Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Thursday, May 30, 2013

Internet Real Estate Appraisals and Divorce

Ever look-up your home on one of the real estate databases like Zillow or Trulia?  Chances are, you'll find the values lower than you expected.  What's up with that?

Being in the divorce industry, we here at the Law Blogger contract for dozens of real estate appraisals every year.  There are a few licensed real estate appraisers that most of us divorce lawyers know, trust and hire.

Over the past few years, some divorce lawyers have strayed from the concept of having clients pay for an appraisal from a licensed real estate appraiser.  Most appraisers charge between $300 and $500 depending on when the appraisal needs to be completed.

First, lawyers started relying on a basic "market analysis", usually performed via a realtor's drive-by; not an in-home inspection by a licensed appraiser.  Then, from 2008 until just recently, foreclosures had to be factored in or out of the appraisal.

In the last few years, real estate listing and estimate web sites have popped-up.  The two most popular are Zillow and Trulia.  These sites provide quick estimates of the basic value of a home; the problem is the data is too quickly obtained.

These sites seem to under-value real estate by 20 to 25%.  Here's why: the sites use a "secret sauce" that we here at the Law Blogger have learned includes, at least in part, using a distance parameter and simply taking the total square footage of all the homes recently "sold" in that geographic area and dividing that number by the total of the reported sale proceeds.  This calculation yields an average sale per square foot; simply multiply the target property by this average square foot price and, viola, you have an instant estimate; never mind that it will almost always be too low.

The reason the estimate is too low is that the web site formulas catch "dollar sales" and other recorded transfers such as short-sales, and divorce settlements, and lump these nominal net proceeds into the square foot average thus driving that average significantly south.

Also, the Internet estimates do not take a seller's motivation into account, nor are the unique characteristics of a specific home, such as location, taken into account.  For example, a lake-front home is averaged in with non-riparian residences, distorting the intrinsic value of living on the water.

Another  problem with these sites is that the data is not current.  A licensed real estate appraiser must use recent comparable sales.

The lessons here folks: you get what you pay for in appraisals just like anything else; and don't always believe what you read on the Internet.

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Thursday, May 23, 2013

Driving Under the Influence of Medical Marijuana

The Medical Marijuana Act provides medical pot users with certain immunities relative to their use of marijuana.  Even a medical marijuana patient, however, cannot "medicate" while driving a vehicle, raising the question: just how much pot legally can be in the patient-driver's system?

Earlier this week, the Michigan Supreme Court released a much-anticipated decision resolving a conflict in the Motor Vehicle Code and the Medical Marijuana Act here in Michigan.  In a unanimous per curiam opinion, issued without oral arguments, the Supreme Court held in People v Koon that a medical marijuana patient is legal to drive a vehicle, even with some THC in his blood.

Rodney Koon was charged under the "zero tolerance" provision of the Motor Vehicle Code which proscribes driving with any amount of a Schedule 1 drug in the driver's system.  Koon, a properly registered medical marijuana patient, was initially stopped for speeding in Grand Traverse County.

Both the district court and the Grand Traverse County Circuit Court agreed with Mr. Koon's lawyers that the MMA provided Koon with immunity from prosecution under the motor vehicle code's "zero tolerance" provision -case dismissed.  The Michigan Court of Appeals reversed that dismissal, reasoning that even under the MMA, driving under the influence of marijuana remains illegal, and concluding that any amount of marijuana found in a driver's system constitutes "under the influence".

The Supreme Court disagreed, holding that some proof that a driver is operating a vehicle while under the influence of marijuana is necessary; evidence of a miniscule amount of THC in that driver's blood-stream, without more, is not enough to strip that driver of the immunity from prosecution available under the MMA.

This decision essentially amounts to a "sliding-scale" for pot-card carrying drivers.  You had better be sure sufficient time has elapsed between toking-down, and getting behind the wheel. 

We here at the Law Blogger suggest that 15 or 20 minutes clearly is not sufficient to keep the rest of us safe from a pot patient's stoned driving.  But what about an hour or two?

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Tuesday, May 21, 2013

Minnesota Becomes 12th State to Legalize Same-Sex Marriage

Minnesota, land of 10,000 lakes, becomes the 12th state to interpret the phrase, "life, liberty, and the pursuit of happiness", to include the right to chose who you love and marry, same-sex inclusive.  Governor Mark Dayton signed the bill into law on the first business day following a 37-30 vote by the state senate in St. Paul late last week.

When it looked like this bill would pass, many citizens from the state and region congregated near the capitol in celebratory anticipation of the law's passage.  Gay marriage activists and constitutional law scholars alike hail what appears to be significant momentum toward the legal recognition of gay marriage as an individual's civil right.

Other supporters lament, however, that it will likely take decades for all the fifty states -or at least most of them- to pass laws similar to the one in St. Paul last week.

This is why all eyes are on Washington, D.C. and our SCOTUS, where release of the much-anticipated opinion in Hollingsworth v Perry is imminent as the High Court's term comes to a close next month.  At least one federal judge here in Detroit, MI has been holding a same-sex marriage case in abeyance until the SCOTUS decides Hollingsworth.

Minnesota, like Michigan, had a state-law ban on gay marriage.  The lake tides have changed, however, in the course of the past year and within the last election-cycle; the state-law ban in Minnesota was overturned and the gay marriage law passed.  We here at the Law Blogger have to wonder if this could have ever happened when Jesse Ventura was the governor...

Michigan, along with California, Hawaii, Colorado, Nevada, and a half-dozen other states, are seen as battleground states on this issue.  We cannot help but notice the high correlation between the passage of this series of states' civil rights laws, and the presence of a Democratic governor.

We will know more about the progression of this civil rights struggle next month after SCOTUS rules.

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Friday, May 17, 2013

Kwame Blames the Lawyer

We here at this Blog have been there.  You put your heart and soul into a case that goes to trial, giving it everything you've got, sometimes putting your reputation on the line; working into the night and on weekends to prepare.  Getting "paid-by-the-hour" for such ventures is rare, in fact, you rarely ever post all those hours on the peg board at the office. 

Sometimes, as in the case of Kwame Kilpatrick's lawyer, James Thomas, it's a court-appointed gig with a low flat fee.  And when the jury does not buy-into your client's defense, the client often views the guilty verdict as your fault.

Apparently, Kwame has not just been sitting idly in his cell in Milan.  In a recent post-verdict motion for a new trial filed with federal judge Nancy Edmunds, the former Detroit Mayor revealed that he filed a grievance against Mr. Thomas with the Michigan Attorney Grievance Commission [which apparently already has been dismissed], and again raised claims of "ineffective assistance of counsel" in violation of Hizhonor's Sixth Amendment rights.

Well, as one of the tax-payers that paid for that defense, and as a criminal defense lawyer myself, I cannot say that I am surprised.  This is a common tactic when an accused gets convicted in a case where the defendant is adamant about his innocence and ignores both the facts and the reality of his situation, as Kwame has done throughout his tortured proceedings.

The exact same scenario is unfolding out in Las Vegas where O.J. Simpson has also raised a claim of ineffective assistance of counsel against his long-time lawyer, Yale Galanter.  Simpson's case is in the process of exhausting his state law remedies so that he can proceed with a Habeas Corpus petition in federal court.

We here at this Blog certainly champion the accused's constitutional rights; those rights include raising constitutional issues post-trial, and testing one's conviction in the appellate courts.  Most often, those rights come at the tax-payers expense.

And if you've been practicing criminal defense long enough, eventually, you are going to get the blame for a client that goes down in flames.  My veteran legal assistant has a poster in her office for just such an occasion: "Stay Calm and Carry On."

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Thursday, May 16, 2013

Oakland County Circuit Court Open for Business

On June 3rd, the Oakland County Business Court commences here at the Oakland County Circuit Court.  The Michigan Supreme Court has appointed Oakland Circuit Judges Wendy Potts and James Alexander to preside over the docket.

To qualify for the Business Court, a dispute must seek at least $25,000 in damages and all litigants must be business entities; not individuals.  In addition, the Business Court will adopt e-filing and feature cost-saving tools such as audio/video conferencing and an emphasis on alternative dispute resolution.

Judges Alexander and Potts will be assigned cases in a blind-draw system; each judge will serve a 6-year term on the special court.  Bench trials -trials without juries- are expected to be the norm in the Business Court.  Both judges are expected to take a "hands-on" approach to the docket, with a scheduling-emphasis that features bringing the litigants into court early on with an emphasis on settlement; not trial.

If you ask us over here at the Law Blogger, this sounds like a very interesting gig for a jurist; here's why.  The Business Court will be the exclusive forum to hear and resolve the following type of disputes:
  • Information technology, software, web-site design and hosting;
  • Internal disputes within a business organization;
  • Contract disputes, including intellectual property rights;
  • Commercial banking transactions;
  • Commercial real estate transactions;
  • Business or Commercial insurance disputes.
For specific statutory language contained in the Revised Judicature Act controlling which cases are expressly included and which cases are expressly excluded in the Business Court, click here.

Litigants that desire to be included on the Oakland Circuit's Business Court docket should download and complete this Notice of Assignment to the Business Court Form.  For more information about the Business Court, click here.

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Wednesday, May 15, 2013

NTSB Recommends Lowering Drunk Driving BAC

The average female who consumes two drinks in an hour will have a blood alcohol level of about .05.  Yesterday, the NTSB voted to recommend lowering the legal limit from .08, the level that all 50 states have set as their legal limit, to the lower level.

It took more than 20-years for all 50 states to lower the legal limit for alcohol from .10 to .08.  Last month, a bill in the Michigan House calling for a return to the higher BAC was shot down.

If Michigan adopts the NTSB recommendation [unlikely anytime soon], we here at the Law Blogger will need to think twice about ordering that second drink with our dinner.  The American Beverage Institute, the "spirits" lobby, is already taking steps to prevent this recommendation from gaining any traction, calling the NTSB's stance, "ludicrous", and saying the move would criminalize, "perfectly legal conduct".

On the other hand, the NTSB points to the ever-present threat of drunk drivers still on our roadways, and will not let the nation forget that 10,000 deaths still occur each year due to drunk drivers.  Also, the NTSB points to Europe where a similar legal definition of drunk driving has resulted in a significant long-term reduction in drunk-driving related fatalities and injuries.

Experts agree that once a driver's blood-alcohol is over .05, vision begins to be impaired and driving skills are affected.  Most of the time, this is not a problem.

Try telling that to one of the parents who has lost a child to drunk-driving.  Again, we here at the Law Blogger find ourselves saying: have that night-cap at home, and keep the rest of us out of it.

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Wednesday, May 8, 2013

Delaware Becomes 11th Same-Sex Marriage State

Yesterday, Delaware, our first state, became the 11th state in the Union to permit same-sex marriages.  This recent development comes as the SCOTUS decision in the Hollingsworth v Perry case is expected in a few weeks.

The Democratic controlled state legislature approved the same-sex marriage bill yesterday by a comfortable margin in both the senate and house; Delaware Governor Jack Merkell signed the bill into law immediately.

Just last year, Delaware officially recognized civil unions.  These days, however, legislative recognition of civil unions is largely perceived by supporters of gay marriage as a useless consolation prize.  Outright recognition of same-sex marriage has been gaining significant momentum over the past several years.

We here at the Law Blogger have been monitoring this civil rights movement as it moves it's way across the state capitals.  Next stop: Minnesota, where the same-sex marriage issue is being hotly debated and the vote expected later this week will be very close.

As the respective state legislatures address this issue one-by-one, legal scholars, along with the rest of us, await the SCOTUS decision addressing the constitutional dimension of this issue in the two consolidated seminal cases submitted to the High Court during the present term.

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Saturday, May 4, 2013

Mormon Murder Case Submitted to Jury

After 4-months of proofs, the capital murder case against Jodi Arias has [finally] been submitted to the jury for deliberation and a verdict.  Although the murder of Travis Alexander occurred in 2008, the jury was not empaneled until January 2, 2013.

In an interesting preliminary decision, the presiding judge elected not to sequester the jury.  This means that, although they were provided with a daily admonishment not to discuss the case with anyone outside the courthouse, jurors were left to their own devices when faced with the saturation-media coverage of this trial.

We here at the Law Blogger have posted on the topic of social media and the jury pool, and the problems presented by jurors that seek information about their case outside the courtroom.  In such high-profile cases, the jurors realize they are a part of our lurid true-crime history. 

These folks thus become high-profile jurors.  Many hire attorneys or agents after the trial to discuss lucrative media appearances; even book deals. 

Being in the profession of defending the accused, we wonder over here at the Law Blogger how many of the jurors assigned to this case have succumbed to the temptation of tuning into the media coverage of their case.  How many jurors have Googled some of the witnesses, particularly the experts, that testified in this case?

If any such forays come to light [and let's not forget that every Internet user's keystroke is recorded] this defendant will have at least one good appellate issue.  In our opinion, Judge Sherry Stephens should have sequestered this jury or at least obtained their known IP addresses, and she should have concluded the trial in February, not May.

Such cases give our media-rich culture the opportunity to marinate in the art of lawyering.  Some camps favor the prosecutor; others relish the art of defending the accused.

One thing is for sure -these high profile murder trials cement our collective national fixation with sex, religion and violence.  Not that each of us are latent dysfunctional bi-polar borderline personality stalkers.  Yet, as a nation, we just love the spectacle of the public trial; especially a capital murder trial.  Such trials have taken the place of a public execution in the town square.

Even with an inevitable jury conviction of some degree of homicide, unfortunately Ms. Arias will be with us for decades.  We here at this blog can already see the appeals beginning to form...

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Friday, May 3, 2013

Dying Wealthy Yet Intestate

Time and again we hear this sage advice, usually from our probate attorney friends: "get your estate plan in order because you want to avoid dying intestate" [i.e. without a will or estate plan of any kind].

As a Public Administrator here in Oakland County, I had to appreciate this story from last Sunday's NYT: He Left a Fortune, to No One.  The article profiles 97-year old Holocaust survivor Roman Blum whose estate is estimated to be worth $40 million, but who died last year without a will or any other estate plan.

Those that knew Mr. Blum, a resident of New York, heard him tell of a wife and child that perished in a concentration camp in Poland during WWII.  His American wife died in 1992; the couple was childless.

One of Blum's friends interviewed in the article stated that she was able to get Roman to agree to see a probate lawyer in order to execute an estate plan.  She was even going to take him to see the lawyer after she returned from a trip, but it was too late -Mr. Blum passed away before she returned.

So what now becomes of Mr. Blum's substantial estate?  It is in the hands of a Public Administrator; an attorney that is appointed to manage the estate of a decedent when there is no family or other specifically nominated persons to do so.

And where does Blum's significant estate go?  To the state of New York.  And I am sure we can all agree that this is the best repository for Mr. Blum's millions.

Blum is probably turning over in his grave; also something that the Public Administrator had to arrange.  One of the decedent's friends, himself a Holocaust survivor, put it bluntly in the NYT article: "He was a very smart man but he died like an idiot."

Don't be that guy.  Hire a probate lawyer to plan your estate.

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Wednesday, May 1, 2013

Rhode Island to Become 10th State to Allow Same-Sex Marriage

In the next few weeks, the United States Supreme Court will decide a series of same-sex cases from Massachusetts and California.  Meanwhile, the tiny state of Rhode Island is expected to become, through the passage of legislation, the tenth state to approve same-sex marriages.

The bill has been approved by both houses of the RI legislature; the state senate made some minor changes last week.  A procedural vote is scheduled for tomorrow and RI Governor Lincoln Chafee is expected to sign the bill into law shortly thereafter.  Once signed by Gov. Chafee, the law takes effect August 1st. 

RI is the only New England state not to have approved same-sex marriages.  A bill has been introduced into the RI legislature every year since 1997. 

Although civil unions were approved by the RI legislature two years ago, only a few couples have sought this status.  Last night at midnight, Colorado passed legislation approving civil unions and it's legislature is now expected to sponsor same-sex marriage legislation.

In Iowa, the state legislature has voted to cut the salaries of the 4 justices that remain on the Iowa Supreme Court from their decision striking down a ban on same-sex marriage on grounds that the law violated Iowa's constitution.  [Note: the other three justices that were part of the unanimous 2009 decision did not make it past the 2010 state elections.]

All this activity across the country has feed speculation among legal scholars as to what SCOTUS will do with the companion cases that were argued last month.  The consensus posits that SCOTUS will avoid a sweeping constitutional ruling along the lines of Roe v Wade and instead, will issue an opinion that the same-sex marriage issue is a matter to be decided on a state-by-state basis.

The SCOTUS term ends on June 20th; an opinion on the same-sex marriage issue is expected between now and then.

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