2006 Articles

Attorney’s retaining lien, circa 1889 By John B. Kincaid March 2006 Contrary to the popular misconception of many attorneys and judges, including this writer, Illinois has, since 1889, recognized and enforced the right of an attorney to retain his physical file until the client has paid for his services.

Bankruptcy may sound death knell for subsequent civil action By Michael J. Marovich September 2006 A potential client comes to your office to discuss a possible new civil case. He tells you that he wishes to file a civil matter seeking money damages against some person or company and asks if you will handle it for him.

Beware of putting attorney-client communications at issue or face waiver of privilege By Kathryn R. Hoying January 2006 In Lama v. Preskill, 353 Ill. App. 3d 300, 818 N.E.2d 443 (2nd Dist. 2004), the Second District Appellate Court affirmed the trial court’s judgment that certain contested documents were not protected by the attorney-client privilege, but reversed the trial court’s contempt order entered against plaintiff and her attorney for refusal to tender the contested documents to opposing counsel.

Building a legal system in 21st century Russia By J. Dennis Marek February 2006 While scholars can debate the reasons for the collapse of the Soviet Union, it is clear that as Russia enters the 21st century, the legal system will require a modification unknown in previous centuries.

Clerk hands back complaint—Case barred by statute of limitations By Robert Handley November 2006 In Union County, the Circuit Clerk’s Office closes at 4:00 p.m. and not a minute later. Unfortunately, the plaintiff learned that the hard way. Roach v. Coastal Gas Station, 363 Ill. App. 3d 674, 843 N.E.2d 393 (5th Dist. 2005).

Criminal acts exclusion in auto gap insurance policy applies to driving under the influence By Michael J. Marovich January 2006 In Bohner v. Ace American Insurance Company, 359 Ill. App. 3d 621, 834 N.E.2d 635 (2nd Dist. 2005), the Second District Illinois Appellate Court held that the criminal acts exclusion in an automobile gap insurance policy applies in a driving-under-the-influence case.

Cross examination of opinion witness with facts and data not relied upon By Robert H. Hanaford December 2006 Testimony from expert witnesses frequently involves the use of facts and data not in evidence and not relied upon by the witness.

Employment arbitration agreements are enforceable, even when unilaterally proposed by the employer during the course of employment By Mia Hoffman June 2006 Are current employees bound to alterations in employer-mandated terms and conditions where they restrict the employee’s ability to pursue statutory and other rights in a traditional judicial forum where there may be a jury?

The Exclusionary Clause is the focus of the policyholder’s ire in USAA v. Dare: “It depends on what you mean by ‘maintenance’” By Hon. Daniel T. Gillespie February 2006 Can a party ever appeal a denial of a motion for summary judgment?

Fairness and equity permeate the ab initio arena By D.J. Evans September 2006 The Illinois Supreme Court’s recent decision in Perlstein v. Wolk, 218 Ill. 2d 448, 844 N.E.2d 923 (2006), struck a powerful balance between considerations of fairness and equity with the often harsh results of the void ab initio doctrine.

First District rules that two-year limitation provision in uninsured motor vehicle policy is void as against public policy By Michael J. Marovich April 2006 It is quite common for insurance carriers to place a two-year deadline from the date of a collision to make a demand for uninsured motor vehicle coverage in their automobile insurance policies.

How to handle an employer’s group health plan lien By Robert T. Park January 2006 As a result of an accident, the plaintiff was injured. He brings a suit in circuit court for negligence. His damages include medical bills that were paid for by his employer’s group health insurance plan. After pursuing discovery, including depositions, the case settles. The health plan asserts a lien for the amount it paid. How should the lawyer handle the employer’s group health plan lien?

The Illinois Supreme Court revisits intrastate forum non conveniens in Langenhorst v. Norfolk Southern Railway: “A battle over the minutiae” By Kris R. Murphy October 2006 In Langenhorst v. Norfolk Southern Railway Company, 219 Ill.2d 430, 848 N.E.2d 927 (2006), the Supreme Court of Illinois (“the Supreme Court”) recently revisited the doctrine of intrastate forum non conveniens.

Insurance defense cost reimbursement: The Illinois Supreme Court goes its own way By Shawn Wood & Kathryn S. Clark March 2006 When an insured defendant is served with a complaint containing claims which may be covered by a policy of liability insurance, the dance that ensues between the insured and insurer has always been built on a foundation of mutual distrust.

Jury selection: Selling your case By James A. Hansen June 2006 The work of any good trial lawyer starts with selling his or her case to a prospective jury panel.

Letter to the Editors regarding “How to Handle an Employer’s Group Health Plan Lien” (January, 2006, Vol. 51, No. 4) By Craig S. Mielke April 2006 I read with interest the above article. Having learned some of these lessons the hard way (I was on the losing end of Administrative Committee of Wal-Mart Stores, Inc. Associates Health and Welfare Plan v. Hummel, 777 Fed. Appx. 891 (7th Cir., 2003)), I must caution Trial Briefs readers that an extremely critical practice pointer was left out of this article.

Licensed to testify? A change in focus for medical expert qualifications By D.J. Evans December 2006 A plaintiff’s expert physician offers what he believes would have been the proper course of treatment and its purported effectiveness had the defendant properly diagnosed the patient’s medical condition

Mazin v. Chicago White Sox: The Sox strikeout on tort immunity By Hon. Michael P. McCluskey February 2006 A brief summary of a well-written opinion by Justice Robert Cahill of the First District Appellate Court in Mazin v. Chicago White Sox, Ltd.

Melena v. Anheuser-Busch, Inc.: Further enlightenment from the Supreme Court on the dichotomy between mandatory arbitration agreements and public policy By Richard L. Turner, Jr. November 2006 Illinois has a long-standing public policy of protecting workers from retaliation for filing workers’ compensation claims.

Offers of proof: What are they and when do you need them? By Patrick M. Kinnally April 2006 The trial court has entered an order which declares the dissolution of marriage complaint that was filed three months previous is: (1) set for trial in 60 days; and that if either party wanted to call more than two witnesses it had to request a pretrial conference seven (7) days before trial.

Personal Jurisdiction.com revisited: In the wake of Jennings v. AC Hydraulic, both federal and state courts look for guidance as to “how much interactivity is enough?” By Kris R. Murphy March 2006 This article examines the search for guidance in answering the question left undecided in Jennings, as illustrated by three recent opinions in which federal and state courts looked beyond Jennings when confronted with defendants’ motions arguing that the Web sites in question were not “interactive” enough to justify the exercise of jurisdiction.

Pre-trial dismissal based on other affirmative matter: An open invitation has its limits By David H. McCarthy January 2006 An examination of the use and abuse of section 2-619(a)(9) and how its misuse might be controlled.

Promissory estoppel: Shield or sword? By Russell W. Hartigan & Victoria R. Benson February 2006 According to the court’s majority in the Fifth District’s decision of DeWitt v. Fleming, promissory estoppel may be used as a defense but not as a cause of action.

Recent court pronouncements continue to shape nationwide pro-arbitration policies By Joshua C. Smith September 2006 The universe of private civil dispute resolution is divided into two worlds these days: there is the traditional judiciary and there is private arbitration via contract.

Redmond v. Socha: Inconsistent verdicts in personal injury cases By Maureen R. De Armond April 2006 Sometimes accidents just happen. So says the Illinois Supreme Court.

Reply to Letter to the Editors Regarding “How to Handle an Employer’s Group Health Plan Lien” (January, 2006, Vol. 51, No. 4) By Robert T. Park April 2006 I have reviewed Mr. Mielke’s letter and the Varco case.

Requests to Admit: Vision Point of Sale v. Haas By Michael J. Marovich December 2006 On November 29, 2006 the Illinois Supreme Court granted a petition for leave to appeal in the case of Vision Point of Sale, Inc. v. Haas, 366 Ill.App.3d 692, 852 N.E.2d 331 (1st Dist. 2006).

Response to article by John B. Kincaid, “Attorney’s Retaining Lien, Circa 1889” in Trial Briefs, March 2006 By Eugene Crane June 2006 Bankruptcy changes the rights of parties to the proceeding even if valid elsewhere.

Ruminations on Rule 216 and considerations of substantial justice By Hon. Daniel T. Gillespie October 2006 This rule is to be liberally construed to do substantial justice between or among the parties. —Illinois Supreme Court Rule 213(k) on written interrogatories.

Settlement: A plaintiff’s attorney’s personal guarantee to pay liens is found to violate the Rules of Professional Conduct By Steven G. Pietrick November 2006 One of the “speed bumps” in the path to the settlement of cases is the resolution of liens and subrogation claims.