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August 04, 2021 Feature

Thoughts on the Retirement of Jim Stewart

By Len Niehoff
Jim Stewart

Jim Stewart

Courtesy of Honigman

At the end of April 2021, Jim Stewart—my friend and colleague of almost 40 years—retired from the practice of law. He will now be spending his time trying to win rounds of golf instead of cases and trying to win arguments with his three daughters instead of opposing counsel. I know Jim will enjoy retirement, but I’m skeptical that his win-loss record is about to improve.

Jim became a media lawyer more or less accidentally.

He attended West Point, which carried with it a four-year Army commitment. He went through the famously rigorous Army Ranger training, which he has described to me as “nine weeks of physical exhaustion, sleep deprivation to the point of hallucination, hunger, thirst, and the constant and imminent risk of serious injury or death.” After West Point, Jim served for a year in Vietnam, as he likes to say: “before it was a tourist destination.”

Of course, none of these experiences signal a career defending the First Amendment. The Army is not exactly known for cultivating freedom of expression within its ranks. But this is the sort of background that would later help Jim keep his perspective about the relative hazards of, say, losing a discovery motion.

After his Army service, Jim enrolled at the University of Michigan Law School. He brought a greater level of maturity to his studies than most of his classmates. After all, he was 26 years old, he had traveled the world, and people had shot at him. But he still didn’t have a clear vision of the type of law he hoped to practice.

Jim was naturally drawn to Detroit because he came from the equally glamorous city of Pittsburgh. Indeed, for many years, Jim had on his desk a can of Pittsburgh’s own Iron City beer, which he had filled with cement so he could use it as a paperweight. If you’ve tasted Iron City, you know that the wad of cement may have been an improvement.

Jim joined a Detroit firm, settled in, and started practicing law. Eager for trial experience, Jim took any assignment that got him into court. He accepted appointments in criminal cases, handled workers’ compensation claims, and litigated all manner of civil disputes that arose at the gas stations owned by a firm client. The last included everything from dog bite claims to lawsuits over stabbings and assaults.

The firm represented the Evening News Association, which at the time owned the Detroit News. In short order, Jim joined the team that handled libel cases for the paper. Other media clients quickly followed.

In his early years at the firm, a number of the media cases involved plaintiffs who had been depicted as having some sort of connection with organized crime. These colorful parties included one Leonard “Lenny” Schultz, a Detroit mob associate suspected in the disappearance of Jimmy Hoffa. Jim was part of the team that defended against his claims.

In the course of discovery in one of those cases, the firm had requested Schultz’s appointment books, which the judge ordered produced—but under the watchful eye of the plaintiff’s lawyer. While Schultz’s attorney observed, Jim paged through the calendars, suddenly exclaiming: “Holy smokes, look at this! July 30, 1975! Kill Jimmy Hoffa!” Schultz’s lawyer—a gifted advocate with whom we’d have many battles over the years—leaned forward, smiled, and said: “It’s not there. I checked.”

I met Jim in the summer of 1983, when I worked at the firm as a law clerk. I didn’t even know that media law existed as a field, and I certainly had no intention of practicing in the area. To the contrary, I planned to become a tax lawyer, a decision made on the strength of the fact that my tax professor was a wonderfully engaging and inspiring teacher. After a couple of tax assignments, however, I realized that I needed to do something else, by which I mean anything else.

I was wandering down the halls of the firm when I passed a closed door behind which I could hear two men yelling and swearing at each other. I would later learn that these were the voices of Jim Stewart and Pete Waldmeir, a Detroit News columnist with whom Jim had developed a warm (and noisy) relationship. I didn’t know what kind of work the partner behind the closed door to that office did, but I knew it sounded like more fun than the tax code and that I wanted to be part of it.

To say the least, Jim has had a major influence on the field of media law in our state. Literally dozens of important cases bear his name, across the fields of defamation, privacy, courtroom access, the Freedom of Information Act, and the Open Meetings Act. The law in Michigan is generally very protective of free speech and the rights of journalists and the press, and Jim has had a central role in shaping that law.

A favorite story of mine gets at Jim’s position as a pioneer in the field. In 1979, the Detroit News published a series of articles that explored a number of connections between two developers of a well-known outdoor entertainment complex and various members of organized crime. One of the connections involved a prominent Detroit businessman who was discovered dead in the trunk of his Lincoln Continental. The Detroit News got the story exactly right, and the articles did not contain a single false fact.

The plaintiffs nevertheless maintained that the articles gave rise to a false implication—specifically, that the plaintiffs themselves were organized crime associates. Today, almost 40 years later, such “libel by implication” claims are less novel. At that time, however, the theory was so unprecedented under Michigan law that no one even knew what to call it.

Jim was part of the team defending the case. One day, he was arguing a motion in the matter and was alternatively calling the claim “libel by implication,” “libel by insinuation,” and “libel by innuendo.” At one point, he accidentally referred to it as “libel by insinuendo.” The judge interrupted and asked: “Mr. Stewart, did you just say ‘insinuendo?’” and Jim—being the honest advocate he is—replied, “Yes, Your Honor, yes, I did.” The judge paused for a moment and then nodded and said: “I like it.” For the next several decades, Jim and I routinely called these “insinuendo” claims.

Over four-plus decades of practice, Jim and his teams encountered an intriguing collection of opposing parties. The inventory includes the following:

A hairstylist who wore a silver jumpsuit and cut hair with a blowtorch. A Colombian judge who sentenced a drug kingpin to prison and then, after receiving death threats, decided to “hide” in Detroit—in plain sight and using her real name. A woman who invited her best friend into a sexual tryst with her husband so she could bear their child—a story our client included in an article about Valentine’s Day. The owner of a drug-laden strip club who got into trouble when a customer had a heart attack during a lap dance. A dealer in refurbished mattresses who had the unfortunate habit of selling products infested with bedbugs. An admitted white supremacist who sued when a columnist described him as a different type of white supremacist than the type preferred by the white supremacist. A prominent Grosse Pointe insurance executive with a penchant for getting into physical fights with his socialite wife. An economics professor who frequently appeared on the covers of the Japanese edition of an adult magazine—prompting our client to label him as the “Playboy of the Eastern world.” A lunatic who liked to don a creepy mask, antagonize people online, and rant about how much he hated eBay. A man suspected of brutally murdering his sister—while they were both still children. The former girlfriend of a rap musician who was convinced that one of his more scandalous song lyrics was about her. A public school superintendent who, inexplicably, took offense when an editorial writer referred to him as “gravel head.” A transmission shop owner that our client incorrectly identified as being investigated by the Michigan Attorney General for cheating his customers—but who we discovered, after he sued, did indeed cheat his customers. An elderly Shriner who was put off when the punk rock group The Dead Kennedys used a picture of him riding around in a tiny car at a parade on the cover of their Frankenchrist album.

It seems fitting that one of the last cases Jim worked on before retiring concerned a member of our state legislature who ran on a “family values” campaign and then, upon election, entered into a romantic affair with a colleague, who was also elected on a “family values” platform. The legislator then tried to cover up the affair by circulating the different and untrue rumor that he’d been caught having homosexual sex behind a night club.

We didn’t just get a dismissal of the multicount complaint that followed. We secured an order for almost $80,000 in sanctions. Nor was this the only time that Jim led a team that made the opponent pay attorney fees. In a Freedom of Information Act (FOIA) case for ESPN, Jim recovered about $70,000.

Along the way, Jim was a tremendous mentor to countless young lawyers. These include Mike Huget, who went on to become the chair of the Litigation Department at Honigman, where our team practices; Jim likes to say that Mike went from being his mentee to being his boss. Then there was Laurie Michelson, who went on to become a federal magistrate and then a federal district court judge. Then there was me, who went on to become the guy who writes tributes to Jim Stewart; it’s a good gig.

Throughout his career, Jim approached the practice as a team effort and was always quick to spread credit around. Our group at Honigman now includes Andy Pauwels and Rian Dawson, both of whom Jim has actively mentored. Jim would be the first to tell you that some of the victories with his name on them belong just as much to those fine young attorneys.

Years ago, Jim liked to use cases filed by prisoners against our media clients to help train the lawyers new to our group. I recall a case that he gave to me where the prisoner plaintiff alleged that our article caused him to suffer “loss of impotence.” The plaintiff apparently didn’t understand the import of the double negative. And Mike and I have often laughed about a case that he had where the prisoner was apparently mystified by the old introit “Now comes the plaintiff” and so instead began his complaint with “Here comes the plaintiff.” I remember, after Mike successfully got the case dismissed, Jim declaring: “Well, there goes the plaintiff.”

Jim loves a good laugh, and he loves a good drink. So you can imagine how many laughs we have shared over drinks throughout the years while talking about these characters. And at some point during the festivities, Jim would always pause to ask me a rhetorical question: “Who has more fun than we do?”

Still, behind the fun of it, there was always a lot of hard work, often under tremendous stress and with very high stakes. For example, we had many FOIA battles with a Detroit mayor who routinely refused to produce documents that revealed the city’s scandalously bad decisions—which were abundant. In multiple cases, the mayor refused to surrender public records despite court orders directing the city to do so. His intransigence resulted in the jailing of not one but two leading Detroit officials for contempt, including the city’s principal lawyer.

In one of those cases, the city was frantically trying to conceal an act of gross incompetence that had resulted in a multimillion-dollar loss of municipal funds. It was an important story, and, every inch of the way, the mayor and his lawyers resisted giving our clients the documents they needed to tell it. In one 24-hour period, that case had us appearing in five different courts, across both the state and the federal systems.

It was a wild ride, and throughout it all, Jim showed the calm and character you would expect from someone who had earned that Army Ranger tab. Everyone who worked with Jim learned a lot from him. But I suspect that, for all of us, the most critical lesson was about how to show grace under pressure.

In closing, I’d like to tell one last story about Jim. Many years ago, he and I were at a partner retreat in northern Michigan and decided to squeeze in a little hunting. Consistent with his relentless optimism, Jim brought multiple guns, about a case of shotgun shells, and a cooler big enough to hold a Cape Buffalo.

We had a lovely day in the woods, but let’s just say that the yield was lower than anticipated. I never even got off a shot, and Jim took one woodcock—a bird whose breast meat is small enough to fit in a thimble. Undaunted, Jim cleaned the bird, took the two tiny pieces, and reverently deposited them into the cooler, leaving plenty of room for ice and, well, a Volkswagen. We were both laughing so hard we were crying.

It was such a Jim moment. Focused on task. Undaunted by disappointment. Cheerful in the fulfillment of duty. And knowing, the whole time he was doing it, that a life well lived consists in nothing more than good stories—and that this presented yet another opportunity to make one.

I think that one of the reasons many of us enjoy assembling at our bar conferences is that media lawyers disproportionately have such good stories to tell. In my view, no member of our bar accumulated more hilarious tales or told them half as well as Jim Stewart. I know we will all miss him at future gatherings, while he’s off building furniture, wandering around in sand traps, reading more Civil War history books, and doting over his family. But we will all channel a bit of Jim when we gather over drinks, share some stories that grow in the telling, and remember how privileged we are to work in a field that allows us to defend a principle central to our democracy while also providing so many occasions to wonder aloud: “Who has more fun than we do?”

Thanks, Jim. For everything.

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By Len Niehoff

Len Niehoff co-chairs the Media & Entertainment law group at Honigman and serves as professor from practice at the University of Michigan Law School, where he teaches First Amendment and Media Law.