2008 Articles

10-Year limitations period applies to indemnity suit By Robert T. Park August 2008 In Travelers Casualty & Surety Co. v. Bowman, Docket No. 103759, 2008 WL 2837323 (July 24, 2008), the Supreme Court held that the 10-year statute of limitations applied to a suit on a written indemnity agreement arising from defaults under construction contract performance bonds.

Another blow to tort reform By D.J. Evans August 2008 Much is happening to the status of medical malpractice cases in Illinois.

Another court applies the collateral source rule By Robert T. Park January 2008 The April 2007 decision in Wills v. Foster held that when Medicare and Medicaid discount the recoverable medical bills, the plaintiff will receive a comparably reduced recovery. Another district of the appellate court has now weighed in on the same question with a contrary ruling.

Attorney’s caveat—Fair Credit Reporting Act, 15 USC §1681 By John B. Kincaid May 2008 For a country lawyer who spends little time in the Federal Court, it was an eye-opening experience for me to realize that attorneys can run afoul of the Federal Fair Credit Reporting Act with little effort.

BlackBerrys, depositions, and the Illinois Rules of Professional Conduct By David S. Schott May 2008 Even though the BlackBerry and similar devices can benefit the lawyer while he or she is out of the office, the use of such a device during a deposition can cause a lawyer to run afoul of the Illinois Rules of Professional Conduct.

Caution: Res judicata may bar the refiling of a voluntarily dismissed claim By Timothy J. Chorvat & Sarah S. Ruff June 2008 In January of this year, the Illinois Supreme Court decided Hudson v. City of Chicago, No. 100466, 2008 Ill. LEXIS 12 (Ill. Jan. 25, 2008), rehearing denied April 28, 2008.

Czarnik v. Wendover: An application of collateral estoppel to arbitration By Hon. Daniel T. Gillespie June 2008 The Restatement (Second) of the Law of Judgments refers to res judicata and collateral estoppel as former adjudication.

Due process requires live testimony to judge witness credibility By John J. Holevas February 2008 The Second District of the Illinois Appellate Court in Anderson v. Kohler, 376 Ill.App.3d 714, 877 N.E.2d 110, 315 Ill.Dec. 623 (2nd Dist. Oct. 4, 2007), recently reversed the lower court’s decision for relying on a transcript of plaintiffs’ case-in-chief from a prior trial rather than allowing the plaintiffs to present their case-in-chief anew.

ERISA and the Common Fund Doctrine: A precept By D.J. Evans October 2008 If you have dealt with a so-called ERISA lien before, you are trained to spot these liens from a mile away and already know the consequences. However, if this is your first heavyweight bout with the albatross which is referred to as the ERISA lien, you simply have no idea what you are about to encounter.

The First District examines standards for reviewing Section 2-615 motions in legal malpractice cases and clarifies the solvency rule By Kimberly A. Davis April 2008 In July 2007, the First District Appellate Court addressed the sufficiency of a legal malpractice complaint in Visvardis v. Ferleger.

Illinois Supreme Court Rule 315(c)(3): An appellate trap for the unwary By Matthew R. Carter October 2008 Illinois Supreme Court Rule 315 establishes rules for preparing an appeal from the Illinois appellate court to the Illinois Supreme Court. Ill. Sup. Ct. Rule 315.

The Illinois Supreme Court Sheds Light on the “Gray Areas” of the Relation-Back Doctrine in Porter v. Decatur Memorial Hospital By Michele M. Jochner March 2008 The question presented in Porter v. Decatur Memorial Hospital, 2008 Ill. LEXIS 10, Docket No. 104441 (Jan. 25, 2008), was whether, pursuant to section 2-616(b) of the Code of Civil Procedure (735 ILCS 5/2-616(b)(West 2004)), count III of plaintiff’s second amended complaint related back to his timely-filed original and first amended complaints and, therefore, whether plaintiff’s motion for leave to file a second amended complaint was improperly denied as time-barred.

Indemnification redux: The Supreme Court rings in on contractual indemnification clauses in Buenz v. Frontline Transportation Company By Richard L. Turner, Jr. March 2008 Be mindful of drafting considerations with respect to “any and all” type language in indemnification provisions-at least outside the construction industry or the managed care health care field.

Maintaining separate actions in various judicial circuits in Illinois and/or other states By John J. Holevas December 2008 In re: Marriage of Gary, 894 N.E.2d 809 (2d Dist. 2008), the Appellate Court for the Second District clarified under what circumstances a trial court may enjoin the parties to a suit from maintaining separate causes of action in multiple Illinois circuit courts or in other states.

Minimal property damage as evidence of non-injury By John B. Kincaid December 2008 Despite the youth of the century, the Twenty-First has already spawned six cases from four Appellate Court districts dealing with defense efforts to establish lack of plaintiff’s injury by showing minimal vehicle contact.

Motions attacking motions: A plea to end the violence By Anthony Longo March 2008 The author suggests that next time we are vexed by another party’s motion, we should remember IRMO Sutherland and Wolff and resist the urge to move to strike or dismiss. Such a motion is a nullity and unnecessarily clogs the motion calendars of the circuit court.

New jury instruction regarding a deadlocked jury December 2008 In a large proportion of cases absolute certainty cannot be expected nor does the law require it.

Public policy strongly favors contribution claim settlements: The Pierre Condominium Assn v. Lincoln Park West Associates, LLC By Richard L. Turner, Jr. March 2008 Although parties to contracts are free to waive or override other statutory provisions or protections, parties are not permitted to waive or ignore the good-faith settlement provisions incorporated within the Joint Tort Feasor Contribution Act, according to the recent decision in The Pierre Condominium Association v. Lincoln Park West Associates, LLC.

Recent amendments to the Illinois Supreme Court rules By Michele M. Jochner January 2008 Since the beginning of this calendar year, the Supreme Court of Illinois has made several amendments to its Rules. Outlined below are highlights of some of the most significant amendments.

Supreme Court Rule 236 and the admissibility of medical records at trial By Stephen C. Buser December 2008 Illinois Supreme Court Rule 236 can be a useful tool for the admission of medical and hospital records into evidence at trial, eliminating the need for a party to spend hundreds or perhaps thousands of dollars to have a medical doctor, nurse or other health care professional testify in court or by evidence deposition to have the records admitted.

“Tactical gamesmanship” and trial practice: Can it be good advocacy? By Patrick M. Kinnally April 2008 Playing by the rules applies to each party regardless of whether they are on opposite sides of the aisle. If it becomes otherwise, the keystone of those rules will be undermined, thereby making the trial process an also-ran and other than what all litigants, or their counsel, expect.

Tedrick v. Community Resource Center Inc. & the theory of transferred negligence in medical negligence actions By John J. Driscoll January 2008 In Tedrick v. Community Resource Center Inc., et al., the Fifth District Appellate Court recognized a legal duty in a medical negligence action based upon the theories of voluntary undertaking and transferred negligence where Plaintiff-decedent was killed by her mentally ill husband while he was under the psychiatric care of Defendant health care providers.

Trial court erred in allowing defendant to withdraw rejection of arbitration award By John J. Holevas April 2008 The Second District Appellate Court recently reversed a lower court’s decision in Stemple v. Pickerill, which allowed the defendant to withdraw his rejection of an arbitration award made pursuant to the court annexed mandatory arbitration program, while denying the plaintiffs from filing their own rejection of such an award.

A trial lawyer’s reminiscences By Jack E. Horsley May 2008 Editor’s note: Last year, Jack E. Horsley sent a letter to me as co-editor of Trial Briefs stating that has been a long-time reader of our newsletter and expressing his appreciation for the fine caliber of articles we published. In an exchange of letters, Mr. Horsley sent a touching novella (“All About Biff”) about his beloved and faithful pet dog who saved a very young Jack from a vicious stray.

Twenty years since Asahi: Reviewing the still-uncertain “stream of commerce” theory By Seth L. Ellis May 2008 In 1980, the Supreme Court of the United States recognized the “stream of commerce” theory for obtaining personal jurisdiction over an out-of-state corporation.

Unsettling ruling on settlement agreement: Common provision declared unenforceable as penalty By J. Matthew Pfeiffer October 2008 A recent opinion from the Second District of the Appellate Court of Illinois holds that a clause in a settlement agreement providing for an acceleration of the amount due in the event of a breach thereof without any express reasonable basis for such acceleration constitutes a penalty and, therefore, is unenforceable.

The unwanted: Dead witnesses, The Dead Man’s Act and the Frauds Act By Patrick M. Kinnally February 2008 Although we do not like to acknowledge it, mortality will call someday. Oftentimes, we ignore what we should heed most. The making of a will or trust is scheduled for next week.

Update on new, revised, and withdrawn Illinois Civil Jury Instructions By Stephen C. Buser June 2008 The Illinois Supreme Court Committee on Jury Instructions in Civil Cases created and revised several civil jury instructions in the year 2007.

Veracity By John M. Stalmack July 2008 Unlike substantive character evidence in a civil or criminal case, the character trait for veracity discussed in this article only concerns either impeachment or rehabilitation.

What’s in a name: The Illinois Supreme Court identifies the limits on amending a complaint for review of an administrative decision when a necessary party has not been added By Susan M. Brazas January 2008 In Ultsch v. Illinois Municipal Retirement Fund, No. 102232, 2007 Ill. LEXIS (Aug. 2, 2007), the Illinois Supreme Court revisited, for the first time since 1990, the narrow allowances for amending a complaint for administrative review to add a necessary party which was not named in the initial complaint.