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

Another Appellate Court decision regarding the questioning of jurors under IL Supreme Court Rule 431 has recently been decided. This case, People v. Magallenes, has now stated that a violation of Rule 431 is not  per se grounds for an automatic reversal.

In this case it appears the court did ask the fourth part of Rule 431, but did not do so for each individual juror. The court held that there was no prejudice to the defendant.

Again, I am awaiting an IL Supreme Court case on this Rule.

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During this time of year, I don't know about you, but I enjoy a white, snowy Christmas in my part of the country. I enjoy getting together with family, buying presents for my kids, seeing a child's face on Christmas morning when they see the presents under the tree and the overall optimistic atmosphere of the season. Yes, I said "optimistic."

Watch the myriad of "Christmas" or "Holiday" programs that come across your television this season. The stories are varied, classic and just plain fun to watch. (I can't help but watch a Charlie Brown Christmas over and over again). What is common to each story at this time of year is the ending. Each ends with everyone "happy," the situation resolved, or just plain a tear jerk er that leaves you satisfied there is some good in all of us.

Now, what does all of this have to do with Litigation? Well, think about the stories we try to tell to the juries. What story do we try to relate? What is our goal? First, we try to paint a picture or tell the story that shows how our client is really the party who should win this case. Then we try to persuade that the evidence supports our client. Then we finish by telling the story based on the "facts" of the case. This model is for both the prosecution and the defense of a case.

So, at this time of the year, I ask the real question every juror is asking of you (the attorney or client) - what is the true story? I am not going to go into a recitation of Linus from the Peanuts (even though I do agree with the story). But, I think if you look at all the "holiday" specials, you see one theme that yours and my jurors like - good wins, people are overall good, that we all want the best for our lives not just this time of the year, but all year.

So now, our goal is to present the facts of our case to jurors so they will decide the "good" that is to come by their verdict. Not an easy task no matter what time of the year it is. The real question the juror is facing from all the perspectives of the witnesses is "what is the real story?"

Enjoy your Holidays! Have a Merry Christmas and Happy New Year!

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Law on Display: The Digital Transformation of Persuasion and Judgment - This book title just came across my feeds. It sounds interesting as I see more and more technology entering the courtrooms in our area. I will let  you know once I get a copy and read through it.

Check out the Law.com to get their take on it.

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Two more Illinois Appellate Court cases have just been published regarding the Illinois Supreme Court Rule 431(b), People v. Arredondo and People v. Madrid. These decisions affect criminal cases in regards to jury selection. The appellate court is not giving any lee way in regards to the trial court not following the rule specifically.

Seems a little harsh in light of the evidence against the defendant in these cases. But, how do you balance the victim's rights to protection and a defendant's rights to a fair trial without enforcing the rules?

It will be interesting to see if the Supreme Court will get a chance to weigh in on this matter.

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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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It is always of interest to me to come across a case like this one. Mike Fauss' article in the New York Law Journal  "Felony Conviction Reversed due to Lawyer who Slept During Trial"  brought it to my attention. As I have instructed students in the various areas of law, they can't fathom an attorney sleeping during a trial. I can't imagine it either. It appears an attorney in New York has done so in People v. Irizarry.

I am so nervous, wound up or however you want to express it, as I prepare for a trial and then deliver during a trial, I can't imagine sleeping in court. I admit I am worn out after a trial, but I make sure I am paying attention to the questioning of witnesses and the arguments of opposing counsel.

This case also shows what can happen when evidence is "inadvertently" allowed back to a jury that was not presented to them in trial. A couple of good lessons to be learned by all.

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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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Now ladies and gentlemen of the bar, a judge's perspective on presenting evidence to a jury. While the ideas are not earth shattering, there is no better teaching method than repetition and no better teacher than a judge. The Illinois State Bar Journal re-published this article in its June Issue:

In her article, Making Evidence Meaningful, which appeared in the May 2009 issue of ISBA's Civil Practice and Procedure Section newsletter, Judge Barbara Crowder of Illinois's Third Judicial Circuit supplies lawyers with some helpful suggestions for presenting evidence so both juries and judges can better understand its significance.

It is an easy read with some great input on presenting your case to a jury, even if it is a bench trial.

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One of our assistants at our office just recently was called for jury duty. Knowing she worked for a law firm, she thought she would never be selected for a jury. Well, she was - for a criminal trial. After two days, the case was dismissed on Atechnicality@ that the state failed to prove their case. But, that is not the reason for this post.

She was very disappointed in the whole process and very bored. She felt that the process was slow. The listening to the facts of the case was just drug out way too long. As I listened to this, I thought, what could we do as litigation lawyers to make the experience of serving on a jury more positive, and possibly less boring.

In this day and age of quick news, immediate gratification and the ever pervasive >entertainment=, it is no wonder our jurors feel like the courtroom drama is just not happening fast enough. The court shows have the investigation, trial and conviction all over within one hour. Plus, the storyline and sequence of dialogue is much more to point and dramatic.

In order to overcome some of this we as litigators must educate our jury during the selection process of what they will see during the trial. The court, being the judge, needs to highlight to the jury their civic duty, but also what is going on in the court room even when they (the jury) are not present. This will still not overcome the mundaneness of the jury trial process. The >entertainment= point of the process must also come into play. Use of technology is now playing an important role for a jury. Gone are the days of just putting on a case without some type of visual evidence or props. Items or photos blown up and put on foam board, computer visual programs, such as Microsoft's PowerPoint or Apple's Keynote, are now becoming a vital part to the jury trial process. More courtrooms are being equipped for the use of such items. Now it is up to us, as litigators, to use the technology as best we can depending on the case.

We still cannot go all the way to just entertaining the jury. Our visuals must still abide within the legal guidelines for the case. The jury must also realize just how important this process is, even if it appears to be a long drawn out, boring process. I too sometimes find the trial boring and wish it would move along a lot quicker. But, it is still one of the best systems in the world for what it accomplishes.

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