Thursday, February 25, 2010

Welcome Stephen Butler!

The Northern Law Blog is pleased to announce Stephen J. Butler as a contributor to the site. Stephen works at SmithAmundsen’s Woodstock office and is a member of the firm’s Insurance Services Practice Group and Family Law Group. He is a 1998 graduate of the NIU College of Law.

Stephen has a background in both making insurance policy coverage determinations and resolving coverage disputes. He also has experience directing civil litigation in a variety of areas of real estate, including title disputes, mortgage and mechanic lien foreclosures, and mortgage fraud. In addition to his insurance practice, Stephen provides family law counseling and legal services.

Prior to joining SmithAmundsen, Stephen was a civil and criminal litigator in Bonney Lake, Washington. He was also an Assistant Vice President and in-house claims counsel for a financial company in Chicago, Illinois.

Welcome aboard Stephen!

Wednesday, February 24, 2010

Corporal Punishment

I am preparing for a hearing on an order of protection filed by the mother of child who was disciplined by the father over a homework disagreement. I represent the father. Without getting into intimate details, my client barely laid his hand on the child.  No bruises, marks, etc. I came across this language in case while doing some research. I thought you might be interested.

A parent's "right" to corporally punish his or her child is derived from the right to privacy, which is viewed as implicit in the United States Constitution. This right to privacy encompasses the right to care for, control, and discipline one's own children. "Discipline" has been interpreted by the courts to extend to reasonable corporal punishment. In Re F.W. and C.W., Minors, 261 Ill.App.3d 894 (4th Dist. 1994).
They're infringing upon my client's constitutional rights!!! Does anyone have Professor Schlam's phone number?!!??!

Wednesday, February 17, 2010

IP Basics - Part 1

Intellectual property (IP) includes patents, trademarks, copyrights and trade secrets. Simplistically, patents protect discoveries and inventions; trademarks protect words, phrases, symbols and/or designs associated with goods and/or services; copyrights protect artistic works; and trade secrets protect secrets within a company, organization, etc. Note that none of the above protects “ideas,” and in and of themselves, ideas are not protectable.

IP is a nontangible asset that is generally treated as real property. As such, a patent, trademark, etc., can be part of an estate, bankruptcy proceeding, contract for sale or license for use. In dealing with IP, an attorney has a duty of due diligence to determine the status of the IP. For example, the term or life of a utility patent is twenty (20) years from the date of filing. However, if appropriate maintenance fees are not paid to the U.S. Patent and Trademark Office (USPTO) throughout the life of the patent, the patent becomes abandoned (due to non-payment of maintenance fees) and thus non-enforceable before the 20 year lifetime has expired. Trademarks and copyrights can also expire/become abandoned. As such, a piece of IP can be over-valued or under-valued based on its status. It is also of interest to note that malpractice insurance for IP attorneys is among the highest in the industry due to the potential liability for missing a filing date, maintenance fee date, etc.

Issuance of U.S. patent is the exclusive domain of the USPTO. A word, phrase, etc. can be federally registered as a tradmark with/through the USPTO, however this is not required in order to have trademarks rights in the word, phrase, etc. Likewise, an artistic work can be federally copyrighted through the U.S. Copyright Office, however this is not required. The main benefit for federal registry of a trademark is the issuance of trademark rights throughout the U.S. and its territories. The main benefit of a federal registered copyright is that statutory damages are granted in the event of copyright infringement and thus proof of damages is not required.

Text me.

A Las Vegas personal injury lawyer has introduced TV ads with a text number that can be used to contact his firm after an accident.

Lawyer Ed Bernstein has spent $50,000 in the past year in his texting initiative, the Las Vegas Review-Journal reports. Berstein had to sign agreements with every cell carrier for his new dedicated texting number and he has to pay monthly fees for the service.

Consumers who text Bernstein will get an automatic response with five options. They include tips on what to do after an accident, a chance to schedule an appointment, and an opportunity to get a phone call from a lawyer.

I'm surprised this took so long. I'm not surprised, however, that the first lawyer to do it represents injured people in Las Vegas.

For what other areas of the law would this work? I suppose criminal lawyers will be next. You should be able to text you lawyer right after you get pulled over leaving the tavern, but before the cop approaches your window.

Tuesday, February 16, 2010

Job Opening

The law firm of Franks, Gerkin & McKenna P.C. in Marengo, Illinois seeks an attorney with 4-6 years experience in Bankruptcy, Foreclosures, and Commercial Litigation.

Applicants should contact Herb Franks at

Monday, February 15, 2010

Home Repair and Remodeling Act

There remains some confusion across Illinois as to the current state of the Home Repair and Remodeling Act. The Act has been the subject of several recent appellate court opinions and not all of them have been consistent.

Fortunately, Nathan Hinch, a real estate and construction lawyer in Wheaton, Illinois is doing a fantastic job of interpreting the current status of the law on his blog. He just posted his fifth article in an ongoing series concerning the Act.

Nathan started with an examination of the statute itself. Now he is in the process of analyzing all of the Appellate Court cases by district. Here is a link to today's post. From there, you can link to all of his past posts. Continue to check back because he is still working his way through the districts.

Watch where you walk!

In a recent Cook County Court of Appeals case, Judge Antonietti decided that Metra did not owe Donald Pence a duty to tend to a protruding bolt from a railroad tie.

Both the arguments and decisions were very interesting. Pence, on his way to the Metra train, tripped and fell from a protruding railway tie bolt. As a result he sustained what I assume is a colles fracture. (A common fracture in the wrist as people try breaking their fall with their hands). Pence argued Metra owed him a duty as a passenger to maintain its premises. However Metra claimed they owed no duty to Pence because Pence was not a passenger at the time of his trip and fall and he did not walk in the designated pedestrian crosswalk.

J. Antonietti affirmed the lower court’s opinion stating, “while Pence may have intended to be a passenger on a Metra train, he had not yet become a passenger at the time of his fall. Pence had not yet reached a ‘proper place to be transported’ and we cannot say that Metra had even impliedly accepted him for transportation.” Skelton, 214 Ill. App. 3d at 572.

Moreover The Tort Immunity Act applied because Pence did not walk in the designated pedestrian crosswalk, rather he walked in the middle of the intersection. Therefore Pence was “not an intended and permitted user of the property”.

Moral of the story, watch where you walk and use crosswalks.

Saturday, February 13, 2010

Law Blog Representatives Meet the Dean

The NIU College of Law Alumni Association recently held a reception in Naperville to introduce Dean Rosato. The Northern Law Blog was well represented at the reception. From right to left, contributors Cynthia Edwards, Mike Huseman, Brenda Boettcher Smith, and Neal Smith. Also pictured is Donald Potts.

Usage Tip of the Day

According to Bryan A. Garner, the editor of Black's Law Dictionary and subject of past Law Blog posts, four different variations of the term "attorney's fees" appear in the Illinois Compiled Statutes.

Mr. Garner also edits the Dictionary of Modern Legal Usage which sets forth the recommended usage for the four different variations.

(1) "Attorney's fees" is the most prevalent spelling contained in the Illinois statutes and in common usage. (2) "Attorneys' fees" is fine for plural possessives (more than one attorney). (3) "Attorney fees" is not recommended, but is used frequently. (4) "Attorneys fees" appears in the statutes, but is not to be used in common usage.

If you like these kinds of tips, you can sign up to receive Mr. Garner's Usage Tip of the Day from his website

Wednesday, February 10, 2010

Welcome Mark Harper!!

The Northern Law Blog is pleased to announce the addition of Mark Harper as a contributing writer. Mark is a patent lawyer at Gifford, Krass, Sprinkle, Anderson & Citkowski, P.C., in Troy, Michigan.

Mark earned his B.S. and M.S. in Metallurgical Engineering and his Ph.D. in Materials Science & Engineering in 1992 from Ohio State University. Mark then received his law degree from NIU in 2005, where he graduated magna cum laude. He was a member of the NIU Law Review and a semi-finalist in the 2004 NIU Moot Court competition.

During his studies at Ohio State, Mark was selected as a B.F. Goodrich Young Inventor and issued one patent for his graduate research. Following graduation he was a Fulbright Postdoctoral Fellow at the University of New South Wales in Sydney, Australia.

Before returning to school to pursue his law degree, he worked as a research engineer in the metals industry where his research interests included high temperature corrosion and alloy development. In addition, he served as principal investigator on two government funded alloy development programs, one involving a large collaboration between two universities and a national laboratory.

Mark has over thirty publications and one patent in the material science field. This is a tremendous addition to the Northern Law Blog. We look forward to hearing from Mark about recent developments in IP law.

Saturday, February 6, 2010

Limitations Refresher Course

I came across a very clear explanation of the difference between a statute of limitations and a statute of repose while doing some research. I thought you might be interested.

"[A] statute of repose differs from a statute of limitations in that a statute of limitations governs the time in which lawsuits may be commenced after a cause of action has accrued, while a statute of repose extinguishes the action itself after a fixed period of time, regardless of when the action accrued." DeLuna v. Burciaga, 223 Ill. 2d 49, 61 (2006).

A statute of limitations generally does not begin to run until the plaintiff discovers (or reasonably should have discovered) his injury. By contrast, a statute of repose generally begins to run at the time of the defendant's allegedly culpable act and cuts off theright to bring a claim after a certain period of time,regardless of when or even whether the plaintiff discovers that the defendant's act caused him injury. Hinkle v. Henderson, 85 F.3d 298, 301 (7th Cir.1996)."

Tuesday, February 2, 2010

Coaching Witnesses.

A recent federal case out of the Fifth Circuit considered how far lawyers can go when coaching their witnesses prior to a trial or deposition. The case Ibarra v. Baker sent a strong reminder that witness preparation has its limits.

In that case, the court upheld sanctions against the attorneys who were defending police officers in a Section 1983 case. The defendants asserted that they had reasonable suspicion for detainment of the plaintiff, while the plaintiff alleged otherwise.

The district court found that the defense lawyers had essentially planted two new terms of art into the case through their preparation of two witnesses. The witnesses began using the terms "retaliation" and "high-crime area" late in the lawsuit and only after preparation by their attorneys.

The late timing of the appearance of these terms, combined with some notes taken by one of the witnesses during the preparation, led the district court to find that the attorney's conduct was sanctionable.

This reminds me of the great book Anatomy of a Murder by Robert Traver that we had to read in Crim Law I with Professor Schmall. You will recall the great scene in that book where the defense lawyer counsels his client on the different mental states required to charge different levels of murder. After hearing his lawyer's explanation, the client in that book "remembers" exactly what happened the night the man who raped his wife got murdered. Great book.