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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACQUES RIVERA,

Plaintiff,

vs.

REYNALDO GUEVARA, et al.,

Defendants.

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Docket No. 12 C 4428

Chicago, Illinois

June 1, 2018

11:00 o'clock a.m.

TRANSCRIPT OF PROCEEDINGS - TELEPHONE STATUS CONFERENCE

BEFORE THE HONORABLE JOAN B. GOTTSCHALL

APPEARANCES:

For the Plaintiff: LOEVY & LOEVY

BY: MR. JONATHAN I. LOEVY

MR. STEVEN E. ART

MR. ANAD SWAMINATHAN

MS. ANNE GOTTSCHALK

311 N. Aberdeen Street, 3rd Floor

Chicago, Illinois 60607

RODERICK MacARTHUR JUSTICE CENTER

NORTHWESTERN UNIVERSITY SCHOOL OF LAW

BY: MR. LOCKE E. BOWMAN, III

375 E. Chicago Avenue

Chicago, Illinois 60611

For the Individual THE SOTOS LAW FIRM

Defendants: BY: MR. JAMES G. SOTOS

MR. JEFFREY N. GIVEN

MS. CAROLINE P. GOLDEN

MR. JOSEPH POLICK

550 E. Devon Avenue, Suite 150

Itasca, Illinois 60143

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APPEARANCES (Continued):

For the Defendant ROCK FUSCO & CONNELLY, LLC

City of Chicago: BY: MS. EILEEN E. ROSEN

MS. CATHERINE M. BARBER

MS. THERESA B. CARNEY

321 N. Clark St., Suite 2200

Chicago, Illinois 60654

For the Defendant LEINENWEBER BARONI & DAFFADA, LLC

Guevara: BY: MR. THOMAS E. LEINENWEBER

MR. JAMES V. DAFFADA

MR. KEVIN ZIBOLSKI

120 N. LaSalle St., Suite 2000

Chicago, Illinois 60602

Transcriber: MS. JOENE HANHARDT

Official Court Reporter

219 S. Dearborn Street, Suite 1744-A

Chicago, Illinois 60604

(312) 435-6874

* * * * * * * * * * * * * * * * * *

PROCEEDINGS RECORDED BY

DIGITAL RECORDING

TRANSCRIPT PRODUCED BY COMPUTER

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THE CLERK: Case No. 12 C 4428, Rivera vs. Guevara.

THE COURT: Hello. Hello.

MR. LOEVY (Via Telephone): Hello.

MS. ROSEN (Via Telephone): Hi.

THE COURT: Okay. Tell me who is on phone.

MR. LOEVY (Via Telephone): Good morning, your Honor,

for the plaintiff's side we have got Steve Art, Anad

Swaminathan, Rachel Brady and Anne Gottschalk and Jon Loevy.

THE COURT: Okay.

MR. LOEVY (Via Telephone): And Locke Bowman, as well.

THE COURT: Say that, again. We have got a court

reporter here and you said that really fast.

MR. LOEVY (Via Telephone): Sorry.

The whole thing, Judge?

THE COURT: Yes.

MR. LOEVY (Via Telephone): Jon Loevy, Anad

Swaminathan, Steve Art, Rachel Brady, Anne Gottschalk and Locke

Bowman for the plaintiff.

THE COURT: Okay.

And for the defense?

MR. SOTOS (Via Telephone): Jim Sotos, Jeff Given,

Carrie Golden and Joe Polick on behalf of the individual

defendants, with the exception of Rey Guevara and Ed Mingey.

MS. ROSEN (Via Telephone): Eileen Rosen -- go ahead.

MR. LEINENWEBER (Via Telephone): For Rey Guevara and

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Ed Mingey, it is Tom Leinenweber, Jim Daffada and Kevin

Zibolski.

THE COURT: Okay.

MS. ROSEN (Via Telephone): And for the City of

Chicago, it is Eileen Rosen, Theresa Carney and Catherine

Barber.

THE COURT: Okay.

Do we know anything more about the condition of Mr.

Rivera than we knew at the time of the e-mail?

MR. LOEVY (Via Telephone): No, your Honor.

THE COURT: Well, let me tell you what concerns me

about all of this.

I have picked out this time for this trial because you

said two weeks. And I certainly do not want a trial that runs

into the 4th of July. And what is now happening is you are

suggesting moving it, so that we are almost certain of either

running into the 4th of July with the trial or even more

disastrous, it seems to me for fairness to whomever -- I cannot

guess -- having the jury deliberating on the 4th of July.

Now, the problem with the 4th of July, besides having

difficulty getting a jury, is I do not know what kind of a

weird jury we are going to get. Because we are not going to

have anybody with kids or vacations or anything.

I just think this is really -- I just do not know.

And I can see starting this a day late, but that does

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not help the plaintiff.

I mean, you are talking about picking a jury on

Wednesday and starting the case the next week.

I mean, you know, happy 4th of July. And, then, what

do we do? We give the jury the week off?

MR. LOEVY (Via Telephone): Well, your Honor, we

firmly and strongly believe that this thing absolutely will

finish before July 4th. And we have as much interest as

everybody else in finishing before July 4th.

THE COURT: Well, you have been saying that from the

beginning, but the City has never even half-way agreed with

you.

MR. LOEVY (Via Telephone): Well, they don't want this

trial, your Honor. I mean, they don't.

We are going to call all of the witnesses and we are

going to finish our case in seven or eight trial days. And

there is not going to be any witnesses left but experts,

basically.

And we are talking about starting on Wednesday and

actually getting the witnesses this week, too, which would mean

we would be darn close to finishing our case by the 15th.

And if it bled over into the week of the 18th, there

is no reason the trial wouldn't finish that week. And,

certainly, that gives you, you know, almost two full weeks for

the defense case and deliberations.

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THE COURT: And what are we going do -- what are we

going to do --

(Brief telephone interruption.)

THE COURT: I am sorry?

MR. LOEVY (Via Telephone): It sounds like we

accidently got somebody's voicemail on there, but I think we

can ignore that.

THE COURT: Okay.

So, what are we going to do if your estimates are

wrong and we find ourselves approaching the 4th of July weekend

without a verdict?

MR. LOEVY (Via Telephone): Well, your Honor, we are

prepared to impose limits on it, you know, that we will commit

to our --

(Brief telephone interruption.)

THE COURT: Hold on a second. This is something

happening on your end, we think.

MR. LOEVY (Via Telephone): It sounds like someone's

voicemail got in.

(Brief telephone interruption.)

THE COURT: Well, shall we start, again? This is

hopeless.

MR. LOEVY (Via Telephone): We can call the Court

back, your Honor.

THE COURT: Okay.

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MR. LOEVY (Via Telephone): Bye.

(Brief pause.)

THE COURT: Hi. Is everyone the same who was here

when we talked the first time -- the same lawyers?

MS. ROSEN (Via Telephone): Yes.

MR. LOEVY (Via Telephone): Yes.

MR. SOTOS (Via Telephone): Yes.

THE COURT: All right.

MR. LOEVY (Via Telephone): Judge, I was saying for

the plaintiffs, that we --

MR. SOTOS (Via Telephone): Judge, this is Jim --

excuse me, Judge. This is Jim Sotos. Can I, at least, apprise

the Court of the defendants' view of this?

THE COURT: Sure.

MR. SOTOS (Via Telephone): Okay.

You know, first of all, I want to say that we are

really -- we are genuinely -- sorry to hear about Mr. Rivera's

health scare. We hope that the next news that he gets is

encouraging.

With respect to the contention that, you know, we

don't want the trial, we have expressed skepticism about

whether the trial can be completed in the time that the

plaintiff is estimating, from the time he said this originally.

It is not about not wanting a trial.

We want a trial as much as anybody. The case is

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six years old. We understand that.

But we have a Pretrial Order in a case that the

plaintiff has set forth that makes it impossible for us to

think that the plaintiff can present his case in a weekand-a-half.

THE COURT: All right.

Let me interrupt because I do not realistically

believe that the plaintiff's estimate can be counted on,

either. It may be. It may not be.

I think we have to agree on some ground rules if we

are going to start when you are talking about.

Now, first of all, I would like to tentatively set

Tuesday as our start date.

We will hear from you on Monday as to what the

doctors -- actually, I am going to provide for you to let us

know over the weekend.

If Mr. Rivera's situation is okay, I do not think we

should wait until Wednesday. I think we should start Tuesday.

If it is not okay, if the doctors are still saying it

is problematic, we can talk about Wednesday. But I think we

ought to do everything we can.

I mean, plenty of people facing something like this

have anxiety and it turns out to be nothing. And we do not

know if that is what we are dealing with or we are dealing with

something more significant.

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So, I think we ought to, at least for current

purposes, believe the best and tentatively talk about picking

this jury on Tuesday.

We can tell our Jury Department by Monday afternoon if

we cannot start on Tuesday and if we need to start on

Wednesday. So, that is the first thing I would say.

The second thing I will say is this: If we get into

the Friday before the 4th of July and are not finished, I think

we need to give this jury the week of the 4th off because the

4th is on a Wednesday. And I do not see any way that we can

require people to be here -- I mean, everybody -- everybody who

has got any kind of life -- is going to be taking that week

off.

And I think we need to be able to tell the jury that

we will not require them to be here the week of the 4th. And

we will go through the Friday before and we will start the

Monday after.

That lets people not worry about the 4th and do what

they need to do in their lives.

And those are the conditions under which I would be

willing to do this.

We would try for the Tuesday. When we get more

medical opinions, we see where we go from there. And if we at

least have an agreement that if the plaintiff's estimate is off

base -- and nobody, nobody, ever is able to plan exactly how

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long the trial is going to take, especially with these complex

issues and the possibility of deliberations -- that we assure

the jury that if they -- I mean, you know, I certainly would

give the jury a choice.

If they want to keep working -- if they are close -- I

do not mind giving them a choice the week before. But I think

we need to tell them now that we will not require them to work

the week of the 4th.

With those conditions, I would be willing to go ahead.

But without those conditions, I do not think we ought to be

starting this case at this point.

MR. LOEVY (Via Telephone): Well, that makes sense to

the plaintiff, your Honor.

And, obviously, we can update everybody as soon as we

know more.

We are supposed to know more tonight, we believe, by

the close of business about his tests.

THE COURT: I --

MR. SOTOS (Via Telephone): Judge, on behalf of the

individual defendants --

THE COURT: This is Mr. Leinenweber, right?

MR. SOTOS (Via Telephone): No.

THE COURT: No?

MR. SOTOS (Via Telephone): No, this is Mr. Sotos,

Judge.

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THE COURT: Oh, Mr. Sotos. Okay.

Thank you.

MR. SOTOS (Via Telephone): I apologize.

So, we have a Pretrial Order that lists twelve

defendants. We have seven or eight experts. We have two

404(b) witnesses which will be talking about other cases. And

if the plaintiff is saying that he is going to finish in a

week-and-a-half, then he -- I know he -- can't be planning to

call all of these people. Because that would be physically

impossible.

So, what we are doing is preparing for these 40 or 45

witnesses. And we think, at a minimum, if this is -- if there

is any realism to this, that we at least have a right to be

apprised of what kind of a case we are going to be defending.

Because if this can get done in the time that he is

saying, we think it makes sense, too. We are not trying to

kick the trial date if it can actually get done.

But, based on the case that we are preparing to

defend, we know that it is impossible.

THE COURT: All right.

Well, I have a very limited amount of power to drop

the plaintiff in boiling oil, to make them make what I think is

a reasonable disclosure. But can you not talk to one another

and do this?

I mean, this is only fair -- that the City and the

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defendants have some idea of what they are going to be expected

to meet.

MR. LOEVY (Via Telephone): Your Honor, absolutely.

And what we told Mr. Sotos -- and we will continue to

tell him -- is that if we started this trial on Friday or even

Wednesday, we would shrink it to fit it.

If we start it on Tuesday, we are only losing one day.

And, so, it shouldn't come as a surprise to the defendants what

case we are trying, because it is the same case we have been

trying for six years.

Even if we start it later in the week and we have to

shrink it to a week-and-a-half, we will tell them how we are

shrinking.

You know, we are going to finish this trial, your

Honor. It is in our -- it is not in our interest to have this

thing go into July.

THE COURT: So, you are saying if we start on Tuesday,

your case is going to -- you are expecting the same three-week

trial we have been talking about; but, if we start on

Wednesday, you are going to shrink it to a week-and-a-half?

MR. LOEVY (Via Telephone): And if we start on Friday,

we would shrink it even more.

We want to finish this trial in June.

THE COURT: Well, you have to communicate with each

other. I do not want to be hearing this kind of thing because,

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you know, there is little I can do about it. It is just basic

fairness -- that the defense understands what they are going to

be dealing with.

MR. LOEVY (Via Telephone): Mr. Sotos and I have been

talking about the other defendants and we are going to continue

talking about the other defendants.

THE COURT: All right.

So, let me tell you, then, we are going to aim for

Tuesday. You are going to give me --

Do you have Marlan's e-mail address?

MR. LOEVY (Via Telephone): That is probably on the

Web site, right? I bet we do.

THE COURT: Well, you know, what? We will get an

e-mail out to you this afternoon with both her e-mail address

and my law clerk Eugene's e-mail address. And as soon as you

know something, please let them know so that they can

communicate it to me. Okay? No. 1.

As I say, if we have to start Wednesday, we will have

to start Wednesday. We are going to go with this, if we can.

At some point, I am not going to want to try this case

in June. But as long as we can get it started pretty soon --

you know, making no commitments -- let's go with it.

MR. LOEVY (Via Telephone): Very good.

THE COURT: Now, the other thing I tell you is I am

going to tell this jury that we expect it to be finished before

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the 4th of July; but, regardless, they will not be expected to

work the week of the 4th of July.

Is that okay with everybody?

MR. LOEVY (Via Telephone): That sounds very

appropriate from the plaintiff's side, your Honor.

MS. ROSEN (Via Telephone): Judge, from the City's

side, I am concerned that if the case runs long, that this jury

is going to fault the defendants because we are going to be in

the defendants' case. So, that is a concern.

THE COURT: Well, I think that is unlikely. And we

can do -- we can do -- whatever we need to do so that does not

happen.

I have never seen a jury be that stupid. And I have

been doing this for a long time.

My guess is --

MR. SOTOS (Via Telephone): Judge, this is Jim Sotos

talking.

Judge, I just want you to know that this happened to

the City last year in a case where, once the plaintiff's case

was over and it was running long, and the judge was pushing it

-- and the jurors were openly perturbed at the length of the

case -- and they did appear to take it out on the defendants.

And that was a very real situation that happened last week.

And that is what Ms. Rosen is talking about.

THE COURT: And how did you --

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MR. SOTOS (Via Telephone): That is a concern.

THE COURT: How do you conclude that they were taking

it out on you, rather than just having you lose?

MR. SOTOS (Via Telephone): Well, it was from the

trial lawyers' reaction to the jury's behavior during the last

week of trial and it was going beyond what was expected.

THE COURT: Well -- okay.

So, tell me how I am supposed to fix that.

MR. SOTOS (Via Telephone): Judge, the problem is we

don't -- we are not seeing how this can realistically get done

with this July 4th date coming. And it just appears to us to

be unworkable, unless we know that the plaintiff -- you know,

it would be one thing if the Court would direct the plaintiff

to -- if the Court would tell the plaintiff -- "I am going to

close your case" on such and such a date.

And if the lawyers are saying, "Well, we don't know

how long the crosses are going to take," that is something the

Court can control and make sure everybody is asking relevant

questions.

But with the uncertainty; and, then, everybody is

manipulating to try and figure out a way to avoid the July 4th

issue, we think that is the only way that that can be avoided.

And if the Court is willing to do that -- and I think

that is within the Court's power -- I do think that it is

workable.

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THE COURT: Well, given --

MR. SOTOS (Via Telephone): The other thing I wanted

to --

THE COURT: Yes. Go ahead.

MR. SOTOS (Via Telephone): I am sorry, Judge. I am

sorry.

THE COURT: No, go ahead.

MR. SOTOS (Via Telephone): I was going to say -- this

is on a little bit of a different issue, but I wanted to raise

with the Court the fact -- so the Court knew this was something

we were planning on doing before any of this happened -- we are

going to be filing later today a motion for a Rule 1292

certification on the reasonable diligence defense because we

believe that is clearly a controlling question of law; and,

that if there is an immediate appeal taken on that, it will

dramatically reduce the likelihood of a second trial, given the

Court's view that that is a matter of first impression.

I am raising it now only because I didn't want the

Court to think --

THE COURT: Yes.

MR. SOTOS (Via Telephone): -- that this is something

we came up with now. We actually had this brief. It has been

prepared. It is being finalized. And this all came up well

before you --

THE COURT: Well, let me just give you -- let me give

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you -- the bad news. I am not going to grant a 1292 -- I will

read your brief, but I do not think I am going to grant a 1292

-- certification requiring a continuance of this trial date.

So, I would suggest --

MR. SOTOS (Via Telephone): Understood.

THE COURT: -- getting it over to me as soon as

possible, so you can get it in front of the Seventh Circuit as

soon as possible. Because if I deny it, you can still go to

them, right?

MR. SOTOS (Via Telephone): You know, what, Judge? I

had not even really thought that through. I am -- I just

wanted the Court to know that that is something we were going

to be filing. And it is completely unrelated to the issue that

came up this morning.

THE COURT: Yes.

I cannot do that at this point. It is just -- this

all came -- I did these motions as quickly as I could, given

the schedule that you all suggested to me. And I am not going

to order a trial continuance because of what I think is -- I

just do not see it is a big enough, important enough issue.

And I have a good idea of how they are going to rule, anyway.

So, otherwise, I would not have done what I did.

But, in any event, that is fine.

MR. SOTOS (Via Telephone): Okay.

THE COURT: And I think your idea of setting limits

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makes a lot of sense, but I think it is really hard for me to

do until I know when we are going to start. Okay?

So, if we start on Tuesday, I think you know how

things are going to go. Nothing has changed from what we have

been talking about forever, except we are starting a day late.

If we start beyond that, I think that the defense

suggestion that we have strict limits probably makes an

enormous amount of sense. Because, otherwise, it is just all

pie in the sky.

So, think about that and be ready to talk about it if

we cannot start on Tuesday.

The other thing I want to -- and I did not hear from

the defense on my proposal on the 4th of July week.

MR. SOTOS (Via Telephone): Judge, we're -- honestly,

Judge, we're just really concerned about stopping the trial for

July 4th and, then, starting, again.

THE COURT: Yes.

And how concerned are you or should you be with what

is going to happen if we do not do that? That is the problem.

I do not want to stop a trial for a week. God only

knows what is going to happen. But I think the alternative is

that somebody is -- somebody's ox is -- going to be gored

because this jury is not going to be want to be here that week.

MR. SOTOS (Via Telephone): Well, Judge, that is why

we think it makes most sense to, you know, try the case in

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August, September or October.

We will do everything we can to make sure everybody is

available and as flexible as possible. We just thinks it makes

a lot more sense.

THE COURT: Okay.

In my heart --

MR. SOTOS (Via Telephone): It's not true that the

defendants don't want a trial.

THE COURT: In my heart of hearts, I would love to say

yes to you, because I agree with you. But I have been

promising everybody this date from the beginning of time. And

starting one day late, to me, does not seem to justify anything

as drastic as throwing out a trial date.

So, you can talk to me, again, about that if we cannot

start on Tuesday. Okay?

MR. LOEVY (Via Telephone): Judge, thanks, again, for

accommodating Mr. Rivera.

THE COURT: Wait. Wait. I have something I want to

talk about.

I have read the Hillman case very closely and thought

about it a lot. And I have to suggest I do not know what the

plaintiff has in mind, but one thing that is not going to

happen at this trial is the torture of the defense witnesses

who are going to take the Fifth.

And I do not know what plaintiff intends to do. You

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certainly have a right to call them to the stand. You have a

right to ask them some questions, so the jury can draw its

inferences that it has to draw. But I really need this to be

limited.

So, we are not going to keep people on the stand for a

day-and-a-half while they take the Fifth. You are going to

need to sort of categorize your questions so that you can ask

them, at some reasonable point -- and I would think probably

spending an hour with these witnesses is probably enough,

although I am a little flexible on that -- at some point asking

them, "If we ask you questions about X, would your answer be

the same?

"If we ask you questions about Y, would your answer be

the same?"

And put it into a couple of categories, so we can get

them on and off. Because, otherwise, I think it is cruel to

the witnesses. And I do not think it is going to do anything

but make the jury uncomfortable.

MR. LOEVY (Via Telephone): Understood, your Honor.

And we agree. And that was our intention.

THE COURT: Okay.

All right. Thank you, everybody. We will be looking

for updated information.

And, then, if we cannot start on Tuesday, we are going

to talk seriously about time limits on Monday. Okay?

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MR. LOEVY (Via Telephone): Thank you.

THE COURT: All right. Thank you.

MR. SOTOS (Via Telephone): Thank you, Judge.

THE COURT: Bye-bye.

MS. ROSEN (Via Telephone): Thank you, Judge.

THE COURT: Bye.

* * * * *

I certify that the foregoing is a correct transcript from the

record of proceedings in the above-entitled matter.

/s/ Joene Hanhardt June 1, 2018

Official Court Reporter

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