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Creative. Committed. Conscientious.
From the Stage to the Bench

Interview with Judge Jennifer Duncan-Brice Cook County Law Division

By Daniel M. Extrom

Spending an hour in Judge Jennifer Duncan-Briceís chambers can only be described as a pleasure. She is kind, pleasant, relaxed, open and interesting. She loves what she does, and she understands the importance of what she does, and she takes very seriously the duties of her office. Yet, she is so much more than a judge, and while the office is a part of her life, one gets the impression that it does not define her life. She is as much a wife and a mother of two successful grown children as she is a judge, and she is comfortable with all of it.

Growing up in various places, including Gary, Indiana and Pittsburgh, Pennsylvania, her family finally settled in Crown Point, Indiana. Her father worked in the steel mills, overseeing blast furnaces. She ultimately graduated from Crown Point High School. She went on to Denison University in Ohio, majoring in theater and film studies, which is not the typical political science-history approach to law school. Her emphasis was more in films, but she appeared also in several theatrical productions. She knew that she wanted to go to law school, but chose to major in theater and film because she knew that, after starting law school, there would be no going back and she would not have a chance to study theater and drama again. In addition to her interests in film and theater, she also played tennis in high school and continues to play on occasion, although, she says, ďI am not as spry as I once was!Ē She enjoys cooking and painting in water colors.

At age ten, she knew what she wanted to do with her life. A long-time friend of the family was a lawyer, and when she saw him in action in court, she found her calling: she wanted to try cases. After graduating from Denison University, she went on to law school at The John Marshall Law School, graduating in 1976. Her husband, Harry Brice, also graduated from John Marshall that same year. Her family is very supportive of her position as a judge. Her college background in drama helped her as a trial lawyer, and she learned from her drama training that it is important not to overplay oneís role. She used the same approach when trying cases as a lawyer. As a judge, she has observed that juries donít like lawyers who beat up or pick on a witness. Although they might think that they are scoring points, those lawyers will often alienate a jury.

In 1976, she became an Assistant Corporation Counsel in the litigation division in the City of Chicagoís Corporation Counsel Office, working primarily on civil rights cases. In 1985, she was promoted to Chief Assistant Corporation Counsel, and she reorganized the Torts Division. In 1987, she was promoted to Deputy Corporation Counsel.

In 1992, she was elected a judge in the Circuit Court of Cook County and was assigned to the Law Division. She was assigned a General Calendar Call in 1996. She hears a wide variety of cases, from minor car accident cases to medical or legal malpractice cases to construction cases. She also hears some commercial cases. She occasionally receives cases that require intensive case management. She is a co-author of Illinois Pretrial Practice.

She loved being a trial attorney, and loves being a judge. As a judge, she has noticed that the composition of lawyers in the courtroom has changed dramatically since she started practicing law. ďWhen I first started practicing, it was not unusual that Iíd be the only woman in the courtroom, and it could be kind of intimidating, but you kind of learned to deal with that fairly quickly, if you were going to survive. It was great training.Ē She has also noticed that some lawyers take their adversarial role too seriously, and she says that being an adversary does not require that one be antagonistic. She makes sure that she is in control in her courtroom, and when the lawyers start becoming too dramatic and antagonistic, she tells everyone that it is time to take a deep breath and settle down.

Q: What do you most enjoy about being a judge?

Judge Duncan-Brice: I do enjoy watching good attorneys try casesóthatís funóand making innovative arguments. I donít think thereís a month or a week that goes by that you donít learn something. I have a real varied docket, and you always have different kinds of problems come up, and that makes it interesting.

Q: If you were not a judge, what would you want to be?

Judge Duncan-Brice: I probably might want to be a folksinger! (Laughs.) But I was always so focused to practice law. And Iíve enjoyed it.

Q: In a certain sense, being a judge is a solitary, almost isolated, position, if you will, and itís an almost artificial role that we have to have in a free society. When you are making decisions, you look to past precedent, but what about the present? What kinds of support does a judge have in the present to be able to make and articulate a decision, because the technology in our world is moving so fast that you are constantly being put into new and unusual situations that there may not be much precedent for?

Judge Duncan-Brice: I remember I had a complicated property damage case. A warehouse burned down, and it contained legal files, and the question was: What was the value of the legal files? The defendants want to say itís worth the piece of paper itís written on. And they (the plaintiffs) are saying, ďNo, it has certain work product, it has certain history, and that was the question. I remember at one point, I had the attorneys agreeójust because I needed someone who I could get information from. I had the attorneys agree to hire an accountant for me just to talk toósomeone just to educate me so that I could know what questions I really should ask of the plaintiff and the defendant, because I am not an accountant and I donít have that background. That was an unusual situation. I see a lot of that now. I have one case now, a hospital case, where the information, the medical records, are on the computeróno paperóand the timing of when things occurred is whatís important, and they are having difficulty getting that timing of when things were put on the computer because itís a no-paper system, so I am allowing the plaintiffís expert to go in when they do this deposition because the plaintiffís attorney doesnít have this expertise, and then the defendantís expert would say, ďWell, you didnít ask the right thing, and we need this or we need that.Ē I am allowing him (the plaintiffís lawyer) to take his expert into the deposition so we can facilitate the retrieval of this information. We are going to be utilizing this more and more so we can facilitate the retrieval of this information.

Q: It may be that the court system needs its own consulting experts in order to understand what the lawyers are telling them.

Judge Duncan-Brice: Exactly. And thatís what happened in that fire case with the legal files. I just didnít have the accounting background. I saw a big studyóI forget which big accounting firm it wasóa 150 page accounting report. My eyes were spinning. When I sat down with this accountant, I realized some of my suspicions were true: it was a lot of smoke and mirrors, and they ended up not even using it at trial.

Q: One side of lawyers is paying this guy to say this, and the other side is paying that guy to say that, and the court itself has no frame of reference, and there is almost no baseline, and then the interesting thing is where does all this lead in the future? Do the lawyers get to depose the courtís consultants? There are a million possibilities!

Judge Duncan-Brice: Thatís right.

Q: As a judge, itís important to be able to be somewhat innovative and somewhat creative in a situation like this where there is no provision in the rules for this kind of thing.

Judge Duncan-Brice: You can talk to other judges, and they have different backgrounds, and they are a tremendous resource.

Q: It seems that cases get more complex all the time and lawyers will have boxes and boxes of records and transcripts and research, and yet in the end, the cases will come down to one or two points. But at the same time, from the judgeís perspective, the decision that a judge makes can affect many other cases, perhaps for years to come. It seems like an awesome responsibility sometimes, yet you donít necessarily have a whole lot of time to make decisions. Is this something that can keep you awake at night?

Judge Duncan-Brice: Sometimes. But I have found that the one thing that most attorneys want me to do is to make a decision. Even if they donít like it, make a decision, and we will go on. Itís the inability to make a decision that drives attorneys crazy. And I think I am open-minded enough that if Iíve made a mistake, I revisit. But a trial has to move along, and the attorneys want you to make decisions. Thatís why, in the appellate court, the standard is abuse of discretion. Itís a little higher standard, because they know that you are making decisions quickly. Thereís going to be some harmless error in cases, just because we are all imperfect. (But) the system doesnít work unless you make decisions. And hopefully, the big ones, you do right.

Q: With the technology, do you see a day coming when most decisions will actually be litigated and decided on-line, and save the courtrooms for evidentiary hearings or for trials?

Judge Duncan-Brice: I donít know. Thatís an interesting question. Because frankly, now, all of my opinions and orders are in written opinions. Thereís no reason I canít download that on the computer. Iíve had some bad experiences. I had one time where I was doing a ruling and there was a court reporter. I made a very detailed ruling on adjudication of a lien for a bone scan with a claimed charge of $7,800.00, which ordinarily would cost about $750.00. The bone scan is the cheaper one that you do before you do an MRI or a CT scan. So it was really out of whack, this bill. And they came in after the settlement to adjudicate the lien, we had a hearing, the doctor came in, and I very carefully delineated why I thought it was unreasonable. He appealed it and the plaintiffís counsel didnít file a brief, so they didnít put the transcript of my ruling in front of the appellate court, and so I got reversed by the appellate court, and it was irritating to me because the record wasnít there. They ruled just on motions without the record of my reasoning, and so I learned after that. I now put everything in a detailed order so if they appeal it, they (the appellate court judges) know why. If they reverse me, fine, but tell me a real reason, and not a wrong reason.

Creative. Committed. Conscientious. Caring. And comfortable in her robe. Jennifer Duncan-Brice loves being a judge.

© 2018 by The Chicago Bar Association. All rights reserved. Reproduction in whole or in part without permission is prohibited. The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members.

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