Tuesday, April 25, 2017

Campaign website, May 11 fundraiser announced for Judge Cecilia Anne Horan

Supporters of Judge Cecilia Anne Horan's bid to retain her seat have launched a campaign website on her behalf and announced a May 11 fundraiser. That's a link to the website in the preceding sentence; when enough candidate websites have been launched, this link will be included in the blog sidebar.

The Thursday, May 11 fundraiser for Judge Horan will be held at the Old Crow Smokehouse, 149 W. Kinzie. Colette Kopon, Moses Suarez, Giulia Volini, and Cook County Commissioner Larry Suffredin are listed as the sponsors for the event, which will run from 5:00 to 7:00 p.m.

Tickets are $150 each, but sponsorships are available ($250 - Supporter, $500 - Patron, $1,000 - Sponsor, $1,500 - Host, and $2,500 - Chair). For more information about the event, or to reserve tickets, call (773) 562-9559 or email eric@blueprintcampaignconsulting.com.

The Illinois Supreme Court recently appointed Judge Horan to the countywide Hartigan vacancy. Prior to her appointment, Horan was a partner at Hinshaw & Culbertson LLP. Horan is the President of the Lesbian and Gay Bar Association of Chicago and, according to the biography on her campaign website, serves on the board of directors of her neighborhood organization, West Edgewater Area Residents (WEAR). A lifelong Chicago resident, Horan is a graduate of Taft High School and Columbia College. She was licensed to practice law in Illinois in 1997.

Some photos from last week's fundraiser for Judge Shoffner


A reader was kind enough to send in these pictures from last Thursday's fundraiser for Judge Robin D. Shoffner. The candidate is shown in the left photo with the two sponsors of her event, 3rd Ward Ald. Pat Dowell and Cook County Board President Toni Preckwinkle.

As a practical matter, I don't get out to many (most!) events plugged here on FWIW, but -- for future reference -- if you have photos of an event that you'd like to share, email me at jackleyhane@yahoo.com and I will run them if and when I can. (That means no promises and no commitments, but I'll do what I can when time and space and the day job permits.) Be sure and provide as much information as you can about who is in the photos, where they were taken, and so forth.

Thursday, April 13, 2017

An arrest made in the murder of Judge Myles

Per Erica Demarest and Tanveer Ali on DNAInfo.com, Joshua Smith has been arrested for the murder of Associate Judge Raymond Myles. A bond hearing for Smith will be held today. Smith previously served time for armed robbery, according to the DNAInfo post.

Also according to the DNAInfo post, at least one other suspect is being sought. According to police officials quoted by Demarest and Ali, Judge Myles was targeted for robbery -- but apparently not because of his occupation.

Related: WGN-TV coverage of Smith arrest.

Some days it's hard to be Dr. Pangloss

Presented without further comment:

Monday, April 10, 2017

Judge murdered this morning outside his South Side home

Cook County Associate Judge Raymond Myles was shot multiple times early this morning outside his home in the West Chesterfield portion of Chicago's Roseland Community. He was pronounced dead at Christ Hospital in Oak Lawn soon thereafter; a lady accompanying the judge was wounded in the attack and is expected to survive. The Chicago Tribune Breaking News coverage can be accessed at this link.

DNAInfo,in a story reported by Kelly Bauer and Erica Demarest, indicates that the incident might have started out as an attempted robbery.

Chief Judge Timothy C. Evans issued the following statement concerning the passing of Judge Myles:
I join all of the judges today in the Circuit Court of Cook County in expressing our sadness regarding the tragic passing of our colleague and friend, Associate Judge Raymond Myles. I offer my deepest condolences to his family, friends and colleagues in the Criminal Division.

Judge Myles joined the court in October 1999 when the Illinois Supreme Court appointed him to fill a vacancy that he held for just over a year. The circuit judges appointed him as an associate judge in June 2001, and he has served in the Criminal Division since March 2009.

Judge Myles joined the bench with a wealth of experience in law and extensive service to the community. I have always known Judge Myles to be focused and determined in the pursuit of justice, and his conduct earned him the confidence and respect of the people who appeared before him.

All of our colleagues at the Leighton Criminal Court Building will miss Judge Myles, who they came to know for his kindness and his impartial administration of justice.

Wednesday, April 05, 2017

CCBA sponsors May 2 judicial reception

The Cook County Bar Association, in conjunction with the Illinois Judicial Council, are hosting a judicial reception on Tuesday, May 2, from 5:00 to 7:30 p.m. at the Fremont Chicago, 15 West Illinois Street.

There will be an open bar and complimentary hors d'oeuvres will be served.

Tickets are $65 each for CCBA members, $100 for others (except that students, with ID, will be admitted for $25). All sitting judges will be admitted gratis.

Tickets can be purchased on the Cook County Bar Association website.

April 20 fundraiser for Judge Robin D. Shoffner

Supporters of Judge Robin D. Shoffner, including Cook County Board President Toni Preckwinkle and 3rd Ward Ald. Pat Dowell, are holding a fundraiser for their candidate on Thursday, April 20, from 5:30 to 7:30 p.m., at the Victory Tap, 1416 S. Michigan Ave.

Tickets for the event are $150 each, and sponsorships are available (for $250, $500, or $1,000). For more information about the event, or to order tickets, email info@craticshaffer.com.

Judge Shoffner currently sits by Supreme Court appointment to the Fabri vacancy in the 8th Subcircuit.

Monday, April 03, 2017

FAQs about FWIW

This is a post I reprint (and revise) every now and again. It seems so early, but the 2018 cycle is clearly underway. If this cycle is like every other recent one, there are some new readers joining us these days, including prospective judicial candidates and their supporters. These new readers may have questions about this blog. (A lot of this stuff is already addressed in the blog Sidebar, but it may not hurt to spell it out here, too.) Also, this seems like a good opportunity to restate some of the groundrules for regular visitors.

This is a non-partisan blog. FWIW readers are often passionately partisan, and the current political situation seems likely to inspire more outspoken engagement than ever, at least in recent memory. However, I want to cover all candidates running for judge in Cook County. Because Democratic candidates have historically enjoyed such tremendous success in this county, to the point where Republicans do not bother to contest many races, most of the posts here will be about candidates in the Democratic primary. But I will gladly cover---and have covered---Republican candidates, too. If a candidate has a website, and I can find it, or someone sends me the link, I will link to it and, when we have enough accumulated, post another link in the blog Sidebar.

This blog does not make endorsements. Over the years I've been doing this, I always seem to know at least some of the candidates, whether I've had cases with or against them, or because we've met through bar functions, or because we've met through this blog. I will mention significant connections, but I don't think the public cares how many candidates I've met, and I am certain the public does not care who I intend to vote for. On the other hand, while I won't make individual endorsements, I have been a lawyer for 37 years and I have fairly well-developed opinions about what I want for my clients when I appear in court. I reserve the right to talk about that -- in general terms -- in future posts.

Just because I know a candidate, or some of their supporters, does not mean I will provide more or better exposure for them here. Certainly not on purpose. Readers will undoubtedly see more 'stuff' about some candidates than others, but that is only because some candidates make more of an effort to ask me to publicize events. I have a day job. So I don't see everything that every candidate puts up on their own websites or Facebook pages. Also, some of the stuff I do get (and because I've been doing this awhile I'm on a lot of email blast lists) are for events that the candidate may or may not want to publicize. A good (and frequent) example is a fundraiser in a private home. I won't put anyone's home address out in the Internet for all to see unless I'm asked to. The best way for candidates to get me to publicize their events is to email me an invite at jackleyhane@yahoo.com -- with a request for me to run a post about the event.

Every election cycle, some candidates will complain that I haven't 'reported' their bar ratings -- and I don't, generally, unless there's something I think newsworthy about them. However, I will report everyone's bar ratings all at once -- when the bar groups (the CBA and the Alliance) release their ratings to the public.

I've made an editorial decision to try and present all candidates in the most positive light that I can, especially in my first post about a campaign. But not all candidates are created equal: Some are older, some are younger, some have tons of relevant experience, other have very limited experience. Some may even have run afoul of the disciplinary authorities. When the bar association evaluations come out, later in the election cycle, some candidates will have entirely favorable ratings, but others will not. Bar associations can and do differ over the merits of particular candidates. All of this is fair game for FWIW. But I'm not going to go out of my way to slam anyone.

In past election cycles I have given candidates the opportunity to make their own case (click here to bring up posts written by judicial candidates in prior campaigns). I plan to do this again; expect an announcement around the first of the year.

I believe the best candidates will distinguish themselves when as much information as possible about every candidate is presented for the voters' consideration. In addition to bar evaluations, I will advise of newspaper endorsements (if they're made) or community group or union endorsements (when I can verify them). I'll re-post video interviews when I can. All of this stuff will be collected in Organizing the Data posts (explained more, below) as the primary date comes closer.

Judicial candidates and committees do not pay for posts appearing on this blog. Every year, someone asks. Later on, you may see candidate ads in the spaces I set aside for Google ads on this page, but I do not book those ads. I personally do not accept candidate ads. I will accept ads from persons or companies looking to offer products or services to judicial candidates; see the blog Sidebar for additional information.

In this very early stage of the election cycle, judicial election posts on FWIW are read primarily by candidates, their supporters, and persons who are thinking about running for judge in the future. A lot of judges tell me that they visit here regularly; so do persons affiliated with the various bar association judicial evaluation committees. As the primary date draws close, this site will be increasingly visited by voters looking for information. The information that candidates and their supporters have provided, post by post, will be collected and 'packaged' for the voters. Candidates may want to look at past Organizing the Data posts to get a feel for the kind of information has been collected and posted. I'm always looking to enhance the functionality of this site and I reserve the right to make any improvements within my abilities.)

FWIW covers Cook County judicial elections because the newspapers and other media outlets provide so little coverage. Having run for judge twice myself (in 1994 and 1996) I appreciate just how little opportunity judicial candidates have to get their credentials before the public. I've already stated my editorial bias in favor of trying to present candidates in the best possible light, at least in my initial post about any given campaign. However, I reserve the right to fact-check information provided, to add information I've discovered on my own, to combine or even ignore duplicative releases. In short, I reserve the right to edit and to report within the limits of my abilities and resources.

Comments on this blog are 'moderated.' This means I read any comment that anyone cares to leave and decide whether or not it will get posted. A lot of readers tell me that they enjoy the comments here -- but they don't see all the droppings left by the trolls in my inbox. Frankly, it's depressing -- and I think it's getting worse over time. I suppose the proliferation of trolls is yet another symptom of our current hyperpartisan political climate.

I believe in the First Amendment. But this is my blog, not Bughouse Square, and if you think I'm clinging irrationally to Victorian sensibilities, that's just too bad. I reserve my right to 'flush' any comment, including the toxic gunk left by the trolls.

Commenters: Be civil. If you must be partisan or mean, be clever. Or funny. Or creative. Or else go away. I'd really appreciate it you would leave a name, but I've come to realize I'm probably the only person dumb enough to put my name out here. Maybe (as some commenters have done) you could pick, and use, a nom de plume.

Thursday, March 30, 2017

Anthony C. Swanagan appointed to 15th Subcircuit vacancy

In an order entered yesterday, the Illinois Supreme Court appointed Anthony C. Swanagan to the 15th Subcircuit vacancy created by the retirement of Judge Frank G. Zelezinski.

Swanagan's appointment is effective April 24 and terminates December 3, 2018.

According to ARDC, Swanagan has been licensed as an attorney in Illinois since 1987. He currently serves as a career clerk to U.S. District Court Judge Andrea R. Wood. Earlier in his career, Swanagan was employed by Jones, Ware & Grenard and as general counsel for Galileo International, Inc.

Sunday, March 26, 2017

2018 campaign website announced for Judge Fredrick H. Bates

A campaign website has been established for Judge Fredrick H. Bates. That's a link to the website in the preceding sentence; when there are a few more of these, this will be added to the list of campaign websites I'll set up in the blog sidebar.

Judge Bates currently serves by appointment to the Lampkin vacancy in the 2nd Subcircuit. His campaign website touts his two years' experience as a Circuit Court judge (prior to his current appointment, Judge Bates served in a different, countywide vacancy), 15 years as an administrative law judge, and 15 more as an attorney. The site lists attorneys Louis C. Cairo, of Goldberg Weisman & Cairo, and Larry Rogers Jr., of Powers, Rogers & Smith as campaign co-chairs (Rogers also serves as a Commissioner of the Board of Review). The website also lists 34th Ward Ald. Carrie M. Austin, 9th Ward Ald. Anthony Beale, 21st Ward Ald. Howard B. Brookins, Cook County Board President Toni Preckwinkle, 6th Ald. Roderick Sawyer, and Cook County Recorder of Deeds Karen Yarbrough are listed as honorary campaign co-chairs.

Saturday, March 25, 2017

Who Sits Where -- Supreme Court Rule 67(B)(2) Edition

Supreme Court Rule 67(B)(2) provides (emphasis supplied),
A [judicial] candidate shall not personally solicit or accept campaign contributions. A candidate may establish committees of responsible persons to conduct campaigns for the candidate through media advertisements, brochures, mailings, candidate forums and other means not prohibited by law. Such committees may solicit and accept reasonable campaign contributions, manage the expenditure of funds for the candidate's campaign and obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting and accepting reasonable campaign contributions and public support from lawyers. A candidate's committees may solicit contributions and public support for the candidate's campaign no earlier than one year before an election and no later than 90 days after the last election in which the candidate participates during the election year.
We will pause now for an important message:
I am not an election lawyer. Persons interested in running for judge should consult with an election lawyer of their own choosing before making any campaign-related decisions.
However, with that clearly stated, I believe it is safe to say that it is now legal for judicial wannabes to establish committees and for those committees to raise funds.

A lot of the blanks have been filled in since the last time I ran this list, but there will be more vacancies, if there aren't already. This list will be updated as circumstances warrant and time permits.

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 -- Marina E. Ammendola
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 -- Adrienne E. Davis
Vacancy of the Hon. James L. Rhodes -- Toya T. Harvey
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 -- H. Yvonne Coleman

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

Monday, March 20, 2017

Coleman appointed to Banks vacancy in 5th Subcircuit

The Illinois Supreme Court today appointed Loop practitioner H. Yvonne Coleman to the 5th Subcircuit vacancy created by the recent retirement of Judge Patrica Banks. The appointment, which is effective next Monday, March 27, expires on December 3, 2018.

According to her LinkedIn profile, Coleman concentrated her practice "in employment and civil rights litigation, workplace investigations, and mediation." She previously served, according to the LinkedIn profile, as Bureau Chief of the Civil Rights and Disability Rights Bureaus in the Office of the Illinois Attorney General, and as Manager and Chief Hearing Officer, Appeals Division, with the Illinois Department of Employment Security. Coleman also served as General Counsel with the City of Chicago Independent Police Review Authority, according to LinkedIn.

Coleman has been licensed as an attorney in Illinois since 1988. She filed for a countywide vacancy in the 2014 Primary, but withdrew from that race. She also filed for a 5th Subcircuit vacancy in the 2016 election cycle, but withdrew from that race also.

Thursday, March 09, 2017

Two vacancies filled in Second Subcircuit

In separate orders yesterday, the Illinois Supreme Court appointed a pair of Cook County Assistant Public Defenders, Toya T. Harvey and Adrienne E. Davis, to two Second Subcircuit vacancies.

Harvey (pictured at left) was appointed to the vacancy created by the recent retirement of Judge James L. Rhodes. Harvey has been licensed as an attorney in Illinois since 1995, according to ARDC. Her appointment is effective on Thursday, March 16 and terminates on December 3, 2018.

An application process for the Rhodes vacancy was posted by Illinois Supreme Court Justice Anne Burke.

Davis was appointed to the vacancy created by the retirement of former Markham Presiding Judge Marjorie C. Laws. Davis, who has served as a part-time faculty member at Loyola University Chicago School of Law, has been licensed in Illinois since 1994, according to ARDC. Her appointment is effective on March 17; it also terminates, of course, on December 3, 2018.

Wednesday, March 01, 2017

272 apply for associate judge in Cook County

If not all, then almost all of the recently appointed judges seem to have also completed applications for this new class of associate judges. The Supreme Court may giveth, but the Democratic Party sometimes taketh away. It's best to hedge one's bets.

Several former judges are on this list as well. Some of these were slated when they ran; some weren't. However, as I'd suggested in a Page Two post back in 2015, slating buys only credibility and access. The $40,000 buy-in (or whatever it may be for 2018) is like an NFL seat license: It just buys the candidate the right to buy tickets, in this case tickets to everybody else's fundraisers. And ads in everyone's adbooks.

And then, of course, there's SLATING... and then there's slating. And the electorate can be fickle, even when the committeemen are faithful. So, for many reasons, some judges wind up ex-judges, hoping to return via the associate judge selection process. Some just lost their spots; some have been gone for awhile.

FWIW readers will recognize a number of applicants on this list as candidates in previous election cycles. Many of these have applied for associate judge before as well. Some names will be particularly familiar because they'd previously made it to the Almost-Promised Land of the Fabled Short List. Almost-promised. These former finalists stand once again outside the wardrobe door, hoping it will fully open into Narnia this time but, if history is any guide, many will find only old coats.

Anyway, without further preface, here is the list of applicants.
  1. ADDUCI, Nancy Galassini
  2. AGRAWAL, Rishi
  3. AHMAD, Mohammad A.
  4. AIMEN, Julie Bess
  5. AIRAUDI, Joy Christine
  6. ALLEN, Shay T.
  7. ALONSO, Amee Elizabeth
  8. AMMENDOLA, Marina E.
  9. ANDREOU, Frank John
  10. ANTONIETTI, Erin Haggerty
  11. ARNOLD, Kina Nicole
  12. AUGUSTUS, Maria
  13. AYALA-GONZALEZ, Laura
  14. BAE, Jennifer Eun
  15. BALSON, Laura Adeline Shadle
  16. BARRETT, Michael Brendan
  17. BARRIDO, Jerome Celis
  18. BAUM, Gideon Abraham
  19. BAUMANN, Deidre
  20. BEACH, Charles Stanley
  21. BENSON, John Christopher
  22. BRAVE, Sunil Shashikant
  23. BILBREY, Kimberly R.
  24. BLAKE, Sandra Mary
  25. BLINICK, Robert Kendall
  26. BLUMENTHAL, Jeffrey S.
  27. BONDS TALLEYRAND, Andrea Daenille
  28. BRASSIL, John Hugh
  29. BRENNAN, Daniel H., Jr.
  30. BROOKS, Lloyd James
  31. BUIKEMA, Joel David
  32. BUNTINAS, Arunas R
  33. BYRNE, James Luke
  34. CAGE, Patrick Bernard
  35. CARROLL, John P., Jr.
  36. CASEY, Carol Anne
  37. CENAR, Richard G.
  38. CHRlSTOPHELL, Steve
  39. CHRONES, Jeffery George
  40. CHUPACK, Joel Louis
  41. CLARY, Joseph P.
  42. CLEARY, Gerald Vernon Patrick, III
  43. COAKLEY, Kellyn Doyle
  44. COLEMAN, H. Yvonne
  45. COLLINS, Cary James
  46. COOK, Christine Elizabeth
  47. COOPER, Christopher C.
  48. CORTESI, Nicholas James
  49. COSGROVE, Audrey Victoria
  50. COYNE, Daniel Thomas
  51. CRAWLEY, James Patrick
  52. CUNNINGHAM, Kevin P.
  53. CURRIN, Margaret Elizabeth
  54. CUSHING, Thomas Maloney
  55. DALY, Colleen Reardon
  56. DAUPHIN, Yolaine Marie
  57. DAVIS, Adrienne Elaine
  58. DAWKINS, Barbara Lynette
  59. DELGADO, Kent A.
  60. DE MATTEO, Gabriel Joseph
  61. DERICO, James Thomas, Jr.
  62. DICKMAN, Michael Joseph
  63. DIMOND, Karen Jane
  64. DOLAN, Alice Elizabeth
  65. DUNNEBACK, James Francis
  66. DYER, Deidre Myra
  67. EBERSOLE, Sabra Lynne
  68. EMBIL, Diana Lenore
  69. EVANS, Carl Lauras, Jr.
  70. FALAGARIO, Michael James
  71. FARMAKIS, Athena Aphrodite
  72. FELDMAN, Stephen Jason
  73. FELICIONE, Laura Lechowicz
  74. FERRANTE, Mark Vincent
  75. FLEMING, Dennis Michael
  76. FLORES, Barbara Nubia
  77. FORESTER, Laura Ellen
  78. FORTI, Michael Angelo
  79. FOTOPOULOS, John S.
  80. GALHOTRA, Kulmeet Singh
  81. GERBER, Michael Perry
  82. GILL, Jennifer Lynn
  83. GIOVANNINI, Dennis Arthur
  84. GLORIOSO, Mauro
  85. GOLDEN, Jean Mary
  86. GONZALEZ, Jennifer Lynn
  87. GONZALEZ, Peter Michael
  88. GOODRUM, Bernice
  89. GORDAN, Elias Martin
  90. GREEN, Jonathan Clark
  91. GREEN, Sanju Oommen
  92. GUDINO, Ruth Isabel 
  93. HANLON, James Edward, Jr.
  94. HARRIS, Robert Forsyth
  95. HARVEY, Toya Tinette
  96. HELLNER, Mark L.
  97. HENRY, Sheree Desaree
  98. HILL, Lawrence Napoleon
  99. HODAL, Joseph Anthony
  100. HOGAN, Michael James, Jr.
  101. HORAN, Cecilia Anne
  102. HOURIHANE, John Nahum
  103. HOVEY, Robert Jerome
  104. HOWSE, Natalie Lynn
  105. HUDSON, Nathalina A.
  106. HUGE, Lindsay Christopher
  107. HUGHES, Kevin Christopher
  108. JANNUSCH, Matthew William
  109. JOHN, Patrick Dankwa
  110. JONES, Celeste Kathleen
  111. JONES, Preston, Jr.
  112. KAHN, Eileen Susan
  113. KANTAS, Nicholas Alexander
  114. KARAVIDAS, Theodore George
  115. KARDAS, Kim Richard
  116. KARKULA, Elizabeth Anne
  117. KESSLER, Sheri C.
  118. KOCH, James B.
  119. KOEHLER, Julie Ann
  120. KOUGIAS, Thomas Peter
  121. KOZICKI, Scott Michael
  122. KREMIN, David Keith
  123. KRISLOV, Clinton Arthur
  124. KRUEGER, Steven Philip
  125. KUBALANZA, Joan Marie G.
  126. LACEY, Sammy Ward
  127. LANAHAN, Kathaleen Theresa
  128. LARIMER, Angela Sue
  129. LEVIN, Ellis Bernard
  130. LEVIN, Lawrence Wolf
  131. LOIZON, Yvette Colette
  132. LUBY, William Joseph
  133. LUQUE-ROSALES, Mercedes
  134. LUSKIN, Joshua Dante
  135. MACKOFF, Myron Franklin
  136. MAHER, John G.
  137. MAKOWSKI, Donna B.
  138. MALONE, Kimberly Michelle
  139. MALONEY, Edward James
  140. MALONEY LAYTIN, Kerrie Elizabeth
  141. MARCONI, Jerome Frank
  142. MARKOFF, Robert Glenn
  143. MAROVICH, Michael Jay
  144. MAYS, Celestia Laurene
  145. MECZYK, Ralph Eugene
  146. MELCHOR, Mary Alice
  147. MESSINEO, James Michael
  148. McCARTHY, Kelly Marie
  149. McCONVILLE, Terrence James
  150. McGUIRE, Thomas Frank
  151. McKENNA, Scott Darrell
  152. McMAHON, William John
  153. McNULTY, John Wesley
  154. MILLER, Stephanie Kathryn
  155. MOJICA, Lisette Catherine
  156. MOLITOR, Thomas Raymond
  157. MOLTZ, Ira Alexander
  158. MONREAL, Adam Peter
  159. MONTES, Paul Joseph, II
  160. MOORE, Kelly Ann
  161. MORRIS, Tisa Lynne
  162. MORRISSEY, Thomas Anthony
  163. MULAY, Megan Kathleen
  164. MULLENIX, James David
  165. MURPHY, James Vincent, III
  166. MURRAY, James C., Jr.
  167. NACH, Brian Michael
  168. NAVARRO, David Ricardo
  169. NAZARIAN, Nancy Ellen
  170. NESBIT, Nicole Chyrisse
  171. NIKOLIC, Daniel Peter, Jr.
  172. NORRlS, Scott
  173. NOWINSKI, Thomas E.
  174. OCHALLA, Kevin John
  175. O’CONNELL, Catherine Ann
  176. OGAREK, Margaret Mary
  177. O’LOUGHLIN, Kate Ryan
  178. O’MALLEY, Michael I.
  179. O’MEARA, John Andrew
  180. OSTOJIC, Radusa
  181. PANNITTO, Michael John
  182. PANTOGA, Ann Addis
  183. PARK, Jeanah
  184. PATTERSON, Monique Lenee
  185. PATTON, Nichole Catina
  186. PAYNE, Jennifer Joyce
  187. PAYNE, Litricia Pauline
  188. PERKINS, Marian Emily
  189. PERKINS, Robbin Eunise
  190. PETERS, Daniel Lawrence
  191. PEZANOSKI, Diane Marie
  192. PIEMONTE, Gina Angela
  193. PLESHA, Gregory Gerard
  194. PLOTNICK, Paul William
  195. PODLASEK, Robert Michael
  196. POLI, Carl (Carlo) Ettore
  197. POWER, Stephen Walter
  198. QUINN, Jill Rose
  199. QUISH, Clare Joyce
  200. RAKOWSKI, Leo Steven
  201. RASCIA, Ronald Anthony
  202. REGGI, Martin Douglas
  203. REILLY, James Michael
  204. RICE, Ashonta Cherron
  205. RICHARDSON, Travis
  206. RILEY, Shellé Eileen
  207. RIZZI, Steven J.
  208. ROPER, Lori Ann
  209. ROSADO, Joanne F.
  210. ROSEN, Lori Michele
  211. ROSENBERG, Geri Pinzur
  212. ROSS, Curtis Bennett
  213. SAINDON, Pamela
  214. SALAJANU, Ioana
  215. SALTOUROS, Stephanie D.
  216. SAMPEN, Don R.
  217. SANDERS, Catherine Dorothy
  218. SANTANA, Jaime Rafael
  219. SCANLON, Brian Patrick
  220. SCHOOP, Devlin Joseph
  221. SEATON, Debra Ann
  222. SEEDER, Myron Marshall
  223. SHAPIRO, James Anthony
  224. SHOFFNER, Robin Denise
  225. SIANIS, Athanasios (Tom) S.
  226. SIEGEL, Charles W.
  227. SILVA, Rosa Maria
  228. SIMMONS-FORD, Jade Ginese
  229. SIMPKINS, Anthony E.
  230. SMITH, Levander, Jr.
  231. SMITH, Trina
  232. SMUDA, Joan Ellen
  233. SNYDER, Martin Dockery
  234. SOLOMON, Donald Scott
  235. SPENCE, Keith Lenell
  236. STANIEC, Denise Y.
  237. STANTON, Patrick Thomas
  238. STEFFEN, Ketki Shroff
  239. STEPHENSON, Brian Joseph
  240. STROM, Michael Alan
  241. STROMSTA, Jon Karl
  242. STUDENROTH, David L.
  243. SUTTON, Arthur Dale
  244. SWANSON, Alfred M., Jr.
  245. SWANSON, Karin Elizabeth
  246. TAYLOR, Lisa M.
  247. TAYLOR, Mable
  248. THIBAULT, Renee Therese
  249. TIERNAN, Daniel Owen
  250. TOFT, Rachael Nicole
  251. TREVINO, Daniel Alexander
  252. TRISTAN, Gerardo, Jr.
  253. TROWBRIDGE, Bradley R.
  254. TYNER, Randall Louis
  255. TZINBERG, Scott William
  256. UNDERHILL, Edward J.
  257. VAHEY, Kathryn Maloney
  258. VELCICH, George Mario
  259. VROUSTOURIS, Alexander
  260. WALSH, Michael Daniel
  261. WATTS, Christopher Alexander
  262. WEAVER, Lynn Karyl
  263. WEBBER, Andrea Michelle
  264. WEBER, Adam Justin
  265. WESTON, Antoinette Denise
  266. WHITING, Oran Fresno
  267. WILK, John Francis
  268. WILLIS, Arthur Wesley
  269. WRENN, Jeanne Marie
  270. WRIGHT, James Adolph
  271. YU, William
  272. ZAMPARO, Roger, Jr.
Persons with relevant information regarding any associate judge applicant are invited to correspond with the Circuit Court of Cook County Nominating Committee, c/o Chief Judge Timothy C. Evans, 50 West Washington Street, Room 2600, Chicago, Illinois 60602.

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, 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 tkurth@chicagobar.org 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 jwilliams@isba.org 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 a 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.