CBA Nov.-Dec. 2020
Opinion: Some Observations from a Practitioner of 68 Years By Jack Joseph I became an attorney in 1952.
the 1970 Constitution, still in effect but with some amendments (see the separate article in this issue titled The Illinois Consti- tution at 50: A ReformCharter with Unreal- ized Potential ). In Cook County and a few of its collar counties, vested interests have successfully resisted implementation of structural reforms in favor of retaining the antediluvian common law organization. It is submitted that the major problems with the organization of the courts in Cook (and to some extent, in collar counties) is the failure to simplify the court system as contemplated by the reformers who enacted the 1970 Constitution. In almost all other Illinois counties, there exists one circuit court which hears almost all classes of cases. In Cook County, we have a Chancery Division with multiple calendars, a Law Division with functions divided on differ- ent calls, a municipal division, a criminal division, etc. These different divisions have different rules, different customs, and in many crucial instances different “bars” – lawyer-specialists who appear before them. The argument favoring this arrangement is that it allegedly is more efficient because judges, lawyers, clerical personnel, bailiffs, etc. have acquired expertise in these differ- ent segments. While that may be true in a limited sense, it is overwhelmingly outweighed by its adverse effect on judicial impartiality and fairness and its diminution of competi- tion. It is submitted that all litigants ought to be able to expect an even-handed, “fair shake” from the judge to whom their case is assigned. In a courtroom where all the attorneys deal with the same clerks, court personnel, and judges daily, human nature (including its darker side) is likely to affect behavior, consciously or otherwise. It may also be that some judges find that making decisions almost always before strangers will be less satisfying than the pleasant cordiality of seeing friends every day.
The defenders of the status quo argue that the specialization encouraged by retaining ancient distinctions promotes efficiency. But “efficiency” is not superior to justice. In one sense deciding every issue in every case by a coin toss might well be the most economical mode of disposing of cases. The purpose of justice, however, is to assure as much as possible that every litigant receives the decision that the law provides. A system that encourages permanent or semi-permanent personal relationships between lawyers, and that penalizes outsiders, promotes unfairness, notwithstanding that no intentional wrongdoing takes place. A related subject is Alternative Dispute Resolution. In proper circumstances, such processes as mediation, arbitration, and sometimes perhaps even dice-throwing may well be useful and efficient devices. However, compelling or pressuring litigants to use these devices to resolve disputes (such as may be required under Supreme Court Rule 86) is antithetical to the ideals of justice, has no authority in the Illinois constitution, and in practice tends to cast the workings of the judicial system in disfavor. Disputants fare best with judges whose focus and interest is on judging, on making decisions that are in accordance with the law, and who exercise that most valuable asset that a judge can have: the ability to make decisions in accordance with the law and the facts as the judge finds them. The trappings of office may satisfy some, but those who are attracted to the bench for reasons of prestige or reasons extrane- ous to the ability to analyze, understand, and above all decide dispassionately are and should be the decisive factors in determin- ing who should fill the office. MCLE Some years ago, aCBAmember approached me at a meeting and said he wanted to
When I started law school in 1949, on the first day of class four of 135 students were women; in 1952, my gradu- ating class of 98 students had two women, both of whom had successful and indeed outstanding careers. Then, immediately before I joined the CBA, a bitter battle took place over whether Black lawyers should be allowed to join the organization. Lawyers whom I worked with were instrumental in bringing to victory the campaign to admit them. The CBA was subsequently served by a series of Black presidents and other officers, and this was reflected in their growing participation and influence in other spheres of the community’s life. Black lawyers who chose to serve in their communities, however, found attending CLE classes more costly than for most lawyers in general practice because of the travel time they had to incur compared to attorneys whose offices were within a block of the then-CBA location at 29 S. LaSalle. During my 68 years in practice, I have seen many positive developments. I take this opportunity to discuss some with which I have problems. Court Structure In 1870, Illinois adopted a constitution at a time when a large percentage of its territory (including Cook County) was still owned by Native American tribes. However suit- able for the state’s society when adopted, it had long been generally acknowledged to have become obsolete. Attempts to amend it had been unsuccessful through the early decades of the 20th Century. Two amendments ultimately enacted paths to remedy the situation. The first was an amendment to the Judicial Article, which modernized procedure in ways that were largely retained in our present Con- stitution. The second was the “Gateway Amendment” substantially easing the abil- ity to amend the Constitution, followed by
32 November/December 2020
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