Northern Law Blog

Free Bankruptcy and Foreclosure Seminar

2013-06-17T13:40:00.001-05:00

I will be presenting a free Bankruptcy and Foreclosure seminar this Friday night, June 21st at 7:00 P.M. at the offices of Intuition Unlimited in Oswego, Illinois. The seminar will last approximately one hour followed by a question and answer session.

Please contact me or Amy Biank at Intuition Unlimited if you would like to attend the Seminar. Thanks.

Time Equals Money

2013-06-13T14:55:00.001-05:00

We have all heard the famous Abraham Lincoln quote, "A lawyer's time and advice are his stock in trade." From that stock in trade, lawyers need to earn enough money to pay the rent, utilities, staff salaries, health insurance, malpractice insurance, bar association dues, student loans, library and legal research costs, postage, office supplies, etc. And then hopefully after paying all of those expenses, there might be a little profit left over.

But the value of one's time seems to be one of the most difficult concepts for young lawyers to grasp. It took me awhile to learn how to leverage my time into money when I was a new lawyer so that I could contribute my fair share to the never-ending onslaught of expenses. I see the same thing from many young lawyers that I know. They do not appreciate the value of their own time.

Except for certain altruistic exceptions, if you are not going to be paid for a task, why would you do it? Wouldn't you rather be at the beach or a ball game? I am approached by clients all of the time who want something for free and then say "I can refer you a ton of business in the future." I usually say, "I won't need a ton of business in the future because if I can't pay the bills next month I won't even be here in the future." I need to get paid now for the work I am doing today. My plumber didn't give me anything for free lately.

I was reading the ABA Law Practice Management Journal a couple of nights ago. There was an article about how to get paid. The author made a great suggestion that I wanted to relay to you guys, but, in my opinion, the author's point was actually the third step in the process of getting paid, so I'll get to it in a second. According to "Huseman on Law Practice Management" there are at least three separate stages involved in getting paid for your time (this blog post does not apply to contingency fee personal injury attorneys).

First is making sure that your time is recorded into your firm's billing software. Every time that you respond to an email on your iPhone or take a quick telephone call and do not record that time somewhere, cold, hard cash evaporates into vapor and diffuses into the atmosphere. If you're doing work on a client's file, whether it is legal research, answering an email, taking a phone call, or reading a letter that you received in the mail, make sure that your time is recorded. The lawyers at my firm record everything on paper and then those time sheets are inputted into our billing software. EVERYTHING that you do EVERY day needs to be recorded on a time sheet or somehow inputted into your billing software.

The next step involves billing the time that you have recorded. The time does not do you any good if it stays cooped up in your bookkeeper's software. You must set it free and transmit it to the client. Here is where you can do a little filtering if needed. Because you have written down EVERYTHING on your time sheets, you may look at the monthly summary and realize that certain tasks either weren't billable or maybe should be discounted because they were duplicative or maybe not entirely necessary when you look back at it. This is the time to make that decision. Don't filter your time during the course of the month. Write down EVERYTHING and then filter your time at the end of the month when you are actually preparing your bill. You still want your client to see the work that you did, even if there is a zero next to it on the invoice. The client will appreciate the effort you put in and the value that he or she received.

The last step in the process of getting paid was the subject of the article that I was talking about earlier. The last step is to actually get paid for your bill after you send it out. Bills don't do much good if they are ignored by the client. Following up is key. It is very easy to for an invoice to get lost in the shuffle of someone's kitchen or home office. A polite reminder from your office to make payment oftentimes does wonders. Here is what the ABA article suggested:

• The firm should have a procedure for tracking the age of receivables and notifying the attorney and the appropriate staff person when the receivable reaches 40 days.

• There should be telephone contact with the client no later than 45 days following the date of the bill. If agreement cannot be reached in that first call, or if agreement is reached but payment is not made, a second call should be made for the purpose of setting up a meeting with the client to reevaluate the relationship.

• The arranged meeting between the lawyer and client should be similar to the intake meeting. The attorney and client should reevaluate the objective of the work, the status of the matter and on what basis it makes sense to go forward. The meeting could end with (1) payment of overdue fees through the use of a credit card or other financing, (2) a restructuring of the fee agreement or a change in the objective or plan going forward due to cost considerations, (3) the replenishing of the fee deposit through the use of a credit card, or (4) a termination of representation.

I have recently implemented this procedure. My staff makes calls at the 45 day mark. In the past, if that did not do the trick, I would have simply withdrawn. Now I intend to sit down face to face and work it out. I'm not looking forward to my first office meeting regarding payment, but I can already tell that I will feel better when it's over. Either my bill will be paid, or I will have some free time to go to the beach.

The 2nd District Appellate Court Needs a Law Clerk

2013-06-10T21:04:00.002-05:00

The IL Appellate Court, 2nd District, seeks a judicial law clerk for Justice Kathryn Zenoff's chambers in Rockford, IL. Applicants should have excellent academic record, superior research, writing, and computer skills. Law review, clerking, practice experience, a plus.

Submit by mail a cover letter, resume (w/ LSAT, GPA, class rank, & bar status), law school transcript, two writing samples, & and three references to Hon. Kathryn Zenoff, 6801 Spring Creek Rd., Ste. 2A, Rockford, IL 61114 AND email to llee@court.state.il.us.

Another Great Golf Outing

2013-06-09T10:45:00.000-05:00

Several of the Northern Law Blog contributing writers attended the 9th Annual NIU-COL Alumni Golf Outing on Friday, June 7, 2013. I didn't take too many photos (I was busy almost winning the "Shortest Drive Award"), but here are some that I did get. If anyone else has any photos, feel free to post them to the Blog.

It was good to see Law Blog regulars Brian Moore and Dexter Evans, as well as many loyal readers and subscribers out at the course. I'm already looking forward to next year!

Mike Huseman and Dexter Evans:

DISCLAIMER: You Have No Legal Rights For Injuries at Your Gym

2013-05-31T16:50:00.001-05:00

Most everyone has or had a gym membership. Some use it more than others. From the small facility down the street to the colossal monstrosities like Lifetime Fitness, fitness centers come in all shapes and sizes, much like the people that frequent them. Regardless of your gym’s size, however, they all have one thing in common. They make their members sign a disclaimer prior to becoming a member. Most people never read these disclaimers. Likewise, most people never consider that they could suffer a catastrophic injury while working out at their gym. Tell that to Sahal Hussein.

In Hussein v. L.A. Fitness, 2013 IL App (1st) (2013), the Illinois Appellate Court examined a disclaimer signed by Sahal Hussein. Sahal signed a fitness contract with L.A. Fitness. He was severely injured when he fell off of an assisted dip/chin machine causing him to strike his head. As a result of the fall, Sahal was rendered a quadriplegic. The fitness contract that Sahal signed contained the following disclaimer:

IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that Member’s use of L.A. Fitness’ facilities, services, and equipment or premises involves risk of injury to persons and Member assumes full responsibility for such risks. Member hereby releases and holds L.A. Fitness harmless from all liability to Member for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member’s person or property, including injury leading to the death of Member, whether caused by the active or passive negligence of L.A. Fitness or otherwise, to the fullest extent permitted by law, while Member is in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities, services, or equipment. Member has read this release and waiver of liability.

Sahal filed suit against L.A. Fitness for his catastrophic injury arguing that L.A. Fitness was negligent in failing to maintain and inspect its fitness equipment and by failing to monitor, supervise, or instruct club members on how to use the equipment. L.A. Fitness filed a motion to dismiss arguing that the disclaimer trumped his personal injury action. The trial court agreed and Sahal appealed.

The Illinois Appellate Court examined whether the disclaimer at issue was valid. First, the court sought to determine whether the disclaimer (exculpatory clause) was enforceable as a matter of law. The court noted that the public interest in the freedom of contract generally allowed the enforceability of exculpatory clauses like the disclaimer at issue. However, if a disclaimer is ambiguous, courts have been reluctant to enforce them. The main question was whether the disclaimer was so vague, general, or broad so that it failed to properly alert the other party of the what legal rights they were signing away.

Applying Minnesota law (where the agreement was originally signed) while also noting its striking similarity to Illinois law, the court determined that the disclaimer was “clear, explicit, and unequivocal.” Id. at 19. The court held that the disclaimer properly identified the range of dangers the fitness member was exposed to, the assumption of that risk, and alerted the member to exercise a greater degree of caution to protect him or herself. Id. The court also rejected Sahal’s public policy argument noting that as a private corporation, L.A. Fitness was under no legal duty to take on Sahal as a member. Id. As such, it “had the right to insist on the terms it deemed appropriate.” Id. Furthermore, the services provided by L.A. Fitness were not so essential to the general public so that public policy mandated that the disclaimer be disregarded. Id. at 18.

Remarkably, disclaimers like these are upheld much more often than they are negated. Even more disturbing is that they can even to apply to someone hurt because of a defect on the fitness club’s shower floor or even if your personal trainer is negligent in the way in which he or she has you perform a particular exercise. What if you are simply walking in the gym and a light fixture falls onto your head? It would seem quite extreme to allow such a disclaimer wipe out your claim under those set of facts. The message to fitness members can easily be gleaned from the court’s decision in the Hussein case. Buyer beware!

What do you think about these disclaimers? Do you think it is fair to allow a corporation to limit its liability even if the corporation negligently causes injury? Or, on the other hand, should freedom of contract allow corporations to shift the risk of harm to its customers?

Jurors Have Questions Too! The New Wave of Jury Participation at Trial

2013-05-13T09:28:00.002-05:00

Anyone that has been keeping up with the Jodi Arias murder trial has seen a rather peculiar and unique participation by the jury throughout the trial, the jury's questioning of witnesses. It is a rather interesting thing. Each juror has the right to submit questions to ask of a witness and in most instances, the judge reads any questions he or she deems appropriate. The witness answers the question just as if one of the attorneys had asked it. Each side can object to the question outside of the presence of the jury and can object to the witness' response just as if the other lawyer had asked the question.

On July 1, 2012, Illinois became the most recent state to jump onto the bandwagon of allowing jurors to ask questions during trial. Before Illinois enacted Illinois Supreme Court Rule 243, jury questions were mandated in other states such as Arizona, Colorado, Indiana, and Wyoming. The benefits in allowing jurors to ask questions at trial are numerous. First, it gives an attorney a snapshot into how his or her case is going and if anything needs to be tweaked in regards to the case theory, presentation of evidence, or overall questioning of witnesses. Additionally, it makes jurors feel like they are more a part of the process and helps alleviate the tendency of jurors to become bored by the monotonous process of trial. Moreover, if a juror is confused by the evidence or a witness' testimony, a juror's question could completely clear up the confusion. Obviously, this would lead to more informed and reasoned verdicts which should be welcomed by all members of the legal profession.

That is not to say that there aren't pitfalls in allowing such questions. More questions lead to longer trials. While it may not matter in a case where there is a plaintiff, a defendant, and one or 2 doctors testifying, cases in which there are a substantial number of witnesses and experts would lead to much lengthier trials. Should that matter? Perhaps not in the criminal justice arena where a person's life is routinely hanging in the balance. Even in the civil arena, shouldn't we strive for jury verdicts which are based upon a juror's full understanding of the issues, the law, and any questions they have during the process? The other potential negative in allowing such questions is that too much emphasis might be placed upon the question of a particular juror. Could a juror's question regarding a red herring issue improperly sway a jury's decision and lead to unjust results? On the other hand, might those questions be asked in deliberations anyway after it is too late for either side to shift the jury's attention back to the main issues of the case?

While relatively new to the legal system, it seems the positives of allowing jurors to ask questions during trial outweigh the potential negatives. Such questions allow jurors to feel more a part of the trial process and at the same provides helpful insight to the attorneys regarding their case presentation at various stages of the trial.

Have you had an experience with jurors asking questions of witnesses at trial? Do you think it is a good practice? Why or why not? All comments are greatly appreciated.

Medical Marijuana in Illinois

2013-05-09T15:40:00.000-05:00

Illinois is very close to becoming the latest state to legalize marijuana for medical use. The Compassionate Use of Medical Cannabis Pilot Program Act passed the Illinois House of Representatives last month. Last week, the Bill passed the Illinois Senate Executive Committee. The Bill will be back before the full Senate on May 14, 2013. (Updates HERE.)

If this Bill becomes law, a whole new industry will emerge overnight. There is a tremendous amount of money at stake. No one is talking about big business's involvement however. The media reports always seem to focus on the cannabis users. Do the patients have legitimate medical issues? Does the cannabis provide legitimate medical relief? Those media reports bore me. I could not care less whether a licensed user of medical cannabis really has a legitimate medical ailment or whether his "symptoms" were an elaborate ruse to obtain a prescription. I am much more interested in the cannabis providers. They're the ones who really stand to gain or lose from this deal. For instance, who is going to grow it? Who is going to sell it? And, most importantly, do those people or companies need a lawyer? (Insert winky-faced emoticon here.)

I've spent the last several days skimming the 211-page Bill. The Bill provides for up to 22 cultivation centers throughout the state. The cultivation centers will be governed by the Illinois Department of Agriculture. The Bill also provides for 60 dispensing organizations to be governed by the Illinois Department of Financial and Professional Regulation. As you can imagine, the application process to be become a licensed cultivation center or dispensing organization is fraught with red tape. For those companies lucky enough to obtain one of the coveted licenses, the renewal and yearly compliance hurdles will be significant. They're going to need teams of good lawyers.

There are plenty of other interesting tidbits in the Bill. For example, the Bill deals with employment and housing discrimination of licensed medical cannabis users, whether the fact that someone is a licensed medical cannabis user can be used against him or her in a child custody hearing (it can't), how licensed medical cannabis will affect the DUI laws, when and where licensed medical cannabis users can "administer their cannabis," etc.

If anyone has any questions about this topic, or any other topic, please send me a confidential email HERE.

The Illinois Humane Care for Animals Act

2013-05-04T11:16:00.001-05:00

The Humane Care for Animals Act (the "Act") provides for criminal and civil penalties for people who neglect, abuse, or otherwise mistreat animals in Illinois. The Act prohibits the cruel treatment and torture of animals. It also requires that animals be given humane care and treatment, adequate shelter, and veterinary care when needed. The Act defines "animals" to include every living creature, domestic or wild, in the state, but does not include man.

Although the Act speaks in very broad terms, it tries to give some clarification. The Act states that "nothing affects normal, good husbandry practices utilized by any person in the production of food, companion or work animals, or in the extermination of undesirable pests." The Act also states that the Illinois Wildlife Code and the Humane Slaughter of Livestock Act shall trump in the event of a conflict. So, theoretically, mice and undesirable pests can still be exterminated, mosquitoes can still be swatted, hunters can still hunt, and chicken and hogs can still be slaughtered for food. And normal, good livestock procedures on farms should not be affected.

The law is not entirely clear, however, because one person's undesirable pests may be another person's desirable pets. And there is not always a clear line between good livestock procedures and poor ones, for instance. Adding to the confusion is that law enforcement officials generally only investigate after receiving a complaint from a neighbor or passerby, who may have ulterior motives, and even then the police are rarely involved. Complaints about an animal's welfare are usually investigated by "approved humane investigators," not the police.

Approved humane investigators can be hired or authorized by the Department of Agriculture. The investigators are usually animal control officers employed by the county or they are employees of non-profit organizations, such as the Humane Society. Either way they're given the power to come onto private property to investigate. They can write tickets and seize animals. If needed, the investigators can seek the assistance of the police or state's attorney. Violations of the Act can be charged as misdemeanors or felonies.

The Act also provides for civil lawsuits against people who commit cruelty to animals. If my dog is maliciously killed or injured by another person, I can sue that person for damages, including damages for emotional distress. I have addressed both topics in more detail in separate posts below.

Criminal liability for violations of the Humane Care for Animals Act

2013-05-04T11:15:00.001-05:00

[This is Part 1 of series about the Illinois Humane Care of Animals Act. The introductory post can be found HERE.]

The Humane Care for Animals Act contains varying degrees of criminal liability. First, the Act outlines duties that all owners owe to their animals. Each owner shall provide each of his animals sufficient food and water, adequate shelter and protection from the weather, and veterinary care when needed to prevent suffering. Failure to provide these basic necessities can result in a Class B misdemeanor for the first offense and a Class 4 felony for each subsequent offense.

The Act also prohibits the cruel treatment of animals. The Act provides that no owner shall beat, cruelly treat, torment, starve, overwork, or otherwise abuse any animal. Nor may any owner abandon any animal where it may suffer injury, hunger, or exposure. Violation of this Section is a Class A misdemeanor for the first offense and a Class 4 felony for each subsequent offense.

There is also a section concerning aggravated cruelty to animals. Aggravated cruelty is an intentional act that causes serious injury or death to an animal. The first offense of aggravated cruelty is a Class 4 felony and subsequent offenses are Class 3 felonies.

The Act also provides for the seizure of animals if there are allegations of improper care, cruel treatment, or aggravated cruelty. There is a procedure to obtain a hearing in front of a judge to determine whether the allegations are true. As I explained in the introductory post, what constitutes proper care and adequate shelter for animals is the subject of much debate. There is also a fine line between the discipline and training of an animal and cruelty. The first step in the this process is usually the seizure of animals. The next step will usually be misdemeanor or felony charges. If you have any questions about potential criminal liability under the Illinois Humane Care of Animals Act, please send me a confidential email HERE.

Civil liability for violations of the Humane Care for Animals Act

2013-05-04T11:15:00.000-05:00

[This is Part 2 of series about the Illinois Humane Care of Animals Act. The introductory post can be found HERE.]

The Illinois Humane Care for Animals Act also provides civil remedies to the owners of animals who have been subjected to harm. Any person who has a right of ownership in an animal that is subjected to aggravated cruelty or torture, as those terms are defined in the Act, may bring a civil action for damages.

Damages may include, but are not limited to, the monetary value of the animal, veterinary expenses, any other expenses incurred by the owner in rectifying the effects of the cruelty, pain or suffering of the animal, and emotional distress suffered by the owner. In addition to those actual damages, the court can award punitive damages of not less than $500 and not more than $25,000 for each instance of abuse. Also, the court can award attorney's fees to the animal's owner.

If your animal has been intentionally harmed by another person, or if you have any other questions concerning the Illinois Humane Care of Animals Act, please send me a confidential email HERE.

The City of Naperville is Hiring

2013-05-01T09:19:00.001-05:00

The City of Naperville just posted two new job openings to their website. One is for a Senior Assistant City Attorney. This is a full-time position. They are also looking for a part-time, Assistant City Prosecutor to work approximately 20 hours per week.

Here is a link to the job postings: http://www.naperville.il.us/employment.aspx

Codilis & Associates, P.C. is Hiring

2013-04-30T10:25:00.000-05:00

Codilis & Associates, P.C. (located in Burr Ridge) is looking to hire a full time associate attorney. The law firm concentrates in representing creditor rights in Foreclosure, Bankruptcy and Real Estate matters. Three - Five Years related Foreclosure experience preferred as well as excellent organizational and attention to detail strengths. Responsibilities will include court calls (am and pm) as well as document review. Full benefits package including medical, dental, and life insurance as well as a 401k plan and time off benefits. Interested candidates should e-mail resumes including salary requirements to HR@il.cslegal.com.

Security for Costs

2013-04-23T23:07:00.004-05:00

Recently, I was in court on the trial date for what I thought was going to be a routine forcible entry and detainer action. I was representing an out of state property owner who was seeking to evict unlawful occupants from his newly purchased home in the suburbs. Opposing counsel failed to show up but had the matter covered by another attorney. Since counsel and her clients were not present, the attorney covering for her asked for a continuance which was denied. When we stepped up, I called my only witness, the property owner, and then I got all the relevant documents into evidence. I have done this numerous and I thought I was going to get an order of possession. However, the attorney proceeded to cross examine my witness and asked him to identify his residence. As stated before, the client was from out of state, but I did not think that was going to be a problem. After identifying his address, the attorney moved to dismiss my case. As support for his motion, he cited 735 ILCS 5/5-101-103. Under these sections, an out of state Plaintiff is required to post a security for costs. This is a very archaic part of the Code of Civil Procedure and it is very rarely used anymore. In fact, the only other place I have seen a document that purports to be a “security for costs” is on the third floor of Dupage Judicial Center. They have an old artifact framed and signed by Abraham Lincoln whereby he was posting security for an out of state client. This rule is a typical example of a rule that once had a relevant purpose but that has now outlived its usefulness. At the time of my trial, I had never heard of this rule. The judge had never heard of it either, and he quickly had to pull it out his copy of the Code and look over the statute. I later learned more about this statute and its application in Illinois case law, but at the time I had no clue how to object to this motion. In fact, according to the case law that I later read, the motion was not timely brought to the court and was thus, not enforceable. But, just from the plain language of the statute the judge had to either dismiss my case or allow me a continuance to file the relevant paperwork. The statute reads as follows:

§ 5-101. Security for costs. In all actions in any court on official bonds for the use of any person, actions on the bonds of executors, administrators or guardians, qui tam actions, actions on a penal statute, and in all civil actions, where the plaintiff, or person for whose use an action is to be commenced, is not a resident of this State, the plaintiff, or person for whose use the action is to be commenced, shall, before he or she institutes such action, file, or cause to be filed, with the clerk of the court in which the action is to be commenced, security for costs, substantially in the following form:

A B v. C D--(Title of court.)

I, (E.F.) enter myself security for all costs which may accrue in the above entitled action.

Dated this .... day of ...., ....

§ 5-102. Approval--Effect of bond. Such instrument shall be signed by some responsible person, being a resident of this State, and be approved by the clerk, and shall bind such person to pay all costs which may accrue in such action, either to the opposing party or to any of the officers of the court in which the action is commenced, or to which it is removed by change of place of trial or appeal.

§ 5-103. Dismissal for want of security. If any such action is commenced without filing such written instrument, the court, on motion, shall dismiss the same, and the attorney of the plaintiff shall pay all costs accruing thereon, unless the security for costs is filed within such time as is allowed by the court, and when so filed it shall relate back to the commencement of the action; the right to require security for costs shall not be waived by any proceeding in the action.

After reading the case law, I found out some important things about this statute. First, a motion to dismiss based on these grounds must be brought at the earliest possible moment. A court should not enforce such a motion when it is brought right before trial. Second, the form identified above in section 5-101 is sufficient and no bond should be required. Basically, the attorney or any other responsible adult in Illinois that is not a party to the case can post security for costs. Third, although still enforced, the court should grant leeway to a party that substantially conforms to the statute and should give leave to the out of state party to file its security for costs. Such filing relates back to the filing of the case. See LEASE PARTNERS CORP. v. R & J PHARMACIES, 768 N.E.2d 54, 329 Ill. App.3d 69, 263 Ill.Dec. 294 (2002).

New Law Seeks to Raise Minimum Injury Insurance Limits

2013-04-11T15:20:00.001-05:00

The State of Illinois is currently debating a bill which would effectively increase the minimum insurance coverage for bodily injury required of drivers in Illinois. Currently, the minimum coverage necessary to keep a driver “legal” is $20,000 per person, $40,000 per occurrence. Senate Bill 1898 would raise the minimum limits to $50,000 per person, $100,000 per occurrence. The bill would also raise the minimum coverage for the destruction of property from $15,000 to $40,000.

Where does Illinois currently stand amongst the 50 states you ask? Essentially in the middle. However, passage of this law would put Illinois at #1 with Alaska, Maine, and Wisconsin, each having minimums of $50,000/$100,000. Piece of advice, be careful driving in Florida or Ohio. The minimum to keep drivers in those states legal is $10,000 and $12,500 respectively. The most common minimum policy limits (shared by 26 of the 50 states) is $25,000 per person, $50,000 per occurrence.

The best advice is to never rely upon other drivers carrying enough (or any) insurance. Always make sure that you carry uninsured and underinsured motorist coverage. Make sure to purchase a policy with the highest bodily injury limits you can afford. The most common policy in Illinois is typically $100,000 per person, $300,000 per occurrence. While the cost of uninsured and underinsured coverage is relatively minimal, the amount of money it could save you down the line could be substantial.

Sometimes you want the public defender.

2013-04-06T12:31:00.000-05:00

March 18, 2013 was the 50th anniversary of Gideon v. Wainwright, in which the U.S. Supreme Court unanimously ruled that states are required under the 14th Amendment to provide counsel to criminal defendants who cannot afford a private attorney. I don't practice criminal law and I never really gave that case much thought after law school, but several news items over the past couple of weeks have made me think about it more and more.

I read an article last week that praised the Gideon ruling, but at the same time lamented the sad state of most public defenders' offices. The lawyers are overworked, underpaid, and sometimes incompetent, the article alleged. While they may be overworked and underpaid, it is completely unfair to categorize public defenders as incompetent.

Tom McCullough is a public defender. He is the public defender of DeKalb County. He was formerly the Kane County public defender. He has handled some of the highest profile murder cases in the Fox Valley area over the past several decades.

Tom McCullough is a hell of a lawyer, pardon my language. Recently, he represented William Curl, who was arrested for the murder of NIU student Toni Keller. That case was all over the news last week when Mr. Curl entered a guilty plea in exchange for a 37 year sentence. Since he has already served nearly three years, he will be released in approximately 34 years.

Following the entry of the plea, several lawyers involved in the case gave interviews on the courthouse steps out in Sycamore. I have placed a link below to Tom McCullough's interview. It's only about three minutes long and I suggest that you watch it.

Here is the link to the interview: "Public Defender Tom McCullough Talks Curl Plea Deal"

When I saw that interview, I immediately thought about that article that I mentioned earlier. I also thought about a lot of other interviews I saw last summer by private lawyers. Anybody who wouldn't want Tom McCullough as their lawyer just because he's a public defender must be crazy. Just watch the interview. He's as cool as they come.

Just think what could happen if you hired a private lawyer. You might get this guy:

Is Lassie Family or Property?

2013-04-03T15:51:00.001-05:00

Everyone knows that feeling of a long day that sometimes brings you home in a funk. You come home expecting to sit on the couch, do a little mindless TV watching, and then retire to bed. However, something changes your plan and at the same time, your entire outlook on the evening. The look of an excited and happy dog wagging his or her tail and waiting and ready to greet you and make all of your troubles go away.

Pets have become intertwined in the fabric of our lives. For most people, they are family members. They depend on us for food and shelter and in return, give us unconditional love. When we lose a pet to illness or accident, it is only natural that most people go through a grieving process similar to the loss of a family member or friend. In the case of an accident caused by another’s negligence, what rights does a pet owner have to recover damages for not only the value of the pet, but the medical bills and loss of companionship that the owner suffers? For many years, the answer was the actual true market value of the pet. However, many jurisdictions, including Illinois, have moved toward a more progressive understanding and approach to measuring the damages associated with injury or loss of a pet.

The most recent Illinois case to examine the treatment of damages associated with injury or loss of a pet was Leith v. Frost, 387 Ill.App.3d 430 (4th Dist. 2008). In Leith, a couple filed suit for serious injuries sustained by their dachshund, Molly. The dachshund was attacked by a neighbor’s Siberian husky, Cosmo. While the couple sought payment of $4,784 in veterinary expenses for Molly, Cosmo’s owner argued that the couple was only entitled to the fair market value of Molly, $200. The trial court agreed and limited damages to $200 holding that under the law, a dog is property and not person.

The Fourth District Appellate Court disagreed, finding that it was reasonable to expect pet owners to spend any amount necessary to cure a family member. Said the court:

It is common knowledge that people are prepared to make great sacrifices for the well-being and continued existence of their household pets, to which they have become deeply attached. They feel a moral obligation toward these animals. Emotionally, they have no choice but to lay out great expenditures when these animals suffer a serious physical injury.

While agreeing that pets are considered personal property, the court equated the value of a pet as akin to that of a family heirloom, photograph, or trophy (i.e. priceless). In doing so, the court held that damages should not be limited to something as nominal as fair market value, but that the owner should be able to provide evidence of what the pet’s value was to him or her.

In Leith, the pet owner only sought payment of the veterinary expense as Molly ultimately survived. Thus, the court did not address whether a pet owner should be entitled to damages for the loss of a pet. More specifically, should a pet owner whose pet dies as a result of the negligence of another be entitled to damages commonly associated with the wrongful death of a person, i.e. loss of companionship, loss of society? This is an area of law that will continue to develop and perhaps one day will more closely resemble how pets have become true family members.

Are pets family members? Should a pet owner be entitled to damages for the loss of their pet and the emotional suffering such a loss inevitably engenders? Any and all comments or questions regarding this topic are greatly welcome.

U.S. Trustee Suspends Debtor Audits

2013-04-02T10:49:00.000-05:00

According to a report on DowJones.com, the U.S Trustee ("UST"), the division of the Justice Department that monitors all bankruptcy cases, has indefinitely suspended its auditing program due to budgetary constraints. The BAPCPA amendments of 2005 authorized the UST to audit 1 out of every 250 consumer bankruptcy cases filed in this country.

This means several different things. For debtors, it means less oversight, intrusion, and hassles from the UST. It will reduce work and expenses for debtors' attorneys, most of whom work for a flat fee whether they are audited or not. It will also let debtors sleep easier at night knowing that it is more likely that they will get their discharge without having to jump through the hoops of an audit.

For creditors, it might mean that debtors will become more brazen with their petitions. If a debtor knows that there is no risk of an audit, he or she might take chances in filing a case that may not have been filed in the past. Creditors should begin to review debtors' petitions for accuracy more so than ever. There are several different ways that creditors can object to debtors' cases, so sharp-eyed creditors' lawyers should analyze all bankruptcy petitions for truthfulness and accuracy.

Please give me a call if you have any questions about the bankruptcy process, whether you are considering bankruptcy for yourself or if someone who owes you money has recently filed bankruptcy.

Can Macy's be forced to honor this advertisement?

2013-04-01T15:47:00.000-05:00

Macy's mailed an advertisement this month that listed a $1,500 sterling silver necklace for $47. The list price was supposed to be $479, but the advertisement contained a typo that listed the necklace for $47.

Apparently, several customers did get this "super buy" because when Robert Bernard arrived at a Macy's location in Plano, Texas, he was told that they were sold out of the necklace. The teller did offer to have the necklace shipped to Mr. Bernard's house though. He paid for the necklace at the register and was told that it would be shipped shortly. Before the necklace arrived, however, Mr. Bernard received a voice mail from Macy's telling him that the advertisement had been a mistake and that his order had been cancelled.

Let's analyze this situation from the perspective of a breach of contract case (in Illinois). In order to form a contract, there must be an offer and an acceptance. Ordinarily, a newspaper advertisement, whether it contains an erroneous purchase price or not, is not an offer that can be accepted to form a contract. The advertisement is construed by the courts of Illinois as an invitation to the general public to come in and make an offer. It would then be up to the store to accept the offer. At that point, you'd have a contract. See, for instance, O'Keefe v. Lee Calan Imports, Inc., 128 Ill.App.2d 410 (1st Dist. 1970).

So, not everyone who received this advertising circular from Macy's can sue them for a $47 necklace. Mr. Bernard, however, might actually have a case. Mr. Bernard did make an offer in response to the advertisement. Macy's, through its agent (the store clerk), accepted his offer. He fully performed by paying $47 on his credit card. He is entitled to full performance of the contract by Macy's. In my opinion, Macy's breached the contract by calling and telling him that his "order had been cancelled."

I'm sure some of the brilliant Blog followers will be able to argue the other side of this case. Who wants to defend Macy's? Who wants to tell me why this was not a valid contract? Who wants to make Professors Gaebler and Reynolds proud???????? Any and all comments would be appreciated.

LLC Charging Orders

2013-03-29T14:09:00.000-05:00

Charging orders are one of the more confusing areas of judgment enforcement law. Ordinarily, a judgment creditor would serve a citation to discover assets and then look to the citation statute for enforcement procedures. Under Section 1402, when non-exempt assets are discovered, the court can compel the judgment debtor to deliver those assets either to the sheriff or a private selling agent for sale. The proceeds of the sale are then applied to the judgment. This is commonly called a turnover order.

However, you can't obtain a turnover order on a judgment debtor's interest in an LLC. In order to do that, you'll need a charging order. Section 30-20(a) of the Illinois Limited Liability Act provides that "on application by a judgment creditor of a member of a limited liability company or of a member's transferee, a court having jurisdiction may charge the distributional interest of the judgment debtor to satisfy the judgment."

I just read a case that further clarifies the procedures behind a charging order. The case is Bank of America v. Freed, 2012 IL App (1st) 110749. Here is the relevant paragraph:

Under the Illinois Limited Liability Company Act (Act), a charging order only gives the judgment creditor the right to receive distributions to which the member would otherwise be entitled, and if the charging order is foreclosed, the purchaser would have only the rights of a transferee of distributional interests. Under section 30-1(a) of the Act, a member of an LLC “is not a co-owner of, and has no transferable interest in, property of a limited liability company.” 805 ILCS 180/30-1(a) (West 2008). Further, section 30-5 of the Act provides that a transfer of a distributional interest in an LLC does not give the transferee any rights as a member but only the right to receive distributions by the LLC, while section 30-10 provides that transferee may become a member only if all other members consent (805 ILCS 180/30-10(a) (West 2008)). A “transferee who does not become a member is not entitled to participate in the management or conduct of the limited liability company’s business, require access to information concerning the company’s transactions, or inspect or copy any of the company’s records.” 805 ILCS 180/30-10(d) (West 2008). Therefore, an Illinois LLC has no interest that is affected when a charging order is entered on a judgment debtor’s distributional interest because the party in whose favor the charging order is entered is not an owner of the LLC and has no authority over the LLC’s affairs and can only receive distributions. Hence, the LLC has no interest to be protected and need not be made a party.

“We are all vessels: human bags carrying sea water.”

2013-03-21T14:35:00.002-05:00

How’s that for an argument for federal admiralty jurisdiction?

Debtor bought a used pick-up truck for $28,000 at 23.9% interest and the note was assigned to AmeriCredit Financial Services, Inc. He made one payment and then sent AmeriCredit the note stamped with the words “Accepted for value and returned for value for settlement and closure” and directed AmeriCredit to bill the balance to the U.S. Treasury.

AmeriCredit repossessed the truck, sold it, and billed debtor for the deficiency of over $11,000. Debtor then sued AmeriCredit in federal court for $34 million plus $2.2 Billion in punitive damages. Here Judge Posner notes that “(N)eedless to say, he was proceeding pro se.” Debtor, now plaintiff, claimed jurisdiction on both diversity and admiralty grounds.

Although plaintiff had “perfect diversity” among the parties he failed to satisfy the second prong of diversity jurisdiction which requires an amount in controversy of $75,000 because although he alleged over $2 billion in damages, Posner found it to be “a legal certainty that the plaintiff is entitled to recover nothing.”

His claim of admiralty jurisdiction also failed. Although the debtor didn’t explain this claim Judge Posner recognizes the debtor’s claims as arising from the Sovereign Citizens' movement and cites to one of its publications that explains that because “(W)e are all vessels; human bags carrying ‘sea water’” there is admiralty jurisdiction. The Judge disagrees with this analysis, deciding instead that because there is no claim involving maritime activities there is no admiralty jurisdiction.

Baba-Dainja El Vs AmeriCredit Financial Services, Inc. United States Court of Appeals for the Seventh Circuit, No. 12-3310

Illinois Appellate Court Maximizes Recovery to Injury Victims

2013-03-14T14:45:00.001-05:00

In Stanton v. Rea, 2012 IL App (5th) 110187, the Fifth District Appellate Court scored a huge victory for personal injury plaintiffs by maximizing the amount a personal injury victim is entitled to receive out of a settlement or judgment. Under the Health Care Services Lien Act, 770 ILCS 23/1, medical providers asserting a lien on a personal injury claim are entitled to up to 40% of a verdict or settlement on behalf of a personal injury plaintiff. If the liens total 40% or more of a settlement or judgment, the law limits attorney’s fees to 30%. Prior interpretation of the law left a personal injury plaintiff with a maximum of 30% of their personal injury recovery. In essence, the medical providers received the greatest benefit from the plaintiff’s recovery while also retaining the right to collect any remaining balance on their bill after reimbursement from the settlement or judgment.

In Stanton, the Fifth District determined that calculation of the 40% due to medical providers should only begin after reducing the recovery by the total attorney’s fees and costs. The example below demonstrates exactly how important this is to an injured victim’s recovery:

Prior interpretation of the Act:

$100,000 settlement/judgment
- $ 30,000 attorney’s fees (30%)

- $ 10,000 costs

- $ 40,000 medical liens (40%)

=$ 20,000 net recovery to injury victim

Interpretation of the Act after Stanton v. Rea:

$100,000 settlement/judgment

- $ 30,000 attorney’s fees

- $ 10,000 costs

=$ 60,000 amount subject to Act computation

*40% of $60,000=$24,000 (amount lienholder entitled to under the Act)

$100,000 settlement/judgment

- $ 30,000 attorney’s fees

- $ 10,000 costs

- $ 24,000 lienholders share

=$ 36,000 net recovery to injury victim

Based upon the Appellate Court’s interpretation of the Act, the injury victim’s net recovery in the above example increased by $16,000, a substantial amount. Medical providers, however, are still entitled to bill and collect the outstanding balance left after reimbursement of their lien.

The Illinois Supreme Court denied certiorari in Stanton v. Rea, so this case is currently the law of Illinois.

Mortgage Lenders Kill People - Part II

2013-03-13T21:38:00.002-05:00

I wrote about a wrongful death case several years ago in which a widowed plaintiff alleged that her husband was killed by a mortgage lender's harassing telephone calls. HERE is a link to that story. I never heard how that case was resolved.

Today, I saw the following article about a guy who DIED IN COURT at a hearing in his lawsuit against Wells Fargo. He was suing them for screwing up his real estate tax escrow and causing him to default on his mortgage. These murderous mortgage lenders are out of control!!

According to the now-deceased plaintiff, a Wells Fargo typo ultimately resulted in foreclosure on his home. When Larry Delassus’ received a demand from Wells Fargo that he pay two years of late property taxes on his property in order to avoid foreclosure, he was understandably surprised. Delassus had paid his property taxes every year and did not owe a penny. In fact, Wells Fargo had paid property taxes on another neighboring property, but due to a two-digit typo, sent the bills to Delassus. Delassus, who spent a fair amount of time in and out of hospitals did not question the demand for back taxes or the increase in his mortgage (from $1,237.69 a month to $2,429.13 a month), but simply stopped paying his mortgage and moved into an assisted-living home in Carson, California. It was not until nearly two years later than his attorney discovered the typo and attempted to fight the foreclosure. The bank’s attorney acknowledged the error but refused to let Delassus resume paying his mortgage without catching up via a reinstatement payment first. Initially, Delassus was unable to find out how much he owed in reinstatement and would likely have been unable to pay it anyway on his fixed income. When he finally received an amount in January 2011, it was the sum of $337,250.40, owed in the next 24 hours or the foreclosure would move forward. The condo was sold in May 2011[1]. The story took a truly tragic turn, however, when Delassus died in court last December while pursuing a negligence and discrimination case against Wells Fargo. At the time of his foreclosure, Delassus was actually six months ahead on his property taxes[2]. Nevertheless, the judge had already indicated that she planned to rule for Wells Fargo, which led a bank spokeswoman to say that “there was no reason for Mr. Delassus to attend” after expressing sympathy over his death.

Can Physical Trauma Cause Fibromyalgia?

2013-03-12T16:39:00.003-05:00

You have probably seen the ads recently on television discussing medications used to treat fibromyalgia. Public awareness of the disease has increased over the last decade. Initially regarded as a “garbage can” diagnosis, the medical community has begun to recognize it not only as a real disease, but one with often devastating consequences. Additionally, much debate has now centered on whether fibromyalgia can be caused by the trauma sustained in a car accident. What is fibromyalgia? Can injuries sustained in a car accident cause or aggravate the condition? Can the trauma involved in a car accident “flip the switch” for someone who is predisposed to developing fibromyalgia, but was asymptomatic prior to the car accident?

I recently litigated and settled a case at mediation where a car accident caused the onset of fibromyalgia in a middle-aged female. She initially complained of an injury to her neck as a result of the car accident, but began to develop symptoms of fibromyalgia within a few months after the car accident. Not surprisingly, the insurance company hired experts who claimed the woman was faking or exaggerating her symptoms for some financial or emotional benefit. That is a typical defense in a case where the alleged injury is a chronic pain syndrome such as fibromyalgia or complex regional pain syndrome (CRPS). Fortunately, after many depositions and a vigorous battle, the case settled at mediation for $595,000. This was the largest settlement for a fibromyalgia case ever reported outside of Cook County.

What is Fibromyalgia?

Fibromyalgia is a musculoskeletal disorder characterized by widespread musculoskeletal pain. While there are many symptoms that have been affiliated with the disease, the classical symptoms aside from pain include: severe and chronic fatigue, sleep deprivation, memory loss, depression, and restless leg syndrome. Although a disease which predominantly affects women, men can and do acquire the disorder.

People with fibromyalgia are often described as having increased sensitivity to pain. For a person who reports pain that is 3 out of 10 on a 10 scale, the person with fibromyalgia may experience pain that rates at an 8 or higher. Indeed, persons who suffer from fibromyalgia have increased sensitivity to all sensory inputs. What one may perceive as a strong odor can overwhelm someone with fibromyalgia.

There is no easily administered diagnostic test which can confirm or rule out a diagnosis of fibromyalgia. As a result, people with fibromyalgia often encounter persons unsympathetic to their plight because they do not understand what causes their pain. Thus, the disease damages not only the body, but also the psyche.

Can a Car Accident cause Fibromyalgia?

Now that the diagnosis of fibromyalgia has gained acceptance in the medical community, the new controversial question has to do with what causes the disorder. Specifically, one of the leading questions currently surrounding the disorder is whether a car accident can cause a person to develop fibromyalgia? While many doctors and reputable organizations (i.e. Mayo Clinic) agree that it can, insurance companies and defense firms have spent significant money and resources trying to prove the opposite conclusion.

Of significance for fibromyalgia patients was one study conducted in 2002 which revealed a significant association between fibromyalgia and physical trauma (i.e. car accident) sustained in the 6 months before the onset of fibromyalgia symptoms. Another study found that a person who sustained a neck injury in an accident was 13 times more likely to develop fibromyalgia than a person who sustained a lower extremity injury. Remember the case that was discussed in the beginning of this article? The woman’s initial injury was to her neck.

What often gets confusing is when the discussion turns to whether a car accident caused fibromyalgia versus whether a car accident made the disease symptomatic. Fortunately for people in Illinois, the distinction does not matter. As long as the car accident is a cause in the development of fibromyalgia, an injured person is entitled to damages for relating to the condition which resulted from the car accident. This is significant because people affected by fibromyalgia often undergo many years of treatment and are often confronted with substantial medical bills.

If you were involved in a car accident and developed the onset of a chronic pain syndrome such as fibromyalgia, you may be overlooking an obvious cause of your symptoms. Contact a personal injury attorneyfor a free consultation to determine if you have any legal right to be compensated for your injuries. Not only is it important to obtain treatment from doctors who specialize in fibromyalgia and other pain syndromes such as complex regional pain syndrome, but also to hire a lawyer who specializes in this unique area of the law.

How do you feel about fibromyalgia gaining general acceptance as a legitimate condition in the medical community? Have you or anyone you know been diagnosed with fibromyalgia? How do people react to your diagnosis? Your questions and comments are welcome.

The Illinois Attorney General is Hiring

2013-03-11T12:00:00.003-05:00

I just came across the Job Opportunities section of Lisa Madigan's website. It was last updated on March 6, 2013 and they are listing 13 separate Assistant Attorney General positions, four in Chicago, six in Springfield, and one each in Champaign, Belleville, and Carbondale.

Here is a link to the website: http://www.illinoisattorneygeneral.gov/about/jobs/

FBI Searches NIU Police Department

2013-03-08T18:40:00.000-06:00

The FBI served a search warrant on the NIU police department this week. The actual subject of the investigation has not been publicly revealed, but I have read speculation that the search may related to last fall's indictments of several NIU employees who were conspiring to sell University-owned scrap metal off the books. Or not. It also may be related to the police chief who was fired last month. Or the NIU police officer who was indicted for rape last month. Or the NIU Vice President took a leave of absence today. Or something else entirely.

Anyway, in case anyone is interested, here is a copy of the federal search warrant that I obtained from the Justice Cafe twitter account (@facsmiley).

FBI search warrant at NIu by Daily Chronicle