135

Loogit! Getting back to some of the great attorneys whom I’ve met and worked with,

Leonard LeRose is another practitioner whom I’ve come to know and admire. Len is a rather amazing paradox. I hope he doesn’t mind my back-handed

compliment here, but if you meet Len, he’s well-dressed, very effective, clearly knows his stuff, but the one thing that is also immediately notable about him is…he comes across as very “Berwyn”—very working class. There is NOTHING wrong with Berwyn. But Len’s manner of speech involves a lot of f-bombs and he begins a lot of his sentences with “Lookit” or “Loogit” or whatever. As in, “Look here”…. But it’s “Loogit.” Now, because I’m so secure in my bond with Len, I’ll throw in here, I once received a Christmas card from his office to my office, so I decided to take it upon myself to touch it up a bit:

And I emailed my redraft of his card back to him and also to a few others that

know him (and would laugh)! The paradox of Len LeRose is that he has always been a success. He got into

Notre Dame University and also, among others, Stanford University. He decided to go to ND because it was closer.

He tells me that when ND played a huge basketball game against DePaul in the

late 1970s, and DePaul’s Gary Garland hit the game winning basket in overtime at Notre Dame, if you watch the television replay of that, Len is the only student in the student section who’s jumping up and down excited for his hometown team to beat his actual school’s team!

Then when he graduated, he tells how everybody around him was crying that “it”

was over and they had to leave! When the ceremony was over, his dad asked him if he wanted to hang around and Len said, “Nah—let’s get the F outta here,” so they got in the car and left. That’s not to say he disliked Notre Dame—it’s just that he isn’t into the whole, “Awakening the Echoes” of former great players that Brent Musberger waxes on and on about every time he does a football game at ND.

Getting back to how we work well together…. I remember one time he asked me

to help him out with one of his cases as co-counsel, so I began by reviewing the deposition transcripts in the case, and as I would read these transcripts, I would see the

136

answer of the deponent, and instantly formulate my next question if I were taking the dep. Over and over again, I would read on and that question was the one Len asked. How cool is that?

Recently, Len’s wife Ilene joined him in his downtown Chicago office, working

there part-time, helping with various office chores and so on. She occasionally will…offer her opinions on things, which sometimes leads to real comical situations. One is, she would prefer if Len would take on a bit more contingent fee work (rather than just hourly or payable by fee petition to the court at the end of the case).

In a contingent fee case, because you are taking the “risk” with the client—by

potentially losing and never getting paid—the payoff is potentially far greater than what you might receive if it were done on an hourly basis.

One morning I met Len as we were both walking to court. Here's how Len retells

the conversation with Ilene in his office from that morning: Len, on phone with a potential contingent fee client: “I'm sorry, ma'am, I can't

take the case, I'm not in a position to take on any more contingent fee cases— Ilene, yelling from across the room: "TAKE THE F[ing] CASE!!" Len, first to the client: “Hold, please,” and, placing the receiver against his chest,

to Ilene: “SHUT THE F[] UP!!” Ilene, unperturbed: “TAKE THE F[ing] CASE!!” Len: “SHUT THE F[] UP!! GO SHOPPING!!” Ilene: “TAKE THE CASE!!” And on and on. By this point in the story, I'm dying—Len and his wife going at it

like this, and a potential client is hearing all this with Len just holding the receiver to his chest, like that's going to muffle it. And Len’s laughing retelling it.

So Len says to me, “Anyway, I'll tell you about it later, but Ilene had a pretty good

idea of how it might work for us to take on these contingent fee cases, I'd like to tell you about it, maybe we can work together on it.”

I loved the transition--obviously he's not upset at Ilene at all, and wasn’t at the

time—that’s just how they communicate. And Ilene is a terrific lady who is always up-beat and happy to see you. She takes his “curmudgeon” and raises him with loads of charm—they’re clearly made for each other—very cool thing to see.

Dave Baker I would also include among the really talented lawyers I’ve worked with David

Baker of McDermott, Will & Emery in Chicago. Dave had been opposing counsel to me

137

on various matters, but after dealing with each other a lot, he asked me to be one of the authors of an Illinois Continuing Legal Education primer on Probate law, both litigation and administration. He knew that I was involved in a trial of an Oral Contract to Make a Will matter (Scott Weller’s case). In these cases typically two (or more) people enter into an agreement whereby the (usually) older person tells the one from whom he or she wants help to provide some sort of service—often care and companionship—often also regular work around a farm or house—something the person needs a lot of help with—but because the older person cannot pay the help currently, promises him/them something by way of their will. And inevitably these cases are filed because either the older person failed to make out a will (or a bequest in their will) or did but it cannot be located upon the death.

Dave asked me to write an update on Mort Barnard’s 1985 Chapter regarding

Oral Contracts to Make Wills and regarding Joint Wills and Mutual Wills for the Illinois Institute on Continuing Legal Education. We got to know each other essentially as opposing counsel on various cases, and I always enjoyed being involved in those. Dave’s a very charismatic guy and everything he did was well-thought-out, and frequently on his feet. If you gave Dave a topic in his practice realm, he could probably talk for a half hour on it completely extemporaneously.

At any rate, Dave and I had some real interesting battles. I recall one time I was

representing a client who had a residence in Idaho but he spent a lot of time in France. Dave was representing another party and they were challenging our guy’s

standing in some way—maybe he wanted to be Trustee of a Trust upon another person vacating the position. So we’re in court arguing his motion to bar our guy from serving, and Dave says something about how our guy “purports to live in Idaho but he spends at least nine months of the year at his chateau in the south of France!”

Unable to help it, I found myself retorting: “Well so did Humphrey Bogart, but

that didn’t make him French!!” Got a lot of out-loud laughs at that one, including from Karen Gaylord (who later

learns to hate me in the Charlotte Barth case—keep reading), and including also Judge Cusack. It’s stuff like that that makes this business fun.

Dave respected me, I dare say, because I showed that I did my due diligence on

cases in which he was involved. One thing I learned not so very long after entering this profession is that great attention to detail in regard to what the law actually is, is not all that widespread. And I think Dave started referring me on cases (and asking me to write a chapter in the Estates IICLE) because of the work ethic.

Okay, that’s why he respected me. But I think Dave started to like me partly

because we grew up not too far from each other, on the far north side of Chicago, and both of us came from similar economic circumstances—I’m from a family of nine kids in a small house, Dave had a similar financial background without all the siblings. Very middle class, nobody making it easy for us. The reason the geographic area came up

138

was, the Estate in the aforementioned example had owned a car dealership in that area and Dave would talk about having been in the place when it was a motorcycle dealership owned by the same people many years ago. I told him I remembered it too, having ridden my bike around that area many times to go to my cousin’s house in east Rogers Park. Dave and I also bag our lunches every day, preferring to eat in the office rather than to go out to lunch every day.

Dave doesn’t know it (because we ended up settling the case before it came to

this) but in the very first case I had involving him, he was representing the Executor and among other things, Dave had prepared a fee petition seeking approval from the court, and one of the things our client wanted to do was to oppose his fees.

Under the Illinois Probate Act, which is the set of statutes that generally govern

our practice area, it is provided that the attorneys for the executor (or administrator) are entitled to “reasonable fees” for their work, and the fees are payable out of the funds of the Estate.

So, knowing that we had been directed to oppose Dave’s firm’s fees—not all the

fees, but those amounts which the court might agree are excessive—I researched the case law in Illinois. There happened to be one particular published opinion—the Estate of Halas—an opinion from 1987 involving the aforementioned curmudgeonly Judge Budzinski, who was the presiding judge of the Probate Division in Cook County. He was affirmed by the appellate court in a well-articulated opinion. What had happened in the case was, the law firm representing George Halas, Sr. (Papa Bear) as the Executor of his son’s estate, Kirkland & Ellis, had sought some $900,000 in fees and reimbursement of expenses.

The objectors to the fees had engaged an expert, a fella named Don Gillies, who

was with the firm of Altheimer & Gray. Gillies had gone through the fee petition and itemized all the fees he thought were excessive in Kirkland’s fee petition. Judge Budzinski agreed with Gillies and reduced the fees from over $900,000 to less than $500,000.1

Remembering what George Groble had mentioned, I looked this Don Gillies up

and, lo and behold, he was still practicing. I went over and interviewed him. He wanted a decent retainer just to look over Baker’s fee petition, but it was worth it. He did a great job reviewing it and was all set to go.

As I mentioned, we ended up settling the case before having to use Gillies. But it

was all about what George had talked about—think of a novel way. I remember being involved in a deposition in that very case, where Dave

represented the Executor and I represented a disgruntled family member, and I was taking Dave’s client’s deposition. Well, the location of this deposition was on the 8th floor of the Marquette Building a half-block from the federal plaza, and that week Berghoff’s restaurant was holding its annual Oktoberfest, which was held on Adams outside of Berghoff’s, and there were a lot of people there plus outdoor music. I believe

139

Johnny Morgan and his German OomPah band were going full bore. Talk about a transcript not doing justice to the actual events during the deposition—I’m quizzing this Executor on various aspects of his accounting, his activities as Executor, including serious issues such as the fact that he had a felony attached to his name. Under the Illinois Probate Act, probably like most states, if you are a felon, you are disqualified from serving as the representative of an Estate.

Imagine how handicapped I am in trying to seem intimidating, or to make the

facts and issues seem intimidating, when they’re “Roll[ing] Out the Barrel” outside and the witness is having a hard time hearing my questions because of it.

Johnny Wagner and his Bavarian OomPah Band

… Oktoberfest outside the Marquette Building, which is directly behind the stage

As a funny side-note, just as I write this I have received an invitation (along with

the rest of the Chicago Bar Association members) to an Oktoberfest with live Oompah music—I find that funny! Voila!—

140

My boss, Reuben Schipley, was there too, and it became even more comical at the

end. I was basically out of questions to ask, so I (as I usually do) took a break to talk to my client. So I meet with my client, her husband and Reuben. Then just as I’m about to go back on the record maybe to ask one or two questions just to cover areas that I missed, Reuben asks me to meet him in the corner of the conference room. Our client has resumed her seat and everybody in the room is just waiting for us now, and there was no music outside now. What I remember from it is, he really had nothing to add or to say to me, but he wanted to make it look like he’s imparting sage wisdom to me, then as we’re finished with whatever mumbo-jumbo he had to say, he grabs my arm and says, loud enough for everybody in the room to hear, and maybe even people in the hall too, “Now, I want you to HAMMER HIM!!”

I almost laughed out loud at the ridiculousness of this. He hadn’t said anything

of substance to me—and he knew it—but as a pure show for the client and everybody else he was directing me to lower the boom on this guy, but I had no real questions or areas to cover that would call for it. (And would I really have forgotten to bring up something boomworthy in the course of the dep????) So I went back on the record, asked a question or two about the miscellaneous areas I hadn’t covered then I said “no further questions” just as I was going to before. Believe me, it was all I could do not to crack up at that little show for the client and the others….

It reminds me of something else involving Reuben. I had actually met him while

I was still at Groble & Groble when attending a monthly meeting of the Chicago Bar Association Probate Practice Committee, where practitioners meet and you can pick up tips and such on issues affecting our practice and the latest pronouncements by the Presiding Judge in Probate. This is before the internet and I wanted to meet other people who did the same kind of work, maybe meet people by whom I could run my questions.

One time I was there and I was trying to figure out how presumptions get

explained to a jury. For instance, if you have the burden of proof on an issue, and you come forward with evidence arguably sufficient to sustain your burden of rebutting a presumption on something (such as the presumption of a gift in a joint tenancy account), then the burden shifts to the other side to produce evidence in defense of the gift—well, how does that get explained to the jury? So I’m at one of those meetings and really don’t know anyone, but I want an answer to my question about these shifting

141

burdens. So I asked somebody who looked like he should know—somebody who had previously contributed at these meetings. And he begs off, suggesting that I talk with Reuben Schipley, who’s standing right there, dressed, as always, to the 9s.

Cool. So I walk up to him and ask my question. Reuben gave me the biggest non-

answer I ever got to any question I ever asked in my life. Thus began my acquaintance with the man, the myth. Not long after that I responded to a blind ad in the Chicago Daily Law Bulletin for a job in probate litigation, and I ended up interviewing with Reuben. It didn’t hurt that we had had this little exchange. But I sure didn’t get an answer to my question. But it was my first experience (of many) seeing in what reverence people hold him when it comes to probate practice. And I knew what level of knowledge and wisdom I could expect from Reuben thereafter.

I will say, about Reuben, that despite how many times we would joke about being

in court, hearing him say something and then be tempted to say, “I think what Reuben meant to say was...,” but as a person, he was very kind. He had a quick smile, a good laugh, he seemed to be a very dedicated father to his kids, his wife seemed lovely, and he also seemed to have friends who I liked a lot.

Twist of [The Good Ship] “Fate” There was one occasion when I was asked by Maggie Anselmo, our mutual

secretary, to sit in with a client of Reuben’s while he was tied up in court. This is maybe some time in 1996 or 1997. At first I was a bit miffed (not a babysitter, after all). But when I met this guy, whose last name was Weinstein or Weinberg or something like that, I was entranced. He was a really good guy. He was in a wheelchair, and I don’t know why he was there to meet with Reuben, but he and I got to talking about his background. And he explained that he had written a book about the ship that he was assigned to in World War II. He had been in the Navy and was the ship’s historian. Part of his job was to track where the ship went at all times, and to track personnel. So if they had casualties, he had to find out who was injured or killed, explain what happened, and basically keep track of everything they were doing.

Well, at one point in the Pacific there was a typhoon, and there was every chance

the boat might sink. The ship was leaning almost to the point of tipping to one side, then to the other side. The ship did not sink nor have to be rescued. But during the storm at one point the ship tipped so far one way that the ship’s carpenter was thrown off the ship. It too risky to try to save him so nobody did.

And yet, not long after, the ship listed, tipped again, and the guy was washed back

aboard the ship!! Then Mr. Weinberg told me the part that made me remember this story. That ship carpenter lived, married after the war, is still alive, and now has 36 grandchildren. It makes you think, doesn’t it?

Mr. Weinberg did say that he did not think anybody other than the men on that

ship would really be interested in his book. I told him I was already interested. Well, I never saw him again. And now in the internet age, I’ve tried Googling the guy but I

142

don’t remember his name. I’m sure his book is listed with the Library of Congress but I haven’t gone to the trouble to do that kind of research yet. Maybe when I retire….

Jim Torgleson, Alleged Disabled Person: Punch in the gut This one was tough. One of my comrades at my second firm, Michelle Hunter,

had been assigned this guardianship case involving the children of a failing gentleman who remarried after his first wife had died. We represented the gentleman’s children, Patrick and Jennifer Torgleson, but with Patrick a resident of Florida and Jennifer, who was kind of unstable, being the local presence here in Cook County, and somehow the judge had become highly disenchanted with our case before I ever got there.

Michelle Hunter’s health had taken a turn by the time this case walked in the

door. She suffered from brain hemorrhaging which involved several invasive surgeries—major stuff. Michelle had commenced to get active on the case, but after about 3 or 4 months, she had to step away. Jennifer would write these scathing letters to our firm, literally suggesting that maybe Michelle was hemorrhaging when she did or failed to do this or that when the judge had begun to become disenchanted with our case. First the case got handed to another lawyer, Stephanie Russell, in Michelle’s absence. Then Stephanie suddenly left our firm, and the case got assigned to me.

We had a judge, Susan Turner, who had become very tough on our case by the

time I got involved. I think Jennifer had failed to appear one time when the court had ordered her to, or maybe had addressed the court with sarcasm or something. But it did not look good. Patrick, though much more agreeable and likeable than his sister, had also failed to make a court appearance because he was a Florida contractor, probably because he had not known of the court date. In any event, our case, by the time I got involved, was way behind the eight-ball.

The situation was, Jennifer and Patrick were the adult children of Jim Torgleson

by his first marriage. Jim had remarried, and the new Mrs. Torgleson was, in our clients’ view, not caring for Jim properly—she was only interested in giving him minimal care and acquiring and preserving his money.

Poor Jim. He was in an advanced state of dementia, and this second spouse was

shielding him from visits by his children. So they had initiated guardianship proceedings for Jim. The spouse opposed the guardianship using attorney Esther Van Houten, a very aggressive but somewhat ill-tempered person, by asserting their possession of a valid Illinois Power of Attorney for Health Care and one for Property as an affirmative defense to the guardianship petition.

In a guardianship situation, if there is a valid POA for Health Care, that ordinarily

trumps a guardianship petition, as does a POA for Property. But we had filed pleadings (before I ever got involved) seeking to invalidate the POA for Health Care. Procedurally, if you are able to knock out the POA, then there will be a second hearing to determine who shall act as guardian. The legal theory on pursuing the invalidation of the POAs was to take the position that Jim Torgleson lacked the mental capacity to revoke the

143

POA if to do so was in his best interests. It’s similar to the standard for a guardianship, but you must prove it by clear and convincing evidence.

As I recall it, my first act in the case was to go into court to ask leave to take the

discovery depositions of three doctors who had treated Jim. I had not done much guardianship litigation before, so I had to research the law on this. In that very first court appearance I got a first-hand taste of what sort of audience we would have with Judge Turner, and I also encountered Esther Van Houten for the first time.

Judge Turner was on us from the start to push this case quickly, to limit the

discovery involved, and to get the case to a hearing as soon as possible. She allowed only one doctor to be deposed. We took the main treater. The

problem with this doctor (Dr. Rakesh) was, though she was perfectly competent and a fine doctor, she was difficult to understand. She had a heavy East Indian accent.

We went out to the nursing home and took Dr. Rakesh’s deposition, and her

testimony helped us a lot. She, like virtually all doctors, was not enamored of having to take the time to give this testimony, and also displeased that the case was going to a hearing in court where she would have to appear downtown to give testimony. But, as I said, she was helpful. In her deposition, she testified as to Jim’s diminished capacity, and though our case was all about lacking capacity to revoke the POA if necessary, she mainly talked in terms of needing a guardian. The language barrier was a bit of a problem, so I was having a hard time nudging her towards the precise issue. But the main thing was Jim’s mental situation was such that he lacked capacity, and it was advancing dementia.

About a day or two after taking Dr. Rakesh’s deposition, the other side—well after

the deadline for doing so—went into court on an emergency motion to disclose their own expert. We opposed it, as the court had already clipped us on discovery and they were late, but the judge let it happen.

So we all drove back out to the nursing home where Jim was staying and took the

deposition of his expert: a person with a masters in social work. This social worker, in the ordinary case, would not have qualified as an “expert” because she did not have the credentials of a doctor. But she had given Jim several mini-mental status examinations and concluded that he had sufficient mental capacity.

We had to order the transcripts from these depositions on an expedited basis

because the deposition of this social worker took place on a Friday and our hearing in guardianship court was commencing on the Monday following.

I still felt pretty good about the case. We began. I put on Patrick Torgleson, who

was a great guy, very solid, very clearly loved his father and wanted nothing but the best for him. He simply did not want to be shielded from seeing his father, and he recognized that the stepmother was bad news. Jim was not at the trial, though the

144

respondent (anybody in Jim’s position is called the “respondent” because they are responding to a guardianship filing) has the right to be there.

We put on Dr. Rakesh, who testified as we thought she would. I believe we

decided not to put on Jennifer Torgleson. My thinking was, the court already dislikes her, she was quite volatile, it was simply a bad idea. Also, as I recall, Jennifer declined to testify as well—she just didn’t want to.

I don’t remember who else testified. I do not think Mrs. Torgleson testified.

When we rested, they put on the social worker. I remember this testimony pretty well. She had testified to having met with Mr. Torgleson, to administering these mini-mental status exams, and having concluded that Jim had sufficient capacity to make decisions for himself. She also testified to the loving, warm feelings Jim had towards his wife.

When I got the chance to cross-examine, I was able to bring out, as she had

testified in her deposition, that these mini-mental status exams occurred on three occasions. One on a Monday, once the following Thursday and then again the following Monday. And on each occasion, this social worker had to introduce herself to Jim, then reintroduce herself to him on each subsequent occasion from scratch, as if he had never met her before, not only telling him who she was, but what the purpose was of her visit, and then to explain to him what she was going to do. He had not remembered her at all on the subsequent occasions. I do not recall the results of these mini-mental status exams, but Jim had not ace’d them.

The court, as it does in each case of a guardianship, had appointed a Guardian Ad

Litem (a GAL) to visit the alleged disabled person, to determine for herself what the person’s best interests were, and to make a third party’s recommendation to the court on a proper result. In this case, the court had appointed Martina Hoffman, and though our clients had been disgruntled with the fact that Martina had initially opposed them on their petition, I had the sense that Martina was very sympathetic to our side. I knew Martina from one prior case and liked her.

Martina did not like the way the spouse was conducting herself, she also did not

like the heavy-handed attitude of Esther Van Houten, and she in fact was feeling minimalized by the court as well. What I mean is, though Martina had asked the court for authority to conduct discovery, the court had clipped her wings by expressly limiting her role in this case, given that an aggressive opposition to our clients’ petitions was being made by the spouse.

So at the trial Martina actually sat at the table with me, while Van Houten and

her team sat at the other table. When, for instance, I was cross-examining this social worker about the built-in weaknesses of her report and opinions, I was gratified to hear Martina whisper to me, at the close of my examination, “Good job!” She was basically the only source of positive feedback to me during the trial. Esther Van Houten’s unbalanced personality was made most apparent to me when, during a normal moment of leaving at the end of the day, I was merely walking to the hat/coat rack to get my overcoat at the end of the day, and she and I found ourselves approaching the coat rack

145

at the same time, she made this dramatic show of recoiling as if I were going to bump her or something when all I was doing was to get my coat. There was nobody even watching—not the court, not the clerk, nobody else. But she made this dramatic feint apparently just for my benefit. All I could think was, this lady’s a nut-job.

Anyway we lost. And the court, despite what I thought was more than sufficient

evidence, decided to make such a point (expressly for the benefit of the appellate court) of our poor showing that she said, far from showing clear and convincing evidence, we had not even shown evidence to meet the mere preponderance of the evidence standard. Ouch. Even Martina Hoffman was shocked.

As a matter of fact, Martina Hoffman so disliked her experience in that case that

she decided to change her practice, move north to Lake County and not serve anymore as a GAL in Cook County. The judge gave her a particularly hard time in her fee petition—the court clipping her fees, following the lead of Esther Van Houten in her vociferous objections.

The point being, sometimes you’ll get a case which may be pre-ordained in its

results. And in those cases, there is very little you can do to make your case any better, but boy there are a billion ways you expose yourself to potential liability. This Torgleson case was so heated, with the lawyers feeling personal disdain for each other, it was a bad example of the justice system. So even if the client is able to pay you, beware. There are some cases which are just stinkers, and it’s best sometimes to decline to get involved. Often the problem will be that you do not learn of the “stinker” nature of the case until you’re already in it. So it’s best to do your research. If you are the third, fourth or fifth lawyer involved, that’s a red flag. Do your “due diligence”—there is usually a reason the prior counsels are no longer involved.

Law Firm Committee Work If you’ve ever worked in a law firm where committee work is required—usually to

be performed by all but the actual equity partners (the owners)—then you may know all about this next topic.

I mentioned earlier that I’m not a fan of law firm committees. The reason is,

they’re useless. The entire time that I was at this firm I was an associate so I was fair game to be tapped to be on a committee. I asked Frank Hodge, one of the partners who perennially was Chair of the Chuhak & Tecson Library Committee (what penance was Frank paying here?) what the point was—if we really needed to keep our library “fresh” like this? Can’t we get staff to do this stuff? He mentioned something about committee work being a way to show an ownership interest in the firm, as well as it being a way to get to know other lawyers in the office. I mentioned, I already know all the people on the committee, and I would think that if I had more time to bill on files I probably would demonstrate even better my “ownership” in the firm. Poor Frank, he had to know I was right but he also drank this law firm Kool-Aid all the way.

I once brought up my little gripes about firm committees with a different

partner/chair of the Library Committee, and Michelle Hunter—mentioned above

146

regarding the Torgleson matter—was actually the daughter of one of the named original partners. Well, for whatever reason (I’m assuming it was as simple as just to climb over me up the ladder for disparaging the ridiculousness of firm committees), Michelle took the opportunity to tell me, in front of everybody else, how I should consider it a privilege to serve on committees at the firm, not to mention how broadening the work was. I almost retched. And I genuinely liked Michelle Hunter. But I wasn’t buying that crapola. I saw her as fighting the good fight trying to make her way up the mythical partnership ladder. And I also thought she was occasionally hilarious, which is all you need to get on my “good side.” Eventually Michelle left the firm, believing she would never get a fair shot there.

To give you an idea of why I really liked Michelle…. I remember one time in my

first year at Chuhak I was in my office, Carrie Ann Denler, Stephanie Russell, Andy Redden and Bill Cathcart—all fellow associates at Chuhak—were in my office. Not long after beginning to talk, Michelle Hunter showed up. Michelle was older than Bill Cathcart and me by about 10 years—she had started law school later in her career. This was early in the morning, before court. Somehow the notion came up that our mutual boss, Reuben Schipley, the head of the probate department at the firm, could conceivably get a spot on the Illinois Supreme Court. This was not a real possibility. But the memorable part was Andy doing an impression of Reuben if that event came up. “Well, … how would I get paid!????” We were roaring at his impression of Reuben.

Andy then mentioned an instance that very week where a meeting had taken

place at our office where Reuben had mentioned our office getting involved to do the Federal Estate Tax return in an estate, and a few days later, a lawyer involved had sent a letter un-confirming something Reuben had stated in a “confirming” letter, which included the fact that our office would get $75,000.00 to do that work. The guy’s letter said, “We never, for one, agreed to pay your office $75,000.00 to do the FETR!!” Andy and the rest of us were cracking up—Reuben was all about the getting paid! But Bill Cathcart, laughing, added that, in fact, Reuben had pitched that in the meeting. Bill was amazed at his audacity.

So Michelle Hunter says, right in front of everybody, that she had had a highly

erotic dream the night before about Reuben!! Oh my God, we were all dying of laughter and also a little disgusted at the same time…. That, however, was the kind of thing that Michelle was terrific to have around for. She was a lot of fun. Which made the “pleasure and privilege to serve on committees here” comment that much more odd and out of character.

Anyway, if you’re like me, and have to go to these ridiculous committee meetings,

you do what you have to do to make it fun for yourself. One time I decided that I would take lots of notes—which our fearless leader Frank would take as a huge compliment—but then convert them into satirical “minutes” of our meeting and then circulate them among similarly subversive associates.2

147

148

149

******** I was told, after circulating these “minutes” among the comrades—which

consisted of almost everybody in the committee—that they got read aloud at a party that

150

night amidst great laughter. The thing about it is, about 85% of it was literally said in the meeting, which means I cannot take all the credit for the comedy.

The nice thing about what transpired over my years at Chuhak was, I started to

get calls from people with referrals of work. That didn’t mean the powers that be didn’t still impose requirements on the employees that they show what efforts they were making to bring in work. The nice thing (at the time!) was, I had a lot of work that had come in from these referrals, so I really didn’t have to do much “marketing” which I never enjoyed anyway.

I certainly don’t know this for sure but I was pretty certain that these referrals

came to me from other attorneys because they had seen me work—in the courtroom, participating in the CBA Probate Practice Committee meetings (as Secretary, Vice-Chair then Chair), or occasionally because people had read some of the published opinions of my cases. So when I have had occasion to attend seminars (for Continuing Legal Ed, etc.) where questions arise from the younger members of the audience on how to get business, I have spoken up to say you need to do the work—don’t just back somebody else up (if you are able)—and make yourself visible. Every case is an opportunity to show, first the client, but also opposing counsel and the judge in the case, that you know what you’re doing and are good at it. You don’t have to be extraordinary, you just have to give off the vibe that you know what to do. Even if you don’t, at first, you should, as they say, “Fake it till you make it.” And you will make it.

In larger law firms there are marketing “committees” which have as their only

real functions issuing memos to junior partners and associates to ask what they’ve been doing lately affirmatively to bring in new work. I realize that that kind of thing is the lifeblood of any firm—after all, without new work, you wouldn’t be able to employ people—but for the most part I found marketing overlords to be a huge annoyance. So it was always really nice to be able to say, essentially, don’t bug me—I got enough.

Well, one time I responded to one of these requests for a written detail of my

efforts at marketing, and sent a response which basically said, well, I have been fortunate enough that I have not had to do much affirmative effort to “market” my services, I have found that work comes in the door by generous word-of-mouth among other lawyers—opposing counsel, co-counsel, judges giving my name out, etc. So I’ve been lucky, I have not had to take people out to lunch, attend events to make myself visible, the usual stuff (which I detest).

Within about three or four months of that request from the firm, I got another

one. Ugh!! This time I gave in to my smartass instincts and sent a memo back.3

151

I didn’t hear from anybody after that. I just can’t suppress my real feelings about

marketing committees imposing themselves on us just to justify their existence. Or to be able to show, at the end of the year, that they took these steps to do something rather than nothing. (Do you see why I am not a big fan of law firm committees???)

152

Because Maura Harrigan gets mentioned in my subversive Library Committee “Minutes,” I’ll add that she and I had some hilarious interactions, mostly involving me begging her to upgrade my computer or something—Maura being our IT person at the time.4

153

154

155

“Buckle up and away we go, we will not stop until we get them!”

There was one particular case which was hysterically funny at various times. On this case I had Michigan co-counsel, Dean Sigler and Paul Varchetti, who had brought me into the case because they needed Illinois counsel, though they stayed involved as active litigation counsel as well. It was a case where our client was one of three daughters of Mom, whose will and trust left everything in equal shares among the daughters. The one who was the named trustee had never given our client an accounting, but through her attorneys did try to buy her out with a real low-ball offer. Rather than giving her a full one-third, they were offering about one-sixth, but not telling what was in the Trust. So we were engaged to pursue a full accounting for our client, and to compel a proper distribution.

First, In Dean’s engagement letter to the client who lived in Michigan (hence

their involvement), Dean’s parting line in his letter was something that I have now adopted in appropriate cases: “Buckle up and away we go—we will not stop until we get them!”

(Dean, Pauly and me during the trial.)

156

Going a bit out of chronological order, one thing that was simply hilarious was, when we were at trial, the sheriff’s deputy assigned to the courtroom provides a pitcher of water for each side. Dean and Paul were rooming together downtown during the trial and came up with the idea of bringing packets of lemonade powder, so throughout the trial, while the other side had just their regular old water jar, ours had been transformed into delicious pink lemonade. The clerk for the judge thought it was hilarious, as did the deputy, and when the Judge came onto the bench, he laughed out loud. For months after that trial ended, the Clerk would ask me when those Michigan lawyers would be coming back.

More comedy. Virtually on the eve of trial, the other side disclosed four experts.

We went in on a Motion to Bar (they should’ve done this long ago), but the judge let them go ahead with two of them, and gave us a short window of time to take their depositions.

So Pauly flies in to take both deps. He loved coming to Chicago. It was worlds

better than spending time in Detroit and he loved to ogle at the pretty girls downtown, but I will say he also seemed to enjoy coming to my office and hanging out.

So he comes in Friday morning and takes the first dep. This lady is 35 years old,

is (incidentally) kind of cute, but it is her first time serving as an expert witness, so she's nervous, but basically does a fair job. Paul, single at the time, tried to ask her to dinner, but our over-serious opposing counsel would have none of it.

Paul tells me over lunch that he's not feeling well so I agreed to take the next dep,

this attorney who's like 60 or so, been practicing since 1968. His name is Stephen Dusablon. I'm a little under the gun, not having prepared for the dep, so I'm sort of scrambling on what to ask him and how to go about it. But I know the basics of what we need--we need his opinions and how he formed them. Well, when he sat down, Dusablon has the appearance of Walter Cronkite: very calm, very cool, not at all a fresh-faced, first-time testifying expert. Dressed like he's the final word—three piece tweed suit, watch and chain in his pocket, the whole thing.

157

So I'm going through his background with him: was with the U.S. Attorney's Office from 1968 to 1976, prosecuting tax cases for the IRS. Pauly and I are thinking, uh-oh, this guy's a heavy hitter, he's gonna sink us with his knowledge, awareness, experience in this area, preparation, also a kind of a “cult of personality,” etc.

So I start asking him about what his opinions are in the case (I need to know so

we can learn how he’ll testify at trial and to prepare), and suffice it to say, there are flaws in each of his opinions. So I resume asking him his expertise and it turns out he really doesn't know much about “estate” taxes. Well, our case is about nothing but estate taxes, and the advice he has given to the other side is to file an Amended Federal Estate Tax Return, some 3 months after our client, who is the Administrator of the Estate, filed hers.

So I'm asking him whether he advised our opponent that she legally can file an

Amended Federal Estate Tax Return (FETR) when she wasn't the original filer—our client was.

He tells me he's been told that our opponent was the Executor in the Estate (the

Will nominates her, but after litigation in the probate court, she was denied the right to act as Executor because she delayed four years to file the Will with the Court, failed to act quickly enough, etc., so our client was appointed Administrator which is essentially the same as the executor). So our opponent in the case was the Trustee of the mother's trust, but not the Executor.

I am able to get out of him that, if in fact his client was not the executor, she

actually cannot file an Amended FETR because the IRS will not listen to anyone but the executor or administrator, particularly if that executor/administrator has filed a FETR. In other words, the IRS will not even consider anything filed by somebody who's not the original filer. Well, it turns out that, based on his advice, they actually did file this “Amended FETR,” calling their client the Executor. Unbelievable.

Among his “opinions,” he also testifies that he thinks it was a grievous error by

our client to file a FETR which contains real estate appraisals reflecting much greater values than those which our opponent would have used. I hadn't even asked him about that. So I ask him whether he's ever seen the FETR filed by our client, and he says he has NOT. Unbelievable again: here's this Walter Cronkite type dude who is going to influence the court to rule against us purely by the force of his personality, combined with presumably some kind of reasoned opinions as to why we should lose the case, and

158

he hasn't even seen the FETR which he's criticizing. He's just going by what our opposing counsel has told him.

So then I ask him whether his opinions were ever put into a written report

anyplace. No, he says they're all up here (pointing to his head). So I note for the record that the witness is pointing at his head, and he totally stands by it.

Well, this is becoming a total hatchet job of serving as an expert. I mean, the

appropriate thing to do is to prepare a written report (as the morning witness had), that way we can question him on his opinions, etc., and the Court has something to read. Not with this guy. (Also it's usually a good idea to double-check the basic facts.)

Then, after a few more questions about Estate taxes, he blurts out that he doesn't

hold himself out as an expert in estate taxation. WHAT??? So I ask him well, what did he advise our opponent should happen here, if anything? Well, he's advising her about the filing of an Amended FETR and things like that: nothing BUT estate tax issues.

And by this time I'm truly wondering if he has an expertise. So I find myself in the rare position of being able to be Bob Slydell in Office

Space: “Mr. Dusablon, I don't mean to be rude, but, after all, what would you say… you're an expert IN???”

And the guy immediately gets all defensive (while Paul, sitting next to me, is

trying to stifle laughing out loud), saying, "I'm a PARATROOPER!! I go in when people find themselves in a tax controversy, and I get them out of it!!"

159

Paul is in stitches, unable to contain his laughter at this byplay. I was basically out of questions, but he opened the door, so I was able to ask

about one more subject. About 4 weeks prior, I had filed a Motion to Compel the Trustee (our opponent)

of the Trust to File Amended Trust Income Tax Returns, as by doing so, a great deal of money would come back to the Trust.

It's a little complicated, but by our filing the FETR that we did, using appraised

values for the real estate which are much higher than what the other side would've used, it meant that, with the sales in 2002 and 2003 of the two pieces of real estate by the Trustee, she needs to file these Amended Trust Income tax returns to get back some of the capital gain taxes that they paid (which were paid based upon these low-ball appraisals that they had obtained in 1999).

So I ask him whether he agrees that, under the circumstances, Amended Trust

Income Tax Returns should be filed. He agrees with us and says by all means they should be filed.

So now, knowing that opposing counsel was going to waffle on that issue, in

opposition to our Motion to Compel, now we've got their own “expert” testifying in our favor on that separate issue.

Anyway, it was a great dep. The guy went from Walter Cronkite to Herb Tarlek

from “WKRP in Cincinnati” in 45 minutes before our very eyes.

I told this story to a trial lawyer I know from Boston and his response to me was,

“Classic! Nothing kicks off a weekend quite like spilling a paratrooper's viscera onto a conference room floor! Guess you won't be seeing him at trial ....” And, as predicted, we never did see him at trial.

*********** As funny and memorable as things were with Paul and Dean throughout this

case, the trial went especially well for us. We won in virtually every way. Judge Patrick Halloran, retiring at the end of 2006, was rendering his final ruling at the end of our trial on New Year’s Eve, 2006. Judge Halloran had asked both sides to submit what are

160

called Proposed Findings of Fact and Conclusions of Law. In rendering his ruling, the court adopted almost all of our Proposed Findings and Conclusions, adopting none of the other side’s. The judge ended up finding the testimony of the other side’s real estate appraisers as lacking credibility. As a result, our opponent in the case was removed as Trustee of the Trust and was required to return the attorneys’ fees she had paid out in defense of our case.5

Just to give you a flavor of what it was like to work with Dean and Paul, there was

a time when I would complain to Dean that I couldn’t reach him—he had never set up voicemail on his cell phone and for a while he wasn’t returning my calls. It was a blip—these guys were fantastic to work with. But the attached is a combination of two voicemails from Dean Sigler, the first just funny—Deano being critical of the tone of my voicemail announcement—like, I sounded half-asleep—the second one funny for another reason:

Sigler voice mails.WAV The second message (in the above voicemail) became funny when Pauly called me

laughing his butt off because when Dean was trying to leave that voicemail, he was also pulling into a golf course with Pauly to play a round, and while leaving the voicemail message a bug flew into his mouth and he swallowed it.

Another, just for the flavor. During the trial, which I mentioned was an

unblemished success for us, I learned when we took a break that Paul, on a dare, had promised to Dean Sigler that he would get the words “Jake” and “Springer” on the record. Dean’s dog, Jake, had died about three weeks before the trial, and Jake was a Springer Spaniel. Well, at the very end of Pauly’s questioning of Mark Skibbe, our retained expert (who knows Dean and Paul well), he makes good on his promise.

161

(Skibbe had baseball caps made after that ….) These guys were hilarious and so much fun to work with. But they were good

lawyers too—after all, if you don’t succeed, this stuff stops being so funny. But fortunately it was excellent legal skills throughout, so it remained funny.

On the Lighter Side, Vol. IV Some of the most memorable stuff is simply funnier because it really happened

(and you wonder how fiction could ever be funnier than true-to-life occurrences). This one did not involve tremendous stakes. I was recently involved in an estate

where I represented the Executor as Executor—not individually. Well there came a point where my guy needed his own counsel individually because there was going to be some kind of ruling by the court on something that could affect his personal interests in the estate of his mother.

The court gave him time to get individual counsel. So I get there on the next

court date and I’m introduced to his new personal counsel. After hearing her for two minutes, I almost laugh out loud, searching my memory for who this lady so clearly reminded me of. This poor lady knows she’s in court and knows the person behind the bench is a judge, but she’s asking everybody questions about the most elemental things—including asking her client about whether she can file things, how to do that, etc. She’s probably in her mid-60s, quite fragile, including having a slight stammer—and then it occurred to me—my client had hired Aunt Clara from “Bewitched!” as his lawyer!! I was waiting for her to conjure up a spell that produced a Clydesdale in the back of the courtroom or something. One of the other attorneys in the case was a woman of about the same age as this “Aunt Clara” lawyer, but much more on the ball, and when I mentioned “Aunt Clara” to her, she immediately got it and laughed out loud! We never saw the poor lady after that.

162

“Fromang here!” I remember when I was at my second firm my buddy Mark Broaddus had assisted

one of the equity partners in the firm by representing a client in regard to a Florida probate matter. I forget who everybody represented, and I’m not sure I even knew at the time (maybe 1998?) what the issues were in the case. But Mark asked me to represent him at a telephone deposition to be taken by lawyers down in Florida.

Well the lawyer who had called for Mark’s deposition was a guy named Steve

Fromang. But he never went by Steven or Steve or whatever. He always went by “Fromang.” So he called Mark maybe 15 minutes before the deposition, and said to Mark, “Are you readdddy mannnnnn????” Like we were going to skydive off a bluff or something. He generally outlined what he was going to cover, which I surely don’t remember. But it was hilarious. He mentioned that when he called us back his opposing counsel in the case would be in his office and they would conference us in.

By the time they called back, our court reporter, Dianne Sofiak, was in Mark’s

office and set up to swear Mark in and record all the testimony. Well, this Fromang guy was ridiculously funny. He would ask these incredibly

long, leading, compound questions which assumed facts not established, then when his opposing counsel would object for her million valid reasons, Fromang’s response would be, “Well, Mark, why don’t you take a shot at that question anyway!!” And Mark and I would begin laughing, which, if you know how speakerphone calls go, if there’s any sound on your end of the call, you’re not going to hear whatever’s being said on the other end, so our court reporter would beg us not to laugh so much because she could not get down what was being said, so Mark and I would have to cover our mouths much of the time.

So eventually after a bunch of similar questions by Fromang, he mentioned that

was all he had, so his opposing counsel began to question Mark. Fromang would cast aspersions at her questions—not for their form but more their relevance. At one point she was asking questions about whether Mark was, in fact, engaged in the practice of Florida law when he wasn’t licensed there, and Fromang nearly lost it: “He can practice Florida law if he wants, you can be a ONE-EYED RUSSIAN and practice Florida law—you can be a BLIND ESKIMO and practice law in Florida! That’s ridiculous!”

After interrupting her for about the 14th time, she asked him what his point was.

He doesn’t hesitate: “We goin’ EX POSE YA and all yo’ LIES!!!” (pronounced “Laahs”)… Mark and I are almost falling off our seats laughing at this little repartee between this madman and his very proper and serious opposing counsel. Well eventually they have to call us back—maybe they wanted to go off the record or whatever. When Fromang calls us back, his opposing counsel has left, so the deposition was over.

So he stays on the phone with us, and he starts talking to Mark (single at the

time) about how Mark needs to come down to Florida, Mark can get together with his wife’s lesbian friend living with them at their home and Mark can “TURN ‘ER AROUND!!!” That dude was one live wire. I actually recently Googled him, and…

163

He’s still practicing in Florida, God Bless ‘m!—

The Judge and Mrs. Sondheim As I’ve mentioned, some of the more fun/interesting cases I’ve been involved

with have been with Ken Theisen, a terrific lawyer who initially called me because he had been made the Executor of the Estate of a former client of his. He was doing fine until the case began to involve litigation, and since he had represented not only the Decedent but one or two of the kids, he needed outside counsel to avoid potential conflicts.

So he was referred over to me, and we began to work together. This one took me

up north, to Waukegan, in Lake County, Illinois. As Executor, Ken was trying to collect assets, file a Federal Estate Tax Return, do all the things that an Executor must do. But there was great consternation among Margaret Lindberg’s children because Ken was not going after one or two joint tenancies in bank accounts on which one of the kids was named. She was kind of the black sheep of the family: divorced, did not have steady work, kind of glommed onto Mom (and Dad before he died), perhaps even living with them for a while before Mom died, and her sister was upset that that cash was not passing through the Estate to each of them equally, but instead was going to this “ne’er-do-well” sister directly. She felt that her sister had either manipulated Mom or was, a la Tressell, on the account purely for convenience—not to inherit it after Mom’s passing.

Well, Ken had spoken with Mom about this sister/daughter and about the

accounts, and Mom wanted them to go to her. She basically needed the money more. The angry sister, Susan Carson, was represented by a well-entrenched lawyer up

in Lake County, who had the respect of the judges up there: John Ramsay. The position we took was to tell Susan she has an absolute right, all on her own,

to challenge the joint tenancies, simply as an heir at law and beneficiary under the Will. If she were successful, then she might be able to get her attorneys’ fees paid out of Estate assets, having financially benefited the Estate. And if she were not successful, then Ken (through his attorneys—me) would not have wasted estate resources on a losing case.

Well, what happened was, about a year and a half after Ken had begun to act as

Executor, Ramsay filed a Motion to Vacate Letters of Office—to have Ken removed as Executor—on the ground that Ken had been a subscribing witness on the Last Will of his client, the Decedent, Margaret Lindberg. They cited a case whose name I remember still (even after 10 years), Fearn v. Postlethwaite. It was a case decided in 1909, but it essentially said that if you are a signer as a witness upon a will, you can take no benefit (not a surprise—that’s well-understood) including by being named as the Executor.

164

This, under Fearn, confers a benefit which would disqualify you from acting. So somebody else would have to act—in this case, Ken’s brother Herb, who was nominated as next-in-line.

We had a judge up there, Sondheim, who, every time I appeared before him, was

full of personality—had a big laugh, great smile, very personable. It was fun appearing before him. But whenever something was contested before him where I was involved, he ruled against me! So, while I enjoyed his personality and the easygoing feeling in his courtroom, he always killed me.

Well, Ramsay presented his motion and my response, after thinking the whole

thing over, was that it was too late to bring this kind of a motion. An order appointing an Executor is appealable immediately—meaning, within 30 days of its entry. And because nobody had appealed the ruling, when they were aware of it, bringing a motion to vacate Ken’s Letters of Office as Executor 14 months into the estate proceeding was way too late.6

Sondheim did it again. Ruled against me. (I mentioned earlier that trial judges

never reconsider.) We took an appeal, but Ken was nonetheless immediately removed. I don’t remember how it happened that Ken’s brother was not immediately appointed but he was not. The judge appointed a neutral—a special administrator—to finish the administration.

The bottom line was, we won the appeal, but it took a year and a half to do it. By

that time most of the estate administration had been completed. Also, by that time, Sondheim was off the bench, having retired under something of a cloud. Can’t quite remember what happened.7

Anyway, while I’m on the subject of Sondheim, I actually had had another case up

in Lake County involving not Judge Sondheim, but his wife, Freida Sondheim. His wife was a lawyer as well, and would be appointed as Special Administrator and/or Guardian Ad Litem in different probate cases—not by her husband because he was not yet the probate judge up there—I think at the time it was Judge Dennis Salerno—a very good probate judge.

So while I was at Groble & Groble, Ltd., we represented LaSalle Bank as the

Guardian of the Disabled Person’s Estate of a guy named Arnold Brody, who had been diagnosed with some kind of bipolar or something, and therefore needed a guardian. It was his mother, Rose Brody, who had died up in Lake County, and she actually had had a guardian appointed for her as well. Well, she was the only family known to Arnold, and prior to the onset of her age-related dementia/disabilities, she would regularly come visit her son. She was a hugely aggressive advocate for him, very protective of him, visited him in the VA facility in North Chicago all the time.

Well, following her death, it was learned that Freida Sondheim as GAL in Rose’s

Disabled Person’s Estate, had assisted her in signing a Will which left all of her estate—not to Arnold or his estate—but to various charities.

165

Although an adjudication of disability does not disqualify you from validly

signing a Will, that, along with disinheriting her beloved son (over whom she was exceedingly protective and attentive), combined to make this Will look suspect. So we filed a contest.

This was the first will contest I was ever involved in. Opposing counsel was a

dogged attorney, Harold Lee, who represented one of the charities under Rose’s Will. And Kenneth Radley represented the Executor—a bank?—I cannot remember. But both Kenneth Radley and Harold Lee were staunch opposition for us. And George Groble let me learn on the go with this case. There is really no better way to learn. But it made for a lot of anxious discomfort for me. These seasoned lawyers—primarily Harold Lee—were making me feel like we had done something quasi-criminal in pursuing this case. I think part of what he was feeling, frankly, was a bit of impatience with having as his opponent a fresh-out-of-law school lawyer, clearly learning on the go.

Anyway, we ended up settling the case because, of all things, our client’s disabled

person, Rose’s son Arnold Brody, died during the course of the case. But prior to that, one particular thing was memorable.

I took the deposition of Freida Sondheim, and she was not a happy camper. I was

questioning her on the collaboration of herself and others in the preparation and execution of this Will by Rose.

Rather than simply having Rose sign the will, Freida Sondheim first went to court

and sought the approval of the guardianship court to have Rose sign the will. The judge correctly told her that, if Rose has testamentary capacity, she can sign the will and doesn’t need his imprimatur.

So she arranged for witnesses and a court reporter and a kind of conference room

at the nursing home where Rose was a resident. Well, Rose had trouble with English to begin with (her native tongue was

German), but she was also hard of hearing, so for more than one reason, the transcript from the execution ceremony relating to this Will was truly comical. Sondheim had to constantly repeat her questions and her explanation of the Will to Rose.

When it got to be quite bad, Freida Sondheim would go “off the record” which

means that the court reporter stopped taking down what was being said. When they came back on the record, Sondheim on more than one occasion would ask Rose, “Now, Rose, do you understand what I was telling you about the meaning of having this (or that) provision in the Will?” And, if that were not enough, Rose would frequently maintain that she did not understand (showing Rose understood and wanted to sign this will was, after all, the point of making a record of this!).

166

By the end of the transcript, I guess Rose had said she understood enough so that they felt comfortable with the thing getting signed. But Rose clearly had little understanding. Hence the Will Contest.

I’m pretty sure Judge Sondheim never connected the fact that I had been the one

on the Rose Brody Will Contest (and resultant Freida-bashing) with the fact that I was now Ken Theisen’s counsel on the Margaret Lindberg estate. Coincidence or not, I got treated as though he knew of it….

Speaking of the Lindberg case, after the appellate court had reinstated Ken as

Executor, I had a memorable exchange with a lawyer in that case (whom I like, but had to call him on this) who late on a Friday afternoon sent me what we call a “201(k)” letter, which deals with the parties trying to work out their differences over discovery disputes first before coming into court on Motions against each other to compel compliance with their discovery requests.

I’ll admit that in this particular case (I don’t remember the particular situation,

but just from reading his letter) I was probably overdue in getting him something. I can’t imagine that Ken had much in the way of documentation because he had not been the Executor for all that long.

But the reason I bring it up is, one thing you are exposed to early in your career

(I’m know this is true in every profession—not just in the practice of law) is the CYA letter. Well, in the below attachment, I kind of call Jack Horvath on his use of one. I do recall he was most apologetic after receiving my reply, where I simply wrote right on his letter and faxed it back to him. I think he was actually pretty shocked at my response.

167

CYA letters, similar to letters sent by counsel purporting to “confirm” things that

falsely state what was agreed upon, are incredibly annoying because if you do not respond to them, they take on this air of veracity to which they simply are not entitled, but you always feel as though you shouldn’t have to reply because both you and the other side know they are off base. You still have to reply though.

Bud Smith & Family …. Which reminds me of another case where my opposing counsel, Elaine Sather,

would write “confirming” letters which confirmed things never discussed, or certainly never agreed-upon, and I would have to reply. In one instance, Elaine took offense at our asking, even if Elaine could not make a deposition due to the Jewish holidays (and, thus, the deposition had to be postponed for many weeks), why her associate could not

168

(who was not Jewish). I was only aware of this associate of hers because the associate had appeared at my clients’ depositions one afternoon.

Elaine’s response was twofold: (1) to send a letter to the President of my Firm

complaining that I had been harassing her for her religious beliefs, and (2) to tell us, despite what had been stated at a deposition, that her “associate” was not yet, in fact, a licensed lawyer. Both were very Elaine—ridiculous and kind of showing that she will fabricate things to get ahead in a case when the opportunity arises.

But she was annoying as an opposing counsel in general. When I first got

involved in it, my buddy at Chuhak & Tecson, Mark Broaddus, told me that he couldn’t wait to see Elaine and me go at it—he had had lots of experience with her in guardianship matters by then.

On this occasion, she was representing her client as the Executor of an estate, and

we had brought a will contest on behalf of the eldest and youngest of the Decedent’s nine children. The Bud Smith case.

We had brought a Motion to Compel against her for refusing to give us any

records in response to valid discovery requests. Her basis for not doing so was to assert that even though her client was a Respondent as Executor (the Executor has a statutory duty to defend the will in the event of a contest), the only capacity in which she had any records was as an individual—not as Executor. So she refused, asserting that her client’s “individual counsel” needed to respond to the document requests.

Well, no lawyer had appeared in the case on her “individual” behalf—Elaine was

the only lawyer representing her—and it was a ridiculous ground for refusing to tender the records anyway.

So we get to the hearing, I explain the trouble we’re having with her and her

preposterous position on discovery, and Elaine proceeds to interrupt me and the judge about forty-five times, I’m looking around the room and everybody there is a bit shocked at the way she was addressing the court, and the judge gets so upset with her that he summarily removes Elaine’s client as the Executor for “impeding the orderly process of estate administration.” Elaine turns about twenty shades of red, and now the entire courtroom is amazed at what just happened. By this time, the judge had said, “That’s my ruling!” so I sat down to write up the order removing her client as Executor. Elaine’s still up there wailing at the court, so I silently gesture to the court that the deputy—the bailiff—is standing right over there, go ahead and have Elaine removed from the courtroom (Elaine could not see my gestures). He sees me motioning and looks over there, and calls for the bailiff to remove Elaine—it was just exquisite!! Elaine leaves without having to be thrown out, but it was precious. I thought there was going to be a spontaneous explosion of applause from those in attendance—everybody was either laughing or in amazement at what just took place.

169

Shortly thereafter I got a funny email from Tom Brejcha, who shared space with Ken Theisen, who was co-counsel with me on Smith. He wasn’t present when it went down but had this to say:

From: Brejcha@aol.com [mailto:Brejcha@aol.com]

Sent: Friday, November 19, 2004 2:03 PM To: Daniel Marren Cc: ********@***.com; KFT5555@aol.com Subject: Re: FW: Today’s Order—removing ruth taylor as executor dear dan, Wow! hit her again, hit her again, harder! Well done, and on her part, her client’s removal as executor was very well deserved. --tom brejcha

About three weeks later Elaine came in on a mea culpa motion, seeking to have her client reinstated as Executor, and the court allowed it. But we got our records, which was all I cared about.

Smith got to be really interesting. But I gotta give you some background. Bud’s Appliances Store was a well-known presence on the north side of Chicago.

Bud himself, however, had a bit of a sordid history. When we first got involved, I was still at Chuhak & Tecson and Bud was still alive.

Ken Theisen had contacted me and said that he wanted to refer a guardianship case over to me. Bud’s daughter Ruth Taylor had filed a guardianship petition for him purportedly to protect him from various power plays going on around him and his famous north-side appliances store, which had many years earlier been taken over (and away from him) by his son, Bud, Jr. and the daughter, Ruth, who together were running it. Ruth had been the one seeking to be appointed Bud’s guardian. Ken was asking me to represent Bud to defend against it.

We learned shortly after getting involved that all of his assets were being or had

already been taken away from him—partly, we were told, because Bud’s long-time girlfriend, Marge Thompson (by whom he had had his youngest child, Harold Thompson—Marge had given him her surname rather than Bud’s) was making trouble for Bud in paternity court. Apparently Bud was way behind on child support payments, and Bud’s other children—mainly Ruth and Bud, Jr.—were doing their best to keep assets out of Bud’s name so they wouldn’t become subject to the reach of the paternity court. This, after first taking the position that Harold was not his biological child, but Marge was able to prove that he was. So the whole thing was very hotly contested.

Marge’s counsel, Tom Brejcha (of Ken’s office), felt he was unfairly on the

business end of various sanctions orders, as well as orders enjoining Marge from doing things—including coming near Bud (by the entry of an Order of Protection) and

170

Harold—then 17 but about to turn 18—still technically a minor—had had a very tough life. But he and his father did get along very well despite it all. (Go figure.)

In the usual litigated case there is often some degree of truth to both sides of

every story, the only question being, can one side prove the other’s conduct amounted to something unlawful. In this situation, and particularly with the perspective of the passage of time, I truly understand why Ruth and Bud, Jr. would want to protect Bud, Sr. both from himself and also from past girlfriends (of which he had many), but naturally I completely embrace the point of view of our clients, who were Bud’s eldest daughter, Sue Barnes (who lived out of state and had a different mother from the next seven) and Harold Thompson, Bud’s youngest and the product of his relationship with the tempestuous Marge Thompson. But Harold and Sue had every reason to think Ruth and Bud, Jr. were overreaching.

For instance, Ruth was married to Ron Taylor, who was a Detective in the CPD.

Specifically, he was in the Department’s Division of Financial Fraud. The irony there, as we later learned, was that Ron—possessed of an enormous ego and a certain sense he was “untouchable”—was once reported to the State’s Attorney himself because—get this—he had been busted forging his brother-in-law’s signature upon checks on the Bud’s Appliances operating account to pay off his and Ruth’s credit card debt and for lavish expenses. This apparently never went on his record because he and Bud, Jr. had resolved it between themselves.

This “untouchable” sense was not limited to Ron, because Ruth Taylor also had it.

She had the power, at Bud’s Appliances, to hire and fire family members employed there, and the others feared her for that reason. Not Bud, Jr., who was the President, but the others. Bud had had nine children in all—all daughters besides Bud, Jr. and Harold, and the “middle seven” all worked at the store, or their spouses did.

Even prior to the paternity action getting filed, Ruth and Bud, Jr. had taken steps

to wrest from Bud control of his financial affairs. In about 1990, Bud, Jr. had filed Articles of Incorporation for Bud’s Appliances Store, Inc. and named himself as the President, and he and Ruth were the only officers and directors of record from that point on. There had never been any official transfer of the business by Bud, Sr. to them—they just did this—and Bud, Sr. did not seem to put up much of a stink over it, perhaps too preoccupied with his womanizing, drug use and general irresponsible behavior.

Another notable step taken was when Ruth Taylor engaged lawyers from the law

firm of Damone & Lanner to set up an irrevocable trust for Bud, Sr., into which they transferred the titles to two apartment buildings Bud had purchased (Bud, Sr. had been living off the rent collected from tenants at these buildings for a long time—which was his primary source of income). Along with setting up the irrevocable trust, they had set up a “private annuity agreement” which was, supposedly, the “consideration” received by Bud in return for transferring the titles to the two buildings into the trust.

171

The thing about both the irrevocable trust and private annuity agreement was, Bud, Sr. never actually saw a dime from either during his lifetime. And assets held in the irrevocable trust, upon Bud’s death, were left to Ruth by its terms.

All that is background to what followed upon Bud’s sudden death, which occurred

within a week (or so) of Ken Theisen first calling my office to get me involved in the guardianship to represent Bud.

A will got filed for Bud, Sr. which was dated just days prior to his death. Funky

thing, it defined “family” as well as “my children” as meaning just Ruth Taylor, it named Ruth Taylor as the Executor, and it left all of his assets to Ruth Taylor. See a pattern?

Our clients, Sue Barnes and Harold Thompson agreed to hire us to contest the

will. The middle seven children were born of the same mother, and once we filed, we heard nary a peep out of any of them. Certainly none of them joined us in our contest. At the time, we had no idea that they were under the thumb of Ruth and Bud, Jr.

First of all there was a formal proof of the Will. That’s attached—it took on much

greater significance about two years after it took place.8 In a formal proof of will hearing, the persons who signed their names to a will as

“attesting witnesses” are asked to come to court to testify to the circumstances of the signing. Basically the witnesses are there to verify what they say in the will, where they have signed. What they usually have said (in the language of most wills) is that they, as observers, personally witnessed the signer of the will—the testator—signing the will, appearing to be of sound mind, and appearing not to have been under any improper influence or coercion. Ordinarily, unless there’s an actual failure on the part of the witnesses to have made the proper observation of the testator signing his or her will, and believing him/her to be of sound mind at the time, the order admitting the will to probate is going to be “confirmed.” But it’s a decent opportunity to pin people down to a “story” and also to get some discovery, so if you’re opposing it, you kind of try to get away with as much testimony about the circumstances as you can, as well as what they knew, what they were told, how it all went down, etc.

So in the above transcript, two witnesses showed up (three did, really, but in

Illinois all you need is two, so the third one was excused) and testified to that. But the interesting thing about it was, a couple years later in the proceedings, when we were about six weeks from the will contest trial, one of them, Sam Duffy, one of Bud, Sr.’s sons-in-law, came clean and told us that he had perjured himself at that Formal Proof hearing. He told me, at the urging of not only his wife (one of Bud’s daughters) and of other family members that he felt he needed to come clean about all this. He told me that he felt forced to testify to a fabricated story because of the pressure he felt from Ron and Ruth Taylor—Sam’s wife Sharon was employed by the Store—and there was a not-so-veiled threat of firing if people spoke up about this will-signing.

Before we learned of this little twist, we were not getting great evidence to help us

in our case. Bud had not been diagnosed with any cognitive impairment when he

172

supposedly signed the will. He merely had a tendency to drink, take drugs, and had pretty sizeable mood swings. But he was no longer running his appliance store, so while he was erratic, he was not clearly lacking in the mental capacity it takes to sign a will.

Plus, other than leaving all of his assets to one daughter (under the will), there

was precious little evidence of undue influence either. And nobody else had joined us in the suit, so we could not count on their help.

So as we were getting closer and closer to a trial date, I got a call out of the blue

from a different daughter, Olivia, telling me that Sam Duffy is ready to renounce his testimony from the formal proof of will hearing, and to say that he lied under oath because he was pressured into it by both the daughter—Ruth Taylor—and Ruth’s husband. And this daughter—and several others—wanted to join us as additional plaintiffs in our case.

The formal proof testimony from both Sam Duffy and Dr. Herbert Asher—the

other witness to testify at the Formal Proof hearing before Judge Cusack—was that they along with another witness—Anna Molotov—an employee at Bud’s Appliances Store, and a notary—Pam Stevens—had received a call from Ron Taylor on the day after Thanksgiving 2003 to appear at Dr. Asher’s north side medical clinic late in the afternoon, where they all watched while Bud signed this will, then everybody left.

So when Sam Duffy decided to come clean, we were told he would testify now

that Ron Taylor got these people to sign a document they had not seen Bud Smith, Sr. sign—though someone had signed it—and then Ron somehow got it pre-notarized by someone from his CPD office.

So we took the deposition of Sam Duffy and he did, in fact, testify to all this.

Then we sent a subpoena to Pam Stevens to get her deposition as well. Within a few days, I got a call from the attorney for Pam, telling me, “Pam feels horrible about this.” I hadn’t said anything to him about Sam Duffy renouncing his prior testimony yet, so I asked what Pam was feeling horrible about. He said she felt horrible about the fact that she had pre-notarized a document that she hadn’t seen executed.

So now I’m thinking, wow, this is big. So we noticed up her deposition, and

between the time I spoke with her attorney and the day of her testimony, her story had slightly changed. But I didn’t learn this until I was actually in the middle of her deposition. What had been related to me as a story of having notarized a document that she hadn’t seen signed—or pre-notarizing a document—became one where she’s now saying she was asked by Ron Taylor, with whom she works at the Belmont and Western District as a fellow detective, to notarize his signature on what she was told was a 5-day eviction notice. Here’s her testimony, at least where I’m asking questions:

Q. Could you please state your full name for the record.

A. Pam M. Stevens.

Q. Could you spell your last name.

A. S-t-e-v-e-n-s.

173

Q. And what's your current address?

A. ************* Avenue, Chicago, Illinois,606**.

Q. You're a police officer, right?

A. That's correct.

Q. I assume you've given depositions or testified before then?

A. That's correct.

Q. Just for the record then, I'm just going to

Page 5

state, you and I have to speak independent of each other. I will attempt to

wait until you finish with your last answer before I ask my next question, and

if you will, wait until I finish my question before you give your answer.

Is that understood?

A. Yes.

Q. And another one you appear to be very good at, and that is giving spoken

answers rather than nods of the head or "uh-huhs" or "unh-unhs."

Do you understand that as well?

A. Yes.

Q. If you ever don't understand a question, please stop me and tell me you don't

understand the question. I will try to rephrase the question.

Do you understand?

A. Okay.

MR. MARREN: Let the record reflect that this is the discovery deposition, taken

pursuant to Subpoena, of Pam Stevens and taken this date and time by

agreement.

BY MR. MARREN:

Q. And you're represented by counsel today, correct?

Page 6

A. That's correct.

Q. And that's Mr. Stern?

A. That's correct.

Q. Ma'am, I've already handed you what has been previously marked as

Molotov Exhibit No. 1. Have you had a chance to look at that document?

A. Yes, I have.

Q. You'll notice at the end of the document it has a page that appears to have

your notary stamp.

Do you see that?

A. Yes.

Q. And is that a true and accurate copy of a notary stamp that you affixed to the

original of this document?

A. Not this document per se, no.

Q. Okay. Well, let me back up then. What do you know about that document

that you're holding in front of you right now? And I'm looking at the very

last page of Exhibit 1.

174

A. I don't know anything about this document.

Q. I take it from your answer that you've never seen the whole Exhibit 1 before;

is that correct?

Page 7

A. That's correct.

Q. And what, if anything, have you seen from Exhibit 1 before?

A. I don't recall seeing any of this.

Q. Did you notarize a document for Ron Taylor on or about -- well, sometime in

2003?

A. Yes.

Q. And is it true that you were asked by Mr. Taylor to notarize a document that

you had not seen the witnesses -- strike that -- where you had not witnessed

the signatures of the people for which you were notarizing the document?

A. No, that's not true.

Q. Okay. What, if anything, do you know about -- did you ever pre-notarize a

document for Ron Taylor?

A. No.

Q. You never did?

A. I never pre-notarized a document, no.

Q. How many times, if any, have you notarized a document for Ron Taylor?

A. One time.

Q. And you know who Ron Taylor is, correct?

A. Yes.

Page 8

Q. He's a police officer as well?

A. That's correct.

Q. Do you work with Ron Taylor?

A. Yes.

Q. Do you currently work with Ron?

A. Yes.

Q. Where do you work?

A. Belmont and Western.

Q. What district is that?

A. Area 3.

Q. Area 3. And what is your title?

A. I'm a detective.

Q. And how long have you been a detective at Area 3?

A. Approximately nine years.

MR. MADSEN: I'm sorry, did you say 29 or nine?

THE WITNESS: Nine.

BY MR. MARREN:

Q. And was Ron Taylor working at Area 3 when you began working there?

A. I believe so.

175

Q. And you had just testified that you had notarized a document for Ron Taylor

on one occasion.

Page 9

Do you recall that occasion?

A. Yes.

Q. What do you recall about that occasion?

A. Well, he had been telling me that he had property that he wanted to evict the

tenant from. And I remember the property was over on Lincoln Avenue. And he

asked me if I would notarize a 5 Day Notice for him because he wanted to get this

person evicted.

Q. And were you at work at the time?

A. Yes.

Q. And what happened next?

A. He produced a document, and I notarized it for him. It had his signature on it.

Q. It had "a" signature on it?

A. His signature.

Q. It had Ron Taylor's signature on it?

A. That's correct.

Q. And how many pages was the document?

A. It was just one page.

Q. One page.

A. (Nodding)

Q. Now, you see that on Exhibit 1 there appears to be at least the stamp of your

notary seal on it.

Page 10

Do you see that?

A. Yes, sir.

Q. Do you have any explanation whatsoever for why your stamp would be on

this document?

A. I can't explain it other than the fact that he may have switched documents on me

when I was distracted or something. Because other than that, I definitely didn't do

this, notarize a will.

Q. Okay. When, if you recall, did this conversation and the notarization upon

the document that you do remember, when did that occur?

A. It was over five years ago. I really can't recall the exact date.

Q. But this document right here -- again, you've had a moment to look at Exhibit

1, correct?

A. That's correct.

Q. And this is a copy of a Last Will and Testament of Bud Smith, Sr.

Do you see that?

A. Yes, sir.

Q. Have you ever seen a person by the name of Bud Smith, Sr.?

A. No, sir.

176

Q. If you turn to the second to last page of the

Page 11

document, it has the signatures of Mr. Smith himself, or it purports to have

the signature of Bud Smith,Sr., on it; it appears to have the signature of a Dr.

Herbert Asher; and it purports to have the signature of Sam Duffy. The page

on which the notary seal appears, the last page of the document, has the

signature of someone named Anna Molotov.

Do you know those people at all?

A. I have no idea who these people are.

Q. Did you ever notarize a document, to your knowledge, involving -- well, this

document at all?

A. No, sir.

Q. Never did?

A. No, sir.

Q. And you're quite sure that whatever document you did notarize for Ron

Taylor was something other than a will, correct?

A. That's correct.

Q. You never traveled in a vehicle with Ron Taylor to the office of Dr. Scott

Devins up on North Milwaukee Avenue to participate in the signing of a will?

A. No, sir.

Page 12

Q. Mr. Sam Duffy, who is sitting here today across the table, do you recognize

him at all?

A. No, I've never seen him before.

Q. Let me just be sure. I'm just going to be a little bit longer. Can you make out

the signature below the notary seal there? Does that appear to be your

signature?

A. Yes, sir, it appears to be my signature.

Q. You recognize the handwriting and so on?

A. Yes.

Q. Have you had any conversations with Ronald Taylor regarding your

testimony today?

A. Yes.

Q. How many conversations would you say you've had with Mr. Taylor?

A. Numerous.

Q. Can you tell us, for the record, when the first of those conversations was, if

you recall.

A. I remember it was last year around Thanksgiving when we had the first

conversation about this.

Q. And what did Mr. Taylor say to you? Well, first of all, where did the

Page 13

conversation take place?

A. At work.

177

Q. Now, I mean, is Mr. Taylor, is he a – in terms of rank at the police

department and at Area 3, what is his title there?

A. He's a detective.

Q. He's a detective. Is he a lateral from you?

A. That's correct.

Q. So he doesn't hold any authority over you?

A. No.

Q. Now, when you had this conversation, was anybody else present besides

yourself and Mr. Taylor?

A. There were people there, but nobody was really paying attention to what we were

saying.

Q. And what did Mr. Taylor say to you on that occasion?

A. He asked me if I remember the document that I notarized for him a while back,

and I said, Yeah, I remember, it was a 5 Day Notice. And he was like, No, it was

my father-in-law's will. And I'm like, No, it wasn't. And he goes on to tell me the

story about Well, this is what I want you to say if they call you for a deposition.

Page 14

I guess they had -- I don't know if he had been called for a deposition previously

or what was going on. But I was under the impression that they were going to be

calling me for a deposition. And he basically was prompting me on what he

wanted me to say.

Q. Did he tell -- what did he say you should say?

A. He just said that I should say that he picked me up at the police station and took

me to some doctor's office where I notarized the will. And basically, that was it.

And that I told him I couldn't do it because it didn't happen.

Q. And did he show you a copy of the document that he had?

A. I never saw the document. That's why I was really outraged that he would even put

me in this position.

Q. And what else did he say, if anything?

A. Well, I told him at that point whatever's going on, you need to straighten it out.

Because if they call me, I'm not gonna lie for you, you know. And I was just really

angry and upset with him. And I still am.

Page 15

Q. And you said earlier that you had numerous conversations with Mr. Taylor

about this.

A. Right. Well, after that -- and I remember that so vividly because it was around

Thanksgiving time, and it kinda upset my whole holiday. When I first got the

subpoena and I contacted my attorney, you know, to set up a date or whatever, I

guess somehow he knew about it. And he wanted me to -- why didn't I tell him

that I had been subpoenaed or whatever. And at this point I just didn't even want to

talk to him anymore about it. You know, I asked him not to talk to me about it

and, you know, just to leave me alone. I was going to give a deposition.

178

Whatever's going on with his family, he'd have to deal with it. It's not my problem.

I don't have anything to do with this. You know, leave me out of it.

Q. Did he ever threaten you in any way?

A. Not directly, but he made subtle things like, Oh, they'll -- you know, you might get

in trouble at work or some... I said, Hey I didn't do anything wrong. Whatever

happens is on you. I didn't do anything wrong.

Page 16

Q. And did you have subsequent conversations with him?

A. After -- I guess after he realized I had been subpoenaed, he came to me again. And

he was basically begging me to say that I didn't remember. And I told him I can't

say that, because I do remember. And I know what it was. And I would remember

going to a doctor's office. I would remember notarizing a will in front of how

many other people, witnesses it was. I would remember that. And he basically

wanted me to say that I didn't remember. And I told him I couldn't lie for him.

Q. When was the most recent occasion that you spoke with Mr. Taylor?

A. Actually, I think it was last Thursday. He brought a police report, and he showed

me the police report. I don't know if it had something to do with him or not.

(Indicating)

Q. Mr. Duffy?

A. Yeah. I believe -- are you his brother-in-law?

Q. Yes.

A. Oh, okay.

Page 17

Q. Mr. Duffy is.

A. Right, okay. Well, supposedly I guess he thought he was threatening him and --

about – about this whole situation. And I guess he had made a police report against

him.

Q. Against Mr. Duffy?

A. Yeah. And he was saying, Oh, see, they're gonna tried to get you fired. They're not

gonna try to get me fired. I didn't do anything wrong. And, you know, he kinda ran

off after he saw how angry I was getting with him. And then, that was the last

conversation. I haven't talked to him since then.

Q. Getting back to the first conversation you had with him, did he go into any

kind of detail about the circumstances of this will signing other than the trip

to the doctor's office?

A. No. He just -- you know, he's been saying it's like a family feud. They been

fighting over I guess whatever his father-in-law had left. And I guess his wife was

in charge of everything and her sisters and brother-in-law, and they're all fighting

about the money or whatever, you know, it is to be divvied up then.

Page 18

Because when he first brought it to me, I was like, You need to straighten this out

with your family, because I can't lie for you. And if they call me, I'm gonna have

179

to tell them the truth. And he was like, Well, I can't settle with them, they're

unreasonable, you know, that type of thing.

Q. He didn't say anything about the actual circumstances of the signing of the

will, did he?

A. What do you mean?

Q. Well, you know, how it actually went down, rather than your involvement,

what actually happened regarding this will.

A. No.

Q. Did he talk at all about his involvement in the preparation of this will?

A. No.

Q. Did he say anything to you about having had similar conversations regarding

this will with Mr. Duffy?

A. Yes.

Q. And what did he tell you about that?

A. I'm not sure if he's the person he was talking about, but he said his brother-in-law,

so I'm

Page 19

assuming maybe it's him; that he had gave a deposition or testimony to the effect

that he was there and he had signed a will, and then he changed his story about he

wasn't there, he didn't sign the will; then he changed his story again saying he was

there, he did sign the will. You know, like it was he couldn't make up his mind.

You know, he kept telling conflicting stories about what was happening.

Q. And do you know why he mentioned that? Did he say what...

A. Well, he told me that -- I guess his brother-in-law was the only one that was, you

know, changing his story about what really happened.

Q. And which conversation did that get said in, in the original or subsequent

conversations, if you recall.

A. I think it was -- it wasn't the first conversation. It might have been after that,

sometime after that.

Q. Were you ever contacted by anyone else besides Ron Taylor about having

possibly notarized this will?

A. Nobody other than you.

MR. MARREN: Okay. I've got nothing further.

Suddenly our stinky-allegations-but-no-solid-evidence case had strong evidence

to go along with the stink. Now it’s not just Sam Duffy saying there was deceit involved in this will getting signed, we have an actual detective in the CPD saying she, herself, was fooled by Ron Taylor in his scheme to have all of Bud Smith’s estate left to Ruth Taylor.

We also engaged a terrific handwriting expert, Ellen Schuetzner, to examine the

will and a lot of contemporaneous samples of Bud, Sr.’s handwriting, and, sure enough, she concluded the handwriting was an issue worth pursuing. So we asked leave to amend our pleadings as well, and the case got a big boost. Sam’s testimony, as well as

180

Pam Stevens’, of course, though disputed by Ron Taylor, would not only help us in our case but would possibly be the basis for a criminal charge against him for subornation of perjury.

By this time I was at my new office. When I left Chuhak & Tecson, though Sue

Barnes had come with me, Harold wanted to remain with C&T. Through various gyrations, Harold ended up being represented by a new firm, mainly a pretty tough and irascible lawyer named Bob Caudill. Now, if Elaine Sather disliked me, she utterly loathed Caudill. He posed a significant threat as a terrific trial lawyer—older and clearly battle-tested. During Harold Thompson’s deposition, at a point when Caudill left the room to allow his associate to stand in for him, Elaine called Caudill a “jag-off” on the record. It was my understanding that Caudill sued her or at least reported her to the ARDC for that.

At some point, however, Harold (and his mother Marge) had some sort of falling

out either with Caudill or with Harold’s other siblings, so Harold terminated him, leaving Caudill representing these other siblings who had not contested the will, and who were employees at Bud’s Appliances. At any rate, Ken Theisen’s office, which had initially referred the guardianship matter to me, got back involved, but only to represent Harold—not the others.

We eventually settled the case, but only after Ron Taylor had been reported to the

Internal Affairs Department of the CPD.9 Part of the reason for settling (rather than going to trial) was, winning the case would only have been the first step—we then would have had to file suit to recover assets back into the estate: the real estate that had been conveyed into this “irrevocable trust”—which we would have had to contest as well.

With all the twists and turns, other family members trying to join our suit well

into the case, learning that the Formal Proof of Will hearing testimony involved perjury, and all the infighting among the detectives in the Chicago Police Department…. That Bud Smith case was fascinating.

What follows is another little dabbling in Ye Olde Smashmouth Demand

Lettering for your enjoyment:

181

182

183

184

As you might imagine, I do get a kick out of sending (as Ken Theisen calls them)

“grenades” over the bow. They only work, however, if you have good “material.”

Dave Welch I remember getting involved in a situation where we represented the sister of the

appointed executor of either Mom or Dad’s estate. The main asset in the Estate was the

185

family business. I don’t remember what they did. But the Executor was the president of the Company as well, and in our client’s view was a bad guy who stole money from the company and would spend it on illicit substances in which he would indulge at the office, at home, wherever.

Before I got involved, Mark Broaddus from my office had brought a demand for

an accounting of the business in the probate court, since it was the only real asset. So instead of complying with an order to account, the Executor as President took the business into bankruptcy, but before doing that, he paid himself and certain allies hefty bonuses, paid his attorneys’ bills, etc. Naturally, he had not accounted for any of it, because once you take a business into bankruptcy, so long as it is legitimate, an automatic stay is imposed and no court has jurisdiction to enter any order and nobody can take steps to collect on debts against the debtor-company as long as the automatic stay remains in place.

Mark asked me if I would be interested in helping out. So I went and read the

court file, then the bankruptcy court file (which by that time was something viewable on computer in adobe acrobat). I also read the rules and case law on things like, how do we “lift the stay” and so on. Well, I cannot say that I ever got a great handle on all the procedural aspects, but one thing that happened was, a Trustee in bankruptcy was named, and he hired a lawyer in his own firm to help—David Welch. I mention him because I thoroughly enjoyed observing him going about the business of investigating the situation with this Executor/President of the Company, then, having collected sufficient information, to report back to the bankruptcy court and making recommendations on what to do.

He initially sent out document requests to the President, looking for all records

which would assist him in putting together the pieces of what make this company tick, the past-couple years’ history of money in, money out, etc. He also interviewed our client, the President/Executor’s sister, and asked her what she knew about the company, and, finding she had a lot of knowledge about the business, whether she might be interested in getting actively involved in the case. She had worked at the business over summers in college, maybe for a short while following college, but otherwise had gone into the corporate world outside the family business.

Then Welch noticed up the deposition of the President. He took that guy’s

deposition in Welsh’s office. At one point, the President asked him what would happen if he refused to cooperate or to produce documents. And David said to the guy (who did have an attorney with him but perhaps this guy didn’t know what he was doing any more than his client did—after all, the lawyer counseled the guy to take the case into bankruptcy), “That’s all right—but I should tell you that your refusal to cooperate will be made a part of my report and will affect what I end up recommending to the court.” He said this in the most normal, non-threatening tone of voice. It hung him up (a la Jimmy Buffet!).

Apart from how cool a customer Dave Welch was, I found his position enviable.

Dave only represented the Trustee in Bankruptcy, and once he had collected all

186

necessary data, he reported to the court. I remember going to bankruptcy court one afternoon to attend the giving of one such report. (Maybe it was written too, but I don’t recall that to be the case.) Dave did a soliloquy for about 45 minutes covering everything about the debtor company, the cooperation (or non-cooperation) of the acting officers and directors, and ended up recommending things like, a return of the bonuses that had been paid in the advent of the bankruptcy filing, same with the attorneys fees, etc. And (whether it was that day or some other day) he recommended that the president be relieved of his duties, and to put our client in as the acting president—who was very on the ball and also motivated to clean up the place and make it work. She could not have been happier with how things turned out in bankruptcy court.

The “enviable” part was, Dave didn’t have a burden of proof so to speak. He was

not an advocate of any particular person (other than the trustee). Which made him kind of an arm of the bankruptcy court. He had no “dog in the fight” and so it could not be said that he was biased whatsoever. He didn’t have to persuade the court of anything other than that he was diligently doing his job, leaving no stone un-turned, etc. The only thing he had to worry about (on paper, anyway) was if someone thought he was not acting diligently and in good faith. Clearly he was in this case.

So what makes that enviable is, so long as it’s done properly, he never has to give

a client bad news about the case, he does not have to worry about the court looking askance at any argument he’s making as if he has a burden of proof. Which is what the rest of us have to do all the time. So in some ways it would be refreshing to have that kind of job. And he did it superbly, too.

There was a bit of a tragic end to that situation. Maybe four months after being

relieved of his duties, the brother/former President was found dead in his bathtub in Jamaica where he had a place. He had overdosed on heroin or something. (Our client had told us that this guy was a frequent “user” but this was incredible.)

After the passage of some time, and perhaps after the case was over for about a

year, I had reason to be in touch with Dave Welch and told him how much I had enjoyed working with him. I couldn’t resist, I also added that I’ll always remember him as the guy who killed the company’s president. Got a laugh out of him. Li’l gallows humor.

Charlotte Barth Has An Odious Epiphany In the Estate of Charlotte Barth I represented a charity that had been included in

Charlotte’s Trust as her main beneficiary. I was contacted by the then-Director of Teen Living Programs, David Myers, whose charity tried to provide a safe haven for teenagers in tough neighborhoods to do their homework and otherwise provided a place to hang out after school that didn’t involve drugs or gangs. Anyway, in this case, we were advised that prior to the lady’s death, her two kids had succeeded in getting the Trust revised to put them back in and to remove the charity altogether.

Normally one would think that it would be natural for a mother to make her kids

the main beneficiaries of her estate. But in this case, we learned that about a year and a

187

half before the Third Amendment to her Trust which included the charity, that son and daughter had actually sued their mother in Chancery Court in Cook County to get control of her assets. As part of the case, Mom’s lawyers, very savvy, had obtained an order of protection against the son and daughter, requiring them not to contact their Mother during the course of the suit which they had instituted.

As a direct result, Charlotte was upset at her children seeking to get their

inheritance (or control of it) before she had even died, so she did the Amendment that excluded them. They had received some $1 million apiece before that in lifetime gifts already. In the course of looking through the court file for the Guardianship proceeding that they had commenced for their mother to find out what had happened, I learned the following:

Son and daughter quickly resolved the Chancery case, nullifying the order of protection

Son and daughter immediately filed the Guardianship case in Cook County, alleging that Mom lacked the ability to make personal and financial decisions.

As part of the guardianship filing, they had obtained a medical report from a Doctor of Osteopathy that concluded not merely that Mom lacked the ability to make personal and financial decisions (and therefore was an appropriate candidate for a guardianship), but also indicating that she “lacked testamentary capacity” and had for some time.

The son and daughter had feared that, during the time they were unable to exert

control over their mother (after they had sued her), she might take steps to change her estate plan to exclude them. Well, she had.

A Guardian Ad Litem had been appointed by the guardianship court—Karen Gaylord—who interviewed the son and daughter and, essentially, completely adopted their point of view without consulting others. So she collaborated on all of these steps to be taken.

At some point they learned of this Amendment which left the bulk of Mom’s estate to the charity (the “Third Amendment”). They swooped into action. The guardianship had been pending for a couple months. First they, with the assistance of Karen Gaylord, contacted the Osteopath to obtain a modified medical report which stated that (contrary to his original “lacks testamentary capacity” conclusion) Mom had regained “marginal testamentary capacity.”

With this “marginal testamentary capacity,” they had Mom sign something that revoked all prior wills she had done, also they had her specifically revoke the amendment that left Mom’s estate to my charity.

188

Then they asked that the Guardianship case be transferred down the hall, from the guardianship court to a mediation (settlement) judge. Ordinarily such steps are taken when there are parties at issue over pending litigation. Here, however, there was nobody there to represent the Charity, and no litigation had been filed other than the guardianship itself.

Not long after, an “Agreed Order” was entered which simply accomplished

miracles for them—not in my best case did I ever get a court to enter this kind of order. It:

(1) found Charlotte to be a disabled person requiring an estate and personal guardian;

(2) found that David and Doris, the son and daughter, were the “natural objects of

the bounty” of Mom, meaning that it’s natural for them to be the primary beneficiaries from her estate plan;

(3) forgave a loan to the son of $200,000.00 which he had borrowed years prior; (4) paid the son and daughter’s legal fees in the Chancery case totaling $120,000.00; (5) revoked the amendment which had named the charity as beneficiary; (6) determined that immediate annual tax-free gifts should be made to the son and

daughter and certain grandchildren; (7) provided that a one-time gift of $675,000.00 should be made to son and

daughter as a means of reducing Mom’s taxable estate at the time of her death; (8) paid the Guardian Ad Litem a fee of $15,000.00, while finding that fee plus the

other attorneys’ fee payment to son and daughter’s attorneys from the Chancery case (of $120,000.00) to be “fair and reasonable” despite no party having an opportunity to question any of these round numbers whatsoever.

At any rate, Mom died not long after this nutty “Agreed Order” had been entered,

and by chance, my Charity found out about the death and also that they had been named as the primary beneficiary in Mom’s will and trust.

So I prepared a Motion to Vacate the Agreed Order, as well as a Complaint which

sought to rescind all that had happened in the guardianship case, but … I kind of had fun with it—in cases like this, the stuff writes itself, really.10

Among the things I included in the complaint were all these rather sarcastic

captions. Given the egregious liberties this poor lady’s children were taking in regard to her assets while making her somewhat physically afraid at least of her son, the sarcasm in my view was well-deserved. But it resulted in the GAL calling me and leaving a

189

message on my voice mail asking me to withdraw the complaint because she found it “odious.” I saved the voice mail because it made me laugh. After calling the allegations in the complaint odious, she stated, “You have attacked me in a professional manner. And I must defend myself.” I didn’t know if she was complimenting the manner in which I “attacked” her or not!

Some of the “odious” captions (keep in mind, David and Doris are the bad guys): David and Doris Just Didn’t Get That Charlotte Could Act Upon Justified Feelings of Anger At Them

David Consults with his Attorneys and Forms a Plan: A New Will for Mom; David as Ostensible “Advocate” for Charlotte, but Primarily, a Shield to Protect David

David and Doris Learn of Amendment No. 3

D & D’s counsel recommends Charlotte sign a new Will

A Return to Court: Cross-Petitions for Appointment of a Guardian

David Begins Rehearsals With Charlotte before she meets a doctor to evaluate her for testamentary capacity Doris’s Continued Non-Contact With Charlotte, Even Following the Dismissal of the Chancery Case David Succeeds in Persuading Dr. Cox and GAL Karen Gaylord To adopt his “World View” as to Newman and Benjamin

June 5, 2000 – A Day of Revocations—Charlotte’s Revocation of Amendment No. 3 and “All Wills and Codicils” Leaves David & Company Uneasy

The Parties’ Joint Pre-Trial Statement’s Treatment of Amendment No. 3: Charlotte’s Physical Revocation Means Nothing

David’s and Doris’s Work is Done; Everybody Gets Paid In this case once again I had terrific co-counsel, this time Jerry Crotty, who has

his own firm. Jerry was a most accomplished litigator, but had no airs about him at all. Impeccably dressed, but always down to earth. He and I had a lot of fun taking depositions of the two kids—David and Doris—and others. His client was a friend and the accountant to Charlotte Barth who had his own claims against the Estate, but also was a target of claims by the kids that he manipulated Charlotte to be included in her estate plan.

190

Well, the trial court denied my Motion to Vacate, so we took an appeal, where we

had a fascinating hearing in the appellate court. Nowadays (since about 2006) the appellate courts in Illinois record and publish online the oral arguments, but they didn’t when this happened—in 2002 or so—but I wish they had. It was memorable. When the “odious” GAL made her arguments, the appellate panel peppered her with questions about the “back room deals” that occur in guardianship court. I enjoyed every moment.

When talking about the second medical report that the GAL obtained using the

Osteopath who had previously determined the Mom to be unable to make personal or financial decisions for herself, this time explicitly finding Mom to have “marginal” testamentary capacity, one of the Justices, Mr. Justice Karnezis, animatedly raised his arms, saying “Charlotte must have had an EPIPHANY!”

Oh, it was enjoyable. We won the appeal, and got a reversal of the trial court’s

order. One of the attorneys, a seasoned veteran in attendance, told Jerry Crotty at some bar event that evening that it was the most animated he had ever seen an appellate panel get during oral argument. Quite satisfying….

That appellate opinion was also published. Estate of Barth, 339 Ill. App.3d 651,

792 N.E.2d 315 (1st Dist. 2003).

Jim Pranger One of the best things Peter Latz did following my arrival at my current firm was

to hire a fella who suddenly found himself nearing unemployment when his current firm was going in a different direction in commercial litigation: Jim Pranger. Jim and I had worked together at my last firm, when Jim basically came over there upon the departure of Fred Schmedley.

When I had been told that Peter had worked out an agreement for Jim to come

over to join us, and after getting a call from Jim just to ask me about things like, what’s the dress code, what time do people start, what sort of monthly billing is expected, etc., I decided to put this together and emailed it to him, which, of course, is tongue in cheek:

*************** Jim,

You had asked me about things like, what’s the dress code around here. Thought

I’d give you a kind of primer on what you might expect, so give it some thought before you

start thanking me for passing your name on to Peter.

Don’t get me wrong—’swonderful and ‘smarvelous around here most of the time.

But maybe take this as a pseudo-office handbook.

First, if you have winter wear, you might want to bring it for the wearing-around.

Especially if you end up in the Tamara Bloom Memorial Corner Office. Tammy Bloom

191

was a Ivy League-educated lawyer. My image of her is her sitting in that corner office, in

her full-length winter parka and knee-high boots while the wind and weather blew through

a partially-ajar window, with at least two inches of snow accumulated on her windowsill.

Using her masterful skills in post-it note technology, she attempted to erect a sort of post-it-

note wallpaper thing over her entire window, but frankly, the gale was just a bit too brisk.

But, the sweetheart, she smiled right through it all. At least I think that was a smile. It may

have been frozen nasal drip…. We think she may actually still be in that office, frozen

under the desk or something. Peter has recurring dreams of running the Bates Motel and

looking up at the house behind the motel and seeing the silhouette of Tamara Bloom up in

one of the windows in a rocking chair…. (“OH GOD!! MOTHER!! BLOOD!!”)

Unfortunately, being assigned a different office might not remove the need for the

winter wear. Put it this way: Peter simply has this raging fire burning deep within. So the

temperature is set to a rather…invigorating level. It’s not really an Ebenezer Scrooge, ‘only-

one-piece-of-charcoal-on-the-fire-CRATCHIT!’ thing. (I don’t care what comments I hear

at the watercooler. Which is now an ice chips thing.) It’s not that at all. It’s simply this

raging fire within. I’ll say this: the thermostat inhibits napping at one’s desk.

I hearken back to the episode of Barney Miller where one of the prisoners had this

problem, where even if the room temperature was normal, he was personally boiling, with

some kind of rare medical condition where his usual body temperature was 104 and he

needed to be placed in a cooler or he might faint or worse. The cops thought he was just

looking for a way to have them open the lock-up. Well, with Peter it’s something like that.

Does that make him a bad person? Not really. It keeps him from getting too blotchy (is

the scuttlebutt). But, for instance, his “class outside” idea last January didn’t really go over

too big.

192

Also, if you’re in Tammy’s old office, that means you get to be this/close to Mark

“Jersey Mary” Singler. Mark’s a great guy. There’s a Far Side cartoon where you see a

building off in the middle distance with the sign out front saying “County Office Building”

at night, and there’s one light on in one of the upper offices with somebody at their desk,

and the caption is, “Alex Brumbly, county employee, decides to stay late to ‘catch up on

some work’.” That’s Mark. But don’t get him started on national or local politics.

Remember the way they portrayed adult voices on old Charlie Brown TV shows? Don’t

get him started. Jus sayin. And don’t hide his Bar-B-Q sauce. Makes him crazy.

Rest assured, you will quickly become desensitized to the look of the floors. I think

in psych class they call it “sensory adaptation syndrome.” Underfoot we used to have

something like what other offices call “carpeting.” Despite the lush velour it appears to be

if you squint and just use peripheral vision and pretend, it is, alas, just old. Like, Silent

Movies old. And it wouldn’t matter, but for instance, if during the “Jackass” portion of our

day you want to play chicken on a four-wheel cart around the office, you might end up

hitting a bad spot and go flying.

By the way, if having an ordered world is your thing, you can rest assured that, like

clock-work, every two weeks, it is announced by cyberbulletin that we just didn’t have

another attorney meeting. That way you know it’s Tuesday afternoon, for instance. Which

can be very helpful. Actually, we do have meetings, but only when Paul Francixzqkgowiztz

is going on YET ANOTHER vacation, and then he kindly lets us handhold his interesting

gaggle of clients, most of whom are, I believe, technically speaking, Far Side characters.

Even Far Side characters deserve their day in court, Jim. Plus, “Fee Petition” Paul hasn’t

yet divested them of all their worldly possessions.

193

Have we talked about Amicus? My goodness YOU * ARE * IN * FOR * A *

TREAT!!! We have software for filing and calendaring and docketing that just cannot

compare. Or so I hear. We haven’t actually yet had the “licensing” meeting where

everybody gets a license to use it. But I hear-tell that it’s life-changing! So if you haven’t yet

picked a religion….

What else….

If you think you’re going to come in here and just become Mr. Popular, well you

can forget that right this instant, Mister. I don’t care about the alleged separated-at-birth

similarities between you and one Chuck Norris.

Because that distinction is currently held by ME! As a for instance, when I first started

here, Peter liked me so much that he kept me in the ante-office (that Matt Swank now

occupies), right outside Peter’s, which didn’t have a real phone—just this VERY COOL

cordless jobber that you needed to hold towards the window to get reception. Eventually I

was given one of them there “pool” phones connected to the firm’s actual phone system,

and I lost my special status.

Then everybody was so desirous of me sharing my “talents” that I was told to save

all my documents on something called an “S” Drive which—I know—sounds like a cattle

ranching thing—rather than leaving all my treasure trove of materiele merely on my

computer’s hard drive.

Then eventually because my workin-man’s office apparently posed a “threat” to the

fire department,

I was asked to relocate.

194

So, sadly, Peter worked feverishly to move all of my things into an office as far as

possible away from his, which we recently leased in an area which is technically part of

Cicero, and now I practice in something called sub-basement B. He said something about

taking this can of D-Con and trying to handle our cockroach problem while I was down

here….

So while I am just as popular as ever, I just have to be popular over here by myself. Paul

Francizxgowanz is over here too, but he only comes in for short stretches to alienate our

staff, so most of the time Perry Range occupies Paul’s chair and does important searches of

his past glories on the internet. And Perry will never be confused with me in popularity

(just ask me!). But I swear moving my office to sub-basement B and them taking away my

red stapler and removing me from the payroll was NOT because anybody was, heh heh,

getting SICK of me or nuthin’. It was a numbers thing. It also had NOTHING to do with

all that Partridge Family music blaring from my office. Nor the Christian Rock hour

around 3 every day. I was told this explicitly.

So… what else…?

In the “Word-To-The-Wise” category: You missed the office Christmas party,

which was held at Peter’s house last Friday. But (and I’ll just whisper this part, cuz it’s just

between us): don’t cross Peter’s wife Michelle by beating her in ping pong. And if you happen to…let her

beat you senseless in the rematch. It’ll go better in the office for all of us!

If you’re wondering about the hours we’re open. Technically we are never closed.

We actually have a satellite office (not just in Cicero, but) in Mumbai, where estate

planning questions are handled in the off-hours, not unlike having an answering service.

But with a bit of an East Indian flavor. As for the personnel, sometimes we do get

Christmas off. And usually if we get Christmas off, we’ll get New Year’s too. But the day

after Thanksgiving isn’t known as “Black Friday” for nuthin. Most nights you are allowed

to go home for dinner. We do have a nice new, state of the art punch clock.

Oh. Also. Here we all wear at least 17 pieces of flair. But if you want to…“express

yourself”…by wearing more, then suffice it to say: That is encouraged. Mark Singler, for

instance, routinely wears 47 pieces of flair.

195

(Mark “Chochkies” Singler)

If possible, the Flair should have the abbreviations “P J L” in it, or perhaps should

reference Oak Park/River Forest High School or Fenwick Academy. If you really wanted,

you could have some flair regarding Trinity High School. Or the Cook County State’s

Attorney’s Office. If you have any questions at all about this, sit down with Mark and he

can show you his display.

For birthdays, we will usually do it up just right: the gala decorations include

ridiculous signs put up around the office commemorating how very charged with emotion

we all are at your birthday:

Also, don’t listen to whatever you might hear on the street about Peter. Just because

his firearms all match the “Honeybee Killer,” they’re pretty sure they got the real guy now.

So no need to wonder about Peter’s… angry outbursts. NOTHING to worry about.

So, when do you think you’re starting??????

Dan

**************** Maybe you’d need to know some of the people from our office, but I’m guessing

you’ll get the gist of it. Jim Pranger was (and is) a terrific lawyer—more specifically a talented trial

lawyer. Jim, as you might recall, was involved in the Kevin Hedley claim litigation but also a few other cases that we worked together on there. Jim helped me in advising Scott Weller what to do when he faced potential criminal prosecution if he disclosed that he had all those audio tapes of phone conversations. (He also advised me on how to

196

handle clients in those types of situations—something slightly sticky and where we had to be careful on how to advise Scott—after all, we weren’t criminal lawyers.)

I have learned a lot from Jim, both here and at my/our previous firm. One thing

that happened upon Jim’s arrival at Peter’s office was, he took on an appeal that I had filed up in Lake County from another unfortunate decision in the trial court—a dismissal of our case. By December of the same year, following all the briefing and oral argument up in the 2nd District Appellate Court in Elgin, Jim was able not just to get the trial court’s order reversed, but to have the opposite result altogether take place: not just to remove the judgment against our people, and not just to be able to put on our case at trial, but, in fact, to have judgment entered in our clients’ favor. (I mentioned this one earlier, but I want to give Jim credit where credit is due.)

As I explained to the clients in that case, in my experience, there is about a 2%

chance that that ever happens when you take an appeal. The likelihood is it is even less frequent than that. The other side tried to have the matter taken up to the Illinois Supreme Court, but the Supreme Court would not entertain the case. The result? Our clients, who were some 28 family members who had received distributions from their father/grandfather/uncle’s estate, and now had to fight to keep them, no longer had to pay our fees when they had little money to begin with, and in a sense, their nightmare was OVER. It was the best possible outcome. Jim’s a helluva lawyer.

On the Lighter Side, Vol. V…. Ken Theisen and I had another case (Marquardt) where I represented Barb

Marquardt, whose husband had died and his children from his first marriage brought an action against Barb for all sorts of wrongdoing. She was funny— kind of like Sharon Rudnick and her “let’s let those justices get a look at a real gold-digger!” comment—when Barb would leave messages with either my voicemail or my secretary that she had called, she would identify herself alternately as “the murderer” or “the evil stepmother” or the like—playing on her step-children’s nasty insinuations about her husband’s demise. She was terrific—great sense of humor. Well, one of the attorneys on the other side represented various family members, but also represented the decedent’s business. He was too much—a very high anxiety, very formalistic, over-serious lawyer named Henry Kralovec. He would respond to everything involving the Decedent’s company with extreme formality, which made for some hilarious back and forth. Ken left me a couple of messages, both involving this one (“Marquardt”) and the above one, the “Margaret Burd” case, and Ken’s gentle and quick-to-laugh nature are perfectly captured on these messages:

Marquardt corp accommodations.WMA

More KFT re upside down bucket.WMA

Gus Antonov Estate Not long ago I had a will contest which I had brought on behalf of five siblings as

heirs-at-law of one of their great uncles. In this particular case, the Estate of Gus Antonov, a Will had been signed about 10 days before Nick died. His wife had died about 7 months before and he had taken a fall in his back yard. It was another branch of the family members which had wormed their way into this guy’s life, making themselves

197

indispensable while emphasizing to him that no one else in the family was worthy of an inheritance from him.

After this guy ended up at a hospital and then a nursing home, the ringleader of

this group contacted an attorney she knew to slap together a will which would leave all of his money to them and none to my clients (or anyone else for that matter).

So she did so, but the whole thing looked and smelled fishy. First they didn’t tell

my clients that their uncle had died. My clients found out about it when a lawyer sent them a statutory notification that a will had been admitted to probate because they were heirs at law and entitled to know.

Then the Will itself was bizarre. It had one font for half of it (Times New Roman)

until you got to the signature page, which was in Arial or Courier or something. Also the last sentence of the paragraph at the bottom of page 3 in the document does not finish, but the next page (in the new font) does not end the sentence—it simply begins with a new paragraph. Furthermore, the gentleman had not initialed any of the other pages as if to indicate they were part of this will (a fairly common practice among estate planning attorneys). Rather, he only signed the last page and clearly had trouble doing that.

So we were taking the deposition of this one particular doctor, who was an

internal medicine doctor who had been assigned Mr. Antonov while at the hospital following his fall, then he followed him for a period of time at the nursing home shortly before he died, including the date the will was signed, November 1, 2006.

One of the key facts we were able to elicit from this doctor was, this patient had

been administered Ativan at 10:00 a.m. that day, about 2 hours before the Will was signed. As this doctor put it, according to the medical-legal ethics to which doctors are required to adhere, once this level (1 mg at 10:00 a.m., after a previous dose intravenously at 3:30 a.m.) of Ativan is administered, the patient is to be advised that he or she should not sign any legal documents for the next 24 hours (until the medication has worn off). Well, this Will was signed within two hours of the most recent administration of Ativan.

This doc, who actually treated Gus Antonov, was going to be a great witness for

us. The only problem was, during his deposition he could not keep his eyes off of Dianne Sofiak, our court reporter. A couple times I almost had to wave to him, “Hey Doc, I’m over here!! I’m asking you questions here!!” Naturally, I didn’t want to ask the court reporter to read the questions back to him because I thought that would make a bad situation worse! It reminded me a little of the episode in Seinfeld where the head of programming for NBC is smitten with Elaine, but she just isn’t that into him. But he can’t get her out of his head.

198

(Not our treating physician—from Seinfeld)

That’s kind of how our treater was with Dianne at his own dep. Dianne

mentioned to me the next week that the doc had actually asked her out for a drink when they were going up the parking lot elevator! Dianne’s married, she had to say no (and did)! Dianne mentioned the doc had a wedding ring too!

Anyway, the point is, often it’s not the Clarence Darrow-like legal artistry that

makes this business worthwhile—it’s the funny, unexpected twists. But while that was hilarious, the case itself also was most intriguing. It seemed as

if every deposition made the case better for us. The defense was, basically, that our people had fallen out of favor with their uncle, and he was disenchanted with them, so he favored this one branch of the family instead.

Our people had never had any discord with the guy, they just didn’t see him that

often once they all grew up and started families of their own. But when there’s another branch of the family systematically working on him—especially when he’s just lost his wife and is vulnerable—endearing themselves to him, and as he gets more and more confused, and because his body, essentially, has started the process of dying, and then they present him with a document for his signature, and he, as you might expect, has begun to rely on those people who are immediately before him… then it’s pretty likely he’s going to sign that document, no matter what it says.

In this case, the lawyer who did the work was obtained by the “ringleader” I

referred to before. She didn’t have a prior history with him but nonetheless was obtained by the ringleader. And she acted as though she really reported to the ringleader and this branch of the family rather than the Decedent himself, who was supposedly the client.

So when this guy had taken this fall and was quickly admitted to the hospital, and

it did not look good, the lawyer got a call from Ringleader, who told her she needed to get to the hospital to get the will done quickly under the circumstances.

You saw above the condition of that end-product. The lawyer insisted it was all

signed on the up and up, but when you have three or four pages in one font and the signature page in a different font, how do we really know what the actual will looked

199

like?—The fear being that, with the testator not initialing each page, there is no certainty that the will, with its different fonts, does not have new pages substituted for the original pages after it was signed.

So we get to a jury trial on a Monday morning after a year and a half of discovery

and then—and only then—does the other side want to talk settlement. Apparently it took seeing the faces of all those jurors in the back of the courtroom awaiting voir dire to make them decide not to chance a bad verdict. I had spent the entire weekend working 14 hours Saturday and Sunday (as usual in these cases) to be ready, and we finally got it done.11

On the Lighter Side, Vol. VI…. I don’t know if I can do this one justice. One time I was appointed Special

Administrator of an Estate where the reason the judge removed the family-member Co-Administrators who preceded me was because they could not agree on the simplest of things. Deep-felt bitterness. And the Judge had had it up to here with them. And I happened to walk in the courtroom at precisely the right (wrong?) time.

Literally, I had walked into Judge Susan M. Coleman’s courtroom at about 11:30

one day literally while looking for another attorney. The only people in the room were the two Co-Administrators, the Judge and her clerk.

When I poked my head in the door I hear the judge say, “YOU TWO ARE

REMOVED AS CO-ADMINISTRATORS AND I’M APPOINTING MR. MARREN AS SPECIAL ADMINISTRATOR!!” Those are the real-life equivalents of “Command Performances” and you don’t say no. Later there were many times where I kicked myself for not explaining to the judge that I could not possibly… But no. You can’t say no. In theory this one had the potential of paying out in fees for the work, but… let’s not talk about it.

Anyway, skip forward several years to last October, after we had sold the two two-

flats in the Estate. Because nobody could agree on how to dispose of the personal property in the flats, I had it all put into storage at a facility convenient to me, being on my way to work. So I scheduled a “round robin” bidding day, where everybody would take turns picking out those items that they wanted from among the stuff in storage, and where there were conflicting bids on an item, it went to the high-bidder.

It was a kind of cool October day—in fact later in the day it began to

rain/sleet/snow. Keeping in mind how much bitterness there is between the factions, mainly

between one daughter who lived locally here in Chicago, on the one hand, and basically all but one of her four brothers, on the other, neither side trusts the other, to the point where the daughter’s attorney had requested that I arrange for police protection before scheduling the date for this distribution of personal property. I encouraged everybody to think positive thoughts and just to get through this peaceably. We don’t need police.

200

So what happened was, the daughter had her attorney go for her, while two of the brothers showed up. It became a fiasco because nobody brought money with them, so even if they wanted to bid on an item that both sides wanted, nobody was equipped to pay for it, and the judge had given me explicit instructions to accept only cash—not promises of later payment or anything.

The point was, this was all going to take place behind the storage unit, in the alley

at the rear of the storage facility (the space opened up into the alley). There was actually lots of space back there because there was nothing on the other side of the alley opposite the storage facility. So I have the door to the storage unit raised and my little Jeep Compass is parked maybe 50 feet down the alley because I knew that Jeffrey and Marcus (the brothers) had planned to show up with a 26-foot long U-Haul truck, and I was trying to leave room for them to park it near the locker in the alley.

When I arrived, however, I noticed there was a Subaru Outback parked

immediately behind the storage unit, so I walked around to the office of the place and asked whether they had any idea of the owner of the car so I could get it moved to make room for the truck. Nope. So we were going to have to work around it.

I walk back to the alley. Not long after I get back there I hear a truck making its

way towards the alley. I walk over to the edge of the alley and sure enough it’s Jeffrey. Then right before my very eyes I watch Jeffrey begin his turn into the alley and he has clearly cut it too short (didn’t leave enough room for the back of the truck to clear a car parked on the street). Jeffrey hits this parked car with the back half of the 26-foot truck and barks out a loud expletive. Ugh!! When this was all said and done, Jeffrey told me that his brother Marcus had driven the truck from the south side all the way here (on the north side), but stopped in the office of the storage facility to use their restroom. Well, Jeffrey didn’t want to wait for him, so he jumped in the driver’s seat and the sum total of driving which Jeffrey did with this 26 foot truck was what I was seeing now. Oh, and it also turned out that he was driving on a suspended license. And it was his girlfriend who had technically rented the truck for him. And by the way Jeffrey was not an authorized driver.

So not having done enough damage to this parked car, Jeffrey, trying to extricate

the U-Haul which is crunched into this parked car, begins to turn the wheel in the wrong direction after putting the truck into reverse, and I yell out to him that he needs to stop because he’s actually turning further into the parked car!! More crunching sound and another loud expletive from Jeffrey.

I couldn’t tell if Jeffrey could hear us yelling but he can sense that he is not

clearing this parked car, so he brakes and regroups. He turns the wheel in the correct direction, eases onto the gas and pulls away from this car he has crunched. Have you ever heard that sound? Where two cars are up against each other and one pulls away? It’s kind of the same sound as crunching the parked car in the first place.

201

So Jeffrey gets this U-Haul extracted from the parked car, which now has its side-view mirror in shreds and is leaking something red, and now carefully pulls the U-Haul past the parked car enough to clear it, and turns into the alley.

Almost as if in slow motion, I now see Jeffrey pull into the alley, and with this

Subaru Outback immediately behind the storage unit, Jeffrey now has to clear it and then to park in front of it. By this time, Marcus is back there too and we both let out a loud “Ahhhhh!!!!”—Jeffrey wasn’t giving himself enough room to clear this other car. So as I’m watching I see a perfect repeat of what had just happened out on the street, as Jeffrey now crunches this other parked car, ripping the front fender loose on it with the other side of the U-Haul. Cue the crunching sound and another expletive from our truck driver.

So Jeffrey climbs down out of the truck and goes back to assess the damage on

these two cars. None of the residents in the immediate area have come out yet. My instincts now make me go right to my car, which is now maybe 15 feet beyond this Deathcab, and move my car another 50 feet further down the alley. When I walked back, Jeffrey comes over to me and Marcus and looks up at us. In conspiratorial tones, Jeffrey: “Okay, here’s how I’m gonna handle it. If nobody comes out, this never happened and I know nothing about it….”

I say, “uh, no way, Jeffrey. The people in the office already know that I was

asking if they knew who owned that car right behind the storage unit, so they’re going to know immediately that we [the only people out here] had something to do with it.” Marcus chimes in, “Jeffrey, no way, man.” Jeffrey backs down.

Sure enough, a young woman comes out from a nearby apartment and inspects

what happened to the car behind the storage unit. She then goes back to her apartment and out comes her badass boyfriend-owner of the car, and he is not happy. I gotta give Jeffrey credit. He talks the guy off the ledge (and by that I mean talks him out of pushing Jeffrey off the ledge), explaining it was an accident and it’ll get taken care of. It took some talking to get this guy, who was steamed about all this, to cool off enough to call the police and probably his insurance company.

So we go about the business of beginning to set up for a distribution of the items

in the storage facility, deciding that we would at least get out all the items that are indisputably going to Jeffrey or those others whose things Jeffrey is authorized to remove. So we begin loading this truck, which, by the way, is not easy work. The movers who had, 15 months earlier, moved all this stuff from the apartment building into this storage unit had placed an incredibly heavy piano at the opening of the unit which is only 10 feet wide, so we had to move that out of the way before doing anything else. And as things are removed and deposited onto the truck I’m checking them off my list. So I’ve got a lot going on.

But eventually, the police show up, as does the owner of the first car. Neither car

owner knows until just this minute that Jeffrey, our little one-man Monster Truck Rally, had hit both their cars. The other victim, as it happens, is more meek and mild. He’s a

202

mailman who has parked here because the post office is a half-block down and somebody tipped him off while he was delivering the mail that his car had been hit. The other guy, the badass, had his fender nearly ripped off the front of his car, but this poor mailman actually cannot even start his car now. Whatever Jeffrey had hit caused the leak I believe of transmission fluid, so this guy needed a tow.

I thought for sure Jeffrey would get arrested. I’m no criminal lawyer but I would

think driving on a suspended license, without insurance, hitting two cars—damn—that’s a bowlful of trouble. But Jeffrey had not left the scene or anything which would have exponentially increased his likelihood of getting handcuffed. So it didn’t happen.

So I’m trying to focus on the distribution process over here, half-expecting that

one of the main guys helping move furniture onto a truck might get taken away, and I can hear Jeffrey and the badass talking to the police officer who had pulled up. She gets out of the car and is basically talking to Jeffrey and this other guy about submitting a false claim. Jeffrey has no insurance himself, but there’s insurance through U-Haul, and if it’s submitted that Jeffrey’s girlfriend was the driver, there would be coverage. Wow. Didn’t know you could do that. Didn’t know that Officer Friendly could unveil such a plan. Or that Jeffrey could keep a girlfriend for very long after that.

The lawyer for the daughter now gets on the phone to her client and begins to tell

her what’s happening. The daughter, seeing a chance to muddy up the reputation of her brother before Judge Coleman, tells her lawyer to get the officer’s badge number, the name of the other driver, etc., etc., etc. I get along with the lawyer, so I tell her, Karen, let’s not get involved in this. We got no dog in this fight. It’s completely incidental to what we’re here to do today. We need to be Sgt. Schultz on this one. She agrees. I remained amazed that this is how this would unfold.

So a surreal morning continued but not too long after ended because none of the

heirs who intended to fight over property had brought any money with which to bid on items. I had spelled all this out in my letter to everybody at least a week in advance. What a day. I had taken my day off, arranged for all this, and other than Jeffrey and Marcus being able to remove the undisputed things—and not even all of them—none of the disputes were resolved, and we would have to come back another day. And we had to move all the stuff we had taken out of the unit back in there quickly because it had begun snowing. And let’s not forget we still had to get that heavy piano back into the unit too. Fun fun fun.

Much later, after the Estate was wrapped up, I went out to lunch with Jeffrey and

Marcus, and we all had a good laugh over the madcap morning we all shared…. Even Jeffrey had to laugh about it.

Lawyers Helping Lawyers Not long ago I was referred to a lawyer—“Art”—who had gotten himself into

something of a pickle because he had assisted a client in her estate plan in a manner that included him as a potential beneficiary, which is nowadays (at least in Illinois) a per se

203

breach of ethics. But he had done so back in 1989 when the rules were a bit more relaxed about these things.

He was in practice at the time with his father, but his father had retired about

three years prior, so he essentially inherited all these clients from his dad. One of them was a woman whose husband had died some years prior, and she

wanted to do a new will. She still had a sister, so she was going to be the primary beneficiary. But this lady had come to like my client, and wanted him to include himself in her will as well, as a back-up to the sister.

There was at least one scenario whereby my guy would not inherit at all, and it

was not because of his prior death. It would have occurred in the event the sister outlived the lady and also if her home had been sold before her death.

This scenario almost occurred. The lady in fact did sell her home (one-half of

which was to go to her lawyer if she still owned it at death), so if her sister outlived her, sister would have inherited everything. But sis did not, so it was all slated to go to my guy.

Hence the problem. There were nothing but unknown heirs in the estate, and in

such cases, the Office of the State’s Attorney gets involved to represent the interests of the unknowns. With the involvement of the State’s Attorney, the problem of the contents of the will immediately presented itself. The State’s Attorney filed a Petition to Disqualify my client from receiving his inheritance on the basis of presumed undue influence.

After various attempts to resolve it without a hearing, we went to hearing. Since

there is a presumption of undue influence when a lawyer (under the law as it existed in 1989) writes himself into a will, we had the burden of proving there was no manipulation and that the Decedent signed the Will of her own free will.

Both back in 1989 and now, if your client insists on having her lawyer as a

beneficiary, that lawyer (now absolutely cannot) should not do it him- or herself; rather, the lawyer has always been urged to refer the client out to a separate attorney altogether so that the client can get independent advice and there isn’t the spectre of advantage-taking.

My client interestingly had a fairly legitimate (though viewed objectively perhaps

biased) explanation for why he had not referred this lady to another attorney. She had insisted that he do the work and furthermore, did not allow Art to go to another attorney to ask him or her to do the work. So if Art was to be believed, he was forbidden at the risk of violating the attorney-client privilege from telling anyone else about this. Furthermore, Art would explain to me, if it was his desire to shield all this from public view, he could easily have established a trust, conveyed this lady’s assets all into trust, and there would never have been a need to present the will for probate. But he hadn’t, because, as he explained, he had not intended to manipulate this lady.

204

So I put on the individuals (a husband and wife, who were law school friends of

my client) who were the subscribing witnesses to the will as witnesses at the trial. They testified that this lady, the “testator”—who signed the will, was perfectly comfortable when they and Art all showed up at her house in the fall of 1989 to execute the will. She had paged through the document in front of them, had no major questions about it, and signed it. They, themselves, had no knowledge of the contents of the will but distinctly remembered the event of signing. They remembered going over to her house that evening, the entire thing took about an hour, and it was completely pleasant and uncontroversial. They testified it was like going over to your great Aunt’s house—well kept and everything in its proper place.

I also put on Art, my client, as a witness. Art being the executor, there was no

Dead Man’s Act issue (the executor would be the one to raise it), and he testified freely as to what had occurred. He also testified as to having assisted the lady in selling her home in the mid-1990s. At that time, the scenario continued to exist that Art might not have inherited anything, because the one asset on which he was named as a beneficiary was being sold, which resulted in the elimination of that bequest to him. However, the sister, as mentioned, did not survive and so Art was at that point the only living beneficiary under the will. Art indeed was the attorney who opened an estate for this lady’s sister once she had died.

We had also taken the evidence deposition of a witness who had died prior to

trial: Mary Nuccio. Mary was an across-the-hall neighbor of our Decedent after she had moved into a condo following the sale of her Oak Lawn home. Mary had some interesting things to say, including testifying that, near the Decedent’s death she had told Mary that Art was preparing a new Will (which was news to Art). It was her recollection that this project was in the works in the last couple months of her conversations with the Decedent. But the one thing that Mary was most solid about was, though the Decedent did not trust many people, she did trust Art. In dealing with this issue of the will which was supposedly in the works, I asked her whether she ever heard the lady complain that Art was not moving quickly enough on doing the new will, and her testimony was, again, no, and the Decedent implicitly trusted Art—never had a bad word to say about him—him or his father before him.

With the Judge that heard this case we were on pins and needles. One criticism I

have about the particular judge that heard Art’s case—he may rule in your favor or he may not—but generally speaking, when he ruled in your favor he found his own grounds for doing so and would not necessarily go along with your theory. And he would frequently give opinions about the direction a case ought to follow when your own opposing counsel needed the help (but you most definitely did not want that help given).

Anyway he ruled in Art’s favor, expressly finding (after an excruciating 25 minute

preamble to his ruling—during which we had no idea which way he was going) that Art had not unduly influenced the lady to get her to sign the document. But in the next breath, he mentioned to me and my client that he was immediately reporting Art to the

205

ARDC (Attorney Registration and Disciplinary Commission) and let them sort out whether Art had committed any breaches of ethics.

Well I know what that feels like. Your spirits sag, you know you have to spend

hours upon hours trying to defend yourself, the only upside in view is the hope that you don’t get disciplined, or that you don’t and you hope it won’t take too long to put it to bed.

I felt good because we had obtained a ruling with an express finding that Art had

not exercised undue influence, and that we had shown this by clear and convincing evidence, but to Art the whole thing was not over and so he was disconsolate. I did learn later that the ARDC determined not to go forward with any complaint against Art. And I had advised Art early in the case that he could avoid the entire trouble by disclaiming any interest in this “inheritance.” But he was determined to stick it out—he thought this was what his client wanted.

This judge was a fixture on the 18th floor for many years, only retiring a couple

years ago. But the kind of frustration I’m talking about with him was also shown in another case where I had filed a Motion for Summary Judgment against some Claimants.

No such thing as an “open and shut” case In another case referred to me by Chuck Kogut, I represented the Executor, the

brother of the deceased, whose children had been named in the will by the lady who died. The people who filed a claim were a niece and nephew of the woman who died.

I was convinced we would be granted summary judgment. Why? (a) The niece and nephew had filed a claim for the proceeds of an invested

portfolio at UBS for which they had a helpful letter from the Decedent directing UBS to transfer the account to them. But….

(b) When we took the deposition testimony of the UBS account executive, he

had explained to the Decedent (following receiving that letter directing them to amend the account to name the two claimants as beneficiaries) that in order for her to do this properly, she would need to sign something which essentially closed the account and re-opened it in a new format so that the account would be gifted at death.

(c) She never took those steps, though this had been fully explained to her and

she was not “on her deathbed” so could have corrected it. (d) Not having done so, the letter indicating that this is how the account

should be rearranged, under well-settled precedent, legally meant nothing.12 I can see how this would be received as a harsh result, but it gives certainty to

probate law if the person, following it being fully explained to her, takes no steps to consummate the change in the beneficiary status on the account. Statements of intent

206

to do something which the person never follows through on are called, in probate law, “precatory statements”—i.e., non-binding statements of general intent. Having precatory statements interpreted in this way protects everybody involved, and it has the beneficial result of actually reducing litigation by having such a hard and fast rule. It protects the financial institution because there is no liability for declining to pay out to the “intended” beneficiaries (because the Decedent did not follow through), and it chills litigation because of how definitively such statements are interpreted as being of no effect.

But this judge denied our summary judgment motion. That did not mean that we

lost. It merely meant that he believed there was a way, somehow, the other side could prove its case. But he did not explain specifically how, and the other side had nothing else—just that letter sent to the account rep at UBS. He just stated that he thought there were “disputed issues of material fact” but he did not indicate what those valid disputes were. When we got our ruling, my opposing counsel told me privately that in another case the same morning he expected to have something awarded to him, and he did not get a favorable reception from the judge in that case, and in our case he expected the court to rule against him and it did not. Apparently, a la SpongeBob SquarePants, it was “OPPOSITE DAY” for him!

I think the judge thought he was doing the right thing by denying summary

judgment, thinking that the initial letter to UBS directing them to re-title her account’s beneficiary arrangement to reflect these two claimants somehow constituted a plausible basis for stating a valid claim. It was a plausible basis for a claim, but without any other proof, there was no way to win.

This is the kind of thing where you find yourself scratching your head—as I said a

long time ago, this business can be exasperating, most often because it comes down to persuading a person—rather than a robot—of the correctness of your position. Kind of like an umpire in baseball. You’re stuck with the human error element. That’s not to say I feel every time I get an adverse ruling I feel the court is flat wrong, but in cases where the other side agrees with me that they should have lost (kind of like in Fako) and they do not, it makes you wonder what the court could be thinking.

So what ended up happening? Probably as the court thought would happen, we

settled with these Claimants despite the law appearing to be 100% on our side.

207

The “Reprieve”—a stressed out lawyer’s best friend Okay, I just talked about the human error element existing on the other side of

the bench. Naturally, the human error element is not confined to that side of the bench. More than a few times have I found myself potentially at somebody’s mercy over something stupid I’ve done. And it’s not just saying “I love you” on a first date!! (Li’l Sinatra reference, there….)

Just as in any line of work, I’m sure, lawyers often have too many plates spinning

in the air at once, and occasionally that will put you in a tough spot. It’s easy to forget things when you’re busy or distracted—and it’s easy to do something dumb when you’re under the gun. When in a pinch, that’s when the strangest things will happen. You’ll forget something, or misplace something on your desk and wonder where it’s gone because you’re nervous trying to get out the door to court or to a deposition where you’re the lead lawyer (and later, naturally, you’ll see the document essentially on your desk in “plain sight”—only after you’ve calmed down). Or you’ll be thrown by something a witness says and you’re scrambling to find a piece of paper to use as a last-second exhibit, and though it was right here a minute ago, it looks like all the other papers and so you look like an idiot, not just to counsel but to the court or, worse, to a jury. And so you learn, in those situations: take a deep breath, beg the court’s forgiveness because you’ll need a moment, collect yourself and find the document.

Obviously, the very best way to avoid this is never to be unprepared but that’s

simply impossible. There are going to be occasions where you’re unexpectedly under the gun. And so things will happen that you couldn’t make happen in other situations if you tried. Picking up your pen, it will fly out of your hands and land 20 feet away. Or you’ll be throwing your jacket on in a big scramble to get out of the office and the jacket gets caught on your door or your chair or a nail in the wall (when flinging it over your shoulder) and it’ll rip or nearly so. Or you know you have no time at all—should have been out the door twenty minutes ago and everybody is going to be waiting for you—and you’re staff needs something. Aggh!! And so they may see a crack in the usual cool veneer. (Ha ha.)

It’s not precisely a “reprieve” story, but I remember at the end of the Bukowski

case, the very last thing that happened before the jury got the case was, our office had to re-copy originals of exhibits which were going to go to the jury. We had highlighted in yellow certain areas of documents to be able to draw witnesses’ attention to specific items on documents (I believe they were medical records with a ton of data on them), but the other side wanted us to remove those yellow highlights from what was going to the jury.

So after closing arguments I had gone back to my office and we re-copied the

originals of exhibits to give the jury un-highlighted copies. It was about two inches of documents which we had to re-copy.

The next morning I arrived at court prior to the jury arriving and it was a very

light moment. We merely had to show the court and counsel the job had been done,

208

then to remove the originals of exhibits, putting the copies in with the items going to the jury. For a few minutes while we waited for the jury to arrive for court, we all stood before the bench chit-chatting with counsels and the judge, and I had the corrected copies and the highlighted exhibits, the corrected ones sitting on top of the highlighted ones.

Everybody was satisfied we had corrected the problem. Then, when the jury

arrived, we stepped back to counsel tables, leaving the exhibits up in front of the court. The court called everybody to order, then directed the jurors to retire to the jury

room, and directed the bailiff to take the exhibits in to the jury. About ten or fifteen minutes later, I became frantic. I had left both sets of

exhibits including the highlighted ones on the bench! Opposing counsel had already left, but I told the court in a panic about having inadvertently left the “wrong” ones with the corrected ones, and now both had been given to the jury! I was almost out of my mind that I had just done something utterly ridiculous and it was going to result in a mistrial and I will have wasted everybody’s last two weeks and all the time it took to prepare the case for trial—all because I was distracted and not thinking.

Judge Cusack was most sympathetic but the one absolute truth about a jury

which has retired is, you do not violate the sanctity of the jury room once that door has closed. I was imploring the court to have the bailiff go in there and remove the “tainted” set. He could not and of course I understood this. But I was inconsolable. The judge asked an attorney who had walked in the room at that point whether he thought this was grounds for a mistrial. I remember him telling me that he thought it was not. But there was no making me feel better.

Here’s the thing. Or, I should say, the lesson. I immediately called my opposing

counsel—Melvin Katz—and explained what had happened. Mel was most kind. He told me he thought it was not something he would make a big deal about, though of course as yet we did not know how the jury would go with its verdict. Ultimately, Mel and his co-counsel did take an appeal from the verdict against Tom Snopek. But, being true gentlemen, they did not, in the end, make a big deal about the inadvertent inclusion of the highlighted copies. How refreshing is that? These guys knew it was a mistake and they could tell how devastated I was and they chose not to seize upon it. I’m not sure whether it was grounds for a mistrial, but, thankfully, due to the class of opposing counsel knowing it was human error and was never intended to occur, I got a reprieve of sorts.

That is just one of the kinds of situations that have occurred for me in this

business where I’ve learned how important it is to treat opposing counsel the way you would like to be treated.

This business is really a pretty forgiving one. It does take a pretty fair amount of

repeated screw-ups before you (or your client) actually has the hammer drop. And a lot of that is due to how you’ve treated others. But even the rules are forgiving. If you are

209

making a good-faith effort in this business, it’s pretty rare that you will be burned, at least by technical rules.

There are some hard and fast rules. But even in those situations, generally

speaking, nobody wants to see somebody get nailed on technicalities. I recall one time Judge Cusack asked me what I thought about a wholly unrelated

case he had to decide. Somebody had filed something at the very last minute which, to read it and try to understand it, did not constitute a will contest. But the Judge did not want to burn the lawyer by ruling that it was not a will contest because whatever it was that he did file was filed on time if it were a will contest—at the eleventh hour for sure but on time. Opposing counsel was taking the position that it was not a will contest. It was not titled a will contest, it did not smell like a will contest. But after the fact, counsel was asking the court to interpret it as one. And the Judge, like most good judges, did not want to enter an order which burned the guy. FYI, if you do not file a will contest within the 6-month period following admission of the will to probate (in Illinois), there is no extending it. If you miss the deadline, there is no reprieve under the rules. I do not know how he decided the case, but my two cents to Judge Cusack was to say, okay, well, strike it but give the guy leave to amend it. I think the Judge did that. (It is not at all unusual when somebody files something that doesn’t quite state a cause of action that the court grants the motion to dismiss, but usually gives a party leave to amend the pleading one time, often twice before it being a dismissal “with prejudice.”)

I would contrast this “laxity” in the rules of procedure in the law to, for instance,

the do or die nature of surgery for doctors, or paramedics handling an emergency. I guess that is also true for lawyers at trial (excepting the Bukowski situation referenced above), at least in terms the risk of malpractice exposure. But overall, it is a forgiving field, and in that way, we are in a good profession.

So when I complain about a judge ruling against me when the law appears 100%

on our side, I need to remember that all you can do is your best and maybe, in the “bigger picture” for whatever reason, somebody in that situation is getting a reprieve they desperately need and everything in the cosmos is going to be all right in the end.

It’s an interesting line of work, wouldn’t you say? It could have been very different. I remember before starting at Groble &

Groble—maybe two months before—I had had an interview at Playboy Enterprises—literally at the Playboy building in Chicago, for a job which was pretty much a long shot. I had little to no background in the precise area involved, which was intellectual property and copyright with some commercial real estate work. But the interview had been lined up for me by a nice fella who was the recruiter/office manager at a big downtown firm after I had been turned down in an interview with that firm. This guy felt bad that it hadn’t worked out at his firm so he contacted this lady at Playboy who was looking for somebody right out of law school. What a different career I would’ve had if it had worked out! There was so little chance of that happening that in the end all I really wanted out of them was a rejection letter on their letterhead.

210

I remember that, during the interview, this lady pretty much immediately sized me up and though she was minimally polite, she also knew this wasn’t going to work. So did I, actually. Here I was, a Catholic kid with nothing but Catholic schools on my resume interviewing to be a lawyer working for Playboy Enterprises. Really, the job was to work closely with Christie Hefner on all sorts of intellectual property and real estate matters, so the woman asked me things like, did I think I could do that? Would I be able to transition into that kind of career which of course would also require travel, a tremendous time commitment, etc.?

Well, I—most Catholically—interpreted her questions like she was asking me

about the moral elephant in the room—could I work for a company that so obviously exploits women as its bread and butter—when she was really wondering whether I could pick up on highly challenging licensing, trademark and real estate issues with enough speed to justify them expending the high salary they had in mind? I remember I actually asked her to clarify whether she was wondering about the “moral” aspect—like, could I make the moral adjustment?

Imagine the diametrically opposite perspectives she and I held coming into this

interview—as soon as I used the word “moral” in discussing “the work”—she must’ve thought, “Okay, how do I get this guy out of my office, like, NOW?”

So I didn’t get the job, she probably never allowed another referral from the

referrer at the big firm to enter her realm again, and I didn’t even—though I called more than once for it—get a rejection letter on their letterhead. All I really wanted!!!

Thinking back, how incredibly naïve I was then. But that’s why George and Don

Groble have a prominent place in this reverie. I should really write to that lady now, telling her how that interview gave me a vast education on how the Lord works in strange ways… she’d probably remember me!

Little did she know I actually had potential for success coming into that interview

that she didn’t come close to understanding, not that I evinced much of it on that occasion! Sense of humor, a healthy sense of my own flaws and my ability to fail—which has served me well—fearing failure, I’ve become a better lawyer. The belief that, unless I took appropriate measures, I would reveal my glaring flaws to the world! That sense has served me well. I’ve probably avoided a lot of disaster simply out of a fear of “them” learning my real worth and skill level!

It reminds me of a great Far Side cartoon which would definitely apply to me, but for this disaster-avoidance sensor built into my make-up:

211

Gettin’ Preachy… I am certainly not the most highly skilled lawyer around (remember I do consider

myself “Best-In-Class”—interpret that as you wish), but when I have had success it has been when I have followed some simple advice: Make it thoughtful. That means, make it look like you’ve put some thought into it. And the best way to make it look that way is actually to have put thought into it.

I have found you must be true to yourself too. Otherwise you may end up making

yourself miserable. When I was in a large firm, I recall somebody telling me, when I got myself in trouble once by allowing my smartass nature to come out in dealing with Fred Schmedley, being told by the head of litigation at this firm that I needed to make the partners like me. I needed to get on their good side. This was after I had told Schmedley, who had come into my office at 5:30 one night to ask about an assignment that he had been waiting for from me, when I was getting ready for a couple depositions the next day, was incredibly busy—truly finding very little time to get all my work done—that he and his little pet project needed to “Get in line, Man….” That was the first time I ever heard anybody use the expression “We have issues” in describing not getting along. So he went and told on me to the head of litigation. As I recall, he had given me a really stupid task—it was to do a Memo on how a particular case we were supposedly working on together was going—and I was offering simply to tell him about it—while I had all these other real projects that desperately needed my attention. I had no time to paper the file for junior partners trying to exert their authority over me.

Being “true to myself,” I never made partner at that firm, though I never made it

a priority. But I think I would’ve hated being a partner there. In talking with my sister

212

Sue recently, she echoed that same theme about “office” or “department” politics. Sue is a college professor. I think that “smartass” element is what prevents people like us from “kissing up” to people, who, by definition of that phrase, don’t deserve it. For instance, one of the partners at the big firm once suggested that for the annual Holiday party, the Associates should come up with and act out skits about the partners. And why? Simply because they were partners! Blegh! Blegh!! I could see doing a skit that made fun of particular individuals, but not to “get on their good side,” and certainly not just because somebody arbitrarily decided to make them partners.

I’ve always remembered a lesson that Don Groble mentioned that he learned

from Leonard Ring. And that is, if you have a case where you feel strongly that a position you would like to take appears not to be supported by case law or perhaps even is not allowed or criticized or whatever, but it seems right to you or that it ought to be, then you may be right to follow your instinct.

In the situation where I was trying to help Sharon Rudnick and her predicament

with the surety bond company that was looking to get all its attorneys fees from her personally, and then also attempting to collect the fees required to collect its fees, that in my mind was one of those situations. The case law and certainly the traditional way such matters were adjudicated was not in Sharon’s favor. But I had a strong feeling that if we had kept going with it, we would win on our “adhesion contract” theory. But it wasn’t practical to do it—if I ended up being wrong, Sharon would get socked with all those fees, now worlds more than before, all due to my “going with my instincts.” But that is one such situation where I thought the existing law could be adjudicated to be wrong or to yield an unfair result, so had Sharon not been facing this potential double indemnity, it might have been interesting to pursue.

What Leonard Ring impressed on Don is what I think of when considering the

obligations on a lawyer under Supreme Court Rule 137, where it first tells you any pleading must be signed by the lawyer or the party (or both), and then tells you what the signature means:

The signature of an attorney or party constitutes a certificate by him that he

has read the pleading, motion or other document; that to the best of his knowledge,

information, and belief formed after reasonable inquiry it is well grounded in fact and

is warranted by existing law or a good-faith argument for the extension,

modification, or reversal of existing law, and that it is not interposed for any

improper purpose, such as to harass or to cause unnecessary delay or needless

increase in the cost of litigation. I don’t want to get too preachy. But I have always tried to remember kernels of

wisdom like that.

213

Why does he always need to make them laugh? (Warning: The Practice of Law Can Cause Stiffness and Swelling of the Ego)

Remember me starting this off by talking about being similar to Steve Goodman, who could have been a sensational blues man but his sense of humor kept getting in the way? Well, to give you a couple of for instances why I’m merely best-in-class and will never have an honorary street sign downtown:

* At Peter Latz’s office a few years ago, several of us were sitting around

eating our lunches and, as has always been the case when I eat “in”—virtually every day—my music was playing on my iPod in the kitchen, and among the 4000+ songs on it is the song, “Put Your Hand In the Hand” (of the Man from Galilee)—a song from the early ‘70s which I happen to like. Well, Christine Karr was one of Peter’s lawyers at the time, and she made a comment about hating that song. Well, that’s throwing me a lob that I had to hit. So not only did I start singing along with the song, but I stood up on my chair and started boogying to it, singing along with it loudly while everybody else was trying to have their little lunchtime conversations. Can’t seem to help myself. Got a laugh out of Christine—all I was going for.

* Also at Peter’s office, until recently when she left, Hope Geldes—a law

school classmate of mine—did a real estate practice, and so she was always going off to closings, etc. But she was (is—she’s not dead!!—she’s just not here) a bit of a force of nature—huge personality, a great laugh. I actually did not know Hope in law school, but when I started here we hit it off right away. When everybody would get together in the kitchen of the office (we’re on the second floor of U.S. Bank in Oak Park in our own segregated office), it would routinely involve a lot of laughter and, may I say, merriment (waxing Dickensian!).

Anyway, one time Hope left lunch to go off to a closing downtown or somewhere.

So I took it upon myself to give her a desktop background on her computer—she had no existing one so I thought she needed one. So I Googled Bobby Sherman and found a big ‘ol picture of a young, smiling Bobby Sherman. Made it her desktop background and left her computer on so she would see it when she got back.

Not too much later, Hope’s closing is over and here she comes, waltzing in to the

office. My office was a few down from hers. In a loud voice, Hope calls out, “Why is

214

Davy Jones on my computer????” Oh man, I was almost in convulsions with her reaction—Hope showing her hilariously faulty cultural awareness of the ‘70s!!!!

* Back when I was at Chuhak, all of our phone calls went directly to us—not

through a switchboard. So we had to make up our own voicemail announcements. Well one time I got it in my head to have a different kind of announcement. The usual kind would be something like “Hello, you’ve reached the voicemail of Daniel F. Marren; I’m either out of the office or can’t come to the phone so if you’d leave your name, number and when you called, I’ll try to call you back as soon as I can.”

Well, it only lasted about 2 weeks (because my wife hated it), but I created a

voicemail announcement that essentially started, “Hello, it’s Dan Marren”—as if I’m actually answering the phone—and leaving time for the caller to start talking to me. Then a few seconds later (presumably when the caller begins to talk), the rest of the announcement kicks in, “… I’m not in the office so if you’d like to leave your….”

Well, I found out who has a sense of humor and who does not with that little

gimmick. Jim Carey, for one, left me a laughing message telling me I almost got him. Most of the clients laughed. Again—all I was going for….

* I remember one time in Chancery court I had a prepared “agreed” order

and I just needed the judge to sign it. This judge was Nancy Jo Arnold (who I believe is now on the appellate court). So there’s a bench trial underway when I walk in the courtroom. So I have to wait for a break in the trial to see if the Judge would sign my order.

One attorney has the expert witness for the other side on the stand—some

accountant-type of witness—and he’s trying to get the witness to admit that in one part of his report there was an error. But the guy won’t admit he made a mistake (though from the context clearly he had). So after the attorney tried to get this admission from him going at it five different ways unsuccessfully, Judge Arnold has this incredulous look on her face and says, “What, are you Fonzie??? I was wrrrrr….. wrrrr…. wrrrrong!! It’s not that hard!”

Nobody in the courtroom got it, or if they did, nobody was laughing along….

EXCEPT ME!! I got it, and I laughed out loud. There had been an episode of Happy Days where Fonzie is unable to admit he was wrong about something, so he literally stammers when trying to admit he was wrrrrrrrrrong!

215

Eventually, they take a break and I get to approach the Judge’s clerk to hand up

my order. But the judge had already left the bench, so I didn’t get to tell her that I understood the Fonzie reference.

About a year later, I walked into an elevator in the Daley Center Courthouse and

there was Judge Arnold. On the ride up, I reminded her of that day and told her, finally, that I indeed “got it!” She laughed.

* A lot of it is purely impromptu and situational. One time while I was still

at Chuhak, a bunch of us were going to go out to eat lunch—maybe five of us: me, Mark Broaddus, my secretary Jeri, another secretary Mary Alice Ziola and Raquel Alavazo (naturally, I had my bag lunch, but we were going to eat out). So we all step into a pretty full elevator and the door closes. We start down, but the elevator stops at one of the floors below ours and when the door opens, there’s a gorgeous young woman standing there waiting to get on. She’s going to wave the elevator on, and, again unable to suppress my instincts, I tell her, “No—we have room—you can get on. Mark, get off!” Everybody erupts (except Mark!). She doesn’t get on because Broaddus wouldn’t get off. Mark went on to become an equity partner at that office, while I … am “living longer” in a new office.

* One story my long-time barber, Lisa Weibler, likes to tell people at her

shop—if she hadn’t remembered this for me, I probably would have forgotten about it. I had mentioned to her, when she was, yet again, bitching about all the tightened security around the downtown after 9/11, that getting into downtown buildings may be a pain right now but just recently I found a way to make it fun.

For a short period after 9/11 even lawyers entering courthouses were required to

have their briefcases hand-inspected by sheriffs’ deputies. So I got an idea. One day I brought with me all these squeeze toys that my kids use in the bathtub—rubber duckies, etc. Also my friend Jeanne Kerkstra from our office had given me two of these toys she had gotten from a client, one a big-mouth lawyer, angry face and holding a briefcase. And when you squeezed his hand he barked out three things:

216

“MY CLIENT IS INNOCENT!!” and “PAY UP, YOU DEADBEAT!!!” and “I’LL SEE YOU…. IN COURT!!!” Jeanne also had a doctor toy, which said things like, “Bend over and relax—this won’t hurt a bit!!” and “Whoops!! I hope you have INSURANCE!!” and Something else. I forget. (Having a Rick Perry moment!) And I also had this “Mr. Wonderful” squeeze toy too. This little squeeze-toy

spoke in a James Tayloresque “Sensitive Man of the ‘70s” voice, saying things like, “Honey, you take the remote. As long as I’m with you, I don’t care what we

watch. Better yet, let’s turn off the TV tonight and just cuddle...” and “Awww! Can’t your mother stay another week?” and “Actually, I’m not sure which way to go. I’ll just pull over… and ask directions.” I load all these noisemaking toys into my briefcase so that, when the sheriff’s

deputies open it up, they all start making noise or pop out, or there’s at least just this ridiculous visual—anything to make these overworked deputies crack up a little.

So what happens? Nothing! They open it up, there are all these squeeze toys in

there with my work stuff and they don’t bat an eye—much less laugh. They just close it back up and put it through. That actually was almost funnier, looking back on it.

Speaking of Jeanne Kerkstra, one of the funniest voice mails I ever got was from

her. One day she inter-office called me to see if I was free for lunch, and it went to voicemail. So she began leaving her message by squeezing this same doctor squeeze toy into the phone. And after the final of the three comments, she was going to say, “okay Dan, if you’re free for lunch, gimme a buzz.” But the squeeze-toy doctor was stuck on repeat—repeating all three sayings over and over and Jeanne couldn’t shut the thing up—so to see if I was free, she had to talk over this yapping doctor with the ridiculous voice. In turn, she naturally started giggling while leaving the message—it was sooo Jeanne—she’s very funny to begin with, and it became like a ventriloquist getting

217

shouted down by her wooden side-kick! So her intended comedy took a left-turn on her during the voicemail message. Real life can be hilarious.

* River Toss. Another reason I will never fit in as an elitist, highly-paid

lawyer, but merely “best-in-class” (if that). One time, in response to a challenge, I claimed to the people in the office that I could throw a league baseball across the Chicago River. My older sons had been involved in little league for a bunch of years by then, and so lunchtime and coffee break talk often went to baseball feats. So I couldn’t resist.

Well, I had been saying it for awhile, so I was starting to get comments like I’m all

talk. One day I’m walking with Molly Ward to court and happened to run into my neighbor, Bill O’Reilly, who is a Chicago cop. He was parking in front of City Hall and about to go in when I reminded Bill that he was going to be my catcher for that River throw. He says I’m all talk. So I tell him let’s do it tomorrow, maybe around 9:30 to let the rush hour crowd die down. Okay.

The next morning, July 8, 2004 (as a matter of fact), I had remembered to bring

my mitt downtown (for Bill), a canister of tennis balls (in case a league ball posed too much of a threat to bystanders), and about 4 or 5 league balls (I didn’t know how many tries it would take me). At about 9:15 I go down there with the usual suspects, Mary Alice, Molly, and Jeri, and we meet Bill O’Reilly. Well, where I was going to throw the ball was way too crowded, so we walk south a block so we were now a couple blocks south of the office on the Chicago River. It’s a beautiful sunny morning, no wind. So those guys stay on the east side of the river, right next to the Venice Café restaurant, and I make my way across the river at Adams, so now I’m on the opposite side, right near the entrance to Union Station (train station). The river is slightly more narrow there, but it’s almost as wide—still a challenge. I take a couple of deep breaths, stretch my arm, make sure to wait till people have passed by, and let fly one of the league balls. I look up at the ball sailing over the river, then look down and see the ladies all running for cover. I thought that was pretty funny. The ball sails over all of them and hits the back wall of the Venice Café area where there’s this waterfall. Yes!! One funny thing—although there were people near me on the west side of the river, not a single solitary soul made a peep. Nobody asked what I was doing, why, what this was all about—nuthin. I thought that was a little strange, but oh well. Probably good there was no security there. But that was part of the idea of having Officer Bill O’Reilly there—he could talk to whoever might try to interject themselves.

218

More than any brief I ever wrote, more than any trial or appeal I ever won, that

River Toss made me a minor celebrity for a while at that office. Not really the kind of thing that’ll get you touted for partnership. Who cares? It was worth it, and people have remembered it (and still mention it).

* Much more recently, at Peter’s office again, somebody had made the mistake of showing me how to use the intercom system on our phones. And where my office was, I was not in the office proper. (See the Primer for Pranger above—we acquired space across the hall a couple years ago.) I and another guy and one secretary were outside the main office, across the hall, in offices to which we expanded when we added several additional lawyers. One afternoon, I (as always) have my music on my iPod docking station, and on comes the song, “I Will Always Love You” by Whitney Houston (don’t judge me!).

There’s a moment in the middle of that song where there’s a pause before

Whitney peels into the refrain, “And IIIIIIIIIII….. Will always…. Love Youuuuuuuuu!!!!” Well, the good sense part of me was actually at work (contrary to popular belief),

enough to check two things. One, I made sure there were no clients in the office (we had about 7 full-time attorneys at the time), and also, I waited until nobody was using the phone lines (which is easily done—by simply looking at the available phone lines—and nobody was on)…. Then I turned on the intercom and blasted the refrain!!!

Other than Peter and Mark Singler, who were having some kind of semi-serious

discussion in the conference room, everybody else laughed when they heard it on speakerphone in their offices. As I’m over there in Manchuria, or, as I often call it, the “Cicero Annex,” I actually didn’t immediately know if anybody laughed or not. But I did find out later that people had.

********** So you might ask, “Dude …. How do you … keep a job, again … precisely?” Well,

it comes down to, I do know how to do my job. Movin’ the product. And I sometimes will find out that I have mildly shocked people who are used to my joking personality when they see me in court or read demand letters I’ve written or whatever.

I mentioned earlier a nice conversation I had with Jim Carey about where the

years have gone and what, in the end, is important. Well, a few months ago I got a heartwarming email from my old secretary at Chuhak & Tecson, Jeri Rodriguez. To me, this is what it’s all about—it’s not about “making partner” or even necessarily making boat-loads of money:

219

From: Jeri L. Rodriguez <*******@*****.com> To: Dan Marren <*******@*****.com> Sent: Wednesday, January 15, 2014 8:54 AM Subject: The Impression You Leave I met a woman in Dollar Tree over the weekend who recognized me from the train. We got to talking and when it came up where I worked her response was “weren’t you so disappointed when Dan Marren left.” When I told her that you were the attorney I was assigned to she was like “you must have been especially disappointed.” Before you ask, I don’t remember the name of the attorney she worked with but it was a very small firm in the city and she said she talked to you often and she loved your easy going fun attitude.

I was touched to receive that. (Still trying to figure out who this woman was and what firm she was from….)

I enjoyed a lot of my time at Chuhak. I remember coming back from court one

time and there was an email that had been sent around to “all” by the guys in the mailroom. It simply asked whoever had taken the tape gun to return it to the mailroom.

Damn—another lob thrown to me. I replied to “All”:

“YOU’RE GONNA HAVE TO COME GET IT OUT OF MY COLD DEAD HANDS!!” (even though I didn’t have it).

If I didn’t enjoy what I do it would become real work. And so, seeing the funny

parts of everyday life has to enter into it for me. Hence having “Lighter Side” interludes in this. It would not be historically accurate without it.

Just today, at the end of writing this reverie, I had a hilarious situation in court.

So, you see—it never stops…. I was in court on a Formal Proof of Will hearing where Ken Theisen and I are co-

counsel for the Executor of the Estate. And we are opposed by Mark Singler, with whom I used to work at Peter’s office, till he left about 2 years ago.

So we met with the witnesses at Ken's office before the hearing, prepping them

for their testimony. They're a little nervous. Seeing Mark Singler there and all-serious, they're even more nervous.

So the Judge is late coming out. It's supposed to start at 2:00 but it's now 2:08,

and I tell Ken, I'm getting a drink of water, don't let them start without me! So I get my drink, and I'm about to re-enter the courtroom, and I decided to lighten the mood.

As I open the door (after first making sure the judge wasn't in yet), everybody's

silent, so I call out, "ALL RISE!" and everybody starts to stand up and I said, "Nah—Just me!! Kidding!!" Everybody cracks up, including Mark, including these nervous witnesses, it was perfect!

220

So everybody's more relaxed, the proceedings come off just fine…. I already answered the question of why there’s gotta be so much comedy. That is,

this business occasionally lends itself to feelings of self-importance and pompousness. I think most non-lawyers are intimidated by this environment, or when and how it intersects with their lives. Going to court—even traffic court—can be very intimidating. You get there and there are hundreds of people, sheriff’s deputies all over, cops, and all those suited-up lawyers, and the cops and the lawyers get preferential treatment usually—meaning, they get heard first, etc. At least here in Cook County. So you can be waiting in the courtroom and you might feel your hands start to sweat, and a lump in your throat, and when your case is finally called, if you don’t have a lawyer you are totally out of your element and it’s very intimidating. Even with a lawyer sometimes you might feel overlooked or insignificant—especially if that lawyer has other clients he’s assisting all at once.

I think the comic instincts come up because I have this desire to put people at

ease in this sometimes over-serious, occasionally cutthroat and frequently snobby sphere in which we operate. People occasionally tell me, after something funny occurs, that I’m in the wrong profession. I’m not. I could not make people laugh if they were expecting me to. If I tried stand-up, I don’t think I could pull it off. But because people almost always, in this biz, are not expecting it, anybody has the potential to be funny.

Keeping it light is how it all started for me. My law school classmate Linda Pacha

(who then was Linda Mahalko) reminded me recently of standing in line with her when our law school class was getting our law degrees graduating from Loyola University Chicago Class of 1988, and I whispered to her, “You know, if Perry Mason were in our class, he’d be standing right here!!”

Looking back at law school shots of us, it’s hard to believe it’s been 25 years. It

went in the blink of an eye. This is from the Ms page of our First Year Law School Picture book:

221

And now ….

Thanks for following along. Here’s hoping Smashmouth Probate gets a Volume

Two with even more comedy and cases with unexpected twists and turns (where I don’t end up disbarred….)

dfm

© Daniel F. Marren, 2014

1

--the Halas case, 1987.

222

2

3

4 This has two such exchanges—kind of have to read from the bottom:

5 Here was Pauly’s simple, almost entirely-adopted-by-the-Court, proposed

judgment order:

6 Here’s a last attempt to avoid having to take the case “up” (on appeal):

7 That case was published as In re the Estate of Margaret Burd, 354 Ill. App.3d

434, 820 N.E.2d 613 (2nd Dist. 2004).

8

9 Our approach, in demanding money for our clients to settle, was as follows:

223

10

Given the egregious liberties this poor lady’s children were taking in regard to her

assets while leaving her physically afraid of her son, the sarcasm in my view was well-deserved. But it resulted in the GAL calling me and leaving a message on my voice mail asking me to withdraw the complaint because she found it “odious.” I saved the voice mail because it made me laugh. After calling the allegations in the complaint odious, she stated “you have attacked me in a professional manner. And I must defend myself.” I didn’t know if she was complimenting the manner in which I “attacked” her or not!

11 Here was going to be my opening statement to the jury:

Very often in making an opening or a closing, I only go with bullet points, as,

similar to questioning a witness, depending on how it feels while you’re delivering it, you can vary from the text. But I thought I would write this one out, I think because the case was so much fun to talk about (and it kinda wrote itself anyway)….

12

The briefs: