PEOPLE OF THE STATE OF ILLINOIS,

Complainant,

SKOKIE VALLEY ASPHALT, CO ., INC.,

EDWIN L. FREDERICK, JR ., individually and as

owner and President of Skokie Valley Asphalt

Co

., Inc., and RICHARD J . FREDERICK,

individually and as owner and Vice President of

Skokie Valley Asphalt Co

., Inc.,

Respondent

NOTICE OF FILING

PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the Pollution

Control Board the RESPONDENTS' MOTION FOR FINAL ORDER, a copy of which is hereby

served upon you.

/David S. ONel

December 12, 2006

David S. O'Neill, Attorney at Law

5487 N . Milwaukee Avenue

Chicago, IL 60630-1249

(773) 792-1333

PCB 96-98

Enforcement

FlIE

CLERK'S

CEIVED

OFFICE

DLC 1 2 2006

BEFORE THE ILLINOIS POLLUTION CONTROL BOARIOSTATEion

OF ILLINOIS

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

REC

CLERK'S OFFICE

Ep

PEOPLE OF THE STATE OF ILLINOIS,

)

D'C

1 2 2006

Complainant,

)

PCB 96-98

STATE OF

ILLINOi

,

Pollution Control

v.

)

Enforcement

SKOKIE VALLEY ASPHALT, CO ., INC .,

)

EDWIN L

. FREDERICK, JR ., individually and as )

owner and President of Skokie Valley Asphalt

)

Co., Inc., and RICHARD J. FREDERICK,

)

individually and as owner and Vice President of )

Skokie Valley Asphalt Co ., Inc.,

)

Respondents

)

RESPONDENTS' MOTION FOR FINAL ORDER

The Respondents, SKOKIE VALLEY ASPHALT, CO

., INC ., EDWIN L. FREDERICK,

JR., individually and as owner and President of Skokie Valley Asphalt Co

., Inc., and RICHARD

J

. FREDERICK, individually and as owner and Vice President of Skokie Valley Asphalt Co

.,

Inc.,,

by and through its attorney, David S . O'Neill, herein move this Board to dismiss with

prejudice the Complainant's Request for Attorneys' Fees and Costs and in support thereof states

as follows :

PROCEDURAL HISTORY

1 .

On January 15, 2004, the Complainant filed its Closing Argument and Post Trial Brief in

the above captioned matter along with a Motion to File Instanter which was required

because the closing argument was filed after the deadline for filing set by the hearing

officer's order . In the Closing Argument and Post Trial Brief, the Complainant failed to

ask for attorneys' fees with the specificity required under Illinois law and instead made an

ambiguous plea for "Complainant's costs and fees"

. (Complainant's Closing Argument of

January 15, 2004 at 48)

2.

On April 15

01, 2004, the Complainant filed its Closing Rebuttal Argument and Reply Brief

1

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which included a petition for attorneys' fees and costs

. (Complainant's Rebuttal

Argument and Reply Brief at 38 .)

On May 17, 2004, the Respondents filed a Post Trial Motion to Strike and Objections to

Complainant's Closing Argument and Reply Brief, in which, in part, the Respondents

objected to the Complainant introducing materials beyond the scope of rebuttal in the

filing including the petition for attorney's fees and costs

. Resp . Mot at 1-2 .

4.

In its Order of September 2, 2004 the Board failed to address the issue of whether or not

the Complainant could seek attorneys' fees if it had not raised the issue at hearing or in

closing arguments

.

In its order of September 2, 2004, the Board granted the Respondents motion to strike in

regards to attorneys' fees and costs

. (Order of September 2, 2004 .)

6.

Because the issue of attorneys' fees was not raised by the Complainant at hearing or in its

closing argument and because the Board granted the Respondents' motion to strike "that

portion of the People's reply that addresses attorney fees and cost exceed the scope of the

arguments made in the respondents' brief

. . ." (Id at 6 .) The issue of attorneys' fees and

costs was never the brought to the Board for consideration

.

7.

However, the Board somehow granted the Complainant's non-existent request for

attorneys' fees and costs (Id

. at 23) and in doing so the Board stated that it would

"withhold a decision regarding attorney fees and cost until the matter is fully

addressed by

the parties ." (Id . at 2) (emphasis added)

.

8.

On December 16, 2004 the Board contradicted its Order of September 2, 2004 by issuing

an order in which it stated that it would not hold any hearings on the issues of fees and

costs

. (Order of December 16, 2004 at 3) In doing so, the Board, without basis or

justification, denied the Respondents the right to fully address the issue of attorneys' fees

and cost that the Board had granted to the Respondents in the Order of September 2,

2004 .

9 .

April 7, 2005, the Board issued an Order in which the Board granted the Respondents'

motion for extension of time to allow for discovery . The Order states that "the Board will

grant the respondents additional time in order to conduct discovery

. . ." (Order of April 7,

2

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2005 at 3) . This Order again contradicts the Board's granting of the Respondents' right

to fully address the attorneys' fees and costs issues in the September 2, 2004 Order by

stating that "the Board grants the respondents' motion for extension of time to allow for

limited

discovery". (Id. At 1 . Emphasis added

.) In the Conclusion of the Order, the

Board "grants respondents' motion for extension of time and authorizes respondents to

conduct discovery on the attorney fees issue" . (Id at 4.). The Board also directed the

hearing officer to proceed to hearing as expeditiously as possible . (Id.)

10.

On

April 25, 2005, the Respondents filed with the Board the "Respondents' First Set of

Interrogatories Regarding Attorneys' Fees, Costs and Expenses", Respondents' First Set

of Document Requests Regarding Attorneys' Fees, Costs and Expenses", "Respondents'

First Request for Admission of Facts Regarding Attorneys' Fees, Costs and Expenses"

and "Notice of Deposition Regarding Attorneys' Fees, Costs and Expenses"

.

11 .

On April 19, 2005, Mr . Michael Partee, Esq . filed an appearance in this matter on behalf

of the Complainant. As such, Mr . Partee's costs and fees became potentially eligible for

recovery under the Complainant's petition for fees and costs and therefore subject to

discovery.

12 . In its Notice of Deposition, the Respondents requested that the Complainant produce Mr

.

Mitchell Cohen and Mr

. Bernard Murphy for deposition on June 24, 2005 pursuant to the

provisions of Section 2-1003 of the Illinois Code of Civil Procedure

.

13 .

The Complainant failed to produce either Mr . Cohen or Mr

. Murphy for deposition on

June 24, 2005 as required under Section 2-1003 of the Illinois Code of Civil Procedure

.

14.

On July 6, 2005, the Respondents filed a Motion to Strike Complainant's Objections to

Discovery and Motion to Compel Complainant's Response to Discovery Request in which

the Respondents requested the Board to strike Complainant's objections to discovery and

compel Complainant's responses to discovery and cooperation in scheduling depositions

.

15 .

On July 20, 2005, the Complainant filed a Complainant's Response to Respondents'

Motion to Strike Complainant's Letters of May 24, 2005 and June 14, 2005 Regarding

Discovery and Complainant's Motion for Protective Order and Response to Motion to

Compel Complainant's Response to Discovery Request .

3

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16. In its Order of November 11, 2005, the Board refused to uphold the People's objection to

discovery. (Order at 9 .) The Board allowed the Respondents thirty days from the date of

the Order to further respond to each objection

. The Board also stated that it would direct

the hearing officer to reserve ruling on the Respondents' Motion to Compel until the time

for additional response is lapsed . (Id .)

17 .

Consequent to the Respondent's filing of its further responses of December 19, 2005, the

Complainant filed a barrage of trivial motions in an attempt to avoid responding to the

Respondents' discovery request .

18.

In its order of September 7, 2006, the Board once again further limits the Respondents'

rights to fully address the issue of attorneys' fees and costs that it had granted to the

Respondents in its Order of September 2, 2004 by establishing a very limited pre-hearing

schedule for discovery and stating that no further discovery request would be allowed

.

(Order of September 7, 2006 at 8)

19

The Order of September 7, 2006 stated that Notices of Depositions needed to be filed by

October 31, 2006 . (Id.)

20.

In the Order of September 7, 2006, the Board clearly stated its intent to strictly enforce

the established timetable to complete discovery by stating

:

"All discovery activities must be completed on or before the dates provided

above ."

and

"The parties are notified that any failure to abide by the schedule set forth will

result in sanctions that may include the barring of testimony of the striking of

pleadings pursuant to Section 101

.800 of the Board's procedural rules ."

21

.

The Complainant failed to file and serve new responses to all of the pending written

discovery by September 19, 2005 as ordered by the Board .

19.

During a status hearing on October 5, 2006, the Respondents repeatedly requested that

the Complainant comply with the Board's order and file and serve new responses to all of

the pending written discovery that had been requested by the Respondents

.

20. The Complainant repeatedly stated to both the Respondents and the Hearing Officer that it

had no intention of complying with the Board Order of September 7, 2006 and would

not

.

be

filing and/or serving new responses to the pending written discovery that had been

4

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requested by the Respondents

.

21 .

On October 10, 2006 the Respondents filed a motion for sanctions with the Board based

on the Complainant's failure to comply with the discovery schedule established by the

Board in its Order of September 7, 2006 and the Board's statements in the same Order

stating that it would strictly enforce the established timetable

.

22.

On November 2, 2006, the Board issued an Order in which it denied the Respondents'

motion for sanctions .

23.

On October 18, 2006, the Respondents filed a Deposition Notice to Complainant

Regarding Complainant's Fee Petition

. In the Notice, Respondents requested to take the

discovery deposition of Mr

. Michael C

. Partee commencing at 2

:00 p .m. on Friday

November 10, 2006

.

24.

In the Order of September 7, 2006, the Board stated that Objections to Notices must be

filed and served by November 8, 2006

. Id.

25 .

The Complainant did not file an Objection to the Respondents' Notice to Deposition with

the Board prior to November 8, 2006 .

26.

The Complainant failed to produce Mr

. Partee for deposition on November 10, 2006 as

required under Section 2-1003 of the Illinois Code of Civil Procedure

.

27.

In the Order of September 7, 2006, the Board clearly stated its intent to strictly enforce

the established timetable to complete discovery by stating

:

"All discovery activities must be completed on or before the dates provided

above."

and

"The parties are notified that any failure to abide by the schedule set forth will

result in sanctions that may include the barring of testimony of the striking of

pleadings pursuant to Section 101

.800 of the Board's procedural rules ."

28.

On November 15, 2006, the Respondents filed a

. Second Motion for Sanctions based on

the Complainant's failure to produce a witness for deposition as required by the Board's

Order of September 7, 2006 .

29 .

Even with the limited discovery allowed the Respondents, there is a clear showing that the

Complainant does not have the evidence it requires to advance an argument for attorneys'

fees and cost in this matter

.

5

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LEGAL STANDARD FOR RECOVERING ATTORNEYS' FEES AND COSTS

30.

Section 42 of the Environmental Protection Act allows a court of competent jurisdiction

to award costs and reasonable attorneys' fees to the attorney General in a case where it

has prevailed against a party that has committed a wilful, knowing or repeated violation of

the Act

. (415 ILCS 5/42(f) (2002)) .

31 .

In all cases, only those fees which are determined to be reasonable are to be allowed

(Fiorito v. Jones

(1978), 72 Ill .2d 73, 377 N

.E.2d 1019; In re Estate of Healy (1985), 137

I11 .App .3d 406, 484 N

.E.2d 897)

32

The party seeking the fees bears the burden of presenting sufficient evidence from which

the trial court can render a decision as to their reasonableness

. (Ealy v. Peddy (1985). 138

ll1

.App 3d 397, 485 N .E.2d

1182)

33 .

The trial court has the discretion to determine what is reasonable in awarding attorneys'

fees . (Pietrzyk v

. Oak_Lawn Pavilion, Inc

. 329 IlI.App .3d 1043,1046, 769 N . E.2d

136,137

(2002) ;

Leader v. Cullerton (1976) 62 I11.2d

483, 343 N .E.2d 897)

34

The reasonableness of fees can not be determined on the basis of conjecture or by the

opinion or the conclusions of the attorney seeking the fees

(Flynn v . Kucharski (1974), 59

I11

.2d61, 319 N .E.2d

1 ; In re Marriage of Angiuli

(1985), 134 I11 .App .3d 417, 480 N .E.2d

513)

35 .

The petition for fees must specify the services performed, by whom they were performed,

the time expended thereon, and the hourly rate charged therefore

. (Ealy v. Peddy

(1985).

138 I11.App3d

397, 485 N

.E.2d 1182, Fiorito v. Jones (1978), 72 I11

.2d 73, 377 N .E.2d

1019)

36 .

The petitioner must present detailed records maintained during the course of the litigation

containing facts and computations upon which the charges are predicated

. (Flynn v .

Kucharski

(1974), 59111

.2d61, 319 N .E.2d 1)

37 .

If the documents supporting the fee petition lack foundation and are devoid of any

meaningful information to assist in determining the reasonableness of the fees charged,

they can not be the basis for determining the reasonableness of legal fees

. (Kaiser v .

6

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MEPC American Properties, Inc . 164 I1LApp.3d 978 (1987) 518 N.E

. 2d 424)

38.

The courts have no power to award costs and fees on merely equitable grounds

.

(Vincencio v . Lincoln-Way Builders, Inc . 204 Ill.2d 2959 (2003), 789 N.E.2d

290)

RESPONDENTS' MOTION FOR FINAL OFFER BASED ON COMPLAINANT'S FAILURE

TO SUBMIT SUFFICIENT EVIDENCE OF ATTORNEYS' FEES AND COSTS

39.

The evidence submitted by the Complainant fails to support the burden of presenting

sufficient evidence from which the trial court can render a decision as to their

reasonableness .

40.

The evidence submitted by the Complainant in support of its petition for fees fails to

specify the services performed and the time expended thereon .

41 .

In deposition testimony, witness Bernard Murphy was unable to review any of his time

records submitted as evidence of attorneys' fees and determine what work was performed

for the time listed (see Murphy's Deposition Transcripts of November 8, 2006 at page 29,

line 6, page 36, line 21, page 37, line 12 ; page 38, line 3

; page 38, line 16, page 35, line 4 ;

page 58, line 13 ; page 62, line 20, page 63, line 4; page 65, line 6

; page 72, line 9, page

72, line 12; page 76, line 7 and 13

; page 77, line 8,14 and 18 and page 79, line 11).

42.

In deposition testimony, witness Mitchell Cohen was unable to specify what work he

performed for the hours listed on his time records (see Cohen Deposition Transcript of

November 14 at page 33, line 20 ; page 34, line 9 ; page 36, line 12 ; page 48, linel2, page

52, line 12 ; page 53,line 13 and line 21 ; page 54, lines I and 8

; page 59, lines 11, 18 and

21 ; page 61, line 21 and 24 ; page 67, line 19 ; page 71, line 20

; page 93, line 1 ; page 95,

line 20, page 97, line 10 ; page 107, line 6 ; page 109, line 21 and page 110, lines 7, 11 and

22)

43 .

If the evidence available to support the Complainant's petition for attorneys' fees is so

lacking in detail of description of the work performed that even the attorneys that

prepared the time sheets and performed the work can not ascertain the actual work

performed and the hours committed to the work, it is unreasonable to expect the Board to

7

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be able to determine what is reasonable without conjecture or opinion .

44.

In deposition testimony, witness Mitchell Cohen admits that he does not remember if he

reviewed the receipts that supported the request for cost and fees of $5,574

.28 (see Cohen

Deposition Transcript of November 14 at page 20 line 17)

45 .

In deposition testimony, witness Mitchell Cohen admits that he changed the amounts of

the fees and the costs in the affidavits (see Cohen Deposition Transcript of November 14

at page 19, line 11) and that he never brought a motion to withdraw either affidavit even

though they contained conflicting information (see Cohen Deposition Transcript of

November 14 at page 221, line 20)

.

46.

The Board can not rely on this conflicting and incomplete evidence as the only evidence of

fees and costs before the Board in granting the Complainant's petition for fees and costs

and therefore, can not fees and costs on evidentiary basis

.

Wherefore, the Respondents respectfully request this Board to issue a final order with

respect to the Complainant's petition for attorneys' Fees and Cost and determine that no evidence

of fees and costs have been produced to allow the Board to reasonably determine the amount of

attorneys' fees and cost for this matter .

David S

. ONeill, Attorney at Law

5487 N

. Milwaukee Avenue

Chicago, Illinois 60630-1249

(773) 792-1333

8

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NOTARY SEAL

SUBSCRIBED AND SWORN TOME -this

I a++-h

CERTIFICATE OF SERVICE

I, the undersigned, certify that I have served the attached RESPONDENTS' MOTION

FOR FINAL ORDER by hand delivery on December 12, 2006, upon the following party

:

Mitchell Cohen, Esq

and Mr. Michael Partee, Esq.

Environmental Bureau

Assistant Attorney General

Illinois Attorney General's Office

188 W

. Randolph, 20th Floor

Chicago, IL 60601

OFFICIAL SEAL

RITA LOMBARDI

NOTARY PUBLIC -

STATE OF ILLINOIS

MY COMMISSION EXPIRES:0910&07

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BEFORE THE ILLINOIS POLLUTION CONTROL BOARD

PEOPLE OF THE STATE OF ILLINOIS )

by LISA MADIGAN, Attorney General)

of the State of Illinois,

)

Complainant,

vs .

No . PCB 96-98

SKOKIE VALLEY ASPHALT CO ., INC .,

an Illinois corporation, EDWIN L

FREDERICK, JR ., Individually and

as owner and president of SKOKIE

VALLEY ASPHALT CO ., INC ., and

RICHARD FREDERICK, Individually

and as owner and vice-president )

of SKOKIE VALLEY ASPHALT CO .,

)

INC .,

)

Respondents .

)

The deposition of BERNARD MURPHY, called

for examination, taken pursuant to the provisions of

the Code of Civil Procedure and the Rules of the

Supreme Court of the State of Illinois pertaining to

the taking of depositions for the purpose of

discovery taken before KELLY A

. BRICHETTO, CSR No .

84-3252, State of Illinois, Certified Shorthand

Reporter of said state, at 5487 North Milwaukee

Avenue, Chicago, Illinois, on the 8th day of

November, A .D . 2006, at 2

:30 p .m .

ORIGINAL

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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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(Witness sworn .)

MR . JAWGIEL : Mr

. Murphy, can you state your

full name for the record, please?

THE WITNESS : Sure . My name is Bernard J .

Murphy, Jr . Bernard is spelled B-E-R-N-A-R-D

.

Murphy is spelled M-U-R-P-H-Y .

MR . JAWGIEL : Let the record reflect that this

is the discovery deposition of Mr . Bernard J .

Murphy, Jr

., and it is taken pursuant to subpoena .

WHEREUPON :

B E R N A R D

M U R P H Y,

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 .

Did you receive a subpoena today, sir?

A .

Yes, I did

.

Q .

Also you received a fee for your,

subpoena fee I should say?

A .

I did receive a check for the mileage

fee, yes .

Q .

Are you represented by counsel today?

A .

I am not .

Can we go off the record for a second?

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MR . JAWGIEL : Sure .

(Discussion had off the

record .)

THE WITNESS : We had a brief discussion off

the record, and I was just stating to Mr . Jawgiel

and Mr . O'Neill and Mr . Partee that I no longer

represent the State in this matter . I represent the

Board of Education of the City of Chicago currently,

and I am bound by the rules or the Board of

Education's rules from representing anybody else but

the Board of Education .

Mr . Partee does not represent me in this

matter . I acknowledge that

. I think if he was

asked he would answer the same

.

I do consider myself to still be bound by

attorney/client and attorney work product privilege

rules to the extent that such privileged matter, to

the extent I was involved in such privileged matters

during the time I worked on the case at issue in

these proceedings .

Thank you

.

MR . JAWGIEL

: No problem .

Q

. Just so the record is clear, the case

you're referring to is the People of the State of

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Illinois versus Skokie Valley, et al .?

A .

Yes, sir .

Q .

Did you bring any documents with you

pursuant to your notice of subpoena for deposition?

A .

I did .

Q .

What did you bring with you?

A .

I brought a letter dated June 14th, 2005

addressed to David O'Neill that was authored by Mike

Partee and I was copied on . I brought the subpoena

that I was served with in connection with this

deposition and also has posted on, contains some

notes that I made concerning telephone calls I made

to Mr . O'Neill concerning that subpoena .

MR . PARTEE

: I'd like to point out real

quickly that the bottom line is we're here . The

point is it's actually a notice of deposition

. It's

called a subpoena on the document but it's not

actually a Board subpoena form that was issued by

the Board . It's really a notice of deposition, but

we're here . We're not contesting it .

MR . JAWGIEL : Okay .

THE WITNESS : Neither am I for that matter

.

MR

. JAWGIEL : Fair enough .

THE WITNESS : A . I brought a printout showing

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directions to this law office . I brought a copy of

a letter Mr . Partee sent to me dated November 2006

enclosing another witness fee check in connection

with the hearing set for December 12th, 2006

.

MR . JAWGIEL : Q . The State is a little less

generous, only $20?

MR . PARTEE : No mileage .

THE WITNESS : A . Just as I'm not contesting

any flaws in your subpoena, I'm not contesting any

flaws in theirs .

MR

. JAWGIEL : Q . Did you receive a subpoena?

A .

Yes . It's right here . I think that's

it . I believe that's it .

Q .

Looks like it .

A .

I also brought with a copy of the Board's

decision . I'm not sure when I printed it out but at

some point I did

. It's dated September, the

decision itself is dated September 2nd, 2004 . It's

been awhile since I looked at it

.

I also brought with a package of

materials that was sent to me by Mr . Partee . I've

got a binder clip on them

. I'll keep that on

. You

could go through them if you'd like

.

Q .

When did you receive the documents from

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Mr . Partee?

A .

Boy, I'd say it was maybe a week, week

and a half ago, two weeks ago, sometime in that time

frame .

Q .

I'm going to mark them as Group Exhibit

Number 1 just so we're clear .

A .

That's fine . That is all I have .

MR . JAWGIEL : Mr . Partee, have you brought any

documents with you?

MR

. PARTEE : I have .

MR . JAWGIEL : What have you brought?

MR

. PARTEE : What I brought is litigation

files from my file .

MR . JAWGIEL : Anything pertaining to

Mr . Murphy?

MR . PARTEE

: I think I have a copy of, I may

have a copy of a letter .

MR . JAWGIEL : Of this letter from November

1st?

MR

. PARTEE : Correct .

Other than that, I don't think I have

duplicate copies of what Mr

. Murphy just handed you .

MR

. JAWGIEL : What else do you have?

MR . PARTEE

: I've got some of my litigation

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files on depositions and discovery .

MR . JAWGIEL : Do you have time sheets for

Mr . Murphy?

MR . PARTEE : With me?

MR . JAWGIEL : Yes .

MR . PARTEE : I don't have --

no, not that I

know of

.

MR . JAWGIEL : Did you ever have time sheets

for Mr . Murphy that you're aware of?

MR . PARTEE : Well, I believe that time records

were disclosed during discovery .

MR . JAWGIEL : Time records, a summary of his

time?

MR . PARTEE : Correct .

MR . JAWGIEL : That's not what I'm asking for

.

Actual time sheets contemporaneous to when the

events occurred, did you have that at any point in

time?

MR . PARTEE

: Everything I have was disclosed .

MR . JAWGIEL : Is everything that you have with

respect to Mr . Murphy given to him in Exhibit Number

1?

MR . PARTEE : I'm not sure

. I'd have to review

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MR . JAWGIEL

: Sure .

MR . PARTEE : --

and compare it to my files .

MR . JAWGIEL : You don't remember what you gave

him?

MR . PARTEE : I do remember what I gave him,

but I'm not going to be able to confirm or deny that

today because I have to confirm this with files in

my office

.

MR

. JAWGIEL

: I see . As you sit here today

you don't know if you gave Mr . Murphy everything

that you have, is that fair enough?

MR . PARTEE : That's correct .

MR . JAWGIEL : With respect to Mr . Murphy

obviously .

MR . PARTEE : Yes .

MR . JAWGIEL

: I'm not asking the entire file .

MR . PARTEE : What I gave him were publicly

available information that was filed with the Board

.

MR . JAWGIEL : What would you consider not to

be publicly available information regarding

Mr . Murphy's available time in this matter?

MR . PARTEE

: Litigation files that he

generated when he was an attorney in my office

.

MR . JAWGIEL : Fair enough

. The work product,

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but that is not the billable time . I'm talking

about the actual time sheets, the recording of time,

the time that he spent . Is there anything that you

consider to be privileged?

MR . PARTEE : No .

MR . JAWGIEL : Fair enough . Then I'll have to

send you a 201 request, 201(n) request .

So just so we're clear, Mr . Partee, you

sent this to Mr . Murphy with the intention that this

was the most pertinent information you had regarding

his testimony limited to the attorney fee issue?

MR . PARTEE : Correct .

MR . JAWGIEL : Fair enough .

Q . Mr . Murphy, I'm not going to belabor

the point but in these documents

-- did you review

these documents in Exhibit Number 1?

A .

I looked through them

. There were many

of those I had no part in either generating nor did

it relate to me, so I did not spend a lot of time or

any time really going through those groups of

documents .

Q .

Fair enough .

A .

I did review again my CV that's in there

to make sure that it was accurate

.

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Q .

We'll talk about that

.

A .

I did, I looked at my affidavit and the

time record attached to it .

Q .

Any other documents you remember

reviewing?

A .

I looked through very quickly the written

responses to, responses to the written discovery

requests just to see if anything pertained to me

that I may, you might ask questions about here today

but that's about it .

Q .

the responses to written discovery that you thought

was pertinent to you?

A .

Not that I can recall

. I mean I looked

at them very quickly about a half an hour ago .

Q .

Did you find anything in your review of

I'm sorry . When did you say you received

Exhibit Number 1?

A .

About a week to a week and a half ago I

think was my testimony .

Q .

Fair enough . Now, Mr . Murphy, when you

were involved in the matter of the State versus

Skokie Valley, did you keep contemporaneous notes

regarding the time that you spent?

A .

At which period of time?

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Q .

From the time that you were first

involved with the case to the point that you

concluded your involvement with the case, and keep

in mind the case I'm referring to throughout the

course of this deposition will be the People of the

State of Illinois versus Skokie Valley .

A .

At some point I did both, keep track,

start to keep track of my time spent on this case

and also go back and calculate the time I spent on

the case prior to that .

Q .

How did you keep a calculation of the

time or keep track of the time that you spent on the

case?

A .

I would have kept track of that in

written notes, that once my time record was finished

or completed or my affidavit was finished and

complete I had, I would have either put it in the

file or disposed of it .

Q .

In your affidavit -- Strike that .

Do you know in this particular case did

you put them in the file?

A .

I don't recall .

Q .

You don't know either way?

A .

It's been over two years .

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Q .

Fair enough . Fair enough . When you did

your affidavit in preparation for the petition for

attorney's fees and other issues in the case, did

you insert the full description of the task that you

did based on your notes?

A .

I'm not sure what you mean by full

description . When I went through, when I prepared

the affidavit and when I went through it again

today, everything that I have in that summary is

accurate, but I don't know what you mean by the term

full description .

Q .

Well, maybe we can clarify that . Your

handwritten notes regarding the time that you spent

in this case have a more detailed description of

what you did during that period of time that you're

billing than what's in your affidavit or is the

description of what you did in your affidavit a

complete description of what you did at the time

based on your notes?

A .

I don't think it's either

. I think the

time record is a formalized and complete, finished

product of the notes I was generating about my time

.

My written notes would not have contained more

detail than the time record I submitted along with

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my affidavit .

Q .

Fair enough .

A .

Neither does the time record that I

submitted with my affidavit contain any inaccuracies

or fail to -- well, I'11 wait until you ask a

question

. But the answer to your question is, the

one you just asked was the notes I prepared would

have simply been something that I was using to

complete the time record that I attached to the

affidavit and would not have contained more detail .

Q .

Fair enough . So if we look to your

affidavit, we can look at the descriptors in the

affidavit and be confident that those are the best

descriptions that you have generated with respect to

the time you spent in this case, is that a fair

statement?

A .

Best written description probably .

Q .

Of course, you might have a recollection

reviewing it?

A .

Sure .

Q .

Fair enough I mean?

A .

If you showed it to me .

Q .

I understand that as well

. Okay . Let's

talk a little bit about your background

. We have a

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CV for you here . I'm mark to mark my copy of it .

I'm going to mark it as Exhibit 2 for anybody

keeping score . Is that your CV, resume, whatever

you want to call it?

A .

This is a copy of a CV that was current

at one time . It's not current now but it is, it is

a copy of one that was current at one time .

MR

. O'NEILL

: You have a copy in the file .

MR . JAWGIEL : Yeah, I have it here .

Q . What about it today needs to be

updated in order to make it accurate and current?

A .

Well, I suppose it would depend on the

purpose of the CV . I mean this doesn't describe

much of the work that I did at the job I had before

I joined the Attorney General's office, and it

certainly doesn't describe anything that I've done

since I left the office .

You were admitted to the Illinois Bar in

1991

; is that correct?

A .

Correct . November of '91 I was sworn in

.

Q .

All right . Your first position as an

attorney after you were admitted to the Bar was

where?

A .

It was with a firm whose name changed a

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few times over the period of time I was with that

firm, associated with that firm . The name of it is,

that I used on this CV was the Law Office of J

.

Patrick Donovan

. He was one of the partners who

owned the firm throughout the firm's existence, and

he was the sole owner at the time the firm closed

.

Q .

What type of work were you involved in

when you were with Mr . Donovan's firm?

A .

It was a variety of work areas that I was

involved in . Mr

. Donovan did a significant amount

of tort insurance defense work, all with some kind

of aviation theme to it . It could be a slip and

fall in an airport to a wrongful death case stemming

from a helicopter crash . He was also at one time a

hearing officer for the Pollution Control Board at

the time when the Pollution Control Board contracted

that work out . I did assist him in one or two

matters in his function as a hearing officer for the

Board .

Q .

We understand what Mr

. Donovan did . What

did you do when you worked for Mr

. Donovan's law

firm other than what you talked about, assisting him

in the Board matters?

A .

Well, in the aviation tort related

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matters I would do anything from answer written

discovery to depose witnesses, prepare witnesses for

deposition, motion practice . I did a significant

amount of research and writing .

Q .

Did you keep time sheets during that

period of time?

A .

I did .

Q .

What insurance providers were the

individuals whom you worked for through

Mr . Donovan's office?

A .

There were a number of them, and I can't,

I'd be guessing at their names right now . I want to

qualify the statement I made before, we did not

keep time sheets for the work for the Pollution

Control Board since that was contract work and not

done on an hourly basis .

Q .

Fair enough . The work that you did on

aviation aspects with Mr . Donovan's office would

have been on an hourly basis?

A .

It was .

Q .

Were you ever given the ABA guidelines in

billing?

A .

I can't recall if Mr . Donovan ever showed

those to me or if that was part of my training at

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the firm

. I do know that he did conduct training on

billing or his staff did so that I was billing in

the manner that the firm required .

Q .

Fair enough . Are you aware of the ABA

guidelines for billing?

MR . PARTEE

: I would object to relevance of

the ABA guidelines .

THE WITNESS : A . I would not be surprised if

they had some . I don't recall ever seeing them

before in my 16 years of practice .

MR . JAWGIEL : Q . Are you aware of any

guidelines regarding billing practices promulgated

by any organization or insurance company or anybody

else?

MR . PARTEE

: Objection, relevance .

THE WITNESS

: A . I would -- I think there are

ethical obligations that are set forth in the rules

of ethics, but other than that I, I'm not familiar

with or can't recall working with any other

guidelines promulgated by any other entity

.

MR

. JAWGIEL : Q . So it would be fair to say

that during your time that you were with the

Attorney General's Office the Attorney General did

not have a set of guidelines with respect to billing

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and reporting bills

; is that correct?

A .

Billing whom?

Q .

Well, keeping track of the time in a

billing statement to support an affidavit for a

petition for attorney's fees

. Did the Attorney

General's Office have any guidelines regarding what

you should or shouldn't put into a billing statement

to record the amount of time that you spent on a

case that you were going to petition for attorney's

fees, of course, if successful?

A . It's been some time since I looked at the

Office's policy and procedure manual . There may be

something set forth in there . I can't recall .

What I do remember is personal to my

effort, and that's really the only person I can

speak on behalf of

. I just made sure my affidavit

was factual and accurate . It's a conservative

estimate . My recollection is anywhere between half

or less than half of my time actually showed up in

that affidavit

. My time, by my time I mean the time

I spent on this case

.

Q .

What do you base that on?

A .

Well, I remember when I was putting the

affidavit together that I was conservative in the

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amount of time that I listed and I did that

consciously .

Q .

Why?

A .

Because I wanted a conservative statement

of my time in the affidavit .

Q .

How did you actually keep track of the

time you spent on any given task that's in your

affidavit?

A .

How did I keep track?

Q .

Right .

A .

Well, I think as I mentioned before

earlier in this deposition, I kept written notes at

some point keeping track of the time I spent going

forward and also calculating the time that I spent

before that point on this case .

Q .

So would it be fair to say that when you

made your notes regarding the amount of time that

you spent they weren't necessarily contemporaneous

to the event that you or the task that you had

performed?

A .

No, some were .

Q .

Some were ; some weren't?

A .

Some as I said were calculations of

historical time that I also said were conservative

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calculations .

Q

. Well, how much time was there between the

time that you gave the historical accounting and the

actual event or task?

A .

You'd have to show me something that

points out the dates .

Q . Sure . We have that . I'm going to show

you what I've marked as Exhibit Number 3, and this

is a document notarized September 16th, 2004 and I

believe to be signed by you . We'll ask you to

confirm that .

A .

That does appear to be my signature on

it, yes .

Q .

This is one of the affidavits that you

submitted in the case

; is that correct?

A .

One of the affidavits?

Q .

That is correct .

A .

It is an affidavit that I signed, and I

believe it was submitted in the case .

Q .

Now, you see on the second page, it's a

two-page exhibit, you see on the second page there's

dates, I believe a list of tasks and then a time

entry?

A .

Yes, sir .

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Q . Which one or which of those were done

historically?

MR . PARTEE

: I would object to the form of the

question on vagueness grounds

.

THE WITNESS

: A . Well, my best recollection

is that after the trial was done and we began to

prepare the written closing argument is when I

started keeping time, keeping track of the time that

I was spending in the office . I certainly kept

track of the time that I spent traveling to

destinations to prepare witnesses and then however

long it took to get back home from there, the time I

spent at trial, the time after the hearing, the day

of the hearing that I spent preparing back at the

hotel room . So I would guess, my best guess is that

right when we started traveling to prepare witnesses

and doing the trial work and then later when we were

preparing the closing argument when I was, at the

start of that process is when I began keeping track

of my time that I was spending on that . Then at the

same time I would have begun the process of

calculating the time that I spent prior to that .

MR . JAWGIEL

: Q . Now what date would you

believe that you started keeping contemporaneous

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notes with respect to the tasks you were performing

in this case?

A .

Well, like I said, it's my best

recollection that it would have been sometime around

October 17th or October 22nd, sometime in there .

Q .

So it would be fair to say before October

17th certainly those entries were done on a

historical basis based on your memory, is that a

fair statement?

A .

Well, I mean memory, perhaps reviewing

entries on the computer system we used for tracking

time or at least arranging meetings, scheduling

things, reviewing materials that I had put together

in connection with the trial, so it wasn't just

sitting at my desk and closing my eyes and

meditating on how much time I spent on different

tasks . It was looking at what was already in the

file, what I had prepared and preparing a

conservative estimate about how much time I spent on

each .

Q .

Let me ask you this question : You went

back into the file to make the entries before

October 17th, 2003 so you would know the dates that

you were at least involved in the file and to give

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yourself what you considered to be a value of the

amount of time you spent?

A .

Value?

Q .

Right .

A .

Time value, that's what you mean?

Q .

Correct .

A .

Well, maybe some context is helpful here .

I mean I was asked to, if I was available to help

out on this trial right around the October 3rd date

which would be about four weeks before the actual,

less than four weeks before the actual trial

started, and I was asked to assist because

Mr

. Sternstein had been disqualified from the case

by the Board . That's a very short period of time .

Q .

Well, my point is -- and I don't mean to

interrupt you

. I understand how you got involved in

the case . I do understand how you basically came in

at the eleventh hour and I understand that . My

point to you and my question to you really is is

that before October 17th, 2003 you did not make any

notes with respect to the actual time spent in the

tasks from October 3rd, 2003 through and including

the tasks of October 16th, 2003 --

A .

Well --

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Q .

-- is that a fair statement?

A .

My answer to that question earlier was

that's my best recollection . That's how I remember

these events lining up and what I did going back

three years now .

Q .

So it would be fair to say that when you

went back to review the file to determine the

entries for October 3rd, 2003 through October 16th,

2003 you did not review notes that you took

regarding how much time you actually spent for those

tasks?

MR

. PARTEE

: Objection, asked and answered .

THE WITNESS : A . As I said, I looked at what

was in the file, things I had produced or generated,

so I think that's my answer to the question

. I did

not look at a time sheet, no, that I kept .

MR . JAWGIEL : Q

. With respect to October 3rd,

2003, what pleadings did you review?

A .

Say that again, please .

Q .

Sure

. With respect to October 3rd, 2003,

it says pleading review, what pleadings did you

review?

A .

Again, this would be my best

recollection, but since I was assigned to this case

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1 in my first involvement with this case I would have

2 started with the complaint and answer and then the

3 other motions filed in the case as a starting point

4 to get familiar with the facts and legal issues .

5

Q . How much time did that take?

6

A . My affidavit says 2 .5 hours

.

7

Q .

What did you do for trial preparation

8 other than review the pleadings?

9

A .

Well, I would have considered anything I

10 did on that file from when I started until

11 conclusion to be trial preparation up until the

12

preparation of the closing statement .

13

Q . Fair enough .

14

A . So I --

15

Q . Other than reviewing the pleadings what

16

else did you do on October 3rd, 2003 in

order to

17 prepare for the trial?

18

A .

I can't recall specifically,

but I do

19

remember it probably would have taken a

half a day

20

to go through all the pleadings that were on that

21 old file at

that time

. i would not be surprised if

22

the only thing

I did was review the pleadings .

23

There could have been more

. I don't remember .

24

Q .

Why wouldn't you just review the most

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recent complaint and answer and any motions

pertaining to it?

MR . PARTEE

: Objection, argumentative .

THE WITNESS

: A . Are you telling me there are

amended complaints and amended answers?

MR . JAWGIEL : Q . I don't know .

A .

I don't recall .

Q .

So you don't know what was in the file as

you sit here today that you reviewed for two and a

half hours on October 3rd, 2003?

MR . PARTEE : Objection, argumentative .

THE WITNESS : A . That's not accurate .

I'm sorry .

MR

. PARTEE : That's okay .

THE WITNESS : A . That's not accurate . The

record is what it is

. I answered the question .

MR . JAWGIEL : Q . Okay . Can you tell me

specifically what motions you reviewed on

October 3rd, 2003?

A .

As I sit here today, I cannot .

Q .

Can you tell me what you reviewed as far

as pleadings other than the answer and

the

complaint?

A .

As I sit here today, I cannot, but it

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would be a fairly academic exercise to go back and

recalculate that since there would be file dates on

anything that was filed, and I did review the entire

file before I did the trial .

Q .

On October 6, 2003 you have document

review . What did you review specifically on

October 6, 2003 that took four hours?

A .

I --

MR . PARTEE : Let me ask some clarification,

and perhaps this is rhetorical, but you're asking a

witness what specific documents he reviewed more

than three years ago?

MR . JAWGIEL : Yes

.

MR . PARTEE : Okay .

MR . JAWGIEL : That's the reason why you keep

accurate records when you bill people .

Go ahead .

THE WITNESS : A . I generally use this term to

describe materials that have been produced by the

opposing party in litigation, everything your

clients would have produced in the case, everything

that Illinois EPA would have generated in the case,

both the privileged and the non-privileged materials

we would consider using as exhibits at trial, so

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that term document would include that . I use the

term document to draw a distinction between formal

pleading filed with the Pollution Control Board .

MR . JAWGIEL : Q . Do you remember what

documents you reviewed on October 6, 2003?

A .

Specifically no, but I can describe what

they would have been . They would have been

everything your client submitted to the Illinois EPA

that was included in Illinois EPA's file . It would

have been everything your client tendered to the

attorneys at the Attorney General's Office in

connection with the written discovery from that

case . It would have been every document EPA

included in the enforcement file that came up from

Springfield, and it would have been everything we

would have used as an exhibit at trial

.

Q .

It says here trial preparation next to

that . Did you do anything in addition to what you

just described in order to do trial preparation?

A .

No

. At that time that was plenty .

Q .

So trial preparation basically just is a

general category of why you're reviewing the

documents

; is that correct?

A .

My sense is I included the trial

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preparation statement to indicate that I knew that

the trial was coming . I knew what types of things I

typically do to get ready for a trial, and this was

not just a case of reviewing one motion to get ready

for the next status call .

Q .

Now, with respect to the entries from

October 3rd, 2003 through October 16th, 2003, when

did you generate those entries?

A .

You mean the entries on my affidavit?

Q .

Correct .

A .

I've already answered that question

.

Q .

Indulge me .

MR . PARTEE

: I'll object that it was asked and

answered

.

THE WITNESS : A . The record is what it is .

MR . JAWGIEL : Q . Sometime you said after the

hearing

; is that correct?

A .

No, that's not correct

. It's not what I

said, and the record is what it is

.

Q .

Okay . So you're not going to answer the

question?

A .

I've answered the question a number of

times already .

Q .

All right .

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A .

I think I'm the only one that's not

getting paid to be here today .

Q .

Do you know the specific date on which

you generated those entries?

MR . PARTEE : Objection, asked and answered .

THE WITNESS : A . The specific date, again,

yes, that was asked and answered .

MR . JAWGIEL : A . Do you know the specific

date, sir?

MR

. PARTEE : Same objection .

THE WITNESS : A . Mike, I've answered the

question .

MR . JAWGIEL : Q

. You don't, is that a fair

statement?

MR . PARTEE : Well, I think you're

mischaracterizing the testimony

.

MR . JAWGIEL : Q . When did you generate the

date for October 3rd, 2003, that entry, when did you

generate that entry?

MR . PARTEE : Objection, asked and answered

.

THE WITNESS : A

. My answer to this question

would not be any different than the other two or

three answers that I gave to the specific question

earlier in this deposition

.

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MR . JAWGIEL : Q

. And what is the answer to

this specific question I'm asking you because that

hasn't been asked?

A .

Well, in an effort to move this

deposition along, I'll repeat what I said earlier

.

At some point I began keeping track of my time as I

spent time going forward, and I also did a

calculation of the time that I had spent

historically

. I remember starting that process

right around the time we were going to begin to

travel to prepare witnesses for the trial and to go

to the trial ourselves, and it would have been

sometime around that point when I started keeping

track of the time going forward and calculating the

time I spent up to that point .

Q .

Let me

ask you this question then, sir :

When you first became involved in this case right

around October 3rd, 2003, were you aware that there

was, a potential petition for attorney's fees may be

submitted by the State in your experience?

A .

Yes .

Q .

So you knew from the get-go when you got

involved in this case that somewhere down the road

there was the potential that you were going to have

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to record your time and present it in an affidavit?

A . It was possible . It depended upon the

proof that we would have been able to get into the

record at the hearing .

Q .

Why didn't you record your time right

from the time you started with this case as opposed

to approximately two weeks later?

MR . PARTEE : Objection, asked and answered

.

THE WITNESS : A . Why?

MR . JAWGIEL

: Q . Correct .

A .

Well, there are a variety of reasons .

Number one, the case could have settled

. Number

two, we could have put on a case where the proof

wouldn't have shown that the State was entitled to

attorney's fees under the statute . Such was not the

case as it turns out . I had enough to do to

familiarize myself with the case to be as helpful as

I could to the first chair on the case to get ready

for trial in addition to juggling all the other

cases that I had at the time in my managerial

responsibilities, so in the initial process I think

those would have been the reasons why I didn't spend

the time keeping track of my time, every minute I

spent on this case

.

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As I said, at the end of the day, you

know, there's anywhere from half to a third of my

time that I actually spent on this matter that

showed up in this affidavit

.

Q .

When you reviewed the pleadings on

October 3rd, 2003, particularly the complaint, did

it pray for attorney's fees?

A .

You'd have to show me a copy of the

complaint in this case specifically but I remember

that as a --

MR . O'NEILL : The complaint or the --

I've got

it .

MR . JAWGIEL : No, I don't need to pull it

down . We'll pull it out later .

THE WITNESS : A . It was a standard operating

procedure for the Office to include that prayer in

every complaint that was filed

MR . JAWGIEL : Q . Fair enough .

A .

-- during the time I was there .

Q .

What's your understanding of how the

ethical rules guide the billing practices of

attorneys?

MR . PARTEE : I'm going to object on vagueness

grounds as to which ethical rules .

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MR . JAWGIEL : Q . You said that the code of

ethics applies to the billing . That's your only

knowledge of any sort of billing practices . I want

to know what's your understanding of how the ethical

code applies to billing practices?

A .

Well, I understand that there are many

ethical rules that relate to money passing from a

client to an attorney and from an attorney to a

client and trust funds and things like that . I have

never really been in a position of authority at a

private firm to monitor those kinds of things on

behalf of that firm, so what my approach simply was

both at the private firm I was at and in this matter

to be as factual, to be factual about the time I

spent on the case and what I was doing

. I think if

I did that that would satisfy any ethical obligation

that would apply to the situation

. That's what I

did .

Q

. Take a look at your entry for October

7th, 2003

. It says attend hearing and then trial

preparation?

A .

Um-hum .

Q .

What hearing did you attend?

A .

Well, as I look through this, the rest of

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the affidavit, I don't see any other reference to

telephone conference statuses that are conducted

with Board hearing officers on Board cases

. I do

remember I was present for one, possibly two or

three on this case before it went to trial, and

that's what that attend hearing reference would

apply to . It was --

Q .

Go ahead . I'm sorry .

A .

--

a telephone conference where we

assembled all the trial attorneys on this case in a

room, we spoke to the hearing officer, someone on

behalf of your clients, in fact, I think you were on

the phone as well at the time

.

Q .

Might have been . You would have only

billed the amount of time of the hearing in

relationship to your involvement in that telephone

conference?

A .

Well, the hearing itself was not a long

hearing .

Q .

How long was it?

A .

It was a matter of minutes, but the rest

of that day was as I was doing the days before --

getting familiar with the file, getting ready to put

on witnesses, learning the issues of the case

.

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We see that phrase again trial

preparation . Can you tell me what you did for trial

preparation outside of let's say the half an hour

for the hearing?

A .

Specifically I can't, but generally I can

describe that it would have been more of the same of

the first two days -- reviewing pertinent pleadings,

going through the written discovery, going through

the deposition transcripts if there were any

.

Well, did you complete your review of the

documents on October 6, 2003?

A .

Probably not because I remember --

I keep getting probably not, I don't

know, I think so

. But do you specifically have, do

you have a recollection whether or not you did? I'm

not asking you for probabilities

. I'm asking what

you remember

. Do you remember completing your

review of the file on October 6th, 2003?

MR . PARTEE : I think that's been asked and

answered .

THE WITNESS : A . I remember that I was not

complete in my preparation to put on the hearing on

October 30th and 31st

. No, I did not complete my

trial preparation on that date

.

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1

MR

. JAWGIEL : Q . So on October 7th, 2003 what

2 did you do

for trial preparation?

3

A .

As I said before, more of the same that I

4 did on the 3rd and the 6th

. There were pretrial

5

motions I believe that were filed in this case . I

6

might have been responsible for those

.

7

Q .

Did you draft

them at that time?

8

A .

You'd have to

show me them .

9

Q .

The date that they were drafted, that

10 would be indicated where on the document?

11

A .

Perhaps . I would have to see the

12 document .

13

Q . Fair enough . So you don't know as you

14 sit here today specifically what you did for trial

15 preparation on October 7th, 2003?

16

A .

Like I said, specifically, no,

but

17 generally yes .

18

Q . Did you review any of the pleadings again

19 on October 7th, 2003?

20

A . Well, Mike, I don't know how it is for

21 you to get ready for trial, but when I am new to a

22 case and the case

is fairly old I might have to look

23 at something once, twice, maybe three times before

24 all the dots start lining up for me . It's very

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possible I went back to review some of the pleadings

I did on the first day back on October 3rd . On

October 7th I went back and reviewed those that were

not reviewed on October 3rd

. I was reviewing things

that I looked at from the first day on all the way

through the trial all the way through the completion

of the written argument, closing argument .

Q . Now, during the time you were doing this

trial preparation up to the hearing date on October

30th or so were you coordinating your efforts with

Mr . Cohen?

A .

Absolutely .

Q .

What portion of the trial were you

responsible for?

A .

If you showed me the transcript I could

tell you which witnesses I was responsible for

putting on, cross-examining

. That would give me

some indication of what portion of the closing

argument I was assigned to draft

. I would need to

see things from the file

.

Q .

So if we look back at the hearing

transcript, the witnesses that you put on or

cross-examined and the participation that you had at

the hearing would be complete with respect to your

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involvement in what you needed to do in order to

prepare for the hearing?

A .

What do you mean by complete?

Q .

Well, we look back to it and we see,

okay, Mr . Murphy put on a witness . You obviously

needed to prepare to put on that particular witness?

A .

Yes

.

Q .

You maybe were involved in some of the

closing statements that were given at the conclusion

of the hearing or some of the statements given at

the conclusion of the hearing?

A .

Was there oral closing argument? I don't

think there was . I think there was just written .

That's my recollection .

Q .

There was written closing arguments given

at the end . There was also statements made at the

end as far as --

let me ask you this question : Were

you involved in the trial preparation for any of the

motions in limine in this case?

A .

You'd have to show me them, but I would

not be surprised if I was .

Q .

Were you involved in any of the other

hearing motions that were presented?

A .

Same answer

. I can't recall

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specifically

. I don't have a recollection

specifically, but if you showed me them that might

refresh my recollection and I might remember

.

Q .

The documents that you were involved in

generating for the hearing, would they have your

signatures on it?

A .

They could .

Q .

And they could not?

A .

Well, I was not the first chair of this

case

. I've done a number of trials . I did a number

of trials while I was at the Attorney General's

Office, and in most instances I was the second chair

helping out the first chair . I just defer to the

first chair about how they wanted to put the case

on, so if they wanted a certain task done I was

happy to do that task . I'd show it to them so they

were comfortable with what was going to get filed or

done at the hearing . If they wanted to sign their

name to it or add things to it,

I

was fine with

that .

Q .

So Mr

. Cohen was lead counsel in this

particular hearing?

A .

You know, he was after I got on it . I

can't recall whether he was before Mr . Sternstein

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was disqualified

.

Q .

Fair enough

. From the time you were

involved in the case Mr

. Cohen was the lead counsel?

A .

He was simply because, if he wasn't

already he was simply because he had spent more time

on the file than I had .

Q .

Did he have more experience, trial

experience than you at that time?

A .

At that time, I don't know how much trial

experience Mr . Cohen has had

. My sense was that,

yes, he did have more actual trial experience where

you're in front of a jury or a judge in a bench

trial and you're actually putting on a case

. My

sense is he did more of that than I did before we

did this .

Q .

Did he have more hearing experience of

this nature than you?

A .

What do you mean by hearing?

Q .

Going to one of the EPA hearings . Do you

consider this to be a trial?

A .

I considered it to be a final hearing

before the Pollution Control Board .

Q .

Did he have more experience on a final

hearing before the Pollution Control Board than you

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at the time the hearing was put on in this case?

A . You'd have to ask him

. I don't know .

Q .

Okay .

A .

I could tell you how much I had . I can't

tell you how much he did

.

Q .

How much did you have up to the date that

the hearing went forth?

A .

Okay . Let me sit here and see if I can

remember how many I did . Do you have a pen and a

paper so I can keep notes?

Q .

Sure .

A .

I'm 40 years old and the mind isn't what

it used to be . It helps .

Thank you .

(Brief pause .)

I'm coming up with five either trials or

final hearings before the Pollution Control Board .

There could have been one more . Of the five that

I've, that I'm recollecting, Skokie Valley was the

only Pollution Control Board final hearing .

Q .

You had jury trials before Skokie Valley?

A .

I second chaired one jury trial at the

job I had before I joined the Attorney General's

Office

.

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Q .

Any bench trial experience?

A .

I didn't have any bench, oh, well, I

didn't have any bench trial experience until I

joined the Office

. I just mentioned how many I did

there .

Q .

Was it within the count?

A .

I'm sorry, within the?

Q .

Within the count you gave?

A .

The five I mentioned?

Q .

Yes .

A .

Like I said, it's at least five, perhaps

one more I'm leaving out

.

Q .

Five or six?

A .

Right

.

Q .

Those bench trials would be within those

five or

six that you indicated?

A .

Yes .

Q .

Fair enough . On October 8th, 2003 you

have trial preparation

. Do you specifically

remember what you did on that date?

A .

Specifically no, but I just remember it

was quite a considerable task to be handed, at least

I thought so, maybe other attorneys wouldn't think

so, to be handed a file a month before trial with

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the amount of pleadings and discovery

that I

recollect were

done on that case to get ready for

trial and

at

the

same time carry all the other cases

that

I had

scheduled throughout

this

time period so

that

nothing,

you

know,

the Office didn't come up

short on any of those during that time period .

other than the Skokie Valley case during this time

period reflected on the affidavit?

A .

Well, I had managerial duties to some

extent during this time period, and I also had a

case load, an active case load that was as I recall

in the neighborhood of 30 to 40 cases, somewhere in

there .

time?

A .

Well, as the CV says, I assisted the

bureau chief in managing that bureau in her absence

.

I also had to execute certain tasks she gave me when

she was present

. Any of the attorneys that had

issues on their cases would come to me for advice

.

Sometimes I could help them

. Sometimes I could not .

Sometimes the issues were novel to me

. It was

somewhat of a routine thing to be assigned to a

Q .

4 .

How many other cases were you handling

What were your managerial duties at the

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matter that was somewhat pressing like this to help

out the people that are in it because they needed

help

. There weren't many trials assigned like that,

but there were contested hearings that I would go

over with the front line assistant to help them out

at that hearing

.

Q .

Were you given a title for these

managerial tasks that you did?

A .

Yeah, it's reflected on the CV, assistant

bureau chief .

Q .

Then were you supervisor of Mr . Cohen at

the time or his superior?

A .

I suppose on the org chart that's the way

it would reflect

. I mean he was an Assistant AG at

the time . Subsequent -- well, yes, he was an

Assistant AG at the time .

Q .

I think he's become a department head or

something along those lines?

A .

He's a bureau chief himself now, yes,

that's what I've heard .

Q .

Have you talked to Mr . Cohen at all about

your testimony here today?

A .

No .

Q .

Have you talked to him at all about the

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attorney's fee issue in this case?

MR . PARTEE : When?

MR . JAWGIEL : Any point in time .

THE WITNESS : A . I did when I was assisting

in the preparation of the closing statement and the

preparation of my affidavit and time record .

MR . JAWGIEL : Q . Did you coordinate your time

records with his time records?

A .

What do you mean by coordinate?

Q .

Make sure that you weren't overlapping on

tasks?

A .

What do you mean by overlapping?

Q .

Well, you were preparing for the same

witness that he was preparing for --

A .

Oh .

Q . --

or reviewing the same motion to do a

response that he was reviewing to do a response or

anything along those lines?

A .

My recollection was Mitch was very good

about discussing trial assignments in a way that was

productive and efficient and then executing on those

discussions, and I tried to stay within that

framework too because I did not want to do double

work

. I had enough to do as it was .

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Q .

Fair enough

. Did he lay that out for you

in some sort of written form?

A .

Written form, no, I don't think so

. I

think we would have taken notes because there was a

lot to do and a lot of assignments back and forth

.

I don't think he came up with a plan and asked me to

review it and sign off on it if that's what you

mean .

Q . I didn't ask you to sign off on it . But

did he give you any sort of written document that

would indicate what your responsibilities were with

respect to preparing for this hearing, the final

hearing in the Skokie Valley case?

A .

I don't recall specifically .

Q . So was it your recollection as you sit

here today that Mr . Cohen orally told you what you

were going to be doing?

A .

My recollection is he and I would have

discussed it . we would have discussed what each

witness would testify about . He would have had

knowledge about the subject matter of their

testimony . He would have probably suggested I take

one witness as opposed to another or something like

that to accommodate the fact that I was very new to

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the case but still be able to get stuff done to help

out to get the case done

. That's my recollection

about how it would have happened

. Since he knew the

case better my recollection is he would have

proposed something, and I just would have, it would

have been an iterative process back and forth

.

Q .

Did you have an understanding whether or

not you had any more expertise in any area that

Mr

. Cohen lacked or you had more trial experience

than Mr

. Cohen or anything along those lines from

your understanding of why you were brought in on

this case?

A .

Well, it wasn't Mr

. Cohen's decision to

put me in on the case .

Q .

Whose decision was it?

A .

My recollection was it was my bureau

chief's decision .

Q .

Who was that?

A .

Rosemarie Cazeau .

Q .

Did she explain to you why she wanted you

on this case?

A .

No . My recollection was they asked me to

come down to her office . They explained that Joel

had been disqualified from the case by the Board,

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1

and they asked me if I was available to

help out on

2 this trial, and I had just gotten done

with another

3 one in September that year, and I said

sure I'd help

4

out . I like doing trials .

5

Q .

Did you keep time sheets on the other 30

6 or 40 cases you had at the time?

7

MR . PARTEE : Objection, relevance

.

8

THE WITNESS : A

. What do you mean by time

9 sheets?

10

MR . JAWGIEL

: Q . Sheets recording the time

11 spent

on various tasks in those cases .

12

A . Some of them, yes .

13

Q .

Why no on the others?

14

A . They would settle . Maybe the violations

15 didn't support the request for relief

.

16

Q .

With respect to a case settling, you

17 wouldn't know that when you started the case, fair

18 enough?

19

A .

Correct .

20

Q .

So you would then have to go back if the

21 case didn't settle and recreate

what you did ; is

22

that correct?

23

A .

Well, I think I would have -- I'm sorry .

24

Can you repeat the question?

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(Requested portion of the

record read .)

If we're talking about in terms where

there was a finding in liability or there was a

judgment in favor of the State against the defendant

or respondent and the trier of fact had determined

that the State was entitled to attorney's fees, then

I would have done something similar to what I did

here, yes .

MR . JAWGIEL

: Q . I think we talked about

October 8, 2003 . I'm going to go to October 14th,

2003

. It says trial preparation, resolve discovery

issues

. Do you remember specifically what you did

for trial preparation on October 14th, 2003?

A .

Not as I sit here today

. If I saw some

documents, that might refresh my recollection

.

Q .

Fair enough

. Do you remember

specifically what you did to resolve discovery

issues on October 14th, 2003?

A .

Not specifically

. I remember vaguely

there were some that needed to be resolved

. I

couldn't tell you right as I sit here right now

without seeing the file what they were

.

Q .

On October 16th, 2003 you have review

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Board order . Is that the order that you brought

here today?

A .

I don't think it is, no

.

Q .

A different order?

A .

Yes, because that one appears to be dated

September 2nd, 2004 .

Q .

How long did it take you to review the

Board order?

A .

I'm not sure what Board order it was, but

my recollection was it wouldn't have been more than

12 or 15 pages, so it wouldn't have taken me more

than maybe half an hour, 45 minutes to do that .

Q .

When you review a Board order, what do

you do, basically read it?

A .

Yes .

Q .

Anything else that would fall under the

category of review Board order?

A .

It depends on what the order would say .

I mean if it was an order that said something that

might have affected how the final hearing went

forward, then I might go back to it two, three, four

times to make sure I had it right .

Q .

So you'd have to read it two or three,

four times?

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A . It also depends on how clearly it was

written, how clearly it was written and what it

might, what the different meanings in the Board

order might be that we'd have to account for

.

Q . When you calculated your time with

respect to reviewing the Board order, would you

charge for each time you reviewed it?

A . I don't think I did

. As I said before,

this is a very modest representation of the time I

spent on the file .

Q .

So in reviewing the Board order or

reading the Board order and possibly rereading the

Board order depending on the complexity and maybe

some vagueness in the order, anything else you do in

reviewing the Board order that falls under that

category?

A .

As I said, I don't think I charged for

rereading the order more than once . The trial

preparation, resolve discovery issues would have

accounted for everything else I did that day .

Q .

Do you charge if you have to review the

pleadings more than once after you've reviewed them?

A .

Do I charge? I don't charge anybody . I

didn't charge anybody for the work . we didn't

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charge any client for the work that we did at the

Attorney General's Office

.

Q .

Let me ask you this question : Do you

record that as time spent to review the pleadings if

you review them more than once?

A .

Say that again, please .

Q .

Sure

. Did you record the time spent to

review the pleadings more than once?

MR . PARTEE : I think you're assuming that he

did that, and I think you may be misstating

testimony .

MR . JAWGIEL : I'm not because he said later on

that he reviewed the pleadings possibly and trial

preparation again and that was an entry later in the

list here somewhere on October 7th, 2003, as a

matter of fact, actually on October 6th, 2003

. Of

course, the record that we've made today will

reflect that .

Q

. But my question to you is very

simply

: Do you record time that you spend in

reviewing the pleadings more than once?

A .

What I did was record the time I spent

getting ready for the hearing, and if it meant

reviewing something more than once to get ready for

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that hearing I might do

it .

I don't think

I would

have

reviewed a Board order more than once, but they

tended to be generally fairly clearly written and

addressed the issue squarely .

Q .

How about the pleadings?

A .

Well, I would have reviewed the pleadings

more than once, yes .

that?

spent .

Q .

Did you record your time as time spent

each time you reviewed the pleadings?

A . When you say record, what do you mean by

Q . Put it in your affidavit as time that you

A .

I think if you look at the balance of

this affidavit and the entries I have there it would

include whatever I did to prepare for the hearing

but a modest representation of that, so if I

reviewed the pleadings more than once to get ready

for the hearing, I might have it included in here, I

might not

. There's some of my time I don't have

included in this affidavit

.

Q .

How many hours did you bill on your other

cases on October 3rd, 2003?

A .

I have no idea as I sit here .

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MR . PARTEE : I would object on relevance

grounds too .

MR . JAWGIEL : Q . Do you have any idea how

many hours you spent billing on your other cases

from October 3rd, 2003 or any of the dates on this

affidavit?

MR . PARTEE : Objection, relevance . We're only

here to talk about Skokie Valley .

THE WITNESS : A

. My affidavit doesn't reflect

that . You haven't shown me anything that would

refresh my recollection of what happened three years

ago .

MR . JAWGIEL : Q . So when you spent time

allotments of 7 .5 hours and 9 1/2 hours, 14 hours,

it would be fair to say you didn't bill any other

cases, would that be a fair statement?

A .

Probably . There might have been some

other things I had to handle during that time . It

was not uncommon for me to spend 13 hours at the

office, 14 hours at the office sometimes when these

cases were about to go to hearing

.

Q .

Let me ask you this question

: At the

Attorney General's Office did you have to check in

when you came in for the day?

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A

. At some point there was a requirement

that we do that via computer

. I'm not sure when

that started .

Q .

Do you remember in October of 2003 did

you have to do that?

A .

I don't remember that .

Q .

Did you have a pass that you have to

swipe across, electronic security in order to get

into the office?

A .

I don't remember ever having something

like that to get in where our offices were

.

Q

. Did you have any sort of device or method

of recording how much time you were actually in the

office on any given day from October 3rd, 2003 until

the last date here, September 16th, 2004?

A .

It's been three years but I vaguely

remember there might have been a sign-in sheet where

you did it manually . It's three years now

. I can't

remember .

Q .

You would sign in when you got into the

office . Would you sign out for breaks, like if you

went to lunch or went out?

A .

I may have .

Q .

Were you supposed to is the question?

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A .

I can't recall what the office policy was

on that .

Q .

Were you required to sign out when you

left for the day?

A .

I think that's what the expectation was

on the part of our management, yes

. That's my

recollection . I could be wrong .

Q .

On October 16th, 2003 we have conference

with Sternstein and I believe that to be Mr . Cohen

just that the N was dropped off?

A .

Right

.

Q .

How long did that conference last?

A .

It could have lasted a very long time

because if you note from my previous entries I did,

there aren't many references or any references to

any conversations or meetings with Joel or Mitch,

Joel Sternstein or Mitch Cohen, so my recollection

is I jumped into the file as best I could . I did

not want to distract Mitch from his preparation

until I had questions that I worked up on my own and

I had acquired some kind of background knowledge of

the file before I troubled him with his time to sit

and explain things to me . That conference could

have took some time as they explained certain things

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about the case that I could not have gotten to in

the limited amount of preparation I had before that

.

Q .

Now at the point that you had this

conference on October 16th, 2003 you knew

Mr . Sternstein had been removed as the attorney from

this case by the Board ; is that correct?

A .

I don't recall the date of that order . I

don't recall what specifically the order said . I do

know that he was disqualified by the Board at some

point . I'm also not sure what else dropped off that

entry besides the N in Cohen's last name .

Q .

Are these entries more than one line?

A . I don't know if they are or not . What I

do see is the N in Mr . Cohen's name is missing, and

I'm wondering what else was, if there is anything

.

Q .

entries were as descriptive as you were with respect

to your tasks ; is that right, because there are no

missing letters and there's certainly enough space

to keep typing?

A .

They appear to be, but I don't recall how

this was put together as far as the mechanics went

.

Q .

Up to that point certainly all the

Did you actually draft this

--

A .

I could have .

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Q .

-- on the computer?

A .

Could have .

Q .

Was there any reason why you couldn't

give yourself more space if you wanted to add more

on to the entry for October 16th, 2003?

A .

I'm not sure looking at this what program

either I used or whoever drafted this used to put

this together, so I can't answer that question

.

Q .

Fair enough

. On October 17th, 2003 it

says file review

. Now if we compare that to the

entry for October 8th, 2003, there's no file review

there, just trial preparation?

A .

Right

.

Q .

Why would you have file review trial

preparation for October 17th, 2003 but not for

October 8th, 2003?

A .

I don't recall specifically

. It could

mean that I was not working with the file at that

point and I was working with transcripts of

depositions and preparing testimony, Q and A, that

type of thing .

Q .

You don't consider the transcripts to be

part of the file?

A .

I don't consider myself to be the last

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word of how to describe how someone gets, prepares

for a trial and the terms I use necessarily as terms

of art that apply to everybody .

Q . Well, let's figure out your definition of

what's considered the file

. What in your definition

is contained in the file?

A .

It would have been everything that came

up from Illinois EPA . It would have been everything

that was filed before the Pollution Control Board up

to that point

. It would have been all the discovery

that was exchanged between the parties up to that

point, anything that any of the attorneys or the

assistants that were on the file before I started

working on it had generated and put in the file .

I'm trying to recollect if there was anything else

but I think that covers the waterfront .

Q .

Do dep transcripts fall into your

definition of what's in a file?

A .

It could .

Q .

It could?

A . It could

. It depends on, it depends on

the meaning of the word I use at the time . I mean

there's no --

Q .

Well, let me ask you : At the time that

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you wrote this entry on October 17th, 2003 file

review, did the word file mean deposition

transcripts?

A .

It could have .

MR . PARTEE : That's been asked and answered .

MR . JAWGIEL : Q

. You don't know?

A .

I don't recall specifically

.

Q .

I see

. Then let me go down to

October 22, 2003 . Strike that .

Let's go back up to October 17th, 2003 .

You believe this might be where you started to make

contemporaneous notes with respect to what you did?

A .

Well, the record is what it is at that

point on that right now .

Q .

On October 22, 2003 you have trial

preparation?

A .

Correct .

Q .

Q .

What did you do for trial preparation

specifically on that date?

A .

I can't recall specifically

. Generally I

could tell you what my practice was, what I

recollect somewhat vaguely what I did back then but

specifically I can't recall

.

What I would like to know is what your

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actual recollection is as you sit here today that

you specifically did if you have

any recollection .

A .

My recollection is a general one, and I

think it's, my recollection is, jives with what is

here in the affidavit

. I would have started with

the pleadings

. I would have started reviewing

whatever else Illinois EPA sent up in referral

. I

would have moved from there to the motions, the

written discovery that was exchanged between the

parties

. I would have moved from there to the

deposition transcripts, probably throughout the

process going back to certain things that I looked

at before to answer questions I developed as I went

through these materials

. When we got to the days

--

let's see

. We're only about a week before the

hearing at that point

. What are we at, the 22nd?

Q .

Yes .

A .

Yeah, we're about a week before the

hearing at that point, and my practice was to have

every question I was going to ask, a question

scripted out legibly in a form I could read with the

answer that I expect from the written discovery or

the deposition transcripts together with the page

from the transcript where that answer should be or

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any other kind of proof that would allow me to

either refresh the witness's recollection or impeach

the witness if I got a different answer so that when

I was done preparing I would have that .

(WHEREUPON, there was a

brief interruption, after

which the following

proceedings were had

; to

wit :)

Q .

Go ahead, sir .

A .

My purpose was to have every question

scripted with the answer that the question should

have generated together with some kind of reference

back to the discovery where I could find proof of

that answer or corroboration of that answer and have

that ready to go when we got to trial or final

hearing

. Plus whatever I was supposed to do in the

way of pretrial motions, I would have that ready to

go . If I was assigned to do the opening statement,

I would have that scripted out and shared with the

other attorney on the team

. I can't recall who did

the opening in this case, but that is how I prepare

for trial and generally moving from the pleadings

through the written Q and A, and that would probably

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conclude my preparation once I finished that .

Q .

We understand your general ideas of how

you proceed forward in a case

. But as you sit here

today you can't give me specifics about what you

actually reviewed on October 22, 2003?

A .

Not based on my recollection, no, I

cannot .

Q .

That would hold true with respect

basically to all the entries regarding trial

preparation that we see here throughout the course

of the affidavit, you could not give me a specific

answer of what you did on that particular day?

A .

Other than prepare for this hearing, no,

I could not .

Q .

We have here travel to trial venue on

October 29th, 2003 ; is that correct?

A .

Correct .

Q .

What time did you leave to go to the

trial venue?

A .

You'd have to show me the form . That

would have to refresh my recollection . I do

remember that the hearing was in

--

Q .

Libertyville .

A .

Right, some public building in

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Libertyville

. That's a fair distance from where I

live .

Q .

Where do you live, sir?

A .

I live on the southwest side of Chicago,

and I live in the same location at the time of the

entry

.

Q .

What's your address?

A .

My address?

Q .

Yes .

MR . PARTEE : Were you leaving from home?

THE WITNESS : I was leaving --

you know what,

that's a good question . I'd have to see the form .

It would be set out on the form .

MR . JAWGIEL : Q

. The form would tell you?

A .

Right .

Q .

What's the form? What is it entitled,

this form?

A .

I don't remember what it's entitled, but

I do remember filling them out any time I had to

travel for Attorney General office business

. We had

the northern half of the state as our territory, and

we frequently filled out those forms when we

traveled .

Q .

As you sit here today you don't know

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whether you left from the office or you left from

home to go up to Libertyville on the 29th?

A .

The document would refresh my

recollection .

Q .

Do we have it? We'll take a look and

see .

A .

It should be listed there .

Q .

Is it called a travel voucher, is that

what it's called?

A .

That was one form we were required to

fill out . I'm not sure if that would have my

jumping off point from the journey and my

destination

. It may .

Q .

Let's take a look . Maybe you can help us

out with this

. Exhibit Number 4, this is a group

exhibit, travel expenses for Bernard Murphy for

Skokie Valley Asphalt . The second page is the

travel voucher . It indicates office there

; is that

correct, for the 29th?

A .

Yes .

Q .

Does that refresh your recollection?

A .

Yes, it does .

Q .

With whom did you ride, if anyone, from

the office to Libertyville that day?

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A . I didn't think I rode with anybody

. My

recollection is I went by myself in a car provided

by the Office .

Q .

Does it indicate what time you left?

A .

It does .

Q .

What time was that?

A .

9 :45 a .m .

Q .

How long did it take you to get up to

Libertyville from the loop?

A .

What this form says is 10 :30 a .m .

Q .

So about 45 minutes?

A .

That would be the difference .

Q .

Did you stay in a hotel when you went out

to Libertyville?

A .

My recollection is I did

.

Q .

Why?

A .

Well, because we were going to be

spending a significant amount of time in the morning

getting ready for the hearing on the days that the

hearing was going to be conducted

. We'd be spending

a significant amount of time after the hearing going

over what happened that day and preparing for the

next day

. It was not my practice to travel back to

my home and from my home during the days a trial was

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going on because you never know what's going to

happen . You need to be where the trial is happening

so that the trier of fact can expect you're going to

show up and prosecute the case . I mean I think

everyone here would agree it wouldn't look too good

if an attorney didn't show up the day a trial was

scheduled, so it was my practice to stay near where

the trial was being held so I could ensure that that

happened .

Q . At the time that you decided to get a

room up in the Libertyville area did you have an

expectation of how long the trial or hearing was

going to last?

A .

I think -- well, the affidavit shows that

it lasted two days, and my recollection is we

thought, Mitch and I thought it would be a two-day

hearing based on the number of witnesses we had and

the documents we had to get into evidence . We did

not know at the time what your case would consist

of, but we had a rough estimate of what ours was,

and it ended up sticking to two days

.

Q .

You had no idea what the respondent's

case was going to be even though you reviewed the

discovery?

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A .

I knew generally what the issues were,

and I know what, I knew what the, your clients said

in their depositions, but I had no idea what tactics

you or Mr . O'Neill would employ at the hearing, no .

Q .

Well, you also had a disclosure of

witnesses --

A .

Right .

Q .

--

that we were going to present?

You had the depositions of the experts

that we were going to present?

A .

Yes .

Q .

You had all of that, did you not?

A .

I did, but I did not have any script of

the Q and A that you prepared if you did prepare

some for your witnesses, and I had no idea prior to

the hearing how long you or Mr

. O'Neill would take

with each witness or the cross-examination of our

witnesses .

Q .

I see

. How many rooms did you rent when

you went up to Libertyville?

A .

Myself?

Q .

No, the Office of the Attorney General

.

A .

I'm only aware that the Office

--

well,

the Office didn't rent any

. I rented one for

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1 myself . I paid for it on my credit card and then

2 submitted for reimbursement

on that, I believe . I

3 think that's the way it worked

. I could be wrong .

4 They might have changed the process at some time .

5

That's my recollection .

6

Q . Did Mr . Cohen have his own room?

7

A . He did not share mine .

8

Q . Did Mr . Saperstein have his own room?

9

MR . PARTEE : You mean Sternstein .

10

MR . JAWGIEL : I apologize . Thank you .

11

Q . Mr . Sternstein, did he have his own

12

room?

13

A . I don't recall if Mr

. Sternstein stayed

14 overnight .

I don't know if he did . I have no

15

knowledge of that .

16

Q .

So it would be fair to say when you

17

headed up to Libertyville on October 29th, 2003 you

18

were not prepared for the hearing --

19

MR . PARTEE : Objection

.

20

MR . JAWGIEL : Q . --

is that correct?

21

A .

I would answer that question by saying I

22 had done some preparation

. I wanted to do more

. I

23 think this was

going to be --

that day we spent

24 preparing our

witnesses

. We had our Q and A drawn

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up, and we were probably going through that with

them to get ready for the hearing

.

Q

What witnesses did you prepare on

October 29th, 2003?

A .

You'd have to show me the transcript from

the hearing

. That may help refresh my recollection

.

Q .

You don't as you sit here today

specifically remember who you prepared?

A .

No .

Q .

Did you prepare witnesses with Mr

. Cohen,

the same witnesses?

A .

I can't recall specifically

. Because of

the short time frame I had to get ready for the

trial or the hearing I would not have spent a lot of

time with Mitch while he prepared for his

responsibilities for that . I would have been

focused on getting ready for mine . It's possible I

could have spent some time with him when we were

both together that day with whatever witnesses we

were talking to but, again, I can't recall

specifically .

Q .

There's certain phone charges here for

October 29th -- of course, I'll hand this to you so

you can see .

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A .

Sure .

Q .

--

and also for the 30th and 31st

. Are

any - -

A .

Which page are we on?

Q .

We're still on the second page of Exhibit

4

. Are any of those telephone conversations in the

affidavit you provided?

A .

No, but they would have fallen under the

description trial preparation

.

Q .

All of them?

A .

Not all of the calls

. Not all the calls

I made were business related

.

Q .

Did you exclude any of those from the

voucher you submitted?

A .

My recollection just going through the

papers that Mr . Partee forwarded to me is that I

did .

Q .

How did you do that?

A .

You'd have to show me the form

.

(Documents tendered to

witness .)

Does this go with Group 1?

Q .

Yes, it does

. That's the back end . Go

ahead . If you can find it .

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A .

You're asking about the telephone record

and how I broke out

--

Q .

How it was excluded, yes .

A .

Can I just look at this one? It might

even be on that .

Q .

Well, I'll take a look at it and see if

it's there .

A .

That appears that --

Q .

This might be it .

A .

If that's mine . I don't know if that's

Mitch's or --

Q .

Yes, it looks like it has your name on

there .

So the two that are circled are business

related ; is that correct?

A .

That's what this indicates, yes .

Q .

And the rest of the conversations were of

a personal nature obviously?

A .

They were .

Could we go off the record for a moment?

Q .

No .

MR . PARTEE : Well, if you're not comfortable

asking something for privacy reasons then you don't

have to .

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THE WITNESS :

Okay .

MR .

JAWGIEL : Q . Who

did you speak to in the

business conversations?

A .

Well, the one number I don't recognize,

662-1100, and it's not my, it doesn't appear to be

my handwriting at the top that says it's business

related . It could be

. I could have wrote it in a

hurry, but it does not appear the way I would write

it .

The second one is business related, that

is circled is business related

.

Q .

Do you recognize the number?

A .

I do recognize the number

.

Q .

What number is that?

A .

I'm not going to disclose it .

Q .

Why is that?

A .

Because I have privacy issues related to

that number .

Q .

Privacy issues related to the number?

A .

Correct .

If we go off the record, I'll be happy to

discuss those with you

.

MR . JAWGIEL

: Okay . Let's go off the record .

McGUIRE'S II

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(Discussion had off the

record .)

Q

. I think we're on the 29th

. Let's

jump up to the 28th, October 28th, 2003

. Pretrial

preparation, is that any different than your trial

preparation?

A .

Well, this says conduct pretrial, so I'm

wondering if there was a pretrial conference before

the final hearing

. I can't recollect, but that's

why I would typically use that kind of term

.

Q .

what was done specifically in the

pretrial preparation?

A .

I don't know . You'd have to show me what

the pretrial consisted of .

Q .

Was it anything different than the trial

preparation that you did before?

A .

As I said, I don't know if there was a

pretrial done in advance of the final hearing or if

that just refers to what we were doing two days

before the hearing started or a day before . I think

the trial started on the 30th

.

Q .

Right .

A .

So that would have been two days before

the hearing . It could have been a formal pretrial

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with the hearing officer

. It could have just been

more trial preparation

. You'd have to show me some

kind of document relating to that day whether there

was a pretrial that would refresh my recollection

.

Q .

Well, how about the next entry on the

28th, it says conducted pretrial, does that refresh

your recollection there was a pretrial that day?

A .

Not completely

. I mean that suggests to

me that there was a separate either telephone

conference or some kind of hearing with the hearing

officer before the trial started

.

Q .

Can you tell me how much time was spent

by you in the pretrial preparation?

A .

Not without you refreshing my

recollection about what it was about

.

Q .

Can you tell me how long the pretrial

itself lasted?

A .

Same answer .

Q .

Can you tell me what the differentiation

is between pretrial preparation from trial

preparation which is the last phrase entered on

October 28th, 2003?

MR . PARTEE

: I would object that's been asked

and answered .

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THE WITNESS : A . I think I've answered that

question

.

MR . PARTEE : Mike, I know that you have to try

to test the witness's memory here, but we're going

back more than three years . After you've done that

if there's documents that you could use to get the

answer that you want and refresh his recollection, I

would encourage you to use them because this is a

long time ago .

MR . JAWGIEL : Q . How would we figure out what

documents to use in order to refresh your

recollection regarding what you did in trial

preparation, any of the trial preparation entries

that are on this affidavit?

A .

The trial preparation entries?

Q .

Yes .

A .

You could show me the hearing transcript

.

You could show me the written closing arguments .

You could show me whether there was any written

opening arguments or statements

. You could show

me --

Q .

Maybe I'm not clear .

A .

I was only midway through the answer to

that question . If you want to change it, go ahead

.

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Q . If I go to October 22, 2003 and I want to

refresh your recollection of what you did for trial

preparation on October 22, 2003 with documents, how

do I go about doing that?

A .

You'd have to show me the file on it

.

You'd have to show me the transcripts

.

Q

. If I show you the entire file, you're

confident as you sit here today that you can tell

what you did on October 22, 2003 with respect to

trial preparation?

A .

It depends

. It depends on what's in

there .

Q .

me

So we need the documents contained in the

Attorney General's file in order to determine what

you did on October 22, 2003?

MR . PARTEE : No .

THE WITNESS

: A . No, not all of them .

MR . PARTEE : You've turned this into a mockery

already . We're not going to reopen written

discovery or create a situation where we're going to

reopen written discovery . There's a written docket

of this entire case that's available

. There are

dockets . The docket is all publicly available . You

have it . -We filed some of it

. You filed some of

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it . That's what we're talking about . We're not

talking about attorney/client materials . We're not

talking about materials that haven't been produced

yet .

MR . JAWGIEL

: Let's find out from the witness .

Q . If I get the documents that are

available on line or whatever the case may be and I

hand them to you, do you believe that that will

refresh your recollection or do you need the file

from the Attorney General's Office?

A . No, I think you could -- anything that

was filed with the PBC would help

. Anything, the

copy of the final transcript would help, but even

with those, if you want me to say which minute of

that day I was spending on which item, I don't think

I could do that as I sit here today

.

Q .

You wouldn't know what you did different

on October 22, 2003 from October 23rd, 2003 or

October 24th, 2003 on those specific days if I hand

you the file?

A .

When you say the file, the PBC's file or

the Attorney General's file?

Q .

Let's start with the PBC's file .

A .

It could .

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Q .

It could?

A .

It could .

Q .

How so? What would we look for that

would tell you, hey, you know what, on October 23rd,

2003 Mr . Murphy did X as opposed to what he did on

October 23rd, 2003 or October 24th, 2003?

A .

Oh, I understand your question .

Differentiating between those two days, I'm not

sure, as I sit here right now I don't know what

document in the PBC's file would refresh my

recollection . Whether there's anything in the

Attorney General Office's file that would do that I

don't know, but as I stated at the outset I've not

been authorized to relinquish or waive attorney work

product privilege . My preparation notes, anything I

did to prepare for this hearing that I generated

would be work product, and I'm not authorized to

relinquish that privilege .

file?

Q .

You believe that they're still in the

A .

I have no idea .

Q . So as you sit here today you don't know

whether or not the Attorney General file would even

refresh your recollection because you don't know if

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your notes are in there, is that a fair statement?

A .

I don't know how to answer that question .

I mean I haven't seen that file in three years .

Q .

Other than looking at your notes if

they're in the Attorney General's file what else do

you believe would refresh your recollection about

the specific tasks that you performed on October 22,

2003 as opposed to October 23rd, 2003?

A .

I can't even recall if any of the notes I

prepared to get ready for the trial I kept after it .

I can't tell you whether I discarded those things

going back three years ago .

Q .

Sure . Sure . But my question to you is :

Outside of your notes is there anything specific

that we can look to in the Attorney General's file

that you believe would refresh your recollection

about what you specifically did on October 22nd as

opposed to October 23rd as opposed to October 24th

as opposed to October 25th or October 27th?

A .

I would have no idea . I would have no

idea

. I mean I can't recall what I did with my

preparation notes

. I don't have any knowledge what

anybody did with those notes, if they

were still

around after I left the office . I have no idea

.

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Q .

So it would be fair to say what's in

Exhibit Number 1 certainly didn't refresh your

recollection regarding what you did on October 22,

2003 as opposed to October 23rd as opposed to

October 24th because you've reviewed that file and

you can't tell us as you sit here today what you

did?

A .

From one second to the next on those

days, no, I can't but generally --

Q .

I'm not asking you generally .

A .

Fine . Then you've got your answer .

Q .

Yes, I do .

A .

From one second to the next, no .

Q .

How about one hour to the next?

A .

Well, then you start getting into

something where I think I might know because I would

know looking at the transcript of the hearing which

witness I had to prepare for

. I can tell as I move

through this affidavit and the

entries here how I

was doing it, and it was consistent with the way I

would prepare for any trial I got ready for, so one

hour to the next you're starting to get into the

range where I could tell you .

Q .

You certainly can't do it based on what's

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in Exhibit Number 1 though?

A .

What's 1?

Q .

Right to your left .

A .

Group 1 here?

Q .

That's correct .

A .

Well, this doesn't contain the

transcript .

Q .

That's not my question . My question to

you is

: Based on Exhibit Number 1 you can't tell us

what you did from hour to hour ; is that correct?

A .

Correct .

Q .

That's all I'm asking you

.

A .

Correct .

Q .

With respect to what you did from hour to

hour or whatever the case may be, you would have to

look back at the transcripts and things of that

nature?

A .

Right . That's even if -- and other

things as I mentioned .

Q .

What are the other things? That's what

I'm trying to pin down .

A .

Well, we talked about my preparation

notes .

Q .

If they're there?

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A .

If I kept them after the trial .

Q .

Fair enough . When you prepare your time

listing attached to your affidavit you have

anticipation or at least you have some expectation

that somewhere down the road it's going to be

reviewed by a court or a hearing officer or somebody

in an authoritative position over the outcome of the

case ; is that correct?

A .

Over the outcome of the fee petition,

correct .

Q .

Fee petition?

A .

Right . I had no understanding that

either, anybody would go through the lengths that

you and Mr . O'Neill have with something like this

though

.

Q .

Have you ever submitted a fee petition

with a similar type of an accounting of your time

and have it rejected by any hearing officer or

court?

A .

Not only have I not ever had it rejected

by anybody I've never had an opposing counsel

question it, especially when I was the one that had

the least amount of time of the trial team that put

it together

.

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Q .

How often have you in the five cases that

you've brought to conclusion through a hearing

officer, bench trial, jury trial have you submitted

a fee petition?

MR . PARTEE : Objection, relevance . We're here

to talk about Skokie Valley .

THE WITNESS : A . It certainly happened in

addition to Skokie Valley

. Skokie Valley was not

the only case that I was involved with where I did

that

. How many of the five or six that I did that,

I couldn't tell you . At least one other, and I

wouldn't know which one that was, but I do recall

doing this before .

MR

. JAWGIEL : Q . I see . So at least one

other case your fees were submitted . Do you know if

it was more than one?

A .

Could be .

MR . PARTEE : Objection, relevance

.

MR . JAWGIEL : Q . Was it all six?

A .

I don't recall . I'm not sure

.

Q .

How would we find out?

MR . PARTEE

: Objection, relevance .

THE WITNESS

: A . I have no idea

.

MR . JAWGIEL : Q . So it's somewhere between

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1 one and five?

2

A .

Well, like I said, I think I did between

3 five or six trials or final hearings . It would be

4 somewhere between one and that, yes .

5

Q .

You charge to prepare the affidavit and

6 statement of hours ; is that correct?

7

A .

Yes, but I'm not charging for today's

8 time if you're concerned about it .

9

Q .

You charged one hour to prepare this

10

two-page document?

11

A .

Which entry are you looking at?

12

Q .

I'm looking at April 12th, 2004,

13 preparation fees affidavit and statement of hours,

14

is

or

different

that a

affidavit?

15

A .

That's a fair question . I can't tell

16

from this affidavit .

17

Q .

How many affidavits did you prepare in

18 the Skokie Valley case?

19

A .

I don't recall without seeing them

.

20

Q .

I marked this as Exhibit Number 5 . Now

21

Exhibit Number 5 is dated April 12th, 2004 ; is that

22 right?

23

A .

Yes, or actually the notary says April

24 13th .

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Q .

Oh, okay . It's your signature on that

document ; is that right?

A .

It appears to be .

Q .

Now that's a two-page document as well ;

is that right?

A .

You're talking about Exhibit 5?

Q .

Correct .

A .

The copy I've been shown is, yes .

Q .

Are you aware or do you have recollection

of more pages than what's been given to you in

Exhibit 5?

A .

I do not .

Q .

You charged an hour of time to prepare

Exhibit Number 5

; is that right?

A .

You're referring now to the entry on

Exhibit 3?

Q .

That's right, from April 12th, 2004 . You

indicated you spent an hour, preparation of fee

affidavit and statement of hours?

A .

Yes .

Q .

What did you do in order to prepare that

document?

A .

Well, it would have been drafting this

affidavit myself or using one that Mitch had

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prepared for his and then tailoring this for mine

.

I typically did most of my own word processing,

drafting documents, anything like that

. There were

secretaries there that were available to us, but my

practice was to do my own . I found it somewhat

quicker to do that

. By doing this I actually saved

the amount of time I guess that I would have spent

on it . I would have drafted the summary attached to

it . I would have drafted the affidavit as I said .

I would have gotten the affidavit notarized, and I

would have as the entry indicated finalized the,

yeah, finalized the entries on the references to

time, the month and the summary of work performed .

Q .

How did you come to the figure that's in

Exhibit Number 5?

A .

Which figure?

Q .

The total amount of hours spent .

A . Well, it would have, just looking at the

face of Page 2, it would have been a compilation or

it's the sum of the three rows above without doing

the math .

Q .

But how did you come to the total amount

of hours spent?

A .

Total amount?

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MR . PARTEE : Objection, asked and answered

.

THE WITNESS

: A . Yeah, we've added the three

rows above it .

MR . JAWGIEL : Q . Okay . Fair enough . How did

you come to the amount of hours spent for the month

of October for trial preparation, travel and trial?

A .

Well, that's probably a summary of

everything I've got more specifically stated on Page

2 of Exhibit 3 .

Q

.

Well, Page 2 of Exhibit 3 was drafted in

September of 2004 . My question to you is : In April

of 2004 which is when this affidavit at least was

notarized how did you come to the calculation of

125

.5 hours for October of 2003? How did you arrive

at this figure?

A .

The same way I did Page 2 for Exhibit 3 .

Q .

Which was?

A .

I've answered that question . I mean

these are not different hours

.

Q .

They're not?

A .

No .

Q .

So you went back and calculated your time

-- let's ask you this question

: In April of 2004 is

that when you calculated the time for entries from

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