DOCKETTH

E

The Official Publication of the Lake County Bar Association • Vol. 25, No. 9 • September 2018

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THE DOCKET EDITORIAL COMMITTEEJeffrey A. Berman,Co-Editor

Hon. Charles D. Johnson,Co-EditorJennifer C. Beeler

Hon. Michael J. FuszDeborah L. GoldbergHon. Daniel L. Jasica

Sarah A. KahnKevin K. McCormick

Hon. Raymond J. McKoskiTracy M. Poulakidas

Stephen J. RiceNeal A. Simon

Hon. James K. SimonianMichael S. Strauss

Rebecca J. WhitcombeAlex Zagor

STAFFDale Perrin

Executive DirectorVirginia M. Elliott Assistant Director

Jose Gonzalez Administrator

ContentsTHE DOCKET • Vol. 25, No. 9 • September 2018

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FEATURES 8 The Case of…the Learned

Treatise Conundrum BY THE HONORABLE THOMAS

M. SCHIPPERS

18 Incorporating RUFADAA into Estate Planning Documents

BY MICHAEL A. GOLDBERG

22 Judge Salvi: Rooted in Lake County

BY DELANEY HUNT

24 Facility Dog Simba: A First For Lake County & A First For The Nation

BY LAKE COUNTY PUBLIC DEFENDER JOY GOSSMAN

COLUMNS 2 President’s Page Audrey Nixon’s Mantra BY BRIAN J. LEWIS, PRESIDENT

4 The Chief Judge’s Page The Harbor BY CHIEF JUDGE JAY W. UKENA

6 Bar Foundation Continuing Our Efforts To

Support Youth At Risk BY JEFFREY A. BERMAN

PRESIDENT

28 The Meeting Minutes July 18, 2018 BY SHYAMA S. PARIKH

30 In the Director’s Chair Let’s Chat BY DALE PERRIN

LCBA EVENTS 3 2018 Annual Trusts

& Estates Seminar 5 New Members 5 Holiday Party 7 The Calendar of Events 7 LCBA Office Space 16 Rebels with a Cause 17 Learn & Laugh 19 Fall Luncheons 20 Member Reception 23 2018 Annual Criminal

Law Seminar 27 Child Representative

Training 32 Monthly Committee

Meetings

The Docket2

I never met Audrey Nixon. I wish I had. As I listened to the speeches about

Ms. Nixon at the dedication of Waukegan’s criminal court tower on July 17, it was evident how much of a loss

our community suffered with her passing.

Audrey served on the county board represent-ing North Chicago and other parts of Lake Coun-ty for nearly thirty-six years. She made history as the first African American woman to hold that posi-tion, and she held onto it, serving longer than any other commissioner of the Lake County Board. Over the years, Audrey was also a member of the school board of North Chica-go, the North Chicago Leadership Council, the NAACP Emblem Chap-ter 140, and the League of Women Voters. She was a past president of the Waukegan Township Coalition to Reduce Re-cidivism. Audrey made it her life’s purpose to help people, focusing on initia-tives that could transform lives for the better.

Audrey is the type of person we need right now.

Our country is divided in a toxic, dangerous way. Chil-dren are being separated from their families while the government “works out the details.” People are phoning in death threats to media outlets because they disagree with what is being reported (or how it is being reported). Sports stars are being criticized for peacefully taking a stand (or knee) for so-cial justice. And just the other day, LeBron James was portrayed as “stupid” after he gave an interview discussing his “I Promise School” program which guarantees free tuition, free meals, free uniforms, free bicycles and helmets, and family access to food pantries for 240 at-risk 3rd and 4th graders. (“I Prom-ise” also guarantees college tuition to the University of Akron for all graduates of the program).

We need Audrey Nixon’s calm right now.

We need her persistence and her understanding. According to those who worked closely with Audrey over the years, Audrey’s mantra was that, despite our differences, which oftentimes make us angry and critical, we must work together to fix the problems before us.

Audrey was intelli-gent. She always under-stood the issues. And when standing face to face with someone who disagreed with her, she would say, “I understand all of this, but we have to work together.”

And if you stop to think about those words, there can be no reasonable response other than agree-ment. Walking away is not an option. Taking to social media to simply criticize those on the opposite side of the debate (or wall) won’t accomplish anything productive. In order to effectuate meaningful re-

Audrey Nixon’s Mantra

President’sPage

The

BY BRIAN J. LEWISPRESIDENT

2017-18 OFFICERS & DIRECTORS

Brian J. LewisPresident

Stephen J. RiceFirst Vice President

Patricia L. CornellSecond Vice President

Joseph M. FuszTreasurer

Shyama S. ParikhSecretary

Jennifer J. HoweImmediate Past President

Tara R. DevineTorrie M. Newsome

Hon. Christen L. BishopKatharine S. Hatch

David R. Del ReThomas A. Pasquesi

September 2018 3

form, we must stay in the game and work together.

The Audrey H. Nixon Pedestrian Bridge span-ning Washington Street is a daily, visible reminder that we must always strive to bridge the gap. No mat-ter how opposed we are to another’s perspective, we must respectfully collab-orate regardless of how difficult it may be.

Audrey was known for her strength and unwav-ering optimism. Today, more than ever, we need to heed Audrey’s mantra and work with each other, not against each other. We need to be persistent together, instead of build-ing a wall to permanently divide our beliefs.

Audrey Nixon will be missed by us all. But

we must practice what she taught us and work

together to survive these challenging times.

Visit the LCBA Website: lakebar.org

2018 Annual Trusts & Estates SeminarFriday, November 9, 201812:00 – 12:30 Registration and Lunch

12:30 – 4:45 Seminar

Knollwood Country Club4.0 CLE Hours

Reception immediately following seminar

Registration open at www.lakebar.org

The Docket4

On July 30th, 2018, I moved into the new Chief Judge’s cham-

bers on the eighth floor of the new Criminal Court Tower. Every day I am treated to expansive views out of my window which faces to the east. I have a particularly beautiful view of the marina and Wauke-gan Harbor. Seeing that view everyday piqued my interest and inspired me to research the historical be-ginnings of the Waukegan

Harbor and how it affected the development of what is now the City of Waukegan.

As many of us know, Waukegan was initially a trading post established by the French in the late seventeenth century. The trading post eventually became known as Little Fort. The first non-indige-nous settlers arrived in the Lake County area in the late 1830s. By 1849, the town of Little Fort had a population of 2000 people and many

of the citizens decided they were no longer interested in being called “little”. They then changed the name of the community to Wauke-gan which is the Algon-quin (Pottawatomie) word for trading post. At the lakefront, Waukegan had a natural harbor. This helped secure Waukegan as the county seat for Lake County and the population grew steadily thereafter.

In 1846, Illinois Con-gressman John Wentworth

introduced a petition pray-ing for an appropriation for the construction of the harbor and a lighthouse at Little Fort on Lake Michi-gan to enhance the already natural harbor. Congress provided $4,000.00 for a lighthouse in 1847 and two years later, a brick tower measuring approximately thirty-five feet tall with six rooms and a one-and-a-half story lighthouse keeper’s dwelling were completed. The tower tapered from a diameter of twelve feet, nine inches at its base to seven feet at the lantern room. This was the first of many efforts to slowly develop the harbor.

In 1860, a wooden tower was built atop the keeper’s dwelling and an octago-nal cast iron lantern was installed therein. With the new lighthouse in place, the old brick house was demolished. In 1868, new out buildings were added to the station and the light-house was fenced in. The tower was then repainted in 1880. John Williams was

The HarborChief Judge’s

Page

The

BY CHIEF JUDGE JAY W. UKENA

September 2018 5

appointed keeper of the Waukegan lighthouse in 1865 and held that position for 27 years until he was replaced by George Larson Jr. in April 1892. During this time, in the early 1880s, another appropriation of $15,000.00 was approved to further develop the harbor in Waukegan.

In 1881, work began on two projecting piers to en-close the harbor and protect vessels while in port. This ended up taking over two decades to complete and costing almost $200,000. The piers finally reached their full projected lengths in 1898 and a temporary iron post light was estab-lished at the outer end of the north pier. Then, in 1902, a River and Harbor Appropriations Act made provisions for an improved harbor with a depth of twenty-one feet at Wauke-gan. In 1905, a metal tower was located to mark the out end of the South Pier which now extended fourteen hundred feet. In 1906, a steel two-story fog signaling building lined with bricks was attached to the previ-ously described tower.

Frederick Rattoner was promoted to be the head keeper of the Waukegan lighthouse in 1902. Unfor-tunately, tragedy struck in December of 1907 when Mr. Rattoner apparently slipped on the pier and disappeared into the cold and icy waters of Lake Michigan. Being the sole person on duty the only clue to his disappear-ance was his hat that was found floating in the water nearby. His body wasn’t discovered until approxi-mately a year later.

In 1909, a two-story red

brick double dwelling was built on shore for the head keeper and the assistants. The structure had six rooms on each side. In 1939, a light atop of the tower became electrified and a new fog sig-nal was installed. However, in 1967 a fire broke out in the fog signal building nearly destroying the structure and the attached tower. Today, the upper portion of the old tower is still there and paint-ed green. The 1909 keeper’s dwelling remains standing on the corner of Madison and Harbor Place and re-cently became the home of a deli and bait shop.

There have been six different River and Harbor Acts that have helped to develop the harbor. Those are the River and Harbor Acts of 1800, 1882, 1902, 1945, 1965 and 1970. The harbor is protected by 6,051 lineal feet of timber crib, steel sheet pile or concrete caisson breakwater struc-tures and 1,076 lineal feet of steel pile revetment.

The traffic in and out of Waukegan Harbor pres-ently is almost six hundred tons every five years. Today the harbor helps to support the Waukegan Marina and Akko Nobel Aerospace Coatings. In addition to the previously mentioned bait and tackle shop, the US Coast Guard has a station at Waukegan Harbor which serves over five thousand local area boaters. The Harbor House is still there, along with the Waukegan Yacht Club, the La Farge Corporation, Slordahl Engineering Company, St. Mary’s Cement Company, National Gypsum Com-pany, Larson Marina and Bombardier Motor Corpo-

ration. Also on the har-bor, the City of Waukegan Water Plant has been and continues to be an integral part of the development of Waukegan.

Without the harbor, the development of this part of the county would not have taken place at the same rate or pace and Lake County and the Waukegan/North Chicago area would not have developed into the industrial area that it did. Today, as I peer out the window of our new state-of-the-art courthouse, it’s fascinating to contemplate how this historical lineage of development shaped what Waukegan and Lake County have become today. From a naturally formed harbor trading post to a modern 21st Century

county seat, the traces of Waukegan’s past are still visible for all to see.

New LCBAMembers

Welcome

AttorneysMarilee Roberg

Berger Legal ConsultingRobert I. Berger

Berger Legal ConsultingSarah M. Barnes

Lesser Lutrey Pasquesi & Howe

Bryan Hadley Law Office of John Currie

Associate MembersRocco Morisco

Rancillo & AssociatesMarina Diambri

Law Student

You are invited to the 2018 Annual Membership

Holiday Party December 7, 2018

5:00 - 7:30 PMHors d’oeuvres and Good Cheer

Lake County Bar Association300 Grand Avenue, Waukegan

Holiday Party

The Docket6

Through your Bar Foundation, the Lake County Bar works

to enhance justice, pro-mote fairness, support the disadvantaged, and much more. We provide sup-port in a variety of ways to organizations that enhance

our communities. And particularly for 2018, as you know, we have focused our efforts on youth at risk and the organizations that work with them. I wanted to share with you just a couple of ways in which the Foun-dation has been working lately to fulfill that role.

At our August meeting, the Foundation’s Board completed the process of evaluating applications for larger grants that we received in 2018. The appli-cations were reviewed and considered in light of both our broad mission and our 2018 youth-related initia-tive. I am pleased to inform you that at the conclusion of the effort, the Founda-tion Board voted to award grants to two outstanding local organizations – Nicasa Behavioral Health Services and Words on Wheels, Inc.

The grant to Nicasa will support their outstanding Teen Court program, which has struggled to overcome a complete loss of State funding in recent years.

Teen Court is the only alternative to the tradition-al criminal justice system for non-violent juvenile offenders in Lake County. Nicasa piloted Teen Court in 1996, in response to an ever-increasing recidi-vism rate among juvenile offenders. Teen Court offers a unique and innovative ap-proach to address juvenile crime. It is based on the premise that young people are less likely to re-offend after being involved in a process that exerts positive peer pressure in a non-pu-nitive setting and allows the youth to reconnect to the community through service. The program teaches youth to accept responsibility for their of-fenses, restore the damage that was done, and learn to make better choices in the future through sentencing by a jury of their peers. The results are impressive. Last

year, among the youth who successfully participated in Teen Court, only 6% were rearrested, compared to a 32% re-arrest rate among those who chose not to participate in the program, and a 50% recidivism rate state-wide. Since its incep-tion, more than 3,500 youth have been given a second chance through Nicasa’s Teen Court program to live delinquency-free lives. In addition to the direct benefit to the participants, moreover, Teen Court helps to relieve the burden on the traditional criminal court system, expedites the judicial process, and saves the community’s financial resources.

The grant to Words on Wheels will support their volunteer outreach pro-gram that brings books and enrichment activities to at-risk infants and toddlers. Inspired by the fact that

Continuing Our Efforts to Support Youth at Risk

BY JEFFREY A. BERMANPRESIDENT

Board of TrusteesJeffrey A. Berman

PresidentCarey J. Schiever

Vice PresidentJoann M. Fratianni

SecretaryMark B. Peavey

TreasurerMelanie K. Rummel

Immediate Past PresidentJennifer L. AshleyNandia P. Black

Patricia L. CornellDouglas S. Dorando

Hon. Fred Foreman (Ret.)Scott B. GibsonKenneth J. GlickDavid J. GordonKeith C. Grant

Amy L. LonerganFredric B. Lesser

Steven P. McCollumMichael G. NerheimNicholas A. RiewerPerry S. Smith, Jr.

Hon. Henry C. Tonigan (Ret.)Hon. Joseph R. Waldeck (Ret.)

Brian J. Wanca

September 2018 7

85% of the brain’s devel-opment occurs before the age of 5, Words on Wheels was created in 2010 by a group of Lake County area volunteers. Their mission is to use proven childhood lit-eracy tools to increase the early literacy skills of at-risk children. Through their efforts, Words on Wheels thus seeks to positively impact the lives and futures of our community’s at-risk children through the power of words. They literally change lives, one child, and one community at a time.

The Foundation is pleased to provide financial support for these outstand-ing endeavors.

The Foundation also wholeheartedly supports the Nineteenth Judicial Circuit’s Veterans History

Project. This past Novem-ber, thirty-five veterans came to the Lake County courthouse to share their oral histories, which were transcribed by court report-ers and will be archived at the Library of Congress in Washington, D.C. At our July meeting, the Founda-tion Board voted to again provide grant funding sup-port for the 2019 event. The Foundation is honored to participate in the program, and to have the opportu-nity to express our deepest gratitude to the men and women of our Armed Forces who have sacrificed so much, and who have courageously secured our country’s freedoms and ad-vanced its interests around the world.

And lastly, as the first

of likely many reminders (from me) – please be sure to SAVE THE DATE – NOVEMBER 16, 2018 – and plan to attend the Founda-tion’s biennial gala, “Reb-els With A Cause.” Every other year, the Foundation hosts its major fundraising event. You may recall the fabulous past fundrais-ers held at Exmoor Club, the Genesee Theater, the Cuneo Mansion and Lake Forest Sportscars. This year we will be hosting a casino night at Lake Shore Harley-Davidson in Lib-ertyville. This promises to be a truly fun and enter-taining evening, for a great cause. Consistent with the Foundation’s focus for 2018, youth at risk, the primary (but not exclusive) bene-ficiary of this year’s effort

will be Waukegan to Col-lege which, itself, will soon celebrate its 10th anniver-sary (more on that later). Would you like to sponsor a gaming table or help underwrite some aspect of the evening? Please con-sider playing a part to help ensure a successful benefit for the Foundation and its designated beneficiaries. If you haven’t already been contacted, hopefully you will soon receive a direct re-quest for sponsorships and prize donations (or feel free to reach out to us). And, of course, plan to join us on November 16 and put your gaming skills to good use for an outstanding charita-ble cause. Sidle up to one of the gaming tables and declare yourself a “Rebel With A Cause!”

Your New Office Could be in the LCBA Building

• Furnished• Approximately 2,000 square feet• Two blocks from the courthouse• Two private offices• Conference room• Large reception area• Men’s and women’s bathrooms• Small kitchen• Free parking for staff and clients

Available NowContact Virginia Elliott

(virginia@lakebar.org or 847-244-3143)to view the property and get more details.

Register for these events online at: www.lakebar.org

Calendar ofEvents

The88

September 13-14 Criminal Law Seminar

Milwaukee, WI

September 25 Membership Luncheon

Waukegan City Hall

October 4-5 Child Representative Training

College of Lake County

October 10 Comedian at Law

Greenbelt Cultural Center

October 23 Pro Bono Awards Luncheon

Waukegan City Hall

October 25 Membership Reception

LCBA

November 9 Trusts & Estates Seminar

Knollwood Club

November 13 ARDC Update

Waukegan City Hall

November 16 Rebels With A Cause

Casino Night North Shore Harley Davidson

December 7 Holiday Party

LCBA

The Docket8

The scene played out like this: Dr. Expert is testifying for the plaintiff in a medical negligence case.1 In laying the foundation to elicit an opinion that the defendant doctor deviated from the standard of care, plaintiff’s counsel asks Dr. Expert what she relied upon in formulating her opinion. In addition to the doctor’s training and experi-ence, the medical records and depositions, the doctor then refers to a medical treatise upon which she relied. After laying the proper foundation that the work or its author is authoritative in the field to which the treatise refers,2

1 Known in the vernacular as a county courtroom.2 Historically, the foundational requirement for a learned treatise

required the proponent to establish that the work itself was authoritative. The First District has expanded that and now also allows the foundation to be met through testimony that the author is authoritative on the subject about which the work is written. Stapleton ex rel. Clark v. Moore, 403 Ill. App. 3d 147, 160 (1st Dist. 2010). Moore holds that a learned text is admissible for impeachment on cross-examination in any of the following three circumstances: (1) the trial court takes judicial notice of the author’s competence, (2) the witness concedes the author’s competence, or (3) the cross-examiner proves the author’s

the attorney then seeks to relate to the jury via his witness exactly what the treatise says about the matter at issue.

“Can you tell the ladies and gentlemen of the jury,

competence by a witness with expertise in the subject matter. Id. at 160. Accord Fragogiannis v. Sisters of St. Francis Health Servs., Inc., 2015 IL App (1st) 141788, ¶ 27.

It might be worth reminding the practitioner that testimony as to the authoritativeness of a work or its author is considered an expert opinion that must be disclosed pursuant to Supreme Court Rule 213. See Iser v. Copley Mem’l Hosp., 288 Ill.App.3d 408, 410-11 (3d Dist. 1997) (plaintiff who sought to elicit opinion from his own expert as to the authoritativeness of an article as a foundation for crossing

the defense expert with portions of the article barred because the opinion was not disclosed.) This would not have been an issue in Iser if the plaintiff could have elicited from the defense expert that the article was authoritative, as Rule 213 disclosure requirements do not apply to cross examination. See Stapleton, 403 Ill. App. 3d at 156 (“The disclosure requirements of Rule 213 simply do not apply to cross-examination of an opposing party’s opinion witness,” including cross examination through the use of journal articles), citing Skubak v. Lutheran General Health Care Systems, 339 Ill.App.3d 30, 32 (1st Dist. 2003); Maffett v. Bliss, 329 Ill.App.3d 562, 577 (4th Dist. 2002).

The Case of…the Learned Treatise Conundrum

BY THE HONORABLE THOMAS M. SCHIPPERS

Circuit Judge Thomas Schippers is the Presiding Judge of the Civil Division of the 19th Judicial Circuit. He currently presides over a Law Division call.

It was, to be sure, one of the great epic evidentiary battles waged within one of this Republic’s hallowed halls of justice.1 The matter at issue was whether an expert could testify about information contained within a learned treatise on direct examination.

September 2018 9

what it is specifically in that article that you relied upon in formulating your opinion?” queries the tanned and self-admittedly handsome plaintiff’s attorney as he straightens the lapels of his custom-tailored cashmere/wool blend suit while scanning the jury to see who among the seven women selected might be caught casting an admiring gaze upon him.

“Objection,” chimes the sometimes timid but always learned defense attorney, pushing up his black rims with his index finger in emphatic persuasiveness. “Inadmissible hearsay.”

“Well, by golly,” mus-es the judge to himself, his mind deliberately if not with alacrity divert-ing from weighing din-ner options to weighing weighty legal questions and even weightier legal rulings. “That bespec-tacled young feller has himself a point.”3

“And another point of note, Your Eminence,”4 expostulates the admir-ing advocate. “Such information can never be elicited on direct examination, but rather is only allowed on cross-examination. We had a motion in limine on this.”

His Eminence’s ruminator becomes temporarily jammed. The clerk takes a second glance at him, think-ing maybe, just maybe, she detected a tiny puff of smoke emanate from his right ear. Despite the jam, providence bestowed upon this barrister of yesteryear just enough synapses connected to working neurotransmitters to allow him to pull from the depths of his memory the old proverb oft-quoted by his dear old professor of theology, an aged Jesuit priest: “He who knows not, and knows not he knows not, he is a fool. Shun him!”

His Eminence hesitates, and realizes he doesn’t know the answer to the evidentiary conundrum. He holds his tongue. “Phew, I’m not a fool,” he reassures himself. Then, with some strenuous mental prodding, he somehow draws up from the well of his memory the next proverb oft-quoted by the highly revered man of the cloth, a quote that heretofore had remained dor-mant for decades within the white matter of his prom-inent cranium:5 “He who knows not, and knows he

3 This is a fictional judge, and any resemblance to any sitting judge is merely coincidental.

4 Hereafter the judge will be referred to as “Your Eminence” or “His Eminence,” but only because it was the defense attorney who gave him that elegant moniker, not because I – a judge myself – really enjoy being called “Your Eminence.”

5 It is open for debate whether this information could have been more easily retrieved had it been stored in the gray matter of the brain instead.

knows not, he is wise, follow him.” Saved again! “I am wise indeed,” he thought. “I know I know not.”

Recess,” exhales His Eminence. As he lumbers off the bench, he glances over his shoulder to see who might be following. 6

What does His Eminence find? A clear answer? A solid black letter of the law upon which he may hang his evidentiary hat? Ha! - no such luck for This Eminence. And it seemed like such an easy issue when he first began

his research. Picking up the Illinois Rules of Evi-dence, he confirms that Illinois never has and currently does not recog-nize the learned treatise exception to the hearsay rule.7 It logically follows, then, that the informa-tion contained in that treatise cannot be offered as substantive evidence. Simple enough, right?

“But wait a minute!” he screams, as that ample well of legal knowledge comes bubbling profusely

to the forefront of his medial temporal lobe. What about Wilson v. Clark,8 the seminal Illinois Supreme Court case that explicitly adopted Federal Rule of Evidence 703? By so doing, Wilson declared forever hence that within the boundaries of this Great State of Illinois -- from Waukeg-an’s stunning skyline, to the green and murky catfish holes of Cairo -- an expert may rely upon what is otherwise inad-missible evidence ‘[i]f of the type reasonably relied upon by experts in the particular field in forming opinions….’9 That means that there should be no problem with the expert talking about that ‘otherwise inadmissible’ evidence on direct as a basis for reaching her opinion as long as this foundational requirement is met, right?”

He then asked himself a question: “What if that well-groomed and obviously handsome plaintiff’s attorney had asked: ‘Are medical journals and treatises the type of infor-mation reasonably relied upon by experts in your field of expertise in formulating opinions?’ And what if the expert said, ‘Yes?’” Being ever cautious of the dreaded reversal on

6 Incorporating a writing style similar to that used by the author in recounting this courtroom drama is not recommended in drafting briefs, as the judge reading the brief will have no idea what the heck you are talking about.

7 See commentary to Il. R. Evid.18 Reserved [Learned Treatise], noting that unlike the Federal Rules of Evidence, Illinois courts have historically refused to recognize learned treatises as an exception to hearsay. The Illinois Supreme Court, in codifying the Illinois Rules of Evidence, elected to continue to follow that precedent.

8 84 Ill.2d 186 (1981).9 Il. R. Evid. 703.

Does this mean that Illinois courts treat medical literature

differently than other “inadmissible evidence” relied upon by experts? So it seems.

The Docket10

appeal, His Eminence continued to play out the scenario while tapping the Scales of Justice that sat prominently on his desk. “And what if, prior to allowing this testimony, I instructed the jury as follows: ‘Ladies and gentlemen, the following testimony is to be considered by you only as it relates to the basis of the expert’s opinion, and for no other purpose?’10 Wouldn’t the learned treatise then be used in the exact same way as, say, a discovery deposition might be used by an expert? That is, although it is clearly hearsay, it is nevertheless admissible because it is not being offered for the truth of the matter asserted but rather as a basis of the expert’s opinion.”

A quick perusal of cases cited by that smart little de-fense attorney revealed that the answer was not so readily discerned. His Eminence uncovered the following:

The general phrase commonly used in Illinois ap-pellate cases is that “medical literature cannot be used as substantive evidence, but can be used for purposes of impeachment.”11 The statement does not say that such lit-erature can never be used on direct, although one might

10 Ill. Pattern Jury Instr.-Civ. 2.02 entitled Evidence Admitted for a Limited Purpose, reads as follows: “The [following] [preceding] evidence concerning (describe evidence) is to be considered by you [solely as it relates to (limited subject matter)] [only as to (name the party or parties)]. It should not be considered [for any other purpose] [as to any other party].

Ill. Pattern Jury Instr.-Civ. 2.02.11 Fragogiannis v. Sisters of St. Francis Health Servs., Inc., 2015

IL App (1st) 141788, ¶ 27.

infer such a conclusion by the statement that it can only be used on cross.12 The two cases cited by the defense in support of their motion in limine seem to support this inference. Mielke v. Condell Memorial Hospital.13 and Schuchman v. Stackable14 stand for the general propo-sition that experts cannot discuss learned treatises or literature on direct. These holdings were summarized by First District Appellate Court Justice Lavin (albeit in a dissenting opinion):

On direct examination, an expert is not per-mitted to refer to the findings of any literature or treatises, even if he would testify that his opinions are based, in part, on the literature in question. This rule is based upon the theory that it would be unfair to allow this sort of testimony where the au-thor of the article is not subject to cross-examina-tion. . . Though given an opportunity, our supreme court has declined to specifically approve the use of medical literature on direct examination.15

Does this mean that Illinois courts treat medical literature differently than other “inadmissible evidence” relied upon by experts? So it seems. As noted by Justice Lavin, one of the primary concerns with allowing such evidence on direct is the inability to cross the author. But isn’t this usually the case with “otherwise inadmissible evidence” in other contexts? As His Eminence ruminat-ed above, doesn’t an expert’s reliance upon a discovery deposition taken of a person who is not testifying at trial create the exact same concern? Yet certainly the expert would be allowed to refer to the contents of the deposi-tion on direct if such a deposition was material and relied upon by the expert in formulating her opinion.16

Even in the criminal context, where often there are Confrontation Clause concerns,17 courts have held that “experts may not only consider the reports common-ly relied upon by experts in their particular field, but they may also testify to the contents of the underlying

12 The maxim expressio unius est exclusio alterius is an aid of statutory construction that means “the expression of one thing is the exclusion of another. This maxim is based in logic and common sense and dictates that where a statute or regulation lists the things to which it refers, it may be inferred that all omissions therefrom should be understood as exclusions.” Metzger v. DaRosa, 209 Ill.2d 30, 44 (2004).

13 124 Ill. App. 3d 42 (2nd Dist. 1984) (citations omitted). 14 198 Ill. App. 3d 209, 228 (5th Dist. 1990).15 Stapleton ex rel. Clark v. Moore, 403 Ill. App. 3d 147, 167 (1st

Dist. 2010).16 See Hatfield v. Sandoz-Wander, Inc., 124 Ill. App. 3d 780, 787

(1st Dist. 1984) (expert could rely upon deposition testimony in formulating opinion).

17 The Confrontation Clause concerns, of course, arise when it is the state’s expert who is testifying about “otherwise inadmissible” evidence on direct examination, as in People v. Williams, 238 Ill. 2d 125, 143-44 (2010), aff’d sub nom. Williams v. Illinois, 567 U.S. 50 (2012), where the court found no Confrontation Clause violation where the state’s expert relied upon another lab’s DNA analysis in concluding that the DNA retrieved from the scene was the defendant’s.

September 2018 11

records.”18 Way back in 1986, the Illinois Supreme Court was quite clear on this. In People v. Anderson.19 the trial judge refused to allow any disclosure of the con-tents of various psychiatric and medical reports of the defendant, reports upon which the defendant’s expert relied. “[I]n our judgment,” the court held, “the log-ic underlying Rule 703 and this court’s decisions in … Wilson [v. Clark] compels the conclusion that an expert should be allowed to reveal the contents of materials upon which he reasonably relies in order to explain the basis of his opinion.”20 The reasoning for this is obvi-ous: “Absent a full explanation of the expert’s reasons, including underlying facts and opinions, the jury has no way of evaluating the expert testimony [citation] and is therefore faced with a ‘meaningless conclusion.’””21 The opposing attorney is not entirely deprived of his ability to cross, the courts reason, because the attorney is given

18 People v. Williams, 238 Ill. 2d at 143-44; see also People v. Burhans, 2016 IL App (3d) 140462, ¶ 31 (experts may premise their testimony on information and opinions obtained from the reading of standard publications on which their opinions are based).

19 113 Ill. 2d 1 (1986).20 Id. at 9. 21 Id at 11. See also People v. Lovejoy, 235 Ill.2d 97, 143 (2009),

quoting People v. Pasch, 152 Ill.2d 133, 176 (1992) (“By allowing an expert to reveal the information (as a basis for the expert’s opinion), it will undoubtedly aid the jury in assessing the value of his opinion”).

free rein to fully cross examine the testifying expert’s reliance upon the hearsay report.22

If this inability to cross the author of a report relied upon by an expert is not automatically determinative in the criminal context, why is it so vital in a civil case when treatises or articles are involved? Maybe there is some-thing else going on here. A closer look at the cases may reveal, if not an answer, maybe an explanation.

Both Mielke 23and Schuchman24 specifically noted that medical literature is different than most other “otherwise inadmissible evidence” because it is by its very nature generic. That is, medical literature does not speak specifi-cally to a party’s particular medical condition.25 In Mielke,

22 See Wilson v. Clark, 84 Ill.2d at 194 ( “[T]he burden is placed upon the adverse party during cross-examination to elicit the facts underlying the expert opinion”); Thome v. Palmer, 141 Ill. App. 3d 92, 95 (3rd Dist. 1986)(noting one of the “safeguards of fairness envisioned” in Wilson v. Clark was founded upon the court affording the opposing party “ample opportunity to test the basis of the expert’s opinion through cross-examination”).

23 124 Ill. App. 3d 42 (2d Dist. 1984). 24 198 Ill. App. 3d 209, 228 (5th Dist. 1990).25 In an unpublished opinion, Cackley v. Paulsen, 2012 IL App

(3d) 110033-UB, ¶ 41, the court said this about its concern with the use of medical treatises by experts as compared to using a patient’s own medical records: “Medical treatises, on the other hand, do not contain the same elements of reliability. They do not simply contain facts and data regarding a patient; they contain medical opinions and general recommendations based on a particular field of expertise. The primary concern in a trial setting lies in the likelihood that those opinions will be

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the late Donald Morrison the Elder26 attempted to have his expert read to the jury summaries of medical literature the expert relied upon in formulating his opinion. The defense objected on hearsay grounds, which was sustained by our very own late Judge Jack Hoogasian. In affirming Judge Hoogy,27 the appellate court distinguished Wilson v. Clark by noting that the “testimony which was excluded by the trial court here did not directly concern plaintiff’s treatment….”28 This distinction was picked up again sever-al years later in Schuchman, where the trial court refused to allow the plaintiff’s expert witness to “discuss” and read

misunderstood or misapplied by the lay jury,” citing Rethinking the Admissibility of Medical Treatises as Evidence, 17 Am. J.L. and Med. 209 (1991).

26 Not to be confused with Donald Morrison the Younger, who is a fancy-dancy lawyer currently practicing in Lake County and is the son of The Elder.

27 Yes, I know. OF COURSE, they affirmed Judge Hoogy.28 Mielke, 124 Ill. App 3d at 56.

portions of textbooks that supported his opinions, find-ing it “pure, pure unadulterated hearsay.”29 Citing Mielke, the appellate court in Schuchman affirmed, stating that an expert on direct can neither summarize nor read from a treatise or an article.30 The main concern expressed in Schuchman, other than the inability to cross the author, was that the textbooks did not directly concern the plain-tiff’s treatment.31 This distinction has also been picked up by other courts.32

Another factor considered by reviewing courts in not allowing such information to be elicited on direct is the manner in which the evidence is offered. This concern is primarily twofold. First, appellate courts that have been critical of using such information on direct have found that the proponent of the evidence essentially was “attempting to introduce the facts in the articles as sub-stantive evidence on direct examination….”33 Examples of treating the evidence substantively include blowing up a portion of the text for the jury, or actually admitting the articles into evidence and sending them back to the ju-ry.34 To compound the error, such evidence was admitted absent any limiting instruction whatsoever.

Without a limiting instruction, juries would have no reason not to consider such evidence substantively. When this happens, “[t]he expert witness then becomes a conduit for bringing before the jury a number of opinions of other experts without incurring the costs of hiring such experts and without subjecting these other experts to cross examination.”35 Even with a limiting instruction, courts are wary when it appears that a litigant is attempt-ing to get other non-testifying expert opinions before the trier of fact simply by having his expert say he relied upon those opinions. The testifying expert must be more than a “mere conduit for the opinion of someone else.”36

Second, courts have identified a subtle but important difference between treatises or literature that are relied upon by the expert in formulating an opinion, and treatis-es or literature that simply support an opinion.37 In other words, there is a very important difference between an expert who says he relied upon a treatise in reaching his de-cision, and an expert who says that the treatise supports his

29 Schuchmann, 198 Ill. App. 3d at 228.30 Id at 230.31 Id.32 See Lewis v. Stoval, 272 Ill. App.3d 467, 470 (3d Dist. 1995)

(distinguishing cases where experts rely on reports directly relating to the defendant, and generic articles concerning certain results derived from studies).

33 Mielke, 124 Ill. App. 3d at 54.34 Lewis, 272 Ill. App. 3d at 469. 35 Kochan v. Owens-Corning Fiberglass Corp. 242 Ill. App. 3d

781 (5th Dist. 1993). This case has been overruled by Nolan v. Weil-McLain, 233 Ill.2d 416 (2009). However, this article cites Kochan for a different proposition, which was not overturned.

36 11 Ill. Prac., Courtroom Handbook On Ill. Evid. § 703:1, citing Kim v. Nazarian, 216 Ill. App. 3d 818, 827 (2d Dist. 1991).

37 Sterna v. CSX Transp., Inc., 2012 IL App (1st) 112735-U, ¶ 50 (testimony that materials supported expert’s opinion improperly allowed).

September 2018 13

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opinion. The former is proper, whereas the latter is not. This distinction is illustrated in Kochan v. Owens-Corn-

ing Fiberglass Corp.,38 where plaintiff’s expert testified that, in his opinion, the link between asbestos and asbestosis was generally known in the industry during the time in which the plaintiff was exposed to the product. As a basis of that opinion, the trial court allowed the expert to read into evidence on direct examination underlying data and information from a trade journal linking the product with the disease. In affirming the trial court, the Fifth District distinguished Schuchman by noting that Schuchman is “limited to those situations where the expert is not using the content of the medical literature as a basis for his or her opinion but rather the expert is attempting to bolster his opinion by showing that other experts agree with him.”39 The court noted that the authoritative information used in both Schuchman and Mielke was not necessary information relied upon by the experts in reaching or explaining their opinion. Conversely, in Kochan, the expert specifically relied upon the literature as a basis of his opinion that such a link between the product and the disease was generally known in the industry during the relevant time period.40

There is some authority that seems to suggest that it is permissible for an expert to say he relied upon certain liter-

38 Kochan, 242 Ill. App. 3d 781. 39 Id. at 804.40 Id.

ature, but that he is prohibited from explicitly stating the contents of what he relied upon. In Lawson v. G. D. Searle & Co41 the defendant’s doctor relied upon detailed clinical studies published in medical literature relative to the inci-dence of thromboembolic disease in patients receiving oral contraceptives and in patients not receiving oral contra-ceptives. The plaintiff objected to the doctor’s reference to the studies and reports. In finding no error, the court not-ed that the doctor “did not mention the reports by name, nor did he recite the empirical data drawn from the reports or the conclusions of the researchers,” a distinction noted by Mielke.42 The court also said: “These studies are clearly a part of the scientific or professional literature which the witness could properly consider in forming his opinion.”43

“But what benefit is there,” His Eminence ponders, “to allow an expert to simply refer generically to articles or studies without allowing the jury to hear what facts or data in the article the expert relied upon? If the jury cannot hear the basis of the opinion and at least some information as to what is contained in the studies that helped form that opinion, to quote People v. Anderson, it

41 64 Ill. 2d 543 (1976)42 Mielke, 124 Ill. App. 3d at 53 (distinguishing Lawson, where the

expert simply referenced studies, with Don Morrison the Elder’s expert who attempted “to recite the data and conclusions of those articles”).

43 Lawson, 64 Ill. 2d at 556-558.

September 2018 15

has ‘no way of evaluating the expert testimony.’” His Eminence also learns that Mielke and Schuchman

are not without their naysayers. Schuchman, for exam-ple, contained a strongly worded dissent that took issue not only with the majority but also with Mielke, saying that Wilson v. Clark and its progeny, in addition to Cleary and Graham’s Handbook of Illinois Evidence, all support the conclusion that an expert witness can give a complete history and summary of all the scientific literature on a particular subject as long as he states that such litera-ture is the basis of his opinion.44 Graham’s Handbook of Illinois Evidence, in discussing “otherwise inadmissible evidence” under the rubric of Il. R. Evid. 703, encourages the reader to review the “excellent” dissenting opinion in Schuchman, that “correctly maintained” the witness should be able to “read to the jury from articles reason-ably relied upon.”45 The handbook further concluded that that the “majority opinion [in Schuchman] declaring such practice improper is clearly incorrect.”46

Maybe really what is going on in these cases is a clas-sic 403 balancing test.47 Maybe it is not black letter law that an expert can never refer to the substance contained in medical literature or treatises on direct. Maybe it really depends on the nature of the evidence and how it is presented to the jury,48 “Otherwise inadmissible evi-

44 Schuchmann, 198 Ill. App. 3d 232-33 (5th Dist 1990).45 Graham, Handbook of Illinois Evidence, §703.1, pp. 781

(2016 ed.)46 Id. See also 11 Ill. Prac., Courtroom Handbook On Ill. Evid. §

703:4 (“Statements in a treatise could, in theory, be admissible as the basis of an expert’s opinion even though not admissible to prove the truth of the matters they assert.”)

47 Ill. R. Evid. 403 states: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” See also Rios v. City of Chicago, 331 Ill. App. 3d 763, 772, 265 Ill. Dec. 71, 771 N.E.2d 1030, 1037 (1st Dist. 2002) (evidence of the basis of an opinion may be excluded if its probative value in explaining that opinion is substantially outweighed by the tendency of the evidence to confuse, mislead, or unfairly prejudice.

48 In Sharbono v. Hilborn, 2014 IL App (3d) 120597, the primary issue centered on whether anatomical images pulled from a medical treatise were used as demonstrative aids or as

dence” that does not specifically refer to a party has less probative value than information that directly pertains to the party’s medical condition. That would be pertinent in a 403 analysis. “Otherwise inadmissible evidence” that is presented substantively, as marked exhibits or through the use of long quotes from the texts, or worse, by actu-ally sending a copy of the article or text back to the jury, certainly would be unduly prejudicial to the opposing party and would support the argument that it was offered substantively and not as a basis of an opinion. The po-tential prejudice to the opposing party would be com-pounded if such information were presented to the jury without a limiting instruction. Furthermore, an expert who reaches an opinion and then simply cites a litany of other authorities in the field who agree with him would be cumulative and prejudicial under a Rule 403 analysis.

“Whew,” His Eminence sighs as he sops up the pools of sweat that had settled in the little hairless dimples of his ample dome, being reminded as he dabs that his well-oiled cogitator had always seemed to generate mega joules of heat while working at such a high capacity. His Eminence, in his heart of hearts, concludes that maybe experts should not automatically be precluded from tes-tifying about the content of literature on direct. Rather, maybe it should depend on a wide variety of factors, including how probative the evidence is to the expert’s opinion balanced against the danger of the jury putting too much emphasis on the information contained within the treatise, the manner in which the literature is pre-sented to the jury, the potential prejudice to the opposing party in not being able to cross the author, and whether a limiting instruction could effectively limit the evidence such that a jury would not consider it substantively.

“BUT,” he cautions himself, “this is not for me to decide. Evidence handbooks and dissents might be fascinating, but they are thin support indeed in courts of review. Mielke is still the law in this part of town!”

Glancing at his watch, he realizes that the time spent researching the issue, like his time since first being sworn in as a judge nearly one score and seven years ago, has quickly slipped by. His Eminence lumbers back to his regal position on the bench, settles in comfortably, and declares: “Absent any authority or argument from the Plaintiff as to how the information sought to be elicited in the instant case is somehow different or distinguish-able from the information sought to be elicited in Mielke and Schuchman, the objection will be sustained.”

substantive evidence. That is obviously off point here. But the court in dicta did talk about the proper method of using information from a treatise. “The use of an exhibit with an ultrasound image from a treatise to show the basis for an expert’s opinion is permissible under Wilson v. Clark and Illinois Rule of Evidence 703,” the court wrote, “if a proper foundation has been established and if there has been proper disclosure.” Id. at ¶ 35

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September 2018 17

The Docket18

12 The Act supplements other laws that directly or indi-rectly govern online accounts, such as the Computer Fraud and Abuse Act3, which prohibits the unauthorized access of computers and their contents, the Stored Communi-cations Act4, which makes it a crime to access electronic communications without authorization, and the Illinois Computer Crime Prevention Law5, which makes it a crime to access computer records without authorization.

HAVE YOU BEEN INCLUDING DETAILED INFORMATION RELATED TO DIGITAL ASSETS IN YOUR CLIENTS’ ESTATE PLAN DOCUMENTS?

In this age of information, estate planning attorneys should address

1 Illinois Public Act 99-07752 Illinois Public Act 99-0775, Section 4(b)3 18 U.S. Code § 10304 18 U.S. Code §§ 2701-27125 720 ILCS 5/17-51

a client’s digital footprint by incorporating the client’s wishes related to digital assets in the various estate plan documents. Those documents will include:

• A Financial Power of Attorney. This document grants either immediate authority or springing authority to an-other person to make financial decisions for an individual while the individual is still living.6 The client may wish to either grant broad authority for the fiduciary to access digital assets, or to specify which accounts may or may not

be accessed. This is acutely important for individuals who have significant digital assets, some of which may need to be liquidated by the fiduciary to pay for the client’s expenses.

• A Will. As it is generally under-stood, a Will names a fiduciary (Exec-utor) to collect assets, pay debts, and distribute assets upon a person’s death. If the decedent held significant digital

6 755 ILCS 45/1-1 et seq.

Incorporating RUFADAA into Estate Planning Documents

BY MICHAEL A. GOLDBERG

The Revised Uniform Fiduciary Access to Digital Assets Act1 (“RUFADAA” or “the Act”) has now been in effect in Illinois for two years. The Act permits individuals to expressly consent to disclosure by third parties of the individual’s

online accounts and grants individuals the right to delegate authority to others to access those online accounts and digital records.2

Michael A. Goldberg is an associate at Matlin Law Group, P.C., where he focuses his practice on estate planning and trusts and estate administration.

September 2018 19

assets, the Will should specify how those digital assets should be distributed and how online accounts should be terminated, if at all. RUFADAA permits individuals to grant authority to their Executor to access the digital accounts, but a practitioner will need to include that language in the Will. The Will can specify access to digital assets, distribution of digital assets, and the termination of online accounts such as social media accounts.

• A Trust. A Trust is a legal persona that can hold as-sets and distribute assets pursuant to its terms, even after the death of the testator. If a client assigns all digital assets to the client’s Trust, then a practitioner should include the same language from the Will that grants the authority, or circum-scribes the authority, to access and distribute the digital assets. From a prac-tical perspective, if a client has a pour-over Will and a Trust, then both doc-uments should contain the requisite language to access and distribute digital assets.

Of course, there are other considerations. Is the client aware that broad access to digital assets would give the fiduciary authority to access their email records? Many clients will be uncomfortable granting this authority to anyone, since email records often contain very personal correspondence that was never intended to be accessed by anyone but the sender and recipient. The client should also consider whether the person being named as a fiduciary is

technologically savvy. It may be difficult or impossible for individuals with very little experience using computers to access the digital assets at all. Lastly, the estate planning documents are not the be all and end all of authoriza-tion to access digital assets. If an online service provider provides an “online tool” where the individual can spec-ify whether a designated recipient can access the digital assets, and the individual specifies that no one should be permitted to access the digital assets, this online tool election takes precedence over the estate planning docu-

ments.7It is important to

include language related to digital assets in estate planning documents so that the named fiducia-ries will not run afoul of the aforementioned statutes. If, for instance, no authority to access the digital assets is granted in the estate planning documents, it may be claimed that the fiduciary has exceeded his or her

authority, and thus violated the Federal and State laws pro-hibiting the unauthorized access of digital assets. This may directly contradict the client’s intent and can be perceived as a severe oversight by the practitioner, and, perhaps more importantly, the acting fiduciary can end up in hot water having committed a criminal act.

7 Illinois Public Act 99-0775, Section 4(a)

Is the client aware that broad access to digital assets would give the fiduciary authority to

access their email records?

WAUKEGAN CITY HALL12:00 – 1:30 pm

September 25 Lake County Update

October 23Pro Bono Awards Luncheon

November 13ARDC Update with James Grogan

Fall Luncheons

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Member Reception October 25, 20184:30 - 6:30 p.m.

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Member Reception Sponsorship OpportunitiesThe LCBA Member Receptions will be held on the 4th Thursday of every month.

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The Docket22

Although Judge Salvi and his family currently live in Hawthorn Woods, he was born and raised in neighboring Lake Zurich, where his late father, attorney Albert Salvi moved in 1952. Albert practiced law in Lake Zurich for many years, after graduating from Notre Dame undergrad-uate and Northwestern Law School. Law seems to run in the Salvi blood; Joe is the eighth of nine children, five of whom are attorneys, and all of whom practice in Lake County. Judge Salvi himself attended Knox College and graduated from Chicago-Kent School of Law in 1991, and like his siblings, practiced law in Lake County for over 20 years before taking the bench.

Salvi became a partner at Salvi, Salvi & Wifler, P.C., which is a general practice law firm. He handled a wide variety of cases including civil, crimi-nal, real estate, and family law matters, and he also spent many years serving as a guardian ad litem for disabled individuals. Now, as judge, Salvi’s most recent assignment has been in the Fam-

ily Division, and he notes that his experience practicing family law has assisted him in addressing the many issues that arise in that area. He understands from personal ex-perience the challenges that accompany being an attorney, particularly in family law cases.

After decades in private practice, Salvi sought a new challenge and became an associate judge in 2013. He has

always been interested in taking on new challenges, and Salvi viewed a judgeship as a next reasonable career advance. When asked what he likes about judging versus lawyering, he noted that he enjoys being able to occupy a courtroom for set blocks of time, which allows him to focus on and refine his knowledge of specific areas of law. He said that that such a dedicated focus was a luxury he rarely enjoyed in the bustle of private practice.

In January of this year, the Illinois Supreme Court appointed Salvi to be a Circuit Judge for Lake County’s Fifth

Judge Salvi: Rooted in Lake CountyBY DELANEY HUNT

Delaney just graduated from The John Marshall Law School and begin her bar prep course. She was an intern at the State’s Attorney’s Office from June 2017 to May 2018 and worked mainly in traffic/misdemeanor and domestic violence. She hopes to work at the State’s Attorney’s Office after she passes the bar.

Judge Joseph Salvi is a lifelong resident of Lake County, and, specifically, the Lake Zu-rich area. In view of some of his recent experiences, his and his family’s connection to community is clearly something he values greatly.

September 2018 23

Subcircuit. The Fifth Subcircuit runs along Lake County’s western border from Lake Cook Road up to around Fox Lake. Due to this appointment, he must now win election in November 2018, which means he is involved in cam-paigning to maintain the seat. He spent the last portion of 2017 out in the community networking with people to get his name on the ballot for Circuit Judge, and, although such activity might seem to be a burden—without ques-tion, it is—Salvi does not portray it as such. He is running unopposed.

Rather than lableling it a burden, because of an extremely supportive wife and his family’s deep roots in Lake Zurich, Salvi talked about his recent ex-perience campaigning in broadly positive terms. He relates in particular about interacting with the many people in his community who recognize the Salvi name due to his family’s deep roots in the area of the Fifth Subcircuit. He says that most people have reacted favorably to his knock on the door, which is to say that most people were kind about the brief disruption. Oc-casionally, a person would relate his or her dissatisfaction with being bothered, but usually, the signature-gathering process reminded Salvi of the importance of community.

He stresses, too, that there is something special about the legal community in Lake County, which has a collegial feel to it. He said that the enjoyment he had growing up in Lake Zurich continued into his working life, where he equally enjoyed dealing with practitioners in many other Lake County communities.

I asked Salvi for advice he has for young attorneys (his son is currently a law student). He talked about how as an attorney, you have the opportunity to do a lot of good work, and it is work that people may not even expect or

recognize. His advice for law students and young attorneys is not to be complacent. He says, “Don’t take on something just because it is easy, simple, or available.” The legal field may be chal-lenging or difficult, he said, but that shouldn’t deter you from trying new things and taking risks.

As a lifelong resident of Lake County, Salvi is again eager to take on a new challenge by becom-

ing an elected Circuit Judge. Even though a Circuit Judge serves all citizens of a county, it is fitting that a person like Salvi, who has such deep roots in the community, ultimate-ly hails from the specific part of Lake County where those roots lie.

His experience practicing family law has assisted him in

addressing the many issues that arise in that area.

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The Docket24

Simba is a 2-year-old Labrador Retriever who report-ed to work with the Public Defender on Monday, August 13, 2018. While Simba is the third dog trained and do-nated to Lake County by St. Louis based Duo (formerly Support Dogs, Inc.) he is the very first facility dog ever to be placed in an American Public Defender’s Office.

Lake County has been a leader in indigent defense since first appointing a Public Defender in 1956 (seven years before Gideon v. Wainwright). Since that time, the Lake County Public Defender’s Office has been dedicated to the zealous defense of the indigent crim-inally accused. Simba himself is uniquely qualified to support the Public Defender mission. Through a spe-cial arrangement between Duo and the Illinois Depart-ment of Corrections, Simba was raised and received most of his basic training at the Southwestern Illinois Correctional Center. SWICC is a minimum-security facility with a work camp where, for over nine months Simba lived with and was trained by the inmates (who were themselves learning a marketable skill as they prepared for their own community reentry). After this, he returned to Duo for his intensive support dog train-ing. At Duo, Simba was trained, tested and accredited

by ADI and passed his Service Dog Certification Test.Assistant Public Defender & Guardian ad Litem

Kathy Gordon will serve as Simba’s primary handler and Public Defender Division Chief Keith Grant will be co-handler. Simba is specially trained to provide calm and empathetic emotional support to people (often children) undergoing difficult interviews, this makes him particularly suited to assist the PD’s GAL Division as we strive to give a voice to the abused and neglected children who are our clients. Until now, dogs like Simba have been placed with prosecutors, victim advocates, police departments and GAL offices separate from a Public Defender. Simba’s placement with the Lake County Public Defender’s Office is an acknowledgement that defendants and defense witnesses can also succumb to the pressure and emotional stresses of a criminal pro-ceeding. His presence in the Public Defender’s Office can help to lessen that pressure and hopefully allow our clients to think calmly about their cases and make ratio-nal and well-reasoned decisions regarding their defense.

Like Mitch and Hitch who work for State’s Attorney Mike Nerheim, Simba will be a calming presence for people who find themselves in stressful and challenging

Facility Dog Simba: A First for Lake County & a First for the Nation

BY LAKE COUNTY PUBLIC DEFENDER JOY GOSSMAN

The Office of the Lake County Public Defender is proud to introduce the newest member of the Public Defender Team – Assistance Dogs, International (ADI) Certified Courthouse Facility Dog “Simba”.

September 2018 25

The Collaborative Law Institute of Illinois presents

Basic interdisciplinary collaBorative practice training

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The faculty includes: Anna Bush, JD; Bill Keffer, CDFA; Jeff Kostis, CDFA; Anne Chestney Mudd, JD; Gail Petrich, JD, PsyD; Kathryn Somers, JD; Jason Sposeep, JD; Sasha Von Varga, LCSW; Beth Wilner, PhD; Margaret Zuleger, JD

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circumstances. Best of all, Simba will never judge our clients, and it is our hope that his quiet acceptance and support will enable them to find a positive path within the justice system. His presence in a Public Defender’s Office and his support to our clients will, we hope, give greater meaning to the phrase “justice for all.” GAL Kathy Gordon noted that “there’s a spe-cial bond that a dog can form with a child that can make the process of being involved in the court system a little easi-er.” Co-handler Division Chief Keith Grant hopes that “the uncondition-ally accepting presence of Simba can help us to deliver on the promise of restorative justice and fairness for all of our clients.”

When you see Simba (or Mitch or Hitch) in the courthouse or office and he’s in his blue vest, he’s working, doing what he has been trained to do. When-ever you encounter a working dog, it’s always best if you ask the handler if it’s alright before you approach

the dog. But Simba is a dog, and like any dog, he enjoys hanging around with people and, when the vest comes off, chasing a ball or chewing his bone. Kathy has observed that “at home, he’s a regular Lab who

likes to go for walks, play ball and eat!”

Simba was generous-ly donated to the Lake County Public Defend-er’s Office by Duo, Inc., his food and treats are being provided by Solid Gold Pet Food and his veterinary care will be provided by Dr. Derek Williamson at the Com-panion Animal Hospital in Vernon Hills. Simba’s other needs will be met through generous pri-vate donations like those

from Tamarak Country School and Day Camp. Sim-ba begins his career in his primary placement at the Depke Juvenile Justice Complex and will also work in our main Waukegan office. If you’d like to meet Simba and learn more about his role in the Public Defender Mission, please stop by!

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The Docket26

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September 2018 27

Child Representative Training

October 4 and 5, 20189:00 a.m. – 3:30 p.m. (Lunch Included)

Topics & SpeakersCase Law Update Michael Strauss, Karen Paige

Distinction Between GAL/Child Rep/ Attorney For Child Jessica Weiner

Dealing With Parents Who Have Mental Health Issues Judge Vorderstrasse, Stephen Rice, Dr. Sharyn Johnson

Identifying ChildAbuse/How To Respond To Suspected Child Abuse Amanda Latimer

Social Media And Its Impact On Children Neil Takiff

Ethical Considerations For GALs/Child Reps Patricia Cornell and Sally Lichter

Childhood Development And Appropriate Parenting Time For Different Developmental Levels Dr. Robert Stiegel

Diversity; Keeping Cultural And Religious Differences In Mind During An Investigation Neta Nodelman, Shyama Parikh, Jenny Valsamas

Children’s Perspective On Family Law Litigation TBD

Interviewing Children Marjorie Sher, Janet Mazurek and Marc Fisher

Dos and Don’ts Of Writing GAL Reports Deborah Goldberg, Tom Gurewitz

When To Appoint GALs/Child Reps; Examples Of Good GAL Reports; Timing Of GAL Reports; Payment Of GAL/Child Rep Fees; Level Of Investigation Warranted In Different Types Of Cases; Discerning Parents’ Motives For Additional Parenting Time Family Law Judges Panel

Legislative Update On Changes To Child Related Statutes Rory Weiler

Register online at www.lakebar.org

10.0 CLE Hours including Professional Responsibility

$195 per personCollege of Lake County, A Wing, Lower Level Auditorium

Grayslake Campus

The Docket28

The Lake County Bar Association Board of Directors met

at noon on Thursday, July 19, 2018 at their office in Waukegan, Illinois. Pres-ent were B. Lewis, S. Rice, P. Cornell, S. Parikh, J. Howe, T. Newsome, Hon C. Bishop, K. Hatch, Executive Director D. Perrin, and As-sistant Director V. Elliott.

The meeting was called to order at 12:11 pm by Presi-dent B. Lewis. The meeting was started by welcoming our new Executive Director, Dale Perrin. A motion was made to approve the Con-sent agenda, was seconded, and the motion passed.

Lisa Malina was pres-ent from our accounting firm to provide an update on the work that has been done thus far, answer any questions that the Board may have, and request ad-ditional direction from the Board in moving forward. She provided draft financial statements for June and is working on resolving the July financial statements. Lisa and Dale will be working together to defer

deposits that have been made for next year’s dues so that they are applied to the next fiscal year. They will be working on coding and looking at “big bucket items” for large revenue numbers and where to allocate those funds. The decision has to be made on how much time, energy and expense to invest into look-ing into deposits and larger items for last years numbers versus looking at numbers moving forward.

A balance sheet was provided to the Board that reflected monies misappro-priated by the former Exec-utive Director and will be submitted to the insurance company and the Special Prosecutors. Tax returns are being prepared and the Board is working with the bank to provide them those financial documents. A motion was made to switch our accounting method to an accrual basis, was sec-onded, discussion ensued, and the motion passed.

Additionally, Lisa is in the process of helping us create and streamline finan-

cial reports so they are more useful. The Board will need to consider whether to have a detailed list on said re-ports or to have a summary. In addition, the Board’s ac-counting and monthly rec-onciliation will be handled externally by our account-ing firm. Finally, Lisa will share with our Treasurer an interactive budgeting tool that was created in Excel for our Association.

The Executive com-mittee will be preparing a Budget and presenting it to the Board so that it can be in place for the next fiscal year, beginning July 1, 2019.

Our by-laws are cur-rently silent on whether we use a cash or accrual base accounting procedure, how-ever the last two income tax returns used the accrual method. A motion was made to ratify the accrual accounting procedures, was seconded, discussion ensued, and motion passed. A motion was also made to adopt a resolution of the Board to include a records

retention policy, in addi-tion to the whistle blower policy and the conflict of interest policy that already exist, was seconded, discus-sion ensued, and motion passed.

We are working on sev-eral issues with the bank, one of which is a credit card for the Association. If a name is needed for the credit card, the Association will likely use the President, Treasurer and the Executive Director. All three of these individuals will get notice of activity. The process has been started, however decisions still need to be made so one Administrator cannot remove another and essentially have sole access.

Executive Director Perrin has reached out to the Waukegan Chamber of Commerce and the Lake County Chamber of Com-merce regarding renewal for the upcoming year. Dis-cussion occurred regarding our past involvement with the Chambers and what re-sources are available for us

Board of Directors’ MeetingJuly 19, 2018

MeetingMinutes

The

BY SHYAMA S. PARIKHSECRETARY

September 2018 29

moving forward in order to justify renewal. A motion was made to join the Lake County and Waukegan Chamber of Commerce, was seconded, discussion ensued, motion passed.

The Lifetime Mem-bership application for B.J. Carroll was reviewed. The application form may need to be revised to reflect the by-laws and will be further discussed at the next meet-ing. A motion was made to approve Bartlett J. Carroll for Lifetime Membership, seconded, discussion ensued, and the motion passed.

The Board considered having a Board Seat reserved for the Chair of the Young & New Lawyer committee or in the alternative having a Board Liaison to their com-mittee. President Lewis will reach out to the committee and specially invite them to a meeting in order to assess how to proceed.

The Board discussed the creation of a Member-ship Directory Book, similar to DuPage county. The goal in creating same would be to help raise money for the Association, since there is a general fear that we are too reliant on our dues. Board members K. Hatch and T. Devine will investigate and provide a report after dis-cussing with D. Perrin.

The Board also dis-cussed the policy regarding deadlines to register for major events. There have been problems with last minute sign ups and failure to pay as well as registration with a failure to pay. The staff is looking for guidance and Board support in order to act and respond to the members. Executive Direc-

tor Perrin has a proposed policy that will be further reviewed and will be on the next agenda.

The Board addressed the policy regarding lunch-es for committees. At this time, the LCBA provides lunch for the Docket, CLE Committee, and Judicial Se-lection and Retention. The LCBA Board members have been taking turns paying for lunch at their meetings and other committees are welcome to do the same. A motion was made to stop paying for lunches, was sec-onded, discussion ensued, and the motion passed.

The Board also dis-cussed having a policy regarding charities that ask for LCBA time, ask the LCBA to help distribute information, ask for LCBA financial support, and ask for LCBA endorsement. All members agreed there is a need to put a policy in place. Executive Director Perrin has created two pol-icies that will be circulated to the Board members, reviewed, and put on the next agenda to address.

In addition, the Board addressed attendance of Non-Members at LCBA Committee Meetings. It was discussed that if you were not a member, you cannot attend. There are challenges associated with enforcement which include the Chairperson knowing all of the members. Part of the benefits of being a member is attending the committee meetings. It was reported that 90% of the committees that hold regular meetings have non-members that attend. Also, they take advantage of the CLE that may be

provided at said meetings, without being a member.

A motion was made to carry over addressing a Dissolution Clause and Computer IT Services to the next meeting, was second-ed, motion passed.

The next Board meet-ing will take place on Au-gust 16, 2018, at noon, at the LCBA office. The Tuesday

before the Board meeting, the President will meet with the Executive Direc-tor and the staff to create an agenda, at 3:00 pm. At 4:00 pm that same day, the Executive Board will meet to discuss the agenda and additional issues.

A motion was made to adjourn at 1:42pm, was seconded, motion passed.

The Docket30

Let me begin by saying what an honor and privilege it is to serve

the Lake County legal profession as the Executive Director of the Bar Associa-tion and Foundation. With over 23 years of experience in Association Manage-ment (7 years as a National Program Manager with the US Jaycees (Junior Cham-ber of Commerce) and 16 years as the Executive Di-rector of a local Chamber of Commerce), I am confident that my knowledge and ex-perience working with vol-unteer members, volunteer committees, and volunteer board of directors will serve both organizations well by helping to advance the mis-sion and goal of the legal profession.

I hope and plan to meet and get to know as many of you as possible over the years and build lasting friendships and professional relationships. To help strike up conversation when we meet, here’s a little personal background about myself.

I grew up in Sugar Grove, Illinois (just west of Aurora) and graduated from Kaneland High School,

Waubonsee Community College, and eventually Southern Illinois University – Carbondale (Go Salukis!) with a degree in Radio & TV and Marketing. I sold advertising for several radio stations before becoming a National Program Manager with the US Jaycees in Tulsa, OK. I eventually left to pursue a career as a certified personal fitness trainer and manage a retail store selling home and commercial fit-ness equipment, which took me to Middleton, WI (a West suburb of Madison). I then took over as the Execu-tive Director of the Middle-ton Chamber of Commerce and then the Lake Zurich Area Chamber. I should also mention that while in Middleton I was a certified fire fighter with the Middle-ton Volunteer Fire Depart-ment and was certified fire instructor through the Madison and SW Wisconsin Technical Colleges.

Rotary Club President, CUSD 95 Foundation, Professional Development Chair of the IACCE Board of Directors, US Chamber IOM Graduate, numerous community committees,

and keeping up with my beautiful 14 year old Fresh-man (Meredith) have kept me busy over the past 15 years. I prefer locally owned businesses, especially local craft breweries, and playing golf, although don’t know why since I’m so awful at it. I also love big dogs (my last dog was a 165 lb. Great Dane named Duke), and as you might guess, staying fit and exercising.

Okay, that’s more than enough about me. Now I encourage you to come visit and tell me about you.

Speaking of visiting, have you seen the new digs yet? What a beautiful place this is. It was built for you and we love having members visit. Please bring your lunch and enjoy our Member Lounge (The Bar). Or schedule a meeting with a client in our Conference Room. Or stop in for a beer at the end of the day and

let’s chat.There are many mem-

ber benefits, such as using our facilities, that I will highlight over the next year. You joined this great organi-zation to benefit your career. Our job is to make those benefits available to you. But it’s your responsibility to take advantage of them. Think of your membership with the Bar Association as a gym membership. If you never go to the gym, you can’t blame them for not being in shape. If you feel you are not benefiting from your membership with the Association, then you most likely are not taking advan-tage of what we have to offer. If there’s something you think we should offer but don’t, let’s chat about it. We are here to serve you, but it’s up to you to be involved and engaged.

I look forward to seeing or talking with you soon.

Director’sChair

In the

BY DALE PERRIN

Let’s Chat

September 2018 31

The Docket32

CommitteeMeetings

Monthly

• RSVP to a meeting at www.lakebar.org.

• Meetings subject to change. Please check your weekly e-news, the on-line calendar at www.lakebar.org or call the LCBA Office @ (847) 244-3143.

• Please feel free to bring your lunch to the LCBA office for any noon meetings. Food and beverages at restaurants are purchased on a individual basis.

DAY MEETING LOCATION TIME

1st Tuesday Diversity & Community Outreach LCBA 12:15-1:15

1st Thursday Real Estate Primo, Gurnee 5:15-6:15

1st Thursday (Odd Mo.) Docket Editorial Committee LCBA 12:15-1:15

2nd Tuesday Criminal Law Waukegan Courthouse 12:15-1:15

2nd Tuesday (Odd Mo.) Immigration LCBA 4:30-5:30

2nd Wednesday Family Law Advisory Group (FLAG) LCBA 12:15-1:15

2nd Wednesday Trusts and Estates Park City Courthouse 12:15-1:15

2nd Wednesday Civil Trial and Appeals LCBA 4:00 - 5:00

2nd Thursday Young & New Lawyers TBD 5:30-6:30

3rd Tuesday Local Government LCBA 12:15-1:15

3rd Tuesday LCBF Board of Trustees LCBA 4:00

3rd Wednesday Debtor/Creditor Rights Varies 5:30-6:30

3rd Wednesday Family Law C-105 12:15-1:15

3rd Wednesday (Odd Mo.) Employment Law Varies 5:15-6:15

3rd Thursday LCBA Board of Directors LCBA 12:00 noon

BulletinBoard

Bar

To place an ad or for information

on advertising rates, call

(847) 244-3143

September 2018 33

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