THE June 2010

DOCKETVol.17, No.5 The Official Publication of the Lake County Bar Association

11th Annual Civil Trial Appeals Commitee Seminar & Golf Outing

May 27, 2010 • Biltmore Country Club • Over 100 attendees!

Inside this issue... In the Director’s Chair: 2 by Christopher Boadt, Executive Director The President’s Page: Service, That’s Our Tamale! 3 by Elizabeth Rochford The Chief Judge’s Page 5 by Chief Judge Victoria A. Rossetti A publication of the Evictions: The Practical Aspects of the Forcible Entry & Detainer Act 7 by Kenneth Suskin Depositions: Do’s & Don’ts to Make Them Count 11 by Scott B. Gibson Emergency Motions & Petitions for Rule to Show Cause for Contempt 15 by Gary Schlesinger Recent Amendment to Supreme Court Rule 304(b) and It’s Impact on 300 Grand Avenue, Suite A 20 Family Law Cases Waukegan, Illinois 60085 by Circuit Judge Edward R. Jordan & Justice Mary Jane Theis Phone: (847) 244-3143 Fax: (847) 244-8259 Family Law Case Update www.lakebar.org 25 by Mary J. Clark, Valerie I. Steiner & Megan V.McAlister [email protected] Annual Real Estate Committee Seminar 30 by Carrie A. Lincoln & Rebecca McNeill 2009-2010 Officers & Directors Meeting Minutes: April 22, 2010 Elizabeth M. Rochford, President 31 by Marjorie Sher, Secretary Perry S. Smith, Jr., First Vice-President Marjorie Sher, Second Vice-President The Grapevine Kevin M. Kane, Treasurer 34 Keith Grant, Secretary Scott B. Gibson, Immediate Past President 35 LCBA Bulletin Board Hon. Fred L. Foreman Steven P.McCollum LCBF: Senator Durbin, I Have A Question Joann M. Fratianni 36 by Kathleen M. Ryan Michael J. Ori Gary Schlesinger Mark A. Van Donselaar

Editorial Board Michael S. Strauss, Co-editor Rebecca J. Whitcombe, Co-editor Ann Buche Conroy Hon. Mitchell Hoffman Daniel L. Jasica Advertisers 6 Adopt-an-Athlete 13 Legal Precess Service, Inc. 30 Appraisal Solutions Group 28 Little Fort Media Hon. Raymond J. McKoski Back Attorney’s Title Guaranty Fund, Inc. Front McDonald Hopkins LLC Stephen J. Rice Neil H. Good 22 COE Finanical Group 22 Neal A. Simon David L. Gates & Associates Professional National Title Network, Inc. 24 14 James K. Simonian 18 Deposition Reporters 33 Steven Jesser 13 IBEX IT 4 Sun-Times Media Hon. Daniel B. Shanes 19 ISBA Mutual Insurance 10 The Gordon Finanical Group 5 Joseph Modica & Associates, Ltd. 18 The Gordon Finanical Group Staff 24 L & L Reporting Services, Inc. 4 Unisource Numismatics Christopher T. Boadt, Executive Director 28 Lakeside Investigations 33 Vahl Reporting Service 2 The Docket June 2010

In the Director’s Chair by Christopher T. Boadt

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Bar Bulletin Board Upto5Lines ...... $25 6to10Lines ...... $35 he Lake County Bar congratulates the Association of 11to15Lines ...... $40 Women Attorneys of Lake County on the recent instal- 16to20Lines ...... $45 Tlation of their new officers. The event was held on May 5, 2010 at the Genesee Theater in Waukegan and attracted 100 To place an ad or for information on adver- members of the Lake County Legal Community. We are proud tising rates, call (847) 244-3143. Submis- that many members of AWALC are members of the LCBA and sion deadline: first day of month preceding also accept leadership roles in our association. the month of publication. All submissions must be made in electronic format (high res- olution PDF or JPG format at a resolution of 300 pixels per inch or more.) See www.lake- bar.org/html/docketRates.asp.

The Docket is the official publication of the Lake County Bar Association, 300 Grand Avenue, Suite A, Waukegan, Illinois 60085 (847) 244-3143, and is published monthly. Subscriptions for non-members are $45.00 per year.

Reproduction in whole or part without per- mission is prohibited. The opinions and po- sitions stated in signed material are those of the authors and not necessarily those of the Association or its members. TOP : AWALC Immediate- Past President Irene Curran All submitted manuscripts are considered congratulates 2010-2011 by the Editorial Board. All letters to the edi- President Shyama Parikh. tor and articles are subject to editing. Pub- lications of advertisements is not to be BOTTOM: The featured considered as an endorsement of any prod- speaker for the evening was uct or service advertised unless otherwise Illinois Attorney General stated. Lisa Madigan. June 2010 The Docket 3

The President’s Page by Elizabeth Rochford Service, That’s Our Tamale!

recently accepted an invitation to engage them. I read to them from my fa- but in different ways, and on different CLC’s Fifth Annual Law Day Celebra- vorite books and short stories, showed days. I breathed a sigh of relief, and sat Ition. The great event honored the them what I considered to be inspiring back to enjoy! achievements of the Paralegal Studies photos and film. But night after night, Program, its faculty, alumni, students, they filled the room in silence, politely Launched by the humble tamale, we spent and, most especially the 2010 graduates. stared at me for 90 minutes, and quietly the rest of the class, and the balance of As always, it was a “can’t miss” evening departed. I had completely underesti- the semester, reveling in, tasting, and hosted by highly motivated and inspired mated how hard it might be to find a com- writing about the foods, the people, the individuals, gathered to cheer the chal- mon thread among us, and I was joys and traditions of our diverse cultures, lenges and successes of its members. But disappointed in myself for failing them. which were at the very center of the lives, for me, this year’s celebration was distin- of all of us that semester, in classroom guished from the others in one special and Then one night, quite miraculously, and 203, Composition 101, at Wright Junior unique way; they served tamales! I love without prompt, Lena from Belize, shared College. tamales! I love them not only for the obvi- a story about how her grandmother had ous reason that they are delicious. But for taught her the four-day process of making So, it was the tamale that got me thinking me, it goes deeper. Tamales saved my tamales. Transforming maize into masa, about what unites the diverse and won- teaching career, taught me about life and slow cooking the meat, and wrapping derful membership of the LCBA. My intel- the world, and demonstrated the value in them in plantain leaves, culminating in lect tells me that we are attracted to the finding common ground in any group. Let the much anticipated feast on Christmas law because it creates a structured place me explain. Eve. for battle; it helps us to find order and res- olution, and as a practical matter, pro- Something about her simple, beautiful, About 10 years ago, I was working as an vides us a way to make a living. But there and heartfelt story inspired Manuel to attorney by day and decided to revisit my is something more basic and innate that share his Mexican tradition of the tamale. first professional joy, teaching English, by draws a group as magnificently different night. I was fortunate to secure a position In his home, tamales were enjoyed almost as ours, together. at the City Colleges in Chicago. I felt un- daily, not reserved for special occasions; bridled excitement at reviewing my class they were wrapped in cornhusks, and best Clearly we are varied in our backgrounds, roster of exotic names, and when I met my when served with spicy meat and cheeses. our personal lives, our political alliances, class they were as wonderfully diverse, in The enthusiasm continued, as we learned and our areas of practice. Our group be- age and ethnicity, as I had hoped they from Ping and Lourdes that tamales are came even more diverse in 2007 when not, as I expected, unique to Mexico, Cen- might be. The class of 35 students boasted under the leadership of then President tral, and South America, but rather have representatives from 14 countries. In total Rick Lesser; we expanded our member- they spoke 9 languages, not including distinctive versions native to China and ship to include associate, non-attorney English. I dared to imagine my students the Philippines. members. That bold move was not greeted filling our room with riotous laughter and with unanimous enthusiasm, and al- debate as they shared the remarkable sto- All the excitement led Oscar Leibowitz to though it ultimately succeeded, a dissent- ries of their surely fascinating lives. pipe in, “I don’t know anything about tamales, and I don’t celebrate Christmas, ing sentiment and suspicion remained. Reality however, fell far short of my ex- but I am going to bring in some Passover Why would non-attorneys be granted pectation. The group was punctual, ex- Challah bread for everyone to taste.” membership to a group organized for the tremely respectful of me, and each other, Oscar’s comment launched an emotional primary purpose of promoting attorneys? and painfully silent. Class after class, they discussion among the Poles, Germans and And if we are not all attorneys, then what stared at me while I tried maniacally to South Africans, who also enjoy Challah, is the thread that weaves us together? 4 The Docket June 2010

A collaboration among a diverse group of dissenters have come to recognize, and ap- applies to those non-lawyers who work attorneys and non-attorneys, equally preciate, the valuable contribution by our side by side with us, and share our com- committed to advancing social justice membership, in its entirety. mitment to service. I am witness to the soon revealed itself as our common pur- great successes of our past efforts, and I pose. When the bar association put out My friend Joe DuCanto of Schiller, am energized at the thought of what we the call for help on several recent projects, DuCanto and Fleck says this, “The level of can accomplish together in the future.You including the Guardianship Help Desk, honor, integrity, and purity of spirit is see, our common commitment to service, Foreclosure Help Desk, and Keep Your found in greater and more intensive quan- that is our tamale! Home event, the response from the whole tity in lawyers than in any other profes- membership, from all areas of practice, at- sion I know.” And to that I add only an I am privileged and humbled to serve as torney and associate members alike, was exclamation point, because the essence of your president for the 2010-2011 term, immediate and enthusiastic. The success Joe’s message captures exactly that which my most sincere thanks to the member- of each of these programs correlates di- has been my observation and experience. ship of the LCBA for this extraordinary op- rectly to our united participation. Even the But I suggest his wise comment further portunity to serve.

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Call: 224-636-8038 or E-mail: [email protected] June 2010 The Docket 5

The Chief Judge’s Page by Chief Judge Victoria A. Rossetti remember the first time I saw a com- tions visible in the courtrooms; however, Fellow and Certified Court Executive of puter, I was in college and the class there is so much more being done by JIS the Institute for Court Management. Web- Iwent to the basement of the business behind the scenes. ber earned this status after successfully school building to a computer lab. Inside completing four phases of rigorous re- this room were 15 of the largest, scariest JIS provides a 24/7 HELP DESK for tech- machines I had ever seen and I had no nical support on our workstations, tele- quirements of the Court Executive Devel- idea then that they would change our phones, telecommunication devices for opment Program. It is the only program world. the hearing impaired, printers, facsimile of its kind in the United States, established machines, copiers and LAN/WAN main- more than 30 years ago to improve the Today, court systems are more reliant frame network, security and application than ever before on technology.The inter- support. Some of the major systems they management of State Court Administra- net, legal research, email and mobile tech- maintain for us include our jury system, tion. We congratulate her on this presti- nology have revolutionized the way our adult and juvenile probation case man- gious accomplishment. court system operates. Our circuit is for- agement systems, Westlaw, Microsoft of- tunate to have a Judicial Information fice, four networks consisting of twelve JIS will be offering training sessions for the Services Division, (JIS) which works to im- servers, our internet and wireless systems. NOMAD Electronic Podium System and prove communications and maximize ef- JIS also does a great deal of work re- Fourth Floor Courtroom AV Equipment ficiency in our workplace. searching, evaluating, implementing, on the following days and times: maintaining and training all judges and JIS is one of our organization’s foundation employees. In total JIS is responsible for • Friday June 4, 2010 and Friday blocks that support the administration of over 375 workstations, six LCD screens, June 11, 2010 at 12:30 p.m in justice. It was started many years ago in three 3M wall displays, five permanently conjunction with our first administrative installed multi-media presentation podi- Courtroom 403 - States Attorneys strategic plan with the goal of providing ums, six mobile multi media presentation and Public Defenders and Attorneys for better access to our services and programs podiums and audio/visual technology dis- municipalities that we deliver to the citizens of Lake tributed in 12 courtrooms and four train- County.We are also the only circuit court ing rooms. All this work makes our • Thursday June 17, 2010 at 12:30 outside of Cook County to have assembled courtrooms run effectively for motions p.m. in Courtroom 403 - Lake such a team that provides direct support and trials like an episode of CSI. County Bar Association and those un- to the judiciary. We are proud of our talented team and able to make other sessions The JIS Division is headed by Winnie Web- their work which supports the overall mis- ber and includes Brian Burns, Roadjee sion of the 19th Judicial Circuit by pro- The sessions will consist of a 15-20 Calara, Janet Cummings, Melton Grant, viding the highest technology based minute presentation and demonstration Bob Kocanda, Joe Svoboda and Cory Vogt. systems in the most cost-effective manner, by JIS with handouts. They provide technological support to our improving public 36 judges and over 270 court employees access, enhancing housed in the eight court facilities located the timeliness and throughout Lake County. responsiveness of our basic court Through their efforts technology has functions and ex- made its way into every corner of the ju- pediting commu- dicial system. In our courtrooms judges nication and have computers on the bench with access information shar- to legal research and jury instructions; ing. there are assistive listening systems in each courtroom, access to language line As a footnote, as of interpreting services for over 130 lan- the writing of this guages, presentation systems for trails and article, Winnie video conferencing. These are the func- Webber became a X The Docket June 2010 June 2010 The Docket 7 Evictions: The Practical Aspects of the Forcible Entry & Detainer Act

eing a landlord is a mixed blessing. suit on the sixth day. 735 ILCS 5/9-209. ing an eviction suit. The five day notice ap- Owning property is the American plies only to rent and not other lease vio- Bdream, but with those blessings, In some situations you don’t want the ten- lations. For example, if you want to there can be major headaches. When you ant to leave. For example, in a market remove the tenant because of noise or re- own rental property,you have to deal with where it is difficult to get tenants for a peatedly late rent payments, you must the tenants. property,you may find it preferable to keep give the tenant a ten day notice, also As a former a non paying tenant in the unit because called a Notice to Quit. In that case, you p r o p e r t y the lessee is at least paying to keep the are terminating the lease in 10 days manager in place warm in the winter. In a commercial whether or not the rent is paid. Section my younger building, a vacancy may make the build- 5/9-210 provides the language of the No- ing less attractive for your paying tenants. days, I’ve al- tice to Quit. In that notice, you must dis- But that’s a policy decision for the land- ways found it close the nature of the default. lord to make, and is not the subject of this prudent to essay. screen the Incidentally, if there is criminal activity (e.g. crack house), you don’t have to give prospective If you represent the landlord and you tenants, using any notice before filing suit. 735 ILCS 5/9- want to remove the tenant, the statutory 118, 120. By credit checks, authority is the Illinois Forcible Entry and Kenneth calling former Detainer Act. 735 ILCS 5/9-101 et seq. Sometimes, the tenant will tender a par- Suskin landlords, etc. The purpose of the law is to prevent land- tial payment of rent during the five day Even with lords from taking the law into their own period. The landlord can collect that with- that, unforeseen circumstances always hands and breaching the peace. The law out invalidating the suit. 735 ILCS 5/9- arise. I suppose if they didn’t, we lawyers has provisions to protect tenants from un- 209. If the tenant claims in court that the wouldn’t have jobs. reasonable evictions. In recent years the landlord agreed to accept partial rent, the legislature has made amendments to the statute provides that any such agreement In the current economic climate, many Act relating to condominiums and com- by the landlord must be in writing. Section folks are finding it difficult to sell their mon interest associations. Even if you’re 5/9-209 gives the language of the notice houses. Often, they have elected to rent the owner, you must pay the monthly as- which must be prominently stated: their properties until the market improves. sessments or the association can remove Many of the potential tenants are former you from possession, bring in a tenant and Only FULL PAYMENT of the rent de- homeowners themselves who have lost use the proceeds to satisfy the arrearages. manded in this notice will waive the their homes through foreclosure, divorce If you have a tenant in the unit, the asso- landlord’s right to terminate the lease and other financial setbacks. ciation can collect the rent directly from under this notice, unless the landlord your tenant. agrees in writing to continue the lease In a common situation, even a good ten- in exchange for receiving partial pay- ant may experience cash flow problems Before Filing Suit – ment. because of a job loss or other financial set- Notice Requirement back. Divorces and bankruptcies are all Getting back to the real life situation In many commercial leases, the terms of too common. Whatever the cause, your where your tenant is behind in the rent, the lease may have different notice provi- tenant is unable to pay the rent.You as the you must serve the tenant with the five sions and give the defaulting tenant time landlord have your own mortgage and day notice. You don’t need the sheriff or a to cure. When evicting a commercial ten- taxes to pay. While you may be sympa- licensed process server to do so. You can ant, I would recommend reading the lease thetic, you can’t afford to carry this ten- do it yourself, but you must deliver it to the closely to comply with the notice require- ant very long. tenant or a resident aged 13 or older. ments of that lease. When you hand it to the tenant, make As a practical matter, at the first sign of sure you get your hand out of the Filing the Suit trouble, you need to serve the tenant with way–I’ve had tenants slam the door in my After the five days are up, and the tenant a five day notice to protect your rights. If face. is still there and is still delinquent, you you’re inexperienced in this area of law, may file the Forcible Entry lawsuit. The keep in mind that you can’t file an eviction Essentially,the five day notice informs the Clerk of Circuit Court will give you the suit in court until you’ve given the tenant tenant of the default for unpaid rent in the form on which you can fill in the blanks. a five day notice for unpaid rent. If the ten- stated amount, and unless he or she pays Many landlords learn to file evictions ant doesn’t pay within 5 days, you can file that amount within 5 days, you will be fil- without using lawyers, and the forms are 8 The Docket June 2010

easy to fill out.You must fill in the amount filed, the defendant will probably ask for shutting off the utilities to the unit. Don’t of delinquent rent including that which more time, and the judge will normally do that because there are criminal penal- accrues through the trial and possession grant an additional 14 days. In my expe- ties for doing so—not to mention the date. The plaintiff-landlord does not have rience, the tenant will often show up on judge allowing the tenants to stay on for to be the owner of record (e.g. manage- the return date, and the judge will set the several months (without paying, of ment company), but must be entitled to trial for one week later. The tenant will be course). possession and that the Defendant is un- required to file an appearance. When the lawfully withholding possession. 735 tenant finds out it costs $145 for the ap- There is a classic movie illustrating the pit- ILCS 5/9-106. The defendant is the delin- pearance, he or she often decides not to falls in dealing with this frustrating situa- quent tenant(s). You should add “un- appear. However, the tenant has bought tion. The 1990 film, Pacific Heights, known parties” as a defendant in case another week to stay in the unit. starring Melanie Griffith, Matthew Mo- your tenants have friends or boarders liv- dine and Michael Keaton (whose real ing with them. You must fill in a return Some tenants are professional deadbeats name, incidentally, is Michael Douglas) who have figured out some of these little date on the summons, which can be as lit- has a tagline, “It seemed like the perfect tricks to obtain more time. In any case, tle as 7 days hence. But, of course, you house. He seemed like the perfect tenant. you will obtain a court order granting you have to serve the guy in enough time or Until they asked him to leave.” In the possession on a certain date. That doesn’t you’ll be doing an alias summons. movie, Keaton’s character is the Freddy mean you’ll actually get possession on Krueger of tenants, who schemes to use You must serve the defendant as you that date. If you’re not sure the tenant will the California tenant laws against the would in any other lawsuit. Many tenants actually vacate, you need to obtain a cer- landlords in an effort to buy the property know the game and will attempt to avoid tified copy of the possession order, deliver service. Hollywood gives us an example in it to the sheriff, and make an appointment on the cheap. While I won’t go into detail the comedy film Serving Sara featuring to evict. You will have to pay the Sheriff a about the plot, film critic Roger Ebert process servers Matthew Perry and for- fee, depending where the unit is located called it “a horror film for yuppies.” As mer Soprano Vincent Pastore, attempting (e.g. cheaper in Waukegan–higher far one reviewer pointed out, if Fred and Ethel to serve the elusive Elizabeth Hurley with away in Lake Zurich), to deliver notice to Mertz had ever seen this movie, they divorce papers. Although the Academy the tenant. The appointment with the might have thought twice about giving overlooked this movie when giving out Sheriff is based on the Sheriff’s availability Lucy and Ricky an apartment. awards, it’s worth seeing, just because of and has no relationship to the date in the If you represent the tenant defending Ms. Hurley. court order. The Sheriff is usually 2-3 weeks behind–even worse in Cook County. against the eviction, your strategy is usu- If you made repeated attempts to serve On the appointed date, the landlord will be ally to buy some time. Realistically, you but can’t find the tenant or the tenant is required to go to the property with 3 can probably milk the situation for about avoiding service, you can serve by posting movers to clear out the unit. The Sheriff’s 30 days if you’re persistent. You should a notice on the property.The judge won’t deputies will not do the lifting–they will focus on the Five Day Notice, whether it allow service by posting unless you’ve stand by to prevent any altercations. They was properly given.You should determine made repeated attempts to serve the ten- charge by the hour. if any payments were misapplied or, per- ant personally. If the property is vacant, haps given to the manager but not turned however, you can serve by posting. 735 If the tenant has moved out prior to the over to the landlord. If the client is paying ILCS 5/9-107, 107.5. The problem with scheduled possession date, you must no- you well, you can request a jury trial if the constructive service is that the court will tify the Sheriff or else the deputies will go lease doesn’t waive trial by jury. See Sec- grant you possession but not delinquent the property and then send you a bill. If tion 5/9-108. You want to make sure the you have a court order granting posses- rent. delinquent rent and late charges are com- sion, you must enforce it within 90 days puted correctly. If the lease does not pro- It bears mentioning that, in a Forcible or else go through the eviction process vide for late charges or attorney’s fees, the Entry action, the court has authority to again. A 2009 statute extends that to 120 landlord cannot collect them. You don’t grant possession and rent, but not money days, but you must request it and serve a for property damage. If the tenant dam- notice of motion using the statutory lan- have to come up with Perry Mason stuff ages the property, you would need to file guage in Section 5/9-117. If your tenant like, “if the glove doesn’t fit, you must ac- another suit. You can collect reasonable is in the military on active duty, the court quit.” Just present the facts in a straight- attorney’s fees, but the lease must provide may grant a 90 day stay of the eviction. forward way.Our judges understand–they for that. When you appear before the The tenant must bring in the military or- recognize that the tenant cannot stay in- judge, make sure you can show the ap- ders denoting the service person‘s status. definitely without paying rent, but they propriate paragraph of the lease. will hold the landlord to the letter of the Extrajudicial Measures– law and the lease. When the court grants you possession, Not Recommended the judge will normally stay the posses- Although the temptation is there, please Ken Suskin has been a practicing attorney in sion date for 7 or 14 days. If the tenant do not take the law into your own hands. Libertyville for many years. Ken started his shows up in court on the return date, Uninformed landlords sometimes take self career working for the IRS, and now special- whether or not an appearance has been help measures like changing the locks or izes in real estate. June 2010 The Docket X

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Return registration form to: Lake County Bar Association 300 Grand Ave STE A Waukegan, IL 60085 TEL 847-244-3143 FAX 847-244-8259 X The Docket June 2010 June 2010 The Docket 11 Depositions Do’s & Don’ts to Make Them Count o Take a Deposition to Ad- cially in the State of Wisconsin, that out- burden on the court system, because vance Your Case. Don’t Take side Illinois, other state judges’ procedures more cases would be tried, the anecdotal Da Deposition Just to Take a very closely follow the Federal procedure experience of my Oregon friends in the Deposition and a court’s discovery order with its time trial bar is that they do try a few more What is the correct philosophy of decid- and scope limitations really mean some- cases, but many more cases get resolved ing when to take a deposition? thing. in a much shorter period of time, and the cases settle at about the same values as in One of the key philosophical bases for the Giving due respect to our Illinois state other jurisdictions. approval of Supreme Court Rule 213 was judges who can only work within the sys- to give the op- tem as it exists, the simple fact is that be- So between these two extremes is obvi- posing party cause the only limitation of depositions is ously a common ground. Because Illinois the benefit of the time (3 hours) (which can be ex- lawyers have the luxury of a discovery “full disclo- panded by agreement of the parties or plus an evidence deposition and because sure” so as to within the discretion of the judge), that of the fear of a well-financed party possi- reduce the judges are loathe to use their Rule 201 dis- bly suffering an adverse trial result, we need for time- cretion to limit any request of a party to can’t whine about it but just have to ac- c o n s u m i n g take certain depositions, even if objections cept that use of depositions at a ridiculous and expensive are placed at a duly noticed contested mo- rate will continue unless there is a major deposition dis- tion. The concept of fairness, allowing rule change by the Supreme Court. covery. The “each dog to have his day” in court and By actual discus- the fear of being reversed based upon Impeachment,Impeachment, sion of the abuse of discretion, has effectively re- Impeachment Scott B. S u p r e m e sulted in few motions objecting to the So, what is the philosophy of when it is Gibson Court Rules noticing of a discovery deposition in most reasonable to take a discovery deposition? C o m m i t t e e trial courts. In my personal experience in Only take the discovery deposition when and many of the comments of practition- many different jurisdictions in Illinois you have a clear need for creating im- ers before Rule 213 was approved in- state courts, there is realistically no hope peachment that you will need at trial. cluded the unassailable fact that there is a in presenting a motion decrying the abuse There is no other reason other than im- crisis in Illinois in our law practice – way of an opponent in noticing up deposition peachment to take a deposition and op- too many depositions! What we Illinois after deposition. The trial judge invariably posing witness’s discovery deposition. practitioners take for granted is the unfet- overrules the objection and states that Your first step must include a careful tered right to have freewheeling and far after the depositions are completed, a analysis of the 213 disclosures. We are all ranging discovery depositions without party always has the opportunity to well aware that the bright line rules of a any penalty or risk because it will never renew a motion and present the deposi- few years ago where Rule 213 was strictly see the inside of a courtroom, an absurd- tion transcripts for review by the judge to enforced have been substantially relaxed. ity that only exists in Illinois. see if there was an abuse of the discovery It is now basically within the discretion of rules. The judge would only then consider the trial judge to determine whether a In all Federal Courts (Federal Rules 26, the implementation of costs to be paid by 213 disclosure adequately informs the op- 27, 28) and every state except Illinois, the opposing party, as I am sure is consis- ponent of the substance and basis of the there is only one type of deposition which tent with your experience, the chance of fact and opinion testimony of a particular includes, as a necessity, being both a dis- costs being imposed for attending a depo- witness. The “logical corollary” or exten- covery and an evidence deposition. Espe- sition that had been allowed by the court, sion of that witness’ testimony will be al- cially in Federal Court, the judges set a is next to nothing. lowed by the trial and appellate courts. Federal Rule 26 discovery schedule that While it is still a very uncomfortable posi- specifically identifies and limits the num- Believe it or not, there are states (Oregon is tion to be in when your opponent either ber and length of time of depositions in an example) which do not allow deposi- objects at trial or presents a motion to bar each case. Federal judges must be strongly tions of any non-retained expert wit- your witness due to inadequate disclo- convinced of the actual need to expand nesses, do not require disclosure of sures, it is conversely true that trial judges the scope of discovery after the entry of statements, (except experts), and only are loathe to bar a party from being al- the initial Rule 26 Order and basically allow the deposition of a retained expert lowed to present a disclosed witness’ testi- only allow it when actual prejudice can be before a case proceeds to trial. While some mony, especially since it is the catch-22 shown. It is my personal experience, espe- may argue that would be a tremendous that many judges say “Well, Counsel you 12 The Docket June 2010 had the opportunity to take that person’s One tried and true technique is that when opinions or fact testimony; that is com- deposition and you chose not to do so.” you receive favorable information in a pletely worthless and only guarantees that Obviously, that defeats the spirit of the long-winded answer, especially from an the trial judge will allow all of that testi- Rule because it is not the opposing party expert, it is effective to follow up with the mony to come in at trial. At this point, if it that has the burden of disclosure, but that next question prefaced with “Just so we exists, you want to explore the art of is the real world. are clear…” and you then parcel out the “chipping away” of the basis for the op- short impeachment that you need to have posing witness’ testimony. If, after reviewing the 213 disclosures, you that witness answer by either “yes or no.” believe that there is nothing that witness If the witness refuses to answer or claims Chip, Chip, Chipping Away... will be able to testify to that will hurt your that he cannot answer, have the long- If it is a fact witness to a scene event such case or, conversely, that you will have no winded previous answer read back and a car wreck or premises injury, you want substantial likelihood of gaining any valu- highlight that, in fact, he or she did say the to confirm eyesight, position, attentive- able impeachment, then simply don’t de- important information and you are just ness, education, distractions, etc. If it is an pose the witness. Why would you want to making it clear as to that actual fact or opposing forensic accountant who ana- depose a witness and give your opponent opinion testimony. lyzed your client’s business for the pur- the free (probably at your expense) full dis- poses of a divorce settlement, you don’t closure and possible enhancement of their Control, Control, Control want him to waste time by having him re- fact and opinion testimony while not pro- Last year during my presentation about cite his overpowering CV.You want to ask viding any benefit to your side of the case? experts, I began and ended with the theme very short, specific questions regarding his The answer is, you shouldn’t, but it is of “control, control, control” – that theme past experience in this particular type of done every day and it seems to be done in is identical when discussing the deposi- matter, bias regarding one side of the case every one of my cases. tion-taking of any type of witness. It is es- or another, general bias as an expert, sential that you convey from the amount of money retained, and most im- The alternative is if you believe that the beginning that you are in the room reluc- portantly, mistakes in the factual basis for disclosure is inadequate, then initially tantly, that you have a purpose for being his opinions such as overlooked records or have a Rule 201(k) conference and re- there even if it is a simple lay witness or a records or information not provided by quest your opponent to supplement his child witness. Everyone who has to an- your opponent for him to review. opinions with further disclosure. swer deposition questions is also assessing “you, the questioner.” Supreme Court Rule 213(g) specifically al- You Need to Take the Opponent’s lows you not to have to disclose your Witness Deposition, the Big Picture You must assert your authority not in a cross-examination or ultimate impeach- Everyone in this room knows the simple belligerent or loud way, but rather by ment in discovery before trial. You must rule of thumb of impeachment, that you showing your professionalism, extreme make a strategy decision to determine need to carefully craft your impeachment preparedness, and obvious knowledge of whether you want to tip off your oppo- question to be short, specific, unassailable, the subject matter.You must clearly show nent at a discovery deposition that his wit- and require either a yes or no or very short what you intend to ask about with this ness is going to be impeached due to a answer. Obviously,that is the same rule at particular witness, then shut up and go record, deposition transcript, piece of evi- trial during cross-examination but this home. Your knowledge and creativity dence, photograph, etc. that was over- simple rule is constantly either forgotten, must be flexible to prepare and react to looked or not presented to him. The judge overlooked, or through laziness or inat- every type of deposition situation which or jury will probably give great weight in tentiveness, the questioner does not insist may be planned or unplanned; but, the reducing the viability of that witness’ tes- on gaining an answer to a truly clear im- unshakable rule is that if the witness is ad- timony if opposing counsel intentionally peachment question. verse or hostile, you need to begin with all failed to give the witness certain informa- of the questions to which you know the tion that “stain will be dark and spread The questioner must never forget that the witness must be in agreement with your large.” trial judge will ultimately determine side of the case. whether a discovery question and answer Most Overlooked Essentials of Every is truly impeachment in relation to the Every case and every deponent has more Deposition Questioner – Exhibits trial testimony. If there is any doubt or if uncontested issues and subjects of agree- and You Must Listen! the question is too lengthy or the answer ment than disagreement; therefore, pre- includes partially impeachment informa- pare to have the witness be forced to agree Exhibit order tion and non-impeachment information, with you for most of the deposition. It goes Over years and experience, an attorney’s then your deposition transcript is worth- without saying that you are not going to depositions and deposition outlines be- less. How many times have you sat in a have an opposing expert or a hostile wit- come shorter. But, regardless of where deposition and silently sighed with relief ness agree with your ultimate issues in the you are on the experience curve, the most when your witness includes damaging in- case, or they would not be there in the first important part of preparation is the selec- formation in a long-winded answer but place. However, once you complete your tion, order, and pre-marking of deposition your opponent does not follow up to tie it questions regarding all of the agreeable exhibits. As long as I have done this, hav- down with a short, well-crafted impeach- answers, then do not simply have the op- ing participated in well over 5000 deposi- ment question and answer? posing expert read or recite his damaging tions, I am constantly amazed at how few June 2010 The Docket 13 lawyers prepare their exhibits and effec- have the physical presentation of mark- • Prepare to take the deposition tively use them. ings and impeachment that you can then use as blow-ups and trial exhibits and put • Select or create your exhibits When you start a deposition and have side-by-side with your witness’ to show your deposition exhibits marked and where the opposing party is mistaken. • Place them in a well thought out and ef- begin handing them to the witness in a Most of the time, I personally write very fective order for your theme of the case specific order and asking a short series of few pre-deposition notes, but simply have questions in relation to each exhibit, it is my exhibits ready to go. While always ad- • Pre-mark the exhibits impressive to everyone in the room and vancing my theme of the case, the ex- • Agree, agree, agree shows ultimate control to your opposing hibits really drive the questioning. attorney and to the deponent. You show • Chip away at the basis of any disagree- that you carefully thought about why you What if your deposition doesn’t include ments are taking the deposition, how you are any exhibits? The answer is, there is no going to take the deposition, and in what deposition that cannot include exhibits – • Short impeachment questions order you wish the deponent to think if they are not obvious, you need to create about the various issues in the case. them and remember any exhibit that you • Short depositions, get your information, create that is authenticated by the witness then … shut up and sit down! The order of presentation of these exhibits is admissible! will many times decide how the witness Since leaving the Lake County State’s Attor- will answer the specific questions. As in Listen, Listen, Listen... ney Prosecutors’ Office in 1987, Scott Gib- the type of questioning, you want the wit- Staring down at notes, not making eye son has and continues to exclusively represent ness to have to answer about exhibits that contact, thinking of your next question – individuals and families who have been in- are unassailable and of which he must all wrong for effective deposition taking – jured by an individual, company, corporation, identify, authenticate, and use to support you must listen! your case. You now have already created and public or government organizations. most of your admissible (by stipulation) Conclusion: Phone: 847/263-5100; Fax: 847/360- trial exhibits. When you get to the exhibits Control! Control! Control! 9100; E-mail: [email protected];Website: to which the witness will not agree, you • Decide to take the deposition www.gibsonlaw.us X The Docket June 2010 June 2010 The Docket 15 Emergency Motions & Petitions for Rule to Show Cause for Contempt

hat is an emergency? There orders entered at the hearing shall be porary restraining order to issue. Nagel v. is no statutory or court rule served personally,or by US Mail upon all Gerald Dennen & Company. 272 Ill. App. 3d Wdefinition. parties not theretofore found by the 516 (1st Dist. 1995). “In the case at bar, Court to be in default for failure to plead, plaintiff argues that Rule 2.2 of the circuit Local Rules 2.05 and 11.10 deals with the and proof of service thereof shall be court of Cook County,providing for emer- procedure and notice for an emergency filed with the Clerk of the Court within gency motions, is inapplicable because no motion. two (2) days of the hearing thereon. emergency existed. The parties have not cited to, nor has our research revealed, 2.05 Emer- • Counsel shall use every reasonable ef- cases addressing the issues of what fact gency Mo- fort to notify opposing parties or counsel situation, under Rule 2.2., constitutes an tions of entry of each Order, at the earliest op- emergency, whether some notice should • A p p l i - portunity. have been given and, if notice was given, cation for whether it was adequate in view of the emergency re- 11.10 Emergency Motions stated facts proffered in support of the lief. If emer- An Emergency Motion shall be labeled as emergency motion. However, we find in- gency relief is such and shall be heard only if the Court structive those cases involving the is- requested, ap- first determines that an emergency exists suance of a temporary restraining order By plication shall and that reasonable attempts at notice or injunction.” Nagel. “It is well settled be made to the have been made. Any emergency motion Gary L. that “a temporary restraining order may a s s i g n e d shall be verified and state the nature of the be obtained without notice to an adverse Schlesinger judge, or if emergency as well as when the emergency party only if it ‘clearly appears from spe- unavailable, arose. A party and/or his or her counsel cific facts shown by affidavit or complaint to the judge specifically assigned to sit in who respond to a motion propounded as, that immediate and irreparable injury, his stead. If neither judge is available, but found not to be an emergency may be loss, or damage will result to the applicant application shall be made to the presid- entitled to reimbursement by the propo- before notice can be served and a hearing ing judge of the division to which the nent of actual expenses, fees and costs in- held thereon.’” Id. Citing Hirschauer v. case is assigned. curred in responding to the said motion. Chicago Sun-Times (1989), 192 Ill. App. 3d • Each application for emergency relief A Lexis search for emergency motion re- 193, 201, 548 N.E.2d 630, 139 Ill. Dec. shall be accompanied by an affidavit of veals 89 reported decisions. One case that 245, appeal dismissed (1990), 131 Ill. 2d the movant or movant’s attorney stat- defines emergency is Opty’s Amoco, Inc. v. 559, 553 N.E.2d 396, 142 Ill. Dec. 882. ing the reason for emergency relief; and, Village of South Holland. 149 Ill. 2d 265 “Injunctive relief, without notice, is an ex- in cases where the request is without (1992). In that case, the Court provided: traordinary remedy appropriate only under the most extreme and urgent cir- notice, except as permitted by law, said “Emergency” has been defined as: affidavit shall state what attempts have cumstances. The critical inquiry in all been made to notify opposing counsel or A sudden unexpected happening; an cases is whether, during the period it takes the opposing party. Failure to attach unforeseen occurrence or condition; to give notice, the opponent will take such said affidavits to the request for emer- perplexing contingency or complica- measures as to destroy the substance of gency relief may be grounds for denial tion of circumstances; a sudden un- the litigation or otherwise obstruct the of the motion. expected occasion for action; court from dealing effectively with the is- exigency; pressing necessity. Emer- sues, and whether proper notice might • Every complaint or petition requesting gency is an unforeseen combination have averted litigation by immediately an ex parte order for the appointment of of circumstances that calls for [*278] testing the validity of the injunctive re- a receiver, temporary restraining order, immediate action. (Black’s Law Dic- lief.” Id. preliminary injunction, or any other tionary 272 (5th ed. 1979).) emergency relief, shall be filed in the Of- “’In those situations involving a tempo- fice of the Circuit Clerk, if during court The Court further provided that this defi- rary restraining order or an injunction, hours, before application to the court nition comported with the common un- the requirement, that the moving party for the order. derstanding of “emergency.” demonstrate that it will suffer irreparable harm before notice can be given and a • If a motion is heard without prior notice There is a First District opinion that says hearing held on the merits, comports with under this rule and any respondent or that to determine if something is an emer- the ordinary meaning of “emergency.” It other party fails to appear, a copy of the gency,look to what is necessary for a tem- is also clear that even in emergency situa- 16 The Docket June 2010

tions, “some notice, however informal, is response rather than an answer? Discuss human beings then we all would be un- greatly to be preferred to none at all.’“ Id. among yourselves.) employed. However, while real emergen- citing Skarpinski v.Veterans of Foreign Wars cies exist, there are also proper ways to (1951), 343 Ill. App. 271, 275, 98 N.E.2d Therefore, how can there be an emer- secure relief for your clients in those situ- 858; see also Hirschauer, 192 Ill. App. 3d gency petition for rule to show cause if ations and emergency petitions for rule to at 201, American Warehousing, 169 Ill. there is not any relief that can be granted show cause cannot be used for this pur- App. 3d 708, 715, (1st Dist. 1988), and other than to set a later hearing date? For pose. Sangamo Electric, 42 Ill. App. 3d 563, 565, instance, if a party was ordered not to (4th Dist. 1976). withdraw funds from an account and does Part 13.00 Contempt of Court so, then perhaps the appropriate petition (Effective December 1, 2006) If an emergency is something that re- would be for an emergency injunction and quires quick court action with less than not an emergency petition for rule to Rule 13.01 the usual amount of notice, can there be show cause. I believe that the law is that Proceedings in Contempt there cannot be an emergency petition for an emergency petition for rule to show Contumacious Conduct rule to show cause. Filing one will not give cause? The petition seeks to ask the court Contumacious conduct consists of verbal the relief your client needs quickly. Per- to enforce one of its orders by contempt or non-verbal acts which: proceedings. Our local court rule 13 is an haps a petition for injunction or to enforce excellent summary of the law of con- a prior order will get the relief needed. • Embarrass or obstruct the Court in its tempt. It is attached at the end of this ar- administration of justice or derogate Does the fact that the first available court ticle. A more detailed version of the law from its authority or dignity date is 3 to 4 weeks away constitute an with many case citations is contained in emergency? If so, then the case could be the case of In re the Marriage of Betts, 200 • Bring the administration of justice into put on the call as an emergency and Ill. App. 3d 26 (4th Dist. 1990). Shepar- disrepute shorter notice than normal given. How- dizing this case shows that it has been ever, this does not appear to fall within the • Constitute disobedience of a court order cited by 66 later Illinois cases and by var- definition of emergency as defined in the or judgment ious other State and Federal Courts. One two cases cited above. must have a thorough knowledge of this Direct Criminal Contempt case to do any contempt work. If you are Therefore, there cannot be an emergency Contumacious conduct constitutes a di- not conversant with the case, become so. notice and petition for rule to show cause. rect criminal contempt if it is committed Courts should not entertain them as in such a manner that no evidentiary There are four types of contempt, civil or emergencies. The first thing the court is to hearing is necessary to determine the criminal, direct or indirect, they are all de- do is to determine if the pleading and affi- facts establishing such conduct and is fined in Betts and the Rule. The definitions davit present an emergency. If the court committed in an integral part of the Court and differences are not important for this determines that there is no emergency, while the Court is performing its judicial discussion. then the matter should be taken off the functions. call and no other relief should be granted, Both Betts and Rule 13 detail the neces- including setting the case on the next • Court’s alternatives. Upon the com- sary procedure. In any of the contempt available court date, even if 3 or 4 weeks mission of an act constituting a direct situations, the matter is started by filing a hence. criminal contempt, the Court may: verified petition. If it shows a prima facie case that there is a valid court order that If the court determines the matter is not • Summarily find the contemnor in has allegedly been violated, then the court an emergency, then pursuant to Rule contempt and impose sanctions in- shall issue a rule to show cause, which 11.10, “[a] party and/or his or her coun- stanter sets the matter for hearing and directs sel who respond to a motion propounded • Summarily find the contemnor in that notice be given to the respondent. See as, but found not to be an emergency may contempt and impose sanctions Rule 13(D)(2)(a). That is the only relief be entitled to reimbursement by the pro- within a reasonable time that can be granted upon the filing of the ponent of actual expenses, fees and costs petition. incurred in responding to the said mo- • Delay the finding of contempt and tion.” This does not occur enough. I have the imposition of sanctions until a Notice is then served on the respondent found that either the requirement to de- later time. When the finding of con- informing him or her of the matter and of termine whether it is an actual emergency tempt is delayed, the contempt pro- the hearing date. There cannot be an im- is ignored or when the court does find it ceeding shall be conducted in the mediate hearing to determine contempt not to be an emergency, it is simply set on same manner as an indirect crimi- upon the filing of the petition. The only re- another date with a briefing schedule. nal contempt as provided in Para- lief the court can grant at that time is to graph C of this rule issue the rule to show cause and set a The reality is that there are real emergen- hearing date. Note that rule 13(D)(2)(c) cies that we as divorce practitioners have • Conduct specified/statement in mit- permits the respondent to file a written to deal with for our clients. Remember, if igation. Prior to an entry of a finding of answer. (Should the respondent not file a all people were calm, adult, and rational contempt, the Court shall inform the June 2010 The Docket 17

contemnor of the specific conduct form- presence of the Court or in an area that is Upon the first appearance of the re- ing the basis of the finding. Prior to the not an integral or constituent part of the spondent, the Court shall inform the re- imposition of sanctions, the Court shall Court, or the elements of the offense are spondent of his right to: permit the contemnor an opportunity to otherwise not within the personal knowl- present a statement in mitigation. edge of the judge. A contumacious act • Notice of the charge and of the time committed in the presence of the Court, and place of the hearing thereon • Sanctions. If the matter is heard with- but not summarily treated as direct crim- • An evidentiary hearing, including out a jury and upon a finding of direct inal contempt as provided in Paragraph B, criminal contempt, the Court may im- the right to subpoena witnesses, may be prosecuted as an indirect criminal confront the witnesses against him, pose a fine not to exceed five hundred contempt. dollars ($500.00), incarceration in a and make a response to the charge penal institution other than the peni- • Petition for adjudication. An indirect • Counsel and, if indigent, to the ap- tentiary for a term not to exceed six (6) criminal contempt proceeding shall be pointment thereof months, or both. If a jury finds the re- initiated by the filing of a petition for ad- spondent guilty of contempt, the Court judication of indirect criminal con- • Freedom from self-incrimination is not limited in the fine or incarceration tempt. The petition shall be verified and it may impose.The Court, in the exercise set forth with particularity the nature • The presumption of innocence of its discretion, may impose such other of the alleged contemptuous conduct. • Be proven guilty only by proof of sanctions as it deems appropriate. The charge may be prosecuted by the guilt beyond a reasonable doubt State’s Attorney or, if he declines, by an • Written order required. Upon impo- attorney appointed by the Court. sition of sanctions, the Court shall enter • A trial by jury if the Court, prior to the commencement of the hearing, a written judgment order setting forth • Notice of Hearing. If the Court finds declares that a sentence of incar- the factual basis of the finding and spec- that the petition sets forth allegations ifying the sanctions imposed. ceration of more than six (6) which support the charge, it shall set months, a fine of more than the matter for hearing and order notice • When referral to another judge re- $500.00, or both, may be imposed be given to respondent. Notice of the quired. Where a controversy between as a sanction upon a finding of hearing and a copy of the petition shall the judge and the contemnor is inte- guilty be served and returned in the manner grated with the alleged contumacious as provided in Supreme Court Rule conduct and embroils the judge to the • When referral to another judge re- 105(b); or, in child support enforcement degree that the judge’s objectivity can quired. Referral of the petition to an- cases or if the Court so directs, the Clerk reasonably be questioned, referral to an- other judge for the hearing on the issues of the Court or petitioner’s attorney other judge on both issues of contempt of contempt and the imposition of sanc- may give notice by regular U.S. Mail, tions is required where a controversy and of an appropriate sanction is re- postage prepaid, to the respondent’s last between the judge and the alleged con- quired. In this event, the judge before known address. If notice is made by reg- temnor is integrated with the alleged whom the alleged contempt transpired ular U.S. Mail, proof of mailing notice contumacious conduct and embroils shall specify in writing the nature of the shall be made a part of the record. No- the judge to the degree that the judge’s alleged acts of contempt, shall direct tice by personal service shall be served objectivity may be reasonably ques- that a record of the proceedings sur- not less than seven (7) days prior to the tioned. rounding the said acts be prepared and hearing, and notice by U.S. Mail shall be shall transfer the matter to the appro- • Statement in mitigation. Upon an priate assignment judge for assignment. mailed not less than ten (10) days prior to the hearing. In addition to the time, adjudication of contempt, the judge The judge hearing the proceedings after shall afford the contemnor the opportu- the reassignment shall base his findings date and place of hearing, the notice shall include the following words in bold nity to make a statement in mitigation and adjudication of the contempt prior to the imposition of any sanction. charge solely on the transferred written type: “YOUR FAILURE TO APPEAR AT charge and the record. THIS HEARING MAY RESULT INYOUR • Sanctions. The Court, in the exercise ARREST.” If the respondent fails to ap- of its discretion, may impose sanctions • Appeal. An appeal from a judgment of pear after due notice or if the Court has as it deems necessary. direct criminal contempt may be taken reason to believe the respondent will not as in criminal cases. Upon the filing of a appear in response to the notice, the • Written order required. Upon an ad- notice of appeal, the Court may fix bond Court may issue a bench warrant di- judication of contempt, the Court shall and stay the execution of any sanction rected to the respondent. When a war- enter a written judgment order setting imposed pending the disposition of the rant issues, the Court shall set bail as forth the factual basis for the finding appeal. authorized by criminal cases. The and specifying the sanctions imposed. amount of bail shall be indicated on the Indirect Criminal Contempt order of attachment. • Appeal. An appeal from a judgment of A contumacious act constitutes an indi- indirect criminal contempt may be taken rect contempt when it occurs outside the • Explanation of respondent’s rights. as in the case of direct contempt as spec- 18 The Docket June 2010

ified in Paragraph B.6 of this rule. a copy of the petition shall be may continue the matter for a rea- served on the respondent and made sonable time before the imposition Civil Contempt of record in the manner specified in of sanctions or; it may impose A contumacious act constitutes a civil Paragraph C.2 of this rule. The pro- sanctions forthwith. Prior to the contempt if: vision of Part 15.01 of these rules imposition of sanctions, the con- shall apply to this notice. If, after temnor shall have the right to make • The act consists of the failure to obey a notice, the respondent fails to ap- a statement in mitigation. Sanc- court order or judgment; and pear, the Court may order a body tions may include a continuing fine • Coercive rather than punitive sanctions attachment to issue and set bail. and/or incarceration in a penal in- are sought to compel compliance with stitution other than a penitentiary. • Response/burden of proof. No the order or judgment. The sanctions imposed shall re- later three (3) days prior to the hear- main in full force and effect until • Petition for adjudication. A civil ing, the respondent may file a writ- the respondent purges himself of contempt proceeding shall be initi- ten answer denying, with specificity, contempt or is otherwise dis- ated by the filing of a petition for any of the allegations, together with charged by due process of law. The adjudication of civil contempt un- any affirmative defenses. Subse- Court may assess reasonable costs less the act is committed in the quent written or oral denials and af- and attorney’s fees against the con- presence of the Court. The petition firmative defenses may be made only temnor. shall be verified and set forth with with leave of Court. Those allega- particularity that portion of the tions of the petition not specifically • Written order required. Upon court order that is alleged to have denied may be deemed admitted, an adjudication of civil contempt, been violated and the nature of the and the remaining allegations in a written judgment order shall be violation. If the Court finds that the issue shall be proven by a prepon- entered specifying the contuma- petition sets forth allegations which derance of the evidence. If the basis cious conduct, the sanction im- support the charge, it shall set the of the charge of civil contempt is the posed, and the means by which the matter for hearing and order that failure of the respondent to make respondent may purge himself. A notice be given to the respondent. court ordered payments to the Clerk copy of the judgment shall be pro- of the Court, the records of the Clerk vided to the contemnor. • Notice. Notice of the hearing and shall be prima facie evidence of the amount paid and dis- • Appeal. An appeal from a judg- bursed by the Clerk. ment a civil contempt may be taken as in civil cases. Upon filing a notice • of appeal, the Court may fix bond Method of hear- and may stay the execution of any ing. Civil contempt sanction imposed pending the dis- proceedings shall be position of the appeal. tried before the Court without a Gary L. Schlesinger opened his firm in Liber- jury. tyville in 1986, devoting his practice exclu- sively to family law matters including • S a n c - divorce, alimony, custody, support, pater- tions. If the Court nity, and adoption cases. He has handled finds the respondent cases in Cook and Lake Counties in the trial in civil contempt, it and the appellate court. June 2010 The Docket 19 20 The Docket June 2010 Recent Amendment to and It’s Impact on

Part One: A Trial Judge’s the custody portion made a determination ment or appeal or both. Such a finding and entered a “Custody Judgment.”The dis- may be made at the time of the entry of Perspective appointed parent filed a Notice of Appeal the judgment or thereafter on the within 30 days, but the appeal was dis- court’s own motion or on motion of n February 10, 2006, the Illinois missed following In re Marriage of Leopando, any party.The time for filing a notice of Supreme Court adopted the “900” 96 Ill. 2d 114 (1983), and the “Custody appeal shall be as provided in Rule 303. Oseries of rules which included Rule Judgment” became nothing more than a In computing the time provided in Rule 922 concerning time limitations for custody temporary order. When the financial issues 303 for filing the notice of appeal, the cases under the Illinois Marriage and Disso- finally went to trial, the trial judge refused to entry of the required finding shall be lution of Mar- rehear the issue of custody and adopted the treated as the date of the entry of final riage Act. Rule earlier custody judgment as part of a final judgment. In the absence of such afind- 922 which be- Judgment for Dissolution of Marriage. The ing, any judgment that adjudicates came effective entire judgment then became final and ap- fewer than all the claims or the rights on July 1, pealable.This case illustrates the problem of and liabilities of fewer than all the par- 2006, pro- how tomeaningfullyenforce Rule922 with- ties is not enforceable or appealable and vides: out creating just another temporary cus- is subject to revision at any time before tody order which can be modified under Rule 922. the entry of a judgment adjudicating all 750 ILCS 5/501 with only a minimal show- the claims, rights, and liabilities of all Time Limita- ing. tions the parties. In order to address this problem and provide By All child (b) Judgments and Orders Appeal- a means to enforce Rule 922, and get the able Without Special Finding. The c u s t o d y children out of the litigation, application Circuit Judge p r o c e e d - following judgments and orders are ap- was made to the Illinois Supreme Court pealable without the finding required Edward R. ings under Rules Committee suggesting that making a Jordan this rule in for appeals under paragraph (a) of this Custody Judgment arising from the severed rule: the trial issue of custody final in nature and imme- court shall be resolved within 18 diately appealable would put teeth into Rule *** months from the date of service of 922 and give trial judges all over the State the petition or complaint to final the ability to strenuously comply with the (6) A custody judgment entered pur- order. In the event this time limit is not 18-month limitation. The Supreme court suant to the Illinois Marriage and Dis- met, the trial court shall make written acted on that application on February 26, solution of Marriage Act (750 ILCS findings as to the reason(s) for the delay. 2010, and now the children have won. 5/101 et seq.) or section 14 of the Illi- The18-month time limit shall not apply nois Parentage Act of 1984 (750 ILCS if the parties, including the attorney On February 26th, the Supreme Court 45/14); or a modification of custody presenting the child, the guardian litem added subsection (6) to Rule 304(b).The rel- entered pursuant to section 610 of the or the child representative, agree in evant portion of Rule 304 now reads as fol- Illinois Marriage and Dissolution of writing and the trial court makes a lows: Marriage Act (750 ILCS 5/610) or sec- written finding that the extension of time is for good cause shown. In the Rule 304. Appeals from Final Judg- tion 16 of the Illinois Parentage Act of event the parties do not agree, the court mentsThat Do Not Dispose of an Entire 1984 (750 ILCS 45/16). may consider whether an extension of Proceeding The time in which a notice of appeal time should be allowed for good cause may be filed from a judgment or order shown. (Emphasis provided.) (a) Judgments As ToFewer Than All Parties or Claims — Necessity for appealable under this Rule 304(b) shall Efforts bythe trial courts to enforce Rule 922 Special Finding. If multiple parties or be as provided in Rule 303. have been quite difficult. In at least one case, multiple claims for relief are involved in (Emphasis provided.) after the 18 month term had passed, the an action, an appeal may be taken from issue of custody was severed in accord with a final judgment as to one or more but The committee comments to this amend- section 2-1006 of the Code of Civil Proce- fewer than all of the parties or claims ment clarify certain points. dure [735 ILCS 5/2-1006] and sent off for only if the trial court has made an ex- trial while discovery on the financial issues press written finding that there is no Committee Comments in the case continued.The judge who heard just reason for delaying either enforce- February 26, 2010 June 2010 The Docket 21 Supreme Court Rule 304(b) Family Law Cases

Paragraph (b) This new subsection makes a “custody judg- Third, there is nomenclature. When the ment” entered before the entire case is re- issue of custody is severed and tried sepa- The term “custody judgment” comes solved appealable without a special finding rately,the resulting written decision MUST from section 610 of the Illinois Mar- — just like a finding of contempt. What the be identified as a “CUSTODY JUDGMENT.” riage and Dissolution of Marriage Act amendment does is put teeth into Rule 922. Not only is that required in order to make (750 ILCS 5/610), where it is used to Now judges all over the state can sever the the determination appealable under the refer to the trial court’s permanent de- issue of custody at the 18 month mark and new rule, but it more accurately describes termination of custody entered incident try custody as a separate issue. After such a the type of final custody judgment which is to the dissolution of marriage, as dis- trial, the court may enter a “custody judg- not only immediately appealable, but which tinguished from any temporary or in- ment” which becomes final and immedi- can only be modified under section 610 of terim orders of custody entered ately appealable.The financial aspects of the the IMDMA. (750 ILCS 5/610) If careful pursuant to section 603 of the Act case may then go forward with their own procedure is followed, then regardless of (750 ILCS 5/603) and any orders mod- trial or settlement. According to the com- when in the chronology of the case it oc- ifying child custody subsequent to the mittee comments, this rule change super- curs, the Custody Judgment will become a dissolution of a marriage pursuant to sedes Leopando. Now,some concerns. final order. section 610 of the Act (750 ILCS 5/610). The Illinois Parentage Act of The first problem is educating judges and It would seem that diligent parents could in- 1984 also uses the term “judgment” to lawyers all over the state about the impact voke the finality created by the amendment refer to the order which resolves cus- of this rule change. We can help by includ- without severing the issue of custody or ac- tody of the subject child. See 750 ILCS ing it in CLE programs as soon as possible. tually going to trial. Almost all family law 45/14. We can also reach out to IICLE, NBI, and trial and motion judges try desperately to re- other CLE providers to include the subject in solve custody issues as early as possible, and Subparagraph (b)(6) is adopted pur- their upcoming family law programs. more often than not with the litigants them- suant to the authority given to the Illi- selves making parenting decisions for their nois Supreme Court by article VI, Second, is the question of “bifurcation” ver- children. We encourage parents to bring us sections 6 and 16, of the Illinois Consti- sus “severance.” In the committee’s discus- voluntary parenting agreement as early as tution of 1970. The intent behind the sion of the Supreme Court’s superseding of possible in the litigation. We motivate them addition of subparagraph (b)(6) was to Leopando, they remark that, before the with parenting classes (Supreme Court Rule supercede the supreme court’s decision amendment, the issue of custody could not 924) and mediation programs (Supreme In re Marriage of Leopando, 96 Ill. 2d be “severed” as a separate issue. Under the Court Rule 905). Sometimes we add a 114, 119 (1983). In Leopando, the amendment, however, the committee says Guardian ad litem or a Children’s Represen- court held that the dissolution of mar- that a child custody judgment, “...even tative to further encourage resolution of riage comprises a single, indivisible when it is entered prior to the resolution of custody issues without trial. These efforts claim and that, therefore, a child cus- other matters involved in the dissolution are frequently met with success in the form tody determination cannot be severed proceeding such as property distribution of Joint Parenting Agreements, agreements from the rest of the dissolution of the and support, shall be treated as a distinct granting sole custody to one parent or the marriage and appealed on its own claim....” other, visitation schedules, and case-ori- under Rule 304(a). Now, a child cus- ented solutions. Most of the time, and even tody judgment, even when it is entered According to 750 ILCS 5/403(e), bifurca- though the reality is that these agreements prior to the resolution of other matters tion is the separation of grounds from all are only temporary, the parties evidence involved in the dissolution proceeding other issues in a case. Section 2-1006 of the their intent in the agreements by providing such as property distribution and sup- Code of Civil Procedure, on the other hand, that their intention is to have the agree- port, shall be treated as a distinct claim provides that, “(a)n action may be sev- ments incorporated in their eventual settle- and shall be appealable without a spe- ered,...as an aid to convenience, whenever it ment agreements and judgments for cial finding. A custody judgment en- can be done without prejudice to a substan- dissolution. These voluntary agreements tered pursuant to section 14 of the tial right.” It would appear that a reading of can be made permanent, however,if such is Illinois Parentage Act of 1984shallalso the appropriate statutes and the commit- the parties’ intent. be appealable without a special finding. tee’s comments suggests that bifurcation The goal of this amendment is to pro- would be inappropriate because of the en- In those cases where the parties have gen- mote stability for affected families by tanglement of grounds, while severing the uinely resolved issues of custody and visita- providing a means to obtain swifter res- “distinct claim” regarding custody would tion, it would seem that all they need do is olution of child custody matters. isolate the issue and preserve it for appeal. designate their final agreement as a “Cus- 22 The Docket June 2010 tody Judgment”, and express their intent to is entered or when the petition for dis- 303. And Rule 303(a)(1) sets the time lim- be so bound in the language of the agree- solution of marriage or legal separation its for filing of the notice of appeal. That is, ment itself. or declaration of invalidity of marriage 30 days following either the entry of the is dismissed. Custody Judgment itself, or 30 days follow- Fourth is the question of the effect to be ing, “... the entry of the order disposing of given to a “Custody Judgment” regardless of 750 ILCS 5.501(d). the last pending post judgment motion di- whether it came to be as the result of a trial An order or agreement which does not con- rected against that judgment.” or the voluntary actions of the parents. As form to the requirements of Rule 304((b)(6) the amendment to the rule and the com- When Rules 922 and 304(b)(6) are read to- is temporary in nature and may be revoked mittee comments give a Custody Judgment gether, they afford trial judges the opportu- ormodified,“...onashowingbyaffidavitand intended to be final all of the indicia of fi- nity to truly expedite the disposition of upon hearing;...” [750 ILCS 5/501(d)(2)] children’s issues in family law cases. Every nality, such a judgment can only be modi- However, a Custody Judgment which does fied under 750 ILCS 5/610. This is of conform to the amendment – or is intended family law trial judge in the State has fought monumental importance for a trial judge bythepartiestodoso–becomesafinalorder for years to bring clarity and quick, final res- and for the litigants. which can only be modified under the terms olution to the issues facing children in di- and conditions of 750 ILCS 5/610, which vorce, parentage and related cases. The Section 501(d) of the IMDMA provides that: are considerably more stringent. Supreme Court has now given us the tools we have needed for so long. We must make A temporary order entered under this Fifth, as this “Custody Judgment” is a final, good use of these tools to bring stability to Section: appealable order, it MUST be appealed all of the children in the cases before us. (1) does not prejudice the rights of the within 30 days of its entry.It cannot be set Hon. Edward R. Jordan is a Circuit Judge as- parties or the child which are to be ad- aside until the financials are disposed of and signed to the Domestic Relations Division of the judicated at subsequent hearings in the then appealed with the rest of the case. It is, Circuit Court of Cook County, Illinois. He sat proceeding; for all intents and purposes, literally a final custody order, not a temporary order. This in that division as a trial judge from the day he (2) may be revoked or modified before restriction is imposed by Supreme Court came onto the bench on August 1, 1994, until final judgment, on a showing by affi- Rule 304(b) which states that, “The time in December 2004. He now sits as a Preliminary davit and upon hearing; and which a notice of appeal may be filed from a Judge in the same division. Before coming to the judgment or order appealable under this bench, Judge Jordan was in private practice for (3) terminates when the final judgment Rule 304(b) shall be as provided in Rule 22 years. June 2010 The Docket 23 Part Two: An Appellate after a trial on the merits in a criminal vides for appeals from final judgments as case, there shall be no appeal from a to fewer than all parties or claims, but Judge’s Perspective judgment of acquittal. The Supreme only in very specific circumstances. State Court may provide by rule for appeals Farm Fire & Cas. Co. v. John J. Rickhoff Sheet he Illinois Supreme Court has re- to the Appellate Court from other Metal Co., 394 Ill. App. 3d 548, 556 cently reaffirmed its commitment than final judgments of Circuit (2009). 304(a) allows the court to make a Tto promote stability for families by Courts. written finding that there is no just reason amending the Civil Appeals Rules. The for delaying either enforcement or appeal goal of the changes is to obtain swifter res- Ill. Const. 1970, art. VI, §6. The supreme or both. Rickhoff, 394 Ill. App. 3d at 556. olution of court rules function in conjunction with The matter must then be appealed within child custody this constitutional right. See, e.g., 134 Ill. 30 days, or the right to appeal is lost. Offi- matters. Prac- 2d R. 301. Thus, subject to only the ex- cial Reports Advance Sheet No. 15 (July titioners need ceptions specified in the supreme court 16, 2008), R. 303, eff. May 30, 2008, cor- rules, an appeal can be taken in a case to understand rected eff. June 4, 2008; Official Reports only after the circuit court has entered how the new Advance Sheet No. 20 (September 27, final judgments on all claims against all appellate pro- 2006), R. 304(a), eff. September 20, parties. See Pekin Insurance v. Phelan, 343 cedures will 2006; see also Williams v. Manchester, 372 Ill. App. 3d 1216, 1219 (2003), citing effect their Ill. App. 3d 211, 220 (2007), vacated in Marsh v. Evangelical Covenant Church, 138 clients, and part on other grounds, 228 Ill. 2d 404 Ill. 2d 458, 465 (1990). most impor- (2008). tantly, their By The first question to ask, then, is whether clients’ chil- Rule 304(b) lists a series of orders that are Justice the order in question is final. “Finality,” in dren. appealable automatically upon entry the sense of appellate jurisdiction, is a Mary Jane without a special finding of appealability term of art with a very precise meaning. Appellate ju- by the trial court. Official Reports Ad- Theis See, e.g., F.H. Prince & Co. v. Towers Finan- risdiction can vance Sheet No. 20 (September 27, raise thorny questions for lawyers who cial Corp., 266 Ill. App. 3d 977, 982 (1994). An order is said to be final if it “ ‘ 2006), R. 304(b), eff. September 20, only occasionally take on appeals. Appel- 2006. The law is clear that orders within late jurisdiction is the power of an appel- “disposes of the rights of the parties, ei- ther upon the entire controversy or upon the scope of 304(b) must be appealed late court to review and revise a lower within 30 days of their entry; otherwise, court’s decision. It is a definite, black-and- some definite and separate part thereof,” ’ ” such as a claim in a civil case. In re Es- the right to appeal such an order is lost. white concept; it either exists or it does D’Agostino v. Lynch, 382 Ill. App. 3d 639, not. See, e.g., Almgren v. Rush-Presbyterian- tate of French, 166 Ill. 2d 95, 101 (1995), quoting Treece v. Shawnee Community Unit 642 (2008) (post-judgment collection St.Luke’s Medical Center, 162 Ill. 2d 205, proceeding under 2-1402); Longo v. Globe 210 (1994). It cannot be conferred upon School District No. 84, 39 Ill. 2d 136, 139 Auto Recycling, 318 Ill. App. 3d 1028, the court by agreement of the parties or (1968), quoting Village of Niles v. Szczesny, 1036 (2001) (contempt proceeding); Vil- by a waiver. County Collector v. Redco, Inc., 13 Ill. 2d 45, 48 (1958). The mere fact lage of Glenview v. Buschelman, 296 Ill. 3 Ill. App. 3d 917, 919 (1972). The that an order resolves important issues App. 3d 35, 39 (1998) (section 2-1401 supreme court has made clear that, “ ‘[a] does not render it final. In re Curtis B., 203 petition for relief from judgment); In re reviewing court must be certain of its ju- Ill. 2d 53, 59 (2002). An order is final for Liquidation of MedCare HMO, Inc., 294 Ill. risdiction prior to proceeding in a cause of purposes of appeal if it terminates the lit- App. 3d 42, 46 (1997) (liquidation pro- action,’ ” and has reaffirmed that “the as- igation between the parties so that, if af- ceeding); In re Estate of Thorp, 282 Ill. App. certainment of its own jurisdiction is one firmed, the trial court only has to proceed 3d 612, 616 (1996) (estate administra- of the two most important tasks of an ap- with the execution of the judgment. In re pellate court panel when beginning a Guardianship of J.D., 376 Ill. App. 3d 673, tion). That is because the 30-day time case.” People v. Smith, 228 Ill. 2d 95, 106 676 (2007). Perhaps most importantly, a frame is mandatory, not optional. Longo, (2008), quoting R.W.Dunteman Co. v. C/G final order is not modifiable by the circuit 318 Ill. App. 3d at 1036. court after the expiration of 30 days, re- Enterprises, Inc., 181 Ill. 2d 153, 159 In order for Rule 304(b) to be effective, (1998). gardless of whether an appeal has been taken. See, e.g., Busey Bank v. Salyards, practitioners must be aware of its applica- The foundations of appellate jurisdiction 304 Ill. App. 3d 214, 218 (1999). If an bility to the child custody context; other- are set forth in the Illinois Constitution. appeal is not taken from a final order wise, the opportunity to file an appeal will Article VI, section 6, provides that: within 30 days, the order becomes res ju- be lost. For example, in D’Agostino v. dicata. Busey Bank, 304 Ill. App. 3d at 218. Lynch, 382 Ill. App. 3d 639, 642 (2008), Appeals from final judgments of a Cir- a post-judgment collection proceeding, cuit Court are a matter of right to the However, because of the “all claims, all the court entered a final order compelling Appellate Court in the Judicial District parties” rule, even if an order is final, it is the turnover of funds. Unaware that this in which the Circuit Court is located generally not immediately appealable if final order was immediately appealable except in cases appealable directly to other claims or parties remain in the pro- without a special finding under Rule the Supreme Court and except that ceeding. Supreme Court Rule 304 pro- 304(b)(4), the party seeking to appeal the 24 The Docket June 2010 turnover filed a request that the court seq. (West 2006)). Second, the Supreme position of the appeal as set forth in Rule enter a Rule 304(a) finding of appealabil- Court has superseded its decision in In re 311(a). Rule 311(a) specifically applies to ity. By the time the court entertained and Marriage of Leopando, 96 Ill. 2d 114, 119 appeals from any final order affecting ruled on that request, the 30-day time (1983), which held that child custody was child custody as well as an appeal from frame in which the turnover could have merely an issue in a dissolution proceed- any interlocutory order affecting child been appealed pursuant to Rule 304(b)(4) ing, rather than a separate claim. The en- custody from which leave to appeal has had expired. Consequently,that party lost actment of Rule 304(b)(6) elevates been granted pursuant to Rule 306(a)(5). its right to appeal the turnover order. custody to the level of a fully separate Practitioners should note that Rule D’Agostino, 382 Ill. App. 3d at 642. claim. 311(a) contains the expedited procedures that were formerly set forth in Rule 306A; On February 26, 2010, Rule 304(b) was As with appeals pursuant to Rule 304(a) however, the supreme court relocated amended to include subparagraph (6), and the other subparagraphs of 304(b), those procedures because of not only con- which provides for an immediate appeal the time in which a notice of appeal must fusing nomenclature – Rule 306A and without a special finding for “a custody be filed from a custody judgment is also 30 Rule 306(a)(5) – but also to eliminate con- judgment entered pursuant to the Illinois days, as provided in Rule 303. See Official fusion over whether the expedited proce- Marriage and Dissolution of Marriage Act Reports Advance Sheet No. 20 (Septem- dures affected appealability.It should also (750 ILCS 5/101 et seq.) or section 14 of ber 27, 2006), R. 304(a), eff. September be noted that the expedited procedures the Illinois Parentage Act of 1984 (750 20, 2006. Also as with the other types of ILCS 45/14); or a modification of custody orders appealable under Rule 304(b), if a contained in Rule 311(a) in the first in- entered pursuant to section 610 of the notice of appeal is not filed within 30 days stance place the responsibility of desig- Illinois Marriage and Dissolution of Mar- of entry of the custody judgment, the nating an appeal as an expedited child riage Act (750 ILCS 5/610) or section 16 right to appeal is lost and the custody custody appeal on the parties by requiring of the Illinois Parentage Act of 1984 (750 judgment becomes res judicata. See, e.g., them to include a special caption on all ILCS 45/16).” D’Agostino, 382 Ill. App. 3d at 642. documents filed in the appellate court. The purpose of this special caption is to Because this addition of child custody Family law practitioners should also be ensure that the parties, the appellate court judgments in marital dissolution proceed- aware that Rule 306(a)(5) still remains in clerk’s office personnel, and the court are ings is so new, it is imperative that domes- effect. That Rule enables the non-prevail- aware of the expedited nature of the case. tic relations practitioners be aware of the ing party to request leave to appeal from 30-day mandatory time frame for filing a an interlocutory, or non-final, order af- In conclusion, the recent amendments to notice of appeal. Otherwise, the right to fecting child custody. See, e.g., Curtis B., the child custody rules help to clarify the appeal will be lost in a number of cases. 203 Ill. 2d 53, 63-64 (2002) (suggesting procedures involved, facilitating their use that party should have sought to appeal for practitioners. This, in turn, promotes This amendment has two important con- permanency planning order, which was the goal of expeditiously achieving stabil- sequences. First, the supreme court has interlocutory, pursuant to Rule ity for children affected by custody dis- recognized that the trial court may enter a 306(a)(5)). The procedures for requesting putes. final custody order before the dissolution leave to appeal pursuant to Rule 306(a)(5) judgment is entered. The custody judg- are set forth in Rule 306(b). Those proce- Mary Jane Theis is a Chicago native. She re- ment is immediately enforceable and, as dures are also expedited. ceived her B.A. from Loyola University of defined in the Committee Comment to the Chicago and her J.D. from the University of Rule, the judgment can only be modified Finally, regardless of whether an appeal San Francisco School of Law. She was an As- pursuant to the strict standards of Section has been taken from a final or interlocu- sistant Public Defender, Associate Judge and 610 of the Illinois Marriage and Dissolu- tory order, practitioners must be aware Circuit Judge prior to being elected to the Illi- tion of Marriage Act (750 ILCS 5/101 et that expedited procedures apply to the dis- nois Appellate Court, First District. June 2010 The Docket 25 Family Law Case Update 2009-2010 n re Marriage of Mackin, 391 Ill. tion over child support which was to be App. 3d 518, 909 N.E.2d 912, determined after the expiration of 180 A full version I330 Ill. Dec. 890 (5th Dist. days. Child support had only been par- of the caselaw update 2009). tially resolved by the Court. Therefore, W’s The court entered judgment for dissolu- notice of appeal was premature because is available at: tion of marriage and reserved the issues the supplemental judgment resolving www.lakebar.org of mainte- maintenance and property division was By nance and di- not final and appealable. The appellate Mary J. Clark vision of court rejected the parties’ argument that $85,000. Though the independent evalu- Valerie I. property. Cus- child support can be modified at any time ators recommended sole custody to the H, tody of the pursuant to section 505(a) of the the H settled the case on the eve of trial Steiner children was IMDMA. The appellate court held that sec- agreeing to joint custody with the W as Megan V. granted to H tion 510 of the IMDMA provides that primary custodial parent. The court re- McAlister (Husband). A child support can only be modified upon a quired the H to pay 40 percent of the W’s supplemental substantial change in circumstances. In fees. judgment as to maintenance and property this case, child support will be set after the The Appellate Court affirmed the Trial division was entered a month later. W expiration of 180 days irrespective if W’s Court’s award of fees. H claimed that (Wife) filed a post-trial motion to recon- financial circumstances have changed. §508(b) fees did not apply. The Appellate sider the issues of maintenance and prop- See also: Privilege - In re Marriage of Court did not address this issue and found erty division. The trial court denied W’s Slomka, 922 N.E.2d 36, 2009 Ill. App. that fees were proper under §508(a). H’s motion to reconsider, but the order en- Lexis 1270 (1st Dist. 2009); Mainte- contention that once the court makes a tered on that date also addressed the issue nance - In re Marriage of O’Brien, 393 finding that the parties are able to pay of child support which was not included Ill. App. 3d 364, 912 N.E.2d 729, 332 their own fees, that the inquiry ends and in prior orders. The order provided that no Ill. Dec. 242 (2nd Dist. 2009); Prop- that the court may not look at any other child support would be ordered at that erty Division- In re Marriage of San- factors. The Appellate Court disagreed. time because W’s marital assets were fratello, 393 Ill. App. 3d 641, 913 N.E. The fact that the H unnecessarily in- placed in a 503(g) trust for the benefit of 2d 1077, 332 Ill. Dec. 787 (1st Dist. creased the costs of the litigation was a the children. The court further provided 2009) relevant factor that the court could con- that no order would be entered on child sider in making an award since it is di- In re Marriage of Haken, 394 Ill. support until the expiration of 180 days, rected to consider all relevant factors App. 3d 155, 914 N.E.2d 739, 333 at which time the matter, including the fi- when making an award of fees. Ill. Dec. 320 (4th Dist. 2009) nancial circumstances of W,would be re- This case involved a custody dispute be- viewed and a child support amount In re Marriage of Harrison, 388 Ill. tween the parties and a subsequent award determined. W then filed a notice of ap- App. 3d 115, 903 N.E.2d 750, 328 of attorney’s fees to the W.The Trial Court peal as to the division of certain property Ill. Dec. 90 (1st Dist. 2009). found that the H acted improperly by In custody battle finding that F alienated and the maintenance award. needlessly increasing the cost of litigation. daughter from M and custody ruling in The appellate court decided to address the This appeal arises on the award of attor- favor of M did not mandate attorney’s fees issue of its jurisdiction sua sponte, specif- ney’s fees. H hired two independent Sec- to M. See also: Maintenance - In re ically whether or not there was a final and tion 604.5 evaluators which significantly Marriage of Awan, 388 Ill. App. 3d appealable order.The appellate court held increased the fees in the case. Pursuant to 204, 902 N.E.2d 777, 327 Ill. Dec. that a petition for dissolution of marriage Section 503(d,) the Trial Court found that 656 (3rd Dist. 2009); Property Divi- advances a single claim that includes sev- both parties had the ability to pay their sion - In re Marriage of Lundahl, 396 eral ancillary issues such as maintenance, own fees, but considering the 503(d) fac- Ill. App. 3d 495, 919 N.E.2d 480; 335 child support, property division, custody tors and other equitable factors weighed Ill. Dec. 761 (1st Dist. 2009); Prop- and attorney fees. The appellate court fur- in favor of H’s contribution to W.The trial erty Division - In re Marriage of San- ther held that orders resolving ancillary court specifically found that the H need- fratello, 393 Ill. App. 3d 641, 913 N.E. issues are not final and appealable until lessly increased the costs of litigation by 2d 1077, 332 Ill. Dec. 787 (1st Dist. the court resolves the entire dissolution hiring two doctors for an independent 2009); In re Marriage of Blum, 235 claim. The appellate court held that the evaluation, as the amount paid to the two Ill. 2d 21, 919 N.E.2d 333, 335 Ill. trial court in this matter reserved jurisdic- independent evaluators was in excess of Dec. 614 (2009) 26 The Docket June 2010

In re Marriage of Rolseth, 389 Ill. 7 of the Parentage Act allows for a parent petition for fees was untimely.The Appel- App. 3d 969, 907 N.E. 2d 897, 330 adjudicated the F a two year statute of late Court reversed the trial court’s ruling Ill. Dec. 84 (2nd Dist. 2009) limitations (but before age 18) to vacate reducing maintenance and making it In 1999 a Judgment for Dissolution was the prior order after the discovery that he non-modifiable and found that the time entered requiring H to pay support for is not the F.The petition was timely filed. limitations under 503(j) do not apply to four children. In 2008, H filed a petition postdecree petitions for contribution to to declare the non-existence of a parent In re Marriage of Heady, 388 Ill. fees. H appealed to the Illinois Supreme child relationship for two of the four chil- App. 3d 115, 903 N.E.2d 750, 328 Court. dren. H alleged W intentionally and fraud- Ill. Dec. 90 (1st Dist. 2010). ulently misled him as to the parentage of A Judgment for Dissolution of Marriage H and W were married for 17 years. W the children. Pursuant to an agreed order, was entered in 1998. W was awarded cus- was awarded sole custody of the minor the trial court vacated the prior orders re- tody of the three children and H was to children. The parties entered into a mari- lating to the children based upon the pa- pay child support each week. H filed a mo- tal settlement agreement, providing that ternity tests. Less than a month later, W tion to reduce his child support obligation W would receive unallocated support and filed a motion to vacate the order claiming in 2007 after two of the children reached maintenance in the amount of $5000 she was not properly served, did not have the age of majority. The third child plus percentage of bonus for 61 months. legal representation and the H’s petition reached the age of majority while H’s mo- The agreement provided for a review and did not comply with Section 2-1401 by fil- tion was pending. The Court entered an that it would not terminate without court ing his petition within two years of the order reducing his child support obliga- order. The agreement also provided for entry of the Judgment. The trial court de- tion on September 17, 2008, retroactive modification of the payments and re- nied the motion, and noting that the court to November 29, 2007 and terminating quired W to make reasonable efforts to be- specifically asked the W if she wanted to child support on June 1, 2008 given that come economically self-sufficient. H filed hire counsel or have time to respond at the all three children had reached the age of a petition to terminate the payments be- initial court appearance and W indicated majority.The trial court also found that H cause of the emancipation of children and that she wanted to proceed with the entry owed W $16,400 in past due child sup- his payment of college expenses, W’s re- of the agreed order. The Appellate Court port. The trial court ordered H to pay duction in living expenses, W’s ability to affirmed the trial court. $108.59 every week until the arrearage support herself as an attorney, and W’s was paid in full. An order of income with- oblgiation to support herself under the An agreed order is a consent order. It is holding would take effect and the Judg- agreement. H was employed during the not an adjudication of rights but a record ment provided that so long as H was marriage as an anesthesiologist and the of their private, contractual relationship. current in his obligation, the Department parties maintained a high standard of liv- Once a consent order is entered it cannot of Healthcare and Family Services (“De- ing. W stayed home and cared for the chil- be amended without the consent of each partment”) could not engage in collection dren. After the dissolution, W attempted party.There are two lines of cases relating activities. The Department pointed to Sec- to develop an immigration law practice. to the challenge of consent orders. One tion 505(d) of the IMDMA that provides For five years she maintained an office and line of cases allows vacating if there is a that “[A]ny new or existing support order worked approximately 2 days a week showing that the agreement resulted from ***shall be deemed to be a series of judg- while caring for the children. W’s practice fraudulent misrepresentation, coercion, ments against the person obligated to pay was never profitable. W also attempted to incompetence of one of the parties, gross support thereunder***Each such judg- make and sell jewelry. disparity in the parties’ bargaining posi- ment shall have the full force, effect and tions, newly-discovered evidence or void attributes of any other judgment of this The Supreme Court reversed the Appellate as contrary to public policy. The second State, including the ability to be enforced.” Court and affirmed the trial court as to the line of cases only requires a showing of The appellate court held that the record ruling on the modification of mainte- coercion, gross disparity in the parties’ provided no basis for the Department to nance, but affirmed the Appellate Court’s bargaining positions, or errors of law on refrain from its enforcement activities and ruling that the trial court could not make the record. The Appellate Court held that the Department did not unequivocally it non-modifiable unless the parties “both lines of cases oversimplify the in- agree to the modification of time to pay agreed. Further, the Supreme Court af- quiry.” The Appellate Court held that support nor did it agree to waive its right firmed the Appellate Court as to the re- modifying or vacating agreed orders can to collect the arrearage. Therefore, the ap- versal of the trial on the petition for only be accomplished if the standards ap- pellate court struck the paragraph of the contribution to fees. The MSA is construed plied to 2-1401 are met. order that restrained the Department from as any other contract and the intent of the engaging in enforcement activities. parties is determined by the language of W claimed she was not given adequate no- the agreement. The MSA failed to have a tice. W waived notice requirements by ac- In re Marriage of Blum, 235 Ill. 2d separate provision for the support of the quiescing to the hearing even though the 21, 919 N.E.2d 333 (2009) children, or the burden of proof on the re- court offered her additional time. Like- Trial court modified W’s periodic mainte- view.The terms of the MSA provide for re- wise, W was given an opportunity to ob- nance, set non-modifiable and nonre- habilitative maintenance for the W. Since tain an attorney and she waived it. Section viewable maintenance, and ruled W’s the parties agreed to the review, the H did June 2010 The Docket 27 not have the burden of proof to show a conversation; H appeared up to 10 times partial and the burden to overcome this substantial change in circumstances. before the judge in his criminal domestic presumption, by a preponderance of the battery case even though the judge did not evidence, resides with the moving party, The review is under the factors set forth in preside over the trial; and that H perceived who must present evidence of personal 504(a) and 510(a-5). The trial court did a familiar relationship between W and bias stemming from an extrajudicial not abuse its discretion in modifying the judge in the courtroom. After the eviden- source and evidence of prejudicial trial maintenance and followed the statutory tiary hearing, the W requested a directed court conduct. The trial court’s determi- factors in making its ruling. The trial finding which was granted because there nation will not be reversed unless it is court focused on W’s efforts to become was no evidence of prejudice. against the manifest weight of evidence. self-sufficient and found that she made Actual prejudice may not be necessary minimal efforts to do so. It is clear from the Prior to the birth of their children, both due to the existence of recusal or disqual- MSA that the maintenance was to be tem- parties were employed. After the birth of ification based upon Rule 63(C)(1) of the porary and rehabilitative. The initial pay- their Children, W worked part-time at Judicial Code. Rule 63(C)(1) provides a list ment included payments for the support times and was responsible for the care of of circumstances that require recusal of the minor children who are now eman- the children. H was employed as a direc- without showing actual prejudice. The cipated. The trial court considered all of tor of communications for the Academy standard is whether an objective, reason- of Pediatrics making about $132,000. W these factors including W’s minimal ef- able person would question the judge’s was employed in two part-time jobs mak- forts to obtain employment in modifying ability to rule impartially. the award. ing about $22,500 per year. In this case, H failed to prove actual preju- The jobs gave W flexibility to be available In re Marriage of O’Brien, 393 Ill. dice. Ex parte communications consisting to care for the children. The trial court or- App. 3d 364, 912 N.E.2d 729 (2nd of brief greetings were too trivial to estab- dered reviewable maintenance in the Dist. 2009) lish prejudice. Judge disclosed information amount $1,000 per month for 36 Judgment for dissolution entered on and was not required to disclose the infor- months. The trial court imposed an affir- 11/1/06. H appeals award of mainte- mation on the court record. Further, the mative obligation on W to seek and main- nance and denial of motion for substitu- judge’s ruling in the domestic battery case tain employment commensurate with her tion. H and W married on 5/24/92 and is not a valid basis to claim bias or impar- training and education. had two children born in 1992 and 1999. tiality. In November 2003, H was charged with Appellate Practice domestic battery and Judge Waldeck Maintenance H failed to raise the issue of the motion to presided over the domestic violence court- A maintenance award will not be dis- substitute judges in the notice of appeal. room at the time. H filed his petition for turbed absent an abuse of discretion. H The Second District varies from the First dissolution in 11/03. There were multiple failed to show an abuse of discretion. The District on this issue. The Second District pre-decree orders. The case was reas- trial court properly considered the 504 has held that generally the appellate court signed to Judge Waldeck who was no factors in awarding maintenance. H failed has no jurisdiction to hear matters not in- longer in domestic violence court. At the to cite any authority to support the propo- cluded in the notice to appeal, but a mo- initial appearance before Judge Waldeck, sition that W’s failure to seek employment tion for substitution of judges improperly he advised the parties that they had been commensurate to her education prior to denied results in all subsequent orders before him in domestic violence court. the trial was a bar to her claim. H asserts being void. Such an order is part of the Both parties indicated that they had no that W unnecessarily forced him to ex- procedural progression leading up to the objection. pend significant amounts of money to de- order specified in the notice of appeal. fend baseless charges in the dissolution Therefore, the failure to reference the de- Subsequently,an emergency order of pro- proceedings and that, therefore, she tection was entered against H and later nial of the motion for substitution of judge in the notice of appeal did not result should be disqualified from obtaining denied. Thereafter, H filed a motion for maintenance. The optimal goal of main- substitution of judge for cause alleging in a loss of jurisdiction by the appellate court. tenance is to create financial independ- that the judge was biased against him, ence for the dependent spouse. It is not had presided over the prior domestic vio- Motion for Substitution meant to serve as a tool for punishment. lence proceedings, was a member of the H asserts that the ex parte communica- Nor did H show that W’s actions were same health club as W, and had engaged tions between W and the judge gave the baseless. in friendly, familiar interactions with W appearance of impropriety and also as- inside and outside the courtroom. Further serts bias based on judge’s knowledge In re Marriage of Sanfratello, 393 alleged that the judge was biased against from prior domestic battery charges. Ill. App. 3d 641, 913 N.E. 2d 1077, H’s attorney. Evidence of prejudice was 332 Ill. Dec. 787 (1st Dist. 2009) W’s statement that on several occasions at The Appellate Court affirmed the trial The parties were married in 1989 and Lake Forest Health and Fitness parking lot court’s denial of the motion for substitu- had three children. H owned pizza restau- she said hello to the judge with no other tion. A trial judge is presumed to be im- rants, some acquired during their mar- 28 The Docket June 2010 riage. Throughout the proceedings, H trial court found H had dissipated assets terests were acquired during the marriage failed to comply with court orders, in- and awarded the amount of $266,946, and presumed to be marital. The busi- cluding paying the mortgage, which re- which was one-half of the amount, and nesses provided the means of support of sulted in foreclosure, but where his also awarded W attorney’s fees. the family and there was no credible evi- parents purchased the house at the sher- dence that such businesses should be con- The Appellate Court affirmed the child iff’s sale. (H’s parents had purchased the sidered outside the marital estate. support award. Section 501 sets the min- lot and paid for the construction of the imum amount of support and allows the W used an expert to value the pizza busi- home prior to the parties’ marriage, and court to set reasonable support where the nesses, but because of a mix-up in the H’s father had a $100,000 lien against amount of income cannot be determined. businesses’ names, the expert’s opinion the house. The parties took out home eq- The evidence showed that the tax returns for one of the businesses was not properly uity loans and made payment on the lien.) and salary drawn by H did not represent disclosed. The expert testified that there The H also failed to provide information his total income. There was evidence of were gaps between the gross receipts and regarding his income and the value of his substantial cash deposits and expendi- the reported income and that H’s failure assets. tures during the marriage in excess of the to disclose information hindered a proper reported income. The Court affirmed the valuation of the businesses. Because it The trial court imputed income to H and trial court’s findings that the H and his was H’s fault, he could not complain ordered child support in the amount of witnesses were not credible. H claimed about the circumstances he created. $3,446 plus the payment of parochial that he lost his interests in the pizza busi- school. The court found that two of the nesses and that the court’s finding that The Marriage Act does not require that a pizza businesses were marital, but could not the businesses were “quite valuable” was value be placed on each item of property. determine value because H failed to provide not a basis to divide the marital property. H claimed that the marital residence was documents. The court awarded the busi- H also contended that any interests in the his non-marital property. The trial court nesses to H and the marital residence val- pizza businesses were gifts from his par- found the house was a gift to the parties in ued at $320,000 to W.The trial court found ents. The trial court found that H at- contemplation of their marriage, but that H and his parents jointly and severally liable tempted to defraud W of her interests in even if it was contemplated only to be a to W for the value of the home. Further the the businesses. The marital business in- gift to H, H transmuted the property into a June 2010 The Docket 29 marital asset. The record supported that part of the marital estate. Foreclosure/Sheriff ’s Sale the property was transmuted. The parties The Appellate Court also ruled that W’s Allocation of Debt lived there throughout their marriage, appeal regarding the order in the foreclo- H claimed that the marital debt that could marital funds were used to pay the ex- sure case and sheriff’s sale was not timely. have been made a part of W’s bankruptcy penses and upkeep of the house, and Further, W failed to raise in her cross ap- home equity loans were taken out jointly. should not be shifted to him. The Court re- peal the issue relating to the assignment Therefore, there was no abuse of discre- jected this argument because H failed to of the businesses to H and, therefore, it tion. cite a relevant authority for the proposi- was barred. tion. Dissipation Parents as Third-Parties The party charged with the dissipation Fees H’s parents claimed that they were added bears the burden by establishing by clear During the case, the trial court continued only as third-party defendants in discov- and convincing evidence how the funds W’s petition for interim fees and H’s peti- were spent. H claimed that he spent tion to set final attorney’s fees and costs at ery under § 2-402 of the Code of Civil money on child support and legitimate trial. At the conclusion of the proofs in the Procedure, and not as substantive third- family expenses. H failed to show proof of case, the trial court entered an order re- party defendants. Therefore, the trial the expenses that he paid, but it was clear quiring the “appropriate motions” re- court had no authority to hold them H paid child support during the proceed- garding fees within 30 days. The trial jointly and severally liable. The record ings, which should not have been in- court stated that the court would review supported a finding that the H’s parents cluded in the dissipation, and it was not were added only as third-party defendants clear if the trial court excluded the child the petitions and determine if a hearing in discovery. There was no evidentiary support payments. Therefore, the Appel- was necessary.W filed a 503(j) request for finding of probable cause to add H’s par- late Court remanded on this issue. The fees and H filed no response. H’s failure to court rejected H’s claim that the use of the raise an objection supported the trial ents as third-party defendants. Because children’s funds was not dissipation based court’s ruling that H did not dispute the the parents were not properly added as on his argument that they were not part fees. Further, H did not request a hearing third-party defendants, the trial court had of the marital estate. There was insuffi- and, therefore, waived the opportunity to no authority to enter an order finding cient evidence that the accounts were not object. them jointly and severally liable. THANK YOU!

The following attorneys have accepted Pro Bono cases through Prairie State Legal Services in May 2010. Burr Anderson Mari-Jo Jacquette Wilfred Chan David Kerpel Diane Brazen Gordon Marjorie Sher Thomas Hood Perry Smith, Jr. To volunteer, please contact Susan Perlman at [email protected] or 847-662-6925.

Do you have a speaker idea or suggestion for our business meetings? We would love to hear from you! Just send a note to: Chris Boadt ([email protected]) 30 The Docket June 2010 Annual Real Estate Committee Seminar n Friday April 23, 35 members of tion for the seminar, a short drive north the LCBA Real Estate committee but far enough to enjoy the benefits of a Oattended the annual seminar held weekend away. Much of the group re- at the Grand Geneva Resort in Lake mained in Lake Geneva following the sem- Geneva Wisconsin, the largest attendance inar to enjoy the shopping, attractions, in four years! Several members of the and fine dining offered in the area. The committee presented topics at the seminar group enjoyed a fabulous meal at Kirsch’s including Ken Suskin of Suskin, Mena- Restaurant at the French Country Inn on chof & Associates, Ltd. on The Eviction Lake Como. Process; David Leibowitz of LakeLaw Bankruptcy Center with an Update on By The Real Estate Seminar has traveled for Foreclosure and Foreclosure Defense Is- four years now, with an increasing atten- sues; Karen Courtney, a commercial un- Carrie A. Lincoln & dance in the seminar and growing delight derwriting attorney with Attorneys’ Title Rebecca McNeill among those who attend. Plans are in the Guaranty Fund on The Use of Series LLCs Real Estate Committee Co-Chairs works for the 2011 seminar to another in Real Estate Transactions, Carey exciting location, be sure to watch for de- Schiever of Ralph, Schwab & Schiever, bers of the LCBA and students in the CLC tails in upcoming issues of The Docket, or Chartered discussed Commercial Leases; Paralegal Studies Program presented volunteer to present at the seminar to Leslie A. Klocek Pencak, Instructor at the along with their instructor, Leslie Klocek make sure you don’t miss the next trip. College of Lake County Paralegal Studies Pencak. Cathy Horwitz and Mona Our next monthly meeting will be Program on the Importance of Using Mustafa demonstrated their internet- Wednesday June 2nd at 5:30 p.m. at In- Technology in the Practice of Law, and search abilities and shared some tips on Laws in Gurnee. Please feel free to contact Steve Newland, of Newland, Newland, & legal research through the College of Lake us if you are interested in speaking at one Newland, with an overview of What County’s Law Library online. of our meetings or the next seminar; re- Every Real Estate Lawyer Needs to Know [email protected] or ac_Lin- About Bankruptcy. Two associate mem- The Grand Geneva was an excellent loca- [email protected]. June 2010 The Docket 31

April 22, 2010 Executive Board Meeting

Prior Minutes The Gridiron, after the payment MEMBERS PRESENT A motion was duly made, sec- of expenses, should show a profit onded, carried and it was re- of approximately$6,500. Bryan Winter Ex Officio solved that the minutes from the March 18, 2010 Board Meeting A Motion was made, seconded, Elizabeth Rochford and Executive Session Meeting carried and it was resolved that First Vice-President were approved. the Treasurer’s report was ap- Perry Smith proved. Second Vice-President New Members Family Law Seminar 2010 Kevin Kane A motion was duly made, sec- Treasurer Thomas Gurewitz, the Family onded, carried and it was re- Minutes Law Chairman, has requested Marjorie Sher solvedthat the Board approved that the Board approve a plan for Secretary By the new members to the Lake the 2011 seminar planned in Hon. Joanne Fratianni County Bar Association. The Marjorie Puerto Rico from February 17, Thomas Gurewitz Board, on behalf of the bar, wel- Sher, 2011 to February 21, 2011. It is Steve McCollum comes the following members: Secretary anticipated that at least 65 at- Chris Boadt Attorney Membership torneys will attend theseminar Executive Director to receive 8 hours of Continuing Laureen Anderson-Stepanek Michael Strauss Amy Gertler Legal Education. The Family Law Liaision from The Docket Planning Committee is investi- Joshua Jackson gating an appropriate venue to Ana Marcyan work together in the future. The hold the seminar, including but Brian Merfield purpose of this Agreement is to not limited to The Gran Melia in Christopher White provide the Foundation with Puerto Rico. Flights are cur- management expertise to oper- Student Membership rently available for $220 per Michele Lyons ate its programs and to compen- ticket, if one leaves mid-week satethe Association for the Leslie Neilan and returns mid-week, other- Sandra Sneyd management expertise and op- wise, it is anticipated that a erating expenses. It is proposed Treasurer’s Report flight, if purchased well in ad- that this Agreement would auto- vance, will range from $300 to As of March 13, 2010 the Lake matically renew each year un- $400 per ticket. A motion was County Bar Association is hold- less written notice of its made, seconded, carried and it ing $78,317.89 in its accounts, termination is provided by either was resolved that the Executive and currently has an active lia- party. A motion was duly made, Director and the Chairman are bility owed to the Lake County- seconded, carried and it was re- approved to make areasonable Bar Foundation of $29,938.03. solved that the Agreement, as deposit on a hotel in Puerto Rico amended, is to be submitted to Upon review of the Treasurer’s at a room rate of $239 per night Report, it should be noted the Foundation for consideration or less. The Executive Director and a subsequent ratification, thatthe Lake County Bar Associ- and Chairman will report back ation should be able to complete pending approval, by the Board to the board at a later date once of Trustees of the Foundation. the fiscal year within budget. they have more information on Currently, the Association has the venue for the seminar. Time Line for Amendments expenses of $291,706, with a to the Agenda total of expected expenses by Consideration of LCBA and The Executive Director has re- theend of May, 2010 to be LCBF Agreement quested that a policy be enacted $388,941, whereas the Trea- A proposed agreement was such that any Board member surer’s 2009-2010 budget al- drafted by the Second Vice Pres- would submit any item to be lowed forexpenses of $389,475. ident Perry Smith, and Treasurer added to the agenda by the Fri- Kevin Kane, to present to the- day before a Thursday Board The Family Law Seminar was a Lake County Bar Foundation. meeting, except for emergency- resounding success, and is due to The agreement sets forth a plan matters. It has also been sug- net approximately $7,000 to into which the Bar Associatio- gested that the Board should $8,000. nand the Bar Foundation will 32 The Docket June 2010 hold a more expansive meeting two to should contacteither Rick Lesser, Presi- sion about an advanced parenting pro- three times per year to handle any issues dent of the Foundation, Perry Smith, Sec- gram until June, 2010. which cannot be resolved within the time ond Vice President of the Lake County Bar allotted for the monthly lunch Board Association or the Lake County Bar Asso- Lawyer Referral Service - Chris has pro- meetings. The Board has approved this ciation by May 13, 2010. The President of posed to schedule a meeting with David policy. the Lake County Bar Foundation shall be Winer, Chair Person of the Law Referral invited to attend the May 20, 2010 Lake Service Committee, to discuss the struc- Consideration of Foundation Board County Bar Association Board meeting to ture and costs of the Law Referral Service. of Trustee Future Members discuss a slate of candidates to serve on The American Bar Association offers free Three members of the Board of Trustees the Board of Trustees of the Foundation. assistance where it will assessthe LRS of of the Lake County Bar Foundation have A Motion was duly made, seconded, car- the Lake County Bar Association and expiring terms at the end of May, 2010. ried, and it was resolved that the plan as issue a report as to restructuring, reorga- The bylaws of the Foundation dictate that outlined above shall be instituted. nizingand pricing of the program. A Mo- the Board of the Lake CountyBar Associ- tion was made to table this discussion to ation appoints the members of the Board New Programs May, 2010. of Trustees of the Lake County BarFoun- Advanced Traffic Programs - Steve McCol- lum has agreed to continue to work on a Program Coordinator dation. The Second Vice President, Perry plan for these programs. A Motion was Chris has suggested that the Bar Associa- Smith, has agreed to investigate whether made to table this discussion to June, tion create a new position of Program Co- the members with expiring terms desire to 2010. ordinator. The Program Coordinator will be re-appointed to the Board. He will also coordinate the logistics of monthly asso- contact the President of the Bar Founda- Advanced Parenting Programs - On May 12, ciation meetings and the production of tion to discuss any potential new mem- 2010 the Lake County Parenting Class The Docket, provide logistical support to bers to the Board of Trusteesof the Bar has been invited to present the Parenting the Association for activities and meet- Foundation. Furthermore, the Lake Class to the Family Law Committee. The ings, coordinate web content and provide County Bar Association and Foundation Committee will discuss and suggest back up support to the administrative as- shall solicit additional candidates for the changes or improvements to this pro- sistant/receptionist. The Board has re- Board of Trustees. Interested candidates gram. A Motion was made to table discus- quested that two individuals from the LAWYER REFERRAL SERVICE

Why should YOU join the LCBA Lawyer Referral Service? The LCBA Lawyer Referral Service (LRS) is a valuable member benefit as well as a public service. LRS pro- vides member attorneys with an opportunity to build business through client referrals. The service benefits the public by helping callers quickly find an attorney in the area of law in which they need help. The LRS is widely publicized and all LCBA members in good standing who carry the required malpractice insurance are eligible to join.

The LRS program is designed to assist persons who are able to pay normal attorney fees but whose ability to locate legal representation is frustrated by a lack of experience with the legal system, a lack of information about the type of services needed, or a fear of the potential costs of seeing a lawyer.

Available Referral Panels • Administrative • Criminal • Estate Planning, Wills, Property Damage • Appellate • Employment Trusts and Probate • Real Estate • Commercial • Environmental • Consumer • Family • Personal Injury /

Call the LCBA Office (847-244-3143) with questions or download the procedures and application from our website at www.lakebar.org. Start taking advantage of all the LRS has to offer! June 2010 The Docket 33

Board be involved in the hiring of this in- November 24, 2010 (Professionalism Foundation Gala dividual. A Motion was duly made, sec- CLE) onded, approved and it was resolved that December 10, 2010 - Holiday Open House the Bar Association would create a new January 26, 2011 - TBD February, 2011 - President’s Dinner position of Program Coordinator at a Special Events salary of $30,000.00 to $35,000.00 per May 27, 2010 - Civil Trial Golf Seminar year, and that two Board members would February 17-20, 2011 - Family Law assist Chris in obtaining the appropriate June 4, 2010 - Installation of Officer’s Travel Program person to hold this position. Dinner, Knollwood Country Club March, 2011 - Doctor/Lawyer Dinner Upcoming Events July 16, 2010 - Association Golf Outing, Spring Lunch Series Deerpath Country Club Board Meeting April 28, 2010 - John O’Brien, ISBA Pres- The next board meeting is scheduled for September, 2010 - Criminal Law Seminar ident - Liberty Bell Award for 2010 May 20, 2010 at12:00 p.m. at the Office May 26, 2010 - Member Picnic September 24, 2010 - Lawyers Assistance of the Lake County Bar Association. Training No Luncheons scheduled for Summer There being no additional business, a mo- November, 2010 - Wills, Trust and Pro- tion was duly made, seconded, carried September 22, 2010 - Business Meeting bate Seminar and itwas resolved that the meeting was October 27, 2010 - TBD November 19, 2010 - Lake County Bar adjourned to executive session. FOR YOUR WISCONSIN MATTERS

LCBA member? FREE pick-up & delivery! •Quick Copies Same Day •Mailing Services

(847) 244-2272 •Duplication Services •Internet Marketing 1534 Washington Street • Waukegan •Stationary/Business Cards •Promotional Items: (1 mile W of the LC courthouse) •Announcements Custom Pens, Mugs , Etc. www.JobsPM.com •Newsletters • E-mailed Files Accepted

Visit the LCBA Website: lakebar.org 34 The Docket June 2010 GrapevineThe

Achievements and other notables: The 19th Judicial Circuit gave this year’s Liberty Bell Awards to Doug Stiles, David Leibowitz, and to the Attorneys’ Title Guarantee Fund, Inc. The court pres- ents the Liberty Bell Awards annually to an individual and to an organization that have performed extraordinary service to the justice system and dedication to the furtherance of the administration of jus- tice. Daily Herald: http://www.daily herald.com/story/?id=369312 News-Sun: http://bit.ly/9iW1qy

Judge Jorge Ortiz was honored at the Men of Vision Awards Ceremony held re- cently at the College of Lake County. Men of Vision is a new organization at the col- lege dedicated to promoting and celebrat- ing the academic achievement, leadership, community service, character and success of its members.

State’s Attorney Michael Waller hon- ored three individuals, including attorney Liberty Bell Award Recipients Doug Stiles, Peter Birnbaum, Hank Shulruff, and David Leibowitz are con- Steve Scheller, at a luncheon held in gratulated by Chief Judge James Booras. recognition of National Crime Victims’ Rights Week. Mr. Scheller is the Chief of directors. The same article was also included in the magazine the State’s Attorney’s Office’s Felony Review Division. News-Sun: Chicago Lawyer. http://bit.ly/b1UFoQ Attorneys on the move: Hal Winer and his son David participated in Honor Flight Erin Cartwright recently moved her office to 5101 Washing- Chicago, which flies World War II veterans like Hal from their ton St., Suite 2 in Gurnee, and can be reached at (847) 748- homes to Washington D.C. to see various sites related to their 7577, fax (847) 855-8497. service to our country. (www.honorflightchicago.org). Robert Monahan recently relocated his office to 4229 Grove Outgoing LCBA President Scott Gibson was interviewed with Avenue in Gurnee, and can be reached at (847) 848-6165. other bar leaders for a featured article in the Annual Law Day Edition of the Daily Law Bulletin on May 1. The article analyzed Random Grapevine Fact of the Month: the difference in law practice between the city of Chicago and While an undergraduate, Waukegan attorney Peter Trobe was the collar counties, and featured a picture of the LCBA board of captain of the University of Illinois Fencing Team. June 2010 The Docket 35

SPONSORED BY: David J. Gordon Distinguished Managing Director- LCBA Investment Officer Wells Fargo Advisors, LLC CLE Series Deerfield, IL Bulletin Lovell’s Restaurant 915 South Waukegan Road, Lake Forest Board Wednesday, July 14, 2010 4:30-6:30 p.m. • 2 CLE hours BRAIN FOR HIRE Libertyville paralegal, award winning in- Individual with Disabilities: vestigator, researcher and writer serving all of Lake County. Contact Patricia Axel- Special Needs Trusts & Managed Care rod 775-412-5980. Whether caused by the natural result of aging, trauma or genetics, there is a grow- LAW OFFICES OF DAVID L. PINSEL, P.C. ing population whose quality of life can benefit from the knowledge of experts in the Tired of driving to Rolling Meadows to field. Part one of this in-depth presentation highlights specially legislated trusts that represent your divorce and paternity can provide extra funds and preserve assets, while still permitting the individual clients? Rolling Meadows law firm avail- with disabilities to qualify for needs-based entitlements such as SSI and Medicaid. able for referrals (or co-counsel relation- Part two provides an insider’s look at options to enhance the quality of life, from ship) in Rolling Meadows and Cook ongoing at-home monitoring and part-time support, to full institutional care and County. Contact David Pinsel at 847/818- Trust Departments that focus exclusively on clients with Special Needs. 8700 or David.Pinsel @DPLegal.com This event is the second of six, called The Distinguished CLE Series. The topics se- HOUSE FOR SALE lected for each event are designed to provide you with tools to help your clients, as For Sale: Contract or Cash: Beautiful large well as potentially grow your business. 3 story Victorian Home in Waukegan w/ high full dry basement: Adequate for mul- Dates for upcoming series offerings (watch for details): tiple office space; Lrg. rooms for reception area or law library; 12 ft. ceilings, fire- Wednesday, October 20 & Wednesday, November 17 place, all original woodwork including built china cabinet & sliding pocket doors, This event is finanically sponsored in part by co-speaker Carlos Chacon from RS Investments. No investment finished hard wood floors; plenty of park- specific products will be discussed. Wells Fargo Advisors is not a tax advisor or legal advisor. Wells Fargo Ad- visors make no warranties that any workshop or seminar qualifies for continuing education credits. Please ing. Zoned residential/commercial; Great check with your professional organization for qualification requirements. Wells Fargo Advisors, LLC is a reg- location, 3 blks. from courthouse. Needs istered broker-dealer and separate nonbank affiliate of Wells Fargo & Company. David Gordon is registered work outside but don’t judge this book by with the Illinois Department of Financial and Professional Regulation as a sponsor of continuing professional its cover! Owner is very eager to sell. Call education. State boards of accountancy have final authority on the acceptance of individual courses. Com- before it goes on the market. (224)636- plaints regarding sponsors may be addressed to the Illinois Department of Financial and Professional Regu- 2095 Mike lation, 320 West Washington Street, Springfield, IL 62786. The Views expressed by guest speakers do not necessarily reflect the opinion of the Lake County Bar Association, Wells Fargo Advisors or its affiliates. GURNEE OFFICE, GREENLEAF New building, ready for immediate occu- pant build-out. 100 SF to 1500 SFD suite REGISTRATION FORM for lease. Below market rate ($10.00 /sf) Wednesday, July 14 (4:30-6:30 p.m.) 847-529-8116. SEMINAR TUITION: LCBA Member ______$35 per person DOWNTOWN WAUKEGAN Across from Courthouse, 275-1800 Non-Member______$40 per person square feet. Janitorial provided. Well Name: ______ARDC#______maintained. Space available. 33 N. County & 325 Washington. Please call Firm: ______Address: ______Ron Pollack at (847) 482-0952. City: ______State:______Zip: ______OFFICE BUILDING FOR SALE Tel: ______Fax:______218 N County St, Waukegan. 2,457 sq ft masonry building. 13 Parking spaces. E-mail: ______City Garage across the street. Asking $299,000. Virtual Tour: www.tjproper- ties.com. (847)680-4740. PAYMENT METHOD: H Check Enclosed H Credit Card on File

DOWNTOWN WAUKEGAN H AmEx H Visa H MasterCard H Discover 222 N County St., New Construction. Card #______Exp. Date: ______2,700 sq ft. Divisible. Up to 7 offices. Fully furnished if required. 200 N ML King Ave, Signature:______Single Office. Shared conference and lunch room. Space available for Secretary. Basement Storage. For more information RETURN REGISTRATION FORM TO: please see www.tjproperties.com. Lake County Bar Association • 300 Grand Avenue • Waukegan, IL 60085 (847)680-4740. TEL (847) 244-3143 • FAX (847) 244-8259 36 The Docket June 2010

by Kathleen M. Ryan Vice-President, Lake County Bar Foundation Senator Durbin, I Have A Question ast month, Jennifer and Mara- bella along with classmates from LThe Jack Benny School in Waukegan traveled to Washington D.C. While there, they went on a whirl- wind tour of the Capitol, the National Monuments and museums and met with Senator Dick Durbin. Seizing the moment, Jennifer questioned the Sen- ator, with the assistance of her sign language interpreter about the closing of a school in Illinois that was provid- ing educational services for students with hearing impairments. This issue was of particular importance to Jen- nifer and her classmate, Marabella be- cause these young girls have hearing impairments Their trip also included a visit to Galludat University, the first college in the United States established for the hearing impaired. This was reported to be inspiring for the girls. Teachers noted that while the cherry blossoms were blooming in D.C., Jennifer and Marabella were blossoming in an environment that was conducive to their needs. This moment was made possible through a grant awarded to the girls by The Lake County Bar Foun- dation. This moment would not have been possible without the generous support of contributors to the Foundation and the teachers at Jack Benny School who first made foundation board members aware that without financial assistance, Jennifer and Marabella would not be making the trip. Thank you to everyone who made this very special moment a reality. The girls have promised to “pay it forward.” While the Foundation is celebrating its’ 50th year in existence, the organization has been somewhat dormant for most of that time. Now, much like the Blackhawks, the Foundation has come under new management and is going through a revitalization. Board Membersand volunteers. under the direc- tion of retired Judge Jane Waller, are busy planning the Foundation’s inaugural black tie ball which will be held on November 19th. Please mark your calendars for what proves to be a very special evening. This month, I am happy to report that the Foundation is the recipient of a $3000.00 Cy Pres award. Thank you to Phil Bock and Judge Mitchell Hoffman for working to make this possible. Recently, at my son’s graduation, one of the student speakers talked about the great joy he received, not from his many scholastic accomplishments, but from his volunteer work in the service of others. He suggested that all present do one kind deed everyday to help someone in need. He pro- posed that as a road map for the future of his fellow graduates. In this spirit, please consider contributing, in any way poaaible to the Foundation.Volunteers are always needed. The re- wards are many.

PRESORT STD US POSTAGE PAID GURNEE, IL PERMIT NO. 356

300 Grand Avenue, Suite A Waukegan, IL 60085 Highlights of LCBA Spring Events