Monthly Archives: January 2013

Appeals court reviews expert testimony

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.

Any lawyer with an upcoming trial should put some time aside to review the Illinois Appellate Court case of Klingelhoets v. Charlton-Perrin 2013 IL App (1st) 112412. The opinion will be explored  over the following two entries, discusses opening and closing statements, the calling of certain witnesses, discussion of the cost of treatment and the verdict of a jury. The case arose from Defendant’s appeal against a jury verdict in favor of plaintiff for the amount of $713,601. The plaintiff in this matter was crossing the street via a crosswalk with a group of colleagues when defendant ran a red light and struck plaintiff. The defendant admitted liability. The plaintiff refused medical attention at the scene and went to dinner with friends. While at dinner she fell ill and went to the emergency room.

The defendant contends that the trial court made five errors in the course of the trial and that the verdict was contrary to the manifest weight of evidence and should have been vacated for a new trial. Defendant asserted that plaintiff made repeated and unfair attacks on her medical expert. The plaintiff’s counsel referred to the expert as a “hired witness” who “made a career out of this.” In the plaintiff’s closing argument, the expert’s work was described as “an assembly line of defense opinions and reports.” The plaintiff also described the expert as “riding the defense train” for the last several years. The appellate court stated that opening statements are meant to inform the jury of what the parties intend to prove at trial. No comment should be made therein that an attorney cannot or will not prove. Reversal based on improper comments made during opening and closing statements will only occur where comments have been made that deliberately result in substantial  prejudice to the opposing party such that the result of the trial would have been different had the comments not been made. The court stated that it is well-established that a party is afforded broad latitude in making their closing argument. The court found that the comments in this case did not cause any substantial prejudice against the defendant because they were all supported by fact in evidence before the jury. The court found that it was an undisputed fact that the expert was a “hired” witness. It was also true that the expert’s entire professional time was now devoted to reviewing medical cases; it was also true that 99 percent of the time, he works for defendants. No prejudice was found from these statements.

The court found that a remittitur should only be employed when a jury reward falls outside the range of fair and reasonable compensation, appears to be the result of passion or prejudice or is so large that it shocks the judicial conscience. The court found that the decision was not against the manifest weight of evidence. The court also found that the jury’s breakdown of its award was appropriate and in line with the evidence presented at trial.

A treacherous legal hypo about online defamation

Nick Augustine is a freelance writer, broadcaster, publicity and marketing strategist, and he teaches SEO 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. Connect via @NickAugustinePR, @APIFCharity and Nick Augustine PR.

You should be concerned with the dark side of social media communication. Not only are Facebook, Twitter and LinkedIn potentially troublesome, blogs and emails are ripe for nefarious use. Are we a culture who pushes the envelope? What happens when we go too far? Does Himmel apply? During a planning phone call for an upcoming MCLE on point, I learned about a blog slamming local judges and attorneys. The accusations I saw were astounding and incendiary. What does a member of the bar do when they are targeted online?

Smear campaigns are not a new phenomenon but the ease in of distribution is compelling. Armed with enough SEO skills to be dangerous, a “watchdog” blogger can cause real trouble when they share negative content in their social media channels. If the title is catchy and enough people “like” and “share” the post, readers might assume the author is credible and the statements in the blog are true. Social communities like Facebook are ripe for gossip and public criticism.

Awareness of the issues and potential fallout can damage victims professionally and financially. Imagine the following hypo: Carol a rogue client, upset with the outcome of litigation, publishes and promotes a negative article about Alan, an attorney, and the article is full of factual misstatements and condemnations. Bob the businessperson knows and likes Alan and refers Roger for a legal consultation. The next day Roger searches for Alan and on the first page of the search results, he sees Carol’s angry article. Roger decides not to call Alan and instead calls Bob to let him know Alan might have some problems. Bob calls Alan about the comments online and despite Alan’s efforts at refuting the Carol’s bogus complaints; Bob seems to shy away from Alan.

What would you do as the lawyer when Alan calls you to seek your advice about a defamation claim against Carol? Did Alan and Carol execute an attorney/client contract? Did that agreement address social media communications? What If Alan and Carol entered an agreement with a clause indemnifying Alan from Carol in the event she caused Alan’s damages?

Add some more facts to the hypo involving Alan, Bob, Carol, and Roger: Alan starts posting comments on Facebook and Twitter that Carol’s article is defamatory and full of lies. Linda, a newly admitted lawyer has a friend who works at the same firm as Alan, the friend, who dislikes Alan, shares a copy of Carol’s article, and Linda discovers the article containing allegations of professional misconduct. Fearing she is obligated to report under Himmel, Linda sends the article to the ARDC. Discuss!

Fire up your pictures

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

I’ve been saying for a while that one way to promote yourself is through photos, and I was reminded of their importance when I saw a fire. Actually, I didn’t see a real fire where I live or work, but I’ve been following the story about a big fire in Bridgeport. Even though we hear about fires throughout Chicago, we might not pay much attention to them, unless they’re part of a case that an attorney is working on or if there is a lot of drama surrounding them.

Since that fire in Bridgeport was in an abandoned building, it didn’t seem like a big deal, but then I saw photos of it popping up on Facebook and other social media. What got people’s attention was the aftermath of the fire. The firemen spent hours in frigid temperatures fighting the blaze, and the water they used ended up freezing so that the building looked beautiful.

At first, stunning photos were posted on the Chicago Tribune website. Then the social news site BuzzFeed posted “amazing photos of [the] beautifully icy aftermath” that were taken by photographers from various media services. After that, news websites around the world posted photos, including the Wall Street Journal. Who would’ve thought that a fire in an area of the city that isn’t visited by many people would become worldwide news?

I often talk about the speed of modern media, and how attorneys have to be ready to respond because the news cycle happens in hours and even minutes. When you have a serious case that is getting a lot of publicity, you might feel pressure to act responsibly so that you don’t get negative press. However, in other parts of your life, such speed could work in your favor. Even if you simply see a really beautiful bird on your vacation, take a picture and post in on your website and in other social media. You don’t need the fancy cameras that professional photographers have; you can just use your phone. After all, you never know where your photo might end up and what attention it can get to help your reputation.

Why Every Young Attorney Should Want a Mentor – Or Three

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 Professionalism & 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.

In this blog, Elizabeth Spellmire Francis, a recent graduate of The John Marshall Law School, shares her thoughts on the value of mentors.

Frossard: Elizabeth, law students and recent graduates are frequently told to “find a mentor” and “network.”  What tips and strategies would you suggest to put these words into action?

Francis:  What no one tells you during law school is that finding a mentor and networking is not just about finding a successful person for the sole purpose of handing them your card.  Rather, it is about creating genuine, personal relationships with individuals that you respect.  More importantly, it is about holding on to those meaningful relationships throughout your career.  I speak from experience.

I am the lucky daughter of George W. Spellmire, a legal malpractice attorney here in Chicago.  As such, I was raised constantly surrounded by Chicago attorneys with whom I have intentionally stayed in touch.  Though it took me a few years after college to find my way to law school, I knew that in the end – I was going to be a Chicago lawyer, like my father.  Notably, I did well in law school.  I studied hard and I worked part-time.  Though my success in law school played a significant role in securing my first job, it was the personal relationships that I continued to hold onto and develop throughout law school that got my foot in the door.

The most important tip I can give to a law student, or new attorney, is to develop a genuine and personal relationship with your mentor, the attorney you exchanged emails with at the networking event, the family friend that is a lawyer, or a professional that you admire and respect.  That means: make it a priority to send emails and check in with these people.   Ask them to lunch, buy them a drink, and attend seminars when they speak.  It might be time consuming and take some effort, but in the end, it will open doors and create unforeseeable opportunities.  More importantly, you will create a network of people that not only care about you, but have an interest in your success.  Don’t forget, you are a part of their network as well.

Following this approach has had a significant impact on my professional career.  A casual lunch with a former associate of my father’s turned into my first job as an attorney.  A former classmate got me involved in the JMLS mentor program, which has given me yet another amazing opportunity to develop a meaningful and professional relationship.  When I started practicing, the first person I called was a long-time mentor, a lawyer I have known all my life, and he gave me invaluable advice over a drink one night after work.  I cannot emphasis my advice enough: it’s all about developing personal relationships with people and holding on to them.

Margaret Frossard can be reached by email at mfrossar@jmls.edu or by phone at (312) 427-2737, ext. 112. To view her previous blogs, go to professionalism.jmls.edu.  Frossard’s next blog discusses the value of a legal education from the perspective of a recent law school graduate.

Bill on med-mal attorney fees goes to governor

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.

HB5151 was recently passed by the House of Representatives. The bill containing a measure to cap attorney fees in medical malpractice cases was recently passed by the Illinois General Assembly. If the bill becomes law, attorney fees in medical-malpractice cases will be capped at one-third of a plaintiff award and lawyers will be barred from petitioning the court for higher fees. Under the current system, plaintiff attorneys in medical-malpractice cases can only seek fees of one-third of the first $150,000 of a medical malpractice award, 25 percent of the next $850,000 and 20 percent of any reward more than $1 million. These rules were perceived as being unfair as plaintiff attorneys in other types of personal-injury cases can seek one-third of an award, whereas attorneys in medical malpractice cases have these restrictions. The Illinois State Medical Society, which opposes this bill, has calculated that the bill would increase attorneys’ fees on a $10 million award in a medical-malpractice case from $2.06 million to $3.33 million.

The bill also re-enacts and repeals provisions of the Code of Civil Procedure in order to conform to two Illinois Supreme Court rulings of Best v. Taylor Machine Works 179 Ill.2d 367 (1997) and Lebron v. Gottlieb Memorial Hospital 237 Ill.2d 217 (2010) on medical malpractice reform. In Best, it was found that four provisions of the Civil Justice Reform Amendments of 1995, which made changes in tort recovery, liability and procedure, violated the Illinois Constitution. The Court found in Best that the unconstitutional provisions could not be severed from the act, so the act was rendered invalid. In Lebron, it was found that the caps on noneconomic damages in medical-malpractice cases violated the separation of powers. The Lebron suit alleged that the damages of a minor who suffered severe and permanent injuries due to the health care she received at birth would go beyond the cap. In finding that the provision violated the separation of powers, the court rejected the health-care provider’s claim that the statute was a valid exercise of the police powers upon finding the issue was not the wisdom of the law, but whether the law unduly infringed on the judiciary’s power.

Furthermore, the bill also includes a provision that would create a $250 million cap on the amount of money defendants in civil litigation against tobacco companies have to post as bond in order to appeal a ruling. The legislation, which was backed by ITLA, was approved by a margin of 67 to 46. The Bill now goes to Gov. Pat Quinn for his approval.

Best lawyers use better interpersonal communication skills

Nick Augustine is a freelance writer, broadcaster, publicity and marketing strategist and he teaches SEO 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.

Last week, I was talking to a friend who is a judge in a local domestic relations court. My friend expressed concerns about young attorneys and their perceived ability to communicate. Communication is a key component of law practice. The judge complained that motions and pleadings are poorly written and young counsel seem hesitant to pick up the phone and negotiate with opposing counsel, and instead only communicate through e-mail and text. Years ago, Stephen Hawking started talking about the dangers of reliance on technology and the breakdown of interpersonal human interaction. If we only speak through screens and mobile devices, we miss key components of what makes us successful.

Successful communicators know that interpersonal communication is contextual. Communication is more than the exchange of messages. When, in person, we can see another’s reaction to what we say. How are they sitting? Are they engaged? What fires up your opponent? The environment in which we interact can also affect the quality of an exchange. Attorneys meeting in an office during business hours can produce a more targeted discussion where the parties walk away from a memorable event.

Why does it all need to be an event? It doesn’t. There seems little reason to meet face-to-face to schedule or manage housekeeping. When it comes to major decisions, however, the benefits of interpersonal meetings as events outweigh the efficiency savings of an e-mail or letter exchange.

Applied to law practice, using the domestic relations practitioners as examples, consider the importance of a real meeting of the minds among counsel when negotiating for a client. If you prepare and sit down with an opponent to discuss your client’s positions, you use all five senses. The more senses we engage, the better we will learn and commit to memory the various elements of the transaction. Look at communication like a transaction with multiple elements. The non-verbal contextual clues are elements, and when used like a poker player, these elements can be useful when you notice them.

Back to the concerned judge, I am not sure why the quality of writing suffers, but if I had to point a finger, the 140-character impact might be to blame. Do we lose meaning when we do not complete a sentence? Do abbreviations dilute meaning? My advice to the new classes of legal writers: Learn how to be concise but outline your points and offer quality evidence and authority in your writing where possible. Legal writing is mechanical and follows mathematic-like rules. When writing, show your math and write clearly, because, IMHO, the judge isn’t likely 2 LOL at UR OMG allegations and IDK replies.

Gun debate rages on

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.

The issue of gun control has become one of the most important issues of public debate in light of the series of mass shootings in 2012, particularly the tragic Sandy Hook massacre. However, the debate on gun control was already in full swing in Illinois when the Sandy Hook school shooting occurred.  The 7th U.S. Circuit Court of Appeals ruled in early-December that Illinois’ ban on carrying a gun in public was unconstitutional. The court declared that the Second Amendment confers a right to bear arms for self-defense, which was said by the majority to be as important outside the home as inside. Until that point, Illinois was the only state to not have some form of a concealed carry provision in place. The court gave the state 180 days before the decision will be returned to the lower house to be implemented. This time period is designed to enable the legislature to take action upon the ruling.

The debate on gun control suddenly took on a new life on Dec. 14 when 20 children, along with 6 adults, were gunned down in their classrooms in Newtown, Conn. The focus in Illinois has now shifted to our elected officials and what actions they will take in order to prevent a similar disaster from occurring in this state. Attorney General Lisa Madigan submitted a motion asking that the 7th Circuit hear the matter en banc.   Madigan claims that the decision goes beyond what the U.S. Supreme Court has held and also conflicts with decisions by two other federal appellate courts. However, Madigan’s request does not affect the 180-day timeline for the drafting of a new law. The appellate court ruled that the state had not made a strong enough case that a gun ban was vital to public safety. In order to succeed at any potential rehearing, the state will have to address this matter in more detail.

Mayor Rahm Emanuel recently announced that he would introduce an ordinance on the matter of gun control after state lawmakers failed to reach agreement on the matter. The mayor has yet to give details on what he plans to do, but it is expected that he will address the issues associated with lost or stolen guns. Emanuel may take cue from current guidelines in New York. In order to purchase a gun in New York, you need photo identification, must give fingerprint samples, have four character witnesses and disclose any drug use or any history of mental illness. If you are business seeking to purchase a gun for protection, you have to submit your business tax returns, bank deposit slips and payroll information. Permits to own a gun in New York expire after 3 months.

While we cannot be sure of the shape any new gun control measures will take, we can be sure they the measures will be challenged in courts. In any event, we are just at the beginning of a long, arduous and emotive process.