Thoughts on watching the oral argument in the Trump fraud case

When I post an article to FWIW, I generally put up a linking post on X (which you may still think of as Twitter). That's normal self-promotion, and not necessarily unhealthy.

The unhealthy part comes when I start browsing... and re-Tweeting... and liking... and bookmarking... and going into and through a myriad of rabbit holes, some of them apparently sane and informative, others obviously anything but. The really crazy ones are sometimes the most entertaining... and addicting.

Way back in 1993 Peter Steiner came up with an iconic cartoon for The New Yorker (at left) that suggested (and not for the last time) that not every Internet "expert" was what they seemed to be. And now there's 'Legal Twitter.' I don't mean to suggest that any particular account is flea-bitten... but one can sometimes get suspicious.

Lately about a gazillion Tweets have been posted about the September 26 oral arguments in the case of People of the State of NY v. Trump, No. 2023-04925. That's a link to the video of the oral argument in the preceding sentence; the YouTube video of the argument is at the end of this post.

A great many of the posts on X about the argument, many of them with clips from the argument, suggested that the New York Attorney General was 'destroyed' (or similar terms) in the argument... some suggesting that, by the end, the State was begging not to have sanctions imposed.

Um.

Actually, part of the argument concerned an appeal from sanctions against Trump's lawyers.

I know this because I watched the argument today.

I watched it because I wanted to see for myself how well or badly Trump fared in the argument.

I don't claim to be an expert on 'Legal Twitter.'

I don't have a license to practice in New York. I've never practiced in New York. I have argued a fair number of appeals, however, though only in Illinois.

And, in the course of arguing cases before an appellate bench, I developed a sense of whether I was likely to prevail... or not. (It's one of the reasons I always... well, almost always... wanted oral argument on an appeal: When I filed my last brief, whether appellee's brief, or appellant's reply, I was always convinced I had crafted a winning argument. A decision issued without argument sometimes brought with it a cruel letdown.)

I'm not saying I could always walk out of a courtroom knowing I had won or lost... well, there was one time....

*** Shimmer *** Shimmer *** Shimmer ***

How's that for special effects?

I represented the family of an immigrant from the former Yugoslavia. He came to this country in August 1998, after the repeal of the Illinois Structural Work Act. He was dead 90 days later.

He was doing rough carpentry work on a new home in Hinsdale. They were just starting to put frame of the home up on the day of my client's fatal accident; there were no internal walls yet constructed. The subfloor was in place, but no basement stairs had been installed. Instead, two large pieces of plywood covered the opening.

The plywood was nailed in place; otherwise it would have opened into the basement like a trap door. The general contractor was going to handle the installation of the basement stairs himself. He removed all the nails which had protected the opening, but hadn't moved the plywood off the opening when he was interrupted by a page. The contractor also owned a tavern in Cicero... and some men wanted to see him about the video poker machines that he had installed there. The contractor immediately dropped everything and took off. It would not do to keep those good fellows waiting in Cicero... if you know what I mean.

Concerning the condition of the jobsite that he left behind, the contractor's deposition testimony was, essentially, (1) I removed all the nails, but didn't move the plywood so that the opening could be seen; (2) I knew I'd created a dangerous situation, but I had to leave; and (3) I'm sorry I created a dangerous situation.

It was lunchtime. My man started to walk through the house to join the other workers for lunch.

He never made it. He dropped through the plywood trap door that was created by the contractor's removal of the nails, tumbling over as he fell, hitting his head on the basement floor. He never regained consciousness.

I was brought in for the appeal from the summary judgment awarded to the defendants.

That result may seem absurd the way I've laid out the facts... I hope it does... but my guy was not available to explain what happened and, in the vernacular, nobody saw nothing. Even if they did have a clear line of sight. And they did. However, nearly everyone on the job also hailed from the former Yugoslavia... there was a language barrier... and a pronounced reluctance, quite common among immigrants from former Communist countries, to talk to the police. And appellate counsel can only work with the record made in the trial court.

Still... I thought I had a case... a good case.

I don't know why the man's family came to oral argument. His widow, a couple of grown sons, some other relations... they all crowded around me after the argument was concluded, telling me what a great job I'd done.

It tore my guts out.

They did not understand how badly the argument went. The panel was not hostile or rude or anything... but, when I got up for rebuttal, the justice presiding closed his folder and pushed his chair back. He was done. And so was I.

I remember trying to break the news to the family, trying to find a way to tamp down their enthusiasm. I also remember that the decision came down in nine days.

Nine days.

*** Shimmer *** Shimmer *** Shimmer ***

Anyway, while the outcome was never as certain as it was in that case, I would typically leave oral argument with a pretty fair sense of whether I had a shot... or whether I'd been shot down. I wasn't always right, but I was usually right.

I watched the Trump appeal video to see if I could develop a sense about where the panel was going. No, I hadn't read the briefs. No, I hadn't particularly followed the trial. I certainly had not studied the record.

But, if the argument had gone the way that so many were claiming on X, I was pretty sure I'd be able to tell.

And I could not tell.

It's never a good sign when you catch your first question just as you finish identifying yourself. That happened to the New York AG here. And there's clearly some judicial discomfort about the scope of the statute in question and the amount of the damages awarded. But both sides faced pointed questions....

I guess we'll have to let the court speak for itself. When it decides to speak.

But don't take my word for it.

At this point, in this climate, I pretty much don't believe anything about anybody unless I see it for myself. See for yourself, if you have 50 minutes, and see what you think.

The removal of content from Nexis threatens us all

It was just another email, one among hundreds, many of them survey requests of one sort or another.

At least this one was from a company with whom I do business.

I was probably never going to answer it. I know the Millennials and Zoomers respond to surveys as a matter of reflex. When no one thinks to ask their opinions, Millennials and Zoomers write reviews anyway. But this is not how I was brought up.

I imprinted on Mike Royko's position (paraphrasing here): If trapped into answering a survey (or poll), lie. But better by far not to get trapped.

I will admit that I have read online reviews from time to time. There are so many gizmos I know nothing about; sometimes I think that maybe, just this once, reading reviews will help me decide if I want to buy this product or that one. But then I read the reviews: About half seem as if they were written by the seller's mother; the other half appear to have been written by the seller's competitors. Or worst enemy from junior high.

Not helpful.

I looked at the first question on the survey:

As a valued Lexis customer, your feedback is very important to us and will help us prioritize improvements to our products and services.

Please begin our short survey by answering the first question below:

How likely are you to recommend Lexis to a colleague, associate or friend?

I was supposed to respond on a scale of 0 to 9 where 0 means "not if you put a gun to my head" and 9 means "with me around you'll never need to pay for advertising."

If I answered that question, the survey would continue online.

But I wondered whether completing the survey would give me a real opportunity to express my serious issues with Lexis/Nexis -- and, if I did, whether anyone in authority would read and address my concerns.

After I stopped laughing at myself for having such a ridiculous thought, even for a nanosecond, I concluded that I would have a better chance of reaching the decision makers at RELX, Inc. (the current corporate overlords of Lexis/Nexis) if went into my backyard and screamed my concerns into an indifferent wind or if I wrote about it here. Writing about it here seems less likely to trigger the involvement of the police, so here we are.

I pay several hundred dollars a month for the privilege of access to Lexis and Nexis. There are far more economical ways to keep track of Illinois case law. But, from time to time, when I have had insurance coverage work (as I used to, anyway, before the Pandemic) I have discovered that, while the reviewing courts of Illinois might not yet have had an opportunity to weigh in on the meaning of a particular policy provision or endorsement -- some court in Oregon or Florida or Montana has. If you promise to pay Lexis enough money each month, Lexis will grant you search capabilities for all federal courts and the reviewing courts of all 50 states.

I promised to pay.

To get the best possible (i.e., lowest) price for this access, I had to agree to a term of years.

But, to overcome my resistance, I recieved access to Nexis as well.

At one time, Nexis had a comprehensive library of every major newspaper in the world, and most of the minor ones. Maybe I couldn't read today's Washington Post or New York Times on Nexis -- but everyting would become available in a day or two.

Having access to the Tribune and Sun-Times archives was particularly helpful for me when researching judicial candidates. Lawyers in private practice routinely put all sorts of stuff on line hoping to snag a unicorn, such as a client with a good case and the means and willingness to pay for it -- but career prosecutors or PDs don't have those concerns. And, at one time, though our newspapers very seldom covered a civil case, they published all sorts of stuff about doings in the Criminal Court.

But that was then.

As newspapers have erected paywalls around their content, they have also stopped sending content to Nexis and, in many cases, removed their content entirely. The Chicago Daily Law Bulletin was one of the first to disappear. I may still have been on Westlaw when that happened. Not only did I lose an invaluable resource for keeping track of judicial candidates, a decade's worth of columns I wrote for that paper disappeared as well. Vanished down the memory hole. But I had my original (unedited) articles. So my work was not entirely lost. Also, I still had a subscription to that paper (though it has since lapsed) and, while I missed the ability to conduct proper searches on judicial wannabes, I coped.

Recently I had a story idea that required me to search past issues of major newspapers in an effort to confirm my recollection of events a year or two past. But Nexis was the online equivalent of a ghost town. I could find nothing.

Sure, sure, you say. If I weren't such a cheapskate, I'd have bought subscriptions to all these 'papers of record' and then I'd have access to the information that I sought. Granted, I've made no secret of my disdain for digital subscriptions and the random pricing thereof. And because I don't have separate subscriptions to each of these publications, I can't say with certainty that they are less searchable than was Nexis. But, the truth is, I was already paying for subscriptions to all these papers, via Nexis.

And now Nexis has been effectively emptied. Though the price Lexis/Nexis (or RELX, Inc.) charges me has not decreased by a penny.

If you've stayed with me to this point, you may be experiencing pangs of regret: Why should you have to put up with my whining about paying for services not received? You have problems of your own.

And I'm sure you do. But, I humbly submit, whether you know it yet or not, this problem with Nexis is another problem for you. How can a newspaper be a 'paper of record' if there's no independent record of what it said on any given day? Libraries will have pre-Nexis microfilms; we've all used these at one time or another in our pasts. But did libraries continue to microfilm newspapers that were available on Nexis?

I've never been entirely comfortable with putting our official reports -- our Illinois case law -- online only. I'm sure the court system has the best possible security. But computer security evolves, action and reaction, strike and countermeasure. But this much remains certain: No hacker can ever change a book.

Now our courts have every reason to ensure the veracity and accuracy of our case law. In a profession that celebrates the doctrine of stare decisis (if sometimes only in the breach) we need to know what was said, and by whom, and how, before we can follow or abandon the principles espoused in the cases.

A "media" company is under no such obligation, legal or moral. Without a Nexis to preserve it, if a past story becomes embarrassing, it, too, can be pushed down the memory hole. Times change. Opinions change. Opinions that were mainstream a century ago, or even a decade, or maybe even a year ago, may now be inconvenient or worse. An old article may be jettisoned. Or rewritten to suit current fashions. And who will be able to contradict it without Nexis or some comparable national archive? New ownership may wish to 'sanitize' the unsavory opinions expressed in the property just acquired. If the Murdochs ever fade away, their successors may be mighty tempted....

We celebrate newspapers as the 'first draft of history.' But if we are to understand our history, and learn and grow from it, we need convenient access to those unedited first drafts.

Strictly Personal: Did Adam Schefter really have to break the Andrew Luck story Saturday night?

The whole family was over Saturday evening. The older grandkids were grumbling that the TV was tuned to the Bears game (such as it was), with sidetrips only for the Sox game (fewer and fewer as the evening wore on) and the University of Miami vs. University of Florida tussle on ESPN.

It was while watching the college game that we first saw news of Adam Schefter's tweet about Andrew Luck's retirement. My sons and sons-in-law had their phones out in an instant -- they all follow Schefter -- and instantly confirmed that Schefter had made this report. "He'd better be right," said one. "If he misses on this one, it's a possible career-ender."

"Well, he just doubled down," said another, reading Schefter's latest tweet.

(I had my phone out, too, but I seemed to only have tweets from Popehat's Ken White. Nothing about Indianapolis quarterbacks at all.)

We flipped back to the Bears game, where Schefter's tweets were under discussion by the broadcasters -- and, apparently, by many of the fans. There was quite a bit of exaggerated gesticulation going on in the stands that appeared unrelated to any action on the field.

"Try NFL Network," someone suggested, and we flipped over there next, but a different, though equally meaningless preseason game was unfolding there.

Millennials flip channels way too fast for me, but somewhere in the back and forth, supplemented by phone data, it was determined that Luck would address the media following the Bears game. And that Luck was booed by the fans in the Lucas Oil Stadium stands as he left the field for perhaps the last time.

One of my sons-in-law is an Indianapolis native. It would be too much to say that he was actually distraught, but he was a bit in shock. "They're not booing Luck necessarily," he finally said. "They're angry at the team for squandering Luck's talent. For failing to get a capable offensive line. The Colts ruined him."

I don't think they quite made it to halftime of the meaningless game on the NFL Network before the network cut away to show young Mr. Luck, choking up at the podium. They did a split screen for a minute or two, then just put Luck up full frame.

This wasn't how he wanted to go out at all.

He had talked to management about his decision to retire before the game. He wanted to break it to the team after the game, then have a press conference to explain it to the world on Sunday.

Obviously, somebody blabbed. A family member, perhaps. A team employee. Whoever the blabber was no doubt thought that he or she had extracted a promise from the blabee not to spread the news further.

Thus illustrating the old Ben Franklin maxim, "Two people can keep a secret so long as one of them is dead."

But why did Schefter have to tell the world so quickly?

Who would have been hurt by sitting on the news for an hour or so? That would have given Luck time to tell his teammates. It was evident, watching Luck's premature press conference, that he was devastated that he was not permitted to tell the team his news his way.

The Vegas bookies had to quickly recalibrate the odds of Indy getting to the Superbowl. Someone on Twitter posted a receipt from a sports book in Iowa -- do they really have sports books in Iowa? -- allegedly showing a wager made on Indianapolis to go to the Super Bowl made not five minutes before Schefter's first tweet.

But did we all really have to know Luck was going right then? The good people who bought Colts season tickets in reliance on Andrew Luck's return had already done so.

It was hardly a matter of life or death. I guess revealing the information when he did burnished Schefter's reputation as a knowledgeable insider.

I think it would have been better for all concerned, however, better even for Mr. Schefter, if the news had been withheld until after Luck had the chance to tell his locker room.

I guess I would never have made it in journalism.

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Andrew Luck photo obtained here.

On media, money, and recent headlines

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

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

Richard Cooke tells the Watchdogs why he quit his #CookCountyJudicial gig https://t.co/0eAquCRbfd via @suntimes

— Jack Leyhane (@JackLeyhane) May 5, 2017

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

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

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

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

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

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

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

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

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

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

Neil Steinberg's column makes a good point today

OK, so I'm taking the link to the column (and this picture) from Steinberg's blog -- have you tried using the Sun-Times' website lately? I read the column in the paper, on the train. Real newspapers never lose signal in the subway.

Anyway, Steinberg writes about his recent experience serving on a jury in a rear-end subro case. The jury wound up deadlocked (5-1 in favor of plaintiff) and jury foreman Steinberg wasn't pleased with that aspect of the experience. He concludes, however,

[I]t's a flawed system—the guy was negligent— but one person can derail the whole thing. Still, it works, sort of. Everyone was exceedingly polite, and thanked us for us doing our civic duty. Compared to the bloody chaos in most of the world, our justice system is a gift.

Our justice system is flawed -- and as lawyers we can't help sometimes but get focused on the problems that we see in our varying practices. But we need to keep in mind, and to keep proclaiming to the public, the larger, and far more important, point, that Mr. Steinberg makes this morning: "Compared to the bloody chaos in most of the world, our justice system is a gift."

Anita Baker's legal woes provide lessons for would-be litigants in small claims cases

Edited 5/9/18 to remove no-longer-functioning video link.

I heard this on the radio in the last couple of days: Singer Anita Baker is being sued by an attorney who says he stiffed her by not paying $69,000 in legal bills he incurred in fighting a suit brought by contractors who claimed Ms. Baker had failed to pay them $15,000 for painting they'd done at her home in the Detroit area.

This, I thought, was ideal fodder for a blog post. I have conversations with prospective clients almost every week about relatively small disputes. I always try to explain that smaller cases often take significant time to prepare and that fees could quickly become disproportionate to the amounts really at stake. But I've noticed that trying to explain this concept in general terms isn't always particularly effective. On the other hand, people pay attention to celebrities and stories about celebrities. This story, I thought, might provide a teaching moment.

Of course, the story wasn't quite as simple as the Chicago radio account made it out to be. I've tried to republish a Detroit TV story about the suit. Even if the video won't play on your device, however, I have this link to the TV story.

It appears that Ms. Baker has been involved in a number of suits with disgruntled -- and unpaid -- contractors of one sort or another, including lawyers.

Please understand: I'm not taking sides. Sometimes people try and take advantage of celebrities. Sometimes celebrities think their fame gives them license to engage in all sorts of anti-social behavior. I don't know, and don't pretend to know, whether Ms. Baker is justified in her refusals to pay.

Looking at the archives of the Detroit News on Lexis, I discovered that the present dispute arises from a 2010 suit filed by Ray A. Smith Painting and Decorating. According to Robert Snell's October 24, 2010 story, the painter alleged that Ms. Baker owed "$15,239.60 for work at her Grosse Pointe home last year, including painting the walls and ceiling of her son's bedroom, replacing a rotten doorsill, removing water-damaged plaster in her living room and other painting."

Ms. Baker did not respond to the suit. She was defaulted. Elisha Anderson's March 21, 2014 story in the Detroit News reported that a bench warrant had been issued for Baker's arrest on account of her failure to appear "at a creditor's examination" in September 2013. The painter's attorneys had pursued post-judgment proceedings trying to collect on the default judgment. In Illinois, we'd call this a Citation to Discover Assets hearing. The bottom line, though, was that -- three and a half years after filing suit -- the painters had not been paid. And this was long after they'd won their suit.

There are a number of lessons here for would-be litigants in small claim cases:

1. For Defendants -- If you are sued, the worst thing you can do is ignore the suit. If you had a basis on which to oppose the claim -- maybe the painters really did do a bad job -- when you allow the suit to go into default, you almost certainly give up your rights to assert that defense, or those defenses. In Illinois, at least, once 30 days have passed after the entry of a default judgment, your 'best' chance to open up the judgment is under §2-1401 of the Code of Civil Procedure. That will be difficult, if not impossible. And, either way, it will be expensive. You'd be far better off to meet the suit head on in a timely manner -- and, if you owe the money, you may be able to work out a payment plan or even a discount.
2. For Defendants -- If you haven't followed my good advice above, and have instead allowed the suit to go into default, and if the case was filed against you in Illinois, interest will accumulate on the judgment at 9% per year. By statute. Non-negotiable. And all the costs of post-judgment proceedings -- such as Citation proceedings -- will be tacked on.
3. For Plaintiffs -- It doesn't matter how 'good' your case is. It doesn't matter how quickly you 'win.' (A default judgment is a win.) It still can take years to get paid. You may never get paid: Ms. Baker presumably has the money to satisfy this judgment -- but the party you sue may not. You can't get blood from a stone -- and you have court costs to pay and perhaps your attorney. Sure, many attorneys take cases on a contingent fee basis -- meaning they don't get paid until you do -- but that typically happens in personal injury cases, where there is a presumably solvent insurer making business decisions on the other side. You might get an attorney to take your collection case on a contingent fee -- but, one way or the other, the attorney's fee is coming from your bottom line. Unless there's a statute or contract provision that allows for it, the other side is not going to have to pay your attorney's fees.

The attorney who is now suing Ms. Baker was engaged after the bench warrant was issued. The first thing he had to do was keep Ms. Baker out of jail. Robert Allen's story in the April 19 Detroit News reported that Ms. Baker's new attorney was also going to sue the painting contractor and attempt to set aside the default on the grounds that Ms. Baker didn't know the suit existed until long after the default was entered. (Failure to obtain service could be a valid basis on which to open up a judgment in Illinois even if §2-1401 grounds are not present. No court can act without acquiring jurisdiction over the defendant; a court obtains jurisdiction over a defendant in a civil case when the defendant is properly served.)

I don't know how Baker's suit fared, but the fees run up by her new attorney were not just for the defense of the painter's suit. (In fact, unless that judgment were opened up, there was nothing to defend in that case at all.) And the TV story suggests that the attorney had negotiated a broader representation agreement with Ms. Baker, signing on to represent her as necessary as a "vice president of operations." So the allegedly unpaid $69,000 fee may well have been reasonable.

But there's still a lesson here for would-be litigants: Beware of mission creep. You think you've hired a lawyer to represent you in a $15,000 collection case -- but, if you ask her to advise you on other matters, you will be (and should be) charged for these additional services. Don't hire an attorney without a clear view of what you want him to do. Do you want the lawyer to negotiate the best possible settlement on your behalf -- or do you want her to fight to the last ditch? One option is far more expensive than the other if you're paying an hourly rate.

People watch Judge Judy and Judge Mathis and other courtroom shows and get grand ideas about how quick, cheap and efficient the justice system is. When a lawyer tries to tell you that things don't work in real life like they do on television, please listen.

Woman sues divorce lawer for failing to advise her that divorce would end her marriage

Several British newspapers -- the Daily Mail, the Daily Mirror, and the Independent, to name three -- are reporting today that a British woman is suing her lawyers for professional negligence (malpractice) because they 'failed' to tell her that getting a divorce would, in fact, end her marriage.

Tomas Jivanda's story in the Independent reports that, among her malpractice claims, Jane Mulcahy charged that her "lawyers failed to regard her Roman Catholic faith and should have recommended judicial separation - a step down from full divorce - as an alternative course of action."

The case did not attract public attention when it was initially dismissed; the story got picked up when the appeal was likewise thrown out.

The story is amusing, another illustration of the idea that people sue for the darndest reasons, and it gives readers something to feel smug about (how could anyone not know that divorce ends marriage? we chortle).

Except, of course, if Mrs. Mulcahy were so devout a Catholic, she would know that even a legal divorce would not end her marriage, not in the eyes of the Church. Perhaps what really upset her was that, once divorced, her ex-husband was free to marry in the eyes of the law, if not the Church -- maybe he did marry -- when a "judicial separation" would have prevented it.

Whatever it might be, there is surely a more accurate explanation for Mrs. Mulcahy's quixotic suit against her divorce lawyers than her (allegedly) not knowing that divorce ends a marriage. The truth probably wouldn't be nearly as amusing; newspapers -- and bloggers -- probably wouldn't be nearly as interested.

But there is a cautionary tale in here for lawyers generally: Clients come to us and tell us what they think they want. Our job isn't just to give them what they ask for, assuming that we can, but to ascertain what they may really want and need. That might not be what they asked for at all. On the Illinois license it says we are attorneys and counselors. Often, we need to be both.

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.

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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)

Popehat addresses the status of bloggers vs. journalists

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

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

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

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

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

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

Here's the key question: compared to what?

* * * * * * *

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

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

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

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

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

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.

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.

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See also, Chicago Fire Department Line of Duty Deaths.

QT post leads to West Virginia weirdness and three interesting stories

An item from Zay N. Smith's June 29 QT post caught my attention:

News Headline: "Lawsuit: Kim Kardashian a terrorist, had sex on tape while unicorn watched."

There is probably an interesting story behind that.

Actually, there are three interesting stories there. Allow me to explain.

Mr. Smith's quoted headline refers to not one, but two suits filed filed recently in the United States District Court for the Northern District of West Virginia.

The "unicorn" matter is Kimberly v. Kardashian, et al., No. 1:12 CV 105. The "terrorist" reference comes from Romano v. Kardashian, et al., No. 5:12 CV 90.

Gino Romano alleges that, just this past June 17, while "deep in the hills" of West Virginia, he stumbled across an "Al-Qaeda Secret Training Camp," organized by none other than Kris Jenner. Plenty of senior Al-Qaeda members were present including, per Mr. Romano's pleading (styled "Preliminary Injunction [/] Temporary Restraining Order"), shoe bomber Richard Reid's cousins and the parents of convicted terrorist "Johnny Walker Lindh."

Mr. Romano claims to have witnessed quite a spectacle: Kim Kardashian, Khloe Kardashian, Kourtney Kardashian, Kanye West, and Bruce Jenner all "plead allegiance (sic) to Al-Qaeda," then burned an American flag and stomped their feet on "Baracks Picture." Then Kanye West performed a concert for assembled Al-Qaeda throng and then everyone "drank Jim Jones Juice" (apparently without any ill effect). Indeed, after the Kool-Aid break, the Defendants were sufficiently refreshed to pitch in with the campers and help dig coal to "get fuel to make weapons of mass destruction" -- all except for Kris Jenner, that is -- she was busy enriching uranium.

Sadly, according to his court filing, Romano was not able to get away cleanly to alert authorities. When Romano was spotted, Kim Kardashian fired a rocket at his head, Bruce Jenner chucked a grenade at him, and Khloe Kardashian tried to behead him. Despite these efforts, Romano got away and filed this pleading.

The Kardashians must have broke camp shortly thereafter, too. At least that's what Jonathan Kimberly says in his pleading (also styled "Preliminary Injunction [/] Temporary Restraining Order").

According to Mr. Kimberly, on June 22, whilst he was whiling away the evening in Room 68 of the Days Inn outside Clarksburg (or was it Bridgeport?) he was disturbed by a "bunch of banging, and sounds of sheep." Kimberly traced the sounds to the room next door, Room 69 (*ahem*). He looked through the peephole and saw "Kim Kardashian, Kris Humphries, and Myla Sinanaj making a sex tape together."

(For those of you who, like me, can't keep track of all the various "personalities" chronicled in the tabloids and their online equivalents, Ms. Sinanaj was apparently linked romantically to Mr. Humphries at one time and is now rumored to be carrying his child.)

And now back to our story: According to his pleading, Mr. Kimberly thought the situation, as viewed through the peephole, was a trifle weird. What struck him as weird was not so much the alleged activity engaged in by the human occupants of the room or the presence of recording equipment (including, apparently, a tripod and a 'cannon') that was "E! Network stamped and sealed," but rather the presence of a menagerie: in addition to the aforementioned sheep, Kimberly alleges, there were two goats and a unicorn.

Things really got strange, Kimberly says, when Charlie Sheen showed up with a bag of "Esctasy." Kimberly wound up with Mr. Humphries pointing a shotgun at his head (one he obtained from fellow Net Jayson Williams) and forced to watch for five hours as the sex tape was made. And he was forced to watch reruns of "Keeping Up with the Kardashians" for another six hours after that. He says he wound up a broken wrist, violated, humiliated and unconscious, finally waking up at a truck stop, his wallet gone, and Kardashian lipstick all over his clothes. Naturally, in his view at least, he too needs protection.

The common titles of the pleadings and the choice of defendants and venue are not the only similarities between them. The consecutive chronology raises questions. Moreover, while both documents are riddled with spelling errors, the names of all those prominent in Tabloid America are spelled correctly, meaning that the drafters could spell when it suited their purposes. And both pro se plaintiffs seem to have gone to the ALL CAPS SCHOOL OF PERSUASIVE PLEADING. All these similarities would seem to reduce the chances that these pleadings were coincidental matters filed by two unrelated (and perhaps mentally disturbed) individuals.

Thus, in addition to the very interesting stories of Messrs. Romano and Kimberly, a third interesting story is suggested, namely, what sort of sanctions will be imposed on the fraternity brothers that concocted these papers. Rule 11 may be only the starting point. I don't practice in the area of criminal law, but I have to wonder if the authors of these tales may also be subject to criminal prosecution.

The Intelligence Community protects our privacy from an overly inquisitive Senate

I only wish QT's Zay N. Smith was making this stuff up:

We Have Seen the Present, and It Does Not Work:
The National Security Agency has refused to tell two U.S. senators how many Americans it is spying on because that would "violate the privacy" of the Americans being spied upon.

Sadly, Wired.com's Danger Room blog confirms Mr. Smith's item... even providing this link to a .pdf copy of a June 15 letter to Senators Ron Wyden (D. Oregon) and Mark Udall (D. Colorado) from I. Charles McCullough III, the Inspector General of the Intelligence Community. (Intelligence Community. Community. Doesn't that sound entirely benign?). Here's a relevant excerpt:



Clearly, the government is concerned about our privacy. Except when they want to invade it. Don't you feel better now?

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UPDATE: More commentary at Lowering the Bar.

Keeping your Durkins straight

There's been a lot of news lately about Chicago attorneys named Thomas Durkin of late. One of these (the one at right) is among the attorneys representing the NATO-3, the three out-of-towners picked up during the recent NATO Summit on state terrorism charges.

The CBS Chicago website refers to this attorney only as "Thomas Durkin," as does the ABC7 website.

But, although it did not do so originally, the Chicago Sun-Times has begun referring to this attorney as Thomas Anthony Durkin. As far as I can tell, the Chicago Tribune has referred to this attorney as Thomas Anthony Durkin right along.

The use of the attorney's middle name is important because another Chicago attorney named Thomas Durkin -- Thomas M. Durkin, a Mayer Brown partner, was recently nominated, just last month, to the Federal bench in Chicago.


That's Thomas M. Durkin, above.

Regular readers of this blog are, by definition, assumed to be sufficiently sophisticated to make this distinction between Durkins. But U.S. Senators may be more easily confused. Consider this, then, a public service.