Publications

Section Newsletter Articles on Civil Law

What hath Hudson wrought? By Patricia A. Zimmer Tort Law, April 2010 If you decide that you must take a voluntary dismissal in the face of a prior dismissal on the merits of some claim in your suit, an Agreed Order of voluntary dismissal should reference Hudson and state that the defendants are waiving the res judicata defense should plaintiff decide to refile.
Decisions illustrate difficulties of slip and fall cases By Robert T. Park Civil Practice and Procedure, March 2010 Two recent decisions illustrate the requirements and attendant difficulties of successfully prosecuting a plaintiff’s personal injury claim arising from a slip and fall accident in Illinois.
Recovering the value of “free” caretaking by an adult’s parents By Dennis M. Lynch Tort Law, March 2010 A tortfeasor cannot seek to shirk responsibility for caretaking services because the caretaking was provided by the adult’s parents, and not by some third party.
Thornton, known for emotional distress, is notable for the Single Recovery Rule and set offs By John B. Kincaid Civil Practice and Procedure, March 2010 Thornton v. Garcini, (2009 WL 3471065) was decided by the Illinois Supreme Court in a concise compact opinion authored by Justice Kilbride on October 29, 2009. The case raises issues unique to the civil practice arena as well as the medical negligence forum. As of the preparation of these remarks, the opinion remains subject to revision or withdrawal.
Admissibility of vehicle impact photographs By Timothy W. Kelly Tort Law, February 2010 The standard for the admissibility of photographs of a motor vehicle collision depicting minimal damage to the vehicles in a personal injury trial has been debated since the First District Appellate Court’s opinion inDicosola v. Bowman, 342 Ill. App. 3d 530 (1st Dist. 2003).
Forum non Conveniens clarified: Glass v. DOT Transportation, Inc. By Hon. Daniel T. Gillespie and Matthew Friedlander Civil Practice and Procedure, February 2010 For many judges and lawyers in Illinois, the doctrine of forum non conveniens appears to be a convoluted discretionary tool. Unlike a motion to transfer venue, which is a purely procedural matter, the doctrine offorum non conveniens allows the judge to transfer a case if he or she decides that hearing a case in the plaintiff’s choice of forum is unfair to the defendant or the public. The doctrine itself applies on an interstate and intrastate basis so long as venue is proper in both forums.
Nonlawyer advocates in administrative proceedings By Jeffrey A. Parness Civil Practice and Procedure, February 2010 In Grafner v. Department of Employment Security, 914 N.E.2d 520 (1st Dist. 2009), the court considered whether a nonlawyer hired from an employer services company could represent a former employer in an administrative proceeding before the Department of Employment Security (DES) in a case involving disputed employment compensation benefits allegedly owed a former employee.
Tort immunity in medical malpractice cases By Thomas Q. Keefe, III and Thomas Q. Keefe, Jr. Tort Law, February 2010 Public entities and public employees are immune from allegations of failure to diagnose and misdiagnosis, as well as allegations of failure to perform adequate exams (but not for improper treatment after diagnosis).
Award of costs to defendants as a condition to granting plaintiffs’ motion for voluntary dismissal By Bridget A. Mitchell Civil Practice and Procedure, January 2010 After reviewing the facts of the case and applicable law, the appellate court affirmed the trial court’s decision but modified the court’s order to state that costs awarded were due at the time of refiling the lawsuit but not as a condition to refiling the lawsuit.
Fourth District discredits 30-year “legitimate-business-interest” test and ignores own ruling for restrictive covenants By George S. Bellas and A. Patrick Andes Civil Practice and Procedure, January 2010 Creating a district split, the Illinois Fourth District Appellate Court, in an opinion authored by Justice Steigmann, disregarded its own precedent and declared the “legitimate-business-interest” test “no longer valid, if it ever was.”
IPI No. 105.01: Did the Supreme Court Committee fix it or break what wasn’t broken? By Daniel P. Wurl Tort Law, January 2010 A look at the reasons for the revisions made to the IPI 105.01 by the Supreme Court Committee, the appellate court decisions on which the Committee relied for the revisions, and the four appellate court cases that have addressed IPI 105.01 since the 2006 revisions were made.
Appellate court rejects prescribed means exception to natural accumulation doctrine By John J. Holevas Civil Practice and Procedure, December 2009 In Reed v. Galaxy Holdings, Inc., 2009 WL 2590089 (1st Dist., Aug. 20, 2009), the First District Appellate Court affirmed summary judgment in favor of the defendant, rejecting adoption of the “prescribed means” exception to the common law natural accumulation doctrine.
Circuit court had no jurisdiction to consider untimely filings By Robert T. Park Civil Practice and Procedure, December 2009 In Keener v. City of Herrin2009 WL 3212336 (Oct. 8, 2009), the city police arrested Chelsea Keener, an 18-year-old girl, for underage intoxication.
eDiscovery issues: Authenticating e-mail produced in discovery By Scott A. Carlson and Jay C. Carle Civil Practice and Procedure, December 2009 This is the first in a series of articles about electronic discovery or “eDiscovery.” eDiscovery means a lot of different things to a lot of different people and each article will take on some discrete aspect of eDiscovery.
The ethics of fee sharing in tort law cases By Albert E. Durkin Tort Law, October 2009 In the field of plaintiff personal injury litigation, a substantial amount of business is received on a referral basis. Tort practitioners commonly are referred cases from fellow lawyers who do not practice in that chosen field.  
When consultants’ opinions are discoverable By Lauryn E. Parks and James F. McCluskey Tort Law, October 2009 The purpose of Illinois Rule 201(b)(3), as well as other comparable rules, is focused on protecting the identity of the consultant in order to encourage the communication of expertise. 
All rules are made to be broken By Maxine Weiss Kunz Young Lawyers Division, August 2009 A fictional scenario illustrating that when you find yourself between a rock and a hard place, perhaps it is time for the exception to become the rule.
Choice of law in multi-state tort cases By Jeffrey A. Parness Civil Practice and Procedure, January 2009 Gregory v. Beazer East provides a useful reminder of basic choice-of-law principles, including depecage and the “factual contacts” test.
Federal caselaw update Employee Benefits, December 2008 On October 7, 2008, the Supreme Court heard oral argument in Kennedy v. Plan Admin. for DuPont Savings and Invest. Plan (No. 07-636).
Maintaining separate actions in various judicial circuits in Illinois and/or other states By John J. Holevas Civil Practice and Procedure, December 2008 In re: Marriage of Gary, 894 N.E.2d 809 (2d Dist. 2008), the Appellate Court for the Second District clarified under what circumstances a trial court may enjoin the parties to a suit from maintaining separate causes of action in multiple Illinois circuit courts or in other states. 
Unsettling ruling on settlement agreement: Common provision declared unenforceable as penalty By J. Matthew Pfeiffer Civil Practice and Procedure, October 2008 A recent opinion from the Second District of the Appellate Court of Illinois holds that a clause in a settlement agreement providing for an acceleration of the amount due in the event of a breach thereof without any express reasonable basis for such acceleration constitutes a penalty and, therefore, is unenforceable.
Wills v. Foster and the “reasonable value” approach to the collateral source rule By Mark Rouleau and Ehsan Eftekhari Civil Practice and Procedure, August 2008 The collateral source rule has been the subject of numerous appellate cases in Illinois in the last several years, recently culminating in the unanimous Illinois Supreme Court decision of Wills v. Foster, Docket No. 140538, 2008 WL 2446696 (June 19, 2008), written by Chief Justice Thomas. 
Who should speak on civility in civil litigation? By Kimball R. Anderson Civil Practice and Procedure, June 2008 In September 2005, the Supreme Court of Illinois announced two new programs aimed at promoting lawyer civility.
The First District examines standards for reviewing Section 2-615 motions in legal malpractice cases and clarifies the solvency rule By Kimberly A. Davis Civil Practice and Procedure, April 2008 In July 2007, the First District Appellate Court addressed the sufficiency of a legal malpractice complaint in Visvardis v. Ferleger.
“Tactical gamesmanship” and trial practice: Can it be good advocacy? By Patrick M. Kinnally Civil Practice and Procedure, April 2008 Playing by the rules applies to each party regardless of whether they are on opposite sides of the aisle. If it becomes otherwise, the keystone of those rules will be undermined, thereby making the trial process an also-ran and other than what all litigants, or their counsel, expect.
Trial court erred in allowing defendant to withdraw rejection of arbitration award By John J. Holevas Civil Practice and Procedure, April 2008 The Second District Appellate Court recently reversed a lower court’s decision in Stemple v. Pickerill, which allowed the defendant to withdraw his rejection of an arbitration award made pursuant to the court annexed mandatory arbitration program, while denying the plaintiffs from filing their own rejection of such an award.
Impropriety of the “otherwise careless and negligent” allegation By Anthony Longo Tort Law, March 2008 This article will explain why defense counsel should move to strike this allegation rather than answering it with a general denial. The article will conclude with a form motion to strike that defense counsel can use to try for dismissal of the allegation.
Motions attacking motions: A plea to end the violence By Anthony Longo Civil Practice and Procedure, March 2008 The author suggests that next time we are vexed by another party’s motion, we should remember IRMO Sutherland and Wolff and resist the urge to move to strike or dismiss. Such a motion is a nullity and unnecessarily clogs the motion calendars of the circuit court.
New tort theory approved by Illinois Supreme Court By Raymond A. Fylstra Corporate Law Departments, June 2007 In Forsyth v. Clark USA, the Illinois Supreme Court held that “direct participation liability” against corporate shareholders is a valid theory of recovery.
York v. Rush Presbyterian St. Luke’s Medical Center—Apparent agency revisited and refined By Martin L. Glink Tort Law, April 2007 Shortly before retiring from her illustrious career, Justice Mary Ann McMorrow authored the opinion in York v. Rush Presbyterian St. Luke’s Medical Center, addressing the doctrine of apparent agency.