Happy Fourth of July!

West's Headnote of the Day:

157 Evidence

157I Judicial Notice

157k21 k. Customs and Usages.

Supreme Court took judicial notice of significance of Fourth of July to American people and of fact that firearms are frequently discharged in celebration on that date.

Edwards v. Business Men's Assur. Co. of America, 168 S.W.2d 82 (1942)

New Rules of Professional Conduct

The Illinois Supreme Court has amended the Rules of Professional Conduct. The new rules take effect January 1, 2010.

Please see the Supreme Court's press release here.

Refresher Course - Hearsay

I knew a guy in college who decided to run from the police just to see if they would chase him. He had done absolutely nothing wrong, but he was walking past two police officers, made eye contact, and then took off running just to see if they would chase him. They did. But they didn't catch him. We all had a good laugh about that one. We never could figure out why they were chasing him. What my friend did not know was, that under Illinois' statutes, he could have been charged with resisting a peace officer (if they would have caught him).

The defendant in People v. Sorrels, 906 N.E.2d 788 (Ill.App. 4 Dist. 2009) was approached on foot by a police officer for no reason whatsoever. The police officer testified that he drove past a church and saw three men standing in the doorway. He circled the block and when he came back around, the three men were still standing in the doorway. So he decided to park his car and go investigate this outrageous and egregious display of three people standing on a sidewalk doing nothing wrong. Two men stayed, but one man ran. The officer yelled "stop," but the man did not stop. The police officer eventually caught the man. The man was arrested for nothing other than resisting a peace officer. He was eventually convicted.

Defendant appealed. One issue on appeal was whether the officer's testimony that he yelled "stop" was inadmissible hearsay. Hearsay, as you recall, is defined as an out-of-court statement offered to prove the truth of the matter asserted. The court, however, went on to explain that many out-of-court utterances fall within such categories as "greetings, pleasantries, expressions of gratitude, courtesies, questions, offers, instructions, warnings, exclamations, expressions of joy, annoyances, or other emotion, etc." The court found that such utterances "are not intended expressions of fact or opinion. They are not assertions, at least for purposes of the hearsay rule. Thus they are not hearsay."

I completely agree that the officer's statement is not hearsay, but I don't necessarily agree that you can simply say that greetings, instructions, warnings, etc. can never be hearsay. That seems a little too easy. Maybe if this appellate court would have written our evidence text book it wouldn't have been 1600 pages long.

The Drainage Code.

I handled a drainage case a couple of years ago. My client's basement flooded after the neighboring farm was developed by a local home builder. We alleged that the defendant had, by artificial means, changed the natural drainage of its real estate in such a manner that water flowed onto my client's property in a quantity greater than that which had flowed naturally.

That case settled relatively quickly, so I did not have a chance to become a true drainage law expert, but a recent drainage law case from the Illinois Supreme Court caught my eye. In that case, the Christensen family started subdividing its 100 acre farm in 1994. Plaintiffs bought 65 acres. Defendants bought 19 acres directly south of plaintiffs' land. Water from plaintiffs' property drained in a south-easterly direction, right onto defendants' property.

Long before they sold it, the Christensens had installed clay drainage tile on their property. When plaintiffs' purchased their portion of the property, the tile needed extensive repairs and plaintiffs wanted to replace the clay tile with corrugated plastic tile. Because it was a unified system of tile across both plaintiffs' and defendants' land, plaintiffs needed access onto defendants property to extend the new plastic tile. Defendants would not allow plaintiffs onto their property to make the necessary repairs and improvements, so plaintiffs filed suit.

Plaintiffs sought a declaratory judgment that the natural flow of water from plaintiffs’ property is over and through the property owned by the defendants and that pursuant to the Illinois Drainage Code plaintiffs should be allowed access to defendants' property to make the necessary repairs.

The Court found that if plaintiffs originally paid for construction of the tile system, or if they are successors in title to the persons who did, they have a statutory duty to keep the drainage tile in good repair. If the tile system was originally constructed by mutual license, consent or agreement of the adjacent landowners, plaintiffs then have the right to enter “upon the lands upon which the drain *** is situated and repair the drain.”

So, plaintiffs could access the defendants' property, but the defendants expressed concern that the tile work contemplated by plaintiffs would damage their fields and the existing tile. Not to worry, said the Court. In a repair case involving the land of another, the plaintiff is liable, by statute, for the actual damages caused by the repair work. 70 ILCS 605/2–6 (West 2004). Those actual damages can be resolved in proceedings conducted after the work is completed.

Media Bias.

I tried my first case in front of the media yesterday. A reporter from the Naperville Sun was in the courtroom for the nearly three-hour trial, although I did not know that at the time.

Anyway, we won the case, but the article glorifies the defendants' unfounded complaints. I could not believe the testimony coming from the defendants. The judge specifically found that the defendants' testimony was not credible. We prevailed on every issue. Then this article comes out portraying my client as the bad guy. This particular paper has been after my client for a long time.

A prime example of biased reporting here.

Online law student passes the bar exam

An online law school graduate who sued the Supreme Judicial Court of Massachusetts for the opportunity to take that state's bar examination is now a newly minted Massachusetts lawyer.

Ross E. Mitchell is the first Massachusetts lawyer with an exclusively online legal education. Last November, Mitchell won his case against the state's Board of Bar Examiners, which denied his bid to bypass a requirement that U.S.-trained applicants be graduates of an American Bar Association-accredited law school.

The court allowed Mitchell to sit for the bar because the ABA is mulling changes to its accreditation standards. Last September, the ABA launched a comprehensive review of its standards for the approval of law schools. Currently, ABA-approved schools can only allow graduates to take up to 12 credit hours of classes online.

Mitchell, who was a pro se litigant in his Supreme Judicial Court case, graduated from Concord Law School. Mitchell has also passed the California general bar examination and the Multistate Professional Responsibility Examination, and he was admitted to practice before the U.S. Court of Appeals for the 1st Circuit.

Indiana lawyers have more fun.

We need to sign up this guy as a contributor to the Northern Law Blog.

Indiana Mechanics Lien Update

Like in Illinois, people performing work on buildings in Indiana can place a mechanics lien on the property on which the work was performed. Pursuant to that State's mechanics lien act, lienable work includes the erection, alteration, repair, or removal of a building, among other things.

The Indiana Court of Appeals recently considered what qualifies as a "repair" under the statute. The case Midwest Biohazard Services, LLC v. Rodgers, 893 N.E.2d 1074 (Ind. Ct. App. 2008), concerned the clean-up and removal of a decomposing body.

Apparently Mr. Rodgers, Sr. died in his home. His body was not discovered for several days. During that time, his body decomposed causing fluids to leak into the carpet, subfloor, and down into the basement. Mr. Rodgers, Jr. contracted with Midwest Biohazard Services ("Midwest") for the clean-up and removal of his father's decomposed body. After the work was complete, Mr. Rodgers, Jr. informed Midwest that he would not be paying them.

Midwest quickly recorded a mechanics lien and filed suit to foreclose. The trial court dismissed, finding that the services did not constitute a repair under the statute. On appeal, Midwest argued that it performed repairs, but Mr. Rodgers, Jr. argued that they performed only cleaning services.

The Appellate Court looked to the purpose of the act and to the definition of the work repair. Because that word is not defined in the act, it is given its plain and ordinary meaning, which includes restoring something to its original value. The Court noted that a home free of biohazard contaminants was worth much more than a home that was full of biohazard contaminants, so the house had been repaired by Midwest and they were entitled to their lien.