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Illinois Bar Journal

The Magazine of Illinois Lawyers

May 2011Volume 99Number 5Page 238

May 2011 Illinois Bar Journal Cover Image

Practice of Law / Young Lawyers

Experience by Appointment

By
Helen W. Gunnarsson

There isn't much money in it. Often there isn't any. But serving as appointed counsel is a way to gain invaluable courtroom experience and remind yourself why you went to law school in the first place.

Newly minted lawyers in private practice may find courtroom experience difficult to come by. Those in firms may spend much of their time reviewing documents and answering tedious discovery requests. Those who have hung out their shingles as solo practitioners may spend lonely days waiting and wishing for the telephone to ring. The clients who do arrive may not have matters in court. Or they may prefer settling their cases to litigating them to a final resolution.

Even more experienced lawyers in firms with busy litigation practices may find trial experience, particularly jury trial experience, hard to get. Most cases end up settling, whether before trial or before even filing. Where litigants are reluctant to yield before trial, courts will often apply pressure to do so in the form of mandatory mediation, also known as "reality therapy."

But courts also provide opportunities for lawyers to gain valuable litigation experience, including jury trial experience, by serving as appointed counsel. Lawyers interviewed for this article reported rich and satisfying experiences serving as guardians ad litem in state court matters, including probate cases and matters involving child custody and visitation, and as appointed defense counsel in post-conviction criminal matters. Opportunities are also available in federal court (see sidebar for a description of some of those openings).

GAL appointments: needy people, serious matters

"Serving as a GAL is an excellent opportunity for young lawyers," says Urbana lawyer Tim Johnston. "Helping a desperately needy person with a very real, grave matter was a real visceral experience for me."

After a stint as an assistant state's attorney in Lake County and a year in private practice, Johnston moved to Urbana, where his wife was in school. "I needed a job, and one suggestion I got was to talk to the Champaign County judges and get on the GAL list. I met with the judges, told them about my experience, and told them I was more than happy to serve as a GAL. The process was quite informal."

Johnston was appointed to serve as a GAL for a man who was dying of AIDS and suffering from some cognitive deficits and other associated conditions. "He was having trouble with all of the activities of everyday life, including taking his medicines and eating properly. After he was found lying on his floor in bad shape, he was admitted to one of the local hospitals. After a week or so, the hospital wanted to put him into palliative care," i.e., discontinuing retroviral drugs and all other medications except for those that would alleviate his pain. "The court appointed a GAL, which was me."

Johnston then met with the man to discuss his situation and the court proceeding. "One of the medications was affecting his mental state, and he had asked to be taken off it before talking with me. We discussed everything, and he understood what was going on. I talked to his doctors and other relevant people, reviewed his medical records, and wrote up my opinion for the judge. On the day of the hearing, he insisted on coming to the courtroom and telling the judge himself that he wanted the medicines that were designed to prolong his life stopped."

Though the man died, as was inevitable, Johnston says the experience was good. "We had a good process in which we had solid input from everybody and everyone was protected. The judge made the decision, but everyone agreed, including the subject."

Now that his schedule has filled up, Johnston no longer serves as a GAL. "I got a letter from the judge asking me to serve as a GAL and told him I couldn't do it anymore. He was very understanding."

But in addition to the personal satisfaction he derived from the case described, he says his service has been helpful in the personal injury matters he now handles for his firm. Serving as a GAL taught him about probate law and the Guardianship Act, a statute with which he had been unfamiliar. "We have to deal with different aspects of probate law whenever we have a wrongful death or a minor in a case. There's no heavy lifting, but it's nice having a bit of background in that area."

Springfield lawyer Alison Hayden has also found her experiences as appointed GAL interesting and rewarding. In one matter, an insurance coverage dispute that involved an auto accident, Hayden was appointed GAL for an injured minor. "I needed to be sure that he would be adequately compensated for his injuries, which, happily, were not severe."

In another matter, Hayden was appointed as GAL for a young woman who was disabled. Because the woman had reached the age of majority, the institution where she lived would not allow her to remain there. The woman's father, who was her guardian, proposed to transfer her to an institution for disabled adults that could accommodate her severe physical and medical needs. This home was located further from the woman's mother's home, whereupon the mother moved to revoke the guardianship and asked that she be allowed to care for the woman in her home.

"I interviewed everyone and filed a report with a recommendation based on my interviews. It opened my eyes to the fact that there's a lack of institutional housing for children and adults in Illinois."

Hayden has also served as GAL in a number of adoptions. Contrasting her day-to-day environmental law practice with the cases in which she's served as a GAL, Hayden says she enjoyed being able to help people in such personal matters and was pleased to acquire hands-on experience with clients and in court early in her legal career.

Get the required training

As Hayden's and Johnston's experiences show, though the individual circuits have different local rules and practices, many require little or no experience of attorneys who wish to be appointed as GALs in probate matters. Champaign lawyer Mark Palmer says his application to serve as a GAL in adoption or probate matters consisted only of a letter to the judges who preside over those cases asking to be added to the list of attorneys available for appointment, though he also let them know that he'd completed the 10-hour course "Education for Attorneys in Child Custody Matters" recommended by Illinois Supreme Court Rule 906.

SCR 906 governs attorney qualifications and educational requirements for serving in child custody and visitation matters, directing the courts to develop individual procedures for appointing lawyers to represent children as GALs or in other capacities in those matters. The rule contains recommendations for minimum requirements for appointment, including 10 hours of approved continuing legal education courses in certain subjects relating to children and families.

Lawyers wishing to serve as appointed counsel in matters addressed by SCR 906 might have to demonstrate that they have met those requirements to be considered for appointment. In Cook County, for example, lawyers must fill out an application detailing their experience and qualifications and appear before a screening committee for an interview before being considered for inclusion on a list approved by the chief judge.

With nearly 10 years of experience and a full private caseload in his Springfield law firm, Roland (Rob) Cross continues to serve regularly as appointed counsel, not only as a GAL for minors and disabled adults in probate matters, but also as a child representative in custody and visitation disputes, as counsel for parents in abuse and neglect cases, and as GAL and counsel for juvenile offenders.

Cross certainly doesn't serve in those capacities for the money. As a GAL in probate matters, he says, payment depends upon the case. "In general, you are usually setting a flat fee for your work unless a trial or considerable investigation is involved." In cases in which he serves as child representative, he requests a retainer at the outset but charges a significantly lower rate than he bills for his firm. Court appointed lawyers in Sangamon County juvenile cases are paid at the rate set by the public defender's office.

In any type of case, "It is not strange to get a call from a judge asking if you would be willing to volunteer your time to assist, knowing at the outset that you will probably not be paid your standard hourly rate or any rate at all."

Nor does Cross find that warm and fuzzy feelings are guaranteed. In one case, he served as child representative for several children with conflicting parental loyalties and agendas that would vary from day to day. The case included cross claims of sexual abuse to the children by a parent and a step-parent, cross-accusations of parental drug use where the drugs were offered to the children, and a text message with an attached nude photograph of a minor. "Lots of fun, right?"

Cross had to petition for an order of protection on behalf of some of the children against one parent and seek injunctive relief on behalf of the children against the other parent. For around 200 hours of time, Cross says he ended up getting paid around $3,000.

Apologizing for sounding "corny," Cross says, "I take the appointments because I honestly feel that the judges with whom I work need the assistance, and I also believe that lawyers have a responsibility to strengthen the system that we practice in."

In cases involving children, "I think it's so necessary for someone to come in who's not worried about the car or child support to represent kids where they need it. When you have a child rep in a case, the case is completely different. Eve­rybody, even the lawyers, behaves differently. It's as if you had a hall monitor in the case."

Postconviction petitions: "[y]ou get to see where they're coming from"

Springfield lawyer Brendan Harris has gained considerable experience in criminal law as appointed counsel on postconviction petitions. Having worked during law school as an extern and volunteer with the office of the public defender in Cook County, and having handled some criminal matters on his own during his first three years as an attorney, Harris says he had enough of a comfort level to say "yes" when an assistant state's attorney asked him if he was interested in handling postconviction matters.

"They're not very popular among attorneys because you hardly ever win them," he said. "And the hourly rate is only $60, set by the county. Nobody in Sangamon County does them full time."

Harris's cases come to him after convicted defendants have filed their own postconviction petitions pursuant to the Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. As long as a petition is not frivolous or patently without merit, the court will appoint counsel for the defendant.

Once appointed, a lawyer will invariably file an amended petition. "People with very lengthy prison sentences tend to be very involved with their cases. They have a lot of theories about why their case went wrong and how their lawyer messed up. Often the pro se petitions will have 20 or 30 arguments, which is not realistic." And the clients can be very demanding, he says. "They tend to receive a lot of 'help' from other people in prison who don't know what they're talking about."

Despite the odds, Harris was successful on his very first case, obtaining a sentence reduction for his client. To prepare, Harris first conferred with the Sangamon County assistant state's attorney who handles post-conviction matters, other local defense attorneys who were experienced as appointed post-conviction counsel, and an assistant at the Office of the State Appellate Defender. All, he says, were kind enough to forward him past petitions and briefs to review and also directed him to other helpful resources.

"The OSAD has been helpful every time I've contacted them about a case." That office has often already worked on Harris's client's appeal, may work on it again in the future, and likely has already researched and briefed many of the arguments he'll be making, so Harris finds it a good starting point for any case.

As in all cases Harris has handled since then, he went to the state prison to meet with his client and read the trial transcripts and other parts of the record. "All of my clients so far have been in prison."

Harris thinks the experience of traveling to a prison to meet with a client is a valuable one for lawyers. "There's no substitute for sitting down for an hour or two and meeting them in person. You get to see where they're coming from. They have a lot of complaints, some of which are legitimate."

He says he usually meets with his clients twice, once at the outset of his representation and again when he's completing his amended petition. He also usually meets with a family member who's knowledgeable about his client's case, as long as his client approves.

One practical issue with representing prisoners is the lack of immediacy in communication, Harris says. Telephone calls and visits must be scheduled in advance, and each institution has different rules. Of necessity, Harris uses snail mail with his prisoner clients more frequently than with clients on the outside.

Handling postconviction petitions, he says, has made him a better lawyer. "It's a really good way to learn about criminal law. I've become more knowledgeable about types of cases that I haven't yet handled personally."

He's gained valuable courtroom tips from examining trial counsel's performance, too. "Most cases include an ineffective assistance of counsel claim. Reading the trial transcripts and records helps me learn what common mistakes lawyers make so I can avoid them. It also makes me aware of when lawyers do a great job at trial, so I can learn from their strategies."

Harris says he's not only gotten great experience from handling post-conviction cases but also has found the experience personally rewarding. "The post-conviction proceeding is extremely important in my clients' lives. This is their last shot at some freedom, or a reduced sentence, or a new trial."

All of the lawyers interviewed recommend that lawyers volunteer their services to courts, whether for a reduced fee or no fee at all. Says Mark Palmer, "I became a lawyer to help people. I try not to lose sight of making sure I enjoy every bit of my job. That involves handling a diverse calendar of legal matters for people from all different walks of life."

Helen W. Gunnarsson, a lawyer in Highland Park, is an Illinois Bar Journal contributing writer.

Volunteering: Making a federal case of it

Volunteering for appointment in federal court cases can give you valuable trial experience and a shot at a paying gig.

Whether justified or not, many lawyers consider federal court big time compared with state court. And opportunities exist for eager but inexperienced lawyers to gain experience as appointed counsel there just as in state court.

Criminal Justice Act panel attorneys

28 USC section1915(e) authorizes the United States district courts to request counsel to represent indigent litigants in non-frivolous actions. One significant and apparently under­utilized opportunity for experience is to serve as a panel attorney under the Criminal Justice Act (CJA), 18 USC 3006A.

Appointment generally occurs when the federal defender has a conflict, in, for example, a multi-defendant case. Each of Illinois's three U.S. district courts has its own rules and practices regarding appointments. Applications are available on the courts' websites or from the federal defender's office.

Champaign lawyer Mark Palmer says, "Serving as appointed counsel in federal court on the CJA panel offered me immediate courtroom time as a starting attorney in private practice, while some of my peers fresh out of law school were parked at their desks all day."

Eager to gain federal courtroom experience, Palmer spoke with an assistant in the office of the federal defender in Urbana. "He said I could sit as a second chair in a trial with him that involved the transfer of a large quantity of cocaine from Texas to Chicago and carried a mandatory life sentence. I sat as second chair and took voluminous notes."

The case ended with a hung jury, unusual in the Central District. "So we set a date to try it again. On the morning of the trial, the federal defender said, 'Why don't you do some of the trial this time?' My initial reaction was panic. I hadn't expected to be stepping in front of the jury that morning!"

But Palmer's notes stood him in good stead, and he rose to the challenge. "I got to cross about half of the government's witnesses and did the closing argument. It was nice to have the chance to shine."

Urbana lawyer J. Steven Beckett, who is Director of Trial Advocacy for the University of Illinois College of Law in addition to his firm practice, serves as the CJA panel representative for the Central District of Illinois. Beckett says the court welcomes even inexperienced lawyers as volunteers.

"We try to expand the number of attorneys on the panel by working with the judges to appoint inexperienced lawyers to sit as second chairs on two jury trials. After that, they're eligible for appointment as fully fledged panel attorneys."

Beckett says lawyers wishing to volunteer should fill out the application that's available on the court's website at http://www.ilcd.uscourts.gov/forms.htm. After turning it in, lawyers may expect to receive a call from a judge offering them the opportunity to be paired on a case with a lawyer from the federal defender's office. Second chair lawyers are almost never paid for their time, but once they become panel members, the statutory rate of pay is $125 per hour, plus expenses.

Beckett urges younger and inexperienced lawyers to volunteer. "The challenge is great, because the odds are against you. The cases are complex and the court facilities are phenomenal, using all the latest technology. It's a great experience." The Federal Public Defender provides copious information and resources, including training, for those who serve as panel attorneys under the CJA.

"Don't be shy"

Lawyers who are members of the federal district bars may also be appointed to serve as counsel for civil litigants, generally in employment matters or prisoner litigation. In the northern district, availability for appointment is a condition of membership in the trial bar and, according to Chief Judge James Holderman, will come up around once a decade for each lawyer. Though judges in that district will not appoint inexperienced lawyers to litigate cases, lawyers lacking experience may volunteer to be appointed to represent otherwise unrepresented litigants at settlement conferences conducted by district judges or magistrate judges.

Judges in the central and southern districts say they welcome volunteer lawyers with any or even no experience. "Don't be shy," says Magistrate Judge David Bernthal of the central district, who says judges will work with lawyers so as not to appoint them to cases they're uncomfortable handling. "Send us a letter and I'm sure we can make this a win-win situation."

Holderman and his counterpart at Illinois's southern district, Chief Judge David Herndon, also point out that lawyers can receive free CLE credits for participating in volunteer training. "We've established a program of seminars and a mentoring program to assist appointed counsel if they have any questions or need any assistance," says Herndon. That mentoring includes a court-compensated liaison whom appointed attorneys may consult at will.

"We think volunteering is ideal for new law grads or lawyers reentering the work force," he says. "With the mentoring and supervision, the client is not at risk. We have so many pro se litigants who are in need of legal assistance." Adds Bernthal, "I'd much rather deal with a lawyer than a pro se." Both Herndon and Bernthal emphasize that lawyers in their districts are free to decline appointments.

Guidelines for the administration of the CJA are available on the website of the federal courts at http://www.uscourts.gov/FederalCourts/AppointmentOfCounsel/CJAGuidelinesForms.aspx. Whether in CJA or civil matters, court-appointed lawyers are responsible for maintaining their own professional liability insurance.

- Helen W. Gunnarsson


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