THE DOCKET The Official Publication of the Lake County Bar Association December 2008· Vol. XV, No. 12
In this issue:
• One PL: An Overview of the College of Lake County's Paralegal Studies Program by Marty Gylleck
• Using the Defense Manpower Data Center by LTJG Courtney Cook
• A Discussion with Circuit Judge Jorge Ortiz by Shyama S. Parikh
• Whistling Past the Graveyard by Timothy A. Schlindwein
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LfW THE DOCKET The Official Publication of the Lake County Bar Association
DECEMBER 2008
3 President's Page: Family, Friends and the Bar Foundation ........................ ................... Bryan R. Winter
5 Chief Judge's Page ...................................................... .................................................. Hon. James K. Booras
7 One PL: An Overview of the College of Lake County's Paralegal Studies Program .... .................................. .. ................................... Marty Gylleck
10 LCBA Luncheon Meeting: Featuring Scott Turow
13 Using the Defense Manpower Data Center: Thirty Seconds That Could Save You Hours, Money, and Embarrassment.. .................................. LTJG Courtney Cook
18 A Discussion with Circuit Judge Jorge Ortiz ...................................................... ............ Shyama S. Parikh
21 Whistling Past the Graveyard ................................................................................ Timothy A. Schlindwein
26 Executive Board Meeting Minutes ................................... .. ........ ... .................. ...... Marjorie Sher, Secretary
29 Civil Trial and Appeals Committee Minutes ........................................................ ........ Richard N. Kessler
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2008/2009 Executive Board Bryan R. Winter-President Scott B. Gibson-1st Vice-President Elizabeth Rochford-2nd Vice-President Perry S. Smith, Jr.- Treasurer Marjorie Sher- Secretary Fredric Bryan Lesser-Past President Margaret "Meg" Marcouiller Steven P. McCollum Han. Valerie B. Ceckowski Han. Fred Foreman
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The Docket is the offidal publication of the Lake County Bar Assodation, 7 N. County Street, Waukegan, TL 60085 (847) 244-3143, and is published monthly. Subscriptions for non-members are $45.00 per year.
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December 2008 The Docket
President's Page Family, Friends and the Bar Foundation
by Bryan R. Winter
As we enter the holiday season, no matter how hectic the year has
been, when December arrives there always seems to be more time to reflect on family and friends. Even if you only glance through the pages of The Docket, the photographs and committee reports illustrate the fact that the LCBA cultivates and promotes the development of friendships between members. Last month, over 100 members attended the November luncheon, 180 people a ttended the retirement dinner for Judge Jane Waller, and over 75 members at-
tended the Wills, Trust and Probate Committee seminar. None of these events were strictly business, so members could mingle and chat with each other and enjoy being with friends: a true benefit of LCBA membership. Building personal relationships is certainly a strength of the associa tion.
When we think of others over the holiday season, the LCBA should also be a natural resource for connecting with those outside of the association, particularly individuals who have challenges that involve social justice issues. The LCBA Bar
Page 1
Founda tion should be a logical partner for our members who want to contribute or volunteer for community-based services. Yet, currently, the LCBA Bar Foundation does not have an annual budget. The LCBA Foundation was not organized to compete with or follow the same goals of the illinois State Bar Foundation. The LCBA Foundation's focus is on our members and Lake County residents. Therefore, it is appropriate to evaluate whether more can be done to help Lake County charities and social service groups .
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balance of the year. These plans include a spring luncheon series that will once again include package pricing for the series. The luncheons will feature some of our State Legislators in January, Illinois Attorney General Lisa Madigan as a guest speaker for April, and noted ABA legal author Jay Foonberg in May. All of these luncheons are expected to be held at the Greenbelt Forest Preserve Conference Center.
Another exciting program we will launch after the holidays will be the Citizens Law Academy. The series will begin Tuesday, January 27, and end February 24. This will be a five-
December 2008
week series that will cover a different area of law every week. The classes will be held a t the Grayslake campus of the College of Lake County.
Also, you should mark your calendars and plan on attending the President's Award dinner on Friday, February 27, and the installation ceremony for Scott Gibson as President on Friday, June 12, at the Deerpath Inn in Lake Forest
Most importantly, during this holiday season, remember your friends and family. Sometimes, the holidays are over before I finally relax enough to think of what I should be buying my wife for a gift, let alone her January birthday! So in addition to giving the Bar Foundation some considera tion, remember tha t your loved ones should be a t the top of your list! Happy Holidays everyone. 0
BnJan R. Winter [email protected]
That's where the help of the membership is needed. The Board of Directors and current Foundation chair Mark Peavey recently began discussing the possibility of expanding the role of the Bar Foundation. However, it is clear that for the Foundation to expand its programs, more input from the membership will be needed. So a meeting/ reception will be planned to essentially "Focus on the Foundation." The Board would like to invite all members that are currently serving on charitable boards or in any other capacity for charitable organizations that service Lake County residents, as well as members that are interested in donating their time to such organiza tions. The da te for this meeting will be announced on the weekly LCBA emails that have been very successful in keeping our members informed, so make sure your correct e-mail address is on file with the Bar office.
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December also marks the midway point for the bar year, so it is appropriate to outline some other major plans for the
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December 2008 The Docket
Chief Judge's Page guest written by
Tracy M. Poulakidas
The Honorable James K. Booras, Chief Judge of the Nineteenth Judicial
Circuit, was honored by the Hellenic Bar Associa tion wi th its Judicial Excellence Award at its Fifty-eighth Annual Installation
Dinner Dance and Scholarship Ball on November 1 at the Hyatt Regency McCormick Place in Chicago.
nity. As many Lake County Bar Association members know, Judge Booras came to the United States in 1970 after grad ua ting high school in Greece. With characteristic drive, he earned his Bachelor of
Science from Northern llIinois University in 1975. In 1979, he earned his Juris Doctor from Lewis University College of Law (now Northern Illinois University College of Law) and was admitted to the illinois Bar.
After a short stint in private practice, Judge Booras began his career in the State's Attorney's Office, where he became known for his ability to connect with juries. He was head of the narcotics
division at the time of his appointment to the bench.
In 1986, Judge Booras was named Felony Prosecutor of the Year by his peers. By 1991, he
Page 5
was described as "one of the county's top prosecutors." In June 2000, the State's Attorney's office honored Judge Booras with the Ben Ori Award.
Judge Booras was introduced by the Honorable Peggy Chiampas, a Hellenic Bar Association Board Member and Cook County Associate Judge. Chiampas outlined Judge Booras's many career achievements and his invaluable contributions to the Greek-American community. After describing his pioneering rise to the judiciary, Chiampas noted tha t there are currently 11 judges of GreekAmerican descent serving throughout the state of illinois. "And," she emphasized with pride, "three of those judges trace their roots to Uudge Booras's hometown of] NestaniTripolis."
When describing his remarkable career path, Judge Booras stated, "I am the product of Hellenism and the American Dream." "I am proud and humbled," he Born in Nestani-Tripolis,
Greece, Judge Booras is an immense source of pride in the Greek-American legal commu-
Tracy Poulakidas is a Staff Attorney for the Nineteenth Judicial Circuit. She is a graduate of Chicago-Kent College of Law.
Page 6 The Docket December 2008
First Judicial ~istrict Appellate Court Justice Themis Kamezis with Cook County Associate Judge Oemetrios Kottaras
Judge Booras with Judge Peggy Chiampas
Judge Booras with Mistress of Ceremonies Christine Mig/lion of In TimeTV's "Healtheare Executive"
Nineteenth Judicial Circuit Staff Attorney Tracy Poulakidas; Mrs. Kathy Booras; Judge Booras and Irene, his wife; Judge Margaret Mullen and Mr. Frank J. Springer, her husband
Frank Springer and Judges Samuel Oer-Yeghiayan, Booras and Mullen
said in his acceptance speech. "1 am lucky because this country gave me the opportunity to be elected Chief Circuit Judge of the third largest county in Illinois."
Judge Booras was accompanied by his wife, Irene; his aunt, Kathy; and his cousins, Nick and Peter Gountanis. Also present were his close friend, the Honorable Samuel Der-Yeghiayan, Federal District Court Judge for the Northern District of Illinois, and the Honorable Margaret Mullen of the Nineteenth Judicial Circuit.
"His recognition is richly deserved," said former colleague, Justice Mary S. Schostok of the Appellate Court's Second Judicial District.
Other dignitaries in attendance included His Excellency Ambassador Anastassios Petrovas of Greece; the Honorable Charles Kocoras, Federal District Court Judge for the Northern District of llIinois; the Honorable Thernis N. Karnezis, Justice of the Illinois Appellate Court's First Judicial District; the Honorable Demetrios Kottaras and the Honorable Martha Mills, Associate Judges, Cook County; the Honorable E. Kenneth Wright, Presiding Judge of the First Municipal District, Cook County; the Honorable Louis G. Apostol, Executive Director of the State of llIinois Property Tax Appeal Board; and the Honorable Dorothy Brown, Clerk of the Circuit Court of Cook County.
Since being honored, Judge Booras has added two additional accomplishments to his resume. On November 4 he successfully ran for retention, receiving over 79% of the vote. He was also recently re-elected Chief Judge by unanimous vote of his fellow Circuit Judges. 0
December 2008 The Docket
One PL
With Apologies to Scott Turow, an Overview of the College of Lake County's Paralegal Studies Program
by Marty Gylleck
We are privileged to have the College of Lake County, one of
the best community colleges around, sitting right in our backyard. Four years ago, CLC added a Paralegal Studies program to its bevy of of-
Science in Paralegal Studies. Coursework for this degree includes English, Math, Social Sciences, Computer, and Communications, as well as a plethora of paralegal electives to choose from, for a total of 63 hours of
Page 7
take the same three courses tha t are the backbone of paralegal scholarship: Introduction to Paralegal Studies; Legal Research and Writing; and Litigation.
Starting out with baby steps,
ferings. With over 250 students and 19 instructors, it has become a very popular program of study. I am in a good position to enumerate the merits of that program, as I am just a few weeks from being ushered through its hallowed halls with a stamp of approval on my forehead, ready with the rest of my classmates to be an asset to Lake County's legal community. In this article,
The main entrance to the College of Lake County-portal to the halls of learning
we are introduced to statutes, case law, torts and contracts. We quickly learn that the question "was Mr. Smith guilty of DU!?" is NOT the issue of the case, but rather something like: "Was Mr. Smith in actual physical control of a motor vehicle when he was just pushing the car along the road instead of driving it?" Every single paralegal student learns to find statutes and cases on point in the lllinois Compiled Stat
I will present a small snapshot of the College of Lake County's Paralegal Studies Program from the perspective of one of its students.
There are two paths students can traverse on the journey to Paralegalland. For those students who do not have a Bachelors or Associates degree, CLC offers an Associate in Applied
college credit. Those students who already have a prior degree may pursue the Certificate in Paralegal Studies, which requires 21 total credit hours. Whether Certificate or Associate, all students are required to
utes, Illinois Decisions, and North Eastern Reporter, to Shepardize to make sure they are still good law, to navigate around Westlaw, and to write their findings in a case brief. In Litigation class, we follow the
Marty Gylleck is a student at the College of Lake County and is currently interning at Lesser, Lutrey, and McGlynn, LLP, in Lake Forest.
Page 8
long and winding road from complaint to answer and discovery, pleadings and motions, to settlement or trial, as well as producing written samples of much of that paperwork.
Starting with these three foundational classes, students can branch off into many specialized subjects, including Business, Criminal, Contract, and Family Law; Intellectual Property and Healthcare Law; Real Estate, Probate, and Bankruptcy, to name some. CLC has amassed a large, diversified pool of local legal talent to teach these courses. "Each adjunct facul ty member is a local practicing attorney who works or specializes in the field that coincides with the subject they teach," states Gayle Miller, Department Chair of the program. "So the probate instructor practices proba te, the bankruptcy teacher practices bankruptcy, etc."
Internship is the capstone class for many paralegal students. Gayle Miller has solicited some local law firms to take one or two students under their wing for a semester, giving us the opportunity to observe the inner workings of a law office. In addi tion to trus time in the field, we meet one classroom hour a week to talk about our experience and discuss important and pertinent issues, such as what each of us learned in our placements the past week, how to write a good resume, confidential answers to ethlcal issues, and what to wear (and with what shoes!). This semester's Internsrup class offers a variety of law specialties, with stu-
The Docket December 2008
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dents interning with firms that practice estate planning and probate law, family law, personal injury, bankruptcy law, criminal law, and intellectual property.
Etrucs is woven as a continuous thread through every paralegal class I have taken at CLC. The two issues most often discussed are confidentiality and the unauthorized practice of law. Maintaining confidentiality, we learn, is not just refraining from yammering loudly about the details of a case in the local coffee shop, or mentioning that-can you believe it?!-Mr. Miller is leaving six figures in rus will to the Hare Krishnas! Rather, it is never mentioning the fact that Mr. Miller darkened the door of your office at all,
much less any details, juicy or otherwise. For those who enjoy telling all, there are always journalistic careers to be sought with the supermarket tabloids, wruch include the added incentive of not having to be very picky with the truth! Those who want to work as paralegals will have to find other things to gossip about.
Avoiding the unauthorized practice of law is easy when it comes to something such as not signing your supervising attorney's name to a document that you just drafted. The hard thing to remember is to not give legal advice. Even with the neophyte knowledge of a student, we are faced with situations where we know the right answer, but can't say it. This is especially difficult
i
I .,
December 2008
with friends and family. Aunt Phyllis doesn' t understand why you can't just answer her perfectly simple question about the Rule Against Perpetuities. She has to go ask an attorney!?! I am sure that everybody, family, friends, and paralegals alike, will eventually become accustomed to paralegal ethics, and Thanksgiving invitations will be forthcoming again.
That was just a snapshot of what we learn. A complete picture of CLC's paralegal program would not be possible without describing us as students. While we have representatives from many demographics, including students fresh out of high school, men, and those who are already receiving junk mail from AARP, the large majority of students in CLC's paralegal program seem to be women of middle age. Often, we are on our third or fourth careers, with one of those commonly being several years at home with the kids. I have had classes with former nurses, teachers, dance instructors, firefighters, accountants, caterers, math professors, and artists, to name a few. We mid-
The Docket
dIe-aged women, having been around the block a few times, bring a lot of experience and strength with us. We may not be able to win a trivia contest based on Black's Law Dictionary, but you can be assured that if we've traversed life this far without resorting to either murder or underwater basket weaving, we have learned how to cope with just about anything and everything - and thrive.
Why did we go into paralegal? Many of us were won over by the siren call of excellent job growth and good money, as presented in the Paralegal Information Session. Some of us were intrigued by a profession that, unlike nursing, teaching, and some others, lets us sit down until retirement. However, I know that some of my classmates have always been fascina ted by the la w, and sa w this as the chance to follow their dream. They would have loved to have been a lawyer, but the path was never quite clear for them. Some are emboldened, however, to go on to law school after completing the program. At least one of my friends is pre-
Page 9
paring to take her LSA Ts and take the plunge towards hard studying and long Metra rides.
I am very pleased with the quality of the education that my classmates and I have received at CLC, and I am not alone in thinking so. While it is commendable to declare "We're number one!" (at least in our comer of the backyard), it is preferable to have outside sources of good repute to back up these assertions. The College of Lake County has been endeavoring to do just that. The Paralegal Studies Program at CLC is in the final stages of acquiring approval by the Standing Committee on Paralegals of the American Bar Association. I know that my classmates and I have had excellent teachers, learned a lot of big words, and had the opportunity to experience many practical examples of the work we will be expected to do after we graduate. We may have been teachers, accountants, high school students, or moms, but now we are paralegals, and we are looking forward to joining you as part of the legal community in Lake County. 0
Leslie Klocek's Friday morning Real Estate class. This day we completed form s for the seller at closing-knowledge we hope to use someday soon.
Gayle Miller assists Gayle Freedman.
Page 10 The Docket
LeBA Luncheon Meeting Featuring Scott Turow
O n October 30, author Scott Turow spoke at Waukegan City Hall to a full room of LCBA members. Mr. Turow's presentation was personal, informative, and very engag
ing, as the following photos will document. If you're missing these luncheon meetings (photos of the Patrick Fitzgerald lunch
Membership turnout was large
Judge Diane Winter
eon will appear in next month's Docket), you're missing out on a great new benefit to LCBA membership!
LCBA Executive Director Chris Boadt
Carrie Lincoln
State's Attorney Mike Waller
December 2008
Bryan Winter and Judge Foreman
D.J. Vorderstrasse
Rick Scott
December 2008 The Docket Page 11
Rick Lesser Judge Daniel Shanes
Tricia Cornell Steve McCollum and Justice Ann Jorgensen
Turow with Bryan Winter Perry Smith Keith Grant
Turow with Mike Mermel Judge Jane Waller and Rick Kessler Michael Conway
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December 2008 The Docket Page 13
Using the Defense Manpower Data Center
Thirty Seconds That Could Save You Hours, Money, and Embarrassment
by LTJG Courtney Cook
O ne of the best experiences for a la~er is winning a case. There
are several experiences, though, that can cause an attorney to forget all those successes and get bogged down in feelings of embarrassment. One such experience is telling a client that a successful result is being thrown out. Another is being face to face with a judge, answering questions about a possible ethical breach. These experiences only worsen after discovering tha t a thirty second investment at the beginning of the case could have prevented both. In cases that trigger the protections of the Servicemembers' Civil Relief Act, these exact scenarios can and have occurred. Fortunately, the Department of Defense Manpower Data Center offers a tool which can prevent these situations from ever rna terializing.
I. The SCRA's Protections
Under the Servicemembers' Civil Relief Act (SCRA),! new members of the military are en-
I. 50 U.5.c. app. §§ 501-596 (2008). 2. See 50 u.s.c. app. § 535.
titled to many benefits not available to the ordinary citizen. These benefits include protections against high interest rates, repossession, foreclosure, and the inability to appear in court, just to name a few. The purpose of such benefits is to ensure that those who choose to serve their country are not burdened for or prevented from doing so. For instance, new, active, and separa ting servicemembers are often assigned to duty stations far from their original horne. To meet the military'S needs to move service members every two or three years, or to return them horne after an honorable separa tion, the servicemember must terminate a residential lease long before it expires. If servicemembers are required to pay the remainder of the lease, they will either face financial hardship as a result of their decision to serve, or, for new members, decline to serve at all. The SCRA prevents such a bur-
den by allowing servicemembers to terminate the remainder of their lease on proper notice.2
Creditors and others with legitimate grievances against servicemembers sometimes find that these service-related benefits interfere with their ability to redress those grievances. Often, the hurdles that must be crossed are not apparent at the outset, and only return to haunt those with legitimate complaints long after they believe the issue was resolved.
II. Back to Square One
One area where creditors frequently run afoul of the SCRA is self-help repossession. Under section 532 of the SCRA, a creditor must obtain a court order before repossessing an active-duty servicemember's vehicle if the servicemember purchased the vehicle prior to entering the service. If a creditor violates this prohibition on self-
Courtney Cook is a Lieutenant Junior Grade in the United States Navy Judge Advocate General's Corps. She is assigned to the Naval Legal Service Office in Great Lakes, Illinois, where she practices legal assistance and criminal defense. She graduated from the Ohio State University Moritz College of Law in 2007 and is a member of the Ohio bar.
Page 14 The Docket
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help repossession, a court can find the creditor liable for all previously-paid installments and order the creditor to release the servicemember from the remainder of the purchase contract.3 Creditors who knowingly violate this prohibition face criminal liability, including fines and imprisonment of up to one year.4
In the face of such repercussions, if a vehicle is repossessed from a servicemember wi thou t a court order, creditors will often seek to settle the case before a complaint is filed . This situation is sometimes seen in military legal service offices, and the settlements are generally as follows: If the vehicle has not yet been sold, it is returned to the servicemember at the creditor's expense. The creditor must then file suit in court to repossess the vehicle after additional
payments are missed. If the creditor has already sold the vehicle a t the time a military legal assistance attorney becomes involved, the creditor will often offer to forgive the remaining debt and remove any negative trade lines from the servicemember's credit report.
Creditors might protest tha t they have no notice of a servicemember's entry onto active duty and that they should not, therefore, be held liable if they repossess a servicemember's vehicle without a court order. Section 532, however, creates no exception for lack of notice. While other provisions of the SCRA specifically require servicemembers to notify a creditor of their entry onto active duty in order to reap the benefits,S no such requirement exists in section 532. Therefore, even if the creditor is unaware of the
December 2008
debtor's military status, the vehicle still cannot be repossessed without a court order. Consequently, it is worthwhile for a creditor to learn a debtor's military status prior to attempting repossession. A cost-effective method for doing so will be discussed later in this article.
III. Case Closed?
It is not only creditors acting outside of court who find themselves in violation of the SCRA. Plaintiffs seeking default judgments also find themselves at odds with the SCRA, often failing to abide by its protections against default judgments. These protections require that certain steps be taken in every case prior to a default judgment's entry, and provide an avenue for relief once a default judgment is entered.
A. Pre-Entry Protection
Under SCRA § 521, a plaintiff seeking a default judgment must file an affidavit of military service in every civil action where a defendant does not make an appearance.6 The affidavit must state that the defendant is either not in military service, is in military service, or it is unknown whether the defendan t is in mili tary service, and
3. Jd. at § 532(c)(1); see, e.g. , Hanson v. Crown Toyota Motors, 572 P.2d 380 (Utah 1977) (granting servicemember almost full refund of the payments he made on the installment contract after creditor repossessed and sold vehicle without CQllrt order).
4. 50 U.s.C app. § 532(b)(1). 5. See, e.g., 50 U.S.C app. §§ 527 (notice required for automatic reduction in interest rate), 535 (notice to terminate lease), 535a (notice
to terminate cellular phone contract). 6. 50 U.s.C app. § 521(a). Many courts have held that this affidavit must be filed contemporaneously with, or as close as possible to,
the entry of the default judgment, not just with the original pleading. See, e.g., B. & B. Sulphur Co. v. Kelley, 141 P.2d 908 (Ca!. App. 1943); National Bank of Far Rockaway v. Van Tassell, 36 N.Y.S.2d 478 (N.Y. Sup. 0.1942).
December 2008
there must be facts supporting each conclusion.7 If the defendant is in military service, an attorney must be appointed to represent the defendant. 8 If the status of the defendant's military service is unknown, the plaintiff may be required to file a bond that would indemnify the defendant if he is later found to be in the service and he is able to get the judgment set aside.9
Failure to file this affidavit does not render a default judgment void. Rather, the default judgment is voidable only if the defendant was, in fact, a servicemember at the time of judgment and only if the SCRA's requirements for setting aside a default judgment are otherwise met. JO
In other words, if the pre-entry protections are ignored, the remedy is not an automatic vacating of the judgment, but is, rather, use of the post-entry ave-
7. 50 u.s.c. app. § 521(b)(1). 8. Jd. at § 521(b)(2). 9. Jd. at § 521 (b)(3).
The Docket
nue of relief under section 521 (g).
B. Post-Entry Protection
Under SCRA § 521(g), if the defendant indeed turns out to be in military service at the time of a default judgment's entry and the defendant never made an appearance, the court "shall," upon application by the defendant, reopen the judgment if (1) the defendant's military service materially affected his ability to mount a defense, and (2) the defendant has a meritorious or legal defense to the action. This is not a burdensome threshold to meet if the servicemember actually has a defense to the action.
In Murdock v. Murdock, a servicemember's former spouse filed a petition for a rule to show cause regarding the servicemember's failure to make
Page lS
child support payments.11 At no time did she file a military affidavit. The servicemember had actual notice of the hearing and even communicated with the court informally, but he did not attend the hearing. The trial court went forward with the hearing and not only awarded the former spouse an arrearage in child support, bu t also ordered the servicemember to pay thousands of dollars in marital debt and attorneys' fees. The servicemember later attacked the judgment under section 521 (g), showing first that his military service materially affected his ability to attend the hearing because he was stationed in Japan and, second, that he had a meritorious defense to the action because he had evidence he had made all child support payments. Based on these facts, the court vacated the judgment and ordered a new trial. 12
10. Murdock v. Murdock, 526 S.E.2d 241, 247 (S.c. Ct. App. 1999), citing Thompson v. Lowman, 155 N.E.2d 258 (Ohio Ct. App. 1958). See also Citibank, N.A. v. McGarvey, 765 N.y.s.2d 163 (N.Y. Civ. Ct. 2003); Hart, Nininger & Campbell Associates v. Rogers, 548 A.2d 758 (Conn. App. Ct. 1988); Snapp v. Scott, 167 P.2d 870 (Okla. 1946).
11. 526 S.E.2d at 244. 12. Jd. at 248.
Page 16 The Docket December 2008
Section 521(g) is not only favorable to the servicemember substantively, but also procedurally. The servicemember has ninety days following release from
Although failure to comply with the military affidavit requirement does not result in automatic vacating of default
judgments, this does not mean that such failure is without its costs.
Order to Show Cause directing Richard ]. Miller, Esq. to appear before this Court and explain a glaring inaccuracy in an Affidavit of Default filed with this Court.. .. 17
active duty to file the ap-plica tion to vacate a de-fault judgment.13 Unlike the two-year time limit for reopening judgments in the Illinois Code of Civil Procedure, this time limitation is quite openended even absent fraud or legal disability.14 Ninety days after release from active duty could, after all, corne thirty years after the default judgment is entered.
C. Consequences of Failure to Comply with Affidavit Requirement
Although failure to comply with the military affidavit requirement does not result in automatic vacating of default judgments, this does not mean that such failure is without its costs. First, failure to me the affidavit necessarily means that an attorney does not have full knowledge or control of the case. If no affidavit is med and the defendant's military status is unknown, then steps cannot be taken at the outset to ensure the default judgment stands, such as the appointment of an attorney. Moreover, without
13. 50 U.s.c. app. § 521 (g)(2). 14. See 7351LCS 5/2-1401 (2008). 15. 50 U.s.c. app. § 521(c).
this knowledge, the client will not have warning that any default judgment entered will probably be vacated-for example, if the defendant is in Iraq.
A more serious consequence involves submitting a false affidavit. If the affidavit is knowingly false, it could result in criminal charges.15 If it is false as a result of poor investigation, it could prove to be a ground for sanctions. In a recent bankruptcy case, In re Templehoff an attorney filed a military affidavit attesting that the debtor was not in military service.16 After the court discovered this affidavit to be erroneous, it summoned the a ttorney before the court:
This matter is brought sua sponte via the issuance of an
Apparently, the debtor was in fact in the military,
serving in Iraq, and his bankruptcy petition stated as much. The Court was understandably ready to impose sanctions on the attorney for his false and fraudulent affidavit. Fortunately, as will be discussed in the next section, the attorney was saved by a thirty second action his office had taken just prior to ming the motion at issue in the case.
IV_ Resolution from the Beginning
How are these problems avoided? How does a creditor know that a vehicle it is repossessing belongs to a servicemember, or that a defendant who does not make an appearance is in the military? The SCRA does not require the ser-
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December 2008
vicemember to inform a creditor of his entry onto active duty in order to avoid self-help repossession or a default judgment.l s
The burden is therefore on the creditor or the plaintiff.
Fortunately, there is a costeffective remedy for those in both categories. The Department of Defense Manpower Data Center (DMDC) keeps records, available on a public website, of individuals currently on active duty and lists the date on which each began active service. The free website is available at https: / /www.dmdc.osd. mil/scra/owa/hom. Through this website, an individual's active duty status can be checked within thirty seconds using the individual's social security number and last name.
For the attorney in In re Templehoff it was this very action that saved him from being sanctioned by the court. After the
18. See supra note 5 and accompanying text. 19. 339 B.R. at 52. 20. ld.
The Docket Page 17
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court ordered him to show cause for his faulty affidavit, the attorney first "ruefully" admitted that he had not in fact read the debtor's petition, which clearly showed the debtor's occupation in the military.19 He then showed tha t his office performed a search of the DMDC system four days prior to filing the motion and the DMDC did not show the debtor as being on active duty.20 The fact that the attorney did actually search the database effectively gave him a safe harbor from sanctions:
The Court thinks, given the apparent prevalence of using the Data Center as the source of information regarding military status, that Mr. Miller's Affidavit was made with the degree, albeit at the minimal end of the scale, of investigation necessary.21
This attorney's experience makes for an excellent example. Although the DMDC is not fullproof, it does provide major benefits at a very small cost. Creditors follow many proced ures to repossess vehicles, and searching the DMDC adds only thirty seconds to strengthen that process. Plaintiffs and their attorneys want successful resolutions tha t last, and searching the DMDC adds only thirty seconds to have faith in a default judgment. Attorneys need their licenses and their reputations, and as the case of In re Templehoff shows, the DMDC offers safe harbor for only thirty seconds of an office's time. There are many preparatory steps attorneys take in every case. Thirty seconds with the DMDC should be one of them. 0
21. ld. at 55. The Court did add that not only should DMDC be searched, but that, at least in bankruptcy cases, the debtor's petition must be read. ld. Usually this goes without saying.
Page 18 The Docket December 2008
A Discussion with Circuit Judge Jorge Ortiz
by Shyama S. Parikh
The Honorable Jorge Ortiz is the youngest of nine children and was born
and raised in the Logan Square area of Chicago by parents from Puerto Rico. He obtained his undergraduate degree in Political Science from Loyola University before attending John Marshall Law School. Judge Ortiz interned at the Lake County Public Defender's office, and he graduated from law_ school in 1989. After graduating, he worked in the Lake County Sta te' s Attorney's office before going into private practice with Soffietti, et al., in the late 1990's. He became a partner with that firm and worked there until he was appointed an Associate Judge on December 2, 2002. Judge Ortiz describes his appointment to the bench as a tremendous honor.
Upon being appointed, Judge Ortiz presided at Lakehurst for approximately one year. He was the first judge to preside at the Mundelein branch court, and he did so for about one year until joining the Family Division in January 2005.
When he arrived on the first floor, Judge Ortiz handled the
call in courtroom C-107, mostly prove-ups and adoptions, as well as the Thursday child support call in C -105. He also presided over involuntary mental
commitment cases, divorce and visitation cases, and provided backup to the entire Family Division. Judge Ortiz was assigned to his own trial call in Courtroom 105 when the Hon-
orable Joseph Waldeck was reassigned, and he continues to preside in that courtroom.
Judge Jorge Ortiz was appointed Circuit Court Judge on August 25, 2008. He remembers exactly how it happened and speaks very proudly of the events of that day: he came home one evening and heard a message left by Illinois Supreme Court Justice Robert Thomas asking for a return telephone call. Upon returning the call, Judge Ortiz was pleasantly surprised at the great news! He is very humbled and feels tremendously honored that the Supreme Court had enough faith and trust in him to appoint him a Circuit Judge.
In addi tion to being a Circui t Judge, Judge Ortiz serves on the Sta te of Illinois Child Support Advisory Committee, works on child support initiatives at the federal and local levels through the federal Office of Child Support Enforcement, is on the
Shyama S. Parikh is an Associate at Shaw Law Ltd. and exclusively practices Family Law. She is a Guardian ad Litem, Child Representative, as well as a Court-Approved Mediator. Among her other activities, Shyama is the Vice President of the Association of Women Attorneys of Lake County and chairperson of the LCBA Public Relations Committee.
December 2008
boards of NICASA and the Mano a Mano Family Resource Center, and is a member of the Health Care Foundation of
Judge Jane Waller
Northern Lake County, as well as the Illinois Judges Association.
The Docket
I asked Judge Ortiz about his experiences working with various individuals during his legal career, and he mentioned a few that stood out to him. Judge Ortiz feels honored to have worked with Judge Jane Waller, who he describes as a pioneer and a role model for all lawyers and judges.
In addition, Judge Ortiz named Judge Gary Neddenriep as a good friend and mentor. He mentioned how Judge Neddenriep leads by example, and stated that he feels lucky to have had the opportunity to work with him. Judge Ortiz noted tha t all of the judges in the Family Division work very well together and make a good team-something he finds to be extremely important. He was excited when the illinois Su-
Walter • Ellis WE MEDIATE & ARBITRATE
Page t 9
preme Court recalled Judge Neddenriep to the bench for a temporary assignment in our Circuit.
I asked Judge Ortiz what advice he would offer our legal community, and he offered the following: he would like to encourage the young lawyers to be active in the Lake County Bar Associa tion, as well as in their communities. He feels that the gifts and talents of the young lawyers are needed to continue the advancement of the bar and encourages them to become child representatives and mediators.
For a ttomeys in general, Judge Ortiz emphasized that he appreciates civil and courteous behavior from the practitioners who appear before him. He said that he understands that the na-
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Page 20 The Docket December 2008
DEPOSITION REPORTERS
vices invited Judge Ortiz to speak in San Antonio, Texas, at the Western Interstate Child Support Enforcement Conference. Also, the illinois Family Support Enforcement Association recently honored Judge Ortiz with several others, including the Nineteenth Judicial Circuit, Irene Curran, the Lake County State's Attorney's office, Lori Medernach, and the illinois Department of Health and Family Services, for our Circuit's problem-solving child support enforcement call. In addition, Judge Ortiz will be speaking at the ISBA Family Law Seminar this November.
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ture of the cases before him can be contentious and emotionally charged; however, he believes a calm and well prepared advocate is the one most likely to prevail in his courtroom. Judge Ortiz appreciates the hard work of lawyers and has learned a lot from them, both prior to and after taking the bench.
Judge Ortiz's experience on the first floor has made him more aware of the need for alternative methods of resolving family conflicts. He mentioned that his work in the Family Division has given him a greater appreciation for the struggles families face and a better appreciation for his own family. He is very thankful to his parents and his siblings for the sacrifices they made for him. In addition, he is thankful to his wife and children for supporting him and helping him reach his current position.
Judge Ortiz looks forward to participating in the administration of the Nineteenth Judicial Circuit and working with the judiciary to improve the way it serves the public. In addition, he looks forward to continued
COURT REPORTERS
Deborah l. Severson, CSR
work with the Lake County Bar Association in general, as well as the very active Family Law section. In particular, Judge Ortiz said tha t he would like to continue incorporating problemsolving court techniques into our child support enforcement call and to see the expansion of the Volunteer Mediator Program.
In September, the Department of Health and Human Ser-
You can find Judge Ortiz in Courtroom C-1OS, except on Thursdays when he conducts Pre-Trial Conferences in ClOSA. Congratulations Judge Ortiz on your appointment to Circuit Judge! 0
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December 2008 The Docket Page 21
Whistling Past the Graveyard
by Timothy A. Schlindwein
For most of the past 70 years, the economic and financial travail of the 1930s has been avoided in developed countries around the world. As a result, each major economic and stock market downturn was met with the belief that "it's different this time." Each time, investors were rewarded for
staying positive as that most dire of situations indeed did not repeat. For the first time in the post-World War II period, however, a frequent headline in recent days has been, "Not since the Great Depression . ... " Will this be the cycle when whistling past the graveyard of economic depression does not save the day? A review of cycles may provide some guidance for the period ahead.
The Nature of Cycles
Market and economic cycles have repeated much like nature's seasons. Nevertheless, new market cycles have been accompanied time and again with the "different this time" prinCiple. Recall the technology bubble and the housing bubble. In the 1990s, the Internet was going to revolutionize the world, making the business cycle different this time. The Internet has changed all of our lives in many ways, but that provided little support for technology stocks priced on the stuff of dreams rather than the reality of earnings. Not so very long ago, the housing market was seemingly different this time, supported by the new world of financial engineering, easy credit (Le., subprime) and low interest rates. It turned out that house prices do not always go up.
There is a regularity in market cycles that is captured in this simplified chart. The challenge is to identify what position in the cycle is at hand.
Euphoria
Optimism
Simplified Market Cycle
Optimism
Timothy A. Schlindwein is Managing Principal of Schlindwein Associates, LLC, an independent investment advisor with offices in Chicago and Dallas. Mr. Schlindwein possesses over 39 years of experience in the investment management industry. He has created mutual funds, managed mutual funds and institutional portfolios, and headed an investment firm with managed assets exceeding $28 billion. He earned his bachelor's degree from the University of Notre Dame and his MBA from the University of Chicago, where he serves on the Graduate School of Business Advisory Council.
Page 22 The Docket December 2008
For all the advancement in the study of economics and finance, for all the tools and techniques available to investors in this age, the fundamentals of human behavior and the opposite emotions of greed and fear are not different each time. Studies in behavioral finance have suggested that fear dominates greed. A bear stock market of the magnitude just experienced provides ample reason for extreme investor fear.
Bear Market Perspectives
The bear stock market of 2007-2008 has but three peers reaching back to the 1920s. The following table provides an overview of all four, using the Dow Jones Industrial Average ("DJIA") as the market index:
DATE LEVEL
HIGH to LOW LOW to OLD HIGH
DATE LEVEL
HIGH to LOW LOW to OLD HIGH
DATE LEVEL
HIGH to LOW LOW to OLD HIGH
DATE LEVEL
HIGH to LOW LOW to OLD HIGH 4-Year Recovery Time 8-Year Recovery Time 12-Year Recovery Time
1929 -1932 HIGH LOW
9/3/1929 7/8/1932 380.33 41.22
% Change Years -89% 2.8 829% 22.4
1973 - 1974 HIGH LOW
1/11/1973 10/4/1974 1051.7 584.56
% Change Years -44% 1.7 82% 8.1
2000 - 2002 HIGH LOW
1/11/2000 10/9/2002 11722.98 7386.27
% Change Years -37% 2.7 59% 4.0
2007 - 2008 HIGH LOW
10/9/2007 10/27/2008 14164.53 8175.77
% Change Years -42% 1.1 73%
OLD HIGH 11123/1954
382.74
Annual Return -54% 10%
OLD HIGH 111311982 1065.49
Annual Return -29% 8%
OLD HIGH 10/3/2006 11727.34
Annual Return -15% 12%
OLD HIGH 11
14164.53
Annual Return -41%
15% 7% 5%
December 2008 The Docket Page 23
As painful as each bear market has been, the cycle does tum, and the subsequent period of recovery has proven rewarding for investors. To be sure, the time period required after each downturn to regain prior highs has varied widely. The highlighted panel at the bottom of the prior table provides potential market returns for different recovery horizons to the last market high.
Financial Extremes
Recent market volatility has been extreme by any measure. The daily price changes of the DJIA provide perspective in Chart A. Over the entire history of the DJIA from May 1896 through October 2008 (over 30,000 trading days), the daily price change has averaged less than J.2 percent. Over the past two months, the average daily price change for the DJIA has been 3%.
While the severity of the current financial crisis is most visible in the loss of stock market value around the world, volatility has been high in many areas. Credit market volatility can be seen in Chart B for the U.S. bond market and in Chart C for the money markets.
.,. ". ..
CHART A
Dow Jones Industrial Average Daily Changes
September - October 2008
CHART C
, ... ,--------------------, .... Yield Spread
.... Eurodollar Rates Vs. U.S. Treasury Bills
....
CHART B
'R,-------------------,
Yield Spread BBB Corporate Bonds Vs. AM Corporate Bonds
....
....
....
CHART D
$1,000,000
I U50,ooo
I U.S. Monetary Base I (millions)
5900,1100
St5D.D(IO
"-$800,000
$750,000
p" J>'1. ~ ~ I',/' ~ t- "," ~ ~ p'l./."p'b <;>" ~ <;>"/ P",/,/: ,;>" .,. ,,_ ~ .;J., ') )J' .. ,s. '" 0'" ~i" Q-- ') ,,_ .,\ oil' ,. 'S)J' rI
Page 24 The Docket December 2008
Economic Fallout
The U.S. is experiencing an unwinding of a very leveraged economy. This process of unwinding has led to a global financial crisis, and this crisis has brought forth unparalleled policy responses from central banks around the world. Chart D shows the policy response of the U.S. Federal Reserve. This response is notable for both its magnitude and its delay in coming. The current financial crisis has been ongoing for over a year, and yet effective policy response is but a few weeks old. As a result, an economic slowdown has turned into a full recession.
Chart E reflects the most recent projections for real U.S. economic growth into 2009. If these projections become reality, this downturn will be the most severe in seventeen years.
CHART E
Real Gross Domestic Product Year over Year Growth
12'O%r--------------------,
•••
CHART F
Corporate Profits After Tax with rvA and CCA Year over Year Growth
~ .. r------------------__, lO.ft ______________________________________ _
40." _____________________________________ _
. ...
.... 10 ,"
_10.K
~ ... L-_________________ ___l
The potential implications for stock market returns can be seen in Chart F. The downtrend in corporate profits is projected to be the most severe of the past two decades. Changes in stock prices have tended to be a leading indicator of economic activity and profit growth. If past cycles do repeat, then the recent upturn in stock prices may be an early indicator of the economic recovery ahead.
Back to Investing Basics
Some invest for the sport of investing. Most invest as a means to an end-saving for a home purchase, growing assets for retirement, funding a child's or grandchild's education, or providing income in retirement. A clear understanding of end goals, current position, time horizon and risk tolerance must precede the launch of any investment program. The same deliberative process should precede any decision to alter the course of a sound program already in operation.
Risk tolerance may be difficult to assess, but its impact on investment outcomes can be critical. One's tolerance for risk may not be known for sure until it has been tested. With the severity of the recent test, it is understandable that making portfolio changes can be a first response. Such changes may well be appropriate, but only if not reacting strictly to declining (or rising) markets. Before any changes are made to a sound investment program, particularly in challenging times, it is best to go back to basics first. Reaffirm goals and time horizons, as well as risk tolerance, to ensure that the investment program is appropriate.
December 2008 The Docket Page 25
Diversification Lives
In a period when asset values are falling sharply, it may seem that the time-proven investment principle of diversification is ineffective. Certainly, its benefits are muted at a sector level (e.g., large company stock funds versus small company stock funds) when most every stock is falling in price. There are clear benefits of diversification at this level throughout a full market cycle, but they can be muted at market extremes.
Portfolio diversification in many ways is "moderation in all things." It is balancing that which can grow (stock funds) with that which is secure (money market funds). Government bond funds provide some income with less price risk, while high-yield bond funds provide higher income with more price volatility.
Over the past year, a portfolio invested in U.S. Treasury notes returned +7.2% while the total U.S. stock market return, as measured by the Dow Wilshire 5000, declined -36.4%. A portfolio with 50% invested in both bonds and stocks would have returned -14.5% in this period. This is a large loss and a very disappointing outcome, but the diversified portfolio's return certainly was better than a portfolio invested 100% in the stocks.
Looking back over the past 87 years, the best one-year return from the U.s. stock market was +154.3%, and the worst one-year return for the U.s. Treasury note market was -13.1%. Fifty percent invested in each would produce a return of +70.6%, less than 100% in stocks but much better than all bonds.
So what happens if these historical returns were to repeat in the next year (this is not a forecast that they will)? The two-year return for stocks would be +27.2% and the two-year return for bonds would be -3.5%. The two-year return of a portfolio allocated 50% to each would be +20.7%. This is the benefit of diversification. 0
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Page 26 The Docket
Executive Board Meeting October 16, 2008, Minutes
by Marjorie Sher, Secretary
Members Present: Bryan Winter, President
Scott Gibson, First Vice-President
Elizabeth Rochford, Second Vice-President
Rick Lesser, Immediate Past President Perry Smith, Treasurer
Marjorie Sher, Secretary Margaret Georgevich
Tom Gurewitz Meg Marcouiller
Chris Boadt, Executive Director
1. Treasurer's Report. The Treasurer reported to the Board a positive cash flow this month due to the receipt of funds from ongoing seminars. However, there is some concern that the Criminal Law Seminar may have cost more than the revenues received. The LCBA has received approximately $1,300 in Associate and Student Membership Revenue. The statements have been sent out for the Lawyer Referral Service and the LCBA is currently receiving these revenues. The LCBA has a maturing CD, which is earning interest in the amount of 4.7% per year. When this
money is reinvested, we expect that the interest rate will be reduced dramatically. There was a motion duly made, seconded, carried and it was resolved that a) the Treasurer's Report was approved; b) the CD would be cashed out and the funds placed into our operating checking account and c) Chris Boadt obtain a second American Express Credit Card to use for LCBA business. The treasurer would continue to receive all sta tements from the credit card prior to sending them to the bar office.
2. Churchill Photography. Churchill Photography was present and taking photographs at the last LCBA membership meeting. The Board agreed that Churchill Photography would be present at the next three meetings at a cost of $175 per meeting. The Board encourages the membership to make use of the photographer at the meetings and have pictures taken with Author Scott Turow, U.s. Attorney Patrick Fitzgerald and other distinguished speakers
December 2008
and guests. 3. Prior Minutes. A motion
was duly made, seconded, carried and it was resolved that the minutes from the September 18, 2008, Board and Executive Session Meetings were approved.
4. New Members. After discussion and upon motion duly made, seconded and carried, it was resolved that the Lake County Bar Association would admit the proposed new members, associate members and student associa te members to the Association. The board, on behalf of the bar, welcomes the following new members:
Attorney Members: AmyC. Bates Lori L. Bruce Mark S. Ernst
Michael D. Froelich Reid D. Henderson Mitchell S. Sexner
Associate Members: Diana M. Clark Sheri L. Daun Gwen MacKay Lauren Soprani
December 2008
Student Associate Members: Karen Cetner Regina Diallo Erin Ethington
Shawn Forsythe Stephanie Preza
5. Outstanding Dues. The Board reviewed those members who are delinquent in paying their dues . The Board discussed the benefits of membership, and how it was unfair to the membership to allow non-paying "members" to receive such benefits. Therefore, in the future, non-paying members of the LCBA will be dropped from the roster and will not receive The Docket, the lower cost for CLE, free CLE and the other benefits that one is granted by being a paying member of the LCBA. With the request for the payment of January, 2009, dues Chris will forward to each member of the LCBA the deadline dates for payment of the dues as well as the date on which the non-paying "member" will be dropped from the roster and prohibited from receiving benefits.
The Docket
6. Disposition of Legal Documents held at the Office of the LCBA. When LCBA members Lee Sparks and Wayne Flannigan passed away, original wills and other documents were ordered to be stored at the office of the Lake County Bar Association. The wills were referenced with open probate estates and those wills were filed with the Clerk of the Circuit Court. Additional clients were located and the original wills were returned to them. The LCBA office is still holding numerous documents belonging to clients of both Attorney Flannigan and Attorney Sparks as the clients were not located and the LCBA does not know to whom to return the documents. Rick Lesser agreed to investigate the issue of what should happen with wills and other original documents when an attorney dies and the client cannot be located. Rick will submit a memorandum to the LCBA for further considera tion of the disposition of these documents.
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(847) 623-7580 FAX (847) 623-7597
Page 27
7. People's Law School. The Illinois State Bar Association has requested that the LCBA engage in the "People's Law School" to teach the community about legal issues, which in tum will make for a more informed public both in and out of court. There are certain grants which are available to bar associa tions who engage in this program. The program would be offered a) free to the public, b) on four or five consecutive weeks, c) on a specific evening of the week, and d) in the beginning of the year. Each evening would consist of one topic and would be geared toward "helping the average person understand and use the law in daily life." A motion was duly made, seconded, carried and it was resolved that the LCBA would submit an application to obtain a grant from the ISBA to fund the program and to present the same beginning early next year. This program is consistent with the bar president's theme for the year, which is "Engaging Society." The committee chairpersons are encouraged to speak to their members about volunteering their time to present a topic at the program.
8. Dissemination of Judicial Candidate Recommendations. The LCBA has routinely conducted bar polls regarding the qualifica tions of the Judicial Candidates. The LCBA has received inquiries about the results in reference to the candidates
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who are running for election on November 4, 2008. The LCBA has been verbally providing the results to any individual who calls in to the office. These bar results will be made available on the LCBA website.
9. Dinner Reception for the Retirement of Judge Jane D. Waller. Judge Waller's retirement dinner is scheduled for November 20, 2008, at Glen Flora Country Club. There was discussion about the cost and the implementation of the same. The application is online at the LCBA website, and all members are encouraged to attend to thank Judge Waller for her hard work and dedication to the Judiciary, the members of the bar and the LCBA.
10. The Campaign for Legal Services. The LCBA has supported Prairie State Legal Services and the Campaign for Legal Services in the past by contributing to the Cause. LCBA agreed to match its contribution of 2007 by contributing to the Campaign for Legal Services in the amount of $1,000 as its 2008 contribution.
11. Executive Directors Report. a. Website Update. The
website is currently being improved and Chris has decided to stay with the current website designer. The first priority of the website is to improve the Lawyer Referral Service, which is where the designer's energy is currently focused. In addition, the website front
The Docket
page can now be updated in-house, which will allow the website to be updated daily with new information when it becomes available.
b. Email Update. There were 938 emails sent from the LCBA on October 14, 2008, informing members of upcoming events. From the 938 emails, 30.7% of the emails were opened, and out of those opened, 24.2% of the members clicked on a link in the email. This is actually a good to high number of members opening the emails and clicking on the links.
c. Membership Update. There are currently 2,577 attorneys who reside or office in Lake County, of which 932 attorneys are members of the Lake County Bar Association. Chris has created a log of both 1) the areas in which these attorneys practice, and 2) the city in which their offices are located. This information will assist the Bar Association in many areas, including the sale of advertising to outside vendors.
d. LCBA Logo. Chris has met with several graphic designers and is currently soliciting artwork and logos from them in exchange for publicity.
e. Office Equipment. The LCBA is in need of updated office equipment. Chris has asked tha t this
December 2008
discussion be tabled until the end of the calender year so that we will have a better idea as to where the bar stands fiscally.
f. The Docket. Chris investigated the cost of publishing The Docket, and discovered that we have been paying almost $2.00 more per issue than the average rate for publication of the magazine. This cost does not necessarily reflect the "very best" service and quality. In addition, Chris obtained bids from graphic designers, and it appears that we are paying a low cost for the same. However, this low cost is in direct correIa tion wi th the quality of service. Therefore, Chris has recommended tha t we switch both printers and graphic designers effective with the January, 2009, issue. A motion was duly made, seconded, carried and it was resolved that the LCBA would change printers and graphic designers effective with the January, 2009, issue.
12. Board adjourned to Executive Session.
There being no additional business, a motion was made, seconded, carried and the meeting was adjourned.
December 2008 The Docket Page 29
Civil Trial and Appeals Committee
Thank you to those who attended the October 30th meeting. We had
many special guests, including Justices Ann Jorgensen and Mary Schostok from the Second District Appellate Court, and Judges Mullen, Hoffman, and Schippers from the Nineteenth Judicial Circuit Court, along with a standing-room-only crowd.
1. Rick Kessler Rick began a discussion (continued by Peter Berk, see further below) regarding Federal Rules of Evidence (FRE) Rule 502 on ediscovery and the disclosure of privileged rna terials. Please refer to the short article at the end of these minutes.
2. Case of first impression in illinois - Ruffin ex rei. Sanders v. Boler, 2008 WL 2550672 -Med-malpractice case in
volving injury to the brachial plexus nerve resulting in Erb's palsy. At issue was whether expert testimony presented on behalf of the defendants by Dr. Grimm, a professor of biomedical engineering, who was not a medical doctor, could be used to refute the failure to follow the proper standard of care by a physician and whether
October 30, 2008, Minutes
by Richard N. Kessler
such person qualified under the Frye test. The novelty of the case was that the issue tested the long established rule in Dolan v. Gal/uzo, 77 Ill. 2d 279 (1979), that "to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein." The First District Appellate Court held that since "Dr. Grimm's testimony was offered to show that the injury . .. was the result of a cause other than" the defendant doctor's negligence, Dr. Grimm's testimony, if sufficient under Frye, could stand. The court further found that Dr. Grimm's research had gained sufficient prominence that her model, upon which her testimony was based, satisfied the Frye test.
3. Jones v. Ral/os, 2008 WL 2550728 (Ill. App. 1st Dist. June 25, 2008) - Issue on admissibility of a physician witness's failure to pass the board-certification examinations. The Appellate Court recently ruled that there was no abuse of discretion In
permitting plaintiff's counsel to question a doctor about twice flunking examinations for certifications as an internist two decades
ago. There are five illinois Appellate Court opinions regarding this issue. Answer: "definite maybe."
4. Peter Berk Peter spoke about FRE 502-please refer to the short article at the end of these minutes for a recap. Justice Schostok indicated that there could be a call for a rule change through the Administrative Office of the illinois Courts-she will obtain informa tion for our next committee meeting. Judge Mullen will review the provisions of FRE 502 wi th other judges of the Nineteenth Judicial Circui t and inquire whether 502 can be incorporated into the form 218 Order.
5. Judge Brady Judge Brady discussed several recent cases, which were also distributed to the members via e-mail. • Mikolajczyk v. Ford Motor
Co., 2008 WL 4603565 (Ill. S.Ct. Docket # 104983): Ushering in a major change to product liability cases.
• Fronabarger v. Burns, 2008 WL 4446016 (Ill. App. 5th Dist. 2008) (Case No. 5-07-0433): A personal injury photo case in which
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the defendant was allowed to show photos of an accident without expert testimony.
6. New Business: a. New member - Kevin
Smith - Welcome b. Justice Schostok: The
Second District Appella te Court is hearing more oral arguments,
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and heard nine in October.
c. Brown Bag E-Discovery, February 24, 2009, providing 1 hour of CLE credit: Computer Forensics 101: During this session we will discuss the basic strategies and protocol behind a computer forensic investigation. We will help you
December 2008
better understand how to prepare, what to look for and what questions to ask a t the start of an investigation.
d. The annual CTA Seminar and Golf Outing, with 3 hours of CLE credit, will again be at the Biltmore Cc, this time the week after Memorial Day, May 28,2009. 0
Federal Rule of Evidence 502 and Privi leged Materials
by Matthew R. Rechner, Peter T. Berk & Thomas P. Hett of McDonald Hopkins LLC
Recently, Rule 502 was added to the Federal Rules of Evidence. The
Rule seeks to harmonize the law of privilege waiver in federal courts and also provide litigants with additional options to limit the costs associated with the review of voluminous electronically stored information or "ESI." Rule 502 thus directly impacts how corporations and individual litigants should act both before and during a lawsuit.
Given that it is a new rule, it is unclear how federal and state courts will interpret the rule and apply it to the variety of situations that arise in litigation. While a move by the State courts to institute a similar rule, either through a change to the Supreme Court Rules or a local
rule in each judicial district, would provide greater uniformity, attorneys should be proactive in utilizing the benefits of Rule 502 when appropriate. In that vein, parties in State court may consider seeking the entry of an order by the court (either agreed or through a motion) incorpora ting the beneficial provisions of Rule 502 and making them explicitly applicable to the State court case.
History and Background
Before the enactment of Rule 502, producing documents during the discovery phase of litigation was an expensive endeavor. Significant attorneys' fees were incurred to review each and every page of a prospective document production
for responsiveness as well as privilege. The risks associated with the production of a privileged document could range from waiver of that communication to the waiver of privilege protection of every document dealing with the same subject matter. These risks were compounded by the uncertainty among the courts regarding what constituted waiver - intentional production, careless production, or any production regardless of fault. The advent of e-discovery only exacerba ted costs and risk by, at times, exponentially increasing the amount of information potentially responsive to discovery requests.
Rule 502 and What It Says
Rule 502 contains four main
December 2008
provisions. First, the Rule provides tha t "subject rna tter waiver" occurs only in the case of an intentional disclosure, and only if, in fairness, the nondisclosed communications or information should be considered with that which was disclosed. Thus, the Rule specifically rejects subject matter waiver in the case of inad vertent disclosure. Under Rule 502, there is no subject matter waiver unless the disclosure was intentional and fairness dicta tes tha t other undisclosed communications be produced. Subject matter waiver will only occur if the undisclosed document(s) must, in fairness, be considered with the intentionally disclosed document (e.g. to prevent a misleading disclosure).
Second, Rule 502 makes clear that an inadvertent disclosure will not waive privilege or work product protection as long as the producing party took "reasonable steps to prevent disclosure" and "promptly took reasonable steps to rectify the error." Reasonable steps to prevent disclosure should be addressed in a company's litigation readiness plan and implemented by outside counsel at the onset of litigation. The notes to Rule 502 indicate that "reasonable steps to rectify the error" only need to be taken if the litigant has reason to believe privileged information may have been produced.
Third, Rule 502 outlines the consequences of disclosures in state and federal proceedings, as follows: (1) the Rule is binding on state courts and federal
The Docket
court-mandated arbitrations proceedings where the initial disclosure occurs in a federal proceeding; (2) where the initial disclosure occurs in state court, and the waiver issue is being decided in a subsequent federal proceeding, the decision is governed either by Rule 502 or state law, whichever is most protective against waiver; and (3) the Rule has no effect where the initial disclosure occurs in state court and the waiver issue is being decided in a subsequent sta te proceeding.
Fourth, Rule 502 increases the effectiveness of "clawback" and "quickpeek" agreements (agreements designed to decrease costs of review while protecting privileged communications against claims of waiver) by making such agreements binding on third parties and subsequent matters. However, these clawback or quickpeek agreements must be incorporated into a court order in order to be binding on thirdparties. Without the court order, such agreements may be found to be ineffective against claims of waiver by subsequent litigants who were not parties to the original agreement.
What You Can Do To Benefit
Application of Rule 502 requires that a litigant show the court that the party took "reasonable steps to prevent disclosure." The Rule does not explicitly define what constitutes "reasonable steps to prevent disclosure. " However, companies can prepare ahead of
Page 31
time by creating a litigation readiness plan, working closely with outside counsel to develop cost-effective means for gathering potentially responsive documents and culling the privileged documents using automated or semi-automated filters . Additionally, proper data retention and destruction policies are a must. Implementation and consistent enforcement of these poliCies will help organize your organization's documents and make required privilege reviews less costly and decrease the risk of accidental disclosures.
Lastly, preventative measures can be taken even after the commencement of a lawsuit. Your company should confirm its attorneys possess a thorough understanding of electronic discovery best practices. They should know how to deploy available software to effectively and efficiently conduct privilege reviews through the millions of pages typical in today's litigation. Additionally, clawback and quickpeek agreements offer excellent safeguards against the increased risk of inadvertent disclosures and help to reduce costs at the same time. Just don' t forget to have the court sign off on the agreement first.
For more information concerning how you can avail yourself of the benefits associated with the new Federal Rule of Evidence, please contact Richard Kessler at rkessler@mcdon aldhopkins.com or Peter Berk at [email protected] of McDonald Hopkins LLC. 0
Page 32 The Docket December 2008
LC ~
BAR BULLETIN BOARD
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Virtual Tour www.~properties.com (847) 680-4740
OFFICE SUITES FOR RENTDOWNTOWN WAUKEGAN-Walking distance to Lake County Courthouse. 2 suites completely renovated each 1,200+S.F. with 3 offices, conference room, reception area, kitchen, 2 bathrooms, central heat and air, high speed internet, 1st floor handicap accessible, parking in both front and back. Call (847) 548-5723.
2 VACATION CONDOS AVAILABLEOrlando, Florida-3 bedrooms-3 miles to Sea World, Disney, etc. $1200 a week. Williamsburgh, Virginia-4 bedrooms$1250 a week. Call Rick Scott at (847) 234-6680.
HISTORIC BUILDING OFFICE SPACE The law office space currently occupied by Roach, Johnston & Thut at 516 N. Milwaukee Avenue in Libertyville is available sometime around Fall 2008. The space includes four premium quality private offices, conference room, kitchen, storage, and administrative area. It includes 2,188 square feet just off Milwaukee A venue in a restored vintage building in Libertyville's Victorian downtown. Seeking a lead lawyer or law firm as a tenant, one or more attorneys are available as sub-tenants. Contact Mary at (847) 549-0600 for appointment to view.
DOWNTOWN WAUKEGAN - Across from Courthouse, 275-1800 square feet. Janitorial provided. Well maintained. Space available. 33 N. County & 325 Washington. Please call Ron Pollack at (847) 482-0952.
WAUKEGAN-Professional office space available for immediate lease. Upper level office space across from main courthouse. Individual offices at the prime location include utilities. Rent per office is $550.00 per month. Please call (847) 662-4321 for further information.
ATTORNEYS' TITLE
GUARANTY FUND. INC.
WWW.ATBP.CDM
Contact us for more information.
Philip Krawiec, Business Development Representative Dim:t Phone: 312.752.1219 J E-mail: [email protected]
Offices in: Champaign I OUago Loop I 0Uag0 North Side I libertyoille Lombard I Mt. Prospect I North lliYenide I O. Lawn Schaumburg I Wheaton I BeDeville I Madison, W ...
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Please call (847) 244-3143 to confirm date, time and location of event before you attend.
12/11 Brown Bag Seminar- Workplace Harassment 12:15 p.m. C201
12/17 Criminal Law Committee Meeting 12:00 p.m. LCBA Office
12/18 Civil Trial & Appeals Committee Meeting 5:00 p.m. McCormick's
12/18 Board of Directors Meeting 12:00 p.m. LCBA Office
12/19 Jay Ukena Swearing-In Ceremony Lake County Courthouse
12/24-1/2 LCBA Office Closed (Holiday Break)
1/7 Real Estate Committee Meeting 5:00p.m. In-Laws
1/8 Brown Bag Seminar 12:00 p.m. C201
1/l3 Wills, Trusts & Probate Committee Meeting 12:00 p.m. C307
1/14 Legal Aid Committee Meeting 12:00 p.m. Prairie State Legal Offices
1/15 Board of Directors Meeting 12:00 p.m. LCBA Office
1/19 LCBA Office Closed
1/21 Criminal Law Committee Meeting 12:00 p.m. LCBA Office
1/21 Family Law Committee Meeting 12:00 p.m. C103
If you are a C01ll11littee Chair and wisTI to chal1ge a meetil1g date or time, please contact the LCBA Office at (847) 244-3143.
LAKE COUNTY BAR ASSOCIATION 7 N. County Street Waukegan, IL 60085 Retum Service Requested
*******·*** .... ··ECRLOT**C-007 Hon. Raymond J. McKoski Nineteenth Judicial Circuit 18 N County St Waukegan. IL 60085-4304
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