1037
1 IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
2 EASTERN DIVISION
3 ERNEST T. BROWN, et al., )
)
4 Plaintiffs, )
) No. 95 C 1890
5 v. ) Chicago, Illinois
) December 2, 1997
6 CITY OF CHICAGO, ) 9:45 a.m.
)
7 Defendant. )
8 VOLUME 7
9 TRANSCRIPT OF PROCEEDINGS - TRIAL
10 BEFORE THE HONORABLE ROBERT W. GETTLEMAN
11 APPEARANCES:
12 For the Plaintiffs: KENNETH N. FLAXMAN, P.C.
122 South Michigan Avenue
13 Suite 1850
Chicago, Illinois 60603-6107
14 BY: MR. KENNETH N. FLAXMAN
15 and
16 FUTTERMAN & HOWARD, CHTD.
122 South Michigan Avenue
17 Suite 1850
Chicago, Illinois 60603
18 BY: MR. CRAIG FUTTERMAN
19 For the Defendant: MAYER, BROWN & PLATT
190 South LaSalle Street
20 Chicago, Illinois 60603
BY: MR. JAMES HOLZHAUER
21 MR. JEFFREY S. PIELL
MS. ANGELA K. DORN
22 MR. ANDREW NICELY
23 Official Court Reporter: JENNIFER S. COSTALES, CSR, RMR
219 South Dearborn Street
24 Room 1744-A
Chicago, Illinois 60604
25 (312) 427-5351
1038
Koziol - direct
1 (Proceedings in open court.)
2 THE CLERK: 95 C 1890, Ernest Brown versus City of
3 Chicago; on trial.
4 THE COURT: Good morning, everybody.
5 MR. HOLZHAUER: Good morning.
6 (Discussion off the record.)
7 THE COURT: Okay.
8 MR. FLAXMAN: Our first witness this morning is
9 Dr. Koziol.
10 THE COURT: Please raise your right hand, sir.
11 (Witness duly sworn.)
12 THE COURT: Have a seat, please.
13 LEONARD KOZIOL, PLAINTIFFS' WITNESS, SWORN
14 DIRECT EXAMINATION
15 BY MR. FLAXMAN:
16 Q. Could you state your name and spell your last name for us,
17 please.
18 A. Dr. Leonard F. Koziol, K-o-z-i-o-l.
19 Q. And what is your business or occupation?
20 A. My occupation is that of a clinical psychologist
21 specializing in clinical neuropsychology.
22 Q. And let me show you what's been marked as Plaintiffs'
23 Exhibit 136. And this is a copy of your present curriculum
24 vita, is that right?
25 A. That's correct.
1039
Koziol - direct
1 MR. FLAXMAN: And we've stipulated that that's
2 received in evidence.
3 THE COURT: Okay.
4 BY MR. FLAXMAN:
5 Q. What kind of work do you do as a neuropsychologist?
6 A. I have a diagnostic practice that specializes in the
7 assessment of problems with attention, learning, and memory.
8 Q. Okay. Let me ask that you move the microphone so I could
9 hear you better, because I have trouble. Could you -- thank
10 you.
11 Are you licensed by the State of Illinois?
12 A. I am licensed by the State of Illinois, yes.
13 Q. As a clinical psychologist?
14 A. As a clinical psychologist. I'm certified by the American
15 Board of Professional Neuropsychology in neuropsychology.
16 Q. What does it mean to be certified?
17 A. It's an examination process, essentially a peer review
18 examination process where your credentials are reviewed, work
19 samples are reviewed. You are asked to participate in various
20 examinations so your peers would grant you a certificate of
21 confidence indicating that you meet minimum standards of your
22 practice.
23 Q. And what's the highest degree that you've earned in
24 connection with your work as a neuropsychologist?
25 A. My highest degree is a doctor of psychology.
1040
Koziol - direct
1 Q. And how long have you been working as a neuropsychologist?
2 A. I've been working as a neuropsychologist since I have been
3 licensed, although I was not certified, board certified until
4 1994.
5 Q. And for how long have you been licensed?
6 A. I've been licensed since 1980.
7 Q. Now, you're not an industrial psychologist, are you?
8 A. No, I am not.
9 Q. Okay. And you're not an organizational psychologist, are
10 you?
11 A. No, I am not.
12 Q. And what kind of people do you see in the course of your
13 work? What kind of problems do they present?
14 A. I primarily see people who have problems with attention,
15 concentration, learning, and memory. That can take on a
16 variety of different forms where, you know, people might
17 complain of trouble with attention, they might complain of
18 forgetfulness, they might complain of problems with
19 comprehension, difficulties in getting things done, being
20 easily distracted, so on and so forth.
21 Q. In the course of your work, do you have occasion to see
22 people who have trouble performing on tests?
23 A. Yes, I do.
24 Q. And how did those people -- what kind of problems do those
25 people have that cause them to come to see you?
1041
Koziol - direct
1 A. Well, they oftentimes have problems with attention. They
2 oftentimes have a specific problem with attention that's
3 related to comprehension for either reading and/or
4 understanding instructions.
5 Q. And what do you do with people who come to you who have a
6 problem with tests?
7 A. Those kinds of problems can happen for a variety of
8 different reasons. So my practice is diagnostic. What I try
9 to first do is to identify the problem, then try to identify
10 the reason or the reasons for that problem occurring, and then
11 try to make appropriate recommendations about what to do about
12 it or how to get around it.
13 Q. Well, in the course of your work as a neuropsychologist,
14 have you become familiar with the mental processes that are
15 involved in answering written test questions?
16 A. Yes.
17 Q. And just briefly, how have you become familiar with those
18 mental processes?
19 A. Well, I've become familiar with those processes in two
20 ways. First, in my training as a clinical psychologist and
21 neuropsychologist, I have training in testing evaluation
22 procedures. Some of those procedures are the administration
23 and interpretation of written tests.
24 And the other part of that has to do with clinical
25 work where people come with specific problems in having
1042
Koziol - direct
1 difficulties in taking tests, for example. And I need to know
2 about tests from that perspective as well.
3 Q. Now, in connection with your work in this case, I gave you
4 some materials, is that right?
5 A. That's correct.
6 Q. And I gave you the -- what I told you was the 150
7 multiple-choice test, the job -- what I told you was the job
8 knowledge test, is that correct?
9 A. That's correct.
10 THE COURT: Are you making an objection?
11 MR. PIELL: Your Honor, at this point can we take an
12 opportunity to ask a few questions to see if this expert can
13 testify as an expert regarding the test that he's about to be
14 asked about?
15 MR. FLAXMAN: I'm still doing background.
16 THE COURT: Before you get to asking him an opinion,
17 I'll give them a chance to voir dire.
18 MR. FLAXMAN: I will do that.
19 BY MR. FLAXMAN:
20 Q. Let me show you what has been introduced into evidence as
21 Defendant's Exhibit 14. This is, is it not, is the
22 150-question multiple-choice test that I asked you to look at?
23 A. Yes, it is.
24 Q. And without telling us the nature of any opinions you
25 reached after looking at that test, did you formulate some
1043
Koziol - voir dire
1 opinions after looking at the test?
2 A. Yes.
3 Q. And, again, without telling us what the opinions are, on
4 what did you base those opinions?
5 A. I formed opinions about the mental processes that are
6 involved in the taking of this test.
7 The basis for those opinions had to do with reviewing
8 this examination and comparing that to clinical knowledge,
9 clinical literature, a clinical knowledge base.
10 Q. Now, again, without disclosing any opinions, when you were
11 forming opinions about mental processes, were you also
12 considering what it means or could mean to answer a question
13 correctly or answer a question incorrectly on that test?
14 A. Yes. That is what I mean by the mental process that's
15 involved in the taking of the test.
16 Q. Okay.
17 MR. FLAXMAN: I will tender the witness now. Thank
18 you.
19 VOIR DIRE EXAMINATION
20 BY MR. PIELL:
21 Q. Good morning, Dr. Koziol. My name is Jeffrey Piell.
22 A. Good morning.
23 Q. You issued a report setting out the topics on which you
24 will testify in this matter, is that correct?
25 A. Pardon me?
1044
Koziol - voir dire
1 Q. You issued a report setting out the topics on which you
2 were to testify in this matter, is that correct?
3 A. Yes.
4 Q. And in that report you stated that you will testify about
5 interpretive possibilities concerning a score on the Chicago
6 police lieutenants exam, is that correct?
7 A. That's correct.
8 Q. With respect to individuals who score well on an exam,
9 you'll testify that an individual who scored well possibly
10 scored well because he has or she has knowledge about the
11 material being tested or is knowledgeable about that material?
12 A. Can I consult my report?
13 Q. Sure. Do you have a copy with you?
14 A. Yes, I do.
15 Q. We can provide you with it. Actually, let me provide you a
16 copy.
17 A. I have it right here.
18 Q. Is it clean? Is there writing on it?
19 MR. PIELL: May I approach?
20 BY MR. PIELL:
21 Q. Have you written anything on the -- why don't I hand you a
22 clean copy of this.
23 MR. FLAXMAN: Judge, I think if he wants to refresh
24 his recollection, he can look at whatever he wants.
25 THE COURT: The examiner can give him anything he
1045
Koziol - voir dire
1 wants to refresh his recollection. I think it's the examiner's
2 option. I think it's perfectly reasonable to give him a clean
3 copy.
4 BY MR. PIELL:
5 Q. If you wouldn't mind putting that other copy away and
6 please refer to this copy. I've just handed you a document.
7 Can you identify what that document is?
8 A. Yes. This is the document that I submitted to Mr. Kenneth
9 Flaxman.
10 Q. Okay. And this is your report that you've presented for
11 this case?
12 A. That's correct.
13 Q. All right. Let me direct your attention to the first
14 paragraph of your report. Isn't it true that in that paragraph
15 again you state that there are three interpretive possibilities
16 concerning a score on the Chicago police lieutenants exam?
17 A. That's correct.
18 Q. Okay. Following that, you have identified in three
19 numbered paragraphs the three possible interpretive
20 possibilities for performance on the exam, correct?
21 A. That's correct.
22 Q. Okay. In the first paragraph, you discuss individuals who
23 perform well on the exam, and you suggest that the reason why
24 individuals perform well on the exam is because they are
25 knowledgeable about the subject matter being tested, correct?
1046
Koziol - voir dire
1 A. That's correct.
2 Q. In the second paragraph you address individuals who have
3 scored poorly or not well on the exam, and you suggest that the
4 possibility exists that they are not knowledgeable about the
5 material being tested, correct?
6 A. That's correct.
7 Q. And you also suggest that they are not capable or they
8 didn't study or there was some other reason why they didn't
9 perform well on the test?
10 A. Those are listed as possibilities, not exhaustive, but as
11 possibilities.
12 Q. And in the third paragraph you suggest also with respect to
13 an individual who has performed poorly on the exam, there are
14 reasons outside of a lack of familiarity with the material for
15 why they didn't perform well on the exam, correct?
16 A. That's correct, yes.
17 Q. And these are the three subject matters on which you will
18 testify here today, correct?
19 A. Yes.
20 Q. And that is the extent of what you'll testify to in
21 offering an opinion regarding interpretive possibilities for
22 performance on the exam, correct?
23 A. I will speak to these three possibilities, that's correct.
24 Q. Okay. You can put that aside.
25 Just to be clear, you are not a practicing industrial
1047
Koziol - voir dire
1 or organizational psychologist, is that correct?
2 A. That's correct.
3 Q. You have not taken any courses in the field of industrial
4 or organizational psychology, correct?
5 A. That's correct.
6 Q. You've never taken any courses in personnel selection,
7 correct?
8 A. That's correct.
9 Q. You have taken no courses in test item writing, correct?
10 A. That's correct.
11 Q. You are not an expert on personnel selection, test item
12 writing, or industrial or organizational psychology, correct?
13 A. That's correct.
14 Q. You're not an expert on test creation or test validation,
15 correct?
16 A. That's correct.
17 Q. You have never developed a personnel selection device for
18 promotions, correct?
19 A. Developed my own? No. Used, yes.
20 Q. You've never developed a personnel selection device for any
21 position in a police department or a fire department, correct?
22 A. That's correct.
23 Q. You're not going to offer any opinion here today about the
24 validity of the lieutenants exam -- the 1994 Chicago
25 lieutenants exam, correct?
1048
Koziol - voir dire
1 A. It depends upon how one defines the term "validity."
2 Q. Okay. You're not going to offer an opinion as to whether
3 the 1994 lieutenants exam was content valid, correct?
4 A. Correct.
5 Q. And you're not going to offer any opinion as to whether it
6 was valid under some construct validation, correct?
7 A. That's correct.
8 Q. And you're not going to offer some opinion as to whether it
9 was valid or not under a criterion-related validation, correct?
10 A. That's correct.
11 Q. You are going to testify here today about a cognitive
12 process known as working memory, is that correct?
13 A. That's correct.
14 Q. You are not an expert, however, on the subject of working
15 memory, correct?
16 A. I'm a neuropsychologist. And neuropsychologists use the
17 concept of working memory in their daily practice. So I don't
18 know if I would use the term "expert," but it's certainly a
19 concept that I use on a daily basis in evaluating every patient
20 that I see. So I'm --
21 Q. You recall giving a deposition in this case, don't you?
22 A. Yes.
23 Q. And do you recall being asked the following question and
24 you provided the following answer?
25 MR. PIELL: I'm on page 24 of his deposition.
1049
Koziol - voir dire
1 BY MR. PIELL:
2 Q. You were asked: "Do you consider yourself an expert on the
3 subject of working memory," and you respond "No." Do you
4 recall that testimony?
5 A. No, I don't.
6 Q. You've not done any research on working memory, have you?
7 A. Depends how you define research.
8 Q. Well, let's define it as it was defined in your -- or asked
9 to you in your deposition. Turning now to page 23 of the
10 deposition.
11 Do you recall being asked this question and providing
12 this answer:
13 "Have you done any research on working memory?"
14 "Answer: No."
15 Do you recall that testimony?
16 A. No, I'm not admitting it or denying it. I just don't
17 recall.
18 Q. Well, when you gave your deposition, you were under oath,
19 do you recall that?
20 A. Yes.
21 Q. And when you gave your deposition you endeavored to be
22 truthful and complete and honest?
23 A. Oh, that's correct, sure.
24 Q. You've not written any papers or articles or books
25 specifically on the subject of working memory, correct?
1050
Koziol - voir dire
1 A. That's correct.
2 Q. To the extent that you've done any reading or worked with
3 the working memory in your field, you're not aware of any
4 studies that link working memory to performance on tests for
5 personnel selection, is that correct?
6 A. That's correct.
7 Q. Dr. Koziol, isn't it true that you have absolutely no
8 specific knowledge concerning the duties of a Chicago police
9 lieutenant?
10 A. That's correct.
11 Q. And you have no knowledge as to what job knowledge is
12 required of a Chicago police lieutenant, do you?
13 A. That's correct.
14 Q. It's also true that you have absolutely no knowledge
15 concerning the specific duties of a Chicago police sergeant or
16 any other police officer in Chicago?
17 A. That's correct.
18 Q. And you have no knowledge concerning the specific duties of
19 any police officer in any jurisdiction, correct?
20 A. That's correct.
21 Q. Doctor, you know absolutely nothing about the population of
22 police sergeants who sat for the 1994 lieutenant exam, correct?
23 A. Correct.
24 Q. You have no knowledge who the plaintiffs are in this case,
25 correct?
1051
Koziol - voir dire
1 A. Correct.
2 Q. You don't even know who they are? You don't know their
3 names? You've never met them?
4 A. That's correct.
5 Q. You know nothing about the plaintiffs' level of education,
6 is that correct?
7 A. That's correct.
8 Q. You don't know how hard or not any plaintiff studied for
9 the 1994 lieutenant exam, correct?
10 A. That's correct.
11 Q. You don't know the intellectual capability of any of the
12 plaintiffs in this case?
13 A. Correct.
14 Q. Obviously, you've never assessed the working memory
15 capability or capacity of any of the plaintiffs in this case?
16 MR. FLAXMAN: Object to the form of the question,
17 "obviously." It's argumentative.
18 THE COURT: It's cross-examination. Overruled.
19 BY MR. PIELL:
20 Q. Do you understand the question?
21 A. Can you repeat it, please?
22 THE COURT: Well, strike the word "obviously." Take
23 it out.
24 MR. PIELL: I'll ask it again.
25 THE COURT: Repeat it.
1052
Koziol - voir dire
1 BY MR. PIELL:
2 Q. Dr. Koziol, you have no knowledge -- because you have no
3 knowledge about the plaintiffs, you have not assessed the
4 working memory of the plaintiffs, is that correct?
5 A. That's correct.
6 Q. And you haven't assessed the working memory capacity of any
7 of the candidates who sat for the 1994 lieutenants exam,
8 correct?
9 A. Correct.
10 Q. And you have absolutely no idea why any particular
11 plaintiff performed well or performed poorly on the written job
12 knowledge exam that was given with the 1994 lieutenants exam,
13 correct?
14 A. That's correct.
15 MR. PIELL: Your Honor, the defendant objects to
16 Dr. Koziol testifying as an expert in this regarding working
17 memory, test performance, personnel selection or any other
18 matter relevant to this case.
19 THE COURT: Mr. Flaxman, what is he going to testify
20 about?
21 MR. FLAXMAN: He's going to testify -- he's not going
22 to testify about any of those things to which they object to
23 him testifying.
24 THE COURT: I didn't ask you what he's not going to
25 testify to.
1053
Koziol - direct
1 MR. FLAXMAN: He's going to testify -- he's going to
2 be asked -- well, why don't we do an offer of proof? Maybe
3 that's the best way.
4 THE COURT: Maybe that's the way to do it. It's a
5 bench trial. I would normally -- if this were a jury trial, I
6 would probably read his report before I would rule on it. So
7 why don't we go ahead with the testimony. Do it as an offer of
8 proof.
9 If it's not relevant -- right now I'm very curious as
10 to what he's going to testify about, because all of the things
11 Mr. Piell has just gone over seem to me to be almost universal
12 subjects. But I don't know what you have in mind, Mr. Flaxman.
13 So go ahead. I'll let him testify.
14 MR. FLAXMAN: Thank you.
15 BY MR. FLAXMAN:
16 Q. Now, you were asked to give an opinion about, as Mr. Piell
17 told you, about what, if anything, it means that someone taking
18 that test, that 150-question multiple-choice test got a
19 particular question wrong. And what is your opinion about
20 that? What does it mean if somebody gets a question wrong?
21 A. It means the response is scored incorrectly. It tells you
22 nothing about the reason for that incorrect response.
23 Q. Well, does it necessarily mean that the person who got the
24 question wrong does not know the answer to the question?
25 A. It does not give you that information, no.
1054
Koziol - direct
1 Q. Why is that?
2 A. Because there are other processes involved in the reading
3 and comprehension of the question and in the reading and
4 comprehension of the answer possibilities that could affect the
5 response.
6 Q. Now, by "other processes," what do you mean?
7 A. I mean that in the reading of a question, a person has to
8 comprehend all of the statements that are involved in the
9 paragraph that comprises the question. All of that information
10 has to be kept in the individual's what's called working
11 memory, so to speak, while all of the answer possibilities are
12 also read, evaluated, and considered.
13 That information then has to be compared to the
14 question in order to give the correct response. That is a
15 process that depends totally upon the person's working memory
16 in the here and now, which is another way to describe reading
17 comprehension.
18 Q. Okay. Let me ask you to look at question 77. I think you
19 still have that in front of you.
20 A. Yes, I do.
21 Q. Could you find --
22 MR. PIELL: Your Honor, before we go any further,
23 I'll object to any questions about specific items on the test.
24 At the deposition of Dr. Koziol, Mr. Flaxman stipulated on the
25 record that he will not be asking any questions of Dr. Koziol
1055
Koziol - direct
1 regarding specific test items on direct testimony at trial.
2 And based on that stipulation or declaration, no further
3 questions were asked about items on the test at deposition.
4 MR. FLAXMAN: He's not going to be asked about test
5 items per se. He's going to be asked to illustrate what he
6 just said about reading comprehension and working memory and
7 understanding things.
8 THE COURT: Let me see the stipulation, Mr. Piell.
9 MR. PIELL: Shall I hand it up to you?
10 THE COURT: Please.
11 MR. PIELL: Page 94 of the deposition.
12 THE COURT: I don't understand your last comment.
13 MR. FLAXMAN: The context in which that stipulation
14 was made was in Dr. Koziol's -- in the context of Dr. Koziol's
15 report where he stated that the answers -- that there were two
16 questions that had more than one correct answer. And that was
17 based on information he had been given by counsel, which we're
18 no longer relying on. That's what that stipulation was
19 directed to.
20 He's not going to say that this is an ambiguous
21 question because there is more than one correct answer. I'm
22 asking him now to illustrate his testimony about working memory
23 and facts and information, which is different than what I
24 thought the stipulation was about, that question being
25 ambiguous or having more than one correct answer.
1056
Koziol - direct
1 THE COURT: You say in this on page 94, "I will state
2 that I don't intend Dr. Koziol's direct examination to cover
3 particular questions, even the two mentioned in his report."
4 That's sort of a universal stipulation.
5 Now, are you attacking these questions or are you
6 just doing this to illustrate a point?
7 MR. FLAXMAN: I'm just doing it to illustrate a
8 point.
9 THE COURT: I'll let him do it to illustrate the
10 point. I need some illustration, I guess.
11 MR. FLAXMAN: Thank you.
12 BY MR. FLAXMAN:
13 Q. To illustrate, perhaps to try to illustrate your testimony,
14 question 77, could you look at -- do you have question 77 in
15 front of you?
16 A. Yes, I have it in front of me.
17 Q. Now, what are the mental processes that someone goes
18 through in reading that question or a question of that nature?
19 A. A question of this nature is written in a paragraph form.
20 It contains several sentences. Some of those sentences are
21 actually compound sentences. So they contain several different
22 ideas.
23 So in order to answer that question correctly, the
24 individual who takes the test has to understand and keep in
25 their mind -- while they are reading all the possibilities,
1057
Koziol - direct
1 they have to keep in mind all of the relevant information in
2 that paragraph.
3 They then have to go through all of the
4 possibilities, the answers A through E, and compare that to all
5 of the relevant information in the question. So it's a very
6 demanding task in terms of trying to comprehend what is
7 actually read, trying to comprehend the point of the matter.
8 Q. Now, in your work, have you come across people who are
9 successful in their professions who have difficulty in
10 answering multiple-choice questions of the type that you just
11 looked at?
12 A. These are common kinds of problems that individuals
13 experience.
14 Q. Is there a common kind of an accommodation that's provided
15 to people who have this kind of problem?
16 A. Well, it depends. Sometimes the accommodation consists of
17 being allowed to take the test in an untimed way. The
18 comprehension problem can sometimes be compensated for by
19 allowing the person to read and reread the questions at their
20 own pace. But then what has to be done is to allow them
21 greater time to be able to complete it. So that's one
22 accommodation that can be made.
23 Another accommodation that can be made is to try to
24 test individuals in a different format. That may be in an oral
25 format.
1058
Koziol - direct
1 Q. Now, have you ever come across anyone in your clinical work
2 who was in a profession where they had to make split-second
3 decisions, but they were unable to answer multiple-choice
4 questions like this?
5 A. Well, sure. Those are different processes that are
6 involved.
7 Q. What do you mean by that?
8 A. Well, in the process of comprehending a test question, all
9 of the relevant information that I am reading about the
10 question, I'm dependent upon keeping all of that in my head.
11 It is a pure on line memory process in the here and now. And
12 that's all you have to rely on. So if there is a breakdown in
13 that process in any part of it, a person is going to have
14 difficulty answering that correctly.
15 That is in contrast to a routine day-to-day
16 on-the-job type situation, because interactions that we have in
17 a practical way oftentimes gives us cues as to how to respond
18 to that situation. So we can have concrete cues about how to
19 respond. There is something about the situation that may give
20 us a key that will help us understand the situation that is
21 absent from the process of taking multiple-choice tests.
22 Q. Now, does taking a test question of the type that you've
23 read and running it through a computer program which gives you
24 a vocabulary recognition level, does that give you assurance
25 that a person of average reading comprehension will be able to
1059
Koziol - direct
1 answer a question like this?
2 MR. PIELL: Objection, Your Honor. There has been no
3 foundation laid as to this computer program he's talking about
4 or vocabulary or reading comprehension in terms of a computer
5 program. I think a foundation needs to be laid before he can
6 testify about it.
7 MR. FLAXMAN: Actually, that's in response to
8 testimony from Dr. Barrett when he mentioned the Flesch Kincaid
9 scale, how we analyzed all these things.
10 MR. PIELL: Dr. Koziol wasn't here for Dr. Barrett.
11 We have no idea if Dr. Koziol has any information or knowledge
12 about this subject matter.
13 THE COURT: Overruled.
14 BY MR. FLAXMAN:
15 Q. Well, let me give you maybe a foundation question.
16 Are you familiar with computer measurements of
17 vocabulary recognition level?
18 A. Yes.
19 Q. And does the Flesch scale or the Flesch Kincaid scale come
20 in under that umbrella?
21 A. I believe it does, yes.
22 Q. And is vocabulary recognition different than reading
23 comprehension?
24 A. Yes.
25 Q. And how is it different?
1060
Koziol - direct
1 A. Reading recognition measures -- measures an individual's
2 ability to read a word. That is separate from an individual's
3 comprehension of that word and/or separate from an individual's
4 comprehension of that word within sentences.
5 Q. Now, if there is confusing language in a question, would
6 that have any impact on a person's ability to answer the
7 multiple-choice question?
8 A. Yes. That is because ambiguous wordings typically tax an
9 individual's working memory, because the material that they're
10 reading doesn't make sense to begin with.
11 Q. Now, let's assume that you had a dangling participle, you
12 had a question that started, "While driving down a city street
13 on duty," comma, "a car pulled out in front of District
14 Commander Wilson."
15 Is that what you meant by syntactic ambiguity?
16 A. That is an ambiguous item where the way the item is written
17 it is impossible to tell who was driving, what pulled out, or
18 who was doing what, which would cause an individual to reread
19 that item several times over, because it is impossible to
20 determine what is the subject and what is the predicate.
21 MR. PIELL: Your Honor, before the next question
22 comes, we'll object again to the extent that he's asking about
23 language used in any particular test item. Again, it goes to
24 the stipulation he made at deposition.
25 MR. FLAXMAN: I was just using that to illustrate as
1061
Koziol - direct
1 a syntactic ambiguity.
2 Thank you. I have no further questions.
3 MR. PIELL: Your Honor, before we cross, the City
4 would like to object to the relevance of Dr. Koziol's
5 testimony. His testimony does not go to the issue of whether
6 the exam was related to the job of lieutenant. It does not go
7 to whether there is any alternatives to the exam. These are
8 the two main issues of the case. And his testimony does not
9 even come close to talking about either of them.
10 MR. FLAXMAN: Would you like a response?
11 THE COURT: I'd like you to.
12 MR. FLAXMAN: Excuse me?
13 THE COURT: I would like you to respond.
14 MR. FLAXMAN: Well, all right.
15 Dr. Barrett testified that his written job knowledge
16 test does not measure reading comprehension. If we look in
17 Dr. Barrett's report, which is Defendant's Exhibit 1,
18 Dr. Barrett reports research that he did which establishes that
19 police performance is not related to reading comprehension.
20 We now have evidence that the written job knowledge
21 test is a test of reading comprehension, which goes to the job
22 relatedness of the test. If the test measures reading
23 comprehension, is a reading comprehension test, as we now have
24 evidence that it is, and reading comprehension, Dr. Barrett
25 says, is not related to performance as a police officer, I
1062
Koziol - cross
1 think we have a complete case that the written job knowledge
2 test is not job related.
3 MR. PIELL: Your Honor, we don't have evidence that
4 it's a reading comprehension test. For that you could have
5 brought an English teacher in to testify about this.
6 This is a witness who knows nothing about the police
7 force, knows nothing about the job of lieutenant, knows nothing
8 about the job of sergeant, knows nothing about the information
9 they know or should know to be a lieutenant. To claim that
10 this is an outright reading comprehension test, I don't believe
11 there is evidence to that effect.
12 Also, there is a lack of foundation for this witness
13 in this testimony. Again, he knows nothing about the police
14 department, nothing about this exam in particular. He knows
15 nothing about any of the plaintiffs. He knows nothing about
16 any of the candidates who took this test.
17 THE COURT: All right. You've made your point.
18 Overruled. Go ahead.
19 CROSS-EXAMINATION
20 BY MR. PIELL:
21 Q. Dr. Koziol, you're not offering an opinion here today of
22 whether there was enough time allotted for completion of the
23 1994 lieutenants exam, are you?
24 A. No, I am not.
25 Q. You testified on direct about an individual who may or may
1063
Koziol - cross
1 not have -- or strike that.
2 You testified about an individual who did not perform
3 well on the exam and the reasons for why that individual may
4 not have performed well. I just want to be clear with respect
5 to your opinion.
6 You agree that one possible explanation of why a
7 candidate scored poorly on the written component of the exam is
8 that they simply did not know the material that was being
9 tested, correct?
10 A. Within the limits of your question, that's correct.
11 Q. Okay. Well, within the limits of your report, did you not
12 state that one possible explanation as to why an individual did
13 not perform well on the 1994 lieutenants exam is that they did
14 not know the material that was being tested?
15 A. I said that was one reason, correct.
16 Q. Correct. And another reason is that an individual --
17 another reason why an individual scored poorly on the exam is
18 because they did not study for the exam, correct?
19 A. I listed that as one possibility, that's correct.
20 Q. And another possibility you listed is that somebody lacks a
21 certain level of mental capability as a reason why they didn't
22 perform well on the exam, correct?
23 A. The point that I made was that a --
24 Q. Is that correct, sir? Sir, is that correct in your report,
25 that was one of the possibilities?
1064
Koziol - cross
1 THE COURT: Can you answer that yes or no?
2 THE WITNESS: I'm sorry, if you could repeat the
3 question?
4 BY MR. PIELL:
5 Q. Another possibility you listed in your report as to why an
6 individual may have performed poorly on the exam is that they
7 simply did not -- I'm sorry -- that they lacked the level of
8 mental capability in order to perform well on that exam?
9 A. That's one possibility, correct.
10 Q. Okay. Another possibility is that they -- that they didn't
11 perform well was because they lacked basic reading
12 comprehension skills, correct?
13 A. That's correct.
14 Q. You have no idea which candidates performed poorly on this
15 test because they didn't know the subject matter, or they
16 didn't study hard enough, or they lacked sufficient
17 intellectual ability, or they lacked reading skills, is that
18 correct?
19 A. That's correct.
20 Q. And you conducted no study whatsoever to determine why
21 individuals who performed poorly on the exam performed poorly
22 on this exam?
23 A. That's correct.
24 Q. Now, with respect to the cognitive processes you were
25 talking about on this exam and this concept of working memory,
1065
Koziol - cross
1 you suggested that one possible reason people didn't perform
2 well on this exam was because of a breakdown in working memory,
3 correct?
4 A. That's correct.
5 Q. You do not know which or -- strike that.
6 You do not know whether any candidate who took the
7 1994 lieutenants exam had a breakdown in their working memory,
8 do you?
9 A. That's correct.
10 Q. And you don't know if any of the plaintiffs had a breakdown
11 of working memory while they took this 1994 lieutenants exam,
12 do you?
13 A. No, I don't. That's correct.
14 Q. And you have absolutely no idea which candidates who took
15 this exam had greater or lesser working memory capacity, do
16 you?
17 A. No, I do not.
18 Q. You have absolutely no knowledge or information as to
19 whether the relative working memory capacity differed from
20 group to group by racial groups among the candidates who took
21 this 1994 exam, do you?
22 A. No, I do not.
23 Q. Now, you testified that working memory is a mental process
24 that is utilized in answering multiple-choice exam questions,
25 correct?
1066
Koziol - cross
1 A. That's correct.
2 Q. Working memory is also a mental process that's used in many
3 facets of day-to-day life, right?
4 A. Aspects of it, that's correct.
5 Q. Okay. Any time that you read something, working memory is
6 involved to some extent, correct?
7 A. To some extent, that's correct.
8 Q. In your deposition, you explain that working memory assists
9 individuals in relating one bit of information to another bit
10 of information for the purpose of learning it, retaining it,
11 and retrieving it on subsequent occasions, is that correct?
12 A. That's one of the mechanisms that allows for that, that's
13 correct.
14 Q. And you agree that working memory is an essential feature
15 of learning and subsequent memory processes, correct?
16 A. Within the limits of your question, that's correct.
17 Q. Well, at deposition didn't you testify that working memory
18 is an essential feature of learning and subsequent memory
19 processes?
20 A. Within the limits of that question, that was probably
21 correct, too.
22 Q. You agree that all individuals rely on working memory to
23 some extent to function as human beings, correct?
24 A. Yes, that's correct.
25 Q. People need working memory to perform in their jobs, do you
1067
Koziol - cross
1 agree?
2 A. Aspects of it, that's correct.
3 Q. People rely on working memory capacity when they're doing
4 many things at once at work, correct?
5 A. That's correct.
6 Q. And this -- you have no reason to believe that this would
7 not include police lieutenants, correct? That they need some
8 working memory capacity in order to function at many different
9 responsibilities on their job?
10 A. That's correct.
11 Q. For example, using this police lieutenant as an example,
12 you would agree that working memory would be vital in a
13 situation where a lieutenant is driving a police car at the
14 same time they are monitoring a police radio for calls at the
15 same time they're making decisions about the information
16 they're receiving over the radio, isn't that correct?
17 A. That's a different kind of working memory. But, yes,
18 that's correct.
19 Q. And it's different, you're saying, than taking a
20 multiple-choice question test?
21 A. It's different than reading comprehension. That's exactly
22 right, sure.
23 Q. You would agree that someone with a higher greater working
24 memory capacity would be better able to handle multiple tasks,
25 such as driving and listening to the radio and making decisions
1068
Koziol - cross
1 at the same time, correct?
2 A. Some of that would be task dependent. So within the focus
3 of your question, that would be correct. But that would prefer
4 a broader, a broader limit.
5 Q. Let's take a look at a question or a situation where an
6 individual has to do some reading on the job. Let's again
7 stick with the police lieutenant example.
8 A lieutenant, we'll assume, is faced with a factual
9 situation that they don't know how to deal with when they get
10 that information. And they need to look up some information to
11 figure out how to respond. Okay? Do you understand so far my
12 assumption?
13 A. I think I followed it.
14 Q. Okay. And this individual, in order to answer the
15 question, needs to look up the information in, say, a statute
16 or a guidebook or a contract. Okay. That's the hypothetical
17 and the assumption that we're working from.
18 That individual would need to use working memory in
19 that situation, isn't that correct?
20 A. That's correct.
21 Q. Okay. Let's break up the task. The lieutenant must first
22 receive the information from whatever source, whether it be off
23 the radio or from another officer and retain that information,
24 correct?
25 A. That's correct.
1069
Koziol - cross
1 Q. And once they have heard this information, retained the
2 information and decided they don't know how to respond, they
3 then need to go somewhere to look up the information, correct?
4 A. That's correct.
5 Q. And they would need to know where to go to look up this
6 information, correct?
7 A. That's correct.
8 Q. And when they find the source that they believe they can
9 find the answer, they then have to look through that source to
10 find the information they need to answer the specific factual
11 scenario that was presented to them, correct?
12 A. That's correct.
13 Q. And once they find the relevant provision or section in
14 that guidebook or contract or statute, they then must apply the
15 information in that text to the factual scenario they have been
16 presented with, correct?
17 A. That's correct.
18 Q. And these steps that I've just set forth with you, they
19 require a working memory capacity, correct?
20 A. They require a type of working memory capacity.
21 Q. Well, they have been presented with information, they have
22 had to keep that information on line while they looked up
23 information to apply -- they have had to keep information --
24 I'm sorry. Strike that.
25 An individual in this scenario has to receive factual
1070
Koziol - cross
1 information from an outside source, whether by reading or by
2 listening. They have to keep that information on line while
3 they go research an answer to the situation. And while keeping
4 that information on line, they have to find the specific
5 provision that responds to that factual scenario?
6 MR. FLAXMAN: Object to the compound question.
7 MR. PIELL: It's not a compound question. We're
8 repeating back to him where he -- repeating back to him the
9 exact questions we went through.
10 THE COURT: Do you understand the question?
11 THE WITNESS: Vaguely. I believe I understand his
12 point.
13 THE COURT: Can you answer it yes or no?
14 MR. PIELL: I don't think I've gotten to a question
15 yet.
16 THE COURT: Well, I thought you were putting a
17 proposition to him. I think you better start over then. It's
18 a very long question. Try to break it down.
19 MR. PIELL: Okay.
20 BY MR. PIELL:
21 Q. The steps that we went through regarding this factual
22 scenario where an individual is getting information, either
23 from a radio or from a police officer, and they need to keep
24 that information on line while they go research the answer or
25 proper response to that information. And that individual has
1071
Koziol - cross
1 to research and find the proper answer and then apply the
2 section from the statute or the guidebook or the contract to
3 the factual scenario that's been presented to them. That
4 involves working memory capacity, correct?
5 A. That's true, yes.
6 Q. You stated on direct that you've been involved in your
7 practice with individuals who may not perform well on tests but
8 are functioning in their jobs in the real world, correct?
9 A. That's correct.
10 Q. Okay. You have done no -- strike that.
11 You have no knowledge, firsthand or otherwise,
12 whether someone you define as having test taking, or lacking
13 test taking skills or has difficulty in taking tests, whether
14 that type of individual would be a capable, competent
15 lieutenant in the Chicago Police Department, do you?
16 A. Your question was: Do I have any direct knowledge of an
17 individual who has poor test taking skills, as to whether or
18 not they would be a good police officer? Is that what your
19 question essentially stated?
20 Q. Well, let's ask that question. Can you answer that
21 question?
22 A. I have no direct knowledge that ties those two together,
23 that's correct, yes.
24 Q. Can you tell me what the Flesch Reading Ease Scale is?
25 A. I believe that is the scale where a document or a paragraph
1072
Koziol - redirect
1 is typed into a computer, and the computer does an analysis in
2 terms of the recognition, vocabulary level that is necessary to
3 read that given material.
4 Q. Okay. Do you know what the Flesch Kincaid Reading Level
5 Scale is?
6 A. The reading level scale?
7 Q. Yes.
8 A. I believe that refers to difficulty level of the stimulus
9 material.
10 Q. Do you believe they're one and the same, the ease scale and
11 the reading level scale?
12 A. I do not know.
13 Q. Okay. Have you worked with the Flesch Reading Ease Scale
14 or Flesch Kincaid Reading Level Scale in the last five years?
15 A. No.
16 MR. PIELL: That's all I have. Thank you.
17 THE COURT: Thank you.
18 REDIRECT EXAMINATION
19 BY MR. FLAXMAN:
20 Q. What is the difference in working memory between answering
21 a multiple-choice question and doing those other tasks that
22 Mr. Piell asked you about? Hearing something on the radio,
23 having to look it up, looking it up, and then --
24 A. In a reading comprehension test doing a multiple-choice
25 test, reading comprehension is a fundamental capacity. All of
1073
Koziol - redirect
1 the information on a reading comprehension test comes to the
2 individual through the same modality; namely, their ability to
3 read that material and to keep all of that material in their
4 head at the same time regardless of how simple or regardless of
5 how complicated that material is. That is in reading. So it's
6 all dependent upon a person's visual reading skill.
7 In the example that was given, which I was asked to
8 contrast now, the information comes to an individual from
9 different modalities, which is one difference.
10 The other thing is that some of that information
11 would allow a person to remember that information in what's
12 called short-term or longer-term memory, which is very
13 different from a concept of working memory. So the example
14 that was given to me was, I believe, confounded by other
15 issues.
16 Q. Well, is hearing something over the radio different than
17 reading it?
18 A. Oh, yes, it is.
19 Q. How is that?
20 A. It depends upon oral comprehension.
21 Q. Okay.
22 A. For example, people will sometimes say that they can
23 comprehend things easier when they listen to them than when
24 they read them. Sometimes people prefer to learn or to listen
25 to lectures when they drive in their car rather than reading
1074
Koziol - redirect
1 similar material out of a book, because they can understand
2 something or comprehend something better by listening than they
3 do from reading.
4 That's the kind of difference that we're talking
5 about with those examples.
6 Q. Is there an accommodation for people with test taking
7 problems to have questions read to them?
8 A. That's one accommodation, yes.
9 Q. And you were also asked about capable, competent lieutenant
10 with poor test taking skills. Do you have firsthand knowledge
11 of people in critical professions who have done well but who
12 have poor test taking skills?
13 A. Yes.
14 Q. And what kind of firsthand knowledge do you have about
15 that?
16 A. I have had the opportunity to see pilots, for example, who
17 are not necessarily good at paper-pencil testing but are very,
18 very good at their occupations, what they do, flying airplanes
19 and teaching others how to fly airplanes.
20 Q. And have you seen pilots in the course of your practice?
21 A. Yes, I have.
22 Q. Other than people you see in your practice, have there been
23 noteworthy people who have had trouble with reading
24 comprehension?
25 A. Reading comprehension and attention troubles, yes, sure.
1075
Koziol - recross
1 Q. Could you give us some examples of who you mean?
2 A. People who have reviewed the biographical material of
3 Albert Einstein believe that he had attention deficit disorder
4 of a very specific type.
5 People who have reviewed the biographical material of
6 Winston Churchill believe that he had problems with attention,
7 comprehension.
8 Q. You mentioned attention deficit disorder.
9 A. Oh, I'm sorry.
10 Q. Is that one of the things that people have who have
11 problems answering reading comprehension questions?
12 A. Many people with attention deficit disorder have an
13 associated reading comprehension problem. People who have
14 reading comprehension problems don't necessarily have attention
15 deficit disorder.
16 Q. Is attention deficit disorder also related to the
17 difficulty in answering multiple-choice questions?
18 A. It can be, yes.
19 MR. FLAXMAN: I have nothing further.
20 MR. PIELL: Just a few questions.
21 RECROSS-EXAMINATION
22 BY MR. PIELL:
23 Q. Dr. Koziol, you don't know whether any of the plaintiffs
24 who took the 1994 lieutenants exam have attention deficit
25 disorder, do you?
1076
Koziol - recross
1 MR. FLAXMAN: It's beyond the scope of redirect.
2 MR. PIELL: There were several questions about
3 attention deficit disorder.
4 MR. FLAXMAN: But it's clear he doesn't know anything
5 about any employment.
6 THE COURT: I think that is established.
7 MR. PIELL: That's fine.
8 BY MR. PIELL:
9 Q. Going back to the hypothetical that you and I discussed and
10 then Mr. Flaxman asked questions about it, let's change the
11 hypothetical so the individual is simply reading information
12 off of a page. That's how they're collecting information, off
13 either an arrest report or a report that comes across their
14 desk. And they then need to find an answer to the problem
15 that's posed in writing and then need to apply the information
16 that they find to that written information.
17 That is the type of working memory that's involved in
18 a multiple-choice test, is it not?
19 A. You are correct. That is the type of working memory
20 component that is involved in the test.
21 MR. PIELL: Nothing further.
22 THE COURT: Thank you.
23 BY MR. FLAXMAN:
24 Q. How is --
25 THE COURT: That's all. That's enough.
1077
1 MR. FLAXMAN: I'm sorry.
2 THE COURT: You're excused, sir. Thank you very
3 much.
4 (Witness excused.)
5 MR. FLAXMAN: My next witness is outside.
6 While we're waiting, Mr. Futterman is arguing an
7 appeal, and that's why he's not here.
8 Our next witness, Your Honor, is Lieutenant Maurice
9 Brown.
10 MR. PIELL: Your Honor, before this witness takes the
11 stand, we do object to Lieutenant Brown being called as a
12 rebuttal witness in this case. He was identifiable, readily
13 identifiable as a potential witness in this case well before
14 the final pretrial order was filed here. He testified at the
15 preliminary injunction hearing. He was on the original list
16 presented by Mr. Flaxman that included 180 witnesses. He
17 decided to pare the list down to the 19 or so witnesses. And
18 Lieutenant Brown was not put on that list.
19 So to suggest that he was not identifiable before, I
20 don't think he can make that suggestion. And to call him now
21 rebuttal witness is an end around to the requirement of the
22 pretrial order requirements.
23 MR. FLAXMAN: Final pretrial order, the rule that
24 I've noticed, doesn't require to identify rebuttal witnesses.
25 And he is a legitimate rebuttal witness responding to things
1078
Brown - direct
1 that have come from testimony.
2 MR. PIELL: If he could tell us what he's going to be
3 rebutting, we might withdraw our objection.
4 MR. FLAXMAN: Again, it would be easier to do it with
5 an offer of proof rather than -- it's going to be short.
6 THE COURT: Take the stand, please. Please raise
7 your right hand.
8 (Witness duly sworn.)
9 THE COURT: Have a seat.
10 MAURICE BROWN, PLAINTIFFS' REBUTTAL WITNESS, SWORN
11 DIRECT EXAMINATION
12 BY MR. FLAXMAN:
13 Q. Would you state your name, please, and spell your last
14 name.
15 A. My last name is spelled Brown, B-r-o-w-n. My name is
16 Maurice E. Brown.
17 I'm a lieutenant with the Chicago Police Department.
18 Q. And for how long have you been employed by the Chicago
19 Police Department?
20 A. I was employed on the Chicago Police Department 18 December
21 1967.
22 Q. And for how long have you been a lieutenant?
23 A. I was promoted May 3rd, 1984.
24 Q. And have you worked as a field lieutenant that entire time?
25 A. Field lieutenant, as well as a watch commander. And CO of
1079
Brown - direct
1 Cabrini-Green, and also worked as district commander in his
2 absence.
3 Q. And how many -- how many times have you worked as a watch
4 commander?
5 A. Too many. I don't have the number. But I've worked as a
6 watch commander.
7 Q. Do you know anybody who took the 1994 lieutenants test?
8 A. Yes, I do.
9 Q. And do you know -- of the people you know who took it, do
10 you know anybody who studied general orders for it?
11 A. Yes, I do.
12 Q. Did you do anything to help anybody study general orders
13 for the 1994 lieutenants test?
14 A. Yes, I did. I conducted off-duty study groups.
15 Q. Okay. And what is a study group?
16 A. A study group consists of studying general orders, special
17 orders, department directives, municipal code, criminal law
18 procedures, policies and procedures of the police department as
19 a responsibility that pertains to the officers or the sergeants
20 or the lieutenants of what their responsibilities are.
21 Q. How many people -- how often did your study group meet?
22 A. We met on Wednesdays and Sundays prior to the '94 exam.
23 Q. And did the study group start before the exam had been
24 announced?
25 A. Yes, it did. It started three months --
1080
Brown - direct
1 MR. PIELL: Your Honor, at this time we renew our
2 objection to the rebuttal nature of this testimony. There has
3 been no testimony put forward by the City regarding study
4 groups. I don't see what he is rebutting at this point.
5 MR. FLAXMAN: Dr. Barrett -- do you want a response?
6 THE COURT: Sure.
7 MR. FLAXMAN: Dr. Barrett testified in response to a
8 question of Your Honor why minorities didn't do as well, "Well,
9 I guess they didn't study as hard." This is evidence about how
10 everybody was studying as hard as they could.
11 MR. PIELL: Your Honor, I think if you go back and
12 look at the transcript, it was plaintiffs' own expert
13 Mr. Bishop who suggested that possibly people didn't study for
14 the exam, and that's why they didn't succeed on the exam. If
15 Lieutenant Brown is being offered to rebut the plaintiffs'
16 expert, then let the record reflect that.
17 THE COURT: Overruled.
18 Go ahead, Mr. Flaxman.
19 BY MR. FLAXMAN:
20 Q. How many people -- well, the people who have come -- how
21 many sergeants came to your study groups for the 1994
22 lieutenants test?
23 A. Well, I had a number of them. We conducted at Malcolm X
24 College on Wednesdays and we conducted at Kennedy King College
25 on Sundays. But I believe we had over 225.
1081
Brown - direct
1 Q. And --
2 A. That registered to study with us.
3 Q. Did you try to cover every general order on the reading
4 list in the study groups?
5 A. We did a very unusual thing. We started having them study
6 the general orders 3418, all the way up until the reading list
7 actually came out for the Chicago Police Department upcoming
8 examination in '94.
9 Q. Did you study every general order?
10 A. We studied every general order, every special order.
11 Q. Was there homework?
12 A. Yes, there was homework assignments.
13 Q. And did anybody do their homework?
14 A. They did their homework.
15 Q. Everybody do their homework?
16 A. Majority of them.
17 Q. Okay. Was it your impression that the -- well, were the
18 people who were in your study groups predominantly
19 African-American?
20 A. Mostly was African-American. But it was open to every
21 creed, color, religion. We sent notification to everybody else
22 about the study group.
23 Q. And was it your impression that the minority sergeants
24 weren't studying hard for the test?
25 A. I disagree.
1082
Brown - direct
1 Q. Were they studying hard for the test?
2 A. Yes, they were.
3 They were also given answers. They took the
4 examination at these different locations, Kennedy King and
5 Malcolm X. We also gave them answers to the correct questions
6 that we had made up from the general orders.
7 Q. In the course of your work as a field lieutenant -- and
8 that's been for 13 years now?
9 A. Yes.
10 Q. Have you had to know everything that's in all those general
11 orders you were studying for the study groups?
12 A. No.
13 Q. Have you ever had to look anything up in a general order?
14 A. Yes, you have to.
15 Q. How about statutes, have you ever had to in your work as a
16 field lieutenant look things up in a statute?
17 A. Yes, you have.
18 Q. Would the same be true for the special orders?
19 A. Yes, it would be.
20 Q. And municipal code, ever had to look anything up in the
21 municipal code?
22 A. Yes, I have.
23 Q. Excuse me?
24 A. To get the correct spelling and things of that magnitude
25 when you do a complaint.
1083
Brown - direct
1 Q. Now, in your -- in your work as a watch commander, have you
2 ever conducted roll call?
3 A. Yes, I have.
4 Q. Have you ever conducted roll call training?
5 A. Yes, I have.
6 Q. How many times have you done that?
7 A. You do it normally about two or three times a week when a
8 new general order come out or a special order come out.
9 Q. Well, in the 14 -- in the 13 years that you've been a
10 lieutenant, about how many times have you conducted roll call?
11 A. A total?
12 Q. Yes.
13 A. That's hard, that's hard to say. I've been -- the only
14 time I have off is vacation and days off. I work six days a
15 week with two days off.
16 Q. Do you conduct roll call when you're not working as watch
17 commander?
18 A. No, I don't conduct roll call when I'm not working as a
19 watch commander.
20 Q. Do you go to roll call when you're not working?
21 A. I go to roll call with the watch commander.
22 Q. So have you been to roll call every day you've been working
23 as a field lieutenant?
24 A. Yes, I have, the majority.
25 Q. Now, before you testified here today, did you have a chance
1084
Brown - direct
1 to look at the oral component of the 1994 lieutenants test?
2 A. Yes, I took a look at that.
3 Q. Is that anything at all like conducting roll call?
4 A. I would disagree with it.
5 Q. Why is that?
6 A. I would disagree because mostly the information that I've
7 looked at, that usually goes through our gang and tactical unit
8 from the commander. If the commander wants us to address that,
9 and usually the gang or tac lieutenant who's responsible for
10 the gang and tac, they sometimes they have made a periodic call
11 to discuss about a new gang. But we only read off the special
12 order.
13 Q. Did you ever have to review 20 or so pages of material
14 before roll call?
15 A. No. No more than three or four.
16 Q. Okay. When you have been working as a watch commander,
17 have you ever had to pick up a shooting investigation that
18 another watch commander started?
19 A. I've handled numerous police shooting investigations.
20 Q. Well, do you start them and stay on duty until you finish
21 them?
22 A. I stay on duty until I finish my report. That's required
23 by general order.
24 Q. Okay. You can't just leave at the end of your duty and let
25 the next watch commander finish it?
1085
Brown -
1 A. I have to stay until I complete a thorough investigation.
2 MR. FLAXMAN: I have nothing further. Thank you.
3 MR. PIELL: Your Honor, we have no questions for this
4 witness.
5 THE COURT: If you got sick in the middle of your
6 watch, and you were in the middle of a shooting investigation,
7 what would happen then?
8 THE WITNESS: I would have to tell the first deputy
9 operation command. And that has happened to me, but I stayed
10 on. It was involving one of our officers that got killed. And
11 I was emotionally shook up about it, but I stayed on. I'm
12 pretty tough.
13 THE COURT: Yeah. But I mean, if you got sick, and
14 you were incapacitated and had to leave?
15 THE WITNESS: I would have to notify operation
16 command so they can send another lieutenant from another
17 district, another watch commander which could be a captain of
18 police. I've been working out of grade as a captain of police,
19 really a watch commander as a captain of police. But myself,
20 they have designated since '93 that lieutenants can be watch
21 commanders since they started a new program called CAPS, but I
22 would have to call operation command so they can get another
23 lieutenant to replace me.
24 THE COURT: All right. He would have to take over
25 that investigation?
1086
Brown -
1 THE WITNESS: Yes, he would.
2 THE COURT: That was a hypothetical in the test. Did
3 you ever look at the test?
4 THE WITNESS: No. I never looked at the exam.
5 THE COURT: Well, I thought you did. You just
6 said --
7 THE WITNESS: No. I looked at the oral.
8 THE COURT: At the oral.
9 THE WITNESS: The oral presentation, not the actual
10 exam.
11 MR. FLAXMAN: That was the in-basket.
12 THE COURT: That was the in-basket. All right. I'm
13 getting them confused.
14 All right, Lieutenant. Thank you very much. You're
15 excused.
16 (Witness excused.)
17 MR. FLAXMAN: Thank you. Our next witness is
18 Plaintiff Holly Robinson.
19 THE COURT: Do you want to pick up your exhibits,
20 Mr. Flaxman.
21 MR. FLAXMAN: Yes, Judge. Thank you.
22 THE COURT: Please raise your right hand.
23 (Witness duly sworn.)
24 THE COURT: Have a seat.
25 HOLLY ROBINSON, PLAINTIFF HEREIN, SWORN
1087
Robinson - direct
1 DIRECT EXAMINATION
2 BY MR. FLAXMAN:
3 Q. Would you state your name, please.
4 A. My name is Holly Christine Robinson.
5 Q. And what is your business or occupation?
6 A. I'm a sergeant of police with the Chicago Police
7 Department.
8 Q. And how long have you been employed by the Chicago Police
9 Department?
10 A. I was hired by the Chicago Police Department November 29th,
11 1982.
12 Q. And when did you become a sergeant?
13 A. July 27th, 1990.
14 Q. What is your present assignment?
15 A. I'm assigned to Area 1 youth investigations.
16 Q. And what do you do as a sergeant in Area 1 youth
17 investigations?
18 A. I'm the watch commander. I conduct roll call, roll call
19 training. I assist in -- I oversee investigations and do a lot
20 of administrative duties.
21 Q. How many officers are underneath you?
22 A. Approximately 15 to 20.
23 Q. And so when you conduct roll call, how many officers are
24 there?
25 A. Approximately ten.
1088
Robinson - direct
1 Q. Okay. And have you ever worked in a patrol unit?
2 A. I was assigned to the 5th District.
3 Q. And how long did you work in the 5th District?
4 A. Approximately three months.
5 Q. And in those three months did you go to roll call?
6 A. Yes.
7 Q. Was the roll call that you attended in the patrol unit
8 different than the roll call that you conduct as a watch
9 commander in youth division?
10 A. Yes.
11 Q. How is it different?
12 A. The lieutenant conducts roll call.
13 Q. Well, other than the person, the identity of the person who
14 conducts it, is it conducted any differently?
15 A. No.
16 Q. How about roll call training, is that the same in the youth
17 division when you conduct it as when a lieutenant conducts it
18 in the patrol division?
19 A. It's the same except for when we deal with things that are
20 youth-related.
21 Q. Now, did you -- you took the 1994 lieutenants test?
22 A. Yes, I did.
23 Q. Did you study for it?
24 A. Yes, I did.
25 Q. And do you recall what your score was on the written test?
1089
Robinson - direct
1 A. I think it was 117.
2 Q. Right. And there is an exhibit where the parties have
3 stipulated that your score on the in-basket test was 56, and
4 that your score on the oral was 10.
5 Before testifying here today, did you have a chance
6 to listen to your -- the tape of your oral component?
7 A. Yes, I did.
8 Q. Now, before we get to that, let me play you an excerpt of
9 what we've previously referred to as Plaintiffs' Exhibit 139, I
10 believe.
11 MR. FLAXMAN: I need to check that, if I may.
12 MS. DORN: Your Honor, objection on relevance grounds
13 to this witness listening to the scoring device, listening to
14 the scoring device.
15 THE COURT: Well, I'm not sure what you are talking
16 about or what Mr. Flaxman is talking about yet.
17 MR. FLAXMAN: I propose to play for the witness an
18 excerpt of the tape that's previously been played that's been
19 referred to as Plaintiffs' Exhibit 139.
20 MS. DORN: Okay, I --
21 THE COURT: Excuse me.
22 What is it?
23 MR. FLAXMAN: The witness is going to tell us whose
24 voice it is.
25 MS. DORN: My objection to that is foundation. This
1090
Robinson - direct
1 witness cannot -- has not been identified as being an expert on
2 voices. How can she tell us whose voice is being played on the
3 tape?
4 THE COURT: What's the purpose?
5 MR. FLAXMAN: Well, the City produced these tapes in
6 discovery but has refused to stipulate that the tape is whose
7 name is on the label.
8 MR. HOLZHAUER: We'll stipulate that that tape that
9 you played earlier was Mary Grayer's tape. We told you
10 yesterday that we'll wait to see what you do with them today to
11 decide which we'll agree to. But that's certainly fine.
12 THE COURT: Okay.
13 MR. FLAXMAN: All right.
14 THE COURT: Who is it?
15 MR. FLAXMAN: Exhibit 139, which was played with
16 Lieutenant Klein, was Mary Grayer, G-r-a-y-e-r.
17 BY MR. FLAXMAN:
18 Q. Now, before testifying here today, did you have a chance to
19 look at materials about how the oral test was scored?
20 A. Yes, I did.
21 Q. Do you have any of those materials with you?
22 A. Not at this desk.
23 Q. Okay. Let me show you -- well, when you looked at those
24 materials, did you -- what did you learn? Did you learn how
25 the test was scored from those materials?
1091
Robinson - direct
1 MS. DORN: Objection, Your Honor. This witness is
2 not qualified as an expert on the scoring of this test.
3 THE COURT: What's the purpose of the question?
4 MR. FLAXMAN: To show what -- I'm going to go back
5 with more -- well, I'll withdraw the question. Let me do more
6 background before I --
7 THE COURT: If you are doing it just as a background
8 exercise, that's okay. She's not testifying as an expert on
9 these questions, is she?
10 MR. FLAXMAN: No.
11 THE COURT: All right. Go ahead. Do it your own
12 way.
13 MR. FLAXMAN: All right.
14 BY MR. FLAXMAN:
15 Q. What's the -- let's talk about your education. When did
16 you complete high school?
17 A. I completed high school in 1975.
18 Q. After completing high school, did you continue your
19 education?
20 A. Yes, I did.
21 Q. And where did you go?
22 A. I went to Illinois State University in Normal, Illinois.
23 Q. And what degree did you receive from that school?
24 A. I received a BS.
25 Q. In what field of study?
1092
Robinson - direct
1 A. Corrections.
2 Q. When did you receive the BS in corrections?
3 A. In 1979.
4 Q. Did you continue your education after receiving a
5 bachelor's degree?
6 A. Yes, I did.
7 Q. And to what school -- where did you go?
8 A. Lewis University.
9 Q. And did you receive a degree from Lewis University?
10 A. Yes, I did.
11 Q. What degree did you receive?
12 A. My MS in criminal justice.
13 Q. Okay. When did you receive that?
14 A. In 1987.
15 Q. Okay. Now, when you took the oral test, did you understand
16 how it was going to be scored?
17 A. Not at the time I took it.
18 Q. As you sit here now, do you understand how the oral test
19 was scored?
20 A. Somewhat.
21 Q. Okay. Did you have a chance to listen -- before testifying
22 here today, did you have a chance to listen to the tape, your
23 tape at the oral component?
24 MS. DORN: Objection, Your Honor. I'm objecting to
25 this entire line of questioning. It's quite clear that he's
1093
Robinson - direct
1 trying to have this witness testify about the scoring of her
2 exam.
3 First of all, it's not relevant to the subject matter
4 at issue in this lawsuit, which is whether or not the oral
5 briefing exercise was job related. Secondly, she is not an
6 expert on scoring. He could have brought someone in to talk
7 about scoring. He chose not to. This witness cannot testify
8 about these matters.
9 THE COURT: Overruled.
10 Go ahead, Mr. Flaxman.
11 MR. FLAXMAN: I don't remember my last question. Is
12 it easily -- could I have it back?
13 THE COURT: Sure.
14 (Question read.)
15 BY MR. FLAXMAN:
16 Q. Did you?
17 A. Yes, I did.
18 Q. Did you also have a chance to look at the scoring sheet for
19 the oral -- for your oral component test?
20 A. Yes, I did.
21 Q. Now, the oral briefing exercise for the 1994 lieutenants
22 test, was that just like the work you do as a watch commander
23 in doing roll call training?
24 A. No.
25 Q. Was that just like the work you do as a watch commander
1094
Robinson - direct
1 conducting roll call?
2 A. No.
3 Q. Was it anything at all like the work you do --
4 A. No.
5 Q. -- doing roll call?
6 How is it different?
7 A. I've never been given 20 pieces of paper to have to
8 disseminate before roll call.
9 Q. Okay. And have you ever given speeches that are as long as
10 your oral presentation on the tape that you listened to on the
11 test?
12 A. Not about one subject matter.
13 Q. Now, before testifying here today, did you work out some
14 numbers, some scoring, alternate scorings about how you would
15 have done on the test if you had gotten a different score on
16 the oral test?
17 MS. DORN: Objection again, Your Honor. This witness
18 testified on -- he hasn't established that she's able to --
19 THE COURT: Let me hear what she --
20 MS. DORN: -- recalculate her exam scores.
21 THE COURT: Ms. Dorn, let me hear what she has to
22 say.
23 Go ahead, Mr. Flaxman.
24 BY MR. FLAXMAN:
25 Q. Before testifying here today, did you recalculate what your
1095
Robinson - direct
1 final Z score would have been with different scores on the oral
2 test?
3 A. Yes, I did.
4 Q. And when you did that, did you follow the formula that's
5 set out in Defendant's Exhibit 1, Dr. Barrett's report?
6 A. Yes, I did.
7 Q. Okay. And are you, as a result of your training and
8 experience, able to operate a desk calculator and divide and
9 subtract numbers and add numbers and take averages?
10 A. Yes, I am.
11 Q. Okay. And did you write down on a piece of paper what your
12 final Z score would have been with different oral scores?
13 A. Yes, I did.
14 Q. Do you have that with you?
15 MR. FLAXMAN: If I may?
16 THE COURT: What are you getting at, Mr. Flaxman?
17 She listened to her test and then scored it herself?
18 MR. FLAXMAN: No. I'm getting to if she had gotten a
19 score of -- well, maybe we can stipulate to it -- a score of 14
20 on the oral test, her final Z score would have been 1.0118,
21 which would have given her a rank of, I think, 71, which would
22 have made her a lieutenant now.
23 If we can stipulate to that, we'll save some time.
24 THE COURT: If she got, it's a sort of hypothetical?
25 MR. FLAXMAN: That's right. She got 10.
1096
Robinson - direct
1 THE COURT: If she got a 14 on the oral component.
2 MR. FLAXMAN: Right. That her final Z score would
3 have been 1.0118, which would have put her right above Clark
4 Schroeder, S-c-h-r-o-e-d-e-r, who is on page 17 of the exhibit,
5 the spreadsheet exhibit of the final Z scores. And she'd be a
6 lieutenant now.
7 MS. DORN: We will not stipulate to that.
8 THE COURT: Seems to me like a matter of math,
9 doesn't it?
10 MR. FLAXMAN: I believe it is, Judge.
11 THE COURT: All right. Go through it.
12 MR. FLAXMAN: Can we ask --
13 MR. HOLZHAUER: Your Honor, I think it's not
14 completely a matter of one person's math, because any Z score,
15 any change in score changes the entire formula for everybody.
16 Secondly, does this mean that everybody who got a 10 or 11 on
17 the thing will be given a 14? In which case I think it's quite
18 unlikely that this candidate would have been promoted.
19 That's why I think the stipulation is -- you know, in
20 isolation perhaps it makes sense, although we --
21 THE COURT: Well, I'm not saying it's going to be
22 determinative or persuasive or anything else.
23 MR. HOLZHAUER: Okay.
24 THE COURT: Go ahead, Mr. Flaxman.
25 MR. FLAXMAN: Well, are we --
1097
Robinson - direct
1 THE COURT: He's not stipulating. Go ahead,
2 Mr. Flaxman.
3 MR. FLAXMAN: All right.
4 I need 30 seconds.
5 (Pause.)
6 BY MR. FLAXMAN:
7 Q. Do you remember how you computed Z scores yesterday?
8 A. I took -- like say for the written part, I would take 117
9 and subtract it from the mean and then divided by the standard
10 deviation.
11 Q. And I told you what the -- the standard deviation is
12 something that we got from Defendant's Exhibit 1, is that
13 right?
14 A. Yes.
15 Q. Okay. And the same thing with the in-basket, is that
16 right? We took your score, subtracted the mean and divided it
17 by the standard deviation?
18 A. Yes, I did.
19 Q. And you did the same thing with the oral score?
20 A. Yes.
21 Q. And then to get the final score, did you add the three Z
22 scores together and take the average?
23 A. Yes.
24 Q. And your actual oral score was 10, is that right?
25 A. Yes.
1098
Robinson - direct
1 Q. And with the oral score of 14, do you remember where you
2 would have ranked on the final --
3 MS. DORN: Same objection, Your Honor, that was
4 raised before.
5 THE COURT: Overruled.
6 BY THE WITNESS:
7 A. I believe in the top 100.
8 BY MR. FLAXMAN:
9 Q. Okay. Now, did you have a chance to listen to your tape?
10 A. Yes.
11 Q. And did you have a chance as you listened to it to look at
12 the scoring sheets that were prepared for you when you took
13 your tape -- prepared from your tape?
14 A. Yes, I did.
15 Q. Let me show you what's been marked as Plaintiffs' Exhibit
16 140. These are the scoring sheets you looked at, is that
17 right?
18 A. Yes.
19 Q. Were you able to understand what those Xs and checkmarks
20 meant on the scoring sheet?
21 MS. DORN: Objection, foundation.
22 THE COURT: It calls for a yes or no answer.
23 Overruled.
24 BY MR. FLAXMAN:
25 Q. Were you able to understand, yes or no, what those Xs or
1099
Robinson - direct
1 checkmarks meant on those -- that exhibit you have in front of
2 you?
3 A. Yes.
4 Q. And how were you able to understand what those marks meant?
5 A. I read the rating scale.
6 Q. And were you able to understand the rating scale?
7 A. Somewhat.
8 Q. Okay. Well, when you listened to your tape and looked at
9 your scoring chart, did you hear anything on the tape that you
10 felt was not reflected on the scoring chart?
11 A. Yes, I did.
12 Q. What I'd like to do now, if I may, is to play your tape,
13 which we'll refer to as Plaintiffs' Exhibit 131 and just ask
14 you to press the button and stop it when you hear something on
15 the tape that you believe is not noted on Plaintiffs' Exhibit
16 140.
17 MS. DORN: Objection.
18 MR. FLAXMAN: If that's agreeable to the Court.
19 MS. DORN: Objection, Your Honor, again, relevance.
20 This case is about the oral briefing exercise and whether it
21 relates to the job of lieutenant, not about the scoring of the
22 exercise.
23 Secondly, with respect to this witness, she's already
24 stated that she understood somewhat the basis for scoring on
25 the oral exam. For her to now testify about what she thought
1100
Robinson - direct
1 was right about scoring or what wasn't right about it is
2 totally inappropriate.
3 THE COURT: Overruled.
4 BY MR. FLAXMAN:
5 Q. Here is the play button. And there is the stop button.
6 And I'll start it.
7 (Said audio recording was played in open court.)
8 BY MR. FLAXMAN:
9 Q. Now, you just stopped the tape. Could you tell us what it
10 is that you heard on the tape that isn't noted on the chart?
11 A. I got a T on transgression, a transgression for
12 introduction.
13 Q. And what do you understand a transgression to mean?
14 A. It means that you didn't follow what you were supposed to
15 do.
16 Q. And do you believe you followed what you were supposed to
17 do in that introduction?
18 A. Yes.
19 Q. Okay. And why is that?
20 A. Because I gave an introduction. I gave a reason.
21 Q. All right. And would you continue with the tape.
22 (Said audio recording continued to be heard in open
23 court.)
24 BY MR. FLAXMAN:
25 Q. You just stopped the tape again. Is there something you
1101
Robinson - direct
1 heard which is different than what you see on the chart?
2 A. Yes. On two of my forms, blue and white is not checked.
3 Q. And did you hear yourself say that on the tape?
4 A. Yes, I did.
5 Q. Okay. Would you continue.
6 (Said audio recording continued to be heard in open
7 court.)
8 BY MR. FLAXMAN:
9 Q. You just stopped the tape again. Did you hear something
10 that isn't on the chart?
11 A. Yes. On one of the forms, description of a male black, 23
12 years old, under Daniel Brown's name is not checked.
13 Q. All right. Would you continue.
14 (Said audio recording continued to be heard in open
15 court.)
16 BY MR. FLAXMAN:
17 Q. You just stopped the tape again. What did you hear that's
18 different than what's marked on the chart?
19 A. On one of the forms, "rock" is not marked.
20 Q. And did you hear yourself say that word?
21 A. Yes, I did.
22 Q. All right. Would you continue.
23 (Said audio recording continued to be heard in open
24 court.)
25 BY MR. FLAXMAN:
1102
Robinson - direct
1 Q. Now, that was your voice we heard on the tape, is that
2 right?
3 A. Yes.
4 Q. Is that speech that we heard anything at all like any roll
5 call you've ever conducted?
6 A. No.
7 Q. Is it anything at all like any roll call you've ever been
8 at?
9 A. No.
10 Q. Now, you listened to the tape of Mary Grayer's oral test,
11 is that right?
12 A. Yes, I did.
13 Q. Is her voice any different than yours?
14 A. Yes.
15 Q. How is it different?
16 A. I believe I sound more African-American than Mary Grayer.
17 Q. She's also African-American?
18 A. Yes.
19 Q. But you don't think she sounds that way?
20 A. She doesn't sound like I do.
21 Q. Now, before you had a chance to listen to that tape in my
22 office and look at the scoring system, did you have any idea of
23 how your oral test had been scored?
24 A. No, I didn't.
25 Q. Did you have any opportunity to tell Dr. Barrett or
1103
Robinson - cross
1 somebody from the City of Chicago that, "I believe my test had
2 been improperly scored"?
3 A. No.
4 MR. FLAXMAN: Thank you. Nothing further.
5 MR. HOLZHAUER: One minute, Your Honor.
6 THE COURT: Why don't we take a five-minute break.
7 MR. HOLZHAUER: Thank you, Your Honor.
8 THE COURT: Is this your last witness?
9 (Recess.)
10 THE COURT: All right. Please be seated.
11 Ms. Dorn.
12 CROSS-EXAMINATION
13 BY MS. DORN:
14 Q. Sergeant Robinson, I'm Angela Dorn. We've met. I have a
15 few questions for you.
16 A. Can you speak up, please.
17 Q. I can. Please just let me know if you are not hearing me,
18 as you have.
19 Now, you served as a watch commander in the youth
20 division, that's correct?
21 A. Yes.
22 Q. And this is a special division, is it not?
23 A. It's a support unit of the police department.
24 Q. It's a small division within the police department, is it
25 not?
1104
Robinson - cross
1 A. Yes.
2 Q. And it's certainly smaller than any one of the 25 patrol
3 divisions, isn't that correct?
4 A. The youth division itself or the unit I work in?
5 Q. The unit you work in?
6 A. Yes.
7 Q. And you've not served as a watch commander in the patrol
8 division, is that right?
9 A. No, I have not.
10 Q. Sergeant Robinson, you would agree that the Chicago Police
11 Department is a paramilitary organization, wouldn't you?
12 A. No.
13 Q. It's not a paramilitary organization.
14 A. On paper.
15 Q. On paper. On paper it's a paramilitary organization?
16 A. Supposedly.
17 Q. Well, is there not a chain of command within the Chicago
18 Police Department?
19 A. Yes.
20 Q. Okay. And police officers are supervised by sergeants who
21 are supervised by lieutenants, isn't that correct?
22 A. Yes.
23 Q. And in the Chicago Police Department, there are orders and
24 directives that delineate the duties of officers, of sergeants,
25 and lieutenants, isn't that correct?
1105
Robinson - cross
1 A. Yes.
2 Q. And it's important for officers of all ranks within the
3 Chicago Police Department to follow the department directives
4 in carrying out their duties, isn't that correct?
5 A. Yes.
6 Q. And it's also important for all officers to follow the
7 directions of their supervisors, isn't that correct?
8 A. Yes.
9 Q. And, finally, it's important for all officers to be able to
10 follow Chicago Police Department instructions in general, is
11 that right?
12 A. Yes.
13 Q. So officers need to know how to follow instructions,
14 correct?
15 A. Correct.
16 Q. Sergeant Robinson, would you also agree that it's important
17 for lieutenants to have good oral skills?
18 A. Everybody should have good oral skills.
19 Q. Well, then shouldn't lieutenants also have good oral
20 skills?
21 A. Yes.
22 Q. And lieutenants need to be able to communicate orally with
23 their subordinates, is that right?
24 A. Yes.
25 Q. And they need to be able to communicate orally with their
1106
Robinson - cross
1 superiors, right?
2 A. Yes.
3 Q. And, finally, they also need to be able to communicate
4 orally with the community. Do you agree with that?
5 A. Yes.
6 Q. So you agree that it was appropriate for the 1994
7 lieutenants exam to test each candidate's oral skills, is that
8 correct?
9 MR. FLAXMAN: Objection. Her opinion about whether
10 it was appropriate to test something or not is not material.
11 THE COURT: I'll give Ms. Dorn the same leeway I gave
12 you with this witness. Overruled.
13 BY MS. DORN:
14 Q. Can you answer the question?
15 A. Can you repeat it?
16 Q. So you agree that it was appropriate for the 1994
17 lieutenants exam to test candidates' oral skills, is that
18 correct?
19 A. Was it appropriate? Do I agree? No.
20 Q. Oh, it wasn't appropriate?
21 A. You asked me do I agree. I just said no --
22 Q. Do you agree that it was appropriate is what I asked you.
23 A. I said no, I don't.
24 Q. Well, did you take a deposition in this matter not so long
25 ago, I believe a couple weeks ago, in which I asked you that
1107
Robinson - cross
1 very same question?
2 A. What did I say?
3 Q. You agreed that it was appropriate.
4 A. I said I agreed or you said should it have been given.
5 See, I'm misunderstanding, could you --
6 Q. Okay. Well, let's move on.
7 A. Let's move on.
8 Q. Turning to the oral briefing exercise, you said that there
9 are a lot of pages to the exam. But isn't it true that the
10 exercise tested oral skills involving the presentation of
11 Chicago Police Department directives?
12 MR. FLAXMAN: Objection. She doesn't know what it
13 tested, if anything.
14 THE COURT: Don't testify for her. She's already
15 told me what the scores should be. I think she can tell me
16 what it tested. Overruled.
17 BY THE WITNESS:
18 A. Would you repeat the question?
19 BY MS. DORN:
20 Q. The oral briefing exercise tested oral skills involving the
21 presentation of Chicago Police Department directives, isn't
22 that correct?
23 A. The presentation, yes.
24 Q. And the presentation of Chicago Police Department
25 directives is something that lieutenants discuss and present to
1108
Robinson - cross
1 their subordinates, is that correct?
2 A. Correct.
3 Q. All right. Would you also agree that the oral exercise
4 involved the presentation of Chicago Police Department
5 procedures and guidelines, correct?
6 A. Correct.
7 Q. And the presentation of Chicago Police Department
8 procedures and guidelines is something that lieutenants discuss
9 and present to their subordinates, correct?
10 A. My lieutenant doesn't.
11 Q. Do lieutenants in the Chicago Police Department do that?
12 A. Yes, as well as sergeants.
13 Q. And is it also true that on the job a watch commander or
14 field lieutenant might give information on criminal activity
15 that's going on in their area?
16 MR. FLAXMAN: Objection to the "might."
17 BY MS. DORN:
18 Q. Is it also true that on the job watch commanders and field
19 lieutenants do give information on criminal activity that's
20 going on in their area and the proper response to it?
21 A. Yes, they read it out of the CO book.
22 Q. So they do, do they?
23 A. Yes.
24 Q. And you agree that a lieutenant should be able to review
25 information and orally present it to subordinates clearly and
1109
Robinson - cross
1 effectively, correct?
2 A. Correct.
3 Q. And you would also agree that a lieutenant should be able
4 to review the information and orally present the correct
5 information and accurate information to his subordinates,
6 correct?
7 A. Correct.
8 Q. And would you agree that the oral briefing exercise
9 required candidates or tested candidates on their ability to
10 review information and orally present the correct information
11 to their subordinates?
12 MR. FLAXMAN: Objection to her competence to know
13 what it tested.
14 THE COURT: Overruled.
15 BY THE WITNESS:
16 A. Once again, would you repeat the question?
17 BY MS. DORN:
18 Q. Would you agree that the oral briefing exercise tested
19 candidates on their ability to review information and orally
20 present correct and accurate information to their subordinates?
21 A. It tested people on their ability to review information and
22 to present it to roll call.
23 Q. So as far as you know, it didn't test people on their
24 ability to present the correct information, is that right?
25 A. Well, according to the rating scale, that's what they were
1110
Robinson - cross
1 looking for.
2 Q. Okay. And you agree, don't you, that a lieutenant should
3 be able to follow written directions?
4 A. Yes.
5 Q. Sergeant Robinson, I'm handing you what's been marked
6 Defendant's Exhibit 16. One moment.
7 MS. DORN: Your Honor, counsel, replacing, this is
8 Defendant's 16.
9 MR. FLAXMAN: We have no objection to the
10 substitution of the corrected 16.
11 MS. DORN: Your Honor, this is 16 with all sets that
12 were tested on.
13 THE COURT: What are you telling me here?
14 MS. DORN: I am telling you that there were three
15 different sets for the oral briefing exercise.
16 THE COURT: Should I replace --
17 MR. FLAXMAN: Yes.
18 THE COURT: -- this? Should I throw the one in the
19 book out?
20 MR. FLAXMAN: Yes.
21 THE COURT: And replace it with this one.
22 MS. DORN: The one in the book.
23 MR. FLAXMAN: Actually, can we recycle it?
24 THE COURT: We recycle everything.
25 BY MS. DORN:
1111
Robinson - cross
1 Q. Sergeant, I want to turn your attention to form Z within
2 that set of documents. It starts at Bates stamp 08599. Are
3 you there?
4 THE COURT: I'm sorry, what page?
5 MS. DORN: 08599. That's where form Z starts.
6 THE COURT: The thing you just gave me starts at
7 8618.
8 MS. DORN: There are three different sets of oral
9 exams there. Form Z starts at 08599.
10 MR. FLAXMAN: It's not in numerical order.
11 THE COURT: They're not in order.
12 MS. DORN: They're not in order?
13 THE COURT: No.
14 MS. DORN: I apologize.
15 THE COURT: I see it.
16 It's right after the second yellow page, Sergeant.
17 BY MS. DORN:
18 Q. Now, is this the oral briefing exercise for the 1994
19 lieutenants exam?
20 A. Yes.
21 Q. Form Z of that exercise?
22 A. Yes.
23 Q. Turning to Bates stamps 08600 and 08601 of the exam, the
24 oral exam contained a set of instructions, didn't it?
25 A. Yes.
1112
Robinson - cross
1 Q. And you read the instructions for the oral briefing
2 exercise prior to taking the exam, didn't you?
3 A. I read it at the exam. I didn't read it prior to taking
4 it. I read it when I was at the exam site.
5 Q. Prior to giving your oral briefing exercise you read the
6 instructions?
7 A. Prior to, right.
8 Q. And the exam required you to give a briefing on a new gang,
9 is that right?
10 A. Yes.
11 Q. Looking at these instructions, in giving the briefing, you
12 were instructed to include only relevant and important
13 information along with any relevant procedural information in
14 your presentation. That's looking at paragraph three of Bates
15 8600. Do you see that?
16 A. Yes.
17 Q. So that was one of the instructions you were given,
18 correct?
19 A. Correct.
20 Q. And that's what you read, right?
21 A. Right.
22 Q. And you were also instructed to ignore irrelevant
23 information. That's paragraph four on 8600, is that correct?
24 A. Correct.
25 Q. And you were also specifically instructed to include
1113
Robinson - cross
1 important descriptive information about the new gang, such as
2 gang member names, correct?
3 A. Correct.
4 Q. That's paragraph 5 --
5 A. Right.
6 Q. -- of 8600?
7 And in the context of an oral briefing being given by
8 a lieutenant, you would agree that it would be important for
9 the information given to be presented accurately, wouldn't you?
10 MR. FLAXMAN: Objection. It's been asked and
11 answered.
12 THE COURT: Sustained.
13 BY MS. DORN:
14 Q. Would you agree?
15 THE COURT: I just sustained the objection.
16 MS. DORN: Sorry.
17 THE COURT: I think you've already asked that
18 question.
19 BY MS. DORN:
20 Q. Okay. You were handed Plaintiffs' Exhibit 140, the set of
21 oral briefing scoring sheets by your counsel. Do you still
22 have that?
23 A. Yes, I do.
24 Q. First of all, looking in the second column of Plaintiffs'
25 Exhibit 140, the top, there is something called irrelevant
1114
Robinson - cross
1 descriptive information. You just heard your tape.
2 Under this column, the grader has marked off
3 "different gang, does." Did you hear that on the tape?
4 A. Yes, I did.
5 Q. So that was irrelevant information you provided during the
6 course of the oral briefing exercise, right?
7 A. It wasn't irrelevant to me.
8 Q. It wasn't irrelevant to you?
9 A. No, it wasn't.
10 Q. You did hear yourself say that, didn't you?
11 A. Yes, I did.
12 Q. Now, you just heard your tape. And you incorrectly
13 presented the gang member's name as James Williams, when the
14 correct name for that gang member, that's in column one, is
15 William James, correct?
16 A. Correct.
17 Q. And wouldn't you agree that it would be a problem for
18 police officers to be briefed when given the wrong information
19 about a suspect?
20 A. But I did believe I gave his IR number.
21 Q. You also gave his name wrong, didn't you?
22 A. William James, yes.
23 Q. Actually, could you just answer the question.
24 A. Did I say "William James"? I thought I said "William
25 James."
1115
Robinson - cross
1 Q. You presented -- you incorrectly presented the gang
2 member's name as James Williams?
3 A. Did I? I thought I said "William James." I don't remember
4 saying "James Williams."
5 Q. If you did present it as James Williams, that would be
6 incorrect, wouldn't it?
7 A. If I presented it that way, yes.
8 Q. You just heard your tape?
9 A. But I thought I said "William James."
10 Q. You've heard your tape several times in preparation for
11 today's testimony, haven't you?
12 A. Several.
13 Q. And wouldn't you agree that it would be a problem for
14 police officers to be briefed and given the wrong information
15 about a suspect, wouldn't you?
16 A. Would it be a problem?
17 Q. Would it be a problem?
18 A. If they --
19 Q. It's a yes or no question.
20 A. It's a yes or no? No, it wouldn't be a problem.
21 Q. Oh, that couldn't lead to the wrong individual being
22 arrested or the right individual being missed?
23 A. It could.
24 Q. Okay. I believe you also testified that you saw some
25 markings on the score sheet which you believed graders had
1116
Robinson - cross
1 missed, correct?
2 A. I said they were not marked, and I said them.
3 Q. They weren't marked by one grader, but they were marked by
4 other graders, weren't they?
5 A. Several of them weren't marked by two graders.
6 Q. But they were marked by some graders?
7 A. Yes.
8 Q. I believe that you also testified about your exam versus a
9 Mary Grayer's exam and your beliefs regarding differences in
10 your voices.
11 But isn't it true that a number of minorities
12 achieved high scores on the oral briefing exercise?
13 A. No.
14 Q. Oh, it's not true?
15 A. No.
16 Q. Do you know who Rick Edwards is?
17 A. Yes.
18 Q. Is he an African-American?
19 A. Yes, he is.
20 Q. Do you know that he received a 15 out of a possible 15 on
21 the oral briefing exercise?
22 A. Yes, I do.
23 Q. Do you know who Harvey Radney is?
24 A. Yes.
25 Q. Is he an African-American?
1117
Robinson - cross
1 A. Yes, he is.
2 Q. Do you know that he received a 15 out of a 15 on the oral
3 briefing exercise?
4 A. Yes, I do.
5 Q. And do you know who Kenneth Mann is?
6 A. Kenny Mann?
7 Q. Kenny Mann. Do you know who he is?
8 A. Yes, I am -- yes, I do.
9 Q. M-a-n-n.
10 Do you know that he's an African-American?
11 A. Yes.
12 Q. Do you know that he received a score of 15 out of a
13 possible 15 on the oral briefing exercise?
14 A. Yes, I do.
15 Q. Do you know who Arthur Para is?
16 A. No.
17 Q. He's an Hispanic individual.
18 A. Oh.
19 Q. So you don't know that he received a 15 out of 15 on the
20 oral briefing exercise either?
21 A. No. That's three.
22 Q. And of course you know who Mary Grayer is, who also
23 received a 15 out of 15.
24 Now, am I correct that you do not believe that
25 performance evaluations or performance ratings should play a
1118
Robinson - redirect
1 part in promotions?
2 A. It should not --
3 MR. FLAXMAN: Objection, that's beyond the scope of
4 direct.
5 MS. DORN: One moment.
6 I have nothing further.
7 REDIRECT EXAMINATION
8 BY MR. FLAXMAN:
9 Q. In the course of your work as a sergeant, do you
10 communicate orally with police officers?
11 A. Yes.
12 Q. Do you do that effectively?
13 A. I think so.
14 Q. Do you communicate orally with members of the public?
15 A. Yes.
16 Q. Do you do that effectively?
17 A. Yes.
18 Q. Do you communicate orally with supervisors?
19 A. Yes.
20 Q. Do you do that effectively?
21 A. Yes.
22 Q. How was giving the speech that you heard on the tape
23 different than the oral communication you do in your everyday
24 work as a police sergeant?
25 MS. DORN: Objection, asked and answered.
1119
Robinson - redirect
1 THE COURT: Sustained.
2 MR. FLAXMAN: Okay.
3 BY MR. FLAXMAN:
4 Q. You were asked that a lieutenant should be able to
5 communicate clearly and effectively. Should a sergeant also be
6 able to communicate clearly and effectively?
7 A. Yes.
8 Q. Do you in your work as a sergeant communicate clearly and
9 effectively?
10 A. Yes.
11 MS. DORN: Asked and answered.
12 THE COURT: Overruled.
13 BY MR. FLAXMAN:
14 Q. You agreed that a lieutenant should be able to communicate
15 correctly and accurately. Is the same thing true for a
16 sergeant?
17 A. Yes.
18 Q. Do you in your work as a sergeant communicate correctly and
19 accurately?
20 A. Most of the time.
21 Q. Okay. And then you were shown the instructions for the
22 oral test and asked about following written directives.
23 Is following the written directives that made up the
24 oral test different than following written directives in your
25 work as a Chicago police sergeant?
1120
Robinson - redirect
1 A. Yes.
2 Q. How is it different?
3 A. Because the written directions -- directives we always
4 have. We have hands-on access to them.
5 Q. Then you were asked this question about whether it was
6 Williams James or James Williams. And would it make a
7 difference if you said William James or James Williams if
8 you're giving an oral briefing?
9 MS. DORN: Foundation.
10 THE COURT: Overruled.
11 BY MR. FLAXMAN:
12 Q. Do you remember that question?
13 A. I don't think so.
14 Q. Okay. Do police people sometimes use last name first
15 rather than first name first?
16 A. Yes.
17 Q. And then you were asked about these people who got 15. Do
18 you know Ricky Edwards?
19 A. Yes.
20 Q. Does he sound African-American when he speaks?
21 A. Not like I do.
22 Q. Okay. How about Mr. Radney, Sergeant Radney, maybe
23 Lieutenant Radney. Does he sound African-American when he
24 speaks?
25 A. Not like I do.
1121
1 Q. How about Ken Mann, does he sound African-American?
2 A. Yes.
3 Q. Like you do?
4 A. Yes.
5 Q. Okay.
6 MR. FLAXMAN: I have nothing further.
7 THE COURT: All right. You're excused, Sergeant.
8 Thank you.
9 (Witness excused.)
10 MR. FLAXMAN: That concludes our witnesses.
11 We have some evidentiary points that require Your
12 Honor's attention with exhibits.
13 THE COURT: Okay.
14 MR. FLAXMAN: There are a number of exhibits. The
15 numbers are --
16 MR. HOLZHAUER: Can I look over your shoulder?
17 MR. FLAXMAN: Sure.
18 Plaintiffs' 37 --
19 THE COURT: Well, have you had a chance to sit down
20 together?
21 MR. HOLZHAUER: We have.
22 MR. FLAXMAN: -- 37, 38, 39, which are pleadings that
23 were filed by the City of Chicago in the merit promotion
24 litigation in state court.
25 Plaintiff contends that those pleadings or statements
1122
1 in those pleadings constitute party admissions and are
2 admissible.
3 MR. HOLZHAUER: I think they're just argument in
4 another case in another factual situation, Your Honor. I don't
5 think there is any ground for admitting those.
6 THE COURT: What are these numbers again?
7 MR. FLAXMAN: 37, 38, and 39.
8 THE COURT: Judicial admissions?
9 MR. FLAXMAN: I think it's a party admission. I
10 don't think it's a judicial admission because they didn't win
11 based on those arguments. But it's a statement made by a
12 representative who was authorized to make those statements.
13 THE COURT: And why do you want them in?
14 MR. FLAXMAN: There are admissions there that merit
15 promotion is an equally valid less discriminatory alternative
16 to rank order promotion, admissions that the City did that
17 because of the -- it felt it was complying with its obligation
18 under Title VII to adopt an equally valid less discriminatory
19 alternative.
20 MR. HOLZHAUER: Your Honor, that clearly was
21 argument. There were not factual admissions there by anybody
22 authorized to make factual --
23 THE COURT: If they're pleadings you filed in the
24 state court, I think that they should be in the record here if
25 they're on the same subject matter as this case. I'll admit
1123
1 them.
2 (Plaintiffs' Exhibits 37, 38 and 39 received in evidence.)
3 MR. FLAXMAN: And then we had a hypertechnical
4 disagreement about whether prior decisions which I think we've
5 agreed should be the subject of judicial notice should be
6 marked as exhibits and introduced into evidence.
7 THE COURT: Prior decisions of what?
8 MR. HOLZHAUER: Of this Court.
9 THE COURT: Of me?
10 MR. HOLZHAUER: No. The Northern District of
11 Illinois.
12 MR. FLAXMAN: One is U.S. versus City of Chicago
13 reported F.Supp. The other is an unreported decision.
14 THE COURT: It's in West Law?
15 MR. HOLZHAUER: Yes.
16 MR. FLAXMAN: I don't know. But we marked it as an
17 exhibit, and it's -- I don't know whether it should be formally
18 introduced into evidence or not.
19 THE COURT: Well, I mean, obviously, it's something I
20 would consider.
21 MR. HOLZHAUER: We have no problem it's there. It's
22 just not an exhibit.
23 THE COURT: It's burdening the record, I think.
24 Obviously, I would consider it, Mr. Flaxman. When you get your
25 chance to argue, you'd be within your right to use it and quote
1124
1 from it.
2 MR. FLAXMAN: We have a genuine disagreement about
3 Plaintiffs' Exhibit 127, which is the response by the City to a
4 request to admit.
5 My understanding is that when there is a response to
6 a request to admit, if you want it to be used at trial, you
7 have to introduce it into evidence. And we disagree with that
8 fact.
9 THE COURT: It's the only way it would get into the
10 record under the current rules that don't allow them to be
11 filed, unless they are put into the record in some fashion.
12 Plaintiffs' what?
13 MR. FLAXMAN: 127.
14 MR. HOLZHAUER: Your Honor, I think those get into
15 the record when they are offered at trial, for example, on
16 impeachment or for particular evidentiary points. And they
17 haven't been.
18 THE COURT: No. They're a statement of a party.
19 Unless there is an authenticity problem.
20 MR. HOLZHAUER: There is no authenticity problem.
21 THE COURT: It would be like a deposition of a party.
22 A statement made by a party is normally admissible for any
23 purpose, assuming that it meets the rules of evidence.
24 It's an awfully long exhibit, Mr. Flaxman.
25 MR. FLAXMAN: It was a short request to admit. It's
1125
1 a long answer because there are repetitive objections to each
2 subpart.
3 THE COURT: Short request to admit. Well, I'm just
4 turning to page 100 of this document, and we're on request
5 number 213.
6 MR. HOLZHAUER: Your Honor, we'll withdraw the
7 objection.
8 THE COURT: Of a total of 370. That's not exactly
9 short.
10 MR. FLAXMAN: It's short --
11 THE COURT: They're agreeing to admit it.
12 (Plaintiffs' Exhibit 127 received in evidence.)
13 MR. FLAXMAN: Okay. And --
14 MR. HOLZHAUER: We will put in the tapes and the
15 scoring sheets of both Mary Grayer and Holly Robinson.
16 MR. FLAXMAN: Yes.
17 MR. HOLZHAUER: Yes.
18 MR. FLAXMAN: So I think the only other objection,
19 the only disagreement --
20 MR. PIELL: Tell him the numbers of what those --
21 THE COURT: We just had them.
22 MR. FLAXMAN: Yes. And Plaintiffs' Exhibit 162 is
23 the copy of --
24 THE COURT: Wait, excuse me. 139 is Mary Grayer's
25 and 131 is Ms. Robinson.
1126
1 (Plaintiffs' Exhibits 139 and 131 received in evidence.)
2 MR. FLAXMAN: 139 is the tape.
3 We're also agreeing to 142, which is Mary Grayer's
4 scoring sheet, to which there has been no testimony, and Holly
5 Robinson's scoring sheet, 140.
6 THE COURT: Okay.
7 MR. FLAXMAN: Which I think may already have been
8 admitted. And the stipulation is that the name on the top was
9 not written in by the City or before it was produced in
10 discovery.
11 THE COURT: Okay.
12 (Plaintiffs' Exhibit 140 and 142 received in evidence.)
13 MR. FLAXMAN: We then have the disagreement about --
14 MR. HOLZHAUER: Rodriguez.
15 MR. FLAXMAN: Before that. Dr. Barrett's article,
16 162, in the SIOP newsletter where he said this was a draft of
17 the article but then agreed with the paragraph that he looked
18 at.
19 MR. HOLZHAUER: He said he didn't even remember that
20 draft of the article or remember where it came from. Your
21 Honor, we would be glad to provide a copy of his article.
22 But --
23 MR. FLAXMAN: Why don't we agree that we will expand
24 the record with a copy of the article when it's available.
25 MR. HOLZHAUER: I'll ask Dr. Barrett for a copy. He
1127
1 has told me it's published. I'll be glad to do it. That
2 document he didn't even recognize.
3 MR. FLAXMAN: It's basically the same thing.
4 MR. HOLZHAUER: You haven't even seen the article,
5 you're telling me?
6 MR. FLAXMAN: I have.
7 MR. HOLZHAUER: You told me yesterday that you
8 didn't.
9 THE COURT: All right. Let's not have dialogue
10 between the two of you on the record.
11 MR. FLAXMAN: Thank you.
12 THE COURT: When the article is -- when the final
13 version of the article is produced, it will be admitted.
14 MR. HOLZHAUER: Correct.
15 MR. FLAXMAN: And our final disagreement is with the
16 deposition testimony of Superintendent Rodriguez. And I was
17 wrong, Your Honor was right, that he did testify at the
18 preliminary injunction hearing, which is not at issue.
19 He also was deposed in the sergeants' litigation.
20 There are excerpts from that that I believe are party
21 admissions. And there are other parts of it that I believe
22 have nothing to do with the party admission.
23 MR. HOLZHAUER: Your Honor, you know, we certainly
24 could have objected to the superintendent's testimony coming in
25 through deposition, under the circumstances we didn't. We just
1128
1 think the whole deposition should come in under Rule 102.
2 There are lots of other statements he made in those, many of
3 which -- I think all of which are admissible as party
4 admissions, but all of which are his testimony. If he's not
5 going to have him here live, at least he should have his
6 complete testimony. There are sections where --
7 THE COURT: But this isn't in this case?
8 MR. HOLZHAUER: This is in --
9 MR. FLAXMAN: No. It might actually have been a
10 deposition in this case. And I --
11 MR. HOLZHAUER: No. It was in sergeants --
12 THE COURT: If it's a deposition in this case, I
13 would consider Superintendent Rodriguez as a high-ranking
14 officer, if not the highest-ranking officer of the party, and
15 it would be admissible.
16 MR. HOLZHAUER: Your Honor, my objection is not to
17 whether his stuff comes in. We did not object to that. Our
18 objection was okay, let's bring it in, let's bring the
19 deposition in and be able to talk about it, not cut it off at
20 one sentence when he continues reading from his report.
21 THE COURT: You're saying completeness.
22 MR. HOLZHAUER: Completeness.
23 THE COURT: Also in the pretrial order you're
24 supposed to designate and counterdesignate portions of
25 depositions that you want to admit.
1129
1 MR. HOLZHAUER: Which we did.
2 MR. FLAXMAN: We designated our portions, and they
3 said they want the whole thing.
4 MR. HOLZHAUER: It's about a 50-page deposition, Your
5 Honor.
6 THE COURT: Why don't we let it all in then.
7 MR. FLAXMAN: Well, some of it is not party
8 admissions. If they wanted that testimony, they should have
9 called him.
10 THE COURT: It's a deposition of a party. It may be
11 admitted as I recall by any party for any purpose.
12 MR. FLAXMAN: I thought just by the opponent,
13 otherwise it's hearsay.
14 THE COURT: Well, let me take a look.
15 MR. FLAXMAN: Okay.
16 MR. HOLZHAUER: Your Honor, I still think 102 let's
17 it come in under completeness.
18 (Pause.)
19 THE COURT: You're right, Mr. Flaxman. It's by an
20 adverse party. Until I saw -- until I see the transcript, I
21 can't tell whether under completeness it would be admissible.
22 MR. FLAXMAN: Well, I would not object to Your
23 Honor's ruling that anything that's in the deposition that's
24 necessary to complete the portions we designated should be
25 admitted. But I think there are a lot of extraneous material.
1130
1 And I'm sure that Your honor could read it and not be
2 prejudiced.
3 MR. HOLZHAUER: Your Honor, I don't think it goes
4 just to whether it is complete or to finish the sentences that
5 we talked about. I think it's a complete sense of what
6 Superintendent Rodriguez was testifying to.
7 THE COURT: Well, I don't know what he was testifying
8 to because I haven't read it. If it's only 50 pages,
9 obviously, it was a rather directed examination.
10 MR. HOLZHAUER: That's correct.
11 THE COURT: Certainly Superintendent or former
12 Superintendent Rodriguez is not unavailable.
13 MR. HOLZHAUER: He may be, as a matter of fact, right
14 now.
15 THE COURT: Well, he wasn't during the course of the
16 trial.
17 MR. HOLZHAUER: No, during the course of the trial.
18 THE COURT: And for a large portion of the trial he
19 was the superintendent.
20 MR. HOLZHAUER: Yes.
21 THE COURT: I think it was this Monday that it was
22 his official first day of not being the superintendent.
23 MR. HOLZHAUER: That's correct.
24 THE COURT: Well, I'm tempted just to say let it in
25 because it will be easier for me. But that's not the right
1131
1 answer. The right answer is I would have to see what portions
2 you have counterdesignated to see if they are fairly admitted.
3 MR. HOLZHAUER: We'll get it over.
4 THE COURT: So why don't you do that, mark and color
5 code them or something, give them to me. And if you do refer
6 to any of those portions in your post-trial briefs, just
7 footnote that this is a portion that is under objection.
8 You may not care, Mr. Flaxman.
9 MR. FLAXMAN: Yes, that's true.
10 THE COURT: All right.
11 MR. FLAXMAN: All the other exhibits are agreed to
12 and will be --
13 THE COURT: All right.
14 What I would like you both to do then by the time you
15 get me your post-trial briefs will be to give me a complete
16 list of all of the exhibits that have been admitted, either by
17 agreement or otherwise, so that it's more for your benefit than
18 mine and also --
19 MR. HOLZHAUER: We'll do that, Your honor.
20 THE COURT: -- for the record if there is an appeal.
21 Okay.
22 Now, I think we should talk about briefing this,
23 because as I said before, a lot of these -- a lot of the record
24 in this case is being introduced by documents that haven't been
25 specifically testified to, and there is depositions and that
1132
1 sort of thing. And I would like to be fully informed about
2 this. It's an important case. There is a lot of material
3 here.
4 So today is the 2nd of December. I congratulate you
5 for finishing on time, in fact, early from our original
6 prediction, but on time, even a little early in the day from
7 our later predictions.
8 And Jenny tells me that she's been giving you
9 seven-day expedited copy. So you've already got a fair portion
10 of the case transcribed.
11 So let me ask you then, how long do you think -- what
12 I was thinking of doing was asking you both to give me
13 simultaneous trial briefs in three or four weeks, then a week
14 or two after that to give me simultaneous responses to the
15 other party's brief. I have found that that works pretty well
16 post-trial. We don't get into the responsive pleading game
17 that we play on motions.
18 And also with the original brief to give me findings
19 of fact and conclusions of law, which may be very similar to
20 the ones you gave me just before the trial, but it will conform
21 to whatever evidence was presented that might have been a
22 little different than you had anticipated.
23 So as I say, today is the 2nd. We have some holidays
24 coming up. So I was thinking maybe the week of the 12th of
25 January for the first brief.
1133
1 MR. HOLZHAUER: That's fine, Your Honor.
2 THE COURT: How about that, Mr. Flaxman?
3 MR. FLAXMAN: That's generous, Your Honor.
4 MR. HOLZHAUER: Should we do it on the 12th?
5 THE COURT: 12th okay?
6 MR. FLAXMAN: Yes.
7 THE COURT: All right.
8 MR. HOLZHAUER: And two weeks later for our reply?
9 THE COURT: Right. Post-trial briefs then, plus
10 findings of fact, conclusions from each party on the 12th. And
11 then final responsive briefs on the 26th.
12 You know, I'm going to ask you to do something else,
13 because you're both experienced, good lawyers, and I think this
14 is something that all lawyers should do, and they don't, and it
15 puts a tremendous burden on the court. A lot of the facts here
16 are really undisputed. So to the extent you can agree on --
17 and I realize I think this case, I was thinking of where you
18 didn't put a lot of undisputed facts in your findings before.
19 As in any case, most facts are undisputed. They're facts.
20 I would like you to stipulate or give me an agreed
21 findings and conclusions to the extent you can do it, and it
22 should be, you know, fairly extensive, or at least findings of
23 fact as a separate document and then just take off from there.
24 You know, the identity of the parties, the nature of the tests,
25 when they were given, the results of the tests, a lot of these
1134
1 things are uncontested.
2 MR. HOLZHAUER: Sure.
3 THE COURT: That way my starting point is way up the
4 curve from where it otherwise would have to be, and I can do it
5 a lot quicker than I would have to do it otherwise.
6 Now the question is: Do I want to have argument on
7 this? And I have a feeling I am going to have questions for
8 you. So the answer is probably going to be yes. So I'm going
9 to set this for argument Friday, March 6th at 10:00 o'clock.
10 MR. HOLZHAUER: That's fine.
11 THE COURT: We'll give it the morning, block out the
12 morning. Okay?
13 MR. HOLZHAUER: Your Honor, we have one other exhibit
14 that we'll stipulate to that has to go in your book.
15 MR. FLAXMAN: Are you going to be looking at this
16 before I give you the papers, Judge?
17 THE COURT: You know, hopefully, I'll have time to
18 look at it before when I get your first set of briefs, but not
19 before.
20 MR. FLAXMAN: At some point it would be useful if we
21 all made sure you had a complete set of exhibits.
22 THE COURT: If you'd like, I don't think I've written
23 anything in these books I'm ashamed of or wouldn't care for you
24 to see.
25 MR. FLAXMAN: Would you like to give them back and
1135
1 then we'll --
2 THE COURT: Why don't I just leave them right up here
3 on the bench. You can have this back, if you like, or maybe
4 I'll need it.
5 MR. HOLZHAUER: You may keep that, Your Honor. A
6 gift from the City of Chicago, or a loan.
7 THE COURT: Is this a gift? Okay. I don't know if
8 I'll ever need it. But one more book isn't going to hurt.
9 MR. PIELL: This is to replace Plaintiffs' 163.
10 MR. FLAXMAN: He's giving them back.
11 MR. PIELL: I'll take care of that.
12 THE COURT: Take care of the books. If I have yellow
13 tabs on them like I do on some of them, just leave them on
14 those exhibits. I just marked them for my own convenience
15 during the trial.
16 MR. HOLZHAUER: We've agreed that we're going to take
17 both sets of exhibits, Your Honor. Our paralegal will take
18 them back. We'll arrange them.
19 THE COURT: All right. I am just going to leave them
20 on the bench here then. There were some that were not in the
21 books either. All right.
22 I think we can go off the record.
23 MR. HOLZHAUER: Okay.
24 (Discussion off the record.)
25 (Adjournment at 12:20 p.m., until March 6th, 1998.)
1136
1
2 C E R T I F I C A T E
3 I, Jennifer S. Costales, do hereby certify that the
4 foregoing is a complete, true, and accurate transcript of the
5 proceedings had in the above-entitled case before the Honorable
6 ROBERT W. GETTLEMAN, one of the judges of said Court, at
7 Chicago, Illinois, on November 18, 19, 20, 24, 25, December 1
8 and 2, 1997.
9
10 ______________________________
11 Official Court Reporter
12 United States District Court
13 Northern District of Illinois
14 Eastern Division
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See the written test
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