Friday, October 24, 2014

Don't get hit in the head with a brick!

I just signed up for my park district 35+ basketball league. All participants must sign a "Waiver and Release of all Claims and Assumption of Risk." The form contains the following language, under the heading "Warning of Risk":
"Basketball is intended to challenge and engage the physical, mental and emotional resources of each participant. Despite careful and proper preparation, instruction, medical advice, conditioning and equipment, there is still a risk of serious injury. All hazards and dangers cannot be foreseen. Certain risks include, but are not limited to, the acts of shooting, passing, and catching the ball, being struck by errant balls, being struck by another player's body, running, jumping, stretching, sliding, diving, collisions with other players and with stationary objects, acts of God, horseplay, unsportsmanlike conduct, dangerous playing conditions, poor floor conditions, defective equipment, equipment failure, premises defects, slips and falls, failure in supervision and officiating, and all other circumstances inherent to the sport of basketball. In this regard, it is impossible for the Naperville Park District to guarantee absolute safety."
Shooting?! I have been playing basketball since before I could walk, but I never knew there was such a huge risk from shooting the basketball. Now, when OTHER people shoot the basketball, there is a huge risk of being hit in the head with a brick, such as Ryan Holmes, Andy Honaker, Brian Moore, Dexter Evans, etc., but I never knew that shooting the ball by oneself was such a risk.  (Just kidding guys....just checking to see who's reading!!)

Friday, October 17, 2014

No Immunity for Lawyer Who Prepared Order at Judge’s Request


Every day lawyers prepare orders reflecting a judge’s ruling.  Lawyers simply do not worry about potential liability for preparing an order that the judge lacked authority to enter. Quasi-judicial immunity should protect a lawyer who drafts an order at a judge’s express or implied request.

But not so fast. In Burton v. Infinity Capital Management, the Ninth Circuit Court of Appeals refused to  apply the doctrine of absolute quasi-judicial immunity to insulate a private lawyer from a claim that the order he drafted at the judge’s direction violated the automatic stay provisions of 11 U.S.C. § 362(a).

This is what happened. A Nevada state court judge ordered that a rule to show cause issue against attorney Koch when he learned that Koch deposited a personal injury award with the bankruptcy court rather than the Nevada state court. Attorney Gugino, in court representing a party asserting a lien against the settlement funds, was directed by the judge to prepare the show cause order.

Koch sued Gugino for preparing the order. The Ninth Circuit found that quasi-judicial immunity did not protect Gugino because he did not exercise judicial discretion in drafting the order. He merely acted as the judge’s scribe. The Court of Appeals further found that Gugino had “volunteered” to prepare the order. But the transcript hardly supported such a finding. During the hearing, the state judge declared, “I’m going to issue an order to show cause.” After dictating the details of the order, he asked, “Who wants to prepare the order?” The judge then said, “Mr. Gugino?” who responded, “I’ll prepare it, Your Honor.” This exchange could only be deemed to have secured a “volunteer” in the Ninth Circuit, in the military, or possibly in the marital relationship.

In dissent, Judge Gilman noted the unfairness of holding an attorney liable for carrying out the order of an immunized judge. He also lamented that the majority opinion “puts at risk the common practice of private attorneys drafting proposed orders on behalf of a judge.” Hopefully, Judge Gilman’s view will ultimately prevail since it is difficult to envision a trial court operating efficiently without orders drafted by attorneys.

Friday, October 3, 2014

Seeking Leave to Prosecute or Defend a Civil Lawsuit Under a Fictitious Name


Last month, the Illinois Appellate Court issued one of the few opinions interpreting section 2-401(e) of the Code of Civil Procedure. Section 2-401(e) allows a litigant to appear under a fictitious name upon a showing of “good cause.” In  Doe v Northwestern Memorial Hospital, 2014 IL App (1st) 140212, a group of plaintiffs filed complaints against Northwestern Memorial Hospital and Northwestern Medical Faculty Foundation alleging that the defendants negligently allowed a cryogenic tank to fail causing damage to semen and testicular tissue stored in the tank. Most plaintiffs suffered from cancers which were likely to significantly interfere with their ability to engage in ordinary reproductive activities.

In affirming the trial court’s order allowing the use of pseudonyms, the appellate court noted the dearth of authority addressing what constitutes “good cause” to avoid the general rule that the public has the right to know who is utilizing tax supported courts. Doe at ¶ 35. The court recognized that the use of pseudonyms is disfavored and reserved for “exceptional circumstances” involving “highly personal” matters such as abortion, adoption, sexual orientation, and religion. Doe at ¶ 35, 39. Applying a balancing test, the court found that plaintiffs’ reproductive health and medical treatments were “extremely private and sensitive topics” and that individual privacy concerns outweighed the public’s interest in open court proceedings. Doe at ¶39.

Like most courts that break new ground, the justices tried to limit the impact of their decision by describing the circumstances as “exceptional, the result of a confluence of factors that might never recur.” Doe at ¶ 43. But the ramifications of the opinion should not be underestimated. Reproductive health and potentially a litigant’s privacy interest in treatment for any serious illness might justify invoking section 2-401(e). Indeed, it appears that “good cause” might be established whenever any type of privacy interest outweighs the public’s interest in open judicial proceedings. Doe v. Northwestern Memorial Hospital is necessary reading before seeking leave for a client to appear under a fictitious name.

Monday, September 29, 2014

Formatting an Appellate Brief in Microsoft Word

I just came across a Lawyerist post from last year that gives very detailed, step-by-step instructions on how to format a brief in Microsoft Word.

I have been using Microsoft Word for nearly 20 years with frustrating results, so I finally decided to learn the intricacies in order to become more efficient. It was just a coincidence that I saw this post a week or so ago. It deals with section breaks, fields, citations, headings, tables of contents, etc.

I'm simply linking to the original post HERE so that I can find it again the next time that I need it. If anyone has a brief coming due, you might want to check it out.

Friday, September 12, 2014

Could Adrian Peterson have used a switch if he was in Illinois?

News broke this afternoon that Adrian Peterson, one of the greatest running backs of all time, was indicted for “reckless or negligent injury to a child.” Multiple media outlets report that the indictment stems from an incident in which Adrian Peterson disciplined his 11 year-old-son by smacking him with a switch. 

Adrian Peterson has already retained prominent Houston attorney Rusty Hardin, who I have written about before, to defend this case. This case will surely make headlines for months to come, especially with this indictment coming so quickly after the release of the Ray Rice video.

Rusty and Adrian certainly have their work cut for them because of the allegation that Adrian used a switch to hit his son. Ordinarily, parents are granted broad leeway when disciplining their own children. A parent's "right" to corporally punish his or her child is derived from the right to privacy, which is viewed as implicit in the United States Constitution. This right to privacy encompasses the right to care for, control, and discipline one's own children. In Illinois, "discipline" had been interpreted by the courts to extend to reasonable corporal punishment. People v. West (In re F.W.), 261 Ill. App. 3d 894, 898 (4th Dist. 1994). 

However, what is "reasonable" is always subject to debate and may eventually be left to a jury to determine. In Illinois, the use of switches, belts, or other objects to corporally punish a child have been found to constitute neglect or abuse, depending on the severity of the punishment. Factors that the court will consider are whether any physical injury resulted from the use of the object, the psychological effects of the discipline on the child, and the circumstances surrounding the discipline, including whether the parent was calmly attempting to discipline the child or whether he was lashing out in anger.  In re F.W. at 903.

In fact, the odds may be against Rusty and Adrian due to the use of the switch. Here is a quote from a leading case in Illinois:
“Corporal punishment as a method of discipline remains a controversial issue. It is not our function in an abuse or neglect proceeding to determine whether parents measure up to an ideal, but to determine whether the child's welfare has been compromised. Whether to employ corporal punishment as a means of discipline is a decision each parent must make for himself or herself. However, parents should understand a swat on a child's buttocks with an open hand and the "paddling" of a child with belts, boards, cords, or ropes are intrinsically distinct exercises of corporal punishment. The cases reviewed above, and the dearth of cases finding striking with objects to be "reasonable," should put parents on notice. When allegations of neglect or abuse are levelled, parents using boards, belts, cords, or ropes as weapons to inflict corporal punishment may encounter an unwillingness on the part of DCFS and the courts to regard their conduct as reasonable.” Id. at 903.
So, Adrian will get extra scrutiny due to the use of the switch. If he had simply used the back of his hand, things may be have been different. However, please keep in mind that I am completely speculating about the facts of this case because the news just broke about 30 minutes ago. If it turns out that Adrian Peterson's son did in fact suffer serious injuries, I apologize in advance for anyone that I may have offended and I will be back here in short order to delete this post and scrub any evidence of it from the interwebs. Have a nice weekend.

Tuesday, September 9, 2014

This law firm should subscribe to the Northern Law Blog.

A law firm from Chicago was hired to appeal the property tax assessments for 71 different parcels of real estate located in Aurora Township, Kane County, Illinois. The tax appeals were due by October 4, 2013, the thirtieth day after the publication of the tax assessments. On October 4, 2013, the law firm sent its petitions to the Kane County Board via FedEx. The Board received the petitions on October 7, 2013 and rejected them as untimely.  

The petitioner appealed, arguing that the "mailbox rule" should apply. The mailbox rule, which is contained in the Statute on Statutes, 5 ILCS 70/1.25, provides that a document is deemed "filed" as of the date of mailing via United States mail, regardless of when the document is actually received. However, petitioner's argument was unsuccessful because multiple Illinois appellate courts have previously held that the mailbox rule does not apply to private carriers such as UPS or FedEx, but rather only applies to documents placed in the U.S. mail. Here is a link to the 2d District's opinion.

It's too bad that the petitioner's law firm does not subscribe to this Blog because I wrote about one of those cases more than five years ago. See Mailbox Rule Does Not Apply to UPS, Northern Law Blog (February 10, 2009). I don't know how much money was at stake in those 71 tax appeals, but I do know that a subscription to the Northern Law Blog would have been much, much cheaper than the malpractice case that will most certainly follow this decision.

Wednesday, August 6, 2014

Revised Kendall County Eviction Guidelines

The Kendall County Sheriff's Department has revised their eviction guidelines, effective July 11, 2014. I just received the revised guidelines in the mail, so I thought that I would pass them along. The new eviction guidelines can be found HERE.

Monday, August 4, 2014

By bequest, devise, or inheritance

In a Chapter 7 bankruptcy, the trustee can administer (sell) non-exempt property of the bankruptcy estate. The bankruptcy estate is defined in Section 541 of the Bankruptcy Code to include all of the debtor's legal or equitable interests in property as of the date the case is filed, wherever located and by whomever held. Therefore, every interest that the debtor has in any property whatsoever on the date of filing is included in his or her bankruptcy estate, subject to very limited exceptions. 

Normally, property that is acquired after the bankruptcy filing is not property of the estate and, therefore, not subject to administration by the bankruptcy trustee. However, Section 541(a)(5) lists three categories of property that can become part of the bankruptcy estate after the filing date. Those three categories include any interest in property that the debtor acquires, or becomes entitled to acquire, within 180 days of filing (A) by bequest, devise, or inheritance; (B) as a result of a property settlement agreement with the debtor's spouse, or of an interlocutory or final divorce decree; or (C) as a beneficiary of a life insurance policy or of a death benefit plan.

I represent a debtor who owned real estate in joint tenancy with her mother. The debtor's mother passed away within 180 days of the bankruptcy filing. While the mother was still alive, the debtor's "half" of the house was undoubtedly property of the estate. But, now that the mother has died, is the other "half" of the house property of the estate as well, pursuant to the language in Section 541(a)(5)(A) that talks about "bequest, devise, or inheritance"?

In order to determine the answer, I turned to Black's Law Dictionary. Here are the definitions of the three key terms:

  • Bequest - The act of giving property (usu. personal property) by will.
  • Devise - The act of giving property (usu. real property) by will.
  • Inheritance - Property received from an ancestor under the laws of intestacy.
So, the first two options require that the property, either personal property or real property, pass via a will. That did not happen here. Next, the third option requires that the property pass via the laws of intestacy. In this case, although there was no will, the house did not pass via the laws of intestacy. The house passed via the Illinois Joint Tenancy Act, making it not property of the estate and not subject to the claims of creditors or the bankruptcy trustee. Everybody goes home happy (except the trustee).

Thursday, July 10, 2014

Are you entitled to a piece of the $2 billion foreclosure settlement with Ocwen?

If you currently have a mortgage that is serviced by Ocwen Financial Corporation or Ocwen Loan Servicing, or if you had been involved with these companies and lost your home to foreclosure between January 1, 2009 and December 31, 2012, you may be entitled to share in a massive settlement.

In December 2013, both of the Ocwen entities into a consent order with 49 States, including Illinois, as a result of Ocwen’s systemic misconduct at every stage of the mortgage servicing process that required them to provide $2 billion in principal reduction to underwater borrowers who still have their homes, and to provide $125 million to people who already lost their homes.

Notice packages have now been mailed to affected borrowers and The National Ocwen Settlement Administrator has created a website with information for consumers. If you have received correspondence from Ocwen, or if you think that you may be entitled to file a claim, please submit a confidential email to me HERE.