Featured Guests
Clare McWilliams

Judge Clare McWilliams was elected to the Circuit Court of Cook County, Chicago, Illinois in November, 2004 and is...

Jayne Reardon

Jayne Reardon is the Executive Director of the Commission on Professionalism to the Illinois Supreme Court. Prior to that,...

Your Hosts
Jonathan Amarilio

Jon Amarilio is a partner at Taft Stettinius & Hollister in Chicago. He represents individuals, small businesses, state and...

Chastidy Burns

Chastidy Burns has been an Assistant Public Defender in the Law Office of the Cook County Public Defender since...

Episode Notes

From presidential politics to internet trolls, our society seems to be more uncivil now than ever before. Lawyers, in particular, struggle with incivility in the profession and get a bad rap in the eyes of the public. What can we do to turn things around and hold ourselves to a higher standard? Our guests Jayne Reardon of the Illinois Supreme Court Commission on Professionalism, and the Honorable Clare McWilliams of the Circuit Court of Cook County, chat with hosts Jon Amarilio and Chastidy Burns about current societal trends, best practices for appearing before the bench and how to shift the legal profession’s culture to one of greater respect and civility.

Transcript

@theBar

The Civility in Uncivil Times Edition

12/05/2018

[Music]

Jon Amarilio: Hello everyone and welcome to CBA’s @theBar, a podcast where young and youngish lawyers discuss legal news, topics, stories, events and whatever else we want to talk about.

I am your host Jon Amarilio of Taft Stettinius & Hollister, and co-hosting the pod with me today is Chastidy Burns. Chastidy will, I think, be our new permanent co-host. So Chastidy, why don’t you introduce yourself to the audience a bit?

Chastidy Burns: Hi everybody. I am glad to be here. I am currently an Assistant Public Defender in the Felony Trial Division of the Cook County Public Defender’s Office and I am also the President of the Black Women Lawyers Association of Greater Chicago.

Jon Amarilio: Welcome Chastidy.

Chastidy Burns: Thank you.

Jon Amarilio: So we have two guests today. First is Judge Clare McWilliams. Judge McWilliams was elected to the Circuit Court of Cook County Chicago in November 2004 and is now assigned to the Law Division Jury section, where she currently presides over personal injury jury tort trials, including medical malpractice, construction and complex toxic tort litigation. Since 2013, she has also been the supervising judge of the Cook County Asbestos Docket.

We are also joined by Jayne Reardon, who is the Executive Director of the Illinois Supreme Court Commission on Professionalism. She has served as executive staff for the Commission since its inception in 2006.

Her prior experience includes counsel to the Review Board of the Attorney Registration and Disciplinary Commission (ARDC) and trial lawyer for the former Chicago law firm Wildman, Harrold, Allen & Dixon. Who are they now?

Jayne Reardon: Locke Lord.

Jon Amarilio: Locke Lord, that’s right. I can’t keep track of all the mergers.

Jayne Reardon: There have been a couple of iterations.

Jon Amarilio: Yeah. And the New York law firm Kelley Drye & Warren. Judge, Jayne, welcome to the podcast.

Jayne Reardon: Happy to be here.

Judge Clare McWilliams: Thanks so much Jon. I am happy to be here as well.

Jon Amarilio: So as our audience can probably tell by Jayne’s position, we are here to talk about civility in the legal profession today. I think everybody knows pretty much what a judge does, so we don’t need to warm up with that.

But Jayne, why don’t you tell us about the Supreme Court Commission on Professionalism and what it does.

Jayne Reardon: Sure. The Illinois Supreme Court established the Commission on Professionalism to address the incivility, primarily in litigation. Justice Thomas was the mover behind the establishment and he said he wanted lawyers to understand there is a difference between being assertive and being aggressive and dog-eat-dog in litigation, to get rid of that win at all cost mentality, and get back to solving problems for the people of the State of Illinois.

So in 2006, the court established the Commission on Professionalism and I had just come off working for the ARDC and working in discipline cases for lawyers, so I really look forward to working proactively on supporting the profession aspects of the Commission on Professionalism. Civility is only one of the mandates that we have.

Jon Amarilio: But that’s the one we are talking about.

Jayne Reardon: That’s why we are here today.

Jon Amarilio: So when we talk about civility, what are we talking about, we are not just talking about saying hello and being pleasant in a courtroom, right?

Jayne Reardon: No, it’s much more than that, but if we are talking about lawyers’ civility, it is being polite and having manners and being respectful is part and parcel of what we are talking about with civility. The problem is when lawyers think of themselves as advocating for their client to the exclusion of all other aspects, we also have an obligation as lawyers to act as officers of the legal system. It used to be officers of the court, right, and make sure that —

Jon Amarilio: Wait, used to be, I still use that phrase. Is that not the phrase anymore?

Jayne Reardon: No, that’s not it.

Jon Amarilio: Why? What’s the phrase?

Jayne Reardon: It has been changed to the officer of the legal system. You have got to check your preamble to the Model Rules of Professional Conduct.

Jon Amarilio: It’s about a week since I read that.

Jayne Reardon: No, in 2010 they did change that, but most people don’t know that. But I get into the nitty-gritty of the preamble, that’s kind of — yeah, somebody has got to do it, it’s important.

But anyway, lawyers do need to make sure – for example, you are well aware that there is no perjury or falsification of evidence and that our judicial system is based on integrity and what have you, and in addition, lawyers have an obligation to work for reform and to educate the public about issues like rule of law, etc.

So when we talk about civility, I like to think of lawyers wearing three hats; their obligations to their client, their obligations to the court or the legal system, and their obligations to the public. And as you probably know, lawyers kind of take a hit in the eyes of the public because we have let TV shows, I guess now it’s not necessarily TV, but Internet shows define what is good lawyering. It’s not Boston Legal or in the old days L.A. Law or Shark.

(00:05:15)

Jon Amarilio: I think Boston Legal is the old days now too.

Jayne Reardon: Yeah, they are all old days, aren’t they? But the reality is we are working for something that’s a higher calling as part of the legal profession and when we get down and dirty and play too fast and loose with the ethical rules in order to win for our clients in this matter, I think we lose sight of the fact that the judges all remember who is who, the lawyers are all interacting with other members of the profession and it may actually harm the next client or your credibility with that judge or with opposing counsel down the road.

Jon Amarilio: Judge, that just made you think of something, I saw you write something down, what was it?

Judge Clare McWilliams: Well, I think there is a fine line between professionalism, civility, and ethics and I think you crossover on all three at one particular level. And it’s interesting what Jayne just said earlier about officers of the court, I still use that, I rely on lawyers as officers of the court to present to me honestly, ethically, and professionally, not necessarily in that order, but sorry, I missed it Jayne, 2010.

Jon Amarilio: So let’s just jump right into kind of the elephant in the room with this issue. We live in an incivil country right now, the political environment is more toxic than it’s ever been during my lifetime in any event, and I think probably more toxic than it’s been at least in a century. Have you seen this spill into the practice of law or judge in the courtroom at all?

Judge Clare McWilliams: Sure. I want to say first off, by and large, I think lawyers are extremely professional and I do think because of TV shows, social media, all types of media now, lawyers continue to get a bad rep. But lawyers should know and appreciate how hard that they have worked to get where they have been and where they are, particularly with what type of law they practice, and if they are in a courtroom and the clients that they represent, but we do see lack of professionalism in the court system.

And as you know, I have prepared a top ten list which I am happy to go through anytime.

Jon Amarilio: We will go to that. We will go to that.

Judge Clare McWilliams: But it is unfortunate out there that lawyers do get the rep they do, but I love the profession. I think for the most part lawyers are acting and behaving the way that they should be and that’s the optimistic viewpoint. Politics aside, I am still getting a good feel in the courtroom for, as I said, the ethics and the professionalism.

Jon Amarilio: That’s encouraging to hear.

Judge Clare McWilliams: It is.

Jon Amarilio: Yeah. Jayne.

Jayne Reardon: I would agree. The vast majority of lawyers respect the license and the responsibility to represent others in the courts of law. That said, however, there are a significant minority of lawyers who will press for any advantage they can in order to win.

And you asked about the political discourse, that’s a whole separate elephant in the room, but there is no doubt that the conversation in social media and in other media outlets has gotten acerbic, sarcastic and personal. And as lawyers we are trained to not make personal arguments, but to attack the position with applicable case law and reasoned opinions and whatnot.

What’s disturbing to me from where I sit is, is a couple of things I see increasingly people willing to label somebody who disagrees with them in a very personally pejorative way; liars, cheaters, bigots, whatever.

Jon Amarilio: They are quicker to question motives.

Jayne Reardon: Yeah, and ascribe motives if they disagree with the position or the opinion.

Jon Amarilio: Right.

Jayne Reardon: That seems very, very toxic and very different over the last few years than it has been in the past.

And where the overflow is, if you will, into the legal arena is my colleagues who work at the ARDC have told me that more than one time when they brought an attorney in for — or followed up on a complaint for using language that’s borderline skirting close to the ethical rules, the respondent has said our president has done that, so why isn’t it okay for me.

(00:10:05)

Jon Amarilio: Wow.

Judge Clare McWilliams: Yikes.

Jayne Reardon: Yeah, that’s not a place I think we want to be as a legal profession, as a society.

Jon Amarilio: Right.

Judge Clare McWilliams: That’s true, and I see that oftentimes not only in the courtroom but when there’s attachments via email or hearing about it or seeing it in motion practice, lawyers come into the courtroom all the time accusing each other of something that was said perhaps in a telephone conversation or again through electronic means. That can be very hurtful and it comes up in the court system when it shouldn’t necessarily because it shouldn’t be happening back at the office or outside in depositions or outside in corporate meetings where lawyers are meeting and sitting down trying to settle cases on behalf of their clients.

Chastidy Burns: And speaking of attorneys and maybe even clients in the political climate that we have right now, have you noticed any different behaviors in the courtrooms in regards to the Me Too movement and how female attorneys are being treated or how they might be acting in court?

Judge Clare McWilliams: Well, that’s a good question and something recent happened that I think there is some repeating here and it touched on my opinion having to do with the Me Too movement.

A colleague of mine, a fellow judge told me that she walked into a meeting with lawyers and she received the once-over. We all know what the once-over is.

Chastidy Burns: Right.

Judge Clare McWilliams: And this is someone that dresses very professionally, there was nothing provocative, not that that would ever be a reason for that behavior, caveat there, but that happens and I’ve seen it when I’m sitting up on the bench and we’ll have some female attorneys coming into the courtroom and there’s a handful of male attorneys sitting either counsel table or back in the gallery there, and it’s just so inappropriate to be looking at how a female dresses, giving them the once-over, the up and down, you all know what I’m talking about.

So, my concern is that men, and I don’t want to be sexist here, I suppose it could apply in other areas but they keep their eyes focused on the eyes, so eye contact all the way around.

Jayne Reardon: If I could share something else that’s a little bit different not necessarily in the courtroom but the Commission on Professionalism did a survey on professionalism, they did one in 2007 and again in 14, and the results showed that the incivility was directed primarily to women, people of color and young people, and that was the one category of incivility, which is strategic incivility.

Jon Amarilio: Incivility from lawyers?

Jayne Reardon: Yeah, lawyer to lawyer. The lawyer to lawyer incivility was — we actually categorized the incidents. One area was basically bias in discrimination, one was just general rudeness like interruption, taking up a lot of space at the bench in order to intimidate opposing counsel but the —

Jon Amarilio: Man spreading at counsel.

Jayne Reardon: Man spreading, yeah, that kind of thing.

Judge Clare McWilliams: I was just going to say that. That can go on standing and sitting apparently.

Jon Amarilio: Okay.

Jayne Reardon: Yeah, but the last category was most interesting because it occurred mostly outside the viewpoint of the judge, and it was designed to get specifically change up the rules, skirt the rules in order to gain an upper hand.

So, I thought that was quite interesting because it does impact young women and diverse lawyers more than others.

Jon Amarilio: What kind of behavior were you saying? Are we talking about bullying, trying to coerce?

Jayne Reardon: Yeah, oh little lady, you want to come here, just something —

Jon Amarilio: Patronizing?

Jayne Reardon: Yeah, it could be patronizing, it could be interrupting. It could be sarcasm, it’s a big one dripping with sarcasm, that kind of thing that’s really hard if you’re in a conference room to call someone out right. You have to make those as a female, those split-second decisions or as a young person, a person of color do I call him out, do I ignore? I usually ignored, that was what I did when I was practicing law. You are nodding.

Chastidy Burns: I am nodding. I do work in a courtroom every day and a lot of what I see is very subtle from male attorneys. For example, I’ll have a huge stack of files being a public defender, we have so many cases, so I’ll come down to court with 10 to 15 files and there will be private attorneys, male ones, in the courtroom and they will start chatting me up in a way that they don’t do to my male co-workers, seeing that I’m obviously trying to talk to my clients and trying to get work done, but it’s that that interruption and perhaps the assumption that maybe I don’t have as much work to do as some of my male counterparts. Those subtle things are really interesting to see in the courtroom and I’ve seen a lot of it.

(00:15:01)

Jon Amarilio: So how do you handle that?

Chastidy Burns: You have to be assertive in which women sometimes get in trouble for in a way that men don’t, but you have to say, excuse me, I still try to be polite so that there’s no scene being made, but I have a lot to do right now, a lot of clients to talk to, so I’m just going to go over here.

Judge Clare McWilliams: And the main takeaway too I think is that females know what’s happening. No one is getting away with this and there are many different types, I think. Sometimes it’s unintentional, other times it’s meant to be intentional, disarming, okay, and really trying to get you off your game particularly if it’s a type of argument.

I have seen male attorneys look at their female counterparts and ask them to please go make a copy of something for them, things like that happened.

Chastidy Burns: That’s a huge pet peeve.

Jayne Reardon: Yeah, it still happens.

Jon Amarilio: That’s happened to you?

Chastidy Burns: Oh yeah, definitely.

Jon Amarilio: Wow, okay. I mean as a White male I can obviously identify sarcasm. So, like I have to — that shocks me, it really does.

Jayne Reardon: Yeah, and that hasn’t changed. When I was practicing in the 80s, you figured people call you a lady lawyer, they would assume you were the court reporter. I thought those kinds of behaviors should have been left in the rearview mirror a long time ago, they’re still going on.

Jon Amarilio: So, I am actually speechless, I am never speechless.

Judge Clare McWilliams: Okay, Jon is speechless.

Chastidy Burns: No, I think a part of it for me, might also be age, because I think I do look a lot younger than I actually am and so I think part of it might be age and sometimes when I have a trial set I’ll actually wear my hair in a bun and put my reading glasses on, just to look a little bit older, so that doesn’t happen.

Jayne Reardon: Oh, enjoy those days.

Chastidy Burns: Something that I don’t think men consider before going to trial.

Jayne Reardon: Are you ever mistaken for the paralegal in the room or —

Chastidy Burns: Sometimes.

Jayne Reardon: Not the attorney, not the first chair, there you go.

Chastidy Burns: Yes, yes, I am.

Jon Amarilio: Can you be — I don’t want to say confrontational in response, but I’ve had difficult opposing counsel before. We were in settlement talks or something like that and I just look across the table and I say what are you doing, this isn’t productive, your attitude, let’s be reasonable. If you need to take a break, that’s fine. Usually they’ll have an angry reaction and then calm down after a minute because they know I’m calling them out for acting unprofessionally, is that something that you’ve seen that — well, I should — let me phrase it this way, is that something that would be as effective for women?

Jayne Reardon: I think it’s effective for anyone, whether they’re as receptive to a woman as a man, it’s about the question.

Jon Amarilio: Right, I guess that’s what I am getting at.

Jayne Reardon: But I do think it is. It shows maturity that you have realized the environment is really not productive to resolving the matter or whatever the discussion is and just — I think taking a break or considering, hey, why don’t we all get a cup of coffee, take a walk, resume? I have made up conflict, geez, I’m running out of time, I think we’re at a breaking point here, let’s agree to reconvene next week or whatever.

Judge Clare McWilliams: Right, and it could be just that someone’s having a bad day and then there’s other situations where you know somebody is particularly ignatius or quarrelsome and you know that about their personality. So know that going in and take the appropriate measures to perhaps break more often or do it is that you have to do to represent your client in the best way that you can.

Jon Amarilio: Right, or maybe poke that bear right before you go on for on the job site.

Judge Clare McWilliams: Yes.

Jayne Reardon: Well, that’s the —

Judge Clare McWilliams: That was intimidation tactics.

Jayne Reardon: You have got to know who you’re dealing with and what the course of dealing has been up until then, so there’s not one rule that would apply in all circumstances, it really depends.

Jon Amarilio: Sure. I think that’s probably a good place for us to take a break. We’ll be right back.

[Music]

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[Music]

Jon Amarilio: And we are back, so Chastidy, we are having a great discussion unfortunately off the air, a minute ago and you said something that I thought was really interesting which was you have to strike a balance as a practitioner between being professional in the courtroom and being civil and being an officer of the court or an officer of the legal system, now I suppose, and being seen as being a zealous advocate for your client which is especially difficult for clients who don’t have a legal background and I expect one, a show to a certain degree to show that you care about them, could you talk about that a little bit, what do you mean?

(00:20:01)

Chastidy Burns: Sure. Yeah, and I think this is an issue that all criminal defense attorneys experience with their clients, where unfortunately our clients are out there watching Law and Order and Boston Legal and they see these big flashy lawyers yelling and screaming in the courtroom, not acting very civil, but that’s what they come to expect.

And public defenders find it to be a particularly difficult expectation, because we are actually assigned to the same courtroom every single day, so we could go out and we could be super aggressive and yell and scream, but then we have to come back and see the same judge and the same prosecutor tomorrow. And so it’s tough to strike a balance and explain to clients well, in the long run it’s better for you and the rest of my clients that we don’t act that way in court and that we try to express our points and make our arguments in as civil a way as possible. So that’s something that I struggle with in the courtroom as well as many of my co-workers.

Jon Amarilio: Judge, we see that in the civil arena as well, right, not just criminal?

Judge Clare McWilliams: Sure, we do. There is grandstanding and there is posturing that goes on by attorneys all the time. And I think that there is a distinction that needs to be made with a jury trial versus a bench trial or motions where members of the public are not necessarily present sitting as jurors.

Jurors pick up on everything. They know. They see unprofessional conduct. They hone in on it. We talk to jurors after jury trials. I believe there is such a thing as a jury tax, meaning if there is a particular lawyer that they don’t like and that lawyer is going to win or lose, they are going to win or lose harder, one direction or the other.

But I also think perhaps Chastidy, in your situation, you know the judge, you are familiar with the judge, they kind of know, and lawyers that are put in precarious situations where they have to grandstand in front of their clients, walk right up and say good morning Your Honor, I want you to know that my client is sitting right here in the courtroom with me and that way you can get a heads-up and I think we kind of get it. You do have an obligation to represent your client to the best of your ability and if that’s orating a little bit more tenaciously than you would be otherwise, that’s okay.

Chastidy Burns: And sometimes there are little tricks to do that and kind of let the judge know, if you say for the record judge, and then say whatever your client wanted you to say, even they know.

Judge Clare McWilliams: Absolutely.

Jon Amarilio: Jayne, do see lawyers getting into trouble trying to grandstand for their clients?

Jayne Reardon: Actually when I was working for the ARDC there were very few cases that were prosecuted as ethical violations. You have to violate the Rules of Professional Conduct in order to get disciplined, but lately, in the last five years or so, there have been some cases where lawyers have called their clients or opposing counsel exceedingly, frankly vile and disgusting names, those attorneys have gotten prosecuted.

Now, oftentimes they also violate the ethical rule, so it’s not the incivility or the unprofessional behavior alone, it’s also unethical behavior, but it appears that the ARDC is taking a harder look at the unprofessional behavior and the strategic incivility that might be going on.

Judge Clare McWilliams: Jayne, just as a follow-up to that, is that going on in the courtrooms?

Jayne Reardon: No, not in the courtrooms, yes, not in the courtrooms. Generally, it’s letters or in ancillary proceedings, like depositions.

Jon Amarilio: So that’s one thing I wanted to — I was hoping to touch on I should say, which is from my experience it seems like lawyers have a tendency to be less civil in emails for some reason. When they meet face to face, when they are talking on the phone, they are much more reasonable, but when we are dealing with written communications, there seems to be more posturing, more questioning of motives, more accusations. Why do you think that is, is that just you can’t pick up the tone of someone’s voice, there’s no visual cues?

Jayne Reardon: Well, actually the way the brain science works with incivility and pejorative comments is — I think it’s the amygdala, so you get an emotional response right away. So when I said letters, it actually was emails, so emails in particular, because of the rapidity of the turnaround, there is little time for reflection, so you don’t go to that slower brain, it’s a fast brain response and so that’s why emails tend to be really just a treasure trove of embarrassment.

Back when I started you had a couple of days after you dictated a letter and you could come and change it and tone down the response, but now people are just immediately responding in emails and I think because of that it’s just escalating the bad behavior.

(00:24:56)

Judge Clare McWilliams: It’s interesting because when I got on the bench 14 years ago, email was still kind of a new or novel way of communicating with clients and with opposing counsel and there was always a Dear Mr. Smith or a very truly yours in an email, and I laugh now because it’s just this chain of consciousness and going back and forth so quickly, I think we lose that.

And it’s also like the guy out there that’s stealing your identity. They are on the background in cyberspace not having anyone to answer to face to face, but when you are face to face with someone, it’s a different ballgame.

And I think that that’s part of the problem today in this environment with lawyers that come before the bench that are meeting each other for the first time, they are looking at each other, hi, hi, and they are having a little conversation, because back in the old days you had to pick up the telephone and introduce yourself as opposing counsel and how are we going to move this case forward, what can we do, those types of things.

Jon Amarilio: And the expectations of practice it occurs to me now just talking about it probably make it harder to be civil, because we are expected to respond, if not within the hour to that email, very quickly, so in the past perhaps practicing attorney could follow President Lincoln’s rules, if something angers you, write a letter, stick it in the drawer, see if you feel the same way a couple of days later, but now we can’t do that. Now we could actually get into ethical trouble for being unresponsive.

Jayne Reardon: That wouldn’t be considered — yeah, would not be considered responsive to our clients. So yeah, that’s the conundrum.

Judge Clare McWilliams: But if you use that as a defense I think that would be really good, Abe Lincoln.

Jon Amarilio: Okay, I will keep that one in mind. He sort of knew what he was doing.

So talking about things not to do or say, judge, you are on the front lines every day. You see lawyer misbehavior. What are some of your biggest pet peeves, biggest no-nos that you see on a daily basis?

Judge Clare McWilliams: All right. Good of you to ask and I took the opportunity before today to ask some of my colleagues a lot of them and we have honed in on — the top ten list isn’t exactly — and I can tell you one, two, and three are probably all tied, but interrupting, either the court or opposing counsel in front of the bench. So not only is that unprofessional, it really hurts you as counsel.

The most effective lawyers are the ones that are stoic, with a poker face and they do not respond in kind to arguments that are being made on the other side until in fact it’s their opportunity to speak.

So having a discussion with opposing counsel, like I can’t believe they just told you that judge, I turned over that discovery last week, didn’t you get it? Well, I got it, but didn’t you email me yesterday and on and on, particularly when you have a very crowded courtroom and you are trying to move a call. So those are key problems.

Jon Amarilio: And I have seen lawyers start to question each other when they are in front of the bench, right?

Judge Clare McWilliams: Oh sure. It happens all the time.

Jon Amarilio: And judges never seem to like that.

Judge Clare McWilliams: Judges don’t want — I don’t think they ask for any conversation between lawyers in front of the bench. I mean that’s not really the purpose. If you have something to discuss, do it out in the hallway or clarify that before you approach the bench, because then you are wasting the court’s time and really each other’s time.

Jon Amarilio: What’s another one?

Judge Clare McWilliams: Misquoting cases and disregarding court orders. I am not a big one for sports analogies, but let’s imagine that Rizzo hits a line drive somewhere and he gets called out at first base, the umpire says out. Can you imagine if he is standing at the base and says, wait a minute, I want a second try or I am not leaving the base or you are wrong.

So court orders, particularly in discovery, are not really adhered to as much as they can be and they should be and that’s unfortunate. I think it’s very frustrating for the court to set deadlines and then routinely have lawyers come before the court without any explanation and just say I need additional time. It’s very —

Jon Amarilio: After the fact?

Judge Clare McWilliams: Always after the fact. I mean if you come in beforehand, that’s the appropriate and professional thing to do. You are asking for leave of court to have an extension of time, but it’s basically looking at the court saying your orders have no teeth. This is meaningless because I have already violated it by several weeks’ time and there you go.

Jon Amarilio: I am always amazed when I see other lawyers misquote cases or improperly cite them, because it gives you such an opening without adjectives, without commentary to completely undercut their credibility and that you see it with incredible frequency. I wonder if it’s not so much intentional as it is just a result of sloppy research, only reading the head notes and things like that?

Judge Clare McWilliams: I think that’s part of it. Also, lawyers become very routine particularly with say motions in limine, for example. They are quoting cases that they are misapplying the law or again they are just misquoting and nothing really can be more embarrassing than having your opposing counsel say to the court this case says exactly the opposite than what counsel has presented.

(00:30:07)

Jon Amarilio: Right.

Chastidy Burns: That is the worst.

Jon Amarilio: You left the word not out of that sentence.

Judge Clare McWilliams: Exactly. Just like our President left some wording out of a Russia conversation not too long ago. But yeah, that’s embarrassing for you if you are a practicing lawyer. So, misquoting cases, whether it’s orally to the court or written briefs or memorandum.

Jon Amarilio: You have got another one here which is a one I particularly love, not love to use, but I have got a story behind it, and it’s using the phrase with all due respect, how often do you hear that?

Judge Clare McWilliams: A lot.

Jon Amarilio: Really?

Judge Clare McWilliams: Yeah. I would say at least on a weekly basis, and I like to think as lawyers, at least trial lawyers and litigators in the courtroom, as wordsmiths. We should be using our words carefully and cautiously. We could be — we should be circumspect about what we say and with all due respect means you have no idea judge what you are talking about and let me correct you right now.

Jon Amarilio: I actually saw a Federal Circuit Court judge at Seventh Circuit argument a few years ago interrupt counsel after he had used that same phrase and he stopped him right in the middle of argument and he said do you know what we hear, do you know what judges hear when we hear that phrase? And the counsel said, I don’t know judge, I am sorry, I didn’t mean anything by it. And the judge said, it means you don’t know what the F you are talking about, let me correct you. And to hear that out of a Federal Circuit Court judge’s mouth, well, it left the appellant’s attorney pretty speechless, but it certainly seared the point into my mind for the rest of my life.

Judge Clare McWilliams: Yes, and I agree with whoever that judge was, absolutely.

Jon Amarilio: He is one of the grumpier ones so I am guessing you could probably figure it out.

So you have got another one here, don’t do anything in front of a jury that the jurors themselves are not permitted to do, what are we talking about there?

Judge Clare McWilliams: Yeah, that’s just bad practice really. What I am talking about there is bringing your Caramel Macchiato, if that’s such a thing, I don’t really know.

Chastidy Burns: That happens to be my drink.

Judge Clare McWilliams: That happens to be my kids’ favorite drink, that’s all I know, but you are bringing that into a courtroom, you are looking at your iPhones, you are looking at your iPads, doing things that jurors are not permitted to do. I mean sometimes depending on the court they may not even be able to have a glass of water while they are sitting there listening to testimony, and that’s just not — it’s not a good idea all the way around and I think it hurts you in the long run.

Jon Amarilio: Chastidy, you are in court a lot. Do you find that pretty difficult to not look at your phone?

Chastidy Burns: I do, especially since when there isn’t a trial going on, we are permitted to have our phones in court, the attorneys, in case we need to look at our schedule for a date or something like that, so it is kind of tough to be separated from the iPhone during trial, but it just — it’s better for your client, the more professional you look and the less irritated jurors are with you.

Judge Clare McWilliams: And you know what’s hilarious about that, no one thinks that the jurors know what they are doing, like really, you are looking down at your lap, your hands are moving in a circular motion.

Chastidy Burns: You are texting, you are Facebooking, they know.

Judge Clare McWilliams: Absolutely. So you are not hiding anything, especially from the judge who is sitting higher up in the courtroom and can basically see everything and the jurors can see as well.

Jon Amarilio: So there is another one here that I have seen a lot of lawyers use, get to the point quickly and compliment the court, what do you mean by that?

Judge Clare McWilliams: What I mean by that and I don’t mean so much compliment the court, but by the time you are getting to let’s say oral argument on a motion for summary judgment, that judge has read every word of those extensive briefs and I like to say here you have got a certain time limit or whatever you want to present to the court and just emphasize your very strong points and then move on, because otherwise you are just regurgitating what’s in the written memorandum, it’s not helping the court at all.

And I think, again, it’s wasting time or perhaps it’s grandstanding again, talking because your client is in the courtroom and it’s by and large unnecessary.

Jon Amarilio: Although it probably depends on which court you are in front of, right?

Judge Clare McWilliams: Absolutely.

Jon Amarilio: I know as an appellate petitioner some courts will be, just because of the way they decide cases, more familiar with the issues and the briefing than others, so it’s sometimes important to lay a narrative foundation and that kind of thing.

Judge Clare McWilliams: No doubt Jon, you are doing everything perfectly in the appellate courts I am sure.

Jon Amarilio: I wouldn’t go that far, but thank you.

No speaking objection, so lawyers have — I know they are improper, but I know a lot of trial lawyers and I know a lot of trial lawyers use speaking objection, so what are your thoughts on that?

Judge Clare McWilliams: Well, it’s just — trials get hot and heated as we know, and when it comes down to speaking objections lead to discussions, which leads to arguments, which leads to bickering in front of jurors and that’s something that should really never happen and so we like to keep a lid on objections.

(00:35:04)

And the worst case scenario, I don’t think the Federal Court does this as much, but because of the makeup in Cook County anyway, sidebars are required a little bit more frequency — with more frequency, because the cases come to us that day and we are getting familiar with the case instantaneously.

But if there is something that you feel strongly about as an attorney that perhaps the court is missing, ask for that sidebar as opposed to getting into an argument with opposing counsel. Again, the jurors are watching that and they are taking it home with them.

Jon Amarilio: So I am going to throw a random question around the table, something that’s not on this list, pet peeves, Jayne, related to incivility?

Jayne Reardon: Pet peeves related to incivility, back when I was practicing, I think it was lady lawyer.

Jon Amarilio: The phrase?

Jayne Reardon: The phrase lady lawyer, yeah, yeah, and I think it was meant to be demeaning and there was — for example, if you come up, there is an order for how you are supposed to be presenting your motion, right, and what’s going on, but oftentimes back in the day, I will be curious to see whether this is still going on, there would be a forced, over chivalry kind of thing. Well, let’s let the lady lawyer speak, kind of thing, dripping with sarcasm. So that’s seared into my memory from years gone by.

Judge Clare McWilliams: Fortunately I think that’s gone by the wayside.

Jayne Reardon: Thank you. Work in progress.

Judge Clare McWilliams: Or hopefully — for sure in the courtrooms where there are lady judges I would hope that wouldn’t be going on, but yeah.

Jon Amarilio: I don’t know if it would be incivil, but I think if I heard another counsel use that phrase, I would probably smack him on the back of the head.

Judge Clare McWilliams: Yeah, that may be incivil too depending on how hard you smack him.

Chastidy Burns: It would be much appreciated though.

Judge Clare McWilliams: That’s true. That’s true.

Jon Amarilio: Not enough to constitute battery. But Chastidy.

Chastidy Burns: The first thing that comes to mind is when attorneys are over-familiar with the judge, when they are up at the bench on the record and they ask the judge, oh well, where are you vacationing next, where are you going to dinner tonight, how are the kids, it’s just like basically having a lack of respect for a really long court call and other attorneys who are in line to get their cases called, that really bugs me.

Jayne Reardon: Oh, but it’s probably not a lack of respect, it’s trying — it’s signaling I have an in with the judge. It really undermines the whole unbiased position that we should be holding our court in.

Chastidy Burns: Exactly.

Jon Amarilio: Which undermines having an in with the judge, right? I mean I don’t get that kind of kind of behavior. Judge?

Judge Clare McWilliams: So, I do not like being told that if I rule a particular way it’s going to constitute reversible error. That makes no impression on me one way or another. I think that attorneys think that that’s going to help sway their position and it really doesn’t.

Jon Amarilio: It’s a threat.

Judge Clare McWilliams: It kind of is, it’s a veiled threat, and I think it’s very offensive, particularly to some colleagues of mine. I don’t care for it one way or another. I don’t think it’s a good idea.

The other thing is I don’t like when attorneys say — reference another judge without saying judge, they can do it in all sorts of contexts, but they just use the last name, and I will say, for example, who is that, oh, you mean Judge Wright, or you mean Judge Flannery, because they will just talk about using the name or whatever it is.

Jon Amarilio: Oh really?

Jayne Reardon: First name or last name?

Jon Amarilio: Without the Honor.

Judge Clare McWilliams: Just the last name, without saying judge before it.

Jon Amarilio: Oh yeah, that’s just openly disrespectful.

Judge Clare McWilliams: Yeah, I think it is, and I am glad you agreed with me because it’s really — it’s not a big deal, but it resonates with me and so I will question them about that.

And also ma’am, I brought that up in my list.

Jon Amarilio: I saw that in your list and the first thing that popped in my head was well, what if they are southern?

Judge Clare McWilliams: That is a good point, because a lot of southern attorneys that are in front of me use it and they are so used to it and they would not have any idea that that was disrespectful. I just don’t see the evenness of that because I don’t hear a counterpart to that. In other words, I don’t hear my male colleagues being referred to as sir.

Jon Amarilio: Oh really? I call my father sir, so I use that all the time.

Judge Clare McWilliams: Is your father an attorney?

Jon Amarilio: He is.

Judge Clare McWilliams: Okay. Sorry, I didn’t know, but that’s good. Keep doing that. Dad usually works for most people, but.

At any rate, I think ma’am makes you feel old, and if I thought that — it’s not particularly offensive, you asked about pet peeves so I decided to throw it out there.

Jon Amarilio: That’s a good one.

Judge Clare McWilliams: Yeah.

Jon Amarilio: That’s probably a good place for us to take our break. We will be right back.

[Music]

(00:40:03)

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[Music]

Jon Amarilio: And we are back. So we like to close every podcast episode with a game we call Stranger than Legal Fiction. The rules are pretty simple. Chastidy and I have done a little bit of research around the Internet, hopefully verified our sources, found one law that’s on the books somewhere in the US that is real, but weird for some reason or strange or disturbing, pick your adjective, and then we have just made another one up completely and we are going to poll you guys and each other to see if we can distinguish strange legal fact from fiction. Everyone ready?

Judge Clare McWilliams: Ready.

Jayne Reardon: Ready.

Jon Amarilio: Chastidy, why don’t you lead us off?

Chastidy Burns: Sure. Okay. In Galesburg, Illinois there is a $1,000 fine for beating rats with baseball bats.

Jon Amarilio: Okay.

Jayne Reardon: Can I check my magic phone?

Jon Amarilio: No.

Chastidy Burns: No cheating.

Jon Amarilio: No phoning friends. Okay, what’s the second one?

Chastidy Burns: In Naperville, Illinois it is illegal to walk down a public sidewalk while eating an ice cream cone?

Jon Amarilio: Judge, what do you think?

Judge Clare McWilliams: Oh, I have to go with Naperville, sorry, I am just going with that.

Jon Amarilio: Why?

Judge Clare McWilliams: I don’t know, it’s such a beautiful suburb. They don’t want that ice cream on the sidewalk.

Jon Amarilio: Just so our non-Illinois audience knows, Naperville, I think a number of years ago was voted like the best suburb in America or something like that.

Judge Clare McWilliams: Sure, it’s like Pleasantville.

Jon Amarilio: That’s exactly what I was just thinking.

Judge Clare McWilliams: Yeah. It is beautiful.

Jon Amarilio: Pristine. There is no ice cream.

Judge Clare McWilliams: As are the people, yeah. I think they all walk around with napkins.

Jayne Reardon: Salads.

Jon Amarilio: It’s a hellscape that I never want to go to.

Jayne Reardon: Just to be provocative here I will take the other one. I think the people in Galesburg have a thing with rats, so I think that is a real law.

Jon Amarilio: Wait, why, why do the people in Galesburg have a thing with rats?

Jayne Reardon: It’s the — the rats, is it illegal to hit the rats, is that the law?

Chastidy Burns: With a baseball bat?

Jayne Reardon: With the baseball bat, yeah. No, actually they have a thing about bats and baseball there and they don’t want to sully their bats with the rats, so that’s why I think it’s a real law.

Judge Clare McWilliams: And I think that there is a bad cat population down in that part of the state.

Jon Amarilio: Oh really?

Jayne Reardon: Yeah, so they want to keep the rats — they want to keep the rats.

Judge Clare McWilliams: I just wanted to rhyme bat with cats somehow. I think it sounded good.

Jon Amarilio: It does.

Jayne Reardon: Bats, rats and cats. They are going crazy in Galesburg.

Jon Amarilio: I am going to go with the Galesburg one, if only so PETA doesn’t target me for saying anything wrong.

Chastidy Burns: Should I reveal the answer?

Jon Amarilio: Please do.

Chastidy Burns: Okay. In Galesburg there is a $1,000 fine for beating rats with baseball bats, but the one about the ice cream cone, it’s not true for Naperville; however, I was watching the Food Network and in Carmel, California, it was illegal up until 1986 to walk down public sidewalks while eating an ice cream cone until Clint Eastwood became mayor and changed the law.

Judge Clare McWilliams: All right.

Jayne Reardon: Stranger than Fiction.

Judge Clare McWilliams: That was very unprofessional of you to trick up a judge like that, Chastidy, I am just saying.

Chastidy Burns: My apologies.

Judge Clare McWilliams: With all due respect.

Jon Amarilio: All right, so option number one, in Missouri it is illegal to sell homespun cloth in quantities exceeding the lesser of 10 yards of fabric or 5 pounds, that’s option number one.

Option number two, in Minnesota any contest in which participants try to capture a greased or oiled pig is illegal?

Jayne, you had a reaction to that, what are you thinking?

Jayne Reardon: I think that the Minnesota law is accurate. I understand there is quite a rodeo and culture where animals run around and you vote on them and whatnot, so I think we would want to keep them greased up so they can be frictionless for their races, so therefore that rule law is true.

Jon Amarilio: Okay. Judge.

Judge Clare McWilliams: I agree with Jayne on this one for sure. I am going with Missouri fabric.

Jon Amarilio: Wait, I thought you — wait, wait, wait, wait.

Judge Clare McWilliams: No.

Jon Amarilio: You think the Missouri one is real?

Judge Clare McWilliams: I do.

Jon Amarilio: Okay. And Jayne thinks the Minnesota one is real.

Judge Clare McWilliams: I disagree, I apologize, yeah.

Jon Amarilio: I just want to make sure everyone is in the right category, so we can claim the appropriate amounts of credit, when one of you is right.

Jayne Reardon: With the price money of course.

Jon Amarilio: Right. Chastidy, what do you think?

(00:44:58)

Chastidy Burns: I am going with number one, I think it sounds very specific and very realistic and number two is just ridiculous.

Jon Amarilio: Which is why it’s the real one. So I will read it to you. Section 343.36 entitled greased pig contests and Turkey scrambles. No person shall operate, run or participate in a contest, game, or other like activity, in which a pig, greased, oiled or otherwise, and I don’t know what the otherwise is, let’s not go there, is released and wherein the object is the capture of the pig, or in which a chicken or turkey is released or thrown into the air and wherein the object is the capture of the chicken or turkey. Any violation of this section is a misdemeanor.

Judge Clare McWilliams: Well, had I heard the turkey part I would have completely gone with that one.

Jayne Reardon: Yeah, that would have revealed it.

Jon Amarilio: Right, yeah. If any of our Minnesota listeners could shed light on exactly how bored they are up there, I think that would be helpful, because there’s got to be a story behind that, right?

Jayne Reardon: I made one up.

Jon Amarilio: Jayne, maybe one of your rodeo things.

Jayne Reardon: That’s a reactionary law for sure.

Jon Amarilio: Yeah. Well, I just thought — I figured that #MeToo would be coming up today and I thought some kind of reference to greased pigs would be appropriate to tie in.

Jayne Reardon: Oh, interesting, lipstick from pigs.

Judge Clare McWilliams: Okay.

Jon Amarilio: And I think that’s going to be our episode for today. Remember, you can download us on iTunes, Apple Podcasts, Google Play or wherever the finest podcasts are given away for free.

Please also follow us on Facebook, Twitter, Instagram and other social media platforms @CBAatthebar. I want to thank our Executive Producer, Jen Byrne, our sound crew, Ricardo Islas and Steve Weirich. And my new co-host, Chastidy Burns, who did a great job on her first time out.

Thanks for joining us and we will see you soon @theBar

[Music]

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Episode Details
Published: December 5, 2018
Podcast: @theBar
Category: Best Legal Practices
Podcast
@theBar
@theBar

Young and young-ish lawyers have interesting and unscripted conversations with their guests about legal news, events, topics, stories and whatever else strikes our fancy.

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