Saturday, May 31, 2014

Notes on yesterday's note-taking order: Ban or boon?

My phone dinged late yesterday afternoon because of this tweet from Sun-Times education reporter Lauren FitzPatrick:

Whoa! Cook County Chief Judge Timothy C. Evans had banned electronic note taking in the courts? Luddites like me who still use diary books (the diary's batteries never fail, although it is just as prone to data entry errors as its electronic counterparts) would not be impacted by such an order, but I could see where such an order, if true, would provoke full-blown angst among my more gadget-inclined colleagues.

I was in the middle of working my law job at the time, but when I could return to the story I found an email from Judge Evans' press aide Rose Mary Marasso, providing both a press release about Judge Evans' order and the order itself.

The above link will take you to the text of yesterday's order, but, in my reading, there are three operative points:
  1. Note-taking is permitted in court proceedings conducted in Cook County courtrooms;
  2. Taking notes in court proceedings is subject to the court’s General Administrative Order No 2013-05 - Cell Phones and Other Electronic Devices; and
  3. Individual judges and deputy sheriffs have the right and duty to keep order in their own courtrooms.
Technically, if you look at GAO 2013-05, the cell phone ban applies only to the Leighton Criminal Courthouse (which you may still think of as 26th & Cal). The earlier, wider cell phone ban, which included all Cook County courthouses except the Daley Center, was superseded by this order. Some readers will protest that there are still cell phone bans at the suburban Municipal District courthouses, but these are at the discretion of the presiding judges in those courthouses (and, given the criminal trials that take place in those buildings, exist for the same good reasons as the ban at 26th Street).

And, in any event, the current ban does (and, for that matter, the ban imposed by its predecessors did) not apply to reporters.

On the other hand, at least as I'm reading the rules, in-trial tweeting by reporters was neither permitted nor prohibited by the Chief Judge except in cases where a trial was permitted to be broadcast under the procedures adopted by the Illinois Supreme Court -- in which case "members of the news media may also use their electronic devices in the courtroom to communicate with news media colleagues, provided court is not in session."

But -- bottom line, as I see it -- courtroom cell phone use by lawyers and reporters alike was pretty much subject to the discretion of the individual courtroom judge prior to yesterday afternoon and remains so following the adoption of this order. Most judges in my experience take a fairly indulgent view of technology; in many courtrooms the problem is not so much getting the judge's permission (or quiet acquiescence) as it is getting a viable cellular signal.

There may be a back-story behind yesterday's order: Some judge somewhere may have threatened to take a reporter's devices. There could be a couple of judges who suspect that they are the subject of a reporter's attention, not the case or cases on the day's docket. These few, if there really are any, may see yesterday's order as a limitation. No one else should.

Or have I missed something?

Cook County Bar Association Centennial Celebration on June 21

The Cook County Bar Association has asked me to help get the word out about its centennial celebration, Destiny in Time, set for Saturday, June 21 at the Hyatt Regency Chicago, 151 East Wacker Drive.

Cocktails begin at 6:30, the dinner begins at 7:30 and a 'nightcap party' starts at 10:30. As part of the program, Celestia L. Mays will be sworn in as the new President of the CCBA.

Tickets for the event are $200 apiece. For more information, or to order tickets, contact CCBA Executive Director Cordelia Brown at (312) 630-1157 or, by email, at

Tuesday, May 27, 2014

Norwood Park Memorial Day Parade remembers America's fallen servicemembers

It's not fancy. But it's respectful. And it provides an annual opportunity for all of us to remember that Memorial Day is more than just the unofficial start of summer. It's more than a day off. The annual Norwood Park Memorial Day Parade provides an opportunity for Americans to recall, remember, and reflect upon the ultimate sacrifice made by so many in the service of the nation.

Memorial Day was originally called Decoration Day. It was long a solemn duty for grieving mothers and widows to decorate the graves of their loved ones. The practice became institutionalized in the aftermath of the Civil War. Many communities, North and South, claim to have originated the observance. But the traditional May 30 date was selected in 1868, and promoted by the Union Army veterans organization, the Grand Army of the Republic. The original date of Memorial Day was chosen because (somehow) there had been no major battle on May 30.

Eventually Memorial Day became recognized as a day to honor all of America's war dead, in any war, declared or otherwise. It became a Monday holiday in 1968.

Of course, the kids watching yesterday may have been a little vague on the history. That's OK; they were there.

Iraq War veteran John Joyce served as Grand Marshall of yesterday's parade. (The link is to the DNAinfo Chicago article, by Heather Cherone, about Joyce's military and civilian careers.)

Of course, you can't have a parade without politicians, and there were both some local dignitaries...

... and some political candidates.

The appearance of the Bagpipes and Drums of the Emerald Society of the Chicago Police Department was pursuant to bipartisan agreement.

The Norwood Park Memorial Day Parade ends at Taft High School. Not surprisingly, Taft had a large contingent marching in the parade.

More parade photos can be found on page two.

Wednesday, May 21, 2014

Redistricting Amendment in jeopardy before State Board of Elections

The Illinois Independent Redistricting Amendment may never make it on this year's ballot. Both the Sun-Times Early & Often site and the Tribune's Clout Street report this morning that the Illinois State Board of Elections' initial review of the 507,467 signatures submitted in order to get the amendment before the voters has found 54% of the signatures to be invalid.

The linked articles indicate that the ISBE is required to conduct a review of 5% of the signatures submitted. In this review, only 46% of the signatures were deemed valid. If this rate is projected to the petition as a whole, it will fall well short of the 298,400 valid signatures necessary to qualify for the ballot.

Rick Pearson's Clout Street post notes that, "This year marked the first time that the State Board of Elections had conducted the signature validation requirement in-house per a change in the law. In prior years, local county clerks were charged with overseeing the signature checks." According to Dave McKinney's Early & Often post, the group sponsoring the amendment "now has seven business days to go through the 13,807 signatures that the state board deemed invalid and attempt to prove they are, in fact, the names of registered voters who live at the address they indicated on the group’s petitions." In both posts, Michael Kolenc, the campaign manager for the amendment, is quoted as being confident that the amendment will qualify for the ballot.

If the amendment does qualify for the November ballot, a suit is already pending to knock it right back off. The case is Clark v. Board of Election Commissioners, et al., 14 CH 7356. Election attorney Michael J. Kasper represents the plaintiffs in this matter, a who's-who roster that includes retired Commonwealth Edison CEO Frank Clark; housing developer Elzie Higginbottom, Jr.; community organizer Rev. Leon Finney; and Craig Chico, the President and CEO of the Back of the Yards Neighborhood Council (and brother of former Illinois State Board of Education Chairman, mayoral candidate, and prominent Rauner supporter, Gery Chico).

Updated to provide additional information.

In the law, civility flows from confidence, certitude

We hear a great deal these days about the need for "civility" amongst lawyers -- yes, even among criminal lawyers, for all you literalists out there -- the idea being that, in beating each other over the head, we should neither mean nor take it personally. We are zealous advocates, yes, but not mere mercenaries. We may heap scorn, where warranted, on an opponent's argument, but not on the opponent him- or herself.

How the heck do we do that?

John Flynn Rooney's recent Law Bulletin article on the occasion of the passing of Lloyd Williams (subscription required) includes this tribute from Williams' long-time partner C. Barry Montgomery:
Williams “exemplified the lawyers that existed 20 to 40 years ago when we all knew each other, we dined together, we drank together and we respected each other,” Montgomery said. “We fought like hell in the courtroom, but we were the best of friends once we left the courthouse.”
Montgomery said that Williams was one of the last old-school defense lawyers. Rooney writes that "Williams enjoyed his camaraderie with other lawyers including plaintiff attorneys Philip H. Corboy and Leonard M. Ring. After trials, he had a martini and took his trial team out for dinner."

Social scientists tell us that, as we get older, it is natural to see our vigorous youth as the dying days of a Golden Age, and the present day as a Bronze Era, at best, or maybe even an age of tin. Some may be tempted to dismiss Mr. Montgomery's tribute as just another dubious recollection of a probably fictional time When Giants Walked the Earth. But what if we accept the recollections as largely true? We can then try and figure out how our predecessors could get along so well together, and why we so often have more difficulty.

We all knew each other, Montgomery said. That may not have been literally true, but there's no question that the legal community was smaller a generation ago. We have over 93,000 attorneys in Illinois these days.

But familiarity alone can't account for the idyllic recollections in the recent Williams tribute. After all, haven't we been taught that 'familiarity breeds contempt'?

I submit that the real reason that trial lawyers may have gotten along better in Days of Yore comes from the fact that, in those days, trial lawyers really tried cases. A lot of cases. They were comfortable in the courtroom. They knew what they were doing; they understood what their opponents were doing.

I don't think we have as many trials these days -- we've all read periodic complaints about how the civil jury trial is rapidly becoming an endangered species -- and, even if we do, the trials we have are divided up among many more attorneys.

Additionally, the law has become exponentially more complicated over the course of the last 30 or 40 years. I remember my father would get the new edition of the old Illinois Revised Statutes every couple of years. I remember how the volumes got progressively thicker with each new edition, even as the number of volumes increased. That process did not slow down any when I became an attorney. And case law has expanded with the statutes.

Moreover, today, federal laws and regulations reach into our state courts in ways that our martini-sharing elders could not have imagined back when they were in their prime. Take HIPAA, for example.

It's harder and harder, therefore, for an attorney to truly develop the kind of serene confidence that some of our predecessors seem to have enjoyed. In our fear that we may have missed something we may try to reflexively block anything our opponent attempts because we don't know whether he or she has found an 'edge' or some 'leverage' that will make us look stupid (or, in my case, more stupid).

How can we avoid this temptation to incivility? We must strive to master some area, some aspect of the law where we can speak with the same confidence as our elders. Because the law is so much more complex in the modern age, we may not be able to master the same broad swaths of legal knowledge that our predecessors commanded. We may not rule mountaintops, only hillocks, or maybe only anthills, but we can become thoroughly knowledgeable in something. When we handle cases in that chosen area, we can be as civil as our elders ever were, secure in the knowledge that we know the range of possible outcomes. (And, if we have to step outside that comfort zone, as we inevitably will from time to time, we have to be secure enough to seek guidance and counsel from persons expert in that area, no matter how much gray hair we have.)

Judges have a role to play in this as well. I believe it must be easier for state court judges than those in the federal court. Although the District Courts may have limited jurisdiction, the judges of the Northern District of Illinois are required to become conversant in the huge variety of cases, civil and criminal alike, that may appear on the docket on any given day. Our Circuit Court judges' task is easier because our state courts are more specialized.

Thus, the diligent jurist has a greater opportunity in the Circuit Court system to truly master the law in the types of cases that appear on his or her daily docket, to learn the precedents and to rule in accordance with these. Even if he or she had not practiced extensively in an area to which he or she is assigned, he or she can read up on the area, consult with the other judges in the division (and master the bench book, if there is one) and thereby develop the necessary expertise. When the lawyer-experts collide before the diligent jurist, all can be reasonably confident that, if the facts come in this way, a particular result is certain. There would be a large measure of predictability, even of certainty. If lawyers with these credentials can not be civil to one another in such a forum, at least one of them deserves to be taken to the woodshed.

Friday, May 16, 2014

Decision of the Illinois Courts Commission in the Brim matter

Here, if this plug-in works, is the text of the Illinois Courts Commission Order In re Circuit Judge Cynthia Y. Brim, 13-CC-1.
Illinois Courts Commission decision in Brim matter.pdf
The unfortunate facts of the case are well known and covered in some detail in the decision of the Courts Commission. This is perhaps the key language:
[Judge Brim] testified that stress and being overworked trigger her mental breakdowns. The judicial office, due to the nature of the issues addressed and the extent of the caseload, is stressful. * * * The public expects and deserves predictability in the judicial process, and the unpredictable and unrecognizable nature of respondent's mental illness places the public at risk. While the testimony at the hearing before the Commission indicated that respondent's episodes would be minimal as long as she was on medication, there was still a five to ten percent chance of another episode. The specific incidents of misconduct in this case, and respondent's history of mental illness, demonstrate that respondent is unable to uphold the integrity of and promote public confidence in the judiciary.

We are sympathetic to respondent's mental health issues. Nonetheless, the judicial profession requires a high level of mental ability and proper mental function. "A judge has a position of power and prestige in a democratic society espousing justice for all persons under law. The role of the judge in the administration of justice requires adherence to the highest standard of personal and official conduct. Of those to whom much is committed, much is demanded. A judge, therefore, has the responsibility of conforming to a higher standard of conduct than is expected of lawyers or other persons in society. *** Our legal system can function only so long as the public, having confidence in the integrity of its judges, accepts and abides by judicial decisions." In re Winton, 350 N.W. 2d 337,340 (Minn. 1984).

Our main concern in determining the appropriate sanction is to protect the public by ensuring the integrity of the judicial system. Our goal is to maintain public confidence in our court system and its judicial officers. The Commission finds that the respondent suffers from a mental disability that persistently interfered with the performance of her judicial duties.
The Courts Commission removed Judge Brim from office.

Friday, May 09, 2014

Kristal Rivers appointed to the Cook County Circuit Court; to replace Peter Vilkelis in Connors vacancy

The Illinois Supreme Court today terminated Peter J. Vilkelis's appointment to the Connors vacancy on the Cook County Circuit Court. His tenure in that vacancy ends on Monday, May 12.

Judge Vilkelis sought election to the Connors vacancy in the March primary, but he was defeated by Assistant Attorney General Kristal Rivers. Rivers (like all but one Cook County judicial nominee) is unopposed in November and would have taken office on December 1. Today, however, the Supreme Court appointed Rivers to the Connors vacancy, effective June 2.

But please note that the Illinois Supreme Court has not turned Judge Vilkelis out into the cold: He was elected Associate Judge by his fellow Cook County jurists (and on a write-in basis, no less). He will be sworn into that office, along with the other 12 new Associate Judges, on May 12.

Thursday, May 08, 2014

Steven G. Watkins today appointed to the vacancy to which he will soon be elected

Steven G. Watkins won the Democratic nomination for the O'Neal vacancy in the 2nd Subcircuit this past March. As with almost all this year's Cook County judicial primary winners (there is only one exception), Watkins will face no opponent in November.

In the ordinary course, Watkins would have taken office on the first Monday in December. However, the Illinois Supreme Court today appointed Watkins to the O'Neal vacancy, effective June 16.

Wednesday, May 07, 2014

FWIW among award winners at yesterday's CBA Kogan Awards Luncheon

The Chicago Bar Association's 25th Annual Kogan Awards Luncheon was held yesterday at the Standard Club. The Kogan Awards are given to Chicago-area journalists covering the legal system, the courts, the government, judges, law firms or the justice system.

Cynthia Dizikes and Todd Lighty of the Tribune won the Kogan Award in the Print/Legal Beat Reporting category for "The Failure of Cook County's Court System." The CBA Kogan Awards Committee also presented a Meritorious Achievement award to Marc Karlinsky of the Law Bulletin for "Daley Center/Statehouse Coverage."

Roy Strom won a Kogan Award in the Print/Features or Series category for his article in Chicago Lawyer Magazine, "Too Big to Stop," about a woman who saw the mortgage fraud crisis coming a decade before the bubble burst but who was apparently treated like Cassandras everywhere, vindicated only by events. Chris Fusco and Tim Novak of the Sun-Times received Meritorious Achievement awards for "Tarnished Badges."

In the Broadcast category, Cate Cahan, Ken Davis & Linda Paul won Kogan Awards for their WBEZ/Chicago Public Radio series, "Arrests at School," detailing how disciplinary matters that used to be handled by a trip to the principal's office are now often referred to the police. Even if no charges are ever brought, an arrest for a quickly forgotten incident at school can have life-altering effect years later. A Meritorious Achievement award was also presented to Anna Davlantes and Tasha E. Ransom of WFLD-TV for their series on a shaken baby syndrome case, "Ex-Sitter Fights to Get Conviction in Infant Death Overturned."

The winners of the Kogan Awards in the Online category were Robert Herguth, Patrick McCraney, Dane Placko and Patrick Rehkamp for the BGA series "Disorder in the Bureaucracy of the Courts." (Other entries in the BGA series are here and here.) The CBA presented yours truly with a Meritorious Achievement award for my series on last summer's judicial slating.

NBC5 Political Editor and Sun-Times columnist Carol Marin was the keynote speaker at the ceremony.

The Herman Kogan Media Awards are named for the late Chicago newsman Herman Kogan. A reporter, feature writer, columnist and editor at various times with the Chicago Tribune, Sun-Times, and the old Daily News, Kogan also won three Emmys during a mid-1960's stint as assistant general manager of news at WFLD. Along the way, Kogan also hosted two programs on WFMT radio, "Critics Choice" and "Writing and Writers."

Kogan was the author of several books on Chicago themes including Big Bill of Chicago, a biography of William Hale Thompson (with Lloyd Wendt); Lords of the Levee: the Story of Bathhouse John and Hinky Dink (also with Wendt -- also released under the title Bosses in Lusty Chicago: the Story of Bathhouse John and Hinky Dink) and The Great Fire, Chicago, 1871 (with Robert Cromie).

The First Century, the story of the Chicago Bar Association's first 100 years, was a solo effort.

Herman Kogan's son, broadcaster Rick Kogan, helped present yesterday's awards.

Updated 5/10/14 to add in additional links to the BGA series.

Tuesday, May 06, 2014

John Michael Allegretti gets an early start on his judicial career

John Michael Allegretti won his Democratic primary race for the Mulhern vacancy in the 4th Subcircuit in March. Like nearly all of the primary winners (all but one, in fact) Allegretti faces no opponent in November.

But Allegretti will not have to wait until the first Monday in December to assume his new duties. Yesterday, the Illinois Supreme Court appointed Allegretti to the Mulhern vacancy. The appointment is effective tomorrow; it expires on December 1, the day on which Allegretti would otherwise have been sworn in.

Saturday, May 03, 2014

If you've had trouble recently with email to Yahoo! or AOL addresses, perhaps I can explain

Just over a week ago, on April 23, I found these two emails in my Yahoo! inbox (I've deleted links and images for obvious reasons, but here are the texts):
Dear Customer,

Access to e-mail is about to expire,
We recommend that you upgrade your account to avoid suspension.
Please open the attachment to update your account.

Thank You.
Yahoo Inc
While you may think the wording of this email a trifle awkward, it was a masterpiece compared with this gem:
Dear Valued user,

Your email account will be blocked in response to a complaint received by the administration.
According to provision 13.3 of Terms and Conditions, Yahoo may at any time, terminate its
Services for your account and all your data will be lost.
You have to upgrade now to the newest Yahoo! Mail to avoid this termination process.
Once your account is upgraded, we will restore your account to its normal state.Click here
[address deleted]

Kindly note that you have to perform this upgrade as soon as possible to avoid loosing your account data.

Thank You for Being A Loyal Yahoo! Mail User

We hope you enjoy the newest version of Yahoo! Mail.

Yahoo Mail Team
Copyright © 2014 Mail! Inc
Yahoo! Mail
I mean, seriously, who wants loose account data? Keep your data tight; that's what I say!

I dutifully marked these beauties as spam and consigned them to oblivion.

Other things weighed more heavily on my mind that Wednesday. I was in Indianapolis, with my wife and my daughter Brigid, because my other daughter Katie had just given birth to our second grandchild.

(Thank you.)

My wife and Brigid were the front-line troops, assisting Katie. I was either providing logistical support or a camp follower, depending on whether I had an assignment at any given time. Either way, back in the rear echelons, I had some time to remain at least in tenuous communication with pending matters via email on my smart phone.

My efforts met with decidedly mixed results.

Several emails bounced back, marked "undeliverable." I was not then inclined to investigate the causes; I was willing to accept any number of excuses.

I was willing, for example, to put it down to some fault of my own in emailing from a smart phone. (I'm still a smart phone newbie. I was reluctant, for many years, to acquire an inanimate object that was demonstrably smarter than me. I may or may not have gotten angry when I was told that, if this was indeed my objection, I should also give up my tables and chairs.)

I speculated that the wireless connection might be shaky in the hospital. (I seem to recall a time when using mobile phones in hospitals was strictly verboten, supposedly because it might possibly make Mr. Jones' pacemaker in Room 319 do the St. Vitus' dance. It was only after every doctor, then every nurse, then every technician, food server, and maintenance person, began using their phones in an open and notorious manner in every corner of every hospital -- flouting their telephony in front of patients and visitors alike -- all without any apparent harm to Mr. Jones -- that the signs forbidding cellphone use were finally, and perhaps somewhat sheepishly, retired.)

I was even willing to accept that my problem was that I was in a foreign city, and that things would improve when I returned to Sweet Home Chicago.

And it seemed, at first, that this was the case. Another matter had jumped to the top of the priority list in my absence and all my email traffic on that matter successfully traversed the highways and byways of the Intertubes.

But when that crisis subsided, at least for the time being, I had an urgent need to return to the other matter -- and all my email problems returned. Even though I was safely back in Chicago. In my office or at home, not in a hospital. Using a desktop, not a smartphone.

It was time to stop making excuses and start investigating the problem.

Humans are supposed to be adept at pattern recognition.  I'm supposed to be human.  So I did my best: I eventually realized that I was having problems sending to Yahoo! Mail addresses. A lot of solo practitioners use Yahoo! Mail: It's free, it's easy to use, it's been around for awhile. I use a Yahoo! address for email to this blog. Oddly enough, I was getting email at that address even while I found it impossible to send emails to Yahoo! addresses.

In one case, the person I was trying to email had a personal AOL address; I tried sending to that address as well, but it also bounced back.

I know about AOL addresses. Yes, I'm old. I'm so old I remember when America On Line was state-of-the-art. I've used an AOL address for business emails for decades. It's been sort of a constant for me: I've had several offices since 1998, and every time I've moved I've had to change phone numbers (one time I moved literally across the street and around the corner and the phone company still decreed that this was somehow 'too far' to take my phone number). Every time I've changed phone numbers -- even with paying the extra fee for call forwarding the from the old number -- I feel as though I've lost business. But the AOL address has remained the same.

But I have changed, somewhat, with the times. Back in 2007, when my oldest son John was about to graduate from the University of Notre Dame with a degree in computer engineering, he decided to set me up in Gmail. Email would still go to my AOL address but be 'swept' into the shiny, new Gmail account. When I sent mail it would appear to come from my trusty AOL account.

This system has worked well for me for seven years. Until last week.

In calling colleagues to set up work-arounds with attorneys having Yahoo! addresses, I discovered that many of my fellow lawyers were having troubles, too -- not necessarily in sending emails out, but in opening attachments that they did receive.

Frustrated, I reached out again to my son John, now a technical architect (whatever that is) with Accenture. It took him less than five minutes to find and send me an April 25 article posted on ZDNet, "AOL, Yahoo email problems show limits of email security." I read the author's explanation of "DMARC" several times with little or no comprehension. The part that I think I understand is reproduced below:
Perhaps out of frustration with all the phishing and other abuse using their domains, both AOL and Yahoo have recently published DMARC policies to reject email purportedly from: their domains which fails DMARC tests. The problem with this is that lots of legitimate email fails DMARC tests, the most prominent example being mailing lists. Lists commonly modify various headers in when sending content out, so when a message from: an AOL or Yahoo user goes to a mailing list, and the mail server for recipients of the message checks DMARC, it will reject the message and send a bounce.

* * * The policy blocks a lot of spam, but a lot of legit mail in the process. AOL and Yahoo so far are suggesting that everyone change the way they have always done things in order to work within the new restrictions.
John tried to explain to me that -- after seven years -- Yahoo! and AOL had suddenly decided that email sent from my AOL address, via my Gmail account, to any Yahoo! or AOL address, would now be marked for rejection as likely spam. Sure enough, a couple of days later, I received a lengthy email from AOL which read, in pertinent part,
Recently, our systems alerted us to an increased incidence of email users receiving spam emails from "spoofed" AOL email addresses. AOL's security team immediately began investigating the cause of the spoofed emails. Spoofing is a tactic used by spammers to make it appear that the message is from you in order to trick the recipient into opening it. These emails do not originate from the AOL Mail system – the addresses are just edited to make them appear that way.
So because my business emails don't "originate from the AOL Mail system," but only "appear that way," I am now a "spoofer."

So here is how matters now stand: AOL and Yahoo! have invented an email system that eliminates all the business email and lets through only the spam.

Too harsh?

Here's an email I found in my Yahoo! inbox just this morning (not in the spam filter, in the inbox):
Yahoo Mail©
To Me

Account Information


Your Account is about to expire

Click here to renew

Thank you for helping us protect you.

Yahoo! Membership Service