Mizrachi v. Ordower et al

Filing 263

ORDER ON DEFENDANTS' MAY 7, 2021 MOTIONS, signed by the Honorable Matthew F. Kennelly on 5/10/2021: For the reasons stated in the accompanying order, the Court grants defendants' motion to file a second amended exhibit 3A to the final pret rial order 258 ; denies their motion for clarification of the trial-time-limits order 261 but has in fact clarified it; and denies their motion to clarify or reconsider the in limine rulings and their renewed motion to stay 260 . Finally, to ret urn to a topic addressed in the first paragraph of this order, Ordower is directed to show cause why the Court should not assess trial time against him for the latter motion 260 , consistent with the terms of the trial-time-limits order. The Court proposes to assess only one hour, though this is a good deal less time than the Court spent reviewing the motion and the relevant underlying and related material. This will be addressed at the outset of the morning session on May 11. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH MIZRACHI,
Plaintiff,
vs.
LAWRENCE ORDOWER and
ORDOWER & ORDOWER, P.C.,
Defendants.

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Case No. 17 C 8036

ORDER ON DEFENDANTS' MAY 7, 2021 MOTIONS
The trial in this case is set to begin on Tuesday morning, May 11, 2021. On
Friday, May 7, the defendants (collectively, Ordower) filed a flurry of last-minute
motions. The Court notes that they did so understanding that, under the Court's April
19, 2021 trial-time order, "[t]ime spent arguing evidentiary or other in limine matters
aside from those already filed as of the date of this order, including the Court's review of
written submissions on such matters, also will count against a side's [time] allocation."
Dkt. no. 247 at 2.
1.

Unopposed motion for leave to file second amended exhibit 3A
The Court grants Ordower's motion to assert an additional objection to plaintiff's

exhibit 138, but only because Mizrachi does not object (on certain conditions that
defendants met). Otherwise the motion would be untimely without a legitimate
justification, seeing as how Ordower had access to the actual exhibits long ago and thus
cannot have reasonably relied on the titles that Mizrachi gave them in his section of the
final pretrial order.

2.

Motion for clarification of order regarding trial time limits
As the Court has directed, each witness—including the parties—will be called

once and will not be recalled later, with an exception to be discussed in a moment. See
Id. at 4. This is a reasonable and completely appropriate exercise of the Court's
authority under Federal Rule of Evidence 611(a) to exercise reasonable control over
"the mode and order of examining witnesses and presenting evidence." It will
streamline the presentation of the evidence and will facilitate the jurors' understanding
of the testimony, as compared with a presentation in which witnesses would appear and
reappear depending on whose "case" is being presented.
The exception involves "rebut[ting] evidence offered later that the party wishing to
recall the witness could not reasonably have anticipated." Dkt. no. 247 at 4. Ordower
contends that this will unfairly prejudice him because it will require him to anticipate
testimony by witnesses called by Mizrachi who might testify after defendant Ordower—
in particular, the plaintiff. Ordower should stop worrying. The Court will read its order's
reference to evidence that the party "could not reasonably have anticipated" liberally, to
avoid a situation in which Ordower does not get to rebut testimony that his counsel did
not anticipate and that is offered after his own testimony. But Ordower's counsel should
not expect to be able to defer their examination of Mr. Ordower or any other witness
until "their case." That is exactly what the Court's order precludes. Rather, they should
do the best they can to address all relevant topics during their examination of Mr.
Ordower if and when he is called adversely by Mizrachi. The Court notes that this is in
their clients' interest too—for if the trial were run that way, it would effectively permit
Mizrachi to cross-examine Ordower on two separate occasions during the trial.

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3.

Renewed motion to stay / motion to clarify or reconsider in limine ruling
Ordower has re-renewed his motion to stay this case pending the resolution of

litigation in Florida. The Court has discussed the Florida litigation at length in two
previous rulings, including its opinion denying Ordower's renewed motion to stay, see
Dkt. no. 182, and will not repeat the discussion here. The Court again denies the
motion.
There is certainly factual overlap between the matters being litigated here—
Ordower's alleged legal malpractice and breach of fiduciary duty vis-à-vis Mizrachi—and
those being litigated in Florida state court. But Ordower has never been able to identify
any matter that must be determined with respect to the Florida litigation to permit the
present case to proceed to conclusion. The Court previously rejected Ordower's casewithin-a-case argument and sees nothing in the present motion that would suggest that
ruling was wrong.
Nor is there any other appropriate basis to stay the present case to await a
decision in Florida (presumably including any appeals there, which could take a long
time). To be specific, a ruling against Mizrachi in the Florida litigation—determining that
he does not have an interest in the relevant limited liability company—would be in no
way inconsistent with a finding by the jury in the present case that he was improperly
deprived of such an interest by Ordower's malpractice or fiduciary breach. In fact, those
two determinations would not be in the least bit factually or logically inconsistent, nor
would an award of damages to Mizrachi here based on the value of the interest
wrongfully denied him (if that is what the jury finds). This scenario might allow Ordower
to argue to the Florida judge that the Florida case is moot because Mizrachi has been

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fully compensated, or that any monetary award in the Florida case should be offset to
avoid a double recovery—but none of that has anything to do with whether the present
case may appropriately proceed now. And to look at it from the other direction, any
perceived inconsistency between a ruling favorable to Mizrachi in the present case and
his claims in the Florida case, may be fully dealt with by the Florida courts, which is the
way it should be—the preclusive effect of a judgment is always up to the second court.
The same is true of any preclusive effect an unfavorable ruling here might be perceived
to have vis-à-vis the Florida case.
Nor would a ruling favorable to Mizrachi in the Florida case—awarding him an
interest in the relevant LLC—undermine or preclude his claims in this case. As the
Court has previously discussed, Mizrachi has claims for damages in addition to the loss
of the value of the LLC interest. And if Mizrachi prevails in the present case and gets an
award of damages for the loss of the LLC interest, as just discussed Ordower will be
free to argue to the Florida judge that he has already been compensated for the interest
he seeks and that this should have a preclusive effect on the Florida litigation.
For these reasons, the Court again denies Ordower's motion to stay.
Ordower's last request is for reconsideration of the Court's ruling barring certain
testimony from both sides' experts. The Court precluded the experts from (among other
things) rendering opinions on the existence or nonexistence of an attorney-client
relationship between Mizrachi and Ordower. The Court stated, however, that the
experts could render opinions regarding breaches of provisions of the Illinois Rules of
Professional Conduct based on an assumption that the jury finds an attorney-client
relationship.

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Ordower seems to think that this unfairly prejudices him because it precludes him
from offering an expert opinion that if there is no attorney-client relationship between
Mizrachi and Ordower, then Ordower didn't violate the Illinois Rules of Professional
Conduct. It's hard to believe this is a serious argument; the key Rules that Mizrachi
contends Ordower violated apply, by their terms, only if there is an attorney-client
relationship. See IRPC 1.4, 1.7 & 1.8 (all cited in the report of Mizrachi's expert). The
Court will have no problem with a proposed instruction that specifically tells the jury that
these rules apply only if the jury finds an attorney-client relationship existed. 1
Ordower's real argument, sketched out in his motion, seems to be that he wants
his expert to be able to testify about Rule 1.13(g), which doesn't impose any prohibitions
or requirements regarding lawyer conduct and which Mizrachi's expert does not contend
Ordower violated. Rather, it discusses when a lawyer representing an organization may
also represent individuals affiliated with the organization.
Ordower has forfeited this point. It was fully available to him when he responded
to Mizrachi's motion in limine to exclude opinion testimony regarding the existence of an
attorney-client relationship, but he did not make the argument in his response to that
motion. The Court also notes that it does not appear that Ordower's expert Michael
Flaherty addresses Rule 1.13(g) in his report, though the Court hesitates to say that
definitively because the report is so long, is not fully text-searchable, and the Court has
had limited time to re-review it due to the last-minute nature of this motion. It appears

1 Another rule discussed in the reports by Mizrachi's and Ordower's experts bars deceptive conduct by an
attorney even outside the confines of an attorney-client relationship (i.e., vis-à-vis persons other than the
lawyer's client), but it is clear from the Court's in limine rulings of May 2 that neither side should be
expecting to be permitted to elicit expert testimony on whether Ordower acted deceptively or nondeceptively.

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that Flaherty discusses a different part of Rule 1.13, specifically Rule 1.13(a), but it
appears he does so only in connection with his now-excluded opinion that Mizrachi and
Ordower did not have an attorney-client relationship. See Dkt. no. 227-3 at ECF pp. 3336 of 68.
And that is a good segue to another problem with Ordower's motion: it appears
to be, in essence, an effort to get in via the back door the very opinion that the Court
has precluded. Rule 1.13(g) addresses, perhaps a tad obliquely, who a lawyer
representing an organization has an attorney-client relationship with. Were the Court to
allow Flaherty to opine regarding the application of Rule 1.13(g) in the situation at issue
in the present case, it would effectively undo the ruling the Court made barring expert
opinion on the existence of an attorney-client relationship. Ordower has offered no
viable basis to allow this.
For these reasons, the Court denies Ordower's motion. The Court will, however,
entertain any appropriate request to instruct the jury regarding the application of Rule
1.13, or the legal concept underlying it, in connection with its instructions to the jury on
how to determine whether there was an attorney-client relationship between Mizrachi
and Ordower.
Conclusion
For the reasons stated above, the Court grants defendants' motion to file a
second amended exhibit 3A to the final pretrial order [258]; denies their motion for
clarification of the trial-time-limits order [261] but has in fact clarified it; and denies their
motion to clarify or reconsider the in limine rulings and their renewed motion to stay
[260]. Finally, to return to a topic addressed in the first paragraph of this order, Ordower

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is directed to show cause why the Court should not assess trial time against him for the
latter motion [260], consistent with the terms of the trial-time-limits order. The Court
proposes to assess only one hour, though this is a good deal less time than the Court
spent reviewing the motion and the relevant underlying and related material. This will
be addressed at the outset of the morning session on May 11.
Date: May 10, 2021
________________________________
MATTHEW F. KENNELLY
United States District Judge

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