Monthly Archives: July 2016

Distinguished Brief Award Focuses on Importance of Careful, Thorough Writing

The WMU-Cooley Law Review hosted its 31st Annual Distinguished Brief Award ceremony on July 21, 2016, at the Country Club of Lansing. This unique event celebrates the best of Michigan’s practicing bar, formally recognizing authors of the three most scholarly briefs filed with the Michigan Supreme Court in each Court term.

WMU-Cooley Law Review Symposium Editor Courtney Sierra, WMU-Cooley Law School President Don LeDuc, Hon. Stephen Markman, Distinguished Brief Winners Desiree Ferguson, Brett DeGroff, Brent Morton, Joshua Van Laan, and WMU-Cooley Professor and Law Review Advisor Mark Cooney

WMU-Cooley Law Review Symposium Editor Courtney Sierra, WMU-Cooley Law School President Don LeDuc, Hon. Stephen Markman, Distinguished Brief Winners Desiree Ferguson, Brett DeGroff, Brent Morton, Joshua Van Laan, and WMU-Cooley Professor and Law Review Adviser Mark Cooney

Professor Mark Cooney, the Law Review’s faculty adviser and the event emcee, noted that this award reflects the importance of effective writing and the school’s longstanding commitment to teaching and celebrating effective writing.

“You’ve got to persuade your reader with the brief. And the judges and court staff who read appellate briefs are swamped with briefs on every imaginable issue, so it’s crucial to write clearly and concisely, with strong organization. And for Michigan Supreme Court briefs, writers must clearly articulate what the proper rule should be going forward.”

After the event, Cooney, who was an appellate specialist in his practice days, mentioned that WMU-Cooley’s writing courses “have always emphasized clarity and all the seemingly little techniques that writers must master to achieve clarity. If the brief isn’t clear,” he said, “you can’t possibly persuade your reader. Confusion and frustration aren’t good recipes for persuasion.”

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The Law Review was thrilled to have so many pillars of the Michigan legal community in attendance and appreciated their words of wisdom. Courtney Sierra, Law Review’s editor, shared that “This experience has shown me just how vital excellent writing can be in our legal system and that striving for exceptional writing is a key to being successful in my new career.”

She also offered her thanks to the attendees and “to my Law Review colleagues — especially Jon Paasch, Zach Green, Lyndsey Hof, Nick Langenkamp, and Shiela Burke — for helping me plan the event.” She noted that the Law Review will publish each winning brief in an upcoming volume.

The Law Review’s special guest was Justice Richard H. Bernstein, who gave an eloquent, heartfelt introduction of the evening’s keynote speaker, Justice Stephen J. Markman. Attendees were captivated by Justice Bernstein’s positivity and his gifts as an orator.

Hon. Richard Bernstein

Hon. Richard Bernstein

Justice Markman’s thoughtful keynote speech focused on the importance of careful, thorough briefs. He  highlighted the need for well-organized and well-written briefs not only for effective advocacy for clients, but for helping the Supreme Court appreciate why the case is important to Michigan’s larger jurisprudence. He added a light-hearted note about how even the finest briefs cannot ensure victory, recalling that although he’d voted for two out of the three award winners this time, at a past dinner he’d seen three winning briefs that had not garnered his vote in the cases.

Hon. Stephen Markman

Hon. Stephen Markman

During the ceremony, Professor Cooney thanked the panel of judges who evaluated the briefs and selected the winners. He told the audience that the list looked like “a judicial all-star team — perhaps our finest group yet, including veteran judges from every level of Michigan’s court system: Honorable Brian K. Zahra, Honorable Bridget Mary McCormack, Honorable Rosemarie E. Aquilina, Honorable Patricia D. Gardner, Honorable Kirsten Frank Kelly, Honorable Kathleen Jansen , Honorable Patrick M. Meter, Honorable Christopher M. Murray, Honorable Michael J. Riordan, and Honorable Paul J. Denenfeld.” He thanked them for “the generous gift of their time and expertise.”

The Distinguished Brief Award winners, who included one recent WMU-Cooley graduate, were recognized for producing exceptional briefs while balancing busy caseloads. This year’s winners were all criminal-law practitioners, a first. They were (listing attendees first and then in alphabetical order):

  1. Brett DeGroff, Desiree Ferguson, and Michael L. Mittlestat (State Appellate Defender’s Office) (People v. Lockridge);
  1. Brent E. Morton and Douglas R. Lloyd (Eaton County Prosecutor’s Office) (People v. Uribe);
  1. Joshua R. Van Laan, Victor A. Fitz, and Eric J. Smith (Macomb County Prosecutor’s Office) (People v. Seewald).

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Arbitration, rather than litigation, can be a useful and efficient method of dispute resolution

Recent events and national news stories dealing with employment-discrimination arbitration and university investigations of employment matters raise important law and accountability issues.  Arbitration clauses within employment contracts can conceal the evidence and decision from peer and public evaluation, silencing those whom the misconduct most harms and thwarting other appropriate actions.  In higher education, some colleges and universities have had outsiders conduct investigations but without documenting in writing the results, likewise leading to lack of public accountability.  Consider each of these issues in turn, first with arbitration.

Every so often, the subject of arbitration receives a few paragraphs or columns on the front page of national newspapers. The stories generate interest for a day or two over whether arbitration clauses diminish or encumber access to justice, and eliminate the judicial process’s transparency.

My concern is that arbitration can in the wrong cases or types of cases adversely impact consumers, companies, employers, and employees not only on economic rights but on fundamental constitutional rights such as trial by jury and freedom of speech.

Arbitration is appropriate for essentially private matters.  While many of the public, for instance, would find reports on the details of the dissolution of the marriage between Brad Pitt and Jennifer Aniston interesting to read, confidential arbitration or other private judging process may yet preserve important privacy rights, particularly where children and other sensitive relationships and interests are involved.

Other disputes may not warrant equivalent confidentially, though.  When, for instance, a media outlet on which the public relies for accurate information finds members of its news staff embroiled in sexual-harassment claims, the public may have a greater interest in a public airing of the dispute, particularly if the claims relate in some way to the veracity of the outlet’s public reports.  An employment agreement that prevents the putative victim of the misconduct from making any such public airing may both prevent the public from making sound judgments on the reliability of the outlet’s work and also prevent other putative victims from learning about the matter and coming forward with corroborating experiences.

Then consider another national news story, this one involving how higher education investigates significant employment issues.  Another recent story involving a large university with a national reputation involved allegations of sexual misconduct at the university that the university had an outsider investigate, while producing only an oral report.  Recognize the potential for abuse or misuse of such a process.  Without any written findings to share, no peer member of the institution or member of the public could review, evaluate, and comment on the findings—or the university’s response to the findings.

Presumably, the university preferred the oral report for public-relations reasons and perhaps also to protect student or employee privacy.  Yet consider the risk and danger of failing to warn students or others of potential dangers and the very significant damage to the university’s own reputation in the event that further harm does result and the public concludes that the oral report amounted to a cover-up.

Sensitive and effective dispute resolution requires more than a one-size-fits-all approach.  Secrecy through arbitration clauses and oral reports may in certain cases, probably rare cases, be appropriate.  Yet dispute resolution often benefits from an open and transparent process.  Everyone closely involved seems to want to cover-up the event, when public scrutiny of the process, and even public participation in the process, may instead be the only appropriate course.  Open dispute-resolution processes diminish speculation.  They build rather than destroy public trust.  Studies also indicate that when the participants understand a process to be fair, participatory, thorough, and transparent, even the losers are more willing to accept and comply with the result.

Blog author Professor Graham Ward is the director of WMU-Cooley Law School’s Center for the Study and Resolution of Conflict. The Center offers seminars and specific undergraduate and graduate-level courses that teach participants how to improve the way they deal with conflicts.

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Everyone is a Kid on Cooley for Kids Day!

This July, WMU-Cooley Law School hosted its 16th annual Cooley for Kids Day. It was another sunny, perfect day. Hundred of kids shared in the festivities of the day, including the traditional parade around the outfield, pre-ceremony activities, and an afternoon to relax and take in a Lansing Lugnuts ball game.   

kids

What was unclear was who was having more fun – the kids or the law students! 

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Everything about the day is about the kids. But the fun begins well before the actual day. Kids spend the weeks before Cooley for Kids Day designing amazing and colorful student-made banners, all to be proudly displayed during the walk around the outfield as part of the parade festivities.

Kids are asked early in the summer to write essays for the chance to be selected for the nine-person Dream Team. Winning team members, nine kids and nine law students, get to run together from the dugout to their designated ball player on the field before game start. A child and a law student also get to throw out a first pitch as part of the pre-game celebration. This year, Andrea Woods was the law student who had the privilege to sing the national anthem.

After the Dream Team runs off the field, the children receive a gift bag from WMU-Cooley, then join the rest of the kids to spend the afternoon taking in a Lansing Lugnuts baseball game, which includes lunch and a memento of the day. Law students get to join other faculty and staff in the Owner’s Suite to enjoy the game and lunch, and a well-deserved break from their studies.20160725_114316-COLLAGE

Every year, we look forward to Cooley for Kids Day.  It’s always an amazing, fun time, and we know we can count on a beautiful day with great weather. After all, in 16 years we are batting a thousand!

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Heat wave is here – and so is the need to legally protect our pets

Alicia Prygoski

Alicia Prygoski

Guest columnist Alicia Prygoski is a May 2016 graduate of Western Michigan University Cooley Law School. She works on farm animal protection policy initiatives for The Humane Society of the United States Farm Animal Protection Team in Washington, D.C. During her time at WMU-Cooley, she founded a Student Animal Legal Defense Fund chapter and brought many animal law-related events and opportunities to the Lansing campus. While in law school, she was also a member of the State Bar of Michigan Animal Law Section and a volunteer with Michigan’s Political Action Committee for Animals. Alicia also received the Wanda Nash Award from the State Bar of Michigan Animal Law Section for outstanding dedication to learning about and promoting animal law issues.

Michigan bill would protect animals left in parked cars

Since graduating from Western Michigan University Cooley Law School this spring, I’ve devoted my time to enacting farm animal protection laws with The Humane Society of the United States. I chose to focus on helping farm animals because of the horrible, systemic cruelty that is inflicted upon them in factory farms and slaughterhouses across the country. In the agriculture industry, farm animal abuse is the norm. My goal is to change that.

However, I know all too well that other animals desperately need protection, too, which is why I’m grateful that Senators Curtis Hertel and Rick Jones have chosen to stand up for Michigan’s pets by introducing Senate Bill 930. This common-sense bill would make it illegal to leave an animal confined in a car under life-threatening conditions, such as extreme heat or cold. Under the bill, penalties would increase depending on the degree of harm suffered, with the strongest being a felony and up to five years in jail if the animal does not survive. Sixteen other states have passed similar measures.

Common sense tells us that leaving an animal in an unventilated car on an extremely hot day will cause dehydration, heat stroke, or death. But what many people don’t realize is that even in milder weather or when the car’s windows are open, our pets can rapidly overheat. For example, on a pleasant 70-degree day, the temperature inside a vehicle can reach 99 degrees within 20 minutes. For most animals, especially those with heavy fur coats or short noses, being confined in a car at that temperature can be deadly.

Many pet parents who leave their dogs or cats in cars are not ill-intentioned. They simply run into the grocery store, assuming it will only take a few minutes – but then a few minutes turn into 10 or 15, and their pet ends up suffering the often fatal consequences. Being a good caretaker includes planning for our companion animals – whether that means leaving them at home, dropping them off at day-care, or calling ahead to find out if the restaurant or store you’re visiting allows pets – it is part of the responsibility we take on when make them part of our families.

There have been too many avoidable deaths in Michigan resulting from animals being left alone in cars. Now that the hottest part of the summer is upon us, SB 930 is needed more than ever to act as a deterrent against people who don’t think twice about leaving their pets in cars as well as ensuring that those who do are held accountable when their pet suffers for it.

As someone who will forever consider herself a Michigander, I am proud of my state’s legislators for introducing this common-sense legislation that will help prevent extensive suffering and save so many lives. The HSUS works every day to protect all animals, from cows, chickens, and pigs to the dogs and cats in Michigan, pushing for standards that allow them to live their lives free from suffering. I sincerely hope that the Michigan legislature passes this bill and becomes the next state to protect animals trapped in hot cars.

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Quintessential Practical Legal Scholarship: WMU-Cooley Innocence Project Intern Joseph Daly Argues Client’s Case

Blog author, Marla Mitchell-Cichon, is the director of WMU-Cooley Innocence Project as well as the co-director of the Access to Justice Clinic for Western Michigan University Cooley Law School. Professor Mitchell-Cichon has extensive practice experience in criminal and poverty law. Her litigation experience includes practicing before the U.S. Court of Appeals for the Sixth Circuit, the Ohio Supreme Court, and trial courts in both Ohio and Michigan.

What if you had to argue your first case before you passed the bar examination? Cooley graduate and legal intern Joseph Daly did just that.

Joseph Daly and Professor Marla Mitchell-Cichon at graduation in May 2016

Joseph Daly and Professor Marla Mitchell-Cichon at graduation in May 2016

In March, the WMU-Cooley Innocence Project filed a motion for a new trial on behalf of Octaviano Molina Jr., citing new evidence that casts doubt on Molina’s involvement in a 1998 rape case. Legal intern Joseph Daly wrote the motion under my supervision. He spent countless hours researching, drafting and fine-tuning his arguments.

In May, Joseph graduated from WMU-Cooley, but stayed on with the WMU-Cooley Innocence Project as a volunteer. His hard work paid off — the case was set for oral argument on the motion on June 27. In his first court appearance, Joseph argued the motion before Genesee County Circuit Court Judge Joseph J. Farah.

The Cooley Innocence Project Team

The WMU-Cooley Innocence Project team

Our office put Joseph through several practice arguments. I assured him that he was prepared for any question posed by the judge. Except for the one he was asked right out of the box. Judge Farah asked Joseph if he was familiar with the Michigan Supreme Court decision in People v. Swain. I gulped. We didn’t cover that case in our practice arguments. The case itself wasn’t particularly relevant to our case, but I was concerned the question would throw Joseph off. But then I heard Joseph respond that he was familiar with the case and that he had watched the oral arguments. Yes, I recommended to all of the innocence project interns to watch the oral arguments in the case, but students don’t always do the “extra reading.” But Joseph was thinking and acting like a lawyer.

After hearing argument, Judge Farah ordered an evidentiary hearing to consider new evidence, including DNA evidence that identifies a second man never charged with the crime. Joseph had to remind the judge that the hearing would have to be scheduled after the July bar exam.

Joseph promised Mr. Molina that he would follow through with his case to the end.  Joseph has stayed on with the project to do just that. You can’t argue with that.

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A Decade Debate: Is Law a Learned Profession or a Profession of Theory?

In a recent op-ed piece, Judge Richard Posner of the seventh circuit asks why more law schools do not hire professors with extensive “real-world” practice experience.[1]

DevinSchindler-179

Historically, and to this day, there has been a standard path towards professorial appointment, and it goes like this:

(1) Do very well in a highly ranked undergraduate program;

(2) Get accepted to the most selective law school you can;

(3) Obtain a Judicial clerkship with a circuit court judge known for placing clerks on the Supreme Court

(4) Lock down that plum position as a clerk on the Supreme Court.

The denouement of this 10-year path, for some, has been a professorial appointment at your local, exclusive law school.


Notably absent from this formula though is a requirement for those professors to have actual practice experience.  There is no argument that professors from this milieu are very bright and admittedly capable of writing outstanding law review articles, giving insightful speeches at seminars, and capable of training the next generation of law clerks, professors and scholars.  They deserve both our respect and congratulations on a job well done.

However, as the Carnegie Report stated nearly 10 years ago, “Most law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice. Unlike other professional education, most notably medical school, legal education typically pays relatively little attention to direct training in professional practice. The result is to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner, conveying the impression that lawyers are more like competitive scholars than attorneys engaged with the problems of clients.”

Judge Posner has his doubts too. Even today. He suggests that there is still a continuing divide between what he calls “the academy” of law professors and the “actual practice of law.” His solution is one that Western Michigan University Cooley Law School has as part of their mission since its founding in 1972. Unlike most law schools, WMU-Cooley has always focused on training students for the actual practice of law. To accomplish this goal, the School has long taken Judge Posner’s advice by hiring “a high percentage of lawyers with significant practical experience.” In fact, WMU-Cooley will not hire a professor unless he or she has actual practice experience.

WMU-Cooley full-time faculty have an average of 11 years of actual practice experience. To that end, the law school also injects a deep bench of adjunct faculty comprised of engaged practitioners and Judges with specialized and ongoing experience in the subject matter they teach.  This combination of experience and knowledge is critical to the accomplishment of the school’s mission of training the next generation of knowledgeable and skilled practitioners.  The American Bar Association agrees. The latest ABA Standards and Rules outline the importance of learning outcomes including teaching law students the “proper professional and ethical responsibilities to clients and the legal system” and “other professional skills needed for competent and ethical participation as a member of the legal profession.”

Both Judge Posner and the ABA understand that law is a learned profession. WMU-Cooley believes the best way to learn a profession is not in the rarified air of a debating society.  Rather, it is through the guided experience of learning from those who know what it means to represent clients, know what it means to argue cases, and know what it means to negotiate a complex business transaction.

schlinder_devinBlog author Professor Devin Schindler teaches Constitutional Law and Health Care Regulation at WMU-Cooley Law School’s Grand Rapids campus. Before joining the Cooley full-time faculty in May 2007, Professor Schindler was a partner with the law firm of Warner, Norcross & Judd, in Grand Rapids, Mich., 1986-2007. He has appeared three times in front of the Michigan Supreme Court, most recently winning in the case Tomecek v Bavas. Professor Schindler has litigated numerous constitutional issues at all levels of state and federal courts, including the Michigan Supreme Court and the Sixth Circuit Court of Appeals. In addition to being named a Superlawyer by The Detroit News, Professor Schindler has also been named as one of “The Best Lawyers in America” in the fields of healthcare law and commercial litigation.

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Military Feature Mariko Willis: Military and Law School at the Center of Her Heart

WMU-Cooley, as a Military friendly and designated Yellow Ribbon School, talks to its military students, faculty and graduates about their journey from the military to law school and about their career goals. This month we feature WMU-Cooley law student Mariko C. Willis. Mariko has recently been selected to be a Marine Corps Staff Sergeant.

Military rank and title: Sergeant (Staff Sergeant Select), Platoon Sergeant, Utilities Platoon

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Why did you decide to go to law school and why did you choose WMU-Cooley: After obtaining his Bachelor’s Degree at Western Michigan University, my father went to the University of Florida law school and, at age 29, was appointed by the governor as Judge in Van Buren County, Michigan. He is the youngest Judge in Michigan history, as well as the longest-serving probate Judge in Michigan, serving for over 38.5 years, retiring in 2015.  Following in his footsteps, my older brothers, Michael and Shaun Willis, both became attorneys and now practice in Michigan as well.  As a child, it was my intent to also go to law school; however, after my other brother (a Marine), Christopher Willis, died in a car accident shortly after his return from Iraq in 2003, I switched gears and joined the Marine Corps in my brother’s honor.

Career description: I joined the Marines in 2003, splitting an 8-year contract between reserve and active duty orders.  I was honorably discharged in 2011 and then continued my education obtaining a bachelors degree of science in business management.  After being out of the service for three years, I decided to re-enlist in the United States Marine Corps Reserves in 2014, at the same time deciding to pursue my education at WMU Thomas M. Cooley Law School.  I am in my second year of law school and currently have a total of 10 years in the Marine Corps. My decision to re-enlist in the military was an easy one – it has been at the center of my heart since I first joined in honor of my brother.  My decision to go to WMU Cooley was based not only on proximity, but due to my desire to practice in the Grand Rapids area upon passing the Bar.  I also serve as the Chief Operations Officer for the Corporal Christopher Kelly Willis Foundation (the “Willis Foundation”), which my brothers and I established in honor of our deceased brother.  The Willis Foundation provides college scholarships to children who have lost a parent (or whose parent has been permanently disabled) in a combat zone.  To date, we have awarded 14 scholarships to Michigan children, many from the Grand Rapids area.  It is our belief that these children have also given the ultimate sacrifice.

Career goals: I am fully dedicated to continuing my education, fulfilling my military obligations, ensuring that children of our fallen heroes are taken care of through the Willis Foundation, and being the absolute best mother I can be to my son, Tyson (6 years old).  As an attorney, I hope to make strides in the legal profession for the benefit of Veterans in the Southwest Michigan area.  I also hope to assist my brothers and sisters in arms on a pro bono basis, dedicating at least 10% of my practice to the men and women who have served our country honorably.  My current plans are to extern in the Van Buren County Prosecutor’s Office (the very first place my father worked out of law school), and then join my two brothers at Willis Law (the law firm they established in 2004).

Tell us a little about you: As a single mother, attending law school, working as a law clerk, serving in the military and volunteering for the Willis Foundation, I rarely have free time!  However, when I do have some time to spare, I enjoy spending time with my son, Tyson, my parents, my siblings and my nieces and nephews.  Other hobbies include shooting/marksmanship, hunting, bass fishing, softball leagues, reading, and traveling.  I am a member of the Kalamazoo Rod and Gun Club, Ducks Unlimited and the National Rifle Association.

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