The Bar News

Bar News Sections

Illinois Bar Journal

  • July 12, 2017 | Practice News
    Omit That Oxford Comma at Your Peril

    Democrats and Republicans. Cubs fans and Cards (or White Sox) fans. Oxford comma devotees and detractors. Is that how it is in your workplace?

    Well, score one for the Oxford comma contingent. As Rex Gradeless put it in the May issue of The Public Servant, newsletter of the ISBA Government Lawyers Committee, a "recent federal appellate court decision may put the cost of a single missing comma at $10 million." Gradeless reminds us that the Oxford comma is "placed immediately before the coordinating conjunction (usually 'and' or 'or') in a series of three or more terms. For example, a list of three Illinois counties might be punctuated either as 'Hardin, Pope, and Calhoun' (with the Oxford comma), or as 'Hardin, Pope and Calhoun' (without the Oxford comma)."

    In the case in question, Maine truck farmers argued that they were included in a statute requiring overtime payments, while the Oakhurst Dairy argued they were excluded. The overtime statute excluded employees involved in "[t]he canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of [food products]."

    3 comments (Most recent July 13, 2017)
  • July 6, 2017 | Practice News
    The Checklist Manifesto for Lawyers

    In his bestselling book The Checklist Manifesto: How to Get Things Right, physician and New Yorker writer Atul Gawande argues that checklists are essential to reducing errors and increasing efficiency. He points to the airline industry's reliance on flight-related checklists - and its remarkable safety record - as evidence of the power of checklists to make processes work, and argues that the medical profession should expand the use of checklists to save lives and improve outcomes.

    "The natural extension to the legal field is that lawyers must use checklists as much as possible," writes Kerry Lavelle in the June issue of The Bottom Line, newsletter of the ISBA Standing Committee on Law Office Management and Economics. "For example, why not have a definitive checklist for a residential real estate closing? A commercial real estate closing? An asset purchase agreement? Stock purchase agreement? Commercial lease review?"

    Nor is the value of checklists limited to transactional processes, Lavelle writes. "Imagine having a compelling and detailed checklist, or litigation handbook, specific to your firm's [litigation] 'process' encompassing the local rules where every new attorney and attorney thereafter would need to understand in the process for litigation," he writes. Find out more in the July Illinois Bar Journal.

  • June 23, 2017 | Practice News
    Law Firm Offers Second Opinions for Clients

    When patients get a life-changing medical diagnosis, they often seek a second opinion. When clients have questions about the direction that their legal counsel takes, they may think they have nowhere to turn.

    In fact, attorneys can provide clients with second opinions, although most do not advertise them as a service. Valorem Law Group in Chicago is one of the first law firms to feature second opinions as part of its practice. Valorem, also known for its alternative fee agreements (see the October 2014 IBJ cover story), has been providing legal second opinions to individuals and companies for the past two years.

    Nicole Auerbach, one of Valorem's founding partners, says that clients can "save a lot of money and angst" by seeking second opinions. Clients seeking second opinions can ask a wide range of questions. Some want to know if a proposed settlement is acceptable. Others want to get a second opinion about the direction their counsel is taking in a specific matter. Some want a reality check on what they're being billed and what they're told it will cost to complete a representation. Auerbach says that "there is really no topic that doesn't lend itself well to a second opinion."

    Find out more in the July Illinois Bar Journal.

    1 comment (Most recent June 29, 2017)
  • June 8, 2017
    Illinois Leads the Pack in Dog-Bite Claims

    People love their pets. However, sometimes things go wrong. In particular, dogs bite people, causing significant injuries.

    In Illinois, and nationwide, dog-bite claims are on the rise. According to the Insurance Information Institute, dog bites and dog-related injuries accounted for more than one third of homeowner insurance liability claim dollars paid out in 2015 (http://bit.ly/21OVQJQ). In Illinois, this is due, in part, to the Animal Control Act (510 ILCS 5/1, et seq.).

    In some jurisdictions, there is the "one free bite rule" - a dog owner may not be liable for damages caused by a dog bite if the dog has never bitten a person before. Not so in Illinois. The Act creates heightened liability for dog owners. It provides that if a dog or other animal attacks, attempts to attack, or injures a person without provocation, then the owner is liable for the full amount of any injuries sustained (510 ILCS 5/16.5). This heightened liability is designed to "encourage tight control of animals in order to protect the public from harm." Hayes v. Adams, 2013 IL App (2d) 120681, ¶ 12.

    This heightened liability naturally leads to more dog-bite claims. According to State Farm, it paid out $14 million across 323 dog-related claims in Illinois in 2016 (http://bit.ly/2qweL3l). Illinois ranked second only to California on the company's Top 10 list for dog-bite claims.

    Find out more, including what the "reasonable dog" standard is, in the June Illinois Bar Journal.

  • May 30, 2017
    Big Change to Child Support Calculation: New Income Shares Method Takes Effect July 1

    On July 1, 2017, a major change for calculating child support obligations takes effect. Last year, Public Act 99-764 was enacted. The legislation amended the Illinois Marriage and Dissolution of Marriage Act to replace the percentage guideline formula with the income shares model for calculating child support. This is a significant change that brings Illinois in line with 39 other states and the District of Columbia, which already use the income shares model.

    Since 1984, Illinois has used the percentage guideline formula to determine child support. It arrives at the child support obligation by multiplying the payor's net income by a statutorily set percentage, which increases based on the number of children. This model is now considered outdated "because it does not reflect actual child rearing costs or allocate those costs between the parents." (Find out more more in the December 2016 IBJ at http://bit.ly/2qYq8Rr). Rather, the old formula required payors to simply pay a percentage of their net income regardless of the actual child rearing costs. Oak Brook attorney Margaret A. Bennett believes the old model often caused acrimony between divorcing parents because it is not always perceived as equitable and accurate.

    1 comment (Most recent June 1, 2017)
  • May 24, 2017
    That Ticking You Hear? It's the Countdown to Mandatory E-Filing

    E-Day is approaching for the Illinois court system. The deadline days for statewide mandatory e-filing, that is.

  • May 9, 2017 | Practice News
    A Drone Flies Over Your Backyard – Is That Trespassing?

    It's Sunday afternoon and the neighbor kid's drone comes buzzing over your yard, maybe 50 feet overhead. Like any good lawyer you ask yourself, "Is this drone flight violating my airspace?" (If you're a really good lawyer, you refer to "airspace" as "vertical curtilage.")

    The short answer is yes, writes Elizabeth Austermuehle in the April ISBA Real Property newsletter. "[I]n the absence of federal or state regulations granting drones the right to fly over private property without the property owner's permission, drones do not have the right to do so," she writes. Though Illinois has passed legislation ordering up a task-force report on drone regulation (due July 2017), state law does not currently regulate drone use.

    As for federal law, the FAA has long permitted flights over private property in "navigable airspace," which generally applies to the space 500 feet and higher above ground, Austermuehle writes. But it hasn't had much to say about drones - at least not until June 2016, when the agency "released its first operational rules for routine use of small [unmanned aircraft systems]," she writes. "The rules offer safety regulations for UAS weighing less than 55 pounds conducting non-hobbyist operations. Among other things, the rules require drone operators to keep the drones within their visual line of sight and prohibit flights over unprotected people on the ground who are not directly participating in the UAS operation."

  • May 3, 2017 | Practice News
    Accusing Judges: Balancing Lawyer Ethics and Free Speech

    All attorneys have opinions about judges. Those opinions are sometimes negative and are often shared around the office, or when talking shop with a colleague.

    But lawyers should beware of voicing those opinions in a more public forum. Rule 8.2 of the Illinois Rules of Professional Conduct prohibits attorneys from knowingly making false statements concerning the qualifications or integrity of a judge.

    So when do opinions become lies? The First Amendment protects people who are stating opinions. It doesn't protect defamatory speech. And the issue gets even more complicated when that speech is part of a document filed with the court.

    Some years back, the seventh circuit considered the nexus between the First Amendment and ethical rules in In re Palmisano, 70 F.3d 483 (7th Cir. 1995). There, the court reviewed a rule to show cause why an attorney who had been disbarred in Illinois should not be disbarred by the U.S. District Court for the Northern District of Illinois as well.

  • April 26, 2017 | Practice News
    How to Choose a Digital-Age Document Management System

    Twenty years ago, law firm document management revolved around meticulously organized manila files, metal drawers, and bankers boxes, with instructions not to fold, spindle, or mutilate them as they were being physically transported to another attorney or a courtroom.

    While those physical manifestations still remain to varying degrees in law offices, document management today is more likely to focus on electronic files that need to be created and managed on a server or in the cloud, with instructions to ensure they're adequately encrypted before being electronically transported to one of the aforementioned destinations.

    Paul Unger, a partner with Affinity Consulting Group who works with attorneys and law firms, recommends that legal offices use a top-shelf, sophisticated electronic document management system to handle the creation and storage of most types of documents.

    "If we're talking about transactional attorneys - or even if it's litigation, but it's your own work product, your own correspondence and responses - anything we would draft ourselves, pleadings, motions, I would recommend in today's age that a firm have a document management system," he says. Unger recommends four primary choices: Worldox, NetDocuments, iManage (formerly Interwoven Worksite), and Open Text (formerly Hummingbird). Find out more in the May IBJ.

  • April 18, 2017 | Practice News
    Study: Substantive Errors Still Generate the Most Malpractice Claims

    "If you think that most malpractice claims come from administrative errors like the failure to file documents, think again," writes Karen Erger in the April Illinois Bar Journal.

    "[Consistently, the ABA's quadrennial study of malpractice claims has] found that substantive errors are the largest category of errors alleged in legal malpractice claims, Erger writes in her IBJ Loss Prevention column, sponsored by the ISBA Mutual Insurance Company. "In the 2016 study, for the first time since the 1999 study, substantive errors account for more than half of alleged errors. And the single most common error is a substantive error, namely 'Failure to Know/Properly Apply the Law,' which accounts for 15.38 percent of claims in the 2016 study. This validates the risk management maxim that dabbling in unfamiliar areas of practice is risky business, and underscores the importance of concentrating your practice on a few areas of law so that you can stay competent and capable in those areas," she writes.

    In fact, administrative errors have fallen "from 30.13 percent of claims in the 2011 study to 23.15 percent in the 2016 study," Erger writes. "The study's authors suggest that '[b]etter computer calendaring systems, e-filing, electronic record keeping, and multiple modes of communication with clients appear to have assisted attorneys in managing their law practice.'"