Counsel’s Table: A duality of taste

By Russell B. Selman
Katten Muchin Rosenman • Restaurant Critic

It always seems odd to me to vacation away from Chicago just when Chicago’s weather suddenly improves each summer. The glorious summer has such power as to induce amnesia, and I quickly forget what I just endured.

Not all Chicago residents agree with me: Some very wealthy friends recently returned from a restorative trip to North Korea. When I wryly questioned whether they had an unnatural fondness for concrete they simply asked whether I, too, had recently visited Pyongyang. Err …, ”I have not,” I responded, and I suppose when it’s time for me to vacation in North Korea it means that I have visited every other place on earth. And, that I am so old that one-piece jump suits and permed gray hair are a comfortable choice.

No, for me, I stay in Chicago in the summer, but I look for places in-town that have a languid and somewhat dissipated attitude. While I know that such description can apply to several of Chicago’s most venerated mid-sized firms currently suckling merger partners, I mean places to hang-out over leisurely lunches. The kinds of places where you can show-up alone and they still bring over the full-bottle wine menu never thinking you prefer wine-by-the glass.

Aigre Doux is that sort of place. While we hours-obsessed lawyers build our time sheet sand castles all year summer is the time to recognize that our clients really don’t love us, so you might as well have a drink and kick off your shoes. For me, such is the essence of relaxation, especially since Aigre Doux’s floors are a cool stone.

The mixture of my love/hate summer attitude is the same as Aigre Doux’s name, which refers to a duality of sweet/sour taste. Just when you think you have pegged a flavor, it turns inside out and metamorphoses. Not to the opposite, the flavor just becomes something else.

So the oxtail raviolis are round, but individually served in square little plates for contrast. The flavor is first sweet, than gets more savory and complex. I notice a few saucy spots have appeared on my shirt and I grin. Another ”I’ll send this shirt to the laundry” choice is the mussels in a coconut curry, which are fragrant and plump. Again, the mussels make my shirt a virtual photo log of the feast I’ve eaten.

But so what, when the food is good that’s my attitude and that’s my attitude at Aigre Doux.

Entrees are less accident-prone, but still juicy. The sweet duck uses currants to bring out a fuller flavor by restricting the sweetness and keeping the flavor within the bounds of propriety. A simple pulled-pork sandwich is less successful, because the chef has again and again sweetened the meat to candied consistency and doubled-down by invoking it all in a buttery bun. While summer is the time for candy-apples, I looked for, in vain, a spot of sour rectitude.

Keeping the sweet/sour balance is not the end-all of Aigre Doux. Some dishes are just good, like the rack of lamb, with truffled grits, which prove that with enough truffles even Styrofoam can climb to the top of the food pyramid. I also favor the black cod in miso, which establishes a food fantasy that this cod lived its very happy life in a strange Japanese tributary of miso waters, which added a natural shroud of sweetness.

Aigre Doux is able to bring off this imaginary quality. With all of this intense cooking interest, Aigre Doux is more of a European sophisticated-type vacation not a quick week’s trip to Hawaii where you might go for some sun and hanging-out. Aigre Doux is a nice place for a lawyer on the lam without leaving Chicago.

Pleadings:
Aigre Doux
230 W. Kinzie St.
312-329-9400

Court costs:
Appetizers $8 - $12 Entrees $12 - $35

Verdict:
Three Gavels

Closing Argument: The nature of the beast

By Todd A. Smith

For virtually all of my career the civil justice system has been under attack. The ultimate goal is to diminish and even eliminate the jury decision. This is desired so that the responsibility for wrongdoing can be controlled. And not controlled by judges and juries, but by those who are regularly on the wrongdoer side of the equation.

Of course, this goes to the heart of our separation from England. We wanted nothing to do with a justice system controlled by the powerful. One of the things we wanted was to have independent decisions made by regular citizens. This is why the relentless attacks and the methods used are so troubling.

Attacks on civil justice rights, the independence of the judiciary, and the legal profession obtain quick acceptance among broader audiences simply by the use of buzzwords words and phrases that have been focus-grouped, strategized, and promoted through well-funded public relations efforts.

”Frivolous,” ”Judicial Hellhole,” ”lottery,” ”lawsuit abuse,” even ”trial lawyer,” with the appropriate sneer, have come to represent, for some, the civil justice system in America.

Of course, no one favors a ”frivolous” lawsuit. But billions have been spent to create the perception that most, if not all, lawsuits are frivolous. The most meritorious of cases, that virtually demand justice, seem not to escape the attacks and are clearly impacted.

Who is applying the pressure with seemingly limitless infusions of funds to think tanks, interest groups, and ”institutes”? At this point it is not so well-concealed. Behind misleading titles such as ”American Justice Partnership” (an amalgamation of industry front groups), the ”Illinois Civil Justice League” (the Illinois entry of similar groups), and the ”Institute for Legal Reform” (created and paid for by the U.S. Chamber of Commerce), lies a broad coalition of corporate interests, including the insurance industry, tobacco industry, pharmaceuticals, and more.

But, I suppose, one might say, ”How can you blame them?” If a corporation’s primary purpose is its bottom line, why shouldn’t it do all that it can to increase its revenue and limit its exposure to expense in this case, its responsibility for wrongdoing? It makes perfect economic sense. It’s in the nature of the beast.

And what they have discovered, along the way, is an added side benefit. Although the ultimate prize is the arbitrary cap on damages, the ”lawsuit abuse” campaign also affects elected officials, judges, and juries.

To become widely propagandized as a ”judicial hellhole” can’t feel good. Is it possible some judges are influenced by this effort? I suppose so. Judges are human after all. Perhaps that is what the proponents count on: that such insulting attacks on those who most deeply appreciate the importance of an objective judiciary will indeed bear fruit.

And, as to juries, you need to go no further than any courtroom during voir dire and listen as prospective jurors say there are too many frivolous lawsuits, or simply omit the word frivolous altogether. This suggests they may be inclined not to accept lawsuits, period. Regardless of merit. This is where the meritorious case is impacted. The well-funded campaign has jurors viewing with cynicism every case and their own civil justice rights.

Of course, the promise has always been that they are only after the meritless legal actions. Only the frivolous cases shall fall victim. But this proposition fails under the mildest scrutiny.

At the heart of the ”reforms,” again, are the arbitrary caps. A cap not on frivolous cases, but on meritorious cases, those most devastating to individuals and families. The contradiction is that such a damage limitation only becomes operative after a finding that one’s case has merit. And only after a determination by one’s fellow citizens that significant compensation is appropriate. Even the beast knows this, but it can’t avoid its very nature.

Another side benefit of the assault is the rediscovery of the lawyer as a convenient target in pursuit of the ultimate prize. Of course, lawyers have historically been useful targets, so there’s nothing new there. Here, however, it represents a false target. It is presented as a debate between corporations and trial lawyers.

Of course, this erroneous view is promoted. It’s much easier to vilify the lawyer shooting the messenger who stands to protect these constitutional rights - and make that the target, rather than to focus on the real parties in interest those harmed by the wrongdoer.

Even some objective political figures tend to initially lean toward this view, failing to appreciate that the ultimate losers to corporate power and overreach are not the lawyers, but those the lawyers represent regular citizens. All of us. It is our rights that are diminished and, in many instances, effectively eliminated.

Today, political candidates address the need for change, moving away from gridlock, and speak positively of compromise. Others speak of a candidate’s ability to reach across the aisle and come to agreement. Perhaps this has its place under certain circumstances. Here it represents a false premise. You don’t compromise basic rights. The right to a jury determination of the harm done and extent of it is described as inviolate. You don’t (and can’t constitutionally) ”reach across the aisle” and place an arbitrary legislative compromise on that which is to remain pure.

Ethics: Advance waivers of future conflicts

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

Rule 1.7 states that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client, or if the representation of that client may be materially limited by the lawyer’s responsibilities to another client, or to a third person, or to the lawyer’s own interests.

The exception to the rule allows the representation of clients with actual or potential conflicts of interest when ”the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and each client consents after disclosure.” The client consent is usually referred to as a waiver of the conflict.

Is it possible to obtain an advance waiver of future conflicts of interest? The answer is a qualified yes. Typically, the effectiveness of the waiver depends on the sufficiency of the disclosure, so that the waiver or consent is ”informed.”

Generally speaking, a waiver is a knowing relinquishment of a right. Thus, a client’s simple consent without adequate disclosure of the nature of the conflict may not be effective. Westinghouse v. Gulf Oil, 588 F.2d 221, 229 note 9 (7th Cir. 1978).

ABA Ethics Opinion 05-436 (May 11, 2005) states that an ”open-ended” advance waiver may be effective when the person giving it is sophisticated or is represented by other counsel on the waiver issue.

Even with sophisticated clients, however, the extent of the disclosure may make the waiver ineffective. In a 2006 case, McKesson Information Systems, Inc. v. Duane Morris, LLP, Fulton County, Ga., Super. Court Civ. No. 2006 CV 121110, the court found that a future waiver was invalid because it was not a knowing waiver that identified the specific adverse clients and details of the adverse representation.

Two months after the firm began its representation of two McKesson subsidiaries in a bankruptcy matter in Pennsylvania, it agreed to represent two clients against a third subsidiary of McKesson in Georgia. The engagement agreement with McKesson included a waiver of the firm’s representation of parties with interests adverse to McKesson and waived any actual or potential conflict of interest as long as those other engagements were not substantially related to the firm’s services to McKesson.

The court found that the future waiver was invalid because it did not identify the specific adverse clients and the details of the adverse representation, and did not refer to any particular parties or circumstances under which adverse representation would be undertaken.

It concluded that the McKesson companies could not have reasonably anticipated that the law firm would actually consider representing clients who would attack McKesson products and accuse it of fraudulent conduct, as the plaintiffs alleged in the Georgia case.

A similar analysis can be applied to the representation of a current client in a matter adverse to a former client. In Hasco, Inc. v. Roche, 299 Ill.App.3d 118, 700 N.E.2d 768 (Ill.App. 1st Dist., 1998), a law firm represented a limited partnership, Arauca, in a dispute with First Options of Chicago, Inc. (FOC). Later, it underIllegal ‘X-value’ for character STYLs voided here took to represent two subordinate lenders to Arauca in their claims against FOC in West Virginia circuit court.

The subordinate lenders signed a retainer agreement that contained a conflict waiver, which provided that the clients have a claim against Arauca, that the firm represents Arauca in claims against FOC, and that there is a conflict between the clients and Arauca. The clients ”waive[d] any conflict of interest associated with the representation by [the firm] of Arauca and the representation of Clients by [the firm] with respect to their claims against FOC.”

That matter resulted in a settlement, but FOC later initiated a NASD arbitration proceeding against Arauca and the subordinate lenders in a dispute over the settlement agreement. The firm appeared for Arauca and filed a cross-claim on its behalf against the subordinate lenders.

The subordinate lenders moved to disqualify the firm. The firm relied on the waiver to oppose the motion.

The court disqualified the law firm because its representation of Arauca against its former clients, the subordinate lenders, in a matter that was substantially related to the matter in which it formerly represented the subordinate lenders violated Rule 1.9 of the Rules of Professional Conduct.

The court found that the waiver signed by the subordinate lenders was limited to the West Virginia lawsuit and did not extend to the NASD arbitration dispute.

While the waiver referred to claims by the subordinated lenders ”against FOC” and ”against Arauca,” it did not address the firm’s representation of Arauca regarding Arauca and FOC claims against the subordinated lenders. Although the firm asserted that the purpose of the waiver ”was to waive all future conflicts of any nature,” the court found that such a broad intention was not contained in the language of the waiver.

When seeking a client’s waiver of a future conflict, try to be as detailed as possible in disclosing the nature of the conflict being waived and the parties involved in any such conflicts.

Clifford’s Notes: Judgment day

By Robert A. Clifford
Clifford Law Offices

For thousands, July marks the taking of the dreaded bar examination. I recall sitting for that comprehensive test about 30 years ago.

The questions may have changed; the emotions have not.

Being recently married, I worked full-time until just about a week before the two-day test. So I had to have a system: every day I allotted a certain time period for each subject, and I stuck with it. For example, I would schedule studying for contracts from 6 to 8 p.m., and then 8 to 10 p.m. would be civil procedure. And I did.

The first day of the exam, immediately after we opened our test booklets, someone behind me vomited. I was so focused on what I was doing that I never even turned around. I can’t tell you if the person was male or female. That type of focus is what is necessary to pass courses ranging from contracts to property, civil procedure to criminal procedure.

So it was with a bit of nostalgia and a great deal of interest that I watched a new DVD recently released entitled, ”A Lawyer Walks into a Bar.” The 92-minute movie, which is more of a documentary, won several film festival awards last year. It follows six students for 12 weeks in 2006 as they prepare for the California bar exam, which boasts the lowest passage rate each year, hovering around 39 percent.

Among those who have flunked in California, as the movie boldly notes, are Kathleen Sullivan, former dean of Stanford Law School; Jerry Brown, former governor of California, as well as former Governor Pete Wilson, who flunked it three times.

But the movie focuses on six ordinary people from various walks of life.

Don is a Vietnam veteran who failed the California bar 41 times. There also is Magda, a Hispanic woman who attended a California law school taught by volunteers. There is Tricia, who says she devoted 40 percent of her law school days trying to break into acting and is shown partying on a weekend when everyone else is cracking the books.

There is Cassandra, a driven young mother who is able to overcome the guilt of leaving her young son to recuperate from an infection in a hospital while she studies.

Sam is a young man who has failed it twice and dreams of going to court or partnering with his friends who already are practicing law.

And Megan, an artist whose father passed away while she was in law school, ”wants to change the way society works and how we interact with each other.”

The movie builds to reveal results that really are not all that surprising.

Viewing the movie confirmed the premise that those who studied with focus passed. Those who were overly confident, riding on their previous success in school, or testing with a take-it-for-granted attitude, would not succeed.

One also realized, though, that those who psyched themselves out did not do well either.

Hiring personal tutors, going to hypno-therapists, and drinking round-the-clock triple shots from Starbucks may be extreme or even unconventional approaches to pass the bar, but perhaps are becoming more commonplace as the profession becomes more competitive.

And it is that aspect that the film seemed to concentrate on. Personal-injury attorneys in particular.

The film is peppered with pithy comments from various nationally recognized lawyers. From Joe Jamail (the DNA of a trial lawyer is ”75 percent courage”) to Scott Turow (”the number-one thing that the American public has against lawyers is that they feel they make too much money and have too much influence, and they’re right”), the movie really became more of a reflection on the profession.

Opening with a speeding ambulance, hearing stand-up comics repeat oft-heard lawyer jokes, and watching late-night commercials by lawyers who tell you to ”pay up and you’re on your way to getting rid of that vermin you call a spouse” only served to reinforce stereotypes, myths, and cliches.

Overall, it was unbalanced, portraying lawyers as greedy, unqualified, uncaring, and even despised.

Yet, it did present the notion that lawyers are most appreciated when they are needed. Most parents still desire their children to become lawyers. Lawyers are smart, hard-working people.

I commissioned a study in 2002 with a respected national research firm that found those same notions to be true.

I don’t apologize for what I do helping people through a tragedy. None of us should.

The movie presented some frightening statistics: alcohol and substance abuse by lawyers is nearly twice the national average.

Many suffer for trying to take on the problems of others because they firmly believe in what they do and in those who they represent.

The pressures of lawyering can be great and it is not for the faint of heart.

For me, the movie makes me work harder to improve the public’s perception of who we are, and to brace myself once again, because my oldest daughter will be starting law school next month.

Diversity in Practice: The trailblazers

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

Branch Rickey, the general manager of the Brooklyn Dodgers in 1945, did not just seek the best black player to break baseball’s major league color line; he actively sought ”the right man,” a trailblazer.

According to Rickey, he had to find ”the right man as a player [and] the right man off the field. … He must be a great player … a man of exceptional intelligence, a man who is able to grasp and control the responsibilities of himself to his race and could carry that load.”

He found Jackie Robinson, an athlete who lettered in baseball, football, basketball, and track at UCLA and had already experienced and risen above the challenges of playing in integrated sports competitions. Robinson blazed a trail with the minor league Montreal Royals in 1946 and integrated major league baseball when he donned the Dodgers uniform in 1947.

In Robinson, Rickey indeed found ”the right man,” a record-breaking Rookie of the Year (1947) / MVP (1949) / six-time All-Star player who excelled in spite of racial hatred and violence from his fans and teammates alike. Rickey set off to recruit a black player who could meet major league standards, but by the end of Robinson’s first year, the majority of the major league could not have met the standards set by the first black player.

In the book, ”Moneyball” (2004), Michael Lewis introduces us to the Oakland A’s circa 2000, ”a small group of undervalued professional baseball players and executives, many of whom had been rejected as unfit for the big leagues, who had turned themselves into one of the most successful franchises in Major League Baseball.” A diverse team of non-superstars, the A’s did not look for the right men; instead, they chose good baseball players who worked to make the team right. A trailblazing organization with no individual superstars.

The barriers that Jackie Robinson broke in the 1940s inevitably made it possible for the A’s to break the mold in the 21st century. So, which model works better for diversity in the legal workplaces today: individual trailblazers breaking barriers or collective teams breaking the old molds of what it takes to compete and succeed?

In the field of diversity and inclusion, we celebrate trailblazers. Trailblazers are the barrier breakers and history makers. They are the people of color who, in small but brave numbers, fill the partnership and general counsel boxes in surveys. They dot the landscape of our state and federal judiciaries. Trailblazers signal the break from past limitations, but they don’t necessarily represent all of the perfectly able lawyers of color; they represent only those who are the spectacularly able and most willing to endure the rigorous dual careers of practicing law and blazing trails.

I was at a panel discussion on diversity several years ago when a young black lawyer asked the panelists if they thought it was possible for him to succeed in a law firm if he did not want to be a trailblazer. ”Not yet,” replied one of the panelists, ”we are still fighting for a star’s right to shine. We are a long way from average minorities having the same opportunities as average whites.” To be a successful minority lawyer, you had to also sign up to be a trailblazer.

The phrase, ”qualified minority,” is invoked in almost every dialogue on diversity; yet we rarely question why a minority needs the qualified qualifier in contrast to a white lawyer who does not.

”Qualified minority” is a phrase that stirs itself into most diversity efforts with a transparent ease that belies its presumptive nature — a minority is not fully qualified unless explicitly stated.

It takes a trailblazer to break through this presumption, and the trailblazer is celebrated for his accomplishment. The presumption, however, is left unchallenged. More importantly, the proposition that the majority of white lawyers could not meet the standards set by minority trailblazers is left unexamined.

The need to be explicitly defined as qualified is a professional stressor (and offense) endured by many minority lawyers.

The reality of having to blaze the trail you travel while achieving professional excellence in an environment where you are neither represented nor fully included is a reality that many minority lawyers accept; however, very few are willing to pay the price of living that reality for long.

So, many of the perfectly able leave because they are simply not willing.

Sixty years after Branch Rickey’s quest for the ”right man” to break down racial barriers, many diversity efforts still rely on trailblazers. Trailblazers are, by definition, remarkable. They are also, by reality, rare. The Oakland A’s give us an alternative model for diversity — a focus on high-performing teams that derive their success from their ability to leverage their differences and work toward a common goal.

Thus, the current challenge for diversity efforts is not the struggle to find more trailblazers, but to break the trailblazing mold and embrace the value that the sum of our average diverse parts will always be greater than any individual trailblazer, minority or otherwise.

All in the Family: Half a century as a divorce lawyer

By Joseph N. DuCanto
Schiller, DuCanto and Fleck

I never wanted to be a lawyer until I became one. Admittedly, a rather startling statement for one who has clung tenaciously to the practice for more than 50 years; something in the mix mesmerizes the mind to make the initial bond indestructible.

And so it is that I have witnessed a large swath of the development of the legal practice in Chicago since 1955, the year of my admission.

Then, a ”large” firm had as many as 16 lawyers, very few of whom were women. And Jews and Gentiles did not mix, with social club structures and memberships so restrictive that Western (German) Jews belonged to the Standard Club and Eastern Jews to the Covenant Club, and all the Gentiles had a dozen clubs that sorted them out.

New lawyers with strange-sounding last names were unwelcome at most law firms, as corporate counsel, or by financial institutions. These lawyers gravitated to solo practice or, like me, to divorce or criminal law. Much of this, thanks to the upwelling of the civil rights movement, has passed.

In my early years, ”divorce” was an ugly word; and those who confessed to being a divorce lawyer were untouchables of the bar, much like proctologists in medicine. No one thought much of or about them until they were really needed. And then they hopefully became, if briefly, your best friend with warm hands. I, a true social coward, covered my unfortunate selection by explaining to people that ”I do social work among the rich.”

Grounds for divorce and the necessity for imposition upon two friends to testify in support of inflated marital transgressions did little to enhance the majesty of the law in the eyes of the public. The appearance of ”no-fault” often called ”divorce without remorse” was providential. Indeed, with no-fault taking over in the 1970s, the social and legal climate respecting divorce and divorce lawyers changed from hostility to acceptance, as nice people began to get divorced and their lawyers were no longer schmoes.

The climate and process surrounding divorce has improved immensely, drawing to divorce law many very able young people — consisting increasingly of women — who seek to engage in ”people law.”

Gone, too, are the days in which all judges were randomly assigned divorce ”prove ups,” did not like them, and often made their displeasure known to counsel and their clients. From an orphan of the court system, ”Domestic Relations” now has 43 full-time judges who often request the assignment and, just as frequently, spend a large part of their judicial careers as dedicated family law judges.

Pervasive understanding now exists that a competent divorce practice involves substantial knowledge of many areas of law: real estate, contracts, trusts and estates, creditors’ rights, insurance, taxation, pension rights, and so on. Those who concentrate in the practice of divorce law have a solid footing in many areas that would have, in the past, done justice to the most knowledgeable general practice lawyer.

But let’s back-throttle to what I like about the law and why I stayed so long while others, wisely or not, elected to do other things.

It’s not the law’s symmetry, for there is little; fairness also is often hard to find; and the exercise of ”good” judgment is just as rare and ephemeral.

It’s the people who have made it for me. As a group, lawyers constitute the finest examples of dedicated, honorable, and service-oriented people anywhere, and I have enjoyed my acquaintanceship and work with virtually all of them, even those who vexed me by challenging my desire to make peace, as opposed to war to build bridges and not to erect walls.

As in any occupation, there are a few bad apples.

But the level of honor, integrity, and purity of spirit is found in greater and more intensive quantity in lawyers than in any other profession I know.

Over many years of practice, I also became aware that most lawyers could easily make a financially better and less tension-filled life in business or other lines of work, as opposed to serving the needs and requirements of individual clients.

Instead, we sell our lives in minutes and hours in the hope that we are doing good as we do well. Resolving matters successfully and with minimum harm to families brings a psychic reward far beyond financial compensation.After eight years of contributing ”All in the Family” to Chicago Lawyer, I have decided to move on to other forms of writing and other venues. I end my tenure at the Lawyer with the hope that my readers found some knowledge and enjoyment in the columns. I shall continue to practice law and to keep up a running dialogue with my brothers and sisters at the bar.

Thank you.

Joseph N. DuCanto is a founding partner of the family law firm of Schiller, DuCanto and Fleck. He concentrates in the tax and financial implications of divorce.

Climbing the Ladder: The art of listening

By Kamau Coar
Ungaretti & Harris

Along with many of my friends from law school, I decided on the law school route because we thought that the fact that we enjoyed arguments and debates would help us become good lawyers.

My friends and I certainly practiced as much as possible, arguing about everything from where to study to where to go to dinner, and everything in between. On more than one occasion, we would argue so long that a restaurant would fill up its reservations and we would have to go somewhere else.

Looking back, I cannot help but laugh at us — not just for missing out on a good meal, but also for choosing to go to law school because we like to argue. We all made the right choice, but for the wrong reasons.

Those 10 years since we decided to go to law school and become a lawyer have shown that when it comes to being a good lawyer, listening is a far more important skill than arguing.

It seems obvious that listening is an important part of any job, but the particulars of when to listen and why it helps you be a good lawyer are sometimes forgotten. While as lawyers we are often called upon to argue and persuade on behalf of our clients, it is our ability to listen that sets apart a good lawyer from a lawyer.

Everything we are able to accomplish for our clients as lawyers necessarily begins with how well we listen. A good lawyer starts any engagement by listening to the client paying specific attention to what the client wants to accomplish in a particular engagement.

In litigation, lawyers often assume that clients want to win the case, getting all of their claims granted and the other party’s claims denied. But, for clients, there are often many other considerations at work — how long the case will take, how much litigation will cost, what sort of precedent the case may set for other lawsuits and employees — all of those could cause that client to define a win quite differently.

Similarly, there are a number of factors at play in negotiating transactions that cause clients to define a win as something other than getting the most favorable terms. Clients are not all the same, and must be treated accordingly. To be a good lawyer, first and foremost, we have to listen and understand what the client wants.

As a good lawyer, this is usually just the start of when and what we have to listen to in order to best serve our clients. It is extremely rare that a client asks for a result and then leaves a lawyer to his or her own devices to accomplish that goal. It is just as rare that a client’s initial goals remain unchanged throughout the engagement. Reality often intercedes.

As more information is discovered throughout the process, the client’s specific goals change as well. Sometimes the facts of a situation alter what a client considers a favorable outcome. Sometimes there are facts that a client is aware of that he or she did not initially think were important, but end up being critical.

Sometimes an opposing party provides information that changes your client’s opinions or bargaining leverage. Sometimes the answers you get as a lawyer are incomplete. In order to best advise your clients, it is essential that you have as much relevant information as possible.

Arguing does not flesh factual issues out, listening does. A good lawyer must always listen to make sure that you get all of the necessary information to advise your client. Once you have all of the information and it finally comes time to argue, listening remains a critical part of being a good lawyer.

The first part of communicating arguments on behalf of clients is to convey the client’s position as completely and accurately as possible. But this, by itself, is not enough.

Communication is actually a two-part process.

The second, and most important, part of this process is to make sure that the information is shared in the best possible way to persuade the intended audience. It does your client no good to state their case in a way that is factually accurate but not persuasive to the judge, jury, adversary, or whoever else you are trying to convince. A sports analogy, for example, will not be very persuasive to someone who is not interested in sports.

A good lawyer has to ”listen” to the intended audience to make sure that what you are trying to communicate is what the audience is actually taking from what you are saying.

I still speak frequently to a good number of my law school classmates. While we still argue about some things, now it is usually about who picks up the tab. Arguing doesn’t seem to get us nearly as far along in life as listening does.

Opening Statement: A modern-day passion play

By Julian Frazin
Michael Best & Friedrich • Entertainment Critic

May it please the court…

“The Ballad of Emmett Till,” written by Ifa Bayeza and directed by Oz Scott, made its world premiere recently at the Goodman Theatre. It stars the exceptionally talented Joseph Anthony Byrd in his Goodman debut as the ill-fated, 14-year-old, African-American boy from Chicago who was abducted, tortured, and brutally murdered for whistling at a white woman in Mississippi during the summer of 1955.

Staged simply on a set with few props flanked by huge panels evoking corrugated metal shantytowns, the powerful production is augmented by the dream-like projections of designer John Boesche. The first act is beautifully performed, almost as a poem, depicting the depressing, yet spirited life of black Americans in Chicago, as well as in the South. It ends with Emmett’s abduction and a foreboding, middle-of-the-night phone call to his mother.

The second act may be a little harder to take. It portrays the horrible tortures that the young man endured, turning this work into what I believe to be a modern-day passion play. We see Emmett being brutally beaten. At one point he turns to one of his tormentors and tells him, “I remember you. You gave me water.” At another point, some terrible instrument stabs him, leaving a ghastly wound in his side. And finally, there he stands, atop a raised platform, clothed in a dirty blanket, arms outstretched, pleading for help from his “father,” as he defiantly shouts over and over, “I shall rise again. I shall rise again,” before disappearing from the scene.

Just as the New Testament tells us that Jesus died for all our sins, I have no doubt that playwright Bayeza is telling us that Emmett Till died for our nation’s sins in tolerating the brutality and savagery of racial injustice.

On a lighter note… In 1941, “Tchaikowsky (And Other Russians),” a nonsense patter song with lyrics by Ira Gershwin and music by Kurt Weill, launched the career of Danny Kaye. Featured in the Broadway musical, “Lady in the Dark,” the show-stopping number, which mentions 50 Russian composers, was a masterpiece not only in its construction, but also in its performance - the indefatigable Mr. Kaye managed to get all the names out in rapid succession with hardly a breath in 39 seconds.

Now along comes multi-talented singer/pianist/writer Mark Nadler, who brought his one-man show, “Russian on the Side,” in a pre-Broadway run to the Royal George Theatre, 1641 N. Halsted St. Nadler tries to “one-up” the original by not only performing “Tchaikowsky,” but also by making it the basis of his 90-minute entertainment. He describes each composer with an interesting biographical anecdote and with a brief piano sample of each person’s work. All this is interspersed with sensitive and clever performances of works by contemporary American songwriters- including Gershwin, Sondheim, and Bernstein.

Now, I knew Danny Kaye. I saw him in movies and on television, where he performed his musical signature “Tchaikowsky,” many times. And I must say - Mark Nadler is no Danny Kaye. He is, however, the perfect Mark Nadler.

Whether he’s bouncing across the stage, cajoling the audience to love him, singing a classic show tune with a powerful stage voice, teasing the audience with a little piano shtick, a la Victor Borge, pounding furiously away like Liberace, or accompanying himself on the keys as he performs a soft-shoe from the bench - Nadler is the consummate entertainer.

Second City, Chicago’s most revered comedy institution, at 1616 N. Wells St., opened it 95th Revue, “No Country For Old White Men.” An obvious twist on this year’s Academy Award winner, it captured the essence of a presidential race in which John McCain is pitted against either Barack Obama or Hillary Clinton. With a title like that and all the political and social news swirling around us, how could Second City, known for its biting satire, possibly miss in its opening run-up through the November election?

But miss it did! With all that is going on - the campaigns, the war, the economy, the high price of gas, this production chooses to direct its attention to such topics as women being overcharged and bamboozled by a unscrupulous pair of car mechanics; a son confessing to his gay parents that he is Republican; a homeowner threatening to throw his realtor off a bridge because she refuses to take back his overpriced house; and, of course, the annual rant about the Cubs, who haven’t won a World Series in 100 years.

Hopefully, the cast will watch the news over the next few months and use their imaginations and improvisational skills to come up with some much more significant material as we approach what may be the most important election of our lifetimes.

I rest my case.

Verdict:
The Ballad of Emmett Till — 3 gavels
Russian on the Side — 21⁄2 gavels
No Country for Old White Men — 2 gavels

Practical Matters: Time is running out

By David M. Heilmann
Clausen Miller

Tick tock tick tock …

Hear that? It’s the dreaded CLE clock, ticking down faster than the one used for bar exams. The deadline is near for those of you with a last name beginning with A through M. By July 1 you need to have completed 20 hours of continuing legal education credits or …

Do we know what will happen for those who fail? Will they be scolded, disbarred, beaten, or — worse yet — forced to watch old Bears highlights when Bob Thomas was a mere kicker?

Lawyers are terrified. There is a deadline and we don’t have our favorite weapon to use: a motion to continue.

The daily phrases of our practice — ”Move to continue,” ”kick it,” ”ask for more time,” and the always-popular ”get a new date” (formerly reserved for chubby prom guests) — won’t work. Sad, but our favorite motion is unavailable.

Lawyers all over the state are in near panic. The thousands who haven’t even started their CLE work may seek asylum in Canada. Others — the daring ones — may chance it and walk into a courtroom July 1 without having completed their 20 hours. At that point, who knows? It could get bloody.

Let’s review the rules.

Supreme Court Rule 794 (a): 20 hours of CLE during the initial two-year reporting period as determined on the basis of the lawyer’s last name, ending on June 30 of either 2008 or 2009. It goes up to 24 and 30 hours over the subsequent two-year reporting periods.

Rule 794 (d): 4 hours of ”professional responsibility” education, defined as professionalism, diversity, mental illness and addiction, civility, or legal ethics. Social ethics and illegal ethics won’t count.

If your last name begins with the letters A through M, your CLE work must be done by the end of this month.

Daley Center rumors have it that all the N’s are getting together for a party June 29 to laugh at the rest of us.

But not so fast. There is, thankfully, a grace period. Attorneys are supposed to report their compliance on a certification form or online, by July 31. The MCLE certification requires that the attorney state whether she (1) has complied with CLE requirements; (2) has not complied; or (3) is exempt.

But Rule 796(b) has come to the rescue. That allows a grace period, and specifically states that attorneys shall be given 61 additional days from the original certification due date to comply. That means Sept. 30.

Still, not a lot of time. So, for all those last-minute shoppers who haven’t started, what should you do to get the credit and avoid being the laughingstock of your profession?

Here are a few suggestions.

If you belong to a bar association, that’s a good start. The ISBA has a CLE ‘’store.” Isn’t that nice of them to open a store for us? The ISBA offers its members CLE opportunities through FastCLE.com, which ”features instant online access to courses to earn MCLE credit in Illinois.” You can get DVDs, Audio CDs, video CD-ROMs, and online delivery, ‘’so you can earn MCLE credit on your terms.” www.isba.org.

Members of the CBA can opt for CLE Advantage, the $125-per-year program that allows participants to attend most afternoon seminars and the ability to check out CLE DVDs from the CBA Legal Bookstore at no extra charge. The ABA also offers an abundance of CLE courses to its members.

IICLE.com offers live programs via teleconference and also recorded programs online. ”MCLE credits may also be earned by watching IICLE DVDs of programs or listening to IICLE audio CDs.” It also states that when you purchase these DVDs or CDs, IICLE will issue an affidavit of compliance. They obviously know that no one would ever buy it and not watch it.

There are tons of private providers. Law.com and Lawline.com are now offering what they call an ”Illinois CLE Bundle Package” of 20 credits for the low, low price of $199. And if you order now, you’ll also get the Ronco Steamer. But that’s not all, call within 24 hours and they’ll throw in Ann Murray’s Greatest Hits.

You may just kick back and wait for someone to call you.

I received one of those calls last week. ”Hi, Mr. Heilmann, we’re calling about your CLE credits to date.”

That sent a chill down my spine. Who is this? What do they know? I’ve completed my credits. Has there been an audit? Did I take the wrong class? Why did that instructor lie and say he was certified? Oh, the humanity!

The message continued, ”We can help you get these completed by the June 30 deadline.” What? How?

Only then did they identify the company name and say, ‘’so if you have not completed your credits, we can provide this service and are an approved CLE provider.” Whew.

Maybe you’ll get a call. Or perhaps you’ll join a bar association, if you haven’t already. But you do have a grace period that lasts the next few months.

It gives new meaning to ”what I did on my summer vacation.”

Counsel’s Table: Age doesn’t define dining

By Russell B. Selman
Katten Muchin Rosenman • Restaurant Critic

Given that the annual Death Star Cotillion known as the summer associate program is about to begin at most firms, I thought I would help out by offering a few unsolicited thoughts.

First off, youngsters, understand that no one is honestly interested in what you might have to say. Indeed, you send the absolute wrong signal to the senior partners by shifting the focus away from them and how they see the world. Well, here goes. Given that the Baby Boomer cohort now controls law firms, I suggest you learn from their favorite TV show, ”American Idol.” Each of the Idol judges represent a partner archetype that, once understood, is your best guide to a prosperous summer experience.

Typical partners are like Randy. Full of well-worn phrases and wrinkles, the Randy-partners want associates just like themselves. Whenever the Randy-partners get enthusiastic, they do so for practical reasons — so you can make your best impression by simply making it clear that you want to be exactly like them.

Rarer than Randy, but omnipresent in the very large firm, is the Paula-partner. The Paulas are always happy the way a circus clown is delighted by a balloon. Most often, the Paulas run the summer program because no one would allow the Paula to do any work for their clients.

Then, there is the Simon. You probably will not meet the Simon. Some Simons had a Chappaquiddick or two in their early firm years, or worse, actually spoke at a partner’s meeting in mild opposition to whatever bandwagon-with-wheels-falling-off idea was rattling by. Now shunned, the Simon is not at all interested in you, either. Don’t even try to butter up Simon and don’t worry about his view of you since no one cares what he says anyway.

To be honest about it, I suppose it may be an issue of age — perhaps the summer associates remind us all just how we’ve changed. Similar chronologic and transitional thoughts hit me when I dined at OTOM.

OTOM is run by the people who operate Moto, located just next door, on the trendy/ sketchy Fulton Street Market. Both are ”experimental” restaurants. At Moto the experiments are grand-scale, Manhattan Project affairs.

But OTOM is still recognizable as a neighborhood restaurant where they still use food ingredients as the basis for erector-set efforts to prepare a meal.

That OTOM is for the young is immediately apparent. First, the curb-height from Fulton Street is thigh-high — I felt like I was having a post-50-year-old medical procedure just getting up to the front door. Once inside, the lounge and bar take up at least 50 percent of the dining room real estate. Yes, OTOM is set up for the grazing speed-daters.

We were ”Early Bird” early on two occasions. Meaning that before 8 p.m., OTOM is as empty as a firm shared-billing credit meeting. Honestly (oops!), the dining crowd was looking a little ”Chicago Symphony Orchestra.”

How the spry diners even made their way into OTOM, I don’t know. I became a little weepy-eyed thinking about the sacrifices of my grandparents, great-grandparents, and great-great-grandparents. All of these earlier generations were in attendance at OTOM, all were eating the same food, and all of them left in time for the CSO.

With the Greatest Generation’s departure, their heirs quickly filled the demi-room. As a ”Tweener” generationist, I went from blogger-young to Porsche middle-aged as the transitional crowd piled in — lots of pretty-people downing the inevitable rainbow-hued drinks and the sound levels pegged up faster than a Robert Altman film.

I expected not too much from the OTOM kitchen. After the high style of the neighborhood and the unlikely pairings of youth/age, I had a hard time actually waiting for the food to arrive before my critique began. The expected dronish march of so-so appetizers-entree-dessert ritual seemed very likely. But I was wrong. OTOM really did well.

A very lovely salmon ceviche served on wonton chips was enlivened with citrus. There was nothing elusive; the flavors were positively bright and elegant. The Lyonnaise salad was unlike any — with a sort of frozen bacony-egg mixed into the escarole. Entrees also won me over by their intensity, bested by the barbeque pork belly, which peeled off porky flavor all over the plate. A real winner.

Very good, too, was the jambalaya, piqued by the andouille sausage into a fragrant and elliptical whole.The summer season is upon us again, youth demands its place, and OTOM is the right table — if only the curb wasn’t so high.

Pleadings:
OTOM
951 W. Fulton St.
(312) 491-5804

Court costs:
Appetizers $8-$12; Entrees $18-$26

Verdict:
3 Gavels

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