Friday, October 24, 2014

Don't get hit in the head with a brick!

I just signed up for my park district 35+ basketball league. All participants must sign a "Waiver and Release of all Claims and Assumption of Risk." The form contains the following language, under the heading "Warning of Risk":
"Basketball is intended to challenge and engage the physical, mental and emotional resources of each participant. Despite careful and proper preparation, instruction, medical advice, conditioning and equipment, there is still a risk of serious injury. All hazards and dangers cannot be foreseen. Certain risks include, but are not limited to, the acts of shooting, passing, and catching the ball, being struck by errant balls, being struck by another player's body, running, jumping, stretching, sliding, diving, collisions with other players and with stationary objects, acts of God, horseplay, unsportsmanlike conduct, dangerous playing conditions, poor floor conditions, defective equipment, equipment failure, premises defects, slips and falls, failure in supervision and officiating, and all other circumstances inherent to the sport of basketball. In this regard, it is impossible for the Naperville Park District to guarantee absolute safety."
Shooting?! I have been playing basketball since before I could walk, but I never knew there was such a huge risk from shooting the basketball. Now, when OTHER people shoot the basketball, there is a huge risk of being hit in the head with a brick, such as Ryan Holmes, Andy Honaker, Brian Moore, Dexter Evans, etc., but I never knew that shooting the ball by oneself was such a risk.  (Just kidding guys....just checking to see who's reading!!)

Friday, October 17, 2014

No Immunity for Lawyer Who Prepared Order at Judge’s Request

Every day lawyers prepare orders reflecting a judge’s ruling.  Lawyers simply do not worry about potential liability for preparing an order that the judge lacked authority to enter. Quasi-judicial immunity should protect a lawyer who drafts an order at a judge’s express or implied request.

But not so fast. In Burton v. Infinity Capital Management, the Ninth Circuit Court of Appeals refused to  apply the doctrine of absolute quasi-judicial immunity to insulate a private lawyer from a claim that the order he drafted at the judge’s direction violated the automatic stay provisions of 11 U.S.C. § 362(a).

This is what happened. A Nevada state court judge ordered that a rule to show cause issue against attorney Koch when he learned that Koch deposited a personal injury award with the bankruptcy court rather than the Nevada state court. Attorney Gugino, in court representing a party asserting a lien against the settlement funds, was directed by the judge to prepare the show cause order.

Koch sued Gugino for preparing the order. The Ninth Circuit found that quasi-judicial immunity did not protect Gugino because he did not exercise judicial discretion in drafting the order. He merely acted as the judge’s scribe. The Court of Appeals further found that Gugino had “volunteered” to prepare the order. But the transcript hardly supported such a finding. During the hearing, the state judge declared, “I’m going to issue an order to show cause.” After dictating the details of the order, he asked, “Who wants to prepare the order?” The judge then said, “Mr. Gugino?” who responded, “I’ll prepare it, Your Honor.” This exchange could only be deemed to have secured a “volunteer” in the Ninth Circuit, in the military, or possibly in the marital relationship.

In dissent, Judge Gilman noted the unfairness of holding an attorney liable for carrying out the order of an immunized judge. He also lamented that the majority opinion “puts at risk the common practice of private attorneys drafting proposed orders on behalf of a judge.” Hopefully, Judge Gilman’s view will ultimately prevail since it is difficult to envision a trial court operating efficiently without orders drafted by attorneys.

Friday, October 3, 2014

Seeking Leave to Prosecute or Defend a Civil Lawsuit Under a Fictitious Name

Last month, the Illinois Appellate Court issued one of the few opinions interpreting section 2-401(e) of the Code of Civil Procedure. Section 2-401(e) allows a litigant to appear under a fictitious name upon a showing of “good cause.” In  Doe v Northwestern Memorial Hospital, 2014 IL App (1st) 140212, a group of plaintiffs filed complaints against Northwestern Memorial Hospital and Northwestern Medical Faculty Foundation alleging that the defendants negligently allowed a cryogenic tank to fail causing damage to semen and testicular tissue stored in the tank. Most plaintiffs suffered from cancers which were likely to significantly interfere with their ability to engage in ordinary reproductive activities.

In affirming the trial court’s order allowing the use of pseudonyms, the appellate court noted the dearth of authority addressing what constitutes “good cause” to avoid the general rule that the public has the right to know who is utilizing tax supported courts. Doe at ¶ 35. The court recognized that the use of pseudonyms is disfavored and reserved for “exceptional circumstances” involving “highly personal” matters such as abortion, adoption, sexual orientation, and religion. Doe at ¶ 35, 39. Applying a balancing test, the court found that plaintiffs’ reproductive health and medical treatments were “extremely private and sensitive topics” and that individual privacy concerns outweighed the public’s interest in open court proceedings. Doe at ¶39.

Like most courts that break new ground, the justices tried to limit the impact of their decision by describing the circumstances as “exceptional, the result of a confluence of factors that might never recur.” Doe at ¶ 43. But the ramifications of the opinion should not be underestimated. Reproductive health and potentially a litigant’s privacy interest in treatment for any serious illness might justify invoking section 2-401(e). Indeed, it appears that “good cause” might be established whenever any type of privacy interest outweighs the public’s interest in open judicial proceedings. Doe v. Northwestern Memorial Hospital is necessary reading before seeking leave for a client to appear under a fictitious name.