Chicago Lawyer's 2010 Person of the Year: Thomas R. Fitzgerald

Photo by Ben Speckmann
Photo by Ben Speckmann
December 2010
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By Amanda Robert

A few days before the start of the Illinois Supreme Court's November term, Thomas R. Fitzgerald reflected on "Audi alteram partem," the Latin phrase inscribed on the otherwise-bare back wall of the high court's courtroom in Chicago.

He regarded its meaning with reverence and conviction, explaining that it serves as a constant reminder to the seven justices who see it clearly from their place on the bench. These justices have a job to do, and that job, first and foremost, is to "hear the other side," he said.

Fitzgerald, 69, read these words and followed their lead for the past 10 years - and throughout his whole career. He joined the Illinois Supreme Court in 2000 and became its chief justice in 2008. He planned to run for a second 10-year term, but announced in September that he had been diagnosed with Parkinson's disease and retired in October.

His sudden retirement shocked and saddened his friends and colleagues who recognize him as an outstanding justice with an unwavering respect for the law.

"He was willing to not be pigeonholed or typecast in how he would rule," said James Thompson, former governor and current senior chairman and partner at Winston & Strawn. "He would look at a question and decide what was fair and appropriate, and follow the law regardless of what people would perceive as political pressures or pressures from one segment of the bar or another. He called them right down the middle, and a lot of lawyers appreciated that."

"He's a very down-to-earth person and a very kind person," said Joe Power, a personal-injury lawyer and name partner at Power Rogers & Smith, who has known Fitzgerald since his early days as a prosecutor in the 1970s. "However, when he's in court, you can't count on a personal relationship, because he's going to decide the case on the issues."

Fitzgerald also impressed and inspired his fellow Supreme Court justices, who considered him their gracious, evenhanded leader.

"There would be times we'd have spirited discussions, arguments, but it seemed he would make a point of saying, 'you're still my friend, I respect your decision, but I don't agree with it,'" said Justice Lloyd A. Karmeier. "We weren't always on the same side of things, but we all felt free to express our opinions and to be heard. He made sure that happened during his time as chief."

For these reasons, as well as for countless others, Fitzgerald is named Chicago Lawyer's 2010 Person of the Year.

Recognized often for his humility, Fitzgerald admitted that he can only guess why so many lawyers and judges of different stripes supported him throughout his career.

"I believe that if you treat people with respect and you make that a goal for anybody who appears in a courtroom, even if you rule against them, in most instances they're going to be okay with it," he said. "It is my belief that if people do like me, I hope it's because I was respectful in any meeting I had with them."

Fitzgerald recommended upon his retirement that the Supreme Court appoint Appellate Justice Mary Jane Theis to take his place. He swore in the judge in late October.

Fitzgerald met Theis when he first campaigned for the Cook County Circuit Court in 1976. He pointed out that both of their fathers were judges.

"What made that important to him and to me was that both of us learned early in our lives that our fathers were treated with great respect," Theis said. "People stood up for them, they were called 'your honor.'

"But we also learned that for the man, our father, the honor was not theirs. The honor was the opportunity to be a judge and that people had placed trust in them."

Theis and others in the legal community who learned from Fitzgerald said they came to regard him as a "judge's judge."

"I believe because of his history, he has made improvement of the judiciary his No. 1 focus," Theis said. "That's how he has influenced me through all of those years, and not just me, but whole generations of judges who have seen his commitment to restoring the people's confidence in the judiciary."

Leading the way

Born in 1941, Fitzgerald grew up on the South Side of Chicago. He considered his childhood traditional, punctuated by his education at Leo Catholic High School and his love of the Chicago White Sox.

Since his father served as a circuit court judge, he abided by more rules than most of his friends, but he also learned the importance of being a good person.

"He was a wonderful man and a great role model for things that have become very important in my life - integrity, hard work and honesty," Fitzgerald said. "Those were the kinds of things that were demanded of my father. I'll thank him forever for that."

He attended Loyola University Chicago and enlisted in the U.S. Navy. He returned home and enrolled in The John Marshall Law School, where he founded and served as associate editor of the school's law review. He graduated and was admitted to the bar in 1968.

Fitzgerald began his career in the Cook County state's attorney's office, where he met and made an impression on fellow prosecutor Nick Motherway.

Now a personal-injury lawyer and co-founder of Motherway & Napleton, Motherway described Fitzgerald as an aggressive trial lawyer who won trials with his knowledge of the law and his ability to reach the jury.

"You can be a brilliant lawyer, but if you can't connect with the jury, you won't be successful," Motherway said. "Tom could always do that. He's always connected with whatever group of people he's dealing with, which would include a jury."

Fitzgerald was elected to the Cook County Circuit Court in 1976. He became the youngest judge to sit on the bench, a feat that didn't surprise Motherway.

"He brought his intelligence and knowledge of the law from the state's attorney's office on to the bench," Motherway said. "He also always had the trait of having integrity to the 'nth' degree. He brought that with him on to the bench.

"He had the temperament and the integrity and the knowledge that told everyone that knew him that he was going to be a great judge," he said.

Fitzgerald served as a trial judge in Cook County Criminal Court until 1987, when he was assigned as the supervising judge in charge of cleaning up Traffic Court in the wake of Operation Greylord.

The almost four-year federal investigation into Cook County courts convicted nearly 100 people, including judges and attorneys, for taking bribes and fixing cases.

The scandal deeply affected Fitzgerald, who said "the tragedy" should be shared with others, so they remember it happened and guard against it ever happening again. He appointed himself as one who will do the reminding.

"The amazing thing about it is that people who were involved in it lost everything," Fitzgerald said. "They lost their liberty, they lost their money, they lost their freedom, they lost their father's good name - which I always think of as being the most valuable thing of all.

"Outwardly, they were not bad people," he said. "Some of them were charming and nice people. You wonder how they could ever make that choice. The gain that they had from the wrongdoing was miniscule."

Fitzgerald was joined in Traffic Court by 13 brand-new judges who also came in prepared to change the system. They achieved success, because they started fresh, unaffected by the Greylord culture of corruption in the courts, he said.

"I later learned that they referred to themselves as 'Fitz's 13,' " he said. "I felt a degree of pride in that, because these were really special people."

Fitzgerald said he knew the only way to clean up the court was to follow the law.

"In a sense, it was easy, the roadmap was already there," he said. "Call the witness, listen to what the witness has to say, make the fair decision in the evidence of the case. If you have to impose some penalty, do that and then call the next case. Do them all the same way.

"If you do that, if you trust the law and follow the evidence, you're probably going to do pretty good."

Fitzgerald introduced several initiatives in Traffic Court, including informing prosecutors that cases would be dismissed for want of prosecution if no attorney or police witness was present. He implemented a number of other initiatives, such as an evening Narcotics Court, after returning to the criminal division as presiding judge in 1989.

Theis tried cases in front of him early in her career as a public defender. She recognized his reputation as a top judge and knew she needed to be well-prepared for court, she said. She was also struck by his intellectual curiosity, and his interest in the intersection of the law and history.

"I used to think he was conducting a salon, where he would want to talk about ideas and books," she said. "That was somewhat different from other judges, and interesting and stimulating to a young lawyer."

Despite the "old boys' club" atmosphere in the Criminal Division, Theis said Fitzgerald championed women lawyers and judges. He encouraged her to apply for an associate judge position, and then, to become a circuit court judge.

"By the time he left 26th and California to come to the Supreme Court, he had really changed the institutional culture there," Theis said.

When Fitzgerald ran as a Democratic candidate for the Supreme Court in 2000, he received the endorsement of both newspapers and political parties. Judges and lawyers on both sides of the aisle supported his move to the high court.

Thompson first met Fitzgerald when he invited him to Winston & Strawn to discuss his candidacy to the Supreme Court. He soon learned that Fitzgerald wanted both a Republican and a Democrat to co-chair the announcement of his campaign. Thompson became his Republican, and Dawn Clark Netsch became his Democrat.

"The two of us presented him to the world," Thompson said. "When you've got a judge who is widely regarded as fair and hardworking, they stand out when they have that appreciation from not only the legal community, but also from the political community.

"Every once in a while, an outstanding jurist comes along, and people know about it," he said.

Supreme recognition

In his nearly 10-year career on the Supreme Court, Fitzgerald sparked significant changes in the development of the law and the administration of justice.

He first made his mark as an advocate of death penalty reform. Shortly before he joined the high court, he was appointed chairman of its newly formed Special Supreme Court Committee on Capital Cases.

Under his leadership, a committee of 17 judges considered the causes of various failings in capital cases.

In many of these cases, Fitzgerald and other members concluded that attorneys committed errors that led to setting aside convictions.

"Unlike Greylord, they didn't do anything that was illegal or reprehensible as a matter of law," Fitzgerald said. "The law has gotten very complicated in the last several years, and forensics has played a much bigger part in the present criminal law jurisprudence.

"If you don't understand how those things work, or the science of it, you run the risk of making mistakes in the case that has that kind of evidence."

The committee decided that more experienced attorneys needed to get involved in capital cases to ensure a fair trial for accused offenders. They recommended the creation of the Capital Litigation Trial Bar to provide better training to both attorneys and judges, along with other capital case rules that were later approved by the full Supreme Court.

When asked for his personal feelings on death penalty reform, Fitzgerald said he avoids rendering his own opinion, and instead, follows the law.

"The legislature in this state has provided laws that permit the death penalty in certain cases," Fitzgerald said. "As a judge, it was my responsibility to do the best I could with the legislation that I had. I look at the cases that we've done, and we've done very good in some very difficult cases. We'll deal with it as it comes to us."

During his tenure on the Supreme Court, Fitzgerald introduced and implemented a variety of other reforms, including working with Justice Rita B. Garman to establish a Special Committee on Child Custody Issues. The pair wanted to keep children's cases from languishing in the trial and appellate courts and induced the court to adopt a number of new rules to fulfill that mission.

Garman met Fitzgerald when she was an associate judge and he was a circuit court judge. He still exhibits all of the same traits today as he did then, she said.

"He has always been well-prepared, very respectful of the opinions and views of his colleagues, but very strong in his views," she said. "He has a very reasoned basis for taking the various positions that he's taken. He always puts the needs of the court ahead of his own personal needs or preferences."

Many lawyers who have argued before Fitzgerald in the Supreme Court also said that he was prepared and committed to understanding the issues in their cases.

Illinois Solicitor General Michael Scodro argued four cases in front of Fitzgerald, but also witnessed scores of other cases that the attorney general's office brought to the high court. He quickly learned that Fitzgerald asked insightful, incisive questions to reach the heart of their disputes, he said.

"He set a tremendous example for judges and advocates alike," Scodro said. "His open-mindedness, his gentility, his respect for both sides of any argument and his commitment to preparation for every case should serve as a long-standing example of how judges and lawyers should approach their profession."

In the past several years, Fitzgerald worked to identify better ways of delivering free legal services to veterans and to improve the rehabilitation of accused offenders with mental-health issues. He announced initiatives to improve the judiciary, including an expanded performance evaluation program and mentoring program, and succeeded in convincing the state's leaders to give $36 million to probationary services.

As chief justice, Fitzgerald presided over the impeachment trial of former Gov. Rod R. Blagojevich in the Illinois Senate in January 2009. He called the trial the most challenging of his career, especially since the governor decided not to appear.

"It was essential that people who watched those proceedings believed that regardless of how the governor chose to act, the Senate and, I hope, myself did our best to give him a fair hearing," Fitzgerald said. "It seemed to me that we did the best we could."

Illinois Senate President John Cullerton and the legislature worked with Fitzgerald on developing rules to conduct the impeachment trial. Cullerton and other legislators praised Fitzgerald for his success in setting a precedent and conducting the trial in a serious, unbiased manner.

"He just did a fantastic job in bringing the dignity of his position to the proceedings," Cullerton said. "People realized we took it seriously even though the governor was unpopular. It was really well done - he's a real classy guy."

Fitzgerald accomplished his final goal on the Supreme Court by codifying the state's law of evidence. He convened a Special Committee on Illinois Evidence, which began working in November 2008 to compile the body of evidentiary law into a single source. The Supreme Court approved and released these Illinois Rules of Evidence in October.

Fitzgerald, who taught trial advocacy at both The John Marshall Law School and Chicago-Kent College of Law, knew from experience that a code of evidence could help lawyers and judges prepare for trial.

"That was one of the things I wanted to accomplish as chief justice, and we did it in two years," he said. "There was this body of rules that, rather than contained in 50 different law books, are now in one book. I think that's going to be a big help to the lawyers and judges in this state."

Making changes

Before Fitzgerald joined the Supreme Court, he heard people refer to members of the high court as brothers and sisters. He never thought much about it, he said; he considered it one of those things that people just say.

"The thing that I learned was that it feels like a family," he said. "It has all the problems that a family has, and yet, it is a family. We had many significant disagreements on the law, and yet, we've been able during the last 10 years that I've been involved to make certain that the fact that you have these disagreements doesn't mean that you have to be disagreeable. I'm pretty proud of our court for having done that."

After Fitzgerald was diagnosed with Parkinson's disease, he shared with his fellow justices his doubts about remaining on the Supreme Court. He started taking medicine and believed that he could handle his job, but he also feared attracting negative attention, he said.

"I felt in the interest of the court, and the interest of the litigants, that was the best thing to do, that other people could be the judge," he said. "I just did it to protect the court from any damage or criticism."

Newly appointed Chief Justice Thomas L. Kilbride said even as the high court convened its November session, he expected Fitzgerald to walk into the conference room.

Kilbride and Fitzgerald joined the Supreme Court at the same time in 2000. As the "new kid on the block," Kilbride adopted the elder justice as his mentor and enjoyed taking afternoon walks with him, he said.

"I don't think you can find a better colleague in the court system than Tom Fitzgerald," Kilbride said. "He has a great intellect. He was an open person who was always gracious to me, willing to listen, willing to give advice. He always treated me with the utmost respect."

Fitzgerald's other fellow justices also admire him for his unique ability to bring both generosity and fortitude to the bench.

"He's our favorite storyteller, golf partner, dinner companion, confidante and sounding board," said Justice Robert R. Thomas. "He's a kind and gentle spirit who always looks for the best in both people and circumstance.

"Yet at the same time, he is a deeply serious lawyer and judge, who approached his job with a sobriety and wisdom that might be surprising to those who know him only outside the law."

Over the years, Fitzgerald also became well-known to the legal community for his perpetual faith in the Chicago White Sox. As a founding member of the Nellie Fox Society, he helped propel the late 1959 American League Most Valuable Player into the Baseball Hall of Fame.

Fox appealed to Fitzgerald and his childhood friends, who played sandlot baseball with the second baseman's signature "bottle-barreled" bats, Fitzgerald said.

"Some of the ballplayers who were around at that time were tall and graceful," he said. "Nellie Fox was short and choppy, and yet, he almost never committed an error. He almost never struck out.

"He didn't look like the guy who was going to be the greatest athlete in the pack, but he was pretty close. For all of us that were challenged by shortness or anything like that, Nellie Fox was the guy to emulate."

Motherway, also a member of the Nellie Fox Society, started going to White Sox games with Fitzgerald 35 years ago. They share season tickets and always sit in section 135 at U.S. Cellular Field.

"I was a Sox fan a long time before I ever knew Tom, but we grew up as Sox fans on the South Side of Chicago, and it becomes part of your make-up," Motherway said. "He knows all of the nuances of baseball, so he can usually predict what will happen next. We trade predictions, and sometimes he's right, and sometimes he's not. That's one constant that's in our lives."

Fitzgerald has been married to his wife, Gayle, for 40 years. The couple has five children and seven grandchildren. While their plans for the future are evolving, Fitzgerald said he hopes to start teaching.

He plans to remain involved with the Supreme Court and reminds justices to remember their number.

"The number is four," he said. "You need to get four votes to get anything done."

Fitzgerald often offers these other words of wisdom to his friends and colleagues in the legal community:

"The state's attorney's office, when I was in it, had a familiar saying of describing how they should do their work, which was, do the right thing," he said.

"That's my advice."