JANUARY 2019 CBA

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www.chicagobar.org/careercenter CBA RECORD CONTENTS January 2019•Volume33, Number1 6 Editor's Briefcase The Art of Optimism INSIDE THIS ISSUE 8 President’s Page 32 The Proper Use and Application of the Sole Proximate Cause Defense Collegiality and The Bar By Judge Janet Adams Brosnahan 12 CBA News 36 Flash Fiction 24 Chicago Bar Foundation Winners of the CBA Record’s First Flash Fiction Creative Writing Contest Report

26 Murphy’s Law YOUNG LAWYERS SECTION 52 Legal Ethics Why Lawyers Practice Law 44 Protecting Your Family By John Levin By Brandon E. Peck

54 Summary Judgments 46 Defense Tools to Preclude Forum Shopping Reviews of Diane Redleaf’s They ByStevenA.Montalto Took the Kids Last Night and the CBA’s 95th Annual Bar Show 48 The Voluntary Dismissal: Getting it Right By Neil P. Johnson

JANUARY 2019 CBA On the Cover This month’s CBA Record cover The CBA Record (ISSN 0892-1822) is published seven times annually (January, February/March, April/May, July/August, artist, Caroline Eui-Kyung Kim, is a September, October, November) for $10 per year by The Chicago third-year law student at The John Bar Association, 321 S. Plymouth Court, Chicago, Illinois 60604- Marshall Law School, and a law 3997, 312/554-2000, www.chicagobar.org.Subscriptionsfornon- membersare$25peryear.Periodicals postagepaidatChicago, student member of the CBA. Illinois.POSTMASTER:SendaddresschangestoCBA Record,c/o Kayla Bryan, Chicago Bar Association,321SouthPlymouthCourt, Chicago,Illinois60604.

Copyright 2019 by The Chicago Bar Association. All rights reserved. Reproduction in whole or in part without permission is prohibited. The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. All letters to the editors are subject to editing. Publication of advertisements is not to be deemed an endorsement of any product or service advertised unless otherwise stated. CBA RECORD EDITORIAL BOARD EDITOR’S BRIEFCASE Editor-in-Chief Justice Michael B. Hyman    BYJUSTICEMICHAELB.HYMAN,EDITOR-IN-CHIEF Associate Editor Anne Ellis     Summary Judgments Editor Daniel A. Cotter It’s said that a life that touches others goes on forever.     The life of CBA member Arthur S. “Butch” Gold deeply touched mine and many more YLS Journal Editors-in-Chief during his 77 years. Art died in October after a short illness. I write about Art because he Natalie Chan was that rare individual whose very presence enriched the world for those around him.   Because his passion for life and humanity shone through whatever he did. And because Daniel J. Berkowitz   his personality radiated genuine warmth that uplifted all who came into his sphere. Art loved the CBA, and hardly missed a major event. Among his leadership roles, Art Carolyn Amadon served on the Board of Managers, as co-chair of the 2006 commemoration of the 60th Jonathan B. Amarilio anniversary of the Nuremberg War Trials, and as one of the chairs of the CBA’s Human      Ali Ammoura Rights Committee in its inaugural years.      To know Art was to never, ever, forget him. He embraced life fully, deeply, and com- Amy Cook pletely, with a mix of adventure, fun, hopefulness, confidence, and a smile‒always, a    smile. A relentless and skillful advocate, Art maintained the highest ethical standards, Nina Fain      and turned many an opposing lawyer into a friend. Anthony F. Fata       Indefatigable Spirit Clifford Gately Here’s a glimpse of Art’s indefatigable spirit. A few years ago, I was sitting with Art at a   table along the perimeter of Captain Morgan’s outside of Wrigley Field. A father and his fl Jasmine Villa or Hernandez young son happened by. Art stopped the boy to admire his glove and ball. After small      Lynn Semptimphelter Kopon talk, Art asked if the boy knew who Art was. No, replied the boy. ”Well, I used to play    ball. A long time ago. I was pretty good too,” Art responded. “Want my autograph?” The John Levin boy immediately thrust the ball to Art. As the boy and his father walked away, I asked Kathryn C. Liss Art whose name he had signed. “My name, of course.” But, Art, I said, you didn’t play         professional ball. That kid thinks he has a ball signed by some hero of yesteryear. “I didn’t Bonnie McGrath say I played for the Cubs” smiled Art. “Besides, I made the kid happy and he now has      an authentic Gold ball.” Clare McMahon Art practiced law (and lived) undaunted by the obstacles that life presents, most likely      due to an innate, cheery, and fearless optimism that nothing could shake or dim. Art’s Pamela S. Menaker characteristic optimism knew no limits. He expected to win every motion, every case,    Peter V. Mierzwa and every appeal; but when he didn’t, he never showed bitterness or regret, nor did he     sulk or hang his head or blame others for his fate. Befittingly, a sign in Art’s office read, Kathleen Dillon Narko “Persistence and determination alone are omnipotent.”      Art’s effervescent outlook included his beloved Cubs. He truly expected the Cubs always Adam J. Sheppard would come out victorious. A loss meant a momentary setback; they’d win next time.     Not much rankled Art, except injustice, inequity, and incompetence, for which he had Nicholas D. Standiford no tolerance.       Four years ago Art fought a nasty cancer with all that he had. He wouldn’t let it affect Richard Lee Stavins      his attitude. At the time he wrote, “Being confronted with the ‘C’ word can be a frighten- Judge E. Kenneth Wright, Jr. ing, anxiety-producing episode in one’s life. It need not be.” Throughout his treatment,      he stayed upbeat and seemingly unfazed, letting every dark cloud pass without a care Rosemary Simota Thompson because he felt certain that in time, it would. He beat cancer. William A. Zolla II A couple of weeks before he died, his family e-mailed a picture of Art, sitting in his     hospital bed, wires and tubes running everywhere, with Art, wearing a big grin while THE CHICAGO BAR ASSOCIATION giving the thumbs up sign. David Beam Art was a master at optimism, and he instilled within me his infectious brand of opti-    mism. And why not? For Art understood what too many of us fail to grasp: optimism is Rebecca Martin far more powerful than despair, far more healthy than anger, far more constructive than      fear, and far more productive than unhappiness.

6   HOW DO YOU TURN A LIFE’S DREAM INTO A LEGACY?

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Wealth Management is offered through First Midwest Bank. Most Wealth Management products are not FDIC insured. The Chicago Bar Association PRESIDENT’S PAGE www.chicagobar.org BYSTEVENM.ELROD OFFICERS     President Steven M. Elrod participation in our Association. This is Holland & Knight LLP evident throughout the year and is reflected in the extraordinary level of services that First Vice President members provide to the legal profession, to Jesse H. Ruiz our community, and in all of our social pro- Drinker Biddle & Reath LLP grams and numerous YLS-sponsored events Second Vice President and receptions. Good things happen when Maryam Ahmad lawyers come together, and nowhere does CookCountyState'sAttorney'sOffice that statement ring more true than with the Secretary CBA’s many programs and services. E. Lynn Grayson Collegiality, the relationship that we have with our colleagues, is based on Nijman Franzetti LLP mutual acceptance of a common purpose, Treasurer respect for the abilities of others, and shared Timothy S. Tomasik responsibility for creating a productive Tomasik Kotin Kasserman LLC work environment. Although a number of Executive Director ollegiality is one of the “Three factors determine one’s success or failure, Terrence M. Murphy C” goals on which I have been collegiality is essential to sustain us in our focusing this year‒the other two work regardless of whether we are work- Assistant Executive Director C being Civic Education and Civility. For ing in private practice, government, the Elizabeth A. McMeen me and for many of our colleagues, col- corporate sector, or in service to the legal BOARD OF legiality underpins the practice of law. It profession or to the community. It is the MANAGERS enhances productivity, builds professional cornerstone of professional work and is Jonathan B. Amarilio and personal relationships, and leads to indeed the X-factor that determines not just Alan R. Borlack friendships that last a lifetime. In many our success but the success of our enterprise. Judge Thomas M. Durkin ways, it defineswhoweareandhowweare For lawyers, bar associations are the Sharon L. Eiseman perceived by our fellow lawyers, our clients, perfect vehicle to provide their most useful Mark B. Epstein our friends, and by the world outside of the service to the law, the administration of jus- Nina Fain legal profession. Although collegiality is tice, and the public. Collegiality, spawned Hon. LaShonda A. Hunt often taken for granted, many of us know from knowledge and friendships among professionals, is essential to the success of Michael J. Kaufman all too well that there is a growing lack of collegiality in the profession. The practice every CBA-sponsored program and activity. Hon. Diane Joan Larsen of law requires constant attention to every My goal this year is to enhance our Lori E. Lightfoot facet of representation, and collegiality is membership experience through the provi- Kathryn Carso Liss especially important in our everyday con- sion of substantive and recreational activi- Hon. Thomas R. Mulroy duct and interaction with others. ties that increase our interaction with each Matthew A. Passen When the Chicago Bar Association was other. We have a magnificent headquarters Brandon E. Peck organized in 1874, the following purposes building on Plymouth Court. With the Mary Robinson were enumerated in its constitution: help of our Member Services Commit- Federico M. Rodriguez • To maintain the honor and dignity of tee, we are examining ways in which the John C. Sciaccotta the profession of the law; and use of our building can be expanded by Adam J. Sheppard • To cultivate social intercourse among members during and after business hours Helene M. Snyder its members. for both social and business purposes. Stay Greta G. Weathersby I’m especially proud that collegiality has tuned for new, innovative uses of the CBA Zeophus J. Wiliams and continues to be a hallmark of member Headquarters.

8   The CBA’s 95 general bar committees mittee meetings. Indeed, my fear is that and 27 young lawyer committees provide we may have things too easy! Remote and SOLO/SMALL FIRM RESOURCES our members an outstanding opportunity virtual participation in committee meet- to interact with other lawyers who share ings tend to prevent the synergy and good The CBA has a free resource portal for solo small a multitude of practice interests. Com- will that is created with direct, in-person firmmembers.Accessarchivedprogramsonfirm mittee participation is the lifeblood of contact. In the spirit of promoting colle- our Association, and more than 6,500 giality, but still providing the convenience marketing, start up tips, legal software demos, members serve on one or more CBA com- and efficiencies of webcasting, I have mittees. Most CBA committee meetings requested all Committee Chairs to make client development and more. Go to www. feature substantive speaker presentations at least one meeting each year (preferably that qualify for MCLE credit. Signifi- chicagobar.org or call 312/554-2070. the first meeting of the year) an all hands cantly, there is no additional charge or fee on deck, in person meeting, while allow- for membership on Chicago Bar Associa- assist in planning, and speak at, general ing web-streaming for all others. My hope tion committees, and for participation in and specialized Continuing Legal Educa- is that this will create a healthy balance and attendance at any and all CBA com- tion seminars; (4) volunteer to mentor new between these two legitimate, but some- mittee meetings. members, law students, at-risk children in times competing interests. With our enhanced technology and the Juvenile Court, or to serve as a tutor/ state-of-the-art web broadcast system, the The opportunities for our members to mentor through the Lawyers Lend-A-Hand CBA has made committee participation engage with each other at the CBA and to Youth Program; (5) participate in the extremely easy. All CBA Committee meet- enhance their professional and personal Association’s Lawyer Referral Program ings are live-streamed over our website so lives are almost endless. Through the and help provide low-cost and pro bono that members can observe and even interact committee structure, members can (1) legal services to the public; (6) participate in committee presentations and discussions build a better body of laws by reviewing in community education and community directly from their laptop or desk at their non-sponsored legislation and drafting service programs, such as our Restorative office or home. Thousands of our members new legislation to improve state and federal Justice Training Programs in Chicago take advantage of our web streaming every law; (2) propose amendments to Circuit, schools; and (7) participate in our Lead- week, and of our library of recorded com- Appellate and Supreme Court Rules; (3) ership Institute that provides leadership

The Chicago Bar Association CLE in Jerusalem, Israel April 1-4, 2019 Pre-conference excursion to Amsterdam, Netherlands March 30-April 1 Post-conference optional travel to Tel Aviv, Israel April 5-7

To receive an agenda and travel information in the Fall, send an email to Tamra Drees at [email protected].

  9 Look for more to come on these innovations! like flying our flag. It is who we are. It CREDIT CARD PROCESSING I leave you with a comment from Steve is what unites us as an organization and WITH LAWPAY Platt, a longtime member and friend who gives us pride in belonging. It reminds us has been active in the Association and of the good we do together and the good LawPayprovidesattorneyswithasimple,secure, the CBA Bar Show for many years. Fol- we aspire to, both as individuals and as a lowing the final performance of the 2018 group. It encourages collegiality and self- and online way to accept credit cards in their Bar Show this December, Steve made the deprecating humor that is all too often practice.CBAmemberswhosignupforaLawPay following observation about the benefit of lacking in the practice of law.” account will get their first 3 months free. participating as a cast member in, and as Let’s find ways to interact more, engage an audience member of, the Bar Show: better, and spend time together in 2019 Tolearnmoreortogetstarted,visitlawpay.com/ “The show is a living, breathing at the Bar Association. Best Wishes for a cba or call 866/376-0950. embodiment of our Association. It is happy and collegial New Year!

training and opportunities for rising stars Intersection of Disability Rights & Human Trafficking at Chicago law firms. Further, for members Tuesday, January 29, 3:00 5:00 pm • MCLE Credit: 2 IL MCLE Credits with theatrical or musical talent, there are opportunities to get involved in on stage- Presented By: Human Trafficking Committee performance and entertainment commit- Thisseminarwilldiscusshowindividualswithdisabilitymaybevulnerabletohumantrafficking,howvictimsof tees such the Bar Show, the CBA’s Barrister Big Band, the CBA Symphony Orchestra, humantraffickingmaydevelopdisabilitiesasaresultoftheirexploitation,andhowtousedisabilitiesrightslaw and the CBA Chorus. toservethispopulation.Ourdistinguishedpanelistswilldiscusshowtoleveragemulti-disciplinarypartnerships This year, I am working on programs to and various stakeholders to protect victims and seek various forms of relief. expand beyond the traditional CBA forms Speakersinclude:LydiaSharp,RepresentativePayeeMonitor,EquipforEquality;JaeJinPak,IllinoisSelfAdvocacy and methods of gathering together, which will Alliance,UniversityofIllinoisatChicago;andModeratorCatherineN.Longkumer,LegalAidSocietyofMetropoli- include attorney wellness programs and attor- tan Family Services;Vice-Chair, CBA HumanTrafficking Committee. Reserve your space at www.chicagobar.org. ney team-building exercises and programs.

           

                                                                           

    

10   NOT JUST YOUR GO-TO NURSING HOME LAWYERS

This summer,we set the record for a jury verdict under the Illinois Nursing Home Care Act when we achieved OTHER NOTABLE RESULTS: a $4.1 million result for our client, surpassing the previous record set by our firm in 2006 of $2.9 • $17.7 Million Medical Malpractice/Brain million. Although we are proud of these results and Injury Settlement our reputation in handling nursing home cases, our • $14 Million Medical Malpractice Lung results in other serious injury, accident, and medical Cancer Verdict malpractice matters should not be overlooked. • $10 Million Pedestrian Accident Verdict • $7.6 Million Medical Malpractice We routinely obtain substantial results in medical Postpartum Bleed Settlement malpractice matters and other personal injury • $6.5 Million Record Kane County matters. Recently we achieved a $9 million-dollar Wrongful Death/Trucking Accident medical malpractice birth injury settlement. We have also set the Illinois record for the largest Jones Act • $6.5 Million Birth Injury Settlement settlement of $7.5 million for an injured boat worker.

325 North LaSalle Street, Suite 450 • Chicago, Illinois 60654 • Phone: 312-332-2872 • Toll-free: 877-374-1417 • Fax: 312-332-3112 www.LevinPerconti.com • www.nursinghomelaw.com [email protected] CBANEWS

IT COSTS NOTHING, AND BUYS EVERYTHING Making the Case for Civility

By Clifford Gately CBA Record Editorial Board

llinois Supreme Court Justice Anne Burke, the keynote speaker for the INovember 28 CLE program on civility in the legal profession, opened the program with a quote describing a pervasive “win- at-all-costs mindset” in which ethics are trampled, and “standards, proper decorum, acceptable behavior and the principles of mutual respect…seem to have totally disappeared.” Although incivility in the legal profes- sion is not completely unprecedented, Justice Burke cited a recent National Judi- cial College survey in which 93% of the CBA President Steve Elrod addresses attendees at the November 28 CLE Program. American public agrees that the United States has a civility problem, and nearly (ABOTA) and included a panel discussion True-life examples were also provided by three-quarters of those polled agreed that moderated by Illinois’ National Board audio/visual clips. After several examples is has gotten worse. She observed that the Representative for ABOTA, Timothy of attorneys behaving badly at deposi- current atmosphere may be a reflection of Tomasik. The panel consisted of Cook tions (many of which would have been the world in which we live, including the County Circuit Court Judges Clare humorous, if they weren’t disturbing), the “social media messaging to which we’ve McWilliams and Allen Walker, and attor- panel agreed that attorneys should always become accustomed.” neys Aurora Austriaco and Bruce Pfaff. conduct themselves as though they were The presentation was co-hosted by The panel offered numerous first-hand before a judge, whether or not they are in the American Board of Trial Advocates lessons on how to deal with incivility. a courtroom. The panel agreed that lawyers can and AAA MEMBERSHIP AND DISCOUNTS should ask for the assistance of the court, and possibly for sanctions, when instances CBA members now can save 20% on new AAA membership and you of incivility are abusive or chronic. They also cautioned attorneys to take the high may be able to qualify for additional discounts on your home and auto road and not to react rashly or too quickly policies. This discount is available for Illinois residents only. For more to personal attacks. “If you wrestle with a pig, you’ll both get muddy, but the pig information, call DebraWiese 217-398-3621 ext.514, or email at djwi- will enjoy it,” Tomasik said. Or, as Mary [email protected]. Or, fax the CBA Member Form to 217-398-0170. Wortley Montagu was quoted several times as saying “Civility costs nothing, Please be sure to mention that you are a member of Chicago Bar Association to receive your discount. and buys everything.”

12   rhe Chicago ¡ar Association Your City. Your Hometown Bar Association. It’s Where You Belong.

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Connect with Chicago’s Legal Free Career Help including Community at CBA and Young Lawyers Counseling, Networking, Job Openings Section Business Development and Resume-Building Events and Social Events Free Online Document Library and Give Back and Develop New Skills Work/LifeBalance Resources with CBA Pro Bono and Volunteer Opportunities Individual and Small Group Mentoring Programs for Members Meet Movers and Shakers through the CBA Leadership Institute Develop Your Leadership Skills through the Young Lawyers Section Boost Your Trial Skills and Legal Knowledge at Free Committee Meetings On Demand Video including Legal Tech, (Live Webcast /Free IL MCLE Credit) Practice Skills, Client Development, Judicial Tips and More

Get information on services, member savings, events/seminars, or renew/join at www.chicagobar.org. In Weisberg v. Powell, individually and as Secretary of State,et.al.,417F.2d388(1969),defendantPaulPowell, DiscountedParkingAvailable primarily responsible overseer for the State of Illinois in Near CBA Building withrespecttoprintingballotsandotherelectionfunc- tions,waschargedwithprintingtheballots.Theunderly- CBA members can park for just $9 at the 75 W. inglawprovidedthatpositionontheballotfordelegate Harrison parking garage (enter off Harrison, to the constitutional convention would be in the order offiling.Forthisreason,mostofthecandidateslinedup between Clark and Federal Streets) Monday tofiletheirballotsinperson.However,SecretaryPowell throughFridayforupto12hours(enteranytime informed each of the candidates whom he favored to but must be out by midnight). Just a 6 minute file his or her petition by mail; he then considered all walkfromtheCBABuilding,321S.PlymouthCt., Letters to ballots filed by mail to have been filed simultaneously andplannedto“exercisehisdiscretion”to“breaktheties” Chicago.Thegarageisfullyheatedwithcovered the Editor soastoelevatethecandidateshefavoredineachvoting parking and valet service. send your feedback to: [email protected] district to the top position. To receive the discounted rate, enter at 75. W Ballot Position in Cook County CandidateBernardWeisberg(lateraFederalmagistrate Harrison and push the button at the entry sta- judge) brought an action in the Northern District of In the November 2018 CBA Record, Albert J. Klumpp’s Illinois alleging violations of constitutional and other tion. You will receive 3 tickets (one to validate articleonballotposition(“BallotPositionanditsImpact rights. The court, although apparently troubled, dis- at the CBA for discounted rate, two for the valet onCookCountyJudicialElections:TheEarlyBirdGetsthe missed the action, but plaintiff’s counsel immediately attendants). Be sure to take your parking ticket Term”) brings up statistical and factual analysis. filed an appeal. withyouforvalidationintheCBABuildinglobby. I thought it would be of interest to your readership to The Court of Appeals provided that in those districts Ticket must be validated at the CBA to receive call attention to a leading case on the subject which where the Secretary of State had employed the pro- the discounted rate! Upon returning to the holds as a legal matter that ballot position does indeed cedure assisting the candidates whom he favored, the affect the results of an election. Moreover, it does so in candidateswouldbeconsideredtohavefiledsimultane- garage, hand your valet ticket to the attendant a case wherein the Illinois Secretary of State was the ously and the order on the ballot would be determined toretrieveyourvehicletheninsertyourvalidated first-named defendant and the other defendants were by a lottery. Plaintiff did place first on the ballot in the parkingticketintothepaystation.Paywithcash all of the elected state officers plus the chair of the district in which he ran, and was an influential and or any major credit card.The pay station will re- DemocraticandRepublicanparties.Thecasewasalsoof respected delegate. unusualpracticalsignificance,becauseitinvolvedballot turn your paid ticket to you. Once the attendant position of delegates to the 1970 Illinois constitutional Jack Joseph retrievesyourvehicle,insertyourpaidticketinto convention, the convention responsible for the present Chicago Illinois Constitution. the exit station to lift the gate and exit. Ed:TheletterwriterwasoneoftheattorneysforWeisberg. Monthly parking also available for $260 per monthincluding24/7accesswithinandoutprivi- 10% Lifetime Discount with MyCase leges. For more information, call 312/494-9135.

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14                               

                                                             

              

                         

            

               

     

     CBA REPORTS ON THE FUTURE OF THE PROFESSION Diversity and Inclusion in the Legal Profession: First Steps Toward Change

By Katie Liss and Clare McMahon CBA Record Editorial Board

iversity and Inclusion in the Legal Profession: Steps Toward Change Dwas the topic of a recent Chicago Bar Association CLE workshop held at the law firm of Holland & Knight LLP. The workshop was developed in response to the CBA’s 2018 Report on the Future of the Practice of Law in Chicago (Report) and its recommendations about what lawyers can do to address the continuing challenges of diversity and inclusion in their workplaces. The workshop focused on three areas Program participants discussed issues such as implicit bias, hiring and promotion practices, highlighted in Section III of the Report to and the law school to attorney pipeline. encourage dialogue about and solutions to the challenges of diversity and inclusion ined in the workshop so that all members goals to improve diversity and inclusion within the law: (1) implicit bias, (2) hiring have a framework to discuss the future was useful, but that we needed to be more and promotion practices, and (3) the law of the legal profession and how issues of aware of stereotyping and labeling people, school to attorney pipeline. The workshop diversity and inclusion affect their work- as the term “bias” could have a negative format included presentations on each of places and the courts. connotation. It seemed clear to the par- the above areas by a distinguished faculty: ticipants that we need to have more educa- Judge Thomas Mulroy, Dean Jennifer Roundtable Discussion Topics tion about this topic and work in a more Rosato Perea, and Dr. Anna Kaatz. Identify implicit biases about diversity and productive manner about a sensitive topic. The presentations were followed by inclusion to help workplace leaders design a Additionally, individuals thought diversity circuits of three different breakout sessions strategic plan to make real change in today’s and inclusion issues could be eradicated fi led by roundtable discussion leaders Jessica rms and organizations. in time as a younger generation of lawyers Bednarz, Daniel Cotter, Daissy Domin- CBA participants understood that is more inclusive in its work and family guez, E. Lynn Grayson, Katie Liss, James everyone has implicit biases. It’s a matter of circles. However, the question arises as to McKay, Emily Roschek, and Lara Wagner. making yourself aware of these biases and how to accelerate this important change The breakout sessions encouraged audience understanding which ones are harmful to in perspective and make the vocabulary involvement and elicited input about the others. Therefore, participants wanted to surrounding diversity and inclusion less issues raised by the faculty to add more learn more about the concept of implicit pejorative (e.g. biased, prejudiced, etc.) to diversity and inclusion in their workplaces. bias. They noted that workplace training encourage people to examine their implicit As the discussion leaders moved around the they have been involved in has not dealt belief systems. room, working with each table, partici- with the topic of implicit bias. Only a few pants helped them compile comments to participants had taken a frequently used Implement a more progressive hiring and fi be reported to the body. Those findings will assessment test found on Harvard Univer- promotion system within law rms and the also be published in an online whitepaper sity’s website (www.implicit.harvard.edu). judiciary to advance diversity. for CBA members. Many participants stated that implicit CBA workshop participants noted The workshop proved to be a valuable bias is something that is learned at home that the Mansfield Rule, which requires tool for our members and is a format that and is culturally determined at a young that women and minorities make up a can be replicated in workplaces. Below is a age. Regarding implicit bias in the work- minimum of 30% of the candidates for restatement of the three topic areas exam- place, participants stated that setting “leadership and governance roles, equity

16   partner promotions, and lateral positions” according to a June 7, 2017 press release ATTENTIONLAWSTUDENTMEMBERS REDUCE STUDENT LOAN by Diversity Lab, did not appear to apply to small firms. If so, it raises the question For only $12/year, there is no better way to PAYMENTS THROUGH of what small to midsize firms can actually CREDIBLE do to increase their diversity and inclusion. jump-startyourlegalcareer.Lawstudentmem- Others did not see the Mansfield Rule as a Credible allows Chicago Bar members and their deterrent to the overall goal of increasing bershipoffersyoumanywaystolearnaboutthe diversity and inclusion, but were unclear families to explore ways to save thousands on as to how it really helped. It was also noted that the Mansfield actual practice of law through free seminars, their student debt. With Credible, you can fill Rule is adequate as a goal, but it needs to out one simple form and receive personalized focus on the “right” things. In some ways, networking events, practice area committee its focus appears narrow and impractical in refinancing offers from multiple lenders. Visit a profession with few diverse and inclusive meetings, career resources, and more. Learn www.chicagobar.org, Resources, Member Dis- members (e.g., it would be difficult to reach a 30% leadership goal from a set of firms counts/Savings and click on the Credible link what they don’t teach you in law school! Call with few or no diverse lawyers to promote). to learn about student loan topics, including Other participants noted that the Mans- KaylaBryanat312/554-2135oremailkbryan@ field Rule appears to adopt a certification student loan refinancing, student loan con- strategy to have legal industry employers consider at least 30% women, LGBTQ+, chicagobar.org for more information. solidation, student loan reduction, and student and minority lawyers for significant leader- loan forgiveness. ship roles that had been promoted by the minority and female certification programs to diversity and inclusion. The working used by governments for two decades. The groups asserted that students’ exposure WANTED: CBA MEMBER EMAIL inherent flaw of the Mansfield Rule is that to positive role models who were lawyers absent client support for such efforts, law in the community would inspire students ADDRESSES to apply to law schools, and that training firms and law departments have no serious By providing us your email address, you will: motivation to proceed. students on what they could expect in law school, including challenges related to –Receive the CBA e-Bulletin every Thursday Increase the diversity of law students by using gender and race, would help them navigate containing a list of the following week’s com- criteria beyond traditional GPA and LSAT the rigorous curricula and cultures found scores to advance inclusion and diversity in in law schools. mitteemeetingsandspeakersnotingfreeMCLE student bodies and ultimately in the practice credit, upcoming seminars, networking events of law. Conclusion Most CBA participants agreed that The workshop, which all participants and important news about the Association. deemed a tremendous success, showed to increase the diversity of potential law –Receive timely notices of your committee students in the academic pipeline, men- that the future of the profession is bright. toring junior high school and high school However, a multi-level approach to creat- meetings, topics and speakers. students was an effective way to attract ing change is necessary to assure the diverse –Cut down on the amount of mail and faxes diverse students to the legal profession. growth of our profession. The legal profes- When students are the first generation to sion must develop initiatives that help law the CBA sends. attend professional school, it helps to have students, lawyers, and judges acknowledge Tonotifyusofyouremailaddress,call312/554- mentors and alumni encouraging them their implicit biases and move forward to to attend. Additionally, as many students rethink and reshape the identity of the 2135 or send an email to [email protected] are part of a first generation of students in profession in a changing workplace and includingyourname,phone,emailaddressand higher education, they could benefit from broader world environment. Only then CBA member number. Please note that the CBA financial support from firms and other legal can we achieve diversity and inclusion entities that want to increase their diversity goals with the hope that our workplaces doesnotprovideorsellmemberemailaddresses will reflect the society in which we live, numbers. tooutsideentitiesnorwillwebombardyouwith Participants also believed that that without the use of artifices to help us having alumni interview law school appli- achieve our goals. unnecessary emails.Thank you! cants also demonstrates a commitment

  17 CBA CLE PROGRAM“WRITING FOR YOUR AUDIENCE” A Mindful Approach to Legal Writing

By Anne Ellis ness and clarity, but being more mindful The program also offered advanced strat- CBA Record Associate Editor about writing also means recognizing there egies for writing strong leads, editing may be a time for passive voice. Thus, it effectively, and proofreading. For the lead ot all lawyers fully embrace the may be more strategic for a defense lawyer (itself a journalism term), a journalistic concept of mindfulness in the to write, “The dog was hit by three shots,” mindset will help eliminate non-essential Npractice of law, but Prof. Kathleen rather than “My client pumped three slugs preliminaries and ensure that the writing Dillon Narko reminded participants in a of lead into Fluffy.” doesn’t bury the main point. After drafting recent CLE program that all lawyers would Moving on from these fundamentals, is complete, effective editing is as crucial do well to be more mindful in one crucial Prof. Narko observed that while good to the final product as the draft itself. How area of their profession: writing. legal writing must be concise and clear, much time to devote to editing? Ideally, Lawyers communicate most often in it can also be engaging and elegant. How “as much time as it took to write.” This is writing. Whether the audience includes to do this? The essentials include varied not always possible, but a good editorial clients, courts, or colleagues, Prof. Narko sentence structure, voice, tone, pathos, review will take place in layers, focusing gave practical advice for how to make any and applied storytelling. She also raised separately on the lead/thesis paragraph; written communication more clear, concise, the question of whether the esthetic qual- the conclusion (does it match the road- and well-organized. ity of elegance found in great briefs and map in the thesis?); paragraph structure; Numerous before-after examples and opinions is necessary for all good legal transitions between issues; conciseness at alternatives debunked the belief that dense, writing. Time, of course, is a factor to be macro and micro levels; clarity; citations verbose writing is necessary in legal writing. weighed here, which again points to the (if applicable); and, finally, proofreading. The program was far from a dry rehash of issue of mindfulness in legal writing. The program concluded with some grammar–in fact, none of the examples pre- The program then turned to another timely thoughts on language change (e.g., sented were grammatically incorrect. What essential for clear writing: organization. pronouns and gender neutrality), with a all had in common, though, was that they Seasoned and novice lawyers alike often recommendation to “write for your audi- demonstrated the power of well-chosen struggle with structure. Prof. Narko offered ence,” which in the legal sphere is typically (one might say, mindful) words. the TREAC system as a starting point to more conservative. Many practitioners are embracing a help attorneys structure their analysis (see Recommended resources went beyond more direct, journalistic style of writing. Oct 2004 CBA Record). TREAC is an Strunk & White’s classic “Elements of This is all to the good, says Prof. Narko, updated version of the IRAC tool (issue- Style” and included legal-specific works, because one goal should be to “make it easy rule-application-conclusion) and stands particularly Richard Wydick’s “Plain Eng- on your audience.” A bonus of writing more for: T:Topic sentence; R: Rule; E: Explana- lish for Lawyers.” concisely is that it often leads to greater tion; A: Application; C: Conclusion. clarity. Just a few tips include: eliminate TREAC’s simple structure for legal The program is also available as a “there is/there are”; “it should be noted arguments can accommodate sophisticated that”; nominalizations (verbs masquerad- issues. And after drafting is complete, CBA CLE on-demand webinar. Go ing as nouns); and puffed-up words such as performing a “TREAC check” will help to www.chicagobar.org for more “utilization.” Writing in active voice rather determine whether arguments are direct information. than passive usually achieves both concise- and straightforward.

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18             

         

         

             

                           

                                              

          

                   

                        .         JUDGES REPORT SUBSTANTIAL CHANGES FOR NEW YEAR Eight O’clock Call Covers Domestic Relations Division Issues

By Lynn S. Kopon CBA Record Editorial Board

he Chicago Bar Association’s payer and had to be claimed as income lead to promises unkept by others. Other Eight O’clock Call on January 3 by the payee. The new law eliminates the lawyers stated that the number of over- Thighlighted the Domestic Rela- deduction and the obligation to report nights between the parents can result in tions Division. As with other sessions in income. This will have an impact on high- significant disruption for the children. this series, it was a timely, valuable and income taxpayers (who are well advised, as Judge Carr noted that although the cal- interactive session in Courtroom 1307 of always, to consult with a tax attorney). culations are indicated in the statute, no the Daley Center. Presided over by Judge statutory mechanism enforces the promises Kenneth Wright, Jr., the session also fea- New Spousal Maintenance Calculations of overnights that are made in court. Some tured Presiding Judge Grace G. Dickler, The calculation of spousal maintenance has cases may have a reckoning at the end of the Judge Robert W. Johnson and Judge John also changed beginning in 2019. Under year. Judge Johnson gave an example of a T. Carr. Approximately 45 practitioners prior Illinois law, maintenance was calcu- party who kept a very detailed log regarding attended. The atmosphere crackled with lated by subtracting 20% of the recipient’s the child visitation times, which facilitated a spirited exchange as the lawyers learned gross income from 30% of the payer’s gross a financial adjustment at year-end. about the impact of recent changes in the income, with a cap equaling 40% of the law and the judges heard about the lawyers’ parties’ combined income. Under the new Guidelines for Acting in Domestic experiences with those changes. law, 25% of the recipient’s net income is Relations Court Judge Wright asked questions of the subtracted from 33.33% of the payer’s Judge Carr observed that people are panelist judges and also took questions net income to determine the amount of expected to act in Domestic Relations from the assembly. Questions focused on maintenance. Judge Johnson noted that Court as they would in life generally. Three changes in the Domestic Relations Divi- with the current calculations based on principles include: (1) Act always in the sion and practical inquiries about work both parents’ income, it is possible to use best interests of their child, which among in this area, information that benefitted tables to determine a pro rata share for other things requires that the parents work lawyers who are in the trenches of this child support payments based on where out visitation issues between themselves; practice. the income is, how many children are in (2) If the parents can’t resolve their issues, Presiding Judge Dickler’s opening the family, whether the child is receiving the attorney should help them, always remarks explained that this Division has other supplemental benefits, and how guided by the best interests of the child; undergone many changes. Among other many nights each parent has custody of and (3) If the parties cannot resolve their changes, the former “Parentage Court” the child (“overnights”). differences, the judge will tell them what has been integrated into the Domestic Judge Dickler asked the lawyers how to do. One lawyer noted that the statu- Relations Division, which now includes all this affects their practice. One lawyer noted tory overnight system may not be the best Domestic Relations matters including par- that it makes support enforcement more solution because many people are unable entage and child support. Issues involving efficient, with less resistance to paying the to commit to 146 overnights due to work children born outside of marriage receive income sharing, calculated child support. demands. However, this does not neces- the same considerations, forum, judges, The income sharing provisions provide sarily mean that the parent cannot spend a and facilities as children born within a that if a parent spends more than 146 significant amount of time with the child. marriage. overnights with the child per year, this Judge Dickler asked whether judges A highly relevant part of the discussion could reduce child support payable under are applying the new state maintenance concerned recent tax law changes brought the calculation. This encourages a parent law in a fair and reasonable manner. One about by Public Act 100-923, effective to spend more time with the child, which practitioner replied that judges are not January 1, 2019. Prior to this law, alimony may have positive consequences for the always addressing the threshold question to a divorced spouse was deductible by the child, according to one practitioner, or of whether maintenance was appropriate

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            in the first place. Instead, she believes, they         are jumping right to the calculation, even         when maintenance might not be indicated        by the facts. Judge Dickler reminded the      practitioners that everyone should be       watching the new statute to see if it works.      Judge Carr noted that Domestic Relations              judges must look to what is fair, and if the judge deviates from the statute, this devia-           tion must be explained.       Judge Wright asked the judges if they         had any pet peeves regarding practitioners       who appear in front of them. Although         the panelists did not volunteer a lot of           information in response, Judge Johnson      did note that many lawyers don’t follow             the rules of evidence, which is not good practice.            Judge Wright asked what are the           prevalent cases and statutes that everyone            must have in their arsenal. Judge Dickler reminded everyone that there are many,        many appeals in Domestic Relations             matters each year. It is imperative that we     keep up with the cases and the law. Every                    life is different, noted the judge, and the            Domestic Relations Call is life.

  21 CLE & MEMBER NEWS The CBA is your local spot Free MCLE Credit Tracker for MCLE

s a CBA member benefit, our MCLE entered into the MCLE Credit Tracker. CreditTracker automatically com- Credits for attendance at CBA committee Register for a Seminar Today Apiles credits earned at accredited meetings are generally posted within two 312/554-2056 seminars and committee meetings pro- weeks of the meeting. Credits for atten- www.chicagobar.org duced by the CBA and the CBA Young dance at seminars are posted by the 15th Lawyers Section. Special features include: day of the following month (For example: –CBA Certificates - Print certificates for credits earned at a March 3rd seminar will CBA seminars and committee meetings. be posted by April 15th).The MCLE Credit Enhance Your Resume, –Credit Summary and Reports - View all Tracker is located at www.chicagobar. Expand Your Contacts, credits currently stored in the system for org, under the Education tab. If you need your account. assistance regarding your CBA MCLE Make New Friends –Non-CBA MCLE - Input credits earned at credits, please email [email protected]. y getting more involved in the non-CBA sponsored programs. For general information on MCLE require- CBA, you can raise your profile Credits earned at CBA committee ments and rules, please visit the MCLE Bin Chicago’s legal community meetings and seminars are automatically board website at www.mcleboard.org. and meet other lawyers whose paths you may have never crossed. Even a small time commitment can reap Dues Assistance Available big rewards. These are just a few educed dues are available for If you do not wish to renew for this mem- examples of speaking, networking, unemployed members and those bership period, please call 312/554-2135 leadership and other opportunities Rwith financial hardships. Call or email [email protected] to resign available through your CBA mem- 312/554-2131 or see the dues hardship your membership and avoid reinstate- bership. application form at www.chicagobar.org. ment fees in the future. –Speak at a seminar, committee For dues installment plan, call 312/554-2020. meeting or community event –Write an article for the CBA Record –Become a legislative liaison Web Highlight: Save Money on CBA Member Discount Programs –Evaluate judges through the CBA's ave on Lexis, client credit card pro- discount providers.These programs have Judicial Evaluation Committee cessing, virtual office receptionists, been negotiated to offer you savings and –Volunteer for a pro bono project Sstudent loan rates, car rentals, UPS, special offers as a value-added benefit of –Help out at a YLS community out- magazine subscriptions, legal software your CBA membership. Make the most of reach project and more. Visit www.chicagobar.org, your membership investment and check –Do something fun...play in the CBA Resources, Member Discounts/Savings out these savings. Symphony, sing in the CBA Chorus, for more information and links to our perform in Christmas Spirits (the CBA holiday show), or help produce a legal cable TV show For more information on these opportunities or to learn how to become more involved in the CBA, contact CBA Membership Director Karen Stanton at 312/554-2131 or [email protected].

22         

                                                                                                                      .                                                                                                                                                                                                                                                                                                                 

                                          

                                    

              

 Chicago Bar Foundation Report

TheBattleOverCyPresAwards By Bill Boies and Rebecca Finkel, McDermott Will & Emery LLP

[There is a] fundamental concern surround- distribution of residual funds in state brief in support of cy pres awards. ing the use of such remedies in class action court class actions (735 ILCS 5/2-807). litigation, including when, if ever, such relief Many other states have similar statutes or The Cy Pres Doctrine Works Well In Class should be considered; how to assess its fairness court rules. For federal court cases, cy pres Action Settlements as a general matter; whether new entities may awards as part of Rule 23 settlements find The cy pres doctrine arose in the context of be established as part of such relief; if not, broad support from class action plaintiff estates and trust law, as a rule of construc- how existing entities should be selected; what and defense counsel, the American Law tion to save a testamentary gift that would the respective roles of the judge and parties Institute, and the federal courts. Legal aid otherwise fail. The term “cy pres comme are in shaping a cy pres remedy; how closely and access to justice organizations like possible” means “as near as possible” in the goals of any enlisted organization must The Chicago Bar Foundation (CBF) rely legal French, and the doctrine allows correspond to the interests of the class; and so on these awards as an important source courts to direct bequests to a purpose close on. This Court has not previously addressed of funding. to the purpose of an original impossible any of these issues. Opponents of these cy pres awards (who bequest. In class actions, the courts have –Chief Justice Roberts in a statement are, in reality, often opponents of class adopted a similar approach (endorsed by released with the order denying the cer- action lawsuits generally) have been vocal the American Law Institute) to approve tiorari petition in Marek v. Lane in 2014 in their criticism that these awards are not residue distributions for purposes reason- sufficiently tied to the plaintiff class or that ably related to the settled lawsuit. So while n settling class actions, there is a recur- the awards are merely window dressing for different from the trust law setting, cy pres ring practical problem: what to do plaintiff’s attorneys fees. The opposition awards are used in class actions to achieve Iwith undistributed settlement funds? has been particularly fierce for class action equitable results consistent with the cy pres Court-approved awards to legal aid and settlements where there is no monetary doctrine’s origins and continued evolution. other nonprofit organizations, commonly distribution to the class members. In the usual class action settlement, known as cy pres awards, give judges and Congress has considered (but never a settlement fund is distributed to class settling parties a useful procedural device adopted) legislation that would delineate members through a claims process or to solve the problem. or curtail the circumstances in which cy pres check mailing, but some amount often In 2006, the Illinois General Assembly settlements are permissible. The commit- remains because not all class members recognized this principle and created a tees that propose revisions to the Federal can be located and not all file claims or statutory framework that governs the Rules of Civil Procedure also have consid- cash settlement checks–or because the ered but never recommended changes in residual amount is so small that the cost TheCBAClassLitigationCommitteerecentlyjoinedwith Rule 23 addressing the subject. Now, the of distribution would exceed the amount The Chicago Bar Foundation to present a panel discus- Supreme Court is hearing a challenge to cy to be distributed. When further efforts sion on“The Future of Cy Pres After the Supreme Court: pres awards in Frank v. Gaos (the “Google to distribute to class members are not PerspectivesfromAcademia,theBar,andtheBench.”It feasible, courts consistently favor distribut- is available online on the CBA Class Action Committee’s Supreme Court case”). The CBF and seven ing residual funds through court approved home page at www.chicagobar.org. other legal aid and access to justice organi- zations around the country filed an amicus awards rather than reversion of the funds

24   nizations to receive cy pres awards is under increased scrutiny, cy pres awards to legal aid and access to justice organizations pro- vide a recognized and appropriate solution for counsel and the courts when selecting recipients and approving settlements. Legal aid organizations–like the class action device itself–exist to provide broad access to justice. Because of that “access to justice” connection, this one category of cy pres recipients always has interests that reasonably approximate the interests of class members. While many legal aid services do work that parallels particular class action lawsuits, legal aid will always reasonably approximate class actions relief to the settling defendant or escheat to the and a divided Ninth Circuit upheld the by providing access to justice for those in state as unclaimed property. settlement. need of legal help. As a result, federal and While cy pres awards solve a recurring The petitioners in the Supreme Court state courts throughout the country have class action conundrum, the awards have are class members objecting to the settle- long recognized legal aid organizations as been controversial for several reasons, as ment (including Theodore Frank–a cru- appropriate beneficiaries of cy pres distribu- Chief Justice Roberts noted in his state- sader against class action lawsuits). The tions from class action settlements. ment quoted above. For example, any objectors’ briefs argue that the Supreme This principle is the underlying basis class action settlement–like the Google Court should restrict or eliminate cy pres for the statute in Illinois, which is one Supreme Court case–where the plaintiffs’ awards. The respondents are the plaintiffs of 24 states that have adopted statutes attorneys are compensated but not the and Google, who argue that the settlement or Supreme Court rules providing for cy plaintiff class (whose claims are discharged was reasonable and that cy pres awards are a pres distributions to legal aid and access by the settlement) can create poor optics. legitimate settlement device. At the recent to justice organizations like the CBF. For Another concern is the scope of judicial oral argument in the Supreme Court, the more information about the Illinois statute discretion in cy pres situations and the justices seemed divided on the propriety and cy pres awards to support legal aid and propriety of judges (or counsel) selecting of cy pres generally and particularly where access to justice, please see: chicagobar cy pres recipients from institutions with there is no distribution to class members. foundation.org/support/cy-pres/. which they are affiliated or from which But the Court may not decide the cy pres they graduated–which is also an issue in issue; in the oral argument, the justices Conclusion the Google Supreme Court case. focused on the issue of standing to sue The Illinois statute and similar state laws under Spokeo, Inc. v. Robins, 136 S. Ct. The Google Supreme Court Case offer a good roadmap for a fair resolution 1540 (2016)). If Google is not the case for to the problem of undistributed settle- Class counsel in the Google case alleged a Supreme Court cy pres decision, other ment funds. While the Google Supreme that Google had violated Google users appeals in the wings will provide oppor- Court case may not ultimately reach privacy rights; specifically, advertising tunities for the Court to weigh in. these issues, the Supreme Court would pop-ups were uniquely generated based do well to adopt similar principles to on an individual user’s searches. As part Legal Aid Organizations Are Appropriate Cy govern class action residue distributions of Google’s settlement with the named Pres Award Recipients in the federal courts. plaintiffs, Google agreed to pay $8.5 mil- Dozens of amicus briefs were filed in the lion, with $6.5 million going to computer Google case, opposing and in support of cy user education programs and $2 million for pres awards. The amicus brief by the CBF Bill Boies, Rebecca Finkel and Tim Kennedy attorney’s fees to plaintiffs’ counsel–but no and other legal aid organizations suggested of McDermottWill and Emery wrote the legal distribution to class members. Directing that the Supreme Court should recognize aid organization amicus brief in the Google the $6.5 million to cy pres recipients made and endorse the reasonable restrictions Supreme Court case, and Boies and the firm sense; to divide the settlement among already in place for cy pres awards and, have been lead pro bono counsel for the CBF 129 million class members would have importantly, that the Court should recog- and other partner organizations a number of yielded just 4 cents per person. The district nize cy pres awards for legal aid as an appro- other amicus briefs and federal rules submis- court accepted that it was not feasible to priate use of residual settlement funds. sions on cy pres issues. distribute pennies to each class member, At a time when the selection of orga-

  25 standing committees; three members of the Young Lawyers Section; four members from the Past Presidents Committee, two MURPHY’S LAW of whom are past presidents and two of whom must be at-large members of the BY TERRENCE M. MURPHY, CBA EXECUTIVE DIRECTOR Association; and four at-large members selected by the Board of Managers from the CBA’s membership. Under the Bylaws, the immediate past president one year removed from the Board of Managers automati- cally serves as chair of the committee. No member may serve on the Nominating Committee more than twice in five years nor for two successive years. The Nominating Committee will receive nominations for eight board and officer vacancies, which will expire at the Association’s Annual Meeting on Thursday, June 20, 2019. Terms for service on the Board of Managers are two years and com- mence at the Annual Meeting. Members wishing to nominate themselves or another member for an officer or board vacancy may do so in writing or by e-mailing their Congratulations to the cast and crew of the CBA 2018 Bar Show, “Big Little Laws–A nomination to me at the Association, 321 Whodunnit,”which delighted audiences in early December at DePaul University’s Merle S. Plymouth Court, Chicago, IL 60604 or [email protected]. The Bylaws Reskin Theatre in downtown Chicago. This year’s show skewered local and national specify that nominations from the mem- celebrities, much to the delight of the audience. Don’t miss Adam Sheppard’s review bers must be received no later than Tuesday, of the show, which appears on page 56 of this issue. Photo by Bill Richert. March 12, 2019. A general e-mail notice listing the names of the 2019 Nominating on’t miss the Association’s Interna- Mahane Yehuda outdoor market. The pre- Committee with the details and timeline tional CLE program in Jerusalem conference stop in Amsterdam includes for submitting nominations will be emailed D(April 1-5, 2019), with a two-day luxury accommodations, private tours, and to the members in late January. pre-conference visit to Amsterdam (March a special dining experience. For assistance 30-March31) and a post-conference exten- with your travel needs, contact Travel Earl Burrus Dickerson Award Luncheon sion in Tel Aviv (April 6-7). In planning Center Tours at [email protected] or call Save the date and don’t miss this year’s this program, we have received invaluable 312/751-0717. A complete description Earl Burrus Dickerson Award luncheon assistance from Israel’s Consul General to of the CLE in Israel program is available on Tuesday, February 19, in the Grand Chicago, Aviv Ezra, and his staff. We expect online at www.chicagobar.org or contact Ballroom at the Standard Club. The Dick- to have speakers from all three branches of CBA Events Coordinator Tamra Drees at erson Awards were established in 1990 to Israel’s government and special presenta- [email protected] or 312/554-5057. honor lawyers and judges whose careers tions on advances in health science and Members and guests will need to register emulate the courage and dedication of technology. In addition to the four-hour for the Israel program no later than Thurs- Earl Dickerson in making the law the key CLE sessions on Tuesday and Thursday day, January 31. to justice for all in our society. Dickerson mornings (eight hours total of MCLE graduated from the University of Chicago credit), the travel package includes guided CBA Nominating Committee Law School in 1920 and became General tours of Bethlehem, Jericho, Masada, the The 2019 Nominating Committee is in Counsel of Supreme Life Insurance Com- Dead Sea and more. In Jerusalem, walk- formation and will be selected by the end pany in 1921. He became Chicago’s first ing and/or Segway tours will include a of January pursuant to Section 8.3 of the African American Alderman in 1939 and private tour of the Supreme Court, the Association’s Bylaws, which provide for argued the Landmark Case of Hansberry Knesset, visits to the Yad Vashem Holo- a committee consisting of 17 members v. Lee in the United States Supreme Court caust Museum, the Dome of the Rock, selected as follows: five committee chairs in 1940, which successfully addressed the Western Wall, and the acclaimed are randomly drawn from the CBA’s Chicago’s restrictive residential covenants.

26                              

In the Watts Theatre In the Healy Theatre                                                                              at The Theatre School 2350 N. Racine, Chicago IL, 60614

               

                                                     

 

         at DePaul’s Merle Reskin Theatre 60 E. Balbo Drive, Chicago IL, 60605      

                       

                                                                                                                              

      

                   

                     

                                               

            

         

           In November 1945, Dickerson–along eral Lisa Madigan and Steven F. Pflaum Dykema PLLC announced a strategic com- with Irvin C. Mollison, Sidney A. Jones, received the IJA’s Amicus Award. The IJA bination with the Washington, D.C. law Jr., and Loring B. Moore–became the first also presented Recognition of Excellence firm of Loss Judge & Ward LLP and will African American Lawyer members of the in Outreach Awards to the Illinois Latino operate under Dykema…Matthew Case CBA. Mr. Dickerson died in Chicago on Judges Association, Illinois Lawyers’ Assis- and Roman Perchyts have joined Lavelle September 1, 1986, at the age of 95. Tick- tance Program, and to Marshan Allen Law, Ltd.…Mandell Menkes is joining ets for the Dickerson Award luncheon are and the Mikva Challenge for their help in forces with Leavens Strand & Glover… $70 per person or $700 for a table of10. producing the IJA’s interactive video “Your Melvin L. Katten, founding partner of For more information or to make reserva- Future Your Choice,” which informs high Katten Muchin Rosenman LLP, received tions, contact CBA Events Coordinator school students of their rights…Robert the Adler & Sullivan Award from Roosevelt Tamra Drees at [email protected] or G. Markoff was appointed Chairman University’s Auditorium Theatre…CBA 312/554-2057. Emeritus of the National Creditors Bar Board member Nina Fain was elected to CBA Insurance Agency Association…Peter V. Baugher spoke at the University of Illinois Chicago’s African New Zealand’s International Arbitration For the past 25 years, CBA Insurance American Advisory Council. Centre on “Cross-Border Litigation and Agency has provided outstanding service The following 2018 Circuit Court of Arbitration”…Adam Gross, Business and to members in finding the best and most Cook County Judges were sworn in on Professional People for the Public Interest Michael B. Barrett, Samuel affordable Lawyers’ Professional Liability December 3: (BPI), received the Public Interest Law J. Betar lll, Tiana S. Blakely, Joel coverage. Through Tyler Sill, Vice Presi- Initiative’s (PILI) 2018 Distinguished Chupack, Elizabeth Ciaccia-Lezza, H. dent of CBA Insurance Agency, members Intern Alumni Award…Reena Bajowala, Yvonne Coleman, Kevin P.Cunningham, can receive quotes for their LPL coverage Ice Miller LLP, received PILI’s Distin- Colleen Reardon Daly, Adrienne Elaine from a variety of A+ carriers including guished Fellow Alumni Award…Katten Davis, Kent Delgado, Beatriz A. Frausto- Attorney Protective, Aspen, Axis, Found- Muchin Rosenman LLP received PILI’s Sandoval, Peter Michael Gonzalez, Ieshia ers Professional, CAN, Wesco, Jurich Pro Bono Initiative Award, and Illinois E. Gray, Jack J. Hagerty, Judge Robert and Starstone National. Members can Attorney General Lisa Madigan received F. Harris, Judge Toya T. Harvey, Judge also obtain quotes and coverage through PILI’s Distinguished Public Service Award Cecilia Anne Horan, Lindsay Huge, agency partners who specialize in health at the group’s annual luncheon…Illinois Preston Jones, Jr., Kathaleen T.Lanahan, insurance, long-term care and disability, Supreme Court Chief Justice Lloyd Thomas F.McGuire, Scott D. McKenna, life insurance products, wealth manage- A. Karmeier received the 2018 Unity David R. Navarro, Shannon P.O’Malley, ment, etc. CBA Insurance Agency is open Award…Judges Carole K. Bellows, Bar- Erika Orr, Linda Perez, Marian Emily Monday through Friday and is housed on bara N. Flores and Edward Grossman Perkins, Clare Joyce Quish, Joanne F. the sixth floor at the CBA Building, 321 S. received the 2018 Advocates for Diversity Rosado, Stephanie Saltouros, Debra A. Plymouth Court, Chicago. For insurance Award…Trisha Rich, a partner at Holland Seaton, James A. Shapiro, Athanasios questions or to receive a quote, contact Sill & Knight, was named to Crain’s Chi- S. Sianis, Rosa M. Silva, Ketki Shroff at 312/554-2077 or [email protected]. cago Business 2018 “40 under 40 list”… Steffen, Kathryn M. Vahey, Andrea M. Congratulations CBA First Vice President Jesse H. Ruiz was recently appointed to serve as one of three Deputy Governors in Governor- Elect J.B. Pritzker’s administration… Illinois Supreme Court Justice Benjamin K. Miller (ret.) is a recipient of the 2019 Order of Lincoln, Illinois’ highest honor for professional achievement and public service. Justice Miller is currently of counsel at Jenner & Block LLP…Illinois Supreme Court Justice Charles E. Freeman (ret.) received the Illinois Judges Association’s (IJA) Lifetime Achievement Award at the group’s 47th Annual Convention…Judge Mary S. Trew received the IJA’s Presiden- tial Service Award…Judge Thomas More Donnelly received the IJA’s Harold W. Sullivan Award…Illinois Attorney Gen-

  29 Webber,Arthur WesleyWillis and Jeanne and hasservedasDean since 2003. Halhas LawLtd., was afeatured speaker for the Marie Wrenn. servedthe law school and Chicago’s legal ABA’s GP solo livepodocast… D mestic Illinois Appellate CourtJustice for the community with great distinction…Britt Relations Division Presiding Judge Grace ThirdDistrict Mary K. O’Brien is the new M. Miller was named partner-in-charge G. Dickler and Judges John T. Carr and president of the Lawyers’Assistance Pro- at MayerBrown LLP’sChicago office… RobertW. Johnson were featuredspeakers gram…Sandra Frantzen is the newpresi- Lawrence J. Suffredin, Jr., CBA Legisla- at the JanuaryEight O’Clock Call…The dent of the Arab American BarAssociation tiveCounsel and Cook County Commis- Center forDisability&Elder Law (CDEL) of Illinois…Judges Marina E. Ammen- sioner,was afeatured speaker at arecent will host its Winter BenefitonFebruary28 dola, CelestiaL.Mays, Lloyd James meeting of the First Municipal Advisory at Baker &Mckenzie. Brooks, Michael A. Forti, and Frederick Committee…Michelle M. Kohut was Michael P. Rohan joined Locke Lord H. Bates were recently appointed by the named apartner at Corboy&Demetrio. LLPasofCounselintheirInsurance Illinois Supreme Courtto fill Circuit Court Bob and Joan Clifford received the Regulatory and TransactionalPractice vacancies in Cook County…Judges Carole 2018 Distinguished Service Awardfrom Department…RichardBixter,Christo- K. Bellows, RichardP.Goldenhersh, the Lawyers for CreativeArtsfor their pherBuch, Anthony Fuga and Maria AfredLevinson, Hy J. Riebman, and supportofthe arts in Chicago…Genhi Metropulos arenow partners at Holland John B. Simon received special recognition Givings Bailey was named Chief Diver- &Knight…AshleyE.Crettol Insalaco awardsfromthe Jewish Judges Associa- sity and Inclusion Officer at Perkins Coie was named apartner at Tabet Divito & tion. Posthumous honors were bestowed LLP…Cook County Circuit CourtJudge Rothstein LLC…Charles A. “Drew” on U.S. District CourtJudge Milton I. Celia G. Gamrath was appointed to the Walgreen has rejoined WeltmanWein- Shadur and Circuit CourtJudges Leon- Illinois Supreme Court’sJudicial Confer- berg &Reis Co., LPA…Corinne J. Pforr ardLevin and Alvin I. Singer…Jeremy ence Committee…Mona Naser is anew and JenniferY. Tolsky arenew associates Glenn is the managing partner of Cozen associate at Carlson Dash LLC…William at Chuhak &Tecson, P. C.…RichardE. O’Connor’s Chicagooffice…RobertK. Bogot, apartner at FoxRothschildLLP, Nowak and Jonathan R. Rosaluk were Downs spoke about America’s legalsystem spoke about “Legalized Possession and Use named partners at MayerBrown LLP… at Masaryk University Law School in Brno, of Cannabis:ALegal and Ethical Dilemma Danielle Neal, Ryan Burandt, and Paul Czech Republic…John G. Fogarty,Jr. forHealth Care Organizations”atthe J. Coogan arenew associates at Taft Stet- has joined ClarkHill as senior counsel in Chicago Health Executives Forum…Sidley tinius &Hollister LLP…K. Courtney the firm’s government and public affairs Austin LLP received the 2018 Corporate Gustin and Monica Henderson are practice group…Judge Dennis J. Burke Partner Awardfromthe Sargent Shriver newassociates at Cunningham Meyer& (ret.), Ruth Ann Schmitt (Lawyers Tr ust National Center on PovertyLaw…Anne Verdine, P. C.…Jillian M. Molz is anew Fund of Illinois (ret.), received the Illinois E. Rea, Managing Partner of the Chicago associate at Gould &Ratner LLP…Evan BarFoundation’s 2018 Distinguished office, accepted the award, which recog- Kline-Wedeen, VincentR.Meyer and Service to Law andSociety Award, and nized the firm’s probonocontributions Kerianne A. Strachan arenew associates at RichardR.Winter, apartneratHol- to preserve health carefor thousands of Fitch Even Tabin&FlanneryLLP…David land &Knight, received the Illinois Bar Illinois residents…ThomasA.Deme- J. Gallagher is anew associate at Moth- Foundation’s HonoraryFellowAward… trio is anew associate at CliffordLaw erway &NapletonLLP…Elizabeth Awe Louis G. Apostol, Public Administrator Offices…JaredI.Rothkopf was elected a Hafkey has rejoined ButlerRSubin altarelli for Cook County,received NIU’sCollege shareholder at Polsinelli P. C.…Emily N. &BoydLLP…RobertC.Ansani is anew of Law’s Public Service Award…Richard Masalski, apartner at Rooney Rippie & partner at Fuchs &Roselli Ltd.…Kenneth Saldinger, apartneratLatimer LeVay Ratnaswamy LLP,was apresenter at the T. Lumb was named managing partner at Fyock, was named to 2019 Best Lawyers National Asian PacificAmerican BarAsso- Corboy&Demetrio…Stephen R. Vedova in America list…Seyfarth Shaw received ciation Conference on “Rapid Legalization was elected an equity partner at Foley & two Value Champion Awards from the of Marijuana: Risks, Stakes and FutureLiti- MansfieldPLLP…Querrey&Harrow Association of Corporate Counsel and gation”…Samuel Crowley, Katie Trucco will celebrate its 80th year anniversaryin was recognizedbyAmericanLawyer as and Dominique Ritvo arenew associates 2019…Daniel E. Feinberg and Geoffrey an IndustryAwards finalist for Best Use at Donohue BrownMathewson &Smyth J. Repo arenew partners at Gordon Rees of Technology and Best Client/Law Firm LLC…Allen J. Guon, apartner at Fox Scully MansukhaniLLP…MichaelC.Ter- Team…Judge Lorna E. Propes received Rothschild, was amoderator at the Hon. ranova has become apartner at Cogan & the Judge of the Year Awardfromthe RobertE.Ginsberg Program on Com- Power…Margaret A. Manetti was named Illinois Chapter of the American Boardof mercial Bankruptcy…Mary H. Schnoor an associate at Sosin Arnold &Schoen- Trial Advocates…Harold (Hal) J. Krent, is anew associate at Jones Day…Patrick beck, Ltd.…David F. Standa and Michael Dean of IIT Chicago-Kent College of Law, A. Salvi ll was afeatured speaker at ITLA’s R. Wilson were named partners at Locke announced his plans to retirethis summer. December seminar on medical malprac- Haljoined the law school faculty in 1994 tice…KerryM.Lavelle, founder of Lavelle continued on page 58

30  ASpecialNoticetoallLawyersWhoResideinorPracticeinCookCounty

The Moses, Bertha & Albert H. Wolf Fund

he Chicago Bar Association manages the Moses, Bertha, T and Albert H. Wolf Fund to aid attorneys who reside or practice law in Cook County and are ill, incapacitated or superannuated. Through the Fund, the CBA provides financial assistance in the form of grants and loans.

Eligible recipients also include lawyers in Cook County who receive assistance from the Lawyers Assistance Program and are in need of medical assistance.

“I can say without hesitation that the generous support that I have received from the Wolf Fund has enabled me to receive medical treatment for several disabling conditions and prevented me from becoming homeless. My hope is that Iwillbe able to return to the full-time practice of law and someday make a substantial contribution to The Chicago Bar Association’s Wolf Fund in return for all the help they have given me. I am ever so grateful.” -WolfFundRecipient

For more information, please contact Terrence M. Murphy, Executive Director 312-554-2002 • [email protected] By Judge Janet Adams Brosnahan

IPI Civ. No. 12.04: Making the Case for Revisions TheThe Proper Proper Use Use and and Application Application ofof the the Sole Sole Proximate Proximate Cause Cause DefenseDefense

32   The second paragraph of Illinois Civil Pattern Jury instruction 12.04 embodies what is sometimes known as the “sole proximate cause defense” or the “’empty chair’ defense.”IPI Civ. No. 12.04 states: Concurrent Negligence Other Than Defendant’s More than one person may be to blame for causing an injury. If you decide that a [the] defendant[s] was [were] negligent and that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame. [However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.]

HE NOTES ON USE INSTRUCT THAT INCLUSION bracketed paragraph, which pertains to sole proximate cause. of the second paragraph (“the long form”) is justified “only McDonnell at 518. Twhere there is evidence tending to show that the sole proxi- mate cause of the occurrence was the conduct of a third person” Sole Doesn’t Mean One who is not a party to the lawsuit. As long as a defendant can proffer Misnomer aside, the substantive meaning of the second paragraph “some evidence in the record” to support the sole proximate cause has also been the subject of disagreement and contradictory court theory, that defendant is entitled to the long form of IPI Civil opinions. The conflict arises from differing interpretations of No. 12.04. Leonardi v. Loyola Univ., 168 Ill.2d 83, 101 (1995). the word “sole.” In Douglas v. Arlington Park Racecourse, LLC, Despite these deceptively clear and simple directives, confusion 2018 IL App (1st) 162962, the plaintiff, an injured jockey, sued persists concerning when the long form is appropriately given. Arlington Park Racetrack, alleging that Arlington Park negligently maintained the synthetic surface of the track, known as Polytrack. No Need to Show Negligence In its defense, Arlington Park presented evidence that two non- What gives rise to the confusion? Well, let’s start with the mis- parties caused the plaintiff’s injuries–a jockey, who improperly leading title. Although IPI Civ. No. 12.04 is titled “Concurrent allowed his horse to clip the plaintiff’s horse during a race; and Negligence other than Defendant’s,” the Illinois Supreme Court the manufacturer of the Polytrack surface, for its failure to provide has recognized that a non-party’s actions that are alleged to have instructions on the proper way to maintain Polytrack to ensure caused the plaintiff’s injury need not be negligent at all. Therefore, its safe use. At Arlington Park’s request and over the plaintiff’s in McDonnell v. McPartlin, 192 Ill. 2d 505 (2000), the jury was objection, the trial court instructed the jury using the long form properly instructed using the long form of IPI Civ. No. 12.04 IPI Civ. No. 12.04. After a verdict in favor of Arlington Park, where the defendant doctor in a medical negligence action argued the trial court granted plaintiff’s motion for a new trial. The trial that the conduct of a non-party physician was the sole proximate court found that use of the sole proximate cause instruction was cause of the decedent’s death. The defendant doctor was not improper and confusing to the jury because the Arlington Park required to show that the nondefendant’s conduct was negligent. blamed two alleged tortfeasors based upon two alternative and The Supreme Court conceded that the title referenced another’s distinct theories of negligence. The First District Appellate Court negligence, but ultimately concluded that the title had no impact disagreed, concluding that “sole,” as used in the second paragraph on the use and essence of the instruction: of IPI Civ. No. 12.04 can mean any number more than zero. In Plaintiff places much emphasis on the title of the instruction- so holding, the Appellate Court tacitly disregarded the use of the ”Concurrent Negligence Other Than Defendant’s.” The title, singular form of the prepositional object (“some other person”), of course, is not a part of the instruction that a jury receives. and specifically rejected the rationale in both Clayton v. County of In any event, the title appropriately describes the main pro- Cook, 346 Ill.App.3d 367 (1st Dist. 2003), and Abruzzo v. City of vision of the instruction contained in the first paragraph, Park Ridge, 2013 IL App (1st) 122360, which interpreted “sole” rather than the optional provision contained in the second, as meaning only one:

  33 found support for its reasoning in Nolan v. Weil-McLain, 233 Ill.2d 416 (2009) (trial court erred by denying the defen- dant’s sole proximate cause defense where 11 nonparties were charged with causing the plaintiff’s injuries); and in Ready v. United/Goedecke Services, Inc., 238 Ill.2d 582 (2010) (trial court erred in refusing to give the second paragraph of IPI Civil No. 12.04 where two non-parties were accused of negligent actions resulting in the plaintiff’s injuries). The reasoning of the majority in Douglas was consistent with an earlier, unpublished opinion by the Fifth District Appellate Court in Wehmeyer v. Caterpillar, Inc., 2017 IL App (5th) 160100-U, ¶ 37, which concluded, “To the extent the Abruzzo court held that the sole proximate cause instruction never should have been given in the first place because there were multiple other causes, we find the reasoning of the Abruzzo court unpersuasive in light of Nolan and decline to follow it.” The dissent in Douglas sharply dis- agreed, finding that the facts and reasoning Both Clayton and Abruzzo are usually specified individual, unit, or in Nolan and Ready were distinguishable, grounded in the notion that the group.” (Emphases added.) Other and pointedly stating that “Any competent word “sole” connotes the singular, definitions include “being the only speaker of English would recognize that and thus “sole proximate cause” one; only” along with “belonging sole means one.” Douglas at ¶127. must refer only to a single nonparty or pertaining to one individual or actor or cause, not multiple. There is group to the exclusion of all others; Examining the Utility of Two Sole Proximate nothing illogical about that reason- exclusive.” (Emphasis added.) Cause Instructions ing, but neither is it the only possible Douglas at ¶57 (internal citations omit- The dissenting opinion in Douglas high- conclusion. If we were to delve into ted). lights another problematic issue pertain- linguistics, the word “sole” does not Thus, the Douglas court concluded ing to the appropriate use of IPI Civ. No. necessarily imply only the singu- that the sole proximate cause instruction 12.04. At the jury instruction conference, lar. Merriam-Webster’s Dictionary is apropos whether one or one hundred the parties disagreed over whether the defines “sole” not only as “having nonparties are claimed to be at fault for second sentence of I.P.I 12.04 should be no companion: Solitary” or “being the plaintiff’s injuries. While disagreeing given, and whether IPI Civ. No. 12.04 or the only one” but also as “belonging with the court’s interpretation of “sole” in IPI Civ. No. 12.05 was more appropriate. exclusively or otherwise limited to one Clayton and Abruzzo, the Douglas court Arlington Park advocated for the use of the long form IPI Civ. No. 12.04, and plain- tiff’s counsel proffered instead, the short UPDATE YOUR CONTACT INFORMATION form of IPI Civ. No. 12.05. In its entirety, IPI Civ. No. 12.05 reads: Ifyourecentlymoved,joinedanewfirm,createdanewemailaccount,gotanewphonenumber,etc.please Negligence—Intervention of take a moment to update your member profile. You can do this online at www.chicagobar.org, login with Outside Agency your member number as your user name and your member number followed by your last name as your If you decide that a [the] defendant[s] was [were] negligent and that his password, then click on My Membership to update your profile. [their] negligence was a proximate cause of injury to the plaintiff,itis If you have any problems, call 312/554-2135 or email [email protected] you! not a defense that something else

34   may also have been a cause of the tending to show that the sole proximate injury. cause of the plaintiff’s injures was “the Organized Crime in Chicago: conduct of a third person, or some other [However, if you decide that the causative factor.” (Emphasis added.) Why sole proximate cause of injury to RICO, Gangs & the Mob not adopt similar language in a single jury the plaintiff was something other instruction? A sound argument can and has than the conduct of the defendant, Presented By: YLS Criminal Law Committee been made that a jury should not be given then your verdict should be for the two sole proximate cause instructions; an defendant.] even better argument is that there should Wednesday, January 23, 12:00–2:10 pm Plaintiff’s counsel argued that an not be two separate sole proximate cause instruction on sole proximate cause should instructions. CBA Headquarters be “limited to one or the other of these When an Illinois Pattern Jury Instruc- instructions,” depending upon whether tion has caused litigants, judges and jus- This seminar will feature a panel discussion on the defendant presented evidence that tices to disagree about its meaning and its another person (IPI Civ. No. 12.04) or application, certainly it has the potential to the intersection of Federal RICO statutes and another thing (IPI Civ. No. 12.05) caused confuse, rather than to direct and inform, the plaintiff’s injury. The trial court agreed, the jury. Regarding IPI Civ. No. 21.04, organized crime enterprises with the recent ruling that a defendant is not entitled to the Douglas court said, “Nomenclature “two separate distinct sole proximate cause aside, the sole proximate cause theory is development of the Illinois state RICO law and instructions.” Douglas at ¶103. simply one way a defendant argues that But, in practice, the distinction between the plaintiff failed to carry its burden of Chicago gang prosecution. The discussion will a third person, as described in IPI Civ. No. proof on proximate cause—specifically, 12.04 and “something else” as described in by arguing that the negligence of another includeacasestudyofthe2017BlackSoulsgang IPI Civ. No. 12.05, has been conflated. For person or entity, not a party to the lawsuit, instance, in Barbara a Vendt-Rhoades Indep. was the only proximate cause of the plain- trialduringwhichsixoftheorganizations’lead- Ex’r of the Estate of Patrick v. Mathew- tiff’s injuries.” Douglas at ¶36. Without ers were found guilty in the first test of Illinois Stilson, 2008 Ill. Cir. LEXIS 2,*23, the long question, IPI Civ. No. 12.04 is flawed if form of IPI Civ. No. 12.04 was proposed, we must both disregard its title and set anti-racketeering statute. The program will accepted and given where the defendant “nomenclature aside” in order to use it as doctor’s expert medical witnesses testified intended. Moreover, IPI Civ. Nos. 12.04 conclude with updates on the current status of that the sole proximate cause of plaintiff’s and 12.05 can and should be combined death was his pre-existing prostate cancer into a single comprehensive and clear gangrelationsandRICOprosecutionintheILND (obviously, a thing, not a person). instruction reflecting the sole proximate In Banks v. Climaco, 283 Ill. App. 3d cause defense. U.S. Attorneys’ Office and Cook County State’s 842, 852 (5th Dist.1996)(overruled on other grounds), the First District Appel- Conclusion Attorney’s Office. late Court aptly noted that IPI Civ. In light of the ambiguity inherent in the word “sole” and the conflicting interpre- No.12.05 is more comprehensive than the Speakers include: Thomas Darman, Assistant language of IPI Civ. No. 12.04, because tations contained in case law, the Illinois “‘something other than the conduct of Supreme Court should weigh in, and the State’s Attorney, Northern District of Illinois; the defendant’ may include the conduct Illinois Supreme Court Committee on Jury of a nonparty.” Therefore, in Banks, when Instructions in Civil Cases should revise TimothyStorino,AssistantU.S.Attorney,North- contemplating the proper use of long form both the title and the text of IPI Civil No. IPI Civ. No 12.05, the court relied upon 12.04, so that the law on sole proximate ern District of Illinois; and Steven Greenberg, case precedent discussing the use of long cause is understood by lawyers, judges and form I.P.I Civ. No. 12.04, reasoning that juries alike. Steven A. Greenberg & Associates. Additional whether the sole proximate cause instruc- tion pertained to a thing or a person was speakerswillbeannouncedatwww.chicagobar. Judge Janet Adams Brosnahan serves in the “a distinction without meaning.” Circuit Court of Cook County’s Law Divi- Indeed, various courts, adopting the org/cle. Moderator: Chastidy Burns, Assistant sion. language used in Leonardi v. Loyola Univ., Public Defender, Cook County Public Defender; 168 Ill.2d 83, 101 (1995), have reiterated that the sole proximate cause instruction Chair,YLS Criminal Law Committee is warranted whenever there is evidence

  35 The CBA Record’s FlashFlash Fiction Fiction Creative Creative Writing Writing Contest Contest 2018

The results are in! The CBA Record is thrilled to publish the winning entries from its 2018 Flash Fiction Creative Writing Contest.

Coinciding with the Write Across Chicago ini- tiative, 22 CBA members submitted entries to the competition, which was judged by members of the Record’s Editorial Board. The winning entry is The Poetry Garage, by Julie Justicz, who is with the Chicago Lawyers’ Committee for Civil Rights. Second place goes to Frankie by Tom Sotos of Greenburg Traurig LLP. he third place reciepient is Quietly, by Daniel P.Lindsey of the Legal Assistance Foundation. We hope you enjoy these short fiction pieces as much as we did.

Thanks to all the entrants, who demonstrated that many talented writers belong to the CBA. Due to the enthusiasm for the competition, the Editorial Board intends to repeat it in about a year.

36                                                                                                                                                                                             

                                                                            Flash Fiction Creative Writing Contest –First Place– The Poetry Garage l By Julie E. Justicz

Tr affic snarled at Dearborn and Madison. Ten minutes before Margie could squeeze her scrappy 2002 Honda into the backlogged buses, bul- lying cabs, and ubiquitous Ubers. Driving into the city was never worth the hassle, even when she needed a car. Tonight, she had a maybe date with Larry. Maybe, because he often cancelled at the last minute. Maybe, because it might not be a date. They’d been friends and work colleagues for over 25 years at Legal Assistance Foundation of Chicago (recently rebranded, expensively, stupidly, LAF). Still, she was hopeful about what the evening might bring: she’d dust busted the car seats this morning to get rid of dog hair and she was wearing her flowy blue outfit from Second Time Around.

38   She’d booked her parking spot with one of those new apps: Space- image: If equal affection cannot be/Let the more loving one be grabber? Spotmonster? Sixteen dollars all day. A real deal because me. Why not Stop all the clocks, the poem made famous by Four Loop retail was closer to forty bucks. Yasmina, a new attorney, fresh Weddings and a Funeral? She’d seen that rom-com twice, foppish out of UChicago (which hadn’t yet been rebranded that when Margie Hugh Grant and the admittedly awful Andie MacDowell. She saw attended), had downloaded the app on Margie’s phone, then insisted it the first time with Larry at Webster Place. His nostrils had flared on adding another one named Venmo—“for, you know, like charging throughout the movie. “Sentimental crap,” he said afterwards, so a friend after you buy them a latte.” Didn’t that defeat the whole she’d had to watch it again on her own a week later to cry freely. point? Would Larry “Venmo” her for dinner tonight? Larry and she did better with books than movies. Better with Cyclists pedaled furiously past her car window. Divvy was the restaurants than books. Though she was a little dubious about the latest plague to hit the city. As with iPhones and sleeve tattoos, the Vietnamese place he’d suggested for tonight. She suspected Larry blue bikes appeared overnight, infecting everyone under thirty, had been turned on to it by one of the pretty young lawyers he then slowly spreading to the older generation. Margie was tatt-free, supervised. They got to you, the twenty-somethings, putting new planned to die that way, but she’d surrendered to Apple, bought tastes in your mouth, new apps on your phone. a used iPhone 6S, last month. “I miss the flip-phone,” Larry had The elevator down: Frost, Whitman, Eliot. Emily Dickinson on said, when he entered his info into her contacts. Unnecessarily, street level. Was she the only female poet the floor-namer could come because Margie knew all his numbers by heart: home, office, cell. up with? If that were a full-time gig, paying decent money, Margie Address and email, too. Larry was the first person she’d met at LAF. would love to name garages and then label their floors. She’d start She’d just finished a clerkship in Detroit; he’d arrived fresh from a with The Book Garage, each level titled for a favorite novel. Maybe Kibbutz where he’d picked dates for a year post law school. When one for movies…Chicago movies…Would there be enough? Blues they were baby attorneys together in different neighborhood offices, Brothers. Adventures in Babysitting. Home Alone. At 53, Margie they talked on the phone for hours every day, had dinner at least felt she was approaching irrelevance. She’d never be a floor in The once a week. She hadn’t found him attractive; he was tall and tan Law Garage. She’d never won so much as a newsletter mention and tended to bump into things. But now, with his thinning hair for her (admittedly minor) victories at LAF. And now she worked and unkempt beard, his ever-stained ties, well, could she imagine alongside iPhone X’ers, tech-savvy, Divvy-riders. They knew how growing old with him, maybe moving to Cape Cod? to do things with computers that seemed liked sorcery. She’d fought A pedestrian banged hard on the hood of her car. Cheap suit, the office manager for two years before giving up WordPerfect; she briefcase, comb-over, no doubt headed for the 9:30 call at the still missed the old key codes, hated the wireless mouse. Daley Center. He flashed his thick middle finger at her, disappeared Yasmina stood outside Margie’s office, misery drowning her fine behind a bus. Self-righteous jerk. He was the one jay-walking. features. Overwhelmed by their caseloads, new attorneys often lined Margie laid on her horn, loud and long, like a driver in a New up outside Margie’s door to ask questions: Is medicinal marijuana Yorker traffic cartoon. use cause for eviction? What about a therapy dog? Oral research Hadn’t Larry first won the caption contest on a cartoon like was how legal aid lawyers managed to assist sixty clients a month. that? He submitted an entry every week, spending hours finding Margie held up her hand like a stop sign. “Give me a minute, the perfect line, even when he was overwhelmed with cases. He’d please.” email her his ideas, but she was terrible at picking winners. Terrible She got five seconds. at telling jokes, too, apparently. Larry once said, “No one can flub “Remember the family in that crappy building in Pilsen? Well, a punchline like you.” But he also said that she was the best damn the landlord changed the locks on their apartment last night, so brief writer in the agency. “Precise and compelling.” That from the dad, Jorge, broke a window to get in. Now the cops are there his first evaluation of her work, when he became Housing Project and the landlord’s threatening to call ICE and Jorge’s terrified he’ll Director, her direct supervisor, and she was bumped up to Senior be arrested…” Attorney, a title without a pay raise. He’d won the caption contest Margie’s computer whirred to life. “I’m sending you my file on eight times in the last few years; twice the number of trials Margie illegal lockouts. Fill out a petition--start adding names, summarize had won in the past quarter century. the events up to now. Attach the judge’s order from last week. Be The red light at Wells changed two more times before she got sure to include the kids’ ages—the baby. I’ll head over there.” through, turned into the garage, and spiraled up to level five. W.H. “Now? Are you driving? I can download the Waze app for you…” Auden’s floor, because yes, this was The Poetry Garage and yes, she’d “No need. My car’s happy where it is. I can catch a cab, then picked it for that reason, and yes, she wrote poetry in her spare time. Venmo Larry later for the fare.” She imagined retiring to a beach house with Larry. With her dogs, too. She’d sit with a mug of coffee, watch the waves, write nature Julie E. Justicz is Program Development Counsel for the Chicago poems, while he sat on the can, coming up with winning captions. Lawyers’ Committee for Civil Rights Waiting for the elevator, she looked at Auden’s photo—young, horse-faced, slicked hair, big-ears. The words printed under his

  39 Flash Fiction Creative Writing Contest –Second Place– Frankie l By Thomas J. Sotos

He looked different than she remembered. Gone was the beard she once adored, and slim- mer, average height stretched taut. His hair was the same, rusty blonde styled in a short, boyish fringe. And then, of course, that other change, beneath the surface. He was married eight years ago, he was twenty-five years old, her name is Elin, they grew up together in Gothenburg. It had been ten years, but still, an uneasiness roiled her insides at the sight of the wed- ding band on his left hand. Steeling herself, she walked over to where he sat and rested a trembling hand on his shoulder. He looked up from his newspaper. For the first time in a full decade, she heard him speak, “Kan jag hjälpa dig?” She giggled. Swedish, of course! Oh lord, stop laughing. Everyone’s looking at you. Ner- vously, she replied, “Probably should’ve touched up on my Swedish before I—well, sorry. Anyway, long time Isak. It’s good to see you again.” Isak, in hardly a whisper, responded, “Horunge. Marissa?” Marissa smiled. That was one of the few fragments of Swedish he’d bothered to teach her. “Hey I know that one! ‘Son of a bitch!’ Right?” You just swore loudly in a Swedish coffee shop. Please stop.

40   He spoke again, this time in English. “Yes, yes. My God. Marissa? Despite herself, Marissa laughed. “And he already has to wear What are you doing here?” He stared at her, unmoving. Like he’d glasses. Blame me for that one, too.” seen a ghost, the blood drained from his face, rosy cheeks fading Isak looked up, eyes locking onto Marissa. He looked back to the pale. picture, then again at Marissa. She could feel Isak’s mind churning Marissa’s anxiety betrayed another giggle. “Yeah, it’s me. Sorry, at warp speed, eyes darting from picture to woman and back again, I wanted to catch you on your lunch break, and your receptionist trying to process the events before him. After an eternal minute of said I could find you here. Such a cute place! I didn’t know—“ uninterrupted contemplation, he said, “Marissa, am I to understand “Marissa, what the hell is going on?” that this is my child? For ten years, you have been raising my son?” God damnit. Pull it together. “Right, sorry again. Look, Isak, we Her heart clenched, jolted to the core. He wasn’t angry, and he need to talk. I know this is strange, and I know it’s been so long. I certainly wasn’t loud. Marissa could have handled that. Hell, she just, can we go somewhere? Is there a place—” found herself almost hoping for it. Instead, Isak spoke gently, his “My office.” tenor warm and familiar, his questions direct. It crushed her. With the abruptness of someone accustomed to receiving impor- Marissa breathed deeply, searching for something to say. She tant news without delay, Isak stood up, threw on his overcoat, and came up with little. “I’m sorry Isak. I—yes.” walked out the door. Isak looked down once more, at the picture of Frankie. His son. This is going swimmingly. Marissa sighed and looked around He spoke slowly, weighing the propriety of each word as it escaped the café. It was a small, self-contained room. Four walls of exposed his lips. “You will understand if I ask you to leave now? I would brick, half-full with twelve people, all staring directly at Marissa. like some time alone. I will cancel my dinner plans so we can speak Quickly, head down, she strode for the door and found Isak outside. over a meal, yes?” Ten years since Marissa last saw him. A decade of upheaval, a His accent, unlike his mannerisms, had undergone a drastic decade of refusing to send so much as an email to the man unknow- transformation. Where once he stuttered and skipped over articles, ingly responsible for refrained from using contractions, and had the unintentional but turning her life on its head. Ten years of wondering about him, amusing habit of employing the wrong verb to wildly inappropriate his marriage, his life. Maybe I should have called before ambushing effect, now his English was crisp and precise, nearly bereft of Swed- him at a Swedish coffee shop. ish influence. Except for that contraction thing. Marissa noticed Isak set a brisk pace, Marissa trailing silently behind as they he had yet to use even one. walked two blocks to an old-seeming cottage-style building just Through the lump in her throat, Marissa forced an answer. “Yeah, outside of Stockholm. But for the Swedish law firm it housed, the yeah of course Isak.” building wouldn’t have been out of place in a New England hamlet. “Thank you, I will have a car pick you up this evening. Leave They walked into the lobby, past the receptionist and admin- your address with my receptionist. I will see you tonight.” The istrative staff, and into Isak’s office. Marissa closed the door, and words he spoke to Marissa, but his eyes had long since returned to Isak hung their coats. He leaned onto a large oak desk and looked the picture. her in the eye, gaze sympathetic but unwavering, waiting for her “Oh, okay, yeah. Thanks. See you tonight.” to speak. As Marissa stood up to leave, Isak looked at her. Softly, he asked, “My God, he looks just like you Isak.” Oh come on Marissa. “I may keep the picture, ja?” She couldn’t help it. It was the only thing on her mind. Isak’s nose, Marissa smiled. “Yes! Isak of course!” smallish and thin, Nordic in every sense. The elongated face, cheek- “Tack. God dag, Marissa.” bones so prominent they looked ready to burst from his skin at a Isak rose from his chair, walked around the table, kissed Marissa moment’s notice. Even the hair, beautiful and blonde and youthful, deftly on both cheeks, and returned to his desk. She lingered a just like it was when they’d first met. moment. With both hands on the table’s edge, Isak leaned over She reached into her clutch, retrieved a picture, and handed it the photo and stared, transfixed by the image of a boy he created, to Isak. Voice aquiver, she said, “He’s ten. Franklin, after my dad. but did not know. Eyes welling up, Marissa shuffled soundlessly Everybody calls him Frankie. His middle name—he’s yours, Isak. to the door, opened it without a word, and stepped out of his Franklin Isaac Keller.” office. She hurried to the firm’s front entrance and burst outside, Isak held the postcard-sized photograph not six inches from his her tear-strewn face greeted by a chilly Stockholm wind. eyes, concealing his face from Marissa. Two minutes ticked away on the clock above his desk. Ten years of not knowing. In two minutes. Thomas J. Sotos is a Chicago Litigator with Greenberg Traurig, LLP Sweat trickled down Marissa’s forehead. Isak lowered the pic- ture—Marissa’s favorite, Frankie in his baseball uniform, holding his hat in his first baseman’s mitt—an inch or so. Eyes still glued to the image in his hands, Isak muttered, “He has my nose. Your eyes though, definitely your eyes. None of my blue.”

  41 Flash Fiction Creative Writing Contest –Third Place– Quietly l By Daniel P. Lindsey

Ana slumped down into the curve of cracked orange plastic. From here she could avoid the gaze of the receptionist, a large block of woman with an accent heavy on borscht and light on vowels. Not that Ana was judging. Her maternal grandparents came over from the steppes of Eastern Europe–so far east it was Asia, depending on who you asked. Gramma Ulyana had been her favorite person in the world, but, had she been here, she would have been the one judging. Ana didn’t need the reminder. A whoosh of air and a chime of bell. Ana felt a chill, and then, even without look- ing, she knew: her mother. Ana stayed very still. When she was little she and her mother played a modified version of Hide and Seek. The Hider would go into the next room and find a spot in plain view, and after a count of twenty the Seeker would come into the room with eyes closed, moving slowly and feeling along the wall. The Hider would sit as still and as quiet as possible, while the Seeker would listen and reach out and creep along. If the Hider could remain undetected for more than two minutes, she won the round. Ana started counting. Maybe if she concentrated hard enough her mother would play the game. Maybe if she could last two minutes, her mother would go away. “Ana?” She looked up. For a confused moment she found herself staring into the face of Gramma Ulyana. How could that be? Was the force of Gramma Ulyana’s disapproval so great that she had summoned herself here from beyond the grave?

42   The image resolved itself into that of Ana’s mother. It had been so I knew you were lying about basketball practice. It’s not like you a trick of the incandescent light, its harsh glare framing her mother to lie.” against the dark contact paper lining the windows. When Ana first Ana felt a warmth rising to her face. “Okay, but how did you arrived, she assumed the opaque layering was there to protect the know I was here?” privacy of those within. But sitting inside, she began to wonder if “Oh. I followed you.” it was meant to safeguard the sensibilities of those outside. “From school? All afternoon? But that’s, like, two hours.” “Ana?” She shrugged. “Mother.” From the back they heard muffled voices, then a scrape and a thump As Ana’s mother took a seat and leaned toward her daughter, the and the slamming of an inner door. Footsteps and louder voices, then heavy brass St. Michael medallion hanging from her neck swung the door to the waiting room flew open and the girl rushed out, awk- out and clipped Ana’s jaw. wardly trying to yank on her coat and reattach her headphones all as “Ow!” Ana grabbed her chin. “You brought reinforcements.” she hurried out the front door and onto to the street. “Oh, I’m sorry!” Ana’s mother gathered in the necklace and Ana felt her mother squeeze her leg. “You see?” stowed it under her sweater. “No, Mother, I don’t see,” answered Ana. “I have no idea what “It’s alright. I’ve always wanted to be touched by an angel. Just that was about, and neither do you.” not that hard.” “Well, it wasn’t good. My guess is that the reality of the…pro- Ana’s mother sighed. “Ana, why didn’t you tell me what was cedure…finally sank in.” going on? We could have talked. I could have helped.” She paused Ana stared at her mother. “Procedure? You mean…you think and looked around, as if belatedly acknowledging the private nature I’m here to get an abortion?” of their conversation, but the only other person in the room was a Ana’s mother cringed. “Please don’t say that word. But, yes, why headphoned girl rocking to a heavy bass line. else would you be here?” “Helped?” repeated Ana. “How could you have helped?” Ana shook her head. “I’m here to get birth control.” “We could have talked. I could have listened. I could have told “Birth control. What? You mean you’re sexually active?” you stories about—about girls I knew. Girls who made mistakes. “No. Not yet. I’m just being careful. But, even if I were, two Who had regrets.” She paused and shook her head. “Anyhow, it minutes ago you thought I was pregnant. Isn’t sexually active better doesn’t matter.” She mustered her resolve. “For the wages of sin is than pregnant?” death. I believe that, Ana. You must choose life. Always. No matter “But one leads to the other.” the cost.” “Not if you use birth control.” “That’s easy for you to say.” Ana’s mother opened her mouth. Then she closed it. Then she “No, not so easy.” She paused, reaching for her medallion, surprised Ana by letting out a small laugh. “Well,” she said, “it fumbling when she came up empty. She placed her hand on Ana’s doesn’t always work. Like I said, you were a surprise. You were the leg. “We didn’t plan on you, you know. We had our perfect family daughter we didn’t plan on.” of five. We’d just bought the house. We were just getting settled. Ana frowned. “Wait a minute. Are you saying that you and dad And then your father lost his job. And then—surprise!—you came used birth control?” along. At the worst time.” “Ana, believe me, if all we’d used was the rhythm method, you “You never told me.” would have a lot more than three sisters.” “Because you didn’t need to know. And because you also came “But you’re Catholic.” along at the best time. Because in the end there is no worst time. “I’m aware.” Only the best—even if it’s the hardest.” “But the Church doesn’t believe in birth control.” Ana blinked and turned away. She met the gaze of the headphoned “But I do. I may be Catholic, but I’m also a woman. girl, who stopped rocking though her bass line continued to thump. The inside door opened. “Ms. Lukashenko?” “Ms. Lukashenko?” intoned the receptionist from the open door to Ana stood up. the back of the office. “Ms. Lukashenko?” she repeated, sounding bored. So did her mother. Ana stood. So did the headphoned girl. They looked at each “Mother, what are you doing?” other in confusion. “I’m coming in with you.” The receptionist shook her head. “Sofia Lukashenko?” Ana sat “What? I thought you didn’t approve.” down as the girl disappeared inside. “I don’t,” she agreed, patting St. Michael, who remained quietly Ana turned to her mother. “So how did you know?” hidden beneath her sweater. “But I’m still your mother.” “Oh, Ana. A mother knows these things. You’ve been acting strange lately. Then yesterday at the market I ran into Coach Ben- nett’s wife. She told me about the birthday dinner she was planning Daniel P. Lindsey is Director of the Consumer Practice Group at the tonight for Emma, and how the whole family would be there, and Legal Assistance Foundation

  43 YOUNGLAWYERSJOURNAL

timely execute estate planning documents. CBA YOUNG Facing one’s own mortality and plan- ning for personal disability or death is not LAWYERS SECTION an easy or attractive subject. However, the alternative to not addressing the realities of Chair life can cost individuals and families time, Brandon E. Peck money, and unnecessary grief. Peck Ritchey LLC Unfortunately, many people think of an estate plan as something that is used after First Vice-Chair death. However, that’s often not the case. A Octavio Duran proper estate plan involves more than just a Hart, David, Carson LLP will. A power of attorney for property will identify who can make financial decisions Second Vice-Chair for you, should you become incapacitated. A revocable living trust can designate how Jeffrey Moskowitz your money will be distributed, even while J. Moskowitz Law LLC you are still living. Seeing why these two things are so important is as simple as Member Service Manager Protecting Your Family asking these questions: How do I want Alexis Crawford Douglas ByBrandonE.Peck to spend my time if I become ill? Who K&L Gates LLP will pay my bills if I can no longer do so? YLS Chair Where would I want to live? Would I Public Service Manager rather live in a nursing home, or at home Tracy A. Brammeier his past holiday season brought with a caregiver? If you don’t have an estate Clifford Law Offices, P.C. families together, gave everyone plan, and you are unable to make decisions Ta chance to enjoy each other’s for yourself, the answer to these questions Project Officer company, and the opportunity to see are in the hands of someone else. A lack Katherine Oswald many family members for the first time of planning in the financial area can have in months or years. Often, these family Golan Christie Taglia a major impact on how you spend the end gatherings are when individuals observe of your life. a cognitive decline in a member of the Project Officer Everyone over age 18 should have family. Whether this is the first instance Kate Schnake powers of attorney in place for their pro- in which a decline is observed, or whether tection. Powers of attorney are powerful Hinshaw & Culbertson the decline has been observed for many documents that allow an individual (the years, the time to take action to protect “principal”) to designate an individual Secretary/Treasurer that family member is now. or entity (“agent”) to make financial and Svetlana Gitman Changes in an individual’s behavior, health care decisions when they are no Bruce Farrel Dorn & Associates mood, spending habits, relationships, or longer able to make those decisions on friends may indicate that they need assis- their own. Illinois recognizes two types of YLS Journal Co-Editors in Chief tance. A family gathering not only presents powers of attorney: financial and medi- Daniel J. Berkowitz an opportunity to observe these changes, cal. Financial powers of attorney usually Aronberg Goldgehn but also provides a good setting for a family include the right to open bank accounts, to sit down and discuss what they can do withdraw funds from bank accounts, trade Natalie C. Chan to help. stock, pay bills, and cash checks. They can Sidley Austin LLP Additionally, the end of the year is a also include the right to give gifts. Medical great time to take stock of estate planning powers of attorney allow the agent to make Assistant Editor documents or advanced directives. In the health care decisions when the principal is Lindsey Purdy world of probate and estate litigation, no longer able to make them. In all of these Weissberg and Associates Ltd. individuals often wait too long to create tasks, the agent is required to act in the an estate plan or execute an advance direc- best interests of the principal. The power YLS Director tive that could have protected themselves of attorney document explains the specific Jennifer Byrne and their family. Expensive and protracted duties of the agent. litigation can be a consequence of failing to A power of attorney is one of the most

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schedule and your budget. Visit www.legalre- important estate planning documents, or personal representative to manage but it is important to know the rights and the decedent’s property. search.com/CBA for more information or call limitations associated with it. For example, While it may seem like overkill to have a 844/638-6733 for a free consultation. when a parent names only one child to be young adult execute such documents, the the agent under a power of attorney, it can preparation of such advanced directives cause bad feelings and distrust among the help negate the possibility of any disagree- child’s siblings. The following are some ment as to who should act on your behalf, things to keep in mind: should you be unable to make decisions • Right to information. Your parent for yourself. doesn’t have to tell you whom he or she In addition to powers of attorney, all chooses as the agent. adults should have a will. The will itself Nielsen Career • Access to the parent. An agent under will become effective upon the death of the a financial power of attorney should testator and will nominate an individual Consulting not have the right to bar a sibling from “executor” to handle the distribution of seeing their parent. A medical power of their assets. A common misconception is attorney may give the agent the right to that a will can provide the executor with Career Counseling prevent access to a parent if the agent authority during the testator’s life. This believes the visit would be detrimental misconception is one of the main reasons For Attorneys to the parent’s health. that people do not execute powers of • Revoking a power of attorney. As long attorney. Over the last few years, I have as the parent is competent, he or she can observed individuals seeking to have wills Strategies and support for revoke a power of attorney at any time prepared in a number of scenarios: when your career in or out of the for any reason. The parent should put they begin to accumulate wealth; when law the revocation in writing and inform they have children; when they retire; and • 30 Years of Experience the prior agent. when family members pass awy. These are • Over 3500 Clients • Removing an agent under power of common occurrences leading individuals attorney. If the agent is acting improp- to speak with their attorney, but are not Sheila Nielsen, MSW, JD erly, family members can file a petition by any means the only instances in when in court challenging the agent. If the a will should be prepared. court finds the agent is not acting in While an estate plan can encompass The Park Monroe the principal’s best interest, the court other documents besides these, they are 65 E. Monroe St., Ste. 4301 can revoke the power of attorney and fundamental for all individuals to protect Chicago, IL 60603 appoint a guardian. themselves and their family. Not only will (312) 340-4433 • The power of attorney ends at death. If the creation of these documents help you www.nielsencareerconsulting.com the principal under the power of attor- plan for the future, but they give you piece ney dies, the agent no longer has any of mind that you have protected your power over the principal’s estate. The family and loved ones. court will need to appoint an executor

  45 YOUNGLAWYERSJOURNAL Defense Tools to Preclude Forum Shopping By Steven A. Montalto

client recently emailed you a new tion, the plaintiff operated a motorcycle Private and Public Interest Factors civil defense matter for review. You that collided with a commercial vehicle In denying the defendant driver’s forum Apromptly gauge the allegations operated by the defendant. The plaintiff non conveniens motion, the trial court in the complaint and prepare an initial died from his injuries. Hale, as adminis- applied the Illinois Supreme Court’s strategy. Was the lawsuit timely filed? Is trator for his son’s estate, filed a wrongful analysis from Dawdy v. Union Pacific R.R., the client a suitable party? While these death action against the driver and the 207 Ill. 2d 167 (2003), and found both are valid contemplations, a recent Illinois driver’s employer, alleging the driver neg- the private and public interest factors Appellate Court decision reminds defense ligently caused the accident. Hale filed the weighed against transferring the matter counsel of an additional consideration: lawsuit in Cook County, and the defendant to Kane County. As to the private interest whether the plaintiff has engaged in forum driver sought a transfer to Kane County factors, the trial court found the parties’ shopping. In Hale v. Odman, 2018 IL App under the forum non conveniens doctrine. convenience was neutral. That is, in filing (1st) 180280, the Illinois Appellate Court, The trial court found Hale and the the lawsuit in Cook County, Hale found First District, reviewed the Circuit Court defendant driver were Kane County Cook County convenient and in seeking of Cook County’s denial of a defendant’s residents. The driver’s employer was also transfer, the defendant driver found Kane motion to transfer under the forum non located in Kane County. Of the five eye- County suitable. In analyzing access to conveniens doctrine. The First District’s witnesses to the accident, four were Kane evidence, the court favored transfer to reversal of the lower court shows that a County residents and one lived in DuPage Kane County, as most witnesses resided motion to transfer venue under the forum County. Of the 11 damages witnesses Hale in Kane County. In examining the practi- non convenviens doctrine continues to named, one lived in Kane County, two cal problems involved in making the case serve as a valuable tool to thwart forum resided in DuPage County, one was from expeditious and inexpensive, the trial court shopping. Washington and seven resided in Cook found the cost of obtaining willing witness The Hale lawsuit involved an automo- County. The accident was investigated by testimony favored Kane County due to bile collision in Kane County, Illinois, five Kane County Sheriff’s agents and one reduced parking expenses. approximately one mile from its border from the Illinois State Police. As to the public interest factors, the with Cook County. On the date in ques- trial court stated the interest in deciding

46   YOUNGLAWYERSJOURNAL localized controversies locally favored Kane Dist. 2004), and stated that merely con- Instead, the appellate court focused on County. Nevertheless, the court found ducting business in a county does not affect the mere fact most witnesses lived in Kane Cook County maintained a “palpable a forum non conveniens analysis. Applying County and the Kane County courthouse interest” in the lawsuit because the defen- Kahn, and distinguishing the Hale matter was a much closer venue than the Daley dant employer did most of its business in from Blake v. Colfax Corp., 2013 IL App Center. Cook County. The court determined the (1st) 122987, the appellate court deter- Most importantly, the Hale court unfairness associated with imposing jury mined while the defendant employer had refused to take into account Hale’s choice duty on county residents with little con- a connection to Cook County, it did not of forum in its convenience analysis. nection to the lawsuit also favored Kane perform the “overwhelming majority” of its Although Hale petitioned the court to County. In total, the trial court found the work there. Thus, at best, the defendants’ provide his venue selection significant forum non conveniens factors favored Kane connection to Cook County resulted in deference, the First District disagreed. In County, but it held the defendant driver a neutral finding under the public inter- doing so, the court reminds defendants failed to meet the standard for moving to est factors. In all, the Illinois Appellate that where the selected forum is not the transfer. The defendant driver appealed. Court found both the private and public plaintiff’s home forum, it is not necessarily On review, the Illinois Appellate Court interest factors strongly favored transfer reasonable to assume the plaintiff’s choice reversed the trial court and remanded the to Kane County. Accordingly, the First is convenient. This is particularly the case matter with directions to transfer to Kane District reversed the trial court’s denial where the accident in question did not County. The First District paid particu- and remanded the matter back to the trial occur in the selected forum. See Espinosa lar attention to a number of private and court for transfer. v. Norfolk & Western Ry. Co., 86 Ill. 2d 111 public interest factors. Under the private (1981). interest factors, particularly the parties’ Implications for Defense Counsel Finally, Hale stands for the implica- convenience, the First District looked Hale has a number of implications for tion that merely doing business within a beyond “declarations of conveniences” and defense counsel. First, Hale reminds defen- particular county is insufficient to defeat realistically evaluated convenience relative dants that not all private and public interest a motion to transfer under the forum non to Cook County versus Kane County. forum non conveniens factors need be met conveniens doctrine. In Hale, the trial court There, the court took judicial notice that to successfully transfer a matter under the originally found the defendant corporation approximately 40 miles separate the Daley doctrine. Indeed, the First District in Hale conducted most of its business in Cook Center (Cook County) from the Kane found certain private interest consider- County. On review, the First District found County courthouse. The First District ations, namely the location of attorneys while the defendant corporation did, in ultimately rejected the trial court’s reason- on the case, favored Cook County as the fact, do business within Cook County, it ing and found the parties’ convenience venue. Nevertheless, the appellate court did not perform the majority of its work in favored Kane County, as both Hale and the remanded the case with directions to the county. The appellate court found this defendant driver resided in Kane County. transfer. Hale prompts defendants to bear work, alone, was not a proper basis to deny Additionally, while the trial court found in mind that courts consider both the pri- the defendant driver’s motion to transfer. the relative ease of access to testimony and vate and public interest factors “without The next time client submits a case for evidence slightly favored Kane County, the emphasizing” any specific factor. See Lan- your review, it is important to keep in mind First District disagreed with the trial court genhorst v. Norfolk Southern Ry. Co., 219 Ill. the Hale decision and its implications of and found this factor weighed “strongly” 2d 430 (2006). Ultimately, determining motions to transfer under the forum non in Kane County’s favor, as the majority of the most appropriate forum depends on conveniens doctrine. Hale’s reversal serves as witnesses resided in Kane County. Citing the facts presented in each case. See Moore a reminder that a well-formulated motion to the Illinois Supreme Court’s decision in v. Chicago & North Western Transportation to transfer venue due to forum non con- Washington v. Illinois Power Co., 144 Ill. Co., 99 Ill. 2d 73 (1983). venviens is an effective tool to help thwart 2d 395 (1991), the appellate court held Second, Hall supports the proposition forum shopping. a 40 mile drive between counties was to that trial courts should seek to prevent be factored into a forum non conveniens plaintiffs from forum shopping. See First Steven A. Montalto is an associate in the analysis. American Bank v. Guerine, 198 Ill. 2d 511 Chicago office of Cassiday Schade LLP, con- In evaluating the public interest fac- (2002). To ensure this, trial courts should centrating in construction injury and defect, tors, the Illinois Appellate Court rejected look beyond what the parties say is conve- product liability, general liability, automobile the trial court’s conclusion Cook County nient and evaluate what the burden on each collisions, bankruptcy, toxic tort and com- maintained a “palpable interest” in the law- party actually entails. In Hale, for example, mercial litigation. suit. The First District cited to the Illinois the First District set aside affidavits from Supreme Court’s decision in Kahn v. Enter. party witnesses addressing what location Rent-A-Car Co., 355 Ill. App. 3d 13 (1st each witness thought was convenient.

  47 YOUNGLAWYERSJOURNAL

SUBSTITIONS, DISMISSALS, AND NONSUITS The Voluntary Dismissal: Getting It Right By Alexander J. Beehler

ne of the many benefits of working an order if that is the only language—the will highlight the steps both plaintiffs and in chambers with the Presiding proposed order does not mention notice defendants should take to ensure the rights OJudge of the Circuit Court of or costs. Litigants are frequently surprised of their clients are not impeded when a Cook County’s Law Division is having an when the court asks for revisions. This voluntary dismissal occurs. opportunity to see how the court admin- article aims to inform and instruct both Voluntary dismissals are governed by isters cases around their trial dates. For the plaintiffs’ and defense attorneys on volun- 735 ILCS 5/2-1009. The statute allows most part, trials proceed and are assigned tary dismissals under Illinois law. plaintiffs to voluntarily dismiss actions at without a hitch. Things can get tricky, The goal of this article is to provide a virtually any time, with certain limiting though, when there are judge substitutions, practice-ready synopsis of the law. If you conditions that: (1) the dismissal must or if a plaintiff decides to take a voluntary are interested in learning more, Richard occur before trial or hearing begins; (2) dismissal or nonsuit. Often, as the trial date Michael devotes a portion of a chapter to notice must be given; and (3) costs must looms, someone from plaintiff’s office will voluntary dismissals in his Illinois Practice be paid. If the plaintiff complies with all deliver a proposed order containing lan- Series book, Civil Procedure Before Trial. of the statute’s requirements, the right to guage such as, “Plaintiff hereby voluntarily Richard A. Michael, Civil Procedure Before voluntarily dismiss is absolute. Courts dismisses her lawsuit.” A court cannot enter Trial § 42.2, (2d Ed. 2011). This article do have discretion, however, to decide

48   YOUNGLAWYERSJOURNAL an already-filed dispositive motion at the not begin until the parties begin presenting Hosp., 210 Ill. App. 3d 253 (1st Dist. time plaintiff moves for voluntary dismissal arguments and evidence to the court for 1991). In Cook County, that means notice under Section 1009(b); but only when the an ultimate determination of their rights. must be provided pursuant to Local Rule motion, if granted, would dispose of the Bailey v. State Farm Fire & Cas. Co., 137 2.1 and Illinois Supreme Court Rule 11. entire case. Ill. App. 3d 155, 158 (5th Dist. 1985). Courts have allowed voluntary dismissals, While no appellate court has delved into even if notice is not technically proper, as Before Trial or Hearing Begins further specifics, it stands to reason that long as there is actual notice and no result- In a jury trial, plaintiff cannot voluntarily the bench trial “hearing” would normally ing prejudice. In re Marriage of Brown, 86 dismiss a case after jury selection begins. begin when opening statements begin. See Ill. App. 3d 964, 969 (1st Dist. 1980). The Illinois Supreme Court has held a Kahle, 104 Ill. 2d at 309 (concluding trial In Brown, plaintiff failed to comply with plaintiff could voluntarily dismiss its had not begun when no jury had been Cook County Local Rule 2.1 and mailed lawsuit after motions in limine, but before selected, and “counsel had made no open- notice of the motion late to defendant. a jury was examined and sworn. Kahle ing statement.”). If the judge forgoes open- Defendant objected, the trial court con- v. John Deere, Co., 104 Ill. 2d 302, 309 ing statements, the hearing would begin tinued the hearing for three days, and (1984). The Fourth District affirmed a when the first witness is sworn in. The then the trial court granted the voluntary trial court’s decision to deny a voluntary trial court could, in its discretion, allow a dismissal. The First District affirmed the dismissal motion after seven jurors were voluntary dismissal under Section 1009(c) trial court. It instructed that, while notice excused for cause and plaintiff used two after the trial or hearing begins; but parties provisions “should be strictly applied,” peremptory challenges. Baird v. Adeli, 214 are subject to terms fixed by the court and they “should not be used as a technical Ill. App. 3d 47, 51 (4th Dist. 1991). That the motion must be either stipulated to or means of disqualification.” Central to the court determined trial begins “when the in written form with supporting affidavits. court’s reasoning was that the defendant jury selection process begins.” did not suffer harm or substantial prejudice A “hearing” under Section 1009 is the Notice from the late notice. If plaintiff does not equitable equivalent of a trial; it is a bench The notice required to comply with Section give notice, however, courts will deny the trial where the court makes the final deter- 1009 must be consistent with applicable motion to voluntarily dismiss. See Vaughn, mination on the merits. The hearing does rules. Vaughn v. Northwestern Memorial 210 Ill. App. 3d at 258-59.

YLS Estate Planning Pro Bono Programs–Volunteers Needed

The Public Outreach Committee of the YLS coordinates estate planning pro bono programs for lawyers, law students, and non-lawyer volunteers to serve the community. Estate planning experience is not required, but welcomed. Training is available. Upcoming opportunities include:

Wills for Heroes Monthly workshops at which volunteers create free wills, living wills, and other estate planning documents for local emergency first responders and their spouses or partners. Save-the-date for upcoming workshops on 11/17/18, 1/12/19, 2/9/19, 3/23/19, 5/4/19, and 6/1/19.

Serving Our Seniors Advanced directive workshops in conjunction with the Center for Disability and Elder Law to assist low-income seniors in completing Powers of Attorney for Healthcare and Property and Living Wills. Save-the-date for upcoming workshops on: 1/19/18 and 4/20/19. Visit www.chicagobar.org/yls and search under "YLS Volunteer Programs" for more information and to RSVP for upcoming workshops.

  49 YOUNGLAWYERSJOURNAL

Costs v. Gerber, 95 Ill. App. 3d 947, 949 (1st judge presiding over the refiled case will The costs paid are the statutory costs Dist. 1981). consider the original action and determine defendants must pay in order to defend whether to reimpose discovery orders and the suit—appearance fees, filing fees, and Effect of Voluntary Dismissal on sanctions under Illinois Supreme Court jury fees. Galowich v. Beech Aircraft Corp., Refiled Case Rule 219(e). 92 Ill. 2d 157, 160 (1982) (affirming trial Plaintiffs must be acutely aware of the pro- Rule 219(e) punishes evasive voluntary court’s grant of “usual costs in the clerk’s cedural history of their case before taking dismissals in two ways. First, the rule bill,” but holding deposition fees were not a voluntary dismissal. If there has been a enhances the monetary burden associated recoverable). If these costs are not actually substantive ruling on a dispositive motion, with voluntary dismissals by allowing paid or tendered, they must be provided res judicata could dismiss a case after it is the court to order the plaintiff to pay the for in the order; or the record must reveal refiled. Hudson v. City of Chicago explains opposing party or parties their reasonable that the plaintiff acknowledged them as a that res judicata bars a refiled case if there expenses in defending the action—dis- binding obligation and expressed a willing- was already final judgment on a count covery expenses, opinion witness fees, ness to pay. In the Brown case mentioned stemming from the same set of operative travel expenses, and more. Second, the above, the trial court granted a voluntary facts. 228 Ill. 2d 462, 482 (2008). For rule requires the court in the refiled case to dismissal when costs were not paid but example, if you filed a two-count com- consider the prior litigation in determining plaintiff clearly acknowledged her liability plaint from a car accident, and one of what discovery will be permitted and what and willingness to pay on the record. The the counts was dismissed with prejudice, witnesses and evidence may be barred. First District affirmed. 86 Ill. App. 3d at taking a voluntary dismissal could poten- Morrison v.Wagner, 191 Ill. 2d 162, 166-67 970-71. If the defendant objects because tially end your client’s case. (2000). Defendants must file a motion for costs were not paid, or if the record does Finally, voluntary dismissals cannot be 219(e) expenses in the original action once not reveal any consent to pay costs, the taken for the purpose of evading a discovery the plaintifffiles for voluntary dismissal. motion to voluntarily dismiss is improper. order or an adverse ruling. Plaintiffs cannot Quintas v. Asset Mgmt. Group, Inc., 325 In re Marriage of Hanlon, 83 Ill. App. 3d use voluntary dismissals as an attempt to Ill. App. 3d 324, 336 (1st Dist. 2009). 629, 632 (1st Dist. 1980). Parties will substitute judges or avoid an unfavorable If you represent a plaintiff, and are going quite frequently agree to waive costs, or ruling barring an expert from testifying. to take a voluntary dismissal, you should: agree that costs are due upon refiling. An In Cook County’s Law Division, General (1) Give notice pursuant to Local Rule 2.1 agreed waiver of costs is appropriate when Administrative Order 17-1 mandates that and Supreme Court Rule 11; (2) Tender defendant acknowledges and relinquishes a refiled case will go back to the calendar costs—they are due under the statute. You the right to costs. A unilateral proposal judge who was presiding over the original can try and initiate discussion with oppos- by plaintiff for dismissal “without costs” matter. That same calendar judge will pre- ing counsel to see if they will waive costs. or “costs due upon refiling” is improper side over the refiled case, and may reinstate If so, make the proposed order an agreed and contrary to the statute. See O’Reilly all prior orders. In all Illinois courts, the order and provide language that defendant is waiving its right to costs. You can also ask defendant to agree to add the language   “costs due upon refiling.” If so, mark the order as agreed. The First District has sug- gested, “costs will be due only if plaintiff The Chicago Bar Association refiles. Payment to Defendants will be due prior to such refiling. Defendants’ right to        collect the award arises only if the Plaintiff chooses to exercise the right to refile.” Jones        v. Chicago Cycle Ctr., 391 Ill. App. 3d 101, 111 (1st Dist. 2009); (3) Make sure the       motion is made before voir dire, or before the bench trial begins with either opening      statements or the swearing in of the first         witness; (4) Understand the trial court has discretion to rule on a dispositive motion        if one is pending; (5) Be wary if there has been a final determination in part of the         case—Hudson could apply; and (6) Be aware of General Administrative Order

50   YOUNGLAWYERSJOURNAL

CBA LAW & DEBATE CLUB–REACHING THE NEXT GENERATION OF LAWYERS

Theprogram–formerlyknownasLawExplorers–wasrecentlyrechristenedtheCBALaw&Debate Clubtomoreaccuratelyreflectitscorefunction.TheClubsponsorslecturesandactivitiesforChi- cagohighschoolstudentswhoareinterestedincareersinlawandgovernment.BrettJ.Geschke of SmithAmundsen LLC has served as a Co-Chair of the Club for the past four years. He has high hopes for this year’s crop of budding advocates, who he reports and “the best and brightest I have seen,”and“would hold their own against college mock trial teams.” The program teaches students about the various parts of a trial (e.g., opening statements, cross examination)aswellasmediationandnegotiationskills.TheClubalsohasafewguestspeakers lined up for the students, including Judge Maritza Martinez and Judge Michael Hyman. Accord- ing to Geschke, this allows the students to“learn about the many areas of the law and improve upon their public speaking skills.”They also “gain friendships with fellow students from other high schools who are interested in the law.” The students aren’t the only ones who benefit from their involvement with the Club. For the attorney-volunteers, the program is a way to provide public service and mentor young people who are in a malleable period of their young lives. Geschke particularly enjoys“helping these students expand their knowledge in different areas of the law and improve upon their already impressive public speaking and advocacy skills.” The Club plans to continue to grow its student base.There is one CPS high school bussing students to the CBA building to participate in the Club, and Geschke would love to have more participants. According to Geschke,“I have awesome co-Chairs in Kevin [Kelley], Brad [Kaye] and Caroline [Lourgos] and I hope we can continue to lead this program for years to come!”Lawyers interesting in becoming involved in the Club can email Jennifer Byrne at the CBA ([email protected]) or Geschke ([email protected]).

17-1 and Supreme Court Rule 219(e). You a motion to reinstate the discovery orders, Conclusion cannot take a voluntary dismissal to avoid if they exist, in the new case once the case The language of the voluntary dismissal a judge or the judge’s discovery orders. is refiled. statute seems simple, but the nuances can If you represent a defendant and receive If you represent a defendant and plain- trip up an unaware attorney in a way that notice plaintiff is going to take a voluntary tiff springs a voluntary dismissal on you jeopardizes their client’s interests. Hope- dismissal, you should: (1) Determine when you are both present in court, you fully the explanations provided can help whether you want to object based on defec- can object based on lack of notice—assum- you practice law better and save some tive (untimely) notice. Understand this is ing you can assert prejudice. You can also time on legal research. And, as always, most likely a losing argument unless you ask for a continuance to review the file be civil with opposing counsel. Many of can assert how your client was prejudiced; and determine your position on costs and these issues can be solved with a simple (2) If a dispositive motion is pending and expenses, or if you want a previously-filed phone call. you want it to be ruled on, file a response dispositive motion ruled on. to the motion asking for the ruling under If you represent a defendant and find Alex Beehler was formerly a law clerk to Judge Section 1009(b); (3) Determine your posi- out plaintiff ex parte voluntarily dismissed James P.Flannery, Jr., Presiding Judge of the tion on costs. If you want costs prior to the its case without notice, then you should Circuit Court of Cook County’s Law Divi- dismissal, object to any order that allows file a motion to reconsider if you do not sion. Now an associate attorney at Pretzel & costs to be due upon refiling. If you are like the language in the order. If you want Stouffer, Chartered, he is also a co-chair of willing to waive costs, or agree that they are costs and they had not been tendered— the YLS Tort Litigation Committee. due upon refiling, make sure the proposed or Rule 219(e) expenses—this needs to order contains the language accurately be bought to the attention of the court. reflecting your position; (4) Determine Because a voluntary dismissal order is final if you want to preserve an argument for and appealable for defendants, a 2-1301 expenses under Supreme Court Rule motion to vacate is also proper. See Kahle 219(e). If so, this motion for expenses must v. John Deere Co., 104 Ill. 2d 302, 307 be filed in the original action; and (5) file (1984).

  51 John Levin’s Ethics columns, LEGAL ETHICS which are published in each CBA Record, are now in- dexed and available online. BY JOHN LEVIN For more, go to http://johnlevin.info/     legalethics/.

f a friend told you he was going to prac- sentation to a client. Competent represen- tice the piano, you would understand tation requires the legal knowledge, skill, ETHICS QUESTIONS? Ithat he was going to play a piece over thoroughness and preparation reasonably The CBA’s Professional Responsibility Commit- and over again until he could play it to necessary for the representation.” Com- his satisfaction. If he said he was going to ment 8 states: “To maintain the requisite tee can help. Submit hypothetical questions to perform on the piano, you would imagine knowledge and skill, a lawyer should Loretta Wells, CBA Government Affairs Direc- him sitting before an audience playing the keep abreast of changes in the law and its piece to perfection. practice, including the benefits and risks tor, by fax 312/554-2054 or e-mail lwells@ If your doctor said you had to go to the associated with relevant technology, engage chicagobar.org. hospital so she could practice an operation in continuing study and education and on your liver, you probably would not go. comply with all continuing legal educa- You might consider going if she were going tion requirements to which the lawyer is SMALL FIRM RESOURCES to perform the operation. subject.” We lawyers “practice” law–we do not Simply put, it means that lawyers have One-stopshoppingforresourcesonstaringyour “perform” law. A performance implies that to continue learning and practicing their ownfirm,marketing,businessnetworking,law there is a known beginning, middle and profession. The law itself is continually office technology training, low costoffice man- end. The piano piece ends. The patient is changing. New statutes and new cases agement consulting, and savings on insurance stitched up. The audience knows what is come about almost daily. It is obvious that going to happen. If another lawyer tells you failure to keep abreast of these changes andbusinessexpenses.FindthePortalunderthe that his client will be in the room and he would violate Rule 1.1 and likely give rise Resources tab at www.chicagobar.org. will have to “perform for the client,” you to a malpractice claim. know you can ignore the histrionics. They However, what about changes in the associated with relevant technology.” Fur- are just a performance. “practice” of law–changes in the day-to- ther driving this development, clients are However, in many instances when we go day routines on how we do what we do? questioning the technological competence into a room to solve a problem, negotiate Following court decisions and legislative of their lawyers and are asking that the an agreement or resolve a dispute, we do reports will not be of much help. We economic benefits of technology be passed not know what is going to happen or what “maintain the requisite knowledge and on to the client. To add further complex- we are going to say. We are practicing our skill” to provide “competent representa- ity, data and internet security has become skills. tion” by doing it every day–by practicing. a frequent media topic. How is this reflected in our professional And here is where we run into problems. Unfortunately, we do not get quality ethical requirements? How do we know what to practice? technical training in law school. According Illinois Rule 1.1–Competence, states: Numerous books and articles (includ- to a brief internet survey, the best way for a “A lawyer shall provide competent repre- ing this column) have been written on the lawyer to address the technology problem changes to our work environment caused is through a collaborative effort with the       by changes in technology and, especially, client, tech vendors, and (perhaps) a con-      artificial intelligence. Smart programs can sultant. And this effort has to be repeated      now do some projects that used to take as technology changes.  CBARecord  hours of lawyer time, and we are expected In other words, we have to keep practic- to keep abreast of the “benefits and risks ing.

52   Wine Tasting Withmusic by The Chicago Bar Association Symphony Orchestra &ChorusEnsembles

Friday,February 8, 2019|5:30-7:30 p.m. CBA Building, 321 S. Plymouth Ct., Chicago, IL

$50 Admission -All Are Welcome! Wine tasting &small bites/appetizers All guests will be entered in the grand prize drawingfor acase of wine from John Vishneski’s personal collection.

To purchase tickets, contact Tamra Drees, CBA Events Coordinator, at 312-554-2057 or [email protected].

To benefitthe CBA Symphony Orchestra &Chorus threatening families first and gathering evi- dence second. The CPS protocols required that children be deemed “unsafe” based SUMMARY JUDGMENTS solely on allegations made to the hotline. This was enough cause to remove children REVIEWS, REVIEWS, REVIEWS! from their parents for unknown periods of time pursuant to a safety plan without      end dates. Over 10,000 Illinois families each year were being separated under these safety plans in the late 1990s, per the CPS attempts at modifying legislation. One deputy director’s estimate. However, no thing is crystal clear: Redleaf is dedicated one could be sure as records were not kept. and passionate about protecting families. In March 2005, Judge Pallmeyer issued Redleaf believes the CPS system must a ruling rejecting CPS’ argument that do a much better job of distinguishing true safety plans were voluntary and deemed abusers from reasonably good parents who them coercive. In December 2005, Judge deserve protection from having their chil- Pallmeyer issued a second decision that dren removed from their custody. She does established the remedy that safety plans not believe CPS is always incorrect–but she could remain in place for 14 days before believes CPS frequently errs on the side of a review was required. Redleaf’s appeal of removal to the detriment of children and this 14-day separation period was denied families where there is no abuse. by Judges Posner, Easterbrook, and Evans They Took The Kids Last Night–How the Child The book references one of her most in the Seventh Circuit Court of Appeals. Protection System Puts Families at Risk By Diane L. Redleaf memorable cases: Dupuy v. Samuels. This The book also references In re. Yohan ABC-CLIO, 2018 case was filed in 1997 as a class action K. In this case, a five week old boy named lawsuit. It took over 13 years, 5 federal Yohan and his two-and-a-half year old ReviewedbyKatie Liss Circuit Court appeals, a U.S. Supreme sister were separated from their parents Court denial of review, plus a total of 26 for over a year and half. For the first five attorneys, 3 law firms, 2 nonprofits, and weeks of Yohan’s life, he experienced sei- more than a dozen law clerks, before it was zures, seizure-like symptoms, and bleeding formally closed. Diane and her team repre- in his head and retinas that doctors could iane Redleaf spent the last 33 sented approximately 145,000 individuals not explain. Numerous medical tests in years of her 38 years as an attor- whose names were placed and retained in May and June 2011 triggered an automatic Dney focusing on the Illinois child the Illinois child-abuse register following internal referral to the hospital’s child protective services (CPS) system. This a CPS investigation with an “indicated” protection team, as they suspected Yohan book highlights the challenges in her cases, finding of abuse or neglect without having had shaken baby syndrome. The hospital examples of her clients’ frustration with any opportunity to contest the finding on called the CPS hotline to report the parents navigating the CPS system, some of the the merits. Individuals on this list were not despite their adamant denials of abuse. A obstacles she faced in litigation, and her able to work with children. Judge Rebecca CPS investigation began and a safety plan R. Pallmeyer’s 101 page decision found was put in place requiring supervision of that the state violated the plaintiffs’ con- the children with their parents by relatives.       stitutional rights to due process. In 2003, Trial on this complicated case began in the federal court directed the state to do May 2012 - almost one year after the safety     fuller and fairer investigations for abuse plan was put in place requiring the children      and neglect. to live with relatives. The juvenile court       However, this did not provide a remedy judge found Yohan had been the victim  for safety plans–CPS’ formal procedure of child abuse by the parents after hearing on where to place children removed from the testimony of 11 doctors, caseworkers, parents. Redleaf observed CPS caseworkers service providers, and a guardian ad litem.

54   The judge stated that there was a possibility that one of three rare medical events could have occurred in Yohan’s case. However, he Law At The Library found it unreasonable to conclude all of these rare incidents could have occurred at once. The CBA is proud to partner with the Chicago and Evanston public library systems to offer a free monthly legal Redleaf appealed the finding of abuse on information series offering practical insight for the general public into a wide variety of everyday legal topics. behalf of Yohan’s parents. Justice Michael ff B. Hyman’s decision swiftly overruled the CBA members will o er their legal expertise in free seminars that will be held each month at Chicago’s Harold finding of abuse and ordered the return Washington Library and the Evanston Public Library. The sessions are free and registration is not required. For of both children to the parents. Justice a complete schedule of dates for 2018-2019, go to lrs.chicagobar.org. Hyman’s opinion faults the juvenile court for allowing the state to prove its case of abuse by relying on a “constellation of injuries” theory. This argument does not Bringing Lawyers & Technology Together: ABA TECHSHOW 2019 meet the state’s burden of proof. Redleaf Save with CBA Member Discount believes that the opinion ratifies the parents’ presumption of innocence. The book ends with an epilogue called “What Needs to Be Done.” Redleaf believes that CPS policies and practices need more checks and balances. For example, families who cannot afford counsel do not have a right to appointed counsel during a CPS investigation of register listing challenge. She believes this is unfair to families who are at a disadvantage due to race, class, his- tory of substance use, disabilities, domestic violence, or criminal conviction. She also believes the risk of removing children from ABA TECHSHOW has over 31 years of experience bringing lawyers and technology together. Legal work families must be reduced to make sure that this only happens in cases of actual abuse, today is dependent on technology to manage day to day activities, to practice more competently, and to in life-threatening emergencies. Redleaf serviceclientsmoreeffectively.ABATECHSHOWteachesyouhowtechnologycanworkforyou.Throughthe also believes the state’s burden of proof in expansive EXPO Hall, CLEs, presentations, and workshops, you will be able to get your questions answered child protection cases should be height- ened (i.e., from the preponderance of the and learn from the top legal professionals and tech innovators, all under one roof. Regardless of your evidence to clear and convincing evidence), expertise level, there’s something for you at ABATECHSHOW. as relaxed burdens of proof give the state every possible advantage. AsamemberofTheChicagoBarAssociation,youcanregisterforABATECHSHOW2019ataspecialreduced Redleaf and her colleagues continue to rate. This discount only applies to registrants that qualify for the Standard registration and will save you fight on behalf of families at the Family $150.Youcanregisteronlineatwww.techshow.com/pricingandincludethisuniquediscountcodeEP1901 Defense Center (which she founded in 2005), the National Center for Housing at checkout to receive the discount. and Child Welfare, and the United Family Celebrate over 31 years of legal technology and innovation. Network with legal technology experts from Advocates (which she founded and co- chairs). around the globe, February 27–March 2, 2019, at the Hyatt Regency Chicago. Don’t forget to visit www. techshow.com for current information on ABA TECHSHOW 2019, the best place for bringing lawyers and technology together.

  55 

Big Little Laws–The 2018 Bar Show Briscoe, Jessica Fletcher, and Scooby Doo) were gonna getcha” (“The Rhythm is and others hunt for the script. Gonna Get You”) and “Turned the House ReviewedbyAdam Sheppard President Trump got things started by Around” (“Tu rn the Beat Around”). singing of his summer fling with Supreme Republican Congresswoman Murkowski he 95th annual Bar Show was one Leader Kim in “Summer Nights” (Grease). and Democratic Congresswomen Pelosi for the ages. For the uninitiated, Trump was then Putin’s (literal) puppet in and Waters sang across the aisle in “The Tthe irreverent musical comedy a parody of Chicago’s “We Both Reached Middle” (pop song by Zedd, Maren revue parodies local and national politi- for the Gun.” In this version, “the end of Morris, Grey). cal, sports, and showbiz figures. The our democracy has now begun, begun, The tech sector made it into the fold this writers work through opening night to begun, oh yes, the end has now begun, year. Alexa, the device (an actress dressed as incorporate up-to-the-minute news sto- now begun.” World leaders Merkel, an Alexa) sang to her operator that he made ries. The show’s title this year, “Big Little Macron, May, and Trudeau lamented her feel “Like an Actual Woman” (parody Laws,” was a play on “Big Little Lies,” the Trump’s threat to pull out of NATO of Carole King and Gerry Goffin’s “Natural popular 2017 HBO show. The “plot” was a in “goodbye reliable NATO, NATO, Woman”). Mark Zuckerberg testified in the mystery–the opening musical number was NATO’s being destroyed” (sung to Guys Senate that Facebook is, in fact, “Getting “A Mystery” (parody of Something Rot- & Dolls’ “The Oldest Established”). to Know you, Getting to know all about ten’s “A Musical”). The show’s script goes The comedy gods also granted cert. this you” (The King and I). missing in the first scene and famed inves- year to poke fun at the Supreme Court. Jus- As for Chicago politicians, Bill Daley tigators (Holmes, Clouseau, Colombo, tice Kavanaugh recounted his high-school reminded his competition in the mayoral years in a “teenage wasteland” (The Who). race of his distinct advantage: the public      Justices Sotomayor and Kagan beseeched has “grown accustomed to our name”       Justice Ginsburg to “Hold on” (parody of (ung to “I’ve Grown Accustomed to Her     Wilson Phillips’ song with the same title). Face,” My Fair Lady). The other mayoral      A diverse group of newly-elected con- candidates, however, implored the public:    gresswomen celebrated their victory in a “Take a Chance on Me” (Mama Mia). In a pair of Gloria Estefan songs: “the Women show-stopper, Mayor Emanuel, donning a

56   his twitter, the wonderful tweeter of ours.” Paul Ryan wondered what he could have Having trouble signing in at www. been if he “only had a spine” (“If I only had chicagobar.org? a brain”). Melania longed for the days when she lived “Somewhere over Manhattan way For logins created prior to August 2018, CBA up high” (“Over the Rainbow”). Ivanka logincredentialshavebeenreset.Yourusername acknowledged “complicit am I” (sung to is your member number and your password is “The Wizard and I”). The show would not be complete with- your member number followed by your last out the Joe Stone/Fred Lane vaudeville name (all lowercase and no spaces). Please use straight-man/eccentric partner act–and as these login instructions initially and then you always, they delivered. Another scene that highlighted the cleverness of the show’s may change your password via “My Member- writers was a play on Abbot & Costello’s ship”at www.chicagobar.org–click on“Change “Who’s on First.” In this version, the back- Password or Username”in your profile. and-forth concerned which bands would perform first for a retro rock concert: To reset your username or password from the COLUMBO: Can you give me a little sign in box, click on ‘Forgot Login’ or ‘Forgot information about which groups are per- Password’to reset them. If you need further as- forming when? sistance contact the CBA at [email protected] Mama-Mia-esque, gold dance suit, bedaz- HUGO: Sure zled the crowd with Rahma Mia. That was COLUMBO: Who’s on first or312/554-2000forhelpduringbusinesshours. one of several numbers that highlighted the As for pop culture, the “Real House- terrific dancing and choreography this year. wives of Cook County” premiered on The show closer, pre-encore, was the The other that comes to mind is “Rats”– Bravo. (Parody of “Beauty School Drop upbeat “Raise You Up/Just Be” (Kinky actors in life-sized rat outfits scurried about Out,” Grease). Roseann Barr self-reflected Boots). In this version, the cast exalted the the stage to the tune of “Jellicle Songs for in “Oops I did it Again” (Britany Spears). Bar Show for “raising up” the cast, crew, Jellicle Cats” (Cats). Matt Lauer explained, “What I did for and crowd. The Bar Show is audition-only, and law- Love” (Chorus Line). In the Food Chan- As always, the show encored with the yers completely comprise the cast. It’s obvi- nel’s annual Vegetable of the Year show, Bar Show original “Junior Partners,” the ous that these lawyers have musical-theatre avocado boasted, “I’m the thing in Guaca- show’s pièce de résistance. Per tradition, training. In “Make Our Garden Grow” mole” (“How Are Things in Glocca Mora,” the CBA President joins the cast on stage (Candide), the actors nailed the difficult Finian’s Rainbow); lettuce crooned, “The on opening night to sing a line. This year, operatic ballad (in this version, cannabis Lettuce Sits Tonight” (“The Lion Sleeps CBA President Steven M. Elrod, a Bar entrepreneurs were seeking a loan). In Tonight”); asparagus welcomed the “Age of Show enthusiast, cast member wanna-be, another vocally impressive number, Sarah Asparagus” (“Aquarius,” the Fifth Dimen- and one of the strongest and longest sup- Sanders remained defiant in “And I Am sion); but “Kale is the Victor” (Michigan porters of the show, took the stage for every Telling You I’m Not Going” (Dreamgirls). fight song). one of the show’s four performances, and The sets too were notable this year. In a series of short segments, Governor- belted an entire verse (solo). Elrod (half- In Willy Wonka’s Chocolate Factory, elect J.B. Pritzker sang “Oh What a Beauti- jokingly) declared to the audiences that the Oompa Loompas who worked for Trump ful Morning” (Oklahoma); Colin Kaepe- only way he was able to get to be on stage interacted with “The Candy Man” (Sean rnick sang “I Want to Kneel in America” at the Bar Show was to be elected CBA Hannity); Stormy Daniels sang of her (West Side Story); a now-banned plastic President. President Elrod said this about “Golden Ticket”; and Michael Cohen straw parodied “You are My Lucky Star the show: “After 40 years of attending the admonished Stormy: “Hush, little lady, (Straw)”(Singing in the Rain); Omarosa show, it is hard to believe, each year, that don’t say a word, Donald’s worried you’ll sang her name to the tune of “Oklahoma”; the show could keep getting better; but it be a mockingbird.” In a parody of Wonka’s Giuliani and Dershowitz lamented their does. This year’s show could have been the “Pure Imagination,” Trump governed with fall from grace in “Maim” (parody of best ever, primarily because of the highly “pure intimidation.” Against a Wizard “Mame”); and Elizabeth Warren invited talented singers and dancers in the cast this of Oz backdrop, Mike Pence, Lindsey the public to “come see my DNA” (parody year, and of course the incredibly creative Graham, and Susan Collins were “off to see of “Cabaret”). and witty writers (all lawyers)!”

  57 Murphys Law CLASSIFIED ADS continued from page 30      OFFICE SPACE Lord LLP…David S. Mann, longstanding member and partner at Holland & Knight,  We connect lawyers who share office space. List your has retired…Danielle Hirsch, Assistant   empty law office at www.LawSpaceMatch.com. Advertise in Director of Access to Justice Division,     40,000 zip codes instantly. Rent your law office to lawyers Administrative office of the Illinois Courts,      seeking asharedspace. Show lawofficeamenities and upload has taken a position as Principal Manage-     six photos. Search for LawSpace for free. Also, Attorneys post   their profiles. ment Consultant at the National Center for State Courts. Alison Spanner will suc-      CLASSIFIED AD RATES ceed Danielle Hirsch as Assistant Director      of the Access to Justice Commission… Theratesforclassifiedadsare$2.50perwordforCBAmembers   Sondra Denmark, Gerardo Tristan, Jr., and $3.50 per word for nonmembers. Checks payable to The  Chicago Bar Association must accompany all ads. Mail to: Lynn Weaver Boyle, James T.Derico, Jr., Classified Ads, c/o CBA Record, 321 South Plymouth Court, and Kerrie Maloney Laytin were recently Chicago, IL 60604-3997. appointed to the Circuit Court of Cook County…Congratulations and best wishes to Judges Alexander P. White, Robert NEED MEETING SPACE? Bertucci, Sebastian T. Patti and Carole K. Bellows on their recent retirement. The CBA has a variety of meeting rooms and can provide catering and audio/visual services for cli- Condolences Condolences to the family and friends of entconferences,firmmeetings,socialgatherings Judge John F. Hechinger, George S. Fei- etc.CallMicheleSpodarek,CBAConferenceCenter well, John P. Coleman, Chester Slaugh- ter, and Gene Niezgoda, Administrator, Manager at 312/554-2124 for details. First Municipal District.

     

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