Monday, October 31, 2011

Halloweens past linger on in Curmudgeon's basement

Does that title sound like it might be the set-up for a ghost story? Or, worse, some horror story about kids found with eggs on their persons whilst on the old, scary guy's premises, intent on holiday mischief, but who wound up chained in the basement of the old, scary guy's house until first the eggs and then the persons rotted away?

If so, I'm sorry to disappoint you. Although, I must add, if she thought she could have gotten away with it, Long Suffering Spouse would have been sorely tempted a few years back to chain certain miscreants in a deep, dark, dank dungeon: Because we live in the neighborhood where my wife teaches, and because we had a flock of kids ourselves, the location of our home was too well known. For several consecutive years our house was egged annually on or around All Hallows Eve. Thankfully, we have been spared these attacks in the last few years.

By my mind is cast back further, this morning, to a happier time, when our kids were little enough to go trick-or-treating.

Long Suffering Spouse found a pattern for dinosaur costumes one Halloween and made two, one for Older Daughter and the other for Oldest Son. These were used for many years, by each child in turn. Later, store-bought costumes were preferred. Some of these did not last the holiday for which they were purchased. But Long Suffering Spouse found Star Trek Next Generation uniforms somewhere which were durable. At various stops along the line we picked up Civil War forage hats or kepis. Long Suffering Spouse made a general's uniform for Oldest Son for some school function; she even sewed on replica shoulder insignia. U.S. Grant was, thereafter, a frequent Halloween visitor. And there were cowboy hats that my parents picked up on trips. Somehow we acquired a pretty good vampire cape. The Conquistador helmet was only thin plastic, but it looked surprisingly good and lasted a lot longer than we thought it would.

All of these treasures, and several more besides, wound up in a toy box in our basement. Back in the day, the kids did not wait until Halloween to explore its contents. When Middle Son's Webelo (Cub Scout) den met at our house, the boys would often plunder the contents of the box. When they'd start dueling too vigorously with the (plastic) Star Wars light sabres, Long Suffering Spouse or I would have to intervene.

Yesterday, Long Suffering Spouse was looking for the large bowl we use for trick-or-treaters. She was looking in the closet in the basement and I told her she was looking in the wrong place. The bowl, I was sure, was on the other side of the basement, on a shelf between the furnace and the fuse box. But why should Long Suffering Spouse listen to me? I was the guy who, earlier in the morning, couldn't find the hot dogs in the freezer when she told me exactly where to look.

So she didn't find the bowl (believe it or not -- and you have to because this is my blog -- it was right where I said it was). But she did find the toy box. And the costumes, and the memories, are still there.

The spam storm continues unabated here at Second Effort. The Blogger detection system is working a little better and the comment moderation on older posts helps enormously. I like to think of this as a good thing -- if I can command the attention of spammers, perhaps I may yet command the attention of actual readers. Time will tell. Meanwhile, don't let moderation deter you from leaving a real comment on any post you want.

Thursday, October 27, 2011

Curmudgeon goes back to school

For the week anyway.

I've been tied up in a seminar all week -- something that may allow me to increase my business. I'd rather not say what sort of training I'm receiving.

But it's been a looooong week, especially when I've touched base at the Undisclosed Location before and after each day's session. Tonight I was in the office just long enough to cleverly leave my homework on my desk.

Yes, I have homework. Just like when I was in school for real.

And I didn't get it done tonight. Just like when... well... you won't tell my kids will you?

Thursday, October 20, 2011

Parent-teacher conferences, now -- and then

Long Suffering Spouse will be working late tonight. She has parent-teacher conferences starting after lunch and continuing until 9:00pm. No appointments are necessary. My wife is not expecting that a lot of parents will be coming to see her, in particular, but the math teacher is next door and my wife is sure to get a lot of her overflow crowd.

We didn't have parent-teacher conferences when I was a boy. We had report cards every so often -- but if further contact were required, it was because someone was in big trouble. And that someone was always the student.

I was in a Chicago Catholic grammar school through the sixth grade. This was in the days when the Catholic schools were pretty well chock full of nuns; a lay teacher was a rarity. Sociologist and popular author Fr. Andrew Greeley sometimes referred, in his fiction, to the parish in which I spent my youngest years as "St. Praxides." I think that's how he spelled it, although the closest name in the actual Litany of the Saints is probably St. Praxedes. Fr. Greeley actually functioned as an assistant in my parish in the late 1950s; one of the most minor accomplishments of his distinguished career is that he baptized me. But Fr. Greeley's St. Praxides was a troubled place. The hostility toward the South Side that emerged in his later books was understandable: the West Side Irish (which he was) and the South Side Irish did not always get along. John R. Powers' books about "Seven Holy Tombs" (a reference to all the cemeteries along 111th Street) were more or less about St. Christina's, not the parish in which I was born, but those familiar with The Last Catholic in America, etc. will know a lot more about the culture I remember from my childhood than those who have read only Fr. Greeley.

In that culture, whatever Sister said was Law. If Sister said I misbehaved, I'd get clobbered at school. If I complained to my mother, she'd clobber me too, just for upsetting Sister. If, on some rare occasion, my mother thought that, perhaps, I might have been unjustly accused, she'd still lay into me -- "That's for a time you got away with something then," she'd say. Or, "Offer it up." The debits and credits of heavenly accounting were, and remain, a Mystery to me. But, apparently, one's unfair suffering today could be applied to reduce the just punishments we'd earned from real sins at other times. My mother was just cutting my eventual sentence in Purgatory. Besides, in all fairness, most of the time I got in trouble at school, I was entirely at fault.

Tonight, my wife will meet her students' parents and say mostly positive and supportive things about the children's progress and potential. I don't even know why the schools have these conferences any more. The parents already know the kids' grades because my wife's gradebook is online. Tonight is not a social occasion -- my wife is dreading it -- but, if the conversation is forced or awkward, none of my wife's meetings tonight will be as awful as the one that concerned yours truly, some 44 years ago.

I was in the fifth grade. The fifth and sixth grades had recess together in the morning. One morning, for some reason, the sixth graders refused to immediately line up to return to class when the bell rang. I have no idea why the sixth graders staged this impromptu sit-in (which probably lasted a minute and a half... or less). Maybe it was just because it was 1967; revolution was in the air. Still, as I recall it, I and my classmates lined up in good order when the bell rang. We'd not done anything wrong. Nevertheless, because we were there, our class was also punished. We were ordered to write "I will get in line and return to class quietly when the bell rings" 100 times.

I chose not to do the assignment. Showing all the flair and passion that would later make me an abject failure as a lawyer, I instead used most of my time to prepare a brief demonstrating that the sixth graders were entirely at fault and the punishment meted out to us fifth graders was entirely unjust. Not satisfied with these efforts, moreover, I decided to add a personal note expressing my outrage at this treatment. Naturally, when speaking on my own behalf, and not on behalf of my peers (as their entirely undesignated spokesman) I felt no need for any rhetorical restraint. I signed my name and everything. (I wonder, now, if I put "JMJ" on the top of the first page of either document. The initials stood for Jesus, Mary, and Joseph, and were pretty much required on every paper we submitted in those years.)

Looking back, signing my name was not particularly brave: After all, by process of elimination, the identity of the malcontent would have been readily determined. But I certainly eliminated any need for lengthy investigation.

I was dragged by my ear to the principal's office. There it was determined that this transgression was so horrible, so outrageous, that my parents would have to come to school and show cause, if any, why I should be retained as a student. Notice the use of the word "parents." Most of your run-of-the-mill felonies could be handled by calling a kid's mother. This, however, was so awful, so contemptible, that my father would have to brought in as well.

As near as I can recall, this marked the one and only one occasion where my father actually entered a school building for or because of me. I grew up in the age of Paternal Aloofness. Fathers worked. Mothers handled the domestic scene. Fathers left early in the morning and came home at dinner time. Then they did whatever they wanted. Or whatever they had to do. My father was a lawyer. But he used to teach the real estate licensing course at night to pick up a little extra money. Whether fathers were home at night or not, kids generally stayed out of their way. If a father was obliged -- forced -- to enter into the domestic sphere, it amounted to a disruption of the Order of Nature.

I remember nothing of the rest of that terrible day until the evening. I remember sitting in the living room of my parents' home that night awaiting their return.

I was imagining the savage reprisals that would be inflicted on my person because I had caused my father to be summoned to school. I fully expected to die. I had even begun to imagine that death might be a blessed relief.

Then my parents returned.

My mother must have rushed past me. Clearly, I was no longer her concern.

My father sat in one of the living room chairs. It was become the Throne of Judgment, I thought. I braced myself.

"So," he said, rather wearily, now that I think of it, "I understand you've been doing some writing...."

He never raised his hand to me. But he sounded so disappointed. It was the severest punishment possible -- and one I did not, and could not, have anticipated. To this day, I still wish he had just gotten angry and given me what for.

The rest of my penance was fairly light, at least when compared to my imaginings: Instead of writing the sentence 100 times, I was required to write it 500 times. I did... more or less. I know I wrote it, as directed, well over 100 times. But I also edited the sentence, slightly, shortening it. The sum of the assigned sentences and the shortened sentences equaled 500 and the nuns decided I was back in their good graces. More or less.

Tuesday, October 18, 2011

Post No. 1500: Not yet an overnight sensation

According to the Blogger counter, this is post no. 1500 on Second Effort. Technically, this might even be considered no. 1501: Back in 2007, I chose to delete a published post at the request of an individual named therein. I believe -- mind you -- that I was entirely within my rights; the individual was originally named in published court opinions from which I had quoted. But there was no compelling reason to leave the post up. The piece in question was supposed to have been humorous. I don't know whether anyone else found it funny, but that man did not. There was no reason for me to be a jerk about it.

So let's just call this post no. 1500. I wanted to do something special for the occasion -- but all my drafts came out needy or whiny or unusually self-indulgent. Even by my standards.

On the other hand, a great many of these 1500 posts have sounded needy or whiny or self-indulgent... so another post along these lines would be, in its own unfortunate way, appropriate.

Most of the posts on Second Effort have been substantially original. I'm proud of this. I republish comic strips or link to news stories from time to time, and sometimes quote more from news accounts than the Associated Press might like, but I think I've been pretty good about providing appropriate links and attribution. And I've tried to add something original, even on posts where I've used material created by others, whether because of the combination of things cribbed or because of the content I've added.

I've noticed, in my years out here in the Blogosphere, that blogs that focus on very specific topics tend to do better than blogs (like this one) that wander aimlessly among multiple, unrelated topics. I don't mean a blogger can write obsessively about her love of puppies or kittens and find a big audience -- but the dog breeder who has some expertise to share will probably develop a following. The person who posts a picture of a different kitten every day may find an audience, too. Writing incessantly about certain political topics should also develop a following... if only with the FBI or other law enforcement agencies.

I've also noticed a lot of self-revelatory or confessional blogs out here in the Blogosphere. I don't mean Post Secret; that's an ingenious (and wildly successful) single-topic blog, that topic being other people's confessions. I refer instead to the many deeply personal blogs that seem to come and go around here. Some of these are raw and screechy, but many have been eloquent, heart-felt, compelling -- and almost always short-lived. The blogger finally decides to leave her husband. The blogger recovers from a terrible disease. The blogger quits his or her job. I remember someone saying once that we -- all of us -- have one good book inside of us. Most people don't have another. Circumstances change. The person who couldn't start the day without venting on the keyboard eventually moves on.

But not me. Not yet, anyway. I'm still here, mostly trying to be funny, sometimes trying to be serious. Sadly, I get the most laughs from posts I meant to be serious. *Sigh*

There is an old rule of show business that no one is an overnight sensation. What seems like overnight success is usually the product of long labors in obscurity, honing one's craft. (The person who formulated this rule probably never heard of Justin Bieber.) So I remain here... honing away... thankful for those who stop by. But, c'mon, in this age of social networking and six degrees of Kevin Bacon, doesn't one of you know a book publisher?

Monday, October 17, 2011

Vigilant parenting and potentially creepy social network connections

The duties of parenthood continue to evolve. When I was a brand new parent, 27 years ago, I never dreamed that I'd become obliged to monitor my children's Facebook postings. Good grief, 27 years ago I'm not even sure that Al Gore had finished inventing the Internet.

But this is how things developed: I started out monitoring my older kids' statuses on AIM when they were in college (I learned all sorts of things from paying attention and, I like to think, I saved them some embarrassment by advising them to take down or revise certain posts). When Facebook came along -- and after I finally persuaded the kids to "friend" me -- I began monitoring these posts instead. Today, AIM is consigned to the dustbin of technological history, but the habits of vigilance learned with that comparatively primitive technology have served me well.

I don't worry too much, these days, about what the older kids post. I wouldn't put up as many details of my life as Older Daughter does of hers... and I wish her husband wouldn't put up strident political posts every few days... especially because I so seldom agree with him.

But the ones I really watch carefully are the younger kids, the two still in college. I don't want either of them to put something up that will cost them a job some day or get them into trouble at school. And I surely don't want to see anything that I'll have to tell their mother about.

Youngest Son chafes at the level of supervision I provide. What really galls him, I suppose, is that I'll leave comments that let him -- and his friends -- know that I'm watching.

Lately, I've been watching a lot of pictures that have been posted in which Youngest Son has been "tagged" with this pretty girl or that one or, more frequently, with two or three at a time.

I see these photos and I walk thereafter with just a little extra spring in my step. He's a chip off the old block, I lie to myself. (I'm very gullible that way.)

But then, the other day, I noted that my sister Betty had become 'friends' with one of the young blondes who has appeared frequently with my son in Facebook pictures.

Cue scary music here.

My real-life friend Steve says it is important to maintain a proper degree of separation between the generations on Facebook. Thus, I am Facebook friends with Steve, but not with Steve's son.

My rule of thumb has been, generally, that I will accept invitations from my kids' friends, but I will not request that any of my kids' friends become my Facebook friends. I varied from this only once: After Oldest Son got married, I did ask his wife, Abby, to 'friend' me. I thought, at that point, it was probably appropriate.

I got a little nervous when Younger Daughter's boyfriend, Olaf, asked to 'friend' me -- but they've been going out so long now I didn't think it would be a problem. (I checked with Younger Daughter immediately after. She approved.)

But, now, there was Betty friending this blonde. I'll call her Maureen because that is not her real name.

Yes, call me paranoid, but Youngest Son just started his freshman year of college. He's just met Maureen. And she's starting to infiltrate the family? Is this a Fatal Attraction scenario in the making?

I decided, reluctantly, not to panic. Panic is my ordinary default response to a wide variety of situations and circumstances... but, I thought, Youngest Son is coming home soon for Fall Break. I'll ask him privately. If the answers don't make sense, I'll call Betty and talk to her. (OK, I probably would have begun by screaming what in the blue blazes is the matter with you? Have you lost your mind? But, if Betty didn't hang up on me in those first moments, I probably would have begun talking. Eventually.)

Youngest Son came home Saturday. I asked him about this right away.

There actually is a valid reason for Maureen to 'friend' Betty. Maureen's mother and Betty are long-time friends in real life. I did not know that.

So that issue turned out to be happily resolved, and without family drama or police intervention. But a father's work is never done.

Friday, October 14, 2011

Bank reform -- Curmudgeon style

I was walking with a colleague in the Loop yesterday afternoon. It was cool, it was damp, and my colleague (who did not have a raincoat or umbrella) was paying more attention to which buildings had overhangs than he was to the people in the street before him.

So he wasn't paying any attention to the drumbeats coming from the vicinity of LaSalle and Jackson. I gently suggested we might want to turn north on Clark rather than walk over there.

"What?" he said, momentarily taking his mind off the task of avoiding raindrops. "Why?"

"The Happy Radicals," I said. "It's not just Wall Street they're occupying; they're over on LaSalle Street, too."

"Oh, I suppose," he said, not particularly pleased at the prospect of standing still (and letting the rain hit him) waiting for the light to change.

"Besides," I said, "if we go over there, I think I might have to stay."

* * * * * * * * * * * * * * * * *
I wasn't kidding either.

It's not that I fully support the Occupy Wall Street crowd. Talk about 99% -- I'd be willing to bet that 99% of those drum-beating, sign-waving individuals don't agree with the positions espoused by the person standing next to them. There are unemployed persons, students, anarchists, unionists, environmentalists and (if you believe New York Mayor Michael Bloomberg) oversexed opportunists hoping to get lucky in those confused, but angry groups, parading now in our biggest cities' business districts.

Their anger is really all they have in common. They're not all agreed on who they should be angry with, much less what they should do about it.

A lot of them, though, seem to have some vague notion that banks are part of the problem.

And that's why I'd feel obliged to stay. I agree with that.

Break up the banks!

I don't practice real estate law -- but I know a number of attorneys who do. I know a number of judges who hear mortgage foreclosure cases. The stories I hear are unbelievable.

Banks are not just callous or arrogant or irresponsible or uncaring. They are also incredibly, breathtakingly stupid and incompetent. Just to cite one recent example from a story relayed to me by a real estate practitioner, how can a bank agree to a short sale, on the one hand -- and I don't mean in theory, I mean with a willing buyer, with money, and a closing date set in stone -- and still insist on proceeding with the foreclosure case?

In It's a Wonderful Life, Mr. Potter was the evil monopolist wannabe who owned the bank and bought up the department store and the bus company and every other business that tottered in Bedford Falls at the height of the Depression. But big as he was made out to be, and as powerful as he thought he was, Mr. Potter would not be a pimple on the backside of the Bank of America.

We need George Baileys, and lots of 'em, not Bank of America. We need someone who knows who his or her money has been lent to, and who can exercise some discretion when he knows that a customer is having difficulty. The sale of mortgages should be flat out prohibited. The person who makes the loan should have to live with the consequences. This would encourage a banker to make only responsible loans. A bank should be able to live comfortably, if not extravagantly, on the spread between the rate at which it loans money and the interest rate it pays to the depositors who provide the money to be lent.

The big banks need to be broken down into teensy weensy, itty bitty pieces. Oh sure, if the big players want to maintain their giant investment banks, so they can piss away billions in the stock markets and ruin small countries, we should let them... on one condition. They must get out of retail banking. Forever.

If the investment banks fail, they fail. No more bailouts. They won't be necessary, either, because Grandma's CD and Junior's college loan and your mortgage will not be bothered by the investment banks' rise and fall. The new banks should be prohibited by law from putting one red cent in one of the surviving super-ultra-mega investment banks. Anybody else stupid enough to invest with them should suffer the consequences.

In the recent economic unpleasantness, the giant banks, having created and fed the housing bubble, making and selling irresponsible, impossible loans, and then sucking the nation's economy right into the sewer, had to be bailed out by the U.S. government. And with that government money, the banks paid enormous bonuses to their wildest speculators, completely ignoring the people who had been plunged underwater in their suddenly supersized mortgages (except to foreclose on them). Most of the banks paid the government back, sure. But they paid the government back with money squeezed from thee and me with larger checking account fees and higher interest rates on credit cards. That slowed what little recovery there was. Bank of America now wants to impose a $5 monthly fee for people to use their debit cards.

But I'll stop ranting for now. I have this almost irresistible urge to make placards.

Thursday, October 13, 2011

For one brief shining moment....

When I started Second Effort, I dedicated one of my email accounts to blog comments. Over the years I've accumulated a hefty pile of comments -- but recently the numbers of comments have dropped precipitously. Over the years, I've found that the best way to get comments is to leave comments on other people's blogs.

I did that for awhile. I spent far too much of my work days in this pursuit. And only some of the people I visited would reciprocate with comments here. So now I read what I want to read. Sometimes I comment. Most times I don't.

And, I've found, a lot of folks blog for awhile -- and lose interest. A few of my regulars have died. Others have found real jobs. Or other hobbies. It takes a peculiar stubbornness to keep blogging, as I have, for nearly seven years now. (This blog will soon turn six. But there was a blog before this one. It was long ago deleted.)

Even though my comments are down, I still get lots of "hits." Because I have nearly 1,500 posts (I'll probably reach that milestone next week) and such a wide variety of topics (or lack of focus, depending on your point of view) this blog apparently pops up in a lot of searches.

It's that lack of focus that has really helped to keep readership (and comments) down. I'll write about legal topics for awhile and maybe attract some interest from persons interested in the law. But then I'll start in on family topics again. Or whining about money. I'll try and position myself as a humorist. But, then, if I start getting people dropping in looking for a chuckle, I'll go on a political rant and offend conservatives and liberals alike. Then, just in case anyone has stayed with me anyway, I'll stop posting for a week. Or two. Once people realize that they can start their day without a dose of the Curmudgeon, they forget all about me and start looking for kitten videos on You Tube.

But I posted yesterday morning and, yesterday afternoon, from sheer force of habit, or forlorn hope, I thought I'd check my comment email.

I had over 40 new emails. New comments! I was over the moon. I was on Cloud Nine. I was irrationally exuberant.

Obviously (I thought) one of my many, many posts here had finally resonated in the Blogosphere. I'd gone viral, baby! That book contract was as good as sewn up.

I started looking at the list of unopened emails. Almost all comments, yes, but not all on the same post. Bad sign.

I looked at the first email. It was from "hair care products." My balloon began deflating. Sure enough, the "name" of the commenter was linked to a website.

I opened the next. This one, at least, was from an actual human name. If, that is, you accept "Mervyn" as a human name. It at least resembles the human name "Merwyn." "Mervyn" was moved to comment on my baseball playoff predictions. Not the wildly inaccurate ones I recently posted, mind you, but the equally inaccurate predictions I'd made in 2007.

And what did "Mervyn" have to say about my lack of prognosticating skills four years after the fact? "This will not actually have effect, I think so." And "Mervyn" thoughtfully provided three links to other sites, allegedly for video game stuff.

Others in this barrage of comments were from indisputably human names -- but every blessed one of them was along the lines of, "Quite worthwhile piece of writing, lots of thanks for the article," or "It's all erroneous the thing you are saying." And nearly every one of these "comments" had three links for game sites, pharmaceuticals, phone apps, antibiotics.... The ones that didn't have three links had four.

I started deleting frantically. Despite the precaution of requiring word verification on comments, I'd been massively infected with spam links. The Blogger spam filter caught less than a quarter of them, too. The vast majority had been published -- and I spent a good chunk of time yesterday afternoon unpublishing them.

For one brief shining moment, though, I thought my obsessive blogging had finally turned me into an overnight sensation. For one brief shining moment, I thought I saw a glistening castle on a hill. Then my vision cleared, and the "castle" turned out to be a pyramid made of spam.

Wednesday, October 12, 2011

A one-day jury trial -- part last

Back again after another gap -- would you believe my Internet was out again at home and at work at times during this interval? No, seriously.

I've taken one day's work and blown it up into four posts now, chock full of war stories and inside (and almost certainly obsolete) observations about the Cook County Circuit Court and still haven't told you about how I managed what I'd previously thought impossible: I tried a civil case to a jury in a single day.

Isn't blogging amazing?

And people wonder what editors actually can bring to the process of writing....

But no more teasing: Today, I will reveal my hard-won secret. And here it is:

Eliminate the witnesses!

I don't mean we did anyone any physical harm. No one was stuffed in a trunk or anything.

Rather, we used evidence depositions.

Evidence depositions are a distinctive feature of Illinois procedure -- we may be the only state that does things this way. We can decide, in advance (the recent exceptions incorporated into Supreme Court Rule 212 notwithstanding) whether we will take a deposition for "discovery" or "evidence." If for "discovery," we can ask pretty much anything we want. I don't remember ever asking anyone a Barbara Walters question (if you were a tree, what kind of tree would you be?), but it is perfectly acceptable to ask questions that would otherwise be objectionable (did anyone tell you about what they claimed to have seen in the accident?). Contrary to all the rules you learned from watching television, we can ask questions to which we have no clue what the answer might be. Discovery depositions are often quite useful.

On the other hand, an evidence deposition is intended, from the outset, to be read at trial. That means if your opponent asks an objectionable question, you must object right then, just as you would at trial, or else your objection is waived.

Evidence depositions are difficult in that it is hard to be as sharp a year before, or even a month before, the actual trial. Samuel Johnson said that when a man knows he is to be hanged in a fortnight it concentrates his mind wonderfully. Something similar may be truthfully said of the two weeks before a fixed and definite trial date.

In Illinois, evidence depositions are most often used to obtain the testimony of treating physicians. Doctors think very highly of their time, and very poorly of lawyers. A doctor will typically charge a king's ransom to come to court, but only a duke's ransom, or maybe even a viscount's, if you go to the doctor's office, before or after office hours, and take the doctor's testimony in an examining room. Or the doctor's private office. Somehow, the setting is never quite as inspirational as the courtroom.

We took an evidence deposition of the treating chiropractor in the case allegedly under discussion in this posts. We were in one of his examining rooms. Instead of a conference table, there was an examining table. I was perched on a stool. Opposing counsel had a chair from the waiting room. The court reporter had to look out around the heat lamp. I asked nearly all the questions I was supposed to -- but, though I had the doctor identify his own bill, I did not have him state the amount of that bill on the record. Opposing counsel (who was not the attorney who tried the case because she had a conflict that day) made objections she didn't need to make and forgot some she might have made.

But the point is that the court reads the deposition in advance, rules on the objections, and what is read to the jury has all the extraneous verbiage cut out.

And what works for doctors works equally well for other witnesses as well. While the evidence deposition of a doctor may always be introduced, regardless of the doctor's technical availability at time of trial (SCR 212(b)), the evidence deposition of anyone else is supposed to come in only if the deponent has since died, or is out of the country (and the party procuring the deposition didn't cause that to happen), or if "the party offering the deposition has exercised reasonable diligence but has been unable to procure the attendance of the deponent by subpoena" or if the court finds, in advance, that "exceptional circumstances exist" that make it desirable to allow the evidence deposition to be used instead of live testimony.

This last, of course, is the exception big enough to accommodate the small, one-day trial. As a practical matter, an exceptional circumstance is likely to be found where the parties' attorneys agree to procure and use the evidence depositions of this witness or that one (SCR 212(b)(1)-(3)).

Are you disinclined to accept this as adequately exceptional? Look at it this way: There are a lot of lawyers in Congress. When do they ever agree on anything?

Thus, in our case, by agreement, we had evidence depositions of two occurrence witnesses that could be read as well.

And, by the way, unless the deposition has been videoed, that's the way the testimony comes in. They are read. We get to play act! Someone plays the witness, and someone else reads the questions. It's better, certainly, if trial counsel does not step outside his assigned role and play a witness, too. Defense counsel procured another attorney from her office to act as the witnesses in her evidence depositions (and the reader was great -- emphasizing every point that was in the defense's favor but not so blatantly that we had any basis upon which to object). I, on the other hand, was obliged to demonstrate a little versatility. The attorney who asked me to assist with this trial played me -- and I played the part of the chiropractor on the stand.

A movie contract is about as likely as a book contract at this point.

But, still, without the delays inevitable to live witnesses (she promised me she'd be here by 2:00, judge), we could rip through the evidence depositions in a fraction of the time. And we got the case done.

We even got a verdict in our client's favor.

It was nearly twice what the defendant's insurer offered -- and about half of what we wanted. We're fighting over the adequacy of one element of damages awarded. But I'll see some revenue from this case... soon. The most important thing, however, is that I can now say I've tried a case recently. Because people who watch too much TV think that's what you have to do if you're a real lawyer....

Thursday, October 06, 2011

A one-day jury trial -- part three

I didn't post yesterday because I had no Internet. Again. I had planned to work from home yesterday -- and when I sat down to my desk, I discovered that I was offline. I'm going to try to do today everything I set out to do yesterday -- including this post.

I've been marveling at the idea of starting and finishing a civil jury trial in a single day in several posts this week. I closed last time saying that my experience had persuaded me that it couldn't be done.

I started out in this business as an insurance defense attorney. Insurance companies would hire my firm to handle cases on behalf of their insureds. As appointed counsel, I would be the insured's attorney just as much as if the insured had picked my name out of the phone book. On the other hand, I would report to, and would be paid by, the insurance company that hired me.

The Bible says that no man can serve two masters. Well, lawyers can, as long as there's no conflict of interest or, in certain circumstances, where the conflict of interest is waived.

Most of the insurance defense cases I handled were in the Law Division of the Cook County Circuit Court. Although there have been some experiments with other methods (commercial calendars and individual calendars) during the course of my career, for the most part, the Law Division has operated on a 'master calendar' system. That means that x judges were assigned to hear pre-trial motions, y judges were assigned to hear pre-trial conferences (trying to settle cases), and z judges were designated to try cases sent to them by the assignment judge. Over my years, x expanded (from two to three to four to eight to 10 -- although the actual number now may be less than that) and y fluctuated and was sometimes even zero (meaning that motion judges and trial judges took on settlement conference duties in addition to their other tasks).

Serving as the assignment judge was no picnic. It may have been strictly coincidence but, for awhile there, every judge assigned to that position died soon after. One of the more stressful aspects of the job was that almost no one who was supposed to be ready for trial actually was ready for trial. There was always some problem: A doctor had gone on vacation, an expert suddenly became unavailable, a key witness just had surgery. Something. Many times the excuse would be that the attorney that was supposed to try the case was already on trial in a different matter. One Law Division assignment judge kept a phone under his bench for these occasions. He'd pull it out with great flourish and ask, "What judge is your attorney in front of?" He would threaten to place a call to verify the information. Sometimes the information was even true.

I recall one occasion under the old black line system -- which distinguishes it from the new black line system, now several years old and oft-revised. (Lawyers are good planners. We always have plans. Judges, being one-time lawyers, are equally good planners. There've been many serious plans to streamline the trial assignment process and get cases out to trial faster and more predictably. These well-intended plans, like battle plans generally, tend not to long survive contact with the enemy. Although, in the legal profession, as in Walt Kelly's Pogo, we have met the enemy and he is us. And have I mentioned that lawyers tend to wander off topic a lot? I have? Good. There's no need, then, to mention that again.)

Besides, I was telling you about this one time, many years ago, when I had a case come up above the old black line, which meant, in theory, that the case was supposed to be ready for trial and could be assigned out at any moment. Only my case was on page 20-something that morning. As you might expect, cases on page one would have priority.

Anyway, I answered "ready" when my turn came. But, by page 20-something, all of the available judges had cases assigned. So I was told I'd be held day-to-day until a judge became available.

Well, I could count. I was case 250 or 300 or whatever I was and it seemed to me that day-to-day would turn into week-to-week. Maybe even month-to-month. I went back to the office and spent the rest of the day calling witnesses and telling them that we weren't going to trial anytime soon; that they might just as well pick up the pieces of their lives and move forward and that I'd let them know, in a week or two, if I heard anything more definite about our prospects.

The next morning my case had vaulted from page 20-something to page three. I don't remember whether I got a judge that day, but it was now obvious that I was likely to get a judge within a day or two at most. Badly shaken, I went back to the office and called everyone again.

They thought I was an idiot. Wouldn't you?

After the fact, I went to visit a court administrator to find out what happened. What happened, he told me, was that I had a real case and represented a client on behalf of a "standard" insurance company. Most of the cases in front of me were defended by the "sub-standard" carriers and were never going to answer ready. Therefore I was jumped ahead of all of these. How I was supposed to know this, however, was never quite explained to my satisfaction.

Anyway, once one got a case assigned to a judge, the lawyers would call the judge's chambers or wander over and ask when the judge might be available to see them. Even if the judge was immediately available, there would be no immediate dipping into the jury pool. The judge might want to look the file over, and possibly discuss settlement prospects. Were there any motions assigned with the case? (It frequently happened that 11th hour summary judgment motions would be assigned with the case to the trial judge.) How many motions in limine did the parties anticipate? How long did we think these would take?

If you know about trials only from television you've never heard about motions in limine. You just see the beautiful lawyer in the skirt so short no lawyer would ever wear it to court, jump up from her seat in response to some sneaky question from her evil opponent and yell, "I object!" Then a commercial will come on for cars or soap.

Well, yes, lawyers do object sometimes to questions posed in court. But lawyers try to minimize these objections because we believe that jurors hate the interruptions and might punish the lawyers who make the objections -- even if the judge rules in their favor. Dark thoughts may form in the back of jurors' minds: What are they keeping from us? As trial lawyers, we don't want jurors having dark thoughts about us or our clients.

So motions in limine are supposed to anticipate testimony that might be objectionable and get the court to decide, in advance, what will come in and what will be kept out. Sometimes these are used by a party to get the judge to agree in advance that questions along a certain line may be asked or that a particular witness can express this opinion or that one. As a practical matter, however, both sides will often in addition come up with list of motions designed to totally hamstring their opponent's case. I was once in a case where we had two solid weeks of in limine motions. The answer to 'what are they keeping from us' is often 'plenty' -- but the jurors never know what they missed. In fact, sometimes cases settle because of the trial court's rulings on the in limine motions: The attorney for one side or the other realizes that his or her case has been gutted and seeks a truce.

I therefore do not wish to give the impression that any of these pre-trial maneuverings are bad or inappropriate. While in limine motions in particular may be overdone (and it is the trial judge's responsibility to rein in excesses when they occur), all of this stuff is a legitimate part of the process. These procedures are not conducive, however, to getting a case tried in a single day.

Now it was also my experience that less tended to get done on Friday afternoons than on Monday mornings. Yes, this is like experiencing that it gets dark out at night and brighter in the morning. But it used to be, and probably still is, a fact that a lawyer in a case assigned to a Law Division judge on a Friday would probably not have to worry about jury selection before Monday morning.

Did I mention that the case that this series of essays is ostensibly about was tried on a Friday?

You've probably forgotten all about that case by now. I'm surprised I still remember it. But I'll finally talk about that case tomorrow. Maybe. Probably. Even if tomorrow is Friday.

Tuesday, October 04, 2011

We interrupt this discussion of Curmudgeon's recent trial --

-- to point out that Captain Picard's Journal is still offline. (I'd link to it... but it's offline.)

I had a comment over the weekend from the proprietor of said blog who said "Blogger identified my blog as spam and removed it. It will return soon, following a review."

I would point out to Blogger that it once honored Captain Picard's Journal as a "Blog of Note." While that may not be akin to a Pulitzer, it is an honor that has never been bestowed on this blog. And surely this credential should have counted in its favor when Blogger received a challenge concerning same.

This is the second blog that I read regularly to be shutdown for no apparent reason. Dave, the Atlanta-area lawyer who pens Rather Than Working, recently suffered a similar fate.

I look forward to the prompt return of Captain Picard's Journal.

A one-day jury trial -- part two

I didn't think a one-day civil jury trial was possible until a year or two ago when Long Suffering Spouse served as a juror in just such a case.

Of course, hers was a property damage subrogation case, a particular kind of case that has clogged our local dockets. When Car A rear-ends Car B, and when both cars are insured by "standard" carriers, the subro claim by the carrier for Car B against the carrier for Car A is more than likely handled in a phone call or email. Make the facts more interesting, so that Car A is attempting a left hand turn when it comes into contact with Car B, and the two carriers may have something to argue about. But the "standard" carriers have executed binding agreements with each other, agreeing to keep those arguments out of court and resolve them by arbitration. Locally, these claims are heard by a company called Arbitration Forums. I understand AF to be a national company but, as I recall, it has a local office in north suburban Deerfield.

Not all insurance companies have signed the inter-company arbitration agreement. The companies that have refused to sign are generally referred to as "sub-standard" carriers. Claims involving these carriers are generally not settled over the phone. They do not go to arbitration. They go to court. The sub-standards always, always, always demand a jury trial. And there are a lot of these cases. (A new Illinois statute is supposed to cut back on these cases; a constitutional challenge may delay, and ultimately prevent, the implementation of the proposed reform.)

Somehow -- and I don't know how, so don't ask -- the sub-standards make money by doing business this way. It may have to do with the value of money over time. I did know a guy who really knew the secret, once upon a time, but he died before he could share it with me. Not that he ever promised to do so, mind you. Not that he ever hinted he would. But once I found out that he knew, had he lived, I would have kept trying to find out.

Anyway, the case on which my wife served as juror was one of these sub-standard PD claims. The attorneys, she said, were younger than some of our children, and she thought one of the attorney's voices was not through changing yet. He must have squeaked a few times. They read from notes; their notes shook when they read. But there could only be three witnesses at one of these trials, the owner of Car A, the owner of Car B and the insurance adjuster who calculated the damage. There are only so many questions one can ask of any of these. And, most important, the trial judge was insistent that this case would be concluded before the end of the day.

And so it was.

From a policy standpoint, I thought this was a tremendous idea. The sub-standards want jury trials? Give them one in every possible courtroom, one a day at least. Stack them up like cordwood. Try 'em one after the other. The strain of finding and securing witnesses, getting them to the courthouse, and keeping them available would put a strain on the firms handling these cases. Eventually, I believe, the sub-standards' business practices would have to change.

But I don't know that there are enough judges willing to pursue this course. My experience has taught me otherwise. And I certainly didn't think that other types of cases could be pushed through in a single day. Again, my experience taught me otherwise.

And I'll talk about those experiences tomorrow.

Do you like how I'm getting a week's worth of posts out of a one-day trial?

Monday, October 03, 2011

Another day, another jury?

I mentioned briefly last week that I would be on trial Friday.

Some small part of me never expected that to actually happen. The insurance company's attorney did her best to make me believe that we would go to trial -- but I've been the insurer's attorney, too, and I know that there's a certain amount of bluff built into any prediction, no matter how confidently made, that this case will go to trial.

I am a civil lawyer. I don't mean that I'm nice and polite to one and sundry, though I like to think I usually am; rather, I mean that I handle civil cases.

In the broadest sense, civil cases are those in which money is on the line. In other words, no matter how badly I screw up, no innocent person will wind up in durance vile. This differentiates me from the "criminal lawyer," most of whom are not themselves criminals, but who spend most of their days trying to put people into, or get people out of, jail. A lawyer who inadvertently stumbles upon this post might point out, correctly, that some criminal cases involve only the threat of a fine, not imprisonment. A lot of future lawyers used to get beat up every day on the playground for making valid, subtle and entirely unimportant distinctions like this.

In Chicago, the orbits of civil lawyers and criminal lawyers rarely intersect. It must be different in smaller venues, where there is only one courthouse, and all cases are heard there, sometimes by the same judge. However, in Chicago we have a Criminal Courthouse, at 26th and California (which has more to do with the location of former Mayor Anton Cermak's political base than anything else) and the Daley Center downtown. There are some criminal cases heard in the Daley Center -- the Traffic Court occupies the basement -- and serious DUI's are, I believe, heard on the 4th floor -- but the vast majority of the building is given over to the handling of civil matters. Torts. Contracts. Divorce (which too often involves both torts and contracts). Probate. Chancery.

One of the few places where civil lawyers and criminal lawyers come together is when some among them harbor judicial ambitions.

When I first sought judicial office (in 1994!) I had to appear before the judicial evaluation committees of the various bar associations. The Chicago Bar Association JEC, it was rumored, was supposed to be overstocked with assistant state's attorneys (what you may call DA's in your jurisdiction).

Rumor had it that the ASA's scoffed at the seemingly limited jury trial experience of civil lawyers. I know that I had only a bare handful of jury trials under my belt in 1994. I've had not much more than a handful since. In my world, though, going to trial was considered a disaster. One of the guys I worked for used to say, "If you try a case, you've already lost. If you're in court you're not taking care of your clients who are calling the office. If you win, your client wants to know why you couldn't have figured out how to get such an obviously weak case disposed of without trial. And you might lose...."

I found out, eventually, that this was an exaggeration, but only a slight one. The claims people at the Acme Insurance Company didn't really mind you trying a case now and then -- as long as you kept up with their files in the meantime -- and as long as the trial was for some other company. That way they could say they were sending business to seasoned trial attorneys without having to pay for the seasoning.

Criminal lawyers, on the other hand, were rumored to try cases to juries every day, sometimes finishing two before lunch. This gave the criminal lawyers a certain swagger. On the other hand, we civil lawyers noted a distinct shortage of paper in criminal files. Where were the briefs? The motions and supporting memoranda? The mountains of research? The discovery? The discovery disputes? Civil lawyers would argue that these many criminal trials were shallow, pale imitations of "real" trials -- even if many of the unhappy losers in those criminal trials were sentenced to time in the Crossbar Motel.

Still, some of us wannabe judges -- me, for example -- looked at the ASA's and Assistant Public Defenders who claimed to have logged 100 or more jury trials with something of a jealous eye. The voting public, conditioned by television to believe that all legal disputes resulted in jury trials, naturally favored the lawyers who could honestly claim that they'd racked up large totals of same. Some of these well-seasoned trial lawyers would attain judicial office and, in the ordinary course of events, be assigned to a civil calendar, where the staggering amounts of paper would come as an unpleasant shock.

I've often wondered what "seasoning" should be associated with the trial of a case, anyway. Given the way lawyers sweat out every case, no matter how trivial, I suppose it must be salt.

Anyway, I was on trial Friday -- I started the trial and I finished the trial on Friday. It was rather exhilarating, actually, and time and events permitting, I will talk about that trial a little bit here this week on Second Effort.