Illinois Criminal Policies and Procedures

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

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

Victim 1 Sues Penn State

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

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

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

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

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

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

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

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

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

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

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

And as explained by a litigation warrior of vast experience:

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

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

brian@moorelawpc.com

www.moorelawpc.com

The other huge case in Will County.

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

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

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

Drew Peterson Juror Questionnaire

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

People v. Drew Peterson: Juror Questionnaire

(h/t to Justice Cafe)

Adversary Proceedings versus Contested Matters

Bankruptcy litigation can be confusing to the inexperienced practitioner.  If you are contemplating litigation in bankruptcy court, you should first determine which rules apply.  Then you should read them.  

There are two terms of art that apply to litigation in bankruptcy court, "adversary proceedings" and "contested matters."  Adversary proceedings (or "adversaries") are separate lawsuits brought in bankruptcy court.  They start with traditional pleadings, including a complaint, motions to dismiss, answer, affirmative defenses, etc.  Then they proceed to discovery and a trial.  Contested matters, on the other hand, are brought by motion and are governed more like state-court motion practice.  

Adversary proceedings are governed by Part VII of the Federal Rules of Bankruptcy Procedure.  Rule 7001 states that the following are adversary proceedings: 

1. A proceeding to recover money or property, other than a proceeding to compel the debtor to deliver property to the trustee, or a proceeding under Sec. 554(b) or Sec. 725 of the Code, Rule 2017, or Rule 6002;
2. A proceeding to determine the validity, priority, or extent of a lien or other interest in prperty, other than a proceeding under Rule 4003(d);
3. A proceeding to obtain approval under Sec. 363(h) for the sale of both the interest and of a co-owner in property;
4. A proceeding to object to or revoke a discharge, other than an objection to discharge under Secs. 727(a)(8), (a)(9), or 1328(f);
5. A proceeding to revoke an order of confirmation of a chapter 11, chapter 12, or chapter 13 plan;
6. A proceeding to determine the dischargeability of a debt;
7. A proceeding to obtain an injunction or other equitable relief, except when a chapter 9, chapter 11, chapter 12, or chapter 13 plan provides for the relief;
8. A proceeding to subordinate any allowed claim or interest, except when a chapter 9, chapter 11, chapter 12, or chapter 13 plan provides for subordination;
9. A proceeding to obtain a declaratory judgment relating to any of the foregoing; or
10. A proceeding to determine a claim or cause of action removed under 28 U.S.C. 1452.

If your proceeding is not contained in that list, it is a "contested matter," which is governed by Rule 9014.  If your issue does not fall into one of the 10 categories listed above, it must be brought by motion.  

It is also helpful to think in these terms if you are defending a proceeding.  You may have a motion to dismiss if your opponent brought a contested matter in an adversary complaint, or vise versa.   

As usual, call me with any questions.  

Lost, Abandoned, or Mislaid Property (Finders keepers, losers weepers?)

The Arizona Appellate Court recently decided an interesting case that analyzed the law of found property.  Robert Spann (the "original homeowner") died in 2001.  His daughter (the "estate") took charge of his house.  The estate sold the house to Sarina Jennings and Clinton McCallum (the "new homeowners").  The new homeowners hired a contractor to do some renovations to the house.  The contractor found $500,000 in cash hidden behind a wall and tried to keep it.  As you can imagine, everybody filed suit against everybody else.      

In explaining who should get to keep the money and why, the Appellate Court analyzed the law of found property.  Found property can be lost, mislaid, abandoned, or treasure trove.  "Lost" property includes property the owner unintentionally parts with through either carelessness or neglect.  "Abandoned" property has been thrown away or voluntarily forsaken by its owner.  Property is "mislaid" if the owner intentionally places it in a certain place and then later forgets about it.  Property is considered "treasure trove" if it verifiably antiquated and has been concealed for so long as to indicate the the owner is probably dead or unknown.

A finder's rights depend on how a court classifies the found property.  Under the common law, it has been said the people do not normally abandon their money; and, accordingly, found money will never be considered abandoned, but rather lost or mislaid property.  The estate, the new homeowners, and the contractor all made claim to the $500,000.  The question was whether the $500,000 was lost or mislaid by the original homeowner because cash can't be abandoned and this money was not antique enough to be considered treasure trove.

The Court found that the money was mislaid property that belongs to its true owner, the estate, as opposed its finder, the contractor and/or new homeowners.  HERE is a link to the opinion.

Don't turn verbs into nouns.

As most of you probably already know, and as I have mentioned in the past, Bryan Garner is a really smart guy.  He is the Editor of Black's Law Dictionary and the author of dozens of books about legal writing and language.  One of his pet peeves (and one of mine now too) is when writers turn verbs into nouns.  Mr. Garner calls this "nominalization" or "burying" a verb.

Basically, you should use action verbs instead of nouns whenever possible.  It will make your writing clearer and easier to understand, not to mention shorter.   Instead of trying to describe the process of nominalization, or how to avoid it, I will give you a list of 20 nominalizations taken from several of Mr. Garner's books, and the action verbs that you should replace them with:

• in violation of - violate
• provide an illustration of - illustrate
• in mitigation of - mitigate
• conduct an examination of - examine
• make an accommodation for - accommodate
• make a contribution - contribute
• provide assistance - assist
• place a limitation upon - limit
• provide protection to - protect
• reach a resolution - resolve
• reveal the identify of - identify
• bring an action against - sue
• are in compliance with - comply
• draw a distinction - distinguish
• made allegations - alleged
• was in conformity with - conformed
• take into consideration - consider
• provide a description of - describe
• have a discussion about - discuss
• reveal the identify of - identify

I am a big fan of cleaner legal writing.  Sentences should be less wordy and briefs should have fewer pages.  Just by quickly glancing at the chart above it is easy to see that one word can often take the place of three or four words.  Good luck and be brief.

Mahoney, Silverman & Cross is Hiring

Mahoney, Silverman & Cross, LLC, a Will County, Illinois AV Rated law firm, seeks an attorney for its civil litigation group with 4-7 years of experience.  Candidate must have an outstanding academic record, exceptional interpersonal and communicative skills and significant experience and demonstrated success in the preparation and trial of civil cases.  Please send your detailed resume (which should describe your professional experience in civil litigation highlighting the types and complexity of cases as well as your experience with discovery, motions, bench and jury trials and appellate review), undergraduate and law school transcripts, and writing sample to: Ms. Julie M. Van Eck, Mahoney, Silverman & Cross, LLC, 822 Infantry Drive, Suite 100, Joliet, IL 60435; 815-730-9500, 815-730-9598 (fax); or via email to jvaneck@msclawfirm.com. All inquiries will remain confidential.