Misnomer? Or Mistaken Identity? Which is which and does it matter?

In my relatively short time in private practice I have already encountered a surprising number of complaints that get the defendant(s) name wrong.  Sometimes the plaintiff is obviously unsure who to sue and over does it, listing a slew of (possibly) related entities and individuals in hopes of hitting the right one.  Sometimes a shorter list of defendants is used but the complaint confuses who participated in the transaction/event and how.  Sometimes the plaintiff just plain gets the defendant wrong. 

The impact of these mistakes depends on whether the error is a Misnomer or Mistaken Identity.  A misnomer is fixed “at any time, before or after judgment, on motion, upon any terms and proof that the court requires.”  (735 ILCS 5/2-401(b)).  Mistaken identity makes any judgment entered void ab initio.

A recent Fifth District opinion addresses the difference between the two and the impact of the error.  American Express sued “Ron Kosydor and HighRPMracer, Inc.” for $150k in credit card debt.  Summons was issued and finally served on “Ron Kosydor” and a default judgment was entered against “Ron Kosydor.”  But two people – father and son – named Ron Kosydor live on the same street in Alto Pass, Illinois.  The Son was served with the lawsuit and was the registered agent of the corporation.  But in post-judgment collection proceedings citation documents were sent to the Father and these documents identified the last four digits of a SS# that apparently belonged to the Father.   

The Son sued AmEx and its law firm for collecting a debt from him that was not his.  AmEx argued that res judicata barred the lawsuit: there was a final judgment in the prior collection lawsuit which was between the same parties and involved the same transaction.  In deciding that res judicata barred the lawsuit against AmEx, the court analyzed the difference between a misnomer and mistaken identity.    

Relying on Capital One Bank, N.A. Vs Czekal, 379 Ill App 3d 737 (2008) the Kosydor court explained that the misnomer statute only applies when the party is correctly joined and served but merely called by the wrong name and in such cases the court had jurisdiction over the party and the judgment is good.  But with mistaken identity the wrong person is joined and served and the court has not acquired personal jurisdiction over this person

To determine whether the error is a simple misnomer or a case of the judgment-killing mistaken identity the question is the plaintiff’s intent: who did the plaintiff intend to sue?  And the best evidence of this subjective intent is any objective manifestations of the plaintiff’s intent when the lawsuit was filed.

The Kosydor court found objective evidence that AmEx intended to sue the Son: his name and address were on the summons, the AmEx account was connected to this address, no evidence existed of the Father’s involvement with the account or the corporation.  The confusion which brought the Father into the post-judgment proceedings was not persuasive.  Because the error was a mere misnomer, this meant Son - the plaintiff - had been a party to the underlying lawsuit and res judicata applied to the Son’s lawsuit against AmEx.

Compare this to the Capital One case where the court found both a misnomer and mistaken identity: naming the defendant as a DBA, “Joseph Czekala DBA Sealand Foods,” when its contract was with a corporation, Sealand Foods, Inc., was a misnomer; linking Czekala to the account was a mistake because the objective evidence showed the relevant documents were signed by Czekala as the corporation’s president.  Because it was a case of mistaken identity, the judgment Capital One had obtained against Czekala was void ab initio.  

Kosydor v American Express Centurion Services Corporation, American Express Bank F.S.B, and Baker, Miller, Markoff & Krasny, LLC, 2012 Ill App 5^th 120110.

Submitted by Brian D. Moore, Class of ’92.

brian@moorelawpc.com

www.moorelawpc.com

The Grundy County State's Attorney's Office is Hiring

Job Openings

The Grundy County State's Attorney's Office is seeking the following and asks that those interested, to ensure full consideration, please send a cover letter, resume, and references to:
Jason Helland
Grundy County State's Attorney's Office
111 East Washington Street
Morris, IL  60450
FAX:  815-942-0142
Email:  jhelland@grundyco.org  

First Assistant

An experienced criminal prosecutor for the position of First Assistant State's Attorney.  The starting salary for this position is $80,000.  Although candidates are judged individually, the following criteria are given consideration for interviewing and hiring:  academic standing-top 50% of the class, documented interest in public service and/or criminal law, highest standards of professional and personal integrity, a minimum of 10 years of prosecution experience including the prosecution of Class X, Class 1, and Class 2 felonies, and must be licensed in the State of Illinois at the time of their application. We offer full benefits including health, dental, and optical insurance as well as a pension plan.

Civil Division
An experienced attorney for a position in the civil division.  The starting salary for this position is $60,000.  Although candidates are judged individually, the following criteria are given consideration for interviewing and hiring:  academic standing-top 50% of the class, documented interest in public service and/or civil law, highest standards of professional and personal integrity, a minimum of 5 years of civil experience, and must be licensed in the State of Illinois at the time of their application.   The Civil Division is charged with the legal representation of the County of Grundy and represents and advises the county and elected officials of the county in civil litigation arising out of their official duties.  The State's Attorney is also responsible for enforcement of county ordinances and provides county officials with legal advice in matters ranging from contracts to county policy.  We offer full benefits including health, dental, and optical insurance as well as a pension plan.

Supreme Court Rule 711 Intern
A Supreme Court Rule 711 intern for the Spring 2013 semester.   The starting salary for this position is $10 per hour.  Although candidates are judged individually, the following criteria are given consideration for interviewing and hiring:  academic standing-top 50% of the class, documented interest in public service, and the highest standards of professional and personal integrity.    

Third-year law students are strongly encouraged to apply for 711 certification pursuant to Supreme Court Rule 711 at the time of the application.  With 711 certification, third-year law students receive hands-on experience such as plea negotiations and the trying of traffic and misdemeanor cases.  This is an opportunity many law students look forward to experiencing. 

Drew Peterson's Memorandum in Support of his Motion Concerning Conflict of Interest and Ineffective Assistance of Counsel

DREW PETERSON: memo filed December 13, 2012

(h/t @facsmiley)

Specialty Consumer Reporting Agencies

Many consumers know that they are entitled to a free copy of their credit report each year from the three major credit bureaus (AnnualCreditReport.com).  But not too many people know that they are also entitled to free, annual copies of reports issued by other specialty consumer reporting agencies as well.

For instance, there are specialty consumer reporting agencies that track your history of insurance claims, your history of bounced checks, your history of paying your rent on time, your history of payments to the utility companies, etc.  You may want to check those lists to make sure that they contain accurate information.  A mistake on any of these lists could negatively impact your credit.

The Consumer Financial Protection Bureau has developed a list of certain specialty consumer reporting agencies.  The list is HERE. The list contains the descriptions and contact information for dozens of reporting agencies, as well as instructions for obtaining your reports from each of them.  Many will provide you a free report once per year.  If the agencies do not provide free copies, they are required by federal law to charge you a "reasonable rate" (currently $11.50 maximum) for your report.

If your credit score is lower than you think it should be, or if you were recently denied credit, you might want to check several of these reports to see if they contain any misinformation. Most reports will then contain instructions for challenging any incorrect information.  

Unused Gift Cards

With the holidays right around the corner, I thought I would update you on the law surrounding the expiration of gift cards.  The topic was in the news recently because U.S. Sen. Richard Blumenthal has introduced a bill to congress that would prohibit expiration dates and non-activity fees on gift cards (press release HERE).  The bill would also require companies in bankruptcy to honor outstanding gift cards.  I don't have any other information on this bill, or the likelihood of its passage, so if anyone else has any information you can let us know in a comment.

I do know, however, that the Illinois Consumer Fraud and Deceptive Practices Act has offered strong protections in this state for several years.  The Act prohibits gift certificates, gift cards, or credit slips obtained from the return of merchandise from expiring any sooner than 5 years from their issuance.  The Act also bars any non-activity charges whatsoever.  815 ILCS 505/2SS. 

Five years is a long time to have a gift card sitting around, but the federal law will ban any expiration dates at all.  I think five years is plenty.  I'm just thinking from the business' perspective.  There has to be a point in time when the business can write-off the amount of the unused gift card and credit that money back onto their books.  What do you guys think?

Rene Cruz becomes Judge in Kane County

Aurora attorney and NIU Law alum Rene Cruz has been named a Judge in Kane County. HERE is a link to an article in the Aurora Beacon and HERE is a link to the Illinois Supreme Court's press release.  

Writs of Attachment (Body Writs)

Illinois enacted a new body attachment statute last summer. Until then, it was my understanding that a rule to show cause had to be personally served upon the defendant before a body writ would issue.

This new statute, which I have copied and pasted below, seems to say that rules to show cause can now be served by personal or abode service.  Has anyone entered a body writ following abode service of a rule?  If so, in which county??


 (735 ILCS 5/12-107.5) 
    Sec. 12-107.5. Body attachment order.
    (a) No order of body attachment or other civil order for the incarceration or detention of a natural person respondent to answer for a charge of indirect civil contempt shall issue unless the respondent has first had an opportunity, after personal service or abode service of notice as provided in Supreme Court Rule 105, to appear in court to show cause why the respondent should not be held in contempt.
    (b) The notice shall be an order to show cause.
    (c) Any order issued pursuant to subsection (a) shall expire one year after the date of issue.
    (d) The first order issued pursuant to subsection (a) and directed to a respondent may be in the nature of a recognizance bond in the sum of no more than $1,000. 
    (e) Upon discharge of any bond secured by the posting of funds, the funds shall be returned to the respondent or other party posting the bond, less applicable fees, unless the court after inquiry determines that: (1) the judgment debtor willfully has refused to comply with a payment order entered in accordance with Section 2-1402 or an otherwise validly entered order; (2) the bond money belongs to the debtor as opposed to a third party; and (3) that any part of the funds constitute non-exempt funds of the judgment debtor, in which case the court may cause the non-exempt portion of the funds to be paid over to the judgment creditor. 
    (f) The requirements or limitations of this Section do not apply to the enforcement of any order or judgment resulting from an adjudication of a municipal ordinance violation that is subject to Supreme Court Rules 570 through 579, or from an administrative adjudication of such an ordinance violation. 
(Source: P.A. 97-848, eff. 7-25-12.)

Corporate Counsel Job Opening in Glenview, IL

Position Profile: 

 
Anixter is seeking a Senior Counsel–Corporate & Securities for its global Legal team in Glenview, IL.  This position will manage a wide variety of legal work in the areas of SEC, M&A, corporate governance, corporate finance, and compliance. 
 
Responsibilities: 
 
The Senior Counsel’s responsibilities will cover the entire spectrum of corporate and securities matters that would typically confront a public U.S. company of this size and complexity, including: 
 

• Supporting the preparation of SEC filings, including 10-Ks, 10-Qs, 8-Ks, Section 16 filings, proxy statements, registration statements, etc.
• Staying abreast of, and ensuring compliance with, federal and state securities and corporate laws, as well as applicable rules and regulations of exchanges and industry organizations that affect public company reporting or compliance and public M&A, including Sarbanes-Oxley, Dodd Frank, ISS, Glass Lewis, etc.
• Supporting internal processes and procedures for SEC compliance and M&A, including SEC filings, sub-certification, and trading blackout processes.
• Based on size, complexity, and location, assisting on and/or taking lead role on mergers, acquisitions, joint ventures, and minority investments, on both a domestic and cross-border basis.  
• Assisting with the corporate secretarial support for the Company’s Board of Directors.  
• Supporting the Company’s financing activities.
• Collaborating with, advising, and supporting a broad range of departments and functions domestically and internationally, including Internal Audit, Finance, Treasury, and others as needed.
• Assisting with coverage of general corporate and commercial matters, including reviewing commercial and other contracts, as needed.
• Assisting in various other compliance activities throughout the Company, including, without limitation, the development and implementation of annual and long-term strategic compliance initiatives for the Company.
• Assisting in and/or managing the investigation of potential compliance violations and Hotline calls, and monitor investigation trends, if apparent, to identify risk areas for further adjustments to the Company’s compliance initiatives.
• Participating in regional and global compliance meetings.
• Managing outside counsel.

  
Requirements: 
 
The successful candidate will have 7+ years of legal experience with a law firm and/or corporate legal department. A strong background in SEC, M&A, corporate governance and corporate finance is required.  In addition to excellent legal and analytical skills as a corporate attorney, the right candidate will possess outstanding communication and interpersonal skills and an ability to interface with a broad range of senior business executives, and other colleagues and professionals.  

• Juris Doctorate and current bar admission is required.
• At least 7 years of securities and public company reporting experience in a law firm and/or corporate legal department.
• Both public and private M&A experience in a law firm and/or corporate legal department.
• Pragmatic and business-focused mindset with demonstrated ability to take ownership, and to manage multiple projects simultaneously with ability to focus on critical priorities with minimal supervision.
• Highly polished and effective negotiation, communication, and drafting skills, including those suitable for interaction with senior managers and executives.
• Proven ability to lead and execute all facets of challenging transactional engagements—from preliminary/conceptual advice, through structuring, due diligence, negotiating, drafting, closing, integration and post-closing conflict resolution.

Preferred Requirements: 
 

• Prior in-house experience a plus
• Previous experience managing one or more people is a benefit.

Contractor Permanently Barred From Future Home Repair or Remodeling Work

As loyal Blog followers will recall, I have written extensively about the Illinois Home Repair and Remodeling Act (the "Act") for the past several years.  (For instance, the consequences for failure to deliver the Consumer Rights Brochure, the availability of equitable remedies for contractors without written contracts, and an analysis of my Illinois Supreme Court case involving the Act's applicability to subcontractors.)

Until now, all of the published cases involving the Act have involved private disputes between homeowners and contractors.  You will recall, however, that the Act allows the Attorney General or the State's Attorney of any county to bring an action in the name of the people to remedy violations of the Act.  Section 35 of the Act says that all remedies, penalties,and authority granted the Attorney General or State's Attorney under the Consumer Fraud and Deceptive Practices Act shall be available to him or her for enforcement of the Home Repair and Remodeling Act.

In 2009, Attorney General Lisa Madigan filed five lawsuits in Cook County against contractors for violations of the Act.  (See her press release HERE.)  Last week, the First District appellate court issued an opinion in People v. Steven R. Smith.  The State alleged that Mr. Smith violated by the Act, the Consumer Fraud and Deceptive Business Act, and the Roofing Industry Licensing Act.  The State alleged that he was in the business of providing home repair services despite not being a licensed contractor, that he failed to give the Consumer Rights Brochure, and that he took partial payments on jobs but then failed to complete the jobs or refund the money.  

Mr. Smith defended the case pro se (never a good idea ... unless you're THIS GUY).  Mr. Smith failed to answer several paragraphs of the complaint and key allegations were deemed admitted.  As a result, summary judgment entered against him in the trial court.  The court entered a civil penalty of $50,000 against Mr. Smith and also permanently enjoined him from engaging in future home repair or remodeling work in Illinois.  

Mr. Smith argued on appeal that the permanent injunction prohibiting him from future home repair or remodeling work was unduly harsh because it barred him from performing an otherwise lawful activity upon which he depended for his livelihood.  The Appellate Court first noted that a permanent injunction was an available remedy under Section 7(a) of the Consumer Fraud Act.  That section states that "The Court, in its discretion, may impose an injunction..."  So, the Appellate Court stated that it would not disturb the trial court's exercise of discretion absent an abuse of that discretion.  After examining Mr. Smith's widespread practice of accepting deposits from customers but then not performing the work, the Court found that the injunction was reasonable because it was specifically tailored to prohibit the activity underlying Mr. Smith's previous illegal acts.  

So, if Mr. Smith is caught doing home repair and remodeling work in the future, even if doesn't swindle anybody next time, he could be found in contempt of court for the violation of the permanent injunction.

The 7-Year-Old Bankruptcy Debtor

I was doing some bankruptcy research and I came across a case involving a 7-year-old bankruptcy debtor.  I could just stop right there because that is all I really wanted to tell you, but I guess I will give some further explanation.

The case involved a minor child who inherited a house from her father.  During her father's illness, the family fell behind on the mortgage.  After the death of her father, she also began receiving social security survivor's benefits.  Although she was not personally liable on the mortgage, the debtor and her mother wanted to save the house.  

The mother filed a Chapter 13 case as "next friend and mother" of the debtor.  The lender was the only creditor.  The Chapter 13 plan proposed cure the arrearage and make current  mortgage payments with the social security benefits.  The lender did not object to the confirmation of the plan.  The trustee objected, however, on the grounds that the debtor was not eligible for Chapter 13 relief because a parent lacks authority to file bankruptcy on behalf of a minor, absent state court approval.  

The Court first examined whether minors can file bankruptcy.  The Court found no provision of the Bankruptcy Code that requires a Chapter 13 debtor be an adult.  The only requirement is that a Chapter 13 debtor must be an "individual with regular income" pursuant to Section 109(e).  The Court then analyzed the Federal Rules of Bankruptcy Procedure.  For instance, Rule 1016 authorizes the continuation of a case when the debtor becomes incompetent during the administration of a case.  The Court could not infer from the rules that the drafters intended any opinion with respect to the eligibility of an incompetent to file bankruptcy in the first place.  

The final question was whether the mother was required to comply with any appointment or qualification procedures under state law before filing the petition as "next friend" of the minor.  The Court pointed out that  Federal Rule of Civil Procedure 17 (Capacity to sue or be sued) would normally control this issue.  However, Fed.R.Civ.Pro. 17 is not specifically made applicable to bankruptcy cases by the Bankruptcy Rules.  So, the Court turned to the "gap filling" function of Bankruptcy Rule 9029(b).  Rule 9029(b) provides flexibility to the court in regulating practice when there is no controlling law.  That Rule states: "Procedure When There is No Controlling Law.  A judge may regulate practice in any manner consistent with federal law."  

After determining that it could apply Fed.R.Civ.Pro. 17, the Court used that Rule to hold that a minor who lacks a general guardian may sue by next friend and that no special appointment process for the next friend is required.  

HERE is a link to the case.

Latina Women: The Hidden Struggle

The Women’s Law Caucus and Latino/a Law Student Association of NIU-COL is co-sponsoring the presentation, Latina Women: The Hidden Struggle. It will be held on Monday November 12 at 6pm in the Riley Courtroom at Swen Parson Hall, Northern Illinois University. We invite alumni, guests and any other interested parties to come out for our evening presentation. To begin, Professor Arriola will be presenting the obstacles that women on the U.S./Mexican border face. In the second half, Professor Maddali will discuss the difficulties Latina women in the United States face. The presentation will be followed by a reception in the Marshall Gallery.

Will County State's Attorney Race Features Two NIU-COL Grads

The race for Will County State's Attorney is heating up  I live in Kendall County, so I will spare you my opinions on this race.  I just wanted to forward the attached article which talks about the impact of the Drew Peterson and Christopher Vaughn cases on the election.  The article also points out that the candidates, incumbent James Glasgow and challenger Dave Carlson, both earned their law degrees at NIU.

Will County state’s attorney race - Joliet Herald News

The Vegas Strip Steak Patent

A group of food scientists from Oklahoma State University have applied for a patent for an entirely new cut of steak.  They call it the Vegas Strip Steak.  This is a brilliant marketing strategy that I wish I would have thought of first.  The idea that some savvy business people could patent a cut of beef that has existed inside cattle for millennia intrigues me.  I love a good steak, but I like making a buck even more. 

I'm not an intellectual property lawyer, nor did I stay at a Holiday Inn Express last night, so I don't know if they'll actually get their patent.  I did a little reading on the process, however.  If you're interested, there are good articles on Slate.com and Freakonomics.com.  

They have their own website for the steak HERE and the picture makes my mouth water a little.   I am a tad bit skeptical, however, because people have been slaughtering beef cattle for a long time.  If no one has isolated this particular steak yet, I'm guessing that is probably better utilized as hamburger, like it has been for hundreds of years.  But, like I said, more power to the innovators who are trying to capitalize.  

Free Illinois Court Forms

I just came across a website called Smokeballforms.com.  The website contains over 2,000 Illinois legal forms, usually categorized by county. It also has bankruptcy and Federal Court forms.  All of the forms open in Microsoft Word, so they are easily filled-in or modified.  You must register to access the forms, but registration is free.  It looks like a pretty useful site.  

Illinois Supreme Court Adopts Electronic Filing Standards and Principles

The Illinois Supreme Court has approved Standards and Principles for electronic filing that will apply statewide beginning on January 1, 2013.  Each county will be authorized to develop e-filing procedures, and they will largely be left on their own to do so, but all counties must comply with these statewide standards and principles.

HERE is a copy to the press release, which contains the Standards and Principles as an attachment.

Dreyer Foote's New Website

My firm revised its website today.  There are a few minor corrections still being made, but the site is substantially complete.  Check it out HERE.

Referee Malpractice Lawsuits

The football fans out there will remember the controversial call at the end of the Packers-Seahawks game earlier in the NFL season.  Most Packers fans blame that loss solely on a referee's blown call.  I follow football and basketball year round, so I've seen my share of missed or blown calls throughout the years. But the referees have been in the news more than usual lately, so that got me thinking --Can a referee be sued for malpractice?

I did some legal research and found an interesting case from the Iowa Appellate Court.  Jim Bain was a Big Ten basketball referee during the 1980s.  He was reffing the Iowa vs. Purdue game at Carver-Hawkeye Arena on March 6, 1982.  During the final seconds of that game, Bain called a foul on an Iowa player that gave Purdue two free-throws in the closing seconds.  Purdue hit the shots to win the game, knocking Iowa out of contention for the Big Ten championship.  Most Iowa fans blamed Bain for the loss, asserting that the call was clearly blown.

John and Karen Gillispie operated a sports memorabilia store in Iowa City.  Shortly after that game, the Gillispies began selling "Jim Bain Fan Club" t-shirts.  The shirts had the picture of a man with a rope around his neck.  Upon learning of these t-shirts, Jim Bain sued the Gillispies for an injunction to prohibit future sales of the shirts and for actual and punitive damages.

The Gillispies counterclaimed for referee malpractice.  They claimed that Bain's conduct in officiating the Iowa-Purdue game was below the standard of competence required of a professional referee.  The Gillispies claimed that Bain's malpractice cost Iowa the Big Ten title, and, as a result, destroyed the market for Big Ten championship memorabilia at their store, costing them more than $175,000 in future profits.

The Court found that Bain did not owe any duty of care to the Gillispies.  Their damages for lost profits were not a reasonably foreseeable consequence of Bain's acts as a referee.  The Court held that referees are in the business of applying rules to athletic contests, not creating a marketplace for others.  It was therefore beyond the scope of Bain's duties as referee to make calls at all times with the profits of businesses worldwide in mind.

This is obviously a very limited holding that basically says fans can't sue referees.  However, what if the University had sued Bain because Iowa did not make the NCAA tournament?  Surely, that is a foreseeable consequence of a blown call by a referee.  What if the Iowa player who was called for the foul had sued?  What if that loss cost him a spot in the NBA draft or money on his first NBA contract?  Aren't NBA rookies paid more money if they were Big Ten champions in college?  

I don't represent any sports franchises or universities, so I have not done this research. My next research project will be whether I can file a coaching malpractice case against Lovie Smith the next time he wastes a timeout on a horrible challenge.  

HERE is a link to the Bain case.

Congratulations to the Glassman Law Offices

I just found out that Eydie Glassman ('02) has started her own firm in Rosemont, Illinois. The Glassman Law Offices focuses its practice in municipal/government law, civil rights, labor and employment, personal injury, family law, and general contract disputes.

Eydie formerly practiced at Johnson and Bell, Ltd. in Chicago until starting this new venture. Good luck to Eydie.  

The Cosentino Law Firm is Hiring

The Cosentino Law Firm LLC is currently accepting applications for the position of associate attorney. The attorney will work primarily from the firm's DeKalb location and should have an interest in bankruptcy and collections. 

Interested candidates should submit resumes by U.S. Mail ONLY to the firm at 213 South 2nd Street, DeKalb, IL 60115, and direct them to the attention of "April".

Two New Job Postings

I became aware of two new job openings today:

Codilis & Associates in Burr Ridge is looking for a full time real estate attorney within 3-5 years experience in residential real estate closings.  Experience in a high volume closing environment and a strong title background is necessary.  Interested candidates should email resumes, including salary requirements, to lisa.petruzzi@il.cslegal.com.

Also, Woodruff Johnson & Palermo in Aurora seeks a plaintiff's personal injury/work comp lawyer with 1-5 years experience.  Send resumes to Linda via fax (630-585-2327) or email (lurlakis@woodrufflawyers.com).

The Drew Peterson case just got interesting.

Drew Peterson's new lawyers just filed a Motion for a New Trial Based on the Ineffective Assistance of Attorney Joel Brodsky, a complete copy of which is embedded below.  This motion is full of juicy stuff.  The allegations of ineffective assistance are contained on pages 5 and 6. Among them:

• Joel Brodsky had never tried a felony jury trial before this one, much less a murder case.
• Joel Brodsky refused to file a speedy trial demand for Drew Peterson, which lead to a 3 year delay and allowed the State enough time to enact "Drew's Law."
• Joel Brodsky assured Drew Peterson that they would both make money from the pretrial publicity.
• Joel Brodsky threatened to reveal confidential information if Drew tried to fire him.  (I wonder what confidential information he was talking about...???)

Attached as exhibit to the motion is a letter written to Joel Brodsky by Steve Greenberg.  This letter is GREAT!!  It contains many more juicy allegations than are contained in the body of the motion.  I highly suggest that you spend 5 minutes reading it.  

(h/t @facsmiley)

Drew Peterson Ineffective Counsel Motion against Joel Brodsky

Mortgage payments following bankruptcy

A bankruptcy debtor can decide to surrender or keep their house in a Chapter 7 (assuming that the house has little or no equity and the trustee does not want to sell it for the benefit of creditors).  If the debtor decides to surrender, the lender will probably file a foreclosure and the debtor can walk away scot-free.  

If the debtor decides to keep the house, he basically has two options, only one of which is supported by the Code.  Technically, if a debtor wants to keep the house, he has to reaffirm the debt under Section 524.  Reaffirmation agreements are hardly advisable, however, because a debtor rarely will want to sign back on the line for hundreds of thousands of dollars to secure a house with little or no equity, especially since he just went through the time and expense to wipe out that very same liability.  

Practically speaking, there is another option.  A lot of debtors choose to "retain and pay" where they just keep making the payment even though their personal liability has been discharged.  The hope is that the lender will not want to foreclose as long as they are getting regular payments.  With this option, the debtor can still decide to walk away at any time in the future at no risk because he has not reaffirmed the debt.

The problem, however, is that mortgage lenders are not easy to deal with following a bankruptcy.  Most lenders will stop sending mortgage statements to the debtor.  They will also terminate any online access to the account that the debtor had set up.  I always thought that the lenders feared violating the discharge injunction because sending a statement could be viewed as an attempt to collect a discharge debt.

That is not possible, though, because Section 524(j) says that lenders can take steps in the normal course of business to seek or obtain periodic payments in lieu of in rem relief to enforce their lien.  In plain English, they can still send statements if they want to collect payments instead of filing foreclosure.  Now, I guess that the reason they are difficult to deal with is that they want to force the debtors to reaffirm.  

NIUCOL TAILGATE AT HOMECOMING GAME

Saturday, October 13, 2012

Tailgate Party with the Dean
11 a.m. - 2 p.m.
NIU Law Tent - Alumni Village (Near Huskie Stadium)
Join NIU Law alumni, faculty, staff and students at our Homecoming Tailgate Party. We will have a tent in Alumni Village just off Annie Glidden Road and Stadium Drive with FREE food and drinks.

Buffalo vs. NIU
Kick Off: 2:30 p.m.
Purchase tickets in the NIU College of Law section for $8 each. Tickets are limited and available on a first-come basis.

RSVP

Please help us plan accordingly. To RSVP for tailgating and/or purchase football tickets, contact Melody Mitchell at lawevents@niu.edu or (815) 753-9655.

Northern Law Blog hits 100,000 Page Views!!

As I write this post, the Northern Law Blog has 99,987 page views.  I hope I'm not jumping the gun, but I'm pretty confident that we'll get to 100,000 sometime today.  This Blog has come a long way in the past 3 years.  In my opinion, this is just the beginning.  We need to keep producing quality content and pretty soon we'll hit a million!

Don't Write Law Review Articles; Blog Instead

I read an excellent article on Lawyerist.com yesterday.  It was titled "Don't Waste Your Time Writing Law-Review Articles."   It was written by Matthew R. Salzwedel, a practicing attorney in Minnesota, a former clerk for the Minnesota Court of Appeals, and the former lead managing editor of the Minnesota Law Review.  

Mr. Salzwedel points out that the trend in legal scholarship is short, focused columns and blog posts.  He points to the dramatic decline in law-review subscriptions and argues that short, narrowly focused articles written for local newspapers and online publications (read, "blogs") are now the preferred way to improve your legal writing skills and market your practice.  He argues that lawyers shouldn't write law-review articles because it is a long, tedious, and exhausting process that probably will not equate to a single new client.  He points out that he has never obtained a single client lead from a law-review article, much less an actual paying client.

I wholeheartedly agree.  I have been pushing this exact message, although much less eloquently, for many years.  I would never even consider writing a law-review article.  I turned down the opportunity to "write on" to the law-review in law school.  I could not imagine a bigger waste of my valuable and limited time while living on a college campus. (Insert winky-faced emoticon here.)  To even consider writing a law-review article as a practicing lawyer is absurd.  Who are you trying to impress?  The three, 23 year-old editors who are only reading it to pad their own resumes?

On the other hand, my practice has benefited greatly from this blog.  I have obtained dozens of paying clients through this blog.  It is amazing how often I hear from clients that one of my blog posts turned up in a Google search and lead to a a phone call to my office.  I have heard the exact same thing from other contributors to this blog.  In fact, the two most-read posts ever on this blog were not written by me.  Where would you rather find your name nowadays?  On Google or on the dusty shelf in the basement of a law library?  If you choose the former, rather than the later, you can get full access to the blog by emailing me HERE.

West's Headnote of the Day

Driver approaching intersection is not bound to look in all directions simultaneously, nor need he swivel his head like ventriloquist's dummy in order to be free of contributory negligence.

Bascelli v. Bucci, 368 A.2d 754 (Pa. Super. Ct. 1976)

Prairie State Legal Services is Hiring

An article in yesterday's Rockford Register Star said that Prairie State plans to add 13 attorneys to defend foreclosure cases.  The funding for the new hires will come from a settlement obtained by the Attorney General's office.  HERE is a link to the article.

Emergency Motions in Bankruptcy Court

The U.S. Bankruptcy Court for the Northern District of Illinois just issued a new General Order regarding procedures for emergency motions.  The procedures must be followed for anyone seeking emergency relief after October 1, 2012.  The Order states that matters may only be treated as an emergency if "it arises from an occurrence that could not reasonably have been foreseen and requires immediate action to avoid serious and irreparable harm."  I wish there was a state court equivalent to that order.  I've often thought that most "emergency" motions filed in state court are not really an emergency at all.  

In any event, I thought you should be aware of this new Order, a copy of which can be found HERE.

My 1L summer internship experience at BP America Inc.

My 1L summer, which ended a few weeks ago, was memorable.  Not only was I thankful that I had emerged alive at the other end of the first year of law school, I was also incredibly fortunate to receive an offer from BP to be one of its two legal interns at its Naperville-Chicago offices.  The internship is supported by the Diversity and Inclusion (D&I) initiative of BP's Legal Department, and applicants are required to demonstrate a commitment to D&I.

Being a BP intern was a privilege with huge benefits.  As everyone who's ever been a law student probably knows, there are very few 1L internships.  Of those available, most are unpaid, or at best, minimally paid.  Not only does BP add some serious weight to one's resume, it also provides a healthy salary and a tremendous learning opportunity.

To begin with, all the legal interns (five across the company) were taken to corporate headquarters in Houston for a week of orientation.  The orientation included such onerous tasks as a steak dinner at one of Houston's finest dining establishments, and a day in Galveston visiting the Offshore Drilling Museum and lunching on fresh seafood by the ocean.

On returning to Illinois, I was immersed in the work-world of BP's attorneys -- all of whom have impeccable credentials (Managing Editor of Stanford Law Review!  Undergraduate degree from Yale!  Taught at MIT!  Formerly of Katten!  Formerly of Sidley!  Formerly of Jenner & Block!  etc.).  I rotated through all the practice areas in the Naperville-Chicago offices, spending one week in each.  Devoting time within many areas and watching attorneys interact so closely with their clients (in some cases, they literally work in the same room) taught me volumes about the practice of the law.  Some lessons were unique to the corporate counsel experience.  For instance, I was invited by one of the attorneys to a day-long Incident Response Seminar at which several business units strategized on how to respond to an incident, and I saw where and how Legal fit into that plan.  It was an experience unique to a major corporation with a large in-house legal department like BP, and it gave me a very specialized perspective.

BP went to great lengths to groom me for my legal career.  I went through a resume review, a session on interviewing tips, and three mock interviews towards the end of my internship, to help prepare me for my future job search.  As an intern, I was partnered with an attorney who was my "buddy" and my main contact.  He would stop by my desk every day to chat, give me pointers, and answer questions.  I went into his office often -- to talk about my interests, ask questions about firms, and discuss the law school experience.  He pulled me into meetings with clients, external counsel, consultants, and other attorneys within the group, and patiently cleared the fog that often clouded my mind.  He provided a wealth of advice and encouragement, and always had time for me.  I was assigned another attorney for my summer project -- a comprehensive presentation on a consent decree.  She made time to explain complex technical matters to me, took me to meetings with the client, reviewed my draft, resolved my confusions, fielded the tough questions at my presentation, and was unfailingly supportive.  Throughout the legal department, no door was shut to me.  People were friendly, cheerful, and always ready to feed me lunch.

Thanks to BP, my interests have broadened.  In particular, I hope very much to be involved in D&I initiatives wherever I work.  Before my internship, I didn't even know that such an area of activity existed within a business organization.  BP not only taught me about its existence and its visibility, it also showed me how much of a priority it can be to an organization.  BP has shown me what D&I can look like within an organization, and I plan to build on that experience.

Without the least bit of exaggeration, I can say that I loved every single day of my summer at BP.  I created friendships, built connections, and was part of the legal team of one of the largest corporations in the world.  It was, without a doubt, the 1L summer of my dreams.

Kane County Eviction Guidelines

I have previously posted the Sheriff's eviction instructions for Will and Kendall Counties. The Will County instructions are HERE and the Kendall County instructions are HERE.  Also, both of these are linked in the Forms Archive of this Blog.

Now I also have a link to the Kane County Eviction Instructions.  The Kane County instructions can be found HERE and they are also located in the Forms Archive.

Kendall County Eviction Guidelines

Several months ago, I posted the Will County eviction instructions published by their Sheriff's Department.  HERE is a link to that post and the instructions are also linked in the Forms Archive portion of this Blog.

Those instructions have gotten a lot of clicks since I put them up, so I am now linking to the Kendall County Eviction Guidelines.  HERE is a link to the Kendall County Guidelines. They also appear in the Forms Archive as well.

Let me know if anybody has any questions.

Law School Tuition in Illinois

As reported in the Chicago Daily Law Bulletin, here are the tuition amounts for in-state students for all law schools in Illinois (in alphabetical order):

• DePaul University College of Law - $43,636
• IIT Chicago-Kent College of Law - $42,900
• John Marshall Law School - $42,724
• Loyal University Chicago School of Law - "around $41,000"
• Northern Illinois University College of Law - $19,811
• Northwestern University School of Law - $53,468
• University of Chicago Law School - $53,560
• University of Illinois College of Law - $37,100
• Southern Illinois University School of Law - $16,995

I wonder what value the Chicago students receive that is worth 2-3 times the NIU tuition?  This chart just confirms my decision nine years ago to go to Northern.

LCD Class Action Lawsuit

If you bought a LCD flat-panel TV between January 1, 1999 and December 31, 2006, you may be entitled to a settlement in a current class action lawsuit.  The case alleges price fixing of the screens.  

Unfortunately, the class action does not apply to purchases made in Illinois.  So, if you reside outside of Illinois, and you picked up this blog on Google, or if you happened to purchase a TV while on vacation out of state, you are in luck.

Claims can be submitted online at www.lcdclass.com. Anticipated payment to claimants is $25.00.

Long Term Care Insurance: The basics that every attorney should know about the changing landscape of long term care

The long term care industry has evolved over the last 30 years with perhaps the most significant changes occurring within the last 5 years.  Many new products are now available, bringing access to long term care to those who previously could not qualify for coverage.  Today, a long term care solution can be tailored to your client’s specific financial as well as medical situation.  The changing landscape within the long term care industry is providing an opportunity for attorneys in tax, estate planning, and elder law to enhance the value that you bring to your clients as a trusted advisor.  By incorporating a discussion about long term care into your estate planning process, you have an opportunity to address a client’s pressing need for long term care as well as provide additional ways to preserve and protect the client’s financial assets.  The discussion that follows will provide an overview of the changing landscape of long term care. 

Traditional long term care insurance has previously been out of reach for many clients due to a client’s pre-existing medical conditions.  Unfortunately, many people tend to wait too long to begin thinking about long term care insurance and by the time they shop for coverage, they cannot obtain the coverage due to either advanced age, cost of coverage, or pre-existing medical conditions.  The conversation with clients can begin as early as age 45 or whenever a client first contacts their attorney to discuss estate planning and asset preservation issues. 

Traditional long term care insurance is underwritten in a manner similar to life insurance.  The underwriting process typically requires a physical examination as well as a five year look-back period whereby the underwriters can request an applicant’s medical records going back five years from any medical provider.  There is a long list of common medical conditions that serve as “knockout” conditions that disqualify an applicant from obtaining long term care.  The list of common knockout conditions can include any diagnoses of a chronic disease or medical condition, even if the condition is not severe or presently manifesting itself, and can include diabetes, multiple sclerosis, Alzheimer’s, dementia, congestive heart failure, heart attack, stroke, and various types of cancer, etc.  The brief list provided is not an exhaustive list and each insurance company provides its own list of disqualifying conditions. 

Traditionally the analysis came down to whether a client had sufficient financial resources to self insure or whether they could afford or had the desire to purchase long term care insurance.  These elements of the analysis remain largely unchanged.  The difference today is the choice in insurance carriers that provide long term insurance policies and the types of policies that are available.  However, the choice still ends up centering around what can the client afford and which solution is the most suitable to the client.  Suitability varies from client to client depending on their financial resources, age, risk tolerance, time horizon, and any tax, estate planning, and asset preservation planning issues unique to the client. 

A client with several million dollars in assets might choose to self insure.  However, there remains the risk that even a person with substantial assets could spend through their entire nest egg and end up being a burden to their family or to society.  The most rational choice for clients with substantial financial resources who wish to pass on a rich legacy to their heirs would be to purchase long term care insurance.  Even for clients with modest means, long term care insurance makes sense if the client can afford it in order to not spend through one’s assets or become a burden to loved ones. 

The cost of care is high today, no matter whether it is private at-home care or care given in a nursing or assisted living facility, and the cost is likely going to continue to increase in the future.  For example, it is commonplace today to spend $1500 per week, out of pocket, for non-qualified at home care that includes cooking, light cleaning, running errands, and occasional personal care.  This non-qualified care will cost $78,000 cash out of pocket this year and the cost would be even greater for qualified caregivers such as private at home nursing care.  Also, consider the cost of assisted living.  It is quite common today to spend $100,000 or more per year to keep a family member in a private room in an assisted living home.  These costs will likely continue to increase with time given inflation and changes in healthcare policy in our country.  Also, the cost goes up if the patient needs to move into a qualified nursing home. 

The need for long term care is great since people are living longer.  Today, if a disease doesn’t wipe-out a person quickly, the chances are great that person will live with the condition for many years.  In general, people are staying active longer and are living healthier, more productive lives.  Yet with all of the advances in medicine through the years, we have yet to come up with ways to ease the financial burden of growing old.  According to a 2008 study conducted by the Department of Health and Human Services, at least 70% of people over the age of 65 will require some long-term care services at some point in their lives.  Attorneys who get out in front of this issue with their clients by incorporating a long term care review into their estate planning process will be doing a great service for their clients. 

The traditional long term care insurance policy is a reimbursement policy that reimburses the insured person for certain caregiver expenses if they cannot do two or more of the Activities of Daily Living (ADLs) which include eating, bathing, dressing, transferring, toileting, and continence.  When shopping for traditional long term care, the client has a choice of the benefit amount, and the number of months of coverage, as well the type of inflation protection they desire.  If approved by the underwriters, the long term care policy goes into effect, and the client must make periodic payments either monthly, quarterly, semi-annually or annually to the insurance company. 

The traditional long term care insurance policy provides the purest form of long term care insurance.  However, the traditional approach has drawbacks which include stringent medical underwriting, the necessity of having to pay the insurance premium continuously out of pocket as long as you own the policy or until you make a claim on the policy, as well as the possibility that the insurance company one day imposes higher premiums. 

As mentioned at the beginning of this article, the long term care insurance industry has been undergoing rapid changes the last several years.  Several insurance companies have exited the long term care industry, while others have expanded their presence with the roll-out of new products.  Among the new products are several “hybrid” or “alternative” long term care solutions.  The two major alternative categories are 1) universal life insurance policies that include a long term care insurance rider and 2) variable annuities that contain long term care features. 

The most significant development in the long term care industry to come about with the introduction of the alternative products is the reduced or relaxed underwriting standard that is available through some of the insurance providers.  This is very significant because due to the relaxed underwriting, and in some cases no underwriting, clients with pre-existing medical conditions who ordinarily would not qualify for long term care, can for the first time purchase long term care coverage. 

The universal life insurance policy with long term care rider provides indemnification if a client cannot do two or more of the activities of daily living.  The underwriting process for the universal life insurance hybrid can be satisfied with a simple 45 minute phone call rather than the lengthy and invasive medical underwriting process that is customary with traditional long term care.  The universal life insurance hybrid provides three types of benefits.  1) If the client passes away suddenly without using the long term care feature, the policy will pay a death benefit to the client’s estate.  2) If a client purchases the policy and then changes their mind or a better product happens to come along and they want to get out of their current policy, some of the universal life insurance products provide a guaranteed return of premium.  3) The third benefit available with the universal life insurance hybrid is the long term care feature which will pay a specific dollar amount for a specified period of time if the client cannot perform two or more of the activities of daily living.  All that is required is a signature by the client’s own doctor to certify that the client is unable to perform two or more of the activities of daily living.  The certification must be renewed annually.  Some of the policies provide total flexibility which gives the client the choice whether to go into a qualified nursing facility, assisted living, or to receive care in their own home. 

The other alternative product is a variable annuity contract.  For those who are not familiar with these investments, a variable annuity is an investment vehicle that comes with an insurance wrapper, ie: there is an investment portion that can grow in value over time, as well as a contractual guarantee from the insurance company to pay some specified benefit to the policyholder or beneficiary at some point in the future.  In a typical variable annuity contract, a portion of the premium is used to pay for the cost of the insurance protection that the insurance company provides, and the remainder of the premium, less fees and expenses, is placed into a separate account at the insurance company and the money in the separate account is invested in a basket of investments such as mutual funds or indexes that follow the stock and bond markets.

The variable annuity featuring long term care requires no underwriting whatsoever.  This is extremely significant because those clients who would not qualify for any other type of long term care insurance due to a pre-existing medical condition can for the first time obtain a form of coverage.  The money the client places into the variable annuity contract is designed to grow if the pool of investments that the money is tied to grows.  If the investments don’t grow, the variable annuity contract provides an underlying step-up in value that the insurance company is contractually obligated to provide. 

As with all variable annuities, the investments in the separate account will continue to grow if the market performs well, or the policyholder will continue to receive the step-up in value from the insurance company either until the client reaches a specific age or until the client annuitizes the contract.  If the client annuitizes the contract, this means the client is turning the cash value of the variable annuity into a stream of income for life, guaranteed for as long as they live.  The long term care benefit comes into play if the client cannot do two or more of the activities of daily living and they obtain a signature from their physician, then the payout from the insurance contract doubles, serving as long term care.  The cash is provided on an indemnity basis and can be used for any purpose.  This gives the client total flexibility in choosing whether to stay in their own home or move into a care facility. 

Both the variable annuity and the universal life insurance solution are designed as single premium solutions.  These products can be purchased with a one time, lump sum, up-front premium rather than periodic payment of premiums.  This provides retired clients who may be living on a fixed income with the peace of mind of not having to worry about making periodic payments of their premium as is common with the traditional form of long term care insurance. 

As with most other types of life and health insurance, long term care tends to cost less if it is purchased when the client is younger and in their best health.  Premiums for traditional long term care and universal life insurance will increase with age.  Most of the resistance that clients have regarding long term care insurance tends to center around affordability.  Some clients may have obtained quotes for long term care products many year ago and dismissed it because it was too expensive.  It turns out that most attorneys as well as prospective clients are not even aware of the alternative/hybrid products that are available today and are not aware of the options available to pay for long term care.  The bottom line is that there is a long term care solution available for just about everyone today and the products are available in a range of price points and include a range of features.  The purchase of one of the available long term care solutions should not be dismissed out of hand simply based on a perceived lack of affordability. 

How to fund the purchase of long term care is a specific concern for many clients, especially for retirees who are living on a fixed income.  There are many ways to tackle the problem.  For those who built a small business and have recently sold a stake in their company, a lump sum from the sale of assets or the business could be set aside for long term care.  For those who retired with a 401(k) or IRA, several long term care solutions can be funded with assets from a qualified retirement plan.  A tax free 1035 exchange of the cash value out of an old life insurance policy or an old annuity is another very common way to leverage existing assets to obtain long term care. 

Each alternative has its own characteristics which can make the product either suitable or not-suitable for a specific client, depending on the facts unique to the client’s case, as well as the client’s time horizon, risk tolerance, and specific objectives.  A comprehensive discovery process is required before specific recommendations can be made to clients.  Doing the discovery and assisting the client with this analytical process should be left to the client’s financial advisor. 

Incorporating the discussion about long term care planning into an attorney’s tax and estate planning review should be adopted as a best practice as part of any holistic estate planning practice.  If handled the right way, a conversation about long term care would help get clients into the right mindset to address long term care with their financial advisor and help provide the client with action items that are consistent with preserving their hard earned assets and achieving a multi-generational transfer of wealth, as well as their other financial goals.  Reviewing these issues with your clients will enhance the value that you bring to your clients and, strengthen your value proposition as an attorney, helping you win more repeat and referral business, and helping to cement your position as one of your client’s trusted advisors.  

Illinois Criminal Policies and Procedures

The Illinois Criminal Justice Information Authority has released a new guide called “Policies and Procedures of the Illinois Criminal Justice System.”   The guide provides an overview of how the state adult criminal justice system typically operates in Illinois. It offers information on the flow of adult criminal cases through the criminal justice system including arrest procedures, the court system, pretrial activities, trial, sentencing, corrections, and the criminal record expungement process.  It offers a step-by-step outline of the criminal justice process, with ample citations to statutory authority.  It was apparently funded by a grant from the U.S Department of Justice.  

HERE is a link to the guide.  This will probably not be too much help to the experienced criminal lawyers who read this blog, but it is a great resource for those of us who are not so familiar with the process.

Victim 1 Sues Penn State

The man identified as Victim 1 at Jerry Sandusky's trial has sued Penn State.  HERE is link to his complaint, which was posted on his lawyers' website last night.  The five-count complaint alleges negligence/recklessness, fraudulent concealment/intentional misrepresentation, intentional infliction of emotional distress, negligent infliction of emotional distress, and aiding and abetting/civil conspiracy.  The complaint is long, but it is definitely worth reading for anyone interested in the Penn State tragedy and also for lawyers looking for tips on how to draft a thorough and detailed complaint.

There are some pretty damning allegations contained in that complaint.  Anyone who has followed this story over the past year is probably familiar with the story and will also probably acknowledge that there appears to be a high likelihood that Penn State will be found liable for covering up the abuse by Jerry Sandusky.

Looking right past liability for a second, my mind turns to the potential damages.  The complaint alleges that Penn State operates on an annual budget of more than $4.5 billion and maintains an endowment in excess of $2 billion.  These numbers become relevant when assessing punitive damages.  One of the purposes of punitive damages is to deter the defendant and others from acting similarly in the future.  The only way to do that is to hit them where it hurts (not a legal term) i.e., in the pocketbook.  The only way to make sure that it "hurts" is to know how much money the defendant has.

I plan to keep updating on this case as details emerge, so keep checking back.

Why do a Deposition? The Five (or is it six?) Reasons for a Deposition

Over the last few years I have come across three different lists of the purposes for taking a discovery deposition and here combine them into one.  Considering each of these may help you plan your deposition outline.

1 - Get information.  The deposition is your opportunity to ask open-ended questions to figure out what happened and what evidence exists that supports your side, or theirs.  Remember that establishing a rapport will relax the deponent and open him/her up.  Embarrassing the deponent with insensitive questions that, for example, belittle the deponent’s education or experience will close the deponent up and frustrate your primary goal. 

2 - Lock in the story.  Before trial you want to know your opponent’s version of events.  The deposition is your chance to lock that story in so that you can plan your trial strategy. 

3 - Get Impeachment Ammo/Get Admissions.  During depositions the opposing party or its agent(s) will say things that will be useful to you at trial.  When it happens, make sure the question you asked is useful to you.  If the question is compound, or vague, it won’t be effective impeachment. One expert recommended asking the important question three times, fine-tuning its focus until you have the exact question – and answer – that will be useful to you at trial.     

4 - Impress decision maker with the seriousness of the case.  The party, or corporate decision maker, might not be taking the case as seriously as needed to resolve it.  This is your opportunity to show that you take the case seriously and are prepared and determined to get to the truth. Memorize the facts and dates and use them in your questions so the deponent sees how serious and important the case is to you and your client.

5 - Size up the deponent as a witness.  Is the deponent articulate and clear on the facts?  A bumbling mumbler? Arrogant and easily trapped into admissions? 

And as explained by a litigation warrior of vast experience:

6 - Show the deponent what it will be like on the stand: After you have played nice and extracted every useful fact and admission, go after the deponent to give him/her a taste of what it will be like to be cross examined in court.  If the experience is unpleasant enough, a reasonable settlement offer may be coming your way.

Submitted by Brian D. Moore, Class of ’92.

brian@moorelawpc.com

www.moorelawpc.com

The other huge case in Will County.

Until recently, there were two huge cases pending in Will County, the State of Illinois v. Drew Peterson and the Village of Plainfield v. Michael Huseman.  One of those cases was just decided very favorably for the defense.  Sorry Drew!!

Most of you will recall that I have been waging a seven month battle against a speeding ticket (details HERE).  You will recall that I was on the way to court when I was ticketed and there is an Illinois statute that grants immunity to lawyers on their way to court.   

Well, I found out recently that the speeding ticket has been dismissed.  HOWEVER, it is the Village's position that that they have the right to re-file the ticket!!  The Village claims that  the current dismissal cures the statutory violation, but if they re-file the ticket my statutory immunity somehow does not come into play.  That does not make any sense whatsoever.  You can re-file the ticket ten times and they will all still relate back to the original traffic stop where I was unlawfully detained.  They must know something I don't.  We'll see what happens.  I will keep you apprised of any developments.  

Drew Peterson Juror Questionnaire

The juror questionnaire used in the Drew Peterson trial hit the internet today.  The questionnaire is pretty straight forward.  I just wonder how many potential jurors answered all questions honestly and completely.  Here it is:  

People v. Drew Peterson: Juror Questionnaire

(h/t to Justice Cafe)