Saturday, May 31, 2008

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.

Friday, May 30, 2008

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.

Wednesday, May 28, 2008

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

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?

Tuesday, May 27, 2008

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 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.


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.

Friday, May 23, 2008

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.

Monday, May 12, 2008

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 is really good. It's a quick read, but it's 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.

Tuesday, May 6, 2008

Class Action Lawsuits

I have filed claims in many class action lawsuits. If I read an article about a class action case, and if I am a potential member of the class, I will file a claim. 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 bigger and better things. 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 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.

Thursday, May 1, 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 Argument. These sections are divided into 115 short paragraphs containing very specific pointers. For instance, chapter titles advise lawyers to "Occupy the Most Defensible Terrain," "Yield Indefensible Terrain," and "Appeal to Justice and Common Sense."

The Wall Street Journal Law Blog recently profiled a couple of good chapers. Yesterday's tip was to "improve your writing by improving your reading." Specifically, by reading literature other than legal opinions. The book quotes Judge Easterbrook of the 7th Circuit when he says that “the best way to become a good legal writer is to spend more time reading good prose. And legal prose ain’t that!"

I'm taking their advice, starting with their book. I'll let you know how it goes.