Thursday, May 11, 2017

On media, money, and recent headlines

Channel 11's Chicago Tonight featured a panel discussion a week ago Monday with Law Bulletin editor Mark Karlinsky, former Circuit Court Judge Edmund Ponce de Leon, and John Marshall Law School Professor Samuel V. Jones, a discussion that started with the current headlines---the indictment of Judge Jessica O'Brien and the resignation of Judge Richard Cooke---but was repeatedly steered (in my opinion) by moderator Carol Marin back to the typical local media talking points: "Merit" selection (and the public's ignorance of who serves in the judiciary), the unhealthy political control over the judicial election process, the inability to throw out judges in local retention elections, and the potentially corrupting influence of money in judicial races. Watch the video yourself to see if you agree.

Ms. Marin may have struck all the conventional notes but, in his discussions with the Chicago Sun-Times following his resignation, ex-Judge Richard Cooke departed from the traditional narrative:

Of course, FWIW readers are presumably unsurprised by allegations of politics going on behind closed doors at the county courthouses. We might prefer that our judges all be members of a contemplative commune of black-robed legal philosophers---or we might say that this is what we prefer---but the reality is that we choose these men and women in a political process. (Associate judges are chosen by the elected judges in a different, but at least equally political process).

I have no opinions about the alleged conflict that Cooke said made it inappropriate for him to report to Traffic Court. I have had no opportunity to independently assess whether Cooke's concerns were or were not well-founded.

I do know that almost all new judges start out in Traffic Court. Traffic courtrooms are generally high-volume courtrooms and I believe that handling a room like that would usually be quite different from anything a new judge might have done before. In Traffic Court, new judges get a crash course in commanding the attention of a busy courtroom, assessing witness credibility, functioning as a neutral (quite different from being an advocate of one side or the other), and in making prompt decisions (there's not a lot of room for let-me-get-back-to-you-on-this in Traffic Court). Most new judges have little or no specific Traffic Court experience before going on the bench, but Traffic Court is considered to present legal issues that most judges can pick up quickly -- after all, most judges at least drive cars and have some familiarity with traffic law if only from that.

But, if almost all new judges go through Traffic Court, that means that not all do. There is no statute or ordinance that has been called to my attention that requires new Cook County judges to serve an apprenticeship in Traffic Court. In fact, by coincidence, about six weeks ago, at an Appellate Lawyers luncheon, one of the justices at my table recounted how he had never sat one day in Traffic Court; because of his extensive trial experience he was put immediately in a small claims courtroom instead. These "11th floor courtrooms" -- non-jury civil courtrooms on the 11th floor of the Daley Center -- are often the second assignment for new judges after Traffic Court. But these rooms are also fairly high-volume courts where some of those same initial lessons in how to be a judge may also be learned.

I also know that our Cook County court system is one of the largest unified court systems in the world; there are a lot of different assignments. So I don't know that it was really necessary for Chief Judge Evans and new Judge Cooke to wind up at loggerheads. One can't help but think that there might have been some agreeable compromise available, if both sides were willing.

Having said all that, of course, I freely admit that, if I were offered the opportunity to sit in Traffic Court, I'd sprint for the Daley Center escalator before anyone could change their mind. I suppose that many FWIW readers would do the same.

In my case, I will never have to worry about it. Even if I did have $500,000 or $600,000 that I could squander on an election campaign (¡ojal√°!), those funds would probably not pave the kind of uncontested path to a judgeship that Mr. Cooke had.

Cooke was well-known to the political leaders in the 6th Subcircuit; he'd donated time and money to causes they held near and dear; he'd gained favorable attention from the operation of his legal clinic. I, on the other hand, would be---despite running this blog for many years---a stranger to most of the political operatives in my backyard (at best I'd be a nodding acquaintance). Sixth Subcircuit politicians had reason to believe that Cooke could (and would, if forced) spend his enormous war chest wisely and run a good campaign; on the other hand, politicians in my neck of the woods would at least be sorely tempted to see if I knew how to use my money effectively. And professional politicians can bleed a candidate, make no mistake. Petition challenges may be unfounded, but they are fraught with peril for the uninitiated, and expensive for all concerned. If I survived the inevitable challenges, and knocked any phantom candidates off the ballot, there would still be at least one well-funded challenger. Probably one with a much better-sounding Irish name than mine. Would I have enough savvy to seek out and enlist the aid of experienced political operatives (and follow their good advice) -- or would I throw away my money on buttons and newspaper advertisements? In my quest for good advice would I take on an adviser who was really working on behalf of maintaining the status quo? As the old saying goes, politics ain't beanbag.

Money alone, even large stacks of the stuff, carries with it no guarantee of success in the quest for any political office. (Remember how much money Jeb Bush had? That's why people who fret about the corrosive influence of money per se in politics are focused on a single tree in a tangled forest.) Richard Cooke was smart enough, and connected enough, to use his money as leverage to obtain his goal.

Cooke was no political naif. Thus, whatever the accuracy or merit of his specific contentions, Cooke's comments to the Sun-Times about a different level or species of politics being practiced within the judiciary suggest that clout outside the courthouse does not necessarily translate to clout within. As someone who believes in the importance of judicial independence, I find some comfort in this. A little, anyway.

Wednesday, April 26, 2017

Newly elected downstate judge benched after parolee-roommate arrested for murder

Ronald Duebbert, pictured at right, was elected to the Circuit Court in the far Downstate 20th Judicial Circuit just this past November. He began his judicial career in December -- and was banished to administrative duties in January.

Why? His sometime roommate, David E. Fields, a convicted felon, paroled after serving time for the battery of a pregnant woman, was arrested on a new charge of first degree murder in connection with the December 30, 2016 shooting death of one Carl Z. Silas. At the time, according to a January 6, 2017 story by Robert Patrick in the St. Louis Post-Dispatch, the St. Clair State's Attorney requested the appointment of a special prosecutor to investigate possible obstruction of justice charges against Judge Duebbert.

The Duebbert saga is in the news again this month because the Belleville News-Democrat, after a FOIA suit against the Prisoner Review Board and the Illinois Department of Records, has obtained records showing that Duebbert regularly visited Fields in jail prior to Fields' October 2016 release -- with some visits lasting up to eight hours.

Fields wanted to move in with Duebbert upon his release from prison, but that request was initially denied because Duebbert had guns in his home that he was, at that point, unwilling to relinquish. Then Fields did move in with Duebbert on November 4 -- just days before Duebbert was elected -- only to be "instructed to move from Duebbert’s home Dec. 2," according to Beth Hundsdorfer's article in the News-Democrat, "'because it was a denied host site.'"

According to Hundsdorfer's article, "St. Clair County Chief Judge Andrew Gleeson learned of Fields' residency situation and told Duebbert that he would not allow him to take the bench if Fields continued to reside at Duebbert's home." Duebbert, in turn, according to Hundsdorfer, did tell Fields he needed to move.

What is unclear, at least to me, after reading the various news accounts, is whether Fields in fact had moved from Duebbert's home by December 30, when Fields allegedly shot Silas in the face. Hundsdorfer's April 15 article quotes Duebbert's lawyer as saying, "They [parole authorities] knew where he [Fields] was. No one was trying to hide that."

As for the guns that had been in Duebbert's home, Hundsdorfer's article quotes Duebbert's lawyer as explaining that, after the shooting, Duebbert took police to the location where the guns were stored -- and all were present and accounted for.

The candidate that Duebbert defeated to win election last November was former 20th Circuit Judge John Baricevic. Baricevic and two other 20th Circuit judges, Robert Haida and Robert LeChien, resigned their posts effective December 4, 2016 (the last day of their terms) and entered the 2016 Democratic Primary, seeking to return to the bench in a new term beginning December 5. This maneuver was challenged on the basis that a sitting judge could only seek retention, not run in a partisan election, and the case went all the way to the Appellate Court which decided, in the case of Cook v. Illinois State Board of Elections, 2016 IL App (4th) 160160, that Baricevic et al. were free to do as they did.

In Baricevic's case, the maneuver failed. (Haida and LeChien were reelected; Duebbert beat Baricevic by just 839 votes out of 163,411 votes cast).

Why did these three jurists eschew the retention ballot in favor of running in a partisan primary and potentially contested election? (Haida was not opposed last November.)

Tim O'Neil, in a January 20, 2016 article for the St. Louis Post-Dispatch (accessed today on Lexis), explained Baricevic, Haida and LeChien were motivated by a "scandal involving former judges Michael Cook and Joe Christ.... Christ, a new associate judge, died of a cocaine overdose on March 10, 2013, at Judge Cook's family hunting lodge. Judge Cook later was sentenced to two years in federal prison for possession of heroin and for being a drug user in possession of a firearm." [See, Death of a Downstate judge, downfall of another (FWIW, May 31, 2013).] Barecevic and his colleagues wanted to respond to anticipated "smear campaigns" and Baricevic told O'Neil that they would not have the freedom to do this if they only stood for retention.

Wednesday, March 1, 2017

How the "first-come, first serve rule" applies in Illinois auto liability cases

It happens all too frequently in the real world: The at-fault driver causes damage to multiple vehicles, careening off this one, into that one, his vehicle finally coming to rest when it crumples the front of still another.

Even if no one is hurt in all the chaos, the aggregate damage to the three damaged vehicles may well exceed the available property damage coverage of the at-fault driver.

The owners of the three damaged vehicles have three different insurers. Each will eventually pay their insured’s claim and then want to subrogate against the at-fault driver.

But Company A settles with its insured far faster than Companies B or C settle with theirs. And Company A’s claim alone is for more than the at-fault driver’s PD limit. Company A makes a limits demand and it wants a check yesterday. Can the at-fault driver’s carrier settle with Company A?

Yes, it can.

Under Illinois law, an insurer is entitled to make payments under its policy on a first-come, first-serve basis as long as the settlements are made in good faith. The relevant section of the Illinois Vehicle Code is 625 ILCS 5/7-317(f)(3):

(f) Provisions Incorporated in Policy. -- Every motor vehicle liability policy is subject to the following provisions which need not be contained therein:

* * *

3. The insurance carrier shall, however, have the right to settle any claim covered by the policy, and if such settlement is made in good faith, the amount thereof shall be deductible from the limits of liability specified in the policy.

* * *
See also, State Farm v. Murphy, 38 Ill.App.3d 709, 348 N.E.2d 491 (2nd Dist. 1976). The Murphy court explained, 38 Ill.App.3d at 712, “The insurer is given the right both by policy and by statute to settle claims against its insured. [Citing, inter alia, to the Vehicle Code provision now codified at 625 ILCS 5/7-317(f)(3).] And it is provided in the statute that as long as the settlement is made in good faith the amount of the settlement is subtracted from the amount of the policy limits. This is true even though there are several claimants, as the insurer has the right to settle claims in good faith even though such payments exhaust the policy limits of the insured’s policy so that a subsequent judgment creditor cannot collect on the policy.”

As with every legal rule ever devised, there are exceptions. The Murphy court came up with two (Id.): “The insurer is not exonerated if the prior settlements were not in good faith (Obad v. Allstate Insurance Co. (1967), 27 App.Div.2d 795, 279 N.Y.S.2d 128), or if the insurer in some other way, such as a failure to inform the insured of the danger of excess liability, breached its duty of good faith towards its insured (Fireman’s Fund Insurance Co. v. Santoro (1st Cir. 1967), 376 F.2d 157).”

A prudent insurer will always keep its insured apprised of possible excess exposure. The question of what constitutes ‘good faith’ in this context is trickier; it does not appear to have been extensively litigated in Illinois. However, Sampson v. Cape Industries, Ltd., 185 Ill.App.3d 83, 540 N.E.2d 1143 (4th Dist. 1989), suggests that an insurer has broad discretion to settle claims in virtually any manner it wants: After being served with a garnishment summons, advising of a judgment against its insured and demanding payment under its two applicable liability policies, Zurich, the insurance carrier in the Sampson case, exhausted those policy limits by paying other claims. The Appellate Court reversed the summary judgment awarded Zurich on the garnishment claim, remanding the case for further proceedings – but did not find that Zurich had acted in bad faith.

The better practice for an insurer facing multiple claims which, in the aggregate, exceed its policy limit, may be to try and negotiate a pro rata settlement with all the pending claimants. But Illinois law does not require this. And stalling one claimant because another claimant (or two) might come forward may constitute a bad faith claims practice. See, §154.6(d) of the Illinois Insurance Code, 215 ILCS 5/154.6(d) (the failure to “effectuate prompt, fair and equitable settlement of claims... in which liability has become reasonably clear” may be a bad faith claims practice).

This principle hurts carriers hoping to pursue subrogation claims: By the time a carrier settles up with its own insured, the liability insurance available to the tortfeasor may have been completely paid out to other claimants. But the tortfeasor’s carrier can not be penalized in these circumstances.

Now let’s change the facts. Instead of presenting an excess claim, Company A presents a claim for, say, 75% of the at-fault driver’s PD coverage. The at-fault driver’s carrier settles with Company A for the amount claimed and obtains an appropriate release.

Now Company B comes straggling along. It, too, has a claim for 75% of the at-fault driver’s PD coverage and it is not at all pleased to find that all but 25% of the available policy limit has been paid out to Company A. Company B wants payment of its entire claim. It sues the at-fault driver. Must the at-fault driver’s carrier defend its insured?

Yes, it must.

And, no, the at-fault driver’s carrier cannot just shove its remaining policy limit at Company B and abandon its insured. See, Conway v. Country Casualty Ins. Co., 92 Ill.2d 388, 442 N.E.2d 245 (1982). From Conway on there are any number of Illinois cases which duly note that the duty to defend is broader than the duty to indemnify. Of course, in the example here, there is at least a question of whether the insured’s excess exposure is sufficient to trigger a conflict of interest. We will defer that question to another day.

Now, one more change of facts. Company B is eventually persuaded to accept the remaining policy limit. Its suit is dismissed; appropriate settlement documents are exchanged.

Now—finally—Company C shows up, arm extended, palm upright. It wants 50% of the at-fault driver’s PD limit – but that limit has been exhausted by the prior settlements. Company C is really unhappy when it gets this news. It sues the at-fault driver.

Does the at-fault driver’s carrier have an obligation to defend this suit?


Here, the rule of Zurich Ins. Co. v. Raymark Industries, Inc., 118 Ill.2d 23, 52, 514 N.E.2d 150 (1987), presumably applies (emphasis in original): “Where the insurer has exhausted its indemnity limits, however, the insurer cannot ultimately be obligated to indemnify the insured. Thus, the duty to defend is broader than the duty to indemnify only when the insurer has the potential obligation to indemnify. But when, as here, the insurer has no potential obligation to indemnify it has no duty to defend.”

In an ideal world, Companies B and C would get their respective acts together sooner. Company A would be willing to wait for the other carriers to come to the trough. With all claims presented (which, conveniently, for purposes of our example, add up to 200% of the available PD limit), the at-fault driver’s carrier can hopefully persuade Company’s A, B and C to accept 50¢ on the dollar and all go away at once. If not, there is always the remedy of interpleader, which in Illinois is provided for by §2-409 of our Code of Civil Procedure.

Thursday, December 15, 2016

Recovering lawyer posits plausible reason for nasty anonymous comments

For the cartoon-challenged, the above is yesterday's installment of Pearls Before Swine, drawn by recovering lawyer Stephan Pastis, a cartoon which runs in about half the newspapers left in the country, including our own Sun-Times.

Tuesday, December 13, 2016

Blogger interviewed on North Town News Magazine

Avy Meyers was kind enough to invite me to be a guest on his North Town News Magazine program. The interview, which airs this week, has now been posted online. No, I have no idea what I'm pointing at either.

NTNM can be seen Thursdays on CAN-TV at 7:30 p.m., and again on Fridays at 2:30 p.m. NTNM also airs on a number of suburban cable systems on Mondays. Check your local listings for air times. Meanwhile, with the permission of NTNM host and moderator Avy Meyers and his entire technical crew Sonny Hersh, you can watch the interview here.

Monday, November 21, 2016

Winning isn't everything; sometimes it's not even winning

According to Wikipedia, Vince Lombardi did not coin the phrase, "Winning isn't everything; it's the only thing." Wikipedia says Coach Lombardi borrowed it from a former UCLA football coach, Henry Russell ("Red") Sanders.

Regardless, Lombardi did use the saying, and several similar ones like, "If winning isn't everything, why do they keep score?" or "Winners never quit and quitters never win."

Vince Lombardi was a great football coach... but he might not have been nearly as successful as a litigator.

Lawyers don't necessarily think of our role in litigation in such stark, 1-0 terms. We think that our job is to provide quality representation, providing the best possible presentation of the client's case. This may involve a knowledgeable exposition of the applicable law; it may involve identifying the most persuasive way of presenting testimony and exhibits -- and it probably will involve both. Lawyers are famous, or infamous, for telling clients that we cannot "guarantee" results. What we mean by this is that, though we may do our job, as we understand it, in the best way possible, we can still lose.

Clients, however, are drawn to the Vince Lombardi model. Attorneys are engaged to win, not to lose. If we win, we've done an adequate job; if we lose, we're bums.

At least half the lawyers you see coming out of the Daley Center on any given day are, therefore, just a bunch of bums.

Fortunately, there is some positive correlation between providing quality representation and success in any case. Especially when the client has realistic expectations of what constitutes a "win."

Sophisticated clients, such as many large corporations and insurance companies, realize that, no matter what resources are devoted to any case, and no matter how knowledgeable their lawyers are or how capably their lawyers perform, their lawyers can not achieve a verdict in every case. But the sophisticated client still might "win."

And this is where Coach Lombardi might have come down with a migraine: In a given case a "win" might mean holding damages down below a certain threshold, for example, or simply minimizing bad publicity. For individual litigants, a "win" may be keeping the house (or gaining enough time to sell the house, getting time to pay off a debt, or avoiding the loss of joint custody). In criminal cases, a "win" may involve getting probation instead of jail time or getting a reduced sentence.

But understanding that clients are less concerned about the quality of our efforts and the logic of our arguments than about "winning" gives us lawyers the opportunity to eliminate misunderstandings at an early stage of a representation: What can a win look like in this case? Is a judgment in the client's favor likely? Or should a "win" in this case be seen as something different?

Compromise which prevents further disputes down the road may be far more in the client's interests than a "win" in a given case. Illinois lawyers are licensed to practice as attorneys and counselors at law.

Clients, when your lawyer tries to explain alternatives to trial, or recommends settlement, or explains to you the weaknesses of your case, or recommends a less-than-scorched-earth strategy, your lawyer is not necessarily "appeasing" your adversary or failing to 'represent or support' you.

Yes, clients, there are some hyper-aggressive lawyers out there who will drain your wallet and then suddenly turn pacifist. There are those who will talk a good fight and then 'roll over' at the first sign of resistance. There are also some who will pursue every motion, every remedy, and every argument, some who equate compromise with capitulation, some who will shout from the rooftops, "millions for defense, not one penny for tribute!" -- until your millions, or thousands, more likely, are gone. Then they slink away -- and withdraw from your case. What good has that done you?

There has to be a degree of trust between lawyer and client. The lawyer must be worthy of your trust. And you, client, must not be too quick to waver. But be clear in what you expect: If you want every weapon launched and no argument left unargued, don't beef about the bill. Conversely, after you've cried poor-mouth, and sent your fee payments in on tear-stained checks or, worse, fallen behind in your account, don't get upset when your lawyer starts suggesting compromises and stops being quite so aggressive.

Thursday, October 27, 2016

An open letter to my Cub Fan friends, neighbors and colleagues

Dear Cub Fan Friends, Neighbors, and Colleagues:

I wasn't camped out along LaSalle Street when the parade celebrating the White Sox 2005 World Series sweep rolled by. But I happened to be out---running errands, I guess---and I wandered over to see the throngs waiting for the double-decker buses.

And, as I got close, the tears welled up, unbidden but unashamed. It just hit me, all at once, that I really had witnessed this, that the Sox really did win the Series. My father lived his whole life (and he was granted more than the biblical three score and 10) without ever seeing a White Sox World Series Championship.

I remembered my first trip to the old Comiskey Park, with my grandmother. I don't know if this was before or after she went to Puerto Rico and brought me back an autographed picture of Juan Pizarro. The upper deck in the old park was about the height of the Club Level at the current U.S. Cellular Field (Guaranteed Rate Field as of Nov. 1) but it was still a height for the little boy I was then, and I remember looking from that vantage point out at the greenest grass I had ever seen.

When Julio Cruz scored the winning run (on a Harold Baines sac fly) to clinch the American League West Championship for the White Sox in 1983, I was already living on the Northwest Side. The game wasn't available on free TV (thank you, Eddie Einhorn -- not) but (if I recall correctly) Channel 32 was allowed to show the 9th inning. I was waiting for the air raid sirens to go off---like they did in 1959---but they didn't. I wanted to run outside and bang pots and pans, but my wife told me I'd probably get arrested.

She was probably right: When cable finally came to the Northwest Side in 1984 (it wouldn't come to the South Side for years thereafter which is why so many South Siders are confused in their loyalties to this day) the only question I had for the salesman was whether I could get the Sox games. "Gee," he said, "you're the first guy to ask." On the Northwest Side, I suppose I shouldn't have been surprised.

We had weekend season tickets in those days -- we were in a little group -- and our seats were in the last row of the Golden Boxes on the third base line. We got moved to 'equivalent' seats in the new park -- in the right field corner, where you had to twist to your left just to see the pitch (if you looked straight ahead from those seats all you could see was the fights in the center field stands -- although, sure, sometimes those were more entertaining than the product on the field). But we stayed with those seats, too, for a number of years until paying high school and college tuition became the paramount priority. One of my sons has weekend tickets now.

The point is, I was a Sox fan from birth. I'm a Sox fan now. I am not obligated to switch sides just because your team is now in the World Series.

I get that many of you are thinking of mothers, fathers, grandparents, especially those who are gone now, who introduced you to your team. I shared that experience---like I said at the outset---but I was introduced to the Sox, not the Cubs. Even should the Cubs win it all (and given the decimated state of Cleveland's starting pitching, that sure seems possible), there will be no cathartic release for me, no conversion experience. I won't be crying with joy and sadness and relief and gratitude at your parade; I'll probably be grumbling that I can't get across LaSalle Street with all of you in my way.

It's OK. You didn't think of your mothers, fathers, and grandparents in 2005 either. And I didn't expect you to. Why do you expect me to change now?

I'm watching the games. I'm just not living or dying with every pitch like you are. I'm happy for you, OK? Just stop demanding that I open my veins and bleed Cubby blue. And stop flapping that 'W' flag in my face before I lose it entirely. Are we clear on this?

Very truly yours, etc.

Sunday, October 16, 2016

Bob Dylan's Nobel Prize makes me think of Simon & Garfunkel

The announcement, just a few days ago, that Bob Dylan had won the 2016 Nobel Prize for Literature made me think immediately of Simon & Garfunkel.

No, Your Honor, I really can tie this up: See, in or about 1966, a half-century ago, Messrs. Simon and Garfunkel released an album entitled "Parsley, Sage, Rosemary & Thyme." On the record was a song titled "A Simple Desultory Philippic." The song is a sarcastic commentary on then-popular events and personalities -- and in this verse Mr. Simon makes a comment about the cultural arrogance of the youth of his day:
I knew a man, his brain was so small,
He couldn't think of nothing at all.
He's not the same as you and me.
He doesn't dig poetry. He's so unhip that
When you say Dylan, he thinks you're talking about Dylan Thomas,
Whoever he was.
The man ain't got no culture,
But it's alright, ma,
Everybody must get stoned.
Well, the youth of 1966 are the gray eminences of 2016. And, perhaps, everybody must get stoned, even the members of the august Swedish Academy.

Saturday, September 10, 2016

Creating real confidence in the legal system begins with admitting its limitations

We urge our clients to have confidence in the legal system.

But do we lawyers share that confidence?

I don't pretend to speak for all lawyers, or even any group. But I can say that my most honest answer is yes... and no.

First, the 'yes' part.

I was already practicing law when Operation Greylord exploded into the headlines in the mid-1980s. For those too young to remember, 15 Cook County judges were convicted as a result of this extensive FBI undercover investigation. Greylord trials showed that cases were 'fixed' by willing judges, aided by court personnel, including clerks and deputy sheriffs as 'bagmen,' taking payoffs from corrupt lawyers.

To be honest, I miss the days when lawyers could more or less freely wander the corridors behind the courtrooms, visiting chambers, schmoozing. I really didn't know any judges then; most of my acquaintances were law clerks -- you know, kids my age. But just in visiting with the clerks I could learn a little law and, I suppose, feel more a part of the greater legal system.

Now, of course, chambers are mini-fortresses, the back corridors more moats now than highways. With limited exceptions---usually scheduled---a lawyer's penetration of the inner sanctum these days is typically viewed with suspicion, if not alarm, and generally supervised.

But the trade-off is that our judges today are above reproach. Greylord could have shattered confidence in our judicial system; instead, it had a cleansing effect. We lament the lack of wider public participation in the judicial election process, but there is indisputably more public scrutiny of judicial hopefuls now than there was a generation ago. There is also greater involvement and attention from the bar generally. The Alliance of Bar Associations for Judicial Screening did not exist during Greylord; it is an integral part of the judicial selection process now (if still sometimes observed more in the breach). It is both right and reasonable to believe wholeheartedly in the personal integrity and honesty of the members of our judiciary.

But... and herewith we start on the 'no' part... not all judges are equally gifted. Some are more learned in the law, some are more practical, some are more diligent than others. Some have many of these gifts; others seem to have very few. And not all cases are created equally. That makes a difference: The scholarly judge may be less able to accurately determine which witness is lying and which is telling the truth. The judge who adheres strictly to the rules might be manipulated by a lawyer intent on abusing discovery. The absence of personal corruption is by no means a guarantee that a judge will achieve an appropriate result in any given case.

Judges are human, too, you know, and therefore prone to err.

So when we urge clients to have faith in the system, we must also not over-promise what the system can do.

We can safely promise an honest result in a given case; we can not promise that the result will be appropriate.

So we have confidence in the system -- but we know results are unpredictable.

We have confidence in the system -- but we caution that litigation is often cripplingly expensive, even for the eventual 'winner.'

We have confidence in the system -- but not so much confidence that we do not encourage settlement. Or ADR.

I know many non-lawyers find this difficult to understand. Clients sometimes accuse us of not having the courage of our convictions. If we believe in the system, why would we recommend compromise? Are we being inconsistent? Are we trying to have things both ways?

Contrary to the suspicions of some, this is not post-modern, relativistic angst. In the middle of the 19th Century, a prominent Downstate lawyer had this advice for his colleagues:
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
The Downstate lawyer offering that advice? Abraham Lincoln.

Of course, there are some lawyers who think that the question of settlement should be reserved until the last tenth of a billable hour has been wrung from the case. That's incredibly wrong -- but that's a story for a different day.

Friday, August 5, 2016

Time to set clear the stage and reset it for November

Long past time, really; I know that. But I've been busy practicing law, playing with my grandchildren, worrying about the future. But, finally, today, I move the whole long list of 2016 Cook County Circuit Court judicial primary candidate websites over here to Page 2. A lot of these sites have already come down. The only Appellate Court candidate website already belongs to another hopeful in a different state.

Some of the websites listed below will stay up in hopes of 2018. Some will stay up from inertia. But interested persons (i.e., prospective candidates and their likely core supporters) can browse the sites that remain and harvest ideas for their own campaigns to come.

Call it "research," if you like.

Without further prologue, then, here is the list.
There is still a candidate list in the Sidebar on Page One -- but it will only have the names of those candidates who face contested elections in November. These are only in the 12th and 13th Subcircuits. If you compare the list above with the new list on Page One, you'll note two additions, both candidates for the Mathein vacancy in the 12th Subcircuit, Democrat Janet Cronin Mahoney (I probably didn't find her website until I was putting my Organizing the Data posts together) and Republican James Leonard Allegretti (whose website I didn't find during the primary season).

The only Cook County Circuit Court candidate in a contested race missing from the new Page One list is Thomas William Flannigan, Republican candidate for the Kazmierski vacancy in the 12th Subcircuit.

Updated January 24, 2017 to add the list of November candidates (and their sites, or one-time sites) to this archive:
For those tempted to say 'it took you long enough,' I can only agree. Sorry.

Monday, May 30, 2016

Norwood Park observes Memorial Day -- Part II

For more pictures of today's Norwood Park Memorial Day Parade, see this post on Page One.

This year, it seemed as if the politicians were interspersed among the various school groups and Boy Scout and Girl Scout troops. I don't know if that was to minimize inter-school competitiveness or political rivalries....

For example, a car carrying signs for Republican State Rep. Michael McAuliffe and County Commissioner Peter Silvestri was followed by a group of marchers from Garvey School....

A unit for 41st Ward Alderman Anthony Napolitano came next...

...followed by Cub Pack 3926 from Immaculate Conception School...

... and then by a group for 41st Ward Democratic Committeeman Tim Heneghan...

...a group joined by Merry Marwig, challenging Michael McAuliffe's reelection bid in the 20th legislative district.

And there were plenty of other groups participating in today's Norwood Park Parade....

Leading a group for Lutheran Unity School....
The Norwood Park Historical Society participated.

The Taft High School Navy Junior Reserve Officer Training Corps had a large contingent in today's parade.

I never did find out what these Disney-themed marchers were all about -- but my granddaughter was definitely interested in these marchers.

The Immaculate Conception School Girl Scouts had a sizeable contingent.

This 1930 Model A may have been the oldest vehicle in the pararade.
Cub Scout group from St. Juliana's

Cub Scout group from Norwood Park Lutheran Church

The group from St. Thecla's had a classic car leading their way

Here's the Cub Scout Pack from St. Monica's.

The parade ended today, as it has in past years, with a parade of classic cars.  I have mixed feelings seeing a Mustang that I remember from my youth being included in the parade of antiques....

Not your father's Oldsmobile.  Maybe your grandfather's....

Recycling motto a load of hot garbage

I recycle.

I thought it was particularly stupid of the City of Chicago and Waste Management to ban plastic bags from recycling carts this year -- plastic, you may have heard, is recyclable -- but we can, and do, save our plastic bags separately at our house. The local Jewel still takes them.

But stupid, bureaucratic, short-sighted recycling is better than no recycling at all, right? And I strive to comply. At family parties, the kids may not adequately rinse their beer bottles before putting them in our recycling bin -- so after the party is over I go fish them out and rinse them myself. My daughters often arrive for a visit with a Starbucks container in hand -- some sticky, icky confection that only vaguely resembles coffee -- and I've had to pull inadequately rinsed plastic cups out of the recycling, too, and clean them off. And, you know, my oldest grandkid is not yet four. Sometimes the grandkids will put garbage in the recycling and recycling in the garbage and I'll have to sort it all out later. And I do.

So we set the stage for this past Friday. My wife and I just got rid of the old window coverings on our patio door. After 20 years, five kids, and now four grandkids, the plastic strips did not pull back or rotate any more, except by hand, and many of the plastic strips had actually fallen off, giving the patio door opening a gap-toothed appearance.

Have I made the point yet that these were plastic strips, about seven feet long and maybe two-and-a-half or three inches wide? Made of plastic?

Supposedly, by 2050, according to the World Economic Forum (the link is to a WGN-TV news site), there "will be more plastic than fish in terms of weight in the world’s oceans."

So recycling plastic would be a good thing to do, right?

And, therefore, in with the milk jugs and fruit juice bottles and junk mail this past Friday, yours truly added in those plastic window strips. The ones made of plastic. Lots and lots of plastic.

And the City of Chicago and its designated 'recycling' contractor, Waste Management, refused to pick it up. I got a sticker on my blue bin instead:

The big 'X' on the sticker claims that my recycling was rejected because it contained "[n]on-recyclable items (like garden hoses or propane tanks)."

Now I ask you: Do these look like propane tanks to you?

Could these plastic strips possibly be confused with garden hoses?

But the inability of the Waste Management driver to distinguish these strips from propane tanks is not the thing that made me really upset.

Have you noticed yet?

Look at the pithy slogan on the sticker again: "When in doubt, leave it out."

When in doubt, leave it out?

Seriously? Humanity is choking in its own waste and a recycling company, so called, is urging people to choose landfills whenever there's the slightest question about whether this item or that one meets City standards? What a load of garbage.

According to a recent story on WGN-TV news, "only about 10 to 12 percent of what is picked up [by Waste Management] is meeting the standards for the city’s recycling program. The garbage that doesn’t meet standards goes straight to the landfill."

Maybe some of my fellow citizens are not as fastidious as I am when it comes to separating recyclables from trash and preparing said recyclables for future re-use. OK, maybe. But, after last Friday, I am seriously beginning to wonder whether this recycling contractor is just being far too choosy. Waste Management's contract should be recycled.

Monday, April 18, 2016

In which the lawyer-blogger tries, and so far fails, to get rid of his fax line

I remember when fax machines were the new, bleeding-edge, must-have technology for law offices.

Well... maybe not so new in the 1980s... something like a fax machine, a wirephoto machine, figures prominently in the plot of the 1948 Jimmy Stewart classic, Call Northside 777 (filmed in Chicago, and based on a real-life wrongful conviction case).

But, whether the concept had been around for awhile or not, it wasn't until sometime in the mid-1980s that actual fax machines became ubiquitous in office settings.

The firm I worked for in those days resisted acquiring a fax machine for as long as possible. The senior partners there were wise enough to know that the very ability to pose questions instantaneously creates expectations that those questions will be answered just as quickly. With a fax machine, a client's question about a document could not be fended off by saying, well, I'll have to take a look at the document in order to see if it means what you think it means... you know, building in some time for reasoned consideration, evaluation, maybe even some research... oh no, just *ring, ring*, *whir, whir*, and the document was there, demanding instant interpretation.

And no fax machine ever went off on Friday after 4:30 p.m. with good news.

So I've never liked fax machines. And I haven't shed a single tear as fax machines gradually became yesterday's news, joining floppy disks and pocket pagers in the Office Technology Graveyard.

And yet, for years now, largely because of inertia if nothing else, I've maintained a fax machine and a dedicated phone line for said fax machine. Even though the faxes I receive on said machine look mostly like this one:

You know, once I remembered that I am a solo practitioner, I was able to figure out fairly quickly -- within a day or two, certainly -- that I probably didn't have an H.R. Department.

Hey, what's a little extra overhead among friends, right?

But AT&T finally motivated me to act.

For several years now, every single year -- long about this time -- AT&T would send me an office phone bill for roughly twice the amount I had been paying.

Technically, of course, the fault was mine. In 21st Century Corporate America, the customer is always wrong, whatever that old fool Marshall Field may have said: AT&T would send me letters or leave me messages asking me to sign up for a new plan -- these being different from the usual batch of letters that AT&T sends, or the voice mails that AT&T leaves, asking me to sign up for this or that, because these said my current plan would expire and I would lose my special business rate if I failed to act.

It took me a couple of years to realize that some of AT&T's junk letters and messages were just junk, but others were traps. And in the course of the passing seasons, and the press of business, I would forget the bitter lesson learned. And the double-whammy phone bill would arrive in predictable course, like the swallows at Capistrano.

But not last year. Last year, I wrote about my frustrations -- and I resolved to prevent this from ever happening again.

I would cut the cord.

A colleague had shown me the way: She kept her landline office number but 'ported' it to a cell phone. That way she could work from home, or from the hospital, just as if she were in the office (she was caring for a sick relative when she had her epiphany). And she already had a cell phone, so adding one line was quite a bit cheaper than the cheapest landline.

I had hoped to wait until March, the better to tie in with the annual expiration of my annual AT&T "business rate," but the catastrophic failure of my youngest son's cellphone at the end of January necessitated that I advance my plans. And Costco had a deal. And, after numerous calls and web visits while I stood around looking dumber than usual, the sales clerk said he'd started the process by which my office number would be successfully ported.

He said.

A week went by.

And my office number was still active as a landline.

I steeled myself for the ordeal, like Hercules undertaking his descent into Hades, and plunged into AT&T Phone Hell. After fending off all the computer guardians set to block my access to a real human, I finally spoke with a young lady and asked her why my account was still active.

It's scheduled to be disconnected, she assured me. All three lines? I asked (I had a rollover line in addition to the fax line; this was another holdover from the days when conference calling was pretty spiffy stuff). I'm closing out this account, I told her, and she asked why. I told her.

And, lo and behold, within a few more days, the main number was disconnected. My cellphone office number was up and running.

I disconnected my landline phone. I wanted to pull out the fax machine, too, but, alas, when I pressed "Hook" on the console, I still got a dial tone. I got the fax shown here after I asked for the disconnection of my AT&T service. It has since been joined by a sheaf of brother and sister junk faxes.

Meanwhile, I got another bill from AT&T. Now my old rollover number was the account number -- but, admittedly, there was a price decrease reflecting the change from three lines to two. Except that I had requested -- you'll recall -- to go from three lines to none.

I paid the bill. I marked it "Final" and "Under Protest" and put both account numbers on it -- all the things that we learned, way back in law school, that were supposed to be helpful in preserving rights but which we now know, in reality, to be a complete waste of ink.

So I girded my loins for another descent into Phone Hades.

Why did I get a bill? I asked, when I finally made it through the multiple menus and "all of our service representatives are still assisting other customers" announcements.

The new young lady looked up my account. Never mind that I'd given my new account number, my old account number, my shoe size, and my high school transcript to various computer guardians en route to speak with her. You are scheduled to be disconnected, she told me, eventually.

I am?

That's what it says here.

Can you tell me why I haven't been disconnected yet?

I can't tell from this screen, she told me (and I was not at all surprised), but you are scheduled.


I can't say for certain. Soon.

I let it go at that.

What a dope I am.

The double-whammy bill has since arrived. And I'm still getting faxes from my "H.R. Department."

Update: It took a complaint to the Illinois Commerce Commission, but I finally got AT&T to disconnect my fax line. The AT&T employees who responded instantaneously when the commerce commission complaint hit were very nice and entirely apologetic. But, seriously, should it have had to come to that?