Thursday, December 10, 2015

Husemans Usually Win Big Cases

Most people have probably googled their own name at some point. But I took it one step further. I did a nationwide Lexis search for published court opinions involving Husemans. It turns out that three Husemans have had their cases heard before state supreme courts, two in Illinois and one in Indiana. 

We're two out of three and we're on a hot streak considering that we won the last two. It has been a while though ... our last victory before the Illinois Supreme Court came in 1914.

Here are the three cases:

Huseman v. Sims, Supreme Court of Indiana, December 30, 1885: 

This case originated out of Dearborn County, Indiana. Mr. Huseman (his first name was not identified), due to unfortunate circumstances that were probably outside of his control but which were not explained in the court's ruling, had apparently fallen behind on his rent. His landlord obtained a judgment against him for $1,059.25. Mr. Sims was the county sheriff. At the instruction of the landlord, Mr. Sims, as sheriff, seized Mr. Huseman's property in order to sell it and pay off the judgment. 

Mr. Huseman contended that the seized property was exempt from execution, so he sued the sheriff. Huseman lost at trial and then appealed. The Indiana Supreme Court found that Mr. Huseman did not properly raise his exemptions at trial, so the sheriff's execution was proper. 

Huseman loses on a technicality. 

Sassenberg v. Huseman, Supreme Court of Illinois, October 16, 1899:

This case originated out of Bureau County, Illinois. The Sassenbergs were the heirs of a man who had once owned a farm in Bureau County consisting of 120 acres. John and Anna Huseman claimed to be the rightful owners of the farm, having purchased it prior to the decedent's passing. The Sassenbergs challenged the Husemans' deed as a forgery and attempted to acquire title to the farm. 

The trial court believed that the Husemans were honest people who had legally acquired the farm. The Strassbergs appealed. The Illinois Supreme Court found that the witnesses who testified at trial were credible, including the decedent's daughter who witnessed the execution of the deed and the notary public. 

The Supreme Court affirmed that the Husemans were honest, trustworthy people. Big win for the Husemans, not that it was ever really in doubt.

Bruns v. Huseman, Supreme Court of Illinois, December 16, 1914:

This case originated out of Whiteside County, Illinois. Anna Mary Huseman, who was 80 years old at the time, owned a farm consisting of 157 acres. Ms. Huseman verbally authorized a man named Vernon C. Freeman to sell her farm. Mr. Freeman allegedly sold the farm to Mr. Bruns for $8,500 and took $500 down. Mr. Freeman presented a deed to Ms. Huseman, which she signed, but it was never delivered to Mr. Bruns or recorded with the county. Mr. Bruns sued Ms. Huseman for specific performance in order to force the sale of the farm for the remaining $8,000. Testimony at trial indicated that the farm may have been worth up to $125 per acre, or $19,625. Ms. Huseman resisted the specific performance of the alleged contract due to an allegedly fraudulent scheme between Mr. Freeman and Mr. Bruns to obtain title to the farm for a grossly inadequate price.

The trial court ruled that an agent's authority to bind the owner to a sale of real estate must be in writing pursuant to the statute of frauds. Therefore, Mr. Freeman did not have authority to sell the farm for $8,500. The Supreme Court affirmed.

Another big win for the Huseman family. Hopefully we can keep the streak alive if we find ourselves before the Supreme Court again. 

Saturday, December 5, 2015

Defendant’s Name Must Appear on Face of Summons

The sample summons in Illinois Supreme Court Rule 101(d) requires “naming all defendants.” Illinois Supreme Court Rule 131(c) states that in multiple party cases, “it is sufficient in entitling documents, except a summons, to name the  . . . the first-named defendant with the usual indication of other parties (emphasis added).” So, what happens when a plaintiff files an action against several defendants, naming one defendant and adding the “et al” designation to each summons? Is the failure to include a defendant’s name in the caption of the summons a barrier to obtaining personal jurisdiction over that defendant even if the defendant is served? Arch Bay Holdings v. Perez (here), provides the answer.

Arch Bay filed a foreclosure action against a husband, wife, and other defendants. Each summons listed the husband by name followed by “et al.” The wife was served but did not appear. The court entered a default judgement against her. The trial court rejected the wife’s 2-1401 petition which claimed a lack of personal jurisdiction because her name did not appear on the summons. The Appellate Court, Second District, reversed.

The appellate court held that the model summons in Rule 101(d) requires that the names of all defendants appear in the caption of the summons. The fact that the wife’s name appeared on an attached list of defendants to be served did not cure the defect. And even thought the wife was served, “the missing name from the face of the summons was a barrier to obtaining personal jurisdiction” over her.

Saturday, November 7, 2015

Financial Exploitation of an Elderly Person or a Person with a Disability

Effective January 1, 2016, the Illinois Criminal Code will be amended to include a new crime called "financial exploitation of an elderly person or a person with a disability." The new crime is a Class 4 felony if the value of the property is $300 or less and goes up to a Class 1 felony if the value is greater than $50,000.  

The new statute also creates a civil cause of action with the same name. The civil cause of action is available whether or not the defendant has been charged or convicted of a criminal offense under this section.  The civil cause of action provides for treble damages plus attorneys' fees to the victim or the estate of the victim.

A person commits financial exploitation of an elderly person or a person with a disability when he or she "stands in a position of trust or confidence with an elderly person or a person with a disability and he or she knowingly and by deception or intimidation obtains control over property of an elderly person or a person with a disability or illegally uses the assets or resources of an elderly person or a person with a disability."  

The statute defines "elderly" as someone over 60 years of age. The statute also provides that a person stands in a position of trust or confidence with an elderly person or person with a disability when he (i) is a parent, spouse, adult child or other relative by blood or marriage of the victim; (ii) is a joint tenant or tenant in common with the victim; (iii) has a legal or fiduciary relationship with the victim; (iv) is a financial planning or investment professional; or (v) is a paid or unpaid caregiver for the victim.

The new statute is located at 720 ILCS 5/17-56.

Sunday, October 25, 2015

Child Representatives Enjoy Absolute Immunity

In Davidson v. Gurewitz (October 20, 2015) (here), the Appellate Court, Second District, held that a child representative appointed under section 506(a) of the Marriage and Dissolution of Marriage Act enjoys absolute immunity from malpractice liability.

Pursuant to section 506(a)(3), the trial court appointed Thomas Gurewitz as the child representative of the divorcing parent’s minor child. After the trial court entered the judgment of dissolution, the mother sued Gurewitz for malpractice. The mother claimed that Gurewitz completed his duties as a child representative on October 1, 2012, when the parties entered into a parenting agreement that settled all issues relating to the best interests of the child. The plaintiff further alleged that instead of withdrawing from the case after completing his duties, Gurewitz participated in the trial by cross-examining the plaintiff and making a closing argument. According to the malpractice complaint, Gurewitz’s unauthorized actions resulted in the entry of a judgment “replete and filled with vindictiveness relating to [plaintiff].”

Gurewitz moved to dismiss the malpractice action arguing that it was barred by the doctrine of absolute immunity. The appellate court acknowledged that section 506(a) does not, by its terms, immunize child representatives. But the court determined that the common law affords immunity to court-appointed child representatives. Thus, the Second District aligned itself with the First District’s decision in Vlastelica v. Brend (here), finding that absolute immunity is necessary so that a child representative can “fulfill his obligations without worry of harassment and intimidation from dissatisfied parents.”

Saturday, September 26, 2015

Peter Rogan Will Plead Guilty to Perjury for Lying During a Citation

Peter Rogan was on the wrong side of one of the most famous "collections" cases of all time. I wrote a five-part blog post about Dexia v. Rogan back in 2011. The Dexia case involved more than $100 million and the resulting opinion from the 7th Circuit contained nearly that many tips for commercial litigators. My original post can be found HERE.

I was fortunate enough to attend a seminar given by the plaintiff's lawyers about this case. It was absolutely fascinating. These guys literally traveled the globe to recover Rogan's assets. He had established trusts that were located in multiple foreign countries around the world. His current perjury charges stemmed from his denials under oath about those trusts during a citation to discover assets.

Mr. Rogan was back in the news this week because he finally returned to Chicago after fighting extradition from Canada for the last several years. He is expected to plead guilty to perjury this week and could be sentenced immediately. All "collections" lawyers will smile when the cell door closes behind this guy.

Wednesday, September 16, 2015

Returning Client Papers upon Termination of the Attorney-Client Relationship

Rule 1.16(d) of the Illinois Rules of Professional Conduct requires that a lawyer “surrender papers and property to which the client is entitled” upon the termination of a representation. As recognized in ABA Formal Opinion 471 (2015), the trick is determining the precise papers “to which the client is entitled.” In Opinion 471, the ABA recognized two approaches to the issue: (1) the “entire file” approach which dictates the return of every page of the client’s file unless a specific exception applies and (2) the “end product” approach, which requires surrender of the lawyer’s final product but not drafts or memos reflecting a lawyer’s legal or factual research.

Which approach does Illinois take? In adopting the “end product” approach, Illinois State Bar Opinion 94-13 (1995, affirmed 2010), identified seven categories of documents maintained in the course of representing a client. Opinion 94-13 then applied the “end product” test to each category of documents with the following results.

1.     Documents furnished by the client. Rule 1.15(b) requires that these materials be returned “promptly” upon the client’s request.

2.     Correspondence between the lawyer and client. Rule 1.4(a) entitles the client to reasonable access to this correspondence. But since by definition the client has previously received or sent these letters or emails, the lawyer can charge a reasonable amount to provide copies.

3.     Correspondence between the lawyer and third parties. Rule 1.4(a) entitles clients to copies of “significant correspondence” with third parties. If the lawyer previously provided copies of these documents, the lawyer may charge for additional copies. The client is also entitled to copies of “routine administrative correspondence” if the client agrees to pay for the copies.
                                                                                                                                                                  
4.     Pleadings, briefs, and other documents filed with a tribunal or agency. Rule 1.4(a) entitles clients to copies of “significant” pleadings and other filings. Although a lawyer is not required to provide routinely filed papers such as service certificates, a client is entitled to routine filings upon reimbursement of reproduction costs.

5.     Contracts, wills, corporate records, and similar documents. Rule 1.4(a) entitles a client to the final version (not drafts or working copies) of these documents. If the client received copies of the documents during the course of the representation, the lawyer may charge a reasonable sum for supplying additional copies.

6.     Administrative materials such as memos concerning conflicts, a client’s credit status, and time records. These documents are usually prepared for internal use and so are not relevant to the status of a client’s case. Thus, neither Rule 1.4(a) nor Rule 1.15(b) requires production of these administrative materials.

7.     Notes, drafts, internal memos, and legal and factual research. Illinois Opinion 94-13 concludes that since these items are the property of the lawyer, not the client, they need not be produced.  

Of course, an Illinois lawyer is free to supply all documents of whatever type or category to a client and many lawyers do so.

Tuesday, August 4, 2015

50 Cent is Broke

As most of you know, Curtis James Jackson, III a/k/a 50 Cent filed Chapter 11 bankruptcy on July 13, 2015. He filed what's commonly known as a skeleton petition, which is a bare-bones filing used to get a case on file quickly and which does not contain the required disclosures regarding assets and liabilities. He then filed a motion to extend the timeline to file his actual disclosures, which was granted. On August 3, 2015, he finally filed the rest of his schedules.

To make a long story short, he was almost $8M underwater on the day he filed bankruptcy. I have attached the relevant documents below. Here is a brief explanation of the interesting documents: Schedule A contains his real estate holdings; Schedule B contains all of his other personal property and assets; Schedule D lists the mortgage on his house; Schedule F lists all other unsecured debts, except child support; Schedule I lists monthly income; and Schedule J lists monthly expenses.

Here are the highlights:

  • Total Assets: $24,823,899.18
  • Total Debts: $32,509,549.91
  • Monthly Income: $184,969.58
  • Monthly Expenses:  $108,000
  • Cash in the bank: $10,554,486.13
  • Ownership interests in his companies: $4,412,712.24
  • Total value of his automobiles: $500,618
  • Monthly child support: $14,600
  • Monthly household expenses/utilities: $72,000
  • Monthly meals and entertainment: $3,000
  • Monthly wardrobe: $3,000

Here are the complete schedules. Take a look and let me know if you have any questions about anything in here.

Saturday, August 1, 2015

Amendments to Illinois Pro Hac Vice Rules

The Supreme Court of Illinois amended Rule 707 (renamed as Permission for an Out-of-State Attorney to Provide Legal Services in Proceedings in Illinois) and made related amendments to Rules 756(a) and (a)(1) and 718(e) and (f), all effective for appearances filed in proceedings on or after July 1, 2013. The amendments do not require any action by an out-of-state attorney who obtained permission to enter an appearance in an Illinois proceeding prior to July 1, 2013.

Amended Rule 707 permits an out-of-state attorney to enter an appearance in a proceeding in Illinois before a court, a court-annexed alternative dispute resolution body, or a agency or administrative tribunal of the State of Illinois or of a local government unit, if the attorney: 
  • meets licensure and other eligibility requirements
  • associates with an Illinois attorney who files an appearance in the proceeding
  • files a verified Statement with the tribunal

No order of the tribunal permitting the appearance is required. However, the attorney must serve the verified Statement on the ARDC, register annually with the ARDC, and pay fees to the ARDC.

Amended Rule 707 does not affect the longstanding practice under which an out-of-state attorney authorized to practice law in another United States jurisdiction is permitted to provide legal services at a deposition in an Illinois proceeding without need of separate Rule 707 permission, if the out-of-state attorney is assisting an attorney whose appearance in the proceeding is authorized, regardless of the location of the deposition. The out-of-state attorney is subject to the disciplinary jurisdiction of the Supreme Court of Illinois (Supreme Court Rules 751(a), 752(a) and (b), 779(a) and Rule 8.5 of the Illinois Rules of Professional Conduct). The longstanding practice is consistent with Rule 5.5 of the Illinois Rules of Professional Conduct. This practice does not permit an out-of-state attorney to file an appearance or to provide legal services before the tribunal, including the filing of any pleading, motion, or other document,  without obtaining Rule 707 permission.

Click here for instructions for a Rule 707(d) statement and for a listing of fees and requirements.

Friday, July 17, 2015

Donut Fridays

The South Carolina Bar Ethics Advisory Committee has issued an opinion (here) approving a law firm's weekly delivery of a box of donuts to banks and real estate agencies that refer clients to the firm. The boxes also contain beverage "koozies" bearing the firm's name and a coupon for $50.00 off a consultation or real estate closing. The Advisory Committee found that Rule 7.2(c) of the South Carolina Rules of Professional Conduct governed the situation. Like Illinois Rule 7.2(b), the South Carolina rule prohibits a lawyer from giving "anything of value to a person for recommending the lawyer's services." According to the South Carolina opinion, as long as the weekly donut boxes were delivered regardless of whether the recipient had referred clients to the firm that week, Rule 7.2 was not violated. A violation would occur, however, if delivery of the donut box was contingent on referrals to the firm.

For large sections of suburban Chicago such a transparent advertising ploy offering “koozies,” discount coupons, and donuts simply would not work. In those communities the box would need to contain "koozies," discount coupons, and kale.

Monday, July 6, 2015

Continued Employment as Consideration for Postemployment Non-Compete Clauses

McInnis v. OAG Motorcycle Ventures, 2015 IL App (1st) 130097 (here), provides valuable insight concerning the enforceability of restrictive covenants in employment contracts. The appellate court began by summarized the requirements for an enforceable restriction on an employee’s future employment, namely, that the restrictive covenant is (1) ancillary to a valid contract, (2) supported by adequate consideration, and (3) reasonable.

Moving to the heart of the matter, the court evaluated the adequacy of the consideration supporting the restrictive covenant in McInnis’s employment contract with OAG. The court recognized that employment for a substantial period of time after initiation of an at-will employment agreement can be sufficient consideration. But the court also noted that Illinois case law appears to require at least two years of continuous employment to permit a finding of adequate consideration. Since McInnis had been employed by OAG for only 18 months, the court found the consideration inadequate and affirmed the trial court’s denial of OAG’s motion for a preliminary injunction enforcing the covenant.

The majority opinion in McInnis holds that for continued employment standing alone to constitute adequate consideration, the employment must continue at least two years. Employment for a shorter period is insufficient. The dissent argued that such a “bright-line” test is illogical and unfair and that there is no reason that employment for 23 months should automatically be deemed inadequate consideration to support a restrictive covenant.

The value of the opinion lies not only in its thorough discussion of Illinois cases on the two-year “bright-line” rule but also in its discussion of the split among the federal courts interpreting Illinois law on the issue.

Saturday, June 13, 2015

Proposed Amendments to the Illinois Rules of Professional Conduct

On July 22, 2015, the Illinois Supreme Court Rules Committee will conduct a public hearing on multiple proposed changes to the Rules of Professional Conduct. (The hearing notice is here and the proposed amendments are here).

The proposed amendment to Comment 2 of Rule 1.18, seeks to clarify the circumstances under which a communication by a visitor to a law firm's Web site can transform the "visitor" into a "prospective client." Proposed Comment 2 describes a firm's Web site that merely provides general legal information and sets forth the lawyer's education, experience, and practice areas. E-mailing information to that firm most likely will not transform the visitor into a prospective client. However, if a firm's Web site goes further and specifically requests or invites the visitor to submit information "without clear and reasonably understandable warnings and cautionary statements that limit the lawyer's obligations,” then a submission "likely” will constitute a consultation and establish a prospective client relationship.

ABA Formal Opinion 10-467 (here), suggests that a Web site disclaimer warn visitors that (1) sending information does not create an attorney-client relationship; (2) information sent is not confidential; (3) no legal advice has been given; and (4) the firm will not be prohibited from representing an adverse party. To be effective, the disclaimer must be conspicuously placed and in language understandable to a reasonable person.

Regardless of whether the Supreme Court adopts the proposed amendment to Comment 2, it may be a good time for law firms to check their disclaimers against the requirements of ABA Formal Opinion 10-467. And if the proposed amendment is adopted, it may be appropriate to add to the disclaimer that sending a communication does not create an attorney-client relationship or an attorney-prospective client relationship.

Wednesday, May 27, 2015

Illinois Lawyers Must Now Register Online

Amended Illinois Supreme Court Rule 756, effective June 1, 2015, requires all attorneys to register annually online.  Paper registration is no longer accepted.

As part of the yearly registration process, new Rule 756(g) also requires that lawyers provide the Attorney Registration and Disciplinary Commission with the following information (1) an address, email address, and telephone number; (2) a residential address; (3) a list of other states in which the lawyer is licensed to practice law; (3) the type of entity at which the lawyer practices, the number of lawyers in that organization, the lawyer’s principle areas of practice; and (4) whether the “organization has established a written succession plan.” The information required by (2)-(4) above will remain confidential.

Amended Rule 756 is here and the Supreme Court’s press release announcing the Rule change is here.

Thursday, May 14, 2015

Limited Scope Representation Retainer Agreements

Illinois has recognized limited scope representation for a long time. In 1983, an Illinois State Bar Association opinion (here) approved the preparation of pleadings for a pro-se litigant in a dissolution of marriage proceeding. But the real impetus behind unbundled legal services came with the adoption of Rule 1.2(C) of the Illinois Rules of Professional Conduct in 2010. Rule 1.2(C) specifically authorizes the provision of discrete legal services: “A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.”

Several sample limited scope retainer agreements are available. The Chicago Bar Association offers one here. The ABA provides templates here. These and other sample agreements nicely define the scope of representation through a “check-the-box” format. But the forms do not directly address the requirement of Rule 1.0(e) that to obtain informed consent a lawyer must explain the “material risks” and “reasonably available alternatives” to the limited scope representation. While each case has its own particular risks and alternatives, it seems that the usual alternatives to be discussed include (1) the client handling the entire case without counsel; (2) full representation by counsel; and (3) the possibility of representation by a legal aid or pro bono attorney. Material risks might include that the lawyer’s factual and legal investigation will not be as complete as when the lawyer provides full representation and that the client’s lack of understanding of laws, rules, and court procedures may adversely affect the client’s ability to introduce evidence; explain his position to the court; present and respond to pleadings, notices, and motions; understand court rulings; and properly evaluate settlement offers.

Best practices would seem to dictate that the limited scope retainer agreement contain at least a summary of the alternatives and material risks discussed with the client.


Friday, May 8, 2015

Can a driver legally make a u-turn to avoid a DUI checkpoint?

Criminal defense attorney Samuel Partida, Jr. publishes a tremendous criminal law blog and podcast located at Illinoiscaselaw.com. He's also a great follow on Twitter (here). 

One of last week's podcasts analyzed whether a police officer would have reasonable suspicion to make a traffic stop if a driver made a u-turn to avoid a DUI checkpoint. The podcast was inspired by the Illinois criminal court case People v. Timmsen, 2014 IL App (3d) 120481

The answer may surprise you. I don't practice DUI or criminal law, so I don't know how this typically plays out in the real world, but I'd be willing to bet that 100% of the people who try to avoid checkpoints get pulled over even though the vast majority should not.  

Samuel's podcast is timely in light of the article in this morning's Tribune about DUI checkpoints (here). It turns out that the large majority of roadside checkpoints are conducted in areas populated mostly by minorities, whereas predominately white communities actually have higher rates of drunken driving accidents and fatalities. The Tribune article states that Chicago's policies regarding the location of DUI checkpoints probably violate federal guidelines. I'd be very interested in a Tribune investigation into improper traffic stops for legal u-turns in front of roadside checkpoints. 

Anyway, Samuel is blogging and podcasting about plenty of other fascinating issues for criminal law practitioners. His website is also approved for MCLE credit by the Illinois Minimum Continuing Legal Education Board, so if you still need any CLE hours check out his website here.  

Tuesday, May 5, 2015

That didn't take long.

A class action lawsuit was filed today against Manny Pacquiao and several of his promoters for failing to disclose the fighter's alleged shoulder injury prior to the fight. The complaint alleges fraudulent concealment and violations of Nevada's consumer fraud act. The plaintiffs allege that defendants committed deceptive trade practices when they failed to disclose a material fact in connection with the sale of goods or services. 

I'm not too sure this one is going to fly. I don't think it was material whether Manny's shoulder was at full strength. If Manny was going to fight, everyone was still going to purchase the pay-per-view. But maybe if he would have disclosed the injury, the boxing commissioner would have cancelled the fight and everyone would have got their money back. I don't know. 

The complaint also cites a section of the Nevada statute which prohibits "false representations" in consumer transactions. I saw other news reports today that the Nevada Athletic Commission is considering perjury charges against Pacquiao for failing to disclose the shoulder injury on a pre-fight medical questionnaire. That count may have a little more traction if Pacquiao's people did sign a document under oath. However, I still think this lawsuit fails because the general public was not privy to that medical questionnaire and could not have relied upon it when deciding to purchase the pay-per-view. As usual, I will continue to monitor this case and I will keep you apprised of any interesting developments.

Tuesday, April 28, 2015

Disparaging the Courts: One Pro Se Litigant and One Federal Judge at a Time

On April 23, 2015, Mike Huseman posted an interesting motion filed by a pro se litigant in a Georgia federal court. The motion titled, “To F*ck This Court and Everything that it Stands For,” adds insult to injury by referring to the judge as, “you old, IMPOTENT geezer.” Mr. Huseman opined that the motion warranted a stiff contempt sentence. And it’s hard to argue with him especially in light of the outrageous statements in the motion. But let me offer some mitigation based on the most comparable situation that I could find. That situation involved another federal judge. But in this instance the judge was the offender, not the victim. Federal district court judge Richard G. Kopf criticized the Supreme Court’s Hobby Lobby decision in his blog, “Hercules and the Umpire” (here). After blogging that the Court’s decision “looks stupid and smells worse,” the judge concluded his post with, “it is time for the Court to stfu.” A link to the Urban Dictionary explained that “stfu” is an acronym for, “shut the f*ck up.” Now, some might argue that a motion and a blog are not comparable. I agree. The blog post is worse.

First, the pro se motion was directed at a single judge whereas the blog post was directed at nine judges. Second, the Georgia motion was directed at the lowest level federal judge while the blog post was directed at the country’s highest ranking judges. Third, no one with the possible exception of a judge’s law clerk reads pro se motions. On the other hand, “Hercules and the Umpire” is a popular blog read by thousands. (The Hobby Lobby post elicited 314 comments.) Fourth, the federal judicial code requires judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  No similar ethics rule binds pro se litigants. Fifth, the pro se motion, in effect, states that the court is worthless. Well, everyone is entitled to their opinion. But the federal judge’s blog post not only questions the integrity of the Court but goes further and demands that the Justices not exercise their God-given rights guaranteed by the First Amendment.

So, on balance, the pro se litigant probably should not receive worse punishment than the judge who authored the blog post. And yes, that would be no punishment.      

Monday, April 27, 2015

Motion for Fist Fight

In keeping with last week's theme regarding outrageous motions, I had to repost this classic motion from Montana in 2006.

Attorney Kirk Krutilla represented a criminal defendant who had stabbed another man to death. He was asserting self-defense. He claimed that the decedent was actually the aggressor who was beating up the much smaller defendant. In order to defend himself, the defendant pulled out a knife and killed the larger man.

Attorney Krutilla interpreted the State's prosecution of his client as an endorsement of decedent's bullying of a smaller and weaker person. So, he filed a motion seeking to give the prosecution team a chance to enforce their principles, i.e. "the brutal humiliation and beating up of weaker human beings." 

He requested a court order allowing a fist fight between himself and his co-counsel against the two prosecuting attorneys. 

The prosecution's response was perfect. They argued that they "could acquit themselves respectably if it were necessary to settle any part of this matter by means of a physical contest," but, nonetheless, they respectfully requested that the motion be denied. Here is the motion. 

Thursday, April 23, 2015

Motion to F*ck This Court and Everything that it Stands For

This motion has been making the rounds on the legal blogs this morning. It was filed on Monday in a federal case in the Northern District of Georgia. I've seen some disrespectful things from pro se litigants (and lawyers) before, but this takes the cake. Just wow. There is so much stuff in here. What is the longest someone can be jailed for contempt? Because this lady needs a maximum sentence. 

I don't think the judge will allow this type of behavior to go unpunished. I just subscribed to this PACER docket so that I can see what happens next. I'll keep you apprised of any developments. 

Thursday, March 26, 2015

The Estrays and Lost Property Act

The Estrays and Lost Property Act (here) is pretty interesting. I stumbled across it last week while doing other research. I quickly dusted off the Black's Law Dictionary for the definition of estray:
estray (e-stray), n. 1. A valuable tame animal found wandering and ownerless; an animal that has escaped from its owner and wanders about. 2. Flotsam.
Then, of course, I had to look up flotsam:
flotsam (flot-səm), n. Goods that float on the water's surface after being abandoned at sea.
This all makes sense because Section 1 of the Act says that "Any horses, mules, asses, cattle, swine, sheep or goats found straying, the owner thereof being unknown, may be taken up as estrays in the same manner as provided for lost goods." 

Also, Section 21 of the Act says that "Any raft, timbers or plank found floating adrift on any water course within the limits or upon the borders of this State, the owner thereof being unknown, may be taken up in the same manner as provided for lost goods."

So, if both estrays and flotsam are treated as if they are lost goods, the question becomes how exactly should lost goods be treated. It turns out that the Act effectively outlaws the ancient playground theory of "finders keepers, losers weepers." 

Section 27 of the Act provides that "If any person or persons find any lost goods, money, bank notes, or other choses in action, of any description whatsoever, such person or persons shall inform the owner thereof, if known, and shall make restitution of the same, without any compensation whatever, except such compensation as shall be voluntarily given on the part of the owner." 

If the owner is not known, and if the value of the lost property is more than $100, the Act requires the finder to file an affidavit in the circuit court that contains a description of the found property. The court shall then enter an order stating a description and the value of the property. That order shall be "transmitted to the county clerk to be recorded in his estray book," and also filed in the office of the county clerk. 

After the county clerk receives that order, the county clerk shall publish notice in a public newspaper for three consecutive weeks. If the owner does not claim the property within one year of publication, ownership vests in the finder. A very cumbersome process, but the Act provides liability for double the value of the property if the finder sells, trades, destroys or otherwise disposes of the found property without complying with the Act.

Lastly, I found it odd that Section 27 includes "choses of action" in the list of property that could possibly be found in this state causing them to become subject to the terms of the Act. In order to try to make sense of this, I went back to the Law Dictionary:
chose in action. 1. A proprietary right in personam, such as a debt owed by another person, a share in a joint-stock company, or a claim for damages in tort. 2. The right to bring an action to recover a debt, money, or thing. 3. Personal property that one person owns but another person possesses, the owner being able to regain possession through a lawsuit.
Oh ya, that's right. A proprietary right in personam. I can't tell you how many times I have been walking down the street, something catches my eye, and I've said to myself "well look at that...there's a chose in action on the ground."

Saturday, March 21, 2015

The Illinois Gender Violence Act

Last December, a doctor who practiced in Yorkville and Naperville was arrested on charges of criminal sexual assault. The Kendall County State's Attorney's Office alleges that the doctor inappropriately touched or fondled several female patients between 2012 and 2014. Kendall County detectives are looking for additional victims.

The victims of the sexual assaults are entitled to damages from the offending doctor, and depending on the circumstances, may also be entitled to damages from the hospitals and clinics that employed the doctor. Obvious theories of common law recovery include sexual battery, assault, and intentional infliction of emotional distress, among others. 

These victims, however, should not overlook the Illinois Gender Violence Act (the "Act"). The Act provides for a private cause of action for anyone who has been subjected to gender-related violence. Gender-related violence is defined as "a physical intrusion or physical invasion of a sexual nature under coercive conditions satisfying the elements of battery under the laws of Illinois, whether or not the act or acts resulted in criminal charges, prosecution, or conviction." 

Victims of gender-related violence may bring a civil action for damages, injunctive relief, or other appropriate relief. In an action brought under the Act, the court may award actual damages, damages for emotional distress, or punitive damages. A judgment may also include attorney's fees and costs.

If anyone has questions about the applicability of the Illinois Gender Violence Act, please do not hesitate to send a confidential email HERE.  

Friday, March 20, 2015

Appellate Court Reflects on Exculpatory Clauses

In Hawkins v. Capital Fitness, Inc., 2015 IL App (1st) 133716 (here), Michael Hawkins sued his health club for negligently installing a wall mirror that fell on him while he was exercising. The trial court entered summary judgment in favor of Capital Fitness because the exculpatory clause in the plaintiff’s membership agreement barred negligence actions against the fitness center. The following provision of the exculpatory clause does appear to exempt Capital Fitness from injuries caused by faulty maintenance of its facilities.
THIS HOLD HARMLESS FROM [sic] AND WAIVER AND RELEASE OF ALL LIABILITY INCLUDES, WITHOUT LIMITATION, (i) INJURIES, DAMAGES OR DISEASES WHICH MAY OCCUR AS A RESULT OF (A) YOUR USE OF ANY FACILITY OR ITS IMPROPER MAINTENANCE, (B) YOUR USE OF ANY EXERCISE * * * EQUIPMENT, (C) IMPROPER MAINTENANCE OF ANY EXERCISE * * * EQUIPMENT OR FACILITIES * * * AND (ii) INJURIES OR MEDICAL DISORDERS RESULTING FROM EXERCISE, OR USE OF EQUIPMENT OR FACILITIES, AT THE FACTILITY * * *  (Emphasis added).

The appellate court acknowledged that “[a] literal reading of the membership agreement reveals that Hawkins released Capital Fitness of all liability from injury, no matter the source, cause, or circumstance.” So, it would seem that the appellate court should have affirmed the entry of summary judgment for the defendant since the plaintiff claimed that the club’s maintenance crew improperly hung the mirror and the disclaimer held Capital Fitness harmless for improper maintenance of the club’s facilities.   
                     
But according to the appellate court, the ultimate question was whether the mechanism causing the injury was a type contemplated by the parties when they executed the membership agreement. Vacating the entry of summary judgment, the court concluded that reasonable minds could differ on whether the mirror-falling incident was an ordinary risk associated with the use of a fitness facility. Presumably, dropping a barbell on your throat constitutes a risk associated with using a fitness club, while a scalding shower, a defective closet door, or an unhinged mirror might not be the type of risk one assumes when agreeing to a fitness center’s exculpatory clause.

Hawkins will aid plaintiffs who assert that a genuine issue of material fact exists as to whether an injury sustained while using a health club or other sports or recreational venue, was caused by a mechanism contemplated by the parties at the time they agreed to the exculpatory clause. The argument against summary judgment is further bolstered by the strict construction of an exculpatory clause against the party who relies on it.

Thursday, March 12, 2015

25 cats is 23 too many.

Today's Westlaw Headnote of the Day:

Twenty-five cats, however cleanly, were twenty-three cats too many, and eviction would lie, should tenant not comply with edict that two were aplenty. Dunbar Paint Supply Corp. v. Hunt, 232 N.Y.S.2d 637 (N.Y.City Civ.Ct., 1962)

Wednesday, February 18, 2015

Local Circuit Court Rules

Last November, the Illinois State Bar Association’s Task Force on Law School Curriculum held a public hearing in Rockford. Participants offered suggestions on how law schools could better prepare new lawyers. Comments were predictable centering on better writing skills and transactional and litigation preparedness. A senior practitioner added that schools should stress the importance of local court rules. And it is true that most lawyers learn the hard way that local court rules vary from circuit to circuit in Illinois.

For example, the local rules for Winnebago and Boone Counties limit briefs and memoranda to 15 pages. DuPage, Kane, DeKalb, and Kendall Counties limit briefs and memoranda to 10 pages, and Lake and McHenry Counties limit opening memoranda to 15 pages and replies to 5 pages. Courtesy copies must be supplied to the judge 7 days before the hearing in DuPage and McHenry Counties but only 5 days prior to the hearing in Lake County. Lake County uniquely requires that copies of cited out-of-state opinions be supplied to the court.

Southern Illinois University School of Law posts what it describes as links to “Illinois Circuit Court Rules on the Internet.” At one time the list was a great resource. But today it is so hopelessly out-of-date that it is useless. Links to selected northern Illinois local circuit court rules follow.

Cook County (here)
DeKalb and Kendall Counties (here)
DuPage County (here)
Kane County (here)
Lake County (here)
McHenry County (here)
Will County (here)
Winnebago and Boone Counties (here)

Tuesday, February 10, 2015

Governor Rauner Sued the Unions

Governor Rauner came out swinging in a lawsuit against public sector labor unions that is expected to go all twelve rounds. At issue is the section of Illinois Public Labor Relations Act that allows covered employees to refrain from organization and collective bargaining, but still requires those employees to "pay their proportionate share of the costs of the collective bargaining process..." In other words, you don't have to be a member of the union, but you still have to pay the union.  

The Governor's lawsuit alleges that the so-called "fair share" provisions are coerced political speech that violate the First Amendment of the United States Constitution. The lawsuit points out that the collective bargaining process is inherently political in nature because labor unions are some of the most powerful and politically active organizations in the state. The Governor's theory is that "compulsory fees constitute a form of compelled [political] speech" and that employees who do not want to join the unions cannot be forced to contribute money to a political cause with which they do not agree. 

The lawsuit also notes that in fiscal year 2015, general fund pension costs total more than $7.5 billion, which consume 24% of the states general revenues. To highlight the problem, the lawsuit notes that a state government employee represented by the unions who earns an average annual salary of $38,977 over the course of a 26-year government career contributes approximately $40,539 to the State's pension system, but is entitled to receive $821,588 in pension benefits over a twenty-year retirement, plus retiree health care. I'm no math major, but that does not seem right. 

Here is the complaint:


Thursday, January 29, 2015

Landlord-Tenant Law Seminar

I will be speaking at a Landlord-Tenant law seminar in Naperville, Illinois on February 19th. The title to the seminar is Landlord-Tenant Law, Leases, Evictions, Litigation, and Settlement. I will be speaking on Landlord-Tenant Bankruptcy Issues. The seminar's advertisement can be viewed HERE.

Wednesday, January 21, 2015

A $1.5 Billion Clerical Error

In 2001, General Motors obtained a $300 million loan from a group of lenders that included J. P. Morgan Chase Bank. J. P. Morgan obtained a security interest in real estate owned by GM. J. P. Morgan then perfected its security interest by properly filing two separate UCC-1 financing statements, making it a secured lender. 

In 2003, General Motors needed another $1.5 billion. GM borrowed the money from a different group of lenders that also included J.P. Morgan. This time, J.P. Morgan obtained a security interest in a significant portion of GM's equipment and fixtures at forty-two facilities throughout the United States. Again, J.P. Morgan perfected its security interest by properly filing one UCC-1 financing statement, making it a secured lender for purposes of the larger loan.

In 2008, GM decided to pay off the $300 million dollar loan. GM contacted its attorneys at Mayer Brown LLP to prepare documents that would release the liens on GM's real estate once the loan was paid off. Apparently, a partner at Mayer Brown assigned this work to an associate, who then assigned the work to a paralegal. The paralegal obtained a UCC lien search which revealed all three UCC-1s, the two for the $300 million loan and the one for the $1.5 billion loan.

You can probably guess what happened next. Mayer Brown prepared a closing checklist and proposed UCC termination statements for all three liens. The closing checklist and draft documents were circulated to J.P. Morgan and its counsel, Simpson Thacher & Bartlett LLP. No one who reviewed the documents noticed anything out of the ordinary. After the $300 million loan was paid in full, all three UCC termination statements were filed with the Delaware Secretary of State, including a termination statement on the $1.5 billion loan.

In 2009, GM filed bankruptcy. As part of the scramble for assets, the Official Committee of Unsecured Creditors discovered that J. P. Morgan was not secured on the $1.5 billion like it thought it was. The Committee then filed suit to declare J. P. Morgan unsecured. J. P. Morgan argued that the UCC termination statement was ineffective because UCC Section 9-509(d)(1) provides that termination statements are only effective if "the secured party authorizes the filing." J. P. Morgan argued that it could not have "authorized" the filing of the release on the $1.5 billion loan because it did not intend to terminate that security interest, nor did it instruct anyone else to do so on its behalf.

The case eventually made it to the Second Circuit Court of Appeals. The Second Circuit pointed out that what J. P. Morgan intended to accomplish was not the relevant issue when determining whether it "authorized" the filing. The relevant inquiry was what actions J. P. Morgan had authorized to be taken on its behalf. The Court found that J. P. Morgan, directly and through counsel, had plenty of opportunities to review the closing documents. Each time, it consented to the closing checklist and all three UCC termination statements. Therefore, the incorrect UCC termination statement was effective because it was "authorized" by the secured party as required by the Uniform Commercial Code.

The Second Circuit's opinion can be found HERE.  

Sunday, January 18, 2015

DuPage County Register Cited in U.S. Supreme Court Opinion

The Supreme Court opinion released last week in Whitfield v. United States (here) cites articles from the New York Times, the Washington Post, and the DuPage County Register. Pretty good company for a local newspaper. Unfortunately, it will not help the Register’s circulation since the paper went out of business in 1970. (The DuPage County Register and several other weekly papers merged to become the Arlington Heights Herald and later the Daily Herald (here)). The Whitfield case provided the Court with the opportunity to interpret 18 U.S.C. § 2113(e) which enhances the penalty for bank robbery when the offender “forces any person to accompany him” (emphasis added) in the course of committing or fleeing from a robbery.

After a botched bank robbery, Whitfield fled into the home of Mary Parnell. Once inside, he guided Ms. Parnell from the hallway to a computer room, a distance of between 4 and 9 feet. Whitfield argued that the word “accompany” as used in § 2113(e), required substantial movement and that his short trip with Ms. Parnell did not qualify. The Fourth Circuit Court of Appeals disagreed concluding that, “[a]lthough Whitfield required Mrs. Parnell to accompany him for only a short distance within her own home, and for a brief period, no more is required to prove that a forced accompaniment occurred.” The Supreme Court agreed, observing that it is “natural to speak of accompanying someone over a relatively short distance, for example: from one area within a bank ‘to the vault.’” For this proposition the Court cited a story titled, “Addison State Bank Robbed” that appeared in the April 6, 1928, issue of the DuPage County Register. The article stated that the “bandit accompanied [the teller] to the vault.”

Justice Scalia and his clerks deserve credit for finding this 87 year old story in an obscure and defunct newspaper. But with the internet not much stays hidden. The 1928 article is here.