Discoverability of insurance information a significant, but limited, exception to the general rules about what is discoverable in Illinois

In a personal injury case, a defendant is required to disclose all available insurance and the limits of the policies available. Illinois Supreme Court Rule 222(d)(8) requires disclosure of "relevant insurance agreements" in cases where it applies. The standard form PI interrogatories promulgated pursuant to Supreme Court Rule 213(j) all require disclosure of insurance policy information and limits.

However, Supreme Court Rule 201(b) requires "full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts." Illinois courts have interpreted this rule to permit discovery of facts admissible at trial, and of facts that may lead to admissible evidence. Monier v. Chamberlain, 35 Ill.2d 351, 357, 221 N.E.2d 410 (1966).

Whether a defendant has $20,000 or $2 million in insurance coverage is vital information to a plaintiff thinking about settlement. But this fact is neither admissible (see, Illinois Rule of Evidence 411) nor something that's likely to lead to admissible evidence. Thus, disclosure of insurance information is really an exception to the general rule of discovery.

Actually, when you think about it, compelling disclosure of insurance information is a pretty significant departure. Ordinarily, information about the wealth or poverty of either plaintiff or defendant is not admissible for any purpose. See, Elliott v. Brown, 349 Ill. App. 428, 433, 111 N.E.2d 169 (1st Dist. 1953), a suit to recover attorney fees ("[t]he question of the wealth or poverty of defendants was not in issue, and an argument designed to persuade the jury that the defendants were worth at least a quarter of a million dollars was calculated to influence a verdict by a consideration of improper factors").

If information about insurance coverage is so helpful to a plaintiff trying to evaluate settlement prospects, wouldn't detailed information about the defendant's personal, private (uninsured) finances be important?

Perhaps it would be helpful, the Appellate Court admitted in Manns v. Briell, 349 Ill. App. 3d 358, 364, 811 N.E.2d 349 (4th Dist. 2004), but, nevertheless, discovery of personal assets before judgment is not permitted. "The difference between a defendant's financial assets and a liability insurance policy was explained in [People ex rel. Terry v. Fisher, 12 Ill. 2d 231, 238, 145 N.E.2d 588, 593 (1957)], where the court noted that liability insurance exists solely for the purpose of protecting a party injured by the negligence of the policyholder."

Liability insurance policy proceeds are not personal assets and can not be accessed by an insured, but only on behalf of an insured, and only for the benefit of a person injured by the insured's fault. See generally, In re Liquidation of Legion Indemnity Corp., 2013 IL App (1st) 120980 (liquidator required to reimburse insured for only what injured party actually received in settlement agreement, not the larger, stipulated amount assigned to bankrupt insured for purposes of claim against liquidator) (although the reported opinion relies on the court's interpretation of §209 of the Insurance Code and on the principle that injury cases may not be assigned). In short, a liability insurance policy is a private contract with a public purpose. Injured members of the general public are beneficiaries of liability insurance policies (Barney v. Unity Paving, Inc., 266 Ill.App.3d 13, 23, 639 N.E.2d 592 (1st Dist. 1994)). See also, M.F.A. Mutual Ins. Co. v. Cheek, 66 Ill.2d 492, 363 N.E.2d 809 (1977). In M.F.A. Mutual, a case construing the cooperation clause of an auto liability policy, the Supreme Court noted that such a policy is "more than a private agreement between the insured and the insurer against losses sustained." (66 Ill.2d at 499-500.)

There are two takeaways from this, one specific and the other very general. Specifically, in an injury case, insurance coverage and policy limits are discoverable because they are not personal, private assets of a defendant who has not yet been found liable to anyone. Generally, although one often sees sweeping statements to the contrary, there are limits to what may be discovered in any case, limits which may be expanded or contracted as a matter of public policy and sound judgment.

It's a lot more than seven words you can't say on the Internet, at least not if you don't want Big Brother watching you

I saw a link to this Daily Mail article on Facebook, Revealed: Hundreds of words to avoid using online if you don't want the government spying on you (and they include 'pork', 'cloud' and 'Mexico')."

It would all be so silly if this were something from the movies. Indeed, there were all sorts of movies about overbearing, ridiculously suspicious governments during the Cold War Era -- it's just that the government in question was always on the other side of the Iron Curtain. When we pretended not to be scared of the Soviet Union, we made fun of the Reds (Silk Stockings, for example. And, as much as we fretted about them we worried about how the long-term conflict was changing us. Sometimes we tried to laugh about it (Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb); sometimes, we tried to face our fear head-on (Fail-Safe).

But this is real life, not reel life. And no one is trying for laughs. Yet, look at this list of words.

(You can find these lists here, starting at p. 20 of the 2011 Analyst's Desktop Binder, apparently published by the Department of Homeland Security, National Operations Center.)

Your tax dollars at work: With this list, all lawyers are necessarily under suspicion: "mitigation" is a suspicious word, and so is "breach." Don't write about contract disputes on line! Doctors, too, are under suspicion (as are sick people): "Influenza" is suspicious, and so too "virus" and "symptoms." With this list, how can Tom Skilling still be at large? -- look at all the suspicious words about weather.

In My Fair Lady, when he took her to Ascot, Rex Harrison tried to limit Audrey Hepburn to talking only of the weather and her health -- but things didn't work out so well. Still, at the time, Eliza won attention from only Freddy Eynsford-Hill. Today, with these keywords, she might also have attracted attention from DHS.

It's all well and good to make fun of lists like this. It's just... it's just someone in the government thought this list was a good idea. And it wasn't just one someone in government. And it wasn't just one rogue bureaucrat who thought it would be a good idea to compile dossiers on mostly legal 'Occupy' protests, as this Partnership for Civil Justice Fund website documents.

And c|net reports just this week, "U.S. gives big, secret push to Internet surveillance."

History records that Ben Franklin was leaving the closing session of the Constitutional Convention when he was stopped by a lady in the street. "Well, Doctor," said the lady, "what have we got? A Republic or a Monarchy?" Franklin responded, "A Republic, if you can keep it."

This isn't how we do that.

Judge fines himself when cellphone goes off in court

Photo credit WZZM 13, Grand Rapids

Judge Raymond P. Voet, the Chief Judge of the Ionia County, Michigan District 64-A Court, has a no cellphone policy posted in his courtroom. Phones interrupting his court are subject to confiscation. The phone owner will be cited for contempt. Typically, Judge Voet has imposed a $25 fine on cellphone violators before the phone can be reclaimed.

On April 12, as a prosecutor made a closing argument during a jury trial, the cellphone in Judge Voet's shirt pocket "began to emit a voice, [loudly requesting] that Voet give the phone voice commands for voice dialing." Embarrassed, Voet shushed his phone -- and then cited himself for contempt and, at the next recess, paid a $25 fine. Voet said if he can't live by the rules he enforces he has no business enforcing the rules.

The not-quite-a-legal-maxim involved in this case is what's sauce for the goose is sauce for the gander.

The story has made headlines around the world (see, for example, Lowering the Bar, Overlawyered, the Pakistan Daily Times, Ireland's Daily Edge, the Sydney Morning Herald, or Argentina's El Diario 24).

Now this is good... and bad.

It's a great stuff-happens, aw-shucks story, and the judge was obviously a good sport in following his own rules. It should have given readers of the Ionia Sentinel-Standard a warm chuckle.

But it's a little unsettling that a nice little story like this goes round-the-world viral. Remember: Dog-bites-man is not news, what makes the news is man-bites-dog. In other words, what makes the news is the rare, the unexpected, the surprising.

Is it really so surprising that a judge would follow the rules that he himself set? Gosh, I certainly hope that wouldn't be the case -- but a lot of editors seem to disagree.

And... if the common perception is that what Judge Voet did was rare, unexpected, surprising... newsworthy... how can we overcome it?

"You never call, you never come over -- I'm gonna sue you"

The classic parental lament... updated?

Could be -- at least in China, starting July 1, according to an April 6 article in the Toronto Star, "Chinese parents can sue adult kids — for not visiting enough."

The measure may be a contemporary expression of a traditional Chinese value, but it's also a cost-cutting measure. According to the Star article, "China’s working-age citizens, ages 15 to 59, fell as a share of the population last year, and the National Committee on Aging estimates people 60 years and older will rise to 487 million by 2053 from 185 million in 2011." Children who care for their parents relieve the state of that burden.

China isn't the only country with a graying population. Might we see similar legislation here at some point?

A similar American law would raise a host of questions.

How often would a child have to visit to avoid legal trouble?

Would an only child have to visit more often than one of six siblings?

How many phone calls would be deemed equivalent to one in-person visit? Should a call from a child who lives 1,000 miles away count less than a call from one who lives 10 miles away?

Would holiday visits count more -- or less -- than visits on non-holiday weekends?

Does a visit count if the child brings his or her laundry? (Not if Mom has to do it, surely.) What if Mom cooks?

Punxsutawney Phil charged with 'misrepresentation of spring' in Ohio

Facing death in Ohio?

When a fat rodent falsely raises the hopes of millions of Americans, a price must be paid.

At least that's the tounge-in-cheek theory of Butler County, Ohio County Prosecutor Michael T. Gmoser, who, according to the AP, today indicted Punxsutawney Phil with "purposely, and with prior calculation and design, [causing] the people to believe that spring would come early," a "crime" amounting to a felony "against the peace and dignity of the state of Ohio." (It's apparently been cold there, too.)

Gmoser is demanding the death penalty for Phil.

In their linked article, Amanda Lee Myers and Mark Scolforo attempt to excuse their failure to obtain a statement from the accused by noting that Punxsutawney Phil's phone number is unlisted. They did note, however, that "Bill Deeley, president of the Punxsutawney club that organizes Groundhog Day, said Phil has a lawyer and would fight any extradition attempt by Ohio authorities."

Myers and Scolforo also note that Gmoser seems to have given a prosecutorial pass to "Ohio's own forecasting groundhog, Buckeye Chuck." (If our local newspapers reported any groundhog observations from Brookfield or Lincoln Park Zoos this year they were too embarrassed to allow the stories to be archived on Lexis.)

Meanwhile, Fake Science provides an alternate suggested punishment for Punxsutawney Phil. On second thought, Mr. Gmoser's recommendation may be more humane....

Unless you're a future Hall of Famer with lots of other options, don't be "insulted" by a low-ball offer

The Chicago Bears have parted ways with middle linebacker Brian Urlacher.

In his day Urlacher was a pretty darn good player -- a worthy successor to Bears MLBs Mike Singletary, Dick Butkus, and Bill George, all of whom are enshrined in the Pro Football Hall of Fame. Mr. Urlacher is likely to join them in due course.

However, like all of us, Urlacher has aged. He has lost a step. Injuries have sidelined him, and the cumulative effects of a long NFL career are impossible to overlook.

But Mr. Urlacher is not just a victim of time, but of timing: The Bears parted company with Lovie Smith after the end of last season and the new coaching staff owes Urlacher nothing but the respect due to any one-time great. To make matters worse, Urlacher's contract has expired. He is a free agent.

If Lovie Smith & Co. had been retained Urlacher would still have had to take a big pay cut to stay with the team. If he wants to play anywhere, he's going to have to take a mere fraction of the $7.5 million he made only last season. He and his agent knew that; they had to know that.

Nevertheless, Mr. Urlacher has made it known that he is "insulted" by the $2 million offer ($1 million guaranteed) made by the new regime in Halas Hall. It wasn't an offer, Urlacher snarled, it was an "ultimatum." Take it or leave it. So... he left. (Well, maybe he left -- the team says there was a mutual agreement to stop talking -- Urlacher says the Bears closed the door on him.)

Where he lands from here -- whether he can find work anywhere else -- is uncertain. If he gets a seemingly 'big' contract from anyone it's a safe bet that it would be incentive-laden, with the gaudy-sounding money coming at the end of the contract, after Mr. Urlacher is likely to be discarded by that successor team. Maybe he'll find a team willing to guarantee more than the Bears -- but don't bet the mortgage money on it.

But even if Mr. Urlacher finds large dollars on the free agent market, I don't think he should have been "insulted" by the reported $2 million offer. I'd guess that, however unenthused the agent may have been about the $2 million proposal, Mr. Urlacher's agent probably said something similar to his client when conveying the offer.

Establishing value, whether for a football player's contract or in a court case, is a difficult process, with both sides in the negotiation jockeying for advantage. But the offer of any amount (well, almost any amount) shows a willingness to successfully complete the negotiation. Mr. Urlacher may admit, on some level, that his skills are not what they once were, but he clearly does not think he has fallen as far as the Bears' reported offer would indicate. The Bears thought they could survive without Mr. Urlacher, but they were at least interested in trying to find a way to keep him on the roster.

But the Bears had other concerns besides the current value of Mr. Urlacher's skills: They have cap worries, other salaries to negotiate, money that must be set aside for draft picks. All of these figured into the number they pushed across the table to Mr. Urlacher and his agent.

And, of course, the Bears may very well have said, or at least intimated, that this $2 million offer was the best they could do and that they could not possibly budge off that figure. Something like this happens in almost every negotiation.

And sometimes it may even be true.

In negotiating a settlement in a court case, there is usually only one way to test the seriousness of the other side's position: Keep talking. (Mr. Urlacher said his agent tried to make a counter and was rebuffed.)

Mr. Urlacher may have other options. He can use the Bears' offer as a starting point in 'shopping' his services to other NFL teams. Of course, he might have been able to do that without cutting ties with the Bears. On the other hand, maybe the Bears' offer really was an ultimatum. Maybe Mr. Urlacher doesn't particularly care to play for the new Bears coaching staff; maybe he feels that, if he has to subject his skills to scrutiny by a new coaching staff somewhere, it might as well be anywhere.

It's difficult, especially in face-to-face negotiations, not to take offers and evaluations personally, sometimes deeply so. Strong emotions can cloud good judgment, however. This is why, in an age where full-blown litigation has become prohibitively expensive, many cases are resolved with the assistance of a mediator. A neutral who is dedicated only to helping the parties reach a mutually acceptable agreement can help negotiating parties get past the emotional surges that follow from "low-ball" offers or "outrageous" demands.

Juicy roles for judges in the Golden Age of Hollywood

Lawyers fare badly in popular entertainments. If the butler didn't do it, it's a safe bet that the lawyer did.

Even on TV shows about lawyers, lawyers often fare badly. After all, although Perry Mason won nearly every case (Wikipedia tells us that Mason actually lost two cases during the long run of the series,"The Case of the Terrified Typist" and again in "The Case of the Deadly Verdict") his victories all came at the expense of D.A. Hamilton Burger.

How the heck did Burger ever stay in office?

In one sense judges fare better than lawyers in popular entertainments; at least they're not the usual suspects. But that's mostly because they're nearly invisible. While there are certainly exceptions (Fred Gwynne in 1992's My Cousin Vinny comes immediately to mind), in the the ordinary course, to the extent they exist at all on stage or screen, judges are typically bit players with lines like, "Overruled," or, sometimes, "Sustained." If an actor is lucky enough to land a recurring role as a judge in a courtroom drama, and if he or she has a particularly good agent, he or she might even get to bang a gavel every couple of weeks.

It was not ever thus. In the Golden Age of Hollywood, in some our best-loved movie classics, there were some meaty, meaningful roles for judges. Let me share a few of my favorites here.

Cary Grant played Nick Arden, a lawyer, in My Favorite Wife (1940). His first wife, Ellen, played by Irene Dunne, was lost at sea and presumed drowned. After seven years, Grant is ready to have Dunne declared legally dead -- and he's ready to marry again, this time to Bianca, played by Gail Patrick. The matters are set for the same day in the courtroom of Judge Bryson, played by Granville Bates.

Image obtained here.

Of course, that would also be the day that Irene Dunne returns home, rescued from a desert island by a passing Portuguese freighter.

It turns out Ellen wasn't the only survivor on the island. She was stranded all that time with Stephen J. Burkett, played by Randolph Scott (who does a fine Johnny Weissmuller imitation). She called him "Adam;" he called her "Eve." Nick Arden /Cary Grant is jealous, and eventually arrested for bigamy. Judge Bryson is called upon to sort out the mess:

Judge Walter Bryson: Who are you?
Stephen Burkett: Well, your honor...
Nick Arden: Oh, he was on the island with her. He's not important to this case.
Judge Walter Bryson: I'll decide what's important to the case. What island?
Nick Arden: The island where my wife stayed for seven years, your honor.
Judge Walter Bryson: They were on an island together for seven years?
Nick Arden: Yes, your honor.
Judge Walter Bryson: Not alone?
Nick Arden: Yes.
Judge Walter Bryson: Hmm. Same island?
Nick Arden: Yes.
Judge Walter Bryson: Is that in the brief?
Nick Arden: No, your honor!
Judge Walter Bryson: Oh, that should be in the brief. That's the most interesting part of the case.

Miracle on 34th Street (1947) is not just a holiday classic, it may be the most lawyer-friendly movie ever made. John Payne has the romantic lead as lawyer Fred Gailey, but the Assistant D.A., played by Jerome Cowan, is also sympathetic. And Gene Lockhart plays Judge Henry X. Harper, who desperately wants to find a way not to lock up Santa Claus in an insane asylum, especially after his friend and political adviser Charlie, played by William Frawley, acquaints him with the likely consequences.

(You know, for years my father had me half-convinced that Gene Lockhart was Lassie's grandfather. Well, Gene's daughter was June Lockhart, and she played the mother on the old Lassie TV show....)

Frank Capra often had good parts for judges in his movies. Speaking of insanity trials, that's H.B. Warner framed between Gary Cooper and Jean Arthur during the climactic trial scene in 1936's Mr. Deeds Goes to Town.

But the best role for a judge in a Capra classic was probably Harry Davenport's in 1938's You Can't Take It With You.

Harry Davenport

It's not a big part, but Davenport plays an integral role in the big crowd scene that is a staple in all the great Capra films. He has to fine Grandpa Vanderhof (played by Lionel Barrymore) $100 for manufacturing fireworks without a license, but the packed courtroom, filled with Grandpa's friends and neighbors, surges forward to pay the fine for him. The judge tries to maintain order, but he is quickly carried away by the popular sentiment, smiling benevolently as he tosses a coin of his own into the hat that's been passed.

(That Lionel Barrymore could really act. How else to explain his transformation from the nicest man in the world in You Can't Take It With You to the meanest in Capra's 1946 classic, It's a Wonderful Life?)

Harry Davenport played a judge again in 1947's The Bachelor and the Bobby-Soxer. Of course, Myrna Loy was the judicial star of that picture; she played Judge Margaret Turner, who leaps to all the wrong conclusions when her baby sister, Susan (Shirley Temple!) develops a crush on artist Richard Nugent, played by Cary Grant (yes, we're back to him). Davenport plays Judge Thaddeus Turner, Margaret's great-uncle.

Image obtained from IMDb.

The Bachelor and the Bobby-Soxer is anything but a courtroom drama. Although it won the Oscar for Best Original Screenplay, many in the first-run audience 66 years ago would have been unfamiliar with the idea of a female judge. Modern viewers will be uncomfortable with the idea of Cary Grant being required to squire Shirley Temple around town, particularly as an alternative to incarceration (all the while falling for the more age-appropriate Myrna Loy). And the age difference between the "sisters" is about as plausible as, oh, the age difference among the brothers in The Sons of Katie Elder. But that's an entirely different list.

Popehat addresses the status of bloggers vs. journalists

I had the privilege of meeting Ron Magers, the longtime news anchor at Chicago's ABC-7, at the CBA's Kogan Awards Luncheon last May. Mr. Magers was there as the keynote speaker; I was there as a nominee for one of the awards.

Mr. Magers' address concerned the many changes in the media and reporting that he's observed in the course of his illustrious career. He devoted a good deal of his talk to the impact of the Internet, both good and bad. Among the things he didn't like were 'news aggregators,' that is, sites that take content from other sites, often quoting liberally from the sources. Links may be provided back to the original sites, but if enough content is stolen, er, quoted, who needs to go back and read the original? The aggregators may deliver some web traffic to the original sources, but they siphon off some, too -- and, meanwhile, they sell ads on their pages to make money. Some of them make a lot of money.

Another thing that Mr. Magers wasn't too keen on was blogging and bloggers. While some bloggers may do some original work, he conceded, others are merely shouting from soapboxes in Bughouse Square... or in pajamas from their mothers' basements.

One of the best bloggers out here in the Ether, Ken, of Popehat, had a great post yesterday entitled, "Blogging: Compared To What?." I wish I'd had Ken's post in my back pocket when I heard Mr. Magers speak last May. At the risk of sinking to the level of a mere aggregator, allow me to quote liberally:

Despite how mainstream bloggers have become, and despite the fact that almost all "mainstream media" outlets have their own bloggers, the prevailing attitude seems unchanged in more than a decade: bloggers, we're told, are unreliable, biased, wild-eyed pajama-clad basement-dwellers.

Apart from the pajamas and basement part, I think this is irrefutably true. Bloggers are biased and unreliable.

Here's the key question: compared to what?

* * * * * * *

This is not to say you should trust bloggers. You should exercise skepticism about what you read on blogs. You should use your independent judgment about their work product.

But why, exactly, shouldn't we do the same with "mainstream" journalism outlets? By what stretch of the imagination are they reliable just because they have the big name?

I've seen this quote attributed to Mark Twain -- but I can't confirm that it really is one of his: "If you don't read the newspaper, you are uninformed; if you do read the newspaper, you are misinformed." Whether Twain said it or not, it is a pretty true statement.

The best defense against misinformation is to cultivate multiple sources of information -- even if some of them are blogs -- and always maintain a healthy sense of skepticism.

----------------------------------------------------------------------------------
Arguably related: You can't believe everything on the Internet... or on TV... or in the newspaper, for that matter. Now what?

Stories you may have missed in the week just past

Red light for Redflex. The supplier of Chicago's red light cameras, Redflex Traffic Systems, was informed this week that its contract will not be renewed this summer and has been disqualified from bidding on Mayor Emanuel's 'speed cameras,' "amid claims the company showered a city official with thousands of dollars in free trips—including a jaunt to the Super Bowl," according to Rachel M. Zahorsky's article Tuesday for ABA Journal Law News Now. Citing a Tribune story, Zahorsky writes that the chairman of Redflex Holdings has resigned "and trading in the company’s stock was suspended amid revelations that it is sharing information with law enforcement authorities."

Nine judges in ticket-fixing scandal in Pennsylvania. Rachel Zahorsky had another article Tuesday on ABA Journal Law News Now about H. Warren Hogeland, a Philadelphia Traffic Court judge, who pled guilty this week to mail fraud and conspiracy charges. Hogeland is one of nine present or former Philadelphia Trial Court judges "charged with dismissing or reducing citations for friends, family, associates and political allies." The Philadelphia Inquirer reported on February 13 that another former Traffic Court judge, Kenneth Miller, also pled guilty.

In a February 1 story, John P. Martin and Craig R. McCoy of the Inquirer described the scandal in these terms:

The indictment alleged that a practice was more the rule than the exception - judges or their assistants shredding documents, shifting cases to friendly judges, and hiding behind code words. Instead of bluntly asking a colleague to quash a ticket, judges allegedly asked for "consideration" on certain cases and then watched them disappear.

Consideration, the indictment said, was reserved for friends and relatives, ward leaders, and contractors or merchants who could trade favors of their own. Requests came by phone, in person, and in notes dropped in a box at a local bar.

"In addition to depriving the City of Philadelphia and the Commonwealth of Pennsylvania of funds rightly owed on traffic violations, their corrupt conduct also undermined the confidence that law-abiding citizens have in our Philadelphia court system," U.S. Attorney Zane David Memeger said.

By the end of last week, according to the Inquirer, the Philadelphia State Senate had passed two bills, one to "eliminate the seven-member court from the state constitution, which would require several years to accomplish. The second would hobble the court in the interim by transferring its responsibilities to Philadelphia Municipal Court."

Blogging can be hazardous to one's law license. The Martindale.com Blog had a post Monday entitled "Chicago Attorney Faces Ethics Violation For Airing Grievances on Blog." The blog in question, marygsykes.com is subtitled, "[a]n attorney blog concerning corruption and greed in the Probate Court of Cook County."

The ARDC has charged the attorney-proprietor of the marygsykes.com blog with "making a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, in violation of Rule 8.2 of the Illinois Rules of Professional Conduct," "conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct," "conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct," "presenting, participating in presenting, or threatening to present criminal charges to obtain an advantage in a civil matter, in violation of Rule 8.4(g) of the Illinois Rules of Professional Conduct," and "conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute." (The ARDC's entire complaint against the blogger can be accessed by clicking here.)

One of the things they try to teach lawyers and movie directors alike is "show, don't tell." It's more persuasive for the the audience to reach conclusions on their own, on the basis of facts presented, than to be presented with demands that they accept the ultimate conclusions of the lawyer or director. I do not pretend to know one single thing about the cases that the blogger is so upset over, and I do not presume to have an informed opinion about the merits of the ARDC's complaint, but I have looked at the blog in question, and it seems to me there is a lot more telling than showing going on there.

He's not just the new Bears coach, he's also a lawyer

Marc Trestman photo obtained from NBC5's Grizzly Detail blog.

New Bears Coach Marc Trestman is a graduate of the University of Miami School of Law and, according to his Wikipedia bio, a member of the Florida Bar since 1983.

It may be a good omen. Tony La Russa passed the Florida Bar in 1979, shortly after he took the helm as manager of the Chicago White Sox. He did OK, here and elsewhere.

Why the exciting finishes in two of last weekend's NFL playoff games should matter greatly to Bears fans

Baltimore had somehow kept pace with Peyton Manning and the Denver Broncos on Saturday afternoon. Joe Flacco played like he was Manning's equal, and maybe just a little bit better.

Thus, as the clock wound down, Joe Flacco's connected on a 70-yard heave to Jacoby Jones, knotting the score at 35-all. Peyton Manning led the Broncos onto the field with only 31 seconds on the game clock but two timeouts.

Peyton Manning -- arguably the greatest QB of this or any generation, the field general, the miracle worker, in a charmed comeback-of-the-year, MVP season -- yes, that Peyton Manning took a knee to send the game to overtime.

Who the heck came up with that genius plan? Even if Denver had won the game, this would have been among the stupidest plans ever. If this was head coach John Fox's idea, the good people of Denver should rise up in righteous anger and demand his firing. If this was Peyton Manning's idea of sound strategy, yet another of my idols is revealed to have feet of clay.

But what if Peyton's kneel-down was the brainstorm of Denver OC Mike McCoy? He's on the Bears' interview list and among the reputed favorites. If McCoy couldn't figure out that Manning had a chance to put the Broncos in position to win that game in regulation, Mr. Emery, cross him off your list.

In the first game Sunday, a seemingly insurmountable Atlanta lead was darn near surmounted by Russell Wilson and the Seattle Seahawks. A field goal in the last minute put Seattle ahead for the first time and left the Atlanta crowd stunned.

Matt Ryan led the Falcons out onto the field with just 25 seconds left -- but got his team down the field and in position to kick a seemingly dispositive field goal (folks watching in Denver must have found this quick, efficient drive particularly painful).

Only six seconds now stood between Atlanta and the NFC Championship Game. All that Atlanta had to do was squib kick the ball -- not high and deep so as to avoid a return, but deep enough to make it unlikely that, short of a miracle, Russell Wilson would be unable to do any harm.

The kick, however, resembled more an onside kick attempt than a squib kick -- and the Atlanta celebration was put on hold.

Atlanta survived and will play this weekend. But the Falcons' special teams coordinator, the guy responsible for telling the kicker what to do after the field goal, is Keith Armstrong, another Bears head coach candidate. Did Atlanta's kicker make a physical mistake? Shouldn't he have practiced the squib kick in anticipation of just such an occasion? Surely he wasn't told to kick it that short, was he? If Mr. Armstrong doesn't have a compelling explanation, Mr. Emery, cross him off your list.

NASA may launch unmanned Orion capsule in 2014

At least that's what NASA said in a December 13, 2012 post on its website. We still have to get through 2013 first.

Meanwhile, the rapidly graying believers in President Kennedy's promised "New Frontier" may be less than totally geeked to learn that NASA has awarded contracts to develop crew transportation systems.

It's perhaps for the best that NASA wasn't around in 1903. The Wright Brothers might have gotten some government money for their experiments at Kitty Hawk (Samuel Pierpont Langley, the secretary of the Smithsonian, got some government cheese for his unsuccessful "aerodrome" efforts), but would Orville and Wilbur ever have been able to meet NASA's certification standards?

The three lucky recipients of NASA contracts are Chicago's own Boeing Company, Sierra Nevada Corporation Space System, and Space Exploration Technologies Corp. (SpaceX).

The SpaceX Dragon capsule docking at ISS in May 2012

At this point, only SpaceX has successfully completed an (unmanned) cargo resupply flight to the International Space Station. Dragon, the SpaceX capsule used for the cargo supply flights, will eventually be fitted out for human flight. Meanwhile, our once proud astronauts have to hitch rides to lower Earth orbit on Russia's venerable Soyouz capsule from the Baikonur Cosmodrome in Kazakhstan.

NASA's list of planned 2013 launches shows SpaceX scheduled to make two more unmanned flights to the International Space Station (on March 1 and September 30). A competitor for the freight hauling business, Orbital Sciences Corporation, has two test flights of its Anteres launch vehicle planned this year; the second one, in April, is supposed to rendezvous with the International Space Station (but it's scheduled to burn up on the way back.

And what about the Sierra Nevada (SNC) and Boeing vehicles?

The SNC Dream Catcher is supposed to look
like this on its way to Earth orbit.

Well, they're not on the schedule for this year... but the SNC Dream Chaser is scheduled for more 'drop tests' (one was conducted this past May). Boeing's CST-100 has successfully tested its system of parachute deployment. In August, NASA reported that the Boeing vehicle had completed its first performance milestone.

John F. Kennedy's vision propelled America to do a lot in a decade. But he's gone 50 years this year; the last man left the Moon 40 years ago last month.

He's still our favorite clown

In case you missed it, I submit for your reading pleasure this evening, Mr. Robert Feder's December 11 tribute to Bob Bell, "Why Chicago will always love the man who brought Bozo to life." The many comments are also worth your time.

Earlier this year, I had the privilege of accompanying Edward Austin to the WGN-TV newsroom for his interview on Paul Lisnek's CLTV show, Politics Tonight. To get to the newsroom, I had to go right past Studio One, where the Bozo show was broadcast. The doors were partially open -- and the Bozo sets are still in there. I was instantly a little kid again, part of the 'cast of thousands' for one day only, thrilled to be picked for a tug-of-war (my team lost). I must have mumbled my name, though, because Ringmaster Ned called me "Jeff."

Like every other kid of a certain age, when I was in grammar school, I raced home every day for lunch to watch Bozo -- but I hardly ever got to see the end; I had to be back at school before 1:00 p.m.

The Joy of Spam?

Comment moderation is in effect on this page and on page one of this blog. That means I look at any comments submitted before deciding whether to post them. Most of the comments I've published on judicial posts have been thoughtful or at least civil. But I've also let some pretty mean comments through over the years, not because I agree with them, but because, for better or worse, they too are reflective of the state of political discourse in this country. Every now and then, though, I have to 'flush' a comment that is totally inappropriate. Thankfully, these are relatively rare.

A more common problem, especially of late, has been a deluge of spam comments. The number of spam comments varies; some days there may not be any, but there are days when I log on and find well over 100 "comments" in queue, all asking to get published.

Some of these contain embedded links to porno sites, but the majority of the ones left here of late have carried links for other merchandise -- Ugg boots, Timberland Boots, Louis Vuitton handbags, NFL jerseys. (Just between us, I have my doubts about the authenticity of the designer goods hawked by these spammers.) There are spam comments with links for generic Viagra and other medications. I've seen some for pipes and cigarettes too. Most of these are just 'commercial' comments are just link chains; sometimes they come embedded in nonsensical text.

Sometimes the spam comments seem topical. Remember a couple of weeks ago when none of us won the $550 million Powerball drawing? I found this comment waiting for me one morning during that time:

• Imagine what if there was found guide which teach win a lottery 98% of time. See this website if you wish to win lottery almost every time you play....

Why, though, did the spammer think it a good idea to try and put this comment on a 2008 post?

There are also a lot of spam comments with links for other websites, often for "loans," but sometimes for law firms. Beware what you get when you buy 'visibility' on the web: What benefit would 'drunk driving lawyers in Tampa' or 'personal injury lawyers in Topeka' hope to get from leaving comments on a Chicago lawyer's site? Even if those comments were in standard English -- and they are not.

Cases in point:

• I аm final, I am sorry, I too woulԁ like to еxpress the оpіnion. Here is my homepage....
• It's truly very complex in this active life to listen news on Television, so I only use internet for that reason, and take the latest news. Look at my web site....
• If ѕοme one desires expert view conceгnіng blogging after that i advise him/her to gο to see this weblοg, Kеep up the good work. Also visit my homepage....
• I do not concur with the text. But one has an opinion. Tranquil, this is the internet and then everybody has the right to a note whatever he thinks and wants. And in community this plot is acutely good. I choice stumble upon here all the time....
• Howdy. I am not steadfast if I coincide win the previous arguments. I entertain a migraine.

(I'm not mentioning any sites by name in this post, but this last one was plugging a pain relief medicine.)

One spanner tried a very friendly approach:

• Hi there Deaг, are you гeally visiting this websіte rеgularly, if so after that you will ԁefіnitelу obtaіn good knowledge. Here is my blog....

This spammer tried reverse psychology:

• Do you have a spam problem on this blog; I also am a blogger, and I was wondering your situation; many of us have developed some nice practices and we are looking to trade techniques with other folks, be sure to shoot me an email if interested. Check out my web-site....

Some of the spam posts can be quite flattering:

• Its like you read my mind! You seem to know a lot about this, like you wrote the book in it or something. I think that you can do with some pics to drive the message home a bit, but instead of that, this is magnificent blog. A fantastic read. I will certainly be back. Also see my web site....
• Just desire to say your article is as astonishing. The clearness in your post is simply cool and i could assume you are an expert on this subject. Well with your permission allow me to grab your RSS feed to keep updated with forthcoming post. Thanks a million and please keep up the gratifying work. My web site....
• I have been surfing online more than three hours nowadays, yet I never discovered any attention-grabbing article like yours. It is pretty value enough for me. Personally, if all site owners and bloggers made excellent content as you probably did, the internet will probably be much more helpful than ever before. Also see my site....

These would have been even more flattering if the spammers hadn't attempted to put these on posts that were merely notices about a candidate's fundraiser or a reposted North Town News Magazine video.

When an obviously spam comment is both flattering and proposed for a substantive post, I admit I have been tempted to let the comments through:

• Very nіce post. I just stumbleԁ upon your blog and ωіshed to mentіon that I've truly loved surfing around your weblog posts. After all I'll be subscгibing in yоur feed and Ӏ am hoping you ωrite аgain soon! my page....
• This is ѵeгy interеstіng, Υou aгe a very ѕκilled blogger. I have joined your rss feеd and look forwаrd to seeκing more of your grеat post. Alѕo, I hаve shared your web site in my social netωorκs! Here is my web site....
• I do not even know how I ended up here, but I thought this post was good. I do not know who you are but definitely you're going to a famous blogger if you are not already ;) Cheers! Also visit my blog....

Almost.

My suggestions to the BBWA voters

Earlier this week, the Baseball Hall of Fame released its list of candidates for induction in 2013. The complete list is reproduced below.  For any members of the Baseball Writers Association of America who happen by, I have highlighted my recommendations that I suggest for inclusion on your ballots (in addition to whoever else you were considering):

Candidate	MLB seasons	Yrs on BBWAA ballot
Sandy Alomar Jr.	1988-2007	1st
Jeff Bagwell	1991-2005	3rd
Craig Biggio	1988-2007	1st
Barry Bonds	1986-2007	1st
Jeff Cirillo	1994-2007	1st
Royce Clayton	1991-2007	1st
Roger Clemens	1984-2007	1st
Jeff Conine	1990, 1992-2007	1st
Steve Finley	1989-2007	1st
Julio Franco	1982-94, 1996-97, 1999, 2001-07	1st
Shawn Green	1993-2007	1st
Roberto Hernandez	1991-2007	1st
Ryan Klesko	1992-2007	1st
Kenny Lofton	1991-2007	1st
Edgar Martinez	1987-2004	4th
Don Mattingly	1982-95	13th
Fred McGriff	1986-2004	4th
Mark McGwire	1986-2001	7th
Jose Mesa	1987, 1990-2007	1st
Jack Morris	1977-94	14th
Dale Murphy	1976-93	15th
Rafael Palmeiro	1986-2005	3rd
Mike Piazza	1992-2007	1st
Tim Raines	1979-2002	6th
Reggie Sanders	1991-2007	1st
Curt Schilling	1988-2007	1st
Aaron Sele	1993-2007	1st
Lee Smith	1980-97	11th
Sammy Sosa	1988-2005, 2007	1st
Mike Stanton	1989-2007	1st
Alan Trammell	1977-96	12th
Larry Walker	1989-2005	3rd
Todd Walker	1996-2007	1st
David Wells	1987-2007	1st
Rondell White	1996-2007	1st
Bernie Williams	1991-2006	2nd
Woody Williams	1993-2007	1st

Yes, oh Guardians of Baseball's Valhalla, each of my highlighted suggestions has been accused of steroid use. There was apparently a heck of a lot of steroid use going on in the major leagues not so many years ago -- and everyone with a brain knew it.

Sammy Sosa was a fast, skinny kid when he was with the White Sox early in his career. But it was a jumbo-sized Sammy Sosa that helped revive the nation's interest in baseball after the 1994 strike when he dueled with Mark McGwire for the home run title. Everyone -- including you baseball writers -- chuckled when Sammy attributed his new massive bulk to "Flintstones vitamins." A famous Nike commercial showed Heather Locklear ignoring Tom Glavine and Greg Maddux in favor of Mark McGwire because "chicks dig the long ball."



How in tarnation can you turn all self-righteous now? You knew they were using then; you didn't protest.

No, I don't condone steroid use. I fully support MLB's belated efforts to clean up the game. But these were the dominant players of their era. If you want to include on their plaques that they were dirty, stinking steroid users who endangered their own health (and, much worse, encouraged impressionable young athletes to try PED's for themselves), go ahead -- particularly if you baseball writers admit your complicity in these crimes. But those plaques belong in the Hall of Fame.

Bag the raking; try mulching instead

On what may be the last warm weekend before May, we've been forced to give some thought to disposing of all those leaves that have piled up outside.

In the old days, when I was a boy, this was easy: We'd rake the leaves up and burn them. I loved the smell of burning leaves. In recent years, I've had occasion to be driving along the Interstate on fall days, only to have the smell of burning leaves from a nearby farm pull me back nearly 50 years to the alley behind my parents' South Side home. Farmers can still perform this autumn ritual, but a whole urban and suburban generation has grown to adulthood since most homeowners could last legally burn the leaves they raked.

From an environmental standpoint, raking and bagging the leaves seems like a lousy idea. What's the point of sending the leaves to rot in a landfill?

The most enviro-friendly approach might be to leave the leaves in situ, trusting to natural wind power to disperse them. What the wind does not take away, the snow will eventually cover.

But there are drawbacks to this approach. For one thing, when the wind takes your leaves and piles them on the neighbors' lawns, your standing in the community will be hurt. Your tires may also get slashed.

For another thing, the same gentle zephyrs that deposit your leaves on Neighbor Smith's lawn will bring replacements from up the street. You may gain more than you lose. That rather defeats the purpose.

And after the winds subside, if the leaves left that remain are too thickly distributed, when the snow comes, the leaves may become so heavily matted that anything beneath them, grass and weeds alike, will be smothered.

Our family's search for an environmentally responsible alternative to raking and bagging has led us to try mulching. To the untrained observer, it might look like we're cutting the grass. Our grass needs cutting like a bald man needs a haircut. On the other hand, running the lawnmower over the leaves on the grass mulches them into little leaf-ettes, small enough that they can rot in place while still allowing air and sunlight to reach the soil below. The rotting leaf fragments supply nutrients to the soil like a free jolt of fertilizer. This guarantees that next year's crop of weeds will come back green and strong and healthy.

The grass somehow always seems to die.

Archiving November 2012 campaign links

I'm archiving the campaign website links of the candidates in the few contested Cook Cook County Circuit Court races here:

• Christine Cook
• Harry J. Fournier
• Terry Gallagher
• Edward M. Maloney
• James Paul Pieczonka
• Andrea Schleifer

Most, if not all, of these links will be inactive soon, if they aren't already. Still, the addresses are preserved in case they may have some use for others in the future.

Judges Jacobius and Palmer appear on NTNM

Judge Moshe Jacobius, the Presiding Judge of the Chancery Division of the Circuit Court of Cook County, and Judge Stuart E. Palmer, a Circuit Court Judge currently serving on the Illinois Appellate Court pursuant to appointment, are guests on this week's edition of North Town News Magazine. With the permission of host and moderator Avy Meyers, that interview is posted here as well.

Judges Jacobius and Palmer and over 50 of their brother and sister judges are asking voters to retain them in office on this year's November retention ballot.

For more information about the retention ballot, consult any of the following links:

• Comparing bar evaluations on certain retention candidates;
• Chicago Bar Association finds more than 50 judges qualified for retention;
• Nine judges singled out as "Well Qualified" for retention by Chicago Council of Lawyers;
• Chicago Council of Lawyers releases 2012 judicial retention ratings;
• ISBA provides explanations for all of its Cook County judicial ratings;
• Alliance of Bar Associations releases retention grids;
• Retention Judges: The default vote is 'yes';
• Tribune urges "no" vote on six retention judges;
• Can any of the retention judges really lose?;
• A few words about "judicial temperament"; or
• 2012 Cook County Retention Judges Website.

Philadelphia judicial ethics complaint shows value of local bar association investigations

ABA Journal Law News Now reported last week about the troubles brewing in Philadelphia for a local judge accused of making misrepresentations on candidate questionnaires.

The October 25 Law News Now post, by Debra Cassens Weiss, links to the Pennsylvania Judicial Conduct Board Complaint against Judge Thomas M. Nocella. Apparently, in Pennsylvania, candidates for judicial office are required to respond to questionnaires which, inter alia, inquire into the prospective judges' finances and litigation histories. These questionnaires are used to determine whether a candidate receives a "qualified" or "not qualified" rating.

Judge Nocella made some disclosure of financial difficulties and past lawsuits and, at one point, was rated unqualified as a result. He successfully appealed the initial unfavorable rating -- but it appears that the Judicial Conduct Board is contending that, at best, Nocella minimized the extent of his difficulties. According to Weiss's post, Judge Nocella stands accused of failing to disclose "two Internal Revenue Service liens against him for more than $469,000, a personal bankruptcy filing, a contempt finding for disobeying court orders stemming from his representation of a political action committee, and 24 cases in which he was a defendant or a respondent." The failure to make complete and accurate disclosures on the questionnaire can result in disciplinary action in Pennsylvania.

A similar situation may be unlikely to occur in Cook County. Yes, judges and prospective judges get into financial difficulties from time to time in Cook County, just as anyone anywhere might. But, in Cook County, when a judicial candidate steps forward or a judge seeks retention, the bar associations investigate the responses that judicial hopefuls provide. Edward Austin, a former Chair of the Judicial Evaluation Committee of the Chicago Bar Association, explained, "The cornerstone to the CBA evaluation process is the investigation. Our investigators work tirelessly to not only contact listed references but also references not listed by the Candidates. Additionally, a Google search, Cook County Circuit Court Clerk name check for pending or past litigation and an ARDC search are conducted to uncover any and all information pertinent to someone seeking a judicial post. There have been many instances in the past where candidates have not included or omitted information on their questionnaire that was subsequently found during the investigation process. The omissions have included lawsuits, ARDC complaints, and bankruptcy filings."

While he agreed that record searches would likely pull up some discrepancies in a less-than-candid candidate's disclosures, Michael A. Strom, the President of the Decalogue Society of Lawyers, a member of the Alliance of Bar Associations for Judicial Screening, was uncertain that all of a candidate's financial problems could be ferreted out, even with a vigorous investigation. "I could easily see practitioners in the Chicago area having problems totally unrelated to their area of concentration, and unknown to their colleagues," Strom said. "For example, I know many veteran personal-injury and insurance defense practitioners from years of practice in that field. When bar association judicial screeners call to ask about a candidate, it is extremely unlikely that I would know about any tax problems or IRS liens. Multiply that one interview by 20 and throw in interviews of judges before whom the candidate has practiced, and it would not be surprising to see personal debt, bankruptcy, domestic relations issues, and other issues remaining unknown to the attorneys who would best know the candidate."

Large urban areas and their correspondingly large judicial systems "tend to make individual judges less public figures, less well-known to the bar and to voters who may be called to vote on judicial elections or retention," Strom said. "We often hear how judicial elections in rural or lightly populated regions are [more] effective since people in those communities have a greater tendency to know their neighbors, their community leaders - not just professionally but personally," Strom added. "Accordingly, attorneys in Calhoun County would be much more likely to know about the sort of issues covered in the ethics complaint concerning Judge Nocella whether [or not] the disclosures were made in application forms."

Al Durkin is the Co-Chair of the Illinois State Bar Asssociation's Judicial Evaluation Committee and a member of the Alliance board. "Judicial candidates in Cook County are very concerned when they come before the Alliance," Durkin said. "Candidates do their best to provide information in order to allow the member bars to make as informed a decision as possible."

Every candidate is specifically asked if he or she is or has been a party in any litigation, Durkin said, adding that a negative answer to this question would probably be "a death knell" to the candidate's chances for a favorable evaluation if investigation revealed that the candidate attempted to conceal involvement in a number of legal matters.

Ed Austin stressed that candidates who seem to have provided incomplete information are given an opportunity, under the CBA's practice, to explain themselves. In such cases, Austin said, candidates "are notified of our discovery prior to a hearing pursuant to Rule 22 and the issue is addressed at the hearing if they seek to continue with the evaluation." Durkin said the Alliance follows a similar procedure. "In fairness," Durkin said, "there might be a situation where a candidate did not know" -- a code violation suit involving a building managed by the candidate's spouse, for example. The Alliance hearing can also be postponed "to give the candidate time to put together a response," Durkin said.

Austin noted that favorable rating from the CBA can be pulled if information previously concealed comes to light. The CBA Board of Managers and the Executive Committee can "withdraw a past finding if new information is brought to light that was not disclosed during the original evaluation." Alliance members have also changed ratings in the past.

"Non-disclosure is taken very seriously" by all judicial evaluation committees in Cook County, Austin said, "and, as is often the case, the cover up is worse than the crime."

The Pennsylvania practice appears to rely on candidate self-disclosure -- and one would certainly hope (and expect) that persons seeking judicial office would be honest and truthful. Our Cook County judicial screening process also depends on self-disclosure. But in our practice, as Ronald Reagan said to Mikhail Gorbachev, we trust, but verify.

State court efiling is nearly upon us. Let's have two cheers for efiling. Maybe one-and-a-half.

I find myself unable to work up a great deal of enthusiasm about the Illinois Supreme Court's announcement yesterday that brings us one step closer to efiling in all Illinois counties.

Chief Justice Kilbride says Illinois "is behind on using e-business and e-filing in its courts" and I won't argue the point.

My experience in federal cases reassures me that efiling has some advantages, chief among them the ability to file and serve a motion or brief by pressing a button. That is a distinct advantage for solo practitioners -- and I am one -- who otherwise have to endure 'down time' copying, assembling, sending, and filing documents.

But I have never used efiling in a Cook County case -- Cook County had a pilot efiling program predating yesterday's Supreme Court announcement -- and I hope I won't now be forced into using it anytime soon. Not when it costs $4.95 to file a document and the payment of any filing fee automatically incurs another 4% surcharge.

In the Federal system PACER seems to function well enough without massive per document surcharges. If we must go down this road -- and I fear we must -- why not go toward a PACER model?

But my tepid response to yesterday's announcement is not motivated solely by personal parsimony.

But I keep reading -- online and on paper -- that studies continue to show that people don't read things on screens the same way as they read paper. A quick Google search this morning (because that's how things are done now, right?) pulled up these interesting articles (none of which I'd seen before) on the topic: "Do E-Books Make It Harder to Remember What You Just Read?", by Maia Szalavitz, posted on Time Health & Family, March 14, 2012; Does the Brain Like E-Books?, New York Times, October 14, 2009; "Our 'Deep Reading' Brain: Its Digital Evolution Poses Questions", by Maryanne Wolf on Niemann Reports, Summer 2010.

I would sum up my reading (today and previously) this way: Most of us -- even those of us who live increasingly online -- feel, on some level, that screens are for ephemera -- LOL cats and water-skiing squirrels, bad jokes, inconsequential emails and, yes, blog posts. Serious stuff needs to be on paper. At least, a lot of us read paper more carefully and more critically.

Now, of course, those of us who feel this way may be a dying breed -- or, more optimistically, perhaps we can look forward to working through a transition period from which we will ultimately emerge able to read screens with the same intensity and care as we now read paper.

Great.

And in the meantime, our most carefully thought-out work product, the briefs and motions that we lawyers prepare, will be reduced to pixels on a screen, to be read by a judge who may or may not have mastered this hoped-for digital transformation.

Can this really be good for us lawyers... or for our clients?

Also, I could not help but note the restrictions on discovery filings. In Cook County, a lot of us still file our discovery responses with the court -- it saves arguments down the road about who served what when. That may no longer be possible under any standardized efiling regime. Yes, it works in Federal court, but in Federal court one denies receiving documents that he or she has in fact received at some substantial peril.

I said I would not argue that our courts are behind in matters of e-business and e-filing. But I am tempted to believe that this is not necessarily bad.

The questionable value of precedent in politics

From the web comic xkcd, by Randall Munroe

Before 1936, Maine was perceived by the chattering class as the ultimate bellwether state: "As Maine goes, so goes the nation."

After 1936, the saying had to be amended: "As Maine goes, so goes Vermont." Although Maine had voted Republican in 1936, Alf Landon did not defeat FDR. Landon carried only Maine and Vermont in the general election.

Mr. Munroe's many other examples here are worth considering as one considers the grave (and contradictory) prognostications of political columnists and TV talking heads.

1984 was a warning, not an instruction manual

Zay N. Smith will henceforth be providing QT at the Beachwood Reporter. From his first column on the new site:

News Headline: "Video surveillance cameras everywhere in our lives."

News Headline: "Congress OKs drones over U.S. cities."

News Headline: "Texas schools punish students who refused to be tracked by microchips."

Do we need to review the notion that 1984 was a warning and not an instruction manual?

You can't believe everything on the Internet... or on TV... or in the newspaper, for that matter. Now what?

State Farm has an amusing commercial in heavy rotation these days poking fun at its Internet-dependent competitors -- and making the more general point that not everything you see online is credible.

Yeah, who'd have guessed, right?

But TV news is no better. Watch two TV stations tonight and you'll see different stories covered or, frequently, the same story covered with two different spins. Sometimes the differences are subtle. Other times, though....

I've often heard it said that the closer one is to a news story, the more errors one finds in the news coverage. Many lawyers have had the experience of becoming involved in a case only to see news coverage that, in the lawyer's opinion, completely distorts the facts of the case. (The converse of this rule is also true: The further away one is from a story, the easier it is to believe the news coverage. This is why presidential candidates know all about how to solve problems in Iran, Afghanistan or Guantanamo -- and why presidents often find the same problems extraordinarily difficult. This principle is also an extension of the more general one, "where you stand depends on where you sit.")

In these days of YouTube and Hulu and iTunes it is often possible to diagnose the "spin" that this reporter or that columnist or blogger puts on a speech or news conference. If a person could only take the time to investigate the original sources on any interesting event, he or she could reach a truly informed opinion. He or she would also be unable to hold a job... or sleep much.

The temptation is to think that this sort of news 'spinning' is new.

It is not.

Some of the terms are new, but news reporting has never been an exact science. Here is a case in point.

I found these clippings among my late father's effects. His mother had saved these when her husband died -- in March 1946. I can't tell you which newspapers these clippings are from. Only these scraps were saved.

But look at the discrepancies in these three accounts of the same event. In reporting my grandfather's death, my grandfather's brother is named Daniel Lyons; in another, Daniel Leyhane; in the third, Daniel is given no last name at all. Actually, Daniel's surname was Lyons and my grandfather was really named Leyhane -- and, no, they weren't half-siblings, the family name was changed by my grandfather's parents at some point, perhaps -- so family legend has it -- to enhance another of my great-uncle's chances to enter the Seminary). My grandfather's age varies from story to story. His age is given variously as 42, 48 or 51. My father's age is mentioned only in one story. There, his age is given as 18; actually, he was then 20.

It's just a little story, a sad reminder of the risks that firefighters take, but really important only to the families involved. There was no interpretation needed here, no 'spin,' just objective facts that could have been ascertained. And weren't. Not quite.

Just something to think about as you watch the news or read a newspaper.

---------------------------------------------------------------------------------

See also, Chicago Fire Department Line of Duty Deaths.

Wishful thinking?

(From Zach Weiner's webcomic, Saturday Morning Breakfast Cereal)

¡Ojalá! If only it were so.

And, speaking of comics, did this morning's Chicago Sun-Times carry yesterday's comics -- or am I stuck in some sort of temporal loop?

Remember 9/11... and 9/25?

Zay N. Smith strikes a very appropriate note in yesterday's QT:

News Headline: "Remembering 9/11—Let us never forget."
And here is something we should do after we remember 9/11:
We should remember 9/25.
It was on that day, in Los Angeles, two weeks after the attack, that a German surgeon in a Jewish hospital performed a kidney transplant from a white Muslim woman to a black Christian man.
It was routine surgery.
Remember 9/25, too.

Cartoon brief does not carry the day but fires the imagination

Attorney Bob Kohn wanted to file a 55 page amicus brief in the case of USA v. Apple, Inc., in the Southern District of New York. He was opposed to the government's proposed antitrust settlement with three publishers of e-books. U.S. District Court Judge Denise Cote limited him to five.

Mr. Kohn came up with a creative way of making his point in those five pages; he made his point in comic book form. (Debra Cassens Weiss provides additional background in a post on ABA Journal Law News Now.)

While Lowering the Bar may go too far in suggesting that All Briefs Should Now Be in Comic Book Form, I suspect this brief brief may inspire some imitators.*

Here are the actual cartoon pages (click to enlarge any page; if this proves insufficient, the entire brief, with appropriate table of authorities, may be found can be accessed by clicking here):

--------------------------------------------------------------------
* Note to would-be imitators: According to the ABA site, Judge Cote rejected Mr. Kohn's arguments and approved the proposed settlement. My thanks to Lynn Dowd for sending me the brief.

Don't put a kid in charge of your professional image

Someone named Brad Friedman posted a link to this article on LinkedIn's Legal Blogging Group.

The article, "11 Reasons a 23-Year-Old Shouldn't Run Your Social Media," by Hollis Thomases, appeared August 10 on Inc.Com. An excerpt:

Just because you don't understand social media doesn't mean you should forfeit all common sense and hire your niece, nephew, or any other recent college grad (say, your best friend's sister-in-law's kid) because "they're really good on Facebook."

If your business targets the young and hip, most definitely look to a recent grad or young social-media nerd to help your business. But don't assume, either, that you need to hire someone young to manage your social media "just because."

Thomases goes on to detail all 11 reasons, and they're all good -- but to Ms. Thomases' list I would add one more: Don't let someone launch a social media strategy for you unless you can understand both what the strategist is trying to accomplish and how the strategist proposes to accomplish those goals.

If you can't understand what the heck your social media maven is doing or how he or she is doing it, it might be because you are old and dense and simply no longer 'with it.' Or it might be that your social media wunderkind works only with smoke and mirrors:

From Randall Munroe's webcomic, xkcd
(click on the link to see the cartoon in situ -- and
to read Mr. Munroe's embedded comment)

At depositions lawyers typically ask a number of background questions of a witness. Sometimes these questions are necessary in case the lawyer needs to locate the witness later on for trial, but most lawyers go beyond 'name, rank, and serial number' when starting a witness deposition.

What the lawyer is doing is getting a 'feel' for how the witness answers uncontroversial questions -- how the witness speaks normally and without stress. This preliminary testimony provides a baseline for comparison. Does the witness talk easily and expansively on softball, background questions -- and in clipped monosyllables when the 'meat' of the deposition is reached? Those differences in tone and inflection and speech pattern tell the lawyers something about the credibility of this witness or, at least, the likelihood that the witness will come over well before a jury.

I had a deposition recently of a young man who was employed by some advertising concern in some social media capacity. He had no difficulty expanding on his explanations about his job and his duties -- but every expansion made his testimony more opaque than it was before. None of this mattered to the case and I had to move on -- but, if I was interviewing this same man to market my firm, I would be profoundly concerned by his inability to tell me what he does and how.

If your strategist can't explain to your satisfaction what he or she proposes to do and how he or she will do it, can you really hope that this same strategist can adequately explain your business to potential clients?