### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 20

‐ 2656

K ATHERINE B LACK

, Plaintiff

‐ Appellant

,

v.

C HERIE W RIGLEY and P AMELA K ERR

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 17 C 101

— Matthew F. Kennelly

, Judge

.

____________________

A RGUED A PRIL 15, 2021

— D ECIDED M AY 10, 2021

____________________

Before K ANNE

, R OVNER

, and H AMILTON

, Circuit Judges

.

K ANNE

, Circuit Judge

. Katherine Black sued two defend

‐

ants for defamation and intentional in fl iction of emotional

distress. Ultimately, the trial did not go as Katherine had

hoped, and the jury rejected her claims.

Katherine now argues that her trial was riddled with er

‐

rors and asks that we overturn the jury’s ve rdict for several

reasons. However, our analysis discloses no errors warranting2 No. 20

‐ 2656

a reversal, and therefore, Katherine’s request for a new trial is

denied.

I. B ACKGROUND

Plainti ff Katherine Black 1 and her husband Bernard are

professors at Northwestern University Pri tz ker School of

Law. In 2012, Bernard’s mother passed away and left behind

a roughly $3 million estate. The Blacks expected to inherit

about one

‐ third of that estate, but it turns out that Bernard’s

mother cut them out of her will and left virt ually the entire

estate to Bernard’s homeless and mentally ill sister, Joanne,

who lived in Denver. So in late 2012, Bernard had himself ap

‐ pointed Joanne’s conservator and then worked to redirect

much of her inheritance to himself and Katherine.

Meanwhile, Bernard’s cousin, Defendant Cherie Wrigley,

sought to locate Joanne and contacted Esaun Pinto—Joanne’s

friend and a private investigator—to fi nd her. Pinto was suc

‐

cessful.

Joanne relocated to New York in 2013. Upon her return,

Bernard fi led suit in New York state court seeking to be ap

‐ pointed guardian of Joanne’s property. Wrigley fi led a cross

‐ petition to be appointed Joanne’s guardian inst ead.

Back in Denver, Joanne’s guardian ad litem

, Gayle Young,

discovered that Bernard had diverted much of Joanne’s inher

‐

itance to himself. As a result, Young hired Defendant Pamela

Kerr, a forensic accountant, to investigate Bernard as well as

Pinto. Pinto served as Joanne’s representative pay ee and had

been withdrawing funds from her account.

1 Katherine also goes by the last name Litvak.No. 20

‐ 2656 3

On April 2, 2015, the Denver probate court held a hearing

that became contentious and, that day, entered an order sus

‐ pending Bernard as Joanne’s conservator and stating that

“Pinto shall provide a complete accounting with documenta

‐

tion of all funds that were held under his control to Ms. Kerr”

so that she could inve stigate.

The hearing stoked tensions; afterward, Wrigley allegedly

said to Katherine, “you, you, you need a sex change opera

‐

tion. And I will arrange this for you, whether you want it or

not.” Wrigley then allegedly confronted Katherine at the air

‐

port and threatened to fi le a false report with child services to

have her children taken away.

The Denver probate court ultimately resolved the dispute

against Bernard and found that he commi tt ed civil theft by

stealing $1.5 million from Joanne. After trebling damages un

‐

der Colorado law, the court entered a $4.5 million judgment,

which was a ffi rmed on appeal. See Black v. Black

, 422 P.3d 592

(Colo. App. 2018).

The New York guardianship proceedings continued. On

January 7, 2016, Katherine submi tt ed a twenty

‐ three

‐ page let

‐

ter to the New York court laying out her contentions regard

‐ ing Joanne and the Denver probate case. Katherine’s le tt er

bore a Northwestern University le tt erhead and, among other

things, alleged “theft and misappropriation of Joanne’s assets

by Pinto” and asserted that “the Colorado Judge Found those

Allegations credible Enough to Authorize an Investigation of

Pinto’s Conduct by a Forensic Accountant.”

Soon afterward, Wrigley called the deans of Northwest

‐

ern’s law and business schools (Bernard worked in both) to

complain that Katherine had used Northwestern le tt erhead to4 No. 20

‐ 2656

make a false statement to the court. Kerr also called the law

‐

school dean and sent a draft le tt er to Wrigley that she had pre

‐ pared for the dean. In pertinent part, Kerr’s le tt er quoted the

above portion of Katherine’s le tt er and asserted that this claim

was “100% false” and “completely false.”

Kerr did not send this le tt er to Northwestern. But Wrigley

thought she had, so Wrigley a tt ached it to an ethics complaint

that she then submi tt ed to Northwestern. Wrigley’s com

‐ plaint also asserted that Katherine was “using [Northwest

‐

ern’s] le tt erhead to slander people and fi ght a personal case.”

On January 6, 2017, Katherine sued Wrigley and Kerr in

federal district court in Chicago. She brought claims against

both of them for defamation (based on the various statements

submi tt ed to Northwestern) and against Wrigley for inten

‐

tional in fl iction of emotional distress (based on the threats she

had allegedly made to Katherine). 2

Trial began in August 2019 and lasted about a week. Noth

‐ ing went as Katherine had hoped—especially on Friday,

which was supposed to be the day of closing arguments,

when Katherine’s trial counsel, Donald Homyk, informed the

court that he had just “been advised by [Katherine] that she

elects to present her own closing argument.” The court denied

the request because Kathe rine was “not a pro se litigant” and

was “represented by counsel.” Katherine asked if she could

“ fi re [her] counsel now,” to which the court responded, “That

would be what I call gamesmanship.

... So the answer is no.”

2 Katherine also sued Melissa Cohenson and her law firm, Brian A.

Raphan, P.C., who represented Wrigley in the New York court proceed

‐ ings. Those claims, and other claims against Wrigley and Kerr, were dis

‐

missed and are not relevant to this appeal.No. 20

‐ 2656 5

After a break, Homyk asked the court to reconsider its rul

‐ ing and also asked “for an emergency motion to continue the

closing arguments until Monday morning.” He represented

that if the court granted the continuance, he, not Katherine,

would give the closing. The court denied the motion to recon

‐

sider, reiterating its belief that Katherine wa s a tt empting “to

manipulate the proceeding.”

Homyk again asked for a continuance until Monday and

said, “I guess set me up for malpractice. Whatever.

... I really

don’t care anymore, Judge.” He said he knew he could “pull

[it] together

... by Monday” but was “not emotionally ready

to do this right now.”

The court assured Homyk that he had “done a more than

competent job” during trial. Then the court addressed Kathe

‐

rine directly and explained that it could not “trust [her] to fol

‐

low the rules” based on her performance as a witness, during

which she repeatedly violated the court’s instructions not to

volunteer information inappropri ately. 3

Katherine promised the court that if the case were contin

‐

ued to Monday, she “will not represent [her]self.” But then

she indicated that she might bring in a di ff erent lawyer, and

the court responded, “This is why I’m not continuing the clos

‐ ing argument.

... The request is denied. We are starting the

closing arguments in ten minutes.”

3 Katherine had at least one outburst in court, as well, which caused

the court to admonish her: “What just happened here

... this will not hap

‐

pen again. If it happens again, you will be held in contempt of court. It is

not appropriate. You have a lawyer. You chose to have a law y er. You

chose to have several lawyers. You are not representing yourself. Do you

understand what I’m telling you?”6 No. 20

‐ 2656

Then things escalated further, when Homyk implored:

I need to put this on the record right now, Judge. I’m

physically ill right now.

... I’m physically unable to

continue with the closing argument today.

... I’ll tell

you, Judge. Hold me in contempt. I’m physically ill

right now. I am. I’m sorry. I hate to say that in fr ont

of a courtroom full of people. I can’t do it right now.

I will for sure be able to do it on Monday.

The experienced trial judge again, however, exercised a

helpful degree of patience, relented, and continued closing ar

‐

guments until Monday. But he appropriately added a stern

warning that if Homyk did not appear, “a warrant is going to

be issued to hold you in contempt.

... [T]here’s going to be

hell to pay

... if something goes wrong between no w and

then.”

True to his word, Homyk showed up on Monday and fi n

‐

ished the trial. Still, the jury rejected Katherine’s claims and

returned a verdict for Defendants. Katherine appeals pro se

(evidently having dispensed with Homyk) and presents no

shortage of issues for us to resolve.

II. A NALYSIS

Katherine maintains that the district court erred in several

ways: fi rst, by excluding numerous pieces of evidence that

should have been admi tt ed; second, by allowing improper

statements by defense counsel in closing argument; third, by

declining to give a jury instruction on one of her defamation

claims; and fourth, by denying Katherine’s request to give her

own closing argument, or hire new counsel to do so, after her

lead lawyer su ff ered some sort of breakdown after the close

of evidence. We address these asserted errors in turn.No. 20

‐ 2656 7

A. Evidentiary Decisions

Katherine argues that the district court erred in excluding

six pieces of evidence. Such evidentiary decisions are nor

‐ mally reviewed for abuse of discretion. Fields v. City of Chicago

,

981 F.3d 534, 543 (7th Cir. 2020) (citing Lewis v. City of Chi. Po

‐

lice Dep’t

, 590 F.3d 427, 440 (7th Cir

. 2009)). But if there were

no objections to a district court’s decisions at trial, we may re

‐

view only for plain error, under which one must show

“(1) that exceptional circumstances exist, (2) that substantial

rights are a ff ected, and (3) that a miscarriage of justice will

result if the [plain

‐ error] doctrine is not applied.” Stringel v.

Methodist Hosp. of Ind., Inc.

, 89 F.3d 415, 421 (7th Cir. 1996)

(quoting Prymer v. Ogden

, 29 F.3d 1208, 1214 (7th Cir. 1994)).

First, Katherine claims that the district court erred by ad

‐

mi tt ing the wrong portion of her January 7, 2016 le tt er to the

New Yor k court. She contends that the court should have ad

‐

mi tt ed the portion of the le tt er stating that “the Colorado

Judge Found those Allegations credible Enough to Authorize

an Investigation of Pinto’s Conduct by a Forensic Ac count

‐

ant.” This is the statement that Kerr’s le tt er later called “100%

false” and “completely false” (which are, in turn, the alleged

defamatory statements). Instead, the court admi tt ed a passage

of the le tt er that Katherine argues was materially di ff erent

and gave Defendants room to argue that the allegedly defam

‐

atory statements were true. 4

4 The separate but similar passage admitted at trial stated, “The Colo

‐

rado court found allegations of Pinto’s misconduct sufficiently credible

and troublesome to order an investigation of Pinto by the court

‐ appointed

forensic accountant, Pamela Kerr.”8 No. 20

‐ 2656

“As we have noted in the past, ‘a party cannot complain of

errors which it has commi tt ed, invited, induced the court to

make, or to which it consented.’” Sanchez v. City of Chicago

, 880

F.3d 349, 360 (7th Cir. 2018) (quoting Int’l Travelers Cheque Co.

v. BankAmerica Corp.

, 660 F.2d 215, 224 (7th Cir. 1981)). And a

deferential, line

‐ by

‐ line reading of the transcript here sh ows

that Katherine’s a tt orney consented to the inclusion of the lan

‐

guage that was admi tt ed at trial.

The portion of Katherine’s le tt er that the court admi tt ed

began on the bo tt om of page 17 and carried over to the top of

page 18. (The passage that Katherine argues should have been

admi tt ed was in the middle of page 17.) At trial, the court

asked Katherine’s lawyer, Homyk, what part of the le tt er

should come in. Homyk answered, “page 22, at the bo tt om,”

before realizing that he was mistakenly reading the docu

‐

ment’s Bates number. Defense counsel corrected him: “17,

your Honor.” The court responded, “Okay. So it’s the

... car

‐

ryover paragraph at the bo tt om of page 17 and the top of page

18 of the le tt er by the plainti ff on the 7th of January. Is that

what you’ re saying?” Defense counsel replied, “Correct,” and

Homyk said nothing. Moments later, the court reiterated its

understanding that both parties agreed “that the carryover

paragraph at the bo tt om of page 17 and the top of page 18

should come in. That’s fi ne.” Homyk again did not object.

Homyk’s acquiescence to the court’s decision is con fi rmed

by an exhibit that he later submi tt ed—a redacted version of

the le tt er showing only the passage that Katherine now claims

is incorrect. We therefore fi nd that Katherine, through Ho

‐ myk, consented to the court’s admission, so we do not fi nd

plain error.No. 20

‐ 2656 9

Second, Katherine sought to introduce parts of the tran

‐ script from the April 2, 2015 Denver probate court hearing,

but the district court excluded the transcript in part because it

was “unnecessarily cumulative in a way that signi fi cantly out

‐ weighs its probative value.” In particular, the portions of the

transcript th at Katherine wanted admi tt ed provided infor

‐

mation that was already contained in the Denver court’s April

2, 2015 order, which was admi tt ed at trial. We see no abuse of

discretion in that decision.

Third, Katherine says that the district court erred by ex

‐ cluding certain emails between Kerr and Bernard, which

would have shown that Kerr knew her statements were false.

The emails Katherine discusses in her brief were included at

trial, but assuming she’s referring to the emails that were ac

‐ tually excluded, we do not see how the district court abused

its discretion; the court explained that Kerr already testi fi ed

about her speci fi c communications with Bernard and that

Katherine already established all she could have hoped to es

‐

tablish from the emails.

Fourth, Katherine sought to introduce several documents

from the New York guardianship proceedings, including a

temporary restraining order entered against Wrigley based

on her supposed threats to Katherine. The district court ex

‐

cluded this evidence as “highly and unfairly prejudicial be

‐

cause the jury would understand it as some sort of third

‐ party

judicial con fi rmation of the accuracy of the allegations in this

case, which would have been misleading.” There was no

abuse of discretion in this conclusion.

Fifth, Katherine moved to introduce under Federal Rule of

Evidence 803 a memo purportedly wri tt en by a Northwestern

administrator. The court excluded this memo as inadmissible10 No. 20

‐ 2656

hearsay. On appeal, Katherine makes the entirely new argu

‐

ment that the document was admissible under Rule

801(d)(1)(B) to rebut a recent charge of fabrication. That argu

‐

ment is forfeited, “and we decline to exercise our discretion to

review further because [Katherine] has not cleared the high

bar of plain error by showing extraordinary circumstances re

‐ sulting in a miscarriage of justice.” Wal ker v. Groot

, 867 F.3d

799, 807 (7th Cir. 2017).

Finally, Katherine claims that she sought to introduce evi

‐

dence to show that Wrigley lied under oath, including

Wrigley’s deposition transcript and a privilege log from sep

‐

arate litigation. But she nev er a tt empted to use or introduce

the privilege log at trial, and she only sought to use the depo

‐

sition after her last witness testi fi ed. In any event, the court

thoroughly explained after trial that the deposition transcript

was unfairly prejudicial, “did not go to the merits of any of

the claims against Wrigley,” and “would not reasonably lead

to the inference that Wrigley commi tt ed perjury in this case.”

There was no error, let alone plain error, in these conclusions.

We therefore conclude that none of the district court’s ev

‐ identiary decisions warrants a new trial. 5

5 Katherine also argues that the cumulative effect of the district court’s

evidentiary errors warrants a new trial. That argument was forfeited in

the district court. Regardless, it cannot succeed given our above conclu

‐

sions. See Christmas v. City of Chicago, 682 F.3d 632, 643 (7th Cir. 2012) (re

‐ quiring “multiple errors” tha t “were so severe as to have rendered [the]

trial fundamentally unfair” (quoting United States v. Powell

, 652 F.3d 702,

706 (7th Cir. 2011)).No. 20

‐ 2656 11

B. Statements at Closing Argument

Katherine’s next argument for a new trial concerns alleg

‐ edly improper statements that defense counsel made during

closing arguments.

“[T]he ‘district court has considerable discretion in super

‐ vising the arguments of counsel, and we will reverse a verdict

only where the court has abused that discretion.’ ” Jones v. Lin

‐

coln Elec. Co.

, 188 F.3d 709, 730 (7th Cir. 1999) (quoting Trytko

v. Hubbell, Inc.

, 28 F.3d 715, 727 (7th Cir. 1994)). “To warrant a

new trial, ‘[s]tatements made during closing argument must

be plainly unwarranted and clearly injurious to constitute re

‐

versible error.’” Id. (alteration in original) (quoting Gruca v.

Alpha Therapeutic Corp.

, 51 F.3d 638, 644 (7th Cir. 1995)). No

surprise, then, that “improper comments during closing argu

‐

ment rarely rise to the level of reversible error.” Id. (quoting

Probus v. K

‐ Mart, Inc.

, 794 F.2d 1207, 1210 (7th Cir. 1986)).

What’s more, when a party in a civil case fails to object to

improper statements in closing argument, we have stead

‐ fastly refused to review even for plain error. Ka fk a v. Truck Ins.

Exch.

, 19 F.3d 383, 385 (7th Cir. 1994) (“[N]o plain error doc

‐

trine exists [in civil cases] to remedy errors which are alleged

to have occurred during closing argument.” (alteration in

original) (quoting Deppe v. Tripp

, 863 F.2d 1356, 1364 (7th Cir.

1988))). Katherine concedes that she objected to only one

statement during the defense’s closing argument, so that’s the

only statement we discuss, and the rest are wai ved. See Soltys

v. Costello

, 520 F.3d 737, 745 (7th Cir. 2008).

Katherine objected that defense counsel “lied” when he ar

‐ gued in closing that Katherine “invented another wrongdoer

to de fl ect a tt ention from Bernard Black. That’s poor Mr. Esaun12 No. 20

‐ 2656

Pinto.” The court overruled the objection because defense

counsel “was suggesting an inference based on the evidence,

which a tt orneys have leeway to do in their closing argument.”

We agree with the district court. “A tt orneys have

... lee

‐

way in closing arguments to suggest inferences based on the

evidence, highli ght weaknesses in the opponent’s case, and

emphasize strengths in their own case.” Id. (citing Jones

, 188

F.3d at 731). What one invested litigant might call a lie, an im

‐ partial observer might call a permissible inference based on

the evidence. Moreover, the court instructed the jury that

“closing arguments

... are not evidence,” and “[i]f the evi

‐

dence as you reme mber it di ff ers from what the lawyers said,

your memory is what counts.” “We have repeatedly found

that jury instructions of this sort mitigate any prejudicial ef

‐

fect of potentially improper remarks made by counsel during

closing argument.” Jones

, 188 F.3d at 732.

Therefore, the district court did not abuse its discretion in

overruling Katherine’s objection.

C. Jury Instructions

Katherine next argues that the district court erred by omit

‐ ting a jury instruction on her defamation claim against

Wrigley. Once again, Katherine never objected to the court’s

“failure to give an instruction.” Fed. R. Civ. P. 51(d)(1)(B).

Thus, we “may consider a plain error [only] if the error a ff ects

substantial rights.” Id. 51(d)(2); see McLaughlin v. State Farm

Mut. Auto. Ins. Co.

, 30 F.3d 861, 868 (7th Cir. 1994).

We agree that Katherine was likely entitled to an instru c

‐

tion on her defamation claim against Wrigley. Based on the

complete record, we cannot agree with Defendants that Kath

‐

erine dismissed that claim before trial. Although Katherine’sNo. 20

‐ 2656 13

a tt orney at fi rst represented to the court that they “d[id] not

intend to pursue the defamation claim against Wrigley at

trial,” leaving only the intentional in fl iction of emotional dis

‐

tress claim, he then fi led a motion (pursuant to the court’s re

‐ quest) speci fi cally seeking dismissal of only the “defamation

claim for Cherie Wrigle y’s statement about ‘slander ’” (emphasis

added). That motion made clear that “Katherine continues to

allege

... that Wrigley’s action in uploading to

... Northwest

‐

ern

... Kerr[’s] defamatory le tt er constitutes defamation per se

as to both Kerr, who wrote the le tt er, and Wrigley, who uploaded

the le tt er to No rthwestern University ” (emphasis added).

The court granted the motion, and afterward, Defendants

submi tt ed revised jury instructions to “account for the latest

changes in the contours of the case following the dismissal of

one of the defamation claims against Ms. Wrigley” (emphases

added). Sure enough, Defendants pro ff ered an instruction on

the defamation claim against Wrigley based on the le tt er to

Northwestern.

It thus appears that Katherine’s defamation claim against

Wrigley based on the “100% false” and “completely false”

statements simply fell through the cracks. She had good rea

‐

son to expect an instruction on it, such as the one Defend ants

themselves submi tt ed. It is therefore possible that the district

court commi tt ed plain error by omi tt ing an instruction on that

claim and by omi tt ing the claim from the verdict form.

Despite all this, even if “the district court clearly erred by

[omi tt ing the] instruction, we fi nd that [Katherine] has not

met [her ] ‘burden of establishing that the error a ff ected sub

‐

stantial rights, i.e., that the outcome probably would have

been di ff erent without the error.’” Prod. Specialties Grp., Inc. v.

Minsor Sys., Inc.

, 513 F.3d 695, 700 (7th Cir. 2008) (quoting14 No. 20

‐ 2656

United States v. Pree

, 408 F.3d 855, 869 (7th Cir. 2005)).

“[W]here appellants cannot articulate how they were a ff ected

by the refused jury instruction, let alone how their ‘substantial

rights’ were a ff ected, there is no reason for this court to inter

‐

fere” with the jury’s verdict. Con sumer Prod. Rsch. & Design,

Inc. v. Jensen

, 572 F.3d 436, 440 (7th Cir. 2009) (citing Ammons–

Lewis v. Metro. Water Reclamation Dist. of Greater Chi.

, 488 F.3d

739, 751 (7th Cir. 2007); Higbee v. Sentry Ins. Co.

, 440 F.3d 408,

409 (7th Cir. 2006)).

Given the evidence and arguments presented at trial, plus

the jury’s v erdict in favor of Defendants on every one of Kath

‐

erine’s claims, “[w]e conclude that the jury probably would

have found” for Wrigley “even if it had been [properly] in

‐

structed.” Prod. Specialties Grp., Inc.

, 513 F.3d at 700

. Most tell

‐ ingly, the jury found that Kerr did not commit defamation in

making the exact same statements that formed the basis of the

defamation claim against Wrigley. Katherine does not persua

‐ sively explain how or why the same jury probably would

have come to a diametrically opposite conclusion on the def

‐

amation claim against Wrigley. After all, the main issue of the

case, as presented to the jury by both the plainti ff and the de

‐

fense, was whether the allegedly defamatory statements were

true or false. 6 Defendants’ argument that the statements were

true evidently succeeded as to Kerr, and there is no reason to

suspect that it would have failed as to Wrigley, as both claims

were based on the same statements.

6 Katherine’s attorney, for example, argued to the jury that “the only

issue for you to decide is whether it was a hundred percent false that

...

Kerr

... was authorized to conduct any investigation of Pinto.” The de

‐

fense argued: “[T]he main issue in this case

... is, is this statement th at

[Katherine] ma de to [the New York court] true or false?”No. 20

‐ 2656 15

In sum, Katherine falls short of showing that any error the

court may have commi tt ed in its instructions a ff ected her sub

‐

stantial rights. She thus fails to show that the omi tt ed jury in

‐

struction requires reversal under plain

‐ error review.

D. A tt orney Incapacity

Finally, Katherine argues that the district court erred by

refusing her requests to allow her either to present closing ar

‐

guments herself or to hire a new a tt orney after her trial coun

‐

sel, Homyk, su ff ered what Katherine calls “an unexpected, se

‐

vere collapse of cognitive function.”

We note initially that some of Katherine’s argument

sounds in ine ff ective assistance; she complains about Ho

‐ myk’s lack of preparation and general failure to represent her

e ff ectively at trial. But “civil litigants have no constitutional

right to

... e ff ective assistance of counsel,” so such arguments

form no basis to reverse a jury’s verdict in a civil case. Stroe v.

I.N.S.

, 256 F.3d 498, 500 (7th Cir. 2001) (citing, among other

cases, Anderson v. Cowan

, 227 F.3d 893, 901 (7th Cir. 2000)). In

‐

stead, “[w]hen lawyers fail, the remedy is malpractice litiga

‐

tion against the wrongdoer, not more litigation against an in

‐

nocent adve rsary in the original litigation.” Choice Hotels Int’l,

Inc. v. Grover

, 792 F.3d 753, 754 (7th Cir. 2015); see also Cavoto

v. Hayes

, 634 F.3d 921, 924 (7th Cir. 2011) (“A retrial is not a

proper remedy for de fi cient representation in a civil action.”).

As we said in DeSilva v. DiLeonardi

, “[l]itigants who hire

their own counsel in civil cases may not point to their lawyers’

ga ff es as reasons to rerun the litigation.” 181 F.3d 865, 869 (7th

Cir. 1999). Katherine acknowledges DeSilva but argues that its

reasoning does not apply here because Homyk was e ff ectively

“foisted on [her ] by the” court, id.

, when it refused her16 No. 20

‐ 2656

requests to allow her either to present closing arguments her

‐

self or to hire a new a tt orney. That’s not how we see things.

Refusing to allow a troublesome litigant to terminate her re

‐

tained counsel the day of closing arguments is not “foisting”

an a tt orney upon her. To say otherwise assumes that litigants

have unfe tt ered freedom to hire and fi re and swap and drop

a tt orneys at will in the middle of a trial. That is plainly not so;

courts have wide discretion to manage the withdrawal and

appearance of a tt orneys during proceedings. See N.D. Ill. L. R.

83.17 (“The attorn ey of record may not withdraw, nor may

any other attorney file an appearance

... , without first obtain

‐ ing leave of court

... .”).

Likewise, courts have “[b]road discretion

... to control

closing arguments.” Empress Casino Joliet Corp. v. Balmoral Rac

‐ ing Club, Inc.

, 831 F.3d 815, 836 (7th Cir. 2016) (quoting United

States v. Sands

, 815 F.3d 1057, 1063 (7th Cir. 2015)). And alt

‐ hough civil litigants, like criminal defendants, have a statu

‐

tory right to proceed pro se

, 28 U.S.C. § 1654, that right is “not

absolute,” and “after trial has begun[,] the grant or denial of

the right to proceed [p]ro se rests within the sound discretion

of the trial court,” United States v. Lawrence

, 605 F.2d 1321, 1324

(4th Cir. 1979) (citing United States v. Dunlap

, 577 F.2d 867, 868

(4th Cir. 1978)).

All these principles merge with signi fi cant force here,

where the district court had good reason to suspect that Kath

‐

erine would not follow the rules and was a tt empting to ma

‐ nipulate the proceedings. See United States v. Dougherty

, 473

F.2d 1113, 1124 (D.C. Cir. 1972) (explaining that courts may

refuse pro se representation “after trial has begun” when the

litigant engages in “disruptive behavior”).No. 20

‐ 2656 17

The bulk of Katherine’s argument, however, focuses not

on Homyk’s mistakes, as such, but on his alleged “incapac

‐ ity.” And we grant that Homyk su ff ered some sort of break

‐

down on Friday and fl atly refused to give a closing argument

on pain of contempt. But his request for a continuance wa s

granted, and he capably gave his argument on Monday. So

it’s not quite clear to us how Homyk’s temporary “incapacity”

on Friday had any e ff ect on his performance over the four pre

‐ ceding days or the next week. And we don’t see how Kathe

‐

rine’s hiring a new lawyer for cl osing argument or doing it

herself would have cured Homyk’s alleged errors, most of

which occurred before she even made her requests.

Katherine does fault the court for prohibiting Homyk from

fi ling “any new motions” before Monday, and she alleges that

that caused her prejudice because Homyk refused to fi le mo

‐

tions that she requested. But the court only barred “any mo

‐

tions over the weekend

... to terminate Mr. Homyk’s services,

withdraw him from the record, anything like that ” (emphasis

added). To the extent Homyk misunderstood the court’s in

‐

struction as precluding him from fi ling any motions whatso

‐

ever, that’s an issue Katherine must take up with Homy k, not

this court: “If a party’s lawyer is guilty of professional mal

‐ practice (and mental illness is not a defense to

... professional

malpractice), the party has a remedy against him, but it [can

‐

not] shift the burden of its agent’s neglect to the district court

and the defendants.” Tango Music, LLC v. DeadQuick Music,

Inc.

, 348 F.3d 244, 247 (7th Cir. 2003) (citations omi tt ed) (citing,

among other authorities, Restatement (Second) of Torts

§ 283C (Am. L. Inst. 1979)).

Moreover, even assuming an a tt orney’s incapacity could

ever ju stify a new trial in a civil case, Katherine fails to18 No. 20

‐ 2656

mention that she had two lawyers. We have previously ex

‐ plained that “[t]he physical incapacity of one of the two law

‐

yers representing plainti ff does not entitle plainti ff to relief

...

in the absence of a strong showing that other counsel could

not have acted for h[er] under the circumstances then exist

‐ ing.” Fle tt v. W. A. Alexander & Co.

, 302 F.2d 321, 323 (7th Cir.

1962).

In her reply, Katherin e shrugs o ff her second a tt orney as a

“de facto paralegal” because she primarily handled exhibits

and served as second chair. But “[t]he record clearly shows

that the other counsel wa s present in court and, indeed, acted

as plainti ff ’s spokes[person]” several times throughout trial,

id.

, including when the parties debated jury instructions and

evidentiary issues. Neither Katherine nor Homyk ever pro

‐ posed that the other lawyer conduct the closing argument.

Thus, Katherine’s argument, “under all the circumstances

shown by the record, is wholly without merit. In any event, it

was addressed to the sound discretion of the trial court and

we fi nd no abuse of discretion

... .” Id.

III. C ONCLUSION

For the above reasons, there is no cause to overturn the

jury’s verdict. The judgment of the district court is therefore

AFFIRMED.