Illinois Bar June 2014 Journal Vol

Illinois Bar June 2014 Journal Vol. 102, No. 6 ■ www.isba.org/ibj The Magazine of Illinois Lawyers

Building Your Case with Social Media Evidence

Page 276

280 Pretrial Motions 284 Speedy Trials

Med-Mal and 288 Contributory Negligence

MORE TO COME. Be sure to check at www.isba.org for up-to-date offerings

SPRING 2014 LawEd Schedule

WEBINAR LAKE GENEVA, WI JUNE TUESDAY, 6/10/14 FRIDAY, 6/20/14 Advanced Tips to Fastcase Legal Caregiver Storm: Building TELESEMINAR Research Customer Loyality by Helping TUESDAY, 6/3/14 *This program is complimentary to ISBA Members Clients in Crisis Family Feuds in Trusts SPRINGFIELD Reel MCLE Series 2014: How Many TELESEMINAR THURSDAY, 6/12/14 Ethical Dilemmas Can You Spot? WEDNESDAY, 6/4/14 Lessons in Professional 2014 Ethics in Litigation Update, Responsibility: From the Illinois Effective Presentations Part 1 Law Practice of Abraham Lincoln Tech Talks: Using Technology to TELESEMINAR TELESEMINAR Improve Your Presentation and THURSDAY, 6/5/14 FRIDAY, 6/13/14 Engage Your Audience 2014 Ethics in Litigations Update, Planning for Estates Under Part 2 $10 Million TELESEMINAR TUESDAY, 6/24/14 LOMBARD TELESEMINAR Sales Agreements: THURSDAY, 6/5/14 MONDAY, 6/16/14 UCC Article 2 and Real Estate Transactions - Successor Liability in Business Practical Considerations Beyond the Ordinary and Mundane Transactions: The Risk of Selling and Interactive Ethics and Assets But Retaining Liability TELESEMINAR Professionalism Panel Discussions WEDNESDAY, 6/25/14 WEBINAR Buying and Selling Commercial CHICAGO MONDAY, 6/16/14 Real Estate, Part 1 FRIDAY, 6/6/14 Fastcase Boolean (Keyword) for Lawyers Successful Transactions - What *This program is complimentary to ISBA Members TELESEMINAR In-House Counsel Expect from their THURSDAY, 6/26/14 M & A and Antitrust Attorneys LIVE WEBCAST Buying and Selling Commercial TUESDAY, 6/17/14 Real Estate, Part 2 LIVE WEBCAST Handling Employment Cases at FRIDAY, 6/6/14 the Illinois Department of TELESEMINAR The Do’s & Don’ts of the BAIID Employment Security FRIDAY, 6/27/14 Machine Attorney Ethics and Disputes TELESEMINAR with Clients WEBINAR TUESDAY, 6/17/14 FRIDAY, 6/6/14 2014 Estate and Trust Planning COLLINSVILLE Introduction to Fastcase Legal Research Update, Part 1 FRIDAY, 6/27/14 *This program is complimentary to ISBA Members Tips of the Trade: TELESEMINAR Federal Civil Practice Seminar TELESEMINAR WEDNESDAY, 6/18/14 for Downstate Illinois TUESDAY, 6/10/14 2014 Estate and Trust Planning The Perils of Using “Units” in Update, Part 2 LLC Planning

For More Information and Registration: Phone: 217-525-1760 or 800-252-8908 • Online: www.isba.org/lawed Members save $10 when you register online, at least 3 days in advance.

VOL. 102 | june 2014 | illinois Bar Journal | 259 McNabola ISBA ad.pdf 1 12/9/13 12:56 PM

CMY

Competitive fees for referring attorneys

One of the top trial records in Illinois

Success rate of almost 98% of cases at trial

Record high verdicts and settlements in Cook, DuPage and Will Counties

Over $550 million in verdicts and settlements on behalf of our clients

55 West Wacker Drive, Ninth Floor Chicago, Illinois 60601 312.629.2900 www.McnabolaLaw.com PERSONAL INJURY • TRUCKING NEGLIGENCE • MEDICAL MALPRACTICE • PRODUCT LIABILITY • AVIATION LAW McNabola ISBA ad.pdf 1 12/9/13 12:56 PM

cover story | 276 Illinois Bar June 2014

JournalVolume 102 ■ Number 6 ■ Pages 257-304 The Magazine of Illinois Lawyers www.isba.org/ibj Practice News 266 lawpulse Condo unit owners can’t withhold payment; unionized college football; automatic expungement of juvenile records; an end to automatic transfers from juvenile court? columns 272 illinois law update Waiver of personal jurisdiction by appearance does not apply 262 comments retroactively; changes to public employee benefits; new standards Is there a reasonable expectation for digital availability of public data; and more. of privacy in public conversations? PI economics: bond yields and the articleS interest rate. 276 E V IDENCE /SOCIAL MEDIA | By Ed Finkel 264 president’s page Building Your Case with Social Media Evidence By Paula H. Holderman Can you get the other side’s damaging Facebook posts into The Year in Review evidence? How do you make sure they don’t vanish? Here’s a C A look at the projects, programs, look at emerging principles and best practices. M and many accomplishments that made up the 2013-14 bar year. Y CM 280 CI V IL PRACTICE | By Jennifer Sanders MY Pretrial Motions – Are You Getting Them Right? best of discussions CY 298 Recent appellate opinions and orders show that too many attorneys improperly label and file motions to dismiss and for CMY Substitute Service of Process – Like Father, summary judgment at the trial level. Here’s how to get it right. K Like Son? Is service of process valid if it’s Competitive fees for referring attorneys on the defendant’s father, in the CRIMINAL LAW | By Jill Ausdenmoore defendant’s driveway? 284 A Practitioner’s Guide to Illinois’ Speedy-Trial Statute One of the top trial records in Illinois Find out what the cases say about how to calculate a defendant’s speedy-trial period.

Success rate of almost 98% of cases at trial 300 Loss prevention By Karen Erger Record high verdicts and settlements in Cook, DuPage and Will Counties The Appearance of Professionalism 288 tort law | By Robert P. Vogt Over $550 million in verdicts and settlements on behalf of our clients Aren’t women lawyers competent Blaming the Patient: Medical Malpractice and to make their own judgments about Contributory Negligence what to wear to work? What constitutes contributory negligence in the med-mal context? This article explains the basics.

294 CREDITORS ’ RIG H TS | By Andrew N. Plasz Luxury Tax: Collecting from High-Income 259 cle calendar Judgment Debtors Ethics in litigation update, The author argues that wages used for investments or to purchase estate planning update, luxuries should be subject to collection by a judgment creditor. and more. 55 West Wacker Drive, Ninth Floor Chicago, Illinois 60601 312.629.2900 www.McnabolaLaw.com

PERSONAL INJURY • TRUCKING NEGLIGENCE • MEDICAL MALPRACTICE • PRODUCT LIABILITY • AVIATION LAW VOL. 102 | june 2014 | illinois Bar Journal | 261 Illinois Bar comments Journal A publication of the

Offices Illinois Bar Center 424 S. 2nd St. Springfield, Ill. 62701 Phones (217) 525-1760 or 800-252-8908 Chicago Regional Office 20 S. Clark Street, Suite 900 Chicago, Ill. 60603 Phones (312) 726-8775 or (800) 678-4009 Is there a reasonable PI economics: bond yields and www.isba.org expectation of privacy in public the interest rate Staff and contributors Managing Editor conversations? I disagree with Mr. Gilbert’s unex- Mark S. Mathewson [email protected] As the attorney for DeForest Clark pressed assumptions regarding bond Assistant Editor [in People v. Clark, one of the cases in yields as expressing the rate of inflation. Timothy A. slating which the supreme court overturned Il- (See Scott Gilbert, Choosing an Econo- [email protected] Administrative Assistant linois’ eavesdropping statute], I can per- mist for Your Personal Injury Case, May jean fenski ceive great difficulties if the legislature 2014 IBJ.) [email protected] attempts to prohibit the recording of any Mr. Gilbert states: “The disagreement Advertising Coordinator nancy vonnahmen speech where there is no reasonable ex- about discount rates may seem more [email protected] pectation of privacy. (See What next for surprising. Discount rates are simply in- Art Director Illinois eavesdropping law? May 2014 terest rates – yields – for various gov- Ticara turley LawPulse.) If a conversation takes place ––––––– ernment bonds/bills/notes at the time of Isba Officers in a public place, there may not be a re- trial. These yields are public information. paula h. holderman quirement that any party’s consent is re- But yields on short-term and long-term President, Chicago quired, unless one can establish that it richard D. felice bonds can vary significantly, with a one- President-Elect, Wheaton was reasonable to expect that such a con- year bond typically having a yield lower Umberto S. davi versation would be private – a difficult than a 30-year bond.” Second Vice-President, Western Springs proposition. vincent f. cornelius This is premised upon (1) the im- Third Vice-President, Wheaton With the ubiquitous use of cameras plicit assumption that there is absolutely ––––––– in virtually every corner of society, can ZERO risk of default on US Government ROBERT E. CRAGHEAD microphones be far behind? Thus, it will Executive Director obligations; and (2) that the long term ––––––– soon no longer be “reasonable” to ex- yields (and henceforth rates of inflation/ Editorial Board pect that what is exposed in public can or deflation of buying power per nomi- Editor-in-Chief be required to remain private as such. gary r. gehlbach, Dixon nal unit of currency) will remain predict- Associate Editor Any speech which is capable of being MARIA N. BERGER, Byron overheard in a store, library, street or Secretary other facility where the public is free to Readers are invited to send comments to MARK E. ZUMDAHL, Sterling [email protected] or, better yet, to append ––––––– enter, will subject the speaker to being comments to articles at www.isba.org/ibj. We ALISA B. ARNOFF, Chicago overheard if he/she makes an utterance. reserve the right to edit for length, grammar, and Kerry J. Bryson, Ottawa Donald Ramsell, Wheaton style. heather m. fritsch, Sycamore Ava M. George StEwart, Chicago timothy a. gutknecht, Columbia JAMES W. HILLIARD, Chicago Illinois Bar travis j. ketterman, Geneva THEODORE R. LEBLANG, Springfield George f. mahoney, Joliet Legal research provided by Westlaw. VesnA marusic, Chicago Journal Pamela S. Menaker, Wilmette nathaniel a. nieman, Moline Robert T. Park, Moline On the web at www.isba.org/ibj willis r. tribler, Chicago Peter s. trotter, Bloomington The Illinois Bar Journal (ISSN0019-1876) is published monthly 12 times per year, by the Illinois State Bar Association, 424 Andrew w. vail, Chicago S. 2nd St., Springfield, IL 62701-1779, for distribution to its members. Subscription rates: $11.16 for members (included in membership dues); $50 for libraries (not including law firm libraries); $60 for non-lawyers and non-residents. Price per Board OF GOVERNORS copy, $4 members; $6 non-members. Periodicals postage paid at Springfield, IL and additional mailing office. Charles Y. Davis, Springfield; Bridget C. Duignan, Chicago; Be an IBJ author. Members are encouraged to submit practice-oriented articles to the Illinois Bar Journal. Write for Albert E. Durkin, Chicago; Karen A. Enright, Chicago; Keith manuscript guidelines, or view our guidesheet online at http://www.isba.org/IBJ/manuscriptguide. E. Fruehling, Urbana; Hon. Celia G. Gamrath, Chicago; Disclaimer: Statements or expressions of opinion appearing herein are those of the authors and not necessarily those of Carey C. Gill, Carbondale; Jennifer W. Hammer, Springfield; the Association or Editors, and likewise the publication of any advertisement is not to be construed as an endorsement of Christopher T. Hurley, Chicago; Kenya A. Jenkins-Wright, the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement. Articles Chicago; Jean A. Kenol, Joliet; Stephen M. Komie, Chicago; are prepared as an educational service to members of ISBA. They should not be relied upon as a substitute for individual James F. McCluskey, Lisle; John L. Nisivaco, Chicago; Lisa legal research. M. Nyuli, South Elgin; Hon. Jessica A. O’Brien, Chicago; Hon. Elizabeth M. Rochford, Waukegan; Russell K. Scott, Belleville; Postmaster: Please send address changes to the Illinois Bar Journal, 424 S. 2nd St., Springfield, IL 62701-1779. Frank A. Sommario, Chicago; David B. Sosin, Orland Park; Copyright 2014 Illinois State Bar Association Angelica W. Wawrzynek, Mattoon; Sonni C. Williams, Peoria; Immediate Past President—John E. Thies, Urbana

262 | illinois Bar Journal | june 2014 | VOL. 102 able and constant. As we have recently fault” (quoted text is from the reader’s by using a short-term yield when dis- seen due to government shut downs and comment). counting (all) future losses. It seems the reevaluation of the US government You also remark that I do not ex- that your foundation for this point is bond ratings, these assumptions may be plain differences between short-term and more about fairness in the sense of law (you use some pretty strong language...) flawed. long-term Treasury yields: that’s right, as He does not discuss the fact that these rather than some economic notion of I didn’t need a theory for that to get the risks are in part the reason for the differ- fairness. For this reason I (an economist, intended points across. ing yields between short-term versus long and not a legal scholar) can say little ex- term obligations. When an expert or jury Your final point is (I think) that risk cept that in the field of economics I can uses the long term yields (higher percent- concerning future inflation and bond find no way to convert your point into a age rates equaling more substantial dis- default can only be fairly controlled supportable (economic) statement. counts in the present value of the judgment) they force these risks upon the defendant’s victims requiring them and not the defendant to bear the risk of these losses. This is both contrary to the law in Illinois and fair play and common sense. The plaintiff is already injured by the defendant. The plaintiff has suffered their losses at the time of the injury although they are not compensated for these losses until after a judgment is entered and they are not compensated for the time value and opportunity losses that occur prior to the judgment (i.e., prejudgment interest on the award). The logic behind requiring “present value” of Get unlimited online access to the damages is to ensure that the plaintiff re- ® ceives the funds in present value for the complete IICLE library of publications. losses that he will incur in the future. When one takes the position asserted by Mr. Gilbert, they reduce the damages paid by the tortfeasor while forcing the plaintiff to take on the risks of default Online Publications Editable Forms and changing rates of inflation. Nowhere in the law of Illinois is it stated that the Quick Connect* Option for 10+ Licenses defendants should be able to benefit while shifting these risks onto their victims. In fact there is no logical reason that someone could argue that this is either • Over 110 titles • Searchable by key fair or just compensation to victims to require them to bear the burden (in terms • Includes thousands term or browse by title of a lower present value) of these risks. of editable forms • Save “favorite” searches Mark Rouleau, Rockford and sample language • 24/7 access THE AUTHOR RESPONDS: I ap- provisions preciate your timely comments on my recently published article! In economics disagreement is par for the course, and also a necessary part of the evolution of ideas. ONLY $50 PER MONTH In terms of your first comment, the quoted text from the article does not www.iicle.com/info refer to inflation, not can I discern from the text any unexpressed assumptions about inflation. Without something *Are there 10 or more attorneys in your firm or organization? more to go on, I’m unable to offer much Our Quick Connect subscription option provides unlimited IICLE® Online Library access for a flat annual fee of $6000 for private practitioners or $3000 for government and pro bono organizations. by way of response. Too, the text says Contact IICLE® at 800-252-8062 for more information. that government bonds exist, with various yields, but this does not rely on an implicit assumption of “zero risk of de-

VOL. 102 | june 2014 | illinois Bar Journal | 263 president’s page By Paula H. Holderman

The Year in Review A look at the projects, programs, and other accomplishments that made up the 2013-14 bar year.

year ago, I wrote my first They created a new microsite within the hugely successful “30 Female Black- president’s column and the ISBA website devoted to young law- stones” program commemorating the outlined my plans for the yers. Together with YLD, they held a re- 120th anniversary of the first national coming ISBA year. Sud- verse mentoring event pairing younger meeting of women lawyers at the 1893 denly, the future is now. lawyers with senior lawyers to learn Columbian World Exposition in Chicago. TheA focus of my year boiled down to technology. In May, they organized a At the ISBA Midyear Meeting in De- membership and ensuring ISBA’s rele- networking event based on the “speed cember, we held a sold out diversity re- vancy to the profession. dating” concept where law students cir- ception featuring a gigantic group photo We started in March 2013 with Board culated through “dates” with strategic planning and then followed more senior ISBA members. through from many angles, all toward Speed networking was fol- the ultimate goal of increasing mem- lowed by an old-fashioned re- ur targeted marketing bership in the ISBA. We concentrated ception with members of the on new attorneys, small firm and solo Board of Governors in the O efforts showcased the practitioners, and women and minority new member-friendly space at tangible value of our “big three” lawyers. Allow me to recap some of the the Chicago office. progress we made this year. The YLD stayed very busy benefits: free CLE, free Fastcase, First, not only did we stem the small with their annual events, in- but steady decline in membership over cluding A Day at the Races and free E-Clips. the last decade, we actually saw our (which sported many young membership grow by 500! A number families this year), the Cubby of factors sparked this remarkable turn- Bear Holiday Party, the Bean around, including our bold move to offer Bag Tournament, and the Spring Soiree. reflecting the diversity of our member- free online CLE to members and our tar- In addition to these fun and fund-raising ship. The following day at the Assembly geted marketing efforts showcasing the events, YLD also presented a professional Meeting, we reported on the ISBA “di- tangible value of our “big three” benefits: development series of practical programs. versity scorecard” which saw increases in free CLE, free Fastcase, and free E-Clips. I, along with YLD members, also at- the diversity of our officers (most diverse Second, we could not have embarked tended area law school events to spread in our history), Board of Governors, As- on this offering without the sponsor- the word about ISBA benefits to new sembly, and overall membership. ship of the ISBA Mutual Insurance Com- lawyers. A special thanks to YLD Chair In March, the Chicago Daily Law pany. I can’t say enough about our true Jean Kenol for his leadership. Bulletin published my article on early partnership this year. Last year the ISBA Fourth, I concentrated on promoting women legal pioneers for National made thoughtful but significant budget the ISBA to women and minority lawyers Women’s History Month. We followed reductions to accommodate the revenue as well as promoting the many women that with two spectacular events in decline expected from moving to free and minority lawyers in our organiza- Chicago and DeKalb. The Celebrating CLE. With the Mutual sponsorship and tion. I was not alone in this endeavor, Women in the Profession luncheon at diligent adherence to the budget, I can and I thank the standing committees on the Union League Club featured nation- proudly report that the ISBA is currently Women and the Law and Racial and ally recognized Prof. Joan Williams of operating in the black. Ethnic Minorities and the Law, and the UC Hastings College of Law discussing Third, after learning that young peo- Diversity Leadership Council. her book What Works for Women at ple, including young lawyers, are no lon- We started the summer with two Law Work to a buzzing crowd of more than ger joining organizations in the same and Leadership Institute programs in 200 women and men. Several bars co- numbers as did prior generations, we Carbondale and Chicago. The LLI pro- sponsored with us. established a New Lawyer Task Force vided legal immersion programs for di- Just a week later, the ISBA Women chaired by Marron Mahoney and Brian verse high school students and was en- and the Law and Racial and Ethnic Mi- Monico. Their earliest report noted the tirely funded through the ISBA and its norities and the Law Standing Commit- need for better communication about al- members and groups. tees gathered a star-studded panel of ready existing ISBA programs and ben- In August, the ISBA partnered with women justices and lawyers to discuss efits to law students and newer lawyers. the 7th Circuit Bar Association to hold their personal journey overcoming ob-

264 | illinois Bar Journal | june 2014 | VOL. 102 stacles to leadership. Many NIU law stu- and federal budget cuts effecting our cuit Chief Judge Diane Wood for their dents – our future members – were on courts, national proposed change in ac- unflagging support of anything I asked hand for a moving Myra Bradwell re- counting methods affecting law firms, them to do. enactment and the luminous panel dis- increased funding for Legal Services Cor- Last, I appointed two governance cussion. Kudos to WTL chair Mary Pe- poration, judicial retention streamlining, committees, one from the Board and truchius and both standing committees. and changes to Illinois Supreme Court one from the Assembly, to challenge our I was graciously invited to numerous rules to provide more efficient and cost notions of the status quo of the ISBA ethnic and gender bar association events, effective e-discovery. governing bodies. Does having a 204 which I attended and often spoke at, in- The ISBA produced more than two- member Assembly, a 27 member Board cluding the Korean American Bar, the dozen “Two Minutes with the President” of Governors, and three vice-presidents Indian American Bar, the Cook County videos, providing important information serve the best interests of our association Bar, the Black Women Lawyers, the CBA to ISBA members about people, commu- in 2014? Do those large numbers allow Alliance for Women, the WBAI, the Du- nity events, and changes in the law. We us to respond to issues in a nimble fash- Page Association of Women Lawyers, also produced a significant cable TV pro- ion? Does the cost of supporting that and the Lake County Women’s Bar. gram on the rule of law featuring ABA structure use our member dues to best Fifth, we began the process of re- and ISBA presidents as well as nationally advantage? We may not have the ulti- aligning our staff structure for maxi- recognized judges. mate answers to those questions, but it’s mum efficiency and membership ben- Seventh, we partnered with other essential to the ongoing relevancy of our efit. We interviewed staff, staff officers, bar entities, including the CBA, Illinois organization that we continue to chal- board members, ISBA officers, and other Judges Association, 7th Circuit Bar, Illi- members to learn what services matter nois Bar Foundation, and the ABA, on lenge ourselves, ask tough questions, and most and how we can best deliver those CLE programs, bar activities, and social adapt to evolving conditions. services within our budget. We learned events to benefit lawyers in our state. I With that recap, I take my leave as some new perspectives and we con- was personally gratified to work with ISBA President. It has been an incredible firmed some traditional values. many bar leaders and dignitaries, includ- year, and I thank all of you for allow- As part of that process, we conducted ing dear friends like Tim Eaton, Justice ing me this opportunity to take a lot and a communication survey to learn the Mary Schostock, Judge Deb Walker, Bob give back a little. Special thanks to my current ways members receive informa- Clifford, and Julie Bauer. husband (a/k/a “the Empress’s driver”), tion. We also embarked on a satisfaction And I can’t write my last column Judge Jim Holderman, for his amaz- and compensation survey to see how our without thanking the entire Illinois Su- ing support throughout this adventure. members are faring at work and in life. preme Court for their support of lawyers I send my very best wishes for success We last did this type of survey in 2005, in Illinois. Particularly, in this “year of to incoming ISBA President Rick Felice so it seemed timely to take a current the woman,” I need to thank Chief Jus- and his fellow vice-presidents Umberto snapshot of our membership. tice Rita Garman, Justice Anne Burke, Davi, Vince Cornelius, and Russ Harti- Sixth, the ISBA was active on the ad- Justice Mary Jane Theis, and 7th Cir- gan. Enjoy the ride, guys. ■ vocacy front. We wrote letters to the editor, lobbied legislatures, and testified at hearings on many issues affecting Il- linois lawyers, including the unauthor- ized practice of law, the rewrite of the Il- linois family law statutes, sequestration Rubin & Norris, LLC PROPERTY TAX LAW To better serve commercial, industrial, and large residential Every Article Is property tax payers throughout central and southern Illinois in all the Start of a Discussion real property tax assessment matters, Rubin & Norris is pleased to announce the opening of its new office in Springfield, Illinois. If you’re an ISBA member, The office will be led by James W. Chipman, former Legal Counsel you can comment on articles and Executive Director of the Illinois Property Tax Appeal Board. in the online version of the Illinois Bar Journal. The Law Offices of Rubin & Norris, LLC Visit www.isba.org/ibj 1100 S. Fifth Street, Springfield, IL 62703 (217) 391-6858 205 W. Wacker Drive, Suite 705, Chicago, IL 60606 (312) 263-1360 to access the archives. www.propertytaxattorneys.com

VOL. 102 | june 2014 | illinois Bar Journal | 265 lawpulse | By Janan Hanna

Condo unit owners can’t withhold payment Condo unit owners may not withhold assessments even if the condo association fails to make repairs and perform maintenance, a divided Illinois Supreme Court rules.

he owner of a condo unit lar defense to forcible entry and detainer “An owner may still file a breach of fi- may not withhold monthly actions, Anaya said. duciary duty claim against the board of assessments and other ex- The Illinois Condominium Act and directors, seeking damages and a manda- penses in response to an al- associations’ individual bylaws require tory injunction,” he said. leged failure by her condo- unit owners to pay monthly assessments, The owner may not, however, file a miniumT association to maintain common special assessments, and fees and autho- counterclaim or nullification action in elements and make repairs, a divided Illi- rize associations to take action to possess response to a forcible entry and detainer nois Supreme Court ruled recently. the unit of the defaulting owner. Also, action by the association seeking posses- In a four to three decision, the ma- the Illinois forcible entry statute, 735 sion of the unit for unpaid assessments. jority of the justices rejected a theory ILCS 5/9-106, allows an association (or that condo unit owners should have the a landlord) to take possession of a unit if Dissent: an ‘expensive and same rights as tenants in a leasehold its owner has fallen behind on payments. time-consuming burden’ for agreement. The issue arose when a Lake The majority of the justices in the 4-3 unit owners County resident/owner of the Spanish ruling said a landlord/tenant scenario Part of the controversy that gave rise Court Two Condominium Association, is contractual and distinguishable from to this decision has to do with language who had failed to pay her fees for six a community living situation. Condo in the forcible entry and detainer statute, months, tried to defend herself against boards and associations could face seri- which says: “No matters not germane to the association’s attempt to take posses- ous financial difficulties if they had no the distinctive purpose of the proceeding sion of her unit. She argued that a leaky recourse to collect unpaid assessments, shall be introduced by joinder, counter- roof just above her unit had caused ex- the court observed. claim or otherwise.” “The Condominium Act establishes tensive water damage, her faulty toilet The General Assembly did not define that: ‘It shall be the duty of each owner was not repaired, and that general up- “germane” and the majority said it was *** to pay his proportionate share of the keep of the common areas of the build- not going to apply it in this case. The dis- common expenses,’” Justice Theis noted ing was not maintained, and thus she senting justices took the opposite posi- in an opinion that Justices Garman, was entitled to withhold payment. tion, arguing that because the legislation Thomas, and Karmeier joined. For its is vague on the concept of germaneness, part, associations, through their boards Not a purely contractual the court could find that the unit owner’s of managers, must provide for the opera- relationship defense in this case was germane. The tion, care, upkeep, maintenance, replace- dissent also added that the matter must An appellate court panel in 2012 ment, and improvement of the common then be left to the legislature to clarify ruled in the condo owner’s favor, which elements, Theis observed. the statute. evoked a strong reaction from associa- These duties and obligations, while “It is true that the form of condomin- tions and management companies. “Ev- they exist in condo declarations and as- ium ownership only works if each unit eryone was up in arms,” said Chicago sociation bylaws, are also imposed by owner faithfully pays his or her share of real estate attorney William Anaya of statute, she noted. “Accordingly, a unit the common expenses,” Justice Freeman, Arnstein & Lehr, LLP, who represents owner’s obligation to pay assessments is writing for himself and Justices Kilbride such groups. “If there was a right to nul- not akin to a tenant’s purely contractual and Burke, said in dissent. “It is equally lify [i.e., defend against an association’s obligation to pay rent, which may be ex- true that condominium ownership only attempt to take ownership for unpaid cused or nullified because the other party works if the association likewise fulfills assessments by arguing that the asso- failed to perform.” its obligations. ciation did not meet its end of the bar- That is not to say that a condo unit “Not permitting a unit owner to raise gain], your assessments would double.” owner may not take other action against Although many condo owners did not her association, for example, by seek- Janan Hanna is a Chicago freelance know about the appellate court ruling, ing a declaratory injunction, explained writer and a licensed attorney. A former some condo lawyers said they saw a Chicago condominium attorney How- staff writer for the Chicago Tribune, she slight uptick in unit owners using a simi- ard Dakoff of Levenfeld Pearlstein, LLC. writes for numerous news organizations.

266 | illinois Bar Journal | june 2014 | VOL. 102 a nullification defense in a forcible ac- College Football | Continued from page 268 tion denies a voice to an ever growing segment of the population who purchase is that they’re really attacking the wrong overseeing the athletic duties that the condominium property,” the dissenters target with the wrong strategy.” continued. “True, unit owners can con- players perform, Ohr noted. Will schools tinue to pay assessments and bring a He noted that only 17 private uni- reclassify coaches as faculty members, lawsuit against the association for its versity teams are subject to the NLRB, Franczek and Ketterman wondered? failure to repair or maintain; however, while 100 or so other Division 1 pub- that puts an expensive and time-consum- lic university teams are subject to state The long litigation road ahead ing burden on the unit owner rather than labor laws. If the NLRB rules in favor Procedurally, a number of things litigating the matter in the forcible proof the players, how might the recruit- would have to happen before North- ceeding that is already before the court, ment of high-school players be affected? western or any private team could en- Could the tenders change substantially? as is done in a landlord-tenant situation.” gage in collective bargaining. First, the Will schools offering four-year scholar- The dissenting justices also noted that NLRB in Washington would have to up- Illinois is the only state in the country ships, as Northwestern now does, switch hold Ohr’s ruling. If they do, the ballots that allows for forcible entry and de- to one-year tenders? cast by the Northwestern players will be tainer for unpaid assessments. In Illinois, Regional Director Ohr could have counted and if the yea votes outnumber an action for possession of a unit can made the argument that the players are occur within 180 days if a unit owner is temporary employees who are getting a the nay votes, Northwestern would, in in default. superb education at one of the nation’s theory, have to begin negotiating with Nevertheless, the majority “made a most prestigious university’s, Franczek the team members. statement of public policy that is right,” said. “He could have just as easily writ- But expect the university to appeal, said Anaya. “Whenever the General As- ten an equally convincing decision going taking its case to either the U.S. Court of sembly uses a funny word like ‘germane’ on the other side of the equation.” Appeals for the D.C. Circuit or the fed- we don’t know what it means. What the Ohr distinguished his ruling in this eral seventh circuit in Chicago. If the ap- court said is the General Assembly could case from a case involving graduate as- pellate court rules that student athletes put more definitiveness [into the lan- sistants at Brown University who tried are employees, Northwestern could still guage of the statute] if it wants to.” ■ to organize. In that case, the assistants appeal to the U.S. Supreme Court. lost because the NLRB held they were “More likely than not, every football being supervised by faculty members player will have graduated and a whole and were getting an education and sti- new set of football players that had no TRADEMARK pend in exchange for their teaching du- input into whether or not they want a Copyright & Patent Searches ties. Academic faculty members are not union will be in place,” Franczek said. ■ “Experienced Washington office for attorneys worldwide”

FEDERAL SERVICES & RESEARCH: Attorney directed projects at all Federal agencies in Washington, DC, including: USDA, TTB, EPA, Customs, FDA, INS, FCC, ICC, SEC, USPTO, and many others. Performing Business Valuations, Face-to-face meetings with Gov’t officials, Freedom of Information Act requests, copyright deposits, document legalization Damage Claim Reports and @ State Dept. & Embassies, complete trademark, copyright, patent and TTAB Forensic Accounting in the following areas: files.

COMPREHENSIVE: U.S. Federal, State, Common Law and Design searches, • Shareholder Lawsuits INTERNATIONAL SEARCHING EXPERTS: Our professionals average • Family Law over 25 years experience each FAST: Normal 2-day turnaround • Corporate Actions with 24-hour and 4-hour service available • Estate and Gift GOVERNMENT LIAISON SERVICES, INC. 200 N. Glebe Rd., Suite 321 • Matters Before SEC & IRS Arlington, VA 22203 Deposition and Trial Experience Ph: 703-524-8200, Fax: 703-525-8451 Tony Garvy Minutes from USPTO & Washington, DC ASA, CPA/ABV/CFF, CVA, FCPA, CDFA TOLL FREE:1-800-642-6564 312.324.0340 | [email protected] www.GovernmentLiaison.com [email protected] www.corporatevaluationservices.com

VOL. 102 | june 2014 | illinois Bar Journal | 267 lawpulse | Continued

Unionized college football – is a Wildcat strike on the way? What might the NLRB ruling in favor of Northwestern football players seeking to unionize mean for the players – and for collegiate sports? Lawyers for labor and management opine.

s unpredictable and un- Understanding the complicated nitty- cerns raised by some management-side precedented as it was that gritty of what a unionized team would attorneys, “the topics [that will be nego- some players on North- look like is daunting, but Ketterman tiated should a team become unionized] western University’s foot- believes Ohr got it right on the funda- will be very narrow.” Health coverage ball team decided they mental issue; that the amount of control could improve for the athletes, and play- neededA a union to secure better benefits Northwestern and other Big Ten private ers who suffer a disability while play- for themselves, the decision in March teams have over their players is immense. ing might be given disability coverage by the regional director of the National Among the requirements and rules im- after they graduate. The students might Labor Relations Board (“NLRB”) in posed on players outlined in Ohr’s deci- be able to make decisions about where support of those efforts was even more sion are restrictions on classes they can they live and be given accommodations surprising. take if they conflict with practice time, on class scheduling, and generally be less Labor lawyers (not to mention mem- which averages about 50 hours a week; controlled every hour of every day, Ket- bers of the public), irrespective of their when, where, and how much they can terman said. opinion on the matter, never imagined eat; where they can live; how they must The biggest issues would involve that members of a collegiate sports team, behave in public; and even their use of workers’ compensation and taxation of receiving valuable four-year scholar- social media, including a requirement the players’ scholarships. “If we call these ships, would be deemed “employees,” that they accept friend requests from players employees, the natural outflow as the NLRB’s regional director in Chi- coaches. is if they’re injured playing, they have cago, Peter Sung Ohr, characterized the Strict disciplinary action is taken workers’ comp coverage,” he said. This players. Northwestern appealed that de- against players who violate the rules. could substantially raise the rates private cision to the five-member NLRB panel But many of the rules were put in place universities now pay since injuries are in Washington, D.C., which has agreed by the National Collegiate Athletic Asso- routine as compared to injuries in class- to hear the case. Meanwhile, on April ciation (“NCAA”), a fact that prompted rooms and other sports. 25, eligible team members cast yea or some to suggest that the players’ issues Would the students’ scholarships need nay votes on whether they wanted to should be taken up with the NCAA. to be taxed? Ketterman believes the IRS be represented by the United Steelwork- There is a lawsuit pending against could do a workaround on this and pre- er’s union, but those ballots will not be the NCAA by players seeking a piece of vent the taxation of scholarships. counted until the appeal is decided. the billions of dollars the association has “How this will affect football, I don’t Experts expect the Washington panel made from college football and basket- really know,” Ketterman said. “But I to uphold the regional director’s deci- ball in the power conferences. The play- think top notch programs are going to sion. Still, it will take years of legal wran- ers in the suit are also seeking permission attract top notch players.” But the an- gling before a final decision is made. to use their likeness and image for profit. swers probably won’t be known before Whether the recent events are a bell- today’s grade-school aged children begin wether of change in the way private col- Workers’ comp for players? receiving offers to play since the proce- lege sports teams are run is of course the Some scoff at the idea that the play- dural process will likely involve years obvious question. But the issues are at- ers need a union. After all, they receive of court battles, he said, which could tention grabbing. scholarships at Northwestern of approx- include a ruling by the U.S. Supreme “When I first heard about this [ef- imately $70,000 a year to cover tuition, Court. fort], I laughed and thought someone room, and board. But, Ohr notes that NLRB governs private, not public, is getting their 15 minutes of fame and “[m]onetarily, the Employer’s football universities then it will flame out,” said Chicago program generated revenues of approx- labor lawyer Travis Ketterman, who imately $235 million during the nine James C. Franczek, Jr., one of the most represents construction worker unions. year period between 2003-2012 through powerful labor lawyers on the manage- “Four months ago, not in my wildest its participation in the NCAA Division I ment side, who negotiates on behalf of dreams did I think we’d be having this and Big Ten Conference that were gener- the City of Chicago with unions from conversation.” He’s pleased, though, that ated through ticket sales, television con- nearly every city agency, including the this very public discussion about unions tracts, merchandise sales and licensing public schools, acknowledges that the is taking place, noting that workers agreements.” The NCAA prohibits play- players raised some very legitimate is- might begin thinking about their need ers from any share of that revenue. sues. “The fundamental problem, though, for union protection. Ketterman said that despite the con- (Continued on page 267)

268 | illinois Bar Journal | june 2014 | VOL. 102 Juvenile Justice, Part I: Automatic expungement of juvenile records Proposed legislation would require the state police to expunge arrest records when juveniles turn 18 if they were never charged and have no recent arrests.

ver the last several years, 4084, which had broad bipartisan sup- to expunge records each year, it could be juvenile justice advocates port and no opposition from the Illinois tweaked as it makes its way through the began noticing a troubling State Police, is now pending in a House House. The legislation states that “[t]he trend: Minors who were committee, sponsored by Rep. Arthur Department of State Police shall auto- arrested for a crime but Turner (D-Chicago). The Senate bill was matically expunge, on an annual basis, neverO charged in a delinquency petition sponsored by Kwame Raoul (D-Chi- law enforcement records pertaining to were learning that their arrest records cago). Chicago Mayor Rahm Emanuel a minor who has been arrested if (a) the were somehow getting out to prospec- also supported the legislation. minor has been arrested and no petition tive employers, landlords, and others. for delinquency was filed with the clerk How could it be that, in the strictly con- ‘[I]t’s difficult to keep everything of the circuit court; (b) the minor has at- fidential juvenile justice system, young confidential’ tained the age of 18; and (c) since the adults were facing roadblocks in their For years, the Illinois State Police has date of the minor’s most recent arrest, at efforts to get jobs, job training, housing, been a repository for all arrests made in least 6 months have elapsed without an licenses, and to pursue other productive municipalities. Under existing law, 18 additional arrest.” The bill also requires endeavors that would let them move for- year olds may go to court and petition that an individual be appointed to ensure ward in life? to have their arrests expunged, but it that the records are being expunged on One young woman completed an Il- costs money and most young adults are an annual basis. linois Job Corps program and when she unaware of this option. Adults can im- “This is a good place to start; a good applied for her pharmacy technician li- mediately petition to have their records first step” in reforming the juvenile jus- cense, the licensing agency learned that expunged after an arrest or an acquittal. tice system, Frazier said. Like other ju- she had an “aggravated battery” on her “Even though, theoretically, you can venile justice advocates, Frazier would record, said Carolyn Frazier, an attorney file yourself, I don’t think very many of like to see a legislative commission es- and clinical law professor with the Chil- us would be comfortable doing that. I tablished to get to the root of why and dren and Family Justice Center at North- think many children and their parents how confidential information involving western University School of Law. The generally assume that because the child minors is being released. Additionally, girl was involved in a fight with other cleaned up the graffiti and apologized to they’d like arrest records that don’t result girls at school and was never charged the shop owner, there’s nothing to worry in a delinquency petition withheld from with a crime, yet in some database, her about,” said Elizabeth Clark, president the state police. And ideally, the U.S. Jus- arrest was listed without any disposi- of the Juvenile Justice Initiative. “With tice Department would order the FBI to tional information. Similarly, young man a statewide database…, it’s difficult to follow the same directive that the Illinois working as a janitor at a Chicago public keep everything confidential.” State Police would under the proposed school was fired after one of his annual Although the bill requires state police law. ■ background checks showed two arrests. Neither resulted in delinquency petitions or a finding of guilt. As Frazier put it, we’re in a “brave new world of data integration” where municipalities small and large are sharing information with one another, the state, and the federal government. State police used to send information to the FBI, but that practice ended three years ago. A bill passed in the Illinois Senate would begin to address this issue by requiring the state police, which receives all arrest records from every municipality, to expunge the records of any juvenile who has turned 18, was never charged, and who had no arrests six months prior to his or her 18th birthday. The bill, HB

VOL. 102 | june 2014 | illinois Bar Journal | 269 lawpulse | Continued

Juvenile Justice, Part II: An end to automatic transfers to adult court? A legislative proposal would stop the automatic transfer of juveniles to adult court, requiring that judges determine whether the transfer is appropriate.

ome members of the Illi- and gang crimes near a school, are auto- basis would lead to the inconsistent nois House are champion- matically transferred to adult court. In treatment of the most violent juvenile ing a proposed law that many cases, according to a study con- offenders in the system.” would eliminate the auto- ducted by the Juvenile Justice Initiative, matic transfer of juveniles an Illinois nonpartisan nonprofit group, Public interest still the Scharged with certain offenses into the the charges are ultimately lowered to less determining factor adult court system without first allow- serious offenses that wouldn’t trigger au- Bill sponsor Rep. Elaine Nekritz (D- ing a judge to determine if transfer is tomatic transfer. Buffalo Grove), chair of the House Ju- appropriate. According to a recent study by the diciary Committee, said in an interview Under existing law, minors aged 15, Juvenile Justice Initiative that looked at that some in law enforcement circles 16, and 17 charged with certain serious statistics gathered in 2010 through 2013, were concerned that, among other pub- felonies, including murder, aggravated 257 minors were automatically trans- lic safety concerns, a minor might com- criminal sexual assault, and certain gun ferred to adult court. Only one child was mit a murder and receive only a maxi- white. Once in adult court, many minors mum four-year sentence if tried in ju- have their offenses lowered and strike venile court. Nekritz’ response: “Judges plea bargains. are probably smarter and politically, they | advertisers In this Issue In fact, 54 percent of the convictions don’t want that to happen.” were for lesser offenses than originally Allison Flaum, the legal director of Attorneys’ Title Guaranty Fund, Inc...... 275 charged. Only 13 percent of those trans- the Children & Family Justice Center at ferred had been charged with murder, ac- Northwestern University School of Law, Corporate Valuation Services, Inc...... 267 cording to the study’s findings. said the proposed change “does not in The proposed law, HB 4538, would any way eliminate the prospect of trans- Government Liaison Services, Inc. . . . 267 not end the practice of trying juveniles fer. All it does is have these decisions as adults. But it would require a hear- IICLE ...... 263 happen in a court room on the record by ing before a juvenile judge who would a juvenile court judge and in doing that, ISBA Mutual Insurance ...... 271 hear testimony and consider the child’s Illinois would be in line with a vast ma- entire history and circumstances, includ- jority of states that have some mecha- Landex Research, Inc...... 291 ing the precise role the child had in the nism of judicial review.” crime, before determining whether trans- Law Bulletin Publishing Company . . . .297 The standard for transfer under Illi- fer would be appropriate. Currently, nois law is not whether moving a minor Lawyer Money Tour ...... 273 prosecutors have discretion to decide into the adult system would be in the whether a minor’s case should be heard child’s best interest, but whether it would Lawyers Assistance Program . . . . . 283 in adult court. be in the public’s interest, Flaum ex- McNabola Law ...... 260 The House Judiciary Committee voted in favor of the proposed bill in plained. The factors a judge would consider Mediate 1-2-3 LLC ...... 269 March and at press time, the bill is in the House rules committee. A representative include a child’s family and criminal Practice Mart ...... 302-303 from the Cook County State’s Attorney’s history, his or her criminal background, office testified against the proposal. Of- physical and emotional health, the se- Professional Solutions Insurance . . . .279 fice spokeswoman Sally Daly explained riousness of the offense, and whether the child was directly responsible as Rubin & Norris, LLC ...... 265 the office’s position. “It is our opinion that juvenile of- opposed to being an accessory, or just Schott, Bublitz & Engel S.C...... 287 fenders charged with the most serious being present during the crime, Flaum and violent offenses should continue said. Surety One ...... 258 to be charged consistently as adults The full Juvenile Justice Initiative Thomson Reuters ...... 304 pursuant to existing statute, with pub- Report can be found here: http://jjustice. lic safety being our first and foremost org/wordpress/wp-content/uploads/ Tort Law Referral Directory . . . . 292-293 concern,” Daly said. “The introduction Automatic-Adult-Prosecution-of- of judicial discretion in a case by case Children-in-Cook-County-IL.pdf. ■

270 | illinois Bar Journal | june 2014 | VOL. 102 Our gift back to our policyholders has grown to $14.7 Million.

For the ninth year in a row, ISBA Mutual has declared a policyholder dividend. The Board of Directors of ISBA Mutual Insurance Company voted to declare a dividend in the amount of (800) 473-4722 ten percent (10%) of each policyholder’s earned www.isbamutual.com premium for 2013. Illinois law update | Prepared by students of the University of Illinois College of Law

dant appears or submits a motion before chal- Hospital. Several days later, he began hav- cases lenging personal jurisdiction. 735 ILCS 5/2- ing trouble breathing and a “Code Blue” was 301(a-5). Some appellate courts have found called. Defendant Dr. Murphy was working Waiver of personal jurisdiction that this language indicates waiver applies re- in the emergency room at the time; Dr. Mur- by appearance does not apply gardless of the timing of the proceeding. phy was an employee of Emergency Care & The court first examined the language of Health Organization, Ltd. (ECHO), and not retroactively section 2-301 and found that it does not ad- of the hospital. Dr. Murphy responded to the BAC Home Loans Servicing, LP v. Mitchell, 2014 dress whether waiver could validate orders Code Blue by attempting to intubate Ander- IL 116311. that have already been entered without person. Anderson eventually sustained a severe On March 20, 2014, the Illinois Supreme sonal jurisdiction. The court therefore con- and permanent brain injury. Court held that waiver of personal jurisdiction cluded that the statute is ambiguous and The plaintiffs filed a negligence action by appearance does not apply retroactively to then turned to its legislative history. Prior to against Dr. Murphy and ECHO. Dr. Murphy orders entered before the appearance, resolv- amendment, the court noted, section 2-301 moved for summary judgment, asserting that ing a conflict in the appellate courts. Under distinguished between special and general ap- he was immune from liability for negligence section 2-301 of the Illinois Code of Civil Pro- pearances. A defendant could make a special under section 25 of the Good Samaritan Act cedure, a party who files a responsive plead- appearance to challenge personal jurisdiction; of Illinois. This section provides that any per- ing or motion before challenging personal ju- all other appearances were deemed general son with a medical license “who, in good risdiction “waives all objections” to personal appearances that waived personal jurisdic- faith, provides emergency care without fee to jurisdiction. 735 ILCS 5/2-301(a-5). The court tion. The court found that section 2-301 was a person” is not liable for civil damages. 745 found that neither the language nor the leg- amended to eliminate the distinction between ILCS 49/25. Dr. Murphy argued that he was islative history of section 2-301 requires that special and general appearances, which had shielded from liability because Anderson was waiver applies retroactively. Therefore, waiver led to confusion and unknowing waiver. not specifically billed for the care he provided; by appearance is prospective only. The court concluded that because the the hospital billed Anderson for supplies used On June 9, 2010, BAC Home Loans Ser- amendment was intended to give defendants during the Code Blue, but not for physician’s vicing obtained a default judgment in the Cir- more protection, allowing retroactive waiver services. The plaintiffs countered that the cuit Court of Cook County for foreclosure would be inconsistent with its purpose. There- Act was inapplicable because Dr. Murphy and sale of Kim Mitchell’s home. Mitchell fore, the court held, waiver of personal juris- was doing his job when he treated Anderson, filed a motion to vacate the judgment. Mitch- diction under section 2-301 is prospective only. and was paid an hourly wage; therefore he ell then withdrew her initial motion and filed was not providing his services “without fee” a motion to quash, arguing that service was The Good Samaritan Act does not under the Act. The trial court held that Dr. defective. The process server stated the sum- Murphy was immune from liability under the mons was left at Mitchell’s residence with immunize physicians providing Act and granted summary judgment to de- her daughter, Michelle Foreman. However, services on a compensated basis, fendants. The plaintiffs appealed, and the ap- Mitchell did not have a daughter and did not regardless of whether the patient pellate court reversed and remanded, holding know a Michelle Foreman. The circuit court is billed that the Act was meant to apply to volunteers denied Mitchell’s motion to quash, and the and not to those who treat patients within the appellate court affirmed. Home Star Bank & Financial Services v. scope of their employment and are compen- On appeal to the Illinois Supreme Court, Emergency Care & Health Organization, Ltd., sated for doing so. Mitchell argued that the default judgment 2014 IL 115526. On appeal to the Illinois Supreme Court, against her was invalid because the circuit On March 20, 2014, the Illinois Supreme the defendants argued that the trial court court lacked personal jurisdiction over her, as Court, as a matter of first impression, held properly granted summary judgment under service had been improper. BAC Home Loans that the term “fee” in the Good Samaritan Act a line of cases which interpret “without fee conceded that service was improper but ar- includes a doctor’s hourly compensation, in- to a person” in the Act as unambiguous, con- gued that Mitchell waived any objections to cluding instances where the doctor is paid but cluding that a physician is entitled to claim personal jurisdiction by filing a motion to va- the patient is not directly billed for the ser- cate before challenging personal jurisdiction. vices provided. (For more about this case, see The court noted it had previously held the May LawPulse.) The court concluded that Editor-in-Chief: Susana Heredia that waiver of personal jurisdiction by ap- the Act’s use of “fee” should be broadly con- pearance is prospective only and does not strued to include both a patient being billed Editors: Kristin Isaacson, Cases apply to orders entered prior to appearance. and a physician being paid. This interpreta- Kat LaCoste, Legislation tion is consistent with the legislative intent to This rule, the court stated, is based on the due Lisa Gillette, Administrative process ideal of giving defendants their day promote volunteerism because, while a physi- in court before a judgment is entered against cian might need the Act’s immunity as an in- Writers: them. However, as BAC Home Loans pointed centive to act as a volunteer, a doctor being Diedre Peters, Cases out, section 2-301 of the Code of Civil Proce- paid to render emergency services does not. Prachi Mehta, Legislation dure has since been amended to state broadly Plaintiff Edward Anderson was admitted Sierra Hennings, Administrative that “all objections” are waived when a defen- to the emergency room at Provena St. Mary’s

272 | illinois Bar Journal | june 2014 | VOL. 102 immunity for negligently performing emer- ployer contributions will increase from 1.1 ability benefits will be reduced to 73% of the gency services where the patient is not billed times the employee contributions to 1.7 in original salary, and on January 1, 2019, these and the decision not to bill is made in good 2015, 2.3 in 2017, and 2.9 in 2019. The 2.9 benefits will be further reduced to 72% of the faith. The plaintiffs argued in favor of a line multiplier will remain in effect until the pen- original total salary. of cases concluding that “fee” is ambiguous sion fund is 90% funded, and may thereafter These amendments also change retirement and makes the Act inapplicable to situations be reduced to the extent necessary to main- options effective January 1, 2015. In the case where a patient is billed and situations where tain 90% funding. The rate of employee con- of employees hired as of January 1, 2011, the a physician is paid without directly billing for tributions will similarly increase from 9% age of normal retirement will decrease from the specified services. to 10% in 2015, 11% in 2017, and 12% in 67 to 65; the age of early retirement will also The Illinois Supreme Court concluded 2019. Contributions will remain at 12% until decrease from 62 to 60. In the case of those that “fee” is ambiguous and includes situa- funding levels reach 90%, and may thereafter employees hired and first making contributions where a physician provides emergency drop to 10.5% as long as the fund remains at tions to the retirement fund before January 1, services on a compensated basis without or above a 90% funding level. 2011, the minimum retirement age for early billing the patient for the services provided. Starting on January 1, 2015, all automatic retirement will increase from 50 to 58, appli- Therefore, the court held that Dr. Murphy annual pension increases will be calculated at cable to those employees younger than 45 on did not provide his services “without fee” and the lesser of either 3% or one-half the annual January 1, 2015. could not claim immunity under the Good unadjusted percentage increase in the Con- Samaritan Act. sumer Price Index for the previous year. How- Hunting licenses for adolescents ever, payment of annual increases will be sus- Public Act 098-0620 (eff. Jan. 7, 2014) (adding 520 pended in 2015, 2017, and 2019. ILCS 5/3.1-9 new). legislation Duty disability benefits will also be pro- gressively reduced. Any employee who be- The Illinois Wildlife Code has been Changes to public employee comes disabled as a result of an injury on the amended to authorize Illinois residents that benefits job that was incurred during the performance are 16 years of age or under to acquire a of regular job duties and cannot continue per- Youth Hunting License. This renewable li- Public Act 098-0622 (eff. June 1, 2014) (amending forming his regularly assigned duties can re- cense affords limited hunting privileges to 40 ILCS 5/12-133.1, 40 ILCS 5/12-140). ceive a duty disability benefit. Currently such the holders without imposing testing or ed- Recent amendments to the Illinois Pension benefit consists of 75% of the regular salary ucation requirements. License holders may Code include changes to provisions concern- when duty disability benefits begin. Current only hunt and carry a firearm, bow, arrow, or ing employer and employee contributions, amendments reduce duty disability benefits crossbow under the accompaniment and su- annual pension increases, duty disability ben- from 75% of the regular salary to 74% as pervision of a parent, grandparent, or guard- efits, and early retirement. The rate of em- of January 1, 2015. On January 1, 2017, dis- ian who is at least twenty-one years of age

VOL. 102 | june 2014 | illinois Bar Journal | 273 Illinois law update | Continued and who has a valid Illinois hunting license. for these children. 95 Ill. Adm. Code 101 (eff. accredited general psychiatry residency pro- Upon turning seventeen years old, the license Mar. 12, 2014). To qualify for benefits, chil- gram. In leading the session, the professional holder must successfully complete a hunter dren of eligible veterans must: (1) be between must select a group-treatment model specifi- safety course approved by the Department of the ages of ten and seventeen, with the ex- cally targeted at addressing the psychiatric Natural Resources in order to obtain a full ception that an eighteen year old may receive needs of the particular group. hunting license and be able to hunt without benefits while completing high school; (2) re- supervision. side in Illinois for at least one year before ap- Annual surcharges assessed on plying for benefits; and (3) attend a public live adult entertainment New standards for digital or private educational institution in Illinois. Illinois Department of Revenue availability of public data These benefit payments shall not exceed $250 Live adult entertainment facilities, com- Public Act 098-0627 (eff. Mar. 7, 2014) (adding for tuition per child annually. monly known as striptease clubs, will now 20 ILCS 45). A parent is an eligible veteran through ei- be assessed an annual surcharge. 86 Ill. Adm. The newly enacted Open Operating Stan- ther death or disability in connection with eli- Code 900 (eff. Mar. 10, 2014). Only facilities dards Act establishes a protocol for Illinois gible service. Either the U.S. Department of that are open to the public will be subjected government agencies to make public data Defense or the U.S. Department of Veterans to the new surcharge. Facility operators may available on the Internet. This open operating Affairs may make these determinations. Eligi- chose to pay the surcharge according to one standard will be known as Illinois Open Data ble service includes time served during World of two methods. First, the operator could elect and will make public data available through War I, World War II, the Korean Conflict, the to pay a surcharge equal to $3 per person ad- a single web portal. “Public data” includes all time period in which veterans were liable for mitted to the facility. It is within the opera- data that is collected in pursuance of those induction under the Universal Military Train- tor’s discretion to pass along this cost to the entities’ official responsibilities and which is ing and Service Act, and the Vietnam Conflict. customer or to find additional sources of rev- otherwise subject to disclosure pursuant to With regard to disabled veterans, eligibil- enue to cover the expense. Second, an opera- the Freedom of Information Act. ity is further dependent on the veteran not tor may elect to pay a flat fee based on the Public data will be accessible to external receiving disability compensation. Upon re- facility’s gross taxable receipts under the Re- search capabilities, able to be regularly up- ceiving a 100% disability rating by the U.S. tailer’s Occupation Tax Act. A $25,000 sur- dated, and kept in a format that allows for Department of Veterans’ Affairs for two con- charge would be assessed for gross taxable public notification of such updates. Public secutive years, a veteran will be considered receipts equal to or greater than $2,000,000; data sets made available on the web portal permanently disabled. The educational ben- $15,000 for gross receipts between $500,000 will be provided for informational purposes efits shall be paid to the child so long as the and $2,000,000; and $5,000 for gross re- only, and the State will not be liable for any 100% disability lasts and the child is eligible. ceipts less than $500,000. deficiencies in the completeness or accuracy To apply for and receive benefits, appli- of the data. cants must submit an Application for Veter- Certification for drinking water ans’ Children Educational Opportunities and examiners a Certificate of Attendance and Statement of Illinois Environmental Protection Agency administrative Expenditures for the Veterans’ Children Edu- Pursuant to the Public Water Supply Oper- cational Opportunities. ations Act, the Illinois Environmental Protec- agencies tion Agency (“EPA”) has set forth procedures New guidelines for group to obtain a drinking water operator certifica- Changes to funding distribution psychotherapy services tion. 35 Ill. Adm. Code 681 (eff. Apr. 1, 2014). under the Abandoned Residential In order to be eligible to take a water supply Property Municipality Relief Illinois Department of Healthcare & Family operator examination, an individual must Services Program have graduated from high school or have the Rural Health Clinics (RHCs) and Feder- equivalent of a high school education, be able Illinois Housing Development Authority ally Qualified Health Centers (FQHCs) in Il- to read and write English, submit evidence of The Housing Development Authority has linois may bill for group psychotherapy ses- his or her character, and pay the required fee. amended rules regarding the Abandoned Res- sions so long as specific timing, size, scope, In order to pass the exam, individuals idential Property Municipality Relief Pro- and documentation requirements are met. 89 must obtain a score of at least 70%. Passing gram. 47 Ill. Adm. Code 381 (eff. Mar. 10, Ill. Adm. Code 140 (eff. Mar. 13, 2014). These test scores will be valid for six years. After 2014). Grant applicants will now be divided sessions may only occur twice a week with passing the exam, individuals may apply for into four geographic categories with the per- only one session per day. Each session must a certificate of competency. The Illinois EPA centage of funds allocated to each category as last at least forty-five minutes, and the groups will assess the individual’s education and ex- follows: 25% to the City of Chicago; 30% should not exceed twelve patients, each of perience, along with contacting three refer- to Cook County (excluding the City of Chi- whom must have been diagnosed with a men- ences, to determine eligibility for the certifi- cago); 30% to counties surrounding Cook tal illness. Residents of homes licensed under cate. Individuals that pass the exam but do County; and 15% to municipalities in the rest the Nursing Home Care Act or the Specialized not have the required experience necessary of the state. Applicants will be ranked against Mental Health Rehabilitation Act are ineligi- for the certification will be considered Opera- others in their geographic area based on their ble for group psychotherapy services. tors in Training. need, capacity, impact, budget, and readiness RHCs and FQHCs must further maintain to proceed. records of the patients treated with group Flat rate for Illinois Racing Board therapy, documenting each session’s focus, occupational licenses Educational opportunities for how much each patient participates, and the children of deceased or disabled duration of the session. Only select individu- Illinois Racing Board als may lead the group sessions, including a Applicants for occupational licenses from veterans psychologist, a licensed clinical social worker, the Illinois Racing Board are now subject to Illinois Department of Veterans’ Affairs a licensed clinical professional counselor, a li- paying a blanket annual fee of $25, regardless The Department of Veterans’ Affairs re- censed marriage and family therapist, an ad- of job position. 11 Ill. Adm. Code 502 (eff. cently adopted amendments aimed at imple- vanced practice nurse certified in psychiatric Mar. 1, 2014). This fee now applies to persons menting the Children of Deceased Veterans and mental health nursing, or a licensed phy- who perform professional services as well as Act and providing educational opportunities sician who has completed or is attending an racetrack employees. ■

274 | illinois Bar Journal | june 2014 | VOL. 102 WHY ATG ?

Joining the ATG family is one of the best things I’ve done in my career. ATG has always been way ahead of the curve for real estate lawyers. The tools and services available through ‘‘ATG have improved my lawyering skills and made my law office more efficient, which ultimately reduces costs to clients. Who still comes to your office to offer in-person, customized training? ATG does.

Aurora A. Austriaco Austriaco & Associates, Ltd. Chicago ATG Member Since 1999 ’’

ATG: Making good lawyers better.

800.788.8989 Contact us for more information: Kelly Kawell Senior Account Manger WWW.ATGF.COM Direct Phone: 312.752.1213 E-mail: [email protected]

Visit us at our new location in Gurnee.

NLT | Belvidere | Crystal Lake | Rockford

VOL. 102 | june 2014 | illinois Bar Journal | 275 Building Your Case with Social Media Evidence

Can you get the other side’s damaging Facebook posts into By Ed Finkel evidence? How do you make sure they don’t vanish at a click of the “delete” key? Here’s a look at emerging principles and best practices in this fast- moving area of law.

prep school in the Miami area fails to renew its principal’s employment contract, and he responds with an age discrimination suit claiming he was fired inappropriately. He Asettles for $150,000, of which slightly more than half, $80,000, is a payment that must be surrendered if he or his wife breaches confidentiality.

As their daughter was involved agreement. The Facebook posting with the suit, the former principal just became the school’s evidence. and his wife tell her they have set- “While it was not itself a tled and are happy with the result. breach, it later did prove, be- The daughter almost immediately cause the community got word of gets onto Facebook to share the this” that confidentiality had been news that her parents have won breached, says Mark C. Palmer the case and crows the school “is of Champaign-based Evans, now officially paying for my va- Froehlich, Beth & Chamley, Ltd., cation to Europe this summer. one of the presenters at a half-day SUCK IT.” “Social Media in Litigation” con- This news travels forth from ference sponsored by the ISBA in her more than 1,000 Facebook Chicago on April 4. “The breach friends and at some point it was telling the daughter…‘Yes, it’s reaches the ears of school offi- been settled.’ And then the Face- cials that confidentiality has been book posting provided the evi- breached. Not because the daugh- dence of the breach.” ter broadcast the news on Face- Palmer notes two key take- book per se, but because her par- aways from the result: “Obvi- ents told her what had happened, ously, in a confidentiality agree- in violation of the confidentiality ment you need to be careful of

Ed Finkel is an Evanston-based freelance writer.

276 | illinois Bar Journal | june 2014 | VOL. 102 the exact language you use and who and that attorneys download a guidebook anticipated,’” she says. “If you have had how that confidentiality could be con- called “The Perfect Preservation Letter” somebody write you a letter [saying] that tained to different parties, such as your written by Craig Ball, a computer they’re going to sue you, you can assume immediate family members and so on,” forensic analyst and former trial lawyer litigation is coming. If your spinach is he says, adding wryly, “More important, (see “Resources” sidebar). making people ill and sending them to never, ever tell a teenager something you In the guidebook, Ball notes that pres- the hospital, you can assume legal trou- don’t want ending up on several social ervation letters are intended to remind ble. People can say, ‘You reasonably media outlets. Never.” opponents to preserve evidence but also should have known.’” It’s no kidding around that the pro- to serve as “the linchpin of a subsequent Plaintiffs often don’t preserve their liferation of social media during the past claim for spoliation, helping to establish own evidence, and plaintiffs’ attorneys bad faith and conscious dis- should know that it’s a good practice to By Ed Finkel regard of the duty to pre- send a preservation letter to their clients, serve relevant evidence.” Nelson says. “There have been sanctions LaSorsa sends out such given by judges, and adverse influence Serving a subpoena to an actual a letter any time he sends a instructions, to the effect that what is provider like Facebook is almost demand. “Even before any- missing is [damaging],” she says of so- thing is filed, in the same cial media evidence that can’t be recon- never the best way to get access to envelope,” he says. “So structed. social media posts. there can be no mistake Judges’ have become less tolerant of what I want saved.” the loss of such evidence as social media Warning clients not to has become more commonplace, Nelson delete. You should also take says. “They’re more stringent than they great care to properly coun- once were,” she says. decade since Facebook’s founding has sel clients about the need to preserve so- Attorneys and clients should treat po- raised a multitude of new issues related cial media and other electronic evidence, tential social media evidence with the Palmer says. “With a simple click, so- to the use of social media posts in litiga- same caution as any other type, says cial media content can be edited and de- tion – what steps you should take to pre- Bryan Sims, a Naperville-based practi- leted,” he says. “While underlying elec- serve social media evidence, what discov- tioner who also presented at the ISBA tronic data may still exist containing the ery techniques are available, and how to forum. “If it’s relevant, you can’t go de- deleted content, retrieval may be difficult get it successfully admitted into evidence. stroy it – in this case, delete it – in the and costly, [if it’s even] possible.” While courts are still sorting out the de- same way you couldn’t take all your For that reason, he adds, “Litigants tails, some basic principles and best prac- records from a transaction and shred have a duty to preserve relevant evidence tices are emerging. them,” he says. “What happens is, people that they know, or reasonably should get in trouble, they panic because they’ve The challenges of preserving know, will likely be requested in reason- got a Facebook page, and they take it social media evidence ably foreseeable litigation, and the court may impose sanctions on an offending down and delete everything that was ever The ‘perfect preservation letter.’ party that has breached this duty.” on it. That’s never going to end well.” When an attorney suspects the contents A litigation hold is considered to be of the opposing party’s social media ac- Social media discovery strategy in effect when litigation or regulatory counts might be needed for discovery, action is pending – or when one is rea- and tactics the first step is to send out a preserva- sonably anticipated, Nelson says. “The Scope of social media discovery. Once tion-of-evidence letter to the opposing devil is in [how you define] ‘reasonably you’ve sent the letter to the other side, counsel as soon as possible, says Peter LaSorsa, a Mapleton-based practitioner, who also presented on April 4. You can use a standard lawyerly letter for other attorneys, but if you’re sending one to an FIND OUT MORE ›› EARN FREE CLE CREDIT unrepresented party, make sure you’re crystal clear. Social Media in Litigation “Make it in language that later on, they can’t go into court and say, ‘I didn’t Mark C. Palmer, Bryan M. Sims, Peter M. LaSorsa, Jerome E. understand it. I don’t know what pres- Larkin, and Aaron W. Brooks were speakers at the ISBA’s “Social ervation of evidence is,’” he says. “Spell Media in Litigation” program, presented live in Chicago on it out so a high-schooler can understand April 4 and available free online to ISBA members at http://isba. it. It’s the old [saying], ‘Know your au- fastcle.com (you’ll find it listed by title among the On-Demand dience.’” Seminars). Topics include preservation of social media evidence Sharon Nelson, president of Virginia- and ethical issues raised by social media. The program also based digital forensics and information features a mock proceeding where presenters make the case security firm Sensei Enterprises, who for and against admission of Facebook evidence. presented at a similar forum March 28 at the ABA Tech Show, recommends

VOL. 102 | june 2014 | illinois Bar Journal | 277 social media | Continued

LaSorsa says, think first about what out what you can from the portion of a in civil cases from getting the actual so- you’re trying to prove and whether you litigant’s social media information that cial media content directly from provid- really need social media evidence for he or she has made publicly available, ers, although they might be able to get your case. “A lot of times, you might then tailoring discovery requests based dates and times of postings or other po- have to go through a huge expense [to on that research. “If you see something tentially useful metadata. obtain the evidence], and do you really [useful], then obviously you can send a A better way to get it: make a request even need to do that?” he asks. “At the more targeted discovery request with re- upon the user. “Typically it will be re- end of the day, if you have some other spect to information about that,” he says. leased to that person,” she says. “Their way of proving what you need, do you “The more focused you are, the more attorney is going to review it first, [to want to go down that road? You may likely you are to have success.” make sure the data turned over] is rele- have problems, especially if it’s been de- Should you subpoena Facebook? Serv- vant. You can’t go fishing through some- leted.” ing a subpoena to an actual provider like body’s social media site.” (And don’t Even if you think you do need social Facebook is almost never the best way to friend a witness or party to get access to media evidence, asking for everything in get access to social media posts. Nelson otherwise private portions of their Face- a person’s Facebook account is not likely notes that the federal Stored Communi- book or other social media pages. See the to be received well by the opposing liti- cations Act, which has been upheld in “Resources” sidebar for links to articles gant or the court. Sims suggests finding multiple court decisions, bars attorneys that say more about this.)

Find out more about social media evidence Programs like Snagit and

The following articles are in the IBJ archive. Camtasia can • Facebook: What Family Lawyers Should Know, by Adam C. Kibort (July 2013). electronically capture http://www.isba.org/ibj/2013/07/facebookwhatfamilylawyersshouldknow social media posts. • Tips for Authenticating Social Media Evidence, by Nicholas O. McCann (September 2012). http://www.isba.org/ibj/2012/09/ tipsforauthenticatingsocialmediaevi • Friending Your Enemies, Tweeting Your Trials: Using Social Media Ethically, by Helen W. Gunnarsson (October 2011). http://www.isba.org/ibj/2011/10/ Making printouts of social media friendingyourenemiestweetingyourtri postings. Though many lawyers print posts and other information off of social • Does What Happens on Facebook Stay on Facebook? Discovery, Admissibility, media sites, Nelson and LaSorsa caution Ethics, and Social Media, by Beth C. Boggs and Misty L. Edwards (July 2010). against it. One needs to be able to au- http://www.isba.org/ibj/2010/07/doeswhathappensonfacebookstayonface thenticate that information, Nelson says, • Will You Be My (Facebook) Friend?, by Karen Erger (April 2010). and none of the metadata – about when http://www.isba.org/ibj/2010/04/willyoubemyfacebookfriend something was posted, or when it might • Looking for “Facts” in All the Wrong Places, by Hon. Ron Spears (February have been edited, for example – comes 2010). http://www.isba.org/ibj/2010/02/lookingforfactsinallthewrongplaces with a printout. She recommends programs like Snagit or Camtasia to elec- These resources were recommended by Virginia-based digital forensics expert tronically capture and authenticate social Sharon Nelson. media or other communications. “Fewer and fewer judges are admitting [print- • Authentication of Social Media Evidence, by Judge Paul Grimm (36 Am. J. Trial outs] because there’s no metadata.” Advoc. 433 (2013)). “By the time discovery gets started, • Lorraine vs. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007). that Facebook page could be long gone,” LaSorsa says. “How are you going to • The Perfect Preservation Letter, by Craig Ball. http://www.craigball.com/ prove [who authored it]? You could make perfect%20preservation%20letter.pdf a Facebook page look like [it belongs to] anybody. So a printout could be bogus. The following papers were prepared by Stacie L. Hanson of the Peoria office of If you print out a Facebook page, that’s Heyl, Royster, Voelker & Allen as part of their annual claims-handling seminars. all you’re left with, is a paper document.” • Effective Claims Practices: Overcoming Hurdles to the Use of Social Media (May 22, 2013). http://www.heylroyster.com/_data/files/Seminar%202013/B%20 Getting social media admitted -%20SKH%20-%20V6%20-%20Final.pdf into evidence • Effective Use of Social Media as a Litigation Tool for the Defense (May 17, 2012). Authentication. Once you’ve obtained http://www.heylroyster.com/_data/files/Seminar%202012/E%20-%20SKH.pdf the social media evidence you need, think about how you’ll get it admitted. Authentication is the first step, Palmer

278 | illinois Bar Journal | june 2014 | VOL. 102 says, as it would be with any evidence (a bols, punctuation, capitalization, saluta- ference in getting social media evidence 2012 IBJ article treated authentication in tions, signoffs, etc.,” he says. “It’s almost admitted than evidence from any other depth – see sidebar). “It is important to like ‘modern day handwriting.’” source. “The fact that it’s social media not let technology distract you from the Nelson, who was speaking to a na- doesn’t give it some sort of special sta- standards of proper foundation, namely tional audience, suggests that attorneys tus, good or bad, in terms of admissi- how can one satisfy authentication, or carefully read Rule 901 of the Federal bility,” he says. “The basic rules are the identification, sufficient to support a Rules of Evidence, which governs au- same regardless of what you want to get finding that the evidence is what the pro- thentication of evidence and says it can admitted: You have to demonstrate to ponent claims it is,” he says. be done with circumstantial evidence the judge that the evidence is relevant, But electronic communication pres- that reflects the evidence’s content. Il- authentic, and not subject to exclusion ents an evidentiary challenge not com- linois attorneys should further consult because it’s hearsay.” mon to in-person or telephone conver- Rule 901 of the Illinois Rules of Evi- Attorneys sometimes get “hung up” sations, Palmer notes. “Technology has dence, which is similar to its federal on the authentication piece but need to created a foundation issue of showing counterpart. Nelson recommends a keep in mind that judges don’t need to who was on the other end of the ‘line,’ 2013 article by Judge Paul Grimm as a be convinced beyond any reasonable whether text message, e-mail, instant great place to get details (see sidebar). doubt. “If the opposing party says, ‘I message, Tweet, Facebook posting, and She also noted that he “godfather of all didn’t post that,’ but a bunch of posts on and on,” he says. “Circumstantial evi- cases” on authentication, even though it before or afterward are from this per- dence of access to an account, computer, involved e-mail rather than social media, son, it’s good circumstantial evidence,” or device may be one method. Embed- is Lorraine vs. Markel American Insur- he says. “It’s the same analysis as with ded GPS location metadata or even cell ance Co., 241 F.R.D. 534 (D. Md. 2007). any other piece of evidence.… Is there tower pinging may be others.” ‘The basic rules are the same.’ Sims something here that would demon- You can attempt to identify the au- suggests that attorneys try to determine strate that the judge would believe the thor’s writing style, Palmer says. This can what they want admitted in advance of person I say wrote this [actually wrote include “the use of abbreviations, sym- a trial. Overall he doesn’t see much dif- it]?” ■

The Right Pick FOR PROFESSIONAL LIABILITY COVERAGE

• Rated “A” (Excellent) by A.M. Best for financial strength and operating performance • No case settled without the insured’s consent • $50,000 in Claims Expenses Outside the Limits included • Risk management advice hotline at no additional charge AttorneyShield® PROFESSIONAL LIAB ILITY INSURANCE

Professional Solutions To learn more, call 1-800-510-8240 INSURANCE COMPANY or visit www.attorneyshield.com. PSIC 14001 University Ave., Clive, IA 50325

Professional liability insurance is underwritten by Professional Solutions Insurance Company. A.M. Best ratings range from A++ to S. As an insured, your firm qualifies for up to 2 hours of risk management consultation annually. ©2013 PSIC NFL 9288

This product/service is not endorsed, recommended, supported or approved by the ISBA.

VOL. 102 | june 2014 | illinois Bar Journal | 279 Pretrial Motions – Are You Getting Them Right?

Recent appellate opinions and orders show that too many attorneys improperly label and file motions to dismiss and for summary judgment at the trial level. Here’s a quick guide to understanding these motions, highlighting key things to remember when filing. By Jennifer Sanders

otion practice is a key component of litigation. discussing the differences between these commonly filed motions, emphasizing Although motions may appear routine and simple, that “[t]he Code and meticulous motion they are anything but rudimentary and require an practice demands preservation of the dis- tinctions between sections 2-615, 2-619, attorney’s utmost attention to precision and a thorough and 2-1005.”7 Munderstanding of the rules governing them. Whether you are a newly licensed attorney or have been engaging in motion practice for years, a review of these mo- More importantly, understanding Procedure. Those opinions and orders tions is in order. This article explains what motions to file when can mean sink have highlighted the mistakes attorneys when to file what motion and reviews or swim for a newly licensed attorney. are making and have gone great lengths the key caveats for each. And even seasoned veterans can make to explain how to properly file these mo- ______mistakes when it comes to identifying the tions. 1. See, e.g., Clemons v. Nissan North America, Inc., proper motion to file. For example, in April 2013, Justice 2013 IL App (4th) 120943; Reynolds v. Jimmy John’s Enterprise, LLC, 2013 IL App (4th) 120139; Miller Of course, most attorneys would like Knecht of the fourth district appellate v. Harris, 2013 IL App (2d) 120512; Howle v. Aqua to think they know how to properly file court made a special point in Reynolds v. Illinois, Inc., 2012 IL App (4th) 120207; In re T.P.S., the most frequently used motions, such Jimmy John’s Enterprise, LLC6 to clarify 2012 IL App (5th) 120176. 2. See, e.g., McClure v. Haisha, 2013 IL App (2d) as motions to dismiss or motions for the differences between these three mo- 130365-U; Stover & Co. v. Salvation Army, 2013 IL summary judgment. However, recent ap- tions. The majority of Justice Knecht’s App (1st) 121366-U; 1801 W. Irving, LLC v. Jonathon pellate opinions1 and orders2 show that opinion was dedicated to sifting through Splitt Architects, Ltd., 2013 IL App (1st) 121357-U; Jin Park v. Foster Bank, 2013 IL App (1st) 30426-U; Olser attorneys have been confusing a few the numerous improperly filed motions Institute, Inc. v. Miller, 2013 IL App (1st) 123053-U. commonly filed motions – specifically, and explaining how they should have 3. 735 ILCS 5/2-615 (West 2012). 3 4 4. 735 ILCS 5/2-619 (West 2012). those filed under sections 2-615, 2-619, been filed. In closing, Justice Knecht de- 5. 735 ILCS 5/2-1005 (West 2012). and 2-10055 of the Illinois Code of Civil voted an entire section of the opinion to 6. Reynolds, 2013 IL App (4th) 120139. 7. Id. ¶ 51.

Jennifer Sanders works for the Illinois Secretary of State, Office of the Inspector General, as an auditor and inspector. Before that she was a staff attorney for the Illinois Appellate Court, Fourth District.

280 | illinois Bar Journal | june 2014 | VOL. 102 Section 2-615 motions aware that failure to challenge the sufficiency of the complaint 18 Section 2-615 of the Code of Civil Procedure governs mo- in the trial court will cause forfeiture of the issue on appeal. tions with respect to pleadings. “The primary purpose of So do not be discouraged from filing a section 2-615 motion pleadings is to apprise one’s adversary and the court of the na- to dismiss simply because the plaintiff has been given leave to ture of the claim or defense asserted,”8 and to “present, define, amend his complaint. Other key nuances to remember and narrow the issues and limit the proof needed at trial.”9 Affidavits are irrelevant. about section 2-615 motions is that a court is limited to the After a pleading has been filed, an objection may be made, but factual allegations of the complaint and may not consider ex- it must be raised by motion.10 The purpose of filing motions traneous matters when reviewing the sufficiency of the com- with respect to pleadings is to correct defects in the pleadings plaint.19 Thus, matters such as depositions and affidavits are prior to trial.11 irrelevant to a court’s ruling on a section 2-615 motion. Don’t Although pleadings take many forms, the focus of this article is civil complaints and the corresponding section 2-615 motions that object to those complaints. Two motions in particular – a motion to strike a pleading as substantially insufficient in law and a motion to dismiss a cause of action – are A section 2-619 motion can be strategically useful and often necessary. It is important not only to know the difference between them but to understand characterized as a “yes, but” – how they work together and how they compare to other mo- “Yes, the facts in plaintiff’s complaint tions in the Code of Civil Procedure – namely, motions filed under section 2-619 and section 2-1005. are true, but I have a valid defense that Motion to dismiss v. motion to strike. To begin, let us clar- warrants dismissal of the case.” ify the difference between a motion to dismiss and motion to strike pursuant to section 2-615. A motion to strike attacks the complaint itself and requests that parts of the complaint or the complaint in its entirety be stricken, while a motion to dismiss challenges the entire action and asks that the cause be attach such items to a section 2-615 motion. Doing so could dismissed based on the pleadings. be confusing to the judge or opposing counsel and could con- As Justice Gordon of the first district explained in a recent tribute to a court’s decision to reverse on appeal. opinion, “often, we say that a pleading or a portion thereof is Further, a court may not consider conclusions of law or ‘dismissed.’ This is incorrect. Pleadings are stricken in whole conclusions of fact unsupported by specific allegations of fact or in part; only actions are dismissed. The dismissal of a com- when ruling on a section 2-615 motion.20 Be careful not to rely plaint cannot be equated with a striking of a party’s pleading on them when arguing against or defending a section 2-615 and this distinction is a substantive one which has long been motion to dismiss. recognized in Illinois.”12 What attorneys often file, however, and what is gener- Section 2-1005 motions for summary judgement ally the focus of discussion in appellate opinions, is a section 2-615 motion to dismiss an action based on the pleadings. Motion to dismiss v. motion for summary judgment. You Such motions attack the legal sufficiency of a complaint. In must understand the difference between a section 2-615 mo- other words, a section 2-615 motion asks whether the plain- tion to dismiss and a section 2-1005 motion for summary judg- tiff stated a cause of action that would entitle him to relief. ment. The purpose of a motion for summary judgment is to determine if there are any issues of triable fact. It should only be For example, imagine your client has been sued for breach 21 of fiduciary duty. In order for the action to survive a motion granted where no genuine issue of material fact exists. to dismiss, the complaint must plead facts sufficiently show- A section 2-615 motion accepts the facts in the complaint ing that (1) a fiduciary duty existed between the plaintiff and but questions whether a cause of action has been stated. A sec- your client and (2) your client breached the duties imposed tion 2-1005 summary judgment motion, however, assumes a 13 cause of action has been adequately stated but challenges the upon him as a matter of law as a result of the relationship. 22 At this stage, the court will not determine whether a fiduciary facts and asks the court to summarily rule that the facts favor relationship actually existed or whether your client actually the moving party. Further, a summary judgment motion goes breached that relationship, but only whether the facts state a beyond the pleadings and considers the exhibits, “affidavits, ______claim for breach of fiduciary duty if taken as true. 8. 2 Nichols Illinois Civil Practice § 26:1, at 6-7 (rev. 2011). Accepting allegations as true. Note that when ruling on 9. People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 307 (1981). a section 2-615 motion to dismiss, a court must accept all 10. 735 ILCS 5/2-615(a) (West 2012). well-pleaded facts and any reasonable inferences therefrom 11. Knox College v. Celotex Corp., 88 Ill. 2d 407, 422 (1981). as true,14 as well as view the allegations in the complaint in 12. In re Estate of DiMatteo, 2013 IL App (1st) 122948, ¶ 55. 13. Miller v. Harris, 2013 IL App (2d) 120512, ¶ 21. 15 the light most favorable to the plaintiff. Thus, a court will 14. DiMatteo, 2013 IL App (1st) 122948, ¶ 57. deny a section 2-615 motion to dismiss so long as the plaintiff 15. Miller, 2013 IL App (2d) 120512, ¶ 16. pleads any facts that would state some articulable cause of ac- 16. DiMatteo, 2013 IL App (1st) 122948, ¶ 58. 17. See, e.g., Department of Healthcare & Family Services ex rel. Daniels v. tion, “even if that cause of action is not one that the plaintiff Beamon, 2012 IL App (1st) 110541, ¶ 16. intended to assert.”16 18. See Fox v. Heimann, 375 Ill. App. 3d 35, 41 (1st Dist. 2007). Likewise, keep in mind that courts allow liberal amend- 19. Khan v. Deutsche Bank AG, 2012 IL 112219, ¶ 47. 17 20. DiMatteo, 2013 IL App (1st) 122948, ¶ 58. ments to pleadings, giving the plaintiff additional opportuni- 21. Rodman v. CSX Intermodal, Inc., 405 Ill. App. 3d 332, 335 (1st Dist. 2010). ties to sufficiently state his cause of action. However, also be 22. Reynolds v. Jimmy John’s Enterprise, LLC, 2013 IL App (4th) 120139, ¶ 52.

VOL. 102 | june 2014 | illinois Bar Journal | 281 pretrial motions | Continued depositions, and admissions on file,”23 will grant summary judgment in your than a negation of the essential allega- but a section 2-615 motion “considers client’s favor. tions of the cause of action.”29 Stated an- only the facts on the face of the plead- other way, an affirmative matter is a de- ings.”24 Section 2-619(a)(9) motions to fense “outside [of] the complaint that de- Returning to our above hypotheti- dismiss for an ‘affirmative matter’ feats it.”30 It is not merely evidence con- cal, consider the following: the plaintiff’s Statutes of limitations. In contrast to testing facts stated in the complaint. complaint pleaded facts sufficiently es- a section 2-615 motion to dismiss, a mo- One example would be a statute of tablishing a cause of action for breach of tion to dismiss based on section 2-619(a) limitations. Imagine your client was in- fiduciary duty and, therefore, the court (9) of the Code of Civil Procedure admits volved in a car accident in which the denied your client’s section 2-615 mo- the legal sufficiency of a other driver suffered serious injuries. The complaint.25 It also accepts driver sues your client, alleging your cli- all well-pleaded facts and ent’s negligence caused the accident and any reasonable inferences the driver’s resulting injuries. A motion to strike attacks the derived from those facts The driver, however, did not file suit as true.26 Such motions are until four years after the accident oc- complaint, while a motion to used to “dispose of issues of curred. Generally speaking, because Il- dismiss challenges the entire action law and easily proven issues linois provides for a two-year statute of of fact at the outset of liti- limitations on personal injury claims,31 and asks that it be dismissed. gation.”27 your client could file a section 2-619 mo- A section 2-619 motion tion to dismiss, asserting that the passing requests the court to dis- of the two-year statutory period serves as miss the action because “the an affirmative matter barring the plain- tion to dismiss. Assume, however, that claim asserted against de- tiff’s case. your client has deposition testimony and fendant is barred by other affirmative Once the defendant has met its bur- matter avoiding the legal effect of or de- den of proving an affirmative matter an affidavit proving that a fiduciary re- ______lationship between your client and the feating the claim.”28 Thus, the defendant is not denying that a cause of action lies, 23. Howle v. Aqua Illinois, Inc., 2012 IL App (4th) plaintiff did not in fact exist. 120207, ¶ 41. Based on this information, your cli- as with a section 2-615 motion, but is 24. Reynolds, 2013 IL App (4th) 120139, ¶ 52. ent can file a section 2-1005 motion for claiming that some affirmative matter 25. Howle, 2012 IL App (4th) 120207, ¶ 35 (quot- negates the plaintiff’s cause of action ing Winters v. Wangler, 386 Ill. App. 3d 788, 792 (4th summary judgment. Unlike with the sec- Dist. 2008)). tion 2-615 motion to dismiss, the court completely. 26. Brandt v. MillerCoors, LLC, 2013 IL App (1st) will go beyond the complaint, consid- What often troubles attorneys and is 120431, ¶ 12. ering the affidavit and deposition, and important to understand about a section 27. Fink v. Banks, 2013 IL App (1st) 122177, ¶ 18. 28. 735 ILCS 5/2-619(a)(9) (West 2012). determine whether an actual fiduciary 2-619 motion to dismiss is what consti- 29. Asset Acceptance, LLC v. Tyler, 2012 IL App relationship existed. At this stage, the tutes an “affirmative matter.” As the ap- (1st) 093559, ¶ 23. court is no longer bound by the factual pellate court puts it, “[a]n affirmative 30. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. allegations in plaintiff’s complaint and matter encompasses any defense other 31. See 735 ILCS 5/13-202 (West 2012).

Pretrial motions at a glance Purpose What to attach?

§ 2-615 Requesting that a pleading be Nothing; court can only consider Motion to Strike stricken, in whole or in part the pleading’s factual allegations

§ 2-615 Dismissing a cause of action Nothing; court can only consider Motion to Dismiss based on the pleadings the pleading’s factual allegations

Affidavit showing the basis for dismissal Disposing of issues of law and easily § 2-619(a)(9) (e.g., statute of limitations), unless it is proven facts at the outset of litigation Motion to Dismiss apparent on the face of the pleading

§ 2-1005 Determining if there are any Pleadings, exhibits, affidavits, Motion for Summary issues of triable fact depositions, and/or admissions on file Judgment

282 | illinois Bar Journal | june 2014 | VOL. 102 avoiding or defeating the claim, the bur- tions for involuntary dismissal or other ing the confusion altogether. But before den shifts to the plaintiff to establish relief under [s]ection 2-619, and mo- doing so, consult the information above that the defense is unfounded or “that tions for summary judgment under [s] and ensure that you have chosen the proof of the defense would require reso- ection 2-1005 may be filed together as a proper motion. lution of an essential element of mate- single motion in any combination.”39 A rial fact.”32 The plaintiff may satisfy this combined motion must be filed in parts, Think before you file burden by presenting affidavits or other with each part identifying and concern- Failing to file the proper motion could proof. ing only one of the three named sections cost your client time and money and in- Attachments required. Remember and clearly stating the grounds or points vite the possibility of reversal. Both are too, that unlike a section 2-615 motion, relied upon under each section upon situations you want to avoid, whether 40 which does not consider anything out- which it is based. you’re a newly licensed attorney or sea- side of the pleadings, a section 2-619 In the above mentioned opinion, Jus- soned veteran. Before you file, make sure motion to dismiss must be accompa- tice Steigmann appended an epilogue you understand how the key motions dif- nied by an affidavit “showing the basis emphasizing the importance of prop- fer and how they work together. ■ for dismissal unless the matter form- erly combining motions under section ing the basis for dismissal is apparent 2-619.1.41 He warned attorneys against ______on the face of the complaint.”33 Rarely commingling separate claims brought 32. Lawson v. Schmitt Boulder Hill, Inc., 398 Ill. will the defect appear on the face of the under sections 2-615, 2-619, and 2-1005, App. 3d 127, 130 (2d Dist. 2010) (quoting Reilly v. Wyeth, 377 Ill. App. 3d 20, 36 (1st Dist. 2007)). pleadings, so be mindful of the fact that explaining that doing so only serves to 33. In re Estate of Krpan, 2013 IL App (2d) 121424, affidavits almost always need to be at- “complicate and confuse” the court.42 ¶ 21. tached to a section 2-619 motion. Also He also urged trial courts to sua sponte 34. Stover & Co. v. Salvation Army, 2013 IL App (1st) 121366-U, ¶25. note, however, that although a section reject those motions that do not adhere 35. Reynolds v. Jimmy John’s Enterprise, LLC, 2013 2-619 motion accepts the well-pleaded to the statutory requirements of section IL App (4th) 120139, ¶ 53. facts as true, it “does not admit the 2-619.1 and allow defendants to prop- 36. Howle v. Aqua Illinois, Inc., 2012 IL App (4th) 43 120207, ¶ 36. truth of any allegations in [the] com- erly re-file such motions. 37. Id. plaint that may touch on the affir- However, if you are inexperienced 38. Id. ¶ 35. mative matters raised in the [section] in combining section 2-615, 2-619, and 39. 735 ILCS 5/2-619.1 (West 2012). 34 40. Id. 2–619 motion.” 2-1005 motions or simply find it too 41. Howle, 2012 IL App (4th) 120207, ¶¶ 69-73. It is also important to understand daunting, you have the option of sepa- 42. Id. ¶ 72. that even though a section 2-619 mo- rately filing such motions and avoid- 43. Id. ¶ 73. tion to dismiss “shares procedural simi- larities with a [section 2-1005] summary judgment motion,”35 they are distinctly separate motions. In a recent opinion, cheduLe the Justice Steigmann of the fourth district S compared these two motions, explain- time to reLax and pLay... ing that a summary judgment motion is “essentially an answer denying an alle- gation set forth in the complaint.”36 It is it couLd make a fact-based motion that can basically be viewed as asserting the allegations in the you a Better LaWyer. complaint as “not true.”37 A section 2-619 motion, on the other Busy lives are the norm for those who practice law. hand, can be characterized as a “yes, Competition, constant stress, long hours, and high 38 but” motion because it does not deny expectations can wear down the most competent and the factual allegations in the complaint energetic lawyer. but rather responds to those allegations with a defense outside of the complaint. While LAP began as a way for lawyers to deal with alcohol In other words, the defendant is saying, related problems, we now address any issue that interferes “Yes, the facts in plaintiff’s complaint with professional and personal life. Our professional staff are true, but I have a valid defense that and trained volunteers can help – and it’s completely warrants dismissal of the cause of ac- confidential. tion.” Create the time to relax and play. The results may Section 2-619.1 – combining surprise you. motions

Finally, to truly perfect the use of the Toll Free: 800.LAP.1233 motions discussed above, you must un- Chicago Office: 312.726.6607 derstand how to combine them. Section Downstate Office: 618.233.1527 Website: www.illinoislap.org 2-619.1 of the Code of Civil Procedure Email: [email protected] provides that “[m]otions with respect to pleadings under [s]ection 2-615, mo-

VOL. 102 | june 2014 | illinois Bar Journal | 283 A Practitioner’s Guide to Illinois’ Speedy-Trial Statute

Illinois courts have recently clarified the meaning of certain provisions of the speedy-trial statute. This article reviews those decisions and provides guidance for prosecutors and defense attorneys on calculating a defendant’s speedy-trial period.

By Jill Ausdenmoore

284 | illinois Bar Journal | june 2014 | VOL. 102 llinois’ speedy-trial statute contains two cause she was in the midst of a high-risk pregnancy. In its second motion, filed approximately one month key provisions: a criminal defendant in later, the state asserted that another witness, a crime custody must be brought to trial within scene technician, could not attend the scheduled trial 120 days of the day he was brought into because he had been deployed to Afghanistan. Over the defendant’s objections, the trial court custody,I and a defendant out of custody must granted both motions. Together, the two continuances be brought to trial within 160 days of the date totaled more than 60 days. Over 180 days later, the defendant filed a motion to he demands trial.1 Sounds simple, right? dismiss, asserting that the statutory speedy-trial period had expired. Specifically, the defendant argued section 103-5(c) allowed a total of 60 days of continuances in Not so fast. The statute also allows a court, in lim- addition to the 120-day speedy-trial period that ap- ited circumstances, to grant the state a continuance plied to him; thus, according to the defendant, the state of “not more than an additional 60 days.”2 More- was required to bring him to trial within 180 days. As over, any delay “occasioned by the defendant” tolls the 180-day period had passed, the defendant claimed the speedy-trial period.3 So, when must the state bring his case should be dismissed. a defendant to trial? Finding the right answer is cru- The trial court agreed with the defendant, finding cial, as the consequence of miscalculating a defendant’s the state could request multiple continuances under speedy-trial period is certain and severe: the defendant section 103-5(c) but those continuances could total no must be released and the charges against him must be more than 60 days. Because the defendant had been in dismissed.4 pretrial custody for 203 days that were attributable to Fortunately, Illinois courts have recently provided the state, the court dismissed the charges and ordered some guidance. In People v. Lacy, the Illinois Supreme the defendant released. The appellate court affirmed Court held that the portion of the speedy-trial statute the trial court’s decision, concluding the state was lim- allowing the state to seek a continuance of “not more ited to seeking a total of 60 days’ continuances. than an additional 60 days” means more than meets The supreme court granted the state’s petition for the eye.5 At the same time, other Illinois decisions have leave to appeal and reversed the appellate court’s de- outlined what it means for a defendant to “occasion” cision, concluding that section 103-5(c) of the speedy- a delay. trial statute does not limit the state to a total of 60 Turning first to Lacy, this article explores those re- days of continuances.7 The court rejected, however, the cent Illinois decisions to chart a course by which crimi- state’s argument that section 103-5(c) sets “no limits” nal law practitioners can successfully navigate Illinois’ on the number of continuances that can be granted, speedy-trial statute. explaining the state is entitled to only one 60-day con- 8 An “additional 60 days” tinuance for each “item” of material evidence. The supreme court also emphasized that section In Lacy, the defendant was arrested and charged ______with first degree murder and home invasion.6 He re- 1. 725 ILCS 5/103-5(a), (b). mained in custody thereafter. 2. Id. § 103-5(c). 3. Id. § 103-5(a), (b), (f). Before trial, the state filed two motions to continue 4. Id. § 103-5(d); People v. Mayo, 198 Ill. 2d 530, 536 (2002). under section 103-5(c) of Illinois’ speedy-trial statute. 5. People v. Lacy, 2013 IL 113216, ¶¶ 11, 16-17. In its first motion, the state explained that the only 6. Id. ¶ 4. 7. Id. ¶¶ 11, 16-17. eyewitness to the crime could not travel for trial be- 8. Id. ¶ 18.

Jill Ausdenmoore ([email protected]) is a judicial clerk to the Honorable Lisa Holder White of the Illinois Appellate Court, Fourth District. She thanks Michelle Sanders and David Robinson for their feedback and insight.

VOL. 102 | june 2014 | illinois Bar Journal | 285 speedy-trial | Continued

103-5(c) imposes “significant restraints” to renew a previous speedy-trial demand The first district reached a similar on the state’s ability to seek a continu- but then suggest a trial date outside the conclusion in People v. Higgenbotham, ance. For each continuance the state speedy-trial period.16 Recently, the Illi- concluding that where a defendant did seeks, the court opined, it must show that nois Appellate Court held that a defen- not attend her court date but her attor- (1) the evidence sought is material to the dant in custody must object to all con- ney appeared, provided a doctor’s note case, (2) the state exercised due diligence tinuances, not just those that push the (explaining that she was in the hospital), in obtaining the evidence, and (3) rea- trial date outside the 120-day speedy- and requested a continuance under sec- sonable grounds exist to believe that the trial period.17 tion 114-4(i) of the Criminal Code, she evidence will be available at a later date.9 Defendants out of custody. For a de- was “absent.”26 fendant released on bail or on his own Nonetheless, the Higgenbotham court A delay “occasioned by the recognizance, the speedy-trial period held that the same defendant “failed to defendant” does not start to run automatically like it appear” when she missed subsequent Lacy makes clear that, in certain situ- does for a defendant in custody.18 Rather, court dates, despite later providing a note ations, prosecutors can use section 103- the defendant must make a demand for explaining that she remained hospital- 5(c) of Illinois’ speedy-trial statute to get trial – in writing – to commence his 160- ized on those dates. The court concluded more than 60 additional days to prepare day speedy-trial term.19 that to avoid the effect of waiver, the de- for trial. But other portions of the statute A defendant waives his right to a fendant needed to have communicated speedy trial where, by an her illness to the court before she missed affirmative act, he contrib- her court appearance, not afterward.27 utes to an actual delay or To date, the concept of an “absence” agrees to a continuance.20 as expressed in Higgenbotham and The key to navigating the speedy- The second and third dis- Kohler has been applied narrowly, i.e., trial statute for prosecutors is tricts of the appellate court only to situations in which a defendant have held that an agreed cannot appear in court due to illness. Re- to keep close track of which delay by a defendant out cently, the appellate court refused to ac- delays are attributable to the of custody to a trial date cept a defendant’s claim that he was “ab- within the prescribed 160- sent” where he did not appear in court defendant and which are solely day period is not a delay at- because he was in custody in another attributable to the state. tributable to the defendant county.28 because no actual delay of Interestingly, the court indicated that trial occurs.21 it might have been willing to deem A defendant also waives the defendant absent if the record had his speedy-trial demand by shown that he made attempts to contact may provide the state even more prepa- failing to appear at all subsequent court the court, his attorney, or the prosecutor ration time if the speedy-trial period is dates set by the court; the defendant will before his trial date. Thus, the distinc- suspended during any delay “occasioned then have to make another speedy-trial tion between a “failure to appear” and by the defendant.”10 So, when is a delay demand to commence a new speedy-trial an “absence” seems to hinge on whether ______“occasioned by the defendant”? period.22 Of course, a defendant need not 9. Id. Defendants in custody. For a defen- appear at every court date, only those 10. 725 ILCS 5/103-5(a), (b), (f). dant in pretrial custody, the 120-day dates “set by the court.” So, for example, 11. People v. Kliner, 185 Ill. 2d 81, 115 (1998). speedy trial “clock” starts to run auto- a defendant did not waive his speedy- 12. People v. Phipps, 238 Ill. 2d 54, 66 (2010); People v. Cordell, 223 Ill. 2d 380, 388 (2006). matically from the day he is taken into trial demand by failing to appear at a 13. 725 ILCS 5/103-5(a). custody, but it tolls any time a defendant status date for return on a subpoena. 14. Phipps, 238 Ill. 2d at 66. asks for or agrees to a delay.11 A defen- That was a date set by the state, not the 15. Cordell, 223 Ill. 2d at 391-92. 16. People v. Hampton, 394 Ill. App. 3d 683, 689 23 dant can also “agree” to a delay through court. (2d Dist. 2009). inaction – namely, by failing to object Generally, the reason for a defendant’s 17. People v. Wade, 2013 IL App (1st) 112547, ¶¶ 24-29. when the state requests a continuance or failure to appear at a court date is ir- 18. 725 ILCS 5/103-5(b). the trial court sets a date outside the 120- relevant for purposes of speedy trial.24 19. Id. day period.12 However, the appellate court has drawn 20. People v. Zeleny, 396 Ill. App. 3d 917, 920 (2d Dist. 2009). An objection can either be a written a distinction between a failure to appear 21. Id.; People v. LaFaire, 374 Ill. App. 3d 461, 464 demand for trial or an oral demand for – which waives a defendant’s speedy- (3d Dist. 2007). 13 22. See People v. Minor, 2011 IL App (1st) 101097, trial on the record. Although a demand trial demand – and an absence. In Peo- ¶¶ 4, 17 (defendant›s speedy-trial period commenced does not have to be made through the ple v. Kohler, the second district appel- in October, when she filed her second speedy-trial use of any “magic words,” it does have late court found that where a defendant demand). 14 23. People v. Bauman, 2012 IL App (2d) 110544, to include a request for a “speedy” trial. was not personally present at a hearing ¶ 27. Making a basic request for trial be- but his attorney appeared, informed the 24. Minor, 2011 IL App (1st) 101097, ¶ 17. fore any delay is proposed – for instance, court the defendant was ill, and made 25. People v. Kohler, 2012 IL App (2d) 100513, ¶¶ 34-38. during arraignment or at a status hearing an unopposed motion to continue, the 26. People v. Higgenbotham, 2012 IL App (1st) – is insufficient.15 A defendant’s objection defendant did not “fail to appear” but 110434, ¶ 24. 27. Id. ¶¶ 25-27. must be unequivocal; thus, a defendant was “absent.” Thus, he did not waive his 28. People v. Wigman, 2012 IL App (2d) 100736, cannot, for example, state that he wishes speedy-trial demand.25 ¶¶ 53-55.

286 | illinois Bar Journal | june 2014 | VOL. 102 the defendant communicates his absence igating Illinois’ speedy-trial statute for culate the defendant’s speedy-trial term before his court date. prosecutors is to keep close track of from the date of this second demand. What do these recent speedy-trial which delays are attributable to the de- Defense attorneys: speak up! A de- decisions mean for prosecutors and defendant and which are solely attributable fense attorney’s best strategy for deal- fense attorneys, and how can they avoid to the state. It’s easier said than done, but ing with Illinois’ speedy-trial statute can miscalculating a defendant’s speedy-trial miscalculating a defendant’s speedy-trial be summarized in two words: speak up! term? Here are some observations. period is, essentially, giving the defen- If your client is out of custody, make a dant a “get out of jail free” card. speedy-trial demand. If the state seeks a The implications of Lacy For a defendant in custody, prosecu- continuance or the trial court sets a trial Prosecutors: Pay attention to Lacy’s tors should ask themselves the following date outside the speedy-trial period, ob- limitations. For prosecutors, Lacy is a questions each time a delay occurs. ject. double-edged sword. On the one hand, 1. Did the defendant suggest or agree Illinois courts have made clear that Lacy permits multiple 60-day continu- to the delay? If so, it is attributable to the the speedy-trial provisions are to be used ances – no doubt a helpful tool in a defendant. as a sword to bring a defendant’s case 2. Did the defendant agree (or fail to to trial, not as a shield to be used after object) to a trial date within the fact.31 Thus, a defense attorney does the 120-day period? If so, his or her client a disservice by lying in the delay is attributable to the weeds, sitting idly by in the hopes the defendant. that the client won’t be brought to trial A defense attorney’s best 3. Did the defendant in time and will have his conviction re- strategy for dealing with Illinois’ agree (or fail to object) to versed on appeal. Worse yet, the failure a trial date outside the 120- to speak up could result in an ineffective- speedy-trial statute: speak up! day period? If so, the delay assistance-of-counsel claim. is attributable to the defendant. Conclusion Likewise, to calculate Calculating a defendant’s speedy-trial complicated case involving numerous the 160-day period that applies to defen- period is a tedious and cumbersome witnesses and mountains of evidence.29 dants out of custody, prosecutors should project at best. Thankfully, Illinois courts On the other hand, however, Lacy’s al- ask the following questions. have endeavored to make the process a lowance of only one 60-day continuance 1. When did the defendant make a little easier. By reviewing Lacy, paying per evidentiary “item” means that if your written speedy-trial demand? This is attention to other recent decisions con- star witness cannot come to trial after when the speedy-trial term begins. cerning the speedy-trial statute, and fol- the court has already granted you a 60- 2. Did the defendant appear at all lowing the guidelines set forth in this day continuance to obtain that witness’s dates set by the court after making a article, both prosecutors and defense at- testimony, you’re out of luck. demand? If so, he has not waived his torneys can avoid common speedy-trial But all is not lost. The Lacy dissent speedy-trial demand. pitfalls. ■ offers two solutions in that situation: 3. Was a defendant who did not ap- ______pear “absent” as expressed in Higgen- (1) seek a plea bargain with the defen- 29. See People v. Lacy, 2013 IL 113216, ¶ 31 dant; or (2) proceed to trial without the botham and Kohler? If so, the defendant (Garman, J., dissenting) (pointing out that, under the witness’s testimony.30 Moreover, if the did not waive his speedy-trial demand. majority’s interpretation, the State may be able to obtain multiple continuances “[i]n a complex case with defendant is in pretrial detention, you 4. If the defendant failed to appear many witnesses and much evidence”). can seek an order lowering the defen- and was not “absent,” did he make a sec- 30. Id. ¶ 35. dant’s bond or releasing the defendant ond written speedy-trial demand? Cal- 31. People v. Cordell, 223 Ill. 2d 380, 390 (2006). on his own recognizance, thereby ex- tending the speedy-trial period from 120 to 160 days. Defense attorneys: make a clear record. For defense attorneys, Lacy high- Need Wisconsin Local lights the importance of making a clear or Co-Counsel? record in the trial court. Be sure the record shows the precise “item of evi- Let our litigation experience work for you. dence” for which the state sought a con- ◆ Wisconsin State & Federal Courts tinuance and that your client has ob- Patrick J. Schott ◆ Filing Suit, Discovery, Trials, Appeals April R. Barker jected to the continuance. Doing so will Fmr. Wis S. Ct. Clerk Harvard Law School ‘95 help preclude the state from obtaining 25 years experience ◆ AV ® Preeminent™ Peer Review Rated Licensed in WI and IL a second continuance for the same evidence at a later date.

Tips from other Illinois decisions SCHOTT, BUBLITZ www.sbe-law.com & ENGEL s.c. 262-827-1700 P rosecutors: keep track of delays. Attorneys at law Lacy aside, the key to successfully nav-

VOL. 102 | june 2014 | illinois Bar Journal | 287 When a patient files a medical malpractice complaint, the defendant has a powerful incentive to raise the patient’s contributory negligence as an affirmative defense. How does that work? What constitutes contributory negligence? This article explains the basics.

Blaming the Patient: Medical Malpractice and Contributory Negligence

patient who files a medical malpractice lawsuit alleges that a medical professional is responsible for causing his or her injury or illness. By filing a contributory negligence affirmative defense, the medical professional contends that the patient shares the blame for Athe injury or illness. This article explores several issues prac- The historical evolution of titioners should consider when a contribu- contributory negligence tory negligence defense is raised in a medical Illinois’ law of contributory negligence By Robert P. Vogt malpractice case. Specifically, it discusses (1) has evolved over time. Initially, Illinois’ com- the historical evolution of contributory negli- mon law held that a patient had to prove he gence, (2) the type of conduct found to con- or she was not guilty of contributory negli- stitute contributory negligence, (3) the low gence before bringing a med-mal claim1 or level of proof required of defendants, (4) how ______beneficiaries can be contributorily negligent, 1. Mueller v. Sangamo Construction Co., 61 Ill. 2d 441, and (5) the implications of the patient’s fail- 448 (1975). ure to mitigate.

Robert P. Vogt is a partner with Weldon-Linne & Vogt.

288 | illinois Bar Journal | june 2014 | VOL. 102 the claim was barred.2 The harshness of tient refills prescriptions without a phy- his left inferior alveolar nerve during oral this approach eventually led the Illinois sician’s approval, takes medications too surgery.32 In a subsequent malpractice Supreme Court to swing to the opposite frequently, is insufficiently physically ac- lawsuit, the dentist asserted that the pa- end of the spectrum. tive, refuses to reduce a medication regi- tient’s poor oral hygiene prior to his sur- Alvis v. Ribar3 reflects that revised men, takes long automobile trips in spite gery, his refusal to allow an x-ray to be approach – a pure comparative negli- of warnings not to do so, and fails to re- taken, and his failure to secure a second gence system. Under it, the jury simply port the development of pain.13 opinion prior to the surgery amounted to compares the negligence of the patient It can also be raised with that of the medical professional where a patient refuses to and assigns the appropriate percentage undergo recommended sur- of responsibility to each party. With pure gical procedures,14 fails to comparative negligence, a patient can be report symptoms,15 misses It could be contributory negligence 98 percent responsible for causing her a follow-up exam,16 leaves when a patient refills prescriptions own injuries and still recover the 2 per- the hospital against the cent of damages allegedly caused by the physician’s advice,17 com- without a physician’s approval, medical professional’s negligence.4 mits suicide by jumping out takes medications too frequently, This second approach, however, was of a window,18 gets out of abandoned, and Illinois now uses a third bed against her doctor’s or- or fails to report pain. approach – a legislatively enacted, mod- ders,19 refuses to accept a ified comparative negligence system.5 blood transfusion,20 fails to Under Illinois’ current rule, a medical obtain medical care in a 21 malpractice patient may recover for any timely manner, fails to reg- ______injuries caused by a medical profession- 22 ularly take prescribed medications, mis- 2. Id. al’s negligence as long as the jury finds informs her doctor about the medications 3. Alvis v. Ribar, 85 Ill. 2d 1, 27 (1981). the patient is less than 50 percent respon- she is taking,23 fails to follow a doctor’s 4. See Marcin v. Kipfer, 117 Ill. App. 3d 1065 (4th Dist. 1983). sible for causing the injury. Otherwise, he instructions to inform the doctor of cer- 5. 735 ILCS 5/2-1116 (2013). or she is barred from obtaining recovery. tain physical changes,24 refuses to accept 6. Id. treatment,25 fails to follow a doctor’s ad- 7. Gruidl v. Schell, 166 Ill. App. 3d 276, 280 (1st Dist. 1988). Conduct that constitutes 26 vice regarding a follow-up exam, fails to 8. Id. contributory negligence undergo a medical procedure,27 refuses to 9. Krklus v. Stanley, 359 Ill. App. 3d 471, 480 (1st participate in therapy,28 fails to seek treat- Dist. 2005). Illinois follows the longstanding rule 10. Pantaleo v. Our Lady of the Resurrection Medi- that contributory negligence can be ment for her medical condition or in- cal Center, 297 Ill. App. 3d 266, 282 (1st Dist. 1998). raised as a defense in medical malprac- jury,29 or whose intoxication contributes 11. 735 ILCS 5/2-613(d) (2013). 30 12. Krklus, 359 Ill. App. 3d at 480; but see Schmidt 6 to cause the patient’s injury. tice cases. As members of a modern so- v. Klinman, 2005 U.S. Dist. LEXIS 31206 *2 (N.D. Ill. ciety, patients have an obligation to take In each of these cases, the medical 2005) (holding that a patient’s “actions subsequent to care of themselves. Recognizing this, the professional presented evidence that an alleged tortious conduct can constitute the basis for act or omission by the patient contrib- contributory negligence”). law imposes a duty on every person to 13. Witherell v. Weimer, 118 Ill. 2d 321, 339 (1987). exercise that degree of care a reasonably uted to cause the injury at issue in the 14. Asher v. Stromberg, 78 Ill. App. 2d 267, 273 (1st prudent person would take to avoid in- patient’s lawsuit. Because the patient’s Dist. 1966). own behavior was tied to the injury that 15. Aimonette v. Hartmann, 214 Ill. App. 3d 314, jury or illness under the same or similar 321 (2d Dist. 1991). circumstances.7 Contributory negligence was the basis of the patient’s claim, the 16. Id. occurs when a patient breaches that duty medical professional was allowed to ask 17. Bartimus v. Paxton Community Hospital, 120 Ill. the jury to assess the patient’s percentage App. 3d 1060, 1070 (4th Dist. 1983). by failing to exercise appropriate care for 18. Biundo v. Christ Community Hospital, 104 Ill. his or her own safety.8 of responsibility for causing his or her App. 3d 670, 674 (1st Dist. 1982). Failure to exercise reasonable care in- injury. Whether the patient did or failed 19. Brady v. McNamara, 311 Ill. App. 3d 542, 551 (1st Dist. 2000). cludes behavior that contributes to caus- to do the acts in question and, if so, to 20. Corlett v. Caserta, 204 Ill. App. 3d 403, 415 (1st ing the injury at issue in the patient’s law- what extent the patient’s own behavior Dist. 1990). suit. Each case is fact specific,9 and the caused or contributed to the patient’s in- 21. Lebrecht v. Tuli, 130 Ill. App. 3d 457, 476 (4th Dist. 1985). question of contributory negligence is or- jury, were questions of fact for the jury. 22. Krklus v. Stanley, 359 Ill. App. 3d 471, 480 (1st dinarily a question of fact for the jury.10 Causal connection between negligence Dist. 2005). The medical professional must raise and injury. For evidence of a patient’s 23. Id. 24. Moller v. Lipov, 368 Ill. App. 3d 333, 346 (1st a patient’s contributory negligence as an contributory negligence to be admissi- Dist. 2006). affirmative defense.11 Illinois courts rec- ble, there must be a causal connection 25. Newell v. Corres, 125 Ill. App. 3d 1087, 1090 ognize that a contributory negligence in- between the patient’s alleged negligence (1st Dist. 1984). 26. Gill v. Foster, 157 Ill. 2d 304, 313 (1993). struction is appropriate when a medical and the injury at issue. The patient’s al- 27. Fisher v. Slager, 201 Ill. App. 3d 480, 488 (1st professional presents a theory in which leged negligence is not relevant unless it Dist. 1990). the patient’s own negligence “precedes caused, in whole or in part, the injury 28. Id. 29. Smith v. Perlmutter, 145 Ill. App. 3d 783, 788 or is contemporaneous with” the profes- for which the patient is seeking recovery. (3d Dist. 1986). sional’s alleged malpractice.12 “Negligence in the air, so to speak, will 30. See Brown v. Decatur Memorial Hospital, 51 Ill. Examples of contributory negligence. not do.”31 App. 3d 1051, 1053 (4th Dist. 1977). 31. Renslow v. Mennonite Hospital, 67 Ill. 2d 348, Illinois courts have held that contribu- In Owens v. Stokoe, for example, an 355 (1977) (citing Pollock, Torts 361 (14th Ed. 19939)). tory negligence may occur where the pa- unconscious patient suffered an injury to 32. Owens v. Stokoe, 115 Ill. 2d 177 (1986).

VOL. 102 | june 2014 | illinois Bar Journal | 289 medical malpractice | Continued contributory negligence. the physician sought to have the jury in- injury at issue. Without such evidence of In rejecting these defenses, the Illinois structed that the patient was contribu- proximate cause, the necessary connect- Supreme Court recognized that the alle- torily negligent for failing to notify the ing link between the patient’s conduct gations, even if true, had no causal con- physician of a physical change that she and the injury at issue is absent. nection to the patient’s resulting nerve admittedly noticed in her breasts during injury. Since the patient was unconscious April 1980. Her breast cancer was diag- The (low) level of proof required during the surgical procedure and noth- nosed in May 1980. to get an instruction ing he did or failed to do caused the in- According to the physician, since the Because contributory negligence is jury at issue in his lawsuit, the link be- patient was alleging a delay in diagnos- an affirmative defense to the patient’s tween the patient’s alleged negligence ing breast cancer, any delay due to the claim, the medical professional carries and the resulting injury was absent. patient’s own behavior (i.e., from April the burden of proof.34 Illinois courts have to May 1980) was con- ruled that a contributory negligence in- tributory negligence and struction is appropriate where there is should be considered by “some” evidence of a patient’s negli- the jury. The Barenbrugge gence,35 where the evidence supporting The patient’s alleged negligence court found, however, that the medical professional’s contributory no evidence showed that negligence defense is “slight,”36 and when is not relevant unless it helped if the patient had been ex- there is “any evidence” of contributory cause the injury for which the amined during April rather negligence on the part of the patient.37 than May 1980 her out- These holdings are consistent with the patient is seeking recovery. come would have been different. ______The defendants in both 33. Barenbrugge v. Rich, 141 Ill. App. 3d 1046 (1st Dist. 1986). Owens and Barenbrugge 34. Casey v. Baseden, 111 Ill. 2d 341, 347 (1986). raised conduct by the pa- 35. Moller v. Lipov, 368 Ill. App. 3d 333, 346 (1st Likewise, in Barenbrugge v. Rich, a tient that was arguably negligent. How- Dist. 2006). patient sued her physician for failing to ever, neither defendant submitted evi- 36. Bartimus v. Paxton Community Hospital, 120 Ill. App. 3d 1060, 1070 (4th Dist. 1983). diagnose her breast cancer during an dence of a causal connection between 37. Gruidl v. Schell, 166 Ill. App. 3d 276, 281 (1st exam in January 1980.33 In response, the patient’s alleged negligence and the Dist. 1988).

Sponsored by and for members of the Young Lawyers Division Announcing the 2015 $3,500 Lincoln Award Legal in prizes! Writing Contest

The LIncoLn AwArd conTesT offers you a chance to Your manuscript will be rated by a distinguished review panel enhance your reputation as a lawyer and earn cash at the of practicing lawyers, law professors or judges. same time. And whether your manuscript is a winner or not, it will be considered for publication in the Illinois Bar Journal. The ALA Contest is open to all ISBA lawyer members under 36 years of age on July 1, 2014 or admitted to the bar fewer than five years as of that date. ISBA law student members wInners receIve: who are admitted to the bar on or before dec. 31, 2014, are 1st place – $2,000, 2nd place – $1,000, 3rd place – $500. also eligible to enter. Each winner will also get an attractive Lincoln Award plaque. All participants must file a notice of intent to enter the competition by July 15, 2014. contest rules and an entry form are at www.isba.org/ibj

If you have questions, contact Jean Fenski at [email protected] 217/525-1760 or 800/252-8908

290 | illinois Bar Journal | june 2014 | VOL. 102 Illinois Supreme Court’s Pedrick stan- to reduce or mitigate those injuries he or tient herself causes by her own post-mal- dard.38 Under Pedrick, if there is any evi- she has already suffered.44 practice carelessness. dence of contributory negligence on the In this respect, the rule on mitiga- patient’s part, a question of fact is cre- tion imposes a continuing duty on an al- Conclusion ated and the issue of the patient’s con- ready injured patient to exercise reason- Illinois’ modified contributory negli- tributory negligence must be submitted able diligence and ordinary care so the gence system allows for a jury to decide to the jury. Courts have specifically ruled patient does not worsen any injuries al- whether a patient’s conduct helped cause that in connection with medical mal- ready allegedly caused by a medical pro- the injury or illness at issue in the pa- 45 practice cases, the Pedrick standard is fessional. Illinois law imposes a duty on tient’s medical malpractice lawsuit. Be- “used to determine whether the issue of the patient “to exercise reasonable dili- cause such a defense reduces, and can plaintiff’s contributory negligence should gence and ordinary care in attempting to even eliminate, a medical professional’s 39 be submitted to the jury.” minimize his damages after an injury has exposure, the contributory negligence 46 been inflicted.” defense will continue to arise in medical A beneficiary’s contributory An instruction about a patient’s fail- malpractice cases. negligence can also limit ure to mitigate is appropriate whenever For these reasons, it is important to recovery a patient’s alleged negligence follows be familiar with the issues that may arise Illinois law also holds that the benefi- that of the medical professional. A jury when the patient’s acts or omissions be- ciary of an estate is contributorily negli- can hold a patient responsible for fail- come the focus of an affirmative de- gent whenever his or her negligence con- ing to mitigate whenever (1) the patient fense. ■ tributes to cause the injury or death for commits a careless act or omission after he or she has already suffered an injury ______which the estate is seeking recovery.40 or illness caused by medical malpractice 38. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d Like the analysis employed when assess- 494, 510 (1967). ing a patient’s contributory negligence, and (2) the act or omission worsens the 39. Gruidl, 166 Ill. App. 3d at 281. 47 40. Haist v. Wu, 235 Ill. App. 3d 799, 816 (1st Dist. the inquiry focuses on whether an act or patient’s condition. Note that Illinois courts recognize 1992); see also Illinois Pattern Jury Instruction B31.08. omission by the beneficiary helped cause 41. Pantaleo v. Our Lady of the Resurrection Medical the injury and/or death at issue. that mitigation is a defense used solely to Center, 297 Ill. App. 3d 266, 282 (1st Dist. 1998). 42. Biundo v. Christ Community Hospital, 104 Ill. Illinois courts have held that parents reduce, not eliminate, a patient’s alleged damages.48 Because the premise of a miti- App. 3d 670, 674 (1st Dist. 1982); Haist, 235 Ill. App. can be found to be contributorily neg- 3d at 816. ligent for injuries suffered by their chil- gation defense is that the patient already 43. Brady v. McNamara, 311 Ill. App. 3d 542, 549-50 has suffered an injury due to medical (1st Dist. 2000). dren41 and that spouses can likewise be malpractice, it only addresses whether 44. Tsoukas v. Lapid, 315 Ill. App. 3d 372, 377 (1st held contributorily negligent where the Dist. 2000); see also Illinois Pattern Jury Instruction the patient’s conduct exacerbated the 105.08 (2013). complaining spouse’s own carelessness 45. Brady, 311 Ill. App. 3d at 547. is causally connected to the beneficia- malpractice-caused injuries. Illinois law holds that a medical professional is not 46. Malanowski v. Jabamoni, 332 Ill. App. 3d 8, 13- ry’s injury or death.42 Simply put, when 14 (1st Dist. 2002). responsible for any worsening or aggra- 47. Brady, 311 Ill. App. 3d at 549-550. a family member seeks to recover for 48. Id. an injury to, or death of, another family vation of the patient’s injury that the pa- member, the family member seeking recovery is not immune from Illinois’ contributory negligence principles.

After the injury: The failure to mitigate A patient’s contributory negligence is similar to but different from his or her failure to mitigate. Mitigation focuses on damage caused by the patient’s conduct after he or she has suffered an injury due to a medical professional’s alleged malpractice.43 When a patient’s carelessness occurs before or concurrently with the medical professional’s alleged negligence, the general rules of contributory negligence apply. The patient can recover as long as the jury finds he or she is not more than 50 percent responsible for the claimed injuries. However, once medical malpractice is 1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173 complete (i.e., once an injury is suffered Telephone: 847-519-3600 Fax: 800-946-6990 by the patient), comparative negligence Toll-Free: 800-844-6778 principles no longer apply. Instead, the www.landexresearch.com patient’s duty is to take appropriate steps

VOL. 102 | june 2014 | illinois Bar Journal | 291 to rt Law Referral Directory

chicago Southern Law Office of Law Office of Joan M. Mannix MARY BETH • Concentrating in State and Federal Civil WELCH COLLINS Appellate Practice • Twenty-five years of experience in Personal Injury/Wrongful Death - representing clients in appeals involving all Family Law - Criminal Defense/DUI - areas of tort law Collection - Probate/Wills/Estates 312-521-5845 130 E. North Avenue, Flora, Illinois 62839 Phone: 618/662-5900 E-mail: [email protected] 135 South LaSalle Street, Suite 2200 EMAIL: [email protected] Chicago, IL 60603 WELCHCOLLINSLAW.COM

ROMANUCCI & BLANDIN, LLC TOTAL CARE FOR THE CATASTROPHICALLY INJURED Handling every aspect of your case. family law Referral Directory Personal Injury in the September Medical Malpractice Illinois Bar Journal Nursing Home Negligence Advertising Deadline: August 1 Don’t miss this opportunity to let your fellow ISBA member attorneys know you are available to accept their Family Law referrals. ______Rates start as low as $136 33 N. LaSalle St. 20th Floor Chicago, IL 60602 ______888-458-1145 • 312-458-1000 To place your ad contact rblaw.net • [email protected] Nancy Vonnahmen 800-252-8908 or e-mail [email protected]

By Andrew N. Plasz

t’s clear under Illinois law that a judgment creditor may take ducted from a debtor’s wages to satisfy a judgment.1 Under the statute, “wages” no more than 15 percent of a judgment debtor’s wages through are defined as “any hourly pay, salaries, a wage deduction order. When a judgment debtor earns a high commissions, bonuses, or other compen- salary, owns no non-exempt assets, and refuses to satisfy the sation owed by an employer to a judgment debtor”2 and the “maximum wages Ijudgment, creditors are understandably frustrated. subject to collection under a deduction order shall not exceed 15% of the gross There may be hope for judgment through means other than a wage deduc- amount paid for that week.”3 (Note that federal law provides for a higher limit of creditors in this situation, however. This tion order. ______article looks at some of the arguments 1. 735 ILCS 5/12-801 et seq. they can make to lay claim to part of The Illinois statutory framework 2. Id. § 12-801. 3. California-Peterson Currency Exchange, Inc. v the remaining 85 percent of such a high The Illinois statute on wage deduc- Friedman, 316 Ill. App. 3d 610, 613 (1st Dist. 2000) income judgment debtor’s gross wages tions provides that money can be de- (citing 735 ILCS 5/12-803).

Andrew N. Plasz is with Crowley Barrett & Karaba, Ltd. in Chicago, where he concentrates his practice in commercial and banking litigation, including lender liability defense, commercial workouts, commercial foreclosures, employment disputes, and shareholder and partnership disputes. He received his J.D. from Washington University in St. Louis.

294 | illinois Bar Journal | june 2014 | VOL. 102 Few things are more frustrating than winning a judgment but struggling to collect it while the high-income defendant lives a lavish lifestyle. This article argues that wages used for investments or to purchase luxuries should be subject to collection by a judgment creditor.

up to 25 percent of disposable earnings lection per se. The section does not speak debtor’s wages a judgment creditor can per week.4) in terms of exemptions, and none of the take before the wages are paid to the Section 2-1402 of the Code of Civil Illinois exemption statutes contains an debtor.”14 Procedure, which provides for citations exemption for wages.8 However, sec- In In re Thum, the U.S. Bankruptcy to discover assets (the “citation statute”), tion 2-1402(k-5) of the citation stat- Court held that section 12-803 does not states that a court may ute, which was enacted after the Wage create an exemption for accrued but un- compel the judgment debtor to pay to Deduction Act, refers to “exemptions paid wages.15 The Thum court reasoned the judgment creditor or apply on the 9 allowed by Section 12-803.” Section that “construing the statutes as creating judgment, in installments, a portion of 2-1402(c)(2) also refers to wages “con- a general exemption for accrued and un- his or her income, however or when- sidered exempt” under the wage deduc- ever earned or acquired, as the court may paid wages would lead to the anomalous deem proper…provided that the judgment tion statute. result that wages, exempt while unpaid, debtor shall not be compelled to pay in- A number of federal cases interpret- would loose their exempt status upon re- come which would be considered exempt ing Illinois law have held that the 15 ceipt by the employee.”16 percent limit in section 12-803 does as wages under the Wage Deduction Stat- The court went on to say there was ute.5 not create an exemption. In Wienco v. no basis to suggest that section 12-803 Section 2-1402(k-5) of the citation Scene Three, the seventh statute also references the wage deduc- circuit held that Illinois law tion statute and states that “if the court “does not limit the amount determines that any property held by of earnings that may be a third party respondent is wages…the made available to a judg- Creditors can try to argue that the court shall…enter such necessary and ment creditor based solely 15 percent limit on wage deduction proper orders…including…the granting on the percentage of earn- of the statutory exemptions allowed by ings requested” and labeled orders does not make the other 85 Section 12-803.”6 a debtor’s argument to the percent “exempt” from collection. contrary “absurd.”10 Getting at the 85 percent The U.S. Bankruptcy What are “wages” under the statute? Court for the Northern Creditors can attempt to argue that the District of Illinois found definition of “wages” in the wage deduc- in In re Koeneman, that for purposes of “provides an exemption for wages that tion statute does not allow debtors to federal bankruptcy law, the wage deduc- have been paid to an employee which tion statute does not allow insolvent per- place the bulk of their wage income – are held in the form of cash or a bank sons to “accumulate and shelter funds in the 85 percent – off limits. The definition deposit.”17 It reasoned that an “insolvent of “wages” is “any hourly pay, salaries, a bank account simply because they de- commissions, bonuses, or other compen- rive from wages.”11 The court stated that ______sation owed by an employer to a judg- the “Illinois Legislature is quite capable 4. 15 U.S.C. § 1673(a)(1). 5. 735 ILCS 5/2-1402(c)(2). 7 ment debtor.” The argument here is that of creating a general [bankruptcy] ex- 6. Id. § 2-1402(k-5). once the “employer” pays the judgment emption when it chooses to and has not 7. Id. § 12-801. previously relied on implication to ac- 8. Id. § 12-901 et seq.; id. § 12-1001. debtor, the wages are no longer “owed” 9. Id. § 2-1402(k-5). 12 and thus no longer fall within the defini- complish this.” 10. Wienco v. Scene Three, 29 F.3d 329, 330 (7th tion of “wages” under the statute, mak- Similarly, the court in In re Jokiel Cir. 1994). 11. In re Koeneman, 410 B.R. 802, 827 (Bankr. N.D. ing them available to the creditor. cited Koeneman and found that “once Ill. 2009). Does the 15 percent limit in the wage wages are received or deposited into a 12. Id. at 826. deduction statute constitute an exemp- bank account” they are no longer pro- 13. In re Jokiel, No. 09-B-27495, 2012 WL 33246 at *4 (Bankr. N.D. Ill. 2012). tion? As the law could be considered tected and “creditors can collect on them 14. In re Radzilowsky, 448 B.R. 767, 769 (Bankr. unclear, creditors can try to argue that through a citation proceeding or other N.D. Ill. 2011). the 15 percent limit on wage deduction form of process.”13 In other words, the 15. In re Thum, 329 B.R. 848, 854 (Bankr. C.D. Ill. 2005). orders in section 12-803 does not make wage deduction statute “simply puts a 16. Id. the other 85 percent “exempt” from col- temporary limit on how much of the 17. Id. at 854.

VOL. 102 | june 2014 | illinois Bar Journal | 295 luxury tax | Continued person may not accumulate and shelter collection.21 The U.S. Bankruptcy Court wages retain their exempt character only funds in a bank account simply because for the Northern District of Illinois in In so long as they retain the “quality of they derive from wages.”18 re Mayer also came to this conclusion,22 moneys”26 – i.e., as long as they retain Therefore, once a judgment debtor though the Mayer court did not address their liquidity. “deposits his wages into a bank ac- whether wages lose their exemption after In Auto Owners Insurance v Berk- count…the funds become fair game for they have been paid. In Johnson v. Ford shire, the Illinois Appellate Court held creditors.”19 The Thum court then held Motor Credit Co., the bankruptcy court that funds distributed from a retirement held that the provision lim- plan do not lose their exempt character iting wage deductions to 15 upon distribution, with certain limits. “A percent of a debtor’s gross debtor may trace the exemption from weekly pay is “an exemp- the exempt asset to the liquid form, but The creditor could argue that tion statute” that “protects the concept of tracing is not limitless. ______“exempt” wages remain exempt debtors and their families, not creditors.”23 18. Id. at 855. 19. Id. only as long as they are being spent Note that courts have 20. Id. at 854. held the federal limit on 21. California-Peterson Currency Exchange, Inc. v. on necessities rather than luxuries. wage garnishments is not Friedman, 316 Ill. App. 3d 610, 619 (1st Dist. 2000) (“defendant may exempt 85% of that compensation an exemption, at least for from collection pursuant to Section 12-803 of the Wage bankruptcy purposes.24 Deduction Statute”). 22. In re Mayer, 388 B.R. 869 (Bankr. N.D. Ill. 2008). Courts have also held that 23. Johnson v. Ford Motor Credit Co., 57 B.R. 635, that section 12-803 has “no relevance to the federal limit does not protect funds 639 (Bankr. N.D. Ill. 1986). the exemptions that a debtor may claim deposited in bank accounts.25 24. See, e.g., Smith v. Frazier, 421 B.R. 513, 518 (S.D. 20 Ill. 2009). in a bankruptcy case.” The “quality of moneys” test. Even if 25. See, e.g., Usery v. First National Bank of Arizona, On the other hand, at least one Illinois a court holds that the 15 percent limit 586 F.2d 107 (9th Cir. 1978). court has stated that the wage deduction on wage deductions effectively makes 26. For a general discussion of tracing, see, Darrell W. Dunham, Tracing the Proceeds of Exempt Assets statute’s 15 percent limit results in the the other 85 percent of wages exempt, in Bankruptcy and Non-Bankruptcy Cases, 3 S. Ill. U. remaining 85 percent being exempt from the creditor could argue that “exempt” L.J. 317 (1978).

ILLINOIS STATE BAR ASSOCIATION YOUNG LAWYERS DIVISION ♠ ♥ ♣ ♦ 2014

The ISBA and Young Lawyers Division would like to thank our 2014 sponsors and attendees, along with our host, Hard Rock Hotel, for making this year’s YLD Soiree such a successful event! This year we raised over $2,500 for the IBF/YLD Children’s Assistance Fund. The Children’s Assistance Fund provides funding to organizations throughout Illinois that provide legal assistance to children, open/maintain children’s waiting rooms in courthouses, work to reduce recidivism of juveniles, and/or work to reduce the incidents of domestic violence in families with children. The Children’s AssistanceSoiree Fund has distributed grants in excess of $294,000 over the past fifteen years, due, in large part, to the widespread support and participation in our annual fundraisers. Once again, thank you for your generosity.

Thank You To our SponSorS PLATINUM SPONSOR GOLD SPONSOR SILVER SPONSOR ISBA Mutual Insurance Company Avery Camerlingo & Kill, LLC Attorney’s Title Guaranty Fund, Inc. Davi Law Group Greensfelder Attorney at Law Miroballi Durkin & Rudin, LLC Law Offices of Nathan Lollis, LLC Simmons Firm Mahoney, Silverman & Cross, LLC Timothy and Teresa Kelly

296 | illinois Bar Journal | june 2014 | VOL. 102 ______So long as the debtor continues to hold of these theories to reach a debtor’s 27. Auto Owners Insurance v. Berkshire, 225 Ill. and to use the funds for the support of money in a bank or brokerage account App. 3d 695, 698-99 (2d Dist. 1992). the debtor and his family, the exemption has a straightforward remedy. The credi- 28. Id. at 699 (quoting Philpott v. Essex County statutes require the exemption of funds tor serves a citation to discover assets on Welfare Board, 409 U.S. 413, 416 (1973)). 29. Id. at 698-99. 27 traceable from exempt payments.” The the third party holding the funds (i.e., the 30. Libby Furniture & Appliance Co. v. Nabors, 86 court quoted the decision of the U.S. Su- bank or brokerage house) and moves for Ill. App. 2d 381, 385 (1st Dist. 1967). 31. See, e.g., California-Peterson Currency Ex- preme Court in Philpott v Essex County turnover. change, Inc. v Friedman, 316 Ill. App. 3d 610, 618 Welfare Board and stated that “exempt But for a high-income debtor with (1st Dist. 2000) funds [would] remain exempt so long a lavish lifestyle who isn’t stockpiling 32. Bliss v. Smith, 78 Ill. 359 (1875) (citing Ill. Rev. 28 Stat., chap. 62, sec. 14). as they retain the ‘quality of moneys’.” money in an account, the creditor will 33. Id. Using this logic, creditors could argue (Continued on page 301) 34. Dunham, supra note 26, at 344. that funds in excess of what a debtor needs to support himself and his family should be subject to turnover. The opinion in Auto Owners Insurance indicates that “exempt” funds must be used for “support” of the debtor and his family to retain their exempt character.29 Creditors could argue that, say, a $4,000 monthly rental payment for a luxury apartment is excessive and not required for “support.” Thus, the funds used for these payments have lost the “quality of moneys” and are therefore not exempt. Public policy. On its face, the “public policy” articulated by the courts protects judgment debtors. The Illinois Ap- pellate Court held in Libby Furniture & Appliance Co. v. Nabors that it “is obvious that in enacting the legislation relat- ing to wage deductions, the General As- sembly intended that the procedures be simplified, the costs held to a minimum, and the employee be given every possible protection against harassment.”30 This policy is mentioned in other decisions.31 As far back as 1875, the Illinois Supreme Court construed section 14 of the Garnishment Act, which then provided that the “wages…of a defendant, being the head of a family and residing with the same, to an amount not exceed- ing $25, shall be exempt from garnishment.”32 The court held that this “statute was enacted for a humane purpose: for the benefit of the debtor’s family, as well as himself, and should receive a fair and liberal construction that it may effectu- ate the beneficent object the legislature had in view.”33 It is difficult to see, however, what “humane purpose” is served by allowing a high-income judgment debtor to spend lavishly on luxury items while he refuses to satisfy his debts. As one commenta- tor has noted, “[n]o purpose is served by exempting yachts, sports cars and other frills.”34

Practical issues A creditor who successfully uses one

VOL. 102 | june 2014 | illinois Bar Journal | 297 Best of discussions

Substitute Service of Process – Like Father, Like Son? Is substitute service of process valid if it’s on the defendant’s father, in the defendant’s driveway? Here’s an answer gleaned from the ISBA litigation discussion group.

ISBA discussion groups let you pose questions to and share information with lawyers from Chicago to Cairo. Join at www.isba.org/discussions. Substitute service on the defendant’s the doorman of the defendant’s apartment building father in the defendant’s driveway – only when the intended recipient is intentionally re- is it valid? fusing to come to the lobby to accept service. See Harrell v. Bower Motors, Inc. 2004 WL1745758 David W. Schopp, Aurora. A defendant can be (N.D. Ill. July 30, 2004). served at his usual place of abode by leaving a copy Keep in mind: with a member of the family or person at least 13 • The server must inform the person served years old residing there. Case law says that the fam- of the contents of the summons. Tomaszewski v. ily member need not reside there. George, 1 Ill. App. 2d 22 (1st Dist. 1953). But what are your thoughts on this: Defendant’s • It is enough to identify the documents (i.e., a father (who does not reside with defendant) was summons and complaint), state from which court served while in his car backing out of defendant’s they were issued, and give the court date. Freund driveway. Special process server knocks on car win- Equipment, Inc. v. Fox, 301 Ill. App. 3d 163 (2d dow and asks if father is the defendant. Dist. 1998). Father says he is John Doe, Sr. and not John Doe, • The server must also later mail a copy of the Jr. (the defendant). When asked if father knows the summons to the defendant. Tomaszewski. How- location of defendant, father further states that he ever, the person who makes delivery to the abode did not know where defendant was, even though need not be the same person who mails the docu- defendant was also in the car. ments. Mid-America Federal Savings & Loan Ass’n 1. Was defendant served via substitute service at v. Kosiewicz, 170 Ill. App. 3d 316 (2d Dist. 1988). his usual place of abode? • You must send a copy of the complaint and 2. What would be the ramifications, if any, of the summons to each individual defendant in a sepa- father admitting, under oath, that he lied to the spe- rate envelope. Even if the defendants live together, cial process server? each must be mailed separately. Central Mortgage Co. v. Kamarauli, 2012 IL App. (1st) 112353 (Ill. An ISBA lawyer responds App. 1st Dist. Nov. 5, 2012). Fred Nickl, Chicago. Lying to a process server • Family members (as defined by Anchor Fi- = shoulder shrug. As long as [the father] admits it nance Corp. v. Miller): and doesn’t testify or sign an affidavit that perpetu- (1) The whole body of persons who form one ates the lie. household, thus embracing servants; Abode service: we give a seminar to private de- (2) parents with their children, whether they tectives and their investigators (process servers) on dwell together or not; and service. Your question is unique to us, but I would (3) the whole group of persons closely related use the cases that say: by blood. • A defendant’s “usual place of abode” is, gener- • Maid or housekeeper is family, Lewis v. West ally, where that person lives. The key consideration Side Trust & Savings Bank, 286 Ill. App. 130 (1st is whether delivering service there is “reasonably Dist. 1936). likely to provide the respondent with actual notice • Service on in-laws is probably good service. Ci- of the proceedings.” United Bank of Loves Park v. timortgage v. Lubowicki. Dohm, 115 Ill. App. 3d 286 (2d Dist. 1983). • Girlfriend/boyfriend? Probably not good ser- • [in arguing that] the property surrounding the vice. residence [i.e., the driveway] is fair game, [note that] • Cousins? Aunts? Uncles? Case law has not de- the front porch and stairs are fair game already…. termined what “closely related by blood” means in • But maybe a better analogy is: One may serve the context of service of process. ■

298 | illinois Bar Journal | june 2014 | VOL. 102 Make the Most of Your Membership.

15 Hours – Online – Per Year, At No Extra Cost. FREE CLE Choose from 525+ Hours of Programs.

www.isba.org/freecle