Just a light re-post for the holiday weekend…this story has got some play in the local media:  Chicago lawyer objects to buxom woman at trial table.

Attorney Thomas Gooch says the woman’s sole purpose “is to draw the attention of the jury away from the relevant proceedings” — a dispute over a used car. He asks Cook County Circuit Judge Anita Rivkin-Carothers to order the woman to sit in the gallery with other spectators.

In responding to the pretrial motion, attorney Dmitry N. Feofanov said the woman is his paralegal assistant and contends Gooch cites no “good faith legal argument” why she can’t sit at counsel’s table. Feofanov, who in the past has described himself as a “consumer protection lawyer,” asked Rivkin-Carothers to impose sanctions on Gooch for his motion.

Gooch told the Chicago Daily Law Bulletin he wasn’t objecting to the woman because she is buxom, but because he doesn’t think she is a paralegal.

“Personally, I like large breasts,” he said. “However, I object to somebody I don’t think is a qualified paralegal sitting at the counsel table — when there’s already two lawyers there — dressed in such a fashion as to call attention to herself.”

Funny, funny…I had a real knock-down trial once with Mr. Gooch. I’ll just say he’s “interesting.”

So although SIC’s official tag line is “Down-To-Earth Legal Advice for Legal Entrepreneurs” it could just as easily be, “Learn From My Dumb Mistakes”. Here’s yet another example that left me aghast for a moment or two but, thankfully, quite satisfied in the end. And it’s something that comes up quite often so please, learn from my DUMB MISTAKES as I try to as well (Churchill:  “All men make mistakes, only wise men learn from their mistakes”).

The issue is references to “exhibits” in long legal forms that may not get included in the final executed document (and yet the “exhibit” references remain in the body of the form/document).

I need to be aware of this in my practice in both real estate contracts and landlord/tenant leasing situations. Many of the form real estate contracts flying around include various form exhibits/addendum for real estate agents to use to quickly add certain provisions into real estate transactions. In residential real estate this usually isn’t a problem since there’s a 5-7 attorney review period up front when I review a contract and as long as I’m doing my job thoroughly if there’s an exhibit referenced in the contract I’m going to make sure I have that exhibit or if it’s improperly referenced then I’ll modify the contract to clarify that point.

It was during a commercial landlord-tenant trial recently where things got dicey and the Judge popped-the-question to me, “Counsel, Where’s Exhibit D?” I represented the landlord and we had a pretty strong case essentially based on unpaid back-rent. However, the tenant was represented by counsel so it wasn’t a total push-over. Thankfully we had admitted the lease into evidence and the tenant stipulated that this indeed was THE LEASE. The tenant was defending on the basis that landlord was to make certain repairs up front that had not been made. Well, testimony and argument were over and I thought our case was airtight when the judge popped the question. Of course the real answer was that there was NO exhibit D…this was just some form lease that a non-lawyer leasing agent uses and not every exhibit gets used with every lease. But those exhibit references remained in the lease.

Well, the story has a happy ending (for Plaintiff’s counsel at least), the judge took a brief recess and looked through the 40 page lease  and did exactly what I wanted her to do…Order for Possession and $$$ Judgment for the Plaintiff. And she specifically referenced the fact that the lease was admitted into evidence and Defendant acknowledged its terms.

What’s a better way to handle the above?

Ideally I’m doing the leasing but in reality that’s going to be a broker function more often than not. But I should look at the leases more closely BEFORE filing suit to clarify with landlord which exhibits are part of the lease & bring out this fact on my direct examination of Plaintiff during trial rather than leaving it up to the Judge to uncover this nugget which makes it look like we’re hiding something.

The more time I spend sitting around courtrooms for my own cases & even more relevantly for this post, the more time I spend sitting around courtrooms observing other lawyers, the more strongly I feel that the title above is CORRECT!  I’m sure there’s an exception or two to the above where trials are inevitable such as in some of the criminal or personal injury areas, but in many, many practice areas court appearances tend to be mostly of the “status report” variety or mere formalities to have a judge sign-off on some settlement. And that’s why you need to do your heavy lifting/lawyering back at the office.

I think too many lawyers & clients do not get this.

How do you know if you’re not doing enough strong lawyering outside of court? The fact that you or your cases are in court too frequently might be the first strand of evidence. Second, are you in court too much on matters that are mostly logistical in nature like discovery disputes or temporary orders or mere case logistics? I just observed a big deposition controversy in the last few days at Daley Center that surely should have been handled without judicial intervention.

I think of the in-court vs. out-of-court balance as very similar to athletics where 90% of your time is spent practicing and games comprise only 10% of time. Practices are where the heavy lifting occurs and your skills are developed. If you attend a football game you can tell who worked hard in preparation for the game in comparison to the person who sloughed-off during the week thinking he could just show-up on Saturday and make things happen. The courtroom picture is very similar. I can almost always tell which lawyer has communicated with opposing counsel long before this court date or has been pushing her client to answer discovery or speak to the other party about settlement or push the case forward generally.

Here are 5 reasons to step-up your Outside-the-Courtroom Lawyering:

1. Less court = Less lawyer/client hassle. I don’t mind going to court and frankly I like a good old contested hearing once in a while but you can’t tell me that most clients enjoy going to court. Nope, most clients dread going to court. It’s time off from work, coming downtown, paying for parking, and just an uncomfortable high stress situation in general. I talk to clients up front about 3-4 case approaches from mediation to lawyer as mere scrivener to cases where EVERYTHING is in-court and strictly between the lawyers. Once in while I do end up in the extreme category where everything happens in court and only between the lawyers, but honestly that’s the worst place on the continuum to be.
2. Client Ownership & Client Actualization. Every case is the client’s case. I might live with a situation for several months or sometimes a couple years but it’s the client’s for life. I’d rather have great input in shaping the terms of a judgment instead of strictly having terms imposed on me. List client action points with every letter you send after a court date and check-in with clients via telephone/e-mail to make sure progress is happening.
3. Be a Level 5 Lawyer. Jim Collins in Good to Great talks about Level 5 leaders as the essential leaders where certain companies made the jump from good to great. The book analyzes the traits of certain select high-performance corporations. In a nutshell, Level 5 Leaders “blend extreme personal humility with intense professional will.” I think there’s a relevant parallel to lawyers…the ideal “Level 5 lawyer” has intense pride focused solely on the case result and client satisfaction whereas many lawyers sort of want to pad their ego by keeping case decisions only in their hands and subtly raising their own importance while undermining client satisfaction and frequently worsening case results.
4. Start with the End in Mind. Once you’ve been retained by a client, you should immediately set out a case map with your client laying out time-frames, action points, and the major decisions that will be decided over the course of litigation. Get the client engaged and working on her case immediately. In my practice using the example of a dissolution of marriage case, decisions are typically going to be made regarding 1) property division, 2) maintenance, 3) child custody, and 4) child financial support…talk through the statutory standards on those matters up front and see if the clients can work through these matters together. If the clients can make these decisions themselves great, if not make sure you’ve done your strong out-of-court lawyering so you know where court intervention IS necessary more quickly. The trouble is when 6 months into a case a client may not even yet know or understand the items a court may need to decide or the decisions that need to be made.
5. No fights about temporary orders or discovery, EVER. Granted I can’t always achieve this but it is a rule of mine that I tell clients up front. This is the crap that wastes critical dollars, lawyer time, and is wholly unsatisfying. I never want to be the lawyer in court from a few weeks back who had to argue about re-scheduling a deposition in open court. The mother has custody of the kids while the divorce is pending, keep supporting them, keep the temperature down, and work out a parenting schedule between the two of you.

I thought I’d share a little tale from a recent courtroom hearing experience I had that worked out great for my client but not so great for the other guy (or woman in this particular case). And not as a matter of immodesty but rather because I could see something like this happening to me and it’s a good reminder of the importance of doing at least a little client preparation before your next court hearing. Because I know with me, there are 2-3 hearing types that I do ALL THE TIME (contempt defense, child support modification, dissolution of marriage prove-up) but my clients don’t.

My issue last week was a parentage case for retroactive child support and there was potentially some $30,000 at stake. Simply, this was a case where the mother of 2 children filed for child support some 8 years after the children were born and the Parentage Act potentially allows for retroactive child support to be awarded for that time period between the date of filing and the date of the birth of the children, so in this case some 8 years. That’s a lot of $$$ at some $1,000 per month in child support.

Well, one of the factors that a court must weigh in deciding these retroactive cases is:

(5) The extent to which the father would be prejudiced by the delay in bringing the action (750 ILCS 45/14(b)).


OK, so if you’re not an Illinois domestic relations attorney you might be asking yourself, and why do I care? CLIENT HEARING PREPARATION.

The lawyers representing the mother in my case repeatedly asked her whether her delay in bringing this case would “prejudice” the father (my client). And she repeatedly answered, YES! And there were several reasons why the judge in my case ruled in the father’s favor but the “prejudice” factor was one of the 2 primary reasons the judge cited. And why did the mother say that, yes, the father would be prejudiced? SHE DIDN’T KNOW THE MEANING OF THE WORD PREJUDICE! Something just a bit of CLIENT HEARING PREPARATION may have taken care of.

I finally got around to reading this case out of Sangamon County involving a trial court’s finding of indirect criminal contempt against a lawyer. It’s instructive specifically regarding lawyer conduct before a tribunal and I’m a self-labeled “contempt junkie” so that part of the case’s discussion is also useful if you have the same problem.

Briefly, a pro se client seemed to be unsuccessful in getting a motion to modify certain post-divorce financial obligations scheduled before the court although he did get a motion filed. Most courts have some local rule that says you need to set a motion/pleading for hearing in 90ish days from filing or it’s a nullity (you’d need to re-file…it’s treated as if it was never filed). Here, apparently the date of the original filing of the motion was important. Next, pro se client retains lawyer who files motion to set pro se’s previous motion for hearing and lawyer says the pro se motion was still timely BECAUSE it had been noticed up in the past but opposing lawyer had improperly appeared and that the motion set in court was stricken on that day w/o notice to pro se litigant.

And what does “new” lawyer for previously pro se litigant use as evidence of the above scheduling “issue”? An exhibit to his pleading which is a page from the judge’s court scheduling calendar.

Well, so then the case heads down the contempt road. Judge asks lawyer how/where he got the calendar page and lawyer says the clerk gave it to him and clerk denies this and there’s a whole contempt hearing sort of he said/she said between lawyer and judge’s clerk.

Lawyer is eventually held in indirect criminal contempt of court and fined $100 and required to apologize to the court. On appeal they modify to indirect civil contempt and remove the $100 fine. Short opinion and an interesting discussion of types of contempt.

I wonder how comfortable the lawyer is appearing in that judge’s/clerk’s courtroom these days.

So I had my first criminal trial down at the Cook County Criminal Court (26th & California) last week. As the defendant’s lawyer I had a pleasant experience…I thought my case was strong. Here’s a previous post about the case. Ruling to come next month so we’ll really see how “pleasant” it really was in about 30 days here.

One thing I did like about the criminal setting was my perception at least that those judges are used to making decisions and running trials. During most of my court work in civil land with many judges it feels like they want to avoid trials and avoid making decisions at all costs which often leads to unnecessary frustration and delay. Granted, it’s a fine line between encouraging settlement and unnecessary delay, but eventually like Richard Nixon supposedly said to candidate Dwight D. Eisenhower during the “fund controversy” during the 1952 election, “you’ve got to sh&$%# or get off the pot.”

Another learning point was one that young lawyers likely must learn repeatedly early in their careers (and perhaps non-young lawyers). And that is simply getting comfortable with the feeling of never really knowing everything and being 100% prepared. In the back of my mind I’ve often thought that at some point I’ll be real comfortable and confident heading into all of my meetings and particularly court appearances. But that’s not so and I don’t think that’s the nature of being an attorney. The reality is you’re constantly dealing with changing statutes, court rules, and different fact patterns and being all-knowing isn’t possible. I was nervous heading into my first criminal court case but in knowing the case backwards and forwards, doing the legal research, and talking with a few colleagues I was as ready as I possibly could be.

And that’s usually all you can do. Now to master that mindset for those future unusual cases…

Then don’t say anything at all! That’s the old adage at least. I wish I saw it followed more in the legal field.

I got to thinking about this recently when reviewing a letter/counter-offer written to me by an opposing attorney as part of negotiations in a dissolution of marriage (divorce) proceeding. Because in my example, the attorney (and ostensibly her client) were agreeing with us and on the substance doing exactly what we and they wanted. Simply, they were in agreement with me and my client about how to divide a marital asset. But, in the sentence before it’s stated that we agree to divide said asset in such-and-such way, the attorney states, “Client X has done nothing to contribute to the acquisition of assets in recent years.”

Now, I’m not naive here, there’s a place for criticism and threats as a negotiating tactic when you can back them up and when they serve a purpose. But, if you’re in agreement, what purpose does the “dig” serve? The purpose it often serves is to upset the recipient to an extent he/she may no longer be too thrilled about settling something that you just agreed to settle.

Now, why’d ya make that stupid comment again?

The definition of an “Appearance” for court purposes – a piece of paper that gets filed that says I lawyer am representing a client as sayeth on the Appearance I’ve filed.  And you’re supposed to file this BEFORE you appear in court to represent a client, with a rare exception or two.  But I always see this abused in two ways and way too often judges let it slide.

First, like I witnessed today, a lawyer shows up a couple hours after the case had been resolved, had not brought any kind of motion (just asks the clerk to have the case re-called), had NOT filed his Appearance and then steps up as if he’s the attorney of record.  If I’m a judge I simply do not let that person address the court until I see a filed Appearance. It’s rife with potential trouble notably in terms of inadvertantly subjecting a person to a court’s jurisdiction where it may not otherwise lay.  And as a laywer it’s just tacky…take 5 minutes, prepare an appearance, drop it in the no fee box, then, go to court.

Second, it perhaps bothers me more when a non-party, non-attorney is allowed to step up and address a court on behalf of a litigant who chose not to appear. And this one has hurt clients of mine more than once where I’m ready to take a default say Order of Possession or something in the landlord/tenant area and I can’t get this done because a judge lets a non-party “represent” a party in court (why have lawyers if non-lawyers can just step up for another party?).

Just a funny nugget from Chicago Lawyer’s monthly Q&A column with appellate lawyer Karen Kies DeGrand:

What is the strangest thing that ever happened to you as a lawyer?

This happened probably about 10 years ago. I was in Springfield for a case that was being argued in the Illinois Supreme Court and our opponent showed up apparently drunk. You almost couldn’t believe your eyes. When you go to the supreme court for an argument the personnel at the court know everybody who’s in the building; they are keeping a very close eye on everything, even pre-9/11. They were cognizant of what shape this guy was in, but ultimately he got up there and he was relatively inappropriate. My thought, at the time, was we better win. But we did, but obviously it was one of those things where I don’t think I will ever see that again.