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Opening Statements

Author(s): Judy Sutton Taylor and Margaret Littman


Source: ABA Journal, Vol. 101, No. 4 (APRIL 2015), pp. 9-14
Published by: American Bar Association
Stable URL: https://www.jstor.org/stable/24806146
Accessed: 19-02-2021 17:12 UTC

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"*"1 1 ( H ! 11H 11
LLLHJlid
EDITED BY JILL
JILL SCHACHNER
SCHACHNER CHANEN
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A R . O R G

CHICAGO

CUBS

HMHHHHi

For
ForIt's One,
It's Two,Two,
One, Three L
T
...atat
... thethe
Old Old Ballpa
Ballpark
As
Asopening
openingday day
nears,nears,
the Chicago
the Cubs
Chicago
face a variety
Cubs face
of lawsuits
a variety
over
"THIS
"THISISIS
GONNA BE THE
GONNA BE YEAR."
THE YEAR." October. TheOctober. RickettsThefamily
Rickettspurchased the Cubs
family purchased in in
the Cubs
It's the
It's the mantra
mantraChicago
ChicagoCubsCubs fans
fans have
have started
started nearly
2009
nearly and 2009 andengaged
has been has been
in aengaged in a long-running
long-running dispute disput
every season
every seasonwithwithsince
since the
the team
team wonwon its its
lastlast World
World withof
with owners owners
nearby of nearby
buildings who buildings
claim thesewho claim these pl
plans—
Series—in 1908.
Series—in 1908. But
Butif if2015
2015is,
is,finally,
finally,the the year,
year, which
fansfans
bet include
bet- erecting
which a new
include 2,400-square-foot
erecting video
a new 2,400-square-foot vid
ter get
ter get out
outtheir
theirscorecards
scorecards to to stay
stay abreast
abreast of aof a scoreboard
slew slew
of of scoreboard
and adding andLED adding
signs—will LEDunlawfully
signs—will unlawfully
lawsuits that
lawsuits that may
may affect
affectwhere
whereand andhow
howthey they see
see home obstruct
obstruct
home views fromviews from the
the lucrative lucrative
"Wrigley "Wrigley rooftops,
rooftops,"
games played at historic Wrigley Field. where seating, where food and food
seating, drinks andoffer
drinksan alternative
offer spot spot
an alternative
The
The suits
suits all
allcenter
centeron on$575
$575million
millionin in
renovations
renovations for
forfans
fanstotowatch
watch live
live Cubs games.
games,
to the
the historic
historicballpark
ballparkproposed
proposed bybythethe
team's owners,
team's owners,AA 20-year
20-year agreement
agreementthat's
that'sbinding
binding through
through 2023
2023
which
whichcommenced
commenced at the start
at the of the
start of off-season last
the off-season last has the
has therooftop
rooftopowners
owners paying
paying 1717 percent of their
percent of their
PHOT GRAPHYB JOSHUAMEL IN

APRIL 2015 ABA JOURNAL

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Opening
OpeningStatementsStatements
annual
annualgross revenue
gross to therevenue
Cubs to the Cubs
ininexchange
exchange
for, among other
for, among other
things,
things,not having
not theirhaving
views their views
obstructed. When the Ricketts
family announced last spring that
There's
There s No Such Thing N
it planned to go ahead with the
controversial renovation plans
that could hinder those views, asas
Bad Publicity
Bad Pu
the lawsuits came soon after.
In January, the rooftop owners
California
California
lawyer's unusual YouTube video
lawyer's
sued the Cubs organization in a leads
leads
to awe, ire andto
clicks awe, ire an
Chicago federal court over a variety
of claims relating to the proposed LAST
LAST YEAR,
YEAR,NORTHERN
NORTHERN planning. He claims
planning. to have
He claims once once
to have
renovation of Wrigley, including CALIFORNIA attorney Michael Michael wonwonoverover
a new client
a new by by
client doing
doinga a
antitrust violations, deceptive prac Fiumara
Fiumarawanted
wanted to drive traffic
to drive traffic headstand
headstandatata aSuper
SuperBowl
Bowlparty,
party.
tices, defamation and anticipatory to his
to hisfirm's
firm's website,
website, so heso he Fiumara Fiumara has had
has had clients
clients over the
over the
breach of contract. The plaintiffs followedsome
followed sometraditional
traditional Bb
are accusing the team of violating marketing
marketing advice
adviceand
and
the 20-year revenue-sharing agree filmed a series of infor
ment and other anticompetitive mational YouTube videos
behavior. The rooftop owners to boost his search engine
claim that the Cubs, believing roof optimization.
top businesses were driving down After several hours
ticket prices inside Wrigley, had making what Fiumara
suggested a price-fixing operation. describes as "stodgy"
When the rooftop owners declined, videos, he and his team
the team proposed new outfield got a little slaphappy.
signage to strong-arm owners What happened next
into selling their properties or was anything but tra
risking obstructed views. ditional for law firm
"The
1 he Cubs will vigorously
Cubs will vigorouslycon
con marketing. Fiumara
test this lawsuit and move forward pulled out a speaking
confidently with the Wrigley Field sex doll he says he
expansion construction project, received as a gag gift
which is well underway," said the and interviewed her as
Cubs' attorney, Andrew A. Kassof if she were a client. With
of Kirkland & Ellis, in a statement the
the doll
doll on
on his
hislap
lapspew
spew
issued after this suit was filed. ing aa number
ing numberof ofraunchy
raunchy recorded years who behaved
recorded behaved inappropriately.
inappropriately,
"Wrigley Field's expansion and ren Fiumara feigned
messages, Fiumara surprise So
feigned surprise So while
whilehehedescribes
describesthethe
ad as
ada as a
ovation is in the best interest of at his
at his "client's"
"client's"inappropriate
inappropriate com- parody, he says
com says it
it is
is based
based in
in real
real
the team, its fans, Major League ments
mentsand andtold herher
told thatthat
he needed
he needed world
worldexperiences.
experiences,
Baseball and the city of Chicago." to
to end
endthe
theconversation
conversation
because
because The The
video hashas
video drawn
drawncriticism
criticism
A separate complaint against therules
the rulesof of professional
professional conductconduct
from from viewers—peers
viewers—peers and nonattor
and nonattor
the city by the same rooftop own prohibit
prohibit sexual
sexual relations
relations between between neys alike—who
neys alike—who say the adsay the ad is unpro
is unpro
ers also claims that a change to client
client andand
counselor.
counselor. fessional.fessional.
But it doesn't appear
But it doesn't to to
appear
the signage plans approved by the It was
It wasthat
thatlast
last video,
video, of course,
of course, violate
violate conduct
conduct regulations,
regulations, legal legal
commission—supposedly to keep thatgot
that gotthethe firm
firm moremore
thanthan
just just ethics
ethics experts
experts say. Fiumara
say. Fiumara says says
the team on track to earn a $75 improvedSEO.
improved SEO.AtAt press
press timetime
the the there
there also
also hashas been
been positive
positive feedfeed
million tax credit—strategically ad
ad had
had more
morethan
than29,000
29,000 views
viewsonon back
back fromfrom current
current and prospective
and prospective
blocks the views of specific rooftops YouTubeand
YouTube andcoverage
coverage in in national
national clients alike.alike,
clients
whose owners refused to sell to the media,including
media, including Comedy
Comedy Central's
Central's "One
"One client
client said,said, 'People
'People without
without
Ricketts family. @Midnight
@Midnight series.
series.His
Hisother
othervideos a sense
videos of humor
a sense scare me'
of humor "—a me'
scare sen "—a sen
As opening day nears, it's likely —about4040total—typically
—about total—typically havehave timent
timentFiumara
Fiumarashares.shares.AA prospec
prospec
this won't be the last legal tug of about
about 300300
views.
views. tive client tive sawclient
it as
sawevidence
it as evidencethat
that
war over who has the rights to the Fiumara's
Fiumara's approach
approach Fiumara would use
isn't cookie- Fiumara
isn't cookie the media as would use the
views at the ballpark. Whatever the cutter,
cutter, nor
nor is his background: He needed and retained
is his background: He neededthe firm. and retained th
outcome, if the Cubs are on track to once
once worked
worked as a professional
as a professional body A sequel isbody A sequel is in the wo
in the works.
an elusive title by season's end, you builder
builder and
and has has a degree
a degree in city in city —Margaret Littman
-Margaret Littman
can bet it'll be second-page news.
—Judy
—Judy Sutton Taylor Sutton Taylor bb
FOR
FOR MORE:
MORE: Watch
Watchthethe
video
video
at ABAJournal.com/magazine.
at ABAJournal.com/magazine.
£g
10luI I ABA
ABA JOURNAL
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Opening
OpeningStatements
Statements
10 QUESTIONS

Held Accountable
This D.C. lawyer coordinated a massive pro bono effort on
on behalf
behalf of
of Holocaust
Holocaust victims
victims
ON
ON NOV.
NOV. 5,1942,5,1942,
a young a young fT Did you feel like
Didyou had
you feel to had
like you winto win
Jewish
Jewish manman
namednamed Leo
Leo Bretholz Bretholz jfe. , 1F ""1 f like you couldn't
like you let them
couldn't let down?
them down?
was herded into a French state- I - ^ 1 I felt a tremendous, sometimes
was herded into a French state I felt a tremendous, sometimes
owned railway car bound for JllP ~ " ikM < - * overwhelming, sense
owned railway car bound for overwhelming, ofofresponsi
sense responsi
Auschwitz.
Auschwitz. Between
Between 1942 and 1942 and BHH * ^ ■§ , MMI bility. These survivors
bility. These survivorssuffered
sulfered inin
1944,
1944, the the
SociétéSociete Nationale des l|^Hp such incomprehensible
Nationale des ways ways
such incomprehensible andand
Chemins de fer Fran^ais
Chemins de fer Français trans trans- ■■t'fy ,1 were denied justice
were denied justicefor
for sosolong,
long,
ported approximately 76,000 Jews j|j and they deserved it so richly,
ported approximately 76,000 Jews and they deserved it so richly.
and
and "undesirables"
"undesirables" to Nazi deathto Nazi death ' I V You must have Youhadmustahave
significant
had a significant
camps.
camps. FewerFewer than
than 3 percent sur 3 percent sur- • U / Mrl workload
workload in addition to the in
SNCF addition to
vived.
vived. Bretholz was lucky: He
Bretholz wasand lucky: He and 'f f S! * I' case,1 considering
• JI' case, your area of
considering yo
aafriend
friend pried pried
open barsopen covering bars covering expertise-congressional expertise—congressional and cor and cor
their
their cattle car's small
cattle window
car's and
small window and porate investigations—and porate investigations—and the fact the fact
jumped.
jumped. Some Some 60 later,
60 years years later, while that you joined the
while firm
that you joined just in time
the firm just in time
Bretholz
Bretholz was livingwasinliving Maryland, in Maryland, for the 2008 financial for the 2008 financialcollapse, collapse.
helearned
he learned SNCF was SNCF bidding was on bidding on It was just unfolding as I got
It was just unfolding as I got
commuter
commuter rail deals rail
in his state.
deals in his state. here, and I was here,quickly in the
and I was quickly in the
He
He didn't
didn't oppose oppose
the deals. He the deals. He middle of investigations middle of investigations and and
wanted
wanted the railway
the railway to acknowledge to acknowledge representing companies
representing and and
companies
its
itswartime
wartime guilt. guilt.
Last DecemberLast December— institutions like Countrywide,
institutions like Countrywide,
after
after more more thanofalegal,
than a decade decade Lithuania—he
of legal, left for the United
Lithuania—he theleft
formerfor CEO of theAIG ... and a
United the former
legislative
legislative and diplomatic
and diplomaticmaneu States before the outbreak
maneu- States before number of the the outbreakof prominent of the
hedge number of p
funds.
vering—the
vering—the French government
French government war, but soon after war, thebut soon after
war started, There was the war started,
no shortage of work—it There was
approved
approved a $60amillion fund to com
$60 million fund
his entireto family
com-was his entire family
exterminated was exterminated
was like drinking from a fire hose. was like
pensate
pensate victims,victims,
survivors and survivors
heirs. with and heirs.
the exception of with the exception
his youngest How did you of juggle his youngest How di
it all?
Helping
Helping to make to itmake
all happen it was
all sister,
happen my greatwasaunt. sister, my great
She managed aunt.
It certainly She managed
presented challenges It certain
another
another youngyoungJewish man, Jewish
Akin toman,
survive Akin
and madeto her survive
way to and
at times, made
but thisher was a way firmwide to at times,
Gump
Gump partnerpartner RaphaeltheProber.
Raphael Prober. United Statesthe and found
Unitedhim States and Given
undertaking. found Akin him Gump's undertakin
What
What wasrole
was your your in thisrole inbecause
matter? thisshe had remembered
matter? his
because she had remembered
tremendous commitment to pro his tremendo
bono
IIoversaw
oversaw the efforts theof more than
efforts of more
address from than address from
the correspondence and tothe correspondence
this case, there were scores ofand to th
50
50 lawyers
lawyers and lobbyistsandinlobbyists
several he hadin several
maintained he had maintained
with their people pitching in with theirAnd
when needed. people pit
states,
states, ensuring
ensuring thatfront
that every every front—
parents. parents. I have a very understanding
I have a very understanding wife,wife.
A il till _!■_*> FN_ iL.
stateand
state and federal
federal advocacy,
advocacy, negotianegotia- Are they still alive? Do they Whatknow happens Whatnext happens
in the next in the
tions
tionsand andcommunications
communications with with
the the what
what you helped you to accomplish?
helpedSNCF tocase?
SNCF case?
accomplish?
State Department, public relations, MyMy great-aunt is still alive; she's Once
great-aunt isOncethe
stillmoney
the money is approved
alive; is approved
she's
grassrootsoutreach,
grassroots outreach,litigation—
litigation in her inearly her 90s. It's
earlyobviously90s. a and appropriated
and
It's appropriatedin France,
obviously it will a
in France, it will
moved
movedforward
forward in concert
in concerttoward the
toward the
veryvery hard hardthing tothingtalk about for be be
to administered
talk
administered about
by bythe theU.S.
U.S.
for State
State
ultimateobjective
ultimate objectiveofof providing
providing repa-anyone
repa anyone who went who throughwent it, butDepartment
Department
through based on
based it, the eligibility
the but
eligibility
rations and
rations andsomesomemanner
manner of of justice she
justice she has been
has very happy tovery
been see that requirements
requirements
happy ofto
of the agreement.
the agreement,
see that
to
to the
thesurvivors
survivors and and
theirtheir
families.
families. there
there is still is progress
still beingprogress
made, My My hope
hope is that
thatititwill
isbeing willmove
made,
move along
along
Howdid
How didyou you
get get involved? that there's
involved.' that still accountability.
there's as speedily
still as as possible,
accountability.
speedily given the
as possible, given the
Shortlyafter
Shortly after I joined
I joined the the
firmfirm Did Did you you get to meet getany to of meet
the
ageageof ofmany many
any of theof
o! the survivors,
the
survivors.
in 2008,
in 2008, thethe partner
partner who whorecruited SNCF survivors?
recruited SNCF survivors? And what's Andnext what's for nextyou, for you,
me andand was
was my my mentor
mentor askedasked me I did.
me I did. I became close
I became close to
to aanumber
number propro bono-wise?
bono-wise?
to spearhead
spearhead this this representation.
representation.He ofofthem,
He them,including
includingLeo LeoBretholz.
Bretholz. We Wejust
just started working
started working withwith
quickly realized
quickly realized how how interested
interestedI Iwas was
HeHewas was truly
truly oneoneof of
thethe most
most re re- the
the Washington
Washington Nationals
Nationals Youth Youth
subject and
in the subject and how phenomenalmarkable
how phenomenal markable menmenI have ever ever
I have and will
and willBaseball
Baseball Academy,
Academy, helpinghelping
with with
experience it
an experience it would
would be be given
giventhetheever
everhavehavethethe honor
honor of knowing. general
of knowing. organizational
general organizational and andgovergover
skills that
skills thatwere wererequired.
required. Unfortunately,Unfortunately, Leo passed
Leo passed awayaway nance issues.
nance issues. I amI am committed to
committed to
Was your
Was yourinterest
interestinin part
part before the settlement was finalized,
because before the settlement was finalized,
because keeping keeping
pro bono pro a part bonoof mya part of my
you have
you havefamily
family members
members whowho werewere
but thisbutnever
this would
neverhave would have happened
happened career; andcareer;
as a bigand as a fan,
baseball big baseball fan,
murderedduring
murdered during the
the Holocaust?without
Holocaust? without his his
tremendous
tremendousefforts and
effortsI and I am especially
am especially excited aboutexcited about this
this
Yes. My
Yes. Mygrandfather
grandfather waswasfromfromhis his refusal
refusal to give
to give up. up. recent engagement.
recent engagement. —Jenny —Jenny B. Davis
B. Davis
PHOT GRAPHBYDAVIDFONDA

APRIL 2015
APRIL 2015 ABA
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JOURNALIIIIII

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Opening
OpeningStatements
Statements

What
WhatEveryone
EveryoneIs Is
Wearing
Wearing
Data
Data from
fromwearable
wearabledevices
devices
is being
is being
eyed eyed
as evidence
as evidence
in the courtroom
in the courtroom
WHAT'S
WHAT'SONE
ONE(and
(and
possibly
possibly
the the
only)only)
thing
thingyour
yourmother,
mother, youryour
spouse
spouse
and you
and you
might
mighthavehaveinin common?
common? YouYou
mightmight
all beall be
sporting
sportingwearable
wearable technology
technology around
around
your
yourwrists,
wrists,recording
recording everything
everything fromfrom
your
yourheart
heartrate rateto to
sleep
sleep
cycles.
cycles.
On
On an
anindividual
individual level,
level,
thatthat
information
information
could
could suggest
suggest that you take that the you
stairs intake the stairs in- jüHKfü' •. Jfl
stead
steadofofthe theelevator.
elevator.But on
But theonaggregate
the aggregate
level,
level,ititis is
a treasure
a treasure trovetrove
of information,
of information,
says
saysSanSanJose,
Jose,California,
California,lawyer lawyer
Neda Neda
Shakoori,
Shakoori, whowhooversees
oversees the e-discovery
the e-discovery
practice
practiceatat
McManis
McManis
Faulkner.
Faulkner.
Simon
SimonJ.J. Muller,
Muller,a lawyer
a lawyer
in Calgary,
in Calgary,
Ca
Ca nada,
nada,is is
in in
thethe
process
process
of trying
of trying
to get to get
that treasure trove entered into evidence in
a personal
personal iniurv
injurycase
casethat
thatmay
maysogotototrial
trial
within the
within theyear.
year.The
Thecase
case centers
centers around
around a woman
a woman whowhoclaimsclaims her activity
her activity ExpertsExpertssay say
thatthat
datadata
from from wearable
wearable
levels were
levels were significantly
significantlyreduced
reducedas as a result
a result of of
an an accident.
accident. Muller
Muller hopes totechnology
hopes to technology will soon
will come to U.S.
soon come to U.S.
use data
use data from
fromherherwearable
wearabletotoshow
show the
the reduction
reduction in in
herher activity.
activity. "The"The
data data courtrooms.
courtrooms. It may It be
may be inevitable,
inevitable,
not yet
has not yet been
been tested
tested in
in court
courtreliability,"
reliability,"Muller
Mullersays,
says,"but
"butI think
I thinkthere but
thereis isShakoori sees several
but Shakoori issues of
sees several issues of
great
great probative
probative value." value." concern—one of which concern—oneis the reliability
of which is the reliability
of
ofthe thedata. data.
On some Ondevices
some you devices
can you can
binge-watch
binge-watch OrangeOrange
Is the New IsBlack
the New Blac
our best selling
selling dress
dress shirtshirt while
while seated
seated
and, ifand,
you waveif youyour wave your
arms,
arms, your your
devicedevice
may log it mayas physical
log it as phy
white pinpoint
pinpoint oxford oxford activity.
activity. EvenEven
when the whendevices thework devices wor
as
asintended,
intended, peoplepeople
forget toforget
charge, to charge
1 SPECIAL SPECIAL sync
sync or or
evenevenwear them.
wear them.
INTRODUCTORY Because
Because of theofreliability
the reliability
issues, she issues, sh
doesn't
doesn't expectexpect
data from data wearables
fromtowearables

▲ PR'CEPRICE
11$.95
$19.95 stand
stand on onits own;
its but
own; it might
but corrobo
it might corr
rate
rate testimony
testimony from anfrom expert an witness,
expert witn
reg. $69.50-$74.50
such
such as aasphysician.
a physician.
A
Ahost host of privacy
of privacyand ownership
and ownership
• white 100% cotton
of-data
of-data concerns
concerns
may arise mayas well.
arise as well.
• 6 collar styles Shakoori
Shakoori points points
out thatout therethatare curthere are c
• button or french
trench cuffs
rently
rently no HIPAA
no HIPAA regulations regulations
connected conn
• regular, big & tall or trim to
tothesethese devices,
devices,
but as theybutare aslinked
they are lin
jKgM • regular, big & tall or trim • 141/2"x32" to 20" x 37" to
tomore more specialized
specialized
health data,health
it data, it
could
could be abe slippery
a slippery
slope. slope.
• FREE (reg. $10.95) And,
And, of ofcourse,
course,
if plaintiffs
if plaintiffs
attorneys attorn
present
present the data,
the it data,
leaves ittheir
leaves
clients their clie
monogramming
open
open to to
cross-examination,
cross-examination, or gives or gives
defense counsel reason to seek their
• Add a silk tie for
own such data. "It is true for any
$19.95 (reg. $62.50)
Blue, Red, Green,
Green, Black,
Black,
information that it is a double-edged
Purple or Orange. sword. If you wish to rely on this
information to prove a case, it can
be used to disprove [one]," Muller
Paul Fredrick says. "But for the vast majority of my
paulfredrick.com/introoffer clients, the objective is to find a reliable
FREE EXCHANGES. New customer offer. Limit 4 800-309-6000 way to confirm what they say. There is
shirts
shirts per
per customer.
customer.Shipping
Shippingextra.
extra.
Cannot
Cannot
be be
_ _ ,,
combined
combined with
withother
otheroffers.
offers.Expires
Expires5/31/15.
5/31/15.
SPeclfy
SPeclfy
Promotional
Promotional
codecode
MWMSAA
MWMSAA
possible data here to mine." —M.L.

12 IABA
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APRIL2015
2015

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Opening
OpeningStatements
Statements

Hearsay
Not Prepared
37% of general counsel say their companies have experienced
a cybersecurity breach in the last year.
Nearly half of those GCs—47%—say their companies are
inadequately prepared to defend against cyberattacks.
Source: Consero Group's January 2015 General Counsel Data Survey.

82,092
The number of patents generated
in 2014 by the 50 top patent
assignees in the USA. Did You Know
Source: IFI Claims Patent Services.
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available in a timely manner, and without
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Government contracts lawyers run by script and concluded in
Trusts and estates lawyers less than five minutes."

—North Dakota Chief Justice Gerald


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Cleantech/renewable
Clean tech/renewable "
energy
energylawyers
lawyers

Insurance
Insurancelawyers
lawyers

Communications,
Communications, media
media
and and
entertainment
entertainment lawyers
lawyers

18 States
Are actively considering
civics education initiatives
as prerequisites for high
school graduation.
Source: Joe Foss Institute.
Source:
Source:Vault's
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2014
LawLaw
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ILUSTRAIONS:ANDREWROBERTS(2),J.MANZO(2)

APRIL 2015
APRIL 2015 ABA
ABAJOURNAL
JOURNAL| |I IO
| 13

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Cartoon Cantion
Caption Contest

WINNER! Congratulations
Congratulations to
to Megan
Megan Lasswell
Lasswe
for garnering
garnering the
the most
most online
online votes
votes for
for her
her cartoon
carte
caption. Lasswell's
Lasswell's caption,
caption, to
to the
the right,
right, was
was among
am
Journal's
more than 100 entries submitted in the Journal
monthly
monthly cartoon
cartoon caption-writing
caption-writingcontest.
contest.

JOIN
JOIN THE
THE FUN
FUN Send
Sendus
usthe
thebest
bestcaption
caption
for the
the next
next legal-themed
legal-themedcartoon
cartoon(below).
(below).
Email
Email entries
entries to
to captions@abajournal.com
captions@abajournal.comby
by
11:59
11:59 p.m.
p.m. CT
CT onon Sunday,
Sunday,April
April12,
12,with
with"April
"April
Caption
Caption Contest"
Contest" in inthe
thesubject
subjectline.
line.
For complete
complete rules,
rules,links
linksto
topast
pastcontests
contests
and
and
more
more details,
details, visit
visitABAJournal.com/contests.
ABAJournal.com/contests.

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"Your honor,
"Your my client is innocent. And probably delicious."
—Megan—M
Lasswell, St. Louis

RECOGNIZING
YOUR PROFESSIONAL
ACHIEVEMENTS
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