Tuesday, October 30, 2012

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.

Thursday, October 25, 2012

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.


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.

Wednesday, October 17, 2012

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.

Thursday, October 11, 2012

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?

Sunday, October 7, 2012

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.