Volume: 155 Issue: 190

by John Flynn Rooney Law Bulletin staff writer

The federal trial courts in the 7th Circuit are launching a pilot program Thursday aimed at easing the cost and difficulties associated with electronic discovery in civil cases.

The pilot project emanated from concerns about the mounting costs of electronic discovery, U.S. Magistrate Judge Nan R. Nolan, chair of the committee overseeing the pilot program, said Tuesday.

Those concerns were laid out in detail this spring when the Irvine, California-based American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System at the University of Denver issued a report on their joint project regarding the pretrial discovery process in the United States.

The report included survey responses from more than 1,300 fellows of the college and showed that the nation’s civil justice system is buckling under the weight of discovery requirements.

The report said many members of the bar believe that electronic discovery rules have made the process more cumbersome and drag out litigation.

Provisions in the Rules of Civil Procedure relating to electronic discovery went into effect on Dec. 1, 2006.

The report said more than 87 percent of the lawyers surveyed maintained that electronic discovery drives up the costs of litigation.

Respondents frequently described electronic discovery as a “morass,” according to the report.

Chief U.S. District Judge James F. Holderman said Tuesday that, especially after the report was issued, he and Nolan “decided we needed to do something to help the legal system cope with the volume of discovery.”

Holderman, along with the 10 U.S. magistrate judges sitting in Chicago, will participate in the pilot project. Other district court, magistrate and bankruptcy judges serving in the 7th Circuit, which covers Illinois, Indiana and Wisconsin, are expected to join the program, Holderman said.

Each of the judges who volunteer for the program will work with lawyers to identify up to 10 cases pending before the jurist to determine whether the cost of electronic discovery can be reduced by participation in the program, Nolan said.

Michael D. Monico, president of the 7th Circuit Bar Association and an Electronic Discovery Committee member, welcomed the effort.

“We think it will be one of the most important programs of its kind in the country to help reduce the costs and difficulties of e-discovery,” said Monico, a principal of Monico, Pavich & Spevack.

The 40-member Electronic Discovery Committee includes in-house counsel, private practitioners, government lawyers, academics and litigation expert consultants, most with headquarters in the 7th Circuit.

The committee has met three times since May, most recently about two weeks ago. The committee also formed three subcommittees: Preservation, chaired by James S. Montana Jr., a shareholder with Vedder, Price P.C.; Early Case Assessment, co-chaired by Karen Caraher Quirk, a Winston & Strawn LLP partner, and Thomas A. Lidbury, a Mayer, Brown LLP partner; and Education, co-chaired by Mary M. Rowland, a Hughes, Socol, Piers, Resnick & Dym Ltd. partner, and Kathryn A. Kelly, an assistant U.S. attorney in Chicago assigned to the office’s Civil Division.

Earlier this month, the committee members adopted principles for use during the pilot project’s first phase running from Oct. 1. through May 1, 2010.

Those principles address the purpose of electronic discovery, the need for cooperation during the process and maintaining proportionality in the discovery of electronically stored information, along with other factors related to the project.

“I think the principles are significant not only in what they say but in how they were drafted,” Quirk said Tuesday, referring to the diverse makeup of the committee.

In the first phase of the program, the Institute for Advancement of the American Legal System will focus on testing the effectiveness of the principles, Nolan said.

The results of that phase will be reported at the 7th Circuit’s annual conference in Chicago in May 2010, according to Nolan.

The second phase of the pilot program is set to run from June 2010 through May 2011.

“We’re going to take the results of the survey and make adjustments, if necessary, in the principles and basically do it again with the new concepts,” Holderman said.

More information about the project, including the statement of purpose and preparation of principles, along with a proposed standing order, can be found on the district court’s Web site.

The Senate confirmation hearings for Sonia Sotomayor began this week. But the real question that arises for the public when considering President Obama’s selection is not whether she will be confirmed but, rather, whether she is a favorable choice. There are obviously many considerations — too numerous to mention all of them here — but here are a few issues that you may want to ponder.

Religion

Our history tells us that a presidential nominee’s religion should not even be thought of as a possible unfavorable factor in determining whether the candidate is qualified to become a member of the U.S. Supreme Court. Before President Wilson nominated Louis Brandeis in 1916, court nominees were confronted with little and often no opposition in the Senate.

Brandeis’ nomination, however, stirred a firestorm of controversy in the Senate. Why? The probable answer, in part, at least, is because he was Jewish. Esteemed conservatives, such as Henry Cabot Lodge and former President Taft probably could not accept the fact that a Jewish lawyer could or should become a judge on the highest court in the land. Brandeis, of course, was confirmed over opposition, by a vote of 47-22.

Subsequently, other Jewish judges on the court who, like Brandeis, have served admirably include Cardozo, Frankfurter, Goldberg, Fortas, Ginsburg and Breyer.

So why is Sotomayor’s religion — Catholic — even being mentioned after she was nominated? Every decent American would agree that her religion does not factor into whether she is qualified to sit on the court. However, an entirely different question arises concerning her religion.

There are presently five Catholics on the court: Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Chief Justice John G. Roberts, and Samuel A. Alito Jr.  Sotomayor would become the sixth Catholic on a nine-member court of last resort for the entire nation. Sotomayor, Scalia, Thomas and Roberts all attended pre-university Catholic schools.

A question arises as to whether those circumstances are a plus, a negative, or even a consideration. Would one’s answer be the same if the question were posed as six Jewish or Mormon members instead of six Catholic members? One could expand the question to ask, “What if the she would become the sixth African-American on the court?”

One’s answer would not relate to whether Sotomayor is qualified to be on the court, because plainly she is qualified, but, rather, the answer would relate to whether the president’s selection of Sotomayor is a favorable choice considering the constituency of the court at this time.

Of course, while Sotomayor’s Catholic background may influence how she personally feels about certain subjects, her Catholic background is not an indicator as to how she would decide legal issues. Justice Brennan was a Catholic, and so is Justice Scalia. But you would never know that they had anything in common, let alone religious beliefs, based upon their opinions, the former considered a great justice by liberals, and the latter considered a great justice by conservatives.

Nonetheless, it is the “stacking” of six out of nine that is somewhat troublesome to some people when they have to answer whether Sotomayor is a favorable choice to become a member of this present court.

The New Haven Firefighters Case

The U.S. Supreme court decision in the Ricci v. DeStefano case is a landmark affirmative action case.

Basically, the court held that Frank Ricci and 17 other New Haven firefighters suffered illegal discrimination when a promotion test on which they achieved high-enough scores to be promoted was not certified by the city of New Haven because no African-Americans had scored high enough to be promoted.

Justice Ruth B. Ginsburg wrote a dissenting opinion in which three other justices concurred, basically arguing that the examinations violated the Civil Rights Act because of disparate impact discrimination.

The district court in New Haven had entered a summary judgment in favor of the City of New Haven, and an appeal was taken to the 2d Circuit Court of Appeals, where Sotomayor is presently a judge. Sotomayor and two other judges, in a one-paragraph unpublished summary order affirmed the decision in favor of New Haven.

Later, the unpublished summary order was withdrawn and in its place a nearly identical, one-paragraph opinion was issued adopting the district court’s reasoning. Three days later, the court of appeals voted 7-6 to deny rehearing by the full appellate court. Sotomayor voted to deny a full court rehearing. Two judges filed written dissents from the denial. One of the dissents states that the questions posed were exceptionally important “constitutional and statutory claims of first impression.”

Whether one agrees or disagrees with the U.S. Supreme Court or Sotomayor on the merits of the Ricci case is subject to legitimate debate. What is not subject to reasonable debate however, is the fact that Sotomayor exercised poor judgment in the procedure that she used to dispose of the case.

There is no question that the Ricci case presented issues of public and constitutional importance. Yet, Sotomayor inexplicably concluded that the case had no precedential value and was not even important enough to warrant a written published opinion. I believe that Sotomayor exercised poor judgment in handling the case.

How Sotomayor feels about the merits of the Ricci case is significant only with respect to whether, or to what extent, the disparate impact provisions of the Civil Rights Act are consistent with the guarantee of equal protection in the Constitution.

As Justice Scalia said in his concurring opinion: “The war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how — and on what terms — to make peace between them.”

Ergo, will we continue to have affirmative action laws or will they be held unconstitutional? Bear in mind that in 2003, Justice Sandra Day O’Connor stated in the Grutter case: “The court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” And four judges dissented from approving racial preferences in the Grutter case.

The 4th Amendment and the Exclusionary Rule

Having been a member of the judiciary and an appellate court judge for 20 years, I saw firsthand the importance of the 4th Amendment and the need and benefits of the exclusionary rule. It is for that reason, perhaps, that I am disturbed by the U.S. Supreme Court’s opinion in the Herring case, decided in January.

The gist of Herring is whether evidence obtained in an arrest that was made without probable cause and based on the erroneous existence of a warrant because of errors by police personnel can be used against an accused to convict him. The court accepted “the parties’ assumption that there was a Fourth Amendment violation.” Nonetheless, the court held in a 5-4 decision that the exclusionary rule did not apply. Why? Because the court applied a “good faith” test.

In other words, if the police believed that the warrant was valid that’s OK, even if the warrant was not valid.

I believe that the court’s decision is a bad one because I have seen too many cases where police officers have lied under oath and their “good faith” testimony lacked good faith. It should be remembered that a police officer is not an unbiased witness in a criminal trial. Rather, he is a witness on behalf of one of the parties — the government.

While almost all police officers are presumably honorable, dedicated public servants, the reality is that there are some who are not. Since an accused must be proven guilty beyond all reasonable doubt in a criminal case, the so-called good faith of the police is therefore entitled to no higher and no lesser application than the good faith of the accused.

I bring up the Herring case here because 10 years ago Sotomayor had a case in which virtually the same issue was involved and she too held that seized evidence was admissible against a defendant whose arrest was made without probable cause and without a valid warrant.

In the Santa case, the defendant moved to suppress the evidence as being the result of an unconstitutional arrest. Sotomayor held that the evidence should not be suppressed under the exclusionary rule.

The only difference between Santa and Herring is that in Santa clerical errors of court employees caused the warrant to be invalid, and in Herring errors of police personnel caused the warrant to be invalid. But the result of the two cases is the same: an erosion of the exclusionary rule.

What the public must appreciate — sooner or later — is that the more the exclusionary rule is eroded, the more their Fourth Amendment rights will be violated.

Thus, some people would have a more favorable view of Sotomayor as a Supreme Court nominee if she would have shown a proclivity for vigorously protecting what the Fourth Amendment guarantees. Some people may feel that we do not need another member on the Supreme Court who seems to agree with the existing members on the erosion of the exclusionary rule. There are others, of course, who feel that Santa and Herring were decided properly and look favorably upon Sotomayor’s decision in Santa.

The Deskovic Case

One person who does not believe that Sotomayor is a favorable choice for the Supreme Court is Jeffrey Deskovic. Here is what he has to say: “To hear that a judge who put procedure over innocence could be moving to a higher court is very upsetting to me.”

In 1991, when he was 16, Deskovic was imprisoned for killing a high school classmate. The conviction was in New York. In 1997, Deskovic retained counsel in Georgia to file his federal habeas corpus petition, claiming his innocence and that DNA offered proof of his innocence.

The attorney mailed the petition to the federal court in New York on April 24, 1997, and the court received and filed it on April 28. The attorney had telephoned the court clerk in New York, who said that the petition would be deemed filed as of the date it was mailed rather than the date it was received. Actually, according to the act for filing petitions for habeas corpus, the petition had to be filed by April 24. Thus, the petition was filed four days late.

The district court judge therefore dismissed the petition, and an appeal was taken to the 2d Circuit. The case was assigned to Sotomayor’s three-judge panel, but, due to illness, one of the judges did not participate in the oral argument or disposition of the case.

Sotomayor and the other judge on the panel disposed of Deskovic’s case by an unpublished disposition summary order of three paragraphs. In the summary order, Sotomayor stated: “The alleged reliance of Deskovic’s attorney on verbal misinformation from the court clerk constitutes excusable neglect that does not rise to the level of an extraordinary circumstance. Similarly, we are unpersuaded that equitable tolling is appropriate based on Deskovic’s contentions that the four-day delay did not prejudice respondent, petitioner himself did not create the delay, his situation is unique, and his petition has substantive merit.”

Thus, Deskovic spent six more years in prison, until DNA found in the victim absolved him of the crime and connected another man to the crime.

Deskovic spent 16 years in prison for a crime that he did not commit. Six of those years were after Sotomayor filed her summary order disposition. Deskovic is now 35. Since his release he has graduated from college.

In a sense, I guess that the Deskovic case demonstrates that Sotomayor is not an activist judge who will let empathy cloud her judgment and influence her decisions on the Supreme Court, which, for some, would make her a favorable choice. On the other hand, there are others who feel that her handling of the Deskovic case demonstrates that she is not a favorable choice and that she will do nothing to change the direction of an already conservative court.

Expectations

Sotomayor’s academic credentials are outstanding. She graduated summa cum laude and Phi Beta Kappa from Princeton, and graduated from Yale Law School after serving as an editor of the law review. Parenthetically, when she becomes a member of the Supreme Court, she will become the eighth member to have graduated from either Yale or Harvard. The one exception is Justice John Paul Stevens, who went to the University of Chicago and Northwestern.

Sotomayor also served as a district court judge for over six years, and as a federal circuit court of appeals judge in the 2d Circuit for over 11 years.

Her stellar background makes it absurd to even question whether she is intellectually competent, or whether she has the experience, to become a Supreme Court justice. Also, the significance of her presence as a Latina on the court, in and of itself, cannot be overstated. It is huge symbolically, as well as for bringing added sensitivity to the court on myriad issues.

Yet, it may be subject to debate whether she is a favorable choice to become a judge at this time on the present court. Despite outstanding academic credentials and her presence as an editor on the Yale Law Review, there does not seem to be a single law review article or legal position paper by Sotomayor that is drawing widespread praise.

In a sense the same passive significance is true with respect to her judicial career. She has been a reviewing court judge in a major circuit for over 11 years, and few, if any, of the opinions that she has authored are drawing high praise.

As a result, one cannot really assess her judicial philosophy, or even know her judicial philosophy. Thus, the expectations of Sotomayor going on the court and altering or changing its course, or of her becoming a visionary leader on the court, are not great.

These are important factors to consider, because if she cannot convince or win Justice Kennedy, a moderate flexible conservative, to her side, her presence on the court will go unnoticed.

Conclusion

There appears to be no question that Sotomayor is qualified and competent to become and will become a member of the Supreme Court. The question of whether she is a favorable or unfavorable selection by President Obama, however, is puzzling.

It is puzzling because it is too hard to state her judicial philosophy in any clear terms. Some may say that is good because it demonstrates that she is not an activist judge and will interpret the law as she finds it.

However, when she has been on a reviewing court for 11 years and one still cannot determine her judicial philosophy, it could also mean that the expectations are that she will do little to change the course or leadership of the present conservative court. If the latter is true, does that make President Obama’s selection a favorable choice? It depends.

About the author: Dom Rizzi is a former Illinois Appellate Court judge.

Back in May 2008, a law firm economics writer, Bruce MacEwen, warned in his Adam Smith Esquire blog, “There may be a bubble” in profits per equity partner.

And this month, Glen Ellyn law marketing adviser Larry Bodine wrote, ”When I first heard about lawyers charging $1,000 per hour … it was the sound of a bubble popping.”

Law firms that want to succeed in winning and keeping business from corporate clients above all will need to be flexible, says Jason L. Brown, director of legal affairs for PepsiAmericas Inc. in Schaumburg and president of the Chicago chapter of the Association of Corporate Counsel. Photo by Chris Bernacchi

In the April issue of California Lawyer magazine, Michael Roster, former general counsel of Stanford University, wrote, ”The legal profession … created its own economic bubble. Now that bubble has burst.”

As clear evidence, since Jan. 1, 2008, major firms have laid off on the order of 10,000 lawyers and staff workers, with more than three-quarters of the cuts coming in 2009.

The economic crash is in large part to blame.

But a number of observers of American law firms say there’s another key factor: the business model of the American law firm is broken.

”Some people have asked,” noted Gregg R. Melinson, chief marketing partner of Drinker, Biddle & Reath LLP, ”when the economy comes back, will things go back to the way they were? I really couldn’t disagree with that more.

”I really think this is a sea change and opportunity for [corporations and their outside counsel] to reinvent the model,” he said.

If so, what went wrong with the model and what can be done about it?

Roster called the ”pay war” that led top law firms to adopt a starting salary of $160,000 for entry-level associates ”the spiral to hell.”

Roster, a former chairman of the Association of Corporate Counsel, is chairman of the steering committee of the ACC’s Value Challenge, through which corporations seek to engage law firms in a dialogue about rejoining the concepts of ”costs” and ”value.”

Roster cites these other broken parts of the law firm model:

• Emphasis by legal publications on profits per equity partner, and law firms’ adoption of this as a measure of status.
• Inflated numbers of associates compared to partners in law firms to expand revenue that is then manipulated into profits per partner.
• Out-of-control associate turnover long before law firms started laying off lawyers.

Other law firm observers noted that despite law firms’ steadily increasing salaries, the firms maintained profits by raising prices.

Rate hikes have ”been a significant driver of firm profitability” since 2001, Mark Medice, national brand manager for PeerMonitor, said in mid-2008, before the bubble burst.

The compound annual growth rate for law firm rates has been above 6 percent for all timekeepers, mostly lawyers and paralegals, since 2001, Medice said back then. By comparison, the Consumer Price Index for American cities rose only in the range of 4.5 percent annually in the same time frame.

Thompson West’s PeerMonitor Index is an analysis of law firm economic indicators.

At least one study asserts that legal expenses in recent years rose far faster than other business expenses.

A recent report by the Corporate Executive Board found that large-company spending on law firms grew by 49 percent between 2002 and 2005, ”alarming CEOs and CFOs.”

The same report said that while non-law firm costs increased by 20 percent over the past 10 years, large law firms’ prices jumped almost 75 percent.

(The report was said to be based on data from 190 large companies and conversations with more than ”300 general counsel, in-house legal staff, procurement officers and law firm partners.”)

Roster, who formerly was the managing partner of Morrison & Foerster’s Los Angeles office, argues that law firms’ emphasis in recent years on profits per equity partner — or PEP — amounted to ”manipulation of a fraction.”

It led law firms in the good years to avoid discounts and to send out bills involving too many lawyers per matter, he said.

Morever, Roster said, law firms got rid of formerly useful practice areas, such as trusts and estates, because the profit margin was too thin and interfered with PEP.

And a law firm’s ‘’servicing partner,” who handled most of the informal inquiries from clients and was probably closest to those clients, became ”expendable.”

Servicing partners did not bill enough nor have enough associates under them, so they interfered with PEP, Roster said.

”You and I would think a servicing partner is a good thing,” Roster noted. ”He gives answers. [But] Oh, no.”

Law firms have told Roster that ”we have de-equitized most of our servicing partners,” he said.

During the years that high profits per equity partner became de rigueur among law firms, the bottom of the law firm worker pyramid has greatly expanded and the top shrunk in comparison.

Between 1995 and 2007, the total number of lawyers at large law firms increased by 77.2 percent, but the number of equity partners increased only 31.7 percent, according to Indiana University School of Law Professor William Henderson.

High ”leverage,” or a large group of salaried lawyers working for a small group of equity partners, ”can be a wonderful thing in boom times, but a killer in a down market,” Henderson noted last December.

Even with mass law firm layoffs, ”firms with the most human capital leverage will nonetheless be stuck with vast expanses of Class A office space,” Henderson wrote in the Empirical Legal Studies blog.

On the other hand, the Chicago law firm of Bartlit, Beck, Herman, Palenchar & Scott LLP, which Roster called ”one of the three best law firms in America,” has triple the number of partners (52) as associates (17), the reverse of many top law firms.

The Bartlit firm ”doesn’t believe in leverage,” Roster said. ”They believe it’s a stupid idea.”

The attrition rate of associates, Roster contends, has been another key malfunction in the modern law firm.

Before the current economic crash, associate attrition in large law firms had been ”up to about 20 percent” annually, Roster said, compared to what he estimated it was in 1973, about 12 percent.

Total associate attrition in recent years has been a whopping 85 percent before a few survivors of the associate class make partner, he said, based on his interviews with law firm leaders.

The result is ”the missing middle.”

”Where are the middle to senior associates?” Roster asked before the bubble burst. He said middle to senior associates were the ”people who really know the subject well and are very enthusiastic about their work. But the law firm pressures drive them out.”

The other serious effects of high associate attrition are very high recruiting and training expenses to constantly replace them.

”It costs $250,000 to $400,000 for every single recruit,” Roster estimated in a recent interview, ”to get them in the door. Then it takes a year or two … before they really know how to practice law.

”Up to now, firms got away with passing these costs on to clients,” Roster continued. ”Increasingly, clients are saying, ‘We can’t do this any more.’ ”

So what should law firms do?

First, law firms need to be more flexible, says Jason L. Brown, director of legal affairs for PepsiAmericas Inc. in Schaumburg.

”The complaint I hear the most” from other corporations and corporate counsel ”is that some law firms are not flexible,” Brown said in an interview.

Some law firms, he said, are agreeable, and ”will say, OK, is there a better way we can do this? Can we work on this billable hour thing? Can we work on a different mechanism to handle these matters?”

But other law firms are ‘’so kind of steeped in their ways of doing things,” Brown said, ”that the mere discussion about how to change is met with immediate tension.”

Brown is also president of the Chicago chapter of the Association of Corporate Counsel.

Corporations want to be able to make new deals with law firms to reduce corporate legal expenses. According to Brown, corporate departments that buy raw materials or other resources ”are able to make deals.”

For instance, information technology vendors, who represent a much younger enterprise, are quick to offer new service and pay arrangements when a client asks, Brown noted.

”I think it’s difficult for a law firm across the board to try to slash their billable hours,” he continued, ”but there may be more creative ways to do it.”

Brown suggested:

• Avoid charging the rates of mid-level associates for legal services ”that could easily be done by paralegals,” or in other cases, have those services performed far faster, and thus more cheaply, by a partner.
• Out-source document review and production and organization of documents for litigation or due diligence to a staffing company, or assign these tasks to a law firm’s own contract lawyers ”at a much cheaper rate.”
• Charge different rates for the same attorneys or senior paralegals, depending upon the type of work to be done.

And while variable rates may be appropriate under some circumstances, Roster said, flat fees also can be a useful tool.

Roster suggested that law firms could could agree to do all of a corporation’s work in a given legal category for one annual, flat fee.

”That’s what I did at Stanford years ago,” he said. ”I gave firms portfolios to do counseling and litigation for a fixed price: labor, environmental, medical center… My costs went down 25 percent. My litigation went down by half after five years.”

Roster was general counsel at Stanford from 1993 to 2000.

Similarly, Ivan K. Fong, chief legal officer at Cardinal Health in Dublin, Ohio, said in November, ”Rather than having hourly rates, we are increasingly negotiating flat fees or fixed fees or success fees.”

And then there is the matter of attrition.

Except for layoffs, the associate attrition rate at U.S. law firms is now about zero, since there are no alternate jobs available, according to Roster and others.

But in the good years, excess attrition was a highly avoidable expense, according to Roster and the ACC.

The ACC hired an economist, Dr. John H. Johnson IV, president of Criterion Economics LLC, to build a computer model of a modern law firm with numerous variables, including associate attrition.

According to Johnson, by adding only a 5 percent increase in associate attrition into the model, profits drop substantially (recruiting costs are high. The lost profits in the model can be replaced by raising rates, cutting overhead to the bone, or getting associates who remain to do far more work.

The ACC offers the model online for law firms to use.

”In one test,” according to Roster, ”we reduced the incoming class of associates for a typical large firm by half, and we reduced the attrition rate to what it had been a decade ago. While it may seem counter intuitive, firm profits actually increased by nearly 30 percent.

”This approach,” Roster adds, ”would almost certainly allow for better training and mentoring of associates, a happier work environment for associates and partners alike, greater continuity in staffing and a far more valuable work product from the client’s perspective.”

Corporations often tell the ACC they don’t want to pay to train new law firm associates.

The law firm computer model and user manual is available at the ACC online.

Brown of Pepsi and spokespersons for ACC argue that they are not trying to lower law firm profits.

Instead, Roster says, clients ”prefer less turnover of their [outside] lawyers, greater training and mentoring, leaner staffing of matters, rewarding so-called servicing partners who actually answer our questions with little wasted effort, and, most important, rewarding efficiences and outcomes.”

Chicago’s National Immigrant Justice Center lost two-thirds of a $720,000 grant to help detained immigrants when the JEHT Foundation, a major funder of the six-year project, went under in the wake of the Madoff scandal. The donors to the New York based foundation, which supported programs that worked toward criminal justice reform, had invested their funds with Madoff.

The goal of the NIJC’s Detention, Democracy and Due Process project is to reduce detention and to improve conditions and procedural protections for those immigrants who are detained pending removal proceedings. The project provides one-on-one help to detained immigrants, but also seeks to identify cases that would be appropriate to pursue as impact litigation.

In one of those cases, the NIJC helped win relief for a Nigerian woman whose mistake in filling out a confusing visa application led her to be detained in the McHenry County Jail for two years. Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. 2008).

Oscar Martinez, Eleni Wolfe-Roubatis, Hilda Tapia, Alfredo Martinez with son Jakob. Photo by Paul McGrath

”Given all the work we’ve done, having to curtail that would be harsh and harmful, not just to individuals but also to the system,” NIJC Director Mary M. McCarthy said.

McCarthy is scrambling to make up for the lost funding at a time when many different funding sources are feeling the pinch. She’s hoping to draw support from a new funder, as well as seeking increased support from other funders already involved with the project.

She’s also hoping for a good turnout at the NIJC’s fund-raiser, the Tenth Annual Midwest Light of Human Rights Awards, to be held June 19 at the Fairmont Chicago hotel. The keynote address will be given by Antonio Guterres, the United Nations high commissioner for refugees.

Claudia B. Valenzuela, a managing attorney at NIJC, pointed out that those in immigration detention have no right to court-appointed counsel and often have no idea how long they will be held. This puts intense psychological pressure on detainees, she said.

”Ultimately a lot of people who take deportation and leave return unlawfully,” Valenzuela said. ”It’s tough to see someone who faces danger or who has no one or nothing left in their home country say ‘I’d rather not fight my case,’ ” Valenzuela said.

McCarthy said that with President Obama’s recent announcement of the closing of the detention center at Guantanamo Bay, Cuba, more attention has been drawn to people in immigration detention in the United States, 800 in the Chicago area alone.

”We are at a critical moment in our history,” McCarthy said. ”There is a new context and an interest in ensuring we are preserving individual human rights.”

The NIJC’s funding loss, while dramatic, is just one of many examples of how legal aid agencies have been hard-hit by tough economic times.

”It was the perfect storm,” McCarthy said. ”That was the demise of Madoff. The economy was on the decline and people wanted their money and he didn’t have it.”

Funding problems are being experienced at:

• The Lawyers Trust Fund of Illinois, which uses interest on lawyers’ trust accounts to make grants to legal aid agencies, has seen its interest income plummet from more than $17 million in fiscal year 2008 to a projected $5.2 million in this fiscal year. Officials there had feared income could drop to less than $1 million next year. They now hope that a rule change by the Illinois Supreme Court will ensure about $2 million in revenue.
• The Illinois Equal Justice Foundation, which distributes state-funded grants to legal aid agencies, is waiting to receive $2 million of its $3.5 million appropriation for fiscal year 2009, with the money expected to come in May or June. The agency had long pushed for a budget increase to $5 million annually, about half the average of what the 10 most populous states spend on legal aid.

Now, in light of the state’s budget woes, level funding is the goal, said IEJF executive director Leslie Corbett. That’s not what she would have hoped for at at a time when bipartisan support for legal aid funding in the state legislature has never been greater and Attorney General Lisa M. Madigan is solidly in the foundation’s corner.

”We haven’t seen big layoffs [at legal aid organizations],” Corbett said. ”But next year if our budget is cut and the Lawyers Trust Fund is at a minimal level, there is going to be some pain.”

In addition to worries about the shrinking endowments of nonprofits, some leaders of legal aid agencies say they are concerned about declining donations from private law firms, who are facing their own financial struggles.

”The level of giving is down not just for legal aid organizations but for many different types of organizations,” said Lois J. Wood, executive director of Land of Lincoln Legal Assistance Foundation, which serves low-income residents of 65 counties in central and southern Illinois.

One bright spot is a recent $40 million increase in federal Legal Services Corp. monies, which means about $1.3 million in additional funding for three Illinois agencies: Land of Lincoln, the Legal Assistance Foundation of Metropolitan Chicago, and Prairie State Legal Services, based in Rockford.

But even in the best of times, leaders of legal aid agencies say they can serve only a fraction of those who need their help. A 2005 study by Legal Services Corp., for example, found that for every poor person who receives help for a civil legal problem, at least one more eligible person is turned away.

”It’s a giant juggling act all the time versus a backdrop of a really crushing need that on your best day you can only meet a fraction of,” said Diana C. White, executive director of the Legal Assistance Foundation of Metropolitan Chicago.

White noted that since the mid-1990s, when restrictions were placed on the types of activities that could be engaged in with funding from the Legal Services Corp., LAF has tried to diversify its fund-raising.

”Now that mix of funding looks pretty good to us because things don’t go badly all at the same time,” White said.

Still, she said, ”in legal aid none of us are as good as we ought to be at attracting donations from people who have nothing to do with the law.”

And the funding squeeze on legal aid agencies is coming at a time when the economy is ”hammering poor people,” White said. White said call volume has gone up at LAF, but it is hard to measure how much the demand has increased.

”If they are calling and all the lines are busy, it just rings and rings and rings and we know they are out there,” she said.

At the NIJC, the loss of JEHT funding is not the only challenge. The agency also receives significant funding from the Lawyers Trust Fund, and some of the attorneys who in the past have volunteered to do pro bono work have been laid off by their employers. At the same time, the NIJC is facing an increased demand for its services, McCarthy said.

”Part of that is economic-driven,” McCarthy said. ”People that used to go to private attorneys who were pretty reasonable just can’t afford it.”

McCarthy said the agency isn’t filling positions when employees leave and is looking for other ways to cut costs. Similarly, at LAF, White said the agency is forgoing its typical hiring of a class of six to eight attorneys and looking closely at every vacancy to determine whether it needs to be filled.

”We’re not trying to get smaller, but we’re not looking to get bigger now,” White said.

One potential boon for legal aid organizations is that some law firms are deferring start dates for new associates and giving them stipends if they work in public interest jobs.

”We’ve had several firms that would like us to take attorneys,” said White.

But White, pointing out the cramped quarters in LAF’s offices at 111 W. Jackson Blvd., said that presents challenges too, in terms of logistics and assignments for the deferred associates.

”You cannot put these people on meat hooks or bunk desks or something,” she said.

The Chicago Bar Foundation and the Public Interest Law Initiative are coordinating efforts to place deferred associates, she said.

Still, despite the challenges of her work, White said she sees a silver lining. When she was a partner at Jenner & Block LLP, White said, she was involved in cases pitting ”wealthy person A versus big company B.”

”It was not bad work, but none of it made much difference to the welfare of the world one way or the other,” she said. ”Sometimes now I can think that I’ve really made a difference.”

In a book slated for a May 18 release, Callahan gives a personal account of his review of a 1986 murder case that he says showcases a series of cover-ups and corruption by police and prosecutors that led to the wrongful conviction of two men and, eventually, the end his career.

Just days after ”Too Politically Sensitive” is set to hit the bookstores, Callahan said, the Supreme Court will decide whether to take another look at his case, which could involve a review of the 2006 ruling in Garcetti v. Ceballos, 126 S.Ct. 1951, 547 U.S. 410 (2006).

Cover of "Too Politically Sensitive" by Michale Callahan

”The big question in my case is two-fold,” Callahan said. ”Who’s going to police the police if they refuse to police themselves? And when you look at the facts of my case, does Garcetti mean that governments don’t have to be accountable?”

Callahan said he hopes the country’s highest court will agree to narrow what he said is a broad decision in Garcetti, which held that public employees’ speech is not protected by the First Amendment when the speech is pursuant to their job duties.

It’s been a long journey to get to this point, Callahan said. The issue arose long before Callahan’s court proceedings, which includes the 7th U.S. Circuit Court of Appeals May 2008 decision to overturn a jury verdict and $260,000 award in favor of Callahan.

In fact, Callahan claims, the alleged corruption began even before he was assigned to review the murder case of Dyke and Karen Rhoads. Shortly after producers of the television show ”48 Hours” contacted police about an upcoming episode set to highlight the double murder, Callahan was assigned to review the case, he said.

At that time, Bill Clutter, a private investigator, had already been in contact with state police in his investigation into the cases of Randy Steidl and Herb Whitlock, both of whom were convicted in the couple’s murders. Callahan is convinced that, if it were not for the television show and Clutter’s questioning, police might have never reviewed the case.

On July 6, 1986, the Rhoadses were found dead after the fire department responded to a blaze at their Paris, Ill., home. Karen, 25, was stabbed 26 times and Dyke, 28, was stabbed 28 times, Callahan said.

Six months and the announcement of a $25,000 reward later, Callahan said, two eyewitnesses, both of whom he said had documented mental health and addiction problems, came forward and implicated Steidl and Whitlock. Steidl and Whitlock were convicted; Steidl was sentenced to death and Whitlock got life in prison.

While Clutter may have had his doubts, Callahan said he initially had no reason to question the work of the Illinois State Police, where he began his law enforcement career in 1980. But, even before he started his review, Callahan said, red flags were raised when original investigators called him to say they got the right guys and not to make them look bad.

Once he began digging deeper into the case, Callahan said, the flags kept popping up.

Callahan said testimony given to police implicating others was never documented and that inconsistencies in eyewitness testimony showed a lack of credibility. And forensic testimony was able to prove that the believed murder weapon could not have been used in the stabbings.

His doubts filled a 10-page memo to his superiors that basically concluded that it would have been impossible for Steidl and Whitlock to have killed the newlywed couple.

Through their investigations, Callahan and Clutter believe there were more likely suspects, including a businessman who contributed to the campaigns of then-Illinois Attorney General Jim Ryan and then-Gov. George H. Ryan, as well as a pair of brothers.

It was also a possibility, Callahan said, that Whitlock and Steidl were framed because they had gone to the FBI with accusations of corruption by the police department and prosecutor in Paris, a town that played home to one of the pizza parlors involved in the infamous Pizza Connection case, which involved a Mafia plot to distribute heroin and launder the proceeds through a number of independently owned pizza parlors.

Callahan said that, in addition to the red flags he found in his review of the murder investigation, he was even more concerned when his superiors told him to stop investigating. He contends that one of his former superiors — Diane Carper — told him the case was ”too politically sensitive.” He eventually reported his concerns to the internal investigations unit about Carper and Steven M. Fermon, who Callahan accuses of blocking the reopening of the Rhoads case among, other ISP policy violations.

Shortly after his visit to the Department of Internal Investigations, Callahan was transferred from investigations to patrol, he said. He soon retired and brought suit against Carper and Fermon, claiming that they retaliated against him for speaking out on the case he says is plagued with cover-ups.

In April 2005, a jury found in Callahan’s favor, awarding him nearly $700,000 in damages, which were later reduced. But Carper and Fermon appealed to the 7th U.S. Circuit Court of Appeals, claiming that according to Garcetti, Callahan did not have First Amendment rights when he spoke about the murder case because he was speaking about it in connection with his job duties. The appeals court agreed in May 2008 and overturned the lower court’s decision and award. Michale Callahan v. Steven M. Fermon and Diane Carper, Nos. 05-4313, 05-4335 and 06-1098.

”Based on the record as a whole, we conclude that Mr. Callahan was speaking pursuant to his official duties — not as a citizen — when he spoke” at a state police academy meeting and to the Internal Investigation Division, the court held in its decision.

Callahan said he obviously was disappointed with the appeals court’s decision, but said he is more ”frightened” that Garcetti is controlling case that sharply limits freedom of speech.

”Never in my wildest dreams, never, did I fathom that when I put on that gun and badge to protect the citizens of Illinois that I stopped being a citizen,” Callahan said. ”The courts have effectively made employees too afraid to speak out when they see corruption … That’s scary, especially with everything happening in Illinois now.”

Looking back, Callahan said, there was at least one positive that came out of the case that continues to haunt him as it remains unsolved.

”They freed them,” Callahan said of Steidl and Whitlock. Steidl was released in 2004 following a U.S. district court order. Assistance from Clutter and the Downstate Illinois Innocence Project was cited in a 4th District Appellate Court opinion that led to Whitlock’s 2008 release.

Callahan said it is not his intention to bad-mouth state police in his book. Rather, Callahan said, he hopes his story will not only stress the need for justice in the Rhoads case, but also to open the eyes of the public to a situation that is tarnishing the reputation of the criminal justice system as a whole.

But what lies past the seemingly average wooden door is something that inmates claiming actual innocence consider to be an avenue that has the potential to deliver freedom.

This small office crowded with bookshelves and filing cabinets filled with thousands of court documents and police reports serves as the headquarters for the Downstate Illinois Innocence Project.

Situated within the university’s Institute for Legal, Legislative and Policy Studies, this project uses students to assist an experienced investigator and a pair of dedicated teachers to dig deeper into the cases of inmates who claim innocence.

Since its formation less than a decade ago, the Downstate Illinois Innocence Project has helped exonerate three wrongfully convicted Illinoisans and continues to reinvestigate other cases.

This semester’s assignment includes continuing the project’s work for a family of three convicted in the 1996 Decatur murder of the son’s ex-wife, and diving back into the 1989 murder of a young woman found stabbed to death in a Springfield cornfield.

The Project’s Beginning

Bill Clutter, a private investigator based out of state’s capital, remembers the day leaders in the national innocence project movement called on others to organize their own projects.

It was at a national conference he had attended to speak about his work in the 1988 retrial of a man charged with 10-year-old Jeanine Nicarico’s murder. Clutter’s investigation into the death penalty case led to the release of Rolando Cruz and Alejandro Hernandez, a case that served as a factor in the state’s decision to put a moratorium on the death penalty.

”It was very moving,” Clutter said, referring to the ”if the state had its way, I’d be dead today” chant spoken by the exonerees in attendance. ”I came back and I spoke with Larry and Nancy and, well, the rest is history.”

At that time, Nancy Ford was a professor of legal studies and public affairs at UIS and Clutter knew Larry Golden from their involvement in a voting rights lawsuit, which led to changes in Springfield’s city government.

The trio, along with Robert Schehr, who since leaving UIS started an innocence project in Arizona, were integral in the formation of the Downstate Illinois Innocence Project and complementing class that has a record of being filled to capacity.

Since its creation, the project, which receives a handful of requests each week, has never been state-funded. About $250,000 was appropriated to the project last year, but former governor Rod R. Blagojevich vetoed the project out of the budget.

Relying on private donations and grants, both Clutter and Golden say the project has been in financial struggles for some time. Clutter is paid for his work through the Capital Litigation Trust Fund, and Golden volunteers his time as co-director and the students participate with the hope of a passing grade.

”You can’t buy what we’re doing for less than hundreds of thousands of dollars,” Golden said. ”The state is going to have to find a way to either work with groups like us or find other ways to help people who are at this point in the process, whether it’s extending the assistance of OSAD [Office of the State Appellate Defender] through the post-conviction stage but that void is a critical void and that is exactly where we are stepping in.”

The Project’s Success Stories

Matt Smith was a student in the inaugural Innocence Project class. He said he signed up for the class, not knowing what to expect.

”Looking back, I can see that it changed my life forever,” Smith recalled during a recent visit to UIS, where he accompanied Keith Harris, the project’s first exoneree, to speak before this semester’s class.

Smith had been assigned to the case of Harris, who was convicted of armed robbery and attempted murder in Belleville. Harris spent 22 years in prison after the victim misidentified him in the seventh lineup in which he appeared.

While incarcerated, Harris maintained his innocence, which was later supported by evidence discovered in the Innocence Project investigation. In 2003, Harris received a full pardon from the governor and his case served as an example of the flaws found in the police lineup process.

Before a class of about 20 students on a recent Monday evening, Harris told the nightmare of his wrongful conviction. He also recalled the faith and friendships he formed in the process. He and Smith remain friends to do this day.

”It was unbelievable,” Harris said of his release. ”I give thanks to the university because you all are very important to me and I’m here to encourage you all to continue in your innocence work.”

Besides Harris, the project’s success stories include Julie Rae-Harper and Herbert Whitlock.

Without any physical evidence presented, Harper was convicted of the 1997 murder of her 10-year-old son in Lawrenceville. After Clutter was able to link case details to murders of confessed child serial killer Tommy Lynn Sells, the project was able to obtain a confession from Sells, eventually leading to Harper’s acquittal in a retrial.

In 1987, Whitlock and Randy Steidl were convicted of the murders of newlyweds Dyke and Karen Rhoads in the small town of Paris. Whitlock was sentenced to life in prison and Steidl was sentenced to death.

In 2003, U.S. District Court Judge Michael P. McCuskey ordered a new trial for Steidl, a decision that Illinois Attorney General Lisa Madigan did not appeal. Steidl was released in 2004.

Three years later, the 4th District Appellate Court cited the work of the Innocence Project in a decision that led to Whitlock’s January 2008 release. Police continue to the investigate the murders; no one has since been charged.

The Project’s Current Cases

Ryan Williams, a UIS senior and aspiring attorney, took the Innocence Project class last semester with John J. Hanlon, an attorney with the Office of the State Appellate Defender. Each semester, Hanlon and Golden switch teaching the class. After being ”inspired,” Williams joined the project as an intern this semester.

”There’s classes you take and you learn things from and there’s classes you take and you don’t learn anything,” Williams said. ”But occasionally you take a class and you really take something away from it and this is that class. It really has been life-changing for me.”

Williams spent time last semester looking into the 1996 murder of Karyn Slover, whose dismembered body was found in Lake Shelbyville, near Decatur. Slover’s ex-husband, Michael Slover, Jr., and his parents Michael and Jeannette, were indicted in 2000 and later convicted.

The Innocence Project continues to work on their case, contending that the trio was convicted without any evidence. The project also argues that Slover’s real killer could be walking free, noting that a key piece of evidence — a bloody fingerprint on the bridge that garbage bags containing Slover’s body were dumped from — did not match any of the defendants.

Under the direction of Clutter, Williams and other students are reinvestigating the 1989 murder of Melissa Koontz and the subsequent conviction of Tom McMillen. He has continued to maintain his innocence since he and three others were convicted of the murder.

Golden said that, like many of the cases the project deals with, McMillen was convicted without a motive or physical evidence using testimony from jail house snitches. The project has since obtained affidavits from two of the convicted men, recanting their confessions.

With new technology that wasn’t available at the time of the murder, the project is asking that a fingerprint found on Koontz’s car is entered into the Automated Fingerprint Identification System (AFIS) and that pubic hairs found on Koontz’s body as well as her clothing be tested for the presence of DNA.

Golden said the project is working with police on its reinvestigation and, in the meantime, will continue the project’s other mission of reforming the system to prevent wrongful convictions from happening in the first place.

The Project’s Future

Earlier this spring, Clutter testified before the Illinois Joint Committee on Government Reform on issues stemming from his Freedom of Information requests to the Illinois State Police. The project wanted to know whether the bloody fingerprint in the Slover case had ever been entered into AFIS.

The requests were denied on the basis of a contention by the state police that such information was exempt from FOI because the case was still pending. Clutter argued that police investigations were not pending, explaining that the Slovers had a pending motion for fingerprint testing under section 5/116-3 of the Criminal Code of Procedure.

In 2006, Golden testified before the Death Penalty Reform Commission, assisting in the formation of recommendations. The project is also working with several lawmakers on Senate Joint Resolution 6, which would create the Illinois Justice Study Commission to study non-capital wrongful conviction cases.

”We’re not just trying to solve the cases anymore,” Golden said. ”We are trying to solve the problems behind the cases … being here in the state capital, I see us moving more and more into the area of policy and reform.”

Phil Miatkowski, a sophomore at Lake Forest College, works on his laptop in his dorm room in May. Miatkowski keeps his friends informed about legislation to legalize civil unions in Illinois.

SPRINGFIELD — Hundreds of state laws unacceptably discriminate against the gay community, according to one Chicago lawyer who hopes the winds of change may soon sweep through Illinois.

James P. Madigan is the interim executive director of Equality Illinois, a gay-rights advocacy group pressing for what it calls ”marriage equality” — legal recognition of marriage rights for gay couples.

Madigan’s basis for critiquing Illinois law is perhaps one of the most basic principles of that law — equal protection.

Article 1, section 2 of the Illinois Constitution provides that ”No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.”

Banning same-sex marriage and civil unions, Madigan says, specifically denies gay couples the right of equal protection. According to Madigan, the Illinois Human Rights Act prohibits discrimination in housing, employment, real estate transactions and credit access based on sexual orientation, but those protections do not extend to other areas of everyday life.

”What you have in Illinois is this circumstance where we say that we’re not going to discriminate anymore based on sexual orientation, but hundreds of Illinois laws are made accessible specifically by the vehicle of marriage,” said Madigan. ”By excluding gay people from that and not creating any sort of structure for them, it means they are essentially shut out from all of those facets of Illinois law.”

Madigan said he hopes to change the marriage situation in the state the hard way — by pushing legislation to allow gays the same legal rights and privileges enjoyed by straight married couples.

Leading the charge in the legislature is Rep. Greg Harris, D-Chicago, one of two openly gay members of the General Assembly. Harris worked with Madigan to craft House Bill 2234, which would create the Illinois Religious Freedom Protection and Civil Union Act, attempting to balance the beliefs of religious groups with the desire to share in the rights of married people. The bill specifically absolves religious groups of any requirement to solemnize or officiate a civil union.

Harris said that while full marriage equality is the ultimate goal, there still is some discomfort in the general population about calling a same-sex marriage an actual marriage because of religious beliefs.

”But,” Harris continues, ”people very much seem to believe in the basic fairness issue and giving people certain contractual rights.”

Harris’ bill would put civilly united couples — same- or opposite-sex — on the same legal footing as married couples by giving them the same legal obligations, responsibilities, protections and benefits as spouses, whether derived from statute, administrative rule, policy, common law or another source.

The measure, if passed, would bring Illinois in line with four other states that officially recognize gay couples’ rights to legally share property, finances, inheritance and health care.

”When I talk to my constituents, when I talk to people around the state, it’s very clear that there are real equity concerns here,” Harris said. ”People are being denied even the simplest of benefits, like being able to go to a hospital room with a partner or participate in health care decision-making because of the status of Illinois law currently.”

The equal protection argument gained significant momentum recently when the Iowa Supreme Court ruled that a law in that state specifically banning gay marriage violated the equal protection clause of the state’s constitution.

”We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective,” the seven-justice court concluded in Varnum v. Brien. ”The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification.”

Harris said the decision represented a nationwide movement in which ”basic rights of fairness are being extended to all citizens.”

”I’m thrilled,” Harris said, expressing hope that the decision would strengthen his own equal protection argument. ”It certainly doesn’t hurt it.”

But Harris is working through the legislative process, not the judicial process, a deliberate choice on his part.

”It may be a little bit more time-consuming, but then no one will be able to ever say, ‘Oh, it was just activist judges,’ or whatever,” Harris said.

And Harris knows how difficult the fight may be.

He intentionally separated civil unions from same-sex marriage, placing each on distinct bills in the hope that the former would not be bogged down in the debate over the latter.

To some extent, the strategy has paid off. Harris’ same-sex marriage bill, HB 178, remains relegated to the House Rules Committee, a catch-all for bills of which House leadership isn’t particularly fond, while the civil-unions bill has advanced as far as third reading in the House as of early April.

Even so, civil unions in Illinois face opposition.

The Alliance Defense Fund, a conservative legal organization based out of Scottsdale, Ariz., is opposed to both civil unions and same-sex marriage. ADF senior legal counsel Austin Nimocks dismisses out of hand the equal protection argument, instead saying that children raised by same-sex couples are deprived of the defined gender roles played by a mother and father.

”I think that Rep. Harris and his supporters of civil unions miss the point,” Nimocks said. ”Marriage was not created for adults. Marriage was created for children, and so when we want to talk about rights and equal rights, the first discussion needs to be about kids.”

Reacting to the Iowa Supreme Court decision, ADF senior legal counsel Doug Napier said the high court had ‘’simply disregarded the overwhelming majority of Iowans.”

”It’s very interesting when you read the opinion, you see that the Iowa Supreme Court gives lip service to the idea that all political power is inherent in the people,” Napier said. ”And yet [the court] then looks at the constitution which was put in place by the people, and the court would say belongs to the people, and then says ‘yeah, but you’ve got to read this in light of changing times.’ And the people haven’t consented to that.”

But the Iowa high court addressed that issue in its unanimous decision, holding that a ‘’statute inconsistent with the Iowa Constitution must be declared void, even though it may be supported by strong and deep-seated traditional beliefs and popular opinion.”

If the average Iowan opposes same-sex marriage, as Napier suggests, the state could pass a constitutional amendment specifically banning the practice if both the Iowa legislature and a majority of Iowa’s voters support it. That is not unheard of — the supreme courts of Hawaii and California have each ruled in favor of allowing same-sex marriages, but subsequent constitutional amendments reinstated the ban in both states.

Regardless of what happens in Iowa, another recent development has set a precedent that is hard to ignore.

In early April, Vermont became the first state to pass legislation legalizing same-sex marriage. That state’s House and Senate even overrode a gubernatorial veto of the measure, putting Vermont in the company of Connecticut, Massachusetts and Iowa, whose allowances of same-sex marriage are the results of court decisions. Connecticut’s legislature recently voted to legalize same-sex marriage, affirming the decision of that state’s high court.

”Obviously I think every positive step like this helps set the tone and set the stage better here in Illinois,” Harris said in response to Vermont’s legislative move, while cautioning that a victory in other states is not the same as a victory here.

”Fellow [House] members look at what other states are doing, but also look at the fact that we’re here to serve Illinois,” Harris said. ”What happens in Vermont or Iowa or California is interesting and possibly instructive, but we still are Illinois legislators and have to listen to the people back home.”

Harris said he hopes HB 2234 has the support to pass when he calls the bill for a vote this session, but he does not take anything for granted. If civil unions are adopted in Illinois, he may press for full same-sex marriage, Harris says, but he would most like to see such recognition at the federal level.

”I think that will come with time,” Harris said. ”What period of time that will be, that’s hard to say. People will see that this is a good thing.”

Last year, Stroger mounted an effort to fire Burnette and then dropped that plan in May 2008. But litigation in the matter continued.

On March 30, the 1st District Appellate Court issued a ruling favorable to Burnette. The following day, Burnette signed a consent decree with Stroger that settled the power dispute between the two in the public defender’s favor.

The Cook County Board approved Cunningham’s appointment in mid-March.

The office he now heads comprises some 670 employees, including about 470 lawyers, and has a current annual budget of approximately $47.5 million.

The public defender’s office represents thousands of defendants in their criminal cases.

Cunningham, 61, received his undergraduate degree from Fisk University in Nashville in 1969. Three years later, he graduated from Northwestern University School of Law and was admitted to the Illinois bar in May 1973.

Abishi Cunningham

Cunningham’s initial job out of law school was working as a legal assistant for what is now the State Board of Education.

He also served as a supervising attorney for the now-defunct criminal defense consortium, an alternative to the public defender’s office. Cunningham then worked briefly in private practice and later joined the Cook County state’s attorney’s office, where he rose to chief of the 1st Municipal District.

Cunningham joined the Cook County Circuit Court as an associate judge in October 1986. He retired from the bench on March 31.

Law Bulletin staff writer John Flynn Rooney interviewed ”A.C.” Cunningham on April 15 in an office at 69 W. Washington St. Here are excerpts of that exchange:

What are your initial impressions about the office?

Having met a lot of the people in this building and having gone out to 26th Street [and California Avenue, where the Criminal Division is located] … my initial impression is that the office is full of dedicated people who want to serve the citizens of Cook County and there are some great lawyers here.

Have you experienced any crises yet?

We are all facing the crisis with the Capital Litigation Fund [that is used to pay experts in capital cases] that is depleted, and the question is how do we move forward between now and September? We have cases set for trial and we really need funding to properly represent our clients.

Are there options being considered?

I know we’ve contacted the state treasurer’s office to try to see if any more money can be allocated to us in that vein, and we are considering other options and what to do in case we can’t get the money from the state treasurer.

What are the biggest challenges facing the office?

This office is not unlike any other institution that depends upon money to operate. We all know that there is a global financial crisis going on now and it’s affected other institutions and it affects this office. What we need is financing.

How are you going to deal with the hiring freeze in place in Cook County?

From what I understand, there are certain circumstances and different circumstances where I can appear before the County Board and ask that exceptions be made for purposes of hiring. Until such time as I can assess the needs in this office in terms of personnel, and once that’s done, then I will appear before the board and ask that exceptions be made to the hiring freeze.

What kind of management principles and technology advances do you plan to utilize to improve the efficiency of the office?

I would like to get as much feedback from those people I trust in regards to the issues that come up in the office.

I think I’d like to assess the office in terms of its use of technology. I think that with the advancements that have been made in technology, especially those areas in how it’s been utilized in law offices, maybe through a better use of the technology that we may have or have to acquire, that we can operate more efficiently and still offer better representation for our clients.

Would that mean that there would be less use of employees?

I don’t necessarily think it will call for less use of humans. Just in terms of filing systems, case managements systems, I think a lot of what’s being done in the office now is paper-driven. Even the [Cook County Circuit Court] clerk’s office and other agencies have moved toward electronic filings. So, I think that will be one of the areas maybe we can make some advances in.

Describe your relationship with County Board President Todd Stroger.

My relationship with him has been one that is very communicative. When I was first asked if I was interested in filling the position, I told him yes. I sat down and discussed with him what my vision for the office would be. After that discussion, the nomination was made.

Since my nomination and my confirmation, I don’t believe I’ve had a conversation with him. But I did assure President Stroger, as well as all the Board members, that there will be an open line of communication between this office and the County Board and the president. That’s something that every commissioner I sat down with and talked to in regards to my nomination asked me is how open I would be in terms of communicating with them. I assured them that the lines of communication would be open.

Do you anticipate having any difficulties with President Stroger over hiring and firing of employees or who controls the office?

No.

Did that come up at all in your discussions with President Stroger?

No.

When do you plan to reach out to the area law schools concerning the Illinois Supreme Court Rule 711 program (allowing law students to argue cases under the supervision of a licensed attorney) and how many students do you expect to participate in that program?

I think we probably have already reached out to law schools or some law schools have reached out to us in terms of a 711 program and exactly how many, I don’t know. But it was brought up in a conversation that I had in a meeting with my top staff members yesterday. One of the things I want to do is form an advisory committee, which will be composed of a representative from each of the law schools in the city of Chicago and to include members of the private bar on an advisory capacity, so that we can sit down and discuss issues that concern our office and to listen to any suggestions they may have as to ways we can better implement mechanisms to provide a better service to the people.

I do want to generate more of an interest of law students upon graduation becoming public defenders because we have a lot to offer in this office. I think that there are young law students out there who have a lot to contribute. There’s an interest there. I just want to be sure that we can provide an avenue for that interest.

What are your personal challenges in taking the helm of the public defender’s office?

Probably learning how to delegate. Having been a sitting judge for 23 years, I pretty much was in a position where I made decisions and those decisions were followed. Now I’m in a situation where I … know one person can’t do everything. So, understanding that and making sure that I have people that I can trust and I can ask to do things and help me is very important.

How will your background as a judge affect your management or leadership style?

Well, as a judge there are always two sides to the issues that we have to decide, and we’re called upon to listen to both sides. Then, based upon the law, a decision has to be made. So, I think that I bring with me the ability to listen to a lot of different opinions, take those opinions into consideration and, after I’ve done that, I can make a decision.

Describe your management style.

Participative, meaning that two of my closest friends — Patrick [G.] Reardon is my first assistant and Mary Carol Farmar is my chief legal counsel — agreed to embark upon this with me. I trust their opinions. I trust them infinitely. I trust them to tell me even when they don’t agree with me. I expect that from any other manager or supervisor in this office, to be able to sit down and discuss with them the issues that may confront this office. [I want them] to give me their views, and based upon their input we can make a decision.

I don’t like to micro-manage people. I believe we are professionals and should do our duties as professionals.

What do you believe the public defender’s office does best?

Well, of course, representing our clients. I believe we do an excellent job at that. But one of the things I thought about in regards to this question is we manage to do a lot with little. Even with the budget constraints, I think that we still manage to provide a superb service to our clients and we will continue to do so.

Given that there there are budget constraints from the federal to the local level, is there any creative thinking going into how to attract more funding?

One of the options we’re exploring is through grants. I would like to see just how active we can be in terms of applying for grants and maybe finding grants that help supplement the budget that we have.

What’s the best thing about the job thus far?

Serving the underserved.

Do you expect to go into the courtroom and handle any cases?

It’s too early for me to say that at this point. Right now, my focus is trying to get a handle on the operations of this office.

In an effort to help lawyers manage their careers and find that next legal job, the Law Bulletin Publishing Co. and The John Marshall Law School are co-sponsoring ”Attorneys in Transition,” a free panel discussion and networking event from 8 a.m. to 11 a.m. on May 8 at The John Marshall Law School, 315 S. Plymouth Court.

This free event is a chance for lawyers going through transitions in their careers due to the economy to network with other lawyers facing similar situations and to learn valuable information about finding a new job.

The panel will include Alexis Reed, attorney search director at Special Counsel; Jeffrey C. Simon, vice president-financial consultant at RBC Wealth Management; David S. Glynn, director of research and product development for Law Bulletin Publishing Co.; Leonard F. Amari, senior partner and a founder of Amari & Locallo; and Cliff Scott-Rudnick, a visiting professor at The John Marshall Law School.

After the May 8 event there will be three smaller networking and informational gatherings, with a different speaker at each free event. Each will be held from 9 a.m. to 11 a.m. at John Marshall, and there will be time for lawyers to make connections with each other and the speaker.

On May 11, Julie Paradise, president of Communication Strategies Co., will offer practical tips for networking and improving face-to-face communication. On May 18, Bob Glaves, executive director of The Chicago Bar Foundation, will talk to lawyers from a pro bono perspective. And on May 26, Billie Watkins, a division director of Robert Half Legal, will discuss the legal job market and present practical advice for landing that next job.

Michael B. Kramer, senior vice president and publisher at the Law Bulletin Publishing Co., said the company has an obligation to help lawyers as they deal with this tough economy. The company has a strong relationship with John Marshall and was happy to partner with the school on a worthwhile event like this, he said.

”It is our duty and responsibility to reach out and help lawyers because they are part of the community we serve,” Kramer said. ”There is a crisis going on. We need to pool our resources. We have to assist them. And when the economy does turn around and come back, the attorneys we have helped will be our friends forever.”

John Corkery, dean and a professor at John Marshall, said the events will provide those who attend with an opportunity to talk about their situation, and possibly to get some new ideas about what their next steps should be.

”I hope they would walk away with perhaps some new thoughts about different avenues that they could try, and a realization that a lot of this is not personal; it is coming from the economy,” he said. ”Very few people are immune from the effect of this economic downturn. Lawyers are pretty smart people. Getting lawyers together and brainstorming and getting them to think about how a problem affects us all is a good thing.”

Reed, from Special Counsel, said she wanted to participate in the May 8 event for professional and personal reasons. From a personal perspective, she is a former practicing attorney who knows that the job market and the profession itself can be tough. At the same time, she said, she’s in a position professionally to help lawyers find a new opportunity.

”I keep hearing that the job market is grim and bleak,” Reed said. ”And I think that is the wrong perspective to take. There are fewer positions available, but there are positions available. It’s a matter of really networking, and making sure they are following up on every lead and resume submission so that attorneys out in the market right now find themselves in line for those open positions.”

For those lawyers who believe they’ve tried every avenue, she said, ”Start thinking outside the box. If you’re only networking through the CBA, try chambers of commerce… Consider opportunities that may not necessarily be ideal — contract or temp-to-hire. Give every opportunity that comes across your plate a full view, and full consideration.”

Simon, a certified financial planner at RBC Wealth Management, said he wants to help lawyers at the May 8 event by providing financial guidance so they make the right decisions. He wants to give them the resources, and show them where to get answers to their questions so they don’t make any wrong, irreversible decisions.

”I believe that right now we’re at a point in time in our history that most people have not seen economically during their work life, especially attorneys,” Simon said. ”I like helping people; it’s part of being a certified financial planner.”

Paradise, from Communication Strategies, said she’s spent more than 20 years as a consultant who provides communication advice and training to attorneys. One of her concerns is how lawyers handle the delivery and content of their face-to-face meetings. In a job interview, delivery trumps content, and lawyers do not always understand that, she said.

At the May 11 event, she plans to provide practical suggestions for networking and interviewing, she said. Networking is about so much more than simply exchanging business cards, she said.

”I will focus on what I know best: how to really maximize the impact that you make in face-to-face meetings,” she said. ”But I will also talk about how to get face-to-face meetings… People have to be more creative today in a job search. Just going on traditional interviews and sending out resumes is just not going to work for even the best and brightest people. I’m also going to give them the chance to talk to each other because people learn from others in the same situation.”

Check-in, a continental breakfast, an exposition and networking are slated for 8 a.m. to 9 a.m. on May 8. The panel discussion and additional networking are from 9:15 to 11 a.m. For more information visit AttorneysInTransition.com.

Because space is limited, advance registration is required. To register, send an e-mail message to jobs@lbpc.com with the following: Name; address; year of law school graduation; practice areas, and e-mail address (Write “Attorneys in Transition” in the subject line of
the e-mail).

If you are interested in attending any of the follow-up networking events on May 11, 18 and 26, send an e-mail message to jobs@lbpc.com and put the date of the event in the subject line.

You may attend more than one of these events.

Olivia Clarke is assistant editor of Chicago Lawyer magazine and co-chair of the “Attorneys in Transition” programs.

The number of pro se litigants is expanding rapidly in the recession as more people face the loss of homes, eviction from apartments and lawsuits and judgments for unpaid debts.

The pro se phenomenon has become so widespread that there are talks with the Cook County court system of dedicating as much as an entire floor of the Daley Center to pro se advice desks, according to Robert A. Glaves, executive director of the Chicago Bar Foundation.

Stephanie Berube works at the Daley Center Legal Advice desk in April for those needing legal aid. The desk is located on the sixth floor in room 602 at the Daley Center. Photo by Chris Bernacchi

”If you think about all the people coming in pro se every day, there’s thousands a day, I’m guessing, close to that much, including Traffic Court,” Glaves said.

Ten help desks for pro se litigants already exist in Cook County in scattered locations.

They are staffed by legal aid lawyers or, in at least one case, by employees from the office of Chief Judge Timothy C. Evans.

As a snapshot of the recession and of the pro se phenomenon, here is a sample of what’s happening in local courts.

Contract and tort non-jury section

Seven courtrooms on the 11th floor of the Daley Center are dedicated mostly to disputes over contracts, with 105,000 cases now pending, according to Associate Judge Daniel T. Gillespie, who is the assignment judge for all seven rooms.

These are ”overwhelmingly … creditor cases,” Gillespie said, filed primarily by credit card companies or collection agencies.

”Capital One is suing 14,000 defendants on the 11th floor,” Gillespie noted.

Creditor cases have tripled in Cook County in six years. The majority of defendants have no lawyers.

”Therefore,” Gillespie said, ”you could say that pro se cases have tripled.”

Pro se defendants trying to negotiate with the collectors’ lawyers are a common sight in the 11th-floor hallways.

Thousands more defendants in collection cases don’t appear at all and lose by default, said Associate Judge Thomas More Donnelly, who is doing research on these courts.

The number of default judgments in these courts has increased 27 percent since 2005, Donnelly said, rising from 54,086 in 2005 to 68,536 in 2008.

Municipal Court Advice Desk

In the midst of this flood of creditor cases where most defendants have no lawyer, three legal aid attorneys in Room 602 of the Daley Center operate the Municipal Court Advice Desk.

The three can help about 25 pro se litigants a day, said Catherine A. Schneider, supervising attorney for that desk.

They turn away atleast that many because they can’t serve all who come, Schneider said.

The three lawyers are on track to help about 6,200 pro se litigants in fiscal year 2009, according to their boss, Allen C. Schwartz, executive director of the Coordinated Advice and Referral Program for Legal Services, or CARPLS.

The number 6,200 may seem small in comparison to the flood, but it is up almost 50 percent from the era prior to March 2008, when the desk was staffed by only one lawyer and by law students from Chicago-Kent College of Law, according to the circuit court.

Pro se litigants who seek help at the municipal court desk also face debts from medical problems, personal loans and payday loans, Schneider said.

”You see people who a year ago were middle class,” noted CARPLS attorney Melissa K. Samuels, who works at this desk. ”They got laid off” or had a serious medical problem ”and suddenly they now are low income.”

The same desk also helps numerous pro ses who face eviction from apartments, plus pro ses in a variety of less common contract cases.

Supplementary proceedings and miscellaneous remedies section

The post-judgment collection court for all of the judgments rendered on the 11th floor is in the Daley Center’s Room 1401.

Here plaintiffs seek to persuade the defendants to pay the judgments or seek to garnish defendants’ wages or seize bank accounts and other assets.

”Last year we served more cases than any previous year,” observed Circuit Judge Michael B. Hyman. ”Ninety percent of the cases in our courtroom, there is at least one pro se litigating.”

Once in a while, both sides are pro se. But almost always, the debtor is pro se.

”Ninety-eight percent or so of the creditors are represented by counsel” in Room 1401, Donnelly noted.

The caseload in Room 1401 has grown from 120,000 in 2006 to at least 132,000 in 2008, or as many as 600 to 700 cases a day, Hyman said.

Donnelly said that what troubled him ”was the lack of an adversarial quality” to the proceedings. Creditors would move to freeze bank accounts or garnish wages, and ”the debtor could not make any legally coherent response.”

”People say, ‘What do I do, judge?’ ” Donnelly said.

The debtor might even have a legitimate defense of which he or she is unaware, but Donnelly noted that the judge is barred by ethical rules from becoming an advocate for the debtor.

At the request of Donnelly and his then-partner in room 1401, Associate Judge Sanjay T. Tailor, Evans and Circuit Judge E. Kenneth Wright, the presiding judge of the 1st Municipal District, arranged to have CARPLS create a new legal aid desk for Room 1401 in 2005 called the Collections Advice Desk.

Hyman, another reformer, personally rewrote most of the dozen-plus legal forms used in Room 1401 to make them easier for pro se litigants to use.

Hyman, Donnelly and Tailor are in other courtrooms now due to routine rotations. Room 1401 is now presided over by Associate Judge Patrick J. Sherlock and Circuit Judge James E. Snyder.

Collections advice desk

This desk is a cubbyhole office entered through a doorway in the wall of Room 1401.

To face the flood of 120,000 or more cases in that courtroom — 90 percent pro se — this advice desk has two staff attorneys. On Monday and Tuesday the desk also has one additional lawyer who works pro bono.

The Collections Advice Desk is on track to help 3,000 pro se litigants in fiscal year 2009, according to CARPLS.

Pro ses who seek advice here are typically ”defendants whose bank accounts are frozen or wages garnished” after judgments were rendered against them in debt collection cases, according to CARPLS attorney Ashlee B. Highland.

Creditors with judgments in hand can legally get bank accounts of debtors frozen. But banks are supposed to leave certain funds exempt, such as direct deposits from Social Security or child support payments, Highland said.

”Some banks are doing it properly,” she said, while others are not.

Also, state law allows a debtor to protect up to $4,000 in what is called a ”wild card exemption.”

Pro se litigants rarely know any of this.

”My organization helps people go to court to claim those exemptions,” Highland said.

According to CARPLS, exemptions are granted in 88 percent of the bank freeze cases this desk handles. Exemptions or deductions are granted in 43 percent of the wage garnishment cases this desk handles.

Chancery Advice Desk

In 2008, Cook County had 43,876 mortgage foreclosure filings. In the first three months of this year, the county saw 13,296 more mortgage foreclosure filings.

In the Daley Center, 14 judges hear mortgage foreclosure cases, according to attorney Lorinda J. Vancura. She is supervisory attorney for the Chancery Advice Desk for pro se litigants operated by the Chicago Legal Clinic.

This desk typically can help 30 pro se litigants a day, judging by its first-quarter statistics. It has two staff attorneys and, on an average day, one additional volunteer attorney.

Together, they have helped 1,796 pro ses in the first quarter of 2009, up 18 percent from the same period in 2008.

”In recent months, the demand has expanded such that we have not been able to accommodate the large numbers..,” Vancura said. ”We routinely have two-hour wait times to see an attorney. Some days we have to close intake prior to 4 p.m. because we have hit capacity for the day.”

Located in Room 1303 of the Daley Center, this desk helps pro ses in all Chancery cases, but Vancura said the majority are foreclosures.

In 2005, she said, 65 percent of the pro se litigants at this desk wanted help with foreclosures. ”Now it’s about 90 percent.”

Small Claims Pro Se Help Desk

Surprisingly, in what may be the original pro se help desk in Cook County, founded by the chief judge in the 1970s, the number of new cases is in steep decline.

”It’s declining due to the court fees,” said Roberto Velazquez, supervisor of the desk. ”It costs a fortune to file a case these days.”

There were 1,042 new cases at this desk in 2004 but only 554 in 2008, a drop of 46 percent.

Small claims lawsuits are for ”out of pocket” damages of $1,500 or less. Claims of punitive damages and mental anguish are not heard in Small Claims Court.

The filing fee for a case with damages up to $250 is $101.

For claims claiming damages of $1,000 to $1,500, the filing fee is $159. Plus it costs $60 for the sheriff to serve papers. Serving papers by certified mail, when possible, is $11.31.

The employees at this desk work for the chief judge’s office and are not lawyers. They help pro ses with paperwork in small disputes over such things as automobile damage, the denial of unemployment benefits or tenants trying to get security deposits back.

When told the filing fees, according to Velazquez, ”Some people turn around and say, ‘Whoa, whoa. No way.’ ”

Bankruptcy Help Desk

The number of pro se litigants who got help from the Bankruptcy Desk in Room 622 of the Dirksen Federal Courthouse was up 30 percent through April 6, according to staff attorney Mary Pat Dixon.

Through April 6, 2008, the desk helped 525 visitors. In the same period this year it helped 683. The desk is operated by the Legal Assistance Foundation of Metropolitan Chicago.

”Sometimes when I get here, people are waiting already,” Dixon said. ”I’m sure if we were open all day, people would come all day.” But the desk is open only from 9:30 a.m. to 1 p.m.

Many of the pro ses ”have gone to attorneys, but they just can’t afford the attorney’s fees, or the filing fee,” Dixon said. For a Chapter 7 bankruptcy case, the filing fee is $299.

Among other things, the desk can help a debtor fill out an application for a waiver of the filing fee. It’s not automatic.

”We take emergencies first,” Dixon said.

One such emergency is when the foreclosure on the debtor’s home ”has progressed to the point where there is a sheriff’s sale scheduled.”

The desk can help a person file a Chapter 13 bankruptcy payment plan.

”It stops the foreclosure sale, as long as they file before the sale,” Dixon said.

”It’s nice that there’s funding for it,” Dixon said of her advice desk. ”I don’t know what people would do… People are very appreciative that this service is available to them.”

She said this pro se advice desk helps ”everybody, the court system and the clients.”

Other Downtown Advice Desks

The Expedited Child Support and Paternity Pro Se Advice Desk on the 14th floor at 32 W. Randolph St. expects to see about 1,800 people this year compared to 1,650 last year, according to Edward I. Grossman of the Chicago Legal Clinic, which operates this desk.

The Domestic Relations Self-Help Desk on the 30th floor of the Daley Center, operated by CARPLS, expects to help 5,500 pro se litigants in fiscal year 2009.

The Administrative Hearings Desk, 400 W. Superior St., Room 121, helps pro ses with cases involving building code violations, vehicle impounds and other municipal matters. With only one staff attorney, this desk operated by CARPLS, expects to help 1,000 pro ses in fiscal 2009.

These pro se help desks — and more not mentioned here — were developed in recent years through partnerships of the Chicago Bar Foundation with the Cook County Circuit Court or the U.S. courts, and with various legal aid organizations.

The CBF put almost $600,000 this year into grants for these desks, of which more than $400,000 comes from donations to the CBF and $170,000 from the circuit court.