Monthly Archives: October 2012

Court considers applicability of Citizen Participation Act

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

The Citizen Participation provides that all ‘[a]cts in furtherance of the constitutional rights to petition, speech, association and participation in government are immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome.” 735 ILCS 110/15. The Citizen Participation Act seeks to extinguish Strategic Lawsuits Against Public Participation (SLAPPs) and protect citizen participation by:

a)      Immunizing citizens from civil actions based on acts made in furtherance of a citizen’s speech rights or right to petition government;

b)      Establishing an expedited legal process to dispose of SLAAPs both before the trial court and appellate court; and,

c)      Mandating a prevailing movant to be awarded reasonable attorney fees and costs incurred in connection with the motion.

The Appellate Court case of August v. Hanlon, 2012 IL App (2d) 111252 (Sept. 6, 2012) discussed the applicability of the Citizen Participation Act. August was a business agent and union organizer for Local 150 of the International Union of Operating Engineers. The defendant is an attorney whose services were engaged by Merryman Inc. Merryman had filed a lawsuit alleging that August and another individual solicited money from Merryman under false pretenses. The defendant gave a quote to a local newspaper regarding these allegations. The plaintiff believes that this statement was designed to falsely accuse the plaintiff of defrauding and stealing from the defendant’s client. The defendant filed a motion for summary judgment in the present case on the basis that the Citizen Participation Act granted him immunity. The defendant also filed for costs and attorney fees in bringing this motion. The motion for summary judgment was granted but the motion for sanctions was denied.

The plaintiff appealed the denial of his motion to reconsider and the defendant appealed the denial of sanctions. It was held by the Appellate Court that the Citizen Participation Act does not apply to the present set of facts. It was also found that the plaintiff’s objective in filing suit was not solely to interfere with the defendant’s right to petition, but to protect his reputation and goodwill in community, resulting from  the defendant’s allegedly false and defamatory statements. The court relied on the Supreme Court case of Sandholm v. Kuecker, 2012 IL 111443, which stated that the act intended “to target only meritless, retaliatory SLAPPs and did not intend to establish a new absolute or qualified privilege for defamation.” Sandholm ¶50.

The court in Sandholm found that “where a plaintiff files suit genuinely seeking relief for damages for the alleged defamation or intentionally tortious acts of defendants, the lawsuit is not solely based on defendant’s rights of petition, speech, association or participation in government. In that case, the suit would not be subject to dismissal under the Act.” Sandholm ¶45. The defendant bears the initial burden of proving that the plaintiff’s lawsuit was solely based on, related to, or in the response to the defendant’s acts in furtherance of their rights of petition, speech or association, or to participate in government. If the defendants met their burden, then, the burden would shift to the plaintiff to provide clear and convincing evidence that the act did not immunize them from liability.

In the present case it was found that the plaintiff’s objective in filing suit was to seek damages for the personal harm to his reputation resulting from defendant’s allegedly false and defamatory statements. The court found that the plaintiff’s complaint was supported by concrete examples, which were, in part, undertaken to protect the plaintiff’s reputation and goodwill in the community.

Therefore, it is clear that the act will not act as a blanket defense for all defamation cases. For the act to apply that the defendant failed to prove that the plaintiff’s complaint was based solely on the defendant’s exercise of his constitutional rights of petition, speech, association, or to participate in government. Then, and only then, will the burden shift to the plaintiff to provide clear and convincing evidence that the defendant’s acts were not covered by the act.

Leveraging Your Reputation: Find your audience

Tom Ciesielka is president of TC Public Relations (www.tcpr.net). Tom has over 25 years of marketing and public relations experience, working with individual lawyers and midsize law firms. He is also a former board member of the Legal Marketing Association in Chicago and is on the Public Affairs Committee of the Chicago Bar Association, where he has spoken at CLE programs. Reach him at tc@tcpr.net.

I speak to a lot of people who feel overwhelmed by all the social media, websites and other avenues out there that they feel are “required” for their promotional efforts. I totally understand the frustration and stress because I also find it hard to keep up with what’s new and important for my own work. I’ve talked to people who’ve said they’ve pretty much given up trying to do anything, and instead want to just focus on getting work done. However, now that we’re in the 21st Century, I would suggest that people not give up on promoting themselves, and find at least a couple ways to share their work with clients and colleagues because you really should keep finding ways to help your reputation, even if you don’t have much time.

Here is one way that will really help you focus instead of worrying about how you’re going to get involved in all the apps and websites out there: decide where your audience is.

Some people find much success with a blog on their own website because they get a lot of hits from people who discover their posts through online searches or when the posts are shared on other websites. They also like informing their clients about new developments in the legal system, giving advice or whatever else they think would help. Others find LinkedIn to be effective because they can create a group that addresses certain topics, while others seek out prominent legal websites and publications to get their name out there.

In order to target your audience effectively, you should think about who is really interested in what you have to say. Separating your personal and professional life online would help you zero in on which platform would best communicate your ideas. It might seem like a narrow approach, but you’ll have an audience that is dedicated, and you won’t feel like you’re spinning your wheels.

I recently saw a few examples of this: one of my clients was mentioned in an online article, then got many calls from people who were interested in their latest project. The same client decided to focus on Facebook for another promotional campaign, and they suddenly got several more members in their Facebook group who were very interested in that project, and even told their friends about it as well. Another client noticed that Facebook wasn’t an effective way to share information about some cases, so they posted press releases, blog posts and court filings on their own site, and noticed that they got more attention with their clients that way. I know people who get a lot of work through Twitter, and others who think Twitter is a dead end. I also know professionals who still send out newsletters and think it’s not professional or effective to find an audience on social media.

Basically, you have to choose what works for you and where your clients and readers will interact with you the most. Just focus on a couple effective outlets, and you will do well.

Editorial boards cling to last remnants of old media power

Debra Pickett is president of Page 2 Communications (www.page2comm.com).  A former newspaper columnist and television commentator, Pickett offers consulting and training services to law firms and lawyers who deal with the media.  She writes here each week on topics related to law and media.  To learn more, reach her at deb@page2comm.com.

There’s significant consensus around the idea that newspaper political endorsements don’t really matter.  Survey respondents pretty consistently tell pollsters that they take of the word of Oprah Winfrey or, should Oprah not be available, their other religious leader, far more seriously than they would an editorial from their local paper.  In a survey taken during the last presidential election, 69 percent of voters polled said newspaper endorsements have “no effect” on their vote.  Indeed, a number of major newspapers, including the Atlanta Journal-Constitution and, for a while, the Chicago Sun-Times, declared themselves to be out of the endorsement business all together.

Still, newspapers do make news.  After all, someone has to give the 24-hour cable guys something to talk about.  In the current presidential campaign, the endorsements of papers in battleground states have been considered newsworthy, as have a few “reversals,” such as the one by the Orlando Sentinel, which endorsed Barack Obama in 2008 and is now backing his challenger instead, and the surprising decision of the Salt Lake Tribune editors to pass over Utah’s “favorite adopted son,” Mitt Romney, in favor of the president.  There’s no concrete evidence that these editorials have changed anyone’s mind, but the Orlando Sentinel and Salt Lake Tribune pieces in particular have “gone viral,” circulating far beyond the papers’ regular readers and contributing to each candidate’s sense of momentum during the last weeks leading up to Election Day.

For this reason, the presidential candidates still seem to consider lengthy, in-depth interviews with newspaper editorial boards to be good investments of their time. 

But, for the rest of us, with a case to litigate or a matter before the Zoning Committee, is reaching out to a newspaper editorial board worth the effort?

Surprisingly, yes.

While voters in national elections typically are not influenced by newspaper endorsements, surveys show that on local issues – from the election of judges and city officials to popular referenda – citizens still trust newspapers as their key sources of information.

Making your case to a newspaper editorial board requires no small amount of effort.  First, you have to get on their calendar (one of few media relations tasks that is almost worth outsourcing to a specialized consultant).  Then, you’ve got to show up, in person, and devote an hour or more to briefing the board members on your issue, an experience something like offering oral arguments before the Supreme Court, but with coffee.  Then, after taking more detailed questions than you ever thought possible, you’ll leave the building with no sense of when, or even whether, the paper might run an editorial about your issue.

It’s a big investment of your energy, but, if it pays off (and the odds are pretty good that it will), it will be a huge boost to your credibility and a tremendous influence among folks concerned about your issue.  This is one area where the power of the old media still holds fast and, even better, can be amplified by new and social media, through posting and tweeting the positive editorial to additional audiences.

Recent law school graduate increases job prospects through ‘pipelining’

Margaret Frossard retired in 2010 after serving 13 years as a justice of the Illinois Appellate Court. She currently serves as the director of the Office of Professional & Engagement and teaches trial advocacy at The John Marshall Law School. She can be reached by e-mail at mfrossar@jmls.edu or by phone at (312) 427-2737, ext. 112.

As the director of the Office of Professionalism & Engagement, I meet regularly with students to get their input as to how The John Marshall Law School can improve our delivery of services.  Most recently the top concern expressed in those student meetings, particularly by 3Ls, is the need for assistance in their job search.  To that end, the Job Placement Initiative was created with very positive results.  Let’s check in with some of those recent graduates who found jobs with the help of the office.

A Conversation with Joe Kearney (’12) on Pipelining

Frossard: Joe, I know you were recently licensed after graduating from The John Marshall Law School and are currently a staff attorney for the Illinois Appellate Court. When did you begin your job search?

Kearney: It really wasn’t until the end of my 2L year that I knew the direction I wanted to take on the job front. Clerking for a judge was always of great interest, but I believed that I could wait until graduation to begin the search in earnest. It wasn’t until I met with you about a year and a half before graduation that I realized my plan might need more than a minor restructuring.

Frossard: Explain what you mean by “restructuring.”

Kearney: Perhaps a better word would be “structuring.” I remember, after vaguely explaining to you that I’d like to perhaps explore clerking after graduation, you noted that I had not yet interned for any judges and stressed the need to “pipeline” in connection with working toward a clerkship on the Illinois Appellate Court.  In other words, you told me to get an internship with an appellate court judge, which I was able to do during the summer of 2011, thanks to you.

Frossard: What did you learn from that internship?

Kearney: In addition to the great leap in substantive knowledge that I gained from Justice Bertina E. Lampkin that summer, I’d like to think that I also gained a great deal of relevant “soft” skills that are particularly useful to me at my current job.  For instance, I learned how the appeals process actually works on a day-to-day level, how the clerk’s office functions and where the offices of the various judges are located. Plus, there’s the added benefit of running into judges and clerks in the elevators and around the court. Pretty soon, a discussion about the weather can morph into a Q&A session about a newly delivered point of law, and a new connection is formed.

Frossard: In terms of your present job as a staff attorney, what skills does that job require?

Kearney: Writing, writing, writing … I’m expected to exercise a high level of care and deliver draft appellate orders, which are accurate, well-reasoned and concise.

Frossard: How did John Marshall prepare you for that job?

Kearney: I found John Marshall’s Lawyering Skills program to be top notch. I think that, thanks to the in-depth focus the school places on writing from the first semester, I was able to quickly gain a comfort level with legal writing skills. Of course, actually practicing law is a different ball game, and I literally learn more every hour of every day at my present job. However, it would be difficult for me to imagine better preparation at the law school-level than the broad-based yet tightly focused legal writing program that John Marshall offers.

Frossard: Any advice you can give recent graduates challenged by the current job market?

Kearney: Well, first of all, I truly feel fortunate every day that I have the option of going into work at the appellate court.  It’s a great place to be, and I don’t take that lightly by any means. I can also appreciate the frustration of being an unemployed lawyer, having been one myself from February 2012 until May 2012, after taking the bar. With that said, I would urge anyone who is searching for work to remain positive, which I know is sometimes a tall task as rent and loans loom. My No. 1 piece of advice is to stay involved every day — be it with The Chicago or Illinois Bar Associations. These types of associations offer great networking and practice area events. Also, make sure you stay connected with your law school. Professors are always happy to offer projects to graduates, and it’s a great way to feel like you’re contributing and working within the law. Set up coffee and lunches with attorneys from all practice areas. Timing is everything and if you meet enough people, you’ll learn of opportunities.

Kearney will be moderating a panel for students and alumni, titled “How to Get Hired,” on Tuesday, November 13, at noon in Room 300 at The John Marshall Law School.

To view previous blogs by Frossard, go to professionalism.jmls.edu.  Her next blog for Around the Water Cooler will be the second in a series of conversations with recent law school graduates, featuring a young lawyer who found that ”timing really is everything” in a job search.

Court continues conversation over civil liberties

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal-injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

The National Defense Authorization Act (H.R. 1540) prompted much discussion regarding civil liberties since President Barack Obama hesitantly signed the bill into law on Dec. 31, 2011. Obama issued a statement at the time in which he stated that he was signing the bill “despite having serious reservations with certain provisions that regulated the detention, interrogation and persecution of suspected terrorists.” Obama stated that the main reason he was signing the bill was because it authorized defense funding, crucial services for service members and their families and renewed vital national security programs.

The controversy surrounds Section 1021 of the act, which provides for the indefinite detention of a person suspected of colluding with a terror organization to threaten U.S. national security. The chief complaint is that a terrorism suspect would get just one hearing where the military could assert that the person is a suspected terrorist and could be put to prison without being formally charged. In defense of these provisions, Sen. Lindsey Graham, R-S.C., stated that “[t]hey (terrorism suspects) should not be read their Miranda Rights. They should not be given a lawyer. They should be held humanely in military custody and interrogated about why they joined Al Qaeda and what they are going to do to all of us.”

It has been argued that this section has two direct implications. The first is that the section is not limited to foreign citizens and so American citizens could be held under the provision. Secondly, the vagueness of Section 1021 could lead to an interpretation that journalists and political activists who interview or support outspoken critics of the Obama administration’s policies could be classed as “covered persons,” meaning that they had given “substantial support” to terrorists or other associated groups. Journalists stated that this was restricting their work overseas as their interviews and communications could be interpreted as substantially supporting or directly supporting groups engaged in hostilities against the U.S. Journalists stated that the provision violates their constitutionally-protected right to free speech.

Pulitzer-Prize winning journalist Chris Hedges challenged the act in the Southern District of New York (Hedges et v. Obama, U.S. District Court for the Southern District of New York, No. 12-cv-331). An injunction was awarded by the court preventing the president from exercising the extraordinary and extraordinarily unconstitutional powers granted to him in the act. The Obama administration filed an appeal immediately. On Sept. 12, 2012, Judge Katherine Forrest of the U.S. District Court for the Southern District of New York issued her opinion in favor of the permanent injunction. Forrest stated that that “Section 1021 lacks what are standard definitional aspects of similar legislation that define scope with specificity.” She stated that the act also lacks a requirement that for somebody to be found to be in violation of its provisions, the person must have acted with some level of intent or knowledge of wrongdoing.

In a recent development to this case, a decision handed down by the 2nd U.S. Circuit Court of Appeals on Oct. 2, 2012 granted the government’s motion for a stay. The court stated that journalists and activists are in no danger whatsoever of being captured by the U.S. military. The court stated that the statute does not affect the existing rights of U.S. citizens or others arrested in the U.S. It was also found that the wording of the district court’s injunction goes beyond the act itself to limit the government’s authority under the Authorization for Use of Military Force Act.

Nearly a year after the bill was reluctantly signed into law, we are still unaware as to the extent of the bill or whether it actually affects the rights of American citizens.

Children’s Product Safety Act protects consumers, retailers

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal-injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

The public usually becomes aware of a dangerous children’s product when the Consumer Product Safety Commission (CPSC) recalls a product. Very often, products will be on store shelves or in consumer’s homes by the time the CPSC recalls a product. Currently, there are no federal requirements for the posting of recall notices in stores or on websites where a product has been deemed dangerous to a child. Thankfully, to protect children, the Illinois attorney general, pursuant to the Children’s Product Safety Act (430 ILCS 125/1), requires that retailers remove dangerous products from their shelves and post recall notices in prominent locations in their stores.

The term “children’s product” has been defined as a product designed for use by or care of a child under the age of 9. 430 ILCS 125/10(a). This definition includes (but is not limited to) to cribs, car seats, beds, high chairs, strollers, walkers toys or play equipment. 430 ILCS 125/10(a)(i). This can also include food, drugs or medication that is designed to be used or consumed by children. The act states that a product is unsafe if a warning has been issued that the intended use of the product creates a safety hazard, the product doesn’t conform to applicable laws that regulate standards for children’s products or the product has been recalled for any reason. 430 ILCS 125/15(a).

The act places a number of requirements on a merchant once a product has been recalled or a warning has been issued about a product. 430 ILCS 125/17(b). Within three days of receiving the notice of recall or warning, a retailer must remove the product from its stores or website to ensure that the item cannot be sold. If an e-mail address or a shipping address was provided at the time of the purchase, the retailer must attempt to contact the purchaser with information regarding the recall or warning. Within five days of receiving the warning or the recall, the merchant must post the recall or warning notice in a prominent location within the store for a period of 120 days. If the product was sold online, the retailer must post a link to the recall or warning on their homepage within five days of receiving notice of the recall or the warning. The merchant notification responsibilities also apply to secondhand stores.

The penalty for not complying with the provisions of the act shall face a fine of $500 for each day that the retailer is violation. 430 ILCS 125/25.

Overall, the act provides protection for a retailer who complies with the requirements of the act against any claims of negligence by a consumer who may have been injured by a recalled product. The act also successfully finds the balance between providing adequate information to a consumer regarding the recall and placing an overly burdensome requirement on retailers to contact consumers.

Leveraging Your Reputation: Start small

Tom Ciesielka is president of TC Public Relations (www.tcpr.net). Tom has over 25 years of marketing and public relations experience, working with individual lawyers and midsize law firms. He is also a former board member of the Legal Marketing Association in Chicago and is on the Public Affairs Committee of The Chicago Bar Association, where he has spoken at CLE programs. Reach him at tc@tcpr.net.

Sometimes I speak to people who want a publicity home run right away. “I want to be in the New York Times,” they say, or on national TV, or some other big outlet, whether it’s important nationally or right here in Chicago. They assume that they’re ready for the big leagues and get frustrated when they don’t encounter such opportunities, even if they have never been in the media before. Some attorneys “luck out” by appearing in a major outlet early in their career or when they have no media experience at all. Those attorneys appear in major media without any experience probably because they are working on a case that is exceptionally newsworthy and the media wants to talk to someone closest to the situation to get the best information possible.

If you’re not working on something that is newsworthy but still want publicity, then you should start small. Not only will it build your “media dossier,” but it will allow you to practice speaking and communicating in such a way that by the time you reach the big leagues, you will be ready and will sound professional and polished.

For instance, if you’re not good at speaking in “sound bites,” then you will sound long-winded and people will tune out if you get the chance to be on TV or on a radio show. By dealing with a small outlet, even something as simple as a podcast or online video, you’ll be able to practice simplifying your message so that you will sound sharp by the time you make it to the “Today Show” or another national program (whatever your target show is).

Even being quoted in a publication takes practice. It’s important to train your mind to think in such a way so that you remain savvy yet give enough information so that a reporter will be satisfied with your answer, which will make you look good as well. After all, you have to be careful because once you make a statement, you can’t retract it. By allowing yourself to be interviewed by small, local publications or websites, you’ll get a feeling for what your boundaries should be when speaking publicly on an issue or your work.

I often notice that attorneys are great speakers, but when they speak in the media, they end up struggling with communication. That’s because the rules are different and you’re communicating with a different audience. So you have to be sure to get the media training you need and to practice anywhere you can. The best approach is to not assume that you’re ready and to seek out the small outlets to practice so that you’re ready to shine on a larger “stage.”