New Rule 243 Allows Jurors to Ask Questions of Witnesses in Civil

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New Rule 243 Allows Jurors to Ask Questions of Witnesses in Civil
The Journal of the DuPage County Bar Association
New Rule 243
Allows Jurors to
Ask Questions
of Witnesses in
Civil Cases
page 18
INSIDE:
22
26
Volume 24 Issue 9
June 2012
Trial: The Final Countdown
Preparing for and Deposing
Expert Witnesses in Illinois
32
Expectation of Privacy in
A Digital Age
38
SNFs Must Conduct PreAdmission Criminal History
Background Checks
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Table of Contents
From the Editor 3
by Eric R. Waltmire
President’s Message 5
by Colleen M. McLaughlin
News & Events 9
Coming in the Fall: The President’s Trip To NY! 10
Illinois Bar Foundation Honors
Irene Bahr and James Reichardt 10
Electronic Filing and Document Retrieval
in the Eighteenth Circuit 11
Illinois Adopts “Katrina” Rule to Help Legal System
Respond to Major Disasters 11
Illinois Law Update 12
Where to be in June: DCBA Golf Outing to be Held in
June at Willow Crest 56
www.dcbabrief.org
Volume 24, Issue 9
June 2012
Eric R. Waltmire
Editor-in-Chief
Terrence Benshoof
Associate Editor
John J. Pcolinski, Jr.
News Editor
Sean McCumber
Editor, Profiles
Mark J. Carroll
Editor, Student Articles
Articles 15
New Rule 243 Allows Jurors to Ask Questions
of Witnesses in Civil Cases 18
by Ted A. Donner
Trial: The Final Countdown 22
by Jennifer L. Friedland, Lauryn E. Parks, and James F. McCluskey
Preparing for and Deposing Expert Witnesses in
Illinois: A Practical Primer 26
by E. Angelo Spyratos
Expectation of Privacy in A Digital Age: An Overview
of Employment Law Cases and Statutes Struggling to
Create Precedent as Expectations Evolve 32
by James S. Barber and Karen E. Bettcher
SNFs Must Conduct Pre-Admission Criminal History
Background Checks: “Knowing is Half the Battle”
and Care Planning is the Other Half 38
by Kathleen May-Mazzocco
Features 47
Judicial Profile: The Honorable Robert E. Douglas 48
by Sean McCumber
Legal Aid Update: Legal Aid Annual Report 51
by Brenda Carroll
ISBA Update: Professional Conduct Advisory Opinions 52
by James F. McCluskey
Cover photo ©istockphoto.com/goepaul
Anthony Abear
Erica L. Bertini
Mark J. Carroll
Jonathan P. Crannell
Michael J. Davis
Ted A. Donner
Joseph F. Emmerth IV
Glenn Gaffney
William D. Goren
Jon D. Hoag
Raleigh D. Kalbfleisch
Shawn S. Kasserman
Deborah Klein
Jeffrey J. Kroll
James F. McCluskey
Sean McCumber
Timothy B. Newitt
John J. Pcolinski, Jr.
Melissa M. Piwowar
Arthur W. Rummler
James L. Ryan
David N. Schaffer
Daniel Walker, Jr.
Editorial Board
Jacki Hamler
DCBA Liaison/Advertising
Mary Anne McManus
Desktop Publisher
June 2012
1
From the Editor
Learning Through Questions:
Juror Questioning of Witnesses
By Eric R. Waltmire
“I
never learn anything talking.
I only learn things when I
ask questions.”
- Lou Holtz
This month the Articles section
leads with coverage of new Illinois
Supreme Court Rule 243, which provides that jurors may submit written
questions for witnesses. This is a positive development in increasing the
juror’s understanding of issues presented at trial.
If you think about other instances
where people are learning—such as
in school, at a lecture, at a press conference, at a seminar, etc.—time for
questions from the audience is almost
always provided. This is because to
ask questions is a method of learning.
Consider, a recent upstart education
company, Khan Academy,1 that is
providing educational videos online.
Some teachers have chosen to flip the
school day by having students view
the online video lectures at home
and to do “homework” in class where
the student has access to the teacher
or other students who can answer
questions that might arise in working through the homework.2 This flip
recognizes the learning importance of
being able to have questions answered.
And learning is what juror’s are asked
to do in order to make a decision on
the issues presented to them at trial.
Until the adoption of Rule 243, Illinois had no rule that prohibited juror questioning. A spokesman for the
Illinois Supreme Court was quoted in
2006 saying “There’s no rule prohibiting it.”3 In fact, allowing jurors to
submit questions for witnesses is not a
recent innovation. In the 1907 case of
State v. Kendall,4 the North Carolina
Supreme Court stated, “there is not
only nothing improper in it [allowing jurors to submit questions] when
done in a seemly manner and with
the evident purpose of discovering
the truth, but a juror may, and often
does, ask a very pertinent and helpful
question in furtherance of the investigation.” Jury questioning dates back
to at least the eighteenth century in
England and the nineteenth century
in the United States.5
Proponents of jury questioning cite
the following advantages of allowing
questioning: (1) juror questions promote juror understanding of the evidence; (2) juror questions can signal
to counsel or court that some issues
need to be addressed further; (3) juror questions keep the jury attentive
and engaged; and (4) juror questions
enhances the jury’s confidence in arriving at a verdict.6 Opponents of
the practice assert the following possible disadvantages: (1) jurors might
become advocates instead of natural
fact finders; (2) Questioning might
consume unnecessary court time; (3)
a juror may react adversely when his
or her question is not asked; (4) juror
questions might interfere with trial
strategy and witness control; (5) juror
questioning is inconsistent with the
State’s burden of proof in the criminal
context.7
Courts, such as the Supreme Court
of Vermont, and leading researchers note the feared disadvantages are
not supported by empirical evidence.8
Professors Penrod and Heuer, after
drawing data from over 200 state and
federal trials in 33 states, concluded,
in part: “[1] Jury questioning promotes juror understanding of the facts
and issues . . .[2] Although jurors do
not know the rules of evidence, they
nonetheless ask appropriate questions.
[3] Counsel is not reluctant to object
to inappropriate juror questions. [4]
If counsel objects, and the objection
is sustained, the jury does not draw
inappropriate inferences from unanswered questions. [5] Jurors do not
become advocates rather than neutrals. [6] Jurors do not overemphasize
their own questions and answers at
the expense of other evidence presented during the trial. [7] Juror questions
do not have a prejudicial effect.”9
When juror’s can better understand
the facts and issues presented to them,
they should be better positioned to
From the Editor
Continued on Page 6 »
Eric Waltmire is a registered patent attorney at the Erickson Law Group in
Wheaton, where he handles matters in
the areas of patents, trademarks, intellectual property strategy, brand protection strategy, and anti-counterfeiting
strategy. While handling a range of
patent subject matter, he focuses on the
areas of Internet, computer science, and
electronic technologies. Eric is a member
of the ISBA IP Section Council and has
served as the chairman of the Internet &
Computer Law Subcommittee. Before
joining the Erickson Law Group, he
was a staff attorney for the judges of the
Eighteenth Circuit Court of Illinois.
June 2012
3
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President’s Message
An Extraordinary Trip
By Colleen M. Mclaughlin
T
he DCBA’s trip to Cuba this
March was an extraordinary
experience. A great time was
had by all and, as you will see next
month, we all learned a lot. In next
month’s issue of the Brief, my fellow
travelers and I will share much of
what we learned with you, our impressions and what surprised us the
most. Today, I provide you a preview
of sorts and answer some of the many
questions people have asked me about
the trip.
Having the President’s trip to Cuba
was actually my husband, Rick’s, idea.
I had never had much interest in Cuba
and knew very little about its history.
It just wasn’t on my radar. I studied up
some before we went but the reality
was still very different from my preconceptions. I assumed, wrongly, that
Cuba would be much like the other
Caribbean islands we have visited –
only with a Socialist government (the
Communist party is the only legal
political party in Cuba but, officially,
Cuba is referred to as “Socialist”). Not
even close. Cuba has an entirely different “feel” to it.
For centuries, Cuba was the “jewel” of Spain’s Caribbean empire.
Unlike some of its neighbors, Cuba
was once a thriving nation. Sadly, it
is now a country that is “broke” – not
just monetarily, but in the very literal
sense of the word. Its population is aging and shrinking, its infrastructure is
crumbling, its economy is completely
out of whack, its government can no
longer provide all the social services it
once did at little or no cost and its citizens are disillusioned. Time has stood
still in Cuba and it has a long way to
go to catch up with the rest of the
modern world. It is widely thought
that Communism in Cuba is living
on borrowed time. Even Raul Castro
has said, in a December 2010 speech,
that, “We either rectify things, or we
run out of time to carry on skirting
the abyss [and] we sink.” The prevailing question is whether change will
come quickly enough to save this nation. Personally, having now seen the
potential of this country, I’m hoping
so. But a more detailed description
will have to wait until next month,
now for your questions.
Did you feel safe? Absolutely. The
Cuban people are very friendly. The
crime rate is very low. Many of us
walked around on our own, even at
night. The Malećon seawall, a beautiful ocean walkway where people
strolled and just hung out was directly
across the street from our hotel.
How were your accommodations? The Hotel Naćional was a
magnificent historic hotel. The lobby,
restaurant, and grounds were beautiful. The rooms were dated by our
standards, the wi-fi connection was
spotty at best, the elevators were beyond slow but overall, those were very
minor things we expected. Overall,
the hotel was much more than I anticipated. Rick and I stayed in the
Walt Disney “suite” (which meant it
had 3 barely double beds). Many oldtime celebrities had stayed there in
the 40’s and 50’s and their names and
pictures were all over the place. We
enjoyed nightcaps, cigars and music
every night out on the terrace.
How was the weather? Perfecto.
Are the old cars really everywhere? Yes. However, there is very
little “traffic” in Cuba and no such
thing as “rush hour” as we know it.
I thought with all the old cars there
would be some major pollution issues. But, there is simply not enough
President’s Message
Continued on Page 6 »
Colleen is the 3rd woman to serve as
president of the DCBA in its 134 year
history. Her commitment to the legal
profession is evidenced by her active
involvement and the leadership roles
she has undertaken in the DCBA, the
ISBA and DAWL. Colleen has served
as a member of the DCBA’s Board of
Directors since 1999. She is a past
president of DAWL (1994-95) and
a past chair of the ISBA’s Labor and
Employment Section Council and its
Committee on Law Related Education
to the Public. She is a current member
of the ISBA Assembly and Assembly
Agenda Committee. After serving 16
years as an Illinois Assistant Attorney
General, Colleen started her own
Wheaton law firm in 1996, where she
concentrates her practice on employment
law matters, representing primarily
employees in state and federal court and
before administrative agencies.
June 2012
5
DuP
AG
E
ION
AT
CI
T Y BAR AS
UN
SO
CO
DCBA
Sin
ce 1 879
The DCBA Brief is a publication of the
DuPage County Bar Association
126 South County Farm Road
Wheaton Illinois 60187
(630) 653-7779
Colleen McLaughlin
President
Sharon Knobbe
President-Elect
Patrick B. Hurley
Second Vice President
Lynn C. Cavallo
Third Vice President
Steven M. Ruffalo
Past President
Gerald A. Cassioppi
General Counsel
Bradley Pollock
Assoc. Gen’ l Counsel
John A. Pleviak
Secretary/Treasurer
Arthur W. Rummler
Assistant Treasurer
Leslie Monahan
Executive Director
Angela M. Aliota
Dion U. Davi
Chantelle Porter
James J. Laraia
Timothy P. Martin
Michelle L. Moore
Terence C. Mullen
John J. Pcolinski, Jr.
Elizabeth A. Pope
Angel M. Traub
Timothy P. Whelan
Directors
James F. McCluskey
ISBA Liaison
A. John Pankau
Legislative Liaison
6
DCBA Brief
» President’s Message Continued from Page 5
of them, proportionately, to create a
problem. There are 11.2 million people
in Cuba and only about 600,000 cars,
about half of which are owned by the
government. Until recently, it was illegal
for Cubans to own a car that was younger than the revolution. There are some
newer, non-American cars but the old
classics outnumber them significantly.
We actually rode in Fidel’s 1982 Russian
town car, which is now a taxi. Or, at least
that was the story our driver told us.
If there are so few cars, how do
people get around? They walk. When I
think about it, I don’t recall seeing any
obese Cubans – probably because they
walk so much. There are buses, imported
from China, but when the government
bought them they forgot to get a maintenance contract so many are out of commission. It’s a real problem. Their solution is to not only encourage hitchhiking
but, if you are driving a government car
and have room to spare, you must pick
up hitchhikers.
How was the food? Very good, considering our hotel had a huge breakfast
buffet. Cuban ice cream is delectable.
Lobster costs the same as chicken so we
ate a lot of lobster. Rice and beans are
served with every meal and Cubans are
completely insistent when it comes to
their own family’s rice and beans recipe
being “the best.” Restaurants are truly for
the tourists, the locals can’t afford to eat
out. It’s not like there is a lot to choose
from. Keep in mind that there are no
wholesalers in Cuba so menu selection is
also limited. The government owns, like
most everything else, most of the restaurants, but our tour director did a great
job selecting places that offered variety
and there was always live music to accompany our meals. Restaurants are one
of the few enterprises being privatized.
The private restaurants, which were often just rooms in someone’s house, offered the best food and atmosphere. One
of the private restaurants we dubbed the
“Hooter’s of Havana.” Its waitresses wore
little white cowgirl outfits, complete with
hat, and the entertainment was comprised of belly dancers. It was an Italian
themed restaurant where we ate pizza…
go figure!
Did you go to the Tropicana? Yep,
and it was a lot of fun. The costumes
were everything you’d expect. Art Pape
and Rich Guerard dancing in the aisles
with skimpily clad showgirls was a sight
to behold. But, enough said. What went
on in Havana, stays in Havana.
Did you smuggle back any cigars?
I’ll never tell.
Can I have one? NO! □
» From the Editor Continued from Page 3
accurately decide the case—a worthy
goal that juror questioning should enhance. Turn to Ted Donner’s article on
jury questions and new Rule 243 in the
Article Section of this edition for complete coverage of the topic. □
1http://www.khanacademy.org
2Clive Thompson, How Khan Academy Is
Changing the Rules of Education, Wired (August
2011), available at http://www.wired.com/magazine/2011/07/ff_khan/all/1
3 S ee Rob Olmestead, Experiments Let Jurors Ask
Question During Trial, Daily Herald, May 22, 2006.
4 57 S.E. 340, 341 (N.C. 1907)
5 Sarah E. West, Note, The Blindfold on Justice
is Not a Gag: The Case for Allowing Controlled
Questioning of Witnesses by Jurors, 38 Tulsa L.
Rev. 529, 534 (2003) (The Blindfold on Justice).
6
Shari Diamond, Mary Rose, & Beth Murphy,
Jurors’ Unanswered Questions, Court Review at 21
(Spring 2004); Mary Dodge, Should Jurors Ask
Questions in Criminal Cases? A Report Submitted
to the Colorado Supreme Court’s Jury System
Committee (Fall 2002), available at http://www.
courts.state.co.us/supct/committees/ juryreformdocs/dodgereport.pdf.
7 Id.; State v. Doleszny, 844 A.2d 773, 783 (Vt. 2004);
Hon. N. Randy Smith, Why I do Not Let Jurors
Ask Questions in Trials, 40 Idaho L. Rev. 553, 556
(2004) (Why I do Not Let Jurors Ask Questions).
8 State v. Doleszny, 844 A.2d 773, 779 (Vt. 2004)
9 S. Penrod & L. Heuer, Tweaking Commonsense, 3
Psychol. Pub. Pol’y & L. 259, 280 (1997).
The Law Firm of Momkus McCluskey, LLC has served the DuPage County
community for the past twenty years. The firm accepts referrals
and co-counsel relationships in the following areas:
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Business, Corporate and Transactional
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30 North LaSalle Street, Suite 2850 • Chicago, IL 60602-3481 • Tel: 312.345.1955 • Fax: 312.346.8300 • www.momlaw.com
News & Events
Coming in the Fall: The President’s
Trip To NY! 10
Plus:
Illinois Bar Foundation Honors
Irene Bahr and James Reichardt 10
Electronic Filing and Document Retrieval
in the Eighteenth Circuit 11
Illinois Adopts “Katrina” Rule to Help Legal
System Respond to Major Disasters 11
Illinois Law Update 12
Where to be in June: DCBA Golf Outing 56
photo ©istockphoto.com/michellegibson
June 2012
9
Coming in the Fall: The President’s Trip To NY!
By Terrence Benshoof
W
ant to wake up in a city
that doesn’t sleep? Well,
then, you’ll want to join
in the President’s trip to the Big Apple, brought to you by our incoming President, Sharon Mulyk for the
extended weekend of October 4th to
October 7th of this year. The preliminary schedule includes a stay at a top
hotel, the Doubletree Metropolitan,
just a couple blocks off Park Avenue
on Lexington.
Bright and early on Friday morning, the group will head for the NBC
Today Show, and tell the world that
the DCBA is in town. Then it’s off to
breakfast, followed by a CLE presen-
tation, with Judge Equi leading with
the topic of “Foundations and Objections,” backed up by a presentation
on “Tablets, Smartphones and the
Cloud…Oh My”!
Lunch and the afternoon will be
on your own, and then the group will
dine at Del Frisco’s Grille. Del Frisco’s
is located in Rockefeller Center, near
the Radio City Music Hall, and features an open fire, and a 700 bottle
wine wall.
Sleep in on Saturday morning.
Then it’s the matinee performance of
“The Book of Mormon”, with tickets
at $200 per person. If you are interested in attending The Book of Mor-
mon performance, please contact the
Sue Mackovec at the Bar Center soon
as there are a limited number of tickets available. Saturday night, the fine
dining (Gramercy Tavern; Sardi’s; the
Grand Central Oyster Bar? So many
choices!) lights, clubs, and shows of
Manhattan beckon once again, and
it’s party into the wee hours before
Sunday comes to break the spell, head
home, and back to Monday morning
at the courthouse! More details will be announced in
the coming months. Register online
at dcba.org or call Sue Mackovec at
630.653.7779 to purchase tickets. □
Illinois Adopts “Katrina” Rule to Help Legal System
Respond to Major Disasters
By Jonathon Hoag
T
he Illinois Supreme Court has
adopted a new rule, rule 718,
to facilitate the delivery of legal services in an emergency resulting
from a major disaster. The rule was
first developed by the American Bar
Association in response to hurricane
Katrina, but the rule is intended to
address both natural and man-made
disasters. In the event of an Illinois
emergency or disaster, as determined
10
DCBA Brief
by the Illinois Supreme Court, the
new rule will allow attorneys licensed
in another state to provide pro bono
services to residents of Illinois. In addition, the rule will allow attorneys
licensed outside of Illinois to provide
pro bono legal services to residents
displaced to Illinois because of a disaster.
The hope is that this rule will never
be needed, but it was adopted to allow
the state’s legal system to adequately
respond to a disaster occurring in Illinois or elsewhere. The pro bono
services permitted by this rule must
be assigned and supervised through
an established not-for-profit bar association, pro bono program or legal
services program or through such
organization(s) specifically designated
by the Court. The new rule became
effective April 4, 2012. □
Illinois Bar Foundation Honors
Irene Bahr and James Reichardt
By Brenda Carroll
O
n March 22, 2012, the
Board of Directors and Fellows Officers of the Illinois
Bar Foundation gathered with the
DuPage County Fellows Chapter to
honor Irene Bahr and James Reichardt and award them with the DuPage County Beacon of the Profession
Honorary Fellows Award.
DCBA Third Vice-President,
Lynn Cavallo introduced Irene and
spotlighted her leadership and the
remarkable highpoints of her career.
Jim Reichardt was introduced by his
friend, ISBA Assembly member and
former DCBA Director, Thomas F.
Sullivan Jr. who praised Jim’s contributions to the legal profession while
also celebrating his humor.
The well attended event was held at
Maggiano’s Little Italy in Naperville.
In addition to the recipients’ family members, many DuPage County
Fellows, DCBA members and Judges
from the 18th Judicial Circuit joined
the awardees. ISBA officials who were
present included President John Locallo, Third Vice-President Rick Felice, Treasurer Karen Enright, and
ISBA Board Members Umberto
Davi, Vince Cornelius, Honorable
Russ Hartigan, Jim McCluskey and
Lisa Nyuli.
In attendance from the Illinois
Bar Foundation were President
George Mahoney, Secretary Shawn
K a s s e rm a n ,
as well as Tim
Kelly, Secretary and Ed
Burt, ViceChair of Fellows Officers
along
with
IBF Directors,
Chris
Ory
and the Hon(LtoR): : Hon. Thomas Else, James Reichardt, Irene
orable Tom Else. □ Bahr, Edward Burt
(LtoR): Edward Burt,
George F. Mahoney,
III, Irene Bahr
Electronic Filing and Document Retrieval
in the Eighteenth Circuit
C
ircuit Court Clerk Chris
Kachiroubas urges all DuPage
practitioners to avail themselves
of the Clerk Case History Restricted
Information System (CHRIS) for electronic filing of all court documents and
retrieval of court documents. Using the
CHRIS system attorneys can file any
court document electronically through
three vendors, Lexis Nexis, Wiznet and
I-2 File. Documents are accepted or
denied on the same day they are filed
up to 4:30 pm. Using the I-2 File vendor, copies, including certified copies,
of any court document can be received
electronically.
When efiling, counsel must sure to
follow 18th Circuit’s local rules on efiling. The local rules set forth which cases
qualify for e-filing and what steps are
necessary to use e-filing in a particular
case.
To enroll in the CHRIS system email your name, firm name, address,
telephone number and DuPage County
Attorney Number to [email protected] Then you will receive your
ID, password and instructions on the
electronic filing and document retrieval
system. □
June 2012
11
Illinois Law Update
Family Law & Practice
Child Support
In re Marriage of Kolessar, 2012 IL
App (1st) 102448 (January 17, 2012).
In Kolessar, the ex-wife appealed the
circuit court’s decision that she was
not entitled to interest on child support arrearages and that the ex-husband’s actions were not willful. The
Appellate Court held that the ex-wife
was entitled to interest on the exhusband’s child support arrearages,
and that the ex-husband’s unilateral
reduction of his child support obligation was not willful.
Upon entry of the divorce judgment, the ex-husband was ordered to
pay the ex-wife $2,000 in child support each month. The ex-husband
filed a petition to modify his child
support obligation and, while the petition was pending, the ex-husband
unilaterally modified his support payment. The parties entered an agreed
order with regard to the first petition
to modify, but the order was silent as
to arrearages and interest to be paid
on the arrearage. The ex-husband
later filed a second petition to modify
support, and while the petition was
pending, he again unilaterally modified the amount of his support payment. The ex-wife filed a petition for
rule to show cause and, after hearing, the ex-wife contended that: (1)
the trial court erred in denying her
request for statutory interest on pastdue court-ordered support due by the
ex-husband; (2) the trial court erred
in finding that the ex-husband’s first
12
DCBA Brief
unilateral modification of his support
obligation was not willful or contumacious; and (3) the trial court erred
in failing to find that the ex-husband’s
second unilateral modification of support was without cause or justification. The Appellate Court reversed
the court’s determination as to statutory interest but affirmed the court’s
findings regarding the ex-husband’s
unilateral modifications.
The Appellate Court held that even
though the ex-wife entered an agreed
order that was silent as to child support arrearages and interest on the arrearages, she did not explicitly waive
her right under the IMDMA to interest on the amount of the ex-husband’s
child support arrearages, and thus she
was entitled to interest on the arrearage. With regard to the unilateral
modification of child support, the
Court held that a mere absence of
compliance with child support obligations is not sufficient to find the violating party in contempt, unless the
evidence shows the failure to comply
was willful and contumacious. The
Court found that the ex-husband’s
unilateral reduction was not willful
because at the time of modification,
one of the two children had reached
the age of majority, the ex-wife had
remarried, and the ex-husband began
working at a new job with a reduced
salary.
Adoption
In re Marriage of Mancine, 2012 IL
App (1st) 111138 (February 2, 2012).
On appeal, the Court affirmed the
lower court’s dismissal due to the exhusband’s lack of standing.
Prior to the parties beginning a
relationship, the wife had begun the
process of adopting a child. Because
she had already started the process
of adopting a child as a single parent, upon meeting the husband, the
parties were advised by the adoption
agent to finish the process as a single
adoption, but to then have the husband adopt the child as a stepparent
after the parties’ marriage. The parties
had begun the stepparent screening
for the adoption process, but a petition for adoption was never filed.
The issue on appeal was whether a
non-biological step-father has standing to seek custody of a child he intended to adopt but never formally
adopted. The Court held that Illinois
has not adopted the “equitable parent”
doctrine and that the step-father had
no standing as a parent to seek custody under the IMDMA, the Illinois
Parentage Act or the Illinois Parentage
Act of 1984, especially since the child
was in the custody of the mother, the
only legal parent of the child. The
Court denied the step-father’s arguments of equitable estoppel and equitable adoption because the step-father
was aware at all times that he was not
the biological father of the child and
that formal adoption was necessary,
and because Illinois does not recognize equitable adoption.
Removal
Shinall v. Carter, 2012 IL App (3d)
110302 (January 5, 2012). In Shi-
nall, the mother filed a petition for
paternity and for leave to remove the
child from Illinois to Colorado. The
trial court awarded sole custody to the
mother and granted leave for removal.
On appeal, the Court held that there
was evidence to award sole custody to
the mother, but there was no evidence
to support the trial court’s finding
that removal was proper.
The parties had lived together but
never married. While living together,
the parties had a child together. The
mother also had a child from another
marriage. Within ten months of the
relationship ending, the mother married a man in the Air Force who was
stationed in Colorado. While the petition for removal was pending, the
mother remained in Illinois, and her
husband went to Colorado. As part of
her petition for removal, the mother
alleged that the child’s quality of life
would increase because the mother
would become a stay-at-home mother
in Colorado.
The Court held that it was proper to award the mother sole custody
because the mother was the primary
caretaker. The record indicated that
the parties did not have the necessary
level of respect for each other to cooperate in co-parenting, as the parties made disparaging remarks against
each other in front of the child, and at
one point, there was an order of protection against the father.
Upon consideration of the Eckert
factors, the Court held that evidence
did not support removal because there
was no evidence presented that having a stay-at-home mother was an
improvement over the child’s current
situation of being able to see both
parents on a regular basis and being
in daycare with her paternal grandparents twice per week. Evidence that the
mother wanted to live with her new
husband did not support a finding
that the removal was proper because
there was evidence that the child was
strongly bonded with her father and
his family, that the father exercised his
visitation with the child, and that the
mother and her husband never lived
together as husband and wife. Additionally, because of the father’s in-
come, he could not reasonably travel
to and from Colorado to visit with
the child, and a reasonable visitation
schedule could not be maintained.
In re Marriage of D.T.W., 2011
IL App (1st) 111225 (December 30,
2011). The mother appealed from the
order of the circuit court granting father sole custody of the children and
June 2012
13
LRS Posts Totals
For March, 2012
T
he Lawyer Referral and Mediation
Service provides referrals to
participating attorneys and serves
the community by putting people in
contact with a local attorney. For more
information or to join the LRS, contact the
Bar Center at (630) 653-7779 or visit www.
dcba.org. Please refer prospective clients to
(630) 653-9109. The Lawyer Referral &
Mediation Service received a total of 1012
referrals (498 by telephone, 0 walk-in &
514 by Internet) for the month of March. □
Administrative
1
Appeals
2
Bankruptcy
Business Law
9
Civil Rights
0
Collection
42
Consumer Protection
4
Contract Law
1
Criminal
Elder Law
140
3
Employment Law
25
Estate Law
23
Family
14
16
107
Federal Court
0
Government Benefits
3
Health Care Law
0
Immigration
1
Insurance
6
Intellectual Property
6
Mediation
4
Mental Health
0
Military Law
0
Personal Injury
24
Real Estate
77
School Law
6
Social Security
2
Tax Law
4
Worker’s Compensation
4
DCBA Brief
allowing for removal. The Appellate
Court affirmed the trial court’s decision.
During the divorce proceedings,
both parties filed a petition for sole
custody of the minor children. The
divorce petition was filed in Illinois.
Throughout the divorce proceeding,
the father lived in Florida because
he was a member of the Miami Heat
Basketball Team. The mother moved
the children from Florida to Illinois
during the divorce proceeding. On
appeal, the mother argued that Illinois should not have had jurisdiction
of this matter. However, the parties
adjudicated their rights before the Illinois court to a final judgment without
objection to the court’s right to hear
the cause.
The Court found that both parties had strong and loving relationships with the children. However, the
Court held that awarding the father
sole custody was proper because the
father was willing to encourage a close
and continuing relationship between
the children and their mother and the
mother was not willing to encourage
a relationship between the father and
children. For example, during the
pendency of the case, the mother tried
to alienate the children from their father by stating that the children were
sick at father’s scheduled parenting
time, and on certain occasions, she
refused to make the children available
to their father.
In this case, the Court found that
the initial disruption caused by the
move from Illinois would be outweighed by the long-term benefits of
the children moving to Florida. The
children would now be with their
father and extended family without
the stress they had experienced while
traveling to be with their father. Also,
while the children lived in Illinois,
they had almost no contact with their
father. When the children were in
Miami, the father demonstrated that
he was able to spend more time with
the children. Evidence was presented
that the father’s motive to move the
children was well intentioned and
that the mother’s attempts to alienate
the children from their father would
be thwarted by the removal. Evidence
was presented that a reasonable visitation schedule could be maintained
with the mother traveling to Florida,
and that the mother’s visitation would
not be thwarted by the father. Therefore, the Court found that removal
was in the best interest of the minor
children. □
Family Law & Practice updates by Victoria
C. Kelly of Grunyk & Associates, P.C.
Michael R. Sitrick of Best, Vanderlaan
& Harrington is the Illinois Law Update
Editor. Please send your law updates to
Michael at [email protected]
DCBA Welcomes New Members
The DCBA welcomes the following members that have recently
joined the DCBA: Kevin P. Bolger of Kevin P. Bolger & Associates;
Heather R. Darsie of the Law Office of Richard C. Claahse; Amanda
J. Hamilton of Konicek & Dillon, P.C.; Kelly Hejlik of Mulherin,
Rehfeldt & Varchetto; Robert Wilder of Law Office of Robert
Wilder; Kimberly Pate Godden of Superior Air Ground Ambulance,
Inc; John Prosia of First Midwest Bank; Caitlin E. Branisel; Edmund
T. Fleming; Nancy Dinse Hovde & Tufo; Carleton W. Yoder; Sheryl
S. Spomer; Thomas J. Fitzpatrick, V; Leanne M. Gosnell; Megan E.
Heflin; and Spencer G. Langford.
Articles
New Rule 243 Allows Jurors to Ask
Questions of Witnesses in Civil Cases 18
by Ted A. Donner
Plus:
Trial: The Final Countdown 22
by Jennifer L. Friedland, Lauryn E. Parks, and James F. McCluskey
Preparing for and Deposing Expert
Witnesses in Illinois: A Practical Primer 26
by E. Angelo Spyratos
Expectation of Privacy in A Digital Age: An
Overview of Employment Law Cases and
Statutes Struggling to Create Precedent
as Expectations Evolve 32
by James S. Barber and Karen E. Bettcher
SNFs Must Conduct Pre-Admission
Criminal History Background Checks:
“Knowing is Half the Battle” and Care
Planning is the Other Half 38
by Kathleen May-Mazzocco
photo ©istockphoto.com/kasiatock
June 2012
15
Law. And order.
DCBA members get to order
supplies at great savings.
®
The DuPage County Bar Association and Staples Advantage have partnered to bring you
a great cost-saving office supply program. Staples has all the products and services you
need, at great savings. Start enjoying these advantages:
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Contact your local Staples representative, Ivana Stefanovska, at [email protected]
or 630-639-3042. Learn more by visiting staplesadvantage.com/dcba
Easy Button is a registered trademark of Staples the Office Superstore, LLC.
18740 04/12
From this month’s
Articles Editor
photo © R EP3.com
Juror Questions, Expert
Deps, Trial Prep, Privacy in a
Digital Age, & Background
Checks at SNFs
By James F. McCluskey
I
have the distinct honor of being
the Articles Editor for the June
2012 issue of the DCBA Brief.
Ted Donner presents an article
on new Illinois Supreme Court Rule
243 that provides the trial court has
discretion to allow jurors to submit
questions for witness in civil cases.
The rule set forth procedures for the
timing and allowance of juror questions. Ted reviews the details of the
new rule, the evidence supporting its
adoption, and the potential impact on
trial strategy.
A few of my firm’s attorneys are
contributing authors to this month’s
issue. My partner Angelo Spyratos
has presented an excellent primer on
preparing for and taking the depositions of expert witnesses in Illinois.
The article provides practical tips
and reviews issues that should be addressed before and during an expert
deposition. Also, two of our firm’s associates, Jennifer L. Friedland and
Lauryn E. Parks, and I present an article concerning some of steps that are
necessary for preparing a case for trial.
The article provides a timeline along
with a list of important issues that
should be addressed and documents
that should be prepared before trial
begins. It is our hope that these articles will provide the practitioner with
a practical “how-to” guide to handling
these aspects of the trial process.
Two additional, finely written ar-
ticles are part of this month’s DCBA
Brief. James S. Barber and Karen E.
Bettcher of Clausen Miller, PC have
provided a timely article entitled, “Expectation of Privacy in a Digital Age:
An Overview of Employment Law
Cases and Statutes Struggling to Create Precedent as Expectations Evolve.”
The article addresses the legal implications, for the employees and employers, of an employee’s use of an employer’s computer equipment for private personal communication. Finally,
the alarming issue of sexual assault
within Illinois skilled nursing facilities
is addressed by the article submitted
by Kathleen May-Mazzocco, an attorney at Huck & Brisske, LLC. Ms.
May-Mazzocco discusses this prevalent but under-reported crime, and
offers solutions to protect our state’s
vulnerable nursing facility residents.
Thank you to all our contributors
for these informative articles.
Have a great summer! □
James F. McCluskey, a principal of
Momkus McCluskey LLC, handles
a wide range of litigation. His areas
of expertise incorporate 30 years of
experience in contract, shareholder
disputes, real estate, partnership
dissolution, and professional liability
litigation. He is the 18th Circuit’s
Governor of the Illinois State Bar
Association and Past President of the
DCBA.
Articles from
Lawyers & Paralegals
The articles published in this magazine are generally contributed by
lawyers and paralegals who are
members of the DCBA. If you are
interested in submitting an article
to be considered for publication in
the DCBA Brief, please contact the
magazine’s Editor, Eric Waltmire,
at [email protected] Our publication guidelines for author submissions appear at dcbabrief.org/
submissions.html. Practicing attorneys whose articles are selected
for publication in the DCBA Brief
are qualified to receive CLE credit
under the applicable Illinois rules.
Student Articles
The DCBA Brief has a long standing commitment to providing a
forum for law students in the Chicago metropolitan area. If you are
a law student who attends one of
these schools or otherwise has an
interest in the practice of law in
DuPage County, you can join the
DCBA for no charge and are then
eligible to contribute articles to
be considered for publication. If
you have interest in submitting a
student article, please contact our
Student Articles Editor, Mark Carroll at [email protected]
June 2012
17
New Rule 243 Allows Jurors to Ask
Questions of Witnesses in Civil Cases
By Ted A. Donner
E
ffective July 1, 2012, Illinois law allows judges in civil cases to take
questions from the jurors to be asked of witnesses during trial. Prior to
the enactment of new Illinois Supreme Court Rule 243, the practice
was already being allowed in a majority of the states as well as federal courts,
and had been used in a number of state court proceedings in Illinois (usually
in cases in which the parties agreed to its use). The new rule, though, both
provides for specific practices to be followed in such cases and, as a practical
matter, brings a unique innovation to the fore which, previously, did not warrant a great deal of attention in Illinois.
Rule 243’s Requirements. Rule 243 specifically allows
that written questions for witnesses may be submitted by
jurors to the court for consideration. The Rule provides
that:
(a) Questions Permitted. The court may permit jurors in civil cases to submit to the court written questions directed to witnesses.
(b) Procedure. Following the conclusion of questioning by counsel, the court shall determine whether
the jury will be afforded the opportunity to question
the witness. Regarding each witness for whom the
court determines questions by jurors are appropriate,
the jury shall be asked to submit any question they
have for the witness in writing. No discussion regard18
DCBA Brief
ing the questions shall be allowed between jurors at
this time; neither shall jurors be limited to posing a
single question nor shall jurors be required to submit
questions. The bailiff will then collect any questions
and present the questions to the judge. Questions
will be marked as exhibits and made a part of the
record.
(c) Objections. Out of the presence of the jury,
the judge will read the question to all counsel, allow
counsel to see the written question, and give counsel
an opportunity to object to the question. If any objections are made, the court will rule upon them at
that time and the question will be either admitted,
modified, or excluded accordingly.
throughout the United States, there have been a number of
(d) Questioning of the Witness. The court shall instudies regarding the merits of the practice. As Kathy Kellstruct the witness to answer only the question preerman summarized some of those studies, “[One group in
sented, and not exceed the scope of the question. The
1994] conducted a national field experiment to explore the
court will ask each question; the court will then proeffects of juror submitted questions for witnesses. Their revide all counsel with an opportunity to ask follow-up
search compared 80 cases in 33 states where jurors were
questions limited to the scope of the new testimony.
allowed to submit questions for witnesses to another 80
(e) Admonishment to Jurors. At times before or
cases where jurors were not permitted to do so. Jurors did
during the trial that it deems appropriate, the court
not ask inappropriate questions,
shall advise the jurors that they
become advocates, or become ofshall not concern themselves
Ted A. Donner is
fended or embarrassed by objecwith the reason for the exclusion
an AV-rated attortions. Jurors who were permitted
or modification of any question
ney with Donner
to submit questions felt they were
submitted and that such mea& Company Law
better informed.”5
sures are taken by the court in
Offices LLC and
In the course of the more locally
accordance with the rules of evian adjunct profesbased Seventh Circuit Jury Project,
dence that govern the case.1
sor with Loyola
another group “examined the efAs explained in the CommitUniversity
Chicago
fects of juror questions for witnesstee’s comments, the rule “gives the
School of Law. He
es across 27 cases with 14 different
trial judge discretion in civil cases
is the author of two
judges.... Jurors submitted questo permit jurors to submit written
national treatises for Thomson-West intions in 20 of the 27 cases. In the
questions to be directed to witnesscluding Jury Selection: Strategy & Science
seven trials where jurors submitted
es a procedure which has been used
and the Attorney’s Practice Guide to
no questions, the judge instructed
in other jurisdictions to improve
jurors they could submit questions
juror comprehension, attention
Negotiation. He was the Editor-in-Chief
only once, before testimony began,
to the proceedings, and satisfacof the DCBA Brief for 2007-08 and
and post-trial 62% of jurors were
tion with jury service.”2 Thus, the
2010-2011 and also served as Associate
not aware they could do so. In the
Committee explains, “[t]he trial
Editor in 2006-07 and 2009-10.
20 trials in which jurors submitted
judge may discuss with the parties’
questions, 10 of the 11 judges asked
attorneys whether the procedure
will be helpful in the case, but the decision whether to use the jury after each witness if there were any questions....”6
the procedure rests entirely with the trial judge. The rule
The Seventh Circuit Jury Project published its final respecifies some of the procedures the trial judge must follow, port in September, 2008.7 The participating judges from
but it leaves other details to the trial judge’s discretion.”3
the Northern District of Illinois included Judge Elaine
Illinois Chief Justice Thomas L. Kilbride has said of the E. Bucklo, Judge Geraldine Soat Brown, Judge David H.
new rule that, by its enactment, Illinois is encouraging a Coar, Judge John W. Darrah, Judge Morton Denlow, Judge
practice which has proven, in other jurisdictions, to be Samuel Der-Yeghiayan, Judge Joan B. Gottschall, Judge
of value to the jurors themselves, encouraging their con- James F. Holderman, Judge Matthew F. Kennelly, Judge
fidence in the system. “This proposal was the subject of Joan Humphrey Lefkow, Judge James B. Moran, Judge
much discussion–both internally by the Illinois Supreme Sidney I. Schenkier, Judge Amy J. St. Eve, and Judge James
Court Rules Committee at several of its meetings and at a
public hearing in May 2011,” he said. “Based on the comKellerman,
www.kkcomcon.com/
ments of those who have used or seen the procedure at tri- 5 Kathy
conlinesjuryresearchupdatebytopic.htm, citing Heuer, L., &
als, such a rule enhances juror engagement, juror comprePenrod, S., Juror notetaking and question asking during trials:
A national field experiment. Law and Human Behavior, 18, pgs.
hension and attention to the proceeding and gives jurors a
121-150 1994).
4
better appreciation for our system of justice.”
6 Id., citing Diamond, S.S., Juror questions at trial: In principle
Studies Regarding Effectiveness of Juror Questionand in fact. New York State Bar Association Journal, 78, pg. 23
(2006) and Krauss, E., The latest in juries: What’s happening
ing of Witnesses. Since juror questioning began to develaround the country that’s of interest to New York lawyers and
op, in recent years, as a more common practice in courts
1
2
3
4
Ill.S.Ct. Rule 243.
Ill.S.Ct. Rule 243 (Comments).
Id.
Illinois Supreme Court Press Release, April 3, 2012.
judges? New York State Bar Association Journal, 78, pgs. 16-20,
22 (2006).
7 http://www.7thcircuitbar.org/associations/1507/files/7th%20
Circuit%20American
%20Jury%20Project%20Final%20Report.pdf (“Jury Project
Final Report”).
June 2012
19
B. Zagel.8 The project was spear-headed by Seventh Circuit Bar Association president, James R. Figliulo, “with the
goal of putting the jury principles articulated by the ABA
American Jury Project into action.”9 Figliulo co-chaired
the commission with Judge James F. Holderman, who has
himself spoken repeatedly in favor of jury questioning of
witnesses during trial.10 Three consultants worked with the
Commission, Professor Shari Diamond of Northwestern
University, Professor Stephen
Landsman of Depaul University
and Dan Wolfe,
of TrialGraphix/
Kroll Ontrack.11
The Commission concluded:
“The procedure of permitting jurors
to
submit
written questions for witnesses during trial had the
intended goal of enhancing juror understanding of
the evidence presented at trial. Jurors in the Seventh
Circuit Project jury trials generally used their questions for that purpose and the vast majority of jurors,
eighty-three percent (83%) reported that the ability
to submit written questions helped their understanding of the facts. Judges and attorneys who participated in trials in which jurors questions were permitted
also responded very favorably to the procedure with
seventy-seven percent (77%) of judges and sixty-five
percent (65%) of attorneys reporting increases in jurors understanding. Moreover, seventy-five percent
(75%) of judges and sixty-six percent (66%) of attorneys saw no reduction in efficiency associated with
permitting juror questions. The Seventh Circuit Jury
project Commission therefore strongly recommends
use of this procedure in future state and federal jury
trials.”12
The studies conducted on whether juror questioning
of witnesses during trial has a positive or negative impact
on the process thus appear to be fairly uniform in their
conclusions. The judges, attorneys and jurors who have
participated in the process have confirmed the experience
was a positive one and that it assisted rather than detracted
from the jury’s ability to fairly decide whatever case was
before it.
Trial Consultants’ Experience With Juror Questioning. A great many trial consultants from around the country also echoed these beliefs when we interviewed them
for this article.
Although some
were quick to
point out that
juror questions
may be a misleading indicator
if relied upon
to get a sense of
what the jury as
a whole is thinking, they repeatedly emphasized
that such questions provide counsel with at least some
understanding of what the issues may be during deliberations. Kathy Kellermann, for example, said that, “My experience is that jurors ask good (relevant, pertinent, helpful) questions. I like that we can ‘see into’ jurors’ minds
by the questions they ask. We learn what the issues are to
jurors. There is only minimal feedback a litigant can obtain
during trial, primarily nonverbal and that is very hard to
read. Questions, on the other hand, tell you what concerns
jurors have, and allow you to address those concerns.”13
Ken Brodha-Bahm, likewise, pointed out that, “Attorneys already know, from oral arguments, the value of being
able to hear and adapt to a judge’s question mid-stream
in the argument. It allows you to know what your decision-maker is thinking, and it allows you to target what
might be their greatest obstacle to siding with your case.
The same principle applies to juries. Knowing what they’re
thinking helps you adapt, and the heart of persuasion is
adaptation.”14
In this context, though, most of the attorneys and consultants we interviewed for this article also emphasized
The studies conducted on whether juror
questioning of witnesses during trial has
a positive or negative impact on the
process thus appear to be fairly uniform
in their conclusions.
8 Id., pg. 8.
9 Id., pg. 9.
10 See Jeffrey J. Kroll, Jurors May Ask Questions in Civil Trial, April
5, 2012 (“Another supporter of Rule 243, Chief Judge James F.
Holderman of the U.S. District Court for the Northern District of
Illinois, explained that he has been using questions from jurors
for more than five years and once the jurors are deliberating, it
appears that fewer questions come out of the jury room.”).
11 Jury Project Final Report, pg. 9.
12 Id., pg. 13.
20
DCBA Brief
13 Interview with Kathy Kellermann of Kellermann Communication
Consulting, Marina del Rey, California (April 10, 2012).
14 Interview with Ken Broda-Brahm of Holland & Hart LLP (April
10, 20 Kellermann Communication Consulting 12). Tracy
Bollinger likewise told us that the practice provides “a rare, and
sometimes painful, glimpse into the developing verdict, but,
it is also an opportunity to reassess strategy. We can observe
the jury as they listen to a witness, but as with all people, it
is the questions we ask, that are so often revealing of our
true thoughts.” Interview with Tracy A. Bollinger, Armstrong
Teasdale LLP, St. Louis Missouri (April 10, 2012).
that it is important to keep things in context and not read
too much into the questions from jurors.15 They are not
necessarily indicative of what the jury as a whole is worried
about. Still, as Richard Gabriel explained, it can be invaluable to hear what questions are posed by particular jurors
because, in the end, it is at least likely that any juror who
elects to ask a question is one who would probably raise
the same question during deliberations. “If you pay attention, the questions will give you some indication of where
the jurors are heading,” Gabriel said, “[a]t the very least,
15 Michael Ford, for example, said that, “my experience has
been that a majority of the questions concern inadmissable
evidence and that judges generally do not provide an
explanation to the jury as to why individual questions may not
be asked. I have also found that lawyers tend to read too much
into the questions being asked. Often a question may come
from a juror who views the case very differently from the rest
of the jury.” Interview with Michael Ford, Trial Consultant in
Frisco, Texas (April 10, 2012). Theresa Zagnoli, a trial consultant
in Chicago, likewise told us that she had just finished a trial in
federal court in Texas when we called, in which the trial judge
invited jurors to ask questions for the first time in his career. “As
usual,” she said, “the lawyers rumbled and grumbled. Also, par
for the course, after the first question was read by the judge
the attorneys could barely contain themselves in anticipation
of what the next question would be, guessing who wrote
what and why.” It is “all good sport,” Zagnoli explained, “but
the main advantage of the process is for the jurors who get
reassurance that their collective comprehension of the issues
matters. Interview with Theresa Zagnoli, Zagnoli, McEvoy
Foley LLC, Chicago, Illinois (April 10, 2012).
if there’s one juror asking a lot of questions, that tells you
something about where the leadership is. People who ask
more questions and are more vocal tend to be more dominant in deliberations. Now, some judges are sensitive to
that and don’t want the jurors to put their names down for
that reason. Still, if someone is vocal enough to bring an
issue up in a question, they’re going to be vocal enough to
bring it up in deliberations. When you get a series of questions from the jury, over time, that can give you a good
sense of where the jury is going.”16
The practice of juror questioning during trial thus poses
both an interesting opportunity and potentially difficult
challenge for trial lawyers in Illinois. Some control is certainly lost in the process (it is bound to be painful to hear
a question from a juror that one was all too glad opposing
counsel didn’t think to ask). But the trade-off is a more
active and involved jury, whose questions are bound to
provide some, albeit limited insight into what matters to
them. Knowing that jurors who are willing to speak up
during trial are likely to speak up during deliberations, attorneys can use juror questions both to help facilitate a
more reasoned verdict and to address what matters to those
jurors during the remainder of the trial and closing argument. □
16 Interview with Richard Gabriel, Decision Analysis, Los Angeles,
California (April 11, 2012).
June 2012
21
Trial: The Final Countdown
By Jennifer L. Friedland, Lauryn E. Parks, and James F. McCluskey
P
reparing for trial can be a daunting task. Sometimes the amount of work
needed to prepare seems so overwhelming that it can lead even experienced attorneys to procrastinate. The following timeline and tips are
designed to help you organize your time and streamline your efforts so that
you are prepared on the day of trial.
Before trial begins. Inquire about the procedures of
your judge. Each judge organizes his or her trial schedule differently. This can affect how long the trial is anticipated to last, when you will present your motions in
limine and jury instructions, and how you should present your case. Well in advance of trial, find out about
your judge’s practices and procedures.
Read the local rules. In DuPage County, be careful to
review and follow Articles 9.01, 9.02, and 9.03 of the
Rules of Practice of the Circuit Court of the 18th Judicial Circuit. In particular, Article 9.03 advises that, in
all civil jury cases, the plaintiff’s attorney is responsible
for submitting a Statement of the Nature of the Case.
But even if you represent the defendant, make sure to
have ready an objective, non-argumentative summary
of the case, along with a list of witnesses. The Court is
22
DCBA Brief
interested in moving the case along and will look to you
if the plaintiff has not prepared the requisite statement.
This document will be read to the jury during the selection process. Also, inquire about any standing orders.
Speak to the judge’s court clerk or assistant about
how the judge normally conducts trial and what he
or she usually expects in advance. Find out how many
hours per day the judge allows for trial. Some judges
schedule trials to begin promptly at 10:00 am. Others
don’t begin their trial call until later in the morning, or
even the afternoon. This can affect how long you should
anticipate the trial lasting and when you should schedule your witnesses.
Speak to attorneys who regularly practice before the
judge. Find out how long the judge typically allows for
opening and closing arguments. Does the judge prefer
oral closings if it is a bench trial, or does he or she prefer jury instructions should each contain at the bottom of
written closing arguments or bench briefs? Does your each page the footer shown in Table 1. (See page 27)
judge generally rule on motions for directed verdict and
As you review the proposed jury instructions durmotions in limine immediately, or does he or she gen- ing the pretrial conference or jury instruction confererally reserve the decision? If it is
ence, mark on the bottom of each
a bench trial, how soon should
page whether the instruction
Jennifer L. Friedland
you anticipate the judges’ ruling?
was given, refused, withdrawn,
is an associate with
Some judges tend to rule immeor whether ruling was reserved.
Momkus McCluskey,
diately, while others tend to take
Then, when you get back to your
LLC, located in
matters under advisement. Also
office, you can print out clean
Lisle, where she fofind out how the judge prefers to
copies of only those instructions
cuses on Commercial
receive exhibits. Does the judge
which were approved after final
Litigation.
Jennifer
want them handed up as they are
instruction conference. Prepare a
graduated magna
admitted into evidence, or would
clean copy of these jury instruccum
laude
from
the
University
of
Kentucky
in
he or she prefer a trial exhibit
tions for each juror.
2001 and received her degree of Juris Doctor
binder, so that all the exhibits are
Also, anticipate evidentiary isfrom
Tulane
University
Law
School
in
2006.
contained in one place?
sues and be liberal in the number
Documents Drafted Before
of motions in limine you prepare.
Trial. Have all your motions in
When you are reviewing witness
Lauryn E. Parks
limine, motions for directed verdeposition transcripts, try to anhas been an associdict, and jury instructions ready
ticipate your objections (or your
ate
with
Momkus
before trial begins. Don’t assume
opposing counsel’s objections)
McCluskey, LLC
that you will have time to draft
when the witness is called to the
since
2008.
Lauryn
motions or jury instructions afstand. Then, put those objections
graduated from the
ter the trial starts – you won’t!
in writing in the form of a moUniversity
of
Chicago
Some judges require motions in
tion in limine. Having your obin 2003 with a delimine and jury instructions to be
jection in writing will ensure that
gree
in
Economics
and
received
her
degree
of
presented at the pretrial conferyour argument is clear, both for
Juris Doctor from the University of Michigan
ence one week before the start of
the judge and for the record, and
Law School in 2007. Lauryn’s practice is
trial, but even if your judge does
it will also ensure that you have
primarily focused on commercial litigation.
not have this requirement, plan
supporting case law readily availahead.
able. Prepare an order as soon as
Drafting your jury instructions
possible detailing the rulings on
James F. McCluskey
in advance will not only save you
the motions in limine.
is a partner with
time once trial has started, but
Prepare a trial notebook. A
Momkus McCluskey,
it will also help you prepare for
binder with the key trial docuLLC, located in
trial. The jury instructions frame
ments is an ideal method of keepLisle, where he practhe issues and assist you in prepaing everything in one place and
tices
Commercial
ration opening statements and
staying organized. Organize a
closing arguments. Drafting jury
three ring binder with the followLitigation.
James
instructions will guide you reing documents: (1) The court’s
received a Bachelor of Science degree in
garding the burden of proof and
trial scheduling orders and standAccounting from Elmhurst College in 1976.
elements of causes of action in
ing trial orders; (2) The most reHe received his degree of Juris Doctor from
the case. Whenever possible, pay
cent complaint and answer; (3) A
Northern Illinois University in 1979. James
close attention to the Illinois Patlist of motions in limine to keep
has tried over 55 civil jury trials to verdict in the
tern Jury Instructions, as these are
track of whether each was granted
Chicago-land area, as well as the federal courts
the most likely to be given by the
or denied; (4) Copies of the trial
of the central and northern districts of Illinois.
judge. Also, the Court’s, opposing
subpoenas which you issued, as
counsel’s and your copy of your
well as a witness list with contact
June 2012
23
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information for each planned witness (file the trial subpoenas with the Court and retain copies); (5) A checklist
of your exhibits so that you can keep track of whether
each exhibit was admitted into evidence; (6) Deposition
summaries or thumbnail copies of deposition transcripts;
(7) Outlines for witness examinations, direct and cross;
(8) Copies of any Rules of Evidence or Rules of Civil
Procedure which
are likely to be
at issue, copies
of Hunter’s Trial
Handbook and
Evidence Manual by Cleary &
Graham; (9) The
parties’ Rule 213
and 214 disclosures; (10) Any key documents or exhibits; (11) Copies
of relevant case law; (12) Opening argument notes; and
(13) Blank pieces of paper devoted to your notes for your
closing argument so that you can draft it in the evening
or early morning in between trial days.
Prepare a trial exhibit notebook. Rather than waiting to hand out copies of each new exhibit to the witness,
judge and opposing counsel when you wish to introduce
it during trial, prepare trial exhibit binders. Mark each
exhibit and keep them separated by index tabs. That way,
you can hand the binder containing all the exhibits to
the witness after he or she is sworn in and direct them to
turn to the appropriate tab, rather than making multiple
trips back to your trial table to select the exhibit you
want to use and walking around the court room to distribute it to the judge and opposing counsel. This is inefficient and lacks professionalism. Remember to make at
least four exhibit binders: one for you, one for opposing
counsel, one for the witness, and one for the judge.
Timeline for trial preparation. Get started preparing for trial at least two months in advance. The following benchmarks are useful to ensure that you stay on
schedule.
Two Months Before Trial. Contact your witnesses.
Send out trial subpoenas to your witnesses, but also include a letter asking the witness to call you, as well as a
copy of the witnesses’ deposition transcript and any important documents which he or she may need to review.
If the witness doesn’t call you, make sure to follow up.
Make sure that you speak to each witness before trial so
you can remind
them of the subject matter of
their testimony,
and to coordinate what time
they need to appear.
Start drafting jury instructions, motions in limine, and a bench brief, if necessary.
This will not only ease the pressure during trial, but it
will also help to narrow the issues, prepare for trial testimony and assist you in preparing opening and closing
statements. Start reviewing deposition transcripts and
outline anticipated witness examination questions.
One Month Before Trial. Begin reviewing important
documents and draft a preliminary exhibit list. Select key
exhibits so that you can order blow ups or power point
presentations. Begin outlining your opening statement,
case-in-chief, witness outlines and cross-examinations.
Two Weeks Before Trial. Prepare your trial notebook
and exhibit binder. Call or meet with opposing counsel
to determine if he or she is willing to stipulate to exhibits, waive foundation objections pursuant to Illinois
Supreme Court Rule 236, etc.
Conclusion. Thorough trial preparation is essential
to reach an appropriate resolution of a case either by
verdict or settlement. When you come to trial unprepared, you do a disservice to yourself, the court, your
client, and your profession. Win or lose, your reputation
and your success as a lawyer depends on persistence and
preparation. □
Thorough trial preparation is essential
to reach an appropriate resolution of a
case either by verdict or settlement.
Defendant’s/ Plaintiff’s Instruction No. __
IPI _____
Modified/Unmodified
[Citation, if modified]
Given________________
Refused______________
Withdrawn___________
Reserved_____________
Table 1
June 2012
25
Preparing for and Deposing
Expert Witnesses in Illinois:
A Practical Primer
By E. Angelo Spyratos
Y
our case has progressed through the initial stages of litigation and
approaches the conclusion of fact discovery. The parties have identified certain witnesses in their initial answers to interrogatories and responses to production of documents. Issues remain that may
only be resolved by testimony of witnesses who offer special knowledge
– the time has arrived for expert discovery. An “expert witness” is a witness who by education, training or employment is qualified to provide
opinions on issues to be decided by the trier of fact. Expert witnesses are
called to give testimony on matters beyond the purview of the average juror.
This article suggests items an attorney may want to consider to most effectively elicit deposition and trial testimony
from an adverse expert opinion witnesses.
Independent vs. Controlled Expert. Expert witnesses
are categorized under Illinois Supreme Court Rules 213(f )
(2) and 213(f )(3) as either independent or controlled, respectively. Supreme Court Rule 213(f )(2) addresses independent expert witnesses. An independent expert has
not been retained by a party to the litigation. Rather, a
non-controlled expert witness is involved due to their profession or occupation. An independent expert witness’s
professional duties do not inherently involve giving opinion testimony. Put another way, when performing their
professional occupation, such witnesses are oftentimes un26
DCBA Brief
aware that they may be called to give opinions in litigation
involving their expertise. Examples of these witnesses include police officers, paramedics, treating physicians, real
estate appraisers, or other professionals whose involvement
in a transaction or encounter preceded litigation.
For purpose of disclosure, if a party intends to call an
independent expert witness, the litigant must identify
only the “subject on which the witness will testify and the
opinions the party expects to elicit.”1 As an example, it is
appropriate to list a treating physician in a case involving
personal injury. It is sufficient for a party to disclose that
the witness will testify regarding the plaintiff’s diagnosis,
care, treatment and future medical treatment. No further
1 Sup. Ct Rule 213(f)(2)
specificity is required in the disclosure.2
Avoid questions that allow the expert to expand upon
In contrast, under Supreme Court Rule 213(f )(3), an the opinions he gives in the narrative report. Under the
expert witness who has been retained by a party is con- rules, it is sufficient to disclose an opinion in a discovery
sidered a controlled expert. In this scenario, a party who deposition even if the opinion was not communicated
controls the witness must disclose in written discovery, written discovery answers.5 Therefore, by asking the expert
among other things, “. . . the conclusions and opinions of for opinions not contained in the narrative report you may
be giving your opponent more amthe witness . . . .”3 Under 213(f )
(3) a party is required to disclose
munition against your client.
E. Angelo Spyratos
opinions with greater specificity
Chances are that your opponent
is
a
member
when intending to call a controlled
has
included with their answers to
with
Momkus
expert.
written
discovery, the expert’s curMcCluskey, LLC
For example, if a party retains
riculum vitae. This “CV” contains
with locations in
a traffic accident reconstruction
information about the expert’s
Lisle and Chicago
expert, the following disclosure is
education and work experience.
concentrating his
insufficient: “the witness will tesIt may also list the expert’s profespractice in civil
tify as to the speed of the vehicles
sional licenses and certifications,
trial litigation, including bodily injury deinvolved in the collision.” Instead,
published articles in professional
fense. He received a BA in Political Science
the retaining party must disclose
journals, teaching appointments,
and
History
from
Elmhurst
College
in
the expected opinion to which the
awards, and memberships in proElmhurst, Illinois in 1988 and his JD from
expert will testify: “the witness is
fessional organization.
Valparaiso University School of Law in
expected to testify that the defenIn addition to the CV, many
Valparaiso,
Indiana
in
1991.
Mr.
Spyratos
dant’s vehicle was traveling beexperts and professionals have web
has tried over 30 civil cases before juries.
tween 68 and 72 miles per hour at
sites that list their professional acthe time of the collision.”
complishments and services. ConWhen your opponent discloses
sider performing an internet search.
a controlled expert, you are allowed to request certain in- Look to see whether the professional has a LinkedIn listformation through discovery in order to prepare for the ing, Twitter account or Facebook page. While the internet
expert’s deposition and test the expert’s opinions.
is not always accurate, there is no harm in researching the
Preparation for Expert’s Deposition. Before you pro- expert online.
ceed with the deposition of an expert you will want know
Finally, if you are a member, consider reaching out to
something about his or her professional background and bar association like the Illinois Trial Lawyers Association
qualifications. If the expert witness is an independent ex- (ITLA) or the Illinois Association of Defense Trial Counsel
pert, you may not be able get all of the detailed materials (IDC). Such organizations often maintain databases or
I suggest in this article; however, many of the suggestions other information on experts, which they make available
apply equally to preparing to depose any expert witness, to their members. Also, posting inquiries on bar associawhether independent or controlled.
tion bulletin or discussion forums may yield valuable inOften the controlled expert has prepared a narrative re- formation about your opponent’s expert.
port or correspondence to opposing counsel containing in
Request materials from your opponent that bear upon
detail the opinions he holds and the basis thereof. This re- the expert’s opinions and qualifications, including docuport is vital for your deposition preparation. The narrative ments, objects and tangible things.6 It is appropriate to ask
report should be the basis upon which you formulate your for the expert’s entire file because no privilege attaches that
outline and questions for the expert’s deposition. Rather would prevent you access to this information. You should
than preparing a formal outline for the deposition, I usu- request all correspondence between the attorney and the
ally photocopy the expert’s report and mark it up, high- expert involving your case. In addition you should request
lighting the relevant portions.4 This marked copy serves as all documents, photographs, videos and drawings the expert reviewed. Request all notes he has taken, including
my roadmap for deposing the expert.
hand-written notes. Ask for all invoices and statements
related to this case. Seek copies of any rough drafts of
2 If you know more detail about the opinion it may be wise to
disclose it.
3 Sup. Ct Rule 213(f)(3)
4 Be sure to save a clean copy of the report if you want to use it
as an exhibit at trial.
5 See Sup. Ct. Rule 213(g)
6 See Sup Ct. Rule 214
June 2012
27
the narrative report that the expert prepared for the case.
Request a list of the pleadings, discovery documents or depositions that the expert reviewed. This is not necessarily
an exhaustive list, but you get the idea.
In addition to materials related to your case, consider
asking for other materials that may reveal the expert’s bias.
For example, consider asking for tax information reflecting
income derived from the expert’s activities in legal matters.
What portion of the expert’s income is derived from participation as an
expert witness? If
you cannot find
this information
prior to the deposition, make
sure you ask it
during the deposition.
Finally,
ask your opponent to provide
a list of matters
in which the expert has testified
(both depositions
and proceedings)
in the past four years. Some experts do not maintain such
a list, but if the expert testified in Federal District Court he
may have had to compile one.7
Make sure you understand the subject matter upon
which the expert is offering opinions. Educate yourself.
The internet is a good place to start. Consider locating
materials in the area of specialty of your opponent’s expert.
Find books, journals or treatises in the expert’s field. Many
reputable sources are now available online. Is the expert’s
opinion based upon methods that are tried and true or are
they cutting edge? Are the principles and methods used
by the expert generally accepted in his field? Once you
have answers to these questions, you are ready to depose
the expert.
Deposition of the Expert Witness: The Expert’s
Background. If you are deposing an independent expert,
the chances are pretty good that you were just handed his
curriculum vitae for the first time immediately prior to
the deposition. Take some time to review it. Whether an
independent or controlled expert, I focus on the education and work experience of the expert as a starting point.
Next, I want to know whether the expert’s involvement in
litigation is ancillary to his full time employment. Does he
spend most of his time consulting with lawyers or is this
a small part of his full time employment? Ask the expert
how many times has he testified at depositions or at trial.
When retained is he typically retained by plaintiff of defendant? What are the percentages for each side?
Additionally, ask the expert whether he has any special
certifications or awards that relate specifically to the issues
in this case. Does he publish on the subject matter at issue
in the case? Has the expert spoken or lectured at organizations or bar associations that cater to the plaintiff’s or the
defense bar. If so,
consider asking
him for a copy or
locating a copy
of the published
material. Where
does the expert
advertise his services? Ask the
expert whether
his CV is current.
If not, what additions or deletions
should be made?
At this stage, I always ask that the
expert’s CV be marked as an exhibit and have the court
reporter attach it to the deposition transcript.
Deposition of the Expert Witness: How was the Expert Retained? Inquire of the expert how she became involved in this case and when she was retained. Was she
contacted by the attorney or by the party? Did a party’s
insurance company retain her? Inquire whether she has
worked with counsel for this case or other members of the
firm. If so, how often has she been retained by your opposition? Numerous previous retentions by one attorney,
firm or client may expose a bias or predisposition that you
can use to undermine the expert’s opinions. The jury may
attribute less weight to the expert’s opinions if she has been
retained too many times by your opponent.
Next ask what was the expert hired to do? Confirm
the expert’s recollection of the assignment with correspondence from opposing counsel. Was this assignment letter
the point at which the expert first learned whether she was
being hired by the plaintiff or defendant? Also check the
expert’s billing or time entries for dates and task descriptions. Look specifically for a communication from opposing counsel that suggests to the expert what the outcome
needs to be. For example, the attorney may have asked
a fire and origin expert to determine the cause of a warehouse fire. In contrast, the expert may have been asked to
determine whether the fire originated from an electrical
Often the controlled expert has prepared
a narrative report or correspondence
to opposing counsel containing in
detail the opinions he holds and the
basis thereof. This report is vital for
your deposition preparation.
7 FRCP 26(a)(2)(B)
28
DCBA Brief
box. A physician could have been hired to determine what
injuries a party sustained in a motor vehicle collision. By
contrast, if the injuries are obvious, the attorney may have
asked the physician to comment only on whether the party
will require future treatment for injuries sustained in the
accident. If your opponent asked the expert a “leading”
question in the assignment letter, you may be able to suggest that your opponent was not looking for an objective
opinion.
Deposition of the Expert Witness: Work Performed
on the File. Ask the expert what work he performed in
advance of formulating his opinions for the case. What
materials did the expert review and who provided the materials? Did the expert inspect any products, make a site
or scene inspection, or meet the injured party? Did the
expert review medical records or diagnostic films? Did the
expert conduct any experiments, reconstructions or lab
tests? Did the expert keep notes of the tasks he performed?
Did the expert review pleadings in your case? If so, did
the expert review the complaint, answers, counterclaims,
affirmative defense or dispositive motions? Did the expert
assist counsel in formulating a strategy for a motion for
summary judgment?
What studies, articles, books or treatises did the expert
rely upon in reaching an opinion in the case? Ask the expert to provide a citation for the source, if not an actual
copy of any such reference. Ask the expert to explain how
these sources were significant in formulating opinions. Do
his peers and colleagues generally accept these materials?
Make sure that the expert’s qualifications match the
subject matter about which she is testifying. For example,
if the expert is an orthopedic surgeon, does she limit her
practice to knee surgeries but is providing an opinion regarding a hand injury? Is the expert a mechanical engineer providing opinions on an electrical issue? Or, is a
biomechanical expert testifying beyond his expertise and
into medical issues? While you may not disqualify the expert completely, the court may limit the testimony of the
expert. At the very least, presenting a jury with discrepancies between the expert’s area of expertise and the area
of his opinions may undermine the weight of the expert’s
opinions.
Deposition of the Expert Witness: Opinions and the
Basis for Expert Opinions. For controlled expert witnesses, you should know what opinions they hold prior
to the deposition, by virtue of the retaining attorney’s was
disclosure obligations. For independent expert witnesses,
you may only know the subject matter of the opinions.
So in that context, the deposition is your opportunity to
flush-out the opinions they hold.
All expert opinions need to be based upon a reasonable
degree of certainty in order for the opinions to be allowed
by the court. I suggest that you ask the expert to testify
as to his opinions soon after you completed your questions about the expert’s background and work performed
on the case. In the remainder of the deposition you can
focus on the basis for those opinions, including specious
assumptions, incomplete information, bias, and inaccurate
testimony. If you sufficiently undermine the basis for the
opinions, the opinions will collapse.
Consider some examples of opinions that collapsed
once it was shown that the information the expert considered was false. In a case involving medical opinions,
the plaintiff told the physician that she was involved in a
collision in which the defendant’s vehicle was traveling at
45 mph upon impact. In reality, the impact was less than 5
mph. Another plaintiff told her doctor that her neck pain
began with the accident. However, less than one month
prior to the accident she reported neck pain to a different
physician who prescribed her medication.
In cases involving accident reconstruction expert testimony, an expert often uses testimony of parties or witnesses to reconstruct the accident and formulate opinions.
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If the expert is unable to reconcile testimony from witnesses who have different recollections, the expert may be
criticized for relying on one witness’s account over another.
In terms of strategy for revealing bad foundation information, sandbag a little. Try not to hit the homerun with
your opponent’s expert at the deposition. Chances are high
that your opponent’s expert is not going to abandon the
opinions your opponent disclosed in written discovery.
Rather, focus on the little discrepancies in the basis for the
opinions, the expert’s biases, and the expert’s oversights. If
you elicit enough of these weaknesses, the expert’s impact
will be minimized.
Deposition of the Expert Witness: Compensation.
Finally, ask the expert what compensation he received for
his work on this case. I typically save this line of questioning for last. No matter how seasoned the expert, he likely
perceives questions of compensation as an attempt to expose his bias in favor of the party retaining him. As a result
he may become defensive. By saving this line of question
for the end, I allow the expert to testify on matters less obviously hostile. This way the expert feels more comfortable
with me, thus, increasing the chances of obtaining some
concessions in his testimony.
30
DCBA Brief
Ask how the expert is compensated: by the hour or on a
flat fee basis? Ask whether the expert knows how his rates
compare to his colleagues with similar experience. Then
ask how much he has been paid to date for this case and
how much he expects to be paid if called to testify at trial.
If the expert traveled some distance to participate in this
case, does he charge door to door? Does he pass through
his travel expenses and meals to his client?
The last item I will request of the expert is to quantify
the amount of money he or she earns by participating in
litigation as an expert. I prefer that the expert answer this
question in actual dollars rather than a percentage of income. Some attorneys will request the expert’s tax returns.
Experts will often refuse to provide these materials. Many
courts will compel production of an expert’s tax returns.
Some experts would rather withdraw from the case than
comply. The attorney hiring an expert may want to make
an inquiry early on in the case whether, if asked, the expert
will disclose sensitive financial information.
Conclusion. Experts are a critical part of many cases.
By preparing thoroughly and asking the appropriate questions at deposition, you can minimize expert’s impact or
even eliminate them as a witness against your client. □
Expectation of Privacy in A Digital
Age: An Overview of Employment
Law Cases and Statutes
Struggling to Create Precedent
as Expectations Evolve
By James S. Barber and Karen E. Bettcher
M
any employees assume that they have a right to use an employer’s
electronic devices to engage in private personal communications.
Many employers consider employee personal use of an employer’s
electronic devices an abuse and a threat to productivity. At least a dozen statutes and common laws can be implicated in social media communications on
work-related devices. This article reports some of the recent case law developed as courts struggle to craft precedential guidelines while both technology
and society’s expectations continue to evolve.
Statutory Protections: Stored Communications Act
(“SCA”). The SCA protects the privacy of users of electronic communication services. The SCA prohibits unauthorized access to stored communications such as e-mails
and Internet accounts. Specifically, 18 U.S.C §2707(a)
with some exceptions, provides a cause of action to: “. .
1
1 See, e.g., The Fair Credit Reporting Act, 15 U.S.C. § 1681 (2006); The
Stored Communications Act, 18 U.S.C § 2707 (2006); The Federal Wire
Tap Act, 18 U.S.C. ch. 119 (2006); The Fair Labor Standards Act, 29
U.S.C. ch. 8 (2006); The National Labor Relations Act, 29 U.S.C. ch. 7
(2006); The Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (2006);
Illinois Right to Privacy in the Workplace Act, 820 ILCS 5; Illinois Right
to Publicity Act, 765 ILCS § 1075; Illinois Personnel Records Review
Act, 820 ILCS 40.
32
DCBA Brief
. any provider of electronic communication service, subscriber or other person aggrieved by any violation of this
chapter in which the conduct constituting the violation is
engaged in with a knowing or intentional state of mind,
may in a civil action, recover from the person or entity,
other than the United States, which engaged in that violation such relief as may be appropriate. Relief under the
statute includes injunctive and declaratory relief, damages
both compensatory and punitive, and attorney’s fees and
litigation costs.”2
The Supreme Court had the opportunity to decide a
2 Stored Communications Act, 18 U.S.C §2707(b)-(c) (2006).
SCA claim in City of Ontario, California v. Quon, a case where a municipal government searched the text
messages of a police officer.3 However, the Supreme Court observed
that technology and cultural habits
are still evolving and reasoned that
it “would have difficulty predicting
how employees’ privacy expectations
will be shaped by those changes or
the degree to which society will be
prepared to recognize those expectations as reasonable.”4 The Supreme
Court, therefore, only considered the
Fourth Amendment claim and reversed the Ninth Circuit by holding
that the search was reasonable and
did not violate the Fourth Amendment.5 Staying silent on this has
resulted in varying interpretations
by lower courts of what constitutes
authorized access by employers to
password protected employee websites under the SCA.
For example, the District Court of
New Jersey was faced with this question in Pietrylo v. Hillstone Restaurant
Group. In Pietrylo, two employees
sued their employer, a restaurant
chain, for unauthorized access to a
private, invitation only, chat room
on MySpace.6 An employee, after
being invited into the chat room,
showed the website to one of the restaurant’s managers and later gave her
password to two other managers.7 A
jury found in favor the employees on
their SCA claims and awarded punitive damages.8 The restaurant filed
motions for judgment as a matter of
law, for a new trial and to strike the
punitive damage award.9 However,
the trial judge concluded that the
jury could reasonably infer that, as
James S. Barber
is a partner with
Clausen
Miller
P.C. and head of
its Employment
Practice Group.
He counsels and
represents clients
in areas of employment policy, contracts, labor standards and employment
litigation. Mr. Barber has extensive experience in injunction actions, specifically in
disputes related to enforcement of covenants
not to compete, confidentiality agreements
and trade secrets. He is an accomplished
author and lecturer. For eight consecutive
years, Mr. Barber has been recognized as a
Leading Lawyer and Illinois Super Lawyer.
Karen E. Bettcher
is an associate attorney at Clausen
Miller P.C. specializing in litigation.
She has represented
clients in matters
involving liability
claims and property
rights disputes arising from computer usage and data storage.
Ms. Bettcher received her Juris Doctor
from The John Marshall Law School
where she was the managing editor of the
Review of Intellectual Property Law. She
is a former federal law clerk and did her
undergraduate work at Miami of Ohio.
Quon, 130 S. Ct. 2619 (2010).
Id. at 2629-2630.
Id.
Pietrylo v. Hillstone Rest. Group, No. 06-5754, 2009 WL 3128420,
*1 (D.N.J. Sept. 25, 2009).
7 Id. at *3.
8 Id. at *1.
9 Id. at **1, 5.
3
4
5
6
the employee testified, she had felt
that she would get in trouble if she
had not provided the information.10
In addition, because the website
provided clear warnings that it was
“private,” the Court found that the
managers acted with a state of mind
prescribed by the statute for a knowing or intentional violation.11
More recently, in Maremont v.
Susan Friedman Design Group, Ltd.,
an employee alleged that her employer gained unauthorized access
and use of her Twitter and Facebook
accounts to promote the company
in violation of both the SCA and
Lanham Act.12 The plaintiff was the
director of marketing, public relations and e-commerce for the defendant company.13 She developed a
company blog and linked company
Facebook and Twitter accounts to
the blog and website.14 The plaintiffemployee also opened personal Twitter and Facebook accounts solely for
her own benefit and she developed a
personal following on Twitter in the
Chicago design community.15 The
plaintiff stored all company account
access information as well as her own
passwords for her personal Twitter
and Facebook accounts on the company server.16 However, she stored
her personal information in a locked
folder and never gave anyone access
to her personal Twitter and Facebook
accounts.17
The employee was involved in a
serious auto accident and was hospitalized.18 During her absence, she
discovered that the company had
posted Tweets on her personal Twit-
10 Id. at *3.
11 Id.
12 Maremont v. Susan Friedman Design Group, Ltd., No. 10 C 7811,
13
14
15
16
17
18
2011WL 6101949, **1-2 (N.D. Ill., Dec. 7, 2011).
Id. at *2.
Id.
Id.
Id.
Id.
Id.
June 2012
33
ter account and her Facebook page announcing that the
plaintiff was out due to her accident and posted a link to
its company blog, which announced that, during plaintiff’s
absence, there would be a specific guest blogger.19 The employee returned to work temporarily, but ultimately quit
on her doctor’s recommendation.20 She later became employed by another company in the public relations business.21 The plaintiff filed a federal complaint alleging a
violation of the
SCA. The court
denied summary
judgment on the
SCA claim because there was a
material issue of
fact as to whether
the defendants
“exceeded their
authority in obtaining access to
[her]
personal
Twitter and Facebook accounts.”22
Plaintiff also
alleged a false association claim
under the Lanham Act, a claim
under the Illinois
Right to Publicity Act, and
a common law
intrusion upon
seclusion claim.23 The Lanham Act permits claims for
false representations communicated through wrongful use
of another’s distinctive mark, name, trade dress or other
device.24 The former employer argued that the plaintiff
neither had standing under the Lanham Act nor had she
suffered any financial injury and sought summary judgment.2526 However, the court disagreed and found that
because the plaintiff had developed a personal following
on Twitter and Facebook for her own economic benefit
and to use if she left her employment, in order to promote
another employer to those followers, the plaintiff met the
standing requirement of “protected, commercial interest in her name and identity within the Chicago design
community.”27
The plaintiff also brought a claim under the Illinois
Right to Publicity Act (“IRPA”),28 which precludes appropriation of a person’s name or likeness without written
consent.29 The
court
granted
the defendant’s
motion for summary judgment
on the IRPA
claim
because
the employer did
not pass itself off
as the plaintiff in
the Tweets.30 In
fact, the employer
announced
that the plaintiff
was injured in
an accident and
that other employees
would
temporarily act
in her absences.31 Finally, the
court dismissed
26
the common-law
intrusion upon
seclusion claim
because it was undisputed that the plaintiff had a following
of 1,250 people on her Twitter account and she also had
Facebook followers, and as a result, was unable to show any
private information upon which the defendant intruded.32
Statutory Protections: Computer Fraud And Abuse
Act. The Computer Fraud and Abuse Act (“CFAA”)33 is a
powerful litigation tool that can discourage employee computer fraud. Under the CFAA an employer can seek both
civil and criminal penalties, money damages and injunctions against former employees and their future employers
“[T]he Court would have difficulty
predicting how employees’ privacy
expectations will be shaped by those
changes or the degree to which
society will be prepared to recognize
those expectations as reasonable. . . . And employer policies concerning
communications will of course shape the
reasonable expectations of their employees,
especially to the extent that such policies
are clearly communicated. ”
19 Id.
20 Id. at *3.
21 Id.
22 Id. at 5.
23 Id. at *1.
24 Id. at *4.
25 Id.
26 City of Ontario, Cal. v. Quon, 130 S. Ct. 2619, 2630 (2010).
34
DCBA Brief
27 Id.
28 Right of Publicity Act, 765 ILCS § 1075.
29 Maremont, 2011WL 6101949, *6.
30 Id. at *7.
31 Id.
32 Id.
33 Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (2006).
who take company information.34 Correctly applied, the
employer can successfully get into federal court to accomplish all this without having to meet the rigors of proof
required in traditional state court trade secret and unfair
competition cases. Interpretation of the CFAA, however,
varies among the courts.
Ninth Circuit. In LVRC Holdings, LLC v. Brekka, the
Ninth Circuit held that once an employer authorizes an
employee to access its computer database and the employee subsequently takes information off the database for his
personal use, the employee has not violated CFAA.35 Further, the court found that there is no language in CFAA
supporting the employer’s argument that authorization
ceases “when an employee resolves to use the computer
contrary to the employer’s interest.”36 The decision in the
Brekka case applies as precedent in the nine states covered
by the Ninth Circuit, i.e., California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.
However, in a 2011 decision, a separate Ninth Circuit panel applied a more expansive application of the
CFAA. In U.S. v. Nosal, the Ninth Circuit reinstated a
federal criminal CFAA indictment against a former company executive.37 The enterprising executive had enlisted
current employees to collect information from his former
employer, which enabled the former executive to organize
a competing business.38 Initially, the district court held
that “a person’s accessing a computer ‘knowingly and with
intent to defraud . . . render the access unauthorized or in
excess of authorization.”39 Following the Brekka decision,
the district court reconsidered and held that the Brekka
decision compelled the dismissal of the CFAA counts finding that because the current employees had authorized
access to the company’s computer system, they had not
exceeded the authority under the CFAA.40 However, the
Ninth Circuit panel distinguished the facts presented to
it from the facts in the Brekka case.41 Important here, the
Ninth Circuit panel pointed out that the employer in the
Brekka case had not established clear limitations on the
employee’s authorization, while the employer in the Nosal
case had.42 The employees, in Nosal, violated those clear
and conspicuous restrictions on their access to confidential
34 See generally id.
35 LVRC Holdings, 581 F.3d at 1129, 1132.
36 Id. at 1133.
37 U.S. v. Nosal, 642 F.3d 781, 782 (9th Cir. 2011), reh’g en banc
granted, 661 F.3d 1180 (9th Cir. 2011).
38 Id. at 783.
39 Id. at 784.
40 Id.
41 Id. at 787.
42 Id.
databases under company policies.43 The court stated that
“as long as the employee has knowledge of the employer’s
limitations on that authorization, the employee ‘exceeds
authorized access’ when the employee violates those limitations. It is as simple as that.”44
But, this more expansive application of the CFAA is potentially already in jeopardy. On October 27, 2011, the
Ninth Circuit decided to rehear Nosal en banc.45 As a result, at least one district court has recognized that “exactly
how the words ‘excess of authorization’ are to be interpreted for the purposes of liability under CFAA” remains
unsettled in the Ninth Circuit.46
Seventh Circuit. The Ninth Circuit panel in the Nosal
decision echoed the earlier Seventh Circuit opinion in International Airport Centers, LLC v. Citrin, 440 F.3d 418
(7th Cir. 2006). In the Citrin decision, the employee was
responsible for downloading into a company laptop real
properties that the company might target for acquisition.47
The employee decided to quit, go into business for himself
and before returning the company laptop, deleted all the
data from the laptop, including data that would have revealed improper conduct in which he engaged, and used
an eraser program to “scrub” the deleted data files in order
to cover his tracks.48
The company’s employment contract authorized the
employee to either return or destroy the data on the laptop when he ceased being employed.49 Therefore, the employee argued that he had not violated the employment
agreement when he deleted the information after he left.50
However, the Seventh Circuit disagreed with the opportunistic employee and ruled that deleting the data to cover
his tracks was a breach of the employee’s duty of loyalty.51
The employee thereby terminated his employment and his
authorization to use the laptop – despite the fact that at
the time the company was unaware of the deletion and had
not personally terminated the employee.52
Fifth Circuit. In 2010, the Fifth Circuit, in United
States v. John, held that an employee violates and is subject to prosecution under the CFAA when the employee
knows or should have known that he is not authorized to
43 Id.
44 Id. at 788.
45 U.S. v. Nosal, 661 F.3d 1180 (9th Cir. 2011) (en banc).
46 Platinum Logistics v. Ysais, No. 11-cv-1174, 2012 WL 177418, *2
(S.D. Cal. Jan. 20, 2012).
47 Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418, 419 (7th Cir. 2006).
48 Id.
49 Id. at 421.
50 Id.
51 Id. at 420-21.
52 Id.
June 2012
35
obtain information from a company computer to perpetrate fraud.53
First Circuit. Adding to the mix the First Circuit in
E.F. Cultural Travel BV v. Explorica, Inc., a decision that
preceded the Citrin and the John decisions, upheld the issuance of a preliminary injunction, finding the employer
was likely to prove that a former employee, who had been
under a confidentiality agreement, exceeded the authorization given to him when he accessed a website in order to
“mine” his former employer’s proprietary information for
a competitor.54
Stretching Too Far? In Lee v. PMSI, Inc., an employee
brought a pregnancy discrimination complaint against her
employer. 55 The employer filed a counterclaim under the
CFAA, the crux of which was the allegation that, while at
work and on the company’s computer, the employee had
visited personal websites such as Facebook and monitored
and sent personal e-mails through her Verizon webmail account.56
However, the Florida district court found that “[b]oth
the letter and the spirit of the CFAA convey that the statute is not intended to cover an employee who uses the [I]
nternet instead of working.”57 The Court observed that
the employee had not damaged a computer system nor obtained confidential, proprietary company information via
its computer system.58 In the Court’s view, the CFAA was
intended to apply only to those situations.59 An employer
simply is at its own risk when it authorizes an employee to
use a company computer even if when the employee violates limitations placed on her use provided that she is still
authorized to use the computer.60
P2P Exposures to Corporations from Regulatory
and Common Law Attacks.61 Employees’ use of employers’ electronic devices not only subjects employers to the
misconduct of employees but also exposes corporations
to potentially greater external threats. Using programs
like Napster, e-Donkey, BitTorents, or Gnutella or other
game-sharing programs to download music means that
the user is implementing “peer-to-peer” networking, oth53 U.S. v. John, 597 F. 3d 263, 271 (5th Cir. 2010).
54 E.F. Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 583-84 (1st
Cir. 2001).
55 Lee v. PMSI, Inc., No. 8:10-cv-2904-T-23TBM, 2011 WL 1742028, *1
(M.D. Fla. May 6, 2011).
56 Id.
57 Id.
58 Id.
59 Id.
60 Id. at *2 (citing LVRC Holdings, LLC v. Brekka, 581 F.3d 1127, 1133
(9th Cir. 2009).
61 Special thanks to my partner Tom Ryerson in our Wheaton
office for his prior collaboration on this section on P2P.
36
DCBA Brief
erwise known as P2P. In more technical jargon, P2P is a
distributed application architecture that partitions tasks or
workloads between equally privileged peers, which form a
peer-to-peer network. The “peers” become suppliers and
consumers of resources in contrast to the traditional clientserver model where only servers supply and users consume
data. Using P2P on a home network or on a work laptop
raises a very real risk of a breach of confidential information. For example, if a sales person at a company downloaded a customer spreadsheet to use on his or her personal
laptop, which is shared with a son or daughter who downloads music using P2P software, there are hackers who can
gain access by participating in the exchange of information over the peer-to-peer network in order to get into the
data that the salesperson stored on the laptop. Firewalls
set up to prevent hackers from gaining access to the company network are generally not helpful here. Regulatory
enforcement is possible from the Federal Trade Commission, the Justice Department, States Attorney General or
municipalities to investigate a breach of confidentiality if
customer’s social security numbers, private medical information of clients or other personal data are “mined” and
published on the Internet. Regulatory compliance may
require a company to identify the breach, terminate it, prevent it, and prove that this was all accomplished in a very
short period of time.62
Other Potential Legal Theories. There also is a potential for liability under common-law legal theories such as
(i) negligence, (ii) invasion of privacy, (iii) identity theft
and (iv) emotional distress depending upon what information was mined by the hacker. Depending upon the
industry and nature of the information, liabilities could
arise under (v) patient rights acts, (vi) healthcare reform
acts and, (vii) personal information protection acts.
Conclusion. As the United State noted in its decision
in City of Ontario, California v. Quon, technology and cultural habits still are developing in the area of social media.63 The preceding cases and observations are made from
one point in time on the continuum of that evolutionary
development. □
62 See e.g. Health Insurance Portability and Accountability Act, 42 U.S.
C. §§ 1320d et seq; The Health Information Technology for Economic
Clinical Health Act, American Recovery and Reinvestment Act of
2009, Pub. L 111-5, §§ 13001-13424, §§ 4001-4302; Gramm-Leach
Bliley Act of 1999 (“GLBA”), 15 U.S.C. §§ 6801-6809 (regulations
implementing GLBA’s privacy requirements include, among
others, 16 C.F.R. part 13 and 12 C.F.R. Parts 40; 216, 332, 573,
and 716); Standards for Safeguarding Customer Information, Federal
Trade Commission, 16 C.F.R. part 314; Fair and Accurate Transactions
Act, Pub. L. 108-159, 111 Stat 1952; Fair Credit Reporting Act, 15
U.S.C. § 1681 et seq.
63 Quon, 130 S. Ct. at 2630.
and
SNFs Must Conduct Pre-Admission
Criminal History Background
Checks: “Knowing is Half the Battle”1
and Care Planning is the Other Half
By Kathleen May-Mazzocco
T
he jury made their decision.2 Seventy-eight year old Lillian Portelli suffered no injuries when her neighbor sexually assaulted her in a skilled
nursing facility (SNF).3 Edwards, her attacker, used his wheelchair to
wedge the door shut, making it difficult to open when staff realized something
was amiss.4 The jury found Lillian’s advanced Alzheimer’s disease prevented
her from recognizing what was happening and her inability to remember the
graphic details of the assault rendered her unharmed.5
In and around 2005, stories of elderly SNF residents
being sexually assaulted by fellow residents with sexually
12345
1 G.I.Joe Public Service Announcements ended every episode of
2
3
4
5
38
G.I. Joe cartoons with the saying “Knowing is half the battle.”
Kids were placed in different situations and Joes would give
them advice on how to handle the problem.
Nora Lockwood Tooher, Jury Rules in Favor of Nursing Home in
Nevada Patient Sexual Assault Case, Lawyers Wkly USA (July 4,
2005).
Tooher, supra n. 2 (the case could not be located, nor the
plaintiff’s attorneys reached for comment). The Nevada
Supreme Court denied certiorari for stipulation. Green v. Barton
Healthcare Systems, 178 P.3d 760 (Nev. 2006).
Wes Bledsoe, A Perfect Cause, Predators in America’s
Nursing Homes, Reports, Predators in America’s Nursing
Homes Ongoing Investigations and Reports 2004-2006,
http://www.aperfectcause.org/APC-US_CongressReportCriminalOffendersOffensesInLTC-April2006.pdf
11(last
accessed April 2, 2010) [hereinafter Bledsoe, Ongoing Reports
2004-2006].
Tooher, supra n. 2.
DCBA Brief
deviant pasts became prevalent in the media and minds of
America. News stories describe victims in facilities either
negligent in preventing the sexual offense or helpless due
to a lack of knowledge that they admitted a former sex
offender.6 The term “sexual offense” encompasses a broad
spectrum of crimes7 that are ultimately a violent act in
which the offender uses sexual contact as his8 weapon.9
6 See generally Diane E. Felix & Christal E. Edwards, Commentary:
Sexually Abusive Residents Are Bane of Mo. Nursing Homes,
Missouri Lawyers Weekly (Sept. 19, 2005) Patricia Lopez, Hatch
Sues Nursing Home Sex Offenders Housed with Patients, Suit Says,
Star Tribune: Newspaper of the Twin Cities (May 27, 2004).
7 John Q. LaFond, Preventing Sexual Violence: How Society
Should Cope with Sex Offenders 43-44 (American Psychological
Association 2005).
8 A sexual offender can be male or female but for the purposes
of this paper I will refer to the sexual offender in the male tense.
9 Angelo P. Giardino, Elizabeth M. Datner & Janice Asher, Sexual
Assault: Victimization Across the Life Span, A Clinical Guide, xiii
(G.W. Medical Publishing, Inc. 2003).
Health care, medical and legal professionals as well as
The Risk for Sexual Offenses in SNFs is Rising. Bill
advocacy organizations hold differing opinions on what Clinton proposed that the aging of the Baby Boomers is
prevention tactics most effectively address the risk of sexu- “one of the central challenges of the coming century…”17
al offender placement in SNFs. Specifically, opinions vary With a rapidly growing elderly population facing a one in
as to what means of sexual offender notification, if any, three chance of being placed in a SNF, 18 the implications
should be employed to provide SNFs with knowledge and of sexual offenders in SNFs is an issue all Americans need
to what extent the facility should
note. By 2030, one in five Amerishare that information with resicans will be elderly.19 With a death
Kathleen
Mayrate in SNFs as high as twelve perdents and families.10
Mazzocco
graduThe pros and cons of strategies
cent, Americans have a one in thirated from Eastern
for both the sexual offender and
ty-six chance of becoming a nursIllinois
University,
the community where he resides
ing home victim.20
cum laude, in
must be considered when contemA Perfect Cause (APC) advocacy
2005 with a
plating a resolution. Proponents
group, reported that an Oklahoma
point to the vulnerability of the
court ordered a forty-three year
Bachelor of Science
11
long term care population, a rise
old gentlemen charged with first
degree in Business.
degree murder to a SNF despite
in the number of offenders’ placeShe received her Juris Doctor, magna cum
records indicating that he posed a
ment in facilities12 and the difficullaude, from Stetson University College
13
ty of prosecution as justification
substantial risk of harm to others.21
of Law. She distinguished herself by refor drastic strategies. Opponents
APC also discovered over 1,600
ceiving a Certificate of Concentration
fear that these strategies amount to
registered sex offenders currently
in Elder Law. She was sworn in to the
14
“cruel and unusual” punishment
residing in American SNFs.22 Wes
Illinois Bar in 2011. She joined HUCK
as cases of recidivism in SNFs are
Bledsoe,23 APC’s founder, profiled
& BRISSKE, LLC and concentrates
rare due to the constant supervicurrent sexual offenders living in
her practice in elder law, probate, ession of residents by trained staff.15
SNFs with prior convictions 24
tate
and
trust
administration,
and
They further feel that notification
and found convictions or charges
wealth transfer and estate planning.
of facilities impinge on the offendof aggravated sexual assault,25 level
three sexual offenses,26 and rape,
er’s right to privacy.16
10 See generally Joseph L. Lester, Off to Elba! The Legitimacy of
Sex Offender Residence and Employment Restrictions, 40 Akron
L. Rev. 339 (2007) (Lester feels better solutions exist than
registration, notification and residency restrictions).
11 Duane Marsteller & Natalie Neyesa Alund, Loophole in Sexual
Predator Law, Bradenton Herald 1 (Jan. 13, 2008) (citing Judy
Cornett, executive director of Safety Zone Advocacy, who
acknowledges there are offenders who target vulnerable
adults and advocates for background checks on SNF residents);
see also, Chris Casteel, House Panel Hears of Rest Home Rape
Oklahoma Bill Tries to Keep Predators Out of Nursing Facilities,
5A Oklahomian (July 24, 2008) (citing Tom Coble speaking
on behalf of The American Health Care Association, in
representing while the cases may be “rare”, the nature of the
crime warrants protection).
12 A Perfect Cause, Reports, Predators in America’s Nursing Homes:
Registered Sex Offenders Residing in Nursing Homes 2005 Report,
http://www.aperfectcause.org/APerfectCause-PredatorsinAm
ericasNursingHomes-2005 Report.pdf 2 (last accessed April 2,
2010).
13 David Jackson & Gary Marx, Nursing Homes Toll: 86 Sex Cases,
1 Arrest, 3 Chi. Tribune (Jan. 27, 2010) (citing Ronald Costen, a
former criminal prosecutor and director of Temple University’s
Protective Services Institute).
14 LaFond, supra n. 7, at 95.
15 Marsteller & Alund, supra n. 11.
16 Kimberly B. Wilkins, Sex Offender Registration and Community
Notification Laws: Will These Laws Survive? 37 U. Rich. L. Rev.
1245 at 1253.
17 Dayton, Wood & Belian 1.
18 Wes Bledsoe, A Perfect Cause, www.aperfectcause.org (last
updated 2008).
19 Frank B. Hobbs, The Elderly Population, http://www.census.gov/
population/www/pop-profile/elderpop.html (last updated
July 8, 2008).
20 Wes Bledsoe, A Perfect Cause, www.aperfectcause.org (last
updated 2008).
21 Wes Bledsoe, A Perfect Cause, Predator Press Releases, Murder
Suspect and Felon, 43 Ordered to Live in Nursing Home, http://
www.aperfectcause.org/predatorpress.html (last updated
2008).
22 H.R. Small Bus. Comm., Subcomm. Investigation & Oversight,
Impact of Predators in Long-Term Care on Small Business
Operators, 110th Cong. 1 (July 23, 2008).
23 News agencies have called Wes Bledsoe “The Nursing Home
Watchdog.” H.R. Small Bus. Comm., supra n. 22, at 1. Due to his
studies on of sexual predators residing in SNFs, the Government
Accountability Office began a Federal investigation. Wes
Bledsoe, About, Our Founder, http://www.aperfectcause.org/
founder.html (last accessed April 23, 2010). In his signing of
the OK bill to build a separate facility for sexual offenders,
Governor Brad Henry recognized Bledsoe as the driving force
of the bill. Id.
24 Bledsoe, Ongoing Reports 2004-2006, supra n. 4, at 2.
25 Id. at 7. Tyrone Barber was a fifty-four year old living in a
Chicago, Illinois facility. Id.
26 Id. at 12. John Enos was convicted of rape and classified as a
level 3 offender, posing a high risk of recidivism. Id.
June 2012
39
sex abuse and unlawful sexual penetration.27 Due to the
publication of Bledsoe’s reports and the resulting worry it
developed among Americans, the Government Accountability Office (GAO) conducted a study for Congress in
which it reported 700 registered sex offenders living in
SNFs in 2005.28
While neighboring facility residents are most vulnerable, facility employees, volunteers and visitors
are also placed at
risk.29 As Bledsoe
stated, “When
you put predators in with the
prey, somebody’s
going to get
bit.”30 APC uncovered over sixty cases of documented
sexual offenses in skilled nursing facilities by former convicts.31 If the United States legislature, as representatives of
the American people, who are aging at a rapid pace, does
not take steps to prevent future sexual offenses by offenders
residing in SNFs, the problem will escalate.
Purpose of Notification Statutes: Protect and Defend
Children. Current sexual offender notification, registry
and residency restriction statutes were enacted in direct response to sexual crimes upon children.32 In 1994, Congress
passed the Jacob Wetterling Crimes Against Children and
Sexually Violent Offenders Act requiring all states to create a sex offender registry.33 Jacob’s Act provides guidelines
for registration programs, including a compulsory ten-year
registration for any sexually violent offense and the designation of sexually violent predator attaches a mandatory
lifetime registration.34
Congress decided that the registration requirements
provided for in Jacob’s Act were not enough to protect
children, and as a result amended Jacob’s Act with Megan’s
Law.35 This legislation added the requirement that states
must provide communities with notification when a sexual
offender is released into the community if necessary for their
protection. 36 The premise behind notification statutes is to
empower communities with knowledge of a sexual offender’s whereabouts,
thereby
protecting them.37
President Bush
further
passed
the Adam Walsh
Child Protection
and Safety Act of
2006.38 Among
other things, this
Act created a national registry database available to United
States citizens on the internet.39
While sexual offenders have argued that notification
statutes and residency restrictions violate their constitutional rights,40 these statutes have been upheld41 as required under public policy to protect the public safety.42
Bill Clinton proposed that the aging of
the Baby Boomers is “one of the central
challenges of the coming century…”
27 Id. at 25. Robert Lovingier was previously charged as a fugitive
from justice. Id.
28 Id.
29 Ziva Branstetter, More Sex Offenders Are Found, A17 Tulsa World
(July 31, 2005).
30 Marsteller & Neysa Alund, supra n. 11.
31 H.R. Small Bus. Comm., supra n. 22, at 4.
32 42 U.S.C.A. §14071 (West 2006).
33 42 U.S.C.A. §14071 (West 2006); see also Top Ten Reviews, Sex
Offender Registry Review, http://sex-offender-registry-review.
toptenreviews.com/index2.html (last accessed April 19,
2010) (provides a state-state-by-state analysis and rating of
information is provided to the public, search factors available
to search with, the types of risk indicators each states utilize
and any additional features the registries offer).
34 42 U.S.C.A. §14071(b)(6) (West 2006); see also U.S. Government
Accountability Office. (March 2006). Long Term Care Facilities:
Information on Residents who Are Registered Sex Offenders or Are
Paroled for Other Crimes, 3 (Publication number GAO-06-326) at
9.
40
DCBA Brief
35 42 U.S.C.A. §14071 (West 2006).
36 42 U.S.C.A. §14071(e)(2) (West 2006). A state is not incompliance
with the necessary community notification if they only inform
law enforcement, government officials, victims or prospective
employers of the offenders release into the community. Final
Guidelines for the Jacob Wetterling Crimes Against Children
and Sexually Violent Offender Registration Act, as Amended,
A.G Order N.2196-98 at 13.
States do retain discretion in formulating the circumstances
when information will be provided to the community and to
what extent. Id. at 582.
37 Hope E. Durant, Student Author, A Message to Sex Offenders:
Sex Registration and Notification Laws Do Not Infringe upon Your
Pursuit of Happiness, 26 J.Legis. 293 (2000) at 312.
38 42 U.S.C.A. §16901; Adam’s father, John Walsh, host of America’s
Most Wanted, has aided in the “take down” of 1,050 fugitives
and bring home fifty missing children. America’s Most Wanted,
About John Walsh, http://www.amw.com/about_amw/ john_
walsh. cfm (last accessed April 19, 2010).
39 42 U.S.C.A. §16918 (West 2006);
40 See generally, LaFond, supra n. 7, at 95-103; Wilkins, supra n.16,
at 1253-1276; Durant, supra n. 37, 298-312.
41 LaFond, supra n. 7, at 95; see also Final Guidelines for the Jacob
Wetterling Crimes against Children and Sexually Violent
Offender Registration Act, supra n. 36, at 575 (list of cases
including: Roe v. Office of Adult Protection, 125 F.3d 47 (2d Cir.
1997); Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997), cert
denied, 118 S.Ct. 1191 (1998); Doe v. Pataki, 120 F.3d 1263 (2d Cir.
1997), cert denied, 118 S.Ct. 1066 (1998); E.B. v. Verniero, 119 F.3d
1077 (3rd Cir. 1997), cert denied, 118 S.Ct. 1039 (1998); Artway v.
Atty Gen., 81 F.3d. 1235 (3d Cir. 1996); Doe v. Kelley, 961 F. Supp.
1105 (W.D. Mich 1997); Doe v. Weld, 954 F. Supp. 425 (D. Mass.
1996); State v. Pickens, 558 N.W.2d 396 (Iowa 1997); Arizona Dep’t
of Public Safety v. Superior Court, 949 P.2d. 983 (Ariz. App. 1997);
State v. Ward, 123 Wash. 2d 488, 869 P.2d 1062 (Wash. 1994)).
42 Id.
Offenders continue to challenge the statutes, contending
they rise to the level of cruel and unusual punishment prohibited by the Eighth Amendment43 because public awareness presents a chance that the offender may become the
target of retaliation.44 Consulting the legislature’s intent,
courts have continuously determined public safety45 and
child protection46 are valid state objectives.47
Extend Notification Statutes to Protect and Defend
Vulnerable Adults. In order for society to begin to protect our most vulnerable citizens, we must first value them
and recognize their susceptibility.48 Individuals are placed
in SNFs when they become frail and are no longer capable
of caring for themselves. The Older Americans Act, passed
in 2006, defines frail with respect to an individual over age
sixty as unable to perform at least two activities of daily
living (ADLs) without assistance or “due to cognitive and
mental impairment requires substantial supervision because the individual behaves in a manner that poses a serious health or safety hazards to the individual or to another
individual.”49
Whether placed due to age, physical or mental conditions, SNF residents are a vulnerable and frail population.50
Most elderly victims of sexual assault are female and postmenopausal which results in a change in the body causing
tissue and skin to become fragile, thereby making a sexual
crime more physically damaging.51 A diagnosis of dementia indicates cognitive deficits. The elderly victim may lack
the ability to fight off an offender physically, mentally or
as a result of a combination of both.52 If a sexual assault
has occurred it may be difficult for the facility staff or the
resident’s family to correlate common signs of sexual abuse
such as complaints of pain, mistrustful behaviors, night-
mares or symptoms of depression, with the assault due to
the numerous illnesses from which residents suffer.53 As a
vulnerable group, SNF residents rely on facility staff to attend to their needs and provide a dignified, quality of life.
Increasing their defenselessness, SNF residents are “captive,” in that they cannot leave the facility, and their mobility within the facility is limited. Victims literally live next
to their attackers.54 A resident in a SNF cannot simply begin to lock her door at night or add a deadbolt.55 Residents
share rooms and bathrooms. The increased vulnerability of
a SNF resident substantiates the need for notification of
the facility when a former offender is to be admitted.
Illinois Law Requires SNF’s To Check Criminal History and Implement Precautions. While most states have
taken no steps to insure the safety of facility residents,
Illinois is one of the few that have include SNFs in the
definition of community for required notification.56 In
53 Id. at 701.
54 Jackson & Marx, supra n. 13.
55 H.R. Small Bus. Comm., supra n. 22, at 8.
56 210 Ill. Comp. Stat. 45/2-201.5(a) (current through P.A. 96-855 of
2010 Reg. Sess.).
43 U.S. Const. amend. VIII.
44 LaFond, supra n. 7, at 95.
45 Durant, supra n. 37, at 301 (citing Roe v. Farwell, 999 F. Supp 174
(D. Mass. 1998)).
46 Id (citing People v. Adams, 581 N.E.2d. 637 (Ill. 1991)).
47 Id (discussing court decisions of Doe v. Poritz, 662 A.2d. 367 (N.J.
1995) and Lanni v. Engler, 944 F. Supp. 849 (E.D. Mich 1998).
48 Giardino et. al., supra n. 9 at xiii.
49 42 U.S.C.A. §3002 (West 2006). Congress stated the objectives
of this act include providing a range of services to older citizens
as needed and to provide services giving priority to those most
economically and socially needed. 42 U.S.C.A. §3003 (West
2006).
50 Centers for Medicare and Medicaid Services, State Operations
Manual: Appendix PP—Guidance to Surveyors for Long Term Care
Facilities 182-183 (Dec. 2, 2009).
51 Giardino et. al., supra n.9, at 701.
52 Id.at 381. Experts have identified three ways in which
offenders attach weaker older adults. Id. at 382 The first is
the “confidence” approach in which the offender acquires
the victim’s confidence using words. Id. The next is the “blitz”
approach in which the offender uses force against the victim.
Id. The last approach is one of “surprise” leaving the victim
unsuspecting or unconscious. Id.
June 2012
41
the signing of Illinois’ notification statute, one of the most
comprehensive in the nation, Governor Rod Blagovich
said, “There is nothing more vile than sex offenders.”57 This
law charges SNFs to request criminal history background
checks on all admissions within twenty-four hours of arrival.58 If the results are reported inconclusive, the facility
must conduct a fingerprint check and is responsible for
arranging for fingerprints to be taken at the facility.59
Illinois law goes beyond notification to the facility
through the utilization of a Criminal History Analysis. If
the facility background check reveals a sexual offense, the
facility must fax the resident’s name and criminal history
information to the Department of Public Health (DPH)
which is then required to conduct a Criminal History
Analysis.60 In this analysis, the DPH completes a com57 Office of the Governor, Press Release, Governor Signs Law
Requiring Lifetime Supervision for Most Dangerous Sex Offenders
(July 10, 2005) (can be found at http://www.idph.state.il.us/
public/press05/7.10.05.htm).
58 210 Ill. Comp. Stat. 45/2-201.5(a) (current through P.A. 96-855 of
2010 Reg. Sess.).
59 210 Ill. Comp. Stat. 45/2-201.5(b) (current through P.A. 96-855 of
2010 Reg. Sess.).
60 210 Ill. Comp. Stat. 45/2-201.5(c) (current through P.A. 96-855 of
2010 Reg. Sess.).
prehensive assessment of the convicted offender and his
crime61 to administer a Risk Analysis.62 The Risk Analysis
details security measures and precautions the SNF must
put into practice.63 The facility incorporates the Criminal
History Analysis Report into the sexual offender’s individualized plan of care.64 The working relationship between
the DPH and admitting SNF provides the facility with
necessary notification to incorporate precautions into an
effective care plan for the offender, while appropriately
considering the offender’s rights by reevaluating his risk
and, in turn, ensuring the protection of all residents including the offender.
61 Id.
The Criminal History Analysis specifically includes: a
consultation with the offender’s parole officer and convicting
prosecutor’s office; a review of the statement of facts, police
report and victim impact statements; an interview of the
sexual offender; a consultation with the facility administrator
or medical director of the admitting facility. Id. They must
also consider the entire criminal history of the sexual offender
and review any evaluations completed. Id. If there are none
conducted, one must be requested and reviewed. Id.
62 210 Ill. Comp. Stat. 45/2-201.5(d) (current through P.A. 96-855 of
2010 Reg. Sess.).
63 Id.
64 IL Stat. 45/2-201.6(f) (current through P.A. 96-855 of 2010 Reg.
Sess.).
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Informing Unnecessary Parties under Illinois Law
Goes Too Far. Illinois is proactive in protecting their SNF
citizens; however, some of their notification strategies are
to the detriment of an offender’s rights. Illinois ventures
beyond criminal background checks and the Criminal History Analysis to require facilities to provide residents, both
prospective and current, along with facility employees, with
written notice of their right to inquire into the possibility
of sexual offender residents.65 They must prominently post
a notice in the facility with a statement that sexual offender
information can be obtained from the Illinois State Police.66
While these steps are genuine in their purpose to protect
SNF residents, notifying fellow residents of the admittance
of a former sexual offender does not serve the purposes notification statutes were originally enacted to accomplish.
Passion to protect the vulnerable often drives legislatures
to take fanatical steps, and in the process the rights of the
sexual offender are often ignored.67 At some point, “enough
is enough” and as a society we must recognize that people
make mistakes and that all sexual offenders do not possess
the same risk of recidivism.68
While the United States Constitution does not specifically enumerate a constitutional right to privacy, the Supreme Court has identified that its provisions suggest the
right exists.69 In Griswold v. Connecticut,70 the Supreme
Court found in the language and history of the Ninth
Amendment that the framers of the Constitution believed
United States citizen’s hold fundamental rights not specifically cited in the Bill of Rights.71 Justice Douglas’ majority
identified in the First Amendment “a penumbra where privacy is protected from governmental intrusion” including
privacy in association.72
In conjunction to a sexual offender’s constitutional right
to privacy, states should recognize Congress has previously
enacted laws to protect a resident’s privacy. The Health
Insurance Portability and Accountability Act (HIPAA),
passed in 1996, sets forth conditions of the level of privacy
residents are entitled to.73
Once the sexual offender is admitted to a SNF, the Nurs65 210 Ill. Comp. Stat. 45/2-216 (current through P.A. 96-855 of
2010 Reg. Sess.).
66 Id.
67 Lester, supra n. 10, at 339.
68 Id.
69 Griswold v. Conn., 381 U.S. 479 (1965).
70 Id.
71 Id. The Ninth Amendment provides, “The enumeration in
the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people.” U.S. Const.
amend. IX.
72 Griswold v. Conn., 381 U.S. 479, 482 (1965). In Justice Goldberg’s
concurrence, he found the Ninth Amendment also indicated a
right of privacy. Id.
73 Government Accountability Office, supra n. 34, at 5.
44
DCBA Brief
ing Home Reform Act catalogs specific rights enjoyed by all
facility residents.74 It provides that residents have “a right
to a dignified existence, self-determination, and communication” in and outside of the facility.75 This extends to
privacy in accommodations, medical treatment, written
and telephone communications, visits and meetings from
family and participation in resident groups.76 Explicitly
stated is the right to confidentiality of medical and personal
records.77 The State Operations Manual, published by the
Centers for Medicare and Medicaid Services (CMS) to provide interpretive guidelines for long-term care facilities, interprets a right to privacy to include all medical, social and
financial records as they exist in any form.78
Notification statutes requiring facilities to inform other
residents, or their families, breach the resident’s right of
privacy provided by federal law. Only institutions and individuals who legitimately need to know should be given
offender registration information.79
Pre-Admission Background Checks & Effective Care
Plans: “Knowing is Half the Battle.” Congress must mandate SNFs complete pre-admission background checks and
the results must be incorporated into an effective care plan.
“Knowledge gives us the power to intervene” and minimize
the horrific effects of sexual crimes.80 Armed with the ability to identify sexual offenders, facilities may wish to develop a sexual offender protocol as they do for residents with
multiple falls81 or other illnesses. In order for the facility to
implement a protocol or precautionary plan, however, they
must first be aware the risk exists.
Opponents of notification argue the effectiveness of the
strategies and propose stronger education of our children
on how to act as a superior solution.82 Education would
not be effective for SNF residents suffering from dementia
74 42 C.F.R. §483.10 (Westlaw current through April 16, 2010).
75 Id.
76 42 C.F.R. §483.10(e) (Westlaw current through April 16, 2010).
77 Id.
78 Centers for Medicare and Medicaid Services, supra n. 50, at 30.
79 Lafond, supra n. 7 at 123. LaFond believes anyone in the state
who does not need to know an offender’s information should
not be allowed to access a Web site to obtain it. Id.
80 Giardino et. al., supra n. 9, at xiii. Giardano wrote a book defining
the problem of sexual assault and discussed treatment and
interventions to spread knowledge to mandatory reporters
and healthcare officials to ensure better results for those
victimized. Id.
81 Kansas Department on Aging, Provider Resource Site, Resident
Assessment Protocol: Falls, http://www.aging. state.ks.us/
AdultCareHomes/BestPractice/Falls/Resident_Assessment_
Protocol.pdf (last accessed April 18, 2010). The Kansas
Department on Aging provides guidelines to best handle
residents at risk of falling. Id. Federal legislation offers no
guidance on the supervision of residents with prior convictions
of any type. Government Accountability Office, supra n. 34, at
5.
82 Lester, supra n. 10, at 372.
and Alzheimer’s as they affect cognitive abilities, preventing
a resident from understanding why she should act in the
directed manner or to remember the steps she was told to
take.
Knowing is Only Half the Battle, The Other Half is
the Care Plan. The Omnibus Budget Reconciliation Act
of 1987 (OBRA) included the Nursing Home Reform
Act which provides the cornerstone of SNF care in facilities’ obligation to provide services to “attain or maintain
the highest physical, mental and psychological well-being”
of residents.83 In order to meet the cornerstone, facilities
implement an individualized plan of care upon admission
for each resident who is assessed periodically thereafter.84
While the NHRA requires an admission assessment,
it does not mandate the use of a standardized assessment
tool.85 Compiling the information from the assessment
conducted by all disciplines in the facility,86 the individual plan of care addresses the resident’s medical, nursing
and psychosocial needs.87 In its interpretation, the Center
for Medicare and Medicaid provides the facility is responsible for considering all of the residents’ needs.88 Currently,
resident assessments do not gather information about past
criminal history.89 In formulating individual plans of care,
residents would be well served by requiring SNFs to consider past convictions as it would result in a more comprehensive physical, mental and psychological examination
and therefore a more thorough plan of care including the
necessary rehabilitation a sex offender may need.
A SNF is already required to determine a resident’s needs
on a case by case analysis. It follows that a risk for future
violence or sexual conduct should be conducted. In deciding the risk of violence or sexual conduct, the facility can
consider the offender’s physical and mental abilities, his
current health and diagnoses including chance for recovery
and whether these increase or decrease the risk to others.90
If the risk is not individually identified, a presumption of
high risk may lead to unnecessary denial of admission or seclusion of all offenders who may no longer pose any risk.91
The GAO study also concluded it may be more appropriate
to focus on residents’ individual behaviors than prior convictions.92 In fact, an Ohio facility specializing in residents
with various behavior issues houses many sexual offenders
83 42 U.S.C.A. §1395i-3(b)(2)(West 2006).
84 Id.
85 Government Accountability Office, supra n. 34, at 8.
86 Id.
87 42 C.F.R. §483.20(k) (Westlaw current through April 16, 2010).
88 Centers for Medicare and Medicaid Services, supra n. 50, at 182-
183 (interpreting 42 C.F.R. §483.20).
89 Government Accountability Office, supra n. 34, at 6.
90 Id.
91 Id. at 28.
92 Government Accountability Office, supra n. 34, at 2.
and has fewer problems with sexual offender residents than
from residents with other behavior problems.93
There will be instances in which the conducting of a
criminal history background check will reveal that a former sexual offender is not appropriate for SNF placement.
Despite an offender’s physical limitations, facilities must
recognize that he may still pose a great threat to other residents.94 If the facility finds the offender’s behavior puts other residents’ safety in danger, the offender can be transferred
or discharged.95 If the offender poses a high risk or is exhibiting sexually violent behaviors that cannot be controlled, it
may be a more appropriate placement to have them civilly
committed rather than placed in a SNF. Many states currently have civil commitment statutes in place.96
Conclusion. “Providing long term care for those who
have any type of criminal past is a critical societal issue, the
solution for which must encompass not only health care
providers and their patients but also law enforcement and
our health care oversight federal and state agencies,” Tom
Coble, representative of American Health Care Association, told the House Small Business Committee.97
By mandating that facilities conduct pre-admission
background checks upon admission of all residents, facilities will be empowered with the knowledge necessary to
ensure that their residents receive high quality care in a safe
environment. It provides the proper balance between the
rights of residents to maintain their dignity while allowing facilities to provide offenders with the privacy they are
entitled to. The horrific tales of vulnerable residents being
assaulted by another resident do not need to continue to
be told. As Congress has made a difference in the lives of
children, so can they make the same difference in the life of
SNF residents, and they must. □
93 Id. at 17.
94 H.R. Small Bus. Comm., supra n. 22, at 5.
95 42 C.F.R. §483.12(a)(iii) (Westlaw current through April 16, 2010).
When a facility wishes to transfer a patient, they must adhere
to a strict formula including 30 days notice in writing, physician
documentation of the reason and discharge information of
the date, to where and the reasons for discharge. 42 C.F.R.
§483.12(a) and (b) (Westlaw current through April 16, 2010).
A facility can transfer a resident if (i)the facility can no longer
meet the resident’s needs, (ii)the resident has improved and
no longer requires skilled care, (iii)safety of other individuals is
endangered, (iv)the health of other individuals in the facility is
endangered, (v)the resident has not paid their bill and (vi) the
facility closes down. 42 C.F.R. §483.12(a)
96 W. Lawrence Fitch & Debra A. Hammen, The New Generation
of Sex Offender Commitment Laws: Which States Have Them
and How Do They Work?, in Bruce J. Winick & John Q. LaFond,
Protecting Society From Sexually Dangerous Offenders, 27, 28
(Am. Psycho. Assn. 2003).
97 Susan Feeney, American Health Care Association, Long Term Care
Leader Calls For National Database of Sexual Offenders, www.
ahacancal.org/News/news_releases /Pages/23Jul2008.aspx.
(July 23, 2008).
June 2012
45
Features
The Honorable Robert E. Douglas 48
By Sean McCumber
Plus
Legal Aid Update
Legal Aid
Annual Report 51
ISBA Update
Professional Conduct
Advisory Opinions 52
photo by Clarissa Myers Photography
June 2012
47
The Honorable Robert E. Douglas
By Sean McCumber
T
he most recent appointment
to Associate Judgeship in
DuPage County is the Honorable Robert E. Douglas. Growing
up, Douglas had a very communal,
neighborhood style of living on the
South side of Chicago, where he lived
until age fourteen. He attended a
Catholic grammar school and had
a strong family upbringing. As he
was entering high school, his family
moved to Carol Stream, Illinois and
he attended Glenbard North High
School. While in high school, he
was a good student who also became
involved with the theatre and drama
programs. Douglas comments that
he was an avid reader, a love that continues to this day, as evidenced by his
serving on the Carol Stream Board of
Library Trustees for 26 years.
After high school, Douglas attended the University of Illinois at
Urbana-Champaign, where he majored in political science and history.
In his sophomore year, he joined the
campus ROTC program.
When
asked why, Douglas explains, “I was
visiting a friend at Notre Dame and
he let me borrow his field jacket. I
thought that was cool.” When he
returned from the visit to that little
school in South Bend, he signed on
for a one-year program, with no further commitment. He also became
48
DCBA Brief
involved with the Pershing Rifles, a
national military fraternal organization on campuses throughout the
country. As he became close with
a core group of friends, in his junior
year, he signed up for the full ROTC
program. In 1979, he graduated
from Illinois and joined the United
States Army Reserve.
However, law school called to
Douglas, and he obtained an educational delay to his military service. When asked why he went to
law school, he explains, “I like logic
problems and I loved to read. I always looked up to attorneys. But
I said if I didn’t go to law school, I
have to go to graduate school so I
can teach.” He enrolled in DePaul
University College of Law in 1979.
It was in law school where Douglas
faced some of his initial challenges.
The first year was tough. Through
no slacking on his part, Douglas did
not fare well in his second-semester
Civil Procedure class, nor in his Torts
class. He recounts, “I did some soul
searching and was discouraged. Had
it not been for one of my professors,
Don Herman, I might have left law
school before my second year began.”
Professor Herman told Douglas not
to sell himself short, and encouraged
him to take Herman’s summer course
on Corporations. Douglas did that,
and reports that he went on to better academics for the rest of his law
school career. Douglas participated
in the Moot Court program, which
he states that he enjoyed very much.
While in his third year, he clerked
with a solo personal injury firm headed by Frank J. Mackey. It was also in
his last two years of law school that
he went full reserve with the Army
Reserve.
Upon graduation in 1982, Douglas took the Illinois Bar Examination,
but before the scores came back, he
had already been shipped to Fort McClellan in Alabama for duty. It was
here that his law and military careers
joined. He received notice that he
passed the bar, but he could not return for the swearing-in ceremony.
He did arrange for his swearing in by
his commanding officer. With a very
strong pleased smile, he recounts, “It
was December 7, 1982. My CO
had set out a nice spread of food and
made a nice ceremony.” However, at
the time he passed the bar, there were
no positions available in the Judge
Advocate General’s (“JAG”) Corps.
Douglas feared that the Army Reserve would make him a military police officer (“MP”). Though his first
term of service was about to end, he
did end up in MP courses at Officer
Basic Training. However, he had the
opportunity to take extended coursework for the JAG basic courses. In
February 1983, he extended his term
of service.
It was also in February 1983 that
he joined the Chicago law firm of
French, Rogers, Kezelis & Kominiarek. He worked on personal injury
defense matters, including medical
malpractice, as well as some toxic
tort litigation, including asbestos cases. He later joined Dorothy French
(now a Circuit Judge, and Douglas’
judicial mentor) in the Wheaton Office of French & Rogers. In 1987,
Douglas embarked on a new path in
his legal career. The Illinois Tollway
Authority had begun preparing for
the creation of Interstate Highway
355, which meant it was in need of
real estate attorneys for the land acquisition. Though much of his trial
practice involved eminent domain
litigation, his work also included real
estate contract negotiation, as well as
other litigation and appellate practice. In the early 1990s the Authority was rocked by a scandal regarding
the sale of Tollway Authority land ,
which involved an executive director of the Authority. Douglas had
cooperated with police investigators,
only to essentially be stripped of his
authority and eventually terminated
from his employment. Later, he returned to the tollway authority, becoming head of the real estate division, and reporting to Chief Counsel
George Sotos, who later became an
Associate Judge in DuPage County.
In 2001, then First Assistant State’s
Attorney John Kinsella, now a Circuit
Judge in DuPage County, sought out
Douglas to join the DuPage County
State’s Attorney’s Office. On September 11, 2001, Douglas became an
Assistant State’s Attorney in the Civil
Division. In the office, he handled
condemnation actions relating to
Army Trail Road, as well as various
other road and public transportation matters. He also represented
the Finance Department for DuPage
County and represented the County
in defense of personal injury matters.
He remained with the State’s Attorney’s Office until his appointment to
the bench in 2012.
However, his private legal career is
only one small aspect of his legal career. As mentioned earlier, Douglas
began his military legal career at the
same time as his private career. In
September 1983, he joined the JAG
Corps. To outline his entire military
career would fill an entire issue of the
DCBA Brief, but there are many
important highlights that add depth
to his dedication to the law, and ul-
June 2012
49
timately his ascension to the bench.
In November 1997, Douglas was activated and sent to Bosnia-Herzegovina for nine months. While there,
he served as the Staff Judge Advocate
for the Combined Joint Civil Military Task Force, based in Sarajevo.
He had responsibility for the disciplinary and criminal proceedings for
soldiers from eighteen nations assigned to this command. While
handling these matters, he worked
with several governmental and
non-governmental organizations
to redevelop the rule of law in the
Bosnian Federation and the Republic of Serbska (Srpska). And
yet, while he handled individual
military matters and national legal reconstruction, he found time
to author legislation that allowed
refugees and displaced persons to
gain ownership of housing formerly in the hands of the then communist regime.
In February 2003, Douglas was
again called to serve, mobilizing as
part of Operation Iraqi Freedom for
approximately fifteen months as the
Command Judge Advocate for the
308th Civil Affairs Brigrade. While
there, he had primary responsibility
for reestablishing the court system
in the district that included Balad,
Dujail, and other cities. This monumental task included the vetting of
potential judges, creating a docketing
system, and overseeing the first criminal cases there since the regime of
Saddam Hussein fell. The 308th also
organized and oversaw city and district elections. During this time period, also as part of the 101st Airborne
Division, he negotiated and executed
business contracts and agreements
between the Iraqis and certain American contractors. Lastly, he worked
to help establish the district’s AntiCorruption Ministry and the Iraqi
50
DCBA Brief
Property Claims Commission.
From 2006 until 2009, when
Douglas retired, as required by military code, after 30 years of service, he
served as the Staff Judge Advocate for
the 84th Training Command (LR).
He managed the legal affairs of the
office that served 3000 soldiers nationwide, supervised the staff of one
Sean McCumber is
a partner at Sullivan
Taylor & Gumina,
P.C. in Wheaton,
Illinois and a longtime resident of
DuPage County.
He concentrates his
practice in family
law – divorces, paternity cases, child custody
disputes, domestic partnerships, guardianships, adoptions, and juvenile law. He is
active in the Family Law, Child Advocacy,
and Legal Aid Committees of the DCBA.
full-time attorney and three Reserve
attorneys. Over his storied career,
Douglas received many honors. He
was the honor Graduate from Office Basic Training. In 1998, he was
awarded the Joint Meritorious Commendation Medal. In 2003, he was
awarded the Bronze Star and a commemorative 101st Airborne Division
Operation Iraqi Freedom coin, each
awarded to him by Major General
David H. Petraeus. Douglas notes,
“[General Petraeus] is one of the
smartest men I’ve ever met in my
life.” Upon retirement at the rank of
Colonel in 2009, Douglas received
the Legion of Merit.
When asked about why he wanted
to become a judge, Douglas comments, “When I went to law school,
I envisioned myself on the bench.”
Aside from his qualifications in helping three nations recreate their judi-
cial systems, he adds, “I have good
skills at finding creative solutions to
ending litigation.” This is certainly
one of the benchmarks of any good
jurist – to find a way to resolve disputes between litigants with minimal
animosity using the resources of the
parties to achieve an acceptable result. Douglas notes that it will certainly not always be easy being a
judge, “The law is the law, even if
you do not always like what the
law says.” It is his work with reestablishing the rule of law of the
war-torn Balkans that colors this
view. To Douglas, the law has a
purpose and the orderly administration of that purpose is the laudable goal of the judiciary.
With the legal and military
career spanning over thirty years,
Douglas made time for family and
personal enjoyment. He met his
wife Mary at a party in law school;
she was a librarian, and they married in 1983. They had two children: their son Bill lives in Los Angeles and has recently embarked on
a career in the film industry; their
daughter Emily studies vocal jazz
in college. He states, “Both of my
kids are very talented, and none of it
comes from me.” He finds time to go
on an annual fishing trip in Canada
and to cook, where he has become
rather proficient at French cooking.
But most importantly, Douglas unwinds in the world of movies. He
reveals that he really enjoys the Andy
Hardy movies, noting that “he really
knew what to do.” But more revealing, Douglas acknowledges that he is
a big John Wayne fan. When pressed
for his favorite John Wayne movie, it
isn’t a military movie. With a slight
chuckle, he says, “It’s Rio Bravo.” □
Photos of Judge Douglas by Clarissa
Myers Photography
Legal Aid Update
Legal Aid
Annual Report
By Brenda Carroll
T
he DuPage Legal Assistance
Foundation presents its Annual Report each year to the
members of the DuPage County Bar
Association. The Foundation is a
501(c)(3) Corporation which oversees
the activities of the DuPage Bar Legal Aid Service. The members of the
Foundation have the following qualifications: (a) a licensed attorney in
good standing in the State of Illinois,
(b) membership in the DuPage County Bar Association, and (c) an interest
in the activities of and the purposes
for which this corporation has been
formed.
The DuPage Legal Assistance
Foundation was incorporated as an
Illinois not-for-profit corporation on
October 10, 1975 for the following
purposes: (A) To assist natural persons
and community organizations to secure legal protection against injustice
and to obtain due process of law and
the equal protection of the laws; (B)
To promote knowledge of the law and
of legal process, rights and responsibilities among the poor and the public
generally; and, (C) To study the use of
law and legal process to combat poverty and living conditions among the
poor and to provide counsel to natural persons and groups seeking these
ends.
The DuPage Bar Legal Aid Service
is located at the DuPage County Bar
Center, 126 S. County Farm Road,
Wheaton. Applicants seeking legal
assistance may call for a telephone
screening or “intake” daily, Monday
through Friday, from 9 a.m. until 2
p.m. Screenings are handled by Intake
Coordinator Lucy Cortez who asks
the applicant a series of questions to
determine if they meet the financial
and case-type guidelines for free legal assistance with our program. The
screening process generates an application which is returned by the applicant within 30 days complete with
the necessary verification required for
processing. If approved, the applicant
is assigned to an in-house staff attorney or DuPage County Bar Association member. Applicants who are denied may be referred to the Modest
Means or No Retainer programs.
Statistics for the fiscal years 2010
and 2011 are as follows having the
format of (2010 year, 2011 year):
Total screenings (1,800, 1,879); Designed and referred to (a) Lawyer Referral Service (463, 600), (b) Prairie
State Legal Services (0, 2), (c) Out of
County (6,7), (d) No Retainer (21,
13), (e) States Attorney’s Office (0, 0),
(f ) Public Defender’s Office (0, 0), (g)
Reduced Fee Panel (DCBA) (14, 25);
Accepted and referred to (a) Private
Attorney Involvement (142, 150),
(b) in-house attorneys* (403, 359);
Completed cases: (a) private attorneys
involvement (126, 115), (b) in-house
attorneys* (409, 386); Total Pro Bono
Hours: (a) private Attorney Involvement (2,258.40, 2,451.67). *Inhouse staff was reduced from three to
two staff attorneys on April 30, 2011.
The statement of financial position
for the year ending June 30, 2011 pro-
vides: Current cash and contributions
receivable of $130, 651, grants receivable of $0, prepaid expenses $6,450;
Total current assets of $137,101;
Total fixed assets $27,134, Total assets $164,235; Current liabilities: (a)
accounts payable of $2,483, (b) accrued expenses $6,124; Total liabilities $16,072; Unrestricted net assets
(operating) $148,072, unrestricted
net assets (board designated) $0; Total
net assets $148,072.; Total liabilities
and net assets $164,235.
The legal aid personnel are: Brenda M. Carroll, director & managing
attorney; Cecilia Najera, Melanie
MacBride, Scott Hollmeyer, staff attorneys; Robin Roe, office manager;
Renee St. Laurent, secretary, Lucy
Cortez, intake coordinator; Maribel
Rodriguez,
secretary/receptionist;
Scott Hollmeyer, Daniele Pfluger,
& Kishori Tank, volunteer attorneys;
Crystal Arias, volunteer bilingual
staff. □
Brenda Carroll has been the DuPage
Legal Assistance Director since 1988
and on the DCBA Board of Directors
since 2004. She earned her JD at IITChicago Kent College of Law in 1986.
She was admitted in Illinois and the
Northern District in 1986 and to the
U.S. Supreme Court in 2005. She
serves as an Officer/Secretary of the
Child Friendly Courts Foundation and
is a Past President and current Board
Member of the DuPage Association of
Women Lawyers.
June 2012
51
ISBA Update
photo © R EP3.com
Professional Conduct
Advisory Opinions
By James F. McCluskey
A
t the March meeting of the
Board of Governors of the
Illinois State Bar Association,
proposed professional conduct advisory opinions were presented by the
Professional Conduct Committee.
Three new opinions, along with a redraft of an older opinion, were presented. The opinions were set out as
follows:
First, Child sexual abuse is “substantially a bodily injury for purposes
of the Illinois Rules of Professional
Conduct.” Thus, an Illinois lawyer
must reveal information relating to
the representation of a client to the
extent that the lawyer reasonably believes necessary to prevent reasonably
certain child sexual abuse. The facts
of this opinion involve a lawyer who
was admitted in Illinois working as a
civilian lawyer providing legal assistance to military personnel and their
families at a federal military facility. A
divorce client disclosed to the lawyer
that the client’s spouse had committed various infidelities, including soliciting sex from minors. When the
lawyer advised the client to report the
matter to the law enforcement authorities, the client expressed a strong
reluctance to do so. The client also
claimed to lack proof of any actual
sexual assault of minors, although
some of the spouse’s emails (that the
client had seen but the lawyer had not
seen) indicated that the spouse was
interested in meeting children for sex.
52
DCBA Brief
The lawyer asked whether there
was a duty under the Illinois Rules
of Professional Conduct to report
this situation to the appropriate law
enforcement authorities. The ISBA
Professional Conduct Committee
considered RPC 1.6 (confidentiality)
and the lawyer’s obligation to reveal
client information. The committee
believed that the child sexual abuse
involved is “substantial bodily injury”
for the purposes of the Illinois Rules
of Professional Conduct, so an Illinois
attorney must reveal information relating to the representation of a client
to the extent that the lawyer reasonably believes necessary to prevent
reasonably certain child abuse. This
opinion was adopted by the Board.
The second ethical question involved a personal injury case in which
a lawyer was discharged by his client.
A second lawyer was retained. The
lawyers reached an agreement on the
division of a contingency fee in exchange for the first lawyer tendering
the client’s file. The second lawyer
subsequently advised the first lawyer that the complexities of the case
required that additional counsel be
retained, and that the second lawyer
was reneging on the agreement to
pay on the contingency. The second
lawyer reneged on the agreement and
stated that the agreement lacked the
consent of the client. The questions
presented to the ISBA Professional
Conduct Committee were whether
the first lawyer had a proper attorney’s lien for a contingency as well as
a retaining lien on the client’s file, and
whether the agreement with the second lawyer for payment of part of the
contingency fee case was enforceable.
The Committee considered whether
a client must consent in writing to a
division of fee agreement between the
second attorney and discharged attorney. The Committee recommended
adopting an opinion that a discharged
attorney may not share in the division
of fees with his former client’s successor, where the client does not agree in
writing to the arrangement.
However, the Committee could
not reach a definite conclusion as to
whether a retaining lien to enforce
payment of a client bill would be valid
in every circumstance. Rule 1.16(d)
of the Rules of Professional Conduct
requires a discharged attorney to “take
steps to the extent reasonably practiISBA Update
Continued on Page 54 »
James F. McCluskey, a principal of
Momkus McCluskey LLC, handles
a wide range of litigation. His areas
of expertise incorporate 30 years of
experience in contract, shareholder
disputes, real estate, partnership
dissolution, and professional liability
litigation. He is the 18th Circuit’s
Governor of the Illinois State Bar
Association and Past President of the
DCBA.
Dispute
Advisory
Services
The complete forensic
solution providing investigative
accounting, valuation and
damages analysis, fraud
examinations, and computer
forensics for matters in trial,
arbitration, and mediation.
Call Mary O’Connor, Partner,
today to learn how our team
can assist attorneys and
corporate counsel.
312.648.6652
www.sikich.com
ChiCago | DeCaTur | inDianapolis | naperVille
roCkforD | springfielD | sT. louis
HOURLY FEEONLY FINANCIAL
PLANNING
A unique alternative for
clients requesting a
referral to an advisor
SERVICES INCLUDE:
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• Retirement and investment planning
• Life, disability and long-term care
insurance needs analysis
• Low-cost, index-based 401(k) plan
set up for business owners and
professionals
• Planning for domestic relations clients
as divorce financial analyst or postdivorce planner (trained in
Collaborative Practice)
ALL SERVICES PROVIDED WITHOUT PRODUCT SALES OR ASSETBASED FEES
Member: Garrett Planning Network,
National Association of Personal
Financial Advisors, and Financial
Planning Association
54
DCBA Brief
» ISBA Update Continued from Page 52
cable to protect a client’s interest, such
as surrendering papers and property
to which the client is entitled.” Even
though the rule allows an attorney to
retain papers relating to the client,
the difficult question is whether the
client or the successor attorney may
arguably need the client’s file or his
papers to protect the client’s interest.
Since the Committee did not reach a
conclusion as to the retaining lien, the
Board requested that the Committee
prepare further comment on this issue. The Board deferred adopting this
rule.
The next recommended opinion
addressed whether a non-Illinois licensed lawyer may establish a partnership with an Illinois lawyer, establish
an office in Illinois, and work and live
primarily in Illinois, including advising Illinois clients. The Committee
decided that this would violate Rule
of Professional Conduct 5.5 concerning multi-jurisdictional practice of
law. The Committee also concluded
that the proposed practice would be
inappropriate even if conducted via “a
virtual office.” I should note that this
is an issue that has been brought up by
the American Bar Association, which
is in favor of multi-jurisdictional practice. The ISBA has consistently opposed this arrangement.
The last opinion requested was on
the issue of permissible withdrawal.
The inquiring lawyer represented a
client in a divorce proceeding. He
obtained what he felt to be a favorable
settlement. The client had a history of
psychiatric problems, and was irrational in discussions with the lawyer. The
client had consented to a proposed
judgment agreement but then refused
to sign the document. The lawyer did
not believe that the client was capable
of making decisions in her own best
interest. The client began to demand
nearly impossible tasks of the lawyer.
For example, although the client had
no funds to pay for future litigation,
the client wanted full custody of a
17-year-old child who moved in with
the spouse, and refused to live with
the client. The lawyer inquired as to
whether he was able to withdraw from
the representation in the divorce proceeding, and also inquired whether
he was able to suggest that the court
determine whether a guardian had to
be appointed without breaching the
confidentiality between the lawyer
and his client.
Under Rules of Professional
Conduct 1.16 and 1.14, it would be
professionally proper for a lawyer to
request permission of the court to
withdraw if the client’s actions are
rendering the lawyer’s fulfillment of
the employment difficult, or if the
client is demanding action which, in
the lawyer’s judgment, is contrary to
the law. Under the facts presented, it
would be professionally proper for the
lawyer to seek the establishment of
guardianship of a client when the information upon which the lawyer acts
was obtained by the lawyer through
the confidential relationship with the
client. The Board recommended approval of this opinion.
Although these opinions are advisory, the ISBA works closely with
the Illinois Attorney Registration
and Disciplinary Commission and
with the Illinois Supreme Court on
issues relating to professional conduct. Certainly, the Board’s adoption
of these opinions can provide a practitioner a guideline to follow when
faced with these ethical decisions.
One of the core values of the ISBA is
to assist the practitioner in the ethical practice of law. The members of
the Professional Conduct Committee
and the General Counsel of the ISBA,
Charles Northrup, can provide invaluable assistance to the practitioner
on such issues. □
Classif ieds
Rosemont Office Space
Two individual offices (11.5 x 12 approx.) available for rent in four-attorney
office suite. Office rental includes use of
conference room and kitchen area. Secretarial space for rent with office. Also
offering law firm conference room rental at $45 per hour, seating for 8+. Ample parking. Internet and phone wired.
Contact Maria L. Delia at (847) 2983886.
West Chicago / Dupage
Airport View
SUPERB LOCATION!...CPA firm
has unoccupied 306 sq. ft. (17’ x 18’)
professional office with view of DuPage
Airport. Viable private entrance. Share
conference room. Wired for internet
and telephone. Perfect for solo attorney
or accountant…$ 800/month…[email protected]
Legal Assistant/Paralegal
Legal Assistant/Paralegal for busy Aurora law firm. Experience necessary. Salary competitive. Please fax resume to
(630)897-1258 or e-mail to [email protected]
whittlaw.com
Lisle – Sublease AvailableArboretum Lakes
500 SF sublease opportunity in Class A
office building. Building amenities include: Atrium; Conference facility; Fitness Center; banking center; deli. Space
includes one executive office, one staff
workstation, state-of-the-art conference room and kitchen. Minimum 1
year lease. Contact Garrett Schultz at
(630) 317-0716, [email protected]
com.
Associate Attorney
DuPage County Law Firm seeks a fulltime Associate Attorney with 3 to 4
years of legal expertise in the areas of
civil litigation, family law and personal
injury. The successful candidate will be
responsible for interpreting laws, rulings and regulations; drafting pleadings,
legal memoranda, and briefs; conducting initial consultations with prospective clients; determining case viability;
•
•
•
•
•
conducting legal research; and accounting of billable and non-billable hours.
Significant courtroom experience, extensive discovery knowledge and negotiation skills are highly preferred.
Excellent communication, writing,
and client management skills with the
ability to manage multiple projects with
quick response time a plus. Interested
candidates should forward their Resume via facsimile to (630) 214-4888.
County Court Reporters, Inc.
Contact: County Court Reporters, Inc.
600 S. County Farm Road
Suite 200
• 630.653.1622
Wheaton, IL 60187
• 630.653.4119 (fax)
[email protected]
• www.countycourtreportersinc.net
To run your classified ad in this space,
please contact the DCBA or send your
content to: [email protected]
org. Pricing for regular and display
classifieds appears in the advertising
section of our website, dcbabrief.org
June 2012
55
Where To Be In June:
DCBA Golf Outing to be Held
in June at Willow Crest
A
helicopter ball drop fundraiser
will be held during DCBA’s
annual golf outing. The golf
outing will be held at Willow Crest
Golf in Oak Brook on Thursday, June
28.
The fundraiser involves dropping
balls on a green from a helicopter
Last year’s golfers, clockwise (LtoR): Matt
Pfeiffer, Jonathan Linnemeyer, Jerry Vinkler,
Tim Mahoney; Kathy Schmohe, Lynn Cavallo,
Irene Bahr, Colleen McLaughlin; Mark Schroeder, Glenn Ohlson, Steve Klein;
flying overhead. Each ball will have
a number. DCBA members and golf
participants can purchase numbers,
like tickets in a raffle, in advance.
The person purchasing the number
of the ball that lands closest to the
hole will win half of the funds raised
by the sale of ball numbers. The other half of the proceeds raised goes to
benefit DuPage Legal Aid.
Golf Participants will enjoy lunch,
golfing of course, a cocktail hour and
dinner with an
entry fee for
each participant
of $200. Participants interested in golf only
can register for
$160.
Those
interested
in
skipping golf
but partaking
in cocktail hour
and dinner only
can register for
$65. Please register online at
dcba.org or contact
Sue Makovec for
additional information or to be a
sponsor. □
The DCBA Brief is the Journal of the DuPage County Bar Association (“DCBA”). Unless otherwise stated, all content herein is
the property of the DCBA and may not be reprinted in whole or in part without the express permission of the DCBA. ©2012
DCBA. Opinions and positions expressed in articles appearing the DCBA Brief are those of the authors and not necessarily
those of the DCBA or any of its members. Neither the authors nor the publisher is rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. Publication Guidelines: All submitted materials are
subject to acceptance and editing by the Editorial Board of the DCBA Brief. Material submitted to the DCBA Brief for possible publication must conform with the DCBA Brief’s Writers Guidelines which are available at dcbabrief.org. Advertising
and Promotions: All advertising is subject to approval. Approval and acceptance of an advertisement does not constitute
an endorsement or representation of any kind by the DCBA or any of its members. Contact Information: All Articles, comments, criticisms and suggestions should be directed to the editors at [email protected]
56
DCBA Brief
Walsh, Knippen,
Knight &
Pollock
CHARTERED
ATTORNEYS AT LAW
EDWARD J. WALSH
JAMES H. KNIPPEN
THOMAS L. KNIGHT
BRADLEY N. POLLOCK
ADAM C. KRUSE
ELIZABETH M. RUSIN
ANNE K. KNIGHT
The Crossroads of Specialization
The Personal Injury Trial Lawyers and Municipal Lawyers at Walsh Knippen
Knight & Pollock, Chtd. always work together to secure the most beneficial results for
their clients. Recently, Ed Walsh and Adam Kruse went to trial in the Circuit Court of
Will County in the catastrophic personal injury case of Clucas vs. the City of Joliet. After
the first day of trial, the case settled for $3,300,000.00.
In addition to Personal Injury Trial Law, the Firm and Jim Knippen have
specialized in Municipal Law for 34 years. By combining their Municipal Law and
Personal Injury Trial experience, wisdom, and expertise, the Trial Lawyers at Walsh,
Knippen, Knight & Pollock, Chtd. were able to prosecute and resolve this complex
municipal construction personal injury case and guarantee and safeguard the personal and
financial future of their young client and his family.
Walsh, Knippen, Knight & Pollock, Chtd., once again, expresses its sincere
gratitude and thanks to all of the members of the DCBA who continue to entrust to us the
future of their severely injured clients and their families.
2150 MANCHESTER ROAD, SUITE 200 • WHEATON, ILLINOIS 60187
630-462-1980 • FAX 630-462-1984
WWW.WKKPLAW.COM • [email protected]
Presort Standard
U.S. Postage
PAID
Permit #1372
Carol Stream, IL

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