THE DOCKET The Official Publication of the Lake County Bar Association December 2008· Vol. XV, No. 12

In this issue:

• One PL: An Overview of the College of Lake County's Paralegal Studies Program by Marty Gylleck

• Using the Defense Manpower Data Center by LTJG Courtney Cook

• A Discussion with Circuit Judge Jorge Ortiz by Shyama S. Parikh

• Whistling Past the Graveyard by Timothy A. Schlindwein

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LfW THE DOCKET The Official Publication of the Lake County Bar Association

DECEMBER 2008

3 President's Page: Family, Friends and the Bar Foundation ........................ ................... Bryan R. Winter

5 Chief Judge's Page ...................................................... .................................................. Hon. James K. Booras

7 One PL: An Overview of the College of Lake County's Paralegal Studies Program .... .................................. .. ................................... Marty Gylleck

10 LCBA Luncheon Meeting: Featuring Scott Turow

13 Using the Defense Manpower Data Center: Thirty Seconds That Could Save You Hours, Money, and Embarrassment.. .................................. LTJG Courtney Cook

18 A Discussion with Circuit Judge Jorge Ortiz ...................................................... ............ Shyama S. Parikh

21 Whistling Past the Graveyard ................................................................................ Timothy A. Schlindwein

26 Executive Board Meeting Minutes ................................... .. ........ ... .................. ...... Marjorie Sher, Secretary

29 Civil Trial and Appeals Committee Minutes ........................................................ ........ Richard N. Kessler

The Lake County Bar Association 7 North County Street • Waukegan, lIlinois 60085

(847) 244-3143 • (847) 244-8259 FAX

2008/2009 Executive Board Bryan R. Winter-President Scott B. Gibson-1st Vice-President Elizabeth Rochford-2nd Vice-President Perry S. Smith, Jr.- Treasurer Marjorie Sher- Secretary Fredric Bryan Lesser-Past President Margaret "Meg" Marcouiller Steven P. McCollum Han. Valerie B. Ceckowski Han. Fred Foreman

Staff

Christopher T. Boadt Executive Director

Melissa E. Brown ExecuHve Assistant

Margaret Georgevich • Thomas M. Gurewitz

Editorial Board Hon. Mitchell Hoffman & Stephen). Rice- Editors Ann Buche Conroy· James DeSanto· James Simonian Neal Simon. Hon. Raymond McKoski • Hon. Daniel Shanes Hon. Stephen Walter. Daniel Jasica • Rebecca Whitcombe

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The Docket is the offidal publication of the Lake County Bar Assoda­tion, 7 N. County Street, Waukegan, TL 60085 (847) 244-3143, and is pub­lished monthly. Subscriptions for non-members are $45.00 per year.

Reproduction in whole or part without permission is prohibited. The opinions and positions stated in signed material are those of the authors and not necesSarily those of the Association or its members. All submitted manuscripts are considered by the EditoriaJ Board. AU letters to the editor and articles are subject to editing. Publication of advertisements is not to be construed as an endorsement of any product or selVice advertised unless otherwise stated.

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December 2008 The Docket

President's Page Family, Friends and the Bar Foundation

by Bryan R. Winter

As we enter the holiday season, no matter how hectic the year has

been, when December arrives there always seems to be more time to reflect on family and friends. Even if you only glance through the pages of The Docket, the photographs and committee reports illustrate the fact that the LCBA cultivates and pro­motes the development of friendships between members. Last month, over 100 members attended the November lunch­eon, 180 people a ttended the re­tirement dinner for Judge Jane Waller, and over 75 members at-

tended the Wills, Trust and Pro­bate Committee seminar. None of these events were strictly business, so members could mingle and chat with each other and enjoy being with friends: a true benefit of LCBA member­ship. Building personal relation­ships is certainly a strength of the associa tion.

When we think of others over the holiday season, the LCBA should also be a natural resource for connecting with those outside of the association, particularly individuals who have challenges that involve so­cial justice issues. The LCBA Bar

Page 1

Founda tion should be a logical partner for our members who want to contribute or volunteer for community-based services. Yet, currently, the LCBA Bar Foundation does not have an annual budget. The LCBA Foundation was not organized to compete with or follow the same goals of the illinois State Bar Foundation. The LCBA Foundation's focus is on our members and Lake County resi­dents. Therefore, it is appropri­ate to evaluate whether more can be done to help Lake County charities and social ser­vice groups .

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balance of the year. These plans include a spring luncheon series that will once again include package pricing for the series. The luncheons will feature some of our State Legislators in Janu­ary, Illinois Attorney General Lisa Madigan as a guest speaker for April, and noted ABA legal author Jay Foonberg in May. All of these luncheons are expected to be held at the Greenbelt For­est Preserve Conference Center.

Another exciting program we will launch after the holi­days will be the Citizens Law Academy. The series will begin Tuesday, January 27, and end February 24. This will be a five-

December 2008

week series that will cover a dif­ferent area of law every week. The classes will be held a t the Grayslake campus of the Col­lege of Lake County.

Also, you should mark your calendars and plan on attending the President's Award dinner on Friday, February 27, and the installation ceremony for Scott Gibson as President on Friday, June 12, at the Deerpath Inn in Lake Forest

Most importantly, during this holiday season, remember your friends and family. Some­times, the holidays are over be­fore I finally relax enough to think of what I should be buy­ing my wife for a gift, let alone her January birthday! So in ad­dition to giving the Bar Founda­tion some considera tion, re­member tha t your loved ones should be a t the top of your list! Happy Holidays everyone. 0

BnJan R. Winter brywinter@aoi.com

That's where the help of the membership is needed. The Board of Directors and current Foundation chair Mark Peavey recently began discussing the possibility of expanding the role of the Bar Foundation. How­ever, it is clear that for the Foun­dation to expand its programs, more input from the member­ship will be needed. So a meet­ing/ reception will be planned to essentially "Focus on the Foundation." The Board would like to invite all members that are currently serving on charita­ble boards or in any other ca­pacity for charitable organiza­tions that service Lake County residents, as well as members that are interested in donating their time to such organiza tions. The da te for this meeting will be announced on the weekly LCBA emails that have been very suc­cessful in keeping our members informed, so make sure your correct e-mail address is on file with the Bar office.

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December 2008 The Docket

Chief Judge's Page guest written by

Tracy M. Poulakidas

The Honorable James K. Booras, Chief Judge of the Nineteenth Judicial

Circuit, was honored by the Hellenic Bar Associa tion wi th its Judicial Excellence Award at its Fifty-eighth Annual Installation

Dinner Dance and Scholarship Ball on November 1 at the Hyatt Regency McCormick Place in Chicago.

nity. As many Lake County Bar Association members know, Judge Booras came to the United States in 1970 after grad ua ting high school in Greece. With characteristic drive, he earned his Bachelor of

Science from North­ern llIinois Univer­sity in 1975. In 1979, he earned his Juris Doctor from Lewis University College of Law (now Northern Illinois University College of Law) and was admitted to the illinois Bar.

After a short stint in private practice, Judge Booras began his career in the State's Attorney's Of­fice, where he be­came known for his ability to connect with juries. He was head of the narcotics

division at the time of his ap­pointment to the bench.

In 1986, Judge Booras was named Felony Prosecutor of the Year by his peers. By 1991, he

Page 5

was described as "one of the county's top prosecutors." In June 2000, the State's Attorney's office honored Judge Booras with the Ben Ori Award.

Judge Booras was intro­duced by the Honorable Peggy Chiampas, a Hellenic Bar Asso­ciation Board Member and Cook County Associate Judge. Chiampas outlined Judge Booras's many career achieve­ments and his invaluable contri­butions to the Greek-American community. After describing his pioneering rise to the judiciary, Chiampas noted tha t there are currently 11 judges of Greek­American descent serving throughout the state of illinois. "And," she emphasized with pride, "three of those judges trace their roots to Uudge Booras's hometown of] Nestani­Tripolis."

When describing his re­markable career path, Judge Booras stated, "I am the product of Hellenism and the Ameri­can Dream." "I am proud and humbled," he Born in Nestani-Tripolis,

Greece, Judge Booras is an im­mense source of pride in the Greek-American legal commu-

Tracy Poulakidas is a Staff Attorney for the Nineteenth Judicial Circuit. She is a graduate of Chicago-Kent College of Law.

Page 6 The Docket December 2008

First Judicial ~istrict Appellate Court Justice Themis Kamezis with Cook County Associate Judge Oemetrios Kottaras

Judge Booras with Judge Peggy Chiampas

Judge Booras with Mistress of Ceremonies Christine Mig/lion of In TimeTV's "Healtheare Executive"

Nineteenth Judicial Circuit Staff Attorney Tracy Poulakidas; Mrs. Kathy Booras; Judge Booras and Irene, his wife; Judge Margaret Mullen and Mr. Frank J. Springer, her husband

Frank Springer and Judges Samuel Oer-Yeghiayan, Booras and Mullen

said in his acceptance speech. "1 am lucky because this country gave me the opportunity to be elected Chief Cir­cuit Judge of the third largest county in Illinois."

Judge Booras was accompanied by his wife, Irene; his aunt, Kathy; and his cousins, Nick and Peter Gountanis. Also present were his close friend, the Honorable Samuel Der-Yeghiayan, Federal District Court Judge for the Northern District of Illinois, and the Honorable Margaret Mullen of the Nineteenth Judicial Circuit.

"His recognition is richly deserved," said former col­league, Justice Mary S. Schostok of the Appellate Court's Second Judicial District.

Other dignitaries in attendance included His Excel­lency Ambassador Anastassios Petrovas of Greece; the Honorable Charles Kocoras, Federal District Court Judge for the Northern District of llIinois; the Honorable Thernis N. Karnezis, Justice of the Illinois Appellate Court's First Judicial District; the Honorable Demetrios Kottaras and the Honorable Martha Mills, Associate Judges, Cook County; the Honorable E. Kenneth Wright, Presiding Judge of the First Municipal District, Cook County; the Honorable Louis G. Apostol, Executive Di­rector of the State of llIinois Property Tax Appeal Board; and the Honorable Dorothy Brown, Clerk of the Circuit Court of Cook County.

Since being honored, Judge Booras has added two additional accomplishments to his resume. On Novem­ber 4 he successfully ran for retention, receiving over 79% of the vote. He was also recently re-elected Chief Judge by unanimous vote of his fellow Circuit Judges. 0

December 2008 The Docket

One PL

With Apologies to Scott Turow, an Overview of the College of Lake County's Paralegal Studies Program

by Marty Gylleck

We are privileged to have the College of Lake County, one of

the best community colleges around, sitting right in our back­yard. Four years ago, CLC added a Paralegal Studies pro­gram to its bevy of of-

Science in Paralegal Studies. Coursework for this degree in­cludes English, Math, Social Sci­ences, Computer, and Commu­nications, as well as a plethora of paralegal electives to choose from, for a total of 63 hours of

Page 7

take the same three courses tha t are the backbone of paralegal scholarship: Introduction to Paralegal Studies; Legal Re­search and Writing; and Litiga­tion.

Starting out with baby steps,

ferings. With over 250 students and 19 in­structors, it has be­come a very popular program of study. I am in a good position to enumerate the merits of that program, as I am just a few weeks from being ushered through its hallowed halls with a stamp of approval on my fore­head, ready with the rest of my classmates to be an asset to Lake County's legal com­munity. In this article,

The main entrance to the College of Lake County-portal to the halls of learning

we are introduced to statutes, case law, torts and contracts. We quickly learn that the question "was Mr. Smith guilty of DU!?" is NOT the issue of the case, but rather some­thing like: "Was Mr. Smith in actual physical control of a motor vehi­cle when he was just pushing the car along the road instead of driv­ing it?" Every single paralegal student learns to find statutes and cases on point in the lllinois Compiled Stat­

I will present a small snapshot of the College of Lake County's Paralegal Studies Program from the perspective of one of its stu­dents.

There are two paths students can traverse on the journey to Paralegalland. For those stu­dents who do not have a Bache­lors or Associates degree, CLC offers an Associate in Applied

college credit. Those students who already have a prior degree may pursue the Certificate in Paralegal Studies, which re­quires 21 total credit hours. Whether Certificate or Associ­ate, all students are required to

utes, Illinois Decisions, and North Eastern Reporter, to Shepardize to make sure they are still good law, to navigate around Westlaw, and to write their findings in a case brief. In Litigation class, we follow the

Marty Gylleck is a student at the College of Lake County and is currently interning at Lesser, Lutrey, and McGlynn, LLP, in Lake Forest.

Page 8

long and winding road from complaint to answer and discov­ery, pleadings and motions, to settlement or trial, as well as producing written samples of much of that paperwork.

Starting with these three foundational classes, students can branch off into many spe­cialized subjects, including Busi­ness, Criminal, Contract, and Family Law; Intellectual Prop­erty and Healthcare Law; Real Estate, Probate, and Bankruptcy, to name some. CLC has amassed a large, diversified pool of local legal talent to teach these courses. "Each adjunct facul ty member is a local practicing at­torney who works or specializes in the field that coincides with the subject they teach," states Gayle Miller, Department Chair of the program. "So the probate instructor practices proba te, the bankruptcy teacher practices bankruptcy, etc."

Internship is the capstone class for many paralegal stu­dents. Gayle Miller has solicited some local law firms to take one or two students under their wing for a semester, giving us the opportunity to observe the inner workings of a law office. In addi tion to trus time in the field, we meet one classroom hour a week to talk about our experience and discuss impor­tant and pertinent issues, such as what each of us learned in our placements the past week, how to write a good resume, confidential answers to ethlcal issues, and what to wear (and with what shoes!). This semes­ter's Internsrup class offers a va­riety of law specialties, with stu-

The Docket December 2008

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dents interning with firms that practice estate planning and probate law, family law, per­sonal injury, bankruptcy law, criminal law, and intellectual property.

Etrucs is woven as a continu­ous thread through every para­legal class I have taken at CLC. The two issues most often dis­cussed are confidentiality and the unauthorized practice of law. Maintaining confidentiality, we learn, is not just refraining from yammering loudly about the details of a case in the local coffee shop, or mentioning that-can you believe it?!-Mr. Miller is leaving six figures in rus will to the Hare Krishnas! Rather, it is never mentioning the fact that Mr. Miller darkened the door of your office at all,

much less any details, juicy or otherwise. For those who enjoy telling all, there are always jour­nalistic careers to be sought with the supermarket tabloids, wruch include the added incentive of not having to be very picky with the truth! Those who want to work as paralegals will have to find other things to gossip about.

Avoiding the unauthorized practice of law is easy when it comes to something such as not signing your supervising attor­ney's name to a document that you just drafted. The hard thing to remember is to not give legal advice. Even with the neophyte knowledge of a student, we are faced with situations where we know the right answer, but can't say it. This is especially difficult

i

I .,

December 2008

with friends and family. Aunt Phyllis doesn' t understand why you can't just answer her per­fectly simple question about the Rule Against Perpetuities. She has to go ask an attorney!?! I am sure that everybody, family, friends, and paralegals alike, will eventually become accus­tomed to paralegal ethics, and Thanksgiving invitations will be forthcoming again.

That was just a snapshot of what we learn. A complete pic­ture of CLC's paralegal program would not be possible without describing us as students. While we have representatives from many demographics, including students fresh out of high school, men, and those who are already receiving junk mail from AARP, the large majority of stu­dents in CLC's paralegal pro­gram seem to be women of mid­dle age. Often, we are on our third or fourth careers, with one of those commonly being sev­eral years at home with the kids. I have had classes with former nurses, teachers, dance instruc­tors, firefighters, accountants, caterers, math professors, and artists, to name a few. We mid-

The Docket

dIe-aged women, having been around the block a few times, bring a lot of experience and strength with us. We may not be able to win a trivia contest based on Black's Law Dictionary, but you can be assured that if we've traversed life this far without resorting to either murder or underwater basket weaving, we have learned how to cope with just about anything and every­thing - and thrive.

Why did we go into parale­gal? Many of us were won over by the siren call of excellent job growth and good money, as pre­sented in the Paralegal Informa­tion Session. Some of us were intrigued by a profession that, unlike nursing, teaching, and some others, lets us sit down until retirement. However, I know that some of my class­mates have always been fasci­na ted by the la w, and sa w this as the chance to follow their dream. They would have loved to have been a lawyer, but the path was never quite clear for them. Some are emboldened, however, to go on to law school after completing the program. At least one of my friends is pre-

Page 9

paring to take her LSA Ts and take the plunge towards hard studying and long Metra rides.

I am very pleased with the quality of the education that my classmates and I have received at CLC, and I am not alone in thinking so. While it is com­mendable to declare "We're number one!" (at least in our comer of the backyard), it is preferable to have outside sources of good repute to back up these assertions. The College of Lake County has been en­deavoring to do just that. The Paralegal Studies Program at CLC is in the final stages of ac­quiring approval by the Stand­ing Committee on Paralegals of the American Bar Association. I know that my classmates and I have had excellent teachers, learned a lot of big words, and had the opportunity to experi­ence many practical examples of the work we will be expected to do after we graduate. We may have been teachers, accountants, high school students, or moms, but now we are paralegals, and we are looking forward to join­ing you as part of the legal com­munity in Lake County. 0

Leslie Klocek's Friday morning Real Estate class. This day we completed form s for the seller at closing-knowledge we hope to use someday soon.

Gayle Miller assists Gayle Freedman.

Page 10 The Docket

LeBA Luncheon Meeting Featuring Scott Turow

O n October 30, author Scott Turow spoke at Waukegan City Hall to a full room of LCBA members. Mr. Turow's presentation was personal, informative, and very engag­

ing, as the following photos will document. If you're missing these luncheon meetings (photos of the Patrick Fitzgerald lunch­

Membership turnout was large

Judge Diane Winter

eon will appear in next month's Docket), you're missing out on a great new benefit to LCBA membership!

LCBA Executive Director Chris Boadt

Carrie Lincoln

State's Attorney Mike Waller

December 2008

Bryan Winter and Judge Foreman

D.J. Vorderstrasse

Rick Scott

December 2008 The Docket Page 11

Rick Lesser Judge Daniel Shanes

Tricia Cornell Steve McCollum and Justice Ann Jorgensen

Turow with Bryan Winter Perry Smith Keith Grant

Turow with Mike Mermel Judge Jane Waller and Rick Kessler Michael Conway

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December 2008 The Docket Page 13

Using the Defense Manpower Data Center

Thirty Seconds That Could Save You Hours, Money, and Embarrassment

by LTJG Courtney Cook

O ne of the best experi­ences for a la~er is winning a case. There

are several experiences, though, that can cause an attorney to forget all those successes and get bogged down in feelings of embarrassment. One such ex­perience is telling a client that a successful result is being thrown out. Another is being face to face with a judge, an­swering questions about a pos­sible ethical breach. These ex­periences only worsen after dis­covering tha t a thirty second investment at the beginning of the case could have prevented both. In cases that trigger the protections of the Servicemem­bers' Civil Relief Act, these ex­act scenarios can and have oc­curred. Fortunately, the Depart­ment of Defense Manpower Data Center offers a tool which can prevent these situations from ever rna terializing.

I. The SCRA's Protections

Under the Servicemembers' Civil Relief Act (SCRA),! new members of the military are en-

I. 50 U.5.c. app. §§ 501-596 (2008). 2. See 50 u.s.c. app. § 535.

titled to many benefits not avail­able to the ordinary citizen. These benefits include protec­tions against high interest rates, repossession, foreclosure, and the inability to appear in court, just to name a few. The purpose of such benefits is to ensure that those who choose to serve their country are not burdened for or prevented from doing so. For instance, new, active, and sepa­ra ting servicemembers are often assigned to duty stations far from their original horne. To meet the military'S needs to move service members every two or three years, or to return them horne after an honorable separa tion, the servicemember must terminate a residential lease long before it expires. If servicemembers are required to pay the remainder of the lease, they will either face financial hardship as a result of their de­cision to serve, or, for new members, decline to serve at all. The SCRA prevents such a bur-

den by allowing servicemem­bers to terminate the remainder of their lease on proper notice.2

Creditors and others with legitimate grievances against servicemembers sometimes find that these service-related bene­fits interfere with their ability to redress those grievances. Often, the hurdles that must be crossed are not apparent at the outset, and only return to haunt those with legitimate complaints long after they believe the issue was resolved.

II. Back to Square One

One area where creditors frequently run afoul of the SCRA is self-help repossession. Under section 532 of the SCRA, a creditor must obtain a court order before repossessing an active-duty servicemember's vehicle if the servicemember purchased the vehicle prior to entering the service. If a creditor violates this prohibition on self-

Courtney Cook is a Lieutenant Junior Grade in the United States Navy Judge Advocate General's Corps. She is assigned to the Naval Legal Service Office in Great Lakes, Illinois, where she practices legal assistance and criminal defense. She graduated from the Ohio State University Moritz College of Law in 2007 and is a member of the Ohio bar.

Page 14 The Docket

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help repossession, a court can find the creditor liable for all previously-paid installments and order the creditor to release the servicemember from the re­mainder of the purchase con­tract.3 Creditors who knowingly violate this prohibition face criminal liability, including fines and imprisonment of up to one year.4

In the face of such repercus­sions, if a vehicle is repossessed from a servicemember wi thou t a court order, creditors will of­ten seek to settle the case before a complaint is filed . This situa­tion is sometimes seen in mili­tary legal service offices, and the settlements are generally as follows: If the vehicle has not yet been sold, it is returned to the servicemember at the credi­tor's expense. The creditor must then file suit in court to repos­sess the vehicle after additional

payments are missed. If the creditor has already sold the vehicle a t the time a military legal assistance attorney be­comes involved, the creditor will often offer to forgive the remaining debt and remove any negative trade lines from the servicemember's credit report.

Creditors might protest tha t they have no notice of a service­member's entry onto active duty and that they should not, therefore, be held liable if they repossess a servicemember's vehicle without a court order. Section 532, however, creates no exception for lack of notice. While other provisions of the SCRA specifically require ser­vicemembers to notify a creditor of their entry onto active duty in order to reap the benefits,S no such requirement exists in sec­tion 532. Therefore, even if the creditor is unaware of the

December 2008

debtor's military status, the ve­hicle still cannot be repossessed without a court order. Conse­quently, it is worthwhile for a creditor to learn a debtor's mili­tary status prior to attempting repossession. A cost-effective method for doing so will be dis­cussed later in this article.

III. Case Closed?

It is not only creditors acting outside of court who find them­selves in violation of the SCRA. Plaintiffs seeking default judg­ments also find themselves at odds with the SCRA, often fail­ing to abide by its protections against default judgments. These protections require that certain steps be taken in every case prior to a default judg­ment's entry, and provide an avenue for relief once a default judgment is entered.

A. Pre-Entry Protection

Under SCRA § 521, a plain­tiff seeking a default judgment must file an affidavit of military service in every civil action where a defendant does not make an appearance.6 The affi­davit must state that the defen­dant is either not in military ser­vice, is in military service, or it is unknown whether the defen­dan t is in mili tary service, and

3. Jd. at § 532(c)(1); see, e.g. , Hanson v. Crown Toyota Motors, 572 P.2d 380 (Utah 1977) (granting servicemember almost full refund of the payments he made on the installment contract after creditor repossessed and sold vehicle without CQllrt order).

4. 50 U.s.C app. § 532(b)(1). 5. See, e.g., 50 U.S.C app. §§ 527 (notice required for automatic reduction in interest rate), 535 (notice to terminate lease), 535a (notice

to terminate cellular phone contract). 6. 50 U.s.C app. § 521(a). Many courts have held that this affidavit must be filed contemporaneously with, or as close as possible to,

the entry of the default judgment, not just with the original pleading. See, e.g., B. & B. Sulphur Co. v. Kelley, 141 P.2d 908 (Ca!. App. 1943); National Bank of Far Rockaway v. Van Tassell, 36 N.Y.S.2d 478 (N.Y. Sup. 0.1942).

December 2008

there must be facts supporting each conclusion.7 If the defen­dant is in military service, an attorney must be appointed to represent the defendant. 8 If the status of the defendant's mili­tary service is unknown, the plaintiff may be required to file a bond that would indemnify the defendant if he is later found to be in the service and he is able to get the judgment set aside.9

Failure to file this affidavit does not render a default judg­ment void. Rather, the default judgment is voidable only if the defendant was, in fact, a service­member at the time of judgment and only if the SCRA's require­ments for setting aside a default judgment are otherwise met. JO

In other words, if the pre-entry protections are ignored, the remedy is not an automatic va­cating of the judgment, but is, rather, use of the post-entry ave-

7. 50 u.s.c. app. § 521(b)(1). 8. Jd. at § 521(b)(2). 9. Jd. at § 521 (b)(3).

The Docket

nue of relief under section 521 (g).

B. Post-Entry Protection

Under SCRA § 521(g), if the defendant indeed turns out to be in military service at the time of a default judgment's entry and the defendant never made an appearance, the court "shall," upon application by the defendant, reopen the judgment if (1) the defendant's military service materially affected his ability to mount a defense, and (2) the defendant has a meritori­ous or legal defense to the ac­tion. This is not a burdensome threshold to meet if the service­member actually has a defense to the action.

In Murdock v. Murdock, a ser­vicemember's former spouse filed a petition for a rule to show cause regarding the ser­vicemember's failure to make

Page lS

child support payments.11 At no time did she file a military affi­davit. The servicemember had actual notice of the hearing and even communicated with the court informally, but he did not attend the hearing. The trial court went forward with the hearing and not only awarded the former spouse an arrearage in child support, bu t also or­dered the servicemember to pay thousands of dollars in marital debt and attorneys' fees. The servicemember later attacked the judgment under section 521 (g), showing first that his mili­tary service materially affected his ability to attend the hearing because he was stationed in Ja­pan and, second, that he had a meritorious defense to the ac­tion because he had evidence he had made all child support pay­ments. Based on these facts, the court vacated the judgment and ordered a new trial. 12

10. Murdock v. Murdock, 526 S.E.2d 241, 247 (S.c. Ct. App. 1999), citing Thompson v. Lowman, 155 N.E.2d 258 (Ohio Ct. App. 1958). See also Citibank, N.A. v. McGarvey, 765 N.y.s.2d 163 (N.Y. Civ. Ct. 2003); Hart, Nininger & Campbell Associates v. Rogers, 548 A.2d 758 (Conn. App. Ct. 1988); Snapp v. Scott, 167 P.2d 870 (Okla. 1946).

11. 526 S.E.2d at 244. 12. Jd. at 248.

Page 16 The Docket December 2008

Section 521(g) is not only favorable to the ser­vicemember substan­tively, but also proce­durally. The service­member has ninety days following release from

Although failure to comply with the military affidavit requirement does not result in automatic vacating of default

judgments, this does not mean that such failure is without its costs.

Order to Show Cause di­recting Richard ]. Miller, Esq. to appear before this Court and explain a glar­ing inaccuracy in an Affi­davit of Default filed with this Court.. .. 17

active duty to file the ap-plica tion to vacate a de-fault judgment.13 Unlike the two-year time limit for re­opening judgments in the Illi­nois Code of Civil Procedure, this time limitation is quite open­ended even absent fraud or le­gal disability.14 Ninety days af­ter release from active duty could, after all, corne thirty years after the default judgment is entered.

C. Consequences of Failure to Comply with Affidavit Requirement

Although failure to comply with the military affidavit re­quirement does not result in automatic vacating of default judgments, this does not mean that such failure is without its costs. First, failure to me the af­fidavit necessarily means that an attorney does not have full knowledge or control of the case. If no affidavit is med and the defendant's military status is unknown, then steps cannot be taken at the outset to ensure the default judgment stands, such as the appointment of an attorney. Moreover, without

13. 50 U.s.c. app. § 521 (g)(2). 14. See 7351LCS 5/2-1401 (2008). 15. 50 U.s.c. app. § 521(c).

this knowledge, the client will not have warning that any de­fault judgment entered will probably be vacated-for exam­ple, if the defendant is in Iraq.

A more serious consequence involves submitting a false affi­davit. If the affidavit is know­ingly false, it could result in criminal charges.15 If it is false as a result of poor investigation, it could prove to be a ground for sanctions. In a recent bank­ruptcy case, In re Templehoff an attorney filed a military affida­vit attesting that the debtor was not in military service.16 After the court discovered this affida­vit to be erroneous, it sum­moned the a ttorney before the court:

This matter is brought sua sponte via the issuance of an

Apparently, the debtor was in fact in the military,

serving in Iraq, and his bank­ruptcy petition stated as much. The Court was understandably ready to impose sanctions on the attorney for his false and fraudulent affidavit. Fortu­nately, as will be discussed in the next section, the attorney was saved by a thirty second action his office had taken just prior to ming the motion at is­sue in the case.

IV_ Resolution from the Beginning

How are these problems avoided? How does a creditor know that a vehicle it is repos­sessing belongs to a service­member, or that a defendant who does not make an appear­ance is in the military? The SCRA does not require the ser-

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December 2008

vicemember to inform a creditor of his entry onto active duty in order to avoid self-help repos­session or a default judgment.l s

The burden is therefore on the creditor or the plaintiff.

Fortunately, there is a cost­effective remedy for those in both categories. The Depart­ment of Defense Manpower Data Center (DMDC) keeps re­cords, available on a public website, of individuals currently on active duty and lists the date on which each began active ser­vice. The free website is avail­able at https: / /www.dmdc.osd. mil/scra/owa/hom. Through this website, an individual's ac­tive duty status can be checked within thirty seconds using the individual's social security number and last name.

For the attorney in In re Tem­plehoff it was this very action that saved him from being sanc­tioned by the court. After the

18. See supra note 5 and accompanying text. 19. 339 B.R. at 52. 20. ld.

The Docket Page 17

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court ordered him to show cause for his faulty affidavit, the attorney first "ruefully" admit­ted that he had not in fact read the debtor's petition, which clearly showed the debtor's oc­cupation in the military.19 He then showed tha t his office per­formed a search of the DMDC system four days prior to filing the motion and the DMDC did not show the debtor as being on active duty.20 The fact that the attorney did actually search the database effectively gave him a safe harbor from sanctions:

The Court thinks, given the apparent prevalence of us­ing the Data Center as the source of information re­garding military status, that Mr. Miller's Affidavit was made with the degree, albeit at the minimal end of the scale, of investigation neces­sary.21

This attorney's experience makes for an excellent example. Although the DMDC is not full­proof, it does provide major benefits at a very small cost. Creditors follow many proce­d ures to repossess vehicles, and searching the DMDC adds only thirty seconds to strengthen that process. Plaintiffs and their at­torneys want successful resolu­tions tha t last, and searching the DMDC adds only thirty seconds to have faith in a default judg­ment. Attorneys need their li­censes and their reputations, and as the case of In re Temple­hoff shows, the DMDC offers safe harbor for only thirty sec­onds of an office's time. There are many preparatory steps at­torneys take in every case. Thirty seconds with the DMDC should be one of them. 0

21. ld. at 55. The Court did add that not only should DMDC be searched, but that, at least in bankruptcy cases, the debtor's petition must be read. ld. Usually this goes without saying.

Page 18 The Docket December 2008

A Discussion with Circuit Judge Jorge Ortiz

by Shyama S. Parikh

The Honorable Jorge Ortiz is the youngest of nine children and was born

and raised in the Logan Square area of Chicago by parents from Puerto Rico. He obtained his undergraduate degree in Politi­cal Science from Loyola Univer­sity before attending John Mar­shall Law School. Judge Ortiz interned at the Lake County Public Defender's office, and he graduated from law_ school in 1989. After graduating, he worked in the Lake County Sta te' s Attorney's office before going into private practice with Soffietti, et al., in the late 1990's. He became a partner with that firm and worked there until he was appointed an Associate Judge on December 2, 2002. Judge Ortiz describes his ap­pointment to the bench as a tre­mendous honor.

Upon being appointed, Judge Ortiz presided at Lake­hurst for approximately one year. He was the first judge to preside at the Mundelein branch court, and he did so for about one year until joining the Family Division in January 2005.

When he arrived on the first floor, Judge Ortiz handled the

call in courtroom C-107, mostly prove-ups and adoptions, as well as the Thursday child sup­port call in C -105. He also pre­sided over involuntary mental

commitment cases, divorce and visitation cases, and provided backup to the entire Family Di­vision. Judge Ortiz was as­signed to his own trial call in Courtroom 105 when the Hon-

orable Joseph Waldeck was re­assigned, and he continues to preside in that courtroom.

Judge Jorge Ortiz was ap­pointed Circuit Court Judge on August 25, 2008. He remembers exactly how it happened and speaks very proudly of the events of that day: he came home one evening and heard a message left by Illinois Supreme Court Justice Robert Thomas asking for a return telephone call. Upon returning the call, Judge Ortiz was pleasantly sur­prised at the great news! He is very humbled and feels tremen­dously honored that the Su­preme Court had enough faith and trust in him to appoint him a Circuit Judge.

In addi tion to being a Circui t Judge, Judge Ortiz serves on the Sta te of Illinois Child Support Advisory Committee, works on child support initiatives at the federal and local levels through the federal Office of Child Sup­port Enforcement, is on the

Shyama S. Parikh is an Associate at Shaw Law Ltd. and exclusively practices Family Law. She is a Guardian ad Litem, Child Representative, as well as a Court-Approved Mediator. Among her other activities, Shyama is the Vice President of the Association of Women Attorneys of Lake County and chairperson of the LCBA Public Relations Committee.

December 2008

boards of NICASA and the Mano a Mano Family Resource Center, and is a member of the Health Care Foundation of

Judge Jane Waller

Northern Lake County, as well as the Illinois Judges Associa­tion.

The Docket

I asked Judge Ortiz about his experiences working with various individuals during his legal career, and he mentioned a few that stood out to him. Judge Ortiz feels honored to have worked with Judge Jane Waller, who he describes as a pioneer and a role model for all lawyers and judges.

In addition, Judge Ortiz named Judge Gary Neddenriep as a good friend and mentor. He mentioned how Judge Nedden­riep leads by example, and stated that he feels lucky to have had the opportunity to work with him. Judge Ortiz noted tha t all of the judges in the Family Division work very well together and make a good team-something he finds to be extremely important. He was excited when the illinois Su-

Walter • Ellis WE MEDIATE & ARBITRATE

Page t 9

preme Court recalled Judge Neddenriep to the bench for a temporary assignment in our Circuit.

I asked Judge Ortiz what advice he would offer our legal community, and he offered the following: he would like to en­courage the young lawyers to be active in the Lake County Bar Associa tion, as well as in their communities. He feels that the gifts and talents of the young lawyers are needed to continue the advancement of the bar and encourages them to become child representatives and me­diators.

For a ttomeys in general, Judge Ortiz emphasized that he appreciates civil and courteous behavior from the practitioners who appear before him. He said that he understands that the na-

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Page 20 The Docket December 2008

DEPOSITION REPORTERS

vices invited Judge Ortiz to speak in San Antonio, Texas, at the Western Interstate Child Support Enforcement Confer­ence. Also, the illinois Family Support Enforcement Associa­tion recently honored Judge Ortiz with several others, in­cluding the Nineteenth Judicial Circuit, Irene Curran, the Lake County State's Attorney's office, Lori Medernach, and the illinois Department of Health and Fam­ily Services, for our Circuit's problem-solving child support enforcement call. In addition, Judge Ortiz will be speaking at the ISBA Family Law Seminar this November.

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ture of the cases before him can be contentious and emotionally charged; however, he believes a calm and well prepared advo­cate is the one most likely to prevail in his courtroom. Judge Ortiz appreciates the hard work of lawyers and has learned a lot from them, both prior to and after taking the bench.

Judge Ortiz's experience on the first floor has made him more aware of the need for al­ternative methods of resolving family conflicts. He mentioned that his work in the Family Di­vision has given him a greater appreciation for the struggles families face and a better appre­ciation for his own family. He is very thankful to his parents and his siblings for the sacrifices they made for him. In addition, he is thankful to his wife and children for supporting him and helping him reach his current position.

Judge Ortiz looks forward to participating in the administra­tion of the Nineteenth Judicial Circuit and working with the judiciary to improve the way it serves the public. In addition, he looks forward to continued

COURT REPORTERS

Deborah l. Severson, CSR

work with the Lake County Bar Association in general, as well as the very active Family Law section. In particular, Judge Ortiz said tha t he would like to continue incorporating problem­solving court techniques into our child support enforcement call and to see the expansion of the Volunteer Mediator Program.

In September, the Depart­ment of Health and Human Ser-

You can find Judge Ortiz in Courtroom C-1OS, except on Thursdays when he conducts Pre-Trial Conferences in C­lOSA. Congratulations Judge Ortiz on your appointment to Circuit Judge! 0

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December 2008 The Docket Page 21

Whistling Past the Graveyard

by Timothy A. Schlindwein

For most of the past 70 years, the economic and financial travail of the 1930s has been avoided in developed countries around the world. As a result, each major economic and stock market down­turn was met with the belief that "it's different this time." Each time, investors were rewarded for

staying positive as that most dire of situations indeed did not repeat. For the first time in the post-World War II period, however, a frequent headline in recent days has been, "Not since the Great Depression . ... " Will this be the cycle when whistling past the graveyard of economic depression does not save the day? A review of cycles may provide some guidance for the period ahead.

The Nature of Cycles

Market and economic cycles have repeated much like nature's seasons. Nevertheless, new market cycles have been accompanied time and again with the "different this time" prinCiple. Recall the technology bub­ble and the housing bubble. In the 1990s, the Internet was going to revo­lutionize the world, making the busi­ness cycle different this time. The Internet has changed all of our lives in many ways, but that provided lit­tle support for technology stocks priced on the stuff of dreams rather than the reality of earnings. Not so very long ago, the housing market was seemingly different this time, supported by the new world of finan­cial engineering, easy credit (Le., sub­prime) and low interest rates. It turned out that house prices do not always go up.

There is a regularity in market cy­cles that is captured in this simplified chart. The challenge is to identify what position in the cycle is at hand.

Euphoria

Optimism

Simplified Market Cycle

Optimism

Timothy A. Schlindwein is Managing Principal of Schlindwein Associates, LLC, an independent investment advisor with offices in Chicago and Dallas. Mr. Schlindwein possesses over 39 years of experience in the investment management industry. He has created mutual funds, managed mutual funds and institutional portfolios, and headed an investment firm with managed assets exceeding $28 billion. He earned his bachelor's degree from the University of Notre Dame and his MBA from the University of Chicago, where he serves on the Graduate School of Business Advisory Council.

Page 22 The Docket December 2008

For all the advancement in the study of economics and finance, for all the tools and techniques avail­able to investors in this age, the fundamentals of human behavior and the opposite emotions of greed and fear are not different each time. Studies in behavioral finance have suggested that fear dominates greed. A bear stock market of the magnitude just experienced provides ample reason for extreme inves­tor fear.

Bear Market Perspectives

The bear stock market of 2007-2008 has but three peers reaching back to the 1920s. The following ta­ble provides an overview of all four, using the Dow Jones Industrial Average ("DJIA") as the market in­dex:

DATE LEVEL

HIGH to LOW LOW to OLD HIGH

DATE LEVEL

HIGH to LOW LOW to OLD HIGH

DATE LEVEL

HIGH to LOW LOW to OLD HIGH

DATE LEVEL

HIGH to LOW LOW to OLD HIGH 4-Year Recovery Time 8-Year Recovery Time 12-Year Recovery Time

1929 -1932 HIGH LOW

9/3/1929 7/8/1932 380.33 41.22

% Change Years -89% 2.8 829% 22.4

1973 - 1974 HIGH LOW

1/11/1973 10/4/1974 1051.7 584.56

% Change Years -44% 1.7 82% 8.1

2000 - 2002 HIGH LOW

1/11/2000 10/9/2002 11722.98 7386.27

% Change Years -37% 2.7 59% 4.0

2007 - 2008 HIGH LOW

10/9/2007 10/27/2008 14164.53 8175.77

% Change Years -42% 1.1 73%

OLD HIGH 11123/1954

382.74

Annual Return -54% 10%

OLD HIGH 111311982 1065.49

Annual Return -29% 8%

OLD HIGH 10/3/2006 11727.34

Annual Return -15% 12%

OLD HIGH 11

14164.53

Annual Return -41%

15% 7% 5%

December 2008 The Docket Page 23

As painful as each bear market has been, the cycle does tum, and the subsequent period of recovery has proven rewarding for investors. To be sure, the time period required after each downturn to regain prior highs has varied widely. The highlighted panel at the bottom of the prior table provides potential market returns for different recovery horizons to the last market high.

Financial Extremes

Recent market volatility has been extreme by any measure. The daily price changes of the DJIA pro­vide perspective in Chart A. Over the entire history of the DJIA from May 1896 through October 2008 (over 30,000 trading days), the daily price change has averaged less than J.2 percent. Over the past two months, the average daily price change for the DJIA has been 3%.

While the severity of the current financial crisis is most visible in the loss of stock market value around the world, volatility has been high in many areas. Credit market volatility can be seen in Chart B for the U.S. bond market and in Chart C for the money markets.

.,. ". ..

CHART A

Dow Jones Industrial Average Daily Changes

September - October 2008

CHART C

, ... ,--------------------, .... Yield Spread

.... Eurodollar Rates Vs. U.S. Treasury Bills

....

CHART B

'R,-------------------,

Yield Spread BBB Corporate Bonds Vs. AM Corporate Bonds

....

....

....

CHART D

$1,000,000

I U50,ooo

I U.S. Monetary Base I (millions)

5900,1100

St5D.D(IO

"-$800,000

$750,000

p" J>'1. ~ ~ I',/' ~ t- "," ~ ~ p'l./."p'b <;>" ~ <;>"/ P",/,/: ,;>" .,. ,,_ ~ .;J., ') )J' .. ,s. '" 0'" ~i" Q-- ') ,,_ .,\ oil' ,. 'S)J' rI

Page 24 The Docket December 2008

Economic Fallout

The U.S. is experiencing an unwinding of a very leveraged economy. This process of unwinding has led to a global financial crisis, and this crisis has brought forth unparalleled policy responses from cen­tral banks around the world. Chart D shows the policy response of the U.S. Federal Reserve. This re­sponse is notable for both its magnitude and its delay in coming. The current financial crisis has been on­going for over a year, and yet effective policy response is but a few weeks old. As a result, an economic slowdown has turned into a full recession.

Chart E reflects the most recent projections for real U.S. economic growth into 2009. If these projec­tions become reality, this downturn will be the most severe in seventeen years.

CHART E

Real Gross Domestic Product Year over Year Growth

12'O%r--------------------,

•••

CHART F

Corporate Profits After Tax with rvA and CCA Year over Year Growth

~ .. r------------------__, lO.ft ______________________________________ _

40." _____________________________________ _

. ...

.... 10 ,"

_10.K

~ ... L-_________________ ___l

The potential implications for stock market returns can be seen in Chart F. The downtrend in corpo­rate profits is projected to be the most severe of the past two decades. Changes in stock prices have tended to be a leading indicator of economic activity and profit growth. If past cycles do repeat, then the recent upturn in stock prices may be an early indicator of the economic recovery ahead.

Back to Investing Basics

Some invest for the sport of investing. Most invest as a means to an end-saving for a home pur­chase, growing assets for retirement, funding a child's or grandchild's education, or providing income in retirement. A clear understanding of end goals, current position, time horizon and risk tolerance must precede the launch of any investment program. The same deliberative process should precede any deci­sion to alter the course of a sound program already in operation.

Risk tolerance may be difficult to assess, but its impact on investment outcomes can be critical. One's tolerance for risk may not be known for sure until it has been tested. With the severity of the recent test, it is understandable that making portfolio changes can be a first response. Such changes may well be ap­propriate, but only if not reacting strictly to declining (or rising) markets. Before any changes are made to a sound investment program, particularly in challenging times, it is best to go back to basics first. Re­affirm goals and time horizons, as well as risk tolerance, to ensure that the investment program is appro­priate.

December 2008 The Docket Page 25

Diversification Lives

In a period when asset values are falling sharply, it may seem that the time-proven investment prin­ciple of diversification is ineffective. Certainly, its benefits are muted at a sector level (e.g., large com­pany stock funds versus small company stock funds) when most every stock is falling in price. There are clear benefits of diversification at this level throughout a full market cycle, but they can be muted at mar­ket extremes.

Portfolio diversification in many ways is "moderation in all things." It is balancing that which can grow (stock funds) with that which is secure (money market funds). Government bond funds provide some income with less price risk, while high-yield bond funds provide higher income with more price volatility.

Over the past year, a portfolio invested in U.S. Treasury notes returned +7.2% while the total U.S. stock market return, as measured by the Dow Wilshire 5000, declined -36.4%. A portfolio with 50% in­vested in both bonds and stocks would have returned -14.5% in this period. This is a large loss and a very disappointing outcome, but the diversified portfolio's return certainly was better than a portfolio invested 100% in the stocks.

Looking back over the past 87 years, the best one-year return from the U.s. stock market was +154.3%, and the worst one-year return for the U.s. Treasury note market was -13.1%. Fifty percent in­vested in each would produce a return of +70.6%, less than 100% in stocks but much better than all bonds.

So what happens if these historical returns were to repeat in the next year (this is not a forecast that they will)? The two-year return for stocks would be +27.2% and the two-year return for bonds would be -3.5%. The two-year return of a portfolio allocated 50% to each would be +20.7%. This is the benefit of di­versification. 0

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Page 26 The Docket

Executive Board Meeting October 16, 2008, Minutes

by Marjorie Sher, Secretary

Members Present: Bryan Winter, President

Scott Gibson, First Vice-President

Elizabeth Rochford, Second Vice-President

Rick Lesser, Immediate Past President Perry Smith, Treasurer

Marjorie Sher, Secretary Margaret Georgevich

Tom Gurewitz Meg Marcouiller

Chris Boadt, Executive Director

1. Treasurer's Report. The Treasurer reported to the Board a positive cash flow this month due to the receipt of funds from ongoing semi­nars. However, there is some concern that the Crimi­nal Law Seminar may have cost more than the revenues received. The LCBA has re­ceived approximately $1,300 in Associate and Student Membership Revenue. The statements have been sent out for the Lawyer Referral Service and the LCBA is cur­rently receiving these reve­nues. The LCBA has a ma­turing CD, which is earning interest in the amount of 4.7% per year. When this

money is reinvested, we ex­pect that the interest rate will be reduced dramatically. There was a motion duly made, seconded, carried and it was resolved that a) the Treasurer's Report was ap­proved; b) the CD would be cashed out and the funds placed into our operating checking account and c) Chris Boadt obtain a second American Express Credit Card to use for LCBA busi­ness. The treasurer would continue to receive all sta te­ments from the credit card prior to sending them to the bar office.

2. Churchill Photography. Churchill Photography was present and taking photo­graphs at the last LCBA membership meeting. The Board agreed that Churchill Photography would be pre­sent at the next three meet­ings at a cost of $175 per meeting. The Board encour­ages the membership to make use of the photogra­pher at the meetings and have pictures taken with Au­thor Scott Turow, U.s. Attor­ney Patrick Fitzgerald and other distinguished speakers

December 2008

and guests. 3. Prior Minutes. A motion

was duly made, seconded, carried and it was resolved that the minutes from the September 18, 2008, Board and Executive Session Meet­ings were approved.

4. New Members. After dis­cussion and upon motion duly made, seconded and carried, it was resolved that the Lake County Bar Asso­ciation would admit the pro­posed new members, associ­ate members and student as­socia te members to the Asso­ciation. The board, on behalf of the bar, welcomes the fol­lowing new members:

Attorney Members: AmyC. Bates Lori L. Bruce Mark S. Ernst

Michael D. Froelich Reid D. Henderson Mitchell S. Sexner

Associate Members: Diana M. Clark Sheri L. Daun Gwen MacKay Lauren Soprani

December 2008

Student Associate Members: Karen Cetner Regina Diallo Erin Ethington

Shawn Forsythe Stephanie Preza

5. Outstanding Dues. The Board reviewed those mem­bers who are delinquent in paying their dues . The Board discussed the benefits of membership, and how it was unfair to the member­ship to allow non-paying "members" to receive such benefits. Therefore, in the future, non-paying members of the LCBA will be dropped from the roster and will not receive The Docket, the lower cost for CLE, free CLE and the other benefits that one is granted by being a paying member of the LCBA. With the request for the payment of January, 2009, dues Chris will forward to each member of the LCBA the deadline dates for payment of the dues as well as the date on which the non-paying "member" will be dropped from the roster and prohib­ited from receiving benefits.

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6. Disposition of Legal Docu­ments held at the Office of the LCBA. When LCBA members Lee Sparks and Wayne Flannigan passed away, original wills and other documents were or­dered to be stored at the of­fice of the Lake County Bar Association. The wills were referenced with open pro­bate estates and those wills were filed with the Clerk of the Circuit Court. Addi­tional clients were located and the original wills were returned to them. The LCBA office is still holding numer­ous documents belonging to clients of both Attorney Flan­nigan and Attorney Sparks as the clients were not lo­cated and the LCBA does not know to whom to return the documents. Rick Lesser agreed to investigate the is­sue of what should happen with wills and other original documents when an attorney dies and the client cannot be located. Rick will submit a memorandum to the LCBA for further considera tion of the disposition of these docu­ments.

Conference Room Available Computer-Aided Transcription Minuscripts

L & L Reporting Service, Inc. 28 Years Experience

Lori A. Eder

COURT REPORTERS 9 North County Street Waukegan, IL 60085

(847) 623-7580 FAX (847) 623-7597

Page 27

7. People's Law School. The Illinois State Bar Association has requested that the LCBA engage in the "People's Law School" to teach the commu­nity about legal issues, which in tum will make for a more informed public both in and out of court. There are cer­tain grants which are avail­able to bar associa tions who engage in this program. The program would be offered a) free to the public, b) on four or five consecutive weeks, c) on a specific evening of the week, and d) in the begin­ning of the year. Each eve­ning would consist of one topic and would be geared toward "helping the average person understand and use the law in daily life." A mo­tion was duly made, sec­onded, carried and it was resolved that the LCBA would submit an application to obtain a grant from the ISBA to fund the program and to present the same be­ginning early next year. This program is consistent with the bar president's theme for the year, which is "Engaging Society." The committee chairpersons are encouraged to speak to their members about volunteering their time to present a topic at the pro­gram.

8. Dissemination of Judicial Candidate Recommenda­tions. The LCBA has rou­tinely conducted bar polls regarding the qualifica tions of the Judicial Candidates. The LCBA has received in­quiries about the results in reference to the candidates

Page 28

who are running for election on November 4, 2008. The LCBA has been verbally pro­viding the results to any in­dividual who calls in to the office. These bar results will be made available on the LCBA website.

9. Dinner Reception for the Retirement of Judge Jane D. Waller. Judge Waller's re­tirement dinner is scheduled for November 20, 2008, at Glen Flora Country Club. There was discussion about the cost and the implementa­tion of the same. The appli­cation is online at the LCBA website, and all members are encouraged to attend to thank Judge Waller for her hard work and dedication to the Judiciary, the members of the bar and the LCBA.

10. The Campaign for Legal Services. The LCBA has supported Prairie State Legal Services and the Campaign for Legal Services in the past by contributing to the Cause. LCBA agreed to match its contribution of 2007 by con­tributing to the Campaign for Legal Services in the amount of $1,000 as its 2008 contribution.

11. Executive Directors Report. a. Website Update. The

website is currently being improved and Chris has decided to stay with the current website designer. The first priority of the website is to improve the Lawyer Referral Service, which is where the de­signer's energy is cur­rently focused. In addi­tion, the website front

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page can now be updated in-house, which will al­low the website to be up­dated daily with new in­formation when it be­comes available.

b. Email Update. There were 938 emails sent from the LCBA on Octo­ber 14, 2008, informing members of upcoming events. From the 938 emails, 30.7% of the emails were opened, and out of those opened, 24.2% of the members clicked on a link in the email. This is actually a good to high number of members opening the emails and clicking on the links.

c. Membership Update. There are currently 2,577 attorneys who reside or office in Lake County, of which 932 attorneys are members of the Lake County Bar Association. Chris has created a log of both 1) the areas in which these attorneys practice, and 2) the city in which their offices are located. This information will as­sist the Bar Association in many areas, including the sale of advertising to out­side vendors.

d. LCBA Logo. Chris has met with several graphic designers and is cur­rently soliciting artwork and logos from them in exchange for publicity.

e. Office Equipment. The LCBA is in need of up­dated office equipment. Chris has asked tha t this

December 2008

discussion be tabled until the end of the calender year so that we will have a better idea as to where the bar stands fiscally.

f. The Docket. Chris inves­tigated the cost of pub­lishing The Docket, and discovered that we have been paying almost $2.00 more per issue than the average rate for publica­tion of the magazine. This cost does not neces­sarily reflect the "very best" service and quality. In addition, Chris ob­tained bids from graphic designers, and it appears that we are paying a low cost for the same. How­ever, this low cost is in direct correIa tion wi th the quality of service. Therefore, Chris has rec­ommended tha t we switch both printers and graphic designers effec­tive with the January, 2009, issue. A motion was duly made, sec­onded, carried and it was resolved that the LCBA would change printers and graphic designers effective with the Janu­ary, 2009, issue.

12. Board adjourned to Execu­tive Session.

There being no additional business, a motion was made, seconded, carried and the meet­ing was adjourned.

December 2008 The Docket Page 29

Civil Trial and Appeals Committee

Thank you to those who attended the October 30th meeting. We had

many special guests, including Justices Ann Jorgensen and Mary Schostok from the Second District Appellate Court, and Judges Mullen, Hoffman, and Schippers from the Nineteenth Judicial Circuit Court, along with a standing-room-only crowd.

1. Rick Kessler Rick began a discussion (continued by Peter Berk, see further below) regarding Federal Rules of Evidence (FRE) Rule 502 on e­discovery and the disclosure of privileged rna terials. Please refer to the short arti­cle at the end of these min­utes.

2. Case of first impression in illinois - Ruffin ex rei. Sanders v. Boler, 2008 WL 2550672 -Med-malpractice case in­

volving injury to the bra­chial plexus nerve resulting in Erb's palsy. At issue was whether expert testimony presented on behalf of the defendants by Dr. Grimm, a professor of biomedical en­gineering, who was not a medical doctor, could be used to refute the failure to follow the proper standard of care by a physician and whether

October 30, 2008, Minutes

by Richard N. Kessler

such person qualified under the Frye test. The novelty of the case was that the issue tested the long established rule in Dolan v. Gal/uzo, 77 Ill. 2d 279 (1979), that "to testify as an expert on the standard of care in a given school of medicine, the wit­ness must be licensed therein." The First District Appellate Court held that since "Dr. Grimm's testi­mony was offered to show that the injury . .. was the result of a cause other than" the defendant doctor's negli­gence, Dr. Grimm's testi­mony, if sufficient under Frye, could stand. The court further found that Dr. Grimm's research had gained sufficient promi­nence that her model, upon which her testimony was based, satisfied the Frye test.

3. Jones v. Ral/os, 2008 WL 2550728 (Ill. App. 1st Dist. June 25, 2008) - Issue on ad­missibility of a physician witness's failure to pass the board-certification examina­tions. The Appellate Court recently ruled that there was no abuse of discretion In

permitting plaintiff's coun­sel to question a doctor about twice flunking exami­nations for certifications as an internist two decades

ago. There are five illinois Appellate Court opinions regarding this issue. An­swer: "definite maybe."

4. Peter Berk Peter spoke about FRE 502-please refer to the short arti­cle at the end of these min­utes for a recap. Justice Schostok indicated that there could be a call for a rule change through the Admin­istrative Office of the illinois Courts-she will obtain in­forma tion for our next com­mittee meeting. Judge Mul­len will review the provi­sions of FRE 502 wi th other judges of the Nineteenth Ju­dicial Circui t and inquire whether 502 can be incorpo­rated into the form 218 Or­der.

5. Judge Brady Judge Brady discussed sev­eral recent cases, which were also distributed to the mem­bers via e-mail. • Mikolajczyk v. Ford Motor

Co., 2008 WL 4603565 (Ill. S.Ct. Docket # 104983): Ushering in a major change to product liabil­ity cases.

• Fronabarger v. Burns, 2008 WL 4446016 (Ill. App. 5th Dist. 2008) (Case No. 5-07-0433): A personal in­jury photo case in which

Page 30

the defendant was al­lowed to show photos of an accident without ex­pert testimony.

6. New Business: a. New member - Kevin

Smith - Welcome b. Justice Schostok: The

Second District Appel­la te Court is hearing more oral arguments,

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and heard nine in Octo­ber.

c. Brown Bag E-Discovery, February 24, 2009, providing 1 hour of CLE credit: Computer Fo­rensics 101: During this session we will discuss the basic strategies and protocol behind a com­puter forensic investiga­tion. We will help you

December 2008

better understand how to prepare, what to look for and what questions to ask a t the start of an in­vestigation.

d. The annual CTA Seminar and Golf Outing, with 3 hours of CLE credit, will again be at the Biltmore Cc, this time the week after Memorial Day, May 28,2009. 0

Federal Rule of Evidence 502 and Privi leged Materials

by Matthew R. Rechner, Peter T. Berk & Thomas P. Hett of McDonald Hopkins LLC

Recently, Rule 502 was added to the Federal Rules of Evidence. The

Rule seeks to harmonize the law of privilege waiver in federal courts and also provide litigants with additional options to limit the costs associated with the re­view of voluminous electroni­cally stored information or "ESI." Rule 502 thus directly impacts how corporations and individual litigants should act both before and during a law­suit.

Given that it is a new rule, it is unclear how federal and state courts will interpret the rule and apply it to the variety of situations that arise in litigation. While a move by the State courts to institute a similar rule, either through a change to the Supreme Court Rules or a local

rule in each judicial district, would provide greater uniform­ity, attorneys should be proac­tive in utilizing the benefits of Rule 502 when appropriate. In that vein, parties in State court may consider seeking the entry of an order by the court (either agreed or through a motion) in­corpora ting the beneficial provi­sions of Rule 502 and making them explicitly applicable to the State court case.

History and Background

Before the enactment of Rule 502, producing documents dur­ing the discovery phase of liti­gation was an expensive en­deavor. Significant attorneys' fees were incurred to review each and every page of a pro­spective document production

for responsiveness as well as privilege. The risks associated with the production of a privi­leged document could range from waiver of that communica­tion to the waiver of privilege protection of every document dealing with the same subject matter. These risks were com­pounded by the uncertainty among the courts regarding what constituted waiver - inten­tional production, careless pro­duction, or any production re­gardless of fault. The advent of e-discovery only exacerba ted costs and risk by, at times, expo­nentially increasing the amount of information potentially re­sponsive to discovery requests.

Rule 502 and What It Says

Rule 502 contains four main

December 2008

provisions. First, the Rule pro­vides tha t "subject rna tter waiver" occurs only in the case of an intentional disclosure, and only if, in fairness, the non­disclosed communications or information should be consid­ered with that which was dis­closed. Thus, the Rule specifi­cally rejects subject matter waiver in the case of inad ver­tent disclosure. Under Rule 502, there is no subject matter waiver unless the disclosure was inten­tional and fairness dicta tes tha t other undisclosed communica­tions be produced. Subject mat­ter waiver will only occur if the undisclosed document(s) must, in fairness, be considered with the intentionally disclosed document (e.g. to prevent a mis­leading disclosure).

Second, Rule 502 makes clear that an inadvertent disclo­sure will not waive privilege or work product protection as long as the producing party took "reasonable steps to prevent disclosure" and "promptly took reasonable steps to rectify the error." Reasonable steps to pre­vent disclosure should be ad­dressed in a company's litiga­tion readiness plan and imple­mented by outside counsel at the onset of litigation. The notes to Rule 502 indicate that "reasonable steps to rectify the error" only need to be taken if the litigant has reason to believe privileged information may have been produced.

Third, Rule 502 outlines the consequences of disclosures in state and federal proceedings, as follows: (1) the Rule is bind­ing on state courts and federal

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court-mandated arbitrations proceedings where the initial disclosure occurs in a federal proceeding; (2) where the initial disclosure occurs in state court, and the waiver issue is being decided in a subsequent federal proceeding, the decision is gov­erned either by Rule 502 or state law, whichever is most protec­tive against waiver; and (3) the Rule has no effect where the ini­tial disclosure occurs in state court and the waiver issue is being decided in a subsequent sta te proceeding.

Fourth, Rule 502 increases the effectiveness of "clawback" and "quickpeek" agreements (agreements designed to de­crease costs of review while protecting privileged communi­cations against claims of waiver) by making such agree­ments binding on third parties and subsequent matters. How­ever, these clawback or quick­peek agreements must be incor­porated into a court order in or­der to be binding on third­parties. Without the court order, such agreements may be found to be ineffective against claims of waiver by subsequent liti­gants who were not parties to the original agreement.

What You Can Do To Benefit

Application of Rule 502 re­quires that a litigant show the court that the party took "reasonable steps to prevent disclosure." The Rule does not explicitly define what consti­tutes "reasonable steps to pre­vent disclosure. " However, companies can prepare ahead of

Page 31

time by creating a litigation readiness plan, working closely with outside counsel to develop cost-effective means for gather­ing potentially responsive docu­ments and culling the privileged documents using automated or semi-automated filters . Addi­tionally, proper data retention and destruction policies are a must. Implementation and con­sistent enforcement of these poliCies will help organize your organization's documents and make required privilege reviews less costly and decrease the risk of accidental disclosures.

Lastly, preventative meas­ures can be taken even after the commencement of a lawsuit. Your company should confirm its attorneys possess a thorough understanding of electronic dis­covery best practices. They should know how to deploy available software to effectively and efficiently conduct privilege reviews through the millions of pages typical in today's litiga­tion. Additionally, clawback and quickpeek agreements offer excellent safeguards against the increased risk of inadvertent disclosures and help to reduce costs at the same time. Just don' t forget to have the court sign off on the agreement first.

For more information con­cerning how you can avail your­self of the benefits associated with the new Federal Rule of Evidence, please contact Rich­ard Kessler at rkessler@mcdon aldhopkins.com or Peter Berk at pberk@mcdonaldhopkins.com of McDonald Hopkins LLC. 0

Page 32 The Docket December 2008

LC ~

BAR BULLETIN BOARD

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Virtual Tour www.~properties.com (847) 680-4740

OFFICE SUITES FOR RENT­DOWNTOWN WAUKEGAN-Walking distance to Lake County Courthouse. 2 suites completely renovated each 1,200+S.F. with 3 offices, conference room, reception area, kitchen, 2 bathrooms, cen­tral heat and air, high speed internet, 1st floor handicap accessible, parking in both front and back. Call (847) 548-5723.

2 VACATION CONDOS AVAILABLE­Orlando, Florida-3 bedrooms-3 miles to Sea World, Disney, etc. $1200 a week. Williamsburgh, Virginia-4 bedrooms­$1250 a week. Call Rick Scott at (847) 234-6680.

HISTORIC BUILDING OFFICE SPACE ­The law office space currently occupied by Roach, Johnston & Thut at 516 N. Milwau­kee Avenue in Libertyville is available sometime around Fall 2008. The space in­cludes four premium quality private offices, conference room, kitchen, storage, and ad­ministrative area. It includes 2,188 square feet just off Milwaukee A venue in a re­stored vintage building in Libertyville's Victorian downtown. Seeking a lead law­yer or law firm as a tenant, one or more at­torneys are available as sub-tenants. Con­tact Mary at (847) 549-0600 for appointment to view.

DOWNTOWN WAUKEGAN - Across from Courthouse, 275-1800 square feet. Janitorial provided. Well maintained. Space available. 33 N. County & 325 Wash­ington. Please call Ron Pollack at (847) 482-0952.

WAUKEGAN-Professional office space available for immediate lease. Upper level office space across from main courthouse. Individual offices at the prime location in­clude utilities. Rent per office is $550.00 per month. Please call (847) 662-4321 for fur­ther information.

ATTORNEYS' TITLE

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Contact us for more information.

Philip Krawiec, Business Development Representative Dim:t Phone: 312.752.1219 J E-mail: plaawicc@atgf.com

Offices in: Champaign I OUago Loop I 0Uag0 North Side I libertyoille Lombard I Mt. Prospect I North lliYenide I O. Lawn Schaumburg I Wheaton I BeDeville I Madison, W ...

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Please call (847) 244-3143 to confirm date, time and location of event before you attend.

12/11 Brown Bag Seminar- Workplace Harassment 12:15 p.m. C201

12/17 Criminal Law Committee Meeting 12:00 p.m. LCBA Office

12/18 Civil Trial & Appeals Committee Meeting 5:00 p.m. McCormick's

12/18 Board of Directors Meeting 12:00 p.m. LCBA Office

12/19 Jay Ukena Swearing-In Ceremony Lake County Courthouse

12/24-1/2 LCBA Office Closed (Holiday Break)

1/7 Real Estate Committee Meeting 5:00p.m. In-Laws

1/8 Brown Bag Seminar 12:00 p.m. C201

1/l3 Wills, Trusts & Probate Committee Meeting 12:00 p.m. C307

1/14 Legal Aid Committee Meeting 12:00 p.m. Prairie State Legal Offices

1/15 Board of Directors Meeting 12:00 p.m. LCBA Office

1/19 LCBA Office Closed

1/21 Criminal Law Committee Meeting 12:00 p.m. LCBA Office

1/21 Family Law Committee Meeting 12:00 p.m. C103

If you are a C01ll11littee Chair and wisTI to chal1ge a meetil1g date or time, please contact the LCBA Office at (847) 244-3143.

LAKE COUNTY BAR ASSOCIATION 7 N. County Street Waukegan, IL 60085 Retum Service Requested

*******·*** .... ··ECRLOT**C-007 Hon. Raymond J. McKoski Nineteenth Judicial Circuit 18 N County St Waukegan. IL 60085-4304

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Zip Code 60031 Pennit No. 356