I saw on Facebook that Bonnie McGrath's recent Chicago Now post, "The Chicago Reader recently celebrated its 50th annivesary--and some of those years were the best years of my life," had been named one of the 20 best on that site for the month of January.
Like a lot of Chicagoans of a certain age, the Reader
was for me, for awhile anyway, a must-read each and every Friday. A must-browse, anyway (some of the articles tended to be on the long side).
I read Bonnie's recollections about the pieces she wrote with great interest. And while I didn't follow all the links therein (mostly to old Reader
stories) I did follow a few. In particular, when Bonnie was talking about the scoop she had about a judge, I wanted to confirm my hunch she was talking about the late Brian Duff, formerly Judge of the Circuit Court and, later, United States District Court Judge. Which, as it happened, she was. It got me to remembering....
Judge Brian Duff was not the first judge before whom I regularly appeared on motions in the Law Division. By the time he and Judge Thomas J. O'Brien were in place, I was a regular over there. And, by regular, I mean appearing before either or both of them just about every single day. And I was by then fairly experienced.
(That's why it was such a shame I wasn't elected to the bench in 1994 when I first ran. I was pretty sure I knew everything then... I have clearly slipped badly since then....)
Judge O'Brien is the father of a friend of mine, so I knew him, very slightly, outside the court. But I saw Duff and O'Brien as sort of the yin and yang of the best Irish judicial personalities. Judge O'Brien was the tough schoolmaster type. I've written about O'Brien
before on FWIW -- but I don't think I've yet shared this one: One time I was arguing a discovery motion with another attorney in front of O'Brien. And I do mean arguing with. In contravention of one of the major rules of courtroom decorum, we had stopped talking to the judge and started hollering at each other. O'Brien quickly had his fill of us.
"Obviously," he said, "you two have a lot to say but I have a full courtroom. So I want you two to sit down in the jury box until I finish with everyone else and then you can talk to your hearts' content."
We sat. And sat. And the call dragged on. I'm not sure who broke the ice, but one of us leaned over to the other, eventually, and whispered sotto voce, "I think we're being kept after school."
Well, that did it. We soon had an agreed order on whatever meaningless nonsense issue we had.
But we still had to wait.
And wait.
And wait some more.
Finally, the call was over and Judge O'Brien ordered us to step back up. We told him we'd worked out an agreed order. He beamed. "I was hoping you might," he said. (It would not have gone so well for either of us if we'd just drafted the order and split. We knew that instinctively.)
But back to Judge Duff: He was always the pol, the hail-fellow-well-met. He remembered counsel's names, and used them.
On the other hand... he did sometimes dig in a bit, and at the strangest times.
One day I was over a motion to compel production of something, an insurance policy, I think. And the motion was unopposed.
At least, it was unopposed by opposing counsel of record.
Judge Duff decided that
he would oppose my motion. There was at least a basis upon which one might conclude the request was overbroad or inappropriate -- I can concede that now -- but, did I mention, the motion was technically uncontested?
How can you lose an uncontested motion? (That's a rare feat -- even for me.) So I got a little hot. And then a little hotter.
This had to be about the last case on the morning call which, in those days, went to noon -- this was the 11:30 call and the courtroom must have been pretty well empty. At least I hope it was.
Anyway, I wound up on tippy-toe and Duff was standing, too. At least I think he must have been, because, as I recall it, we were pretty much jaw to jaw screaming at one another.
Finally, I remembered where I was and realized what I was doing and I subsided and drew the order.
A few days later I wandered back into chambers (you could do things like that in those days) and apologized. As I should have -- even if I was right. And all was well and good thereafter.
But, eventually, there came a case where I was defending a 7-year old kid who was about 5 or so when, allegedly, while driving a Sting-Ray bicycle down some suburban cul-de-sac, ran into a toddler who had darted out from a driveway, riding a Big Wheel. The toddler broke his right leg. The toddler's attorney noticed my client for deposition.
I moved to quash.
In my motion I argued that no matter how well-prepared my client might be, he would undoubtedly be lead into making unintended, incriminating statements. Mozart, I argued, wrote a symphony at 5 -- a true genius, I said -- but I would object to producing him for a deposition, too, and for the same reasons: In a deposition, he could be easily be manipulated into confessing to kidnapping the Lindbergh Baby. You don't usually get Mozart and the Lindbergh Baby in the same motion, even in the Law Division, but I was pretty determined. And, of course, opposing counsel was not going to back down.
Judge Duff heard us out and crafted a Solomonic solution: He would take the deposition. In chambers.
The appointed day arrived. After all the day's business was concluded, I and my client (I assume his parents were there, too, but I honestly don't remember them) arrived, as did opposing counsel, and the court reporter.
Judge Duff could not have been nicer with the kid.
Could not. He showed the boy around the courtroom, let him ring the buzzer in the jury room, let him spin around in the judge's chair behind the bench. We all repaired to the judge's chambers and Duff showed him around there, too. Finally we set up around a coffee table, sat on the couches and the comfy chairs, and began the deposition. Or, rather, Judge Duff began. Neither counsel, under the judge's order, would be permitted to ask any questions at all.
And things went well.
For awhile.
You have to understand it was late in the day. And maybe taking a party deposition in a very minor Law Division case was not the most exciting thing that Judge Duff could think of to do that day. Maybe he was getting hungry for his dinner.
The whys don't really matter.
What matters is, after awhile, perhaps just to get things over with, Judge Duff started to ask leading questions.
I probably let a couple slide. Maybe more than a couple. I wasn't sure what I was supposed to do in this situation -- but, finally, my training kicked in. "Objection. Leading."
Judge Duff got hot immediately. "What? I am not."
"Judge, you're asking leading questions and you've been doing it now for awhile. You're violating your own order."
There may have been some more byplay of the "am not" "are so" variety but, eventually, Judge Duff snapped, "Miss Reporter, read back that last question."
She read.
He listened.
"Oh," he said, finally. "I guess I am leading. Sustained."
And we got through it.
I didn't get to see much of Judge Duff after he went over to the District Court.
I knew he'd started using his middle name and that he'd acquired a bad reputation among the Federal practitioners but I didn't go over to the Federal Court very much at all in those days. (I avoid it like the plague now.)
But, one day, I did have some minor matter that required my appearing before Judge Duff.
I really wasn't sure what to expect.
I really didn't expect to be greeted like a long-lost relative -- and neither, judging by their open jaws, did those gray-suited (maybe some wore blue) Federal practitioners. Who was this shlubby guy (I was probably wearing a brown tweed sportcoat or something else really not often seen in those august precincts) carrying on with Duff the Gruff like lodge buddies at a picnic? But, whatever minor thing it was that I needed, I got it without incident and we reminisced pleasantly for a bit and I went on my way. (And how I know the rest of the room was sitting slack-jawed was because they hadn't pushed their jaws back up by the time I turned around to leave.)
I think I may have seen him once after he retired; Bonnie had written for the
Reader of Judge Duff's retirement from the federal bench. I saw him some years back at an Appellate Lawyers Luncheon. Bonnie told me that Judge Duff has been gone since 2016; I am frequently surprised, these days, how things that seem recent are really now several years ago. Since 2020, of course, that phenomenon has only gotten worse.
But, now and then, it's nice to have one's recollection refreshed. For more stories, however, I'm afraid you'll have to buy the book. One of the ones I
should have written during the Pandemic....
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