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The law blog of Aurora attorney Mike Huseman, featuring practice updates authored by Northern Illinois University College of Law alumni, as well as guest contributions from non-NIU lawyers and law students.
Wednesday, July 29, 2009
Great client.
I'm sure most of you have heard about the defamation suit filed by the Cook County landlord against one of its tenants for comments allegedly made by the tenant on twitter.
I don't have any comments about the merits of that lawsuit. But I do like the mentality expressed by the landlord's representative in the Sun-Times article this morning.
"We're a sue first, ask questions later kind of an organization," he said, noting that the company manages 1,500 apartments in Chicago and has a good reputation it wants to preserve.
I don't have any comments about the merits of that lawsuit. But I do like the mentality expressed by the landlord's representative in the Sun-Times article this morning.
"We're a sue first, ask questions later kind of an organization," he said, noting that the company manages 1,500 apartments in Chicago and has a good reputation it wants to preserve.
I need more clients like that guy.
Thursday, July 23, 2009
Mandatory Arbitration is a Mandatory Waste of Time
Those of you who practice civil law know that cases which are deemed less than a particular jurisdictional amount are assigned to the mandatory arbitration call. Presumably, this is supposed to provide a more efficient way of disposing of "lesser" cases. Unfortunately, it does the exact opposite. Anyone that has participated in mandatory arbitration will know what I am driving at.
There really is no great victory at an arbitration hearing. Case in point. Assume, as a plaintiff, you put on your absolute best case and the abitrators give you a great award. The judgment is not worth the paper it is written on. Since the other party has the right to reject the award, pay a nominal fee, and proceed to trial, your great award will last a mere 30 days. Likewise, if a defendant obtains a low judgment or the ultimate victory, a not guilty, the plaintiff will reject the award and proceed to trial. Hence, you are left with a plaintiff who must tries his or her best to present a case that is strong, but not too compelling, since ultimately that good award will be rejected and a defendant who must make sure that a not guilty does not occur.
What are you left with? A long delay in getting the case to arbitration and one side having to pay an additional fee so that you can proceed to jury trial when you should have been on that path to begin with.
The better option would be an optional arbitration system. If two parties would like to see if they can resolve the case before a 1 or 3 panel arbitration, they can share the fees and reject without consequence. Indeed, cases are often disposed of more efficiently, with both parties relatively comfortable with the outcome, during voluntary mediation.
There really is no great victory at an arbitration hearing. Case in point. Assume, as a plaintiff, you put on your absolute best case and the abitrators give you a great award. The judgment is not worth the paper it is written on. Since the other party has the right to reject the award, pay a nominal fee, and proceed to trial, your great award will last a mere 30 days. Likewise, if a defendant obtains a low judgment or the ultimate victory, a not guilty, the plaintiff will reject the award and proceed to trial. Hence, you are left with a plaintiff who must tries his or her best to present a case that is strong, but not too compelling, since ultimately that good award will be rejected and a defendant who must make sure that a not guilty does not occur.
What are you left with? A long delay in getting the case to arbitration and one side having to pay an additional fee so that you can proceed to jury trial when you should have been on that path to begin with.
The better option would be an optional arbitration system. If two parties would like to see if they can resolve the case before a 1 or 3 panel arbitration, they can share the fees and reject without consequence. Indeed, cases are often disposed of more efficiently, with both parties relatively comfortable with the outcome, during voluntary mediation.
Wednesday, July 22, 2009
Agreed Orders
Can a party vacate an agreed order? That was the question answered by the court in Rolseth v. Rolseth, 907 N.E.2d 897 (Ill.App. 2 Dist. 2009), which originated out of Kane County.
In that case, the former husband petitioned to declare the nonexistence of a parent-child relationship between him and two of his former wife's children for whom he had been paying child support. That petition was resolved by way of an agreed order. Thereafter, the former wife filed a motion to vacate the agreed order. Her motion was denied and she appealed.
The appellate court noted that an agreed order is not an adjudication of the parties' rights, but rather a record of their private, contractual agreement. The court further noted that once an agreed order is entered, it is generally binding on the parties and cannot be amended without the consent of each party.
There are exceptions to that general rule, however. After a discussion of the case law and statutes dealing with modifying and vacating agreed orders, the court held that agreed orders may be modified or vacated only upon a showing that meets the standard applied to Section 2-1401 petitions, which require a showing of a meritorious defense or claim as to the underlying issue.
In that case, the former husband petitioned to declare the nonexistence of a parent-child relationship between him and two of his former wife's children for whom he had been paying child support. That petition was resolved by way of an agreed order. Thereafter, the former wife filed a motion to vacate the agreed order. Her motion was denied and she appealed.
The appellate court noted that an agreed order is not an adjudication of the parties' rights, but rather a record of their private, contractual agreement. The court further noted that once an agreed order is entered, it is generally binding on the parties and cannot be amended without the consent of each party.
There are exceptions to that general rule, however. After a discussion of the case law and statutes dealing with modifying and vacating agreed orders, the court held that agreed orders may be modified or vacated only upon a showing that meets the standard applied to Section 2-1401 petitions, which require a showing of a meritorious defense or claim as to the underlying issue.
Monday, July 20, 2009
New Forms Archive
Check out the new Forms Archive section beneath the contributors' names on the right side of the page. After posting a link to a new subpoena form that I created this morning, I thought that we should have a place where all of the contributors could post their forms. It would be nice to eventually have form complaints, motions, etc.
If anyone wants to post a form, let me know and I can send you the link for full access. Also, if anyone desires a form, post a request and one of our contributors will hopefully be able to upload a copy.
If anyone wants to post a form, let me know and I can send you the link for full access. Also, if anyone desires a form, post a request and one of our contributors will hopefully be able to upload a copy.
New Subpoena Form
As of June 1, 2009, subpoenas in Illinois civil actions can now be issued by attorneys. This is obviously more convenient than driving to the courthouse every time you need to issue a subpoena.
735 ILCS 5/2-1101 now provides that "An attorney admitted to practice in the State of Illinois, as an officer of the court, may also issue subpoenas on behalf of the court for witnesses and to counties in a pending action."
I am not aware of any circuit clerks that have printed new forms yet. I have heard some lawyers say that they are using the old forms, but just signing their own name on the line where the circuit clerk used to sign.
There is a new form being circulated on the ISBA email exchange which provides a spot for issuance by the clerk, or issuance by an attorney. I have modified the form to suit my personal preferences.
Here is a link to the document. Feel free to modify this form for your own use.
735 ILCS 5/2-1101 now provides that "An attorney admitted to practice in the State of Illinois, as an officer of the court, may also issue subpoenas on behalf of the court for witnesses and to counties in a pending action."
I am not aware of any circuit clerks that have printed new forms yet. I have heard some lawyers say that they are using the old forms, but just signing their own name on the line where the circuit clerk used to sign.
There is a new form being circulated on the ISBA email exchange which provides a spot for issuance by the clerk, or issuance by an attorney. I have modified the form to suit my personal preferences.
Here is a link to the document. Feel free to modify this form for your own use.
Friday, July 17, 2009
No cause of action for emotional damages only.
The plaintiff in Morris v. Harvey Cycle & Camper, Inc., No. 1-07-3271, 2009 WL 1685137 (1st Dist. June 12, 2009), alleged a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, but she claimed only emotional distress, inconvenience, and aggravation as her damages. She had no actual damages. It is hard to believe this case was filed, much less appealed. But I guess I will give some credit to the plaintiff's attorneys in their attempts to expand Illinois tort law to include compensation for aggravation only. Just think how many lawsuits you would have been able to file this week alone if they would have succeeded.
Defendant's conduct did seem pretty outragous though. In that case, plaintiff's brother Shawn made a down payment on a car at defendant’s dealership with the sale contingent on financing. Shawn was allowed to use the car while defendant attempted to arrange financing. After several days, defendant’s employees called Shawn and asked him to come to the dealership to re-sign some loan papers. Plaintiff accompanied Shawn to the dealership. After they arrived, they learned that Shawn had not qualified for financing. Shawn then offered to return the car in exchange for the return of his down payment.
Plaintiff alleged that defendant’s employees then pressured her to cosign the loan so the deal could go through. When she refused, defendant’s employees started yelling at her and Shawn and blocked the car to prevent them from leaving the dealership. The employees then called the police, reporting the car as stolen. Several squad cars and police officers arrived at the scene. Defendant’s employees told the officers that plaintiff and Shawn had stolen the car. Police officers considered that a false report. Police officers then told defendant’s employees to stop trying to intimidate plaintiff and Shawn. Shawn eventually returned the car and got back his down payment.
Plaintiff alleged violation of the Consumer Fraud Act. The trial court dismissed plaintiff’s complaint for failure to state a cause of action. The Appellate Court affirmed. The Court found that only a person who suffers actual damages as a result of a violation of the Consumer Fraud Act may bring a private action under the Consumer Fraud Act.
Thursday, July 16, 2009
Bar Review Rant
As you all fondly recall, the Bar Exam occurs during the last week of July. This year's exam is less than two weeks away. HERE is a link to a blog which reprints an absolutely hilarious email being forwarded among this year's examinees. Enjoy!
Monday, July 13, 2009
Judge finally rules on 24 year-old motion.
From the Associated Press:
GREAT FALLS, Mont. – The wheels of justice grind slowly, but this is pushing the envelope. In Montana's Toole County, retired District Judge Ronald McPhillips ruled this week in a lawsuit that was left hanging for nearly a quarter-century. The judge ruled in Great Falls against Milan Ayers, who contended that former partner James Rubow swindled him out of his share of a natural gas field, with leases potentially worth millions of dollars.
The lawsuit was filed March 31, 1983. The last entry in the clerk's register was in March 1985. Then the file disappeared from the clerk's office.
After the Great Falls Tribune wrote about it, McPhillips found the case documents.
"I think he found it in an old briefcase he had at home," said longtime administrative assistant Elda Nichols, who had worked for McPhillips before his retirement in 1994.
McPhillips brought the lawsuit and his notes to the court late last week, said Nichols, and District Judge Laurie McKinnon asked the Montana Supreme Court for guidance on how to proceed.
If the case is in good shape, let McPhillips rule on it, the judge was told.
On Monday, McPhillips ruled that Rubow did not breach his agreement with Ayers. The lawsuit was dismissed, and no damages were awarded.
"He had taken very good, very copious notes on the case, so it was good he was able to rule on it, and we were able to avoid a new hearing," Nichols said.
Ayers said he's uncertain whether he'll appeal.
GREAT FALLS, Mont. – The wheels of justice grind slowly, but this is pushing the envelope. In Montana's Toole County, retired District Judge Ronald McPhillips ruled this week in a lawsuit that was left hanging for nearly a quarter-century. The judge ruled in Great Falls against Milan Ayers, who contended that former partner James Rubow swindled him out of his share of a natural gas field, with leases potentially worth millions of dollars.
The lawsuit was filed March 31, 1983. The last entry in the clerk's register was in March 1985. Then the file disappeared from the clerk's office.
After the Great Falls Tribune wrote about it, McPhillips found the case documents.
"I think he found it in an old briefcase he had at home," said longtime administrative assistant Elda Nichols, who had worked for McPhillips before his retirement in 1994.
McPhillips brought the lawsuit and his notes to the court late last week, said Nichols, and District Judge Laurie McKinnon asked the Montana Supreme Court for guidance on how to proceed.
If the case is in good shape, let McPhillips rule on it, the judge was told.
On Monday, McPhillips ruled that Rubow did not breach his agreement with Ayers. The lawsuit was dismissed, and no damages were awarded.
"He had taken very good, very copious notes on the case, so it was good he was able to rule on it, and we were able to avoid a new hearing," Nichols said.
Ayers said he's uncertain whether he'll appeal.
Friday, July 3, 2009
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)
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.
See the Supreme Court's press release here.
Thursday, July 2, 2009
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 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.
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