CBA Record Nov-Dec 2019

NOVEMBER/DECEMBER 2019 CBA

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NOT JUST YOUR GO-TO NURSING HOME LAWYERS

This summer, we set the record for a jury verdict under the Illinois Nursing Home Care Act when we achieved a $4.1 million result for our client, surpassing the previous record set by our firm in 2006 of $2.9 million. Although we are proud of these results and our reputation in handling nursing home cases, our results in other serious injury, accident, and medical malpractice matters should not be overlooked. We routinely obtain substantial results in medical malpractice matters and other personal injury matters. Recently we achieved a $9 million-dollar medical malpractice birth injury settlement. We have also set the Illinois record for the largest Jones Act settlement of $7.5 million for an injured boat worker.

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November/December 2019 • Volume 33, Number 6 CONTENTS INSIDE THIS ISSUE 22 The Art of “Deciding” When Law, Compassion, and Justice Are at War By Anthony F. Fata 27 Recreational Marijuana: Legal Ramifications for Illinois By Daniel M. Kotin and Eddie Hettel 30 Campaign Spending in Cook County Judicial Elections By Albert J. Klumpp

CBA RECORD

6 Editor’s Briefcase

Our Unified Court System: HowWe Got Here

8 President’s Page

Thankful for a Platform to Create Opportunities for Others

10 CBANews 16 Chicago Bar Foundation Report 18 Murphy’s Law 38 Nota Bene HowDo I Look? DesignYour

32 The Illinois Safe Homes Act: What Landlords & Tenants Need to Know Blake A. Strautins and Pooja Dosi

YOUNG LAWYERS SECTION 34 YLS Members Learn the Importance of Being a Part of Our Community By Octavio Duran 35 Connecting with Communities During the 26 th Annual Pro Bono and Community Service Fair By Katie Liss 36 Commercial Drone Usage: A Risk and Liability Checklist By Brett Geschke

Documents for Greater Legibility and Persuasion

40 LPMT Bits & Bytes Sleep in the City 42 Legal Ethics

Changes in the Nature of the Practice of Law

On the Cover This issue’s cover was created by Lawrence H. Aaronson , a partner with McDonnell Boehnen Hulbert & Berghoff LLP, and a long-time Bar Show cast member. Thank you Larry!

NOVEMBER/DECEMBER2019 CBA

The CBA Record (ISSN 0892-1822) is published six times annually (January/February, March/April, May/June, July/ August, September/October, November/December) for $10 per year by The Chicago Bar Association, 321 S. Plymouth Court, Chicago, Illinois 60604-3997, 312/554-2000, www. chicagobar.org.Subscriptionsfornon-membersare$25peryear. PeriodicalspostagepaidatChicago,Illinois.POSTMASTER:Send addresschangesto CBARecord ,c/oMembership, Chicago Bar Association,321SouthPlymouthCourt,Chicago,Illinois60604. Copyright2019byTheChicagoBarAssociation.Allrightsreserved. Reproductioninwholeorinpartwithoutpermissionisprohibited. Theopinionsandpositionsstatedinsignedmaterialarethoseof theauthorsandnotbythefactofpublicationnecessarilythose oftheAssociationoritsmembers.Allmanuscriptsarecarefully consideredbytheEditorialBoard.Allletterstotheeditorsare subjecttoediting.Publicationofadvertisementsisnottobe deemedanendorsementofanyproductorserviceadvertised unlessotherwisestated.

CBA RECORD

EDITOR’S BRIEFCASE BY RICHARD LEE STAVINS, ACTING EDITOR-IN-CHIEF Our Unified Court System: How We Got Here M y name is Richard Stavins. I have been appointed acting editor-in-chief of this issue by more. Each court was governed by statu- tory mandates as to what kinds of cases it could hear and up to what dollar amount. Often, the dollar limit in tort was different than the dollar limit in contract.

EDITORIAL BOARD EDITOR-IN-CHIEF Justice Michael B. Hyman Illinois Appellate Court ASSOCIATE EDITOR Anne Ellis Proactive Worldwide, Inc. SUMMARY JUDGMENTS EDITOR Daniel A. Cotter Latimer LeVay Fyock LLC YLS JOURNAL EDITORS Daniel J. Berkowitz Aronberg Goldgehn Kruti Patel Charles Wintersteen & Associates Kaitlin King Hart David Carson LLP Carolyn Amadon Samuel, Son & Co. Amy Cook The Farmer Chef Alliance Nina Fain Janet Sugerman Schirn Family Trust Anthony F. Fata Cafferty Clobes Meriwether & Sprengel LLP Clifford Gately Hinshaw & Culbertson Jasmine Villaflor Hernandez Cook County State’s Attorney’s Office Lynn Semptimphelter Kopon Kopon Airdo LLC John Levin Kathryn C. Liss DePaul University College of Law Bonnie McGrath Law Office of Bonnie McGrath Clare McMahon Law Office of Clare McMahon Pamela S. Menaker Clifford Law Offices Peter V. Mierzwa Law Bulletin Media Kathleen Dillon Narko Northwestern University School of Law Adam J. Sheppard Sheppard Law Firm, PC Richard Lee Stavins Robbins, Saloman & Patt, Ltd. Caryn Suder

Justice Michael B. Hyman, the Record’s long-standing and outstanding editor, who must step away temporarily. I feel a bit like whoever succeededWil- liam Randolph Hearst as the editor and publisher of the Hearst-owned newspa- pers: it’s a tough act to follow. Having been engaged in the practice of litigation law since 1968, I thought I would reminisce on what things were like in Cook County before 1964. That was four years before I was licensed, but one need not actually have been present at the Battle of Hastings to write about it. Effective in 1964, an amendment to the Illinois Constitution of 1870 completely changed the judicial system and laid the groundwork for its current structure. Illinois lawyers are familiar with the judi- ciary’s structure today: • One unified trial court in each county, the Circuit Court, which has jurisdic- tion over all justiciable matters. • One intermediate court of review as of right, the Appellate Court of Illinois, divided into five geographic districts. • One high court, the Supreme Court of Illinois, with a nearly totally discretion- ary docket. What was it like before 1964? It was a subject matter nightmare. There was no single court of original jurisdiction. Instead, there were dozens of trial courts, each with their own jurisdictional rules. There was the Circuit Court, the Superior Court, the County Court, the Probate Court, the Criminal Court, the Municipal Court of Chicago, the Municipal Court of Evanston, the Town Court of Cicero, and

The little Municipal Court of Evanston had unlimited dollar jurisdiction, whereas the huge Municipal Court of Chicago had low dollar jurisdiction. This was solely because the state senate majority leader back then – from Evanston – pushed a bill giving his pet court such power. The Probate Court had jurisdiction over the probate of wills. The Superior Court and Circuit Court had jurisdiction over contract disputes. Sounds easy, but in an action to enforce a contract to make a will, who had jurisdiction? The Probate Court, the Superior Court, or the Circuit Court? Or perhaps the Municipal Court of Evanston? If you guessed wrong, and you won the case, your judgment was void ab initio. Below all of this were the Justice of the Peace courts. The judges in those courts (usually called J.P.s) were paid by the prevailing party. The plaintiff could essentially file suit before any J.P. that he wanted. Naturally, plaintiffs’ lawyers filed their cases before J.P.s who nearly always entered judgment for plaintiff. As a result, the defense bar sarcastically said J.P. stands for Judgment for Plaintiff. Such judgments were appealable as of right to one of the other courts, where there was a trial de novo , and where the J.P. was often reversed. So, suing in a J.P. court just added more expense to litigation and often accomplished nothing. Then there were the Masters in Chan- cery. In the chancery courts – hidden inside the Circuit Court and Superior

Loyola University Chicago Rosemary Simota Thompson Judge E. Kenneth Wright, Jr. Circuit Court of Cook County

THE CHICAGO BAR ASSOCIATION Sharon Nolan Director of Marketing

6 November/December 2019

Court – lawyers in private practice who were not judges heard all of the testimony in a case in their law offices and then made a written recommendation to the Chancellor. Within days after a case was referred to a particular Master, each side often just happened to hire as co-counsel the Master’s political sponsor, good friend, cousin, or whatever. What a system! Good government people worked for decades to try to abolish it. Those who had learned to use it to their advantage adamantly opposed any change. That had to start with an amendment to the 1870 Constitution. But the framers of the 1870 Constitution had made it almost impossible to amend. So, the good govern- ment folks devised a two-step attack. First, they got the constitutional provision on amendments amended (referred to as the Gateway Amendment) to make it easier to amend the 1870 Constitution. Then, they sprang their real goal: the judicial article amendment to get rid of the mess and give us the unified court system. Bless them.

MAKE A CHILD’S HOLIDAY A LITTLE BRIGHTER... Fulfill a Wish through the Dear Santa Letter Program Help a child enjoy the holidays...answer a Dear Santa Letter! This holiday season, the Young Lawyers Section is distributing “Dear Santa” letters provided by Direct Effect Charities, a group that receives thousands of letters fromdisadvantaged youth fromChicago Public Schools requesting gifts fromSanta. Here’s how it works: select a letter, purchase a few items the child has requested (approx. $25 or less), and mail the package directly to the child’s school. Letters will be available to be picked up at the CBA inmid-November (stop by our 1st floor bookstore). If youwould like to distribute letters at your firm in bulk (10+ letters) fill out the form at www.chicagobar.org/yls (under Events). Complete instructions will be attached to the letter. Questions? Email yls@chicagobar.org or call 312-554-2031.

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CBA RECORD 7

PRESIDENT’S PAGE BY JESSE H. RUIZ Thankful for a Platform to Create Opportunities for Others

The Chicago Bar Association www.chicagobar.org

OFFICERS

President Jesse H. Ruiz

(and I hope you also find time to attend the incredibly entertaining CBA Bar Show December 5-7 at the Merle ReskinTheater, tickets at chicagobar.org). It is a season of giving thanks for all the blessings we have in life, and the opportunities we have been fortunate to receive, that in some cases led to us becoming lawyers. Upon the recent passing of Maryland Congressman Elijah Cummings, portions of the 60 Minutes interview he recorded earlier this year were widely circulated on social media. In one interview segment that truly resonated with me, the son of share- croppers who went on to become a lawyer and U.S. representative, remembered the day he was sworn into his first term in Congress. Rep. Cummings recalled how he had never seen his father cry, but he did on that day. When Rep. Cummings asked his father why he was crying, his father told him that while he was very proud of his son, he became emotional because “now I

First Vice President Maryam Ahmad

Second Vice President E. Lynn Grayson

Secretary Ray J. Koenig III

Treasurer Timothy S. Tomasik Executive Director Terrence M. Murphy

Assistance Executive Director Elizabeth A. McMeen Immediate Past President Steven M. Elrod BOARD OF MANAGERS Jonathan B. Amarilio Octavio Duran Sharon L. Eiseman Nina Fain Charles P. Golbert Judge LaShonda A. Hunt Judge Diane Joan Larsen Judge Lori E. Lightfoot Kathryn C. Liss Michael R. Lufrano Lauren S. Novak Judge Nichole C. Patton Trisha M. Rich Federico M. Rodriguez Ajay N. Shah

N ovember and December in Chi- cago bring us colder weather, but these months also bring us the warmth of the holiday season. We slow down a bit from our busy lives and law practices to attend family gatherings and holiday parties with friends and colleagues

Adam J. Sheppard Adam M. Zebelian

8 November/December 2019

see what I could have been if I had had an opportunity.” This reminded me of my late father who came to the United States from Mexico as a migrant farm worker with very little formal education. My father went on to work in construction, on the railroads, in a steel mill, and in the last 23 years of his working life, in a commercial bakery. Like many Americans he worked incredibly hard, doing strenuous physical work. He did so anonymously, with no acclaim or fanfare. He never did his work in public; he never received a pro bono service award (or an award of any kind); he never had his work noted in a newspaper or in a law journal. He did not benefit frommember- ship in a bar association that helped him in his career, led to great friendships, or rewarding opportunities to help and create opportunities for others. I am very grateful to be a lawyer, a member of a very noble profession. While it is a very demanding, and at times stress- ful job, it is also incredibly rewarding. Some of us get to ply our craft in a court- room, defend clients when their freedom

diversity in the legal profession. CBA membership led to my involvement with the CBA’s charitable arm, the Chicago Bar Foundation. I joined the CBF board and learned about the many great legal aid organizations in our region and how CBA members and CBF supporters help sustain and significantly impact the work of those organizations. Through my involvement in both the CBA and CBF I have made life-long friendships and shared many great experiences with other lawyers who care deeply about their clients, practices, profession, and communities. In this season of thanksgiving, I am grateful to our members for the opportu- nity to serve as your CBA president, and along with our board of managers, to pro- vide the care and stewardship of our CBA. I will be forever grateful that the CBA and CBF not only provided me with opportu- nities that helped me in my legal career, but more importantly, that both the CBA and the CBF have given me the platform from which to help create opportunities for others.

and liberty is at stake, prosecute crimes, structure and negotiate complicated trans- actions, help government run ethically and efficiently, help disadvantaged clients seek access to justice, use our legal training to make laws and public policy, and many other roles that our training allows us to do that benefit society. Because of my parents’ hard work and sacrifices that enabled me to become a lawyer, I have had the opportunity to counsel clients in complicated deals, rep- resent pro bono clients on matters impact- ful in their lives, to serve in a variety of volunteer public service roles throughout my legal career, and now to be a full-time public servant as Illinois Deputy Gover- nor for Education and president of the Chicago Bar Association. I have been a member of the CBA for almost 25 years, and I can truly say that my CBA membership has not only enhanced my law practice, but also my life. I have received critical training and attended many insightful programs. I have been able to engage in many issues impact- ing our profession, especially increasing

CBA RECORD 9

New Joint Task Force Tackles Legal Regulatory Reform By Sally Daly, CBA Public Affairs Director

T he CBA and the CBF have teamed up on a first-of-its-kind Illinois task force that will identify regula- tory reform recommendations to provide enhanced access and more affordable legal services to the public, while also making the practice of law more innovative and sustainable for lawyers. By creating the task force, Illinois joins a number of states examining legal regulatory reforms in response to an ever- changing legal landscape and a growing gap in the ability of citizens to obtain access to justice. The task force convened its first meeting October 7. “For all the good we are doing as a profession, we can no longer avoid the fact that our system of justice is not working for the vast majority of people it is designed to serve. And as a profession dedicated to service, we as lawyers need to consider new approaches to fulfill our fundamental mission,” said task force Co-Chair and Retired Illinois Appellate Justice Mary Anne Mason. “To accomplish this requires an in- depth examination to modernize the longstanding and outmoded regulations governing our profession that have inhib- ited lawyers’ ability to expand the avail- ability of their services to large segments of the population that needs them.” With more than 50 local and national members, the task force will be divided into several committees that will closely examine initiatives that could improve opportunities for lawyers to connect with consumers and practice law in a more sustainable, financially viable and consumer-centric manner, according to Co-Chair E. Lynn Grayson of Nijman

Franzetti LLP.

“It is imperative that we identify and embrace legal innovations that have the potential to improve how Illinois lawyers practice law and their ability to better serve their clients and the public,” said Gray- son. “We intend to evaluate technologies, rule modifi- cations and other changes including the possible expansion of legal referral platforms to promote a more viable and sustain-

Members of the new joint CBA/CBF Task Force on the Sustainable Practice of Law & Innovation got to work drafting plans at their kick-off meeting in October.

providers and other business and tech- nology entities to make legal forms, documents, and self-help resources more readily available to the public. 4. Undertaking a critical review and assessment of the ARDC professional rules of responsibility with a focus on a renewed “plain language” approach. 5. Assessing whether the limited scope rules for lawyers in Illinois should be expanded beyond civil cases in state court to include misdemeanor, quasi- criminal, or federal court cases. The task force intends to identify and recommend rules changes to the Illinois Supreme Court by the end of the 2019- 2020 bar year, according to Mason and Grayson, and beyond that continue to track and assess ongoing legal innovations and initiatives in other states to ensure that Illinois remains at the forefront on reform issues.

able law practice for Illinois attorneys.” The task force will also identify strate- gies to provide more cost-effective and efficient legal support to the public. This will include recommendations to increase access to justice by optimizing the use of other legal professionals and expanding partnerships with online legal services providers and business and technology entities. Committee work by the task force will focus on the following five areas: 1. Modernizing lawyer referral and law firm models to expand opportuni- ties for lawyers to represent clients in an affordable and financially viable manner. 2. Optimizing the use of other legal professionals or paraprofessionals to assist clients and provide a variety of legal services such as community legal navigators or limited licensed legal technicians. 3. Partnering with online legal service

10 November/December 2019

Winning by Design By Caryn Suder, CBA Record Editorial Board; Loyola University Chicago

P articipants in a recent CLE pro- gram learned how methods used to present compelling stories in movies and television can also help persuade jurors at trial. Karyn J. Taylor, Founder and Principal Trial Consultant at The Strategic Image, and previously an award-winning producer/director/writer for programs such as 60 Minutes, 20/20, and Frontline, spoke at the event Taylor explained that many lawyers fail to understand that unlike jurors in the past, modern jurors expect their infor- mation to be packaged into a compel- ling visual narrative to comprehend and retain it. Jurors are very familiar with the visual formats Hollywood and TV news programs use to tell stories. Failing to deliver trial information in a story using these types of formats makes jurors more likely to become impatient, criticize the presentation, and tune out the lawyers – to the detriment of their clients. She cited a study that showed that adding visuals constantly throughout a trial, from open- ing statement, through witness testimony, and through closing argument, maximizes juror comprehension and retention. A story is a narrative that describes a series of connected events and has a begin- ning, a middle, and an end. Moviemakers

set up the story in Act I, present conflict and/or development in Act II, and resolve issues in Act III. Then they use specific techniques throughout these acts to keep their audience interested. Lawyers need to emulate that. At trial, Act I is the opening statement, Act II is the case in chief and rebuttal, and Act III is the closing argu- ment. Merely having a good plot is not enough. Just as good movies and news stories hook viewers emotionally, lawyers need to engage jurors’ emotions through- out trial. Lawyers need to create empathy for their clients, and one way to do that is to communicate what the client was thinking and what the client’s motive was in acting or failing to act. Jurors want to know the emotional reason that the client behaved the way he or she did. Lawyers too often focus on logic, and merely pres- ent a list of facts and witnesses to the jury. Human stories, however, resonate with jurors much more than any legal argu- ment. Lawyers also need to find and use a “throughline,” an emotionally compelling theme or premise that runs like a spine from beginning to end. In the movies, the plot describes what happened, but the throughline is what the movie is really

Award-winning screenwriter, trial consultant and former 60 Minutes producer Karyn J. Taylor shares some of the storytelling techniques that Hollywood producers use to capture audience attention at the September 20 CLE “Winning by Design: The Masterful Way to Win in Court.” about, such as growing up, trying to save a loved one, or doing the right thing. Law- yers need to find the throughline in their own case, and use evidence, witnesses, and graphics as road signs throughout trial to keep jurors on track. In sum, using the tools employed by Hollywood and television news provides structure and emotional cohesion to the client’s story, creates empathy for the client, and adds drama that keeps jurors engaged. This is the winning design that increases the persuasive power of the lawyer’s presentation.

VOLUNTEER OPPORTUNITY: Immigrant Relief Screening Clinics TheYoung Lawyers Sectionwill partner with the National Immigrant Justice Center (NIJC) to host immigration relief screening clinics for Chicago residents on Tuesday, November 19, 2019 . Volunteer attorneys, law students and Spanish language interpreters are needed for daytime sessions taking place at multiple locations in the city – Wright College and Richard J. Daley College. Prior to the clinic, volunteers will be provided a general orientation by the NIJC team on how to conduct legal screenings for immigration relief. NIJC will pair with local community partners to schedule pre-set appointments with immigrants. Volunteerswill be expected to conduct 1-2 intakes per clinic and interpreterswill be available to assist if needed. This is a one-time volunteer opportunity; attorneys will not be expected to represent any client for whom they conduct a screening. Visit www.chicagobar.org/yls (events) for more information and to volunteer.

CBA RECORD 11

2019 Justice John Paul Stevens Awards By Pamela Sakowicz Menaker, CBA Record Editorial Board; Clifford Law Offices

A s a testament to the “greatest justice in our lifetime” who hails from Chicago, the 20 th Annual CBA Justice John Paul Stevens Award carried on in his honor following his death July 16 at the age of 99. The awardees, and almost everyone in the crowded room at the Standard Club, fondly recalled stories and memories of the revered justice who is so missed as one of the city’s favorite sons who made the profession so proud. His roots were in Chicago’s Hyde Park, where over the years as a Republican appointee he became one of the most ardent supporters on the bench of the rights of liberal causes. To a packed luncheon crowd, the six honorees recognized Stevens, who generally had attended the event created by his clerks two decades ago, for exemplifying all that is good about the profession. In his nearly 40 years on the bench, it is reported that Stevens wrote more than 1,000 concurrences and dissents while on the Seventh Circuit Court of Appeals and the U.S. Supreme Court. In his obituary, The New York Times wrote, “His frequent dissenting opinions, he said, arose from a conviction that both the public and the law were best served when differing views were expressed and explained, rather than sup- pressed for the sake of surface collegiality.” The keynote speaker, Judge William J. Bauer of the Seventh Circuit, spoke of his friend of half a century. A recipient himself of the Award in its inaugural year, Bauer remembered the bow-tied jurist whose funeral he attended earlier this year at the request of Stevens’ family. “No matter what he did, whatever side he took, he was not offensive about it. He was genuinely a nice man and a friend of us all,” Bauer said. “If we had more people like John Paul Stevens, we’d be better off, we’d be better people and we’d certainly be happier.” Bauer, who sat on the awards commit- tee, said of the recipients, “Your practice is in the image of John Paul … You’re kind, you like people, you have a passion for the

The 2019 Stevens Awards honored six prominent attorneys and judges from the top levels of government, the judiciary and the private sector. Pictured at the Stevens luncheon are (left to right) Chicago Bar Foundation President Steven A. Weiss, Retired Cook County Circuit Court Law Division Presiding Judge William D. Maddux, U.S. District Court Judge Sharon Johnson Coleman, Retired Cook County Circuit Court Sixth Municipal District Presiding Judge Sheila M. Murphy, Joseph A. Power Jr., Partner at Power Rogers & Smith LLC, Attorney Mark L. Rotert, and CBA President Jesse Ruiz. Chicago Mayor Lori Lightfoot also received a 2019 Stevens Award.

District of the Circuit Court, and who practiced of counsel at Stevens’ former Chicago law firm Rothschild, Stevens, Barry & Myers, recalled how “John Paul Stevens exhibited humor and compassion.” Mark Rotert, an attorney of 42 years primarily in criminal law, accepted the award recalling his appearance in a case before Stevens on the Supreme Court: “No matter how important the person, no matter how solemn the occasion, there is always time to be compassionate, to be welcoming and to be of good humor.” Joseph A. Power Jr., founding partner of Power, Rogers & Smith, summed up Stevens’ career: “His positions were always apolitical, logical and well-reasoned, stand- ing up for the rule of law. … I’m grateful that today I receive the award, but Justice John Paul Stevens will be honored in having this award named after him for eternity.” The 7 th U.S. Circuit Court of Appeals is having a memorial proceeding for the late U.S. Su- preme Court justice John Paul Stevens at 9:30 a.m. on Dec. 5 at the Dirksen Federal Courthouse , 219 S. Dearborn St. The event is open to the public. Stevens, who served on the 7th Circuit before joining the high court in 1975, died in July at the age of 99.

law and are just decent folk altogether.” Bauer has never missed an awards cer- emony, CBA President Jesse H. Ruiz told the audience to great applause. Although Chicago Mayor Lori E. Lightfoot and member of the CBA Board of Managers was not in attendance, due to the Chicago teachers’ strike that began that morning, the other honorees paid homage in recorded messages to the Justice who attended the University of Chicago and Northwestern University School of Law. Awardee Sharon Johnson Coleman of the U.S. District Court for the Northern District of Illinois, said, “The CBF’s well- known motto of ensuring access to justice to all is an apt description of Justice Ste- vens’ life’s work.” She added that Stevens “has left a legacy of public service to remind us to be humble no matter how high we rise, have mercy towards all who come before us and, above all, to do justice to the best of our ability.” William D. Maddux (retired), former Presiding Judge of the Cook County Cir- cuit Court LawDivision, expressed humil- ity in accepting the award on behalf of all of the judges of the Law Division, who, he said, work “with an eye toward justice” in handling 13,000 new cases filed every year in the county. Sheila M. Murphy (retired), former Presiding Judge of the Sixth Municipal

12 November/December 2019

Celebrating 50 Years of Membership – The CBA was proud to recognize 80 members who are marking 50 years of association membership this year. CBA President Jesse Ruiz hosted a luncheon at the Standard Club October 11 for some of those members and their families to thank them for their steadfast commitment and dedication to the legal profession and the CBA. Front Row (left to right): Earl J. Barnes, Gerald J. Smoller, Judge Haskell M. Pitluck, Judge RolandW. Burris, Judge Timothy C. Evans, Keith L. Davidson, Hugh C. Griffin and Michael E. Reed. Middle Row (left to right): Michael Daley, Charles A. Marvin, Richard L. Stavins, Dennis M. Feinberg, Edwin I. Josephson, Steven P. Bloomberg, Jeffrey G. Liss, John Levin and CBA Second Vice President E. Lynn Grayson. Back Row (left to right): Richard F. Friedman, Christopher B. Cohen, Jay A. Frank, Edward B. Mehlman, CBA President Jesse Ruiz, E. Garnet Fay, Charles M. Steinberg, David L. Ader, Richard E. Zulkey, Wilbur H. Boies, CBA Assistant Executive Director Beth McMeen, CBA First Vice President Maryam Ahmad and CBA Executive Director Terry Murphy.

50-Year CBA Members Honored

Managers is working on making the CBA even more relevant to younger lawyers. The program concluded with a distribu- tion of service awards and a group photo- graph. The luncheon, which has become a CBA tradition, was appreciated by all.

person U.S. Supreme Court justices he had known only through their opinions. Levin commented on how the CBA currently provides a comfortable place for lawyers to meet in an increasingly impersonal world. President Ruiz noted that the Board of

On October 11, the CBA honored mem- bers celebrating their fiftieth year of membership at a luncheon at the Standard Club. Eighty CBA members reached that milestone this year. Thirty of them and their guests attended the program, which was hosted by Jesse H. Ruiz, President of the Chicago Bar Association. Before the formal program, the attendees had the opportunity to socialize and renew old friendships. After a brief musical interlude by cast members of the 2019 Bar Show, Presi- dent Ruiz introduced Timothy C. Evans, Chief Judge of the Circuit Court of Cook County, and John Levin, longtime Legal Ethics columnist of the CBA Record , who each gave brief remarks. In addition to reminiscing about the past, the speakers discussed the ways the CBA had been important to them, and its continuing importance to lawyers and the legal profession in Chicago. Notable to each was the opportunity the CBA pro- vided them to meet and work with other Chicago lawyers in a friendly and neutral environment. Judge Evans recalled how the CBA gave him the opportunity to meet in

CBA RECORD 13

Protecting Clients’ Intellectual Property: Overview of Patents, Trademarks, and Copyrights Discussed at CBA Seminar By Amy Cook, CBA Record Editorial Board; The Farmer Chef Alliance

not cover titles and short phrases, basic shapes, symbols, functional objects (e.g., vases, apparel), or works authored by U.S. government. As with a patentable invention, copy- right ownership originally vests in the creator, but it can be transferred by assign- ment, license, bequest, or operation of law. Further, works created by an employee or specially ordered or commissioned may be considered “works for hire,” where the employer or party commissioning the work owns the copyright. Work for hire agree- ments must be in writing. To successfully claim copyright infringe- ment, the plaintiff must show access to the work and substantial similarity. Dam- ages will be the copyright owner’s actual damages plus any additional profits of the infringer, or statutory damages. The copyright must have been registered with the Patent and Copyright Office to qualify for statutory damages, which can be up to $150,000 if the infringement was willful. Do you have further questions regarding IP law? The folks at Google would prefer you don’t google it – instead, look it up on the Google search engine. Both new attorneys and general practi- tioners were out in force for an Oct. 15 CBA Intellectual Property Law Commit- tee CLE exploring the basics of intel- lectual property law and its increasing importance to businesses and individu- als. Presenters on trademark, copyright and patent laws included Jessica Ekhoff of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, and Adam Reis of Irwin IP LLC who chairs the CBA Intellectual Property Law Committee. To watch the on demand video of “Pat- ent, Trademark and Copyright Basics for New Attorneys and General Practitioners” (10/15/2019), visit www.chicagobar.org/cle for more information.

Trademarks When you hear “Just Do It,” what pops into your mind? When you’re sitting down to watch a movie and hear a lion roar, which film studio do you know it’s from? Would you anticipate receiving an expen- sive bauble if someone hands you a gift box in a beautiful robin’s-egg blue shade? These are just a few examples of instantly-recognizable trademarked brands. A trademark is commonly a slogan or logo, but Jessica Ekhoff, of Pattishall McAuliffe, explained at a recent CBA seminar that trademarks can be “anything that can be used to set your brand apart.” Thus, a word (Ford cars); logo (the Nike swoosh); packaging (Coke bottle shape); color (Tif- fany blue); sounds (MGM roaring lion); and even scents –apparently, there is a bubblegum-scented sandal – can all be trademarked. Clients will want to consider trade- marking their brand for several reasons: after they invest in expensive marketing campaigns, they don’t want a competitor “free-riding” off that campaign. A strong trademarked brand also helps with quality control, sets the brand apart, helps custom- ers buy with confidence, and builds loyalty. Trademarks are categorized along a spectrum of distinctiveness ranging from weakest to strongest: generic, descriptive, suggestive, arbitrary, fanciful. Fanciful is a word that did not exist before, such as “Pepsi.” Arbitrary is a term that previously existed but has no relationship to the prod- uct it is now used on, such as “Apple” for a computer. Ekhoff cautioned against trade- marks becoming genericized—a trademark should always be an adjective, not a noun or verb. For instance, elevator and thermos were once trademarks. As long as they are in use, trademarks can last hundreds of years.

Patents Another form of intellectual property for clients to consider are patents. Patents, said Justin DeAngelis, of Quarles &Brady, pro- tect “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Clients may want to acquire a patent to protect their investment in research and design, as a deterrence to copying; to pre- vent products from being manufactured overseas and imported into the U.S.; and to receive revenue from licensing. Most patents today are small improve- ments on existing patents, and commonly fall into two categories: (1) utility, for struc- tural and functional features, which last 20 years from filing date, and (2) design, for ornamental or aesthetic features and last 15 years from issue. DeAngelis noted that 84% of compa- nies’ values in 2015 are intangible assets such as IP. Who owns an invention? An inventor is one who actually conceived the claimed inventive subject matter or who made a substantial contribution to any claim, not “merely a technician who performed the work.” The inventor initially owns the work; however, employers own the invention if the employee has an obliga- tion to assign it to their employer or if the employee, such as an engineer, was “hired to invent.” Copyright Christopher Johnson, assistant director of education for Lawyers for the Creative Arts, said that copyright protects “an origi- nal work of authorship fixed in a tangible medium of expression.” Translation: the author did not copy from another source, and it can be reproduced. Copyright pro- tection gives the holder the exclusive right to copy, reproduce, create derivative works, distribute, perform the work publicly, and display in a public showing. It does

14 November/December 2019

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practice area committee meetings and Webcasts, one-on-one career counseling sessions, networking socials, leadership seminars, and pro bono/community service events to enhance their resumes and kick start their legal career. If you are aware of a new lawyer who has not yet activated his or her complimentary membership, please encourage themtodo soby calling theCBA’s Membership Department at 312-554-2131. Toeachof thenewlawyers, theCBAsends its heartiest congratulations andbestwishes for a successful career in the law!

On November 7 approximately 1300 new attorneys will be admitted to practice law in the State of Illinois. CBA President Jesse Ruiz will be on hand to congratulate and welcome the new admittees who take their oath in the First District. To introduce new admitttees to the legal profession, the CBA offers a complimentary one-year membership which includes the 6-hour New Lawyer Basic Skills Course and 9 additional hours of MCLE credit (required within thefirst year of practice). New lawyers are also invited to attend free noon-hour

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The CBA is pleased to offer free meeting room space at Association Headquarters (321 S. Plymouth Ct., Chicago, IL 60604) as a benefit toourmembers.Themeeting rooms create the perfect environment to work between meetings or courtroom appear- ances, or to escape the office for a couple

“DO-IT-YOURSELF MESSIAH” HOLIDAY CONCERT December 11, 2019 @ 7:30 p.m. Save the date! The CBA Symphony Orchestra and Chorus will present the Christmas portion from George Handel’s best-known oratorio “Messiah” on December 11, 2019, at 7:30 p.m., at St. James Episcopal Cathedral (Wabash at Huron). Special guests include The American Prize Chicago Oratorio winning vocal soloists. Purchase tickets online at https://cbasomessiah.bpt.me.

CBA RECORD 15

Chicago Bar Foundation Report

Leading Our Profession into the Future The CBA/CBF Task Force on the Sustainable Practice of Law & Innovation By E. Lynn Grayson, Justice Mary Ann Mason (ret.), and Jessica Bednarz

T he practice of law has changed over the years and continues to change at an even quicker pace today. The days when lawyers relied on books (and pocket parts) to Shepardize cases, and associates spent countless hours holed up in conference rooms reviewing banker’s boxes of documents are long gone. Given the speed and precision of computer programs that can perform these functions, no one in the legal profession waxes nostalgic for the “good old days” on that front. But although in these and other ways technology and innovation have undeniably changed for the better the way we practice law, we are not seeing the same kinds of changes in the way we deliver legal services to those in need of them. In fact, virtually every profession other than law has harnessed the power of technological innovation to stream- line and simplify the delivery of expertise to consumers. The business model for the prac- tice of law has remained stagnant, and we are facedwith a legal market that demonstrably is not working well either for lawyers trying to serve the consumer market or for the public in need of legal help. For all the good we do as a profession, we can no longer avoid the fact that our system of justice is not working for the vast majority of people it is designed to serve. The percentage of litigants appearing in court cases unrepresented by counsel has

increased exponentially. At the same time, lawyers struggle to maintain economically viable practices. Although the reasons for this growing market failure are multifaceted and complex, one overarching driver is that the Rules of Professional Conduct governing the business of law – that is, the way legal services are delivered ‒ have not kept upwith the pace of change around us. How Did We Get Here? As Professor Bill Henderson of the Indiana Maurer School of Law noted in a compre- hensive July 2018 Legal Market Landscape Report, the economics of law are not work- ing in our favor, and our stifling ethics rules – particularly those regulating the business of law – are to blame. Professor Henderson notes that the amount of money spent on consumer legal services over the past five years has declined by nearly $7 billion, while the percentage of litigants needing legal services (but deciding to forgo them) is on the rise. During the same period, the segment of the market for corporate legal services increased by more than $26 billion. In other words, a party in need of and able to pay a lawyer can readily find one, while “middle market” cli- ents, unable to pay prevailing hourly rates for legal representation, increasingly go it alone. Add into the equation the well docu- mented fact that the economics of law have changed at a time whenwe havemore lawyers

Presenters at the task force kick off included (left to right) Chicago Bar Foun- dation Executive Director Bob Glaves, Task Force Co-Chair E. Lynn Grayson of Nijman Franzetti LLP, Co-Chair and Retired Illinois Appellate Justice Mary Anne Mason and Executive Director of the Illinois Supreme Court Commission on Professionalism Jayne Reardon.

Information about the CBA/CBFTask Force on the Sustainable Practice of Law& Innovation, including the charter, member and com- mittee list, and resources, can be found at https://chicagobarfoundation.org/advocacy/ issues/sustainable-practice-innovation/.

16 November/December 2019

than ever before. For a variety of reasons, it is more challenging than ever to run a sus- tainable law practice, particularly for lawyers serving the consumer market, and lawyers in all practice settings are struggling to adapt. In short, we are experiencing a failure in the market for consumer legal services. And this is a grave situation, not only for lawyers and legal consumers, but for our court system as well. Is There Hope? Yes, but maintenance of the status quo is not an option. Our profession is unique in that we regulate ourselves. That means that it is within our power to propose changes to these rules to the Illinois Supreme Court that can serve as a first step to ensuring a sustainable legal profession for future generations of law- yers. To start that process, we need to take a fresh look at the rules governing the business of law and the larger legal market. The CBA/CBFTask Force is premised on

most of us could have imagined even a few years ago. Yet the current Rules make it difficult for lawyers to compete with the new online and technology entities that are offering increasingly robust legal resources to the public.The task force will explore how the Rules might be updated to enable lawyers both to partner with and compete on a level playing field with these new entities. 4. Plain Language Ethics Rules. As we look at the Rules of Professional Con- duct governing the business of law, the significant potential for simplification is apparent. One obvious example is the confusing provisions of Rule 7 relating to marketing and advertising. The task force will explore ways to make the rel- evant Rules governing the legal market more understandable for lawyers and the broader public alike. 5. Expanding the Limited Scope Repre- sentation. Illinois already has been at the forefront of creating Rules that enable Illi- nois lawyers to offer “unbundled,” limited scope representationwhere appropriate to provide clients with options for varying levels of service. The task force will look at ways we can build on those Rules to enable and encourage lawyers to make greater use of limited scope, allowing for more affordable and accessible services. We Want to Hear from You Although logistics limit the number of members who can formally serve on the Task Force, we would like to give the entire CBA membership and other stakeholders a chance to provide feedback and input.We are developing plans to create opportunities for members to do so over the coming months. In the meantime, please contact us if you have questions or suggestions or would like more information. E. Lynn Grayson is the CBA’s Second Vice President and a Partner at Nijman & Franzetti. Lynn is co-chairing the newCBA/ CBF Task Force with Justice Mary Anne Mason, who is the CBF Board Secretary. Justice Mason recently retired from the Illinois Appellate Court and is now with JAMS Inc. Jessica Bednarz is the CBF Director of Innovation & Training and is the lead staff for the Task Force.

the recognition that a healthy legal profes- sion and improved access to justice for the public are not opposing concepts ‒ they are inextricably linked. To achieve those twin goals, we need to promote innovation in our profession. The Task Force will evaluate technolo- gies, rule modifications, and other changes, including the possible expansion of legal referral platforms, to promote a more viable and sustainable law practice for Illinois attor- neys that better serves the public. The New CBA/CBF Task Force On October 7, the CBA and CBF officially kicked off the new task force. Its goals are twofold. First, the task force aims to submit recommendations regarding potential changes to the Rules of Professional Conduct to the Illinois Supreme Court by the fall of 2020. The task force will then continue to identify, track, and assess ongoing legal inno- vations and initiatives in other jurisdictions (several other states are looking at these issues as well) to ensure that Illinois remains at the forefront on these issues. The task force will focus on the following five areas; we plan to feature each area inmore detail in upcoming issues of the Record: 1. Modernizing Lawyer Referral and Law Firm Models. The way we currently regulate the business of how lawyers can market and connect to potential clients ‒ and how the public can find good legal help ‒ was literally written for another era. The task force will explore ways to update these Rules to give lawyers new and better options to connect to potential clients while still adhering to the under- lying purposes of protecting clients and protecting the independence of lawyers. 2. Optimizing the Use of Other Legal Professionals. The task force will explore potential updates to the Rules to recognize the roles of other legal professionals to both help better connect potential clients with lawyers and supplement our services as lawyers so that legal help is more afford- able and accessible for the public.We will look at promising models already being used in law as well as successful models used in other professions. 3. Partnering with Online Legal Service Providers andOtherBusiness andTech- nology Entities. Technology innovation in law is growing at a pace beyond what

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CBA RECORD 17