On the passing of Justice Thomas E. Hoffman

I note that none of the glowing tributes I've seen following the sudden passing of Appellate Court Justice Thomas E. Hoffman mention his early service with the Chicago Police Department. (This Sun-Times article, for example. Or these obituaries published by the Supreme Court or the ISBA. His CPD experience is also not mentioned in his official Illinois Courts biography.)

I hope that honorable service with the police department is still something that the legal profession appreciates and that the omission here is only because Justice Hoffman did so much else in his life, and there is only so much room in any readable obituary.

But it was once well-known among practitioners that Justice Hoffman used to carry a badge. The photo accompanying this post comes from a 2015 function sponsored by the Appellate Lawyers Association at which Justice Hoffman was honored. The ALA blog post recapping the event mentioned Hoffman's CPD experince.

If I recall correctly, then-Judge Hoffman was the first judge assigned to Motion Call C in the Law Division, fairly early in his judicial career (if he wasn't the first, he was one of the first). I appeared before Hoffman many times on that call, winning sometimes and losing, too. I liked him more when I won, of course, but I always appreciated his fairness.

He could be a bit brusque, at times. Some of us younger practitioners attributed this to his police background. I never watched the original Hawaii 5-0, but some wise guy in my circle of acquaintance was of the opinion that Hoffman resembled Jack Lord, the star of the old police procedural, and somehow it became common for some of us to 'hear' (in our imaginations) "Book 'em Danno," after Hoffman made a quick decision.

I can't recall, today, any splendid victories I achieved before Justice Hoffman, either in the Law Division or in the Appellate Court. But I can recall one painful failure. I think anyone who has ever appeared in a courtroom remembers the losses ever so much more vividly than the wins. That's not a knock against this judge or any other; it's just how human memory, or at least lawyers' memory (there must be similarities) works.

The case involved a recent Yugoslav immigrant (he died in 1998, within 90 days of reaching these shores), killed in a nine-foot fall through an opening in the subfloor of a home under construction in Hinsdale. The opening was covered with pieces of ⅝-inch plywood. The testimony of the general contractor (also a Yugoslav immigrant) established that he himself had removed the nails securing the plywood cover only minutes before the fall, then left, without resecuring the plywood or moving it at all (to expose the opening). Thus, no one could see what he had done, and he hadn't told anyone about what he'd done either.

Why did he skedaddle so abruptly? In addition to being a general contractor, the defendant also owned a bar in Cicero. Said bar was equipped with poker machines. He'd received a page that people were coming to check out those poker machines and he could not keep these people waiting.

His testimony was (I thought) compelling: I created a dangerous condition minutes before the fatal accident. I did not tell anyone what I had done before I left.

These plywood sheets had been nailed over the opening for what would eventually be a stairway to the basement. Fully nailed to the subfloor, a marching band could have tromped across these plywood sheets without incident. With all the nails removed, the sheets became a trap door, as the plaintiff's decedent discovered when he walked across them, intending to join the other workers on the site (Yugoslave immigrants all, except for one Mexican guy who they sent to McDonald's) for lunch.

Somehow, despite this testimony, summary judgment was entered in favor of the contractor. I was brought in to handle the appeal by the decedent's family.

Sure, there were other facts, chief among them that, though the house was barely framed at this stage, none of the workers admitted to seeing the decedent's fall. Imagine: immigrants from former Communist countries being wary of speaking to the police. Surely, I thought, when I saw that Justice Hoffman would be presiding at oral argument, a former policeman would not be overly impressed by Eastern Europeans being reluctant to remember anything for the authorities. He'd understand the urgency of the contractor's departure, too. All I needed was a question of fact for reversal.

I thought I'd written good briefs. I thought I had strong facts. I thought the defendant's admissions about creating the unsafe condition so close in time to the fatal accident, and his sudden departure without telling a soul what he had done, were far more important than the speculations of his counsel that, for reasons that could never be known, maybe the decedent intentionally toppled through the opening.

But, when I got up to present my rebuttal argument, Justice Hoffman pushed back from the bench and closed his folder. I knew then that the cause was lost.

The decedent's whole family came to the oral argument, his widow, his grown sons, and other various relations. After the argument, in the cloakroom, when we were getting our coats, all pressed around me, congratulating me on my fine presentation, and telling me what a great job I'd done.

I wanted to burst into tears. I tried instead, however, as gently as I could, to prepare the family for an adverse outcome. They didn't believe me.

Two weeks to the day later (one of those intervening days being Thanksgiving and, thus, only nine business days later) the Order came out: As Justice Hoffman had clearly telegraphed, the trial court was affirmed.

I do not recount this story to besmirch Justice Hoffman's memory. On the contrary, I agree Justice Hoffman was a good and fair and knowledgeable judge... though I still think he was way wrong in this particular case. And it must be admitted that the Supreme Court did not agree with me; my PLA was denied.

I understand that a celebration of Justice Hoffman's life and career is being planned. I will provide that information if I can.