Section Newsletter Articles on Civil Law

Gotta get back in time: Limitations of rescue by the savings statute By Adam B. Whiteman Civil Practice and Procedure, 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. 
O’Connell v. Turner Construction, Inc. and Section 414 of the Restatement (Second) of Torts By Bridget Duignan Tort Law, February 2012 The demarcation between retained control and the lack thereof is not clear-cut and the Illinois Supreme Court has not revisited this issue since it first recognized Section 414 as a statement of Illinois law, over 45 years ago.
Sufficiency of tender terminating right to judgment interest By Mark Rouleau Civil Practice and Procedure, February 2012 The recent First District case of Poliszczuk v. Winkler, 2011 Ill. App. 1st Dist. 101847, discusses in detail what constitutes a sufficient tender of payment of judgment so as to toll the defendant’s further obligation to pay judgment interest pursuant to Illinois Code of Civil Procedure.
Appeals court examines amounts in controversy By Michael R. Lied Federal Civil Practice, December 2011 In two recent cases the Seventh Circuit Court of Appeals considered how to determine what amount of money is at issue in a lawsuit.
Jablonski v. Ford: Is the Illinois Supreme Court crafting a new approach to duty analysis and proof in negligent-product-design cases? By George S. Bellas and A. Patrick Andes Civil Practice and Procedure, December 2011 The Supreme Court’s transition from Calles to Jablonski suggests that in negligent-product-design claims specifically and in products liability litigation generally, the Illinois Supreme Court may not yet be restricting duty analysis solely to the risk-utility test but has incorporated the consumer expectation test as a factor into the risk-utility test.
Pleading affirmative defenses post-Iqbal and Twombly By Ferne P. Wolf Federal Civil Practice, December 2011 Just how much additional language will be sufficient to satisfy Twombly and Iqbal’s enhanced pleading requirement remains to be seen.
One bite at the apple: Examining pro se litigants’ right to appointed counsel in civil cases By Hon. E. Kenneth Wright, Jr. Bench and Bar, October 2011 The Sixth Amendment ensures that individuals facing criminal charges have the right to appointed counsel; however, no such right exists in the civil realm. Whether a court appoints counsel to a pro se litigant in a civil case largely depends on court resources as well as the availability of pro bono programs.
Legislative update: From the governor’s office to the law office By Richard W. Zuckerman General Practice, Solo, and Small Firm, September 2011 Recently signed legislation that may have affect general practitioners.
Information of Note Civil Practice and Procedure, August 2011 ISBA updates of interest to members of the Civil Practice & Procedure Section.
Intrusion upon seclusion: A new tort? By John B. Kincaid Civil Practice and Procedure, June 2011 Notwithstanding the lack of endorsement or approval from the Illinois Supreme Court, there is sufficient Appellate Court approval for intrusion upon seclusion in Illinois.
To disclose or not to disclose under FRCP(a)(2) —That now is the question! By Ambrose V. McCall Federal Civil Practice, June 2011 The Seventh Circuit has issued a trio of opinions during the past six months or more that stress the need for counsel to evaluate what opinion testimony at trial might require counsel to make disclosures beforehand under FRCP 26(a)(2).
Trial court subject matter jurisdiction By Jeffrey A. Parness Civil Practice and Procedure, June 2011 The term “jurisdiction” in civil actions in Illinois circuit courts has many definitions, often leading to much confusion. Some of the confusion should be reduced by the recent Illinois Supreme Court ruling in Luis R.
Colella v. JMS: A good review of evidentiary issues, jury instructions and damages at trial By Dennis M. Lynch and Matthew M. Gannon Tort Law, May 2011 A look at the case of Colella v. JMS Trucking Co. of Ill., Inc., 403 Ill.App.3d 82 (1st Dist. 2010).
The effect of Iqbal v. Ashcroft in the Seventh Circuit By Patricia A. Zimmer Tort Law, May 2011 This case puts to rest the prior standard, that a complaint will not be dismissed pursuant to 12(b)(6) “unless it appears beyond doubt that plaintiff can prove no set of facts.”
Obtaining documents abroad: A primer for Illinois attorneys By Timothy J. Chorvat and Matthew A. Wlodarczyk Civil Practice and Procedure, May 2011 A look at the law relating to obtaining documents from sources abroad, and some suggestions on how to maximize the likelihood of obtaining useful information.
The lien epic: Don’t lose your attorney’s lien By Patrick M. Kinnally Civil Practice and Procedure, April 2011 If we follow the rules as to attorney fee liens we possess, much like all the other lien claimants might have, we can make the final disposition of the litigation a lot more certain.
One minute removal is proper, the next it is not: The possibility of removal under the “forum defendant rule” By Sandord G. Hooper Corporate Law Departments, April 2011 Removal under the forum defendant rule does not present itself terribly often, but when it does, it can provide defendants with an opportunity to litigate their dispute in federal court if they prefer that forum.
The preclusive effect of res judicata rulings By Laura L. Milnichuk Civil Practice and Procedure, April 2011 A look at Williams, et al. v. Ingalls Memorial Hospital, et al., which addressed the res judicata effect of the dismissals of certain claims in an original lawsuit when voluntary dismissals of said claims were later taken and a second lawsuit re-filed
Revisiting remittitur By Stacey Lynch Tort Law, April 2011 While remittitur is a useful tool when used correctly, if it's used incorrectly it has financial and constitutional implications.
Shared interest negotiation By Hon. Bruno J. Tassone Tort Law, April 2011 Principled negotiation is simply a common sense method to decide issues on their merits rather than through a contest of will power.
Look before you leap: A primer on fees allowed when taking over a contingent fee case By Ronald W. Kalish Tort Law, March 2011 Depending on how much time and effort the original attorney has put into the case, you may not receive a sufficient percentage to justify the time and risk of working on the case.
New federal procedural rules By Jay H. Scholl Federal Civil Practice, March 2011 A brief review of the December 2010 amendments to the Federal Rules of Civil Procedure.
Removal and remand: A primer By Albert E. Durkin Tort Law, March 2011 A defendant can petition to remove a state court claim to a court of federal jurisdiction if the case could have originally been brought in a federal court or in certain circumstances upon the federal court’s discretion.
Mortgage foreclosures: In rem or quasi in rem? The distinction that makes a difference By Robert Handley Commercial Banking, Collections, and Bankruptcy, February 2011 In this recent case the Illinois Supreme Court reversed the appellate court and affirmed the circuit court, thereby dismissing the foreclosure action filed by ABN AMRO Mortgage Group.
Vacating default judgments: Make it make a difference By Patrick M. Kinnally Civil Practice and Procedure, January 2011 A look at the ramifications of Blazyk v. Daman Express, Inc., decided December 17, 2010.
SLAPP has a bite By John B. Kincaid Civil Practice and Procedure, November 2010 In a flurry of appellate activity, Illinois now has four interpretations of the Citizen’s Participation Act--the first published appellate decisions interpreting the legislative purpose of the SLAPP statute passed by the Illinois Legislature in 2007.
Stapleton v. Moore: Cross-examination of a medical expert with a learned treatise By Hon. Daniel T. Gillespie Civil Practice and Procedure, October 2010 In Stapleton, the trial judge allowed defense counsel to cross-examine plaintiff’s expert with a medical article that was not disclosed in discovery. The appellate court affirmed.
Common carrier’s duty to passengers versus the natural accumulation rule By John J. Holevas Civil Practice and Procedure, September 2010 In Krywin v. Chicago Transit Authority, the Illinois Supreme Court found that the consequences of requiring the CTA to inspect every platform for a natural accumulation of snow and ice every time a train was to discharge or take on passengers would bring the transit system to a standstill.
A procedural look at the exclusive remedy defense By Kingshuk K. Roy Tort Law, September 2010 A brief overview of the exclusive remedy defense and its procedural application in light of the recent Fifth District decision of Reed v. White.
Fifth District revisits admissibility of vehicle photograph in auto accident litigation for the third time in three years By Stephen C. Buser Civil Practice and Procedure, May 2010 The Illinois Supreme Court may finally decide to provide lawyers involved in auto accident litigation with a “rigid line” or at least sufficient guidelines of when an expert is or is not required to have vehicle photographs admitted into evidence.