Tuesday, September 15, 2009

Politics and Puffery

We have all experienced puffery, although some may not be familiar with the term itself. "Puffery" is an exaggeration or statement that no reasonable person would take as factual. Typically occurring in advertising and sales, the fact that a statement is not believable means that you cannot sue someone for saying it. For example, "This is greatest car ever made" is an example of puffery, and if you buy the car and discover it isn't the greatest car ever made, you cannot sue over it.

The most common example of puffery besides sales is in resumes and job applications. There was an attorney who left our firm and, applying for other jobs, billed himself as experienced in ERISA transactions. Technically true, but the experience consisted of getting COBRA notices after being canned.

Among resumes and job applications, the worst subset has to be political biographies. These magnify every kid with a lemonade stand into a "job-creating small business owner" and anyone who flips off a light switch into a "green energy activist."

With the 2010 election season beginning to form like a high pressure system over the Rockies, we're going to hear a lot of biographical puffery from candidates.

Gretchen Whitmer? No exception.

Whitmer, the attorney general wannabe, describes her background in part as follows:

Prior to her election to the Michigan House of Representatives, Whitmer was a corporate litigator specializing in administrative and regulatory law with the firm Dickinson Wright in Lansing, Michigan. She practiced administrative law before the Ingham County Circuit Court and the Michigan Public Service Commission.

Sounds pretty good, right? When you look at the facts, not so much.

Whitmer was licensed in November of 1998. She was elected to the House of Representatives in 2000. So, she practiced law for about two years, although much of that time she was campaigning for the House seat.

Whitmer was employed as a lawyer by Dickinson Wright, a large, well-respected, politically heady firm with an office in Lansing. During her first two years out of law school, however, Whitmer was undoubtedly squirreled away in an office somewhere, drafting discovery responses or writing motions and briefs for the attorney who actually went to court and argued. Of course, to figure out how many cases Whitmer appeared on for her clients is a difficult task, since trial court dockets are not searchable by attorney. But we can search a surrogate database -- the Court of Appeals.

A busy attorney ends up in the Court of Appeals, either trying to get a ruling overturned, or trying to keep a judgment intact. The Court of Appeals' records are searchable by attorney, and a search for Whitmer's involvement results in zero -- as in ZEE-ROH -- cases. For contrast purposes, your humble Wizard has had 42 cases in the Court of Appeals, more than most, but far fewer than some. For someone running for attorney general, 42 is a respectable number, but zero is a joke.

Michigan law describes the duties of the attorney general. Primarily:

The attorney general shall prosecute and defend all actions in the supreme court, in which the state shall be interested, or a party; he may, in his discretion, designate one of the assistant attorneys general to be known as the solicitor general, who, under his direction, shall have charge of such causes in the supreme court and shall perform such other duties as may be assigned to him; and the attorney general shall also, when requested by the governor, or either branch of the legislature, and may, when in his own judgment the interests of the state require it, intervene in and appear for the people of this state in any other court or tribunal, in any cause or matter, civil or criminal, in which the people of this state may be a party or interested.

Clearly, these are significant and important responsibilities. Am I alone in thinking that maybe, just maybe, it's a good idea to have an attorney general who knows where the courthouse is and has actually tried a case or argued one in the Court of Appeals?

When you're selling a car or trying to impress that special someone, puffery is an old and time-honored strategy. Isn't it about time, though, that we demanded more from our elected officials?


  1. To be fair, an attorney practicing "administrative and regulatory law" is much less likely to end up in appellate court.

    Further, do not large firms and large gov't offices have appellate specialists who would be the attorney of record for any appeal rather than the trial court counsel? I wonder how many appellate decisions before 2003 bore the name "Mike Cox" as the counsel of record.

    Finally, appellate decisions alone do not reflect the extensiveness of litigation experience. In my career I have had first chair responsibility for well over 150 circuit court cases and have zero appellate decisions. That reflects the nature of my practice (heavy summary judgment rate and per curiam appellate decisions), not the extent of it.

    This is certainly not to say that Whitmer isn't guilty of the puffery you charge. She almost certainly is. But one suspects that there is better evidence of her puffery than appellate decisions.

    I'd be much more interested in her first chair litigation experience.

    But that reflects my own experience.

  2. Anon -- No question that first chair experience is a better indicator, but that's extremely difficult to come by. The appellate records would show her even if she wasn't the attorney who argued, but if she was listed as an attorney of record. And, I did not search appellate decisions, I searched the Court of Appeals docket by Whitmer's bar number, which yields all cases on which she appeared, regardless of the nature of the case or whether the court published a decision. Further, while her MPSC work may not have yielded much in the way of appealable cases, certainly her corporate litigation in the Ingham County Circuit Court would have provided some opportunity to get to the court of appeals. And the pre-2003 number for Mike Cox: 16.

    Thanks for reading and for commenting. I appreciate thoughtful comments like yours.