Monday, May 31, 2010

Improving Cash Flow

Here is a link to a brief article by John W. Olmstead in which he gives several pointers that law firms can use to increase their monthly cash flow. There is some really good advice here about staying on top of your accounts receivable.

Thursday, May 20, 2010

Senior Paralegal Wanted

The Legal Department of The Men's Wearhouse, Inc. is looking for an experienced, senior paralegal for the Company's executive offices in Fremont, California. The position will report to the Company's Associate Counsel, Intellectual Property and Contracts.

Tuesday, May 18, 2010

Toronto woman sues phone company for revealing her affair.

A Toronto woman says the billing practices of her wireless phone company led to her husband discovering her extramarital affair.

Now the woman, whose husband walked out, is suing the phone company for $600,000 for alleged invasion of privacy and breach of contract, the results of which she says have ruined her life.

In 2007, Gabriella Nagy had a cellphone account whereby she received monthly bills to her home address in her maiden name. Her husband was the account holder for the family's cable TV service at the same address. Around June 4, 2007, he called the company to add internet and home phone.

The following month, the company mailed a “global” invoice for all of its services to the matrimonial home that included an itemized bill for Nagy's cellular service, according to the complaint filed in Ontario Superior Court of Justice.

When Nagy’s husband opened the invoice, he saw several hour-long phone calls to a single phone number. He called the number and confirmed his wife's affair.

The complaint alleges that the phone company “unilaterally terminated its cellular contract with the plaintiff that had been in her maiden name and included it in the husband’s account that was under his surname.

“The plaintiff’s maiden name and the husband's surname were different. Such unilateral action by the defendant was done without the knowledge, information, belief, acquiescence or approval of the plaintiff.”

The phone company acknowledges it “consolidated the invoicing of the various services being provided to the plaintiff and her husband” so that one monthly invoice would be sent to their home. “Apart from administrative efficiency, doing so would result in savings to the plaintiff and her husband for the services.”

Nagy is deeply embarrassed and ashamed about what happened. “It was a mistake,” she said of the affair. “But I didn’t deserve to lose my life over it.”

After her husband left her and their two children, ages 6 and 7, she was so distraught her work performance suffered and she lost her job as an apartment rental agent that had paid her almost $100,000 until she was let go in Oct. 10, 2007.

“The plaintiff wept uncontrollably at her workplace . . . and became incapable of performing her employment duties,” reads the complaint. Nagy says the employer was aware of the situation and that she was receiving medical attention.

What do you say Law Bloggers? Case or no case?

Monday, May 17, 2010

Personal Practice, a Different Perspective.

Below is an article I wrote that looks very briefly at ethical approaches when dealing with expert testimony, primarily in the area of medical malpractice, and personal practice.

***please note, although an appendix is attached below, due to formating issues the endnotes throughout the article were not properly linked.

A look at the ethical dilemma faced when establishing the standard of care through an expert’s testimony although it conflicts with the experts’ own personal practice.

Preface to the Preface

Before undertaking the pleasure of reading this article and postulating one’s own theories, it is helpful to understand the foundations of medical malpractice and the influence of an expert witness in U.S. system of law. As such, the preface to this article attempts to crudely summarize the two.


October 10th, 1794 arguably marked the nation’s first medical malpractice claim. In Cross v. Guthery , the Tolland County Circuit Court of Connecticut sent a rogue wave across the nation. This wave was in the form of a specialized area of law sought to encompass the negligence of medical professionals arising from actions during their duty of care to a patient. In Cross v. Guthery the plaintiff’s wife had developed, in modern day what is referred to as breast tuberculosis, a scrofulous humor. The diseased area of the breast required amputation, thus Dr. Guthery performed an operation to remove the tissue. During the procedure the operation, “contrary to all the well-known rules and principles of practice in such cases; and that after said operation, the plaintiff's wife languished for about three hours and then died of the wound given by the hand of the defendant.” The case was brought forth under a theory of contracts for failure to provide the requisite skill and safety to the wife of the plaintiff during the operation as contracted. A decision was made and the plaintiff was released of his debt to the physician and additionally recovered forty pounds (£40.00) for the great cost and expenses he incurred as well as the deprivation of the service, company and consortship of his wife.

Fast forwarding slightly over two centuries, today’s theory of medical malpractice rests in the area of tort law, whereby a physician with a duty to provide a standard of care, breached that duty to a patient, caused injury as it related to that breach, which ultimately led to damages incurred by the patient. The cases are heavily controversial as they typically involve complex matters which are brought to the attention of a jury panel whose duty is to determine whether or not to find the defendant is liable for, in a simple sense, negligence. Among the various facts alleged and agreed, the jury is introduced to expert testimony. As William L. Foster put it, “Gentleman of the jury, there are three kinds of liars: the common liar, the dammed liar, and the scientific liar.” Here, Foster refers to the expert witness as the “scientific liar.” Expert testimony is commonly governed by a form of Federal Rule of Evidence 702 which states,

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Because the burden of proof lies with the plaintiff he or she must in large part utilize his or her hired expert witness to establish, by a preponderance of the evidence , their case is more plausible than that of the defendant. By rigorously reviewing the medical records surrounding the case, as well as the testimony of the plaintiff and defendant, the plaintiff’s expert witness opines what standard of care would have been proper by a physician to a patient in the same or similar circumstance. As the plaintiffs expert witness and the defendants expert witness each take turn in efforts to establish what they attest to as the standard of care, they are cooperatively engaged in what is commonly known as the “Battle of the Experts.” After testimonies are presented to the jury, a person’s well being, large sums of damages, and difficult ethical dilemmas are deliberated upon after which a decision, often times subject to appeal, is made.

Medical malpractice seems simple right? Well, in theory yes, however since Cross v. Guthery medical malpractice has evolved. In fact, it continues to evolve as its roots in contract law are dilapidated then restored in tort law. However, with these evolutions in medical malpractice come new challenges. One new challenge is deciding how to deal with the ethical dilemma faced when establishing the standard of care through an expert’s testimony although it conflicts with the experts own personal practice. More specifically, is the personal practice of an expert witness an issue or not as it relates to the standard of care in medical malpractice actions? This brief article discusses the evidentiary evolution of “personal practice” through not only a utilitarian approach of ethics, but a common-good approach, rights approach, virtue approach, and justice approach.

Case Law

We delve into the issue of personal practice, using three major cases in the seventh circuit to identify the specific issue at hand. In Schmitz v. Binette , Mary Schmitz filed a complaint against Dr. Steven Binette. She alleged that:
Dr. Binette was negligent (1) in causing an obstruction in Mary's right ureter with a suture, (2) in failing to adequately monitor Mary in the peri-operative period to ascertain the presence of any damage or obstruction to her right ureter, (3) in failing to adequately monitor Mary in the postoperative period to ascertain the presence of any damage or obstruction to her right ureter, and (4) in failing to exercise the appropriate degree of skill and care in treating Mary. As a result of this negligence, the complaint alleged (1) that Mary developed hydro-uretal nephrosis of the right kidney, (2) that multiple subsequent procedures were required, (3) that her kidney became infected and lost all function, and (4) that the kidney ultimately had to be removed.

In establishing her case Mary elicited Dr. Samir Hajj, an obstetrician / gynecologist, as her expert witness. Dr. Hajj, opined that, Dr. Binnette deviated from the applicable standard of care by failing to perform an indigo carmine dye test, which would have identified an obstruction. The defendant then brought testimony from Dr. Lane Mercer who opposed Dr. Hajj’s testimony stating that, “the standard of care does not require gynecologists to perform a cytoscopy and use indigo carmine dye after an MMK procedure. ” However in a contradictory fashion, Dr. Mercer also testified , during depositions, it was his personal practice to routinely perform the indigo carmine dye tests after bladder suspension surgeries even though it increased the risk of altercations during the procedure and had a statistically significant fail rate. Dr. Mercer also added that he conducted the indigo carmine test because he was a compulsive SOB who had been in depositions for too long and too afraid not to. Similarly in Gallina v. Watson , plaintiff Vtio Gallina appealed a lower court’s decision against defendant Dr. Michael Watson alleging that he was negligent in failing to operate on a “type II” fracture. The plaintiff was brought to the hospital after being involved in a head on vehicle collision at over eighty-five miles per hour. Vito was presented to the hospital staff with a fractured jaw, left femur, pelvis, hand, and both ankles. This was in addition to his ruptured spleen. “Dr. Watson testified he did not operate on Gallina’s right ankle because it was acceptable not to do so and another surgery could have threatened Galina’s life due to the multiple surgeries already performed that night.” He further testified that, he acknowledged he agreed with his resident and knew he was dealing with a “type II” fracture when he chose not to operate on plaintiff. In an effort to provide testimony that he met the standard of care, Dr. Watson introduced his expert witness Dr. Joeseph Whalen. The expert testified that Dr. Watson met the standard of care. Yet, Dr. Watson also stated that it was his own personal practice to operate on all type II fractures. After this testimony defendant then argued that Dr. Whalen identified plaintiffs fracture as a “type I” fracture, thus the standard of care was met. The court did not agree with the last minute attempt at a cover up. Accordingly they were convinced that although the “…testimony did not prove Dr. Watson breached the standard of care by not performing an open reduction on the plaintiff, Dr. Whalen’s testimony goes to the credibility and persuasive value of Dr. Whalen’s opinion Dr. Watson’s actions were within the standard of care.” The expert testimony of personal practice was deemed acceptable to allow the jury to use it to discredit that very experts own opinion as to the standard of care.

In another instance, plaintiff Dorthy Rush brought suit against defendant Dr. Mostafa Hamdy. She alleged she suffered damages sustained when he perforated her esophagus while performing an esophageal dilation. In 1986 Dorthy was determined to have 1.5-centimeter Schatzki’s ring which was dilated with a 1.8-centimeter dilator. However after the procedure the Schatzki’s ring returned. For that reason, Dorthy sought the assistance of Dr. Hamdy who only obtained records of a two year old barium swallow test. Although Dr. Hamdy testified he knew that Dorthy had an esophageal dilation procedure before, he failed to provide records that indicated this. According to the facts, Dr. Hamdy scheduled Dorthy for another dilation procedure, and with multiple dilators available; he chose to use a 4-centimeter dilator! After maintaining five millimeters of mercury for five seconds , “Dorthy complained of pains, and the procedure was terminated.” After the termination, Dorthy had nausea, dry heaves, and chest pain. Dr. Hamdy then altered medical records, “changing the measurement of the opening of the Schatzki’s ring from 1.5-centimeteres to 2.5 centimeters and changing the pressure maintained from 500 millimeters mercury to 5 pounds per square inch.” Dr. Stehpen Holt, a specialist in internal medicine and gastroenterology testified Dr. Hamdy did not meet the standard of care because he did not determine the proper placement of the dilator, he did not use radiology to determine the proper measure of the Schatzki’s ring, he used an achalasia dilator , and using a dilator measuring four centimeters was inappropriate. The defendant’s introduced expert witness Dr. Michael Shekleton, a practicing gastroenterologist, testified that an achalasia dilator to treat a Schatzki’s ring would be appropriate. Contrary to this testimony, Dr. Shekleton testified that he had never heard of an achalasia dilator being used on a Schatzki’s ring prior to the matter between Dorthy Rush and Mostafa Hamdy. Even more so Dr. Shekleton stated had Dorthy been his patient, he would have treated her with a savary dilator .
All of the above cases present a conflict which arises when an expert witness establishes that the standard of care is one thing, yet, for various reasons, their own personal practice is to provide care that varies from what they just testified as the standard of care. Furthermore the prevailing decision in the seventh circuit, as well as the nation, is to allow the testimony of the physician’s personal practice as it allows the jury to weigh the expert’s testimony against their credibility prior to deliberations. As convincing as this may seem, on the ethical front the arguments and opinions can be far different and even more difficult to discern.
Ethical Approaches

Often times the decisions of judges are strictly based on a set facts and rules. The method allows for a stricter standard, a more black and white approach . Ethical approaches, while important, create grey areas which are often times avoided. In fact they are especially avoided when dealing with cases of first impression. Although the area of medical malpractice is not any new area of law, as time progresses, new challenges are brought forth. The personal practice of a physician has traditionally been barred from testimony. The point of judgment on a case of medical malpractice is the standard of care and whether or not it was breached, however when an expert witness identifies a standard of care but in his own personal practices does more than their own standard of care, some attorneys argue that the credibility of an expert must be allowed into consideration. In an effort to navigate through these waters, this ethical analysis will focus generally on two consequential, two normative, and one deontological approach. More specifically the analysis will focus on the utilitarian, common good, rights, virtue, and justice approach.

Consequential Approaches:

Consequentialism is a theory of ethics where the approach judges the quality of the act by the end it achieves. If it maximizes some goal, it is the appropriate choice . Essentially, the end justifies the means.

Utilitarian Approach:

The first ethical approach when delving into this matter is known as the utilitarian approach. For this frame work we, “[f]irst identify the various courses of action available to us. Second, we ask who will be affected by each action and what benefits or harms will be derived from each. And third, we choose the action that will produce the greatest benefits and the least harm. ”

In accordance with the analysis above when exploring this approach the action available to us is that the judge may either allow or not allow the testimony of the experts’ personal practices to be heard by the jury.

Next we explore who is affected when the testimony is allowed. In one respect the permission to allow the testimony of personal practice affects the defendant physicians adversely while being favorable to plaintiffs. The testimony creates another angle of holding an expert responsible to their testimony. If their preaching deviates from their practice, they face being perceived less credible by the jury, which in effect may deter attorneys from obtaining experts who would testify on the basis of any interest other than justice. In another respect plaintiffs can implicitly drive physicians to increase the standard of care. When the jury hears the testimony, it will likely create a negative impression on the jury. The jury could potentially accept the higher degree of care performed by the expert physician and, while not realizing it, create a newer and higher standard of care. Almost instantly the defendant’s practices are implicitly discredited, even though they may have been within the standard of care. Essentially each time this sequence of events would occur, plaintiffs force a higher standard on physicians practicing in the medical arena. Similarly this sequence of events could work adversely for the plaintiffs. Although at first the standards would increase, physicians could potentially decrease their standards of practice and uniformly practice medicine via a set standard. In a sense medicine could possibly be practiced at a general level, rather than an individual specific level. The fear could direct physicians in the future to follow a strict standard operating procedure based on their check of the patients’ symptoms. Without doubt this has the potential of severely and adversely affecting patients nationwide.

On the other hand, not allowing the testimony creates, a potential for various standards of care in terms of individual procedures. However, this is what the medical industry prefers, as medicine is not uniform practice. Rather medicine is an individualistic art, which patients with unique symptoms require individual observations, assessments, and prognoses. This directly benefits the defendants as it allows physicians to practice medicine to the best of their ability. Conversely it gives physicians room to negotiate if for any reason they did not provide the proper standard of care. Perhaps, providing physicians with too much flexibility and freedom from accountability? Arguably the human life is invaluable, and one of the greatest benefits is maintaining life over death. Those who acknowledge the responsibility of a human life must be required to meet those strict standards however the lack of pressure can create a venue of escape from responsibility.

In this light allowing the testimony of the expert witnesses personal practice projects a compelling interest. Not allowing the testimony also projects an equally compelling interest, however the human life is a benefit that carries great weight and in light of the cases mentioned above, the courts using a utilitarian approach would have ascertained a result that agreed with their legal analysis.

Common Good Approach:

The common good approach to ethical analysis focuses on ensuring that the social policies, social systems, institutions, and environments on which we depend are beneficial to all.

With the great weight of human life, the issue of personal practice testimony, in terms of social policy, would be encouraged. The testimony would likely provide an increase in the knowledge to the multiple approaches available to the patients. This implicitly creates a higher sense of accountability within physicians because it forces the physician to ask themselves, “what other approaches are available, and what are the ramifications of my actions with this procedure?” Personal practice testimony will also act to defend a physician who may have appropriately dealt with the patient as well as bring scrutiny to the practices of those physicians who allegedly did not meet the standard of care. However, they equally and unduly burden physicians. A physician can only be held to the standard that they should know of. Expecting a physician to practice the standard of care and then above and beyond practice what another physician might do, although idealistic, is not realistic. If anything it is the beginnings to a recipe for disaster. The effect could also cause a standardization of medical practice as measured above, where at first the standards would increase, physicians could potentially decrease their standards of practice and uniformly practice medicine via a set standard. In a sense medicine could possibly be practiced at a general level, rather than an individual specific level. Additionally under this ethical outlook, one could tenuously argue if the personal practice testimony was allowed, insurance costs as well as medical institution costs could eventually rise due to the added potential liabilities that each physician would have to seek protection against thereby shifting the disadvantage to the patients again. The argument suggest a chain of events which only return the system as a whole to the same point it was at before, except the difference is that the costs would be notably more.

Although the weight of personal practice testimony is high, it is outweighed by what is beneficial to all. Initially it may seem beneficial to all but, it would be difficult to find the happy medium when choosing to accept the personal practice testimony. Further the long term effects of allowing personal practice testimony would be more adverse to all than beneficial.

Normative Approaches:

Normative approaches to ethics are focused on studying what make actions right and conversely what makes those actions wrong.

Rights Approach:

The rights approach simply asks, “Does the action respect the moral rights of everyone? ” Actions are wrong to the extent that they violate the rights of individuals; the more serious the violation, the more wrongful the action.” As simple as the question is, the application of it can be very difficult to discern if broadly analyzed, thus we will narrowly focus the analysis.

In evaluating the moral rights, the permission to allow the testimony of the expert we address the rights of the participants in the proceedings. First, the plaintiffs’ rights are addressed as the experts personal practice can aid in making their claim. It also provides them the ability to protection from expert witnesses that are motivated by anything other than the interest of justice. Second, the defendants’ rights are addressed as the experts personal practice will either corroborate their actions or contradict them. Morally speaking, the interest of justice is what is morally right, the fact that the defendant maybe seen in an adverse light does not influence this perspective. Third, the rights of attorneys are respected when allowing the testimony the experts’ personal practice. Each attorney has the right to protect their client vigilantly, and must be able to inform the jury as to the standard of care. The personal practices are helpful for to the attorney to convey what the standard of care really is. Similarly, as stated above, morally speaking, the interest of justice is what is morally right; the fact that the defendant may be seen in an adverse light does not influence this perspective. Lastly we consider the jury’s rights. The jury is faced with unquestionably the most difficult task in the matter, which is to decide what will be the outcome of the trial. The jury members must, in order fulfill their moral rights, be able to hear the full testimony, including the discrediting testimonies to make a proper deliberation.
Using the rights approach, it is highly probable one would confer the use of the rights approach would lead to the admissibility of an experts personal practice in order to maintain the majority of moral rights of the majority people.

Virtue Approach:

The virtue approach is another approach under the normative view of ethics. This view establishes the task of not only doing what is right but also what will encourage right. It solicits the inquirer to ask, “what kind of person should I be, what will promote the development of character within myself and my community? ”

Using this approach, similar to a consequentialist approach, asks the individual to assess the outcome. It guides the individual to promote the development of character with one’s self and the community. In this sense it is likely that the one using this approach would allow the personal practice testimony as it would encourage the best of one’s self as well as the community. As discussed in prior approaches the testimony would implicitly drive physicians to increase the standard of care out of fear of not doing “enough”. The jury could potentially accept the higher degree of care performed by the expert physician and, while not realizing it, create a newer and higher standard of care due to their dismissal of the actual standard of care. The virtue approach in a nutshell views the experts personal practice as informative as it would likely yield other to those higher standards.
Thus accepting the personal practice testimony of an expert using a virtue view of ethics creates a “better person” and promotes the development of character within one’s self and their community.

Deontological Approach:

The deontological approach of ethics is the most common form of ethics characterized in the field of law, as it focuses on the duty of a person while weighing together their moral obligations and rules the individuals must adhere by. It is sometimes described as "duty" or "obligation" or "rule" based ethics, because rules "bind you to your duty"

Justice Approach:

Under the broader form of deontology, is the justice approach. It asks, “[h]ow fair is an action? Does it treat everyone in the same way, or does it show favoritism and discrimination?” Thereafter it weighed against the interest of justice.
In analyzing how fair or just allowing the testimony of the personal practice of a witness is, we decipher whether it shows favoritism or discrimination. On one hand to allow the personal practice testimony of a physician would show favoritism for the benefit of the plaintiff. It could allow the personal practice testimony of a physician who may have been superseding the standards of care for various reasons, thereby making it seem that, in the context of the cases mentioned above, as if the defendant did not meet the standard of care. On the other hand the barring of the experts personal practice testimony could likely hinder the ability for the plaintiff to plead their case, thereby creating a discriminatory effect for the plaintiff.
The approach seems equally compelling on each side, however in light of justice, the scales tip to the side of allowing the personal practice testimony of an expert physician. This specifically provides protection to the plaintiff from those few expert witnesses who may be motivated by anything other than the interest of justice. The justifying reason itself is to ensure justice, thus this approach would allow the jury to hear the testimony and surmise their own opinion. However without hearing the testimony the jury could potentially be misled, or pointed in a direction of a decision rather than deliberating their decision.
Thus the interest of justice prevails over the disadvantages it may bring forth.


The ethical dilemma faced when establishing the standard of care through an expert’s testimony although it conflicts with the experts own personal practice is without doubt, a difficult analysis. Although one approach leads the ethicist to one conclusion, another approach could likely have a different conclusion. Recently the trend has been established in the interest of justice, thereby creating a reason to allow the experts personal practices as relevant testimony. As medical malpractice continues to evolve the need for various analyses become ever important in identifying the proper decision going forward. Although ethics may not definitively provide the proper decision going forward, it does substantially provide a means of making that decision.


[1] 1794 Conn. App. LEXIS 20; 2 Root 90, February, 1794, Decided

[1] Id.

[1] Id at 2.

[1] William L. Foster, Expert Testimony: Prevalent Complaints and Proposed Remedies, 11 HARV. L. REV. 169, 169 (1897).

[1] Rule 702. Testimony by Experts

[1] Party's duty to prove a disputed assertion or charge. The burden of proof includes both the burden of persuasion and the burden of production. Black's Law Dictionary (8th ed. 2004), burden of proof

[1] The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. Black's Law Dictionary (8th ed. 2004)

[1] [T]he degree of care that a reasonable person should exercise. Black's Law Dictionary (8th ed. 2004), standard of care

[1] Categorically simplified the following paper describes the evidentiary issue of personal practice through three overarching ethical approaches. They are, in order of discussion, consequential theory, normative theory, and deontological theory.

[1] Schmitz v. Binette, 857 N.E.2d 846 (Ill. App. 2006).

[1] Id. at 848.

[1] See Schmitz v. Binette, 857 N.E.2d 846, 848 (Ill. App. 2006).

[1] MMK is and abbreviation for, Marshall-Marchetti-Krantz. It is a procedure to surgically restore the bladder to its normal physiological position.

[1] Schmitz v. Binette, 857 N.E.2d 846, 850 (Ill. App. 2006).

[1] At this point the case was on appeal as a result of foregoing testimony by Dr. Mercer. Prior to the appeal, the plaintiffs had filed a motion in limine, requesting permission to ask questions pertaining to Dr. Mercer’s personal practice on cross examination. The plaintiffs argued that the personal practices of Dr. Mercer were relevant, and would allow the jury to question the expert witness credibility and diminish the weight the jury would give to the testimony. However, prior to this case, personal practice testimony were deemed irrelevant to expert testimony. According, to the majority of opinions they did not carry weight. However, the higher court in this case overturned the decision citing precedential case history (See Infra) that, “an expert’s personal practices may well be relevant to that expert’s credibility, particularly when those practices do not entirely conform to the expert’s opinion as to the standard of care.” Schmitz v. Binette, 857 N.E.2d 846, 858 (Ill. App. 2006).

[1] See Schmitz v. Binette, 857 N.E.2d 846, 858 (Ill. App. 2006).

[1] Id. at 850

[1] Gallina v. Watson, 821 N.E.2d 326 (Ill. App. 2004).

[1] Gallina v. Watson, 821 N.E.2d 326, 327 (Ill. App. 2004).

[1] See id. at 327.

[1] See id. at 327.

[1] Id. at 327.

[1] Id. at 331.

[1] Id. at 328.

[1] Id. at 331.

[1] Perforation of the esophagus is a common result of a forceful dilation. (Wichern WA . Perforation of the esophagus. Am J Surg 1970; 119:534-536.)

[1] Esophageal perforation is a true emergency. Prompt diagnosis, in less than 24 hours, is vital to good outcomes. There is a mortality of 10% with early diagnosis and that mortality goes up to 50% with late diagnosis. (Allen Lue, M.D. (2001, May 31). Baylor College of Medicine. Retrieved April 28, 2010, from

[1] Rush v. Hamdy, 627 N.E. 1119, 1121-22 (Ill. App. 1993).

[1] Schatzki’s ring is a narrowing of the lower esophagus (typically due to an abnormal layer of tissue). Those who suffer from the disorder often face difficulty eating passing food and liquids from the mouth to the stomach. The difficulty is often times accompanied by pain and discomfort as the globules descends down the esophagus. In some patients the discomfort leads to phagophobia, in other words the fear of swallowing. Parker C, Power M, Hamdy S, Bowen A, Tyrrell P, Thompson DG (2004). "Awareness of dysphagia by patients following stroke predicts swallowing performance". Dysphagia 19 (1): 28–35. doi:10.1007/s00455-003-0032-8. PMID 14745643

[1] Rush v. Hamdy, 627 N.E. 1119, 1121 (Ill. App. 1993).

[1] Id.

[1] Id.

[1] Standard unit when measuring pressure.

[1] Dr. Hamdy initially recorded that the pressure was at five millimeters mercury, however the facts are unclear as to how many times the records were altered.

[1] Rush v. Hamdy, 627 N.E. 1119, 1121 (Ill. App. 1993).

[1] See Rush v. Hamdy, 627 N.E. 1119, 1122 (Ill. App. 1993).

[1] Rush v. Hamdy, 627 N.E. 1119, 1122 (Ill. App. 1993).

[1] An achalasia dilator is a balloon dilator typically used cases where a patient suffers from, you guessed it, achalasia. Achalasia is disorder of the esophagus, in which the patient has difficulty moving food from the mouth to the stomach.

[1] Rush v. Hamdy, 627 N.E. 1119, 1122 (Ill. App. 1993).

[1] Id.

[1] Id.

[1] A savary dilator is a thin, flexible, and hollow cylinder which is narrow at one end and then expands to a measured thickness. They are guided along a wire to dialate (expand) a target region. Savary dilators are available in multiple sizes and are a common tool when presented with a Schatzki’s ring. Savary dilators have statistically been shown to be more effective and simpler to use as compared to balloon dilators (achalasia dilators).

[1] Id. at 1126.

[1] See Schmitz v. Binette, 857 N.E.2d 846 (Ill. App. 2006) (Ruled that an expert’s personal practices may well be relevant to that expert’s credibility, particularly when those practices do not entirely conform to the expert’s opinion as to the standard of care, and Gallina v. Watson, 821 N.E.2d 326 (Ill. App. 2004) (same), Rush v. Hamdy, 627 N.E. 1119 (Ill. App. 1993) (same), and Smethers v. Campion, 108 P.3d 946 (Ariz. App. 2005) (same), Wallbank v. Rothenberg, 74 P.3d 413 (Colo. App. 2003) (same), and Condra v. Atlanta Orthopaedic Group, 681 S.E.2d 152 (Ga. 2009) (same).

[1] A perspective in which there is definite positive and contra positive.

[1] An ill-defined area of activity that does not readily conform to an existing category or set of rules. (Oxford Dictionary. (n.d.) Ask Oxford. Retrieved April 22, 2010, from

[1] Barry R. Furrow, T.L. (2008). Bioethics: Health Care Law and Ethics, 6th ed., pg. 5, St. Paul: Thomson / West.

[1] Barry R. Furrow, T.L. (2008). Bioethics: Health Care Law and Ethics, 6th ed., pg. 5, St. Paul: Thomson / West.

[1] Manuel Velasquez, C. A. (1996, Winter). Thinking Ethically: A Framework for Moral Decision Making. Retrieved April 22, 2010, from

[1] Id.

[1] Id.

[1] Id.

[1] Id.

[1] Id.

[1] Waller, Bruce N. 2005. Consider Ethics: Theory, Readings, and Contemporary Issues. New York: Pearson Longman: 23

[1] Manuel Velasquez, C. A. (1996, Winter). Thinking Ethically: A Framework for Moral Decision Making. Retrieved April 22, 2010, from

Friday, May 14, 2010

Vacating Traffic Convictions & Driver’s License Reinstatement

If you’ve handled a lot of traffic court matters for clients, then you probably know the Illinois Vehicle Code pretty well. But if not, then here is a quick primer for you. In this article I’ll provide an overview of vacating traffic convictions and driver’s license reinstatements when the underlying basis of the suspension is for failure to appear in court, failure to pay fines or court costs, and/or for convictions on petty traffic offenses.

In general, under the Illinois Vehicle Code 625 ILCS 5/1-100 et. seq., for most petty traffic offenses, an Illinois driver is entitled to two court supervisions within a 12 month period for violations occurring in two separate incidents or occurrences. The 12 month period can be any rolling 12 month period. Multiple court supervisions are available for citations issued at the same time without violating the “two in twelve” rule so long as there are no more than two episodes in the 12 month period. If the driver is pulled over a third time for moving violations within the 12 months, by statute, court supervision is not available. Keep in mind there is a growing list of violations in Illinois for which court supervision is statutorily unavailable. This includes several “serious traffic offenses” listed in the IVC. The sentencing guidelines are found in the Code of Corrections at 730 ILCS 5/5-6-1.

The IVC at 625 ILCS 5/6-205 and 625 ILCS 5/6-206 outlines discretionary and mandatory driver’s license suspensions and revocations. In general, a driver under the age of 21 will get a suspension if they pick up a second conviction within any 24-month period, 625 ILCS 5/6-206(a)(36), and a driver over the age of 21 will be suspended if they get a third conviction within any 12-month period, 625 ILCS 5/6-206(a)(2). The provisions in the code change just about every year because the Illinois General Assembly can’t keep their damn hands off of the IVC. Watch out for changing IVC provisions as well as changing Illinois State Police and Secretary of State agency regulations.

If your client picks up too many moving violations within the given time period, it is inevitable they will face a suspension of their driver’s license. Convictions are routinely handed out in traffic court for defendants who no longer qualify for court supervision. If a defendant fails to appear on their court date, when the violation is a petty traffic offense they will be convicted ex-parte and a judgment of conviction or “JOC” will be entered by the court. The JOC conviction is also referred to in the vernacular as a “failure to appear” or “FTA” conviction. If a defendant is placed on court supervision and fails to pay their fines and court costs, and fails to appear in court for their final return date, then they may have court supervision revoked ex-parte and replaced with a conviction. A defendant in this situation can end up with a “failure to pay” on their driving record. Additionally, for various inexplicable and unpredictable reasons that I don’t quite yet understand, (I don’t know if a rational explanation even exists), the Secretary of State’s Office is routinely handing out convictions to defendants with reasonably clean driving records, who are otherwise eligible for court supervision through mail-in guilty pleas on petty traffic offenses.

The circuit court clerk routinely reports the disposition of its court cases to the Secretary of State’s Office. JOC convictions, FTA convictions, unsatisfactory termination of court cases and unsatisfied judgments are all reported to the Secretary of State and will result in a drivers license suspension in Illinois.

The statutes and courtroom procedures are confusing, but understanding comes best through practice. I am confident that you can master it. Once you master it, you will be able to do a world of good for your clients. Below, I explain how you can navigate this system to benefit your clients.

The typical scenario is that you get a phone call from a prospective client who has received too many convictions on his or her record and just received notice of suspension from the Secretary of State. The prospective client wants you to do whatever necessary so they do not lose their license. You’ve got a window here of about 46 days from the time when notice was sent out by the Secretary of State before your client’s license suspension goes into effect… Here is what you need to do.

The first step will be to located your client’s court cases and miscellaneous traffic tickets. Organize the client’s file geographically by county as well as in chronological order. Its extremely helpful to send your client to the Department of Motor Vehicle and have them obtain a certified copy of their driving history. You can review the certified driving record or “abstract” to determine the underlying reasons for the suspension as well as which which tickets likely led to the suspension. Once you are organized, you can determine which tickets or court cases need to be addressed in order to reinstate your client’s driver’s license.

If the situation is one where the client pleaded guilty in court, had court supervision, but then failed to return court on the return date, and the court supervision was taken away without a hearing, a violation of the client’s right to due process has occurred. The case can be motioned back up into court, the conviction that entered can be vacated, and court supervision can be reinstated.

If the situation is one where an unsatisfied judgment was entered because the client failed to appear for the final return date, was allowed to keep the court supervision, but the Secretary of State entered the Failure to Pay on the client’s driving abstract and used it as grounds for suspension, the Failure to Pay can be fixed easily enough. Payment can be made to the clerk’s office. Once payment is made, you will need to obtain a “failure to pay receipt” from the clerk. Take documentation to the Secretary of State in order to reinstate the driver’s license or prevent the suspension from going in to effect.

If the client chose to plead guilty by sending in the guilty plea through the mail, and was notified unexpectedly that they have been convicted, the mail-in conviction can be vacated by motioning the case up into court. You should be able to get court supervision for your client by going to court if the client was eligible for court supervision in the first place. Don’t make the mistake of going through the effort to motion up your client’s case if they were ineligible for court supervision for whatever reason in the first place…

Also, if the client failed to appear in traffic court and received a Judgment of Conviction, the failure to appear conviction can be vacated by going to court. The client will be sentenced to court supervision if they qualify.

Each of the hypothetical scenarios requiring a court appearance will likely require payment of certain notice or filing fees in your clerk’s office. It is customary to have the client forward these fees to you in advance at the time when they pay you. I advise that attorneys require payment for this type of work upfront. My rule is that the check has to clear before any work on the client’s file is done. This is non-negotiable. It’s for your own protection. Also, advise your clients that they will be paying court costs on any tickets they plead guilty to. These court costs absolutely will exceed the bond amount or “face value” of the ticket. Court costs have gone up astronomically throughout the Chicagoland area in recent years. Don’t let your clients be blindsided by that.

The great advantage to your client if you are successful, is that their driver’s license will be reinstated or you will save them from having the suspension go into effect in the first place… In a career that many practitioners do generally find unsatisfying, this should provide you with at least a little bit of job satisfaction at the end of the day. The other enormous benefit that you can pitch to your clients in situations where you do have to motion up a case in traffic court comes from the ability to negotiate for the best deal possible in your client’s case. If your client is faced with multiple charges, you should actively seek to have companion charges dismissed in exchange for a guilty plea on the remaining charges. In cases where the client pleaded guilty through the mail or was convicted via judgment of conviction ex parte, vacating the conviction and having the opportunity for counsel to negotiate for dismissal of one or more of the charges is absolutely tremendous.

One last thing worth mentioning is that jurisdiction in the circuit court will lapse after a certain period of time has elapsed. If your client’s tickets are too old, you will not be able to vacate their convictions. I believe the rule is two years, but I may be mistaken. (I just don’t have the statutory citation in front of me at the moment.) As a general rule of thumb, anything within a year will be vacated, no questions asked. If its more than a year old, expect the prosecution to object, but go in knowing that your motion will probably be granted by the judge without hesitation. Any requests to vacate convictions that are more than two years old will probably be denied. Just an FYI.

If you are successful, then your reasonable fees and the time and effort that you put into helping your client will be well justified. If your client is smart, then they will keep coming back and referring other prospective clients to you, and you will be justly rewarded for your effort.

As a side note, drivers license reinstatement is a complicated topic that could take a dozen or more blog entries to cover. Here we have only scratched the surface of the most common types of suspensions.

Matthew Kooperman is the founder and sole proprietor of The Law Office of Matthew I. Kooperman, located in Wheaton, Illinois.

Thursday, May 13, 2010

The Modern Use of Distress Warrants

I am always amused by old common law remedies and their modern manifestations in statute law. So many actions at common law made sense at the time of their inception but required updating when being applied to modern contexts. Studying legal history, one can’t help but notice that the common law often favored self-help (taking action without court approval or assistance) remedies. Conversely, modern law tends to disfavor self-help remedies. Yet, in some cases, preserving still relevant and useful ancient remedies means allowing some measure of self-help. One such remedy is the modern use of distress warrants.

Landlord’s rarely take advantage of the novel remedy in the law known as distress warrants. In fact, so many practitioners know very little or nothing about them. Distress warrants are rooted in the common law rights of landlords and codified in many states’ statutes. Essentially, this self-help remedy allows landlords to seize the personal property of tenants in order to secure the payment of delinquent rent. In the past, landlords could re-enter land or leased premises armed with weapons and seize the land and property of delinquent and indebted tenants. Today, those outdated measures have been replaced, but the self-help nature of the action remains intact. In Illinois, a landlord may issue a distress warrant pursuant to 735 ILCS 5/9-301 as long as the statute’s formalities are followed precisely. The Illinois Supreme Court in USA I Lehndorff Vermoegensverwaltung GmbH & Cie v. Cousins Club, Inc. has determined that such actions are constitutional. 64 Ill. 2d 11 (1976). The statute requires that the landlord serve the distress warrant, seize non-exempt property, and then inventory the property. Immediately or soon as is practicable, the landlord is to file the distress warrant and an inventory of the property with the circuit clerk. Schoenfeld v. Kulwinsky 197 Ill. App. 472. The case then continues like any other action in tenancy law with the warrant serving as the complaint. It is important to remember that this warrant is not to be signed by a judge prior to its issuance, nor is its execution supposed to be assisted by any branch of law enforcement. The case law makes clear that this is a purely private self-help remedy. In fact, the majority of the cases on record deal with the issue of non-private parties such as sheriffs involving themselves in the issuance of a distress warrant. One of the quickest ways to have a judge rule against a distress warrant is to get law enforcement involved in the process.

After execution of the warrant, the parties proceed in court to determine if the landlord is entitled to the unpaid rent. If the judge rules in favor of the landlord, the county sheriff then takes the property, sells it, and applies the proceeds to the satisfaction of the landlord’s judgment. There are a few other important formalities that must be followed but this is basically how distress warrants work.

Because so many things can wrong, lawyers are reluctant to pursue this remedy. For instance, a fight could start, the peace could be breached, property could be damaged, or exempt property could be taken. 735 ILCS 5/12-1001 gives a list of exempt property such as personal apparel, bibles, up to $1500 worth of tools of the trade, professional books, etc. Likewise, leased property or property with a superior security interest is not subject to seizure. If exempt property is taken, the landlord could be liable for an amount twice the value of the seized property. Conversely, if the tenant wants his property back, a bond for twice the value of the property must be posted while the judgment is pursued.

Lawyers are also reluctant to issue a distress warrant because this is such an aggressive remedy. Most landlord-tenant relationships do not deteriorate to such an extent. In my recent experience, I was working with an attorney who advised a client to pursue a distress warrant. The tenant owed the landlord a sum of unpaid rent worth six figures and refused to settle and vacate the premises even after the landlord offered to forgive an amount equal to six figures. The landlord also had another interested tenant who was waiting to use the facility. Since the tenant operated expensive equipment as part of his business and since the landlord was unlikely to receive much money even if a judgment was entered in his favor, a distress warrant was pursued.

I was part of this whole process and it was one of the most unusual experiences of my life. My supervising attorney told me “make your self an expert on distress warrants. They aren’t done often and the case law on them is not that extensive.” So, I read every case, statute, and article that I could about distress warrants. I wrote a memo for my supervising attorney detailing my knowledge of distress warrants and then we prepared the documents. Next, our client was told to assemble a crew and be ready to go in on a particular evening. So, on that particular night we pulled up to the leased premises about an hour before the tenant’s store closed. We met in another store’s parking lot and my supervisor briefed the crew on what they could and could not do.

Without revealing too much detail about our clients, I can say that this crew was quite the cast of characters. I had been fearful beforehand that violence might break out but when I met these workers, I knew that nobody was going to cause us a problem. The real challenge now was to make sure our crew didn’t get too excited or overly zealous. We certainly did not want any damaged or exempt property taken.

I might also add that I was not lacking in sympathy for the tenants. It brought us no joy to put these people out of business, but they had been very rude and left us with few options for negotiation. Our landlord was a very patient and forgiving individual but he had already taken many losses of his own during the recession. Furthermore, he had been very flexible and willing to forgive six figures worth of unpaid rent in exchange for vacating the premise. Unfortunately, the tenants just didn’t show any willingness to work out a solution.

So, just before the tenants store closed, our client went in, issued the warrant, announced that the property was being seized, and instructed his worker’s to begin seizing all the property and equipment subject to the warrant. I still cannot believe how quickly these guys moved. In just 30-45 minutes, they managed to clean the place out. During this time, I was examining the property to ensure that nothing fell under the exempt category. Indeed, almost everything that was seized was non-exempt and valuable for resale. As was expected, the owner called his lawyer who instructed him to call the police. The police arrived and my supervising attorney went out to meet them with a copy of the warrant and statute. The police were clearly baffled and had not seen this procedure done before. Nevertheless, after reading a copy of the statute, they realized we had the right to be there. They did, however, explain that if we continued to seize property after they were called to the scene, that our actions would then constitute a breach of the peace. Breaching the peace was another concern of ours and we had agreed beforehand that if law enforcement showed up, we would probably have to stop regardless of what the law said. Indeed, the right of a landlord to seize property must be exercised in a way that does not breach the peace. The law is very expansive about what constitutes a breach of peace. However, by that time, the workers had seized most of the non-exempt property. The police allowed us to keep the property we already seized and then asked us to leave the scene.

As of now, the matter is before the court. We will soon find out whether the property is to be sold. As for my thoughts on the matter, I would not recommend this procedure. In fact, I am surprised it is still allowed with the law’s tendency to frown on self-help. As much as I value self-help, too much can go wrong with a distress warrant. I suspect our warrant went smoother than most others due to an excellent crew and flawless execution. And, I must admit that I found this whole process kind of exciting. However, I would recommend sticking to safer remedies such as those offered in the forcible entry and detainer statute. Also, I did feel kind of sorry for the tenants even though they provoked the aggressive action. In reality, once the forcible entry and detainer action made its way through court, the tenants would have been removed from the premise and put out of business anyway. By issuing a distress warrant, our landlord at least might get a secured guarantee of some payment with the property. But, the whole situation had to be disconcerting and demoralizing for the tenants. And for that, I genuinely feel sorry. Still, I am happy that I got to be part of this action on this one occasion.