Northern Law Blog

Illinois Supreme Court Clarifies Obstruction of Peace Officer

2012-02-20T07:23:00.005-06:00

In the recent opinion of People v. Baskerville, 2012 IL 111056, the Illinois Supreme Court found that a husband didn’t commit the crime of obstructing a peace officer (720 ILCS 5/31-1) when he allegedly lied to a police officer about his wife’s whereabouts but where the lie didn’t actually impede the officers’ progress in investigating the crime.

In Baskerville, a La Salle County sheriff’s deputy observed a woman driving whose license he believed to be suspended. He followed her home and initiated a traffic stop, but she went inside the house. Her husband then came to the sheriff’s deputy and told him that his wife was not at home and that he was the one that was driving and offered to show him his driver’s license. The husband then went back into the house and after emerging again, told the officer that he could search the house for the wife if he wanted.

Both the husband and the wife were charged with obstructing the police officer based on the false statements and were convicted. On appeal, the appellate court found that that there was a physical act that was required under the statute to obstruct a peace officer and overturned the husband’s conviction on those grounds. However, while the Illinois Supreme Court reversed the conviction, it did so on separate grounds.

The supreme court held that false statements could be considered to obstruct a peace officer and that a physical act is not required, as “applying the dictionary definition, it is evident that 'obstruct; encompasses physical conduct that literally creates an obstacle, as well as conduct the effect of which impedes or hinders progress. Furnishing false information could thus be included within that definition, as it can undoubtedly interfere with an officer's progress". At Paragraph 19 of People v. Baskerville.

The supreme court found, however, that there was insufficient evidence that there was obstruction of a peace officer because the officer was not actually impeded. While the husband initially falsely denied the wife was in the house, he later gave the officer consent to search the house, though the officer did not do so. The Supreme Court found that because of the consent to search the house, the officer was not actually impeded and overturned the conviction.

Illinois Supreme Court Confirms Squad Car Video from DUI Arrest is Discoverable Under Schmidt

2012-02-14T16:11:00.014-06:00

For attorneys working in misdemeanor courtrooms, discovery is always an amorphous concept. Unlike felony discovery, which follow Illinois Supreme Court Rules 411-417, misdemeanor discovery is limited to a few statutes and due process requirements. In People v. Kladis, 2011 IL 110920, the Illinois Supreme Court directly addressed whether squad car videos are discoverable by the defendant in a DUI proceeding.

In Kladis, the defendant made a written notice five days after her DUI arrest. The request included the squad car video from the related stop. At her first appearance, the defendant also made an oral request for the squad car video. Almost 45 days after the DUI arrest, the state tendered a letter to the defendant noting the squad car video had been destroyed pursuant to departmental policy, which automatically deleted videos 30 days after their creation.

The trial judge sanctioned the state for the destruction of the squad car video. As a sanction, the trial judge would not let the officer testify about the occurrence during which the video was running.

In its ruling, the court looked to People v. Schmidt, 56 Ill.2d 572 (1974) and noted that defendant's are entitled to the following materials:

List of witnesses. 725 ILCS 5/114-9.
Written confessions and witnesses who witnessed written or oral confessions of defendant. 725 ILCS 5/114-10.
Exculpatory evidence. Brady v. Maryland, 373 U.S. 83 (1963).
Reports prepared by the prosecution's witnesses for impeachment purposes. People v. Cagle, 41 Ill.2d 528 (1969).

In Kladis, the Illinois Supreme Court added squad car videos to discoverable items under Schmidt. 2011 IL 110920 ¶ 28. In so holding, the Court noted that squad car videos further the courts' truth-seeking process. Id. Squad car videos are an "integral part" of traffic arrests, and they "objectively document[] what takes place." 2011 IL 110920 ¶ 29. They both help the state prove their case and help defendants decide to take pleas or litigate their claims of innocence.

For attorneys practicing in these courtrooms, they must make these demands for videos early and often—create a record by filing a motion for discovery, issue a subpoena to the arresting agency, and make a demand on the record for these materials.

Illinois Gets Tough on Wage Theft

2012-02-10T14:02:00.003-06:00

Illinois Gets Tough on Wage Theft

Illinois amended the Wage Payment and Collection Act (“IWPCA”) to give employees new powers and protections when an employer fails to pay an employee her “final compensation” or otherwise violates the IWPCA (other provisions specify when wages must be paid, what deductions are allowed, and what records must be kept).

The IWPCA requires employers to pay a departing employee all final compensation owed no later than the next scheduled payday. “Final Compensation” includes everything the employer owes the employee for “wages, salaries, earned commissions, earned bonuses, and the monetary equivalent of earned vacation and earned holidays, and any other compensation...”

The amendments to the IWPCA give the employee added rights and powers including to:
· Pursue more individuals for personal liability through a broader definition of employer
· Go straight to court without first filing a claim with the Illinois Department of Labor (“IDOL”)
· Bring a case as a class action
· Recover reasonable attorney’s fees if she prevails
· Obtain additional damages of 2% per month of the amount not paid
· Receive a penalty from the employer of 1% per day if the employer fails to pay the court ordered amount within 35 days of the order
· Sue for retaliation if an employer discriminates against an employee for making an IWPCA complaint and recover her damages, costs, and reasonable attorney’s fees.

The amending act – known as the Illinois Wage Theft Enforcement Act – is available here:
http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=096-1407&GA=96

Submitted by Brian D. Moore, Class of ‘92
brian@moorelawpc.com
www.moorelawpc.com

Westlaw Headnote of the Day

2012-02-09T07:27:00.004-06:00

Neither witness fees nor mileage will be allowed a witness who was too drunk to answer cross-examination. Fritz v. Fritz, 1894 WL 3292 (Pa. Com. Pl. 1894)

Probable Cause in Drug and Alcohol Testing

2012-02-07T09:20:00.003-06:00

A recent decision from the Second District highlights the importance of refusing any blood, breath and urine tests when one is suspected of driving under the influence of alcohol or drugs. In the case of People v. Miranda 2012 IL App (2d) 100769, No. 2-10-0769, the Second District held that the results of a urinalysis test which showed that a driver arrested for drunk driving had traces of cannabis and cocaine in his system was invalid because there was no probable cause to allow for the search warrant after he refused testing.

In Miranda, an Elmhurst police officer pulled over Miranda because he believed that he was intoxicated. The officer noticed an open beer bottle and after some investigation, arrested the defendant for driving under the influence of alcohol. Miranda refused the breathalyzer as well as the blood and urine test. The officer applied for a search warrant in which he said that in “his professional opinion... [defendant was] under the influence of alcohol and/or drugs.” After a search warrant was acquired, Miranda’s blood was taken to be tested for alcohol and a urine sample was taken for drug testing.

The results came back positive for metabolites of cannabis and cocaine. The trial court granted defendant's motion to suppress the evidence as it was taken based on a warrant that lacked probable cause, specifically, that the officer only had probable cause to suspect that driver may have been drunk but there was no mention in the warrant or his affidavit concerning drugs. On appeal, the Second District upheld the trial courts decision to suppress the evidence.

The state additionally argued that the implied consent statute meant that the defendant had no right to have the evidence suppressed. However, the appellate court found that because defendant had refused a drug testing, the state had no right to use the implied consent statute to force the withdrawal of the blood and urine, as he was revoking the implied consent.

This is an important case for any attorney defending a driving under the influence of drugs case because it reiterates the importance of probable cause for the type of testing (alcohol as opposed to drugs) as well as the importance of refusing consent.

Additionally, other drug metabolites can stay in a persons system for days longer than the effect of the drug has lasted. For example, metabolites from cannabis can stay in the system for up to 30 days, sometimes even more, depending on the weight of the individual as well as the quantity of cannabis they are smoking. This means that many people who might have had a joint a week ago would be considered under the influence of drugs, as a positive test result would be considered proof of influence in Illinois because of its strict per se DUI law, even if there is no indication that they were otherwise impaired. The only way for a person who may have drug metabolites in their system to avoid a conviction when a test is likely is to do as Miranda did and refuse the test, then challenge on probable cause grounds if it proceeds anyways.

Most of the public doesn’t realize these rules, as they seem counterintuitive, and may give the police a blood or urine sample when they might test positive. Just as you would advise your clients never to perform field sobriety tests or give a breath sample, they should avoid giving a blood or urine sample when suspected of driving under the influence of drugs and Miranda shows how it can be challenged.

He adopted his adult girlfriend!!

2012-02-01T08:08:00.002-06:00

Check this story out! This is one way to shield assets. I'd be nervous that the girlfriend would take off with the money after the litigation! http://www.sun-sentinel.com/news/palm-beach/wellington/pb-john-goodman-adopts-girlfriend-20120131,0,3385741.story

NIU Networking Party: Feb 1st 5:30 to 7:30

2012-01-25T14:05:00.002-06:00

The DuPage County Bar Association is hosting a networking event with NIU-COL Students at Pizza Villa in DeKalb! Please come out and share your professional experiences and help these students see the possibilities. Contact Sue Makovec of the DCBA to register. smakovec@dcba.org, or by phone at 630-653-7779.

Submitted by Brian D. Moore, Class of '92
www.moorelawpc.com

Defining Fraud in Litigation

2012-01-21T17:13:00.002-06:00

I have been working on several cases involving fraud over the last couple of months. Fraud takes many shapes. There are an endless number of ways to cheat someone out of money. The facts of two cases are never really the same. But they all end in the same way -- someone loses money.

There are also an endless number of ways to sue for fraud, or so it seems. The first question is what type of relief does the plaintiff want. Of course, the plaintiff wants money. Lots of it and punitive damages. But will money be enough to compensate for the fraud? And is there enough money available, or are you dealing with a judgment proof defendant?

Depending on the specific facts of the case, there are dozens of remedies other than money damages that are available to victims of fraud. Contracts can be rescinded or reformed. Fraudulent transfers of property can be set aside. The court can grant preliminary or permanent injunctions. The court can prevent a bankruptcy discharge. The court can impose a constructive trust on assets in the hands of third parties.

No matter what relief you seek, you will then have to prove that fraud occurred. For that, you need a definition of fraud. The case law interpreting fraud takes many different paths because of all of the remedies available, so there are dozens of definitions and elements in the case law. The defendant will want to define fraud as strictly as possible. But don't let the defendant frame the case in terms of the five-part test for a preliminary injunction or the four-part test for a constructive trust, for example.

It is best to keep it simple. Defining fraud as broadly as possible allows you to keep your options open regarding your damages. I came across two good definitions recently. Here they are:

Fraud is a generic term, which embraces all the multifarious means which human ingenuity can devise and which are resorted to by one individual to gain an advantage over another by false suggestions or by the suppression of truth. No definite and invariable rule can be laid down as a general proposition defining fraud, and it includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated. McClellan v. Cantrell, 217 F.3d 890, 894 (7th Cir. 2000);

and,

There is no general rule for determining what constitutes fraud. The existence of fraud depends on the particular facts of each case. Generally, fraud has been held to mean "anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust or confidence resulting in damage to another." Carey Electric Contracting, Inc. v. First National Bank of Elgin, 74 Ill.App.3d 233 (2d Dist. 1979).

If you have a fraud case, I would try working one of these into either your response to defendant's motion to dismiss, or your motion for summary judgment. Most cases would be easy to prove if either of those were the standards.

The Village of Plainfield v. Michael W. Huseman

2012-01-19T16:06:00.004-06:00

A couple of days ago, I was pulled over for speeding while I was on my way to court. Considering that anything I say on this blog can and will be used against me in a court of law, I don't think that I was actually speeding.

Anyway, as soon as the officer asked me for my license and registration, I politely informed him that I was an attorney and that I was on my way to the courthouse. He was not impressed. Nor was he aware, apparently, of my privilege from arrest in these situations.

I knew, however, that I had just invoked my privilege so I did not argue any further with the officer. I just waited patiently in my car while he walked back to his car. I was actually hoping that he would write me a ticket, which he did. He then came back to my car, handed me my ticket, and explained my options regarding paying the ticket by mail or appearing in court. I didn't mention it to him, but I knew at that time that I would choose the later as opposed to the former.

When I got back to the office, I dusted off the old Illinois Criminal Code of 1961. Just as I remembered, there is a statute titled "Persons Exempt from Arrest." This law applies to electors during their attendance at election, senators and representatives during the session of the General Assembly, members of the militia during their attendance at musters (wtf?), and judges, attorneys, clerks, sheriffs, and other court officers while attending court and while going to and returning from court. 725 ILCS 5/107-7.

Normally, an officer faced with an attorney's or judicial officer's timely assertion of the privilege from arrest should obtain the requisite information from the one asserting the privilege, make arrangements for the complaint to be issued later against the accused, and promptly permit the accused to go on his way. People v, Lynch, 266 Ill.App.3d 294, 297 (2nd Dist. 1994).

A further review of the case law interpreting the statute shows that if the privilege is violated, a motion to dismiss is the proper way to invoke the privilege. So, if anyone wants to see a copy of my motion, HERE it is. Just don't ask me how much billable time I have into this already. I'm pretty sure just paying the ticket would have cost thousands less. But, as one of my good friends told me a couple of nights ago, I may be "too much of a lawyer."

I will keep you apprised of any developments.

"Your Papers, Please!" - The Second District Appellate Court holds refusing to identify oneself not a violation of the Resisting/Obstructing statute.

2012-01-18T11:48:00.015-06:00

In People v. Fernandez, 2011 Il App (2d) 100473, the Second District Appellate Court tackled the question of whether refusing to identify oneself would run a-foul of the Resisting/Obstructing statute. The Court held that refusing to identify oneself was not a violation of Section 31-1 and reversed the defendant's conviction. In so holding, the Court followed in the footsteps of other court opinions reaching similar conclusions.

In Fernandez, Carpentersville Police responded to a complaint about a movie theater patron. When the officer arrived, the defendant was outside the theater and "visibly intoxicated." The officer requested the defendant's name, and the defendant refused to identify himself. The officer then placed him under arrest and charged him with obstructing under section 31-1 for "refus[ing] to identify himself (name and date of birth) and failed to provide any kind of identification to Officer Acevedo."

Section 31-1 of the Criminal Code makes resisting or obstructing an authorized act of a police officer a class A misdemeanor. 720 ILCS 5/31-1. Since 1968, Resisting or Obstructing required a physical act (e.g., "going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest). People v. Raby, 40 Ill.2d 392, 399 (1968). Since Raby, Illinois courts have grappled with the term physical act.

When issuing its ruling, the Court noted several prior cases which dealt with refusing to provide police with information or refusing to comply with officers. In People v. Weathington, the Illinois Supreme Court held it was not a violation of section 31-1 to refuse to answer booking questions after being arrested. 82 Ill.2d 183, 187 (1980). In People v. Ramirez, the Fifth District Appellate Court held giving a false name was not a crime under section 31-1. 151 Ill.App.3d 731, 735 (5th Dist. 1986) (Since Ramirez, the Illinois legislature created a new crime called Obstructing ID, which makes giving a false name a class A misdemeanor. 720 ILCS 5/31-4.5.)

Finally, the Court noted that the Illinois Code of Criminal Procedure does allow an officer to ask for a name and address during a Terry stop. 725 ILCS 5/107-14. However, the court noted that the Illinois Criminal Code provided no corresponding duty of a suspect to respond to an officer.

The whole opinion can be read here.

Can an Employer make hiring decisions based on an applicant's credit history?

2012-01-13T15:20:00.000-06:00

Illinois' Employee Credit Privacy Act, 820 ILCS 70/1, et seq., became effective on January 1, 2011. That Act makes it illegal for employers to:

Refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of the individual's credit history or credit report;
Inquire about an applicant's or employee's credit history; or
Order or obtain an applicant's or employee's credit report from a consumer reporting agency.

So, in other words, an applicant's or employee's credit history is completely off limits for employment purposes, under most circumstances. The statute provides for a private right of action for anyone injured by a violation of this act. Injured parties can also recover attorneys' fees pursuant to the Act.

It is also worth noting that certain industries are specifically excluded from the definition of "employer," including banks, insurance companies, and law enforcement officials. Also, the statute does not apply if a satisfactory credit history is an established bona fide occupational requirement. In order to determine whether an established bona fide occupational requirement exists, the statute gives a seven-part test, only one element of which must apply.

HERE is a link to the statute.

Cost to take Illinois Bar Exam jumps to $400

2012-01-10T17:46:00.001-06:00

Sorry law students! The Illinois Supreme Court has amended Rule 706 to raise the cost of the bar exam to $400, from $250. (Wait... there's a supreme court rule for that?!?!?!)

The cost of late applications is now $600, up from $500, but they did push back the deadline to apply for the July bar exam to February 15th, from February 1st.

So, now you have two more weeks to work to scrape up some money to take the bar. Good luck!!

How much is one Twitter follower worth?

2011-12-26T12:09:00.000-06:00

If the rightful owner of a Twitter account is found to have been damaged by an adverse party, how much should the account owner be compensated?

There is a lawsuit pending in California Federal Court that might shed some light on the subject. In that case, an employee of a popular mobile phone site, PhoneDog.com, quit his job after nearly four years. While at the company, the employee had amassed 17,000 Twitter followers under the name @Phonedog_Noah.

After leaving the company, the man changed his Twitter handle to remove any reference to his former employer, but he kept all 17,000 followers. Eight months later, PhoneDog sued, saying that the list of Twitter followers was their property because it was actually a customer list. PhoneDog seeks damages of $2.50 a month per follower for eight months, for a total of $340,000.

How in the heck did they come up with $2.50 per month? I guess for negotiation purposes you could start with the total settlement demand and then calculate that down to a monthly amount. But this lawsuit was filed last week, so it appears that they are finished negotiating. Now PhoneDog better be preparing for trial. They’re going to have to put forth some evidence as to damages. It will be interesting to see how their expert explains the damages.

I have put this California lawsuit on the list of cases that I am going to try to follow. If I hear anything else about the value of this case, I will let you know. It's an interesting question. I wish my Twitter followers were worth $2.50 per month.

By the way, if you aren't already following @husemanlaw on Twitter, you really need to click HERE now.

Unusual Seventh Circuit opinion gets the point across

2011-12-21T15:18:00.004-06:00

If a picture speaks a thousand words then Judge Posner certainly makes his point clear in a recently published opinion. Published November 23, 2011, the opinion consolidates appeals in two product liability cases for grants of forum non conveniens in multidistrict litigation. In the first sentence, he begins by indicating the court’s concerns about appellate advocacy in the two cases.

The appellant’s attorney (a practitioner from Houston, TX) was criticized for ignoring precedent and it was done quite creatively. Posner wrote, “The ostrich is a noble animal, but not a proper model for an appellate advocate”. He then includes a picture of an ostrich with its head in the sand followed by another one of a man in a suit (presumably a lawyer) with his head in the sand. The lesson (other than that ostriches don't really bury their heads in the sand)? It is right there in the opinion: “When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it.”

Read the whole opinion here

Heather Weir Vaught named Chief Legal Counsel to Speaker Michael Madigan

2011-12-14T16:28:00.001-06:00

I picked up the December 7th edition of the Chicago Daily Law Bulletin and was surprised to see a smiling face that I recognized from law school.

The article was about the current Chief Legal Counsel to Michael Madigan moving on to a different position with the Republican Party. The article also indicated that Heather, who is currently Madigan's deputy counsel, would be promoted to Chief Legal Counsel by the end of the year.

Congratulations Heather!!!!

Does a seller have a duty to disclose that someone has died in a car or house that he is trying to sell?

2011-12-09T15:48:00.000-06:00

I've been reading a lot about dead people recently. Last week I read an article about a woman in Detroit who is suing an auto dealership for selling her a car that smells like a dead body. She claims that the car did not stink last winter when she bought it, but when the weather warmed up in the spring, the odor of death became apparent. She claims that she had the odor tested and it came back positive for human remains. She has sued the dealership for failure to disclose the fact that someone had died in her car. HERE is an article about that lawsuit.

Then, yesterday I read about a guy in Sauk Village, Illinois who was showing a property that he owns to a prospective buyer. When they walked into the basement, they found two dead bodies. HERE is the article from the Chicago Tribune. The real estate agent for that house was quoted in the Tribune as saying that the seller is now required by law to disclose those deaths to new prospective buyers.

I'm not so sure about that. The Illinois Residential Real Property Disclosure Act requires certain sellers of residential property to deliver to the prospective buyer a written disclosure statement as required by the Act. HERE is a link to the written disclosure statement. The form contains 22 questions that must be answered by the seller relating to potential material defects in the property. I don't see anything on that form about dead bodies. Unless the body rotted through the floor, somehow infected the water supply, or otherwise caused some material defect, I don't think that the existence of a dead body in the house is a material defect all by itself.

There is further evidence against a duty to disclose a dead body in the Illinois Real Estate Licensing Act of 2000. That Act says that "no cause of action arises against a licensee for failing to disclose...ii) that the property was the site of an act or occurrence that had no effect on the physical condition of the property or its environment or the structures located thereon." (i.e., a murder or a suicide) 225 ILCS 454/15-20. This statute only limits the liability of the realtor, but if the realtor did not have duty to disclose, it can be argued that the seller does not either.

So, with respect to real estate in Illinois, I don't think that there is any duty for a seller to go beyond the requirements of the Disclosure Act, which does not require the disclosure of a dead body.

And regarding vehicles in Illinois, there do not appear to be any laws on the subject. I think it will come down to the language of the warranty, if any. If you bought the car "as is," I think you're out of luck. This does remind me of a Seinfeld episode however. But I think Jerry's car was just in the shop when it came back stinky. I don't think it was a purchased vehicle that stank. And I don't recall Jerry ever suing anybody because of the odor. So, I guess I'm right. No duty to disclose exists. Have a nice weekend.

The Rich Get Richer. (Sarcasm)

2011-12-07T15:34:00.001-06:00

You will recall that I have been alerting my loyal readers for years about class action lawsuits in which you may be able to file claims. I have written about some of my greatest settlements HERE and HERE.

Well, today I received another check. This case involved the use of credit cards overseas. I heard about it just after I returned from the Philippines last summer. Luckily I used my credit card when I was down there because HERE is copy of my latest settlement check. That's right. Read it and weep.

You will also see at the very bottom, I have been alerted that I may be a member of another class in a second lawsuit involving foreign transaction fees. How much good luck can one guy have?!?!?!

I haven't looked into it yet, but it appears that I may be entitled to another settlement check. Three or four more of these and I'll be able to buy a nice steak dinner!!

When is an Employee's Covenant Not to Compete Enforceable

2011-12-07T13:35:00.001-06:00

The Illinois Supreme Court has clarified when an employee’s promise not to compete with his/her employer is enforceable.

Reliable Fire Equipment Company sued two of its salesmen for violating employment agreements which included covenants not to compete. The salesmen had started their own company which provided services to some of Reliable’s customers. The circuit court found the covenants unenforceable and the appellate court agreed. Reliable appealed.

The Supreme Court begins its analysis by explaining that an employment contract that totally restrains trade is void because it “deprives the public of the industry of the promisor, and deprives the promisor of the opportunity to pursue an occupation and thereby support his or her family” but that a covenant not to compete “will be upheld if it contains a reasonable restraint and the agreement is supported by consideration.”

Recognizing that Illinois courts have failed to consistently apply a three-prong analysis that the Court traces back to 1896, the Court explains that a restraint is reasonable if it 1) is no greater than is required to protect a legitimate business interest of the employer, 2) does not impose undue hardship on the employee, and 3) does not injure the public.

Because lower courts have had the most trouble with the first prong - whether the employer has a legitimate business interest needing protection - the Court examines the many factors on which jurists have relied before holding that such factors are “only nonconclusive aids in determining the promisee’s legitimate business interest” and that the proper test is to consider “the totality of the facts and circumstances of the individual case.” The Court then identifies several important factors to consider including “the near-permanence of the customer relationships, the employee’s acquisition of confidential information through his employment, and time and place restrictions” and explains that no factor is determinative; its importance depends on the facts and circumstances in a given case.

Because the case “was tried under an incorrect theory of law” the Court reversed the judgment and remanded the case for a new trial.

Reliable Fire Equipment Company vs. Arnold Arredondo, 2011 IL 111871

Submitted by Brian D. Moore, Class of ’92.
brian@moorelawpc.com
www.moorelawpc.com

Blue-Rhino Propane Tank Class Action

2011-11-23T17:08:00.000-06:00

Did you purchase or exchange one or more pre-filled Blue Rhino propane gas cylinders in the U.S. between June 15, 2005 and October 11, 2011?

If so, you better sit down. You may be entitled to damages totaling dozens of dollars. To claim your riches, you must submit a claim on or before May 23, 2012.

Details here: www.propanesettlement.com

The NBA hired an expensive lawyer.

2011-11-18T19:14:00.001-06:00

The NBA hired Paul D. Clement to represent it in litigation with its locked-out players. Mr. Clement has argued more Supreme Court cases since 2000 than any other lawyer. He made his 54th appearance before the Supreme Court in October and has another argument scheduled for December.

Mr. Clement typically bills his time in the range of $1,000 per hour, but he has also been known to charge flat fees or limit his fees. For instance, a group of 26 attorneys general hired Clement to represent them in their challenge to Obama's Health Care Reform. It is reported that he has taken their cases at a reduced hourly rate and capped his fees at $250,000 for each State. That's $6.75 million for you folks scoring at home.

Clement also represented the U. S. House of Representatives in defending the controversial Defense of Marriage Act. Mr. Clement spent a relatively small amount of time on that case because his law firm elected to withdraw shortly after getting into the case following an outpouring of criticism by gay rights advocates. I can't tell how long he was in the case, but multiple sources online state that he withdrew "almost immediately" after undertaking representation. Oh ya, and the House of Representatives approved his fee request of $1.5 million.

I wish I could find if he has a cap on his NBA fees, or if he's charging a flat fee. But as well as he is doing, he's still not making Kobe money.

Robo-Signers

2011-11-16T16:35:00.000-06:00

I alerted you foreclosure defense lawyers to the name Linda Green last summer. There was a segment on 60 Minutes back in July that uncovered thousands of foreclosure documents all signed by someone named "Linda Green." They even interviewed former employees of several mortgage servicing firms that said they had signed the name Linda Green to hundreds of documents per day over a long period of time.

Well, today there is an article in the Rockford Register Star that quotes the Winnebago County Recorder as saying that she still sees frequent evidence of robo-signing. She says that Linda Green is appearing less frequently on recorded documents, but there are new names that make her suspicious. The names "Pat Kingston" and "Brian Blaine" are two of those names. The same names appear written in different handwriting and also as employees of different companies. For instance, Brian Blaine has signed affidavits as a Vice President of Chase Mortgage Bank, Washington Mutual Bank, Nations Credit Financial Services Corp., and Indymac Federal Bank.

Keep an eye out for those names! The Register Star article can be accessed HERE.

Sandusky's lawyer has it all wrong.

2011-11-15T16:52:00.003-06:00

The Jerry Sandusky tragedy is fascinating and I have strong feelings on several aspects of the case. I rarely state my opinions as to the strength of high profile cases in the news, even in private conversations with friends and family. I make arguments all of the time, but I never really state my true opinion. My profession requires me to argue positions with which I do not always agree, so in private I try to hone those skills by taking the unpopular or opposing view, just for the sake of argument (it makes for interesting dinner conversations at parties!!). Oftentimes I don't even have a personal opinion. I just make the arguments based on the facts presented, or based on who is paying the retainer. If you asked me whether Casey Anthony should be sued in civil court for the wrongful death of her daughter, I would say "I don't know, who do I represent?"

But for this case, I am going to make an exception. I think he's guilty. The reason I feel so comfortable making that proclamation seven days into a two year process is that Sandusky's attorney, Joe Amendola, went on national television last night and let everyone know that his theory of the case is completely wrong. They're already focusing on the children. Supposedly, they have several alleged victims who will say that the abuse never occurred. He's way off base with his theory of the case however.

This case, ultimately, will not be about children. Children can be manipulated. Their memories can be impeached or even recreated, especially by veteran defense attorneys under the hot lights of cross-examination. This case, however, will be about adults. Independent, third-party, adult witnesses who have already testified under oath in front of a grand jury!! For Sandusky and Amendola to appear on live television last night to proclaim their innocence is completely absurd. If the only witness was a ten year old child with a history of behavioral problems, maybe you proclaim your innocence and beat the kid up on cross to raise reasonable doubt.

But that's not what's going on here. Here we have an independent witness who is a 36 year old assistant college football coach. We also have two detectives who surreptitiously listened to Sandusky spill his guts to the mother of one of his victims. Of course, the defense strategy will be to try to exclude that recorded telephone admission from the trial. Then they'll impeach McQueary's credibility ("You then immediately called the police, didn't you Mr. McQueary?" "WHAT?!?!?! YOU WAITED 10 YEARS TO CALL THE POLICE?!?!!?). So, based on the knowledge publicly available at this point, it may not seem like too much of a stretch for Amendola to think that he can win this case if he has strong doubts about the admissibility of the telephone recording and if he thinks that McQueary is not a credible witness.

But it's way too early for a lawyer who was hired only five days ago to declare that anyone is innocent. Again, we are seven days into a two year process. 35 more victims may come forward next week....with pictures. The police might uncover surveillance video from some random parking lot on campus which shows Sandusky having illicit relations with a poodle. We don't know at this point. Anything is possible. Not even I, a rouge blogger intent on inflaming the masses, can argue for Sandusky on this one. All we do know is that they just committed to a defense that they're going to have to stick with for the next two years. And it's going to take a lot more than one kid recanting his accusations for Sandusky to prevail in this case.

Social Security Numbers on Pleadings Prohibited by new Supreme Court Rule

2011-11-14T14:45:00.001-06:00

A new Supreme Court Rule is effective January 1, 2012. Rule 138 prohibits including a social security number on a pleading or other document filed with the court. If a social security number is required – by law or court order – only the last four digits are to appear on the filing and the filing is to be accompanied by a separate document that includes the full social security number. The rule provides a form for this document which is titled “Notice of Confidential Information within Court Filing.” The court clerk is required to keep the “Notice” separate from the court file and confidential from everyone except the parties to the action.

The comment to the rule explains that it was adopted pursuant to section 40 of the Identify Protection Act (5 ILCS 179/40) which required the Supreme Court to adopt rules to regulate disclosure of social security numbers. The Identity Protection Act was effective June 10, 2010.

Submitted by Brian D. Moore, Class of ‘92
brian@moorelawpc.com
www.moorelawpc.com

Are your insurance rates based on accurate information?

2011-11-14T10:03:00.000-06:00

The Fair and Accurate Credit Transactions Act (FACT Act) was enacted in 2003 and amends the Fair Credit Reporting Act (FCRA), a federal law that regulates who is permitted to access your consumer report information and how it can be used.

The FACT Act entitles consumers to obtain one free copy of their file from certain consumer reporting agencies during each 12-month period. One of the consumer reporting agencies that must give you a free report is C.L.U.E. Inc., which maintains information on all of your insurance claims. If your claims history is inaccurate, this will certainly lead to higher premiums, and may lead to other consequences as well, including cancellation of your policy.

In order to view a seven year history of all of your auto and personal property insurance claims, visit this website: https://personalreports.lexisnexis.com/

You will then click on "Insurance Report." Order both your personal property and auto reports and then set up a free username and password. Within minutes you'll be able to tell if your claims history is accurate. If it is not, there are instructions on the website for disputing the inaccuracies.

Please note that you can also obtain free copies of your employment history and resident history by calling 1-866-312-8075.

Illinois Testamentary Capacity and Will Execution: The Bulletproof Will

2011-11-08T09:50:00.001-06:00

Judge Dudgeon recently spoke to the DuPage County Bar Association Civil Practice Committee on testamentary capacity, undue influence and executing estate planning documents in a talk he titled “Keeping the Vultures Away.” This blog entry contains my notes from that session and any inaccuracies are mine.

Testamentary Capacity: Judge Dudgeon began by reminding attendees of the three requirements for testamentary capacity as found in Estate of Wrigley, 104 Ill App 3rd 1008 (1st Dist., 1982): that the testator have sufficient mental ability to i) know and remember the natural objects of her bounty, ii) comprehend the kind and character of her property, and iii) make disposition of her property according to some plan formed in her mind.

To confirm that these three requirements are met Judge Dudgeon recommended:
• interviewing the testator without family members or friends in the room
• bringing in another attorney to help assess the testator’s mental ability
• developing a list of questions aimed at each of the three requirements
• asking the questions out of any order and repeating some questions
• having a conversation that reveals how aware the testator is of the world around her
• asking what medications the testator takes, why, and when she started taking each
• taking detailed notes that include testator’s answers, appearance, and behavior

Judge Dudgeon then pointed out some warning signs that should cause you to take a closer look at the testator’s capacity:
• family member or third party makes the appointment
• family member or third party wants to sit in on appointment
• testator’s attention wanders
• testator wants big changes to an existing plan
• testator uses charm and/or story-telling to hide her inability to answer

Judge Dudgeon recommended taking confirmation a step further if you have any doubts by getting a medical release from the testator and talking to her doctor(s), and/or having the testator professionally evaluated.

Undue Influence: Judge Dudgeon recommended referring to the relevant Illinois Pattern Jury Instructions on this topic (IPI 200.00 et seq.) The IPI defines undue influence as “influence exerted at any time upon the decedent which causes him [her] to make a disposition of his [her] property that is not his [her] free and voluntary act.” (IPI200.09)

Undue Influence can arise from
• A specific act or conduct evidencing undue influence, or
• The existence of a fiduciary relationship between the testator and her beneficiary where i) the testator reposed trust and confidence in the beneficiary, ii) the beneficiary prepared the relevant document or caused it to be prepared, and iii) the beneficiary gets a benefit from the document greater than others with an equal claim. (see also IPI 200.04)

Judge Dudgeon then pointed out some signs that should cause you to take a closer look at the influence issue:
• Did a family member or third party make the appointment?
• Does this person want to sit in on appointment?
• Does this person hold a POA and/or pay the testator’s bills for her?
• Does this person make the medical decisions for the testator?
• Does this person or his family/children substantially benefit from the new document?

Executing the Will: Judge Dudgeon recommended that when it is time to execute the will you remember what it is the witnesses are witnessing and attesting to: that “1) he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will...” 755 ILCS 5/6-4(a).

Judge Dudgeon recommended explaining these requirements to each witness and asking them to make notes describing why each thought the testator was “of sound mind and memory” and that they saw her sign the document. To give the witnesses information to make their determination Judge Dudgeon recommended having a conversation with the testator in front of the witnesses.

Finally, Judge Dudgeon recommended dictating notes to your file explaining what you did to assure the testator had the requisite capacity and was not subject to undue influence, and which contain forwarding addresses and contact information for the witnesses.

Submitted by Brian D. Moore
brian@moorelawpc.com
www.moorelawpc.com