Trial Briefs

The newsletter of the ISBA’s Section on Civil Practice & Procedure

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2010 Articles

Admissibility of an expert opinion prior to or after class certification? By John J. Holevas July 2010 The 7th Circuit found that when an expert’s report or testimony is critical to class certification and forms the basis of plaintiff’s theory, a district court must conclusively rule on any challenge to the expert’s qualification or submissions prior to ruling on a class certification motion.
Arbitration primer for civil trial attorneys By Mark Rouleau April 2010 The basics you need to know about arbitration.
Award of costs to defendants as a condition to granting plaintiffs’ motion for voluntary dismissal By Bridget A. Mitchell January 2010 After reviewing the facts of the case and applicable law, the appellate court affirmed the trial court’s decision but modified the court’s order to state that costs awarded were due at the time of refiling the lawsuit but not as a condition to refiling the lawsuit.
Collateral estoppel: It is not an absolute By Patrick M. Kinnally October 2010 A look at a case decided just last month, Hurlbert v. Charles, which makes clear that prior adjudication of a claim or issue is not a complete bar against relitigation of that same claim or issue.
Common carrier’s duty to passengers versus the natural accumulation rule By John J. Holevas September 2010 In Krywin v. Chicago Transit Authority, the Illinois Supreme Court found that the consequences of requiring the CTA to inspect every platform for a natural accumulation of snow and ice every time a train was to discharge or take on passengers would bring the transit system to a standstill.
Decisions illustrate difficulties of slip and fall cases By Robert T. Park March 2010 Two recent decisions illustrate the requirements and attendant difficulties of successfully prosecuting a plaintiff’s personal injury claim arising from a slip and fall accident in Illinois.
eDiscovery issues: Possession, custody or control in the electronic age By Scott A. Carlson & Jay C. Carle March 2010 This is another article in a series about electronic discovery or “eDiscovery.” In this article we will discuss some of the issues that arise when one overlays the general standard of “possession, custody or control” on electronically stored information (“ESI”).
Fiduciary duty revisited By John B. Kincaid September 2010 A look at the recent case of Prignano v. Prignano, which in addition to fiduciary duty matters, also stands for current rulings on hearsay, interpretation of the Dead Man’s Act (735 ILCS 8-201) and the duty of a beneficiary to object to the premature closing of an estate and set off.
Fifth District revisits admissibility of vehicle photograph in auto accident litigation for the third time in three years By Stephen C. Buser May 2010 The Illinois Supreme Court may finally decide to provide lawyers involved in auto accident litigation with a “rigid line” or at least sufficient guidelines of when an expert is or is not required to have vehicle photographs admitted into evidence.
Forum non Conveniens clarified: Glass v. DOT Transportation, Inc. By Hon. Daniel T. Gillespie & Matthew Friedlander February 2010 For many judges and lawyers in Illinois, the doctrine of forum non conveniens appears to be a convoluted discretionary tool. Unlike a motion to transfer venue, which is a purely procedural matter, the doctrine offorum non conveniens allows the judge to transfer a case if he or she decides that hearing a case in the plaintiff’s choice of forum is unfair to the defendant or the public. The doctrine itself applies on an interstate and intrastate basis so long as venue is proper in both forums.
Fourth District discredits 30-year “legitimate-business-interest” test and ignores own ruling for restrictive covenants By George S. Bellas & A. Patrick Andes January 2010 Creating a district split, the Illinois Fourth District Appellate Court, in an opinion authored by Justice Steigmann, disregarded its own precedent and declared the “legitimate-business-interest” test “no longer valid, if it ever was.”
Illinois Supreme Court declares caps on non-economic damages in medical malpractice cases unconstitutional By Hon. Richard P. Goldenhersh June 2010 A discussion of some of the issues and arguments relating to the Lebron v. Gottlieb Memorial Hospital case.
Mortgage foreclosures: In rem or quasi in rem? The distinction that makes a difference By Robert Handley December 2010 In this recent case the Illinois Supreme Court reversed the appellate court and affirmed the circuit court, thereby dismissing the foreclosure action filed by ABN AMRO Mortgage Group.
A new approach to electronically stored information: An update on the Seventh Circuit Electronic Discovery Pilot Program By Timothy J. Chorvat & Christine P. Benavente July 2010 The Pilot Program will now expand, taking account the feedback received in Phase One. Phase Two began on July 1, 2010 and will run until May 1, 2011.
A new approach to electronically stored information: The Seventh Circuit Electronic Discovery Pilot Program By Timothy J. Chorvat & Christine P. Benavente January 2010 On October 1,2009, Phase One of the Seventh Circuit Electronic Discovery Pilot Program (“Pilot Program”) came into effect in participating federal courts in the Northern District of Illinois and other districts in the Seventh Circuit.
Nonlawyer advocates in administrative proceedings By Jeffrey A. Parness February 2010 In Grafner v. Department of Employment Security, 914 N.E.2d 520 (1st Dist. 2009), the court considered whether a nonlawyer hired from an employer services company could represent a former employer in an administrative proceeding before the Department of Employment Security (DES) in a case involving disputed employment compensation benefits allegedly owed a former employee.
1 comment (Most recent February 18, 2010)
“Physician” nets reasonable rate of $66.95 per hour for deposition By Kimberly A. Davis April 2010 An Illinois appellate court recently declined to define a reasonableness formula for calculating a physician's deposition fee.
1 comment (Most recent March 24, 2010)
Presenting the evidence: Direct examination By Hon. Barbara Crowder December 2010 The careful attorney will prepare for direct examination by deciding the facts that need to be proved via direct examination, then prepare for the actual examination, and finally prepare for the pitfalls that invariably occur when real people testify.
SLAPP has a bite By John B. Kincaid November 2010 In a flurry of appellate activity, Illinois now has four interpretations of the Citizen’s Participation Act--the first published appellate decisions interpreting the legislative purpose of the SLAPP statute passed by the Illinois Legislature in 2007.
1 comment (Most recent December 15, 2010)
SLAPPed with attorney fees: Awards pursuant to the Illinois Anti-SLAPP Act By Hon. James Fitzgerald Smith & Julia Illman Maness November 2010 Until the scope of the Anti-SLAPP Act is narrowed through legislation or judicial interpretation, this article's authors advise any attorney who is on notice that his or her actions may fall under the SLAPP matrix to proceed with caution.
Stapleton v. Moore: Cross-examination of a medical expert with a learned treatise By Hon. Daniel T. Gillespie October 2010 In Stapleton, the trial judge allowed defense counsel to cross-examine plaintiff’s expert with a medical article that was not disclosed in discovery. The appellate court affirmed.
1 comment (Most recent October 18, 2010)
Statutory publication notice provision inadequate to afford due process in this zoning case By Kimberly L. Dahlen May 2010 In a recent decision, the Illinois Supreme Court held that the notice provided by the City of Zion in this zoning case did not satisfy due process requirements pursuant to the Illinois Municipal Code.
Strip club may be liable for patron’s drunk driving By Robert T. Park May 2010 Plaintiffs alleged that defendant’s employees removed the intoxicated decedents from its club, ordered and assisted them into their car, and sent them away knowing the driver was drunk.
Supreme Court Rule update: “You’ve got mail” By Hon. Barbara Crowder March 2010 The Illinois Supreme Court has now amended Supreme Court Rules 11, 12, 361, 267, 373, 381 and 383 in recognition of the popularity and efficiency of third-party commercial carriers. Attorneys will no longer run afoul of the rules by accidentally using a commercial carrier over the Postal Service when filing documents with courts or applying the mailbox rule to deadlines.
Thornton, known for emotional distress, is notable for the Single Recovery Rule and set offs By John B. Kincaid March 2010 Thornton v. Garcini, (2009 WL 3471065) was decided by the Illinois Supreme Court in a concise compact opinion authored by Justice Kilbride on October 29, 2009. The case raises issues unique to the civil practice arena as well as the medical negligence forum. As of the preparation of these remarks, the opinion remains subject to revision or withdrawal.
Voir Dire: How and why we can participate By Patrick M. Kinnally January 2010 Every attorney who litigates civil or criminal cases wants to know whether a trial court judge alone is going to pick the jury, let the trial attorneys perform that task, or make a decision about jury selection which reflects a little of both. 
Where does a corporation “do business”? By Laura L. Milnichuk & William J. Perry June 2010 In the recently decided case of Hertz Corporation v. Friend, the U.S. Supreme Court held that a “principal place of business” is “the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities."