iPhone application helps DUI offenders find lawyers

I have blogged about Avvo before. They are the lawyer rating service that previously petitioned the Illinois Supreme Court for the master roll of all licensed attorneys in this state, and lost.

Well, they are back in the news. They have developed an application for the iphone which allows you to log each drink that you consume over a given time period. It then calculates your approximate BAC based on gender, weight, etc. Then, if you exceed the legal limit, it will suggest cab companies or other alternative means of transportation. Then, if you get pulled over for DUI, it will suggest a DUI lawyer in your area.

Check out the full article here.

Judge hits police car, gets DUI

The criminal courts judge from Hartford, Connecticut requested a transfer to the civil division following her arrest for DUI.

Click here for full details.

Forensic Loan Reviews

The Chicago Tribune reports that certain companies are now offering forensic loan reviews to homeowners facing foreclosure to determine if their lenders made any mistakes during the loan process that the homeowners could now use to get out of their loans.

These companies will scour loan documents looking for errors in, among other things, the truth in-lending (TIL) statement the lender or the lender's annual-percentage-rate (APR) calculations. If the TIL statement doesn't match up with the HUD-1 closing-cost sheet, a borrower might have cause for legal action against the lender.

Typically, forensic loan audits are ordered by mortgage investors to determine what kind of legal liability confronts them in the pools of loans they already own or are considering buying. As a so-called "business-to-business service," they are not generally available to individual borrowers.

Fees for this service could be as high as $3,000, depending on how much is owed on the mortgage. But if an error is found, it could provide great leverage when trying to negotiate with the banks.

One particular company says that well over 80 percent of the recent audits performed by their company have revealed major truth-in-lending violations, errors in the good-faith estimates required under the Real Estate Settlement and Procedures Act, illegal predatory lending practices or even fraud.

My question: Do these companies employ lawyers? If not, is this the unauthorized practice of law?

Will County documents available electronically

From this morning's Joliet Herald:

The circuit court clerk's office now has the ability to electronically send noncertified copies of documents from scanned images, pursuant to a court administrative order, Circuit Clerk Pamela McGuire announced.

"Our office believes this service is another way we serve the public's best interest. For those who utilize the courts, this ability can save a trip to the courthouse, fuel and parking," McGuire said. "The fees for the electronic documents are consistent with our normal paper copy fees pursuant to statute. In the very near future we hope to be able to process certified copy requests as well."

To obtain documents electronically, visit http://www.willcountycircuitcourt.com/, select E-Documents and follow the instructions.

Requests can be submitted 24 hours a day, seven days a week from the convenience of one's office or home. Upon confirmation of payment, the documents will be electronically sent in a portable document format. Payments can be made by credit or debit card on the site. All document requests will be processed during normal business hours.

"The office of the Will County circuit clerk continues to look for convenient ways through technology to serve the public and utilize the clerk's office," McGuire said. "We hope you find this new service useful and cost effective."

Kendall County murder conviction overturned

Full details in today's Aurora Beacon News.

$325,425 seems lower than $325,000

Click here to read a very informative article written by David Davis, a trial consultant in Boston. His article titled "Some Juror Rules for Determining Damages" summarizes research conducted by economists at several universities relating to how jurors perceive damages at trial.

The most interesting portion of the article is that specific numbers seem lower than round numbers. For instance, $325,425 seems lower than $325,000 at first glance to most people. The author recommends asking for specific sums from juries for all types of damages, including punitives. Even if you are just making the number up, do not make it end in zeros.

Man intentionally passes gas in face of police officer, gets charged with battery.

First, let me apologize for the subject matter of my last two posts, but the intersection of bodily functions and the law has become quite crowded recently.

Yesterday, it was reported that a West Virginia man was pulled over and arrested for DUI. While at the police station having his fingerprints taken, the man "moved closer to the officer and passed gas on him." The investigating officer remarked in the criminal complaint that the odor was very strong. The man is now charged with battery on a police officer, as well as DUI and obstruction. Click here for full details.

I started to wonder whether that would actually be a battery in Illinois.

In Illinois, a person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual. 720 ILCS 5/12-3 (a).

I haven't read the annotations, but I doubt that passing gas equals physical contact.

I think the officer would have a better chance filing a civil suit for battery.

According to the Restatement of Torts 2d, an actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results.

I think the cop has a case for the tort of battery. Now the question becomes how much are his damages. I would love to be on that jury.

What the Heck is Elder Law Anyway?

Before I started practicing elder law, my conception of the field was a foggy notion of elder abuse cases, and maybe something to do with helping Seniors take care of their special needs. Those special needs? Hmmm...not really sure. Well, there are so many facets to elder law that not even an elder law attorney is necessarily well-versed in all of them! But, lest anyone else walk around out there with the same foggy idea of elder law that I had, I thought I'd post a thumbnail sketch of some of the more widely-practiced facets of elder law.

As usually comes to mind first, elder law does encompass the area of elder abuse. This includes not just situations of neglect in the medical sense by nursing homes or in-home caregivers, but also financial abuse by those who convince Seniors to invest in various inappropriate financial instruments, or maybe even a family member with financial powers of attorney. There was a recent article on an Elder Law website about a case where the surreptitious taping of a husband in the wife's nursing home room violated the husband's Fourth Amendment rights. There was a complaint of sexually inappropriate contact by the husband, and nursing home officials reported it to authorities. They obtained a search warrant to install a hidden video camera in the room and the husband was subsequently arrested and charged with second-degree sexual assault for having intercourse with his wife while she was unconscious. The circuit court suppressed the videotape evidence, ruling that the husband had a reasonbale expectation of privacy in his wife's nursing home room. That article was WAY more interesting than the ones on tax that are also on the website! :^)

Encroaching upon the elder abuse arena is the area of Elder Rights. Some of the elements of Elder Rights include nursing home transfer or discharge rules, contract rights when one is dealing with Assisted Living or any Continuing Care-type community, issues related to receipt or purchase of long-term care insurance, housing issues such as discrimination or reverse mortgages, pension and retirement issues, or age discrimination in employment. Just by this short list describing two areas of elder law, you can see that this is a vastly varied field that encompasses all manner of different areas of law, as well as various arenas where one would practice. An elder law attorney could find themselves not just at the courthouse, but before an Administrative Law Judge, working with various public Commissions such as the Equal Rights Commission or the Department of Human Services, and even working in a mediating fashion with private entities such as long-term care facilities and banks!

Another area of elder law, where most of the action takes place in probate court, is guardianship. Many times a family member -- usually a child -- consults an elder law attorney when their parent can no longer handle their affairs and more than just a power of attorney is needed. A growing area within this particular segment is in voluntary guardianship. As Seniors live longer with specific long-lasting diagnoses (such as Alzheimer's), some of them are seeking the services of an elder law attorney to do a voluntary guardianship. These voluntary guardianships are usually done on a springing basis, so that as the Senior progresses in their journey of decline they have their affairs in order -- not just for a distribution to heirs at death -- but for their long-term care needs. Which brings me to another area of elder law -- assisting clients with long-term care planning. This area encompasses all manner of services one can provide to a Senior looking at possible long-term care in the future. This ranges from helping the Senior with long-term care placement at a facility or with in-home care, voluntary guardianship or other planning tools for someone to manage the Senior's affairs after they are no longer able, doing estate planning to help the Senior pay for their long-term care costs, advising about or planning for any future public benefits, such as Medicaid or Veterans Benefits, that the Senior may be or become eligible for, to providing referrals or information for caregiver stress or other sources of support for the family.

As you can see, the elder law attorney needs to be well-versed in a vast array of legal areas. In addition to the above, the elder law attorney may also do normal estate planning, estate administration, trust administration, financial planning, tax, or even family law. (Believe it or not divorce is a Medicaid-planning strategy, although not a common one). Although it doesn't seem likely, elder law could even encompass criminal law should one of your elderly clients run afoul of the law! So, in a nutshell, just what the heck is elder law? Anything and everything!

Defendant Tosses Excrement at Markham Courthouse Judge

From Friday's Chicago Tribune:

Murder wasn't the only thing most foul at the Markham Courthouse on Friday.

Cornell Tyler, 37, of Robbins was hauled away after he announced his name was "Self Destruction" and flung human excrement around the courtroom.The incident took place shortly after noon as Tyler appeared before Circuit Judge Kathleen Panozzo during a routine status hearing. He is charged in the 2005 slaying of Ghada Elayyan in Robbins.

"He was in the back prior to his appearance before the judge, and he was given some lunch and then used the bathroom and used one of the lunch baggies to store the excrement," said Penny Mateck, a spokeswoman for the Cook County sheriff's office.

Assistant State's Atty. Ted Lagerwall, who is handling Tyler's case, said the defendant appeared disheveled when he was led into the courtroom."The judge said, 'Is your name Cornell Tyler?' " Lagerwall said. "He said, 'My name is Self Destruction, but you can call me Smitty—well, I mean [expletive].'

"Tyler then quickly reached down the front of his pants and pulled out the baggie but the deputies beside him pounced on him."In that scuffle, he did throw the excrement toward the front of the courtroom," Mateck said. "The judge was not injured, but unfortunately our deputies were . . . adversely affected."After Tyler was removed, the judge finished the court call in a back hallway.

"The courtroom stunk to high heavens," Lagerwall said. Mateck said charges were expected to be filed next week.

Can Binge Drinking Save Social Security?

Now that I have your attention, I am going to reprint a post (with the same name as this post) from the Freakonomics Blog in its entirety:

"A coalition of college presidents has been pushing states to lower the drinking age as a way to discourage problem drinking on campuses. But here’s one unintended consequence of teaching young people responsible drinking habits: it could make Social Security bankrupt faster.

A 2004 study by Frank Sloan and Jan Ostermann at Duke University found that heavy drinkers contribute slightly more to Social Security, through their higher average lifetime earnings, than nondrinkers do. What’s more, since alcohol abusers tend to die sooner than moderate or nondrinkers, they draw less money, over time, from the Social Security trust fund.

Their conclusion: the elimination of heavy drinking (three or more drinks a day) from each successive group of American 25-year-olds would cost the Social Security trust fund $3 billion over the cohort’s lifetime.

According to the authors:

From the vantage point of society as a whole, heavy drinking redistributes wealth from heavy drinkers to others. Thus, if public health programs were to succeed in reducing the rate of heavy drinking, [Social Security’s] future financial status would be even worse than has been projected.

The study drives home the health cost of irresponsible drinking, but with a twist: in this case, binge drinking can have positive externalities.

On another note, one of the puzzling underlying findings in this paper is the relationship between moderate alcohol consumption and increased lifetime earnings. For men and women alike, people who report downing two or fewer drinks a day earn slightly more than teetotalers do, on average. Heavy alcohol use tends to negatively impact earnings, as you might imagine, but not as much as abstinence. Sloan and Ostermann aren’t clear on the mechanics of this relationship, but the science seems solid."

Interesting analysis.

I wonder why they went bankrupt.

I was just reading an interesting piece on the Wall Street Journal Law Blog which speculates that the trustee in Lehman Brothers' historic Chapter 11 bankruptcy filing could could possibly attack the bonuses handed out to Lehman executives over the last year on the ground that they were fraudulent transfers made by an ailing company.

The article reports that Lehman paid about $5.7 billion in executive bonuses last year. The article also states that the bonuses are typically 60% of compensation. After brushing off my high school algebra textbook, I figured that the estimated annual salary in 2007 of Lehman executives was approximately $9.5 billion (I hope that's right). I have absolutely no idea how many "executives" there are at Lehman, but could they even have 500? I have no idea. Reuters states that they had 28,600 total employees worldwide. 500 executives sounds about right. Assuming 500 executives, that means that they each earned approximately $19,000,000 last year!!!!!!!!!!!!!!

That's some major coin. What could they have done to be worth so much money to that company? Probably nothing. You know they just basically took a percentage of everything that came into the company. Maybe if the "executives" hadn't been so greedy, they could have kept drawing more moderate salaries for many years to come. Instead, as soon as they had a bad year, they had to start typing up their resumes.

What would the cops actually do?

I missed this case right when it came out, but I was just leafing through the West's Illinois Decisions paperbacks that come out before the hard volume is published, and I came across the blurb about People v. Harris, 2008 WL 733756.

I will quote the case summary from West in its entirety:

"Compliance, by a passenger in a lawfully stopped vehicle, with a police officer's request for identification was voluntary, notwithstanding that the passenger was not free to terminate the encounter. Thus, the request for identification did not violate the passenger's Fourth Amendment rights. In so holding, the Supreme Court found that the request for identification was facially innocuous, and that a reasonable innocent passenger, even upon realizing that the driver of the car in which he had been riding was about to be arrested, would have felt free to decline to provide his driver's license or other identification."

What would a typical police officer do if you refused to provide identification?

You will find out eventually because I guarantee that the next time that I am the passenger in a car I am going to withhold my ID. I might even print out a copy of this Supreme Court opinion for my glove box, not that the typical officer would give that the time of day.

Stay tuned.

The Jewish Clause

I saw in the Chicago Tribune this morning that a Chicago dentist named Max Feinberg expressed in his will his wish to disinherit any descendant "who married outside the Jewish faith." Following litigation initiated by one of his grandchildren, the Illinois Appellate Court noted that it would be "contrary to public policy" to honor Max Feinberg's wish.

I need some help here. I am not an estate planner. I did take Trusts and Estates about six or seven years ago, but I think I sold that text for pizza money about two days after the final. First of all, this wasn't the public's money. It was Max Feinberg's money. So how can the court overrule his wishes based on public policy considerations. Three judges think they can dictate how this guy can divy up the money that he spent seventy years saving. That's ridiculous. I don't think this has any public policy implications whatsoever. He didn't say "My descendants must marry Jews." He said "You can marry whoever you want, but if you want my money, you must marry a Jew." How are these kids automatically entitled to any of his money??? He built his own fortune. He should be able to do with it as he chooses.

Of course, I haven't read the court's opinion. I'm just giving you my initial reaction after reading this article today. There are probably arguments expressed by the Appellate Court of which I am not smart enough to come up with on my own as I sit here typing this off the top of my head.

I would be thrilled to hear from some estate planners out there. What are your thoughts on this case and its implications for your practice.

Affair with former client's wife costs attorney $1.5 million

From Law.com:

A Mississippi attorney must pay $1.5 million for having an affair with a former client's wife.

Affirming a jury verdict in Rankin County Circuit Court, the Supreme Court of Mississippi found Ronald Henry Pierce liable to his former client, Ernest Allan Cook, who, along with his wife Kathleen Shorkey Cook, had hired Pierce to represent them and their son in a medical malpractice action. The appellate court found Pierce, a solo practitioner, liable for intentional infliction of emotional distress, breach of contract and alienation of affection.

Pierce began having an affair with Kathleen Cook in September 2000 after her husband had moved to California to pursue a film career. Ernest Cook discovered the affair and hired a private investigator. The Cooks terminated Pierce as their attorney in the medical malpractice action in December 2000 and were divorced in June 2002 on the grounds of Kathleen Cook's uncondoned adultery. Ernest Cook then filed a lawsuit against Pierce.

In June 2006, a jury granted Ernest Cook $300,000 for alienation of affection, $200,000 for breach of contract and $1 million for intentional infliction of emotional distress. The Mississippi Supreme Court on Aug. 14 rejected Pierce's argument that the statute of limitations had expired on the alienation and emotional distress claims and his argument that the breach of contract claim was actually a legal malpractice claim requiring an expert witness.

Reached by phone, Pierce said he expected an unfavorable outcome because the Supreme Court had denied his bid to present oral argument on appeal. "I knew I was going to get screwed," he said.

Pierce said that he planned to file a motion to reconsider.

Felony conviction overturned because prosecutor's law license was suspended

The Aurora Beacon Newspaper reports that a felony conviction out of Kendall County has been overturned by the 2nd District because one of the Assistant State's Attorneys who tried the case had had her license temporarily suspended for failing to answer the question on the renewal form asking whether or not she maintained malpractice insurance.

The article states that the defendant's lawyer was simply checking how to spell the prosecutor's name on the ARDC website for purposes of the appellate brief when he discovered that the prosecutor's license was suspended six days before his client's trial. That had to be a good feeling. I bet the brief sure took a different tone after that discovery.

I know the ASA involved in that case. She was actually decent to work with, which I cannot say for the majority of prosecutors that I come across in my practice. She no longer works for Kendall County, but now works in the Kane County State's Attorney's office. Her license was only suspended for ten days. It just so happens that during that period of time she tried a felony case that she won and that the defendant decided to appeal. That was unfortunate for her, but like I said, that must have been a good feeling for the defense lawyer when he first made his discovery.

NCAA Class Action Settlement

A federal judge has approved a class action settlement between the NCAA and Division 1 football and men's basketball players arising out of a lawsuit in which the athletes alleged that the organization limited the amount of financial aid available to them as college students.

As part of the settlement, the NCAA has agreed to provide an additional $218 million in financial aid for student athletes to NCAA Division 1 member institutions during academic years beginning in 2007-08 through 2012-13, according to a press release issued by Houston's Susman Godfrey, the law firm representing the plaintiffs.

Class members could receive up to $2,500 per year for three years of expenses incurred while they were obtaining an undergraduate, graduate or professional degree or were enrolled in a professional certification program. They also could receive a $500 payment toward career development programs. Also in the settlement, the NCAA agreed to provide health insurance to student athletes in Division 1 schools, arrange for accident insurance for injuries of student athletes at Division 1 schools and look into offering student athletes scholarships through graduation.

The attorneys will be paid $8.6 million, plus interest.

Ya, that sounds about right.

This article from Law.com is not for the weak of heart. It is titled "Mid-Level Associates: The Paycheck Report." The first sentence says "Finally, everyone's being paid like a New York lawyer." Wait...what? Everyone?

The article goes on to explain how New York associates' salaries are leveling out while the rest of the country's associates' salaries are rising. A survey of nearly 7,500 associate attorneys showed that the average salary has climbed to $185,000 for third-years, $210,000 for fourth-years and $230,000 for fifth-years.

Wow. Have a nice weekend!

Civil liability for retail theft

I don't really have the time to pull the statute now, but I remember defending several retail theft cases in the past where my clients always received demand letters from law firms demanding a settlement fee (usually less than $500) to prevent it from filing suit on behalf of the retailer. In my opinion, this was completely within the law and I always advise my clients to pay. I know the statute provides for civil liability up to a certain amount including attorney's fees. The only issue I ever had with these demand letters is that they always seemed to be from out of state law firms. I always advised my clients that even if this particular law firm couldn't sue them in Illinois, the retailer would just hire a law firm that could.

Now it seems that one of these collection firms is being sued in federal court for mail and wire fraud for these collection tactics. Here is an article from the ABA Journal. I don't know if there is any merit to this case, at least in Illinois, because I know our statute provides for liability.

Any experience in the past with clients not paying these demand letters?

ISBA Young Lawyers Division - Day at the Races

The ISBA Young Lawyers Division is Sponsoring a Day at the Races at Arlington Race Track:
It is a Networking and Social Event, Co-Sponsored with the Northwest Suburban Bar Association which benefits of go towards the Illinois Bar Foundation/YLD Children’s Assistance Program. **IBF/YLD Children’s Assistance Fund is a 501(c)(3) charitable entity**

When: Saturday, September 20, from 12:00 p.m. to 5:00 p.m.

Where: Arlington Park Racecourse, Miller Party Deck. Arlington Hts, IL.

Tickets are available online at https://secure.isba.org/sections/yld/races.html and at 11:30 a.m. at the Grandstand Entrance (east Side off of Wilke Road Entrance) at the ISBA Ticket Booth.
NOTE: That there are a limited number of tickets and there is a possibility of the event being sold out.

Tickets include the following: admission; daily racing guide; private party deck; soft drinks, beer, wine and appetizers from 12:30 - 3:30 p.m.

Cost: $50.00 per person (Children 4 - 17 must have a ticket. Please contact Meghan O'Brien for child ticket prices)

NIU Post-Bar Exam Event

Just a reminder for all those out there - NIU is holding a post-bar exam event at Dave & Busters at 1030 N. Clark Street, Chicago IL from 5:00 p.m. to 7:00 p.m. to celebrate and congratulate all the graduates who are taking the Illinois Bar exam today.

Please stay tuned.

Please excuse the lack of posts recently, my wife and I are in the process of selling our current house and buying a new one. We've been really busy the last couple of weeks negotiating contracts and packing all of our stuff in boxes. We close on August 15th. Please stay tuned, however, because I have a couple of good posts in the works.

Any new contributors out there please contact me for instructions to begin posting.

Thank you.

Law Blog featured in ISBA Bar News

Maybe "featured" is too strong of a description, but if you turn to page 28 of the most recent ISBA Bar News, you will see our three inches of text in the far right hand column.

Hopefully this will help us pick up some contributors.

Court supervision for minors

As of January 1, 2008, drivers under the age of 18 are ineligible for court supervision unless they make a personal appearance in court with a parent or guardian and agree to complete a traffic safety course. Judges have the authority to waive the appearance of the parent or guardian upon a showing of good cause by the defendant. 730 ILCS 5/5-6-1(m).

I have had this situation arise twice in the past month. Both times my clients agreed to take the traffic course to get supervision, but neither ASA (Kane and DuPage) asked if my clients' parents were present (they were). I just learned about this parental appearance requirement when I got back to the office and looked up the statute relating to the traffic school requirement.

Duke won a lawsuit because it has a bad football team

From the Sports Law Blog:

The University of Louisville sued Duke for breach of contract after the Blue Devils opted out of the final three games of a four-game football series after Louisville demolished Duke 40-3 in the first game. Apparently, Duke waved the surrender flag to avoid more embarrassments.

The case, University of Louisville v. Duke University, sought $450,000 in damages. The amount was derived from a contractual cancellation penalty of $150,000 per game if the nonbreaching party is unable to schedule a replacement game with a “team of similar stature." Louisville, of course, had a duty to mitigate its damages by trying to find a "team of similar stature." It claimed it could not.

It is in interpreting "team of similar stature" where Duke's lack of success helped. Judge Phillip J. Shepherd agreed with Duke’s argument that its team was so bad (6-45 over the past 5 years) that finding a replacement team of "similar stature" should not have been difficult. At oral argument, Duke persuasively asserted that this is a threshold that could not be any lower.

Louisville did find substitute teams and the court rejected the claim that the term "similar stature" was ambiguous. According to the court's ruling, finding a replacement of similar stature literally meant that any NCAA Division I team would suffice – including those in the Football Championship Subdivision (formerly known as Division I-AA.) Therefore, the court granted summary judgment for Duke.

Imagine, however, if Duke was a more competitive football team. Then the substitution clause would be more difficult to fulfill. Or, in a legal nightmare scenario, imagine that Duke's football team was as good as its men's basketball team! Needless to say, situation would be far more difficult.

Subcontractors' mechanics lien rights

Under the mechanics lien act, it is the property owner's duty, before making any payments, to require the general contractor to provide a sworn written statement listing all subcontractors and amounts due or to become due to each of them. 770 ILCS 60/5(a). If a subcontractor's name is omitted from the sworn statement, or if the subcontractor claims he is owed a different amount than is listed in the statement, the subcontractor must give the owner written notice of its claim no later than 90 days after its completion of the contract. 770 ILCS 60/24(a).

When an owner is notified of a subcontractor's claim, either by way of the sworn statement or through the subcontractor's claim for lien, the owner must retain from any money due to the contractor an amount sufficient to pay the subcontractor. 770 ILCS 60/27. If, after receiving notice that a subcontractor is owed, an owner pays a contractor and does not retain sufficient funds to pay a subcontractor, such payment shall be considered illegal and made in violation of the subcontractor's rights, and the owner will have to pay twice.

That is what happened to the University of St. Francis in Joliet in the case Weather-Tite, Inc. v. University of St. Francis, et al. In that case, the general contractor on a residence hall remodeling project submitted its final bill showing it was owed approximately $450,000, $130,000 of which was owed to a subcontractor. St. Francis paid the general contractor the whole $450,000. The general contractor's bank seized the funds to partially satisfy a debt the contractor owed to the bank. The subcontractor never got paid.

Because St. Francis had notice of the subcontractor's claim by way of the general contractor's sworn statement, and because St. Francis did not set aside the subcontractor's payment, the court found that St. Francis' payment of the subcontractor's $130,000 to the general contractor violated the mechanic lien act. The court also found that the subcontractor still had a valid and enforceable mechanics lien. The subcontractor was then granted summary judgment in its attempt to foreclose upon that lien. So, St. Francis will end up paying the $130,000 subcontractor bill twice.

The case does not address the proper remedy, if any, that St. Francis has against the general contractor. Any ideas?

BREAKING NEWS: The Big Ten Network is coming to Comcast

The two media powerhouses have finally inked a long-term agreement which will give the Big Ten Network its own channel on Comcast cable. Under the terms of the agreement, Comcast will initially launch the Network as part of its expanded basic level of service starting on August 15th, well before football season. The way I read the press release, this means that it will not be an upgrade, but rather available to all basic cable subscribers.

A tip of the hat to my dad for pointing this one out. It will be much easier for me and him to discuss basketball games next season now that I will actually be able to watch the games.

Why can't we get Wisconsin law licenses without taking their bar like Wisconsin law students do?

From the National Law Journal:

A Wisconsin federal judge has granted class status to a group of law school graduates who have earned law degrees outside that state and want the same right as Wisconsin law school graduates to practice in the state before passing a bar exam. However, shortly after granting class status, the Judge also dismissed the case on other grounds.

Christopher Wiesmueller, a graduate of Oklahoma City University School of Law who served as the original plaintiff as well as the lawyer on the case, said in an interview that he will appeal the dismissal to the 7th U.S. Circuit Court of Appeals. Wiesmueller sued on the basis that a rule allowing only graduates of Wisconsin's two law schools to practice law before passing the bar exam was a violation of the U.S. Constitution's commerce clause.

I know at least one of our Law Blog colleagues is licensed in Wisconsin. He, of course, is probably rooting against this lawsuit as it will maintain the exclusivity of his dual licensure. I, on the other hand, am rooting for this lawsuit so that I can add an asterisk to my name on the letterhead without taking another bar exam.

Full article here.

Defending homeowners in foreclosure cases

The headlines are full of statistics about the record number of foreclosure cases being filed in this state and around the country. My wife Carmel works at Codilis & Associates, so I see first hand how busy the foreclosure firms actually are. Along with the increased workload for foreclosure attorneys, more and more lawyers are being asked to defend foreclosure cases on behalf of homeowners. Because this is such a specialized area of law, most lawyers have not had a lot of prior experience working a foreclosure file.

The Young Lawyers Section of the Chicago Bar Association has produced five videos outlining the foreclosure process. The videos are available free on the website http://www.illinoislegalaid.org/. I watched the first video. It is pretty informative. While these videos are marketed towards homeowners, they are a very helpful resource to the general practitioner who is looking to defend his or her first foreclosure action, especially if your case happens to be in Cook County.

Wrong date fatal to judgment lien

The first district recently released its opinion in Maniez v. Citibank, F.S.B., et al. (Citation not yet available.) The plaintiff in that case sought to foreclose on a judgment lien. Judgment was entered February 28, 1997. However, the memorandum of judgment that plaintiff recorded, and which plaintiff eventually sought to foreclose upon, said that the judgment was entered on February 27, 1997, one day sooner than it was actually entered.

The defendants moved to dismiss based on the faulty date, but their motion was denied. Defendants then appealed. The question certified for appeal was "Whether a memorandum of judgment inaccurately describing a judgment as having been entered on a specific date can serve to create a lien as provided by the relevant statute." Basically, the defendants argue that there is no judgment lien to foreclose upon because the memorandum of judgment was incorrect.

The appellate court noted that a court entered judgment did not created a lien against the real estate of the debtor at common law. A judgment lien is purely a statutory creation. That being the case, it must be strictly construed. Very strictly in this case, I might add, because the court found that a memorandum of judgment inaccurately describing the judgment does not create a lien against real estate, and the trial court's decision was reversed.

This case is prime example of the importance which needs to be given to every small detail in your case. The plaintiff made several arguments to the appellate court which did not fly, one of which was a scrivener's error argument, and the other was that judgment memos are designed purely for notice. By recording this memo, plaintiff argued, the public was notified that a judgment was entered against this particular property. Yes, the appellate court said, the public was notified that a judgment was entered (erroneously) on February 27, but the public was not notified that a judgment was (accurately) entered on February 28.

Must have been pretty difficult to explain that one to the client! I hope the plaintiff's lawyer was current on his malpractice premiums.

Lawyer rating service seeks names of all licensed lawyers in Illinois

Avvo Inc., a company that provides an online ratings directory of U.S. lawyers, has petitioned the Illinois Supreme Court to obtain an electronic list of the attorneys licensed to practice in Illinois from the ARDC. The company noted that the information was already made public on the ARDC's own Web site, just not in a form that's usable by Avvo. The ARDC said providing the list would fly in the face of long-standing policy. In an April letter to Avvo, ARDC lawyers said that outside its Web site the list is only provided to state and local bar associations, officers of the court and continuing legal education organizations.

I have been to the Avvo website. They claim to have most Illinois lawyers in their database already. They just want to fill in the holes with the master list from the ARDC. I went there and found my own listing. It was very generic. I think it just basically listed the date of my admission and my contact information. I actually created a free account so that I could customize my profile. The website allows clients to go on there and "rate" the lawyers. I seriously doubt any of my clients have ever heard of that website, but I still thought it was worth it to create an account so that I could control what my clients see if they ever come across the site.

Discovery deposition of deceased plaintiff excluded from trial

The Illinois Trial Pracice Weblog has a great summary of a recent 5th District case which outlines the limited areas in which a discovery deposition transcript can be used as substantive evidence at trial.

To summarize briefly, the plaintiff in Berry v. American Standard, Inc. passed away before trial and before his evidence deposition was taken. He had been deposed in a discovery deposition however. The trial court barred the use of the discovery depostion at trial because "Supreme Court Rule 212(a)(5) bars that use where the deponent is a party to the action."

In affirming the trial court, the appellate court noted that none of the exceptions in Rule 212(a) applied (impeachment, admission, as an exception to the hearsay rule, for purposes for which affidavits may be used, or as former testimony if not by a party). The court also noted the purpose of the rule: "knowing in advance that a deposition is for discovery only and hence of limited availability, counsel ordinarily do not urge technical objections, and the taking of the deposition proceeds informally and expeditiously."

Please click here to read the original post from the Illinois Trial Practice Weblog.

Are out-of-state witnesses always "unavailable to testify"?

The 2nd District recently affirmed a decision by an Ogle County trial court to award court reporter and videographer fees to plaintiff after trial that were incurred in taking the evidence deposition of a treating physician.

At issue in this case were the conflicting rules contained in Supreme Court Rule 208, which provides that "the party at whose instance the deposition is taken shall pay the charges of the recorder or stenographer," and the common law rule that if a deposition is "necessarily used at trial," those costs enumerated in Rule 208 may be taxed at the trial court's discretion."

The Supreme Court has previously held that a deposition is necessarily used at only when it is releveant and material and when the deponent's testimony cannont be procured at trial as, for example, if the deponent has died, had disappeared before trial, or is otherwise unavailable to testify. Vicencio v. Lincoln-Way Builders, Inc., 204 Ill.2d 295 (2003).

So, the issue was whether the physician was unavailable to testify just because he resided outside of the trial court's subpeona power. The court held that those witnesses outside of the court's subpoena power are unavailable to testify.

The court never even mentioned trying to obtain the doctor's voluntary appearance. I guess common sense just dictates that doctors are not going to take any time off of work to help out their patients unless they are threatened with the court's contempt powers.

The case is Peltier v. Collins, citation not yet available. Click here for a .pdf file of the case.

Northern Law Blog Sponsors Hole At Alumni Golf Outing

The Law Blog dipped into its meager reserves today to sponsor a hole at the NIU golf outing on June 27. We haven't been notified yet which hole we purchased.

The Law Blog Executive Committee offers a FREE DRINK at the 19th hole to the first reader to correctly guess which hole we end up sponsoring. Please post your guesses in the comment section. Only one guess per reader. See you on the 27th.

Illinois Supreme Court makes plans for statewide e-filing

In a press release dated May 23, 2008, the Illinois Supreme Court expressed its plan to electronically link all 23 judicial circuits through a single website. Litigants would then be able to e-file documents in any county through the one website. The Court hopes to have the website created in the next three to five years. Here is a brief article from Law.com.

E-filing in the federal courts is mandatory. I really like that system. It is so much easier than driving to Chicago, that's for sure. I've also found that certain courts will simply rule on routine motions without the movant ever having to appear. For instance, when a plaintiff files a motion to voluntarily dismiss a case, or something else very simple and unopposed, it is not uncommon to receive an emailed order granting relief shortly after e-filing the motion.

Does anyone see any problems with this proposed plan?

Time to look for a new advertising agency

Todd Davis, the CEO of LifeLock, an identity theft protection service, gave out his complete social security number in radio, television, and print ads, and on his website LifeLock.com. I remember hearing the radio ads. I can't remember exactly what the guy says, but he basically guarantees that his company's service will not fail right before he gives out his complete social security number on the air.

Eighty-seven people tried to steal this guy's identity and at least one of them was successful. Once this news became public, Mr. Davis and his company were sued in three different states on the theory that he should have known his services were not foolproof because his own identity was stolen.

Doh!!

NIU Golf Outing - June 27, 2008

I hope to see some of you at the NIU Golf Outing on June 27, 2008. The event starts at noon with dinner to follow. The cost is $400 per foursome. Contact the Alumni Association to sign up.

For those of you who have never met me, I thought I'd post my picture so that all of the loyal Law Blog readers know who I am. I wonder if River Heights has a pool or a pond?

I'm surprised we don't see more of this...

A lawyer who attended the University of Chicago Law School has been accused in an ethics complaint of lying about his grades when he applied for a summer position at Sidley Austin. Click here for an article from the ABA Journal. The article says that this guy altered the grades from twenty of his classes on the transcript that he submitted to his prospective employer.

I'm sure you all read about starting salaries at the mega-firms rising to $160,000 for new associates last summer. I don't think that number went up this year due to the slowing economy, but that is still a huge amount of money for someone's first job out of law school. I wonder how much lying, cheating, and back-stabbing goes on to land one of those jobs. This is the first instance that I have seen reported, but I am sure that there are many more that have gone unreported.

And just to kick him while he is down, the ABA Journal also reports that this guy flunked out of medical school before he became a lawyer.

Another trip to the Appellate Court?

I had another Home Repair and Remodeling Act case dismissed by the Circuit Court of DuPage County.

I represent a contractor who did not have a written contract with his customers. Of course, the customers refuse to pay the last $15,000 of the job. So we sued them for breach of oral contract and quantum meruit. As I expected, they filed a motion to dismiss alleging violation of the Home Repair and Remodeling Act. But the twist on this case is that the house on which my client performed work is an investment property. The defendants told my client that they intended to flip that house for some property in Wisconsin when he finished his work.

So I argued that the "HOME" Repair and Remodeling Act only applies to people's homes, not their investment properties. There is a lot of language in the Act to support that argument which I will not get into right now, but the trial court did not buy it. The Court said that it did not see the distinction between investment properties and non-investment properties. My complaint was dismissed with prejudice.

The problem is that this is another relatively small case. Hopefully my client wants to spend some money to take this issue up on appeal. I'll let you know how it goes.

Great tip from Justice Scalia

I told you I was going to read the book Making Your Case by Justice Scalia and Bryan Garner, the Editor in Chief of Black's Law Dictionary. It's really good. It is a quick read, but it is full of great advice.

The most informative section, in my opinion, is the one dealing with legal writing. It is somewhat geared towards appellate briefs, but the authors point out which tips should also apply to pleadings and motions in the trial court.

I have handled five appeals in the past five years, if you count the Supreme Court case as two. I am currently waiting for decisions on two separate cases. That means I have probably written seven or eight appellate briefs, considering that you write two if you are the appellant. There is a tip in the book which I have never used before in a brief, but I will use almost every time from here on out. I also used it today when drafting a motion in a breach of contract case.

Chapter 14 is titled "Always start with a statement of the main issue before fully stating the facts." That statement itself is not groundbreaking. Most appellate court rules require that the "Questions Presented" appear in the first one or two sections of the brief. Trial courts benefits as well by learning the issue before reading through all of the facts. But what is interesting is how the authors recommend that you phrase the issues.

The statement of the issue should contain enough of the facts to make it informative, even slightly persuasive. I must admit that all of my issue statements in my appellate briefs have probably started with something like "Whether the trial court erred...etc." That's how I thought you were supposed to do it.

But compare these two issue statements provided by the authors: (1) Whether the appellant was in total breach of the contract; and (2) The appellant delivered a load of stone two days late under a contract not providing that time was of the essence. Was the appellee entitled to reject the delivery and terminate the contract? The second one is obviously more informative. It could probably be a little more persuasive, but you get the idea. I am definately going to start paying more attention to issue statements in my legal writing.

Stay tuned for more tips.

Class Action Lawsuits

I have been filing claims in class action lawsuits for many years. For some reason, I have a knack for finding interesting class actions cases that apply to purchases I have made in the past. I have received as settlements, from what I can remember, and among other things, a $25 check and a gift certificate for a free music CD, but now I'm moving on to larger settlements. I'm sure that most of you have heard about the class action against Bar-Bri. I read recently that all class members can potentially receive up to $250 dollars as part of that settlement. If you haven't heard about that one yet, however, you are too late. The time for filing claims passed sometime last fall. (Sorry.)

But, I have two new ones for you. Check out this article from today's National Law Journal. The 6th Circuit Court of Appeals recently affirmed a federal court summary judgment ruling in a class action case against Access Group, the student loan provider. Apparantly, Access Group has charged each of its borrowers about $700 in improper interest charges. All of my student loans are through Access. I don't expect a huge settlement check, but it could be decent. The articles does not contain any specific information about when or where to file claims, but identifiable, potential class members are sometimes notified by mail, and the courts usually set up websites to handle online claims.

But, here is the good one. There is a monster class action suit against DeBeers, the global diamond cartel responsible for almost half of all diamond sales worldwide. Go to www.diamondsclassaction.com for more information. From what I understand, claimants will receive up to 10-15% of the purchase price back for any and all diamonds purchased between January 1, 1994 and March 31, 2006. I got lucky again, considering that I purchased an engagement ring during that time period. I just filed my claim online. Claimants do not need documentation for purchases less than $10,000. Simply fill in the price that you paid for any and all diamonds purchased during the subject time period, and wait for your check.

Please note that the last date to file claims in the diamond case is May 19, 2008.

Making Your Case

The next book that I am going to read is called Making Your Case: The Art of Persuading Judges. It is a new book written by Justice Antonin Scalia and Bryan A. Garner. Clink here for Bryan A. Garner's website. He is the founder of LawProse, Inc. He looks like a really smart guy.

Anyway, the book contains specific and valuable advice on how to persuade judges through all stages of your case. It is divided into four main sections: General Principles of Argumentation; Legal Reasoning; Briefing; and Oral Argum