Note from the host

Written on February 27, 2004 by David C. Sarnacki

Presently, this segment of the site is under reconstruction. Please be patient with us. Thank you.

Posted in Poems/Quotes No Comments »

Deford article

Written on February 26, 2004 by David C. Sarnacki

The Bobby Duval story by Frank Deford is now available at
Sports Illustrated

Posted in Something Different No Comments »

Hope in Haiti

Written on February 26, 2004 by David C. Sarnacki

NPR’s Morning Edition features the amazing story of Bobby Duval “and his children.” Listen to commentator Frank Deford’s inspiring description of the former soccer star and Haitian political prisoner.

If you prefer, check out Tim Collie’s earlier story from the
Orlando Sun Sentinel (excerpt):
“There’s no big deal, really,” he says. “I just decided that this is my country and I was going to do my best to make a change here. That’s all.”
That’s not all to the 300 or so children who attend Athletics of Haiti, a novel program that offers sports, food and education to children from the vast slums of Port-au-Prince. Against odds every bit as formidable as the struggle for democracy here, Duval has kept the program running for five years of turmoil in Haiti.
***
“For 20 years, being an advocate of human rights … I wanted to do something that I could [put] my hands on, really,” Duval said.
“When you’re an advocate, it does have an effect. Had we not done what we did … to advance the social movement, I probably couldn’t have the political space now, this real space, to do what I’m doing today.”

Posted in Something Different No Comments »

Trial notebooks

Written on February 25, 2004 by David C. Sarnacki

Checklists
TRIAL NOTEBOOK:
1. Scheduling order
2. Pleadings
3. Pretrial motions
4. Plaintiff’s trial brief
5. Defendant’s trial brief
6. Miscellaneous outlines
7. Plaintiff’s theory of case
8. Defendant’s theory of case
9. Trial related motions
10. Voir dire
11. Opening statement
12. Stipulations
13. Plaintiff’s testimony
14. Plaintiff’s witnesses
15. Plaintiff’s exhibits
16. Defendant’s testimony
17. Defendant’s witnesses
18. Defendant’s exhibits
19. Closing argument
20. Jury instructions
21. Special verdict form
22. Trial Notes
23. Outlines of Direct and Cross-Examination
24. Proof Checklists

Posted in Persuasion/Advocacy No Comments »

When you need to forgive

Written on February 23, 2004 by David C. Sarnacki

Dr. Schuller provides this advice on forgiving another person (excerpt):
I submit that FORGIVENESS, as a human value, is the most powerful healing force there is. Some of you are carrying a grudge against someone, and you need to forgive. Some of you may need to forgive yourself. And that is the only way you will find healing for your sorrow, the removal of jealousy, or the erasure of bitter memories. Where in your life do you need the miraculous power of forgiveness? In a few words, identify the area of your life where you need to experience forgiveness:

Now, in your mind imagine that you are approaching the one whom you need to forgive. You explain the feelings you have had and the need you now have to be forgiving. In love, you ask forgiveness for not having been forgiving of them. Then imagine that you experience the warmth of reconciliation. Enjoy that feeling, and then begin plans to work out the above scene in real life.

Posted in Relationships No Comments »

What it means, at that age

Written on February 22, 2004 by David C. Sarnacki

The New York Times examines people living to 100 and beyond, and the impact on parent-child dynamics, sibling rivalries and other relationships.

Susan Dominus writes (excerpt):
***
In the annals of human longevity, the Blaylock sisters represent a happy aberration, an anomaly so rare that they have donated blood for the sake of genetic research. They have all sailed past the current life expectancy of 79 for women in the United States, showing little serious wear along the way. The three sisters over 85 have beaten the unnervingly high odds of developing Alzheimer’s (50-50 for people that age and older), and all four have survived bouts with at least one of the most common causes of death for women — heart disease, cancer and stroke. It’s tempting to say that the sisters look young for their ages, but in Audry’s case, at least, there isn’t much basis for comparison: there are fewer than 70,000 centenarians in the United States.

Over the coming decades, though, researchers expect that figure to jump. Even conservative demographers predict that there will be 10 times the current number of centenarians in 2050, when what remains of the boomers — the generation born between 1946 and 1964, a group representing one-third of the U.S. population — hits old, old age. According to United Nations population projections, close to 1 in 20 American boomers are expected to live to 100, thanks to breakthroughs in treatments for heart disease and cancer, lives relatively free of hard labor and longstanding memberships at the gym. Those centenarians may not even be the most senior members of society, either — the National Institute on Aging predicts that the boomers will be playing bridge with a growing number of people 110 and older, or supercentenarians. Demography, of course, is a game of interpretation. (Some contrarian experts predict that life expectancy will decline if obesity rates keep escalating.) But if American demographers have made one mistake consistently over the past two centuries, it’s underestimating the rate at which life expectancy has grown.

The quickening pace of biotechnology might also add to the longevity boom. Some of the country’s top cellular biologists will sit in their offices at Harvard and M.I.T. and announce, their faces alternately grave and gleeful, that within the next 10 to 30 years a drug will appear on the market that will slow down the process of aging. They point to recent examples of yeast cells and worms and lab mice whose life spans they have extended as much as five times as long with feats of genetic manipulation, and they suggest that they will be able to achieve more modest results in humans. They don’t talk about immortality, but they do talk about healthy centenarians.

Even if those scientists are wrong — medical history is filled with failed promises of just this sort — the experience of old, old age, whatever its furthest reach, will no doubt change in the coming years. Even now, there are signs of preparations for a generation’s worth of Audrys: retirement homes are busily upgrading their housing with cable and Internet access; economists are dutifully reporting on the enormous burdens Social Security will face; design experts are adding style to formerly utilitarian canes and bathtub rails, the better to seduce the powerful market of the elderly-to-be.

The rise of old, old age will also have more intimate, less easily quantifiable implications. How will the foreknowledge of an extra 15, 20 or 30 years shape the pacing of the lives that precede them? Will people save more for retirement, or plan on embarking on second careers the way they currently plan on a bungalow in Florida? If life suddenly offers a more generous gift of time, how might people decide to spend it? You can imagine tricky periods of transition, as children realize they have to rethink their assumptions about how long their parents’ lives will affect their own — consider the inheritance that never arrives, the matriarchal mantle that never gets passed down. The natural sequential phases of old and new generations — the younger cohort’s rise, the start of the older’s descent — may no longer fall so neatly in sync, creating tension or confusion. More optimistically, there may be second opportunities for reconciliations and resolutions, as families have the boon of extra years, and the wisdom that comes with it, in which to come to terms. The philosophical impact on family dynamics will be profound, as parents continue to lean on children long past retirement themselves, and people in their 80’s learn what it means, at that age, to still be somebody’s child.

Posted in Relationships No Comments »

Child support without regard to fault

Written on February 21, 2004 by David C. Sarnacki

The Michigan Court of Appeals is publishing Evelyn v Shire (No. 242681, February 19, 2004), a decision in which the court reversed the trial court and remanded for a hearing and the entry of an order of child support. The trial court erred by concluding that the mother was not entitled to child support because the child was conceived as a result of an uncharged act of criminal sexual conduct with a fourteen-year-old boy. Child support is to provide for the needs of the child and is awarded without regard to the fault of either of the parents.

Owens writes (excerpt):
Subsequently, the Macomb County prosecutor, on behalf of petitioners, petitioned the trial court for child support.1 Respondent objected on the basis that (1) Brandon was conceived as a result of criminal sexual conduct perpetrated against him by Evelyn when he was fourteen years old, (2) Brandon was conceived and born while Evelyn was married to David, (3) respondent had no knowledge of Brandon until this case was commenced, and (4) Evelyn should not be allowed to profit (in the form of child support) by her misconduct.

The trial court determined that Brandon was a child born out of wedlock within the meaning of the Paternity Act, MCL 722.711(a). The court found no provision in the Family Support Act, MCL 552.451 et seq., that entitled Evelyn to her requested relief or that prohibited the court from refusing to grant relief under the circumstances presented in this case. The court then applied equitable principles to deny the petition for child support. After the trial court denied petitioners’ motion for reconsideration, petitioners appealed to this Court.
***
Nevertheless, petitioners’ essential argument is that the trial court failed to follow the child support law. To the extent this issue was not properly raised on appeal, we have held that we may choose to “address any issue that, in the court’s opinion, justice requires be considered and resolved.” Paschke v Retool Industries (On Rehearing), 198 Mich App 702, 705; 499 NW2d 453 (1993), rev’d on other grounds 445 Mich 502 (1994). The underlying claim here is one of first impression in this state and is of great importance. We therefore conclude that it is appropriate for us to determine whether the trial court correctly decided not to order child support because the child was conceived as a result of an act of criminal sexual conduct in which respondent was the victim.

Respondent argued that he was the victim of an act of criminal sexual conduct committed by Evelyn because he was fourteen years old when she induced him to have sexual intercourse. He reasoned that because he was under the age of consent, his participation was legally involuntary. This argument confuses two distinct legal concepts. Because of his age at the time of the sexual conduct, the law refuses to permit the adult in the relationship to claim consent as a defense. People v Gengels, 218 Mich 632, 641; 188 NW 398 (1922) (“Proof of consent is no defense, for a female child under the statutory age is legally incapable of consenting.”); People v Bennett, 45 Mich App 127; 205 NW2d 831 (1973) (fourteen-year-old boy incapable of giving legal consent to act of taking indecent liberties). Therefore, even if respondent was a willing participant in the sexual intercourse, Evelyn could still have been charged with, at least, third degree criminal sexual conduct. MCL 750.520d(1)(a) (victim between 13 and 16 years old).

However, the issue presented by this case is not Evelyn’s criminal culpability for criminal sexual conduct, or whether respondent was – or could have been – a “consensual” participant in that activity. Rather, we are concerned with whether respondent may be liable for child support for the child that resulted from the sexual activity. Child support is not imposed to penalize or victimize either parent. “The purpose of child support is to provide for the needs of the child.” Macomb Co Dep’t of Social Services v Westerman, 250 Mich App 372, 377; 645 NW2d 710 (2002), citing Evink v Evink, 214 Mich App 172, 175-176; 542 NW2d 328 (1995). “Child support is not imposed for the benefit of the custodial parent, but rather to satisfy the present needs of the child.” Pellar v Pellar, 178 Mich App 29, 35; 443 NW2d 427 (1989).

Guidance regarding this determination may be derived from the decisions of sister states that have confronted this issue. The courts that have considered this issue have uniformly concluded that the fact that a child results from the criminal sexual act of an adult female with a minor male does not absolve the minor from the responsibility to pay child support.
***
We agree with these authorities. The record indicates that respondent participated in the act of sexual intercourse that resulted in the conception of Brandon. Respondent is not absolved from the responsibility to support the child because Evelyn was technically committing an act of criminal sexual conduct. The public policy of this state seeks to secure support for children. Contrary to respondent’s view, Evelyn does not “profit” from her criminality. “Child support is not imposed for the benefit of the custodial parent, but rather to satisfy the present needs of the child.” Pellar, supra at 35. We recognized in Pellar that “[t]he needs of the child are of overriding importance.” Id. This important public policy is furthered by requiring respondent to pay child support. The trial court erred by refusing to award child support on the basis that respondent was the “victim” of an act of criminal sexual conduct. We therefore reverse the order denying child support and remand this case to the trial court for a hearing to determine the proper amount of support respondent should be required to contribute.

Posted in Law: Cases/Statutes No Comments »

Chores mold great kids

Written on February 20, 2004 by David C. Sarnacki

ABCnews tells us that chores are a great technique for raising responsible children.

Kate Rice writes (excerpt):
The best solution is an old-fashioned one that may, at first, seem improbable: household chores. Chores top the list of most of the experts interviewed for this story.

They had other recommendations as well, of course. Parents should be responsible and set a good example. They must also make clear their expectations for responsible behavior. And, though it can be difficult, they have to let their children suffer the consequences of their own mistakes and learn from those mistakes rather than bail them out (unless it’s dangerous not to). They shouldn’t, for example, rush to school with children’s homework if they forget it.

Parents also need to monitor their children’s use of the media. And it helps if parents can build a community of like-minded friends for themselves and their families. Finally, since teens are hard-wired to take risks, parents should try to give them positive risk-taking options. (See our “tips” for more, below.)
***
Marty Rossman, associate professor of family education at the University of Minnesota, finds that the best predictor of a child’s success — defined as not using drugs, quality relationships, finishing education and getting started in a career — is that they began helping with chores at age three or four. The study found that it was important to start young.
***
The strategy of giving children family responsibilities works because it gives them a sense of belonging to a team and being a contributing member of that team, according to Janis Keyser co-author of Becoming the Parent You Want to Be (www.becomingtheparent.com).

Children, especially older ones, desperately want to belong to a group and chores make them an active part of an important one: their family. Chores also build a sense of confidence and competence, traits that help them resist peer group pressure.

Chores are also a way of giving children some leeway within a broader framework that lets them practice making decisions and planning a schedule. Ideally, they learn that making decisions requires a bit of thought. “When there’s a choice to be made, pause, check your gut feeling and follow your gut,” is the lesson kids need to learn, says Mimi Doe, founder of SpiritualParenting.com and author of 10 Principles For Spiritual Parenting and Busy But Balanced.
***
Here are some experts’ tips for raising responsible children:

As children get older, parents need to realize that teens are hard-wired to take risks, says Stephen Wallace, chairman of SADD (Students Against Destructive Decisions/Students Against Drunk Driving). . . . He sees opportunities for positive risk taking. . . .

You don’t have to do it alone, says James Morris, past president of the American Association for Marriage and Family Therapy (www.aamft.org) and assistant professor of marriage and the family at Texas Tech University. He considers the idea of two parents (or often even one) raising children alone is actually new and relatively unnatural. Anthropologically speaking, clans or extended families raised children, he says. So parents need to create their own little village for their children. . . .

Be clear with children about what you expect from them. . . . And if a child forgets, let them feel the consequences, she says.

Having kids help with chores makes great sense on paper but is often accompanied by such time-consuming resistance that parents end up doing it themselves. Tackle it in increments. Give kids a chore list to check off (try www.listorganizer.com for sample lists). . . . Most parents underestimate children’s capability to do chores says Elizabeth Pantley, author of Perfect Parenting and Kid Cooperation(read her helpful chore strategies at http://library.adoption.com/Teaching-and-Training-Children/Should-My-Kids-Do-Chores/article/1862/1.html).

Give them tools. Set a time for cleaning rooms. . . . Deconstruct tasks. Children get just as overwhelmed by tasks as adults. A pile of toys can look overwhelming so help by giving them one toy and reminding them where it goes, start with the next, and so on. . . .

You’ve got to walk the walk yourself. “My philosophy has always been to teach by example,” says Peter Alexander, Jake’s dad. He believes in accepting your responsibilities, being honest and working hard, tries to do that himself and believes his kids share his values. . . .

Posted in Families/Children No Comments »

Mommy’s secret, daddy’s money

Written on February 20, 2004 by David C. Sarnacki

The Grand Rapids Press
reports on a daughter’s claim for child support brought after 18th birthday.

Doug Guthrie writes (excerpt):
Last week, the Michigan Court of Appeals affirmed a decision by Kent County Circuit Judge Paul Sullivan in favor of the daughter’s claim. The issue of how much is owed now likely will be set for trial in Kent County Family Court. Judge Steven Pestka is assigned to the case.

“This is going to turn paternity cases on their heads,” said Balliet’s lawyer, Amy Rademaker.

Total support would be based on Balliet’s growing income since his 1990 graduation from Ferris State University’s pharmacology program.

“Now, a mom can say, ‘I’m not going to deal with dad, with parenting time or any other of those troubling issues until my kid turns 18,’ and she can file a lawsuit for the total amount in bulk,” Rademaker said. “It will plunge unsuspecting men into debt. This is a crushing blow because of what it means statewide. It’s huge.”

But the daughter says she doesn’t care about legal precedent, only that, “I have a father who doesn’t want anything to do with me.

“I deserve a future like any other child,” Clough said in a telephone interview Monday from the duplex she shares with a friend down the street where she grew up in her grandparents’ home in Fort Myers, Fla.

“I’d much rather have had a relationship with my father, but sometimes it can’t be that way. I’ve never seen him, not even a picture of him. There were times when I wondered why I didn’t have a father, but I don’t hate him. I can say I sort of even understand his situation.”

Strict application of the law, as in this case, means even if a mother keeps a child secret from a father, the child’s right to support from the father cannot be severed by the mother’s actions, said Kristine Mullendore, an associate professor of legal studies at Grand Valley State University and a former assistant Kent County prosecutor.

“Child support isn’t the mother’s, but the mother exercises it on behalf of the child. Support is for the benefit of the child, not the mother,” Mullendore said.

Posted in Law: Cases/Statutes 7 Comments »

Meetings that matter

Written on February 19, 2004 by David C. Sarnacki

Bob Rosner, Allan Halcrow and Alan Levins put together a two-part piece on meetings for ABCnews.

Part One addresses how to wake up your meetings when you’re in charge (excerpt):
Good meetings don’t just happen. If you’ve called the meeting then you’re in charge, unless you’ve asked someone else to run it. Take that role seriously:

Reiterate the purpose of the meeting.

Follow the agenda.

For each issue, clarify what you want: information, ideas, opinions or some combination.

Manage the conversation; don’t let everyone talk at once and step in if people wander off the subject.

Keep the conversation respectful. Don’t tolerate insults, grandstanding or inappropriate humor.

Don’t let one or two people hog the floor. If necessary, respectfully cut them off. The rest of the group will be grateful.

Don’t let anyone sit in silence. Everyone present is there for a reason, and should participate. Some people are naturally shy, may have cultural values that keep them quiet or may feel bulldozed by the loudmouths. Step in and invite them to contribute.

Acknowledge what people say. If there seems to be some confusion, restate what you heard and be sure that’s what the speaker intended to say.

Make notes as you go. If someone raises an issue or asks a question best addressed at another point, respectfully say so but be sure to get back to her later. For each agenda item, close the discussion. If you’ve reached a consensus, restate it. If you need to make a decision, make it and state it clearly. If you decide not to make the decision, explain why (e.g., you need more information) and when you will make the decision.
***
Let people know what happened. In some cases, that simply means letting them know what’s been decided. In other cases, detailed minutes are better. The minutes should go out within a day or two and should follow a consistent format:

Who was there
The issues that were discussed
Key points of the discussion
Decisions
Action items (work assigned at the meeting) with deadlines

If major projects are discussed in the meeting, talk briefly with key players afterward and make sure you agree about next steps. Clarify your expectations.

Part Two addresses how to get the most out of meetings when you’re not in charge (excerpt):
Be prepared. Read, study, ask questions — do what it takes to be up to speed on what’s being discussed. Identify areas where you would like to contribute and jot notes to yourself so you don’t forget it. If you’ll need feedback at the meeting, or if people will need time to digest what you contribute (budget data, for example), distribute it in advance.

Show up on time. Get to meetings on time — even if the person running them is chronically late. That allows you to settle in and focus your attention and it shows respect for the other the participants.

Observe the meeting culture. Meetings vary depending on who is running them. Get a sense of what’s acceptable, then follow the norm. Is it OK to bring coffee or food into the meeting? OK to slip out to use the restroom or retrieve something at your desk? Do people just say what’s on their mind, or do they wait to be called on? There are no “right” answers — except to follow the protocol.

Don’t talk just to hear your own voice. This isn’t talk radio. Don’t speak up unless you have something to add. Resist the urge to offer a play by play of the meeting, to second opinions that don’t need seconding, or to wander off the point. Some people talk to be noticed (“at least she’ll know I was there”), but trust us — you won’t be noticed favorably.

Don’t keep too quiet. On the other hand, sitting through meetings in silence isn’t a good idea, either. People will begin to wonder why you’re there — or even to wonder what you contribute to the organization. Speak up when you can contribute expertise, facts that only you have or to advocate for something you believe in.

Say what you have to say during the meeting. Don’t say one thing in the group and then run around afterward telling people what you really think. Remember, you’re in business, not in Congress.

Make notes. Even if someone else is charged with keeping formal minutes, take your own notes. Doing so helps you focus on the conversation and not on the errands you need to do on the way home. It also helps ensure that you’ll remember the key points that affect you.

Play the appropriate role. If a superior has called the meeting, your job is to be supportive. Don’t suddenly announce that you oppose her proposal or think the business plan is unworkable. Before the meeting is the time to voice your disagreements. You may be able to resolve them on the spot or your boss may encourage you to speak up at the meeting anyway (the best bosses encourage dissent). Above all, don’t embarrass your boss by being unprepared.

If a subordinate called the meeting, your job is to be sure that person shines. Stay in the background. Don’t criticize how the meeting is being run (say something afterward if need be). Don’t disrupt the agenda. And don’t drop any bombshells. It borders on the cruel to have heads swivel in your direction only to have you say, “No, I don’t think it’s a good plan.” If you really believed that, you shouldn’t let the plan be put before the group in the first place.

Follow up. If any action items fall to you, take care of them as soon as possible. Then let people know that you’ve done the task.

Posted in The Practice No Comments »

Closings

Written on February 18, 2004 by David C. Sarnacki

Checklists
CLOSING ARGUMENTS:
Objectives:
To answer lingering questions.
To argue theory of case (perspective):
1. Explain what case is about, what is important, and why.
2. Put all parts together into a whole.
3. Persuade trier-of-fact to find in your client’s favor.
Content:
1. Be as brief as possible.
a. Long enough to cover subject.
b. Short enough to keep interesting.
2. Answer lingering questions and sit down.
3. Argue theory of case:
a. Facts, especially with references to instructions.
b. Purpose and significance of each type of evidence.
c. Burden of proof.
d. Credibility of witnesses.
1) Why some should be believed.
2) Why some should not be believed.
e. Strengths.
f. Admissions or favorable cross-examination testimony.
g. Weaknesses.
1) Explain how overcome.
h. Opponent’s weaknesses.
1. Equities.
j. Consequences to “community.”
Structure:
1. Introduction:
a. Reduce dispute to bare essentials:
- What case is not about.
- What case is about.
b. Highlight theme in interesting manner.
2. Middle:
a. Primacy and recency:
1) Best point first.
2) Second best point last.
3) Third best point in the middle.
b. Speak as if outline:
1) Use rhetorical questions as outline heading.
(a) Anticipate questions as if the trier-of-fact could speak to you.
2) Summarize evidence periodically.
(a) Show where in outline you are.
(b) Tell when leaving one issue, going to another.
3. Conclusion:
a. Summary of conclusions you want trier-of-fact to reach.
b. Tell trier-of-fact what remedy/verdict you want.
Delivery:
Be yourself.
Be sincere.
Believe what you ask the trier-of-fact to believe.
Use words the trier-of-fact understands.
Use words and ideas that move or motivate people (hopes, needs, fears).
Maintain eye contact. Don’t read.
Use outline.
Use themes, analogies, stories, rhetorical questions.
Use exhibits, visual aids.
Emphasize.
Use understatement.
Use overstatement.
Use silence.
Be confident (preparation). Begin without notes. Finish without notes.

Posted in Procedures/Rules No Comments »

When relocation changes the established custodial environment

Written on February 17, 2004 by David C. Sarnacki

The Michigan Court of Appeals is publishing Brown v Loveman (February 12, 2004, Case No. 249016). The Court affirmed the order granting a petition to relocate the minor child to New York, but reversed and remanded for an evidentiary hearing (best interests analysis) on the proposed parenting time schedule that would change the child’s established custodial environment.

Jansen writes (excerpt):
Plaintiff contends that the trial court erred in applying the D’Onofrio factors, as opposed to the best interest factors, where there had been a prior status quo order and where the trial court determined that an established custodial environment existed with both parties. We find that the trial court did not err in applying the D’Onofrio factors when considering defendant’s petition to change the minor child’s residence. However, once the trial court granted defendant permission to remove the minor child from the state, and it became clear that defendant’s proposed parenting time schedule would effectively result in a change in the child’s established custodial environment with both parties, it should have engaged in an analysis of the best interest factors,
MCL 722.23, to determine whether defendant could prove, by clear and convincing evidence, that the removal and consequent change in established custodial environment and parenting time was in the child’s best interest.
***
We find that the trial court properly determined, at the outset, that the D’Onofrio factors, now provided in MCL 722.31, were the appropriate inquiry when ruling on defendant’s petition for change of domicile, as opposed to the best interest factors that are appropriate to consider in ruling on a request for a change of custody. Because it is possible to have a domicile change that is more than one hundred miles away from the original residence without having a change in the established custodial environment the trial court did not err in, solely, applying the D’Onofrio factors to the change of domicile issue. However, once the trial court granted defendant permission to remove the minor child from the state, and it became clear that defendant’s proposed parenting time schedule would effectively result in a change in the child’s established custodial environment with both parties, it should have engaged in an analysis of the best interest factors, MCL 722.23, to determine whether defendant could prove, by clear and convincing evidence, that the removal and consequent change in established custodial environment and parenting time was in the child’s best interest. The subsequent change of the established custodial environment will be addressed, infra, but this change did not arise until after the trial court had ruled on the change of domicile motion. Because the trial court properly decided the domicile change based upon the D’Onofrio factors, and the change of an established custodial
environment did not arise until the defendant’s proposed parenting time schedule was entered, we find that the trial court properly addressed the domicile change using the D’Onofrio factors.

Plaintiff’s second issue on appeal is that the trial court erred in adopting the parenting time schedule proposed by defendant, which amounted to a change of custody without holding a hearing requiring that there be a showing by clear and convincing evidence and that the change is in the child’s best interest. We agree.
***
It would be illogical and against the intent of the Legislature to apply MCL 722.31 without considering the best interests of the minor child, if the change in legal residence would effectively change the established custodial environment of the minor. Ansell, supra at 355. Otherwise, where parents have joint physical custody, and one party seeks to change the legal residence of the child (which would effectively change the established custodial environment),
the party would only be subject to the lesser preponderance of the evidence burden required by MCL 722.31. The Legislature could not have intended MCL 722.27 and MCL 722.31 to be applied completely independently of each other, where the result would allow a party seeking to change domicile (and in effect change the established custodial environment) to circumvent its burden of proof by clear and convincing evidence that the change is in the child’s best interest.

This Court has recognized that a change in domicile will almost always alter the parties’ parenting time schedule to some extent, and has, thus, held that the parenting time schedule need not be equal to the prior parenting time schedule in all respects. Mogle v Scriver, 241 Mich App 192, 204; 614 NW2d 696 (2000). Parenting time is granted if it is in the best interest of the child and in a frequency, duration, and type reasonably calculated to promote strong parent-child relationships. MCL 722.27a(1). But this Court has held that if a requested modification in parenting time amounts to a change in the established custodial environment, it should not be granted unless the trial court is persuaded by clear and convincing evidence that the change would be in the best interest of the child. In re Stevens, 86 Mich App 258, 270; 273 NW2d 490 (1978).
***
It is possible to have a change of domicile, while having both parents retain joint physical custody without disturbing the established custodial environment. See Scott, supra. In Scott, supra at 450-453, both parents had joint physical custody of their children, the defendant had custody of the children during the school year, and the plaintiff had custody of the children during the summer, as well as on spring and winter vacations, and some weekends. This Court affirmed the trial court’s grant of the defendant’s petition to move the children to Ohio, and denial of the plaintiff’s motion for sole physical custody. Id. Where the parties retained the same parenting time schedule despite the change in domicile, this Court did not believe that it
deprived the plaintiff of his joint custody of the children. Id. at 451.

In the instant case, however, it appears that the modification from equal parenting time to defendant having parenting time during the school year and plaintiff having parenting time in the summer necessarily would amount to a change in the established custodial environment, requiring analysis under the best interest factor framework. See Dowd v Dowd, 97 Mich App 276, 277; 293 NW2d 797 (1980).
***
The trial court did not clearly err in applying the D’Onofrio factors when considering defendant’s petition to change Marley’s residence from Michigan to New York. But once the trial court granted defendant permission to remove the minor child from the state, defendant’s proposed parenting time schedule effectively amounted to a change in the child’s established custodial environment. Once there was a change of the established custodial environment, the trial court was required to conduct an evidentiary hearing wherein defendant would have the opportunity to prove by clear and convincing evidence that the proposed change was in the minor child’s best interest. Failure to require such a showing was error and we remand for an
evidentiary hearing, at which time trial court must articulate its findings of fact on the relevant best interest of the child factors, and determine whether defendant can prove by clear and convincing evidence that her proposed parenting time schedule is in the best interest of the minor child.

We affirm the trial court’s application of the D’Onofrio factors and grant of defendant’s petition to remove the minor child; we reverse trial court order adopting plaintiff’s proposed parenting time schedule; and remand for a full evidentiary hearing to determine whether defendant can prove by clear and convincing evidence that her proposed parenting time schedule, which amounts to a change in the child’s established custodial environment, is in the child’s best interest. We do not retain jurisdiction.

Posted in Law: Cases/Statutes 5 Comments »

Big ideas for business development

Written on February 17, 2004 by David C. Sarnacki

Still confused about all the business development tips coming across your desk? Looking for a place to start or a way to redefine your focus? How about some Big Ideas for business development? Here’s a few to get you started. Perhaps they’ll even make your business development efforts efficient, effective and enjoyable.

Big Idea 1: DO SOMETHING. Invest your time and talent now, but adopt a long-term perspective for results. Develop relationships with potential clients and referral sources. Choose activities you care about. Develop goals and action plans. But don’t just stand there–get moving.

Big Idea 2: KEEP YOUR EXISTING CLIENTS HAPPY. Communicate clearly and regularly with them. Ask them how you are doing . . . then listen. Discover their needs and concerns. Respond promptly. Ask yourself, “What is one thing I can do today to improve the quality of service I provide to my clients?” Keep your promises and exceed any expectations you create.

Big Idea 3: CREATE OPPORTUNITIES FOR GETTING NEW CLIENTS. Treat everyone as a potential client or referral source. Let people know you are a lawyer and always carry a business card. Schedule regular contact with past, present and potential clients each month. Inform all your contacts that you make time available for referrals. The more opportunities you create, the more chances you’ll have at actually getting called for an appointment.

Big Idea 4: GO THE EXTRA STEP. Treat your professional and community activities as if they were client matters. Target your efforts and have a reason for investing your time and talents where you do. Get out in public. Meet the type of people you are seeking as clients, promote a political or social interest that you care about, or enhance the quality of life in your community. Write an article to demonstrate your expertise to the client-audience you want to reach. Participate in the bar and become known among local attorneys as one whose efforts enhance the legal profession as a whole. In everything you do, lead, follow or get out of the way.

Big Idea 5: SMILE. Life is short. Celebrate the moment, at least once in a while. In the words of Mother Teresa of Calcutta, “Smile at each other, smile at your wife, smile at your husband, smile at your children, smile at each other — it doesn’t matter who it is–and that will help you to grow up in greater love for each other.” Then you’ll be refreshed enough to go back to Big Idea 1 and start all over again.

Posted in The Practice No Comments »

Rainmakers and the rolodex

Written on February 16, 2004 by David C. Sarnacki

Here’s a 1993 list of “PRACTICAL TIPS ON PRACTICE DEVELOPMENT,” developed by the Marketing Legal Services And Client Relations Committee of the Law Practice Management Section, State Bar of Michigan. The list was compiled by David C. Sarnacki with contributions by: Charles N. Dewey, Jr., Grand Rapids; David J. Fisher, Saginaw; Howard J. Gourwitz, Southfield; Robert S. McKenzie, Mount Clemens; Glenn A. Opperthauser, Huntington Woods; Alan C. Roeder, Farmington Hills; David C. Sarnacki, Grand Rapids; Julie Savarino, Detroit; M. Diane Vogt, Detroit. How many of these tips still apply in 2004? Which work best today? Which do not? Submit your views as Comment to this post.

Client Maintenance

Communicate clearly and regularly with your clients. Talk to them in person and over the phone. Send letters and handwritten notes. Put them on the mailing list for any newsletter or communique. Have breakfast or lunch with them.

Always return client telephone calls that day or within 24 hours at the latest, or have a staff member do so if you are unavailable.

Smile when you answer the phone-you can’t help but sound more pleasant to speak with.

Don’t use a speaker phone unless absolutely essential.

Provide clients with all pertinent documents and correspondence relative to their case, together with a folder to keep them in which has your name, address and telephone number prominently displayed on the cover.

Review all correspondence before it is sent. Review both letters and envelopes for layout, presentation, typos, overall flow. Make sure the client receives a “clean” copy.

Place “Drafted by ______” on all instruments which you have drafted to show you are proud of the documentation and can be contacted if your client is seeking subsequent changes.

Keep your promises. When you mention a date by which a project is to be completed, the client expects it to be done by that date. Meet your client’s expectations.

Listen to clients. Discover their needs and identify their concerns. Respond promptly.

Meet at client’s office once in awhile instead of at your own.

Order a subscription to a trade publication which focuses on your client’s business.

Consider doing business with clients — use their services and products.

Send thank you notes to clients for retaining your firm’s services.

Send a card or newspaper clipping of a client acknowledging an award, promotion, speech.

Send birthday cards and congratulatory cards for special occasions to clients and former clients. Include client’s family members.

Send holiday cards to clients.

Always send a sympathy letter upon the death of someone you know.

Send announcements to clients regarding new legal developments or your own continuing legal education and advancement.

Send notes to clients on new laws or cases that might be of interest to them.

Review your rolodex for contacts you haven’t been in touch with lately.

Create and maintain a complete and accurate mailing list of past, present and potential clients.

Provide understandable and regular invoices to clients. If you have doubt about whether the invoice will be understandable or if there was an unexpected increase in the fees, consider a personal conference with the client or attach a letter or note explaining the invoice. Consider sending personal notes to clients to show how work is being done on their behalf and how much money they are saving.

Send thank you notes to clients for prompt payments.

Ask your clients how you are doing. How does your client feel about the firm’s service? The billings? The quality of work? The client’s relationship with people at the firm? Is there anything else the client wants from the firm?

Create a client survey which can be available in the reception area or be mailed to the clients or delivered to them at the initial interview. Make sure they understand it may be submitted anonymously if they prefer. Be sure to invite them to describe what they think you did particularly well and what they thought you did not do so well.

Require that fee arrangements are given to the client in writing.

Set forth a consistent and professional image.

Clean your office and remove or file all unnecessary clutter and files.

Ask yourself, “What is one thing I can do today to improve the quality of service I provide to my clients?”

Write a “thank you” note to a client when their case is over.

Don’t make clients wait in your office more than five minutes.

Make sure your entire staff projects the proper image to clients and conveys to them that they and their legal matters are of primary importance to you and your firm.

Monitor your receptionist to make sure that impeccable service and manners are displayed and given to clients, both on the telephone and in person. Call your own office frequently to see how clients are greeted (delays, number of rings, etc.).

Tell your receptionist if you expect a client and have the receptionist greet them warmly, by name.

Cross-Selling

Prepare and rehearse an answer to the often-asked question, “What kind of lawyer are you?” Be sure your answer includes the idea that you can help with any legal problem, either directly or through referral to someone else inside or outside your firm.

Inform clients at every opportunity of the full range of legal services that you or others in your firm are capable of providing.

Inform clients who employ others of the full range of legal services that you provide and can make available to their employees.

Inform clients of other services that you or your firm can provide directly or through referrals to experts available to you, even though those services may be non-legal in nature, such as how to invest and handle large settlements.

Start saying “No” to cases that are not good for you. Many lawyers hate to say “No” for fear of losing client base. Learn to recognize the types of cases and clients that will stretch your resources and increase stress.

Targeting

Schedule regular contact with past, present and potential clients each month. Treat these appointments as seriously as court dates. Face-to-face meetings are essential.

Develop a biography file on important clients, potential clients, and referral sources. Record significant information, relationships, dates, interests and activities.

Identify a minimum of one new business contact per month with whom you will have lunch.

Consider writing your witnesses and jurors after trial to thank them for their cooperation, time and service. They may remember you in the future.

When a client needs a witness for a legal document such as a will, consider asking the client to bring friends to your office. Write the witnesses to thank them and to focus their attention on the importance of having a will.

Referral Sources

Treat everyone as a potential client or referral source.

Inform all clients that you make time available for referrals.

When asked, “How’s business?”, never tell a client or potential client that you are “too busy”. This could be interpreted that you are too busy to properly handle a new matter.

Ask your colleagues if you can provide assistance to them.

Entertain other lawyers and persons who are in a position to refer clients.

Find out when your class reunion will be held and plan to attend.

Inform other lawyers or any person who is in a position to refer clients of the full range of legal services you provide.

Provide your spouse with business cards to hand to friends and acquaintances who may mention a legal matter.

Write a “thank you” note when someone refers a client to you.

Whenever you refer business, even if the potential client does not contact your referring lawyer, contact that lawyer by telephone and confirm in writing that you referred the matter. The lawyer will be grateful and might reciprocate, even if the referral lawyer does not receive the business.

Make an effort to reciprocate by referring business to those who refer business to you.

Professional & Community Activities

Get out in public. Become known by joining organizations and attending luncheons and other events. Participate in activities which (a) allow you to meet the type of people you are seeking as clients; (b) promote a political or social interest that you care about; or (c) enhance the quality of life in your community.

Let people know you are a lawyer and always carry a business card.

Select a community activity with a long range perspective. Seek leadership positions within the organization and try to become identified with the organization.

Participate in the bar. Become known among local attorneys and participate in activities that enhance the legal profession, including the delivery of pro bono services.

Sign up for a continuing legal education course in your field or a different one. Make an effort to meet other attendees, especially those who practice in different fields or other cities. Follow up with those attendees, keep in touch, and attempt to refer business to them. They will refer business to you.

Write an article to demonstrate your expertise in a particular field. Consider the audience you want to address (e.g., lawyers, a specific industry, the general public).

Go the extra step. Whether the activity relates to a community organization or a bar activity, volunteer for projects and treat them as if they were client matters.

Collaboration

Collaborate with another attorney in your firm in a joint marketing activity, such as a seminar, luncheon, presentation, article or other similar activity.

Encourage associates to learn the art of rainmaking and the importance of networking by bringing into the firm smaller matters that friends and relatives have. Support associate efforts in referral and pro bono programs.

Posted in The Practice No Comments »

Love light shine on me

Written on February 15, 2004 by David C. Sarnacki

ABCnews reports on the human love drive (excerpt):
The lead researcher of the study, and author of a new book, Why We Love, says scientifically, sex and romance are two different things. And what is commonly thought as the drive for love, explains anthropologist Helen Fisher of Rutgers University in New Brunswick, N.J., is actually three different desires.

“One is the sex drive that gets you out there looking for anything remotely appropriate,” says Fisher. The next is “romantic love, that giddiness of first love that enables you to focus that mating energy and conserve your courtship time. And the third mating system in the brain is attachment.”

The most powerful of the three desires may not be sex but romance, Fisher adds.

“People don’t die for sex,” she says. “I’ve at looked at poetry all over the world, even as much as 4,000 years ago. People live for love, they die for love, they sing for love, they dance for love.”
***
But if romance, not sex, is so powerful and so important in a life, and if the brain scan shows men are activated by romance as strongly as women are, why does romance fade so fast?

“I think it evolved for an important reason,” explains Fisher, “which is to enable to focus your mating energy on one individual at a time, thereby conserving courtship time and energy. We would all die of sexual exhaustion, and we wouldn’t get to our jobs … if we had this intense emotion all of our lives.”

She adds: “I think what goes on generally is you move away from that intense feeling of romantic love into a deeper sense of calm and peace and unity with the person, attachment associated with a different brain system.”

Couples don’t fall out of love, they fall into attachment, she believes. But there is a way of preserving that feeling of romance, suggests Fisher — doing novel things together.

“One thing that I and my colleagues [on this project] have established is that love does change over time. And if you do want to continue that obsession and craving and elation and focused attention on that person, do novel things with him or her. That drives up levels of dopamine in the brain. That’s one of the main chemicals associated with romantic love.”

Posted in Relationships No Comments »

Breaking up is hard to do?

Written on February 13, 2004 by David C. Sarnacki

CNN says “It’s splitsville for Barbie and Ken.”

The AP story explains (excerpt):
***
After 43 years as one of the world’s prettiest pairs, the perfect plastic couple is breaking up. The couple’s “business manager,” Russell Arons, vice president of marketing at Mattel, said that Barbie and Ken “feel it’s time to spend some quality time — apart.”

“Like other celebrity couples, their Hollywood romance has come to an end,” said Arons, who quickly added that the duo “will remain friends.”

Arons denied that there was any truth to rumors that the breakup was linked to the Cali (as in California) Girl Barbie, arriving in stores now. To better reflect her single status, Cali Barbie will wear board shorts and a bikini top, metal hoop earrings, and have a deeper tan.
***
Barbie — the most popular fashion doll in the world, according to toy maker Mattel — met Ken on the set of a TV commercial in 1961, and they have been inseparable ever since.

Arons hinted Wednesday that the separation may be partially due to Ken’s reluctance to getting married. All those bridal Barbie dolls in toy chests around the globe are really just examples of Barbie’s wishful thinking, she explained.

Another possible factor is Barbie’s career. The doll who was “born” Barbie Millicent Roberts in 1959 has been everything from a rock star to military medic . . . .

Posted in Something Different No Comments »

Homework fights

Written on February 12, 2004 by David C. Sarnacki

BBC reports on family arguments over homework (excerpt):
Homework is bad for your family, say researchers, who have found that it causes arguments and upsets.
A study of the impact of homework in different countries says that the pressure of homework causes friction between children and parents.

This pressure is worst in families where parents are most keen for their children to succeed at school.

And the survey claims that homework causes “anxiety” and “emotional exhaustion”.

As a solution, the report suggests that “homework clubs”, which take place after school, are a successful way of getting the benefit of homework, without risking the disagreements associated with homework at home.
***
For parents to make a positive contribution, the report suggests that parents should take a more supportive and less interventionist role, only helping when they are asked.

“Parents have the most positive influence when they offer moral support, make appropriate resources available and discuss general issues. They should only actually help with homework when their children specifically ask them to,” says report author, Susan Hallam.

The report backs the effectiveness of homework clubs, which have become popular in many schools. These provide a quiet place where children can study after formal lessons finish, with a teacher often available to help them.
***
The report also says that the impact of homework on academic achievement is “relatively limited” compared to other factors, such as “prior knowledge, ability, time on task, good attendance at school, motivation and self-confidence”.

Posted in Families/Children 14 Comments »

Cross

Written on February 11, 2004 by David C. Sarnacki

Checklists
CROSS-EXAMINATION:
Considerations:
1. Whether the witness’ testimony has damaged your case.
2. Whether you can reasonably expect to obtain favorable testimony from the witness.
3. Whether there are significant risks in conducting a cross-examination.
Irving Younger’s “Ten Commandments of Cross-Examination”:
1. Be brief (3 points or less).
2. Use short questions and plain words.
3. Always use leading questions.
4. Always know the answers.
5. Listen to the answers given.
6. Don’t quarrel with the witness.
7. Don’t let the witness repeat his or her story.
8. Don’t let the witness explain anything; keep control; make the principal assertions and statement of facts and have the witness agree with you.
9. Don’t ask one question too many; stop.
10. Save the ultimate point for summation.
Preparation:
Consider probable testimony, including exhibits.
List constructive facts.
List possible destructive facts.
Determine last line of questioning (safe and significant or forcefully stating own position).
Determine first line of questioning (significant constructive facts).
Establish all constructive facts:
Emphasize favorable positions of direct examination testimony.
Corroborate parts of own case.
Obtain admissions.
Atack credibility (consider how to prove if necessary):
- Witness (motive, bias, interest, prejudice).
- Testimony (perception, recollection/memory, communication).
- Conduct.
- Prior inconsistent statements.
- Prior bad acts.
- Prior convictions.
- Reputation.
Organize logically (issues or themes) but, if possible, not chronologically.
Revise to tell a story.
Be aware of how you will be perceived.
Insert witness-control questions at the beginning of each new line of cross-examination.
Plan for use of exhibits.
Be ready to adjust on basis of direct examination.

Posted in Persuasion/Advocacy No Comments »

Changing the narrative, embodying the story, sharing the belief system

Written on February 10, 2004 by David C. Sarnacki

The New York Times strives to move us inside “Persuasion’s Secrets.”

Francine Parnes writes (excerpt):
Howard Gardner, a psychologist and professor of cognition and education at the Harvard Graduate School of Education, is known for his theory that people have several kinds of intelligence. In his new book, he tackles the age-old riddle of how to change people’s minds. As any marketer, manager or politician can tell you, not to mention anyone who has ever shared a roof with someone else, that can be a challenge.

But it is not impossible, if you pull the right “levers” to dislodge set ways of thinking, according to the book, titled “Changing Minds: The Art and Science of Changing Our Own and Other People’s Minds,” due in April from the Harvard Business School Press. All seven of these levers have names beginning with “re-.” When you use the “resonance” lever, the points you make should feel right to the people you are addressing, he says. Then there are reason, research, “representational redescriptions” (presenting the same idea in various formats – through speech, pictures and deeds, for example) and “resources and rewards” (positive reinforcement). Finally, you can invoke “real-world events,” like terrorist attacks, that can drastically affect how people think, and strive to counter people’s “resistances” to changing views.

One arena where opinion can die hard is politics. So how could Howard Dean change the public perception that his outburst on the night of the Iowa caucuses showed that he had become unhinged? “The original prototype is Nixon’s ‘Checkers’ speech, the grandfather of all televised mind-changing enterprises,” Professor Gardner said. “But whether it’s Nixon denying having taken money, or Clinton dealing with charges of having an affair or Dean dealing with the charge of being out of control, the issue is: How do we bring former supporters back to the flock and defang the resistance?

“The answer is: You try to develop a story about yourself that is different from the one that the press is carrying, a different narrative,” he continued. “Nixon converted it into a family story about ‘our dog Checkers’ and the good Republican cloth coat; Clinton said, none of us is without sin, but look at the great family you’ll be getting in the White House.” Beyond that, Professor Gardner said, “you have to embody the story you’re telling.”

The approach can work in business. “Say the new C.E.O. comes in and says, ‘We are not going to be hierarchical anymore,’ ” Professor Gardner said. “But you’re the longtime regional product manager who’s thinking, ‘We’ve heard it before.’ ” But if the chief “spends a third of each week walking around the plant or office listening attentively to the staff, starts implementing their suggestions and closes the executive dining room, then that’s what I call embodying the story.”

Warren Bennis, a professor at the University of Southern California’s Marshall School of Business who specializes in leadership issues, says the book cuts to the core of what people in positions of influence do to get there, what he calls “including and engaging people in a shared belief system.” . . .

Posted in Persuasion/Advocacy No Comments »

ABA standards on electronic discovery

Written on February 9, 2004 by David C. Sarnacki

The February 6, 2004 ABA Journal e-Report carries an update on efforts to create standards on electronic discovery.

Jason Krause writes (excerpt):
The Litigation Section’s Task Force on Electronic Discovery is taking comments on its draft amendments to the discovery standards. “The one big problem is that most discovery happens under the radar screen,” says Gregory Joseph, an attorney in New York and co-chair of the task force. “There are maybe a dozen decisions on the subject, not all of equal quality. These rules are intended to help level the playing field for lawyers who may not have experience in e-discovery.”

The draft was designed to address three primary issues: allocating the cost of electronic discovery, altering or destroying evidence, and handling privileged information. Standards exist for such issues in the paper world, but there are new issues associated with electronic evidence.
***
Joseph acknowledges that it may be impossible to codify the best way to handle electronic discovery, but argues that the standards are needed to help clarify a difficult issue. “This is obviously an area of law that’s moving faster than the rules can be written. Even moving at light speed, the rule-making process takes two years,” Joseph says. “I think the point of what the ABA is doing is to issue a set of best-practice guidelines that will evolve over time.”

There are five proposed rules. The first concerns preserving and producing electronic documents, and includes a checklist of all the places electronic documents can be found. It also has an expanded list of factors that courts should consider when deciding how to allocate the costs of discovery. They include the cost of producing the documents compared to the amount in controversy, the need for the discovery, the importance of the issues, and the resources of each party compared to the costs of production.

The second rule provides that in appropriate cases, some or all of the discovery materials should be converted to electronic format. The third concerns the need to confer about electronic discovery at the initial discovery conference.

The fourth rule deals with how to protect attorney-client privilege and attorney work product. Among other things, it suggests parties stipulate to the appointment of a technology consultant as an agent of the court to review documents for privileged data. Disclosure of such documents to the consultant or other parties would not constitute a waiver.

The final rule recognizes that new storage technologies may not be electronic and says the discovery standards still should be consulted when data is stored in a new form.

Joseph says cost-sharing was considered the least important issue because several court cases have addressed it, creating a solid body of common law from which to draw guidelines.

The most notable case is Zubulake v. UBS Warburg, 02 Civ. 1243 (S. Dist. of N.Y., May 13, 2003), in which the judge has published four separate rulings on the subject. Judge Shira A. Scheindlin modified a test that has often been used to determine how to split the cost of producing electronic files between litigants. She held that courts must consider factors such as the likelihood of discovering critical information and the cost of the document production compared to the amount in controversy and compared to the resources available to each party.

Posted in Procedures/Rules 1 Comment »