Wednesday, June 30, 2010

Class Action Lawsuit Over iPhone 4?

I'm sure most of the technophiles out there have heard about the iPhone 4's poor reception and dropped call problems. Maybe some of you have even experienced it for yourself. If you have, you might want to consider contacting the law firm of Kershaw, Cutter, and Ratinoff, LLP. They are investigating a potential class action lawsuit against Apple for the poor reception quality, dropped calls, and weak signal received by the new iPhone 4. More information here.

Friday, June 25, 2010

What Happens If Appellee Does Not File An Opposition Brief?

Steven R. Merican publishes the Illinois Appellate Lawyer Blog. He recently wrote an interesting blog about the appellate court's options when the appellee does not file a response brief.

There will not be an automatic default against the party who failed to respond. It is possible to lose an appeal even though your opponent did not file a response brief. See the full post here.

Saturday, June 19, 2010

The Presumptions of Gift vs. Loan

Brad Barnes sued Rose Michalski to enforce the repayment of an alleged loan. Plaintiff's complaint alleged that he lent defendant $27,000 and that she had not repaid the money. Defendant's answer alleged that the money was a gift.

There was considerable testimony at trial concerning the relationship of the parties. Both plaintiff and defendant were swingers. They were both married to other people and the four of them routinely met at their houses, hotels, or certain campgrounds to practice their self-described lifestyle of "swinging."

The appellate opinion spent considerable time examining the presumptions that should have arisen at trial. The court found the law presumes a gift if someone transfers property to his or her spouse or family member. The burden would then shift to the transferor to prove that it was a loan and not a gift.

However, there is no presumption of a gift to a friend, even a close friend. Their apparently is also no presumption of a gift to a swinging colleague. In this case because the parties were not related, the presumption was of a loan. The burden then shifted to the defendant to prove it was a gift. The only evidence offered in support of the gift theory were defendant's own self-serving statements.

Also as there was no written contract, nor was there ever any discussion of the repayment terms when the money was exchanged, defendant argued that plaintiff could not meet its burden in proving that it was a loan.

The court found that the common law does not require plaintiff to prove the "terms of repayment" to obtain a judgment for repayment of a loan. Pursuant to the Restatement of Contracts, if a loan omits the terms of repayment, the court can supply the terms.

Friday, June 11, 2010

14th Hole Alumni Golf Outing

Law Blog Contributors Network in Naperville

Northern Law Blog contributors Mike Huseman, Brian Krause, and Matt Kooperman (far right) network at a DuPage County Bar Association event on Thursday evening on the rooftop patio of the Two Nine Bar in Naperville. Also pictured is Adam Wirtz from the Wirtz Law Offices, LLC (second from right).

Thursday, June 10, 2010

Now that is a coincidence.

According to this article from the Washington Post, a Maryland man recently crashed into and injured a retired judge who had spared him jail time in a separate DUI case eleven years earlier.

Monday, June 7, 2010

Foreclosure Mediation in Will County

I just received a press release from the Illinois Supreme Court which outlines Will County's new mandatory mediation program for foreclosure cases. (I am having trouble linking to the press release, but a copy can be found on the Suprem Court's website. A summary of the new local rules is also included below.)

I don't even know where to start. I'll probably post a follow-up this week with my thoughts on the matter. This is for informational purposes only. Oh, and by the way, the plaintiffs have to pay for it... filing fees have increased from $276 to $426.

A Summary of the New Will County Local Rules:

1. Any complaint filed for residential foreclosure would be automatically scheduled for a mandatory pre-mediation conference within 60 days.

2. Along with the summons, defendant borrowers will be given a form explaining the mandatory mediation program. The form will state that the case will be evaluated by an outside mediator for possible loan modification or other resolution. It will also state that if modification is not deemed feasible or if the borrower does not want to save the home, then mediation may still be used to assist the parties in discussing a consent foreclosure in which the lender will waive any deficiency against the borrowers.

3. The form also will advise the borrower to bring certain financial information, and will contain a list of local counseling agencies available to assist borrowers in foreclosure. All financial information will be held in confidence by the mediator and not disclosed to any other party without the consent of the borrower.

4. An independent mediator will determine at the pre-mediation hearing whether the
borrower meets initial criteria of having greater monthly income than expenses in order to qualify for a loan workout or modification. If the borrower does not meet the criteria or does not wish to keep the house, the mediator may seek to determine whether the borrower can deed the property to the lender or consent to a judgment waiving any deficiency judgment against the borrower.

5. If the borrower meets initial criteria for a loan modification or wishes to surrender the property in a consent foreclosure or other arrangement, the mediator will scheduled a mediation conference within 30 days.

6. At the mediation conference, a representative of the lender must appear in person with full settlement authority and participate in good faith in the mediation process. Failure to attend or to participate in good faith will result in sanctions by the court, including possible dismissal of the action. If the borrower fails to appear without excuse, the mediation will be terminated and the matter will be referred back to the trial court.

7. Any agreement will be reduced to writing and signed by the parties and their counsel. The Circuit Court may retain jurisdiction of the case for a trial period. If the borrower fails to successfully modify the loan, or if no agreement is reached, the foreclosure will resume in the Circuit Court.

Saturday, June 5, 2010


Should Fox (and others) fork over $7 Million for an inaccurate news story involving former Cook County judge Jim Ryan?

Here's Fox's follow-up video:

Here's the story:


Fri Jun 04, 2010 @ 10:11AM PST
By Eriq Gardner
FoxnewslargeAn Illinois judge is suing Fox Television after a local Chicago affiliate took aim at the lazy work habits of some of the state's judges.
The collaborative investigation by Fox Chicago News and the Better Government Association led to the reassignment of four judges, including James Ryan, a Circuit Court Judge in Cook County.
But now, in a defamation complaint filed on Wednesday against Fox, the Better Government Association, and various individuals who worked on the broadcast investigation, Judge Ryan says that Fox made a big error in its May 24th report.
The report claimed that the judge left work early and went home while still on the clock. To show this, the station showed his alleged vehicle in the driveway of his alleged home.
One problem.

It wasn't his vehicle nor his home. The judge says he wasn't even at his real home.
Immediately afterwards, the judge called the news desk at Fox and advised them of the error. According to the complaint, Fox News co-anchor Robin Robinson apologized for the error and said it was "our bad."
The judge now wants $7 million as a result of the defendants' allegedly intentional, willful and malicious conduct. 
We couldn't find the original story on Fox' website, but we found this follow-up report earlier this week looking at the scandal that lead to the reassignment of judges. No mention is made of the purported screw-up. (We've reached out to members at the station and will update if we hear anything.)

Friday, June 4, 2010

Ohio Supreme Court Authorizes Guesstimation.

The Ohio Supreme Court endorsed a long standing police practice of guessing/making things up on Wednesday when it ruled that the trained eyeballs of police officers are enough to hand out speeding tickets. Scientific proof of a driver's speed is not necessary.

Apparently, it is a common practice in that state for officers to issue tickets based on "visual estimation" of one's speed. That practice has now been endorsed by the Ohio Supreme Court.

The 5-1 ruling comes in a case involving a motorist who was given a speeding ticket by a police officer in Copley, Ohio. The officer said his radar had clocked the motorist traveling 82 mph in a 60-mph zone.

He also said that with his 13 years experience as a traffic cop and certification in speed estimation by the Ohio Peace Officer Training Academy, even without the radar, he visually guessed the motorist's speed was at least 79 mph.

A lower court threw out the radar evidence because the officer was unable to produce the required certification for his training on the device. But the court ruled that the officer had the background and training to make an educated guess of the motorist's speed and found the him guilty.

In its ruling upholding that conviction, the Ohio Supreme Court said "a police officer's unaided visual estimation of a vehicle's speed is sufficient evidence to support a conviction for speeding ... if the officer is properly trained."

In this case, the court ruled, the office was properly trained and certified to eyeball speeding motorists. The court added in its ruling that a radar gun "is not necessary to support a conviction for speeding."

I question the margin of error that should be assigned to these police officers' bionic eyeballs. I suppose that if the speed limit was 30 m.p.h., and a police officer guestimated that I was travelling 75 m.p.h., that might be enough to get a conviction. But how can the state prove guilt beyond a reasonable doubt if all they have is a guess that I was going 10-15 m.p.h. over the limit?

Thursday, June 3, 2010

NIU Grad Gets High Profile Case

According to the Joliet Herald, Stephen Whitmore (NIU-COL '03) was appointed to represent Scott Wayne Eby, who is accused of murdering Riley Fox.