Nichols Law Firm http://www.nicholslawyers.com RSS feeds for Nichols Law Firm 60 http://www.nicholslawyers.com/In-The-News/ID/3224/A-Nichols-Law-Firm-Client-Gets-his-Family-Back-in-An-Amazing-Court-of-Appeals-Case#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3224 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3224&PortalID=4&TabID=175 A Nichols Law Firm Client Gets his Family Back in An Amazing Court of Appeals Case http://www.nicholslawyers.com/In-The-News/ID/3224/A-Nichols-Law-Firm-Client-Gets-his-Family-Back-in-An-Amazing-Court-of-Appeals-Case Imagine that you are in a relationship with a woman. You are really in love. You think she loves you, too. Maybe she does indeed love you. Except, she has a relationship on the "side."She struggles with drugs. Her struggle is your struggle. You help her fight to beat the demons. She is fighting hard and she seems to be mostly winning the fight to stay clean. Then you find out that she is pregnant. You are as happy as you've ever been. You're about to be parents. You even decide to name the child after you - he is going to be your namesake. Can life get any better?Then, the love of your life loses her struggle with the demon that is drugs. You are left to take care of your namesake all by yourself. As if it cannot get any worse - here it comes: you find out that the mother of your child was sneaking off to be with someone else - and now he is claiming to be the father of YOUR child. He is threatening a lawsuit. Could this nightmare just end, already? Pinch me so that I can wake up.The nightmare does not end - in the summer of 2023, a trial court in Ingham County ruled that the child was the biological son of "the other guy." We did not contest that fact because DNA evidence was irrefutable. So, who would fight like this for a son, who is not even his DNA? A pretty amazing guy, who the Nichols Law Firm is proud to call "client." The trial court rules in favor of "the other guy" after 2 days of trial testimony and evidence. It was a devastating blow for all of us in the Nichols Law Firm family, but we were not done. We referred our heroic client to the Speaker Law Firm, which is an appellate specialist. On January 18, 2024, the Court of Appeals issued its opinion in "Taylor v Brown," completely vindicating our position AND ordering the trial court to immediately issue an Order to return the child to his father.The trial was about whether or not the Plaintiff, Taylor, could properly get the court to revoke the affidavit of parentage signed by our client. An affidavit of parentage is a sworn statement that is signed by someone that has the effect of making that person the legal father of a child who is born out of wedlock. When a child is born to a married couple, the child is lawfully presumed to be the child of the married couple.A ROPA cause of action is complicated, with specific statutory sections and requirements that must be met. In this case, we filed motions to dismiss the initial complaint and to strike the affidavit. The trial court allowed the "other guy" to amend his affidavit and the Court of Appeals held that the amended affidavit did not meet any of the "prongs," such as a mistake of fact or fraud to allow of the Affidavit of Parentage that was signed by our heroic client to be withdrawn: "the trial court legally erred in failing to grant defendant's motion to dismiss the complaint,"Taylor v. Brown, No. 366736, 2024 WL 207022, at *7 (Mich. Ct. App. Jan. 18, 2024).We recorded a podcast about this amazing case a week after the Court of Appeals issued its ruling and the child was returned. You can hear that story in vivid detail elsewhere on our website. Remember: never surrender - especially when you are committed to results. mnichols@nicholslaw.net Tue, 20 Feb 2024 02:36:00 GMT f1397696-738c-4295-afcd-943feb885714:3224 http://www.nicholslawyers.com/In-The-News/ID/3219/The-Oxford-School-Shooter-Case--The-Next-Turn#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3219 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3219&PortalID=4&TabID=175 The Oxford School Shooter Case - The Next Turn http://www.nicholslawyers.com/In-The-News/ID/3219/The-Oxford-School-Shooter-Case--The-Next-Turn It was an interesting moment in the sentencing hearing for Ethan Crumbley. Crumbley is the shooter in the Oxford school massacre on November 30, 2021. As reported by the Detroit Free Press, Crumbley made the following statement to Judge Kwame Rowe during his sentencing hearing:"We are all here because of me today, what I did ... because of what I chose to do. I could not stop myself," Crumbley said, adding: "My parents did not know what I planned to do, they are not at fault.""THEY ARE NOT AT FAULT." In theory, Crumbley was supposed to cooperate with prosecutors if he pleaded guilty and would get the opportunity to ask for a sentence that included parole - in other words a term of years. It almost seems as if he resigned himself to a life without parole sentence and he literally asked the judge to give the survivors "what they want" and lock him up without the key.The statement that he made appears to absolve his parents of any blame for his conduct. His parents are charged with involuntary manslaughter, each one faces a separate trial. Will the prosecutors in those trials call the shooter to testify against his mom and his dad? Will either defense attorney call the killer to testify on behalf of his respective parent? These are now questions worth pondering if you are following the Oxford School prosecutions.The charging theory against the parents is novel: that they engaged in decision-making that was grossly negligent parenting and that they knew or should have known that the decisions that they made either created or increased the danger that their son would commit the murders. It seems pretty likely that one or both of the parents are going to go to trial - this is a trial that will be followed around the world because it is the first time that the parents of a mass school shooter have been charged in the crimes.Of note: Judge Kwame Rowe is a graduate of the Cooley Law School in Lansing and one of the younger and more recent appointments by Governor Whitmer - August 2021. Judge Rowe appeared to eschew some of the judicial grandstanding that has occurred in highly-publicized sentencing hearings in the United States over the last several years. mnichols@nicholslaw.net Mon, 11 Dec 2023 01:43:00 GMT f1397696-738c-4295-afcd-943feb885714:3219 http://www.nicholslawyers.com/In-The-News/ID/3218/The-Constitution-Protects-You--Why-Would-the-Court-of-Appeals-Not-Exclude-Evidence-When-Someones-Rights-Are-Violated-by-Law-Enforcement#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3218 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3218&PortalID=4&TabID=175 The Constitution Protects You - Why Would the Court of Appeals Not Exclude Evidence When Someone's Rights Are Violated by Law Enforcement http://www.nicholslawyers.com/In-The-News/ID/3218/The-Constitution-Protects-You--Why-Would-the-Court-of-Appeals-Not-Exclude-Evidence-When-Someones-Rights-Are-Violated-by-Law-Enforcement The "Exclusionary Rule" is an important concept in Constitutional Law that is applied almost exclusively in criminal cases. What it means is this: if law enforcement violates the rights of an individual either in how the contact/detention was made or how evidence was gathered, the evidence cannot be used to prosecute that person whose rights were violated.The rule is pretty straightforward: you get evidence through improper tactics or techniques -- and that evidence cannot be used at a subsequent trial unless the connection between the bad act and the evidence getting into the hands of the prosecutor is so remote that it would not matter whether the constitution was violated.However, in a case that will not seem to go away, "People v Lucynski" - the Court of Appeals ruled that the exclusionary rule did not apply EVEN THOUGH the officer who arrested Mr. Lucynski mis-applied the traffic laws in order to make contact with him and detain him. The COA said that there was no evidence that the officer "meant" or "intentionally" violated Mr. Lucynski's right to be free of an unreasonable seizure.I read that and just sort of scratched my head. Fortunately, Mr. Lucynski's attorney kept up the battle. He appealed that ruling to the Michigan Supreme Court. The MSC will hear arguments, probably this year, on whether to grant leave or in other words, allow the Lucynski team to appeal that puzzling ruling by the lower court of appeal.It seems pretty straightforward - there is no requirement or "free pass" to law enforcement if the citizen does not prove that the officer intended to violate the constitution. mnichols@nicholslaw.net Sun, 22 Oct 2023 14:48:00 GMT f1397696-738c-4295-afcd-943feb885714:3218 http://www.nicholslawyers.com/In-The-News/ID/3217/Lets-Stop-the-Hand-Wringing-over-the-Whitmer-Terrorist-Plot-Trial-in-Northern-Michigan#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3217 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3217&PortalID=4&TabID=175 Let's Stop the Hand-Wringing over the Whitmer Terrorist Plot Trial in Northern Michigan http://www.nicholslawyers.com/In-The-News/ID/3217/Lets-Stop-the-Hand-Wringing-over-the-Whitmer-Terrorist-Plot-Trial-in-Northern-Michigan When the jury returned not guilty verdicts in Antrim County for the last 3 individuals to be put on trial for the so-called “Whitmer Plot” – you would have thought that Benedict Arnold was pardoned by President Washington.Attorney General Dana Nessel put out a press release. The Governor herself put out a press release “we hope that this does not encourage right-wing extremists to make threats against public officials” was the theme.First of all – polarizing people who do not see the world or politics in the same way only further entrenches the other side. It does nothing to bring people together. In addition, there is a long-held legal concept that goes back to the 1st year of law school: “mere presence is insufficient” – in other words just because you are at the location of a crime you are not necessarily guilty.If you followed the trial at all, you will note that one of the defense attorneys never even asked a question on cross examination of any of the prosecution witnesses. The strategy was simple: “my guy is only here because he was charged with a crime, but he did not do anything wrong.”Eric Molitor, William Null and Michael Null were found not guilty after a week-long trial on September 15, 2023 in Antrim County. They were accused of providing material support to terrorist activities (kidnapping Governor Whitmer). The defense was pretty simple – “we didn’t like her; we opposed her politics; we hung out with guys who talked about kidnapping her – but we did nothing to help.”These not guilty verdicts are only a reflection of the successful defense of “mere presence is insufficient” – they are not an indictment on the governor's policies and politics and they are not an endorsement of terrorism. I really wish that the Attorney General had just said “we respect the jury’s verdict and thank them for their service” instead of making comments in a press release that made them seem like a bunch of northern Michigan right-wing wackos.JoAnne Huls, Whitmer's chief of staff, also issued a statement Friday, September 15, 2023:“Today’s verdict is disappointing," it read. “A not guilty verdict on the plot to kidnap and kill Governor Whitmer in hopes of starting a civil war will further encourage and embolden radical extremists trying to sow discord and harm public officials or law enforcement."People in Northern Michigan deserve better. The system deserves better. Mere presence is insufficient to establish criminal culpability. mnichols@nicholslaw.net Sun, 01 Oct 2023 02:55:00 GMT f1397696-738c-4295-afcd-943feb885714:3217 http://www.nicholslawyers.com/In-The-News/ID/3216/The-Jury-is-Important-Part-II--Court-of-Appeals-Issues-a-Published-Case-on-The-Inference#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3216 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3216&PortalID=4&TabID=175 The Jury is Important Part II - Court of Appeals Issues a Published Case on "The Inference" http://www.nicholslawyers.com/In-The-News/ID/3216/The-Jury-is-Important-Part-II--Court-of-Appeals-Issues-a-Published-Case-on-The-Inference Michigan has a somewhat unique law that is, in essence, a statute that creates a rule of evidence. It is often called "the inference." The law says the jury may infer that the chemical test that is administered to the defendant reflects what the defendant's BAC was at the time that he/she was operating the motor vehicle.Ok - so what if a blood draw shows that the person was appreciably BELOW the legal limit? The Michigan Court of Appeals recently addressed that in the published case "People v Urbanski." In this case from Allegan County (think Grand Haven in Southwest Michigan), the accused was pulled over and admitted to slamming 3 "maybe 4" beers at around midnight. It was about 2:30 in the morning that he was stopped by a sheriff deputy.The deputy arrested Mr. Urbanski and conducted a blood draw. The result? 0.064 grams of etoh (alcohol) per 100 milliliters of blood. So, that is good, right?At trial, the assistant prosecutor went all in. Without calling an expert witness on retrograde extrapolation, the assistant prosecutor argued to the jury that Mr. Urbanski's BAC was HIGHER at the time of driving than when his blood was drawn. The attorney for the accused never objected. On top of that, the defense attorney never asked for a STANDARD instruction on "the inference." I have no idea if the assistant prosecutor knew better and just never requested the standard instruction (it is identified as Mi Standard Criminal Jury Instruction 15.5(6)). Mr. Urbanski sure was prejudiced by it - because the jury was left with no instruction from the court that he was driving with a BAC BELOW the legal limit.The Michigan Court of Appeals issued a published opinion on August 31st, 2023 that reversed the conviction and ordered a new trial. The grounds were ineffective assistance of counsel. On top of all that, the trial court sentenced Mr. Urbanski as a habitual offender. The problem with that is that OWI is not a felony when there is no more than one prior conviction.The lesson? Make sure that your attorney knows both the science and the law - or reaches out to resources like the Michigan OWI Manual by West Publishing before you go into battle with him or her. Justice was definitely not served in Allegan County in this case. mnichols@nicholslaw.net Fri, 01 Sep 2023 14:23:00 GMT f1397696-738c-4295-afcd-943feb885714:3216 http://www.nicholslawyers.com/In-The-News/ID/3215/The-Jury-is-Important--Just-ask-the-Michigan-Supreme-Court#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3215 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3215&PortalID=4&TabID=175 The Jury is Important - Just ask the Michigan Supreme Court http://www.nicholslawyers.com/In-The-News/ID/3215/The-Jury-is-Important--Just-ask-the-Michigan-Supreme-Court Imagine yourself in a position in which you never thought that you would find yourself – you are trying to decide which 6 – or in the case of a felony 12 people will decide if the facts presented by the government prove you guilty beyond a reasonable doubt. Imagine yourself working with a lawyer, a person who you have gotten to know fairly well, but not as well as some of the most important people who may be in your life. This lawyer says to you “hey – so this judge: his deal is to only let us size up the jury panel and if a new prospective juror replaces someone – we can only strike him or her and not use a strike just because we do not like the make-up of the panel as a decision-making body.”Crazy, right?First a little legal jargon explained: a “peremptory” challenge or strike is a challenge to a prospective juror during the voir dire process for absolutely no reason so long as it is not an illegal reason, such as gender or race. “Voir dire” is the term for the process of the trial during which prospective jurors are examined for their background or beliefs including life experiences.In “People v Yarborough” – the Michigan Supreme Court had a chance to right some wrongs. The law seemed to support that, if a trial court judge (in other words, your judge on your case who is refereeing the “game” as it were) prohibited attorneys from using all of the allotted peremptory challenges, then that is what we call an error of the highest magnitude. It is called “reversible error.”In Yarborough, the trial court judge prohibited the attorney for Mr. Yarborough from using peremptory strikes for jurors who had already – for lack of a better way of putting it – survived a round of strikes already. The problem with this boundary is that when you try to read people as a group, whether it is 12 people for a felony in the State of Michigan … or 6 people for a misdemeanor … it is important to understand the psychology of group dynamics. Here, Mr. Yarborough’s attorney wanted to strike a juror on whom he had “passed” in a prior round of opportunities to strike that same juror.Justice Bernstein wrote the majority opinion in the case, stating that for over 100 years, violating an accused’s right to have his fate decided by the jury of his choosing was a constitutional violation that required automatic reversal: “Michigan caselaw has recognized that the appropriate remedy for the erroneous denial of a peremptory challenge is automatic reversal even though this right is not constitutionally mandated,” (Slip Op. p 12).The opinion succinctly nails the problem with trial judges imposing limits on the ability to strike a prospective juror based on the make-up of the jury:“Defendant’s ability to issue peremptory challenges throughout the voir dire process was limited from the outset by the trial court’s policy forbidding such challenges to previously seated prospective jurors. This necessarily limited defendant’s ability to strategically consider the final composition of the jury,” (Slip Op. p 13).This ruling really is a critical one, because it creates a uniform rule that allows the attorneys to “pass” on a peremptory challenge based on the dynamic of the personalities in the jury box and then use a peremptory later if that make-up changes and a prospective juror who might have been “marginal” for the theory of the case should be stricken if a different prospective juror gets in the box. mnichols@nicholslaw.net Sat, 19 Aug 2023 19:07:00 GMT f1397696-738c-4295-afcd-943feb885714:3215 http://www.nicholslawyers.com/In-The-News/ID/3210/All-Hands-on-Deck-The-Magistrate-Just-Denied-Bond--What-Next#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3210 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3210&PortalID=4&TabID=175 All Hands on Deck! The Magistrate Just Denied Bond - What Next? http://www.nicholslawyers.com/In-The-News/ID/3210/All-Hands-on-Deck-The-Magistrate-Just-Denied-Bond--What-Next You are in the booking area of the jail waiting for the magistrate to conduct your arraignment. In Michigan, the arraignment is the first step in a criminal case. It is the phase during which the magistrate or district court judge announces the charges against you and then sets the “bond.” Sometimes, the district court will set a “cash” bond and sometimes the bond will include conditions. A “Personal Recognizance” bond is favored now in Michigan law. In very rare cases, the district court can deny a bond completely – but those cases are rare and only in certain types of charges and situations is the district court (whether it is the magistrate or the district court judge) allowed to deny the accused citizen a bond. A trend in Michigan lately has been for the district court judges to assign the magistrates to do all of the arraignments but then not give the magistrate any authority to grant any request at all from the attorney for the accused person. This manifested in a manner last May that launched the Nichols Law Firm in to attack mode when a client was denied a bond completely on a charge of attempted home invasion. So – MCR 6.106; the Michigan Constitution and the Code of Criminal procedure (specifically MCL 774.1, et seq) set forth specific rules and procedures for setting bonds in cases and also appealing the ruling of the District Court. In our nearly-tragic situation, our client, a woman with 2 kids going through a divorce, was charged with a felony that is punishable by a maximum possible penalty of 2.5 years. The magistrate DENIED her a bond completely. When our attorney pleaded with the magistrate that a bond was presumed to be appropriate, the magistrate said “this is what the judge said” – or words to that effect. With a bond dispute, the attorney can immediately appeal to the court that has appellate jurisdiction to the court that set the bond ruling that “aggrieved” the client. That means the circuit court when we are talking about the 1st appearance on a felony case. Now, this is a Friday and we are damn sure not about to let our client sit in the county jail over Mother’s Day. The bond rules, statutes and caselaw is not so archaic and with our experience, we have been down this road before so the research was not terribly difficult. We got our appeal filed by Friday late morning and got before a Circuit Court judge that afternoon. The Circuit Court Judge did the right thing and our accused citizen was out on a tether for Mother’s Day Weekend. Everybody – and I mean everybody – pitched in. Sometimes, you just call all hands on deck and get the job done to make sure that the right thing is done in the case. mnichols@nicholslaw.net Mon, 17 Jul 2023 21:59:00 GMT f1397696-738c-4295-afcd-943feb885714:3210 http://www.nicholslawyers.com/In-The-News/ID/3209/Another-Gap-for-the-Courts-to-Fill-A-Tragic-Case-and-Michigans-No-Fault-Auto-Insurance-System#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3209 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3209&PortalID=4&TabID=175 "Another Gap for the Courts to Fill" A Tragic Case and Michigan's No-Fault Auto Insurance System http://www.nicholslawyers.com/In-The-News/ID/3209/Another-Gap-for-the-Courts-to-Fill-A-Tragic-Case-and-Michigans-No-Fault-Auto-Insurance-System Your life is changed forever in a car crash in which you are left a quadriplegic. You wake up the next day – the night before was your first night since the unexpected catastrophe that means that you will never wake up the same ever again. You cannot walk on your own, you cannot move your arms … and it will never be the same … ever.You need attendant care forever. You will not be able to care for yourself. The bills will pile up. The anxiety starts to creep up. The last thing is certainly not for the insurance company on which you rely to pay your claims to go belly up – but that is exactly what happened to Justin Childers. The saga of the insurance companies who were supposed to be there for him but fought to slough the financial responsibility on to each other ended up in a published (i.e. binding) opinion from the Michigan Court of Appeals last fall (September 15, 2022). The case is “Childers and the Michigan Property and Casualty Guaranty Association v Progressive Marathon Insurance.”You need a Venn diagram to understand who was arguing about what but an important concept to understand is priority of insurance providers. Mr. Childers was a passenger in a vehicle that was involved in an accident. The driver of the vehicle was uninsured. Because of the status of the driver as uninsured, the Michigan Property and Casualty Guaranty Association (MPCGA) was left to pay benefits for Mr. Childers. The MPCGA, as the insurance provider of “last resort” had the responsibility to help find insurance coverage for Mr. Childers medical bills and bills for his daily care – the term for the day-to-day needs of a person who cannot take complete care of himself is attendant care. MPCGA is created by statute to provide benefits coverage for situations just like this one until and unless another “priority provider” can be found. What we are talking about are Personal Injury Protection (PIP) benefits, which are specifically defined under Michigan law as the type of benefits offered in an auto accident situation to basically take care of the “life” needs of the injured party or parties as well as their medical care.An insurance company that was next in line went insolvent. It was declared insolvent by the State of Michigan … and yes that is a thing. Therefore, that insurance company, that was connected to the parties because it provided a homeowners policy to Mr. Childers’ mother, was off the hook. Then, here comes the Progressive Marathon Insurance Company – which provided a policy for auto insurance coverage for the brother of the driver of the vehicle in which Mr. Childers was riding. Now the “games” really begin.When Progressive was put on notice they gave a big fat “nuh uh” to the MPCGA. Progressive claimed that there was an exclusion that applied so that the driver of the vehicle could not turn to them for coverage. Progressive also claimed that the legal claim was made too late – we call this the “statute of limitations” defense.Because of the extent of Mr. Childers’ injuries, he was declared mentally incompetent and his mom was declared his guardian. Mr. Childers’ mother sued under a term that we call “Next Friend of” in conjunction with the MPCGA to force Progressive to pay the claim. By the way, this lawsuit was brought in 2013 and it took 9 years for this particular legal issue to finally reach its resolution by the Court of Appeals.Judge Christopher Yates wrote the opinion for the court. The court spent significant time analyzing the statute of limitations issue, siding ultimately with the plaintiffs, Mr. Childers and the MPCGA. However, the meat of the dispute seemed to be whether the defendant, Progressive, was considered a priority insurer, despite arguing 3 policy exclusions with the contract that it had to insure the driver’s brother. An important point that Judge Yates made is that the policy behind the no-fault insurance scheme and requirement that people purchase insurance for vehicles, is to insure people not automobiles. Here, the court found that the driver was the relative (sister) of the policy holder, that she lived with him prior to the accident and that she also suffered injuries. Even though her injuries did not require hospitalization or much by way of treatment, there was no “qualification” for the seriousness of the injury. When we are confronted with people who suffer tragedies and it seems as if an unfair outcome is about to result, it becomes a Gordian knot. The problem of ancient heritage that seems so complicated that the only solution is to slice the knot off rather than untie it. Sometimes, we have to just untie it. Either way, the point is to achieve justice despite the efforts of the insurance companies. mnichols@nicholslaw.net Thu, 29 Jun 2023 16:21:00 GMT f1397696-738c-4295-afcd-943feb885714:3209 http://www.nicholslawyers.com/In-The-News/ID/3208/How-We-Practice-Leadership-In-Educating-Other-Lawyers-on-the-New-Evidential-Breath-Alcohol-Test-Device#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3208 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3208&PortalID=4&TabID=175 How We Practice Leadership In Educating Other Lawyers on the "New" Evidential Breath Alcohol Test Device http://www.nicholslawyers.com/In-The-News/ID/3208/How-We-Practice-Leadership-In-Educating-Other-Lawyers-on-the-New-Evidential-Breath-Alcohol-Test-Device The State of Michigan Department of State Police (MSP) decided to switch to a new device for sampling human breath in drunk driving investigations. The new device, the “Intoxilyzer 9000” was purchased through a multi-million dollar contract with CMI, Inc., based in Owensboro, Kentucky. Over 50 lawyers made the trip to the Michigan State University (MSU) law school from all corners of the upper and lower peninsulas. The Nichols Law Firm put on a training for lawyers from across the state to get a look under the hood at this new device. The training featured experts who educated lawyers as well as Judge Michael Clarizio, of the 65A District Court in St. Johns (Clinton County). Also presenting were representatives from the Michigan State Police, Jeffrey Nye, who is head of the Forensic Science Division (FSD), W. Mark Fondren, technical leader of the breath alcohol unit for the MSP, and Lt. Ryan Lemison, who is deputy director of the MSP FSD. There are some major differences between the instrument that was replaced, the Datamaster DMT and the Intoxilyzer 9000. However, Mike Nichols states: “a big difference is that the Intox 9000 appears to continue to measure a breath sample even after all of the minimum requirements have been fulfilled.” Nichols, author of books and treatises on OWI by drugs and alcohol adds that “another difference is that the minimum length of blow that is required appears to be 5 seconds – many times we see clients blow for well over 10 seconds and sometimes almost 20 seconds. Imagine how inflated the Breath Alcohol estimates might be compared to the true value of the person’s bodily alcohol content.” Many of the team members at the NLF get credit for their roles in helping make the Intox 9000 training happen. They include Attorney Chris Wickman Attorney Jackee Moss Attorney Aaron Martinez Attorney Wendy Schiller-Nichols Kelly Thomison Cindy Kramer Parker Myles Julian Moses It is important to remember that an evidential breath test is an indirect measurement of what is in the subject’s blood – it is not a direct measurement of a bodily alcohol content. mnichols@nicholslaw.net Fri, 02 Jun 2023 23:27:00 GMT f1397696-738c-4295-afcd-943feb885714:3208 http://www.nicholslawyers.com/In-The-News/ID/3206/Wendy-Schiller-Nichols-is-Rocking-It-in-2023-Ready-to-Keep-It-Going#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3206 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3206&PortalID=4&TabID=175 Wendy Schiller-Nichols is "Rocking It" in 2023; Ready to Keep It Going http://www.nicholslawyers.com/In-The-News/ID/3206/Wendy-Schiller-Nichols-is-Rocking-It-in-2023-Ready-to-Keep-It-Going A woman who lost an arm in an ATV accident; a tragic dog-bite case; and more.Wendy Schiller-Nichols has 2023 by the tail and she keeps moving forward. Wendy recently attended the Institute for Continuing Legal Education (ICLE) No-Fault Summit and reflected on cases that she is resolving and how important her clients are to her. Wendy is not resting on her laurels even though she already generated $400,000.00 in recoveries in the 1st quarter of the year alone. One of the cases that Wendy is proud of, involved a woman in an ATV who lost her arm. Other lawyers thought the case was too tough because the woman's husband, who was driving the ATV, was charged and convicted of Operating While Intoxicated (OWI) causing serious injury (to her). Wendy says: "when I looked at the pictures, they told a different story. I thought this person needed help and it would just take some hard work." Eventually, the insurance company relented. Another recent case involves a terrible dog-bite attack against a young girl. Wendy knew that when she met with the girl and her mom, that the case required someone with experience in medical records and a willingness to take the time to go through them and tell the story. Wendy says "when I met the family and the little girl, my heart broke for them and I knew I needed to be there for them and make a difference." Wendy still took the time, even with 20 years of experience, to attend the state-wide No-Fault Summit for 2023 on April 27-28, organized by ICLE. This was an opportunity for lawyers, like Wendy who are on the leading edge to develop new strategies to litigate cases where real people are victims of the negligence of others - especially situations in which the insurance companies make it worse by stone-walling claims. Making the time to juggle her responsibilities as a mom and managing partner of the Nichols Law Firm is a great example of our dedication and how we are Committed to Results. mnichols@nicholslaw.net Sat, 29 Apr 2023 21:47:00 GMT f1397696-738c-4295-afcd-943feb885714:3206 http://www.nicholslawyers.com/In-The-News/ID/3205/Charges-Dropped-Against-Hillsdale-Area-Man-in-Tragic-Boating-Accident#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3205 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3205&PortalID=4&TabID=175 Charges Dropped Against Hillsdale-Area Man in Tragic Boating Accident http://www.nicholslawyers.com/In-The-News/ID/3205/Charges-Dropped-Against-Hillsdale-Area-Man-in-Tragic-Boating-Accident (Hillsdale, MI) - A criminal charge of negligent homicide in the operation of a boat has been dismissed by a Hillsdale judge. The charge arose from a tragic boating accident at Camp Michindoh in Hillsdale County on July 27, 2022 in which 11-year old Lucia Salazar was tragically killed when the propeller of a boat operated by Matthew Kovacic (Ko-VA-sik) struck her. He was charged with a “high-court” misdemeanor in Hillsdale County and was represented by Chris Wickman, Aaron Martinez and Mike Nichols of the Nichols Law Firm in East Lansing.“We grieve for the family of young Ms. Salazar and find this to be an unspeakable tragedy, but it is exactly the definition of an accident,” says attorney Mike Nichols. He adds that “the evidence showed that Mr. Kovacic and a spotter were operating a small boat which towed an inflatable ‘banana boat,’ in which several campers were riding. Everyone was wearing helmets and life vests as recommended and there was no evidence that Matt was driving the boat in a careless manner or at a speed that was too fast – he simply could not see Lucia when she slid off the boat, along with 3 other campers. He was the first person to jump into action to attempt to render aid to the young woman, and he continues to grieve as well.”The key testimony to support Judge Sara Lisznyai’s decision to dismiss the case came from one of the eyewitness accounts. On cross examination during a preliminary hearing at the District Court, the witness testified to attorney Chris Wickman that his vantage point of the accident was distanced and more elevated. The judge said that the evidence was insufficient to say if Mr. Kovacic had a vantage point in which the young girl could have been seen. Attorney Aaron Martinez prepared and filed a motion and brief to dismiss the case, and presented arguments before Judge Lisznyai on Monday, April 3, 2023.Mr. Kovacic no longer works for Camp Michindoh and moved away from the area, along with his wife while the case was pending. Mr. Kovacic says he is grateful for the outpouring of support from his friends and family while this very difficult ordeal was ongoing. mnichols@nicholslaw.net Tue, 04 Apr 2023 10:49:00 GMT f1397696-738c-4295-afcd-943feb885714:3205 http://www.nicholslawyers.com/In-The-News/ID/3203/Form-over-Substance-Jackee-Moss-Earns-a-Court-of-Appeals-Win-on-a-Child-Custody-Matter#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3203 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3203&PortalID=4&TabID=175 Form over Substance: Jackee Moss Earns a Court of Appeals Win on a Child Custody Matter http://www.nicholslawyers.com/In-The-News/ID/3203/Form-over-Substance-Jackee-Moss-Earns-a-Court-of-Appeals-Win-on-a-Child-Custody-Matter A trial court judge in Shiawassee County misinterpreted an important court rule on deadlines to object to friend of the court recommendations. Jackee Moss took the matter to the Court of Appeals and, thanks to his well-written and persuasive brief, won a reversal within a week.The client, who is involved in a complicated multi-state custody dispute, wanted to move back to Michigan with his son. Michigan is the state where the case originated and that maintains jurisdiction. During the referee hearing, it was proven that the mother had lied to CPS in an apparent effort to strip the father of his parental rights. Despite this atrocious behavior by the mom, the referee found that the client did not meet his burden of proof necessary to change domicile, to which an objection was filed.The judge had ruled that an objection filed by the NLF on behalf of a client was not timely because it was not received by a certain date. The problem is – that is not what the Michigan Rules of Court require. Jackee appealed to the Michigan Court of Appeals.Mr. Moss’s brief was so persuasive that the presiding judge, who is currently the chief judge of the court of appeals, indicated that the entire panel agreed with him.The client– a devoted father with primary physical custody and just a good, hard-working man – gets to keep his foot in the door to keep fighting for his kids to come back to Michigan with him. mnichols@nicholslaw.net Thu, 23 Feb 2023 22:32:00 GMT f1397696-738c-4295-afcd-943feb885714:3203 http://www.nicholslawyers.com/In-The-News/ID/3201/An-Unpublished-but-Critical-Case-in-Driver-License-Restoration-for-Medical-Marijuana-Users#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3201 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3201&PortalID=4&TabID=175 An Unpublished but Critical Case in Driver License Restoration for Medical Marijuana Users http://www.nicholslawyers.com/In-The-News/ID/3201/An-Unpublished-but-Critical-Case-in-Driver-License-Restoration-for-Medical-Marijuana-Users Under Michigan’s Motor Vehicle Code, a “habitual offender” is someone who receives two convictions for intoxicated driving within seven years. MCL 257.303. This past week, a panel of the Michigan Court of Appeals sided with a habitual offender who was denied the restoration of his driver’s license by the Michigan Secretary of State. The case of Morrow v Secretary of State (COA Docket: 358508) concerned the Petitioner’s request to have his license restored. He had been convicted in 2004 and 2007 of either impaired or intoxicated driving, with various interlock violations throughout the years. In 2019, the Petitioner sought to restore his license. In such an administrative hearing, the Petitioner has the burden of proving that: • That the petitioner’s alcohol or substance abuse problems, if any are under control and likely to remain under control. • That the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk; • That the risk of the petitioner repeating the act of operating a motor vehicle while impaired by, or under the influence of, alcohol or controlled substances or a combination of alcohol and a controlled substance or repeating any other offense listed in section 303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act is a low or minimal risk. • That the petitioner has the ability and motivation to drive safely and within the law.A hearing officer from the Secretary of State denied the Petitioner’s request in 2019, and in 2021, he attempted to restore his license once again. In 2021, the Petitioner testified that he was 39 years old and had two convictions for alcohol-related driving crimes. The Court of Appeals noted that he presented a favorable substance abuse evaluation and the results of several negative alcohol and drug tests taken over a period of time. While he admitted to using marijuana as a teenager, he stated he had been sober from alcohol and marijuana for 10 years. He noted his active participation in Alcoholics Anonymous and support from family and friends motivates his desire to remain sober. Despite all of these positive facts weighing in his favor, the Secretary of State denied the Petitioner’s request to restore his license. The hearing officer based his denial on the fact that the Petitioner had been guilty of delivery of marijuana to an undercover officer while he operated a dispensary prior to legalization in 2018. The Hearing Officer demanded that the Petitioner provide records from the state’s medical marijuana agency as well as producing a document known as a Pre-Sentence Investigation Report (PSIR) – a report prepared by courts ahead of sentencing a defendant. This report was also requested by the 2019 Hearing Officer. The Petitioner appealed to the Circuit Court on the basis that he had demonstrated what was required of him under the law, however the Circuit Court sided with the Secretary of State and upheld the denial of the restoration. The Michigan Court of Appeals reversed the Circuit Court and the Hearing Officer by conditioning the Petitioner’s request for license restoration on producing the PSIRs and his medical marijuana card. The Court of Appeals noted that because Michigan law prohibits the disclosure of a PSIR, not producing one cannot be the basis of denying restoration of a driver’s license. Further, and perhaps most importantly, the Court of Appeals said that the Michigan Medical Marihuana Act requires that Petitioner’s medical marijuana card, regardless of its contents, cannot be used to deny him an opportunity to restore his license. While this opinion is unpublished, it provides a clear legal road map to arguing future issues involving denial of a license restoration. If your Michigan driver’s license has been revoked, you should contact a law firm that is experienced in handling those matters. mnichols@nicholslaw.net Sun, 01 Jan 2023 18:56:00 GMT f1397696-738c-4295-afcd-943feb885714:3201 http://www.nicholslawyers.com/In-The-News/ID/3196/Michigans-Court-of-Appeals-Reverses-20-Years-of-Precedent--Because-it-Stunk#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3196 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3196&PortalID=4&TabID=175 Michigan's Court of Appeals Reverses 20 Years of Precedent -- Because it "Stunk" http://www.nicholslawyers.com/In-The-News/ID/3196/Michigans-Court-of-Appeals-Reverses-20-Years-of-Precedent--Because-it-Stunk It is the case that we have been waiting for since the Michigan Medical Marijuana Act (MMMA) took effect in 2009: the Michigan Court of Appeals rules that the odor of marijuana – standing alone – is not enough to seize passengers inside a vehicle and order them out of the vehicle in order to conduct a search. The case is People v Armstrong (No. 360693; November 22, 2022).The case started when officers drove by a parked vehicle in which Mr. Armstrong was a passenger. The officers made contact with the driver and Mr. Armstrong and, claiming that they smelled marijuana, the officers ordered them out of the vehicle and then conducted a search – during which they found a gun that led to felony weapons charges against Mr. Armstrong since the gun was underneath his seat. There was some debate about whether the officers had initially observed the gun in “plain view” or if the illegal search was the predicate act to lead them to the gun. The attorneys on both sides declined to hold an actual evidentiary hearing so the only information the court had to go on was the body worn camera footage of the officers.The 8-page opinion was authored by Judge Chris Yates, one of the newer appointees from the circuit court bench in Kent County and it is a bold one. There is a long-standing case that has been the nemesis of the 4th Amendment called People v Kazmierczak (461 Mich 411 (2000)) that held that the “very strong smell of marijuana emanating from [a] vehicle … furnished “probable cause to search for marijuana,” (Kazmierczak at 421-422). This case remained the controlling precedent even though 8 years later, we legalized marijuana for medicinal use through Proposition 1, which was a voter-initiated law. 10 years later, Michigan made marijuana legal for recreational use as well, again through the voter-initiated process, when the Michigan Recreation and Taxation of Marijuana Act (MRTMA) was passed.However, the Court of Appeals hit the nail on the head: Thus, analysis of search-and-seizure law is now much more complicated and nuanced than it was when marijuana was unlawful in all circumstances in Michigan. Arnold, Criminal Law Issues After Passage of the MRTMA: Uncertainty Remains, 100 Mich B J 26, 29-30 (June 2021). The court went on to say:“Since the passage of the MRTMA, we have not established whether, by itself, the smell of marijuana furnishes probable cause to approach or seize a person without a warrant. Still, recent cases decided before the passage of the MRTMA help to distinguish defendant’s case and establish the need for probable cause beyond the smell of marijuana alone.”And the court answered with a resounding “no.” The court said:“Passage of the MRTMA decriminalized possession and use of marijuana in Michigan. We conclude that this action changed the law concerning possession and use of marijuana, superseding otherwise-binding decisions that the smell of marijuana, without more, provides probable cause to search for marijuana. Therefore, in light of the MRTMA, we conclude that Kazmierczak no longer governs our analysis of whether the smell of marijuana, standing alone, constitutes probable cause to search for that substance. See id. at 45-46 n 11. As a result, we must chart our own path across the new legal landscape created by the MRTMA.”What is really impressive about the court’s opinion is that in the preceding paragraph, the court explains why the prior precedent in Kazmierczak does not control any longer. It is an interesting case because the issue was whether to suppress a gun that the officers found after seizing Mr. Armstrong and the driver of the car. At the end of the day, Michigan law has changed for the better and your right to be free from unreasonable seizures now extends to a situation in which the only “cause” that an officer posseses is the odor of marijuana emanating from your vehicle. mnichols@nicholslaw.net Sat, 26 Nov 2022 22:55:00 GMT f1397696-738c-4295-afcd-943feb885714:3196 http://www.nicholslawyers.com/In-The-News/ID/3191/What-Did-You-Expect-Expect-the-Fight-over-the-Reach-of-No-Fault-Reform-to-go-to-the-Michigan-Supreme-Court#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3191 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3191&PortalID=4&TabID=175 What Did You Expect? Expect the Fight over the Reach of No-Fault Reform to go to the Michigan Supreme Court http://www.nicholslawyers.com/In-The-News/ID/3191/What-Did-You-Expect-Expect-the-Fight-over-the-Reach-of-No-Fault-Reform-to-go-to-the-Michigan-Supreme-Court The Michigan Court of Appeals, in a 2-1 opinion, ruled that the biggest piece of the reform of the Michigan no-fault benefits act does not apply retroactively to people hurt before July 1, 2019. Remember, Personal Insurance Protection Insurance (PIP) policies protect you if you were seriously injured. Under the old law, the insurance provider was legally obligated to provide you with unlimited benefits for medical and attendant care services including "all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person's care, recovery or rehabilitation," (MCL 500.3107(1)(a). That included payment of your medical bills related to care, rehabilitation or attendant care that could be provided by a professional or a family member. Of course, that can be a huge dollar figure if you suffer a catastrophic injury like a traumatic brain injury (TBI).This opinion is absolutely spot-on - and the fight is probably going to the Michigan Supreme Court. Briefs in support of the application for leave to appeal are probably getting drafted at this moment.The Court of Appeals got it absolutely correct. There were 2 major types of analyses at play: 1) retroactive application of a new law in Michigan and 2) the constitutional right to contract under our state constitution.Remember - in 2019 Governor Whitmer led a coalition of lawmakers to reform Michigan’s auto insurance laws (commonly called “no-fault”) in order to tout drastic slashes in your insurance premiums. A major part of this so-called “fix” was to slash by 45 percent - that’s right 45 percent - of the rates that medical and attendant care providers could receive in non-Medicaid cases. That is a lot - right?The changes to the reimbursement rates slashing them took effect on July 1, 2019.By the way - how much have your rates for auto insurance gone down? Right - we have not seen it either.2 people: Dr. Andaray (as a conservator for a family member) and Philip Krueger filed a lawsuit seeking declaratory relief by way of an order that the new law 2019 PA 21, should not be applied retroactively because their injuries pre-dated the new law.The conferees at the Michigan Constitutional Convention of 1962 enacted a bar from the legislature passing a law that infringed on, among other things, the right to enter into a contract. The argument is a pretty easy one from our perspective, people, including some of our clients, entered into contracts with their insurance companies and paid premiums in reliance on the ability to have unlimited personal injury benefits to cover medical care, attendant care and the major necessities of life and that includes some people who suffered catastrophic injuries and need 24/7 care. To completely reverse that by capping those reimbursements and thus probably taking your medical/health care provider out of business is literally undoing the whole reason to enter into the contact in the first place.The "reform" needs to be "reformed." The major change is that insurance providers can still sell you unlimited personal injury protection benefits but they are not required to by law. Yet, the insurance rate-relief according to studies has not been commensurate with the cost to accident victims on the back-end, like those discussed above.In any event, we remain ready to take on your cause, your fight, your life if someone injuries you - especially if the insurance company needs a kick in the proverbial … teeth.Mike and Wendy mnichols@nicholslaw.net Sat, 10 Sep 2022 16:04:00 GMT f1397696-738c-4295-afcd-943feb885714:3191 http://www.nicholslawyers.com/In-The-News/ID/3190/Michigan-in-the-National-Spotlight-over-Two-Proposed-Constitutional-Amendments#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3190 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3190&PortalID=4&TabID=175 Michigan in the National Spotlight over Two Proposed Constitutional Amendments http://www.nicholslawyers.com/In-The-News/ID/3190/Michigan-in-the-National-Spotlight-over-Two-Proposed-Constitutional-Amendments A contentious week long legal fight over whether to place two ballot proposals before voters this November came to an end on Thursday. The Michigan Supreme Court ordered the Secretary of State to certify the petitions sponsored by Promote the Vote and Reproductive Freedom for All. On August 31, 2022, the Board deadlocked 2-2 on a motion to place the two initiatives on the ballot. Board Chair Anthony Daunt and Board Member Richard Houskamp voted against the two proposals saying that they did not meet the requirements set forth by the Michigan Election. Law, MCL 168.1,et seq. As it pertained to the Promote the Vote initiative, which seeks to add further voting rights protections into the Michigan Constitution, the opposing Board Members stated that the petition did not comply with the requirement that ballot proposals state any current laws which may be amended or abrogated by the initiative. Opponents of the measure claimed that the petition should have stated that the initiative would have done away with “Election Day” as it is defined in our state constitution because the proposal would allow for 9 days of early voting. The Supreme Court refused those arguments, with Justice Elizabeth Welch writing to explain that Election Day will still exist as the date on which votes are counted and therefore, did not require any special statement in the petition language. The court ruled 5-2 in favor of placing the measure before voters. The more contentious debate over the past week has centered around whether to allow the Reproductive Freedom for All petition to reach the ballot. The measure would make reproductive freedom a fundamental right under the Michigan Constitution and effectively adopt the Roe v Wade standard of fetal viability. The ballot measure turned in 753,759 signatures in July, which is the most of any ballot initiative in state history. Proponents claim that they actually received over 911,000 signatures, but that many did not meet the group’s internal quality control for accuracy prior to submission. The Board again deadlocked 2-2 on the basis that Members Daunt and Houskamp did not believe the proposal had sufficient spacing between words. Critics argued that the manner in which the petition was printed left little room between some written words, despite spaces being present in electronic copies provided to the Board. The majority of the testimony heard by the Board during its August 31st meeting was from people who were opposed to the RFFA measure, with many attacking the content of the proposal rather than the form and signatures as is required under the Michigan Election Law. As noted by the Michigan Supreme Court in its order issued Thursday, the state’s election laws are silent as to what constitutes a “proper” amount of spacing between words. This author collaborated with attorneys Sujata Raman and Heather Cummings of Novi to write and submit an amicus brief on behalf of advocacy organization Michigan United, as well as over a thousand people who declared they had signed the RFFA petition knowing what it said and without any confusion. The Court granted our motion to file an amicus brief and the Chief Justice made note that opponents to the proposal failed to produce a single person who claims they were confused of mislead by the text of the proposal. In contrast, we provided the court with 1,295 people who stated to the contrary. In a concurring opinion by Justice Richard Bernstein, he made reference to the fact that, as a person who is blind, visual spacing between words has little impact on his ability to read and understand language. Dissenting opinions offered by Justices Brian Zahra and David Viviano largely followed the arguments of Board Members Daunt and Houskamp, and stated they would have denied the request to compel the Secretary of State to place the initiatives on the ballot. On Friday, September 9, 2022, the Board of State Canvassers acted on the orders from the Supreme Court and voted 4-0 to place both Promote the Vote and Reproductive Freedom for All on the ballot in November. The Board had previously designated Promote the Vote as Proposal 2, and Reproductive Freedom for All as Proposal 3. mnichols@nicholslaw.net Sat, 10 Sep 2022 15:11:00 GMT f1397696-738c-4295-afcd-943feb885714:3190 http://www.nicholslawyers.com/In-The-News/ID/3186/THAT-AFFIDAVIT-OF-PARENTAGE-Hold-the-Phone-the-Kid-is-Not-My-Son#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3186 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3186&PortalID=4&TabID=175 THAT AFFIDAVIT OF PARENTAGE: Hold the Phone – the Kid is Not My Son! http://www.nicholslawyers.com/In-The-News/ID/3186/THAT-AFFIDAVIT-OF-PARENTAGE-Hold-the-Phone-the-Kid-is-Not-My-Son Michael Jackson said it best: “the kid is not my son.” It is a song called “Billie Jean” and in 1984 it was a smash hit from the “Thriller” album. It was about Michael Jackson’s experience in having been sued for fathering a child that … despite the protestations of his “ex” the child was simply not his.Parenthood: a job that is accompanied by sleepless nights, endless financial expenditures, and a great deal of responsibility. OK so you had a fling; a one-nighter; a sesh from the snap – she says it is yours but what if you are just not sure?When a child is born to a mother that is not married, the mother and the acknowledged father make everything legal if they both sign an Affidavit Of Parentage (AOP). This is a legal document that does makes the acknowledged father the legal father of the child. Yet, there is more: additionally, the parties waive the right to genetic testing to determine if the man is the biological father of the child. If there is reason to believe that the acknowledged father is not the biological father, an interested party can file a motion under the Revocation Of Paternity Act (ROPA). However, generally such a motion must be filed within 3 years after the child’s birth or within 1 year of the date that the mom and suspected – or as the law says “putative” dad sign the AOP, whichever is later.Recently, I had a client who signed the AOP immediately following the birth of the child in February 2019. Within the first few months of the child’s life there was reason to believe that he might not be the biological father. He took it upon himself to have DNA testing done which concluded that there was no chance that he was the biological father. These results were known to my client (before he was my client) in summer of 2019. For a variety of reasons, the client did not retain counsel until after the child’s third birthday. In the spring of 2022, he signed a Consent Order for Child Support, because he thought he had to sign it.Like many rules, the Revocation Of Paternity Act (ROPA) has exceptions, most importantly there are exceptions regarding when the timeline to file a motion under the act can be extended. After consulting with the client and hearing the facts surrounding his case, we filed a motion to extend the time for filing an action under ROPA citing MCL 722.1443(12). Not only did the judge agree to extend the timeline, the court found that the proofs presented proved by clear and convincing evidence that my client was not the child’s biological father and ruled in his favor on the underlying issue and revoked the AOP.Even though he already knew it to be true, my client was ecstatic to hear me tell him “you are not the father!” Now he is no longer the legal father to a child that is not his and no longer obligated to pay child support. He is at peace. mnichols@nicholslaw.net Fri, 19 Aug 2022 01:59:00 GMT f1397696-738c-4295-afcd-943feb885714:3186 http://www.nicholslawyers.com/In-The-News/ID/3185/When-Criminal-Charges-Issued-Against-You-Just-are-Not-Fair#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3185 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3185&PortalID=4&TabID=175 When Criminal Charges Issued Against You Just are Not Fair http://www.nicholslawyers.com/In-The-News/ID/3185/When-Criminal-Charges-Issued-Against-You-Just-are-Not-Fair At the Nichols Law Firm - one of our associates, Jackee Moss, earned a dismissal with prejudice at 54a District Court in Lansing based on a ruling on the merits during a preliminary examination on charges of carrying a concealed weapon -- a felony charge. We put in a lot of work to prepare for the hearing and Jackee executed the plan to perfection. His bullet points:• Client was a CPL holder, however his CPL was suspended due to a PPO against him (PPO had nothing to do with a gun)• Per the Michigan Firearms Act, when a PPO is issued against a CPL holder, it triggers a suspension of a CPL • Our client never received notice of this suspension – as indicated by L.E.I.N.• Our client was a passenger in a vehicle that was stopped for no license plate• Officers allege the vehicle stopped too slowly which caused them to do a more in-depth investigation into the vehicle occupants• Our client initially denied being armed but eventually disclosed his possession of the firearm to officers after they told him they would not take him to jail for a CCW violation There is caselaw that is partially on point, and it was not our friend:  People v. Brown, 330 Mich. App. 223.  The court in Brown ruled that the government is not required to prove that the person accused had notice that he was not allowed to carry a concealed pistol. The prosecutor did not cite Brown.  However, they put forth the argument that the client was carrying a concealed weapon and he knew or believed that his CPL was suspended based on statements that the accused made during the traffic stop and were also captured by the officer's Body Worn Camera (BWC). I asked the court to take judicial notice of two documents, the PPO and MCR 3.705(A)(2).  I was going to use the combination of these documents to argue that the PPO was invalid because it did not meet the statutory requirements put forth in the court rules.  The Judge denied my request to take judicial notice of the documents stating that the validity of the PPO was an issue to be addressed with the Circuit Court. I was able to accomplish two big things on cross: (1) I showed the court a later portion of the officer’s BWC where client discusses having his CPL.  I used these contradictory statements by the client to rebut the PA’s argument that he knew or believed his CPL was suspended. (2) I was then able lay the foundation on cross-exam of the officer, to get the PPO admitted into evidence. I then advanced the following arguments in closing:  My client did not know that his CPL was suspended;that he engaged in behavior that his CPL expressly granted, and that the State should not be able to charge someone when the CPL that was issued did not preclude the client from engaging in lawful behavior.Secondly, I pointed out the Circuit Court had the ability to prohibit client from purchasing or possessing a firearm BUT that box was not checked.   The judge agreed with both of my arguments and stated that the State issuing these charges was “putting the cart before the horse.” Case dismissed. mnichols@nicholslaw.net Wed, 10 Aug 2022 02:24:00 GMT f1397696-738c-4295-afcd-943feb885714:3185 http://www.nicholslawyers.com/In-The-News/ID/3184/How-Our-Firm-Has-Recovered-in-the-Millions--Do-NOT-Make-it-About-Money#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3184 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3184&PortalID=4&TabID=175 How Our Firm Has Recovered in the Millions - Do NOT Make it About Money http://www.nicholslawyers.com/In-The-News/ID/3184/How-Our-Firm-Has-Recovered-in-the-Millions--Do-NOT-Make-it-About-Money In law school, they teach you the basics of analyzing a “tort” case: duty; breach; causation and damages. In 23 years of practice, I have found that so many lawyers focus on those 4 things. They are important, but do not lose sight of the story. What I mean by that is the human being who has put his or her life in your hands to get justice in a case has a story.Before I started practicing law in 1999, I was a broadcast journalist for about 12 years. I worked in radio -- a beautiful medium -- and then T.V. for 4 years after that, part of that time concomitantly in radio at Michigan State University Public Radio and at the Michigan Radio Network while I moonlit at the NBC affiliate in Lansing, WILX TV – all while I attended the night program at Thomas M. Cooley Law School. I learned a very basic life-rule in human interaction: everyone has a story. Some stories are really sad, some stories are awe-inspiring. Every … body … has … a … story.This is a truism that I employ every time I sit across the conference room table or my desk at the Nichols Law Firm (and the Reynolds Law Firm before that) and I needed to assess what “justice” meant to this future client or current client. Every single person has a story to tell before they got in that accident that gave rise to their personal injury claim; before that fall because of someone else’s negligence that gave rise to their personal injury claim or before that surgery that gave rise to their medical malpractice claim.Understanding that story and helping the client prepare to tell that story is critical to putting our best foot forward as a lawyer and client and getting that justice. Justice will never be perfect, but the pursuit of justice is your legal right. It is literally in the United States Constitution, forged over blood, pain and suffering about 230 years ago on the heels of our sacred Declaration of Independence and successful revolution from the yoke of a tyrannical monarchy that was the reign of King George III.With that said, every time a survivor with an injury walks through our door and we decide to take your case, I start from the concept that we are going to go to trial and we are going to have to – well to put it bluntly – kick the ass of the defendant and his lawyer in the courtroom at trial. We must assume that we are going to trial.If you take a case with the precept that you are just going to settle, you are short-changing yourself. You are not preparing. You are not reaching for the best result possible. All you are doing is preparing to settle. Think about that. Even though most cases ever filed in the post-modern history of America settle out of court – who do you think gets the better results – those who settle or those who are “ready for trial.”I started this with a little bit about my own story. My name is Mike Nichols. You can see more of my story elsewhere on this web-page but I propose that we leave it at this: my own story is part and parcel of what makes me different as a trial-lawyer and why my story and your story can intersect to get the justice that you deserve. mnichols@nicholslaw.net Tue, 26 Jul 2022 01:39:00 GMT f1397696-738c-4295-afcd-943feb885714:3184 http://www.nicholslawyers.com/In-The-News/ID/3182/A-Journey-of-over-800-Miles-to-Talk-with-Fellow-Lawyers-About-Marijuana-and-Driving#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3182 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3182&PortalID=4&TabID=175 A Journey of over 800 Miles to Talk with Fellow Lawyers About Marijuana and Driving http://www.nicholslawyers.com/In-The-News/ID/3182/A-Journey-of-over-800-Miles-to-Talk-with-Fellow-Lawyers-About-Marijuana-and-Driving My message in Minnesota: marijuana is not like alcohol. It should not be treated the same as alcohol but it should be regulated smartly. Who knew within weeks of my presentation to the Minnesota Society for Criminal Justice (MSCJ) that the legislature in the “Land of a Thousand Lakes” would “accidentally” legalize certain marijuana. In Case You Missed It: the New York Times (among other sources) reported that the Minnesota legislature and governor, passed a law that made marijuana legal in many instances. Except that many of the lawmakers who voted for it said that they had no idea that it legalized marijuana. I digress – I was invited by the MSCJ, via my friend Chuck Ramsay, to present on marijuana while driving issues. I am still in a semi-self-imposed hiatus on speaking although it really seems like less of a hiatus when I am scheduled for my THIRD speaking engagement of 2022 in September. I asked Chuck: “so is Minnesota recreational and you want tips on ‘how it’s going?” Chuck explained that in Minnesota, medical marijuana is approved as of 2014 but recreational is not yet approved, although it could be on the horizon. I knew that I could certainly address the problems with signal-to-noise ratio in mass spectrometry and interpreting a response by the instrument as a peak when it is not a peak – stuff like that because I have done it and litigated it many times. However, I had forgotten how much research has been conducted to try to correlate a level of marijuana – and by that, I mean the presence of the psychoactive component of THC – with impairment. I reminded myself that there are at least 3 generally-read and at least to a degree, generally-respected sources of information: The National Highway Traffic Safety Administration (NHTSA); the American Automobile Club (AAA) and the Michigan impaired driving safety commission. All 3 report that no causation can be drawn between the presence of any amount of THC to any level and the negative effect on driving ability or increased probability of a crash. The point of all of that reading and drafting power points and thinking and practicing to deliver this presentation is this: the more lawyers who are unafraid of going in front of a jury on an operating while intoxicated case, that involves a driver who is allegedly impaired or intoxicated because of the use of marijuana, the better it will be for all of us. Prosecutors are slowly-but-surely learning that just because the person used marijuana, even fairly recently before driving – it does not mean that the person is impaired to be behind the wheel. The psychoactive component of marijuana, tetrahydrocannabinol (THC) affects your brain, body and even your liver differently than alcohol. You may feel a mind or mood-altering affect but it does not mean – at least according to research – that you are any less safe to drive than an ordinary careful driver – let us say someone without about 3 cups of coffee on board. You feel differently, but you are just as safe to operate. I had a great time in Minnesota. I was able to catch a Twins game; catch up with my son, who joined me on the trip and otherwise share and gain some knowledge. Thanks for having me, MSCJ! mnichols@nicholslaw.net Tue, 19 Jul 2022 01:01:00 GMT f1397696-738c-4295-afcd-943feb885714:3182 http://www.nicholslawyers.com/In-The-News/ID/3180/The-Story-That-Media-Seems-to-be-Unable-or-Unwilling-to-Tell#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3180 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3180&PortalID=4&TabID=175 The Story That Media Seems to be Unable or Unwilling to Tell: http://www.nicholslawyers.com/In-The-News/ID/3180/The-Story-That-Media-Seems-to-be-Unable-or-Unwilling-to-Tell I literally had to “negotiate” a quote in the Lansing State Journal. I am sure that it is extremely difficult to be a police officer in the current political and social climate of 2022. Perhaps there is some merit to the narrative that has been cast by many. It is also difficult to represent a police officer who is under investigation for using physical response tactics to the resistance of a subject, especially a subject who is non-white. The Nichols Law Firm represents Officer Jose Viera of the East Lansing Police Department. Officer Viera was involved in a shooting on April 25, 2022. This is the story that none of the media outlets in the greater Lansing community or frankly, the State of Michigan, appear to be able to tell. The City of East Lansing has released several videos in two “waves”. The first six videos include an exterior video from the parking lot of the major grocery store at which the shooting occurred. If one watches that video and utilizes either slow motion or pause and takes the time to rewatch the video, a big part of this story is told. Aggregate that with  what is shown on that video (which does not contain audio) with the body worn camera (BWC) of the four officers who were at the scene of this store shooting and the picture becomes clear. The BWC does contain audio. The four officers were dispatched to a call with the following major facts: Black male who left his car and turned around and went back to his car to retrieve a gun and put it in his pants. Man then runs back toward the store. Man was wearing a coat with yellow on the shoulder. With a call like that, law enforcement would be grossly negligent if they failed to at least detain and question whoever fit that description to find out why they were carrying a gun and what they were doing in the store. That is what these officers set out to do. When they arrived at the store, the BWC for Officers 3 and 4 depicts them entering the store and within seconds, starting to walk and then run while yelling commands to “hey, stop”. The man did not stop and indeed was running and running fast which is depicted in the body worn camera of Officer 2 who was getting traffic about the direction that the man was running inside the store He set up with his gun drawn and ordered the man to show his hands and stop. This young man opened up one palm to the officer while carrying a bag of what turned out to be items that are apparently stolen. The subsequent exchange is captured back on the exterior footage from the grocery store’s monitor: the man is running at a high rate of speed away from the officers who are yelling to him to stop. He does not stop. Instead, he circles back around in a semi loop toward where his car was parked. He gets down on the ground between cars but before he does, he pulls out of his pants what appears to be a gun. At that point, Officer 1 begins yelling frenetically, “he’s got a gun, he’s got a gun, he’s reaching”. Officer 2 sets up behind a car to take cover while the man is ducking down between vehicles within maybe 10 feet of Officer 2. Two shots are fired. The man remains down for several seconds, and he is evidentially, sliding his gun underneath one of the parked vehicles. He then slowly gets almost upright and then turns and runs back towards the store at a high rate of speed. As he runs by Officer 2, Officer 2 fires six times putting him on the ground. The officers then get him under control by handcuffing him, and then they commence administering first aid with alacrity. The second wave of video were released on Monday, May 16, 2022. The interior video really adds little to the issue of why the officers were justified in shooting a many who was potentially a threat of violence to officers or the public (please see Tennessee v Garner). The video does show a few interesting points in two ways: when the young man checks out from the store, in my opinion, he pretty clearly is pulling the old “pay for one item at the self-checkout but don’t scan another item and walk out with a retail fraud under your belt” game. The second point is that as soon as he makes eye contact with the two officers (Officers 3 and 4) who entered the building’s west entrance (the grocery entrance), he does a 180 and walks the other direction. The officers pursue him and this coincides with the audio from the body worn camera for Officers 3 and 4 and which they start yelling, “hey!, wait!, stop!”. Astonishingly, I could not believe when I watched the news stories, for which I took the time during the evening to meet with TV crews instead of eating dinner at home with Wendy. I also attempted to reach out to the Lansing State Journal to point out those two observations on behalf of Jose and the other officers. None of that appeared on air nor in the Lansing State Journal. On Tuesday morning, instead of preparing for my Wednesday trial as I should have been, I took time out of the morning to send an email to: Managing Editor Stephanie Angel, Reporter Kara Berg, Reporter Bryce Airgood and Reporter Ken Palmer. It was not a pleasant email. I received an email response from both Kara and Ken indicating that they would attempt to include my perspective. They never did. They refused to even repeat my opinion statement about the young man stealing the corn. Not that it is any big deal that he committed a retail fraud but it certainly speaks to his state of mind when he made eye contact with the officers and further, his state of mind when he continued to run. Ken slightly rewrote my comment/quote and told me that if I did not want the quote to be aired that he would not air it. I finally had to say literally “just run it; it is better than losing in the Court of public opinion by default”. We are living in a time when people seem to want to feed a narrative rather than let the facts control the conclusion. When I attended the Police Oversight Commission meeting in East Lansing the prior week on May 9, 2022, I could not believe how reasonably intelligent people were so closed-minded about the concept that the officers had certain, specific training about the psychology of responding to resistance and not to mention the use of a gun by a subject. It is my hope that the City of East Lansing Police Oversight Commission gets its own legal advisor, who can at least give the members and the body educated opinions and analysis of sometimes complex but sometimes simple legal concepts. The Commission is there for a reason: we have mistrust in law enforcement and that mistrust is born from the history of America and other high profile acts of police brutality. However, the passions of the Commissioners are blinding the mission of the body. I hope that the media, as I always believed that it was the fourth branch of government or the “fourth estate”, can re-grip its hold on its venerable mission to watch government with objectivity and dispatch. To this point, I have been sadly and sorely disappointed. mnichols@nicholslaw.net Fri, 20 May 2022 18:35:00 GMT f1397696-738c-4295-afcd-943feb885714:3180 http://www.nicholslawyers.com/In-The-News/ID/3179/Taking-a-set-of-Bad-Facts-Looking-Behind-Them-And-Getting-a-Great-Verdict#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3179 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3179&PortalID=4&TabID=175 Taking a set of Bad Facts, Looking Behind Them: And Getting a Great Verdict http://www.nicholslawyers.com/In-The-News/ID/3179/Taking-a-set-of-Bad-Facts-Looking-Behind-Them-And-Getting-a-Great-Verdict When you hire a trial lawyer for a case - whether it is our firm or someone else, there is a really important piece that goes into the relationship: trust. Trust. It is almost as much trust as you have to have in a spouse/mate, child, someone who teaches your child - the kind of trust that is implicit and necessary to the relationship. LIkewise, we have to trust you to take our advice to heart - especially because you paid a lot for it, and also frankly to pay your bill.You have to trust the attorney to take seriously the job of putting your life in her hands or his hands. What that means is this: when you cannot see what is going on, the attorney is working behind closed doors with or without staff; thinking about your case and your situation; working on strategy; trying to come up with the way that the attorney can take some really bad facts and either turn them into a good verdict or tell you straight up where you will stand in front of a jury to the best of the attorney's ability, i.e. "this could be a fast guilty verdict," or words to that effect.Keep in mind, sometimes, we as attorneys have to tell you: "this is a toss up - I think a jury could acquit you but you never really know because you will not meet the jurors until the first day of trial."I have a framed photo of Vince Lombardi in my office on one of the top shelves on a bookcase so it sort of "overlooks" me. Vince Lombardi was a head coach in the National Football League (NFL). His vaunted Green Bay Packers won the first 2 super bowls and a bunch of other things before that. Coach Lombardi had a saying that I wrote on the back of the photo so that I can read it when I need to reach down deep for motivation - especially on those nice summer days that I am in the office because I have to fulfill my duty to my client."Winning isn't everything - it's the only thing. But it's not just winning - it is the will to win - it is the will to prepare to win that makes the difference." That quote is so often just shortened down to the first sentence and taken completely out of context. "It is the will to prepare to win."That is MY takeaway. That preparation is a process. It is a commitment. The reason for that is because during trial, there will be lots of decisions that the lawyer has to make - some of these decisions come pre-trial about witness issues or evidentiary issues. The only way to make these decisions firmly, confidently and with the goal firmly in mind of what you want to argue to the jury in closing is with preparation.You read and re-read the police reports; accident reconstruction reports; toxicology or DNA reports; you re-watch body worn cameras or listen to recorded witness interviews. You do it time and time and time again. A lot of clients and court observers, even law clerks struggle with one issue in particular - often a winning trial performance is an exercise in restraint. The best questions that I have asked a witness - whether it is an expert or otherwise - are frequently the questions that I do NOT ask. I learned from famed-trial lawyer and cross examination expert Roger Dodd the following rule: it is their evidence: our theory, their lips: our theory. If the answer to a question on cross does nothing to advance our theory - then we do NOT ask it. Another point that many people just do not necessarily appreciate when you are the client or the parent or loved one of a client is "why did the lawyer not say 'x' in closing?" There are a few critical aspects about that but most importantly is the concept of ethos, pathos, logos. That is a whole separate article but the bottom line is that you have to be credible in your persuasion. That is the pathos part of the "ethos, pathos, logos" concept. At the last trial, before closings, I told the client and his 84-year old mother, sister and his aunt that 'there are a lot of issues that you will wonder why I did not discuss in closing; there is a good reason for that: juries appreciate brevity."I had a list of about 13 things that I wanted the jury to make sure to consider as takeaways along with the burden of proof of beyond a reasonable doubt and what reasonable doubt FEELS like. I have found that one most give the jurors the permission to embrace their power. The best way to do that is to simply tell them - "you have all the power in the courtroom - no one can tell you how to vote and no one can second-guess you: not even the judge and that is exactly what the judge told you in her instruction when she said 'you decide the facts ... that is your job and your job alone." Respect the jurors and their ability to somehow amazingly come to the right conclusion.The takeaways:1. prepare like it is the last trial of your life2. stay discipline on cross - if this answer does not help the strategy - leave the question in your outline even if it would have produced a "gotcha" moment3. in closing - keep it short.Those of us who chose the world of criminal defense as a practice area know that it is a mission. Especially when it comes to defending drivers accused of drinking to the point of intoxication and then driving or using marijuana or other medications to the point of intoxication and then driving. I say that because so many times, people just assume - even the accused person - that someone arrested of drunk or drugged driving MUST be guilty.It matters only what the government can prove beyond a reasonable doubt. “We are players in the American justice system. We have a duty to be prepared and put forth our best effort – not just for our clients and their causes but for the system. As flawed as it may be – for it is truly the best imperfect system in the world.” mnichols@nicholslaw.net Sun, 03 Apr 2022 22:44:00 GMT f1397696-738c-4295-afcd-943feb885714:3179 http://www.nicholslawyers.com/In-The-News/ID/3178/Sometimes-a-Surprise-in-a-Clients-Feedback-Gives-Me-Lots-to-Think-About--Even-if-I-Get-Disappointed#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3178 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3178&PortalID=4&TabID=175 Sometimes a Surprise in a Client's Feedback Gives Me Lots to Think About - Even if I Get Disappointed http://www.nicholslawyers.com/In-The-News/ID/3178/Sometimes-a-Surprise-in-a-Clients-Feedback-Gives-Me-Lots-to-Think-About--Even-if-I-Get-Disappointed We like to get client reviews – at least when they say good things. That feedback is always helpful and we as lawyers should thrive on getting that praise; that gratitude when a client says things like “you saved my life.” That is a big deal. It feeds our ego and gives our purpose something that we can feel.Sometimes though a client/former client surprises me. Not long ago, I went to trial on a charge called “Moving Violation Causing Death.” The charge is basically this: the driver of a car commits a moving violation. As a result of that moving violation, the result is a death and there are no “intervening” events that serve to break the chain of causation. It is a misdemeanor punishable by up to a year in jail and a fine BUT it also carries with it a mandatory 1 year suspension of your driving privileges.These cases will often wind up in trial because of that 1 year suspension of driving privileges AND the fact that every now and then: an accident is just that – even when a person dies or his hurt seriously.The trials are usually awful though. Loved ones who recently lost in an instant a person who meant the world to them are frequently in the courtroom – sometimes just to get answers. You feel the glower. Even if it is directed at the client it still imbues a response: “you’re going through me if you want to get to him so stop f-----g glaring at my guy.”In this case upon which I am reflecting, our team put in probably a top 10 – heck not even that – a top 5 performance in my 23 years. I mean we rocked it at trial. We were prepared ahead of time; we were prepared during trial and we not only got a good verdict (he was not guilty) but we won the week. The cross examinations were on-point and disciplined, the courtroom presence was almost exactly what we needed to be (except for when I came back from lunch on day 1 with food on my slacks - this is one of the reasons I just don't eat lunch) and the closing argument was one of the better closings that we've done - it just felt good.We needed courthouse security to walk us to our cars that evening because there was concern that maybe, just maybe, 1 or more of this poor decedents’ 2 dozen or so survivors were about to get physical with the client. The client is a semi-truck driver. He knew nothing at age 64 but driving truck and this outcome meant the difference between keeping his career or maybe moving back in with his 84-year-old mother.So yeah – my palms were kind of sweaty all week; as in I should not touch the counsel table because I’ll leave a big perspiration stain (and just like my friend, Larry David – I respect wood too much for that).So, after I get home I check in on the client following that emotional drama-filled week. We were in such a hurry and trying so hard to keep our heads down and show respect to the victims’ family members by expressions of quiet humility – all I do is give the client a quick hug and tell him I will call him. However, I do not call him during the 2 hour drive home because I was introducing my 22-year-old clerk Julian to 80’s metal, the Black Crowes and the Foo Fighters (“All My Life” by the Foos is gonna’ blare in my car within minutes of entry after something really good happens in my life). He got a little Johnny Cash and Led Zeppelin for good measure and "Born in the U.S.A." by the boss is an anthem for the 50+ set to annoy the crap out of your generation - which doesn't know diddly about music.I get home and check in on the client - who had been emotional and sad all week. I will not reveal what we talked about but I asked him if he would be kind enough to write a review for us. A week or so later, the review was posted. It was so telling to me:"Mike Nichols was referred to me & represented me in a nasty accident case that drug out almost a yr and half. The whole time he made me feel at ease and comfortable from the very first phone call. Keeping me updated on progress, court dates etc. His legal assistants are also very sharp, just as friendly also. If I need a lawyer in Michigan again, he’ll be the first call I make. A 5 Star experience. Thank You Mike"After all the hours of trial preparation – literally making our friends along with Wendy act as mock jurors while I rehearsed closing on a Saturday Night (a SATURDAY night – I know you are all jelly of Wendy’s glamorous life as a co-founder of the Nichols Law Firm). We had to enlist P.J. at age 14 to spend an hour trying to help me get my i-Pad to display on the living room TV.After the week of no sleep. Spending money on hotel rooms and meals for not 1 but 2 clerks (needed it on this one) and non-stop thinking, researching, writing and yeah – credit where credit is due – Aaron Martinez found the cases that made our requested jury instruction a no-brainer for the judge. I mean we rocked it! What was his focus?CommunicationCarePutting him at easeFriendly teamThis ordeal took a very long timeAs lawyers, we cannot control the result. We do not win or lose cases – the facts do. I have never ever won a motion to change the facts (don’t think I haven’t tried). What we can do is help our clients feel the warmth of human compassion when the client is experiencing life’s darkest moments when the nights never seem to end, the mind does not seem to stop and fear replaces hope.It is 23 years in this honorable profession as a servant in the American Criminal Justice system. I know I am far from perfect as a communicator, an analyst, a strategist, a partner, a boss, a husband or a friend. Despite that, there is nothing wrong with trying every day “to find a way to try to be better than the day before” (thanks Jackee Moss for putting that Kobe tribute on your wall because I love that thought). I especially want to thank that client for writing a thoughtful review that helped me reflect on what was really important for him during this awful stretch in his life. The result was important – but the process was even more important. mnichols@nicholslaw.net Tue, 22 Mar 2022 02:43:00 GMT f1397696-738c-4295-afcd-943feb885714:3178 http://www.nicholslawyers.com/In-The-News/ID/3177/Expecting-East-Lansings-St-Patricks-Day-to-be-Off-the-Hook--Heres-a-Tip-on-How-Not-to-Answer-Certain-ELPD-Questions#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3177 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3177&PortalID=4&TabID=175 Expecting East Lansing's St Patrick's Day to be "Off the Hook" - Here's a Tip on How Not to Answer Certain ELPD Questions http://www.nicholslawyers.com/In-The-News/ID/3177/Expecting-East-Lansings-St-Patricks-Day-to-be-Off-the-Hook--Heres-a-Tip-on-How-Not-to-Answer-Certain-ELPD-Questions It will be the first St. Patrick's Day in East Lansing that will allow for full-tilt celebrations without restrictions. Social media is blowing up. If you are out and about and have alcohol on board, there is a trick that some ELPD officers are using to "box in" people who are about to be arrested for drunk driving (OWI)."Some of the officers are asking drivers either a 'scaled' question or, right before giving the driver a Preliminary Breath Test (PBT) they are asking 'do you know what the legal limit is? Do you think you'll be over or under?'" says East Lansing-based Mike Nichols of the Nichols Law Firm. When it comes to the "over or under" question, it is a no-win situation and very hard to explain if the driver answers "over." The right answer is either "under" or "I cannot answer that." When you think about it, "I cannot answer that" is a fair and honest answer because who really knows because there is no such thing as a human chemical test?Nichols says: "what really bothers me about this question, is that when a person is cooperative enough to submit to a PBT, they are like putty in the hands of the arresting officer and looking for what the officer is looking-for when it comes to answering the officer's questions. Yes - there is a right to remain silent, but more people who tend to be cooperative are going to try to please the officer." Nichols points out that this especially relates to students and other younger drivers.In addition, the scaled question is "on a scale of 1 - 10, 10 being the most intoxicated that you've ever been in your life, how intoxicated are you right now?" That is a horrible question and officers should not be allowed to ask it because it is a trick question. If you say "1" - you are admitting at least some degree of intoxication and that is exactly what a prosecutor will and has argued at trial. Nichols adds "the way to answer that is to say "0" or "that is not fair for me to answer." Most officers find that the best evidence that they develop in an investigation to use at trial is the subject's own statements.There are a lot of lawyers in Lansing and throughout the State of Michigan who say they practice DUI defense but they have not invested the hundreds of hours or hundreds of thousands of dollars to travel all over the country to learn how to really defend drivers accused of drunk driving - but that is exactly what we do at the Nichols Law Firm, where we are "Committed to Results." mnichols@nicholslaw.net Thu, 17 Mar 2022 01:04:00 GMT f1397696-738c-4295-afcd-943feb885714:3177 http://www.nicholslawyers.com/In-The-News/ID/3173/The-Weather-Outside-is-Officially-Frightful#Comments 0 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/RssComments.aspx?TabID=175&ModuleID=537&ArticleID=3173 http://www.nicholslawyers.com/DesktopModules/DnnForge%20-%20NewsArticles/Tracking/Trackback.aspx?ArticleID=3173&PortalID=4&TabID=175 The Weather Outside is Officially Frightful http://www.nicholslawyers.com/In-The-News/ID/3173/The-Weather-Outside-is-Officially-Frightful ... and sometimes the result is not so delightful.Friends, midwinter is upon us, and as expected, snowstorms that blanket the region with fresh powder are a welcome sight for those hitting the slopes, but for those heading to the supermarket: you face the old-man-winter challenges: slipping, sliding, fender benders and the like.We all have been inside the store right when a storm hits. What was just a bare parking lot when you arrived at the supermarket, is now a blanket of 1-2 inches of fresh snow. After you load the bags into the trunk, you are hurrying to get into the car and out of the cold wind, when Oooooooppss! You slip and hit the ground as you open the car door. Injured, in pain, and laying in the snow between your car and the one next door, you shout for help! Finally, someone hears you and calls 911. What started out as a $100 dollar trip to the grocery store, turned into several thousand dollars in unexpected medical expenses and time off work.Did you know that your No-Fault insurance policy may cover this claim? True story. No-Fault covers injuries that arise out of the use of a motor vehicle as a motor vehicle, i.e., loading the groceries into the car and getting into it. The term Michigan court use here is “alighting” from the motor vehicle.Generally, all your medical expenses would be covered for life (if you have unlimited PIP coverage) and your time off work paid for up to 85% of your gross earnings. If someone has to help you around the house, you can recover $20 per day for up to three years from the date of the crash. Same for your lost earnings.With the 2019 amendments to the No-Fault law, some of you may have opted for less PIP coverage. That means that you may have a cap on the amount of medical expenses covered by your No-Fault carrier. It is always worth getting unlimited PIP so that there is no question that you get the coverage you need for as long as you need it.Call today for your free consultation. Matthew J. Heos mnichols@nicholslaw.net Wed, 02 Feb 2022 20:52:00 GMT f1397696-738c-4295-afcd-943feb885714:3173