The Rockford Litigation Lawyer : Rockford Business Litigation Lawyer & Attorney : Tim Whitham : Schlueter Ecklund Law Firm : Illinois Corporate Law & Tort Commentary

It is an interesting question. It also one that was addressed over ten years ago in the book Guilty: The Collapse of Criminal Justice by Harold Rothwax. Then I came across the blog out of Tennessee that stated Why the Criminal Justice System is Broke in Tennessee by Rob McKinney. Both bring up excellent points of how politicians are constantly trying to "fix" the system. But is the system really in need of repair? At least to the extent the politicians think?

In my own locale politics has even entered our judicial system. Not one who likes to state his political views to loudly, I am concerned though about the race for one of our judges seats. In the race is a politician who, in the over ten years I have been in this area, I have not seen in a court room. I didn't even know he was an attorney. I knew he was a State Representative, but not a practicing attorney. Now at age 65, he claims to have all this wealth of knowledge able to make him a judge. Sometimes you just have to wonder. Like Tennessee, our ads have been the same, ready to fix a system I didn't even know was broken (again).

Sometimes, I think the repairs are from the damage we cause ourselves and not from a "broken" system.

Another example in our local community is the recent disclosure of a survey taken inside our police department over 4 years ago. The city fought, in court, to keep it confidential (and lost). Now, this week it is out and there are no big surprises. We, the community, knew there were problems inside the department, but the city wanted to keep it quiet. Why? Even our local paper's blog wondered that.

Society views some of this with true scepticism. And so they should. Politicians win on campaigns that state a problem, whether it exists or not, and the solution they can bring to it, whether true or not. My only request is the same as Rob McKinney, we should not be your politicial football that can be tossed back and forth as you please.

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I apologize for those who may follow my blog. I have been a little preoccupied after the beginning of this new year. Subsequently, I have neglected my followers. I came across Amy Campbell's blog post this evening and she gave me a good excuse to remedy my situation.

The solution: I want to put good content forward and not just advertisements for me or my practice. Thus, I was awaiting the proper moment (and need) to write something.

Well, I must admit, I just needed to sit down and say this needs to get done. As a judge would tell any good litigator, the excuse is good, but you still need to complete what the order requires. Or I don't care what your excuse is, get it done!

So thank you and enjoy!

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Well, they are not Santa, but the Vermont Supreme Court will decide this question and hopefully give us a great answer we can bring to our courts throughout the country. The Associated press ran this article this morning. After several weeks of being busy before the holiday and now looking for something to write about, this article caught my eye.

I know I may not get the votes from all you pet enthusiasts, but it is just a dog. I know, they are companions, they are family members (cough, cough), but now we are going to sue for emotional distress and loss of companionship?

Less you think I hate all animals, I don't. I am a dog owner. Actually two of them. One of them we rescued from a no kill shelter. But, if my dog wandered off onto another persons property and was killed - I don't know if I could seek additional payment based on how I felt about my dog. The article does bring up a good argument of where do we draw the line? Horses? Cats?

I understand being justly compensated. But, I have a hard time with the premise of this case. Call me cold hearted or at this time of the year a Scrooge or Grinch, but really - it's a dog!

Well we will have to wait and see what the Vermont Supreme Court thinks!

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Happy Thanksgiving!

This is the day we ask ourselves "what are we thankful for?" I know the economy is not at the level of productivity we like and for many of us this has been a year of struggling through many personal and professional challenges.

I am thankful for our legal system during years like this. It gives individuals and companies the assistance to overcome some the obstacles our economy has presented them.

Our system helps people obtain help with their finances (bankruptcy); protects the rights of individuals and victims (criminal system); protects property rights (civil law, landlord/tenant, foreclosure); and has a role in families (juvenile, family, adoption).

Our system is not perfect. I can't say that I know all about other countries and their legal systems, but I am thankful that our system. I am thankful for the system that gives everyone a voice. The outcomes may not make everyone happy, but it does give everyone a chance to be heard.

So, what are you thankful for today? No matter what it is, have a great day just giving thanks!

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When you sit down with a client to go over their business papers, the last topic discussed is the closing of the business, the future sale of the business or the possibility of a partner taking over without consent of the other partner, and the list can go on from there. I recently came across a research paper, "Unprepared for the Unthinkable," from Inc. magazine that is a must read for small business owners. It is what Inc. Magazine is calling their "white paper" and requires a free small sign on information to obtain it.

The paper is well worth the sign on. It is clearly and concisely written. The facts it brings to the business planning are great.

About 40% of business owners are financially prepared in the event their partner(s) dies. Only about 15% are prepared if their business partners are disabled.

So why are so few businesses addressing the issue? The survey says, "cost."

If a business partner died, almost a third of those surveyed said they would work it out. Meanwhile, the same sentiment was expressed by a fifth of the business owners when it came to disability.

As a lawyer, I know our costs can seem steep as an entrepreneur is setting up his business and pouring his blood, sweat and tears, and a lot of his own money, into his new venture. But, you can either pay the cost up front in the preparation of documents or pay later to undo the mess afterward.

Although this (working it out) is a very noble sentiment, in our experience it just never seems to happen - at least without lawyers present. More often than not, the result of "working it out" is far more costly and disastrous to the business than if the business owners took action before the fact.

So, lawyers do help! But to avoid the unknown - prepare and plan ahead of time as best you can.

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I had an attorney who had been practicing law for 30 years tell me once, " You should go into court on a motion expecting to lose. That way if you do lose, you are not surprised or upset and if you win, you do not gloat too much."

The frustrations of litigation though can be taxing. Trial practice is the most nerve racking. You prepare many hours just before trial on a case that you have been working on sometimes for years. Then within 3 days or two weeks it is over with. If the verdict is in your favor, you may be very pleased, but if not -- well a decision to appeal and if you can appeal may be coming.

Sometimes, it is the decisions though made during trial that can be the most frustrating. You have little, if any, time to react to the judge's orders. Depending on the court rules could have a sizable impact on your case and how you are going to proceed. But, you must proceed within the parameters set out by the court.

A recent Illinois 4th District Appellate case, Thomas v. Koe, highlights these factors. I feel for the plaintiff's attorney who had some rather poor decisions made by the trial court. However, the attorney's actions also were brought into question, the trial court ultimately holding him in criminal contempt of court.

This case highlights the tension that is raised in trial work between a balance of proper evidence, the judges decisions and then how do you put on your full case to the jury after those decisions. We all know appeals are available after the trial, but it would be nice to have the issues before the jury so an appeal would not be necessary.

So goes the life of a trial attorney.

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The Rockford Register Star  is reporting a settlement was reached for all but one of the parties who sued the Winnebago County Sheriff's Office as a result of fatal car accident involving one of their deputies.

It appears the widow of one of the parties killed, and the family of two of the other victims have reached a settlement. There is still one case pending for a 15 year old who was killed in the same crash.

There are no quotes from the attorneys representing the parties. It will be interesting now to see what the public has to say as the settlement will require bonds to be issued to cover the amount over the insurance policy amount of $5 million.

I still think a settlement in this case was better than a trial. There was already a criminal trial that rendered a not guilty verdict, but a civil trial would have brought out more evidence and testimony. This I am sure would not have been as favorable for the county.

As with any litigation, hopefully, the parties can now move forward from this point.

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I guess I am not the only one who feels the "crunch." I am glad there are others who still keep the blawg life going as well, even after a vacation.

See Mark Loftus'  post on "Glad to see I have beaten the odds."

See, you later this week and the next, and then another....

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The "Dog Days of Summer" are upon us (well at least I'm feeling it). I am reminded of this as I try to catch up on the work I missed while I was on vacation. It never fails, just when I think I have caught up with all my work, I end up further behind. This is the time of year when you have taken a vacation (hopefully), the school year is about to begin and you still feel the need (or want) to relax, just for a little while longer.

In litigation work, it is not always "your" work you are behind on. Your clients come to you with a problem (e.g.. pending lawsuit, their business is owed money for work completed, etc.) and that is when you find out that all is not quite as it seems. The client has not kept certain paperwork they should have. The required paperwork was never started, let alone properly completed. I relate this to the "dog days of summer." Our clients have relaxed hoping to catch up after their "vacation."

So, what is a litigator to do? I would suggest some of the following:

1. Making sure first we are up-to-date on our projects (at least as much as we can be).

2. Assist your clients with as much as you can with checklists of items to take care of from a legal point of view. Since I represent some small businesses, this is especially important and can be easily done. These checklists may include: what paperwork to hold on to, what reports, etc. need to be filed with the proper government agencies. Their a variety of checklists available depending on your field of expertise.

3. Create little reminders or gentle "nudges" to send a note to a client to remind them of what is important to get in order for them personally or their business, especially as the end of the year rolls around.

4. Making sure your clients know a paper trail, especially with any agreements they may enter into is very important when it comes to prosecuting or defending a claim. It never fails, your client wants to sue or is served with a lawsuit and they don't have the necessary paperwork to prove or defend their case. This of course is the paperwork that in the "normal" course of business would have been done.

Well, the dog days are upon me. It took me a while (a lot longer than it should have) to just sit down and write this entry. I want another vacation! But the prospect of helping someone out of their predicament brings me back to the office for another day. Now, how to get organized. (Helpful book on this Getting Things Done by David Allen).

So, until next time - relax, enjoy the moment - Now BACK TO WORK!!

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We are always taught to know what the answer to the question is before we ask it. But, we sometimes forget to pay attention to what the question is. I was reminded of this recently when questioning a police officer during a motion hearing. You would think as a former police officer, I would have been ready for this.

The issue was a consent to search a vehicle. I asked the officer what did you ask my client? His answer was I asked him "Do you mind if I search your vehicle?" Now like most of us, we want to say "No" thinking we mean, No.

But, look at the question. (He did not ask, Do I have your consent to search your vehicle?) If your client answered "no", to the question, he really meant "No Officer, I don't mind if you search my car." If he answered "Yes", then he meant, "yes, I do mind if you search my car." So, in other words, by answering "yes" you really mean "no" I am not consenting to you searching my vehicle.

The legal field is always full of these little nuances of our language. It drives my kids nuts when I point some of them out  to them or pick on what they said and not what they meant to say. I point this one out, not to pick on my former law enforcement colleagues (he was trained well on the question to ask), but to highlight, how we can be duped into thinking we are saying "no" to something when in fact we are saying "Yes".  The form of the question matters as much as the answer. Hopefully we lawyers, are trained not to just look for the answer, but to form the right question to get the answer we want.

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Yesterday, while working on a house roof, I had that discussion as we sat around eating lunch, do you remember those days? The younger (20 somethings) listened as we talked about some of those incidents we had been involved in or witnessed where workers would remove shields from machines, or not use safety equipment when building some the tall structures we now love and enjoy. Of course, it came back to those attorneys who file the lawsuits for the victims, as my friends chided me, who were not entirely without fault.

Then this morning, I came across this article "How did we ever survive childhood?" on the Parentdish website.

I have heard that for every warning on a device, piece of equipment, or article, there was most likely a lawsuit behind it. Some of the warnings are quite absurd, but practical. A favorite was not ironing the clothing while you are wearing it. Or, the lid of a missile silo on a Navy battleship that stated "do not look in when open". It reminded me of a Bugs Bunny or Wiley Coyote cartoon where the rocket blasts off and they are holding onto the item as it shoots into space and explodes.

If only our lives could end like a cartoon. No injuries, no scars and no need for medical treatment even after life changing explosions.

But, some kids did not survive their childhood. Hence, we now where bicycle helmets. Even professional bicyclists see the need to wear them. We have now made cars safer, but the safety equipment in the car (eg. seat belts and child safety seats) have also helped.

Yes, some lawsuits may not need to be filed. But, we can be thankful some were to make the survival of childhood and our adult lives that much safer and more enjoyable.

I am always amazed at people who take a view attorneys that life would be much simpler without attorneys. Our country's founding fathers, some were attorneys and look at the country the formed. (Okay, bad example). We may reminisce that our childhood days were much simpler, but as we take those long road trips this summer, I am glad they will much safer.

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Just a note for those of us who file orders over the counter for a judge's signature in Winnebago County, changes are coming. This notice was just e-mailed to me on Monday, July 6th.

Effective August 1, 2009, all unsigned order(s) requiring a judge’s signature will no longer be accepted at the Winnebago County Circuit Clerk’s Office. All such orders must be directed to the Trial Court Administrator’s Office. Their mailing address and telephone number is:

 

Trial Court Administrator’s Office, Winnebago County Courthouse, 400 W. State Street Suite 215, Rockford, IL 61101,(815) 319-4806

 

The Trial Court Administrator’s Office will obtain the signature(s) and forward the signed orders to the Circuit Clerk’s Office. This new procedure will provide the very best of services to you.

 

If you wish a copy of the signed order, please send a self-addressed, stamped envelope with the correct fee to the Circuit Clerk’s Office. The fee is two (2) dollars for the first page and fifty (50) cents for each additional page. If you wish to check on the status of an order, please contact the Trial Court Administrator’s Office.

For more updates on local rules and memorandums see the Winnebago County Bar Association website.

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We strive to say the right thing. We, especially as litigators, love to correct people with their use of wrong phrases, or when they “slip” up on the witness stand to be able to point out the error of their ways to the jury.

We sat at our partner’s breakfast meeting this morning and discussed the lack of using “written” words. Not on the computer, but on paper and writing letters and journals. You know the kind that we see in history books on past presidents. The journals of our past relatives can add so much of their character, of who they were and what life was like at the time. We can see their corrections and deletions that we now miss with the use of the computer.

Writing in a sense has become a lost art, or appears to be losing its place in our society. But good writing is still necessary in the litigation field and in the other areas of law as well. I write this, okay type this column, after reading an article regarding Judge Sotomayer who is now the nominee to the U.S. Supreme Court.

Tony Mauro of the National Law Journal article "Sotomayer, Word by Word" highlights some of the debate that will not encompass Judge Sotomayor’s nomination – her writings. Former case decisions that are now in written form will be dissected, debated and questioned. According to quotes in the article, Judge Sotomayer struggled as a writer, even in the legal field, her writing style is at times tough to read and at times boring. I think a comment of why she adds so much detail to her opinions is interesting:

Sotomayor's six years as a federal trial judge are crucial in understanding her approach to opinion writing, said Alan Schoenfeld, who clerked for her in 2006 and 2007. She sees giving specific guidance to district court judges and litigators as a major part of her job, he said, and that requires going into detail.

I am glad she writes her opinions to educate the courts and the attorneys. It is the reason we all research former cases to find one that assists our cause and will persuade the trial court to agree with our position on an issue or to more fully understand the issue presented.

I understand the dilemma this article raises. The concern of how detailed Judge Sotomayer is in her decisions, will they make sense in the Supreme Court or will they be too hard to understand? We don’t know. Will she be confirmed or denied based on her written opinions. We all try to write our best. There are some who have a skill or knack to write much better than others. I think I fall into the category with Judge Sotomayer that my writing takes many drafts to complete.

Since most of my writing is done by typing on a computer gone are the drafts and revision sheets of paper. The lost art of letter writing is now on blogs or social networks online. For some of us, writing letters and keeping journals is still a daily necessity, but for how long? Will we pass on a legacy of what the law has meant to us or for us that others can review in the future? It is interesting how we push technology and the internet social networks, yet when it comes down to choosing a U.S. Supreme Court judge we look at her written words.

So, now go out there and write - you never know who may be reading your words.

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A article posted today in the Peoria Journal Star confirms what I have posted earlier about the roles of paralegals in a law practice. The article "Colleges See Influx for Paralegal Job Track" highlights not only increase in enrollment at the local college, but also the benefits of a paralegal in a law practice.

Tom Higgins, a professor of criminal justice and paralegal studies at ICC, said a greater demand for paralegals preceded the recession, and that trend has continued largely with no effect in that job market despite the recession.

Several of my students at the Rockford Career College reiterate this mindset. The economy is what drove them to get a degree that they could use very soon in order to find full-time employment.

"A paralegal makes you money, whereas a legal secretary is overhead," Higgins said, explaining employers are looking for more efficiency.

Paralegals assist lawyers by researching legal precedent, investigating facts or preparing legal documents. They also conduct research to support a legal proceeding, to formulate a defense or to initiate legal action.

The benefits were highlighted to me last night as I had two of our local circuit judges speak to our class. Both judges allow paralegals to assist attroneys during a trial. As long as they are informed ahead of time this will be occurring, they have no problem with this practice. In fact, they pointed out that the paralegal is almost a necessity depending on the complexity of the case and amount of exhibits that are presented during trial.

Also, the paralegal can do some of the behind the scenes work to prepare the case for trial. While our Supreme Court Rules do not allow for a paralegal to appear in court for status on the case or any motions, their assistance in other aspects of the case can be very beneficial.

It is good to hear that some people are seeking a legal education that will benefit our profession even when the economy and a recession are being batted about on all the headlines. It should also give litigation attorneys pause as to how the benefits of this influx of graduates can assist our practice in the future.

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In this day of cut backs and looking for ways to stretch our dollar, the thought of hiring office staff is far from our minds. However, there are alternatives available. Recently our office has had the privilege of having an student extern from the paralegal program at one of our local colleges work in our office. She was not only efficient in the preparing of case documents, she was also quite helpful in the research of various issues involved in some of our cases.

Wendy Rogers in the latest Texas Bar Journal article, "How Paralegals Can Enhance the Competitive Edge of the Smal Firm," highlights some the positive reasons smaller firms may want to hire a paralegal. The one that sticks out to me is the ability to be in court more knowing some the “substantive” work is being handled by a competent person.

The article also highlights an interesting perspective that most paralegals work for firms with five or less attorneys. If this is true, it clearly points out the capability a good paralegal can bring to a small firm to enhance its service to its clients. (They have also been a good source of client referrals for our firm).

I will have to admit that I am an adjunct professor at Rockford Career College in their paralegal department. So I do have some bias towards these students. But, that aside, the practical knowledge they attain, as well as the legal knowledge, can only assist a smaller firm with the preparation of court documents and legal research.

Externship opportunities are constantly in need for these students. It is a great avenue to get to know the person your office may just hire in the future. In our case we have hired our extern part-time at this point to fill in for office staff's vacations this summer.

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See Andrea Howe's blog post April 28, 2009, Consulting and the Art of Self-Deprecation, on Trusted Advisor. I thought how often would these Top Ten Things You’ll Never Hear from a Consultant apply to a Lawyer as well.

Thanks Andrea for the note to just laugh at ourselves sometimes!

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We are finally up and running with our blawg. I wanted to get his announcement out today, so as not to “fool” anyone with an announcement tomorrow, April Fool’s Day.

Litigation defined as “a lawsuit or legal action, including all proceedings therein.” Black’s Law Dictionary.

By this definition, I hope to bring to light the issues and cases involved in our expansive legal system. This will include cases from various areas of law, but all having to do with “going to court.”

I hope to accomplish several things with this blawg:
Educate attorneys and clients in several areas of law that may affect them or their businesses;
Provide up to date information about cases that have or are proceeding through the court system, with emphasis on litigation or trial issues;
Provide commentary regarding critical issues regarding litigation; and
Have fun discovering the various areas of law and the relationship with one another in the court/litigation process.

Who knows today where this might lead.

I look forward to your comments and suggestions. As an adjunct professor at local colleges in my area, I am always looking for more opportunities to learn and helping others to learn. I hope to do the same through my blawg as you comment and discuss the issues I bring to this forum.

I hope for a long and productive practice as the Rockford Litigation Lawyer.

Enjoy!

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