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.
Monday, May 31, 2010
Improving Cash Flow
Thursday, May 20, 2010
Senior Paralegal Wanted
Tuesday, May 18, 2010
Toronto woman sues phone company for revealing her 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.
 1794 Conn. App. LEXIS 20; 2 Root 90, February, 1794, Decided
 Id at 2.
 William L. Foster, Expert Testimony: Prevalent Complaints and Proposed Remedies, 11 HARV. L. REV. 169, 169 (1897).
 Rule 702. Testimony by Experts http://www.law.cornell.edu/rules/fre/rules.htm
 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
 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)
 [T]he degree of care that a reasonable person should exercise. Black's Law Dictionary (8th ed. 2004), standard of care
 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.
 Schmitz v. Binette, 857 N.E.2d 846 (Ill. App. 2006).
 Id. at 848.
 See Schmitz v. Binette, 857 N.E.2d 846, 848 (Ill. App. 2006).
 MMK is and abbreviation for, Marshall-Marchetti-Krantz. It is a procedure to surgically restore the bladder to its normal physiological position.
 Schmitz v. Binette, 857 N.E.2d 846, 850 (Ill. App. 2006).
 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).
 See Schmitz v. Binette, 857 N.E.2d 846, 858 (Ill. App. 2006).
 Id. at 850
 Gallina v. Watson, 821 N.E.2d 326 (Ill. App. 2004).
 Gallina v. Watson, 821 N.E.2d 326, 327 (Ill. App. 2004).
 See id. at 327.
 See id. at 327.
 Id. at 327.
 Id. at 331.
 Id. at 328.
 Id. at 331.
 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.)
 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 http://www.bcm.edu/oto/grand/05_31_01.htm)
 Rush v. Hamdy, 627 N.E. 1119, 1121-22 (Ill. App. 1993).
 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
 Rush v. Hamdy, 627 N.E. 1119, 1121 (Ill. App. 1993).
 Standard unit when measuring pressure.
 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.
 Rush v. Hamdy, 627 N.E. 1119, 1121 (Ill. App. 1993).
 See Rush v. Hamdy, 627 N.E. 1119, 1122 (Ill. App. 1993).
 Rush v. Hamdy, 627 N.E. 1119, 1122 (Ill. App. 1993).
 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.
 Rush v. Hamdy, 627 N.E. 1119, 1122 (Ill. App. 1993).
 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).
 Id. at 1126.
 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).
 A perspective in which there is definite positive and contra positive.
 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 http://www.askoxford.com/concise_oed/greyarea?view=uk
 Barry R. Furrow, T.L. (2008). Bioethics: Health Care Law and Ethics, 6th ed., pg. 5, St. Paul: Thomson / West.
 Barry R. Furrow, T.L. (2008). Bioethics: Health Care Law and Ethics, 6th ed., pg. 5, St. Paul: Thomson / West.
 Manuel Velasquez, C. A. (1996, Winter). Thinking Ethically: A Framework for Moral Decision Making. Retrieved April 22, 2010, from http://www.scu.edu/ethics/practicing/decision/thinking.html
 Waller, Bruce N. 2005. Consider Ethics: Theory, Readings, and Contemporary Issues. New York: Pearson Longman: 23 Manuel Velasquez, C. A. (1996, Winter). Thinking Ethically: A Framework for Moral Decision Making. Retrieved April 22, 2010, from http://www.scu.edu/ethics/practicing/decision/thinking.html
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
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.