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INSIDE... Clinical Legal Education: More Important Than Ever What Students Say by Thomas F. Geraghty, Associate Dean of Clinical Legal Education About the Legal Clinic pp. 6-9 ne of the most devastating problems facing our If it were not for our clinical society and our system of program, our law students would Larry Marshall Asks, O justice today is the burgeoning be unlikely to experience the "What Do We Owe People incarceration of young people who juvenile and criminal justice Who Have Been Wrongly are overwhelmingly poor and systems first-hand. They would Convicted?" disproportionally non-white. study basic principles of criminal p.16 Members of the legal profession, law and of criminal procedure; judges, prosecutors, and public they would read about statistics The Children and Family defenders see the tragic parade of and trends, but they would never Justice Center: young people through our courts meet a young person who faces a Fourth Year Report and into our detention centers and life of incarceration or a victim p.21 jails-the result oflack of oppor- who has suffered a loss. They tunity, poor educational systems, would never experience the ways drugs, and lack of support for in which our justice system decides The families in crisis. Our judges and innocence or guilt; they would Community Law Clinic lawyers see the economic and never see the impact of a sentence p.27 social costs of our failures to on someone they know. intervene earlier. The tragedies of victims and offenders are played First-hand experience in address­ Thank You out in courtrooms. ing the problems of disadvantaged Pro Bono Volunteers, clients in our justice system Adjuncts, Why lead with this? Because the develops skills as well as sensitiv­ and Donors clinical program is designed to ity to systemic problems. Although pp.9,36,44 provide a well-rounded education the development of skills is impor­ for future leaders-for those who tant, the creation of a corps of will solve the problems that the practitioners who care about the legal profession, as the guardian of quality ofthe administration of justice, must grapple with. (please tum to p.2) edit & layout: Barbara Reinish News atut Notes D justice is even more important. The most self-reflective programs courses and supervise extemships. clinical program provides skills within law schools. The bulk of case supervision of training, training for the zealous students has been taken over by and ethical practice oflaw, training Another challenge facing clinical younger faculty supported for the for professional responsibility, and programs is that of funding. The most part by grants and by training to recognize and address larger the program, the more attorney's fees. The remaining systemic failures in agencies and significant the challenge. With the challenge is to provide permanent courts. The clinical program demise of the Federal Title IX support for our eight non-tenure supports the education of practi­ Higher Education Act, which track clinicians, who have the tioners who will make positive funded substantial portions of major responsibility for supervis­ contributions to society. clinical programs around the ing students on cases. country, many law schools have struggled to maintain their in­ We are employing a number of the challenges house clinics. Clinicians have, in strategies to meet this challenge. addition to their roles as teachers, First, the clinical program contin­ he wonderful thing about a assumed the roles of fundraisers, ues to seek more support from the law school clinical program grant writers, and negotiators with University, keeping in mind that Tis that it is always faced law school and university adminis­ the University has many competing with challenges that keep it trators. Few clinical programs requests for resources. The Univer­ relevant and vital. have shut down as the result of the sity recently did agree to support cut-back in federal funding. Help one long-term and one short-term There is the challenge of develop­ has come in the form of creative position in our clinical program. ing a program in which the work alliances with other legal services that students do builds skills and providers, increased support from Second, the Clinic continues its devotion to professionalism. There universities, and generous alumni efforts to secure grant funds to is the challenge of maintaining the giving in response to more aggres­ continue its work. During the last educational quality of the program sive fundraising efforts. five years the clinical program has and ensuring that it is staffed with obtained grants totaling faculty who enjoy the combination For example, the University of $5,502,749 to support its case­ of teaching and practice. There is Chicago has just received a large work, supervision, and research. the challenge of practice, shared gift to build a new clinic; Harvard jointly by students and faculty, that has a free-standing legal services Third, the Clinic plans to continue contributes to a unique educational center; Yale renovated its clinic; to earn attorneys' fees. During the experience and provides the raw American University has just last five years, Clinic attorneys material for rich learning. dedicated a new clinic. These have earned $473,462 in statutory schools have also established fees, all of which have been spent Another challenge involves defined term employment relation­ by the Law School to support its repeatedly explaining and re­ ships with their clinical faculty. clinical program. During the next defining the goals of a clinical Leading law schools have recog­ year, we plan to explore whether program. This challenge arises nized the importance of clinical projects within the Clinic might because of the desire of clinicians education to legal education and to become self-supporting through to perfect models of clinical the profession, and they are fees consistent with the Clinic's education and because of the stabilizing and integrating clinical emphasis on student participation critical eye cast on clinical pro­ programs into their curricula. in the representation of clients. grams by non-clinical faculty Projects in which clients pay fees regarding the value of clinical Northwestern has been a leader in might constructively expand the pedagogy and the resources this effort: it was one of the first Clinic's work into the commercial devoted to it. As such, clinical law schools to place five of its area. programs are usually the most clinicians on the tenure track back often evaluated and, therefore, the in 1976. Now, three tenure-track Fourth, the Clinic will continue its clinicians teach simulation-based efforts to seek annual gifts from

DNCIJJ$ a11JI Notes 2 alumni and friends. During the last thoughtful, and reflective profes­ program in community-based five years, the clinical program has sional lives. These courses also interviewing and counseling gratefully received a total of owe their success to the many training; Angela Coin has pro­ $173,692 in alumni contributions. adjunct professors whose names vided creative and energetic The clinical faculty will also are listed on pages 36-37 of this leadership for our Community Law continue to seek larger gifts from newsletter, and who give their time Clinic by recruiting and coordinat­ alumni and friends. To date, the so generously. ing pro bona representation of clinical program has received five children in delinquency proceed­ endowments which generate an The "live client" portion of the ings and providing a community annual income of $61,455. clinical program also continues to setting in West Town where our thrive, thanks to the dedication and law students can practice. N~w Our fundraising goal is to secure enthusiasm of our faculty: Cynthia projects now under consideration several more endowments to Bowman, Bruce Boyer, Steven involve disability rights, commu­ support the work of our young Drizin, Laura Miller Eligator, John nity development, and more work clinicians. The clinical faculty Elson, Derrick Ford, Cheryl on behalf of condemned prisoners. hopes to identify donors who might Graves, Zelda Harris, Bill Kell, consider providing the kind of Larry Marshall, and Angela Coin, support necessary to ensure the on­ the director of our West Town enthusiasm for practice going presence of a strong "real Community Law Clinic. The client" legal services/public devotion of Bruce Boyer, Steven ur clinical faculty believe interest-based clinical program Drizin, Laura Eligator, Derrick that the communication of within the Law School. Of course, Ford, Cheryl Graves, Zelda Harris, Oenthusiasm for practice is an endowment to support any and Angela Coin is made all the an important component of our aspect of the clinical program more remarkable by the fact that educational message. Enthusiasm would be most welcome, as our they labor long hours without any for practice means generating other needs include improved form ofjob security. excitement about lawyering on office space, better computer behalf ofindividual clients and equipment, expert witness fees, Our young clinical teachers are the engendering the belief that a and general litigation costs. most able and talented faculty that practice which includes con­ any law school clinic could hope to sideration of the policy issues have. In addition to their skills as affecting the public interest will the clinical program teachers and lawyers, they are ultimately be the most satisfying. leaders in their fields. Bruce Boyer We want our graduates to become he clinical program contin­ is an expert in legal issues on "good citizens" of the legal profes­ ues to prosper, thanks to family preservation; Steven Drizin sion-lawyers who, during their Tthe wonderful work of has become a local and national professional lives, will work for faculty, staff, and students. Steve leader in the formation ofjuvenile their clients and for justice. Lubet's Program on Advocacy and justice policy; Derrick Ford and Professionalism is rated as one of Laura Eligator are working to This enthusiasm for practice, and the best in the country and pro­ develop a practice which will focus for the "good citizen" potential for vides students with effective on the relationship between special practice, is sustained by encourag­ training in ethics, professional education needs and juvenile ing our faculty to practice in the responsibility, and trial advocacy. delinquency; Cheryl Graves's areas that fascinate them and by Bob Burns continues to develop program involves students going selecting faculty who are involved creative approaches to immersing into the community to reach young in reform through practice. In students in evidence and ethics. people at risk of delinquency; addition, the faculty who teach The students who complete the Zelda Harris has become an expert enthusiasm for lawyering practice, Lubet/Burns sequence of courses in the representation of victims of practice what they preach. They are engaged in their education and domestic violence; Bill Kell has are "good citizens" in the sense are well-prepared for effective, taken a leadership role in helping the Clinic develop a comprehensive (concluded on p. 4)

3 News and Notes D that they are leaders within the should be better special education profession who work to improve programs for the school children of in conclusion the laws and the institutions which Chicago. affect the lives of their clients. e have been very Several projects within the clinical John Elson's role in raising the fortunate during the program are designed to help our level of awareness about abuses in W last five years to students recognize the "good domestic relations practice in attract significant foundation citizen" potential ofgood Chicago is well known. John's support for our law and institution­ lawyering. The Children and work in advising the state legisla­ al reform efforts. While we hope Family Justice Center, directed by ture regarding laws prohibiting that this support will continue for Bernardine Dohm, is perhaps the sexual relations between divorce the short term, and although we most well-developed. Under lawyers and clients, and defending will continue to solicit foundation Bernardine's leadership, the divorce clients against excessive support for new and innovative Children and Family Justice Center fee claims, has brought attention to programs, dependable financial has become a local and national the need to raise the level of ethics resources are necessary to ensure leader in juvenile court reform and and professionalism in the domes­ continuity, high morale, and in issues and initiatives affecting tic relations bar. creativity. Our clinical program children and families in crisis. plans to spend considerable time Larry Marshall continues his work and energy on securing a solid The Center's role as a resource to to free innocent clients; to make endowment for the program. This the Juvenile Court of Cook County our justice system more conscious effort will be made in conjunction is now well-established. The of the need to take claims of with the Law School's newly Center is helping the juvenile court innocence seriously; to create announced capital campaign with create an integrated case manage­ awareness of systemic problems the enthusiastic support of Dean ment computer system to provide within the criminal justice system David Van Zandt. I look forward complete information about that result in the conviction of the to working with David to meet the families and children to judges, innocent; and to challenge the challenge of building a firm public defenders, state's attorneys, system to confront such injustices. foundation for the clinical and detention intake workers. The most remarkable of these program's future. Center staff also work on perma­ cases was the Cruz case, discussed nency planning in neglect and in last year's newsletter. As abuse cases. Their most recent recently as December 1996, initiative is a joint project with the several of the police officers and University of Chicago's Depart­ prosecutors in that case were ment of Psychiatry, to help the indicted for obstruction ofjustice, juvenile court's Department of based on an investigation led by Clinical Services to perform its job Special Prosecutor William Kunkle , better. ('69). This case has continued to be the object of national attention. The Clinic's Disability Rights Larry's project has also included Project, headed by Laura Eligator several other cases in which and Derrick Ford, has also taken a defendants have been freed after leadership role in ensuring that conviction and imprisonment. His children with disabilities, who need important work ensures that we are Thomas F. Geraghty special education programs, have appropriately skeptical of our access to them. The Clinic has system's ability to do justice. taken the lead in a major lawsuit Without that skepticism, our against the Chicago Board of system would not have the incen­ Education, the result of which tive to do better.

0 News ana Notes 4 Message from the Dean by David E. Van Zandt

We-the faculty, students, and staff at rapidly changing legal profession and social

Northwestern-are engaged in a major strategic environment that poses innumerable challenges planning effort that will set the course for the to our educational mission. Law School for years to come. Our overall goal I view these challenges as opportunities is to raise our already excellent school into the for us to revisit what we do and how we can ranks of the three or four very best law schools in improve. While our planning is still in the early this country. To achieve this goal, we will be stages, I am sure that the Legal Clinic will entering a substantial capital campaign. The emerge as a key element in our plan to make the Legal Clinic has been one of the jewels of the Law School a leader in legal research and Law School and will continue to shine as we education. The Legal Clinic will do this by move forward. remaining an innovator in the areas in which it

I believe that our Legal Clinic is one of is already a national force and by expanding into the very best in the nation. Its strength is not new and promising areas of pedagogical activity. only in its excellent and expanding live client I hope that this innovation will increase the program, but also in its innovations in its integration between the teaching in the Clinic simulation teaching, its outreach to communities, and the rest of the law school experience. and its law reform efforts. I am immensely Another important goal in our planning proud of all aspects of our program-the for the Legal Clinic will be to provide a firmer Children and Family Justice Center, the Disabil­ financial foundation for its activities. This will ity Rights Project, the Community Law Clinic, come from expanding and diversifying the base the integrated simulation program, and the of its financial support through increased externship program. Associate Dean Tom endowments from the capital campaign and the Geraghty along with the clinical faculty and staff identification of other revenue sources. As we have put together a strong program that provides move forward, I hope that you will continue to Northwestern students with a broad range of support the Legal Clinic in every way that you opportunities to expand their learning experi­ can. ence. And they have done this in the face of a

5 News atl(/ Notes 0 Representing Derrick Hardaway,

The three A Juvenile in Criminal Court articles that by Angela Daker ('98) follow were written bya I spent my first summer of preparation for trial. Not only did Tom and Steve listen current law law school clerking in the Legal to my opinions, they encouraged students working on the student and Clinic. Since I had been interested in case to give their opinions. Even though I was inexperi­ two former working with juveniles for quite some enced, Tom and Steve always treated me as a peer. This law students, time, I thought working in the Clinic actually shocked me because I don't know how many respectively. would give me the chance to finally lawyers actually listen to and consider the opinions of do something meaningful and their student clerks. They express rewarding, as opposed to most of the the influence other summer jobs I have had in my I watched Tom, Steve, and Angela Coin spend that clinical life. I would have never guessed that their evenings and weekends preparing arguments and education my experience that summer would witness examinations. I saw them fight for Derrick's life. has had in not only shape my understanding of In many ways, I felt as ifl weren't doing enough for their lives how an attorney should represent a Derrick, because I really wished I could stand up in court and on their client, but also impact my entire and advocate for him. But I came to recognize that there professional perception of the criminal justice are ways to advocate for a client besides standing up in careers. system. court. I had the opportunity to do all I could to help prepare for trial and I truly am grateful for that. I know Early last summer, I was that the time and energy students spent working in assigned to work on Derrick preparation for trial had a positive effect on the represen­ Hardaway's case with Tom Geraghty tation he received. and Steve Drizin, who represented Derrick. I knew something about the To my surprise, Tom asked me to sit at counsel case because of all the media atten­ table during trial. I was excited because I felt it would tion it had received in 1994. Derrick give me the opportunity to do something more for was 14-years-old and indicted on first Derrick. Throughout his trial I sat next to him and I "I don't degree murder. The person charged explained everything to him, answered his questions, and with him was his older brother; I hoped that my presence made him more comfortable know if I Derrick was charged under an than he might have been otherwise. Sitting at counsel will ever accountability theory. In 1994, table also allowed me the opportunity to voice my have Northwestern Legal Clinic repre­ opinions about issues as they came up during the proceed­ sented Derrick at a transfer hearing. ings and to participate in side bars and conferences in another Unfortunately, the judge decided to chambers with the judge. I also was able to observe voir trial transfer Derrick to criminal court, dire and see what jury selection in a high profile trial with where he would be tried as an adult. complicated issues such as class, race, and gangs was like. experi­ I don't know ifl will ever have another trial experience ence When I started at the Clinic, like that in my life. like that we were preparing for trial. I began to develop a close relationship with Representing Derrick Hardaway has given me in Derrick, and I came to feel a sense of some of the most difficult professional experiences I will my life." responsibility for him. Derrick was probably ever have. I became very close to Derrick and, no longer just Steve's and Tom's of course, one of the golden rules is not to become client, he was my client as well. For "emotionally attached" to your clients. I have clearly the first time in my life, I knew what broken that rule, and I don't think I believe in that rule. I it was like to feel the professional believe that ifl weren't close to Derrick, I wouldn't have obligation a lawyer has to her client. voiced my opinions so passionately or worked as dili­ I developed my own opinions about gently on his case. We were not fighting for some strategy and tactics, and I always neutral-faced "client", we were fighting for Derrick, a voiced those opinions at the numer­ spectacular individual I believe in and care a great deal ous strategy sessions we had in about. Caring for Derrick enhanced my commitment to him and to his case. DNcws amt Noles 6 This is not to say that being close to him did not We are currently preparing make losing his trial one of the hardest things I have ever for Derrick's sentencing hearing. had to deal with, because it did. All of the students who We are calling many people in the worked on Derrick's case were extremely upset when we Juvenile Temporary Detention received the verdict. Although we knew there was a great Center as character witnesses for likelihood of losing at trial and I tried to prepare myself, I Derrick. We hope to keep his guess you can never prepare yourself for something like sentence as far away from 100 years that. as possible. We are also trying to figure out how to keep him in the Everyone at the Clinic was conscious of the Juvenile Division of the Department feelings of all of the students who worked on this case. of Corrections until his twenty-first Tom and Steve talked to the students about how hard it birthday. was going to be ifwe lost and told us we should all feel "I very good about the work we had done on behalf of The entire fall semester of learned Derrick and the quality of the representation we gave him. my second year was consumed by This demonstrated to me how even at the height of this trial. But I learned more about more preparing for a very serious and intense trial, the attorneys being a lawyer and an advocate by about at the Clinic are always conscious of their roles as teachers working on this one case than I and educators. In addition to teaching students how to probably have from most of my other being a write motions and briefs and prepare examinations, they courses combined. Seeing someone lawyer ... are also concerned with teaching students how to deal as special as Derrick convicted of on this with very practical issues, such as how to handle losing a murder has only made me more trial when there is a great deal at stake for your client. I certain that I have made the right one case can personally say that I think that going through this career choice. Today, more than than I experience, under the supervision of the attorneys at ever, I want to use my legal educa­ Northwestern Legal Clinic, has helped me deal with it tion and skills to fight for kids who probably better than I would have thought. are in Derrick's position. have from Seeing any 16-year-old client convicted under Ultimately, I am very these circumstances would have been difficult. But in my grateful to Tom and Steve for giving most of eyes, Derrick is much more than some 16-year-old-he is me the opportunity to play a role in my other a person I respect, admire, and care a great deal about. In the representation of a client I the Juvenile Temporary Detention Center, where he is believe in and care a great deal courses currently being detained, Derrick has a wonderful reputa­ about. I do not think justice was com­ tion. Teachers, counselors, and staff love him and always served in that courtroom when bined ." talk about what a good student he is and what a pleasure Derrick was convicted of first-degree he is to work with. Derrick tutors in the art program at murder. I believe that we fought the detention center; he has been in plays that have been very hard for Derrick and we gave held there and is a mentor to younger kids who are being him quality representation. I guess detained. Everyone at that facility, from teachers to that is the most important lesson I security, has expressed shock and dismay at seeing Derrick can take from this experience. convicted. Derrick is somebody whom people in the Obviously, it is difficult to deal with detention center think could be a very productive member losing a case where your client's life of society if only given the chance. is literally at stake. But I hope, and I think, that I was able to contribute Instead of looking forward to a bright future, something positive to our representa­ Derrick now looks forward to serving from 20 to 100 years tion of Derrick. And because of that, in a penitentiary. Derrick's birthday is coming up in I feel good about my involvement in March, and that is not something for him to look forward this case. to. On his seventeenth birthday, Derrick will be consid­ ered an adult by our criminal justice system and the Department of Corrections can, and probably will, send him to an adult penitentiary where he will serve his time.

7 Newr and Nok:S D Lynn Weisberg ('93 JD) Gardiner Koch & Hines practicing in the areas of civil and criminal litigation, domestic relations, and juvenile matters

My last year of law school career, I have made a commitment to proved to be my most rewarding, in Based on errors made in the do at least two pro bono juvenile large part due to my work with juvenile transfer hearing, the Legal cases each year, some of which have Northwestern University's Legal Clinic and I collaborated on the been referred to me by the Legal Clinic. Tirroughout the year, I appeal to the Illinois Supreme Court. Clinic. Further, my work with the worked ~ith Tom Geraghty, Steve Under the guidance of Tom and Legal Clinic in the juvenile courts Drizin, and a small group of fellow Steve, the Clinic students drafted a has caused me to volunteer my time students defending juvenile matters­ superb brief, dealing with important, at the Cook County Juvenile Tempo­ specifically two transfer proceedings but seldomly addressed, juvenile rary Detention Center, where last in which two different juveniles, both issues, challenging the validity of the year, together with other young charged with first-degree murder, client's transfer to adult court. With lawyers, I tutored residents on a one­ faced hearings to determine whether the help and preparation of the Legal to-one basis every Thursday night in they would be tried in the adult or Clinic, I argued my first appeal reading and math. I now serve as an juvenile system. In one of the few before the Illinois Appellate Court advisor to this Chicago Bar Associa­ instances in my law school career I this fall. To prepare me, Steve Drizin tion program. was treated as a colleague, not a arranged two moot court arguments, student. We drafted motions, with Legal Clinic staff, including I cannot adequately express strategized, and collaborated as a himself, Bruce Boyer, Tom Geraghty, the important impact and influence team. Ultimately, we conducted both Larry Marshall, and Bob Bums that the Legal Clinic and its staff juvenile transfer hearings, with serving as the judicial panel. As a have had on me. Although I have students putting on the majority of result of their comments and sugges­ been out of law school for nearly four the witnesses pursuant to the terms of tions, I argued our client's appeal for years, I still look to Tom and Steve our Rule 711 licenses. No class or almost an hour with knowledge, for mentoring and legal advice when seminar in law school rivalled the preparedness, and confidence. Our handling juvenile matters. Their experience I received in the Legal client was so appreciative of the work commitment and dedication to Clinic. done on his behalf by the Clinic, he helping law students develop both recently called and thanked Steve for legal skills and commitment to public The Clinic's role in my life his help. service has left an indelible mark on continued after law school. As me, which I hope to pass on to others. mentioned above, I worked primarily As a result of the Clinic's on two juvenile transfer hearings impact on my legal education and during my last year in the law school. One of the juveniles was, in fact, •••••••••••••••••••••••••••••••••••••••••• transferred to adult court to face • • he Children's Law Pro Bono Program at the Community murder charges. Based on my • relationship with the juvenile, Tom • TLaw Clinic is thriving in West Town. In 1996, over 30 and Steve asked if my firm, Gardiner • volunteer attorneys from many of Chicago's most prominent Koch & Hines, would like to repre­ • law firms represented children in the Juvenile Court of Cook • County. Working with boys and girls aged 10 to 17, our sent this juvenile at trial. Although • Gardiner Koch & Hines was a newly • volunteers have helped neighborhood families find their way formed firm without large financial • through the juvenile court system and have crafted creative reserves, it recognized the importance • solutions to their legal problems. The program has also reduced • • the isolation of law practice in juvenile court by encouraging of this case and the Legal Clinic to • me and accepted the case on a pro • these highly motivated and talented young lawyers to become • part of a new corps of children's attorneys. Our thanks to the bono basis. Jim Koch and I tried the • case before a jury; the client was • following volunteers and supervisors who made the Children's ~ Law Pro Bono Program a great success in its first year. '"'Sf ultimately sentenced to 25 years in • prison. • • (please see list onfacingpage) ••••••••••••••••••••••••••••••••••••••••••• DNews a1lll Notes 8 Timothy J. Ewald ('93 JD) Doherty Rumble & Butler, P.A. practicing in the areas of labor/employment law and bankruptcy litigation

My best memories from demonstrates its commitment to My Legal Clinic experience Northwestern (or at least those attorney development and social greatly aided my professional memories suitable for print!) relate justice through the Legal Clinic. The development and has proven to be almost exclusively to my experience opportunity to deal with real clients, critical to my success as a practicing as a student in the Legal Clinic from file real motions, and appear before attorney. The fact that I prepared 1991 to 1993. The outstanding real judges is an invaluable and witnesses, tried cases, and crafted mentoring I received from the staff unparalleled teaching tool for appeals long before my admission to attorneys, the fantastic opportunities prospective attorneys. The learning the Bar enabled me to better repre­ for hands-on experience, and the experience is enhanced by the sent the clients I serve in private sense of compassion and responsibil­ incredible dedication and skill of the practice. In addition, because of my ity instilled through the representa­ staff attorneys who supervise the commitment to civic responsibility, a tion of those less fortunate have students. Of equal importance to the number of co-workers and I recently proven invaluable to me in my educational component are the established a formal pro bono continuing development both as an humane considerations involved in program at our law firm. These attorney, and as a human being. this type of service, especially in light professional achievements are in of the recent dismantling of the social large part directly attributable to my With many law schools these safety net and growing hostility experience at the Legal Clinic, and days obsessed over rankings, size of around the nation towards impover­ Northwestern has every right to be libraries, and the production of law ished and powerless people. very proud of this vitally important review articles, Northwestern, institution. although strong in these areas,

•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• PRO BONO SUPERVISORS PRO BONO VOLUNTEERS

Cotsirilos Stephensen Altheimer & Gray Gardner Carton & Kirkland & Ellis Sidley & Ausin Vedder Price Tigue & Streicker Tom Swigert Douglas David Becker Lisa Cipriano Kauffman& Matthew Kennelly Baker & McKenzie Jennifer Breuer Barry Irwin Denise Clark Kamnholtz JohnD. Martin Christine Edwards Latham & Watkins Eric Glover Amy Pope Jenner & Block Lewis Putman, Jr. Karen Hale Richard Williams Brinks Hofer Gilson Ian Fisher Craig Martin Hopkins & Sutter Brad Kotler Linzey Jones Victor J. Cacciatore TomMcQueen &Lione Tamar Kelber Michael Reynolds George Lee Bradford Axel Chunlin Leonhard Gabrielle Sigel Sarah R. Lyke Wilman Harrold Andrew D. Stover Jenner & Block CliffMentrup Monique Washington Maureen Neiberg Karen O'Neill Allen & Dixon Coffield Ungaretti & BrianBilcer Darin Osmond Mayer, Brown & Adam Glazer Mayer, Brown & Harris Brain Cannon Platt Teller Levit & Jeanne Walker Platt KurtZemich Michael Doomweerd Rick Weber Silvertrust Winston & Strawn Michael Gill Gabe Fuentes Cotsirillos, Craig Woods Steven Malitz Bruce Braun Diane Romzukut ReginaldJ. Hill Stephenson, Tighe & Christine L. Schwartz Veronica Young Tress/or Soderstrom Jared Cloud Stricker Maloney & Priess David Doyle Sidley & Austin Aylice Toohey McCullough Terry Campbell Darlene Oliver Ken Fuchs Steven Beyers Steve Wemikoff Campbell & Lane Epstein Zaideman & Patrick Hughes Michael Davis Katten Muchine & Elena De Wolfe Joyce Silz.er Esrig RachelJanutis MajaEaton Zavis & Attorney at Law Cathryn E. Stewart Schiff Hardin Eleni Kouimelis Julie Cromer Sean Goodman Waite BrianNeuffer Winston & Strawn Juliette Duara Carlos Vigil William Weber Kimball Anderson Mark Roder

•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 9 News aTUt Notes D Students working with Bruce Boyer in the Family Geraghty, reflects the Legal Clinic's Advocacy Project continue to represent clients within increasing store of knowledge and the child welfare system, including parents, children, expertise in the area of juvenile law. and foster parents. Through their representation of clients, they seek to address systemic issues in the Bruce has also worked to expand the juvenile court, such as the way in which visitation visibility of the Children and Family between foster children and their parents is structured, Justice Center outside of Illinois. the extent of the court's responsibility to monitor Earlier this year his article on ethical children living with their families, and the process by issues in representing parents in child which the court seeks to achieve permanent resolutions welfare cases was published in 1996 for children and families whose lives are disrupted by in the Fordham Law Review. With abuse and neglect. Child clients have given students the Bernardine Dohm, Bruce was opportunity not only to serve young clients in great recently appointed by the State of need, but also to understand from a new perspective the Michigan to conduct a program ways in which the systemic failures of the child welfare evaluation of pilot projects modeling system deprive children and parents alike of the multidisciplinary representation of opportunity to achieve stability and permanence. children in abuse and neglected cases. These projects, initiated in Bruce has also devoted considerable attention to other 1995, are seeking to demonstrate the types of litigation, including class actions, appeals, and effectiveness of using teams of legal amicus briefs. With the imposition of crippling federal and non-legal professionals to restrictions limiting the reform work of offices sup­ provide comprehensive advocacy for ported by the Legal Services Corporation, Bruce has children who are victims of neglect or sought to help fill this gap by assuming a greater role abuse. In April, Bruce will speak on in class action litigation in the child welfare arena. In the representation of children at trial one case, the Clinic has assumed responsibility from at the annual meeting of the ABA's the Legal Assistance Foundation for monitoring the litigation section. Department of Children and Family Service's compli­ ance with a consent decree involving visitation between Bruce Boyer children in foster care and their parents. Bruce is also responsible for another lawsuit filed this past fall on Angela Coin has been invited to behalf of some 2500 disabled foster children, seeking to speak at two upcoming conferences. protect their federal disability benefits from misuse by Her first talk will be in St. Louis in DCFS. lbis suit arose from work with significant March at the ABA's Pro Bono numbers of foster children who found that disability Conference, where she will describe benefits paid on their behalf to DCFS were being the Children's Law Pro Bono Pro­ misappropriated in violation of state and federal law. gram at the CLC. She has also been Through his appellate and amicus work, Bruce has also asked by the U.S. Information sought to address systemic problems in and out of the Agency of the University of Alaska to juvenile court, affecting the rights of children and the speak in Sakhelin Island, Siberia, scope of the state's involvement in the relationships where she will address community between children and their families. He has also and business leaders on juvenile law, continued to be involved in the work of various delinquency, and public interest committees working on issues around juvenile reform. community law clinics. Several problems have arisen in Siberia as a lbis past fall, Bruce taught a seminar on juvenile law. result of urban development around lbis seminar, taught for the first time last year by Tom oil exploration. DNews amt Notes 10 Northwestern students voted Bob Steven has also participated in recruiting and training Burns the winner of the Robert private attorneys in how to effectively represent juveniles Childres Memorial Award for in delinquency proceedings. In 1994, Steven served as an Teaching Excellence for the 1995-96 assistant team leader in the "Training the Child Advocate academic year. The award was Program," a trial advocacy program developed and presented to him last May at gradua­ sponsored by the CFJC, the American Bar Association, tion. The ABA Section on Legal and the National Institute for Trial Advocacy. Together Education invited him to participate with Angela Coin, Steven has also trained many volunteer in a panel at the group's annual attorneys from some of Chicago's largest law firms in the meeting on integrating practicing CFJC's multidisciplinary model of representation. These lawyers into professional responsibil­ attorneys have then been recruited to represent juveniles ity programs. In September he charged with crimes who live in the neighborhood of the conducted a workshop on the law of Coll1ll1unity Law Clinic, a satellite legal clinic serving evidence for the Illinois Attorney Chicago's West Town coll1ll1unity. General's Continuing Legal Educa­ tion program. In January he was a Steven also remains involved in a number of professional panelist on legal ethics for the organizations and committees dedicated to improving the Chicago Inns of Court workshop. In lot of Illinois' children. He continues to serve on the March he will give an invited paper Juvenile Detention Alternatives Initiative of Cook County, Steven Drizin at a conference to be held at William an initiative funded by the Annie E. Casey Foundation to and Mary Law School on the pur­ reduce the population of the detention center. poses of legal ethics teaching in the Law School. He has remained Steven completed 18 months of work on the State's President of the Board of Directors of Legislative Committee on Juvenile Justice in May 1996. Chicago Legal Aid to Incarcerated His lengthy dissent to the Committee's Report and Mothers. Later this year he will Recoll1ll1endations, which provides a blue print for an publish "Teaching the Basic Ethics effective juvenile justice system for the twenty-first Course Through Simulation" in Law century, has been widely circulated and discussed. In and Contemporary Problems, "Some 1996, Steve was also named to the Policy Board of the Realism (and Idealism) About the Illinois Council on the Prevention of Violence and to the Trial" in the Georgia Law Review, Executive Committee on the Cook County Juvenile Drug "The Purposes of Legal Ethics in the Court Program. Law School" in the William & Mary Law Review, and "Legal Ethics in In October 1996, the CFJC, together with the ABA's Preparation for Law Practice" in a Juvenile Justice Center, was awarded a grant from the symposium published by the Ne­ Illinois Juvenile Justice Coll1ll1ission to study the issues of braska Law Review. A condensed access to counsel and quality of counsel for juveniles in version of this article is included in Cook County, Illinois. Steven and Patti Puritz of the ABA this issue on page 18. are co-principal investigators of this study which will aim to replicate the groundbreaking December 1995 study of the ABA, the Juvenile Law Center, and the Youth Law Steven Drizin is in his sixth year at Center: A Call for Justice: An Assessment ofAccess to the Clinic and is the supervising Counsel and Quality of Representation in Delinquency attorney of the Juvenile Advocacy Proceedings. Project. At the Clinic he supervises students who represent children and adolescents in delinquency proceed­ Laura Miller Eligator works in the Clinic's Disability ings and criminal cases. He also Rights Project (formerly called the "Special Education represents minors in appeals of Project"). As in previous years, students participating in Laura Eligator juvenile and criminal court matters, the project represent children with disabilities to obtain related special education proceedings, appropriate educational services and relief for disability- and is serving as co-counsel in a based discrimination. This year for the first time, federal class action against several students are also representing adults who seek redress for state agencies concerning their discrimination on the basis of disability. The project failure to provide services for handles both individual cases and impact litigation. In disabled delinquent children. the past year, two of the project's students argued cases in 11 News a11il No/£S D the United States Court of Appeals for the Seventh Arthur Freeman, senior counsel at Circuit. Schwartz & Freeman, is now in his fourth year of association with the Laura is in her second term on the board of governors of Clinic. He participates in weekly the Chicago Council of Lawyers and continues her first seminars with Tom Geraghty and the term on the board of the Cook County Legal Assistance Clinic students and this past year has Foundation. She is also an active member of the Special also participated in factual and legal Education Subcommittee of the Attorney General's research and brief writing on behalf Disability Rights Advisory Council. She and Steve Drizin of Clinic clients, primarily in death recently wrote an article to help parents of children with sentence and post-conviction appeals. disabilities understand the juvenile justice system, which was published in the Winter 1997 edition of Attention He has also spent a substantial magazine. amount of time in the preparation of a brief filed in the Illinois Appellate John Elson has continued his project to protect clients Court contesting the circuit court's from overreaching by divorce attorneys. These efforts denial of a prose post-conviction have recently culminated in the passage by the Illinois petition case, in which the Clinic's legislature in its fall veto session of a package of reforms client was sentenced as a Class X that will significantly limit abusive fee practices by offender to 30 years of imprisonment divorce attorneys as well as reduce some of the inequities for an armed robbery which netted suffered by low or non-earning spouses. John worked the defendant fifty cents, plus a book closely with Senator Kathy Parker's committee on divorce John Elson store token. law reform and a committee of the Chicago Bar Associa­ tion to draft and lobby for the passage of this legislation. Art made the oral argument in the In its litigation, this project has won substantial reduc­ Illinois Appellate Court on the tions in fees being sought by divorce attorneys, has been defendant's behalf last December. awarded precedent-setting sanctions against a prominent During the Clinic's investigation, divorce attorney for uncivil conduct at a deposition, and is prior to filing its brief, it was discov­ now awaiting an Illinois appellate court decision that will ered that the defendant had a long clarify the legal standard governing when it is a breach of history of chronic schizophrenia and fiduciary duty for an attorney to pressure a client into had been so diagnosed repeatedly by unwanted sexual relations. the Department of Corrections psychiatrist during a prior incarcera­ John is currently seeking funding for an expanded divorce tion, as well as by a Social Security clients rights project that will employ an attorney who Administration psychiatrist. None of will work with students to develop a multi-faceted this information was presented to the approach to protecting this often exploited class of clients. court during the defendant's trial. He also began a new project last semester in which he and his students represent clients of the Legal Assistance Foundation in cases that require substantial discovery or motion practice. Through this project, students have Tom Geraghty was appointed this gained a great deal of experience in interviewing clients, year by Judge Donald O'Connell to developing litigation strategies, conducting discovery, the Public Guardian Oversight and presenting motions. Committee. His speaking engage­ ments have included a presentation to Derrick Ford has continued his work on the board of the National Association of Counsel directors of the Lawyers' Committee for Better Housing for Children on the representation of and the Ounce of Prevention Foundation, as well as children whom the state seeks to try serving as a volunteer attorney for the Lawyers' Commit­ as adults; a presentation to the tee for Better Housing. He continues his involvement with Derrick Ford American Academy of Psychiatry and the Cook County Bar Association's Law Day program and the Law on the interdisciplinary with coaching the Northwestern University Undergradu­ aspects of representing children ate Mock Trial Team. This year Derrick will continue to whom the state seeks to try as adults; coach a mock trial team at Wells High School with and opening remarks and a presenta­ Angela Coin that will compete in the spring in both tion on teaching trial advocacy at the Chicagoland and statewide high school competitions.

DNews ana Noles 12 Conference on Clinical Legal and Spanish. The Street Law project involves law Education in East Africa, held in students, attorneys, and youth trained as peer educators Addis Ababa, Ethiopia. Tom will also who teach about juvenile law, rights, and responsibilities. be a teaching team leader at the The project reaches young people and adults in a wide National Institute for Trial variety of settings including elementary and high schools, Advocacy's national session in libraries, public housing developments, and community Boulder, Colorado, in July 1997. Tom centers throughout the city. serves on the Law School's strategic planning committee. He is a member She also facilitates the participation of Northwestern- law of the working group on Clinical students in a joint "Street Law" program with Loyola Legal Education in Africa, the Law School conducted at the JTDC. Since its inception American Bar Association African in 1994, law students have provided information on basic Law Inititiative, and of the Advisory legal issues and the juvenile justice system to approxi­ Committee of the MacArthur Justice mately 300 detained youth each semester. Center. Cheryl Graves Cheryl Graves continues to expand Zelda Harris continues to work as a staff attorney in the her advocacy efforts on behalf of Clinic's Children and Family Justice Center. Students youth and youth organizations working with Zelda assist in the provision of legal throughout the city in addition to her representation through the Family Violence Relief Project. casework and supervision of students Zelda's students represent parents involved in child in juvenile delinquency and domestic protection proceedings before the Juvenile Court of Cook violence cases. County and victims of domestic violence in a variety of family court settings including civil domestic violence Cheryl has joined the board of order of protection cases, dissolution of marriage, child directors of the Girls Best Friend custody, and child protection proceedings. Foundation, which is dedicated to funding innovative community-based Zelda participates as a member of the DCFS Advisory programming for girls. She contin­ Council on Domestic Violence, the Domestic Violence ues to coordinate a weekly program, Task Force of the Office of the Cook County State's "Girl Talk," for girls incarcerated at Attorney, and the Illinois Family Violence Coordination the Cook County Juvenile Temporary Council. Zelda has also worked as an instructor and team Detention Center (JTDC), providing leader for the National Institute for Trial Advocacy and as Zelda Harris gender specific programming on a an adjunct faculty member for NU's clinical trial advo­ wide range of issues. Cheryl began cacy course. the project in 1993 in collaboration with several organizations including Bill Kell has practiced law on behalf of troubled families Youth Visions, Chicago Women's since 1987 in government, legal service, private practice, Health Center and Women in the and law school clinical settings. He joined the Legal Director's Chair. Cheryl will also be Clinic last fall after founding the Child Advocacy Clinic working with David Reed and at Indiana University School of Law in Bloomington, Monica Mahan on a research grant to where he also taught a course on children and the law. examine issues of gender bias in the Bill's areas of specialization include custody, adoption, juvenile justice system in Illinois. mental health, and welfare-to-work related benefits.

Cheryl has expanded the law-related This year Bill is supervising students in the new CFJC education program known as "Street initiative, The Upstream Project. The Upstream Project Law", developed a high school seeks to advocate for families struggling to attain or "Street Law" curriculum, and teaches maintain self-sufficiency before family economic crises a weekly seminar at Latino Youth can lead to child abuse or delinquency and ensure that High School. She involved attorneys welfare reform efforts are continually guided by both the and law students in the first city-wide short-and long-term needs of children. For more infor­ Bill Kell Street Law Teach-in, which included mation about Upstream, contact Bill at (773) 342-5211. students, youth advocates, educators, and lawyers in legal education sessions conducted in both English 13 News atul Noter D Steven Lubet claims that he has spent an uneventful year Monica is currently supervising seven quietly attempting to avoid attention. Despite his efforts, M.S.W. students from Loyola School however, news of Steve's escapades nonetheless manages of Social Work, two of whom are in to slip out now and then. For example, we have it on the combined J.D./M.S. W. program. good authority that the Northwestern University Law These M.S.W. students work on Review will soon publish a symposium devoted to Steve's behalf of the Clinic's clients with (allegedly humorous) article "Into Evidence." Readers Clinic faculty and law students. with too much time on their hands may have perused Steve's original article, which argues that exhibits are Larry Marshall and his properly admitted "into" evidence, rather than "in" students are contuing their work in evidence. In the symposium, four authors (reputedly all the area of criminal defense. This law professors) examine Steve's thesis from the perspec­ past summer all charges were tives of Feminism, Law & Economics, Classics, and dropped against Gary Gauger, a Wigmorean Theory. Steve's reply is that "the critiques McHenry County farmer who had are all incomprehensible - but of course I mean that in once been sentenced to death for a the good sense." Steve has also written another book and murder he did not commit. All published a handful of law review articles. charges were also dropped against another client, Willie Rainge, a Steve's humorous commentaries continue to run on member of the group now known as National Public Radio, as well as in The Chicago Tribune, the Ford Heights Four. Willie had The National Law Journal, The San Francisco Chronicle, been twice convicted of murder and and the Philadelphia Inquirer. The targets of his satire sentenced to life imprisonment, but have included Southern manners, Chicago politics, and massive new evidence of his inno­ Wisconsin deer hunting. Appropriately indignant hate cence led to the State's dropping mail may be seen on the door to his office. charges and to a formal apology from the Cook County State's Attorney.

Monica Mahan continues to be active on the Steering During 1996, Larry received Committee for Female Juvenile Offenders which looks at a series of awards in recognition of the special problems facing girls in the juvenile justice the work he has done in the Legal system. Funded by the Office of Juvenile Justice and Clinic. In August, Larry and the Monica Mahan Delinquency Prevention, this project has brought together three other members of the Rolando the court, DCFS, the detention center, probation, county Cruz Defense Team received the officials, and community based agencies who are con­ American Bar Association's Pro cerned about gender specific programs for girls. Bono Award in Orlando, Florida. In November, Larry was given the Monica also completed four Child Watch programs, Edwin A. Rothschild award by the which brought over 80 clergy, corporate leaders, elected Illinois Chapter of the American officials, foundation staff, and the media into the Juvenile Civil Liberties Union. Additional Court. Participants were shown the workings of the Court recognition came through awards and the conditions facing young girls in the detention from the Mexican-American Legal center. Defense Fund and the Public Interest Law Internsip program. Larry's During the summer, Monica hosted five social workers work was also profiled in a Chicago from Korea who were visiting as part of an international Tribune feature story titled "Practic­ exchange program with Loyola University School of ing What He Teaches." Social Work; the social workers toured juvenile court and visited Mercy Home for Boys and Girls to gain informa­ tion about the differences in the court systems and the child welfare systems. In Korea, juveniles are tried in adult courts, and child welfare issues are handled by (concluded onp.15) social services agencies or the family. Seventeen profes­ sors of social work from the University of Seoul plan to visit this winter.

DNewr amt Notes 14 Peggy Slater has completed the first year of her The project has taken on a comprehensive appointment as director of the Permanency Project, Child education program on court procedure geared to a variety Protection Division of the Circuit Court. The goal of the of audiences. It produced and piloted a parent education project is to identify and aid the court in implementing program which will be continued on a permanent basis by effective and efficient procedures to assure that each child the Office of the Public Defender. A manual for children before the court achieves his or her appropriate permanent is ready for publication, and manuals for caseworkers and placement in the shortest time possible. foster parents are underway. A resource manual on termination of parental rights for judges has been com­ The project has introduced an expedited adoption pleted, and a similar manual is ready for distribution to procedure for uncontested cases and has been active in the the legal community. design and promotion of new legislation which provides for the right of parents of wards of the court to consent to The project has been the organizational arm of their adoption by specific individuals rather than surren­ the Child Protection Advisory Work Group created by der them to the state. The project brought the Federal presiding Judge Nancy Sidote Salyers and of the group's Locator Service for missing parents to juvenile court and many subcommittees which advise the court of problem supports a simultaneous procedure of freeing a child for areas and recommended solutions. The project promoted adoption and identifying the adoptive placement. the designation of the Child Protection Division of the Juvenile Court of Cook County as a model court in the The project has piloted an early mediation National Council of Juvenile and Family Court Judges process and is designing a consensual planning process as Model Court Program and is working with both that an alternative to termination of parental rights. organization and the State Court Improvement Project toward improvement.

spend their time at their host schools UPDATE: Uganda, and by American law teachers who had been working over in the United States developing new ADDIS ABABA UNIVERSITY courses for their schools with the SCHOOL OF LAW the summer in those countries. support of American law faculty. In June the African and American law As reported in the last edition of this These visits to Ethiopia will hope­ professors, who have worked on this newsletter, Cynthia Bowman and fully bear fruit. The first priority is project, will meet for a final confer­ Tom Geraghty traveled to Ethiopia in the creation of clinical teaching ence at Northwestern. In the Fall of the fall of 1995 to assist the Addis methodologies which are appropriate 1997, six American law professors Ababa University School of Law and for the Ethiopian experience. We also will spend two months in Africa the Ethiopian Civil Service College hope to raise funds which would developing clinical components for to create a clinical curriculum and support exchanges between our doctrinal courses. Hopefully, a clinical programs. Last summer, Tom faculty and students and those of the Northwestern faculty member will be Geraghty returned to Ethiopia to Addis Ababa University School of included in this group. further develop the schools' clinical Law. These exchanges would provide curriculum. Tom, accompanied by his faculty and students of both countries wife, Diane Geraghty ('72) (and by with opportunities to broaden their Finally, Northwestern's Law Library daughter Annie), and by Professor educational, legal, and social experi­ Director, Chris Simoni, will visit the Louise Mckinney of the Case Western ences and to conduct research Addis Ababa University School of Reserve School of Law, created a projects of use to the development of Law in June. Chris will spend three clinical course for the faculty of the Ethiopian laws and legal institutions. weeks in Ethiopia helping the law Addis Ababa University School of school to modernize its law library. Chris will also help the Ethiopian Law, so that Ethiopian law teachers Word has just reached us, that the law librarians effectively to utilize a could experience first hand what it United States Information Service new computer system provided by the was like to be a student in a simula­ will likely fund a new phase of United States Information Service. tion-based lawyering process course. cooperation between African and American Law Schools. This Tom and Professor Mckinney also program will support the two month participated in a conference on visits of six African law professors to ••• clinical education in East Africa, the United States in the spring of • held in Addis Ababa, attended by law I 997. The African law teachers will teachers from Kenya, Tanzania, 15 News and Notes D WHAT DO WE OWE PEOPLE WHO HAVE BEEN WRONGLY CONVICTED?

By Lawrence C. Marshall

Lawrence C. Marshall is a professor of law at Northwestern University School of Law. He has repre­ sented a number of wrongly convicted individuals, including Willie Rainge and Rolando Cruz.

n May 13, 1978, before Words of apology are not It may take years to fully Ronald Reagan had even enough, though, as O'Malley discern the lessons that can be Oannounced his candidacy for recognized. These men need educa­ gleaned from these wrongful convic­ the White House and before Michael tion, job training and help with the tions, but certain lessons are already Jordan had ever played a college formidable transition that lies ahead. clear. One such lesson-which every basketball game, a 20-year-old man Whatever compensation these men prosecutor and every potential juror named Willie Rainge left his East ultimately may receive from the must take to heart-is that we must Chicago Heights home to go to work. government will not take the place of stop prosecuting and convicting He would not return home for more real jobs that will allow them to defendants based on uncorroborated than 18 years. During that period, he establish real lives in the free world. testimony from informants who have would be tried and convicted twice, Quite apart from the government's clear incentives to lie. and sentenced to spend his life in obligations to these men, we as a prison, for a crime which he always community (in whose name these knew, and we all now know, he did men were incarcerated) have an The star prosecution witness not commit. obligation to do everything in our in Willie Rainge's first trial in 1978 power to welcome them back, to was a jailhouse informant who employ them and to make them part testified that he overheard a jailhouse What do we owe people like of our community. conversation between Willie and a Willie Rainge and other members of co-defendant, in which they admitted the Ford Heights Four whom we to having committed these crimes. wrongly convict? How can we begin Although these steps are all Predictably, the witness denied that to redress the grievous wrongs that necessary, they are not sufficient to he was testifying in return for any have been done to these individuals, pay our debt to these men and to the sort of deal. Years later, though, the whose lives have been ravaged by the other wrongly convicted people witness admitted that he never heard fallibilities of our criminal justice whose lives we have shattered. Willie or anyone else confess to these system. Rather, our most important obligation crimes, but that he had testified is to learn from our mistakes and to because the prosecutors were willing take action to prevent these miscar­ to spare him and his brother a We can begin, of course, by riages of justice from occurring in the lengthy prison sentence in return for apologizing. In the case of the Ford first place. Apologies are empty his testimony. Heights Four, Cook County State's words when they are not accompa­ Atty. Jack O'Malley has done just nied by a resolve to avoid committing that. By calling the imprisonment of the same errors over and over again. By the time ofRainge's these four men (two of whom where 1987 trial, the jailhouse snitch was sentenced to die) a "glaring example" long gone (he had cashed in on his of the legal system's fallibility, Ifwe are seriously remorse­ deal already), but another individual, O'Malley has distinguished himself ful about what we have done to the Paula Gray, was now willing to testify from some other local prosecutors Ford Heights Four, then let us reflect that she witnessed the crimes and who have stubbornly refused to on how and why these men were saw each of the Ford Heights Four acknowledge other defendants' charged and convicted. Perhaps, as a participate in the rapes and murders. claims of innocence, no matter how result of this horror, we can minimize Gray had flip-flopped several times compelling the proof the risk of having to wring our hands on her story and was testifying in in the year 2014 about some awful return for a deal that would allow her injustice that we committed when we to walk away from the murder convicted an innocent defendant in charges that were pending against 1996.

(concluded onp. 17) DNews ana Notes 16 her. But she denied this deal in front Notwithstanding these A society that is committed of the jury, and the jurors apparently revelations about snitches, they to the ideal of preventing wrongful abandoned their common sense and continue to be presented in courts, convictions must insist on real believed her denial because they and are a recurring element in proof- at least as reliable as the kind convicted the Ford Heights Four wrongful conviction cases throughout of information that we would rely based on her testimony. the country. In Rolando Cruz's '1990 upon in making serious decisions that trial, the prosecutors went so far as to affect our own lives. We owe this to our Constitution, and we owe this to It is time to stop using rely upon a death row inmate who testified that he had once heard Cruz the Ford Heights Four. jailhouse snitches and others who are trying to secure favor with the admit to killing Jeanine Nicarico. prosecutors through their testimony. Although the State of Illinois had How can we ask a jury to convict a taken the position that this snitch had defendant based on the words of a lied about his own case and was ••• deserving of execution, the state was person so untrustworthy that none of • willing to ask a jury to execute Cruz us would trust them with a dollar, based on this man's say so. much less a loved one's life. One famous jailhouse snitch, Leslie White, who snitched in scores of If a prosecutor cannot prove California cases, described how he guilt beyond a reasonable doubt would read newspapers and court without the use of dubious jailhouse records to find out information about snitch testimony, then the prosecutor the case, and would then tell prosecu­ should not be prosecuting the case. tors that the defendant had confessed And jurors should recognize that if a to him. As Judge Stephen Trott has prosecutor's case is so weak that the written, "criminals are likely to say prosecutor is forced to rely upon this and do almost anything to get what sort of junk evidence, then the they want especially when what they prosecutor has not carried his burden want is to get out of trouble with the of proof. If prosecutors are unwilling law." to stop presenting these kinds of witnesses, then jurors must send a Larry Marshall message that they will not credit this sort of"proof."

1997 Cttntcat Program ana Cllttaren ana Famtty _Justtce Center Faculty ana Staff

Julie Biehl Researcher Derrick Ford Faculty Monica Mahan Social Worker Cynthia Bowman Faculty Anne Fogarty Secretary Eric Malone Public Ally Bruce Boyer Faculty Arthur Freeman Attorney Larry Marshall Faculty Robert Burns Faculty Thomas Geraghty Faculty Laura Miller Faculty Marion Cagney Secretary Cheryl Graves Faculty David Reed Researcher Angela Coin Faculty Belinda Harris Secretary Barbara Reinish Clinic Manager Sara Cortez Secretary Zelda Harris Faculty Angie Solorio Receptionist Toni Curtis CFJCAdmin. Eric Holmberg Docket Clerk Peggy Slater Perm.Planning Bernardine Dohrn CFJC Director Bill Kell Faculty Paulette Van Zant Secretary Steven Drizin Faculty Barbara Kahn Researcher Jacinta Wong CLC Admin. John Elson Faculty Steven Lubet Faculty

17 News atut Notes D Legal Ethics in Preparation for Law Practice by Robert P Burns

n 1992, the American Bar Competent client counselling raises Association Section of Legal explicit rule-centered issues sur­ IEducation and Admission to the rounding control over the representa­ Bar issued what has come to be tion, as well as much deeper ques­ known as the "McCrate Report," or, tions concerning paternalism and more formally, "Legal Education and what the Report called "the extent to Professional Development-An which it is proper for a lawyer, in Educational Continuum." The counseling a client to take account of Robert Burns Report is at the center of an impor­ considerations of justice, fairness or tant discussion of the role of the Law morality by ... attempting to persuade School in preparing students for the the client to modify his or her practice of law. It attempts to specify decisions or actions to accommodate the "Skills and Values" that every law the interests of justice, fairness, or student should attempt to master as a morality[.]" condition of becoming a competent Furthermore, a reading of lawyer. In my article, I argued that a the Report shows that many of the close reading of the Report under­ "skills" require of the lawyer what scores the many ways in which can only be called moral dispositions. lawyering skills and legal ethics are To choose only a few examples, intimately intertwined. clarity about the limits of the lawyer's The following For example, the Report's own competence and the need to "skill" of developing an appropriate enlist help requires humility. Chal­ is a summary of plan of action is structured by the lenging a client's version of events or "Legal Ethics ethical rules on the distribution of stated goals requires courtesy and authority between lawyer and client. tact. Generating a broad range of in Preparation The skills surrounding delegation are solutions, including those that may controlled by rules ensuring adequate require a lower level employment of for Law Practice" safeguards against unethical behavior the lawyer's services, requires contributed by subordinates. Many of the integrity and imagination. Trying advocacy skills at the trial and cases requires patience, diligence, by Professor Burns appellate levels are surrounded by and sometimes courage. different sorts of duties of candor and to a recent symposium So even before a reader fairness. Negotiation by lawyers is reaches the "Values" section of the limited by sometimes conflicting on the Report, he or she cannot help but duties of truthfulness and zealous­ notice the ways in which lawyering Macerate Report ness, whose sources spring not only skills are shot through with ethical from the Law of Professional Respon­ for the elements and limits. In fact, I argue sibility, but also from the law of in the article that only a lawyer who contract and fraud. Discovery skills Nebraska Law Review. practices ethically, whose "skills" are are limited by rules controlling more than value-free technical communications with represented proficiencies, is likely to appreciate and unrepresented persons, some of the "Values" of law practice. From which, especially in the corporate the skills side, it is hard to argue that context, can be far from obvious. a lawyer may competently practice Tactically attractive delay unless he or she does so in light of raises serious ethical problems. the ethical obligations that both (concluded at the top ofp. 19) DNews aTUI Notes 18 Legal Ethics in Preparation for Law Practice constitute the skills themselves and, ethical requirements simply will I devoted the better part of to the extent that the skills are purely not be understood unless they are the rest of the article to a description technical, control or limit the "dyed in the wool" of the young of our Program. The heart of the exercise of those skills. From the lawyer's actual lawyering prac­ program consists in a series of narrowest perspective, unethical tices. I argue that an effective way exercises in which students must practice continually places the of teaching legal ethics is through perform basic lawyering tasks that lawyer's reputation, livelihood, and a program that closely integrates raise important ethical issues. The sometimes freedom in jeopardy. the learning of ethics with the exercises require the kind of synthetic More broadly, unethical practice is learning of the basic lawyering grasp of doctrine, tactics, and theory usually, though not always, ineffec­ skills identified in the Macerate that is distinctive to a "reflective tual practice. It is the nature of a Report and that such an integra­ practitioner." They put students in decent culture and society to create tion is the best way of learning competitive situations so that they the background practices and certain fundamental aspects of may experience the pressure to gain institutions which, as far as humanly legal ethics. My argument relies an unjustified advantage that the possible, make unethical behavior on philosophical and educational adversary context can make attrac­ self-defeating even without resort to principles and from our experience tive. The participation of clinical disciplinary mechanisms. Thus, one of teaching such a program at teachers and respected practitioners cannot be really "skilled" unless one Northwestern, an experience that assures that students can see how to is also ethical. has proven successful from many practice ethically. And the dramatic Usually then, practice points of view. The integration of :framework within which the issues cannot be effective unless it is at least teaching lawyering skills and arise assures that issues concerning in some senses ethical. I argue in the professional responsibility makes "the ethics of legal ethics" are always such patent good sense that law apparent. Perhaps paradoxically, it is article that effective skills teaching must pay very careful attention to the teachers will in twenty years shake the contextual grasp of legal ethics as ethical dimensions of lawyering, or their heads and wonder how the closely intertwined with lawyering risk creating ''unskilled" lawyers. subjects could ever have been "skills" that makes serious criticism But the reverse is true as well, and I taught in isolation from one of prevailing norms possible. another. devote some pages arguing that ••••

Professor Jon Waltz has long been a friend of the clinical program. He was active in developing the Law School's moot court and trial advocacy courses. Professor Waltz retired this year. The following are remarks that Bob Burns gave at Professor Waltz's retirement dinner in January 1997.

I've been assigned the ridiculous job of trying to Further, that count greatly understates his output say something fair in a few minutes about Jon Waltz's since several of his books have gone through multiple writing and doing so in the after-dinner mode. editions. His evidence casebook has gone through 8 editions and has been for many years the most widely The most obvious thing is to note the sheer used evidence text in the United States. (It is such an vastness of his output: institution that changes in his Teachers Manual have My best count is twelve books; 30 or so scholarly been dissected in scholarly discussions of evidence law in articles; an uncountable number of book reviews and major law reviews.) articles in periodicals of general circulation, including Several of his articles can only be called classics The Nation, The Saturday Review, The Washington Post, and are still the starting-points for scholarly treatments of and The New York Times. the subjects: his articles in evidence law on hearsay and But in light of his continuing productivity, I have the forms of discretion under the Federal Rules of no confidence that I have it close to right. (It's really Evidence and his works in health care law on informed more adventurousness than productivity: His most recent consent and genetic counselling. publication is a comparative study of the criminal justice But the sheer number and even the importance systems in the United States and the People's Republic of of his writing doesn't really do justice to Jon Waltz as China, co-authored with a Chinese law professor.) (please turn the page)

19 News a1llt Notes D author. (Jon has always been ironically modest on the Bing Crosby the best base-baritone of their era in any subject of his own works: to the end of a command genre, popular or classical. performance summary of recent scholarly achievements He could be wonderfully playful in his writing. Jonadded that one of his eggplants had won first prize at There was the ongoing argument between him and John the Ottawa, Michigan County Fair.) Kaplan on the right advice to be given to trial lawyers on Waltz as author has been a kind of figure, the what to say when you couldn't remember the doctrinally disappearance of which on the American scene has been correct objection. Kaplan favored: "Object Your Honor, much lamented. He has been public intellectual in a that's not fair!" Waltz preferred: "Objection Your public profession. That kind of figure is animated by a Honor.... he can't do that....And he knows it!" Jon had the faith that deep learning and flexible intelligence, when better part of the argument I think. joined with the ability to write "short declarative sen­ He wrote the following words in a searching tences, in plain English, with a period at the end" (as he review essay on reforming the Supreme Court appoint­ once put it), really can illuminate, and sometimes influ­ ments process after the Clarence Thomas hearings: ence, important issues of the day. "The Thomas hearings constituted high drama. He has always addressed multiple It is no exaggeration to say that it reached an almost audiences. His evidence scholarship has actually influ­ Shakespearean level. (And Republican Senator Alan enced the direction of court opinions. (Indeed the Simpson of Wyoming got the choice role as Shakespeare's Supreme Judicial Court of Massachusetts once relied on fool.)" remarks that John made at an alumni-faculty luncheon, reprinted the Northwestern Record!) Whatever else you think of Alan Dershowitz, you can't say that he is inclined to give away flowers. This is He has been a strong public advocate of merit what he says about Waltz and Kaplan's The Trial ofJack selection of judges and has written of the importance of Ruby: civil liberties. "This book by legal scholars John Kaplan and The real-world sense of context which he gained Jon Waltz is one of the best accounts of an American trial as a trial lawyer and while serving on the Illinois Judicial ever written. It is virtually a full-semester course in Inquiry Board suffuse even his technical scholarly work. substantive criminal law, the insanity defense, criminal He once explained that the Northwestern faculty was often procedure, and evidence. Every tactic by the prosecution involved in the legal world "partly of the desire to be of or defense is placed in the broader context of our legal public service, partly because many of us believe that to system and its underlying values." That is something that teach it, you ought to be able to do it." only Jon Waltz could have done. He insisted that the following be included in the I read the book while Jon was recovering a preface to the Chinese edition of his Criminal Evidence couple summers ago and wrote to him that it was the best text: book about any trial that I had ever read. Jon typed a "It is my hope that the human rights protections short reply. He apologized in his courtly way for his described in this book will commend themselves to the imperfect typing, but wrote that he was forced to agree authorities administering the criminal justice system in with my assessment. I could see the smile and the wink the People's Republic of China." over the cigar. And I can't help wondering whether his often As was so often the case, in so many different cited description of Justice Blackmun in The New York forums, Jon put it best himself. When the Minnesota Law Times Magazine as a "white Anglo-Saxon Republican Review asked Jon for a tribute to his good friend, the Rotarian Harvard man from the suburbs" may have great teacher Irving Younger, Jon wrote: provided the Justice with some of his motive to embark on "Younger was interesting. There are lots of an evolution that would prove that even that kind of lawyers and many law teachers about whom the same background can be transcended. cannot be said." He never viewed the law school as a kind of salon where only academics would talk to each others in smaller and smaller circles of interest. Jon Waltz has always been and is interesting. He has always practiced, taught and written in the He knew that writing for law students or the practicing bar or a general audience could be of the grand manner. highest quality. After all, he may have just barely remembered that Fred Astaire was the best dancer and

0 News anlt Notes 20 JUSTICE FOR CHILDREN: The ~f.EASTWISE OF THE LAND,, CHILDREN AND FAMILY JUSTICE CENTER FOURTH YEAR REPORT by Bernardine Dohrn, Director

The Children and Family Justice duced a series of court improve­ Center occupies a unique place ment recommendations in areas among clinical law programs and including diversion, fact pleading, child advocacy projects. temporary custody hearings, and best interest guidelines, all involv­ he Center is a holistic ing Center staff. Similar projects children's law center. We involvingjuvenile justice practice Tprovide legal representation and the juvenile detention initia­ for a whole spectrum of children's tive, funded by the Annie E. Casey needs-health and disability, safety Foundation, are producing policy, ( domestic violence, child neglect, research, and follow-up mecha­ abuse), education and schooling, nisms. This practice by a univer­ adoption, custody, delinquency, sity-based legal clinic with an mental health, criminal trials, and urban court system draws on the constitutional rights. The Center resources of a metropolitan bridges legal systems, agencies, university in matters ranging from Bernardine Dohrn and categories which classify and the developments of an integrated label children into what one management information system commentator called "bad" ( delin­ for the court, to community-based quency), "sad" (child welfare), pilot projects for first-time, non­ "mad" (mentally ill), or "can't violent,juvenile offenders, from add" (special education) boxes. the redesign of the court clinical As the Children and Family We approach children in crisis and assessments and mental health Justice Center enters its attempt to meet their needs. services to the evaluation oflegal fifth year, it continues to representation for children, youth, strive for a multi-disciplin­ he Center is deeply and families. A remarkable ary approach to justice for engaged with a major children, for excellence in congruence ofleadership at the legal representation, and for Turban court in its efforts Juvenile Court of Cook County is a persistent and strategic to transform itself into an out­ now committed to far-reaching approach toward change standing and vital community court improvement and a broad and improvement in resource. Our active involvement working consensus among the children's law. The Center with the Juvenile Court of Cook many entities ofthe court about has become a catalyst for County, the first juvenile court in what is necessary to transform helping to develop consen­ the world, includes two major practice. The Center's collabora­ sus among professional research projects located at the tive work with the juvenile court and community organiza­ court and a myriad of policy, leadership presents the challenge of tions that the Juvenile Court practice guidelines, court rules, of Cook County must be working in a new spirit of coopera­ transformed from a crisis­ legal and judicial training, and tion and shared projects while ridden, mediocre court to a legislative initiatives. The Child remaining constructively critical state-of-the-art children's Protection Advisory Committee, and independent. justice system. organized by Presiding Judge Nancy Sidote Salyers, has pro- (please turn to p. 22)

21 News ana Notes D ight clinical attorneys directly supervise Working with the Public Defender of Cook law students and social work students in County and a Legal Clinic alumnus, Gabriel Fuentes, Elegal representation of poor children, who now works at the law firm of Jenner & Block, youth, and families. Ibis pedagogy-the daily Steven Drizin and several students successfully litigation of real cases involving children and families challenged the State's interpretation of a new transfer in a variety oflegal settings-results in both excellent law. In two separate opinions, the Illinois Appellate representation for clients and careful litigation Court rejected the State's position, holding that the supervision for students. It further provides us with State must make an independent showing of probable on-the-ground knowledge ofjuvenile court cause into evidence at the transfer hearing. In re R._L., practice, which leads to meaningful recommendations 668 N.E.2d 70 (1st Dist. 1996). The second opinion for improvement in policy and practice and enhanced focused on the importance of providing juveniles with credibility in extending the dialogue for reform. effective assistance of counsel and noted that allowing the State to use the earlier transcript would deny Cases include appeals, amicus briefs, and juveniles this fundamental right. In re J.E., 668 class action litigation. Last summer, for example, N.E.2d 1052 (1st Dist. 1996). Center attorney Bruce Boyer filed a class action suit challenging DCFS management ofthe finances of The original complaint in David B. v. disabled children in foster care. The cumulative effect Pavkovic (No. 79-C-1662) was filed by Patrick T. of a range of practices, the suit alleges, is that many Murphy in federal district court in 1979 to address the of the disability benefits intended by the Social failure of DCFS, DMHDD, and ISBE to provide Security Administration to be used specifically for the essential services to "actual or potential wards of the benefit of the recipient children are diverted by DCFS wards of the Juvenile Court of Cook County" who to support its administration. The named plaintiff in had physical, emotional, or mental disabilities. None this class action is now a 20-year-old, disabled, young of the appropriate state agencies assumed responsibil­ man, who received nearly $40,000 from SSA, all of ity for these children with multiple needs. Rather, which has been spent by DCFS, much of it for DCFS argued that they were DMHDD's problem, reasons unrelated to the client's needs. The young DMHDD argued that they were ISBE's problem, and man has also had his benefits terminated due to ISBE argued that DCFS should service these youth. financial mismanagement by DCFS. Lacking assets, Despite the consensus that these children desperately job skills, and an alternative source of income, he now needed services, the agencies bickered over whose faces an uncertain future when he is discharged from responsibility it was to pay for the necessary services. the child welfare system on his twenty-first birthday. As a result of this finger pointing and turf battling, the children "fell through the cracks" and often remained In another case with far-reaching implications unserved by any of the three agencies. regarding the relationship between the judicial and executive branches (In re Lawrence M ), Bruce Boyer In 1981, a consent decree was entered which authored a brief amicus curiae filed in the Illinois required DCFS, DMHDD, and ISBE to provide Supreme Court, successfully urging the court to guard necessary services to the children in the plaintiff class. the authority of the judicial branch to take steps to The Governor's Youth Service Initiative ("GYSI"), a protect abused and neglected children against the program administered by DCFS, was the mechanism malfeasance of the state agency. We also joined with by which services were provided to these children. a consortium of advocacy groups raising questions The "no decline" policy also ensured that the best about proposed substantial revisions to the consent interests of the children would not be subjugated to decree resolving the comprehensive lawsuit against the squabbling among individual agencies about DCFS brought by the ACLU in 1988 (B.H v. funding. McDonald). The federaljudge agreed with most challenges, refusing to approve the revisions which Between 1981 and July 199 5, hundreds of plaintiffs challengers argued would substantially increase the were provided specialized services by the GYSI. In obstacles faced by lawyers seeking to press for July 1995, at DCFS's behest, the Illinois General systemic reform in the courts. Assembly passed P.A. 89-21 which prevented Cook

DNews ana Notes 22 County Juvenile Court judges from committing nder the leadership of Director Angela delinquent youth over the age of 12 to the custody of Coin and William Kell, the Center has DCFS. Relying on this legislation, in July 1996, Ufirmly established its Community Law DCFS began to ignore the consent decree and refused Clinic ("CLC") at the Northwestern University to provide specialized services-including, but not Settlement in Chicago's West Town neighborhood limited to child welfare, mental health, and educa­ to provide a neighborhood base and local remedies tional services-to children in the plaintiff class. In for children's law. In its first year, the CLC has far the winter of 1995, DCFS moved to vacate the exceeded the Center's expectations by creating a Pro consent decree in federal court. Bono Children's Law Program which has trained over 80 volunteer attorneys from more than 15 major law At the request of Patrick T. Murphy, the firms in delinquency litigation. Fifty volunteers have Children and Family Justice Center joined the Office already taken their first case in juvenile court, sup­ of the Public Guardian to fight the DCFS motion to ported by the CLC director, community liaison vacate the consent decree. Center attorneys have Jacinta Wong, and social work interns supervised by represented individual youth in their GYSI staffings to Monica Mahan. Much of the success of the program ensure that they receive the services that they need. is due to the cooperation and assistance of the Honor­ Center attorneys coauthored the briefs with the OPG's able William Hibbler, Presiding Judge of the Juvenile office in the federal case. This September, United Justice Division of the Juvenile Court, the public States Federal District Court Judge Marvin E. Aspen defender, the juvenile probation department, and the issued an opinion in which he denied DCFS 's motion court staff. This involvement of the private bar with to vacate the GYSI decree. Judge Aspen rejected juvenile justice clients is anticipated to have signifi­ DCFS's argument, holding that "it is [not] apparent cant consequences for clients, for upgrading juvenile that the federal claims raised by the plaintiffs in their court practice, and for the broader policy concerns complaint are insubstantial." Accordingly, he held involving children in trouble with the law. The CLC is that there are "no grounds for relieving DCFS from also providing legal assistance to over 200 families on the obligations it voluntarily undertook in 1981." such issues as uncontested guardianships, name DCFS is expected to appeal this decision to the changes, divorce modifications, and civil orders of Seventh Circuit Court of Appeals. protection.

he Center is developing a national reputa­ n 1994 the Center, in conjunction with Loyola tion for critical analysis and knowledge University School of Law, initiated a law-related Tabout children's law and policy, issues Ieducation program for young people incarcerated associated with the administration ofjuvenile at the Cook County Juvenile Temporary Detention courts, and the training oflawyers who provide Center. This program, called "Street Law," brought legal representation for children, youth, and together volunteer attorneys and law students to teach families. The national work of Center attorneys, young people at the detention center about their rights social workers, researchers, and staff has been crucial and responsibilities within the juvenile and criminal to dissolving the isolation of the Cook County Juve­ justice systems. The goal of this program is to reduce nile Court and drawing in national leaders, experi­ recidivism rates by providing youth with information ence, and initiatives. Center activity with the ABA that will allow them to make informed decisions about Standing Committee on the Unmet Legal Needs of their actions in the future. Children, the ABA Task Force on Children, the ABA Center for Children and the Law, and the ABA The Street Law program at the detention Juvenile Justice Committee has contributed to the center is so successful that we were encouraged to development of a national network of child advocates, extend the program into the community and develop a lawyers, judges, and legal scholars who analyze peer education component. The goal of the commu­ policy, compare practice, and share technical re­ nity-based program is to reach young people before sources. Other national organizations include the they get into trouble. The idea 1s to involve young National Association of Counsel for Children and the people as teachers, knowing that youth are more National Council of Juvenile and Family Court receptive to information from peers.

Judges. (please turn to p.24) 23 News amt Noles D During the summer of 1995, the CFJC piloted court, has far-reaching implications for presenting the first Street Law Peer Education Project. The clear, specific information to court decision makers project provided legal education on criminal and and draws upon the skills and resources of psycholo­ juvenile justice topics; developed curricula for specific gists, psychiatrists, social workers, and community populations of youth; provided training for youth, law strengths in appropriate ways. students, and attorneys so the information could be effectively communicated; and also provided a forum Access and Quality of Counsel for Juveniles in for youth from various communities to work on Cook County. The Center, in collaboration with the juvenile justice issues. ABA Juvenile Justice Center, received funding from the Illinois Juvenile Justice Commission to study From October 1995 through 1996, the peer access to and the quality of representation for juve­ educators were paired with Northwestern law students niles in Cook County. This research applies the and volunteer attorneys, and together they conducted national data revealed in A Call for Justice: An Street Law workshops in elementary and high Assessment ofAccess to Counsel and Quality of schools, community colleges, youth centers, and even Representation in Juvenile Proceedings, released by on basketball courts-reaching more than 500 youth. the ABA Juvenile Justice Center and the Youth Law In addition, the peer educators helped to refine the Center in December 1995. The research will explore curriculum to ensure that the information would be the timeliness of representation, the quality of repre­ articulated in an interesting and effective manner. sentation, and the barriers presented by caseload size. They also produced a flyer, "Know Your Rights," that Steven Drizin and David Reed are the Center's team is being widely distributed to youth throughout the in this project. city. The Street Law Peer Education project is now focused on recruiting and training young people­ Gender Differentials in Illinois Juvenile Justice. In including bilingual youth from other Chicago commu­ collaboration with the University of Illinois, Jane nities-to be peer educators. Addams School of Social Work, the Center received a one-year grant from the Illinois Juvenile Justice he Center's research capacity has dramati­ Commission to identify differences in treatment cally increased, permitting us to analyze between boys and girls within the Illinois juvenile Tcurrent practice with children in the courts, justice system. This is part of a national group of implement the redesign of improved systems, and priorities of the National Institute of Justice. No evaluate the outcomes. The Center has undertaken comparable study has been conducted before in six major research projects in substantive areas: Illinois. We will collect and review information from three counties: a Chicago collar county; a partially The Clinical Evaluation and Services Initiative. rural but substantially urban county; and a rural The Center and the University of Chicago Department county from Southern Illinois. David Reed, Monica of Psychiatry received a grant of $1.1 million over Mahan, and Cheryl Graves are carrying out the work three years from the John D. and Catherine T. for the Center. MacArthur Foundation to lead a redesign of the clinical assessment and mental health services at The Permanency Planning Project. The circuit juvenile court, including the juvenile court's Depart­ court recognized the knowledge and talents of Center ment of Clinical Services. Dr. Bennett Leventhal of researcher Peggy Slater when Presiding Judge Nancy the University of Chicago and Bernardine Dohrn were Sidote Salyers asked Ms. Slater to become head of the asked by Chief Judge Donald P. O'Connell to under­ Juvenile Court's Permanency Planning Project, with take this work, and the Clinical Evaluation and offices at the juvenile court. Ms. Slater works closely Services Initiative ("CESI") was begun as a pilot with all court personnel to monitor and strengthen the project in January 1996, housed at juvenile court, permanency planning process at the court, helping to with attorney Julie Biehl as director. Now the project develop better ways of ensuring that children are will be fully staffed, advisory work groups represent- placed quickly in suitable and long-lasting place­ . ing all parties will be formed, and the research design ments. Ms. Slater is exploring the uses of mediation is being finalized. The research, involving both child at juvenile court, establishing family case­ protection and juvenile justice divisions of the juvenile conferencing at the beginning of child welfare cases, DNews ana Notes 24 creating a parent center and brochure for each parent The Citizens Committee on the Juvenile Court. petitioned into juvenile court, overseeing the opera­ Bernardine Dohm and David Reed, as well as several tions of the expedited adoption program and protocol Center advisory board members have been appointed which she pioneered, and adapting the National members of the Citizens Committee of the Juvenile Council ofJuvenile and Family Court Judges Model Court. This committee has a long history of providing Court Guidelines to our juvenile court. citizen input into the administration of the Cook County Juvenile Court. The Citizens Committee has Analysis of Juvenile Court Caseload Screening. recently been revitalized under Judge O'Connell's With funding from the Wood Fund of Chicago, the leadership, expanding its role in overseeing the Lloyd A. Frye Foundation, and the Field Foundation, activity of the juvenile court. The committee is now the Center has embarked on an ambitious effort to chaired by a Northwestern alumna, Diane Geraghty understand and address the confounding problem of ('72), succeeding Catherine Ryan ('72) who was juvenile court caseload. This two-year research recently appointed as chief state's attorney at juvenile project has begun with the collection of the data court. necessary to describe the characteristics of the caseload and its changes over the last twenty years. The Juvenile Law Committee ofthe Chicago Bar The research will highlight the changes that contribute Association. Children and Family Justice Center most to the caseload increases, and identify proce­ attorneys have chaired the Chicago Bar Association's dural and programmatic options that could reduce the Juvenile Law Committee since 1992. During 1995-96, inflow and retention of these cases in the court under the chairmanship of Peggy Slater, the commit­ system. In addition, the project will identify models tee became an important contributor to juvenile court for caseload reduction and diversion from around the reform through the organization of meetings on a country and evaluate their utility for the Juvenile variety of administrative, legislative, and practice Court of Cook County. David Reed is research issues. Through the increased participation of director. juvenile court lawyers and judges, the committee has become an important forum for discussion of the Assisting the Development and Implementation of significant organizational changes being made at the an Integrated Management System. juvenile court. The Center's 1995 report on the limitations and inadequacies of the information system at juvenile Child Protection Advisory Committee. Bernardine court was adopted by Chief Judge Donald P. Dohm, Annette Appell, and Bruce Boyer have O'Connell, who has pursued expertise and funding to participated in the work of the Child Protection develop an integrated, useful and reliable system of Advisory Committee, organized by Presiding Judge information and management at juvenile court and Nancy Salyers to address a range of issues relating to with its related entities. The Center has continued to court management and practice. Bruce Boyer partici­ help parts of the court system assess their needs and pated in the work of a committee focused on revising prepare designs for a management system, and to the pleading practices of attorneys in abuse and offer technical assistance to the court as requested. neglect cases, with the dual objects of increasing the The chiefjudge obtained county board funding to specificity and detail of charges heard by juvenile move forward this essential component ofjuvenile judges and improving the overall quality oflawyering court improvement in late 1996. practice in the court. Bernardine Dohm, Monica Mahan, and David Reed have worked on the Diver­ he Center is collaborating with all offices sion Subcommittee, which has presented a body of and parties at the Juvenile Court of Cook recommendations to the presidingjudge. TCounty to support the creation of the broadest possible consensus for the content and The Illinois Legislative Committee on Juvenile method of improving justice for children. This Justice. Center attorney Steven Drizin was appointed includes increased consultation with the juvenile court by Governor Edgar to this important body. The and circuit court and participation in statewide committee issued its report in May 1996. Steven commissions:

(conclusion on p.26) 25 News a1UI Notes D Drizin wrote an eloquent dissent to the commission's The ABA Juvenile Justice Center, in coopera­ report. This dissent was widely circulated and could tion with the Children and Family Justice Center, will become a blueprint for constructive reform of Illinois hold a training conference for juvenile justice advo­ juvenile delinquency law. cates on the occasion of the 30th anniversary of In re Gault, the 1967 case which first established constitu­ The Illinois Justice Commission. Thomas Geraghty tional rights for children in the United States. The was appointed in 1995 to the Illinois Justice Commis­ conference will be held in October 1997 at Northwest­ sion, whose charge was to make recommendations ern University. concerning the administration ofjustice in Illinois. The commission issued its report in July 1996; many In the Spring of 1998, the Center, in collabo­ of the recommendations addressed problems in ration with the court and other groups, plans to Illinois' juvenile justice system. The report recom­ convene a national conference, "Who are the Children mended improvement in training programs for Illinois ofthe State," patterned on a conference of that name judges and lawyers who work in juvenile courts, held in Chicago in 1898. The focus on describing the reductions in caseloads for juvenile judges, and the children, their conditions and their needs, will lay the creation of more alternatives for juveniles adjudicated basis for the series of conferences, law journals, and sentenced by juvenile court. national conventions, and activities of the centennial year. Evaluation ofthe Office of the Cook County Public Guardian. Center attorneys were appointed to participate in a court-ordered evaluation of the Office of the Public Guardian. The committee is co-chaired by Professor Jack Heinz of Northwestern University School of Law and by Dean Nina Appell of the Loyola University School of Law. Members of the committee will include Tom Geraghty, ofNorthwest­ ern University School of Law, and several Center board members. The purpose of this evaluation will be to assess the role of the public guardian in neglect and abuse cases and to evaluate the functioning of the A.final note: Children and Family Justice Center office of the public guardian. attorney Annette Appell accepted a tenure-track position at the University of South Carolina Law n 1999, the Center will present a series of School in 1996, and we reluctantly celebrated her forums, conferences, colloquiums, and projects good fortune and move. Happily, Derrick Ford Iin conjunction with the centennial anniversary has joined the Center team, bringing with him his of the Juvenile Court of Cook County, the first experience in special education law. juvenile court in the world. In addition, the Center expanded its advisory Presiding Judges Nancy Sidote Salyers, board, welcoming new board members Leigh William Hibbler, and Sophia Hall have convened a Bienen, Jeffrey D. Coleman, Alex Correa, Nathan Children's Court Centenniel Committee with the P. Eimer, Arthur Hill (who subsequently resigned theme ofjustice for children-past, present, and to accept the position ofchief deputy state's attor­ future. Plans include lecture series, exhibitions, and ney under the new state's attorney), Sheila videos describing the rich Chicago history which led Kennedy, Professor Dawn Clark Netsch, Michelle to the establishment of a special court to remove Obama, Professor Margaret Rosenheim, Howard children from the adult jails and poorhouses in 1899; Saffold, and Dr. Barbara Williams. targeted programs for the children brought into juvenile court today; and the convening of forums to explore the future of children and the law into the next century.

D News anti Notes 26 Serving a Neighborhood Takes Ties within Community

by Mike Austin Law Bulletin staff writer

little more than a year into The remaining 60 percent nity trust and confidence, but it also her job as director of the of the clinic's resources go to the translates to clinic volunteers A Community Law Clinic in children in the form of free legal learning more about their clients, West Town, Angela M. Coin says she representation in juvenile delin­ Coin says. Most of the 80-some finally feels she has the support of the quency matters-the clinic's main volunteers who donate services to the people she and her colleagues are goal, according to Coin and Kell. clinic do not live in the largely trying to help. "We don't pretend to be the Hispanic West Town and are not familiar with the area, Coin says. "You have to earn your savior of the neighborhood," Kell respect in the neighborhood," Coin says. "There's a lot more work that "The more involvement we says. "You have to do some good needs to be done, but the neighbor­ have in the community, the more things before the residents say, 'She's hood seems to think we're a good support we can give to the volunteer OK."' partner. I would say we've got a attorneys in terms of [the client's great deal of good will in this environment]," Coin says. "The Coin, along with fellow staff neighborhood and it's been earned attorney may live up in Lincoln Park, attorney William Kell and community through hard work." but he'll get a kid [as a client] who liaison/administrator Jacinta Wong, lives in West Town." operates the clinic five days a week, As a showing of good faith, generally from 10 a.m. to 5 p.m. the CLC's three staff members often Opened in September 1995, the CLC is an outgrowth of the Angela Coin helps Wells High student, Children and Family Justice Center of Edward Gonzalez the Northwestern University Legal Jr., prepare for an Clinic. upcoming mock trial competition. The Community Law The CLC's lawyers, Clinic's office is in the Northwestern NU law students, Settlement Association building at and volunteers Noble Street and Augusta Boulevard provide legal aid to the West Town on the Near West Side. community The Clinic serves mainly West Town residents but makes participate in community events in Coin says she can relate to exceptions for "compelling cases and around West Town, which is people who find West Town unfamil­ outside the area," Coin says. All of roughly bounded by the Kennedy iar territory. Coin grew up on the the clients are low-income. Expressway on the east, Hubbard East Coast and graduated from Northwestern University School of About 40 percent of the Street on the south, Kedzie Avenue Law in 1995. She was offered the clinic's resources are devoted to on the west and Bloomingdale CLC directorship shortly after dealing with "general service to the Avenue on the north. graduation. neighborhood," which includes Coin teaches a government providing legal advice and referrals law class at Wells Community "They said, 'There's two on matters like Social Security Academy and coaches the school's desks and two chairs out there. Do benefits, guardianships, welfare, mock trial team. On a recent day you want to go start a clinic?"' Coin immigration and divorce, Coin says. Coin was helping a Wells student says. In those matter, which are handled by practice for an upcoming competi­ But while Coin is a relative Kell, the goal is to teach people to tion. newcomer to West Town the area is represent themselves or to direct them Coin and Kell also spend home to Wong, the clinic's commu­ to another agency that can help them. part of their time addressing commu­ nity liaison who is fluent in English, nity groups. The outreach is a Cantonese and Spanish, and speaks means for CLC staff to earn commu- (concluded at the top ofp.28)

27 News atut Notes D some Japanese, Italian and French. experience is good for the students, CLC has doubled, she says. A receptionist in the building also he says, first because it shows them Most of the volunteers are speaks English and Polish. what it is like to be poor, and second first- to fifth-year associates, Coin "We make use of everyone because it causes some of them to says. around us," Wong says. think about public policy and how someday they might work to change "It's a chance [for volun­ Kell comes to the clinic from it. teers] to do more court work," Coin Bloomington, Indiana, where he says. "I think that's what makes it founded the Child Advocacy Clinic at "Some [law students appealing, but working with the kids Indiana University School of Law. working at the clinic] get turned onto is appealing, too." it," Kell says about public interest These days Kell finds law. "They say, 'Gee, it looks like The CLC is funded by himself working on all sorts of cases, there's nobody good in this area' or several foundation grants and often referring clients to someone another area." donations from Chicago law firms. with more expertise in a given area, According to CLC statistics, "It's a great cooperative say Kell, who was brought to Chi­ effort to provide legal services for the cago as a senior lecturer at NU's law there seems to be no shortage of public interest work that needs to be residents of that community who school. done. There also appears to be no otherwise wouldn't get those ser­ "You've got to tap all the shortage of lawyers wanting to work vices," says Thomas F. Geraghty, an legal brain cells up there," Kell says, in the field, at least part of the time. associate dean at Northwestern's law pointing to his head. "I think the key school and director of its clinical Last December the CLC is to know what you don't know so program. "With the cutbacks in took on only three cases, Wong says, you don't steer anybody wrong." funding for legal services, initiatives but through the first three weeks of The CLC gets plenty of help like this are examples of what can be this December, the clinic had taken done to meet the shortfall." from NU law students who pitch in on 26. In about the last eight months, on the intake process, Kell says. The the number of volunteer attorneys at Reprinted with permission Chicago Daily Law Bulletin ©

Profile: David Reed, The first stage of this research has been collecting the Research Coordinator data which can help explain the tremendous growth in Children and Family Justice Center the court's caseload. Several large data sets are "in process" from the court and the police department. David Reed, who has been working with the CFJC for three When they are all available, David will be able first to years as a consultant, became a full-time research coordina­ pinpoint the various causes of the huge growth in tor in the fall of 1996. He comes to the Center with a Ph.D. caseload. Second he will identify strategies which are in sociology from Northwestern and 20 years of community most likely to reduce the numbers, and third he will and juvenile justice work in Chicago. evaluate the effectiveness of those and other strategies which are implemented at the court. This data will It's been a busy 1996 and looks to be even busier in 1997. provide a previously unavailable resource for policy He has continued his two years of consulting work with the research on the Cook County juvenile justice system well Cook County Juvenile Temporary Detention Center. The into the next century. 1994 juvenile court information management study on the whole juvenile court prompted a request that he do some In addition to these two continuing research projects, consulting on the problems of information management in David is a part of two Illinois Juvenile Justice Commis­ the juvenile detention center. This was expanded when he sion studies which will be carried out during the coming was asked to consult with a major internal reorganization year. project. This work will be continuing into 1997 as the new juvenile court information system gets under way and the In the first, he is working with the juvenile justice staff detention center prepares for a central and early position in of the ABA and Steve Drizin and Bernardine Dohm of its implementation. the CFJC to study the quality of counsel for juvenile defendants in Cook County. While it will focus on the For the last eight months of 1996, David has directed a public defender's office, the study will assess more two-year research project seeking solutions to the endemic broadly the perceptions and experiences of a range of problem of an overwhelming caseload at the Juvenile Court actors in our system-particularly the experience of the of Cook County. juveniles themselves.

(continued on next page) DNews a1lll Notes 28 Legal Clinic faculty, students, and Town community and to expose its alumni have volunteered again youth to the practice of law. this year to coach the mock trial Northwestern law students who team at Wells Community Acad­ participate in the program become emy in Chicago's West Town mentors and have the opportunity neighborhood. Clinic faculty to serve as positive role models. Wells Angela Coin and Derrick Ford High* along with alumni Robin Crabb Last year's trial team made it into School ('95) and Christian Kline ('95) the final round in the Chicago city Mock continue to work with high school competition, and one high school Trial juniors and seniors. They teach trial technique, ranging from pre­ senior was awarded a summer Team trial motions to closing state­ internship with Judge O'Connell, Doubles ments, and government and law Chief Judge of the Circuit Court of in Size classes. Cook County. This year the trial team has doubled in size, with over 60 students at Wells High Through this program, the Com­ participating in the program. This munity Law Clinic hopes to spring, these students will com­ strengthen ties with the West pete both citywide and statewide.

David Reed (continued.from previous page.)

In the second study, David is co-principal investigator people who, while they are arguably some of the most with Robin Bates of the Jane Addams School of Social needy, are also most at risk with changes in the national Work in a statewide study of gender discrimination in welfare programs. He continues his membership on the juvenile justice. At this point, it appears that this re­ board of Children and Youth 2000-a public-private search will also be done cooperatively with a team from partnership promoting the long-term health needs of the University of Illinois at Springfield, though the two children. He also chairs the Illinois State Public Policy teams will be employing quite different methodologies Committee of the YMCA. This group is a statewide effort and approaches to studying the problem. Both of these to create a public voice for the constituency of more than IJJC studies will use interns for much of the field and the 60 Y's across the state on issues affecting their historical interviewing work. Interested persons should contact the commitment to providing resources for promoting the Center to see about participating. Both studies will healthy mind, body, and spirit of the youth of our state. require substantial time commitments in the spring, anci Finally, David continues as a member of the Citizens the gender study will offer full-time employment for much Committee on the Juvenile Court, where he is an active of the summer. member of the detention and research subcommittees.

In addition to his work at the CFJC, David chairs the board of the SSI Coalition-an advocacy organization ••• seeking to preserve the safety net for disabled and elderly •

29 News aTUI Notes 0 I. EXPERIENTIAL LEARNING

ne of the great modem To a certain extent, of LESSONS cliches is the image of the course, trial and error is inevitable. self-taught genius. Consider But it has three distinct limits as a O device for professional growth. First, FROM the great blues guitarist or country fiddler who has never had a lesson, trial and error is time consuming and PETTICOAT the high school drop-out who invents cumbersome. It obviously makes a revolutionary computer, or the great good sense to be shown the LANE wimpy kid who goes off into the right way to do something, rather wilderness and emerges an than blunder about until you discover undefeatable master of the martial it for yourself. All of law school is by Steven Lubet arts. 1brough motivation, dedica­ based on the premise that purposeful tion, and single-mindedness, these instruction is preferable to experi­ folkloric icons manage to hone their mentation. In particular, clinical skills and achieve perfection. education posits that mentoring can save initiates from the pitfalls of false Practice makes perfect. It's leads and blind alleys. As they say in a great legend but it can't be true. medical school, "See one, do one, No musician, hacker, or ninja ever teach one." achieved perfection, or even profi­ ciency, merely through repetition. In Second, the process of trial every case, skill comes only by and error ( especially where lawyers building on a foundation of others' are concerned) makes it nearly knowledge, insight, and experience. impossible to isolate the variables of successful practice. For example, The true axiom ought to be assume that a lawyer made 12 equally Steven Lubet that "Practice makes permanent." crucial decisions in the course of a Whatever you practice is what you trial which she ultimately won. will do, whether it is on key or out of Which of the 12 should be repeated tune. To progress from permanence next time? Did every decision to competence, one requires training, contribute equally to her success, or reflection, observation, and, only were some of them actually errors then, practice. which she was able to overcome? Perhaps she only made seven correct This applies to the legal decisions, but that was sufficient to profession as well as to the arts and surmount the five poor ones. In other Professor Lubet sciences. Lawyers learn through words, trial and error tells you only that you succeeded. It does not tell contributed this practice, but care must be taken to ensure that the lessons are the correct you exactly why. And given the essay to a ones. Bad habits are as easy to multitude of individual choices, reinforce as are good ones. In an decisions, and tasks that comprise the recent unstructured and untutored world, practice of law, it is almost inconceiv­ able to think that a lawyer could symposium practices are repeated when they succeed and abandoned when they do know precisely which tactics worked for the not. Thus, lawyers will tend to and which were futile. Indeed, in the continue using techniques that they absence of feedback it is entirely Nebraska Law perceive as having worked, while possible that a lawyer might attribute Review. they will stop doing things that seem victory to a decision that was actually to have failed. a blunder. We all know lawyers who have won cases in spite of them­ selves.

D News atut Notes 30 Which brings us to the third reformed. Left to itself, evolution consequence, they will be best able to reason that unmediated trial and (read: trial and error) does not lead to teach the broad strokes of what has error can never be a prescription for optimum results, but only to survival. worked, but we should not assume successful law practice. Evolution that they will be capable of rewards survival, not optimality. The breaking their successes into smaller development ofa lawyer's profes­ II. CLINICAL EDUCATION components and applying the discrete sional competence may be seen as a lessons to different situations. sort of evolution. The lawyer hat does this tell us about engages in a variety of practices, clinical legal education? In my experience, practitio­ techniques, and tactics as her practice W Most obviously, the ners teach by saying "Here is what develops. Some of these will be insight that "practice makes perma­ has worked for me." Academics retained and repeated, some will be nent" discredits the oft repeated teach by saying "Here is how to think adapted or refined, and some will be argument that lawyering skills can be about the problem." The challenge discarded. The objective of the "picked up in practice." Left to her and unique opportunity for law practitioner, then, should be to own devices, the neophyte lawyer ( or school clinicians is to use the preserve the best techniques and even the experienced practitioner) modalities of practice to teach eliminate the worst. The study of will at best have to slog through a students how to "think about the evolution, however, teaches us that series of misguided choices and poor problem." adaptive traits tend to persist so long decisions before arriving at a reliable as they do not preclude survival. In approach to law practice. Even then, One way to think about other words, all manner of awkward, many results are likely to be mediocre problems is as we encounter them in nonproductive, or sub-optimal since, as we have seen, evolution the course of clinical instruction. practices are likely to remain in any does not tend toward optimization. Another way is through the use of lawyer's repertoire, simply because stories, observations, and narratives. they are not so counterproductive as There is, of course, the A story drawn from a case, from to lead to catastrophe. possibility that the new lawyer will politics, or even from everyday life not be entirely on her own. She can provide the clinical teacher with The goal of law practice, might have the benefit of mentoring, a template for understanding the though, is to be as good as possible, or even a law firm training program. interaction between human beings. not merely to survive. Unfortunately, True enough. But both mentoring A story can be used to illuminate the the ordinary process of evolution and in-house training operate against consequences of a particular form or cannot lead to optimum results, but the backdrop of increasingly competi­ philosophy of law practice, or to only to the aversion of disaster. To tive law practice. Economic reality, suggest modalities for enhanced use a mundane example, consider the particularly in large firms, tends to methods of representation. A more messy desk. We all know lawyers compel increased productivity to the modest use of narrative is to use it as whose desks and offices look as exclusion of training. Themselves a device to generalize about certain though a tornado has just rampaged under pressure to increase billings, skills inherent in the practice of law. through the building. We partners can devote time to the Specifically, all lawyers negotiate, also know, and so do our disorderly education of associates only at the some better than others. As clinical colleagues, that a neat desk and expense of their own billable hours. teachers, we can learn something organized filing system would make So, while there can be no doubt that about negotiation by watching gifted law practice easier, more efficient, training happens at law firms, it is as non-lawyer bargainers in action, and and probably more successful. So lik'ely to be incidental training as it is then relating their stories. By why don't they straighten out their to be purposeful. learning how others "think about the desks? Why doesn't the process of problem" of commitment in negotia­ trial and error lead to improvement Nor can we disregard the tion, we can improve our own on what is, after all, a pretty easy fact that many of the partners ability to instruct our students. problem to solve? The answer is that themselves will have learned their messy desks don't manifestly lead to trade primarily through trial and lost cases, so lawyers can endure error. In other words, they will have (please turn the page) chronic disorganization. Thus, the had the same difficulty isolating ill-conceived conduct is never variables as we discussed above. In

31 News aTUt Notes D Ill. STORY FROM PETTICOAT No one understands this style overhead door so that it could be LANE challenge better than the vendors of made completely open to the street. Petticoat Lane. Over generations of In fact, with the door rolled up, the or well over a century, practice they have developed pitches, shop became an extension of the London's East End has served spiels, patter, and technique, all street. Fas a port of entry for newly designed to bridge the gap between arrived immigrants. The heart of the attention and purchase. Some The peddler's first (and East End, for nearly all of that time, peddlers have developed extended easiest) task was to draw customers has been Petticoat Lane, a vibrant acts that have all but become variety in from the street. There is always street market where vendors could set shows. They joke, entreat, sing, and plenty of pedestrian traffic on Oxford up stalls selling all manner of low­ occasionally dance, exploiting their Street, and though most people seem priced goods. Once predominantly knowledge that the longer people to be rushing from one place to Jewish, Petticoat Lane is now the watch the more likely they are to buy. another, the steady patter from the domain of newer immigrant groups, store's loudspeakers was sufficient to chiefly from Asia. Every Sunday Although this sales method ensure that a constant stream of there is a lively competition among has diminished along following the passers-by would enter the shop. hundreds of sellers for the attention rise of department stores and growth That was the first negotiation: "If I and, they hope, the money of the of print and televised advertising, I make my public address system loud passing crowds. recently had the opportunity to enough to attract you but not so loud observe a master at work. I have as to annoy you, will you spend some Street market peddling, of come to think of him as "Nick," of your time in my shop?" course, is a form of negotiation. though I never learned his proper Actually, it is a series of negotiations. name. He operated out of a storefront The second task was to keep The seller must first bargain for a on London's Oxford Street, once one the people in the store long enough to buyer's attention. Thus, in the first of that city's classiest shopping begin selling. That was harder. It negotiation the seller offers an thoroughfares, though now in slight takes only a small expenditure of attractive array, a clever pitch, or decline and given increasingly to time to poke your head into a shop to some other form of motivation; the discount stores and off-price imports. see what is going on. It is a greater buyer responds with an expenditure Oxford Street is removed from commitment to enter the store and of time. Only if the first negotiation Petticoat Lane by about four stops on wait (remember, there are no goods is successful can the seller move on to the underground, several levels of on display) until the selling begins. the next stage-offering specific economic comfort, and at least a One way to keep people in the store goods for purchase. But this too generation or two of British citizen­ was by telling jokes. Not great jokes, turns out to be an extended process. ship. Still, this particular practitioner not night club quality material, but The seller must actually negotiate to had clearly done his training at the enough ever-so-slightly off color hold the buyer's attention while street market. The storefront was just humor-interspersed with promises displaying a variety of goods and a slightly fancier, waterproof stall. of fantastic bargains-to keep the quoting a series of prices. In other crowd entertained while new custom­ words, only by maintaining the Nick sold consumer elec­ ers continued to arrive. buyer's interest may the seller obtain tronics: Compact disk players, enough of the buyer's time to pursue calculators, cameras, video games, Why not sell the goods the negotiation through to the desired and similar items. Nothing was on constantly? Why keep consumers conclusion-a sale. display; all the goods were kept in a waiting? Why make the sale seem back room. The storefront itself was more like a show? Two reasons. To recap: First, the seller completely empty; not a chair, not a First, Nick needed a critical mass of offers entertainment and the buyer counter, not a cabinet. The only customers in order to make his pitch. responds with time. Once that furniture was a dais and podium at His sales technique was a set-piece relationship has been established, the the front of the room, where the that could not be delivered to a seller offers wares and the buyer hawker stood with a clip-on continuously shifting crowd. More responds with money. The challenge microphone attached to a comfortably importantly, he was looking for for the seller, then, is to move the powerful public address system. The commitment. The longer some one negotiation from the first level to the shop was equipped with a garage- stayed in the store, the more likely he second.

DNews a1Ut Noles 32 or she would be to buy something. Nick was now offering Assistants walked around Once customers invested ten or something far more valuable than the room collecting five pound notes, fifteen minutes watching the routine, entertainment. Out came a video passing out colored paddles in the more they would want to have camera. "Who'll give me 30 pounds exchange. Those who didn't come something to show for it. for a new, full-feature video camera." up with the five quid were politely Well, 30 pounds is a lot of money, shown to the exit, leaving about 40 Of course, even the best especially compared to 50 pence, but people to view Nick's wares. The spiel won't keep shoppers attentive a hand or two went up. "Will you overhead door was shut; anyone forever, or even for very long. Which give me 30 pounds for this video could leave, but newcomers were brings us to Nick's third level of camera? If I throw in a CD player discouraged. Nick had his audience negotiation. Once he decided that he will you still give me 30 pounds? If I of committed shoppers. After a liked the size of the crowd he began add a digital assistant will you still buildup of about 20 minutes, it was offering small (but far from worth­ give me 30 pounds?" Now hands time for the real sale to begin. less) electronic items for unbelievably were up everywhere. True to his low prices. In the manner of an word, Nick chose the lucky indi­ Another video camera auctioneer, he asked "Who' ll give me vidual and handed over all of the appeared. Hands dug into pockets, five pounds for a video game player?" prizes in exchange for 30 pounds. searching for the 30 pounds that the Everyone thought it was another gag last one had sold for. "Who'll give or quip, since the device was worth What was going on here? me 150 pounds for this video almost ten times that amount, so no Why the massive giveaway? Had camera," cried Nick, describing its one spoke up. Nick continued by Nick figured out a novel way of features, warrantees, and value. picking somebody out of the crowd, laundering stolen goods? Actually, There were no immediate takers. "You sir, wouldn't you pay five Nick was investing in commitment. "Cash, check, credit card; payable in pounds for a brand-new, in-the-box The early distribution of some surplus any currency; only 150 pounds for video game player? Well give me inventory sent the message that it this brand new video camera. What five quid and it's yours." The might pay off for customers to stick if I add a CD player? What if I add a customer-perhaps a shill, perhaps around. If thirty pounds buys all that Gameboy?" A hand went up, then not-complied, and the game player stuff, what can I get for ten pounds? two more. "Sir, will you take all these was handed over. Or fifty? Well, there's only one way goods for 150 pounds?" The cus­ to find out. Invest more time. tomer nodded. "Did I promise that Now people began to see a you'd thank me?" Another nod. payoff for their investment of time. But not only time. Nick was Then take the video camera, the CD Nick had raised the negotiation to a moving toward the end game. "We player, the Gameboy, and I'll add a new plane. Money was on the table, have lots more to sell and give away VCR, all for your 150 pounds." The in addition to time. So here came today. I promise you'll thank me. deal was made. The next buyer also the next phase. "Who'll give me 50 Do you trust me, sir?" The customer paid 150 pounds for a video camera, pence for a Walkman?" This time agreed to trust Nick. "Give me five but didn't get the extra stuff. And so hands shot up all over the room. pounds." The customer complied. the sale progressed, as Nick wheedled True to his word, Nick tossed a Nick handed over a full sized CD the base prices ever higher, ir.termit­ pocket-sized tape cassette to a player, easily worth 50 pounds or tently throwing in extraordinary customer, and one of his assistants more. "Who'll give me five pounds," bonuses. Every now and then there collected the nominal 50 pence. called Nick, "I promise you'll thank was another virtual giveaway, but the "Who'll give me half a pound for a me." Hands went up all over the norm had clearly changed from Discman?" More hands, another room. Nick called to his assistant, astonishing freebies to standard putative sale - although it was really "Look in the back room and see how discounts. But people kept buying at a gift or premium just for sticking many of these CD players we have." prices ranging from 50 to 250 around. In the next five minutes, The answer was fifty. "Will fifty pounds, everyone seemingly satisfied Nick probably handed out a dozen or people give me five pounds," shouted with their purchases, and the lucky more tape players, CD players, and Nick. The hands all stayed up. few overwhelmed at their good luck. the like, all for virtually nothing. Anyone who got one wanted more; anyone who didn't was anxious for a turn. They were feeling increasingly (please turn to p.34) committed to hanging around.

33 News arut Notes D Here's the point: Not a Finally, Nick obtained what and benefits. A good explanatory person in that room had left home we might call ego commitment. Note paradigm is the poker game: current that morning intending to spend that he took people's money through betting should be based on the value hundreds of dollars on electronic means that were almost-but-not­ of your present hand, not on how equipment. No one had wandered quite-crooked. The first few people much money you have already lost. into Nick's shop expecting to come who gave him five pounds were In other words, sunk costs are sunk, away with a VCR or computer. Nick rewarded with spectacular piles of spent, gone; they will not affect the knew that. Had he begun by offering prizes, the implication being that he future. video cameras at 150 pounds, he was selling all those goodies for a would not have made a single sale. mere five quid. Of course, that was Rationally, then, Nick's No one was shopping for video not true. When fifty people handed device of extracting a five quid cameras, at that price or any other, on over their five pound notes it turned commitment should have been Oxford Street. Nick, however, had out that they had bought nothing meaningless. A shopper's willing­ managed to turn strollers and more than the right to pay 10 to 40 ness to spend, say, 60 or 80 pounds bystanders into customers. How? times more for the same stuff. on a VCR should be based on the What was the secret of his success? value of the VCR and the customer's You couldn't say that Nick access to discretionary funds. The Nick's insight was that he had been deceitful. He never said "sunk" five pounds should not make could prosper by obtaining the what the five pounds would or a difference. But, as Nick knew well, incremental commitment of his wouldn't buy. He merely allowed the it obviously did. People wanted to shoppers. As they became increas­ covetous shoppers to assume that they "get something" for having spent the ingly invested in his enterprise, they were about to get something for time and put up the five pounds, and became increasingly likely to spend nearly nothing. When that didn't that made them morereceptive to their money on his goods. There happen, the customers were left with Nick's pitch. were three keys to his method: a choice. They could get angry with themselves for being tricked, or they In other words, as every First, he extracted commit­ could decide to hang around and lawyer should understand, people can ments of time from as many potential buy something- thereby justifying be stimulated to act by a wide variety customers as possible. Indeed, not the decision to give Nick the money of factors, only some of which are only did Nick initially persuade in the first place. In other words, the "rational" in the strictly economic people to enter his shop by entertain­ decision to buy something became the sense. One key to negotiation, then, ing and amusing them, he also used a equivalent of validating one's own is the discovery of what we might call series of surprises and deals to entice cleverness. the other party's "psychological them to remain in the store, thereby motivators." recommitting their time. IV. LESSONS FOR LAWYER· Nick's example further Next, Nick obtained a token NEGOTIATORS teaches us that commitment or down payment of five pounds from as investment can be a powerful many of the crowd as possible. This he first lesson from Petticoat motivating force. Recall that at every willingness to commit money Lane is that psychology state in his negotiation set piece, effectively separated the browsers Ttrumps economics. While to Nick sought a small additional from the deal-seekers, allowing most this may seem like an unre­ commitment-first in the form of Nick's assistants to escort the mere markable conclusion, it should be a time, eventually in the form of spectators from the shop. More powerful instruction to modem law money. The more preliminary importantly, everyone who stayed in students, most of whom have been commitment he obtained, the more the store had a five pound investment taught at some point that law-and­ likely he was to succeed in his in making a purchase. Once Nick economics modeling can predict real bargaining held their money, they had a stake in world activity. In brief, the standard getting it back by bidding on a law and economics theory posits that How can this approach be camera, tape deck, or VCR. rational actors will pay no attention applied to negotiation by lawyers? to sunk costs, but will instead base What sorts of commitments might their decisions strictly on future costs one induce from a reluctant adversary

DNews aTUt Nous 34 in the course of negotiating a able to resolve tentatively a series of V. CONCLUSION settlement or transaction? There are sub-issues. Every partial step toward several possibilities. the ultimate resolution constitutes an What does all of this tell us "investment" in the outcome, at least about clinical legal education? Why Most obviously, one lawyer as palpable as the five quid that Nick not simply say that a pleasant, can exact from another a commit­ acquired from his customers. promising negotiation may some­ ment of time. Following Nick's Of course, there are many times achieve superior results? What example, your chances of reaching other ways to negotiate with lawyers. is the value of the extended anecdote agreement should increase with the At one extreme, there is the value­ about Nick and Petticoat Lane? duration of the negotiation. The creating approach, where all informa­ more time that the opposition devotes tion is shared in the hope of achiev­ The answer is that we learn to negotiating, the more inclined they ing a win-winsolution. The polar through experience. Imagine that I should be to want to come away with opposite is "Bulwarism," which told you that "In the right situation, something to show for it. Thus, an involves making a single offer and you might want to encourage a offer that was not immediately sticking to it unyieldingly through­ negotiating partner to make increas­ attractive or sufficient, might well out the negotiation. There are many ing commitments to you, in order to become acceptable at the end of a other choices along the flexibility enhance your chances of success." protracted discussion. Therefore, one continuum. There are also many Your almost certain response would would want to employ a variety of other ways to sell electronic equip­ be a series of questions: What devices to keep the negotiation going. ment. circumstances? What sort of commit­ For example: ments? Why? When? How? The lesson from Petticoat Nick's story provides a cognitive 0 Make the negotiation enjoyable. Lane is that Nick's approach works answer to these, and other questions. Your adversary/partner will be more in certain situations. It is a device, a Equipped with a narrative, we can likely to continue negotiating if the tool, a medium, that may be success­ much more readily understand the experience is not painful. Therefore, fully employed when the circum­ details and elements necessary to be as pleasant as possible and avoid stances are right. But what are those employ this particular technique. threats, coercion, or ultimatums. circumstances? Again, the answer lies in close observation. Nick had Narrative, however, is 0 Offer intermediate rewards. Make plenty of goods to sell, and no use for nothing more than experience once them other than to sell them. He removed. By studying the story of sure that the negotiation shows was, shall we say, strongly motivated. Petticoat Lane, we can substitute progress. Use incremental conces­ His customers, on the other hand, Nick's education and past practice for sions to maintain momentum. were hardly motivated at all. They our own. Clinical education, of had no idea that they wanted, much course, goes one step further, by 0 Keep the "prize" a secret. Do not less needed, the goods that Nick had creating, reviewing, and refining the reveal your ultimate offer until the for sale. They needed to be enticed, experiences themselves. After that, other party has invested considerable or at least encouraged, to pursue the practice makes perfect. time waiting for it. negotiation. But note that Nick didn't beg, wheedle or cajole. His Nick's second technique, the entire schtick was designed to make extraction of cash, is more difficult to his goods seem worthwhile, attrac­ 000 adapt to lawyers' negotiation. Under tive, and valuable. Extending this all but the most unusual circum­ scenario to legal negotiation, we stances, no other lawyers is going to would conclude that Nick's commit­ pay money for an opportunity to ment-technique will be most useful continue negotiating. On the other when you have a good offer to make, hand, payment can come in a variety but the other party does not yet of forms other than cash. Perhaps the realize it. other party can be persuaded to provide you with a written proposal or a list of demands. Perhaps you might be able to agree to procedures for negotiating. You might even be

35 News a1UI Notes D We extend our thanks and appreciation to the following adjunct faculty for contributing their valuable time and expertise: PRE-TRIAL LITIGATION

Ellen M. Babbitt Richard P. Glovka Gail A Niemann Butler Rubin Saltarelli & Boyd Wildman Harrold Allen & Dixon Office of the Corporation Counsel

Mary Patricia Benz. Lynn A Goldstein William E. Rattner Quinlan & Crisham, Ltd. First National Bank of Chicago Hopkins & Sutter

Antony S. Burt Robert M. Greco Janet Reed Hopkins & Sutter Mora & Baugh, Ltd. Attorney at Law

Steven Cohen . Douglas B. Harper Timothy J. Rivelli Krasnow, Sanberg & Cohen Burditt & Radzius Winston & Strawn

Jerry A Esrig Phillip Harris George Spellmire Epstein Zaideman & Esrig, PC Kirkland & Ellis Hinshaw & Culbertson

Susan G. Feibus Karen Ksander Susan Walker Rosenberg & Liebentritt Sonnenschein Nath & Rosenthal Cairns & Levin

Mark E. Ferguson William J. McKenna Priscilla Weaver Bart/it Beck Herman Palenchar & Hopkins & Sutter Mayer Brown & Platt Scott James W. McMasters Robert J. Zaideman Derrick Ford Northwestern University Epstein Zaideman & Esrig, PC Northwestern Legal Clinic Barry T. McNamara Edward Zulkey Jeffrey T. Gilbert D 'Ancona & Pjlaum Baker & McKenzie Sachnoff & Weaver, Ltd.

ADVANCED TRIAL ADVOCACY

Kristina M. L. Anderson Marsha A McClellan James E. Sullivan Fishman & Merrick, PC. Office of the U.S. Attorney Martin J Healy & Assoc.

Bradley E. Lerman Clyde E. Murphy Judge Michael P. Toomin Kirkland & Ellis Chicago Lawyers Committee for Circuit Court of Cook County Civil Rights Under Law., Inc. Scott Levine Andrea L. Zopp Office of the U.S. Attorney Jed Stone Sonnenschein Nath & Rosenthal Law Offices ofJed Stone, Ltd.

DNews a1UI Notes 36 ETHICS

Jeff C. Berghoff Derrick Ford William O'Connor Mayer Brown & Platt Northwestern Legal Clinic Sachnoff & Weaver

David Bohrer Thomas F. Geraghty Roger Pascal Oppenheimer Wolff & Donnelly Northwestern Legal Clinic Schiff Hardin & Waite

John M. Carroll Donald S. Hilliker ' Janet Reed Mayer Brown & Platt McDermott Will & Emery Attorney at Law

Stuart Chanen Steven Lubet John P. Ratnaswamy Sachnoff & Weaver Northwestern University School of Law Hopkins & Sutter

Laura Miller Eligator Harvey Nixon J. Samuel Tenenbaum Northwestern Legal Clinic Mayer Brown & Platt Sachnoff & Weaver

Cynthia Wilson Chicgo Lawers' Committee for Civil Rights Under Law

TRIAL PRACTICE I & II INTRODUCTION TO TRAIL ADVOCACY

Robert Chapman Buckley Jonathan Barnard Philip Guentert Assistant States Attorney Attorney at Law, Quincy IL United States Attorneys Office

Philip A. Guentert The Honorable Rubin Castillo Philip C. Parenti United States Attorneys Office United States District Court Attorney at Law

Jonathan D. King The Honorable Margaret O'Mara Zaldwaynaka L. Scott Assistant US. Attorney Frossard United States Attorneys Office Circuit Court of Cook County Susan Walker Cairns & Levin Helene Greenwald United States Attorneys Office

37 News ana Notes D SELEl'TEO l'LIN/l/ {JISES: ti (s'lttltlS) rt1JJOl'I

Juvenile Delinquency

avid B. is the named plaintiff Illinois, denied DCFS 's motion to Steven Drizin in a federal class action vacate in David B. v. Pat/a. DCFS clinical faculty Dbrought by Patrick Murphy has appealed Judge Aspen's decision and the Office of the Public Guardian and the Clinic and the GAL will brief in 1979 against the State Board of and argue the appeal in the spring of Education ("SBE"), the Department 1997. Clinic students Katie Dunn of Children and Family Services and Ronald Ing helped work on the ("DCFS"), and the Department of briefs. Mental Health ("DMH"), alleging that these three state agencies As a result of our involve­ violated Section 504 of the Rehabili­ ment with David B., Judge Julia Q. tation Act and the equal protection Dempsey of the juvenile court has and due process clauses of the appointed Clinic attorneys and law Constitution, by failing to provide students to serve as guardian ad !item treatment and rehabilitative services for many members of the plaintiff to these disabled and delinquent class. Clinic law and social work Clinic students children. students have pooled their talent and are involved in energy together to help secure an appeal of a Because no single state appropriate services for many federal class agency would assume responsibility children. action suit on for these multi-problem youths, these behalf of youth "fell through the cracks" and llen M. was 11-years-old disabled and were often forced to wait for months when he was found delin­ delinquent in the juvenile detention center until quent in the murder of an children. A services were provided. In 1981, the elderly neighbor. He was only 10- DMH, DCFS, and SBE entered into a years-old at the time of the murder. Consent Decree which required them The key piece of evidence against to provide services to the class Allen was an oral statement he members. allegedly made to police during a police interrogation outside of the Between 1981 and 1995, the presence of his parents, an attorney, Governors Youth Service Initiative or a youth officer. ("GYSI"), under the administration of the DCFS, has provided residential There was little corroborative treatment and other services to evidence to suggest that Allen hundred of class members. In 1995, committed the crime and strong DCFS, citing changes in federal and circumstantial evidence to suggest state law, filed a Motion to Vacate the the crime was committed by an older, Consent Decree. The CFJC, together stronger individual. The case also with the Public Guardian's Office raises important issues about effective opposed the DCFS 's motion to assistance of counsel for juveniles vacate. In September 1996, the and whether trial counsel's failure to Honorable Marvin E. Aspen, Chief move to suppress his client's state­ Judge of the United States District ments was ineffective. The Clinic Court for the Northern District of DNews atut Notes 38 did not represent Allen at trial; prior to the time any discovery is however, we are representing him on tendered to defense counsel, and appeal of his finding of delinquency. generally only minutes after counsel is appointed to represent his or her Katie Dunn and Ken Katkin client. After introducing the prior helped Tom Geraghty and Steve transcript, the State rested, asserted Drizin write the appellate briefs. that it had established probable cause, Katie Dunn prepared for oral and argued that the burden shifted to argument of the case and Larry the defense. On defense counsel's Marshall, Bob Burns, and other motion for a directed finding, the Clinic faculty participated in a mock trial court held that the mere intro­ oral argument of Katie. At the last duction of a prior transcript from the minute, the appellate court denied the unrelated, probable cause hearing Clinic's motion to allow Katie to was insufficient to establish probable present oral argument so Steve Drizin cause in the transfer context and substituted for her. granted the defense's motion. The State appealed the trial court's On November 18, 1996, in a decisions in a series of cases. 2 to 1 decision, with a dissent by Justice Warren Wolfson, the appellate The Clinic, the Public court affirmed Allen's finding of Defender's Office, and Gabe Fuentes, delinquency. Clinic student Monica a Clinic alumnus, now working at Vaca assisted Tom Geraghty and Jenner & Block, divided up the Steve Drizin in writing a Petition for appeals and collaborated to defend Rehearing. On December 30, 1996, the trial court's decisions. Clinic the appellate court ordered the State student Tom Snook worked with to respond to the Petition for Rehear­ Steve Drizin and Tom Geraghty on ing. A ruling on the petition is Jose's appeal. In Jose's case, the expected early this year. appellate court affirmed the trial court's decision to reject the finding ose E. was 15-years-old when of probable cause made at the he was charged with aggravated detention hearing and held. that to Jbattery with a firearm in a require the trial court to be bound by gang-related shooting. the earlier finding of probable cause would violate the requirement that The State moved to transfer transfer hearings comport with Jose to the criminal court under the "fundamental fairness." The court, newly enacted presumptive transfer however, found that the trial court Jose E. was 15- laws. Pursuant to this statute, the erred in other rulings in the case, and years-old when State is required only to establish remanded the case to the trial court he was charged "probable cause" that the minor for a new transfer hearing. with aggravated committed the offenses listed in the battery with a petition to shift the burden to the firearm in a defense to demonstrate that the minor gang-related can be rehabilitated within the Disability Rights shooting. juvenile court system.

In a series of cases including aymond C. is a four-year­ Laura Miller Jose's, the State attempted to estab­ old boy who has a neurologi­ faculty attorney lish probable cause simply by R cally-based communication introducing into evidence the delay. At age three, he was evalu­ transcript of the abbreviated probable ated by his local school district to cause afforded juveniles at their determine eligibility for early detention hearings. These hearings childhood special education services. are held within 36 hours of arrest, The school district team found him

39 News amt Notes D to be eligible for services, but, in the communication disorders ignoring the reports of several program pending the outcome of the experts who had worked with hearing process. Raymond, determined that he had a "serious emotional disturbance" barlie F. is a thirteen-year­ rather than a communication disor­ old boy with multiple der. The services proposed by the C disabilities, including school district were inappropriate, attention deficit disorder, obsessive focusing on the alleged emotional compulsive disorder, anxiety disor­ disturbance rather than on his real der, and learning disabilities. When Charlie F. is a problem. he was ten-years-old and in a regular thirteen-year-old fourth grade room, his teacher boy with We reached an agreement with the organized "class meetings," which multiple school district whereby Raymond were apparently designed to allow disabilities, would be placed in a communication students to vent their feelings on including disorders program and, after several various topics. These meetings were attention deficit months, would be reevaluated to see held without the consent or knowl­ disorder, whether the program was appropri­ edge of any parents; indeed, the obsessive ate. If the program was determined teacher ordered the students not to compulsive to be appropriate, the school district discuss the meetings with their disorder, would then change his disability label parents and other outsiders. During anxiety disorder, to communication disordered. these meetings, which were moder­ and learning ated by the teacher, Charlie was often disabilities. Raymond flourished in the communi­ the central topic of discussion. The cation disorders program. At the teacher encouraged the students to meeting held to review his place­ vent their feelings regarding ment, the school district team agreed Charlie's disabilities and the behav­ ... the team with Raymond's mother that iors that were symptomatic of them, members told Raymond was not and had never been allowing each child to take a "turn" his mother that seriously emotionally disturbed. But, ridiculing Charlie. The teacher even Raymond was without any previous notice, the team encouraged the students to explain doing so well members told his mother that and elaborate on their comments. that he was not Raymond was doing so well that he entitled to any was not entitled to any services When Charlie's parents learned of services whatso­ whatsoever and would be discharged these meetings, they confronted the ever and would from the communication disorders principal, who admonished them not be discharged program the following week. The to raise the issue at any school from the only programming the district would meetings. Having no other choice, communication provide was forty minutes of speech Charlie's parents asked the school disorders therapy per week. district to transfer him to a different program the school. Based on these events, the following week. We filed for a due process hearing Legal Clinic brought an action on to challenge the conclusion Charlie's behalf in the United States that Raymond is no longer entitled to District Court, Charlie F v. The be in the communication disorders Board of Education ofSkokie School program and to challenge the failure District 68, alleging discrimination of the school district to notify the against Charlie based on disability, in parent in sufficient time of the violation of the Rehabilitation Act, district's plan to discharge Raymond the Americans with Disabilities Act, from the program. Second year and the United States Constitution. students Katie O'Brien and Jennifer Sultan will be representing Raymond The district court dismissed the and his mother at the hearing. complaint without prejudice, citing a Pursuant to the "stay-put" provision lack of subject matter jurisdiction due of the Individuals with Disabilities Education Act, Raymond will remain

DNews atut Notes 4() to plaintiff's failure to exhaust the by terminating all electricity, water, administrative remedies provided and telephone services for the home. under the Individuals with Disabili­ Liane contacted the Clinic for ties Education Act ("IDEA"). The assistance in obtaining possession of court held that the essence of the the marital home, custody of her _,a case about a allegations was not discrimination, three minor children, child support, child who was but improper special educational and a divorce. Clinic students were ridiculed by his programming, which is covered by successful in obtaining child custody, teacher and the IDEA. possession of the marital home, and a fellow students $1,200.00 per month order for child for being We appealed to the court of appeals, support for the client. Clinic students different-a where Jason Yurasek, a third-year also provided assistance to the Office pure case of law student, argued that this is not a of the State's Attorney in an effort to discrimination. case about inadequate special prosecute Liane's husband for educational programming, but rather violating the order of protection. a case about a child who was ridi­ Clinic student Cathy Birkeland ('97) culed by his teacher and fellow represents the client in the divorce students for being different-a pure case which is in the pre-trial/ Domestic case of discrimination. Although the discovery phase. violence is not court of appeals found that the limited to district court did have subject matter heresa L. suffered years of persons ofa jurisdiction, it affirmed the district physical abuse by her husband certain race, court's conclusion that plaintiff must Tand decided to contact the age, or income exhaust administrative remedies Clinic when her estranged husband status. Neither before going to court. It held that the snatched their 18-month-old son is it limited to "genesis and manifestation of the from outside her home. Clinic acts of sheer problem is educational" and that, students Elizabeth Butler ('97) and physical accordingly, the school district must Terri Brieske ('98) successfully brutality, be given an opportunity to argue that obtained an emergency order of as was it can right the wrong through protection on behalf of Theresa. The evidenced in psychological services, which are order grants Theresa custody of the the cases available through the IDEA adminis­ child in addition to a prohibition served trative procedures. We are in the against her husband from driving or through the process of exhausting the administra­ otherwise being present on the street Family Violence tive procedures. Third year students, were she resides. The argument for Relief Project Jason Yurasek and Christine Kim, emergency relief was difficult to this year. will be representing Charlie and his prove because many of the most parents at the due process hearing. serious incidents of abuse occurred in the distant past. Students had to argue that the recent conduct of the client's husband, which included Domestic Violence following her to public places and waiting outside her home, constituted an emergency requiring the court to iane D.'s case. involves an act without notice to the husband. Zelda Harris upper, middle-class family Despite the issuance of the order of faculty attorney living in an affluent Chicago L protection, the danger to the client suburb. Liane's husband of nine years and her family escalated when began subjecting her to verbal threats Theresa's husband set a fire to the of harm after losing his job last year. Liane represented herself in obtain­ back porch of her home. The ing an emergency order of protection husband was arrested and is being prosecuted for a felony charge of after her husband pushed her during attempted aggravated arson. an argument. Despite the order, Theresa's husband has been released Liane's husband continued his abusive behavior through harassment

41 News and Noles D on bond, after serving approximately one month in the county jail, and is Child Protection awaiting trial. In the meantime, Clinic students are representing Theresa in a divorce from her my Levenson ('97) success husband and are seeking an order for fully argued for the closure of child support that will allow the k juvenile court case involv­ husband's wages to be garnisheed. ing three minors who had been appropriately cared for by our clients im B. is the mother of five Mattie and Herman W. after a year children under the age of of court supervision. Keight. Her case involved intense litigation very early, and The family initially entered Clinic students Michael Fatall ('97) the juvenile court and child welfare and Andrew Kim ('97) worked system when the clients' teenage tirelessly to represent Kim's interests daughter contacted DCFS after a leading to a successful outcome. physical altercation with Mattie and allegations of sexual molestation Kim B. first contacted the Clinic against Herman. DCFS removed all Kim B.flrst Relief never when her abusive husband concealed four children from the home despite contacted the comes as their five children from her after she evidence that the physical altercation Clinic when her quickly as we fled the marital home in Indiana due was isolated and arose out of a abusive would like for to domestic violence and came to dispute concerning the teenager's husband the parents we Chicago. Kim was able to locate her ability to care for her own infant concealed their represent in the husband and children at her in-laws child. Further, the teenager recanted five children child protection home in Chicago. With the assistance the allegations of sexual molestation from her. .. cases in juvenile of the Chicago Police Department, against Herman W. stating that she court, but the Kim regained physical custody of the made the charges because she wanted cases are children prior to the Clinic's court to live outside of her parents' strict rewarding. advocacy on her behalf. household.

Clinic students obtained an emer­ The case proved frustrating gency order of protection, which because it soon became apparent to granted Kim custody of the children DCFS that Mattie and Herman were and denied the husband visitation. appropriate parents and that assis­ Kim's husband hired an attorney and tance could have been provided to the instituted a divorce action against family in their community without Kim challenging her for custody of juvenile court intervention. However, the children despite his uncontested due to court delays and sloppy abuse to Kim during the marriage. casework, once they were in the The Clinic has been successful in system it was difficult to get the arguing that any visitation between family out. the children and their father should be supervised. The divorce proceed­ The case of the Mattie and ing is in the pre-trial phase, and Herman's teenage daughter remains students have gathered many docu­ open and she and her baby are ments in discovery in an effort to currently living with a relative. prove Kim's case of abuse by her Social work student Mary Ann Scali husband. Social work student Sarah was instrumental in keeping in Compton provided invaluable contact with DCFS and other agency assistance to the client who required caseworkers to insure that they did help emolling her children in school, not let the family fall through the day care, and other services in system "cracks" resulting in more Chicago. unnecessary delay.

D News a1UI No/eS 42 Criminal Defense / Death Penalty

eople v. Derrick Hardaway. eople v. Dino Titone. Oral Tom Geraghty One of the major projects argument will be held in late Former Judge clinical faculty P undertaken by the Clinic this PFebruary in the Circuit Court Maloney is now year was the defense of Derrick of Cook County on the issue of serving a Hardaway, a 14 year-old charged, whether Dino Titone is entitled to a sentence in along with his brother Cragg, with hearing on his claim that his convic­ federal prison the murder of a 10 year-old boy, tion was the result of Judge Thomas for engaging in Robert "Yummy" Sandifer. The case Maloney's failed attempt to extort extortion in was tried to a jury in November. Our money from Dino Titone's family in other cases. client was convicted on an account­ return for an acquittal. Former Judge ability theory and awaits sentencing. Maloney is now serving a sentence in Students and faculty worked on this federal prison for engaging in case from the fall of 1994, when the extortion in other cases. At least one incident occurred, through the trial. other Cook County Circuit Court judge has granted a hearing on a eople v. Leroy Orange. The similar post-conviction claim brought llinois Supreme Court has by a defendant convicted by Judge Preversed the dismissal of the Maloney. And in January, the United defendant's post-conviction petition States Supreme Court granted which, among other claims, alleged certiorari in Bracey v. Gramley, a ineffective assistance of counsel at case in which a defendant found sentencing, and has ordered a guilty in a trial presided over by hearing in the trial court to determine Judge Maloney claims that he was whether trial counsel was ineffective entitled to discovery in his habeas when he failed to call any mitigation proceeding regarding the extent of witnesses at our client's death penalty Judge Maloney's corruption. The issue before sentencing. Clinic faculty and the post­ students are in the midst of a hearing eople v. Scott Kinkead. This conviction which will include the testimony of case is now before the Illinois hearing judge is mitigation witnesses who were PSupreme Court on the issue of whether there is available to testify at the original whether the post-conviction hearing a reasonable sentencing hearing but were never judge was corrrect when he ruled that likelihood that called to testify. The issue before the the fact that the defendant was taking Leroy Orange post-conviction hearing judge is Thorazine when he pleaded guilty would not have whether there is a reasonable likeli­ and asked to be sentenced to death been sentenced hood that Leroy Orange would not did not invalidate the guilty plea and to death had have been sentenced to death had sentence. The post-conviction mitigation mitigation witnesses been called to hearing judge made this decision witnesses been testify at his original sentencing after listening to evidence presented called to testify hearing. by the state and by the defense at his sentenc­ regarding the times when thorazine ing hearing. was administered and the amounts of the drugs ingested. Expert witnesses testified concerning the effects of thorazine on cognition and decision making ability.

43 News ana Noter 0 Legal Clinic Donors We extend our appreciation to the following individuals, businesses, and foundations for their generous support of the Legal Clinic during Fiscal Year 1995-96. (September 1, 1995 -August 31, 1996)

Frank M. Adams '94 Kristi L. Browne '87 Cathleen Hainer Albrecht '87 Antony S. Burt '82 James J. '72 and Carol Miller Alfini Geroge P. Cahill '95 Diane Marie Amann '86 Glennia R. Campbell '87 Kristina M. L. Anderson '87 Terence H. Campbell '95 Mary Jean Anderson '89 Annie E. Casey Foundation Wanda Andrews '81 Kelly Cassidy '94 Matthew Arbit '93 Hon. Barbara A. Caulfield '72 Nancy E. Ator '76 Peter M. Chan '91 Ronald D. Babb '72 Warren Chan Ellen M. Babbitt '80 Franklin A. Chanen '57 Thomas J. Bamonte '83 Allen Walter Cherry '77 Amy E. Bauman '94 Chicago Area Foundation - Legal Services Carolyn P. Bayer '85 Chicago Bar Foundation Joseph D. W. Beeler '69 Chicago Community Foundation Bell Boyd & Lloyd The Chicago Community Trust Mary Patricia Benz '78 Susan M. Coler '89 Michael T. Berg '91 Confederate Lawyer-Western Command Jill B. Berkeley '75 Michael J. Condron '95 Felice L. Berkman '93 Timothy R. Conway '80 Laurie J. Biehn '94 Philip A. Coulolias '95 Ivy Berg Bierman '84 Helen Cropper '78 John David Blair-Loy '94 Genevieve M. Daniels '93 John D. Blumenthal '74 Steven K. Davidson '85 Brian R. Boch '95 Michael D. Deal '94 Steven J. and Susan S. Boranian '94 Michael J. Denker '95 Judith A. Borenstein '83 Kathleen P. M. Dewey '79 Alex J. Bourelly '92 Elena M. DeWolfe '95 Phoebe B. '76 and James L. Boyer Michael T. Donovan '94 Braeside Foundation Mason H. Drake '93 Peter A. Braffman '95 Robert A. Dver '84 and Lori Kaplan Jennifer Rachel Breuer '95 Geoffrey I. Edelstein '88 Michael T. Brody Christina M. Egan '95 James R. '68 and Barbara S. Bronner Susan Jenny Ehr '95 Patricia Bronte '87 Jennifer E. Elden '93

DNews anll No/,es 44 Legal Clinic Donors

Larry Engelstein '83 Elisabeth Tyne Jozwiak '95 Elizabeth K. Ester '83 Cynthia A. Kaufman '94 C. Carnot Evans '95 Keck, Mahm & Cate Elizabeth Evans '90 Marilyn Kay Kershner '80 Michael S. Evans '89 Susan Kimmelman '80 Phyllis A. Ewer '82 Thomas J. Kinasz '82 David R. Fine '87 Michael '82 and Shawn O'Keefe Klupchak Ian H. Fisher '94 Penny and Spencer Koppel Susan E. Fisher '77 Janet Marie Koran '78 Carl Flaningam '87 Mark G. Krum '83 Richard H. Forbes '75 Greg Kuykendall '88 Steven H. Frankel '78 Mee Lon Lam '84 Lloyd A. Fry Foundation Arden Lang '82 J. Stuart Garbutt '70 Lawyers Trust Fund of Illinois Paul J. Gaynor '90 Janet Smerling Le Vee '88 Richard M. Gaynor '87 Kathleen A. Leak '85 Catherine K. and Scott L. Gel band '87 Deborah E. Lebold '94 Michele A. Gemskie '94 Derek and Sara Lemke-Von Ammon '83 Mr. and Mrs. Thomas F. Geraghty, Jr. '41 Kathryn A. Lennox '94 Diane L. '72 and Thomas F. Geraghty '69 Mark D. Lerdal '84 Alison E. Gibbs '95 Robert S. Letchinger '82 Margaret R. Gibbs '93 Joshua M. Levin '86 Adam J. Glazer '88 William D. Levinson '84 Jill K. Goldberg Robin Levinson-Wolkoff '90 Joel Martin Goldstein '72 Gary K. Lippman '90 Robert M.Gordon '83 and Alanna Barr David R. Lipson '94 Andrew R. Greene '94 Linda Lipton and M. Steven Lubet Marcia E. Greenberg '84 Mark D. Lipton '75 Karen M. Gutierrez '95 John D. & Catherine T. MacArthur Foundation Arlene R. Haas '90 Lisa Davis Macfarlane '85 Donna Haddad '95 Susanne M. MacIntosh '95 Robert D. Hall, Jr. '74 Eric S. Mattson '94 Dawn M. Hambly '94 John M. Mc Careins Joel L. Handelman Alicia Gittens McCareins '87 Harold B. Hilborn '95 Kevin P. McJessy '95 Stanley A. Hirtle '73 Robert A. McNees '78 Ann E. Hopfenbeck '83 Richard Meltzer '75 Michael J. Huft '95 Stacey S. Michelon '95 Suzanne A. Isaacson '90 Robert J. Miller '85 Gregory D. Isbell '95 Joseph S. Miller '94 Frank W. Jaffe '86 Susan Murphy Mongillo '82

(continued on p. 46)

45 News arut No/eS D Legal Clinic Donors

Marc A. Moyer '95 J. Samuel Tenenbaum '73 Frederic S. Nathan, Jr. '87 Andrew M. Troop '85 Sylvia Markowicz Neil '76 Georgia Vlahos ' 85 Mardell Nereim '82 Gregory J. Vogt '79 David R. Nordwall '93 Andrew D. Wang '94 Kathleen G. O'Donnell '92 Chen Wang '94 Howard R. Orenstein '82 Peter Craig Warman '93 Marian W. Payson '84 James D. Wascher '78 Dale David Pierson '82 Shelley Carthen Watson ' 85 Susan A. Pipal '93 David L. Weinstein '79 Gloria Estelle Pruzan '78 Lynn Nancy Weisberg '93 Terry K. Ray '75 Steven M. Wernikoff '94 Lisa J. Reategui '95 William P. '73 and Judith L. Wilen Thomas J. Rehwaldt '95 John M. Wilke '79 Patricia S. Rim '95 Jennifer L. Wilkerson '83 Michele M. Rivkin '94 Robert E. Williams, III '74 Dahlia M. Ronen '93 Sarah R. Wolff '78 Lorri Staal Rosen '89 Women Voters-Glencoe Scott V. Rozmus '94 Woods Fund of Chicago Randi Ilyse Roth '84 Cynthia J. Woolley '92 Anthony E. Rothschild '83 Frank Z. Yang '95 Galya Ben-Arieh '89 and James Edward Ruffer Larry I. Yellen '77 Peregrine D. Russell-Hunter '89 Scott A. Young '77 Barbara L. Samuels '71 Amy L. Zimmerman '91 Jeffrey W. Sarles '94 Gary L. Schlesinger '70 Matthew J. Schlesinger '89 Schwartz & Freeman Beverlee E. Silva '88 Michael J. Silverman '90 Special mention must be made of two recent Sonnenschien Rosenthal & Nath very generous gifts to the Legal Clinic. Margaret U. Song '93 Ruth B. Sosniak '90 n June of 1996 the law firm of Schwartz Jill Andrews and William D. Sprague '94 and Freeman donated $25,000 to the Clinic David J. Stagman '93 in honor of the 50th anniversary of Arthur Katherine G. Stearns '94 l Freeman's association with the firm. In W. Hughes Stevens January of 1997 Chris Langone and Brian Donald R. Strayhorn '75 Hodes of the firm of Langone and Hodes Sonya Sud '95 arranged for a $20,000 donation to be made Andrea L. Sussman '85 to the Legal Clinic. These gifts were placed in Donald A. Tarkington '83 a Clinic endowment fund. We are profoundly Christina M. Tchen '84 grateful for these gifts.

DNews atut Notes 46 The Legal Clinic's summer baseball tournament against friendly rival, The Mandel Clinic of the University of Chicago, was great fun. Although NU won both games, U. of C. players looked quite stylish in their new, designer, team t-shirts.

U ofC Dick Badger and Randy Schmidt are flanked by NU clinical faculty, John Elson on the left and Bruce Boyer, right

NU Legal Clinic team I. to. r. row 1: A.Freeman, S.Drizin, J.Elson, S.McCambrldge, M.Kravets, M.Hauser row 2: R.Spiegel, M.Mahan& daughter Kate, A.Daker, A.Coin, J.Wong, A.Carretero, J.Klingensmith, S.Kapp row 3: E.Holmberg, R.Conrrad, D.Ford, B.Hays, A.Kim,

Roxanne Spiegel ('97) and Victoria Wei ('96) enjoy the barbeque after the game.

47 News a11il Notes D a final word ......

It can hardly be a surprise that Steve Lubet's not-so-secret ambition has always been to wake up and discover that he's been transformed into a professional humorist. Some people have enjoyed Steve's humor and some have fled from it, but until a few years ago it was pretty much limited to the Jaw school world. Recently, however, Steve managed to expand his comedy horizons. Morning Edition, an award-winning show on National Public Radio (NPR), has run a series of Steve's humorous commentaries on subjects ranging from camping (and why you shouldn't do it) to the warning labels on eye drops (which have been known to "impair the motility of equine sperm'J, Newspapers including The Chicago Tribune, The San Francisco Chronicle, and The Philadelphia Inquirer have featured Steve's humor on their op-ed pages. The following piece is a "special" to !Vmd' andAi!MJ:

LYRICS by Steve Lubet

et's start a movement to establish a new exhibit in Woman is a terrific tune with some choice lines, but it also the Rock n'Roll Hall of *Fame: Really stupid lyrics gave us this ear-jarring* trope: "My love don't bring me L from really great songs. Now, we obviously won't presents/I know that she's no peasant." What? There include simply vapid or meaningless lyrics. Rock music were no peasants in England in 1964. And even if there is filled with those. Face it, with hundreds of songs had been, why would Liverpool's working class heroes recorded every year since-when?- 1954, even most of care? Somehow, I can't quite imagine the Fab Four's the hits are bound to be mediocre. And mediocre songs conversation: are going to have lackluster words. Consider: "Black is black/I want my baby back," or "The kids in Bristol/Are "I 'ere you've got a new girl friend, Ringo." sharp as a thistle." Pedestrian, for sure; maybe even a little dopey. But not famously bad. "Righto, George. And she's not a bloomin' peasant." Nor could there be nominations for incoherent or unfathomable lyrics. Those can be classics, so they don't You can bet they left that one on the cutting meet the standard of being really dumb. You can scratch room floor when they filmed A Hard Days Night. Whiter Shade ofPale, by Procol Harum, or the arche­ types, Louie, Louie, by the Kingsmen and Wooley Bully, But the ultimate entry comes from The King by Sam the Sham. And we could never include any of himself. Who hasn't been All Shook Up, at one time or Bob Dylan's many cryptic masterpieces; my own favorite another since Elvis Presley coined the term? Once you being "it balances on your head like a mattress balances get past that evocative image, though, the rest is pretty on a bottle of wine." hnpenetrable? That's the point. near idiotic: But stupid? Never! "I touch her hand, what a thrill I got/Her lips are like a volcano that's hot/I'm proud to say she's my Finally, the Hall of Fame would have to leave out buttercup." really awful lyrics from basically lousy songs. So the exhibit would have no room for anything like the Turtles' Excuse me? Hot-lipped, volcanic buttercups? inane couplet, "Happy together/how is the weather?" The Don't try to tell me that there's romance written all over song wasn't nearly good enough for anyone to worry that one. And the rest of the lyrics aren't any better. "I'm about the quality of the words. itchin' like a man on a fuzzy tree." "My friends say I'm acting wild as a bug." Those metaphors just don't, well, they just don't shake me up. No, this category calls for truly memorable songs, but with some lyrics so pointless, so forced, that they Please don't get me wrong. I love the Beatles, could only have been inserted in a last-ditch search for a and Elvis will always be "The King" on my CD player. desperate rhyme. To start the ball rolling, I have two But the contrast is too beguiling to ignore: It's got a great nominations. beat, you can dance to it, but don't listen too closely­ especially if you sing along. Yep, the best of the best Amid all of Lennon and McCartney's splendid combined with the dumbest of the dumb. All nominations poetry, one miserable aberration stands out. Shes a are welcome. 'Cause Baby, that's Rock n' Roll.

DNCWS' anti Notes 48