THE DOCKET The Official Publication of the Lake County Bar Association August 2005 • Vol. X, No.8
LCBA Criminal Law Seminar Annual Conference Paris Hotel - Las Vegas, Nevada
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August 2005 3 On the Schizophrenic Relationship Between Bench and Bar ...... Deborah L. Goldberg, President
5 Chief Judge's Page ...... Hon. Christopher C. Sta rck, Chief Judge
7 Real Estate Case law Update: Eminent Domain Issues ...... Sreven B. Bashaw
15 Asset Protectio n Changes by the New Bankruptcy Act ...... Roberr}. Kolasa
19 Annual Report of the Ombudsman Program, 2004-2005 ...... Robert S. Smirh, Jr., Ombudsman
21 Getting a Divorce and Your Spouse Wants a Portion of Your Military Pension Benefit ...... Ga rrick C. Zielinski
23 Brokerage Firms Attempt to Clarify the Confusing Roles and Responsibilities of Their Brokers ...... james ]. Eccleston
25 Reporting of Pro Bono Activities ...... Ann Buche Conroy
27 Doing Business at the library ...... David E. Bender
29 Abacuslaw... Practice Specific Case Management for Your Firm's Needs ...... Alan Pearlman
31 Civil Trial and Appeal Committee Annual Seminar and Golf Outing at Grand Geneva Resort, lake Geneva, Wi ...... Scotc B. Gibson
33 FYI: Class Settlement on Cellular Taxes ...... Submitted by Clayton P. Voegtle
39 Coroner visits Association of Women Attorneys of lake County
" "'\ , lhe Lake County Bar Association Advertising Bar Bulletin Board 0" Sill: Twelve 7 North County Street . Waukegan, Illinois 60085 Rates Issue !ill!.< ~ (847) 244-3143 ' (847) 244-8259 FAX Up to 5 lines 525 1/81h Page 550 545 540 6 to 10 lines 535 2004/2005 Executive Board Quarter Page 590 560 570 11 to 15 lines 540 fl Deborah Goldberg - President Half Page S13S S120 $105 Robert S. Smith, Jr. - 1st VIce-President Full Page $230 5205 5180 161020 lines $45 Fredric Bryan Lesser - 2nd VIce-President Treasurer To place an ad or for information on advertising rates, call (847) 244-3143. Stua rt A Reid - Deadline: first day of month preceding the month of publication. All submissions Bryan Winter - Secretary must be made on diskelle format accompanied by a hard copy. Diskettes are Bemard Wysocki - Immediate Past Pres. returned 10 7 N. County Street, Waukegan, and if nol retrieved by the author! owner within thirlY (JO) days of publication, become properly of the lake County Photographer 2004/2005 Ed~orial Board Bar Associat ion. Gary Schlesinger Karen Fox & Daniel 5hanes - Co-Editors The Dodel is the official publication of the lake County Bar Association, 7 N. Ann Buche Conroy Ed~orial Coordinator County Street, Waukegan, Il 60085 (847) 244-3 143, and is published monthly. James DeSanto Karl Newyear Subscriptions for non-members are $45.00 per year. Hon. Mitchel l Hoffman Staff Reproduction in whole or pari without permission is prohibited. The opinions Richard Kopsick and positions stated in signed material are those of the authors and not neces Amy D. Da rl ing sarily those of the Assoc iation or its members. At! submitted manuscripts are con· James Simonian Executive Director sidered by the Editorial Board. All letters to the editor and articles are subjecl lO Hon. jane Waller editing. Publi cation of a~vertisements is nol to be construed as an endorsement t-Ion. Diane E. Winter Melissa E. Brown of any product or service advertised unless otherwise staled. Executive Assistant / " Page 2 The Docket August 2005
LAKE COUNTY BAR ASSOCIATION "BROWN BAG" SEMINAR
Thursday, August 25, 2005 12:00 p.m. to 1:30 p.m. Lake County Courthouse 18 N. County Street, Waukegan, IL Courtroom C-201 Intellectual property basics: From the client to the court
Presented by: Mr. Lawrence Steingold Querrey & harrow, ltd.
No Written Materials will be provided
LCBA Members: B.y'O.L. (bring your own lunch) NO CHARGE FOR SEMINAR
Or just $8.00 & order your lunch from County Street Cafe
Non-Members: $23.00(seminar w/lunch) $15.00 (SEMINAR FEE)
When ordering lunch please use form below
RESERVATION DEADLINE IS TUESDAY. AUGUST 23. 2005! ALL LUNCH ORDERS MUST BE PAID FOR IN ADVANCE
Lunches will consist of a sandwich, chips, cookie and a beverage.
Enclosed please find $ for a box lunch/seminar fee for the Lake County Bar Association Brown Bag Seminar on Thursday, August 25, 2005.
Name: ______Phone:______
Circle Lunch Selection: Circle Drink Selection:
Turkey Tuna Ham Roast Beef Coke Diet Coke Sprite
Make Checks Payable and Return to: Lake County Bar Association· 7 N. County Street· Waukegan, IL 60085 August 2005 The Docket Page 3 On the Schizophrenic Relationship Between Bench and Bar
by Deborah L. Goldberg, President
1:1
I
am not a mental health professional, it sure does explain a lack of confi of the Bar are distressing. do not play one on television and dence which is inevitably transmitted Here's my particular problem: I Ihave no visions of visiting one, to the public. can't think of a better method. What except socially. Quite honestly, I don't This is hardly a unique thought we ca ll merit se lection is ripe for poli really mean schizophrenic, but "Iove either, is it? We have been whining tics, cronyism and undue influence hate" is childish and not appropriate, since time immemorial about the way from the politicians. But, then, so is and if I write "Janus-like" or Judges are chosen. A former and very election. The latter may be even Manichaean, you'll have no idea what beloved Bar President was once so worse, as money and advertising I'm talking about. So, schizophrenic it angry about it that he was the driving would then playa role, not to mention w ill be. The relationship between the force behind a movement which the partisan instincts of an uninformed Bench and the Bar is schizophrenic would have inhibited Judges' activities electorate. So, what alternative does and that's not necessarily a negative in the LCBA. I will probably pay for that leave? I suppose making the cur thing. this at the Breakfast Club in th e Sky, rent method a bit more professional A little tension is not a bad thing. It but I will now admit that I voted and less political is one alternative. keeps us all sharp and on our toes. against it. I have never believed in We in the Bar are doing our part: We're Tension is not the same thing as second class citizenship for anyone, revising the policies and procedures to antipathy. While we are professionals and I felt we would be the poorer for it. make the candidates' options and rat and do not play games, nonetheless, I also never held the same belief that ings a bit clearer; the membership of our litigation does have a winner and a the Bar was a road to the Bench, which the Se lection and Retention Committee loser and we need an arbiter. The was one of his issues. is rotated per th e Bylaws every year, so arbiter needs to be fair, even-handed He was right, though. Whatever some of the more experienced veterans and disinterested. He or she also may divide Bench and Bar begins with will rotate out, opening up for fresh needs to know what he or she is doing. the lousy method of chOOSing Judges. It perspectives; we are always looking at Sometimes, he or she needs to be is demeaning, undignified and fraught the application contents and proce instructed. It is incumbent upon the with favoritism. By definition, this dure, bearing in mind the State instructors to be honest, accurate and means that the best candidates may not requirements. respectful. All of this is a big "duh," necessarily apply, let alone make it isn't it? It doesn't explain the occa I guess this is an invitation for the through. As I write this in mid-June, Bench to review its customs as well. sional flare ups of resentment which we're smack dab in the middle of this While I am thrilled to death with the emanate from both sides of the bench. process. Some of the candidates are current crop of "baby judges," (proba That's because our relative posi experienced, well rounded and gifted, bly because I'm old and came up tions are not the real issue. The real but others are lacking. There are rumors through the ranks with most of them issue is not the Judges, but that the way that the outcome is already decided. and know them personally), I have we choose Judges is awful and does The Bar is awaiting the usual dismal trepidation that institutionally there is not always pave the way for the best return of Bar poll responses. The Judicial no assurance of the best and the bright and the brightest. How can we expect Selection and Retention Committee is est breaking through. I am curious, for the highest caliber jurist when the road working its tail off. While this is hardly example, as to why a judicial require to the bench is paved with potholes? as important on a national scale as the ment seems to be a particular political While it never, ever excuses unprofes selection of a Supreme Court justice, party affiliation. I also don't under sional or uncivil behavior from the Bar, nonetheless the apathy and resignation stand the slant toward government Page 4 The Docket August 2005 lawyers. Being an abso lutely excel thought process with us. It would we open th e door for a more di ve rse lent, experi enced trial lawyer does not increase confidence and respect. judiciary, which represents all of our constituency so that we can work necessa rily make one a good judge. I I have no desire to res ume cool also have a proprietary interest in the together to strength en our service and relations w ith the Bench. I am very th e confidence of the public. disregard toward the opi nion of the much a "homer,1f and w hen someone Bar members. Why are cand idates from south of the border criticiz es one Please check out the rest of The whom we find highly qualified not of our judges I am th e first to attack Docket for meeting and activity highl y qualified when the Circuits back. I will also point out that while I announ cements, and please try to par meet, and converse ly why do II not rec may sometimes question a judge's ticipate. The Bar Association is only as ommended" candidates suddenly competence, sanity or intelligence, I active as you make it. become appea ling? It is true th at peo have never, ever, ever questioned the Talk to you again next month. ple grow into jobs, and it is also true integrity of any of our judges, nor have that th e Ci rcuits have an insight into I hea rd it questi oned from inside or the job. I just w ish they'd share the out. I'm only asking, entreating, that
%e Justinian Society of Itaaan-YLmerican Lawyers
Confia[fy invites you to attentf the annua[ La/&- County 2?gdMass at St. Mary of the La/(g. Seminary Satunfay, 5:30 p.m. October 22, 2005 Save the 'Date
If you wou[t! fi/&- to hefp with this event, contact .9Lttorney 2?JJbert Smith, Jr. at 847-945-3455. August 2005 The Docket PageS
Chief Judge's Page
by Chief Judge Christopher C. Starck
hen I took over the helm of and maybe we consider getting a want that anyway? And how about the Fighting 19th, I never shredder to get rid of our important the financial affidavits in divorce cases W expected that security would papers. But how vigi lant are we real or in non-support matters? play such a big part in my schedu le ly? And how vigilant are we with our The Supreme Court has addressed each day. Oh sure, I knew that we clients' information? a portion of this concern when it would have our almost-regular discus Think about all of the paperwork amended Supreme Court Ru le 213(j) sion about attorneys having to go that we make public that might present relating to standard interrogatories. through the magnetometers, but who some future problems for our citizens. The rule, wh ich was amended June 2, would have thought that we would all When the Social Security system origi 2005, and became effective immedi become so concerned about our own nally began, the numbers assigned to ately, calls for the production of only safety in the courthouse? The incident citizens were meant only to identify the last four digits of the social securi in Atlanta brought to the forefront that their accounts. Somewhere along th e ty number, not the entire number, we are certainly all at risk and that we way, the social security number has when responding to interrogatories. are all in this together. become a universal 10. The Court is so concerned about the There is a new head of the court problem that the Conference has been Why does your doctor or dentist security division of the Sheriff's tasked with making suggestions for a need your social security number department. Commander Mike solution that would address identity when you come in for a check-up? Blazincic has now taken over this all theft issues in all types of cases. One Does the library really need your num important position. I have spoken to such suggestion is to allow the trial ber when you apply for your library Mike several times since he assumed court to direct the Circuit Clerk to sea l card? Lou Archibald of the States his command. He has assured me that those portions of the record upon Attorney's office gives a wonderful, but his top priority is the personal safety of motion of any party. I am not sure that frightening, presentation about mis those who use the courthouse. While that really solves the problem, and I takes we all make that put us at risk. the security cameras have been know that it will put a great burden on installed in the public areas of the The question that I have been pon the Circuit Clerk. courthouse gives security the advan dering, and with which the Conference Regardless of the ultimate sugges tage of quickly scanning the building of Chief Judges is currently wrestling, tion of the Conference, I suggest that for potential problems, the best prac is how our clients become exposed to we, as attorneys, need to be mindful tice is to prevent incidents before they financial predators by the way that we of t~e privacy rights of our clients occur. That still leaves all of us in the have all done business for decades. and to protect them from those best position of providing information In every mortgage foreclosure case, unscrupulous individuals who regu to court security. If you become a copy of the mortgage is attached to larly troll court files in hopes of find aware of ANY potential problems that the complaint. The mortgage contains ing some useful information they can may arise in our facility, plea.se take the borrower's social security number, use for their own financial gain. your concerns directly to the court and often much other financial infor Remember that the social security security staff. mation. Oftentimes forcible entry and number of even an indigent individ While we are always concerned detainer cases attach the lease, which ual has value when it is sold to a per about personal safety, what are we can contain simi lar information. How son who would not qualify for a doing about identity theft? We see about answers to interrogatories? number on his or her own. Our role those revolting commercials on TV When I practiced, the social security as protector of our clients' rights has where a little old lady is talking with number was a standard question for taken yet another turn in this won the voice of a male motorcycle rider both sides. And why do we need or derful age of technology. ADR SYSTEMS OF AMERICA, LLC
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Real Estate Case Law Update: Eminent Domain Issues
I by Steven B. Bashaw I
1. Eminent Domain - Authority to 735 ILCS 5/7- 102, tha t the complaint Road in the manner intended by the Exercise Power contai n allegations "setting fo rth, by commiss ion necess itated alteri ng th e reference, his, her or their au th ori ty," adjacent ditch to provide drainage and few months ago, the case of was violated because th e reference to prevent fl ooding of th e road way. The Board of Trustees v. Shapiro, 343 Section 6/6-303 was only to alter road empowering statute an d the allegations II I. App. 3d 943, 799 N.E.2d 383 A ways and did not refer to drainage of the complai nt were sufficient to (1 st Dis!. 2003), suggested th at had the ditches. Accordingly, the landowners withstand the moti on to dismiss by Defendant questioned the authority of argued, the sta tutory man date th at the way of traverse. the condemning body under the complaint se t forth every statutory empoweri ng legislation by traverse, he 2, Eminent Domain - Compensation authority th rough which a parcel of might have prevailed because the spe of Tenants and Abandonment Prior land is sought to be taken was violated. cific parcel at question was not incl ud to Possession The Thi rd Distri ct opinion affi rmed ed in the empowering legislati on. The The facts in City of Chicago v. th e Circuit Court of Grundy County's landowner fai led to raise, and th ereby Harris Trust and Savings Bank, 346 II I. decision in favo r of th e Commiss ioner. wa ived, the argument in th at case. Th e App. 3d 609, 804 N.E.2d 72 4 (1st Dis!. A condemning authority must have th e recent case of Trotter v. Spezio, 349 III. 2004), are quite unique, but offer an appro priate authority to acquire land App. 3d 959, 812 N.E.2d 577 (3 d Dis!. interesting insight into condemnation and the legislati ve enactment or reso 2004), however, dea ls with another and what happens when the "timi ng" lution must set forth: (1) the land to be extreme. Here, the landowners argued iss ues are cru cial. in their trave rse th at th e complaint taken, (2) the necess ity for the taking, should be dismissed because it did not and (3) a statement of" the position of In 1999, th e City of Chicago began set forth each and every bas is upon th e commiss ioner w ith res pect to th e condemnation proceedings to acq uire which th e township road commiss ion acquisi tion sufficient to allow the property at the corner of Randolph and er had th e authority to condemn a par landowner or citizen to determine th e State Streets in downtown Chicago. ce l, and lost. board 's pos ition. Th ere is no necessity, Th e property was improved w ith a two how ever, th at the complaint set forth story commercial building that had a The parcel was located at an "5" every authority under which the land is large rooftop billboard sign. One of curve in th e roadway. The purpose for sough t to be taken. In this case, 60S va luable components of th e propert y taking this specific property was to dea l ILCS 5/6-303 provides that roads may was th e lease the owner had w ith w ith the flooding and drainage issues be widened as authority in th e process of widening White Ti e for condemnati on. Road. The complaint was filed alleg "Inherent in thi s authority ing only that the commission was seek is the abi lity to construct VAHL REPORTING ing to "modify, al ter and improve the altered road in a man- W hite Tie Road" under Section 6-303 ner consistent w ith pub- SERVICE of the Highway Code. The acti on com lic safety. As such, it may 30 YEARS EXPERIENCE plained of by th e landowners was th e obviously become neces 110 N, West Street taking for the purpose of alteri ng sa ry to alter ditches and Waukegan, illinois 60085 "Claypool Ditch" adjacent to W hite Ti e other land in proximity to (847) 244-4117 Roa d to provide proper water drai nage the newly al tered road so Conference Room Available and prevent fl ooding on the roadway. it does not overfl ow or The tri al court rejected th e landowner's ~ was h ou!. .. " M odifying Real-Time ASCII Disk Videographer claim th at the statutory requirement of or altering W hite Ti e PageS The Docket August 2005
W hiteco to rent the signage until enjoyment and compensa ti on if there body's authority, (2) that the property November 2001. Th e lease prov ided was no aba ndonment permitted. taken is subject to th e exercise of th e th at the owner of th e property could authority, and (3) that th e ri gh t is not 3. Eminent Domain - Interlocutory terminate th e lease to demolish or add being improperly exercised in th e par Appeal of the Issue of Good Faith to th e building w ith one yea r's prior ti cular proceeding. Here, the owner's Negotiations notice and th at the tenant would all egatiOns that lOOT d id not negotiate remove th e signage w ithin seven days Recent case law has set forth that a in good fa ith as a precondition to filing prior to the termination of the lease. condemning authority must negotiate clearl y relates to whether the ri ght of Th e City sought to condemn W h iteco's in good faith w ith th e owner of prop eminent domain was II being improper lease interest by a quick-take acti on erty as a precondition to filing a pro ly exercised in the particular proceed and the Court determined th e value of ceeding in eminent domain and th en ings." W hile the Em inent Domain Act the leasehold to be $92,400.00. Th e details w hat that requires. (See City of does not spec ifically require good faith City th erea fter deposited $92,400.00 Naperville v. O ld Second Na tional negotiations prior to filing, the appel with the Clerk of the Court, and an Bank of Aurora, 327 III. App. 3d 73 4, late courts have infe rred this as a con order vesting possession and title to 763 N. E. 2d 951 (2d DisI.2002), and dition precedent, and the opinion of Whiteco's leasehold interest in th e City DOT v. 7S 7 Interstate Road the Illinois Supreme Court here agrees was entered. When W hiteco filed its Corporation, 333 III. App. 3d 82 1, 77 7 this is a requiremenl. Further, wheth er petition some time later to withdraw N.E.2d 369 (2d DisI. 2002). The recent there have been attempts at good fa ith the compensation award , the City filed dec ision in D .O. T. v. 7S7 Road negotiations bears directly on the a counter-motion to abandon its tak Corporation, 2004 III. LE XIS 35 1 "improper exercise" of the condemna ing, arguing that a condemning body (2 004), resolves a divergence among tion authority, and the ruling of th e ca n abandon the taking at an y time the appellate districts relati ng to trial court on this issue is properl y before it has taken both title and pos wheth er th e good faith negoti ation appea led in an interl ocutory proceed session of the propert y. In th e motion, iss ue is a matter th an can be appea led ing. Th e Fifth District's ruling in th e City advised the tri al court th at on an interl ocutory bas is. Previously, SWIDA v. National City did not offer beca use th ere had been a Signifi ca nt th e Fifth District had considered thi s an alys is or a basis for determining th at delay in the downtown re-develop question and held in Southwestern there was no interl ocutory ri ght and ment project the lease had actu ally Illinois Development Authority v. the Supreme Court's affirmation of the terminated by lapse of time and th ere National City En vironmental LL C, 304 Fi fth D istrict's ruling in that case did was nothing remaining to be con III. App. 3d 542, 710 N .E.2d 896 (5 th not consider the interl ocutory as pect demned. It no longer needed to con DisI.2002), that the iss ue of good fai th of th e case in its decision. demn th e lease ho ld, so it simply negotiation is not a proper subject of Further, language in this decision is an interl ocuto ry appeal. Th e Third wished to abandon th e condemnation. instructi ve in that it highlights the Whiteco res ponded th at once th e City D is tri ct, however, in DOT v. Hunz iker, Emi nent Domain Act requiremen t that had acquired title by th e Order vesting 342 III. App. 3d 588, 796 N.E .2d 122 a letter be sent to th e property owner title and possession, it no longer was (3 d Dist. 2003), had hel d otherwise, by certified mail, return recei pt abl e to abandon. Th ere was no dispute and th e Second D istrict in the case requested, at leas t 60 days before filing th at W hiteco had retained possession below foll owed the Third District opin a petition, stating th e amount of com of the sign throughout th e interim peri ion, ho lding th at an interl ocutory pensa tion offered, the bas is upon od. Accord ingly, "Following th e plain appea l would lie. Th e Illinois Supreme which the compensation offer was and ordinary language in 735 ILC5 Court granted lOOT's request for leave computed, and advising the owner that 5/Section 7- 11 0, citing Lulay v. Lulay, to appea l to resolve the conflict and the agency w ill continue to seek a 193 III. 2d 455, at 466, abandonment granted the DuPage County Forest negotiated agreement with the proper of the condemnation proceeding is Dist ri ct leave to fil e an amicus brief. ty owner. " ... these noti ce provisions precluded only after a plai ntiff has In the trial court, the owners are mandatory." taken possess ion of the property." alleged that lOOT's petitions were 4. Eminent Domain - Appraisals of Deposit of th e awa rd sum did not cur fatall y defecti ve beca use th ey failed to Comparable Property, Potential tail the ri ght to aba ndon. W hiteco all ege a bona fide attempt to reach a Re-zoning and Traverse to continued to enjoy possession of the negotiated agreement. Foll owing a Challenge Authority to Condemn billboard space and continued to use two-day hearing, the trial court denied th e space for adve rtisin g. Th e constitu the owner's motion to di smiss, and a The University of Illinois sought to tional protecti ons due to an owner in noti ce of interl ocutory appea l was take W illiam Sh apiro's property on th e th e exercise of eminent domain extend fil ed pu rs uant to Supreme Court Rul e nea r west side of Chi cago to expand its to a leasehold tenant, and a lessee 307(a)(7). ca mpus in Board of Tru stees v. does have an expectancy that the lease Shapiro, 343 III. App. 3d 943, 799 Supreme Court Rul e 307(a)(7) wi ll be renewed, but here compensat N .E.2d 383 (1 st DisI.2003). Shapiro's specifically provides for appeals limit ing Whiteco would have placed it in a propert y was a vaca nt and unimproved ed to th e three iss ues set forth in th e better position than it would have been lot zoned for industrial use onl y and at Eminent Domain Act, Section 7- in, had the city not proceeded, trial he attempted to rely upon two because it would receive both use and 104(b), including: (1) the condemning August 2005 The Docket Page 9
appraisers to establish value. O ne, when it has been specifi cal ly con exercising that righl. .. the questi on of however, was barred by vi rtu e of th e ferred by legislative enactment. .. ," a whether th e Department must disclose grant of a motion in limine for failure to failure to object to the condemnation its appraisal report s is appea lable produce th e appraiser for a deposition. by traverse waives the jurisdictional beca use of its relationship to th e issue The second appraise r relied upon four iss ue. A "trave rs e" se rves as a motion of good faith negotiati ons." comparable properties to es tablish to deny the lega l right of the com Noting that a good faith attempt to value, three of which were based on plainant in a co nd emnati on case, and reach an agreement with th e propert y sales made under th rea t of condemna the property owner bea rs th e burden of owner is a condition precedent to the tion. Th ese properties were also claming and presenting evidence that initiation of condemnati on proceed the municipality lacks authority to acknowledged to be zoned for com ings, th e Court holds th at th e con mercial use. Th e University sought condemn. If not rai sed, the owner demner MUST disclose an appraisal 'I and obta ined an order in limine from cannot attack th e condemnation on report used to esta blish an offer of com the tri al court to keep th e appraiser appeal, even by correctly noting th e pensation in order to establish a good I from usi ng val ues of the three proper authority of the legislati on was faith att empt has occurred. 735 ILCS ties which were under threat of con exceeded. 5.7-102 sets forth the precondition to demnation and also obtained a finding I 5. Eminent Domain - Obligation to filing a condemnati on complaint: (1) at that they were not "comparabl e" sa les Negotiate in Good Faith and least 60 days before filing, a certified beca use of th ei r zoning. The trial court Disclosure of Appraisal Report to letter, return receipt requ es ted, to the also struck the appraiser's testimony Property Owners owner of th e property, (2) setting forth that th ere was a possibility of rezon ing the amount of compensation proposed The dec ision in of Shapiro's property to commercial use Department and th e ba sis for computing it, (3) a v. 342 III. as indicative of va lu e. Transportation Hunziker, statement that the agency continues to App. 3d 588, 796 N .E.2d 122 (3 d Dist. O n appeal, the First District seek a negotiated agreement, and (4) in 2003), is a further refinement in the affirmed, noting that "it is well es tab th e abse nc e of an agreement, a court growing body of law requiring that li shed that property sales made under proceeding w ill be initiated. While the public bodies negotiate in good faith threat of condemnation are not reli Department here argued that th e "Bas is able evidence of fair market as a precondition to the filing of a con for Computing Total Approved value ... because th e party asserting the demnation action. Here, Hunziker Compensation and Offer to Purchase" sa le evidence ca nnot establish that the received notice that the Department of satisfied th e statutory mandate, the property was 'sold freely and in the Transportation intended to take a per Appellate Court disagreed. manent ri gh t of way, rem ove a portion open market'. II The admission of ev i of asphalt paving, cu rbs , landsca ping, The taking of private property is in den ce of comparable sales in condem derogation of individual rights, and parking lot fixtures an d an advert ising nation cases is entirely within th e dis statutes empowering the taking must sign from th e land on which a Burger cretion of th e trial court and will not be strictly construed to protect the King res taurant stood, in order to be disturbed absent an abuse of di s ri ghts of the property owners. Th e cretion. While a "reasonable proba widen Interstate 74. He was provided Courts have previously held that the with a detailed "Basis for Computing bility of rezoning is a proper fa ctor to Eminent Domain Act "evidences clear be considered in determining the Total Approved Compensation and Iya public policy to encourage volun value of property taken in a condem Offer to Purchase" indicating a total tary acquisitions of property and to dis nation proceeding ... lthere must be compensation fi gure of $72,000, but cou rage forced appropriations th" ugh al ... preliminary showing as to the rea th e Department den ied his request for th e exercise of the right of eminent sonab le probability of rezoning" a copy of the apprai sa l report on which domain." And, " Finally, req uiring the before the witness may tes tify. There the offer was ba sed. The Department Department to disclose its appraisa l was no preliminary showing here and, stated its pol icy was "not to rel ease reports helps to leve l th e playing fi eld therefore, the trial court correctly appraisals except in response to an between the condemner and the prop barred the testimony. appropriate di scovery requ est. " erty owner." Accordingly, "Requiring Finally, although there was clearly Hunziker filed a traverse, motion to appr~i sa l disclosure as part of that an is sue of whether the Board had dismiss and a motion for expedited good faith effort enables the property authority to condemn this particular discovery. After th e appraisals were owner to assess the reasonableness of property, as "not designated as one of provided in res ponse to discovery, the the Department's offer without incur the 75 properties to be acqui red" by trial court denied the traverse and dis ring th e expense of hiring his own specific ta x parcel numbers set forth in missal motions, finding that IDOT was appraiser," and is only fair where, as the resolution, beca use Shapiro fai led not required to furnish copies of the distinct from "a private negotiation to file a trave rse or motion to dismi ss appraisa ls during negoti ation. where either party ca n choose to wa lk within the time granted by the court, Hunziker filed an interlocutory appeal, away from the negotiation if the price any objection to the authority of the and the decision holds that the Court is not right," the owner cannot "walk Board to take the property was waived. has jurisdiction to hear such an appeal away" from th e transaction in condem Even though "A municipality can only "Since good faith negotiation by the nation, and wi II incur costs and exercise the power of eminent domain condemner is a condition precedent to expense of defense of th e condemna- ~Nicasa Positive Choices. 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tion if th e offer is not accepted. based on that process. Kelley's case on one here, a court may find that when Requiring disclosure of the appraisal is the iss ue of va lue consisted of testimo different uses of the property are eaS il y appropriate where the agency is ny of two appraisers, each of which delineated, a separate va luation may required to act in good fa ith and the aSS igned different square foot va lues to be appropriate. With a less certain parties are negotiatin g on an un even areas of the property according to the standard , the unit rule unravels alto "playing fi eld." justice Lytton dissent different highest and best use of differ gether, and just compen sa tion ed, noting that "Th e majority labors ent parts of the whole parcel. becomes an increaSingly difficult and over a definition of 'basis: pi cks one Accordingly, because th e tract so ught fl uid proposition to resolve. We find that su its it, and decides that 'bas is' by I DOT was on the roadway and had no compelling reason to abandon th e means 'appraisa l' ... The statute does commercial potential, one appraiser unit rule in this case." not require a letter enclosing an ass igned a higher per unit va lue for that justi ce Holdridge concurred spe appraisa l; it requires the letter to give portion th an to other portions of th e Cially, noting that th ere is "no authori the property owner the basis for the parcel. The oth er appraiser divided the ty to estab lish that our supreme court compensation. A 'basis' is simply 289 acre parcel into separate tracts has ever departed from the unit rul e." thaL .. a basis. 'Basis' is not 'appraisa l.' based on three "zones of use" consist Th e HP/Meachum case reasoning, " Drawing on a federal case from th e ing of an 80 acre commercial use zone, justice Holdridge argues, clearly con Western District of Kentucky, Wise v. a 201 ac re res idential travenes the "unit rule" and should be United States, and the provisions of subdivision/development zone, and a characteri zed as an lIexcepti on" rath er va ri ous states from Alabama to New 10 acre of residential use zone, and th an an "extension." "The unit rul e Jersey and California where a written assigned differing va lues to the different almost never achieves that purpose [to statement and summary of the calcula zones. I DOT contended that thi s provide just compensation]. Simply tion of compensation has been process of assigning different va lu es to put, the 'unit rule' ignores realities of approved over disclosure of an different portions of the parce l violated land va luation and should give way. appraisa l, justi ce Lytton attacks the the "unit rule" of valuation. The "unit Th e approach articulated in majority prem ise: II Furth erm ore, an rul e" was developed in th e case of City HP/Meachum is not an extension of appraisa l does not put the property of Springfield v. West Koke Mill th e unit rule, but an exception that owner on a better footing for negoti a Development Corp. , 312 III. App. 3d should be all owed to swa llow up the tion. Nothing changes. Landowners 900, 904, 728 N.E.2d 781 (2000), and rule. Our supreme court should revis would still need to obtain th eir own is refl ected in Illinois Pattern jury it the iss ue." appraisa l to determine wheth er the Instruction No. 300.44. It provides th at land may be worth more th an the DOT in partial takings, the tract taken mu st 7. Escrow Accounts - Disbursement appraisal reflects," and ends w ith th e be va lued as part of the whole, and not of Earnest Money Without pred iction that "Th e majority's opinion as a separate tract from the whole. In Authorization DOT v. HP/Meachum Land Limited will undoubted ly discourage state In International Cap ital Corporation agencies from getting any appraisals at Partnership, 245 III. App. 3d 252, 255, v. Moyer, 347 III. App. 3d 11 6, 806 all. Th at would be an unfortunate 614 N.E.2d 485 (1993), the Cou rt N.E .2d 11 66 (1st Dis!. 2004), Inter result of this new rule." "extended" the unit rule to allow for national sued Greg Moyer and tracts to be va lued separately in partial 6. Eminent Domain - Partial Taking Millichap Real Estate Investment takings if there are clearly cognizable Valuation According to the "Unit Brokerage Company of Chicago different highest and best uses for dif Rule" - an 'Extension' VS. an (M&M), seeking damages for disb ursing ferent parts of the land and where dif 'Exception' of the Rule that Should ea rn est money deposited in escrow ferent portions of the property are rec Replace the Method of Valuation with M&M as the broker in a purchase ognizably distinct from each other. transaction for a 1 28 unit apartment Th e Illinois Department of Noting that "Th e court permitted a nar Transportation filed a complaint for row extension of the building in M adison, Wisconsin. condemnation to acquire 1.947 acres rule because it recog- of land in ord er to widen an intersec nized th e substantial tion in Plainfie ld, Illinois, in differences in va lue Department of Transportation v. Kelley, between the wetland 352 III. App. 3d 278, 815 N.E.2d 1214 and on -wetland prop (3 d Dis!. 2004). The tract sought was erty" in the West Koke DEPOSITION REPORTERS part of a 289 acre parcel of land, which Mill case, the Court included a home va lued at over here did not find the COURT REPOR'l5lS $1 ,000,000, a second farm residence, same "clearl y delineat- farmland, and a small segment of wet ed boundaries" to jus- P.O. Box 9275 WaUkegan, IL 60079 lands along th e DuPage River. At the tify employing the (847) 356-6834 hearing to determine va luation, IDOT's "extension" of the rule Deborah L. Severson, CSR (847) 356-5374 FAA appraiser testified that he had analyzed despite th e "zone of the entire parcel's va lue and arrived at use" analysi s. II ln par- his value for the condemned portion tial takings such as the Page 12 The Docket August 2005
When th e contract was originally exe duty in releasing the escrowed funds w ith the instructions of th e oth er ca nnot cuted in Apri I 1998, ICC depOS ited w ithout authori za ti on and included escape being held accountable for its $25,000 as earnest money w ith M&M prejudgment interest. actions. Faced with this dilemm a, th e Bank's only prudent course of action for a cl os ing that was intended to take The reasoning th at since th e oral would have been to file an acti on inter pl ace in Jul y 1998. Th ere was no written escrow instructions did not direct M &M pleading [the se llers) and [the pur escrow agreement. In April 1998, ICC to pay th e fu nds to the sellers upon a chasers) and deposit th e docu ments requested an extension of th e closing spec ific condition, th e disbursement w ith th e court. [C itation.)" McBride v. date and added $10,000 to the earnest w ithout authori zation was a violation of The Commercial Bank of Champaign, money escrow. In October, ICC M&M 's duty to hold the funds for the 101 III. App. 3d 760, 765-66, 428 requested anoth er extension by lett er mutual benefit of th e parties was N.E .2d 739, 742 (4th Dist. 1981). Th e and deposited an additional $5,000 to approved by the Appell ate Court. The additional authority provided by this bring the earn est money escrow to a decision on appeal rejected the broker's dec ision is the reference to the Illinois total of $40,000.00. The letter specifi rationale th at since the modification let Administrati ve Code, 68 III.Adm .Code ca lly stated "We would appreciate the ter of October 1998 deS ignated the Section 1450.40, (now found at 68 Sell er reinstating and extending th e earnest money as "liquidated dam III.Adm.Code Section 1450. 175(h)): "In contract to a final closing date on or ages", this gave M &M authority to dis th e event of a dispute over the return or before December 15, 1998. In consid burse when the cl osing did not occur forfeiture of any escrow moni es held by eration for this extension, I am prepared on December 15, 1998. "Moreover, th e broker ... the broker shall continue to to provide a check in the amount of 'liquidated damages' means 'a n hold th e deposit in his special account: $5, 000 to be added to th e previously amount contractually stipulated as a (A) until he has a written release from submitted $35,000 earnest money reasonable estimation of actu al dam all parti es consenting to its disposi ti on; depOSit, which will be considered liqui ages to be recovered by one party if the (B) until a civil action is filed." dated damages if the property is not other party breaches," but th e reference purchased by our investm ent group." in th e October letter "merely deter The Brokers were, however, more Thi s letter was signed by the Se ller mined th e amount of damages, not su ccessful w ith their other, more ingen accepting th e request. When the trans what constituted a breach of contract or ious, assertion relating to th e trial action did not close in December 1998, under what conditions M &M could dis courfs award of damages. Because ICC th e se llers demanded M&M release th e burse the escrowed funds." never established th at the seller earnest money and M&M wrote to ICC Distinguishing th e rul ing th at a distribu breached the contract, permitting it to advising of the demand and requesting tion of escrowed funds was not a recover rath er th an forfeit its ea rn est authori zation to release th e fund s. ICC breach of fidUCiary duty where th e money, th e Bro ker argued, th e trial replied th at it was working on securing terms of a written agreement allow dis court's award of th e amount of ea rnest th e funds to complete the transaction bursement without written au thoriza money as damages was in error. Th e and that it "would li ke to request that tion in Fa ntino v. Lenders Title, the Appellate Court agreed and reversed the funds remain in escrow." In M ay Court held that here there was no writ this portion of the case, holding that 1999, ICC co ntacted M &M and was ten agreement and the October 1998 since th ere was no judicial determ ina told th at it had "bee n pressured by the letter did not authori ze distribution. tion as to whether ICC would be enti se !.l ers into releaS ing th e escrowed Accordingly, M &M was obligated by its tled to a return of its earn est money, " In funds" and did so upon receipt of an fiduciary duty to continue to hold th e the absence of a finding that ICC was indemnification agreement from the fu nds for th e mutual benefit of the par entitled to the return of its ea rnest se llers . ICC never received a noti ce of ties. The imminently quotable language money, M &M 's breach of its fiduciary termination of the contract from th e for practitioners is: "An escrowee which duty does not automatica lly entitle ICC se llers. The trial co urt granted judgment is willing to ignore the inst ructions of to damages in the amount of th e agai nst M&M for breach of its fidUCiary one of its prinCipals in order to comply escrowed funds." Since the award of
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I' August 2005 The Docket Page 13
damages must be related to the dam by devise. David Kevi n's children, ry convers ion because of the language ages proximately cause by th e di sburse Jennifer and Kevin, however, argued creating a "fee simple" in the heirs of ment of the funds, a remand for a new that Section 6 of th e Conveyances Act the body of David's so n. By giving his hearing on damages was necessary. does not apply and the remainder descendants a fee si mple estate in his interes ts were contingent until the will, Ralph destroyed th e "fee tail " by 8. Estates in land - life Estates, death of the life tenant, their fath er cutting off the right of reve rsion to his fee Tails and Vesting David Kevin. Because Karen prede heirs should there ever not be any Although perhaps more germane to ceased David, their argument contin "heirs of the body of my son." Because an estate planning case law review, I ued, her rema inder interest did not a fee tail was not created, the couldn't help but visualize my law vest and she was not able to devise a Conveyances Act did not apply to con sc hool real estate professor, eyes a 1/3 interest to Ian. Rather, at th e time ve rt the title to a vested remainder with twinkle, going through the explanation of David's death, only Ian and David a life estate at the time of creation. of "a brief history" of th e fee tail set Kevi n were surviving, and th erefore Nonetheless, "Absent th e applica forth in the Third District opinion in they each received a 50% ves ted tion of the fee tail estate and the Illinois Dempsey v. Dempsey, 342 III. App. 3d remainder estate. (You may have to Conveyance Act, we are left with the 969, 795 N .E.2d 996 (3d DisI. 2003). diagram thi s.) Th e ultimate legal iss ue plain language of the w ill," whereby The facts of the case, in si mplified form, is whether the remainder interests vest Ralph gave a life estate to David w ith are th at Ralph Dempsey left a wilileav ed upon th e death of the last life ten the remainder to the heirs of David's ant, David, or upon Ra lph's death, ing his real estate in Fulton County as body in fee simple. Whether the follows: (1 ) a life estate to hi s w ife under the Conveyances Act, or, inde remainder to heirs or heirs of a living pendent of th e Conveyances Act, upon Gertrude, followed by (2) a life estate to person's body is con tin ge nt or vested is th e birth of David's chi ldren. his son David and th e so n's w ife settled law in Illinois; it is contingent Evangel ine, and for the lifetime of the Th e Third District affirmed th e trial until the death of th e life es tate meas survivor of them, (3) with th e remainder court's division of the property into two uring life. (Remember the 'trick ques to the "heirs of the body" of his son ha lf interests, (5 0% to Ian and 50% to tion' of th e Estates final exam begin David. The word s contained in th e Jenni fer and Kevin as David Kevin 's ning with a telephone book listing of devise in the will describing the remain heirs per stirpes) based upon a finding relatives and then as king for the names der were "to the heirs of the body of my that, while under the Conveya nces Act, of Joe's 'heirs' when Joe is not yet son ... share and share alike, and in fee the remainder interests would have dead? Answer: Joe doesn't have any si mple." Then, of course, folks began to vested upon th e death of th e holder of heirs until he dies!) Here, since th e pass away in a bit of an unexpected th e last life estate, th e words of devise language of th e wi II created a fee si m order: Ralph in 1956, Gertrude in " In fee simple" destroyed th e possibili pie in the heirs of the body of David, 1961 , David's son, David Kevin in ty of a fee tai l by vesting title immedi and that fee simple did not vest until 1981 , David's wife, Evangeline, in ately rath er than contingently, making David's death in 1999, (at which time, 1984, David's daughter Karen in 1998, th e Conveyances Act "convers ion" of Karen's interes t, she having alrea dy and David in 1999. W hen David died, th e estate inapplicable. died in 1998 w ith no heirs, had thereby terminating his life estate, the lapsed); when only Ian and David The decision begi ns with a "bri ef surviving "heirs of his body" were his Kevin 's children were the remaining history of the fee tail," starting in only surviving son, lan, and two chil heirs of David's body. Ian took 50% as medieva l times as a vehicle to keep dren, Jennifer and Kevin, of his title to lands within a family, to Thomas one of two-vested remaindermen , and deceased son, David Kevin. Jennifer and Kevin took 25% each per Jefferson's opposition to the form as a as the heirs of David Kevin. Th e question before the trial court "symbol of hereditary aristocracy," and stirpes "The remainder is contingent and vest in this action to declare th e interests of reform legislation in the United States ed upon David's death . At the moment the three surviving heirs was WHEN in the nineteenth ce ntury culminating did the remainder interests vest? Ian in Illinois' action in1 82 7 abolishing the of David's death, his heirs were deter mined. The tri al court correctly ruled argued that since Ralph's w ill created fee tail. Th e Illinois Conveyances Act that th e estate be distributed a fee tail in David, and Section 6 of the provides th at what would otherwise per stirpes, by representation based upon the heirs Conveyances Act, 765 IlCS 5/6, con have been a fee tail is statutorily con verts a fee tail into a life estate fo l ve rted into a life estate in the grantee, of the body of David determined at the lowed by a vested remainder in fee with a fee simple remainder in the time of his death, following Karen's simple, upon Ralphs's death David had grantee's children. If the grantee has no death without issue, with defendant only a life estate and his children had children, th e remainder is contingent, taking a one-half share, and plaintiffs, through their father, taking a one-quar a vested remainder in fee . This would and if there are children, the remainder ter share each. result in Ian owning a 2/3 interest in is ves ted subject to expansion or the rea l estate because 1/3 would have "reopening" for any after-born chil vested in himse lf, Karen and David dren. If no ch ildren are born, the estate Steven B. Bashaw of Steven B. Bashaw, upon Ralph's death, and Karen there reverts to th e heirs of the grantee. p.e., 7307 West 22nd Street, Suite 7072, after left her 1/3 to Ian in her w ill; ergo Here, however, the words of dev ise did Oak Brook, Illinois 60525; Tel. (630) 472- a 2/3 total interest by vesting following NOT create a fee tail subject to statuto- 9990; ....mail: [email protected].
August 2005 The Docket Page 15
Asset Protection Changes by the New Bankruptcy Act
by Robert J. Kolasa
he Bankruptcy Abuse and debtor's principal res idence (i.e., located in a single state for such 730- Consumer Protection Act of 2005 homestead) from creditor collection. day period, the place in which the T(P ublic Law No 109-8, i.e., the By compari son, debtors domiciled in debtor's domicile was located (or "Act") was signed into law by President Texas and Fl orida have an unlimited 180 days immediately preceding the George W. Bush on April 20, 2005, and homestead exempti on. On the oth er 730-day period (or the longer por is generally effective on October 17, hand, under 735 ILCS 5/ 12- 1006, tion of such 180-day period) controls. 2005.' Thi s is the second part of a two Illinois seemingly provides an unlimit B. $125.000 Homestead Exemption part analys is of th e Act. The prior arti ed exemption (or retirement plans and i( Debtor does not meet 1,2 15- cl e (which appeared in th e Jul y issue of IRAs, whereas many states (prior to Day Residency Rul e. In addition The Docked outlined how the Act changes made by th e Act, discussed to th e above 730-day rule, fo rces many individual consumer below) had less generous exemptions. Sec tion 522(b)(2)(A} generally debtors from Chapter 7 to Chapter 13 Accordingly, debtors under prior imposes an aggregate monetary proceedings, requiring five yea rs of pay la w were encouraged to engage in pre limitation of $125,000 on the ments to unsecured creditors. This arti bankruptcy plan ning which entai led homes tea d exemption that a cle discusses how the Act Sig nificantl y moving at the last second to some debtor may claim as exempt changes the rul es rela ting to bankruptcy oth er jurisdict ion (a nd res iding there forum shopping, exemption planning under state law unl ess th e debtor 180 days) in ord er to se lect the most owned th e property for more than and asset protection tru sts. favorable exemption law. Egregious 1,215 days (3 yea rs, 4 months) abuses res ulted, such as th e well-pub prior to the (iling of the bankruptcy Limitations on Forum Shopping licized cases o( (ormer ba seball com· petition. In general , an individual has va ri mi ss ioner, Bowie Kuhn , and movie ous bankruptcy "exemptions" which actor, Burt Reynolds, both of whom Import antly, th e $125,000 limita exclude se lected assets from th e reach were ab le to shelter million-dollar tion does not appl y to th e principal of creditors. Section 522(b) of th e homes (rom cred itors. In a humorous res idence of a "family farm er" or Bankruptcy Code gives an individual note, the situation got so notori ous that to any amounts rolled over (rom a debtor the choice of utilizing the fed one Miami bankruptcy judge told th e prior res idence (acq uired prior to era l exemptions, or the state exemp New York Times, "You could shelter th e 1,2 15 day peri od) to a new tions of th e debtor'S domicile (unless th e Taj Mahal in this State and no one principal res idence, as long as such state has "opted out" of the feder could do anything about it.'" both residences are located in the al exemptions, wherein on ly the state Two new rul es now dramatically cur same state. Going the other way, exemptions can be utilized). Illinois tail last-minute residency changes in the $125,000 exemption always has opted out of th e federal exemp order to utilize favorable exemption laws: applies (rega rdless of home own tions, therefore, in a bankruptcy pro ership) for debtors who are con A. 730-Day Res idency Requirement for ceeding, individual Illinois debtors victed of various specified finan State Exemptions. Section have available th e specific exemptions cial crimes (Bernie Ebbers, where 522(b)(3}(A} of the Bankruptcy Code detailed in 730 ILCS 5/12-1001, et seq. do you live?). now requires that a debtor be domi Th ere are tremendous differences ciled in a state 730 days (prior law While indisputably th e above rul es between th e federal exemption rul es was 180 days) immediately preceding go a long way in dealing with last and the laws of th e various states. For the bankruptcy petition in order to minute shifting of domicile to enjoy example, Illinois law (735 ILCS 5/12- claim that state's exemption. I( the favorable exemptions, critics com 901) exempts $15,000 of a jo int debtor's domicile has not been plained that they did not go far Page 16 The Docket August 2005 enough. National dollar caps (ranging hyper-tech nical construction that th e $1 erally contribute $250,000 each to from $125,000 to $1 million) to th e million cap of Section 522(n) modifies four new Section 529 plans for his homestead exempti on were unsuc the Illinois exemption statute. This children in order to exclude $1 million cessfully proposed during th e legisla read ing ignores Congress' cl ear intent from the bankruptcy estate. As long as ti ve process. Accordingly, th e rule to liberalize (not restri ct) reti re ment such transfers were not fo und to be seems to be th at you ca n indeed "shel plan exemptions and th ere is nothing in fraudulent transfers, th e debtor after ter the Taj Mahal" in Florida and Texas, the legislative history to suggest other hi s bankruptcy discharge st ill has as long as you have lived th ere for wise. It would seem that if somehow an access to $1 million. Thi s is because more th an 1,2 15 days and not com industrious creditor convinced a bank under current tax rul es, the debtor as mitted any financial crimes. ruptcy judge to accept this argument, account owner of th e Section 529 Congress would immediately pass a pl ans could distribute th e accounts IRAs & Retirement Plans techni ca l correction of Section 522 (n) directl y to himse lf, w ith only income Sections 522 (b)( 3) and 522(d)( 12) to reverse th e judge. Moreover, as dis ta xes and a 10% penalty on account enact a broad sweeping federal ba nk cussed above, this matter is rea lly a appreciation. Needless to say, th e per ruptcy exemption for "retirement fun ds paper ti ger in th at since most IRAs are ceived abu se of pre-bankruptcy contri to th e extent that th ose funds are in a funded from qualified pl an roll overs, butions to Section 529 plans may like fund or account that is exempt from the $1 million limitati on should not ly lead ca lls to change this prov ision, ta xation under section 401, 403, 40B , practica lly apply in most circum while at th e moment it remains a glar 40BA, 41 4, 457 or 501(a) of th e stances. For conservative pl anners, ing loophole/planning opportunity. Intern al Revenu e Code of 19B6." until further cl arification is released, the Negative Effect on Asset Protection Since such exemption depends upon advice is to keep IRAs funded w ith Trusts? qual ifica ti on under th e Internal rollover contributions separate from Revenue Code, thi s covers most retire those funded w ith annual contributions. Background on Foreign and ment plans, incl uding IRAs and Roth Domesti c Asset Protection Trusts. New Preferred Exclusion for 529 IR As. However, Section 522(n) limits Plans and Education I RAs In general, Asset Protecti on Tru sts th e exempti on to an aggregate of $1 ("APTs") are se lf-settl ed trusts wherein million for Roth IRAs and traditional In a major boost for ed uca tion sav th e settlor rema ins as a tru st benefi ci IR As (oth er than SEPs or SIMPLE retire ings, Sections 541(b)( 5) & (b)( 6) of the ary. Most states have historica lly pre ment accounts). Section 522(n) then Ban kruptcy Code were amended to cluded a sett lor fro m obtain ing credi excludes rollover contributions from provide an exclusion from th e ban k tor protection if he remains a tr ust ben retirement plans to IR As from this rule, rupt cy estate of certain amounts co n ~ efi ciary. APTs generally rely on statu which mea ns (s ince most IRAs are tributed to edu ca tional IRAs and tory law, which modifies this result. funded from quali fied pl an roll overs), Section 529 tu ition plans. Fi rst, in th e $1 million limitation should not order to achi eve excl usion, co nt r i b u ~ " Foreign APTs" are trusts admin is practica lly apply to most IRAs. tions to such accounts must be made tered by trust compani es in fo reign jurisdictions (such as the Cook Islands For Illinois residents, th e new feder 720 days prior to the filing of th e bank or Nevis) th at permit the trust settlor to al bankruptcy exemption may not be ruptcy petition (funds depos ited remain a disc retionary benefi Ciary, but meaningful as Illinois already has an between 720 and 365 days prior to fil still obtain creditor protection as long expansive exemption statute (735 ILCS ing receive on ly a $5,000 exclusion). as the transfer is not found to be a 5/12-1006) which, subject to fraudu Second, the account-designated bene fraudulent transfer. Th e rea l drawback lent transfer attacks, seems to cover ficiary must be a child, stepchild, from a creditor perspecti ve in pursuing almost ALL plan balances in retirement grandchild or step-grandchild of th e collection actions aga inst these trusts plans and IR As. However, Sections debtor for th e taxable yea r during is that arguably the creditor has to 522(b)(3) would appear to exempt Roth which funds were placed in the obtain a judgment in the fore ign juris IRAs (up to the $1 million cap) and account. Third, speC ified dollar limita diction (th e foreign tru stee ignores th e other retirement structures w hich tions are imposed for new contribu U.S" judgment) in order to get at trust (depending how you read the statute) tions: (j) fo r education IRAs - the paltry assets. Debtors in recent cases' have may not be exempt under Illinois law. $2,000 allowed under existing tax law; been jail ed (or threatened with inca r The big change is that the new law will (ii) for Section 529 plans - the very gen ceration) for refU Sing to comply w ith make it easier for Illinois res idents to erous benchmark of necessary college court orders to repay domestic credi switch domiciles and obtain continued education expenses (which is set on a tors with Foreign APT trust assets protection of retirement plans and IRAs pl an-by-plan bas is, with most plans administered by foreign trust co mpa w ithout fea r of being bushwhacked by accepting contributions until a benefi nies. Th ese courts generally rejected restrictive state exemption laws. ciary's account reaches $250,000). th e debtor's argument th at perform There is a tro ublesome technica l Sect ion 529 plan contri butions may ance of th e turnover order was "impos glitch th at some lawyers have raised permi t significant assets to escape sible," effectively finding th at such questioning whether Illinois' unlimited creditors of th e bankru ptcy estate. For tru sts were really controlled by th e IRA exemption is capped at $1 million exam ple, 72 0 days before bankruptcy, debtor. Proponents of Fo reign APTs under the new law. Thi s is due to a a debtor with four children could gen- contend that th ese cases are based on August 2005 The Docket Page 17 bad facts (sett lor had too much control Th e 10 yea r limitations peri od is a big that one document the "estate plan and/or creditors were known at time of change from the general limitations ning" reasons for APTs, although from transfer) and that as long as there is period of Section 548(a)( l ) which a ta x angle this is illusory as APTs are less control an d an "old and cold" time imposes a 2-year look back (extended largely conduits (grantor trusts) for tax lag between the trust contribution and from 1 yea r by the Act) and th e Illinois purposes, not carving assets ou t of th e cred itor event, such trusts are effective. fraudulent transfer statute (740 ILCs debtor's estate. However, having a tes Th e case law is developing in this area. 160/ 10), wh ich the bankruptcy trustee tamentary scheme inside the APT of ca n utilize, which generall y imposes a "who gets what" upon the sett lor's "Domestic APTs" are domestic 4-year lookback. death arguably develops some reason trusts having their si tus in states that for th e APT structure other th an asset have passed legislation permitting a Th e touchstone of the Act's impact protection. sett lor to rema in a trust beneficiary and on APTs depends on how the courts ach ieve spendthrift creditor protection. will interpret the "actual intent to hin Defenders of APT s contend, "noth Eight states (A las ka, Delaware, der, delay, or defraud" language of ing has changed" by Section 548(e)( l ), Nevada, Rhode Island, Utah, Section 548(e)( l ). This is the sa me lan in th at the sa me fraudulent transfer Oklahoma, South Dakota and guage th at appears in th e fraudulent finding needed to be made by the Missouri) have adopted asset protec tran sfer statutes of Section 548(e)( l ) of judge before or after passage of the Act. tion rules for se lf-settled trusts. W hile th e Ban kruptcy Code and the Illinois Opponents answer that th e Act signa ls the legislation va ri es among th e states, Uniform Fraudulent Transfer Act (740 th e death knel l for APT s and th at to in order to bolster loca l banking busi ILCs 160/5). Th e requisi te intent under implement one at this point probably ness, most of th e states require the these statutes relates to the debtor's constitutes malpractice. In many ways, Domestic APT to have a corporate or "state of mind" (not necessarily insol this seems to be a continuation of the individual trustee domiciled in the ve ncy) w hen establishing the APT. A opposing viewpoints existing before sa me state. However, there is strong debtor admitting that the principal pur the Act as to whether APTs really doubt among many whether Domestic pose of implementing th e APT was for "work," which shou ld ultimately be APTs rea lly "work ." For example, how credi tor avoidance would go a long determined by future case law. could an Alas kan court ignore the Full way to help a creditor establish an However, the long 10-year period by Faith and Credit clause of the intent to hinder, delay, or defraud . For itself has to sow anxiety even in th e Constitution and not enforce an Illinois debtors not making damaging admi s hearts of the staunchest defenders of judgment aga inst an Alaskan APT ? sions, intent ca n also be proved by ci r APTs - thi s is quite a while for aggres Nevertheless, Domestic APTs have cumstantia l evid ence under the enu sive creditors to poke about in a merated "badges of fraud" test (740 recently been heavily marketed by cor debtor's pa st. A practical chilling effect ILC5 160/5(b)), th e principal factors porate tru st departments even th ough for APT practitioners is that the 10-year being retaining control of the property, their asset protection benefits are discovery period means that they most concealing tran sfers, absconding, unsettled, especia ll y for nonresidents likely w ill be on th e hook for malprac transferring substantially all assets, of the enacting state. Until the cases tice claims during this period. Perhaps insolve ncy an d not receiving reason rul e oth erw ise, it may be that such any lawyer setting up APTs should co r ably equiva lent va lue .. trusts offer practica l asset protection by respondingly review his or her mal impos ing a "hurdle" (who's going to To combat allegations of prohibited practice insurance policy and have pay the costs to litigate this issue ?) that inten t under Section s48(e)(1), it would th ei r assets in an APT that "works." only a well-heeled cred itor w ill bear. seem helpful to document all possi ble Un intended Conseq uences of bona fide independent reasons for th e Section 548(e)(1) to Include Structures New Bankruptcy 10-Year Fraudulent APT structure other than asset protec other than APTs? Transfer Statute for Self Settled Tru sts . tion. For Foreign APTs "exporting th e W hat type of interest constitutes a During the Senate's consi deration assets" (i.e., assets are of th e Act, th e New York Tim es on always located over March 2, 2005, ran an article touting seas), a strong reason 111111 DAVID GATES & ASSOCIATES the hypocri sy of denying average would be for the sett L. Americans a bankruptcy discharge lor to ga in access to INDIVIDUAL, MARITAL, AND FAMILY THERAPY while the rich were able to shelter thei r overseas markets not assets from creditors through APTs. avai lable to American • Domtstic Violence • English & Spanish • Aog .r ManalJ8menl • EVeni og & Saturday Appts. Available This article propelled the Senate (after investors. For • Alcohol I Drug ,6.ddiction considering different versions) to adopt Domestic APTs and • Custody, Visitation, • Reasonabl. Rate!> Senator Tal ent's amendment' to the Foreign APTs "import Oivorct Mediation • Licensed Marital & Family Therapist fraudulent tran sfer provisions of ing the law" (i.e., • Christi.tn Counseling • Certitied Alcohol & OrlJO CounselOr Section s48(e)(l) which now provides assets rem ain in the Approved AAMFT Supervisor for a 10 year statute of limitations for United States until an any transfer made "to a self-settled "event of duress "), 847·625·0606 trust or similar device ... with actual this is a harder task. It 501 N. Riverside Dr .. Suite 111 . Gurnee. IL 60031 intent to hinder, delay, or defraud." has been suggested Page 18 The Docket August 2005
"self-settl ed trust or simil ar device" Conclusion wi ll be determined by future case law and technical corrections to the Act. within the meaning of Secti on Th e Ba nkruptcy Ab use a nd S48(e)(1)? Clearl y, APTs fit unde r such Consumer Protecti o n Act of 200S sig Robert}. Kolasa is an attorney prac d efinit io n. However, does the statute nifi cantl y changes pre-bankruptcy ticing estate planning, probate and relate to othe r traditional estate pla n exempti on plann ing. Under the new asset protection in Lake Forest, Illinois. n ing structures suc h as Q ua lifi ed rul es, debtors must li ve in a state fo r at He is also a c. P. A., holds a Master of Pe rsonal Resid e nce Tru sts (QPRTs), least 730 days in o rder to use any of Laws in Taxation deg ree from Charitabl e Lead Tru sts (C LTs), Grantor the ir home state's bankruptcy exemp Georgetown University Law Center Retain ed Annuity Trusts (GRATs) or just tio ns, with a lo nger 1,21 S day reside n and once was an attorn ey fo r the IRS about any other tru st whe re the settl or cy require ment before they can National O ffice, O ffice of Chief reta in s a ri ght to future payme nts? exempt more than $125,000 in home Counsel, in Wa shington, D.C. A constructi on of Sectio n S48(e)(1) stead equity under that state's law. In 1. for an excell ent link to the statutory tan to include trusts oth er than APTs seems addition, the Act provides for a broad guage and articles re lat ing to the Act see like a stretch. Senator Tal ent clearl y was fe de ra l ba nkruptcy exemption of htt p://www.bankru ptcyfinder.comtbankruptcyre referring onl y to APTs as he re marked retire ment fund s, a ltho ugh Illinois formnews.h tml. Also see htt p://thomas.loc.gov/ under Pub lic l aw 109· 8 for links to the o n the Senate Floor, "My amendment is already has a sweepin g exemptio n for Committee Reports, Congress ional Record and simple. It closes the asset protection IRAs and retirement pl ans. A liberal complete leg is lative hi story of the Act. trust loophole by empowering the new bankruptcy exclusio n is a lso 2. House Report 109-031 . ParI 1, Dissenting bankruptcy courts to go back 1 0 years e nacted for educati o nal IRAs and Views, footnote 14, wh ich can be accessed at to take away fraudulent transfers that Secti on S29 plans. Fina ll y, in an effort http:Uthoma s. loc.gov/. criminals have she ltered away in an to foreclose perceived abuses of asset 3. Federal Trade Commission v. Affordable Media, Inc., 179 F3d 1228 (9th (ir. 1999); In re attempt to avoid paying back the ir protecti on trusts, Secti o n S48(e)( 1) Lawrence, 227 B. R. 907 (S.D. Fla 1998); 238 de bts.'" Unfortunately, the inhere nt prov ides a new 10-year limitati ons B.R. 498 (S. D. Fla 19991; 2S1 BR 630 (S.D. Fla vagueness of the statutory language peri od for fra udule nt tra nsfers to asset 2(00); 279 F. 3d 1294 (11th Cir. 2002); Eulich v. U.s., 2004 W l 1844821 (N.D. Tex. 20041. probabl y needs to be clarifi ed by tech protecti on tru sts and similar devices. 4. See remarks of Senator Talent on the Senate ni ca l corrections or case law and until Th e determination of whether thi s new floor explaining his amendment, 151 CongoRe c. then, there is so me room for creditors to provisio n Signifi cantly a ffects asset 52427, 52428 (Mar 10, 2005), which can be arguably apply the statute to encompass protecti on trusts, and possibl y other accessed at http ://thomas.loc.govl. non-APT estate pl anning structures. traditional estate planning structures, S. Id.
Your ad in THE DOCKET reaches more than 700 lawyers in Lake and McHenry Counties.
Call (847) 244-3143 for Advertising Information • Conference Room Rental Local Court Rules • Mailing Labels August 2005 The Docket Page 19 Annual Report of the Ombudsman Program, 2004-2005
by Robert S. Smith, Jr., Ombudsman
Introduction ed th at they should be such because specifically asked to be oth erw ise, this was an organic project which inquiries are made anonymously. needed time to grow and deve lop. Almost all of the reports were con t is now a little more than a year Organic, to this person, meant that cluded when information or explana since we began the program under there really was n't a plan at all. Well, ti on was made to the complainant. On the auspices of the Lake County Bar I there was so rt of a plan, but much few occasions fo llow up meetings Association and the Judges of the a depended upon th e reaction of the were ca ll ed for. Nineteenth Circuit of Lake County membership to thi s pilot program. Th e and, in accord with our agreement, I On a generi c note, and probably a documents were ratified by both th e am submitting this short report to you, system ic note also, the most frequent bench and the bar and the phone line first of all, and also to the members of complaints from both attorn eys and was open and operators, as it is said, our Association and the Judiciary at judges is the seeming inability of prac were standing by. large. titi oners to arrive on time to court hearings and court ca lls and the likeli History Referrals during this past year ness of those calls to begin on time in During this past year, I received Briefly, the Bench and Bar the first place. I am sure that this about 24 referrals. Our program is Ombudsman program was launched comes as no surpri se. I am w riting th e somewhat unique from others in the with the help of the former Chief Judge first draft of this report on an aircraft state in that judges. ca n also make Margaret Mullen and the prior past that was 11/2 hours late leaving inquiry about lawyers as well as attor president of the Bar Richard Kopsick Chicago in fi ne weather to a destina neys inquiring about judges. The ratio effective December 1, 2003. Berle tion which was to have ideal condi was a little more than 1/4 of comments Schwartz, of recent memory, headed ti ons. And 50, as my blood pressu re is or inquiries emanating from the judici th e initial think tank and I had the rising by the minute when thinking ary to an individual bar member; the unfortunate chance to ca ll him one about trying to catch a connecting rest about judges by attorneys. I day with some ideas about, and a flight, I consider this issue. Sometimes received only one ca ll from a member vision about, the possibilities of the our days are like this flight. of the general public, which I declined Ombudsman program. This telephone Unfortunately, we are the slaves of to take. call was a variant of "Rule Number time 'and it is continuously asserting One" about volunteering, and that is After receiving a referral , I decide itself as our master. I wonder whether, "Rule Number One (al" never ca ll a whether or not to go forward with the when the complaints continue about committee chair with "just a few matter and I tell the inquirer that I this issue, we really are looking at the ideas." That ca ll led me to be invited would or would not act on the matter. questions of expectations and of con to write up some of those ideas and Th en, I normally would contact the sistency. When we w ho are practi with the help of Judge Mullen, Judge judge or attorney by telephone, usual ti oners have the ability to form our Winter, Richard Kopsick and the then ly have an informal meeting with the ca lendars to some extent w ithout bi lo executive board of the Bar, the present person, relay the problem or concern cation, we expect that there be consis protocol was established. Early on, and then move th e conversation back tency from the bench as to time. The when asked about the ru les which to the complai nant. The bulk of the bench, on the other hand, does not were established, which seem some· inquiries were made w ith a specific have the freedom to wander from what short and rudimentary, I suggest· incident or person in mind. Unless place to place, looking for an opening Page 20 TIle Docket August 2005 to conduct a hearing, ann bas ica ll y and work as a group to so lutions. At probab ly must and should be reported are held to the sa me room, wa iting for th is time, it is my belief th at th e more to regu latory bodies, anyway. attorn eys to come together. Th e bench people w ho kn ow of an issue or an O ne other thing of note: I believe expects consistency rega rding noti ce item the more likely it is to be broa d th at I haven't do ne enough to make the and checking in so that they ca n move cast. Confidentiality is becoming program known th is past year. Not their ca lls. W ith everyone's schedule somewhat of a luxury in our time, but I th at I should set up office times, but I as it is, planetary alignment an d deep want it to be a hallmark of thi s pro know th at I might be of more use if the w inters in hell so metimes are more gram. The protocol allows for the program were better broadcast. I w ill likely than the idea l, but everyo ne O mbudsman to seek advice from out try to see to other methods of getting seems to be trying to work thi s iss ue side parties and that seemed to work th e program known, es pecially to out as best they ca n. I kn ow we are well this past yea r. So, for th e time younger members. By the way, I can constantl y bombarded w ith th e tw in being, I would suggest th at we keep be reached at (847) 94 <;-3 455. clubs of timeliness and civility but one th e appointment to only one person. I would conclude th at if these weren't am not holding the office as some sort Conclusion issues, we w ould be stu ck hearing of fiefdom, I just w ant to be ca utious Basica lly, it has been a good year. about them all the time. Sermon about the information which comes to Peo ple have b ee n supportive and ended here. th e Ombudsman so that any person other bar associations and judic ial Some suggested changes would feel that they could be revelato associ ations have inquired about how ry w ithout ri sk. Th ere have been no rea l substan we work, which should be an indica tive changes that have been suggested Although there w as so me question tion to us that we are on th e ri ght to me rega rding th e protocol for the at th e beginning of the program about track. I look forward to this coming coming year except to increase the reporting requirements to th e ARDC or yea r and to being of se rvice to o ur number of O mbudsmen. O ne person to th e JIB, no fact situation developed lega l community. suggested that there be a group of two last year that would put th at issue to Robert S. Smith, Jr. is a sole practi or three O mbuds(persons) to oversee th e test. As we anticipated, if any mat tioner in Deerfie ld in the areas of the program. We could share ideas ter w as th at bad in th e first place, it Probate, Guardia nship and Adoption.
Attorneys Salvi, Schostok & Pritchard Selected As Illinois Super Lawyers 2005
It will come as no surprise to the community that all three named partners at Salvi, Schostok & Pritchard P.e. have been selected by their peers as Illinois Super Lawyers. Patrick A. Salvi, Michael P. Schostok & David J. Pritchard were recently featured in the May 2005 issue of Chicago magazine and Illinois Super Lawyer maga zine for being among the best lawyers in the state.
SS&P has been serving Lake County for more than 23 years. Together they have secured more th an 100 settlements or verdicts in excess of $ 1 million dollars for their clients, including $88 mil lion last year alone.
Pat, Mike & David have not only been dedicated to their clients, but have committed their time and talent to their profession. Each attorney legal author, a highly sought after speaker, and has served in leadership posi tions in both bar and professional organizations. It is summed up best when Pat says, "It's not just our practice - it's our passion!"
Salvi , Schostok & Pritchard P.e. concentrates its practice in the areas of personal injury but it is partic ularly regarded for its expertise in medical malpractice litigation. For more information, please feel free to contact Mr. Salvi at 847-249-1227 or visit their web site at www.salvilaw.com. August 2005 The Docket Page 21 Getting a Divorce and Your Spouse Wants a Portion of Your Military Pension Benefit
by Garrick G. Zielinski
he Uniformed Services Former On the surface thi s appears to be month, as opposed to the $500 we Spouses Protection Act (th e Act) eqUitable and an argument ca n be ca lculated in the above scenario, Tgove rn s the terms and conditions made in either event. The major dis· beca use the member continued to rega rding the division of your retired adva ntage to using this formula is th at work after th e divorce was final. pay. Simply stated, they are too th e DFAS will ca lculate th e benefit vo lu Your attorn ey can limit th e poten· minous to completel y expl ain in this based upon th at occurred after events ti al increases w ith language stat ing art icle. Thi s arti cle w ill speC ifically th e date of divorce. W here the prob. th at th e Form er Spouse's benefit is address the fo ur possible meth ods of lem exists is th at none of us any have calcul ated ba sed upon th e covered defining th e portion awarded to your idea as to what the future may bring. earnings th at were in effect on th e soon-to-be form er spouse. In a subse Anytime a formula is used to divide a date of divorce. In th at regard, th e quent articl e, we w ill explore the pension at a later date, chances are the Former Spouse wi II not benefit from issues surro unding th e survivor benefit pension amount at a later date w ill be your additional years of se rvi ce or pl an (SSP ), as well as other issues. greater th an the present day pension any ga in in covered earnings with There are four potential options amount, because of increased ea rnings regard to your benefit ca lculation. when considering a division of retired and accumulated years of se rvice. M any M embers opt for thi s for· pay: a stated dollar amount, a per Under the term s of yo ur Military reti red pay plan, you receive 2 percent mula beca use they also use it to centage amount, a coverture fracti on exclude se rvice th at was earn ed formula and a delayed ord er option. of your average 36-month high cov pri or to the date of marri age. W hile Each has its own adva ntage and/or dis ered earnings, for each yea r of service. your intent may be to excl ude peri· adva ntage to you and/or your form er Do you think that your covered pay ods pri or to marriage w ith th e mar· spouse. Knowi ng how each method w ill continue to ri se or fall in th e ri age cove rture fraction formul a, effec ts your fi nancial situati on could future? Here's an exa mple: let's w ithout the language we've recom potentially put additional retired pay ass ume th at you have accru ed a mended you may not end up with dollars into your pocket. I comment monthly benefit of $1,000 per month, th e outcome you exp ected. on each below. you we re marri ed 15 years, you have 1S years of creditabl e se rvice and your If a marri age coverture formul a is Coverture Fraction Formula intent is to divide the benefit equall y used, the Fo rm er Spouse receives up to the date of divorce. Today, th e her benefit when it is paid to th e Thi s Act states that the payment of equation states th at 15 years of service Member. The Former Spouse's por· an amount of retired pay must be over 15 years of marri age equates to tion 6f the benefit is increased annu· expressed in dol lars or as a percentage 100%, meaning your form er spouse is ally w ith a cost of living adjustment or fraction of disposable retired pay. eligible for 100% of her SO% benefit (COLA), just as the M ember's bene· Th e most common way to divide a or $500 per month. W hat happens if fit. La stl y, unless survivor benefit Military pension that has not ye t th at Member continues to work, and protection (S SP) is elec ted, the matured would be th rough th e use of a retires w ith 30 years of service and his Former Spouse's benefit w ill cease marri age coverture frac tion formula. accrued benefit is now $3,000 per upon death of the M ember. This formul a simply divides the num month? Under thi s scenari o, the equa· Dollar Amount ber of years of creditable service dur tion is 15 years of marri age divided by ing marriage (n umerator), into th e total 30 years of se rvice or SO%. Thu s, th e W ith res pect to a member, using number of years of creditable se rvice form er spouse is eligible for 50% of th e a dollar amount to expres s th e at the time the M ember would retire 50% ma ximum benefit or 25% of awarded portion for a Former (denominator). $3, 000. This equates to $7S0 per Spouse is unquestionably the most Page 22 The Docket August 2005 advantageous division. When express opti on, but for an un-matured pension behind thi s type of order is to notify in g the award using a dollar figure, the it is probably the least acceptable the Milita ry that a Former Spouse has Former Spouse is not afforded a COLA opti on for Members. This is because been awarded a prope rty settlement in adjustment and the Member would you don't know the exact date of regard to the Member's be nefit. This receive that portion added to their por retirement. For example, let's assume method would be used if the re were an ti on of the retired pay. A Membe r's you used the marital coverture fraction impasse on any of the above methods. benefit can be easily calculated if you to award a percentage, such as 15 The o nl y advantage to thi s method is have a history of the Member's annual years of marriage over 20 years of serv that all the necessary information is base pay whi le enrolled in the service. ice (o r 15/20 = 75.00% marital or readily available. Thi s is w ithout ques The Me mber simpl y accrues 2% 37.5% awarded to Former Spouse), tion the least attractive option for any (REDUX ) or 2-1/2% per year for the and th e Membe r decides to stay in the Membe r. It de lays th e division to a first 20 years of the highest 36-months Mil itary lo nger, the Former Spouse gets late r date and requires additionallegaJ base pay. Ass ume that Member's base more than originally inte nded. In fees, time, and benefit de lays. But, if pay is $3,219.60 per month and that's oth e r words, it would be in the there is impasse, this method works also hi s High 36. At 15 years of serv Membe r's best interest not to use a fo r well. How thi s works is, at the date of ice, the Membe r has accrued a month mula or a pe rcentage that would comme nceme nt, all the calculations ly benefit of $965.88 per month divide any future interests. Expressin g are complete a nd a new Mil itary order payable after 20 years of service. the award as a percentage allows for is drafted using a pe rcentage amount Obviously, after 20 years of service the an automatic COLA adjustment to the or a dollar amount based upon factual Member will generate a greater Form er Spouse's benefit in proportion data. monthly benefit than $965.88. But in to the Member's benefit. any event, using this scenari o the Deferred Percentage Former Spouse is e ntitled to 50% or $482.94 at the date of divorce. Under A deferred percentage is simply Carrick C. Zielinski, CFp,CDFA, this scenari o, the Former Spouse will plaCin g an order w ith the Military Divorce Financial So lutions, LLC, not be affo rded a COLA and the today, but leaving th e calculation open Divorce Finan cial Counselors and Member will receive the COLA on the and conclusion open. In that manner, Divorce Financial Analysts, 2229 entire pension. when the Member applies for retired 50uth Kinnickinnic Avenue, pay, al l the parties would be notified Milwaukee, WI 53207, Telephone: Percentage amount and a "clarifying court order" would (414) 294-4755, Toll-Free: 1-877-337- Using a pe rce ntage is another then be reqU ired. The reasoning 7002 www.divfinsolutions.com.
The Professional Difference Litigation Support Group
Service areas include: Business Valuations Divorce DAM, SNEll & TAVEIRNE, Lm. o o Certified Public Accountants o Forensic Accounting o Business Litigation o Fraud & Embezzlement o Business Interruption Accounting + Tax + Consulting o Economic Damages o Bankruptcy o Estate & Gift Tax o Buy/sell Agreements Libertyville & Fox Lake o Shareholder Disputes o Employment Litigation Contact: Skip McCann CPA, CVA Joe Modica CPA, CVA, CMC "When we work with c1ienls we strive to be accessible, to complete work (847) 367-4448 in a timely manner, and to provide the very highest level ofquality. This Professional Difference is whal distinguishes our firm. " www.dstcpa.com August 2005 The Docket Page 23
Brokerage Firms Attempt to Clarify the Confusing Roles and Responsibilities of Their Brokers
by James 1. Eccleston
n April 2005, the SEC adopted a rul e become to differentiate between a bro uct fills a spec ifi c gap in the spectrum that exempts brokers ("regi stered ker and an investment adviser. Let's from trad itional brokerage to managed Irepresentatives") from registering as exa mine the comment letters that accounts." Citigroup believes th at any "inves tment advise rs" under the three major w irehouses submitted. confusion rega rding this gap fi ller Investment Advisers Act of 1940, even Those wi rehouses are Merrill Lynch, account is cured by the following though they are paid asset-based fees UBS (PaineWebbed and Citigroup "clear disclosure." in al l AssetOn e or fixed fees (in lieu of commissions) Global Markets (S mith Barn ey). materials: "AssetOne is a brokerage 50 long as th eir in vestment advice is Merrill Lynch submitted its com account and not an investment adviso ry account." Certain oth er AssetOne "solely incidental" to their brokerage ment letter to the SEC in February mate ri a ls contain thi s disclosure: se rvices and they make adequate dis 2005. Written by its First Vice "AssetOne is not an investment adviso closure. Th ere is a lot of "gray" there! Pres ident and Ass istant General ry account and should not be treated To complicate matt ers further, th e new Counse l, Paul S. Gottlieb, the letter as a substitute for one." In a true leap SEC rul e does require a broker to reg states th at brokerage firms have offered of faith , Mr. Sharp th en claims th at ister as an investment adviser when he "planning se rvices" to th eir clients for such "clear" disclosure "helps or his brokerage firm: (1) holds himse lf many years, and th at th ey "are an inte out to the public as a financial planner investors frame their understand ing gral part of traditional, full service bro and expectations at the outset." or as providing financial planning kerage." There has been much criti services; (2) delivers to his customers a cism regarding the brokerage firm's UBS' (Pain eWebber's) comment let financial plan; or (3) represents to th e giving their registered representatives ter to the SEC demonstrates the extent customer that th e advice is provided as titles beyond that of "stockbroker," yet, of the confusion. Written by UBS' part of a financial plan or financial remarkably, Merrill Lynch sees no con Executive Vice President, Jam es D. Pri ce, UBS ca ndidly states th at when it planning se rvices. fu sion in th at. Mr. Gottlieb argues that acts as a brokerage firm, it does not This confusion must be clarified brokerage firms should be permitted to "simply take customers' orders and use such term s as "financial adviser" because the stakes are significant. execute securities transactions for and "financial consultant," beca use Why? I nvestment advisers under the th em ./I Mr. Price detail s how cus Investment Advisers Act of 1940 have a "those terms are not closely associated tomers "seek out advice," and how th e fiduciary duty towards th eir customers. w ith investment advisory services in firm "endeavorlsl to provide sound Although there has been so me debate the same manner as terms such as advice on this and related aspects of as to th e ro les and responsibilities of 'portfoliO manager', 'in vestment advis their fin ancial needs." Indeed, the firm brokers, who are not investment advis er' or linvestment counse lor.'" "encourages" its II Financi al Advisers " ers, most commentators agree that Citigroup Global Markets (S mith to assist customers "to identify th eir their duties are more limited. Barney) submitted its comment letter overall financial needs and goal s and to create investment strategies that are When the SEC was considering th e to the SEC in September 2004. reasonably designed to pursue those rul e proposal, several brokerage firms Written by its General Counsel for goals, and th en to execute against that filed comment letters with the SEC Smith Barney, Michael J. Sharp, th e let plan." UBS also prOVides "ongoing attempting to justify why th eir brokers ter defends the firm's AssetOne fee advice and assistance" to its cus should not be required to regi ster as based brokerage account. Mr. Sharp tomers, which is an "integral part" of investment advisers. The comment let cites to th e popularity of th e account - its brokerage services. ters are helpful, if for no other reason Smith Barney has over 100,000 such than to highlight how difficult it has accounts - and claims that "the prod- Moreover, UBS offers "ba sic finan- Page 24 The Docket August 2005
cia l planning reports" to its customers regulation is neither appropriate nor adoption date. That time fast is as part of its brokerage services and required." approaching. That's good news for all customers of brokerage fi rms! free of charge. Despite recognizing It is apparent that determining what that "most financial reports contain is , and is not, investment advice for James J. Eccelstan is a securities some elements of investment advice," purposes of transforming a broker into attorney, representing investors as well Mr. Price claims that "planning analy an "investment adviser" is not easy. as brokers and brokerage firms nation sis and recommendations cover a vari Happily, the SEC has pledged to study wide in arbitration, litigation and regu ety of other topics that do not involve the issue further, and to provide more latory affairs. He is an equity partner general or specific investment advice guidance and/or proposed rule with Shaheen, Novoselky, Staat & at all and for which investment adviser changes within 90 days of the rule's Filipowski.
Lake County Medical Society's 2005 Mini-Internship September 19 and 20, 2005
An Invitation to the lake County Bar Association: he lake County Medical Society first implemented its popular Mini-Internship program in 1989 to provide a unique opportunity for others to observe first hand the realities of practicing -medicine in today's ever changing Thealthcare environment. Up to ten Mini-Interns are invited to spend up to two days observing doctors and others while they perform their daily activities in operating rooms, physicians' offices, clinics, nursing homes, laboratory and radiology facilities and whereever they may practice within our community. Of course, all Mini-Interns are carefully instructed with respect to patient privacy issues and operating room behavior and safety. At the conclusion of their two-day adventure with individualized schedules, the Mini-Interns come together with the participating physicians (a ll who can attend) at a lunch or dinner to enable them to share their collective experiences and discuss the issues and challenges surrounding the practice of medicine in our community. We call this the Debriefing Dinner. The physicians are always eager to hear the reactions of Mini-Interns and their individual questions that have been generated over the two-day observation period. It pleases us to learn that many lasting relationships have been formed over the years to the mutual benefit of all concerned. If you are a lake County Sar Assoc iation member, you are cordial ly invited to participate in the 2005 Mini-Internship. To participate or for additional information, call Executive Director, Jane Stein at the lake County Medical Society office in Lake Forest at 647-482-0222. [email protected]. Or, visit our web site at lakecountymedicalsociety.com. The next Mini-Internship program dates are Monday and Tuesday, September 19 and 20, 2005. Program Chairman: James l. Milam, MD.
MICHAEL L. KLESTINSKI, A.C.S.W., & ASSOCIATES, P.MC.
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Reporting of Pro Bono Activities
by Ann Buche Conroy
fter a surprisingly mild discus 2. The encouraging of every which work primarily with th e sion of the pros and cons of the member of the bar to provide at poor; (c) attorneys assist certain A Supreme Court's proposed rule least 20 hours of pro bono service community organizations actually change regarding pro bono reporting, per yea r or give annually at least unable to pay regular fees; (d) the the ISBA Assemby, at its annual meet $250.00 to a legal aid organization. Court permits those who ca nnot provide direct legal to ing in Lake Geneva, Wisconsin, in B. Estab lish a statewide Pro Bono services June of 2005, agreed to support the Coordinating Council, w ith the poor, such as judges and gov Bar Association's opposition to th e regi onal councils in all of the ernment lawyers, to volunteer as majority of the Court's recommenda judicial circuits, to assess needs legal educators in some situations. tion. Th e Court Committee was kind and resources and recommend C. The ISBA's proposal would recon enough to defer its presentation to the strategies for meeting th e lega l figure Supreme Court Rule 756, Court until after ISBA was able to give needs of the poor and improving requiring attorneys to report its members an opportunity to review se rvi ces. annually on hours of pro bono th e Supreme Court Committee's rec C. Require Illinois lawyers to report service rendered or contributions of money made to lega l ommendations and provide input. hours of service proVided and service organizations, under th e expanded Despite some remarkable organiza contributions of money made. tional efforts throughout the state to defi nition of what could be con render lega l services to the poor in The ISBA Committee charged with sidered pro bono services. Such Illinois, there is still a dearth of such review of the proposal, instead sug report would be a part of th e services, which lack is the fo cus of the gests to the Court the follOW ing: ARDC forms provided each yea r to Supreme Court's effort in this regard . A. Not to adopt Model Rule 6.1 all licensed attorneys in the state. ISBA certainly agrees that these beca use there already exists in Neither the Supreme Court demonstrated needs must be met, but th e Preamble of the 1990 Illinois Committee nor the ISBA have suggest is not in total agreement as to how the Rul es of Professional Conduct an ed that the proposed reporting require needs are to be met. un ambiguous statement which ments should include diSCipline of puts on lawyers in Illinois a lawyers who do not prOVide either The Supreme Court proposal has responsibility to proVide services money or services. Reporting is the basically the following parts, consist in the public interest and defines crux of the proposa ls, in th e hope that ing of adoption of a new rule based how such service can be accom reporting will encourage the provision upon the ABA Model Rule 6.1, and a plished. (The Committee of the of services and support to meet th e change to Supreme Court Ru le 756: ISBA was clear in th e belief that a legal needs of the poor. In addition, A. 1. Adoption of the so-called diSCiplinary code is not the place both organizations have expressed Florida model, which requires for such a concept, inasmuch as their opposition to mandatory pro that each member of the state bar, standards for compliance are very bono by members of the bar. as part of that member's profes difficult to determine and enforce.) It remains to be seen what the out sional respon sibility, should (a) B. To expand the definition of pro come of the ISBA effort will be. Our render pro bono legal services to bono with respect to those cases hope is to report on the Supreme the poor and (b) participate, to in which (a) an attorney is Court's final decision as soon as it is the extent possible, in other pro appointed to represent a client ava ilable. bono service activities that directly who may be able to pay only a Ann Buche Conroy is an Assistant relate to th e lega l needs of the reduced fee, under prescribed cir State's Attorney in the Child Support poor. (This reflects the ABA cumstances; (b) a lawyer provides Division of the Lake County State's Model Rule 6.1) legal services for organizations Attorney's Office. •
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Doing Business with the Library
by David E. Bender
'I i
s many of you already know, Furthermore, there will be a $20.00 account. After the initial deposit has there are small fees associated surcharge for al l checks returned NSF. been used up, the library will notify A with several of the se rvices Any checks written to the library you when the account needs to be offered by the library. Payment for must comply with the following: replenished, along with an itemized these services has traditionally been statement of charges. done with either cas h or check. As a • The check must have a name and Copy Debit Cards: The library has a serv ice to our patrons, payment add ress. supply of copy machine debit cards. options have recently been expanded • The date must be current. The The debit cards can be cha rged up to all ow the use of credit cards, as library will not accept post-dated w ith any amount of money, which is we ll. To better facilitate financial trans checks or any checks o lder than then deducted from the card as copies actions with the library, I want to use six months. are made. If all you do is photocopy this month's column to layout the ing, a debit ca rd would be a better rules governing how we handle vari • The check must have a check in vestment than opening an account. ous transactions. number. Cards are ava ilable for $1.00, which Cash: The photocopiers are capa • Numeri ca l and written amounts covers the cost of the card. ble of accepting change, $1.00 bills must be the same. The amount on the card is the and $5.00 bills. While the machines • The check must be signed. user's cho ice, determined by how wi ll accept a $5.00 bill, please use one • The check must contain the much one wishes to put on th e card. only if you are going to be making Federal Reserve coding at the bot Cash is placed on the card by inserting $5.00 worth of copies. If you only tom of the check. the card into the card reader slot on have a $5.00 bill and do not need to the Xerox-brand photocopier on the make a large number of copies, please Credit Cards: The library can north side of the library and th en ask a library staff member to break the accommodate all major credit cards. inserting the desired amount of cash bill for you. Additional ly, once money The card must be signed before it is into the bill slot. Please note that this has been put into the photocopiers, the produced. can ONLY be done on the Xerox-brand machines will not make change until Accounts: It is possible to create an machine; it cannot be done using the at least one copy is made. account w ith the library. Thi s will Minolta-brand photocopier by the The largest denomination the allow you to charge th e cost of faxes counter. library w ill accept is a $20.00 bill. If and computer printing. The library If you have any questions concern you have anything larger th an that, you will also provide you with a code ing monetary transactions with the can take it to the County Treasurer's number that can be used on the pho library, just ask. We will be glad to Office and they will break it for you. tocopy machines. Accounts can be for answer any questions you might have. individuals or for firms. If a firm Check:The library will accept both account is created, an itemized state personal and firm checks. Please ment detailing printing and fax trans make them out to the Lake County Law actions can be provided. Library. Checks will be accepted for David E. Bender, Law Librarian of the cost of services or as a deposit on An account can be started with a the William D. Block Memorial Law future services. The library will not deposit of $20.00 to $50.00, depend Library Nineteenth Judicial Circuit, take checks to cash or give cash back. ing on the number of people on the State of Illinois. Remember Me? The Less Than 2 Hour Closing.
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by Alan Pearlman
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Box 102 tems - all fully integrated. ~~ Grayslake, IL 60030 Attorneys who consc ientio usly track their time, log more hours. Email: [email protected] AbacusLaw Gold, w ith fully integrated Voicemail: (847) 223-1257 Fax: (847) 223-1257 lega l billing software, takes th e drudg ery out of th e time-management task. Page 30 The Docket August 2005 the screens that they preferred on assess practice growth trends and view demographic information. AbacusLaw, and it was a totally flexi attorney productivity. I have found that in the short time I ble solution for the firm. These reports allow the user to have been using the new AbacusLaw As for forms customization, the manage and market your law firm, all Family Law Special Edition, I have family law edition comes with cus in one click, as you pull the valuable become more productive and more tomized forms ready for your use. Here information into a report from your aware of just exactly how my cases are are some of the preconfigured forms ever-growing database. This informa progressing and how well I am doing in included in Abacus Family Law tion is extremely helpful in allowing certain specific areas of my Family Law you to make efficient and profitable Special Edition: practice. I can really say that AbacusLaw practice organization decisions and • Client Intake Sheet has come up with a true winner in the drive targeted marketing strategies that • Divorce Cl ient Documents Request area of practice specific case manage res ult in increased clients, cases and ment and I am very happy and pleased • Referral Letter Non-Representation firm revenue. Likewise, The Abacus Letter with the product. 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I have seen many versions of In addition to the forms, the new You also have the ability to track AbacusLaw throughout my several special edition has a wonderful series the activities of each of your firm's years as a legal technology reviewer, of special reports for you firm to use. attorneys and run a report by the attor and I have found that this company has The Abacus Family Law Special Edition neys' names in divorce cases, th e made constant strides moving ahead compiles business-critical information domestic violence information by and into the forefront of case manage for you. You can access pertinent met attorney or th e custody information by ment systems. This new Famil y Law ri cs to gauge your financial success, attorney - this will give you the infor- Special Edition is right up there with mation you need in th e best that the marketplace has to your firm as to just offer. I am certainly pleased with my who is being more new system and I am very sure that productive and how you will be, too. My hats are off to • Securities Arbitration to active they are in a particular matter. AbacusLaw Family Law Special Recover Investment Losses Edition. I know that this is one prod Another helpful uct that will please many family law • Stockbroker/Adviser report is the client practitioners for years to come! origin report. In Regulation and Discipline Abacus Family Law Facts Special Edition, you You ca n contact AbacusLaw at • TrusteefFiduciary Litigation have a sample Client www.abacuslaw.com or ca ll th em at Origin Report that 800-726-3339 for a free software James J. Eccleston of lets you quickly demo and a look at their pra ctice spe determine the geo cific products, as well as pricing for Shaheen Novoselsky Staat graphic regions that your particular firm. Filipowski & Eccleston, P.c. are supplying most clients to your firm. We1comes Referrals Alan Pearlman, Attorney, Computer This is a rea l help Consultant and Nationally Syndicated (312) 621-4400 when it comes time Columnist - "The Electronic Lawyer" to gauge the efficacy (tm) - Author of the best selling book - ~,fi!).~!l"i.!!1.C.Q!d!l .s~1.SQm of your current ad "The Busy Lawyer's Guide to Microsoft www.SNSF-LAW.com campaigns, as well Word" published by the West Croup. "AV' Rating by Martindale-Hubbell as guide targeted marketing strategies © Copyright 200S-Alan Pearlman - in the future, and "The Electronic Lawyer" ™ All Rights determine client Reserved August 2005 The Docket Page 31
Civil Trial and Appeal Committee Annual Seminar and Golf Outing at Grand Geneva Resort, Lake Geneva, WI
by Scott B. Gibson
n Wednesday, M ay 25, 2005, practical inSights regarding not only The only so mber moment during the approximately 60 lawyers and the practice of law, but al so legal strat seminar was shortl y after Bob BalZ er O judges parti cipated in our 7th egy and subtleties connected with th e gave his presentation regarding the cur Annual Civil Tri al Seminar. We th ank prese ntati on of witnesses and moti on rent state of civil legislation in Illinois the follow ing speakers for their excel practi ce advocacy. Judge Hall began and in the United States Congress. We lent presentati ons and written materials: th e Judges ' presentation w ith an lea rned th at th e Illinois legislature had overview of hi s definitive work rega rd agreed to pass mandatory caps on med • Bob Bai zer - Legislative Update/ ing § 2-615 and 2- 619 Motions. ica l negligence cases. As of th e time of AUack on Civil lustice Copies of Judge Hall's research were this writing, the governor has still not • Terry Brady - Private Mediation/ give n to all attendees, and we th ank signed the legislation. If it does become Arbitration v. Court Ordered him for sharing the wea lth of his law, it is an absolute certainty th at Pretrials kn owledge. immediate appeals will be filed, con- • Brian Lewis - Technology Updates • Larry Rud er - Cook County Prac tice for the Lake County Practitioner • Ri ck Kessler - Direct and Indirect Civil and Criminal Contempt • Mike Noonan - Injunctive Relief from A - Z • M ichael Betar - Home Repair Act and Specialized Civil Practice • Peter Schlax - Workers' Compen sation Upda te and Issues • Judge David Hall - § 2-67512-6 19 Molions to Dismiss • Circuit Court and Assoc iate Judges Mullen, Tonigan, McKoski , Walter and Dunn - Mistakes Even Good Lawyers Make As Committee Chair, I received let ters an d comments after the seminar from many of the regular and new members, who unive rsall y expressed th at th e quality of the speakers and subject matter were fi rst rate. Th e Judges gave especiall y insightful infor mation on an individual bas is about th eir unique perspectives in seeing th e practice of law from th e elevated side of the bench. They offered rea l an d Page 32 The Docket August 2005
truly chaotic bunch, and we look for ward to next year's sem inar. Judge Brady's Dinner at Del Rio - Wednesday, June 22, 2005 It was a great evening attended by approximately 25 committee members at Del Rio to finally fete Judge Brady for his long distinguished service on the bench and to give him our com mittee's bon voyage into private medi ation practice. As always, no camera s or recording devices were allowed, and many toasts and speakers were rudely interrupted at the dinner, including Judge Brady himself. We look forward to ludge Brady's contin ued participation in our comm itt ee as a priva te practitioner for many years to solidated into one statewide appeal, The Secret come. and probably expedited to the Supreme We learned a deep secret which Next Meeting: Thursday, September Court, as was done in 1995, which has been lovingly protected by the 22, 2005; 4:30 PM at McCormick's resulted in the Supreme Court ruling in Lake County Judiciary for over a cen Restaurant, Lake Bluff, IL Best that legislative caps are unconstitu tury and reveal ed for the first time at (Adjournment for th e summer months tional in Illinois. our civil trial seminar. It is th e chart of July and August) showing the ratio of a successful out- Golf We had 40 golfers who enjoyed tremendous weather and as shown in the accompanying pictures, the com mittee gave prizes to the following superlative golfers: • Longest Drive/Driver: Brian Lewis • Raffle Prize/P utter: Brian Lewis • Longest Drive/Wedge: Peter Schlax • Raffle Pri ze/Driver: Paul Phillips • Closest to the Pin/Pu tter: Richard Kopsick • Closest to the Pin/Wedge: Scott Gibson come in a civil case versus the WADRJ For the first time, commercial spon Conference Room Av~ilable I ndex. Now that the sors offered to participate in our se mi Computer-Aided Transcription nar, and we thank ADR Systems and Civil Trial Committee Minuscripts especially Susan Liefbroer and Mary knows the WADRJ Nelson for providing free Cubs ti ckets Index, we will be roar for box seats to the next day's ball ing forward using it to game at Wrigley Field, which were successfully prosecute L & L Reporting Service, Inc. won by seminar participant Bill and defend civi I cases. Anderson. In addition, ADR generous Thank you to all of 26 Years Experience COURT REPORTERS ly provided beer, soft drinks, golf balls, the speakers and 9 North County Street and other prizes on multiple holes on attendees and also, to Lori A. Eder Waukegan, IL 60085 the golf course. We look forward to Amy and Melissa who (847) 623-7580 Linda M. Giuseffi FAX (847) 623·7597 their participation and other sponsors always do a wonderful next year! job in organizing a August 2005 The Docket Page 33
For Your Information: Class Settlement on Cellular Taxes
Submitted By Clayton P Voegtle
ake County Attorneys, and their separate cases has certifi ed classes for file a claim. Refunds are expected to staffs, may be eligible for tax refunds for persons and entities that vary according to the length of time th e Lrefunds on a tax meant for infra had cellul ar telephones or pagers class member had the cell phone or structure (use of the roadways for th e billed to an address in the municipali pager. Generally they are expected to telephone lines) because the Illinois ties of Buffalo Grove, Gurnee, Lake range from $12 up to about $49.00. If Supreme Court held the tax did not Zurich, Libertyville, Vernon Hill s or yo u had both a cell phone and a pager apply to wireless companies that do Waukegan between January 1998 on separate bills, that could double. not own or maintain telephone lines. through February 2002. Simple claim forms can be down The Lake County Ci rcuit Court in 3 You do not need your old bills to loaded at Voegt leLaw.com.
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We are pleased to announce that once again the Lake County Bar Association has purchased Attorney Daily Diaries. The 2006 version will be available in Mid-October 2005. Order Early! Quantities are Limited
$25.00 LeBA MEMBERS $30.00 NON-MEMBERS LeBA 2006 ATTORNEY DAILY DIARIES ORDER FORM
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Please make checks payable and remit to: Lake County Bar Association· 7 N. County Street· Waukegan, IL 60085 • 847-244-3143 Page 36 The Docket August 2005 Recent Lake County Verdicts
Plaintiff: Mary Bimel Defendant: Ranko Zeravica Case Number: 03 L 0874 Trial ludge: Hon. Margaret Mullen (Bench Trial ) Trial Dates: June 13-25, 2005 Plaintiff's Attorney: Richard Kopsick Gibson & Kopsick Waukegan, IL Defendant's Attorney: Stephen G. Loverde Law Office of Dale Sherm an Chicago and Waukegan, IL Last Demand: $75,000.00 Last Offer: $35 ,000.00 Asked of ludge: $75,000.00 Iniuries: Neck and back soft tissue, herniated disc at C5-C6 Specials: Doctor bills: $17,867.80 Date of Occurrence: October 17, 2001 Nature of Case: Defendant went through stop sign at intersection of Lakeview Pkwy. and Fairway Dr. in Vernon Hills and impacted the Plaintiff's ca r. Paramedics took the Plaintiff to Condell Hospital. She had neck and back injuries. She had a lot of physical therapy. Dr. Citow, who also recommended su rgery, diag nosed her with a herniated disc at C5-C6. The Plaintiff had a prior neck injury with degeneration. Dr. Citow's partner at the time, Dr. Jeffrey Karasick, indicated surgery was not necessa ry. She also had numerous epidural injections and MRI tests. Defense contended the Plaintiff suffered soft tissue injuries and has a chronic neck condition not ca used by the accident. Verdict: Verdict for Plaintiff: $65 ,223.40 ($17,867.90 - past medical; $2,355.50 - pa st lost income; $25,000.00 - pain and suffering; and $20,000.00 - loss of normal life) 0.0 Nina Dudziak Court Reporters, Ltd. 0.0
ChJc.go OfBce Lake County Oftlce 120 West Madison Street 33 North County Street Suite 616 Suite 400 Chicago, IL 60602 Waukegan, IL 60085 Phone: (312) 701-1707 Phone: (847) 406-3200 Fax: (312) 701-1708 Fax: (847) 406-3210
• Certified professional court .reporters • Real-time services • Daily copy • Medical and technical reporting Conference Rooms Available in Waukegan August 2005 The Docket Page 37 plaintiff: Miguel Gonza lez, a minor, by and thro ugh his fath er, and nl blf, Narcisco Gonzalez Defendant: Lubis Medina/Lubis Medina v. Narcisco Gonzalez (third party complaint for contribution for negligent supervision) Case Number: 03 L 336 Trial ludge: Hon. Wallace Dunn Trial Dates: June 20-22, 2005 Plaintiff's Attorney: Phillip J. Bartolementi Chicago, IL Defendant's Attorney: Stephen G. Loverd e Law Office of Dale Sherman Chicago and Waukegan, IL Last Demand: $10,000.00 Last Offer: $7,000.00 Asked of lury: $22,761.75 Injuries: Fra ctured tibia Specials: Doctor bills: $2,761 .00 Date of Occurrence: April 2, 2002 Nature of Case: It was th e end of th e school day at Little Fort Elementary School at th e intersection of Blanchard and Lorrai ne in Wa ukega n. The Defendant had just picked up her son and was exiting from her stopped pos ition in a line of ca rs on Lorraine. She felt an impact to her driver's side door. The Plaintiff alleged th e Defendant should have seen the minor Plaintiff or been more atten ti ve while leav ing the school zone area. Contributory neg ligence was not an issue since th e minor was six years old at the lime. Defendant filed a third party complaint against the fath er for negligen t supervision. Th e father was wa iting in his car a few parked cars ahead of the Defendant. Th e minor was casted 3 times for the fractured tibia and made a good recovery yet he and his father testified he still has continuing prob lems. He also missed a few weeks of school. Defense contended th e Defendant was not negligent/minor's fath er was negligent in his supervision of the minor Plaintiff. Verdict: Not Guilty - verdict for Defendant
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RESSLER • Business Planning FINANCIAL SERVICES • Estate Planning • FinHncial Planning 403 Grand Ave. Ste. 100 ..7;1 ·.··· Sn:II(;rKt &lid ad¥i'"")' "',. K:C'I otr"""d 1 j I ' i 1;" Ihrou,h MUN&l ~rvicc Corponrion. Waukegan, IL 60085 , ,," i· flqimrrd Invatmc'nl Advisor. Mmlba" NASO/SIPC Page 38 The Docket August 2005
LAKE COUNTY BAR ASSOCIATION CRIMINAL TRIAL & APPEAL COMMITTEE ANNUAL CONFERENCE OCTOBER 6-9,2005 PARIS HOTEL - LAS VEGAS, NEVADA !
Seminar registration fee includes SEMINAR MATERIALS, BREAKFAST and REFRESHMENTS
LCBA Member: $85.00 Non-Member: $100.00
GROUP DINNER AND GOLF WILL BE DETERMINED BY THE NUMBER OF PEOPLE REGISTERED PLEASE REGISTER EARLY!!! Seminar Reservation Deadline:. September 16, 2005 Please Print or Type
Enclosed, please find my check in the amount of $_____ for the Criminal Law Seminar, October 6-9, 2005.
Name(s): ______
Phone: ______
The Lake County Bar Association 7 N. County Street, Waukegan, IL 60085 (847) 244-3143
The following agency is available to assist you CITI NET TRAVEL 3340 DUNDEE ROAD STE. 2N1 • NORTHBROOK, IL 60062· 847-564-8240 August 2005 The Docket Page 39
Coroner visits Association of Women Attorneys of Lake County
he Association of Women regarding the rise of suicide deaths in visit was informativel interesting and Attorneys of Lake County was Lake County (a trend nationwide) and timely. drug-related deaths particularly among Tpleased to welcome Lake County The Association of Women young people. It was interesting to dis Coroner, Dr. Richard Keller, as its Attorneys of Lake County meets on the cover that although the drug, metham speaker at the Association's July 2005 first Wednesday of each month at phetamine, (c rystal meth) is contribut meeting. Potesta's Restaurant, 434 South Green ing to deaths throughout the nation, Bay Road in Waukegan. For further Although the "coroner speaks at that drug is not our biggest problem information regarding the Association, lunch" might seem to some to be "off here. Rather, heroin seems to playa please call President Marjorie Sher at putting," it was not to the Association bigger role in drug related deaths in 847 -249-2830. and the meeting had terrific atten our county. dance. Dr. Keller, a medical doctor, discussed recent changes in his office The policy of the Coroner person such as taking over drug testing for the ally notifying families of Lake County Jail , thereby saving the the death of loved ones county the cost of "out-sourcing," in an accident contin newly developed education programs ues, with Dr. Keller that will provide information on foren meeting with parents, sic evidence and other topics of inter spouses and family est to high school students and the members. development of a "bloggable" web site The Association that would provide information on the strives to bring a wide workings of hi s office and highlight variety topics and interesting cases and developments. speakers to its members. Dr. Keller presented information Certainly Dr. Keller's Sometimes they manage 10 slip right through your fingers. That's when you need us. Whether it's a missing witness, defendant, • David]. Gordon, CFP@, ClMA, CMFC plaintiff, deadbeat parent - or anyone Senior Vice President -Invutment Officer we'll follow the trail wherever it leads. . Financial Planning . Retirement Planning We'll find who you' re • . Asset Management . Investment Strategies looking for. If we don 't, Deerfield Complex you don't pay. And we 847-572-430 7 can't remember the david. [email protected] last time we didn't get paid. WACHOVIA SEcuRITIES LAKESIDE 800.636.1511 INUESTIGATIONS Wachovia Securities. llC.member NYSE and SIPC . ©1005 Wachovia SecUfities.llC 616714/05 www.lakesideinvestigations.com Lic#l 17·001132 Page 40 The Docket August 2005
Bar Bulletin Board Waukegan - Single to four offices available at 16 N. West Downtown Waukegan - one or two spacious offices in Street located one block from the Lake County Courthouse shared office suite, with reception room, secretarial areas, (dir~ly across from new City Hall). New paint & carpet and conference from at 33 N. County Street across the throughout. Off street parking available. Perfect for satellite street from Lake County Courthouse. Call Loretta at 847- office or local practitioner. Rents as low as $3OO/mo., utilities 244-9100. included. ?hared office equipment arrangements available. Call David for details at (847) 244-0095 or (847) 623-1011 . • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • Directly across the street from the Lake County Courthouse - single to three spacious, well maintained THE LAW OFFICES OF DAVID P. GRANGE offices with shared reception/secretarial area available on ARE PLEASED TO ANNOUNCE upper level of 25 North County Street. Furniture and jani torial services prOVided. Contact Cristina at 847-623-1769. THE RELOCATION OFTHEIR OFFICES TO • • • • • • • • • • • • • • • • • • • • • • 16 N. WEST STREET WAUKEGAN, IL 60085 For Rent _. Lower level office space across street from Lake County Courthouse consisting of 4 offices and 2 secretari 847-244-5400 (PHONE) al stations. Can be divided. Reasonable rent. Call Diane 847-623-9568 (FAX) at 847-244-0770. [email protected] • • • • • • • • • • • • • • • • • • • • • • Professional Office Building - in downtown Waukegan. AVAILABLE TO PRACTICE IN DISSOLUTION Walk to courthouse. Referral work available. Reception area and utilities included. Rent $400.00-$700.00. Call OF MARRIAGE, ESTATES, WILLS & TRUSTS for appointment. 847-244-4636. • • • • • • • • • • • • • • • • • • • • • •
PRIME WAUKEGAN LOCATION FOR RENT ONE NORTH COUNTY STREET UPPER LEVEL OFFICE LOCATED DIRECTLY ACROSS THE STREET FROM THE COUNTY BUILDING CAN BE DIVIDED. RENT REASONABLE WITH JANITORIAL SERVICES PROVIDED. CALL JIM @ 847-662-4321 Is Mjd Amerjca IHle Hayjna A Total Makeoyer1
r Well, Yes. And 110. Mid America Title is now North America Title Company, a part of the Lennar Corporation family of companies. This provides our customers with many new advantages. We have more local offices for added convenience. We are now part of a nationwide network, something especially helpful for out-of-state purchases. And we have the increased financial stabmty of a larger organization. Of course, while this changes what we are, it doesn't change who we are. Our staff remains the same as does our "family feel" and outstanding customer service. All of which gives you the best of both worlds. And that's the kind of "makeover" that makes everybody happy. ..NORTH "AMERICAN "TITLE •• COMPANY LIke Clockwork""
ArlIngton HI5. 2015 S. Arlington Hts. Rd. 847·640-6600 Chicago Loop 70 W Madison SI. 312-853-1191 Chicago North 4708 N. Milwaukee Ave. 773-794-1888 Crystal Lake 149 N. Virginia SI. 815-455-2500 Hoffman Estat .. 2300 N. Barrington Rd. 847-490-4243 UbertyvlUe 1641 N. Milwaukee Ave. 847-367-4400 Palos Hln. 9800 S. Roberts Rd . 708-598-6500 Waukegan 222 N. County SI. 847-249-1200 Wheaton 373 S. County Farm Rd. 630-690-9500 YorkvlUe 803 N. Bridge SI. 630-553-9104 www.nat.com LCBA CALENDAR OF EVENTS August 200S
1 Family Law Planning Committee
18 Executive Board Meeting
25 Intellectual Law Brown Bag Seminar
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LAKE COUNTY BAR ASSOCIATION NON-PROFIT 7 N. County Street u.s. POSTAG E Waukegan, IL 60085 PAID Mailed From Zi p Code 60031 Permit No. 356