Elder v. Chicago Transit Authority et al

Filing 119

MEMORANDUM Order; Motion hearing held on 11/3/2016. Defendants' motion for leave to amend the final pretrial order 114 is granted in part and denied in part for the reasons stated orally in open court and in this memorandum order. Jury Trial set for 12/12/2016 at 09:30 AM. Signed by the Honorable Milton I. Shadur on 11/4/2016:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EMPEROR ELDER,
Plaintiff,
v.
CITY OF CHICAGO AND OFFICER
SAMUEL SMITH,
Defendants.

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Case No. 13 C 8103

MEMORANDUM ORDER
On October 16, 2015 this Court entered the Final Pretrial Order (“FPTO”) that the parties
then remaining in the case had agreed upon in this action brought pro se by plaintiff Emperor
Elder (“Elder”). 1 Time was then expended in this Court’s having to rule on motions in limine
and, more significantly, by the parties’ efforts to reach settlement that ultimately resulted in the
case remaining pending only against the City of Chicago and its Officer Samuel Smith.
Ultimately the need to reconcile the dates of availability of both sides of the litigation (including
their witnesses) and of this Court resulted in the scheduling of trial to begin on Monday,
August 22, 2016.
Unfortunately, at the end of the week preceding the scheduled trial date plaintiff Elder
communicated to his adversaries and this Court the news that he had just suffered a fall that
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1
As the case number indicates, the action was just a few weeks short of two years old at
that time. This Court essays no criticism in that respect, but the slow going during that time
frame was a precursor of the delays have occurred since then.

resulted in a short-term hospitalization. That of course necessitated the vacation of the
August 22 trial date. While this Court then planned to reconcile everyone’s time commitments
in order to set a new date for trial, it was surprised to receive a document captioned “Amended
Notice of Defendant’s City of Chicago and Officer Samuel Smith’s Motion for Leave to Amend
the Final Pretrial Order” (the “Motion”), noticed up by those remaining defendants for
presentment on September 15. It set the matter over to October 17 to give Elder the opportunity
to respond, and on that date the Motion was further continued to November 3.
This memorandum order will memorialize this Court’s rulings in an extended (and
sometimes contentious) hearing on that date. During the course of that proceeding Elder proved
once again to be a very difficult litigant to deal with, constantly exhibiting at least two
unfortunate tendencies:
1. Whether because of a lack of understanding or a sense that he
knows better than anyone else (including this Court) how a case
involving a non-lawyer acting pro se should proceed, he stubbornly
resisted this Court’s efforts seeking to aid him on that score.
2. That and other attitudinal problems created an environment in
which Elder would not really listen to what was being said to him,
simply waiting instead for a pause in which he could voice his own
views.
It should be said at the outset that this Court considered the Motion to be very
problematic. It is of course true that the FPTO in this case included this penultimate paragraph
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preceding this Court’s signature (a paragraph that is a part of the standard Form LR 16.1.4
prescribed by this District Court):
This order will control the course of the trial and may not be
amended except by consent of the parties and the Court, or by
order of Court to prevent manifest injustice.
But because (as explained earlier) the case would normally have gone to trial with the existing
FPTO spelling out the game plan for that purpose, with that having been thwarted by an
unfortunate accident, this Court would be loath to entertain any afterthought modifications, and it
therefore directed counsel for defendants to explain why the proposed amendment of the FPTO
should be entertained.
It developed at the November 3 hearing that with two exceptions the purpose of the
Motion was simply to provide any necessary foundation for certain exhibits that might likely
serve to impeach Elder, during his cross examination, as to some anticipated testimony in his
case in chief. Those exhibits, which comprised (1) Elder’s medical records from St. Bernard
Hospital on the date of the incident sued upon and (2) a statement that he made to the Chicago
Transit Authority (one of the defendants that are now out of the case by reason of settlement)
describing the incident, were unexceptionable.
That of course put an entirely different light on those aspects of the Motion , but this
Court had a good deal of difficulty in conveying to Elder the fact that any question as to the
foundational support for exhibits in trials, unless there is some question as to the authenticity of
such exhibits, is normally handled by agreement between the parties (or, to the same effect, by
the nonassertion of any foundation objection), rather than by compelling the appearance of a
witness. When Elder finally grasped that concept, he offered no objection, and that portion of
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the Motion was granted. Two other aspects of the Motion were denied by this Court without
requiring any responsive input from Elder: (1) the proposed addition of video footage of Elder at
the 95th Red Line Station at various dates other than the date of the incident sued upon and (2)
copies of Elder’s pro se complaints filed in a number of other cases in this District Court and in
state courts: Case Nos. 13 L 2010, 14 L 3463, 14 C 6495, 14 C 9835, 14 C 9836 and 16 C 878.
Finally, an inordinate amount time at the November 3 hearing had to be devoted to this
Court’s renewed urging that Elder avail himself of the services of a member of this District
Court’s trial bar, both to assist him in the orderly presentation of his case in chief (particularly
but not exclusively in the presentation of his own testimony) and perhaps in other aspects of the
trial. This Court sought to explain to Elder -- but in vain -- that to permit him (1) to pose
questions to himself and then answer those questions or (2) even worse, to engage in an extended
narrative would create a major risk of his communicating something to the jurors that would
poison the evidentiary well. It is of course true that if such an eventuality takes place in a
lawyer-handled trial, the Judge presiding over the case can give a cautionary instruction to the
jury -- but common sense teaches that although such a practice may insulate against a reversal on
appeal, it is often quite unrealistic to consider that the prohibited information can be erased from
the minds of the lay jurors.
During the course of colloquy on that subject, Elder confirmed that what he indeed had in
mind that was that he would conduct his own testimony in an extended narrative form, even
without first identifying any question to which any part of his narrative was directed. It also
turned out that Elder’s resistance was in part due to his misconception that any trial bar counsel
designated to assist him would have to be paid for his or her services. When Elder finally
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listened to this Court’s explanations seeking to dispel his misunderstandings and the reasons for
this Court’s rejecting them, it appeared that he has acceded to this Court’s ruling on that score,
and this Court will cause such a designation to be made.
What has been said here has disposed of the Motion by its partial grant and partial denial.
Finally, this Court has set the case for trial at 9:30 a.m. on December 12, 2016.

Date: November 4, 2016

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Milton I. Shadur
Senior United States District Judge

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