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MI Supreme Court 'Trounces' MI Citizen Rights - MI Lawyers Weekly  Article of the week from Michigan Lawyers Weekly: January 29, 2007Do opinions and decisions of MSC 'majority' show a political agenda that denies citizens' constitutional right to trial by jury? By Robert F. GarveyThe editors of Business Week magazine chose the following headline for its Jan. 8, 2007 cover: "How Business Trounced the Trial Lawyers." This apparent declaration of victory, while no doubt celebrated by the business community, should raise some questions in the legal community.In case you have not thought about it lately, lawyers are different from your average business person. To begin with we are a profession. We begin our "business" life by taking an oath that requires adherence to a state and federal constitution. The Constitution is a pesky document as it enshrines rights that are viewed as cumbersome by some. Merchants, bankers, stockbrokers and corporate CEOs do not take an oath and are not charged with the responsibility of understanding the Constitution and protecting constitutional rights. Those of us who are fortunate enough to have been appointed or elected judges take on additional responsibilities when they take their judicial oath of office. What should strike lawyers who read the cover of the Business Week magazine is that business cannot "trounce" a lawyer unless of course they are referring to a physical beating. The every day practice of a lawyer is governed by legislators and judges. The legislators make the laws. The judges interpret the laws while guarding the constitutional rights of the citizens. Therefore, if business has trounced the lawyers, it has been the legislators and the judges who have done the trouncing at the behest of business. This is the substance of the Business Week article.

Michigan's war

Certainly in our system of separation of powers, we expect the Legislature to respond to political pressures. However, the promotion of a political agenda that deprives citizens of a constitutional right is the antithesis of the judicial oath of office. Michigan has followed the national trend. The tort system in Michigan has been thoroughly "trounced." Business has won. Michigan is a particularly hostile place to be injured, maimed or killed by a negligent defendant. In our state, war against the "trial lawyers" was declared by John Engler early in his campaign for governor. In a speech to the Chamber of Commerce on Mackinaw Island, he pledged to "declare war on the vulture trial lawyers" if he was elected. Again, like big business, a governor can "declare war," but he needs the Legislature and the courts to carry out his threat. Although former Gov. Engler's declaration of war was against trial lawyers, let me state the obvious: You cannot mortally wound trial lawyers without mortally wounding ordinary citizens' constitutionally protected right to trial by jury. As such, in light of former Gov. Engler's direct role in elevating the current Supreme Court majority to the Michigan Court of Appeals, the Supreme Court, or both, the question becomes whether we, as trial lawyers representing both plaintiffs and defendants, have the right to ask whether the opinions and decisions of Chief Justice Clifford W. Taylor and Justices Maura D. Corrigan, Robert P. Young Jr., and Stephen J. Markman reflect an agenda consistent with our former governor's declaration of war? I believe it is not only appropriate to make this inquiry, but it is our responsibility to the public to do so.

What's the answer?

Because of the controversy surrounding the Supreme Court majority, I decided to poll a segment of the bar regarding the issue of bias in the court. I thought a survey of some of the most respected members of our bar, familiar with the issues raised, would be an appropriate and meaningful effort. Fortunately, in Michigan we have two highly respected specialty groups of trial lawyers. Both of these organizations are honorary. Membership in each is by invitation. However, most important is the fact that both, by charter, are comprised of 50 percent plaintiffs' personal injury attorneys and 50 percent defense lawyers who represent either insurance companies or large self-insured corporations. The first group I chose for the survey was the Michigan Chapter of the American Board of Trial Advocates (ABOTA), which has 6,000 members nationally and 89 in Michigan. Their stated mission is the preservation of the right to trial by jury as enshrined by the Seventh Amendment of the United States Constitution. Extensive civil jury trial experience is a requirement of membership. The second group I chose was the State Bar of Michigan's Negligence Council. Members for the past six years were selected. Again, these highly respected lawyers are invited by their peers to lead the State Bar's Negligence Section in a collegial manner. Because most lawyers would agree that the members of both groups are the cream of the crop in their respective specialty areas, I could not think of any group of lawyers that would be better informed regarding the issues raised in this inquiry.

Experts weigh in

Once I decided to conduct a survey, I had to be sure that the survey results were free from influence. Therefore, the survey was conducted through a certified public accounting (CPA) firm that was given a list of ABOTA and Negligence Council members divided into a plaintiff's group and a defendant's group. Guaranteeing anonymity to the prospective respondents, the CPA firm mailed the surveys in envelopes marked "personal and confidential," received the responses, and tabulated the results. Of the 126 attorneys to whom questionnaires were sent, 87 responded — 50.6 percent were defense attorneys and 49.4 percent came from plaintiffs' lawyers. Based on a definition of the Supreme Court majority as consisting of Chief Justice Taylor and Justices Corrigan, Young, and Markman, the CPA firm reported the following.

Results

Question 1: Do you generally agree that the decisions and opinions of the Michigan Supreme Court majority are the result of an agenda that is better left to the legislative branch? Yes 83.7 percent No 16.3 percent Question 2: Do you generally agree that the decisions and opinions of the Michigan Supreme Court majority suggest a pattern of bias that favors insurance companies and large corporate interests over those of ordinary citizens in civil litigation matters? Yes 79.3 percent No 20.7 percent Question 3: Do you generally agree that the decisions and opinions of the Michigan Supreme Court majority have resulted in a pattern of denial of the right to trial by jury in the State of Michigan? Yes 80.5 percent No 19.5 percent Question 4: Would you generally support the concept of an analysis of the decisions of the Michigan Supreme Court majority as they relate to the denial of the right to trial by jury in civil cases? Yes 83.5 percent No 16.5 percent Robert F. Garvey practices with Thomas, Garvey, Garvey & Sciotti in St. Clair Shores. He was the recipient of the 2003 President's Choice Award for his work with the State Bar's "Access to Justice" Program. Garvey is a frequent lecturer on topics related to tort law and trial tactics and is an adjunct professor at University of Detroit Mercy Law School. [Editor's Note: While the author is the current president of the Michigan ABOTA chapter, this was a private effort on his part. Mr. Garvey is also a former Negligence Council member.] http://courthouseforum.com/forums/view.php?id=972891

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