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Civil Practice and ProcedureThe newsletter of the ISBA’s Section on Civil Practice & Procedure

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Newsletter articles from 2012

Can a statutory jury instruction (60.01) include a driver’s license restriction? By John B. Kincaid January 2012 To include a statutory instruction in 60.01, the statute must be intended to protect against the type of injury in question and there must be a causal connection to the statute and the injured party must be within the class of protected persons.
Can we e-file a notice of appeal By John B. Kincaid July 2012 On April 16, 2012, the Second District in VC&M, LTD v. Andrews, held that an e-filed notice of appeal from DuPage County was ineffective to confer jurisdiction upon the Appellate Court.
Confidential settlements vs. non-settling defendants’ right to know By John J. Kohnke November 2012 A look into the current approach taken by litigants and various Illinois courts in balancing the confidentiality clauses of settlement agreements and the remaining defendants' desire to obtain information regarding possible setoffs that they may be entitled to prior to trial or a preliminary pre-trial conference.
The contractual right to appeal mandatory arbitration awards by invoking the trial de novo provision in underinsured-motorist coverage By James V. Krejci June 2012 The recent case of Phoenix Insurance Company v. Rosen settled conflicting Illinois Appellate decisions regarding trial de novoprovisions. 
Discovery of social media: Document requests in a friend request world By Timothy J. Chorvat and Laura E. Pelanek April 2012 To date, there are no reported cases in Illinois regarding the discoverability of social media data, although these materials are being produced in discovery and introduced into evidence.
Does a corporation need a lawyer in state court? By Patrick M. Kinnally December 2012 Unless you are in a small claims trial court, the Illinois maxim as to corporate representation is ambiguous.
Does your claim allege educational malpractice? By Hon. James Fitzgerald Smith and Julia Illman Maness August 2012 Does an injured person have a cognizable claim for negligence against a former teacher for an injury occurring after instruction that the injured person claims can be traced to poor teaching?
Equitable apportionment applies to subrogation claims January 1, 2013 By Mark Rouleau December 2012 Plaintiff’s attorneys and their clients will welcome this statutory change as an advancement of justice in tort recoveries for injured persons.
False and fictitious names in pleadings: How much does it matter? By Patrick M. Kinnally September 2012 The recent opinion of Rogasciano Santiago, a/k/a Juan Ortiz v. E. W. Bliss Company sheds some light, albeit little, on what we, as attorneys, must do when our clients fabricate their own identity, and then use that identity when filing litigation in our state trial courts. 
Foreclosure of claims: The Doctrine of Judicial Estoppel By Patrick M. Kinnally February 2012 As practitioners, we must be mindful of the fact that inconsistency by our clients in prior and subsequent litigation before a trial court or a quasi-judicial tribunal may lead to the loss of consideration of a right to recovery on its merits.
Gotta get back in time: Limitations of rescue by the savings statute By Adam B. Whiteman February 2012 If you intend to voluntarily dismiss a case with the intent of re-filing under the savings statute, you should be very careful to populate the dismissed complaint with as many facts and issues as possible. 
Guardian may seek permission for dissolution of marriage By Robert T. Park October 2012 IKarbin v. Karbin, the Illinois Supreme Court reversed its prior precedent and held that a guardian may request court permission to seek dissolution of the ward’s marriage.
Hanks v. Cotler: An example of the “apogee of disingenuousness” By Hon. Daniel T. Gillespie and Daniel J. Bishop May 2012 Justice Terry Lavin’s opinion in Hanks v. Cotler constitutes an excellent play-by-play analysis of the intersection of the statutes of limitations and the statutes of repose with the common-law discovery rule. 
Illinois Appellate Court affirms preliminary injunction requiring American Airlines to allow ticket sales through Orbitz.Com: Travelport, LP v. American Airlines, Inc. By Sara Siegall June 2012 ITravelport, LP v. American Airlines, Inc., the court confirmed that, in a commercial case, plaintiff’s loss of reputation and goodwill can satisfy both the “irreparable harm” and “inadequate legal remedy at law” elements required for the entry of preliminary injunctive relief.
Is a duty owed? Adjoining landowners, passers-by, falling limbs and trees By Patrick M. Kinnally September 2012 The Appellate Court in Stackhouse v. Royce Realty and Management had little problem in assessing whether a tree falling on a person was reasonably foreseeable.
ISBA President challenges Illinois lawyers to fight hunger October 2012 ISBA President John Thies invites all law firms and legal organizations statewide to participate in a food and fundraising drive during the final two weeks in February 2013.
It was a gift, not a loan—Prove it! By Jason G. Schutte and Eric Waldman September 2012 This article largely references the 4th District Appellate case of Barnes v. Michalski, in which Justice Appleton provided an exhaustive, informative and well-written analysis of Illinois law on presumptions of money transfers, burdens of proof, the statute of frauds and other issues.
Jurisdiction of Illinois courts based on Internet content without Zippo By George S. Bellas and A. Patrick Andes July 2012 In recent years, courts have returned to a more traditional analysis to determine whether personal jurisdiction exists in Internet-related cases. The United States Supreme Court Calder v. Jones case in 1984 crafted the “effects” test, which would become the blueprint for contemporary Internet jurisdiction analysis in much of the United States and in Illinois, specifically.
Lawlor v. North American Corporation of Illinois: The Illinois Supreme Court recognizes the Tort of Intrusion upon Seclusion and speaks again on punitive damages By Richard L. Turner December 2012 Activities such as opening private and personal mail, searching a person’s safe or wallet, examining his/her bank account, or using a pretext to obtain telephone records might all give rise to this claim. 
Lessons of Tunca v. Painter By Hon. Russell W. Hartigan and Nick J. Moeller August 2012 The court opinion in Tunca v. Painter provides an important reminder of the importance of preserving the record and dismissed counts in cases where appellate review is sought. 
Modifications and other things to know about infamous Supreme Court Rule 216 By Stephen C. Buser April 2012 Rule 216 may not be the most important Supreme Court rule a civil trial lawyer should know, but it is a Supreme Court rule that a lawyer should know to avoid devastating, and sometimes avoidable, consequences to a client’s case.  
New Illinois Rule of Evidence: Business record certification By Hon. Thomas More Donnelly March 2012 The newly adopted rule, Illinois Rule of Evidence 902 (11), allows records to be admitted into evidence without calling a live witness under certain circumstances.
The Nursing Home Care Act: Recoverable attorney fees and loss of society damages By Stephen C. Buser July 2012 The First District Appellate Court recently decided the case of Watson v. South Shore Nursing and Rehabilitation Center, LLC, which is important to lawyers suing and defending nursing homes. 
Parenthood in civil cases By Jeffrey A. Parness May 2012 Is it time to comprehensively examine all parentage statutes, or to recognize broader common law powers that would serve childrens’ best interests without interfering with the superior rights of parents?
Partial use of depositions: Illinois Supreme Court Rule 212(c) By John M. Stalmack March 2012 In essence, Illinois Supreme Court Rule 212(c) is a codification of the common law rule of completeness as it applies to depositions
Pre-trial issues in complex litigation: Court’s perspective By Hon. Barbara Crowder June 2012 This article recognizes some issues that may face both lawyers and judges in complex litigation, and explores some ways that the complex case may be approached to lessen confusion and problems.
A promise to pay expenses is inadmissible to prove liability By Hon. Allen S. Goldberg and Rosezena Pierce November 2012 The holding in Lambert v. Coonrod means that even if the defendant makes a statement about his or her willingness to pay expenses arising out of an injury while liability is still being disputed, the plaintiff’s attorney cannot use this statement in court as an admission for the purpose of proving liability.
Railroad owed no duty to child trespasser By Hon. Russell W. Hartigan and Christina Faklis October 2012 Along with playing with fire, drowning in water, and falling from heights, Illinois has now added moving trains to the list of obvious dangers that children should realize.
Recent Supreme Court Rule changes By Hon. Lloyd A. Karmeier May 2012 An overview of the significant administrative and rule changes made by The Illinois Supreme Court in the past year.
Scales v. Benne: Appellate Court addresses the use of photos produced at time of trial By Bridget A. Mitchell June 2012 Disclosure of photos is governed by SCR 214, not SCR 213, and parties will be barred from using photos not produced prior to trial that were the subject of a SCR 214 request.