A man who represents himself has a fool for a client.

Here is today's West Headnote of the Day. This reminds me of a good story from law school:

Evidence at a preliminary hearing that the accused asked the witness "How do you know it was me when I had a handkerchief over my face?" was properly admitted at trial for robbery as an admission. Nance v. United States, 299 F.2d 122 (D.C. Cir. 1962)

When I was at NIU, I worked at the DeKalb County State's Attorney's Office as a Rule 711 intern. I spent about half of my time in the felony division preparing for a murder trial. That case did not go to trial until after I graduated, passed the bar, and was working in private practice. But I still followed the case pretty closely in the newspaper.

The defendant fired several lawyers leading up to trial. The judge eventually allowed him to represent himself. He didn't do too bad, I guess, throughout the course of the trial, but he really blew it during closing arguments.

He stood before the jury and asked them "Please, please do not convict me of these crimes that I have committed."

Oops!

Presumptions in the Law

West's Headnote of the Day

157 Evidence

157II Presumptions

157k53 k. Nature and Scope in General.

Presumptions are the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts. Taufen v. Estate of Kirpes, 230 P.3d 199 (Wash. Ct. App. 2010)

Class Action Lawsuit Over iPhone 4?

I'm sure most of the technophiles out there have heard about the iPhone 4's poor reception and dropped call problems. Maybe some of you have even experienced it for yourself. If you have, you might want to consider contacting the law firm of Kershaw, Cutter, and Ratinoff, LLP. They are investigating a potential class action lawsuit against Apple for the poor reception quality, dropped calls, and weak signal received by the new iPhone 4. More information here.

What Happens If Appellee Does Not File An Opposition Brief?

Steven R. Merican publishes the Illinois Appellate Lawyer Blog. He recently wrote an interesting blog about the appellate court's options when the appellee does not file a response brief.

There will not be an automatic default against the party who failed to respond. It is possible to lose an appeal even though your opponent did not file a response brief. See the full post here.

The Presumptions of Gift vs. Loan

Brad Barnes sued Rose Michalski to enforce the repayment of an alleged loan. Plaintiff's complaint alleged that he lent defendant $27,000 and that she had not repaid the money. Defendant's answer alleged that the money was a gift.

There was considerable testimony at trial concerning the relationship of the parties. Both plaintiff and defendant were swingers. They were both married to other people and the four of them routinely met at their houses, hotels, or certain campgrounds to practice their self-described lifestyle of "swinging."

The appellate opinion spent considerable time examining the presumptions that should have arisen at trial. The court found the law presumes a gift if someone transfers property to his or her spouse or family member. The burden would then shift to the transferor to prove that it was a loan and not a gift.

However, there is no presumption of a gift to a friend, even a close friend. Their apparently is also no presumption of a gift to a swinging colleague. In this case because the parties were not related, the presumption was of a loan. The burden then shifted to the defendant to prove it was a gift. The only evidence offered in support of the gift theory were defendant's own self-serving statements.

Also as there was no written contract, nor was there ever any discussion of the repayment terms when the money was exchanged, defendant argued that plaintiff could not meet its burden in proving that it was a loan.

The court found that the common law does not require plaintiff to prove the "terms of repayment" to obtain a judgment for repayment of a loan. Pursuant to the Restatement of Contracts, if a loan omits the terms of repayment, the court can supply the terms.

14th Hole Alumni Golf Outing

Law Blog Contributors Network in Naperville

Northern Law Blog contributors Mike Huseman, Brian Krause, and Matt Kooperman (far right) network at a DuPage County Bar Association event on Thursday evening on the rooftop patio of the Two Nine Bar in Naperville. Also pictured is Adam Wirtz from the Wirtz Law Offices, LLC (second from right).

Now that is a coincidence.

According to this article from the Washington Post, a Maryland man recently crashed into and injured a retired judge who had spared him jail time in a separate DUI case eleven years earlier.

Foreclosure Mediation in Will County

I just received a press release from the Illinois Supreme Court which outlines Will County's new mandatory mediation program for foreclosure cases. (I am having trouble linking to the press release, but a copy can be found on the Suprem Court's website. A summary of the new local rules is also included below.)

I don't even know where to start. I'll probably post a follow-up this week with my thoughts on the matter. This is for informational purposes only. Oh, and by the way, the plaintiffs have to pay for it... filing fees have increased from $276 to $426.

A Summary of the New Will County Local Rules:

1. Any complaint filed for residential foreclosure would be automatically scheduled for a mandatory pre-mediation conference within 60 days.

2. Along with the summons, defendant borrowers will be given a form explaining the mandatory mediation program. The form will state that the case will be evaluated by an outside mediator for possible loan modification or other resolution. It will also state that if modification is not deemed feasible or if the borrower does not want to save the home, then mediation may still be used to assist the parties in discussing a consent foreclosure in which the lender will waive any deficiency against the borrowers.

3. The form also will advise the borrower to bring certain financial information, and will contain a list of local counseling agencies available to assist borrowers in foreclosure. All financial information will be held in confidence by the mediator and not disclosed to any other party without the consent of the borrower.

4. An independent mediator will determine at the pre-mediation hearing whether the
borrower meets initial criteria of having greater monthly income than expenses in order to qualify for a loan workout or modification. If the borrower does not meet the criteria or does not wish to keep the house, the mediator may seek to determine whether the borrower can deed the property to the lender or consent to a judgment waiving any deficiency judgment against the borrower.

5. If the borrower meets initial criteria for a loan modification or wishes to surrender the property in a consent foreclosure or other arrangement, the mediator will scheduled a mediation conference within 30 days.

6. At the mediation conference, a representative of the lender must appear in person with full settlement authority and participate in good faith in the mediation process. Failure to attend or to participate in good faith will result in sanctions by the court, including possible dismissal of the action. If the borrower fails to appear without excuse, the mediation will be terminated and the matter will be referred back to the trial court.

7. Any agreement will be reduced to writing and signed by the parties and their counsel. The Circuit Court may retain jurisdiction of the case for a trial period. If the borrower fails to successfully modify the loan, or if no agreement is reached, the foreclosure will resume in the Circuit Court.