Trial Briefs

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

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2009 Articles

Abruzzo v. City of Park Ridge: Supreme Court to the rescue! By Stephen I. Lane April 2009 Since the Tort Immunity Act was passed in the mid-1960s, governmental agencies have, in many ways, enjoyed a collective lack of accountability for injuries caused by their agents and employees.
Appellate court rejects prescribed means exception to natural accumulation doctrine By John J. Holevas 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.
Choice of law in multi-state tort cases By Jeffrey A. Parness January 2009 Gregory v. Beazer East provides a useful reminder of basic choice-of-law principles, including depecage and the “factual contacts” test.
Circuit court had no jurisdiction to consider untimely filings By Robert T. Park December 2009 In Keener v. City of Herrin, 2009 WL 3212336 (Oct. 8, 2009), the city police arrested Chelsea Keener, an 18-year-old girl, for underage intoxication.
Clark v. Children’s Memorial Hospital: Expanding recoverable damages in wrongful birth actions By John J. Driscoll June 2009 A look at the First District Appellate Court case of Clark v. Children’s Memorial Hospital, et. al.
Complicity Doctrine revisited: New Dram Shop instructions and more By Stephen C. Buser November 2009 The affirmative defense of complicity often presents an insurmountable hurdle for a plaintiff who has filed an action under the Illinois Liquor Control Act, more commonly known as the Dram Shop Act.
Costs of taking evidence deposition of out-of-state physician properly awarded By John E. Thies April 2009 In Peltier v. Collins, a unanimous Second District panel held that the trial court properly awarded the costs of the court reporter and videographer incurred by plaintiffs in obtaining the evidence deposition of an out-of-state physician. 
eDiscovery issues: Authenticating e-mail produced in discovery By Scott A. Carlson & Jay C. Carle 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.
Enforcing settlement agreements after a case has been dismissed “with prejudice”: Does the court retain jurisdiction to enforce the agreement? By Laura L. Milnichuk March 2009 In Director of Insurance v. A & A Midwest ReBuilders, Inc., et al. the Second District Appellate Court held that the trial court retained jurisdiction to enforce a settlement agreement in an action that had been dismissed “with prejudice.”
Ensuring fairness in Illinois Whistleblower Act claims By Stuart Chanen & Chris Stetler July 2009 In an effort to fight fraud, the Illinois Whistleblower Reward and Protection Act allows private parties to bring lawsuits on behalf of the State. But what should the State do when those private parties abuse that power by bringing claims that are without merit?
Evidence of negligence may not preclude summary judgment in an unavoidable accident By Kimberly L. Dahlen March 2009 The court found that the trial court’s granting of summary judgment for the defendants was proper.
First District limits liability of snow removal contractors By Stephen C. Buser February 2009 The First District Illinois Appellate Court has been busy for the last several years deciding when snow removal contractors may or may not be liable for claims arising from work performed involving the removal, pushing, and/or piling of snow.
How judges influence advocacy By Patrick M. Flaherty & Patrick M. Kinnally February 2009 When judicial action is appropriate, it should be tempered with recognition that action carries consequences and that even routine practices can impact an impressionable jury.
Illinois appellate court examines a medical expert’s qualifications: McWilliams v. Dettore, (1st District, 2009) 387 Ill.App.2d833, 901 N.E.2d 1023 By Bridget A. Mitchell July 2009 In McWilliams v. Dettore, the Illinois appellate court primarily focused on whether plaintiff’s expert, a hematologist/oncologist, was qualified to offer standard of care opinions against a defendant surgeon.
Jury instruction update By Hon. Barbara Crowder December 2009 Grammar enthusiasts take note. And you all know who you are—a misplaced apostrophe bothers you. You worry about the use of commas in a series and secretly believe that final comma should still be used before the “and” even though modern rules do not require it. 
Jury instruction update By Hon. Barbara Crowder November 2009 Three new jury instructions were revised in September 2009.
Making evidence meaningful By Hon. Barbara Crowder May 2009 Some suggestions and observations to make evidence more meaningful.
Maxit, Inc. v. Van Cleve: Supreme Court clarifies the need for express approval by Workers’ Compensation Commission of any attempt to settle or waive employee rights and benefits By Richard L. Turner, Jr. January 2009 Any attempt to waive or compromise rights needs to be explicit and should definitively refer to the rights accruing to the particular party under the Illinois Workers’ Compensation Act.
Motion in Limine Reduces Trial Prejudice By Terrence K. Hegarty & Jessica A. Hegarty May 2009 A pretrial motion in limine must be prepared and argued before the voir dire begins, and a written order memorializing the court’s rulings on each issue must be entered.
Newton Tractor Sales, Inc. v. Kubota Tractor Corporation: The Supreme Court Promises—You Can Sue! By Hon. Barbara Crowder June 2009 The Illinois Supreme Court has underscored that promissory estoppel is a recognized cause of action in its own right and cannot be relegated to the affirmative defense section of an answer.
Obtaining deposition testimony from witnesses abroad: A primer for Illinois lawyers By Timothy J. Chorvat & Jill M. Hutchison June 2009 In seeking discovery from non-parties who are located outside the United States, the greatest limitations an attorney is likely to face will be restrictions imposed by the jurisdiction in which the deponent is located.
OPERATING INSTRUCTIONS: The Demise of IPI 105.01 By Susan M. Brazas May 2009 “That is for you to decide” appears at the end of IPI 10.01 (the definition of negligence as to an adult), IPI 10.02 (the definition of ordinary care for an adult), and IPI 10.05 (the definition of ordinary care for a minor).
People v. Illinois Commerce Commission: Deadline for E-filing under Illinois Commerce Commission’s regulations By Laura L. Milnichuk March 2009 In the recent Illinois Supreme Court decision of People v. Illinois Commerce Commission, the Court considered the question of whether the Illinois Commerce Commission’s regulations require documents to be electronically filed before the close of business in order to constitute timely filings and provide the appellate court with jurisdiction to hear any subsequent appeal.
Relation-back doctrine: Stevanovic v. City of Chicago By Hon. Daniel T. Gillespie April 2009 The relation-back doctrine is one interesting legal principle that most attorneys do not come across very often.
Scrivener be aware: Attention to detail is essential in vendor’s endorsements By Hon. James Fitzgerald Smith & Julia Illman Maness February 2009 A recent opinion by the Illinois appellate court, First District, Fifth Division, reminds us that attention to detail when drafting a vendor’s endorsement in an insurance contract is of utmost importance.
Time is of the essence, or is it? By John B. Kincaid October 2009 Two recent Rule 23 Orders decided by separate panels of the Second District Appellate Court appear to conflict as to whether a court can limit the cross-examination of a witness or the submission of evidence which supports the litigant’s case.
Timing is everything: Jury instructions and Supreme Court Rule update By Hon. Barbara Crowder October 2009 An examination of the changes to Jury Instruction 1.01 issued in May 2009 and the June 2009 modification of Supreme Court Rule 239 effective September 1, 2009.
Update on Supreme Court Rule 103(b): Filing the complaint is not enough By Jim Williams & Denise Hemmer January 2009 Illinois Supreme Court Rule 103(b) has required reasonable diligence in obtaining service for years.
When is a credit card agreement an oral contract? Portfolio Acquisitions LLC v. Feltman By Hon. Daniel T. Gillespie & Kathilynne Grotelueschen November 2009  In Illinois, where the statute of limitations is ten years for a written contract and five years for an oral contract, one might well think that a credit card agreement would qualify as a written contract because credit cards are generally issued pursuant to a written card member agreement.