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

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Newsletter Articles From 2015

Admit it, Rule 216 is confusing By Troy Haggestad September 2015 A look at one of the legal gray areas that remains as a result of Vision Point of Sale, Inc. v. Haas.
The affidavit & success at summary judgment By Natalie Koepke & Jason G. Schutte October 2015 A discussion of the rules and case law governing the use of affidavits for summary judgment motions.
Appellate court applies limitations statute to uphold dismissal of wrongful death action against physicians By Robert T. Park April 2015 A summary of the recent case of Moon v. Rhode.
Appellate court clarifies how to properly complete a summons By Ronald D. Menna, Jr. December 2015 Recently, in Arch Bay Holdings, LLC-Series 2010B v. Perez, the Appellate Court set another trap for the unwary plaintiff, holding that service of summons is ineffective where a defendant’s name is not listed on the face of the summons, even though her name is listed on the attachment directing that she be served.
Cases illustrate importance of filing a post-trial motion By Robert T. Park October 2015 Arient and Burkhamer, decided the same day, both demonstrate the necessity of closely following the rules of practice and filing a post-trial motion whenever you seek relief from an unfavorable jury verdict.
The concept of “inherent power” does not divest a circuit court of its jurisdiction By George S. Bellas & Misty J. Cygan April 2015 In LVNV Funding, LLC v. Matthew Trice, the Illinois Supreme Court held that LVNV’s failure to register as a collection agency under the Collection Agency Act did not deprive the circuit court of jurisdiction.
A constitutional question about reduced jury size By Robert T. Park January 2015 Public Act 98-1132 goes into effect June 1, 2015. Trial lawyers will be keenly interested in the Act’s change to 735 ILCS 5/2-1105(b), which provides: “All jury cases shall be tried by a jury of 6.”
Contempt, social media, and the First Amendment in the Marriage of Weddigen By Ashley D. DiFilippo November 2015 In In re the Marriage Weddigen, the court discusses what constitutes civil contempt, whether a purge order is constitutional, and how the first amendment affects a person’s activity on social media.
Court erred in admitting text messages By Michael R. Lied June 2015 Lawyers who want to introduce text messages into evidence must be careful to lay the necessary foundation.
Court rejects res judicata but upholds dismissal based on forum non conveniens issues By Nigel Smith February 2015 The issue in Bjorkstam v. MPC Products Corp., was whether plaintiffs were entitled to reinstate their complaint against defendants after the circuit court had originally dismissed it based on forum non conveniens and their refiled Texas suit had then been dismissed with prejudice for lack of proper service.
A defamation action under Rule 224 is not afforded First Amendment protections so long as the ‘necessity’ requirement is met By George S. Bellas & Misty J. Cygan October 2015 Rule 224 should be utilized to obtain the identity of an online user for defamation claims. However, the action will only survive if the allegations pass muster under the standard for section 2-615.
Editor’s note By James J. Ayres December 2015 An update from Editor James Ayres.
Fiduciary-duty exception to the attorney-client privilege: A potential tool for beneficiaries in difficult situations By Allison M. Huntley September 2015 Illinois appellate courts have yet to fully embrace one powerful exception to the attorney-client privilege: the fiduciary-duty exception.
The importance of knowing and following the rules By Nigel Smith March 2015 A recent Virginia Supreme Court decision illustrates the danger of not paying the entire filing fee for a civil complaint, and then mailing the missing $2, only to have the check arrive at the court clerk’s office beyond the statute of limitations date, causing a $2.5 million personal injury suit to be dismissed.
Judicial “es-top-pel”—Bankruptcy debtors beware By Patrick M. Kinnally June 2015 Judicial estoppel applies in cases where a debtor claims an asset not revealed in a bankruptcy filing, and his omission may or may not preclude him from seeking compensation on a viable state law tort claim.
Lawyer investigations into uncertain parentage By Jeffrey A. Parness March 2015 With the growing phenomenon of uncertain parentage, lawyers also cannot assume that an established legal parentage in one setting will apply in all other settings.
Lost earnings and lost earnings potential: Can a small business owner recover? By Patrick M. Kinnally November 2015 Lost earnings capacity is not easily defined and its proof can be problematic in terms of certainty as well as quality.
Love means never having to say you’re sorry By Hon. Barbara Crowder August 2015 On July 21, 2015, the Governor signed Public Act 099-0090, creating an end to ‘heart balm’ actions and freeing the citizenry from actions for alienation of affections, breach of promise to marry, and criminal conversation.
McVey v. M.L.K. Enterprises: Proper calculation of the hospital lien By Hon. Daniel T. Gillespie & Jonathan P. Kuhn August 2015 In McVey v. M.L.K. Enterprises the Illinois Supreme Court overruled Stanton v. Rea and found, unequivocally, that the plain text of the Healthcare Services Lien Act requires that neither attorney’s fees nor costs be deducted before calculating the statutory maximum lien on plaintiff’s award.
Navigating the choppy waters of foreign trade—Chraca v. U.S. Battery Manufacturing Company By Hon. Daniel T. Gillespie & Aaron McKerry March 2015 In this recent case, the appellate court held that, under section 2-621, subsection (b)(3) of the Illinois Code of Civil Procedure (735 ILCS 5/2-621(b)(3)), a plaintiff is entitled to reinstate an action against a product distributor where he can show the product manufacturer is not subject to the personal jurisdiction of the court.
New Supreme Court cases determine jurisdictional issues By Robert T. Park February 2015 Two of the Illinois Supreme Court’s first 2015 decisions have dealt with jurisdictional issues.
Non-compete clauses and Fitfield’s two-year bright line rule: Illinois Supreme Court still silent while district courts engage in battle over adequacy of consideration By Jessica L. Fangman & Hon. Russell W. Hartigan April 2015 The current restrictive covenant debate in Illinois centers around the Illinois Appellate Court’s decision in Fifield v. Premier Dealer Services Inc., in which the court held that at least two years of continued employment was sufficient consideration to render the non-compete clause enforceable.
Nursing Home Care Act jury instructions—A trial lawyer’s experience By Terrence S. Carden, III January 2015 A recent Jefferson County case, Beckman v. SSC Mount Vernon Operating Company, LLC, applied the new instructions.
Pennsylvania judge takes a bold stand against unprofessional conduct By David W. Inlander & Ronald D. Menna, Jr. October 2015 Recently Judge Paul Panepinto, presiding over a Philadelphia, Pennsylvania, medical malpractice action, imposed a sanction of almost $1 million upon an attorney due to her expert witness’ violation of an agreed order in limine. Could such a sanction be imposed in Illinois to promote attorney professionalism?
Petitions under 735 ILCS 5/2-1401 not the right option for challenging appellate court mandates By Ken Stalkfleet December 2015 With its recent decision in Price v. Philip Morris, the Illinois Supreme Court offered deep reasoning for a point that might have seemed entirely obvious—that circuit courts cannot review mandates of the appellate court through 735 ILCS 5/2-1401. Practitioners should be aware of the court’s reasoning and what plaintiffs should have done.
Proposed class action not mooted by defendant’s tender By Michael R. Lied November 2015 The important consideration in determining whether a named representative’s claim is moot is whether that representative filed a motion for class certification prior to the time when the defendant made its tender.
Recent amendments to Illinois Supreme Court Rules and Illinois Rules of Evidence By Richard L. Turner, Jr. December 2015 A synopsis the recent amendments and additions.
Statutory silence on burden of proof By Jeffrey A. Parness June 2015 It seems reasonable to infer that the General Assembly desires the same clear and convincing evidence norm in removal petition cases as it has expressly articulated for custody order modification cases. Individual statutes should be interpreted, at times, by references to other statutes.
Substitution of judge as of right is in need of a time restriction By Robert I. Berger & Jin Yan September 2015 A party’s statutory right to a substitution of judge without the need to allege cause is a unique privilege. To prevent abuse of this privilege, the authors argue the statute should be amended to impose time limitations on exercising the right.
They can comment, but they cannot hide—The Illinois Supreme Court’s ruling on Rule 224 in Hadley v. Doe By Hon. Daniel T. Gillespie & Schuyler R. Ufkes August 2015 What Hadley v. Doe means for Illinois attorneys.

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