The Journal of The DuPage County Bar Association

Back Issues > Vol. 14 (2001-02)

Panel Discussion
Edward Walsh, Moderator

JUSTICE THOMAS: It is a pleasure to be here at this symposium honoring Roger O’Reilly, one of the great civil litigators of DuPage County and other counties, as well, and a man I think has accurately been described as possessing civility. If you went to the dictionary, his name is next to that. This is really the practical side of the program where questions are really encouraged.

I wanted to start with a little example. We all have war stories. Everybody in this room has a war story: When I was on the circuit bench, I had a pretrial prior to my status call at 9:00 o’clock, and the two attorneys—and I don’t see either one of them here and I’m sure that’s not by coincidence—were particularly contentious and we couldn’t get anywhere and we had to set a briefing schedule on a motion. So I said, you know, 21 days to file your brief and another 14 for your response, 7 for the reply, or whatever it was.

And then those of you who have been in the DuPage County courthouse, you know that there’s a hallway leading from chambers into the courtroom, and as I was going in for the 9:00 o’clock status, my clerk comes up to me and he says, "those two attorneys who left your chambers really have to see you again." And they come up and I said, "Well, I’ve got to take the bench now for the status call." They said, "Well, could we just see you for a second?"

So they walked in through that door, still arguing, and they were holding a torn order. The order was actually ripped in half. And the bone of contention was whether or not the order was going to include the language "21 days" or put the actual date in the order as to what 21 days was.

And as I thought, I didn’t have a long time to think about what I was going to do with this torn order, and I did think about what the worst fear of any lawyer or any judge is, and it really is embarrassment. We don’t like to be embarrassed. And I was particularly taken aback by the lack of civility, not only by what happened in chambers but then the order.

So I did call that case first, and in a crowded courtroom, a packed courtroom, you know, I spoke up and raised my voice and asked my clerk whether we had to stamp both sides of the order, made it very clear to all the people in the courtroom what had happened.

And so the first question I would like to raise is what is the judge’s role regarding incivility in the courtroom? Certainly when you think about a trial, my particular practice would be to take the profit motive out of something that was said to try to give a particular client an advantage and call the attorneys aside and say you had one chance, don’t do it again; and if they did it again, indicate to the jury that that attorney was instructed that what they just did was improper. Take the profit motive out of it.

This question is not just for the attorneys or judges on this panel or the many judges that I see out in the audience, but for the attorneys in the audience, as well. What is the judge’s role? I don’t know everyone in this room, but as I look out at this group, I think we are, in a certain sense, preaching to the choir. I know calls were made to other attorneys to get them interested. I doubt many of those calls were made to hooligans to say come in here and we can talk about how uncivil you are.

That really is a problem, and I think that will be addressed with later questions. But the question for now is what do the attorneys think—attorneys like yourselves who are conscientious enough to be here—what do you think the judge’s role should be? You heard Bob Clifford indicating that he saw a couple of attorneys going at it and commenting to the judge. I mean, is that the answer? So from both the judge’s perspective and the lawyer’s perspective, what should a judge do when attorneys are not practicing professionalism and civility?

MR. CLIFFORD: Let me speak to that a little bit, because I do have some views about the role of the bench in that context. The reason I said what I did to my friend, the judge, listening to this, was that I thought, number one, he should not allow that to take place in his courtroom because it’s on public display.

If I’m right and some of this focus group data is correct, one of the things that is fueling the poor perception of our practice, of our profession, is, indeed, people not admiring or having any respect for what they see us doing. When we have young lawyers engaged in that kind of activity, it is, in my view, up to the court to control the environment. I mean, you know, you guys are in charge. At the end of the day, you are the judges. You are the ones that enter the orders. I can talk all day long about how these two young lawyers are not being properly mentored, if that is part of the problem, or they just got at each other on a bad day. But at the end of the day, it is for the lawyers to work in an atmosphere of decorum that is controlled by the judges. I’ll give you an example, and then I want to come back to one thing. When Judge Don O’Connell, who retired yesterday, took over the law division of the Circuit Court of Cook County, being someone who practiced there all the time, it was amazing the difference in the decorum and atmosphere of the law division and in the assignment room of 2005. Before Judge O’Connell, you go there, people would be walking through doors, lawyers would be in corners doing deals, talking, everybody would be hiding in the back hallway maybe trying to get a whisper to the judge as he is coming out. Who the heck knows what was going on?

I do know what happened when Judge O’Connell came in. There is a sheriff at the door, you don’t go back until you were called, and to this day, that whole atmosphere is different, markedly different. Well, who did that? He did that. And the judges who have followed him did that. Who set that standard for decorum? So I think that is the judge’s responsibility.

The second point: I was asked a question outside and a lawyer said, what do you do with this lawyer who is just so obnoxious in front of you and you wind up getting baited into this discussion about—you know, that leads to contention and leads to a bad atmosphere? And my answer to that is that you seek relief in the court.

You know, I made a remark and it is one that I truly try to practice. I don’t let someone else try to dictate my mind-set. There is a story –I have a story behind everything—but there is a story to that. And a dear friend told me that story many years ago. He said, "Bob, one of the things that made a difference in my life is I’m riding the El, and I see these two down-and-out bums. The guys, they are shabby, they are broke, they are selling Streetwise, complaining to themselves, they smell. And the one guy is just really whining and moaning, and the other guy said to him—and I’ll never forget this—he said, ‘Don’t let those other people dictate your mind-set..’" I pass that along to all of you and you pass it on to someone else.

I think the same is true when you are dealing with that despicable lawyer. Don’t let that person dictate your mind-set. Seek the relief of the court. If you can’t do that, then you know, you have to file proper pleadings. But don’t get into this debate like these two young lawyers that I saw snarling at each other.

But it is for the judges to control the decorum if it is getting out of hand and then whack the lawyers for doing it. And embarrassment is a powerful motivator, I believe.

JUDGE DARRAH: I would like to speak to that. Bob’s comments about preaching to the choir are pretty well taken. The people out here that I know from being on the bench and practicing law, I don’t see anybody here that doesn’t epitomize what we are all here talking about today and certainly what Roger was all about. All the folks that I know here are good lawyers and very ethical, very civil.

I think a trial court judge has an obligation, if I run into a situation with one of you and one of the folks that aren’t here—I’m one of the folks that thinks it’s cheap to conduct yourself in an abrasive fashion –I think we have an absolute obligation to protect the lawyer that is engaging in civility.

I would be curious, Bob, as to what stage of the argument you came in, whether one lawyer started it and the other felt that he or she had to answer in kind. I’ve noticed that over the course of the years, certainly as a practitioner, if you thought that you were being rolled over, then you expect the judge to step up and put the thing back on proper tone. I think really the problem, if you can call it a problem, I think the statistics say that there is certainly a concern about civility. It is really twofold. The established practitioners are not going to be able to really change effectively those folks that are engaged in that kind of destructive conduct, but I think you can keep them in control and I think the judiciary has the ability to do that. I think the second aspect of it is what Neil called for, and that is to begin at the onset, at the beginning of the law school process, perhaps, and certainly shortly thereafter, to continue to reinforce these values that we think are important.

When I teach, I try to work it into a lecture. I teach evidence and civil practice. It’s easy to work into a lecture or over the course of some questions about what shark practices are and how you really don’t want to get into that and good lawyers don’t do that.

So I think it’s really twofold. I think all of you—to a certain extent we are preaching to the choir, but to a certain extent it is sort of gratifying that all these values that we have all tried to adhere to in the course of our careers are important. And maybe you will go forward and spread the word even more to younger lawyers.

AUDIENCE MEMBER: Your Honor, I agree with what you said, but I want to reflect back to something that I was speaking to Judge Aspen about earlier. We can have meetings like this and we can all be very serious about improving the civility in the practice, but it won’t be worth spit in a hot boot if we don’t get to the people who hire us.

The public has a perception of what a good lawyer is. A friend of mine sent me a bunch of lawyer jokes the other day, and I found myself responding vehemently and saying the next time your kid gets picked up for DUI or you are buying a house or your ex-wife is bothering you, you can call your plumber.

MR. CLIFFORD: The rates are higher.

AUDIENCE MEMBER: But people have a perception of what a good lawyer is, because this guy came back to me and said, "Oh, I’ve got a good lawyer. He is mean as a snake, the judges all hate him, but he gets the job done."

JUDGE DARRAH: Can I speak to that? I couldn’t agree with you more. When I first started out here, I began practicing with two of the most ethical people I ever met, and it does begin with the senior people of the firm. It was made very clear to me that we didn’t want to overstate the case; we didn’t want to oversell the case. We wanted to analyze it in our best lawyer-like fashion and tell the clients what they could reasonably expect, and we didn’t want to be put in a position where we were promising the moon. The client should be made aware of our style of practicing the law—that it was going to be a style that was going to be consistent with the mores of this community and what we perceive to be the mores of the practice, and they weren’t going to get any more. I was encouraged to make that clear at the beginning.

Even though I was given a very nice salary, I was given a percentage of anything I brought in, they made it very clear to me that they didn’t want the kind of money that involved me overselling a case or promising a client that I could do something that I should not ethically ever consider doing. I absolutely agree with you.

I think this is part of that sort of formative thing. And if the studies that Marv and all these folks did years ago show that the profit motive of some folks, they think, has eroded civility to a certain extent, that probably is true, particularly with the competitive nature of the downtown practice.

But it is up to those senior people to tell the new associates that is blood money and we are not going to engage in that. You have to analyze the case in a lawyer-like fashion, tell it to the client, and tell the client exactly what demeanor they can expect from you. I absolutely agree.

MR. CLIFFORD: As a follow-up to that, the Texas Lawyer’s Creed which the Texas Supreme Court adopted, that speaks to—it’s an abbreviated version of what Judge Aspen’s 7th Circuit rule now is, but part of the obligation is to give that to the clients so that the client has an expectation. You know, it is like you give a client the copy of the contract. You give a client a copy of what the byword of civility is and scope of it so the client can have some expectation about what to receive from the lawyer. When we start reeducating them -- it is going to have to start with us. It is going to have to start with us on an individualized basis, otherwise it will never change.

This practice of law has become incredibly competitive. Judge Darrah speaks to the downtown competition, and you say things and they flash across your mind. There is lawyer shopping that goes on downtown with cases that I am exposed to or I am on a list of five lawyers that these people are interviewing, and one of the things—they always ask me, they say, well, you know, the lawyer down the street said—he told me what kind of a case it is going to be what he is going to get. What are you going to get for me? I have no idea what I am going to get for you, and if he is so good at that, you should go hire him.

I will never tell somebody up front what I believe the value of the case is because I think that is wrong. What is going to happen is that three years down the line you are going to have to tell him the real story and you are going to have bursting bubbles and it will all be your fault and the profession will be shown in a poor light once again.

That’s the kind of stuff that we have to work against. And, fine, we are preaching to the choir here today, but I think this is the beginning of a movement you are going to see across the nation, because the data that is coming out of this focus group work is that if we don’t do something about the perception of lawyers in America, you will be perceived as plumbers, because they -- my dad was a carpenter and he was very proud to be a carpenter, but he was proud to have his son who worked his tail off to get into law school. That won’t be the perception anymore.

JUSTICE THOMAS: I think the question really brings up what a cooperative effort this is going to take. If you start with whether or not the judge is going to tolerate shenanigans in the courtroom—I mean, first of all, he or she has to not feel threatened by the hardball litigator, if you want to use that term, where it is not an advantage for the person to take that tack and the judge is not intimidated by those tactics. And then it is going to take the lawyer at that end to convince his or her client that we are not dealing with "L.A. Law "or "The Practice" or that type of thing, because that’s the perception. I think one of the things that one of the presenters indicated is that they may not like lawyers, but they like their lawyer. And oftentimes as a judge we do receive calls, you know, from friends and say who practices in this area and who will really "go after them." You know, I mean, that’s the perception. But if "going after them" is conducive to winning your case because that particular judge is going to be intimidated, then it’s hard for the lawyer to say, well, they might employ those tactics; we don’t.

That’s why I think it is a huge cooperative effort that has to take place between bench and bar, and it is an educational process certainly for the client.

MR. WALSH: Justice Thomas, and really the judges on the panel, in response to your question, I think that the judges need to take an active affirmative role as Bob Clifford mentioned in keeping decorum in the courtroom.

What I’ve experienced as a younger lawyer when another lawyer is trying to be aggressive and violate the admonitions of the court is the judges need to give one warning, make the warning very specific, and then if a violation takes place again, the judges have to have the confidence to implement some type of reprimand, whether it is a contempt citation and a fine, and you fellows must know what other alternatives there are.

As a young lawyer, I have seen judges just get steamrolled by certain lawyers, and to my detriment. Having been on the receiving end of that, you never want to be on the giving end of that because you know what it feels like to somebody.

But judges need to control their courtrooms. They have to do it with confidence, and they have to do it right away. That’s my position on that. I’d like to hear what the judge -- the trial judges, the three of you, what your position is on that.

JUDGE ASPEN: Let me comment on that. Obviously the judge has to take control. I’d like to think that I run a very tight courtroom in that I do take control. I think Bob and Neil would probably tell you that I have a reputation. But I’m going to tell you another thing: I’ve been on the bench for 30 years. I’ve never owned a gavel, I’ve never held anyone in contempt. Yet I think I have a reputation as running a very strict, formal, all-business courtroom.

The judge sets the tone by the judge’s conduct in the courtroom and how the judge reacts to things that are not proper in the courtroom. You don’t have to do it by holding someone in contempt, and you don’t have to do it by overly embarrassing the lawyer. You can let the lawyer embarrass himself or herself.

Let me give you a concrete example. I’ve done this on a couple occasions: You’ve got a jury trial. In our court, it’s often a multi-party case where you’ve got your jurors, perhaps a criminal case may have as many as 18 jurors, 12 jurors and 6 alternates. You’ve got seven or eight defendants. You’ve got another 15 lawyers in the courtroom. You’ve got witnesses. When I say my court starts at 9:30, I mean it starts at 9:30. We take care of the pretrial matters, the housekeeping matters, the emergency matters are all before that. At 9:30, I walk out the door.

I don’t ask the staff, "will you go out and see if everybody is ready," because the culture in my courtroom is that when I say the case starts at 9:30, I’m there. And I can establish that culture because I really am there. I don’t wander in at 20 to 10:00 or a quarter to 10:00. They know I am there at 9:30.

So I walk out at 9:30. And a lawyer doesn’t appear—he walks in 10 minutes later. Obviously I cannot start a trial with a defendant’s lawyer not there. I just sit very quietly on the bench and I say, "Excuse me, ladies and gentleman of the jury" -- the jury is brought in at 9:30, by the way. I will say, "Excuse me, ladies and gentlemen of the jury. We are going to start in a few minutes."

And so I sit there and do some writing or reading and the jurors sit there and have their hands folded. This lawyer walks in at a quarter to 10:00, and I say, "Good morning, Counsel. Ladies and gentlemen of the jury, we will now begin," in that tone of voice. No scolding. That lawyer is never late again. That lawyer is there at 9:15 the next morning. It’s simply by setting the tone of the courtroom.

Now, it’s easy for Jack and me to do the things we want to do and establish the kind of decorum in our courtroom. I think it’s not typical as a state court judge. As a former state court judge, I will tell you why:

I don’t think I conducted myself any differently as a state court judge than I do now. That’s my nature. But a state court judge that has to worry about election, retention, the misapprehension that if—that you better be careful, you’re going to tee off a lawyer from this 400-person law firm, by not being firm with that lawyer when you ought to be firm because somewhere down the line there is going to be a bar review for a retention ballot. All of those little things make it, I think, much more difficult for a judge in the state court system, at least in Cook County. I don’t know enough about DuPage County to make any generalizations here. But certainly for Cook County, to do the right thing all the way—and that’s where, I think you said it before, Bob, that it’s really a cooperative effort between the bench and the bar, because the bar has to let that judge know that, look, this is the way we want you to perform; that we don’t want you to be a nice guy because being a nice guy all the time means that then the judge is concerned about being loved rather than respected.

I always tell my colleagues when we talk about this, look, if you want love, you got your family, you got your wife, you got your dog. Don’t worry about it. Just go through your profession being respected, and perhaps love will follow after that.

But the judge who seeks to be liked by everyone is going to be an indecisive judge and is going to be a judge who is not going to do the right thing, the thing that you want the judge to do when the judge has to take charge of the courtroom.

JUDGE DARRAH: I would agree with everything Marv said. I’ve had one year in this new job, and the fact of a lifetime appointment sort of dawns on you in stages, but it does relieve a certain amount of the pressure of having to stand for retention. I also would add that the judiciary has an equal obligation in the area of preparation and self-control, too. I say that recognizing the limitations I’ve had in the past. But I think that preparation is the essence of the practice of law, and I think preparation is the essence of being a judge. When you are prepared and you are knowledgeable about what is going on in the courtroom, about the motion call, the trial, you are much more in control.

I think if a judge is prepared in state court or federal court—perceives the authority the job just inherently gives you—that keeping control in the courtroom really should not be a problem at all, particularly if, as Judge Aspen said, you disabuse yourself that you are trying to curry favor or popularity with folks. I have been at this going on 15 years now. I’ve never held anyone in contempt. I don’t think you have to do that. I’ve had somebody who was late for a court walk into the courtroom where the jury has been sitting waiting 10 or 15 minutes. My experience has been the same. They were there very early from then on.

JUSTICE THOMAS: I think one of the things that Judge Aspen talked about—not using the gavel and never holding anyone in contempt—in my six years on the bench that’s the case, and Jack was indicating, as well, that that is his case; and I would hope that the people who practiced in front of us would think that we had order in the courtroom, as well. You know, when a state trooper comes up to your window because you were speeding on I-88, he doesn’t come up and start stomping his feet and saying why were you speeding? Really, authority comes from position.

When you sit in the position of a judge over a trial—in fact, personally, I mean those who have practiced in front of me, that was a new experience for most people, walking into a courtroom, and I tried to inject humor where I felt appropriate during the proceedings. But in thinking back over those six years, I think that the attorneys, whether it be a status call, a motion call, or a trial, knew when it was time to get serious.

As I was listening to this, although we are preaching to the choir, I think—in fact, I maybe even have heard a few people comment on this. I think we could all close our eyes, couldn’t we, and think about that one time, when these judges keep calling us the choir, the panel keeps calling us the choir, If they had seen me on November 5 two years ago when I had this guy by the throat, maybe I wasn’t in the choir on that particular day.

The reason I bring that up is that everybody makes mistakes. And that’s why it is so important when we talk about reputation and the reputation of attorneys and the reputation of individuals, and when that person approaches the bench after you just talked to two or three of your colleagues and know that every time he approaches any bench he is cantankerous, that’s important.

I think at certain instances, you have to give the guy the benefit of the doubt, too. In a sense, that’s why in the example that I gave, before issuing some type of sanctions, before embarrassing the person by what you do, you know, you call them over and say that’s not going to be tolerated. Then I think that’s fair game. If they do it again, you know, I think then a judge does have to take control of the situation. Typically they don’t do it again because the profit motive has been taken out of it. But occasionally they do. I mean, I don’t know why they do. Maybe it goes back to your question, because they have a client sitting in the back of the room, who thinks that the attorney is Al Pacino and he has to wrangle or whatever. Then you do have to step in as a judge and you do have to take it up.

Why do you have to take that type of action? Why can’t you just let it all go? Well, you are the keeper of the gate, aren’t you, as the judge? You are the keeper of the gate. The fact is, it reaches a point where it isn’t fair to the attorney who is taking the abuse, it isn’t fair to the client, most importantly, for the attorney who is taking the abuse, and you really have to move forward for them.

JUDGE DARRAH: Can I ask a question of the other judges here, and I’m curious to see what Neil and Bob think: I heard an awful lot of bench trials when I was in the chancery courts out in DuPage, some very, very complicated cases. I heard some really great lawyers come into an area that really wasn’t familiar to them and do a great job. Judge Aspen in his comment said that civility and courtesy makes practical sense, and I agree with that; that in a close situation, someone that has a reputation for being civil and generally polite, it is just human nature just to listen to that person a little more carefully. I wonder if you also agree that -- in my experience, the best lawyers I saw, the most prepared, the most decisive, the toughest lawyers in many regards were the most civil and the most courteous. I mean, we talk about Roger, and he epitomized that. When someone is extremely courteous, deferential, they almost psychologically have a leg up in the area of persuasion, at least when I’m making the call. I don’t know what your reaction to that would be.

JUDGE ASPEN: I certainly would agree. Your credibility is on the line whether the judge really—as I said before, whether the judge really thinks consciously, gee whiz, Bob Clifford is a good lawyer, he is a sharp shooter, and this other guy next to me, you know, he throws curves all the time; therefore, ergo, I’m going to give Clifford the close call. It’s not like that. I think it’s really an automatic, almost unconscious thing.

When you are dealing with people who have reputations, you do listen to them a little more carefully, and there are times—you know, a judge does not have a law clerk researching every point. They are at a trial, and you are making evidentiary decisions by the split second. You hope you are right, and you hope you had the opportunity to be prepared. You can’t be prepared for everything, and you can’t recess the trial to have your law clerk look up the law or to hear arguments on that particular point of law. You’ve got to move the trial along. And it seems to me that on some of those close calls, it’s common sense that a person who has credibility is going to get most of those close calls.

I would like to add one footnote to our discussion. We really have been focusing, and it’s proper to focus on what happens in the courtroom and the respective roles of the judge and lawyer, but let me tell you that at least in civil cases, I have found that most of the friction and the problems occur prior to trial in the motion stage, in the discovery stage, and that what we see in the courtroom is just the tip of the iceberg.

There are a lot of times when the judge really is not aware of some of the things that are going on in the course of the litigation, and there are a lot of times when really it is appropriate to let the judge know in a very proper way, not an ex parte communication, but, you know, in a motion served to the other side that, hey, look, I cannot represent my client; I cannot get this document from the other side because the answer to my discovery is that, yes, here it is, there are three cartons of documents and it’s in there, when you really could have had someone in your chambers pick it out and give it to them; or you’ve proposed 17 dates for a deposition, and the response is, I’m sorry, none of them are available, instead of responding, well, look, these are the dates when my person is available. All those things, that interaction, that lack of professionalism, in most instances will not get before the trial judge.

Let me just add one other point: I could not let this afternoon conclude without commenting on something that Neil Quinn said in regard to Monroe Freedman. Monroe Freedman is an academic nay-sayer, and that is how—I know him well, he is a charming fellow, a little bit of curmudgeon. I have debated him on panels. One of the things that Monroe Freedman says, and Neil paraphrased it, is that you cannot be a zealous advocate if you pay any attention to professionalism and civility, or he’s put it another way, and this is almost a quote from him, the duty to represent a client zealously is paramount when it conflicts with any obligations of professionalism to the administration of justice. That is not a quote, it’s a paraphrase, but that is pretty much on the mark.

That false dilemma of the trial lawyer has been answered many, many times by many, many courts. Let me give you just a two-sentence response of one court. You find this throughout the cases. This is the 11th Circuit opinion, very recently. This is what the 11th Circuit had to say: "All attorneys as officers of the court owe duties of complete candor and primary loyalty to the court before which they practice. An attorney’s duty to a client can never outweigh his or her responsibility to see that our system of justice functions smoothly. This concept is as old as common law jurisprudence itself." In other words, we are professionals; we are not mouthpieces.

MR. CLIFFORD: I think from my perspective, one of the things that Judge Darrah spoke of, as well as Judge Aspen, in terms of the exercise of discretion, the young men and women in our office that we mentor in our trial advocacy training, we speak to this issue of earning credibility. And you earn credibility by preparation. You persuade with facts, you give ground where you need to give ground, but I think very importantly, you develop a reputation for being credible, for being prepared, for being frank with the court and not sitting on a case that you know is directly against you that you have an affirmative duty to talk about.

When a judge has to exercise his or her discretion on a point, who do you think it’s going to go to, Lawyer A who has a high regard in the eyes of the court for preparation, candor, legal accuracy, and competency, or Lawyer B who always spins things and always is seeking the edge and maybe doing it unfairly. And I say, of course, the lawyer who has the credibility.

In other words it’s our duty and what we are not doing as lawyers—and this is coming out of the focus group results—we are not conveying that message adequately to the community, because the community needs to know that we are better lawyers because we are prepared and because we don’t think this is nuclear war, and that translates into results for them in a very meaningful way. And it is our job to continue to speak to that message.

By the way, I would think it would be kind of fun to whack that gavel around a little bit.

JUDGE ASPEN: In the movies they do it all the time.

JUSTICE THOMAS: I want to reiterate something that I think Judge Aspen touched on because it was a concern of mine, too. The fact that when we talk of character, when we talk about integrity, when we talk about reputation, it is something that –I don’t want anybody to leave thinking, well, I made that mistake 20 years ago, 25 years ago, and now I go before that judge and every motion is a loser. That isn’t the case.

I think what we have been saying is that whether you are dealing with someone being disingenuous –and again it is war story time. I had a relatively simple slip-and-fall case –I hate to even say that because it certainly was important to the clients involved—go back into chambers and argue a motion. This attorney says, "Judge, I want you to read these three cases on this motion. It’s black letter law." I said, "Counsel, I looked at those cases. Can you show me in there where it says what you just said?" He said, "Well, if you read them..."


JUDGE ASPEN: Let me give the other side of the story, Bob. It is not only a negative when a lawyer does something disingenuous—cites a case for something that doesn’t exist, misstates the facts—but it is really a positive when a lawyer is forthright and really says something that may seem in the short run not to be in the interest of that person’s client. I will give you a very concrete example that occurred yesterday: In our court, the chief judge handles all the grand jury matters, and I had a matter before me in which a major law firm was representing a witness before the grand jury. The U.S. Attorney was attempting to disqualify that law firm saying that there was a conflict of interest because that witness—because that law firm represents other people that may be a target in this matter, and that this witness has to get another lawyer.

That law firm found an independent lawyer to counsel that witness on the sole question of waiver. That witness wanted to waive any conflict of interest, and this lawyer came in in this hearing, which was all ex parte, and said that I have counseled this witness on all the ramifications of representation by this law firm. She knows all the facts, and she has knowingly decided to exercise her right to waive any conflict, and I would be happy to give you in camera all the questions and answers. That’s fine. And then I heard the argument on waiver from the law firm before. I turned to this lawyer and I said –I knew the answer to the question, but I said to him, "Well, let’s assume that your client has exercised a valid waiver. Is that the end of it? Do I have to accept the waiver?" And he didn’t blink. He said, "Of course not, Judge." He said, "It’s your discretion as to whether or not to accept the witness’s waiver."

Now, I didn’t hear anything from that major law firm as to whether or not—the issues that they presented to me stopped the waiver, that if this client waives the conflict, no problem, Judge, we are not disqualified. Contrast that with this other lawyer. He went one step further and gave me the information that I needed that the other firm should have given me, as well; that, yes, there is a waiver, but under the law, at least in the 7th Circuit, the judge has to look at facts A, B, C, D, and E and see whether the judge will accept that waiver. That lawyer obviously went up a few notches in my perception of that lawyer’s credibility. So it works both ways. It’s not always a negative. It’s really very positive in terms of review before the court if you act professional.

JUDGE DARRAH: I have a comment. Now that Bob is on the Supreme Court, maybe he can research this and find out if this is anecdotal or whether this is a true story: Legend has it that Abraham Lincoln was arguing two cases before the Illinois Supreme Court and he had opposite sides of the same issue presented in each case. And the Chief Justice said to him, "Surely, Mr. Lincoln, you don’t expect to win both of these," and he said, "No, but I don’t expect to lose them both, either."


JUSTICE THOMAS: To me, thinking back, it’s been—my last year on the circuit bench was 1994, but there are recollections. There is what we know—as Judge Aspen said, what happens in the courtroom—and then what we don’t know behind the scenes unless it is brought to us by the attorney. One hybrid situation that I had that really, I think, shows what a big problem this is was a significant injury case. The defense, about to put on their case, said Judge, I have a videotape of the plaintiff, you know, kind of a day in the life of the plaintiff to show that the injury was not as significant as the plaintiff’s attorney would have you believe. The plaintiff had asked, of course, in a notice to produce for all the videotapes, all the recordings, and brought that to the attention of the court in chambers, to which defense counsel said, "I had it in my briefcase the entire time. He never asked me if I had it in my briefcase." He never turned over the videotape.

That’s how big a problem I think it’s become. I mean, where people of like minds sitting in this room can say, you know, that not only is the letter of the—or the spirit of the rule but even the letter of the rules are being really shod upon, we –I would like to get back to, I don’t know how that saying goes, it isn’t worth the spit in a boot? Is that what you said?

AUDIENCE MEMBER: Spit in a hot boot.

JUSTICE THOMAS: I knew it was something like that.

AUDIENCE MEMBER: Actually, another word precedes boot.

AUDIENCE MEMBER: I would like to ask a question. I would like the panel to talk for a minute, if you could. We have, what, about 75,000, 78,000 lawyers in the State of Illinois. What is the responsibility of the law schools who keep churning and churning out young lawyers, and how does that affect the financial aspects of this incivility, because this is what is going on.

JUSTICE THOMAS: I think that is a great question. I think the question really becomes, why everybody is here, how do we make what we are talking about the norm? How do we make it the norm, because it certainly isn’t now. In fact, Bob Clifford said what we are talking about here is lost on the young folks. I wrote that down. He said it is lost on the young folks. He said the key is law school, and I happen to think he’s right.

I have a friend who coaches Little League baseball in Georgia, and he was telling me—anybody here go watch their kids play? I mean, is there incivility on the sidelines or in the stands? I mean, it isn’t just lost on lawyers. I mean, I think that the law is a microcosm of what has happened everywhere else, and it probably does have something to do with this generation and the youth and what have you.

What he did was he sent out a letter to all the parents and kind of made it sound like none of those parents were at fault when, of course, they were at fault. He said keep an eye on your neighbor because this isn’t going to be tolerated. And it created this peer pressure in which every time one of the parents would start to yell inappropriately and start yelling little Johnny is a moron who can’t play and little Johnny is 10 years old, you know, the other parents would all gaze at him and the guy would stop because he had peer pressure.

I really think the law schools are the key. I’m not so sure, Neil, that the peer review would work, and I’ll tell you why: I’m liaison to the conference of chief judges. There are a number of judges here. You know what we’ve been talking about? There is a program, not a mandatory program, by the Illinois Supreme Court for judges who aren’t civil, basically. And you know who attends? The same type of people that are attending here. And the program really is going way downhill to the point of something has to be done. Do you make it mandatory, in which case, in fact, most of the chief judges would say don’t make it mandatory, because if you make it mandatory, now you are just going to get some grizzly old veteran judge who has had these problems for years that is just going to sit there and he is not going to get anything out of it. But by the same token, people aren’t going. I mean, it’s the second time through the state and some circuits will have one judge, you know, attend or sign up for this particular program.

I am not so sure the old people like us are the answer. I think it is the young people. We could think out loud for a long time. Maybe a Supreme Court committee to study civility. Maybe eventually getting to the Board of Admissions where you have to attend—if you are one of the law schools in this state, you have to attend a civility seminar with people like the people on this panel attending.

I think that has to become the answer because it has to become the norm. That is the only way—because you are not going to have every leader of every firm like Bob Clifford who says, hey, I am going to mentor these people to be civil. A lot of them are—you know, they hire a lot of them—Bob, wouldn’t you say that maybe that is the exception to the rule, that a lot of people are more concerned with the dollar and they are not going to take the time to do the mentoring? And wouldn’t it be easier if they came out already with that approach?

MR. CLIFFORD: I think it would be. I believe that this translates into service to your client and results to your client. It is just like—I don’t want to get too far off the mark. It is just like CLE. CLE in my office is mandatory. You have to take 20 hours of CLE a year to work for me. We do not have mandatory CLE in Illinois. There are people who are radically against it, which shocked me when I started getting into the issue a little bit. I believe that these are the things we need to do to grow as individuals and professionals to deliver better service to our clients and to make them think better of us for doing it, and there needs to be more of that.

AUDIENCE MEMBER: I know what almost, but not quite, makes me crazy with regard to a certain issue with regard to the trial court. I have something that almost makes me as crazy with regard to a particular type of motion, and I’m wondering if at the federal level, at the state level, and at the trial bar level, what your experience is as to the type of matter before the court that seems to make lawyers crazy and act less civilly than in any other area?

AUDIENCE MEMBER: For me it is Rule 213.MR. WALSH: I guess the question is, is there any central issue or procedure from the trial judge’s perspective that seems to ignite incivility?

JUDGE DARRAH: I would say discovery.

JUDGE ASPEN: I would agree with that. It’s discovery. You know, I will tell you something else maybe some of you are going to find hard to believe, but there is far more civility in the criminal side than in the civil side. For the most part, the U.S. Attorney’s office—I’m talking about experience with federal courts. For the most part, the U.S. Attorney and the federal defender and the private bar that practice on the defense side get along exceptionally well professionally. From my perspective there are more problems in the civil side, and certainly full compliance with discovery --

JUDGE DARRAH: That’s my experience, also.


MR. CLIFFORD: Are we talking about what gets lawyers—what we think starts incivility from a judge’s perspective? Is that the question? I think when you think you have been treated unfairly. I was in court yesterday, and you know, and I have a judge friend in Chicago who says some days you are the bug and some days you are the windshield. Yesterday I was the bug, and I didn’t like it. What I didn’t like is that I didn’t think that the result came about for the right reasons. If we are going to lose, lose; but lose for the right reasons. I didn’t think that happened. That’s what gets me going to the point where I got testy and I had to turn down my volume by design. I had to remember that I am on this program tomorrow. I didn’t want be in contempt of court somewhere saying, "by the way..."

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