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IDC Quarterlysecond Quarter 2005 IDC QuarterlySecond Quarter 2005 Second Quarter 2005 Volume 15, Number 2 ISSN-1094-9542 FEATURED ARTICLES Spring 2005 Spoliation of Evidence Revisited Page 11 Appellate Court of Illinois Affirms Application of Actual Innocence Rule in Legal Malpractice Action Page 43 Vacation of Voluntary Dismissal Orders Opens the Door IDC for Potential Abuse Page 60 MONOGRAPH The Class Action Fairness Act – What is it all About? The Illinois Association of Defense Trial Counsel Law, Equity, Justice 1 Illinois Association of IDC QUARTERLY EDITORIAL BOARD Defense Trial Counsel Rick Hammond, Editor-In-Chief WWW.IADTC.ORG Johnson & Bell, Ltd., Chicago PRESIDENT [email protected] STEPHEN J. HEINE Linda J. Hay, Executive Editor Heyl, Royster, Voelker & Allen, Peoria Alholm, Monahan, Klauke, Hay & Oldenburg, L.L.C., Chicago PRESIDENT-ELECT GLEN E. AMUNDSEN [email protected] O’Hagan, Smith & Amundsen, L.L.C., Chicago Joseph G. Feehan, Associate Editor Heyl, Royster, Voelker & Allen, Peoria 1ST VICE PRESIDENT STEVEN M. PUISZIS [email protected] Hinshaw & Culbertson, Chicago Kimberly A. Ross, Assistant Editor 2ND VICE PRESIDENT JEFFREY S. HEBRANK Cremer, Kopon, Shaughnessy & Spina, Chicago Burroughs, Hepler, Broom, MacDonald, [email protected] Hebrank & True, Edwardsville Renee J. Mortimer, Assistant Editor SECRETARY/TREASURER GREGORY L. COCHRAN Hinshaw & Culbertson, Schererville, IN McKenna Storer, Chicago [email protected] DIRECTORS DAVID M. BENNETT Pretzel & Stouffer, Chtrd., Chicago COLUMNISTS TROY A. BOZARTH Edward J. Aucoin, Jr. John L. Morel Burroughs, Hepler, Broom, MacDonald, Hall, Prangle & Schoonveld, LLC, Chicago John L. Morel, P.C., Bloomington Hebrank & True, Edwardsville C. WM. BUSSE, JR. Beth A. Bauer Martin J. O’Hara Busse & Busse, P.C., Chicago Burroughs, Hepler, Broom, MacDonald, Quinlan & Carroll, Ltd., Chicago ANDREW D. CASSIDY Hebrank and True, Edwardsville David A. Perkins Cassidy & Mueller, Peoria JANELLE K. CHRISTENSEN James K. Borcia Heyl, Royster, Voelker & Allen, Peoria Tressler, Soderstrom, Maloney & Priess, Tressler, Soderstrom, Maloney & Priess, Chicago Robert T. Park Lincolnshire Michael C. Bruck Snyder, Park & Nelson, P.C., Rock Island DANIEL K. CRAY Iwan Cray Huber Horstman & Crisham & Kubes, Ltd., Chicago Michael J. Progar Van Ausdall, LLC, Chicago Brad A. Elward Doherty & Progar, LLC, Chicago RICK HAMMOND Heyl, Royster, Voelker & Allen, Peoria Michael L. Resis Johnson & Bell, Ltd., Chicago R. HOWARD JUMP Joseph G. Feehan O’Hagan, Smith & Amundsen, L.L.C., Chicago Jump and Associates, P.C., Chicago Heyl, Royster, Voelker & Allen, Peoria Kimberly A. Ross DAVID H. LEVITT Stacy Dolan Fulco Cremer, Kopon, Shaughnessy & Spina, LLC, Chicago Hinshaw & Culbertson, Chicago KEVIN J. LUTHER Cremer, Kopon, Shaughnessy & Spina, LLC, Chicago Peter R. Ryndak Heyl, Royster, Voelker & Allen, Rockford Rick Hammond Johnson & Bell, Ltd., Chicago JOHN P. LYNCH, JR. Johnson & Bell, Ltd., Chicago Tracy E. Stevenson Cremer, Kopon, Shaughnessy & Spina, Chicago Stephen J. Heine Chuhak & Tecson, P.C., Chicago MATTHEW J. MADDOX Heyl, Royster, Voelker & Allen, Peoria Willis R. Tribler Quinn, Johnston, Henderson & Pretorius, Kevin J. Luther Tribler Orpett & Meyer, P.C., Chicago Springfield FRED B. MOORE Heyl, Royster, Voelker & Allen, Rockford Lawrence, Moore & Ogar, Bloomington JOHN L. MOREL John L. Morel, P.C., Bloomington CONTRIBUTORS ANNE M. OLDENBURG Brian Y. Boyd John D. LaBarbera Alholm, Monahan, Klauke, Hay Williams Montgomery & John Ltd., Chicago O’Hagan, Smith & Amundsen, L.L.C., Chicago & Oldenburg, L.L.C., Chicago ROBERT T. PARK Sean G. Joyce Bradley C. Nahrstadt Snyder, Park & Nelson, P.C., Rock Island Williams Montgomery & John Ltd., Chicago Williams Montgomery & John Ltd., Chicago MICHAEL RESIS O’Hagen, Smith & Amundsen, Chicago Al Pranaitis KENNETH F. WERTS Craig & Craig, Mt. Vernon Hoagland, Fitzgerald, Smith & Pranaitis, Alton EXECUTIVE DIRECTOR Shirley A. Stevens PAST PRESIDENTS: Royce Glenn Rowe - James Baylor - Jack E. Horsley - John J. Schmidt -Thomas F. Bridgman - William J. Voelker, Jr. - Bert M. Thompson - John F. Skeffington - John G. THE ILLINOIS ASSOCIATION OF DEFENSE TRIAL COUNSEL Langhenry, Jr. - Lee W. Ensel - L. Bow Pritchett - John F. White - R. P.O. Box 7288 • Springfield, IL 62791 Lawrence Storms - John P. Ewart - Richard C. Valentine - Richard H. Hoffman - Ellis E. Fuqua - John E. Guy - Leo M. Tarpey - Wil- 800-232-0169 • 217-636-7960 • FAX 217-636-8812 lis R. Tribler - Alfred B. LaBarre - Patrick E. Maloney - Robert V. Dewey, Jr. - Lawrence R. Smith - R. Michael Henderson - Paul [email protected] L. Price - Stephen L. Corn - Rudolf G. Schade, Jr. - Lyndon C. Molzahn - Daniel R. Formeller - Gordon R. Broom - Clifford P. SHIRLEY A. STEVENS, Executive Director Mallon - Anthony J. Tunney - Douglas J. Pomatto - Jack T. Riley, Jr. - Peter W. Brandt - Charles H. Cole - Gregory C. Ray - Jennifer Jerit Johnson TONYA M. VOEPEL, Publications Manager The IDC Quarterly is the official publication of the Illinois Association of 9865 State Route 124 • P.O. Box 78 Defense Trial Counsel. It is published quarterly as a service to its members. Subscriptions for non-members are $75 per year. Single copies are $20 plus $2 Sherman, IL 62684 for postage and handling. Requests for subscriptions or back issues should be sent to the Illinois Association of Defense Trial Counsel headquarters in Spring- 217-566-2603 • FAX 217-566-2507 field, Illinois. Subscription price for members is included in membership dues. [email protected] In This Issue Lead Article Monograph M-1 The Class Action Fairness Act of 2005 – What is it all About? by Bradley C. Nahrstadt and Brian Y. Boyd Featured Articles 11 Spoliation of Evidence Revisited, by Bradley C. Nahrstadt and Sean G. Joyce 43 Appellate Court of Illinois Affirms Application of Actual Innocence Rule in Legal Malpractice Action Arising from Underlying Criminal Plea Agreement by John D. LaBarbera 60 Recent Opinion Regarding Voluntary Dismissal Orders Opens the Door for Potential Abuse, by Al Pranaitis Regular Columns 72 Alternative Dispute Resolution, by John L. Morel 74 Amicus Committee Report, by Michael L. Resis 67 Appellate Practice Corner, by Brad A. Elward 33 Case Note, by Robert T. Park 34 Civil Rights Update, by David A. Perkins 70 Commercial Law, by James K. Borcia 73 The Defense Philosophy, by Willis R. Tribler 6 Editor’s Note, by Rick Hammond 26 Employment Law Issues, by Kimberly A. Ross 38 Evidence and Practice Tips, by Joseph G. Feehan 7 IDC Candidates for Election 76 IDC New Members 19 Insurance Coverage, by Peter R. Ryndak 17 Legal Ethics, by Michael J. Progar 36 Medical Malpractice, Edward J. Aucoin, Jr. 4 President’s Message, by Stephen J. Heine 56 Professional Liability, by Martin J. O’Hara 65 Property Insurance, by Tracy E. Stevenson 48 Recent Decisions, by Stacy Dolan Fulco 54 Supreme Court Watch, by Beth A. Bauer 44 Technology Law, by Michael C. Bruck 15 Workers’ Compensation Report, by Kevin J. Luther Manuscript Policy Members and other readers are encouraged to submit manuscripts for possible publication in the IDC Quarterly, particularly articles of practical use to defense trial attorneys. Manuscripts must be in article form. A copy of the IDC Quarterly Manuscript Guidelines is available upon request from The Illinois Association of Defense Trial Counsel office in Springfield, Illinois. No compensation is made for articles published, and no article will be considered that has been submitted simultaneously to another publication or published by any other publication. All articles submitted may be subjected to editing and become the property of the IDC Quarterly, unless special arrangements are made. Statements or expression of opinions in this publication are those of the authors and not necessarily those of the Association or Editors. A copy of the IDC Quarterly Editorial Policy is available upon request. Letters to the Editor are encouraged and welcome, and should be sent to the Illinois Association of Defense Trial Counsel headquarters in Springfield. Editors reserve the right to publish and edit all such letters received and to reply to them. IDC Quarterly, Second Quarter, 2005, Volume 15, No. 2. Copyright © 2005 The Illinois Association of Defense Trial Counsel. All rights reserved. Reproduction in whole or in part without permission is prohibited. POSTMASTER: Send change of address notices to IDC Quarterly, The Illinois Association of Defense Trial Counsel, P.O. Box 7288, Springfield, IL 62791. Second-Class postage paid at Springfield, IL and additional mailing offices. This publication was printed by Gooch & Associates, Springfield, Illinois. IDC Quarterly against him in a civil case, to the members of the executive and legislative branches of state and federal governments who seek to decide particular cases and controversies in private President’s Message matters and disregard the established judicial process, the courts are under siege. Let us all remember that we are officers of the court. We are an important part of the judicial process By: Stephen J. Heine that makes our country different from the rest of the world. Heyl, Royster, Voelker & Allen We are a part of the rule of law. We are not fixers, greasers or Peoria political partisans. We are lawyers who represent our clients but owe our first allegiance to the judicial branch. If you are in doubt as to the extent of this duty, take time to review the IDC Business Rules of Professional Conduct. Lawyers must make reason- The 2005 Spring Defense Tactics able efforts to expedite litigation
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