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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 2013

Affidavits and claims of privilege—The final word for now By Hon. Eugene G. Doherty November 2013 The following is Judge Eugene G. Doherty’s further reply to Mr. Balzer’s response from our October issue, which, absent new case law, will be our last word on this subject for a few months.
All that snow: Barber v. G.J. Partners, Inc. By Hon. Daniel T. Gillespie and Rachel Fugett September 2013 Premise liability for a fall with injuries after snow was shoveled was at the heart of the case of Barber v. G.J. Partners, Inc.
Appellate court reverses dismissal of a financial fraud case: Rasgaitis v. Waterstone Financial Group By Sara Siegall May 2013 This recent decision offers useful reminders to civil litigators on a number of civil practices issues, and also teaches that statements concerning the suitability of a particular investment opportunity can be actionable as fraud where the statements are reasonably understood as grounded in fact rather than opinion.
Beware of opt-out provisions in tort settlement agreements By Stephen Sotelo October 2013 This article demystifies the opt-out provisions of the newly created Section 2-2301 of the Code of Civil Procedure, and warns practitioners what to look for when handling tort settlement agreements in the future.
Common-Law Doctrine trumps Fraudulent Transfer Act in holding decedent self-settlor to irrevocable pledge By George S. Bellas and A. Patrick Andes February 2013 In Rush University Medical Center v. Sessions, the Illinois Supreme Court overturned the first district appellate court’s ruling in favor of a self-settled trust denying plaintiff Rush University Medical Center’s claim to a $1.5 million irrevocable pledge made by the settlor before he died, holding the trust was void as to existing and future creditors and Rush was entitled to the funds.
Costs: an imbroglio for trial courts and practitioners By Patrick M. Kinnally May 2013 What constitutes an allowable "cost" is not subject to any bright line test. In large part, this uncertainty stems from Illinois cost statutes that do not say what "costs" are recoverable.
Court upholds use of absent witness’ discovery deposition By Robert T. Park November 2013 In the recent decision of Calloway v. Bovis, the appellate court upheld jury awards totaling nearly $10 million dollars against a construction manager in a case arising from a trench collapse that killed a father and seriously injured his son
Does an affidavit really prove a privilege? By David J. Balzer September 2013 Unlike summary judgment motions and proving service on an individual, there is no Supreme Court Rule, Code of Civil Procedure section or Rule of Evidence carving out an exception that permits the use of an affidavit to prove a privilege. In other words, your opposing counsel has a decent argument that your affidavit is inadmissible hearsay. Ignoring this risks falling short of meeting your burden.
Failure to follow local e-filing rule not fatal to appeal By Timothy J. Chorvat November 2013 In VC&M, Ltd. v. Andrews, the Illinois Supreme Court held that a plaintiff’s motion to reconsider a judgment against it, as well as a subsequent notice of appeal from that judgment, were not nullities even though those documents were filed electronically in contravention of applicable local rules.
First District requires two years of continuous employment to enforce employee covenants not to compete: Fifield v. Premier Dealer Services, Inc., 2013 IL App (1st) 120327 By Ronald D. Menna Jr. August 2013 Fifield v. Premier Dealer Services, Inc. is one of the first published decisions on the enforcement of employment non-competition clauses following the Supreme Court’s decision in Reliable Fire Equipment Co. v. Arredondo on December 1, 2011.
Follow-up on September article By Eugene G. Doherty and David J. Balzer October 2013 A reader's comments on the article, "Does an Affidavit Really Prove a Privilege,” and reaction to those comments from the article's author.
Forty-seven years not enough to sustain laches defense: Department of Natural Resources v. Waide By John W. Weiss September 2013 Examining the case law related to laches, the Fifth District emphasized that the mere passage of time is not enough to sustain a laches defense.
Frezados v. Ingalls Memorial Hospital: A clear case of apparent agency By Hon. Daniel T. Gillespie and Emily Laskowski August 2013 One area of frequent litigation in medical malpractice cases, particularly at the summary judgment stage, is the question of whether or not a physician can be considered the apparent agent of the hospital at which he or she is authorized to practice.
Holland v. Schwan’s Home Service, Inc.: Proof of “termination” and further consideration of the applicable standard for punitive damages in retaliatory discharge cases By Richard L. Turner July 2013 In a lengthy 92-page decision, the Fifth District Appellate Court, in its recent decision in Holland v. Schwann’s Home Service, Inc., upheld a jury verdict of $4,260.400, including a punitive damages award of $3.6 million dollars, finding that the jury was properly allowed to consider the issue of whether the plaintiff was truly “terminated” and that the punitive damages award was not excessive.
The Illinois duty to preserve ESI: A bridge over troubled waters By George S. Bellas and Rebecca Pucinski Keithley March 2013 Due to the dramatic increase in the use of digital technology in business today, the time is ripe for the judiciary and practitioners to take note of how electronically stored information is gathered and used at trial.
The Illinois Supreme Court clarifies appellate jurisdiction during pendency of foreclosure By Robert Handley February 2013 This opinion in EMC Mortgage Corporation v. Kemp provides an excellent refresher course on the appealability of interlocutory Orders generally, and of Orders in Foreclosure cases particularly.
The Illinois Supreme Court expands the immunity provision of the Emergency Medical Services Systems Act By Hon. Russell W. Hartigan and Jessica L. Fangman July 2013 The Illinois Supreme Court in Wilkins v. Williams held the immunity provision of the EMS Act protects government employees and the employees of privately owned ambulance businesses from civil lawsuits filed by patients or third parties, provided the act or omission was not willful and wanton.
Jurisdiction over the Internet: Innovative Garage Door Co. v. High Ranking Domains, LLC, 2012 Ill.App. (2d) 120117 (Dec. 3, 2012) By John B. Kincaid April 2013 The facts in the recent Innovative Garage Door case raise a new quandary for the plaintiff’s attorney intent on haling a foreign-based Internet company into an Illinois court.
National policy favoring class arbitration reaffirmed By Mark Rouleau September 2013 In Oxford Health Plans LLC v. Sutter, the United States Supreme Court “reaffirmed the national policy favoring arbitration in relation to class arbitration.”
New guidelines on privileged marital communications By Jeffrey A. Parness December 2013 In the recent case of People v. Trzeciak, Justice Theis was "troubled" by the majority's definition of confidentiality, which she found to constitute “a new exception” not found in statute. What was the new exception and will it apply in civil as well as criminal cases?
New Illinois Evidence Rule 502 By Jeffrey A. Parness January 2013 Effective January 1, 2013, new Illinois Evidence Rule 502 establishes standards on losses of attorney-client privilege and work-product protection via disclosure.
No duty to preserve evidence in negligent spoliation case By Hon. Russell W. Hartigan and Christina Faklis January 2013 A discussion of the Illinois Supreme Court’s reasoning and impact of the recent case of Martin v. Keeley & Sons, Inc., where the Court held that the defendants had no duty to preserve the physical evidence, a concrete I-beam that fell and injured several employees during a bridge collapse.
No strict liability under the Illinois Animal Control Act By Jason G. Schutte August 2013 In Hayes v. Adams, the Second District analyzed whether a dog owner who is not in actual possession or control of their dog at the time the dog bites and injures someone can be liable to the injured person under the Illinois Animal Control Act.
Non-residents’ streams of conduct and personal jurisdiction By Jeffrey A. Parness July 2013 The most difficult issue in specific jurisdiction cases often involves the requirement of purposeful availment by the nonresident of the benefits to be had in the foreign forum. The U.S. Supreme Court recently granted certiorari in Fiore v. Walden, affording it yet another chance to elaborate on this requirement.
Personal representatives and special administrators in tort claims: There is a difference By Patrick M. Kinnally December 2013 Should civil procedure rules should bar prima facie claims where a party dies in the tempest of a garden-variety personal injury claim? Or, frankly, what is the difference between a “special administrator” and a “personal representative”?
Prior consistent statements in trial practice: Can you use them? By Patrick M. Kinnally November 2013 Our judges and juries are smart enough to figure out that the mere repetition of what a witness thinks is true, even on a repetitive basis, does not make it so.
Railroads gain more ground: Illinois appellate court reverses $700,143.70 jury verdict after Choate decision By Hon. Russell W. Hartigan and Christina Faklis May 2013 Immediately after the Illinois Supreme Court decided Choate v. Indiana Harbor Railroad Co.,  it used its supervisory authority and ordered the First District Appellate Court to vacate its prior ruling in McDonald v. Northeast Illinois Regional Commuter Railroad Corp.
Seven mistakes expert witnesses make By Thomas M. McCauley August 2013 In determining the facts in their areas of expertise, expert witnesses must guard against making the following seven mistakes.
Stanton v. Rea: The intersection of the common fund doctrine with attorneys’ liens and medical providers’ liens By Hon. Daniel T. Gillespie and Rachel Fugett July 2013 Black’s Law Dictionary lists 62 separate liens. Stanton v. Rea discusses two of them.
Summary of new practice-related Illinois Supreme Court Rule changes By Hon. Barbara Crowder January 2013 This summary is designed to give readers notice of changes, some minor, others fairly important.