Columns

Plunkett Cooney partner Frank T. Mamat was recently reelected to the board of directors of the Jewish Bar Association of Michigan (JBAM), of which he is a founding member. It is a two-year term.

Co-founded in 2014, the JBAM is celebrating its 10th anniversary of providing and unifying Jewish and other like-minded attorneys, judges, paralegals, and law students in Michigan by offering educational, social and charitable activities.

A partner of Plunkett Cooney, one of the Midwest’s oldest and most accomplished law firms, Mamat utilizes his more than 50 years of experience to help companies, contractors, employers, lawmakers and trade associations resolve union matters. His expertise includes contract negotiations, elections, union avoidance and labor arbitrations. Additionally, he advises clients on noncompete agreements, unfair labor practice litigation, harassment suits, wage and hour issues and OSHA-MIOSHA safety matters.

Mamat’s experience also includes the resolution of National Labor Relations Board matters, attempted union organization, mass picketing and violence, and secondary boycotts and pressure. His
clients also rely on his counsel and advice on ERISA trust funds and related fiduciary liabilities.

Mamat is listed in Best Lawyers in America, Michigan Super Lawyers, DBusiness magazine’s Top Lawyers, the Labor Relations Institute’s Top 100 Labor Lawyers in the U.S., The American Lawyer’s Top Lawyers, and The American Registry’s Top Lawyers in Michigan.

Mamat received his undergraduate degree from the University of Rochester in 1971 and his law degree from Syracuse University College of Law in 1974.

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Michigan Defense Trial Counsel is pleased to announce its 2024-2025 officers:

President John C.W. Hohmeier, Scarfone & Geen PC
Vice President Frederick V. Livingston, Novara Tesija & Catenacci PLLC
Treasurer Richard J. Joppich, Kitch Attorneys & Counselors PC
Secretary Michael J. Cook, Collins Einhorn Farrell PC

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Kitch Attorneys & Counselors is pleased to announce that Terence Durkin has been appointed to the Human Resources & Workforce Council for a one-year term by the Michigan Health & Hospital Association (MHA).

Durkin’s practice blends labor and employment law with medical malpractice and general litigation. His experience gives him the ability to help clients sort through the challenging and ever-changing world of labor and employment rules and regulations.

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Butzel attorney and shareholder Mitchell (“Mitch”) Zajac was elected chair of the Cooley Law School Board of Directors. He joined Cooley’s Board of Directors in 2020 and was elected vice-chair in 2022.

Zajac is a member of Butzel’s Litigation and Dispute Resolution Practice Group, one of the firm’s largest practice areas. His practice also includes a focus on automotive, intellectual property, regulatory and emissions compliance, and sports law, to name a few. He is a registered patent attorney with the United States Patent and Trademark Office.

He has practiced in six federal courts, the U.S. Patent Office, the Court of International Trade, and the U.S. International Trade Commission. Zajac has helped several clients manage and craft IP portfolios in other unique industries, like medicine, light-weighting, and industrial manufacturing. He also has experience in complex patent, trade secret and commercial litigation cases.

Zajac was included in DBusiness magazine’s 2022 Class of “30 in Their Thirties.” He also was named to DBusiness magazine’s Top Lawyers of Metro Detroit, Intellectual Property and Patent Law, 2021, 2022 and 2023, Patent Litigation, 2023. He was named by 760 WJR and the Detroit Economic Club to the Class of 2023 Rising Stars, comprised of 10 local leaders under the age of 40 who are making an impact in their industries and communities.

He attended Cooley Law School (2017) after graduating from Western Michigan University with Bachelors’ degrees in Mechanical Engineering and German (2012) and a Master’s in Mechanical Engineering (2013).

Zajac was a Rhodes Scholar finalist (2012); interned for Congressman Fred Upton; and was a four-year starter on the Division 1 football team at WMU. Zajac was named to Michigan Lawyers Weekly’s 2020 Class of Up & Coming Lawyers. He also received the Detroit Bar Association’s “One to Watch” Award in 2019. Zajac has been named to Best Lawyers in America: Ones to Watch, Commercial Litigation, 2022, 2023 and 2024.

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Bodman PLC is pleased to announce that the firm, and 28 current Bodman attorneys, have been included in the State Bar of Michigan’s 2024 A Lawyer Helps Pro Bono Honor Roll.

The Honor Roll recognizes individual attorneys, law firms, and corporations that support access to justice efforts by providing pro bono legal services to low-income individuals and families, and to organizations that benefit low-income communities, throughout Michigan. The various award categories are based on time devoted to pro bono matters during 2023.

Bodman was one of only three law firms recognized at the highest “Tier 1” level for cumulative firm hours devoted to pro bono matters for the year.

Individual attorneys are recognized for having devoted at least 30, 50, or 100 hours to pro bono service during 2023. The following local Bodman attorneys are included in the 2024 A Lawyer Helps Pro Bono Honor Roll.

—100+ Hours of Service

Fatmeh T. Cheaib (Detroit office)
Julie E. Nichols (Troy office)

—50 to 99 Hours of Service

Barbara A. Bowman (Troy office)
Grace A. Connolly (Detroit office)
Matthew R. Fleming (Troy office)
Angela M. Quinn (Detroit office)
Alexis A. Smith-Scott (Detroit office)
Glen M. Zatz (Troy office)

—30 to 49 Hours of Service

Celeste E. Arduino (Troy office)
Rebecca El Badaoui (Detroit office)
Amanda McSween Empey (Detroit office)
Brigid D. Fox (Troy office)
Joseph R. Haddad (Detroit office)
Jennifer M. Hetu (Troy office)
Jay B. Long (Detroit office)
Rebecca C. Seguin-Skrabucha (Troy office)
Matthew A. Slipchuk (Detroit office)
Katherine A. Smigelski (Detroit office)

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Miller Canfield is pleased to announce that the firm has expanded its Employment and Labor Group with the addition of Senior Attorney Kyle Bierlein and Associate Attorney Eftiola Greco.  

Bierlein comes to the law firm after serving as Michigan assistant attorney general, advising state clients in matters involving hiring practices, discrimination and harassment, employee discipline and termination, and employer policies and handbooks. He previously served as chief law clerk for the Michigan Department of Attorney General in the Children and Youth Services Division in Wayne County.

Bierlein is a graduate of Wayne State University Law School and Oakland University.

Greco’s experience includes advising and representing clients on a range of litigation and regulatory matters. Her previous experience includes work for the Detroit City Council as a senior policy advisor, and serving as the City of Detroit Board of Ethic’s general counsel and the City of Detroit’s assistant corporation counsel.

A graduate of Michigan State University College of Law and Wayne State University, Greco is the vice president of the Albanian American Bar Association of Michigan and is a member of the Detroit Bar Association and the Women Lawyers Association of Michigan.

By Marie E. Matyjaszek

Gun violence is at the forefront of every election, political and legal conversation, and provisions relative to gun safety find their way into domestic relations orders at times. Michigan recently enacted the secure storage law, Public Act 17 of 2023, effective February 13, 2024, aimed at reducing unintentional gun deaths and injuries.

According to the U.S. Centers for Disease Control and Prevention (CDC), there were more than 48,000 firearm related deaths in the United States in 2022, and firearm injuries were in the top five leading causes of death for individuals aged 1 to 44, and the greatest cause of death for those aged 1 to 19.

To help combat this, the new law requires that an individual in control of the premises they are on, who leaves a firearm unattended where he’s aware a minor is or likely to be present, must store it in a locked box or keep it unloaded and locked with a locking device rendering it inoperable. If you are on someone else’s property, you can also store the firearm in your vehicle in a locked box, or keep it unloaded with a locking device. You must lock your vehicle.

Penalties for violations of the law increase depending on what happens with the weapon after a minor obtains it. Like most laws, there are exceptions, such as minors who have the firearm with their guardian’s permission, use it for work, farming or target practice.

Obligations are also set forth for federally licensed firearms dealers who sell in the state of Michigan. If any of this law applies to you or your clients, read the entire statute carefully to ensure compliance.

Individuals can request free gun safety kits through Project ChildSafe by going to its website. After filling in the desired location, a list of participating law enforcement departments will display. Gun safety is imperative to saving lives, and compliance with the new law is extremely important in meeting that goal.
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Marie E. Matyjaszek is a Judicial Attorney at the Washtenaw County Trial Court; however, the views expressed in this column are her own. She can be reached by emailing her at matyjasz@hotmail.com.

By J.J. Conway

Years ago, I had an unexpected meeting with a gentleman who worked high up in the benefits department of an automotive manufacturer before ERISA’s enactment. He had an encyclopedic knowledge about the run up to the law’s passage in 1974 and the opposition the law faced. Almost every interest group was against ERISA – the automakers, the unions, most private companies, and even state and local governments. Its passage is something of a legislative miracle. What I remember most about our conversation was his response when I asked him what happened after ERISA passed. He said his company set the lawyers loose to shape the law the way they wanted it interpreted.

Perhaps, it’s not surprising then that ERISA can be a tough law for the very people it was meant to protect. Federal courts routinely cited “policy reasons” for restraint in construing the law’s protections. Courts took the view that employees should be thankful for the benefits they had since ERISA did not actually mandate the providing of any benefits. (ERISA only imposed standards on plans once they offered benefits to employees). To compound matters, the federal courts crafted difficult legal burdens to overturn discretionary decisions by an employee benefit plan. Nowhere were the judicial obstacles more pronounced than in the area of disability income replacement benefits.

Looking back on it now, it is interesting that two cases involving two hardworking and successful employees were able to push past these obstacles and improve the lives of many others trying to secure disability insurance benefits. I had the good fortune to work with these two remarkable women and witness firsthand their resolve in fighting against difficult odds.

The first case involved the claims of Sherry DeLisle, the chief financial officer of a luxury jeweler. Sherry had been seriously injured in an automobile accident that left her occupationally disabled. Despite her physical limitations and concentration difficulties, Sherry was trying to push through her pain and cognitive issues. Her work was complex, and she was having trouble keeping up. She was ultimately fired for non-performance of her job.

Sherry filed a claim for disability benefits and asserted that she was functionally disabled while still working. She argued that her diminished performance was evidence of her disability after years of accolades, bonuses, pay increases, and promotions. Her benefit plan’s insurer denied the claim.

The insurer claimed Sherry had no coverage since she had been terminated by her employer. The case went to full briefing in a federal district court. Sherry won. But the court allowed the insurer to reprocess the claim and decide whether Sherry was, in fact, occupationally disabled, despite her being off work and later being deemed disabled by the Social Security Administration.

Reviewing her claim a second time, the insurer now claimed that Sherry was “not disabled” based on the file reviews of several physicians working for the insurer or under contract with the insurer. Sherry countered with multiple treating physicians, considerable objective evidence showing extensive hardware and spinal repair, cognitive tests, and affidavits. Again, the insurer upheld the denial. Sherry went back to federal court and challenged her disability insurer’s claims practices. Sherry’s case spanned more than seven years before two different trial court judges and the U.S. Court of Appeals for the Sixth Circuit and a full en banc briefing.

When it was over, Sherry’s case established the “evaluation of factors” analysis in ERISA long-term disability cases. DeLisle v. Sun Life Assurance Company of Canada, 558 F.3d 440 (6th Cir. 2009). This was a key development because it established a framework for analyzing these types of claims. A reviewing court would now look at different evidentiary factors and decide whether a participant was entitled to benefits or whether an insurer abused its discretionary decision-making authority. It also helped make sense of the Supreme Court’s ruling in MetLife v. Glenn, 554 U.S. 105 (2008), a case that originated in the Sixth Circuit. See also “Refining Wilkins: A 20-Year Look at the Factors Used in the Sixth Circuit’s Resolution of Disability Claims Under ERISA,” 34 W. Mich. U. Cooley L. Rev. 2018.

Years later, the Sixth Circuit decided Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879 (6th Cir. 2020). Cheryl Wallace, a decades-long nurse and medical volunteer, contracted a serious infectious disease while traveling abroad. Cheryl became seriously ill and was unable to return to work. Her employee plan denied her claim, arguing that she did not exhaust her pre-suit remedies.

A “failure to exhaust” defense was reflexively asserted in nearly every ERISA claim, and its application was uneven at best. Some cases would be dismissed with prejudice for a failure to exhaust.

Other cases would be sent back to the plan by the court to allow a participant to exhaust their remedies. The exhaustion doctrine was commonly used as a technical defense to sink an otherwise valid claim by missing a step in the pre-litigation process.

Cheryl challenged the exhaustion doctrine in federal court. She argued that if an insurance company was going to insist that a plan participant exhaust their remedies, it had to write that requirement into its contract. Otherwise, there was nothing to require Cheryl — or any other plan member — to take this step. Interestingly, in the nearly fifty years since ERISA had been around, this issue had not been decided at the appellate level.

Cheryl prevailed with the U.S. Court of Appeals for the Sixth Circuit finding that if a benefit plan did not require exhaustion of remedies, it was no longer required. The reasoning in her case was adopted by the Eighth Circuit Court of Appeals, and there has not been a decision holding otherwise to date.

Neither Sherry DeLisle nor Cheryl Wallace set out to change the law. Rather, they both had a contractual dispute in need of a resolution. Both were provided opportunities to resolve their claims by pursuing early settlements. Somewhere along the way something changed. Their cases stopped being about their own individual claims. They took a broader view, despite the financial hardship. The idea of helping others became more appealing and entered into their approach to litigation.

There are risks to this approach. There are also rewards. And when the decision to go big ends up changing the way things are done, there is a kind of magic that happens. And it is something to behold when a client can experience it, just like Sherry DeLisle and Cheryl Wallace did.
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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.

By Berl Falbaum

The following column can be classified as insensitive in the aftermath of the assassination attempt on Donald Trump.

Surely, this is no time to place blame but: while calling for the country to unite, Trump’s followers are wasting no time in accusing President Biden for inciting the shooting.

Thus, it is important to examine Trump’s record in creating an atmosphere for violence.  As Sasha Abramsky wrote in The Nation after the shooting:  

“To be absolutely clear, there is no politician in America today who has done more to stoke political violence than Donald J. Trump. And that is as true today as it was before the attempt on his life.

“Trump has gloried in a language of political violence for the better part of a decade, demonizing his political enemies and taking politics up to and beyond the boiling point.”

Here are just a few examples of Trump’s violent rhetoric:

—In March 2016 when a man was roughed up while protesting at a Trump rally, Trump said such attacks on protestors were “very, very appropriate” and the kind of action “we need a little bit more of.”

—In August 2016, he urged his supporters to “knock the crap” out of opponents and he would pay the legal bills.

—In August 2016, he seemed to suggest that gun advocates attack Hillary Clinton, stating: “If she gets to pick her judges, nothing you can do, folks.  Although the Second Amendment people —
maybe there is, I don’t know.”

—April 2020: Following armed anti-pandemic lockdown protests at several state capitals, Trump tweeted: “LIBERATE MINNESOTA!” “LIBERATE MICHIGAN!” and “LIBERATE VIRGINIA, and save your great 2nd Amendment. It is under siege!”

—In May 2020, Trump, in response to protests over the murder of George Floyd, tweeted: “When the looting starts, the shooting starts.” Former Defense Secretary Mark Esper wrote in his memoir
that Trump asked, “Can’t you just shoot them?  Just shoot them in the legs or something?”

—In August 2020, he defended a teen-age supporter who shot three people at a Black Lives Matter protest, and at the first presidential debate of the 2020 election, he declined to condemn white supremacists.

—In September 2020, when police killed a self-described Antifa member suspected of killing a right-wing activist, Trump said, “That’s the way is has to be. There has to be retribution.”

—In October 2020, after the FBI foiled an attempt to kidnap Michigan Gov. Gretchen Whitmer, Trump said on Fox News, that Whitmer “has to open up” and “wants to be a dictator,” using the
language of those arrested in the foiled plot.

—He incited the January 6, 2021 insurrection, called the rioters patriots and promised, if elected in November, to pardon those serving prison terms, insurrectionists who erected gallows on the west front of the Capitol to hang Vice President Mike Pence.

Shortly before the insurrection, in his speech to the rioters, he told them: “To fight like hell.  And if you don’t fight like hell, you’re not going to have a country anymore.”

—The January 6 select committee investigating the insurrection heard testimony that Trump expressed support for hanging Pence for not violating the Constitution by certifying the 2020 election.

—On a taped interview with ABC’s Jonathan Karl, Trump said that calls for Pence’s hanging was, “…common sense, Jon. It’s common sense that you’re supposed to protect.”

—In October 2022, he mocked Paul Pelosi, the husband of former House Speaker Nancy Pelosi, who had his head bashed in with a hammer by a far-right conspiracy theorist.

—In September 2023, Trump suggested that outgoing Chairman of the Joint Chiefs of Staff, Army General Mark Milley, who served more than 40 years in the military, was a traitor who deserved to
be executed after Milley made a call to China, assuring its leaders that the U.S. had no plans to attack their country.

—In March 2024, Trump charged there would be a “bloodbath” in the country if he is not elected in November.

In addition, all his rallies had overtones of violence whether it involved attacks on opponents, protesters and demonstrators in cities or, of course, migrants.

Hold your emails. None of the above is designed to excuse, justify or defend the attempted assassination. It is to be condemned forcefully and in the strongest terms. The frequent use of “unacceptable” to describe the shooting does not do it. The use of “unacceptable” is appropriate when someone doesn’t wipe their feet when they come into your house.

But if we are to work to temper political rhetoric, we need to understand the source. We need to find the political vein which is leaking hate in order to cauterize it.

Most important, at this point, we do not know the motivation of the shooter. He may not have acted on a depraved political rationale.

But, regardless, the man who helped fuel the raging fires in our political climate with inciteful language will now be the recipient of the sympathy vote.
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Berl Falbaum is a veteran journalist and author of 12 books.

Schneiderman & Sherman PC is pleased to announce the addition of Indra Pandiyaraj to its team of attorneys.

Pandiyaraj joins the firm as an associate attorney, bringing with her real estate and legal experience along with an international perspective.  She will play a part in managing a caseload of complex litigation matters while overseeing the attorney group to ensure efficient case distribution and workload management. Her responsibilities will include providing strategic advice and counsel to both clients and staff on litigation-related issues.

Prior to joining Schneiderman & Sherman PC, Pandiyaraj served as an associate attorney at Soble Law PLC, in Farmington Hills, where she independently managed a caseload of complex real estate and financial disputes. Her commitment to public service and community advocacy is additionally reflected in her tenure at Lakeshore Legal Aid in Detroit where she held the role of supervising attorney for the Detroit Eviction Team, ensuring legal representation for clients.

Pandiyaraj graduated from TamilNadu Dr. Ambedkar Law University in India. Upon her relocation to the United States, she embarked on furthering her legal career, obtaining an LLM in Corporate & Finance Law from Wayne State University Law School in 2018.

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Miller Johnson leads the State Bar of Michigan 2024 A Lawyer Helps Pro Bono Honor Roll with 14 attorneys receiving Tier 1 recognition (100+ Hours of Service), the most of any law firm in Michigan.

The firm is being honored for its service to low-income individuals and families throughout Michigan in pro bono and access-to-justice issues. Twenty-nine Miller Johnson attorneys are listed on the Honor Roll.

The attorneys are recognized on the Honor Roll for their pro bono hours from the 2023 calendar year, including the 14 who contributed 100+ of service, 6 who contributed 50-99 hours of service and 9 who contributed between 30-49 hours. Below are local Miller Johnson honorees:

—Pro Bono Tier 1 (100+ Hours of Service)
    Breanne N. Gilliam
    Emily C. Palacios

—Pro Bono Tier 2 (50-99 Hours of Service)
    Stephen T. Reaume

In firm honors, Miller Johnson is recognized as a Tier 1 provider for having contributed between 4,000 and 5,999 total firm pro bono hours. Miller Johnson is one of only two honorees with 30-49 Hours of Pro Bono Legal Services per Attorney Average.

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Dickinson Wright is pleased to announce that fourteen attorneys within the firm are listed in the 2024 IP Stars by Managing Intellectual Property. The firm received a “Highly Recommended” rating for its Patent Prosecution, Patent Disputes, and Trademark practices in Michigan, and a “Recommended” rating for its Intellectual Property practice in Nevada.

Below are the local Dickinson Wright attorneys who are listed as 2024 IP Stars:

—Troy
    William H. Honaker, Patent, Copyright, and Trademark Star
    Steven L. Oberholtzer, Patent and Trademark Star
    Daniel D. Quick, Copyright and Trademark Star

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The State Bar of Michigan has recently released the annual “A Lawyer Helps Pro Bono Honor Roll” and recognized Kitch attorneys John Sier and Joslyn Iafrate. The 2024 Honor Roll acknowledges attorneys who have provided pro bono legal services to low-income individuals and families across Michigan.

Sier leads the firm’s commercial litigation practice, bringing more than three decades of experience. He focuses on resolving commercial, healthcare, and construction contract disputes.

Iafrate, a principal at the firm’s Detroit office, specializes in medical malpractice defense litigation and premises liability defense.

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After nearly 40 years, Maddin Hauser has moved its offices minutes from its former space.  The firm’s new modern offices are located at One Towne Square, fifth floor, in Southfield.

By John F. Sase
Gerard Senick, editor
Julie Sase, copy editor
William Gross, research

“Fewer than 25 percent of American households are made up of a married man and woman with their children. Therefore, what do families look like now?

—Cris Beam, “The Changing American Family,” American Baby Magazine, May 2005

For contrast, let us return to the year 2000. That year marked the first time that less than 25 percent of American households existed as a married man and woman along with one or more of their children. This represents a twenty percent decrease from 45 percent that occurred in 1960. This number decreased again to around 20 percent in 2010. In our common reality in big cities and in smaller towns, we find that families became single moms, stepfamilies, boys and girls not getting married, and a turn to foster parents with two fathers or two mothers. They have formed a village in real life in which families have become richly diverse.

The Value of Lost Household Services represents a significant economic factor in wrongful death as well as debilitating personal injury cases. Whether we admit or not admit such losses as the evidence in any specific case, the Value of Lost Household Services accounts for significant proportions of total economic loss. Such proportions may range from zero to the greatest amounts of economic damages in a lawsuit.

The nuclear families of the past usually contained some members who were not employed full-time outside of the home. However, these family and near-family members have tended to assist as caretakers-at-home for the children, adult invalids, and the post-employment elders of families. Due to economic changes and the increasing opportunities for women in the workplace, most families have been left short of the luxury of a pair of spare hands. Increasingly, the roles of caretakers have redeveloped as commercial services obtained in the marketplace.

Many attorneys handle cases of wrongful death, debilitating personal injury that leads to a diminution of capacity, or both. The total economic loss in such cases appears to strongly affect the Value of Lost Household Services.

Let us explain further. The concept of Lost Household Services benefits affects attorneys as well as other legal professionals. Therefore, in our column this month, we present an overview of valuing Household Services along with a discussion of the inherent problems in measuring them. Furthermore, we address the commonly accepted methods and data sources used by economists in these calculations.

How We Do It

Forensic Economists rely heavily upon standardized (though complex) tables that summarize both the average hours worked in employment outside and inside the home. Work at home also includes the hourly Household Services and the value thereof. These tables come to us through survey samples and analyses using methodology from Economics and the other Social Sciences. Such sources that we rely upon the most include the time-diary data in the American Time-Use Survey (ATUS) and various wage surveys that the U.S. Department of Labor, Bureau of Labor Statistics produces and publishes.

The stratified and segmented samples used represent the broad cross-section of the U.S. population. The most notable determinants in our measurement of Household Services include gender, age, and work status. The nature of these services varies over time and depending on the family situation.

Across all age groups in two-adult households, the ongoing research results indicate that women work more hours performing Household Services than do men. Furthermore, this phenomenon continues to endure whether we include minor children in the household and whether both adults work outside of the home, or attend advanced education full-time, part-time, or not at all. In order to achieve greater accuracy and specificity for individual cases, researchers stratify and segment large samples using critical characteristics in science. Though we use numerous segmentations and stratifications for Forensic-Economic determinations, many exceptions to the norm continue to exist. Furthermore, this norm continues to shift over time. However, some determinations remain the same, or at least similar over time and location.

Family Examples

Let us consider a basic example: We consider a married male who works full-time while the spouse is not employed outside of the home, though has at least one child under thirteen years of age.

The male in question averages twenty-two hours of household service work per week. In contrast, a married female characterized as a homemaker with a youngest child under thirteen. She may complete more than fifty-three hours of homemaker work per week. In contrast, a married male-female couple, with each one under the age of forty-five though having no minor children, averages twenty-one hours of household services for the female and fourteen for the male. For a similarly situated couple in which both parties are retired, the household work averages thirty-three hours for the female and twenty-three hours for the male. Interesting data!

However, extenuating circumstances provide exceptions. These include older dependents who become physically or mentally challenged. Generally, we consider attendant responsibilities for dependent children until their eighteenth birthday. We note that the degree of attendant responsibility for minor children varies with age. Therefore, we distinguish among pre-adolescents under thirteen years of age, adolescents at age thirteen- through seventeen years old, and young adults, eighteen years old and older. As a result, these stati emerge as separate groups.

In measuring the tasks that each of us performs during an average day, two categories of services command center stage in Forensic Economics. These are Household Production and Caring and Helping. Measuring time for other daily tasks, including personal hygiene, dressing, and eating meals, arises only in severe impairment, such as para- or quadriplegic. Any value that applies to these tasks falls under the market cost of necessary Attendant Care.

The concept of standard categories for services has led to the development of twelve time-use subcategories, seven for Household Production and five for Caring and Helping. We define Household Production as routine work done around most homes. Under this heading, we include work done inside the home; cooking food and subsequent clean-up; maintenance of pets, homes, and vehicles; household management; shopping for goods; obtaining services; and travel for household activity.

The Bureau of Labor Statistics (BLS) reports survey averages of time worked for each subcategory. The Bureau also reports the sizes of the 200 subpopulations studied as well as the size of the responding sample for each. However, Forensic Economists may interview a client or his/her close family member(s) directly when gathering case-specific information. The purpose of these investigations? To ascertain hours for life situations that fall outside the normal bounds of the collected data and to determine remaining capacity on an item-by-item basis in cases of disabling injury. This practice aims to ensure greater accuracy, objectivity, and transparency in a cost-effective manner.

Sometimes, a Forensic Videographer may record a “day in the life” of a client that provides even greater detail and a human connection. These recordings may illustrate the magnitude of physical impairment in a way a jury can empathize. For example, regarding outdoor chores, one might ask the client whether s/he can still climb a ladder to repair a gutter or paint some trim. His/her answer may be, “No, it is too dangerous to do with only one good arm.”

Caring and Helping

In contrast to Household Production, Caring and Helping tends to have a wider swing (a more significant variance) than Household Production. A shoulder impairment may produce a wide range of limitations to remaining capacity, depending on a specific subcategory. Caring and Helping includes activities we group into five subcategories: performing services for household children, adults, non-household and near-family members, travel for household members, and travel for non-household members. In providing care and help to others, we often find the most significant activity reduction because care within the nuclear and extended family turns more to the newly impaired client. Often, these activities require the ability to lift or help another into a vehicle and drive it.

Thus far, we have reviewed the set of metrics that economists commonly employ to measure the Value of Lost Household Services. However, we face a significant challenge in maintaining accuracy and objectivity because clients generally self-report much information regarding their remaining capacity. They may do this consciously to inflate their losses or unconsciously because they are unaware of their activities in terms of subcategories and such detail. Nevertheless, an economist who commences with a solid and detailed framework based on extensive large-sample research minimizes the effect of any bias in this self-reporting. The tables provide a reality check in the economic determination of losses.

When Forensic Economists consider the hours worked and the dollar value of Household Services, generally, we look at the family structure as one of the critical determinants; our economy continuously transforms the structure of the American household morphs into a wider variety of forms.

Similar changes have occurred over the centuries. These changes have impacted the structure of families and everyday life as we know it. Since domestic households and the economy remain inextricably linked, household structure and the economy coevolve. In order to untangle this ball of string, let us consider that an optimal household structure exists at any given time and in any corresponding economic condition. Over the past century, economic conditions have caused American households to vacillate between multigenerational, bigenerational, and monogenerational structures.

Putting all of these into simple terms, families include at least one parent in the primary labor force. Along with them, children, grandparents, aunts, uncles, and other extended family members who are not primary breadwinners have resided under the same roof. This multigenerational structure has been considered traditional. It remains prevalent in parts of the United States and most other countries worldwide.   

Regarding our opening quote by Cris Beam, the change toward alternate family structures usually depends on economic, political, and social conditions. Given the point of time in the aging of any Baby Boom, a phenomenon occurs during prosperous years in the wake of a major war. Wars tend to delay the formation of families. Therefore, single persons or non-traditional pairs, with or without dependent children, may constitute the predominant household structure. These events result in the science of measuring hours, and the value of household services continues to evolve.

We hope the above information has served to clarify what can be an obtuse subject. Understanding this subject will help attorneys communicate more effectively with their clients and experts. The dollar amounts from Household Services cases may be large and constitute a significant percentage of total economic losses. Therefore, getting more precise and supportable figures increases the probability of settling in arbitration or winning the amount in a jury trial. Hopefully, this subject will lead to meaningful discussions among attorneys and their family members.
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Dr. John F. Sase teaches Economics at Wayne State University and has practiced Forensic and Investigative Economics for twenty years. He earned a combined M.A. in Economics and an MBA at the University of Detroit, followed by a Ph.D. in Economics from Wayne State University. He is a graduate of the University of Detroit Jesuit High School (www.saseassociates.com).

Gerard J. Senick is a freelance writer, editor, and musician. He earned his degree in English at the University of Detroit and was a supervisory editor at Gale Research Company (now Cengage) for over twenty years. Currently, he edits books for publication (www.senick-editing.com).

Julie G. Sase is a copyeditor, parent coach, and empath. She earned her degree in English at Marygrove College and her graduate certificate in Parent Coaching from Seattle Pacific University. Ms. Sase coaches clients, writes articles, and edits copy (royaloakparentcoaching.com).