Trial Briefs

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

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2016 Articles

2 tortfeasors, 1 accident = 2 under-insured motorist claims with 1 policy limit By Jason G. Schutte November 2016 Can an insurance carrier “stack” liability policy payments received by a claimant as a set off against the claimant’s underinsured motorist claim? The First Appellate Court says no, but limits insurance company exposure in Illinois Emcasco Insurance Company v. Tufano.
2-622 certificate of merit not necessary in simple medical battery claim By Jason G. Schutte February 2016 Attorneys, claims adjusters and risk management professionals should pay close attention to the facts of Fiala v. Bickford Senior Living Group, LLC and the allegations within the plaintiff’s complaint.
Absolute immunity By Robert T. Park August 2016 A look at the court decisions that protect judges, public officers making statements in their official capacity, guardians ad litem, court-appointed experts and child representatives.
The amendments to the federal rules: E-discovery is the focus By George S. Bellas & Thomas Hardiman January 2016 A look at the amended Rules as they pertain to discovery.
Arbitration clauses in the context of third-party beneficiary claims: An issue ripe for corporate consideration and Illinois Supreme Court review By Matthew R. Carter May 2016 A discussion of the current state of Illinois law considering arbitration clauses and third-party beneficiary claims.
Attorneys speak, documents do not: Pleading standards of Section 2-610 By Allison M. Huntley May 2016 At the pleading stage of litigation, use Section 2-610 as your guide. Avoid using “creative” responses that miss the mark. When your opponent uses phrases like “the document speaks for itself,” consider bringing this to the Court’s attention. It very well may help you win your case.
1 comment (Most recent May 14, 2016)
Berke v. Manilow: a premises liability case with no eyewitnesses, expert affidavits, speculation, and summary judgment By Nigel S. Smith September 2016 The recent case of Raymond Berke and Carol Berke v. Lewis Manilow, et al serves as a refresher of the requirements for summary judgment in Illinois.
A brief primer on Rule 191(b) affidavits By Troy E. Haggestad July 2016 When in doubt, seek a continuance supported by an affidavit, signed by your client, that complies with Rule 191(b). Failure to do so will likely constitute a waiver of any subsequent argument that dismissal or summary judgment was premature.
Carney v. Union Pacific Railroad Co.: The Illinois Supreme Court clarifies extent of liability to a subcontractor employee by an owner or general contractor By Richard Lee Turner, Jr. November 2016 In its recent decision in Carney v. Union Pacific Railroad Company, the Illinois Supreme Court has offered further guidance on not only what constitutes sufficient control for purposes of liability under §414 of the Restatement, but also what is sufficient to establish duty and potential liability under the theory of “negligent hiring” of a contractor or subcontractor under Restatement (Second) of Torts §411 (1965); and, further, what is necessary to impose liability on an owner for the existence of a “dangerous condition” on the land under the Restatement (Second) of Torts §343 (1965).
Comparative fault not trumped by summary judgment on liability By Jason G. Schutte & B. Moses Brown August 2016 Illinois Appellate Court demonstrates that a ruling of summary judgment on duty and breach of duty against Defendant does not bar Defendant from presenting evidence on negligence and arguing comparative fault at trial.
Failure to yield yields question of fact By Jason G. Schutte January 2016 The recent case of Griffin v. Cohen and Co-Co Pools, Inc. is a very good example of how difficult it is to win a summary judgment motion arising from an intersection car collision based upon the sole proximate cause defense.
Fee petitions: Kaiser and beyond By James J. Ayres November 2016 Counsel seeking an award of reasonable attorney fees by a circuit court would be well advised to not only ensure that the content of the billable time entries comply with Kaiser but also that the evidence sought to be introduced in support of the fees claimed complies with Aliano.
Illinois Rule of Evidence 1006 By David P. Huber January 2016 Illinois Rule of Evidence 1006, which is underutilized and perhaps underappreciated, is useful in that it promotes efficiency and focus on the pertinent matters which need to be addressed by a court.
Informed consent is determined by prudent person standard, expert testimony not required By Jason G. Schutte December 2016 Illinois Fourth District clarifies apparent conflicting opinions on whether informed consent medical malpractice claim is determined by objective or subjective person standard.
Interstate depositions and discovery—Making discovery easier By Patrick M. Kinnally July 2016 Take a look at 735 ILCS 35/1-- Illinois’ version of the Uniform Interstate Deposition and Discovery Act. It will save you time and a lot of your client’s money.
Lost Electronically Stored Information (ESI) By Jeffrey A. Parness July 2016 A review of the basic features of the new FRCP 37(e), its counterparts in Illinois, and its impact on all Illinois lawyers, wherever they practice.
The possible impact of the new and proposed amendments to the Federal Rules of Civil Procedure on Illinois civil practice By Jeffrey A. Parness January 2016 At the close of 2015 there were several major federal civil procedure rulemaking initiatives involving the Federal Rules of Civil Procedures. What were included in these initiatives and what do they suggest about possible new Illinois civil practice reforms?
Preserving substitute service with the testimony of the process server By Ken Stalkfleet June 2016 The Appellate Court’s recent decision in Abbington Trace Condominium v. Christine McKellar serves as a reminder of how little needs to be done to preserve substitute service in some cases.
Recent cases concerning contempt By Gary L. Schlesinger December 2016 A look at the recent case of Knoll v. Coyne.
Revisions to civil jury instructions regarding contracts By Hon. Barbara Crowder June 2016 An overview of the changes in the jury instructions regarding Contracts found in the 700.00 sections of the Illinois Pattern Instructions (Civil) that were issued in April 2016.
Serving a dissolved company: Isfan v. Longwood Tower By Hon. Daniel T. Gillespie & Daniel Burley September 2016 How does a party serve a dissolved entity? It depends on whether the company is a limited liability entity or a corporation. The distinction is important, as improperly serving a dissolved entity can scuttle a case.
Six-person jury law found unconstitutional By Robert T. Park February 2016 In Kakos v. Butler on December 21, Cook County Circuit Judge William Gomolinksi handed down an Order and Opinion that found PA 98-1132 unconstitutional because it violates the directive of the Illinois Constitution, Article I, Section 13.
Step-by-step civil juries in a nutshell By Hon. Jim Ryan & Hon. Joseph D. Panarese February 2016 An overview of the civil jury process.
1 comment (Most recent February 10, 2016)
Suing certain governmental entities for willful and wanton misconduct just became easier—Illinois abandons the public duty rule By Robert Handley & Grzegorz (Greg) Czubernat May 2016 As far as municipal or fire district entities are concerned, unless there is action by the legislature to enact immunity they will now be exposed to traditional tort principles.
The unauthorized practice of law: A case study By Patrick M. Kinnally May 2016 The author shares his personal experience.
The upcoming 2017 Allerton Conference: The changing landscape of civil practice: Technology, ethics & economics By Jessica A. Hegarty December 2016 The biennial Allerton Conference will be held April 19-21, 2017 at Starved Rock Lodge in Utica, Illinois.
What does “shall” mean? By Patrick M. Kinnally September 2016 The use of the word “shall” in a statute, apparently, is not dispositive of legislative intent, it seems.
1 comment (Most recent September 14, 2016)
Who signs the certificate of service? Rule 12(b)(3) and the pitfalls of noncompliance By Michael M. Shemkus November 2016 Illinois Supreme Court Rule 12 sets forth the requirements for proving service of documents in state court. It distinguishes between the certificate of an attorney and an affidavit by a nonattorney. A party’s failure to appreciate the difference between the two can prove fatal, as the defendant in People v. Tlatenchi learned the hard way.
Witnesses, statements and depositions: A few new thoughts By Patrick M. Kinnally August 2016 Some tips to prepare yourself and your witnesses for statements and depositions.
Zagorski v. Allstate Insurance Company: Stock discovery objections fail to pass muster with 5th District By Richard L. Turner, Jr. June 2016 In a decision issued on May 16, 2016, the 5th District Appellate Court in Zagorski v. Allstate Insurance Company provided an analysis of the problems inherent in replying with stock objections in discovery responses based upon relevancy or privilege, without detailing or adequately providing a basis for such objections.