Trial Briefs

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

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2017 Articles

Appellate court confirms importance of Dead Man’s Act in surviving litigation By Jason G. Schutte September 2017 The Dead Man’s Act can be a very effective tool in defending personal injury claims. It can be used to wholly defeat a negligence case, as occurred in Spencer v. Strenger Wayne.
Conflicts of interest and the duty of the insurance company to defend By Jason G. Schutte March 2017 When is an insured not required to utilize an insurer-retained attorney in defending an underlying lawsuit?
A “deadline” is the date or time before which a task must be completed By Robert Handley November 2017 In this case, the Notice of Appeal was due on December 14, 2016. However, Plaintiff did not file until December 21, 2016. Further, Plaintiff did not file an Illinois Supreme Court Rule 303(d) “Motion for Leave to File a Late Notice of Appeal.”
Determining whether absolute or qualified immunity applies to a prosecutor’s conduct By Alex Yorko May 2017 A review of when a prosecutor is entitled to qualified immunity or absolute immunity from civil damages.
Eliminating statutes of limitations for all sexual-related offenses By Alex Yorko May 2017 Should the statutes of limitations for all sexual assaults be eliminated?
Enforcing a federal judgment in Illinois By Allison M. Huntley February 2017 The process of initiating formal collection efforts may be unfamiliar to some attorneys. This article provides guidance on how to begin the process.
How to draft a contempt order By Hon. Leonard Murray January 2017 A discussion of the legal requirements of a contempt order.
Is hearsay a pleading objection? By Gary L. Schlesinger July 2017 The procedure of objecting to a statement of fact in a pleading on the grounds of inadmissible hearsay is neither appropriate nor sanctioned by Illinois law.
Jury instruction update: “Do you hear what I hear?” By Hon. Barbara Crowder August 2017 A discussion of the 2017 changes made thus far to Illinois Pattern Jury Instruction for Civil Cases since the revisions focus on language access.
A lie or a slip of the tongue? The basics of judicial estoppel after Seymour v. Collins By Allison M. Huntley November 2017 As a practical matter, the case of Seymour v. Collins highlights the factual analysis that goes into the decision to apply judicial estoppel, and there are lessons here for both defendants bringing dispositive motions and plaintiffs responding to them.
Limiting the general: How practitioners can (and should) use the ejusdem generis rule of construction in everyday practice By Matthew R. Davison December 2017 Across the legal spectrum, the rule of ejusdem generis remains an eloquent and aged technique for articulating rational limitations on ostensibly general phrasing.
Message from the Chair By Laura L. Milnichuk June 2017 A message from Chair Laura Milnichuk.
No effort, no immunity under Snow and Ice Removal Act By Jason G. Schutte June 2017 The Illinois Supreme Court recently discussed the limitations of the Illinois Snow and Ice Removal Act in Murpy-Hylton v. Lieberman, et al.
Obtaining attorney fees in voluntary lawyer program cases By Gary L. Schlesinger July 2017 There are several cases in Illinois dealing with legal services’ attorneys collecting fees for representing legal services’ clients from an opposing client who has paid his or her own attorney.
Pleadings under the Probate Code: A simple design By Patrick M. Kinnally February 2017 The Probate Act sets forth the pleading requirements for a claim against an estate. Unfortunately, the Act is silent on the pleading requirements for a counterclaim or an affirmative defense.
The question of possession, custody, or control in production By George S. Bellas & Michael Rizo January 2017 Unfortunately, the F.R.Civ.P. do little to define the meaning of “possession, custody or control,” leaving parties to determine the definition from case law.
Recent case concerning contempt By Gary L. Schlesinger March 2017 An examination of Knoll v. Coyne.
Respondents in discovery: A procedure for streamlining litigation when used properly By James J. Ayres August 2017 The Illinois Code of Civil Procedure recognizes three categories of participants in a lawsuit, Plaintiff, Defendant, and Respondents in Discovery. This article will focus on the third category.
Revisiting long-arm jurisdiction: Kowal v. Westchester Wheels, Inc. By Sara M. Davis November 2017 The Kowal decision provides litigants with a concise overview of specific jurisdiction in the context of a products liability case. It is a useful opinion providing direction on the elements necessary to meet or defeat specific jurisdiction.
1 comment (Most recent November 16, 2017)
Say goodbye to boilerplate objections and responses to discovery requests By George S. Bellas & Misty J. Cygan May 2017 For many attorneys and law firms it is standard practice to object to most, if not all, discovery requests with the boilerplate language that a request is overly broad or unduly burdensome. This practice necessitates more meet and confer conferences and motions to compel resulting additional costs to litigate. The 2015 amendments to Rule 34 were intended to curtail this type of practice. However, up until recently judges have been dillydallying in enforcing the new rule.
1 comment (Most recent May 3, 2017)
Service of process on corporations and limited liability companies By Joel L. Chupack July 2017 There are two significant differences in service on a corporation as opposed to a limited liability company. One of these differences is during the entity’s existence. The other is after its dissolution.
1 comment (Most recent July 10, 2017)
Social media as evidence? By George S. Bellas & Michael Rizo February 2017 Although the information on individual posts on social media may be used as evidence, applying evidentiary rules to social media information can be daunting. The social media information – now known as electronically stored information (ESI) – must pass the same evidentiary hurdles as any tangible document, with some additional obstacles.
Stanphill v. Ortberg: The need for clarity in the submission of a special interrogatory to the jury By Richard L. Turner, Jr. December 2017 Recently, in its decision in Stanphill v. Ortberg, the appellate court had an opportunity to reexamine the law in the circumstances where the general verdict appears to be in conflict with the answer to the special interrogatory submitted to the jury.
Stipulation versus guilty plea: Are both admissions? By Hon. Eugene G. Doherty August 2017 It is likely that most defendants who stipulate to the underlying facts rather than pleading guilty do so on the advice of counsel, and specifically with the intention of avoiding an admission which might be used against them in a civil case. But really … can it be that easy?
2 comments (Most recent October 20, 2017)
Survival of claims—Renunciation of wills By Patrick M. Kinnally September 2017 What happens if the surviving spouse dies before a renunciation is filed? Can the executor of the surviving spouse file a renunciation of the will during the seven-month period? The answer appears to be “no."
Trial lawyers make bad jurors and I can prove it By Charles Shifley September 2017 Trial lawyers don’t always make the best jurors, as one recent experience in an Illinois court shows.
1 comment (Most recent September 15, 2017)
Uncertainties when only principals are sued for the acts of agents By Jeffrey A. Parness & Alex Yorko January 2017 The court in Yarbrough said that generally a claimant need not join an agent when suing a principal. Yet lawyers in civil cases alleging vicarious liability of a principal must proceed with caution regarding nonjoinder of the agent as sometimes there will operate a res judicata defense.
Upholding the ban on common law marriage in Illinois By Ashley DiFilippo Davis March 2017 Even when there is an interesting issue before the court--as in the recent case of Blumenthal v. Brewer--without jurisdiction, no case can survive.
Yarbrough v. Northwestern Memorial Hospital: Expansion of apparent agency principles or a new application of existing law? By Sara M. Davis January 2017 Can a hospital be held vicariously liable under the doctrine of apparent agency set forth in Gilbert v. Seymour Mun. Hosp. and its progeny for the acts of the employees of an unrelated, independent clinic that is not a party to the present litigation?