Editor’s Note

When I started this job a couple of years ago, I made a point of meeting with managing partners to get some understanding of what was going on in the Chicago legal community. To my surprise, in the first three or four conversations, they each raised the issue of diversity in their firms. To paraphrase their comments into one: ”We keep trying, but we just can’t figure it out.”

The numbers from Chicago Lawyer’s eighth annual diversity survey indicate that the job of increasing diversity remains a tough one. Almost 45 percent of associates are women, but of all law-firm partners, 20.1 percent are women, up from 19.2 percent a year ago. Minorities comprise 15.5 percent of associates now (16.3 percent in 2007), and 5 percent of partners, the same as last year. Diversity is not the only important issue that law firms are struggling with, but it brings in so many social, racial, and community issues that, in these two years, we have tried to keep returning to this conversation.

Our cover story this month, written by assistant editor Olivia Clarke, focuses on the pipeline, the phrase for moving minorities into the profession, from college to law school to the profession. But the pipeline doesn’t begin at college, it begins at high school and even in elementary school. The thrust of these programs dealing with young men and women is to give them a sense of the possibilities.

One of the several programs that Olivia discusses is the CBA’s First Annual Donald Hubert Scholars Mock Trial Competition for African-American male high school students (featured on the cover). One of the originators of the event was Lindsey Dates, an associate at Jones Day, who co-chaired the program along with Victor Henderson, a Holland & Knight partner and president of the CBA.

Here’s what Dates wrote to Henderson after the Hubert competition: ”There are so many instances that I wish we could have videotaped for you — As the students were heading out to their various locations, they were being stopped all along the way by people from all backgrounds, praising them for how good they looked and saying what a glorious sight it was to see so many young black men heading to do great things. Scott Rochelle’s group, for example, was stopped for roughly ten minutes by a woman who just had to know what was going on. She said that she had seen groups all over the Loop and just wanted to say how inspiring it was to see something so positive for young black men.”

Nobody knows what’s going to work, and I know from talking with people deeply invested in increasing diversity in the profession that most of the time it’s incredibly frustrating. But, when you read about Henderson, Dates, and Clayton Wilson, Mario Davis, Terrell Tillman and their fellow students who are pushing themselves to see what potential they have, you think, maybe there’s a decent chance.

Reporter Maria Kantzavelos profiles Theresa Cropper, the director of diversity and professional development at Perkins Coie, who achieved great success at Northwestern University School of Law, increasing its diversity to the point where more than a third of Northwestern’s students are minorities.

Olivia has an interesting story on women in firms who were frustrated at the difficulty they were having in building a book of business and took it upon themselves to create their own networks of women.

Maria also took a look at diversity on the bench in the collar counties areas of incredible growth, with little of their increasingly diverse population reflected on the bench.

John Rooney, a reporter for the Daily Law Bulletin, has a comprehensive story on the movement within corporations to create mediation programs to corral their litigation costs.

I would also like to mention two columnists who are moving on. Joe DuCanto, of Schiller DuCanto and Fleck, has been writing on family law issues in this magazine for eight years. Joe has been terrific to work with, always friendly, and always thought-provoking.

And Maria Vasos has just graduated from Chicago-Kent, so the column will move to new ownership. I want to thank Maria for taking on the burden of starting our column, ”3L and the City.” We didn’t know exactly what we wanted, so Maria gave us what she thought the column should be, and it’s been a great start.

— Robert Yates

Info Tech Law: Three strikes and you’re out

By Alan S. Wernick
Wernick & Associates

The U.S. Supreme Court says the right of publicity protects the proprietary interest of an individual to ”reap the reward of his endeavors.” Zacchini v Scripps-Howard Broadcasting Co. (1977). How does the right of publicity fare against the First Amendment? In a recent case, Major League Baseball stepped into the arena of the federal courts with this question, and struck out while trying to enforce rights of publicity.

Strike One

In C.B.C. Distribution and Marketing Inc. [CBC] v. Major League Baseball Advanced Media L.P. [MLB], (E.D. Mo. 2006), CBC filed a declaratory judgment action seeking to use, without license, the names of and information about major league baseball players in connection with CBC’s fantasy baseball products. CBC uses its Internet website (www.cdmsports.com) to sell its fantasy sports products, which incorporate the names, statistics, and biographical data of major league baseball players.

As the case evolved, the key issues became (1) whether the players have a right of publicity in their names and playing records as used in CBC’s fantasy games, and, if the players have such a right, whether CBC is violating the players’ claimed right of publicity; and (2) if the players have a right of publicity that has been violated by CBC, whether the First Amendment applies and, if so, whether it takes precedence over the players’ claimed right of publicity.

To determine the elements of the right of publicity, the district court cited the Missouri Supreme Court in Doe v. TCI Cablevision (Mo. 2003). In the TCI case, the Missouri Supreme Court held that ”the elements of a right of publicity action include: (1) That defendant used plaintiff’s name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage.” The district court held that CBC ” … is not violating the players’ claimed right of publicity.” The district court held that the First Amendment takes precedence over the right of publicity.

Strike Two

MLB stepped up to the plate in the 8th U.S. Circuit Court of Appeals (CA8, 10/16/2007). In examining the right of publicity issue, the court of appeals disagreed with the district court: ”Because we think that it is clear that CBC uses baseball players’ identities in its fantasy baseball products for purposes of profit, we believe that their identities are being used for commercial advantage and that the players therefore offered sufficient evidence to make out a cause of action for violation of their rights of publicity under Missouri law.”

However, the court of appeals agreed with the district court that CBC’s First Amendment rights supersede the players’ rights of publicity. The 8th Circuit noted that, although this ” … dispute is between private parties, the state action necessary for first amendment protections exists because the right-of-publicity claim exists only insofar as the courts enforce state-created obligations that were ‘never explicitly assumed’ by CBC.” The U.S. Supreme Court directed in Zacchini that ” … state law rights of publicity must be balanced against first amendment considerations.” The appeals court concluded … that the former must give way to the latter.”

The 8th Circuit found persuasive a California decision, Gionfriddo v. Major League Baseball (Cal. Ct. App. 2001), in which MLB was, in effect, in CBC’s shoes seeking to protect MLB’s First Amendment rights, and defending MLB’s use of players’ names, likenesses, and information against the players’ asserted rights of publicity.

The Gionfriddo court stated that ”Major league baseball is followed by millions of people across this country on a daily basis … The public has an enduring fascination in the records set by former players and in memorable moments from previous games … The records and statistics remain of interest to the public because they provide context that allows fans to better appreciate (or deprecate) today’s performances.”

Also, the ”recitation and discussion of factual data concerning the athletic performance of [players on MLB's website] command a substantial public interest, and, therefore, is a form of expression due substantial constitutional protection.”

Turning its attention to CBC’s use of the Internet, the 8th Circuit states: ”We also find no merit in the argument that CBC’s use … is not speech at all. We have held that ‘the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games’ is speech entitled to first amendment protection. See Interactive Digital Software Ass’n v. St. Louis County, Mo. … (8th Cir. 2003).

Similarly, here CBC uses the ‘names, nicknames, likenesses, signatures, pictures, playing records, and/or biographical data of each player’ in an interactive form in connection with its fantasy baseball products. This use is no less expressive than the use that was at issue in Interactive Digital.”

Strike Three

On June 2, 2008, the U.S. Supreme Court denied MLB’s petition for certiorari.

Game over.

The bottom line: the right of publicity is a viable legal right, but must be interpreted through the lens of the First Amendment.

© 2008 Alan S. Wernick

Firm Life

Stephen M. Passen and John J. Driscoll (pictured) have joined in partnership to form Law Offices of Passen & Driscoll. The new firm will handle personal-injury cases. Sullivan, Ward, Asher & Patton, a full-service law firm based in Southfield, Mich., has opened a new office in Chicago, at 70 W. Madison St., suite 1400.

Baker & Daniels, an Indianapolis-based firm, has opened a new office in Chicago, at 311 S. Wacker Dr. The office will be headed by Richard E. Michaels, domestic and international transactions, and David M. Allen, business litigation; both were shareholders with Schuyler Roche. Five additional attorneys have joined the firm from Schuyler Roche: partners Andrew W. Geier, corporate finance; Catherine C. Gryczan, corporate finance; and Rachel T. Nguyen, business litigation; senior mergers and acquisitions and securities counsel Mary K. Walter; and associate Randall R. Schwartz II, corporate finance.

Herbert A. Glieberman & Associates has moved its office to 70 W. Madison St., suite 1400.

Barnes & Thornburg has named Rick Carpenter the firm’s new chief marketing officer. Carpenter previously served as the director of marketing and business development at Shearman & Sterling in New York.

Baker & McKenzie has appointed David M. MacLeod as director of global business solutions. MacLeod most recently ran a consulting firm focused on setting and monitoring business goals.

Evan L. Merberg has joined Mayer Brown as chief operating officer, succeeding Executive Director Stephen R. Wells, who is retiring from the firm at the end of 2008. Merberg served most recently as chief financial officer and chief administrative officer of Citi Home Equity, a division of Citigroup Inc.

Philip Hartnett Corboy, Jr., a partner at Corboy & Demetrio, was installed as president of the Illinois Trial Lawyers Association.

Two Schiff Hardin attorneys were elected to leadership positions in the Black Women Lawyers’ Association of Greater Chicago, Inc.: associate Marla Shade Harris was re-elected as the board’s recording secretary, and partner Tracy A. Campbell was elected board member-at-large. Donna L. Moore, an associate at Quarles & Brady, was also been elected board member-at-large.

>Partners

SmithAmundsen has elected Linda F. Newman, health care practice, partner in the firm.
Much Shelist has elevated Gregory B. Mann, wealth transfer and succession planning, from principal to equity principal. The firm also named three new principals: Jonna Daleiden Eimer, business and finance; Joel E. Resnick, real estate; and Wendy M. Reutebuch, real estate.

Rock Fusco has named Eileen E. Rosen, commercial litigation and civil rights defense, a partner in the firm.

Leydig, Voit & Mayer has promoted three associates to members: Kevin C. Parks, trademark and copyright; Robert T. Wittmann, electrical, computer, software, and mechanical engineering; and John Gase, biotechnology, chemistry, and related arts.

Michael Best & Friedrich has elected two associates to partnership: Carrie A. Hall, litigation; and Christopher R. Parker, litigation.

>Moves

To Kaye Scholer: partner Eric H. Sussman, regulatory enforcement and white-collar litigation, from the U.S. Attorney’s Office for the Northern District of Illinois.

To Cheng Cohen: partner Michael Daigle, business transactions and franchising, from Quizno’s, where he was executive vice president of international development and legal.

To Greenberg Traurig: shareholder David L. Newman, intellectual property and technology, from Seyfarth Shaw.

To Butler Rubin: associate Joelle K. Blomquist, litigation, from Jenner & Block.

To Katten Muchin Rosenman: partner David C. Bohan, financial services litigation, from Reed Smith.

To Holland & Knight: partner Deborah T. Haddad, real estate transactions, from Lennar Corp., where she was senior vice president; senior counsel David D. Streicker, real estate, from the Illinois Department of Commerce and Economic Opportunity, where he served as general counsel and ethics officer; and senior counsel Christopher DeLise, mergers and acquisitions, from DLA Piper.

To McGuireWoods: counsel Emily C. Tremmel, health care, from the American Dental Association, where she was a staff attorney.

To Vedder Price: shareholders Arlene N. Gelman and John E. Zummo, both in bankruptcy, insolvency, and corporate reorganization, and both from Reed Smith.

To Anderson, Rasor & Partners: associate Bradley Z. Schulman, medical malpractice, from McKay, Nora, Tanzillo & Kott.

To Schoeman, Updike & Kaufman: partner Mary Smith, litigation, from the U.S. Department of Justice, where she served as a trial attorney and associate counsel to the president; of counsel Sarah R. Marmor, litigation, from Jenner & Block; and Joan E. Slavin, employment and labor law, from Sidley Austin; and associate David Austin, complex litigation, from Jenner & Block.

To Rock Fusco: associate Stacy A. Benjamin, commercial litigation and civil rights defense, from the City of Chicago Law Department.

To Dykema: counsel Daniel J. Zollner, litigation, from Ross, Dixon & Bell.To Levenfeld & Pearlstein: partner Jonathan Friedland, restructuring and insolvency, from Schiff Hardin.

To Michael W. Hansen (Joliet): associate Valerie N. Breitbarth, real estate, estate planning, and corporate, from the Law Office of Valerie N. Breitbarth (Homer Glen).

To Perkins Coie: partner Joseph Q. McCoy, real estate, from Schwartz Cooper.

To Hinshaw & Culbertson: partner (Lisle office) Andrew D. Braetzel, from ServiceMaster Clean, where he was vice president, secretary, and general counsel.

To Ungaretti & Harris: partner Steven F. Banghart, health care, from Katten Muchin Rosenman.

To DLA Piper: partner Stuart M. Berkson, corporate and finance, from McDermott Will & Emery.

To Jones Day: of counsel William C. Martin, health care, from DLA Piper.

To Freed & Weiss: partner Michael J. Lotus, complex and class-action litigation and arbitration, from Winston & Strawn.

To Susan E. Kamman & Associates (Barrington): associate John C. Wroblewski, family law, from Downs Law Offices.

>Changes

Florence E. Miller, an intellectual property attorney who worked at Kimberly-Clark Corp. and Brinks, Hofer, Gilson & Lione, died at age 94.

Financial Services: Examination priorities to protect investors

By James J. Eccleston
Shaheen, Novoselsky, Staat, Filipowski & Eccleston

FINRA (the Financial Industry Regulatory Authority) has issued its publication, ”Improving Examination Results” to highlight ”examination priorities.” Many of the examination priorities relate to investor protection issues, including guidance regarding the recommendation of, and required risk disclosures for, purchases of auction rate securities. Let’s examine three of the more important investor protection issues.

1. Senior Issues. FINRA’s efforts to educate investors, advisers, and financial services firms have focused on sales seminars. Specifically, FINRA is concerned about ‘’sales pitches masquerading as educational seminars, misleading advertising and sales materials, poor supervision, product suitability and outright fraud.” FINRA references its ”cogent summary” of its concerns in Regulatory Notice 07-43. In its examinations of firms, the regulator will ”focus on sales to seniors and other investors approaching requirement.”

Among other things, FINRA will scrutinize advertisements and sales material to ensure that they are fair and accurate, will be suspicious of ‘’self-conferred designations or other unwarranted claims of senior specialty,” and will ensure that investment recommendations are suitable, given current investment objectives and age.

2. Deferred Variable Annuities. Since May 5, 2008, FINRA has begun examining for compliance with the new provisions of Rule 2821, which the SEC approved over the strong objections of the financial services industry.

Firms now have responsibilities both in terms of the suitability and supervision of recommendations to purchase or exchange deferred variable annuities (which are life insurance annuity contracts whose value fluctuates over time, and whose income is delayed).

In terms of suitability of recommendations, financial advisers must take into consideration whether: (1) the customer will incur a surrender charge, be subject to a new surrender period, lose existing benefits (such as death, living, or other contractual benefits), be subject to increased fees or charges (such as mortality and expense fees, investment advisory fees, or charges for riders and similar product enhancements); (2) the customer will benefit from product enhancements and improvements; and (3) the customer’s account has had another deferred variable annuity exchange within the preceding 36 months.

Financial advisers not only must gather personal and financial information from the investor, but also must make reasonable efforts to determine the investor’s ”intended use of the deferred variable annuity.”

Finally, in the SEC’s release approving the changes to Rule 2821, a footnote highlights an additional, ongoing duty: ”The general suitability obligation requires a [financial services firm] to consider its customer’s ability to understand the security being recommended, including changes in the customer’s ability to understand, monitor, and make further decisions regarding securities over time.”

3. Sales of New or Non-Conventional Products, Including Auction Rate Securities. FINRA is concerned with the features and characteristics of new or non-conventional products.

Among other things, firms must ”conduct adequate due diligence to understand the features of a product,” and firms should not recommend a product to investors if their advisers do not understand it. There must be ”a balanced disclosure of the risks and potential awards associated with the particular product.”

In particular, FINRA is focused on the suitability of recommendations to purchase hedge funds, CMOs (collateralized mortgage obligations) and CDOs (collateralized debt obligations), REITs, auction rate securities, and other products. FINRA emphasizes, ”Many of these products are not suitable for all customers.”

Auction rate securities recently have been in focus, as investors have come to learn that these investments are neither safe nor liquid.

FINRA references MSRB Notice 2008-09, which the Municipal Securities Rulemaking Board published on February 19, 2008. The MSRB notice observes that auction rate securities ”historically have been sold to investors seeking short-term, liquid investments.”

It highlights MSRB’s rules on disclosure and suitability, specifically noting that, ”The duty to disclose material facts to a customer in an auction rate securities transaction includes the duty to give a complete description of the security, including features of the auction process that likely would be considered significant by a reasonable investor.”

The MSRB notice provides several examples, including: the duration of the interest rate reset period, information on how the ”all hold” and maximum rates are determined, and that an auction rate security recently was subject to a failed auction. Likewise, in terms of suitability of recommendations to purchase auction rate securities, the MSRB notice requires firms and their advisers to consider the investor’s need for a liquid investment.

These three examination priorities give a sense of FINRA’s agenda as it seeks to protect investors. Given the state of the markets — a host of senior issues, sales abuses with deferred variable annuities, and challenging new or non-conventional products — no doubt FINRA will be quite busy enforcing its examination priorities for years to come.

A ’soldier’ armed with love

By Maria Kantzavelos

To get to the heart of her philosophy on diversity, and the approach law firms should take toward that effort, Theresa Cropper turns to a metaphor illustrated by law professors Lani Guinier and Gerald Torres in their 2002 book, ”The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy.”

The metaphor is centered on the early days of coal mining, when miners carried bright yellow canaries alongside them into the underground. The birds, because of a more fragile respiratory system, served as an early warning signal to miners of the presence of dangerous levels of gases in the atmosphere. ”They’re working away and the canary is just whistling away and when the canary stops whistling and singing, and it starts sputtering, then that means the environment is soon to be toxic for everybody. It’s time to get out. Get the birdie out, get everybody out, because it ain’t happening,” Cropper said recently from her Chicago office at Perkins Coie, where she serves as the Seattle-based law firm’s director of diversity and professional development.

When it comes to her approach to addressing diversity in any institution, Cropper pointed out, ”The different person is the canary.”

”The canary is not sick, nothing is wrong with that canary. Something is wrong with the system,” she said. ”Something is wrong with the environment, and it’s going to be toxic for everybody soon. If you don’t calibrate your community for the canary, and keep the canary singing, then everybody is not going to make it.”

What that means, Cropper said, is that the institution should find systemic solutions, ways to create an environment where everyone not only minorities can thrive.

”The different person is really the signal for whether your environment is toxic. If you have different people in your environment and they’re not doing well, the approach should never be that there is something wrong with the person,” Cropper said. ”It should be: What’s wrong with the system? As long as the canary is singing, it’s fine. The minute it’s not singing is when it’s going to be wrong for everybody.”

Cropper, 54, has been in the business of diversity in the field of law for nearly 20 years, starting long before firms began to professionalize the notion by creating administrative positions that aim to manage the recruitment, retention, and advancement of lawyers who have traditionally been underrepresented in the profession.

In October 2007 she became Perkins Coie’s first director of diversity and professional development, after serving for three years as national director of diversity at DLA Piper.

She views her job as promoting an environment that ”values, appreciates, respects, and encourages differences.”

At Perkins Coie, Cropper is responsible for managing the firm’s diversity initiatives, policies, and recruitment efforts, as well as its professional development initiatives and firm-wide programs designed to support the advancement of all attorneys.

She serves as a resource, she said, working closely with the firm’s offices, practice groups, and committees on furthering strategies for recruiting and retaining diverse attorneys and tracking that progress, and for promoting the concept of diversity as being part of the firm culture.

”I tell my partners, ‘Look I need you to wear our diversity on your sleeve, every day. And then one day it’ll become your arm, and then one day it’ll become you. But you’ve got to wear it, that’s the first step,” Cropper said.

While Perkins Coie already had a diversity committee of practicing lawyers, charged with tending to firm-wide strategies to recruit, retain, and promote women and attorneys of minority race, ethnicity, and sexual orientation, firm leaders wanted to further the initiative by committing a full-time position to manage the task, said Robert Giles, firm-wide managing partner. Giles said law firm leaders searched for a year to find the right person for the job.

”When we met Theresa it was like: Wow here’s someone who has been there, done this. And we also felt she’d fit into our culture,” Giles said. Theresa’s personality is infectious when it comes to ideas and things to do. She believes in what she’s speaking to you about. She is just so committed, and 100 percent behind what she expresses, that it just gets everybody else much more committed on their own part.”

Student affairs

When Cropper steps out into the wider legal community whether she is speaking at conferences or attending special events she’s bound to run into a few of her ”babies,” as she likes to call them.

Those ”babies,” whom a spirited Cropper tends to greet with hearty hugs, could be grown-up partners in law firms who were once students at Northwestern University School of Law, where Cropper played a significant role for 14 years.

Her tenure there started in 1990, when she became the school’s first director of minority affairs, culminating in 2004 as associate dean for student affairs and dean of students.

”I really have always seen myself as a king- and queen-maker,” Cropper said, referring to her role in guiding students from all sorts of backgrounds through law school and into careers across the country and the globe. ”I just felt like I could be successful vicariously.”

Cropper, a single mother of two sons ages 19 and 16 who spent much of their childhood in the law school setting, was instrumental in bolstering the representation of minority law students at Northwestern, where 36.1 percent of its student body is comprised of minorities, making it the most racially and ethnically diverse law school in Illinois, according to the 2008 Chicago Lawyer Diversity Survey.

She arrived at Northwestern armed with a law degree from American University, Washington College of Law, and experience working with Operation PUSH, as an administrative assistant to Jesse Jackson, and with music legend Stevie Wonder on numerous projects, including the campaign in the early 1980s to establish a national holiday honoring Martin Luther King, Jr.

When she stepped into the school’s newly created position of director of minority affairs a position that existed then in just a few of the nation’s law schools Cropper’s main objective was to increase the number of minority students at the law school and to foster an environment that would support their success in the JD program and beyond.

”I wanted to go find them, keep them, make sure they graduated and make sure they stayed connected as alumni,” Cropper said. ”You created a community where people were going to be encouraged to thrive.”

That meant more targeted recruitment efforts and a say in the admissions process; finding ways to get minority students engaged in the law school once they arrived, like encouraging their participation in moot court, law review, and student government; working with student organizations in developing their programs and strategies; and counseling individual students on everything from the right courses to take and how to study, to career choices and landing the right job, and how to develop professionally beyond the hard skills of law, like understanding networking, how to present themselves and how to ”work a room.”

”For me, hunger is a proxy for success,” Cropper said, offering some insight into her approach to the recruitment and admissions process. ”The person that doesn’t have it, parents didn’t go to college, where success is the only option. They’re going to come in engaged because they really want to do what it takes to be successful. You’ve got to figure out who is going to be the best for us.”

When she started at Northwestern in 1990, minority students accounted for only about 8 percent of the school’s student population. By the end of Cropper’s tenure there, diversity at the law school hovered around 30 percent.

And as diversity at the law school rose, Cropper pointed out, so did the school’s admissions standards and its national rankings.

”Conventional wisdom says that’s a contradiction in terms that if you have diversity, somehow it’s going to lower your standards. They say, somehow, you’ve got to play with the standards to get diverse,” Cropper said. ”That’s not the reality. Diversity makes you better. By definition, it does.”

While her initial mission was to service minority students, Cropper’s role quickly evolved into one that would support the entire student body.

”It evolved as she made it evolve,” said Leonard Rubinowitz, a Northwestern law professor who helped hire Cropper. ”Her reputation was such that students wanted to get to know her and wanted her advice, and that crossed racial and ethnic barriers.

”She’s a small person with a large personality. People who meet her remember her, and people who have some reason to know her will get to know her quickly.”

Cropper’s office at the law school where students would not only come for advice about school and careers, and counseling on all sorts of life issues, but also just to chat ”was always this hodgepodge. You’d have all these collections of folks, and by definition you had to come in and wiggle your way in and just be part of the collection.”

That collection, she said, included African-Americans and Hispanics, Asian-Americans, and gay and lesbian students. But it also included the white woman whose dad was a truck driver, the mothers or pregnant students, people with disabilities, older students, and the white men who entered law school expecting diversity.

”My thinking was ‘minority’ was self-defining. I had my traditional babies, who were clearly underrepresented in the profession, but if for any reason you felt like you were a minority, you come on in here and I’d give you some love,” Cropper said.

She also knew when to give ”tough love.”

”I used to tell students, ‘You’ll either be a lawyer or a lawyer joke, one or the other, there’s no middle ground here.’ And that was my big ethics/honor code meeting,” Cropper said. ”And it’s really that simple. ‘You will do behavior that is honorable, that we respect, that lifts the profession up. Or, you’ll do something that will be fodder for a joke years later period. This is your reputation. You are coming into our profession. Make it better. And make us proud.”’

David E. Van Zandt, dean of the law school, said Cropper played a significant role in helping to change not only the demographics of the school but, more importantly, its culture.

In 1998, Van Zandt promoted Cropper to the position of assistant dean for student affairs, and in 2001, she became a key member of the school’s management committee as associate dean for student affairs and dean of students.

”I thought her talents could be applied across the board,” Van Zandt said. ”We were on the same page in terms of where we wanted the school to go. We really tried, here, to change the student culture dramatically. She was the key person in doing that, moving away from a dependency culture to one where the students take a lot of initiative and responsibility. They’re the real leaders.”

A ’soldier’ in The Movement

Cropper, whose grandmother was born in Coffeeville, Miss., and migrated to Chicago, where she raised a family and worked in a job sewing mailbags for the U.S. Postal Service, said she was taught from a young age that she is ”from Chicago, second-generation North.”

For a long time, we kept getting the Coffeeville Courier. And there was this section called the ‘Colored News.’ When my cousin got married, she was in the Colored News and we just had such a hoot about that,” Cropper said. ”For us, it was a big joke. It was like, ‘Oh let’s see what’s happening in the Colored News.’ But you knew there was that connection, that we had migrated for a better opportunity.”

As a girl, Cropper said, she lived ”episodically” in public housing projects of the Chicago Housing Authority until her ”matriarchal” family including her grandmother, mother, aunts, siblings, and cousins settled into the house her grandmother purchased on a dead-end street in the city’s South Side.

She said she grew up learning the stories of her ancestors, like her grandmother’s aunts who were traveling teachers on horseback, educating fellow black children because ”black people had to educate their own at that time,” and how the women struck a deal with a missionary family in Washington, D.C. The family needed help with housekeeping and caring for the children. Cropper’s grandmother, then a young woman, would work for the family and, in exchange, she could attend a nearby school comprised then of all-white males.

”She had to sit in the back of the room, and she could only speak if no one else had the answer,” Cropper said. ”Her thing was, you always had to know a joke or a poem. Because you never knew when you were going to be called upon to say something. And you had to say something; you couldn’t lose that opportunity.”

Implicit in her grandmother’s stories, Cropper said, ”was that we never, ever internalized that white people were smarter than us nor did we ever really get it that other black people just assumed that white people were smarter than them and that we always should seek an opportunity to express ourselves.

”It was interesting to have that kind of history that was very strong and very important,” Cropper said. ”But we also had this political sense of where we were, in terms of race, and where the country was. It was an interesting kind of contradiction, because we understood where we were, but we never felt suppressed. My grandmother always said, ‘Think yourself above it.”’

Cropper, who was old enough to remember when her mother marched with King from Selma to Montgomery, Ala. and how her grandmother had to send bail money for her release from jail after the march likes to say she was raised to be a ‘’soldier in the Civil Rights Movement.”

”You were raised to fight for things that you may never see,” Cropper said. This generation doesn’t know about that. This is a generation that saw Nelson Mandela walk out of prison. They saw the Berlin Wall go down. They saw the fall of Communist Russia. And they didn’t see the carnage that led up to that, the lives that were lost.

”We worked on Free South Africa, and I never thought I’d see Nelson Mandela come out of that prison ever. But you fought for his freedom,” Cropper said. ”That’s what I was raised to do: To get in, keep the door open, push it a little wider, let everybody in, help them out, push them on, get them to keep the door open. …”

Cropper’s late mother, Joan Jeter Slay, a community organizer who pushed for Chicago Public School reform, was one of the architects behind the creation of local school councils.

For Cropper, who served on the local school council of her son’s elementary school, law school was a means of following through with the emphasis on public service instilled in her from a young age.

”I grew up looking at how laws changed our lives,” Cropper said. ”To me, if you were going to be a change agent, then law was a good tool to be in your tool kit.”

Cropper was born in 1954, the year of the historic challenge to school segregation in Brown v. Board of Education, she pointed out.

She was in law school during the 1978 landmark U.S. Supreme Court decision on affirmative action in Regents of the University of California v. Bakke.

While in law school, Cropper served as the first woman president of the National Black Law Students Association. After graduation, she worked for a brief stint as membership director for the Washington, D.C.-based National Bar Association, until she accepted an offer to return to Chicago and work for Operation PUSH.

That was also around the time when Cropper met Stevie Wonder, at an Operation PUSH gospel concert. The two became ”gossip buddies,” she said, and the musician and social activist asked her to work with him in Washington, D.C., where he had been spearheading an effort that resulted in the federal holiday honoring King.

”Stevie saw it as an imperative,” Cropper said, referring to legislation authorizing the holiday, which went through numerous attempts at gaining congressional support before the bill was ultimately signed by President Ronald Reagan in 1983. ”For a nation of differences this holiday says we all have the same dreams, and here is someone who reminded us of that.

”We did a massive PR campaign, as well as targeting who didn’t vote for it, why they didn’t vote for it. We did a huge petition drive,” Cropper said. ”We underestimated the power of celebrity, but it came on the House floor and it passed, which was just unbelievable. And for the first time ever it moved to the Senate side. Senator [Edward] Kennedy was the sponsor of the legislation and it passed. Reagan, who was saying he would never sign it, signed it.”

Cropper, who has known Wonder for 27 years, said she still works for him as a consultant, serving as a liaison between Creative Artists Agency one of Hollywood’s top talent agencies and Wonder’s management.

”He’s a national treasure. Whatever I can do to help him, I will do it,” Cropper said. He is as friendly and as loving as you think he is from listening to his music. He’s a sensitive, kind soul. He’s quick to cry about tragedy. He has an outrageous sense of humor. He’s very playful. … He’s a really brilliant man, beyond his music.

Reunions

At Perkins Coie, Cropper has reunited with many of her ”babies” from her Northwestern years. Take Joseph McCoy, a 1998 Northwestern law graduate who joined the firm in May as a partner in its real estate group.

”He grabbed me from his [law school] application from day one,” Cropper said. ”Here’s a black kid who’s captain of the football team at University of Chicago, and I’m thinking, ‘This kid can do anything. If he can be captain of the football team and perform successfully enough where we’re considering him for Northwestern, this is a star.”’

During his years in law school, McCoy said, Cropper was ”a mentor, and almost like a second mother to me, in terms of being a resource and looking out for me and providing sound advice and making sure I stayed on track.”

Cropper was quick to offer the backstory on how her former student, years later, landed at Perkins Coie, from the law firm Schwartz Cooper.

”One of our clients said, ‘You know, the other half of the business that we give you is with this guy over here at this firm, you might want to check him out.’ They [the firm] didn’t know he was African-American,” Cropper said. ”That’s the ultimate beauty. Here’s this kid, who was one of my babies, who is now coming over here as a partner. It’s where we should be color was the added value. … It’s like, ‘Well, thank God he’s an African-American, but that was not the attraction.’ The attraction was that he had the client’s other half of the business. … And it’s a triple win for us. We got the business in the door, we got an African-American partner it’s a beautiful thing.”

Steven Washington, a former Mayer Brown partner who serves as chief of staff to the Chicago Board of Education, is another of Cropper’s former Northwestern law students.

As the first in his family to graduate from law school and college, Washington, who is African-American, said he appreciated Cropper’s nurturing approach to helping him navigate his way through law school.

”She served as a good, strong knowledge base understanding how to deal with professors, how to tackle the competitive notion of law school, and how to not let it become overwhelming or intimidating,” Washington said. ”Literally, she was like a friend, to the extent that you could go into her office and kind of loosen your tie. You could relax in her presence. By virtue of her creating that environment in her office, everyone who came to her was just more open to the potential to forming relationships. You could certainly get to know people better, just through Theresa.”

Cropper acknowledged that it wasn’t easy for her to break away from Northwestern.

”It was just such a wonderful, comfortable place, and I never, ever dreamed of leaving,” she said. ”I would tell people, ‘Send your grandkids, I’ll be here.’ I said, ‘You guys, when you make money, build me a porch right outside my office.”’

She said it was the persistence of her friend Peter Bynoe, now senior counsel in the Chicago office of DLA Piper, that prompted her to cut the cord and make the transition into the law firm world.

Bynoe was looking for the right fit for the position of national director of diversity, to assist the firm in achieving the goals it had articulated in its strategic plan in terms of creating an environment that would recruit, train, retain, and promote more diverse attorneys.

”What I was trying to do at the firm was really define diversity, not just in terms of minority associates and partners, but really, diversity in the context of improving the overall firm,” Bynoe said. ”I needed somebody to make it work and make it work right. I needed somebody that was, really, a guaranteed winner.”

In Cropper’s three years at the law firm where she had an impact on diversity retreats, in the training of firm leaders on diversity issues, ”and on making all our diverse attorneys and non-diverse attorneys know there was somebody who not only cared about the issue, but cared about the individual practicing attorneys” Bynoe said he could see how her value in the law school setting quickly applied to the law firm world.

”Her primary focus when she came to Northwestern was minority students, and she ended up being the dean of all students,” Bynoe said. ”I saw her do the same thing in the firm. Even though her initial focus was on minority partners and associates, assisting them in navigating the firm, very quickly it became clear that she was having a great impact on everybody in terms of the realities of how to be successful in a large international law firm on how to focus on a career path, develop relationships, and really gain the respect of your peers to be successful, no matter what your background.”

Cropper, who is now into her ninth month at Perkins Coie, said she sees diversity which comes down to ”creating an inclusive community, where everybody gets a shot, and everybody knows what the shot is” as her ”mission” and her ”passion.”

As a society, she said, there’s far more work to be done.

”You look and you say, ‘Okay, there are more people of color who are more successful, who are making more money.’ But there are still a lot of people, poor people, who are just underserved by our society in so many ways,” Cropper said.

”We cannot sit and say, ‘Things are really great now because, look at me, I’ve got a nice job, I drive a nice car.’ There’s so much work to be done. There are still inequities in so many places,” Cropper said. ”For me, I’ve found a little niche where it’s clear to me where the inequities are, and I believe things can get better.”

Minorities lag in taking bench in collar counties

By Maria Kantzavelos

When Jorge L. Ortiz launched his law career in 1990 as an assistant state’s attorney in Lake County, before transitioning into private practice, he was among a handful of minority lawyers practicing in the area situated on the shore of Lake Michigan, between Chicago and Wisconsin.

”We had two Latino lawyers working in this county when I first started,” said Ortiz, the son of Puerto Rican immigrants who was raised in Logan Square. ”We had maybe two or three African-American lawyers working in the county at that time, who worked regularly in the courthouse.”

Ortiz, who was appointed as an associate judge in 2002 to the 19th Judicial Circuit covering Lake County becoming the first Hispanic judge in the circuit said he has seen more minority lawyers in Lake County than when he started practicing there, ”but it’s not at a level where it should be.”

The pool of seasoned, minority lawyers practicing in Lake and the other counties surrounding Cook is, perhaps, one of the factors at play when it comes to the representation of minorities on the bench, judges and leaders of local bar associations said.

”We don’t have a lot of Latino and African-American lawyers that practice in this county. That is going to diminish the pool that you select judges from. That’s an issue,” Ortiz said.

While Cook County has made some strides in diversifying the bench, particularly in bolstering the representation of African-Americans, the judicial circuits covering its five bordering counties which have seen an explosion in population in the last decade or so continue to lag in their representation of minorities among the ranks of the judiciary.

Numbers paint a picture
Of the 160 judges serving in the circuits that include Lake, Will, Kane, DuPage, and McHenry counties, seven are minorities four African-Americans, two Hispanics, and one Arab-American, according to the 2008 Chicago Lawyer Diversity Survey.

Of the 63 full-circuit judges in those five circuits, three are African-American. Only four of the 97 associate judges in the circuits covering the collar counties are minorities. One of them is African-American, one is Arab-American and two, including Ortiz, are Hispanic.

Associate Judge Luis A. Berrones, the other of the collar counties’ Hispanic judges, serves on the bench with Ortiz in the 19th Circuit. Berrones was appointed in October 2007, after 25 years in practice, mostly in the firm now known as Drinker Biddle & Reath.

”I’ve seen more minority lawyers in Lake County, and a lot of the minority lawyers seem to be fairly young. I think one of the factors is the fact that you still have a very young pool of minority lawyers, and they’re not putting their names in to be associate judges,” said Berrones, 51. ”I wanted to be in private practice for a certain amount of time, get the experience, get on financial footing. I don’t know if that’s the other lawyers’ thinking at all. It could be that many of them feel they need to gain more experience.”

Associate judge vacancies can be one of the most reliable routes for getting more minorities on the bench. Several judges interviewed for this story said circuit judges, who appoint associate judges, tend to consider lawyers with at least 10 years in practice.

”For a judge, you’ve got to look at the bar population of people with more than 10 years of experience. It’s more complicated than just looking at the picture and saying there’s not enough [minority representation],” said Circuit Judge F. Keith Brown, the only African-American judge in the 16th Circuit, which includes Kane, Kendall, and DeKalb counties.

Lake County Circuit Judge Jane D. Waller, who became the first female associate judge in Lake County in 1981, and its first female full-circuit judge in 1996, has had a hand in the appointments of 18 associate judges.

”We’re looking for, generally, around 12 years of experience,” said Waller. ”We need to see how you operate, we need to know what your personality is like, we need to know how you manage your cases. Just looking at an application, and seeing your credentials and interviewing you, doesn’t give us a full picture. We like to see them in action.”

Brown, who was raised in Elgin and maintained his law practice there, was appointed as an associate judge in 1991, becoming the first African-American judge in the 16th Circuit’s history. He prevailed in the race for full-circuit judge in the March 1996 primary election and ran unopposed that November.

”This was before Obama. They didn’t think an African-American could win in this area,” said Brown, adding that he had unique advantages, including a well-known family name.

Brown said one of the reasons he became a judge was to help open doors for other minorities in the legal community.

Increasing the size of the local pool of minority lawyers is key to accelerating racial diversity on the bench, he said, adding that the state’s attorney’s office and the public defender’s office in Kane County have made efforts to hire minority lawyers.

”The key thing is to get minority and gender associates who will later be elected as circuits, because it’s the circuits who pick the associates. In order to have quality associates you need a pool of attorneys to draw from,” Brown said. ”It’s a process. To build a base of qualified people who will want to participate in that process, you don’t just do that on a whim. It takes a long time.”

In the most recent application process to fill an associate judge vacancy in the 16th Circuit, Brown said, 41 lawyers applied. Of those applicants, two were African-American, one was Hispanic, and 13 were women.

”It’s not a significant size of a pool. Out of 41 people, and you only have two blacks who apply and only one Hispanic, that’s not even a pool, that’s not even a bathtub. That is a sink.”

To be eligible for a judgeship, a lawyer must reside in the circuit in which he is selected to serve.

”That kind of also limits the pool of lawyers who can put their name in for judge,” said Berrones, who was raised in Chicago, but has lived in Lake County for 25 years.

Several judges speculated that many minority lawyers are choosing to practice in Chicago.

”My thought is that if you’re a minority attorney and you have a choice of working in a small town like Waukegan or at a big firm in Chicago, you might decide you’re going to take the big salary in Chicago, rather than trying to develop a practice in a small town like Waukegan,” Lake County’s Waller said.

Inside the courtroom, said Ortiz, ”I see Hispanics, blacks, Russian immigrants, Polish immigrants, Asians. It’s a very, very diverse county in terms of race, in terms of socio-economic status.”

Ortiz said he has made a commitment to the community, visiting schools to talk to students about the importance of education and encouraging them to consider a career in the law.

”What I tell them is that you don’t know, necessarily, where you’re going to end up, but no matter where you end up, you have an obligation to serve your community,” Ortiz said. ”You have to be prepared, and you have to give something back. Hopefully it’s here, because there’s a real need here, a real opportunity here.

”There are really good opportunities for lawyers to have successful practices in this county. It would be good for business if you had Spanish-speaking lawyers here and more African-American lawyers, given the population in the county,” Ortiz said.

A more diverse circuit
With 36 judges, the 19th Circuit is among the more diverse circuits of the collar counties, both in terms of racial diversity and its representation of women on the bench.

Five of Lake County’s 12 full-circuit judges are women. And besides Ortiz and Berrones, the 19th Circuit includes Circuit Judge George Bridges, an African-American who is a former police chief of Waukegan, and Michael B. Betar, an associate judge who is Arab-American.

”I think the circuit judges have really tried to ensure that there’s diversity here. I think we’ve made strides,” Ortiz said. ”It’s been part of the strategic plan of the circuit.”

Still, Ortiz said, ”We can always do better.”

”Diversity on the bench is important,” he said. ”I think it really fosters public trust and confidence in the judiciary. It’s a diverse society we live in. The bench should be reflective of that.”

Lake County includes Waukegan and North Chicago, home to a significant number of African-Americans and Hispanics.

Acording to 2000 U.S. Census figures, Hispanics made up more than 45 percent of Waukegan’s population, while slightly more than 19 percent of the city’s population was comprised of African-Americans.

In North Chicago, blacks made up 36.3 percent of the city’s population, while 18.2 percent of the city’s residents were of Hispanic origin.

Across Lake County, African-Americans make up 6.7 percent of the population, while Hispanics account for 18.7 percent of the population, according to more recent, 2006 estimates from the U.S. Census Bureau.

Out of the 34 judges of the 16th Circuit, Brown is the only minority judge.

In Kane County, Brown said, the African-American population has remained fairly stagnant, while Hispanics are among the fastest-growing minority groups. According to 2006 estimates from the U.S. Census Bureau, Hispanics make up 27.8 percent of the county’s population. Statewide, it is estimated that 14.7 percent of the population is Hispanic.

”Our major thing right now is we need to have a Hispanic lawyer step up. It’s a growing population, it’s an important population,” Brown said. ”Right now, we have no Hispanic judges. Hopefully, in the next five years, we can change that.”

Meanwhile, Brown said, ”When you say who uses the criminal justice system, the black population because of other issues such as income and family structure their percentage of people in prison and the court system far exceeds their percentage within the [general] population.

”These are all reasons why we need more minority representation, but you just can’t say we need to bring in minority lawyers at any cost,” Brown said. ”Someone who’s not qualified and doesn’t do a good job will actually hurt the process more than help it.”

In fast-growing Will County, which includes the cities of Joliet, Romeoville, and Bolingbrook, two of the 12th Circuit’s 30 judges are minorities Associate Judge Marzell L. Richardson, Jr., and Circuit Judge Carmen Goodman, who are both African-American.

But that number is expected to decrease to one black judge come Dec. 1.

Goodman, a former assistant public defender who was appointed in January 2007 to a judgeship in that county’s newly created 4th Subcircuit becoming the first black woman to sit on the Will County bench lost the February judicial primary race to Democratic challenger Paula A. Gomora, who is white.

The state legislature in recent years created subcircuits in most of the collar counties, except DuPage. Subcircuits were also created in the 17th Circuit, which covers the counties of Winnebago and Boone.

”The argument was so that there would be more representation of people of color on the bench, the same rationale they had given to Cook County [where subcircuits were created in the early 1990s],” Will County’s Goodman said.

”There must be a commitment to diversity for [subcircuits] to work in the collar counties.”

With tremendous growth in Will County’s population, which went from 357,313 in 1990 to 668,217 in 2006, the number of minority attorneys practicing locally has also increased, lawyers and judges there said.

The Attorney Registration and Disciplinary Commission does not track the racial and ethnic demographics of lawyers, said James J. Grogan, deputy administrator of the ARDC.

However, perhaps some evidence of growth in the pool of minority lawyers in Will County emerged in January, with the establishment of the Black Bar Association of Will County.

Litricia P. Payne, an assistant public defender who serves as president of the newly formed bar association, estimated that there are about 20 African-American lawyers practicing in the county.

Payne said those numbers are significant compared to about 10 years ago, around the time when she joined the public defender’s office as one of four African-Americans and when there was one African-American serving in the state’s attorney’s office.

”[Diversity] absolutely is something we would like to see more of. The bench should represent the people that it serves, and we do have a lot of minority defendants,” Payne said.

Goodman estimated that there are about 50 minority lawyers of various races practicing in Will County.

”They’ve been out here, it’s just there’s only been one at a time [serving as judge], she said.

”I’m extremely hopeful in the future that there will be more representation on the bench,” Goodman said. ”We have talent out here, and I think we are an asset. It’ll take us continuously trying and continuously having a dialogue between us and those individuals that make these decisions.”

In the 18th Circuit covering DuPage County, there is no racial diversity among the 44 judges. Across DuPage, the U.S. Census Bureau estimates that 4.4 percent of the population is African-American, 9.9 percent of its residents are of Asian origin, and 11.9 percent of residents are of Hispanic or Latino origin.

”The county itself is increasingly diverse. We have many Asian-Americans, Indian-Americans, African-Americans. Particularly in Naperville, there’s tremendous diversity,” said Alfred A. Spitzzeri, president of the DuPage County Bar Association. ”But with respect to the local bar, the minority numbers are small.”

Several long-time DuPage circuit judges recalled seeing very few minority applicants for associate judge, including one African-American finalist.

And they could recall only one minority judge to have been elected to the bench there: Kenneth Moy, a Chinese-American who retired last year.

In McHenry County, there are also no minorities serving on the bench. And of the circuit’s 16 judges, three are women two of them full-circuit judges and one associate.

Women make strides
In more recent years in the collar counties, women have been making greater strides in their representation on the bench, judges there pointed out.

Of the 160 judges in the collar counties, 39 are women, including 19 full-circuit judges and 20 associate judges.

In DuPage County, four of 15 circuit judges are women, including the chief judge and those serving as presiding judges in divisions. And women account for six of the 29 associate judges.

The circuit gained another female associate judge in early June, with the addition of Karen M. Wilson, a former associate in the Downers Grove law firm of Smith, Rickert & Smith.

But the number of women on the bench in DuPage will return to 10 come early July, when Chief Judge Ann B. Jorgensen is scheduled to assume her new position as an Illinois appellate justice for the 2nd District.

Circuit Judge Bonnie M. Wheaton is currently among the longest-sitting female judges in DuPage. She was selected as an associate judge 20 years ago and has served as a full-circuit judge for about 18 years.

”[The representation of women] is better than it has been,” she said. ”I think it’s a very good representation.”

In Kane County, it is only in recent years that the pace of representation of women on the bench has increased, said Circuit Judge Judith M. Brawka. Over a span of 15 years, she said, five women were appointed to the bench in the 16th Circuit.

But within the last two years when two females were serving as full-circuit judges three women were selected to join the bench.

”That may mean nothing. I can’t say that was a turning point, but I do think that it is significant that our numbers did not start to increase until recently,” Brawka said. ”With experience has come more women coming into court in terms of trying cases, especially in the criminal area.

”No one bats an eye at a woman first-chairing a case in criminal. At least here in our county, there are not many women first-chairing civil cases, but I think that number is increasing.”

Brawka said she was the second woman in the circuit’s history to be appointed to the bench. That was in 1991. Today, the 16th Circuit’s 34 judges include seven women - three full-circuit judges and four associate judges.

When Brawka entered law in 1978 as an assistant public defender in Kane County, there were few women practicing in court.

”You could count us on one hand,” she said.

As a first-chair, she said, ”I was asked point blank, am I going to cry in court? I said, ‘Well, I’ll do my best not to.’ It was very welcomed when more and more women started both in the public defender’s office and the state’s attorney’s office.”

The judiciary today in the 16th Circuit, Brawka said, ”is more reflective of the community than it was in terms of women. Hopefully we’ll be able to do the same with minority representation.”

DuPage County’s Wheaton echoed that sentiment.

”I know when I go to judicial conferences the makeup of the judges has really changed in 20 years. There are many more women. I can remember the first time I actually had to wait in line for the ladies’ room. I said, ‘We’ve arrived.”’

As for the lack of minority judges in DuPage, Wheaton said, ”There are several minority attorneys in the state’s attorney’s office and in some of the municipal city attorney offices. I think they’re sort of in the pipeline now. As with women starting 20 years ago, in the next 10 years, we’ll probably see an increase of minority applicants and judges.”

Big Deals // Verdicts // Settlements

The Chicago Skyway was privatized with the help of Mayer Brown.

Deals

Mayer Brown is advising the state of Pennsylvania in a $12.8 billion deal to privatize the Pennsylvania Turnpike. The deal is a 75-year lease for Abertis Infraestructuras to repair roads and bridges in Pennsylvania, and to support 73 public transit agencies. Abertis, a Spanish company based in Barcelona, is one of the world’s largest private toll road operators. It directly manages more than 2,000 miles of toll roads and, indirectly, another 3,000 miles in 10 countries on four continents, including the Orlando Sanford Airport, Concourse E of the Atlanta International Airport, the Burbank Airport, as well as the Teodoro Moscoso Toll Bridge in San Juan, Puerto Rico. The consortium of investors includes Citi Infrastructure Investors and Criteria CaixaCorp, a major shareholder of Abertis.

Partner John R. Schmidt led the Mayer Brown team, which included partners David Narefsky and Joseph Seliga on deal arrangements; partner Robert Kelman on tax advice, and associates Bruce Bedwell and Jeromy Cannon.

Mayer Brown, and Schmidt, in particular, have been involved in several privatization deals of public infrastructure facilities. Schmidt was the lead lawyer in for the City of Chicago in the privatization of the Chicago Skyway, a $1.83 billion deal, and represented the State of Indiana in the $3.8 billion privatization of the Indiana Toll Road.

”This is one of more interesting things to come along,” Schmidt said. ”People haven’t done it. It’s new, and it’s complicated. The documentation is entirely new. We had to create a structure that would work to give the public assurances that the road would be maintained we had to develop operating standards, we worked with engineering firms to do that. These transactions had been done around the world, in Europe and Australia, but until we did the Chicago Skyway three years ago, no one here had done it.

”Here, the mayor asked me to represent the city in the leasing of the skyway. I told him, ‘I don’t know anything about it,’ and he said, ‘Neither does anybody else.’

”It’s a different sort of thing for a public entity to do; it’s not a traditional governmental process it really follows the corporate m&a auction model. We’re working with Morgan Stanley in Pennsylvania.

”You have to structure the process of determining the qualified bidders, the documentation. It cuts across areas leasing and sales, financial, there’s the governmental and the political element, the tax issues are novel long-term leases are treated as ownership transfers for federal tax purposes, though it’s only a lease; these are interesting tax issues.

”The value of these transactions for the governments is that it gives the government the ability to recover the public capital represented by that asset and use it for other purposes, so it gets more out of the asset than it was getting,” he said. ”The skyway brought the city $1.83 billion, and $500 million of that went into a permanent reserve fund. The interest on that fund is more than the city was getting out of the skyway. So, the city replaced the skyway revenue and had a billion left. The city ended up with a higher bond rating it made Chicago probably the strongest U.S. city from a financial perspective.”

Verdicts

A Cook County jury awarded more than $4.5 million to a woman whose stomach cancer spread aggressively after a pathologist misinterpreted test results.

Paula Gaulin, 44, underwent an upper gastrointestinal biopsy in 2003 at Hinsdale Hospital; a pathologist incorrectly interpreted a cancerous condition as normal. In fact, a tumor had grown in her stomach wall. In 2004, Gaulin underwent a partial gastrectomy with the removal of 10 stomach lymph nodes. A plaintiff’s expert testified that if Gaulin had been correctly diagnosed earlier, the cancer likely would not have spread to her lymph nodes and she would have been at a lower stage with an 80 percent cure rate. By the time of her surgery, the expert stated that the cancer was at a heightened stage and had a 20 percent cure rate. According to the expert, Gaulin, who is married with two children, has a 56 percent chance of a fatal recurrence by 2014.

Gaulin was represented by Timothy Richardson and Richard B. Rogich of Rogich & Richardson. The pathologist was represented by David C. Burther and Daniel Hronek of Cunningham Meyer & Vedrine. The hospital, which settled for $25,000 before trial, was represented by Mark D. Johnson of Johnson & Bell.

Settlements

The mother of a child who suffered a brain injury during birth agreed to a $15.35 million medical malpractice settlement, the largest settlement ever in DeKalb County, according to the plaintiffs’ lawyers.

In October 2001, 19-year-old Vanessa Jenkins of Aurora, was admitted to Valley West Community Hospital in Sandwich, for the delivery of her son, Cody Smithey. Jenkins’ labor proceeded uneventfully until one of the defendants, Dr. Martin Brauweiler, chose to use a vacuum extractor device to assist in the delivery of the minor plaintiff. Over the next 50 minutes, Brauweiler used the vacuum extraction device 18 times without success. Another doctor was finally called in to perform an emergency c-section after Cody’s fetal heart tones demonstrated distress. Cody, now 6 years old, suffered brain injuries as a result of the physician’s alleged negligence in using the Kiwi vacuum extractor device.

The plaintiffs alleged four areas of negligence: (1) that Brauweiler, a family practitioner, was not competent in the use of the vacuum extractor device; (2) that he negligently failed to discontinue using the vacuum extractor device after the first couple of attempts were unsuccessful; (3) the nursing staff negligently failed to advocate for the mother by insisting that Brauweiler stop using the vacuum when it was obvious he could not deliver the child using this device; and (4) that the hospital failed to exercise reasonable care in evaluating the physician’s competency and fitness to perform vacuum deliveries.

The plaintiffs were represented by Michael P. Schostok and Matthew L. Williams of Salvi, Schostok & Pritchard. The defendants Martin Brauweiler, M.D., and Sandwich Medical Clinic were represented by John G. Langhenry III and Melissa Gordon of Langhenry, Gillen, Lundquist & Johnson; Valley West Community Hospital by David C. Burtker and Peter Strauss of Cunningham Meyer & Vedrine; Peggy Wilson, R.N., and Medical Staffing Network by Diane M. Baron of Clausen Miller, and Joseph A. Farchione of Sutter, O’Connell & Farchione (Cleveland, Ohio).

The family of a 6-year-old boy who suffered brain damage because he wasn’t properly monitored after being treated for a heart condition settled for $12 million.

Jaylen Whitney was taken to the University of Chicago Medical Center in 2001 to undergo treatments for myocarditis, an inflammation of the heart. The treatment was conducted properly, but, because his heart stopped during the procedure, he was given a pacemaker and was placed on a ventilator. Hospital staff had to resuscitate the boy after he was found with dilated eyes and was unresponsive. According to the plaintiff’s attorney, apparently the heart monitors were picking up the pacemaker but his heart was not beating, and the boy was without oxygen for a long period of time. Jaylen suffered irreparable brain damage and requires constant care.

The plaintiff’s attorney was Geoffrey L. Gifford of Pavalon, Gifford & Laatsch. The hospital was represented by in-house counsel Jane A. McAtree and Joseph A. Camarra and Sara F. Marzullo of Cassiday Schade. The doctor and hospital staff were not named in the lawsuit.

The estate of a 43-year-old man who was killed in a car accident involving a drunk driver has settled its suit against the driver for $2.9 million.

At the time of the accident, the defendant was traveling in the wrong direction while speeding. The victim was married and had two adult children.

The plaintiff was represented by Jeffrey J. Kroll of the Law Offices of Jeffrey J. Kroll and Robert A. Clifford of Clifford Law Offices. The defendant was represented by Thomas W. Starck of Meachum & Trafman.

Two people who were injured after falling four stories from a porch have settled their lawsuit against the insurers of the apartment building for $2.15 million.

Allison Gwin and Cem Karsan were standing on a back porch in the 400 block of W. Webster Ave. in 2005 when the railing detached from the porch frame and they fell four stories to the ground. Gwin suffered spinal, pelvic, and rib fractures, a lung and abdominal injury, a broken shoulder, and a concussion. Karsan suffered a broken leg. Gwin’s case settled for $1.5 million and Karsan’s for $1 million.

The plaintiffs were represented by Francis Patrick Murphy of Corboy & Demetrio. The defendants were represented by Dennis A. Marks of Querrey & Harrow.

A truck driver who was injured in a rollover accident in Utica settled his lawsuit against a trucking company for $2 million, a record for vehicle accidents in Peoria County, according to John L. Kirkton, editor of the Jury Verdict Reporter.

Texas resident Charles Geiman, 50, suffered compression fractures to his back and a partially paralyzed diaphragm, resulting in dependency on an oxygen tank, and, according to his attorney, also suffered a traumatic brain injury.

Geiman was represented by Jeffrey A. Green of the Janssen Law Center in Peoria. The defendants were represented by Jonathan M. Lively and Kathleen M. McDonough of Segal McCambridge Singer & Mahoney.

A 55-year-old woman who claimed she was not promptly diagnosed or treated for a spinal epidural abscess has settled her suit against the hospital for $1.9 million.

Barbara Miner went to the University of Chicago Hospitals emergency room in 2006, complaining of pain between her shoulders and paralysis from the neck down. She waited three hours to be seen by a neurologist, and 30 hours for an MRI. Between her esophagus and spinal cord, the hospital staff found a spinal epidural abscess that was pushing on her spine. Emergency neurosurgery was performed about 34 hours after she arrived at the emergency room. Miner can walk and run, but suffers from chronic pain and some loss of feeling below her waist.

Miner was represented by David R. Barry, Jr. of Corboy & Demetrio. The hospital was represented by Joseph A. Camarra of Cassiday Schade.

Opening Statement: A brilliant adaptation

By Julian Frazin
Michael Best & Friedrich • Entertainment Critic

May it please the court…

To paraphrase a Gershwin lyric from ”Porgy & Bess”: ”Summertime and the cost of living ain’t easy. Prices are jumpin’ and the gas costs are high—” I suppose our lame-duck president might suggest, as he always does in times of crisis, that we should ignore it all and go out and spend — spend — spend.

Well, this time I might agree with him but only if you plan on spending your deflated dollars on entertainment. As every Londoner can tell you, there was nothing to relieve the pressure and fears during the blitz of World War II than a night at a good show in the West End.

But a word of caution. With the price of gas approaching $5 a gallon, it might be best to keep your travels close to home. Fortunately, Chicago and its close-in vacation spots have a lot of entertainment to go around.

There was, for example, the short but sweet, highly entertaining run of ”Avenue Q” at the Cadillac Palace, with its adorable ”Sesame-type” Muppets singing the outrageous, but hilarious, ”Everyone’s a Little Bit Racist,” ”It Sucks to Be Me,” and ”The Internet is for Porn,” with a touring company cast every bit as good as that in the original Broadway production.

Then there is ”Musical Mondays at Drury Lane,” at the Drury Lane Theatre Water Tower Place, which recently featured a showcase of the ”best of Chicago cabaret” in a tribute to Rosemary Clooney, ”Everything’s Coming Up Rosie,” with Bob Moreen, musical director, and Suzanne Petri and Bradford Thacker hosting local stars, including Paul Marinaro, Nan Mason, Heather Moran, and Kat Taylor.

But the musical I would definitely recommend is ”The Hunchback of Notre Dame” currently at the Bailiwick Theatre, 1229 W. Belmont St., based on Victor Hugo’s classic about Quasimodo, the deformed bell-ringer of Notre Dame Cathedral, and his tragic love for the gypsy dancing girl, Esmeralda. Set in the Paris of 1462, the well-known tale has been brilliantly adapted by rock legend, Dennis De Young, who has written the book, music, and lyrics.

This is a ”no-frills” production with few props or elegant scenery, but you would never know from the skillful manner in which Director David Zak dramatically moves the characters back-and-forth across the stage, up to a second level, up and down the steps, through the aisles, and up to the balcony where Quasimodo finds comfort in the company of his ”friends” the bells.

George Andrew Wolff, who made us laugh in Chicago’s production of ”The 25th Annual Putnam County Spelling Bee” as the ridiculous contestant who had to spell with his foot, does a dramatic about-face, with a powerful voice and a heart-wrenching performance as Quasimodo. Dana Tretta, as the saucy, spirited Esmeralda, gives another stunning performance, following her recent success as Sally Bowles in ”Cabaret.” Jeremy Rill portrays the tragic, beleaguered priest, Frollo, who cannot resist the temptation of the gypsy girl.

All of the voices are wonderful and seem to have been selected in ”casting heaven,” including those of the supporting cast. There’s James Rank as the handsome, but stiff-necked Captain Phoebus; Michael Harchar as his despicable military aide; Jeffrey A. Ward as the King of the Gypsies; and Liz Pazik as Mahiette, the gypsy woman who befriends Esmeralda and narrates both the prologue and epilogue.

However, the real star of this production has to be the beautiful and lyrical music of Dennis De Young. De Young has managed to capture all the brilliance and excitement of his Styx rock hits ”Lady,” ”Come Sail Away,” and ”Mr. Roboto,” and blended it into 25 musical numbers with a modern beat and a classic Broadway sound.

Beginning with the poignant ”Who Will Love This Child?” sung by the priest Frollo when the deformed infant is left at the doorstep of his church, through ”In My Silence,” where Quasimodo cries out in despair because of his inability to communicate, ”While There’s Still Time,” a love song on the eve of battle, to the grand love ballad and signature piece, ”With Every Heart Beat,” each song is lavishly arranged and backed by a small band of incomparable electronic musicians led by a very animated and engaging Keith Dworkin on keyboard. Any one of these songs could easily be released as a single recording and move to the top of the charts.

I was particularly impressed by the haunting and compelling ”This I Pray,” which is sung by Esmeralda, who has been imprisoned as a result of prejudice and is awaiting her execution: ”There will come a time when we won’t live in fear any more, There’ll be no talk of hatred. No prejudice to tear us apart. No sadness or pain in our heart. Only peace. Only joy. Only love will remain to keep us and guide us each day, This I pray.”

Thank you, Dennis. Sail on!

I rest my case.

Verdict:
Hunchback of Notre Dame — Four Gavels

Around the water cooler — Sailing with Alice O. Martin

Each week I will highlight a different case or legal happening, and solicit your thoughts on the impact of it in the legal community.

Alice O. Martin has been on water since about age 3.

Her father owned many powerboats that they used on Lake Erie. By the time she was a teen she was joining racing boat crews.

Now a partner and co-chair of the life sciences practice group at Barnes & Thornburg, she’s been racing in Chicago since about 1976 or 1977.

It’s not unusual for her to be one of only a small group of female skippers competing in a boat race. Her gender often makes her more noticeable, which can be good and bad. If she makes a mistake, then everyone notices it, she said.

“More women are getting involved at the crew level, and on some smaller boats,” she said. “But it is still basically a man’s sport. It’s a little rough. You have to be a little bit more aggressive, and a bit more thick-skinned.”

She plans to compete in the 100th Race to Mackinac, which begin July 19 off of the Chicago Harbor Lighthouse. With the largest fleet in race history, more than 400 crafts will make the 333-mile trek. The race centennial will be celebrated on Mackinac Island with a gala fireworks display on July 22.

She’s competed in about 15 Macs. She plans to do most of the driving of her boat, “Painkiller4,” which is named after a drink that uses Pusser’s rum, orange juice, pineapple juice, cream of coconut, and hallucinogenic nutmeg.

Her crew for the Mac will consist of nine people and herself.  Her crew will alternate shifts in four-hour increments, unless the weather gets bad.

“It’s very challenging,” she said about racing. “It’s one of the places where it is you against the elements. It promotes teamwork. I’ve met a lot of interesting crews, and it’s very physically demanding. It keeps you in good shape. And it’s unpredictable, so it’s a good problem-solving activity.”

Sailing helps her connect with some of her clients, Martin said. She’s brought some clients out on her boat for social sails, and a few clients have been on past crews.

Clients tend to trust her lawyering skills even more after they see her on her boat maneuvering through potentially challenging situations, she said.

Her boat at the Mac may be easy to see because it has a very large, pink, shiny wheel; and she sometimes wears a pink flamingo hat and pink boa.

“We do win races,” she said. “We are serious about the races, but when we finish we like to have a lot of fun.”

Around the water cooler — Q & A with Dave Glatz

Each week we will pose these three questions to different lawyers in the legal community.

This week we talk with Dave Glatz, a partner at Bell, Boyd & Lloyd, who has been practicing almost 10 years.

– What do you find the most interesting about your practice?

The variety. Every day it’s something new. The intellectual challenge is constant.

— What makes a good lawyer?

Technical knowledge is always necessary, but I think communications skills, attention to detail, and commitment to excellence are key.

– What is the biggest legal news right now and what is its impact?

In my area of practice - M & A and Securities - the economy is the big story.

Deal flow has slowed considerably but the middle market still has some life. The credit markets have tightened up, this has led to a decrease in financing for private equity firms on the buy side and has caused investment companies and mutual fund complexes to find alternative sources of leverage financing for their funds.

« Previous Page — Next Page »