The Docket - May 2022 by Town Square Publications, LLC

THE

DOCKET The Official Publication of the Lake County Bar Association • Vol. 29 • No. 5 • May 2022

2022 LCBA

GOLF OUTING THURSDAY, JUNE 23, 2022 White Deer Run Golf Club • 250 W. Gregg’s Parkway, Vernon Hills

CONFERENCE ROOM For meetings only. Seats 16 – 20 comfortably During business hours (8 am – 5 pm) • Member- Free • Non-Member $150/1st hour. $50/hour after • Non-Member, Not-for-Profit: $25/hour

2022 LCBA OFFICE RENTAL PRICING

After Hours (5 pm – 9 pm) • Member - $25 per hour • Non-Member – Not Available • Non-Member, Not-for-Profit: $50 per hour

MEMBER CENTER “The Bar” Accommodates up to 100 people During business hours (8 am – 5 pm) Members (add $25/hour for after hour events) • Meeting only (individual or group, no food or beverages served: Free • Self-Service reception or party (provide own alcoholic beverages): $50 per hour • Hosted beer & wine reception or party (beer & wine provided by Association): $250/ 1st hour, $50/hour after Non-Members: (add $50/hour for after hour events) • Meeting only (individual or group, no food or beverages served): $50 per hour • Self-Service reception or party (provide own alcoholic beverages and food): $300/ 1st hour, $50/hour after • Hosted beer & wine reception or party – Not Available Non-Member, Not-for-Profit: (add $25/hour for after hour events) • Meeting only (individual or group, no food or beverages served): $25 per hour • Self-Service reception or party (provide own alcoholic beverages and food): $150/1st hour, $25/hour after • Hosted beer & wine reception or party – Not Available Association Committee Meetings (Conference Room or Member Center) Without beer & Wine - Free With Hosted Beer & Wine - $150 flat fee (for 5 – 15 people), $200 (over 15 people) Room rentals are based on availability. Rentals include use of A/V already in room (phone, TV, Speaker. WIFI). All rentals include free parking in our large, well-lit, 45 vehicle parking lot adjacent to the LCBA building.

Contact the LCBA Office at 847-244-3143 or info@lakebar.org

Contents THE DOCKET • Vol. 29 • No. 5 • May 2022

FEATURES 8 Remarks Upon Receiving the LCBA Lifetime Achievement Award, February 22, 2022 12 Passcode Reveal BY STEPHEN J. RICE

12 Unfulfilled Promises of Integration and Social Mobility: A case study of the United States Military

A publication of the

BY JOSEPH STEINFELS 300 Grand Avenue, Suite A Waukegan, Illinois 60085 (847) 244-3143 • Fax: (847) 244-8259 www.lakebar.org • info@lakebar.org THE DOCKET EDITORIAL COMMITTEE Jeffrey A. Berman,Co-Editor Hon. Charles D. Johnson,Co-Editor Jennifer C. Beeler Hon. Michael J. Fusz Hon. Daniel L. Jasica Kevin K. McCormick Hon. Raymond J. McKoski Tracy Poulakidas Stephen J. Rice Neal A. Simon Hon. James K. Simonian Rebecca J. Whitcombe Alex Zagor STAFF Greg Weider Executive Director Jose Gonzalez Assistant Executive Director Nancy Rodriguez Receptionist

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COLUMNS 2 President’s Page Goodbye, and Thank You for the Opportunity BY JOSEPH FUSZ, PRESIDENT

LCBA EVENTS IFC Office Rental Pricing 5 New LCBA Members 5 Calendar of Events 5 Grapevine 15 Family Law Seminar Sponsors 19 LCBA 2022 Golf Outing 23 LCBA Membership Picnic 29 2022 Civil Trial & Appeals Seminar & Golf 31 Installation Social 31 Lawyer Referral Service 32 Monthly Committee Meetings BC Member Reception Sponsorship Opportunities

4 The Chief Judge’s Page Liberty Bell Awards, a Lake County Tradition BY CHIEF JUDGE MARK L. LEVITT

6 Bar Foundation A Heartfelt Thank You BY DOUGLAS DORANDO, PRESIDENT

16 The Meeting Minutes March 15, 2022 BY DANIEL HODGKINSON, SECRETARY

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Goodbye, and Thank You for the Opportunity “What we call the beginning is often the end. And to make an end is to make a beginning. The end is where we start from.”

The

President’s Page

BY JOSEPH FUSZ PRESIDENT

T.S. Elliot

ay is the last President’s Page that I have to write. This month is the end of my term as the President of

Joseph Fusz President Tara Devine First Vice President Katharine Hatch Second Vice President Kevin Berrill Treasurer Daniel Hodgkinson Secretary Hon. Patricia Cornell Immediate Past President Dwayne Douglas Hon. Jacquelyn Melius Craig Mandell Sarah Raisch Jeffrey O’Kelley Jeremy Harter

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the Lake County Bar Association, and the next marks the beginning of my new role as a Past President of our great organization. If I could thank everyone in writing who made this year a success, the entire Docket issue would be filled by my President’s Page. Furthermore, if this has been a successful year, then the credit belongs not to me, but to all our members and staff who made it happen. It may not have been the year that we wished it would have been, but we certainly did the best that we could. The promise of a “new normal year” last summer faded with the rises and falls of the delta and omicron variants of coronavirus, and led to a return to remote events and limited in-person engagement. However, with all of the challenges that we

faced over the last year, we had a number of successful events. From our Memorial Service, Installation Social, and Holiday Party, to the Gridiron show and Liberty Bell Awards luncheon, we did our best to balance public health safety with a desire to see each other in person. Furthermore, while it was not ideal, our virtual Fall and Spring Luncheon Series, virtual committee seminars and Zoom President’s Awards Ceremony gave us an opportunity to come together, learn from one another, and celebrate the achievements of our members. Participation in the Lake County Bar Association is voluntary, from the attendance of our general members to the weekly work of the officers of our organization. I am truly grateful of all the efforts of

the members of the LCBA Board of Directors, our Committee Chairs, and all the members who gave of their time, talent, finances, and energy over the last year. Specifically, I would like to thank Dwayne Douglas, Hon. Jacqueline Melius, Jeffrey O’Kelley, Craig Mandell, Sarah Raisch, and Jeremy Harter for all of their work on the Board of Directors. Thank you as well to our Treasurer, Kevin Berrill, for all of his diligence, hard work and attention to detail regarding the finances of the LCBA. Additionally, I am also extremely excited for what the future holds for the Bar Association, and the upcoming presidencies of Tara Devine, Katharine Hatch, and Daniel Hodgkinson. Their work supporting the mission of the Lake

County Bar Association over the years has been exemplary, and this past year during my Presidency was no exception. They will all do an amazing job in this leadership role, and we are all thankful they have volunteered for this great responsibility. Hon. Patricia Cornell was one of the first people I met in the Young & New Lawyers Committee back in 2006. While it has been a long time since the LCBA Softball Team on Friday nights, an Awesome 80’s Prom night outing, and the annual Bowl-a-Thon, it has been an honor to come up with her through the leadership ranks of the Lake County Bar Association and succeed her as President. Her advice, input and guidance have been a steadying force for the last twelve months, and I am very thankful for her friendship. We are fortunate to have an incredible staff at the Bar Association, and I could not have managed getting through the past year without our Executive Director Gregory Weider. While I am sure that he will be glad to see me calling him less frequently, Greg brought a wealth of knowledge and expertise to our organization when he joined us last spring, and it has been an absolute pleasure working with him over the past twelve months. Additionally, Jose and Nancy continue to do extremely vital work daily for the LCBA, and are extremely deserving of recognition. I would be remiss if I did not also thank our partners on the Lake

County Bar Foundation, including all the members of their Board of Trustees, and especially President Douglas Dorando and Immediate Past President Nicholas Riewer. Their work and partnership with the Association is crucial toward the missions of both organizations, and I am extremely grateful for all their hard work, insights and contributions during the past year. I want to extend my best wishes to Doug as he enters the second year of his presidency. Additionally, the Lake County Bar Association has a wonderful relationship with the 19th Judicial Circuit, and I want to thank the judiciary and the judicial administrative staff for their organization, participation, and contributions to the legal community events and our substantive legal committees over the last year. The Constitution Day Presentation, Veterans History Project, United Way Book Drive, and Liberty Bell Awards were great events that engaged the legal community, the LCBA, and the greater Lake County community. Additionally, I would like to thank Chief Judge Mark Levitt and former Chief Judge Diane Winter for their leadership and contributions during these unprecedented times, and their advice and input on collaborative events over the years. Finally, I have to thank my wife Nicole, as well as my parents, Michael and Fatima, for all of their help over the past year. Having support at home definitely

makes balancing all of the professional responsibilities more manageable, and I could not have done it without all of their assistance, love and guidance. I know that there have been a number of retirements that have been announced (and probably missed by many of our members) over the last few years; this says nothing of the unannounced departures from the legal profession throughout the pandemic. We may not even realize the extent of our collective loss until we are all back together again in-person for court, bar association events, or other get-togethers. There will be many people that we never got to say the appropriate good-bye to, and we may not get the chance in the future. Charles Schulz once wrote the following missive about good-byes: “Why can’t we get all the people together in the world that we really like and then just stay together. I guess that wouldn’t work. Someone would leave. Someone always leaves. Then we would have to say good-bye. I hate good-byes. I know what I need. I need more hellos.” My last message as President to the members of the Lake County Bar Association is this: say hello at every opportunity. That could be by introducing yourself to someone at a bar association event. It could be inviting a new member to join our organization. “Saying hello” could be to participate in a committee activity, or volunteer to present at a seminar. You could write a Docket article or a skit

for the Gridiron. Any of these methods makes the LCBA stronger and more vibrant, and helps our members get more out of the organization. Take the time to say hello – we may not always be able to do so in the future, and there are some chances that we cannot get back. There are still upcoming opportunities to say “hello” to one another this month. Friday, May 20 will be our Annual Membership Picnic at the Greenbelt Forest Preserve in North Chicago. It will be a great opportunity to meet someone new and reconnect with other Association members in advance of the summer. Also, the Civil Trial & Appeals Seminar & Golf Outing will be on Thursday, May 26 at the Glen Flora Country Club in Waukegan, for those who would like to hear some amazing presentations, get the last necessary CLE hours before the June reporting deadline, and enjoy some golf on one of Lake County’s most historic courses. Finally, while it is not this month, the Installation Social for President Tara Devine will be on Friday, June 3 at Ivanhoe Country Club, and it will certainly be an event you will not want to miss. So while this may be “Goodbye” as President of the organization, it is also most assuredly “Hello” in my new role on the Board of Directors, and hopefully for many years to come. Thank you for the opportunity to serve the Lake County Bar Association as President for the past year. It has been an honor.

Liberty Bell Awards, a Lake County Tradition

pring season is also award season, and this year’s presentation ceremonies have certainly garnered a lot of attention. Unlike the glitzy programs that have drawn interest for all the wrong reasons, we who serve in the 19th Judicial Circuit try to recognize people and organizations for the right reasons. Each year Lake County Circuit Judges seek to recognize both an individual and

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an organization or group for their efforts in advancing the cause of justice throughout our court system. By conferring the Liberty Bell Award, we hope to not only single-out exemplary service, but also to promote respect for the law and foster a better understanding of the justice system. The Liberty Bell Award originated in Michigan in 1962. In 1964, the American Bar Association formally endorsed the

The

Chief Judge’s Page award for bar associations nationally. It was originally conceived as an award for non-lawyers with criteria that differed from stateto-state, but today it broadly recognizes those that give of their time to promote a better understanding of the law, our legal system, and the roles of the various participants. In Lake County, the 19th Judicial Circuit began awarding the Liberty Bell in 1996. Beginning in 2005, the circuit began the tradition of presenting the award in memory of Judge Thomas R. Smoker, a respected Lake County Judge who passed away in 2004. Our award is given to an individual and an organization who promote a better understanding of the rule of law, encourage greater respect for law and the court system, stimulate a sense of civic responsibility, and contrib-

BY CHIEF JUDGE MARK L. LEVITT ute to good government in the community. This year the 19th Judicial Circuit has chosen the following two recipients: (1) our magnificent team of court interpreters; (2) Harold Winer, who has been a stalwart pillar of our justice system. Our court interpreters, led by their supervisor Betty Atkinson, have always been a vital and integral part of the court system. The team is comprised of Betty, Orlando Penate, Sara Diaz, Teresa Cuesta, and Monica Salido Fisher. They are always prepared and oftentimes are called upon to work under challenging conditions. I have witnessed first-hand their exemplary work and am impressed by their dedication and commitment to helping our courts run smoothly. Hal Winer is this year’s recipient of the individual

award. Hal has been a vital part of the Lake County court system for nearly 60 years. Hal began his career in court in 1956 as a Cook County Juvenile Probation Officer responsible for clients who resided on the South Side. He then entered law school at John Marshall Law School, attending classes at night before graduating and becoming only one of ten graduates to pass the bar exam. Beginning in 1963 and continuing today, Hal has worked in Lake County courtrooms as an attorney and the Deerfield Village Prosecutor—the longest serving in Lake County history. Indeed, you would be hard-pressed to find any attorney who works in our county who doesn’t know

Hal! Hal is an outstanding attorney, a great role model, and a friend to all. Hal exemplifies all the qualities of a recipient of the Liberty Bell Award. On behalf of the 19th, I want to extend our congratulations and our thanks to all of this year’s recipients!

Welcome

New LCBA Members

ATTORNEY Christopher Alan Wood Kerbawy Prairie State Legal Services Inc. Rachel Elizabeth Ivey Navy JAG Corps Thadd J. Lewis Fidelity National Title STUDENT Sarah Stultz

The

Grapevine 2

Family law attorney Craig M. Mandell has joined the Bannockburn office of Beermann LLP. Craig can now be reached at cmmandell@beermannlaw. com or (312) 262-2634. Assistant State’s Attorney Kyle Doyle and her husband Rob are the proud new parents of Lorelei Jolie, their third child, who was born at the beginning of April. Practicing both criminal and family law, attorney Mary L. Cole has joined Patrick Brady to form Brady Cole Trial Lawyers in Gurnee. They can be reached at mary@ bradycolelaw.com or pat@ bradycolelaw.com, or at (847) 752-9639.

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2 2

Calendar of Events

FLAG Committee Meeting May 11, 2022 12:00 p.m. Real Estate Committee Meeting May 12, 2022 5:30 p.m. Ivanhoe, IL Membership Picnic May 20, 2022 12:15 p.m. - 1:15 p.m. Greenbelt Cultural Center North Chicago, IL 2022 Civil Trial & Appeals Seminar & Golf May 26, 2022 8:15 a.m. - 5:30 p.m. Glen Flora Country Club Waukegan, IL

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May 2022

A Heartfelt Thank You

here has the time gone? As you open this

BOARD OF TRUSTEES Douglas Dorando President Carey Schiever Vice President Perry Smith, Jr. Treasurer Joan Fratianni Secretary Nicholas Riewer Past President Jennifer L. Ashley Jeffrey A. Berman Nandia P. Black Kristie Fingerhut Hon. Fred Foreman (Ret.) Scott B. Gibson David J. Gordon Keith C. Grant Fredric B. Lesser Amy L. Lonergan Steven P. McCollum Joseph McHugh Hon. Michael Nerheim Michael Ori Shyama Parikh John Quinn, Sr. Eric Rinehart Melanie Rummel David Stepanich Hon. Henry C. Tonigan (Ret.)

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Docket, you’ll be celebrating the success of Joe Fusz’ term as President of the Lake County Bar Association. Similarly, I would like to take a moment to thank Joe for the partnership he showed the Foundation throughout his term in addition to his leadership at the Bar Association. Similarly, the Foundation wants to draw the entire legal community’s attention to the retiring members of the Foundation Board of Trustees -- specifically, the Honorable Fred Foreman, the Honorable Henry “Skip” Tonigan, and Attorney Amy Lonergan. Fred and Skip have both truly been bedrock supporters of the Foundation for many years, seeing it transform and flourish as an organization in the Lake County legal community. I believe that I can speak for the whole Board in noting how much

BY DOUGLAS DORANDO PRESIDENT we all appreciate their presence, and wishing them a more than well-earned relaxing and retirement full of joy. I’d like to also thank Amy for her assistance and support for the Foundation over her term, notably in handling the issues related to the Tax appeals for the building never accepting no for an answer. This also marks the point in the year where your membership renewals will begin to be paid, and I write to remind you that the dues check off to the Foundation is our primary source of revenue for the charitable purposes of the Foundation, so I want to take a moment to also thank those of you who gave last year, and invite each of you to do so this in this coming fiscal year. Just this month, we again gave donations to two important projects in

the legal community: the 19th Judicial Circuit’s Law Day events, and to support the Art Impact Project’s programming, serving many vulnerable populations in Lake County, including at-risk youth, incarcerated adult men and women, juveniles coming from incarceration/detention, students identified as having academic and behavioral issues, adolescents with mental health challenges and trauma, veterans with PTSD, as well as adolescents and adults in addiction and recovery treatment. We strive to support these endeavors and programs, and it is through our legal community’s generosity that we are able to do so. I ask you to once again not to delay, and make your contribution through your annual dues renewal.

OUTDRIVE BRAIN CANCER - Fundraiser -

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1PM

JUNE 9, 2022

Glenview Park Golf Club Please join us for a round of golf in support of brain tumor patients in need! Registration includes lunch, 18-hole scramble, carts, open bar, skills games, cockatil reception with awards and auction items. 11:30 a.m. 1:00 p.m. 6:00 p.m. Foursome - $750

Check-in and Lunch Shot Gun Start Cocktail Reception

Single Golfer - $200

Reception Only - $75

Remarks Upon Receiving the LCBA Lifetime Achievement Award, February 22, 2022 INTRODUCTION BY STEPHEN J. RICE I once worked for Rick Lesser. Back then, the firm’s annual holiday party often occurred at the Forge Club in Vernon Hills. The Forge had a room that comfortably fit the firm’s partners and employees, and at one end it had a beautiful wall of scotch encased in glass. Rick always joked that if the apocalypse came, he was making a beeline to the Forge and breaking that glass! Alas, the Forge Club closed years ago. It was recently demolished, and I am sure that this has nothing to do with Rick’s impending retirement. Well, I’m not completely sure! I had the honor of introducing Rick at the February 22 luncheon at which the LCBA presented Rick with a Lifetime Achievement Award. Rick has been a longtime friend and mentor since I worked for him in those early years of my career, acquiring from him more than just a taste for Scotch. I am one of his many successors as LCBA President and can say, without reservation, that I would have never had the opportunity to lead the LCBA without his influence. But enough about me. I have seven things you should know about Rick. 1. BUSINESS IN FRONT, PARTY IN THE BACK: Most people know Rick from LCBA events, which I would call our professional “party in the back.” Most readers likely know him this way, because most lawyers don’t practice in our probate courtroom.

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But if you only know Rick socially, then you have just a partial image of him. When you see Rick in the courtroom, or the office with clients, or in the LCBA board room, you see a very professional, intelligent—one might even say very sober—lawyer of exceptional skill. Rick is the kind of lawyer who, all things being equal—and often when they are not equal—wins. 2. MENTOR LIKE YOU MEAN IT: We need great lawyers like Rick to mentor the next generation of lawyers, and he does. Not long after I started with Lesser, Lutrey and McGlynn, LLP, Rick said “let’s go out to lunch together and we’ll talk through each part of a standard will.” I wasn’t drafting many wills, but rather mostly litigating probate estates, which is a bit like family law with other people’s money (grandma’s/grandpa’s). Still, Rick knew it was important that a young lawyer be well rounded and not just narrowly skilled in the task at hand. Thirteen years later, before I took over as LCBA president, Rick again took me out to lunch to provide historical guidance and advice. This is not the kind of thing leaders do; this is the kind of things that great leaders do. 3. HUMOR CAN BE ONE OF AN ATTORNEY’S BEST TOOLS: When I accepted my job at LLM, my acceptance letter—by Rick—outlined the standard stuff, like salary, benefits, etc. But it also said at the bottom: “and all the free coffee you can drink!” I am a strong believer that hu-

mor—or at least not turning the practice of law into some lifeless, staid affair—is critical to lawyer wellbeing. Many of us have laughed a lot with Rick, who is a combination Happy Warrior and LCBA-Cheerleader-in-Chief. 4. ALWAYS BE MARKETING: There are many ways to market your services as a lawyer these days. Rick has been a master of the old-school way of doing it, which is through personal connections. Little fosters those connections better than being active in a bar association. For years, Rick has attended and presented at family law travel seminars. Why? Certainly because those seminars are fun; but definitely because it made rock-solid business sense, too. A divorce should be, after all, an estate planning trigger. 5. LCBA LEADERSHIP EXPLOITS: This whole intro could have focused only on Rick’s LCBA exploits. Rick likes baseball, so let me analogize. Small-ball in baseball is the strategy of getting guys on base and into scoring position; in a bar association, small ball might be considered chairing a committee. Committees are our lifeblood. Back when Rick chaired the Trusts & Estates committee from 2001-05, he veritably turned it into a run-scoring machine—that is: one of the LCBA’s strongest committees. But what about home runs, which are the opposite of small ball? It was Rick’s idea and advocacy to create the LCBA Board of Directors, which was implemented during his presidency. Before the Board, the LCBA had only a 6-person executive committee. The expanded board has been important for many reasons. First, it offered expanded opportunities to be a leader in the LCBA. Second, it helped us diversify points of view at the Board table. Also, it brings more hands-on-deck to do the work, such as when a building needs to be bought and renovated, which Rick also helped lead. It is fitting that the Board Room features the plaque for Rick’s firm, honoring the donation that Lesser Lutrey made. The other thing that Rick did was bring the Bar Foundation to life. I could literally go on for several more pages, but you get the idea. 6. BUY ONE, GET A BETTER ONE FREE WITH TERRY LESSER: Rick brought another invaluable asset to the LCBA: Terry, his wife! Terry has dedicated so much of her own time to the LCBA and to the Bar Foundation, where she has organized events, solicited donations, and sometimes acted as basically a shadow employee of the Association, that she deserves her own award. Rick’s great fortune in love has, in turn, been our own. 7. HAVE A VISION, AND MAKE RETIREMENT PART OF IT: Finally, as with the LCBA, and as with his law practice, Rick has always had a vision. I am happy that Rick’s

May 2022

vision includes retirement in the near future, because although the LCBA will desperately miss his more constant presence, his grandchildren deserve him more than us, and he deserves to enjoy more travel and leisure. In conclusion, I’ll restate the same bold claim that I made at the award presentation: a 110-year-old Association like the LCBA gets a leader like Rick Lesser only rarely in such a timeframe. For that, Rick, we all say: thank you! ACCEPTANCE SPEECH BY RICK LESSER Thanks to Joe Fusz and the LCBA for this major award. I guess that when they give you a lifetime achievement award they figure you have stopped achieving for your lifetime. I hope that’s not the case, but we’ll see. As a major award, I was hoping for a Leg Lamp like Darren Gavin got in the Fragile box in A Christmas Story, but I’m very honored with this plaque. My wife, Terry, prefers the plaque. Speaking of Terry, I want to also thank her for all of her participation and support for the LCBA over these years. Her help has been invaluable, especially in organizing many LCBA and Foundation events. She deserves her status as the only member of the Foundation who is not also a member of the Association. This lifetime achievement award is for her as much as for me. Lawyers, more than most professionals, benefit from the stress-relief that organizations like the Bar provide. Rick Lesser LCBA Milestones: • 2001-2005: Chair, Trusts & Estates Committee, (Grew membership from 6 to 80) • 2005-06: 2nd VP (By-laws Revision Committee 2006) • 2006-07: 1st VP • 2007-08: President (Amended By-laws to create Board of Directors; Amended By-laws to allow non-lawyer Associate Members) • 2008-09: Immediate Past President • 2009: Wrote By-laws for the Bar Foundation • 2010-2012: 1st President of Foundation (Successful 1st Fundraising Gala 2010) • 2014: Led the purchase of 300 Grand Ave. as LCBA Building • 2014-16: Committee to renovate 300 Grand • 2012-present: Served on Foundation Board of Trustees • Gridiron performances: 2006, 2008, 2010, 2014, 2016, 2020, 2022 Rick Lesser Career Milestones: • 1980: Graduated University of Michigan School of Law • 1987-1992: Holmstrom & Kennedy, PC • 1992-1996: Cummins, Mardoian & Lesser • 1997-2003: Bollman & Lesser • 2003-2009: Bollman Lesser, & McGlynn • 2012-2015: Lesser, Lutrey, McGlynn & Howe • 2015-present: Lesser, Lutrey, Pasquesi & Howe

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In modern America, millions of people from all different backgrounds in the world, along with millions of companies, governmental agencies and charities collide with each other’s plans, actions and goals. This is true whether we are talking about a disputed real estate project, a divorce, a car crash, a decedent’s estate or innumerable other conflicts. While in other societies these issues may be resolved by religious leaders, local governments or by force, in America they are resolved according to the law by lawyers. Our role as the managers of conflict inevitably brings us into the conflicts. As the zealous advocates for our competing clients, it is only human that we lawyers also become impassioned. This is not new to our profession. We need the LCBA as a way to relate to each other outside of the disputes. The Bar Association is a way for us to manage that stress; to see our opposing counsel not as enemies but rather as colleagues. I remember travelling with the Family Law Committee to many different cities, in the company of lawyers who regularly represent people who hate each other, and being struck by how well we all adventured together. The Bar is not only a source of camaraderie. The Bar also supports our mission for the administration of justice, through educational seminars, moot court competitions, vetting judicial candidates and providing a physical space for us to meet. Our continuing education programs are outstanding. Even during the pandemic, our Zoom events have been well-viewed. Unfortunately, the quarantine has made our personal contacts challenging, but I am hopeful that this quarantine is ending. Soon we will be able to meet in person rather than through this very unnatural Zoom experience. When I was President of the Bar in 2008, we were officed in a dreadful old slum building across from the courthouse. After we moved out, the building was mercifully demolished. The LCBA was founded in 1912, yet was still a renter after 100 years. Thanks to the support from our members, many of whom made large donations over years, and the Ray Trust, we were able to finally buy the building at 300 Grand Avenue. We then raised the money together to build-out offices and conference rooms. That work is not yet complete, but the facility is up and operating. We now have a large, modern office with a friendly, clubhouse atmosphere. This will enable us to continue our mission through the 21st Century.

When I was a young lawyer, I was skeptical of the benefits of the Bar Association. Something about it seemed old-fashioned. I started going to committee meetings and found them to be helpful to my practice. I then started going to other practice area events, like the out-of-town Family Law Seminars, and networked with other lawyers who did not do what I do. This proved to be an effective marketing technique. Because I went to the Criminal Law Seminars, the Civil Trials and Appeals Committee, the Real Estate Law Committee, other lawyers generally knew one Probate guy; me. So when they or their family and friends, run into a Trusts & Estates Law question, they call me. In retrospect, I think that my greatest contribution to the LCBA was creating the Association’s Board of Directors. When I was President, the organization was entirely governed by just the officers, only 6 members. The organization needed a deeper bench to provide a pipeline for new leaders and to address the many initiatives that arise. I’m also very proud of my work in creating the Foundation, which has provided a whole new and philanthropic aspect to the Bar. The Foundation now not only allowed us to have a permanent home, but to also to support the administration of justice through programs that benefit the young, the elderly, veterans and the disabled. I also grew to very much enjoy the company of my fellow lawyers. What started as a business opportunity has morphed into my social life. Now that I am an old lawyer, I can tell you from personal experience that my participation in the Bar has helped me to build a successful career. The Bar can do that for you, too. I particularly want to encourage you to attend Bar Committee meetings and seminars, especially in different fields. You can learn a lot and meet many other lawyers. I do want to invite you all to join me in person this Friday evening [Feb. 25], 4:30 to 7:00, for an open house party at my office. In the past, when a lifetime achievement award was given, it was at a dinner in a nice venue. That is not possible at this moment, so my law firm has been kind enough to host a party in our office. We’ve invited all of my fellow Zoom honorees and I hope you can join us. My thanks again to the Bar for this kind recognition. Rick Lesser is the 39-year husband of Terry Lesser, father of Emelia, Bryan, Veronica, and Dorena, and grandfather of Griffin (6), Cohen (3), and Maverick (2).

Now that I am an old lawyer, I can tell you from personal experience that my participation in the Bar has helped me to build a successful career. The Bar can do that for you, too.

May 2022

Passcode Reveal BY STEPHEN J. RICE

magine you are a criminal, but let’s keep it simple and light: you toilet-papered someone’s house with a group of friends. In the process, you backed over the homeowner’s prize fishmouth mailbox.

While in flagrante delicto, you took a video of your crime with your phone because—well, that’s clearly what people do these days.1 As you filmed, your friends kept coming up to the phone to say stupid things and pose. The police are hot on your and your accomplices’ tracks because the homeowner had a Ring doorbell to help monitor his beloved fishmouth mailbox. You reStephen J. Rice is an mained far from the doorbell video and Assistant are partially obscured by a shrub. Only, State’s the doorbell video captured a nice Attorney in portrait of your minivan’s license plate. the Civil DiIt also revealed that the phone in your vision of the Lake County hand had a red case. And it showed you State’s getting into the car’s driver seat as you Attorney’s and your compatriots flee after decking Office, the boughs with your jolly. where he ap1

See, e.g., Ian Bell, We Recreated the Capitol Riot Through Cellphone Videos and It’s Terrifying, Vice News (April 14, 2021) available at https://www.vice. com/en/article/pkbe4b/the-capitol-riot-through-cell-phone-videos-terrifying.

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Fast-forward to the next day. The police have reviewed the Ring doorbell video; they have identified you as the minivan owner and, with that information, can piece your identity together from other interactions with you. Only, the grainy doorbell video obscures the identity of your compatriots, which the police can see that the cellphone video would reveal. They get a search warrant for the phone, and they come to your house, where you dutifully hand it over. Only, your cellphone, with its abilities many million times that of the computer that landed man on the moon, is no more help to the police than an astronaut’s Omega watch if the police do not have the phone’s passcode. The police ask you for it, plies Fourth and Fifth Amendment doctrines only in the service of civil but you’re not squawking. rights cases that mostly arise in Can you—a criminal suspect—be federal court. He was the 2019-2020 compelled to disclose the passcode to President of the Lake County Bar the police? Or are you able to assert Association. your Fifth Amendment right—“No

person . . . shall be compelled in any criminal case to be a witness against himself”—to maintain the passcode’s secrecy and therefore not incriminate yourself? PEOPLE V. SNEED That question lies at the intersection between the Fourth and Fifth Amendments and has been addressed by two Illinois Appellate Districts, with divergent results. The most recent case is the Fourth District’s People v. Sneed, 2021 IL App (4th) 210180, which was released Nov. 18, 2021. The defendant in Sneed was the husband of a Dairy Queen employee.2 A bookkeeper for Dairy Queen discovered that the husband, although not employed by the company, had received two paychecks. Those checks had been deposited to a bank using a mobile deposit, meaning via the use of a cellphone.3 Meanwhile the wife (the Dairy Queen employee) had texted the bookkeeper incriminating but somewhat vague messages about her husband’s involvement. Based on the text messages and the bookkeeper’s other evidence, a detective secured a warrant to search both the husband and wife’s phones, and the detective obtained the phones.4 Possession of the phones was less than half the battle, however, because the husband refused to reveal his device’s passcode, rendering its contents inaccessible, because encrypted. And while tools exist to crack some encrypted devices, the detective had no access to those tools.5 So the State filed a “Motion to Compel Production of Cellular Phone Passcode,” but the trial court denied it. In doing so, the court cited an Appellate Court case from Illinois’s Third District, which held that the act of producing a passcode is testimonial and thus protected under an individual’s Fifth Amendment rights.6

cites.7 Kerr is a leading scholar on criminal procedure and its intersection with technology, and his analysis may light the way for courts to resolve the unsettled issue of “compelled decryption” (to use Kerr’s phrase).8 Also, he has thought a lot about this issue, having most recently written a historical analysis of how similar Fifth Amendment issues arose in the 1807 trial of Aaron Burr. (Burr and his contemporaries commonly wrote letters in ciphertext, thus encrypting messages roughly similar to how a cellphone passcode does today).9 Kerr summarizes two interrelated doctrines implicated in the fact patterns above: (1) the “acts of production” doctrine, and (2) the “foregone conclusion” doctrine.10 The acts-of-production doctrine stems from the 1976 Supreme Court case, Fisher v. U.S.11 In Fisher, the government subpoenaed tax records. In response, multiple defendants claimed that producing those records would be self-incriminating. How? The defendants argued that the mere act of producing such records would implicitly convey the following information: (a) that the documents exist (because you can’t hand over what doesn’t exist); (b) that the documents were in the defendant’s possession (because you can’t hand over what you don’t have); and (c) that the documents produced were the documents sought (basically, per Kerr, the implicit statement that “I think these are the documents you seek.”).12 This acts-of-production reasoning, when applied in the Fifth Amendment context, might thus lock away much probative evidence, if there were no key to the lock. The foregone-conclusion doctrine is that key. In Kerr’s summary, this doctrine, which the Supreme Court created in Fisher, “teaches that when the testimonial aspect of a compelled act ‘adds little or nothing to the sum total of the Government’s information,’ any implied testimony is a ‘foregone conclusion’ and compelling it does not violate

Can you—a criminal suspect—be compelled to disclose the passcode to the police? Or are you able to assert your Fifth Amendment right?

FIFTH AMENDMENT DOCTRINES Before turning to how the Fourth District analyzed this fact pattern to reverse the trial court, it is helpful to briefly depart from the opinion and into a law review article written by Orin Kerr, which the Fourth District 2 3 4 5 6

People v. Sneed, 2021 IL App (4th) 210180, ¶¶ 8-9. Id. Id. The State noted that the Illinois State Police had assisted the State in the past with its tools, but would only do so for narcotics investigations. Id. at ¶ 15. Id. at ¶ 18 (citing People v. Spicer, 2019 IL App (3d) 170814). More on Spicer, below.

7 8

9 10 11 12

Orin S. Kerr, Compelled Decryption and the Privilege Against Self-Incrimination, 97 Tex. L. Rev. 767 (2019). Kerr’s profile notes that he “has authored more than seventy law review articles, over half of which have been cited in judicial opinions (including eight different articles that have been cited in U.S. Supreme Court opinions). He is regularly listed as among the most cited and most influential law professors in the United States.” https://www.law.berkeley.edu/our-faculty/faculty-profiles/orin-kerr/ (last accessed Jan. 17, 2022). Orin S. Kerr, Decryption Originalism: The Lessons of Burr, 134 Harv. L. Rev. 905 (2021). Kerr, Compelled Decryption, at 771-777. Fisher v. U.S., 425 U.S. 391, 395 (1976). Kerr, Compelled Decryption, at 772-73.

May 2022

the Fifth Amendment.”13 Kerr writes that courts applying the doctrine look at “what the government knows before the act is compelled and ask whether the testimony implied by a compelled act is ‘in issue’ and would add to the government’s case” (emphasis added).14 In Fisher, the Supreme Court held that the defendant’s tax records were not protected by the Fifth Amendment.15 The Court reasoned that the existence and location of the tax records sought were not at issue—i.e., the government already independently knew these things (perhaps from the tax filings that had been made, although it is not clear from the opinion).16 Nor was their existence incriminating, because seeking tax assistance from an accountant is legal conduct. Additionally, the Court held that the act of producing the documents would not even suffice to authenticate the documents:17 because the records sought were the accountant’s records, the defendant’s (client’s) testimony about the documents would not lay a proper foundation for them in court, and thus producing them would similarly not imply—in an evidentiary sense, where a proper foundation for the documents would be necessary—that “I think these are the documents you seek.” In total, the substance of the “implied testimony” that the government would obtain through the act of the documents being produced was of no real value. Accordingly, the Court held that producing the documents did not violate the Fifth Amendment. FROM DOCTRINES BACK TO CASES Kerr’s article is worthy of further exposition because he carefully outlines the questions that Fisher leaves open, including what burden of proof is required to establish a “foregone conclusion.”18 But in the interest of keeping this article brief, let us return to the Fourth District’s Sneed case and see how the court there applied the doctrines above. The court’s opinion initially describes the testimonial / nontestimonial principles of the Fifth Amendment and how a person’s actions relate to them— basically, the court first lays the foundation for the acts-of-production doctrine.19 The court then turns to the foregone conclusion doctrine and notes that the parties argued variously that the court should either (1) focus on the compelled communication itself (i.e., the entry of the passcode) or (2) focus on the information to be revealed by the entry of the passcode.20 Citing Kerr, the court next 13 14 15 16 17 18

19 20

Id. at 773 (quoting Fisher, 425 U.S. at 411). Id. Id. at 773-74. Fisher, 425 U.S. at 411-13. Id. at 412. Kerr, Compelled Decryption, at 774-76, writing that the subsequent cases present a murky view of how much certainty is required, but noting that “the-most-often standard” is that the state must establish knowledge of the testimonial aspects of production with “reasonable particularity.” Sneed, 2021 IL App (4th), at ¶¶ 35-63. Id. at ¶ 64. Here it is worth noting that the State did not seek the passcode itself, but rather just that the defendant enter the passcode (without revealing it to the State). In many circum-

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writes: “One scholar has helpfully described these competing focuses as (1) the act that opens the door and (2) the treasure that lies beyond the door.”21 The Fourth District picked the approach Kerr advocates in his article—focusing on the passcode, not the treasure—while noting court opinions nationwide that have diverged in their approach to the issue. This is the case in Illinois, too, because in a case predating Sneed, the Third Appellate District focused not on the passcode but on the “treasure.” (People v. Spicer, 2019 IL App (3d) 170814.) The Fourth District both distinguished its case from Spicer on the facts, but also rejected the Spicer court’s legal approach. The opinion thus nicely creates a roadmap for the diverging routes other Illinois Appellate Districts might follow. It also foreshadows the ultimate decision that a Supreme Court—state or federal—will likely make. A BRIEF COMPARISON OF THE THIRD AND FOURTH DISTRICT APPROACHES Recall that in Sneed, the police knew that the Dairy Queen checks had been deposited via a deposit using a cell phone. To make such a deposit, a person snaps a picture of the front and back of a check, and thus it was possible that the check images would appear on the suspect husband’s phone, which the detective had. Only: the passcode! To illustrate the “door-opening act” from “the treasure,” it is helpful to briefly contrast these Sneed facts with those of the Spicer Third District case.22 There, a traffic stop led to a dog sniff and the discovery of cocaine in the passenger compartment.23 The police thereafter sought a search warrant for the defendant’s cell phone, which they possessed, seeking information that related to drug trafficking.24 A judge issued a search warrant for the information, but the police still could not access the phone because of the passcode. The trial court rejected the State’s motion to compel the defendant to unlock the phone with his passcode.25 Note first that the trial court in Spicer has already completed the Fourth Amendment analysis, determining that there was probable cause to search the phone. If the police had the passcode—or if there had been no passcode— then no Fifth Amendment issue would have arisen. In addressing the Fifth Amendment, the Third District addressed whether the foregone-conclusion doctrine applied, writing: “The State does not know what information might be on Spicer’s phone but surmises that cell phones are often used in unlawful drug distribution and such information would be available on Spicer’s phone. The State has not provided a particularized description of 21 22 23 24 25

stances, the passcode can be disabled after it is entered. Id. at ¶ 69 (citing Kerr, Compelled Decryption, at 777). Sneed, 2021 IL App (4th) 210180, at ¶ 72 (discussing Spicer, 2019 IL App (3d) 170814). Spicer, 2019 IL App (3d) 170814, at ¶¶ 3-5. Id. at ¶ 4-6. Id. at ¶ 7.

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that information or even evidence that any useful information exists on the phone.”26 Pause for a moment and re-read that quote with your Fourth Amendment glasses on, for the passage may appear quite ordinary in that context. The court then wrote that although the passcode was what was needed, the Fifth Amendment “foregone conclusion” analysis should properly “be placed on the information the State is ultimately seeking, which is not the passcode but everything on [the Defendant’s] phone.”27 Describing information that the State seeks is a key facet of any Fourth Amendment analysis, with its “particularly” requirement. The question is whether that same analysis has a role in the Fifth Amendment context. Before turning to the diverging legal analyses used by the Third and Fourth Districts, let us first ponder the cases’ distinguishing fact patterns. In the Fourth District’s Sneed, the police sought very specific information: images of two checks. As cell phone searches go, they hardly get more precisely targeted than that. Not so in the Third District’s Spicer, where the police cast a much wider net: “call logs, text messages, multimedia messages, instant messaging communications, voicemail, e-mail, all messaging applications, phonebook contacts, videos, photographs, Internet browsing and mapping history and GPS data.”28 Basically the whole kit and caboodle. Does it make a Fifth Amendment difference that the investigators in Sneed knew exactly what they were looking for (the checks), versus the investigators in Spicer seeking a variety of information that may or may not have existed? At first blush one might think: “yes, because you cannot have a foregone conclusion if you cannot specify what you are looking for.” On this line of thinking, the “sum total of the Government’s information” in Sneed, where the investigation sought something known to exist and very likely tied to the cell phone in question,29 contrasts markedly from Spicer, where the Government’s information was generalized (“drug users commonly use their cell phones . . . to further their unlawful activity”) and sought a wide-array of unknown information, such as location data, text messages, phone logs, etc.30 But those factual distinctions are not material to what Kerr advocates in his article, and the Fourth District ultimately follows his approach. Discussing a New Jersey Supreme Court case,31 the Fourth District ultimately reasons that the focus of the Fifth Amendment analysis and its foregone conclusion doctrine should be on the defendant’s production of the passcode, not on the contents of 26 27 28

29 30 31

Id. at ¶ 22. Id. at ¶ 24. Id. at ¶ 22. The Appellate Court even categorized the breadth of the search as a “fishing expedition,” which suggests that it might have invalidated the search on Fourth Amendment grounds, which it did not address. The court’s analysis in Spicer is limited to the Fifth Amendment—or at least, ostensibly so. Id. Sneed, 2021 IL App (4th) 210180, at ¶ 9. Spicer, 2019 IL App (3d) 170814, at ¶ 6. State v. Andrews, 234 A.3d 1254 (N.J. 2021) (cert denied 141 S. Ct. 2623).

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the phone more broadly.32 What this means in practice is that the focus of the “foregone conclusion” should be that the phone is the defendant’s. Stated more specifically, the State should show that it: (1) knows the passcode exists; (2) knows the passcode is within the defendant’s possession or control; and (3) can authenticate the passcode.33 Elements one and three are elementary: if investigators have a phone and cannot access it because it is requesting a passcode, then they know a passcode exists; and to authenticate a passcode, you try it: if it works, it self-authenticates. All that is left is the State knowing that the phone belongs to the defendant and, per Kerr, “evidence that the person regularly uses a particular device should generally be sufficient to show knowledge of the password and trigger the foregone conclusion doctrine.”34 Note how this analysis is far from a re-hash of the Fourth Amendment’s particularity requirement as it pertains to the ultimate “treasure.” Rather, the Fifth Amendment focus is, on this methodology, much more limited. (Kerr’s methodology has its academic critics as well.35) In Sneed then, the court explained how the State connected the phone to the defendant: the detective retrieved both the defendant’s phone and his wife’s phone; the defendant provided his phone number on a jail form, and that number would cause the phone to ring. These facts, the court wrote, establish “with reasonable particularity” that the defendant had possession of the phone and, accordingly, possession of the passcode required to access it.36 Note how this approach—again, what Kerr describes as a twostep: (1) the act that opens the door and (2) the treasure that lies beyond the door—creates a demarcation between the concerns of the Fourth and Fifth Amendments. Where the Fifth Amendment addresses the act and its testimonial significance, the Fourth Amendment remains the bulwark against general searches.37 In reading Sneed, a reader can feel rather tossed around by the various constitutional principles put in play by the underlying fact pattern, as well as the other fact patterns that the case discusses. This unsettled feeling flows naturally from the unsettled nature of the Fifth Amendment and its rather obscure “foregone conclusion” doctrine, which the Supreme Court articulated long before cellphones and passcodes existed. CONCLUSION Let us now return to my toilet-papering fact pattern at the outset of this article. Recall that the police con32 33 34 35 36 37

Sneed, 2021 IL App (4th) 210180, at ¶ 93. Id. at ¶ 98. Kerr, Compelled Decryption, at 783. Laurent Sacharoff, What Am I Really Saying When I Open My Smartphone? A Response to Orin S. Kerr, 97 Tex. L. Rev. Online 63 (2019). Sneed, 2021 IL App (4th) 210180, at ¶ 100. Id. at ¶ 96 (citing People v. McCavitt, 2021 IL 125550, which addressed a person’s reasonable expectation of privacy in data on a device subject to a search).

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front you after identifying you from the license plate captured on the Ring doorbell video. The police have verified otherwise that you carry a phone with the telltale red case. Perhaps they obtained your phone number from a friend—if calling the number rings the phone, they have additional indicia tying you to the device. After you hand the police the locked phone, they can see that a passcode exists. The passcode’s entry will authenticate it. Under Sneed, a motion seeking the passcode would succeed. Such a fact pattern might have succeeded under Spicer, too. As in Sneed, my hypothetical fact pattern has the police targeting something that they can articulate to a judge with precision: a video created on “x” date with the phone. Such a straightforward fact pattern eliminates any Fourth Amendment “noise” that might interfere with a judge’s perception of whether an authorizing order should issue. Basically, eliminating the Fourth Amendment noise makes the foregone conclusion analysis easier to comprehend. And because the Fourth and Fifth Amendment aspects of these fact patterns have generated diverging court opinions— and also because the doctrines involved are obscure and rather opaque—the clearer the fact pattern, the more likely the government is to get its desired result.

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(Remember that we don’t perfectly execute the law, but rather “practice” it!) On March 30, 2022, the Illinois Supreme Court accepted Sneed for further review. The Kerr approach and the Sneed opinion will ultimately be validated or rejected in the U.S. Supreme Court, which denied cert on a New Jersey case38 that presented the issue in May 2021, presumably wanting the issue to be addressed by additional state and federal courts. Even though cell phone encryption has been around for years, the issue has been percolating somewhat slowly. The reason for this is illustrated by the Sneed case itself: although ultimately well-reasoned, the case reads a bit like a stream-of-consciousness excursion through the principles of the Fifth Amendment. This is not a criticism of the court’s writing. Simply put, the principles at issue exist at a level of abstraction that resonates more in philosophical discourse than simple math. This complexity is all the more reason to first read Kerr’s excellent article because, whether you ultimately agree with his conclusions or not, the article will help you untangle the Fifth Amendment principles at play. That understanding is the ultimate treasure practitioners need from the Sneed opinion.

GOLF OUTING THURSDAY, JUNE 23, 2022 White Deer Run Golf Club

250 W. Gregg’s Parkway, Vernon Hills

2022 LCBA GOLF OUTING PLAY

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Players of all levels are encouraged to participate in the 2022 Lake County Bar Association Golf Outing.

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PLAYERS $185/player or $700/foursome • Greens fee, cart and range balls • Lunch, two beverage tickets and post play reception, all outdoors • Commemorative golf item • 1 door prize ticket per player • Raffle Prizes and Outing contests

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FEEL GOOD FOUR PACK

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THE FINE PRINT No reservations will be accepted unless payment is received (or guaranteed by a credit card) by Friday, June 17, 2022. No refunds will be issued after 12:00 Noon, Friday, June 17, 2022. Any member who reserves a foursome will be responsible for the payment and attendance of the entire group (the reserving LCBA member’s credit card will be charged for the entire group fee regardless of whether the entire foursome is present to play on Thursday, June 23, 2022 (unless prior arrangements have been made before the cancellation date).

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Longest Putt-Men/Longest Putt-Women / Closest to the Pin-Men/Closest to Pin-Women) • Sponsor a Hole Competition for either the men’s or women’s contest (6 available) • Name/Logo displayed on sign at competition hole Food Sponsor: $150 (unlimited) • Name/Logo displayed with other food sponsors on sign prominently displayed where food is served.

All sponsors acknowledged on rules sheet, during post-round reception and in the September issue of The Docket.

• Registration & Practice 11:00 a.m. • Lunch 11:30 a.m. - 12:30 p.m. • Shot Gun Start 12:30 p.m. • Post Game Reception Approx. 5:00 p.m.

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Unfulfilled Promises of Integration and Social Mobility: A case study of the United States Military

BY JOSEPH STEINFELS

eterans Day has passed. For a minute, most of the nation paused and voiced awkward gratitude to military veterans. And now, on Friday November 12th, we’re back to normal. But that brief moment gave me pause. It made me think about the role that the military plays in society. The role it used to play. And the role it should play. Veterans Day has passed. For a minute, most of the Over the next several years, I cooked thousands of nation paused and voiced awkward gratitude to military meals and ran thousands of miles. But I was also selected veterans. And now, on Friday November 12th, we’re back to complete an undergraduate degree program, commisto normal. sioned as an artillery officer, and sent off to war. Through But that brief moment gave me pause. It made me the next 17 years as a commissioned officer, I climbed the think about the role that the military plays in society. ranks, and served in myriad billets ranging from kinetic The role it used to play. And the role it should play. combat operations to Capitol Hill staff to being a profesPerspectives are shaped by our sor at a Top 10 university. During my experiences. Full disclosure, I am a last few years in the military, I—as a Joseph Steinfels veteran. In 1994, I enlisted at age 17 40-year-old father of four—enrolled enlisted in the in order to change the direction of in night law school and graduatMarines at age 17 and served my life. At the time, I was running ed, summa cum laude and on Law multiple combat with a group that was—to put sucReview. I am now a Lake County tours in Iraq and cinctly—not making success-oriented Assistant Public Defender trying to Afghanistan. He decisions. In December of 1994, I help other young adults adjust their has served as a had sunk so low that I was living in life trajectory before it is too late. Legislative Assistant on Capitol Hill, an associate the back seat of a broken-down Ford Now as a civilian—and perhaps professor of Leadership and Ethical Mustang, stealing showers from a local more poignantly as a Lake County Decision-making at a Top Ten Unicommunity center. Two weeks later, Public Defender—I am realizing how versity, and a Lecturer on civil-milI left for Marine Corps boot camp as little our society truly understands itary relations. He now serves as a an enlisted cook—effectively running the military. And while gratuitous Public Defender in Lake County, IL. away from my life. “thank-you’s” fly thick (especially

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around November 11), so few people really recognize and appreciate the critical role the military plays in maintaining a cohesive civil society. VIRTUE ONE: E PLURIBUS UNUM. The U. S. military recruits from all areas—geographic as well as level of societal stratification—within America.1 As new members converge into a basic training unit (commonly referred to as “boot camp”), they hail from such disparate areas as East LA (CA), Lake Forest (IL), Senoia (GA), Brooklyn (NY), Cheyenne (WY), and San Juan (PR). Young adults are thrust together in a sociological experience intended to strip them of their individualism (including any preconceived biases or assumptions) and force them to develop bonds of trust, teamwork, and camaraderie. They are forced to learn to work together to overcome challenges, the first of which are artificially constructed by a training regimen and then—during deployments—are graduated to real world complex scenarios. These young men and women learn to work together, party together, live together, win together, and sometimes even die together. The integration they encounter is real, not an academic theory postulated on by civil rights crusaders or political leaders. The integration they encounter is far more genuine than the all-too-common cosmetic integration found in board rooms or in freshman initiation seminars.2 As a young 17-year-old, I encountered so many fellow Americans who had followed a different path to the same place. My four-member fire team included an immigrant yearning for citizenship whose parents smuggled him over the border years earlier, the younger brother of a murdered Gangster Disciple from East St Louis, and a University of Oklahoma dropout who dreamed of returning home to his cattle ranch. As we lay awake under the stars, too

exhausted to sleep, we regaled each other with memories of home—postponed dreams, waiting lovers, and (mostly) desired food. We got to know each other far more intimately than any board room or freshman class ever will. One of the unique requirements of the military is the required transfer (or move) every two to three years. Just as one learns how to be proficient in their job, the time comes to pass it on to someone else. And the time comes to find new coworkers, a new team, and a new… family. In the almost two years I conducting combat or humanitarian operations far from home, my only friends were those assigned by chance. And I can testify that everyone’s blood is red. It is important to be honest. Successful performance in the military requires that one discover something larger than themself and assign loyalty to a greater cause. Some are incapable of doing so. They attempt the military and fail, perhaps even sloughing through to the end of their term. They are usually the ones unable to overcome their focus on self in order to completely dedicate themselves to their team. They do exist, much the same as those self-centered corporate leaders more focused upon “looking good” than developing cohesive and effective teams. But anyone who has substantively interacted with veterans can testify to the pride of belonging they share with a dedicated team of brothers and sisters, regardless of social strata, race, gender, or background. In today’s ever more divided America, so many (even those self-labeled as tolerant) subscribe to their own version of “truth” and rarely demonstrate empathetic assignment of rationalism to an opposing viewpoint. We have rarely been in greater need of real integration. The continued emphasis and self-sorting based upon our differences—ideological, racial, political—is allowing the contempt we hold for one another to grow faster than the tolerance and empathy we strive to demonstrate. We need to lie beneath the stars and, while exploring the beautiful differences between us, find the commonalities we share.

In 1994, I enlisted at age 17 in order to change the direction of my life. At the time, I was running with a group that was— to put succinctly—not making success-oriented decisions.

1 2

Demographics of the U.S. Military. Council on Foreign RelaRetrieved on November 19, 2021 from https://www.cfr. org/backgrounder/demographics-us-military As a prior Associate Professor and Deputy Department Chair at a nationally-recognized private university, I was routinely exposed to the Dean’s enthusiasm and determination to ensure that each August’s first-year orientation seminars achieved the idealized demographic representation as would appear by a cursory visual skimming of the auditorium seats. However, upon getting to know my students, it would become evident that, while perhaps of different hues, diversity was largely lacking as almost all of my students enjoyed an upper middle-class to affluent pedigree. tions.

VIRTUE TWO: INTANGIBLE STRENGTHS. The Clausewitzian definition of war is the imposition of will upon an opponent through the exertion of force.3 3

In 1832, Prussian military theorist Carl von Clausewitz published his seminal work, On War, which soon assumed a prominent position within the realm of national security policy and military

May 2022 25

To win requires that one side be stronger than the other. Physically, mentally, and even systemically stronger than the opponent. To that end, military life is intended to be tough. Getting tough is manifested in a variety of ways: being thrust into new teams with little warning, confronting seemingly insurmountable challenges, or pushing one’s own limits—mental and physical—beyond what was perceived to be possible. From the beginning of entry level training, an individual is taught to confront, persevere, and overcome challenges, whether physical (running, push-ups, or endurance/obstacle courses), mental (sleep deprivation, complex problem analysis, or rapid planning & execution timelines), or even systemic (logistics, training, or resource management). Expectations and standards prevail; excuses are not allowed. Mission accomplishment is the expectation. Courage allows someone to perform even when confronted with fear. Discipline is the self-control to do what needs to be done through intrinsic motivation. Selflessness is the ability to put the interests of the team ahead of oneself.4 Decisiveness is the ability to identify decision points, weigh the costs associated with delay, and commit oneself and/or one’s team to a course of action. Leadership is the ability to effectively facilitate a team to accomplish a goal. Cultural empathy is the ability to identify and associate with the thoughts, feelings, and behaviors of culturally diverse individuals. It is inevitable that a successful member of the military will develop these—as well as many other—intangible strengths for application long after military service ends. VIRTUE THREE: A SECOND CHANCE. It was a heroin overdose, they said. A friend of mine, partying hard, had passed out and other friends had left his eventually lifeless body for his parents—themselves recent immigrants escaping post-Cold War Poland—to find on their doorstep as they left for Sunday morning Mass. That moment—in November 1994—was my revelation. For the first time, I saw clearly where my life was heading. Critically, I had not “screwed up enough” to completely destroy my chances at escape. So I ran away… into the military. Traditionally—even before our country was founded—the military has promised a way out. Whether an impoverished peasant seeking an alternative path in life or a younger son of entrenched nobility seeking title, glory, and riches in his own right, military service has

philosophy. It is still taught at all United States military service academies and general staff schools. According to Maslow’s hierarchy of needs, the base levels are physiological and safety/security needs. The higher tiers tend to be more of belonging, esteem, and self-actualization. The military effectively inverts the pyramid. For instance, the very act of throwing oneself on a grenade and absorbing the entire impact—the type of selfless act arguably encouraged by the military through award and recognition—suggests the subjugation of the base needs.

26 The Docket

long offered an alternate path to success. The military promised that, for those daring enough to join, a reward waited. Today’s all-volunteer military force is extremely selective. For all the problems associated with the draft, it was evenly applied—at least in intent, if not in execution.5 Since the transition to an all-volunteer force, the military has become increasingly selective. Today, over 71% of the 34 million Americans aged 17-24 are ineligible to join the military (even as cooks or warehouse workers) based upon health problems, lack of education, or criminal history.6 Since the end of the draft era, standards have climbed year after year. High school graduation is now required for entry and the presence of any existing medical condition (asthma, psychological, orthopedic, and even allergic) requires extensive examination and submission of waivers. Any criminal history beyond petty traffic tickets is disqualifying; while waivers can be submitted, entry is subject to the needs of the military.7 Since 9/11, criminal records have become far more detailed and interconnected across various jurisdictions. Whether that is ameliorative or pervasive is relative. No doubt, we can better track violent offenders and national security risks. However, an unintended effect is that a youthful indiscretion (or admittedly many indiscretions) may follow an individual for life, serving as manifestation of the “scarlet letter.”8 With the increased documentation of criminal records, the military is now far more capable of ensuring that so-called “undesirables” don’t slip through and join their ranks. Even the most minor offense, one’s continuing pretrial status, or being on court supervision or probation can preclude enlistment. Moreover, once the case has terminated—even successfully—the stigma of conviction persists and a waiver still must often be submitted and approved prior to entry. Subsequently, an entire subset of the population aged 17-30 are effectively prohibited 5

David Card and Thomas Lemieux. Going to College to Avoid the Draft: The Unintended Legacy of the Vietnam War. The American Economic Review, Vol 91, No. 2. Retrieved on November 19, 2021 from https://davidcard.berkeley.edu/papers/ vietnam-war-college.pdf. See also D. L. Kriner and F. X. Shen. Analysis of Conscription, inequality, and partisan support for war. Retrieved on November 19, 2021 from https://peacesciencedigest.org/military-draft-inequality-and-war-support/ Thomas Spoehr and Bridget Handy. The Looming National Security Crisis: Young Americans Unable to Serve in the Military. The Heritage Foundation. Retrieved on November 19, 2021 from https://www.heritage.org/defense/report/the-looming-national-security-crisis-young-americans-unable-serve-the-military. See also Miriam Jordan. Recruits’ Ineligibility Tests the Military. Wall Street Journal. June 27, 2014. Retrieved on November 19, 2021 from https://www.wsj.com/articles/recruits-ineligibility-tests-the-military-1403909945 Official website of the National Conference of State Legislatures. Retrieved on November 19, 2021 from https://www.ncsl. org/research/labor-and-employment/barriers-to-work-individuals-with-criminal-records.aspx. See also MilitaryBenefits.info. Retrieved on November 19, 2021 from https://militarybenefits. info/joining-military-criminal-record/ Nathaniel Hawthorne. 1850. The Scarlet Letter.

entry into the military. Even worse, these “undesirables” are the ones most in need of a fresh start away from their current environment. Moreover, these “undesirables” are likely the group most in need of the strong mentorship, character development, and discipline promised within military pedigree. Yet they remain uninvited. This is especially detrimental to those from lower income brackets. Once accepted and through entry-level training, the military provides a stable salary and excellent benefits. While it demands much from the individual sailor, Marine, airman, or soldier, it provides significant family support, including world class health care and educational opportunities.9 A soldier can proudly engage and progress in her career, while effectively providing for her family. Conversely, when an individual is disallowed entry, they are effectively cut off from this avenue of social mobility that would otherwise allow the individual to join the middle class. An interesting correlation is that today’s military is increasingly incestuous. Marriages are common between members of the military. Military sons and daughters are far more likely to consider enlistment than their civilian counterparts. Compounding that trend is the diminished need for overall manpower in today’s military. Human history is rife with schisms developing between military and civilian populations. The Mamluks, the Janissaries, and Praetorians—all were subject military classes who, upon becoming increasingly distanced and disgusted by the opulence and incompetence of their civilian rulers, overthrew their masters and established their own dynasties. In America today, as an ever-smaller segment of society serves civilian leadership, are we in effect creating a military class? While I don’t foresee a national security risk over the short-term, no successful coup has ever been predicted. CONCLUSION. After 25 years in uniform, I am accustomed to the paradoxical relationship between the military and civilian worlds in contemporary America. A gratuitous “thank you” is often voiced by the same people who view the military with contempt. The Applebee’s manager provides veterans free lunch entrées but discourages his own son from considering enlistment. Part of it is fear of harm— physical or psychological. Part of it may also stem from distrust or perceived moral disagreement. To the uninformed, the military is a singular monolithic entity and therefore any sin committed by a part can be blamed on the whole. It is true that the military has suffered black eyes; we cannot reverse My Lai or Haditha, munitions manufacturers can be (like pharmaceutical and energy 9

My last civilian jobs prior to joining the military at age 17 were McDonalds cashier and as a server at Denny’s. Twenty-four years later, I have attained a BA (History), an MA (International Management), a second MA (Leadership and Management), a Graduate Certificate (Legislative Appropriations), and a JD…with no student loans.

manufacturers) too focused on the bottom line, and in hindsight it is hard to justify strategic decision-making in Vietnam or Afghanistan. But the military—by its very existence—requires loyalty to a collective authority and volitional subjugation to service.10 To succeed, one must trust in leaders and each other. To succeed, one must truly commit to the cause and the challenge. To succeed, one must learn to serve others and the State. And while the reciprocal effect is that military leaders take that charge seriously (no good officer dares to eat a morsel before every single one of her Marines has a full stomach), that is a theme considered antithetical to various sectors of civil society. One of the biggest adjustments to the “civilian” world is that the veteran must learn that he or she can no longer blindly trust in his or her leadership to take care of them. The camaraderie and team ethos one enjoys as a member of a military unit is unlike any other. It is no accident that many veterans—especially as they age—reflect on their time in the military as among their fondest life experiences. If the lessons of inclusiveness and diversity that the military provides—in fact requires—could be extrapolated to civil society, I am confident we would soon eradicate much of the “us-versus-them” discord rife in the contemporary American political system. Our military must also expand recruitment in order to provide opportunities and second chances to the most hopeless and underprivileged among us. America’s military force must remain representative of our entire nation.

This is not necessarily an easy task. In November 2004, I was deployed with my unit to the so-called Triangle of Death just south of Baghdad. The second Fallujah offensive had launched less than a week after the US presidential election back home. My unit was assigned to block the “rat-lines” egress routes from Fallujah along the Euphrates River to the South. Operations were kinetic and Marines were lost. The still-heated political discussion back home coupled with the visible effect resulted in my Marines asking me hard questions about why we were there and what we were seeking to achieve. As the Iraqi national elections of January 2005 were still a far-off mirage, we had little to show for our efforts, except IED-destroyed vehicles and bodybags. I had many hard discussions with my Marines and while I perhaps felt just as confused and disappointed in our national strategic policy, it was not the time nor the place to question it. But, when a quiet moment would come, I would contemplate Thoreau’s words from Civil Disobedience: “The mass of men serve the State thus, not as men mainly, but as machines, with their bodies. They are the standing army, and the militia, jailers, constables, posse comitatus, etc. In most cases there is no free exercise whatever of the judgment or of the moral sense; but they put themselves on a level with wood and earth and stones; and wooden men can perhaps be manufactured that will serve the purpose as well. Such command no more respect than men of straw or a lump of dirt. They have the same sort of worth only as horses and dogs. Yet such as these even are commonly esteemed good citizens.” I took these words with me later when I served as an Associate Professor of Just War theory and ethical decision-making.

Board of Directors’ Meeting

The

March 15, 2022 CONSENT AGENDA • Minutes • New Members A motion was made and seconded to approve the consent agenda. The motion was unanimously approved. DISCUSSION ITEMS • Treasurer’s Report The past month has been a positive month for financials and revenue. While we are down slightly in membership, lawyer referral service and docket revenue. There have been more events and there will be more in person events this year. The Gridiron was a very positive event.

BY DANIEL HODGKINSON SECRETARY OLD BUSINESS: GRIDIRON Craig Mandell gave the board a recap of how the show went. It was a success in terms of attendance and revenue and it was also received very well by all who attended. NEW BUSINESS: Judicial Selection and Retention Committee Discussion was had concerning the committee evaluating Appellate and Supreme Court candidates. A motion was made, seconded and unanimously passed to evaluate those

FREE CLE DISCOUNTED CLE BUSINESS MEETINGS LAWYER REFERRAL SERVICE COMMITTEE MEMBERSHIP THE DOCKET & WEEKLY E-NEWS

28 The Docket

Meeting Minutes

candidates. Additionally, A motion was made, seconded and passed to allow the Judicial Selection and Retention Committee’s bylaws to be amended to allow for a change in rating if an Appellate or Supreme Court candidate does not appear in front of the committee. The change would have the finding of the committee not be a “Not Qualified” but a “Chose not to participate.” Gideon and Justice Jackson Award: A motion was made, seconded and unanimously passed to present the awards to the recipients. The recipients will be disclosed by the President of the Bar Association. Budget Process for 2022-23: There will be a meeting in march to discuss the budget and a proposed budget will be presented in April. Harvey Weinstein Case: There will be an event on April 12 with Donna Ra-

tunno who was an attorney on the Harvey Weinstein Case. Meeting Concluded 12:51 p.m. BOARD MEMBERS PRESENT Joseph Fusz President Tara Devine First Vice President Kevin Berrill Treasurer Daniel Hodgkinson Secretary Katharine S. Hatch Second Vice President Hon. Patricia Cornell Past President Craig Mandell Director Hon. Jacquelyn Melius Director Jeremy Harter Director Jeff O’Kelley Director Sarah Raisch Director Greg Weider Executive Director

2022 Civil Trial & Appeals Seminar & Golf Glen Flora Country Club Thursday, May 26, 2022 3.0 CLE Credit Hours Seminar only $130.00* Golf only $130.00* Both $250.00* 8:15 - 900 Registration & Breakfast 9:00-9:30 am Expert Testimony Hon.Elizabeth Rochford and Gretchen Neddenriep 9:30-10:00 am Non-economic Damages at Trial Patrick Salvi II 10:00-10:30 am Labor and Employment Law Issues Diana Servos 10:30–11:00 am Practice of Law in a Digital, Zoom, and Remote Age Terry Mueller 11:00-11:30 am Worker’s Compensation Liens in Third-Party Cases Jason Marks 11:30 a.m.-12:00 pm Lake County Civil Judge’s Roundtable Judge Hoffman, Judge Salvi, Judge Brodsky, and Judge Melius 12:00 p.m.- Lunch & Golf Outing Registration 12:45 p.m. Tee Time

A New Normal

he COVID 19 pandemic has upended many of our critical structures. Our courts, health systems, careers, economic life, and families have all been impacted in a totality we may not yet fully grasp. As we hopefully move beyond this crisis to a new normal, I cannot help but to wonder what tomorrow will bring. The future promises to be more tech-driven and with that comes a new set of challenges. Beyond the issues of privacy and accountability are the questions of personal connection and community. My tenure with the Lake County Bar Association has been filled with Zoom meetings and conference calls. While we have been fortunate to have several in-person events, they have come with the challenges of being mindful of a diverse group of people’s personal needs and comfort levels. Tensions and frustrations have occasionally been elevated, but I have been impressed by our board, staff, and volunteers as they have

30 The Docket

navigated the past two years to meet the needs of the LCBA membership. Brian Solis may have said it best when he stated, “Community is about doing something together that makes belonging matter. We are rapidly approaching a new membership year. Soon you will see renewal invoices in your mailboxes. It is my most sincere hope that you will continue your membership with the LCBA and take the opportunity to be involved at a level that best fits your personal and professional interests. A new membership year brings change. In June we will welcome a new LCBA President. Tara Devine will take the oath of office on the evening June 3, 2022. We will celebrate this event with an Installation Social at the Ivanhoe Club. I hope you will consider attending. The new year will also bring a transition of leadership to some of our committees. I am grateful to those who have agreed to take on this responsibility. I look forward to what they will be able to accomplish.

In the

Director’s Chair

The transition of leadership also provides the opportunity to say thank you. I would like to extend my personal gratitude to everyone who served as a committee chair. Balancing work and family life are never easy. Taking on a volunteer leadership role is time consuming and the commitment can be daunting. The LCBA is stronger because they took the time to lead. I appreciate all their efforts. I would like to thank all who have served on the foundation’s board of trustees. I recognize their efforts and admire their work to support the legal community. Thank you to the LCBA board of directors. I hold their commitment to our organization in high regard and admire their dedication. I would like to my express my sincere gratitude to out going LCBA president Joe Fusz. As Judge Patricia Cornell did before him, Joe faced the challenge of

leading the LCBA during BY GREG WEIDER EXECUTIVE DIRECTOR the most significant public health crisis of our lifetime. He embraced this challenge and provided leadership that was both decisive and collaborative. His efforts required a great deal of time, patience, and energy. I am grateful to him for his leadership, support, and direction. Membership is the foundation on which the LCBA is built. Our strength of our community is important. An organization such as the LCBA provides opportunities for professional growth, continuing education, and networking. Beyond that it creates an environment for professionals dedicated to the law a chance to connect with those who share their values and dedication to service. To paraphrase Benjamin Franklin, the good we may do separately, is small, compared with what we may do collectively. I am looking forward to a great year.

SAVE THE DATE NOW! FRIDAY, JUNE 3

2022 INSTALLATION SOCIAL

Entertainment Provided by Dueling Pianos

Formal Invites to Follow

LAWYER REFERRAL SERVICE WHY SHOULD YOU JOIN? The LCBA Lawyer Referral Service (LRS) is a valuable member benefit as well as a public service. LRS provides member attorneys with an opportunity to build business through client referrals. The service benefits the public by helping callers quickly find an attorney in the area of law in which they need help.

The LRS program is designed to assist persons who are able to pay normal attorney fees but whose ability to locate legal representation is frustrated by a lack of experience with the legal system, a lack of information about the type of services needed, or a fear of the potential costs of seeing a lawyer. Cost is only $200 annually for a Standard listing or $350 for a Premium listing. Download the application at www.lakebar.org/page/LRS or contact the LCBA office for more information.

CONTACT THE LCBA AT 847.244.3143 OR INFO@LAKEBAR.ORG

LAKECOUNTYLAWYER.INFO

Monthly

Committee Meetings

DAY

GO TO

WWW.LAKEBAR.ORG FOR THE MOST UP-TO-DATE CALENDAR INFORMATION

Bar

Bulletin Board

To place an ad or for information on advertising rates, call (847) 244-3143

MEETING

LOCATION

TIME

1st Tuesday

Diversity & Community Outreach

Virtual Until Further Notice

12:15-1:15

1st Thursday

Real Estate

VUFN

5:30-6:30

Docket Editorial Committee

VUFN

12:15-1:15

2nd Tuesday

Criminal Law

VUFN

12:15-1:15

2nd Tuesday (Odd Mo.)

Immigration

VUFN

4:30-5:30

2nd Wednesday

Family Law Advisory Group (FLAG)

VUFN

12:00-1:00

2nd Wednesday

Civil Trial and Appeals

VUFN

4:00-5:00

2nd Thursday

Young & New Lawyers

VUFN

12:15-1:15

2nd Thursday

Trusts and Estates

VUFN

12:15-1:15

3rd Monday (Odd Mo.)

Solo & Small Firms

VUFN

12:00 noon

3rd Tuesday

Local Government

VUFN

12:15-1:15

3rd Tuesday

LCBF Board of Trustees

VUFN

4:00

Family Law

VUFN

12:00-1:00

LCBA Board of Directors

VUFN

12:00 noon

VUFN

5:30-6:30

VUFN

5:15-6:15

1st Thursday (Even Mo.)

3rd Wednesday 3rd Thursday 3rd Thursday As Needed

Debtor/Creditor Rights Employment Law

• RSVP to a meeting at www.lakebar.org. • Meetings subject to change. Please check your weekly e-news, the on-line calendar at www.lakebar.org or call the LCBA Office @ (847) 244-3143. • Please feel free to bring your lunch to the LCBA office for any noon meetings. Food and beverages at restaurants are purchased on a individual basis.

ANNOUNCING OUR NEW NAME!

STILL IN THE SAME LOCATION, CONTINUING TO PRACTICE IN LITIGATION & APPEALS, RESIDENTIAL & COMMERCIAL REAL ESTATE, BUSINESS LAW, ESTATE PLANNING, & TRUST ADMINISTRATION

ROBERT W. CHURCHILL WILLIAM A. CHURCHILL JOHN W. QUINN MARK T. HAMILTON MARK VAN DONSELAAR JOHN L. QUINN LEO J. DELANEY AMBER L. DESSELLES MARY LEE BERRESHEIM

TWO SOUTH WHITNEY, GRAYSLAKE, IL 60030 • (847) 223-1500 • WWW.GRAYSLAKELAW.COM

32 The Docket

300 Grand Avenue, Suite A Waukegan, IL 60085 Tel: 847-244-3143 Fax: 847-244-8259

MEMBER RECEPTION

MEMBER RECEPTION SPONSORSHIP OPPORTUNITIES

LCBA Member Receptions will generally be held on the 4th Thursday of every month.

Your $500 sponsorship includes: • Recognition in advertising before the event and on signage at the event • Reception from 4:30 – 6:30 p.m. omplimentary beer and wine. Upgrades available for additional fee. •C

Contact info@lakebar.org to add your name to a reception.

34 The Docket