Madison County Circuit Judge Nicholas Byron, who once ordered Allstate Insurance attorney Troy Bozarth out of a hearing at the request of the Lakin Law Firm, passed up a chance to do it again.
At a May 29 hearing in a class action against Allstate, Byron denied Brad Lakin's motion to hold a secret hearing on a secret motion.
Lakin wanted Byron to exclude Bozarth from the secret hearing. Byron had done that for the Lakins in the same circumstances in 2002.
That time, after Bozarth departed, Byron approved a request of the Lakins to kick some Chicago attorneys off their class action team.
Although Lakin did not persuade Byron to exclude Bozarth this time, he did persuade Byron to kick Richard Burke off the case.
Burke, who used to work for the Lakins, now teams with Freed & Weiss of Chicago in their bid to control cases they helped the Lakins file.
In April, at a hearing before Circuit Judge Daniel Stack, Burke loosely linked Byron to a federal investigation.
Byron tried to hold his tongue about it at his hearing, but Burke badgered him until he showed his feelings.
Intentionally or not, Burke badgered Byron all morning.
Burke showed up early and took a seat right below Byron's chair.
At 9:30 a.m., Byron emerged from his chambers and asked Burke where everybody was.
The courtroom door opened. Brad Lakin entered with Lakin attorneys Daniel Cohen and Jeffrey Millar.
Attorney Timothy Campbell of Godfrey walked in with them.
Their plaintiff, Dennis Strasen, walked in and sat in the gallery.
Strasen sued Allstate in 1999, claiming the insurer cheated when paying claims for injuries in car crashes.
Byron in 2002 certified Strasen to represent a plaintiff class, though he did not decide how many states to include in the class.
Strasen's attorneys passed Burke and sat at Byron's right hand.
Lakin took the seat nearest Burke, about three feet away from him.
Bozarth perched in the jury box, normally off limits to attorneys.
Maybe Burke had beaten him to his chair of choice. Maybe he wanted some distance from the tension between Lakin and Burke.
Byron told Bozarth to begin.
Cohen jumped and said Burke might intend to speak. He moved to strike an entry of appearance that Burke filed.
Byron said he would hear Bozarth first.
Bozarth said the plaintiff wanted to exclude Allstate from arguments, evidence and determination of a motion.
"My client has every right to be present," Bozarth said.
He said it was a large and important case, larger than Illinois.
"There is a tremendous amount of money at stake," Bozarth said. "We need at least to be present to hear what is said. We don't know what is going to be said. That's why we have a right to be there."
He said the motion might pertain to his motion to decertify the class.
"The cards are face down," Bozarth said.
Millar told Byron the motion related solely to the organization of plaintiff's counsel.
"We are not seeking to resolve this today," Millar said. "We are only seeking to file a pleading today in camera."
He said they were not asking for any determination about Allstate or on the merits of the case.
He said Allstate had no legal interest in the motion.
He said an Illinois Supreme Court rule allows a judge to talk to one party "ex parte," without the other party, for administrative purposes.
"What more administrative purposes could there be than a motion dealing with organization of plaintiff's counsel?" Millar said.
He said the motion concerned highly privileged communications on trial strategy, decertification and potential settlement positions.
Byron said Bozarth's objection was well taken.
He said the motion might affect Allstate.
"We have issues we didn't have seven or eight years ago," Byron said.
He denied the motion for proceedings "in camera."
Then he took up Burke's situation.
Byron said lead counsel for the class was the Lakin Law Firm. He said the participation of others was up to them.
He said he wouldn't get into any controversy or put the cart before the horse.
He said to Lakin, "If you don't want him participating in this case, he's not participating in this case."
Burke asked Byron if he was striking his entry of appearance.
Byron started to answer and said, "What's that other firm's name?"
"Freed and Weiss," Burke said.
Byron said, "I've made my ruling here." He gestured to the Lakin group and said, "They control this case."
Burke protested. Byron said, "I'm not going to get involved in your relationship with this other firm."
Cohen told Byron that Burke entered his appearance not for plaintiffs but for Freed & Weiss.
Byron said, "Anybody can enter an appearance. What does that mean? In this case it doesn't mean anything."
"You are solely responsible for the outcome of these proceedings," Byron said.
Millar asked Byron if they could get a date for a hearing. He said it would not be in camera.
Byron said, "You can file any motion and I'll hear it.
"In this case Allstate has an interest."
Byron said Cohen's motion to strike Burke's entry of appearance was moot.
"It's not my problem," Byron said. "You are responsible for the case. This was the purpose of appointing lead counsel."
He closed the hearing and returned to his chambers. The court reporter turned off her machine.
Strasen and Campbell left the room.
Bozarth stepped down from the jury box and shook Lakin's hand. As they talked they walked to the jury box and sat down.
Cohen, Millar and Burke started drafting an order for Byron to sign.
They started arguing.
Byron returned. Cohen, Millar and Burke approached him.
As the argument continued, Burke pointed at the court reporter. Byron nodded at her. She turned on her machine.
Campbell and Strasen returned.
Bozarth and Lakin watched the spectacle unfold, side by side.
Byron said, "They control this trial and it's not for me to decide."
Cohen asked if the motion to strike was moot. Byron said that was correct.
Burke said they asked him to deny his representation of Freed & Weiss.
Byron said, "I am ruling that you have no part in this lawsuit at this time.
"There may be a time when you represent them."
Burke said, "I represent them now. The Lakin Law Firm doesn't get to decide who represents them. All I'm representing is the lawyers."
Byron said he could appeal.
Burke said there was no ruling to appeal.
Byron said, "You can still appeal a moot point."
Burke said, "How can I appeal it?"
Byron said, "That's not a problem."
Still Burke protested, but Byron stopped him.
He said Burke made statements in front of Stack intimating that federal investigators were looking at the court.
Burke said, "I didn't say that. Someone else told you that?"
Byron said he read it.
Burke asked if he read the transcript.
Byron said, "I may have read it in the Record."
Burke said his statement referred to investigations of the Lakin firm. He said those investigations were a fact.
Byron said, "I thought the paper down the street had it."
Burke said he had the transcript. He said Brad Lakin tried to spin it.
He said, "There was no reference to you of any kind."
Byron read the transcript: "It seems to me that there has been investigations. There's ongoing investigations."
He read: "It may be that to have this kind of dispute separated from the judge who has got the overall jurisdiction of the case could be in the best interest of the circuit."
Burke said, "That has nothing about you."
Byron said, "Maybe I took it improperly."
Burke said, "I think you did."
Byron said, "Otherwise I would make a report to the ARDC."
The initials stand for Attorney Registration and Disciplinary Commission.
Burke said, "Something's going on here."
Byron said rumors were going on.
Burke said he had no ruling to appeal.
Byron said, "I'm ruling right now. I'm not going to determine who he represents."
He said if the Lakin firm gets a big fee from the case, at that point it might be an issue.
"First of all, I'm not sure this case may survive a motion for decertification," Byron said.
Cohen said, "We understand."
Byron said, "So I don't know what the hubbub is all about."
He closed the hearing, this time for good.