Closing Argument: Confronting race again

By Philip I. Harris
Jenner & Block

The election of Barack Obama as president has spurred new discussions about the state of race relations in our country. Some observers have suggested that the election of President Obama demonstrates that the United States has moved only inches away from a race-blind meritocracy.

I would not be so foolhardy to suggest that the election of a black president is anything other than a dramatic step forward. But does President Obama’s election mean that the diversity ”problem” in our law firms is closer to being ”fixed”? Having wiped away the tears that I shared with many who watched the inaugural day festivities, I remind myself that in our firms we have a long way to go.

If a true meritocracy now exists, then as I wrote in ”Confronting Race” in the July 2007 Chicago Lawyer, we would not question whether black lawyers stand on par with white lawyers intellectually. In a meritocracy, skin color would not influence the likelihood that an attorney would be given the opportunity to demonstrate excellence.

Since the publication of ”Confronting Race,” I have had the privilege of speaking across the country about race and opportunity in large law firms. I have seen how attorneys of all races in different places are seeking to build a more inclusive legal culture.

A few people challenged my premise, insisting that law firms care only about making money and that, as a result, access to opportunity is determined on the basis of merit.

When one looks at the continued underrepresentation of minority attorneys in large firm partnerships, however, it is easy to be discouraged. Although some large firms have hired more attorneys of color, blacks remain grossly underrepresented in partnerships and leadership positions. When it comes to who is representing key clients as lead counsel in important cases and transactions, it is clear that there is a long way to go.

In July 2007, I challenged firm leaders to take specific steps to move our firms toward a deep-rooted belief in racial equality. I suggested that we measure whether we have made tangible progress on Feb. 12, 2009 — the 200th anniversary of Abraham Lincoln’s birth.

Have we made tangible progress? Using some of my recommendations as a point of reference, it is useful to begin with what some large law firms are doing well: A majority of large law firms now have full-time diversity professionals who make recommendations to senior management.

Most large firms have diversity committees consisting of partners and associates and staffed by the firm’s diversity professional. In my July 2007 essay, I argued that a firm that values diversity should not delegate that responsibility to a committee. Instead, the managing partner and the principal managing body should assume direct responsibility.

More firms have implemented mentoring programs, and some senior leaders are making more of an effort to mentor and promote minority attorneys and better equip them to survive in a challenging environment.

Because some corporate leaders have made a compelling business case for diversity, law firms are making more of an effort to include diverse attorneys in business pitches.

But we are also falling short.

Attorneys who participate in the pitch ought to be assigned to the work when it comes in the door. There remains a disconnect, which is unfair to the attorneys of color who helped secure the business.

We resist acknowledging our reluctance to assign major responsibility to minority attorneys. Some firms, encouraged by a few courageous general counsel and other in-house leaders, are tracking the utilization of attorneys of color on major engagements.

The data are particularly meaningful when the firm measures the hours billed by minority attorneys who are acting as principal or lead attorneys in important engagements for the firm’s top clients. Unfortunately, many firms have attempted to meet diversity targets by staffing minority attorneys in relatively low-profile roles. That is an acceptable practice only if they are given the opportunity to handle higher-profile tasks as they progress.

Few, if any firms, use the compensation system to reward partners who staff attorneys of color on their cases and transactions or who diversify their practice areas.

Although many firms have instituted diversity awareness training programs for attorneys, I am unaware of a single firm that has figured out how to continue conversations about diversity throughout the firm. We will not be able to stop talking about race until we start talking about it candidly.

We need to talk about where we hire, who we hire, how we conduct our mentorship programs, how we staff cases and transactions, who we select to leadership positions, and how we incentivize behavior that promotes diversity.

And we need to look in the mirror and ask whether the culture of our profession and our firms makes it more difficult for minorities to move up the ladder than it is for white attorneys from backgrounds more familiar to leaders in our profession.

We need to develop structures that allow for ongoing dialogue on these topics, in mixed audiences and with agendas that include discussions about the business and strategic objectives of our firms. Your participation is crucial because we cannot implement change until we believe in change.

Becoming a trial lawyer

By Olivia Clarke

Fifth-year associate Julia Mano Johnson said the key to getting trial experience as a young associate is getting that first trial.

After that first one, partners recognize that the associate can handle the work, and they will typically seek out that lawyer for different trial teams, she said.

Johnson worked as a summer associate at Winston & Strawn, and joined the firm after graduation. When she started there as a lawyer, a partner remembered her skills from her days as a summer associate. He asked Johnson, who at the time was a first-year associate, to assist on former Gov. George Ryan’s trial. She initially worked on trial preparation, and then the case motion practice and witness preparation.

This led to other cases where she received even more hands-on experience. For example, as a fourth-year associate she worked on a patent trial where she was involved in all aspects of that trial.

”Once you get to the firm you need to do a good job, and be a good team member and be somebody willing to help,” she said. ”If you take on responsibility, and show some ownership for the cases you’re working on, people seem to remember that. It seems to resonate with the partners.”

Many new associates who want to be trial lawyers choose to start their careers at law firms rather than going to the public defender’s office or state’s attorney’s office.

For many of these associates the level of trial experience amounts to a matter of luck — getting on those cases that make it to trial. They often get trial experience by second-chairing a case, or working on a number of pro bono cases. Firms say they want their lawyers to first know the fundamentals so they will be ready someday to advocate for their clients in a courtroom.

Associates may face obstacles when trying to get trial experience if their firm doesn’t try as many cases as it used to, or if there is not enough work to go around for each associate.

Getting experience

Senior associate Mike Rohan said many new trial lawyers get a cold splash of reality when they get out of law school and end up doing document review for months at a time.

After graduating from law school, Rohan worked at Winston & Strawn for eight years. He handled mostly discovery, research, and status calls for the first few years.

After that, he earned more responsibility doing things like arguing motions and drafting pleadings.

During his second year he worked on his first trial, a federal perjury trial, and helped with research and setting up the PowerPoint for opening and closing.

Taking on pro bono cases gave him vital experience. During his fifth year, he and a sixth-year associate handled an attempted murder case — a partner advised them and a first-year associate assisted. They earned an acquittal on the most serious charge.

”With a larger firm there are certain client pressures,” Rohan said. ”[Clients] are paying good money, and they want an attorney with a certain level of experience. They are not willing to put that kind of money on the line and take a gamble with younger lawyers.”

About a year ago, Rohan made the decision to go to a smaller firm — the eight-lawyer law firm of McDonald & McCabe.

”I did my time at the large firm, and it was time to move on,” he said. ”Things are going well. I’m getting a lot more hands-on experience than I ever got as a senior associate at a large firm. But it’s still a matter of showing what you can do, and that never changes.”

C. Barry Montgomery, a founding partner of Williams Montgomery & John, said his firm sometimes takes smaller cases, even though they are not always profit-generating cases, because they provide a chance for associates to get in-court experience.

”There has to be a succession,” he said. ”I’m not going to be around forever, and that’s true with most firms where you have lawyers who grew up in the era that I did. They are beginning to die out and retire and their successors have not had the ability to try cases like my contemporaries did. It’s a problem and there’s no substitute for actual trial experience in many respects.”

Jenner & Block associates get trial experience through handling pro bono matters and cases worth less in terms of dollars; and through internal trial advocacy training programs, said Craig Martin, co-chair of the litigation department.

”If what you want to do when you grow up is handle the most complex commercial disputes in the country, this is the place to be,” Martin said. ”And how do we get you there? The way you do that is handling several different types of cases.

”If you have those types of experiences and have them as a young associate, a mid-level associate, a senior associate, you are going to start accumulating the kinds of experience necessary to transition to leadership roles in larger more complex business disputes, and that’s really what we do.”

Associates learn many fundamental lessons long before stepping into a courtroom, said Thomas Demetrio, name partner of Corboy & Demetrio.

Preparation is a major part of any trial. For example, he and associate Bill Gibbs have been intensely preparing for a February trial since October.

”The art of preparing for trial is the biggest and best experience he will take away from the trial after the jury reaches its verdict,” Demetrio said. ”There is nothing that will occur in the courtroom that should surprise either one of us.”

Once they start the trial, Gibbs will learn additional lessons as he observes Demetrio, and how he interacts with the judge, argues motions, and examines witnesses.

”I was a lawyer 20 minutes when I tried my first case,” Demetrio said. ”It was more back then a sink-or-swim experience. But all plaintiff law firms have smaller cases that for one reason or another we take, and for one reason or another don’t settle. Those cases, with out-of-court mentoring, supply these lawyers with the opportunity to think on their feet and experience the fun part of what we do.”

Gibbs, who started at Corboy & Demetrio in 2004, said he’s worked on 10 cases that went to verdict.

His training runs the gamut. He tried a case on his own as a third-year associate where he did everything from picking the jury to giving the opening and closing. And he’s had cases where he’s done the ”grunt work” — lining up witnesses, taking care of exhibits, and handling jury instructions.

”Most people I talk to are just now, we’ve been out four years basically, and they are just now getting the trial experience that I was lucky enough to have after being a lawyer for three months,” Gibbs said. ”I think that the focus of this firm is such that they are very attentive to the need to develop young trial lawyers. I think that the lawyers of this firm are just by nature teachers and mentors.”

The client

Matt Sullivan, a Winston & Strawn seventh-year associate, said once an associate successfully works on his or her first trial, the partners and even the clients see that he or she can handle the work and will enlist the associate on more cases.

For example, during a late September trial, Sullivan cross-examined a witness who negotiated the contract at issue. It helped that he had previously worked on pro bono cases where he did cross-examinations and questioned witnesses, Sullivan said.

”The partners here realize that we want to get experience and try to give us witnesses,” he said. ”But they have to go to the client, and the client’s question is going to be, ‘Has he done this before?’ To be able to say, ‘Yes, he’s done two cross-examinations before,’ or ‘He’s put on an expert witness before,’ makes the client feel comfortable about the associate taking an important role in the trial.”

Some clients do not want every case staffed with multiple partners who have partner-level billing rates, said Tom Frederick, chairman of the litigation department at Winston & Strawn. They do not mind putting an associate on the case, he said.

”I don’t think it is a hard sell, generally speaking,” Frederick said. ”I think clients are looking to have cases run efficiently. They don’t want all partners. Certainly [the clients] may want to know who the associate is. We have a number of examples where clients are really looking to have particular associates involved in particular cases when they know who they are.”

The best way for an associate to get trial experience is to act as a second chair on a trial, said Don Brown, a founding partner of Donohue Brown Mathewson & Smyth. The partner chairing the case must realize that the associate is there to participate, and not just to turn the pages of a document, Brown said.

The firm’s goals in having that associate second chair the trial, he said, are, ”One, it’s to assist a trial lawyer, who has a myriad of details to deal with; two, to help the client, who would undoubtedly benefit from having another attorney involved in the overall handling of the case; three, it ensures the continuity of experience flowing to the younger people from the opportunities doled out for individual cases proportionate to experience and confidence level.”

Clients sometimes do not want a second lawyer working on their matter. In some situations the firm will still put an associate on the case so he or she can learn and help the partner, even though the firm cannot bill the client for the associate’s work, Brown said.

”[Clients], most of the time, end up dictating who can be the primary attorney,” Brown said. ”You might have somebody who by virtue of experience can exhibit enough to have the client accept them as the primary lawyer.”

The training

Thirty-one years ago a group of Kirkland & Ellis lawyers created the Kirkland Institute for Trial Advocacy (KITA), which consists of programs that teach associates trial advocacy.

A major part of KITA is a two-day jury trial where associates work in teams to try a mock lawsuit in front of a live jury of non-lawyers. Senior litigation partners serve as judges, and provide guidance and critiques throughout the experience.

This program was held in January, and 238 associates, 48 partners, 119 actors, 116 jurors and 81 staff people participated.

”As far as litigation goes, your only reason for existence is to ultimately stand up in a courtroom and be somebody’s champion,” said Steven D. McCormick, a partner who heads the KITA program and is known as ”the mayor of KITA city.”

”In general, associates get remarkably good training in this area during their first halting steps in law school. This is a long journey — a very, very long journey. None of us ever arrives,” he said. ”Every great trial lawyer in history has only ever been on the journey. And so the law schools do a great job in providing that first step. If you are really going to be a first-class public advocate, that’s something you’ve got to work on all your life.”

An associate may not be standing up in a courtroom for several years, but that doesn’t mean he or she shouldn’t train for that moment, he said.

”It’s like saying I don’t expect to play in competitive college tennis until I’m 18 so I won’t start practicing until I’m 17,” McCormick said. ”It ain’t going to happen. If these people are going to be ready to stand up as Kirkland lawyers and do a great job in the courtroom then you’ve got to start day one, you’ve got to start before day one.”

Meckler Bulger Tilson Marick & Pearson brought in James F. Henry, a retired Cook County circuit court judge, as of counsel to mentor and help build the associate training program.

Henry forged a partnership with Chicago Volunteer Legal Services so the firm’s associates could work on pro bono cases that will give them trial experience.

He also mentors the firm’s associates. He may read or edit their briefs; or give them feedback from a judicial perspective after they argue their cases in front of him.

”That’s been an unbelievably helpful experience because I’m not an evil ogre. They are not arguing before the partner who has a lot of pressure on him or her,” Henry said. ”It makes them feel a little bit at ease. So much of trial work is having confidence. What I try to instill in them is that confidence.”

Jenner & Block associates get trial experience early on, often in their first year, by doing pro bono work, said David J. Bradford, co-chair of the litigation department.

”Generally, in the pro bono program we really encourage attorneys to take a lead role as opposed to a support role,” Bradford said. ”They may represent someone in immigration court. They will have a partner supervise and work with them on the argument.

”We really teach, first of all, how to think strategically about a case, starting from what the jury instructions are going to look like, to being able to say the closing arguments. There are very few surprises in a well-prepared trial.”

Obstacles

Some lawyers say associates generally do not get as much hands-on experience in large firms as they do in smaller firms.

”In the large firms that have a litigation department it’s virtually impossible to get a case to trial,” said Montgomery, from Williams Montgomery & John. ”Even many of the partners who call themselves trial lawyers have rarely or if ever tried a case to verdict because the rate structure is very prohibitive. There is no question it is a real problem, and real trial lawyers are becoming a dying breed.”

In large firms with large cases, the clients want senior lawyers to try their cases, which often leaves fewer opportunities for less senior lawyers, he said.

But many lawyers in large firms adamantly disagree. Frederick, from Winston & Strawn, for example, said there are many fine smaller firms with superior lawyers. But, generally, larger firms have access to a greater pool of talent and high-caliber, high-quality people.

Associates in these larger firms have more opportunities to work with and learn from these types of lawyers, he said.

”Certainly at some smaller firms you may get into court earlier, but they are going to be on smaller matters generally,” he said. ”Just speaking to our own experience, we have had at least five associates I can think of off the top of my head who left our firm for smaller firms in the last few years and have returned. Maybe they got to go over to court for status calls, but they weren’t getting the type of work that was as interesting and exciting as they were getting at our firm.”

Bradley Yusim, a Jenner & Block associate, said he chose a large firm because he wanted to work on complex civil litigation. Since he started there in 2002, he’s directly participated in seven trials and arbitration hearings and has learned many lessons.

”A great deposition goes a long way toward an effective cross-examination at trial,” he said. ”Excessive preparation is the key to doing examinations during a trial. You have to know every document inside and out. If there is one lapse, one document that you don’t know about, that can create a lot of problems.

”I’ve been able to do what I wanted to do, which is be involved in sophisticated cases and do actual trial work. At the same time, at Jenner, I’ve been able to do a lot of pro bono work.”

Some lawyers say more cases settle today — meaning less courtroom experience for associates.

”I think a lot of it is being at the right place at the right time, quite frankly,” said Claire Lunardini, a ninth-year associate at Williams Montgomery & John. ”It’s hard to get the experience to the extent that the reality is a lot of cases end up getting settled. I had a lot of cases settle on the eve of trial. It’s hard only to the extent that there is not a lot of it to go around. You’ve got to grab it while you can.”

Demetrio, from Corboy & Demetrio, said the business has turned into a discovery nightmare — with depositions taken when they shouldn’t be taken. The day-to-day activities of a trial lawyer often do not exist in a courtroom.

”I know when I interview law clerks and prospective young lawyers they all inevitably say, ‘I want to be a trial lawyer,”’ Demetrio said. ”My good sound advice is, maybe they should start off in the state’s attorney’s office or public defender’s office because their cases get to trial in greater volume.

”[Prospective trial lawyers] all have recently had mock trials, moot court, and trial advocacy courses. They’ve had a 711, which is supreme court permission for law students to be in the courtroom. They are very enthusiastic, but then the reality sets in, ‘Boy, I haven’t been in a courtroom to try a lawsuit’ and it’s very frustrating.”

Moonlighting in another realm

By Maria Kantzavelos

By early afternoon on an a recent weekday, the criminal defense lawyer had finished his matters at the Criminal Courts Building and wrapped up his visits with clients who were being held in Cook County Jail — one of them accused in a methamphetamine case, the other man charged with attempted murder.

From the modest office space he rents on LaSalle Street, the 37-year-old lawyer who spends most mornings reporting to courthouses, closes shop and, with a few computer key strokes and mouse clicks, steps into his fanciful second life as Monday Beam.

There, the sleek Beam in dark glasses and high-end designer ”Armidi” suits can execute a Spider-Man-like landing after flying to and from different regions.

The Chicago lawyer is among tens of thousands of users who appear online in the form of graphic characters in the virtual world of Second Life, where they can form relationships, hold down jobs, make deals, or trade products and services — created by and for fellow avatars — for a fictional currency convertible to real-life dollars.

”I’m very particular about typos,” the sole practitioner said in an interview with Chicago Lawyer, while text-chatting with a ”resident” who works for Beam as a real estate agent, selling parcels of his virtual land to other characters. ”It’s part of Monday Beam’s personality. I call everyone Mr. or Ms. in the game — I treat them with respect. He’s like a scholar and a gentleman type of guy.”

The avatar named Beam is also of the entrepreneurial and business-savvy sort.

Along with operating a law office from the top floor of ”Beam Tower” — located on his own ”ECHo Island” — where visitors can hear the streaming, soothing sounds of splashing waves and singing birds from a lobby equipped with a telescope for star gazing and other objects that animate fellow avatars as they wait, Beam runs multiple businesses that — all told — have generated an amount in fictional Linden dollars that could reach the equivalent of his real-life legal income in a few years.

”For me, that has very real ramifications. It’s no longer a game at that point. It becomes a business venture,” said Beam, who is also the creator of TORN, a designer clothing line for consumer avatars, and MODA, a furniture line with a ”minimalist” touch.

Beam the lawyer said he has some ”heavy-hitter” Second Life clients who have quit their real-world jobs, having generated enough of an income through in-world transactions to afford to work solely in the virtual world.

”I own a handful of islands,” he said. ”I have clients who own a hundred islands. At $1,000 apiece, that’s 100,000 U.S. dollars that they spent for these islands. But then they go and break them up in little parcels, sell them, and make a profit.”

What he is calling an island is not necessarily land surrounded by deep blue water in some exotic, tropical place. But it can be transformed into just that if its owner so desires, even though the crashing waves are merely pixels dancing on a computer screen.

An island, or sim, in Second Life is essentially online server space.

”You’re buying server space, so you could build and create on it,” the lawyer said. ”It’s like having my own domain on the World Wide Web. Except that, as opposed to being a flat Web page you scroll up and down on, this virtual domain — in the form of a sim — is three-dimensional in nature. I can literally walk through, and fly through, 3D virtual space.”

For the 2000 graduate of The John Marshall Law School, who paid much of his way through law school by developing websites for companies, his technical background serves him well in an online social arena where its participants are the creators of nearly all the content that makes up the ”metaverse.”

As part of his Second Life law practice — in which he acts mostly as a mediator in land disputes, or in disputes between avatars over allegations of copyright infringement, piracy or theft of creative content — the lawyer said he charges virtually nothing for his services (which are ”fictional,” he stresses) in comparison to his real-world legal fees.

An initial consultation with Beam — in a virtual world where no official court system exists — costs a nominal 1,000 Lindens (about $4). Beam said he typically charges an additional 30,000 Lindens (about $100) to carry out an in-world arbitration or mediation.

”It’s a fraction of a fraction of a fraction of what I would charge in real life,” he said.

Still, the Lindens can add up, especially with digital hands in multiple business ventures, like his land sales, and the car lot that features the Monday Beam signature Ghost convertible, which seats four avatars, and drives and flies with jet-propulsion sound effects.

On that recent afternoon from his LaSalle Street office, the lawyer took a tally of how many Lindens he had accumulated since he logged off the night before. Checking out his in-world earnings, he said, is a typical start to Beam’s day.

Nearly 20 inquiries — note cards placed on his virtual law office desk with a mouse click — had landed in his in-box from avatar clients or prospective clients, who paid the consultation fee when they clicked on the door.

In exchange for those Lindens, Beam is expected to review the inquiries and offer brief responses to a range of questions, like the one asking him to analyze a claim from a woman who registered a real-life trademark on a business name used to operate a social networking community in Second Life, and later discovered several parties using the same mark there.

In addition to the Lindens he accumulated in consultation fees by that recent afternoon count, there were the Lindens generated overnight by Beam’s business ventures — the sales of shirts, shoes, or dining room tables that animate avatars to look like they’re eating.

”I have 90,000 Lindens — that’s $300 that came in since last night,” the lawyer said. ”I can take this and sell the license to use these Lindens, which carries value in the real world, on something like eBay. Or, I can use the exchange and convert it to real-life money and, therefore, deposit it into my bank account.”

Using 3D animation programs, Beam has a whole repertoire of postures, stances and gestures — animations his creator tried to model after his own real mannerisms that come out in real-life court proceedings before a jury or judge, or during his cross-examination of a police officer.

”When you confront an avatar for copyright infringement, in that exchange of words and confrontation between avatars, you have these psychological gestures that are used — posturing,” he said.

In a copyright infringement matter, what’s typically stolen and copied is the ”code, or prim design — cubes and shapes you shift and manipulate in a game” to create objects like cars that move a certain way, with certain effects that might sound like screeching tires. Or, the shapes may become fire pits used by avatars at campsites, or skin that can be placed on an avatar to create a more realistic appearance.

In one of the first of his many legal ventures as Beam, the virtual lawyer was hired in 2007 by a group of ”residents” who claimed they were wrongfully evicted from parcels of land they purchased on a private island known as ”The Tropicana.” Since the settlement of that dispute, Beam said, he has handled numerous land disputes in the virtual world.

”The Second Life terms of service say the estate owner has the liberty to revoke or reclaim that land and, usually, it’s disclosed in a covenant,” Beam said. ”And, therein lies the dispute. They bring me in to help get the land or money back.”

Along with his role in business transactions, Beam plays mediator in tumultuous divorces and heated child-custody disputes between avatars. Well, the ”role-play” disputes are really over so-called ”prim” babies, a digital baby who is crafted by Second Life users.

”They’re disputing with emotion and bravado over who will have custody of this, essentially, fictional child,” the lawyer said. ”It’s entertaining on one hand, but on the other hand, you’re dealing with people who clearly have real emotions invested in this. It becomes very bizarre, but it’s also very real.”

In a sense, said the lawyer aka Beam, the versatile second life he has created for himself isn’t as far-fetched from his real life — sans his avatar’s spacious top-floor law office, the jet and helicopter that can take off from and land on the skyscraper’s rooftop garden, his boats and yachts, and the multiple buildings and islands he owns in the virtual world.

”I’ve got various business ventures [in Second Life] and it’s not unlike my real life,” he said. ”In real life, I’m a criminal defense attorney and I do other areas of law, but I also run a web publishing business. I published a book, so I sell books. I have an agent for film, so I do fledgling acting here and there. I do photography. ”

Monday Beam was born into Second Life on Jan. 14, 2007, when his creator — who asked Chicago Lawyer to withhold his real-life identity, in order to maintain the role-playing aspect of his participation in-world — installed Linden Lab’s Second Life software on his personal computer. His avatar’s name was a fluke: He chose Beam from a list provided to Second Life newcomers, and since the first name Moon was already taken, the lawyer settled on Monday, which when translated to Spanish means day of the moon.

Like the masses who have set up Second Life accounts since its opening in 2003, he logged in with a default avatar for starters, and used a mouse and keyboard to explore the immersive, virtual landscape — flying and ”teleporting” his way through the so-called metaverse.

”It’s just incredibly large,” he said. ”Just like the Internet, where you can visit any website you want, in the game you can visit any island you want.”

The lawyer said he felt compelled to check it out, after learning about the avatar named Anshe Chung, who was featured in early 2006 on the cover of Business Week, which reported later that year that the real-life woman behind the avatar had apparently become the first millionaire in Second Life — millionaire in real U.S. dollars.

He was learning to craft his character to look more like himself, using Second Life’s 3D modeling and scripting tools, when he was approached by an avatar who offered to sell him some land.

”Of course, I felt like I was being hustled,” the lawyer said. ”Just on a whim, I decided to do it.”

About two years later, he said, the $20 he spent on that first virtual land purchase was the only real money he has invested in the virtual world.

”From that point forward, every Linden dollar I’ve spent in this game has been earned in the game. It is above and beyond what my costs are to play the game,” he said. ”I bought all my islands with in-world revenue and I pay the monthly fees with in-world revenue.”

Early on, he said, he called the Attorney Registration and Disciplinary Commission for guidance.

”There are really no rules that pertain specifically to when you’re dealing in a role-playing environment, with fictional characters or aliases,” Beam said. ”What came out of that discussion was, if in fact you’re offering real-life legal services and getting paid U.S. dollars in the state of Illinois, then there is an attorney-client relationship.”

But, what about when you’re trading a license to use a fictional currency called Linden?

”The rules of ethics are not quite as clear-cut,” Beam said. ”I prefer to err on the side of caution, and was instructed that what you should do is, make very clear what is and what is not real-life representation.”

That’s why, the lawyer said, he follows a rule of thumb spelled out in his terms of service, available for visitors to read before entering Beam’s virtual office. His interactions with clients in Second Life, are considered ”fictional in nature, for entertainment purposes only.”

That is the claim, unless the role-playing rises to the level of legitimate business for which real-life representation is necessary. It is only then, Beam said, that he discloses his real-life identity and executes a retainer agreement to create a legally binding attorney-client relationship.

Only about a dozen of his many dealings in Second Life have evolved into a real-life retainer, he said. For example, he has executed a retainer for drafting a contract to operate in Illinois, or to counsel an avatar client on registering a trademark for copyright.

But Beam said none of the virtual world disputes he’s handled to date has risen to the level of real-life litigation, mainly because of the limited financial damages involved. That fact, the lawyer said, and the prospect of a lengthy and costly legal battle, provide an incentive for people to resolve their disputes ”in-game.”

That’s where Beam enters the scene, serving as a ”liaison, a mediator, a communicator, a counselor — a friend,” the lawyer said.

And, as a user who has spent long hours tapping into his graphic design skills and imagination to create all the content that make up Monday Beam’s law office and base of operations — like the grand piano that allows his avatar to appear as an entertainer of another sort — the lawyer is able to relate to his in-world clients.

”There’s a psychological attachment that people get to their virtual objects,” he said. ”If I were to somehow lose that piano, or it were to be deleted on accident, there’s a sense of loss.

”It’s not real, but you created it, you owned it — it’s my property. Although it’s bits and bytes on the computer, it’s intellectual property. It’s still something I did and created.”

Opening Statement: A rocky interpretation

By Julian Frazin
Michael Best & Friedrich – Entertainment Critic

May it please the court …

Despite a life filled with personal family tragedies resulting in years of depression and alcoholism, Eugene O’Neill became and remains, perhaps, the greatest American playwright of the 20th century.

His record of four Pulitzer Prizes for drama and one Nobel Prize for literature is unmatched. Such masterpieces as ”Long Day’s Journey into Night,” ”The Iceman Cometh,” and ”A Moon for the Misbegotten,” are the sterling examples of his work and should literally speak for themselves.

But apparently many of today’s directors are not inclined to let them do that, but rather are driven to add their own spin, through staging and special effects, to O’Neill’s classics. A recent example is the Goodman Theatre production of ”Desire Under the Elms,” under the direction of Robert Falls — the centerpiece of Goodman’s ”A Global Exploration of Eugene O’Neill in the 21st Century,” which also features productions of ”The Hairy Ape” and ”The Emperor Jones.”

Written in 1924, ”Desire” was set by the author on a Connecticut farm in the middle of the 19th century. In Falls’ vision, with a set of huge boulders strewn across the stage, it is impossible to determine where and when the action takes place. Missing are the delicate elm trees O’Neill imagined or any hint of an intimate setting for this tale of forbidden love, lust, and jealousy. As far as the eye can see, all is rock.

Perhaps it was Falls’ intention to show this as a universal story that could take place anywhere, regardless of time or space.

Huge rocks hang down precariously from the sky hovering over the barren landscape, as an old frame farmhouse is suspended ominously in mid-air, giving the eerie impression that all is occurring in some mythical netherworld. With this symbolic staging, he sets a pitch of Biblical and Greek tragic proportion. At the top of the show, when two men enter, slowly dragging a load of rocks from one pile to the next, you are aware that you, indeed, are in some kind of hell.

The two men are brothers, Simeon (Daniel Stewart Sherman) and Peter (Boris McGiver), who live on a desolate farm with their, father, Ephraim Cabot, (Brian Dennehy) a 75-year-old controlling patriarch, from whom they had hoped to inherit the property.

But now these expectations have been severely diminished, first by their younger stepbrother, Eben (Pablo Schreiber), the son of Ephraim’s late second wife, and now by the appearance of Abbie Putnam (Carla Gugino), Ephraim’s new bride, a beautiful and vivacious younger woman with whom he intends to have yet another child.

The discouraged brothers, after receiving money stolen by Eben from his father, agree to seek their fortunes elsewhere and take off for the promise of gold in California. Meanwhile, Eben, who still mourns the death of his own mother, sees his stepmother as an immediate rival.

The situation turns when Abbie, trying to comfort her stepson from the loss of his mother, finds her passions awakened and embarks on an illicit affair with Eben.

Abbie becomes pregnant and has a son, who Ephraim mistakenly believes to be his own, overjoyed in naively thinking that at his advanced age, he still possesses the ability to father offspring.

But when the relationship between Eben and Abbie becomes strained, as he realizes his inheritance is in even greater jeopardy, Abbie concludes that only way to restore his love is by murdering her child.

A tyrannical and controlling patriarch, jealousy between brothers, greed, deception, lust for another man’s wife, an adulterous affair bordering on incest and infanticide! These themes alone might justify the huge proportions of Falls’ imagery.

Yet, a director’s use of such profound symbolism can sometimes distract from, rather than enhance the production and its players. Brian Dennehy is a powerful performer, as evidenced by his previous starring roles in Goodman’s productions of ”Death of a Salesman” and ”Long Day’s Journey into Night,” but the strength of his performance in ”Desire” was diminished by being played in front of a huge rocky terrain that literally dwarfed this magnificent actor.

Similarly, the extraordinary work of the lovely Carla Gugino, along with the sensitive shadings of Pablo Schreiber, was often lost against the stark backdrop that provided them with no opportunity for intimacy. The actors often found themselves competing with the complications of the scenic design.

If it was Falls’ purpose to concentrate on the mythical aspect of this play, then perhaps he succeeded. But O’Neill would not have been pleased. He loved those elm trees.

I rest my case.

Final Verdict:
”Desire Under the Elms” — 3 Gavels

Counsel’s Table: Where I take my friends

By Russell B. Selman
Katten Muchin Rosenman – Restaurant Critic

Each time I bring my lawyer friends to Mixteco, everyone loves the place. And they are not a happy group.

After years of easy money, the law business seems to be coming apart. And, for me, the real mystery is how all of us have for so long been blind and dumb to the ego-death of being associated with what was the highly lucrative business of being at the center of nothing at all. The only way I can confront the painful paradox is while enjoying good food, and nothing beats a good tamale’s ability to return me to my senses.

For me, the real mystery is why so many years went by while we accepted the managing partner’s premise that their fellow partners are clueless. We didn’t question and allowed our firms to double-down on practices (and people) that are incomprehensible and collapsed. (Just what is a mezzanine loan, anyway?) But when a person gives another person such great authority for determining ”what’s the truth” I suppose we are all drinking the same Kool-Aid and deserve to be seen and not heard.

Being seen and not heard is not a fair characterization of the lawyers I know. We have taken one of two routes: either run your own firm where you are responsible for your own small-minded and knuckle-dragging attitudes and mistakes; or join a mega-firm where often (too often?) the operation resembles a pandemonious condominium association where you have your own space, but your neighbors believe they have full rights (and obligation) to tell you how you should do things.

Telling such busybodies to mind their own business is fruitless as they will just cut you out of decisions in a graceless fashion and you get resigned to it (or, increasingly, go insane which will be seen as phlegmatic acceptance). About the only reality that seems to matter to me anymore is that I want to do my work well, and I do not concern myself with whether the firm makes any sense.

Such a reasonable perspective informs the professionalism of the chef/manager at Mixteco. This is a very small place, unadorned by any consideration of decor. Mixteco simply serves very good food, which I like and trust enough to bring my friends to. I believe that’s the highest compliment.

Mixteco’s chef seems to love to cook. Yes, he is good at it. But, more important is that he has an authenticity beyond being a Food Channel recognized expert.

The food is expressive of the person and there is just no missing the authentic interest and casual expertness of the preparations.

(For example, we all know lawyers who are expert technocrats but we would not necessarily want them to advise our family on an important matter. Instead, we look to those who are well-rounded, knowing and passionately informed.)

At Mixteco, there is an assumption that the diner has an expectation that the food will be carefully prepared. For me, this expectation is a quiet and respectful promise that the chef cares. And such an intimate compact binds the diner to the food in an active and respectful dialog. (When was the last time you recall your partners going to such lengths?)

Taking all of these heady and somewhat elusive qualities to the plate is more than simply a listing of ”what I ate,” but this is a food review (yes, really it is!) and therefore, it is essential.

Here goes: the corn tamales are wonderful with an extended creamy/spicy flavor. It’s as if the corn is still a living thing until moments before it was plated and then disappears into your mouth. The tamale is alive the way really fresh sushi is alive and the accompanying sauces/spices seem like what corn was intended to be when freshly husked. For me, this entirely pleasurable flavor cannot be improved upon. The chef seems both wholly absent and fully present in the way of a true expert who is totally likable.

The magic extended to the three sopes: Chicken in red mole, pork in a tomatillo salsa and mushroom is pasilla chile sauce. All three are luxuriously flavored. Like three amigos who are eager to please, the empanadas are very good with the cheese being my favorite. Their flaky crust is reasonably comparable to what you would get at a really good French bakery. A smoke cheesy croissant can, and did, make me lose focus for a moment.

There is really no reason to say which of the several entree/protein choices is best. All are great and in a sense are individually irrelevant so long as you have the mole sauce on your plate.

The mole has the tranquil effect of transporting me into a languid afternoon atmosphere with a setting sun and the exciting promise of a romantic evening. Take a corn tortilla out of the basket as your ticket and get drunk and happy on the mole transit to a better place.

Pleadings:
Mixteco Grill
1601 West Montrose Ave.
773-868-1601

Court Costs:
Appetizers: $6-8
Entrees: $18-20

Rating:
4 Gavels

Info Tech Law: Bankruptcy and the software license

By Alan S. Wernick
Wernick & Associates

Most companies have software they license for business critical applications.

What happens to the business (licensee) if the licensor of the computer software enters bankruptcy? Does the business have to stop using the software altogether or have some restrictions applied to their use? If the business fails to immediately stop using the software, will the bankruptcy trustee for the debtor/licensor pursue the business for infringement damages?

Bankruptcy is sometimes the ”exit strategy” for some businesses, including software licensors. And, once the licensor’s bankruptcy petition is filed, it will only be a matter of time before the licensees feel the impact of that filing.

The drafter of a software license agreement must look ahead in the transaction and consider where the parties want to be in the event of bankruptcy, and then properly weave those considerations into the fabric of the agreement. In the event of the licensor’s bankruptcy, the licensee must act precisely and without hesitation to fully avail itself of the benefits of Sec. 365(n) of the Bankruptcy Code.

Under Sec. 365(n) of the U.S. Bankruptcy law (11 U.S.C. §365(n)(1)), a licensee has the option of (a) terminating the license agreement, if rejection by the trustee amounts to such a breach as would entitle the licensee to treat such contract as terminated by its own terms, applicable non-bankruptcy law, or an agreement made by the licensee with another entity, or (b) retaining the licensee’s rights (including the right to enforce any exclusivity provision of such license agreement, but excluding any other right under applicable non-bankruptcy law to specific performance of such contract) to the computer software, subject to the limitations set forth in Sec. 365(n).

The license agreement should address the rights the licensee will have in the event of the licensor’s bankruptcy. However, when the license agreement is silent on the issue of the licensor’s bankruptcy, there may be other provisions of the agreement that will impact the analysis and the outcome as to whether or not the licensee may continue to use the software for the licensee’s business.

When an owner of certain types of intellectual property comes under the protection of the Bankruptcy Court, the rights of licensees are at risk with regard to that intellectual property (including trade secret, invention, process, design, or plant protected under U.S.C. Title 35; patent application; plant variety; work of authorship protected under U.S.C. Title 17 - such as computer programs; or mask works protected under U.S.C. Title 17; to the extent protected by applicable non-bankruptcy law). In the past, that risk might clearly have been that the licensee would lose its license rights to the licensed technology, as was the case in Lubrizol Enterprises Inc. v. Richmond Metal Finishers, Inc., (4th Cir. 1985).

However, Congress addressed the Lubrizol problem by enacting the ”Intellectual Property Bankruptcy Protection Act of 1987 — An Act to Keep Secure the Rights of Intellectual Property Licensors and Licensees Which Come Under the Protection of Title 11 of the United States Code, The Bankruptcy Code.”

But, as seen in In Re El International (U.S. Bankruptcy Court for the District of Idaho, 1991), a licensee of computer software failed to retain its rights to licensed software when its licensor went into bankruptcy. Thus, even though Sec. 365(n) exists in the bankruptcy statutes, the licensee may still lose, or have limitations placed upon, its licensed right.

Appropriate language for addressing the bankruptcy issue in a software license agreement will depend upon the particular facts of the transaction. One drafting tip may be for the software license agreement to provide that ”— failure by the Licensee to assert its rights to ‘retain its benefits’ [to the intellectual property encompassed by the software], pursuant to Sec. 365(n)(1)(B) of the Code, 11 U.S.C., under an executory contract rejected by the trustee in bankruptcy, shall not be construed by the courts as a termination of the contract by Licensee under Sec. 365(n)(1)(A) of the Bankruptcy Code.”

If the licensee enters into bankruptcy, the question arises as to whether the trustee for the debtor/licensee can assign the software license as an asset of the debtor.

This analysis will depend on several things including whether or not the license is an exclusive or nonexclusive license, and how the issue of assignment is addressed in the license agreement. The few cases that have examined the issue of assignment and assumption of a software license agreement in the bankruptcy context have turned to the copyright law analysis of the issue.

The bottom line of the licensee’s failure to take appropriate action in the event of the licensor’s bankruptcy may result in the licensee’s loss of its rights to the licensed technology. The licensee must not procrastinate when faced with rejection of an executory contract. Under Sec. 356(n) of the Bankruptcy Code, it must proceed promptly to assert its rights under this provision to retain its rights to the software covered under the agreement or, alternatively, pursue its monetary claims provided for in the contract.

© 2009 Alan S. Wernick

All in the Family: Abatement of support

By Daniel R. Stefani
Katz & Stefani

With more and more obligors of child support and maintenance losing their jobs, the challenge for the divorce courts is how to protect the obligee ex-spouse and minor children without unfairly punishing the obligor ex-spouse.

When an obligor ex-spouse becomes unemployed, upon proper petition and notice, the court will examine in part the circumstances leading up to the employment termination. Assuming the obligor ex-spouse did not voluntarily leave the employment, the court is often presented with the obligor’s motion to modify the child support obligation downward or the obligee’s petition for adjudication of indirect civil contempt.

Section 510 of the Illinois Marriage and Dissolution of Marriage Act allows for such a modification. At first blush, it would seem fair to give the obligor ex-spouse a modification downward, assuming there is no severance package or other investment income that could be used to set a support amount.

However, temporary abatement of support is another remedy available to the court that is intended to strike a balance between being unfairly oppressive to the obligor ex-spouse (such as a contempt finding) and protecting the interests of the obligee ex-spouse and minor children.Supreme Court Rule 296(f) states: (f)Petition for Abatement. ”Upon written petition of the obligor, and after due notice to obligee (and the Department of Public Aid, if the obligee is receiving public aid), and upon hearing by the court, the court may temporarily reduce or totally abate the payments of support, subject to the understanding that those payments will continue to accrue as they come due, to be paid at a later time. The reduction or abatement may not exceed a period of six months except that, upon further written petition of the obligor, notice to the oblige, and hearing, the reduction or abatement may be continued for an additional period not to exceed six months.”

The Supreme Court Rule 296(f) Committee Comments, in part, state: ”This paragraph applies only to the short-term inability of the obligor to pay support due to a temporary layoff from employment or other factors. It recognizes that obligors often become temporarily unemployed, rendering them unable to meet their support obligations. This provision is short of a written modification of the Order for Support. It allows the obligor to petition the court, prior to the filing of a petition for adjudication of contempt, for an opportunity to repay those amounts in small increments after employment is regained.”

Supreme Court Rule 296(n) states: (n)Effective Date. ”The Supreme Court will authorize experimental sites to operate pursuant to the rule, in counties in which both the child circuit judge and the clerk of the circuit court have agreed to undertake the experimental use of the procedures contained herein, and have jointly sought the Court’s permission to do so, by filing a petition with the administrative director.”

So far, only four downstate counties have formally applied and are operating under Supreme Court Rule 296(f), namely, DeWitt, Douglas, Moltry and Piatt counties.

No counties have applied since 1997. Counties such as Cook, Lake, and DuPage, not formally operating under the Rule 296(f) program, are authorized and routinely enter abatement orders pursuant to Supreme Court Rule 296(f) under the authority of two 4th District cases. In Re Marriage of Fink 275 Ill.App.3d 960 (Ill.App.4 Dist. 1995); In Re Marriage of Horn, 272 Ill.App.3d 472 (Ill.App.4 Dist. 1995) (although county had not petitioned the Supreme Court to adopt all provisions of Rule 296, the existence of the rule provides authority for any court to do the same in appropriate circumstances irrespective of whether the county is operating under the broader provisions of the rule).

However, the applicability of Supreme Court Rule 296(f) has been recently questioned by the 3rd District Appellate Court in the case of In Re Marriage of Reimer, 2009 WL 160915 (Jan. 14, 2009). In Reimer, a Will County trial court ordered payment of child support arrearages based on an order abating the ex-spouse obligor’s payment of child support. The 3rd District Appellate Court declined to follow the 4th District’s opinions of Fink and Horn, stating that the 4th District’s holdings simply ignore the expressed language of Rule 296(n).

Consequently, the 3rd District reversed the trial court and remanded with instructions for the trial court to conduct a hearing in order to determine what effect, if any, the abatement order had upon the support order at issue, specifically stating that the finding should be made absent any consideration of Supreme Court Rule 296 due to the fact that it was not in effect in Will County at the time of the abatement order or at the time the pleading seeking to collect the child support arrearages was filed.

Allowing the obligor to abate his or her support obligation is an important tool for divorce courts especially in these tough economic times. As the Reimer court suggests, the time has come for our supreme court to examine the overall applicability of Rule 296.

7th Circuit Judge Gives Insider View of Court

By Lindsey Marcus, special to the Chicago Lawyer

Shortly before Judge Diane Wood was confirmed as a member of the U.S. Court of Appeals for the Seventh Circuit in 1995, then-Chief Judge Richard Posner gave her some advice.  Being on the court of appeals, he said, is like being married in a society that doesn’t allow divorce: the judges are stuck with one another.  This understanding has helped Judge Wood and her colleagues maintain civility even when their views diverge because, as she pointed out, they know they’ll be working together for a long time.

In a wide-ranging discussion on March 10 hosted by the Chicago Lawyer Chapter and the DePaul College of Law Student Chapter of the American Constitution Society, Judge Wood said that the ability of the Seventh Circuit judges to focus on the merits of each case helps the court act effectively both as individuals and collectively.  As a result, the Seventh Circuit does not face the contentiousness that other circuit courts have, she said, even when the court is dealing with “hot button issues.”

She also praised the Seventh Circuit’s process for voting on cases as being “close to the ideal.”  For example, after en banc arguments, the judges go around the table twice, from least to most senior judge, saying what they think about the case but without saying how they’ll vote.  This process encourages an exchange of ideas that helps the judges cast well-reasoned votes.

Judge Wood added that the longer she has been on the court, the clearer it has become that it is unwise to presuppose how her colleagues will vote.  “People surprise you all the time,” she said.

Judge Wood also told the nearly 100 audience members that the Seventh Circuit is effective because it is a relatively small group (11 active and four senior members) and because of certain processes the court has in place to “help us function as a court,” she said.  For instance, the Seventh Circuit, unlike some other circuits, does not announce the three members of a panel until the day of the oral argument.  Judge Wood said this practice forces lawyers to prepare their arguments for the court as an institution, rather than for specific judges.

A former dean and professor at the University of Chicago Law School (she is still a lecturer there), Judge Wood was asked what law schools could do better.  She suggested that changes to legal writing programs could help law students become better writers, and noted that she sees a lot of poorly written briefs, even at the appellate level.

She also touched on a number of major issues facing the justice system, including internet crime, immigration appeals, and the so-called “vanishing trial.”  In addition Judge Wood explained that since the appellate courts cannot decline to hear appeals, they see the full range of problems in the justice system.  As a result, she said, the appellate courts quickly become aware of pressing legal problems, while the U.S. Supreme Court may take longer to address an issue because it has a much smaller docket and can decide which cases to take.

Brian Havel, associate dean and professor at DePaul College of Law, introduced Judge Wood.  He invited her to speak at DePaul again in the future, noting their shared interest in international law.
To find out about other upcoming ACS events, visit their Web site.

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