2007 Articles

Admissibility of medical records at trial under Illinois Supreme Court Rule 236 By Brett J. Swanson June 2007 It has long been the law that medical experts may base their opinions upon medical records not admitted in evidence at trial.

Admissions By John M. Stalmack August 2007 The editors of Trial Briefs are grateful to John Stalmack for submitting this thorough discussion of admissions.

Admissions By John M. Stalmack July 2007 The editors of Trial Briefs are grateful to John Stalmack for submitting this thorough discussion of admissions.

Bad-Faith Requirement for Fee Shifting in the Consumer Fraud Act: Krautsack v. Anderson By Allen S. Goldberg & W. Dan Lee September 2007 The Supreme Court of Illinois in Krautsack v. Anderson recently held that fee awards to a prevailing defendant under section 10a(c) of the Act should be granted “only if the trial court makes a threshold finding that the plaintiff acted in bad faith.”

Can an unlicensed law firm recover in a suit for attorney fees? By Hon. Daniel T. Gillespie May 2007 One interesting aspect of contract law is that, if a contracting party is not properly licensed, the party may not be able to recover in a contract action for nonpayment of fees earned.

Can an unlicensed law firm recover in a suit for attorney fees? By Hon. Daniel T. Gillespie January 2007 One interesting aspect of contract law is that, if a contracting party is not properly licensed, the party may not be able to recover in a contract action for nonpayment of fees earned.

Caveat emptor: Your non-Illinois purchase might mean no Illinois jurisdiction By J. Matthew Pfeiffer June 2007 A recent opinion from the Second District of the Appellate Court of Illinois puts Illinois residents on notice to be careful when it comes to transacting business with non-Illinois companies.

Civil Practice CLE is visiting New Orleans By Michael P. McCuskey March 2007 Yes, we are going to New Orleans. Let the good times roll when the Civil Practice Section Council presents a CLE program on trial practice in New Orleans on Friday, May 4, and Saturday, May 5.

The Collateral Source Rule and Vehicle Photos: Two Recent Cases By Robert T. Park May 2007 Two decisions were handed down recently by the Illinois appellate court that are important to personal injury practitioners.

Contacting an opponent’s employee and former employees By Mark Rouleau December 2007 This article addresses the scope of the attorney-client privilege with respect to counsel’s contact with employees of an opposing party.

Court reinforces prohibition against using deceased party’s discovery deposition as trial evidence By Kathryn R. Hoying October 2007 In the matter of Longstreet v. Cottrell, Inc., 374 Ill.App.3d 549, 871 N.E.2d 72 (5th Dist. 2007), the appellate court reconciled Illinois Supreme Court Rules 212(a)(3) and 212(a)(5), and affirmed the trial court’s order barring the use of a deceased plaintiff’s discovery deposition as evidence at trial. Plaintiffs, a truck driver and his wife, filed suit for bodily injury and loss of consortium allegedly suffered in connection with the husband’s employment.

Court reviews jury instructions, expert testimony, remittitur and post-judgment interest By Kathryn R. Hoying February 2007 In the recent strict products liability case of Mikolajczyk v. Ford Motor Co., the court resolved a number of issues where a decedent’s estate alleged a defective design of a collapsing front seat against Ford, and negligence against the other driver, whose negligence was determined by summary judgment.

Do motions in limine preserve error? By Robert T. Park February 2007 Anticipating key evidentiary issues in an upcoming trial, you file a motion in limine to exclude certain harmful evidence.

E-discovery now, not later—New Federal Rules of Civil Procedure By Michael J. Hanson February 2007 When the new amendments to the Federal Rules of Civil Procedure went into effect December 1, 2006, life got tougher for some attorneys who scrupulously avoid dealing with electronic data issues. A not uncommon approach has been to defer dealing with issues related to the discovery of electronically stored information (ESI) until later in the case, hoping that later will become never.

The “empty chair” defense at trial By Steven G. Pietrick January 2007 It is common for defense attorneys to speak of pointing to an “empty chair” at trial in order to shift the responsibility from their client to another entity which is not a party in the case.

Enforceability of Class Action Waivers: Kinkel v. Cingular Wireless, LLC By Allen S. Goldberg & W. Dan Lee April 2007 The Kinkel court stands for the proposition that the question of the unconscionability of a class action waiver, even if it is contained in the mandatory arbitration clause, must be determined on a case-by-case basis.

Fifth District grants new trial on damages when jury’s verdict is inconsistent with the evidence By Stephen C. Buser December 2007 Illinois law provides that a trial court may order a new trial if the damages are manifestly inadequate and a proven element of damages was ignored.

Filing of general appearance does not waive jurisdictional objection By H. Allen Yow March 2007 In the recent decision of KSAC Corporation v. Recycle Free, Inc., the appellate court held that based on 735 ILCS 5/2-301, the defendant’s filing of a general appearance did not wave its jurisdictional objection.

How a missing affidavit reduced a jury verdict: Supreme Court Rule 222(B) By Patrick M. Kinnally September 2007 Evelyn Grady was in a car wreck with Noelia Marchini. Grady filed a complaint against Marchini on August 3, 2004.

Illinois law governs products case with complicated conflict of law analysis By Kathryn R. Hoying February 2007 The recent case of Townsend v. Sears Roebuck and Co., involves a conflict of laws analysis regarding strict liability, punitive damages and limits (“caps”) on noneconomic damages between Illinois and Michigan.

IPI notes and comments: Dicta or Law? By Susan M. Brazas January 2007 Many trial attorneys can attest to the uphill battle faced by anyone proposing departure from IPI, the Illinois Pattern Jury Instructions.

It’s not just paperwork: Insuring due process in the service of summons By Patrick M. Kinnally October 2007 When discord arises requiring litigation, equity requires the playing field to be even for both the plaintiff and the defendant.

Legislation: Medical and Legal Records September 2007 Public Act 478 and PA 95-480 amend 735 ILCS 5/8-802, 8-2001, 8-2005, and 8-2006 of the Code of Civil Procedure affecting medical or legal records: (1) Allows charging for the actual postage or shipping charge of the records; (2) Clarifies that records retrieved from scanning, digital imaging, electronic information or other digital format do not qualify as microfiche or microfilm retrieval for calculating charges under this statute.

Madison County’s new medical malpractice rules October 2007 The Illinois Supreme Court approved Madison County’s new rules dealing with medical malpractice cases.

The mailbox rule does not apply to refiling of a voluntarily dismissed complaint By Kimberly L. Dahlen December 2007 In Wilson v. Brant, 374 Ill.App.3d 306, 869 N.E.2d 818 (1st Dist. 2007), a unanimous First District Appellate Court determined that the mailbox rule does not apply to the commencement of any action, specifically in this case, where a plaintiff refiled a complaint after taking a voluntary dismissal.

MCLE credit and newsletter authors October 2007 According to Rule 795(d)(7) of the Supreme Court of Illinois’ Minimum Continuing Legal Education Rules, authors who write “law-related articles in responsible legal journals or other legal sources” can get MCLE credit.

MCLE credit and newsletter authors September 2007 According to Rule 795(d)(7) of the Supreme Court of Illinois’ Minimum Continuing Legal Education Rules, authors who write “law-related articles in responsible legal journals or other legal sources” can get MCLE credit.

MCLE credit and newsletter authors August 2007 According to Rule 795(d)(7) of the Supreme Court of Illinois’ Minimum Continuing Legal Education Rules, authors who write “law-related articles in responsible legal journals or other legal sources” can get MCLE credit.

Minimum contacts with your out-of-state expert By Kelli E. Gordon May 2007 Hiring an expert from another state may subject you to jurisdiction in that state.

Pay[ment] attention: a lesson in avoiding unintended accord and satisfaction By J. Matthew Pfeiffer May 2007 A fairly recent decision from the First District of the Appellate Court of Illinois will likely have corporate office managers, accounts receivable employees, and the like, double-checking each payment and correspondence received from their customers to make sure the fate that met the plaintiff in MKL Pre-Press Electronics/MKL Computer Media Supplies, Inc. v. La Crosse Litho Supply, LLC, 361 Ill.App.3d 872, 840 N.E.2d 687 (1st Dist. 2005), does not befall them.