Jurors Have Questions Too! The New Wave of Jury Participation at Trial

Anyone that has been keeping up with the Jodi Arias murder trial has seen a rather peculiar and unique participation by the jury throughout the trial, the jury's questioning of witnesses. It is a rather interesting thing. Each juror has the right to submit questions to ask of a witness and in most instances, the judge reads any questions he or she deems appropriate. The witness answers the question just as if one of the attorneys had asked it. Each side can object to the question outside of the presence of the jury and can object to the witness' response just as if the other lawyer had asked the question.

On July 1, 2012, Illinois became the most recent state to jump onto the bandwagon of allowing jurors to ask questions during trial. Before Illinois enacted Illinois Supreme Court Rule 243, jury questions were mandated in other states such as Arizona, Colorado, Indiana, and Wyoming. The benefits in allowing jurors to ask questions at trial are numerous. First, it gives an attorney a snapshot into how his or her case is going and if anything needs to be tweaked in regards to the case theory, presentation of evidence, or overall questioning of witnesses. Additionally, it makes jurors feel like they are more a part of the process and helps alleviate the tendency of jurors to become bored by the monotonous process of trial. Moreover, if a juror is confused by the evidence or a witness' testimony, a juror's question could completely clear up the confusion. Obviously, this would lead to more informed and reasoned verdicts which should be welcomed by all members of the legal profession.

That is not to say that there aren't pitfalls in allowing such questions. More questions lead to longer trials. While it may not matter in a case where there is a plaintiff, a defendant, and one or 2 doctors testifying, cases in which there are a substantial number of witnesses and experts would lead to much lengthier trials. Should that matter? Perhaps not in the criminal justice arena where a person's life is routinely hanging in the balance. Even in the civil arena, shouldn't we strive for jury verdicts which are based upon a juror's full understanding of the issues, the law, and any questions they have during the process? The other potential negative in allowing such questions is that too much emphasis might be placed upon the question of a particular juror. Could a juror's question regarding a red herring issue improperly sway a jury's decision and lead to unjust results? On the other hand, might those questions be asked in deliberations anyway after it is too late for either side to shift the jury's attention back to the main issues of the case?

While relatively new to the legal system, it seems the positives of allowing jurors to ask questions during trial outweigh the potential negatives. Such questions allow jurors to feel more a part of the trial process and at the same provides helpful insight to the attorneys regarding their case presentation at various stages of the trial.

Have you had an experience with jurors asking questions of witnesses at trial? Do you think it is a good practice? Why or why not? All comments are greatly appreciated.

Medical Marijuana in Illinois

Illinois is very close to becoming the latest state to legalize marijuana for medical use. The Compassionate Use of Medical Cannabis Pilot Program Act passed the Illinois House of Representatives last month.  Last week, the Bill passed the Illinois Senate Executive Committee.  The Bill will be back before the full Senate on May 14, 2013.  (Updates HERE.)  

If this Bill becomes law, a whole new industry will emerge overnight.  There is a tremendous amount of money at stake.  No one is talking about big business's involvement however.  The media reports always seem to focus on the cannabis users.  Do the patients have legitimate medical issues?  Does the cannabis provide legitimate medical relief?  Those media reports bore me.  I could not care less whether a licensed user of medical cannabis really has a legitimate medical ailment or whether his "symptoms" were an elaborate ruse to obtain a prescription.  I am much more interested in the cannabis providers.  They're the ones who really stand to gain or lose from this deal. For instance, who is going to grow it?  Who is going to sell it?  And, most importantly, do those people or companies need a lawyer? (Insert winky-faced emoticon here.)  

I've spent the last several days skimming the 211-page Bill.  The Bill provides for up to 22 cultivation centers throughout the state.  The cultivation centers will be governed by the Illinois Department of Agriculture.  The Bill also provides for 60 dispensing organizations to be governed by the Illinois Department of Financial and Professional Regulation.  As you can imagine, the application process to be become a licensed cultivation center or dispensing organization is fraught with red tape.  For those companies lucky enough to obtain one of the coveted licenses, the renewal and yearly compliance hurdles will be significant.  They're going to need teams of good lawyers.  

There are plenty of other interesting tidbits in the Bill.  For example, the Bill deals with employment and housing discrimination of licensed medical cannabis users, whether the fact that someone is a licensed medical cannabis user can be used against him or her in a child custody hearing (it can't), how licensed medical cannabis will affect the DUI laws, when and where licensed medical cannabis users can "administer their cannabis," etc.  

If anyone has any questions about this topic, or any other topic, please send me a confidential email HERE.

The Illinois Humane Care for Animals Act

The Humane Care for Animals Act (the "Act") provides for criminal and civil penalties for people who neglect, abuse, or otherwise mistreat animals in Illinois.  The Act prohibits the cruel treatment and torture of animals.  It also requires that animals be given humane care and treatment, adequate shelter, and veterinary care when needed.  The Act defines "animals" to include every living creature, domestic or wild, in the state, but does not include man.  

Although the Act speaks in very broad terms, it tries to give some clarification.  The Act states that "nothing affects normal, good husbandry practices utilized by any person in the production of food, companion or work animals, or in the extermination of undesirable pests."  The Act also states that the Illinois Wildlife Code and the Humane Slaughter of Livestock Act shall trump in the event of a conflict.  So, theoretically,  mice and undesirable pests can still be exterminated, mosquitoes can still be swatted, hunters can still hunt, and chicken and hogs can still be slaughtered for food.  And normal, good livestock procedures on farms should not be affected.

The law is not entirely clear, however, because one person's undesirable pests may be another person's desirable pets.  And there is not always a clear line between good livestock procedures and poor ones, for instance.  Adding to the confusion is that law enforcement officials generally only investigate after receiving a complaint from a neighbor or passerby, who may have ulterior motives, and even then the police are rarely involved. Complaints about an animal's welfare are usually investigated by "approved humane investigators," not the police.

Approved humane investigators can be hired or authorized by the Department of Agriculture.  The investigators are usually animal control officers employed by the county or they are employees of non-profit organizations, such as the Humane Society.  Either way they're given the power to come onto private property to investigate.  They can write tickets and seize animals.  If needed, the investigators can seek the assistance of the police or state's attorney.  Violations of the Act can be charged as misdemeanors or felonies.

The Act also provides for civil lawsuits against people who commit cruelty to animals.  If my dog is maliciously killed or injured by another person, I can sue that person for damages, including damages for  emotional distress.  I have addressed both topics in more detail in separate posts below.

• Criminal liability for violations of the Humane Care for Animals Act
• Civil liability for violations of the Humane Care for Animals Act

Criminal liability for violations of the Humane Care for Animals Act

[This is Part 1 of series about the Illinois Humane Care of Animals Act.  The introductory post can be found HERE.]

The Humane Care for Animals Act contains varying degrees of criminal liability.  First, the Act outlines duties that all owners owe to their animals.  Each owner shall provide each of his animals sufficient food and water, adequate shelter and protection from the weather, and veterinary care when needed to prevent suffering.  Failure to provide these basic necessities can result in a Class B misdemeanor for the first offense and a Class 4 felony for each subsequent offense.

The Act also prohibits the cruel treatment of animals.  The Act provides that no owner shall beat, cruelly treat, torment, starve, overwork, or otherwise abuse any animal.  Nor may any owner abandon any animal where it may suffer injury, hunger, or exposure.  Violation of this Section is a Class A misdemeanor for the first offense and a Class 4 felony for each subsequent offense.

There is also a section concerning aggravated cruelty to animals.  Aggravated cruelty is an intentional act that causes serious injury or death to an animal.  The first offense of aggravated cruelty is a Class 4 felony and subsequent offenses are Class 3 felonies.

The Act also provides for the seizure of animals if there are allegations of improper care, cruel treatment, or aggravated cruelty.  There is a procedure to obtain a hearing in front of a judge to determine whether the allegations are true. As I explained in the introductory post, what constitutes proper care and adequate shelter for animals is the subject of much debate. There is also a fine line between the discipline and training of an animal and cruelty.  The first step in the this process is usually the seizure of animals.  The next step will usually be misdemeanor or felony charges.  If you have any questions about potential criminal liability under the Illinois Humane Care of Animals Act, please send me a confidential email HERE.

Civil liability for violations of the Humane Care for Animals Act

[This is Part 2 of series about the Illinois Humane Care of Animals Act.  The introductory post can be found HERE.]

The Illinois Humane Care for Animals Act also provides civil remedies to the owners of animals who have been subjected to harm.  Any person who has a right of ownership in an animal that is subjected to aggravated cruelty or torture, as those terms are defined in the Act, may bring a civil action for damages.  

Damages may include, but are not limited to, the monetary value of the animal, veterinary expenses, any other expenses incurred by the owner in rectifying the effects of the cruelty, pain or suffering of the animal, and emotional distress suffered by the owner.  In addition to those actual damages, the court can award punitive damages of not less than $500 and not more than $25,000 for each instance of abuse.  Also, the court can award attorney's fees to the animal's owner.

If your animal has been intentionally harmed by another person, or if you have any other questions concerning the Illinois Humane Care of Animals Act, please send me a confidential email HERE.

The City of Naperville is Hiring

The City of Naperville just posted two new job openings to their website.  One is for a Senior Assistant City Attorney.  This is a full-time position.  They are also looking for a part-time, Assistant City Prosecutor to work approximately 20 hours per week.

Here is a link to the job postings:  http://www.naperville.il.us/employment.aspx

Codilis & Associates, P.C. is Hiring

Codilis & Associates, P.C. (located in Burr Ridge) is looking to hire a full time associate attorney. The law firm concentrates in representing creditor rights in Foreclosure, Bankruptcy and Real Estate matters. Three - Five Years related Foreclosure experience preferred as well as excellent organizational and attention to detail strengths. Responsibilities will include court calls (am and pm) as well as document review. Full benefits package including medical, dental, and life insurance as well as a 401k plan and time off benefits. Interested candidates should e-mail resumes including salary requirements to HR@il.cslegal.com.

Security for Costs

Recently, I was in court on the trial date for what I thought was going to be a routine forcible entry and detainer action. I was representing an out of state property owner who was seeking to evict unlawful occupants from his newly purchased home in the suburbs. Opposing counsel failed to show up but had the matter covered by another attorney. Since counsel and her clients were not present, the attorney covering for her asked for a continuance which was denied. When we stepped up, I called my only witness, the property owner, and then I got all the relevant documents into evidence. I have done this numerous and I thought I was going to get an order of possession. However, the attorney proceeded to cross examine my witness and asked him to identify his residence. As stated before, the client was from out of state, but I did not think that was going to be a problem. After identifying his address, the attorney moved to dismiss my case. As support for his motion, he cited 735 ILCS 5/5-101-103. Under these sections, an out of state Plaintiff is required to post a security for costs. This is a very archaic part of the Code of Civil Procedure and it is very rarely used anymore. In fact, the only other place I have seen a document that purports to be a “security for costs” is on the third floor of Dupage Judicial Center. They have an old artifact framed and signed by Abraham Lincoln whereby he was posting security for an out of state client. This rule is a typical example of a rule that once had a relevant purpose but that has now outlived its usefulness. At the time of my trial, I had never heard of this rule. The judge had never heard of it either, and he quickly had to pull it out his copy of the Code and look over the statute. I later learned more about this statute and its application in Illinois case law, but at the time I had no clue how to object to this motion. In fact, according to the case law that I later read, the motion was not timely brought to the court and was thus, not enforceable. But, just from the plain language of the statute the judge had to either dismiss my case or allow me a continuance to file the relevant paperwork. The statute reads as follows:

   

§ 5-101. Security for costs. In all actions in any court on official bonds for the use of any person, actions on the bonds of executors, administrators or guardians, qui tam actions, actions on a penal statute, and in all civil actions, where the plaintiff, or person for whose use an action is to be commenced, is not a resident of this State, the plaintiff, or person for whose use the action is to be commenced, shall, before he or she institutes such action, file, or cause to be filed, with the clerk of the court in which the action is to be commenced, security for costs, substantially in the following form:

A B v. C D--(Title of court.)

I, (E.F.) enter myself security for all costs which may accrue in the above entitled action.

Dated this .... day of ...., ....

§ 5-102. Approval--Effect of bond. Such instrument shall be signed by some responsible person, being a resident of this State, and be approved by the clerk, and shall bind such person to pay all costs which may accrue in such action, either to the opposing party or to any of the officers of the court in which the action is commenced, or to which it is removed by change of place of trial or appeal.

§ 5-103. Dismissal for want of security. If any such action is commenced without filing such written instrument, the court, on motion, shall dismiss the same, and the attorney of the plaintiff shall pay all costs accruing thereon, unless the security for costs is filed within such time as is allowed by the court, and when so filed it shall relate back to the commencement of the action; the right to require security for costs shall not be waived by any proceeding in the action.

After reading the case law, I found out some important things about this statute. First, a motion to dismiss based on these grounds must be brought at the earliest possible moment. A court should not enforce such a motion when it is brought right before trial. Second, the form identified above in section 5-101 is sufficient and no bond should be required. Basically, the attorney or any other responsible adult in Illinois that is not a party to the case can post security for costs. Third, although still enforced, the court should grant leeway to a party that substantially conforms to the statute and should give leave to the out of state party to file its security for costs. Such filing relates back to the filing of the case.  See LEASE PARTNERS CORP. v. R & J PHARMACIES, 768 N.E.2d 54, 329 Ill. App.3d 69, 263 Ill.Dec. 294 (2002).

New Law Seeks to Raise Minimum Injury Insurance Limits

The State of Illinois is currently debating a bill which would effectively increase the minimum insurance coverage for bodily injury required of drivers in Illinois.  Currently, the minimum coverage necessary to keep a driver “legal” is $20,000 per person, $40,000 per occurrence.  Senate Bill 1898 would raise the minimum limits to $50,000 per person, $100,000 per occurrence.  The bill would also raise the minimum coverage for the destruction of property from $15,000 to $40,000.

Where does Illinois currently stand amongst the 50 states you ask?  Essentially in the middle.  However, passage of this law would put Illinois at #1 with Alaska, Maine, and Wisconsin, each having minimums of $50,000/$100,000.  Piece of advice,   be careful driving in Florida or Ohio.  The minimum to keep drivers in those states legal is $10,000 and $12,500 respectively.  The most common minimum policy limits (shared by 26 of the 50 states) is $25,000 per person, $50,000 per occurrence.

The best advice is to never rely upon other drivers carrying enough (or any) insurance.  Always make sure that you carry uninsured and underinsured motorist coverage.  Make sure to purchase a policy with the highest bodily injury limits you can afford.  The most common policy in Illinois is typically $100,000 per person, $300,000 per occurrence.  While the cost of uninsured and underinsured coverage is relatively minimal, the amount of money it could save you down the line could be substantial.