Saturday, February 25, 2017

You know who you are -- but do the bar associations know about you?

We continue to wait for the list of persons filing for the forthcoming class of associate judges in Cook County.

I will have the list here on FWIW just as soon as I can.

Meanwhile, though, somewhere between 250 and 300 of you (if history is any guide) already know that you'll be on that list when it comes out. Many of you have your bar ratings already.

But some of you do not. It is to you---the first time judicial applicants, the previously unrated applicants---that this post is addressed.

Judicial evaluations take time. The associate judge selection process cannot go forward until the evaluations are complete. When the list is published, judicial aspirants who do not have current evaluations from the CBA and the Alliance of Bar Associations of Judicial Screening will be contacted.

But why wait?

If you are among the many applicants for associate judge, and if you have not been previously evaluated, you should reach out as soon as possible to both the Alliance and the CBA and get your evaluations started.

To contact the Alliance, email Joyce Williams, the Alliance Administrator. To contact the CBA, email Therese Kurth.

Friday, February 24, 2017

Reforming civil discovery – Part 4 – one more post on zero-based discovery

With zero-based discovery, no discovery would be permitted to any party unless and until the court first reviews and approves the specific discovery sought.

This is similar to the way things worked in Lincoln’s day. A well-funded party would file its law action – and then file a separate chancery action, a bill of discovery, in order to obtain the discovery needed for their case. We don’t need a separate suit to authorize discovery in the modern age, the distinction between courts of law and courts of equity having been abolished. But, if we are serious about reducing the cost of civil litigation and thereby securing access to the civil justice system for more than just the one-percenters, we do need a gatekeeper. A vigilant, skeptical gatekeeper.

Granted, while the existing discovery rules would not have to be totally rewritten to accommodate zero-based discovery, there would be some adjustments made by the bench and bar in order for the system to work.

So what?

Change is the only constant of modern life.

But, most of the time, ‘change’ means adding onto, not substituting one thing for another.

In my 37 years in practice, we’ve gone from IBM Selectrics to personal computers to laptops to tablets and phones.

‘Phones’ which we now use mostly to text or email people we might have, at one time, called.

On a phone.

I have been in practice so long that I can recall a time when the word ‘cloud’ referred principally to a visible mass of condensed water vapor in the sky.

In the course of my career, the rise of word processors and, later, PCs led directly to the ubiquitous use of form interrogatories. I refer not to the ‘form’ interrogatories now included in the comments to Supreme Court Rule 213 but, rather, to the form interrogatories that lawyers developed (or appropriated for their own use) – including, of course, the multi-page ‘definitions and instructions’ that some sadistic misanthrope inflicted on the rest of us a generation ago. We started using form discovery because it had become easy to do so. (Can you imagine someone having to retype those ‘definitions and instructions’ on a Selectric every time these were to be dropped on some unsuspecting opponent?)

In our modern, high-tech culture we often do things because we can, without giving a second thought to whether we should. The most widely cited example of this phenomenon has been the making of the second Star Wars trilogy, but this concept applies to civil discovery as well.

Photocopying made it possible to obtain large quantities of documents. So we started insisting on the production of large quantities of documents. Then digital technology made it possible to share enormous quantities of documents. So we began demanding these as well.

With zero-based discovery, we can step back and consider not just what we can do, but whether we should do it in the first place.

Lawyers will still be able to prepare cases, and settle cases, and try cases with zero-based discovery. But the best lawyer can’t do any of these things without clients. And potential clients can’t become clients unless they can afford representation.

We say we want ‘access to justice’ for civil litigants. In civil cases, meaningful access does not mean only that litigants can appear in court. Unrepresented parties can too easily ruin meritorious cases because they don’t understand either the applicable law or procedure. No matter how we streamline our court system, lawyers who regularly appear in a courtroom will have a decided advantage over pro se litigants who are involved in only one case. Access to justice for these litigants should involve access to lawyers, too. By drastically restraining discovery, perhaps many litigants will ‘discover’ that they can afford representation.

Thursday, February 23, 2017

Reforming civil discovery – Part 3 – how zero-based discovery can work

In yesterday’s installment, I suggested that zero-based discovery would help ameliorate a basic access to justice problem, namely, that the cost of litigation has taken our civil court system beyond the reach of all but the biggest companies and most wealthy individuals. But small businesses and middle class people still get sued and not every claim can be brought within liability insurance coverage. So we see increasing numbers of pro se litigants in our courts. Without the means to hire their own lawyers, too many pro se litigants, even those who might have meritorious claims or defenses, wind up losing to better-funded, represented opponents.

Eliminating ‘routine’ discovery will go a long way toward reducing the costs, and the pitfalls, for these pro se litigants. It may even bring the cost of representation back within the means of many litigants.

Having trouble visualizing a world without automatic discovery?

Routine discovery illustrated?
With zero-based discovery, the court would not merely inquire whether the parties have propounded interrogatories, the court would have to be persuaded that interrogatories are necessary to help this case be postured for settlement or trial and then have to approve the specific interrogatories to be propounded.

One immediate benefit would be the immediate disappearance of those six and seven page “definitions and instructions” sections that some attorneys like to lard onto interrogatories. No responsible court would ever approve a set of interrogatories with these. First of all, no one can possibly furnish answers to interrogatories that fully comply with these ‘instructions’: In the real world, the singular does not include the plural (or vice versa) and “and” never means “or” (usually couched, in the byzantine, prolix gibberish of the typical ‘instructions’ section, in terms of the conjunctive including the disjunctive... and vice versa).

Think about that for a minute. Under these kinds of impossible instructions, “two or three” might refer to an indeterminate, but small, number of something... or it might mean “five.” That’s simply absurd.

“Form” interrogatories would also vanish, unmourned, into the past. Let’s consider an example: In a garden variety rear-ender case, do we really need to know “the name and address of any physician, ophthalmologist, optician or other health care professional who performed any eye examination of” the defendant “within the last five years and the dates of each such examination?” Do we really need the defendant to disclose every doctor’s visit in the past 10 years and the reasons therefor? A court applying zero-based discovery should not ordinarily approve interrogatories like these in this sort of case despite their ‘approved’ pedigree.

With zero-based discovery, both parties attorneys would have to persuade the trial court at the initial case management conference that they need certain interrogatories answered in order to either complete settlement evaluation or prepare the case for trial. A judge might agree that some of the old ‘form’ interrogatories might be useful in this regard – but probably not all of them in any particular case.

On the other hand, in a red-light, open intersection case, or where the defendant driver plows into a building, injuring persons within, interrogatories about the defendant’s prior health might be very important... and a court might be expected to permit these kinds of interrogatories. The important lesson is that discovery requests must be tailored to the issues in the case.

One other tremendous advantage of having direct judicial involvement in discovery from the outset of a case is that disputes about requests being too broad or too burdensome should be ‘nipped in the bud.’

In describing what zero-based discovery might look like, we started by talking about written discovery.

But there is no good reason to always wait for the conclusion of written discovery before taking depositions.

Consider an open intersection accident where each party is absolutely certain that the other ran the red light. If there were two eyewitnesses, why wait until after the plaintiff is forced to reveal that she had her tonsils out at age four? Why not start with the depositions of the two eyewitnesses? If both agree which party ran the red light, perhaps the case can settle early (the settlement value dependent, of course, on whether it was plaintiff or defendant at fault). If the witnesses split, perhaps a trial is inevitable – but, then, future discovery can be framed with the necessity of trial in mind.

On the other hand, a trial court might conclude that depositions aren’t really necessary in a given case. Returning to the example of the garden-variety rear-ender case: To prepare such a case for trial, does the plaintiff’s attorney really need to know—in advance—whether the defendant claims to have hit the brakes five seconds or 10 seconds before impact? Conversely, does the defense need to give a plaintiff the opportunity to rehearse his or her trial testimony?

Juries sometimes do strange things. When an anomalous result obtains, and the party or insurer starts looking through the pre-trial record, no attorney wants to be called upon to explain an order in which certain written discovery or depositions were ‘waived.’ Zero-based discovery will not eliminate runaway juries. But where the court has had ultimate authority about what discovery to permit and what to refuse from the very outset of the case, no one party can be blamed for ‘waiving’ anything.

Zero-based discovery will not mean zero-compliance discovery: Where a court permits certain interrogatories to be propounded, or certain documents to be requested, or certain depositions to be taken, the expectation will be that there will be “full disclosure.” But, when there is a dispute over the sufficiency of a response, the court will not have to guess what was expected; the court will have been party to the creation of the expectation.

Zero-based discovery would not mean an end to all discovery. It would, however, bring an end to discovery being conducted without a valid reason or goal (and spending one’s opponent into submission would never qualify). With the parties having to justify any desired discovery and the court being involved in the process right from the start, and the natural antipathy of court and conscientious counsel toward discovery, the burdens—and costs—of discovery should be drastically reduced. Zero-based discovery is a concept that should find adherents from ITLA to the Judicial Hellhole folks. The IJA, however, may be a tougher sell....

Wednesday, February 22, 2017

Ammendola appointed to countywide McGinnis vacancy

The Illinois Supreme Court today appointed Loop attorney Marina E. Ammendola to the countywide vacancy created by the retirement of Judge Sheila McGinnis.

Ammendola's appointment is effective February 27 and will terminate on December 3, 2018. Ammendola has been licensed in Illinois since 1989. She is a member of the Board of Directors of the Illinois Trial Lawyers Association. Ammendola made the Chicago newspapers at the turn of the century when she represented Ald. Ed Burke and his wife, now-Supreme Court Justice Anne M. Burke, in the "Baby T" custody case. Before setting up her own practice in 2001, Ammendola worked for Patricia C. Bobb & Associates.

Reforming civil discovery – Part 2 – preserve the civil justice system by adopting zero-based discovery

There seems to be a misunderstanding among lawyers generally and courts in particular that, unless forced to do so, a lawyer in a civil case will never disclose a single scrap of information.

And yet we know that we don’t behave that way. Judges didn’t behave that way when they were in practice either (just ask one).

And we also know that most—the overwhelming majority of—civil cases are disposed of without trial.

And, finally, we also know that this happens even though a great many cases are settled without suit ever being filed.

Cases settle without suit because lots of information is voluntarily disclosed. Plaintiffs’ attorneys carefully gather together their clients’ medical records and lost-time records and helpful scene photographs and bundle them together in a ‘package’ designed to make the adjuster requisition adequate authority. The damning documents are carefully arranged and an explanatory letter is sent in an effort to make the other party to the contract realize the consequence of his or her breach. It doesn’t take a 213(f)(3) disclosure schedule to get the property owner to share the engineering report that clearly shows that the concrete was improperly mixed and that this caused the damage to the structure. These disclosures are willingly made in order to resolve cases at the earliest possible opportunity.

In other words, we really are very eager to disclose information that helps us... it’s just information that might hurt our cause that we try to keep hidden. (Human nature again.)

But, especially in our hyper-connected, over-sharing age, a lot of stuff that clients might not want to reveal, if they thought about it, is already ‘out’ before their lawyers are brought ‘in.’

Even if some damaging stuff sometimes remains buried during pre-suit investigation, cases don’t typically arrive in court without both sides already knowing quite a bit, good and bad, about the controversy.

Why does it automatically make sense to recreate all the information obtained or exchanged pre-suit?

In a great many cases—especially in our hyper-connected, over-sharing world—a lot of information damaging to our opponent is already known by third parties. Military Strategy 101 teaches that a good flanking maneuver is less costly than a frontal assault on a fortified position. Why do lawyers spend so much time, and so much client money, making frontal assaults on their opponents, demanding that they reveal damaging stuff that could be far more easily obtained from others?

The concept of “complete” or “full” discovery may sound appealing to law school professors, but the costs attendant thereto has made our civil court system too expensive a forum for too many – and, yet, there’s no viable alternative available. (Arbitration? Don’t get me started: Discovery is corrupting arbitration practice, too, and where one side is purchasing the arbitrator, as is now the case in mega-company vs. consumer arbitration, just exactly how fair can that system be?)

What we should do instead is abandon the idea of automatic discovery and move to a zero-based discovery system. This is not as inconsistent with our existing rules as you might initially think. Consider, for example, Supreme Court Rule 218(a), which already provides that “the following shall be considered” at an initial case management conference:
(1) the nature, issues, and complexity of the case;

(2) the simplification of the issues;

(3) amendments to the pleadings;

(4) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(5) limitations on discovery including:
(i) the number and duration of depositions which may be taken;

(ii) the area of expertise and the number of expert witnesses who may be called; and

(iii) deadlines for the disclosure of witnesses and the completion of written discovery and depositions;
(6) the possibility of settlement and scheduling of a settlement conference;

(7) the advisability of alternative dispute resolution;

(8) the date on which the case should be ready for trial;

(9) the advisability of holding subsequent case management conferences; and

(10) any other matters which may aid in the disposition of the action including but not limited to issues involving electronically stored information and preservation.”
Rules 218(a)(4), (5), and (10) specifically invite a trial court’s early and direct involvement in discovery issues. But rather than asking whether ‘form’ interrogatories have been unthinkingly propounded, or whether the depositions of all parties have been scheduled, whether needed or not, I suggest that we ask courts to presume that no discovery whatsoever is necessary in any case. I call this ‘zero-based discovery.’

With zero-based discovery the burden would be imposed on any party who wants it to persuade the court as to what discovery is necessary, and why. The court becomes the gatekeeper, tasked with evaluating whether the requested discovery is really necessary to get a case ready for trial – or positioned for settlement – or whether the discovery being sought is instead intended as a means to wear down or harass the other side. The court’s active involvement at this juncture should stop a ‘fishing expedition’ before it leaves port. The court’s control of the conduct of discovery from the outset would protect the uninsured or underfunded party against the use of discovery by a well-funded opponent as a means to bleed and bludgeon it into an unfair settlement or, worse, default or nonsuit.

With a zero-based discovery, human nature works with the system, instead of against it: When the judge becomes obliged to ‘deal’ with discovery issues, he or she, consistent with his or her understandable disdain for discovery issues, will want to minimize discovery, to focus it to just that which is essential.

The new assumption would be that, without a court-specified and court-monitored discovery schedule, carefully tailored to meet the specific needs of each case, a case would be ready for trial just as soon as issue was joined. This would not prevent the parties from attempting to resolve their differences, either with the court’s assistance in a pre-trial, or through mediation (again, as Rule 218(a) already provides). But, without unfettered, automatic discovery, the cost of litigation would be reduced, perhaps drastically, bringing the court system—and the services of lawyers—once again within the reach of middle class people and small businesses. That alone might curb the surge in pro se litigation.

Meanwhile, equally well-funded parties could still try and discover each other to death (if equally well-financed parties are determined to wage a discovery war of attrition, the wise trial judge will gladly let them). But the civil court system can still be preserved as a viable dispute resolution forum for the rest of us.

To be continued.

Tuesday, February 21, 2017

Reforming civil discovery – Part 1 – the problem of human nature

First in a series.

“Discovery is intended to be a mechanism for the ascertainment of truth, for the purpose of promoting either a fair settlement or a fair trial.” Ostendorf v. International Harvester Co., 89 Ill.2d 273, 282, 433 N.E.2d 253, 257 (1982). “[D]iscovery is supposed to enable counsel to decide in advance of trial not only what the evidence is likely to be but what legal issues can credibly be argued.” Lubbers v. Norfolk & Western R. Co., 105 Ill.2d 201, 213, 473 N.E.2d 955, 961 (1984).

That’s what discovery in a civil case is intended to be.

Discovery is not supposed to be “a tactical game,” a game played to “impede and harass” an opponent. Williams v. A.E. Staley Mfg. Co., 83 Ill.2d 559, 566, 416 N.E.2d 252, 256 (1981).

But, too often, that’s just what discovery is: A game, a gauntlet, a trial by ordeal. It is too often used to prevent consideration of the merits of a case. It is deployed to wear down, subdue, bleed, and even bankrupt an opponent. Especially where the parties are not equally well-funded: Big business vs. small businessperson, for example, or well-insured or well-financed defendant vs. plaintiff (read: plaintiff’s attorney) with shallow pockets. Or where the defendant is uninsured.

How can this happen?

Two words: Human nature.

In the very next sentence after the Illinois Supreme Court warned, in Williams v. A.E. Staley Mfg. Co., that discovery should not be a tactical game, the court itself created the playing field: “Discovery is intended as, and should be, a cooperative undertaking by counsel and the parties, conducted largely without court intervention, for the purpose of ascertaining the merits of the case and thus promoting either a fair settlement or a fair trial.” (83 Ill.2d at 566, emphasis mine.)

With the lower courts instructed to refrain from routine intervention in discovery, whatever the Supreme Court’s intent, it was inevitable that abuses would flourish: Discovery bullies, like every other kind of bully, are all too willing to take every advantage when assured they can act without fear of ‘intervention.’

Not that trial courts needed much persuasion to refrain from intervention. Judges (understandably) don’t want to be burdened with discovery issues. It’s just human nature: Judges didn’t like discovery when they were mere practitioners.

Nor should this be surprising: No sane person likes discovery. Junior lawyers dream of becoming senior lawyers so they can fob discovery compliance off on the next cohort of fresh-faced associates, just as this unsavory task was dumped on them by their elders. That’s also human nature.

Senior partners may like the billable hours accumulated by their minions in the relentless pursuit (or avoidance) of discovery compliance, but none of them would willingly pitch in and review documents. That’s human nature, too.

Besides, no sane client would ever pay the senior partner’s hourly rate for tasks that the greenest associate might handle (or even a robot). Clients don’t just hate paying for discovery, they hate being bothered by it. What lawyer hasn’t had a client whine why am I paying you if I have to look for all this stuff myself? (With clients whose defense costs are being fronted by liability insurers the whining is sometimes even worse: Why do I have to do all this stuff? What did I buy insurance for anyway?)

So it’s just human nature that clients, and all the lawyers who can, will avoid discovery whenever they can (and, sometimes, even when they shouldn’t). Equally in accord with human nature, the courts are entirely willing to adopt an attitude of benign neglect (you lawyers should work this out amongst yourselves).

This creates opportunities for the Eddie and Edwina Haskells of the world. (I always hesitate to use cultural references from my TV-saturated childhood but, in rummaging around the Intertubes preparing this piece, I came across a 2011 article on the Psychology Today website, by Dr. Ronald E. Riggio, entitled, “Bullies and the Eddie Haskell Effect,” and subtitled, “Why workplace bullies often don’t get caught.” So I guess the reference is still well enough understood.) Mrs. Cleaver usually saw through Eddie’s smarmy and unctuous horse manure, but not always right away. Sometimes Wallace and Theodore, er, Wally and the Beaver, would wind up in hot water first. Comedy ensued.

Like June Cleaver, judges may eventually see through the Eddie or Edwina Haskells who are abusing discovery (and their opponents) in the cases before them – but not always before costs are inflated out of proportion with the value of the case.

Litigation is about persuasion. Persuasion involves more than the lawyer’s careful case citations or passionate speeches. A jury trial, you may have heard, is a proceeding in which 12 strangers decide which party has the best lawyer. There’s a kernel of truth in that old piece of corn: First and foremost, persuasion involves the lawyer trying to show the court that she is the reasonable one, that he is trustworthy, that they are credible. The lawyer who loses credibility with the court may find that all the great case citations and flowery language in the world can’t save the client’s cause. Once again, that’s human nature.

Anyone who has ever played a team sport, or had a kid in a team sport, has learned (often the hard way) that the umpire or referee doesn’t always see (or recognize) the provocation that gives rise to the retaliation. But the retaliation is almost always seen, and penalized. That’s human nature, too.

A court may not immediately recognize that the motion to compel is unfair or unjust because the underlying discovery requests are irrelevant, overbroad, overly burdensome, and/or grossly disproportionate to the dispute in question. In fact, this would be unlikely because, after all, the parties are supposed to work this stuff out without judicial intervention. Therefore—human nature being what it is—the party seeking the court’s assistance in enforcing discovery, in apparent compliance with the rules, particularly Rule 201(k), especially when represented by an Edward Haskell, Esq., will, at least at first, command the court’s sympathy. And the aggrieved respondent, whose credibility with the court is diminished just by being on the receiving end of such a motion, can squander what credibility he or she has left with too shrill or outraged a response. This, too, is human nature.

A proper civil discovery system should not work against human nature (or, at best, in spite of human nature).

More on this tomorrow.

Sunday, February 05, 2017

Rule 23 in the news this week -- and an illustration of the 'be careful what you ask for' rule

It had to be coincidence, right?

Justice Michael Hyman's partial concurrence and dissent in Snow & Ice, Inc. v. MPR Management, Inc., 2017 IL App (1st) 151706-U, was front page news in Wednesday evening's Law Bulletin. In my email Wednesday afternoon was an update from the Appellate Lawyers Association. Both concerned suggested changes to Illinois Supreme Court Rule 23.

The ALA chose Wednesday to report that the Supreme Court had "voted during its November 2016 Term to make no changes to" Rule 23 at this time.

The ALA, Chicago Bar Association, and the Illinois State Bar Association had written a joint letter back in 2014 to then-Chief Justice Rita B. Garman proposing that Rule 23 orders be citable as persuasive authority. (Currently, Rule 23(e)(1) provides that Rule 23 orders are "not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.")

The Supreme Court chose not to act on the 2014 request but, according to the ALA, "invited the Associations to undertake a comprehensive review and 'consider whether there is continued value to distinguishing between published and nonpublished dispositions since they are all available electronically and no longer bound in paper form.'"

Joined by representatives of the Executive Committee of the Illinois Judges Association, the ALA, CBA and ISBA set up a Special Committee on Rule 23 and, this past August, "submitted a revised proposed amendment to Rule 23 that would permit the citation of Rule 23 orders issued after the amendment would take effect as persuasive authority." But the Court again said no.

Currently, the majority of a panel deciding a case determines whether a case will be disposed of by a published opinion or under Rule 23. In Snow & Ice, Inc., Justice Hyman advocates for what he calls "the one justice rule": "in cases with a dissent or special concurrence, the preference of a single justice, rather than a majority of the panel, [should be] sufficient to publish the decision as an opinion" 2017 IL App (1st) 151706-U, ¶28.

Hyman notes, 2017 IL App (1st) 151706-U, ¶¶51-52, that the First, Fifth, Sixth and Ninth Circuits of the U.S. Courts of Appeal have a publication rule in place similar to the one he suggests, as do state courts in Alabama, Arizona, California, Indiana, Missouri, North Dakota, and Texas.

Illinois used to be on this list, too. My research over the past couple of days leads me to believe that the 'panel majority' rule came into effect in 1994. I am virtually certain that, in 1991, the filing of a dissent automatically made what had been a Rule 23 order into a published opinion.

I choose not to name the case here, but let me explain the facts.

Plaintiff discharged her lawyer at some point after filing suit. I don't know why. New counsel was engaged and ready to take the case over, but the first attorney was unwilling to relinquish the file until there was an agreement reached on a division of fees and costs.

This is a bad idea of many levels, not least of which is the fact that the fee can not be properly allocated at such an early stage: The first attorney is entitled to a quantum meruit recovery but, until the case was resolved, no one could fairly say how much or how little the first attorney contributed to the eventual result. The second attorney should have tendered the first attorney's costs and promised to protect the first attorney's lien rights and the first attorney should have handed over the file.

I don't know whether the failure to respond to defendant's initial written discovery requests prompted the dismissal of the first attorney or whether the first attorney refused to answer the discovery because he'd been discharged. I do know, however, that the discovery went unanswered for roughly six months. A sanctions motion was eventually filed. About five months after the motion was filed (11 months after the discovery was served), Attorney #1 withdrew and Attorney #2 entered an appearance. About a month after that the sanctions motion was granted. In the published opinion, the Appellate Court said the sanctions motion was granted ex parte, but the motion had been pending, at that point, for roughly six months and presumably both attorneys, the one who withdrew while the motion was pending, and the one who appeared while the motion was pending, knew or should have known about the pending hearing date. In this case, therefore, I believe ex parte merely means that no one showed up to oppose the entry of the dismissal.

Three more months dragged by before Attorney #2 decided to do something about the dismissal.

A §2-1401 petition was filed, with supporting affidavits. Section 2-1401, then and now, requires that a §2-1401 "petition must be supported by affidavit or other appropriate showing as to matters not of record." The affidavits are necessary to establish a party's due diligence; a §2-1401 can not be granted unless the movant can show due diligence and a meritorious claim (or defense).

In this case, though, the affidavits were defective. They were stricken. An amended §2-1401 petition was then filed, supported by different affidavits. The published opinion does not so state but, as I recall, the second set of affidavits were not only deficient technically, they contradicted the first set of affidavits factually, setting up the always-awkward question of were you lying then or are you lying now?

The trial court agreed, and struck the affidavits once again -- stating expressly that the attorneys were negligent and not diligent -- but, this time, the trial court granted the petition.

I don't remember with certainty when I got involved in the case. It wasn't mine from the beginning. I know I was involved in the appeal. I may have gotten involved at the §2-1401 stage, but my memory, over 25 years later, is fuzzy. I do remember roping in a new associate to work on the appeal with me. After all, I told her, this case presented a typical bar exam question and she was much closer to the bar exam than I was. (When I took the bar, §2-1401 was called §72, but it was basically the same statute, and the affidavit and due diligence requirements were unchanged.)

You probably saw where this was going long since: The Appellate Court affirmed, in what was initially a Rule 23 order, on the basis of "fairness." Both the trial court and the Appellate Court were reluctant to punish the plaintiff because her attorneys could not "cooperate."

There was no associate assisting me on the petition for rehearing. I was almost certainly a tad intemperate. I'm sure I brought up the standard-bar-exam-question angle.

My screed caught the attention of one of the panelists---but only one---and she filed a dissent agreeing that it was error to grant a §2-1401 petition without supporting affidavits and where due diligence was not established. The filing of that dissent, under Rule 23 as it existed in 1991, caused the order, which would otherwise have never been heard from again, to automatically become an opinion. My temper tantrum caused an unfortunate result to become a knot in the otherwise smooth fabric of §2-1401 precedent. I got snarky thank-you notes from more than one plaintiff's attorney when that case hit the advance sheets. I remember one note said, You lowered my malpractice premiums with this case. Thanks!

Be careful what you ask for indeed.

At some point the nice insurance company that was paying our fees decided it would be best to move on. I don't know if this was before or after the PLA (which was denied) but it was certainly before the Motion for Leave to File Instanter a Motion for Reconsideration of the Denial of the Petition for Leave to Appeal that I filed anyway, missing a good part of our Christmas party that year, eating my time instead of whatever meal the others were having.

(And, of course, this motion, too, was denied -- although, ironically, several years later, also at Christmastime, I drew on my experience in drafting that awkwardly named motion to draft another such motion in another case which was actually granted.)

I'm no fan of Rule 23. I used to say, with some bitterness, that all my appellate victories were buried in Rule 23 orders -- and all my losses were in published opinions. But (a) this is not true and (b) with the passage of time, I've come to realize that it's the result that counts, not whether a disposition is published. And, besides, there have been a few occasions, over the years, when I was glad for the cloak of Rule 23. Anybody who's done this kind of work can recount instances of making good arguments in not-so-good cases.

But the problem with Rule 23 probably lies in its application, not so much in the concept. Despite the experience recounted above, I'm inclined to agree with Justice Hyman's suggested "one justice rule" for publication. And there was one other point that Justice Hyman made about a circumstance where Rule 23 should not apply (2017 IL App (1st) 151706-U, ¶38), namely, "reaffirming a rule of law's viability despite its age."

Justice Hyman illustrated this principle by positing an opinion written in 1977 that plainly states a rule of law. The rule hasn't changed in 40 years and, therefore, according to Rule 23, a new case expressing that rule need not be published. "But," suggests Justice Hyman, "a 2017 opinion restating that rule, and analyzing a modern factual scenario, can be helpful to today’s lawyers in understanding the rule’s continued applicability. (And reassure lawyers that they have found the most recent, accurate statement of the law.)" (2017 IL App (1st) 151706-U, ¶38.) To this, I would add that a reaffirmation of long-standing principles now and again would also provide comfort to trial judges increasingly skittish about relying on non-public domain authority....

Saturday, January 28, 2017

CBA extends deadline for interested persons to join its JEC; Alliance looking for JEC volunteers, too

The Chicago Bar Association has extended the deadline for persons interested in applying for its Judicial Evaluation Committee to February 17. The CBA says it is looking for help with the JEC's Investigation Division. Applicants must be CBA members with at least a "few years of experience."

To obtain an application, click on this link. Complete the form and either email it back to Therese Kurth at or fax it to 312-554-2054. Applicants will be contacted by a representative of the CBA JEC after February 17.

Joyce Williams, the Alliance Administrator, said the Alliance of Bar Associations for Judicial Screening is also looking for more investigators. Interested members of any Alliance bar group should contact their own JEC committee to volunteer. Email Joyce Williams at if you have any questions.

While every bar group has its own procedures, in general, JEC investigators are assigned one or more candidates (or applicants for Associate Judge) and asked to follow up on the various disclosures made in the lengthy applications. JEC volunteer investigators call the persons that the candidate has listed as references, as his or her opponents in various cases, and otherwise follow up on the disclosures the candidate has provided. This results of the investigation are reported back to respective JECs and serve as the basis for the candidate interviews that the CBA or Alliance will eventually conduct.

The application window for the next class of associate judges closes February 8, so new JEC volunteer investigators are likely to have the opportunity to participate almost immediately. However, as the old saying goes, many hands make light work... and, if more incentive is required, if you search the archives here, you will note that a great many judges began their ascent to the bench as a JEC member.

Friday, January 27, 2017

Travis Richardson appointed to 2nd Subcircuit vacancy

The Illinois Supreme Court today appointed Travis Richardson to the Second Subcircuit vacancy just created by the retirement of Judge John D. Turner, Jr.

The appointment is effective February 14 and will expire on December 3, 2018.

Richardson was, until recently, a partner in the firm of Richardson & Mackoff (his partner, Myron F. Mackoff, left the firm in December to take up duties as a Circuit Court judge from the 8th Subcircuit). Richardson was a candidate for a 2nd Subcircuit vacancy in the 2016 Primary, garnering the Tribune's endorsement and a "Well Qualified" rating from the Chicago Council of Lawyers in the course of his campaign.

A graduate of the University of Pennsylvania and the University of Michigan Law School, according to his firm biography, Richardson has been licensed as an attorney in Illinois since 1997.

Sunday, January 22, 2017

Who Sits Where -- 2018-Is-Here-and-We've-Barely-Begun-2017 Edition

Updated January 27, 2017
Updated January 24, 2017

What follows is not a comprehensive list of Cook County judicial vacancies but, rather, a list of vacancies that have either been filled by Supreme Court appointment or for which an application process has been announced or that I am pretty sure exist even though no announcement has been made. There are, I realize, other vacancies which the Supreme Court has neither filled nor announced; a number of these have been suggested in comments to posts on this blog.

And there will be additional vacancies, and additional appointments between now and late fall when the Illinois State Board of Elections posts an authoritative list of judicial vacancies in anticipation of the 2018 primary. Thus, this list will be updated from time to time.

But I have to start somewhere.

As always, all errors of omission or commission in this list are mine alone and I am grateful for additions and corrections provided.

Countywide Vacancies

Vacancy of the Hon. Eileen Mary Brewer -- Litricia P. Payne
Vacancy of the Hon. Russell W. Hartigan -- Cecilia A. Horan
Vacancy of the Hon. Michelle D. Jordan -- Clare J. Quish
Vacancy of the Hon. Sheila McGinnis -- Unfilled
Vacancy of the Hon. Jean Prendergast Rooney -- Elizabeth A. Karkula

Subcircuit Vacancies

2nd Subcircuit

Vacancy of the Hon. Bertina E. Lampkin -- Fredrick H. Bates
Vacancy of the Hon. Marjorie C. Laws -- Unfilled
Vacancy of the Hon. James L. Rhodes -- Unfilled
Vacancy of the Hon. John D. Turner, Jr. -- Travis Richardson
Vacancy of the Hon. Camille E. Willis -- Unfilled

3rd Subcircuit

Vacancy of the Hon. Maureen Leahy Delehanty -- Patrick T. Stanton

4th Subcircuit

Vacancy of the Hon. Thomas Davy -- Unfilled
Vacancy of the Hon. James Riley -- John A. O'Meara

5th Subcircuit

Vacancy of the Hon. Patricia Banks -- Unfilled

6th Subcircuit

Vacancy of the Hon. Gloria Chevere -- Kent A. Delgado
Vacancy of the Hon. Robert Lopez Cepero -- Stephanie K. Miller

8th Subcircuit

Vacancy of the Hon. Candace J. Fabri -- Robin D. Shoffner
Vacancy of the Hon. Laura Cha-yu Liu -- Michael A. Forti
Vacancy of the Hon. Sheryl A. Pethers -- Myron F. Mackoff

10th Subcircuit

Vacancy of the Hon. Eileen O'Neill Burke -- Stephanie Saltouros
Vacancy of the Hon. Donald J. Suriano -- Gerald V. Cleary

11th Subcircuit

Vacancy of the Hon. Kathleen Kennedy -- Joanne F. Rosado

13th Subcircuit

Vacancy of the Hon. Clayton J. Crane -- Unfilled
Vacancy of the Hon. Jeffrey Lawrence -- Michael Perry Gerber

15th Subcircuit

Vacancy of the Hon. George F. Scully, Jr. -- Diana L. Embil

Wednesday, January 18, 2017

The civil justice system must be especially sensitive to the plight of the uninsured litigant

A typical tort case turns on insurance. The defendant's attorneys are paid by an insurance company; the settlement or verdict will be funded by an insurer. In multiple-party cases, the allocation of fault may take a back seat, for settlement purposes, to the allocation of available insurance proceeds. To some extent, insurance drives the civil justice system.

But not every defendant in the civil justice system is insured. Not every claim is covered. While it might be possible to plead most tort claims into coverage, there is no way to find even potential liability coverage for many contract claims. Now and again a vengeful plaintiff will deliberately plead only intentional acts in an effort to prevent liability coverage from attaching.

I don't pretend to know what the percentage is of uninsured defendants in the civil justice system at any time. I'm sure it fluctuates. And also varies according to the type of case. But the class of uninsureds includes both individuals and small businesses.

Judges tend to see those uninsured defendants who are also not represented. Who appear pro se. We read, from time to time, about the explosive growth in pro se litigants in Cook County and elsewhere, often in the context of judges or bar associations urging lawyers to be more generous with their time and representing some of these litigants pro bono, that being a Latin phrase meaning 'on the cuff.'

The growth in pro se litigants is fueled, in no small part, by the fact that the perceived and/or actual cost of legal services is so high that legal representation is beyond the means of most uninsured litigants. Only wealthy individuals and prosperous small businesses can afford lawyers, or think they can.

Judges see pro se litigants very clearly. They may not see, or notice, the uninsured litigant who begins with counsel and unrealistic expectations about how quickly their case can be resolved. Time passes, money is spent, but the case continues. The relationship sours. The court's first real notice of this type of uninsured litigant may not come until the unpaid lawyer is reduced to withdrawing (what we call, in the old Gaelic, a motion in gelt). Has the lawyer overcharged... or overpromised... or underperformed? Maybe. In some cases. Maybe the client's unrealistic notions of how fast his or her attorney can move a case without the active cooperation the court and opposing counsel is to blame. Maybe the client just flat runs out of money.

The point is that the civil justice system, properly functioning, should be on the lookout for uninsured litigants from the earliest stages of the case. Some provision must be made to expedite their cases so that they can have the benefit of representation and not (necessarily) have to wind up staring into the abyss of bankruptcy. When the motion in gelt is presented, it's too late for the court to do much good. This is a basic access to justice issue: Can real people hope to achieve a fair, appropriate resolution of their cases in our civil justice system when they are sued and do not have insurance?

In coming posts I will share some ideas I have on this topic.

Saturday, January 14, 2017

Cook County makes #6 on ATRF Judicial Hellhole list -- for all the wrong reasons

The American Tort Reform Foundation has issued its annual Judicial Hellholes report and, no surprise, Cook County once again ranks high (#6) on the list of jurisdictions of which the tort reform group has a low opinion.

(The cover art is always spectacular on these reports; it's great to see that artists who formerly designed album covers for head-banging, heavy metal rockers can still find work.)

Cook County is once again grouped with Madison and St. Clair Counties in the Judicial Hellhole Report because (p. 29) "all three are jurisdictions where no civil defendant wants to face a lawsuit."

Really? In which jurisdiction would anyone want to be sued? I have had the privilege of litigating cases in Illinois counties other than Cook -- and not just in the collar counties either. In no case, in Cook County, in a collar county, or Downstate, have I ever hear a litigant say anything remotely along the lines of "here is where I like getting sued."

More specifically, ATRF points out (p. 29), "Cook County hosts roughly two-thirds of Illinois’ major civil litigation, even though only about 40% of the state’s population lives there." The embedded link takes Hellhole readers to a Illinois Civil Justice League report from April 2015 titled "Litigation Imbalance III" and subtitled "Revealing Trends in Court Dockets Demonstrate Lawsuit Abuse in Select Counties." I perused it to find out what the American Tort Reform Association (and Foundation) mean by "major civil litigation." Near as I can tell, major civil litigation is another way of saying Law Division cases.

In other words, not just tort cases, but commercial cases, contract cases and collection cases, too. There is no commodity litigation outside County Cook; Downstate farmers who try and hedge their risks in futures trading are required to litigate their disputes in Chicago. All sorts of disputes arising from national and international trade can be heard in Chicago; these are not likely to be properly venued in courts Downstate.

If anything---and this is not just my perception, but something I've heard from other attorneys---tort litigation in the Circuit Court's Law Division is down, way down, in Cook County, and has been trending down for years.

One 'evergreen' area of litigation is medical malpractice. And Cook County has more than its share, arguably, until one considers the fact that all the teaching hospitals are here, and most of the top specialists, too. With all the good things that can happen here, it naturally follows that bad things can happen, too. Nor should it be any surprise that we have developed in Cook County a small cadre---a very small cadre---of extremely good, extremely specialized medical malpractice attorneys. So when the Hellhole report cites (p. 30) "Deiderich Healthcare’s latest annual data on medical liability payouts [showing] that Illinois again led its Midwest neighbors with $258 million in 2015" ($49.7 million more than 2014's total), I can't do more than shrug: Where the most, and most complex, medicine is practiced, it only stands to reason that the largest medical malpractice payouts will be there, too.

But... did you notice? The cited figures aren't broken down by county; we can't tell, from this, how much of this total is properly allocated to County Cook. I'm sure it's a goodly percentage... but it's not 100%.

And the Hellhole report takes an unfair swipe at the Cook County bench, too (p. 30): "Cook County judges deemed unqualified by the bar have nonetheless been retained in elections again and again." The first "again" is linked, in the Hellhole report, to a 2004 letter to the Tribune from former CBA President Roy E. Hofer; the second is linked to a 2010 Tribune article. Not exactly a snapshot of the current bench.

But, more important, the gist of both these linked articles is that the voters in retention elections had rejected the combined wisdom of the bar associations, and returned to office a few judges believed unqualified by the lawyers' groups. On the other hand, at pp. 30-31, Judge Daniel Lynch was singled out for "rare courage" in throwing out a $25 million settlement agreement reached minutes before a jury reached a defense verdict. (The settlement has since been reinstated, but it may be years before this matter is resolved. I express no opinion on anything, although I have never understood why a jury would be allowed to continue deliberating after the parties advise a judge that a settlement has been reached.)

Anyway, having singled out Judge Lynch, the Hellhole report notes that the Chicago Council of Lawyers rated him "not qualified" in the 2016 retention election. "Imagine that," sneers the Hellhole report (p. 31), "sleazy lawyers don't like an 'unorthodox' judge who acts against and seeks prosecutions of those who perpetrate fraud on our civil justice system.... [V]oters who share Judge Lynch's position on lying, cheating and defrauding the courts overwhelmingly returned him to the bench."

Wait a minute... just a couple of paragraphs before Cook County voters were dummies for rejecting the collective wisdom of the bar groups... but now the Chicago Council of Lawyers is a group of "sleazy lawyers?" (For the record, in the 2016 retention election, Judge Lynch was rated qualified by the Chicago Bar Association---as was every other Cook County judge seeking retention in 2016---and Lynch was found qualified by all of the Alliance bar groups except the Council and the Illinois State Bar Association.)

Inconsistency is no bar to criticism in the Hellhole report.

And, of course, the Hellhole report mentions Rhonda Crawford as "the latest major embarrassment." But that was one race, in an weird, even unprecedented, set of circumstances. The legitimate criticisms that could be made about the civil justice system in Cook County and elsewhere are drowned in a sea of exaggeration.

But there are legitimate criticisms to be made of our civil justice system -- issues of cost and expense that have become so extreme that equal access to justice and even the fundamental fairness of the system itself is placed in jeopardy. I hope to offer my take on these issues in a series of future posts.

Wednesday, January 11, 2017

February 8 deadline set for applications for Cook County Associate Judge

Attorneys interested in applying for Associate Judge have until 5:00 p.m. on February 8, 2017 in which to submit their applications (emailed applications will be accepted until 11:59 p.m. on February 8).

Seven AJ vacancies currently exist, according to the Notice from Cook County Chief Judge Timothy C. Evans now running in the Chicago Daily Law Bulletin. There will almost certainly be more before this current process concludes.

I believe this marks the first time where applications may be submitted electronically. Two different forms of the application for the Cook County vacancies are available on this page of the Illinois Courts website (don't download the DuPage County form by mistake). Forms are also available from the Chief Judge's Office or from the Chicago office of the Administrative Office of the Illinois Courts, 222 N. LaSalle Street, 13th Floor. Completed applications which are not emailed can be returned to the Chicago AOIC office.

Anyone who's ever submitted one of these applications will see the humor in this statement (from the official announcement, so help me): "Applications will not be accepted if submitted via facsimile."

Joanne F. Rosado appointed to Kennedy vacancy in the 11th Subcircuit

Corrected 1/25/17

In an order entered yesterday (but not posted until this morning), the Illinois Supreme Court appointed Assistant Cook County Public Defender Joanne F. Rosado to the 11th Subcircuit vacancy created by the recent retirement of Judge Kathleen Kennedy.

Rosado's appointment was made on the recommendation of Illinois Supreme Court Justice Mary Jane Theis. The Court's press release announcing the appointment, posted this morning, can be accessed here. The appointment is effective January 20 and terminates December 3, 2018.

According to the Supreme Court's press release, Rosado joined the PD's office in 2002, and has worked in the Child Protection Division, Felony Trial Division and the Multiple Defendant Division. Rosado was also a sole practitioner in Rosemont from 2002-2010. She has been licensed in Illinois since 2002.

Rosado previously sought an 11th Subcircuit vacancy in the 2014 Primary. She was passed over by slatemakers for an 11th Subcircuit seat in the 2016 election cycle, but was named an alternate.

Hinshaw partner Cecilia A. Horan appointed to countywide vacancy

In an order entered yesterday (but not posted until this morning), the Illinois Supreme Court appointed Cecilia A. Horan to the countywide vacancy created by the pending retirement of Judge Russell W. Hartigan.

Horan's appointment was made on the recommendation of Justice Mary Jane Theis. The Supreme Court's press release concerning the appointment, which was issued this morning, can be accessed here. The appointment is effective January 19 and will terminate on December 3, 2018.

Horan is a partner with the Chicago office of Hinshaw & Culbertson LLP, joining the firm, according to her firm biography, upon graduating from law school in 1997. Horan is also the current President of the Lesbian and Gay Bar Association of Chicago.

Tuesday, January 10, 2017

Stephanie K. Miller appointed to Lopez Cepero vacancy in 6th Subcircuit

Updated with photo and additional information 1/11/17.

The Illinois Supreme Court today entered an order appointing Assistant State's Attorney Stephanie K. Miller to the 6th Subcircuit vacancy created by the retirement of Judge Robert Lopez Cepero.

Miller's appointment is effective January 30; it expires December 3, 2018. According to ARDC, Miller has been licensed in Illinois since 1999.

Miller serves as a member of the Board of the Lesbian and Gay Bar Association of Chicago. According to a biography posted on the LAGBAC site, before joining the State's Attorney's Office, Miller served as an Assistant Public Guardian. She is also, according to the LAGBAC bio, a co-founder of the National LGBT Prosecutor’s Association, the treasurer of the National Hispanic Prosecutor’s Association, and the LGBT committee chair for the Hispanic Lawyers’ Association of Illinois.

The Lopez Cepero vacancy has been pending now for some time. Illinois Supreme Court Justice Anne Burke posted an application for this process last January.

Monday, January 09, 2017

Justice Theis announces application process for new vacancies in 2nd, 4th Subcircuits

Illinois Supreme Court Justice Mary Jane Theis has announced that her screening committee will consider applicants for new Circuit Court vacancies in the 2nd and 4th Subcircuits.

The links in the preceding sentence will take you to the Court's press releases announcing the application processes.

Attorneys interested in either vacancy must submit their applications by 4:00 p.m., Friday, February 3. Applications can be requested through the Illinois Courts website (or click here to request 4th Subcircuit application; click here to request 2nd Subcircuit application.) Applications may be submitted by email to or by regular mail to Supreme Court of Illinois, Attn: Ms. Laurie Marino, 160 N. LaSalle Street, Suite N2013, Chicago, IL 60601.

Applicants must reside in the subcircuit from which they seek appointment. Persons who have previously completed an application for Justice Theis's special screening committee must nevertheless complete and submit a new application.

The 2nd Subcircuit vacancy is created by the pending retirement of Judge Camille E. Willis; the 4th Subcircuit vacancy is created by the retirement of Judge Thomas Davy.

Justice Theis's screening committee is co-chaired by retired U.S. District Court Judge Wayne R. Andersen and retired Illinois Appellate Court Justice Michael J. Gallagher.

Wednesday, December 21, 2016

Gerber appointed in 13th Subcircuit; Justice Burke announces new vacancy in 2nd Subcircuit

Michael Perry Gerber, an Assistant State's Attorney based in Rolling Meadows, was appointed yesterday to the Lawrence vacancy in the far northwest suburban 13th Subcircuit by the Illinois Supreme Court. According to ARDC, Gerber has been licensed as an attorney in Illinois since 1980.

Gerber's appointment is effective tomorrow, December 22, and expires on December 3, 2018. The Supreme Court presumably made this appointment on the recommendation of Justice Anne Burke. The Court never actually says---and trades do happen, from what I've been told---but this vacancy was announced by Justice Burke in October.

Meanwhile, on Monday, Justice Burke announced a new vacancy in the south suburban 2nd Subcircuit, this one created by the retirement of Judge James L. Rhodes (the link is to the press release).

Notice of the vacancy and details of the application process are posted on the Illinois Supreme Court's website at From there, follow the instructions on the "Latest News" scroller announcing the Second Judicial Subcircuit of Cook County vacancy.

Applications for this vacancy will be screened by a special judicial screening committee chaired by retired Supreme Court Chief Justice Benjamin K. Miller. Justice Burke established this screening committee in 2006.

The deadline for applications is 4:00 p.m. on January 18, 2017. Completed applications should be submitted by mail to Kevin Forde c/o. Forde Law Office, 111 West Washington Street, Suite 1100, Chicago, Illinois 60602. Monday's press release specifies that, to be eligible for consideration, an applicant for this vacancy must be a resident of the 13th Subcircuit (the far northwestern corner of the county)

Thursday, December 15, 2016

Myron Mackoff appointed to Pethers vacancy in 8th Subcircuit

The Illinois Supreme Court yesterday appointed Myron F. Mackoff to the 8th Subcircuit vacancy created by the recent retirement of Judge Sheryl A. Pethers.

The appointment, which is effective December 29, terminates on December 3, 2018.

Mackoff is a principal in the firm of Richardson & Mackoff. He was a finalist for Associate Judge in 2014. He has been licensed as an attorney in Illinois since 1994.

According to his firm biography, following his graduation from Northwestern University School of Law, Mackoff worked for several years in the Illinois Attorney General's Environmental Law Division. In 2002, Mackoff left the AG's office to join Hubert, Fowler, & Quinn, later known as the Hubert Law Group. After Donald Hubert's death, in 2006, Mackoff was chosen to wind down the affairs of the Hubert Law Group. Mackoff and Travis Richardson formed their firm in 2007.

Litricia P. Payne appointed to countywide vacancy

The Illinois Supreme Court yesterday appointed Litricia P. Payne, an Assistant Will County Public Defender, to the countywide vacancy created by the recent retirement of Judge Eileen Mary Brewer.

The appointment, which is effective December 30, terminates on December 3, 2018.

According to ARDC, Payne has been licensed as an attorney in Illinois since 1997. The Will County Public Defender's website reports that Payne is a Felony Courtroom Supervisor and a Mental Health Court team member in that office. She is a graduate of Loyola University Chicago School of Law and Illinois State University. Payne was in private practice before joining the Will County PD's office. According to the Will County PD website, Payne is a board member of the Black Bar Association of Will County. A 2008 article in the Chicago Tribune listed Payne as among the founding members of that group.

Wednesday, December 14, 2016

Hispanic Lawyers plan 1st Annual Judges Night for February 23

Sure, some of you are still figuring out your New Year's plans; others among you are already worrying about what plans your kids might be making for New Year's. The rest of us are still trying to figure out our Christmas or Hanukkah schedules.

But the Hispanic Lawyers Association of Illinois is thinking ahead. Past Noche Buena and Christmas, past Hanukkah (it comes late this year), past Kwanzaa, past El Día de los Reyes, past even the College Football Playoff. Yes, even beyond Super Bowl Sunday.

Maybe, to paraphrase the seasonal song, maybe it's much too early in the game, but the HLAI is asking you just the same: What are you doing Thursday, February 23?

As you'll note from the above 'Save the Date' notice, HLAI is looking for sponsors for the event. Contact Martin Quintana at Tickets can be obtained by clicking this link (and interested law students might want to buy tickets soon because only 25 tickets will be made available to students at $25 each).

Tuesday, December 13, 2016

The Russians really are everywhere!

Unless you've been in a coma, you're painfully aware that Russia is dominating the news these days.

It started, of course, during the election campaign. There were allegations that the Russians were behind the Wikileaks disclosures of DNC emails. Mr. Putin, it seems, did not like Hillary Clinton... something about the "reset" button that she showed up with early in her tenure as Secretary of State. There was an entirely unsubstantiated rumor, which I probably just made up, that the reset button was, in reality, a thinly disguised "that was easy" button from the Staples commercials of some years back. Putin pressed the button and was so offended by the message, which he thought was directed at him personally, that he immediately started planning the invasion of Ukraine.

I wasn't sure what the big deal was about the Wikileaks 'revelations' anyway. Many of these merely confirmed that the DNC rigged the primary process for Ms. Clinton and did everything possible to undermine Senator Sanders. But this was hardly news... all the talking heads on cable pretty much agreed that this was the official policy of the Democratic Party. Some were happier about it than others. And, though 'fake news' is much in what passes for 'real news' these days, the Wikileaks emails weren't fake.

The Russian hackers were supermen -- but with strangely limited powers. They could pounce on the DNC servers like muggers rolling a drunk tourist. There were whispers that they invaded Trump Tower, too, and were blackmailing the Donald. But they absolutely couldn't (and wouldn't dare!) access the private server in Hillary Clinton's home. (Consistency is the hobgoblin of little minds.)

After Trump's unforeseen election, the Russian-mania amped up still more: The Russians stole the election!

It's not clear what the predominant theory is on this. Either the Russians promoted all sorts of fake news that benefited Trump or their amazing hackers somehow actually put Trump votes into the voting machines themselves, undermining the Great Blue Wall in Pennsylvania, Michigan and Wisconsin. Well, the machines are electronic, aren't they? So what if many states went to electronic voting after the Hanging Chad fiasco of 2000? So what if these machines aren't actually connected to the Internet? Americans wouldn't vote for Trump, right? So it had to be Russian hackers. (This latter theory seems to be animating Dr. Stein's recount efforts.)

Trump has pooh-poohed the notion that the Russians helped him. It's a tempest in a teapot, perhaps, or a bubble in a bowl of borscht. It's pure coincidence that he proposes to appoint several officials in his forthcoming administration who have taken Russian gold from this oligarch, or that one.

But persons from across the political spectrum, from the aforementioned Dr. Stein on the left to former Congressman Joe Walsh on the right, and many actually responsible people in between, from both parties, have called for an investigation of Russia's actions.

Meanwhile, Russian hackers are turning up pretty much everywhere. Yesterday, for example, Rich Miller's Capitol Fax reported that the FBI told the Illinois Republican Party that the Russians had likely hacked some of its emails.

But the topper, for me at least, came just this morning.

Even when I have nothing to post, I try and check the blog every day. I never know when EP or Black Lady Who Reads or Lobo or THE PERSON WHO COMMENTS ONLY IN CAPS will have a new comment to share. I check my stats, too -- 2,902 page views yesterday -- the kind of number I used to see only in the few days before and after an election. So I was feeling pretty good about that.

But only for a couple of seconds.

The stats page also provides a map that shows a blogger where his or her page views are coming from. I generally don't pay much attention to mine: My map has always shown the United States in the darkest shade of green, meaning my readers are clicking in from somewhere in the United States. Although the map doesn't localize hits beyond that, I am highly confident that my readers are nearly all from Cook County. I met a Will County reader the other night... and I had to ask her... why?

But, anyway, here is my genuine, un-retouched stats map from this morning:

The Russians really are everywhere.

Tuesday, December 06, 2016

Justice Bertina E. Lampkin takes oath

You may have to squint some to see it, but in the center of this photograph you can see Illinois Supreme Court Justice Charles E. Freeman administer the oath of office to Appellate Court Justice Bertina E. Lampkin, elected this November to the court on which she has served for several years pursuant to Supreme Court appointment.

The ceremony was conducted yesterday evening at the Loop offices of Tabet DiVito & Rothstein LLC. Retired Appellate Court Justice Gino DiVito was among the speakers at the event. Also speaking were Cook County Chief Judge Timothy C. Evans, Circuit Court Judges Tommy Brewer and Leonard Murray, and attorney Kevin M. Forde. In addition to Justice Freeman, Supreme Court Justices Thomas Kilbride and Mary Jane Theis attended the event, as did retired Supreme Court Justice Benjamin K. Miller. Several of Justice Lampkin's colleagues on the Appellate Court were also on hand for the occasion including (but not necessarily limited to) Justices Cynthia Y. Cobb, Mathias W. Delort, Shelvin Louise Marie Hall, Nathaniel R. Howse, Jr., Mary L. Mikva, P. Scott Neville, and John B. Simon. If I missed someone, please excuse me: As the accompanying picture suggests, it was a crowded room.

Monday, December 05, 2016

New class of Circuit Court judges sworn in today

James Leonard Allegretti, Alison C. Conlon, Richard C. Cooke, Eulalia De La Rosa, Daniel Patrick Duffy, Jerry Esrig, Rossana Patricia Fernandez, Carolyn J. Gallagher, Aleksandra Gillespie, Carrie Hamilton, Maureen O’Donoghue Hannon, D. Renee Jackson, Marianne Jackson, Daryl Jones, Edward J. King, Steven A. Kozicki, Matthew Link, Anna Loftus, John Fitzgerald Lyke, Jr., Freddrenna M. Lyle, Mary Kathleen McHugh, Leonard Murray, Brendan A. O’Brien, Kevin Michael O’Donnell, Susana L. Ortiz, Jesse Outlaw, Patrick Joseph Powers, Marguerite Ann Quinn, Catherine Ann Schneider, Patricia S. Spratt, and William B. Sullivan were all sworn in today as Cook County Circuit Court judges.

Cook County Chief Judge Timothy C. Evans and 7th Circuit Senior Judge William J. Bauer administered the oath. (Judge Eve Marie Reilly, who was also elected in November, was unable to attend today's ceremony.) Nearly half of the new class was already serving in the judiciary before today, either pursuant to Supreme Court appointment or as an Associate Judge.

Several politicians and bar presidents were present to witness the occasion. Of those in the front row, above, only Cook County Commissioner John Daley did not speak. From left, the Rev. Marvin E. Wiley of the Rock of Ages Baptist Church in Maywood gave the invocation, while the Rev. Mr. Daniel G. Welter, a Roman Catholic Deacon (and former associate judge) gave the convocation. To Mr. Daley's right are Cook County Public Defender Amy P. Campanelli and Illinois Attorney General Lisa Madigan. Both Campanelli and Madigan offered congratulations and advice to the new jurists.

Also speaking at today's ceremony were Judge Bauer, Chief Judge Reuben Castillo of the United States District Court for the Northern District of Illinois, and Illinois Supreme Court Justices Thomas L. Kilbride and Mary Jane Theis. Judge Moshe Jacobius, who is the Presiding Judge of the Chancery Division, and the Secretary of the Circuit Court, called the roll of today's inductees.

Friday, December 02, 2016

JIB files complaint against Judge Valarie E. Turner

The Illinois Judicial Inquiry Board today filed a Complaint with the Illinois Courts Commission against Judge Valarie E. Turner, charging that she is "mentally unable to perform her duties." The JIB Complaint specifically alleges that Judge Turner has been recently diagnosed with Alzheimer's disease and suffers from memory loss.

Turner, as FWIW readers know, was the Markham-based judge that let then-law clerk Rhonda Crawford don Judge Turner's robe and preside over some traffic cases.

The Complaint does not ask for any specific relief from the Courts Commission, only that it "make such order in accordance with Section 15 of Article VI of the Illinois Constitution as the Commission may deem appropriate" (Section 15 of Article VI being the section of the Constitution that creates the JIB and Courts Commission, expressly giving the latter the authority, after notice and public hearing, to "retire a Judge... who is physically or mentally unable to perform his or her duties").

David Thomas has more in the Chicago Daily Law Bulletin (subscription required).

Patrick T. Stanton appointed to 3rd Subcircuit vacancy

On the recommendation of Justice Mary Jane Theis, the Illinois Supreme Court today appointed Patrick T. Stanton to the 3rd Subcircuit vacancy created by the retirement of Judge Maureen F. Delehanty.

The appointment is effective January 1, 2017 and expires December 3, 2018. The Court's press release announcing the appointment can be accessed by the link in this sentence.

Stanton has been licensed as an attorney in Illinois since 1993. He currently is a member of Dykema Gossett, PLLC. According to the both the linked firm biography and the Supreme Court's press release, Stanton serves as the firm's Lateral Recruiting Partner and is the former Managing Member of the firm's Chicago office. He began his legal career as a law clerk to U.S. District Court Judge George M. Marovich.

Thursday, December 01, 2016

Judge Fredrick Bates tapped for Lampkin vacancy in 2nd Subcircuit

Justice Bertina E. Lampkin will be sworn in Monday as an elected Justice of the Illinois Appellate Court (she has served on that court for several years pursuant to Supreme Court appointment).

Justice Lampkin's elevation will create a vacancy in the 2nd Subcircuit (in addition to being elected to the Appellate Court last month, Justice Lampkin was simultaneously retained as a Circuit Court judge).

The new vacancy won't last long.

Judge Fredrick H. Bates, whose appointment to the countywide Walsh vacancy will end when Patrick Joseph Powers takes his oath of office Monday, was appointed yesterday by the Illinois Supreme Court to fill the Lampkin vacancy, effective December 5 (the new appointment will expire on December 3, 2018) (see corrected order changing effective date of appointment from December 6 to December 5).

Monday, November 21, 2016

TV report accuses Circuit Court judge of taking unnecessary sick leave

A Cook County Circuit Court judge, Arnette Hubbard, was recently singled out by WBBM-TV in an investigative report by Pam Zekman for taking 17 months of paid sick leave as a result of injuries allegedly sustained in an altercation outside the Daley Center in July 2014. The link will take you to Ms. Zekman's piece.

Judge Hubbard was one of the judges retained in office at the November election just concluded. She was unanimously recommended for retention by the Chicago Bar Association and each of the member groups of the Alliance of Bar Associations for Judicial Screening. The evaluation process is confidential, so I can not tell you authoritatively that the bar associations were aware that Judge Hubbard had been off work for any extended period (whether 17 months or some, other, lesser figure) -- but I would bet a significant sum that this was indeed known, and explored by, the various bar groups before each group made their respective recommendations.

The person involved in the altercation with Judge Hubbard, a man by the name of David Nicosia, was charged with aggravated battery and a hate crime as a result of this incident. He was acquitted of these charges this past August after a bench trial before Judge James Obbish.

The implication of the Channel 2 report was that Judge Hubbard was not seriously injured in the altercation. However, the defendant's acquittal in the criminal case is not conclusive on whether Judge Hubbard was in fact injured or whether Mr. Nicosia is legally responsible for those injuries. Judge Hubbard has sued Nicosia for damages. She is represented by Power, Rogers, and Smith LLP in the 2016 Law Division case. Mr. Nicosia is represented by Breen & Pugh, the firm that represented him in the criminal case. This, presumably, is because Mr. Nicosia's insurer has asserted a reservation of rights and agreed to allow Mr. Nicosia to choose his own attorney to avoid a potential conflict of interests. Criminal defense attorney Thomas M. Breen is prominently featured in Zekman's report.

The Cook County Bar Association has issued a statement demanding an apology and retraction of the story from Channel 2.

Nothing here advances the story in any particular; however, the Channel 2 piece about Judge Hubbard was recently raised in a comment submitted to this blog. So there are apparently rumors circulating; these are the known facts, as best as I can ascertain them.

Diversity Scholarship Foundation Unity Dinner set for December 1

The 2016 Diversity Scholarship Foundation Unity Dinner and All-Bar Swearing In Ceremony and Reception is set for December 1 in the Grand Ballroom of the Chicago Hilton, 720 South Michigan Avenue. The Reception begins at 5:00 p.m.; the dinner and program follows at 6:00 p.m.

Tickets are $150 each (a table of 10 costs $1,500) are available at this link (there is a small service charge).

Persons interested in sponsoring the event are invited to email

Persons to be honored at the dinner as Advocates for Diversity are Chasity Boyce, Diversity & Inclusion Projects Manager, Skadden, Arps, Slate, Meagher & Flom LLP; Hon. William J. Haddad (Ret.); Tiffany Harper, Associate Counsel, Grant Thornton LLP; Cecilia Horan, Partner, Hinshaw & Culbertson LLP; and Hon. Jorge L. Ortiz, Chief Judge, Circuit Court of Lake County. An Access to Justice Award will be presented, in memoriam, to the late Appellate Court Justice Laura C. Liu. Illinois Secretary of State Jesse White will receive the Unity award and scholarships will be presented to 20 law student award recipients.

Law Professor claims that part of the Constitution is unconstitutional

It could be satire, of course. That would be the best case scenario. For some reason, satire is notoriously hard to separate from mere stupidity on the Internet. In fact, satire seems to attract stupidity; thus, every now and then, the North Koreans or the Iranians mistake a yarn on the Onion for a serious news story.

The article in question here, "Is The Electoral College System For Choosing Our President Unconstitutional?" appeared in the Huffington Post. The Huffington Post is not the Onion. At least not intentionally, or all the time. So this makes the determination of whether this article is meant to be laughed at, instead of merely laughable, that much more difficult.

And there really is a Professor Leon Friedman who teaches Constitutional Law at Hofstra University, in Hempstead, New York. He is pictured at left. And he's no adjunct, either; Friedman is the Joseph Kushner Distinguished Professor of Civil Liberties Law. That sounds impressive. Tuition at the Maurice Deane School of Law at Hofstra University is a cool $54,250 a year, according to this U.S. News & World Report web page. This, too, sounds impressive. According to Wikipedia, only 57.7% of the 2014 graduates of the Deane Law School had found "full-time, long-term, JD-required employment nine months after graduation." This seems less impressive.

A possible partial explanation for this anemic statistic is suggested if the article was intended to be serious.

Of course, it could be a case of stolen identity. Some jokester may have bamboozled the Huffington Post into believing that the Professor Friedman who contributes articles is the real Professor Friedman who teaches at Hofstra. As FWIW recently reported, there have been some fairly sophisticated identity appropriations out here in the Ether. On the other hand, the bio of the Huffington Post's Professor Friedman lines up fairly well with that of the apparently real prof.

At the risk of foolishly mistaking satire for seriousness, let's get this out of the way: The Electoral College can't be unconstitutional, because it is expressly provided for in the Constitution. Twice. First by Article II, Section 1, and then again by the 12th Amendment. You know, the Amendment drafted after the Election of 1800 resulted in a tie between Thomas Jefferson and Aaron Burr? While constitutional law professors on Long Island may not have much working knowledge of the original document, one would think they'd be conversant with that musical still playing on Broadway, Hamilton.

Now, there might be an argument that the Electoral College has outlived its usefulness to the nation and should be abolished in the only way possible (for the benefit of any law professors in the audience, that would be by constitutional amendment). It's a bad argument, in my opinion, because the need to prevail in the Electoral College should force a candidate to seek support in a majority of the states, and not just seek majorities in the largest population centers. In this way a candidate must try and build a truly national consensus. This helps hold the nation together after a close national election. Also, properly functioning, the Electoral College serves as a mandate multiplier, which again serves the laudable purpose of bringing the nation together after a close national election.

Most national elections are close. A few million votes, and only a few percentage points, separate the winner and loser. But---usually---the Electoral College turns that close result into a seeming landslide for the popular vote winner.

No, that's not what happened this time. Or in 2000. Or in 1876. Or in 1824. But that's the whole list. And, in three of those four elections, third and/or fourth party candidates prevented the top vote-getter from achieving a majority of the votes case (the exception was Samuel Tilden in 1876; he had 50.9% of the vote).

But, writes, Professor Friedman---or whoever really wrote that Huffington Post piece---"each Presidential vote in Wyoming is worth 3.6 times more than each vote in California."

A graph depicting this same 'disparity' has been floating around Facebook of late.

It is a dishonest, emotional argument: Wicked voters in backward, barbarian Wyoming outweighed enlightened voters in sunny, sophisticated California.

Here's how the Electoral College is actually put together: All states start with two electoral votes -- one for each senator. Each state's additional electoral votes comes from the number of representatives it has in the House. Wyoming has one representative for its 584,000 population; thus, it gets one more electoral vote, for a total of three. At the other extreme, California has 55 electoral votes -- for its two senators and 53 representatives. Each of the 53 House members in California represents, according to the numbers in the graphic, about 735,000 people. This is a discrepancy, yes, but not as great as the graph would suggest. And the discrepancy has nothing to do with the Electoral College; this is, rather, a function of the House of Representatives choosing not to grow with the national population.

The size of the House is not a Constitutional problem. Article I, Section 2 of the Constitution provides only, "The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative." Although the House was regularly expanded during the 1800s (from the original 65 reps in 1789) the size of the House has been capped at 435 since 1911 -- and a lot has changed in the past century.

Texas is arguably even more shortchanged than California -- each of the 36 House districts in that state have a population of approximately 763,000. Montana has over a million people in its sole House district.

Rhode Island voters would have more electoral college clout than voters in either Wyoming or California, according to the reasoning of Professor Friedman or the Facebook graph. Rhode Island has two representatives (thus, four electoral votes) even though its two districts have populations of only about 528,149. By contrast, each of Idaho's two congressional districts contains roughly 827,000 persons. So, Idaho's four electoral votes are worth 'less' than Rhode Island's.

The Electoral College did not cause these discrepancies. These are caused entirely by the size of the House of Representatives. And all because of a law passed over a 100 years ago -- which, by the way, absolves both the Clintons and Donald Trump alike from responsibility.

Nor is the Electoral College responsible for the fact that, according to respectable polls from all shades of political opinion, the candidates of the major parties this year were the arguably the least popular national candidates of all time. Neither was particularly popular in their own party. Their presence at the top of their respective tickets suggests major flaws in the presidential primary process, but not in the Electoral College.

Certainly the primary process in both parties needs major, structural, fundamental reform. Maybe the size of the House of Representatives should be expanded while we're at it. But the Electoral College, whatever else its flaws may be, is not unconstitutional. If a 'distinguished' law professor was seriously arguing otherwise, we have a further illustration of why new law graduates, from any school, must take a bar review course to have any hope of passing any bar exam.