Monthly Archives: November 2012

Appeals court address “open and obvious”

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 Chicago Lawyer magazine and her column appears regularly in the Chicago Daily Law Bulletin. This week’s blog is written by Karen Munoz

“It would be impossible for the City to render the streets injury-proof.” This was the dictum recently handed down in the Illinois Appellate Court case of Ballog v. The City of Chicago 2012 IL App (1st) 112429. The case involved an appeal of the circuit court’s decision to grant the defendant summary judgment. The plaintiff argued that summary judgment was precluded on the basis that the condition which caused the plaintiff’s injury was not open and obvious and, even if it was open and obvious, the deliberate encounter exception applied.

The plaintiff sustained a fall and subsequent injury when crossing at the intersection of a newly-resurfaced street. The plaintiff was walking to attend a church service when the incident occurred. The plaintiff sustained the fall as a result of a gap of two inches that had been left between the newly-finished surface of the street and the beginning of the sidewalk. Construction at this location had been ongoing for six months and the plaintiff testified that during the construction, she would walk in the middle of the street instead of using the crosswalk at the intersection. On the date of the occurrence, there were no signs warning of construction. Plaintiff stated that she could not see the gap as she entered the intersection because the elevated center of the street obscured her view of the other side. However, the plaintiff had to cross a similar gap on the surface of the street at the corner where she began her walk across the intersection.

The appellate court discussed the open and obvious doctrine first. It was established through evidence that there was no dispute as to the physical nature of the condition of the crossing. The court stated that in such circumstances “whether a danger is open and obvious is a question of law.” The court also stated that the city can reasonably expect pedestrians will exercise reasonable care for their own safety upon confronting an open and obvious condition, making it unnecessary for the city to take additional precautions for the benefit of pedestrians.

The plaintiff relied on a number of cases in her assertion that the danger was not open and obvious. The court quickly distinguished said cases. The first two cases were distinguished on the basis that expert testimony was presented to raise the question of a factual issue, however, no such expert testimony was presented in the instant case. Another case was distinguished on the basis that there was a dispute as to the physical condition of the site of the occurrence. The court was influenced by the fact that the plaintiff safely traversed the same defect on the corner where she began to cross the street. The court ruled that she could then reasonably expect the same condition to exist at the other side of the cross walk.

This case is a useful example of the court’s interpretation of the extent of the duty on pedestrians to exercise reasonable care for their own safety when traversing an “open and obvious” condition.

Advertisements

Connect to the Holidays

Tom Ciesielka is president of TC Public Relations (www.tcpr.net). Tom has more than 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 serves on the Public Affairs Committee of the Chicago Bar Association, where he has spoken at CLE programs. Reach him at tc@tcpr.net.

Thanksgiving is behind us (hope you had a good one!), but of course, there are holidays throughout the year that can give you great opportunities for promoting yourself. This can be done through articles, media appearances, blog posts, social media, photos and more. Here are few tips to get you started:

Create a holiday calendar. Take a look at the official holidays listed on the U.S. government website (www.usa.gov/citizens/holidays.shtml), and decide which ones you would like to connect to. There are also numerous unofficial, or “odd” holidays, which you can also participate in, though some of those are corporate sponsored and others that may not be totally legitimate. There is one website that has been listing those holidays for several years, and they try to substantiate each holiday by linking to the source, so that’s a good place to start.

Decide on the legal angle. If you want to share your legal expertise, think about how you can discuss legal topics in connection with the holidays you’ve chosen. For instance, if you specialize in the retail industry, you can write a blog post about an effective legal disclaimer in customer emails. Or you can contact the media to make yourself available to discuss any legal issues surrounding Christmas displays in the public square. Think about your area of expertise and decide which holiday would best match the advice you want to give.

Go general. If you don’t want to discuss legal issues, you can connect yourself generally to various holidays by posting pictures that show how holidays are celebrated. For instance, you can post pictures of interesting Halloween decorations you’ve seen around town, since they seem to be more popular nowadays. Or if you cook something special for St. Patrick’s Day, you can post a recipe that you use to make delicious corned beef and cabbage. Another thing you can do is to give tips for fun New Year’s celebrations.

There are so many ways to promote yourself; all you have to do is take the time to brainstorm for ideas to think of what works best for you and your schedule. Happy holidays!

Attorneys in Transition: Avoid anchors and evil puppies

Nick Augustine is a freelance legal writer, broadcaster, publicity and business development strategist, and he teaches search engine optimization and social media. Nick writes legal industry columns for Chicago Lawyer magazine regarding business and career development. Nick is an alumnus of Marquette University and The John Marshall Law School, where he is an active alumni board member. @NickAugustinePR, @APIFCharity and Augustine Legal PR, Inc.

The legal industry is stressful enough without the added trauma of abusive people and their troubles. This week I came to terms with an anchor and learned these people are often wolves in sheep’s clothing.

Luckily, I have a therapist friend whose practice focuses on lawyers and professionals with anxiety and chaos in their lives. For me, this experience unearthed issues dating back to childhood.

I over compensated with the pursuit of perfection and success and learned to self-sabotage to avoid failure by way of forces I could not control. Life sure does not come with instructions and you do not always know when you are getting it wrong.

My advice might sound contrary, but for those of us in  “repair mode,” when you see abusive people and anchors, run away as fast as you can before they have a chance to bring you down.

When my friend at the ARDC helped me decide whether to cooperate in helping my anchor get help, she let me say no. If the anchor is bound to get their card pulled, they will do it on their own.

As professionals working to help others, we need to live and work in healthy and stable environments. When we try to save the scared puppy, and it keeps biting us, we need to wake up and get away from that evil puppy and accept we might not be able to help it.

I have everything to gain from getting as far away from evil puppies and anchors, as do you. Go forth in peace and sanity my Chicago lawyer friends.

Safeguarding Your Law Firm from Fraud

James Martin is senior manager at Cendrowski Corporate Advisors (CCA), a full-service financial consulting and litigation support firm with offices in Chicago and Detroit.

The risk of fraud is an omnipresent threat to any business organization and law firms are no exception.  In fact, the typical operating structure of law firms has made them more susceptible to fraudulent schemes.  The Association of Certified Examiners (ACFE) estimates that the typical business loses 5 percent of its revenues to fraud each year, which translates to a global annual fraud loss of $3.5 trillion.  While the numbers highlight the threat posed, there are simple procedures and safeguards that management can implement to mitigate the risks associated with fraud in a law firm.

The starting point to any successful attempt to minimize the risk of fraud is proper oversight by the managing partners.  There should be oversight at all levels of operations and continuous improvement of areas with weak controls.  This supervision should extend beyond just the accounting department and should encompass all areas, such as the IT department and individual partners.  Law firms are particularly vulnerable to fraud, and this can be attributed to several key factors.  Attorneys typically focus their attention on servicing their clients – not on a firm’s accounting. Moreover, the day-to-day operations usually will fall on the accounting staff within a firm.  Not only can fraudulent schemes be orchestrated by employees at all levels within a firm, firms must also be safeguarded against risks of fraud from external sources.

There is no magic elixir to make a law firm immune to fraud, but management can instill a culture and adhere to internal controls to reduce the opportunity for fraud. Management must have a clear policy in place.  Consistent with this principle, internal control guidelines should be explained upfront for each employee.  Ethical behavior is something that can never be stressed too much in creating a culture of compliance.  Firms should also have reporting mechanisms in place to receive anonymous tips, red flags and concerns.   These channels may range from reporting misconduct to one’s superior to an actual hotline. This can vary depending on the size or composition of the firm.

Creating the right culture is crucial, but continually improving oversight procedures must also be an objective in reducing the risk of fraud.  Bank accounts should routinely be reconciled along with an extensive review of all accounts receivable and payable. Firms should monitor employee behavior to discover red flags, such as an employee living beyond his or her means, addiction problems, or financial difficulties.  Firms should ensure a “separation of duties” as well.  Pursuant to this idea, different tasks should be assigned to different individuals and jobs should be rotated.  This is an effective way to make sure that an employee cannot conceal his or her own fraudulent activity.  Management must also have procedures in place to monitor for conflicts of interest of employees and clients.  In addition, firms should be proactive and have a screening process during interviews with all prospective candidates.

A firm’s risk management should consider both external and internal factors and their risk on a firm’s objectives.  Risk management must be about more than just insuring against known risks; it’s also about minimizing what could happen.  There is no definite way to ever be completely free of the risk of fraud.  However, by understanding this risk and taking appropriate mitigating actions, a firm can reduce its exposure to fraudulent activity.

Timing was everything in law school graduate’s job search

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 email 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. In my last blog, we checked in with recent law school graduate Joe Kearney on the advantages of pipelining in finding a job. In this column, we hear from another recent graduate on how timing can be everything in a job search.

An Interview with Alex Stamatoglou, judicial law clerk for Charles P. Kocoras

Frossard: Alex, you are currently clerking for the Honorable Charles P. Kocoras, U. S. District Court for the Northern District of Illinois. We met in the spring of 2011 when you were looking for career advice. You told me your “dream job” was to become a justice of the U.S. Supreme Court, but you thought you would begin with a clerkship for a federal judge. I recall that you were “pipelining” at the time we met by interning for a federal judge. However, that particular federal judge was not hiring. At that point, what did I suggest that you do?

Stamatoglou: You encouraged me to focus my efforts on meeting established professionals who were well-positioned to help me. As I realized during our chat, there is no substitute for having respected professionals vouch for you. You then mentioned that you were planning on meeting Judge Kocoras for lunch in the next week, and offered to pass my resume along to him. A week later you emailed me to let me know that Judge Kocoras wanted to meet with me. I called his chambers that day to set up a meeting.

Frossard: What was the result of that meeting?

Stamatoglou: Judge Kocoras and I spoke for over an hour. We discovered that we had a lot in common – roots on the South Side of Chicago, a common Greek heritage. And we’re both ardent baseball fans. Then we discussed my career plans and goals.

Frossard: Did you get hired?

Stamatoglou: Not right away, but toward the end of our meeting Judge Kocoras asked if I wished to be considered for a clerkship with him. I said that I would.

Frossard: What did I suggest?

Stamatoglou: You suggested that I keep in contact with the judge. I mailed Judge Kocoras a note thanking him for his time and his advice, and planned to reach out to him in a couple weeks.

Frossard: What happened next?

 Stamatoglou: Like they say, “timing is everything.” The very next week Judge Kocoras called me and informed me that he had a clerkship position available starting in April of 2012, and offered me a one-year clerkship. I was ecstatic.

Frossard: In terms of your present job, what professionalism skills are required?

Stamatoglou: As a clerk, I am always aware that my words and actions reflect on the court. In that vein, I must always act respectfully and courteously with litigants, attorneys, and court personnel. It is also important that I ably and efficiently perform my work duties.

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

Stamatoglou: The John Marshall Law School prepared me very well for my career. I obtained two externships through John Marshall’s externship program, which enabled me to learn how to be a professional by working with competent and respected attorneys. John Marshall has also been instrumental in helping me meet and learn from alumni through its various mentorship programs. Finally, Professor Bernabe’s Professional Responsibility class highlighted the duties that competent and professional attorneys must abide by, and prepared us by presenting a multitude of potential issues that attorneys often grapple with.

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

 Stamatoglou:

 1) Do well in school. For most of us, this means long hours with our noses buried in textbooks. While this requires a tremendous amount of sacrifice, potential employers regard your grades are the best indicator of your competence.

2) Put yourself out there. Regardless of how you do in school, establishing and maintaining relationships with successful and respected professionals is an effective way to learn of new job opportunities and to stand out from your fellow job applicants. It can never hurt to have people vouch for you.

3) Your reputation matters, even in law school. Maturity and competence are attributes that employers highly value. How you present yourself to your colleagues, professors and employers tells potential employers what kind of employee you might be.

4) Don’t give up! The job search can get pretty discouraging, and the depressed legal job market is a fact of life. Jobs are still out there; we just have to work harder to get them. This means more time in the classroom and library and more time spent harnessing our relationships for opportunities. But, it is imperative to never stop trying.

Frossard: When I asked Judge Kocoras if he had anything he would like to share with John Marshall students who may be interested in a clerkship, he left me with these words of wisdom:

“It is important to be persistent in your quest; things that are not available at some point may later open up. Employers value those they deem to be go-getters.”

To view previous blogs by Frossard, go to professionalism.jmls.edu.  Her next blog for Around the Water Cooler will be the third in a series of conversations with recent law school graduates, featuring a young lawyer who personifies the phrase, “if at first you don’t succeed, try, try again!”

Preserving evidence

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.

In Illinois, the general rule is that there is no duty to preserve evidence. Boyd v Travelers Ins. Co., 166 Ill.2d 188 (1995). Boyd outlined the following two-prong test to establish an exception to the no-duty rule:

a)      A plaintiff must show that an agreement, contract, statute, special circumstance or voluntary undertaking has given rise to a duty to preserve evidence on the part of the defendant.

b)      A plaintiff must also show that the duty extends to the specific evidence at issue by demonstrating that a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action. (Id. at 195)

The case of Martin v. Keeley & Sons, Inc., 2012 IL 113270 (October 18, 2012) recently discussed the preservation test. The case concerned an incident where several of Keeley’s employees were involved in an incident when an I-beam they were standing on while working, collapsed causing the workers to fall into the creek below. After the incident, an engineer for Illinois Department of Transportation (IDOT) and a representative from Occupational Safety and Health Administration (OSHA) inspected the site. The day after, Mr. Keeley asked his staff to destroy the beam. Keeley later testified that he ordered the beam to be destroyed as he believed a replacement could be manufactured more quickly if the manufacturers had the steel embeds. He was led to believe that the beam needed to be removed to prevent ‘scouring’ and he believed that the company had fulfilled its obligations to IDOT and OSHA.

The present case arises out of a suit filed against Keeley by those injured, alleging that Keeley owed a duty to preserve the beam as evidence in potential litigation and because the evidence was destroyed, they were unable to prove their underlying claims against the manufacturers and designers of the beam. The manufacturers and designers filed cross claims alleging that the destruction of the beam prejudiced their ability to defend the claims being made against them. The circuit court found that Keeley had no duty to preserve the beam. This decision was reversed on appeal. 958 N.E.2d 739 (2011). The case was subsequently appealed to the Illinois Supreme Court.

The majority found that the plaintiffs failed to demonstrate any affirmative conduct by Keeley showing its intent to voluntarily undertake a duty to preserve towards the plaintiffs. On the issue of voluntary undertaking, the Supreme Court stated that a voluntary undertaking requires some affirmative acknowledgement or recognition of the duty by the party who undertakes the duty. The factors that the Supreme Court assessed in coming to this conclusion were that Keeley did not acknowledge the significance of the beam as evidence in potential future litigation, he did not move the beam from its position in the creek nor did he relocate the beam to a position where it would be protected from loss or destruction.

Plaintiffs also argued that Keeley owed a duty to preserve due “special circumstances.” The Supreme Court dismissed this on the basis that something more than possession and control are required, such as a request by the plaintiff to preserve the evidence and/or the defendant’s segregation of the evidence for the plaintiff’s benefit.

Chief Justice Thomas Kilbride dissented, stating the record showed far more than Keeley’s mere possession and control. The dissent argued that the majority only addressed the relationship prong of the Boyd test and fails to address the foreseeability test.

Perhaps the dissent gives future plaintiffs sufficient scope for a decision on this matter to be challenged again in the future.

Keep it Light

Tom Ciesielka is President of TC Public Relations (www.tcpr.net). Tom has more than 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.

When I think of the U.S. Supreme Court, a serious atmosphere comes to mind because they make decisions that affect our nation, policies, and even life and death. Here in Chicago, law firms also tend to be serious because if every detail is not covered, then the attorneys can lose a case and even affect their reputation for years to come. However, sometimes it’s good to step back and take a look at how attorneys approach their work and publicity efforts because there are times when being lighthearted can be effective.

I’m suggesting this because I saw a blog post that Jay Wexler, a law professor at Boston University, wrote on his website called “Supreme Court Humor.” Basically, it’s about a “study” that he did to see how many laughs each justice got in the courtroom. According to the graphic on his site, which came from The New York Times, Justice Antonin Scalia got the most laughs when Wexler conducted his study in 2005.

Who would think that the Supreme Court would be the subject of such research, followed by lots of media coverage about their humor? It’s an example of how doing something unique and beyond the usual boundaries of the legal profession can get you media attention. Of course, you don’t want to make it too contrived, but to augment your own practice. Some attorneys prefer to create interesting websites to promote their firm, such as Kottler & Kottler in Los Angeles, which has a cartoonish style. And speaking of cartoons, attorney Bob Kohn filed a cartoon amicus curiae in an Apple case, which is probably the only time such a brief has been submitted.

So the next time you’re assessing the image of your own practice or that of your law firm, think of ways you can lighten up to make you or your firm stand out. You can enhance your image by posting personal pictures of your vacation, pets or hobbies on your site or blog, or share information that’s outside the usual seriousness of the legal profession, such as the weirdest sculptures you’ve seen around Chicago. In the midst of a heavy workload, sometimes it makes sense to have a bit of fun.