Sunday, December 29, 2013

Judicial blogger appears on NTNM



The final round of BCS bowl games will get nearly all the viewers this week, but North Town News Magazine gamely counterprograms with a program including this interview of a cranky old lawyer and judicial blogger.

My thanks to NTNM host and moderator Avy Meyers and his entire technical crew Sonny Hersh for allowing me to repost this interview. You could, in theory, watch this interview when the show is broadcast in its entirety on CAN TV 19 in Chicago on Thursday, January 2 at 7:30 p.m. (that's when Alabama and Oklahoma are scheduled to kickoff in the Sugar Bowl) or Friday, January 3 at 2:30 p.m. This NTNM program will also air in Evanston on Thursday at 5:00 p.m. and Sunday at 10:30 p.m. and on a number of suburban cable systems on Monday, January 6.

Wednesday, December 18, 2013

Two stories on ABA Journal Law News Now illustrate the ongoing split in the legal profession

A story caught my eye on ABA Journal Law News Now as I sat at the computer in my den, checking my email and messages from what amounts to my 'home office.' The headline on the post by Debra Cassens Weiss was "Work-at-home lawyer suspended partly for lack of a 'bona fide office'." (I'm home, for the moment, because I have to go to Wisconsin this morning to pick up my youngest son from college.)

I clicked over to read the sad story of Delaware practitioner Fred Barakat, a Pennsylvania resident who had a Wilmington office address in a suite that sounds something like the kind of set-up advertised by Regus (or any of the other 'virtual office' providers) for Chicago lawyers. Having a 'virtual office' is still legal in Illinois -- even where one's attendance at is (like Barakat's) "sporadic and unscheduled" -- but Delaware Supr.Ct. R. 12 requires lawyers to have a "'bona fide' office." A Delaware lawyer complies with this rule by being in the office for "a substantial and scheduled portion of time during ordinary business hours in the traditional work week." A temporary absence (as for a trial, say) does not violate the rule, but the office must be equipped with the "customary facilities for engaging in the practice of law" and must be "more than a mail drop, a summer home which is unattended during a substantial portion of the year or an answering, telephone forwarding, secretarial or similar service."

(What are the customary facilities for the practice of law anyway? A yellow pad or two, some pens, a computer, some law books? My den qualifies on these counts. Abraham Lincoln used to say that his stovepipe hat was his office. Of course, ol' Abe never tried to practice law in Delaware.)

At any event, despite the headline, Mr. Barakat's suspension was not caused solely by his attempt to cut overhead by working from home as much as possible. See, In re Barakat, --- A.2d ---, No. 397, 2013 (Del.Sup.Ct. 12/11/13). Still, a substantial portion of the Delaware court's opinion is devoted to Barakat's office arrangements.

The default sidebar on the ABA Journal Law News Now is a list of the stories most read on the site. My wandering eye noticed this headline there, "More Top Lawyers Break Through $1,000 Hourly Billing Barrier." It turns out that this was actually a 2011 story, also written by Debra Cassens Weiss.

Mr. Barakat, trying to work from home to save the cost of renting an office, and these $1,000 an hour superstars are all allegedly members of the same learned profession.

It's increasingly hard to believe.

Monday, December 16, 2013

Iowa lawyer disciplined after getting caught up in Nigerian inheritance scam

Somehow this old cartoon from the webcomic
Married to the Sea seemed very appropriate here

By now you may have heard about Robert Allan Wright, Jr., the Iowa lawyer who was disciplined December 6 by the Supreme Court of Iowa after getting involved in a Nigerian inheritance scheme. (Iowa Supreme Court Disciplinary Board v. Wright, 2013 Iowa Sup. LEXIS 123 -- this link will get you to the court's opinion, but only until Groundhog's Day).

Wright did not respond to a spam email from the widow of a hitherto unknown "Nigerian general;" he had a flesh and blood client sitting in his office who claimed he'd come into an enormous inheritance from a long lost cousin.

Granted, Wright was representing the client, a man named Madison, in a criminal matter. And, yes, Madison's allegedly dead cousin was in Nigeria. But all Madison had to do, he told Wright, was pay $177,660 in inheritance taxes due and owing; that, and procure an "anti-terrorism certificate," and the very next thing you know, he would come into $18.8 million. For his part in facilitating the transfer, Wright would be paid 10% of the amount recovered.

Apparently it never occurred to Mr. Wright to suggest that the amount of "tax" due be simply deducted from the payout. If it did occur to him, the scammers persuaded him that things could not be done that way.

The Iowa Supreme Court made it clear that Wright was not being disciplined for his mere credulity (slip op. at 9):
Wright is not the first Iowa lawyer who has become entangled in a deception with ostensible Nigerian connections. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Jones, 606 N.W.2d 5, 9 (Iowa 2000) (noting the incidence of fraudulent transactions with purported connections to the country of Nigeria). Lawyers in other jurisdictions have also been entangled and deceived in such schemes in recent years. See, e.g., In re Maxwell, 334 B.R. 736, 738–41 (Bankr. M.D. Fla. 2005); Parker v. Williams, 977 So. 2d 476, 477–78 (Ala. 2007); Lappostato v. Terk, 71 A.3d 552, 559–60 (Conn. App. Ct. 2013); In re Reinstatement of Jones, 203 P.3d 909, 912–13 (Okla. 2009); see also Lucas v. BankAtlantic, 944 So. 2d 1031, 1032 (Fla. Dist. Ct. App. 2006) (describing a deception originating in Africa).
Instead, where Wright went wrong was in helping Madison to raise money for the "tax" by borrowing money from other clients, sucking them into the scheme. Essentially, he violated rules requiring competence in client representation by failing to see through the inheritance scam, he failed to disclose his pecuniary interest in the scheme to the clients from whom he solicited loans, and he failed to protect the interests of his clients from whom loans were solicited. (Slip op. at 9-13.)

But Wright did not intend to defraud anyone. The Disciplinary Board acknowledged that Wright "clearly believed in the legitimacy of Madison's inheritance." Even as the disciplinary proceedings exposed the folly of his hopes, Wright kept right on believing that "one day a trunk full of . . . one hundred dollar bills is going to appear upon his office doorstep," according to the Disciplinary Board. Wright's conduct might be delusional, the Board asserted, but not fraudulent. (Slip op. at 8-9.) Nevertheless, because of his ethical lapses, Wright will be suspended from the practice of law in Iowa for at least a year.

It's easy to pile on the unfortunate Mr. Wright: All of us receive dubious inheritance proposals and spurious contract claims on a daily basis. We don't fall for them. I've got three new ones in my spam just this morning -- one from someone who is "in the military unit here in Afghanistan" who wants a partner she and her partners can trust to move "some amount of funds" out of the country. It's all legal, my correspondent assures me. A Mr. Buba has $20 million that he wants to move from his country -- he doesn't say which country -- but he'll give me 40% just for arranging the transfer. And Barrister Joshua Yohana from Burkina Faso wants me to help him move $30,400,000 left behind in his country by the late Libyan dictator Muammar al-Gaddafi. The surprising aspect of this morning's spam is that there are no Chinese businessmen who have sure-fire, eight-figure collection cases I can handle for them; I've had a lot of those lately, too.

But... what else is in my email today? The National Law Journal sends me updates morning and evening about superstar lawyers concluding mega-deals. My Twitter feed regularly carries more locally-tinged, but similar, stories from Crain's Chicago Business. And the Chicago Daily Law Bulletin sends me an email every evening where I learn about the latest triumphs of my brothers or sisters in the local bar, many of whom I know.

I wonder if Mr. Wright had a similar experience: He may have seen that there are big cases out there, big deals, enormous paydays for his Iowa brothers and sisters in the law.

But there are only a few rock stars in the law; most of the rest of us are flailing away in garage bands. For every Beatles-like success story, how many thousands of other lawyers remain Quarreymen all their professional lives?

The discrepancies between the top and the bottom of the legal profession are wide, and widening daily. Judges may chafe at the rising tide of pro se litigants in our courts, but many lawyers -- good, competent lawyers who, at one time, would have been engaged by those persons now proceeding pro se -- are drowning beneath that tide.

Litigation has been priced beyond the reach of many prospective clients -- but it is not only they who have suffered as a result.

So, this morning, I can't pile on poor Mr. Wright. I can't condone what he did... but I can understand, perhaps, why he grabbed onto that thin tale of big money with both hands, and kept holding on.

Wednesday, November 13, 2013

"Short and to the point" is all well and good -- up to a point

Checking my email this morning from the Blue Line train, I saw an ad for CLE presentations planned for the upcoming ISBA/IJA Joint Meeting. One was designed to help attorneys tighten up their writing skills. A snippet from the ad:
Gone are the long, flowing email messages with pretty graphics and lots of attachments. Today’s communication – almost 100% electronic – is immediate, brief, clear, and powerful. Designed to boost your instant (or near-instant) message drafting skills, this program examines the ways in which lawyers' traditional training in writing and communication ill-prepares them for this new age of "short and to the point."
I certainly understand the need for lawyers to tighten up their prose. One of the many reasons I resisted Twitter for so long was that I didn't think a lawyer can say good morning in fewer than 140 characters. (I'm working on it.)

One of my favorite bloggers, Ken Levine, wrote this useful 2010 piece on the perils of overwriting. Mr. Levine was talking about writing TV scripts, not legal briefs, but his advice applies equally well to legal writing: Trim. Edit. Lose page 8 (OK, that one Levine borrowed from Earl Pomerantz).

As you might expect, judges are often the strongest advocates of shorter, tighter legal writing: They have to wade through our verbiage.

I recall one judge years ago, in DuPage, who threw my 12-page brief back at me on the day appointed for hearing. I didn't think the brief overlong; after all, it was comfortably within the standard 15-page limit observed in many Cook County courts. But I didn't realize that DuPage then had a 10-page limit. (Well, Cook County is bigger than DuPage.)

As he gave me back the brief and reset the hearing date, the learned judge admonished me, "I read this. You could have said this in eight pages."

(I probably resisted the urge to ask, since he'd bothered to read it, why we couldn't have our hearing. Probably. My memory is indistinct on this point. If I didn't resist, I apologize nunc pro tunc.)

I recently had the experience of updating an article I'd first done for the CBA Record back in 1996. If it was good enough to be updated, I reasoned, I should probably keep the length about the same.

My reasoning proved faulty: Publication standards had changed in the last 17 years and I was ordered to lose over a thousand words.

It wasn't exactly easy to lose the first 500 of those words -- it took more than two hours and I felt like a butcher -- but the resulting draft was better for the pruning. Of course, I still had another 5-600 words to go. Each successive pass through the article took just as long as the first 500-word chop -- and never yielded more than a 100 word net loss.

There is a point of diminishing returns: The complexity of the ideas conveyed or the persuasiveness of an argument in a brief, a blog post, or article is of necessity diminished when compressed beyond a certain point. Sloganeering on Facebook or flaming tweets may be "immediate, brief, clear, and powerful" -- but entirely useless for persuasion or rational discussion. See, cable TV news programs. See also, Congress. Truly persuasive arguments must be developed, not hurled like a gauntlet; important facts must be explained, not glossed over. Not everything is black or white; lawyers in particular must distinguish shades of gray. Can we do so more efficiently? Certainly -- but shorter usually takes longer.

My late father was a regular CLE presenter in his day. He'd go on a statewide tour every year, alternating, from year to year, between his employer and IICLE. He told me he could give a two-hour talk on five minutes' notice. If someone wanted him to speak for 15 minutes, however, he'd insist on a week to prepare.

I submit that the same is true for legal writing: Without a deadline for the opinion letter or brief and no ceiling on the number of hours that can be devoted to the project, we could all produce shorter and tighter work product. But will clients really appreciate paying double or triple for a tight two-page letter rather than a faster, cheaper five-page essay? (If you think the answer is 'yes,' you have never dealt with clients.)

Granted, it would be wonderful if lawyers could learn to write better and faster. But "instant (or near-instant) message drafting skills" are not always helpful. I'm old enough to remember when the fax machine was cutting-edge technology. Clients could fax in a problem -- and since it reached us in minutes, they expected a response in minutes as well. Email has only exacerbated the problem.

Yes, there may be some questions that lawyers can answer instantly. And it is surely useful to learn tips on how to turn a blank screen (or blank page) into serviceable prose without undue hemming and hawing.

But the reflex answer is not always the right one. "It depends" is not always a dodge. Sometimes, in trying to explain our initial answer, we realize that we are dealing with an exception to the general rule, or perhaps a different rule than we thought applicable in the first place. "Short and to the point" is a valuable objective -- but not so short that the point is watered down or missed entirely.

Thursday, November 7, 2013

I was really wondering how they could carry an open flame into outer space


Not all that surprising answer: They can't quite do that. Open flames are frowned upon in spacecraft. The Olympic Torch, however, is aboard the International Space Station, however, and will soon be carried on a spacewalk.

(Photo accompanying this post is taken from this NASA Tweet.)

Sunday, November 3, 2013

Australian government employee injured while having sex denied worker's compensation benefits

In the news this past week was the titillating tale of an Australian woman, a government employee, injured while having sex. She sought compensation from her employer as a result of her injuries. The case was in the news because, last Wednesday, Australia's High Court, the country's highest judicial tribunal, issued a decision this week reversing lower court orders which had found the injuries compensable under Australia's Safety, Rehabilitation and Compensation Act of 1988 (that nation's worker's compensation statute).

This item was reported by Chicago media outlets with varying degrees of snickering and innuendo, especially by those who read deeply enough into the original press coverage to discover that the injury occurred when either the woman or her companion (no one really knows for sure) pulled a glass light fixture from its mount above the bed, causing it to strike the woman in the face.

As a lawyer (but not a worker's compensation specialist), I couldn't help but wonder if this fact about someone actively pulling the light fixture from the wall was not just a matter of prurient interest but, rather, a critical factor in the Australian court's analysis: In tort law, this might be referred to as an intervening cause.

The way I looked at it, because the woman had to stay overnight at the motel as part of her work assignment, if the fixture had come loose of its own volition and struck the woman while she was sleeping, she probably would have had no problem collecting worker's compensation benefits (in addition to whatever claim she might have against the motel). Then, I speculated, if the fixture came off on its own, it should have made no difference if she'd been sleeping or engaged in some sort of consensual activity. Therefore, I thought, perhaps the fact that the cause of the actual injury was somebody pulling the fixture off the wall -- something not at all work related -- was the reason why the injury was not compensable.

But that's not the way the Australian High Court saw it. The case is Comcare v PVYW, [2013] HCA 41.

The High Court's majority opinion states, at ¶60, "[F]or an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place." The Australian court concluded (¶61) that an injury will be compensable where it "was suffered by an employee whilst engaged in an activity in which the employer had induced or encouraged the employee to engage" or where the "injury was suffered at and by reference to a place where the employer had induced or encouraged the employee to be."

I wondered how an Illinois court might resolve a similar case.

As near as I could tell, there is no factually similar case in Illinois. But, after actually doing a little research, as opposed to merely speculating, it appears an Illinois court looking at similar facts would consider the injured woman a "traveling employee." According to Cox v. Illinois Worker's Compensation Commission, 406 Ill.App.3d 541, 545 (1st Dist 2010), "A 'traveling employee' is one who is required to travel away from his employer's premises in order to perform his job."

Cox explains, "The determination of whether an injury to a traveling employee arose out of and in the course of employment is governed by different rules than are applicable to other employees. * * * As a general rule, a traveling employee is held to be in the course of his employment from the time that he leaves home until he returns. * * * However, a finding that a claimant is a traveling employee does not relieve him from the burden of proving that his injury arose out of and in the course of employment. * * * The test for determining whether an injury to a traveling employee arose out of and in the course of his employment is the reasonableness of the conduct in which he was engaged and whether the conduct might normally be anticipated or foreseen by the employer. * * * Under such an analysis, a traveling employee may be compensated for an injury as long as the injury was sustained while he was engaged in an activity which was both reasonable and foreseeable." (406 Ill.App.3d at 545-6, citations omitted.)

My original notion that the case might turn on a question of intervening cause is pretty well put to rest by Potenzo v. Illinois Workers' Compensation Commission, 378 Ill.App.3d 113 (1st Dist. 2007).

In Potenzo, a driver making deliveries at a Jewel Food Store in Uptown was using a hand control, trying to lower two pallets of goods on a hydraulic-lift platform, "when he felt someone grab his ankle." As he turned to look, "he was hit in the back of the head, and he immediately lost consciousness." (378 Ill.App.3d at 114.)

The employer made what sounds to my non-specialist ears something like a causation argument, taking the position that the driver faced the same risk of getting mugged as anyone else out on the streets of Chicago. The employer argued that the driver "failed to carry his burden of establishing that, when assaulted on February 27, 1995, he was exposed to a greater danger than the general public, and as a consequence, failed to establish that his injuries arose out of his employment." (378 Ill.App.3d at 117.)

But the driver insisted that he was a traveling employee, required to unload trucks in alleys and loading docks at odd hours and, as such, "his employment 'caused him to incur the special risk of contact with street crime and violence' and, as a consequence, he was not required to establish that the risk of being attacked was peculiar to his employment, only that his employment exposed him to the same risk as the general public." (378 Ill.App.3d at 117.)

Under Illinois law, according to the Potenzo court, there are three types of risks to which a worker might be exposed (378 Ill.App.3d at 116):
  1. risks distinctly associated with the employment
  2. risks which are personal to the employee, and
  3. neutral risks which have no particular employment or personal characteristics
The risk that the driver might get unloaded on while attempting to unload was one of these "neutral risks." (378 Ill.App.3d at 117.) And the Potenzo court agreed that the driver could not establish why he was attacked, nor was the Appellate Court inclined to disagree with the Commission's finding that the driver failed to establish that he was working in a high crime area or dangerous neighborhood when he was attacked. (378 Ill.App.3d at 118.)

However, the Potenzo court concluded, "The undisputed evidence in this case establishes that the claimant was a traveling employee whose duties required him to travel the streets and unload a truck in areas accessible to the public. The risk of being assaulted, although one to which the general public is exposed, was a risk to which the claimant, by virtue to his employment, was exposed to a greater degree than the general public. * * * [T]here is no evidence in this case which would support an inference that the attack upon the claimant was based on a purely personal motive. Finally, it is undisputed that, when he was assaulted, the claimant was in the process of unloading his truck, an activity which was reasonably foreseeable by Jewel." (378 Ill.App.3d at 119.) The Appellate Court set aside the Commission's decision and ordered that benefits be awarded to the injured truck driver.

So intervening cause is definitely not an issue, but reasonableness and foreseeability are primary considerations that we might an expect an Illinois court to consider if a case similar to the Australian case arose in Illinois.

Therefore (again, speaking as a non-specialist), I have to suspect that an Illinois court evaluating such a case might find guidance in Howell Tractor & Equipment Co. v. Industrial Commission, 78 Ill. 2d 567 (1980).

In Howell Tractor, the soon-to-be injured employee and a colleague were dispatched to Logansport, Indiana to repair a road resurfacing machine. The duo picked up the spare parts they needed and headed to Logansport. They disassembled the machine, finding and fixing the problem they expected that same afternoon. But, as they were repairing the reported problem they saw that another part was missing from the motor. That, they reasoned, might be contributing to the overheating problem that gave rise to their service call. After consulting with the manufacturer, who suggested they tear down the motor again and made provisional arrangements to ship out a replacement motor if that failed, the Howell employees secured permission from their manager to stay overnight. (78 Ill.2d 570-571.)

They went out for dinner and drinks with the road project foreman. Then, borrowing clothes from the foreman, they drove out to one place, and then a different place, closing the second one. One of the Howell employees went to the bathroom, but when he came back he found that his comrades had left. The employee had never been to Logansport before, and he might have called a cab, but, somehow, he thought it might be a good idea to walk back to the motel. He soon realized he was lost, but then he remembered that there was a railroad crossing near the motel, so when he found some railroad tracks, he decided he just might find the motel if he walked alongside them. This proved to be as bad an idea as it sounds: The employee's arm was snagged by a passing train, and when he wriggled free and fell off, the train ran over his leg. (78 Ill.2d at 571-573.)

The Supreme Court found that the employee in this case was not entitled to benefits. The court explained, "Although the protection afforded a traveling employee by the [Act] * * * is considerably more extensive than that afforded other employees, the purposes of the Act do not require the employer to serve as an insurer for a traveling employee. * * * The burden of establishing compensability rests upon the claimant, and proof that he would not have been at the place where the injury occurred but for his employment is not alone sufficient." (78 Ill.2d at 574, citations omitted.)

Further explaining, the Howell Tractor court stated, "Assuming here that claimant's conduct in borrowing dressier clothes, showering and leaving the motel after 10 p.m. was reasonable and foreseeable, it ceased being so, in our judgment, when claimant decided to part with his companions and return to the motel alone. Although the claimant testified he thought he knew how to reach the motel, he had never been in Logansport before. He, [the foreman and his colleague] had driven a total of 20 minutes to reach the tavern where they parted. He didn't ask anyone for directions to the motel, nor did he inquire about the taxi service which was available. Instead, about 2 a.m. in the morning and after admittedly having five drinks, he set out on foot in an unsavory section of the town to reach his motel some three miles away without being certain which direction or how far it was. In our opinion that action is simply not reasonable, nor could an employer be expected to reasonably foresee that an employee would make such a rash decision." (78 Ill.2d at 574-5.)

The court concluded (78 Ill.2d at 575-6), "In the case now before us even though the initial decision to have a few drinks with [his comrades] is assumed to be unobjectionable, the decision to walk back to the motel resulted in a late-night excursion through an unfamiliar and potentially hazardous area.... Eschewing taxi service and guidance in locating the motel, [the employee] predictably became lost and, at that hour in the morning, apparently saw no one to assist him. As the arbitrator below decided, any conclusion that this rash course of conduct is reasonable and foreseeable is against the manifest weight of the evidence."

Even with these cases providing guidance, I can't begin to guess how an Illinois court might resolve a case similar to the one decided last week in Australia. If this case arose in Illinois, the result might have been different... although not, presumably, the giggling media coverage.

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

For further reading: High Court rules out compensation to public servant injured while having sex in a motel (The Australian)

Australian loses compensation case for sex injury (AP coverage, this link to the Waterton, South Dakota Public Opinion)

Thursday, October 3, 2013

Government program beginning even though it's clearly not ready!

Do you know where your Ventra card is?
It occurs to me that the headline on this post may be misleading for out-of-town web searchers surfing the Ether for snark about Obamacare. Sorry, Red State visitors, but here in Chicago we have Ventra. (Cue scary music.)

It wasn't until last night, after reading 43rd Ward Ald. Michelle Smith's email newsletter, that I realized I won't be able to put any more money on my CTA Chicago Card as of Monday.

I'd received an email from the CTA -- some time ago, come to think of it -- telling me that my Ventra card would soon be arriving in the mail.

But it hasn't arrived.

At least it hasn't arrived in my mailbox.

According to the Chicago Tribune, it is entirely possible that CTA customer Dan Lasky may have gotten my Ventra card, and probably yours as well.

The Tribune website features this picture of Mr. Lasky's mailbox and the linked article notes that Mr. Lasky has been informed that he also has another 'tray' of mail waiting for him at the Post Office.

I have noticed some Ventra cards already in use. It's been hard to miss the people cursing, pounding, or jumping from turnstile to turnstile trying to find one that will read their super-duper high-tech Ventra card. And I've been reading the horror stories about multiple fares being deducted by the Ventra card without the customer's knowledge: The 'old fashioned' Chicago Card tells you your balance when you enter the turnstile; you can quickly verify that the machine has deducted the expected amount -- but there's nothing analogous on the Ventra system.

I know I'm supposed to be reassured by more recent press accounts that say that the initial glitches in the Ventra rollout have been fixed, but my 'early adapting' days ended forever many years ago when I purchased what today we'd call a notebook computer equipped with Microsoft Windows for Pen Computing Version 1.0. (Cue more scary music.)

I was hoping to stall Ventra off until at least Christmas.

Apparently that will be impossible.

Mr. Lasky, I'll be stopping by your apartment this evening looking for my #@$!& Ventra card....

Tuesday, October 1, 2013

Justice James Epstein on NTNM



Appellate Court Justice James Epstein is one of Avy Meyers's guests on this week's edition of North Town News Magazine. NTNM is shown on CAN-TV 19 in Chicago on Thursdays at 7:30 p.m. and on Fridays at 2:30 p.m. In Evanston, NTNM airs on ECTV 6 on Thursdays at 5:00 p.m. and on Sundays at 10:30 p.m. NTNM airs on several other suburban cable systems; consult your local listings.

My thanks to Avy Meyers and his entire technical crew, Sonny Hersh, for allowing me to share Justice Epstein's NTNM appearance here.

My most recent appearance on NTNM


Avy Meyers was kind enough to invite me to appear recently on his North Town News Magazine program. This is that interview. My thanks also to Avy Meyers's entire technical crew, Sonny Hersh.

Saturday, August 31, 2013

Does the NSA really want to ban this t-shirt?


My son-in-law Arne called this story on Business Insider to my attention. The gist of Jim Edwards' story was that gift site Zazzle.com pulled the t-shirt shown here from its site in response to pressure from the National Security Agency. (Zazzle had been selling these shirts for Dan McCall, the shirt's designer.)

This evening, however, The Atlantic Wire reports, "The NSA Doesn't Mind Parody T-Shirts After All." According to Connor Simpson's article, Zazzle did receive a letter from the NSA... in 2011.

According to Simpson, the NSA advised The Daily Dot, the outlet that first broke this story, that "The NSA seal is protected by Public Law 86-36, which states that it is not permitted for '…any person to use the initials NSA, the words National Security Agency and the NSA seal without first acquiring written permission from the Director of NSA" (some internal quotation marks omitted). However, the NSA's letter to Zazzle, back in 2011 didn't concern this t-shirt (obviously, since it was designed after the Snowden revelations) but rather a mug which apparently used the NSA seal.

This is the real NSA logo.
Note that it says nothing about
peeping or sleeping.
Despite the careless language in the linked stories, the t-shirt in question was not using the actual NSA seal. The motto of the NSA isn't really "peeping while you're sleeping."

But that's OK. The NSA was also apparently careless in its use of language. The actual statute in question is 50 U.S.C. §3613 which provides, in subsection (a) (emphasis mine):
No person may, except with the written permission of the Director of the National Security Agency, knowingly use the words “National Security Agency”, the initials “NSA”, the seal of the National Security Agency, or any colorable imitation of such words, initials, or seal in connection with any merchandise, impersonation, solicitation, or commercial activity in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency.
I don't think anyone could possibly develop an impression that the t-shirt depicted in this post was in any way "approved, endorsed, or authorized" by the NSA.

Meanwhile, The Atlantic Wire says the shirt is now available for sale on Cafepress. Click over there and you'll be instantly persuaded that, if Mr. McCall didn't invent this entire controversy, he is certainly taking full, savvy-marketing advantage of it all. And he is certainly not trying to convey any impression that his shirts carry the NSA imprimatur.

Laughing about the NSA?

Screen capture from getprsm.com

I saw the reference to to the very funny getprsm.com site on someone's Facebook page. Given the subject matter thereof, I worried a little about mentioning my source... and finally didn't. They already know, I suppose, but why push it?

When Mr. Snowden made undeniably public what had so long been assumed (and feared) there were the inevitable editorial cartoons. Messrs. Luckovich and Oliphant, for example, weighed in before the end of July.



But editorial cartoonists are expected to have pungent opinions on any given day. They have new opinions, on different matters, just about every day.

But the revelations about the NSA weren't just any old story. It bothers a lot of us on a fundamental level. This can be illustrated in the way in which the story came up in far less political comics, like Dilbert and Dustin.



For those of us old enough to remember when the taking of an oath to preserve and defend the Constitution of the United States was a solemn promise to adhere to the letter and spirit of the document, this is one of those we-have-to-laugh-to-keep-from-crying stories. I thought this last cartoon, from a web comic called Doghouse Diaries, was particularly amusing.

But -- just in case someone in authority is thinking about it -- this sort of thing wouldn't make anything better as far as I'm concerned.

Thursday, August 15, 2013

Too busy right now, restauranteur tells would-be robbers -- come back in an hour


According to this UPI account, late Sunday night, Mario Garcia, 39, and Domingo Garcia-Hernandez, 28, went to a West Rogers Park restaurant, the Clifton Grill, brandishing a squirt gun, intent on robbing the place. (The Huffington Post account suggests that they merely demanded food on this first visit.)

Whatever they were after, they weren't willing to pay for it. Garcia and Garcia-Hernandez allegedly threatened the owner with grievous bodily harm if he did not accede to their demands.

The owner was nonplussed. He was just too busy to be robbed just now, he told them. Come back in an hour, he suggested, intimating that he'd be more amenable to a robbery then.

They left.

But an hour later, just as the owner recommended, the would-be robbers returned. The Huffington Post account says that, this time, Garcia and Garcia-Hernandez allegedly demanded $100 in addition to their takeout order.

The owner said, sure, but he needed to get his wife's checkbook. (Apparently the crooks didn't take MasterCard or Visa.) He excused himself, but he didn't look for a checkbook. He called the police instead.

The police came and collected Messrs. Garcia and Garcia-Hernandez, charging them with attempted aggravated robbery. Garcia-Hernandez was additionally charged with possession of a replica firearm; apparently he had the squirtgun.

Friday, August 2, 2013

I received this notice in my email recently


Repeating: I received this in my email.

So... Clerk Brown, am I registered or not? (And if I'm not, how did I get this?)

Well, I suppose I shall have to check. Somehow.

Sunday, July 28, 2013

Bank breaks into nurse's house, takes her stuff, but won't pay her back

Ohio homeowner Katie Barnett. Photo from ABC News.
I first saw the story on Popehat, "Want To Burglarize A House With Impunity, Then Nickle-And-Dime The Restitution? It Helps To Be A Bank."

Katie Barnett, a nurse in McArthur, Ohio, was away from home for a couple of weeks. While she was away, the First National Bank of Wellston, a local institution which had foreclosed on a house across the street, went to take possession of same. "Guided" by GPS (and neglecting to actually look at the house numbers on the mailboxes outside), the bank's "representatives" broke into Barnett's house, took most of her stuff, and changed the locks. When she got home, she had to gain access through a window. She called the police; the police theorized that perhaps squatters had got in.

But, no, the bank has admitted that it was the culprit. According to the ABC News account, the bank's involvement was only revealed when someone from the bank also called the police. Persisting in their inexplicable error, bank personnel complained that someone was living in the bank's house.*

The story has made national news because of the way the bank responded to Barnett's request to be reimbursed for the value of the stuff taken -- and discarded by the bank. Barnett told ABC that the bank took two dressers and clothing for her five children, as well as items from outside their home, including pool cleaning supplies and patio furniture. She has estimated her loss at $18,000, but the bank says there are inconsistencies between "the written list of items that [Barnett] provided to us and the value she assigned to those items" when compared to "the list and descriptions of items removed that was prepared by the employees who did the work." Barnett says the bank president told her that it would not "pay retail" for her lost stuff. She's got a lawyer, and a suit is probably going to have to be filed before the bank makes good.

If it ever does.

Barnett's suit would be governed by Ohio law. But the story got me wondering what remedies might be available to an Illinois resident in Barnett's unhappy situation.

It would appear that our hypothetical Illinois resident would have an action for conversion. "To state a cause of action for conversion, a plaintiff must prove that: (1) she has a right to the property at issue; (2) she has an absolute and unconditional right to the immediate possession of that property; (3) the defendant wrongfully and without authorization assumed control, dominion, or ownership over the property; and (4) she made a demand for the return of the property." Weisberger v. Weisberger, 2011 IL App (1st) 101557, ¶45. "Generally, the measure of damages for conversion is the market value of the property at the time of conversion." Long v. Arthur J. Rubloff & Co., 27 Ill.App.3d 1013, 1025, 327 N.E.2d 346 (1st Dist. 1975). Thus, if Barnett's case arose in Illinois, the Ohio bank president's Illinois counterpart would have a basis upon which to refuse to pay retail.

But the hypothetical Illinois bank would face a petty serious problem. Punitive damages are available for the tort of conversion. Cirrincione v. Johnson, 184 Ill.2d 109, 703 N.E.2d 67 (1998). In Cirrincione, punitive damages were affirmed in favor of a doctor against a lawyer on account of the lawyer's failure to honor his physician's lien when disbursing the proceeds of the settlement of a personal injury case. "Punitive damages are awarded 'when torts are committed with fraud, actual malice, * * * or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others.'" Cirrincione, 184 Ill.2d 115-115, quoting Kelsay v. Motorola, Inc., 74 Ill.2d 172, 186, 384 N.E.2d 353 (1978). The bank's conduct here might well be thought of as more than sufficiently grossly negligent to qualify. If the law is similar in Ohio, the bank might do well to consider paying the $18,000 requested by Ms. Barnett.

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* The bank says that it figured out they had emptied the wrong house sooner than that. According to the bank's statement, "Unfortunately, we did not discover our error until the clean-up process was nearly complete." Then did the bank actually call the police to report Barnett as a trespasser in her own house or not? If it knew at an early date that it had made this terrible mistake, wouldn't the bank have notified the authorities -- or the homeowner -- sooner? You'd think that the local TV station would have verified these facts by checking with the local constabulary... but who knows?

Thursday, July 25, 2013

Text of 50 U.S.C. §1861

Related to this post on Page One.

§ 1861. Access to certain business records for foreign intelligence and international terrorism investigations

(a) Application for order; conduct of investigation generally.
(1) Subject to paragraph (3), the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.
(2) An investigation conducted under this section shall--
(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 [50 USCS § 401 note] (or a successor order); and
(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
(3) In the case of an application for an order requiring the production of library circulation records, library patron lists, book sales records, book customer lists, firearms sales records, tax return records, educational records, or medical records containing information that would identify a person, the Director of the Federal Bureau of Investigation may delegate the authority to make such application to either the Deputy Director of the Federal Bureau of Investigation or the Executive Assistant Director for National Security (or any successor position). The Deputy Director or the Executive Assistant Director may not further delegate such authority.

(b) Recipient and contents of application. Each application under this section--
(1) shall be made to--
(A) a judge of the court established by section 103(a) [50 USCS § 1803(a)]; or
(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code [28 USCS §§ 631 et seq.], who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and
(2) shall include--
(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to--
(i) a foreign power or an agent of a foreign power;
(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or
(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; and
(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.

(c) Ex parte judicial order of approval.
(1) Upon an application made pursuant to this section, if the judge finds that the application meets the requirements of subsections (a) and (b), the judge shall enter an ex parte order as requested, or as modified, approving the release of tangible things. Such order shall direct that minimization procedures adopted pursuant to subsection (g) be followed.
(2) An order under this subsection--
(A) shall describe the tangible things that are ordered to be produced with sufficient particularity to permit them to be fairly identified;
(B) shall include the date on which the tangible things must be provided, which shall allow a reasonable period of time within which the tangible things can be assembled and made available;
(C) shall provide clear and conspicuous notice of the principles and procedures described in subsection (d);
(D) may only require the production of a tangible thing if such thing can be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation or with any other order issued by a court of the United States directing the production of records or tangible things; and
(E) shall not disclose that such order is issued for purposes of an investigation described in subsection (a).

(d) Nondisclosure.
(1) No person shall disclose to any other person that the Federal Bureau of Investigation has sought or obtained tangible things pursuant to an order under this section, other than to--
(A) those persons to whom disclosure is necessary to comply with such order;
(B) an attorney to obtain legal advice or assistance with respect to the production of things in response to the order; or
(C) other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director.
(2)
(A) A person to whom disclosure is made pursuant to paragraph (1) shall be subject to the nondisclosure requirements applicable to a person to whom an order is directed under this section in the same manner as such person.

(B) Any person who discloses to a person described in subparagraph (A), (B), or (C) of paragraph (1) that the Federal Bureau of Investigation has sought or obtained tangible things pursuant to an order under this section shall notify such person of the nondisclosure requirements of this subsection.
(C) At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under subparagraph (A) or (C) of paragraph (1) shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request.

(e) Liability for good faith disclosure; waiver. A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.

(f) Judicial review of FISA orders.
(1) In this subsection--
(A) the term "production order" means an order to produce any tangible thing under this section; and
(B) the term "nondisclosure order" means an order imposed under subsection (d).
(2)

(A)

(i) A person receiving a production order may challenge the legality of that order by filing a petition with the pool established by section 103(e)(1) [50 USCS § 1803(e)(1)]. Not less than 1 year after the date of the issuance of the production order, the recipient of a production order may challenge the nondisclosure order imposed in connection with such production order by filing a petition to modify or set aside such nondisclosure order, consistent with the requirements of subparagraph (C), with the pool established by section 103(e)(1) [50 USCS § 1803(e)(1)].
(ii) The presiding judge shall immediately assign a petition under clause (i) to 1 of the judges serving in the pool established by section 103(e)(1) [50 USCS § 1803(e)(1)]. Not later than 72 hours after the assignment of such petition, the assigned judge shall conduct an initial review of the petition. If the assigned judge determines that the petition is frivolous, the assigned judge shall immediately deny the petition and affirm the production order or nondisclosure order. If the assigned judge determines the petition is not frivolous, the assigned judge shall promptly consider the petition in accordance with the procedures established under section 103(e)(2) [50 USCS § 1803(e)(2)].
(iii) The assigned judge shall promptly provide a written statement for the record of the reasons for any determination under this subsection. Upon the request of the Government, any order setting aside a nondisclosure order shall be stayed pending review pursuant to paragraph (3).
(B) A judge considering a petition to modify or set aside a production order may grant such petition only if the judge finds that such order does not meet the requirements of this section or is otherwise unlawful. If the judge does not modify or set aside the production order, the judge shall immediately affirm such order, and order the recipient to comply therewith.
(C)

(i) A judge considering a petition to modify or set aside a nondisclosure order may grant such petition only if the judge finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.
(ii) If, upon filing of such a petition, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, such certification shall be treated as conclusive, unless the judge finds that the certification was made in bad faith.
(iii) If the judge denies a petition to modify or set aside a nondisclosure order, the recipient of such order shall be precluded for a period of 1 year from filing another such petition with respect to such nondisclosure order.
(D) Any production or nondisclosure order not explicitly modified or set aside consistent with this subsection shall remain in full effect.
(3) A petition for review of a decision under paragraph (2) to affirm, modify, or set aside an order by the Government or any person receiving such order shall be made to the court of review established under section 103(b) [50 USCS § 1803(b)], which shall have jurisdiction to consider such petitions. The court of review shall provide for the record a written statement of the reasons for its decision and, on petition by the Government or any person receiving such order for writ of certiorari, the record shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision.
(4) Judicial proceedings under this subsection shall be concluded as expeditiously as possible. The record of proceedings, including petitions filed, orders granted, and statements of reasons for decision, shall be maintained under security measures established by the Chief Justice of the United States, in consultation with the Attorney General and the Director of National Intelligence.
(5) All petitions under this subsection shall be filed under seal. In any proceedings under this subsection, the court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions thereof, which may include classified information.
(g) Minimization procedures.
(1) In general. Not later than 180 days after the date of the enactment of the USA PATRIOT Improvement and Reauthorization Act of 2005 [enacted March 9, 2006], the Attorney General shall adopt specific minimization procedures governing the retention and dissemination by the Federal Bureau of Investigation of any tangible things, or information therein, received by the Federal Bureau of Investigation in response to an order under this title [50 USCS §§ 1861 et seq.].
(2) Defined. In this section, the term "minimization procedures" means--
(A) specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
(B) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in section 101(e)(1) [50 USCS § 1801(e)(1)], shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance; and
(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.

(h) Use of information. Information acquired from tangible things received by the Federal Bureau of Investigation in response to an order under this title [50 USCS §§ 1861 et seq.] concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures adopted pursuant to subsection (g). No otherwise privileged information acquired from tangible things received by the Federal Bureau of Investigation in accordance with the provisions of this title [50 USCS §§ 1861 et seq.] shall lose its privileged character. No information acquired from tangible things received by the Federal Bureau of Investigation in response to an order under this title [50 USCS §§ 1861 et seq.] may be used or disclosed by Federal officers or employees except for lawful purposes.

Thursday, July 4, 2013

Thinking about a musical and a well-traveled email on this Fourth of July


We just finished watching 1776 in our house -- a 4th of July tradition for us.

It's a musical, not a monograph, and there are some liberties taken in the story of how the Continental Congress adopted the Declaration of Independence -- no, John Adams did not really arrange for Thomas Jefferson's wife to visit Philadelphia so that Jefferson would stop mooning and get busy writing the Declaration -- but there's a lot that's accurately portrayed as well.

And there's stuff that should be accurate (even if it's not): In the movie, after Congress adopts the Declaration of Independence, further requiring that no man be permitted to sit in Congress without affixing his name to the document, John Dickinson withdraws, saying he could not in good conscience sign the Declaration because he would never give up hope for the eventual reconciliation between America and Britain. However, he said, because, in his own way, he loves America no less than John Adams (with whom he's been sparring throughout the picture), he would enlist in the Army and fight to defend his country, even though he believed the cause to be hopeless. As he walks from the room, John Adams leaps to his feet calls out, "Gentlemen of the Congress, I say ye, John Dickinson." He bowed to his recent antagonist as the other members rose, pounding their tables in applause and assent.

The scene is a magnificent illustration of how political opponents can (and should be) respectful of each other.

Of course, as the linked Wikipedia biography shows, the musical invents most of the scene. Dickinson either stayed away from the meetings at which the decisive votes were taken or abstained. But he did withdraw from Congress after the Declaration was adopted and enlisted in the Pennsylvania militia. And when Dickinson died, in 1808, Thomas Jefferson, by then President of the United States, wrote, "A more estimable man, or truer patriot, could not have left us. Among the first of the advocates for the rights of his country when assailed by Great Britain, he continued to the last the orthodox advocate of the true principles of our new government and his name will be consecrated in history as one of the great worthies of the revolution."

Every year, when I watch 1776, I am reminded of the email that just about everyone gets around this time of year, about the 'price paid' by the 56 Signers. I've liked to an Internet version of that well-traveled email; it's a sobering read.

I've often wondered just how accurate the email was; this year, I resolved to find out.

It turns out that, despite the name of the site I linked to (whatreallyhappened.com), the Signers' fates email is a mixture of true and false information. So says Internet debunker Snopes.com. Life was not all beer and skittles for the Signers of the Declaration of Independence, but the price they paid was not quite so high as the email claims.

Unfortunately, although understandably, the Snopes.com article focuses more on the inaccuracies in the circular and not on the accurate parts. But USHistory.org, a website maintained by the Independence Hall Association in Philadelphia, provides short biographies of all 56 Signers, indexed on a single page of the website. The truth may not be quite as dramatic as the 'price paid' email, but the truth is more than sufficiently inspirational.

Have a Glorious Fourth.

Tuesday, June 25, 2013

And tomato plants respond better to women than men, too

From Zay N. Smith's QT column this morning:
News Headline: "Plants capable of solving complex math equations"
And how many times have you, like QT, smiled and said, almost as a boast, "Oh, I'm no good at math"?
Well, a respected journalist like Mr. Smith would never make a headline up -- and a quick search of the Intertubes soon yielded an article duly entitled, "Plants capable of solving complex math equations," in a publication called the International Business Times.

Fiona Keating writes in the article of research showing how plants allocate starch to last through the night, "counting their starch and dividing it by the number of hours left until morning." Researchers from the John Innes Centre in Norwich discovered that Arabidopsis, a small flowering plant in the mustard family, "used their starch at a steady rate throughout the night, so that about 95% of their stock had been used up by dawn each day."

Stranger still, says Ms. Keating, "women gardeners' voices speed up growth of tomato plants much more than men's, according to a Royal Horticultural Study." Men reading to tomato plants actually slowed plant growth in some tests, according to the article, while tomato plants provided with female readers grew two inches taller.

Wednesday, June 5, 2013

R.I.P. Fr. Greeley

Fr. Andrew Greeley was buried today from Christ the King Church in Chicago's Beverly neighborhood.

Christ the King -- CK -- was the one parish where Fr. Greeley worked as a regular parish priest. Perhaps Fr. Greeley's most minor accomplishment in the course of that assignment was baptizing me, way back in -- well, the year doesn't matter, does it? This was while he was still going to graduate school, before he became a widely respected and much-published sociologist and long before he scandalized so many of his fellow Catholics, including many of the good people of Christ the King (which, if memory serves, he referred to as "St. Praxides" in several of his novels), with his "dirty books."

Yes, I read most of them. Openly. I enjoyed most of them, too. I don't know that any would qualify as great literature, but they were page-turners. The good guys are very good and they always win; and all the bad guys lose -- except that some of them find redemption instead. In which case, they also win and become good guys, too. What's wrong with that? Cotton candy, maybe, but a little cotton candy is a treat now and then, is it not?

I know I run the risk of raising a few eyebrows among my fellow parishioners (and even among some family members) by admitting that I was a fan of Fr. Greeley's fiction. So this morning I will hide behind Fr. Robert Barron, surely a pillar of orthodoxy (if such a person may be found), who published an article yesterday on Real Clear Religion entitled, "In Defense of Andrew Greeley." It's a touching tribute, and I recommend it.

Unlike Fr. Barron, I can claim no real acquaintance with the late Fr. Greeley, but Fr. Greeley is the reason I am called Jack -- and, brief as it was, Fr. Greeley's involvement in my life threatened to complicate my wedding plans, some 31 years ago.

My given name is Francis John. My father was Francis John, also. Lawyers of a certain age will remember my father as Frank. But Frank was also the name by which my grandfather -- the first Francis John -- was known. When my father was born, my grandfather's plan (or so the family story goes, since my grandfather died in 1946) was to have his son christened John Francis. The priest presiding on that occasion, however, thought a son should be named for his father, and he reversed the order of the names. My grandfather couldn't complain. In those days, parents didn't even attend baptisms; the godparents took the infant over to the church. Besides, my grandfather's brother was the priest. (There may have been an uncomfortable moment or two when my father's uncle dropped over for cake or coffee following the ceremony.)

Thus my father, who was supposed to be John Francis, found himself saddled with the moniker "Junior" throughout his father's lifetime. He didn't like that. When I came along, my father was determined that his son would be named as he wanted. He directed that I be christened Francis John, as he was, but he had it written right on the baptismal certificate that I was to be known as Jack. Fr. Greeley went along -- and because Fr. Greeley went along even the good Sisters of Mercy at Christ the King had to call me Jack as well.

In fact, I was known everywhere as Jack until I passed the bar exam and my first employers insisted on putting "Francis J. Leyhane III" on the firm letterhead. My employers thought "Jack" sounded too young and called undue attention to my youth and inexperience.

(Sadly, though I am still using Francis J. Leyhane III professionally, my youth is no longer an issue.)

I went to get married not too long after my name was revised for purposes of the practice of law.

In order to marry in the Church, Catholics must fill out lots of forms. (We are the Roman Catholic Church for a reason; the Imperial bureaucracy became the Church bureaucracy during the 100 years or so from the time that Constantine legalized the faith and the fall of Imperial Rome. In the best traditions of Ancient Rome, there is a form for everything in the Catholic Church, and a pigeonhole where that form must be filed.)

To fill out their forms, the prospective bride and groom must bring other forms -- proof that we'd been baptized, and that we'd received Communion and Confirmation -- and these forms must be scrutinized for any irregularity.

Well, by early 1982, Fr. Greeley had begun writing those aforementioned "dirty books." And his feud with Cardinal Cody was open and ugly. Greeley had a newspaper column in those days, syndicated around the country, as I understand it -- but nowhere to be found in Chicago. But a college classmate of mine, Catherine O'Connell-Cahill, was working in those days for the Claretians (she still is; she's now a senior editor of U.S. Catholic) and she was kind enough to alert me to a potential obstacle to my pending nuptials.

The parish where I was to be married had recently become the subject of unfavorable mention in a number of Fr. Greeley's newspaper columns. My friend knew about it because (in those pre-Internet days) she had access to those columns when most of us in these parts had none. It seems that the new pastor of the parish had placed the Rectory off limits to teens, angering a close relative of Fr. Greeley's. Fr. Greeley took exception and he named names. And here was Fr. Greeley's now-controversial signature on the baptismal certificate that I needed in order to be wed.

Fortunately, I met with the assistant pastor for my pre-Cana paperwork, not with the pastor himself. Nevertheless, because I'd been warned, I slid my paperwork across the desk with some trepidation. "Does my baptismal certificate count here?" I asked, only half in jest.

The good father studied the paperwork awhile and frowned deeply. "Hmmmm," he said finally. "Well, let's see... Leyhane. Leyhane... are you by any chance related to Fr. Will Leyhane?"

I was indeed, I said (that was my father's uncle, the one who'd changed my father's name at the font). Well, the priest said, he'd been a Deacon at St. Ethelreda's many years ago (my granduncle's last parish); he'd gotten on well with my granduncle. "So I think we can get past this," he said, sliding the paperwork back. I think he was speaking at least half in jest too -- he was smiling -- but I've never been entirely certain.

Farewell, Fr. Greeley. Heaven may be enriched, but we are diminished, by your passing.

Saturday, June 1, 2013

More scenes from the 2013 Norwood Park Memorial Day Parade

This post begins on page one.

Girl Scout group from Congregational Church of Jefferson Park


Garvey School

Onahan School group


Immaculate Conception Cub Scouts


Immaculate Conception Scout group

Bagpipes & Drums of the Emerald Society, Chicago Police Department


There's always a number of businesses that participate.  I find this one particularly amusing.

The world's smallest moving van?

Norwood Park Chamber of Commerce



The band from Smyser Elementary School

The youngest marchers may be the most enthusiastic.

Remember, I said we missed most of the politicians.  We didn't miss them all.

MWRD Commissioner Frank Avila (at right)


The Norwood Park Memorial Day Parade always has a lot of classic cars.  Here are a few representative selections.
This is not the muscle car that upset my photographer's assistant

Some of the "old" cars were newer than this one.  And I didn't think this one was that old....
These two, on the other hand, I can accept as "antiques."


My thanks to my photographer, Brigid Leyhane Olsen.

Tuesday, May 7, 2013

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 (the "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.