Friday, February 26, 2021

Or you could just run? That is terrible advice....

Regular visitors to this site have seen that an anonymous person keeps leaving comments here, urging people with judicial ambitions to simply run for election, bypassing the associate judge process, and possible slating, and bar association screening.

Maybe it's more than one person; there have been so many of these comments. And, for every one you've seen, I've flushed at least another. They are redundant, repetitive, and, in my view, aggravating.

First and foremost, I think "just run" is terrible, horrible advice.

I can't believe it is offered sincerely. I hypothesized, in this post, that the person offering this terrible advice must be trying to create a need for his or her services as a campaign consultant, and I further suggested that, instead of playing this game, he or she just buy an ad.

No one's buying an ad, but the comments continue, now with a petulant tone. For example:

  • Or you can just run. Before you delete this comment, Jack, know that you misconstrued it. I am not [peddling] services or goods. Frankly there are no goods or services that can help most candidates. This game, and make no mistake about it being a game, is nonsense. Voters have no idea who any of us are. Politicians don't have the heft or desire to “push” us and use us as ATM machines. Our best chance is to simply run; the more the better. Bar association ratings are rigged, as is Tim Evans’ short list. So save your money, give nothing to consultants or politicians and just RUN!
  • Skip the bar associations. Skip the advisors. Skip the hawked goods and/or services. Skip the committee creatures. Madigan is done. Burke is done. Grow some spines and do your thing.
  • Or you could just grow some spine and run — paying nobody for a good or service.

The reason I think this is dumb, horrible advice is because I've tried 'just running.' Twice, in fact.

The first time I ran, in the 10th Subcircuit, in 1994, I didn't even know I was 'just running.' I knew about slating, of course, but Richard J. Daley had gone to his eternal reward at the end of 1976. Jane Byrne's election, or surely Harold Washington's two wins, signaled that the Machine was dead and gone, right? I could not have picked my committeeman (at the time, State Rep. Ralph Capparelli) out of a lineup; I hadn't the first clue how subcircuit slating was handled.

And I'd never even heard of campaign advisors in judicial races. Consultants. Pollsters! Such persons esisted only in far higher profile races, right? (In fairness to me, I don't believe there were nearly as many persons dabbling in judicial races in the early 1990s as exist now.)

I ran the classic kitchen table campaign -- as in Mickey Rooney and Judy Garland and "c'mon kids, let's put on a campaign!" (Not even all the Baby Boomers will catch that reference. But it captures our naivete and boundless, though baseless, optimism.) My then-partners wrote checks and held a couple of fundraisers, my wife chased down parents on the parish school playground for petition signatures, I had friends and family leave doorknob hangers with flyers and refrigerator magnets (never in the mailbox -- it wouldn't do for a judicial candidate to violate postal regulations, would it?), and I went house to house, and stood at bus stops and Blue Line stations, and went anywhere were I could get in the door. I got lots of folks to send out friend-to-friend postcards. I had snazzy campaign buttons.

Not many people wore the buttons. Or paid attention to the postcards. And I didn't get into nearly enough places. I obviously didn't knock on nearly enough doors. I finished dead last. (I wrote more about my 1994 run in this 2017 Page Two post.)

What did 'just running' get me in 1994? On the plus side, I lost 15 lbs. campaigning.

On the negative side? Well, let's tally it up, shall we?:

  • I drained the family savings accounts, buying campaign tchotchkes and billboard spaces and newspaper ads, loaning the campaign money I would never get back;
  • I burnt out my wife;
  • I burnt out my family;
  • I burnt out my friends and neighbors; and
  • I burnt out my partners.

But I still had the bug real bad. As 1996 approached, as Adlai Stevenson III once said, I felt the sap rising.

The thing I thought I'd learned in the course of my 1994 run is that a subcircuit, though only 1/15th of Cook County, is a really big place. I didn't have enough friends and relations to make a sufficient dent. Besides, no one I knew -- except me -- was particularly interested in me running again. So, in a Wile E. Coyote genius move, I decided to bypass the two 10th Subcircuit races in 1996 and throw my name in countywide. I really, truly, "just ran." I was simply hoping for lightning to strike. Just as Anonymous now advises.

I had my pride, I thought. I took pains to dot all the i's and cross all the t's necessary to get on the ballot. My petitions were not challenged in 1994 or 1996. I appeared before the county slating committee, too. It was a Hooda Flock moment.

You know... as in the committeemen muttering hooda flock is that guy? But I kept blundering on -- just running -- just as Anon is urging my readers to do now -- going nowhere, but going there every night. I wasn't raising money, but I was still spending some... and I still had those snazzy buttons, didn't I? Not that anyone wanted them....

Meanwhile, my wife was house hunting. Our fifth child learned to walk during the 1994 primary season and our starter home was, in my wife's opinion, finished. We needed more space.

One night I came home and my wife told me she'd found our new home. I didn't want to move. I wanted to get elected judge. That was the priority. That was the quest.

"Look at it this way," my wife told me, finally, "now you will have two houses where you can put your lawn signs."

The sad, inescapable truth is that there weren't too many other lawns where I could put my signs. We bought the house. We live there still. And I finished last again in 1996.

There's a darkly humorous denouement to these campaign misadventures, one that bitter, cynical observers of Cook County politics can surely appreciate. I'll share that in my next post on this subject, coming soon.

Friday, February 19, 2021

Alliance also looking for comments on Associate Judge hopefuls

As you know by now, there are 246 lawyers actively seeking to be named as Cook County associate judges.

The names of each hopeful were included in this post. The Chief Judge has asked members of the public to provide written comment about any of these candidates. (And we covered this in the comments to the last post, but let me reiterate: Anonymous comments here are not an acceptable substitute.)

After that post appeared, Joyce Williams, the Administrator for the Alliance of Bar Associations for Judicial Screening, contacted FWIW to advise that the Alliance would also welcome comments from the public about associate judge candidates.

Ms. Williams does not need any defamatory voice mails with clumsily disguised voices. But persons having relevant information about associate judge candidates can write to the Alliance, c/o Ms. Joyce Williams, Illinois State Bar Association, 20 South Clark Street - Suite 900, Chicago, IL 60603-1802. Perhaps those planning to send a letter to Judge Evans could send a copy to the Alliance as well.

And before someone offers a snarky comment about associate judge hopefuls now getting their moms to write two letters, let me tell you: There are attorneys out there who scan the list of hopefuls and, without being asked, send very nice letters about one or more individuals. I actually found out about one such letter during an interview with the Circuit Court Nominating Committee. As you can see, it didn't put me over the top.... but I was deeply touched and profoundly grateful that someone made that effort on my behalf.

Letters sent to the Alliance will be forwarded to the investigators conducting evaluations of associate judge candidates.

Wednesday, February 17, 2021

246 apply for associate judge

The list I saw last week was pretty accurate -- I'm told on good authority that the list was circulating among a number of judges -- but it contained 245 names.

The actual number of applicants is, however, 246. The complete list of names follows at the end of this post.

Let's get the commercial out of the way immediately: Persons with relevant information regarding any associate judge candidate are invited to communicate by letter to the Circuit Court of Cook County Nominating Committee, c/o Chief Judge Timothy C. Evans, 50 West Washington Street, Room 2600, Richard J. Daley Center, Chicago, Illinois 60602.

FWIW readers will recognize the names of several recent primary candidates on this list, including all four of the candidates slated by the Democratic Party, including two appointed judges, who did not win their 2020 primary races.

There are, by my unofficial count, 18 present or former appointed judges seeking associate judge vacancies, including the two referred to in the paragraph above. The one presently serving Circuit Court judge is Cara Lefevour Smith. Among the 17 former judges seeking to return to the bench as associates is Jackie Marie Portman-Brown, who was defeated for retention this past November. Also, by my unofficial count, 12 of the 15 finalists from the 2019 associate judge selection process are included in this group.

Herewith, the complete list of applicants:

  1. AAKRE, Amrith Kaur
  2. ADAMS, David Charles
  3. AHMAD, Maryam
  4. AHUJA, Loveleen K.
  5. ALLEN, Charles Daniel
  6. ALLEN, Shay Tyrone
  7. AMBROSE, Garvin Gauss
  8. ANTOLEC, Sonia A.
  9. ARNOLD, Kina Nicole
  10. AUGUSTUS, Maria
  11. BADILLO, David
  12. BAE, Jennifer Eun
  13. BARRIDO, Jerome Celis
  14. BAUMANN, Deidre
  15. BHANDARI, Aileen
  16. BHAVE, Sunil Shashikant
  17. BISCEGLIA, Joell Claire
  18. BLANCHARD, Patrick Malone
  19. BLINICK, Robert Kendall
  20. BRACEY, Charles Scotto
  21. BRASSIL, John Hugh
  22. BROOKS, Lloyd James
  23. CALLAHAN, Jennifer Patricia
  24. CARROLL, John P.
  25. CASEY, Carol Anne
  26. CAZARES, Jorge V.
  27. CENAR, Richard George
  28. CHICO, Joseph
  29. CLEWIS, Scott Richard
  30. CLOSE, Deirdre
  31. COHEN, Christopher Bittel
  32. COLEMAN-ROMEO, Arlene Yvette
  33. CONDON, Jr., Thomas J.
  34. CONWAY, John Joseph
  35. CONWAY, Marcia O’Brien
  36. COOPER, Christopher Chriss
  37. CORBIN, Torrie Luciana
  38. COSGROVE, Audrey Victoria
  39. CYRUS, Rocell, Jennal
  40. DADAY, Stephen Gerard
  41. DANAHER, Richard G.
  42. DAUPHIN, Yolaine Marie
  43. DAWKINS, Barbara Lynette
  44. deCASTRO, Pablo F.
  45. DELACRUZ, Aracelli Reyes
  46. DEMATTEO, Gabriel Joseph
  47. DEMITRO, Steve
  48. DERICO, JR., James Thomas
  49. DESAI, Debjani Dasgupta
  50. DIFRANCO, Frank Rocco
  51. DOLAN, Alice Elizabeth
  52. DOSS, Rivanda
  53. DRAKE, Gwendolyn Elizabeth
  54. DUFFY, Cristin McDonald
  55. DUNLAP, Charnell Denise
  56. DUNNEBACK, James Francis
  57. DWYER, III, Patrick Edward
  58. DYER, Deidre Myra
  59. EBERSOLE, Sabra Lynne
  60. ELRABADI, Naderh Hana
  61. ERICKSON, Jon Forrest
  62. EVANS, Jr., Carl Lauras
  63. FAHY, William Nicholas
  64. FALEY, Michael Joseph
  65. FARMAKIS, Athena Aphrodite
  66. FEARON, John Robert
  67. FIAONI, Karla Marie
  68. FLORES, Barbara Nubia
  69. FORD, Ann Kettelson
  70. FORESTER, Laura Ellen
  71. FOTOPOULOS, John Spyros
  72. FOUKAS, Anastasios Thomas
  73. FRANSENE, Sarah Lynne
  75. FRITCHEY, John Alden
  76. GALHOTRA, Kulmeet Singh
  77. GEORGE STEWART, Ava Monique
  78. GERBER, Michael Perry
  79. GLAUB, Tien Hanh
  80. GLENNON, Caroline Gale
  81. GOLDBERG, Mitchell Benjamin
  82. GONZALEZ, Dawn Marie
  83. GORDAN, Elias Martin
  84. GORMAN, Colleen Candace
  85. GRIFFIN, Jacqueline Marie
  86. GUDINO, Ruth Isabel
  87. GUMP, Joseph Michael
  88. HARTIGAN, Russell William
  89. HENRY, Jeffrey Thomas
  90. HERNANDEZ, Jasmine Villaflor
  91. HERZBERG, Steven
  92. HOLLEB HOTALING, Keri Leilani
  93. HOURIHANE, John Nahum
  94. HOWSE, Natalie Lynn
  95. HUDSON, Brandon
  96. JANNUSCH, Matthew William
  97. JAWGIEL, Michael Bryan
  98. JEFFERSON, Sharon
  99. JHA, Lakshmi Elkhanialy
  100. JIMENEZ, Martha-Victoria
  101. JOHN, Patrick Dankwa
  102. JONES, Celeste Kathleen
  103. KANTAS, Nicholas Alexander
  104. KARKULA, Elizabeth Anne
  105. KATUBIG, Belle Lourdes
  106. KAWITT, Alan
  107. KELECIUS, Linas Jones
  108. KELLY, David Lewis
  109. KENT, Heather
  110. KNIBBS, James John
  111. KOUGIAS, Thomas Peter
  112. KOZICKI, Scott Michael
  113. KUMMER, Scott William
  114. KURTZ Michael O’Malley
  115. LAMANTIA, John Sam
  116. LARSON, James Andrew
  117. LATZ, Michael Paul
  118. LEAHY, Laura Marie
  119. LEVIN, Ellis Bernard
  120. LEVIN, Lawrence Wolf
  121. LILLY, Lisa M.
  122. LINDSAY, Camile Jessica
  123. LOFTUS, Thomas Jerome
  124. LOPEZ, Diana Elena
  125. LUCAFO, Anthony Dominick
  126. LYNCH, Stacey Elizabeth
  127. LYONS, Kristin Marie
  128. MAHER, John G.
  129. MALLOY, Catherine M.
  130. MALONEY, Edward James
  131. MALONEY LAYTIN, Kerrie Elizabeth
  132. MANGUM, Jameika Williams
  133. MARCIN, Mary B.
  134. MARKS, Alexander David
  135. MARSHALL, Jenetia Marshall
  136. MARTIN, Timothy Alan
  137. McGRORY, Michael Sweeney
  138. McLAUGHLIN, Ellen Wight
  139. McLAUGHLIN, William John
  140. McMAHON, William John
  141. MECZYK, Ralph Eugene
  142. MELCHOR, Mary Alice
  143. MILAN, Robert Joseph
  144. MOLTZ, Ira Alexander
  145. MORRIS, Tisa Lynne
  146. MORRISSEY, Thomas A.
  147. MOULTON, Daniel Martin
  148. MOWATT, Raoul Vertick
  149. MURPHY, III., James V.
  150. NEELY, Melanie Patrick
  151. NIKOLIC, Jr., Daniel Peter
  152. NORRIS, Scott
  153. NOVY, James Bryan
  154. NOWINSKI, Thomas Edwad
  155. O’BRIEN, Kimberly Atz
  156. OCHALLA, Kevin John
  157. O’DELL, Katherine Angela
  158. ODOM, Ginger Leigh
  159. OLSHANSKY, David Scott
  160. O’MALLEY, Michael I.
  161. O’MEARA, John Andrew
  162. OSTOJIC, Radusa
  163. OTIS, Donna Lynn
  164. PAPPAS, Nickolas George
  165. PARENTE, Christopher Vincent
  166. PATEL, Shilpa C.
  167. PATTERSON, Monique Lenee
  168. PAYNE, Litricia Pauline
  169. PIEMONTE, Gina Angela
  170. PILLSBURY, Amanda Moira
  171. PITTS, Dartesia Ayanna
  172. PLANEY, Mary Anna
  173. PLOTNICK, Paul William
  174. PORTER, Arlette G.
  175. PORTER, Brian Randall
  176. PORTER, Tracie Reneé
  177. PORTMAN-BROWN, Jackie Marie
  178. QUINONES, Carmen Migdalia
  179. RAINES-WELCH, ShawnTe Miaundra
  180. RAKOWSKI, Leo Steven
  181. RICE, Ashonta Cherron
  182. RICHARDS, David John
  183. RICHARDS, Joseph Samuel Milder
  184. RICHARDSON, Barbara Elaine
  185. RICHARDSON, Travis
  186. RIEBMAN, Elliott Michael
  187. RILEY, Shellé Eileen
  188. RIVERA, Antara Nath
  189. ROACH, Steven Robert
  190. ROBINSON, Chelsey Renece
  191. RODGERS, Anne McCord
  192. ROE-TAYLOR, Parle M.
  193. ROLECK, David Michael
  194. ROPER, Lori Ann
  195. ROSS, Curtis Bennett
  196. RUFFIN, Anthony
  197. RUSCH, Michael Paul
  198. RYAN, Elizbeth Condron
  199. RYAN, Richard Joseph
  200. SAINDON, Pamela
  201. SAMPEN, Don R.
  202. SANTANA, Jaime Rafael
  203. SAUCEDA, Eric Michael
  204. SCANLON, Brian Patrick
  205. SCHNEIDER, Margaret Elizabeth
  206. SHELBY, Owens Joseph
  207. SIMMONS-FORD, Jade Ginese
  208. SIMMONS-STOVALL, Felicia H.
  209. SMITH, Cara LeFevour
  210. SMITH, Judie Lyn
  211. SMITH, Trina
  212. SMITH CONYERS, Theresa Marie
  213. SMUDA, Joan Ellen
  214. SOLOMON, Donald Scott
  215. SOMERVILLE, Monica Gail
  216. SPENCE, Keith Lenell
  217. SRIVASTAVA, Ankur
  218. STEIN, Alon
  219. STEWART, Rodney Walter
  220. STRATIGAKIS, Pamela J.
  221. STROM, Michael Alan
  222. STROMSTA, Jon Karl
  223. SUMNER, Nyshana Kali
  224. SUTTON, Arthur D.
  225. SWANAGAN, Anthony Charles
  226. SWEDLOW, Stephen Andrew
  227. TAYLOR, Lisa M.
  228. TOFT, Rachael Nicole
  229. TOUSSAINT, Marie Lynn
  230. TRAVERS, Timothy Kevin
  231. TROWBRIDGE, Bradley R.
  232. TURANO, Andreana Ann
  233. TYNER, Randall Louis
  234. TZINBERG, Scott William
  235. UNDERHILL, Edward Joseph
  236. WALKER, Gregory Eric
  237. WALSH, Diane N.
  238. WEAVER, Michael Wesley
  239. WESTON, Antoinette Denise
  240. WHITING, Oran Fresno
  241. WILLIS, Julie Elizabeth
  242. WILSON, John Wellington
  243. WOLF, Steven Carl
  244. WOLFMAN, Amanda Marie Hinkley
  245. WRIGHT, III., Timothy W.
  246. ZAYYAD, Naheda

Part 4: Similarities and differences between a DIY project and the interpretation of an insurance policy

Concluding today, for what it's worth, a reflection on constructing a cabinet and how courts should engage in the proper construction of an insurance policy. For Part 1 of this series, click here. For Part 2, click here.

I won some of the coverage cases I brought for that client I introduced in Part 3 of this series. If I had the heart (or stomach lining) to go back and look, I’m sure I would find that I won more than I lost.

But---and I think this is true of most lawyers, and certainly true of most lawyers that I have known personally---it is the losses that we remember most vividly. Even when we try to forget.

The case that I believe finally cost me this coverage client involved two judges. Both of whom were very good judges. Judges that I liked and respected. Still do, actually.

I laid out a very careful case, in a cross motion for summary judgment, as to why my carrier had no duty to defend a particular suit. There were other paths to the same conclusion, but this one, I thought, was the strongest: There could be no duty to defend because the claim for which a defense was sought was not presented during the term of the claims-made policy. With a 15 page limit and a convoluted cast of characters I had to make some difficult editorial choices.

The first learned judge did not agree with my argument. In denying my motion, the judge found that a lawyer’s letter, written to the insured during the policy term, constituted notice of the claim to the insured. The problem with that approach, which the court did not consider, was that the policy also required that, if an insured received notice of a claim during the policy term, it had to promptly notify the carrier. This it did not do. (It did give notice of this letter to the carrier because the insured didn’t think that the letter really constituted notice of a claim either; this was a quality the letter did not acquire until it was examined under the distorting glare of hindsight.)

Anyway, head bloodied but unbowed, I filed a new motion, carefully delineating how the court’s objections to my initial argument necessitated a favorable ruling on this alternate argument. I don’t think I could have lost that motion if the first judge had continued with my case.

Unfortunately for me, soon after I filed the second motion, because of a change in Chancery Division procedures, my coverage case was removed from this first judge’s calendar.

The second judge was reluctant, for one thing, to interfere in his predecessor’s decision. That is, generally, a good thing. But he was obligated to take up my motion.

When the motion was argued, my opponent—also a good person and a good lawyer—complained bitterly about my position that the policy showed two paths to a favorable disposition: “Counsel is really saying here that, heads, he wins and, tails, I lose.”

Of course I wanted to shout, “Bingo! That’s it exactly!” I am pretty sure that I was slightly more moderate in my actual response.

But the truth is, insurance policies are written in belt-and-suspenders language by persons who are trying to leave nothing to chance. So there may be far more than two routes to a given result, depending on how well the underwriters have anticipated a particular problem. That’s not a defect in coverage.

But the second judge found that there could or might be questions of fact about whether the failure to give notice was reasonable -- at least in part because the insured would not have seen the letter in question as constituting notice of a potential claim -- leaving my insurer stuck defending an underlying case, at great expense, most of which was admittedly not covered (but, you know, if one count is covered there is a duty to defend all) and thoroughly dissatisfied with my ability to predict results.

And the punchline? Or the punch-in-the-gut-line in this case: There was no way in Hell to recover damages for the one event which might, arguably, possibly, maybe have taken place during the policy term. At most, if they succeeded in their claims, the plaintiffs would have wound up relieved of an obligation to pay for something that they were supposed to have paid for, but in fact did not. Something that actually enhanced their property values, albeit against their wishes. And, like any normal liability policy, the policy only required the insurer to pay, ultimately, for damages caused by a covered event.

And the second judge was careful to make the disposition not final, so we couldn’t take the decisions up on appeal even if the carrier was willing to take that route.

I believe in my heart of hearts that both of these judges bent over backwards to be as “fair” as possible to all concerned even though the law and the policies commanded a different result. They both recognized that the warring parties in this case were two groups of neighbors who hated each other; pulling the plug on coverage would, potentially, give advantage to one side over the other... but for the fact that the plaintiffs had no actual damages and really owed the neighbors they were suing a great deal of money. The insurance company’s money, funding the defense, merely provided the fuel to keep the flames of the dispute going. And I’m quite sure the judges in question never intended me any harm. If they thought of my position at all they figured I was getting paid and therefore benefitting from the suit’s continuation. But it cost me the client.

Well, boo hoo, you say: Next time, find more understanding clients. The lesson you may think that can be drawn from these anecdotes is that the Circuit Court of Cook County finds ways to give insureds a break. The big, bad insurance companies can surely afford it.

Unfortunately, when they strive for ‘fairness’ instead of going where the law and policy language requires, our courts wind up being consistently inconsistent. And that may redound as much to the detriment of insureds as insurers.

Fast forward several years. I was representing an insured in a coverage case. From a distance I can see where our position might be viewed as quixotic.

Suffice to say that my client ran a gymnasium and he and a group of instructors in his employ gave lessons to kids. One of the insured’s instructors allegedly had inappropriate contact with one of those kids. More than one. And right out in the open, at the gymnasium, too. The instructor in question was arrested and the arrest was reported in the local paper.

The insurer wrote my client and announced that, on the basis of this initial news account, before any complaint was filed, it would refuse to defend my client. Never mind that, under Illinois law, “Refusal to defend is unjustifiable unless it is clear from the face of the underlying complaint that the facts alleged do not fall potentially within the policy’s coverage.” RLI Ins. Co. v. Illinois National Ins. Co., 335 Ill.App.3d 633, 644 (2004). The carrier’s potential duty to defend can only be ascertained when an insured is sued and the complaint tendered for a defense. This is well established: “To determine whether the insurer has a duty to defend the insured, the court must look to the allegations in the underlying complaint and compare these allegations to the relevant provisions of the insurance policy,” Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill.2d 90, 107-08 (1992).

And the consequences of an unjustifiable refusal to defend are quite severe: “Once the insurer breaches its duty to defend... the estoppel doctrine has broad application and operates to bar the insurer from raising policy defenses to coverage, even those defenses that may have been successful had the insurer not breached its duty to defend.” Employers Ins. v. Ehlco Liquidating Trust, 186 Ill.2d 127, 151-152 (1999).

On the other hand, there is language in Ehlco and elsewhere to the effect that there can be no estoppel if there was no duty to defend in the first place.

And here is where the Circuit Court---another judge for whom I have the greatest respect---went astray.

The policy in question had not one, but two exclusions for sexual misconduct. If it was merely a question of the insurer’s intentions, it was obvious that the carrier had no intention of providing coverage in any case alleging abuse or molestation of any kind. And, of course, I just reminded you that insurers, being belt-and-suspenders types, will not hesitate to erect multiple barriers to coverage they do not wish to provide.

But the Devil is in the details -- in the instructions for the cabinet, for example, or the language of the policy. Or, in this case, in the language of the exclusions. The exclusions were not identical. And the differences between them gave rise, at least in my analysis, to an ambiguity that would, of course, have to be construed in favor of my client, the insured. Because, ordinarily, the intentions of the parties to an insurance contract can only be ascertained from the policy language itself.

However, in this case, the trial court could not get past the fact that the insurer did not intend to cover suits that in any way raised an issue of molestation (and, believe me, the underlying plaintiffs strove mightily to plead into coverage or, in this case, around those exclusions). The trial court could not see any ‘fairness’ in giving the insured coverage---potential coverage, really, just a defense against the various suits---when he could have, and should have, seen the exclusions in the policy. That’s the problem with deciding coverage disputes according to one’s own notions of ‘fairness’ and not strictly according to the law and policy language: It is impossible to predict how a court will rule on the law and the policy without knowing, in advance, who the judge will be and what are his or her notions of ‘fairness.’

These decisions have real-world consequences, as in this case for the victims of the instructor’s misconduct who lost all hope of recompense from the insurer because the trial court built the cabinet that the insurer intended and not the unintended jumble that would have resulted if the policy had been construed as written. (In addition, the insured found it necessary to reallocate his limited funds in light of the adverse coverage determination, which is the nicest way I can say that a large portion of my bill went unpaid.)

Now I do not mean to suggest that always applying the law as decided to the policy as written will always result in judicial happiness and satisfaction. But it is the right and, dare I say it, fairest thing to do.

To illustrate, we go back in time a generation or so. There were only two motion judges in the Law Division in those far off days, and a lot of the first party insurance litigation that now is heard in Chancery was decided either in the Law Division proper or by one of the two Extraordinary Remedies judges who heard cases that were also technically filed in the Law Division. The kind of insurance litigation I was doing then was much more basic, as befitted my age and station in life. I filed summary judgment motions or §2-619 motions presenting issues like whether the insured forfeited coverage by failing to show up for an Examination Under Oath, or by failing to file a Sworn Statement in Proof of Loss upon request, or by failing to file suit within the limited time permitted under the policy.

The two Law Motion judges decided most motions as they were presented, often explaining why they were ruling the way they did, complete with case citations, allowing bright and attentive youngsters, like me, to write down a list of useful cases while waiting to step up.

Well, I was young anyway.

On occasion, though, the motion judge would decide that a particular motion was worthy of full briefing and extended argument. The motion would be set for hearing on the afternoon contested motion call.

For a young lawyer, this was pretty nifty -- a chance to enhance one’s legal writing skills and to speak extensively in court. I had many such opportunities before a succession of motion judges but I recall, in particular, the several occasions I appeared before Judge Thomas J. O’Brien.

In those days I always fought for insurance companies, one in particular, in order to make my daily bread. I assume that, while in private practice, Judge O’Brien, like a lot of attorneys, fought with insurance companies to make his. Regardless, it was my clear impression that Judge O’Brien did not like insurance companies.

But, as I recall, Judge O’Brien never let his attitude toward insurance companies affect his decision making. It did, however, sometimes impact his demeanor....

The attorneys would be waiting in the courtroom for the judge to come out for the afternoon contested call. If Judge O’Brien came out relaxed and smiling, I got nervous. If he told me what a fine brief I’d submitted, or what a good argument I’d made, I knew I was doomed: I could start drafting the order denying my motion.

If, on the other hand, the judge came out aggravated, maybe a little red-faced, I dared to hope that he’d not found a way around me and I might prevail.

The point is---and this was certainly my impression at the time---that the court went where the policy and the law and the facts required. And it seems to me that this is really the way to be fairest to all sides.

Now I realize that these comparatively simple contract disputes of happy memory are not entirely comparable to some of the count-the-angels-dancing-on-the-heads-of-pins questions that may arise in other policy interpretation cases. And I also realize that good judges will understandably try and take a ‘big picture’ point of view. I accept as an article of faith that a settlement is almost always preferable to a judgment.

But the judge tasked with deciding a coverage issue may not be able to direct, much less control, a settlement of the underlying case, and his or her good offices may not even be welcomed by all parties thereto. Still, telegraphing the likely direction of the coverage disposition, arrived at by remorselessly following the policy and the law where it leads, even without actually issuing it, might have a far happier impact on the ultimate resolution of a matter than pulling one’s punches on the coverage question in a misguided attempt to be ‘fair’ to all concerned. Or to maintain the status quo.

I say follow the directions and see what results. Even if what results from the process doesn’t look much like the cabinet offered for sale.

And, not that it really matters, but, for what it’s worth, my cabinet came out just fine. All five drawers fit and everything – although my wife says, and I have reluctantly verified, that the middle drawer sticks some. But I think I know how to fix it.

Tuesday, February 16, 2021

Aside to the person who keeps leaving the comment, "Or you could just run"

Nearly everyone who comments on this site, or tries to, is named "Anonymous." But it is possible, sometimes, to discern particular individuals in this sea of anonymity, even if they can not be specifically identified.

One of these is the person who keeps leaving the comment, "Or you could just run." He or she leaves it on every post, no matter the subject matter, and, if I am not quick enough to pass the comment through, he or she will leave it again... and again... and again... on the same post.

I've printed the comment several times now, on several posts. But it's getting old.

I recognize, of course, that your message is not directed to me, but rather to the judicial wannabes who consult this site as part of their exploration of this possible career path. And I guess your point is that running for the office is the best way for a judicial hopeful to control his or her destiny. You may actually believe that the associate judge process, and the scrutiny of the CBA and the baker's dozen bar groups of the Alliance, are merely potholes and roadblocks on the road to a robe.

But I'm guessing that you're really selling something. Presumably your own services as a campaign consultant. Guru. Maven. Whatever.

I'm a little unclear on how you expect those that are persuaded to take the plunge by your simple, but direct, advice to beat a path to your door. Perhaps my little site is just a minor prong in your multi-faceted marketing strategy. I guess I don't care: Just buy an ad.

Persons peddling products and services aimed at judicial candidates have been invited to buy ads on this site since about forever -- check out the blog Sidebar, you'll find the notice -- while I reserve the right to edit or reject ad copy, for a one-time fee per insertion, I'll run your ad, in a distinctive typeface, clearly labeled as an ad, right here, with all the rest of the posts on this site. Available for as long as this site is up and running.

I haven't put a per-insertion price in the Sidebar because I've increased the price from election cycle to election cycle. However, between now and Labor Day, Or-you-could-just-run person, I will charge you -- or anyone else who wants to buy an ad -- $250 per insertion. Email me at with any questions or to make arrangements to run your ad. Or ads.

Comments will be turned off on advertising posts if for no other reason than to keep your competitors from trying to run you down therein. My mother always said that you don't make your own candle shine brighter by blowing out someone else's. So... competitors of Or-you-could-just-run person, you could buy ads here, too, and make your own pitches.

Granted, $250 is a lot of money. But you're reaching a very specific, select audience here -- as you already know, Or-you-could-just-run person.

And you also know that a well-placed ad can bring dramatic results, a lesson reenforced recently by the case of the 90-year old California man whose two ads in the Wall Street Journal complaining about his Internet service brought personal apologies from the President of AT&T and, more importantly, the long-promised service upgrade.

But those ads cost $10,000. My ads are far less expensive. And do you really need a phone call from the President of AT&T?

Cook County courts closed today for in-person hearings, most scheduled video and teleconference hearings will proceed

Press release issued by the Chief Judge's Office this morning:

To limit the number of people traveling to and from court due to adverse weather conditions for our area, Chief Judge Timothy C. Evans announced that the Circuit Court of Cook County will be open but for videoconference and teleconference proceedings only on Tuesday, February 16. Please do not come to court facilities in person. (Emphasis in original.)

All court proceedings will be conducted by videoconference or teleconference. No in-person hearings will be held, so litigants should not come to court facilities. Traffic court proceedings also will be entirely held by videoconference or teleconference.

Also, with the exception of bond court, the Sixth Municipal District in Markham will hear no criminal proceedings, either in person or by videoconference or teleconference, and hearings will be rescheduled for a future date.

Litigants who cannot attend by teleconference or videoconference, due to any technical limitations, will not suffer any adverse consequences. New dates will be set for those who cannot attend by videoconference or teleconference, and litigants will be notified. Those seeking information about their next court dates can visit the website of the Clerk of the Circuit Court –- –- for details on how to receive court dates via email and text message, starting Wednesday. Information is also available by calling (312) 603-5030, starting Wednesday.

Monday, February 15, 2021

Part 3: Similarities and differences between a DIY project and the interpretation of an insurance policy

Continuing today, for what it's worth, a reflection on constructing a cabinet and how courts should engage in the proper construction of an insurance policy. For Part 1 of this series, click here. For Part 2, click here.

Even with pre-drilled holes that lined up perfectly, I knew I was going to have a tough time trying to put the cabinet drawers together.

And I did.

First off, how could I hold the two pieces of wood – or wood-like material (after all, this was not a particularly expensive cabinet kit) – at right angles to each other and screw them together? I calculated that I would need at least three hands.

Yet, somehow, after what seemed like a day and a half, but was probably more like an hour and a half, I got the first of the five cabinet drawers finished. Well, all but the drawer guides actually, but the instructions said not to do that until all five drawers were assembled.

The second drawer went faster.

By the time I finished with the third drawer, I had begun to wonder whether there was a Nobel Prize for drawer assembly and, if so, whether I was eligible.

Here, of course, I was irrationally exuberant. But I have experienced at least a little flush of euphoria when an apparent solution to an insurance coverage problem has occurred to me, and I expect that judges who handle such cases have experienced this, too: The organizational plan of a policy of insurance, jumping from coverage part to endorsement and back, and back again somewhere else, is not always obvious. And policy language is often dense and obscure at best, perhaps even prolix---now there’s a word you hardly ever see used except in conjunction with insurance policies---so it is, I hope, understandable that one might feel some sense of accomplishment when the policy starts coming into focus.

But this giddy feeling can lead one astray.

After finishing the drawers, I was supposed to attach the metal drawer guides. I of course referred back to the instructions, trying to figure out which went on which side and how it was to be affixed to the drawer. Even with a magnifying glass, the drawings were no help. So, as Dr. Suess said of the Grinch, I puzzled until my puzzler was sore. Lining up the holes was no help: These lined up in several different ways, even in ways that I could see that would certainly not work.

Eventually, I settled on a configuration that seemed consistent with the directions. I put the guides on one drawer and, thankfully, had the presence of mind to try inserting that drawer into the cabinet first.

It fit.

It rolled in and everything.

But it was obviously wrong.

With this configuration I might get three drawers into the cabinet, but certainly not the five that were supposed to be there. And they’d be spaced like Michael Strahan’s front teeth.

Here was a perfect illustration of how an insurance policy must be construed as a whole in order for the policy construction to be correct: If all a judge looks at is the narrow issue—does the drawer fit?—the problem was solved. Call the next. But, if I had allowed myself to declare victory (and say to heck with the two other drawers), I was 100% certain my decision would be reversed once my wife got home.

If this had been an actual court case, however, instead of a DIY project, you can bet there would be someone advocating in favor of the three-drawer solution. And the judge charged with resolving the matter might be tempted to be “fair.”

I know how wrong this sounds, but at least when it comes to insurance cases, I don’t want judges to be fair---at least if ‘fairness’ involves departing from the path described by the policy, and only by the policy.

I can best explain this with some anecdotes.

Not too many years ago I had the privilege of representing a carrier on coverage matters. Basically, the carrier hired me to give opinions concerning disputes it had with its insureds in specific instances. My role was to figure out how a court should decide the controversy. So when I said ‘pay this claim’ it wasn’t because Jack was feeling generous on Thursday but because I had concluded, after reviewing the policy and the applicable case law, that the Circuit Court of Cook County would most likely order the claim paid. Similarly, if I said ‘let’s fight this one,’ it wasn’t because I was hard up for billing, though I usually was, but because I genuinely believed that the Circuit Court of Cook County, when presented with the policy and the facts of the dispute, would find that it had no choice, under the law, but to agree with my carrier.

While it may be different with enormous exposures in environmental cases, at the level I was operating at---mostly liability and D&O policies for condominium associations---there was no strategic or financial incentive to litigate ‘close’ cases. If I told the carrier a case might go either way, the carrier generally opted to accept coverage. It was cheaper.

The problem with this practice is that one has to be right. All the time. Now this is my blog and you’ll just have to take my word for it that I never once suggested filing a declaratory action where I wasn’t absolutely right on the law. At the very least you have to admit I tried very hard to be right.

For example, where a policy provided the insured with coverage for “negligent” acts, and the underlying complaint expressly charged the insured, in both counts, with conduct that was “intentional, malicious and egregious,” I advised the carrier there was no duty to defend.

Easy-peasy, right? Open and shut?

I lost that case.

The trial judge, apparently trying to be “fair,” noted that the plaintiff could have drafted a sufficient complaint for the same relief without alleging intentional or malicious conduct. Which---by the way---was absolutely true. It was also, in the law, completely and totally irrelevant: “It is the actual complaint, not some hypothetical version, that must be considered” in determining whether an insurer has a duty to defend. Steadfast Insurance Co. v. Caremark Rx, Inc., 359 Ill.App.3d 749, 761 (2005).

In most cases---in nearly all cases, in my experience, except this one---a plaintiff’s attorney will do his or her darndest to craft a pleading that will implicate the defendant’s insurance coverage. Because, if the carrier can be forced to pay for a defense, it may also fund a settlement, or at least contribute to a settlement. This is called pleading into coverage and, if I may so myself, when I have assisted in the representation of plaintiffs who were faced with the problem of problematic coverage on the other side, I have been pretty good at it.

In the case I’m referring to here, however, the plaintiff hated the defendant so much that he did not want the defendant to have coverage. Without giving away too many identifying details, though the underlying suit was one seeking damages (including punitive damages of course), the plaintiff’s real object was not so much money as it was control of certain property. Defendant’s attorney (and I know this because he was also counsel for the insured in my ill-fated declaratory case) begged his opponent to file an amended complaint that would properly trigger coverage. To absolutely no avail.

You can imagine how losing such a case was received by my client. Who expected me to be able to read a policy and the case law and properly advise it on how a court would likely rule when presented with the question. But, you may say, this could be an instance where the judge was simply wrong---judges, like all people, are fallible beings---and the court’s decision in that case was simply erroneous and not an instance of misguided “fairness.”

But I have some additional anecdotes that will, I hope, help to illustrate my point and I will get to these in the next installment.

To be continued Wednesday....

Saturday, February 13, 2021

Part 2: Similarities and differences between a DIY project and the interpretation of an insurance policy

Continuing today, a reflection on constructing a cabinet and how courts should engage in the proper construction of an insurance policy. For Part 1 of this series, click here.

I do not suggest that every judge in every coverage case must spend hours and hours in silent and desperate contemplation of the policy Declarations, as I did with the cabinet instructions, first trying to physically identify Parts A through QQ, then refining the search by category, trying, for instance, to distinguish the four different drawer guide rails from each other, holding each piece in turn and holding a magnifying glass over the drawing of each part, trying to determine the distinguishing characteristics of each.

But I think everyone has heard tell of a DIYer who, heedless of instructions, assembled a seemingly serviceable something from the parts provided, looking just like it was supposed to – and winding up with dozens of unused, unexplained parts. In an insurance coverage case, the failure to take every part into account is a miscarriage of justice.

“A court must construe the policy as a whole and take into account the type of insurance purchased, the nature of the risks involved, and the overall purpose of the contract,” Pekin Insurance Co. v. Wilson, 237 Ill.2d 446, 456 (2010). “It is a fundamental rule of construction that meaning and effect, if possible, be given to every part of the contract so that one provision is not construed to annul another.” Saint Paul Fire & Marine Ins. Co. v. Frankart, 69 Ill.2d 209, 216 (1977). See also, Sheehy v. Sheehy, 299 Ill.App.3d 996, 1000-01 (1998) (“Contract language must not be rejected as meaningless or surplusage; therefore, it is presumed that the terms and provisions of a contract are purposely inserted and that the language was not employed idly”).

I think that judges, particularly experienced judges who handle insurance contract disputes on a regular basis, tend to generalize too much. Like the savvy DIY-er who calls up a YouTube video instead of studying the actual directions for the product under construction, a judge may rely on outside factors---what he did in other cases, for example, involving similar policies.

Granted, insurance policies are fairly standardized these days. Some carriers, like Allstate and State Farm, may use proprietary formats, but a lot of property and casualty carriers simply use forms developed and promulgated by the Insurance Services Office (ISO), often without any modification whatsoever. But... ‘often without’ necessarily means ‘sometimes with’ – and a seemingly innocuous change in an ISO form may, or should, be outcome determinative in a given case.

The other thing that veteran judges sometimes do is make unwarranted assumptions about what the outcome in a case should be based on their understanding of what the policy in question is supposed to provide. The experienced DIYer gets a kit for a storage cabinet and she builds it because she knows how it is supposed to be built. But the proper construction of an insurance policy, unlike a storage cabinet, depends on the meticulous execution of the building instructions. The instructions may be flawed—experienced DIYers will all have tales about how following the instructions too closely would have produced a pile of junk—pre-drilled holes that did not line up with the hardware to be affixed—or vital component pieces that turned out to be improperly sized—but the proper construction of an insurance policy requires following the instructions to the letter, even if it produces an unrecognizable mess instead of a handy storage cabinet.

Although insurance policies are ordinarily construed like any other contract, Central Illinois Light Co. v. Home Insurance Co., 213 Ill.2d 141, 153 (2004), insurance policies are different from other contracts in this important respect: In most contract cases, if a contract provision is deemed ambiguous, parol evidence may be admissible to ascertain the parties’ true intent (Thompson v. Gordon, 247 Ill.2d 428, 441 (2011)); however, in the law of insurance, a policy provision that is determined to be ambiguous will just be strictly construed against the insurer, the drafter of the policy. Pekin Insurance Co. v. Wilson, 237 Ill.2d 446, 456 (2010).

A court has the obligation to ascertain and give effect to the intention of the parties in a contract dispute, whether the contract at issue is for liability insurance or the delivery of widgets. But with insurance policies, a court discharges this “primary function” from the policy language alone. Founders Ins. Co. v. Munoz, 237 Ill.2d 424, 433 (2010).

The thing is, when one enters into a contract for the sale and delivery of widgets, the object and purpose of the contract is abundantly clear, and so are the parties’ intentions: One party expects widgets, the other expects payment. The parties may build some contingencies into their agreement: There may be provisions addressing a sudden decline in widget prices, or if the widget makers should go on strike. There may be penalties for late delivery. But what if widget prices unexpectedly rise? What if a shipping strike prevents timely delivery? While not every possible mishap may have been foreseen by the parties to the widget contract, no one has to guess about the parties’ ultimate intent and purpose.

The parties’ intent is not so clear with insurance contracts. If all goes well with one of these, nothing happens.

In the case of a contract for the sale of widgets, if a dispute develops, the issues are pretty well limited: The widgets weren’t delivered. The widgets were delivered late. The widgets were delivered timely, but were defective. Only some of the widgets were delivered. The buyer failed to pay for the widgets.

There is no real limit to the kinds of disputes that can develop in a dispute over an insurance policy. This is as good a starting point for trying to ascertain where insurance disputes may arise as any: While an event that must happen will not be covered, any event that might happen may be. Mattis v. State Farm Fire and Casualty Co., 118 Ill.App.3d 612, 621-23 (1983). Insurers employ underwriters to anticipate and identify and evaluate possible claims before they occur but, as the old saying goes, “Man plans – and God laughs.”

The insurance contract is not activated unless something unforeseen occurs. One might say that if anything happens, the insured intends that the policy will cover the loss and the insurer intends to evade payment. But that is unfair as well as untrue: Insurers spend a lot of money calculating the odds, and pricing their products accordingly, but insurance companies issue policies with the abundant certitude that some claims will be presented by some policyholders and that these will have to be paid. It is fair, however, to say that, in ascertaining whether any particular loss presented was within the coverage contemplated by the parties at the time of contracting, the analysis must be conducted in full, and perhaps distorting, glare of hindsight.

I think this is the real reason why, in resolving insurance disputes, courts are instructed to look solely to the language of the policy. The policy language pre-dates the loss. Anything that either party does following the loss is posturing. (This does not address those situations where post-loss conduct, by insurer or insured, must be evaluated in light of the terms of the policy – or where the insured arguably causes a loss or otherwise voids coverage by pre-loss conduct – these are subjects for a different day.)

Anyway, after a full day of agonizing over the directions, and following them as best I could, my cabinet began to take shape. Already an improvement over my junior high efforts, the thing in my living room was clearly rectangular in shape, not merely a parallelogram. I even had the rails installed on the walls of the cabinet where the drawers were to be inserted. But I still had to build the drawers. This undertaking was deferred to Day 2.

To be continued....

Friday, February 12, 2021

245 applicants for associate judge?

FWIW has been provided with a list containing 245 names of attorneys allegedly applying for Cook County associate judge vacancies. The deadline for applications for the current class was February 3, so it is unsurprising that a list would have been created by now.

The problem with the list, and the reason I'm slow-walking it at this point, is that the Chief Judge's Office has not released any list. I can not independently verify the list's authenticity.

When an application process closes, the Chief Judge's Office will publish a list of applicants, soliciting public comment. I've asked the Chief Judge's Office to verify the number of applicants on my unofficial list and to advise when the official list will be released. I'm awaiting an answer -- but, with the court holidays today and Monday, it may take awhile.

I am following this story, certainly, and I will provide updates when I can. Meanwhile, I can confirm at least one name that is not on the list -- my own.

Cook County Democratic Party presents "Road to the Robe" seminar on March 15

Yet another reason to beware the Ides of March? The 2022 judicial primary season gets officially underway on March 15, from 1:00 to 5:00 p.m., with this Zoom seminar from the Cook County Democratic Party. I've emailed Jacob Kaplan, the Executive Director of the Cook County Democratic Party, for a list of speakers, and I'll update this post if I get additional information.

Admission is free, but interested persons must register in advance at

You may also wish to check out the Party's Circuit Court Committee page -- you know, just to see if you have any acquaintances among them....

One other suggestion: Since this will be a Zoom seminar, it may be best to turn off your cat filter before joining the meeting....

HLAI Judicial Reception set for Thursday, February 25

The reception is set for Thursday, February 25, from 5:30 to 7:30 p.m.

It will be virtual, of course, like all things in this Never Ending Year of Pandemic (now on Bonus Time), but the Hispanic Lawyers Association of Illinois has arranged to use the Remo platform so that attendees can move from "virtual-table to virtual-table to chat and network." (The Diversity Scholarship Foundation used Remo at its 2020 Unity Award Gala, so many potential guests may already have some familiarity with how this works.)

HLAI will present its Distinguished Judicial Service Award to Judge Franklin U. Valderrama of the U.S. District Court for the Northern District of Illinois at the reception.

Tickets for the event are $60 apiece for non-HLAI members ($40 for members, $15 for students) and are available on this page of the HLAI website. (Judges will not be charged for attending, but must register in advance at the link in the preceding sentence.)

Sponsorships are available for this event, ranging from a $500 Bronze Sponsorship to a $5,000 Diamond Sponsorship. All sponsorship opportunities and benefits can be reviewed at this page of the HLAI website. Persons having questions about sponsorships may email Janneth Lanini at HLAI is also soliciting donations to support the reception; donations may be made by clicking here.

Part 1: Similarities and differences between a DIY project and the interpretation of an insurance policy

Starting today -- for what it's worth -- a reflection on constructing a cabinet and how courts should engage in the proper construction of an insurance policy.

I was engaged in a project for a couple of days last week, a project that began innocently enough, as my wife and I were watching the evening news.

A decorator was interviewed about ways in which to keep one’s work space and one’s living space separate... even when they occupy the same space. My wife, a Spanish teacher with students in many different grade levels, was particularly enamored of a rolling cabinet with five drawers and a larger storage compartment which might help her consolidate and improve her home storage of things she doesn’t need in the classroom everyday.

We found one online.

Included in the fine print of the description of said cabinet were the three most dreaded words in the English language: “Some Assembly Required.”

The two most wonderful words in the English language are “Check Enclosed.”

This being February, the month of Valentines, you may be thinking about the three most wonderful words in the English language. A significant number of FWIW readers will look at the preceding sentence with some befuddlement. What, they will wonder, do Valentines Day or February have to do with the three most wonderful words? Of course, a large portion of FWIW readers think those three most wonderful words are, “You’ve been slated.”

But I’m stalling.

Just as I tried stalling after the large box containing the makings of our new cabinet arrived on our doorstep. But, finally, I screwed my courage to the sticking place and, after dropping my wife off at school, resolved to try building the cabinet.

I faced the large box with all the enthusiasm of a condemned man climbing the stairs to the gallows.

Some people are naturally good at DIY projects. My father built a grandfather clock from a kit and a 1927 Bugatti replica from another kit and an old Volkswagen Beetle chassis. After many a trying morning, my father would take a lunchtime stroll through the hardware section of the Sears store in the Loop. To relax.

I did not inherit these qualities. I only go into hardware stores under compulsion, and then warily, fearful that all those smiling, ostensibly-helpful men and women in orange aprons can tell at a glance how breathtakingly incompetent I am.

It’s been more than a half-century now since I had to take a shop class in junior high, and I am still scarred by the experience. While the other kids were mastering drills and lathes and various sorts of power saws, making chairs and lamps and decorative end tables, all of which are presumably still enjoyed today by their children and grandchildren, I was struggling, with hammer and nails, and under the constant and nervous supervision of our teacher, to produce a bookshelf. With two shelves. That listed to port. The shop teacher used to call me his ‘special project.’ I passed—mainly because I did not maim myself or anyone who inadvertently came nearby—but I believe the shop teacher retired immediately after I completed the course.

But back to the present.

I unpacked the cabinet box carefully, spreading the component parts around the living room, trying to guess which was which. I found two smaller boxes within. One had the wheels. The other had the drawer guide rails, screws and cam locks of various sizes, wood dowels, and, thankfully, the instructions.

The talented DIYer disdains the printed instructions. He or she may check it to be certain that all the pertinent parts have been included. But the experienced DIYer thinks he or she can figure out what needs to be figured out without further reference to the instructions. If the going gets tough, a YouTube video can always be found and considered.

It was at this point that I realized that there a great many similarities between a DIY project and the proper interpretation of insurance policies. Both involve construction (insert sting here) – but, actually, I am entirely serious.

Too many judges are like the experienced DIYer who thinks the instructions (or, in the case of an insurance policy, the Declarations) to be unimportant, even optional.

To be continued.... (Click here for Part 2.)

Wednesday, February 03, 2021

Not likely to catch on here.... Justice Carter asks for input on applicants for Will County vacancy

Article VI, Section 12(c) of the 1970 Illinois Constitution provides, in pertinent part:

A vacancy occurring in the office of Supreme, Appellate or Circuit Judge shall be filled as the General Assembly may provide by law. In the absence of a law, vacancies may be filled by appointment by the Supreme Court.

The General Assembly, in its infinite wisdom, has never seen fit to prescribe a mechanism for filling judicial vacancies as they occur. And while it is always the Court which technically makes the appointment, giving the Court the potential power, at least, to veto a particular choice, in practice each justice of the Supreme Court has the privilege of filling vacancies in their respective districts as they occur.

In Cook County---the First Judicial District---there are three justices. They take turns. One hears rumors of trades, from time to time -- one justice may have a particular interest in filling a particular vacancy and may be willing to trade a vacancy already in his or her gift for that one -- but there is no way to prove that such swaps occur.

A justice may fill a vacancy as he or she deems fit. That may mean not making an appointment at all. We may see fewer appointments made in the immediate future, since, because of COVID-19 restrictions, a new judge may not be able to immediately undertake all of his or her new duties. But, difficult as it may be to recall pre-Pandemic times, there have always been vacancies which have gone unfilled.

Though not required, Supreme Court justices have, in recent years, announced vacancies and procedures for filling them. In Cook County, Justice Theis announced the formation of a screening committee back in 2013. Chief Justice Burke has made public announcements for particular vacancies (such as this one, in the 13th Subcircuit, in 2016). Justice Neville announced his procedure for filling vacancies just last month.

Yesterday, however, Third District Justice Robert L. Carter (appointed when Justice Kilbride was defeated for retention) issued a press release asking for public comment on 12 applicants for a Will County vacancy.

That's something you will see soon, when Cook County Chief Judge Timothy C. Evans releases the names of all those applying for associate judge -- but it is highly unlikely that any First District Supreme Court justice would ever release a list of applicants for Cook County Circuit Court vacancies.

But, for the record, here is the list of current Will County hopefuls:

  • Thomas H. Allen,
  • Associate Judge Dinah J. Lennon Archambeault,
  • Timothy A. Bass,
  • John R. Connor,
  • Moira K. Dunn,
  • Katie E. Eisnaugle Rabenda,
  • James B. Harvey,
  • Michael J. Kartsounis,
  • Michael R. Lucas,
  • Zachary B. Pollack,
  • Marzell L. Richardson, and
  • Jeffrey J. Tuminello.

Those wishing to send written comments about one or more of these applicants may address them to: Judge Appointment Comments, Twelfth Judicial Circuit, Administrative Office of the Illinois Courts, 3101 Old Jacksonville Road, Springfield, IL 62704. Comments must arrive by 12:00 p.m. on March 4. Comments should be brief, preferably no more than 250 words, and---here's the part that will presumably dissuade most FWIW readers from offering any comments---commenters are requested to include contact information, including name and address.

Justice Carter will appoint a judicial screening committee made up of representatives from the community, including members of the legal profession and non-lawyers, to evaluate all of the information. The names of the committee members will be announced at a later date.

Tuesday, February 02, 2021

Associate Judge Rena Marie Van Tine elevated to new Circuit Court vacancy

In an order entered today, the Illinois Supreme Court appointed Associate Judge Rena Marie Van Tine to fill a countywide vacancy created by the retirement of Judge Pamela M. Leeming. The appointment is effective February 19 and expires on December 5, 2022.

In a press release announcing the appointment, the Supreme Court noted that Van Tine has served as an associate judge for 20 years. Licensed as an attorney since 1986, according to ARDC, the Supreme Court announcement recounts that Van Tine was an Assistant State's Attorney for 12 years and was also Special Counsel to Illinois State Comptroller Daniel W. Hynes for two years before going on the bench.

Judge Van Tine is a past President of the Asian American Bar Association of Illinois and a co-founding Executive Committee member for the Alliance of Bar Associations. She is scheduled to receive the Mary Heftel Hooten Award from the Women's Bar Association of Illinois at its judicial reception on March 5.

Judge Leeming was first appointed to the bench in 2009. After falling short in the 2010 primary, Leeming was recalled to judicial service. She was elected to the Circuit Court in 2012.

Of Pakistani descent, Judge Leeming was, at the time of her initial appointment, believed to be the first Asian-American to fill a countywide Cook County vacancy. Today's announcement notes that Judge Van Tine "is the first female Indian American judge in the nation to serve on state court."