"The Brief" - The ALA Blog

  • September 19, 2018 11:33 AM | Anonymous member (Administrator)

    On Monday, September 24, 2018 at 5 p.m., the Advocates Society, the Association of Polish American Lawyers, will host currently sitting Appellate Justice Bogdan Jedrys of Poland, who will discuss the current situation in the Polish judicial system. Justice Jedrys is a member of the independent Association of Polish Judges and will speak after a short general meeting.


    The meeting will be held at Hinshaw & Culbertson, LLP, 151 N. Franklin St., Suite 2500, Chicago, Illinois 60606. There is no fee to attend, but participants must register in advance. To register, please RSVP to the Advocates Society President Kristen Kozlowski Lyons at attorneykristen@gmail.com.

  • September 18, 2018 8:22 AM | Anonymous member (Administrator)

    The Illinois Supreme Court's September Term began on Monday, September 10th.  The Term will include oral argument in 12 civil cases and 10 criminal cases between September 11th and September 19th.  Below is a listing of the 12 civil cases that will be heard:

     


    Thursday, September 13, 2018:


    Sienna Court Condominium Assoc. v. Champion Aluminum Corp., No. 122022

    Beaman v. Freesmeyer, No. 122654

    Carmichael v. Laborers’ & Retirement Employees Annuity & Benefit Fund of Chicago, No. 122793 (cons.)

    Stanphill v. Ortberg, No. 122974


     


    Tuesday, September 18, 2018:


    Gregg v. Rauner, No. 122802

    Piccioli v. Board of Trustees of Teachers Retirement System, No. 122905
    Gonzalez v. Union Health Services, Inc., No. 123025
    First Midwest Bank v. Cobo, No. 123038
    Sperl v. Toad L. Dragonfly Express, No. 123132

     


    Wednesday, September 19, 2018:


    A&R Janitorial v. Pepper Construction, No. 123220

    Palm v. Holocker, No. 123152

    Wingert v. Hradisky, No. 123201

                                                                


    Below is a summary of one of the civil cases to be argued.  As always, more information about all pending criminal and civil cases is available in the ALA's Cases Pending newsletter.






    Stanphill v. Ortberg


     


    This Petition presents the question of whether, in a professional negligence action, a defendant can be civilly liable notwithstanding the lack of reasonable foreseeability of the plaintiff’s injury. The plaintiff below – the administrator of a decedent’s estate – initiated proceedings in Winnebago County, asserting that the defendants – a hospital and a clinical social worker employed by the hospital – negligently failed to diagnose the decedent as suicidal, leading to his ultimate death by suicide. The jury returned a general verdict in favor of the plaintiffs, but answered, in a special interrogatory, that the decedent’s suicide was not reasonably foreseeable. The circuit court thereupon entered a verdict in favor of the defendants.


     


    The plaintiff appealed and the Second District Appellate Court reversed, concluding that the jury’s answer to the special interrogatory was not inconsistent with its general verdict. The Court found that the special interrogatory was improper insofar as it asked the jury to determine whether the decedent’s suicide was reasonably foreseeable to the defendant, rather than to a reasonable person.  In so holding, the Second District departed from the First District’s holding in Garcia, which affirmed the entry of a judgment in favor of the defendant under analogous circumstances. There, the jury returned a general verdict for the plaintiff, but answered, in a special interrogatory, that the decedent’s suicide was not reasonably foreseeable to the defendant, causing the circuit court enter judgment in favor of the defendant. Garcia v. Seneca Nursing Home, 2011 IL App (1st) 103085.


     

    In their petition, Defendants argue that the Second District, in analyzing the special interrogatory, incorrectly held thatforeseeability in a professional negligence case should be based upon a reasonable person standard and that the general verdict could not be squared with the jury’s special interrogatory answer.


  • September 12, 2018 12:43 PM | Anonymous member (Administrator)
    On September 13, 2018, from 5:30 p.m. to 9:30 p.m., the Hispanic Lawyers Association of Illinois, the Puerto Rican Bar Association, NLG Chicago, and The Puerto Rican Agenda will be hosting a fundraiser to support the recovery in Puerto Rico at Humble Bar, 3018 West North Avenue, Chicago, Illinois. 


    Tickets are available at www.tickettailor.com/events/nlgchicagoandayudalegal/185138


    Donations may be made at www.latinojustice.org/en/donate 



  • September 11, 2018 8:50 AM | Anonymous member (Administrator)

    The seminar, Appellate Practice for the Trial Attorney, scheduled for Wednesday, September 12, 2018, from 1:00 p.m. until 5:00 p.m. at Spalding Pastoral Center, 419 NE Madison Ave. in Peoria, Illinois, has been cancelled. 

  • August 29, 2018 8:13 AM | Anonymous member (Administrator)

    The ALA is honored to serve as a co-sponsor of the Diversity Scholarship Foundation’s reenactment of Mendez v. Westminster, a landmark civil rights case that addressed issues of equal protection and social equality.

    The event will be held on Wednesday, September 5, 2018, from 5:00 p.m. to 7:00 p.m. at Loyola University School of Law, 25 East Pearson Street in Chicago. There will be a cocktail reception from 5:00 p.m. to 6:00 p.m., followed immediately by the program from 6:00 p.m. to 7:00 p.m. Entry is FREE; seats are limited. 

    To learn more about the event, please visit the Diversity Scholarship Foundation website.

    To register, please click here.

  • August 10, 2018 9:49 AM | Anonymous member (Administrator)

    You can join your fellow lawyers in helping children from Englewood become a better readers. Lend-A-Hand Tutoring at the CBAis seeking volunteer tutors for its one-to-one tutoring program, which meets on Tuesdays from 5:30 to 7:00 p.m. at the Chicago Bar Association, 321 S. Plymouth Court in Chicago. Orientations will be on September 4 and 11. Program is sponsored by Lawyers Lend-A-Hand to Youth. 


    For more info, contact Jenna Meyers at (312) 554-2053, email jmeyers@lawyerslendahand.org

  • July 11, 2018 8:24 AM | Anonymous member (Administrator)

    D.C. Circuit Court Judge Brett Kavanaugh has been nominated to replace retiring Justice Anthony Kennedy on the Supreme Court of the United States. 

    Judge Kavanaugh was appointed to the D.C. Circuit Court of Appeals in 2006, and is a graduate of Yale Law School.

  • June 28, 2018 11:35 AM | Anonymous member (Administrator)
    United States Supreme Court Justice Anthony Kennedy has sent a letter to President Donald Trump, informing the president that he will retire from the High Court on July 31.


    President Trump has stated that he will select Justice Kennedy's replacement using a list he initially created during his 2016 presidential campaign. The list includes Judge Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit, as well as several other United States appellate court judges, multiple state supreme court justices, and a current United States senator. 


  • June 18, 2018 3:24 PM | Anonymous member (Administrator)

    By Katherine A. Grosh

    Levin Ginsburg

    In Board of Managers of Northbrook Country Condo. Ass'nv. Spiezer, the Board of the Northbrook Country Condominium Association filed a forcible entry and detainer action against June Spiezer, as trustee of the June Spiezer Revocable Trust, seeking possession and common expenses owed on her condominium unit. 2018 IL App (1st) 170868, ¶¶ 1, 6. After the trial court entered a default judgment and order of possession in the Board’s favor, her son, Joseph Spiezer, successfully moved to vacate the default judgment and order of possession. Id. at ¶ 6.  Joseph then moved to quash service, which the trial court denied, finding that Joseph submitted to the court’s jurisdiction by filing the motion to vacate. Id. at ¶¶ 1, 6. After Joseph, as trustee of the June Spiezer Trust, quitclaimed the condominium unit to himself, the trial court entered another order of possession in favor of the Board, which Joseph timely appealed. Id. ¶¶ 2, 7. That appeal was later dismissed for want of prosecution. Id., citing Board of Managers of Northbrook Country Condominium Ass'n v. Spiezer, No. 1–13–0573 (Aug. 28, 2013) (unpublished summary order under Illinois Supreme Court Rule 23(c)).


    Nearly three years later, Joseph filed a section 2-1401 petition to vacate the second order of possession on the grounds that the order was void because his mother was deceased when the complaint was filed, and her beneficiaries were not named as parties to the suit. Id. ¶ 8. After voluntarily withdrawing the section 2–1401 petition, Joseph filed a “motion to intervene” in the forcible entry and detainer case, effectively re-arguing his section 2-1401 petition and asserting that he should be allowed to intervene to present a motion for an accounting and obtain judgment in his favor for rental income the Board received on the property after entry of the order of possession. Id. Following several agreed continuances and a substitution of attorneys for Joseph, Joseph filed another motion seeking an accounting and asking the trial court to vacate the judgment for possession. Id. at ¶ 9. The trial court dismissed Joseph's motions for lack of jurisdiction. Id.


    Joseph appealed from the order dismissing his motions and from the order denying his motion to reconsider, arguing: (i) the trial court had jurisdiction to rule on his motions, and (ii) the order of possession was void and the complaint should be dismissed. Id. at ¶¶ 3, 9.


    The Appellate Court found that neither Supreme Court Rule 303 nor the doctrine of revestment conferred jurisdiction over Joseph’s appeal. Id. at ¶ 11. “Having let his appeal on these issues lapse,” the Appellate Court stated, “Joseph cannot exhume his case by motion, and we must dismiss.” Id. at ¶ 3.  The Court reasoned:


    "Joseph argues that the trial court had jurisdiction to address the merits of his motion to vacate the January 16, 2013, order of possession because 'a void order may be attacked at any time or in any court, either directly or collaterally.' Joseph asserts the order of possession was void because the Board failed to properly serve the trust, trustees, or beneficiaries. But in 2012, the trial court denied Joseph's motion to quash service, finding that he submitted to the court's jurisdiction by filing the motion to vacate its first order of possession. The trial court entered a second order of possession, and Joseph timely appealed. This court then dismissed the appeal for want of prosecution. Spiezer, No. 1–13–0573." Id. at ¶ 13.


    Notwithstanding Joseph’s timely appeal from the order of possession, the Appellate Court characterized Joseph’s attempt to file motions to vacate three years later as “an end-run around his long abandoned appeal.” Id. at ¶ 14. Citing case law holding that where an appeal is dismissed, a party may not file a section 2-1401 petition in the trial court to circumvent the requirements of Rule 303, the Appellate Court found that Joseph’s motion to vacate the order of possession filed in the trial court “does not create a right to appeal under Rule 303 nor … provide us with any other rule that permits him to relitigate issues already decided in 2013 and already timely appealed, albeit dismissed for want of prosecution.” Id.


    The Appellate Court’s analysis concluded with a brief review of the revestment doctrine, which applies only in certain “limited circumstances” not applicable here, i.e., where both parties “(1) actively participate in the proceedings, (2) fail to object to the untimeliness of the late filing, and (3) assert positions that make the proceedings inconsistent with the merits of the prior judgment and support the setting aside of at least part of that judgment.” Id. at ¶ 15, citing People v. Bailey, 2014 IL 115459, ¶ 25.


    As an aside to the jurisdiction issues, the Appellate Court pointed out that Joseph's attorney’s brief “disparage[d] opposing counsel and ma[de] a number of statements that call into question the trial and appellate court's integrity.” 2018 IL App (1st) 170868, at ¶ 4. Specifically, throughout his opening and reply briefs, Joseph’s attorney called her opposing counsel’s arguments “incoherent,” “bizarre,” “nauseating,” “nonsensical,” and a “word salad.” The Appellate Court stated: “His remarks serve no purpose other than to demean or insult the other side. We expect all attorneys to behave with respect and civility in their written as well as oral interactions with opposing counsel and with the court.” Id. at ¶ 18. Because of the “acerbity of his statements,” including what the Appellate Court deemed “poisonous darts [aimed] at this court,” which went so far as to accuse the courts of ignorance and corruption, and his past behavior before the appellate court, Joseph was ordered to show cause why Rule 375 sanctions should not be imposed for his statements which “flout the norms of proper discourse before the appellate court.” Id. at ¶¶ 19-22.


    In a Supplemental Opinion issued in the wake of the show cause order, the Appellate Court noted that Joseph’s lawyer failed to respond. Finding that he waived his right to respond, the Court sanctioned him by requiring him to (i) pay a fine to the Clerk of the First Appellate District and (ii) attend a minimum of six hours of civility and professionalism courses, and repeating the words of U.S. Supreme Court Chief Justice Warren Burger, stated: “[L]awyers who know how to think but have not learned how to behave are a menace and a liability, not an asset, to the administration of justice.” 2018 IL App (1st) 170868, at ¶¶ 26-27, citing Warren E. Burger, The Necessity For Civility, 52 F.R.D. 211, 215 (1971). The Appellate Court continued: “We are not dealing with a self-represented litigant here, but a licensed and experienced attorney who should know what constitutes the limits of proper argument. The statements addressed in the show cause order are not argument, but accusations and wild and unsubstantiated accusations at that. To let them pass without admonishment would be perceived as condoning [those] accusations, and serve to undermine the judiciary's legitimacy, authority, and persuasiveness in the minds of the public and his client” 2018 IL App (1st) 170868, at ¶ 26. The Court ordered that the clerk send a copy of the opinion to the Attorney Registration and Disciplinary Commission. Id. at ¶ 28.


  • June 13, 2018 8:48 AM | Anonymous member (Administrator)

    On May 25, 2018, the Illinois Supreme Court amended Civil Appeals Rules 341 and 352.

    Rule 341 – Points not argued are forfeited, not waived.

    Rule 341 was changed slightly http://illinoiscourts.gov/SupremeCourt/Rules/Amend/2018/341_052518.pdf

    In subsection (h)(7), the rule previously provided that:

    “Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal where evidence may be found. Citation of numerous authorities in support of the same point is not favored. Points not argued are waivedand shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”

    The amended subsection (h)(7) now provides that:

    “Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal where evidence may be found. Citation of numerous authorities in support of the same point is not favored. Points not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”

    This change reflects the appropriate usage of the terms “waiver” and “forfeiture.” Waiver is the intentional relinquishment of a known right, i.e., an intentional act, whereas forfeiture is the failure to make a timely assertion of a right. Gallagher v. Lenart, 226 Ill. 2d 208, 229 (2007). Litigants who fail to appreciate the distinction between the two concepts in their briefs risk criticism. See, e.g., Mich. Wacker Assocs., LLC, v. Casdan, Inc., 2018 IL App (1st) 171222, ¶ 30 n.3 (noting that, when both parties on appeal raised numerous instances of waiver, that “[t]he parties have failed to differentiate between the concepts of waiver and forfeiture.”).

    Rule 352 – The Court must now specify why oral argument is not necessary, and oral argument is required if one justice on the panel requests it.

    Rule 352 was also changed, but substantially http://illinoiscourts.gov/SupremeCourt/Rules/Amend/2018/352_052518.pdf

    In subsection (a), the rule previously provided that:

    “After the briefs have been filed, the court may dispose of any case without oral argument if no substantial question is presented, but this power should be exercised sparingly.”

    The amended subsection (a) now provides that:

    “After the briefs have been filed, the court may dispose of any case without oral argument if no substantial question is presented, but this power shall be exercised sparingly and only upon the entry of a written order stating with specificity why such power is being exercised in the affected case. Notwithstanding the foregoing, oral argument shall be held in any case in which at least one member of the panel assigned to the case requests it.”

    This change appears to reflect a desire by the Illinois Supreme Court to have the Illinois Appellate Courts hold more arguments. Instead of a generic oral argument waiver order, the amendment seems to require a more specific oral argument waiver order detailing why argument won’t be held in a certain case. Additionally, the rule now makes it clear that oral argument must occur in a case if one justice requests it regardless of whether he or she is the authoring justice. 

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

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