MCGUIRE'S II
Certified Shorthand Reporters
(312) 346-0911
ORIGINAL
1
1
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
2
3 PEOPLE OF THE STATE OF ILLINOIS )
4
by
of the
LISA
State
MADIGAN,
of Illinois,Attorney
General
5
Complainant,
6
vs .
No . PCB 96-98
7
SKOKIE VALLEY ASPHALT CO ., INC .,
an Illinois corporation, EDWIN L .)
8 FREDERICK, JR ., Individually and )
as owner and president of SKOKIE )
9 VALLEY ASPHALT CO ., INC ., and
RICHARD FREDERICK, Individually
10 and as owner and vice-president
of SKOKIE VALLEY ASPHALT CO .,
11 INC .,
Respondents .
)
12
13
The deposition of MITCHELL COHEN, called
14
for examination, taken pursuant to the provisions of
15 the Code of Civil Procedure and the Rules of the
16 Supreme Court of the State of Illinois pertaining to
17 the taking of depositions for the purpose of
18 discovery taken before KELLY A . BRICHETTO, CSR No .
19 84-3252, State of Illinois, Certified Shorthand
20 Reporter of said state, at 5487 North Milwaukee
21
Avenue, Chicago, Illinois, on the 14th day of
22 November, A.D
. 2006, at 2 :00 p .m .
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McGUIRE'S II
Certified
Shorthand Reporters
(312) 346-0911
2
APPEARANCES :
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
ATTORNEY GENERAL LISA MADIGAN, by
MR . MICHAEL C . PARTEE
188 West Randolph Street
Chicago, Illinois 60601
(312) 814-2069
on behalf of the Complainant
;
MR . MICHAEL B . JAWGIEL
5487 North Milwaukee Avenue
Chicago, Illinois 60630
(773) 774-0814
on behalf of the Respondents ;
MR . DAVID S . O'NEILL
5487 North Milwaukee Avenue
Chicago, Illinois 60630
(773) 792-1333
on behalf of the Respondents .
REPORTED BY
: KELLY A . BRICHETTO, CSR NO . 84-3252
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McGUIRE'S II
Certified Shorthand Reporters
(312) 346-0911
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(Witness sworn
.)
MR . JAWGIEL : State your full name for the
record, please .
THE WITNESS
: Mitchell Lee Cohen .
MR . JAWGIEL : Could you spell it, last name
only?
THE WITNESS : C-O-H-E-N .
MR
. JAWGIEL
: Just because there's different
spellings .
Let the record reflect that this is the
discovery deposition of Mitchell L . Cohen taken
pursuant to notice on this date of November 14th,
2006 .
Mitch, you've been to and you've taken
numerous depositions
. I'm not going to give you the
admonishments . You know what they are, I assume?
THE WITNESS : I think so .
MR . JAWGIEL : The only thing is if you don't
understand a question that I ask, don't answer it .
Just ask me to repeat it, rephrase it, whatever you
need to do until you have a full understanding of
what I'm asking
. If you do answer it, it will be
assumed that you fully understood the question .
Okay?
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McGUIRE'S
II
Certified Shorthand Reporters
(312) 346-0911
4
THE WITNESS : Yes .
WHEREUPON :
M I T C H E L L
C O H E N,
called as a witness herein, having been first duly
sworn, was examined and testified as follows :
E X A M I N A T I O N
by Mr
. Jawgiel
Q .
I have a copy of your curriculum vitae .
I'm going to mark it as Deposition Exhibit Number 1
.
I'll show it to you, of course
. What I'm going to
ask you : Is this up to date or are there any
additions or deletions you'd like to make on this
particular document?
A .
It is not up to date . I've received two
promotions in the office of the Attorney General
.
Though I still work at the Office of the Attorney
General
.
Q .
What's your current position with the
Office of the Attorney General?
A .
I'm chief of the Environmental Crimes
Bureau .
Q .
What are the duties and responsibilities
of the chief of the Environmental Crimes Bureau?
A .
We investigate and prosecute
McGUIRE'S II
Certified Shorthand Reporters
(312) 346-0911
5
1 environmental
crimes .
2
Q .
According to this,
you've
been with the
3 Attorney General's office since
May of 2001?
4
A .
Correct
.
5
Q .
Was your only time
in private practice
6 with William Donovan & Associates in Tulsa,
7 Oklahoma?
8
A .
No .
9
Q .
When was the other --
oh, I see
Michael
10 Taylor?
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A .
Correct .
12
Q .
You were involved in
private practice in
13
Tulsa, Oklahoma since 1987
; is that right?
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A .
No . I started with
Brune, Pezold, Richey
15
& Lewis in 1989 .
16
Q . '89, okay .
17
A .
That was private practice .
18
Q . Now, with Brune,
Pezold and the other law
19 firms that you were involved in private
practice did
20
you have to keep time sheets?
21
A . The only firm that I
worked at where I
22 had to keep, I wouldn't say time sheets
but billable
23 hours
24
Q .
Okay .
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McGUIRE'S II
Certified Shorthand Reporters
(312) 346-0911
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A .
- was Brune,
Pezold, Richey & Lewis .
Q .
What differentiates time sheets
from
billable
hours in your understanding of it?
A . Time sheets is the way we kept track of
our time during the day, and some of that time was
billable hours to clients .
Q .
So time sheets -- was it Donovan's office
that you did time sheets?
A .
No, Brune, Pezold, Richey & Lewis .
Q .
Time sheets at Brune, Pezold would
require you to keep track of when you went to lunch?
A .
I wouldn't say it that way, but I kept
track of other things besides billable hours
. If I
was doing administrative work that I had to do,
reading my mail, that type of thing, I would keep
track of that and show that that was time to the
office as opposed to billable hours to a client .
Q .
Fair enough . Did you attend any seminars
or receive any training in how to keep time sheets
in your career?
A .
No . No .
Q .
Are you familiar with the ABA guidelines
with respect to reporting attorney's time?
A .
I'm not
.
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McGUIRE'S II
Certified Shorthand Reporters
(312) 346-0911
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Q .
Are you familiar with any attorney
association's guidelines with respect to attorneys
reporting their time?
A .
No .
Q .
Are you familiar with the ethical codes
of the Illinois Supreme Court that apply to
attorneys recording their time?
A .
I hate to say no to that . I don't, I
cannot recall specific ethical guidelines related to
billable hours .
Q . Fair enough . Now during the time that
you were with the Cook County State's Attorney's
Office were you required to keep any sort of time
sheets?
A .
We did not keep time sheets . There was a
period of time where we punched in and out .
Q .
Then the Kane County State's Attorney's
Office, did you keep time sheets at all?
A .
No .
Q .
Then at the Attorney General's Office did
you keep time sheets?
MR
. PARTEE : In any case?
MR . JAWGIEL : Yes .
THE WITNESS : A
. I mean I keep track of my
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McGUIRE'S II
Certified Shorthand Reporters
(312)
346-0911
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time for certain
cases, but
I
don't keep all of my
time recorded .
MR . JAWGIEL : Q .
Now, what would
differentiate the situation where you'd keep your
time as opposed to where you wouldn't keep your time
while you were employed or still employed at the
Attorney General's Office?
A .
When I was in the, practicing in the
Civil Bureau, when I say that I mean the Civil
Environmental Bureau, there were certain cases where
attorney fees were possible . Section 42(f) of the
Illinois Environmental Protection Act sort of
describes what type of cases those were, so if I
had, if I was working on a case where I saw those
conditions, then I kept track of my time .
Q .
All right . You would know right from the
inception of filing the complaint whether or not you
would be seeking reimbursement of attorney's time in
a case, any particular case because you would know
what sort of allegations you were bringing, wouldn't
that be a fair statement?
A .
It's a fair statement to say that I would
know that that might be the type of charge or the
facts of the case where I would keep track of time .
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McGUIRE'S II
Certified
Shorthand Reporters
(312) 346-0911
9
Q .
Now
in the Skokie valley case,
and that's
mainly what
we're here for, so if I
refer to the
case or anything along
those lines, I'm referring
to
the Skokie Valley
case unless I qualify it
differently during the course of the deposition
. Is
that understood?
A .
Yes .
Q .
Now, in the Skokie Valley case did you
know from the time that the initial complaint was
filed in the case that you would be seeking
reimbursement of attorney's time?
A .
No .
Q . When did you first become aware that you
would be seeking attorney's time, reimbursement for
attorney's time in the Skokie Valley case?
A .
The case was not originally assigned to
me . When the other attorney met with me the first
time and we discussed the facts of the case and what
was going on in the case I learned then that there
were allegations of repeated violations, so I knew
that was the type of case where I would keep track
of my hours .
Q .
Now who was the other attorney?
A .
I think the attorney that I got it from
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McGUIRE'S II
Certified Shorthand Reporters
(312)
346-0911
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was Kelly Cartwright .
Q .
When did
you become aware that you would
start to keep track of your time in the Skokie
Valley case?
A .
I'm not sure of the exact date, but it
was sometime in the middle of the litigation for the
Skokie Valley case .
Q .
after you met with the other attorney, I forget her
name, Kelly?
A .
Kelly Cartwright
. Yeah, it was right at
that time .
Q .
Were the Fredericks a respondent in the
case at the time you met with Kelly?
A .
No .
Q .
Now did you start keeping records of your
time contemporaneous to the events that you actually
participated in from the time that you met with
Kelly and knew that you were going to seek
reimbursement?
A .
Yes .
Q .
Was it within a reasonable period of time
Now, let's take a step back . When you
started keeping your time in the Skokie Valley case
did the Attorney General's office have any policies
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MCGUIRE'S II
Certified Shorthand Reporters
(312) 346-0911
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and procedures with respect to how the attorneys
were to record their time in a case that you were
going to seek attorney's fees?
A .
Not that I'm aware of .
Q .
Currently does the Attorney General's
Office have any sort of guidelines that it uses in
informing its attorneys how to keep track of their
time in a case that you're seeking reimbursement of
attorney's fees?
A .
Not that I'm aware of .
Q .
How did you keep track of your time in
the Skokie Valley case?
A .
We have a -- well, at the time when I
started on the Skokie Valley case our computer
system used a program called Group Wise . I recall
that it's a calendar program . It may do other
things but I don't remember
. I would document my
time on my calendar Group Wise .
Q .
Now when you would document your time in
the Skokie Valley case, would you give the best
description you possibly could give with respect to
your tasks that you did at that time?
A .
I wouldn't say that, no .
Q .
Why not?
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McGUIRE'S II
Certified Shorthand Reporters
(312)
346-0911
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did .
A .
I was just giving a summary of what I
Q .
Well, why wouldn't you give enough
detail
to describe what you actually did at that time as
opposed to a summary?
A .
Probably to save time .
Q .
I see . Any other reason?
A .
None that I can think
of
.
Q .
Have you reviewed any documents before
your deposition today?
A .
Yes .
Q .
What did you review?
A .
I looked at the docket
sheet for
the
case . I looked at the closing rebuttal argument,
the
section where
we detailed
the request for
attorney fees . I looked at the fee
petition, and
I
looked at the, I should say the text of the fee
petition,
and I looked at the Excel spreadsheet .
Q .
Did you bring any of those documents with
you today?
A .
I did not .
Q .
Why not?
A .
I didn't think
I'd need them .
Q .
Did you
bring your notice of deposition
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McGUIRE'S II
Certified Shorthand Reporters
(312) 346-0911
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with you?
A .
I
did not .
Q .
Your
notice of deposition requests
that
you bring all
documents in the case . Did
your
attorney give you a copy of your notice of
deposition?
A .
He did not . I didn't realize that
.
MR . PARTEE : I think that you served a copy on
him, number one
. Number two, everything you've
mentioned has been disclosed in discovery
.
MR . JAWGIEL : But I want to see the actual
documents he reviewed . I don't necessarily want to
see what you disclosed in discovery . I want to know
what he actually looked at, whether there were notes
in there, whether he made notes on them . All those
things are very pertinent to my cross-examination of
him in this interrogation, not that it's an
interrogation by any stretch of the imagination, but
it's certainly prejudicial to my ability to ask this
witness questions with respect to his impression of
those documents, the actual documents he reviewed to
confirm that those documents are documents we have,
and all these things certainly prejudice our ability
to proceed forward today .
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McGUIRE'S II
Certified Shorthand Reporters
(312) 346-0911
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MR . PARTEE : You can ask
him those questions .
MR . JAWGIEL
: No, I don't need to ask him
those questions
. The notice was very clear
what he
was
supposed to
do,
and he didn't comply .
MR . PARTEE : Well, you have all
of the
documents
from discovery, and you can ask him those
questions today should you want to . I don't
see any
prejudice .
MR
.
JAWGIEL : We are going to reserve our
right to call you back . We're going to ask that you
produce
those
documents to us in the condition, in
the same condition as they existed after you
reviewed them . If you made any marks on them, we
want the marks . You might have put in there Mike is
a dunce . I don't care . I want everything that you
reviewed
sent to us, and we reserve the right to
call you back and ask you questions if we deem
necessary .
Obviously your
counsel certainly can
object and this could be another issue . It's
our
position you did not
comply with our notice .
Q . Although you didn't have,
apparently
you didn't see the notice or did you see the
notice?
A .
I believe I did
see it in my box and just
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McGUIRE'S II
Certified Shorthand Reporters
(312) 346-0911
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brought it over to Mr . Partee .
Q . So you saw it, you brought it over to
Mr . Partee who is the attorney handling the case
currently but you didn't review it?
A .
Correct
.
Q .
Fair enough .
MR . PARTEE
: Well, I do want to object for the
record to your recalling him as a witness
.
MR . JAWGIEL
: That's understandable . You can
object .
MR . PARTEE : If he made any notes, that would
be privileged . If I made any notes that he saw,
arguably that would be privileged
.
MR
. JAWGIEL : Q . Is he your attorney in this
case?
MR . PARTEE : Yes .
MR
. JAWGIEL : Q . Is Mr . Partee your attorney?
MR . PARTEE : I do represent Mitch in this
case .
THE WITNESS : A . Yes .
MR . JAWGIEL
: Fair enough . You certainly can
bring a 201(n) log outlining what documents that you
believe are privileged and why they're privileged
and that can be brought up before the Board .
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McGUIRE'S II
Certified
Shorthand Reporters
(312) 346-0911
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MR . PARTEE : No, what I'm telling
you --
MR . JAWGIEL : The bottom line is
he was
required by the notice to bring all
documents that
he reviewed, and he did not bring
those .
Certainly
you could have brought the
documents and at some point in time said these
documents
we're
not going
to produce because he has
made a mark on them that I believe
to be privileged
and we
could
have discussed that, but we don't have
that in front of us to discuss . The condition of
those documents are
not in
front of
us now, and
certainly we can't go back retrospectively, and you
may have made marks on it after this deposition that
you will now claim are privileged and, therefore,
you have prejudiced us in bringing our case .
THE WITNESS : I understand what you're saying
.
I can -
MR . PARTEE : I think we should talk about --
MR . JAWGIEL
: My argument is with your
attorney .
MR . PARTEE : -- how you would be
prejudiced .
MR . JAWGIEL : Not with you
MR . PARTEE
: How could you be prejudiced?
MR
. JAWGIEL : How can I be prejudiced by it?
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McGUIRE'S II
Certified
Shorthand Reporters
(312) 346-0911
17
MR .
PARTEE :
Let me finish .
He hasn't
reviewed anything
that you don't
have .
MR . JAWGIEL :
Mr . Partee, I
have three
hours .
I'm not spending
time talking
to you about
it .
MR . PARTEE : It would
be helpful if
we
MR .
JAWGIEL :
You've made your
objection .
This
is not helpful .
MR .
PARTEE :
Fine, if you don't
want to talk
about it --
MR . JAWGIEL :
Not on the
record and not
during
my deposition
.
MR . PARTEE
: Here is the
problem . You won't
call me pursuant
to 201(k) . I've written
both of
you guys
countless times . You
refuse to return the
letters .
MR . JAWGIEL : Don't
grandstand on my
transcript . You
are wasting my time, and I
will go
beyond three hours if you
continue to do this .
MR .
PARTEE : If you want to defer
the
discussion so
that you don't have to call
me back or
refuse to, I want that on the
record .
MR . JAWGIEL : Mr . Partee, I have never
refused
to call you
back .
Now that being
said, I'm going to
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McGUIRE'S II
Certified Shorthand Reporters
(312) 346-0911
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continue
on with my deposition .
Q . Mr
.
Cohen,
I'm going to show you what
I'm going to mark as Deposition Exhibits 2 and 3
.
Do you recognize those documents?
A .
Yes .
Q .
Your signature is affixed to Exhibit
Number 2?
A .
Yes .
Q .
Is that your signature on Exhibit Number
3?
A .
Yes .
Q .
The statements made in the affidavit and
in the attachments were true and accurate to the
best of your ability at the time?
A .
At the time they were true and accurate
to the best of my ability .
Q .
Has that changed at all?
A .
Yes .
Q .
Why has it changed?
A .
When I prepared Deposition Exhibit Number
2, I indicated that the costs incurred by the
Attorney General's Office was $5,574 .84
. I believe
this was contained in, as part of the closing
rebuttal argument submitted to the Pollution Control
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McGUIRE'S II
Certified Shorthand Reporters
(312) 346-0911
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Board
. You and your clients raised an objection to
the way we submitted the costs and fees, and that
resulted in the People having to file a separate fee
petition .
When I went back to check everything for
the separate fee petition filed after the trial,
after the closing rebuttal argument, I was not able
to substantiate the same number for a total in terms
of the bill . I was only able to substantiate for
our fee petition $3,482
.84, so I corrected that in
the affidavit submitted with the fee petition .
Q .
Why weren't you able to substantiate the
$5,574 .85?
A .
I don't really know . I don't really know
why I couldn't substantiate . The amounts in the fee
petition corresponded to bills that I had in the
file .
Q .
Well, what did you use in order to come
up with the figures that are in Exhibit Number 2?
A .
In Exhibit Number 2, this was prepared
during the course of completing the closing
argument . We had a
-- I had asked a paralegal in
our office to gather all the information for the
costs
. Somehow while I was working on that the task
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McGUIRE'S II
Certified Shorthand Reporters
(312) 346-0911
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got assigned to a paralegal student intern, someone
who was in paralegal school at the time, was
interning for us . She collected all the information
to support the costs and put that information
together
. Either I made a mistake in the addition,
she made a mistake in the addition or a bill was
lost or something like that .
Q .
Well, I take it before you signed Exhibit
Number 2 you would have reviewed all the receipts
that were attached or were there receipts attached?
A .
There were no receipts attached to
Exhibit Number 2 as I recall, just this outline, and
I believe the paralegal student intern prepared a
table of some sort listing all the costs .
Q .
Did you ask to see the receipts in order
to support the $5,574
.84 amount?
A .
I don't remember .
Q . So you don't remember what you did before
you signed the affidavit which is now Exhibit Number
2, is that a fair statement?
MR
. PARTEE : Well, he's not saying he doesn't
know what he did
. He doesn't remember if he
reviewed receipts .
THE WITNESS : A
. That's a better way to say
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McGUIRE'S II
Certified Shorthand Reporters
(312) 346-0911
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it
. I don't remember if I reviewed specifically
receipts
. I do remember seeing some sort of table
that had been prepared
. Whether I saw the receipts
underneath it or not I don't recall
.
MR . JAWGIEL : Q
. Did you rely solely on this
table that was prepared by the student paralegal?
MR
. PARTEE
: I would object that that's asked
and answered
.
THE WITNESS
: A
. I don't remember if I relied
solely on that table or not
.
MR
. JAWGIEL : Q
. Do you remember what you
relied on before you signed Exhibit Number 2?
A .
I believe I relied on the paralegal
student intern and the information she provided
.
Q . Which would be this table that we were
talking about?
A .
This table, correct .
Q .
All right
. Did you ever bring a motion
to withdraw or correct Exhibit Number 2?
A .
No .
Q .
Why not?
A .
I felt that I did correct it when I
submitted the fee petition, and that was the first
time that the error came to my attention
.
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Q . Just so we're clear, the first time that
there was a petition for fees at all in the case was
in your rebuttal?
A .
I don't know that I would call it a
petition, but we put a section in the closing
rebuttal argument asking for costs and fees
.
Q .
the closing argument?
MR . PARTEE : Objection to relevance .
THE WITNESS : A . No
.
MR . JAWGIEL : Q . Was it raised in your
initial closing arguments?
MR . PARTEE : Same objection .
THE WITNESS : A . Yes .
MR . JAWGIEL : Q . Was there an amount
calculated at that time?
A .
No .
Q .
Why not?
A .
Why wasn't an amount for attorney fees
calculated when we did the closing argument, is
that --
Q . Right . When you submitted your initial
closing argument, why didn't you submit an amount
for the attorney's fees prayed for and costs?
That was the first time it was raised in
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A .
I didn't know the amount at that time .
2
Q . Why not?
3
A . There was a lot more work left to do in
4 the case, and the attention was focused on bringing
5 the facts of the case to light before the Pollution
6 Control Board .
7
Q .
So at the time that you drafted your
8 closing argument in this case you did not have a
9 tally of the attorney's fees or attorney's hours
10 that were spent in this case?
11
A .
I don't recall having a tally at that
12 time .
13
Q .
Do you know why you wouldn't have had a
14 tally at that time?
15
A . Well, again, the case was not over .
16 There was still more work to do
. I knew we had a --
17
Q . Whether the case was over or not you
18 still had a tally at that point in time?
19
MR . PARTEE
: Well, I would object to the term
20
tally and what exactly that means .
21
MR . JAWGIEL : He didn't say he didn't
22 understand it
.
23
Q . Go ahead
. Do you understand the word
24 tally?
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A .
I seem to think that we listed everything
together and calculated a total amount .
argument and including the closing argument?
A .
No, we did not do that .
Q .
Why not?
MR . PARTEE : Objection, argumentative .
THE WITNESS : A . We just
-- there was more
work to do in the case .
MR
. JAWGIEL : Q
. Fair enough . I agree . You
had to do a rebuttal certainly . You had to review
the response certainly . But you certainly could
have conditioned your request for attorney's fees
saying up to and including this closing argument
we've incurred attorney's fees of and we anticipate
there will be additional attorney's fees for the
rest --
MR . PARTEE : That's not a question .
MR . JAWGIEL : Q . -- fair enough?
A .
That's true
.
MR . PARTEE : Objection, asked and answered
.
Objection, argumentative .
MR
. JAWGIEL : Q . So why wasn't it done that
way?
Q .
Yes, up to the date of doing your closing
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MR
.
PARTEE : Objection, asked and answered .
Objection, argumentative .
THE WITNESS : A . I've never done
it that way .
I've never thought to do it that way .
MR . JAWGIEL : Q . Fair enough . Were you
aware
of a total amount of attorney's hours spent when you
did your closing argument?
MR . PARTEE
: Objection, asked and answered .
THE WITNESS : A . I'm not sure I understand
the question .
MR . JAWGIEL : Q . Sure . Mr . Murphy was
involved in the case . Obviously you were involved
in the case . We know Mr . Sternstein was involved
but his hours were redacted?
A .
Correct .
Q .
At the time that you did your closing
arguments did you have a total for the amount of
hours that you spent in the case up to the point of
the closing arguments?
MR
. PARTEE : Objection, asked and answered .
THE WITNESS : A . I don't think so
.
MR . JAWGIEL
: Q . Why not?
MR . PARTEE
: Objection, asked and answered .
Objection, argumentative . That's like ten times
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now .
THE WITNESS : A . I wasn't at a point where I
was ready to total them up .
MR . JAWGIEL : Q
. Well, were they listed
somewhere?
A .
For my hours they were on my computer
.
•
. What's involved in totaling your hours
once they're entered into the computer?
A .
You have to go back to each date and pull
that information up and then put it in a list
somewhere and add up all the different hours .
Q .
How did you figure out what dates you
performed certain tasks for the Skokie Valley case?
A .
At what point?
•
. When you calculated the total amount .
A .
When I put together the list for the
attorney fees, I went back to my calendar to find
which days I worked on the Skokie Valley case .
•
. So you went through the entire calendar
to figure out what days you did something on Skokie
Valley?
A .
Correct .
Q .
You didn't print those out and put them
in the file as you did it?
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A .
Not as I did it, no .
•
. So you had to spend time literally going
through years of your calendar to figure out what
days you actually worked on the Skokie Valley case
as opposed to any other case?
A .
Correct .
•
. Do you consider that to be efficient?
MR . PARTEE : Objection .
THE WITNESS
: A . I don't know of a more
efficient way but --
MR . JAWGIEL : Q . Well, how about printing it
out as you enter it into the computer system and
keeping a file in your file of attorney hours spent?
MR . PARTEE : Objection, argumentative .
MR . JAWGIEL : Q . Would you consider that to
be more efficient?
MR . PARTEE : Mike, that's argumentative .
THE WITNESS : A . Not for me .
MR . JAWGIEL : Q . Fair enough
. Now, did you
review Mr
. Murphy's hours that he spent on this
case?
A .
At any time or
•
. Well, do you have recollection of those
hours?
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A .
Specifically?
Q .
Right .
A .
No .
Q .
Do you have any opinions with respect to
Mr . Murphy's hours as you sit here today?
A .
Opinions of his hours?
Q .
Any opinions, whether they're adequate,
whether they were sufficient, whether they were
inflated, anything?
MR . PARTEE : Why don't you ask him the
specific questions and then he can answer?
MR . JAWGIEL : Q . Do you have any opinions
regarding Mr . Murphy's hours?
MR . PARTEE
: I'll object on vagueness grounds,
and that calls for a narrative response
.
THE WITNESS : A
. Well, I guess part of the
answer has to include my knowing Mr
. Murphy . I
worked with him . I worked for him
. He was my
supervisor
. I don't believe the hours were inflated
at all . He, you know, had to jump into a case very
late and put on a trial and do the best he can, so
it was a very tight schedule for Mr
. Murphy .
MR . JAWGIEL : Q
. Were you the lead counsel on
the case once Mr
. Murphy was involved?
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A .
Yes .
Q .
Did you divide
the tasks amongst
you and
Mr . Murphy
that
would be done in preparation for the
trial?
A .
I wouldn't say that I did it like a
supervisor like you're going to do this, you're
going to do that
. We met and discussed that and
split the tasks
.
Q .
What sort of safeguard did you have that
you weren't overlapping your efforts?
A .
I don't know what you mean by safeguard
.
Q
. Well, what was your procedure to make
sure that Mr
. Murphy wasn't doing the same thing
that you were doing, if you had one at all?
A .
Yeah, I don't know that we had a
procedure . We split up witnesses
. That was
probably the main way we divided the work at that
point
. I think Mr
. Murphy only started within a
month of the trial date
.
Q .
Did Mr
. Murphy start once you initially
became aware that Mr
. Sternstein was going to be
removed from the case?
A .
No
. He started a little bit before that
as I recall .
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Q .
Why would
he start before you became
aware that Mr . Sternstein
was going to
be removed
from the case?
MR . PARTEE : I object
to the form of the
question .
THE WITNESS :
A . As I recall, it
was because
the case
was going to trial,
a Pollution Control
Board case which doesn't
go to trial very
often, and
so I believe the office
assigned a third attorney,
and Murphy
was that attorney .
MR .
JAWGIEL : Q . So Mr . Murphy
was going to
be assigned regardless of
whether or not
Mr .
Sternstein was going
to be involved in the case
or not?
A .
I think so .
Q .
Fair enough . How did you determine
that
the
billable hours should be $150 an hour?
A .
That was based on
Pollution Control Board
precedent .
Q .
Cases that had been submitted before and
approved?
A .
Correct .
Q .
Fair enough . Can you cite any cases that
you were involved in where you received a $150 an
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hour fee prior to the Skokie Valley case?
MR . PARTEE
: Even in private practice?
MR . JAWGIEL : Only with respect to the
Attorney General's Office
. That's a very fair
question, clarification .
THE WITNESS : A . No .
MR . JAWGIEL : Q . Are you aware of any cases
that Mr
. Murphy might have been involved in where he
submitted a petition for attorney's fees at $150 an
hour and they were approved?
A .
I'm not .
Q .
Q .
What sort of cases then are you referring
to that were approved for a rate of $150 an hour in
this type of circumstance?
A .
Pollution Control Board cases . There's
case opinions or case orders from Pollution Control
Board cases that indicate $150 an hour is a fair and
reasonable rate for the Attorney General's Office .
Do you know the names of those cases?
A .
I don't know them off the top of my head .
I think they are in the, either or both the closing
rebuttal argument and the fee petition
.
Q .
Fair enough . What increment of time did
you record your time at?
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A .
I typically
did not put
any time down
if
it was
less than an hour working
on a case
. I
typically
rounded down
to the nearest
half hour .
Q .
So when
we look at your
time sheets,
we're seeing
rounded hours
or half hours ;
is that
correct?
A .
Correct
.
Q .
Any task that
would be less than
a half
hour or less
than an hour you
wouldn't bill?
A .
I believe
that's correct .
Q .
But you also block
billed ; is that
correct? You put
multiple tasks or
billed for
multiple tasks
at the
same time ; is that
correct?
MR . PARTEE : I
object to the use
of the phrase
block billed
.
MR . JAWGIEL
: Q . Do you know what I
mean by
the phrase
block billing?
A .
I'm not really sure .
Q .
Fair enough . If
you're not familiar with
a term that I use, let me know .
If I defined the
term block billing to mean including multiple tasks
in the same time frame that's being charged or
recorded as being block billing, for example, and
this is just an example, review interrogatories
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propounded by
the respondent,
prepare preliminary
answers to
those, prepare responses to
the request
to
produce, review documents in file
in response to
request to produce, those are multiple
tasks, would
you agree with me?
A .
Yes .
•
. Each one of those tasks
would command
a
certain time element, fair enough?
A .
Yes .
Q .
Certainly
there's a demarcation between
one task and the next?
A .
Yes .
•
.
Is that understood?
A .
Yes .
Q .
If I
billed for that string of tasks two
hours and I
just put two hours down, I've billed a
block of tasks for a particular charge?
A .
I understand .
Q .
Is that what you did?
A .
Yes .
•
. So if we
look at your time sheets and we
see, for example, on October 2nd, 2003 trial prep as
a phrase, trial prep and then document review,
Garretson test, that would be considered
a block
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billing?
A .
Yes .
• . Could you
tell me how much time you spent
on that particular day for trial prep as opposed to
document review?
A .
No .
•
. Could you tell me specifically what you
did for trial prep?
A .
No .
Q .
So there's no way looking at the sheets
that you have kept and the time notations that you
kept for us to determine in any more detail than is
recorded in the sheet how much time you spent per
task, is that a fair statement?
A .
That's a fair statement
.
•
. And there's no way for us to tell how
much time you would have spent specifically
Strike that .
There's no way for us to tell what you
did with respect to specifically expanding any term
that's a general term, for example, trial prep?
A .
From those time sheets, that's correct .
Q .
Is there anything that you know of in
your review of the materials or your recollection of
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this case that would clarify those time sheet
entries either with respect to detailing the general
terms or breaking apart the various tasks into
incremental time spent for each task?
A .
I don't remember ever breaking up the
time incrementally like if I did more than one task
in a day . I don't remember ever putting down
different amounts of time for that case of the day .
It was always block time .
Q .
Okay .
A .
The Excel spreadsheet may be less
detailed than the entry on the calendar, so I'd have
to see that to know, and then the other at this
point being so long ago, that's probably the best I
could do .
Q .
Fair enough . I'm going to show you what
I'm going to mark as Exhibit 4 . It's really Group
4 . I'm just going to write group on the tag
. Did
you review something similar to this, not these
exact documents, but before your deposition
something similar to this? They're double-sided
documents just so we're clear
.
A .
Right
. I did not review these, but I'm
familiar with these .
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Q .
Is this the Excel printout or is this
A .
This is, this is the printout from the
Group wise, so it's not the Excel .
Q .
Fair enough . This would be the calendar
program, am I correct in characterizing it that way?
A .
Right .
•
. Now did you and Mr . Murphy at any point
in time discuss how incrementally you were going to
bill your time? For example, you described every
half hour I would bill and I would bill down to that
half hour?
A .
I don't recall ever discussing that with
Mr . Murphy .
•
. Now, the Attorney General's Office, and
if I refer to it as the AG's Office just for the
sake of brevity, did they have a policy or procedure
or ever discuss that you should keep a record of
your time in these half hour increments and bill
down, so to speak?
A .
No .
•
. Where did you pick up this practice?
A .
I did, as we discussed earlier with
Deposition Exhibit 1, I did do billable hours at
Brune, Pezold, Richey & Lewis and kept track of my
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time there
. It was a little stricter
. At the
Attorney General's Office we have no requirement for
billable hours
. It doesn't affect my employment in
any way, so I chose this method sort of loosening up
the technique I used at Brune, Pezold, Richey &
Lewis .
•
.
What was the technique at Brune that you
were required to use while employed there?
A .
I don't know if it was a requirement, but
I tried not to bill if I was spending less than an
hour on a client's matter, and I rounded down to
quarter hours at Brune, Pezold, Richey & Lewis .
Q .
So Brune, I'll just call it Brune because
I have a terrible recollection on the full name, but
at Brune's office you wouldn't bill unless it was an
hour spent on the file?
A .
I don't recall .
•
. It's your recollection that you would
bill it at increments of a quarter hour?
A .
Correct .
•
. You would round down to the quarter?
A .
Correct .
Q .
Were your billing statements ever
reviewed and discussed at Brune's office?
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A .
Sure .
•
.
to maintain there?
A .
I don't know that there was a
requirement, and I don't remember billable hours in
private practice well enough, but for some reason
the number 1800 comes to mind .
•
. Fair enough . Since you've become a
department head have you instituted any program or
taught other Attorney Generals, Assistant Attorney
Generals at any point in time regarding time keeping
methods or techniques?
A .
No .
•
.
Do you have any plans on doing so?
A .
No .
Q .
Are you aware of the AG's Office having
any seminars or training materials in the works
regarding keeping time sheets?
MR . PARTEE : I would object to the relevance
of this given Mitch's current position in the AG's
Office on the criminal side .
MR . JAWGIEL : Fair enough . I certainly
understand you're on the criminal side
. It might
differ on the civil side .
How many billable hours were you required
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Q . Are you privy to meetings with other
department
heads regarding what's going on
in the
AG's Office in
general?
A .
Mostly criminal at this point .
Q .
Mostly
criminal?
A .
Yes .
Q . Your involvement
with
the
civil side or
departments has pretty much been weaned to nothing,
would that be a fair statement, other than maybe --
A .
Other than working with the Environmental
Bureau
.
Q .
Right . There's some connection with the
environmental but you certainly don't have any
merging of your policies or anything along those
lines?
A .
No .
Q .
Okay . That's fair . I'm going to show
you what I'll mark as Exhibit 5 . I have some real
basic questions with respect to it
. Let me show it
to you first before I launch into those . Just let
me know when you've had a chance to review it
. I
think it's double-sided documents as well
. Yours
are all single
. I apologize . Mine happen to be
double-sided
.
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(Witness peruses document .)
A .
Okay .
Q .
Now there's some handwriting on these
documents . If you start with, I guess it would be
your Page 3, there looks to be some sort of
handwritten section there . Is that your
handwriting?
A .
Yes .
Q .
Is it your handwriting on the first two
pages as well in the handwritten portions?
A .
Yes .
Q .
Now, the first two pages, how were these
typewritten portions generated?
A .
If you don't mind, I'm going to compare
this with -- no, you didn't give me this .
Generated, I typed it if that's what you're asking .
Q .
Well, how did you come to the month and
year and hours spent?
A .
As I recall this document, I think this
is -- well, this is obviously a work sheet, but I
think the original of this document or the clean
copy was part of the closing rebuttal argument
. I
went through my calendar and tried to summarize what
happened, the number of hours and what happened
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within a month for what I consider a summary sort of
time presentation, so this, the information comes
from my calendar, and I typed this up
.
Q .
that be the same entries that we would see in your
calendar?
A . No, I don't think so, because in this
document I only, I was summarizing a whole month .
In the other documents I think I went day by day
.
Q .
Why were you generating Exhibit Number 5
in the first two pages to summarize the whole month?
A .
At this point we don't know whether we'll
be the prevailing party, whether there will be any
objection to a fee application or anything like
that . I'm working very hard to finish the closing
rebuttal argument, and this is a, sort of an
expedited way to get in a summary fee petition
.
Q .
So the summary of work performed, would
Well, when did you generate this
document, the first two pages obviously
A .
Right .
Q .
-- not the handwritten portions that are
attached?
A .
I think I generated it at some point
while I'm working on the closing rebuttal argument
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in April of 2004 to -- I
think that this was
attached, a clean
copy was attached to the closing
rebuttal argument .
Q .
So you were able to come up with the
amount of hours spent for the closing
rebuttal
argument which happens to be the last
entry on the
second page, you knew that and then you started
to
generate the first
two,
these
two pages, would that
be
a fair
statement?
A .
Well, as I'm, I think as I'm preparing
the closing rebuttal argument and we're going to
seek costs and fees is when I start generating this
document
.
Q .
Q .
Now we see these handwritten pages
afterwards, after the typewritten pages, and there
are notations on the typewritten pages as well . We
see those . Now what are these documents?
A .
I think -- oh, you just want me to talk
about those pages?
Yes . What are they?
A .
These look to be the documents I
prepared, a working document, that after the
objection was made to the fees and the closing
rebuttal argument and we had to do the separate fee
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petition I then went through my calendar and wrote
down what the entry was in my calendar by hand
.
Q .
So as opposed to just printing out the
calendar and calculating the figure, what's in your
calendar, you actually went through the calendar and
actually wrote it out by hand?
A .
Right
.
Q .
Why?
A
. I am, if there was a shorter or shortcut
way to do it, I didn't know, and I believe this is,
the handwritten part of this document is also what I
used to type up the Excel spreadsheet .
Q .
So the entries that we see here, it says
abbreviated DESCR . I take it that means
description?
A .
Correct .
Q .
That's the description you had in your
calendar?
A .
I think so .
Q .
Did you bill or claim time for the time
you spent going through your calendar and writing
out this document in your petition?
A .
I would assume so .
Q .
I see . How much time did it take you to
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generate
these handwritten pages?
A .
I don't know .
Q .
But that would be something that would be
in, at least in part part of what you have recorded
in your time spent to draft the fee petition?
MR . PARTEE
: He already said he doesn't
recall . He would assume so
.
THE WITNESS : A . That's correct . I think
that that is true
. I do remember something else
that relates to one of your previous questions . You
asked me whether it would be more efficient to have
printed these sheets out from the calendar which are
this stack in Group Exhibit Number 4 . I didn't know
that these could be printed out I think until we got
the discovery request and then we figured out that,
yes, in fact, these could be printed out . I think
the first time I ever knew that these could be
printed out was after, well after I prepared my
Excel spreadsheet .
MR . JAWGIEL : Q
. Is there anything that would
have prevented you from having a paralegal or a
secretary at the office go through your calendar and
actually calculate off of your calendar the amount
of time you spent for the Skokie Valley case?
McGUIRE'S II
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1A
No one else in
the office would have
2 access
to my calendar . If you printed off
the face
3
of the calendar, for example, to give to
someone to
4
look at, you would not be able to see the
5 information that's contained in
the entry .
6
Q .
Why not?
7
A .
It doesn't appear on the face of
the
8 calendar . You have to actually open
up the box so
9 that the information contained in here
can be seen .
10
Q . At the time obviously, things
might have
11 changed, I
know computer systems change, but at the
12 time nobody but you had access to your calendar?
13
A .
Correct .
14
Q .
Had you prior to the Skokie Valley case
15 ever submitted a petition for attorney's fees in any
16 case?
17
MR . PARTEE : Ever?
18
MR . JAWGIEL : Q . With the AG's Office?
19
A . I think so .
20
Q . How many times?
21
A .
I think once before this case .
22
Q . Do you remember the name of the case?
23
A . People versus Humane Manufacturing
.
24
Q .
Was your time scrutinized in that case?
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Was it contested?
A .
It's difficult for me to answer that
.
•
.
Why is that?
A . The court did not award attorney's fees,
and that was made clear at a certain point that it
didn't become as big an issue .
•
.
What was your understanding of why the
court didn't award attorney's fees?
A .
I have no understanding of why the court
did that .
Q .
There was no order?
A .
The order said it wasn't going to, it
didn't really explain . I think it said something
like each party would be responsible for their own
costs and fees .
Q .
To bear their own costs and fees?
A .
Right .
Q .
There was no explanation as to why your
petition wasn't granted?
A .
Correct .
Q .
Was your petition for attorney's fees
contested by the other side, the respondents?
A .
Not that I know of .
•
.
Was your request for attorney's fees
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under the same provisions of the EPA Act as what we
have here in Skokie Valley?
A .
Yes .
Q .
Why don't we have Exhibit 5 in front of
you?
A .
Sure .
Q . I'm just trying to figure out, and I know
part of it is cut off, it says something pops missed
two days?
A .
Yes .
•
. That's your handwriting?
A .
That's my handwriting .
•
. Do you have any recollection what you're
referring to at that time?
A .
Yes . I don't remember the exact dates,
times and hours, but when I went back through day by
day and compared it to the summary that I had
already prepared I had missed two days from my
calendar, my Group Wise calendar .
•
.
That was recalculated and then put into
your affidavit which I believe is Exhibit 2?
A .
This relates to costs .
Q .
That's costs . I apologize .
Strike that .
The corrected figure was the figure that
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you petitioned
for?
A .
I don't
remember .
•
. I'm going to refer you to an August entry
in the handwritten pages . There's a circled 34 by
it . It says dep prep Huff and there's a six hour
entry
; dep prep Huff, there's a four hour entry and
then there's dep prep Huff/Kallis, K-A-L-L-I-S, Huff
is H-U-F-F, a five hour entry . Were you in
communication with Mr
. Huff for six hours on that
date or was that dep prep of, your preparation for
his deposition?
A .
It was my preparation for his deposition .
He was one of your experts .
•
. Well, what did you review for six hours
in preparation for Mr . Huff's dep?
A .
I believe in August we had part of a
consultant's report that he had put together related
to the site remediation .
•
. Anything else?
A .
I might have had some past deposition
transcripts of his . I don't recall .
•
.
So you don't know what you reviewed then
specifically other than the report and possibly past
dep transcripts?
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A .
Correct, I don't remember .
Q .
How
would we find out whether or not
you
had past dep transcripts, would they be
in the file?
A .
I don't recall if they're
in the file, if
they would be in the file . I don't recall
if we
borrowed them from somebody in another case and
they
might have been given back for that
case .
•
.
dep transcripts?
A .
Correct .
Q .
All right . So you
don't
know
one way or
the other?
A .
I don't remember .
•
. Would you take notes if you reviewed the
dep transcripts?
A .
If there was something of interest that
related to
the facts of this case,
I
might
have
taken a note
. That's not typically the case when I
review other transcripts, so
I just read it .
•
.
So it's equally as possible you did have
I'm going to
refer you back to, and I
apologize
for shuffling through your exhibits here,
I think it's
2, I'm sorry, 4 .
A .
Okay .
Q .
We could
pick any day . Let's use
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what's your first day
that's on there?
A .
May 29th,
2002 .
•
.
I just want to
make sure I'm on the same
page . If we look at that
entry May 29, 2002, this
is
a typical
entry of each one of
the
ones that
you've entered, is that a fair statement,
in the
sense that the heading
is
the
same, SVA hours, so on
and so forth?
A .
It's typical, yes .
Q .
The
date recorded here start would be the
date that you did the task?
A .
Correct .
•
. And the end it has May 30th, 2002 . Is
that
the date that you ended the task?
A .
No . The task was
only, you know, an hour
in this case, but the way the system works, if, if
you just put the date down it just
shows the whole
24-hour
period .
Q
.
Because it's a
calendar?
A .
Right .
•
.
It
inserts the time that the entry would
have been made?
A .
No, not that I'm --
•
. Clarify .
I'm sorry . I don't have an
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understanding . I'm not familiar
with this program .
A .
When you open up
to put
in
an entry as
opposed to an appointment, it
seems to, and, again,
this is, I was just looking
at this, you know, when
we printed them out,
but it just covers the whole
time period . If you were making an
appointment, a
specific appointment, I think
you could limit the
time period .
•
. So this program, was this program from
your understanding designed
to record time?
A .
No .
Q .
Now if we look at your entry in Exhibit 5
to
match up with May 29th, 2002, we see that you
edited the entry from what we see in Exhibit Number
4 . It says BRF . I assume that's an abbreviation
for brief?
A .
Correct .
Q .
And MTG, meeting, I would assume --
A .
Correct .
•
. -- with Kelly, call to David O'Neill?
A .
Correct .
•
. If we look on
Exhibit 5 for May of 2002
since
it's the only entry I believe for May 2002 it
says meeting Re : Transfer or file transfer call to
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opposing
counsel?
A .
Correct
.
Q .
So the text of
what's in Exhibit
4 not
necessarily is
the same text we're
going to
see in
Exhibit 5?
A .
Correct .
Q .
Which
one is more accurate?
MR .
PARTEE : Objection
to the form of
that
question
. I mean that assumes
that one is
inaccurate
.
MR . JAWGIEL :
Well, it
doesn't assume
it's
inaccurate . I said more
accurate .
THE WITNESS : A . Yeah, I
can't, I can't
answer that one .
MR . JAWGIEL : Q . Why
did you change the
language?
A .
I was
typing this stuff up myself
and
just typed
it up in a way that I could
figure out
what happened . I did not -- I
would expect that the
entries on
my calendar are not
exact to the entries
on this exhibit and
are not exact to
the entries on
the Excel spreadsheet and probably
aren't exact to
the handwritten notes attached .
Q .
So my question to you then : Which
is
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your best representation of your time?
MR
. PARTEE : I object to the form of the
question again .
THE WITNESS : A . I can only answer it this
way : Group Exhibit Number 4 is the information I
wrote contemporaneously when I did the task, so to
me it's accurate . Entries made later may not be
exactly this but are to me an accurate reflection of
what I did on that day
.
MR . JAWGIEL : Q . All I'm saying is : Which
one do you put forth as your best representation of
the time that you spent? That's all I'm asking
.
A .
Yeah, I really can't answer it as a best .
I can only say that the calendar is the
contemporaneous one
.
MR . PARTEE : I would object to the form . I
don't think he's required to choose between one or
the other .
MR . JAWGIEL : Q . How much time on May 29th,
2002 did you spend in a meeting with Kelly?
A .
I don't recall .
Q .
How much time did you spend in the
telephone conversation with David O'Neill on that
day?
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A .
I don't recall .
•
.
mean, in Exhibit Number 4?
MR . PARTEE : Where are you
looking?
MR . JAWGIEL : Q . It's the last typed
portion .
It says
meeting status and then there's an entry .
Underneath it says for Mitch Cohen . What is that?
A .
Meeting status and
across it says meeting
organizer?
•
. Yes . I don't know what that means . Do
you have any idea
what that means, what the purpose
of that is?
A .
I don't know for sure . I can give you
a
guess .
•
. No, don't guess . Don't worry about .
A .
I don't
know
.
Q .
The
case
is not going to turn on it . I'm
just trying to do it for clarification .
It says show time as
.
Then it says
free
.
Was that something that you typed in?
A .
No .
•
. Is that something that comes up on the
program automatically?
A .
Yes .
It says meeting status,
what does that
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Q .
Why wouldn't you -- can you change that?
A .
For the record, I'm flipping through
randomly .
Q .
Yeah, they all say free
. Look at that .
All free .
A .
I don't know
. All I can do is give you a
guess based on my understanding of the program .
Q . You have no understanding of the program
as you sit here today why it comes up with free, the
word free?
A .
I think I know but I'm not --
Q . I want your understanding . I'm not going
to hold you to your expertise . I just want to know
what your understanding is .
A .
My thought is that because I did not put
a meeting time that it comes up as a block of free
time on the calendar .
Q .
Where would you put the meeting time, on
the start period, where it says start?
A .
We don't --
I don't know . I don't
remember
.
Q .
When you put this entry in where it says
start and it says Wednesday, May 29th, 2002 and then
you actually insert a time there as opposed to just
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having, I assume just 12 a.m., you
weren't in the
office at 12 a .m . I would imagine
on that day, were
you?
A .
No .
Q .
So you actually put the time that you
started these tasks that are listed below . Could
you have put below that Wednesday, May 29th, 2002,
the time that you actually ended the task or tasks?
A .
I did not do that .
Q .
But could you?
A .
I don't know
.
Q .
So you actually didn't have any sort of
clocking of your time through this program?
A .
Correct .
Q . You don't know whether or not the program
would have allowed you to do that or is it something
you just didn't do?
A .
I don't think the program allows for
that .
•
. How did you know that you spent an hour?
A .
I kept track of the time .
•
. So you looked at your watch?
A .
Correct .
•
. Or some sort of clock and you said, okay,
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I met with Kelly, I talked to Dave, that was an
hour?
A .
Right .
•
. You went to the computer and you put this
in?
A .
Correct .
Q .
How do we know the date that you actually
put this in?
A .
How do you know?
Q . Yes . How do we verify that in this
document? Is there any way to verify it in the
document?
A .
I don't think so .
•
.
Are you aware of any part of this program
that would let us know when these entries were
actually input into the system?
A .
I don't know of any feature that would
allow that .
•
. We can't tell from the documents
themselves other than the start date what day the
entries were made?
A .
Correct .
Q .
The start date is a true and accurate
representation of when you made the entry?
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A .
The
start date?
Q .
Date, yes,
not the time
.
A .
In other
words, did I
make the entry
on
the day that
it's indicated?
Q .
That says start .
A .
I believe I
made the
entries on the day
that I did the task
. I don't know
that I did
that
-- again, I'm
flipping through
this exhibit,
and
they all say the
same thing, the 12
a.m . to, of the
day
of the task to 12 a.m .
the next day,
so I
believe they were
made the same day as
the, as the
date of
the task .
•
. The
start date?
A .
Yes .
Q .
As opposed
to the end date?
A .
Yes .
•
. Did you work on
weekends?
A .
Yes .
•
. How did you record your
weekend time? I
see here a Sunday . You would put the day
that you
worked on the weekend? For example, if it was a
Sunday or Saturday,
you would do an entry Sunday or
Saturday, whatever the
case may be?
A .
Correct .
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Q .
Did
you work from home at any point
in
time or out
of the office?
A .
I probably did work from home at times .
Q .
Did you work out of the office?
A .
Other than at home?
Q .
Other than at home, yes .
MR . PARTEE
: Other than the hearing itself,
depositions?
MR . JAWGIEL
: Depositions all went at the
office .
THE WITNESS : A . The only possibility, I
might have met with, other than the hearing I might
have met with Chris Kallis once in Des Plaines, but
I don't, I didn't work a lot out of the office on
this case .
MR . JAWGIEL
: Q
. How much time approximately
did you work at home on the case?
A .
I don't remember .
Q .
Fair enough . Could you access your
calendar once you were at home?
A .
If you can, I didn't not know how to do
it .
Q .
When you were at the hearing were you
able to access your calendar or get into your
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calendar?
A .
No .
Q .
So
you had to be in the
office in order
to make these
entries?
A .
Correct .
Q .
You
could set the
start date any
date you
wanted
even if it wasn't the
date you were
making
the
entry ; is that correct?
MR . PARTEE :
I would object . That
mischaracterizes
his testimony .
MR . JAWGIEL : I'm
not saying he did do that .
I'm saying it
was possible to do that .
THE WITNESS : A . If
you mean by start
date
could I go back in my
calendar and record
time that
I had already worked,
yes . Now that you mention
the
hearing, I'm sure
that's what I did .
MR . JAWGIEL : Q .
More than likely, yeah . You
got back to the office at some point in
time and you
entered it into your calendar whatever that day was?
A .
Right .
Now
did Joel Sternstein stay with you
when you were in Libertyville for the hearing?
A .
Not that I recall, no .
Q .
Did Joel have his own room?
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A .
No .
I --
no .
Q .
Did
you review any
documents or
e-mails
or printouts
of anything that
indicated
you
requested
a room
for Joel?
A .
I recall
requesting a
room for Joel .
Q .
Why did
you do that?
MR . PARTEE
: Object on
relevance grounds
.
THE
WITNESS : A .
We had a trial coming
up .
Our
procedure in
the Office is
we have to request
travel
arrangements in
advance, and we were
planning
to be out there for
the hearing,
so I did make a
request
as I recall .
MR . JAWGIEL : Q .
Why were you
planning on
getting a room for a
hearing that was going in
Libertyville,
Illinois?
A .
I'm not sure I understand
the question .
Q .
Well, I mean how
long did it take to get
from
either your -- well, how long did
it take you
to get from home
to Libertyville, Illinois at the
time of the hearing?
A .
I don't
remember .
Q .
How much time did it take
to get from the
office to Libertyville, Illinois?
A .
I don't remember .
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1
Q .
Do you have any estimate of time for
2 those distances?
3
A . I don't remember . I don't even remember
4
what the distance is .
5
Q .
All right . You don't have to give me the
6 address
. I don't want your address . No offense but
7 I'm not going to send you any
holiday cards or
8 anything along those lines . But what time did you
9 -- what town did you live in at the time of this
10 hearing which was October, end of October
11
A . Chicago .
12
Q . -- 2003?
13
You were
in Chicago?
14
A . Yes .
15
Q . North side, west side, south side, east,
16 east in the lake?
17
A .
Almost in the lake, north side .
18
Q . At any point in time did you drive from
19 home to Libertyville during the course of the
20 hearing?
21
A .
I think I -- I don't remember if we left
22
from the office or if I left from home, but I did
23
drive out there .
24
Q .
Using a
State car or your own car?
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A .
I used my car
.
Q .
went out there initially?
A .
I don't think so .
Q .
I'm going to show you Exhibit Number 6
.
That's an e-mail from you
; is that correct?
A .
Yes .
Q .
Did you have anybody with you when you
I think it's October 3rd
; is that right,
when that was?
A .
That's the date on here, yes
.
Q .
Now, Mr
. Murphy I believe was put on the
case right around October 3rd as well
; is that
right?
A .
I don't remember when Bernie was put on
the case .
Q .
I think you had indicated it was the
intention to have Mr
. Murphy on the case regardless
of whether Mr
. Sternstein was involved or not?
A .
That's how I recall .
Q .
So Mr . Murphy's position was basically
get ready for trial on short notice, at least it was
anticipated he would be able to do so?
A .
You know, I don't remember what we
thought his responsibility would be right at the
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beginning because
Joel was
still involved
in the
case .
Q . You don't have any
recollection
what
role
Mr
.
Murphy would
have played if
Mr . Sternstein
was
still in the
case?
A .
No, not at
all .
Q .
You have no
recollection
what the
intention
was of having
Mr . Murphy involved
in the
case?
A .
I
do not .
Q .
Do
you know who would?
A .
Probably Bernie, but other than that I
don't know .
Q .
All right
. Who was the person at the
AG's Office who made the decision to put Mr
. Murphy
on the case?
A .
It was either Rosemary Cazeau's or Bernie
Murphy's
.
Q .
Is Miss Cazeau still with the Attorney
General's Office?
A .
Yes .
MR . PARTEE
: I'm going to object on relevance
grounds, and to the extent we're getting into any
attorney privilege material we're not waiving that
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privilege . How we assign attorneys to cases is
irrelevant and privileged .
MR . JAWGIEL : Q . Mr . Cohen, I'm going to show
you what I'm going to mark as Exhibit Number 7 .
(Witness peruses document .)
It's a group exhibit just so the record
clear .
A .
Okay .
•
. Exhibit Number 7, are these documents
that you submitted for travel expenses and
supporting documents?
A .
Not all of them, no .
Q .
Which ones are not documents that you
submitted for expenses as well as travel expenses?
A .
The top page .
•
. What is the top page? I'll let you go
through the rest of them as we go along .
A .
It looks like a table of the expenses
.
•
. Did you draft this table?
A .
I did not .
Q .
Do you know who did?
A .
I do not .
•
.
You don't know if it's accurate or not as
you sit here obviously other than going through the
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receipts and matching
it
up?
A .
Not just looking
at the top sheet,
correct .
Q .
It has here in
the first entry for
October 28th, 2003 PLU separate word file dash PKG
.
Do you know what that means?
A .
I do not know what it means looking at
the description there, but from further back in the
package I was able, I'm able to figure
Q .
All right . Can you give me what your
understanding is of what it means based on what's in
the rest of the package?
A .
Yeah, I think it relates to parking that
I probably did downtown to pick up the files and the
boxes that we needed for the case
.
Q . So on October 28, 2003 you drove down,
parked your car and put the boxes in the car and
you're billing for the parking?
A .
That's what it looks like
.
Q .
You also went to work that day, I take
it?
A .
I don't remember what day of the week it
was but probably .
Q .
Well, let's see if we have a time entry
that out .
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for it . We
do have a time
entry .
That day you
billed 12
hours --
A .
Okay .
Q .
-- is that
right?
The parking
receipt would
tell us when
you parked
your car
at least .
Is this the
Wells
you got in, well,
you parked your
car at 7
:29 at
Lake and Wells ;
is that correct,
on that day?
A .
Yes .
Q .
You pulled out of
the lot or at
least
paid at
the machine at 18 :28
hours which by my
recollection
is about
6 :29 ; is that
right?
A .
Yes .
Q .
Did you
work at home that
night?
A .
It's possible .
Q .
Is it possible you
didn't?
A .
It's possible I didn't
.
Q .
You don't recall
one way or the other?
A .
I don't recall .
Q . All right . Now, when you
worked in the
AG's Office
during the Skokie
Valley case were you
required to swipe a card
or sign in whenever you got
in or out of
the office?
A .
No .
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•
. So you
basically had free flow when you
could go in and out of the office without recording
it on anything?
A .
Correct .
•
. Fair enough
. How would you get down to
work on a regular average day when you were going to
the office obviously?
A .
I commute by bus .
•
. Bus?
A .
Usually .
•
. You obviously have to pay the CTA a
little something to get down there and get home?
A .
Yes .
Q .
What would be your round trip cost to get
down to the office using the CTA?
MR . PARTEE : Objection to relevance .
THE WITNESS : A
. It's gone up several times .
It's now 3 .50 a day . I think back then it was
probably $3 a day .
MR . JAWGIEL : Q
. Fair enough . Was there any
reason why you didn't deduct the cost that you would
normally pay to get downtown from the parking
expense if you made exception to come down there not
just to pick up the file but to work obviously that
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day?
A .
Can you ask the question again?
MR . JAWGIEL : Sure . Can I have
it read back,
Kelly? It might be poorly phrased, so certainly I'd
be more than happy to rephrase it if it is
.
(Requested portion of the
record read .)
I can rephrase that question .
Q . On October 28th, 2003 it wasn't your
sole intention to pick up the file that day ;
obviously you were going to work that day as well ;
is that correct?
A .
Correct
.
Q
. You were scheduled or at least you were
required to come in that day into the office ; fair
enough?
A .
Yes .
Q .
So regardless of whether you were going
to pick up the file or otherwise, you had to
obviously get to the office somehow, and you didn't
deduct the cost of, the normal cost of getting into
the office from what you're claiming in expenses .
My question to you is : Why didn't you do that?
MR . PARTEE : I object on foundation grounds
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because I'm not sure -- you haven't asked whether he
could do that .
MR . JAWGIEL : Q
. Why didn't you deduct the
cost of commuting from the CTA to the office which
was your normal mode of transportation?
A .
That's not the office practice .
Q .
Is this a written practice?
A .
I don't know .
Q .
What practice does the AG or did the AG's
Office use back then in order to determine what
would be expenses related to a case?
MR . PARTEE : Objection to the form . Objection
on vagueness grounds .
THE WITNESS : A . I don't know that there's a
distinction between expenses to a case versus
out-of-pocket expenses, but we, if we have an
expense we turn in receipts for that expense and it
gets reimbursed .
MR . JAWGIEL : Q . Now, you left on the 29th
from your home at 6 a .m
. to go up to Libertyville
according to what we have on Page 2 of Exhibit
Number 7?
A .
Okay
.
Q .
With whom were you meeting at that time,
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1 if
anyone?
2
A .
In
Libertyville?
3
Q .
Right .
4
A
.
I was meeting with Mr
. Murphy and we had
5 witnesses lined up for trial prep
.
6
Q . Where were you meeting the witnesses?
7
A .
At the place where the trial was held .
8
Q . In the town hall or whatever it was?
9
A .
Right .
10
Q . I forget exactly the name . It was a
11 governmental building?
12
A . Right .
13
Q . Did you reserve a conference room there?
14
A . We had asked permission to use the actual
15
room where the hearing was .
16
Q . Oh, okay . All right . You arrived there
17 at 8 :15 a.m.?
18
A .
Yes .
19
Q . What time was your first meeting?
20
A . I don't recall .
21
Q . Was Mr . Murphy present during the
22 meeting,
the first meeting?
23
A . I think so .
24
Q . Check-in time obviously at the hotel
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would have been a little bit later than 8
:15 a .m . ;
fair statement?
A .
Yes .
Q .
Do you
remember what the check-in time
was at the Holiday Inn I believe?
A .
No .
Q .
So the only reason why you drove down the
day before was because you wanted to get an early
start on the 29th, is that a fair characterization?
A .
No .
Q .
Why didn't you leave from the office on
the 29th?
MR . PARTEE : Do you understand the question?
THE WITNESS : A . I think we're getting dates
confused or I'm getting the dates confused .
MR . JAWGIEL : I'll clarify .
Q . On the 28th you drove down to pick up
the file because you wanted to get an early start on
the 29th?
A .
Correct .
Q .
That was to make the meeting that you
were going to have or at least the first meeting?
A .
Correct .
Q .
On the 29th you drove around in
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1
Libertyville for
six miles
. Was that basically to
2
the hotel or where were you going?
3
A .
I believe the hotel was
a fair distance
.
4
Q .
It was in Gurnee . I'm
looking at the
5
Holiday Inn receipt .
6
A . Okay .
7
Q .
Was it in Gurnee?
8
A .
Yes .
9
Q . You couldn't find
a hotel in the
10 Libertyville area?
11
A .
I didn't look
. We have travel
12
coordinators for this
.
13
Q . Oh, there's people
who take
care of this
14
for you?
15
A .
Right, and there are only certain hotels
16 that are
authorized for State or government
17 contracts
.
18
Q .
Fair enough .
19
A . We were told that was the closest one
.
20
Q .
Do you know what hotels there are
21
approved at this time obviously for
government
22 contracts?
Obviously Holiday Inn was one of them .
23
A .
I'm not sure if it's by chain or by cost
24 in a particular area .
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Q .
Oh, I see . Do you know
what the costs
would have been in a particular area? I mean
obviously $87
was within that cost per day .
A .
It's actually different depending on
what
part of the state you go to, whether you go out
of
state, that type of thing .
Q .
This is not something you would have
handled?
A .
Correct .
Q .
This is all handled by this other
group --
A .
Correct .
•
. -- who does the travel arrangements?
A .
Correct .
•
. At the conclusion of the hearing which
was on Halloween, the 31st, at 3 :30 p .m . you
drove
home?
A .
Correct .
Q .
Why didn't you go back to the office?
A .
I was tired .
Q .
Fair enough . That took you
about two and
a half hours to get home
from there?
A .
Correct .
•
.
Did you experience heavy traffic on the
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29th coming up to
Libertyville or any
unusual road
conditions,
lines?
construction or anything along those
two
that I remember .
it
took?
took you
A .
Q .
A .
Q .
hours and
Not
Do
Not
Do
you
as
you
know the route you
we sit here,
no .
have any idea
why
15 minutes to travel
40 miles?
A . Are you
referring to on the 29th?
Q . Correct
.
A .
Q .
A .
I'm
But
guessing traffic
.
particularly
you don't know?
I don't remember it
being
unusual, but I
do know based on
experience that
coming out of the city can be
so much
very difficult, and
that's probably why I allowed
time .
Q .
Are you near any of
the major
expressways?
You said you were east?
A .
Q .
I'm east .
By Lake Shore Drive?
A .
Q .
Yeah .
So you'd have to get over to the Edens
Expressway?
A . Well, I had
to get to the Kennedy .
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Q .
The Kennedy
and the
Edens split or
Kennedy
to 294?
A .
Right .
Q .
So
you would take
90/94, if you
will --
A .
Right
.
Q .
-- which is the
Kennedy?
How would
you get over there?
A .
How would
I get to the
Kennedy?
Q .
Right .
A .
I live
at Irving
Park and Lake Shore
Drive .
Q .
You would take
Irving Park?
A .
I took
Irving Park west to
the highway,
and
I can tell you from
experience sometimes getting
to the highway
at Irving Park to get
on to the
highway can take 15,
20 minutes easy .
Q .
Did you keep
the toll receipts or were
you required to get toll receipts?
A .
Not required
to get toll receipts .
Q .
Is that a policy
as well of the Office?
A .
As far as I know,
yes .
Q .
So if you had tolls,
you took 294?
A .
No . It's possible, but even if
I took 94
I believe 94 turns
into a toll road, and I don't
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remember
where the exit
would have been .
Q .
Well, 94 would have taken
you to the
spur, and then once
you get off the spur
you don't
hit another toll .
A .
I'm not sure what
you mean by spur .
Q .
There's
the spur
ramp that goes from 94
to 294 as you go
through Deerfield .
A .
Okay .
Q .
There's a toll there but
once you get on
294 there's no toll when
you get off at
Libertyville . There's no toll
that you get charged
from the time
you get off the spur ramp until
the
time you
get to Libertyville .
MR . PARTEE : That's not a question .
MR . JAWGIEL : Q . Is that your
recollection?
A .
I don't remember the route we took, the
route I took, I should say . Just looking at this,
it looks like I had two tolls . Just to add to
that
Q .
Go ahead . I'm sorry .
A .
-- though this indicates
Q .
The travel
voucher, is that what you're
looking at?
A .
I'm still looking at the same second
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page .
It indicates October 30th, 2003 .
Q .
Right .
A .
And it indicates 80 cents . The person
who prepares this form gets the information from the
second to the last page in my package, and it's not
broken down by date . It's just broken down by
tolls, and it indicates 80 cents, so it's possible
it was one toll, one 40 cent toll each way .
Q .
Each way?
A .
Correct .
Q .
I see what you're saying
. Because
there's no tolls on the way home?
A .
It looks that's how she did it, yes
.
Q .
Fair enough
. On the last page, I think
your last page is the same one I have, it's a travel
request form?
A .
Correct .
Q .
It has down there, it says meals
. It's
in the bottom third of the document
. It says travel
cost meals . There's 12 there?
A .
Correct .
Q .
Did you have 12 meals?
A .
I don't recall .
Q .
You keep yourself in pretty good shape
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for somebody who eats six times a day .
Do you think
it was maybe two?
A .
Well, it's
a per diem based on
Q .
Quarters?
A .
time worked, your hours .
Q .
What's the
--
A .
If you would have asked me without
showing me this, I would have guessed nine, three
days, three full days, but based on the number of
hours worked
each day --
Q .
You get a higher per diem?
A .
-- it may have been a higher per diem .
Q .
In the miscellaneous, what compiles the
miscellaneous expenses?
A .
This form is prepared if possible before
the travel, and at the time this was prepared I was
not familiar with these forms . More recently I've
had to fill them out, and I've been instructed to
put in
an amount into that line just in case
something happens while you're on the road so that
it is accounted for within this form
. This is not
the exact, this is not
the form used to receive
reimbursement
.
Q .
Fair enough . So this is a request form
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so that you can
anticipate potential costs
A .
Correct .
•
. when the task actually occurs?
A .
Correct .
•
. It's kind of a budgeting form?
A .
Exactly .
Q .
So we don't look to the travel request
form for accuracy of the actual charges
; fair
statement?
A .
Correct
.
Q .
We would look to, the travel voucher
would be the most accurate?
A .
Correct .
•
. That's your signature down at the bottom
there?
A .
Correct .
•
.
Who is the person who signed as the
division head?
A .
It looks like Rosemarie Cazeau .
•
.
Oh, that's Rosemarie .
What receipts are you required to submit
with your travel voucher under the AG's policy at
the time?
A .
I certainly wouldn't represent that I
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know all of this policy . I can tell you from my
practice if I pay for the hotel I submit the hotel
receipt . Sometimes the Office does direct
billing,
in which case I wouldn't be
paying, and it wouldn't
be part of the
travel voucher
.
If I'm driving my
own car, then it's just mileage and no receipts . If
I'm driving a pool car, gas receipts would
be
required . If I'm driving a rental car, the rental
contract, gas receipts would also be required
. I've
never, tolls or meal receipts we've never had to
submit that I'm aware of . Let me just add --
Q .
And parking receipts are also added on?
A .
Parking, and if you look back at that
last page, the travel request form, if you're taking
a trip where you're flying, for example, or taking a
train or something like that .
Q .
Other means of transportation?
A .
Correct .
Q .
All right .
MR . JAWGIEL : Do you want to take a break?
THE WITNESS
: I was going to say if we could
take five .
MR
. JAWGIEL : Go ahead .
(WHEREUPON, a short recess
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was
taken .)
Q . Let's talk
a little bit about your
trial experience before the
Skokie Valley case . Had
you presented with the AG's
office any trials or
hearings similar to the type of hearing
that you had
in the Skokie Valley before the Skokie Valley case?
A .
I had presented trials . I don't know
quite what you mean by similar to .
Q .
Well, similar type of hearing, similar
type of format?
A .
The Skokie Valley case was my first
Pollution Control Board case . The other cases I had
presented were different forums .
Q .
Were they jury trials, bench trials or
what were they?
A .
Bench trials .
Q .
How many bench trials did you have before
the Skokie Valley case?
A . Only with the Attorney General's Office?
Q . Only with the Attorney General's Office .
A .
I had a bankruptcy trial, a bench trial
and a district court, so two .
take?
Q .
The bankruptcy trial, how long did that
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A .
Two days .
Q .
The district court case, was it?
A .
Yes .
Q .
District court case was a bench trial .
How long was that?
A .
I think the trial lasted, 28 days of
trial over approximately a six-month period .
Q .
That was quite large then?
A .
Yes .
Q .
Were you lead counsel on both of those
cases?
A .
No .
Q .
What was your role
in the bench trial in
Circuit Court?
A .
I started
assisting lead counsel which
was Kelly Cartwright
during the, at some point
probably that May time
frame . She was leaving the
Attorney
General's Office, so then I became lead
counsel .
Q .
Fair enough . During the hearing you
were
lead counsel, I mean during
the bench trial you were
lead counsel, I should say?
A .
After
Kelly left, yes .
Q .
I'm talking about the Circuit Court
bench
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trial .
MR . PARTEE :
They both were
MR . JAWGIEL
: Q . Oh, they
both were Circuit
Court
bench trials .
The 28 day one
A .
The 28 day
one was a Circuit
Court case,
and I was lead counsel
after Kelly Cartwright
left
the Office .
Q .
Was
that during the course
of the trial
that she left?
A .
Yes .
Q .
That's always fun .
Now before
coming to the AG's Office, and
I'm going to do this in a lump
basically because we
can go
through each place you were at, how many jury
trials had you had?
A .
This probably isn't an exact number but
about half a dozen .
Q .
That's
a fair estimate .
How many bench trials did you have before
the AG's Office?
A .
I couldn't give an accurate number .
Many, greater than 100 .
Q .
So quite a few?
A .
Yes .
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Q .
Fair enough . How many hearings similar
to the type of hearing that we had with Skokie
Valley were you involved in? It doesn't have to be
an EPA case
. It could be any sort of case in that
similar type of format with a hearing officer
.
A .
When I practiced in Oklahoma, I had one
hearing before the Corporation Counsel which is the
regulatory agency in Oklahoma .
Q .
Did you find anything to be particularly
difficult with the Skokie Valley case in the sense
of, in preparing your closing argument?
A .
For me preparing a closing argument for
the Pollution Control Board was very difficult .
Part of the reason was without even getting into the
technical aspect you had to rely on the trial
record, the transcript . I believe in this case
there were 40 or 50 exhibits, some of which were
complicated . Just pulling all that together is
complicated writing for me .
Technically the NPDS and DMR violations
were not that difficult to address for the Pollution
Control Board . The oil spill, the oil leaking into
the creek and the subsequent clean-up and
remediation Huff & Huff was involved in was
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technically challenging .
Q . You used that phrase for me
. Was it for
you because you hadn't done this before with respect
to drafting a closing argument?
A
. I had drafted a closing argument by that
point
. I had drafted it in the district court case
that I mentioned earlier .
Q .
The closing argument was in a written
form in that case as well?
A .
Yes, it was .
Q .
Why did you use that phrase for you it
was difficult?
A .
I'm not sure that it's difficult for
other people . This was my, being at the AG's Office
was the first time I've had to do written closing
arguments relying on a transcript, many documents,
that type of thing .
Q .
So just so I have an understanding of it,
you had submitted a written closing argument in the
Circuit Court case but that wasn't relied upon, you
weren't relying upon transcripts at that point in
time?
A .
I was .
Q .
Oh, you were?
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A .
Yes .
•
. That was submitted before the Skokie
Valley case closing argument?
A .
I think so .
•
. Because you spent and I don't exactly --
let me see if I can get an exact number .
(Counsel peruses documents .)
Well, we see you start drafting your
closing argument on December 18th
-- I take that
back
. It looks like on December 10th, 2003 you have
closing argument review transcripts
. Is that when
you started to prepare your closing argument?
A .
I'm not exactly sure but I'm looking
at
•
.
Well, you certainly can look at your
sheets here which is Exhibit Number 4
. I have
December 10th, 2003 as the starting point where it
says closing argument review transcript
.
A .
Would it be possible to see my Excel
spreadsheet?
•
.
Do you have that with you?
A .
I do not
.
Q .
I don't know that I have it available
.
A .
I mean I can look at that date for you .
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Q .
Let
me see if I have it available
.
(Counsel peruses documents
.)
MR . PARTEE : I
believe it was disclosed .
THE WITNESS : A .
Flipping through this stack
of printouts in Group
Exhibit Number 4, it
looks
like December 10th, 2003 I started reviewing the
transcript that was prepared by the court reporter
for the closing arguments .
MR . JAWGIEL : Q
. Would you consider that your
starting point in preparation for the closing
argument? I mean that's when you start preparing
your closing argument
. Obviously you review the
transcript ; is that right?
A .
It looks like from this stack of
printouts that that's when I started, yes .
Q .
Do you remember doing anything else on
December 11th, 2003 other than review the
transcript?
A .
I believe it's December 10th, at least
the sheet I'm looking at .
Q .
I apologize, December 10th . That was the
end date that I was picking up, the 11th .
A .
It looks like that's all I did, but it's
possible since I did write closing argument there
McGUIRE'S II
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1 that I might have
done some outlining
as well or
2 something like that .
3
Q .
Note taking?
4
A .
Sure .
5
Q .
Keep
that section there,
please . Then on
6 December 13th, 2003 it
says review
transcript . I
7 guess that's also in
preparation for your
closing
8 argument as
well?
9
A . Right .
10
Q . Keep going down . December
14, 2003 we
11 have REV TRANSC
. I guess that's
review transcript?
12
A . It looks
like that, yes .
13
Q .
That's also in
preparation for your
14 closing argument?
15
A .
Yes .
16
Q .
Obviously we see closing arguments,
17 closing argument, closing argument dash home
. On
18 January 11th, 2004 we have closing arguments dash
19 home . Is that an indication you were working from
20 home?
21
A .
Yes .
22
Q .
Was it part of your practice to note when
23 you worked from home?
24
A .
Yes, I tried to do that .
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Q .
Then I have a total amount
of hours spent
in preparation
for your closing argument
as 91
hours .
I don't know that you want to take
the time
to
calculate it . If you could look
at your summary
sheet if
there is any way . Is that about right, 91
hours for preparation of closing argument?
A .
Well, my summary sheet, looking at
Deposition Exhibit Number 5, it shows that in
January 2004 I spent it looks like 40 hours all
closing arguments
. There's certainly some time in
December that's related to closing argument . I
don't know that it equals 90 hours but it certainly
could .
Q .
91 hours, yeah .
A .
It certainly could .
Q .
The hearing itself didn't last that long,
did it?
A .
No .
Q .
Do you type your own closing argument?
A .
Yes .
Q .
Did the AG have secretarial staff to type
documents on behalf of the attorneys
MR . PARTEE
: I would object to that . That
assumes that he handwrote it in the first place .
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MR .
JAWGIEL : Q .
at the time of this
incident?
Please note the -- at the
time of this
hearing I
should say? Please note the
objection .
THE WITNESS
: A . There were .
We do have
secretaries,
yes .
MR . JAWGIEL : Q .
Did you have an
option of
having one of
those secretaries draft the closing
argument?
A .
Draft, no .
Q .
Well, not draft . Did you dictate?
A .
We don't have dictation .
Q .
You didn't have dictation . How would you
transfer
a document you wanted a secretary to
prepare?
MR .
PARTEE :
You're assuming in your question
that he didn't type
it
in the first place .
MR .
JAWGIEL :
No,
I asked him did you type
it
in the first place . He said yes I did type it in
the first place .
Q .
Isn't that
correct?
A .
Yes, I typed the closing argument .
Q .
What's your typing speed?
MR . PARTEE : This is ridiculous
. I would
object that this
is
ridiculous .
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MR . JAWGIEL : Q .
What's your typing speed?
A .
I'm
sure I haven't been tested since high
school .
Q .
Fair enough .
A .
But I'm a very slow typist
.
Q .
Q .
Fair enough . You billed for your entire
time it took you to actually type the document as
well as the time that it took you to think of the
thoughts that are in the document itself
MR . PARTEE : Object to the form of the
question .
MR . JAWGIEL : Q . -- is that right?
A .
That's true .
So you didn't differentiate the
administrative tasks of typing and preparing the
document from the attorney time in thinking the
thoughts contained in the document?
MR . PARTEE : Object to the form, and you're
assuming that he didn't type the document in the
first place which he testified that he, he already
testified that's what he did
. He didn't testify
that there were any administrative costs .
THE WITNESS : A . The way I work I wouldn't
and don't think it's possible to make a distinction
.
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I am simultaneously doing the thinking and typing
.
It's not as if I, for example, handwrote a section
and then just went in to type it or something like
that .
MR . JAWGIEL : Q . Well, certainly you think
faster than you can type, do you not?
A .
I don't know how to answer that .
MR . PARTEE : I would object to that question
too . It's argumentative
.
MR . JAWGIEL : Q
. Did you take any handwritten
notes?
A .
While working on the closing argument?
Q .
Right .
A .
Well, in some ways I did because I went
back to the calendar for at least the attorney fee
portion and handwrote that out . I don't remember
handwriting any particular section or -- it's
possible I took handwritten notes in reviewing
documents . There might have been something in a
document that I saw that I felt was important . I
might put a yellow sticky on there, you know, put
this in such and such a section .
Q .
Do you write faster than you type?
A .
Probably .
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Q . Is there any reason why you didn't
write
your closing argument and give it
to
a
secretary to
type?
MR . PARTEE : Objection, argumentative
.
Objection, asked and answered .
THE WITNESS : A . Again, this is a, for me
writing these closing arguments is
very difficult
when you have to bring in the cites to the
transcripts, cites to the exhibits and that type of
thing . I believe
I did it with a footnote fashion
in this case . Though I write
faster, though I may
write faster than I type, when you factor in putting
in footnotes, referring to
different things, I don't
think that would have been faster, and I don't think
I have a secretary who could have done that
.
MR . JAWGIEL : Q . Your
closing argument was
filed late in this case,
was it not?
A .
Correct .
Q .
Did you
bill for
the closing argument
even though you filed it
late?
A .
I billed
for the closing argument, yes .
Q .
Did you also bill for tasks that were
overruled by
the hearing board?
A .
I don't think I made a distinction
.
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Q .
So you
billed for everything you did
regardless of whether or not the hearing board
accepted it or not?
MR
. PARTEE : Granted it or not?
MR . JAWGIEL : Q . Fair enough
. Granted it or
not?
A .
I did not make any distinction .
Q .
Did you also bill for -- Well, strike
that .
As you typed it was that your final draft
of the closing argument?
A .
No way .
Q .
So did you bill for times that you spent
redrafting and editing your closing argument?
A .
Yes .
Q .
How do we differentiate how much time you
spent in editing as opposed to how much time you
spent in drafting the original closing argument?
MR
. PARTEE : Objection, relevance .
THE WITNESS : A
. Certainly there's
--
I don't
know of any way to do it from my time sheets .
MR
. JAWGIEL : Q . How else would we do it?
A .
And I don't know of any way to do it just
by the way I work . I'm constantly editing as I'm
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going along .
Q .
Was there any point in time that you had
a draft of it and went back and edited again or was
it editing constantly as you were going along?
A .
I have no independent recollection of
this case, but typically what I do is once I get a
draft that I'm satisfied with I do stop
. I do ask
others to read it, make any corrections, comments,
suggestions, and then I do at some point later bring
those copies back and rework it again .
Q .
You bill or clock your time, charge for
your time to rework it again?
A .
Yes .
Q .
Do the attorneys who review it also bill
for their time?
A .
They have not in the cases where I've
done that .
Q .
Was Mr . Murphy one of the people who you
had review your closing argument in the Skokie
Valley case?
A .
I would think Mr . Murphy did review it,
and I would think that Mr . Murphy being an attorney
on the case would have billed for it, but I
typically give it to people who don't know about the
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case
.
Q .
Get a fresh set of eyes on it, so to
speak?
A .
Correct, and
those people did not bill
for it .
Q .
There's no way for us to figure out how
much time was spent editing as opposed to drafting
the closing argument or the rebuttal?
MR . PARTEE : Objection, relevance .
THE WITNESS : A . No .
MR . JAWGIEL : Q . And there's no way looking
at this or any other document to tell us what you
did
on
any particular day other than you worked on
the closing argument?
A .
Correct .
Q .
If I can direct your attention to the
entry for April 11th, 2004 .
A .
In Group
Exhibit Number 4?
Q .
Please
.
A .
Okay .
Q .
You have it in front of you?
A .
Yes .
Q .
I have on there that you
have closing,
rebuttal, some home?
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A .
Correct .
Q .
You would indicate that, when you worked
only partially at home, you'd use that phrase some
home?
A .
Yes .
Q . The rest of it would have been in the
office
; is that correct?
A .
Yes .
Q .
You're also billing for settlement
discussions and attempts to resolve this matter?
A .
If you can point me to an entry or give
me my Excel spreadsheet
. If it's in there, yes
.
Q .
Look to December 21st, 2004 with a
telephone conversation to me, and I appreciate that
you spelled my name correctly
. Very nice of you to
do that .
A .
Can you give me the date again?
Q .
Yes, December 21st, 2004 .
A .
Yes .
Q . You also charged on April 20th, 2005 to
have a discussion with Mr . Partee
. I'm not asking
what that discussion was .
A .
Yes .
Q .
Is that right?
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Did you bill your time for supervising
Well, strike that
.
Did you supervise Mr
. Sternstein when he
was on the case?
MR . PARTEE
: I'll object on relevance grounds,
but you can answer .
THE WITNESS
: A
. I don't like the word
supervise because I wasn't superior or anything
. I
was lead attorney on the
case .
MR
. JAWGIEL : Q
. What --
A .
We did --
Q .
What phrase would you prefer? I'm not
trying to be sarcastic
. I'm just trying to get to a
question that we can get an answer
. I mean you're
lead counsel?
A .
Right .
Q .
You have managerial responsibilities
because you're the point person, if you will, you're
the person responsible for bringing this to a head
.
Mr
. Sternstein was a second chair at the time that
he was involved and certainly would be looking to
you for guidance and assignment of tasks?
A .
Yes
.
Q .
Would that be a fair statement?
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A .
Yes .
Q . Did you bill for the guidance and the
assignment of tasks that you gave Mr . Sternstein
during the course of this case? Is that part of
what is built into your hours?
A .
I would assume it is . Again, we were
really co-workers .
Q .
Right .
A .
We would meet, divvy tasks, so to speak .
Q .
We got this witness coming up ; what are
your thoughts ; my thoughts are X ; what are your
thoughts ; my thoughts are Y ; how do you think, what
do we need to get out of this witness ; what
difficulties are we having, whatever the case may
be
; should we draft a motion ; what's your thoughts,
those types of things?
A . Right
.
Q .
But you were the person ultimately
responsible for the end product that would come out
from these meetings, would that be a fair
assessment?
A .
I don't think so because if there was a
motion or a brief in support of a motion or
something like that and Joel, Mr
. Sternstein did the
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work related
to that --
Q .
You can
call him Joel .
A .
I would certainly read it but as far
as --
I'm pretty sure he signed the documents and
filed them .
Q .
Did you sign any of the documents that he
prepared?
A .
Did I sign any?
Q .
Yes .
A .
It's possible .
Q .
Is there any way for us to tell which
documents Mr . Sternstein may have prepared that you
signed?
A .
Not that I can think of with what we have
here today .
Q .
Anything? You're familiar with the file
certainly?
A .
If we looked at every document in the
file, there might be some that I signed that he did
the bulk of the work on . There were some times
where I was tied up in other trials or matters and
he, I think there's some hearings that he
participated in by himself .
Q .
The hearings we'll set aside
. Those we
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obviously know he
was present, whatever the case may
be . What we don't know necessarily
is who worked on
documents that were the end product
of the AG's
Office .
A .
Joel worked on a lot of documents that
resulted in an
end product . Whether he signed them
or I signed them I don't remember .
Q .
Did you bill for documents that you would
have signed that Mr . Sternstein prepared?
MR . PARTEE
: Do you understand the question?
THE WITNESS : A . I think so with an
explanation . If I didn't -- I didn't bill for
Mr . Sternstein's time that he spent on a document .
I would have billed for any time I spent reviewing
the document or doing related research to the
document or something like that, so I did not bill
Mr . Sternstein's time into my hours .
MR . JAWGIEL : Q . Well, let me ask you how you
coordinate, if there is any plan of coordinating the
time actually spent between attorneys on tasks
. Was
there a policy that the AG's Office had with respect
to coordinating the time spent on tasks between
multiple attorneys?
MR
. PARTEE : I would object that that's been
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asked and answered earlier
.
THE WITNESS : A . Not that I'm aware of .
MR .
JAWGIEL : Q . Did you ever check
Mr
. Sternstein's billable hours in this case to
determine whether or not he had any tasks that he
billed for that you actually billed for as well?
A .
No, but there could be many tasks where
we both billed for it .
Q .
A .
As I just stated, if he worked on a
motion or a brief in support of a motion, he would
bill for the time that he worked on it, and then if
he asked me to read it, to review it, I would bill
for the time I worked on it
.
Q .
What would those tasks be?
How would you note in your documents
based on your practices and procedures a review of
Mr
. Sternstein's work as opposed to drafting of your
own document? Is there a certain notation that you
use?
MR . PARTEE
: Object on relevance grounds
.
THE WITNESS : A
. As we flip through these
today, I don't recall ever seeing anything like
that
. I would just note my time that I worked on
that task .
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MR . JAWGIEL : Q .
But we wouldn't
know that
from
looking at the billing
statements that
you
reviewed Mr
. Sternstein's work? I mean if I look at
the totality of Exhibit Number 4, I don't see any
entry in there that says review Mr
. Sternstein's
proposed motion to do whatever or review
Mr
. Sternstein's memorandum of law on this issue or
review Mr
. Sternstein's anything, is that a fair
statement?
A .
I don't recall any entry like that
.
Q .
So there's no way for us to find out
based on what we have in the billing statements and
in your affidavit or any other document that you've
submitted from the fee petition whether you were
reviewing Mr
. Sternstein's work or drafting it
yourself?
A .
I think if you only look at my time
sheets and my spreadsheet that's probably true .
Q .
What do we look to then to make that
differentiation?
A .
There might be, and I certainly haven't
looked at Mr
. Sternstein's time sheets, but there
might be the way he kept his time sheets where he
might have said drafted motion for whatever, and
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then
that would indicate to me that he did the
drafting
.
If that same document appears in my time
records, it would indicate that he did the drafting,
I
might
have done the reviewing .
Q .
So basically we'd have to look to
Mr . Sternstein's time sheets in order to
differentiate what he did on any particular task
that you and he may have jointly worked on?
A .
I'm not sure, because I haven't seen his
time sheets
.
Q .
If the entry is made where he indicates
drafted or something along those lines?
A .
That might be a possibility . Otherwise,
I didn't make that distinction in my time sheets .
Q .
Why not?
MR . PARTEE : Objection, relevance . Who cares?
What's the relevance of this? He can review
Sternstein's work
. He can review Bernie's work . He
could review my work and bill for it
.
THE WITNESS : A . I guess my purpose in
keeping the time sheets was just to indicate what
time I worked and what I was doing in relation to
the case, not so much in relation to my co-workers
.
I never thought to do that .
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MR . JAWGIEL : Q . Is there anywhere in your
notation indicating that you actually drafted
any
motion or petition in this case where you actually
note draft?
A .
The best document for me to look for that
would be the Excel spreadsheet
.
MR . PARTEE : Mike, isn't that what you're
looking
at?
MR . JAWGIEL :
This is our own, this is my own
internal spreadsheet which, of course, is
attorney/client privilege . I don't
know that we
have Excel spreadsheets
. Mike says that we have
them .
MR . O'NEILL : I don't
remember ever seeing
them .
THE WITNESS :
I think it's attached to the
fee
petition .
MR . JAWGIEL : We'll have
to take a look for
it .
THE WITNESS : A . We've got
it . Flipping
through again Group
Exhibit Number
4 --
MR .
JAWGIEL : Q . I'm
not going to hold you to
each and every one .
A .
-- here is
an example, July
19th, 2002 --
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•
. Okay .
A .
draft amended complaint .
Q .
Now any motions or petitions?
A .
Where I indicated the word draft?
Q .
Draft?
A .
I don't recall specifically, and in
thinking of the entries for closing argument and
closing rebuttal arguments, I did not put the word
draft there .
•
.
argument as well?
A .
I think so .
Q .
Did Mr . Murphy draft part of the closing
Do we know how much of it he drafted as
opposed to you, I mean do you have any idea?
A .
I'm not sure that
-- I don't recall .
Q .
Do you remember what subject matters he
was to draft in closing argument?
A .
I don't recall in this case
.
Q .
Did you review his work, his drafting of
the closing argument, at least the sections of it
that he might have been involved in?
A .
If he drafted a particular section, I
definitely reviewed it .
•
.
And you billed your time for that as
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well?
A .
And I billed my time for that .
Q .
Did you bill your time to
incorporate his
into yours?
A .
Well, that's what I mean
by reviewing
it
.
Q .
Reviewed it and
then --
A .
Yes, I certainly would have incorporated
it into the
main document,
had
to have .
Q . Have to make it so it flows?
A .
Correct . Just let me be clear . I don't
recall Bernie doing a particular section in this
case
.
Q .
Did he do any research or anything along
those lines?
A .
Related to the closing argument?
Q .
Yes .
A .
I don't remember .
Q .
Did Mr . Sternstein assist in any
way
in
the closing argument?
A .
No .
Q .
Did Mr . Sternstein assist in
any
way
in
the rebuttal?
A .
No .
Q .
Did
Mr . Murphy assist in any way in the
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rebuttal?
A .
I would assume so .
Q .
But you
don't
know?
I mean you might not
have a recollection
. That's fine .
A .
I don't have a recollection to
a
particular
section, but if nothing else I
would have
expected him to have at least read and commented
on
the closing rebuttal .
Q .
Do you know if he was involved in any
research for the rebuttal, and this
is Mr
.
Murphy
just so we're clear?
A .
I don't recall .
Q .
If you could
look
in Exhibit Number 4 for
October 7th, 2004 .
A .
Okay .
Q .
It
says, correct me if I'm wrong,
research, outline, etc .,
response, fee petition
(Union League Club)?
A .
Correct .
Q .
Were you at the Union League Club?
A .
Yes .
Q .
What were you doing there?
A .
I don't remember exactly . There was some
sort
of seminar there
.
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1
Q . Seminar on what?
2
A .
I'm sure it was related to environmental
3 law but I don't remember
.
4
Q .
Did it have anything to do
with your
5
research, outline, et cetera, response
and
fee
6 petition?
7
A .
No .
8
Q . So you were actually drafting while
you
9 were at this seminar or researching while you
were
10 at the seminar?
11
A . Correct .
12
Q . How were
you researching during the
13 seminar?
14
A . I was sitting in the back of the
room at
15 a table with my Skokie Valley Asphalt file working
16 on my fee petition .
17
Q .
Well, that would be reviewing the file .
18 How were you researching?
19
MR . PARTEE : Objection,
argumentative .
20
THE WITNESS : A . How was I researching?
21
MR . JAWGIEL : Q .
Yes .
22
A .
I would expect that I had the case law
23 with me and was reading the case law .
24
Q . What were you doing in the etc . section
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at that time?
A .
I
don't know exactly, but I think I
was
working on the
fee petition .
•
. How long did
this seminar last?
A .
I think it was
an all-day seminar .
Q .
Did you take lunch while you were at the
AG's Office on a regular basis?
A .
Yes .
•
. Did you also take breaks as well?
A .
Yes
.
•
.
What sort of breaks would you take in an
average day while you were in the office obviously?
A .
I might just stand up from my desk and
walk around and bug somebody else
.
were working on the Skokie Valley case that they
required you to take a certain, you know, two
15-minute breaks or something along those lines?
A .
No .
Q .
How long were your lunches on average?
A .
Well, I think we can take an hour lunch
break .
Q .
Did the AG have a policy at the time you
Q .
How long were yours?
A .
Mine were typically just a few minutes to
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run out, grab something to
eat, grab something,
bring it back to
my desk, eat at my desk .
Q .
Typically eat at your desk?
A .
Typically .
Q .
Basically it was just a matter of leaving
the office, getting some food or whatever you were
going to eat that day and coming back?
A .
Right .
Q .
How long would that take on average?
A .
Ten, fifteen minutes .
MR . JAWGIEL : Michael, of course you have the
right to ask some questions . I will transfer the
witness over to you so to speak .
MR . PARTEE : I appreciate it, but I don't have
any questions for the witness
.
MR
. JAWGIEL : Mr . Cohen, I want to thank you
for the record for being here today and congratulate
you again for your promotions .
THE WITNESS
: Thank you .
MR . JAWGIEL
: You know about signature
.
THE WITNESS : Correct
.
MR . JAWGIEL
: Certainly we'd like to know what
your decision is on signature
.
THE WITNESS : I'd like to reserve signature
.
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113
MR . JAWGIEL : Fair enough . We'll
show
signature has been reserved .
That will conclude the deposition .
(Witness
excused .)
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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS )
of
by
the
LISA
State
MADIGAN,
of Illinois,Attorney
General)
)
Complainant,
)
vs .
)
No . PCB 96-98
SKOKIE VALLEY ASPHALT CO ., INC ., )
et al .,
)
Respondents .
)
I hereby certify that I have read the
foregoing transcript of my deposition given at the
time and place aforesaid, consisting of Pages 1 to
112, inclusive, and I do again subscribe and make
oath that the same is a true, correct and complete
transcript of my deposition so given as aforesaid
and includes changes, if any, so made by me .
MITCHELL COHEN
SUBSCRIBED AND SWORN TO before
me this
day of
A .D ., 2006 .
NOTARY PUBLIC
