Directing Memories, from "The Little Yiddish I Know I Learned From My Grandmother, A Memoir"

Over the years I’ve directed more than 40 plays, including musicals. Some were quite successful, others less so, but all were worth seeing. I like to think that any audience member who invested the time into viewing one of my productions got out of the experience more than he or she put into it. I’ve detailed elsewhere my theory of art as a vehicle for communicating emotional experience to life experience, and how theatre in particular communicates emotion through empathy and identification. As I think back over my productions, it is the communication of emotion to the audience that stands out in my mind, but sometimes the process was more memorable than the product.

My earliest productions were as an undergraduate at Michigan State University. My very first was a one-act play by George Bernard Shaw, Augustus Does His Bit. I had an excellent student actor in the main role, and he ran with it. The female lead was less strong, but she was pressed hard to keep up. Ultimately I developed a “doting mother-spoiled child” relationship between them that worked well and served the play. The weakest thing about the production was the floor plan; I simply did not know enough about design to create one that served the production, and the actors were not experienced enough to compensate.

My first full-length production was Shelagh Delaney’s A Taste of Honey. It was a much more complex script, focusing on the relationship between a mother and daughter in sixties England. I didn’t know enough about female psychology, and I didn’t know enough about the new wave drama movement in England. It’s probably true that I didn’t understand the play entirely, and since the main job of the director is to communicate his or her understanding of the author’s intentions to the audience through the creation of an emotional subtext I couldn’t possibly have succeeded. While there was enough there for an audience to digest, in my mind at least A Taste of Honey was the least successful production I ever directed.

It never crossed my mind to stop directing after this bad experience, though; I simply changed my focus. Since I failed because I didn’t understand the play, I resolved to direct something I was absolutely certain I understood completely. I turned to an adaptation of Bram Stoker’s Dracula. I also assembled one of the best student casts that had been seen at Michigan State in many years. The main character, Professor Van Helsing, was played by a graduate student in acting. Dracula was played by the outstanding undergraduate actor who I had used the previous year in the Shaw play. The crazy, fly-eating Renfield was played by perhaps the best freshman actor from the previous year. The other roles were cast  at open and  highly competitive auditions. Because most of the cast members were involved in other productions, as was I, finding time to rehearse was awkward. We ended up rehearsing about five days a week from 11:00 p.m. to 1:30 a.m. for five weeks.

The set was also a quantum leap forward for me. I was able to design a dynamic floor plan with multiple levels, which no one had ever done before in the Studio Theatre where we performed. The lighting and special effects (a bat flying in through the window, and Dracula appearing unseen from behind a sofa) worked exceedingly well. We actually got some screams from the audience, and standing ovations, the first student production in recent memory to do so. Faculty and students alike acknowledged Dracula as the best student production, and perhaps even the best production overall, of the year.

Next I tackled an adaptation of The Pied Piper of Hamlin, which I helped to write. I was assisting in the teaching of the children’s theatre class which I had taken the year before, and part of my job was to direct this production. The cast was composed of members of the class; they also served as designers and crew. We used the Arena Theatre, with an audience bused in from local elementary schools. The main innovation of the production was the addition of an environmental theme to the story; the rats came in part because the city was dirty, and the Pied Piper taught the people to clean things up. We spent an interesting Saturday before we opened painting various pieces of trash to spread all over the floor. We played to over 600 kids aged 8-10, and they became actively involved. It was a great experience.

My first paid directing job came in summer stock, where I directed Edward Albee’s “Zoo Story,” a two-man theatre of the absurd piece. Both of my actors were paid, and I had a reasonable although brief rehearsal period. We performed in the round, and the only set piece was a bench. The play ends with the main character impaling himself on a knife he has forced the other character to hold, and there was not a sound in the audience for the last five minutes. It was thrilling to watch.

In graduate school I was paid for directing two productions, a touring children’s theatre production of an adaptation of Alice in Wonderland and a summer stock production of Never Too Late. For the children’s theatre production I was blessed with a highly qualified and experienced faculty member scene designer and by far the best costume designer I have ever had, a graduate student who was designing Alice as her MA thesis. She is currently a tenured associate professor of costume design at SUNY Brockport. The concept for the production was a company creating Wonderland for Alice, and we used changeable periaktoi for the scenery and a base costume plus oversized heads and hats as add-ons for the company members. I had original music composed and recorded, and was especially happy with the movement in the production. My commitment to children’s theatre was reinforced; there is no better feeling than making hundreds of kids happy.

In Never Too Late I was required to cast some actors who didn’t have much to do in the other six productions of the season. So I surrounded them with stronger people where I could and concentrated on coaching the weaker performers in their first major roles. We had only two weeks to rehearse, as is typical in summer stock, and although by absolute standards they were still weak I was delighted with the progress they made. The entire run was sold out, and the audience certainly enjoyed themselves.

I directed two productions at Ohio Northern University in my first full-time teaching job following the PhD, The Glass Menagerie and Twelfth Night. Again I had professional scene and costume designers, and both shows were lovely to look at. The actors were inexperienced and weak, but I taught three-term sequences in voice for the stage, stage movement, and acting, and by the time of Twelfth Night I had trained enough actors so that the production was more than competent. My Malvolio was also my costume designer, and his experience anchored the cast. I also used three actors from The Glass Menagerie the previous quarter, and they were able to help the rest of the cast adapt to my directorial style. Incidentally, I have recently reconnected with the woman who played Laura and Maria on Facebook (she is now 60, amazingly enough), and was delighted to learn she married The Gentleman Caller. My costume designer/Malvolio is still designing in the San Francisco area.

If I thought that the student actors at Ohio Northern University were weak, inexperienced, and untrained, however, imagine my surprise when I joined the faculty of Beaver College (now Arcadia University) in suburban Philadelphia. I was technically a member of the English Department, and I ran a theatre program all by myself. Fortunately I inherited a part-time scene designer/technical director from another college, so I wasn’t entirely alone. The situation was complicated by the twin facts that I was replacing a well-loved faculty member who had been denied tenure, and that the school was a former women’s college that had only recently begun admitting men. I had to find shows to direct that featured women primarily.

With this in mind, during the first year I directed Paul Zindel’s And Miss Reardon Drinks a Little. The production from my point of view was little better than a disaster; the set was horrible, the lighting very poor, and during rehearsals I did little more than bump heads with the actors. They resented me because I was not the previous faculty director, and I resented them because they would not work and expected to be told how well they were doing. They at least knew all their lines and didn’t fall off the stage, but that was about all I could say about the production. Amazingly enough, my supervisors were pleased. Alltheyexpectedfromatheatredirectorwastobeababysitter for some underachieving rich girls. I started applying for other teaching jobs.

First, though, I had to expand the acting pool. The best way to do this was to direct a musical. This is more complicated than it looks, since you have to coordinate music along with everything else. I found a music faculty member willing to help, though, and we agreed on Brecht/Weill’s The Threepenny Opera. At auditions, actor/singers came out of the woodwork, and I was able to cast the production fairly well. Unfortunately, the woman who played Jenny was one of the holdovers with a bad attitude and the young black man I cast as Tiger Brown only wanted to come to rehearsals when he felt like it. I threw him out of the cast and played the role myself. After that I got more cooperation. The production was only adequate, but it was the first musical ever done at the college and everyone was delighted. They say time heals all wounds, and in this case every year more and more of the leftovers left. I was able to do things my way, and attitudes were adjusted. The remaining productions I directed there were considerably improved. For example, during my second year there I did A Midsummer Night’s Dream, Harold Pinter’s Old Times, and a touring children’s theatre production entitled Golliwhoppers! For Midsummer I designed a removable thrust stage that could be reused, and it formed the basis for the set for Old Times when moved on stage, reversed, and raked. Midsummer got sustained laughter for about five minutes during the play-within-a-play when Thisbe poked out an orange that was serving as a falsie when he/she stabbed herself, and Old Times stirred discussion all over campus. I had arrived, but I still wanted to leave; I needed to stretch my wings with more experienced actors, better facilities, and most of all some talented colleagues.

During my last year in Philadelphia I did another musical (Jacques Brel) and a Neil Simon. I also had a couple of students who directed productions for their senior projects, the first time that had been done. Under my leadership we received a grant to update the lighting system with a new computerized dimmer board and a bunch of new instruments. I taught a course in stagecraft, including scenery and lighting, and designed sets and lights for Jacques Brel using the thrust stage we had built the previous year and the new light board. The students learned by example what could be achieved with such limited resources. The orchestra was onstage behind scrim, on which we rear- projected appropriate images for each song. While one of the men and one of the women were singing beyond their ranges, the show was really quite lovely.

Fortunately the next fall I left Beaver College for a new job at Oakland University in Rochester, Michigan. It was a relatively new campus (started in the fifties as a branch of Michigan State) without an academic theatre department. Instead they had a professional actor- training program without a degree, and what was called the Student Enterprise Theatre (SET), which produced in a barn on campus. The Department of Music produced musicals. There was also an LORT-C company on campus, which had no connection to the academic program at all. So there were four producing organizations, with no connection to academic theatre. They eliminated the actor-training program as too expensive, and hired me to create an academic program that would coordinate with the other producing organizations on campus. In this I partly succeeded and partly failed during the next seven years.

I started by organizing an academic theatre curriculum, and staffing it with existing faculty, an actor from the LORT theatre, the director of the SET, and a designer/TD that we hired the next year. That young man, incidentally, turned into an excellent director and went on to chair several departments. He is currently chair of theatre at Cal State LA. I directed one production per year, including Moliere’s The Miser; Peter Shaffer’s Equus; Zindel’s The Effect of Gamma Rays on Man-in-the-Moon Marigolds; The Importance of Being Earnest; Romeo and Juliet; Beckett’s Waiting for Godot; and the musical Fiddler on the Roof. Along the way we formed a new Department of Theatre and Dance, which I chaired, and merged the SET into it. I paved the way for that by directing three joint productions, one of which was also jointly produced by the Department of Music.

The memories I have of these productions vary in intensity and content. For example, when I decided to do Equus I had an agreement with an English professor that he would play Dysart. Two days before auditions he informed me that he couldn’t do it and I had to choose between canceling the production, casting a student, or playing the role myself. I chose to cast a student, and he did as well as a twenty-year- old could playing one of the most complicated roles for a middle-aged man that was ever written (recall that Richard Burton played it on Broadway and in the film). But he just was not up to it. The production was interesting nonetheless, not least because the young actor who played Alan Strang walked in off the streets to audition and was wonderful. It turned out he had just finished his BFA in acting at an Iowa university and saw the audition announcement in the newspaper.

We also made unusual arrangements to rehearse the nude scene. I figured that it wouldn’t work to wait until dress rehearsal for the actors to get naked on stage, so I scheduled nude rehearsals for them starting as soon as they were off book. My wife graciously agreed to chaperone, since otherwise the 17-year-old daughter of a minister I had cast as the young girl would have been naked in a room full of men, two of whom were old enough to be her father. These rehearsals were closed, but by the time we got to tech rehearsals I insisted that they had to get used to strangers seeing them naked so I required the cast and crew to remain in the theatre during the nude scene. It worked well enough; by performance time they were quite comfortable.

One problem I anticipated turned out not to be a problem at all. It would have been entirely inappropriate for the young man to have an erection during the scene, and yet I was afraid that almost any young man would do exactly that when working with an attractive naked young woman. I forgot that there is exactly one group of young men—namely, gay young men—who would probably not have that problem. And my young actor, it turned out, was gay. Also, before each performance he disappeared into the shower alone, and nobody ever asked what he did in there. Needless to say, it never came up.

My production of Earnest was pretty routine for a college production, but I almost caused a controversy. At auditions I asked a young man to audition for the role of Lady Bracknell and he was brilliant, capturing exactly the dry humor that makes the role so memorable. I wanted to cast him, and I should have cast him, but in the end I bowed to conventional wisdom and cast a woman instead. To this day I feel I owe that young man an apology.

I did Romeo and Juliet the year after I participated in a National Endowment for the Humanities summer seminar in Shakespeare at the University of Iowa. A dozen of us from all over the country studied for eight weeks with Professor Miriam Gilbert, a leading Shakespeare in performance scholar. When I got back to campus I was bursting with ideas, and with R&J I got a chance to try them out. The production was seriously flawed because of the limited acting pool, but I was very pleased with my Romeo, Juliet, and Mercutio, all three of whom later became professional actors. I was very pleased that my Romeo had played one of the horses in Equus three years earlier; there is something to this idea of developing actors through training and experience. Something had gone right since my colleagues in the English Department acknowledged that the language was handled well. I don’t think even the Shakespeare professor realized, though, that I used the so-called Bad Quarto text (Q1) as the basis for my script, supplemented by lines from Q2 and F1, the First Folio. This version cut some 600 lines, and ended up indeed as “the two hours traffic of our stage.”

One of the stupidest things I have ever done as a director was to layer an additional level of ambiguity onto my production of Waiting for Godot. As if the play wasn’t complex enough already, I made it even more difficult for the audience to follow by casting Estragon and Lucky as women. I’m sure I had something in mind about the role of women in modern society, but whatever it was it failed utterly. And the production was not aided by the set. Instead of the bare stage with a tree specified by the playwright, I allowed the set designer to foist a series of interconnected platforms on me, including a couple of tubs filled with water. Naturally, since the water was there I had to use it. The actor was a good sport, getting drenched on stage every night, but I doubt if even he had any idea what was going on. I’m sure the audience didn’t. I had a good time, and the production was interesting, but it was neither an artistic nor a financial success.

During the final dress rehearsal for Fiddler, the inexperienced and frightened actor playing Lazar Wolf forgot his lines massively during his scene with Tevya. The entire joke about him wanting the daughter and Tevya thinking he wanted a cow was lost, and instead Tevya improvised something about wanting his daughter. It was very confusing, and quite funny in a weird sort of way. Unfortunately that is the version preserved on videotape and immortalized on DVD, so every few years when I review it I get to live the experience all over again. The actor’s wife, by the way, who was in the chorus, made sure it never happened during performance by drilling him in his lines daily after that. One of my favorite memories from that production is the bottle dance at the wedding, which was done straight without the fake hats and bottle often used. Incidentally, the woman I cast as Tzeitl was the same young woman who had played Tillie in Marigolds three years earlier. What goes around comes around, I guess.

The only coordination I ever achieved with the LORT company was taking my large Intro to Theatre classes (100+ students per semester) to productions there. They were very happy for the increased  business, but it never occurred to any of them to come to any of our productions, or even to audition any of our students. I suspect that if I had stayed longer that might have changed, but I was ready to take the next step in my career. I became the Chair of a PhD and MFA-granting department at Southern Illinois University.

While in Carbondale I directed only five productions: The Member of the Wedding; Brigadoon; Amadeus; Life With Father; and Children of a Lesser God. We had no fewer than five faculty directors, and as Chair I had far too many other responsibilities to direct more frequently. After four years I started law school and never directed again. Nonetheless, these five productions included the three best I ever directed.

The Member of the Wedding featured the best cast I ever had from top to bottom, including the child actor. I had a total of seven graduate students in the production, including six MFA candidates and one PhD candidate. One of the women used the role as her MFA thesis. I think she thought she was playing the main character, but in my judgment the main character of the play is Berenice and not Frankie. Be that as it may, the audience loved the production and I loved directing it. It was a great pleasure to work with so many fine professionals in training. Six of those actors have gone on to satisfying careers, and the seventh became an educational administrator. May God have mercy on his soul.

That production contained my absolute favorite moment in any show I have directed. At the end of Act II Berenice sings a spiritual, with Frankie and John Henry joining in. I gave the actress her head to improvise as she saw fit, and she supplemented the song with lovely grace notes and additional lyrics. At the end she had both “children” on her lap in a rocking chair, and she stopped singing just before the end of the song. All the audience heard was the loud and off-key singing of the children, followed by the subdued Sadie stating, “Lord, you children have sharp bones.” The curtain followed immediately. I still get goose bumps when I watch that moment on video.

The following summer I directed Brigadoon in our semi-professional Summer Playhouse. We hired both undergraduate and graduate actor/singers, paid them moderately well, and gave them 6 semester hours of credit. At that time we did two musicals and two straight plays, and I decided to be the swing man and direct a musical one summer and a straight play the next. That way the other directors could also get somewhat broader experiences. We went to regional auditions in St. Louis and also held auditions on campus, and for the second year in a  row we had serious trouble finding a baritone. I finally hired a 19-year-old from on campus for the leading male role in Brigadoon and he did well enough, but he got blown away by both the lead soprano he played opposite and the tenor. There was simply nothing to be done about it. My best experience with Brigadoon, though, was working with the professional staff. The choreographer was brilliant, the scene designer was from Czechoslovakia and a leading European scenographer, and the conductor, rehearsal pianist, and vocal coach were seasoned professionals. I was as happy as a pig in shit, and the production was well-received.

The next summer I was due to direct a straight play, and I picked one that had intrigued me for years: Peter Shaffer’s Amadeus. Everyone was worried because this wasn’t a farce, a murder mystery, or a Neil Simon, but I was convinced that our audience was willing to accept something more substantial. I knew I was ready for it. I was able to cast one of our MFA acting candidates (with whom I had worked previously in both The Member of the Wedding and Brigadoon) as Mozart and find a Salieri at regional auditions. The rest of the cast was filled out with other members of the company. We opened after two weeks of rehearsal and sold the place out. Our audience, and our actors, were indeed ready for something more substantial. I was pleased and proud. Incidentally, one of the undergraduates we hired from off campus (he played the Cook in Amadeus) was later a two-time Tony winner.

During the following summer I participated in another National Endowment for the Humanities summer seminar in Shakespeare, this time at Northwestern University with world-class scholar John Styan. Before leaving for eight weeks, though, I directed a run-of-the- mill production of Life With Father. Again a visiting actress blew away a local actor in the leading roles, but the overall level of performance was satisfactory. I was happy to use the same child actor I had previously worked with, plus the son of a professor and future Chair of the Department of Speech Communication. I left the day after opening night. That season our Summer Playhouse lost a significant amount of money, which was my responsibility even though I was out of town and there was an Acting Chair for the summer. I wanted to resign and the Dean wanted me to stay, and he and I finally agreed that I would serve one more year, make up the deficit, and then resign. That’s exactly what I did, although the rest of the Department never knew about our little tiff. Fortunately there was another qualified person to serve as Chair, even though the Department and the Dean had passed him over to hire me three years before.

That meant that the next summer I was scheduled to direct a musical, and we settled on The Sound of Music. I had little interest in it at that point, however, and fortunately for me one of the junior but very good directors in the Department (Liz Carlin) offered to direct it instead. I agreed to her proposal with alacrity, and instead of a tired old musical I had no interest in chose Children of a Lesser God for my last production. I suspect that the choreographer put her up to it, knowing I wasn’t interested in a musical, but I never questioned her motives. I went into casting and rehearsals in a highly enthusiastic mood.

The first problem was casting, and here again I lucked out. We had a woman undergraduate who was hearing but raised by deaf parents. Consequently she was a native speaker of ASL. Her audition blew me away; it was the role she was born to play. I was able to hire the wife of one of our PhD candidates as an ASL coach, and we were off and running. My scene designer (I had fired the Czech and replaced him with one of our PhD students who also had an MFA in design) came up with a beautiful thrust stage for me that put the action in the center of the audience, and he designed at my behest a set of “acting blocks” that could be reconfigured in a dozen different ways by the actors to change locations. All but two of the actors were our own students, and one of those two was an incoming faculty member. From the beginning it was a close-knit group, and it developed into the best ensemble cast I ever worked with.

This was the eighties, and we ran into a problem with the local deaf community. They were going to picket us because we cast hearing actors in deaf roles. I explained to the leadership what we were doing, and invited them to attend a rehearsal. Once they did, and saw the beauty and accuracy of the signing, they didn’t have a problem. I did suggest the use of simultaneous sign translation for the part of the show that was not signed, and they agreed it would be helpful for the deaf members of the audience. We were able to do this without much difficulty, even hiring translators suggested by the deaf community.

Children of a Lesser God was a moving experience for the audience, the cast, the crew, and, not least, me. I have never been happier with the selection of a script. To this day those emotions come back when I review the video. It was without question the most moving and best overall production I ever directed.

And that was just as well, since it turned out to be the last. I took a year off to find out what I wanted to be when I grew up, and decided that the answer was not a professor and director, despite having done just that for twenty years. Instead I went to law school and the rest, as they say, is history.

Since I retired four years ago I have begun acting again, and am pleasantly surprised every time it turns out to be a good experience. I think too much to be a good actor, which is in large part why I became a director instead. I have found, though, that I can set that all aside and rely on my skills, experience, and age. It has been 25 years since I last directed, although lately I have begun considering the possibility again. Whether it happens or not, though, I will always have my memories. I might not have admitted it at the time, but they are all good. 

The Most Fun I Had As An Attorney

      Let me begin by saying that being an attorney is a lot of hard work. And most of it is repetitive and somewhat boring. Not that writing a will or a trust, or drafting a deed, does not have a certain amount of satisfaction, but there are moments of happiness imbedded in the work, and some of them are joyous. I suppose that the same can be said of most professions; I know that my prior work as a theatre professor often brought me great joy. Attorneys, though, especially those of us who specialize in trial work as our firm did, are often seen as joyless sharks, attacking indiscriminately whatever moves. My memories bring a contended smile to my face even now, and I thought it might be useful to share some of them.

     I was our firm's designated appeal specialist, since appeals require extensive research combined with a certain amount of oral advocacy and I had extensive experience with both. By the time I joined the firm I had published several research essays in the Illinois State Bar Journal, not to mention two books and more than a dozen theatre history and literary criticism papers. I also had twenty years of experience in persuading bored undergraduates to take an interest in whatever I was talking about. Believe it or not, arguing to judges is a lot easier. So I often found myself doing the appeals for cases another attorney in the firm had tried and lost, and it was my job to get them a new trial by pointing out the ways in which the first trial had been unfair or had broken the rules.

     Incidentally, once a jury has made a decision it is usually very difficult to get that decision overturned. There are a few standard arguments that can be made, and the appeals process starts by reading the transcript of the trial. It is the appellate attorney's job to fit the facts of the trial into the law regarding reversing a jury verdict, and then to persuade the appellate court (composed of three judges who do nothing but rule on appeals) that they are right.

     In my second appeal, one of the partners in the firm had lost a jury trial involving alleged medical malpractice against an ER doc who treated a man who got a foreign object stuck in his eye. The man later lost the eye. The special circumstance was that this doc had been trained for years as an ophthalmologist and so had specialized knowledge of the eye. It was a very close thing and the jury took two days to deliberate, but eventually they returned a verdict for the doc. The partner wanted very badly to try the case again.

     As I almost finished reading the transcript, it jumped out at me: that fleeting moment of joy. After all the testimony was complete, and after the lawyers had argued their cases to the jury, the judge had instructed the jury on the law that they were to follow in deciding the case. One of those instructions had to do with the definition of proximate cause. There were standard definitions the judge was to use, depending on the circumstances. The attorneys submit the ones they want to the judge, and the judge decides which to use. If one attorney submits one instruction; the other attorney submits a different instruction; the first attorney objects on the record; and the judge chooses that instruction, there is an automatic reversal if the first attorney appeals on that issue. That's pretty rare; mostly whether or not reversal is justified is a question of the appellate court's discretion, but in this case it is required. This is the golden apple of appeals; you just can't lose. And that's where I found myself.

     There was still a lot of work to do; I raised a few other issues, none of which was likely to result in reversal, and filed my written argument (called a brief, although they are not brief). I then replied to the response of the doc's defense attorneys (actually, the doc's insurance company's defense attorneys, but that's another story; nobody is allowed to mention insurance, even though everybody, including the jurors, know that there is insurance involved). I was interested to see how they would respond to my golden apple, but they seemed to lose it among all the other issues I raised.

     Then came oral argument, about a year after the verdict was rendered. While I had buried my pet issue in the middle of my brief I led with it in oral argument and I spent most of my time on it. When it was his turn opposing counsel began to plod through all the issues I had raised one at a time in order, but the judges stopped that pretty quickly and questioned him extensively on the jury instruction. He knew very little about it, and by the end of the argument it was clear to everyone in the courtroom that I would get a new trial.

     When the partner retried the case a few months later he won, getting the now one-eyed man over $500,000 in damages. Of that amount our firm got over $200,000 in fees plus the reimbursement of all of our expenses. That was a good day.

     Incidentally, after we both retired I played bridge with that judge for many years. and still do on occasion. I asked him once about that trial, and he admitted that he just took his eye off the ball for a minute and made a mistake. He hadn't even known that I was the one who got him reversed. But at least he never made that mistake again.  

     Shortly after completing the eye case, our firm was retained by the husband of a woman who had been convicted of murder in White County in southern Illinois. The family thought that the public defender would be good enough, but as we discovered they were tragically wrong. One of our partners was hired to do the direct appeal, and the husband thought all we had to do was demonstrate reasonable doubt. We had to disabuse him of this common belief; once a criminal defendant is convicted the bar is much higher. The partner turned the appeal over to me, and I was hip-deep in my first murder case since I interned with a well-known State's Attorney while I was in law school.

     In that case I provided support for the prosecution to seek the death penalty, which I deeply regret. The defendant pleaded guilty to the only count in the indictment that carried the death penalty, and during the plea hearing I sat at the prosecution table immediately beside the defendant. His mere presence was so scary that the hair on the back of my neck stood on end. During the penalty phase of the trial the jury voted unanimously for the death penalty. In addition to providing the proper murder count (murder during the commission of robbery) I provided the necessary proof that the defendant was at least 18 years old at the time of the murder. Fortunately, while the case was on appeal the Illinois legislature banned the death penalty and his sentence was commuted to life without the possibility of parole.

     At least in this new case there was no death penalty; the defendant had been sentenced to 30 years in the penitentiary. At the time this meant that she would be paroled in just under 15 years. Nowadays convicted murderers must serve 100% of their sentences. As I began the appeal it became clear that there was very little chance of success. There was one interesting issue, though; the prosecution had introduced evidence of the kinds of books on the defendant's bookshelves, which were predominantly murder mysteries. I stretched a point to argue that this was a violation of her constitutional rights, but I didn't expect to win.

     This was an entirely circumstantial case. There were no eyewitnesses, no fingerprints, no murder weapon, no DNA, no bloodstains. The victim had been shot, and the defendant had never owned a gun. She was the last person to have been seen with the victim, and when she returned home after she and the victim went to the mall she immediately washed her clothes, reportedly with a detergent known to be good at removing blood. Most damningly, the victim's partially mummified body was found in the defendant's storage locker some months after the murder. That might have been enough for the jury to find reasonable doubt, but as the evidence was submitted they did not.

     A happy coincidence occurred at oral argument. Representing the State of Illinois was an attorney from the SAPs (the Office of the State Appellate Prosecutors). I had worked for the Office of the State Appellate Defenders during my second summer in law school, and the SAPs had their office next door. I recall getting a man's felony conviction reversed the day after he was released from prison, and getting a juvenile's conviction for robbing a Huck's reversed. The SAP who was on the other side in the murder case was the same attorney who was on the other side in both of those cases. He remembered me very well, and took great pleasure in telling me that the juvenile I had kept out of the penitentiary was now serving a sentence for another robbery. He did me the courtesy of telling me that I had possibly won a reversal for my client because of my unique issue. He was wrong, of course; the conviction was affirmed.

     The next step in the process was to ask the Illinois Supreme Court to hear the appeal. This was really just pro forma, since the Supreme Court decides which cases it will hear and very seldom hears a criminal case unless there is a truly egregious error. As expected, they declined to hear this case.

     After the denial of the Supreme Court our real job on this case began. In Illinois, and in most other states, the direct appeal is limited to issues, witnesses, and arguments raised at the trial. This is one of the reasons that getting convictions reversed on direct appeal is so difficult. But often there are issues, evidence, and witnesses that were not raised at trial that can demonstrate a defendant's innocence, or some other reason to reverse the conviction such as the ineffective assistance of counsel. Something called a post-conviction petition exists for such a case.

     I had reviewed not only the transcript of the trial and all of the evidence admitted, but also all of the paperwork generated by both the prosecution and the defense. This included a very large number of police reports documenting the entire investigation and identifying a larger number of potential witnesses. The public defender claimed to have interviewed all of these witnesses, and had not called any of them to testify because he did not believe they had anything to contribute to the defense. 

     My first job in the post-conviction process was to interview all of those potential witnesses. What I found was surprising. I interviewed about 20 people, located all around southern Illinois, and every single one of them denied ever having spoken to the public defender. That in itself was troubling, but so was the information that they gave me. One of them told me he had told the police that he had heard another man in a bar after the murder bragging that he had killed the victim. Another was the administrator of a trust of which the victim was one of several beneficiaries, each of whom received a lot more money once the victim was dead. Another was a man suspected of being a major drug dealer in White County. Another was the boyfriend of the victim. It struck me that, in a circumstantial case, the more stuff that was thrown against the wall, the more likely it was that some of it would stick. If the public defender had called all of these people as witnesses, the jury might have become confused enough to find reasonable doubt. That he did not do so was troubling, but it was completely unacceptable that he never even interviewed them. It looked to me like I had a clear case of ineffective assistance of counsel.

     The Bill of Rights provides, in pertinent part, that every criminal defendant is entitled to be represented by counsel, but that counsel must be effective to meet the constitutional requirement. Effective representation need not result in an acquittal, but it must include things a reasonably competent attorney would do. Here, arguably, it did not.

     A note about this public defender is in order. He was an older gentleman, in his sixties. He had previously served as State's Attorney, circuit judge, and appellate court judge. The prevailing theory in White County was that he was appointed public defender to mark out his time until retirement, at which time his pension would be enhanced by additional years of service. He tended to plead defendants out rather than go to trial, and this was the first and only murder case he had defended in his entire career. It looked like he had cut a few too many corners to me. 

     With a strong theory of the case in hand, I next drafted the actual motion for post-conviction relief. I was seeking a new trial based upon the ineffective assistance of counsel. I alleged facts from outside the confines of the trial, so it was beyond the scope of the direct appeal. I had to convince the judge that it was more likely than not that I could prove my case, and in a hearing that was ostensibly open to the public but was in fact attended only by the lawyers and the court officials (the judge, the bailiff, and the court reporter) we argued the merits. I succeeded, as I had expected, and the court ordered an evidentiary hearing within three months. This would be like a trial, and I would call witnesses and examine them as if it were part of the defense's case in the original trial. The main difference would be that there would be no jury; the judge would decide the case. The result would be, not a finding of innocence, but an order for a new trial at which we would present our evidence, as well as all the evidence from the first trial, to a jury.

     Before the evidentiary hearing I wanted to lock in the testimony of some of my witnesses, so I scheduled depositions. These are not allowed in criminal cases but technically post conviction petitions are civil cases. So I deposed the public defender, his assistant who was the public defender in a neighboring county, and the victim's boyfriend. There were no bombshells, but at least I knew what these hostile witnesses would say. The stage was set.

     I tried the case with the partner from my firm as co-counsel. He examined the hostile witnesses and I took the rest. Like the hearing on the petition this was an open hearing, but unlike the hearing on the petition the courtroom was packed. There was even newspaper coverage of every aspect of the case. I guess in a small southern Illinois county murder is a rare thing, and they understood that we were alleging that the public defender was ineffective. It was quite a circus.

     Unfortunately it was not quite enough of a circus. Even after the explosive testimony that the public defender had never interviewed any of these witnesses, and my argument that he had lied about it, the judge ruled that we had not proven that absent these actions by the public defender the results of the trial would have been different. That is the second prong of the two-pronged test for ineffective assistance. Given that, he never even reached the question of whether counsel was effective.

     Naturally we appealed, and I felt pretty good about our chances. For one thing all we had to do was prove both prongs by a preponderance of the evidence, or that it was more likely true than not. The judge at the evidentiary hearing was the same judge who presided at the trial, and the appellate court would consider the evidence we presented de novo, rather than giving any deference to the hearing judge's evaluation. What we forgot was that this was the same appellate court on which the public defender had sat just a few years earlier, and it was understandable that they would be loathe to find their former colleague was ineffective.

     Oral argument went very well; the court asked good questions and appeared to be more interested in the evidence presented for the first prong than the second. That was good news. We settled in to wait for an order from the appellate court. They took their time about it, finally issuing an order denying our request for a new trial based on the second prong. It was close, with one judge on our side but two opposing. This order, though, was where my moment of happiness in this case came. Unlike the hearing judge, the appellate court reached the first prong and explicitly found that the public defender had been ineffective. It didn't help our client, but arguably it improved the system of criminal justice in White County for the foreseeable future.

     There were still things we could have done; there is an entire sequence of petitions and hearings we could have filed in federal court. This would have been a petition for a writ of habeas corpus (literally, have her body) started in the U.S. District Court, continued in the U.S. Court of Appeals for the Seventh Circuit, and ending in the U.S. Supreme Court. But by this time the defendant's husband had filed for divorce and bankruptcy, and our $75,000 bill went unpaid. I guess this is why the conventional wisdom in criminal cases is that an attorney should get his fees up front and in cash. The partner did not, and our firm paid the price.

     My first jury trial was also a source of happiness. It was a case I was never supposed to try, but as we routinely did in our firm I covered the final pre-trial hearing in Douglas County because another of our partners was out of town. Imagine my surprise when the judge told me that in his county whoever shows up for the final pre-trial hearing tries the case. I could do nothing but smile and agree, and a month later I showed up with shining morning face and a suitcase full of evidence.

     It wasn't as if I was unfamiliar with the case; I had taken most of the depositions and so knew what was going on. It was a products liability case against a herbicide company, two farmers, and a spraying company that sprayed the herbicide the farmers bought. The allegations were that the product was defective when it left the factory, and that it was sprayed when the wind was too high on two occasions and the herbicide carried through the air and killed my client's vegetables. He was a vegetable grower and we alleged he lost over $200,000 that year.

     My client and I were dwarfed in the courtroom by the presence of five attorneys for the defense and their clients. I rather enjoyed playing up the David and Goliath aspect of the case in opening statement and closing argument. The attorneys all worked for insurance companies and were among the most prominent in central Illinois. As in most cases like this the case was top-heavy with expert witnesses. who testified as they were paid to do. My witnesses found the herbicide to be a dangerous product, and theirs found that it was not. Mine found that the herbicide was carried on the wind, and theirs found that it was not. It came down to who the jury was going to believe. And the biggest single component of who to believe comes down to which attorney do they trust. My client was not particularly likable, but fortunately the other attorneys came across as pretty nasty. So I had an advantage.

     Most jury trials, involving auto accidents, for example, take a day or two, Even complex medical malpractice cases rarely take more than a week. This case took two full weeks and the jury deliberated for two entire days, a record for Douglas County. In the end, late on Friday afternoon of the second week, the jury came back with a verdict for my client. I was somewhat surprised but so happy that I didn't even hear the judge read the amount of damages awarded. It turned out to be $125,000. The other attorneys congratulated me and offered to take me out for a drink; for them it was just another day at the office, and only the insurance companies' money was on the line. When I took a rain check because I had to get home I let it slip that this was my first jury trial. Since I was as old as they were and they had been attorneys for twenty years or more this was shocking; there wasn't a sound for what seemed like five minutes. By this time the judge had joined us, and he looked at me with more respect than he had throughout the trial. I don't know what he thought, but as long as he was on the bench in Douglas County I was treated very well indeed.

     Over the fourteen years I practiced with my firm I had many more jury trials in various county courthouses, and many more moments of joy. In federal court, though, mostly I had bench trials where the judge makes the decision and settlement conferences where a magistrate judge pounds on both sides to settle the case before trial. I used to enjoy settlement conferences a great deal, because every time I went into one I came out with money for my client, if not as much as my client thought he or she deserved. The one that sticks out in my mind was for a client who fell from a tree stand that broke while deer hunting. Once again this was a products liability case and I had assembled my experts: a metallurgical engineer and a design consultant. The company was out of business but we found the insurance company that represented it at the time of the injury, so we had somebody to sue. 

     The case progressed through written discovery and the depositions of witnesses, and the court called us in for a settlement conference. My client wanted $150,000, although his medical bills were only $25,000 and he was not disabled, and the insurance company wanted to pay only that $25,000. The magistrate judge met with each of us in turn throughout the day, and at about 4:30 we settled the case for $75,000. That was about what I expected to get from a jury trial, and I was as happy as a clam. My client must also have been happy, since he later hired me for another case which we also settled.

     The most fun I ever had in a federal bench trial was in a case where our client was injured on a jet ski by a boat that hit him. It was one of the partners' cases, and he asked (not that I had any choice in the matter) me to try the case with him as second chair. I didn't mind; once again I had taken most of the depositions and knew the case pretty well. Negotiations for a settlement had broken down, so we tried the case before the magistrate judge. The trial went very badly, since we were unable to establish negligence on the part of the owner or driver of the boat. It was a one day trial, and during the afternoon break we casually asked the other attorneys if they would like to resume negotiations, since we were so obviously going to win. Much to my surprise they agreed, and we told the judge we wanted another half an hour. We started at the place where we were when negotiations broke down, and settled the case for just about twice that amount. After we reported the settlement to the judge he told us privately that he had been about to enter a verdict for the defense. I smiled all the way home.

     I was once again handed a case to appeal that I had not tried when a partner lost a bench trial in Champaign. This was a high-profile breach of employment contract case involving two of the main anchors in a network-affiliated television news organization. The television station had been sold by a local family to a regional television conglomerate, and their M.O. was to fire a lot of people and make the rest work more hours for the same pay. When they did that here, the anchors came to us for help and we sued. The written contracts stipulated that the employer could change the terms of employment at will, and that was what the judge had found.

     When I reviewed the transcript at the start of the appeal, I discovered something interesting. In writing his decision, the judge had said that the appellate court might reverse him because of the implied covenant of fair play, and that this meant that any change in the conditions of employment had to be within the reasonable expectations of the employee. This gave me my theory of the case, and in the brief I ran with it.

     It was during oral argument, though, that things really got to be fun. The three judge panel was cool if not downright hostile, but I kept hammering away at the fact that one of the anchors had his workload increased by 100%, and the other had hers increased by 75%, and that such increases could not be considered reasonable. As I repeated this mantra for the fourth or fifth time, the dawn began to break in the eyes of the judges. I could tell they were transitioning to my side of the issue, and sure enough when the decision came out they reversed the judgment of the circuit court. Further, they entered judgment for our clients and ordered a new trial on damages only.

     The partner handled the new trial, and he came away with a judgment for about $250,000. Damages in a breach of contract case are comparatively limited; there is no "pain and suffering", which is usually the element that pushes damages so high in negligence cases. Million dollar verdicts are not uncommon in medical malpractice cases, for example, but usually not in contract cases. Even so, the partner and I were convinced that our damages were too low, so we appealed again. I pointed out in the brief what the various categories of damages were, and how they should have been calculated. I asked for just over $400,000. When the television station's brief was due, we got a call requesting an extension of time from their attorneys. We agreed, and used the extra time to negotiate a settlement for $400,000. It turned out the insurance company had determined that we were going to win anyway and it didn't want to incur any additional attorney fees. Our share was $160,000 and the payment of all of our expenses. I got a nice bonus at the end of that year.

     The anchors, who were married, had moved to Chicago, where the man retired and the woman began work as a corporate attorney. She had gone to and graduated from law school while the suit and the appeals were pending. As far as I know they live there still.

     Early in my second year with the firm a partner and an associate left under less than optimal circumstances. I inherited one of the associate's federal cases, a breach of contract and consumer fraud action against the Menards in Terre Haute. It was a case I would not have filed myself, but it was my job to take it to a conclusion. Our client had purchased a home building kit that was advertised as containing everything needed to build an A-frame home. It turned out not to contain everything, and our client spent more than $150,000 in addition to the kit. He wanted all of that money back, and we were also seeking attorney fees and punitive damages. I conducted written discovery and took depositions of everyone involved, including my expert and Menards' expert. Not unexpectedly, the court entered summary judgment for Menards, finding that we could not win on any theory.

     I disagreed, and filed an appeal to the Seventh Circuit, one step down from the Supreme Court. I argued in my brief and also in oral argument that even if the advertising could not be construed as part of the contract, being seen as "mere puffery", the count alleging consumer fraud must stand. Toward the end of my argument I took a chance and made a Monty Python joke. The senior woman on the panel laughed out loud, and I knew I had an ally. And when the decision came down some months later I found that I was right. In a 2-1 decision the Court of Appeals reversed the District Court and reinstated the consumer fraud count of my suit. We prepared for trial and settled for more than the amount my expert was going to testify we were entitled to. My client was livid; he wanted all of his money back. I was finally able to explain to him why he couldn't get that much, and why settling for a sure thing was better than taking a chance and getting nothing.

     Incidentally, our former partner is now a well-respected judge and the associate is one of the premier personal injury attorneys in downstate Illinois. A total of four attorneys from our firm have become judges, and one was elected State's Attorney, which is not bad for a comparatively small firm in the middle of a cornfield. Three of us have retired from the firm, including the founding partner, and the other two partners with whom I worked are now about 75 and ready to retire themselves. A new generation will be guiding the firm's fortunes in the near future.

     Near the end of my career I was assigned the appeal in a high-profile criminal case. One of the partners had defended an attorney who had run for Congress twice in a case involving the Internal Revenue Service. He lost, and the client was sentenced to two years in the penitentiary. And this was not to be at Club Fed; he was to serve his sentence in the Menard Correctional Center, one of the roughest and most notorious prisons in the country. Manuel Noriega was one of their better-known inmates. We were anxious to get his conviction reversed. Fortunately there was a little time; he did not have to report for a week. I put together a motion to the Court of Appeals under one of their little-known but extremely useful rules. If I could convince them that we were likely to succeed on appeal, they would stay his sentence until the appeal process was complete.

     The problem was that I did not have a persuasive issue. In a federal appeal an attorney is limited to the issues raised in the post-conviction motion. As I quickly reviewed the transcript and that motion I saw only one possibility, and the District Court judge had ruled against us on that issue twice, albeit without giving his reasons. So I did some quick research, guided by the cases cited by the partner in his post-conviction motion, and sent off the motion with two days to spare. The client was resigned to his fate, and his wife was going to drop him off at the prison in two days. Meanwhile, a miracle happened.

     On the day the client was to begin serving his sentence, we got a fax from the Court of Appeals at about 4:00 p.m., telling us that the three judge panel assigned to the case had allowed my motion and stayed his sentence! The court had of course also faxed the order to the penitentiary, with the result that our client was released before they even finished processing him. He had to call his wife to turn around and come and get him.

     I retired from the firm before that appeal was complete; the partner finished it up and argued the case before the Seventh Circuit. Unfortunately he lost; our on-the-fly research was incomplete and our argument was shot down by a very recent case on the same subject. So about a year after his sentence was stayed our client went back to Menard and this time he stayed there. This was fourteen years ago, and I have been happily retired ever since. Thanks to the State of Illinois, Social Security, and TIAA (a private annuity company for college professors from my years of teaching before SIUC) I was able to retire at age 62. And thanks to my wife's pension we are quite comfortable.

     In a nifty turn of fate my final appeal was like my first appeal: a medical malpractice case against an eye doctor. This case was tried by our founding partner who when he came back from Danville where the case was tried tossed the case file on my desk and told me he came in second. I understood him to mean that he wanted me to appeal and get him a new trial. So I once again ordered the transcript and read it when it came in. It turns out that the defendant had been sloppy in his testimony. In answering a question he used language that could reasonably be construed as admitting negligence. This was enough to get the judgment reversed and a new trial ordered. This time I was to assist the partner in what would be both his last trial and my last trial.

     It was during my preparations for trial that my first moment of joy in this case came. The defendant ophthalmologist had videotaped all of his cataract surgeries through a camera attached to the microscope he used to look into the patient's eye. In this case he had implanted one of the artificial lenses backwards, ruining our client's vision. He did two subsequent surgeries for free, taking out the lens in the first and implanting a new one in the second. So there were three videotapes which we had obtained in discovery. As part of my due diligence I reviewed all three. They were pretty horrible to watch; each involved the doctor slicing into this guy's eyeball. In the first I saw the artificial lens held by forceps enter the field and inserted rapidly into the eye. I certainly couldn't tell that the lens was backwards and the doctor had testified that he had to do it quickly because he had so many to do each day. He threw the nurse who handed him the forceps under the bus by testifying that he had to trust her to give it to him right way up and she made a mistake. There is a rule in some states (the "Captain of the Ship" doctrine) which holds the surgeon responsible for all mistakes made in the operating room, but that is not the law in Illinois. The second videotape yielded nothing helpful, but the third gave me that moment of joy. In the final surgery, when the forceps holding the lens entered the surgeon's field of vision through the microscope, he briefly turned it upside down and then right side up again, clearly checking to make sure it was in the correct orientation. The doctor's defense was shot to pieces, from his own actions. The whole procedure of checking the lens took less than a second.

     During the trial things went just as planned. When he was shown the videotape the ophthalmologist had no explanation why he had not checked the lens during the first surgery. The jury quickly found in our favor, awarding our client $125,000. The amount would have been a lot higher if our client had been younger, but he had retired and had no lost income. We settled the case at a small discount to forestall an appeal. We would have won, but it would have taken a lot of time and our client's attorney fees would have increased from the standard 1/3 of the judgment to 40% because of an appeal.

     There was one more fleeting moment of happiness in this case. The insurance company's attorneys retained a new expert for the second trial and I saw a way to mess with their heads. They were clearly less than satisfied with the first expert's testimony, so we put him on our witness list. Opposing counsel went ballistic, not only moving to strike the witness but moving for sanctions against us. I argued that he was a previously disclosed witness who had been properly deposed and had in fact testified during the first trial. His testimony would be useful to us, and we were perfectly within our rights to call him as am witness. The judge of course agreed, and the expert remained on our witness list. Of course we had no intention in the world of calling him to testify, but opposing counsel did not know that even if they might have guessed it. They spent a lot of time planning how to cross-examine their own witness, and all of that time turned out to be wasted. I don't know for a fact, but my guess is the insurance company would not have compensated them for that time.

     A life in the law can be satisfying as well as lucrative. I was not a partner in my firm but I was compensated fairly. Generally an associate attorney such as I was is expected to bring into the firm three times his or her salary annually, to pay for his salary and benefits as well as his assistant's and his share of the overhead (other staff salaries and benefits, the mortgage, utilities, unreimbursed client expenses, and so on). In my first two years I did not hit that mark, but after I was established and began to have some success with trials and appeals it happened automatically. And the more I brought in the more my annual bonus increased. I did not have access to most of the really big cases; the partners kept these for themselves. Even so I took my happiness where I could find it, and there were many moments of joy not necessarily connected to a paycheck.

     More information about several of these cases and a few others that stick in my mind for one reason or another may be found in my legal memoir, For Three Weeks I Owned the University of Illinois (Lulu Press, 2011). It is available on Amazon.com. 

In the Wake of Sputnik

     I was supposed to be a rocket scientist. Let me explain.

    When Sputnik first orbited the earth in 1956 I was in the fifth grade. Our rockets kept exploding on the launch pad. Eventually the Navy launched Vanguard and the Air Force launched Explorer, but it was too late. America had lost the race to space. They even sent Yuri Gagarin into orbit before our first suborbital manned flight. The American people demanded that something be done about it. So Congress did what Congress does and threw money at the problem.

    The first thing that happened to me as a result was in seventh grade, a year and a half after Sputnik. MIT had taken some of that federal money and developed a new math curriculum for grade schools. An outfit known as the School Mathematics Study Group (SMSG) sent its curriculum, as set forth in some cheap papercover books, to any elementary school that asked for it. Mine did, so in the Fall of 1958 I started studying algebra and geometry, subjects usually taught in high school. I loved it, and did very well.

    Then the summer after seventh grade I was invited to participate in a special science class for able and ambitious students. There were a few seventh graders and a bunch of eighth graders, and we studied the scientific method and how to report our findings. I remember that I was part of a project with two eighth grade girls, and that we conducted a study entitled "Growing Arizona Plants in a Martian Atmosphere". It was fun; my main job was to generate the several different gases (Oxygen, Nitrogen, Hydrogen, etc.) that made up the Martian atmosphere. We pumped them into a bell jar previously loaded with cacti, and stored it in a cooler with dry ice to approximate the temperatures on Mars. We presented our paper to some guest judges and came in second. It seems our method of getting the gases into the bell jar didn't approximate the proportions actually in the Martian atmosphere.

    During eighth grade we continued our math studies with the SMSG texts, so that by the time I got to high school algebra was mostly a review. That year I placed fourth in the first year advanced section of the state math contest and received a nice book as a prize. My algebra teacher took me aside and explained that I could have done better if I had gone beyond the classwork; that was what the students did who placed higher. So the next year I not only took Geometry I and II, I also took Algebra III and IV. Sure enough, I won the state math contest, level two advanced; the first time anyone from my high school had done so well. This time I won a slide rule, a pretty good prize at the time. After I placed in the top three in level three advanced in my junior year, I started taking math classes at the local community college during my senior year and placed second in level four advanced. As a result the Arizona Association of Teachers of Mathematics awarded me a $500 college scholarship. Needless to say, that came in handy.

    The summer after my sophomore year I was selected to participate in the Junior Engineers and Scientists Summer Institute (JESSI) at New Mexico State University. NMSU had taken its share of the federal funding and established a scholarship fund, so all my expenses were paid. That was where I met Dr. Clyde Tombaugh, the astronomer who discovered Pluto in 1930. He had retired from New Mexico State, but volunteered to mentor high school students in this special program. JESSI featured guest lectures from scientists from around the country, and exposed us to chemistry and physics for the first time.

    Meanwhile, Arizona State University took some of that federal money and started a computer programming class for high school students on Saturdays during the school year. So during my junior year I took the bus to and from Tempe every Saturday and got to play with an IBM 1620 computer. This was in 1963 so we learned FORTRAN II, and the computer was the size of a small lecture hall and used punch cards. My phone has more computing power than this thing did, but it was state-of-the-art at the time.

    Following my junior year in high school I participated in a National Science Foundation summer math seminar at Texas A&M University, once again on a scholarship. We studied calculus, group theory, and computer programming (once again FORTRAN II). Enough of this was review for me that I was able to go far beyond the classwork, as my algebra teacher had advised me to do two years earlier. There were thirty-two of us in the seminar, from five states. and we stayed in one of the dorms on campus (except for the one female student, who lived in town). I made good friends in the group, one of whom remains one of my best friends today.

    During my senior year I continued my math studies with the first calculus course and a computer programming course at Phoenix College. I earned 12 credits which I transferred to Michigan State when I went there on a full scholarship the next year. Needless to say, this scholarship was also government-funded, and I started just as they wanted me to as a math major. But along the way something changed, and although I eventually earned a PhD it was not in STEM as it was supposed to be. Enough of my colleagues, though, went that route, and the USA took the lead in space with the moon landing and have never relinquished it.

    

I Knew I Was Going to Lose the Trial, So I Changed the Rules

      When I was admitted to trial practice in the United States District Courts for the Southern District of Illinois in 1995,  I knew that I could be appointed to represent an indigent client in certain cases. Sure enough, four years later I was appointed to represent an inmate in an Illinois penitentiary who was suing the Director of the Illinois Department of Corrections, the Assistant Director, a former Warden, a former Assistant Warden, and five correctional officers over the conditions of his confinement. He had brought a civil suit in federal court pro se, meaning he was serving as his own attorney. The judge in the case believed, correctly in my opinion, that trying the case would be too complicated for an inmate without a high school education so he appointed me to carry the case forward. Win or lose I would collect no fees, but the Court would reimburse up to $2,000.00 of my out-of-pocket expenses. 

      My client was a convicted murderer in the seventeenth year of his fifty year sentence, and he had spent most of his time in prison studying the law. He served as an advisor to other inmates with legal issues, and frankly had drafted his complaint better than some attorneys would have. He alleged that certain correctional officers violated his constitutional rights by ignoring his known diabetes and served him food that violated his dietary restrictions; that they failed to provide him with his medications; that they served him his food cold and so scrambled on his plate as to make it inedible; that his mail was illegally withheld; and other similar minor indignities. The judge had already determined that seven of these counts were sufficiently meritorious to warrant a trial, while he dismissed three others. The Defendants had all filed their Answers, generally denying everything. At that point I entered the picture.

      The Defendants were represented by the Office of the Attorney General. I contacted them to see if we could work out a settlement, but received no reply. So I started to work up the case as I would any other case scheduled for trial. I sent out nine sets of interrogatories, questions that must be answered in writing and under oath within 30 days, one to each Defendant. They sent none for my client to answer. Once I received the generic replies, mostly stating that they had no specific information and again generally denying everything, I began scheduling depositions. This took a while, since I deposed all nine Defendants and a few other correctional officers who might have had relevant information but did not. I had to travel to several Illinois penitentiaries for the depositions, since the correctional officers had been reassigned all over the State. The places that impressed me the most were the super-max penitentiaries, at Menard and Tamms. Menard was an old-fashioned place like in a crime movie from the thirties or forties, while Tamms was a new prison built mostly underground. Menard was scary but familiar, but Tamms was terrifying. Every hallway had barred doors that were remotely operated by officers watching everything on computer monitors. There was not a window in the entire place. I was never happier to leave a place in my life. The Assistant Attorney General in charge of the case chose not to depose my client.

      I had received no information that was helpful to my client from any of the depositions. The next step in the process would normally be for the Defendants to file a motion for summary judgment. This motion argues that there is no dispute about the facts and all that is necessary to decide the case is a question of law. I expected one here but the Assistant Attorney General declined to file one. I'm only guessing, but I imagine he thought that much of the case was a question of "he said-she said" and the judge would deny the motion. Either that or he was desperate to get out of the office for a few days and a jury trial would be a welcome distraction. 

      So the case was set for a jury trial. All things considered the schedule had been somewhat expedited. Usually civil cases in federal court get postponed for years; criminal cases must have priority because of the "speedy trial rule": if a criminal defendant is not tried within a certain number of days the indictment is dismissed and cannot be reinstated. Consequently, most federal judges exist on a steady diet of guns and drugs; that is, there are so many federal gun cases and drug cases that the judges don't have time for anything else. But our case was being held in front of a Magistrate Judge, not a regular District Judge. A Magistrate Judge is sort of an assistant judge who is appointed by the regular judges in a District to take care of the overflow. Any party to a federal lawsuit may have his or her case heard by a District Judge, but it may take years. A Magistrate Judge has no such restrictions. So when we were asked if we would consent to a Magistrate Judge both the Assistant Attorney General and I said we would.

      The day before the jury trial we met with the judge for him to consider Motions in Limine and jury instructions. A Motion in Limine is a motion usually prior to the start of a trial that is heard by the judge outside the presence of the jury. It is often used to attempt to exclude certain evidence that might be too prejudicial. I asked the judge to rule that my client should appear before the jury in a suit and tie, not an orange jump suit. I asked that he not be handcuffed in front of the jury. I asked that no mention be made of his criminal history except that he was incarcerated after being convicted of a crime. The Magistrate Judge, somewhat to my surprise, granted all of my motions over the objections of the AAG. We then considered the jury instructions to be used. When all of the testimony is done and the parties have concluded their closing arguments, the judge instructs the jury as to the law that governs the case. The judge doesn't just make these up; the parties submit the jury instructions they wish the judge to use and the judge decides which to read to the jury if there are any differences. Normally there are differences, as you might imagine, and if the choice the judge makes does not comply with the law the losing party can win a new trial on appeal. In this case the judge chose all of my suggested jury instructions just as he had granted all of my motions in limine. I think he was doing his best to deprive me of any issues on appeal, but of course there is no way to prove that and it wouldn't do me any good even if I could. The United States Court of Appeals for the Seventh Circuit would never grant me a new trial if I lost because the judge gave me everything I asked for.

      The case was to be tried in East St. Louis, about a two hour drive each way, so I decided to stay in the area instead of driving back and forth. We were to start at 9:00 a.m on the first day with jury selection, so I started with an overnight after our jury instruction conference. Rather than staying in East St. Louis, which is not a safe city, I stayed about 15 minutes away. The hotel was very nice and had a good restaurant attached. I ate breakfast and dinner there for the four days I was away.

     After the jury instruction conference I met my client for the first time to prepare him for his testimony the next day. I suppose I should have gone to the penitentiary to visit him, but it would have been an additional lengthy trip and I was already spending too much time on the case, time for which I would never be compensated. He was a seemingly nice middle-aged man, and I had to remind myself that he was a vicious killer. Fortunately I am a trained actor and was able to conceal my fear from the jury.

      East St. Louis has a majority Black population, and it would have been very strange if some members of the jury pool were not Black. Several were, and I made it my mission to seat as many Black jurors as I could, on the theory that Black jurors would be more likely than white jurors to distrust the correctional system. Further, my client was Black and Black jurors might have a little more sympathy for his situation. I immediately discovered that the Assistant Attorney General had exactly the opposite idea. He tried to seat as many white jurors as possible.

      In federal court the Judge questions potential jurors and the attorneys decide whether to accept a particular juror or not. If there is a good reason to reject a juror, such as if the juror is a friend of one of the attorneys or admits to some form of bias, an attorney can reject a juror for cause. If there is no good reason, an attorney can use one of a limited number of peremptory challenges, That is, the attorney can refuse a juror for no cause. In this case we were seating nine jurors (instead of the usual 12 in State court) and each of us had nine peremptory challenges.

      When the first Black juror came under consideration I accepted her but the AAG tried to use a peremptory challenge. This was not at all what I wanted, and fortunately there was a rule that allowed me to challenge the AAG's use of a peremptory challenge. In Batson v. Virginia, 476 U.S. 79 (1986), the United States Supreme Court ruled that peremptory challenges may not be used to discriminate against and eliminate potential jurors on the basis of sex, race, ethnicity, or religion. Doing so violates the other party's right to Due Process of Law and Equal Protection under the Constitution of the United States. I immediately invoked Batson, asserting that the AAG could not articulate a non-discriminatory reason for excluding the juror. The Magistrate agreed, and the juror was seated. We finished seating the jury by noon on the first day, and we ended up with three Black jurors, two Hispanics, one Japanese American, and four Caucasians. I was moderately happy, although not all of my Batson challenges were effective. After three tries the AAG finally figured out what to say.

      At this point, before beginning my opening statement, I knew I could not win the case. There was no evidence aside from my client's unsubstantiated word that any of the things he had alleged had actually happened, let alone with the required ill intent. Knowing that, I was in for three more days of wasted time. While I was confident that I could fool the jury into thinking I believed in my case, I knew that would not be enough. I had to make them believe in my case, and that was not possible, notwithstanding their racial and cultural affinities with my client. So just for myself I changed the parameters of a successful outcome. I would be successful if I could get at least one of the seven counts through to the jury.

      At the close of the Plaintiff's case in a jury trial the defense almost always moves for a directed verdict in favor of the defense. Essentially this means that the Plaintiff has failed to make a prima facie case--that as a matter of law the Plaintiff has failed to prove one or more of the essential elements of the Plaintiff's case. The judge makes this determination rather than the jury. All parties know what the essential elements of the case are; these are included in the jury instructions decided upon before the trial begins. Here I had seven counts against nine Defendants. I was worried that none of the counts or Defendants would survive a Motion for Directed Verdict. If even one survived the jury would decide the case, not the judge, and a verdict of liability would at least be a possibility, however remote.

      Against this backdrop I began my case after lunch. I made my opening statement, laying out for the jury what I expected the evidence to show. These can be tricky, because you don't want to overpromise, but it also has to be persuasive. Mine was, I fear, rather bland. The AAG, however, erred in the opposite direction. He promised, without much evidence, that he would show that the Plaintiff's case was a complete fabrication, and that none of these fine gentlemen had ever done anything wrong. I was moderately happy; I was going to be able to show that at least five of them had been disciplined for mistreating prisoners under their care. None of them had been disciplined for mistreating my client, but I could point out to the jury that they could not believe everything the AAG said. We were off to a good start.

      Following opening statements my client took the stand. I walked him through each of the counts and each of the Defendants, and he told the jury what he claimed they all did. Part of the problem I had was that even if everything he said was true some of his allegations did not amount to a violation of his civil rights. A further problem I had was with the Warden, Assistant Warden, Director, and Assistant Director. All we had on them was that they had dismissed my client's appeals without proper investigation. They all had so much discretion in such a situation that it was virtually impossible to get the counts involving them through to the jury. So I used most of my time with my client on the stand focusing on the corrections officers. I completed the direct examination of my client that afternoon, and the judge adjourned until the next morning.

      First thing in the morning the AAG undertook the cross examination of my client. Without ever having deposed him the AAG did not necessarily know what he would say in response to questions. This could have worked to our advantage but the AAG was an experienced litigator who knew how to get what he wanted from a witness. Once or twice he tried to go outside the areas which I had covered on direct examination, but a quick objection from me for "beyond the scope of direct" got him back on track. He seemed to focus on the counts and Defendants I was most worried about, which reinforced my concerns and demonstrated pretty clearly that we had the same view of the case.

      The AAG finished with my client at about 11:00, and I began to examine each of the Defendants. I was able to use leading rather than open-ended questions with them as Defendants, which made it easier to elicit the testimony I wanted. Two or three of them tried to alter their testimony from what they said in their depositions, but I was able to use a technique called "impeachment" to get them to say what I wanted. I essentially read them their prior testimony from their depositions, asked them if they remembered it, and reminded them that they were under oath both then and now. The clear implication was that either they were lying then or they were lying now. It did not go unnoticed by the jury, or also by the judge as it turned out. 

      Since there were nine Defendants I did not get through them all that day. I finished with the last one on the morning of the third day and rested my case before noon. The AAG this time did not disappoint, and outside the presence of the jury he filed his Motion for Directed Verdict as to all Defendants and all counts. We argued the motion heatedly and at length, and the judge took the matter under advisement, promising a ruling after lunch. He apparently used at least some of the time to do some quick legal research, because after lunch he presented us with a written order granting the Motion in part and denying it in part. The Defendants and the counts I was most worried about were dismissed from the case but the correctional officers and the counts pertaining to them would stay in and go to the jury. I had made my prima facie case.

      The AAG put on his case with the remaining Defendants during the afternoon of the third day. He recalled the five correctional officers and asked them questions outside the scope of what I had asked them previously. My cross examinations were brief, and mostly reiterated points I had made earlier. We finished with the witnesses by the close of business. The next day we would make our Closing Arguments, the judge would instruct the jury, and the jury would deliberate.

      I like to structure my Closing Argument around the jury instructions. After some general statements I say something like, "The judge is going to instruct you that . . . " and then I would read one of the jury instructions verbatim. Sometimes I would even have the instructions printed out and blown up for the jury to see. I then explained how the evidence supports the view I want them to take. It's probably silly but I take the view that telling them what the jury instructions are going to be and then to be proven right when the judge reads them the exact same instructions bolsters my credibility. Since the Plaintiff goes first in Closing Argument I get to explain how I've met the burden of proof (in civil cases, proof that something is likely more true than not) before the defense tries to tell them I have not met that burden. Additionally, Plaintiff gets a rebuttal argument after the defense finishes its argument. Plaintiff thus gets the first shot at the jury and the last shot at the jury. This is to make up for the tremendous disadvantage the Plaintiff is under having to carry the burden.

      We finished Closing Arguments at about 10:30, the judge instructed the jury, and the jury retired to deliberate at about 11:00. I expected them back with a verdict before noon, but they sent word to the judge that they wanted more time. Even though I knew better this got me excited; the longer they stayed out the greater the possibility for a Plaintiff's verdict. After lunch they stayed out for another hour and then came in with a verdict for Defendants. Turns out they just wanted to get a free lunch. I asked the judge to poll the jury, and all nine (even the three Black jurors) reported that they voted for the defense. The judge then did something almost unprecedented in my experience: he publicly praised me in front of the jury, telling them that they had been privileged to see an attorney in action who really knew what he was doing. My client was unimpressed, though, and I thought I detected a smirk on the face of the AAG. I guess it depends on your point of view.

      After the jury was dismissed, the judge surprised me again. He could not pay any of my fees for a case I was appointed to, but he would agree to pay all of my expenses, not just the first $2,000.00. This was a pretty big deal for my firm, since I had spent over $6,000.00 preparing the case.

      I never tried another case before this judge, and I never saw my client again. As far as I know he's still serving his sentence. I did come up against the AAG again, though, when our firm sued the State of Illinois for breach of contract. You can find the story of that case, as well as seven other cases of mine that I find particularly memorable, in my legal memoir, For Three Weeks I Owned the University of Illinois, available on Amazon.com.