Monday, December 26, 2011
Wednesday, December 21, 2011
If a picture speaks a thousand words then Judge Posner certainly makes his point clear in a recently published opinion. Published November 23, 2011, the opinion consolidates appeals in two product liability cases for grants of forum non conveniens in multidistrict litigation. In the first sentence, he begins by indicating the court’s concerns about appellate advocacy in the two cases.
The appellant’s attorney (a practitioner from Houston, TX) was criticized for ignoring precedent and it was done quite creatively. Posner wrote, “The ostrich is a noble animal, but not a proper model for an appellate advocate”. He then includes a picture of an ostrich with its head in the sand followed by another one of a man in a suit (presumably a lawyer) with his head in the sand. The lesson (other than that ostriches don't really bury their heads in the sand)? It is right there in the opinion: “When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it.”
Read the whole opinion here
Wednesday, December 14, 2011
Friday, December 9, 2011
Does a seller have a duty to disclose that someone has died in a car or house that he is trying to sell?
Wednesday, December 7, 2011
Reliable Fire Equipment Company sued two of its salesmen for violating employment agreements which included covenants not to compete. The salesmen had started their own company which provided services to some of Reliable’s customers. The circuit court found the covenants unenforceable and the appellate court agreed. Reliable appealed.
The Supreme Court begins its analysis by explaining that an employment contract that totally restrains trade is void because it “deprives the public of the industry of the promisor, and deprives the promisor of the opportunity to pursue an occupation and thereby support his or her family” but that a covenant not to compete “will be upheld if it contains a reasonable restraint and the agreement is supported by consideration.”
Recognizing that Illinois courts have failed to consistently apply a three-prong analysis that the Court traces back to 1896, the Court explains that a restraint is reasonable if it 1) is no greater than is required to protect a legitimate business interest of the employer, 2) does not impose undue hardship on the employee, and 3) does not injure the public.
Because lower courts have had the most trouble with the first prong - whether the employer has a legitimate business interest needing protection - the Court examines the many factors on which jurists have relied before holding that such factors are “only nonconclusive aids in determining the promisee’s legitimate business interest” and that the proper test is to consider “the totality of the facts and circumstances of the individual case.” The Court then identifies several important factors to consider including “the near-permanence of the customer relationships, the employee’s acquisition of confidential information through his employment, and time and place restrictions” and explains that no factor is determinative; its importance depends on the facts and circumstances in a given case.
Because the case “was tried under an incorrect theory of law” the Court reversed the judgment and remanded the case for a new trial.
Reliable Fire Equipment Company vs. Arnold Arredondo, 2011 IL 111871
Submitted by Brian D. Moore, Class of ’92.
Wednesday, November 23, 2011
If so, you better sit down. You may be entitled to damages totaling dozens of dollars. To claim your riches, you must submit a claim on or before May 23, 2012.
Details here: www.propanesettlement.com
Friday, November 18, 2011
I wish I could find if he has a cap on his NBA fees, or if he's charging a flat fee. But as well as he is doing, he's still not making Kobe money.
Wednesday, November 16, 2011
Tuesday, November 15, 2011
Monday, November 14, 2011
The comment to the rule explains that it was adopted pursuant to section 40 of the Identify Protection Act (5 ILCS 179/40) which required the Supreme Court to adopt rules to regulate disclosure of social security numbers. The Identity Protection Act was effective June 10, 2010.
Submitted by Brian D. Moore, Class of ‘92
Tuesday, November 8, 2011
Testamentary Capacity: Judge Dudgeon began by reminding attendees of the three requirements for testamentary capacity as found in Estate of Wrigley, 104 Ill App 3rd 1008 (1st Dist., 1982): that the testator have sufficient mental ability to i) know and remember the natural objects of her bounty, ii) comprehend the kind and character of her property, and iii) make disposition of her property according to some plan formed in her mind.
To confirm that these three requirements are met Judge Dudgeon recommended:
• interviewing the testator without family members or friends in the room
• bringing in another attorney to help assess the testator’s mental ability
• developing a list of questions aimed at each of the three requirements
• asking the questions out of any order and repeating some questions
• having a conversation that reveals how aware the testator is of the world around her
• asking what medications the testator takes, why, and when she started taking each
• taking detailed notes that include testator’s answers, appearance, and behavior
Judge Dudgeon then pointed out some warning signs that should cause you to take a closer look at the testator’s capacity:
• family member or third party makes the appointment
• family member or third party wants to sit in on appointment
• testator’s attention wanders
• testator wants big changes to an existing plan
• testator uses charm and/or story-telling to hide her inability to answer
Judge Dudgeon recommended taking confirmation a step further if you have any doubts by getting a medical release from the testator and talking to her doctor(s), and/or having the testator professionally evaluated.
Undue Influence: Judge Dudgeon recommended referring to the relevant Illinois Pattern Jury Instructions on this topic (IPI 200.00 et seq.) The IPI defines undue influence as “influence exerted at any time upon the decedent which causes him [her] to make a disposition of his [her] property that is not his [her] free and voluntary act.” (IPI200.09)
Undue Influence can arise from
• A specific act or conduct evidencing undue influence, or
• The existence of a fiduciary relationship between the testator and her beneficiary where i) the testator reposed trust and confidence in the beneficiary, ii) the beneficiary prepared the relevant document or caused it to be prepared, and iii) the beneficiary gets a benefit from the document greater than others with an equal claim. (see also IPI 200.04)
Judge Dudgeon then pointed out some signs that should cause you to take a closer look at the influence issue:
• Did a family member or third party make the appointment?
• Does this person want to sit in on appointment?
• Does this person hold a POA and/or pay the testator’s bills for her?
• Does this person make the medical decisions for the testator?
• Does this person or his family/children substantially benefit from the new document?
Executing the Will: Judge Dudgeon recommended that when it is time to execute the will you remember what it is the witnesses are witnessing and attesting to: that “1) he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will...” 755 ILCS 5/6-4(a).
Judge Dudgeon recommended explaining these requirements to each witness and asking them to make notes describing why each thought the testator was “of sound mind and memory” and that they saw her sign the document. To give the witnesses information to make their determination Judge Dudgeon recommended having a conversation with the testator in front of the witnesses.
Finally, Judge Dudgeon recommended dictating notes to your file explaining what you did to assure the testator had the requisite capacity and was not subject to undue influence, and which contain forwarding addresses and contact information for the witnesses.
Submitted by Brian D. Moore
Friday, November 4, 2011
Wednesday, November 2, 2011
Tuesday, November 1, 2011
On Saturday, November 12, 2011 - Judges are needed from 8:00 a.m. - 12:30 p.m. and 1:30 p.m. - 6:00 p.m.
On Sunday, November 13, 2011 - Judges are needed from 8:00 a.m. - 12:30 p.m. and 1:30 p.m. - 5:00 p.m.
Volunteers may sign up for full day shifts or half day shifts on one or both days. Refreshments will be provided to our volunteer judges throughout the tournament, including lunch on Saturday and Sunday and dinner on Saturday.
No experience in judging a mock trial tournament is necessary. Students will be trying a criminal murder problem supplied by the American Mock Trial Association, and will be judged on their ability to present the facts of their case through opening statements, direct and cross examination of witnesses, arguing objections and closing arguments. General courtroom decorum and presentation will also be scored. Training will be provided to tournament judges on the morning of the competition. This is a great way to volunteer and provide feedback to undergraduate students seeking a career in law.
The ECC Mock Trial Team earned national acclaim two years ago for defeating the Yale University Mock Trial Team in a competition sponsored by Harvard University. It is one of the only community colleges to compete against 4-year universities across the country.
Please consider volunteering for this exciting event.
For more information please contact the ECC Mock Trial Team at
847.214.7466 or firstname.lastname@example.org.
Thank you in advance for your consideration!
Thursday, October 27, 2011
Illinois College Expenses: Child who is Third-Party Beneficiary of Marital Settlement Agreement can Sue for Breach of Contract
The Spircoffs entered a Marital Settlement Agreement (MSA) on January 28, 1988 in which the parties agreed that each “shall contribute” to their child’s college expenses. The MSA became part of the divorce judgment. In 2009, after he finished his college education, the Spircoffs’ son filed a breach of contract action as a third party beneficiary of the MSA. The court agreed that the son was a third party beneficiary and had standing to enforce the MSA.
The court then distinguished the Spircoff situation from Petersen because in Spircoff i) the issue of college expenses was not expressly reserved, and ii) “the obligations of the parties for educational expenses was clearly and affirmatively stated” in the MSA. The lack of an expense allocation or allocation methodology in the MSA – for example, by dollar amount or percentage – did not bother the court. It reasoned that because college expenses are in the nature of child support they are always modifiable and the trial court retained jurisdiction to “make specific allocations” to resolve any dispute that later developed between the parties.
The court also said Petersen was “inapplicable” because Spircoff was not an action to modify a support obligation: it was a breach of contract action by a third party beneficiary.
See IRMO Spircoff, 2011 IL App (1st) 1103189
Brian D. Moore
Tuesday, October 25, 2011
Wednesday, October 19, 2011
The Illinois Supreme Court has ruled that college expenses are a form of child support and a petition to allocate them is a modification request subject to Section 510 of the Illinois Marriage and Dissolution of Marriage Act.
Janet and Kevin Petersen had three sons, then divorced. The divorce decree reserved the issue of college expenses. Eight years later Janet filed a Petition to Allocate College Expenses. At that time the oldest boy had finished college, the middle boy was in college, and the youngest was still in high school. The trial court allocated 75% of all college expenses to Kevin, including expenses incurred before Janet filed her Petition. Kevin appealed.
The Supreme Court held that college expenses are a form of child support and are subject to the section addressing modification. Reserving the issue in the divorce decree made no difference because the word modify plainly includes any post-decree change to the parties’ obligations. Because the original decree did not require either parent to pay college expenses the Petition “sought to change the status quo” which made it a request to modify child support.
Because the Petition was a request to modify support, and by rule such requests were not retroactive, Kevin could not be required to pay amounts incurred before the Petition was filed.
BUT the Court’s instructions on remand said that when determining how to allocate the college expenses, the trial court needed to analyze each parent’s financial resources including “the fact that Janet’s financial resources may have been depleted” by paying for the earlier college expenses.
Brian D. Moore
Tuesday, October 18, 2011
Monday, September 19, 2011
Lastly, always remember that it is generally advisable to speak to a lawyer about your specific situation. Mechanics liens are very technical and even a minor mistake can defeat the whole process.
Wednesday, September 14, 2011
Tuesday, September 13, 2011
Thursday, September 8, 2011
Tuesday, September 6, 2011
- Whether the debtor misrepresented facts in his petition or plan, unfairly manipulated the Bankruptcy Code, or otherwise filed his Chapter 13 petition or plan in an inequitable manner;
- The debtor’s history of filings and dismissals;
- Whether the debtor only intended to defeat state court litigation; and
- Whether egregious behavior is present.
Thursday, September 1, 2011
Sunday, August 28, 2011
Tuesday, August 23, 2011
Friday, August 19, 2011
Thursday, August 18, 2011
Wednesday, August 17, 2011
223 Intoxicating Liquors
223II Constitutionality of Acts and Ordinances
223k15 k. Licensing and Regulation.
A state statute forbidding the employment of women in any saloon, beer hall, barroom, theater, or other place of amusement where intoxicating liquors are sold as a beverage is a valid exercise of the police power of the state. In re Considine, 83 F. 157 (C.C.D. Wash. 1897)
Tuesday, August 16, 2011
The Act prohibits several dozen different abusive or deceptive tactics. They are common sense prohibitions that I don't have time to get into. Basically don't lie, don't harrass people, don't threaten something that you can't legally follow through on, and don't communicate details of the debt to third parties. But you should still read the statute because there's a lot of other things that you probably would not have considered.
The more interesting aspects are what the Act requires you to do, not what it prohibits you from doing. There are several requirements for debt collectors pursuing consumer debts, but I am just going to focus on the very first thing. Within five days of the initial communication with a debtor, whether it be by phone, in writing, in person, or through a judicial pleading, you must send a written notice to the debtor containing the following information:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
Thorough practitioners should have a form letter containing these warnings that will be the initial communication to the debtor. I have a form letter that I am willing to share. Let me know if you want a copy. Although the warnings can be given up to 5 days after the initial communication, it is advisable to make this letter the first communication. That way you don't run in to timing problems and the debtor can't "misremember" or misconstrue the contents of a telephone conversation as a threat.
I have linked to the entire statute HERE in a pdf. It is worth printing out and glancing at occasionally. It is about 20 pages, but the sections are concise and easy to follow. Like I said earlier, it applies to any consumer debt and the consequences for violation are severe.
Wednesday, August 10, 2011
Here is the link: http://18.104.22.168/pa/cms/SearchPrompt.php
I just heard about this new feature, and have only done limited searching. The website will give you only basic info, such as the next court date, etc. But you still don't have access to the pleadings or past court orders.