1

ILLINOIS POLLUTION CONTROL BOARD

DECEMBER 12, 2006

IN THE MATTER OF:

)

THE PEOPLE

)No. PCB 96-98

)

vs.

)

SKOKIE VALLEY ASPHALT

)

TRANSCRIPT OF PROCEEDINGS held in the

13 above-entitled cause before Hearing Officer

14 CAROL WEBB, called by the Illinois Pollution Control

15 Board, pursuant to notice, taken before Denise A.

16 Andras, CSR, a notary public within and for the

17 County of Cook and State of Illinois, at

18 the James R. Thompson Center, 100 West Randolph,

19 Chicago, Illinois, on the 12th day of December,

20 A.D., 2006, commencing at 1:00 p.m.

L.A. REPORTING (312) 419-9292

1 A P P E A R A N C E S:

ILLINOIS POLLUTION CONTROL BOARD:

Ms. Carol Webb, Hearing Officer

5 OFFICE OF THE ATTORNEY GENERAL

STATE OF ILLINOIS

6 ASSISTANT ATTORNEY GENERAL

ENVIRONMENTAL BUREAU NORTH

7 BY MR. MICHAEL C. PARTEE

188 West Randolph, 20th Floor

8 Chicago, Illinois 60601

(312) 814-3374

Appearing on behalf of the complainant;

11 BY MR. MICHAEL B. JAWGIEL and

MR. DAVID S. O'NEILL

12 5487 NORTH MILWAUKEE AVEUNE

CHICAGO, ILLINOIS 60630-1249

13 (773) 792-1333

Appearing on behalf of the respondent.

L.A. REPORTING (312) 419-9292

HEARING OFFICER WEBB: Good afternoon.

My name is Carol Webb. I'm a

hearing officer with the Pollution Control

Board. This is PCB 96-98, People vs. Skokie

Valley Asphalt. It is December 12, 2006, and

we are beginning a little before 1:00 p.m.

thanks to Amtrak. I will note that there are

no members of the public present, although

members of the public are allowed to provide

public comment if they so chose. Today's

hearing is limited to issues of the

reasonableness of the People's attorneys'

fees and cost. You should know that it is

the Pollution Control Board and not me that

will make the final decision in this case.

My purpose is to conduct the hearing in a

neutral and orderly manner so that we have a

clear record of the proceedings. I will also

set the credibility of any witnesses on the

record at the end of the hearing. This

hearing was noticed pursuant to the Act and

the Board's rules and will be conducted

pursuant to sections 101.600 through 101.632

of the Board's procedural rules.

L.A. REPORTING (312) 419-9292

At this time I'd ask the parties

to please make their appearances on the

record.

MR. PARTEE: Michael Partee on behalf

of the People.

MR. COHEN: Mitchell Cohen on behalf

of the People.

MR. O'NEILL: Michael Jawgiel on

behalf of the respondents Skokie Valley

Asphalt Company, Edwin L. Frederick, and

Richard J. Frederick.

MR. O'NEILL: David S. O'Neill on

behalf of the same respondents.

HEARING OFFICER WEBB: Thank you. Are

there any preliminary matters to discuss on

the record?

MR. JAWGIEL: First I'd like to make a

motion in limine renewing our motion for

sanctions against Mr. Partee for his failure

to attend his discovery deposition. He did

identify himself in the answers to

interrogatories filed on May 24, 2005 as a

witness at this hearing. We did notice his

deposition, and he refused to attend his

L.A. REPORTING (312) 419-9292

deposition. We ask sanctions pursuant to

Supreme Court Rule 219C on the petition of

the complainant be dismissed in its entirety

as a sanction for Mr. Partee's refusal to

attend his discovery deposition.

HEARING OFFICER WEBB: Is this the

same motion that was filed with the Board as

the second motion for sanctions?

MR. JAWGIEL: I believe so.

HEARING OFFICER WEBB: Have you

received an order from the Board dated

December 7, 2006?

MR. JAWGIEL: No, we haven't.

HEARING OFFICER WEBB: The Board did

rule on your motion, and they denied the

motion.

MR. JAWGIEL: That is fine. I still

renew my motion for sanctions against him for

the appeal in case this matter goes to the

Appellate court.

HEARING OFFICER WEBB: All right. Is

there anything further?

MR. JAWGIEL: Yes, I move to exclude

witnesses, including Mr. Partee, Mr. Cohen

L.A. REPORTING (312) 419-9292

and Mr. Murphy from these proceedings. These

are witnesses that have been identified by

the State as witnesses who will testify at

the hearing pursuant to their

interrogatories.

MR. PARTEE: Obviously I object to

excluding trial counsel for the People, but

we have no objection to excluding other

witnesses. I'm not going to be called. I

will not examine myself. The fees aren't

included in the fee petition either.

HEARING OFFICER WEBB: So the motion

to --

MR. JAWGIEL: I'm sorry, that's

Ms. Stonich by the way, she just poked her

head in.

HEARING OFFICER WEBB: Okay.

MR. JAWGIEL: If you'd like to invite

her in.

MR. PARTEE: Well, are we going to

exclude witnesses?

HEARING OFFICER WEBB: No, that motion

is denied.

MR. PARTEE: We actually would prefer

L.A. REPORTING (312) 419-9292

to exclude witnesses.

HEARING OFFICER WEBB: I thought we

were just talking about --

MR. PARTEE: Me? I object to

excluding myself, but I have no objection to

excluding other witnesses.

HEARING OFFICER WEBB: Well, you

weren't going to call yourself, so yes.

MR. PARTEE: So it's granted as to the

other witnesses?

HEARING OFFICER WEBB: Yes.

MR. PARTEE: I mean, she would be one

of the witnesses.

MR. JAWGIEL: Well, we want Mr. Cohen

excluded as well, because he is going to be a

witness as well. Certainly they can sit in

on the preliminary matters. There's no

difference for them sitting in on the

preliminary matters as well --

MR. COHEN: If I might, the motion to

exclude Mr. Partee is denied, however there

is a motion to exclude in force once the

hearing gets started; is that correct?

HEARING OFFICER WEBB: Well, my

L.A. REPORTING (312) 419-9292

understanding is that the testimony of you,

Mitch Cohen, Bernard Murphy and Ms. Stonich

will be allowed, and Mr. Partee will not be

allowed. So I can't remember the language

that's denying the motion or excluding,

granting the exclusion since I don't have it

in front of me, but that's my understanding

of what's happening. Is that correct?

MR. JAWGIEL: My motion was to exclude

witnesses from the hearing until they

testify.

HEARING OFFICER WEBB: Oh, until they

testify.

MR. JAWGIEL: So the record is clear,

so Mr. Cohen can sit in. Mr. Cohen is going

to be called first. If Mr. Murphy comes in,

he has to wait, sit out somewhere else. The

second witness and Ms. Stonich would have to

be out of the room as well until she

testified.

HEARING OFFICER WEBB: Well, I

apologize for misunderstanding your motion

initially, but I'm still going to deny it.

We just normally don't do that before the

L.A. REPORTING (312) 419-9292

Board. We allow, since our hearings are open

to the public.

MR. JAWGIEL: Then Ms. Stonich can

stay.

HEARING OFFICER WEBB: Yes.

MR. PARTEE: Let me clarify then, I

think by agreement we can exclude witnesses.

MR. JAWGIEL: No, we won't agree to

it.

HEARING OFFICER WEBB: Well, by

agreement.

MR. PARTEE: He moved to exclude

witnesses.

MR. JAWGIEL: I'll move to withdraw my

motion.

MR. PARTEE: We have no objection

except with respect to me because I am not a

witness. He included me as a witness he

sought to exclude. He moved and we have no

objection to the witnesses being excluded.

MR. JAWGIEL: First of all, it's been

ruled upon. If it gets seconded, I'll

withdraw it.

MR. PARTEE: So you are withdrawing

L.A. REPORTING (312) 419-9292

the motion?

MR. JAWGIEL: No, there's been a

ruling on it. I'm not going to -- the

hearing officer ruled on it.

HEARING OFFICER WEBB: I'm going to

rule either everyone stays or everyone goes,

so --

MR. PARTEE: We would like everyone to

go. The state agrees with Mr. Jawgiel's

request that every one goes.

MR. JAWGIEL: I'll withdraw the

motion. We want Deb Stonich in the room.

We'll have another motion. This

is a written motion. I have copies for

everyone. Two for the state. One for the

hearing officer.

MR. PARTEE: For the record this is

the first time that it's being served on me.

MR. JAWGIEL: Yes. It's a motion in

limine. It's a motion in limine to bar the

petition because the request for attorneys'

fees was not in the closing argument of the

state in the hearing, and we ask that the

request for attorney's fees be barred in its

L.A. REPORTING (312) 419-9292

entirety for failure to timely bring that

issue before the Board.

HEARING OFFICER WEBB: And I'm going

to deny this motion.

MR. JAWGIEL: Thank you. And we have

one more motion.

MR. PARTEE: I'd like to point out

with respect to the first motion that there's

no indication that it's even been filed.

MR. JAWGIEL: This is another motion

in limine. This is a motion in limine from

barring a state from presenting any witness

to, who expresses an opinion in their answers

to interrogatories, specifically paragraph

No. 4, interrogatory No. 4. The state does

not identify any opinions of this witness

pursuant to Supreme Court Rule 213.

Therefore any witness provided by the State

should be limited to fact testimony only, and

no opinions should be proffered.

MR. PARTEE: Unless you are going to

deny it without hearing a response, I would

like to make a response.

HEARING OFFICER WEBB: Please, I was

L.A. REPORTING (312) 419-9292

just reading it. Go ahead.

MR. PARTEE: Well, real briefly, for

the record, again, this is the first time

we've been served with this motion. There's

no indication that it's even been filed with

the Board, and while respondents didn't

differentiate between fact and expert opinion

witnesses as rule 213 does, we would object

to this motion as it pertains to any lay

opinion witness. I think a witness could

provide a lay opinion without having been

disclosed as an expert. The problem is that

respondent's witness interrogatories didn't

differentiate between fact and expert

witnesses, although the rule does?

MR. JAWGIEL: Hearing Officer, may I

respond?

HEARING OFFICER WEBB: Yes.

MR. JAWGIEL: Mr. Partee is absolutely

incorrect. Supreme Court rule 213(f) has

been amended. The categories are fact

witnesses, opinion witnesses and retained

opinion witnesses. Not opinion witnesses and

expert witnesses. That's antiquated. It's

L.A. REPORTING (312) 419-9292

outdated. It is not in accordance with the

most recent Supreme Court rule, which has

been in effect for approximately six years.

Therefore, they have not disclosed anybody

who will be offering an opinion, whether it

is one of their fact witnesses or anyone

else, and therefore they should not be

allowed to express an opinion here today.

HEARING OFFICER WEBB: Well, I don't

need to hear anymore. I'm going to deny this

for now.

MR. JAWGIEL: Deny for now; is it

reserved?

HEARING OFFICER WEBB: Deny -- well, I

assume that you'll -- you preserved your

right to appeal my decision, but I'm denying

it.

MR. JAWGIEL: Okay, fair enough.

Thank you.

HEARING OFFICER WEBB: Is there

anything else?

MR. JAWGIEL: Not from us. Thank you.

MR. PARTEE: We would like to make a

very brief opening statement before we call

L.A. REPORTING (312) 419-9292

Mr. Cohen, if that's all right.

HEARING OFFICER WEBB: Please go

ahead.

MR. PARTEE: And that is simply that

despite having litigated the State's fee

petition for almost two years now, this

really is an uncomplicated matter involving

the reasonableness of two attorneys' time and

costs that are requested in that fee

petition. The only relevant questions on the

reasonableness of the fee petition are those

that were specifically set forth by the Board

at the outside in its April 7, 2005 order in

this case. And according to the Board,

quote, "In determining this reasonableness,

the Board will be guided by the factors set

out in long withstanding precedent. The

Board will consider among other factors,

number one, the nature of the cause and the

novelty and difficulty of the questions at

issue; number two, the amount of importance

of the subject matter; number three --

HEARING OFFICER WEBB: Do you want to

hold on a second?

L.A. REPORTING (312) 419-9292

MR. PARTEE: -- Number three, the

degree of responsibility involved in the

management of the cause; number four, the

time and labor required; number five, usual

and customary charge in the community; and

number six, the benefits resulting to the

client."

So there are only six questions at

issue today and generally with respect to the

People's fee petition. And the People will

show today that not only are the hours and

costs requested in this case reasonable, but

that the two attorneys actually under billed

their time in this case.

MR. JAWGIEL: I'm going to object to

any references to under billing their time.

What they are supposed to present are

accurate representations of the time spent

and not estimates. So therefore, I object to

this ongoing theme that they under billed

their time. There's no proof of that

whatsoever that they under billed their time

and certainly they don't even know when we

get into the testimony what they did on any

L.A. REPORTING (312) 419-9292

particular day, other than the generalized

categories. So I will continue to object to

this theme that they somehow under billed or

under estimated their time during the course

of this.

HEARING OFFICER WEBB: I'll allow you

to make a standing objection so you don't

have to object every time it comes up, but

I'm going to allow them to testify to

whatever they need to do to prove their case.

MR. PARTEE: Thank you. And just to

finish, despite an inordinate amount of time

on discovery and discovery motion practice on

the People's fee petition, which has included

hours and hours in discovery deposition on

the People's fee petition, the respondents

have after all this time no fact witnesses

that will be called to testify against the

People today. And simply put, the People

will show that each of the factors that the

Board is going to consider on the

reasonableness of its fee petition supports

granting the People's fee petition.

HEARING OFFICER WEBB: Mr. Jawgiel,

L.A. REPORTING (312) 419-9292

would you like to make an opening statement?

MR. JAWGIEL: Just an extraordinarily

brief opening statement. We will see at the

conclusion of this matter that there is no

way any person can determine whether or not

the State did in this case was reasonable in

the manner in which they defended this case,

brought their case. There is no way that

anybody looking at the time entries that have

been submitted by Mr. Cohen and Mr. Murphy to

determine whether or not what they did was

reasonable any given day, and we will

highlight that to the enth degree. Thank

you.

HEARING OFFICER WEBB: Thank you.

Mr. Partee, you may call your first witness.

MR. PARTEE: I would call Mr. Cohen as

the People's first witness.

HEARING OFFICER WEBB: Mr. Cohen, if

you please have a seat up here, the court

reporter will swear you in, please.

MITCHELL L. COHEN

23 having been first duly sworn, was examined and

24 testified as follows:

L.A. REPORTING (312) 419-9292

DIRECT EXAMINATION

2 BY MR. PARTEE:

Q. Mitch, for the record would you state

4 your full name and spell it?

A. Mitchell Lee Cohen, M-I-T-H-C-H-E-L-L,

6 Lee, L-E-E, Cohen, C-O-H-E-N.

Q. Are you familiar with a matter of

8 People versus Skokie Valley, et al?

A. Yes.

Q. How are you familiar with that matter?

A. It was a case that was assigned to me

12 and that I handled and tried before the Pollution

13 Control Board.

Q. And what was the nature of that case?

A. It was a case that involved two main

16 areas, one was NPDES violations, repeated

17 violations, failing to turn in discharge monitoring

18 reports or DMR's, filing false DMR's with the

19 Illinois EPA, failing to renew the NPDES permit on

20 time, though Skokie Valley Asphalt continued to

21 discharge, and then there was also a count related

22 to water pollution at the Skokie Valley site.

Q. Only very generally, what type of

24 facility was involved in this case?

L.A. REPORTING (312) 419-9292

A. Skokie Valley Asphalt was an

2 industrial facility, kept road surfacing product at

3 their site, had some buildings there, had some

4 retention ponds that they were supposed to use

5 before discharging any waters to waters of the

6 state.

Q. What difficulty, if any, did you have

8 in conducting discovery in the case?

MR. JAWGIEL: I'm going to object to

the form of the question and the leading

nature of the question.

HEARING OFFICER WEBB: I will allow

it. You can answer.

A. The difficulty relating to

15 discovery -- well, there was a lot of discovery just

16 because it was a case that appeared to be heading

17 for trial, and there were also some motions to

18 compel that had to be filed in the case. And given

19 the age of the case and the time constraints with

20 the scheduling order, we had to take some

21 depositions before we had all the documents needed

22 in order to take the deposition completely.

Q. Did you get all the documents needed

24 in order to take the depositions?

L.A. REPORTING (312) 419-9292

MR. JAWGIEL: I am going to object to

the relevance to this issue before the Board

on the attorneys' fees. Whether he received

the documents or not, there's no relevance at

this point from time.

MR. PARTEE: Well, the relevance is to

the first question the Board is going to ask

in determining reasonableness which is what

the nature of the underlying case is and the

difficulty of the questions and questions at

issue.

HEARING OFFICER WEBB: I'll allow the

question. You can answer.

A. We did not get the documents before

15 the deposition. We did get documents after the

16 deposition.

17 BY MR. PARTEE:

Q. And were there any issues of misplaced

19 documents or document destruction in the underlying

20 case?

MR. JAWGIEL: I'm going to object

again to the relevance and also lack of

foundation, as well as form of the question.

There's no time frame involved. He hasn't

L.A. REPORTING (312) 419-9292

flushed out the issue where it was in

accordance with the case.

HEARING OFFICER WEBB: Would you like

to establish some foundation.

MR. PARTEE: Sure.

6 BY MR. PARTEE:

Q. You handled discovery in the

8 underlying case, correct?

A. Yes.

Q. And do you understand there to be a

11 relatively discreet time frame in terms of discovery

12 in the underlying case?

A. Yes.

Q. And were there any issues of document

15 destruction or misplacement in the underlying case?

A. Yes.

MR. JAWGIEL: Objection. He still

hasn't laid a time frame. I'm objecting to

the form of the question. The lack of

foundation. Particularly the lack of time

frame and the relevance.

MR. PARTEE: Well, the relevance goes

to, again, the first question that the Board

is going to ask is the reasonableness, and

L.A. REPORTING (312) 419-9292

I'm happy to ask him during what time frame

he conducted discovery.

HEARING OFFICER WEBB: Okay.

4 BY MR. PARTEE:

Q. When did you conduct discovery?

A. Discovery was conducted -- probably

7 started long before I got involved in the case, but

8 it continued heavily the six months before the

9 trial. I think the trial was in 2003.

Q. During your involvement with discovery

11 in 2003, were there, again, any issues of

12 destruction of documents being lost in this case?

A. Yes.

MR. JAWGIEL: Same objection.

15 BY MR. PARTEE:

Q. What were those issues?

HEARING OFFICER WEBB: The ultimate

issue that we are trying to get at is how

much work was done, so I do have to allow him

some leeway to get that, and my opinion is

this is background information so.

MR. JAWGIEL: But there's no way I can

take his affidavit with respect to his

billing statements and translate it into his

L.A. REPORTING (312) 419-9292

testimony regarding the problems that he

claims he had in discovery, unless he

establishes a time frame when he had these

problems. Because if you look at his

affidavit, they are nondescript.

HEARING OFFICER WEBB: Well, I don't

have a problem.

MR. JAWGIEL: Therefore I need a time

frame in order to cross-examine him with

respect to, okay, Mr. Cohen, you said it was

in October 2003 that you experienced these

problems. According to your affidavit,

there's no entry regarding that. Unless he

lays the foundation and the time frame of

when these alleged problems occurred, they

are meaningless.

MR. PARTEE: Well, counsel is not

flying blind here. He took a three hour

deposition of Cohen on this affidavit, but

I'm happy to ask Mr. Cohen specifically what

time frame we are talking about.

HEARING OFFICER WEBB: Thank you.

23 BY MR. PARTEE:

Q. Could you tell us exactly what time

L.A. REPORTING (312) 419-9292

1 frame in terms of approximate months and years that

2 we are talking about discovery and your involvement

3 in discovery in this case.

A. My heaviest involvement in discovery

5 was the six months leading up to trial, which the

6 trial was in October 2003.

Q. So from October 2003 and backwards

8 about six months?

A. Correct.

Q. That's the time frame we are dealing

11 with, correct?

A. Yes.

Q. And again, with respect to that

14 specific time frame, what discovery issues arose, if

15 any, while the destruction of documents was being

16 phased?

A. We tried to do requests for production

18 of documents on Skokie Valley and the other

19 respondents, and they indicated that their records

20 had been, I believe it was represented they were

21 destroyed, and they did not have any records to

22 provide for us.

Q. And when were these records destroyed

24 relative to the filing of this case?

L.A. REPORTING (312) 419-9292

MR. JAWGIEL: I'm going to object.

That's fair hearsay. He is not somebody who

was involved directly in the destruction or

management of these documents. The only way

he would know is if someone told him.

6 MR. PARTEE:

Q. Did someone tell you when the records

8 were destroyed?

A. I believe it's in the record on the

10 trial.

MR. JAWGIEL: That's hearsay.

MR. PARTEE: I will withdraw the

question.

Q. Did the State produce documents in

15 discovery in the underlying case?

A. Yes.

MR. JAWGIEL: Again, I am going to

object to the time frame.

MR. PARTEE: Same time frame.

20 BY MR. PARTEE:

Q. Were you involved in discovery any

22 other time frame other than the one you've already

23 described for us?

A. I don't remember the full extent of

L.A. REPORTING (312) 419-9292

1 the discovery, but whatever discovery happened,

2 happened after I was involved with the case, I was

3 involved with it, but there was many years of this

4 case before I got involved, and I don't know what

5 discovery happened then.

Q. I'm only interested in the time frame

7 you spent personally on discovery?

A. Yes.

Q. Did you produce any documents in

10 discovery in the underlying case?

A. Yes.

MR. JAWGIEL: Again, I will object to

the time frame. Is it the six months prior

to trying the hearing we are referring to or

is this since Mr. Cohen was involved in the

case. The question is vague and unclear.

HEARING OFFICER WEBB: This entire

line of questioning is the six month period

before hearing?

MR. PARTEE: Exactly. It's the one

and only time frame.

A. Yes.

23 BY MR. PARTEE:

Q. How many boxes of documents did you

L.A. REPORTING (312) 419-9292

1 produce to respondents during the underlying case

2 during this discovery time frame that we are talking

3 about?

A. I don't really remember in terms of

5 boxes. What I remember is that --

MR. JAWGIEL: I'm going to object. He

answered the question. If he goes beyond it,

he goes beyond the scope of the question.

The scope of the question was how many boxes

did you produce in the course of discovery.

His answer was I don't remember in terms of

boxes, so he doesn't know the answer to the

question. Anything beyond that is going

beyond the scope of the question.

MR. PARTEE: I think you are

mischaracterizing his testimony. He wouldn't

characterize the production in terms of

boxes.

HEARING OFFICER WEBB: I'll allow you

to finish the question because I don't --

yes, perhaps, okay, that would be more

responsive.

A. Once Mr. O'Neil and I communicated

24 that they did not have records, we made our entire

L.A. REPORTING (312) 419-9292

1 file available to Mr. O'Neill to review. I know it

2 was boxes in the conference room, and I believe he

3 copied everything we made available to him, but I

4 don't remember exactly how much that was or the

5 number of boxes put in the conference room.

6 BY MR. PARTEE:

Q. You can't estimate the number of

8 documents that were produced by the State?

MR. JAWGIEL: I'm going to object to

the form of the question as asked and

answered.

A. I can't estimate.

HEARING OFFICER WEBB: Overruled.

14 BY MR. PARTEE:

Q. What was your next step in this case

16 after discovery?

A. As I recall discovery ended pretty

18 much right before the trial so we were getting ready

19 for trial.

Q. And did you experience any

21 difficulties preparing for trial?

A. Many.

Q. Can you identify some of them for us.

A. Well, one major difficulty we had was

L.A. REPORTING (312) 419-9292

1 my trial partner was excluded from the case. There

2 were lots of issues I think still outstanding

3 related to the documents from discovery that had to

4 be addressed. We were not allowed to go back and

5 depose the witnesses after we received the

6 documents, and we received many motions within days

7 before the trial part.

Q. You said that your trial partner had

9 been excluded before the trial. How did that

10 present difficulty in terms of your trial

11 preparation?

MR. JAWGIEL: I'm going to object the

exclusion of Mr. Sternstein in this case has

nothing to do with the respondents. It

merely has something to do with the fact that

he shouldn't have been on the case in the

first place and anything related to the

difficulty experienced by the Attorney

General's office is inappropriate, for

putting Mr. Sternstein on this case should be

beared by the Attorney General's office and

certainly not by my client.

HEARING OFFICER WEBB: Well, and the

Board has already agreed with you on that,

L.A. REPORTING (312) 419-9292

but I don't know where this line of

questioning is going. You are just asking

how much extra work he had to do once he was

the only other than attorney.

MR. JAWGIEL: And it certainly has no

relevance. If he had to do extra work

because Mr. Sternstein was removed from this

case, that's the AG's office problem. That's

the Attorney General's office problem and not

my client's problem. It has no relevance to

the reasonableness of Mr. Cohen's work.

HEARING OFFICER WEBB: We could

rephrase the question to how much work he did

during that time frame.

MR. JAWGIEL: To be frank --

MR. PARTEE: It's going to be long --

MR. JAWGIEL: He can certainly

rephrase his own questions. What I'm saying

very simply is that Mr. Sternstein was

removed by the Board in this case because

Mr. Sternstein should not have been on this

case from its inception. That was a decision

made by the Attorney General's office that

was inappropriate and improper, and anything

L.A. REPORTING (312) 419-9292

related to extra work that had to be done

because of his removal should be borne by the

Attorney General's office and not my client.

HEARING OFFICER WEBB: Well,

Mr. Jawgiel, you are making argument right

now, and I don't want to do that here.

Please save that for your post-hearing brief.

I don't even remember what the question was

at this point.

MR. PARTEE: I'm certain I didn't even

say the word "Sternstein."

HEARING OFFICER WEBB: I know you

didn't. I think the question was fine. So

you are overruled for now. Please continue.

15 BY MR. PARTEE:

Q. I think the question was, how was your

17 trial prep made difficult as a result of the

18 exclusion of your trial partner?

MR. JAWGIEL: Same objection.

MR. PARTEE: I think that objection

has been overruled.

HEARING OFFICER WEBB: Overruled. It

does go to fees. So overruled. Go ahead.

A. The difficulty, I guess, was getting

L.A. REPORTING (312) 419-9292

1 another attorney in place and up to speed to help

2 with the trial as well as doing everything in our

3 power not to seek a continuance because of that

4 ruling made, I think, essentially weeks before the

5 trial.

Q. You mentioned another difficulty was

7 that you received documents shortly before trial.

8 Who provided you with those documents?

A. Respondents.

Q. How many documents did they provide

11 you with before trial?

A. I don't remember how many. I remember

13 two --

MR. JAWGIEL: I am going object to the

rest being nonresponsive. That's the

response to the question. Anything beyond

that goes beyond the scope of the question.

HEARING OFFICER WEBB: Overruled.

A. I recall that two of the big documents

20 that were important was the engineering report from

21 their expert witness James Huff, as well as the

22 financial documents related to Skokie Valley

23 Asphalt, the Frederick brothers and especially the

24 asset purchase agreement from when the business was

L.A. REPORTING (312) 419-9292

1 sold.

Q. Were you looking at these documents

3 for the first time after depositions had been

4 completed in the case?

MR. JAWGIEL: I'm going to object to

the relevance.

A. Yes.

MR. JAWGIEL: What's the relevance if

it was after deposition.

HEARING OFFICER WEBB: Overruled.

Please continue.

MR. PARTEE: I think his answer was

yes.

HEARING OFFICER WEBB: Okay, sorry.

15 BY MR. PARTEE:

Q. Is that correct?

A. Yes.

Q. You also mentioned that you perceived

19 pretrial motions and that that was one of the

20 difficulties that you had faced in the underlying

21 case?

A. Yes.

Q. Who filed these pretrial motions?

A. Respondents.

L.A. REPORTING (312) 419-9292

Q. And do you recall how many pretrial

2 motions the respondents filed?

A. Well, there were lots of pretrial

4 motions filed throughout the course of the case, but

5 the week -- I think it was the week before or the

6 week of trial, I believe, 12 motions were filed.

Q. All by respondents?

A. Yes.

Q. What type of motions were these?

A. Motions to exclude witnesses and

11 motions in limine.

Q. Did the State respond to all of these

13 motions?

A. As best we could.

Q. Did you take depositions in the

16 underlying case?

A. Yes.

Q. Do you recall how many depositions you

19 took in the underlying case?

A. I recall three depositions on behalf

21 of the People.

Q. Did you defend any depositions in the

23 underlying case?

A. Yes.

L.A. REPORTING (312) 419-9292

Q. How many?

A. I recall one.

Q. Although there was a hearing on the

4 underlying case, how long was the hearing?

A. Two days.

Q. How long each day?

A. They were pretty full days. I think

8 we might have ended a little early on the second

9 day.

Q. And where was the hearing held?

A. Grayslake.

Q. Where do you live relative to

13 Grayslake?

A. Chicago.

Q. And how many exhibits were used at the

16 hearing?

A. Approximately 50.

Q. And whose exhibits were they?

A. Most of the exhibits were the

20 People's. I think we had 40 or more, and the

21 respondents also had a handful of exhibits.

Q. And do you recall how many witnesses

23 the People called at the hearing?

A. I think we called all the witnesses.

L.A. REPORTING (312) 419-9292

1 I think six.

Q. And what types of legal issues were

3 involved in the hearing on the underlying case?

A. Well, legal issues really went to the

5 nature of the case related to the NPDES permits,

6 violations of those permits by failing to file

7 DMR's, filing false DMR's, excessive discharge in

8 relation to some of the DMR's that were filed,

9 failure to renew the NPDES permit on time, water

10 pollution. We were also dealing with individual

11 versus corporate liability in the case. Those are

12 the main ones I remember.

Q. Was there any expert testimony in the

14 underlying case?

A. Yes.

Q. And after the hearing was over, did

17 any work remain for you in this case?

A. Yes.

Q. What was that?

A. Well, there were additional motions

21 filed after the hearing as I recall, and there was

22 also the written closing argument and written

23 closing rebuttal argument, which ultimately led to

24 additional litigation that's ongoing to the State.

L.A. REPORTING (312) 419-9292

Q. You said that additional motions were

2 filed after the hearing. Who filed the motions?

A. I think both parties did.

Q. Do you recall what types of motions

5 were filed after the hearing?

A. No. I know one was contesting the

7 fees. I don't remember what it was called.

Q. You said that there was a written

9 closing argument?

A. Yes.

Q. And did you experience any difficulty

12 in preparing the written closing argument?

A. Yes, written closing arguments were

14 very difficult for me to prepare, especially in this

15 case. The written closing argument itself -- what I

16 have done is I try to use the trial transcript and

17 cite from the trial transcript as much as I can,

18 especially related to facts, and I also try to cite

19 to specific exhibits in this case. I think there

20 were around 50. Some of them quite voluminous, and

21 I also typically have research related to the

22 written closing argument.

Q. How long was the trial transcript in

24 this case?

L.A. REPORTING (312) 419-9292

A. It was two volumes. I'm estimating

2 500 pages.

Q. Let me ask you about the amount and

4 importance of the subject matter. How many

5 violations were involved in the underlying case?

A. There were numerous violations. It's

7 hard to quantify that. There were, I think, five or

8 six counts, but there were repeated violations of

9 failing to provide or submit DMR's to the Illinois

10 EPA. There were repeated violations to the excess

11 total suspended solids, or TSS, so I can't remember

12 exactly how many months those violations went on.

13 Then there was the water pollution, the failing to

14 apply for the permit on time. I think there were

15 two times of filing false DMR's.

Q. I'm sorry?

A. Those were all included in the

18 violations.

Q. What was the approximate time frame of

20 these violations?

A. I think they started in the late 80's,

22 through the oil discharge which was the end of '94

23 through about April of '95.

Q. And was this an important case to the

L.A. REPORTING (312) 419-9292

1 office?

MR. JAWGIEL: I'm going to object. It

asks for an opinion, and as I stated before,

they did not close him as an opinion witness.

His opinion to the case has no relevance and

to the reasonableness of fees being

requested.

HEARING OFFICER WEBB: Overruled.

9 BY MR. PARTEE:

Q. Was this an important case to the

11 office?

MR. JAWGIEL: Objection to what office

is he is referring to.

14 BY MR. PARTEE:

Q. Was this an important case to the

16 complainant, however you phrase it?

MR. JAWGIEL: Again, objection, asks

for hearsay.

HEARING OFFICER WEBB: Overruled.

A. Yes, it was an important case.

21 BY MR. PARTEE:

Q. What was the importance of the case?

A. Well, you're dealing with issues

24 related to water pollution --

L.A. REPORTING (312) 419-9292

MR. JAWGIEL: Just so I can -- I'll

object. Asks for an opinion. I assume it's

going to be overruled. Is that correct?

HEARING OFFICER WEBB: Correct.

MR. PARTEE: I would just like to real

quickly point out that the point I'd like to

make is that what I am asking him is verbatim

one of the factors that the Board has set out

where it describes what it's going to

consider in terms of reasonableness. And the

element is the amount and importance of the

subject matter, that the element that the

Board spelled out as one of the elements that

has been applied to the fee petition in

determining its reasonableness. So I think

it's relevant for that matter.

MR. JAWGIEL: And I don't think the

Board's ruling with respect to the importance

of matter has to go to the Illinois EPA's

determination interpreted by the Attorney

General's office. If they wanted to bring

somebody in to testify for them from the

Illinois EPA regarding the importance of this

case, they certainly should have brought a

L.A. REPORTING (312) 419-9292

witness from the Illinois EPA, and it should

be not be interpreted through hearsay of

Mr. Cohen, and it's an appropriate failure to

lay the proper foundation, and it is pure

hearsay with respect to Mr. Cohen's

interpretation of what the Illinois EPA's

position is on this case.

HEARING OFFICER WEBB: I am going to

allow you to answer, Mr. Cohen.

A. Okay. I believe the question related

11 to why was it important at this point to the

12 complainant?

HEARING OFFICER WEBB: Yes.

MR. PARTEE: I believe that was the

last version of the question posed to you.

A. This case when you are dealing with

17 NPDES permits, it's a national program, with all the

18 regulations related. It's part of the Clean Water

19 Act and the Illinois EPA is a delegated agency to

20 enforce the NPDES program on behalf of the federal

21 government. Water pollution, of course, is serious

22 in terms of health and safety of the public, the

23 People of the state of Illinois and in Illinois.

24 It's a constitutional right of the People to have a

L.A. REPORTING (312) 419-9292

1 healthy and safe environment.

Q. With respect to the degree of your

3 responsibility in this case, can you generally

4 describe for us what you did in the underlying case?

MR. JAWGIEL: I'm going to object to

the failure to lay a foundation.

HEARING OFFICER WEBB: What

foundation?

MR. PARTEE: If he's questioning

whether he was involved in the underlying

case, well we have. I think we are well past

it. It's preliminary, and we are well past

it.

MR. JAWGIEL: You never qualified this

witness. I object to the foundation.

MR. PARTEE: I don't understand the

objection.

HEARING OFFICER WEBB: I don't either.

MR. JAWGIEL: You didn't want a

speaking objection, so now I am not going to

speak. I object to the laying of the

foundation. He never qualified the witness.

HEARING OFFICER WEBB: I honestly

don't remember if I did or didn't.

L.A. REPORTING (312) 419-9292

MR. PARTEE: Well, I can tell you if

you'll give me a little leeway.

HEARING OFFICER WEBB: Please.

MR. PARTEE: We had expected that

Mr. Cohen's experience and qualification was

relevant to the factors involved in the usual

and customary charge in the legal community,

and we had to get Mr. Cohen's background

under qualifications in the context of that

factor.

MR. JAWGIEL: If he is going to be

asking him questions regarding his

involvement in this case and interpretation

of this case, he has to lay the foundation of

his qualifications to give those opinions.

He hasn't laid the foundation. He hasn't

qualified this witness at all in this case.

And I'm sorry to take Mr. Partee off of his

recipe, but the bottom line is that Mr. Cohen

has not been qualified.

HEARING OFFICER WEBB: I'm just not

sure what you want to know. We all know he

worked on the case. The question is what did

he work on, right?

L.A. REPORTING (312) 419-9292

MR. PARTEE: What did he generally do.

MR. JAWGIEL: It's an evidentiary

issue.

HEARING OFFICER WEBB: Overruled.

5 BY MR. PARTEE:

Q. The question, if I can repeat it is,

7 can you just generally describe for us what you did

8 in the underlying case?

A. Yes.

MR. JAWGIEL: Same objection.

HEARING OFFICER WEBB: You may have a

standing objection, Mr. Jawgiel.

A. I was working as an assistant Attorney

14 General in the environmental bureau in Chicago when

15 the case was assigned to me. It was assigned to me

16 because the person who had the case before we me was

17 leaving the office. That was Kelly Cartwright. At

18 that point, from that point on the case was my

19 responsibility in terms of bringing it forward,

20 amending the complaint and conducting discovery,

21 addressing motions, preparing the case for trial.

22 It was at a particularly busy time for me because I

23 was in the middle of a big trial, so an additional

24 assistant Attorney General was assigned to the case

L.A. REPORTING (312) 419-9292

1 as well.

2 BY MR. PARTEE:

Q. How old was the case when it was

4 assigned to you?

A. I think it was about seven years old.

Q. And about how many assistant Attorney

7 Generals had been on the case before yourself?

A. I don't remember exactly but probably

9 half a dozen.

Q. When it was assigned to you and were

11 you primarily responsible for looking it up and

12 trying it?

A. Yes.

Q. Let me ask you about your time and

15 labor in bringing this, the underlying case, to a

16 close? When you were assigned to this case, how

17 much work had been done on the case before it was

18 assigned to you?

A. I don't know how to answer that one.

Q. Was any work done on the case before

21 it was assigned to you?

A. I'm sure there was work done in terms

23 of discovery. Very little work.

Q. Did you keep track of your time on

L.A. REPORTING (312) 419-9292

1 this case?

A. Yes.

Q. Why?

A. When the case was assigned to me, I

5 met with Kelly Cartwright. She told me that --

MR. JAWGIEL: I'm going to object to

what Ms. Cartwright says is hearsay.

MR. PARTEE: It's not being offered

for the truth of the matter asserted, just

for the fact that he had a meeting.

HEARING OFFICER WEBB: You may answer.

A. She explained to me about the case,

13 about the file, about the types of violations, the

14 number of violations. Based on what she told me, I

15 realized that this would fall under Section 42F of

16 the Illinois Environmental Protection Act which says

17 that if you have a --

MR. JAWGIEL: I'm going to object to

his interpretation of the Act, failure to lay

foundation, failure to qualify.

HEARING OFFICER WEBB: Overruled. You

may continue.

A. Which says something to the effect

24 that if the person committing the violation does it

L.A. REPORTING (312) 419-9292

1 repeatedly, willfully or knowingly, then the

2 Attorney General's office or the State's attorney

3 prosecuting the case may be entitled to attorney

4 fees in the case.

5 BY MR. PARTEE:

Q. And did you submit the time that you

7 kept in this case to the Board?

A. Yes.

Q. How did you submit it to the Board?

A. I submitted it two ways. During the

11 closing argument phase, I put in a summary. I want

12 to say a summary affidavit I guess of our time, of

13 my time. After the respondents objected to awarding

14 attorney fees at that point in litigation, the Board

15 then allowed us to submit another file, a fee

16 petition, and I submitted my time in that manner.

MR. PARTEE: Okay. May I approach the

witness?

HEARING OFFICER WEBB: Yes.

MR. JAWGIEL: Just for the record, he

does not have to ask if it's okay. It's okay

that he walks up to witnesses. I have no

problem with him approaching the witness

without him having to ask each time.

L.A. REPORTING (312) 419-9292

(People's Exhibit

No. 100 marked.)

3 BY MR. PARTEE:

Q. Mitch, I think before we took a break,

5 you said that you presented your fees to the Board

6 through a fee petition. You've now been handed what

7 was marked as People's Exhibit No. 100. And take

8 the time you need to review the exhibit, but my

9 question is, can you tell me what has been marked as

10 People's 100?

A. Yes, this is a copy of the People of

12 the state of Illinois attorney fees and cost

13 position, notice of filing, service list, and the

14 actual document itself.

Q. Is this the fee petition you had

16 referenced in answer to the earlier question?

A. Yes.

Q. Is this a true and accurate copy of

19 the fee petition that you filed?

A. Yes.

Q. Is that your signature on page 4 of

22 the fee petition?

A. Yes.

MR. PARTEE: I ask the Board to take

L.A. REPORTING (312) 419-9292

judicial notice of this and I think I'd like

to move this in evidence.

MR. JAWGIEL: It is premature to move

anything into evidence prior to the close of

his case. I object.

HEARING OFFICER WEBB: We don't --

sometimes we do it before the close of the

case. I don't see any -- this doesn't --

this seems be a document, you're right, of

which the Board could take judicial notice.

MR. JAWGIEL: Has it been filed?

HEARING OFFICER WEBB: It has been

filed. It's got the date stamped on it.

Really it's being moved for convenience sake

I am assuming more than anything else.

MR. PARTEE: That's right.

HEARING OFFICER WEBB: So I'll allow

it.

19 BY MR. PARTEE:

Q. Mitch, how did you keep track of your

21 time in this case?

A. I kept track of my time on an office

23 program we had at the time called Groupwise, and I

24 used the calendar feature of Groupwise and noted the

L.A. REPORTING (312) 419-9292

1 time I worked on this case on the calendar.

Q. And when did you keep track of your

3 time in this case?

A. I kept it along the way as I was

5 working on the case.

Q. Did you keep your time contemporaneous

7 with your work on the case?

A. Yes, I either would put the time in

9 the day I worked on it or possibly a day or two

10 later when I returned to the office or something

11 like at hat.

Q. And did Groupwise allow you to go back

13 in time and determine how much time you spent on a

14 specific date?

A. Groupwise does not allow me to

16 determine how much time I worked on the matter.

17 It's just a calendar feature.

Q. Well, how did you -- strike that.

What specifically did you record

20 in Groupwise in terms of your time?

A. I would keep track of the time on a

22 particular day that I worked on this case, and I

23 would go into Groupwise, note that I worked on the

24 Skokie Valley Asphalt case, and then within the

L.A. REPORTING (312) 419-9292

1 entry I would make a short notation as to what I

2 worked on that day and the number of hours I worked

3 on that day in relation to the Skokie Valley Asphalt

4 case.

Q. Did Groupwise allow you to go back and

6 make an entry to some specific entry in the past?

MR. JAWGIEL: I am going to object as

asked and answered.

HEARING OFFICER WEBB: I don't know

that it was. Go ahead and answer.

A. Yes, Groupwise allows you to go back

12 in time. You can make the entry after that date.

13 BY MR. PARTEE:

Q. Does Groupwise allow you to print out

15 your time entries?

A. Yes, it does.

(People's Exhibit

No. 101 marked.)

19 BY MR. PARTEE:

Q. Did you at some point use Groupwise to

21 print out your time entries in this case?

MR. JAWGIEL: I'm going to object to

the time frame and lack of foundation.

HEARING OFFICER WEBB: The time frame

L.A. REPORTING (312) 419-9292

for printing?

MR. JAWGIEL: Yes, because you will

find out during the course of the testimony

that Mr. Cohen didn't print it out until way

after we produced these. He went back in his

calendar and went through his entire calendar

four or five years and going by hand and

handwriting down what was on the computer

screen and then billing for that time, and

then these documents, 101, was actually

printed out for the very first time according

to Mr. Cohen in his deposition after we had

requested it during the course of the fee

petition, and he first learned that he could

print it out then. So the time frame becomes

very important.

HEARING OFFICER WEBB: Mr. Partee,

I've forgotten your question.

MR. PARTEE: So have I.

MR. JAWGIEL: Have the reporter read

it back because that's one of the reasons why

she's here.

MR. PARTEE: Before you do that,

Ms. Court Reporter, I think what counsel has

L.A. REPORTING (312) 419-9292

done is essentially offered testimony on

behalf of respondents as far as what they

intend to show, and frankly, if I had asked

when Mr. Cohen printed out his Groupwise

entries, I think I would have gotten the

foundation objection because I didn't

establish that he did in fact print out his

Groupwise entries. So what I am simply

trying to establish is whether he went back

and in fact print out his Groupwise entries,

which he's already said could be done.

HEARING OFFICER WEBB: Mr. Jawgiel,

again, I prefer you save your argument for

your post-hearing brief. I don't think it

matters when he printed it out. So please

continue.

17 BY MR. PARTEE:

Q. Did you print out your Groupwise

19 calendar entries?

A. Yes.

Q. When did you print out your Groupwise

22 calendar entries?

A. I believe it was after, it was after

24 the case was tried and the fee petition became an

L.A. REPORTING (312) 419-9292

1 issue. I believe there was a discovery request

2 related to the fee petition, and that's when these

3 were printed out.

Q. Could you take a look at what's been

5 marked as People's Exhibit No. 101.

A. Yes.

Q. And what has been marked as People's

8 101?

A. This is the sheets that were printed

10 out from Groupwise related to the time and in the

11 fee petition beginning May 29, 2002 through the day

12 before I believe the fee petition was filed,

13 September 16, 2004.

MR. JAWGIEL: Mr. Murphy is here.

MR. PARTEE: Could we go off the

record for a second.

HEARING OFFICER WEBB: We'll go off

for a moment.

(Short recess taken.)

20 BY MR. PARTEE:

Q. Are these, are what's marked People's

22 101, your Groupwise time entries, between May 29,

23 2002 and September 15, 2004?

A. Yes, September 15, 2004.

L.A. REPORTING (312) 419-9292

Q. Is this a true and correct copy of

2 those time entries?

A. Yes, this is how it would be printed

4 out.

Q. Is this how you printed it out?

A. Yes.

MR. PARTEE: Ms. Webb, I can move to

admit these all at the end or we can do it as

we go. Whatever your preference.

HEARING OFFICER WEBB: I don't have a

preference. Either way is fine for me.

MR. PARTEE: I'd like to move to admit

this into evidence at this point.

MR. JAWGIEL: No objection.

HEARING OFFICER WEBB: No objection?

Well, Exhibit 101 is admitted into evidence.

17 BY MR. PARTEE:

Q. And, Mr. Cohen, in what increments did

19 you record your time?

A. Typically hour or half hour

21 increments.

MR. JAWGIEL: I'm going to object to

anything beyond that as nonresponsive.

HEARING OFFICER WEBB: I'll allow you

L.A. REPORTING (312) 419-9292

to finish answering.

A. What I would do is, the amount of time

3 I would work on the Skokie Valley case in a given

4 day, I would keep track of that to the best of my

5 ability, and then I would round it down to the

6 nearest half hour.

MR. JAWGIEL: I'm going to object to

that as nonresponsive to the question and ask

that it be stricken.

HEARING OFFICER WEBB: Overruled.

11 BY MR. PARTEE:

Q. Did you bill for time spent on the

13 case that amounted to less than an hour?

A. If there was a day that I worked less

15 than an hour on the Skokie Valley case, really any

16 case that I have worked on with the Attorney

17 General's office, I did not put it into my time

18 records.

Q. So such time wouldn't be reflected in

20 your time records?

A. Correct.

Q. Did you actually work all of the time

23 that you recorded in this case?

A. Yes.

L.A. REPORTING (312) 419-9292

Q. While you were working on or traveling

2 in this case, were you able to work on any other

3 cases?

A. No.

Q. Mitch, at what rate did you bill your

6 time in this case?

MR. JAWGIEL: I'm going to object to

the foundation.

MR. PARTEE: I think that a lot of

this fact, the foundational question as far

as whether he billed and that there was a

rate at which he billed, is all preliminary

testimony and uncontested in a fee petition.

MR. JAWGIEL: It is not preliminary

and uncontested. First of all, he has to

establish based on his Exhibits 101, which

has no rate on it whatsoever and his

affidavit Exhibit A, which has no rate

whatsoever, Exhibit A to the fee petition I

should say, how he determined what rate he

should ask for. And there has to be a

foundation. He has to qualify him, and he

hasn't done so.

MR. PARTEE: I think that's wrong. I

L.A. REPORTING (312) 419-9292

think that we need to establish what the rate

was before we can get into how he established

that rate, otherwise we are questioning him

in the abstract.

HEARING OFFICER WEBB: I agree. Just

continue your line of questioning. I think

we'll get there.

8 BY MR. PARTEE:

Q. Mitch, at what rate did you bill your

10 time in this case?

A. $150 an hour.

MR. JAWGIEL: Just note the objection

for the record, please.

HEARING OFFICER WEBB: You have a

standing objection.

16 BY MR. PARTEE:

Q. How did you arrive at that rate?

A. I did some research related to the

19 Pollution Control Board's award of attorneys' fees

20 and found at least one case, one of the most more

21 recent cases that indicated the Pollution Control

22 Board felt that $150 an hour was a reasonable rate

23 to charge.

24 BY MR. PARTEE:

L.A. REPORTING (312) 419-9292

Q. And in terms of costs, did the People

2 incur costs in trying the underlying case?

A. Yes.

Q. What types of costs did the People

5 incur?

A. Well, we incurred lots of types of

7 costs, personnel, postage, telephone, travel,

8 depositions, photocopying that I can think of off

9 the top of my head.

Q. Are all of those costs included in the

11 fee petition?

A. No.

Q. What sorts of costs did the People

14 incur that are not included in the fee petition?

MR. JAWGIEL: Do you need to refer to

the document?

THE WITNESS: Yes. I'm referring to

People's Exhibit 100.

MR. JAWGIEL: Can you refer to a page

so I can read along, please.

THE WITNESS: Yes.

The second to the last page of

People's Exhibit 100 lists the costs incurred

by the State of Illinois. This list does not

L.A. REPORTING (312) 419-9292

include postage, long distance telephone

calls or in-house photocopying that I can

see.

4 BY MR. PARTEE:

Q. Any other costs that the People

6 incurred not included in this fee petition?

MR. JAWGIEL: I'm going to object to

the relevance of this line of questioning.

This is a hearing on the reasonableness of

the actual fees requested, not on what was

not requested.

MR. PARTEE: I think the

reasonableness inquiry is -- I think the

needle there is moved if we had incurred

direct costs that were not even included. I

think it's relevant as to what we are

requesting, and its relevance and its

reasonableness.

HEARING OFFICER WEBB: I'll allow it.

A. I can't think of any right now.

(People's Exhibit

No. 102 marked.)

23 BY MR. PARTEE:

Q. Would you take a look at what's been

L.A. REPORTING (312) 419-9292

1 marked as People's Exhibit 102?

A. Yes.

Q. What has been marked as People's 102?

A. This looks like the -- most of this is

5 bills and receipts that People of the state of

6 Illinois, the Attorney General's office paid in

7 relation to the Skokie Valley Asphalt case.

Q. Are these the costs that you included

9 in the fee petition?

A. Yes.

Q. Is it true and accurate copy of the

12 costs on which you base the cost portion of the fee

13 petition?

A. The bills and invoices that are in

15 this package are true and correct copies. There are

16 some receipts that are also true and correct copies.

17 There are some other documents that really are not

18 bills or invoices but they too are related to how

19 bills get paid in the Attorney General's office and

20 those also are true and correct copies.

Q. Okay. Do you want to clarify any of

22 the receipts?

A. Sure. The first page of this exhibit

24 is a receipt. The second page is a receipt. The

L.A. REPORTING (312) 419-9292

1 third page is a receipt for depositions. The fourth

2 page is an invoice from Kinko's. The fifth page is

3 another type of invoice from Kinko's. The next page

4 is another type of invoice from Kinko's, and those

5 were the costs incurred and paid by the State of

6 Illinois for this case. The next sheet is a travel

7 voucher. It is, as far as I know, it's an internal

8 document used by the Attorney General's office to

9 reimburse employees for expenses incurred. This

10 particular one that I signed, January 26, 2004,

11 shows expenses related to the trip to Grayslake,

12 Libertyville, for the Skokie Valley Asphalt case and

13 it also includes additional trips that I took as an

14 Assistant Attorney General working for the office in

15 relation to another case.

MR. JAWGIEL: I'd ask that the portion

unrelated to this case be redacted from the

record as irrelevant.

HEARING OFFICER WEBB: What portion is

that?

MR. JAWGIEL: Well, on page 7 of

Exhibit 102, he has travel all subsequent to

October 31, 2003, which are all traveling

expenses for unrelated cases, and therefore I

L.A. REPORTING (312) 419-9292

ask that that be redacted and removed from

the record as irrelevant.

HEARING OFFICER WEBB: Well, you are

absolutely right, the Board is not going to

consider information not related to this

case. Do you want it -- you mean physically?

MR. JAWGIEL: Physically redacted,

yes. I'm not that concerned about the Board.

HEARING OFFICER WEBB: Is it just this

one page, the travel voucher?

MR. JAWGIEL: I have no idea. This is

the first time I've seen the exhibit. This

is not the first time I have seen the travel

voucher, but when this was presented to me in

this matter, certain things were identified

as unrelated to this case. Everything

subsequent to October 31, 2003 is unrelated

to the case at hand.

MR. PARTEE: My suggestion is this, we

are not seeking any costs on this travel

voucher unrelated to this case, and to the

extent that there's any follow-up or

clarification needed on that, counsel is

going to have his turn with the witness, but

L.A. REPORTING (312) 419-9292

there are no costs on other cases on this

travel voucher that we're claiming in this

case.

HEARING OFFICER WEBB: Okay, I'm just

going to allow it as it is and we can clarify

it on cost or in your post-hearing brief, but

I'm not concerned that it's going to be

considered by the Board.

A. The next page is a true and correct

10 copy of a receipt. The next page is the Holiday Inn

11 receipt for me. The next page is not titled. It

12 has my name at the top, Mitch Cohen. It has a date

13 at the top, and then it says dates of travel October

14 29th through October 31st, 2003, and then travel

15 expenses underneath. This is an internal form that

16 I use at the Attorney General's office to indicate

17 expenses, and this is probably the form that the

18 person who prepared the travel voucher discussed

19 earlier used to prepare the travel voucher. So that

20 is not a receipt.

The next page is called a travel

22 request form. It is also an internal document.

23 Within the office we try to get office permission

24 and approval for travel if we know in advance that

L.A. REPORTING (312) 419-9292

1 we have to travel. It is an approximate accounting

2 of what we expect the costs will be for the trip.

3 For example, there's a miscellaneous noted

4 two-thirds of the page down on the travel request

5 form, and that is just an accounting feature in case

6 for some reason the trip costs more than

7 anticipated. So this is not a receipt.

The next sheet is a travel voucher

9 for Bernard Murphy, and it looks like this only

10 relates to the Skokie Valley Asphalt case.

The next sheet is a Holiday Inn

12 receipt for Mr. Murphy. The next sheet is

13 Mr. Murphy's travel expense form. The internal form

14 I mentioned before, which he provides to the office

15 so that the travel voucher can be prepared. The

16 next two sheets are faxed cover sheets.

MR. PARTEE: If I could rudely

interrupt. As far as I'm concerned, you

don't need to -- in the interest of moving

this along, you don't need to go through each

sheet, only those you want to clarify or if

there's any additional information that needs

to go along with them.

A. I might as well finish these last few

L.A. REPORTING (312) 419-9292

1 pages. Central management services, that's how you

2 request a cool car to be used. Travel request form

3 for Mr. Murphy. Another fax cover sheet. This is a

4 Kinko's receipt. The next two pages are an

5 attachment "A," for Toomey Reporting, which I

6 believe just shows how they bill the office for

7 court reporting services. The next page is a

8 Kinko's receipt. The next two pages at least in my

9 copies are again Toomey Reporting services, how they

10 bill. It is not a receipt. And the last two pages

11 of the exhibit are Kinko receipts.

MR. PARTEE: Thank you. I'd like to

move at this time to admit People's 102 into

evidence.

MR. JAWGIEL: I'll object to the

foundation.

MR. PARTEE: On what grounds?

HEARING OFFICER WEBB: Well, this is

obviously pretty critical information that I

do believe the Board needs so I'm going to

admit it.

23 BY MR. PARTEE:

Q. Let me move on to the issue of usual

L.A. REPORTING (312) 419-9292

1 and customary charge in the legal community, and in

2 the interest of moving this along.

(People's Exhibit

No. 103 marked.)

5 BY MR. PARTEE:

Q. Did you prepare a resume in support of

7 the State's fee petition in this case?

MR. JAWGIEL: I'm going to object to

the form of the question as leading.

HEARING OFFICER WEBB: I'll allow it.

A. I don't recall preparing a resume in

12 support of the fee petition.

13 BY MR. PARTEE:

Q. Did you disclose your resume in

15 support of the State's fee petition?

A. Yes.

Q. Is what's been marked as People's 103

18 a true an correct copy of the resume that you

19 submitted in support of the fee petition?

A. Yes.

MR. JAWGIEL: I'm going to object to

the form of the question. He indicated he

did not prepare or submit a resume.

MR. PARTEE: He said that he didn't

L.A. REPORTING (312) 419-9292

prepare one but that he submitted one.

HEARING OFFICER WEBB: Yes.

MR. JAWGIEL: Not in support of or in

the course of discovery did you submit one is

my correct recollection of what was said.

MR. PARTEE: I'll rephrase.

7 BY MR. PARTEE:

Q. Is what's been marked as People's

9 Exhibit 103 the resume that you submitted in the

10 course of discovery on the People's fee petition?

A. Yes.

Q. Is it a true and accurate copy of

13 resume that you submitted?

A. Yes.

MR. PARTEE: In the interest of time

I'm not going to go through his entire

resume. I have some follow-up questions

about experience, outside experience and work

experience since the resume was prepared, but

in the interest of time I'd like to just move

to admit People's 103 and not go over it.

MR. JAWGIEL: I'm objecting to the

foundation and the form of the question.

This is a hearsay document. If he is not

L.A. REPORTING (312) 419-9292

going to qualify his own witness, that's his

own decision, and I object to any questioning

regarding what Mr. Cohen's been doing since

his involvement in this case as irrelevant,

that the only relevance with respect to

Mr. Cohen's testimony today is what his

qualifications were during the relevant

period of time which is the time he is

working on the case and asking for a fee.

HEARING OFFICER WEBB: I'm going to

sustain your objection regarding anything

that Mr. Cohen has done after the time period

that we are dealing with here, but I will

allow you to go back and review, I believe,

his information before everything leading up

to this fee petition that's relevant.

17 BY MR. PARTEE:

Q. Mitch, did you prepare the resume that

19 appears as Exhibit 103?

A. Yes.

Q. When did you prepare it?

A. I don't remember.

Q. Was it before or after the fee

24 petition was --

L.A. REPORTING (312) 419-9292

A. I don't remember.

Q. Does it include all of your work

3 experience up to the point that the fee petition was

4 submitted?

A. Yes.

MR. PARTEE: Again, in the interest of

time, we'd like to move to admit the resume

without going through the document, but if

counsel insists on that, we can go through

the document.

HEARING OFFICER WEBB: Do you want

them to go through the document?

MR. JAWGIEL: If he can go through the

document and pick out the relevant experience

with respect to his involvement in this case,

certainly that's important. I think that his

involvement at Knox College is irrelevant.

I'm sure he had a wonderful time there and

did quite well, but it has no relevance. But

certainly if he wants to pick out what is

actually pertinent in this document, that's

what I'm asking him to do. Beyond that, the

document is irrelevant.

HEARING OFFICER WEBB: Well, if you'll

L.A. REPORTING (312) 419-9292

withdraw your objection, if he does that, we

can go ahead and do that. Otherwise --

MR. JAWGIEL: Certainly I am not

asking you to go through, hey, did you go to

college and did you have a good time? Who

cares? But get to the heart of what's

important in this CV with respect to what

we're dealing with here today. That, I

think, he has to do.

MR. PARTEE: Or you can do it on

cross.

MR. JAWGIEL: No, I don't think so.

We have to qualify your witness.

MR. PARTEE: As what? Qualify the

witness as what, an expert? Because you've

moved to exclude any opinions. So if we're

qualifying on expert what are we qualifying

him for?

MR. JAWGIEL: I am not going to engage

with counsel across the table. If he wants

to try to coax me into some sort of argument,

that's not going to occur.

HEARING OFFICER WEBB: Yes, I am going

to admit this and let the Board pick out the

L.A. REPORTING (312) 419-9292

relevant information. I think it stands on

its own, and I don't see a problem with it.

3 BY MR. PARTEE:

Q. Mitch, did you have any trial

5 experience prior to trying the underlying case here?

A. Yes.

Q. Let me ask you about jury trials.

8 About how many jury trials had you done before the

9 trial in this case?

A. Half a dozen, maybe a few more than

11 that.

Q. Had you done any bench trials before

13 this case?

A. Yes.

Q. Approximately how many?

A. Quite a few. Maybe over a hundred.

Q. And had you done any administrative

18 hearings before the trial in the underlying case

19 here?

A. Yes.

Q. Approximately how many?

A. Two or three.

Q. Let me ask you about the benefits

24 resulting to the People. Was there any benefit

L.A. REPORTING (312) 419-9292

1 resulting to the People as a result of underlying

2 case?

MR. JAWGIEL: I am going to object to

the opinion as being expressed pursuant to my

motion in limine, and that the qualification

from this gentleman to speak on behalf of the

People.

HEARING OFFICER WEBB: Overruled. You

may answer.

A. Well, there is a benefit to

11 environment enforcement. This case was an

12 environmental enforcement case related to water

13 pollution, violations of the Clean Water Act.

14 Violations of the NPDES permit and the People of

15 Illinois have a constitutional right to a healthy

16 and safe environment, and the environmental

17 enforcement is part of the benefit of that.

Q. Who was the prevailing party after the

19 underlying case?

A. The People of the State of Illinois.

Q. And the underlying case resulted in a

22 Board order?

A. Yes.

Q. For purposes of the Act, sir, to the

L.A. REPORTING (312) 419-9292

1 underlying case --

MR. JAWGIEL: I am going to object to

the opinion pursuant to the motion in limine.

HEARING OFFICER WEBB: I'll allow it.

You can answer.

A. I think so.

7 BY MR. PARTEE:

Q. How so?

A. Well, again the same thing I just

10 said. Environmental enforcement is important for

11 everybody in the State of Illinois. This was an

12 environmental enforcement case. To all People's

13 benefit.

MR. PARTEE: I have nothing further.

CROSS-EXAMINATION

16 BY MR. JAWGIEL:

Q. Mr. Cohen, isn't it true that you only

18 had one administrative hearing before the Skokie

19 Valley case?

A. No.

Q. Page 85 --

MR. PARTEE: Excuse me, do you have

copies of the transcript for us?

MR. JAWGIEL: No, I don't.

L.A. REPORTING (312) 419-9292

MR. PARTEE: How are we supposed to

move along with you?

MR. JAWGIEL: You knew -- you had the

opportunity at the deposition to have the --

I am not here to provide you with a

transcript.

MR. PARTEE: Do you have a copy for

the hearing officer?

MR. JAWGIEL: No, I don't.

MR. PARTEE: Okay.

MR. JAWGIEL: Page 8, line 1:

"Q "Fair enough. How many

hearings similar to the type of hearing

that we had with Skokie Valley were you

involved in? It doesn't have to be an EPA

case. Any sort of case in that similar

type of format with a hearing officer?

A When I practiced in Oklahoma, I

had one hearing before corporation counsel

which is a regulatory agency in Oklahoma."

21 BY MR. JAWGIEL:

Q. Did you give that answer to that

23 question?

A. Yes.

L.A. REPORTING (312) 419-9292

Q. Did you give any other references to

2 any other administrative hearing in your deposition?

A. In my deposition, the question wasn't

4 asked about administrative hearings. It was asked

5 about similar to the Pollution Control Board

6 hearing, so I did not include other administrative

7 hearings that I have done.

Q. Well, before this one, Mr. Cohen, did

9 you have any administrative hearings before the

10 Pollution Control Board?

A. No.

Q. So this was your first time presenting

13 a hearing before the Pollution Control Board; is

14 that correct?

A. Yes.

MR. PARTEE: Asked and answered.

17 BY MR. JAWGIEL:

Q. You have no experience with any

19 billing guidelines; do you sir?

A. Attorneys' legal fee billing

21 guidelines?

Q. That's correct.

A. No, I have no experience with that.

Q. You have no experience with the

L.A. REPORTING (312) 419-9292

1 American Bar Association guidelines; is that

2 correct?

A. Correct.

MR. PARTEE: I would object on

relevance grounds to the American Bar

Association billing guidelines.

7 BY MR. JAWGIEL:

Q. You are not familiar with any other --

HEARING OFFICER WEB: I will allow it.

I will see where the line of questioning is

going.

12 BY MR. JAWGIEL:

Q. You are not familiar with any other

14 organizations' billing guidelines or time keeping

15 guidelines; is that correct?

A. Correct.

MR. PARTEE: Objection in terms of

vagueness in terms of what organization

means.

MR. JAWGIEL: I think he's already

given the answer.

HEARING OFFICER WEBB: I'll allow it.

23 BY MR. JAWGIEL:

Q. Now, the Attorney General's office

L.A. REPORTING (312) 419-9292

1 doesn't have any policies or procedures with respect

2 to how the attorneys are supposed to bill their

3 time; is that correct?

A. Not that I know of.

Q. You indicated that you kept time on

6 Groupwise, which was a calendar program, I believe,

7 you had your attachments here as Exhibit 101 of the

8 People's case?

A. Correct.

Q. In Exhibit 101 of the People's case,

11 do you have that in front of you?

A. Yes, I do.

Q. That's your best description of what

14 the work you performed on any given day that's

15 listed there is; is that correct?

A. I don't want to use the word best

17 description, but it is a description of the work

18 performed.

Q. So you don't believe that to be your

20 best description; is that fair enough?

MR. PARTEE: I would object that that

mischaracterizes his testimony.

HEARING OFFICER WEBB: Could you

repeat the question.

L.A. REPORTING (312) 419-9292

MR. JAWGIEL: Sure, I can repeat it.

2 BY MR. JAWGIEL:

Q. What we see in Exhibit 101 is not

4 necessarily the best description you could give any

5 task you perform on any given day or that did you

6 perform on any given day; is that correct?

A. It sounded like your question was this

8 is not the best description I could give.

Q. That's correct.

A. No, this is not the best description I

11 could give related to work I did on a given day.

Q. With respect to this program, it is

13 not a time slip or time keeping program; isn't that

14 correct?

A. Correct.

Q. This is a calendar program that you

17 were typing on; is that correct?

A. Correct.

Q. And you were limited with respect to

20 the space you were given with respect to your

21 description; isn't that correct?

A. I don't know that.

Q. Okay. So you don't know whether or

24 not as we look at Exhibit 101 whether you had more

L.A. REPORTING (312) 419-9292

1 space to fill in a clearer description of what you

2 did on any given day? Is that fair enough?

A. From looking at the exhibit?

Q. Your familiarity with the program,

5 your drafting of these documents in Exhibit 101 and

6 looking at what's before you.

MR. PARTEE: I would object that

that's a compound question.

MR. JAWGIEL: No, it isn't. It's just

allowing the basis.

HEARING OFFICER WEBB: I will allow

it.

A. I don't know that you could tell from

15 looking at these sheets, but I believe you can type

16 more information into the area in Groupwise.

17 BY MR. JAWGIEL:

Q. So what you did here, you thought this

19 was sufficient with respect to your time; is that

20 correct?

A. Yes.

Q. Isn't it true that you didn't give a

23 detailed description because it allowed to you save

24 time with respect to the entries that are in Exhibit

L.A. REPORTING (312) 419-9292

1 101?

A. Yes.

Q. Now, you've also submitted an

4 affidavit before the Board that was false; isn't

5 that true with respect to costs?

A. I submitted an affidavit before the

7 Board which had a mistake in it or something I could

8 not figure out.

Q. And it was false; is that right?

A. It appears to have had a mistake in

11 it. I cannot say it was false.

MR. JAWGIEL: This will be

Respondent's Exhibit 100.

MR. PARTEE: This is my copy?

MR. JAWGIEL: No.

MR. PARTEE: You didn't bring copies

for anyone?

MR. JAWGIEL: No, I didn't bring

copies for anyone.

MR. PARTEE: We gave you 55 boxes or

something. I think it's inappropriate to use

exhibits without copies. You have already

read from the transcript without even giving

the witness a transcript.

L.A. REPORTING (312) 419-9292

MR. JAWGIEL: I don't need to give a

copy of the transcript.

MR. PARTEE: If you are impeaching the

witness with a transcript.

HEARING OFFICER WEBB: Generally when

you move something as an exhibit, you would

make copies for the other party, but let me

see what it is.

MR. JAWGIEL: Well, you could see all

the exhibit stickers. It's an attachment to

all of their petitions, Exhibit D. It's also

another exhibit to a deposition, and it was

produced by the State. It's actually

something that's in the record on this

proceeding so you can actually take judicial

notice of it.

HEARING OFFICER WEBB: Okay, go ahead.

18 BY MR. JAWGIEL:

Q. Mr. Cohen, can you tell me what

20 Exhibit 100 for the respondent is?

A. This is a copy of an affidavit that I

22 believe was attached to the closing rebuttal

23 argument filed with the Board.

Q. And the amount that's claimed in that

L.A. REPORTING (312) 419-9292

1 affidavit is false; isn't that correct?

MR. PARTEE: I believe that you asked

and he answered that question. I also think

you are misstating his answer to that

question when you asked him the first time.

HEARING OFFICER WEBB: Well, you have

asked. It has been asked and answered. I'll

give you some leeway.

MR. JAWGIEL: I asked him if the

amount was false. I didn't ask him if the

affidavit was false.

A. I can't say that the amount was false

13 or that the affidavit was false, but I was unable to

14 substantiate these numbers later.

15 BY MR. JAWGIEL:

Q. And you signed what is respondent's

17 Exhibit 100?

A. Yes.

Q. You stated in that affidavit that the

20 response to the affidavit or attachments are true

21 and accurate under oath; isn't that correct?

A. Yes.

Q. Now, let me show you, and I believe

24 this might actually be attached to your -- I'm going

L.A. REPORTING (312) 419-9292

1 to show you what I am going to mark as Respondent's

2 101, which I believe to be a portion of People's

3 Exhibit 100, which is the fee petition. This is the

4 affidavit regarding the costs. I'm looking at

5 Respondent's 101. Okay, 101 is one that you

6 submitted in your fee petition; isn't that correct?

A. Yes.

Q. And that has a different amount of

9 money that you claim as costs?

A. Yes.

Q. You never moved to withdraw

12 Respondent's Exhibit 100 from the record, did you?

A. No, I did not.

Q. You never moved to correct

15 Respondent's 100 from the record, did you?

A. No, I did not.

Q. And if the respondent didn't contest

18 your submission of Respondent's 100 in your rebuttal

19 argument, you would have received these expenses?

MR. PARTEE: Objection, argumentative.

Calls for a hypothetical, and I object on

foundation grounds as well.

MR. JAWGIEL: It establishes why we

contested this along with other reasons. It

L.A. REPORTING (312) 419-9292

is certainly one of the reasons the

respondent has a right to contest this and

led into more litigation following this

matter.

HEARING OFFICER WEBB: I will allow

you to answer it.

A. It is possible if the Board awarded

8 our full costs based on the closing rebuttal

9 argument, that we could have received the amount

10 indicated in the closing rebuttal argument affidavit

11 as opposed to the amount in the fee petition

12 affidavit.

13 BY MR. JAWGIEL:

Q. And the amount of that in the closing

15 rebuttal argument was an inflated number; isn't that

16 correct?

A. No.

Q. Do you have any technical background

19 in the area of environmental science or any science

20 whatsoever before coming to the Attorney General's

21 office?

A. Yes.

Q. You had a geology background; is that

24 correct?

L.A. REPORTING (312) 419-9292

A. Yes.

Q. Had you ever been involved in any

3 environmental sciences other than geology?

A. No.

Q. Had you been involved in any case

6 where you presented to the hearing regarding water

7 pollution?

MR. PARTEE: Object to the form of the

question.

10 BY MR. JAWGIEL:

Q. Prior to the Skokie Valley case.

HEARING OFFICER WEBB: I'll allow it.

A. Can you repeat that question? I'm

14 sorry.

15 BY MR. JAWGIEL:

Q. Certainly. Were you involved in any

17 cases prior to the Skokie Valley case that involved

18 the issue of water pollution that you brought to the

19 hearing?

A. Not that I brought to hearing.

Q. Were you involved in any cases before

22 the Skokie Valley case that involved the issue of

23 renewal of permit that was brought to hearing?

A. I think so.

L.A. REPORTING (312) 419-9292

Q. Now, with respect to the renewal of

2 permit, that's basically just determining whether

3 the respondent has filed and received the requested

4 permit and on a timely basis; isn't that correct?

MR. PARTEE: Objection, argumentative.

HEARING OFFICER WEBB: I will allow

it.

A. It's not that simple to me, no.

9 BY MR. JAWGIEL:

Q. Oh, okay. So finding out whether or

11 not the existing permit expired and whether or not

12 the respondent renewed the permit within the time of

13 the expiration or allotted time to renew the permit,

14 that's not the issue that was involved in this case?

A. That's one of the issues that was

16 involved, yes.

Q. And I am referring to the renewal of

18 the permit issue?

A. Correct.

Q. You consider that to be a difficult

21 issue to bring to hearing?

MR. PARTEE: Objection, argumentative.

MR. JAWGIEL: He gave that opinion.

He was asked specifically what difficulties

L.A. REPORTING (312) 419-9292

do you have?

HEARING OFFICER WEBB: That's true.

MR. JAWGIEL: He opened the door wide

open.

HEARING OFFICER WEBB: You may answer.

A. Do I consider the issue of a permit

7 renewal a difficult issue?

MR. JAWGIEL: I'm going to object to

him asking me a question. If he doesn't

understand the question, he certainly should

ask me. I am not here to answer his

questions.

HEARING OFFICER WEBB: Would you like

the question repeated? Would you like to

have the reporter repeat it?

MR. JAWGIEL: Sure, we can do that.

No problem.

(Record read as

requested.)

A. Yes, I consider that to be a difficult

22 issue to bring to hearing.

23 BY MR. JAWGIEL:

Q. With respect to the NPDES violations,

L.A. REPORTING (312) 419-9292

1 particularly regarding the reporting violations

2 against Skokie Valley and the other respondent

3 that's basically determining whether they filed

4 their NPDS report on a timely basis; isn't that

5 correct?

A. There were several factors regarding

7 the MM and discharge monitoring report. One of the

8 issues had to do with not filing DMR's at all.

Q. Not filing DMR's. In going through

10 and finding whether there's gaps in the filing,

11 correct?

A. Yes.

Q. That could be done by a paralegal;

14 isn't that correct?

MR. PARTEE: Objection, badgering the

witness.

HEARING OFFICER WEBB: You are getting

argumentative, Mr. Jawgiel. Do you want to

give some leeway, but if you could, I'm not

sure where you are going.

MR. JAWGIEL: Very simple.

22 BY MR. JAWGIEL:

Q. Does it take an attorney's expertise

24 to go through the document with respect to the NPDS

L.A. REPORTING (312) 419-9292

1 reports and put them in a chronological order and

2 determine whether or not there's any gaps in the

3 reporting in your experience?

A. In my experience, no, other people

5 could determine the violation, but they could not

6 bring it to hearing.

Q. Fair enough. So it's simply figuring

8 out whether there was any gaps in the reporting and

9 saying that they didn't report it or didn't report

10 it in any timely manner; isn't that correct?

A. I don't understand that question.

Q. With respect to the NPDS (sic)

13 reports --

MR. PARTEE: NPDES report.

15 BY MR. JAWGIEL:

Q. The issue boils down to putting the

17 reports filed by the respondent in a chronological

18 order and figuring out if there are gaps, right?

MR. PARTEE: Objection, asked and

answered. Argumentative.

HEARING OFFICER WEBB: I'm going to

allow it.

A. That is the issue in determining the

24 violation, yes.

L.A. REPORTING (312) 419-9292

1 BY MR. JAWGIEL:

Q. Now, you said that there were a couple

3 of reports that were false, that were allegedly

4 filed by the respondents; is that correct?

A. Correct.

Q. And the basis of the allegations that

7 they were false boils down to that the reports were

8 identical in the amounts of the discharge; isn't

9 that correct?

A. That is correct.

Q. Now, you consider that to be a

12 difficult issue to determine by going through the

13 report to figure out whether the numbers written on

14 the reports are the same numbers as the prior month

15 or two months prior? Is that a difficult issue for

16 you?

A. It's not a difficult issue in terms of

18 a violation. It is a difficult issue in terms of

19 bringing it to hearing.

Q. The difficulty of bringing it to

21 hearing is that you have to lay a foundation of the

22 reports you receive and determine whether or not

23 some of those reports have the same numbers on it;

24 is that the difficulty in bringing it to hearing?

L.A. REPORTING (312) 419-9292

A. There's a lot more than bringing

2 something to hearing before the Pollution Control

3 Board than simply presenting the evidence at the

4 hearing.

Q. Now, with respect to the pollution in

6 the water, Skokie Valley cleaned up the water; did

7 they not?

MR. PARTEE: Objection, relevance,

grounds. We are not here to relitigate the

underlying case.

MR. JAWGIEL: We got into the idea of

complexity and violations and everything.

I'm just saying Skokie Valley cleaned the

water on its own.

HEARING OFFICER WEBB: Are you going

to relate this back to work that he did?

MR. JAWGIEL: Yes.

HEARING OFFICER WEBB: Okay. Then

I'll allow it.

A. What time frame are you talking about?

21 BY MR. JAWGIEL:

Q. The whole time before this case came

23 to hearing Skokie Valley had cleaned the water

24 system up on its own; did it not?

L.A. REPORTING (312) 419-9292

A. Again, that's difficult to answer with

2 a yes or no.

Q. Why is it difficult for you to answer

4 that yes or no?

A. The oil that was coming through the

6 drain tile that went through the Skokie Valley

7 property had been noticed on the Avon Fremont

8 drainage ditch, and I may have the name wrong for

9 months before the shareholders of Skokie Valley

10 Asphalt found the leak and then took responsibility

11 for it.

Q. That's not my question though. My

13 question to you has to do with Skokie Valley

14 actually cleaned up the water situation on its own;

15 isn't that correct?

A. After they took responsibility for the

17 leak, they did put booms up to control further

18 spillage, but the amount of oil that had gone down

19 that creek and into Third Lake or Grayslake before

20 that was not addressed.

Q. You don't know what that is, though?

MR. PARTEE: Objection, now we are

getting --

HEARING OFFICER WEBB: This is getting

L.A. REPORTING (312) 419-9292

way off track. We are running way late. We

need to get back on track to any questions

you have regarding work that was done. I

don't want to talk about the results of the

enforcement case.

MR. JAWGIEL: Well you certainly

allowed them to go into the results and

whether or not there was an award entered and

what the benefit was to the State and things

of that nature. I certainly think that I

should be able to do the same in establishing

that the respondent was the one who flipped

the bill to clean up this water system on its

own.

MR. PARTEE: The respondent's bill is

not at issue. It's the complainant's bill.

HEARING OFFICER WEBB: Well, that's

true. I'll give you a little leeway, but I

want to move on quickly this line of

questioning.

MR. JAWGIEL: I'm not rushing my line

of questioning because we are running late.

The People took a methodical almost two and a

half hours presenting this witness, and we

L.A. REPORTING (312) 419-9292

started this hearing an hour late.

HEARING OFFICER WEBB: Well, then I'm

going to sustain his objection then.

MR. JAWGIEL: Fair enough. If you are

going to sustain his objection because we

don't have enough time, that's fine.

MR. PARTEE: I think you are

misstating her ruling now.

HEARING OFFICER WEBB: My ruling is as

to relevance, but please continue.

11 BY MR. JAWGIEL:

Q. Now, when you prepared your fee

13 petition, cost fee petition in this case, and you

14 charged, I believe, September 9, 4 hours cost/fee

15 petition; September 15, 2004, cost/fee petition 2.5

16 hours --

MR. PARTEE: For the record, are we on

People's 100?

MR. JAWGIEL: Yes.

20 BY MR. JAWGIEL:

Q. As a matter of fact all of the entries

22 that we have in Respondent's Exhibit 100 in the

23 affidavit attached to the fee petition which I

24 believe is Exhibit A; is that correct?

L.A. REPORTING (312) 419-9292

A. Yes.

Q. You determined these entries by going

3 through your entire calendar from May 29, 2002,

4 through and including September of 2004; is that

5 right?

A. Yes.

Q. At that point you didn't realize that

8 you could actually print out from the calendar

9 program; isn't that correct?

A. I think I realized I could print out

11 single sheets, but I did not realize I could print

12 them out in bulk.

Q. Okay. So what you actually did then,

14 when you determined your time of about 6-1/2 hours

15 cumulatively to come up with this fee petition is

16 that you actually took the time to write out by hand

17 by going from day-to-day in your calendar program

18 for about four years; is that right -- two years.

A. I wouldn't say day-to-day, but I did

20 go through for through each entry for Skokie Valley

21 Asphalt to tabulate this.

Q. Now, what we see in your affidavit

23 attached to the fee petition and what is in People's

24 Exhibit 101, the text is not the same. You made

L.A. REPORTING (312) 419-9292

1 some changes; isn't that correct?

A. It's very possible, yes.

Q. So, for example, on the first entry

4 you have here, from May 29, 2002, if we look at

5 People's 101, you have "Brief meeting with Kelly.

6 Call to David O'Neill." You see that?

A. Yes.

Q. But if we look at your fee petition on

9 Exhibit A of the fee petition, the first entry for

10 May 29, 2002, you had, "Meeting Re: File transfer.

11 Call to David O'Neill."

A. Correct.

Q. And you had said, "Made some changes

14 and modifications."

A. Correct.

Q. Which one of these two is the best

17 representative of the time that you actually spent?

A. They are both equally representative

19 of the time I actually spent.

Q. Okay. Then why did you make the

21 change and took Kelly's name out of the meeting

22 part?

MR. PARTEE: I think that's objection

asked and answered.

L.A. REPORTING (312) 419-9292

HEARING OFFICER WEBB: You can answer

it.

A. I don't know.

4 BY MR. JAWGIEL:

Q. Now, you took over and you met with

6 Kelly because Kelly was leaving the Attorney

7 General's office; is that correct?

A. Yes.

Q. And you needed to get familiar with

10 this case because you hadn't been on the case

11 before; is that right?

A. Yes.

Q. So these entries with respect to

14 meeting with Kelly, substitution of attorneys, all

15 these charges that we see, review motion to compel,

16 case status hearing, file review, file review,

17 that's because you needed to get up to speed in the

18 case and get familiar with the case?

MR. PARTEE: Objection. Which time

are you specifically referring to?

MR. JAWGIEL: May 29, 2002; June 11,

2002; June 18, 2002; June 19, 2002; July 18,

2002.

24 BY MR. JAWGIEL:

L.A. REPORTING (312) 419-9292

Q. Isn't that right?

A. Yes.

Q. So what you are saying is that the

4 respondent should be responsible because the

5 Attorney General's office has a change in personnel

6 in order for the Attorney General, in order to get

7 its attorney familiar with the case; is that

8 correct?

A. I'm not saying that. You said that

10 for me. That's not what I said.

Q. Now, how long did the meeting with

12 Kelly take as opposed to the phone call with David

13 O'Neill?

A. I don't -- well, Kelly was, I believe

15 Kelly was present for the meeting, and the call to

16 David O'Neill, I had never -- I don't believe I've

17 talked to David before this call. I think we called

18 together.

Q. Okay. So was the meeting an hour?

A. The meeting was at least an hour, yes.

Q. And what was discussed?

A. I would assume the transfer memo.

Q. I'm going to object to any assumption.

24 I want to know what specifically was discussed, not

L.A. REPORTING (312) 419-9292

100

1 assumption, not speculation. What was discussed?

HEARING OFFICER WEBB: Would you like

to rephrase your answer, Mr. Cohen.

A. I don't remember specifically.

5 BY MR. JAWGIEL:

Q. Now, we go down to the next entry,

7 June 11, 2002. It says, "substitution," I assume

8 SUP -- I'm sorry, "SUBST" is substitution; is that

9 correct? I'm talking about June 11, 2002, the entry

10 there; do you see it?

A. Yes.

Q. What does SUBST period abbreviate?

A. Probably substitution of attorney.

Q. "Agreed motion to cancel and

15 reschedule." How long did it take you to do the

16 substitution of attorney?

A. I don't recall.

Q. And how long did it take you to do the

19 motion or agreed motion and cancel to reschedule?

A. I don't recall.

Q. Was there any research done for the

22 substitution of attorney?

A. Probably.

Q. Do you know?

L.A. REPORTING (312) 419-9292

101

A. I believe this was my first

2 substitution attorney before the Pollution Control

3 Board, so I believe I probably looked up the rules

4 related to that.

Q. Okay. So because of your inexperience

6 with the Pollution Control Board, you had to do some

7 research on a substitution of attorney; is that

8 correct?

A. Probably.

Q. And you billed your time for the

11 substitution of attorney and the research?

A. Yes.

Q. Now, did you type your own

14 substitution of attorney?

A. Yes.

Q. Did you break that time out of the

17 time that you spent preparing the substitution for

18 attorney or is it incorporated in what you claim is

19 your time on that?

A. It's incorporated in here.

Q. So you didn't break out the clerical

22 experience of typing a document from the attorneys'

23 time and actually drafting a document; is that

24 correct?

L.A. REPORTING (312) 419-9292

102

A. I don't know of a difference between

2 clerical versus attorney. I do almost all of my own

3 typing.

Q. Okay. So all the documents where it

5 requires typing, you didn't break out clerical from

6 attorneys' work in the entire affidavit that we have

7 here; is that correct?

MR. PARTEE: I would object on

foundation grounds because it assumes facts

not in evidence, because he is assuming that

there would have otherwise have been a

clerical expense.

MR. JAWGIEL: Clerical expense is an

overhead and not reasonable fees in a

petition. It's well established in the

Appellate Court.

MR. PARTEE: Don't know what's so

funny. I guess it's unclear for me.

MR. JAWGIEL: Fair enough. We can go

through each and every entry. I'd be happy

to.

MR. PARTEE: I am not going for that.

HEARING OFFICER WEBB: Okay, regarding

what we are assuming clerical expense is.

L.A. REPORTING (312) 419-9292

103

MR. PARTEE: There's been no testimony

that he used a secretary such that he could

break out a clerical expense. I assume you

have to have a secretary is what he means by

clerical expense, but that's not explained

either.

HEARING OFFICER WEBB: Would you like

to lay a foundation?

MR. JAWGIEL: Certainly.

10 BY MR. JAWGIEL:

Q. Did the Attorney General's office have

12 secretaries who were, from the time you were

13 involved in this case on May 29, 2002 until the

14 completion of this affidavit on September 15, 2004?

A. Yes.

Q. Did those secretaries type documents?

A. Some do.

Q. Did you have paralegals that would

19 prepare motions or do research?

A. No.

Q. I thought there was some testimony

22 from you that you drafted the affidavit, which is

23 now Respondent's Exhibit 100, that there was an

24 assistant to the paralegal that put the numbers

L.A. REPORTING (312) 419-9292

104

1 together?

A. I don't believe that was at this

3 hearing, but we did discuss that at the deposition.

Q. I see. So there were assistants to

5 the paralegals, but you didn't have paralegals?

A. No, the office has paralegals.

Q. And what's their function?

A. Mostly administrative, not related to

9 individual cases.

Q. Well, other than mostly

11 administrative, what else do they do?

A. Monthly reports, ordering files, help

13 make up exhibit books for trial.

Q. So they help with your trial prep?

A. They helped prepare exhibit books when

16 it's time for trial. I'm sure they have lots of

17 other functions, but those are the ones I know of.

Q. Okay. So did you ask anybody at the

19 Attorney General's office whether they had a motion

20 for substitution of attorney that had been presented

21 before the Illinois Pollution Control Board?

A. Probably.

Q. And did you use that prior motion as a

24 format for you to prepare your motion?

L.A. REPORTING (312) 419-9292

105

A. Probably.

Q. So you actually had a motion for

3 substitution of attorneys most likely in front of

4 you when you drafted your motion; is that correct?

A. It's very likely that I did.

Q. I see. How much time did it take for

7 you to do the agreed motion to cancel and

8 reschedule?

A. I don't know.

Q. With respect to the entry on

11 June 11, 2002, which is an agreed motion to cancel

12 and reschedule, you typed that motion yourself?

A. Yes.

Q. Did you reduce the time that you

15 recorded for the time that it took you to type the

16 document?

A. No.

Q. You characterized yourself as being an

19 extremely poor typist; is that correct?

A. No.

Q. How would you characterize yourself as

22 a typist?

A. Not the fastest in the world but okay.

Q. Sir, isn't it true that you believe

L.A. REPORTING (312) 419-9292

106

1 you can write faster than you can type?

A. When you asked me that in deposition I

3 thought so, but since then I've been comparing my

4 handwriting to my typing, and I don't know that I

5 would say that any more.

Q. So at your deposition you told us that

7 you could write faster than you typed, but since

8 then you have decided that is not true?

MR. PARTEE: Objection. That's not an

improper impeachment at all.

MR. JAWGIEL: I'm just characterizing

what he said.

HEARING OFFICER WEBB: I'll allow it.

A. Yes, I think now that I've watched

15 myself handwrite, write some things, compared to my

16 typing speed, I don't think my handwriting is faster

17 than my typing speed.

Q. And that's today, not necessarily back

19 in on May 29, 2002; is that correct?

A. Correct.

Q. Is it true that back in, let's say

22 June 11, 2002, your handwriting was faster than your

23 typing?

A. I don't know.

L.A. REPORTING (312) 419-9292

107

Q. On June 18, 2002, can you read that

2 entry to us and what it means?

A. It looks like "reviewed

4 motion/complaint and case status hearing."

Q. How long did the case status hearing

6 take?

A. They usually don't take long. I don't

8 know exactly how long.

Q. Fifteen minutes?

A. Could be.

Q. Isn't your entry for that an hour; is

12 that right?

A. Yes.

Q. It says review motion. What motion

15 did you review?

A. I don't remember.

Q. How long did it take you to review it?

A. I don't remember.

Q. And in your review of the motion, did

20 you just basically read it; is that correct?

A. Probably. It was probably review the

22 motion to cancel and reschedule, but I'm not sure.

Q. That's a motion you drafted seven days

24 earlier?

L.A. REPORTING (312) 419-9292

108

A. Yes.

Q. You reviewed it?

A. I reviewed a motion, yes.

Q. But you don't know which one?

A. I'm not sure.

Q. Is there any way for us to figure it

7 out?

A. Not that I know of.

Q. Now, would you be of the opinion that,

10 you know, if you worked less than an hour on the

11 file, you didn't put it in your billing statement,

12 that's not necessarily true because if you did

13 multiple tasks, you just lumped them all together in

14 a block bill and then you would record your time; is

15 that correct?

MR. PARTEE: I would object that you

are misstating his earlier testimony. That

was not an opinion. That was his factual

testimony.

HEARING OFFICER WEBB: Would you

repeat the question?

MR. JAWGIEL: I can. I could rephrase

it if it would help.

HEARING OFFICER WEBB: Would you

L.A. REPORTING (312) 419-9292

109

rephrase it.

2 BY MR. JAWGIEL:

Q. You had given your statement earlier

4 in your testimony that you would not bill for

5 anything less than an hour on the Skokie Valley

6 case, is that right, on any given day?

A. Yes.

Q. But if something took 15 minutes, like

9 a case status hearing a review of a motion, you

10 would bill an hour; is that right?

A. If all the work that I did that day

12 all equaled more than an hour, it would be billed.

Q. Do you know how many pages you

14 reviewed when you reviewed the motion on June 18,

15 2002?

A. No.

Q. On June 19, 2002 and July 18, 2002 you

18 have "filed review"?

A. Yes.

Q. Can you specifically tell me what you

21 reviewed on June 19, 2002?

A. No.

Q. The purpose of your file review at

24 that time was for you to get acquainted with the

L.A. REPORTING (312) 419-9292

110

1 file because Kelly was leaving?

A. Yes.

Q. The same is true, isn't it, with

4 respect to July 18, 2002, you don't know what you

5 reviewed specifically on that day; is that correct?

A. Correct.

Q. And the purpose for that review was

8 because Kelly was leaving as well and you needed to

9 become acquainted with the file?

A. At this point the file was assigned to

11 me so that's why I was reviewing it.

Q. Because you needed to become

13 acquainted with it?

A. Yes.

Q. Now, on July 19, 2002, it says, "PCB

16 status hearing." What does that mean?

A. Pollution Control Board status

18 hearing.

Q. How long did that take?

A. I don't know.

Q. And then it says, "draft amended

22 complaint." Did you use the prior complaint to

23 draft the amended complaint?

A. Yes.

L.A. REPORTING (312) 419-9292

111

Q. And what changes did you make from the

2 prior complaint to this draft amended complaint?

A. I believe this is when the complaint

4 was changed to add the Frederick brothers

5 individually.

Q. So what you did was you took the

7 complaint that was existing and you added two

8 respondents to it; is that correct?

MR. PARTEE: Objection, asked and

answered.

HEARING OFFICER WEBB: You can answer.

A. Yes.

13 BY MR. JAWGIEL:

Q. And how long did it take you to do

15 that?

A. I don't recall specifically.

Q. Did you type that yourself?

A. I don't remember.

Q. Did you have to draft the entire

20 complaint over or was that already in the system for

21 the Attorney General so that you could modify the

22 existing complaint?

MR. PARTEE: Object to the form.

A. I don't recall the original complaint

L.A. REPORTING (312) 419-9292

112

1 being on the word processor because the case was so

2 old. It could have been, but I don't recall.

Q. Well, I'm not necessarily referring to

4 the original complaint. I'm referring to the

5 complaint before you drafted the amended complaint.

6 Was that the original complaint?

MR. PARTEE: Object to the form.

HEARING OFFICER WEBB: Overruled.

A. There might have been an amended

10 complaint before this one. I think the water

11 pollution might have been added at some point, but

12 again, I think that was quite a while before so I

13 just don't remember whether this was, whether the

14 current complaint at the time was accessible to me

15 on word processor.

16 BY MR. JAWGIEL:

Q. Now, drafting the amended complaint,

18 was there anything with respect to your expertise as

19 an attorney that was required in order to draft the

20 amended complaint?

A. Yes.

Q. And what expertise did you have in

23 order to actually draft the amended complaint? Not

24 deciding to change the complaint but actually

L.A. REPORTING (312) 419-9292

113

1 drafting it?

A. The individual liability issue is

3 somewhat complicated and tricky, and I recall seeing

4 documents with the Fredericks names on them that I

5 might have used to formulate the decision to add

6 them individually.

Q. Apparently. And I'm asking that your

8 answer be struck as nonresponsive.

My question is not the decision to

10 add the Fredericks. My question to you is, in the

11 actual drafting of the amended complaint, the actual

12 physical drafting of the document, what expertise as

13 an attorney did you need?

MR. PARTEE: Object to the form of the

question.

HEARING OFFICER WEBB: I, myself,

don't really understand what you are getting

at either.

19 BY MR. JAWGIEL:

Q. We will take a step back. At some

21 point in time you reviewed the file, you then make a

22 decision as an attorney to amend the complaint to

23 add the Frederick brothers; is that a fair

24 characterization of your decision process at this

L.A. REPORTING (312) 419-9292

114

1 point?

A. Yes.

MR. PARTEE: I would object on

relevance grounds and where we're going with

all this.

MR. JAWGIEL: This is right on point

with respect to the entries that they are

submitting for payment of bills that they

want us to reimburse them for. So I'm trying

to flush out what he did on any given day

that he is claiming that we owe him four

hours of attorney work for.

HEARING OFFICER WEBB: How many are we

going through?

MR. JAWGIEL: Pretty much all of them.

HEARING OFFICER WEBB: On this page?

MR. JAWGIEL: I think we can lump some

of them when we get to the closing argument.

Trial prep, those I could put them together

certainly.

HEARING OFFICER WEBB: I would

encourage you to summarize.

MR. JAWGIEL: As we get through some

of these other ones and we get into these

L.A. REPORTING (312) 419-9292

115

blocks, yes, I certainly can.

HEARING OFFICER WEBB: Let's go off

the record a moment.

(Short recess taken.)

HEARING OFFICER WEBB: We have just

had a discussion off the record regarding

this hearing. It is 3:00 o'clock. The

hearing was scheduled as a half a day

hearing. We still have quite a bit of

testimony with respect to Mr. Cohen if

Mr. Jawgiel plans to go through all of these

expenditures, and then we still have two

other witnesses. We have discussed possibly

stipulating to some testimony. We'll try to

get through as much as we can. I don't know

if this hearing will be continued or not. I

have not decided that at this point, but our

court reporter only has two hours worth of

supplies left with us, and I would like to

note for the record that I did set this

hearing, both parties were present when I set

this hearing, and I was advised that this

could be done in one afternoon and honestly

should be done. There's no reason that it

L.A. REPORTING (312) 419-9292

116

shouldn't be done in one half afternoon, but

having that said that, Mr. Jawgiel, please

continue your cross-examination of Mr. Cohen.

Please summarize where you can.

MR. JAWGIEL: We will stipulate that

we will not use the reporter's supplies as

any sort of issue.

HEARING OFFICER WEBB: I apologize for

referencing the reporter. Our decision to

continue or not with this hearing is in no

relation to her. Please continue.

12 BY MR. JAWGIEL:

Q. Getting back to the July 19, 2002

14 entry, does drafting the amended complaint include

15 your decision making process to actually add the

16 Fredericks as a respondent or was that done during

17 the file review in the prior entries?

A. It was probably both.

Q. Both. Why did it take you two times

20 to determine to do that?

A. Adding individual liability in an

22 environmental case is a fairly complicated issue,

23 and it requires a lot of thought, at least for me.

Q. How much time did it take in the

L.A. REPORTING (312) 419-9292

117

1 section for draft amended complaint for you to

2 determine to add the Fredericks individually?

A. Well, if at the point I started

4 drafting, I probably made the decision, otherwise I

5 wouldn't have started drafting the complaint.

Q. Okay. And how much time did it take

7 you to type the draft amended complaint?

A. I don't know specifically.

Q. It says prep on July 26, 2002, it says

10 "prep amended complaint for filing"?

A. Correct.

Q. And you charged two hours for that?

A. Yes.

Q. What sort of attorneys' expertise is

15 needed in order to prepare or prep an amended

16 complaint for filing?

A. Notices, certificates of service,

18 arranging for the document to be filed.

Q. Is that a clerical task?

A. What?

Q. Prepping a complaint for filing.

MR. PARTEE: Objection, asked and

answered.

HEARING OFFICER WEBB: I think it was,

L.A. REPORTING (312) 419-9292

118

but go ahead.

A. Not for the Attorney General's office.

3 A lot of that work is done by the attorneys.

4 BY MR. JAWGIEL:

Q. But you didn't go to law school to

6 learn how to prepare an amended complaint for

7 filing?

MR. PARTEE: Objection, argumentative.

HEARING OFFICER WEBB: Sustained.

10 BY MR. JAWGIEL:

Q. Now, the notice of filing, that's a

12 form that the Attorney General's office has in their

13 computer system, word processing system?

A. Some assistant Attorney General's have

15 that form in their word processing system.

Q. Did you?

A. At that point, I don't think so.

Q. So you had to actually draft it, type

19 it out long hand, so to speak, the entire document?

A. Probably.

Q. And that's why you charged two hours

22 for it; is that correct?

A. No.

Q. Because you had to type it?

L.A. REPORTING (312) 419-9292

119

A. No. I charged two hours on July 26,

2 because I spent two hours or more working on the

3 Skokie Valley Asphalt case.

Q. What else did you do other than

5 prepare the amended complaint for filing on July 26,

6 2002?

A. It looks like that's all I did.

Q. All right. "Correct notice of filing

9 on July 29, 2002, for one hour." What did you do in

10 order to correct the notice of filing?

A. There was a -- I don't know if it was

12 new or not, but there was a Board rule or regulation

13 that said you had to have specific language in

14 either in the notice of filing or in the document

15 that was sent to the respondent's. I don't remember

16 the exact language right now, but it was not in the

17 original notice of filing that was probably filed on

18 July 26th either. We caught the mistake or the

19 Board caught the mistake and told us that and I

20 corrected it.

Q. Okay. So basically you, when you

22 prepared the amended complaint for filing on July

23 26, 2002, you made a mistake in the notice of

24 filing?

L.A. REPORTING (312) 419-9292

120

A. Correct.

Q. And then you took another hour to

3 correct the notice of filing?

A. Correct.

Q. And you believe that that's a charge

6 that should be paid for by Skokie Valley because you

7 submitted it in your affidavit; is that correct?

A. I believe it indicates work that I did

9 on July 29th related to Skokie Valley Asphalt case.

Q. Now, with respect to what we have here

11 in your exhibit, Exhibit A to the petition for fees,

12 this is an estimate of your time; isn't that

13 correct?

A. What do you mean by estimate?

Q. Well, you say in your petition on

16 numerous occasions that particularly when you are

17 referencing the exhibits, that these are estimates

18 of the time spent by the attorneys. For example --

MR. PARTEE: Are we on People's 100?

MR. JAWGIEL: People's 100, page two.

"Reasonable attorneys' fee and conservative

estimate of AAG Cohen spent prosecuting this

case is five."

MR. PARTEE: I'd like to point out

L.A. REPORTING (312) 419-9292

121

that for the record that he misread the

sentence.

A. I see the sentence, yes.

4 BY MR. JAWGIEL:

Q. They are estimates, is that right?

A. Yes.

Q. Mr. Murphy's bill, those are estimates

8 as well?

A. I don't want to answer for him.

Q. Well, you wrote it down here, did you

11 not. Further down in that paragraph "a conservative

12 estimate of time AAG Murphy spent," didn't you write

13 that?

MR. PARTEE: Would you point out that

it's footnoted with reference to Mr. Murphy's

affidavit?

MR. JAWGIEL: It doesn't matter. This

is an estimate. Mr. Cohen drafted this

document saying this is an estimate of

Mr. Murphy's time.

21 BY MR. JAWGIEL:

Q. Isn't that correct?

A. I drafted the document, yes.

Q. And you said it was an estimate of

L.A. REPORTING (312) 419-9292

122

1 Mr. Murphy's time?

A. Yes.

MR. PARTEE: Objection, asked and

answered.

A. Yes.

6 BY MR. JAWGIEL:

Q. You signed this document as we have

8 previously established?

A. Yes.

Q. So these aren't actual times spent,

11 these are estimates?

MR. PARTEE: Objection, asked and

answered.

MR. JAWGIEL: Isn't that correct?

HEARING OFFICER WEBB: Sustained.

THE WITNESS: I'm not hearing the

rulings, so.

HEARING OFFICER WEBB: Yes, it has

been asked and answered. In fact, I did just

think about a solution. I think we can do

this by representative example. I know you

don't want to do it by representative

example, but I think we can pull out, you

know, maybe ten more of the ones that you

L.A. REPORTING (312) 419-9292

123

deem most egregious to move things.

MR. JAWGIEL: I am going to make an

offer of proof if I am limited in my ability

for cross-examination of the witness. For

527 hours of attorney's times that he is

claiming at $150 an hour because this Board

thinks it's expeditious for me to pull out

examples. I don't believe the Appellate

Court will allow me to get this into evidence

this way by saying anything beyond the ten

examples that you've given, because the board

has not allowed you to do more than that is

what we are going to make our decision on.

So I will have to make an offer of proof if

I'm limited in that capacity, and my offer of

proof will basically indicate that you are

not allowing us to present evidence that

Mr. Cohen who said in his deposition very

clearly, he can't tell us what he

specifically did on any given day, he can't

tell us how to divide the clerical aspects,

the typing of his documents from his attorney

time, he can't tell us any of that. But if

you want to cut me off at the knees, that's

L.A. REPORTING (312) 419-9292

124

fine.

HEARING OFFICER WEBB: I think I'm

going to have to. I will allow you to make

your offer of proof.

MR. JAWGIEL: I'll make an offer of

proof at this time, and I'll have to ask

Mr. Cohen --

THE WITNESS: Could we go off the

record for a moment.

MR. JAWGIEL: Certainly if the People

want to make stipulation as to the facts.

MR. PARTEE: All right. Okay.

MR. JAWGIEL: Or allow his discovery

deposition to come into evidence.

(Discussion had off the

record.)

HEARING OFFICER WEBB: We have just

had a discussion off the record regarding

again the time constraints that we're under

today, and Mr. Jawgiel is going to make an

offer of proof for the line items that we're

just not going to have time to go through

piece by piece. The People are offering to

stipulate as to --

L.A. REPORTING (312) 419-9292

125

MR. PARTEE: We will stipulate that

Mr. Cohen did all of his typing, but we want

to make it clear that it's not as if

Mr. Cohen handwrote his pleadings and then

typed them afterwards. The initial draft of

Mr. Cohen's pleadings was done while he was

sitting at his computer. But to the extent

that constitutes his own typing, we would

stipulate to that with respect to all of his

time entries with the hope that that moves

this forward.

HEARING OFFICER WEBB: Mr. Jawgiel, do

you have any further cross not related to

this particular line of questioning?

MR. JAWGIEL: Yes, but I don't know

how we are going to determine in which of

these entries he actually performed typing

until we go through them. I don't know how

the Board is going to say, hey, look I see

this attachment, Exhibit A, to his petition

for attorneys' fees, and I'm going to have to

guess which one of these he actually did

typing because I don't know what he did on

any given day.

L.A. REPORTING (312) 419-9292

126

MR. PARTEE: For the record, there has

been two years of discovery on this case,

including a three hour discovery deposition

of Mr. Cohen.

MR. JAWGIEL: Mr. Cohen keeps

mentioning a discovery deposition. I don't

know what relevance a discovery deposition

has to a hearing, other than to impeach him.

MR. PARTEE: The point is you are not

guessing here. You have had the opportunity.

MR. JAWGIEL: We are not guessing.

This is evidence that comes into a hearing.

The discovery deposition is not necessarily

evidence.

MR. PARTEE: You said guessing. Those

aren't my words. You said guessing.

MR. JAWGIEL: I said the Board will

have to guess whether they get the evidence

if you listen to what I say, I will

appreciate.

HEARING OFFICER WEBB: Obviously, I

don't think the whole typing issue is as

relevant as you do.

MR. JAWGIEL: Well, the Appellate

L.A. REPORTING (312) 419-9292

127

Court says very clear that the attorney can't

charge at all for clerical tasks.

MR. PARTEE: As a matter of civility,

would you not interrupt the hearing officer

and me now?

HEARING OFFICER WEBB: Gentlemen, it's

okay. Please resume your cross-examination.

8 BY MR. JAWGIEL:

Q. Mr. Cohen, on August 20, 2002, you

10 wrote down "file review." What did you specifically

11 review that day?

A. I don't recall.

Q. How is it different than what you

14 reviewed on June 19, 2002 or July 18, 2002?

A. How is the entry on my --

Q. So your actual review that day?

A. I don't recall how it was different.

Q. Did you type any documents on August

19 20, 2002?

A. I doubt it.

Q. By the way, in May of 2002, let's say

22 in the year of 2002, what was your typing speed?

A. I have no idea.

Q. Can you give us an estimate?

L.A. REPORTING (312) 419-9292

128

A. No.

Q. On September 25, 2002 it says "Rev mo

3 to strike complaint." Is that right?

A. Yes.

Q. What does that mean?

A. Reviewed motion to strike complaint.

Q. And in the review of the motion to

8 strike the complaint, you basically read the motion;

9 is that correct?

A. Yes.

Q. Did you do anything else?

A. I don't recall.

Q. And how long of a motion was this?

A. I don't recall.

Q. And it took you an hour to review, to

16 read this motion?

A. I don't recall.

MR. PARTEE: Objection, asked and

answered.

HEARING OFFICER WEBB: Sustained.

21 BY MR. JAWGIEL:

Q. Your affidavit which is attached as

23 Exhibit A does not have a fee amount on any of the

24 entries; is that correct? You don't have the amount

L.A. REPORTING (312) 419-9292

129

1 that you are charging in your affidavit which is

2 Exhibit A? You have the amount of time, you have

3 the date, and you have a description, but you don't

4 have the actual fee?

A. Correct.

Q. All right. Now, on October 1, 2002,

7 what did you do?

MR. PARTEE: I would object that the

hearing officer has already decided we are

not going to go through every one of these

entries.

HEARING OFFICER WEBB: Are you still

going through them line by line because if

so, I mean, that sort of defeats the offer of

proof.

MR. JAWGIEL: I didn't accept their

offer of proof.

MR. PARTEE: I didn't make an offer of

proof.

MR. JAWGIEL: I didn't make an offer

of proof. I am doing the offer of proof. In

order for me to establish the offer of proof,

I have to go through line by line what he

would testify to if allowed to testify at the

L.A. REPORTING (312) 419-9292

130

hearing.

HEARING OFFICER WEBB: The whole point

of doing the offer of proof was to save time.

I mean, if you are going to go through it

line by line, I might as well allow the

testimony. It's not that the testimony was

inadmissible per se, the whole point is I

want you to pick some examples that you feel

are egregious.

MR. JAWGIEL: They are all egregious.

That's the whole point. There's not a single

entry in here that I can't say is not

egregious for one reason or another.

MR. PARTEE: Then let's move on.

MR. JAWGIEL: That's not the

testimony. I have got to bring it out in

testimony.

MR. PARTEE: Because you are not a

witness.

MR. JAWGIEL: That's right. I'm not a

witness. Very good, Mike.

HEARING OFFICER WEBB: Then I might as

well allow it. Then none of this testimony

regarding line items has been an offer of

L.A. REPORTING (312) 419-9292

131

proof. This is admissible testimony. But it

may be time that comes off Ms. Stonich's

time.

MR. PARTEE: I think counsel is trying

to make a run through your around your

earlier ruling that he is not going to do it,

but now he says he is going to do it in the

context of an offer of proof, which I think

is contrary to your ruling, and it's

certainly not productive.

HEARING OFFICER WEBB: Well, it is

contrary to the ruling, but I asked you if

you had any cross-examination that was not

related to these line items.

MR. JAWGIEL: Yes, I do. Certainly.

I am adamant that I am not going to be cut

off at the knees with respect to this. This

is the cornerstone witness of the State for a

fee position of a six figure amount that they

are claiming attorneys' fees for.

HEARING OFFICER WEBB: Then I will

allow you to go through it, but this may

affect your time at the end of the hearing.

MR. JAWGIEL: This amount is almost as

L.A. REPORTING (312) 419-9292

132

as much as a penalty, and this is not a whole

day. We started at 1:00 o'clock today. This

is not a full day hearing like we did last

time which lasted two days.

HEARING OFFICER WEBB: That's right

because you didn't ask for a whole day

hearing.

MR. JAWGIEL: The bottom line is this

hearing started an hour late, and I am being

penalized because we started late.

HEARING OFFICER WEBB: You may be

penalized. Go ahead and continue.

MR. JAWGIEL: I would like the record

to reflect that we are, instead of letting me

go through my testimony, we are wasting a lot

of time with trying to figure out what we are

going to do.

MR. PARTEE: The record should reflect

that Mr. Jawgiel is raising his voice every

time he speaks.

HEARING OFFICER WEBB: Mr. Jawgiel, I

am going to give you a warning. You need to

tone it down a notch, please.

MR. JAWGIEL: I will.

L.A. REPORTING (312) 419-9292

133

HEARING OFFICER WEBB: You may

continue.

THE WITNESS: Before you continue, may

I borrow a plain piece of paper. I'm having

trouble lining up these lines on this

exhibit.

7 BY MR. JAWGIEL:

Q. Mr. Cohen, with respect to your

9 entries regarding any work you did on discovery in

10 Exhibit A, isn't it true that you specifically can't

11 tell us what you reviewed on any given day?

A. Yes.

Q. And isn't it true with respect to your

14 entries on trial preparation where you put trial

15 prep, and I take that to mean trial preparation; is

16 that correct?

A. Correct.

Q. That you cannot tell us with any

19 specificity what you actually did specifically on

20 those days?

A. Correct.

Q. Same thing holds true with respect to

23 your entries regarding closing arguments. We see

24 entries, numerous entries regarding closing

L.A. REPORTING (312) 419-9292

134

1 arguments. You cannot state specifically what you

2 did on the dates that you took closing arguments; is

3 that correct?

A. At this time I cannot tell you what I

5 did approximately three years ago in relation to the

6 closing argument, so yes.

Q. And you can't tell us what you did

8 after reviewing your affidavit which you

9 specifically did on that day; isn't that correct?

A. Yes, the affidavit does not help in

11 defining what I did specifically on a day.

Q. Okay. And that would hold true to all

13 the entries, the affidavit does not specifically

14 tell you what you did on any given day?

A. The affidavit?

Q. Yes, the attachment.

A. The spreadsheet?

Q. You are calling the attachment to

19 Exhibit A the spreadsheet to the affidavit? I just

20 have it as Exhibit A, and there is an attachment of

21 entries, dates, description and time?

A. Well, with the time sheets attached to

23 the affidavit, as Exhibit A to People's Exhibit 100,

24 I can tell you how much time I spent working on the

L.A. REPORTING (312) 419-9292

135

1 Skokie Valley Asphalt case that day and generally

2 the type of work I did that day.

Q. Now, when you say generally with

4 respect to the closing rebuttal argument entries,

5 you can't tell us what you specifically did on those

6 days?

MR. PARTEE: Objection, asked and

answered.

9 BY MR. JAWGIEL:

Q. Is that correct?

MR. JAWGIEL: That is not asked and

answered. I never asked him about closing

rebuttal argument.

HEARING OFFICER WEBB: I'll allow it.

A. I cannot tell you with specificity

16 what part of the closing rebuttal argument I worked

17 on any given day.

18 BY MR. JAWGIEL:

Q. And wherever we see draft of motion or

20 prepare a motion or prepare discovery or prepare a

21 document, we can assume that you did the typing; is

22 that correct?

A. Yes.

Q. And the time entries that are on the

L.A. REPORTING (312) 419-9292

136

1 side include the time it took you to type; is that

2 correct?

A. Yes.

Q. Now, with respect to the $150 an hour,

5 you indicated that you found a case that indicated

6 that $150 an hour would be acceptable, is that

7 correct, or something along those lines, you said it

8 more eloquently than I asked the question.

A. Yes, I found a Pollution Control Board

10 case that indicated the $150 an hourly rate was a

11 reasonable rate.

Q. What was the issue in that case?

MR. PARTEE: Objection, relevance.

HEARING OFFICER WEBB: I'll allow it.

A. I don't remember at this time.

16 BY MR. JAWGIEL:

Q. What was the experience of the

18 attorney for the Attorney General who was bringing

19 that case?

A. I believe I know who it is, but I

21 don't know what his experience was at the time, and

22 I am not sure it was ever made part of the record in

23 that case.

Q. I see. Do you know what the

L.A. REPORTING (312) 419-9292

137

1 complexities of the case were?

A. No.

Q. Do you know how long the case had been

4 going on for?

A. Well, let me just suggest there's two

6 cases cited, one is People vs. J&F Hauling, Inc.

7 That case I don't know how long it went or anything

8 like that.

Q. Your experience, you have submitted a

10 request for attorneys fees which has been denied,

11 isn't that correct, prior to the Skokie Valley case?

A. I did present in a written closing

13 argument a request for attorneys' fees and costs,

14 yes.

Q. And that was refused; is that correct?

A. I don't know that refused is the right

17 word. The Judge ruled that each party would be

18 responsible for their own costs and fees.

Q. So your petition was denied?

MR. PARTEE: No, he said there was no

petition. You are misstating his testimony.

22 BY MR. JAWGIEL:

Q. Well, your request for attorneys' fees

24 was denied?

L.A. REPORTING (312) 419-9292

138

A. You can say that, yes.

Q. Now, you indicated that Mr. Murphy was

3 put on this case a little bit before Mr. Sternstein

4 was removed; is that correct?

A. Yes.

Q. Now, Mr. Sternstein was the attorney

7 that you were referring to before, that was your

8 trial partner that was removed from this case?

A. Yes.

Q. Now, when we look at your affidavit,

11 what if anything did the removal of Mr. Sternstein

12 require you to do specifically in order to make up

13 for his removal from the case?

A. In terms of trial preparation?

Q. What do you associate that you had to

16 do specifically because Mr. Sternstein was removed

17 from the case that you otherwise wouldn't have had

18 to do if anything that's in your attachment to

19 Exhibit A to exhibit for the fee petition?

A. Well, I know part of what I had to do

21 was work with Mr. Murphy bringing him up to speed

22 for the trial of the case.

Q. So you're working with Mr. Murphy was

24 brought about because Mr. Sternstein was removed

L.A. REPORTING (312) 419-9292

139

1 from the case because the Board found his

2 involvement in the case to be inappropriate; is that

3 a correct characterization?

MR. PARTEE: I would object to the

characterization, and I would object that

that was just asked and answered.

HEARING OFFICER WEBB: Would you

rephrase the question?

9 BY MR. JAWGIEL:

Q. Sure. You had to work with Mr. Murphy

11 on this case because Mr. Sternstein was removed from

12 the case on account of the Board finding his

13 involvement, Mr. Sternstein's involvement in this

14 case to be inappropriate; is that correct?

A. No.

Q. Was Mr. Murphy put on this case before

17 Mr. Sternstein was removed from the case?

A. Yes.

Q. So Mr. Murphy was going to be put on

20 the case regardless of whether Mr. Sternstein was

21 going to be removed?

A. I think so. I don't remember exactly,

23 but I think so.

Q. So Mr. Murphy was put on the case

L.A. REPORTING (312) 419-9292

140

1 because of a decision by whom?

A. I'm not a hundred percent.

MR. PARTEE: Objection, relevance.

HEARING OFFICER WEBB: I'll allow it.

A. I'm not sure whose decision it was.

6 BY MR. JAWGIEL:

Q. Was it your understanding Mr. Murphy

8 was put on the case because you did not have enough

9 experience in this area of the law?

A. I don't remember why that decision was

11 made when it was made.

Q. Okay. But Mr. Murphy was put on, and

13 I believe it was October 3, 2003; is that correct?

A. I don't know the exact date. I do

15 know it was before Mr. Sternstein was ruled in

16 eligible.

Q. Okay. When you worked from home,

18 Mr. Cohen, did you my write a notation in your

19 billing "Home"?

A. Sometimes.

Q. Why wouldn't you do it all the time?

A. I don't know.

Q. Is it because you didn't accurately

24 keep your bills?

L.A. REPORTING (312) 419-9292

141

MR. PARTEE: Objection, argumentative.

HEARING OFFICER WEBB: I'll allow it.

A. I don't know about bills, but I really

4 don't know. I don't know that I didn't do it all

5 the time, but I'm not a hundred percent sure that I

6 noted that I worked at home all the time.

7 BY MR. JAWGIEL:

Q. When you worked on a Saturday or

9 Sunday, would you put the date that would land on

10 the Saturday or Sunday for the time entry?

A. Yes.

Q. And you did that all the time as well?

A. Well, I would put it on the calendar,

14 the date I did the work, even if I, for example, the

15 days of the hearing I did not go back to the office

16 and put the time in that day, but when I did get

17 back to the office, I put the hours worked on that

18 date on the calendar.

Q. Now, we have People's Exhibit 102, do

20 you have that in front of you?

A. Yes.

Q. I want to refer you to what I've

23 marked as page 7, which is the travel voucher.

24 Mr. Partee went through it, page 1, page 2, page 3.

L.A. REPORTING (312) 419-9292

142

1 I don't know if you took the opportunity to mark

2 your pages, but page 5 is the travel voucher.

A. I have it.

Q. Now, you left your home on October 29,

5 at 6:00 a.m. according to the travel voucher; is

6 that right?

A. Yes.

Q. And you wrote down here it took you

9 approximately two hours and 15 minutes to get to

10 your destination on that day; is that right?

A. Yes.

Q. Do you know what route you took?

A. I do not recall.

Q. And your residence at that time was on

15 the north side of Chicago; is that right?

A. It was in the area of Irving Park and

17 Lake Shore Drive. I am not sure I'd say that's the

18 north side.

Q. You don't remember what the traffic

20 was like that day; is that correct?

A. I don't remember specifically, no.

Q. And you signed this document, it's

23 your signature that's down here?

A. Yes.

L.A. REPORTING (312) 419-9292

143

Q. Now, part of what you billed for the

2 day before on the 28th was a parking expense; is

3 that right?

A. Yes.

Q. And that attachment is Exhibit No. 8,

6 is that right, page 8 I'm sorry. Not Exhibit No. 8.

A. Page 8 of People's Exhibit 102.

Q. Of People's Exhibit 102.

A. Yes.

Q. Now, this is a copy of the actual

11 receipt you received from the parking garage; is

12 that right?

A. Yes.

Q. And it indicates that the time that

15 you came into the parking garage was 7:29?

A. Yes.

Q. Is that right? And that would have

18 been in the morning?

A. Yes.

Q. And on October 28, 2003, the time that

21 you left would have been 18:26 hours, which would

22 have been about 6:28; is that right?

A. Yes.

Q. And it also indicates that the amount

L.A. REPORTING (312) 419-9292

144

1 of time parking was 10 hours and 59 minutes?

A. Yes.

Q. Now, if we look at your affidavit for

4 that day, which would be October 28, 2003, we'll see

5 that you have "Pretrial prep, pretrial prep, trial

6 prep, 12 hours"?

A. Yes.

Q. How much time does it take you to get

9 from the Lake and Wells garage to the office

10 literally walking, going up to the elevator to the

11 office?

A. Five minutes.

Q. And how long would it take you to come

14 back down from the office and go to the parking

15 garage?

A. Five minutes approximately.

Q. Did you eat lunch that day?

A. I probably ate lunch that day, yes.

Q. Did you go get food or did you bring

20 it with you?

A. I don't remember.

Q. Typically would you go get food or

23 you'd go downstairs and get something and bring it

24 up, is that typically what you did?

L.A. REPORTING (312) 419-9292

145

A. If I didn't bring lunch, yes.

Q. How long would that take you?

A. Ten, fifteen minutes.

Q. Did you go to the bathroom that day?

A. Possibly.

Q. And so when we look at the time entry,

7 we see that you actually billed more hours than your

8 car was present?

A. Yes.

Q. And you drove down for your

11 convenience because you wanted to take the file to

12 Libertyville; is that right?

A. I drove that day so I could bring the

14 files to the hearing, yes.

Q. So at some point in time you had to

16 actually take the time to put the file together.

17 How many times did you have to go to the car to put

18 the file in the car?

A. I don't remember if I did it or

20 someone in our office did it.

Q. Okay. The hearing in this matter

22 concluded on October 31st at about 3:30; is that

23 right?

A. I think that's right.

L.A. REPORTING (312) 419-9292

146

Q. There was also a lunch break that day?

A. Yes.

Q. And we started about 9:00 o'clock; is

4 that right?

A. Yes.

Q. And you drove home from the hearing?

A. Yes.

Q. Now, when you drove home, did you

9 deduct the amount of time it would take you to get

10 from the office home from the time that you took to

11 get from Liberty to home?

A. No.

Q. You billed the full time it would take

14 you to get home; is that right?

A. I billed the full time that I worked

16 on the Skokie Valley Asphalt case that day and the

17 travel time.

Q. And that would include the amount of

19 time it took you to go from the hearing to drive

20 home?

A. Yes.

Q. You had difficulty preparing the

23 closing argument in this case because you had

24 difficulty comprehending the technical aspects of

L.A. REPORTING (312) 419-9292

147

1 this case; is that correct?

A. I don't think I can necessarily say

3 that.

Q. So you didn't have any difficulty with

5 the actual technical elements of this case; you had

6 difficulty because of why? Difficulty in preparing

7 the closing argument?

Q. Yes.

A. Well, in preparing the closing

10 argument I had to review two days worth of

11 transcript. I try to cite the transcript accurately

12 when I'm writing facts on the case. There was also

13 approximately 50 exhibits. Some of those exhibits

14 were very large. One of those exhibits was very

15 technical. The engineers's report by Mr. Huff, that

16 Exhibit I did have difficulty with. I footnoted a

17 lot of information in the closing argument. So all

18 those things combined make putting together a

19 written closing argument very difficult for me.

Q. And you typed this closing argument as

21 well?

A. Yes.

Q. You also would keep your time for

24 redrafting the closing argument; is that right?

L.A. REPORTING (312) 419-9292

148

A. I'm not sure what you mean by

2 redrafting. If I was editing as I did throughout, I

3 would include that time.

Q. So if you drafted a paragraph that you

5 thought needed to be edited, it either made more

6 sense or because you wanted to maybe change the text

7 or you didn't like the structure of a sentence, you

8 would add that to your time in preparing the closing

9 argument; is that correct?

A. Yes, yes.

Q. And that would also include redrafting

12 the closing argument; is that right?

MR. PARTEE: Objection, asked and

answered.

HEARING OFFICER WEBB: Sustained.

MR. JAWGIEL: Well, on page 95, your

answer to the question on page 95, on line

13.

MR. PARTEE: Objection, this is not --

MR. JAWGIEL: Page 15 does not.

MR. PARTEE: Objection, this is not a

proper impeachment.

23 BY MR. JAWGIEL:

Q. (Reading:)"Did you bill for your time

L.A. REPORTING (312) 419-9292

149

1 you spent redrafting and editing your closing

2 argument? Answer, yes."

MR. PARTEE: I would instruct the

witness not to answer that because it's not a

proper impeachment at all.

MR. JAWGIEL: I think it is proper

impeachment. He gives an answer in his

deposition saying that he spent time and kept

his time for the amount of time he spent

redrafting, and he edited his closing

argument and now he is saying I don't know

what you mean by redrafting. I think that's

impeachable. Clearly he understood in this

question what we asked him about drafting.

MR. PARTEE: That is argument, not

impeachment. If we are going to read

deposition transcripts --

HEARING OFFICER WEBB: I agree. Move

on, please.

20 BY MR. JAWGIEL:

Q. Did you give that statement in your

22 deposition?

MR. PARTEE: Objection, don't answer

it.

L.A. REPORTING (312) 419-9292

150

HEARING OFFICER WEBB: I sustain his

objection.

3 BY MR. JAWGIEL:

Q. You would admit that there's no way we

5 can figure out from your time entries how much time

6 you spent editing as opposed to drafting the closing

7 argument or rebuttal; is that correct?

A. Correct.

Q. You also kept your time for the amount

10 of time you spent discussing this matter with

11 Mr. Partee, is that right, or is that inaccurate?

MR. PARTEE: Where are you?

MR. JAWGIEL: What do you mean. Where

am I?

MR. PARTEE: What exhibit are you on?

MR. JAWGIEL: I'm not on any Exhibit.

MR. PARTEE: What's the relevance to

the time he spent talking to me about these

proceedings. I object on relevance grounds.

MR. JAWGIEL: All I asked him was did

you keep your time and record your time for

the amount of time.

MR. PARTEE: Ask.

HEARING OFFICER WEBB: Did he ask his

L.A. REPORTING (312) 419-9292

151

time?

MR. JAWGIEL: I did. He put it in his

affidavit.

HEARING OFFICER WEBB: Well, I'll

allow that.

A. Well, I'm reviewing the time sheets

7 attached to the affidavit. This time sheet only

8 goes through September 15, 2004. There is no

9 reference in here that I see about any discussions I

10 had with Mr. Partee about the Skokie Valley Asphalt

11 case.

12 BY MR. JAWGIEL:

Q. On April 20, 2005. But I did for

14 discussion with Mr. Partee, although I don't see it

15 on here.

MR. PARTEE: It's not on the fee

petition.

MR. JAWGIEL: I'll withdraw that

question.

HEARING OFFICER WEBB: Thank you.

Question withdrawn.

22 BY MR. JAWGIEL:

Q. Let me ask you a question. On October

24 16, 2003, if you could look at your entry there?

L.A. REPORTING (312) 419-9292

152

A. I see it.

Q. It says trial prep. I take it review

3 Board order, met with RMC, who I'm sorry I don't

4 know who that is. Murphy and Sternstein. Do you

5 see that entry?

A. Yes.

Q. In the meeting that you had was RMC

8 Murphy and Mr. Murphy Sternstein present throughout

9 the meeting?

A. I don't recall if they were all

11 present throughout the meeting.

Q. Do you know how long that meeting

13 went?

A. No, I don't.

Q. Do you know how long it took you to

16 review the Board's order?

A. No, I don't.

Q. And do you know how much time you

19 spent on trial prep?

A. No, I don't.

Q. With respect to any of the bills where

22 you had multiple things that you did time entries,

23 where you have multiple tasks that you performed,

24 there's no way you can tell us specifically how much

L.A. REPORTING (312) 419-9292

153

1 time you spent on any given task that's listed

2 there; is that correct?

A. Not at this time, no.

Q. And that holds true throughout the

5 entire attachment to the affidavit?

A. Correct.

Q. Now, on October 17, 2004, you have

8 that entry in front of you?

A. No, I don't.

MR. PARTEE: I would object on

relevance grounds. There is no entry. This

only goes through September 15, 2004. This

is what was filed with the Board, and this is

what the Board granted the hearing on through

September 15, 2004.

HEARING OFFICER WEBB: If it's not

part of the fee petition --

MR. JAWGIEL: Fair enough. I'll

withdraw the question.

20 BY MR. JAWGIEL:

Q. Did you keep your time for reviewing

22 documents that Mr. Murphy might have drafted?

A. If it was -- well, I certainly

24 reviewed what Mr. Murphy did in relation to the

L.A. REPORTING (312) 419-9292

154

1 closing argument and the closing rebuttal argument

2 and that time would be included in my time sheets.

Q. You didn't break that out?

A. I did not break that out.

Q. And did you sign documents that

6 Mr. Murphy might have drafted?

A. I cannot think of any, but it's

8 possible.

Q. And did Mr. Murphy sign documents that

10 you prepared in the context of this case? I don't

11 care about anything else.

A. It's possible. I don't recall.

Q. Did you sign any documents that

14 Mr. Sternstein --

A. It is possible.

Q. So if we look back at the document

17 that you signed, it doesn't necessarily mean that

18 you were the one who drafted it?

A. It's possible.

MR. PARTEE: Do you have, if you have

in specific documents you are concerned

about, I would --

MR. JAWGIEL: Is this an objection?

MR. PARTEE: It's a suggestion.

L.A. REPORTING (312) 419-9292

155

MR. JAWGIEL: I didn't know we were

having suggestions.

HEARING OFFICER WEBB: No, it didn't

sound like an objection.

MR. PARTEE: No, it's not.

MR. JAWGIEL: I ask that the hearing

officer admonish the Attorney General to

refrain from making commentary suggestions or

anything other than legal objection during

the course of the hearing.

HEARING OFFICER WEBB: Let's just

proceed.

13 BY MR. JAWGIEL:

Q. Do you have any recollection of what

15 section of the rebuttal Mr. Murphy worked on as

16 opposed to what you worked on?

A. No.

Q. Do you have any recollection of what

19 part of the closing argument Mr. Murphy worked on as

20 opposed to what you worked on?

A. Not a specific recollection, no.

Q. Now, you indicated that the Attorney

23 General's office didn't charge for postage. Is it

24 your understanding that that's something that could

L.A. REPORTING (312) 419-9292

156

1 be charged in a fee petition, postage?

A. Not in a fee petition, but in a cost

3 petition, yes.

Q. In a cost petition, postage?

A. Yes.

Q. That's not considered overhead from

7 your understanding?

A. I guess I'm drawing on my experience

9 when I was in private practice, and we billed

10 clients for postage related to their matters.

Q. Did you ever get attorneys' fees from

12 an opposing party in your private practice?

MR. PARTEE: Objection, relevance. If

we are going to open this up to --

MR. JAWGIEL: He brought it up. He

opened the door.

HEARING OFFICER WEBB: I'd like --

what was the exact question?

19 BY MR. JAWGIEL:

Q. Did you ever receive attorneys' fees

21 from the postage in private practice?

HEARING OFFICER WEBB: The opposing --

MR. PARTEE: I don't understand that

question.

L.A. REPORTING (312) 419-9292

157

HEARING OFFICER WEBB: I think we are

getting -- I'm going to sustain the

objection. I'd like to get back to relevant

testimony.

5 BY MR. JAWGIEL:

Q. What was your salary that you earned

7 in 2003?

MR. PARTEE: Objection, relevance and

privilege grounds, and I instruct the witness

not to the answer that.

MR. JAWGIEL: That's public record.

MR. PARTEE: No, it's not. No, it's

not.

HEARING OFFICER WEBB: I'm going to

sustain the objection.

MR. JAWGIEL: Well, we have an opinion

from our expert that he should be paid by the

amount of monthly salary that he has. It is

part of the report. They did not move to

strike it, and it is part of the report, and

they should not get a windfall with respect

to attorneys' fees in this case, that they

should only be paid, if anything, for

reimbursement of time that they actually put

L.A. REPORTING (312) 419-9292

158

out to their attorneys, which would be the

salaries of the people involved in this case.

MR. PARTEE: Well, first of all, that

misstates her opinion, and second of all,

that doesn't respond to my objection, which

it is privileged material. It is not a

matter of public record. The Attorney

General's salary is a matter of record. Her

assistants' salaries are not.

MR. JAWGIEL: How is it privileged?

Under what theory of law?

MR. PARTEE: It is not a law.

MR. JAWGIEL: My birthday is a

private, personal issue. It's not something

that I can refrain from in cross-examination.

MR. PARTEE: Respectfully, I think

there is a difference in birth dates and

salaries.

HEARING OFFICER WEBB: Now that I

think about it, I think a citizen can request

that through a Freedom of Information Act.

MR. PARTEE: I don't think that's

correct.

MR. JAWGIEL: Well, this hearing

L.A. REPORTING (312) 419-9292

159

transcript is going to the Pollution Control

Board. There's no reason why in the confines

of this hearing he cannot tell us his salary

during the relevant period of time. I'm not

asking his current salary. I don't really

care about the current salary.

MR. PARTEE: I think if counsel wants

to argue that the Attorney General should be

only awarded an assistant's take home pay, he

can make that argument. But he doesn't need

to know actually what that pay is. We

strenuously object to that, and I'm fairly

confident, although we obviously haven't

researched it, but that information would not

be subject to an FOIA request.

HEARING OFFICER WEBB: I'm pretty sure

it is. So I am going to allow you to, as of

the relevant time period, I'll allow you to

state what your salary was.

A. Well, before I do that, I'll have to

21 make my own objection that it is irrelevant to the

22 issues before this hearing Board on the

23 reasonableness of the fees, because if you look

24 through the whole line of cases before the Pollution

L.A. REPORTING (312) 419-9292

160

1 Control Board, it has nothing to do with anyone's

2 take home pay. Nevertheless, if you instruct me to

3 answer, I'll do the best that I can.

MR. JAWGIEL: The bottom line, he is a

witness in this case. He doesn't have

standing to bring an objection. Certainly he

had a motion to limine if they thought this

was going to be an issue, by which they did

not. They sat on their hands. They were

well aware of my expert which is in her

report regarding this issue. So they knew it

was something that would be presented or at

least buttressed at the hearing. And it's

relevant to my expert's opinion, and you can

get it from an FOIA request, which means it's

available to the public.

MR. PARTEE: I don't know that we are

going to be able to determine definitively

that it's subject to an FOIA. I am not

comfortable representing that it is subject

to FOIA. I have the utmost respect for your

ruling, but my suggestion to the witness is

that if you are uncomfortable making this a

matter of record, that you not answer the

L.A. REPORTING (312) 419-9292

161

question and we simply will take the risk

that he not answer that question.

HEARING OFFICER WEBB: I clearly don't

have the authority to do that.

MR. JAWGIEL: Well, I ask that there

should be sanctions for his refusal to answer

the question on the stand. That's relevant

to the issues in the case which they had

notice of and this petition should then be

struck and dismissed.

MR. PARTEE: I would also point out

that they requested this information during

discovery. We objected and the Board

sustained our objection on this information

which was specifically requested during

discovery. I have the requests with me. We

objected timely, and the Board sustained our

objection, and they didn't obtain it during

discovery. Now he is asking the witness on

the stand for the same information, and I

think for the same reason that we object.

HEARING OFFICER WEBB: Well, I wasn't

aware the Board had already sustained this.

MR. JAWGIEL: Go ahead, provide us

L.A. REPORTING (312) 419-9292

162

with the order. I mean, if there's an order.

HEARING OFFICER WEBB: Well, I would

propose that we have a five minute break.

I'd like to call upstairs and see about the

possibility of continuing this hearing since

it's 4 o'clock, and we're obviously not going

to be done in an hour.

MR. PARTEE: Let's go off the record.

MR. JAWGIEL: Why don't you go ahead

do that, let Mr. Partee look for his order.

We can come back in five minutes and decide

what we are going to do. Let's at least go

off the record now.

(Short recess taken.)

HEARING OFFICER WEBB: I think we have

made arrangements to stay later this evening.

MR. JAWGIEL: We can nip this in the

bud if the State will stipulate to her

report. I think that's about the extent I'm

going to ask her.

MR. PARTEE: Just the admission of the

report?

HEARING OFFICER WEBB: I don't know

what are you --

L.A. REPORTING (312) 419-9292

163

MR. JAWGIEL: Unless there is an

objection to her qualifications, the

stipulation of her qualifications and her

report into evidence.

HEARING OFFICER WEBB: Just a minute.

Can we go off the record for a moment?

(Discussion had off the

record.)

HEARING OFFICER WEBB: All right. We

can go back on the record.

MR. JAWGIEL: Mr. Partee just informed

me that he does challenge Ms. Stonich's

expertise in this case. But what I'm trying

to offer, which I think was discussed earlier

in the break, is having an opportunity to

review my examination of her and my

examination of her basically is confined to

the context of her report, which I think is

very thorough in this matter, and I can

stipulate instead of calling Ms. Stonich, the

submission of her report into evidence.

MR. PARTEE: We would stipulate to the

admission of the report if we could see it.

I am not sure which version. Providing I am

L.A. REPORTING (312) 419-9292

164

not waiving my objection and argument as to

her qualifications, just we can admit this

into evidence.

HEARING OFFICER WEBB: Sure, you can

make a standing objection.

MR. JAWGIEL: He can make a standing

objection. He is certainly given the

opportunity to from closing argument

regarding qualifications or anything else in

the report that he wants to bring up. I have

no problem with him doing that. In an

attempt to move this along, this would just

leave us very little for me with Mr. Cohen

left and then Mr. Murphy.

HEARING OFFICER WEBB: Thank you. I

would like to thank you for not going through

every single line item of Mr. Cohen's report,

and I appreciate that stipulation as to our

third witness. Thank you for your efforts to

move thing along, and I certainly would like

to thank our court reporter for making

accommodations to help us out.

MR. JAWGIEL: Excuse me. On the

stipulation, would that be waiving his

L.A. REPORTING (312) 419-9292

165

ability to cross-examine the witness?

MR. PARTEE: That's not an

expectation, otherwise we wouldn't be able to

challenge her report.

HEARING OFFICER WEBB: I thought you

were going to do that in your --

MR. PARTEE: We have an issue with the

Excel spreadsheet and I can explain it to you

if you'd like. Not with the report, no, but

with respect to the table that's attached to

it.

MR. JAWGIEL: That is part of her

report.

MR. PARTEE: For the record, what was

handed to me was a copy of a document that's

entitled "Review and Analysis of Illinois

Office of Attorney General Bills" and the

case caption is underneath that. Basically

what it is ten pages worth of text and then

there's an eight-page table attached to that

called Mitchell L. Cohen billing and we can

stipulate to admission of the report, but we

would object to admission of this table and

I'll explain why. Mr. Cohen's deposition in

L.A. REPORTING (312) 419-9292

166

this case was taken on November 14, which was

the day before Ms. Stonich's deposition and

during Mr. Cohen's deposition Mr. Jawgiel had

this table that's attached to the expert's

report in front of him, and I asked for a

copy of it and he said -- he refused to

disclose it saying this is our own, this is

my own internal spreadsheet, which of course

is attorney-client privilege.

MR. JAWGIEL: First of all,

attorney-client privilege wouldn't be

attached to an expert.

HEARING OFFICER WEBB: The question

is, did he have a copy of the table?

MR. JAWGIEL: He got the report. We

gave him the report at the deposition of

Mr. Cohen. He got everything that we had at

that time.

MR. PARTEE: No, that's not correct.

MR. JAWGIEL: That is correct.

MR. PARTEE: We specifically asked for

this table which was Mr. Jawgiel, which he

was literally holding. He refused to give it

to us, to me.

L.A. REPORTING (312) 419-9292

167

MR. JAWGIEL: That's not correct. If

you have the transcript, go ahead and point

where I refused to give you that.

MR. PARTEE: Sure. First of all --

MR. JAWGIEL: I didn't have that

particular table at the time of his

deposition.

MR. PARTEE: You had some other table.

MR. JAWGIEL: That was my work

product. I am not giving it to you.

MR. PARTEE: Could you give it to the

hearing officer?

MR. JAWGIEL: No, I am not giving it

to the hearing officer.

MR. PARTEE: This is the very same

table that he was holding that he refused to

give to us earlier.

MR. JAWGIEL: Obviously, we can't

reach a stipulation. Fine.

HEARING OFFICER WEBB: Well, can you

stipulate as to the report and make the table

an offer of proof?

MR. JAWGIEL: No. If we are going to

submit her report, I want it in its entirety.

L.A. REPORTING (312) 419-9292

168

I am sorry I am not going to bifurcate it.

I'll lay the foundation and get the entire

report in. That's fine.

MR. PARTEE: I'm just looking for the

record of that exchange of this table.

HEARING OFFICER WEBB: Should we

continue? Finish up with Mr. Cohen?

MR. PARTEE: Sure, we can do that.

MR. JAWGIEL: If I want to jump

through hoops, I'll be more than happy to lay

the foundation of Ms. Stonich and admit that.

HEARING OFFICER WEBB: Let's get to

Mr. Cohen and Mr. Murphy and see where we

are.

MR. JAWGIEL: I'll take as much time

as it takes.

We need a ruling on my request for

the salary.

HEARING OFFICER WEBB: For the salary

I am ruling that that is public information

and you are allowed to answer that.

MR. PARTEE: Your ruling

notwithstanding, could I get my full

objection on the record?

L.A. REPORTING (312) 419-9292

169

HEARING OFFICER WEBB: Yes, please.

MR. PARTEE: We object on relevance

grounds to Mr. Cohen's personal compensation

going on the record, and I also located

information on our prior objection to the

respondent's prior request for that same

information and how it was handled by the

Board and yourself, Ms. Webb, and I can go

through that if you'd like. There was a

question about whether or not they had

already asked for this, and the request had

been denied, and I have located that request

and how it was handled.

HEARING OFFICER WEBB: May I see it?

MR. PARTEE: Sure. The request was

actually made -- the issue was, the issue was

brought to the Board in the context of

respondent's first motion for sanctions

against the complainant, and I've got block

quotes in citations to a response to that

which --

MR. JAWGIEL: Is there an order?

MR. PARTEE: There is an order on

this.

L.A. REPORTING (312) 419-9292

170

MR. JAWGIEL: Why don't you nip this

in the bud and show the order because this is

controlling -- I appreciate the fact that we

want to go through this in a methodical

manner, but we are trying to save some time

here, so why don't we just get to the order.

HEARING OFFICER WEBB: Good idea.

MR. PARTEE: They are orders plural,

and the first order is the Board's November

17, 2005 order, which is -- Do you have it

there?

MR. PARTEE: Well, I'm sorry.

HEARING OFFICER WEBB: I was looking.

No, I'm sorry, I don't have it.

MR. PARTEE: Here is a copy. At

page 8 of the Board's November 17, 2005

order, the Board took up the Respondent's

motion to strike the People's objections to

discovery, and our objections to discovery in

that context were with respect to attorney's

take home pay as well as other issues, but

the attorney's take home pay was at issue

there, and the Board held that the

Respondent's motion to strike the People's

L.A. REPORTING (312) 419-9292

171

discovery is denied. The People are entitled

to file discovery objections under sections

101618H and 101620C of the Board's procedural

rules and raise proper objections thereunder.

And then page 9 of the same order,

the respondents had also moved to compel the

same information regarding attorneys' take

home pay, and the Board ruled that: "As to

the Respondent's motion to compel, the Board

agrees with the assertions of the People that

the respondents did not adequately respond to

the People's objection or attempt to

informally resolve the dispute before seeking

Board intervention."

HEARING OFFICER WEBB: Is the take

home pay issue referenced earlier before the

Board discussion?

MR. PARTEE: It is.

MR. JAWGIEL: Where is that reference?

MR. PARTEE: Well, she has my copy of

the order.

HEARING OFFICER WEBB: I'm sorry.

MR. PARTEE: The reference in the

Board's order is actually at page 2 of the

L.A. REPORTING (312) 419-9292

172

November 17, 2005 order, but on page 2 the

Board refers to the discovery requests

involving the Respondent's request for take

home pay among other issues. So you have to

then in turn refer to the discovery requests

which I have with me as well.

HEARING OFFICER WEBB: But it's not --

MR. PARTEE: It's not referred to

expressly.

MR. JAWGIEL: It's not expressly

referred to?

MR. PARTEE: But there were no other

issues.

MR. JAWGIEL: Why there were certainly

numerous objections, you brought a global

objection to all of our discovery if you

remember correctly. So it's unclear from

this order.

HEARING OFFICER WEBB: You are right,

it's unclear from the order so I'm going

to -- and you are right, we don't have time

to go back through and look at all the

discovery motions. I'm going to reconsider

my ruling and allow the salary contention

L.A. REPORTING (312) 419-9292

173

then or any statements regarding salary as an

offer of proof because we don't have time to

go back through the discovery.

MR. JAWGIEL: I'm sorry. I missed

that. What is the ruling of the Board at

this point?

HEARING OFFICER WEBB: That the salary

disclosure may be made as an offer of proof

but I'm not requiring Mr. Cohen to answer,

but if you do answer --

MR. JAWGIEL: Let me get this

straight. You initially said that he had to

answer. Now you are saying that he does not

have to answer?

HEARING OFFICER WEBB: Right. On the

basis of that Board order because I'm trying

to save time by going through -- by not going

through the discovery documents if the Board

has already ruled that it wasn't admissible.

MR. JAWGIEL: But the Board didn't say

that in the order.

MR. PARTEE: Well it did, but it said

so by incorporating the discovery requests

themselves.

L.A. REPORTING (312) 419-9292

174

MR. JAWGIEL: The Board did not say it

is not admissible evidence at the time of the

hearing or that it's not relevant with

respect to that particular issue. I mean, am

I reading that correctly or did I miss

something?

MR. PARTEE: Perhaps we are splitting

hairs here. The Board didn't rule that it

wasn't admissible or that it was admissible.

The Board sustained the People's objection to

disclosing it in the first place, but there

was no admissibility determined by the Board.

THE WITNESS: If I might, I think

everyone has preserved their objections.

MR. JAWGIEL: I can appreciate that

Mr. Cohen is a practicing attorney and it's

very difficult for a practicing attorney to

be involved in the case as he is, but he is a

witness in this matter and as a witness he

should not be giving commentary or bringing

objections or anything along those lines

while he is on the witness stand as he is

right now and I ask the Board -- I ask the

hearing officer to take the appropriate steps

L.A. REPORTING (312) 419-9292

175

to admonish him as a witness because he is

not an attorney who is presenting this.

Mr. Partee is the attorney who is presenting

this for the AG's office.

HEARING OFFICER WEBB: Here is my

dilemma. I do feel that normally the

information is discoverable under the FOIA

Act, however if the Board already ruled that

it's not discoverable in this case, therein

lies my dilemma.

MR. JAWGIEL: But the Board hasn't.

MR. PARTEE: I disagree.

MR. JAWGIEL: The order does not

specifically state that. It's a matter of

interpretation, and what we're doing is that

if the Board believes that it's not relevant,

they certainly can make that determination at

the time that they review this transcript and

ignore that portion of it if they believe

that Mr. Cohen's salary is not relevant. The

objection has been brought. Certainly the

initial ruling of this hearing officer was

that issue be submitted, and I don't see why

it shouldn't. They certainly can redact it

L.A. REPORTING (312) 419-9292

176

later on if they want, if they think it's of

a privileged nature, and I don't understand

why we are not allowing Mr. Cohen to just go

ahead and tell us what it is and move on.

MR. PARTEE: Well, getting back to the

inquiry on the reasonableness of the fee

petition in the six factors that the Board

set out, the fifth factor is the usual and

customary charge in the community, and I

can't think to any stretch of the imagination

that someone's take home pay would be the

usual and customary hourly rate for an

attorney in the community.

MR. JAWGIEL: I asked him for his

salary, not his take home pay.

MR. PARTEE: That's what you are

asking.

MR. JAWGIEL: I'm asking what the

Attorney General pays him as salary, take

home pay is a deduction of the various taxes

and the other, the net. I didn't ask him for

his net.

HEARING OFFICER WEBB: I understand

that. Well, why didn't you FOIA request the

L.A. REPORTING (312) 419-9292

177

information?

MR. JAWGIEL: Why didn't I what?

HEARING OFFICER WEBB: Why didn't

you -- if you want to know his salary, did

you try to --

MR. JAWGIEL: Why didn't I just ask

him at the hearing? I don't know where I get

this. Your are asking this witness any

relevant question that's out there, and it

doesn't have to be something I asked him in

discovery. Mr. Partee believes that because

I didn't ask him a question in his discovery

deposition, I'm somehow precluded from asking

that question here in the hearing and nothing

could be further from the truth.

MR. PARTEE: That's not any assertion.

I think the question was more aimed at if

this is in fact subject to an FOIA request,

did you try to use FOIA to get it.

HEARING OFFICER WEBB: You are right,

Mr. Jawgiel, you are not on trial here.

MR. JAWGIEL: I don't have to.

HEARING OFFICER WEBB: You are not on

trial here. Well, I'd like to just get past

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178

this issue. I'd like to put it to rest, and

I hate to flip flop and reverse myself, but

since we don't have a lot of time here and we

don't have a lot of time to see what the

Board did, I am going to go back and say I am

fairly certain that this is public, that any

state employees' salary is public information

if you request it. So I am going to -- and

if it turns out that the Board has already

made that determination and we don't have

time to look back at the discovery document

and compare them to the Board's order, then

you can raise that in your post-hearing

brief, and I am sure the Board will strike my

ruling, overrule me. So having said that,

let's just put this issue to bed, and I am

going to go back to my original ruling and

say that you are directed to answer that

question.

A. I don't remember exactly, and this

21 covers a long period of time. We do get some

22 incremental pay raises. I would estimate my take

23 home pay between this time was between $52,000 per

24 year and $60,000 per year.

L.A. REPORTING (312) 419-9292

179

1 BY MR. JAWGIEL:

Q. And when you use that phrase take home

3 pay, you are talking about your gross salary; is

4 that correct?

A. If I said take home pay, I misstated.

6 My salary is probably between $52,000 and $60,000

7 during this time period.

MR. JAWGIEL: Okay. Thank you, sir.

That's all I have of Mr. Cohen.

HEARING OFFICER WEBB: Any redirect?

MR. PARTEE: Just a little bit.

REDIRECT EXAMINATION

13 BY MR. PARTEE:

Q. On cross-examination Mr. Jawgiel

15 compared your affidavits as between an initial

16 affidavit that you submitted for fees and costs in

17 this case with the affidavit that accompanied your

18 fee petition.

MR. JAWGIEL: Are you referring to

Respondents Exhibits 100 and 101?

MR. PARTEE: Correct.

22 BY MR. PARTEE:

Q. When you filed the -- I don't have a

24 copy of your Respondent's exhibits in front of me.

L.A. REPORTING (312) 419-9292

180

1 I don't think extra were brought.

MR. JAWGIEL: You certainly have the

document. You filed it.

MR. PARTEE: Ms. Webb, is it okay if I

go look?

HEARING OFFICER WEBB: For the sake of

time, please let's just go ahead and look at

his.

9 BY MR. PARTEE:

Q. In what was marked as Respondent's

11 Exhibit 100 you initially submitted the State's fees

12 and costs in this case, correct?

A. Yes.

Q. And when you filed that first

15 affidavit, Respondent's Exhibit 100, did you believe

16 that it was true and correct?

A. Yes.

Q. And who assembled the costs that were

19 included in the initial affidavit?

A. I don't remember the person's name.

Q. Can you describe her function within

22 the office, her title?

A. It was a paralegal intern who was

24 working at the office.

L.A. REPORTING (312) 419-9292

181

Q. And how did she assemble those costs,

2 if you know?

A. I don't know all the details. I do

4 know that she spent a lot of time communicating with

5 the accounting department in Springfield mostly by

6 telephone, and I do remember her reporting her

7 difficulties and progress during the time she was

8 trying to collect that information.

Q. And at some point after that, did you

10 discover an error in the amount of costs?

A. I don't know that I discovered an

12 error. I was not able to find receipts for all of

13 the costs that were reflected in the costs incurred

14 by the State of Illinois.

Q. Do you know where specifically the

16 missing receipts, so to speak, what type of receipt

17 we are talking about?

A. I don't know exactly how the mistake

19 was made or where the mistake was made or if it was

20 a mistake. However, the amount of money reported

21 for depositions in Respondent's Exhibit 100, which

22 was filed with the closing rebuttal argument was

23 higher than the amount of receipts I could find when

24 I went back to add more detail to the costs incurred

L.A. REPORTING (312) 419-9292

182

1 by the State based on respondent's objection.

Q. Okay. Did you bring the error or the

3 missing receipt to the Board's attention?

A. Yes.

Q. How did you do that?

A. When I went back and tried to detail

7 the invoices, after respondents objected to the fees

8 and costs petition, the petitions that were

9 questioned in the rebuttal closing argument, I

10 filled out a new affidavit which is contained in

11 People's Exhibit 100 and in Respondent's Exhibit

12 101. I added or I put in a paragraph, paragraph

13 three, that said, "During the review of invoices I

14 discovered an error made regarding costs of

15 deposition transcripts. That error was corrected

16 and is reflected in the People of the State of

17 Illinois attorneys' fees and costs petition. This

18 affidavit in the attached list of costs and that I

19 reduced the number by the amount that I did not have

20 receipts for."

Q. Did you resolve the error in

22 respondent's favor?

A. Yes.

Q. Counsel asked you a number of

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183

1 questions about -- counsel for Skokie Valley asked a

2 you a number of questions about the difficulty of

3 some of the legal issues in the underlying case, and

4 I believe he asked you about, for example, the

5 chronology of some of the violations. Did

6 respondents admit to any of the violations alleged

7 in the complaint?

MR. JAWGIEL: I'm going to object to

the relevance. First of all, we are not

obligated to admit to anything. It is the

burden of the State to prove their case.

There is no burden on to us admit to any

allegations.

HEARING OFFICER WEBB: I'm not sure I

see the relevance myself. Where are you

going?

MR. PARTEE: Well, the relevance and

where I'm going with this is simply that it

wasn't that any respondent admitted to any

violations, these were contested.

HEARING OFFICER WEBB: I will allow

it.

23 BY MR. PARTEE:

Q. Did the respondents admit to any of

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184

1 the alleged violations in the complaint?

MR. JAWGIEL: Again, I am going to

renew my objection because he restated the

question.

A. It's difficult to answer that question

6 with a yes or no because I would characterize some

7 of the evidence that was introduced at the hearing

8 as admissions.

Q. My question is only with respect to

10 their own answer to the latest version of the

11 complaint.

MR. JAWGIEL: I'm going to object. He

answered the question the way we did, he

would characterize some of our statements at

the hearing as an admission.

MR. PARTEE: I will move on.

HEARING OFFICER WEBB: He agreed to

move on.

19 BY MR. PARTEE:

Q. Mitch, you were asked some questions

21 about did you type pleadings or did you draft them

22 while sitting at your computer?

MR. JAWGIEL: I'm going to object the

question has been asked and answered.

L.A. REPORTING (312) 419-9292

185

MR. PARTEE: Not by the State.

MR. JAWGIEL: And the form of the

question. It doesn't matter who asked the

question.

MR. PARTEE: The objection for asked

and answered is when the same side asks

essentially the same question.

HEARING OFFICER WEBB: I will allow

the question.

THE WITNESS: Could you repeat the

question?

12 BY MR. PARTEE:

Q. Sure. Let me back up. You were asked

14 questions about whether you typed documents in this

15 case and then charged typing time. Were you a

16 typist in this case or did you draft documents while

17 sitting at your computer?

MR. JAWGIEL: I'm going to object to

the characterization of what was asked of him

in his cross-examination as being inaccurate.

HEARING OFFICER WEBB: Overruled.

A. I did not ever just type. I did my

23 drafting, my thinking, my editing, my revising, all

24 at the same time at my computer at my desk.

L.A. REPORTING (312) 419-9292

186

2 BY MR. PARTEE:

Q. Counsel asked you about a number of

4 time entries that are the subject of the State's fee

5 petition, and as an example in referring to

6 People's 100, counsel asked you about your July

7 19 -- I'm sorry -- your June 19 -- yes, your June

8 19, 2002 entry which is "file review".

A. Yes.

Q. And correct me if I'm wrong, but I

11 believe you said you don't recall what you did in

12 terms of file review at this point but that you

13 reviewed the file?

A. Correct.

Q. Would it have been practical for you

16 to write down every document that you reviewed

17 during file review on June 19th?

MR. JAWGIEL: I'm going to object to

the form of the question, if it's practical.

I don't know if that's the standard of what's

reasonable in a description, if it's

practical or not.

HEARING OFFICER WEBB: I'll allow it.

A. No.

L.A. REPORTING (312) 419-9292

187

2 BY MR. PARTEE:

Q. If you had been asked what you did on

4 June 19, 2002, at some point in 2003, would your

5 memory have been fresher as to what you did?

MR. JAWGIEL: I'm going to object to

the relevance and the form of the question.

What's the relevance with respect to what his

memory is in 2003? It has to do what with

what we are here today. Today is the

hearing.

HEARING OFFICER WEBB: I am going to

allow it. You can open the door.

A. Certainly my memory would have been

15 better in 2003, but I doubt I would have been able

16 to specifically say which documents in the file I

17 reviewed that day anyway.

18 BY MR. PARTEE:

Q. Counsel asked you questions about your

20 October 28, 2003 time entries?

A. Yes.

Q. And counsel asked you some questions

23 about the parking receipt?

A. Yes.

L.A. REPORTING (312) 419-9292

188

Q. Related to that time entry?

A. Yes.

Q. Can you clarify the discrepancy

4 between your time entry and the hours on the parking

5 receipt?

MR. JAWGIEL: I'm going to object to

the form of the question.

HEARING OFFICER WEBB: The form?

MR. JAWGIEL: Yes.

HEARING OFFICER WEBB: Overruled.

A. The parking receipt indicates the

12 length of time that my car was parked in the lot.

13 It does not indicate the amount of time that I

14 worked on the case that day. I worked on the case

15 that day, according to my time records, 12 hours. I

16 don't know exactly what else I counted to -- I

17 forget what the difference was -- but I don't

18 remember exactly what else I did. Though it was the

19 night before or two days before trial started, so

20 reviewing documents, direct examination, exhibits,

21 anything like that at home either earlier in the

22 morning or later in the evening probably accounts

23 for that time difference.

MR. PARTEE: Thank you. I have

L.A. REPORTING (312) 419-9292

189

nothing further.

MR. JAWGIEL: Could I get recross?

HEARING OFFICER WEBB: Yes.

RECROSS-EXAMINATION

5 BY MR. JAWGIEL:

Q. Mr. Cohen, did you note in your

7 October 28, 2003 entry that you worked from home?

A. I did not.

Q. I see. And you don't have any

10 recollection that you actually did work from home on

11 that day; isn't that true?

A. I do not have a specific recollection

13 of that.

Q. The only time that you allegedly

15 brought the error of your first affidavit submitted

16 for cost was in response to the respondent's

17 objections, you actually looked back at the

18 receipts; is that correct?

MR. PARTEE: Objection, argumentative.

20 BY MR. JAWGIEL:

Q. And redrafted the fee petition?

HEARING OFFICER WEBB: I'll allow it.

A. I actually don't understand the

24 question. It sounded like two different --

L.A. REPORTING (312) 419-9292

190

1 MR. JAWGIEL:

Q. Fair enough. You signed the first

3 affidavit for cost which had the incorrect amount of

4 five thousand-some hundreds without looking at the

5 receipts; is that correct?

A. I can't say that, no.

Q. Well, if you look at the receipts,

8 which would have been the same receipts that you

9 would have had when you redrafted it, you would have

10 found the error; isn't that correct?

A. If there were no other receipts, yes.

Q. I see. So you never looked at the

13 receipts at the time that you submitted an affidavit

14 that you signed attesting to an amount of costs?

A. I don't recall whether I looked at the

16 receipts or not. The paralegal intern who had

17 essentially done the research to gather all this

18 information had compiled a table, and when I went

19 back for the fee petition and looked at the number

20 on that table, I could not find receipts that

21 matched the number that she had in the table.

Q. Which means you didn't review the

23 receipts when you initially signed the affidavit?

A. I don't remember whether I reviewed

L.A. REPORTING (312) 419-9292

191

1 those receipts or not, and I don't remember whether

2 I took the time to individually add them up or not.

Q. Did you bill time or keep time for the

4 first drafting of the affidavit?

A. For the first drafting?

Q. For the first affidavit, did you keep

7 time for that? Is that part of your closing

8 rebuttal work that you did?

A. Yes, this affidavit was part of the

10 closing rebuttal argument.

Q. So the erroneous affidavit was part of

12 the closing rebuttal argument that you put time in;

13 is that right?

A. Yes.

Q. You submitted time for?

A. Yes.

MR. JAWGIEL: That's all I have.

HEARING OFFICER WEBB: Anything

further for you?

MR. PARTEE: No, thank you.

HEARING OFFICER WEBB:

Congratulations, Mr. Cohen, you are finished.

(Short recess taken.)

HEARING OFFICER WEBB: The People may

L.A. REPORTING (312) 419-9292

192

call their second witness.

MR. PARTEE: The People call Bernard

Murphy.

BERNARD MURPHY

5 Having been first duly sworn, was examined and

6 testified as follows:

DIRECT EXAMINATION

8 BY MR. PARTEE:

Q. For the record, would you please state

10 your full name and spell your last name for us.

A. Bernard, B-E-R-N-A-R-D, Murphy,

12 M-U-R-P-H-Y.

Q. Are you familiar with a case of People

14 versus Skokie Valley, et al?

A. Yes.

Q. How are you familiar with it?

A. I was one of the attorneys that worked

18 on that case for the Attorney General's office at

19 the time that the final hearing happened and

20 immediately prior to the final hearing.

Q. Let me ask you about any difficulties

22 that you may have experienced in the underlying

23 case, and start by generally asking you whether you

24 faced any difficulty in preparing the case for

L.A. REPORTING (312) 419-9292

193

1 trial?

A. Well, there were a few difficulties as

3 I'll call them. Number one, at some point the

4 office, the Attorney General's office, the

5 environmental, specifically where I worked, became

6 aware that one of the attorneys assigned to the

7 trial team at that time might be disqualified by the

8 Board. There was a motion pending to disqualify

9 that particular individual. Another difficulty had

10 to do with how soon the hearing was in relation to

11 when I became involved in the effort. Another

12 difficulty had to do with the way the case was

13 litigated right up to the date of the hearing.

14 There may have been more difficulties the office

15 experienced after I left the office, but I wouldn't

16 know of those.

Q. You said that one of the difficulties

18 was the way in which the case was litigated right up

19 to the hearing. What did you mean by that?

A. Well, there were significant records

21 given to us, by us, I mean at that time it would

22 have been Mitch Cohen and myself, by the respondents

23 relating to significant issues within the case very

24 shortly before the hearing. Those needed to be

L.A. REPORTING (312) 419-9292

194

1 reviewed and accounted for in order to put the

2 State's case on. So that's one of the things I'm

3 referring to.

Q. Any other things?

A. There probably were some things if you

6 had anything to refresh my recollection, but that's

7 what I recall right now.

Q. Let me ask you about the degree of

9 your responsibility in the case. Can you generally

10 describe for us what you did in the underlying case?

A. I can. I was at the time the

12 Assistant Bureau Chief, so one of my functions would

13 have been to assist the trial team to prepare for

14 that hearing. I remember that -- I believe it would

15 have been Mr. Sternstein's first contested hearing

16 as an attorney, and I remember working with him on

17 developing questions and answers for his witnesses

18 and questions, other questions he may have had about

19 how to go forward with the hearing. So there was

20 that aspect of it, and then there was also at some

21 point I became a member of the trial team. I

22 believe doing part, I believe, due to

23 Mr. Sternstein's disqualification by the Board.

Q. Did you take any steps to avoid

L.A. REPORTING (312) 419-9292

195

1 duplicating Mr. Cohen's efforts in preparing the

2 case for trial?

A. Oh, absolutely. It was critical.

4 There was so little time to get ready for the

5 hearing. It was imperative that he and I not do

6 double work and still cover all the bases that need

7 to be covered.

Q. Could you tell us what steps you took

9 to avoid duplicating efforts?

MR. JAWGIEL: I am going to object to

the form generally. It's vague.

HEARING OFFICER WEBB: Would you

rephrase your questions?

14 BY MR. PARTEE:

Q. What steps did you avoid duplicating

16 efforts?

A. There would have been several steps.

18 I would have had meetings with Mr. Cohen and

19 Mr. Sternstein, Joel Sternstein to become familiar

20 with the case where they saw things headed with it,

21 what the salient issues would have been in the case

22 to kind of jump start my involvement in it and

23 shorten whatever time was required to get ready by

24 reviewing things. That would have been done.

L.A. REPORTING (312) 419-9292

196

There would have been another

2 thing that Mitch and I did on this case and would

3 have done on other cases if we did final hearings.

4 I don't recall. That we might have -- we would have

5 come up with a witness list, and we would have

6 talked about which person was going to handle what

7 witness at the hearing, and then that discussion

8 would move to what exhibits we wanted those

9 particular witnesses to get into the record, use

10 those particular witnesses to get certain exhibits

11 into the record at the hearing. There would also

12 have been discussions about cross-examination

13 assignments for the respondent's witnesses.

Q. Okay. Thank you. Let me ask you

15 about your time in bringing the underlying case to a

16 close and when did you first get involved in this

17 case approximately?

A. My recollection is from the deposition

19 you did in this case that my affidavit said October

20 3.

Q. And did you keep track of the time

22 that you spent on this case?

A. I did, but I did it in this fashion.

24 I did not do it immediately upon being assigned to

L.A. REPORTING (312) 419-9292

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1 the case. At some point Mr. Cohen and I had to

2 travel to prepare witnesses for hearing, and just

3 because of what we had to do to comply with office

4 procedures to account for our time when we were out

5 of the office traveling, I would have been tracking

6 my time for those functions, I guess, you'd call

7 them. And then at some point when it became clear

8 that we were going to be -- at some point around

9 that time I started keeping track contemporaneously

10 as they spent time on the case. I think I just said

11 that, I'm sorry, but right about the same time I

12 would have also tried to calculate the time I spent

13 historically before those travel times to prepare

14 those witnesses.

Q. Approximately how much time passed

16 between your initially spending time on this case

17 and your historically trying to recreate that time?

A. Well, I believe it would have been a

19 matter of a few weeks, I think. That's my

20 recollection of what my affidavits show. My

21 affidavits would be the one, if you joined my -- if

22 you showed me my affidavits, I can tell you

23 precisely what these days were.

Q. Do you have the exhibits in front of

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198

1 you? Let me direct your attention to what was

2 previously marked as People's Exhibit No. 100?

A. I have that in front of me.

Q. Would you take a look at this and tell

5 me whether this contains the affidavit that you just

6 mentioned?

A. It does contain an affidavit I signed

8 as Exhibit C to that Exhibit.

Q. Okay. Just so we're clear, Exhibit C

10 to the People's fee petition at People's Exhibit 100

11 is your affidavit?

A. Yes, it appears to be.

Q. Does that appear to be your signature?

A. Yes, it does.

Q. Do you see anything to indicate

16 otherwise?

A. No.

Q. And if you want to take a moment and

19 look at this and then set it aside, so you can

20 us --

MR. JAWGIEL: I have no objection to

having them in front of him. There's no

objection to Mr. Murphy having them in front

of him as long as he just references what he

L.A. REPORTING (312) 419-9292

199

is referring to so we can keep track.

A. It does refresh my recollection about

3 when I started contemporaneously tracking time and

4 also calculating the historical time I spent on it.

5 BY MR. JAWGIEL:

Q. And what was that time frame?

A. It would have been right around

8 October 29th that I began tracking my time

9 contemporaneously with spending the time on the case

10 and also trying to calculate what I did historically

11 or how much time I spent historically on the case.

Q. Did you have any other case at the

13 same time you were working on Skokie Valley?

A. I had a caseload in addition to Skokie

15 Valley at the time I was working on that case, yes.

Q. Do you recall roughly how many cases

17 you had on your caseload?

A. I do recall it would have been in the

19 neighborhood of 30 to 40 cases.

Q. And did you have any management

21 responsibilities in addition to your caseload at the

22 time you were working on Skokie Valley?

A. I did.

Q. What sort of management

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1 responsibilities?

A. Well, those management

3 responsibilities consisted of specific tasks given

4 to me by the bureau chief to assist other assistants

5 in the bureau. They would have included, those

6 management responsibilities would have included

7 filling in for the bureau chief in her absence,

8 doing the things she needed to do for the division

9 chief.

Q. Is it fair to say you were busy?

A. Yes, I was very busy at the time.

12 Yes, we had -- in fact, we had just finished a

13 trial, a different trial in September of that year I

14 believe, so I was just coming off one and then not

15 too long after that gearing up for another.

Q. And as far as your billing, in what

17 increments did you record your time -- I'm sorry to

18 use the words billing -- but as far as time keeping,

19 as far as time keeping, what increments did you keep

20 your time?

A. I kept my time or calculated my time

22 in either hour or half hour increments.

Q. And did you spend any time on this

24 case that you did not record?

L.A. REPORTING (312) 419-9292

201

A. Oh, absolutely. This is only a

2 very --

MR. JAWGIEL: I am going to object to

that. It's irrelevant. What he spent on the

case that he did not record is not part of

the petition for reasonable attorneys' fees,

but what is part of the petition is the time

that he did record and that's the only

germane issue.

MR. PARTEE: Well, it goes to

reasonableness.

HEARING OFFICER WEBB: I'll allow it.

A. This calculation of my time, let me

14 find it in Exhibit C to People's Exhibit 100, is a

15 very modest representation of the time I spent on

16 Skokie Valley. Anywhere from a half to a third of

17 the time I actually spent on this case ended up in

18 this calculation.

19 BY MR. PARTEE:

Q. As far as the time that you recorded,

21 did you work all the time that you record in this

22 case? Do you understand my question?

A. I don't. Can you rephrase it?

Q. I'll rephrase it. Did you record any

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202

1 time that you didn't actually work on the case?

A. No, all of the hours that are

3 reflected in this affidavit are hours I spent

4 working on this case. Some of the hours I spent

5 working on the case never made it to the affidavit.

Q. Thank you. And while you were working

7 or traveling on the Skokie Valley case, were you

8 prevented from working or traveling on other cases?

A. During those hours I was working on

10 the Skokie Valley case, yes, and while I was

11 traveling, yes.

Q. What rate did you bill your time in

13 the Skokie Valley case?

MR. JAWGIEL: I'm going to object to

the foundation.

MR. PARTEE: I'll rephrase because I

hate to use the word bill.

18 BY MR. JAWGIEL:

Q. But at what rate are you seeking for

20 your time in the fee petition?

MR. JAWGIEL: I am going to object.

Mr. Murphy does not have any rate on his

affidavit and he is not seeking anything in

the petition. The petition is signed by

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203

Mr. Cohen, and that's the only thing that has

a rate in it. The affidavits do not have a

rate, so therefore he is not seeking any rate

at this point. Mr. Cohen is seeking a rate

based on the petition that he filed. If you

look at this affidavit, this affidavit does

not have a rate on it, his affidavit has a

date.

MR. PARTEE: We'll move on. It's in

the fee petition.

HEARING OFFICER WEBB: Thank you.

MR. PARTEE: Would you mark this as

People's Exhibit 104, please.

(People's Exhibit

No. 104 marked.)

16 BY MR. PARTEE:

Q. You can take as much time as long as

18 you want to review it, but just look up when you are

19 ready. What is the document that's been marked as

20 People's 104?

A. It appears to be a copy of a CV I used

22 or put together or used at or around the time of the

23 Skokie Valley hearing.

Q. Is the information in there true and

L.A. REPORTING (312) 419-9292

204

1 accurate as of the time it was submitted in this

2 Skokie Valley case?

A. It appears to be, yes.

Q. Let me ask you, and in the interest of

5 time I'm not going to go through your entire CV, but

6 let me ask you, for example, about your experience

7 of the law office of J. Patrick Donovan, how long

8 were you with the law office of J. Patrick Donovan?

A. Almost five years. Well, actually,

10 yes, almost five years.

Q. And what sort of law practice did

12 Donovan have?

A. Well, the name of the firm changed a

14 number of times over the course of my association

15 with it, and that was the most recent name it had.

16 During the times that the name changed, partners

17 were leaving and different portions of work would go

18 with them, but generally speaking, I worked on tort

19 liability cases with an aviation theme to them.

20 Mr. Donovan was also at the time a hearing officer

21 with the Pollution Control Board during the time

22 when the Board contracted that work out to private

23 attorneys. Mr. Donovan --

MR. JAWGIEL: I'm going to object to

L.A. REPORTING (312) 419-9292

205

what Mr. Donovan did. That's not relevant to

the question. The question is what did

Mr. Murphy do while he was at Donovan's

office.

MR. PARTEE: No, my question is what

sort of practice the Donovan firm had,.

MR. JAWGIEL: Then I'll object to the

relevance.

HEARING OFFICER WEBB: I'll allow it,

if we could summarize a little bit.

A. I will try. I did some mechanic lien

12 work at that firm. I did some real estate work.

13 There was some environmental work there. Most of

14 the work had to do with aviation tort liability

15 cases on the defense side. There was one personal

16 injury plaintiff's case we had at the time.

17 BY MR. PARTEE:

Q. Is it fair to say you gained some

19 environmental experience at the Donovan law firm?

MR. JAWGIEL: I'm going to object to

the leading nature of the question.

HEARING OFFICER WEBB: I'm allow the

question.

A. Yes, it is fair to say that, not just

L.A. REPORTING (312) 419-9292

206

1 general experience, but Pollution Control Board

2 specifically.

3 BY MR. PARTEE:

Q. Did you bill your time while at the

5 Donovan firm?

A. I did, but not on the Pollution

7 Control Board work.

Q. You did, but you recorded some of the

9 matters that you worked on at the Donovan firm?

A. All of them.

Q. Except for the PCB case?

A. Yes.

Q. Did you receive any billing training

14 at the Donovan firm?

A. I did, yes. They trained us on how

16 the billing procedure worked in that particular

17 firm, what they expected out of the associates as

18 far as time sheets went, how to make the notations

19 that the clerk processing those time sheets would

20 recognize and so, yes, I did.

Q. Did you have any trial experience

22 before the Skokie Valley case?

A. I did.

Q. About how much trial experience did

L.A. REPORTING (312) 419-9292

207

1 you have?

A. I think it would have been four or

3 five either trials or final hearings -- well trials.

Q. Were those bench trials or jury

5 trials?

A. One jury trial. The others would be

7 bench trials.

Q. And where was that trial experience

9 gained?

A. The jury trial was with the law office

11 of J. Patrick Donovan on a wrongful death case in

12 the Cook County Circuit Court. The bench trials

13 were with the Attorney General's office before I

14 worked on the Skokie Valley case.

Q. And were the bench trials that did you

16 with the Illinois Attorney General's office, did all

17 of those involve the Environmental Protection Act?

A. Yes, they did.

MR. JAWGIEL: I'm going to object to

the form of the question.

HEARING OFFICER WEBB: I will allow

the question.

A. Yes, they did, every one.

MR. PARTEE: I have no further

L.A. REPORTING (312) 419-9292

208

questions. Thank you.

HEARING OFFICER WEBB: Mr. Jawgiel?

CROSS-EXAMINATION

4 BY MR. JAWGIEL:

Q. Mr. Murphy, the trial that you did,

6 did you second chair that trial?

A. I did.

Q. You weren't lead counsel then, is that

9 correct?

A. Sorry, I didn't hear you.

Q. You were not the lead counsel?

A. I was not the first chair on that

13 case, correct.

Q. You had time sheets that you wrote

15 notes, that you wrote when you kept your time

16 contemporaneous and historically with respect to

17 this case; is that correct?

A. I would have written them down when I

19 was calculating my time, yes, that's correct.

Q. And those sheets have since been

21 devoid; is that right?

A. I have no idea. I have not seen the

23 file since I have left the office, but I would not

24 be surprised if they were.

L.A. REPORTING (312) 419-9292

209

MR. JAWGIEL: Mr. Partee, do you have

those notes in your file?

MR. PARTEE: No, I don't.

4 BY MR. JAWGIEL:

Q. And I take it that your affidavit, the

6 statements you made in the affidavit which is

7 attached to People's Exhibit 100 and it's Exhibit C,

8 were those verbatim from your handwritten notes

9 which you did?

A. What do you mean by verbatim?

Q. Well, did you take verbatim what you

12 wrote in your handwritten notes and put it in this

13 statement that's attached to your affidavit or did

14 you change the language?

A. I may have itemized different things I

16 spent time on certain days and then summarized those

17 in these references.

Q. So when you are pointing to these

19 references, just so the record is clear, you are

20 talking about the itemization that's attached to

21 your affidavit are summaries of what might be in

22 your notes?

A. They could be. They could be. I'd

24 have to see the notes again to be sure.

L.A. REPORTING (312) 419-9292

210

Q. Now, you also indicated that the time

2 that's in this compilation attached to your

3 affidavit is somewhere between maybe a half or

4 one-third of what you billed in this case; is that

5 correct?

A. Yes, yes.

Q. So if I look at the entry for October

8 22, 2003, you would have billed five hours that day?

A. No, that's not true, that's not

10 accurate.

Q. So what we have to say is that

12 actually the time that, the extra time that you

13 spent in this case was time you spent with

14 Mr. Sternstein in preparing him for the case?

A. No.

Q. That isn't true?

A. That's not accurate.

Q. So what we are looking at here is that

19 you would have billed somewhere between 429 hours

20 and 672 hours if we take 143 hours and multiply it

21 by either two or three in a month; is that correct?

A. No, I mean, what I am saying is, I am

23 estimating the time that I left off the affidavit.

24 The time that's on the affidavit is not an estimate.

L.A. REPORTING (312) 419-9292

211

Q. What I am telling you is that you said

2 that this is one-third or one-half of the time you

3 actually spent on this file?

MR. PARTEE: I object. That's not a

question.

MR. JAWGIEL: Isn't that correct?

HEARING OFFICER WEBB: Could you

rephrase that? Could you make that question

clear?

10 BY MR. JAWGIEL:

Q. The time we see here from October 3,

12 2003 to September 16, 2004, represents approximately

13 one-half to one-third of the time you actually spent

14 on this file?

A. That's what I am saying, yes.

Q. So if we multiply 143.5 hours by let's

17 say three, I get 429 hours that you would have spent

18 in a month on this case?

MR. PARTEE: Objection, that's

argumentative.

21 BY MR. JAWGIEL:

Q. Is that correct?

HEARING OFFICER WEBB: I'll allow you

to clarify your earlier response.

L.A. REPORTING (312) 419-9292

212

A. First of all, the time I left off

2 could predate October 3, 2003.

3 BY MR. JAWGIEL:

Q. How much?

A. It's an estimate. I didn't keep track

6 of that time.

Q. How much of it then?

MR. PARTEE: Objection, asked and

answered.

A. Why is it --

HEARING OFFICER WEBB: He did answer

it.

13 BY MR. JAWGIEL:

Q. You have no idea how much time you

15 spent before October 3, 2003 on this case?

MR. PARTEE: Objection, asked and

answered.

A. I didn't see how the time I left off

19 the --

HEARING OFFICER WEBB: I'll just let

you answer it one final time, but I think we

have addressed this, but go ahead and just

give your final answer.

A. I didn't see how it was important for

L.A. REPORTING (312) 419-9292

213

1 me to calculate precisely the amount of time I was

2 leaving off the affidavit.

3 BY MR. JAWGIEL:

Q. So it has no relevance in your mind?

A. That's a little --

MR. PARTEE: I would object. That's

argumentative.

HEARING OFFICER WEBB: Sustained.

9 BY MR. JAWGIEL:

Q. So there's no way that we could tell

11 whether or not the time that you have recorded here

12 is actually more than the time you actually spent

13 from October 3, 2003 to September 16, 2004?

A. I didn't understand that question.

Q. Sure. Let me ask you this question.

16 On October 3, 2003, did you spend more than 2.5

17 hours on the Skokie Valley case?

A. I think her ruling -- did I -- it

19 doesn't, in my mind, it doesn't matter because I

20 didn't put it on the affidavit.

Q. Did you though?

A. Did I what?

Q. Did you actually spend more than 2.5

24 hours on October 2003 on the Skokie Valley case?

L.A. REPORTING (312) 419-9292

214

1 Simple question.

MR. PARTEE: Objection, asked and

answered.

HEARING OFFICER WEBB: He has answered

he didn't keep track of the time that wasn't

recorded on the affidavit.

7 BY MR. JAWGIEL:

Q. So there's no way we can tell if you

9 spent any more time on this sheet than what you have

10 written here; isn't that correct?

A. I'm not sure why you want to if you

12 are contesting --

MR. PARTEE: Let the hearing officer

rule on the objections.

HEARING OFFICER WEBB: Are you asking

a new question?

MR. JAWGIEL: Yes.

18 BY MR. JAWGIEL:

Q. My question is, there's no way any

20 reasonable person looking at what you've submitted

21 in this case can determine based on what you've

22 submitted whether or not you spent more time than

23 what is recorded in your affidavit?

HEARING OFFICER WEBB: Well, I'll

L.A. REPORTING (312) 419-9292

215

allow you to answer.

A. Yes, I could because I told you that

3 this is a modest representation of the time that I

4 spent on this case.

5 BY MR. JAWGIEL:

Q. How are they going to determine how

7 much time you spent on this case from October 3,

8 2003 to September 16, 2004?

MR. PARTEE: Objection, asked and

answered.

HEARING OFFICER WEBB: You can go

ahead and answer.

A. Number one, because I told you it's a

14 modest representation, and that's my sworn

15 testimony. And, number two, I'm not sure why it

16 would be important since you are contesting the

17 modest representation that I have got on this

18 affidavit.

19 BY MR. JAWGIEL:

Q. It goes to your credibility, sir, if

21 you want to know why. You are telling me you spent

22 429 hours in a month on this case?

A. No, I'm saying that was an estimate.

Q. That was an estimate, and this is an

L.A. REPORTING (312) 419-9292

216

1 estimate which is Exhibit 3; is that correct?

MR. PARTEE: Objection, this is

argumentative.

HEARING OFFICER WEBB: This is

argumentative. You are not asking any new

questions.

MR. JAWGIEL: This goes to

credibility.

MR. PARTEE: It's theatrics too.

10 BY MR. JAWGIEL:

Q. This is an attachment, Exhibit C, is

12 an estimate for time that you have recorded here?

A. I have already said it is not.

Q. It is not?

A. Correct.

Q. Did you type your own documents, sir?

A. During the time I was with the office

18 I typed most of my own documents, yes.

Q. Any of the documents that are recorded

20 in your affidavit from October 3, 2006 to September

21 16, 2004 documents that you did not type?

MR. PARTEE: Object to the form of the

question.

HEARING OFFICER WEBB: I will allow

L.A. REPORTING (312) 419-9292

217

it.

A. I'm not sure what specific documents

3 you are referring to.

4 BY MR. JAWGIEL:

Q. Well, you tell me what's in your

6 affidavit. You drafted it. It says "prepared draft

7 of closing statement on November 17, 2003." Any of

8 the things that indicate that you drafted anything?

A. Well --

Q. Did you type those documents?

A. I can take each one at its turn.

Q. Sure, let's do that then. October 3,

13 2003, did you draft any documents on that day?

MR. PARTEE: I would object that we

are going to go through every single document

here.

MR. JAWGIEL: He said that we have to

go through each entry. I am going to follow

his lead, if that's what he wants to do,

that's what we'll do.

HEARING OFFICER WEBB: Well, we did it

for Mr. Cohen so --

A. Well, what I said was I'd be happy to

24 talk about each specific document referenced in my

L.A. REPORTING (312) 419-9292

218

1 affidavit. There are some references here, but he

2 is referring to other entries that don't represent

3 other documents.

HEARING OFFICER WEBB: Can we limit

the answer to entries that refer to

documents?

7 BY MR. JAWGIEL:

Q. Let me do it this way. Let me suggest

9 this, if I may, Mr. Murphy what's the entry on the

10 list that you drafted a document? First entry which

11 you drafted a document?

A. On the affidavit, the affidavit lists

13 the prepared draft of closing statement.

Q. And that's November 17, 2003; is that

15 correct?

A. That's the date next to that entry,

17 yes.

Q. Is that an accurate date?

A. Yes, I believe it's an accurate date.

Q. Did you type that document?

A. I would have typed my portion of the

22 draft closing statement, yes, I would have.

Q. What portion did you do?

A. You would have to show me the closing

L.A. REPORTING (312) 419-9292

219

1 statement.

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

A. It's been three years.

Q. So as you sit here, you don't know?

MR. PARTEE: Objection, asked and

answered.

HEARING OFFICER WEBB: Sustained.

8 BY MR. JAWGIEL:

Q. On November 18, 2003, do you know what

10 portion of the draft of the closing you drafted out

11 on that day?

A. Well, I remember that when Mitch,

13 Mr. Donovan and I spoke about assignments for the

14 closing statement, I had specific areas that I took

15 as my responsibility to develop. Mr. Cohen had

16 specific areas that he took the responsibility to

17 develop. So it could be that, and I believe it is,

18 that prepared draft of closing statement. Those two

19 references on those two days refers to the same

20 portion of the draft closing statement I was

21 assigned to draft.

Q. And what portion was that?

A. I've already answered that question.

24 You'd have to show me the closing statement for me

L.A. REPORTING (312) 419-9292

220

1 to be able to tell you that might refresh my

2 recollection.

Q. What's the next document after

4 November 18, 2003 that you drafted?

MR. PARTEE: Objection on relevance

grounds, and that we don't need to go each

and every one of these.

HEARING OFFICER WEBB: I'll allow it.

There aren't many here.

A. Well, the affidavit says that on

11 4/12/2004 I reviewed and revised the report for

12 closing argument?

13 BY MR. JAWGIEL:

Q. And why was the revision necessary?

A. As I sit here today, I don't know.

Q. Okay. And did you type that

17 rescission yourself?

A. My practice was to do that.

Q. Now, with respect to the time that you

20 spent actually typing a document, did you reduce the

21 time that you spent on your entry by the amount of

22 time it took you to type?

A. Well, I would have typed directly onto

24 the screen as I was drafting the document so I mean,

L.A. REPORTING (312) 419-9292

221

1 it was a function of a couple of things, and over

2 the course of time and having to respond to these

3 things, my typing actually got fairly good. My

4 handwriting is atrocious. None of the secretaries

5 can read it without a lot of effort and a lot of

6 back and forth to see what I wrote. So it was

7 faster for me and in the end saved your clients more

8 money by me drafting it myself on the computer.

Q. Did the Attorney General's office have

10 dictation for its attorneys?

A. It had it for its supervisors.

Q. And you were a supervisor?

A. It did. I was.

Q. So you had availability for you to

15 dictate your documents and give it to your

16 secretary; is that correct?

A. Only for significant projects beyond

18 the scope of this.

Q. This is not considered a significant

20 project for the Attorney General's office?

A. It is, but when I say that beyond the

22 scope of this. I mean something that would have

23 been many more pages than what my portion of the

24 review and revised report would have been.

L.A. REPORTING (312) 419-9292

222

Q. I see. And do you talk faster than

2 you type at this time?

A. I've never timed it. I don't know.

Q. How fast did you type back in October

5 through September 2004, October 2003, April 2004?

MR. PARTEE: Objection, the relevance

grounds. He can testify that he can draft it

on the computer faster than you can write.

HEARING OFFICER WEBB: I will allow

you to answer, if you know.

A. My only sense of how fast I typed had

12 to do with typing class I took in high school and by

13 the time of my work on this Skokie Valley trial, I

14 mean, I worked at the office, the Attorney General's

15 office for almost 7 years at that point. I was a

16 much faster typer at that point then I was in my

17 typing class in high school.

Q. That's wonderful. How fast were you

19 at that period in time?

A. In high school?

Q. No, the period of time of October,

22 let's say October of 2003 through May of 2004, how

23 fast could you type?

A. I never had it measured.

L.A. REPORTING (312) 419-9292

223

Q. So you don't know?

MR. PARTEE: Objection asked and

answered.

A. I told you what my sense was based on.

HEARING OFFICER WEBB: I'll sustain

that. I think he answered that.

7 BY MR. JAWGIEL:

Q. You told me what your sense was based

9 on what you typed in high school, but you didn't

10 tell us what you typed in high school.

MR. PARTEE: That's not a question.

12 BY MR. JAWGIEL:

Q. So what was your typing speed in high

14 school?

MR. PARTEE: Objection asked and

answered.

HEARING OFFICER WEBB: I'll allow you

to answer. I don't recall what you said.

MR. PARTEE: Objection, relevance.

A. It was very long ago. I don't

21 remember. It was somewhere in the neighborhood of

22 20 words a minute to 30 words a minute. I think I

23 got a C in that class.

24 BY MR. JAWGIEL:

L.A. REPORTING (312) 419-9292

224

Q. Your preparation on April 12, 2004 you

2 have preparation of fees affidavit and statement of

3 hours, did you type that as well?

A. I don't remember.

Q. What's next document after April 12,

6 2004, if any, that you actually typed?

A. Well, the reference on the next

8 reference on the affidavit to any document being

9 drafted is on September 16, 2004.

Q. And did you type the People's fees

11 worksheet affidavit?

A. I could have typed it. I don't

13 remember.

Q. Now, you also had travel expenses that

15 you submitted; is that correct?

A. Yes.

Q. I believe we have it, if I may

18 approach the witness.

HEARING OFFICER WEBB: Please.

20 BY MR. JAWGIEL:

Q. People's Exhibit 102, and I'm going to

22 see if I could find it for you. It will be easier

23 for to you find it for you than for you to dig

24 through it?

L.A. REPORTING (312) 419-9292

225

A. By all means.

Q. I have a general sense where it pops

3 in. I'm going to show you what the travel voucher

4 is, and I believe this to be your travel voucher and

5 I'll have you identify it, this is the travel

6 voucher you submitted in the Skokie Valley case?

A. It appears to be.

Q. When you say it appears to be, is that

9 a yes or is that a no?

A. It appears to be.

THE WITNESS: Can we go off the record

for a second?

HEARING OFFICER WEBB: Okay.

(Short recess taken.)

HEARING OFFICER WEBB: We are looking

at Mr. Murphy's travel voucher, and the

parties agree that the social security number

shall be redacted.

MR. JAWGIEL: Any other document that

has a social security number of the AG's can

also be redacted out without us going into

specific stipulations.

THE WITNESS: Thank you very much. I

appreciate that.

L.A. REPORTING (312) 419-9292

226

MR. JAWGIEL: That has no relevance to

that whatsoever. Okay.

3 BY MR. JAWGIEL:

Q. Now, Mr. Murphy, it took you

5 approximately 40 minutes to travel from the office,

6 45 minutes from the office, which I believe is in

7 downtown Chicago, is that correct, to Libertyville

8 on the 29th; is that right?

A. Are you asking me if that's the

10 correct location of the office or the amount of time

11 I spent traveling?

Q. Oh, I apologize. Where is the office

13 located?

A. The office at the time was located at

15 188 West Randolph street in the downtown area of

16 Chicago.

Q. And on October 29, 2003, you left from

18 that office to go to Libertyville?

A. Yes.

Q. And it took you 45 minutes from the

21 office to get to Libertyville on that day?

A. Yes, it did.

Q. How many hearings did you have before

24 the Illinois Pollution Control Board before the

L.A. REPORTING (312) 419-9292

227

1 Skokie Valley case actually went to hearing?

A. When you say hearing, you mean a final

3 hearing?

Q. Yes, a final hearing.

A. None, this was my first.

Q. And how many Pollution Control Board

7 cases prior to Skokie Valley were you involved in

8 drafting of the closing argument?

A. Pollution Control Board cases?

Q. Yes.

A. Those are cases that went to final

12 hearing?

Q. Yes, went to final hearing, yes.

A. Just one.

Q. Prior to Skokie Valley?

A. Prior to Skokie Valley, none.

Q. And Skokie Valley is your only

18 experience in this matter?

A. I believe so.

Q. Just so we're clear, on October 29,

21 2003, that's when you started keeping

22 contemporaneous records with respect to the Skokie

23 Valley case?

A. That's when it started, yes.

L.A. REPORTING (312) 419-9292

228

Q. Now, what did you review in order to

2 historically reconstruct the entries from October 3,

3 2003 to October 29, 2003?

A. Well, it would have been the file that

5 the office had on the case. It would have been

6 documents that I drafted during that time. It would

7 have been the pleadings that your clients filed in

8 the case, anything associated with the case that was

9 either filed or part of the Attorney General's

10 office file on it.

Q. And was it your understanding that you

12 were assigned to this file on October 3, 2003

13 because Mr. Sternstein had been removed from the

14 case?

MR. PARTEE: Objection, that's been

asked and answered. We are backtracking.

MR. JAWGIEL: I never asked that

question, and since I never asked that

question, it can't be asked and answered.

HEARING OFFICER WEBB: I don't think

it was asked of this witness, I am sorry,

that I recall.

MR. JAWGIEL: No.

HEARING OFFICER WEBB: Go ahead.

L.A. REPORTING (312) 419-9292

229

A. As I sit here today, I remember now

2 that it was not, that October 3, 2003 date predated

3 Mr. Sternstein's disqualification, and at the time

4 of my deposition, I wondered if it was. I was not

5 sure. By that I mean, I wondered if that was the

6 date that Joel was disqualified.

7 BY MR. JAWGIEL:

Q. And what have you reviewed since that

9 date that let you determine when Mr. Sternstein was

10 disqualified?

A. Well, after I received a copy of my

12 deposition transcript, I had a number of questions

13 about my testimony and the accuracy of the

14 stenographer's transcript of it so I went on to the

15 PCB website and I looked at several orders and, you

16 know, the captions of things that are posted there

17 and I found an order that disclosed the date, the

18 actual date of the Board ordered that disqualified,

19 whereby the Board disqualified Mr. Sternstein.

Q. And what was the date?

A. I believe it was October 16, 2003, but

22 again, I would only be sure if you showed me a copy

23 of that order again.

Q. Let's look at your entry October 16,

L.A. REPORTING (312) 419-9292

230

1 2003, it references, "Review Board order.

2 Conference with Sternstein and Cohen." I know the

3 end is chopped off?

A. Yes, you are right.

Q. Was that the Board order that

6 disqualified Mr. Sternstein?

A. I believe it would have been, yes.

Q. And how long did it take you to review

9 that order?

A. It was not a very long order the way I

11 remember it. It was only maybe five or six pages,

12 so not very long.

Q. How long would that have been not very

14 long?

MR. PARTEE: Objection, asked and

answered.

HEARING OFFICER WEBB: Well --

MR. JAWGIEL: Not very long doesn't

give a specific amount.

HEARING OFFICER WEBB: If you know any

more specifically.

A. I can't remember specifically.

23 BY MR. JAWGIEL:

Q. Can you tell me in conference with

L.A. REPORTING (312) 419-9292

231

1 Mr. Sternstein and Mr. Cohen, were they present

2 throughout that conference with you?

A. I don't recall whether -- I don't

4 recall specifically, but I do remember Joel was very

5 concerned about making sure he complied with that

6 order.

Q. All right. Did you meet with

8 Mr. Sternstein and Mr. Cohen together on that day?

A. I don't remember.

Q. And so the work that you did prior to

11 October 16, 2003, was work that you did because you

12 were assigned to this case on account of the

13 inexperience of Mr. Cohen and Mr. Sternstein?

A. No.

Q. Then why were you assigned to their

16 case as a third attorney?

A. Because there was a motion pending to

18 disqualify Joel, Mr. Sternstein, sorry.

Q. So the work that you did between

20 October 3, 2003 and October 16, 2003, was that done

21 because there was anticipation that Mr. Sternstein

22 might be disqualified?

A. That was one of the reasons. The

24 other reason, as I mentioned, it was

L.A. REPORTING (312) 419-9292

232

1 Mr. Sternstein's first contested hearing.

Q. So you were doing all of this work in

3 anticipation Mr. Sternstein might be removed as an

4 attorney or if he was allowed to go forward and he

5 had inexperience and needed some help; is that a

6 fair characterization?

A. No, it's both.

Q. It's both, right?

A. Right.

Q. Okay, both. But none of that had to

11 do with the fact that the attorneys that were on the

12 case -- strike that.

So your involvement in the case

14 was basically because of inexperience of the

15 attorney, Mr. Sternstein, or disqualification from

16 October 3, 2003 to October 16, 2003?

MR. PARTEE: Objection, asked and

answered. I know we have covered this

already.

HEARING OFFICER WEBB: We have. This

has been asked and answered.

MR. JAWGIEL: Are you sustaining the

objection?

HEARING OFFICER WEBB: Yes.

L.A. REPORTING (312) 419-9292

233

MR. JAWGIEL: Just want to be clear.

HEARING OFFICER WEBB: Sorry.

3 BY MR. JAWGIEL:

Q. Is it your understanding that it's

5 reasonable to charge for your time because of the

6 inexperience of an attorney in the office assigned

7 to the case?

MR. PARTEE: Objection. I mean

objection relevance, and I would object to

the counsel himself moved to exclude any

opinions from this proceeding and now he,

himself, is trying to --

MR. JAWGIEL: I will withdraw the

question.

HEARING OFFICER WEBB: Thank you.

16 BY MR. JAWGIEL:

Q. Now, you have entries for trial

18 preparation October 22, 2003, going through October

19 27, 2003. Can you tell us with any specificity what

20 you reviewed on any of those days for the amount of

21 time listed?

A. What do you mean by specificity?

Q. Tell me specifically what you reviewed

24 on October 22, 2003, was it specifically the

L.A. REPORTING (312) 419-9292

234

1 pleadings? Was it specifically the transcript?

2 What was it that you actually reviewed for the

3 amount of time that you charged?

A. I can tell you what I reviewed to get

5 ready for the trial.

Q. That's not what I am asking. I want

7 to know specifically what you reviewed at any of the

8 given days from October 22, 2003 through October 27,

9 2003?

MR. PARTEE: I would object that you

are interrupting the witness.

MR. JAWGIEL: I am not asking him

generally what he reviewed. We will go at it

this way, then we will go the right way.

15 BY MR. JAWGIEL:

Q. On October 22, 2003, what did you

17 specifically review for trial preparation on that

18 day?

A. Well, at that point looking at what my

20 earlier entries are on this affidavit, I think from

21 October 22nd through October 27th what I would be

22 doing was preparing question and answers for the

23 witnesses. So I would be reviewing --

MR. JAWGIEL: I'm going to object to

L.A. REPORTING (312) 419-9292

235

this as being nonresponsive to my questions.

My question was specifically on

October 22, 2003 trial preparation, what did

you specifically do on that day?

HEARING OFFICER WEBB: Not during the

period?

MR. JAWGIEL: I changed it because he

refused to answer it in a sort of coherent

manner.

MR. PARTEE: I would object to that.

HEARING OFFICER WEBB: I will sustain

your objection as to characterization, but --

MR. JAWGIEL: Why? I am asking him

specifically.

HEARING OFFICER WEBB: Do you

understand he wants to know the day, not the

period.

18 BY MR. JAWGIEL:

Q. On October 22, 2003 what specifically

20 did you review to justify your trial preparation of

21 7.5 hours?

A. It would have been anything having to

23 do with the first witness I would have been

24 responsible for at hearing. The way that we

L.A. REPORTING (312) 419-9292

236

1 anticipated the hearing going forward.

Q. And who was it?

A. You would have to show me the

4 transcript. I could tell you then.

Q. As you sit here today, you don't know

6 other than if you look at the transcript you think?

A. If I look at the transcript, I know

8 who that witness will be.

Q. And what did you do in that

10 preparation specifically?

A. For that first witness?

Q. Yes.

A. It depended on who that witness was,

14 but I would have looked at -- if the witness was a

15 government witness, which I'm guessing it was since

16 we went first -- it would have been any document

17 that witness generated, anything having to do with

18 the interviews that witness conducted.

Q. And that happened October 22, 2003?

MR. PARTEE: Objection, you are

interrupting the witness.

HEARING OFFICER WEBB: I'll allow it.

Go ahead.

A. Can you repeat the question, again?

L.A. REPORTING (312) 419-9292

237

1 BY MR. JAWGIEL:

Q. And that would have happened

3 October 22, 2003?

A. And any other documents that was

5 submitted by your client that supported the witness

6 documenting his report.

Q. What did you do on trial preparation

8 on October 8, 2003?

A. Specifically, I can't tell you, but

10 that early in my preparation it would have been

11 more --

MR. JAWGIEL: I am going to ask and

object that the rest of the answer be

stricken. I asked him specifically what he

did on October 8, 2003. He said I can't tell

you. Anything else beyond that is beyond the

scope.

HEARING OFFICER WEBB: Okay. I'll

sustain it.

20 BY MR. JAWGIEL:

Q. On October 14, 2003, what did you

22 specifically do for trial preparing?

A. Judging from what the entries are

24 before and after it, would had to have been

L.A. REPORTING (312) 419-9292

238

1 familiarizing myself with the discovery issues that

2 existed in the case at that time.

Q. And that's because you weren't

4 familiar with the case at that time?

MR. PARTEE: Objection, argumentative

and you are mischaracterizing his earlier

testimony.

MR. JAWGIEL: I am just merely asking

him is that because you weren't familiar with

the case at that time.

HEARING OFFICER WEBB: I'll allow it.

A. Did you say unfamiliar or familiar?

13 BY MR. JAWGIEL:

Q. You were not familiar with the case at

15 that time?

A. A true statement would be I was

17 becoming familiar with the case.

Q. Okay. What did you do for trial

19 preparation on October 23, 2003?

A. Well, judging from the entries before

21 and after that particular one, I think I would have

22 been still finishing up my preparation for what we

23 believed my first witness would be and then

24 transitioning to the second.

L.A. REPORTING (312) 419-9292

239

Q. Do you have a specific recollection of

2 doing that or are you just guessing or surmising at

3 this point?

A. It's not a guess or surmise. I am

5 basing that on what I have in my affidavit and my

6 sense, you know, recollection of how I got ready for

7 these trials, which was fairly consistent over the

8 time I did them.

Q. So what you are telling us is what you

10 did as a matter of practice, not necessarily what

11 you did on those specific days; is that a correct

12 characterization?

A. It's both.

Q. When did the documents that you

15 testified earlier come in from Skokie Valley's

16 counsel?

A. Which ones?

MR. PARTEE: I would object to the

vagueness, Counsel.

HEARING OFFICER WEBB: Sustained.

21 BY MR. JAWGIEL:

Q. You stated earlier that there was a

23 bunch of documents that were submitted in the course

24 of discovery, close to the hearing that were

L.A. REPORTING (312) 419-9292

240

1 submitted by Skokie Valley's attorneys?

A. Yes.

Q. When was that?

A. It was very close to the hearing.

5 You'd have to show me the documents or some pleading

6 in relation to that, and I knew there were many

7 pleadings in relation -- there were many pretrial

8 motions right before the hearing. So one of those

9 motions could disclose when those documents were

10 delivered to our office. Those documents themselves

11 might be stamped by our office.

Q. Does your affidavit submitted here

13 refresh your recollection?

A. In what sense?

Q. When the documents came in.

A. This affidavit by itself?

Q. Yes.

A. No.

Q. Does the affidavit refresh your

20 recollection of what work you did on the documents

21 that came in?

MR. PARTEE: Objection, asked and

answered.

HEARING OFFICER WEBB: I'll allow it.

L.A. REPORTING (312) 419-9292

241

A. The affidavit by itself, no.

2 BY MR. JAWGIEL:

Q. Does the affidavit in here indicate

4 anywhere that you had to do extra work regarding the

5 documents that were submitted by Skokie for work --

A. Extra work?

Q. Extra work?

A. Extra, what do you mean by extra work?

Q. Extra work that --

A. Nothing I did was extra work on this

11 trial.

Q. Okay. Fair enough. Have you ever

13 asked for legal fees and they were denied prior to

14 the Skokie Valley case?

MR. PARTEE: If we are going to open

this up for questions for legal fees in other

cases, then I think we are going to open

this.

HEARING OFFICER WEBB: I agree. I

don't see the relevance in this line.

21 BY MR. JAWGIEL:

Q. On the entries where you have more

23 than one task noted, can you tell me with respect to

24 any of those tasks the specific amount of time it

L.A. REPORTING (312) 419-9292

242

1 took as opposed to other tasks listed in the entry?

MR. PARTEE: Objection, asked and

answered. You have gone through almost every

single task, and now you are just going back

to the general.

HEARING OFFICER WEBB: Sustained. He

said we have gone through all of these tasks.

MR. JAWGIEL: We haven't gone through

all the tasks.

HEARING OFFICER WEBB: You asked

specifically what he did on specific days.

MR. JAWGIEL: On a few days.

Literally on a few days I asked him what he

did.

MR. JAWGIEL: All I am asking is a

general statement to move this along quickly

on any entries where there's more than one

task listed, for example on October 28, 2003,

pretrial prep, conduct pretrial preparation,

can you tell me specifically how much time is

attributable to any one of those tasks as

opposed to other tasks in the line?

HEARING OFFICER WEBB: All right.

I'll allow it.

L.A. REPORTING (312) 419-9292

243

MR. PARTEE: If I could make an

objection for the record. It's simply that

we have gone through more than a couple as

counsel says in these time entries. As I

recall, we have gone through each one and

Mr. Murphy has explained whether or not he

can recall and what his recollection is as to

what he did on each day, and now counsel is

getting him to generalize all of his earlier

answers to which I think is unfair and that's

why I object on asked and answered grounds.

HEARING OFFICER WEBB: I will allow it

with a little leeway. I do feel that it's

mostly been asked and answered in terms of

specific recollections, but if we could, if

we can move through it quickly, I will allow

it.

A. Well, yes, actually there's some that

19 I can't. The ones where I've got on October 29,

20 2003, October 30, 2003, and October 31, 2003, it

21 might be a simple matter to just look at my travel

22 statements to see how long I was traveling and then

23 the rest of the time would be allocated to the other

24 entries.

L.A. REPORTING (312) 419-9292

244

1 BY MR. JAWGIEL:

Q. And then with respect to any entry

3 other than travel time, could you tell us in cites

4 where there's more than one task on days where

5 there's more than one task listed?

A. Well, see --

MR. PARTEE: And I would object on

asked and answered grounds again to that.

MR. JAWGIEL: I'm trying to clarify

now. He says, yes, I can with respect to

travel, that's fine. What I want to know

other than with respect to travel, can you

tell us on days where there's more than one

task, how much time is --

HEARING OFFICER WEBB: Okay, I'll

allow it.

17 BY MR. JAWGIEL:

Q. -- is spent for any one of those taxes

19 listed?

A. It's somewhat of an unartful question

21 because there's multiple tasks on any one of these

22 days that aren't represented. Taking your question

23 to mean where there were multiple tasks reflected on

24 the affidavit?

L.A. REPORTING (312) 419-9292

245

Q. No, where there are multiple tasks for

2 a specific day. For example, on 9/16/2004 compile

3 fees, worksheet affidavit, are those two separate

4 tasks?

A. You are drawing a distinction between

6 10/23/04 where I've got trial preparation, which is

7 a referenced to perhaps many different tasks on that

8 day?

Q. That's not what I am talking about.

10 Sir, maybe we are not communicating on the same

11 level, but what I am trying to say here is very

12 simply, if I look at any given day where there are

13 multiple tasks listed, not just a general trial

14 preparation or anything, you know, draft closing

15 argument, you know, prepare and draft closing

16 argument, okay, what I'm talking about is where

17 there are multiple tasks listed, for example, you

18 have entries review Board order, conference with

19 Joel Sternstein and Mr. Cohen, there's multiple

20 tasks listed there. Would you agree with that?

A. Yes.

Q. And on any of the entries for any

23 given day where there are multiple tasks, can you

24 tell me how much time is spent for one task on that

L.A. REPORTING (312) 419-9292

246

1 day as opposed to another task on that day?

A. And what I am trying to confirm is

3 when you say multiple tasks on any given day, are

4 you talking about multiple tasks on any given day

5 listed on the affidavit as opposed to any multiple

6 tasks on any given day where there's only one entry

7 for that day?

Q. I would agree with you, yes, I would

9 agree with you. I am trying to say on the affidavit

10 where you've listed multiple tasks, specifically

11 listed multiple tasks for any given day, can you

12 tell me how much time is allotted for each of those

13 tasks?

A. No, I cannot, not from the face of

15 this affidavit.

Q. Fair enough. Now, certainly when we

17 talk about more of a general category, for example,

18 prepare draft of closing statement, there were

19 multiple tasks involved in that that are not

20 reflected in the affidavit; is that a fair

21 statement?

A. I would agree with that.

Q. And the same holds true with trial

24 preparation, when we see that entry, there's

L.A. REPORTING (312) 419-9292

247

1 multiple tasks associated with trial preparation

2 that's not listed on the affidavit?

A. Absolutely.

Q. How did you and Mr. Cohen ensure that

5 you did not duplicate your work and Mr. Sternstein?

A. Which one do you want me to do first?

Q. Let's start with Mr. Cohen. How did

8 you and Mr. Cohen ensure that you did not duplicate

9 your work?

A. What we did was when it became clear

11 Mr. Sternstein was not going to be participating in

12 the trial team, that I would be doing it in his

13 place, we broke out our -- what I remember, what I

14 remember we did was broke out the list of the

15 witnesses that would testify at the hearing and then

16 assigned each person either Mitch or myself to one

17 of those witnesses, be it cross examination or

18 direct examination, and then we would have talked

19 about who was going to do the opening statement, who

20 was going to do the closing argument, how closing

21 argument would be handled, whether it be written or

22 oral. We would have talked about who was going to

23 handle which of the many pretrial motions that we

24 had to respond to immediately before the hearing.

L.A. REPORTING (312) 419-9292

248

1 We would have talked about who was going to be the

2 person, who was going to be the person, the lead

3 person --

MR. PARTEE: Can I interject which

question are we dealing with, Mr. Cohen and

Mr. Murphy right now or Mr. Sternstein?

MR. JAWGIEL: Are you asking me a

question?

MR. PARTEE: Got lost in the earlier

question. Whose time are we talking about

right now?

MR. JAWGIEL: I thought it was quite

clear because --

HEARING OFFICER WEBB: I think we are

talking about Murphy's.

MR. PARTEE: Mr. Murphy's and whose?

17 BY MR. JAWGIEL:

Q. Now, Mr. Murphy --

A. I wasn't finished.

Q. Oh, I thought you were.

A. And, please correct, me if I was

22 wrong. What I thought I did was, maybe I did not,

23 clarified that we were talking about how Mr. Cohen

24 and I kept from duplicating each other's times and

L.A. REPORTING (312) 419-9292

249

1 effort and set aside for the moment depending upon

2 whether he asked me a follow-up question whether

3 Mr. Sternstein, how Mr. Sternstein did that. So

4 that question I don't understand to be asked. The

5 question I do understand to be asked is how

6 Mr. Cohen and I did that.

HEARING OFFICER WEBB: Okay, I'm

sorry, then we all misunderstood.

THE WITNESS: Perhaps it was me not

being clear.

HEARING OFFICER WEBB: All right. Go

ahead.

A. The other thing we would have done was

14 talked about pretrial motions, who was going to

15 handle the responses to those there when a number of

16 those filed before trial, who would have been the

17 lead person on behalf of the State on the telephonic

18 conference calls that we were doing with the hearing

19 officer and you, Mr. Jawgiel, and I believe, you,

20 Mr. O'Neill. Those were immediately prior to the

21 trial. I am calling it a trial. It was a final

22 hearing. So we would have been actively talking to

23 each other and breaking out those assignments that

24 way.

L.A. REPORTING (312) 419-9292

250

1 BY MR. JAWGIEL:

Q. Now, your affidavit indicates that

3 there was one conference with Mr. Cohen on October

4 16, 2003. Is that accurate with respect to the

5 conferences you had with Mr. Cohen in this case?

MR. PARTEE: Object to the form of the

question.

A. Is it accurate in what sense?

HEARING OFFICER WEBB: Overruled.

A. Is it accurate in what sense?

11 BY MR. JAWGIEL:

Q. Do you understand the question?

A. Is it the accurate day it happened?

14 Is it accurate that we had a conference? Is it

15 accurate --

MR. JAWGIEL: I've asked the hearing

officer to admonish the witness to refrain

from asking me the questions. I am not here

to answer my questions. It's not a

conversation.

HEARING OFFICER WEBB: I think it's a

simple question for clarification.

MR. JAWGIEL: If he can simply say I

don't understand the question, that's fine.

L.A. REPORTING (312) 419-9292

251

To start to ask me questions on the record

from the stand, I find to be ridiculous.

Again, I ask the hearing officer --

HEARING OFFICER WEBB: Well, my

interpretation is that --

MR. JAWGIEL: -- to admonish the

witness.

HEARING OFFICER WEBB: My

interpretation is that he didn't understand

the question. I am not going to admonish him

for that.

MR. JAWGIEL: Fair enough. He can

fairly state that.

14 BY MR. JAWGIEL:

Q. Now, Mr. Murphy, other than the

16 conference that you had with Mr. Cohen on October

17 16, 2003, which was in your affidavit, did you have

18 any other conferences with him?

MR. PARTEE: Objection, are we talking

about Cohen?

MR. JAWGIEL: Mr. Cohen. Did I just

say Mr. Cohen or am I speaking another

language?

HEARING OFFICER WEBB: I think we all

L.A. REPORTING (312) 419-9292

252

are.

A. Mr. Cohen and I would have spoken many

3 times during the time period on my affidavit.

4 BY MR. JAWGIEL:

Q. I see. Now, Mr. Murphy, you know from

6 the time that you got involved in this case on

7 October 3, 2003, that there was going be a request

8 for attorneys' fees in at least in the pleadings; is

9 that correct?

A. I knew that it was standard practice

11 for us to request it I think in every case we filed

12 under the Act. So without having a specific

13 recollection at that time of reviewing the pleading

14 to confirm it, I would have expected it would be

15 part of the case.

Q. You have no recollection even though

17 on pleading review you have no recollection that you

18 reviewed the pleadings?

A. No, no, I do have a recollection that

20 I did that.

Q. Okay. And at that time you knew that

22 there was a request for attorneys' fees; is that

23 right?

A. What I probably did was confirm that

L.A. REPORTING (312) 419-9292

253

1 it was in this case the same way it was in every

2 other.

Q. And then deciding about three weeks

4 without, almost four weeks without recording your

5 time; is that right?

A. There are good reasons for that, yes.

Q. And you also charged if you had to

8 review a document more than once; is that correct?

MR. PARTEE: I would object to use of

the term "charge." We didn't charge

anything. We recorded time.

MR. JAWGIEL: I could rephrase it.

HEARING OFFICER WEBB: Please.

14 BY MR. JAWGIEL:

Q. You would record your time even if

16 that time included reviewing a document, the same

17 document more than once; is that right?

A. I would have if it had to do with

19 dealing with different issues.

Q. Well, did you review documents more

21 than once between October 3, 2003 and October 31,

22 2003 in preparation for this hearing?

A. I am sure I did.

Q. And did you record your time for the

L.A. REPORTING (312) 419-9292

254

1 multiple reviews?

A. Not in that fashion, no.

Q. I see. So you didn't add that into

4 the time that you recorded?

A. I don't think multiple revisions

6 appear anywhere in my affidavit.

Q. Okay. So you can't tell me what

8 document you reviewed more than once during this

9 period of time; is that correct?

MR. PARTEE: Objection, asked and

answered.

A. You didn't show me anything at the

13 discovery deposition and you are not showing me

14 anything now, so there's no way I can tell.

15 BY MR. JAWGIEL:

Q. And your affidavit certainly wouldn't

17 refresh your recollection; is that correct?

MR. PARTEE: Objection, asked and

answered.

A. Of which?

21 BY MR. JAWGIEL:

Q. Of reviewing documents more than once.

HEARING OFFICER WEBB: Sustained.

It's been answered.

L.A. REPORTING (312) 419-9292

255

1 BY MR. JAWGIEL:

Q. Did it take you about 45 minutes to

3 review a Board order?

A. It depends on the order. Some of them

5 are quite lengthy.

Q. Did it take you 45 minutes to review

7 any of the Board orders that are noted in your

8 affidavit?

MR. PARTEE: Objection. We are now

going through this entire list for the second

time. This has been asked and answered, and

I would ask that hearing officer --

HEARING OFFICER WEBB: Mr. Jawgiel, we

have had a lot of discussion about specific

times for multiple tasks, dates that have

multiple tasks. In fact, I think we even

already talked about October 16th. I would

like to move on if we could.

19 BY MR. JAWGIEL:

Q. Well, Mr. Murphy, is it your practice

21 that you have to look at matters two or three times

22 before it starts to line up in your mind, how it

23 fits in, for example, reviewing the pleadings on

24 October 3rd and then again on October 7th?

L.A. REPORTING (312) 419-9292

256

A. Yes.

MR. PARTEE: I was just going to

object on asked and answered grounds again.

HEARING OFFICER WEBB: I will allow

it.

A. Yes, I did. And for many reasons, one

7 of the most important being so that we didn't have

8 to unnecessarily involve more than the attorneys

9 that were actively participating in the case. For

10 example -- and I say that Mr. Cohen was a

11 functioning attorney on the case throughout. I was

12 a functioning attorney on the case throughout -- we

13 did not have an attorney sitting with us at the

14 hearing that never asked a question or advised us on

15 what to do throughout the hearing. So Mr. Cohen and

16 I were self-sufficient in doing this hearing, and if

17 we, if I had to review a pleading more than once to

18 stay that way, I would do it. I would consider it a

19 waste to have an attorney sitting at a table not

20 doing anything at the hearing other than whispering

21 in my ear.

Q. Your ability to comprehend what you

23 read the first time would require you to review it

24 more than once, and you feel that's reasonable time

L.A. REPORTING (312) 419-9292

257

1 for to you record in a request for a fee petition?

MR. PARTEE: Objection, asked and

answered.

HEARING OFFICER WEBB: Sustained.

5 BY MR. JAWGIEL:

Q. You indicated that you had some sort

7 of training at Mr. Donovan's office regarding

8 billing. Were you provided with the ABA guidelines

9 at Mr. Donovan's office?

A. I don't recall. I could have been. I

11 don't recall.

Q. But you don't know one way or the

13 other?

MR. PARTEE: Objection, asked and

answered.

A. I don't remember.

HEARING OFFICER WEBB: Sustained.

18 BY MR. JAWGIEL:

Q. Are you familiar with the ABA billing

20 codes as you sit here today?

A. I am not.

Q. Are you familiar with the ABA codes

23 when you were drafting your entries on 2003 through

24 September 16, 2004?

L.A. REPORTING (312) 419-9292

258

A. I would not have been.

Q. Were you familiar with any billing

3 codes or guidelines when you were drafting your

4 entries from October 3, 2003 through September 16,

5 2004?

A. Just generally the requirements and I

7 think it's in the rules of ethics that the time, the

8 entries that you put on a billing statement be

9 factual.

Q. Based on your understanding of billing

11 practices, does your affidavit conform with that

12 understanding?

A. It does in the sense that I worked

14 every hour and minute reflected on the affidavit on

15 this case, yes.

Q. Now, was your time leading up to the

17 hearing on October 31st inflated because of the

18 short period of time you had from the time you were

19 assigned this case to the time that the hearing

20 occurred?

MR. PARTEE: Object to the use of the

word "inflated." I also object asked and

answered because it seems like now for a

third time we are going to time records.

L.A. REPORTING (312) 419-9292

259

HEARING OFFICER WEBB: Sustained.

THE WITNESS: I'll be happy to answer.

MR. JAWGIEL: Okay. That's all I

have, Mr. Murphy. Thank you, sir.

MR. PARTEE: I have nothing further.

HEARING OFFICER WEBB: Thank you.

MR. PARTEE: Ms. Webb, before the

State rests, at this point I'd like to move

to admit Mr. Murphy's resume.

HEARING OFFICER WEBB: I'm going to

admit it.

MR. PARTEE: With that, the State

rests.

MR. JAWGIEL: I move for a directed

finding in favor of the respondent for the

failure of the State to establish its case.

HEARING OFFICER WEBB: I do not have

the authority to rule on that, Mr. Jawgiel,

so I would ask you to present your case.

MR. JAWGIEL: I just want to make my

record.

At this point I would call Deborah

Stonich.

L.A. REPORTING (312) 419-9292

260

DEBORAH STONICH

2 having been first duly sworn, was examined and

3 testified as follows:

DIRECT EXAMINATION

5 BY MR. JAWGIEL:

Q. Ma'am, could you please state your

7 full name for the record and please spell your last

8 name.

A. Deborah Stonich, D-E-B-O-R-A-H,

10 Stonich, S-T-O-N-I-C-H.

Q. Are you currently a licensed attorney

12 in the State of Illinois?

A. Yes.

Q. And how long have you been a licensed

15 attorney?

A. Since 1987.

Q. Are you currently employed?

A. Yes.

Q. And where?

A. I am a claim analyst for CNA Insurance

21 Company.

Q. And what are your duties relevant to

23 this matter of which you perform at CNA?

A. Could you please rephrase the

L.A. REPORTING (312) 419-9292

261

1 question?

Q. Certainly. Relevant to the Skokie

3 Valley case, what are the duties that you perform at

4 CNA Insurance Company?

MR. PARTEE: Objection, foundation.

He hasn't established that what she does is

relevant.

HEARING OFFICER WEBB: Well, I think

this is the question to answer that. I'm

hoping. So I'll allow the question.

A. I was asked to be a witness in this

12 case because part of my duties with CNA Insurance

13 Company as a claim analyst I'm responsible for

14 litigation management. A subset of the litigation

15 management duties that I have is to review bills

16 that are submitted to us for payment.

17 BY MR. JAWGIEL:

Q. And are those attorney's bills?

A. Yes, those are attorney bills.

Q. And in preparation for providing

21 opinions in this case, what if anything did you

22 review?

A. I reviewed several guidelines

24 generated by other insurance companies, as well as

L.A. REPORTING (312) 419-9292

262

1 other corporate entities that are not insurance

2 companies.

Q. Did you review any documents that were

4 provided by the petitioner.

MR. PARTE: I'll object.

HEARING OFFICER WEBB: We normally

refer to the AG as the complainant.

MR. JAWGIEL: Well, in this case they

are filing a petition so I just referred to

them as the petitioner.

11 BY MR. JAWGIEL:

Q. The complainant, the People?

A. Yes, I did review documents.

Q. I see you have a document next to you.

15 Is that your report that you generated in this case?

A. Yes, it is.

MR. JAWGIEL: We'll mark that

Respondent's 102.

(Respondent's Exhibit

No. 102 marked.)

22 BY MR. JAWGIEL:

Q. Now, prior to working for CNA

24 Insurance Company what sort of work did you, if any,

L.A. REPORTING (312) 419-9292

263

1 as an attorney?

A. I worked for the Illinois EPA in

3 Springfield, Illinois, and I also worked for the

4 Illinois Pollution Control Board.

Q. How long did you work the Illinois

6 EPA?

A. I worked for the Illinois EPA for two

8 years from 1987 to 1989, somewhere in there.

Q. And how long did you work for the

10 Illinois Pollution Control Board?

A. From 1990 to 1993.

Q. And in your career as an attorney

13 approximately how many bills for attorney's fees

14 have you reviewed?

A. Thousands.

Q. And are some of those bills for law

17 firms in the Chicagoland area?

A. Yes.

MR. PARTEE: I would object.

HEARING OFFICER WEBB: Well, I think

it's establishing background right now.

MR. JAWGIEL: Well, it establishes

background and the custom and practice in the

area in which this AG office was located and

L.A. REPORTING (312) 419-9292

264

it also establishes knowledge with respect to

fees in this geographic area.

3 BY MR. JAWGIEL:

Q. Do you know the name of any of the

5 firms that you have reviewed bills for in the

6 Chicagoland area?

A. Yes.

Q. Who are they.

A. Ross Dixen & Bell, Swanson Martin &

10 Bell, Vetter Price, Haskell Perrin, Seyfarth Shaw

11 are just a few examples.

Q. Now, in your report you list American

13 Bar Associate codes and other references. Is this a

14 complete set of the references which you reviewed in

15 preparation for your opinions in this case?

A. Yes.

Q. And what are those -- well, I'll break

18 that down.

Are these billing procedures and

20 guidelines?

A. Yes.

Q. Did you form any opinions regarding

23 the People's petition for fees?

A. Yes.

L.A. REPORTING (312) 419-9292

265

Q. And you based your opinion on those

2 guidelines, your experience, as well as the

3 documents you reviewed submitted by the People?

A. Yes.

Q. Did you form any opinions regarding

6 Mr. Cohen's formatting of his bills?

A. Yes.

Q. And what was that opinion?

A. My opinion is that the formatting for

10 Mr. Cohen's entries does not typically conform to

11 what I would generally see when reviewing bills.

Q. How so?

A. Well, generally when bills are

14 submitted, you should have a time entry, the time

15 keeper's initials, a very succinct and exact

16 description of the tasks that were covered in that

17 time frame and the time associated with that task.

Q. With respect to the accuracy of Mr.

19 Cohen's bills, did you formulate an opinion?

A. Yes.

Q. What was that opinion?

A. My opinion is that they were not as

23 accurate as they could have been when compared to

24 what I see from other attorneys when they account

L.A. REPORTING (312) 419-9292

266

1 for their time.

Q. Did you find any fees to be suspect

3 with the recording of time as 1 hour, 2 hours, 14

4 hours as opposed to any other type of records?

A. Yes, I did.

Q. What did you find suspect?

A. Normally when I review bills,

8 attorneys account for their time in tenths of an

9 hour increments. Therefore when I review bills, I

10 will see time entries in various fractions of an

11 hour. Mr. Cohen's entries, however, with the

12 exception of seven time entries out of, I believe

13 126, were in whole hours. The remaining seven time

14 entries were for .5 hours. I find that highly

15 unusual. I have never seen bills that were that

16 consistent in terms of accounting for hours.

Q. Is it your opinion that the practice

18 in the Chicagoland area is to bill at one-tenth of

19 an hour?

A. That is correct.

Q. Did you come to any opinions regarding

22 the lack of a time keeping system by the Attorney

23 General's office?

MR. PARTEE: Objection, leading.

L.A. REPORTING (312) 419-9292

267

HEARING OFFICER WEBB: I'm going to

allow it.

A. I thought that it was highly unusual.

4 BY MR. JAWGIEL:

Q. How so?

A. I have never seen a calendar system

7 used and submitted to account for time.

Q. Are you familiar with the billing

9 types of programs?

A. Yes, I am.

Q. Which ones are you familiar with?

A. There are several types of accounting

13 products, and I list a few on page three of my

14 report, Abacus Law, Law Time, Perfect Practice.

15 Those are only three examples of the myriad of

16 programs that are out there that law firms use to

17 account for their time.

Q. Has it been your experience that when

19 bills are submitted, they actually have the charge

20 associated with the task and time that is being

21 used?

A. That's correct.

Q. Is there a break down in any of the

24 bills that you see when you review the bills in the

L.A. REPORTING (312) 419-9292

268

1 Chicagoland area that have separate categories for

2 paralegals used?

A. Not a separate category, per se.

4 However, if a paralegal is billing time, her

5 initials will be shown, her tasks will be described,

6 the time she spent on the task and her billing rate

7 will be shown.

Q. Has it been your experience that the

9 rate charged for paralegal services is the same as

10 the attorneys' services?

A. No.

Q. Now, Respondent's Exhibit 102 that's

13 before you, is that a true and accurate copy of your

14 report?

A. Yes.

Q. And that's a report that you have

17 compiled during the course of this case; is that

18 correct?

A. Yes.

Q. And that document expresses your

21 opinions that you've come to in this case; is that

22 correct?

A. Yes.

Q. And this was, this document was

L.A. REPORTING (312) 419-9292

269

1 generated during the course of this case in your

2 employment in this case?

A. Yes.

MR. JAWGIEL: At this point, I'd move

to have Exhibit 102 admitted into evidence.

HEARING OFFICER WEBB: Mr. Partee?

MR. PARTEE: I would object on the

grounds that I raised earlier which was that

it was not properly disclosed to the State,

and I can provide a reference to a deposition

transcript wherein we specifically requested

the table attached to this report and

Mr. Jawgiel refused to give it to us on

privileged grounds, and now he is trying to

admit it into evidence.

MR. JAWGIEL: He has long had an

opportunity to bring a motion before the

Board. He sat on his hands with respect to

that. I disagree strongly with the fact that

I did not provide him with the document. We

did provide him with the document at the

conclusion of Mr. Cohen's deposition, but

bottom line is that they sat on their hands

with respect to this issue and they certainly

L.A. REPORTING (312) 419-9292

270

have had this document before Ms. Stonich's

discovery deposition. They did not object to

going forward with her deposition. They

didn't bring any motion to extend the time or

anything along those lines.

HEARING OFFICER WEBB: But did you

give them a copy or did you show them a copy?

MR. JAWGIEL: I gave them a copy at

Mr. Cohen's deposition.

MR. PARTEE: No, that's incorrect. We

specifically asked for it. You refused to

give it to us. When we left Mr. Cohen's

deposition, when we were leaving, he handed

us a copy of her expert report and that's the

table.

MR. JAWGIEL: That table is not the

same table I had at the deposition.

MR. PARTEE: That doesn't answer my

question then. You did not --

HEARING OFFICER WEBB: I understand

both of your arguments, and my ruling is that

I am going to admit the report without the

table. I can't admit it if it appears to be

a very substantial piece of evidence and if

L.A. REPORTING (312) 419-9292

271

the People haven't seen it.

MR. JAWGIEL: They have seen it.

They've had it before her deposition. It's

referenced in her deposition.

MR. PARTEE: Let me substantiate it

with the record.

HEARING OFFICER WEBB: It's my

understanding that they are contending that

that was something different or that --

MR. JAWGIEL: No, that's not correct.

They are saying at the end of Mr. Cohen's

deposition I didn't give him the table

because he asked me for the table I had at

that deposition, which is not true, but the

bottom line is that at the deposition of

Ms. Stonich they had the table.

MR. PARTEE: That is correct, but we

were handed her table -- we were handed this

table during the deposition. We asked

Mr. Jawgiel --

MR. JAWGIEL: I wasn't at her

deposition.

MR. PARTEE: Please let me finish. I

didn't interrupt you.

L.A. REPORTING (312) 419-9292

272

Mr. Jawgiel was holding this table

during Mr. Cohen's deposition -- and bear

with me for a second.

MR. JAWGIEL: Just so the record is

clear, we had requested a copy of

Ms. Stonich's deposition which apparently

HEARING OFFICER WEBB reporter retained by the

State did not provide us, but Mr. Partee has

a copy of that transcript, which I find very

suspect.

MR. PARTEE: That's kind a separate

issue.

MR. JAWGIEL: Well, it puts us at a

great disadvantage. If HEARING OFFICER WEBB

reporter hired by you failed to provide us a

document, we requested it.

MR. PARTEE: This is a copy of the

cover letter to Mr. O'Neill dated November

22nd conveying a copy of Ms. Stonich's

deposition transcript.

MR. JAWGIEL: That deposition

transcript was never delivered to our office.

MR. PARTEE: Is your address 5847

North Milwaukee in Chicago, Illinois?

L.A. REPORTING (312) 419-9292

273

MR. JAWGIEL: Yes, it is.

HEARING OFFICER WEBB: Well, right

now, I mean, we're not trying to introduce

the deposition as evidence. We are trying to

admit this report.

MR. JAWGIEL: He had the report with

the attachments at Ms. Stonich's deposition.

They didn't bring any motion prior to today

saying that they were prejudiced. I didn't

know if they reserved their rights or not to

be honest with you. I wasn't there. Did you

reserve your right to redepose her because

you believed you were prejudiced at the time?

MR. PARTEE: We are not asking to

redepose her. We are asking to have this not

be admitted into evidence because I believe

it was not properly disclosed.

MR. JAWGIEL: I believe it was

properly disclosed. It's was at her

deposition. Supreme Court rule 213(i) allows

for an opinion of the witness to be amended

at the deposition. It was very clear about

that. So if you want to go ahead and not

submit that, you are violating Supreme Court

L.A. REPORTING (312) 419-9292

274

Rule 213(i).

MR. PARTEE: Let me read from

Mr. Cohen's transcript on this issue and

question -- and I can provide a copy. I can

actually give everyone a copy to read along

with me if you want. Question from

Mr. Jawgiel --

MR. JAWGIEL: What page are you

referring to, please?

MR. PARTEE: I'm on page 106 of

Mr. Cohen's deposition transcript:

I'm going to state the basis for

my objection. I want to make sure I get it

all out, and then we'll move on because I

don't want to spend all night on this issue.

But on page 106 the question was -- that you

asked, Mr. Jawgiel:

"Q. Is there anywhere in your

notation indicating that you actually drafted

any motion or petition in this case where you

actually note "draft"?

Answer: The best document for me

to look at, for me to look for that would be

the Excel Spread sheet.

L.A. REPORTING (312) 419-9292

275

MR. PARTEE: Mike" --in reference

to Mr. Jawgiel -- "isn't that what you are

looking at?

MR. JAWGIEL: This is our own --

this is my own internal spreadsheet which of

course is attorney-client privilege. I don't

know that we have Excel spreadsheets. Mike

says that we have them" -- and refers to

Mr. O'Neill."

So Mr. Jawgiel did not produce those

to us.

MR. O'NEILL: That's not the

spreadsheet that they were referring to.

That's the spreadsheet that was part of

Mr. Cohen's deposition. That's what he

referred to as the Excel spreadsheet at his

deposition.

MR. PARTEE: No, Mr. Jawgiel was not

referring to a document the State produced.

MR. JAWGIEL: I stay consistent with

what I say, unless you are going to swear

Mr. Partee in, this bottom line is this was

my own internal spread sheet, which is

attorney work product. That's not what is

L.A. REPORTING (312) 419-9292

276

attached to her report. That's a different

spreadsheet. So bottom line is that he is

making representation without any basis

without any foundation. He is sitting across

from me at a table and looking over on to my

document, which tells you a little bit about

the character of Mr. Partee --

MR. COHEN: Objection.

MR. PARTEE: Objection.

HEARING OFFICER WEBB: Sustained.

MR. JAWGIEL: He is going to sit here

and make representations at this point in

time regarding what's going on.

MR. PARTEE: We have sustained a lot

abuse and snide comments, and it's really

getting to be enough.

MR. JAWGIEL: So the bottom line is,

unless he can establish that that was mine,

and that's my own spread sheet, and I'm not

producing that document, that's attorney work

product.

MR. O'NEILL: That is not the Excel

spreadsheet that was being referred to.

HEARING OFFICER WEBB: I hear you.

L.A. REPORTING (312) 419-9292

277

You said the same thing ten times.

MR. O'NEILL: I said that once.

HEARING OFFICER WEBB: I apologize. I

mean collectively. It is your opinion that

you have given them that; you've disclosed

this information?

MR. JAWGIEL: At minimum it was

disclosed at Ms. Stonich's deposition. At a

minimum it was disclosed there.

HEARING OFFICER WEBB: The

information.

MR. JAWGIEL: That's there. All of

it. And they have agreed to that. They

said, yes, they did receive it at her

deposition.

MR. PARTEE: It was disclosed in an

eight-page, very small font table was

disclosed to us for the first time during her

deposition.

HEARING OFFICER WEBB: Okay. Here is

what I am going to do in the interest of

time, I'm going to admit it, and I'd like

you -- obviously, your objections are

preserved for appeal, but I'm doing what I

L.A. REPORTING (312) 419-9292

278

feel I have to do to move things along, and

so I'm going to admit it.

MR. JAWGIEL: Great. Thank you.

4 BY MR. JAWGIEL:

Q. Ms. Stonich, did you come to an

6 opinion regarding block billing in this case?

A. Yes.

Q. And what is that opinion?

A. Block billing should not be used, and

10 it is not typically used when bills are submitted to

11 clients.

Q. Why is that?

A. Because one cannot review a time entry

14 that's block billed and determine if each entry is

15 reasonable because there is no time associated with

16 each individual entry.

Q. And just for the purposes of this

18 record, what is block billing; how is that defined?

A. Block billing --

MR. PARTEE: Excuse me. I'm sorry. I

have an objection on relevance grounds to

questions regarding bills submitted by

attorneys to clients because that's not what

we're dealing with here.

L.A. REPORTING (312) 419-9292

279

HEARING OFFICER WEBB: Well --

MR. JAWGIEL: That is ridiculous. It

has to do with what the industry standard in

the Chicagoland are which includes bills

submitted by attorneys.

HEARING OFFICER WEBB: I am going to

give respondent some leeway and see where it

goes.

9 BY MR. JAWGIEL:

Q. What is block billing?

A. Block billing is when you aggregate

12 multiple tasks and only provide one time entry for

13 all of these tasks.

Q. Now, with respect to the fee petition

15 that has been submitted by the People in this case,

16 is that analogous in your opinion to a billing

17 statement issued to a client?

MR. PARTEE: If I could object that

they have not adequately qualified her as an

expert yet and they are asking for her expert

opinion.

MR. JAWGIEL: I went through her

qualifications earlier.

HEARING OFFICER WEBB: I feel they've

L.A. REPORTING (312) 419-9292

280

adequately qualified her.

MR. PARTEE: Well, we do object to

that and intend to address it on cross, but I

understand the ruling.

A. Sorry, could you please repeat the

6 question?

7 BY MR. JAWGIEL:

Q. Certainly. When you reviewed the

9 petition for fees submitted by the People in this

10 case, did you find them -- strike that.

Did you have any criticisms of

12 Mr. Cohen's use of block billing?

MR. PARTEE: Objection to the form of

the question.

MR. JAWGIEL: In his affidavit --

HEARING OFFICER WEBB: Overruled.

A. Yes.

18 BY MR. JAWGIEL:

Q. And what were those opinions?

A. My opinion is that he used it quite

21 often and that as a result I could not associate

22 time for each individual task, and therefore I am

23 not able to determine whether the time he spent on

24 each individual task is reasonable or not, and I

L.A. REPORTING (312) 419-9292

281

1 don't think the Board will be able to determine

2 that.

Q. Are you aware of anybody who can

4 determine that?

A. No.

MR. PARTEE: I would object that that

calls for speculation as to what the Board

could and couldn't determine.

HEARING OFFICER WEBB: Sustained.

MR. PARTEE: He is testifying on

behalf of the Board.

MR. JAWGIEL: It's an opinion. She

has a right to express an opinion that she

could with respect to the review of documents

or anybody can do with respect to the review

of documents.

MR. PARTEE: My objection was

sustained.

MR. JAWGIEL: If I put a number on

this pad and I don't show it to anybody, do

you think it's possible for anybody, whether

it's the Board or Ms. Stonich to tell you

what number it is, and she's also somebody

who has worked at the Board, so I certainly

L.A. REPORTING (312) 419-9292

282

think she has a foundation with respect to

what the Board will do.

MR. PARTEE: I objected to

speculation, not for her opinion.

HEARING OFFICER WEBB: Can you ask the

question again, Mr. Jawgiel, please.

MR. JAWGIEL: Certainly. I don't even

remember what the question was to be quite

frank, which at this point in time we're at a

quarter to 7:00 in the evening.

11 BY MR. JAWGIEL:

Q. In your opinion will anybody be able

13 to determine whether or not the block billing

14 entries of Mr. Cohen were reasonable?

MR. PARTEE: Objection, whether

anybody could determine. She can offer her

opinion, but not an opinion on behalf of

anyone else.

HEARING OFFICER WEBB: Can you ask her

opinion?

MR. JAWGIEL: I said in her opinion.

A. In my opinion no one could be able to

23 make that determination based upon those entries.

24 BY MR. JAWGIEL:

L.A. REPORTING (312) 419-9292

283

Q. In your opinion in what format should

2 Mr. Cohen have used in his affidavit attached to the

3 fee position?

A. Well, Mr. Cohen should have listed the

5 dates, a description for the date of services to

6 what the service was, and by that I mean no block

7 billing. He should associate a time with each

8 individual task, and also the total time then for

9 the group of tasks, if indeed there is a group of

10 tasks for an entry, and typically if this were

11 mirroring a bill, there would be a dollar figure

12 associated for that task.

Q. Now, with respect to Mr. Cohen's

14 descriptions -- which he does give descriptions; is

15 that correct?

A. Yes.

Q. And in your opinion are those adequate

18 descriptions for somebody to determine what he did

19 on any given day?

A. No.

Q. Why not?

A. Well, in general they are quite vague.

23 There are a lot of general descriptors meaning that

24 I see entries such as prepare for trial or

L.A. REPORTING (312) 419-9292

284

1 preparation of, and it doesn't get to the heart of

2 what the task is. If a Board order is referred to,

3 for example, the Board order is not identified by

4 date or subject matter. So I'm unable to tell what

5 Board order was reviewed. If there was a meeting,

6 the participants often weren't identified or the

7 subject matter wasn't identified. Therefore, I had

8 difficulty determining was the meeting or the

9 interoffice, intraoffice conference of a substantive

10 nature, of an administrative nature. If

11 correspondence was referred to, again, it was not

12 identified. So, again, I had a hard time

13 determining what the subject matter of the

14 correspondence was. If there was a telephone call,

15 again, the subject matter of the telephone call

16 would not have been identified. So all of those

17 concerns go to the issue of vagueness.

Q. Were there any suspicions regarding

19 the requests for costs submitted by Mr. Cohen for

20 expenses?

MR. PARTEE: I would object to the

form of the question, and I think you used

the word any "suspicions."

MR. JAWGIEL: I apologize. I'll

L.A. REPORTING (312) 419-9292

285

rephrase.

2 BY MR. JAWGIEL:

Q. Did you formulate any opinions with

4 regard to the costs Mr. Cohen submitted?

A. Yes.

Q. And what are those opinions?

A. Well, the costs and expenses that I

8 reviewed, first off, were not formatted in a manner

9 that I would, that I normally see when I review

10 bills. As a result, it was quite difficult to track

11 and to verify the costs. Also, there were two

12 affidavits regarding costs that did differ, and that

13 caused me some concern as to the accuracy of the

14 tallying of the costs. My last concern with regard

15 to the costs would be the nature of the costs

16 themselves, what would typically be allowed and what

17 would not be allowed.

Q. Did you formulate any opinions

19 regarding the hourly rate requested by the People

20 for the attorneys then?

A. Yes.

Q. And what are those opinions?

A. Well, in my review of the cost and fee

24 petition, as well as my knowledge of the Attorney

L.A. REPORTING (312) 419-9292

286

1 General's office, I did not see any specific statute

2 or regulation that addresses the hourly rate. I

3 know of no Attorney General position or

4 documentation that sets forth what their rate would

5 be in a fee and cost petition.

Q. In the fee petition there was a

7 footnote regarding a case cited by the petitioner or

8 complainant. Do you remember seeing that?

A. Yes.

Q. In your opinion, did the Attorney

11 General's office adequately relate that case to

12 their claim for a rate and attorneys' fees?

A. No, it was simply a case citation.

Q. And what in your opinion was lacking

15 in their footnoting these cases?

A. Well, I would have liked to have known

17 what the case was about. I would like to have known

18 the expertise of the attorneys that were involved.

19 Basically I would have liked to have information

20 that may have explained why the rate in those cases

21 was set at the amount it was.

Q. Did you have any opinion of what, if

23 anything, the Attorney General's fees should be

24 based upon?

L.A. REPORTING (312) 419-9292

287

A. In light of the fact that there's no

2 statute or regulation or Attorney General's opinion

3 or publication regarding it, regarding fees, my

4 thought is that the Attorney General should be

5 entitled to what it costs them to prosecute the case

6 and my thought on that would be if there is no set

7 rate, the next best thing would be to reimburse the

8 Attorney General for what it has to pay its

9 attorneys.

Q. And that would be the salaries of the

11 attorneys?

A. Yes.

Q. In your opinion, did you find any

14 excessiveness in the billing or the time entries of

15 Mr. Cohen?

A. Yes.

Q. And what is your opinion in that

18 regard?

A. Well, there were several time entries

20 that I totaled together when they had the same task

21 descriptions, and on page six of my report I list

22 some of my concerns with regard to those entries.

23 My understanding is this was a two-day trial. For

24 example, 104.5 hours was spent on trial preparation.

L.A. REPORTING (312) 419-9292

288

1 In my experience for a two-day trial, that appears

2 to be excessive.

Q. That would be listed in the section

4 "Excessive Billing," those would be your opinions

5 where you found excessive billing?

A. Yes, that's correct.

Q. And that would include 19 hours for

8 deposition preparation, Fredericks, 23 hours for

9 deposition preparation Huff and/or Kallis,

10 K-A-L-L-I-S, 104.5 hours for trial preparation, 91

11 hours for closing arguments, 6 hours for closing and

12 rebuttal; is that correct?

A. That's correct.

Q. And that's for Mr. Cohen's hours?

A. That's for Mr. Cohen's hours.

Q. Were there also hours from Mr. Murphy

17 related to some of those tasks?

A. Yes, there were.

Q. And what did you find with respect to

20 Mr. Murphy's hours and the excessive billing issue?

A. I just simply noted in my Excel

22 spreadsheet that's attached to this report, and it's

23 incorporated as part of the report when Mr. Murphy

24 also billed for those times.

L.A. REPORTING (312) 419-9292

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Q. And the total amount of hours based on

2 your opinion that was spent with respect to trial

3 preparation would have been a compilation of what

4 hours -- strike that question.

In light of the fact that

6 Mr. Murphy spent some time on the trail preparation

7 in this case, you would take the hours Mr. Murphy

8 would have spent and add those to the hours

9 Mr. Cohen would have spent and found it to be even

10 higher than 91 hours?

MR. PARTEE: Objection, it's leading.

I object to the form of the question.

MR. JAWGIEL: I was just trying to

figure out how would you calculate the total

amount of hours spent for trial preparation

by the Attorney General's office in this case

in your opinion.

HEARING OFFICER WEBB: I'm going to

allow that to speed things up a lit bit.

A. With regard to the time entries on

21 page 6 that I discussed, that only deals with

22 Mr. Cohen's entries. Therefore, if you look at the

23 Excel spreadsheet, and if you note in the comments

24 section where I noted that Mr. Murphy spent hours

L.A. REPORTING (312) 419-9292

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1 with similar task descriptions, that would only

2 increase the number of hours that I mentioned on

3 page 6.

5 BY MR. JAWGIEL:

Q. Okay. Did you also find Mr. Murphy's

7 time entries to be vague as well?

A. Yes.

Q. Similar to the same opinions that you

10 had with respect to Mr. Cohen's?

A. Yes.

Q. And that would be also with respect to

13 the increments Mr. Murphy billed in either hours or

14 half hours?

A. Yes.

Q. So your opinions that you have

17 expressed today with respect to Mr. Cohen's entries

18 would apply to Mr. Murphy's entries as well?

A. That's correct.

Q. Do you have an opinion regarding

21 whether the attorneys' time being used to type a

22 document is within the standard practice in the

23 Chicagoland area and reasonable in this case?

A. Yes, I do have an opinion regarding

L.A. REPORTING (312) 419-9292

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1 that.

Q. And what's your opinion?

A. My opinion is that attorneys should

4 not be charging for clerical tasks such as typing

5 documents.

Q. Has it been your experience that

7 attorneys also should not be charging an attorney's

8 fee when they are conducting paralegal work or

9 taking on paralegal tasks?

A. That is correct.

Q. And in your opinion what would those

12 tasks include, paralegal tasks include, just for

13 clarification?

A. Some examples would be legal research,

15 drafting of form documents, such as notices of

16 filing, simple discovery requests, such as

17 interrogatories, request for production of

18 documents.

Q. Now, in this case, at one point in

20 time there's testimony that there would have been

21 three attorneys on this trial, but certainly we know

22 that there were two attorneys at the hearing from

23 the Attorney General's office. Do you have an

24 opinion regarding the use of two attorneys for this

L.A. REPORTING (312) 419-9292

292

1 type of a trial?

A. Yes.

Q. And what is that opinion?

A. Generally that's atypical. In the

5 reviews of the guidelines that I reviewed and from

6 my practice and personal knowledge, generally it's

7 expected that only one attorney works on a case and

8 attend trials, depositions, hearings. There are

9 cases where more than one attorney can attend, but

10 those are in rare circumstances. Generally, a team

11 approach on a case is not permitted or allowed or

12 accepted.

Q. Do you have any opinions regarding

14 whether or not it's reasonable for an attorney to

15 request time in a fee petition in order to learn a

16 file because he was substituted in or because

17 another attorney left the office or anything along

18 those lines?

A. Yes, I do have an opinion regarding

20 that.

Q. What is your opinion?

A. Generally a client should not be

23 penalized for the substitution of the attorney.

24 Meaning, if there is a personnel change at a firm

L.A. REPORTING (312) 419-9292

293

1 and a new attorney is assigned to a file and must

2 get up to speed on the file, the client should not

3 be billed for the time associated for that attorney

4 to get up to speed for the prior attorney.

Q. Would that hold in this case with the

6 AG charging, for example, Kelly Cartwright leaving

7 the firm and Mr. Cohen having to spend time learning

8 the file?

A. I don't see why it should be held to

10 any different standard to any different attorney

11 practicing.

Q. Did you find that there was an

13 indication or duplication of effort in this

14 particular case?

A. Yes.

Q. And what is your opinion in that

17 regard?

A. Just that there was a duplication of

19 effort, and that the representatives of Skokie

20 Valley Asphalt should not be charged with those

21 duplications of effort.

Q. And where would you find those? Give

23 me an example of a duplication of effort in this

24 particular case that you filed?

L.A. REPORTING (312) 419-9292

294

A. If I can just take a moment to review

2 my spreadsheet.

Q. Sure.

A. Okay. For example, on page 5 of my

5 Excel spreadsheet that's attached to the report, on

6 10/17/03 to 10/18/03 you have a task description by

7 Mr. Cohen, and I note in the comments section that

8 Mr. Murphy spent 3.5 hours on file review on that

9 same date. So that would be a duplication of effort

10 because Mr. Cohen also has stated that he has spent

11 8 hours. And one of the tasks associated with that

12 time entry is review file, and that's just one

13 example.

Q. Did you find anything suspicious

15 regarding -- I apologize.

In your opinion did you find

17 anything unusual about the parking receipt that has

18 been submitted in this case?

A. Yes.

Q. And what's your opinion in that

21 regard?

A. Well, the parking receipt I believe

23 was for approximately one hour less in time versus

24 the time that Mr. Cohen billed on that particular

L.A. REPORTING (312) 419-9292

295

1 date.

Q. And would you find that to be suspect

3 because of the daily course of getting to the

4 office, getting back to the office, having to eat

5 lunch, going to the bathroom, would reduce each

6 amount of time that would be on the parking receipt?

A. What I assumed in that situation or

8 what I think can be assumed is that if someone

9 drives his or her car down to the office in the City

10 of Chicago, they are going to park it there, leave

11 it for the time that they are in the office and then

12 pick it up. Now, if Mr. Murphy is --

Q. Mr. Cohen?

A. If Mr. Cohen is saying he spent an

15 additional hour on tasks during that day, it does

16 not jive at least, it does not agree with the amount

17 of time that he was in the parking garage, and

18 therefore it leads me to question the accuracy of

19 that billing.

Q. Okay. In your opinion do attorneys

21 bill for the time that they go to lunch to the

22 client unless the task is actually related to a

23 client meeting?

MR. PARTEE: Objection, relevance.

L.A. REPORTING (312) 419-9292

296

HEARING OFFICER WEBB: I'll allow it.

A. No, they would not bill for lunch,

3 bathroom breaks, time taking phone calls on other

4 cases, for example, talking with other attorneys in

5 the office, that type of things.

6 BY MR. JAWGIEL:

Q. Do you find the entries, do you have

8 any opinions regarding the entries for Mr. Cohen or

9 large amounts of time, per se, for example, 14 hours

10 or 12 hours to be suspicious in any manner?

A. Yes.

Q. What is your opinion in that regard?

MR. PARTEE: I would object to the

suspicious word again because I think - I

don't think she used the word suspicious in

her expert report. It's an unfair

mischaracterization.

HEARING OFFICER WEBB: We use unusual.

MR. JAWGIEL: I will rephrase the

question.

21 BY MR. JAWGIEL:

Q. Do you find in your opinion the large

23 block of time billed by Mr. Cohen, for example, 14

24 hours or 12 hours to be unusual?

L.A. REPORTING (312) 419-9292

297

A. Yes.

Q. And what is your opinion in that

3 regard?

A. Well, I find it highly unusual that an

5 attorney is able to bill that amount of time for a

6 task during a day or for a series of tasks during a

7 day. I do know that there are billing guidelines

8 that I reviewed wherein corporations earmark those

9 entries because they find them to be questionable,

10 and I also know from colleagues that I have in the

11 legal community that those are, that are in private

12 practice, that they have told me that it is very

13 difficult to bill 12 to 14 hours in a day simply

14 because you have to be an extremely efficient biller

15 because you take time out during the day to take

16 lunch, work on other cases, take phone calls, take

17 breaks. So in essence you'd almost have to be

18 working, when I take into account all of the down

19 time or time away from the actual task billed, you

20 would then be in the office even a longer period of

21 time than 14 or 12 hours.

Q. Do you have any opinions regarding the

23 amount of travel that was reported by Mr. Cohen in

24 this case?

L.A. REPORTING (312) 419-9292

298

A. Yes.

Q. And what is that opinion?

A. Well, travel time is generally not

4 reimbursable on bills. In some cases it can be

5 reimbursed at a lower rate. That's provided if an

6 attorney is working while they are traveling.

7 Typically that would be airline travel, for example,

8 where an attorney can work on a case while

9 traveling. But for driving, for example, and in

10 many cases, that's just not reimbursable.

Q. Do you have any opinions regarding

12 copying expenses requested in this case?

A. Yes. I did note that there was no

14 in-house copying done in this case; that all of the

15 copying or photocopying was contracted out to

16 Kinko's. Generally, when firms bill for their

17 photocopying costs, it's for internal photocopying

18 costs, and it is at a set rate, whether that rate

19 would be seven cents or ten cents. Sometimes I have

20 seen it up to 15 cents a page, but generally it's

21 expected that the photocopies will be made in the

22 office. Of course, there are exceptions made when

23 the office does not have capabilities to make

24 photocopies of a specialized nature, such as

L.A. REPORTING (312) 419-9292

299

1 enlarged photocopying for exhibit purposes.

Q. And all the opinions you have

3 expressed here today are based upon your

4 understanding of the custom and practice of the

5 legal community in the Chicagoland area?

A. Yes.

Q. And all your opinions that you've

8 expressed today apply to the petition submitted by

9 the People in this case?

A. Yes.

MR. JAWGIEL: Thank you.

CROSS-EXAMINATION

13 BY MR. PARTEE:

Q. For the record, my name is Mike

15 Partee, and I have some questions for you,

16 Ms. Stonich.

Let me start by asking you a

18 little bit about your education. You have not

19 prepared any resume or CV for this case, correct?

A. No, I have not. No, I have not.

Q. And when did you graduate from

22 college?

A. I graduated in 1983.

Q. And when did you go to law school?

L.A. REPORTING (312) 419-9292

300

A. I went to law school from 1984 to

2 1987.

Q. And there wasn't any relevant work

4 experience relevant to your opinion today between

5 undergrad and law school?

A. No.

Q. And you are not a member of any bar

8 association, correct?

A. No.

Q. You are a member of one insurance

11 trade association; is that correct?

A. Yes.

Q. Let me ask you about your experience.

14 You have never taken a deposition before; is that

15 correct?

A. Correct.

Q. You've been deposed before, but you've

18 never been deposed as an expert witness; is that

19 correct?

A. That's correct.

Q. And all of your deposition experiences

22 have been as a defense witness, correct?

A. That's correct.

Q. Is it fair to say there's only one

L.A. REPORTING (312) 419-9292

301

1 Illinois case that you've been deposed in?

A. I don't believe that's correct.

Q. How many cases have you been deposed

4 in that were Illinois cases?

A. Possibly three to five.

Q. Could it have been less than that?

MR. JAWGIEL: I am going to object.

In Illinois cases they haven't established

what capacity she was being deposed, so it

doesn't have any relevance in this case.

HEARING OFFICER WEBB: I'll allow it.

It was mentioned in background.

A. It's possible.

14 BY MR. PARTEE:

Q. Have you testified in a trial or a

16 hearing before?

A. Yes.

Q. And did you testify as an expert?

A. No, I don't believe I have.

Q. So this is your first fore into expert

21 testimony in this case?

MR. JAWGIEL: I'm going to object to

the term expert. The 213(f) rule clearly

states opinion witness. Nowhere does it use

L.A. REPORTING (312) 419-9292

302

expert. It's either retained opinion

witness, independent opinion witness or

nonretained and fact witness. So the phrase

expert has no bearing or relevance in this

case whatsoever. Expert is not the

definition of what is in Supreme Court Rule

213.

MR. COHEN: Is that an opinion?

MR. JAWGIEL: That is the objection.

Is he a witness now or is he now an attorney?

HEARING OFFICER WEBB: Well, I think

we were just clarifying your objection to his

use of the term "expert."

MR. JAWGIEL: Correct. It is not the

standard in the State of Illinois under

Supreme Court Rule 213(f).

HEARING OFFICER WEBB: I don't even

remember what the question was.

MR. PARTEE: My question was if and

when you have testified as an expert before.

MR. JAWGIEL: Same objection.

HEARING OFFICER WEBB: You can answer.

I'll allow it.

A. No.

L.A. REPORTING (312) 419-9292

303

1 BY MR. PARTEE:

Q. And none of the cases in which you

3 have testified involve violations of the

4 Environmental Protection Act, correct?

A. I believe that's correct.

Q. What type of cases have you testified

7 to in the past?

A. I've testified in cases involving CNA

9 Insurance Companies.

Q. And do you have any private practice

11 experience?

A. Yes.

Q. About six months to a year's worth of

14 private practice experience; is that correct?

A. That is correct.

Q. And that was at the Jeffrey Leving Law

17 Firm?

A. That is correct.

Q. In 1987?

A. That is correct.

Q. And then I believe you testified that

22 you went to work for the Illinois EPA in 1988 after

23 you left the Leving Law Firm?

A. In 1987.

L.A. REPORTING (312) 419-9292

304

Q. And you worked at the Illinois EPA for

2 only about two years?

A. Approximately.

Q. And what was your title at the

5 Illinois EPA?

A. I was an air regulatory attorney.

Q. And you only occasionally worked on

8 enforcement cases as a regulator with the EPA?

A. That's correct.

Q. You did not keep track of your time at

11 IEPA?

A. No, I did not.

Q. Do you recall working on any case

14 involving a fee petition at IEPA?

A. No, I do not.

Q. And then from the IEPA you went to

17 work for the Pollution Control Board in about 1990,

18 correct?

A. That's correct.

Q. And you worked there until about 1993?

A. Correct.

Q. And what did you do at the Pollution

23 Control Board?

A. I was a board assistant to Joan

L.A. REPORTING (312) 419-9292

305

1 Anderson.

Q. Do you recall ever working on a case

3 at the Board in which the Attorney General's fees or

4 costs were awarded?

A. I can't recall.

Q. Do you recall any Board orders dealing

7 with the Attorney General's fees or costs while you

8 worked at the Board?

A. I can't recall.

Q. You are not even aware of the

11 circumstances in which the Board would order a

12 respondent to pay the Attorney General's fees or

13 costs; isn't that correct?

A. No, I would not say that's correct.

Q. Have you done some additional research

16 on that issue since your deposition in this case?

A. No, I haven't.

Q. You were deposed in this case on

19 November 15, 2006, right?

A. Yes.

MR. JAWGIEL: I'm going to object to

the use of this transcript. We have not

received a copy of this transcript from

HEARING OFFICER WEBB reporter, and therefore

L.A. REPORTING (312) 419-9292

306

we're at a disadvantage in this case, of this

court reporter hired by the State, and she

did not provide us with the transcript.

MR. PARTEE: Well, three things. I

have copies of the transcript for everyone.

Number two, we have a copy of a cover letter

conveying the transcript to Mr. O'Neill at

the correct address. And three, the

deposition was taken on November 15th, and if

they wanted a copy of this transcript, they

had plenty of time to get it before today.

It was almost a month ago.

HEARING OFFICER WEBB: I'm going to

allow you to read from it.

MR. O'NEILL: Could we also have a

copy of the cover letter that allegedly sent

the transcript to us admitted into evidence?

HEARING OFFICER WEBB: Pardon me?

MR. O'NEILL: Could we get a copy of

the cover letter referenced in the last

statement from HEARING OFFICER WEBB reporter

allegedly stating that and put that into

evidence?

MR. PARTEE: I'm objecting to it going

L.A. REPORTING (312) 419-9292

307

in as evidence.

HEARING OFFICER WEBB: We are not

moving this into evidence.

MR. PARTEE: No, this is for

impeachment.

MR. JAWGIEL: We will deal with that,

with the reporter. If we have to bring other

actions, we will.

Can you tell me what page you are

referencing?

MR. PARTEE: I'm not there yet.

12 BY MR. PARTEE:

Q. But when you had your deposition

14 taken, you had an attorney with you, Mr. O'Neill,

15 correct?

A. That's correct.

Q. There was a court reporter present who

18 took down what you said, correct?

A. That's correct.

Q. And she administered an oath before

21 you testified, correct?

A. Correct.

Q. And I instructed you before you

24 testified that if you didn't understand any of the

L.A. REPORTING (312) 419-9292

308

1 questions, that you were to ask me to rephrase it or

2 for clarification, otherwise we would assume that

3 you understood the question, correct?

A. Uh-hum.

Q. Let me direct your attention to page

6 22 of the deposition transcript.

MR. JAWGIEL: Line please or lines I

should say line?

MR. PARTEE: 14.

(READING:)

"Q. Are you aware of the

circumstances in which the Board would order

respondents to pay Attorney General's fees

and costs?

A. No."

MR. JAWGIEL: I am going to object.

It was not impeachment with respect to the

question that was asked. He asked her if she

was familiar with any cases. You could read

back the last question before he went into

lay the foundation. He didn't ask about an

order, respondent's order.

MR. PARTEE: Let her read the question

back.

L.A. REPORTING (312) 419-9292

309

(Record read as

requested.)

MR. PARTEE: If I could pick up where

I left off reading the deposition transcript.

Page 22, line 14:

(READING:)

"Q. Are you aware of any

circumstances in which the Board would order

respondents to pay the Attorney General's

fees and costs?

A. No."

Did I read that right?

A. Yes, you did.

MR. JAWGIEL: I am just going to

object. It's not impeachment. It says

circumstances in which the Board would order,

that's different than the question asked.

HEARING OFFICER WEBB: The question

asked was phrased as a negative instead of

are you aware or it was phrased you are not

aware, but it was pretty much the same.

22 BY MR. PARTEE:

Q. In 1993 then you left the Board and

24 went to work as a claim analyst at CNA; is that

L.A. REPORTING (312) 419-9292

310

1 right?

A. That's correct.

Q. And I suppose before we move on to

4 your CNA experience, when you were with the IEPA and

5 then the Board, other than interacting with the AG's

6 office more than a decade ago, you have no work

7 experience with the AG's office since, correct?

A. No, direct experience, that's correct.

Q. And you have no work experience in the

10 AG's office in the sense that you've never worked

11 for the Attorney General's office, right?

A. That's correct.

Q. Do you recall ever asking an Assistant

14 Attorney General about billing practices in the

15 Attorney General's office?

A. No.

Q. Okay. So fast forwarding to your move

18 to CNA in about 1993, what was your first position

19 at CNA?

A. I was a claim analyst.

Q. And how long were you a claim analyst?

A. I believe for approximately two to

23 three years.

Q. And can you describe what you did as a

L.A. REPORTING (312) 419-9292

311

1 claim analyst?

A. Yes.

Q. Please do.

A. I was responsible for the handling of

5 claim files, that would be everything from

6 establishing a file, conducting policy searches,

7 conducting environmental site investigation,

8 reviewing the policies in conjunction with the facts

9 gleaned from site investigations in order to make

10 coverage determination, issuing that coverage

11 determination, whether it would be a determination

12 of no coverage or a determination if indeed there

13 was coverage, and by that I mean whether or not I

14 had to defend the insured in litigation or indemnify

15 the insured in litigation. I also handled what are

16 known as declaratory judgment actions wherein an

17 insured would sue CNA if it did not agree with the

18 coverage position that the company took.

Q. You've reviewed CNA's defense

20 attorneys' fees in that role?

A. That is correct.

Q. You've never reviewed opposing

23 counsel's fees as a claim analyst at CNA; is that

24 correct?

L.A. REPORTING (312) 419-9292

312

A. That's correct.

Q. And do you recall whether any of these

3 cases that you reviewed or claims that you reviewed

4 as a claim analyst were filed with the Pollution

5 Control Board?

A. I can't remember.

Q. Is it fair it to say that none of

8 these cases that you worked on as a claim analyst

9 were enforcement cases?

A. I can't recall.

Q. Is it fair to say that your opinion

12 wouldn't be based on any experience with enforcement

13 cases as a claim analyst then?

A. Can you reread the question?

(Record read as

requested.)

A. Yes, I believe that would be correct.

18 BY MR. PARTEE:

Q. And you were ultimately promoted to

20 claim consultant from claim analyst in about 1983;

21 that's correct?

A. That's correct.

Q. And basically you did the same thing

24 as a claim consultant as a claim analyst?

L.A. REPORTING (312) 419-9292

313

A. That's correct.

Q. And you've been a claim consultant now

3 for the last ten years?

A. That's correct.

Q. Do you recall the last case in which

6 you worked on as a claim consultant that involved

7 violations of the Environmental Protection Act?

MR. JAWGIEL: I am going to object to

the relevance. What is the relevance of the

violations of the Environmental Protection

Act with respect to her opinions.

HEARING OFFICER WEBB: This all goes

to qualifications. I will allow it.

MR. JAWGIEL: I can repeat the

question if you'd like.

THE WITNESS: Please.

17 BY MR. PARTEE:

Q. Do you recall the last case on which

19 you worked as a claim consultant that involved

20 violations of the Environmental Protection Act?

A. Yes.

Q. Which case is that?

A. There is a case entitled People of the

24 State of Illinois vs. Precision Brand Products.

L.A. REPORTING (312) 419-9292

314

Q. And when did you work on that case?

A. I worked on that case from

3 approximately 2003 up until I would say July of this

4 year.

Q. Was it the underlying case that

6 involved violations of the act?

A. I believe so.

Q. And you didn't work on the underlying

9 case, you worked on the insurance case, correct?

A. No -- not -- strike that. I worked on

11 the insurance case. However, I had to make a

12 coverage determination as to whether or not to

13 provide a defense on the underlying case. So in

14 that respect I would have been involved in the

15 underlying case.

Q. Okay. Fair enough. Have you ever

17 been involved in a fee dispute with CNA disputes

18 involving a fee petition?

MR. JAWGIEL: I am going to object to

the form of the question as vague.

MR. PARTEE: I can rephrase.

HEARING OFFICER WEBB: Please.

23 BY MR. PARTEE:

Q. Have you been involved in a dispute at

L.A. REPORTING (312) 419-9292

315

1 CNA involving an opposing party's fee petition?

A. No.

Q. You never negotiated opposing

4 counsel's fees and costs as a claim consultant, have

5 you, either?

MR. JAWGIEL: I am going to object to

the phrase "opposing counsel." I don't know

who opposing counsel are. It's vague.

9 BY MR. PARTEE:

Q. Do you understand what opposing

11 counsel is?

A. Yes.

HEARING OFFICER WEBB: I'll allow the

question.

15 BY MR. PARTEE:

Q. My question is, have you ever

17 negotiated an opposing counsel's fees and costs as a

18 claims consultant at CNA?

A. No.

Q. Do you know if CNA knows whether you

21 are testifying in this case?

MR. JAWGIEL: I'm going to object to

the relevance. What is the relevance of CNA

knowing she's here testifying?

L.A. REPORTING (312) 419-9292

316

HEARING OFFICER WEBB: Sustained.

2 BY MR. PARTEE:

Q. Do you know Joel Sternstein is

4 currently employed by CNA?

A. Yes.

Q. Do you know Joel Sternstein?

A. Yes.

Q. And you are aware that his fees were

9 initially included in your fee petition, correct?

A. Yes.

Q. Do you see any problem or conflict of

12 interest about your testifying in this case?

MR. JAWGIEL: I am going to object to

the relevance. First of all,

Mr. Sternstein's fees have been redacted from

the fee petition because he had been

disqualified.

HEARING OFFICER WEBB: Well, isn't the

question whether she feels she has any

conflict of interest; isn't that the

question?

MR. PARTEE: Correct.

HEARING OFFICER WEBB: I will allow

her to answer the question.

L.A. REPORTING (312) 419-9292

317

A. No.

3 BY MR. PARTEE:

Q. Let me ask some questions about the

5 underlying case on which the People's fee petition

6 is actually based. You've never met the Fredericks

7 before, the respondents before, the Fredericks?

A. That's correct.

Q. You in never visited the site that was

10 the subject of the underlying case?

A. No, I have not.

Q. Other than generally knowing that this

13 case involves contamination or pollution problems,

14 you are not familiar with the issues in the

15 underlying case?

A. That's correct.

Q. You can't recall with any specificity

18 any of the violations alleged in the complaint in

19 the underlying case, correct?

A. That's correct.

Q. In preparing your report in this case,

22 you only glanced at one box of documents in this

23 case; is that correct?

A. I reviewed one box, that's correct.

L.A. REPORTING (312) 419-9292

318

Q. Which documents did you review?

A. I reviewed numerous Board orders. I

3 reviewed the fee petition and cost petition. I

4 reviewed, I believe, the closing arguments and

5 closing rebuttal. Those were just some examples of

6 some of the documents that I reviewed.

Q. Is there a difference between glanced

8 and reviewed?

A. No.

Q. So you had used the word glanced and

11 reviewed interchangeably?

A. Yes.

Q. You don't know how many trial exhibits

14 were used at the trial in the underlying case,

15 correct, other than what you've learned sitting in

16 the room today?

A. That's correct.

Q. And, again, other than what you heard

19 sitting in the room today, you don't know how many

20 witnesses were called in the underlying case?

A. That's correct.

Q. Is it fair to say your opinion in this

23 case wouldn't be based on the number of trial

24 exhibits or witnesses involved in the underlying

L.A. REPORTING (312) 419-9292

319

1 case?

A. That's correct, because that wasn't

3 put into the task descriptions, so I would have no

4 basis of knowing.

Q. And you didn't otherwise review those

6 documents in order to prepare your report?

A. I may have seen those documents. I

8 just cannot recall at this time.

Q. You don't recall what section 42(f) of

10 the Act provides, do you?

A. Not with any specificity, no.

Q. You haven't dealt with section 42(f),

13 and when I say Act, I am talking about the

14 Environmental Protection Act, you haven't dealt with

15 section 42(f) of the Act at CNA; is that correct?

A. That's correct.

Q. Let me ask you about your compensation

18 in this case. You didn't reach any agreement as to

19 your compensation with the respondents before

20 starting working on this case, did you?

A. That's correct.

Q. Is it fair to say that it's your

23 typical business practice to provide free work for

24 colleagues?

L.A. REPORTING (312) 419-9292

320

A. It's not unusual.

Q. When you started working on this case,

3 you in fact were not going to charge for your

4 services; is that correct?

A. That's correct.

Q. But ultimately or later I should say

7 you reached a verbal understanding with Mr. O'Neill

8 that you would be compensated somehow?

A. There's not, per se, a verbal

10 understanding, other than I had stated to

11 Mr. O'Neill that based upon the time that I spent in

12 this case, I may want to charge for my services.

Q. Do you intend to charge for your

14 services?

A. I expect to be compensated.

Q. You don't know how you are going to be

17 compensated yet, correct?

A. That's correct.

Q. Is it fair to say you are just going

20 to leave your compensation up to Mr. O'Neill?

A. Yes.

Q. You were critical of Mitch Cohen

23 spending 104.5 hours preparing for a trial in this

24 case; is that a fair statement?

L.A. REPORTING (312) 419-9292

321

A. I did state that I thought the time

2 was excessive.

Q. Okay. Before you were deposed in this

4 case, you had already spent about 63 hours preparing

5 your expert report in this case; isn't that correct?

A. No, that's not correct.

Q. Well, what's not correct about it?

A. As I stated during my deposition at

9 the time, I had spent that amount of time associated

10 with the case. I could not give you an estimate as

11 to how much time I spent drafting my report.

Q. How do you distinguish between time

13 spent on this case and drafting your report?

A. Drafting my report is drafting my

15 report. I may have had other conversations with

16 Mr. O'Neill during that time frame that would

17 constitute that, that would add to this or be a part

18 of the total hours that I spent.

Q. Well, fair enough. You were only

20 involved in this case in order to create an opinion

21 report and expert report and to testify, correct?

A. That's correct.

Q. And you have spent additional time

24 since, about 63 hours as of your deposition?

L.A. REPORTING (312) 419-9292

322

A. Yes.

Q. You spent how many hours at the

3 deposition?

A. Three hours.

Q. Are you going to bill for your travel

6 time?

A. I recorded my travel time.

8 Mr. O'Neill can decide what he wants to pay me.

Q. Okay. And how many hours have you

10 spent on this case thus far today?

A. Possibly 67 to 68 hours.

Q. How much time have you spent on this

13 case today?

MR. JAWGIEL: Excluding her attendance

at the hearing?

MR. PARTEE: Including your

attendance.

18 BY MR. PARTEE:

Q. How much time have you spent on this

20 case today so far?

A. Well, from 1:00 o'clock until the

22 present, and I met with Mr. O'Neill from

23 11:00 o'clock till 12:00 o'clock.

Q. So can you do the math for me and tell

L.A. REPORTING (312) 419-9292

323

1 me how many hours that represents?

A. I don't have a watch right now.

HEARING OFFICER WEBB: It is 7:30.

A. So 7-1/2 hours plus one hour, 8-1/2

5 hours.

6 BY MR. PARTEE:

Q. 8-1/2 hours so far, and that doesn't

8 include the morning, correct? You spent the morning

9 working on something else, at least prior to

10 11:00 a.m.?

A. That's correct.

Q. So is it fair to say 8-1/2 hours so

13 far, not including the morning?

A. That's correct.

Q. Let me ask you about the timing of you

16 being disclosed as an expert in this case or an

17 opinion witness in this case, as Mr. Jawgiel would

18 prefer, relative to your expert report being

19 disclosed, when were you retained in this case?

A. I believe I was retained approximately

21 six months ago.

Q. When were you first asked to testify

23 in this case?

A. I believe it would have been about the

L.A. REPORTING (312) 419-9292

324

1 same time.

Q. Was there any discussion at about that

3 same time, about six months ago, about preparing an

4 expert report?

A. No.

Q. Did you even think that you would need

7 to prepare an expert report in this case six months

8 ago?

A. No.

Q. At what point were you asked to

11 prepare an expert report in this case?

A. I can't recall with any specificity,

13 and I can't recall what I stated during my

14 deposition, but possibly two months prior to the

15 date that I was to be deposed.

Q. Close enough. And you were not given

17 documentation at any point prior to that to review

18 in order to prepare your expert report, correct?

A. If you could clarify, prior to what

20 time?

Q. Sure. You said that you first had,

22 you were first asked to prepare an expert report

23 about two months prior to your deposition, correct?

A. That's correct.

L.A. REPORTING (312) 419-9292

325

Q. And you were not given documents on

2 the underlying case by respondent's attorneys until

3 that point as well, correct?

A. That is correct.

Q. And even then you didn't ask for the

6 documentation, it was given to you, correct?

A. That is correct.

(People's Exhibit

No. 105 marked.)

10 BY MR. PARTEE:

Q. Take a moment and just review People's

12 105, just so you understand what it is and look up

13 when you are comfortable. And actually for the

14 record, I'll call this People's Group Exhibit 105?

A. Okay.

Q. Take as much time you as want to get

17 comfortable with this representation, but People's

18 Group Exhibit 105 are the responses of the three

19 respondents to the People's interrogatories on the

20 fee petition, and I'd like to draw your attention to

21 the first answer, which is the answer of respondent

22 Edwin Frederick to the -- F-R-E-D-R-E-R-I-C-K -- and

23 I'd like to specifically direct your attention to

24 his answer to interrogatory No. 3, which in pages--

L.A. REPORTING (312) 419-9292

326

1 and the pages aren't numbered -- but it's on the

2 third page beginning on the second page and

3 continuing on to the third page. Did you have any

4 input into this response to People's interrogatory

5 No. 3?

MR. JAWGIEL: I'm going to object to

the relevance. What's the relevance? Isn't

the interrogatory signed by Dave O'Neill; and

there's an attached signature by Edwin

Fredrick. What's the relevance?

MR. PARTEE: I can tell you where I'm

going.

HEARING OFFICER WEBB: Okay, please.

MR. PARTEE: Ms. Stonich was disclosed

as an expert or an opinion witness, excuse

me, in December, on December 5, 2005. More

than a year ago. The record will show that

there were a number of letters from me to

opposing counsel asking for her report, and

respondents waited until the actual day of

her deposition to hand her report over to us.

MR. JAWGIEL: What's the relevance of

this. Is this a motion to compel?

MR. PARTEE: The relevance is that we

L.A. REPORTING (312) 419-9292

327

were materially prejudiced in our ability.

MR. JAWGIEL: Then he should have

brought a motion.

MR. PARTEE: Let me finish.

I've been interrupted all day long, so

just let me finish. And we were materially

prejudiced in our ability to properly prepare

for her deposition, and in turn for today's

hearing, and I just want the record to

reflect, that there's been a lot of

gamesmanship going on here.

HEARING OFFICER WEBB: I'm going to

allow him to ask it.

MR. JAWGIEL: I understand. I don't

understand the relevance.

HEARING OFFICER WEBB: Overruled.

17 BY MR. PARTEE:

Q. Did you have any input into answering

19 No. 3 on behalf of Mr. Frederick? Do you understand

20 the question?

A. Yes, I do. No, I did not.

Q. Do you have any idea what the

23 reference to the opinion witness having not

24 completed her review of materials; is that in

L.A. REPORTING (312) 419-9292

328

1 reference to you?

MR. JAWGIEL: I'm going to object.

She is not the author of the document. I

don't know how she is going to know what that

is in reference to. It's asking an opinion

beyond the scope of her direct examination

and not an opinion that's been disclosed.

MR. PARTEE: I'll withdraw the

question. I can move on.

10 BY MR. PARTEE:

Q. But I do want to know, it's correct

12 you had not been given materials to review in this

13 case as December 5, 2005, correct?

MR. JAWGIEL: The question has been

asked and answered.

HEARING OFFICER WEBB: I am going to

allow you to answer the question.

A. I believe based upon my testimony that

19 I would not have had the materials at the time this

20 was drafted.

21 BY MR. PARTEE:

Q. And you asked Mr. O'Neill at some

23 point more recently when your expert report was due,

24 and he told you October 31, correct?

L.A. REPORTING (312) 419-9292

329

A. That is the time that he gave me, yes.

Q. And you had completed the majority of

3 your report by October 31st?

A. I believe I did, yes.

Q. And you gave your draft report to

6 Mr. O'Neill around October 31st?

A. Yes.

Q. Mr. O'Neill made corrections to your

9 draft report, correct?

A. Not substantive corrections.

Q. But corrections nonetheless?

A. Yes.

Q. And did Mr. O'Neill give you these

14 corrections?

A. Yes.

Q. And when did he give you those

17 corrections?

A. I can't remember the specific date,

19 but it would have been on or around October 31st.

Q. And then you revised your draft report

21 and provided a final report to Mr. O'Neill within a

22 day or two of October 31st, correct?

A. I can't state if it was a final

24 report. I did provide another version of the

L.A. REPORTING (312) 419-9292

330

1 report.

Q. How did you send your revised report

3 to Mr. O'Neill?

A. Typically I was sending versions of my

5 report via e-mail.

Q. So he would have gotten a revised

7 report the same day?

MR. JAWGIEL: I'm going to object.

That's pure speculation. She has no idea

when he would have received the report.

HEARING OFFICER WEBB: Sustained.

12 BY MR. PARTEE:

Q. You sent your final report in this

14 case by e-mail on October 31st, correct?

MR. JAWGIEL: I am going to object,

asked and answered. We have been down this

road.

HEARING OFFICER WEBB: I will allow

it.

A. I sent a version of the report to him

21 on October 31st.

22 BY MR. PARTEE:

Q. The final version of your report?

MR. JAWGIEL: Again, objection, asked

L.A. REPORTING (312) 419-9292

331

and answered.

HEARING OFFICER WEBB: Well, I'm going

to allow it.

A. I don't believe it was the final

5 version.

6 BY MR. PARTEE:

Q. Let me direct your attention to page

8 47 of your deposition transcript. Page 47 line 21:

(READING:) --

And, again, this is my question to

you.

"Q When did he give you his edits?

A On or about October 31st.

Q On about the same day that you

gave the draft report to him" --

MR. JAWGIEL: I am going to object.

That's not impeachment.

MR. PARTEE: I am not done yet.

MR. JAWGIEL: Well, get to the point.

Where is the impeachment?

MR. PARTEE: (READING:)

"A Yes.

Q Then what did you do with his

edits?

L.A. REPORTING (312) 419-9292

332

A I corrected the typographical

errors.

Q When?

A Within a day or two of having

received them.

Q Then did you -- when you said his

edits, did you have a final report?

A Yes.

Q That would have been a day or two

after October 31st which is fair to say the

first few days in November?

A Sometime in November."

MR. JAWGIEL: Again, this is not

impeachment. It's not impeaching.

MR. PARTEE: We are not there yet.

MR. JAWGIEL: Get to the point where

it's impeaching.

MR. PARTEE: Well, I think all of this

is relevant.

HEARING OFFICER WEBB: Yes, if we can.

MR. JAWGIEL: If we can like nip it in

the bud.

MR. PARTEE: It's the next question.

"Q What did you do with the next

L.A. REPORTING (312) 419-9292

333

final report?

A I sent it Mr. O'Neill via e-mail."

3 BY MR. PARTEE:

Q. Did I read that right?

A. Yes.

MR. JAWGIEL: Can you go on:

(READING:)

"Q On what date?

A Within the last week I would say."

You know, this is ridiculous.

MR. PARTEE: You can do that on your

redirect.

MR. JAWGIEL: At the time you let him

go on and on and get to the point where it

clearly shows that she sent him a report a

week or so before her deposition and you

allow this to stand. That's sanctionable.

That's flat out sanctionable.

MR. O'NEILL: That's the third time he

is doing that.

MR. JAWGIEL: For the record to say I

am going to make an offer of proof --

MR. O'NEILL: To mischaracterize a

letter the from HEARING OFFICER WEBB reporter

L.A. REPORTING (312) 419-9292

334

sending the draft of the transcript to our

office.

MR. JAWGIEL: This goes on to read,

page 48, where Mr. Partee left off:

"Q On what date?"

MR. PARTEE: Excuse me. Let the

record reflect --

MR. O'NEILL: I'd like to make a

motion for sanctions.

MR. JAWGIEL: What you did was

sanctionable, Counsel. You are

misrepresenting testimony in this Court.

MR. PARTEE: I object to that.

HEARING OFFICER WEBB: Well,

everybody --

MR. O'NEILL: We will make a motion

for sanctions at this point.

MR. JAWGIEL: Yes, I would make a

motion for sanctions. This is ridiculous.

It is clear from this transcript that this

whole line of questioning for the past 20

minutes is without basis, without foundation.

HEARING OFFICER WEBB: Okay.

Mr. Jawgiel, please make your motion for

L.A. REPORTING (312) 419-9292

335

sanctions in your post-hearing brief, and,

Mr. Partee, please finish making your point.

MR. PARTEE: Sure.

MR. JAWGIEL: If you have one.

5 BY MR. PARTEE:

Q. You completed your report around

7 October 31st?

A. That's a fair statement.

Q. And then your final report, including

10 your signature was not handed to us until the day of

11 your deposition, correct?

MR. JAWGIEL: I am going to object to

foundation. I don't know whether she knew it

was handed to him. I have no idea if she

knows that. That's speculation.

MR. PARTEE: It doesn't matter what

counsel knows. It obviously matters what the

witness knows.

HEARING OFFICER WEBB: Could you

repeat your question, Mr. Partee.

22 BY MR. PARTEE:

Q. My question was, Ms. Stonich, we did

24 not receive a signed copy of your opinion or your

L.A. REPORTING (312) 419-9292

336

1 report in this case until the day of your

2 deposition, correct?

MR. JAWGIEL: I am going to object to

foundation and speculation on the part of the

witness.

HEARING OFFICER WEBB: You may answer,

if you know.

A. I believe that's correct, you did not

9 receive a signed, and I emphasize the word signed,

10 copy until that date.

11 BY MR. PARTEE:

Q. And do you recall when we were given

13 any copy of your expert report?

MR. JAWGIEL: Objection, asks for

speculation.

A. That, I would not know.

HEARING OFFICER WEBB: I am going to

allow it.

19 BY MR. PARTEE:

Q. You don't know?

A. I don't know.

Q. Let me ask you about the substance of

23 your report.

(Short recess taken.)

L.A. REPORTING (312) 419-9292

337

HEARING OFFICER WEBB: We are back on

the record. Mr. Partee, please continue.

MR. PARTEE: Thank you.

4 BY MR. PARTEE:

Q. Let me move on and let me ask you

6 about your report itself. Incidentally, who typed

7 up your report?

A. I typed it.

Q. Your opinion in this case is not based

10 on any Board precedent, correct?

A. No.

Q. And your opinion in this case is not

13 based on any correspondence either, correct?

A. That's correct.

Q. Let me ask you about whether you made

16 any assumptions in your report. For example, you

17 took issue with a certain parking receipt that

18 Mr. Cohen submitted and the fact that the amount of

19 time he recorded for that day didn't equal the

20 amount of time his car was in a parking garage. Do

21 you recall?

A. Yes.

Q. Is it fair to say that you made an

24 assumption that all of the work that Mr. Cohen

L.A. REPORTING (312) 419-9292

338

1 recorded on that day would have been done in the

2 office?

A. That's correct.

Q. You didn't consider that he could have

5 worked from home?

A. No, I did not. No, I did not.

Q. You testified at one point I do

8 believe that the State's fee petition says that no

9 photocopying was done in-house; is that correct?

A. I don't know if I stated that. The

11 fee petition stated that. I believe I stated that

12 my review of the documents indicated that no

13 photocopying had been done in-house.

Q. And which documents supported your

15 opinion on that point?

A. My review of Kinko's bills in

17 conjunction with the tables that summarize the costs

18 that the Attorney General was seeking in this case.

Q. Well, how does the Kinko's bill or the

20 summary of cost tables indicate that we didn't do

21 any in-house copying?

A. You didn't bill for any of it. Maybe

23 you did do some in-house copying, but I didn't see

24 any bills for that or any charges for in-house

L.A. REPORTING (312) 419-9292

339

1 copying.

Q. And in-house copying in your opinion

3 shouldn't have been billed, correct?

A. No, I never stated that.

Q. Can in-house copying be billed?

A. Yes, it can.

Q. You made some assumptions in your

8 report regarding Mr. Cohen's time keeping, correct?

A. Yes.

Q. And you also questioned Mr. Cohen's

11 time keeping in this case; is that fair to say?

A. Yes.

Q. But don't have any basis to question

14 Mr. Cohen's credibility or honest, do you?

MR. JAWGIEL: I am going to object to

questioning his credibility or honesty. Are

you trying to say that Mr. Cohen lied on the

stand today, is that what she is trying to

say, is that what she's trying to ask her?

HEARING OFFICER WEBB: Are you just

asking her for her opinion?

MR. PARTEE: Right.

HEARING OFFICER WEBB: You can give

your opinion.

L.A. REPORTING (312) 419-9292

340

THE WITNESS: Can you repeat the

question?

MR. JAWGIEL: Other than what she's

testified to, other than excess billing and

parking receipts and all the rest of these

things, is that what you are saying?

HEARING OFFICER WEBB: Could you

define the scope of the question as a person

or are you -- why don't you define the scope

of the question.

11 BY MR. PARTEE:

Q. You never met Mr. Cohen before today,

13 correct?

A. No, that's correct, I have not.

MR. PARTEE: I'll move on.

16 BY MR. PARTEE:

Q. You questioned Mr. Cohen's billing his

18 travel time in this case, correct or --I hate to use

19 the word billing so let me rephrase.

You questioned Mr. Cohen recording

21 time in this case, recording travel; is that

22 correct?

A. I questioned him recording his travel

24 time or the travel entries I should say, yes.

L.A. REPORTING (312) 419-9292

341

Q. When Mr. Cohen was traveling in

2 connection with this case, he couldn't have been

3 working on any other case, correct?

A. My understanding is Mr. Cohen was

5 driving, therefore he couldn't be working on any

6 substantive matter while driving a car.

Q. And a law firm would billed for travel

8 time too, correct?

MR. JAWGIEL: I'm going to object to

the form of the question. Under what

circumstances, driving a car locally on an

airplane? She already made that

differentiation in her direct examination so

the form of the question is improper.

MR. PARTEE: It's not a proper

objection.

HEARING OFFICER WEBB: I will allow

it.

A. A firm may or may not bill for travel

20 time. The question is, is it reimbursable or not.

21 In some cases, clients will not reimburse attorneys

22 for travel time. In other cases, they will

23 reimburse for it at a reduced rate, provided that

24 the attorney is working during that travel time.

L.A. REPORTING (312) 419-9292

342

Q. In cases where a law firm, a travel

2 time is reimbursed, that travel time can be billed

3 as high as $150 an hour, correct?

MR. JAWGIEL: I am going to object to

the form of the question and relevance and

foundation.

HEARING OFFICER WEBB: I'll allow the

question.

MR. JAWGIEL: Why it could be billed

that high, what does that mean?

MR. PARTEE: Your objection has been

overruled.

HEARING OFFICER WEBB: Well, are you

asking -- you are asking for her opinion?

MR. PARTEE: Yes.

HEARING OFFICER WEBB: I'll allow you

to give your opinion.

A. It's possible.

19 BY MR. PARTEE:

Q. And you considered various guidelines

21 on time keeping in reading your report?

A. That's correct.

Q. And the guidelines that you considered

24 do not address the situation where a prevailing

L.A. REPORTING (312) 419-9292

343

1 party's fees and costs are assessed against an

2 opposing party, correct?

A. I don't know I ever saw a reference to

4 that in any of the guidelines. Therefore, maybe the

5 guidelines would cover that situation. I simply

6 don't know.

Q. So it's fair to say that your opinion

8 wouldn't be based on any guidelines -- well, strike

9 that.

The guidelines on which you relied

11 are requirements for company's attorneys, but they

12 aren't requirements on the Attorney General's

13 office, correct?

MR. JAWGIEL: I'm going to object to

that question. First of all, what company,

company attorneys? I don't understand what

that phrase means. I think it's vague and

baseless and without foundation.

HEARING OFFICER WEBB: Mr. Partee,

would you rephrase.

MR. PARTEE: Sure. We can ask about a

specific guideline so that there's no

question as to what I'm asking.

24 BY MR. PARTEE:

L.A. REPORTING (312) 419-9292

344

Q. And let's look at, for example, and

2 again I'm referring to Respondent's Exhibit No. 102,

3 one of the guidelines that you considered was

4 Motorola's law department outside counsel

5 guidelines, correct?

A. That's correct.

Q. And that guideline is not a

8 requirement of the Attorney General's office,

9 correct?

A. No.

HEARING OFFICER WEBB: Mr. Partee,

what page were you looking at?

MR. PARTEE: I am on page 2, and it's

somewhere in the middle of the bullet point

list of guidelines.

HEARING OFFICER WEBB: Thank you.

17 BY MR. PARTEE:

Q. Motorola does not use government

19 attorneys as outside counsel, correct?

A. I would assume they don't.

Q. And Motorola's guidelines at least on

22 their face don't apply to government attorneys,

23 correct?

A. On their face, no.

L.A. REPORTING (312) 419-9292

345

Q. And you don't have any information

2 that Motorola has in fact ever applied its

3 guidelines to government attorneys, correct?

A. That's correct. I don't have any such

5 information.

Q. And you are not aware of any case in

7 which the Board has applied any of these guidelines

8 on which you base your report?

A. That's correct, I am not aware of it

10 in any case.

Q. Is it your opinion that the Board's

12 own precedent on fee petitions is trumped by these

13 guidelines in your report?

MR. JAWGIEL: I'm going to object to

the form and foundation of the question and

the term "trumped." I don't know what that

means. It's vague.

HEARING OFFICER WEBB: Could you

rephrase the question.

MR. PARTEE: Sure.

22 BY MR. PARTEE:

Q. Is it your opinion that the Board's

24 own precedent on the Attorney General's fees and

L.A. REPORTING (312) 419-9292

346

1 costs is superceded by any of these guidelines?

A. That's not my opinion.

Q. Let me ask you about your opinion on

4 the rate at which the Attorney General's office

5 should be compensated in this case. Is it fair to

6 say that it is your opinion that unless there's some

7 statute or regulation or guideline or policy that

8 allows an assistant Attorney General to bill a

9 certain amount and that gives notice of that amount,

10 that the Attorney General should only be able to

11 bill what they actually pay their attorneys?

MR. JAWGIEL: I am going to object to

the compound nature of the question. There

were multiple tasks, multiple --

HEARING OFFICER WEBB: That was a

pretty long question, Mr. Partee. Is there

any way we can simplify that?

18 BY MR. PARTEE:

Q. Well, what is your opinion with

20 respect to the amount that the Attorney General

21 should be able to bill for attorney time in this

22 case?

A. Assuming that there's no guidance, the

24 Attorney General in my opinion when it prevails on a

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347

1 case should be able to recoup its costs in

2 prosecuting that case. So if there's no statute,

3 regulation, policy guideline, et cetera, the next

4 best thing would be to base the fees on what it pays

5 its attorneys, because if you based it on anything

6 else, an arbitrary number, $400 an hour or whatever

7 figure you want to choose, and you are paying the

8 attorney less, that would in effect a windfall for

9 the Attorney General's office.

Q. Okay. And what the Attorney General's

11 office actually pays its assistants doesn't include

12 overhead costs, correct?

A. That is correct.

Q. And what sort of overhead costs would

15 the Attorney General's office incur?

A. Utilities, legal liability,

17 maintenance, clerical staff, paralegal staff

18 possibly, items of that nature.

Q. Electronic research costs?

A. Correct.

Q. In-house copying costs?

A. Correct.

Q. Any other types of overhead that the

24 Attorney General would have to pay above and beyond

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348

1 what it pays directly to its attorneys?

A. Perhaps, but I can't recall anything.

3 I can't recall anything specifically, other than

4 those line items that you just mentioned and those

5 that I just mentioned.

Q. And none of those overhead costs that

7 we have just listed would be included in an

8 Assistant Attorney General's compensation in this

9 case, correct?

A. I don't believe it would be.

Q. So what is your opinion with respect

12 to billing that overhead?

A. Well, my opinion is it probably

14 shouldn't be charged unless there's some type of a

15 policy statement when law firms charge an hourly

16 attorney rate that those types of costs are figured

17 into the rates they charge. You as a client have a

18 choice as to which firm you use. If you don't like

19 what a firm is charging per hour, you can go to

20 another firm. Unfortunately with the Attorney

21 General's office, you have no choice in that.

Q. And a firm would build its overhead

23 into its billing rate, correct?

A. Yes, I would assume they would.

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349

Q. But you are not aware of any firm that

2 doesn't build its overhead costs into its attorneys'

3 billing rate?

A. No, I am not.

MR. PARTEE: I have no further

questions.

MR. JAWGIEL: I have some questions.

REDIRECT EXAMINATION

9 BY MR. JAWGIEL:

Q. Ms. Stonich, I want to refer to

11 page -- you have your deposition transcript in front

12 of you -- page 48 of your deposition transcript

13 where Mr. Partee left off. Which was he left off on

14 line 17. I want to go on to line 18 and 19.

Did you give the statement after where

Mr. Partee left off: (READING:)

"Q On what date?

A Within the last week I would say."

Was that your answer?

A. Yes.

Q. And was that referring to within the

22 last week of your deposition?

A. That is correct.

Q. And your deposition was on November

L.A. REPORTING (312) 419-9292

350

1 15, 2006; is that correct?

A. Correct.

Q. And also Mr. Partee asked you a

4 question regarding page 22 of your deposition, I

5 believe it was line 17?

MR. PARTEE: Well, I would just like

to point out for the record that I think that

now you have asked her questions out of

context and you ought to read further on page

49. I just want to point that out. I am not

suggesting that you do it. I want to move

on.

MR. JAWGIEL: Hey, you have a right to

recross. Apparently, you left off there for

my redirect. I mean touché so to speak,

correct?

MR. PARTEE: I am really getting tired

of your snide comments today.

19 By MR. JAWGIEL:

Q. On page 22, you gave an answer of, no,

21 to the question. Are you aware of the circumstances

22 in which the Board would order respondents to pay

23 the Attorney General fees and costs and why did you

24 give that answer in your deposition?

L.A. REPORTING (312) 419-9292

351

A. I simply did not think of a case, the

2 circumstance where they would be awarded fees and

3 costs and that would be when they prevail on a case.

Q. So it's been your understanding since

5 your inception in this case that if the Attorney

6 General prevails in a case, that allows them to get

7 fees, they have a right to petition for the fees?

MR. PARTEE: That's leading.

HEARING OFFICER WEBB: I will allow

it.

A. That's correct.

12 BY MR. JAWGIEL:

Q. Also, are you aware of any Board order

14 that required your report to be given to the

15 Attorney General's office by a certain date?

A. I am not aware of any.

Q. You reviewed some of the Board orders

18 in this case and were you aware of a Board order

19 that set out the discovery schedule with respect to

20 the fee petition?

A. That's correct.

Q. And did that Board order set out the

23 time that the Attorney General's office was to

24 receive your report, a deadline?

L.A. REPORTING (312) 419-9292

352

A. It did not.

MR. JAWGIEL: That's all I have.

HEARING OFFICER WEBB: Anything

further, Mr. Partee?

MR. PARTEE: Can I consult with

counsel for a second.

HEARING OFFICER WEBB: Yes.

MR. PARTEE: We have nothing further.

HEARING OFFICER WEBB: Thank you.

MR. JAWGIEL: Just for a point of

clarification, I want to make sure Exhibit

102 was admitted into evidence.

HEARING OFFICER WEBB: Yes, it was.

MR. JAWGIEL: At this point, we would

incorporate into our case the testimony

provided by Mr. Cohen and Mr. Murphy in the

State's case in chief and then rest.

HEARING OFFICER WEBB: All right.

MR. PARTEE: I'm sorry. What is it

that you are asking?

MR. JAWGIEL: I just incorporated the

testimony of Mr. Cohen.

HEARING OFFICER WEBB: As part of the

record of this case?

L.A. REPORTING (312) 419-9292

353

MR. JAWGIEL: As part of the record in

this case admitted into my case in chief and

then we rest.

HEARING OFFICER WEBB: Okay, yes. Is

anyone making a closing argument or are you

both reserving your closing argument?

MR. JAWGIEL: We are going to reserve

because right now it's just shy of 20 after

8:00 o'clock in the evening, and I think

we've had enough for today.

HEARING OFFICER WEBB: Mr. Partee?

MR. PARTEE: I'm tempted to make a

joke about keeping you here for two hours

but, no.

HEARING OFFICER WEBB: Pursuant to the

Board's order, concurrent briefs are due by

January 19, 2007, or no response or reply

briefs are allowed.

MR. JAWGIEL: I don't mean to

interrupt, what order are you referring to?

HEARING OFFICER WEBB: September 7,

2006.

MR. JAWGIEL: Thank you.

HEARING OFFICER WEBB: The transcript

L.A. REPORTING (312) 419-9292

354

of these proceedings will be available from

HEARING OFFICER WEBB reporter by December

22nd, will be posted on the Board's website.

I will set a public comment deadline for

January 5, 2007, although we are not

expecting any. If we do get any public

comment, must be filed in accordance with

101.628. There are no members of the public

present to make statements in the record, so

I will proceed to make a statement as to the

credibility of witnesses testifying during

this hearing.

Based on my legal judgment and

experience, I find all of the witnesses who

testified to be credible. Anything anyone

else has prior to being adjourned?

MR. JAWGIEL: I want to thank

everybody for their patience, particularly

HEARING OFFICER WEBB reporter.

MR. PARTEE: Likewise.

HEARING OFFICER WEBB: Thank you,

court reporter. At this time, I will

conclude the proceedings and we stand

adjourned, and I thank everyone for their

L.A. REPORTING (312) 419-9292

355

participation.

L.A. REPORTING (312) 419-9292

356

1 STATE OF ILLINOIS )

) SS.

2 COUNTY OF COOK )

DENISE A. ANDRAS, being first duly sworn,

4 on oath says that she is a Certified Shorthand

5 Reporter doing business in the City of Chicago,

6 County of Cook, and State of Illinois.

That she reported in shorthand the

8 proceedings had at the foregoing trial of the above-

9 entitled cause.

And that the foregoing is a true and

11 correct transcript of her shorthand notes so taken

12 as aforesaid and contains all the proceedings had at

13 the said trial.

___________________________

DENISE A. ANDRAS, CSR

CSR NO. 084-0347

17 SUBSCRIBED AND SWORN TO

18 before me this ____ day

19 of _______, A.D., 1996.

21 _______________________

Notary Public

L.A. REPORTING (312) 419-9292