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    Who are the NERD fund donors Mr Snyder?

    Raise the curtain.

    Plaintiff Lawyer Tricks

    By Kevin Rex Heine, Section News
    Posted on Thu Sep 06, 2012 at 11:47:42 PM EST
    Tags: Michigan Supreme Court, 2012 vacancy nomination, Bob Young, Mary Beth Kelly, Wayne County Circuit Court, Colleen O'Brien, Oakland County Circuit Court, trust but verify . . . always, Mike Rizik (all tags)

    Or, How and Why Mike Rizik's Anti-Markey Attack Piece E-mail is Phony

    Republican Delegates recently received a letter from trial attorney Mike Rizik.  Mike Rizik has been a plaintiffs' personal injury lawyer and a 20-year member of the Michigan Trial Lawyers' Association.  The Michigan Trial Lawyers' Association, as you likely know, is Michigan's largest contributor to Democrat judicial candidates and the Democrat Party.

    Mike Rizik has donated money to Supreme Court Justice Patricia Boyle (whom he criticizes Markey for also supporting).  His contribution helped beat Clark Durant, who was running against Boyle at the time.  He also contributed to Democrat Chief Justice Michael Cavanaugh and Court of Appeals Judge William Murphy who had been nominated by the Democrat Party to run against Republican James Brickley.

    Considering all of this, it is hardly surprising that Rizik endorses Colleen O'Brien for the Supreme Court, given her own well documented Democrat affiliations.  After all, he has a strong business interest in the outcome of this race.  And while normally we have no quarrel with a man legitimately pursuing his own interest, the question of who is best suited to serve on our State's highest court is a public, not a private concern.  It is, to use an old fashioned term that still fits, a public trust.  When it comes to the Supreme Court, we simply must place the interests of society above the "special interests" of the trial lawyers.

    Of course, Rizik is not content to merely back O'Brien.  He liberally takes unfair and malicious swipes at a true Rule of Law Judge, the one with an open, verifiable track record, the Honorable Jane Markey.  In doing so, Rizik reaches into the bag of familiar plaintiff trial lawyers' tricks.

    Trick # 1:  Write a "drive by" hit piece that is so littered with falsehoods that a reasonable response is dauntingly long.

    People are busy. They don't have time to read a three or four page email from candidates. So here is an effective trick: send out a short "hit" piece that is so riddled with lies and half truths that it is impossible for the opposition to offer a short, neat response.  The plaintiff lawyer hopes people will read his piece, but ignore the longer, truthful one.

    This trick might just work.  But this race is too important to ignore, and I respectfully request that you take just a moment to read this response and consider it well.

    Trick # 2:  Misleadingly re-frame the issue, not only by adding lies, but by subtracting truth.

    Every candidate's history of political contributions, and by extension, lack of political contributions, is a matter of public record and easily researched through the Michigan Secretary of State's website and other databases, including the Federal Election Commission.  Responsible convention delegates research candidates.  That a few dozen republican delegates, including a Republican County Chair, did some elementary research on Judge O'Brien and found reason to be concerned is hardly Judge Markey's fault, nor was it her doing.  The delegates had been smelling smoke for awhile, and found a fire.  That these same delegates share their concerns over coffee, during phone calls, email, and by way of social media like Facebook, is both predicable and appropriate.

    Rizik dismisses Republican concerns by misrepresenting some facts and omitting others.  He notes that O'Brien has contributed to Democrats, but claims, contrary to public records, that the amount was "meager," and she only "contributed to attend events where fellow judicial colleagues, who happened to be Democrats, were being honored."  This is patently untrue.

    First, she contributed $300 twice to liberal Democrat Congressman Bob Carr, who was then running against Spence Abraham for the U. S. Senate seat currently occupied by Debbie Stabenow.  (Bob Carr, coincidently, in both 1974 and 1976 defeated former Justice Cliff Taylor for Congress.)  Bob Carr is not and never has been an O'Brien "judicial colleague."  She donated to Democrat State House candidate Fran Pontoni.  Fran Pontoni is not and never has been an O'Brien "judicial colleague."  She has donated to several Democrat judges running for election.  Moreover, O'Brien's recent $250 contribution was not to a "judicial colleague," but rather to the Oakland County Democratic Party.  In return for her contribution, O'Brien got to attend the Democrat Phil Hartman Dinner for the pleasure of listening to Congressman Barney Frank as the keynote speaker!

    But Rizik's greatest trial lawyer trick is the oldest: omitting crucial facts.  He somehow tries, though unsuccessfully in my view, to obscure the meaning of O'Brien's Democratic contributions by ignoring her lack of Republican contributions.  Look for them.  They are not there.  It is passing strange how no actual contributions from O'Brien to the Republican Party or any Republican candidate (before she began running for Supreme Court as a Republican, that is,) appear anywhere on public election contribution filings.  Rizik is also mum on those who have contributed to O'Brien's races for judge, like the Teamsters 1038 PAC - Detroit, that contributed $500 to her.  The Teamsters Union?  How often do the Detroit Teamsters contribute to Republicans?

    How does trial lawyer Rizik defuse these uncomfortable truths?  How does he balance his candidate against Judge Jane Markey, who has contributed in excess of ten thousand dollars to the Republican Party and Republican candidates, a woman who has been a fixture in the Republican Party for well over 23 years?  He smugly repeats the old cliché about "glass houses" and reveals that 22 years ago a young lawyer named Jane Markey contributed $110 to Justice Patricia Boyle, a non-partisan justice who was originally appointed to the bench by Republican Governor Bill Milliken.  Oh, but wait.  Look at Rizik's woeful history of Democrat judicial campaign contributions.  (At this point refer back to the first two paragraphs of this article.)  What was that about glass houses, Mike?

    Trick #3:  Take advantage of the non-lawyer's uncertainty about how case law develops.

    What do lawyers do?  They read law.  They write law.  They talk law.  The best ones endeavor to explain the law in a disinterested, reliable way.  The worst ones obfuscate, disguise, and complicate the law for their own selfish purpose.  Sadly, this has always been so.

    Rizik himself says nothing of the law, but rather cites the Wizard of Laws article "Rule of Law Should Be More Than Just A Slogan" and the analysis of Progressive Insurance Company v Smith as "proof" that Jane Markey is an empathy judge.  So let's briefly delve into the case law cited by the Wizard.

    First, there is Bob Young's language in his Progressive Insurance concurrence.  Chief Young has a reputation for being predisposed to angry language, so in that regard, it is nothing new.  But it is extraordinarily underhanded, professionally unethical, and deceitful to include Mr. Young's indecorous sentence without recording Justice Markman's equally extraordinary rebuke:

    Although I reach the same result as the Chief Justice, and, even had I not, I would have articulated my position much differently than do the dissents in this Court and in the Court of Appeals, I nonetheless respectfully believe that the Chief Justice is overly severe in his criticism of these dissents.

    ... In fairly giving meaning to the law, the obligation of the "textualist" or "interpretivist" is not to read the law "literally" or "narrowly," or to engage in "strict construction," but it is simply to read the law "reasonably."  In light of this premise, I do not believe that either of the dissents has reached an indefensible conclusion.  A judge who views the difference between "liability" and "responsibility" as being of no reasonable consequence in the insurance policy at issue is not "ignoring words," engaging in a "shocking departure from the rule of law," or otherwise acting in disregard of his or her "oath of office." ...

    To begin with, nothing signals that the Legislature intended that the warning language it used in the statute must be used verbatim in insurance policies.  The statute does not require it nor does it employ block quoting or quotation marks to show that its wording is the only way to communicate its message.

    ... Black's Law Dictionary defines "liable" as "responsible or answerable in law; legally obligated."  "Responsibility" is defined as "liability."  The insertion of the word "responsible" in place of "liable" did not materially change the meaning of the warning. ...

    Chief Justice YOUNG asserts in his concurring statement that Judge MARKEY's position is a "shocking departure from the rule of law."  He is perhaps too readily shocked.  Her statement and mine are not departures at all.  Our reading is faithful to the statutory language and effects exactly what the Legislature intended when it enacted this law: an exempted driver should not receive insurance benefits. ...

    The named-driver exclusion in this case should be found valid and enforceable.  Its deviation in wording from MCL 500.3009(2) is not material.  Smith was not confused by it.  It would seem an unreasonably harsh and unjust result to allow Smith to profit from his wrongful actions.

    As anyone familiar with concealed-carry permits can attest to, if the Legislature wanted the language to be used verbatim, then they would have so indicated in the language of the statute, by placed the intended text within quote marks, as they did with MCL 28.425j(1)(c).  And since when the hell does the court issue an opinion on a case it has no intention of hearing?  In the course of assisting Judge Markey with her campaign, I've spoken with several COA judges and attorneys who routinely practice before the high court.  Every one of them has told me that they view Chief Young's "customary directness" in a case that was denied leave to appeal was so beyond out-of-bounds that they viewed it as a deliberate political play to feed the campaign of his hand-picked vacancy nominee.

    Additionally, there is the "empathy" charge arising out of the Wilkie case.  Here is where Mike Rizik truly takes advantage of the non-lawyer's understanding of case law and uses it to flat out lie about Markey's record by saying, ah ha, in the Wilkie case, the Supreme Court "reversed" Markey.  And while it is technically true, it deliberately misleads the reader.

    The "reasonable expectations" doctrine, at the time Markey decided Wilkie, was an established Supreme Court doctrine going back a generation or more.  No fewer than four Supreme Court cases established the "reasonable expectations" doctrine as Michigan law.  As a true rule of law judge, Markey had no choice but to apply the law to the facts whether she agreed with the law or not.  Court of Appeals judges have no power to overrule the Supreme Court; only the Supreme Court can overrule the Supreme Court.

    And that is what the Supreme Court chose to do. Markey faithfully applied existing Supreme Court precedent, as Rule of Law judges do, and the Supreme Court, exercising its own legitimate power, used that case to overturn decade's old Supreme Court precedence.  Technically, that's an "overturn" on Markey's record, but only because the high court wanted to take advantage of an opportunity to change the governing precedent.

    Trick # 4:  Criticize things you don't know about.

    Isn't it funny that the people insisting on discussing the alleged "Jewish issue" are the ones unacquainted with the facts?

    The episode was an accident.  It was embarrassing.  But it was unintentional, a fact that everyone (except those looking for political advantage) recognizes.  Judge Markey has apologized publically and she has apologized privately to everyone in the room.

    Rizik, of course, was not in the room.  He has never even suggested that he has ever spoken to anyone in the room.  So what did people in the room think?  Here is a quote lifted directly from the Detroit News:

    Markey's explanation is plausible. Her appeals court colleague, Judge Elizabeth Gleicher, who is Jewish and a Democrat, was in the room that day and recalls the comment.  "People can make mistakes and say things they didn't mean to say that don't necessarily reflect what they are," Gleicher said.

    "I like Jane very much and respect her.  This is not her.  She is not anti-Semitic, even remotely.

    "If we catalog everything everyone says we can't have civilized discourse ... She's a good person.  That's really far from who she is."


    Judge Markey's opponent seems like a decent person.  I don't know her; I think we've been face-to-face maybe four times this entire campaign.  And since Circuit Court judges rarely issue written opinions, (and when they do, they are not released to the internet, but rather they are put in a court file,) I have no way to access her judicial qualifications.  But I found Mike Rizik's letter deeply offensive and, frankly, inexcusable.  In publishing it, he did a grave disservice to Judge Markey's opponent, his own credibility, and the legal profession.

    < Chief Justice Young and the Ballot Proposals | Don't Get Your Panties in a Bunch -- It's Not Personal >

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    Interesting Piece (none / 0) (#1)
    by The Wizard of Laws on Fri Sep 07, 2012 at 01:09:33 PM EST
    Kevin -- You authored this, I'm sure, so why is there a virtually identical email floating around, paid for by Markey's campaign, purporting to be from an attorney named Richard Vander Ark?  There is no acknowledgment in the email of your contribution or authorship.  

    Another possibility is that you have borrowed generously from the email to write this piece, again without attribution.  I choose not to believe this.

    A third possibility is that the piece, whoever wrote it, is the subject of an agreement to use it, in slightly varying form, in different places such as this blog, Vander Ark's email, and perhaps others.  Is that it?

    I have responded to Vander Ark's email here, and the same response will suffice for your post.  It is somewhat gratifying to see that you have removed the language denigrating my blog, although it doesn't thrill me that you call me "underhanded, professionally unethical, and deceitful."  For that, you should apologize.  It is (or should be) beneath you, and you can make your point without it (and, for the record, it is untrue).  

    I always enjoy reading your posts and, in general, they are thorough, well thought out, and fair.  You dropped the ball this time, at least as it pertains to me.

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