Lawyers create a high-tech courtroom

By Olivia Clarke

David R. Barry, Jr. wanted to prove in a 2002 case that neurosurgeons and the hospital failed to properly treat his client’s cerebral aneurysm. His client may have looked completely healthy, but she experienced serious mental issues associated with the aneurism. She went from being an accomplished adult to possessing a mental state equivalent to a 10-year-old child, Barry said.

So Barry took the jury inside his client’s brain. He used computerized animation portrayed in a video to demonstrate to the jury how the bleeding affected the areas of her brain that control cognition and complex thinking.

The video used illustrations to show the different parts of the brain, highlighting each part and showing what functions each part controlled. It then showed where the aneurism occurred, and how those parts of the brain were affected by the aneurism.

”I think it was vital because the anatomy involved was so complicated,” said Barry, a partner at Corboy & Demetrio. ”In order for the jury to understand why the solution to the problem was relatively simple, they had to actually understand the anatomy.”

Most trial lawyers who handle complex or intricate cases now use technology in the courtroom to convey information about their case to a judge or jury. They find the technology helps them turn complex information into easy-to-digest ideas.

Although the cost can be daunting, law firm lawyers and corporate counsel say the expense sometimes doesn’t matter if it means a successful outcome.

”In the last five years, [using technology] has definitely become the rule rather than the exception,” Barry said. ”It is expensive, but often, particularly in more serious injury cases, it is an investment that is well worth making.”

Reaching the jury

Using technology in the courtroom is almost required today because society lives in a visual and technological age, said Paul Garry, a partner at Meckler Bulger & Tilson.

When Garry started practicing law he used to make paper copies of documents, but juries don’t want to deal with all that paper anymore.

As an employment law lawyer, he has used technology to present information during a trial.

For example, during a case involving a sexual harassment claim, he and his trial team tried to show what happened by creating a timeline PowerPoint presentation. They could click on specific areas of the story, and provide more detail. It helped the jury follow the story more easily, he said.

If they had created a timeline on a poster board, the jury may have skipped ahead in the story, and stopped paying attention to the area they were addressing, he said.

”Juries are kind of expecting you to present things in an electronic format,” Garry said. ”What you try to do is get your message across in ways that are easy and understandable.”

Chris Griesmeyer, a litigation partner at Levenfeld Pearlstein, said he has used technology during trials, but a recent two-week federal trial marked the first time he used technology throughout the entire trial to digitize documents and exhibits for all the witnesses.

Griesmeyer believed this technology would help the witnesses better describe the complex documents. With the help of an outside vendor, the trial team figured out what to use.

The technology allowed them to pop up documents on a screen, while a consultant highlighted and enlarged the sections of the document being addressed.

”It was absolutely wonderful. I will never do another trial without using this technology,” Griesmeyer said. ”[The vendor] uploaded all our documents, and all our exhibits. And whenever we needed to refer to an exhibit, instead of fumbling through an exhibit book, it showed up on the screen.

”It really made the documents come to life. Another benefit is, all eyes in the courtroom are literally on the same page.”

More lawyers are figuring out that if they use technology earlier in the process they stand a better chance of moving a case toward a settlement, said Mike Rogers, an adjunct professor at Chicago-Kent College of Law who teaches litigation technology.

Rogers teaches his students that if they understand how to use technology in the courtroom they will develop a competitive edge over those who cannot.

”I think more and more schools are definitely teaching it,” said Rogers, president of Ronin Consulting, which helps lawyers organize and present their cases technologically. ”We are teaching them a methodology for what works in a courtroom, what is acceptable, and what is not. You are not just there to create death by PowerPoint and bore people.”

David Bernick, a Kirkland & Ellis litigation partner, said he’s been using some type of technology during his trials for the past 25 years. He’s experienced the progression from overhead transparencies and flip charts to computerized 3-D graphics and intricate animation.

In the ’90s, lawyers would load thousands of documents into a computer so they could show each one on a screen, but that was a waste of money, he said.

He likes having the freedom to talk to a jury without the burden of standing behind a podium and shuffling through a stack of papers. Bernick often uses an ELMO legal presenter, which projects on a screen an enlarged image of an exhibit or document.

”My advice is really that technology should be the tail, not the dog,” he said. ”The basic rules of persuasion at trial and, likewise, the basic rules of being efficient in litigation are really the touchstones for everything.”

In-house perspective

Michelle Browdy, a former Kirkland trial lawyer and now vice president and assistant general counsel for IBM, said she’s consistently seen the use of technology in the courtroom on big-ticket litigation — regardless of the size of the city.

Some companies specialize in courtroom technology, and some large firms have staffs in-house that help with the technology, Browdy said. Technology can help make a message clearer, she said.

”If they can’t explain it in the courtroom in a way that the jury or judges understand it, all their money is wasted,” Browdy said. ”That is not to say that you have to have the best and the fanciest systems.”

Sarah Taylor, chief counsel, intellectual property at Robert Bosch LLC, said her company’s patent infringement cases do not typically go to trial, but the company has used technology on those cases that make it into a courtroom.

The technology sometimes makes a trial more cost-effective because trial teams no longer need to make copies of every possible document, Taylor said.

When she was a patent litigator, they used foam boards to present information, but those were expensive. Tools like PowerPoint and ELMO often save money.

”[Technology] makes it easier to communicate with the jury,” Taylor said. ”Everyone can see the document discussed by the witness on one screen. I think it focuses everyone’s attention upward as opposed to them looking down at the paper document, or not seeing the document at all.”

Bell, Boyd & Lloyd invited corporate counsel to a recent forum called, ”Innovative Strategies for the Electronic Courtroom.”

Irving Levinson, a Bell Boyd partner who spoke at the forum, said cases are often won or lost on big-picture themes. The electronic courtroom permits lawyers to refine and present large-case themes in a dramatic fashion.

Levinson said he’s never failed to persuade a reluctant judge to allow technology in the courtroom because he or she is usually curious about how it will work.

Some cases may not benefit from technology, he said. If a case, for example, has less than 20 exhibits and is only a three-day trial — it might be unnecessary.

”The advice that I would give to corporate counsel is to wrap their arms around it and become the captain of their destiny by challenging their retained lawyers to become comfortable with the technology and be very hands-on,” Levinson said. ”It changes the practice of being a trial lawyer in that it allows you to be far more creative, and I find that immensely enjoyable.”

Most people are predominantly visual learners, and the technology allows lawyers to grab the judge and jury’s attention and helps them retain information more effectively, said Daniel Wolfe, director of jury consulting at Kroll Ontrack/TrialGraphix, a trial consulting and services firm. He was also a member of the forum’s panel.

In the future there will be an even greater use of interactive technology, he said.

A few jurisdictions have experimented with virtual technology. Juries, for example, have worn virtual reality helmets so they could see, for example, a 3-D recreation of an accident, Wolfe said.

”I think first and foremost the most important reason lawyers should consider using it is because jurors expect, if not demand, that this type of technology is used, because their normal, daily routines incorporate this type of technology,” Wolfe said. ”Generation X and Generation Y were born and raised with this technology.”

Weighing the cost

Technology in the courtroom often comes with a large price tag, said Joseph Reagen, assistant general counsel/intellectual property for Baxter Healthcare Corp.

Reagen said it’s not unusual to spend several hundred thousand dollars for the technology and a technology consultant. But he finds it worthwhile when it explains complex information in a simple, easy-to-understand way.

For example, a few years ago Baxter’s trial team and an outside consultant developed a 19-minute DVD that cost over $100,000 to produce. But in those 19 minutes it educated the judge on the patent in the case, and the key terms associated with it.

”It turned out to be a justified expense that was very successful,” he said. ”On the other hand, the other side had a 110-page PowerPoint that the judge lost patience with by the fifth slide, and they weren’t able to present it. We quickly accomplished our objective, and it helped us prevail in the hearing.”

Reagen said the expenses often grow, even with a tightly controlled budget. But with millions of dollars sometime at stake, it becomes difficult to balk at spending hundreds of thousands on a technical consultant whose expertise may positively impact the case.

”I think, as a general rule, it is making litigation more expensive,” he said. ”In the last few years the cost of taking a case through trial has grown significantly, and a lot of that is due to consultants — e-discovery consultants and technology consultants.

”It adds a whole new layer. I don’t see a way to not use those resources.”

Costs can be broken down into three components, said Wolfe, from Kroll Ontrack/ TrialGraphix.

One of the largest components is often the cost of hardware, such as equipment rental and the use of items like projection systems, laptops, and screens.

”[But], with more and more of the courtrooms becoming tech-ready the clients don’t have to incur those costs,” Wolfe said.

The second component is the cost of production, such as scanning, imaging documents, and creating presentation material. And the third component is the professional time or the use of a consultant or team to help run the technology, he said.

Garry, from Meckler Bulger & Tilson, said general counsel should ask their outside counsel for a trial game plan so they know what costs they are approving.

”Then before authorizing it, make sure it makes sense,” Garry said. ”Sometimes lawyers fall in love with their technology.”

The trial team should ask themselves, he said, ”Do I understand what I am trying to show?”

Getting the graphics side of a case under control early on will help with mediation and summary judgment, and will keep the overall costs down, said Mike Abernathy, chair of Bell Boyd’s intellectual property department.

”Where graphics tend to get completely out of control is when trial counsel says, ‘Oops, we are going to trial now. I must figure out how to demonstrate this case,’ ” he said.

A good vendor will give a realistic quote and break down the expenses, said Griesmeyer, from Levenfeld Pearlstein. Clients may experience sticker shock when they learn the cost, but corporate clients usually understand that trials can be expensive.

”When they actually show up at the trial,” he said, ”and see what the money is going toward, they are converts.”

Pros and cons

Lawyers sometimes make the mistake of leaving the technology part of a case to the last minute and not practicing before they use it, said Rogers, from Chicago-Kent.

”I think that if you use technology for technology’s sake, you can look overly flashy,” Rogers said. ”It can become distracting if you don’t have a really good reason for using it.”

Lawyers need to manage their expectations and not become so enamored by the technology that they lose sight of such limitations as the budget, said Wolfe, from Kroll Ontrack/ TrialGraphix. Technology is simply another medium to persuade the jury.

Lawyers cannot forget the importance of communicating their message. They need to learn how to use the technology effectively because a jury may translate technological incompetence as legal incompetence, Wolfe said.

Lawyers should also consider their venue, because some venues are not as accustomed to using technology. And consider how a judge will react because some are big fans and others are not, he said.

”Technology can be overused and people become desensitized to it, whether the judge or the jury,” Wolfe said. ”It is not right for every case, and it’s not right for every lawyer. And it is not that you have to use it in every case to be successful.”

Levinson, from Bell Boyd, said many lawyers fear trying technology because they don’t want to give over control of their case, and do not want to create unnecessary work. They also fear that the technology will not work, he said.

”I secretly hope they continue to be afraid of it because it gives me an advantage,” Levinson said. ”Truthfully, the technology is now so simplified.”

A big divide exists between those lawyers who control their technology in the courtroom, and those who let a consultant or technician push the buttons, Levinson said.

Those lawyers who run the technology themselves often instill confidence in the jury and show that they are in control of their case, Levinson said. By controlling the technology, a lawyer can control the pace of the trial.

Lawyers may use technology and assume that, because the jurors see it, it is in the record, said Abernathy, also from Bell Boyd. But that’s not always true.

For example, during a trial two years ago, his opponent made critical mistakes when he failed to put some of the information he shared via technology in the record. Abernathy said there was no oral testimony or written record reflecting that information.

”In the post-trial briefing, they really got in a lot of trouble,” he said. ”They didn’t have a record to support their assertions … You think that because the jurors are learning the information that the record is complete. It is an easy mistake to make.

”That can be devastating and certainly even more devastating when you are on appeal and looking for evidence to support a position,” he said.

Abernathy said he also sees some lawyers using technology too much, in lieu of strong witnesses and strong advocacy. The witness sometimes gets diluted or drowned out because of too many exhibits and too much technology, he said.

”I think people often get so into the technology that they lose sight at the end of the day of what really counts — witness credibility,” he said.

Using electronic demonstratives when cross-examining a witness can be challenging, said Bernick, from Kirkland, because the witness doesn’t need to accept what was prepared.

”Typically, on cross-examination, I would never use prepared graphics,” Bernick said. ”I would prepare the graphic and think about how to draw it myself.

”On cross-examination, I used to go through pad after pad of flip charts,” he said. ”The jury sees your hand, and the pen becomes your punctuation.”

Garry, from Meckler Bulger & Tilson, said lawyers must ask if the technology brings added value to the case.

He sometimes prepares the technology, and then narrows down the number of tools he will use as he gets closer to the trial. He may vet the technology during mock juries, and in consultation with other lawyers in his firm.

General counsel must consider the courtroom technology, and be careful that it does not portray their company as too slick — especially in situations where it’s a company against an individual, Garry said.

”We are past the point where people are debating, ‘is this something we have to use?”’ he said. ”The issue is how to effectively use it.”

Financial Services: Prudent practices for fiduciary advisers

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

The Financial Planning Association (FPA) has published a handbook containing practice guidelines for ”fiduciary advisers,” as that term is defined in the Pension Protection Act of 2006.

The FPA states that the handbook ”represents a standard of excellence for fiduciary advisers.” As such, it is a must-read for anyone who provides investment advice to pension plan participants or beneficiaries with respect to plan assets for fees or other compensation, including those fiduciary advisers employed by trust departments, insurance companies, brokerage firms, registered investment advisers, and any agents or affiliates.

The handbook defines ”prudent, or best, practices,” and is organized under a four-step investment management process. The four steps are: (1) organize; (2) formalize; (3) implement; and (4) monitor. For each practice, there are criteria that define the scope or detail of each practice. Sometimes, a ‘’suggested procedure” is offered to demonstrate how a particular practice should be implemented.

Let’s examine the more important practices, criteria, and suggested procedures under the four-step investment management process.

Under the first step (Organize), Practice A-1.2, investment advice must be in accordance with applicable laws, trust documents, and written investment policy statements (IPS). Investment advice must reflect ”definitive goals and objectives with the participant and beneficiary that are consistent with the scope of the engagement.”

Likewise, Practice A-1.4 provides that the fiduciary adviser must adhere to the general fiduciary standards of loyalty and care under ERISA, the Pension Protection Act, and other applicable laws. Important guidance includes the fiduciary adviser’s reviewing his or her client agreement and IPS at least annually to ensure consistency with the client’s needs, having legal counsel review amendments to the client agreement and the ”eligible investment advice arrangement,” and conducting an independent audit to determine if the fiduciary adviser has any compliance deficiencies.

Under the second step (Formalize), Practice A-2.1 states that the fiduciary adviser will analyze investment options and review them with the client. The review should include discussing passive versus active investment strategies, as well as the risks of market timing. The review should include the advantages and disadvantages of investing in an employer stock fund, and should be documented.

Additionally, Practice A-2.2 provides that the fiduciary adviser should identify and document the investment time horizon for the client. This includes the ‘’sources, timing, distribution, and uses of the client’s current and future projected cash flows from the portfolio.” It also includes identifying and discussing whether there are sufficient liquid assets to meet emergencies.

After complying with Practice A-2.3 (identifying and discussing the client’s risk tolerance) and Practice A-2.4 (identifying, discussing and documenting the expected investment return needed to meet the client’s investment objectives), Practice A-2.5 suggests the procedure by which advisers should recommend particular asset classes for the client.

Finally, Practice A-2.6 states that the ”preparation and maintenance of a client’s investment policy statement (IPS) is one of the most critical functions performed by the fiduciary adviser, even if it is not stipulated by law or regulation.” The best practice recommends using an IPS because it sets forth the duties and responsibilities of all the parties; defines diversification and rebalancing guidelines; and defines the due diligence and monitoring criteria for selecting investment options within the plan.

Under the third step (Implement), Practice A-3.1 suggests that the fiduciary adviser assist the client in understanding the implementation process. Practice A-3.2 requires fiduciary advisers to comply with the ‘’safe harbor” provisions of the Pension Protection Act.

Under the fourth step (Monitor), fiduciary advisers are called upon to keep the client informed of material information. Practice A-4.1 obligates advisers to give periodic reports to clients that compare investment performance against an appropriate index or peer group and against the objectives of the IPS. A ”watch list” of underperforming investments is encouraged, and the fiduciary adviser should advise the client how to rebalance investments in the portfolio.

Practice A-4.2 recommends that the fiduciary adviser periodically evaluate the qualitative and/or organizational changes of investment managers or other investment decision-makers which may affect the investment offerings within the plan, including corporate stock of the plan sponsor. Fiduciary advisers are expected to notify the client in writing of any unsatisfactory news regarding a material holding.

Finally, Practice A-4.3 requires the fees paid for advisory services to be reasonable and consistent with agreements and with all applicable laws. Fiduciary advisers must examine fees, and also must compare them periodically to industry peer groups and/or benchmarks.

As one can see, the FPA’s new handbook, ”Prudent Practices for Fiduciary Advisers” is a laudable effort to implement best practice standards in this important area of investing.

Clifford’s Notes: Zealous advocacy and civility

By Robert A. Clifford
Clifford Law Offices

The perception of lawyers certainly is impacted by attorneys’ conduct in a public courtroom. It seems, however, that it is more often behind closed doors, such as in depositions, that the conduct of lawyers can be called into question.

Take the recent case of Reed v. Advocate Health Care, No. 06 C 3337 (N.D. Ill., decided Jan. 17, 2008). The defense lawyer was charged with having ”improperly coached” two employees of the company ”during the course of the deposition when he became afraid that they would not follow their rehearsed scripts.” Plaintiff’s counsel also complained that opposing counsel supplied the witness with a copy of a law review article ”containing a road map for the defense to win this very case.”

In his decision, U.S. District Judge John F. Grady admonished both sides, stating that they must comply with the requirement of Rule 37.2 to ”meet and confer” before filing discovery motions. His decision then took an interesting turn.

He found that the charges of incivility and lack of cooperation applied more to the lawyer who brought the motion for sanctions. After quoting at length from the transcript of the plaintiff’s lawyer’s ”inartful questions,” the judge found that it was plaintiff’s counsel who engaged in ”overheated rhetoric and unfounded allegations.” Judge Grady’s decision demonstrates that such conduct would not be tolerated.

”[The lawyer’s] conduct persuades us that he either has no concept of the appropriate role of an attorney [footnote omitted] or that he is unable to conform his behavior to the standards of the profession.”

He ruled that the plaintiff’s attorney could reopen the depositions of two defense witnesses for an additional hour for the limited purpose of cross-examining them on the documents they used to refresh their recollections, but a different attorney from the same firm would participate in the depositions.

It is a shame when uncooperative behavior between opposing counsel escalates outside of court to the point where it must be brought before the court to take up its time and resources. The civility of lawyers has always been a concern of mine, not only having witnessed some intolerable behavior by trial bar colleagues but also in the declining public perception of lawyers.

Recently, my firm sponsored a continuing legal education seminar free of charge for hundreds of lawyers on ”The Ethics of Trial Work,” during which Northwestern University School of Law Professor Robert Burns presented the Rules of Professional Conduct through hypotheticals. He explained what is acceptable behavior and what is not, including a discussion of Illinois Rule of Professional Conduct 8.4(a)(5), which provides that no lawyer shall ”engage in conduct that is prejudicial to the administration of justice.”

In particular, Illinois Supreme Court Rule 219 addresses the consequences of refusing or failing to comply with discovery rules or orders, and allows the court to impose a number of sanctions, including that ”information obtained through abuse of discovery procedures be suppressed.” In making a distinction between misconduct during trial rather than during the discovery phase, a recent Illinois case found that Rule 219 is not a basis for sanctioning conduct that occurs at trial.

In Gonzalez v. Nissan North America, Inc., 369 Ill.App.3d 460, 860 N.E.2d 386 (1st Dist. 2006), the court dismissed the complaint as a sanction for plaintiff’s counsel’s attempt to refresh an expert’s recollection with documents that had been barred at trial because they had not been timely disclosed during discovery. The trial judge found the attorney’s use of stricken pages was a ”purposeful, wil[l]ful, and wanton violation of the court’s previous order.” Id., at 393.

On appeal, the court ruled that the sanction was too harsh and reversed and remanded the case for further proceedings to be conducted with a different judge and with suggestions for a lesser sanction. Despite a trial court’s being vested with wide discretionary powers regarding pretrial discovery, the court on appeal found that ”the sanctions imposed must be just and proportionate to the offense.” Id., at 390.

In reversing and remanding the dismissal of the case with prejudice, which should be a sanction ”of last resort,” the court embraced ”Illinois’ public policy of resolving complaints on their merits.” Id. The court examined the purpose of sanctions for failing to comply with discovery rules under the Illinois Supreme Court Rules, and that is ”to promote the flow of discovery and not to punish a dilatory or non-complying party.” Id., at 464 [citation omitted].

The court found that ”the underlying spirit of the system of civil justice is that controversies should be determined according to the substantive rights of the parties.” Id., at 471 [citation omitted].

As discovery becomes more sophisticated, particularly regarding electronic materials, courts will be taking a closer look at how lawyers respond to discovery requests to fulfill the letter as well as the spirit of the law.

I was glad to see that the Illinois Supreme Court mandated course work on ethics and professionalism each year. I think lawyers could use a refresher course to be reminded that even zealous advocacy doesn’t mean they can forget the rules.

Rin-Laures: A prodigy discovers a passion for patent law

By Stephanie Potter

Growing up, Lily Rin-Laures always thought she would become a doctor. After all, it was sort of the ”family business,” the occupation of her mother, her grandfathers, and several of her aunts and uncles. But while Rin-Laures did obtain a medical degree, she uses her skills in a very different way.

A partner at Marshall, Gerstein & Borun, she develops intellectual property strategies for clients with pharmaceutical inventions. She has worked on the patent portfolios for six FDA-approved drugs and has helped obtain patents for genetically modified plants.

Recently, she helped drug development company Marcadia Biotech Inc. negotiate a deal with Merck & Co. Inc. for the companies to collaborate on the development of therapies for the treatment of diabetes and obesity. Rin-Laures was involved in negotiating the intellectual property aspects of the deal and showcasing Marcadia’s intellectual property portfolio to Merck.

”What I like about doing this is that it gives me an opportunity to experience the best of science,” Rin-Laures said. ”I work with people who are world-class scientists, leaders in their field, on the cutting edge, and they are so enthusiastic about their work that they manage to convey that enthusiasm to you. When you work with them, it’s just very, very exciting.”

Rin-Laures, 41, has always liked an intellectual challenge. At 17, she was the youngest woman graduate from Johns Hopkins University, where she received a degree in chemistry. She was 13 when she started college and could have graduated sooner, but stayed an extra year so she would get the full liberal arts experience of taking classes like astronomy, Roman poetry, and the medieval legends of Robin Hood.

”It was a grand, eye-opening experience,” she said.

Rin-Laures was part of a pilot program through the Study of Mathematically Precocious Youth, a research group then at Johns Hopkins that identified gifted children by having them take the SATs, which she did at age 10.

Rin-Laures, who skipped second and third grade, was doing fourth-grade arithmetic in first grade. Later, she took summer programs through the Study of Mathematically Precocious Youth. One summer, she went from algebra to calculus by teaching herself through textbooks.

”It put me in an environment where I was constantly able to learn new things and was able to enjoy learning new things,” she said.

She said the experience helped to foster a love of learning that continues in her career.

”I have put myself in a position where I learn new things every day and I’m able to use the knowledge I have in new ways,” she said.

Rin-Laures said having completed medical school gave her a different perspective on the stress that typically accompanies the first semester of law school.

”The funny thing is, the first time I was actually in school with people my own age was law school,” Rin-Laures said.

As to which was more difficult, Rin-Laures said, ”medical school by far,” although she added that her perception might have been colored by having attended medical school first.

Selecting a new path

Rin-Laures has been with Marshall, Gerstein on-and-off since shortly after she graduated from Northwestern Medical School in 1988. She said she realized when it was time to apply for a residency that she did not want to pursue a career in medicine. She took a year off to figure out her future and applied for a job as a secretary at Marshall, Gerstein.

”They took a look at my resume and said, ‘You would be perfect as a technical specialist,”’ Rin-Laures recalled. In that position, she assisted attorneys with patent matters, and later became a patent agent. She found that she loved the work.

”I looked at what I was doing every day and the things that I could do if I did go to law school and become a lawyer and I thought, ‘This career is going to be challenging and interesting and different every day for the rest of my life,”’ she recalled. ”And that sounded like fun to me.”

Rin-Laures said biotechnology-related patent law is a growing, cutting-edge field. Patent law has traditionally been a male-dominated field, but that’s changing, she said now, the firm’s biotechnology group is made up of more women than men.

”Fortunately, I got interested in the field before it was fashionable to be a geek,” she said.

She praised retired partner Michael F. Borun as a mentor, but Borun said her work was spectacular from the start.

”If ever anyone didn’t need a mentor, it’s Lily,” Borun said. ”Her ability to handle a lot of different ideas in science, to become a mini-expert, foretold that she was going to become a great lawyer.”

When Rin-Laures went off to Harvard Law School, and then clerked with Judge S. Jay Plager at the Court of Appeals for the Federal Circuit, Borun was sure she would leave Chicago for a Washington, D.C., law firm.

”To our great surprise and happiness, she came back to us,” Borun said.

Rin-Laures speaks highly of her experience working for Plager. The Federal Circuit handles all patent-related appeals, which comprise a large portion of its docket. Rin-Laures said Plager taught her how to conduct a scholarly analysis of the issues in cases.

”You engage in debates about how the law should be,” Rin-Laures said. ”In our everyday jobs, generally, we are advocates for our clients. When you work for a judge, that’s the only time you can sit back and think, ‘How should the law really be?”’

She said she returned to Marshall, Gerstein for the chance to work with Borun, whom she described as ”one of the pioneers in biotech patent law.” She also praised the firm’s biotechnology group, and said she wanted to be part of a firm culture that ”values people for their talent and their teamwork, not for their billable hours.”

Borun said Rin-Laures has been a pioneer in balancing work and family. Rin-Laures was offered partnership when she was 31, while she was on maternity leave with her second child. She and her husband David, a scientist, now have three children ranging in age from 4 to 11 years old. Her husband is a stay-at-home dad, and Rin-Laures works part-time, which means she has a reduced workload compared to other partners.

Marshall, Gerstein managing partner Jeffrey S. Sharp said Rin-Laures excels at setting boundaries between her work and home life. Her biggest challenge, he said, is that Rin-Laures is so respected by clients that she could work more than full-time if she wanted.

”The most powerful feedback really is that clients ask for her,” Sharp said.Rin-Laures specializes in intellectual property strategies for drugs that have eventual medical uses and genetically modified plants. But she said she doesn’t limit herself to any particular technology.

”People come to us for our legal expertise and our technical background, our ability to learn new technologies,” she said. ”They come to us because we have the experience in filing patent applications on an invention, taking that look forward 10 years into the future to see how people will be using it, how their competitors will be designing around it, and how we can craft a strategy now that will make sure that they’re protected going forward.”

Using her skills

Rin-Laures said she enjoys the variety of her work. In addition to crafting patent claims, her responsibilities include giving clients advice about which of their competitors’ patent claims are valid, evaluating the strength of patent coverage for companies that her clients are considering purchasing, and showcasing her clients’ patent portfolios to potential buyers.

”It’s a fun job,” she said. ”We do sophisticated, high-level, complex work every day.”

One of Rin-Laures’ clients, Luisa Bigornia, a vice president at BioMarin Pharmaceutical, Inc., praised Rin-Laures for her work obtaining patents covering two of the company’s drugs, Naglazyme and Aldurazyme.

The drugs are used to treat Mucopolysaccharidoses, severe genetic disorders in which the body lacks an enzyme needed to break down chains of sugar in cells. The diseases lead to impaired mental development and organ function and can ultimately cause premature death.

”Lily’s firm helped to get claims that were very valuable to protecting our products,” Bigornia said.

Bigornia praised Rin-Laures’ technical knowledge, ability to keep up with changes in case law and her responsiveness to clients. Bigornia also knows Rin-Laures as a mentor and supervisor. She worked for Rin-Laures during Rin-Laures’ stint as general counsel at Hyseq Pharmaceuticals, Inc., now known as Nuvelo, Inc. Rin-Laures held that position from 2001 to 2002 while on leave from Marshall, Gerstein.

”As a person, she is very approachable, very willing to teach and share information,” Bigornia said.

Sharp seconded that, saying Rin-Laures is highly rated by the firm’s associates for her teaching and mentoring skills.

”Not every attorney who is a great attorney is a great teacher,” Sharp said.

Bigornia said Rin-Laures’ corporate experience ”helps her grasp how patents fit into the business’s goals and objectives.”

Rin-Laures agreed that her stint at Hyseq was invaluable to seeing how intellectual property fits into a company’s overall strategy.

”Intellectual property is just one part of what makes a company go,” she said. ”You have somebody making inventions; you have to have somebody developing inventions and somebody marketing that at the end of the day. I learned how [intellectual property] is used as a tool in the whole gamut of things a company does.”

She also credits Nuvelo’s president and CEO, Dr. Ted W. Love, for teaching her about the regulatory process for drugs. While at Hyseq, she handled not just patent issues, but a wide range of matters, from negotiating business deals to working on the settlement of litigation.

”I am a much better lawyer and a much better client service provider than I was before I went to work for a company,” Rin-Laures said. ”I understand how what we’re doing fits into the goals of the company and I know enough now to be able to ask the right questions.”

Love said Rin-Laures handled patent work for Hyseq before becoming general counsel for the company.

”We loved her so much and were so impressed with her that when we were considering general counsel, she was an obvious choice,” Love said.

He said Rin-Laures helped to restructure and focus the company’s patent strategy.

”I think fundamentally one of the challenges in patent law is to be strategic and thoughtful, because if you want to throw mud against the wall you can spend a lot of money and a lot of effort on patenting everything under the sun,” Love said.

He said he wasn’t surprised that Rin-Laures was able to go from handling intellectual property matters to handling the wide array of issues that face a general counsel.

Among her successes as general counsel, Love pointed to Rin-Laures’ involvement in the settlement of countersuits over patents between Hyseq and Affymetrix, a genetic research company. The settlement involved a joint venture between the two companies, Love said.

”Getting out of that morass was important to us, and to get out of it in a way that was a win-win was even better,” Love said.

Among her clients, Rin-Laures has represented Chromatin, Inc., a company that specializes in technology that allows engineered ”mini-chromosomes” to be introduced into plants so scientists can introduce multiple genes into a plant cell at one time, according to a news release announcing the patents.

One of the patents that Rin-Laures worked to obtain relates to the use of the mini-chromosome technology in all plants. The patent covers technology developed at the University of Chicago, and it has been exclusively licensed to Chromatin. In the release, Chromatin said the technology could be put to use in agricultural, pharmaceutical and biofuel projects.

Rin-Laures also represented InterMune, Inc. in obtaining patents covering Actimmune, a drug which is used to treat osteopetrosis, a disorder in which the bones thicken, and chronic granulomatous disease, a rare immune system disorder that causes frequent infections.

The world of patents

Rin-Laures said it is gratifying to work on patents involving medicines and medical treatment.

”At the end of the day, a lot of the scientists and doctors that I work with are motivated basically by the desire to improve the quality of people’s lives,” she said. ”They’re looking for new drugs to help people. To the extent some of that rubs off on me, I’m happy to be involved.”

One of the challenges of Rin-Laures’ job is keeping up with the changes in patent law, which Rin-Laures said she does with the help of her colleagues. She noted that the U.S. Supreme Court has shown a renewed interest in patent cases in recent years.

”When I first started working in this area, the Supreme Court hardly ever took a patent case,” Rin-Laures said. ”Now, they are taking multiple cases ever year and deciding them and changing law in the process.”

Much-debated patent reform legislation is now pending in the U.S. Senate, and Rin-Laures also noted that the U.S. Patent Office has proposed significant changes in how patent law applications are handled, which were to have taken effect Nov. 1. Those changes are on hold pending the resolution of a lawsuit challenging the new rules, brought by SmithKline Beecham Corp. in the Eastern District of Virginia.

The new rules would limit the number of patent claims an applicant could make in any one application, as well as the number of continuing applications, both of which are currently unlimited.

Claims identify the scope of the protection the applicant is seeking for an invention. Continuing applications allow inventors to pursue additional claims after filing an initial application. Rin-Laures said she, like many of her colleagues, opposes the limitations in the new rules.

Beyond practicing law

Despite the high-stakes nature of her work, friends from outside the legal profession describe Rin-Laures as mellow and low-key.

Linda Chin, an architect and fellow Sunday school teacher at Resurrection Lutheran Church, said Rin-Laures always seems to have a smile on her face.

”She’s a positive person and it’s reflected in her children,” Chin said. ”She has really good kids. She’s raised three smart, well-behaved, nice kids.”

Pamela L. Cox, a partner at Marshall, Gerstein, has seen many different sides of Rin-Laures.

Before attending law school, Cox was the associate director of technology transfer at Indiana University, where she oversaw the university’s eight-campus patent portfolio. Rin-Laures represented the university in those patent matters, and Cox was so impressed that she decided to interview with Marshall, Gerstein after law school, even though she had planned to stay in Indiana.

Later, the tables were turned on their relationship when Cox handled matters for Hyseq when Rin-Laures was general counsel.

Cox said that Rin-Laures is able to answer the questions clients didn’t even know they should be asking.

”There are a dime-a-dozen really smart patent attorneys who will do what you ask them to do, Cox said. ”She is so far above just doing what you ask her to do and thinks about, ‘How can I create value?’ ”

Cox said she enjoys working with Rin-Laures because of her enthusiasm for solving clients’ problems.

”She just really does sophisticated, exciting, big-picture thinking in a way that you get excited about the problems,” Cox said. ”It’s just fun to work through your day-to-day tasks with someone who inspires you to enjoy your problems.”

Cox praised Rin-Laures not only for her legal skills, but for her commitment to mentoring and increasing diversity within the firm, and for being an example of how attorneys can ”have careers that are noteworthy as well as real lives.

”She really is just as high-quality as they come and has been very diligent about leading a well-organized life,” Cox said. ”She’s set about being very purposeful about how she spends her time.”

Cox added that Rin-Laures has a secret weapon in achieving that balance.

”It doesn’t hurt that she’s brilliant,” Cox said.

Ethics: Does an attorney-client relationship exist?

By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson

The question of whether a person is or is not a client is crucial to the issue of what duties the lawyer owes to that person. Sometimes the status of the person as either a client or not a client in a given matter is obvious. Other times it is not so obvious. It is surprising how often lawyers are found liable to persons for malpractice when the lawyer never considered the plaintiff to be a client.

The attorney-client relationship is governed by principles of contract and agency law. The parties must consent to the formation of the relationship, but that consent can be bestowed either expressly or implicitly. As a general rule, for an attorney-client relationship to be formed, the client must manifest his authorization that the attorney act on his behalf, and the attorney must indicate his acceptance. In re Cordova, 96 CH 571, M.R. 16199 (Nov. 22, 1999).

When there is no explicit attorney-client relationship, such a relationship may be implied when the putative client believes that the attorney is representing him and the attorney acts as if he were representing the putative client. For certain limited purposes, an attorney-client relationship can be created at an initial interview between a prospective client and an attorney, even if the attorney does not ultimately represent the prospective client.

For example, in King v. King, 52 Ill. App. 3d 749, 367 N.E. 1358 (1977), a husband consulted with an attorney about his marital problems for less than one-half hour. During the conversation, he revealed information about his financial situation and his future plans. The husband did not retain the attorney and the attorney did not receive a fee. Two years later, the attorney represented the wife against the husband. Based on the husband’s consultation with the attorney, the court found that an attorney-client relationship had existed between them, at least for purposes of protecting confidences and secrets and for purposes of disqualification.

The court disqualified the attorney from representing the wife because of his previous consultation with the husband. Current Rule 1.9 of the Rules of Professional Conduct provides that a lawyer may not represent a client in a matter that is adverse to a prior client if the matter is the same or is substantially related to the matter in which the attorney had previously represented the prior client. In King, the court determined that an attorney-client relationship would be created by an initial consultation that did not result in representation, even if ”the attorney acquired no knowledge which could operate to the client’s disadvantage.”

The Illinois Appellate Court, in Herbes v. Graham, 180 Ill. App. 3d 692, 536 N.E.2d 164 (1989), explained:

”An attorney-client relationship need not be explicit or expressed and is not dependent on the amount of time the client spends with the attorney, the payment of fees or execution of a contract, the consent of the attorney, or the actual employment of the attorney. [citations omitted] Rather, the relationship can come into being during the initial contact between the layperson and the professional and appears to hinge on the client’s belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional legal advice.”

In Herbes, an attorney met with representatives of Libertyville Township to discuss his possible representation of the township in acquisition and condemnation proceedings, but ultimately declined to represent the township.

One year later, the attorney represented landowners in a lawsuit for injunctive relief to restrain the township from exercising its powers under the open-space program and challenging its constitutionality. The township filed a motion to disqualify the plaintiffs’ attorney, arguing that it had disclosed confidential information to him regarding the open-space program during the meeting the previous year.

In affirming the circuit court’s order, the appellate court found that an attorney-client relationship was formed during the township’s initial meeting with the attorney. The court in Herbes also rejected the attorney’s argument that no confidential information was disclosed.

Relying on King, the court stated that there was ”a strong indication that the township hoped and intended to retain the attorney. It was likely that under these circumstances the township representatives spoke freely with him concerning all aspects of their proposed program and how they hoped to achieve it.”

One appellate court has held that once an attorney-client relationship is created, it is irrebuttably presumed that confidences were passed between them. Morris v. Margulis, 307 Ill. App. 3d 1024, 1037, 718 N.E.2d 709 (5th Dist. 1999) rev’d on other grounds, 197 Ill. 2d 28, 754 N.E.2d 314 (2001).

In order to avoid conflicts of interest, disqualification or malpractice claims, lawyers should carefully identify who is considered a client, enter that information in the firm’s conflicts database and identify clients in engagement and non-engagement letters.

Closing Argument: Giving back to your community

By Christina Tchen

The week has been filled with the challenging work of a busy litigation practice brief-writing, depositions, advising a client in an investigation. But instead of heading home on a Friday night, I am headed to Chinatown for a fund-raising dinner featuring singing toddlers from a day-care center and tweens performing traditional Chinese dances.

Another morning finds me going from an early-morning community board meeting to a federal court status hearing. And this past New Year’s Eve was spent in an Iowa snowstorm, knocking on doors before the presidential primary caucus.

And why? What is the point of adding community organizations or political work to an already crowded life?

My personal interest predates my legal career. My mother showed me the way, as she devoted her energy to Girl Scouts, foreign exchange students, and passing needed school levies in our small suburb. For her, these were life-enriching activities, providing her with leadership opportunities, life-long friends, and enlightening experiences.

I have tried to follow her example, and have made community involvement an integral part of my life. We are used to thinking about pro bono efforts in terms of litigation cases or advocacy work for an individual client. But community involvement and service on a board of directors can also be pro bono. (Here, I take issue with the ABA standards, which don’t ”count” this work as ”core” pro bono services.)

Community organizations are in desperate need of the pro bono services of lawyers they need lawyers on their boards, they need lawyers to help them incorporate, they need lawyers to advise them when they have issues. By getting involved, you are helping reach people in need, and are sure to meet new contacts from across the public and business sectors.

But how do you decide where to put your limited time, and often your limited treasure not to mention your special talent?

For me, it all begins with what I care about because if it’s not something you have a passion for and enjoy doing, then it is not worth the precious expenditure.

So, as the daughter of a physician, I jumped at the opportunity to serve as a trustee of the University of Chicago Medical Center. There I have had the chance to learn about the groundbreaking health-care advances. I have seen first-hand the gentle and sometimes heartbreaking care provided to high-risk infants. And I have learned the intricacies of our health-care system, as the medical center finds ways to stay at the forefront of advanced research and medical care while also serving as the largest provider of Medicaid services in the state. These experiences have taken me far afield from my corporate litigation practice.

At the other end of the spectrum, from a large enterprise to a neighborhood organization, I also serve on the board of the Chinese American Service League.

As the daughter of Chinese immigrants, I feel a special relationship with CASL’s mission, which is to serve other new immigrants like my parents, and those in need in Chinatown.

The connection to my own personal roots is strong, as I can often hear the lilt of my mother’s voice or see the face of my adopted Chinese daughter in the CASL clients I meet. The joy and spirit of this community is infectious.

Most recently, I have found that spirit in an activity that has taken me back to my youth. This campaign season has found me phone-banking and canvassing after nearly 20 years.

Why spend my time, treasure, and talent walking through unfamiliar neighborhoods to knock on the doors of strangers? The answer was reinforced for me the evening of the South Carolina primary, standing in the basement hall of an African-American church, as this community of new-found friends from across the country, across the generations, across ethnic lines, joined together in delight at the fruits of their work together.

This is the lesson I learned from my mother about volunteering. It is the significance of belonging, of becoming part of somewhere, of caring enough about where you live, work, and raise your children that you want to do something to make it a better place. I cannot imagine a life on the sidelines, merely going home each night, perhaps clucking about our school system or the sorry state of health care, without being involved somehow in the work that addresses these issues.

For me, the mix of law practice and community and political involvement has worked. I’m not a golfer, a runner, or a gardener (as evidenced by the physical condition of myself and my home). So, community organizations and politics have become my hobby my after-hours entertainment, creative outlet, and social network.

As my mother found, I have made life-long friends and had memorable experiences through these activities. I have cut ribbons to open new libraries in underserved neighborhoods; I have seen cutting-edge health care at work; and most recently, I have personally witnessed the possible birth of a new political age in America.

It has made me a part of the fabric of our community, and I thank my mother for showing me the way.

Diversity in Practice: Cutting through political correctness

By Arin N. Reeves, J.D., Ph.D.
The Athens Group

If you have ever watched ”The Office,” a satirical comedy on modern workplace dynamics that airs on NBC, you probably already know that one of the show’s most popular episodes is ”Diversity Day.”

During Diversity Day, a day of diversity training and conversations on differences, the regional manager of the fictional Dunder Mifflin company, Michael Scott, says things like:

[To a Hispanic co-worker] Let me ask you, is there a term besides Mexican that you prefer? Something less offensive?
[In reference to a race role-playing exercise] You’ll notice, I didn’t have anybody being Arab. I thought that would be too explosive, uh, no pun intended.

[In reference to diverse food] — some burritos or some colored greens or some pad thai— [In response to being corrected that it is ”collard greens” and not ”colored greens”] That doesn’t make sense. You don’t call them collard people … that’s offensive.

I have shown clips of this episode in training sessions, and the sincerely politically incorrect Michael Scott never fails to evoke laughter from audiences of any demographic mix.

When the laughter eventually fades, and I ask people to think about why they find this episode funny, the answers fall somewhere between the release induced by raw political incorrectness to the candidly humorous navigation of topics that are now considered workplace taboos. The dialogue on diversity following a viewing of ”Diversity Day” usually leads to this question: Have our good intentions to usher in diverse and inclusive workplaces stifled the very conversations we should be having to make our workplaces diverse and inclusive?

Political correctness in the workplace perhaps initially served the necessary purpose of containing the offenses perpetrated by those who could not differentiate between sexual harassment and compliments, or cultural curiosity and stereotypes. But has political correctness now become an obstacle on the road to diversity and inclusion? In order for us to recognize, respect, and even value our differences, is it not necessary for us to be able to talk candidly about these differences?

Each of us enters a workplace with a set of beliefs, perspectives, and opinions that reflects our individual experiences, and imbedded in our beliefs, perspectives, and opinions are biases and preferences.

A relatively new tool developed by Harvard University (the Implicit Association Test) to measure hidden biases in people reveals some startling results: 88 percent of white people had a pro-white or anti-black implicit bias; nearly 83 percent of heterosexuals showed implicit biases for straight people over gays and lesbians; and more than two-thirds of non-Arab, non-Muslim volunteers displayed implicit biases against Arab Muslims. The IAT has also found that large majorities of the U.S. population showed biases for Christians over Jews, the rich over the poor, and men’s careers over women’s careers.

Not only do the results contradict the perceptions of many of the test takers that they did not have biases for or against any of the groups mentioned above but the IAT results also demonstrated that the biases are often societal biases that affect the minority groups as much as they affect the majority groups. For example, 48 percent of blacks showed a pro-white or anti-black bias; 36 percent of Arab Muslims showed an anti-Muslim bias; and 38 percent of gays and lesbians showed a bias for straight people over homosexuals. (www.implicit.harvard.edu, or at www.projectimplicit.net)

Given the consistency of the IAT’s results across those people who have taken the tests thus far, we may need to start defining biases differently. Instead of viewing biases as inner flaws, we can recognize biases as the collective snapshots we have of our social history.

If left hidden, our biases keep us mired in a place where our differences divide us. If kept hidden, our biases will prevent us from growing and competing in a profession, a city, a nation, and a world that is increasingly diverse.

The IAT research team has soundly and effectively defended the scientific methodology and results of this groundbreaking test, but the researchers have just as effectively argued that implicit biases are more likely to affect our actions when they stay implicit. Once we become our aware of our biases, we gain the conscious choice to act in a way that is inconsistent with our bias. In other words, it doesn’t matter what our biases are if we are not making biased decisions in the workplace.

If biases are an intractable part of who we are, then, political correctness only serves to keep our hidden biases hidden. Perhaps diversity and inclusion require us to not focus on eliminating our biases but recognizing them through candid conversations that cut through political correctness with sincerity, empathy and courage.

In a world where the fear of being labeled a racist or sexist is quite real, the strongest advancers of diversity may be those who are willing to risk political incorrectness and have real conversations about differences, commonalities, prejudice, diversity, and inclusion.

I’m not necessarily advocating for the Michael Scott style of conversation, but a little more Michael Scott and a little less political correctness may indeed serve us well.

Practical Matters: Do we really need an office?

By David M. Heilmann
Clausen Miller

It’s April. The season is changing. A stroll down LaSalle finds 20,000 people in trench coats with that same squinty-eyed, almost constipated look as the winds blow sleet and hailstones in our faces.

Thousands of lawyers commute every day into the city. Probably adds on average two-plus hours per day to the job.

We trade stories of the hours it took to get home, the delays on trains, the snow problems, de-icing the car.

Then it happens. You’re in your own neighborhood, chatting about the weather and the brutal commutes, and some guy says, ”Oh, I work five minutes from home,” or ”I work out of my house.” He is filled with glee. I don’t personally care to hear this after cleaning chunks of salt off my shoes, and can think of no other response than, ”Well, they say most terrible accidents occur within a mile of the home.” Then I leave.

Other than because we are the most important people in the universe, lawyers, like any profession, should ask, ”Why do we go to an office?” (To get the hell out of the house is not an answer.)

The question almost sounds philosophical, but it isn’t that deep. Or boring. At one time, the answer was clear.

The office is where the files are, clients are met, meetings held, documents reviewed, and from where we most conveniently access court.

Times have changed. Most documents, pleadings, contracts are stored and sent electronically. Many court documents are filed electronically without the need for an actual signature. Research is done electronically and decreasingly in law firm libraries. Video-conferencing, e-mail, and BlackBerries have enhanced client communication. Simply put, technology has made it possible for the lawyer to be as or more efficient out of an office setting.

But most firms are paying for office space today just as they have for years. Firms need offices for clients, court, storage of the files, documents, and many other very legitimate functions, such as free pens, personal copies, and long-distance calls.

The traditional thought is that if the offices are filled with billing attorneys covering the costs, then let’s get a lot of space and fill it up. Two questions: What if you don’t fill that space? And/or, What if you don’t need that space?

As to the first, US Equities COO Nancy Pacher was quoted as saying, ”It is not rental costs per se that can strangle a law firm user; it is rent on empty space, where attorneys could be billing fees, that can turn an otherwise profitable firm into a non-profitable one.” (Law Practice Today, January 2005)

An empty office is costly because you have no one generating revenue to cover the expense.

Occupied, that ‘’space” should turn a profit for a firm, be it large or small. It would follow, then, that profits rise if you have more than one attorney billing one office.

That doesn’t mean two people at one time, which makes no sense. It goes to the broader question of the necessity of an ”office” in an electronic age.

The legal industry appears to be on completely divergent paths. Can you imagine that, lawyers disagreeing?

Some would answer ”no” to the question of whether you need any offices. There are relatively new companies like Axiom Legal that provide on-site legal services to clients and eliminate office space and all the financial burdens that come with it.

Their theme is replacing ”mahogany with technology” by working out of ”12 x 15-inch offices” a networked laptop. The company was founded on the premise that there was a more efficient way to deliver legal services.

On the other hand, look at what’s happening in Chicago.

A 46-story tower being scheduled to open at 155 N. Wacker in 2009 claims the law firm of Skadden Arps as an anchor tenant, taking more than 200,000 square feet. (www.chicagorealestatedaily.com)

Kirkland & Ellis has signed on for 600,000 square feet in the new 60-story, 775-foot building at 300 N. LaSalle. (Hines Interests LP)

Jenner & Block and Mesirow Financial will be co-anchors and lease over 700,000 square feet in a new 47-story tower at 351 N. Clark St., scheduled to open next year.

Is there a right answer? No.

First and foremost, lawyers are responsible for ”maintaining public confidence in the system of justice by acting competently and with loyalty to the best interests of their clients; [and] by working to improve that system to meet the challenges of a rapidly changing society.” Illinois Rules of Professional Conduct - Preamble.

The obligation is to the client first, and it is up to each lawyer and firm to decide how that is best accomplished.

The legal industry is often accused of being conservative and slow to change. Hard to say whether we will be behind the curve on this one, but the subject warrants thought in long-term lease planning.

I’ve gotta go catch my train now.

Pro Bono: Color-coded divorce advisories

By Margaret C. Benson
Chicago Volunteer Legal Services Foundation

Pro bono attorneys are spirited and powerful, embracing the battle on behalf of underdog clients. Usually. There is, however, one type of pro bono case that leaves even the toughest, meanest volunteer lawyer quivering in a corner — divorce. Pro bono attorneys fear these cases, panicked by the tears, the emotional outbursts, and the irrational behavior that they believe is a fundamental element of every divorce case.

It’s time, however, to put to rest the myth that all divorce cases are horrible. Some pro bono divorce cases play out like a simple partnership dissolution instead of a cliched retelling of a Shakespearean tragedy.

The true tragedy for volunteers is that they have never been able to tell which cases are safe to accept, and which ones are likely to explode without warning.

Volunteers need never fear a stealth divorce case again, thanks to a special protocol developed by the Federal Bureau of Pro Bono Protection (the FBPBP), a little-known division of the Department of Homeland Security.

The FBPBP, charged with protecting volunteers from being terrorized by inappropriate cases and difficult clients, created The Pro Bono Attorney Divorce Advisory System, a simple, colorful guide that ensures that volunteers accept only those pro bono divorce cases that fall within their emotional and legal capacity.

Developed for distribution to volunteer programs nationwide, this system is being tested in Chicago because of the high numbers of pro bono attorneys who unilaterally refuse all divorce cases.

The system is relatively simple.

A potential pro bono divorce case is closely examined by a trained professional, who meticulously evaluates it and checks it against a list of known trouble-making variables. Then the cases are color-coded for placement purposes. The end product is a pro bono divorce case packaged and labeled specifically for volunteers.

The categories are simple and clear:

Green — low risk of emotion. These cases are the simplest of the simple. The parties have been separated for a long time and do not care in the slightest about each other. They never had children together and never acquired any property. Most of these cases involve extremely short marriages and extremely long separations.

Blue — general risk of emotion. These are still pretty darn simple. In most cases, the marriage ended years ago, and now they are simply making the divorce official. They each have their own stuff and they don’t care about their spouse’s stuff. There may be some minor child support or property issues to resolve, although a long separation usually alleviates any risk of a contest.

Yellow — significant risk of emotion. Okay, we’re getting a little warmer. The most common complicating factor is children. That should come as no surprise to anyone who has children. Joint property typically a home, pensions, and debt also comes into play here.

Orange — high risk of emotion. Volunteers who take orange-coded cases need to be ready to handle some intense feelings, complicated by factors such as domestic violence, substance abuse, financial exploitation, criminal behavior, and psychological impairments.

Red — severe risk of emotion. Red cases are better left to the professionals.

The Pro Bono Attorney Divorce Advisory System is not foolproof. Professionals can and do make mistakes, especially since evaluations are, ultimately, judgment calls. An evaluator feeling particularly optimistic one day, may code an orange as a yellow or a blue as a green. Rarely are cases miscoded by two degrees.

Another complication is the fact that divorce cases, like any case involving a living client, can transform, sometimes without warning.

Yellow becomes red overnight, blue jumps to orange when one spouse acquires a special friend. Sometimes, cases downgrade orange turns to green, often when the other spouse also acquires a special friend.

But don’t worry.

Because there can be no guarantees in the actual nature of a pro bono divorce case, the FBPBP requires that any participating pro bono program must agree to take back cases that were either initially miscoded or moved higher on the color-coding scale subsequent to placement. Pro bono programs that refuse to assume responsibility for miscoded or transformed divorce cases will lose their FBPBP certification and will no longer be allowed to officially place pro bono divorce cases.

Volunteer attorneys: Thanks to your friends and protectors in Washington, D.C., you no longer have to fear the pro bono divorce case. Once you pinpoint your capacity for emotional intensity and your legal abilities, you can get the case that’s right for you. And if, for some reason, you find yourself in a case that is more than you expected or are able to handle, you can send it right back to your referring program.

Make sure that your pro bono provider works with the Federal Bureau of Pro Bono Protection and uses The Pro Bono Attorney Divorce Advisory System. You’ll never be terrorized by a challenging pro bono divorce again.

As first deadline nears, CLE providers step up

By Maria Kantzavelos

As the deadline looms for the first wave of Illinois lawyers required to complete a minimum number of hours of continuing legal education, longtime providers of those courses and seminars are preparing for cram time in the next few months.

With ramped-up programming, new electronic modes for delivering course work, and plans for CLE fests and ”one-time shopping” events, many CLE providers intend to reach out to those lawyers who may be waiting until the tail-end of the initial two-year reporting period, which closes June 30 under the Illinois Supreme Court’s Minimum Continuing Legal Education requirements.

”We’re anticipating there will be a number of lawyers waiting until the last minute,” said Steven C. Rahn, director of courses for the Illinois Institute for Continuing Legal Education, which has provided CLE in Illinois for 40 years.

”As soon as the rule was passed, I told my wife, ‘we’ve taken our last June vacation.”’

The Illinois State Bar Association has seen about 9,000 lawyers earn MCLE credit through its programs and meetings since January 2006, said Jeanne B. Heaton, CLE director for the ISBA.

”I think we’re going to have a lot more attorneys coming to us in the next few months,” she said.

In September 2005, Illinois became the 41st state to require continuing education for lawyers. Under the MCLE rules, lawyers whose last names begin with the letters A through M have until June 30 to complete a minimum of 20 credit hours of CLE. That requirement increases to 24 hours in the following two years and 30 hours in each two-year period after that.

”We expect there are still some attorneys out there who don’t realize the scope of the MCLE requirement,” Heaton said. ”I suspect, since this is the first reporting period, there may be some who haven’t started.”

The remaining lawyers — those whose last names begin with the letters N through Z — will face their first MCLE deadline next June. The MCLE rules also require 15 hours of basic skills instruction for new lawyers.

To accommodate lawyers facing the first deadline this summer, the ISBA is planning a CLE Fest June 5 to 7 at its Chicago office and during the ISBA’s annual meeting June 26 to 27 in St. Louis.

”People can come and get credit in increments of two hours for up to 14 [hours] on-site, and, they can use our electronic CLE 24/7,” Heaton said.

IICLE has scheduled an ”MCLE Video Encore Mall” June 2 to 6 at the UBS Tower conference center, 1 N. Wacker Drive. There, Rahn said, participants can choose from a menu of video replays of titles to watch in six-hour sittings for $195 each.

At the Chicago Bar Association, ”The staff is getting flooded with calls from people wanting to know how the rule works,” said Cunyon Gordon, who chairs the CBA’s CLE committee.

Gordon said many of the CBA committee leaders plan to increase their MCLE presentations in May and June. And the CBA is beefing up its inventory of CLE programs available on DVD.

”We have a bank of rental DVDs already; those are going like hotcakes,” Gordon said.

Karen Litscher Johnson, director of the supreme court’s MCLE Board, which administers the program, said a look at other states with experience in the MCLE scene offers an indication of what might be in store for Illinois come compliance time.

”Other states have mentioned they do have a number of people kind of late in the process trying to get credits,” Johnson said. ”We’ve been talking to providers about planning for April, May, and June of this year — what can providers do to make it even easier for attorneys to get their credits?”

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