trust it and you need to verify that it is correct and properly represents the proposition you claim you are are using it for before you file it. 

This is especially so for the siren call provided by hallucinogenic AI responses that just happen to perfectly provide the exact support for your case you asked from it. 

The AI isn't going to be sanctioned for making stuff up, You as the attorney using it without verifying it will be, and properly so. 

The Misjudgment And Misbehavior Of The Millennial Attorney

As you might gather from the headline, my opposing counsel on a case is not just a new attorney but a millennial new attorney.

She unfortunately is living up to, if not proving the negative stereotypes about millennials. 

She represents two clients: Child 1 and Child 2, the children of the sister of my client.

The sister, who has passed away, was the conservator for the mother.

Sister and Child 1 during the conservatorship, provably proceeded to embezzle or misappropriate over $100,000 from the mother's accounts and hide that  until the sister's death and the mother's death soon thereafter. We don't think Child 23 had anything to do with it.

My client, the son of the deceased mother, discovered the misappropriations when he became the estate's personal representative.

In short, he offers to divide up the estate with the children of the deceased sister receiving a share equal to his minus the 100,000 they have already taken.

Rather a fair offer, that.

Our Millennial Attorney declared that to be mean, and such an offer was "threatening".

No kidding.

Since then, she has refused and failed to respond to emails, including discussing potential resolution of the case and  emails from the court mediator.

Mediator sent out an email in early February for dates in March for the mediation, as there is a mediation cut off date of March 20, and we had proposed March 12.

Our Millennial Attorney does not respond at all.

March rolls around and millennial attorney has still not responded so I send out an email at the start of last week asking if March 12 is going forward.

Millennial Attorney finally responds that March 12 won't work and asks for dates in April - past the mediation cutoff date.

Mediator gives some April dates and I reply with some matching dates, noting the scheduling order now needs to be changed. 

Millennial Attorney does not respond at all to either of us.

I email Millennial Attorney asking her to draft up a stipulated amendment to the scheduling order as we're now going to be late due to her delays.

Millennial Attorney does not respond. 

I also email Millennial Attorney about accepting service on a related complaint against Child 1 and deceased sister for the misappropriation.

Millennial Attorney does not respond. 

Yep, she is freaking ghosting me. 

Millennial Attorney also does not answer discovery requests I had sent to her in January.   This hoses her client nicely as she didn't respond to Request for Admissions which means they are deemed admitted.  Oops on her part, as this will certainly help at trial.

I have to, and do a motion to compel her to answer the interrogatories and document requests and file it with the court. And I ask for sanctions.

I expect she may answer that, likely a day to two before the hearing so I can't get a reply brief in. 

Again today, I email her with all the outstanding issues:  The mediation, changing the scheduling order dates, and if she is accepting service for the complaint and asked her for the courtesy of a reply.

I'm not holding my breath waiting for an answer. 

Sigh. 

AI: Don't Trust And Verify

Yet another set of attorneys are being properly sanctioned for using an AI tool that created fake caselaw and citations that the attorneys filed with the court.

The attorneys did not verify that the answer was actually truthful and the cited cases actually both existed and stood for the proposition the response claimed they did.

The citations in fact neither stood for that position nor even actually existed in reality as AI had completely fabricated them.

That is a problem. 

Filing fraudulent cases then led to appropriate sanctions on the attorneys when court staff checked and saw they did not actually exist. 

This is not the first time this has occurred, and you would think attorneys would have wised up by now and figured out that AI provides a response to your prompt, but that response is not necessarily going to be truthful and at times is completely fraudulent and it is incumbent on you to verify any answer it may give.

At this point if AI tells you the sky is blue, you need to stick your head out the door and verify it, otherwise you're going to miss the very visible oncoming storm that will bite you. 

When you're filing a document with the court, it is on you to verify what you are filing is truthful and correct and crucially that the citation supporting your position actually exist.

Too many attorneys are taking shortcuts trying to save time and using AI tools that do not give valid and correct answers but are not just spouting answers it thinks you want to hear, but are actively producing fabricated citations to back up the false information.

Since AI is this provably bad at providing factual answers for legal questions, what other things are people relying upon and using it for that also will be shown to be fabrications and false?

Lawyer, Please

So the fun with the unpleasant lying lawyer continues.

In the first bit of the latest fun, she has refused to produce unredacted copies of the appraisals of some of the firearms she had appraised and attached to her petition (notably not the handgun that she now suddenly claims they had all along, nor another rifle that we're pretty darn sure her felon brother now has).

Each appraisal has an area blocked out.  One of them is not well blocked out and we can tell it is a copy of a drivers license, and with the phone number that is seen we're pretty darn sure who was handling the firearms appraisal on behalf of the co-trustee.

The felon brother. 

Bit of a no-no, that.

Not a good look for a trustee of a trust to enlist a felon to posses and handle firearms.

So a motion to compel it is, and I have filed it and asked for attorneys fees for having to being it as the refusal has no proper basis.  The hearing unfortunately won't be for over a month, but I expect the unredacted copies will be ordered to be turned over as there's no privilege for this kind of malfeasance. 

The second of the latest news is so much more fun.

Unpleasant lying lawyer now demands the house my co-trustee and beneficiary client is living in now has to be sold to pay for trustee administrative expenses - i.e. the costs of the frivolous lawsuit her client has filed and caused to accrue.

In other words, they want to drive my client out of her marital home now that she has been widowed, and probably grab a fair bit of the value of it, which I suspect was the plan all along.

I reply to her that no, that's not going to happen. 

Instead, I note that such expenses are, by law, paid from the residue of a trust and not from specific distributions like the gift of a house.

Since the co-trustees distributed all the residue as no one thought the Unpleasant Lying Lawyer's client would engage in this ridiculous lawsuit there is no residue at present remaining.

But, instead we will need to clawback the distribution made to all the beneficiaries to cover this which means her client, her client's felon brother, and her client's sister, and my client as well proportionately, will need to opay these "expenses" as the law requires.  

So, as a result.  her family gets to pay a share not only of her client's "administrative expenses" brought on by this lawsuit - but they get to pay my client's expenses as well.

She's certainly not going to be happy with that, and it'll be fun to have her explaining to her family that they now need to cough up the money that they had been paid to cover both side's expenses as co-trustees in this ridiculous lawsuit.

Methinks her cunning plan just backfired a tad. 

But, this is what happens because when you FA, you get to FO.

A Nice Attempt At Dipping In

Have some clients I'm representing who are cleaning up a mess left behind by a recently deceased relative.  He was real property rich, cash poor, and has a trust that is rather cumbersome for what really needs to be done. A bit too one-size-fits-all from a big firm versus really being tailored to his needs.

Well, we start to fix things up and get administering.

Since he's real property rich, we need to sell some properties to meet the very real cash flow needs to the trust and the beneficiaries, especially as at the time he died the gentleman was late with payments for things like property taxes which is not a good thing as losing valuable properties to tax foreclosure is a rather bad way to kick off your trust.

So we contact one of his renters about paying rent and also about showing the premises to potential buyers as the trust should be doing a lot less landholding and more land selling at this point to get everything balanced.

Starts out friendly but they then make a ridiculous lowball offer to buy the place way below market value and then get hostile when the lowball is rejected. 

They then want to deny any access to inspect the premises or let people in to see it as it is offered for sale.   Unfortunately they have a crappy lease that doesn't spell out Landlord's rights of access very well but does allow the Landlord to inspect the premises.

We send over a nice letter that we'll work hard to reduce any disruption and will give 24 hour notice of any inspection.

We get a letter back from an attorney from out of state. Most likely the tenant's relative.  I can't find him in the bar directory, but tenant claims he's licensed in Michigan. Not unless he's changed his name he's not.  

He then states he's not admitted in Michigan but hes in a firm with "national reach". 

Well, yipee for that. But yet he still makes demands for stuff and wants to be provided stuff as their attorney.

Not how this works, sport. You can't practice law in a state in which you are not admitted to practice and I'm rather sure he knows that.

I send back a nice letter "Please confirm if your named attorney wants to commit the unauthorized practice of law in Michigan by continuing to represent you in this matter, and we will then communicate with him accordingly."

No response yet.

If You Want To Play With The Sharks Part 2

So our pro-per third party defendant manages to file a reply brief. She still hasn't figured out she has to file a notice of hearing and praecipe.

Of course she titles it: "BRIEF DISPUTING THIRD‐PARTY PLANTIFF/DEFENDANT’S RESPONSE TO THIRD‐PARTY DEFENDANT’S MOTION FOR SUMMARY DISPOSITION"

Which isn't exactly correct it should be a reply brief, and she spelled Plaintiff wrong, but anyways.

The words she then uses and stuff she cites to really does not mean what she thinks it means.

She states that since the rule says fall actual allegations in our complaint against her are taken as true", shes argues since our allegations in t he complaint against her are in her opinion false they cant be factual. Not what that means nor how that works at all.


She claims because the judge denied our motion over the email that it means all her proffered her evidence now has precedential value. Yes, she underlined it. No, those words do not mean what she thinks they mean.

She also tries to get around the MCR 2.116(c)(8) standard she filed the motion under that she can't add exhibits and it just doesn't work she claims she has to file the exhibits as required by law (underlined and in bold, natch). The law cleanly states instead you can't attach exhibits to this kind of pleading,

She even starts citing to other filings shes made that have been rejected. Then of course she accuses us of being "perjurious" (underlined and in bold, natch) which apparently means we're alleging and raising facts she doesn't like, and then goes off on some really cool unrelated tangents into never-never land. She never gets around to claiming our complaint counts aren't legally cognizable, because they are in fact effective.

In short, no lawyer would file such a document because its garbage and pretty much malpractice to even do so, but pro pers keep getting away with it.

Might be the meds talking, but her brief is just hilarious and I almost hope the court lets us argue it even without her filing the notice of hearing and praecipe. Given I'm on meds I'm not going to do any actual legal work today, but reading that nonsense gave me some well enjoyed laughs.

If You Want To Play With The Sharks, At Least Learn To Swim First

Having a fun case at the moment.

A quick summary: My client is a landlord that moved out of state 9 years ago.  She rented it to Tenant with a Lease that is overall ok, but could be better because of course she didn't have a lawyer draw it up so it has some important gaps. But, the Lease does specifically say that only Tenant, her mom, and son may live at the condo.

Tenant signs Lease in 2013.  In 2014, without asking the client or getting permission, her boyfriend moves in.

Fast forward to December 2020.   Lease is ending.  In December, Tenant tells Client there is a leak at the sink in the basement and water keeps dripping from the faucet.

Tenant and boyfriend move out in December 2020. Boyfriend was never on the Lease and my client didn't know he lived there. Boyfriend has never communicated to Landlord ever. Cleverly in 2017, they listed him as a resident in a single email, but had him as an emergency contact only in 2016 and again as an emergency contact only in 2018, and nothing sent later than that.

Boyfriend then sues after they move out, claiming mold from the leak in the sink makes him now unable to work.

Plaintiff is representing himself, and he doth have a fool for a client as a result. 

Likely because no lawyer wouldn't take his case as it stinks to high heaven.  The sink seems to have never been cleaned ever as there's no way that much grime and mold accumulated so quickly.  Plus, when repaired it looked like it had been leaking long before December 2020. 

So I bring the Tenant into the case as a Third-Party Defendant, for breach of contract, indemnification, and contribution, saying any damage Plaintiff gets from my client, the Tenant has to pay as it's her fault for him being there in the first place.

Tenant really does not like that and she represents herself as well, likely with her boyfriends "help".

Tenant filed a motion to dismiss and it gets dismissed almost out of hand due to it being a hot mess and without any basis and non-conforming.

Sadly, we then get a very new judge assigned to the case.  He's new and a nice guy, but unfortunately the court  (and sadly all courts tend to do this) tends to bend over backwards for people representing themselves.

Court denied my motion to dismiss Plaintiff's complaint on the grounds that he was a trespasser there without permission, stating the single 2017 email may have put my client on notice that Plaintiff was living there. Annoying.

Tenant then files a ridiculous motion to compel discovery when she hasn't even asked for discovery yet.    Doesn't work that way.  She also didn't know how to file it properly so it also is denied without even a hearing.

Tenant then files a bunch of subpoenas that are filled out completely wrong, including one she probably meant to be sent to my client but the "To:" area is completely blank so we ignore it, especially as she was asking for stuff we already gave her. 

She then files another ridiculous motion to compel, again misfiles it, and it is denied again.

She now files a Motion for Summary Disposition to try and dismiss our claims against her and attaches 185 pages of exhibits. The motion is a complete word salad, everything is a partial sentence, not properly formatted, and complete with underlining, bold, and italics thrown in everywhere, etc.

The court should have rejected it, and would have if an attorney had filed this garbage, but this judge lets it go and accepts it and then gives an order setting dates for me to respond and that she should file a notice of hearing with the date in February.

The 185 pages of exhibits are nuts and in most cases have nothing to do with the case against her but are her trying to fight the Plaintiff's case and lots of things that have nothing to do with the case at all.

Her problem, she filed under her motion the MCR 2.116(C)(8) standard, that our complaint failed to state a claim that could be granted as a matter of law.

But, under the MCR 2.116(C)(8) standard, the court looks only at the complaint itself to see if the claims in it are legally cognizable. The Court doesn't and cannot look at any other evidence and doesn't care.

I then file a response on time yesterday, asking for all her exhibits to be struck as a result and provide a response showing our claims against her are indeed legally justifiable, and for fun I ask for sanctions as this is her 4th frivolous motion to date. Likely, I won't get sanctions, because again, the court lets people representing themselves keep doing this stuff, but it never hurts to ask.

We will see if she files a reply, and if she actually files a notice of hearing to get the motion heard per the court's order about the motion.  She still hasn't done that. So we will see if the Court hears this on the date set, even if she doesn't file the notice as she is supposed to do.

Should be fun.

Legal Phrasing Questions Abound

Legal Phrasing Question: How does one tactfully asks an opposing attorney on a contract deal:
"Who pissed in your Cheerios this morning?"

Normally the guy comes across as a reasonable and friendly guy getting a transaction done, which is as it should be, this morning not so much.

Here's the thing, he drafted the purchase agreement, which stated 60 days for due diligence and a closing 30 days after that.

Simple to read, simple to do, we agreed to it, no problems, and my client as seller has done their part.

He recently asked for an extension of both dates and my client agreed to extend the closing but not the due diligence date, mainly because the buyer is already occupying the building and has for years, and thus knows all about the building, so any diligence has been more than due and has really been done before he exercised an option to buy it and we don't want this going on forever.

Opposing counsel is rather testy by that response and claims we're being technical and that since the deal is based on an option the numbers and dates in the purchase agreement shouldn't matter. He follows up that he didn't even really need to ask to ignore the dates.

I point out that's not how a contract works, and it is his own document and his own numbers, and we're giving him an extension on the closing date, so what's the real problem?

He then threatens that since we're taking a "hard line" (by following his own document) he's going to get "technical" as well.

Ok then. My bet is they're looking for an excuse to get out of the deal. We'll see where he goes technically from here.

A Funny Moment From The Arbitration

There's an old adage among lawyers - Never ask a question of a witness you don't know the answer to during a trial.

That also applies during an arbitration.

Claimant's attorney had a claimed star witness, he was supposed to testify early Thursday morning. Claimants attorney even stated he was so important may have to even suspend the arbitration as he had trouble getting the witness to appear especially as the witnesses wife had just been in a car accident that very morning.

I certainly didn't want to suspend the arbitration so we all agreed the witness could appear just via voice on the phone. My clients knew his voice in any case.

One of the many claims claimant made was about some machines and his claim was they didn't work for the purpose they were sold by my client to be used by his client and others.

So we get his star witness on the line.

After a few questions about some other technical areas the going after that don't lead to much the claimant's attorney asks him:

"How well did the machines work?"

His star witnesses answer: "They worked great!".

Too bad you weren't there to see the look on his face at that answer. Priceless.

He persists: "But didn't they break down?"

His star witnesses answer: "Oh, there was some normal wear and tear, but nothing that was their fault".

To rub it in a bit there was just one question from me for that witness, "I just went to be sure we all heard you right, you said the machines worked great?"

"Yes", he said "Yes, they did".

No further questions.

Phew, That Was Some Arbitration

The lack of any blog posting lately is due to quite a concentrated bit of effort.

I was retained at the literal last minute to represent a client in an arbitration.

So I had less than a week to get up to speed on a case that had been going on for over a year. Preparing for testimony and witnesses and anticipating opposing counsel strategy while trying to get a grasp on the issues, fast.

It wasn't easy as it happened to be focused on a hyper-technical area of law, and the other side, being the claimant in the case decided on a strategy of throw-everything-at-the-wall-and-hope-something-sticks. He had a fair bit of the spaghetti being very nebulous claims and that the technical errors equaled fraud by my client and it got fun real fast.

Add multiple states' laws at issue and it got even better.

The last 4 days have been in the arbitration itself.

The days typically ran from 8:30-5:00 in the arbitration itself, plus meeting with clients before and after, and spending hours on more prep, preparing witnesses, and learning and trying to master over 5,000 pages of exhibits.

Yep, 5,000 freaking pages.

Amazingly, the claimant's counsel chose to not make an opening statement, so I got to set the table for the entire proceeding with a nice PowerPoint as background and opening by laying out his allegations and claims and showing how we would defend against them.

He then got to put on his witnesses Monday and Tuesday, Wednesday we rotated back and forth with witnesses out of order as all of them were remote via Skype or Ringcentral (yay, technology) and none of them could be scheduled just right. Starting yesterday afternoon were more of my witnesses and we finished up with it all today.

At the end of the day today, we finished and agreed on doing written summations. I, at least, know I have won the argument that Michigan law should apply to the dispute, so we're off to a nice start with the summations based on Michigan law alone.

Just like a trial, arbitration can be quite draining as you're putting all your focus and energy into it for 18-20 or so hours a day and snatching some sleep for a few hours before going back at it.

On the fun side, it has really relaxed rules of evidence compared to a court. Opposing counsel started off leading his witnesses like crazy, and I initially objected but as he kept doing it I then stated that so long as I got the same allowance to lead I was ok with it. So, we both got to lead our witnesses wherever we needed them to go which saved a lot of time. The rules also set were that light hearsay was in, double and triple hearsay was out, and I did object to an attempted triple hearsay and was sustained on it, which was fun. Triple hearsay doesn't happen very often. We also got an agreement that all exhibits came in and the Arbitrator could weigh the evidence as he thought best based on the testimony, again time was saved having to admit every exhibit, and since we all knew about each others exhibits it was fine.

The clients liked the job I did, and I think I did a darn good job if I say so myself. I'd say we've got a viable defense even though my clients had clearly made some technical errors in their process, which as a strategy from the outset I clearly stated had happened, as denying it would be stupid as there is no question the errors did occur. But, I showed there was no intent to defraud. I also pointed out the claimant couldn't have relied on most of the errors as he never would have seen the documents with those errors in the first place when making his decisions on things and those particular errors did not affect him in the slightest.

We had a very good arbitrator and opposing counsel was decent, quite smart, and did not play any silly games which was nice.

I need a nap. After nappage, regularish blogging should return tomorrow as I start digging out from all the other work that has piled up while I've been doing the arbitration.

Scenes From Court: That Really Needed Some Popcorn

So I was in court yesterday doing some Guardian Ad Litem work.

A case of ahead of mine became rather entertaining.

It was the first hearing in what looks like a very contested case over who gets to be guardian over X.

You have V and W who are represented by an attorney I've gone up against in trial and who is a very disagreeable personality, we'll call him D, short for well, Dumbass, and we'll see why in a moment. He's an older attorney that seems to think he walks on water.

There's also Y who wants to be X's guardian as well, and she's probably wondering why V and W have hired Dumbass. The GAL on that case is another attorney I know well and is a great guy with lots of experience, very professional and cordial, and has an impeccable reputation. We've dealt with each other before in cases and get along well.

The judge happens to have a lot of experience, likes to keep a smooth and efficient docket, and expects the attorneys to be prepared.

So, the judge has the GAL give his report. GAL is pissed at V and W, and I don't think I've ever seen him this disgusted before. V and W actually gave him tapes that showed V and W belittling X, attacking Y and basically beclowning themselves. How the heck they thought the recordings would help them is rather puzzling, though Y apparently doesn't take it lying down in those tapes and does respond, properly so in the mind of the GAL. So the GAL says that he's rather disgusted by V and W's behavior as evidenced by the tapes and recommends Y be the guardian/conservator based on their treatment of X and Y.

Dumbass then objects and states the GAL is misconstruing things on the tape.

The judge is rather bemused as she knows the GAL is a straight-shooter.

Judge: "So you're saying my GAL is not giving an accurate report?"

D: "No, he's not understanding what's on the tapes."

Judge: So did you listen to the tapes yourself then Mr. D?"

D: No.

Judge (a short and rather dangerous pause): Then how is it that you can claim my GAL is mistaken and attack his report when you haven't listened to them yourself, are you really just relying on your clients and not listening to the evidence yourself before the hearing?"

One wishes the deputy was around to hand out popcorn at this stage as this is now getting good. For whatever reason the deputy is not in the courtroom which is a shame as it could really have enhanced what happened next

D: No I didn't listen to them as this is the preliminary hearing and we're not at an evidentiary hearing yet.

Judge: You know I could rule on this right now had you listened to those tapes, but now we have to waste time with an issue that you can't even discuss at first hand.

D raising his voice: Judge this isn't my first rodeo.

Judge: Blink.

Judge: "What?"

D: (acquires shovel and begins to dig in deeper): I don't even need to listen to those tapes yet, this isn't my first rodeo and I know how this works.

Judge: "So you're basically wasting the court's time when we could resolve this right now but you don't even listen to the tapes your own client provided, why the heck not?"

D: Don't tell me how to practice Judge, in any case I was in a trial before and too busy to listen to them and don't need to now anyways.

Judge:"Is there a deputy available?, Why the heck did you take this case then if you were too busy?"

D: Pointing his finger at the judge, "This isn't my first rodeo, I know how this works!"

Judge: You don't ever point a finger at me. You've disparaged my GAL and wasted the court's time. I'm setting this for an evidentiary hearing and I expect you to be ready and there will be no adjournments, is that clear?"

He then gets his order and leaves. As he leaves a deputy shows up and chats with the judge for a sec and heads out of the courtroom following him. Didn't see him get hit with contempt but it would certainly be fitting.

In the case I had with D previously he had the stupidity to yell at the court's attorney, which certainly did not help his case. At that trial, all evidentiary rulings that could have possibly gone either way were solidly in my favor. Not saying his yelling and acting like a jerk was the main cause but it's likely. Clearly he didn't learn form that experience.

Meanwhile, his current clients need to get a new attorney asap, as I can guarantee that the judge will remember this incident and D's name is now mud in front of that court and anything he does from now on in front of that judge will be not very kindly received and his clients who apparently are not the sharpest tools in the shed anyways are hosed.

It's The Little Things Sometimes

Some days I do enjoy the work:

Put a call in to an opposing attorney, He’s an older rather full-of-himself sort that really does think he’s all that, and always rather condescending in his manner.

He answers the phone and after some pleasantries he says “Oh, I generally try to not like opposing counsel but you’re really good and easy to deal with, I don’t like your clients but I really like you. You should really tell your clients to give up though and do a consent judgment in my favor”

Did I mention he’s not just an attorney in this case but he’s also his own client?

“Well”, says I, “You’re going to like me a little less after this phone call.”

“Oh?”, says he.

“This call is to seek your concurrence in a motion dismissing all your claims against my clients.” (Anytime you file a motion you have to call the other side to se if they will agree to it, even though you know they will not, it's one of those rules to promote communication between the parties but unless you're calling for something like adjourning a schedule or similar its a waste of time as the other side will pretty much never agree to lose the case, and everyone knows it).

“Oh”, pause, “You should know that’s not going to work”.

“I’m reasonably sure it will, let’s talk again after you’ve read my motion”.

This motion hearing is going to be fun.

Leelanau County Court in The Snow

I've been offline the past couple days while across the state to go to court.

On Monday afternoon, I traveled up to Traverse City to prepare for a court appearance in the morning on Tuesday in Leelanau County to argue a motion for a client. That's a 4 hour drive away from home.

It was a rather grey overcast day as I drove up, but we arrived there safely.

After sleeping over at the hotel in Traverse City, I awoke to complete the trip to Sutton's Bay where the court is located, a good half hour farther north.

I had this to greet me Tuesday morning:

Why is it every time I go up to Leelanau it has to snow the morning of the motion day? It's a shame I can't get to handle a motion up there in June.

It kept snowing and then snowed harder as I approached Sutton's Bay, the location for the court. The half hour distance by map turned into a solid 50 minutes in the snow. Good thing I had planned accordingly and left early. It was snowing so bad that if it hadn't been for the stakes marking the road I wouldn't have been able to see it to turn on to it or stay on it through a few curves.

The trip takes you along the bay with a nice picturesque view of the lake. It must be awesomely beautiful in good weather.

I arrived at the courthouse, and of course it was still snowing and it continued to do so.

On the upside, the Court tends to be a very friendly and collegial place up there, and the Judge is quite exceptionally good. The court staff are all friendly and not surly.

First the court handled the criminal motion call which was pretty much all sentencing.

One particular case was rather enlightening to watch.

An 18-year old, slightly-built male had been transferred from jail to the courthouse and was being sentenced for a drunken home invasion. He also had a prior conviction for some drunken domestic violence with his girlfriend and has a 2 year old daughter at this point. Definitely winner material there.

The attorney for the defendant pointed out an issue with the pre-sentencing report that while the defendant's Facebook account had references to him being a gang-banger and drug dealer, he was actually neither of those things and it was his friends hacking his acccount and putting those posts there. Yes, what you post on Facebook can indeed be held against you in a court of law folks.

So the judge gives him a good long talking to, and advises him that while the county jail is a relatively nice place, state prison is not and that's where he'll be headed if the doesn't shape up fast.

The judge looks him up and down and says, to paraphrase: "You may be trying to become an urban legend, but son, you just don't have the build to be an Alpha in prison, you're gonna spend most of your sentence as a toy for some big dude on a long sentence who works out all day in jail and you're not going to have a fun time of it."

Yep, that just took the glamor of prison right out of the defendant and you could tell he hadn't quite figured it might go down that way.

The judge notes that he needs to get back to school, quit hanging out with his current bunch of associates, and stop drinking alcohol as every single one of his crimes happens after he drinks.

The judge then gives him time served and three years probation with lots of restrictions including obviously no possessing or drinking alcohol, no going to bars, and that he must either get a job or be in school, or preferably both so he can help support his kid.

The judge did an A1 example of the whole "Put the fear of me rather than God in 'em in them 'cause while God might be busy and not follow up I sure will". With luck, the kid takes this chance and straightens his life out.

In breaks between sentences I get a chance to converse with one of the attorneys there. He's an older gentleman and it turns out he's not only been a lawyer but has also been a probate judge and had a very varied legal life. A real decent and interesting guy, and we had a great if short conversation. The lawyers up there all tend to know each other and generally work together pretty well for an adversary system.

In another break we chat with one of the prosecutors who note that most crimes up there are by basically ok people who are making bad choices. He then pauses and says, but that guy (mentioning another fellow up on sentencing who had his hearing was adjourned due to some pending charges by another County out of the same violation - think drugs and violence), that guy's bad and making evil choices.

It's almost the afternoon when I get called at just about the end of the civil docket. The judge carefully goes over the motion, and my motion is granted and I'm all set.

Then the four and a half hour drive home in the snow commences.

But I'm back safe and sound and was even busy in Wayne County Probate Court this morning on some motions. Quite a different environment indeed from Leelanau County.

It'll Be A No Go To Sue Go Daddy

The Detroit Free Press: Women sue Go Daddy over nude photos on revenge-porn site

If ever 'twas a case of an article being useless without the pictures in question this is it.

Go Daddy has been named lead defendant in a Texas lawsuit filed by 17 women whose nude photos were published without their permission on a "revenge porn" website hosted by the Scottsdale-based company.

The lawsuit exposes an obscure Internet pornography niche that often involves jilted ex-boyfriends posting nude or semi-nude cellphone pictures of their former girlfriends, with each photo usually accompanied by personal information such as the woman's name and city of residence.

All prurient interest aside, suing Go Daddy is a No Go.

The only good and constitutional portion of the Communications Decency Act of 1996, is Section 230, and 230's subpart (c) provides:

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In short, Go Daddy isn't liable for any damages for the publication of materials made by one of its hosted websites, plain and simple. Go Daddy isn't the publisher and can't be liable for the acts of a website that it simply hosts.

This is hardly new law. The leading case on this, Zeran v AOL, dates to 1997 and held:

"[L]awsuits seeking to hold a service liable for its exercise of a publisher's traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred."

The lawyer who pulled Go Daddy into the case, on dubious civil conspiracy grounds related to the publication of the perverse pics for the purpose of procuring a deep pocket for a payout probably should have known better and practiced law in accordance with precedent.

Putz.

Ex-Navy Loser Leaker Lawyer Properly Disbarred

Surreptitiously shipping classified lists to a left-wing group will get a sailor/lawyer sunk real fast.

Mathew M. Diaz apparently never got the lesson on "Loose lips sink ships", not to mention how divulging classified information is a surefire way to sink your career and future prospects.

And it was not just any classified list either:

The Kansas Supreme Court has disbarred a former Navy lawyer who mailed a classified list of Guantanamo detainees to the Center for Constitutional Rights.

Ex-Navy Lawyer Is Disbarred for Sending Secret Names of Gitmo Detainees to Legal Group

It was also clearly not a mistake or spur-of-the-moment stupidity:

Diaz had printed the detainee names, cut the list into strips, and placed them in a Valentine’s Day card to Barbara Olshansky, the deputy legal director for the Center of Constitutional Rights, according to findings of fact cited by the court.

This was far from being some act of heroic dissident. He admitted that he was too much or a coward to even take this up with his chain of command, or do an open act of disobedience and take the consequences for his beliefs and acts, instead he decided to try to surreptitiously leak his way to glory:

The court noted, however, that Diaz did not take his concerns to higher-ups because, by his own testimony in court-martial proceedings, “I wasn't really to put—willing to put my neck on the line and jeopardize my career.” The information he disclosed also could have been used to identify detainee interrogation teams, putting them at potential risk, the court said.

Disbarment is appropriate, the court said, given the nature of Diaz’s criminal violations and his “admitted selfish reasons for the clandestine disclosure of classified information.”

So Diaz ended up with 4 felonies, 6 months in confinement - which seems a little light, and a disbarment, not to mention dropping from the rank of Lt. Commander to nothing. All on behalf of Guantanamo detainees who would likely kill him and other Americans if they got half a chance.

He chose....poorly.

An Illegal Legal Beagle?

Yet another sad story about an illegal who realizes that being illegal has possible consequences.

ABA Journal: CUNY Law Grad Reveals Undocumented Status, Fears He Can’t Practice Despite Passing NY Bar

A 28-year-old Mexican immigrant who graduated from law school at the City University of New York and passed the state bar exam in November fears he will not be able to practice law in New York because he was illegally brought to this country as a 5-year-old child by his mother.

Cesar Vargas says he will have to mark the "other" category when he fills out an application with the New York Court of Appeals to register as a lawyer, which asks applicants whether they are citizens, legal residents or have a visa to be in the United States, the Associated Press reports.

Of course, any firm that might hire Cesar Vargas as an attorney is also going to get into trouble due to his illegal status. On the other hand, perhaps he's looking for admission to some public interest legal organization where his legal status might be less of a concern, or he'll just open up a solo shop and operate illegally without all the headache of paperwork and tax filing and such.

That the New York State Bar fails to do a character and fitness review, including immigration status before permitting a person to sit for the exam is very strange. In contrast, Michigan and many other state bars require the Character and Fitness application to be submitted before you take the bar and will hold your results until you are cleared.

It is also interesting that his illegal status never came up during his admission process for University, Law School, etc. Considering that he's working at a restaurant he's either submitted false documents to get that position or is being paid under the table, neither of which helps his character and fitness claim much.

The article also fails to mention if CUNY charged him in-state or out of state tuition. If in-state, which is most likely, New Yorkers can be happy to know that even more of their tax dollars subsidized his education.

It will be fun to see how the New York State Bar handles this one. One would think that illegal immigration status would disqualify a person from being admitted as an attorney on character and fitness grounds but we will see where the case goes.

The Swiss Narrowly Escape Their Animal Attorney Overlords

Swiss voters reject giving abused animals a lawyer

The result was emphatic: Swiss voters don't think abused animals need to have their own lawyers.

It's a proposal that would never even come near a referendum in other countries, but the measure's defeat Sunday disappointed animal rights advocates, who say Switzerland's elaborate animal welfare laws aren't being enforced.

Talk about animal rights gone amok or a-lawyer, court appointed attorneys for animals - what will those Swiss think of next?

In Switzerland there apparently already is a non-court-appointed attorney for animals, he's just not paid for by tax dollars:

According to the country's only animal lawyer, Antoine F. Goetschel, public prosecutors are often unsure about animal rights and shy away from pursuing cases even if there is clear evidence of abuse. He said the cost of Sunday's measure would have been less than 1 Swiss franc ($1) per person a year. . . .
Goetschel said he represents about 150-200 animals annually in Zurich, while in other cantons (states), only a handful of cases go to court each year.

Most of his clients are dogs, cows and cats, Goetschel told The Associated Press in a recent interview. Many cases involve the serious abuse of animals, such as deliberate wounding, rape and neglect.

How do these animals sign a retainer letter I wonder? Talk about your case is a real dog.

In any case, its not like there aren't perfectly overgood Swiss laws that define animal care with Swiss-watch-like precision:

Switzerland tightened its laws two years ago and now has among the strictest rules anywhere when it comes to caring for pets and farm animals.

The country's 160-page animal protection law states exactly how much space owners must give Mongolian gerbils (233 square inches) and what water temperature is required for African clawed frogs (18-22 degrees Celsius; 64-72 degrees Fahrenheit)

It stipulates that pigs, budgies, goldfish and other social animals cannot be kept alone. Horses and cows must have regular exercise outside their stalls and dog owners have to take a training course to learn how to properly look after their pets.

Like in other countries, the law also forbids killing animals in a cruel fashion or for fun.

That's a pretty specific and overbearing piece of formalistic legislation right down to the square footage for gerbils. It doesn't sound like the law comes with inspectors that check your house to ensure your aquarium is at the right temperature, but that you would be violating the law if you're off a bit is quite scary. Very European in its formalism and state control over individual activities. Also very European in that it assumes people need to be instructed and compelled by law in order for them to behave properly. There oughta be a law, and the Swiss have it in spades.

Of course the law gets taken by extremists to extremes:

But in one high-profile case last month, Goetschel represented a dead pike after an animal protection group accused the angler who caught it of cruelty for taking 10 minutes to haul the fish in.

The angler was found not guilty.

Quite a fishy case indeed, and a good example of a law passed with noble intentions gone amok. Prosecuting an angler over a dead pike being caught presumably to be consumed by said angler is pretty darn frivilous. Besides, Pike chowder is tasty.

While there is no such thing as animal rights, there certainly are obligations that people take on when the obtain a pet or animal, such as not abusing them and caring for them appropriately. After all what the heck is the point of having a pet if you abuse it or don't treat it properly?

Thankfully the Swiss are saved, at least for now, from having their own money used to have themselves prosecuted in the name of various caught fish and assorted roadkill.

Moose bites can be pretty nasty, but they're worse when they come at you with a summons and complaint.

If Doctors Make the Worst Patients...

Then Lawyers Make the Worst Clients.

They do, they really, really do. Having one such situation now and it sucketh for a variety of reasons.

Also, Doctors tend to be difficult clients as they tend to be so busy, they never get back to you with vital information and leave you wondering if they really want to have a chance at winning their case or not.

Give me the tools and I'll do the job. Give me no support or facts to assist your case and it gets a lot harder to win for you.

Abdulmutallab, American Values, And The Problem Of Treating War As A Law Enforcement Excercise

The blogprof reports that Detroit bomber 'singing like a canary' before arrest until he was treated as an ordinary criminal and advised of his right to silence. You'll note he had to get this from The Telegraph, a United Kingdom newspaper as no word of such has been reported in the local news.

Indeed, the provision of full American criminal law protections, including such lawyering-up is being praised by some former Michigan US Attorneys as a wonderful triumph of law: American values v. Abdulmutallab

As former U.S. Attorneys for the Eastern and Western Districts of Michigan, we are confident in the ability of the federal justice system to handle the trial of Abdulmutallab and any other terrorism suspect. During our time at the U.S. Department of Justice, we never felt the need to stray from our traditional justice system to prosecute those responsible for heinous crimes. There is no need to start now.

And therein lies the rub. The honorable former US District Attorneys, and President Obama for that matter, are mistakenly treating this as a criminal matter, note their emphasis when they say "prosecute those responsible for heinous crimes". After all they're very good at law enforcement and that's the mode in which they function so they slot Abdulmutallab into the criminal defendant slot and proceed from there.

Now, lawyering-up is a time-honored American Tradition, certainly valid for American citizens and others who reside or visit the US. But whether we should extend it to a terrorist with whom, as has been stated even by President Obama that, "we are at war", a terrorist who would not have even touched American soil had his plan been successful is ridiculous.

Indeed, such action is dangerous, as noted by the blogprof, valuable and time-sensitive intelligence has been lost due to the underwear bomber Umar Farouk Abdulmutallab being allowed to invoke the Fifth and Sixth Amendment rights, rights for which he is not entitled. He is not a criminal but instead a terrorist or saboteur and a thorough interrogation, followed by execution is all he is entitled to under the laws of war.

Nationwide Backberry Outage

Yep, you never know how reliant you are on technology until it stops working.

I confess I'm a crackberry addict, relying on it for emails and communication back to the office when i;m in court or elsewhere.

So tonight, while there is a deposition set for tomorrow morning. The defendant's attorney who set it is now saying he won't produce his client, the plaintiff's attorney is saying he's going to show up there anyways, and I, representing the third-party defendant (The humble innocent being blamed by the defendant for all the evils under the sun of course), am left to figure out whether this thing is going to go or not.

Did I mention Defendant just happened to produce 670 pages of long overdue documents responsive to discovery requests today at 4pm, just in time for his client's deposition upon the morrow?

Of course while the emails are flying thick and fast regarding the schedule for the dep, the blackberry stops receiving them or sending.

Turns out I'm not alone.

There's apparently a nation-wide Blackberry outage.

Clearly this thorny deposition problem will not be solved tonight, so the legal battle resumes tomorrow.