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Do I have an Appeal?

Posted on Monday, October 31, 2016
 Liisa Speaker has some quick suggestions as to whether you may or may not have an appeal in your legal matter.


If you're looking into appealing your trial coiurt order, please call our office at 517-482-8933 to speak to part of our team.

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Trial Court Erred By Making Appointed Attorney Fees Contingent on Appeal Outcome

Posted on Wednesday, October 26, 2016
In In re Attorney Fees of Mitchell T. Foster (Docket No. 327707), the Court of Appeals reversed a trial court decision denying reasonable attorney fees to an appointed criminal defense appellate attorney because his application for leave to appeal was denied “for lack of merit in the grounds presented.” Mitchell Foster was appointed by the Iosco Circuit Court to serve as the defendant’s appellate attorney. He filed a delayed application for leave to appeal a plea-based conviction on sentencing grounds, but the Court of Appeals denied the application “for lack of merit in the grounds presented.” To appellate practitioners, a denial of leave “for lack of merit” is a typical stock phrase. It does not mean that the case was frivolous, as it is entirely possible to raise a non-frivolous argument and still lose your case, let alone simply have your case’s application denied.

Mitchell Foster: www.mitchfosterlaw.com


Yet, the Trial Court in In re Attorney Fees of Mitchell T. Foster refused to allow Mr. Foster, the defendant’s appellate attorney, to be paid for his preparation of the application for leave to appeal. The Trial Court stated that the county could not afford to pay for attorneys to “file stuff that doesn’t have a basis of merit to it.” The Trial Court maintained that any time an application for leave to appeal was denied based on the merits, appointed appellate counsel could not be paid.

The Court of Appeals reversed the Trial Court’s decision, noting that defendants have a right to the appointment of counsel for first tier review after a plea-based conviction. The attorneys appointed to represent these defendants, likewise, have a statutory right under MCL 775.16 to reasonable compensation for their work. This right to compensation may not be made contingent on the outcome of the matter, as the Trial Court did here. Indeed, the Court of Appeals noted that such a contingency fee arrangement in a criminal case would violate the Michigan Rules of Professional Conduct.

The Court went on to clarify that use of the stock phrase “for lack of merit in the grounds presented” does not necessarily say anything about the merits of the case, but may simply mean the Court found the matter unworthy of expenditure of further judicial resources. There is some tension between this clarification and the Court of Appeals’ decision in a recent unpublished case, MacDowell v Houghtaling (Docket No. 328902), where the Court concluded that the phrase “for lack of merit in the grounds presented” “clearly expressed an opinion on the merits of plaintiff’s arguments” and showed “that plaintiff would not have succeeded in an appeal as of right,” insulating his appellate attorney from malpractice liability for failing to timely file his claim of appeal.

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McLain v City of Lansing Fire Department

Posted on Monday, October 24, 2016
The Michigan Supreme Court heard oral arguments in McLain v City of Lansing Fire Department on October 6, 2016 to decide whether to grant leave to appeal. Tracy McLain sought emergency treatment as a result of a respiratory attack. Emergency personnel inserted a breathing tube due to her low blood oxygen levels and transported her to the hospital. She alleges that the emergency personnel placed the tube in her esophagus rather than her trachea and that they acted with gross negligence where they did not check her blood oxygen levels with a pulse oximeter during the entire transport to the hospital. Upon arrival at the hospital, the emergency department notes indicate that the tube was placed in the esophagus. By that time, Ms. McLain had suffered irreparable brain damage due to her prolonged low blood oxygen levels. The Trial Court dismissed plaintiff’s complaint, holding that she failed to establish a genuine issue of material fact that defendants’ actions rose to the level of gross negligence. The key issues were: (1) whether a hospital note stating that the tube was observed as being in the esophagus is admissible where the intern who dictated the note had no personal knowledge of the tube placement and could not recall the source of the information recorded and (2) even if the note is admissible, whether the note was sufficient to create a question of fact as to gross negligence. The Court of Appeals affirmed the Trial Court in a published opinion. 


 Oral argument in the Supreme Court centered mostly on the type of conduct required to establish a claim of gross negligence. Chief Justice Young began the hearing by noting a policy concern of discouraging people from engaging in emergency services under threat of malpractice claims. Plaintiff argued, however, that in this case, the issue was not one of mere negligence, but involved a complete failure of the emergency personnel to care for the patient by failing to check the patient’s blood oxygen levels at all after placement of the tube. Defendant argued that use of a pulse oximeter is not the only way to check a patient’s oxygenation and that the emergency personnel were properly attending to the patient the entire time the patient was being transported, this demonstrating concern for her condition. Very little oral argument was dedicated to the admissibility of the hospital record.  
  
The Supreme Court denied the Application for Leave to Appeal on October 12, 2016. 

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Speaker Law Does Bar Exam Appeals

Posted on Wednesday, October 19, 2016
Our attorney, Sandra Lake, discusses some key points on Bar Exam Appeals and how to start looking into appealing your Bar Exam score:


Here at Speaker Law Firm we understand that bar exam appeals are time-sensitive.  Please call Sandra at 517-482-8933 or email her at slake@speakerlaw.com.

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Michigan Bar Exam Results

Posted on Friday, October 14, 2016
The Michigan Board of Law Examiners has posted the list of people who passed the July 2016 bar exam by seat number. Here is the link to the list.

 Congratulations to those who passed.

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Michigan's SORA labeled "Byzantine Code" by the 6th Circuit

Posted on Wednesday, October 12, 2016

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. U.S. Const., art 1, sec.10, cl.1

In a recent opinion, the US Court of Appeals for the 6th Circuit declared recent amendments to Michigan's Sex Offender Registry Act (SORA) to be ex post facto law, reversing the lower court opinion and remanding it back to the lower court.

Facts: MI SORA statute began in 1994 as a nonpublic registry maintained for law enforcement. In the view of the 6th Circuit , it has grown into a "Byzantine Code" governing every aspect of a sex offender's life. Amendments, passed over time, changed the registry's role in society as follows:
     1999-the registry became available online and offenders must register in person either quarterly of annually
     2006-prohibited registrants from living, working or loitering within 1000 feet of a school
     2011-divides registrants into three tiers based on crime of conviction and they must appear in person immediately when they buy a car, create a new e-mail or any other life change.

Amendments passed in 2006 and 2011 are applied retroactively to all registrants.

The plaintiffs (five John Does and one Mary Doe) are registered sex offenders challenging the statute on a number of grounds including that the retroactive application of the 2006 and 2011 amendments amount to ex post facto punishment prohibited by the Constitution. (US Const, art 1, sec. 10, cl 1).

Ex Post Facto analysis:

The ex post facto clause was one of the first, Constitutional question to be addressed by the Supreme Court in 1798, which held that the ex post facto clause doesn't ban all retroactive lawmaking, only retroactive punishment. It has become a powerful check on the states when they tried to punish socially disfavored people without prior notice. Courts have held that "It is the effect, not the form, of the law that determines whether it is ex post facto." Weaver v Graham 450 U.S. 24, 31 (1981)

A civil and regulatory law such as SORA doesn't violate the Ex Post Facto clause unless the challenger can clearly and convincingly show that the civil remedy is really a criminal penalty. A two-prong test was established in a case challenging Alaska's sex-offender registry law.

1.      Did the legislature intend to impose punishment?
2.      If not, is the statute so punitive in purpose or effect as to negate the state's intention to deem it civil?

The 6th Circuit first decided that the legislative intent of SORA was not punitive.

Then, looking at the effect of SORA, the court concluded the law was punitive for the following reasons:
1.      SORA resembles the ancient punishment of banishment because offenders are prohibited from living, working and loitering within 1000 feet of a school;
2.      SORA's requirements resemble traditional shaming punishments. SORA publishes three classifications corresponding to the state's estimate of dangerousness of the offender’s conviction.
3.      SORA is a form of parole. The reporting requirements are extensive and bear a number of similarities to parole/probation.

While the purpose of the registry is to prevent recidivism, there is scant proof the it accomplishes its goals. There are many reports finding that offense-based public registration has no impact on recidivism.

The 6th Circuit held that because SORA 2006 and 2011 impose punishment retroactively and without notice, it is an Ex Post Facto Law. It is now up to the legislature to address the problem, which it began to do in December.

In the meantime, this decision has generated a hotbed of post-opinion motions. It is anticipated that the State of Michigan will file a petition for Writ of Certiorari in the United States Supreme Court.

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The Appellate Process For A Bar Exam Appeal

Posted on Monday, October 10, 2016

Once your bar exam appeal is submitted, it generally takes several weeks to receive your results. If your appeal is unsuccessful, no additional appellate review is allowed. Your only option is to file a complaint for superintending control with the Michigan Supreme Court. In other words, you really only get one shot at an appeal.

 Should I Hire A Lawyer To Ghostwrite My Bar Exam Appeal?  

 Only you can answer that question. At a minimum, it will benefit you to have Speaker Law evaluate your exam for free and give you an opinion as to whether it would be worthwhile to appeal.

 Please contact our attorney, Sandy Lake to help with your Bar Exam Appeal.

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Determining Whether To Pursue A Bar Exam Appeal

Posted on Saturday, October 8, 2016

A key factor in determining whether you should appeal is knowing how many additional points you need to pass the exam. If you have failed by only a few points, you should consider having your essay exam evaluated by an attorney. You will also want to review the scoring of your essay answers to make sure that there are no human scoring errors (such as your essay clearly warranted a score of “10", but was only scored a “1").

 To determine your score, you will need to order a copy of your bluebook (or ExamSoft answers) immediately by sending a written request and a $20 money order. You can also call the Board of Law Examiners and ask how many points you need to pass the exam. We cannot stress enough that these two steps should be taken immediately upon receipt of your bar exam results.

Once you have your bluebook/ExamSoft answers, Speaker Law will review and evaluate them for free and provide you with an honest assessment as to whether it would be worth pursuing an appeal.

 Filing an Appeal.

 Time is critical. Once the exam scores are released, you have thirty (30) days from that date to ask the Board of Law Examiners to reconsider your essay scores. The Board of Law Examiner policy statements provide that “[a]ppeals must be postmarked by the date stated in the material received by applicants failing the exam.” Unless there was a delay in releasing your results pending the Board’s receipt of your law school certification, there are NO exceptions to this deadline.

 To appeal your essay score, you must submit a request, the answers given in your bluebook, and an explanation why you deserve a higher grade. Although this sounds straightforward, convincing the Board that you are entitled to additional points requires an objective and honest assessment of your answers. Creative argument is unlikely to yield you additional points. This is where an experienced appellate advocate can benefit you. It is very difficult for you to evaluate your answers objectively during such a stressful time.  

Please contact our attorney, Sandy Lake to help with your Bar Exam Appeal.

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Michigan Bar Exam Appeals

Posted on Friday, October 7, 2016
Bar Exam Appeals.

Bar exam appeals are fast-paced and procedurally inflexible. If you have just learned that you did not receive a passing score on the Michigan Bar Exam, you need to move quickly to preserve your appeal. Speaker Law can help you navigate through the dicey appellate waters to ensure preservation of your rights and to ghostwrite your appeal for you.

Very few law firms in the State of Michigan dedicate their entire practice to appellate work. Our firm’s sole commitment to appellate work provides our clients with superior written advocacy, which is critical in appealing your bar exam essay score.

How The Exam Is Scored.

The bar exam is made up of two components: the multistate exam and the essay exam. The multistate portion is worth up to 200 points. The essay portion of the exam consists of 15 questions, each worth a maximum of 10 points. The formula used for scoring the exam is:

Combined Score = [scaled essay score + MBE score] / 2

To pass the exam, you need a combined score of 135 or higher.


Please contact our attorney, Sandy Lake to help with your Bar Exam Appeal.

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Supreme Court Opinion Questioned

Posted on Monday, October 3, 2016
The Supreme Court (SCt.), after granting leave and taking full briefing and arguments in Black v Shafer, (149516), reversed the Michigan Court of Appeals (312379) and reinstated Wayne County Circuit Order granting Summary Disposition in favor of the defendant Anthony Shafer. The SCt decided the case on proximate cause, which was not an issue it asked the parties to address.

The Facts are of interest. Plaintiff, as Next Friend of 16-year-old Jessica Bitner, sued Bitner’s boyfriend, Ian Gearhart, after Bitner was accidentally shot in the leg by Gearhart while they were social guests at Anthony Shafer’s grandparents’ home. Shafer, 30 years old, invited Bitner, Gearhart and friend, Stephanie Sutton, to come to his grandparent’s home, situated near a lake for an evening of swimming. Alcohol was supplied by Gearhart and Shafer. The group was partying in the den, a converted garage. William kept a short barrel shotgun, loaded with two shells was leaning against the wall. Shafer knew of its existence and that it was loaded.

Gearhart, who was drinking, became curious about the gun. When he picked it up, Shafer took it from him, checking to be sure it was unloaded. With the safety off, he handed it to Gearhart who examined it and then put it back in the corner. At one point the women went home but, invited back by the two men, returned. The group drank alcohol and went swimming. Gearhart and Bitner returned to the den. Bitner saw Gearhart pick up the shotgun. The gun discharged and Bitner was shot in the leg.

Wayne County Circuit Court held for defendant, finding that there was no special relationship between plaintiff and defendant, that the shooting was unforeseeable and that the defendant didn’t breach the limited duties owed to licensees.

The COA disagreed. In the majority opinion, the court reversed the trial court stating that defendant owed plaintiff a duty of ordinary care as a general matter and because a “special relationship” existed between the parties. A special relationship was established because Shafer 1) invited and picked up Bitner, 2) provided her with alcohol he purchased and 3) allowed the intoxicated Bitner and intoxicated Gearhart into his garage with a loaded, displayed shotgun with its safety off.




COA Judge Kathleen Jansen wrote a dissent. Arguing that Bitner, a social guest of Shafer, was a licensee and, as such, was entitled to expect that she be informed of any dangerous condition such as the shotgun. Because, she opined, the gun was in plain sight, the danger was readily apparent. Judge Jansen went on to argue that since Bitner, a minor, was illegally consuming alcohol, no special relationship existed between the parties and thus there was no duty to protect by Shafer.

I disagree with the Supreme Court decision in this case.

The court said that reasonable minds could not differ that the shooter was an intervening cause that broke the chain of proximate cause from the guy who left the shotgun at the party.  I think most definitely it is a fact issue and that reasonable minds could differ. There was a time gap between the time Gearhart, the shooter, first handled the gun and when the shooting happened, but it was not days, but mere hours.  And, where there is a loaded gun at a party where drinking is occurring, it is, in my mind, reasonably foreseeable that someone will decide to shoot it.

The case, in my opinion, should, as ordered by the COA, be reversed and returned to the trial court for further proceedings.

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