The Grand Rapids Lawyer Newsletter - Sept/Oct 2014

A P U B L I C AT I O N O F T H E G R A N D R A P I D S BA R A S S O C I AT I O N

The Grand Rapids Lawyer Thank you sponsors and golfers for making the 2014 Golf Outing a success!

IN THIS ISSUE: GRBA Golf Outing highlights A message from the new GRBA President Upcoming events & more!

pictures inside Serve. Educate. Promote Justice.

SEPTEMBER/OCTOBER 2014

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THE GRAND RAPIDS LAWYER is published by the Grand Rapids Bar Association Waters Building 161 Ottawa Ave., NW, Suite 203-B Grand Rapids, MI 49503 www.grbar.org 616.454.5550 / 616.454.7707 fax

IN THIS ISSUE:

Sept/Oct 2014

Editorial Mieke Stoub Anne Marks-Gaertner

5 President’s Perspective By: Thomas R. Behm

9 Real Estate Practice Note By: David C. Hill

Advertising Coordinator Debbie Kurtz

6 Criminal Notes By: Timothy K. McMorrow

10 Photos

STAFF

7 A Judicially-Created Disqualification from No-Fault Benefits By: Thomas G. Sinas

Executive Director Kimberly Coleman/ext. 105 kimc@grbar.org Executive Assistant/Membership/ Inns Administrator Debbie Kurtz/ext. 101 debbie@grbar.org Communications Specialist/ grab LAW Administrator Mieke Stoub/ext. 109 mieke@grbar.org Administrative Assistant/ Foundation Administrator Elaine Mohre/ext. 100 elaine@grbar.org Lawyer Referral Administrator Nancy King/ext. 107 nancy@grbar.org OFFICERS & TRUSTEES President Thomas R. Behm . . . . . . . . . . . . . . 616.235.5500 President-Elect Patrick F. Geary . . . . . . . . . . . . . . . . 616.458.5358 Vice-President Hon. Christopher P. Yates. . . . . . . 616.632.5029 Secretary Randall Velzen . . . . . . . . . . . . . . . . . .616.233.9160 Treasurer Elizabeth K. Bransdorfer. . . . . . . . 616.632.8000 Immediate Past President Kristin M. Vanden Berg . . . . . . . . . 616.456.2468 Trustees Angel C. Dotson . . . . . . . . . . . . . . 616.831.1747 Elizabeth Joy Fossel . . . . . . . . . .616.336.6707 Joseph J. Gavin . . . . . . . . . . . . . . . 616.831.1722 Bradley K. Glazier . . . . . . . . . . . . .616.458.6814 Benjamin H. Hammond . . . . . . 616.458.3600 Sarah Riley Howard . . . . . . . . . . .616.752.2541 Courtney L. Quist . . . . . . . . . . . . 616.454.9008 Brian K. Lawson. . . . . . . . . . . . . . 616.235.3500 Marcus Jones . . . . . . . . . . . . . . . . .616.787.5799

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13 3Rs Program

18 Music, Mediation & Arbitration By: Stephen A. Hilger

14 Don’t Worry, Be Happy!

By Christine Gillman

19 Summer Clerkship Reception

15 YLS Update By: Laura Joyce

OCTOBER 2014 1 2 3 4 5 6 7 8 9 10 11

SEPTEMBER 2014 1 2 3 4 5 6 8 15 22 29

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NOVEMBER 2014 1 2 9 16 23 30

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American Inns of Court University Club 5:00pm

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16 Parents & Children Section Meeting Kent County Courthouse 12:00pm

It’s Just “Family” Scramble Boulder Creek Golf Club 2:00pm

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American Inns of Court University Club 5:00pm

16 Legal Assistant Section Meeting University Club 12:00pm

22 Family Law Section Meeting University Club 12:00pm

17 Constitution Day Grand Rapids Public Schools

29 Solo/Small Firm Section Meeting University Club 12:00pm

24 Family Law Section Meeting University Club 12:00pm

17 Avoid the Limelight By: James A. Mitchell

12 Upcoming Events

8 Greeting from the Legal Assistants Section By: Tiesha Hogue-Shankin

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16 Member Notes

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4 11 18 25

5 12 19 26

6 13 20 27

7 14 21 28

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25 Criminal Law Update University Club 12:00pm 30 ADR Section Metting University Club 12:00pm

ed for

eed Volunteers n

Day, n o i t u t i t s n o C ber 17 Septem

r.org or www.grba 0 Sign up at ) 454-555 16 man at (6 le o C im K call

ON THE COVER: (Left to Right) Peter Kulas, Courtney Quist, Richard Hillary and Thomas Behm, GRBA President

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PRESIDENT’S PERSPECTIVE

Don’t Wait BY: THOMAS R. BEHM

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his fall my wife, Mary, and I will become empty nesters.

After spending 23 wonderful years raising our three children, we find ourselves entering a new chapter of our life. I approach this new chapter of life with excitement, as well as reflection upon the great times we spent with our children in the past. It is this “time of reflection” that brings me to the topic of this article.

One morning many years ago, after spending a late night at the office, one of my partners gave me a short article that talked about the story of Thomas Carlyle who lived in the 1800s and was a well-known writer. The story of Thomas Carlyle had a significant impact on me and I want to share it with you now.

On October 17, 1826, Thomas, age 30, married his secretary, Jane Welsh. She was an intelligent woman who continued to work for Thomas after they were married.

They had their share of quarrels, but still loved each other dearly.

Being a hard worker, Thomas became absorbed in his work. After several years of marriage, Jane became ill with cancer. It was one of the slow growing kind. Finally, after several years, Jane became

confined to her bed. Although Thomas loved her dearly, he very seldom found time to stay with her for extended periods. He was busy with his work.

Thomas turned the page in the diary and read something that broke his heart. “I have listened all day to hear his steps in the hall, but now it is late and I guess he won’t come by today.” Thomas read a little more in the diary. He then threw it down and ran out of the house. Some of his friends found him at Jane’s grave, his face buried in mud. His eyes were red from weeping. Tears rolled down his cheeks. He kept repeating over and over again, “if I had only known, if I had only known.” But it was too late for Thomas. Jane was dead.

When Jane passed away they carried her body to the cemetery for the service. That day was a miserable day. It was raining hard and the mud was deep. Following the funeral, Thomas went back to his home. He was taking Jane’s death very hard. He went upstairs to Jane’s room and sat down in the chair next to her bed. He sat thinking about how little time he spent with her and wished he had a chance to do it differently. Noticing her diary on the table beside her bed, he picked it up and began to read.

After Jane’s death, Thomas made little attempt to write again.

Historians have said that he lived another 15 years, but was weary, bored and a recluse. I tell you this story with the hope that you will not make the same mistake. While our loved ones must have the financial support we provide, it is our love that they really need and want. Make sure you take time each day to show affection to the special people in your life. It makes a huge difference. In the end, you will be measured not by your success as a professional, but by the way you loved your family and friends. Make sure to love them generously.

He was shocked by what he read. On the first page Jane wrote a single line: “Yesterday he spent an hour with me and it was like heaven; I love him so.” Suddenly, something dawned on him that he had not realized before. He had been too busy to notice that he meant so much to her. He thought of all the times he had gone about his work without thinking about or noticing her.

… you will be measured not by your success as a professional, but by the way you loved your family and friends. grbar.org

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CRIMINAL NOTES

FOURTH AMENDMENT REVIEW: UNITED STATES

Supreme Court Opinions from the October 2013 Term BY: TIMOTHY K. McMORROW • KENT COUNTY PROSECUTORS OFFICE

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he United States Supreme Court issued four opinions on Fourth Amendment issues this past term. A brief review of them: Riley v California, 134 S Ct 2473, is the most widely reported of these decisions. The Court held that a search of the digital contents of a cell phone may not be routinely searched by the police without a warrant as incident to an arrest. The decision was hardly a surprise – the Court had signaled its hand during oral argument, and the vote in the Supreme Court was 9-0 – but it was the only one of the Fourth Amendment cases where law enforcement did not prevail.

Prado Navarette v California, 134 S Ct 1683, involved a traffic stop based on an anonymous 911 call. The caller reported that a vehicle had run the caller off the road, and gave a specific description of the vehicle, including a license plate. A police officer located the vehicle, and followed it. The driver of that vehicle committed no traffic violation, but the arresting officer stopped the vehicle anyway, based solely on the 911 call, to investigate a possible case of drunk driving. Mr. Prado Navarette was not driving while intoxicated, but he unfortunately had 30 pounds of marijuana in his vehicle, the odor of which was immediately detectable. He was of course arrested.

The validity of the arrest depended on the validity of the stop. Granting that an anonymous tip standing alone would not justify a stop of a vehicle, the Court found that the information from the 911 caller had sufficient indicia of reliability to justify the stop. And just as a side-note: the lead dissent was written by Justice Scalia, who has emerged as the best friend of the defense on Fourth Amendment issues (see my April 2013 criminal notes column for more examples of Justice Scalia’s approach to Fourth Amendment issues).

Fernandez v California, 134 S Ct 1126, involved a domestic abuse call. After the alleged abuser was removed form their shared apartment, the abused person

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consented to a search of the apartment, which revealed evidence of an armed robbery. The Court had ruled in Georgia v Randolph, 547 US 103; 126 S Ct 1515 (2006), that consent to enter from one occupant of a dwelling is insufficient to justify a warrantless search when another occupant is present and objects to the search. The Court in Fernandez retreated from that rule somewhat, and held that when one occupant is legitimately arrested and taken from the scene, not simply to remove his ability to object to the search, the remaining occupant can indeed consent to a search.

Plumhoff v Rickard, 134 S Ct 2012, was a civil case, brought by the estate of a person killed in a high speed chase. The Court ruled that officers did not use excessive force when they discharged guns at a car fleeing in excess of 100 mph. The Court held that the vehicle posed a risk of deadly consequences to the public, and that the use of deadly force to stop it was not a Fourth Amendment violation.

The most surprising of these decisions to me was Prado Navarette v California. The Court has traditionally been skeptical of stops based on anonymous information.

This decision has been heavily criticized by some defense lawyers and commentators, though it should be noted that this 911 call was much more detailed than an ordinary call, and it is difficult to tell how broadly the principle established will be applied. I suspect we will soon see a case where a police officer makes a stop on much less detailed anonymous information, which will test the parameters of this decision.

Riley v California received the most publicity, causing some casual observer to conclude that law enforcement took it on the chin this past term. But that decision is one that can be (and is being) complied with by law enforcement without too much difficulty. On balance, it was a good term for law enforcement.

A Judicially-Created Disqualification from No-Fault Benefits BY: THOMAS G. SINAS SINAS DRAMIS LAW FIRM GRAND RAPIDS OFFICE

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he next time you see a no-fault lawyer at the courthouse, do not be surprised to see Michigan’s no-fault statute in the lawyer’s briefcase. The rules of MCL 500.3101 et seq. are intricate enough that a good lawyer never leaves the office without the statute. While mastering the statute is challenging enough, the task becomes more difficult when our courts create new rules that contradict the statutory language.

Yet such is the case in the decision of TBCI, P.C. v. State Farm Mut. Auto. Ins Co., 289 Mich. App. 39 (2010). Here, an insured, Eric Afful, filed one lawsuit against State Farm over unpaid attendant care benefits. Later, Afful’s medical provider, TBCI, filed a separate suit against State Farm regarding an unpaid bill. Afful’s case went to trial first, and a jury denied his claim on the basis that it was fraudulent. State Farm then moved for summary disposition against TBCI, arguing that TBCI’s claim was barred by res judicata. State Farm relied on the jury verdict in Afful’s case and language in the insurance policy that took away all coverage if the insured made false

statements. The trial court granted State Farm’s motion, and the Court of Appeals affirmed on the basis of res judicata.

As a former financial crime prosecutor, this author agrees that fraud is unacceptable. A fraudulent PIP claim should result in denial of the benefits claimed.

Moreover, our no-fault statute already has a specific mechanism for penalizing fraud by insureds.

MCL 500.3148(2) allows an insurer to collect penalty attorney fees when forced to defend a fraudulent claim. The inclusion of this provision shows that our legislature contemplated the issue of fraud by insureds but chose not to include it as a basis for disqualification.

This author respectfully submits that this holding contradicts the plain language of the no-fault statute and well-established case law. First, MCL 500.3113 sets forth three specific circumstances under which an injured person is disqualified from PIP benefits.

Fraud on the part of the insured is not one of the enumerated disqualifications. In addition, our supreme court previously held that the no-fault statute “trumps” any inconsistent insurance contract provision. Specifically, in Cruz v.

State Farm Mut. Auto Ins. Co., 466 Mich. 588 (2001), the Michigan Supreme Court invalidated an insurance contract provision that required an insured to undergo an examination under oath before receiving PIP benefits. The provision was invalid because it imposed on the insured greater duties than those required under the statute. There is no meaningful distinction between the provision invalidated in Cruz and the provision upheld in TBCI. grbar.org

TBCI has significant repercussions for patients, practitioners, and medical providers. For patients, it means that one misrepresentation could mean lifetime disqualification from benefits. This raises obvious malpractice concerns for attorneys handling PIP claims. TBCI also unfairly penalizes medical providers who are not complicit in fraud. If a provider treats an auto patient who made any false or misleading statement, that provider will be barred from seeking reimbursement from a no-fault insurer.

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Greetings from the Legal Assistants Section BY: TIESHA HOGUESHANKIN • PARALEGAL AT GRAND VALLEY STATE UNIVERSITY

The Legal Assistants Section meets regularly four times a year and we are always looking for ways to recruit and retain members.

The purpose of our section is to encourage a high order of ethical and professional attainment, including but not limited to, continuing education for Legal Assistants, promoting the profession, facilitating the exchange of ideas among members and supporting pro bono work within the legal community. This article will highlight a couple of our vibrant members by acknowledging strides they are accomplishing in their careers.

Paula Lewison has a highly successful career as a Commercial Paralegal at McShane & Bowie, P.L.C. On April 11, 2014, Paula was inducted as an honorary member of Grand Valley State University’s chapter of Lambda Epsilon Chi (LEX), which is a national honor society founded by the American Association for Paralegal Education.

Paula has served on Grand Valley’s Legal Studies Advisory Board from 1993 (chair, 2006-2010) and was instrumental in helping the Program obtain ABA Approval in 2010. She actively supports the Grand Valley Legal Studies program through mentoring students and graduates and supervising interns. She is a role model for students as a highly-accomplished professional who is also actively engaged in community service.

Caryn Stetson was recently promoted to Senior Paralegal at Steelcase Inc. Caryn began her legal career in Virginia in 2002 after four years of service in the United States Navy. Prior to joining Steelcase in 2011, she was employed at Mika Meyers Beckett & Jones, PLC and at various firms in the Norfolk area. Caryn holds a Bachelor’s Degree in Management along with a paralegal certificate.

Her primary area of practice is litigation.

Kyle Tank is the recipient of the $1000.00 Legal Assistants Section scholarship for the 2014-2015 academic year. Kyle is a Senior majoring in Legal Studies at Grand Valley State University. During his undergraduate career, he has traveled to Japan to study comparative social organization and control. He has also been active in PALSS, a student mentor program at GVSU, where he was paired with children throughout the Grand Rapids community. His plan is to use his skills, knowledge and experiences to work as a full-time Legal Assistant post-graduation.

I wish there was room to showcase every dynamic member of our section. Each member brings value to the group by contributing their diverse insight within the range of legal disciplines embodied in our section.

Our next meeting is on Tuesday, September 16, 2014 during the lunch hour. If you would like to visit the next meeting please contact the chair, Tiesha Hogue-Shankin at hogueti@gvsu.edu or call 616-331-3956.

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Real Estate Practice Note: New Inspection

Rights allow Purchasers at Foreclosure Sales to Shorten the Redemption Period BY: DAVID C. HILL • KREIS, ENDERLE, HUDGINS & BORSOS, P.C.

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he continuing trend in the regulation of residential foreclosures recently took a step back in favor of lenders and other parties who purchase foreclosed properties at Sheriff’s Sales. On June 19, 2014, new amendments to Michigan’s Foreclosure by Advertisement Statute (MCL 600.3201 et seq.) took effect adding specific inspection rights for those who purchase a property at Sheriff’s Sale. The underpinnings of these changes rest in continued efforts to reduce the length of Michigan’s statutory redemption period from six (6) months to 120 days, or less. These efforts have been ongoing for some time to mitigate the costs to mortgage holders and, in some respect, to assist communities where vast amounts of foreclosed properties sit stagnant.

The redemption period question is a political balancing act of competing interests - a long redemption period can contribute to crime and blight; whereas, a shorter redemption period may harm homeowners and their ability to redeem after a sale and reduce the time periods to challenge improper foreclosures.

The new inspections rights found at MCL 600.3237-600.3238 represent a compromise between these two interests.

Purchasers at foreclosure sales now have an enforceable right to conduct an interior inspection of the foreclosed property (MCL

600.3238). The inspection can take place at any time during the redemption period following 72 hour notice to the mortgagor as well as any other person in possession of the property. The contents of the notice, which must include details such as the date of sale, description of inspection rights, and the identity of the foreclosure sale purchaser, are set forth in MCL 600.3237.

From a purchaser’s perspective, the inspection rights serve two primary purposes - to establish liability of the mortgagor for damage to the property and to potentially shorten the redemption period.

The inspection rights draw a distinction between interior and exterior inspections. The purchaser has a right to conduct as many exterior inspections as it wishes during the redemption period.

For interior inspections, after the initial inspection, the purchaser may request not more than one inspection per month or 3 inspections in 6 months. The purchaser may conduct more frequent inspections if it has reasonable cause that damage has occurred or will imminently occur to the property. The statute identifies specific instances that constitute damage including failure to comply with ordinances related to maintenance or blight, exterior conditions which create a security risk, stripped plumbing/metals, and missing structural elements.

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The inspection notice creates a rebuttable presumption that the mortgagor is responsible for damage to the premises if the mortgagor frustrates the inspection process – either by refusing to consent to the inspection request or by vacating the property without notice to the purchaser (see MCL 600.3278). Be aware, however, if the mortgagor does consent to the inspection, provides notice of vacating and surrenders control, then the opposite rebuttable presumption applies, that the mortgagor is not liable for damages.

The purchaser may also initiate summary proceedings for possession of the property if the mortgagor unreasonably refuses inspection of the property or if damage is imminent or has occurred. A 7 day notice … continues on page 12

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May Admissions Ceremony

thank you!

Event Sponsor:

The GRBA's Young Lawyers Section and the Justice Foundation of West Michigan extend heartfelt thanks to the following sponsors of the 2014 GRBA Golf Outing.

Adamy Valuation Advisors

Grand Rapids Law Group

Price Heneveld LLP

Almassian Jewelers

Gruel Mills Nims & Pylman

Quist Hansen

Ameriprise Financial Services, Inc.

Harold Zeigler Chrysler Dodge Jeep

Rhoades McKee

Barnes & Thornburg LLP Bienenstock Nationwide Court Reporting & Video

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Kulas Law Office

Roosevelt Thomas

Mika Meyers Beckett & Jones

Sherlund, Faber & Van Meter PLLC

Drew Cooper & Anding

Miller Johnson

Sinas Dramis

Foster Swift Collins and Smith

Newton Plont

Varnum

Gardner Linn Burkhart & Flory, LLP

Plunket Cooney

Velo Law Office

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2014 Golf Outing

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UPCOMING EVENTS Constitution Day September 17, 2014

at various Grand Rapids Public Schools To volunteer, call the Bar offices a (616) 454-5550

Criminal Law Update September 25, 2014

12:00-1:30 pm at the University Club

3Rs Program

Sessions run from November to May at Ottawa Hills High School Be a part of the faculty!

See page 13 for details.

Hors D’oeurves, Entertainment, Cash Bar, and Silent Auction Parking will be validated at the event.

REAL ESTATE PRACTICE NOTE …continued from page 9

must be given prior to initiating the summary proceedings. In seeking possession under these circumstances, the judge will consider totality of the circumstances surrounding the damage or condition that threatens imminent damage. If such conditions exist and the possession judgment enters, the redemption period ceases

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as to all parties against whom the possession judgment enters against.

These inspection rights create a new tool to assist clients who have a property that is occupied, but in disrepair. The process to shorten the redemption period remains somewhat cumbersome and fact-intensive; however, the definition of “damage”

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in the statute will alleviate some ambiguity as to what may qualify as sufficient damage to shorten the redemption period. Practitioners should follow the statutory definition of damage as closely as possible to expedite obtaining possession of the property prior to the end of the 6 month redemption period.

→ WANTED ←

Lawyers and Law Students Who Want to Change the World (or at least their community)

3Rs Rights Responsibilities Realities INTERESTED?

Visit www.grbar.org and click the 3Rs Banner

The 3Rs: Rights, Responsibilities, Realities is a partnership program between the Grand Rapids Bar Association and the Grand Rapids Public Schools. The 3Rs Program goals are to improve understanding of and respect for the rule of law and the U.S. Constitution, provide mentorship to Grand Rapids high school students, provide practical career counseling to focus students on their potential beyond high school, and improve the “pipeline” of diverse students flowing into legal careers in the region. 3Rs program volunteers from the Grand Rapids legal community visit 9th grade social studies classes throughout the school year. The program, funded by the Grand Rapids Managing Partners’ Diversity Collaborative, is based upon the award-winning model put forward by the Cleveland Bar Association.

WHAT WE DO. The 2014-2015 academic year will be the sophomore program for The 3Rs in Grand Rapids, and will focus on the Ottawa Hills High School. Roughly once a month, from November to May, in coordination with school programming, a team of six lawyers will enter each 9th Grade social studies class for one 55-minute class period. Each class will be divided into subgroups of 4-5 students, each led by a lawyer/ law student team member who will apply a curriculum based upon the one developed by the Cleveland Bar Association. Students’ work in The 3Rs Program will count to their final grade, and the participating attorneys/law students will have a voice in that grade. Our goal is to expand the program into every 9th Grade Social Studies class in the Grand Rapids Public School System.

YOUR COMMITMENT. We estimate that the commitment of an average team member would be approximately two to three hours per month for a period of 8 months. That commitment will begin with a faculty orientation in October. In November, you will enter the school for a 55-minute class roughly once a month, and your commitment will consist of preparation, travel to Ottawa Hills High School, and the class period. Also, you will shoulder an ongoing commitment to mentor any students with whom you form a connection, which will continue through their high school education and beyond. grbar.org

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Don’ t Worry, Be Happy!

BY: CHRISTINE GILMAN • EXECUTIVE DIRECTOR DISPUTE RESOLUTION CENTER OF WEST MICHIGAN & VICTORIA MULLEN • PROGRAM MANAGER DISPUTE RESOLUTION CENTER OF WEST MICHIGAN

“ bring peaceful resolution to confl icts by providing expert and affordable mediation and training services.”

The Dispute Resolution Center of West Michigan (DRCWM) is West Michigan’s best-kept secret, and that is not a good thing: Individuals, neighborhoods, companies, law firms and judges and organizations in the community need to know about DRCWM’s low- and no-cost mediation services. Mediation really works to settle disputes, and it saves parties and courts money and time.

To get the word out about its very existence, DRCWM is kicking off an awareness event – Don’t Worry, Be Happy! on Thursday, October 16, from 7-9:30 p.m. at the City Flats Hotel Ballroom, 83 Monroe Center NW in Grand Rapids.

It is also the organization’s inaugural celebration of International Conflict Resolution Day.

DRCWM is located at 678 Front Ave. NW, Suite 250, in the Riverview Center building in Grand Rapids on the west side of the Sixth Street Bridge.

The nonprofit’s mission is to “bring peaceful resolution to conflicts by providing expert and affordable mediation and training services.” DRCWM provides low-cost and free mediation services in a sevencounty area.

Man About Town and community activist, Tommy Allen, will emcee, and guests will enjoy hors d’oeuvres, a cash bar and great music by the Zion Lion reggae band. The event will also honor local peacemakers who have made a difference in our community. Tickets are $30 each and available at www.drcwm.org.

Ticket buyers will be directed to the Eventbrite website.

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The organization boasts a remarkable success rate: In the last 12 months, trained volunteers mediated 324 cases; of those, approximately 70% settled. The mediation process has an impressive agreement compliance rate -- voluntary compliance with mediated agreements is 90% compared

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to a 56% compliance rate for non-mediated judgments for cases that go to court. The stats for satisfaction are also high: 90% of mediation participants are satisfied with the process, even if their case wasn’t resolved.

Conflict is inescapable.

Facilitative mediation gives parties the opportunity to work together to craft their own solution to their problem. DRCWM mediators are professionals who have completed SCAO-approved training as well as a required mediator internship. Many DRCWM mediators have hundreds of hours of mediation experience and provide their services to the DRCWM on a volunteer basis. Several of West Michigan’s top private mediators donate time mediating on behalf of the DRCWM. How can you help support this great process? Join us for Don’t Worry, Be Happy! on Thursday, October 16. You can also become a Volunteer Mediator or donate to the DRCWM at drcwm.org.

Have a conflict? Want to know more? Please contact us at call the DRCWM at (616)774-0121 or email info@drcwm.org to find out more.

Navigating the

“FIRSTS”

as a New Attorney BY: LAURA M. JOYCE • DOMORSKY AND WRIGHT PLLC

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t should come as no surprise that beginning a career as a lawyer isn’t easy. I mean, truly, why would it be? Law school was hard. The bar exam was even harder. But for some reason, the idea persists that once all the studying and stress are behind us, and our P-number is in our hands, the clouds will part, the road will clear, and only success and good fortune will lie ahead.

However, as everyone reading this is well aware, that is not the case.

Beginning your career as a lawyer, whether you are with an established firm or end up hanging your own shingle, is no easy task. Being a young lawyer is a never-ending parade of “firsts”: your first client; your first court appearance; your first motion; your first loss; and on and on it goes, while you try to glean wisdom from each new experience that gets thrown in your direction. I wait for the day when I finally have no “first” to suffer through. I have been told that I will be waiting a very long time.

challenging road in Grand Rapids. We’ve all heard it said before—Grand Rapids is one of the most congenial legal communities in the state.

And it’s true! No matter how unsure we may be about a matter, we all know that the advice of an experienced attorney is only phone call away.

No matter how complicated our case may get, we know that opposing counsel will be fair and up front with us. It really is a rare gift; we may not get to be sure about much in our early days, but we can be sure that we can count on our community to help us.

With all of the difficulties that face every new lawyer, it is comforting to know that each attorney in this city has walked this road before us, and has helped create a community where professionalism and respect are the status quo. It makes those initial steps a little easier, those “firsts” a little more bearable, and ultimately, the journey much more pleasant.

Luckily for my fellow young lawyers and me, we have the opportunity to start this

WELCOME New Members

Phillip Bossi

Philip Glovick

Margaret A. O’Rourke

Crystal Bui

Caleb Gonzalez

Christopher Ricotta

Pavol Fabian

Todd Gravelyn

Kamau Sandiford

Tiffany Fifer

Ravi Gurumurthy

Chad Shisler

Carly Gersch

Erika Hunting

Amanda Sterkenburg

Jacob Gilsbach

Ross W. Keilen

Michael Zaskiewicz

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MEMBER NOTES • Luis E. Avila, Varnum, was presented with the Wedgewood Christian Services Diversity Award.

• Catherine A. Brainerd has joined the law firm Rhoades McKee. • Mary Ann Cartwright, Rhoades McKee, will serve as Chair of the Employment and Labor Practice Group.

• Laura J. Genovich, Foster Swift Collins & Smith, will serve as Chairperson of the Steering Committee for the Bankruptcy Section of the Federal Bar Association (Western District of Michigan).

• Jeffery D. Koelzer has joined the law firm Varnum.

• Aileen M. Leipprandt, Hilger Hammond, was recently elected to the Board of Directors of the Construction Financial Management Association, Western Michigan Chapter.

• Dean F. Reisner, Varnum, has been appointed to the Board of Directors of The Chamber, the chamber of commerce for Grand Haven, Spring Lake, and Ferrysburg.

• Steven L. Underwood, Price Heneveld, has been appointed to the firm’s threemember Management Committee.

Visit our website for more news from your fellow Bar members • www.grbar.org

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Mitc of M Mich

Does Your Patent A orney Know How to Avoid the “Limelight?”

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JAMES A. MITCHELL • MITCHELL INTELLECTUAL PROPERTY LAW, PLLC

M

any times, your invention involves a method of doing something. The method may involve several steps.

The manner in which your patent attorney “claims” that invention is critical to your success in enforcing your patent.

Your patent “claims” define the scope of your protection, and if the method claims are not drafted correctly, you may have no protection.

The Federal Circuit Court of Appeals, which handles all appeals from Federal District Courts in patent cases, had held that a defendant performing some of the steps set forth in a method patent claim, who induces another party to perform the rest of the steps, can be liable for “inducement to infringe.” However, in Limelight Networks Inc. v. Akamai Technologies, Inc., decided June 2, 2014, the United States Supreme court reversed the Federal Circuit and held that in order for a defendant to be liable for inducement of infringement, someone has to actually perform all of the steps of the method patent claim.

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If a defendant performing some of the steps of a method Mr. over Mitchell patent claim “exercises control or direction” a thirdis admitted t party performing the rest of the methodAppeals steps, then forevery the Federal an step of the method claim is attributable to the defendant, and the defendant is guilty of infringement. However, the Federal Circuit in its decision below, held that a defendant that does not itself undertake all of a patent’s steps can be liable for direct infringement only when there is an agency relationship with the party who performs the rest of the method claim steps or when the party who performs the rest of the steps is contractually obligated to the defendant to perform the rest of the steps.

These related decisions require careful thought in drafting method patent claims. They must be drafted in such a way as to create a reasonable certainty that at least one party will perform every step of the patent method claim. Make sure your patent attorney knows how to avoid the “Limelight” problem.

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Music, Mediation and Arbitration A

s a performing professional musician, there is nothing quite like the confidence of stepping on stage in front of a large audience knowing you are prepared.

There is also nothing quite like the sinking pit in your stomach when you are not.

Many aspects of litigation, arbitration and mediation are no different. Music, mediation, and arbitration; what do they all have in common? After traveling in all three circles, there are actually more similarities than differences.

BY STEPHEN A. HILGER HILGER HAMMOND, PC

Music, mediation, and arbitration; what do they all have in common?

The first of many common elements is the desire to succeed. For a musician, that means having the desire to put on a good performance. In mediation and arbitration, that translates to a desire and willingness to resolve the case. As for mediation, it can be very frustrating to try and resolve the differences of parties when those parties are not willing to participate. As attorneys, we all owe it to our respective clients to encourage them to look at mediation with an open mind.

Too often, parties come into mediation with fist-pounding attitudes which get no one anywhere. It should be the duty and responsibility of each lawyer to counsel their client to move in the direction of resolution wherever possible.

Another similarity is preparedness.

A musician who walks on stage not knowing the music is not likely to put on a good show. Likewise, clients who are unfamiliar with both their case as well as the strengths and weaknesses of their opponent’s case are not likely to be in the best position to calculate the risks of their own position. Similarly, a lawyer who is not familiar enough with his or her own client’s case, or that of the adversaries, is not likely to be in a preparedness position to evaluate the risk. Without significant preparedness, the mediation will be a waste of time and an arbitration could be disastrous.

A third similarity, a cousin of preparedness, is sufficient timely advance preparation. For example, if a musician

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does not put together all of his or her music in time to perform, then it will be hard for the musician as well as all others participating to put on a good show. Likewise, if a lawyer does not prepare a mediation summary in a way that makes sense and is helpful to the mediator, or a preliminary hearing brief in arbitration, then the message will not be clearly communicated and it will become more difficult for their respective clients to achieve a satisfying result. Generally, mediators and arbitrators read everything that is placed in front of them. You can make their job easier by organizing your materials in a logical way and highlighting relevant passages.

Another similarity is human behavior.

In a band, no one likes a prima donna.

In mediation or arbitration, it is always difficult if one or more of the parties are not acting in a professional way. Lawyers sometimes believe they must insert a certain level of bravado in all of their arguments. This is either emotion they feel or have fabricated for purposes of the proceeding. While lawyers may be trying to impress their clients, mediators and arbitrators are not generally persuaded by that bravado. First, they have not felt the emotion that the clients feel, and second, they are required to distance themselves from that emotion. Injecting that emotion into the proceeding may make settlement or resolution more difficult, not less difficult. Generally speaking, it is okay to disagree, not to be disagreeable about it.

Finally, lawyers and clients alike should ask themselves a simple question: does their position make sense? If the answer is no, it is not going to make sense to a mediator or arbitrator.

If you would like your next mediation or arbitration to produce a result which you are satisfied with, consider these points.

There are many other similarities, and a few differences, but by and large, these basic points will make the whole process smoother and more effective.

n o i t p e c e R p i h s k Summer Cler

A special thank you to the participating fi rms of the 2014 Minority Clerkship Program and to thos e who give their continued support.

Barnes & Thornburg Foster Swift Collins & Smith Miller Johnson Rhoades McKee Warner Norcross & Judd Varnum

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Accountants & Consultants

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Our expertise in Litigation Services can help you with: • •

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CONTACT: Leslie N. Prangley III, CPA CVA

11th Floor, Bridgewater Place 333 Bridge Street NW Grand Rapids, MI 49504 Ph: 616-774-9004 Fx: 616-774-9081

www.pmcpa.com